RITE FOODS LIMITED & ANOR v. MRS. CECILIA ADEDEJI & ORS
(2019)LCN/13475(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of June, 2019
CA/L/626/2017
RATIO
JOINT TORTFEASORS WILL BE LIABLE IN DAMAGES FOR INJURIES CAUSED BY JOINT ACTIONS
It is settled law that joint tortfeasors who are sued jointly and severally would each be liable in damages for the injuries caused by their joint acts. See DICKSON vs. ASSAMUDO (2013) LPELR (20416) 1, IZUOGU vs. EMUWA (1991) 4 NWLR (PT 183) 78, IYERE vs. B.F.M. (2008) 12 MJSC 102 and UMARCO (NIG) PLC vs. OFEELY AGRO-FARMS & EQUIPMENT CO, LTD (2016 LPELR (41550) 1 at 22-23. In OKONKWO vs. OKOLO (1988) LPELR (2481) 1 at 35, Karibi-Whyte, JSC stated:
It is the law, that where there is an action against tortfeasors, they are jointly liable for the tort which they both commit or for which they are both responsible …PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
APPEAL: WHEN THE APPELLATE COURT WILL INTERFERE WITH THE AWARD OF GENERAL DAMAGES
In UBA PLC vs. BTL INDUSTRIES LTD (2006) LPELR (3404) 1 at 118-119, the apex court dealing with when an appellate Court will interfere with award of general damages held, per Tabai, JSC:
…an appellate Court ought not to interfere with such award of general damages unless:-
(a) where the trial Court had acted under a mistake of law;
(b) where he has acted in disregard of principles; or
(c) where he has taken into account irrelevant matters or failed to take into account relevant matters; or
(d) where he has acted under a misapprehension of facts; or
(e) where in justice would result if the appellate court does not intervene; or
(f) where the amount awarded is either ridiculously low or ridiculously high that it must have been a whole erroneous estimate of the damage.
See also OBERE vs. BOARD OF MANAGEMENT, EKU BAPTIST HOSPITAL (1978) 6-7 SC 15 and UNION BANK LTD vs. ODUSOTE BOOKSTORES LTD (supra).PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
LIEN: GENERAL DEFINITION
Now, a lien broadly speaking, is a right to retain that which is in ones possession belonging to another until certain demands of the person in possession are satisfied. See AFROTEC TECHNICAL SERVICES (NIG) LTD vs. MIA & SONS LTD (supra) and OGUNTIMEHIN vs. UNITY BANK (2017) LPELR (43244) 1 at 36-37. A legal lien in its primary or legal sense means a right at common law in one man to retain that which is rightly and continuously in his possession belonging to another until the present and accrued claims of the person in possession are satisfied: LIVESTOCK FEEDS PLC vs. OKEZIE (2000) 10 NWLR (PT 775) 341 at 354.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
COURT: DUTY OF THE COURT: THE PRIMARY DUTY OF THE TRIAL COURT
It is rudimentary law that the primary duty of the court of trial is to evaluate and ascribe probative value to the evidence adduced. Evaluation of evidence is basically the assessment of the facts by the trial court to ascertain which of the parties to a case before it has more preponderant evidence to establish the case propagated. See ONWUKA vs. EDIALA (1989) 1 NWLR (PT 96) 182 at 208-209, OYADIJI vs. OLANIYI (2005) 5 NWLR (PT 919) 561 and AMEYO vs. OYEWOLE (2008) LPELR (3768) 1 at 9. The evaluation involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. A Court of trial has the duty to consider the evidence adduced in respect of any facts on which issues were joined, decide which evidence to prefer on the basis of how the evidence preponderates and then make logical and consequential findings of facts: ADEYEYE vs. AJIBOYE (1987) 1 NWLR (PT 61) 432 at 451 and STEPHEN vs. THE STATE (1986) 5 NWLR (PT 46) 978 at 1005.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
THERE MUST BE A RECORD HOW THE TRIAL COURT CAME TO A CONCLUSION ON EVIDENCE
The law is that there must be on record how the trial court arrived at its conclusion of preferring one piece of evidence to the other. See AKINTOLA vs. ADEGBITE (2007) ALL FWLR (PT 372) 1891 at 1898 and FEDERAL HOUSING AUTHORITY vs. OLAYEMI (2017) LPELR (43376) 1 at 75.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
THE DUTY OF LAW ENFORCEMENT AGENCIES WHEN COMPLAINTS ARE MADE TO THEM
In RAPU vs. IKUEGBOWO (2018) LPELR (45253) 1 at 28-30, I was privileged to state the legal position as follows:
It seems to be settled law that where all a person does is to lay a complaint to the law enforcement agencies, it is for them to decide what action they should take on the report or complaint. See GBAJOR vs. OGUNBUREGUI (1961) 1 ALL NLR 853 and FCMB vs. ETTE (2008) 22 WRN 1.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
THE RIGHT OF A PERSON WHO AN OFFENCE HAS BEEN COMMITTED AGAINST
By all odds, any person who feels that an offence has been committed has a right to report to a law enforcement agency, which upon the receipt of such a report has the statutory power to investigate, arrest, interrogate, search and detain any suspect: ONAH vs. OKENWA (2010) 7 NWLR (PT 1194) 512 at 536 and Section 4 of the Police Act.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICE
JOSEPH SHAGBAOR IKYEGH justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE justice of The Court of Appeal of Nigeria
Between
1. RITE FOODS LIMITED
2. MR. SELEM ADEGUNWAAppellant(s)
AND
1. MRS. CECILIA ADEDEJI
2. MASTER TEMILOLOWA ADEDEJI
3. MASTER MOJOLAOLUWA ADEDEJI
4. MISS CHRISTIANA ADEDEJI
5. INSPECTOR GENERAL OF POLICE
6. COMMISSIONER OF POLICE, LAGOS STATE
7. DSP, PHILOMINA ENWEREM
8. INSPECTOR DAVID EGBONRespondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal arose from the action for the enforcement of the fundamental right to life of the deceased husband and father of the 1st-4th Respondents/Cross Appellants. The deceased was a distributor of the products of the 1st Appellant/Cross Respondent and following a report which was made that the deceased issued them a dud or dishonoured cheque, the deceased was arrested by the Police. Unfortunately, the deceased died while in Police custody; consequent upon which the action was instituted by the widow and children for the enforcement of his fundamental right to life. In the said action which was commenced by Originating Motion before the Federal High Court, Lagos Division in SUIT NO. FHC/L/CS/275/2014: MRS. CECILIA ADEDEJI & ORS vs. INSPECTOR GENERAL OF POLICE & ORS, the reliefs claimed shorn of the particulars of exemplary/aggravated damages are as follows:
i. A DECLARATION that the untimely death by suffocation of the deceased on the 9th of February, 2012 while in the custody of the Defendants is unlawful, unconstitutional, illegal and violates the
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deceaseds fundamental human rights to life as enshrined under Section 33 of the 1999 Constitution of the Federal Republic of Nigeria, Article 4 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap. A9 Laws of the Federation and Universal Declaration of Human Rights.
ii. A DECLARATION that the arrest, detention of the deceased and subsequent denial of administrative bail by the Defendants on the 9th of February, 2012 is arbitral, unlawful, unconstitutional, illegal and violates the deceaseds fundamental human rights as enshrined under Sections 34, 35 & 36 of the 1999 Constitution of the Federal Republic of Nigeria, Article 7 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap. A9 Laws of the Federation and Universal Declaration of Human Rights.
iii. A DECLARATION that the 5th and 6th Defendants procurement and instigation of the 3rd and 4th Defendants to demand from the deceased N1, 000, 000.00 (One Million Naira) as part-payment of the debt allegedly owed the 5th Defendant and to secure a debt recovery/repayment deal from deceased in
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favour of the 5th Defendant is unlawful, unconstitutional, illegal and contrary to the provisions of the Nigerian Constitution and Section 4 of the Police Act Laws of the Federation 2004.
iv. A DECLARATION that Plaintiffs, like every Nigerian citizen, are entitled to the preservation of their lives and maintenance by their deceased spouse, father and bread winner and the deceaseds untimely death by suffocation while in the custody of the Defendants is unlawful, unconstitutional, illegal and violates the Plaintiffs fundamental rights as enshrined under the provision of Article 18 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act (Cap 10) Laws of the Federation of Nigeria, 1990 and Universal Declaration of Human Rights as preserved under Section 33 of the Constitution of the Federal Republic of Nigeria, 1999.
v. A DECLARATION that the confiscation or taking into custody of the Toyota Hiace Bus with registration Number AAA 389 YA and chassis Number JT121UHB200023129 registered in the joint names of the deceased and the 1st Plaintiff and the deceaseds goods (Rite Food Products) in the sum of
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N400,000.00 (Four Hundred Thousand Naira) since 9th February, 2012 by the 5th and 6th Defendants is unlawful, unconstitutional, illegal and violates the Plaintiffs fundamental human rights as enshrined under Section 44 of the 1999 Constitution of the Federal Republic of Nigeria, Article 14 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act Cap. A9 Laws of the Federation 2004.
vi. A DECLARATION that the conduct and actions of the 3rd-4th Defendants in their capacities as Police Officers who caused the untimely death by suffocation of the deceased is illegal and unconstitutional specifically to the fundamental rights of the deceased children (2nd-4th Plaintiffs) as it violates the Childs Rights Act 2003 particularly Sections 1: Best interest of Childs to be of Paramount Consideration in all Actions, Section 2: Child to be Given Protection and Care Necessary for his Well-Being, Section 3: Application of Chapter IV of 1999 Constitution, Section 4: Right to Survival and Development, Section 8: Right to Family and Private Life, Section 11: Right to Dignity of the Child, Section 12: Right to Leisure,
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Recreation and Cultural Activities, Section 13: Right to Health and Heath Services, Section 14: Right to Parental Care, Protection and Maintenance and Section 15: Right of Child to Free, Compulsory and Universal Primary Education, etc.
vii. A DECLARATION that the conduct and actions of the 3rd-4th Defendants as Police Officers who caused the untimely death by suffocation of the deceased is illegal and unconstitutional specifically to the fundamental rights of the Plaintiffs as it violates the Convention of the Rights of the Child particularly Articles 19, 24, 26, 27, 28, 29, 31, 32, 33, 34, 37, 39 and 40.
viii. A DECLARATION that the conduct and actions of the 3rd-4th Defendants in their capacities as Police Officers who caused the untimely death by suffocation of the deceased as a consequence of their actions in the course of their duties is illegal and unconstitutional specifically to the fundamental rights of the second, third and fourth applicants as it violates the African Charter on the Rights and Welfare of the Child 1999 particularly Articles 4, 5, 11, 12, 14, 15, 16, 18, 19, 20 and 31.
ix. AN ORDER compelling the 5th and 6th Defendants
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to release immediately and unconditionally, to the Plaintiff the Toyota Hiace Bus with registration Number AAA 389 XA and chassis Number JT121UHB200023129 and the sum of N400, 000, 00 (Four Hundred Thousand Naira) being the value of goods (Rite Foods Products) purchased by the deceased prior to his arrest and untimely death all of which are still in the custody of the 5th and 6th Defendants.
x. AN ORDER OF EXEMPLARY DAMAGES against the Defendants in favour of the Plaintiffs to deter the Defendants from engaging in conduct and actions that would lead to that which caused the untimely death of the deceased and to deter the Defendant from future violations of the laws cited herein in this matter.
xi. The sum of N1,000,000,000.00 (One Billion Naira) general damages against the Defendants jointly and severally for the loss and hardship caused the Plaintiffs for the untimely death of the deceased by suffocation while in the custody of the Defendants.
xii. AN ORDER compelling the Defendants jointly and severally to publish letters of apology (the contents of which must be first acceptable to the Applicants before publication to the Applicants, in at least
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three print and electronic media respectively with intense national coverage (including The Guardian, The Sun, The Punch, Channels Television, Africa Independent Television and Nigeria Television Authority Networks) for the untimely death of the deceased by suffocation while in the custody of the Defendants within one month of the judgment of this Honourable Court.
xiii. Such other order(s) the Honourable Court may consider just or appropriate for the purpose of enforcing or securing the enforcement of the Plaintiffs Fundamental Rights stated therein pursuant to ORDER XI of the Rules and Section 46 of the Constitution of the Federal Republic of Nigeria 1999 as amended in 2010.
xiv. And for such further order or other orders as this Honourable Court may deem fit to make in the circumstance of the case.
(See pages 261-263 and 265 of Volume I of the Records)
The lower Court took the view that there were conflicts in the affidavits filed by the parties and consequently ordered parties to file and exchange pleadings. The parties duly filed and exchanged pleadings and the matter went to trial, where the parties adduced testimonial
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and documentary evidence. In a considered judgment delivered on 16th December 2016, the lower Court granted all the reliefs claimed by the 1st-4th Respondents/Cross Appellants, save the omnibus reliefs claimed as relief numbers (xiii) and (xiv). The Judgment is at pages 627-666 of Volume II of the Records. The Appellants/Cross Respondents, who were the 5th and 6th Defendants at the lower Court, were dissatisfied with the judgment and appealed against the same by Notice of Appeal filed on 16th December 2016. However, the extant Notice of Appeal on which the appeal was argued is the Amended Notice of Appeal filed on 6th December 2017, which was filed pursuant to the order of the court made on 5th December 2017.
The 1st – 4th Respondents/Cross Appellants were equally dissatisfied with part of the decision of the lower Court and they filed a Notice of Cross Appeal on 31st October 2018. The said Cross Appellants Notice of Appeal was deemed as properly filed on 26th November 2018.
Consequent upon the compilation and transmission of the Records of Appeal, briefs of argument were filed and exchanged between the Appellants/Cross Respondents and the 1st
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– 4th Respondents/Cross Appellants. The 5th-8th Respondents/Cross Respondents did not file any processes in respect of the appeal and indeed did not appear at the hearing of the appeal when learned counsel urged the court to uphold their respective submissions in the determination of the appeal. I would first deal with the main appeal and thereafter the cross appeal.
THE MAIN APPEAL
The Appellants Brief of Argument was filed on 20th December 2017 wherein four issues were formulated for determination, namely:
(1) Whether on the evidence as found and accepted by the Learned Trial Judge, he was justified in granting the reliefs (x), (xi) and (xii) against the Appellants. Did the evidence as accepted by the Learned Trial Judge support his judgment? Grounds 1, 2, 3.
(2) Whether, in the circumstances of the case, the Learned Trial Judge was right in awarding general damages against the Appellants, and if so, whether the damages awarded were not ridiculously high or manifestly so excessive as to be a wholly erroneous estimate of the damages (if any) suffered by the 1st-4th Respondents (Grounds 4, 5, 9).
(3) Whether the Learned
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Trial Judge was right in holding that the Appellants had no right of lien over the Property of the Deceased, given the evidence on record in this regard and the Law applicable thereto Ground 7.
(4) Whether on the totality of the evidence before the Lower Court the 1st-4th Respondent were entitled to the reliefs granted them by the Learned Trial Judge (Ground 7, 10, 11).
The Appellants also filed a Reply Brief on 12th December 2018.
The 1st-4th Respondents Brief of Argument was filed on 31st October 2018 but deemed as properly filed on 26th November 2018. They stated that they were adopting the issues formulated by the Appellants but then proceeded to sought the said four issues by distilling their own issues as follows:
1. Whether the singular fact that the learned trial judge of the lower Court held that there was nothing wrong in law in Appellants reporting the deceased Lawrence Ademola Adedeji to the police represented by the 5th -8th Respondents on the alleged issuance of dud cheques by the deceased to the 1st Appellant, can be the basis for seeking to fault the subsequent decision of the said Judge
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jointly and severally holding Appellants and the said 5th-8th Respondents liable to reliefs (x), (XI) and (XII) of the 1st -4th Respondents granted by the judge.
2. Whether the learned trial judge of the lower Court was justified in his decision holding Appellants severally and jointly liable alongside the 5th 8th Respondents to pay the 1st 4th Respondents/Defendants of the deceased general and aggravated damages of N1billion given the circumstances of the case placed before the trial Court.
3. Whether the learned trial judge of the lower Court was right in holding that Appellants had no right to seize and impound the Toyota Hiace bus with registration number AAA 389 XA and chassis Number JT121UHB200023129 registered in the joint name of the deceased and the 1st Plaintiff, driven by the deceased to the 1st Appellants premises in the circumstances of the evidence place before the said learned trial judge.
4. Whether the lower Court was right in granting reliefs (III), (X) & (XII) of the 1st- 4th Respondents.
The issues crafted by the parties are the same in their true essence and purport. I would therefore
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employ the issues as distilled by the Appellants as the lodestar in considering the submissions of learned counsel and resolving this main appeal.
ISSUE NUMBER ONE
Whether on the evidence as found and accepted by the Learned Trial Judge, he was justified in granting the reliefs (x), (xi) and (xii) against the Appellants. Did the evidence as accepted by the Learned Trial Judge support his judgment?
SUBMISSIONS OF THE APPELLANTS COUNSEL
The Appellants submit that the lower Court having held that they did no more than discharge their civic obligation of reporting the commission of a crime to the Police which cannot amount to a wrong doing in law and that it was for the Police to account for what led to the death of the deceased was in error when it penalized the Appellants by granting reliefs (x), (xi) and (xii) against them. It was argued that where a trial Court arrives at a wrong conclusion from the accepted evidence or arrives at a decision which does not flow from the accepted evidence or a decision which is not supported by the evidence, an appellate Court will intervene and set aside the judgment. The cases of
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MAFIMISEBI vs. EHUWA (2007) 2 NWLR (PT 1081) 385 at 443 and LAYINKA vs. MAKINDE (2002) 10 NWLR (PT 775) 358 at 375 were referred to.
SUBMISSIONS OF THE 1ST- 4TH RESPONDENTS COUNSEL
Prefatorily, I have already set out the issues as distilled by the 1st-4th Respondents. However, in arguing issue number one, the 1st-4th Respondents once against reformulated the issue and proffered their submissions under the issue as reformulated. The reformulated issue number one argued by the 1st-4th Respondents is:
…whether there were no subsequent grounds in the appealed judgment on which the trial judge of the lower Court granted the 1st -4th Respondents reliefs (X), (XI) and (XII) despite an earlier decision of the said learned trial Judge that there was nothing wrong in law, in Appellants reporting the deceased Adedeji to the 5th-8th Respondents over an alleged issuance of dud cheques by the said deceased Adedeji to the 1st Appellants.
From the above issue as reframed and argued, it is evident that the 1st-4th Respondents were contending that there were other grounds on which the decision of the lower Court on the issue could be affirmed.
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However, the 1st-4th Respondents did not file a Respondents Notice of Contention as required by Order 9 of the Court of Appeal Rules. This being so, the contention on other grounds on which the decision could be affirmed are otiose and I will accordingly discountenance them, as much as possible, while considering the submissions of the 1st-4th Respondents.
It is the submission of the 1st-4th Respondents that the Appellants quoted the decision of the lower court out of con as there are findings on record showing that the lower court was worried about how the deceased died in Police custody after the lawful report. The 1st-4th Respondents continued their argument positing that the lower court ought to have accepted their submission that the Appellants report to the Police was actuated by sinister motive. It was opined that the fact that a Respondents Notice was not filed should not be a basis to upturn the decision of the lower court that was predicated on the culpable acts of the Appellants and 5-8th Respondents after the arrest of deceased.
APPELLANTS REPLY ON LAW
The Appellants submit that the 1st-4th Respondents not
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having filed a Respondents Notice of Contention cannot urge the Court to affirm the decision on any other grounds, more so, when they had filed a cross appeal which cannot co-exist with a Respondents Notice. The cases of MOHAMMED vs. ABDULKADIR (2008) 4 NWLR (PT 1076) at 138-139 and ANYADUBA vs. NIGERIAN RENOWNED TRADING CO. LTD (1990) 1 NWLR (PT 127) 397 at 407 were relied upon. It was conclusively submitted that the 1st-4th Respondents argument do not arise from the Appellants grounds of appeal, but were indeed the argument which the 1st-4th Respondents proffered in their cross appeal.
RESOLUTION OF ISSUE NUMBER ONE
In the prolegomenon, I stated that the 1st-4th Respondents cross appealed against part of the decision of the lower Court. In the Notice of Cross Appeal, the part of the decision of the lower Court appealed against is stated thus:
The decision of the lower Court that [sic] the act of the complaint of the 1st & 2nd Respondents to 3rd -6th Respondents/Police Officers that Cross Appellants breadwinner issued dishonoured cheques to them, amounted to no wrong doing in law.
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Given the thrust of the cross appeal one cannot under this issue begin to interrogate whether the findings of the lower Court that the Appellants did no more than report to the Police is correct. The crux of this issue is whether having so found, the lower Court was right when it ordered exemplary damages, N1 billion general damages and public apology against the Appellants.
Now, the 1st-4th Respondents action was for the due recompense following the unlawful death in police custody of their husband/father consequent upon a report made to the Police by the Appellants. It is settled law that joint tortfeasors who are sued jointly and severally would each be liable in damages for the injuries caused by their joint acts. See DICKSON vs. ASSAMUDO (2013) LPELR (20416) 1, IZUOGU vs. EMUWA (1991) 4 NWLR (PT 183) 78, IYERE vs. B.F.M. (2008) 12 MJSC 102 and UMARCO (NIG) PLC vs. OFEELY AGRO-FARMS & EQUIPMENT CO, LTD (2016 LPELR (41550) 1 at 22-23. In OKONKWO vs. OKOLO (1988) LPELR (2481) 1 at 35, Karibi-Whyte, JSC stated:
It is the law, that where there is an action against tortfeasors, they are jointly liable for the tort which they both commit or for
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which they are both responsible …
On the settled state of the law, in order for the Appellants to be responsible for the injuria, the damnum has to be attributable to them. In evaluating the evidence and ascribing probative value thereto, the lower Court stated the law as follows at pages 646-647 of Volume II of the Records;
The report of an alleged crime is not and can never be wrong under the law.
It is the duty of citizens of this country to report cases of commission of crime to the police for their investigation.
…Where a crime is reported it is within the discretionary powers of the police to decide whether to investigate such a crime and the manner in which to conduct such investigation.
The lower Court then conclusively found and held as follows:
It is therefore rightly submitted that the 5th Defendants act of performing its civil obligations of reporting a criminal act to the police cannot under any stretch of imagination form the basis of an action for the reliefs by the Plaintiffs. See also the case ofREV. PAUL ENANUGA & ORS. V. HON. NSEABASI (CORNELIUS) SAMPSON (SUPRA)<br< p=””>
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The involvement of the 5th & 6th Defendants herein had to do only with making a report to the police of Mr. Ademola Lawrence Adedejis act (which had become regular) of issuing dud cheques, whatever transpired between the police and the deceased subsequently was never within the boundaries and knowledge of the 5th & 6th Defendants; the report made to the police was without malice and devoid of any inference [sic] with the polices investigation of its report. The judicial authorities are in concurrence that under no stretch of imagination would the 5th & 6th Defendants be held liable on such basis.
This Court is therefore hold that the performance of its civil obligation by the 5th & 6th Defendants of reporting the crime of issuance of dud cheques cannot amount to a wrong doing in law.
(See page 648 of Volume II of the Records)
It is effulgent that the lower Court had found that there was no injuria which the Appellants caused. It is evident that the lower Court held that the involvement of the Appellants only had to do with making a report to the Police and that whatever transpired between the Police and the
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deceased subsequently was not within the boundaries and knowledge of the Appellants. Put differently, that the Appellants cannot be held liable for the untimely death of the deceased in police custody since all they did was report a criminal act to the Police.
In the light of this finding of the lower court, it was an incredible volte face when the lower court then granted reliefs of an order for exemplary damages, general damages and order for apology against the Appellants for the untimely death of the deceased. The legal principle is damnum sine injuria, id est, where there is no breach or wrong there can be no damages. See ANIKE vs. SPDC (NIG) LTD (2010) LPELR (11878) 1 at 18-19, OCEANIC BANK vs. ABEOKUTA COMMERCIAL & IND. CO. LTD (2014) LPELR (22937) 1 at 22 and Appeal No. CA/L/15/2016: SHEDOWO vs. A-G LAGOS STATE (unreported) delivered on 6th March 2019. (Reported as (2019) LPELR [no number assigned] 1 at 28). It is therefore inexplicable for the lower Court to have granted reliefs (x), (xi) and (xii) against the Appellants, after having held that they committed no wrong. In the circumstances, this issue number one is resolved in favour of the
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Appellants. Based on the evidence accepted and findings made by the lower court, it was not justified in granting the said reliefs against the Appellants.
ISSUE NUMBER TWO
Whether, in the circumstances of the case, the Learned Trial Judge was right in awarding general damages against the Appellants, and if so, whether the damages awarded were not ridiculously high or manifestly so excessive as to be a wholly erroneous estimate of the damages (if any) suffered by the 1st- 4th Respondents
Flowing from the manner of resolution of issue number one above, it is only the second limb of this issue that remains relevant, that is, whether the damages awarded were not ridiculously high or manifestly so excessive as to be a wholly erroneous estimate of the damages. Accordingly, the consideration of the submissions of learned counsel will be as it relates to this second limb.
SUBMISSIONS OF THE APPELLANTS COUNSEL
The Appellants submit that it was wrong for the lower Court to have awarded the sum of N1billion claimed as general damages when the Respondents did not adduce any evidence as to the earnings of the deceased and the annual
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dependency due to each of the 1st-4th Respondents. The case of TAYLOR vs. OCONNOR (1971) AC 115 at 140, OMOLE & SONS LTD vs. ADEYEMO (1994) 4 NWLR (PT 336) 48 at 72 and NWAFOR vs. NDUKA (1972) NSCC 206 at 208 were cited in support.
It was posited that the lower Court did not state how it arrived at the damages of N1 billion it awarded in the absence of any evidence as to the earnings of the deceased, his expenses on the 1st-4th Respondents and evidence of the number of years to be used as a multiplier. The quantum of general damages awarded it was asserted, was sentimental damages, which had no place in the law relating to award of damages. The cases of NEPA vs. INAMETI (2002) 11 NWLR (PT 778) 397 at 431 and JENYO vs. AKINRETI (1990) 2 NWLR (PT 135) 663 at 678 were called in aid.
It was conclusively argued that an appellate court will intervene and aside the general damages awarded where the award is not made based on the principles of law and where the award is manifestly unwarranted, excessive, unreasonable and unconscionable vide ACME BUILDERS LTD vs. KSWB (1999) 2 NWLR (PT 590) 288 at 305-306 and
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UNION BANK OF NIG LTD vs. ODUSOTE BOOKSTORES LTD (1995) 9 NWLR (PT 421) 558 at 556 [sic].
SUBMISSIONS OF THE 1ST- 4TH RESPONDENTS COUNSEL
The 1st- 4th Respondents submit that the lower Court awarded general damages and that the amount awarded is at the discretion of the Court and need not be based on any measure, except what would be acceptable to a reasonable man in the circumstances. The cases of TAO & SONS INDUSTRIES LTD vs. GOVERNOR OF OYO STATE (2011) 17 WRN 157 at 170, JOSEPH vs. ABUBAKAR (2001) 48 WRN 97 or (2002) 5 NWLR (PT 759) 185 at 207 and NNADI vs. OKORO (1998) 1 NWLR (PT 535) 573 at 607-608 were referred to.
The conditions upon which an appellate Court will interfere with the damages awarded by a trial Court as set out in UNION BANK OF NIG LTD vs. ODUSOTE BOOKSTORES LTD (supra) were set out and it was opined that there was no basis on which to interfere with the damages awarded by the lower Court as it was made pursuant to the main object for award of damages which is to compensate the plaintiff for the harm done to him or punish the defendant for his conduct in inflicting the harm vide TAO & SONS INDUSTRIES LTD vs. GOVERNOR OF OYO STATE
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(supra) at 169 and ELIOCHIN vs. MBADIWE (1986) 1 NWLR (PT 14) 47. The Court was urged not to interfere with the damages awarded as the 1st-4th Respondents placed the requisite materials before the Court on how the deceased had been faring well in his business and taking good care of his family.
RESOLUTION OF ISSUE NUMBER TWO
At the outset, I stated that the disceptation in this issue is now restricted to whether the sum of N1billion awarded as general damages by the lower court was excessive. The amount was awarded as compensation for the loss and hardship caused to the 1st – 4th Respondents by the untimely death of their deceased husband/father. In UBA PLC vs. BTL INDUSTRIES LTD (2006) LPELR (3404) 1 at 118-119, the apex court dealing with when an appellate Court will interfere with award of general damages held, per Tabai, JSC:
…an appellate Court ought not to interfere with such award of general damages unless:-
(a) where the trial Court had acted under a mistake of law;
(b) where he has acted in disregard of principles; or
(c) where he has taken into account irrelevant matters or failed to take into account relevant
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matters; or
(d) where he has acted under a misapprehension of facts; or
(e) where in justice would result if the appellate court does not intervene; or
(f) where the amount awarded is either ridiculously low or ridiculously high that it must have been a whole erroneous estimate of the damage.
See also OBERE vs. BOARD OF MANAGEMENT, EKU BAPTIST HOSPITAL (1978) 6-7 SC 15 and UNION BANK LTD vs. ODUSOTE BOOKSTORES LTD (supra).
The damages of loss and hardship claimed by the 1st – 4th Respondents are in the nature of non-financial or future financial losses which are in the nature of general damages. General damages need not and should not be specifically pleaded but in cases of this nature as well as in personal injury and fatal accident cases, some evidence of the damages is required. The approach in assessing the damages is by employing the multiplier and multiplicand rule. The multiplicand being the estimation of the annual value of the dependency of the 1st-4th Respondents and the multiplier being the number of years the dependency is to continue. The multiplicand usually represents the amount the deceased would have spent on the
24
1st – 4th Respondents if he were alive, and the multiplier the number of years he would have continued bearing the expenses, ceteris paribus, until they are no longer dependents. See IBOLUKWU vs. ONOHARIGHO (1964) 1 ALL NLR 215 at 217, OWOLO vs. OLISE (1967) FNLR 179, OSHOLAKE vs. LAGOS CITY COUNCIL (1972) 12 CCHCJ 56 and JULIUS BERGER NIG PLC vs. UGO (2015) LPELR (24408) 1 at 102-104 (per Oho, JCA).
The 1st – 4th Respondents submit that they placed requisite materials before the lower Court showing that the deceased was faring well and taking good care of his family. That may well be so but faring well and taking good care simpliciter is nebulous for use in arriving at the multiplicand. The amount of N1billion awarded as general damages is a hefty sum of money, which for clarity of how substantial it actually is, is one thousand million naira. For a person to earn N1billion in a productive working life of fifty years means that the person would have been earning on the average N20 million per annum. This is the picturesque description of how substantial the general damages awarded by the lower Court is. It needs to be emphasised that it was general
25
damages, not exemplary or aggravated damages. While the award of general damages is no doubt discretionary, it still has to be evident what informed the court and how it reasoned to arrive at the amount awarded. The lower court, neither stated the multiplicand nor the multiplier it used in awarding the sum of N1billion as general damages. Indeed, no informed reasoning whatsoever was given for the award of the sum of N1billion. The amount was arrived at in disregard of the legal principles and it is ridiculously high, signifying that it is an erroneous estimate of the damage. In such circumstances, an appellate Court would intervene to ensure that in justice is not occasioned: UBA PLC vs. BTL INDUSTRIES LTD (supra).
Ineluctably, this issue number two must be resolved against the 1st – 4th Respondents. The N1billion awarded is ridiculously high and manifestly excessive that it is a wholly erroneous estimate of the damages suffered by the 1st-4th Respondents. If perchance issue number one had not been resolved in favour of Appellants, I would have been constrained to reduce the general damages awarded to N50million. I arrive at this amount in view of the fact
26
that the 2nd-4th Respondents are not yet teenagers and still have at least a decade of education ahead of them. Furthermore, I took into consideration that the fons et origo of this entire matter is the alleged failure by the deceased to meet his financial obligations to the Appellants as a distributor of the 1st Appellants products. Howbeit, the application of the legal principle of damnum sine injuria is such that the Appellants are not liable for the N1billion awarded as general damages by the lower court or the N50million which I would have reduced as the compensatory general damages if there was any injuria for which the Appellants could have been mulcted in damages.
ISSUE NUMBER THREE
Whether the Learned Trial Judge was right in holding that the Appellants had no right of lien over the Property of the Deceased, given the evidence on record in this regard and the Law applicable thereto
SUBMISSIONS OF THE APPELLANTS COUNSEL
The Appellants submit that the evidence on record is that the deceased, who took a loan from the Appellants to buy a Toyota vehicle and was owing on the said vehicle, drove the vehicle into the
27
Appellants premises and the Appellants based on the debt exercised a lien on the vehicle by detaining the same. It was stated that by driving the vehicle and parking the same in the Appellants premises, the Appellants on gaining possession of the vehicle were entitled to exercise a lien over the same. The cases of AFROTEC TECH SERVICES (NIG) LTD V. MIA & SONS LTD (2000) 15 NWLR (PT 692) 730 and JAGAL PHARMA LTD vs. HUSSAINI (2013) LPELR 21871 (CA) were relied upon.
SUBMISSIONS OF THE 1ST- 4TH RESPONDENTS COUNSEL
It is the submission of the 1st- 4th Respondents that a lien is a right to retain that which is in ones possession belonging to another till certain demands of the person in possession are satisfied. It was posited that the right of lien is ordinarily predicated on lawful possession by the person exercising the right over the property in question and that the Appellants, as rightly held by the lower Court, were never in lawful possession. It was stated that the Appellants taking possession of the vehicle by force, when they did not establish that the deceased was owing instalments on the vehicle, would not
28
validate their possession where title does not belong to them. The cases of MATINDALE vs. SMITH (1841) 1 QB 389 and CHUKWUEKE vs. OKORONKWO (1999) 1 NWLR (PT 587) 410 at 418 were referred to. The 1st- 4th Respondents maintain that the Appellants did not appeal against the decision of the lower court granting the relief in respect of the seizure of the goods found in the vehicle and that the said decision or finding is consequently conceded. The cases of AKERE vs. GOVERNOR OF OYO STATE (2013) 2 WRN 1 at 41, KOYA vs. UBA LTD (1997) 1 NWLR (PT 481) 253 at 266 among other cases were cited in support.
APPELLANTS REPLY ON LAW
In the Reply Brief, the Appellants submit that ground 7 of the Amended Notice of Appeal complains about the order mandating the Appellants to return the deceased property to the 1st- 4th Respondents. It was stated that the indebtedness of the deceased to the Appellants was in excess of the amount outstanding on the vehicle loan and as such they had a lien on the vehicle and other property of the deceased in their possession.
RESOLUTION OF ISSUE NUMBER THREE
The evidence on record discloses that the Appellants gave the
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deceased a loan to purchase a vehicle to enhance the distributorship business of the products of the 1st Appellant by the deceased. The deceased bought the vehicle and was repaying the loan for its purchase by payment in instalments. The deceased used to be a credit customer of the Appellants but the relationship was later turned to cash and carry basis. On the fateful day, the deceased drove to the premises of the Appellants and bought and paid for products worth N400, 000.00 which he loaded into the vehicle. He could however not drive out from the Appellants premises as the Appellants called the Police to arrest the deceased for issuing dud cheques.
The Appellants impounded the vehicle and the products in it in exercise of a right of lien over the debt owed by the deceased.
In its judgment the lower Court held that the vehicle and property were not lawfully in the custody of the Appellants; the Appellants having invited the Police to arrest the deceased, their custody of the vehicle and property was not lawful (see page 648 of the Records). Now, a lien broadly speaking, is a right to retain that which is in ones possession belonging to another
30
until certain demands of the person in possession are satisfied. See AFROTEC TECHNICAL SERVICES (NIG) LTD vs. MIA & SONS LTD (supra) and OGUNTIMEHIN vs. UNITY BANK (2017) LPELR (43244) 1 at 36-37. A legal lien in its primary or legal sense means a right at common law in one man to retain that which is rightly and continuously in his possession belonging to another until the present and accrued claims of the person in possession are satisfied: LIVESTOCK FEEDS PLC vs. OKEZIE (2000) 10 NWLR (PT 775) 341 at 354.
It is lucent that critical in the exercise of the right of lien is that the goods are in the lawful custody and possession of the person exercising the lien. In the diacritical circumstances of this matter, were the vehicle and the goods inside it in the lawful possession of the Appellants? It has to be remembered that the deceased drove the vehicle to the Appellants premises to transact the business of buying the Appellants products, which he bought, paid for and loaded into the vehicle. He remained in possession of the vehicle and the goods inside but was unable to leave with them because the Appellants got the Police to arrest and whisk
31
away the deceased. The Appellants thereafter impounded the vehicle and goods in purported exercise of the right of lien. On these set of facts, it does not seem to me that the vehicle and goods were in the lawful possession or custody of the Appellants. It does appear to me that the action of the Appellants in impounding the vehicle and goods after they had gotten the Police to arrest the deceased was a resort to self-help. See OYAMENDA vs. ABDULRAHMAN (2013) LPELR (22744) 1 at 31. The Appellants did not have a right of lien to exercise in the circumstances and the lower Court was right in its decision that the impounding of the vehicle and goods was unlawful and correctly made an order for their return. To have held otherwise would have meant approving the Appellants conduct or act of self-help. Self-help has no place in the civilized world since it is against the rule of law. A Court of law will not lend credence to an act or conduct of self-help: OKOCHI vs. ANIMKWOI (2003) 18 NWLR (PT 851) 1. Indubitably, this issue number three is resolved in favour of the 1st – 4th Respondents. The lower court was right in holding that the Appellants had no right of lien
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over the property of the deceased.
ISSUE NUMBER FOUR
Whether on the totality of the evidence before the Lower Court the 1st – 4th Respondents were entitled to the reliefs granted them by the Learned Trial Judge.
SUBMISSIONS OF THE APPELLANTS COUNSEL
The Appellants contention in this issue are with respect to reliefs (iii), (x) and (xii) granted by the lower Court. The Appellants state that there was conflicting versions in the evidence as to whether N1million was demanded from the deceased as part payment of the debt owed to the Appellants; but that the lower Court did not evaluate the evidence in that regard before granting relief (iii) which is a declaration that the Appellants procured and instigated the Police to demand and recover from the deceased the sum of N1million as part payment of the debt he owed the Appellants. The lower Court, it was maintained, was wrong to have granted the relief without evaluating the evidence. The cases of ONISAODU vs. ELEWUJU (2006) 13 NWLR (PT 998) 517 and GUARDIAN NEWPAPERS LTD vs. AJEH (2011) 10 NWLR (PT 1256) 574 were referred to.
The Appellants submission in respect of the grant of relief (x)
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which is the order for exemplary damages is that the lower Court having held that the Appellants were not responsible for the untimely death of the deceased, they could not be liable for any damages since a party is only damnified in damages if he had caused injury to the other party. It was further stated that the Appellants not being servants of government, exemplary or aggravated damages cannot be ordered against them; more so when the acts of the Appellants were not shown to be oppressive, arbitrary or unconstitutional and their act of reporting the issue of dud cheques were not shown to be with the motive or chance of an economic advantage vide WILLIAMS vs. DAILY TIMES (1990) 1 NWLR (PT 124) 1 at 30.
It was conclusively submitted as it relates to relief (xii) that the lower Court having held that the Appellants were not responsible for the death of the deceased, they cannot be made to apologise for a crime they had been adjudged not to have committed.
SUBMISSIONS OF THE 1ST – 4TH RESPONDENTS COUNSEL
The submission with regard to relief (iii) is that the lower Court only first simply referred to the adverse position of the parties and
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that all it did in the form of evaluation of evidence was believing the version of the 1st – 4th Respondents after watching the demeanour of the witnesses. It was opined that a trial court has the duty of evaluating the evidence and ascribing probative value thereto and where the findings made are predicated on the evidence, an appellate court will not interfere unless the findings are perverse. The cases of MAIKUDI vs. MUSA (2004) ALL FWLR (PT 230) 1109, HASHIDU vs. GOJE (2003) 15 NWLR (PT 843) 352, SAPO vs. SUNMONU (2010) 27 WRN 28 at 54-55, UGOCHUKWU vs. UNIPETROL (2002) 7 NWLR (PT 765) 1 among other cases were relied upon.
With respect to relief (x), the 1st – 4th Respondents submit that after evaluation of the evidence, the lower Court condemned the conduct of all the defendants before it and found exemplary damages proved. It was asserted that it is not only against government agencies that exemplary or aggravated damages are awarded, but that it could also be awarded against individuals whose conduct has been adjudged tortious and capricious vide WILLIAMS vs. DAILY TIMES (supra) at 30-31 and TAO & SONS INDUSTRIES LTD vs. GOVERNOR OF OYO STATE
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(supra) at 169.
It was conclusively submitted as it relates to relief (xii) that though the lower Court decided that the act of the Appellants reporting the deceased to the Police did not amount to a wrongdoing, it still found further grounds on which it found the Appellants liable.
APPELLANTS REPLY ON LAW
In the Reply Brief the Appellants maintain that the lower never made any finding preferring the version of the 1st – 4th Respondents on the Appellants having instigated that N1million be collected from the deceased as part payment of the debt. It was stated that the lower Court having held that the Appellants involvement was only making a report to the Police could not have made any such finding.
RESOLUTION OF ISSUE NUMBER FOUR
The conspectus of the contention under this issue is that based on the available evidence as accepted by the lower court and on which it made findings absolving the Appellants from liability in the death of the deceased, that the lower Court was in error when it granted reliefs (iii), (x) and (xii) against the Appellants as they could not have been granted based on the said findings. It is
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rudimentary law that the primary duty of the court of trial is to evaluate and ascribe probative value to the evidence adduced. Evaluation of evidence is basically the assessment of the facts by the trial court to ascertain which of the parties to a case before it has more preponderant evidence to establish the case propagated. See ONWUKA vs. EDIALA (1989) 1 NWLR (PT 96) 182 at 208-209, OYADIJI vs. OLANIYI (2005) 5 NWLR (PT 919) 561 and AMEYO vs. OYEWOLE (2008) LPELR (3768) 1 at 9. The evaluation involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. A Court of trial has the duty to consider the evidence adduced in respect of any facts on which issues were joined, decide which evidence to prefer on the basis of how the evidence preponderates and then make logical and consequential findings of facts: ADEYEYE vs. AJIBOYE (1987) 1 NWLR (PT 61) 432 at 451 and STEPHEN vs. THE STATE (1986) 5 NWLR (PT 46) 978 at 1005.
The relief number (iii) granted by the lower Court is for a declaration that the Appellants procured and instigated the Police to demand the sum
37
of N1million from the deceased as part-payment of the debt he owed the Appellants contrary to the provisions of the Constitution and Section 4 of the Police Act. In paragraph 4. 4. 09 of the 1st – 4th Respondents Brief, it is conceded that all the lower Court did was to simply refer to the adverse position of the parties before reaching the decision to grant the said relief. They however surmise in paragraph 4. 4. 11 that what the lower Court did in evaluation of evidence was to believe the version of the 1st – 4th Respondents after watching the demeanour of the witnesses. The product of evaluation of evidence by a court and the consequential findings of facts made by a court is not a matter for speculation, conjecture or surmise. The law is that there must be on record how the trial court arrived at its conclusion of preferring one piece of evidence to the other. See AKINTOLA vs. ADEGBITE (2007) ALL FWLR (PT 372) 1891 at 1898 and FEDERAL HOUSING AUTHORITY vs. OLAYEMI (2017) LPELR (43376) 1 at 75.
With due deference to learned counsel, the pith of the inquiry is not whether the Appellants, not being servants of government, can have exemplary or aggravated
38
damages ordered against them. In any event, the amount awarded by the lower court was for general damages and not exemplary or aggravated damages. The crux of the matter is whether there was any injuria found against the Appellants for which they could be mulcted by damnum. Be that as it may, the case of WILLIAMS VS. DAILY TIMES (1990) LPELR (3487) 1 did not decide that exemplary and aggravated damages can only be ordered against servants of government. At pages 45-47 of the LPELR report of the judgment, Eso, JSC stated:
“There has always been a difference between exemplary and aggravated damages. Exemplary damages are usually awarded where statutes prescribe them and apart from this, they are only awarded for two categories to wit (1) oppressive, arbitrary or unconstitutional action by servants of the government. See Lord Devlin in Rookes v. Barnard (1964) A.C. 1230. Matters for compensation are different from matters for punishment. In Mc Caney v. Associated Newspapers (1965) 2 Q.B. 104, Pearson, L. J. held compensatory damages. . . may include not only actual pecuniary loss and anticipated loss or any social disadvantages which result or may be
39
thought likely to result from the wrong which has been done. This is not punishment. Punishment is best illustrated in the dictum of Lord Hailsham in Broome v. Cassell (1972) A.C. 1070, where Lord Hailsham regarded the principle of exemplary damages as teaching the defendant that tort does not pay. Lord Devlin has formulated in Rookes v. Barnardthat exemplary damages includes cases where the defendant with a cynical disregard for plaintiff’s rights has calculated that the money to be made out of his wrong doing will probably exceed the damages at risk. All these, that is, in regard to exemplary damages include some deliberations that warrant punishment. (2) Where the defendant’s act which has been held to be tortious was done with a guilty knowledge, the motive being that the chances of economic advantage outweigh the chances of economic or even (perhaps) physical penalty. (Another act of deliberateness). Aggravated damages which the Judge awarded and which Ademola, J.C.A., did not advert to, might result out of malevolence on the part of the tortfeasor, spite by him or just the manner of committing the wrong which injures plaintiff’s proper feeling of
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dignity and pride.”
It therefore follows that even though the Appellants are not servants of government, exemplary damages can still be ordered against them where their action is deliberately tortious but was done in the belief that they had more to gain than they had to lose by any penalty ordered against them. In the same vein, aggravated damages can be ordered against them where they acted out of spite, malevolence or by aggravating conduct which injures the feeling of dignity and pride of the plaintiff. But for any of these to happen, there has to be an injuria attributable to the Appellants.
It is limpid from the Records that the lower Court did not make any finding preferring the version of the 1st – 4th Respondents that the Appellants procured and instigated the Police to demand the sum of N1million from the deceased as part-payment of the debt owed to the Appellants. It could not have been, in view of the findings of the lower Court considered under issue number one herein and the conclusion that the involvement of the Appellants had to do only with making a report to the Police and that whatever transpired between the Police and the
41
deceased subsequently was not within the boundaries and knowledge of the Appellants. Where it is that whatever happened between the Police and the deceased was not within the knowledge of the Appellants, how then could the Appellants have procured and instigated the demand for N1million from the deceased? It is instructive that at page 648 of the Records, in holding that the involvement of the Appellants had only to do with making a report to the Police, the lower Court underlined the word only to underscore the fact that the extent of the involvement of the Appellants was making the report and no more.
In RAPU vs. IKUEGBOWO (2018) LPELR (45253) 1 at 28-30, I was privileged to state the legal position as follows:
It seems to be settled law that where all a person does is to lay a complaint to the law enforcement agencies, it is for them to decide what action they should take on the report or complaint. See GBAJOR vs. OGUNBUREGUI (1961) 1 ALL NLR 853 and FCMB vs. ETTE (2008) 22 WRN 1. By all odds, any person who feels that an offence has been committed has a right to report to a law enforcement agency, which upon the receipt of such a report
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has the statutory power to investigate, arrest, interrogate, search and detain any suspect: ONAH vs. OKENWA (2010) 7 NWLR (PT 1194) 512 at 536 and Section 4 of the Police Act. For the Appellant to be held to have violated the Respondents fundamental rights, it has to be shown that he did more than lodge a formal report with the Police. It is rudimentary law that if a person orders a Policeman to arrest another person, it is an imprisonment by the person ordering the arrest as well as by the Policeman. They are joint tortfeasors and their conduct can ground an action in unlawful arrest and detention. However, merely making a report to a Policeman who on his own responsibility takes the person into custody is no arrest or detention by the person who made the report. There is no doubt that someone who merely gives information without more, which information leads to the arrest of a suspect by the Police acting within their mandate and responsibility, cannot be liable in an action for unlawful arrest or detention. See AFRIBANK vs. ONYIMA (2004) 2 NWLR (PT 858) 654. In order for a person to successfully maintain an action for violation of his fundamental rights,
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consequent upon an arrest and detention, it is not enough to merely establish that a report was made to the Police wherein he was named as the suspect. It needs to be established for example, that the Police did not act on their own volition when they decided to arrest the person or that the report was totally false, malicious and without foundation. See NWADINOBI vs. BOTU (2000) 15 WRN 32 at 40.
In IGBOSONU vs. OHAYAGHA (2015) LPELR (41870) 1 at 54-55, this court (per Mbaba, JCA) stated:
By law, a person cannot be held liable for breach of fundamental rights simply because he made a complaint of commission of offence against another to the Police, and the Police used their discretion to arrest that other person for questioning. He can only be faulted if the complaint was ill-motivated and founded on dishonesty. See the case of Ejikeme Vs Nwosu (2002) 3 NWLR (pt.754) 356; Balogun Vs Amubikahun (1989) 3 NWLR (Pt.107) 18; Ejefor vs Okeke (2000) 7 NWLR (Pt. 665) 363; Agbakoba vs Director of SSS(1993) 7 NWLR (PT. 305) 353. In the case of Ogbonna vs Ogbonna (2014) 23 WRN 48, at 88, it was held that for liability to lie against a complaint to the
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Police, leading to the arrest, detention and prosecution of defendant, the complaint must have been made in bad faith, and the complainant did more than mere reporting the matter to the Police, and spearheaded the arrest, detention and prosecution of the victim of his false report, even where there was no basis for it.”
If there was conduct on the part of the Appellants beyond only making a report as rightly held by the lower Court, then there would have been a justifiable basis for the grant of relief (iii), but based on the extent of the involvement of the Appellants as held by the lower Court, the award of relief (iii) cannot be allowed to stand.
The same is equally true with the grant of relief (x) and (xii) by the lower Court. At page 648 of Volume II of the Records, the lower court found and held as follows:
It is therefore rightly submitted that the 5th Defendants act of performing its civil obligations of reporting a criminal act to the police cannot under any stretch of imagination form the basis of an action for the reliefs by the Plaintiffs. See also the case of REV. PAUL ENANUGA & ORS. V. HON. NSEABASI (CORNELIUS) SAMPSON (SUPRA)
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The involvement of the 5th & 6th Defendants herein had to do only with making a report to the police of Mr. Ademola Lawrence Adedejis act (which had become regular) of issuing dud cheques, whatever transpired between the police and the deceased subsequently was never within the boundaries and knowledge of the 5th 6th Defendants; the report made to the police was without malice and devoid of any inference [sic] with the polices investigation of its report. The judicial authorities are in concurrence that under no stretch of imagination would the 5th & 6th Defendants be held liable on such basis.
This court is therefore hold that the performance of its civil obligation by the 5th & 6th Defendants of reporting the crime of issuance of dud cheques cannot amount to a wrong doing in law.
Now, in the above pericope, the lower Court held that the Appellants did no more than make a report to the Police and that the same cannot form the basis for an action for the relief claimed by the 1st – 4th Respondents. Furthermore, that the Appellants cannot be held liable as their action cannot amount to
46
a wrongdoing in law. In the light of the foregoing, I am unable to fathom how the lower court then found the Appellants liable and granted reliefs against them for an order of exemplary damages to deter them from future violation (relief x) and publication of apology (relief xii). I iterate that the lower court found and held that what the Appellants did (making a report to the Police) cannot amount to a wrongdoing in law. How then could the lower court have awarded the reliefs against them when they had committed no wrong and were not liable as found and held by the lower court. Once again, the legal principle is damnum sine injuria, where there is no breach or wrong there can be no damages.
In the circumstances, I cannot but resolve this issue number four in favour of the Appellants. The 1st – 4th Respondents from the evidence on record were not entitled to the grant of reliefs (iii), (x) and (xii).
We segue to the cross appeal.
THE CROSS APPEAL
The 1st – 4th Respondents/Cross Appellants crafted a sole issue for determination in the cross appeal, namely:
Whether the lower Court was correct in its decision that the act of
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reporting the deceased breadwinner of the Cross Appellants by the 1st and 2nd Respondents to the 3rd – 6th Respondents/police officer, amounted to no wrong doing under the law, as to justify the refusal of the said lower Court not holding the 1st & 2nd Respondents liable to the suit of the Cross Appellants on this ground as well as other grounds upon which the court found 1st & 2nd Respondents liable alongside the 3rd – 6th Respondents.
The Appellants/Cross Respondents equally nominated a sole issue for determination, as follows:
Whether the lower Court was right in coming to the decision that the performance of the Respondents civic obligation in reporting the crime of the issuance of dud cheque to the Police amounted to no wrong doing in law.
The issue as formulated by the Appellants/Cross Respondents is succinct, concise and apt and it is the basis on which I would consider the submissions of learned counsel and resolve the cross appeal.
ISSUE FOR DETERMINATION
Whether the lower Court was right in coming to the decision that the performance of the Respondents civic obligation in reporting
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the crime of the issuance of dud cheque to the Police amounted to no wrong doing in law.
SUBMISSIONS OF THE CROSS APPELLANTS COUNSEL
The quiddity of the 1st – 4th Respondents/Cross Appellants submission is that the Appellants/Cross Respondents had no basis for reporting to the Police that the deceased issued them dud cheques because the cheques were not meant to be presented for payment, but were issued as security for credit sales of products to the deceased. Furthermore, that there was no indication that the cheques were returned because there were no funds to cover the cheques as all that was remarked on the cheques was that the attention of the deceased was required by the bank before the cheques could be paid.
It was contended that evidence was adduced establishing this but that the lower court rather than resolving the question of whether there was basis for making the report to the Police held that the same was academic since the claim before the court was anchored on the death of the deceased and not the commission of crime. It was posited that the lower Court was in error not to have resolved the issue because if it had so done,
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it would not have held that the making of the report did not amount to a wrongdoing in law. The 1st – 4th Respondents/Cross Appellants maintained their submissions that the cheques were not meant to be presented for payment and that there was nothing to show that the deceased did not have sufficient funds at the time he issued the cheques as the endorsement on the cheques was DAR. Section 1 of the Dishonoured Cheques (Offences) Act was referred to.
It was conclusively submitted that the Appellants/Cross Respondents wrongly and perhaps mischievously reported the deceased to the Police and that the lower Court was wrong when it held that their act of reporting the deceased to the Police did not amount to a wrongdoing in law.
SUBMISSIONS OF THE APPELLANTS/CROSS RESPONDENTS COUNSEL
It was submitted that there is nothing in the evidence to prove the assertion that the understanding was that the cheques were issued in form of securities and were not meant to be presented for payment. It was opined that the endorsement on the cheques when they were returned unpaid had the connotation that there was no fund or insufficient fund to
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accommodate the dishonoured cheques vide STANDARD TRUST BANK LTD vs. ANUMNU (2008) 14 NWLR (PT 1106) 125 at 157.
It was argued that the burden was not on them, but that it was on the 1st – 4th Respondents/Cross Appellants to prove that the deceased had sufficient funds to accommodate the proceeds of the cheques. It was maintained that the Appellants/Cross Respondents had a duty upon suspicion of commission of a crime; not proof of commission of a crime, to report to the Police for investigation. The cases of GBAJOR vs. OGUNBUREGUI (1961) 1 ALL NLR (PT I) 882 at 885, OTERI vs. OKORODUDU (1970) ALL NLR (Reprint) 199, TOTOR vs. AWEH (2000) 2 NWLR (PT 644) 309, ENANUGA vs. SAMPSON (2012) LPELR – 8487, FAJEMIROKUN VS. C. B. NIG LTD (2009) 5 NWLR (PT 1135) 588 among others and Section 4 of the Police Act were called in aid.
RESOLUTION OF THE CROSS APPEAL
This matter is not the trial of the deceased for the offence of issuance of a dud cheque. To that extent, it isnot necessary to determine if on the evid ence it was established that the deceased did not have sufficient funds in his account to cover the value of the cheques or the connotation of what
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the endorsement DAR on the cheques meant.
It is settled law that it is the civic obligation of citizens to report the suspected commission of an offence to law enforcement agencies who have the duty of investigating such a report to ascertain if an offence had indeed been committed and take the necessary action: GBAJOR vs. OGUNBUREGUI (supra) and FAJEMIROKUN vs. C. B. NIG LTD (supra). The emphasis is that it is suspicion of commission of crime. It is not disputed that the cheques issued to the Appellants/Cross Respondents by the deceased were returned unpaid when they were lodged. This undoubtedly raised a red flag or suspicion as to whether there were funds to cover the value of the said cheques. At that stage it was not necessary for the Appellants/Cross Respondents to know definitively if there were insufficient funds. It sufficed if they reasonably believed that the cheques were not honoured because of insufficiency of funds.
What however is more material is whether it was proved that there was an understanding between the parties that the cheques were not to be presented for payment in the first place. The 1st – 4th Respondents/Cross Appellants
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made copious averments in their pleadings to the effect that the cheques were issued as security for credit sales to the deceased and were not to be presented for payment. (See paragraphs 19 and 20 of the Statement of Claim at page 251 of Volume I of the Records). There is however no iota, whit or scintilla of evidence in proof of the averments in paragraphs 19 -20 of the Statement of Claim. This is understandably so, because the deceased who it is pleaded had an understanding with the Appellants/Cross Respondents that the cheques were not to be presented was no longer alive to give the direct evidence. Coming from any other witness it would have been hearsay and inadmissible: BUHARI vs. OBASANJO (2005) 7 SC 1, OKEREKE vs. UMAHI (2016) LPELR (40035) 1 at 55 and OJO vs. GHARORO (2006) LPELR (2383) 1 at 16-17.
In the absence of evidence in proof that the Appellants/Cross Respondents were not supposed to present the cheques to the bank for payment, they were absolutely within their rights when upon the return of the cheques unpaid, they reasonably suspected that a crime had been committed and accordingly lodged a report to the Police. As rightly held by the
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lower Court the mere lodging of the report did not amount to a wrongdoing in law. Furthermore, since the action was not the trial for the offence of issuance of dud cheques, the lower court was correct when it did not embark upon any inquiry as to whether the deceased had sufficient funds to cover the value of the cheques. Inexorably, the sole issue for determination in the cross appeal is resolved against the 1st – 4th Respondents/Cross Appellants.
CONCLUSION
It seems that the field of this judgment has been effectively covered. Every blade of grass in the main appeal and cross appeal has been tendered and groomed. It only remains to state, in a coda, that to the extent that three of the four issues in the main appeal have been resolved in favour of the Appellants, the main appeal succeeds in part. The judgment of the lower Court as it relates to reliefs (iii), (x), (xi) and (xii) granted against the Appellants is hereby set aside. The judgment of the lower Court as it relates to the grant of reliefs (v) and (ix) against the Appellants is hereby affirmed. The cross appeal being totally devoid of merit is hereby dismissed. The parties are to bear
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their respective costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the succinct judgment prepared by my learned brother. Ugochukwu Anthony Ogakwu, J.C.A.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I had the privilege to read in its draft form, the lead judgment of my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA wherein he upheld in part, the main appeal by the Appellants and dismissed the Cross Appeal filed by the 1st to 4th Respondents/Cross Appellants as the cross appeal was adjudged as deficient.
I abide with the consequential order made that both parties shall bear their respective costs.
Appeal is upheld in part and the cross appeal is dismissed by me too.
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Appearances:
Bambo Adesanya, SAN with him, Mrs. A. R. Adesanya, Miss. O. A. Adeniyi & Miss B.O. AkinwandeFor Appellant(s)
A. C. Eko, Esq. with him, M. Okoedion, Esq., A. Adeniyi, Esq. & S. E. Oladimeji, Esq. for the 1st-4th Respondents/Cross Appellants.
5th-8th Respondents/Cross Respondents absent and not represented by CounselFor Respondent(s)
>
Appearances
Bambo Adesanya, SAN with him, Mrs. A. R. Adesanya, Miss. O. A. Adeniyi & Miss B.O. AkinwandeFor Appellant
AND
A. C. Eko, Esq. with him, M. Okoedion, Esq., A. Adeniyi, Esq. & S. E. Oladimeji, Esq. for the 1st-4th Respondents/Cross Appellants.
5th-8th Respondents/Cross Respondents absent and not represented by CounselFor Respondent
