UNITED BANK FOR AFRICA PLC & ANOR v. MR. IZUKA JOHNSON
(2018)LCN/11936(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of July, 2018
CA/OW/175/2014
RATIO
COURT AND PROCEDURE: A CAUSE OF ACTION
“The position of the law in respect of a Court process taken out for the ventilation of a cause of action as it relates to parties and non-joinder of parties, in my considered view is settled. It is that an action is competent once there is a plaintiff (or an initiator of the action) that has the capacity to sue; a defendant against whom the action is initiated that has the capacity to defend same; and that the non-joinder of a party in a competent action cannot vitiate such an action.” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
DAMAGES: AWARD OF DAMAGES
“The law is settled as to when an appellate Court can interfere with an award of damages made by a trial Court having regard to the cases. In this regard, see the case of SPDC LTD V. TIEBO (2005) LPELR 3203 (SC) wherein the Supreme Court per Oguntade, JSC; said thus: – ‘With respect to the award of five million naira as general damages, a different consideration applies. This was an award made by the trial Judge sitting as a jury and judge of the facts. The only circumstance justifying an interference with the award of general damages made by a Court of trial by an appellate Court is when the award is manifestly too high or manifestly too little so as to raise inference that it was an erroneous assessment of the damage suffered or where the trial Judge had made the award relying on a wrong principle.'” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
1. UNITED BANK FOR AFRICA PLC
2. MRS. NWABUGHOGU – Appellant(s)
AND
MR. IZUKA JOHNSON – Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment):
The appeal is against the judgment delivered on 4/11/2013 by the High Court of Abia State, Osisioma Judicial Division presided over by Hon. Justice N.C. Otti (hereafter to be simply referred to as ‘the lower Court’ and ‘learned trial Judge respectively’). The action in which the lower Court delivered its judgment on 4/11/2013 was initiated by the Respondent by way of originating summons pursuant to the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009, (hereafter to be simply referred to as the ‘FREP, Rules’), for the enforcement of the Respondent’s fundamental rights as guaranteed by Sections 34, 35 and 41 of the Constitution of the Federal Republic of Nigeria, 1999, (hereafter to be simply referred to as ‘the Constitution’) and Articles 5, 6 and 12 of the African Charter on Human and Peoples’ Right (hereafter to be simply referred to as ‘African Charter’).
The STATEMENT PURSUANT TO ORDER II RULE 3 OF THE FREP, RULES filed in the suit reads thus: –
ADDRESS AND DESCRIPTION OF THE APPLICANT
1.NAME AND DESCRIPTION OF THE APPLICANT
The name of the applicant is Mr. Izuka Johnson, a Nigeria citizen, Civil Servant and a bailiff of the Court attached to Osisioma Division of the High Court of Abia State. His address is the High Court of Abia State, Osisioma Division.
2. RELIEF SOUGHT
a. A DECLARATION of the honourable Court that the arrest and detention of the Applicant in the course of his official duty as a bailiff of the Court by the Respondents at the respondents’ business premises located at Umuimo Road branch of United Bank for Africa’s business at Aba, Abia State on the 2nd day of April 2012 with the aid of Bank staffers, security men and Police men (sic) attached to the Bank constitutes a violation of the Applicant’s Fundamental Rights to personal liberty as provided under Sections (sic) 35 of the 1999 Constitution of the Federal Republic of Nigeria and Articles 5, 6, (sic) of the African Charter on Human and Peoples’ right.
b. A DECLARATION of the honourable Court that the arrest and detention of the Applicant in the course of his official duty as a bailiff of the Court by the Respondents, against the applicant’s consent and will at the respondents’ business premises under very scorching sun, in a very dehumanizing circumstances on the 2nd day of April 2012, with the aid of Bank staffers, security men and Police men (sic) attached to the Bank, constitutes a violation of the Applicant’s Fundamental Rights to respect for the dignity of the Applicant’s person as provided under Section 34 (sic) the Constitution of the Federal Republic of Nigeria 1999 and Articles 5 and 6 of the African Charter on Human and Peoples’ right.
c. An Order of perpetual injunction restraining the respondents by themselves, servants, agents and privies from further violation of the applicant’s fundamental right.
d. N50,000,000.00 (Fifty Million Naira) being exemplary and aggravated damages as compensation for the applicant against the Respondents jointly and severally for the unlawful violation of the Applicant’s fundamental rights.
3. GROUNDS UPON WHICH THE RELIEFS ARE SOUGHT.
The grounds upon which the reliefs are sought are as follows:
i. The Constitution of the Federal Republic of Nigeria 1999 as well as the African Charter on Human and Peoples’ Right prohibit the arrest and detention of citizens except in a manner prescribed by law, yet the respondents arrested and detained the applicant in the course of the applicant?s lawful execution of a lawful official duty on 2nd day of April, 2012 in a manner that violates the provisions of Section 35 and 41 of the Constitution of the Federal Republic of Nigeria 1999 and Articles 6 and 12 of the African Charter on Human and Peoples’ right.
ii. The Constitution of the Federal Republic of Nigeria 1999 and African Charter on Human and Peoples’ Right prohibit the unlawful detention of citizens or the treatment of citizens in a degrading and inhuman manner on the 2nd April, 2012 when in the course of his official duty as a bailiff of the Court and against his consent and will, the respondents detained the applicant under very scorching sun, in a very dehumanizing circumstances (sic) that constitute a violation of the Applicant?s Fundamental Rights to respect for dignity of his persons as provided under Section 34 (sic) Constitution of the Federal Republic of Nigeria 1999 and Articles 5 and 6 of the African Charter on Human and Peoples’ right.
The lower Court in its judgment found against the Appellants (then Respondents) and in favour of the Applicant (now Respondent) as it entered judgment in the manner set out hereunder: –
”…As the Respondents, acted in a manner that has resulted in the infringement of the Applicant’s rights as guaranteed under SS. 34(1) (a) and 35(1) of the 1999 Constitution I hereby declare that ”
(1) The arrest and detention of the Applicant in the course of his official duty as a bailiff of the Court by the Respondents at the respondents’ business premises located at Umuimo Road branch of United Bank For Africa’s business premises at Aba, Abia State on the 2nd day of April 2012 with the aid of Bank staffers, security men and Police men (sic) attached to the Bank constitutes a violation of the Applicant’s Fundamental Rights to personal liberty as provided under Sections 35 of the 1999 Constitution of the Federal Republic of Nigeria and Articles 5 and 6 of the African Charter on Human and Peoples’ right.
(2) A Declaration of the honourable Court that the arrest and detention of the Applicant in the course of his official duty as a bailiff of the Court by the respondents, against the applicant’s consent and will at the respondents’ business premises under very scorching sun, in a very dehumanizing circumstances on the 2nd day of April 2012, with the aid of Bank staffers, security men and Police men (sic) attached to the Bank, constitutes a violation of the Applicant’s Fundamental Rights to respect for the dignity of the applicant’s person as provided under Sections (sic) 34 (sic) the Constitution of the Federal Republic of Nigeria 1999 and Articles 5 and 6 of the African Charteron Human and Peoples’ right.
(3) The Respondents by themselves, servants, servants, agents and privies are hereby restrained from further violation of the Applicant’s Fundamental rights.
(4) That the Respondents are to the Applicant as compensation to the tune of N500,000.00 for the breach of Applicant’s rights to his liberty and dignity of his person.
The lower Court awarded costs of N50,000.00 to the Respondent and against the Appellants as costs follow the event.
Being aggrieved with the judgment of the lower Court, the Appellants initiated the instant appeal against the whole of the same (including the costs awarded against them) by filing at the registry of the said Court on 6/11/2013 a notice of appeal bearing the same date. The process contains five grounds of appeal and the said grounds with their respective particulars read thus: –
GROUND ONE
ERROR IN LAW
The learned trial Judge erred in law when he became a Judge in his own cause explained in the Latin maxim Nemo Judex Incausa sua in that the Respondent whose matter the learned trial Judge adjudicated is the bailiff of his Court, the Order His Court Bailiff went to serve on the 1st Appellant was an order made by him and the Court the Respondent instituted action to claim Reliefs for his alleged wrong is the same Court of the learned trial Judge that made the Order.
PARTICULARS OF ERROR
It is the law, that is, Administrative law that no person will be a Judge in his own cause, in this appeal, the learned trial Judge adjudicated on a matter that stemmed from an order he made, and the Respondent who was the Applicant at the Lower Court is his Court Bailiff, and the cause of action emanated from the service of the learned trial Judge’s Order and the Judge that adjudicated on the matter is the Court that made the Order and the Respondent thst (sic) is the Applicant at the Lower Court is his Court Bailiff and the alleged wrong emanated from the service of the learned trial Judge’s Order and despite these obvious facts that would have made the learned trial Judge to decline from entertaining and determining the matter, he went on and adjudicated on it thereby being a Judge in his own cause.
GROUND TWO
ERROR IN LAW
Likelihood of Bias in the matter on the part of the learned trial Judge against the Appellants in that he had fore knowledge of the facts of the case because the Order of Court in issue was made by him, and the Court Bailiff went to the first Appellant to serve the learned trial Judge’s Court Order in obedience of the Order (sic) the learned trial Judge.
PARTICULARS OF ERROR
It is the law that once there is Likelihood of bias in a matter, a Judge should decline from adjudicating on the matter and likelihood of bias occurs where a party is related to the Judge, or the matter concerns the Judge or where a Judge has foreknowledge of the matter. In this Appeal, the learned trial Judge has foreknowledge of the order in that he made the order, the matter also relates to him in that it stemmed from the Order he made and the Respondent who was the Applicant is related to him and as his Court Bailiff and the visit of the Respondent to the Aba/Owerri Road, Abia State office of the 1st Appellant was to effect service of the Order of the learned trial Judge all these obvious facts show clear likelihood of bias against the Appellants.
GROUND THREE
ERROR IN LAW
The learned trial Judge erred in law when he held that non-inclusion of Police in a fundamental enforcement matter where an Applicant, the Respondent alleged that he was arrested and detained by Police did not render the Application incompetent.
PARTICULARS OF ERROR
In this Appeal, the Respondent in his application at the Lower Court, deposed to the fact that he was arrested and detained by 2 (two) policemen and some staff of the appellants but in his application at the Lower Court, he excluded the Police, while in law, it is mandatory that in Fundamental Right Enforcement Application, where allegation of arrest and detention by Police is made, it is mandatory that police will be included as a party.
GROUND FOUR
ERROR IN LAW
The learned trial Judge erred in law when he heard and determined this matter, which is very disputable and contentious by way of originating summons, instead of ordering full hearing in the matter.
PARTICULARS OF ERROR
It is the law that originating summons are used mainly where the matter is not contentious or arguable or for interpretation of statutes, but in the present matter it is obvious that the matter is very contentious in that the Respondent alleged that the 2nd Appellant arrested and detained him, which facts the 2nd Appellant denied and these issues would have been better resolved by ordering hearing in the matter so that the parties will be heard and cross examined but despite these obvious facts the learned trial Judge went on and determined the matter based on originating summons.
GROUND FIVE
ERROR IN LAW
The Learned trial Judge erred in law when he sacrificed the protection of the integrity of the Court at the alter (sic) of compensating a Court Bailiff.
PARTICULARS OF ERROR
It is the law that protection of the integrity of the Court is paramount to any other thing but in this matter, the Respondent a Bailiff of the Lower Court alleged that he was arrested and detained by the Appellants when he went to serve Court Order of the learned trial Judge on them, assuming without conceding this is true, the proper thing for the learned trial Court to do is to inquire into the facts of the matter and if found true protect the integrity of the Court by trying and ensuring that the parties if found guilty purge themselves for contempt instead of compensating the Respondent by way of damages while the duty he want (sic) to perform is an official duty, thereby sacrificing the integrity of the Curt (sic) at the alter (sic) of compensation to a Court Bailiff.
The reliefs which the Appellants seek as contained in the notice of appeal reads: –
”to set aside the judgment of Honourable Justice N.C. Otti sitting at High Court 1, Osisioma in Osisioma Judicial Division of Abia State, delivered on Monday, the 4th day of November, 2013 and uphold the Appeal of the Appellants in its entirety.”
The Respondent equally being dissatisfied with part of the judgment delivered by the lower Court only, appealed against the part he was dissatisfied with (to wit: ”that part of the judgment which held that the Cross-respondents are to pay to the Cross-appellant a compensation to the tune of N500,000.00 for the breach of Cross-appellant’s (sic) fundamental right to liberty and dignity of the person of the Cross-appellant”), by lodging at the registry of the said Court on 29/1/2014 a notice of cross appeal dated 28/1/2014. Suffice it to say at this stage, that the process contains three grounds of appeal and copious particulars, all of which I will set down or re-produce when considering the cross-appeal.
The ”main appeal” (like the cross appeal) was entertained on 18/4/2018 and learned counsel, D.O. Uruakpa in urging the Court to allow the appeal, adopted and relied on Appellants’ brief of argument dated 30/3/2017 and filed on 31/3/2017 and Appellants’ reply brief of argument dated 21/6/2017 and filed on 22/6/2017 but deemed as having been properly filed and served on the same date.
In the same vein, learned leading counsel, Aloy-Nzofutachi, in urging the Court to dismiss the appeal adopted and replied on Respondent’s brief of argument dated 6/4/2017 and filed on the same date.
Five issues were formulated for the determination of the appeal in the Appellants’ brief of argument and they read thus: –
ISSUE ONE
Whether the learned trial Judge did not err in law when he became a Judge in his own cause and tried the case of the Respondent, his Court bailiff in a matter that stemmed from the service of an Order made by him on the 1st Appellant by the Respondent and the trial Judge may have given approval for the action in line with paragraph 10 of the Respondent’s Further Affidavit on page 48 of the Record of appeal?
ISSUE TWO
Whether there is no likelihood of bias on part of the trial Judge at the Lower Court against the Appellants in that the trial Judge had fore-knowledge of the facts of the case in that the Court Order that the Respondent went to serve on the 1st Appellant was a Court Order made by the learned trial Judge and the Respondent is his Court bailiff who he knows very well and the trial Judge may have given approval for the action in line with paragraph 10 of the Respondent’s Further Affidavit of the Respondent on page 48 of the Record of Appeal?
ISSUE THREE
Whether the learned trial Judge did not err in law when he held that non-inclusion of Police in a fundamental right enforcement matter in which the Respondent alleged that he was arrested and detained by some police men in his Statement and Affidavit did not make the Respondent’s application incompetent?
ISSUE FOUR
Whether the learned trial Judge did not err in law when he determined the matter, which is very disputable and contentious by way of originating summons instead of ordering full hearing in the matter where evidence will be taken and parties cross-examined to determine the truth of the matter?
ISSUE FIVE
Whether the learned trial Judge did not err in law when he sacrificed the protection of integrity and dignity of the Court at the alter (sic) of compensating his Court Bailiff
(Bold and underline provided by me)
The Respondent adopted the above re-produced issues as being apt for the determination of the appeal. In the circumstance, the appeal necessarily will be determined on the issue formulated for this purpose by the Appellants as the Court do not consider it desirable to formulate issues of its own. However, I do not intend to consider the issues seriatim as has been done by the Appellants. I will consider and resolve Appellants’ issues 3, 4 and 5, first as they would appear to raise the issue of jurisdiction (albeit circuitously or obliquely) having regard to the manner in which issues 3 and 4 have been couched.
These two issues in my considered view would respectively appear to challenge the competence of the Respondent’s suit for non-joinder of necessary parties and its commencement by improper procedure; while issue 5 would appear to raise the issue of the propriety of the lower Court in entertaining a suit which the Respondent has no locus to have brought in the first place. This is more so as I am of the considered view that it is only in a matter that has been competently instituted or commenced that the violation of the Appellants’ fundamental rights to fair hearing in the con of the principles of natural justice as raised in their issues 1 and 2 would merit further consideration.
APPELLANTS’ ISSUE 3 – WHETHER THE LEARNED TRIAL JUDGE DID NOT ERR IN LAW WHEN HE HELD THAT NON-INCLUSION OF POLICE IN A FUNDAMENTAL RIGHT ENFORCEMENT MATTER IN WHICH THE RESPONDENT ALLEGED THAT HE WAS ARRESTED AND DETAINED BY SOME POLICE MEN IN HIS STATEMENT AND AFFIDAVIT DID NOT MAKE THE RESPONDENT’S APPLICATION INCOMPETENT?
The submissions of the Appellants on the above issue, in my considered view are simply in elaboration or intensification of the particulars of ground three of the grounds of appeal from which the said issue was distilled and which particulars have been re-produced hereinbefore. I therefore see no useful purpose it will serve to embark on any extensive review of the submissions of the Appellants on the issue save to say that they cited the case of Fajemirokun v. Commercial Bank Nig. Ltd (2009) 2 SCNJ 77 at 82,in support of their stance that the non-inclusion of Police as a party in the instant matter defeats the same.
Indeed, it is also the stance of the Appellants that the Respondent ought and should have included as parties all the persons he alleged that arrested and detained him in paragraph 9 of his affidavit of facts on page 6 of the record, (i.e. the members of staff, the security men and the two Police officers); but instead of including them as parties, the Respondent in his quest for gold digging included the 1st Appellant, a legal nonentity that has no hands to have arrested and detained him. Assuming without so conceding that the 2nd Appellant did what the Respondent alleged, the Appellants also submitted to the effect that the 2nd Appellant was on a frolic of her own, in that the 1st Appellant employed her for purely banking matters and not ‘arrest and detention at all’.
That the case would have been different if it was an issue of fraud or non-payment of money where a customer has money in his or her account in which case the 1st Appellant will be vicariously liable. That in the instant case the 1st Appellant is not a necessary party and that this accords with sound legal reasoning.
Dwelling on Appellants’ issue three, the Respondent in the main maintained a contrary position to that of the Appellants and submitted to the effect that the lower Court properly distinguished the case of Fajemirokun V Commercial Bank of Nigeria Ltd (supra) given the facts of the application before it.
It is the stance of the Respondent that the Policemen involved in his arrest did not act in their capacity as members of Nigerian Police Force who were in the execution of their duties whether lawful or unlawful. That in the circumstances, the Nigeria Police Force was not a necessary party in his (Respondent?s) application for the enforcement of his fundamental rights. This Court was urged to resolve this issue in favour of the Respondent.
Parties in the instant case filed written addresses to which the lower Court adverted its mind in coming to its decision. The Appellants written address is on pages 18 – 26 of the record. Therein, the first of the five issues formulated by the Appellants for the determination of the Respondent’s application before the lower Court and which can be said to be analogous to their issue three in the instant appeal reads:-
”Whether non-inclusion of Police as a party in the Application in a matter he alleged that two (2) Policemen arrested, detained and tortured him has not rendered the Application incompetent
The lower Court dwelled on the submissions of the Appellants on the issue re-produced above on pages 72 – 73.
This is what the said Court said: –
”Now, taking issue No. 1, could it be said that the non-joinder of the Police in this action is a fundamental vice as to warrant dismiss (sic) of this suit? Surely, the argument of Respondents in paragraph 4.04 of their address, misquoted the Applicant with respect to the policemen on duty at the bank premises. In paragraph 9 of his affidavit in support of the Application, Applicant averred that
That the said Mrs. Nwabughogu,. ordered her staff, the security men, the gatemen and 2 police officers attached to the bank to arrest and detain me. The policemen, the gatemen and uniformed private security guards of the bank arrested and detained on her instructions”.
Certainly, Applicant did not state that only the two policemen arrested and detained him, as Respondents try to make out. In this case, there is nothing to show that a complaint was made to the police. The Police had nothing to do with and were not invited into the matter by the Respondents or any other person/body quite unlike in the case of Fajemirokun v. Commercial Bank supra. Learned counsel for Applicant properly distinguished the Fajemirokun supra and I certainly agree with his submissions on the issue.
Definitely the Respondents cannot rely on the decision of the Supreme Court in Fajemirokun’s case to seek to defeat the case of the Applicant which is totally different from the facts and circumstances under which the Supreme Court gave its decision in the said Fajemirokun’s case. The Applicant is even at liberty to choose amongst the various persons that infringed his rights and sue such an (sic) one ora/any (sic) number persons as he can recover his claim from. This view is supported by the case of Iyere v Bendel Feed & Flour Mills Ltd supra where the Supreme Court held that:
”… where several people are jointly liable, the plaintiff is at liberty to select and sue anyone or any number of them as he can recover his claim in full from those he sued.
Respondents therefore fail in their issue No. 1.
Order II of the FREP Rules make provisions in relation to cause of action and ?mode of commencement of action? and they state thus:-
1. Any person who alleges that the infringement of any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur, for redress:
2. An application for the enforcement of the Fundamental Right may be made by any originating process accepted by the Court which shall, subject to the provisions of these Rules, be without leave of Court.
I do not understand the Appellants under their issue three to be disputing the fact that the right which the Applicant set out to enforce by the instant case is one guaranteed him by the Constitution. In my considered view, it is also obvious that the Applicant having regard to the FREP Rules ‘could have commenced an action to enforce the alleged violation of his fundamental right’ by way of originating summons (and I have deliberately couched the words in quotes as I have done, because I am aware that the issue as to whether or not the instant action was properly commenced by way of originating summons is still one for resolution in the appeal).
The position of the law in respect of a Court process taken out for the ventilation of a cause of action as it relates to parties and non-joinder of parties, in my considered view is settled. It is that an action is competent once there is a plaintiff (or an initiator of the action) that has the capacity to sue; a defendant against whom the action is initiated that has the capacity to defend same; and that the non-joinder of a party in a competent action cannot vitiate such an action. In this regard see the case of AYORINDE V. ONI (2000) LPELR 684 (SC) wherein the Supreme Court per Karibi-Whyte, JSC; said thus: –
”…It is an elementary consideration in bringing actions that a writ of summons must not only state the name of a Plaintiff with legal capacity to bring the action, it must also contain the name of a defendant, with legal capacity to defend the action, and the claim against the defendant.
In other words, the writ of summons shall state briefly and clearly the Parties to the action. The subject matter of the claim and the relief sought. There must be a dispute between the Plaintiff and the Defendant – Nnodi v. Okafor (1964) NNLR 132.”
At the commencement of trial, a properly constituted action must contain the Plaintiff, a defendant and the claim against the defendant. In Alhaji Aromire v. Awoyemi (1972) 1 AllNLR (Pt. 1)101, it was held that it was improper to join as co-defendants to an action, persons against whom the Plaintiff has no cause of action and against whom he has not made any claim – See Lajumoke v. Doherty (1969) NMLR 281.
The situation in the instant appeal is different from the case relied upon in the submission by learned counsel to the Appellants, where a necessary party to an action for one reason or the other was not joined, the non-joinder will not render the judgment anullity. It is a correct proposition of law that where an action is properly constituted, with a Plaintiff with legal capacity to bring the action, a defendant with capacity to defend, and a claim with cause of action against the defendants, and the action has satisfied all pre-conditions for instituting the action, the fact that a necessary party to the action has not been joined, is not fatal to the action and will not render the action a nullity. ? See Oladeinde & Anor v. Oduwole (1962) WNLR 41.
Where the nature of the evidence before the Court is such that the case of the parties before it can be determined in the absence of those not joined, it can proceed to do so. It is only in those cases where it will not be right and the Court cannot properly determine the issues before it in the absence of the parties whose participation in the proceeding is essential for the proper, effectual and complete determination of the issues before it, will it be necessary to insist on the joinder of such necessary parties. – See Uku & Ors. v. Okumagba & Ors. (1974) 3SC 35; ..”
In the appeal before us, the Plaintiffs have not brought the Defendants against whom the claim is being sought to enable the exercise of the jurisdiction of the Court for the effectual and complete determination of the issues.
This is not the case of joinder. The Plaintiffs have not brought the defendants against whom a claim has been made. In the absence of the real defendants, the Court cannot proceed with the claim of the Plaintiff. It is left with the only option to strike out the action.
Against the backdrop of the Applicant’s cause of action and the affidavit evidence he placed before the lower Court and reliefs he seeks in this suit, which is to the effect that his arrest was at the instance of the 2nd Appellant, using the members of staff of the 1st Appellant (including its gatemen, security men and two Policemen on guide duty as it were at the Bank) for the purpose, it becomes obvious in my considered view, that the Applicant never considered himself to have been arrested by the Police as an investigatory and arresting authority or agency. It is the Applicant’s case that he was arrested by the 2nd Appellant for whose acts or omissions the 1st Appellant as her employer is responsible.
The Policemen and or the others personnel who the 2nd Appellant used in effecting the arrest of the Applicant having regard to the Applicant’s case, therefore did not qualify as necessary parties as the Applicant did not allege that the Policemen and or others earlier referred to above, acted on their own initiative on seeing that he had come to serve a Court process on the 1st Appellant as it were, and has not sought any relief against them. A fortiori, the Police as an agency.
The Fajemirokun’s case which is also reported as FAJEMIROKUN V. COMMERCIAL BANK (NIG) LTD (2009) LPELR 1231 (SC) which I have read painstakingly, did not decide that the Police is a necessary party in every case in which they are said to have been involved in effecting an arrest. The decision is clear that it is when a report is made to the Police and the Police acting on the report arrests the person reported against, that there is need to join the Police for them to explain the reason for the arrest and to show whether there was a reasonable cause for the arrest of the person in question. The lower Court in my considered view, was therefore not only right in not deferring to the Fajemirokun’s case (supra) but in its reliance on the Iyere case (supra) to show that the Respondent had a right to choose the person(s) to sue in the instant case on the basis of the principle of ‘joint tortfeasors’ so to say. See also in this regard the case of IFEANYI CHUKWU (OSONDU) CO. LTD V. SOLEH BONEH (NIG) LTD (2000) LPELR 1432 (SC).
It is in actions or causes of action (such as election petitions) wherein there are parties designated as ‘statutory parties’ by way of respondents, that a challenge to the non-inclusion of a statutory respondent in an action might invariably vitiate the action and even at that, the legislation in that regard must state this to be the case. The FREP Rules do not in any manner dictate that the Police must be a Respondent in any and every case of alleged wrongful arrest. This apparently is in the knowledge that it is not only the Police that exercises power of arrest. Indeed, there is also what is termed citizen’s arrest.
Flowing from all that has been said is that the non-inclusion of the Police as a party in the application the Respondent brought before the lower Court, could not have and has not in any way rendered the Respondent’s suit incompetent. Appellants’ issue three is accordingly resolved against them.
APPELLANTS’ ISSUE 4 – WHETHER THE LEARNED TRIAL JUDGE DID NOT ERR IN LAW WHEN HE DETERMINED THE MATTER, WHICH IS VERY DISPUTABLE AND CONTENTIOUS BY WAY OF ORIGINATING SUMMONS INSTEAD OF ORDERING FULL HEARING IN THE MATTER WHERE EVIDENCE WILL BE TAKEN AND PARTIES CROSS-EXAMINED TO DETERMINE THE TRUTH OF THE MATTER?
Again, I cannot but observe that the submissions of the Appellants on this issue were only in elaboration or explication of the particulars of ground four in the notice of appeal that have been re-produced hereinbefore. In arguing the issue, they however now made copious references to depositions in the affidavits of the Respondents and their own (i.e. Appellants) which they claimed were in conflict and which required oral evidence for their resolution. It is the stance of the Appellants that the justice of this matter would have been achieved if the lower Court ordered oral evidence having regard to the obvious contradictions in the instant matter brought by way of the originating summons and which it decided.
Dwelling on the issue, the Respondent in the main submitted that fundamental rights are peculiar and their enforcement have special procedures that are not bugged down by technicalities and that the lower Court was not wrong to allow the mode of commencing the instant application to wit: by originating summons, to defeat his (Respondent’s) right to enforce his fundamental right. That the FREP Rules 2009, have simplified the procedure for the enforcement of fundamental rights guaranteed under Chapter (IV) of the Constitution and the African Charter.
Hence, undue delay, technicalities, frivolous objections and prohibitive filing fees charged by the Court for the enforcement of fundamental rights, have been swept away. That by the provisions of Order II Rule 1 of the FREP Rules, 2009 every victim of human rights violation is entitled to seek redress in a High Court located in any State of the Federation where their fundamental rights have been, is being or likely to be contravened and that Section 46(1) of the Constitution gave special powers to the Courts to entertain cases on the breach of fundamental rights. It is the stance of the Respondent that his application that was initiated by way of originating summons was properly entertained by the lower Court.
I do not understand the Appellants’ stance as being that an action for the enforcement of the violation of a person’s fundamental right cannot be properly commenced by way of originating summons. If this is the stance of the Appellants, then, I cannot but say that they are very wrong in the stance. This is because, I am of the considered view that the provisions of Order II Rule 2 which have been re-produced hereinbefore, loudly show that it can. This is so inasmuch as originating summons is clearly and indisputably an originating process known to the Rules of procedure of the lower Court for instituting an action. It is also incontestable or beyond dispute that the lower Court accepted the mode of commencement of the Respondent’s application by way of originating summons as it decided the same on the written addresses filed by the parties against the backdrop of the affidavit evidence they placed before the lower Court.
It is beyond dispute in my considered view that the only manner by which parties are required to place their evidence before a Court entertaining an application for the enforcement of fundamental rights is by affidavits. See in this regard the provisions of Order II Rules 3 – 7 and Order XII of the FREP Rules, which deal with written addresses. See also the case of JACK V. UNIVERSITY OF AGRICULTURE MAKURDI (2004) LPELR 1587 (SC) wherein the Supreme Court dwelling on procedure for hearing of an application for the enforcement of fundamental right said per Katsina-Alu, JSC; (as he then was) thus: –
”The next question is one of procedure. For the enforcement of Fundamental rights, a special procedure has been established by law as prescribed by the Fundamental Rights (Enforcement Procedure) Rules, 1979. The process of enforcement of fundamental rights is commenced by an application made to the Court; first, for leave; and upon leave being granted, by Notice of Motion or by Originating Summons for redress. No oral evidence is called. The application is heard on the affidavit in support of the application and the affidavits which every party to the application proposes to use at the hearing. The affidavits constitute the evidence…”
The grouse of the Appellants under their issue four, given their argument/submissions therein, in my considered view is that the commencement by the Respondent of his application entertained by the lower Court by way of originating summons given the conflicting affidavits filed therein by the parties has deprived the said Court of the ability to properly determine the case. Indeed, I consider it pertinent to say that if the purpose of Appellants’ issue four is to show that the conflicting affidavits of the parties in the Respondent’s application was inimical or detrimental to the proper exercise by the lower Court of its adjudicatory jurisdiction in the Respondent’s application, then the Appellants in my considered view should have availed themselves of the provision of Order VIII of the FREP Rules which deals with ”preliminary objection disputing the Court’s jurisdiction”; or they could have taken advantage of the provision of Order IX Rule 1(i) of the said Rules (which relates to effect of non-compliance in relation to mode of commencement of the application) before the lower Court. See the case of OLIYIDE & SONS LTD V. OAU, ILE-IFE (2018) LPELR 43711 (SC), and UCHENDU V. OGBONI (1999) LPELR 3287(SC) amongst many others.
I am of the considered view that it is obvious from the record that the Appellants did not take advantage of both or either of the provisions of the Orders hereinbefore mentioned, even though it would appear that they obliquely strayed as it were, into the realms of their issue four under consideration, in some parts or portions of their written address before the lower Court. Proceedings under the FREP Rules, in my considered view easily qualify to be classified as being sui generis and suffice it to say that as the Appellants never complained about the propriety of the commencement by the Respondent of his application by way of originating summons and or that his (Respondent?s) cause of action was not one that could be properly decided on affidavit evidence (given what the Appellants considered to be irreconcilable conflicts therein), issue four as argued in the instant appeal, serves no useful purpose.
This is more so when a Court in ”regular cases” is not mandated to hands off a case in which there are conflicting affidavits. See in this regard the case of OGAH V. IKPEAZU (2017) LPELR 42372 (SC) wherein the Supreme Court said thus:-
”This Court has remained resolute on the criteria which justify determination of claims by originating summons. From the seemingly endless number of the decisions of the Court, where the facts are or likely to be in dispute it is improper to commence such action by originating summons. In the case at hand where the learned trial Judge in the exercise of his discretion under Order 3 Rule 8 of the Rules of Court proceeded on appellant’s amended originating summons, the right procedure is for the lower Court to re-appraise the affidavits and documents of both sides and infer whether or not the facts therein are in such dispute or conflict that a decision one way or another is impossible. If the facts remain in conflict, pleadings are ordered and the matter proceeds accordingly.”
See also the case of CHAIRMAN NATIONAL POPULATION COMMISSION V. CHAIRMAN, IKERE LOCAL GOVT (2001) LPELR 3166 (SC) wherein the Supreme Court per Ayoola, JSC; said thus: –
”Whether proceedings may be heard entirely on affidavit evidence or not is not to be determined by the form of the proceedings but by the nature of the issues and the parties’ reaction to the facts in issue in the proceedings. Where there is no contentious issue of fact in the proceedings, no reasonable objection can be taken to a hearing on the affidavits. It is when there is serious dispute as to facts to be resolved that trial on affidavits is inappropriate.”
I have read the record painstakingly, and it is obvious ex-facie the judgment of the lower court from pages 77 – 83 that the said Court accorded the affidavits filed before it by the parties (which the Appellants have alleged to be conflicting) insightful or astute consideration and that the said Court actually (and in my considered view, rightly too) found no conflict therein as it were, in respect of the claim of the Respondent that his fundamental rights under Sections 34(1)(a) and 35 were violated by the Appellants. Indeed, I am of the considered view that the very fact that the Appellants never controverted the fact that the Respondent was at the premises of the 1st Appellant to serve a Court process, the service of which the said 1st Respondent did not voluntarily accept through the 2nd Appellant or any of the personnel of the said 1st Appellant, inferentially rendered the account of the Respondent more probable than the case of the Appellants that went to suggest that the said Respondent is just out to make fast money and has for purpose concocted the instant case.
Therefore, flowing from all that has been said in respect of Appellants’ issue four, is that the said issue must be and is hereby resolved against them.
APPELLANTS’ ISSUE FIVE – WHETHER THE LEARNED TRIAL JUDGE DID NOT ERR IN LAW WHEN HE SACRIFICED THE PROTECTION OF INTEGRITY OF THE COURT AT THE ALTER (SIC) OF COMPENSATING A COURT BAILIFF? (GROUND FIVE).
As is the case in the other issues formulated for the determination of the appeal, the arguments of the Appellants under this issue, was just in elaboration of the particulars of this issue which have been re-produced hereinbefore. The stance of the Appellants in their arguments/submissions under this issue, remained to the effect that the lower Court should have invoked its powers of contempt on them in order to protect the dignity and integrity of the Court, rather than entertaining the Respondent’s action and granting him the reliefs he sought therein.
That this is more so as the rule of law is that wherever there is disobedience to any order made by the Court or Judge under the Fundamental Right Enforcement Procedure Rules, the hearing of the substantive case will be suspended to allow contempt proceedings to be taken. That this is necessary so as to preserve and secure the dignity and authority of the Court. That the lower Court in the circumstances was wrong to have entertained the Respondent’s action and to have awarded him monetary compensation without first hearing and determining the issue of the alleged contempt of Court, which takes precedent to enforcement of Fundamental Right of an individual.
The arguments/submissions of the Respondent on the issue under consideration, I cannot but also observe is no different from the position taken by the lower Court in respect of the self-same issue in its judgment and I see no useful purpose it will serve to highlight the Respondent’s arguments/submissions on the issue as I will be re-producing what the lower Court said regarding the said issue shortly.
This is what the lower Court said on the issue on page 76 of the record: –
”On their issue No. 4, Respondents are of the view that the alleged acts of the Respondents are in contempt of Court and not an issue of enforcement of the Applicant’s Fundamental Rights. Contempt of Court is criminal in nature, and as rightly pointed out by learned counsel for the Applicant, criminal responsibility is no bar to any civil action such as the present matter. The Applicant has brought this action, not as a representative of the State but in his personal capacity and he is entitled to independently pursue his right to compensation from the Respondents who in his estimation have wronged him. That is his inalienable right. He is therefore entitled to bring this civil action to enforce his rights without prejudice to the right of the State to prosecute the Respondents for contempt.
There’s not (sic) doubt that the Court has inherent jurisdiction to formulate stands necessary for the protection of fundamental rights guaranteed by the Constitution.
The Court’s power in this regard derives from the correlative duty inherent in the guaranteed rights. According to the case of Shri D.K. Rasu v State of Bengal of India, Applicant does not have to fight the State’s battle them. The action before the Court is proper as it is no bar to any criminal or quasi criminal act the State may wish to bring against the Respondents in the form contempt as suggested by learned counsel for the Respondents.”
I cannot start the resolution of this issue than by observing that I have not seen any provision in the FREP Rules to the effect that a competent Court entertaining a fundamental right proceeding that has been properly commenced before it, must suspend the proceedings to allow contempt proceedings to be taken as contended by the Appellants. In any event, there was no contempt proceedings before the lower Court in the application of the Respondent which the lower Court entertained. Aside from this, I am of the considered view that the Appellants in still pursuing their issue five under consideration in this Court, given the incisive manner in which the lower Court dealt with the same issue in the portion of its judgment re-produced above, would appear hell-bent on reducing the primacy of place or pre-eminence which the Constitution and the African Charter have deliberately given fundamental rights and the enforcement of same when it is alleged that any of them has been, is being or is likely to be violated.
In this regard see Order 1 Rule 2 of the FREP Rules wherein ‘Fundamental Right’ is said to mean ”any right provided for under Chapter IV of the Constitution, and includes any right stipulated in the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act” as well as Order II Rule 2 which shows that the enforcement of any particular fundamental right has not only been made so fluid or adaptable to the extent that no leave of Court is required to commence the same; but that the enforcement of a fundamental right, cannot be affected by any limitation statute whatsoever by virtue of Order III.
In other words, I am of the considered view that the stance of the Appellants that the Respondent cannot pursue the enforcement of his fundamental right as they (Appellants) committed a criminal offence to wit: contempt of Court (if the case of the Respondent were believed and which the lower Court obviously believed in its judgment), and that the Respondent’s application for the enforcement of his fundamental right ought to have been put in abeyance or suspended until they (Appellants) were sanctioned for the said contempt, is nothing short of an attempt to introduce some kind of condition precedent that the Respondent ought to have fulfilled before his application can be said to have been properly commenced and which stance is clearly antithetical to the position of the law in relation to the enforcement of fundamental rights.
Indeed, with deeper reflection, all that I understand the Appellants to be attempting to do by their stance is to re-introduce their own adulterated or corrupted version of the Rule in Smith and Selwyn into our Laws. I have used the words, ‘adulterated’ or ‘corrupted’ because the Appellants did not even show in their submission that the rule where applicable is only restricted to ‘felony’. See in this regard the case of OJIKUTU V. A.C.B. LTD. [1968] NSCC 32 and the decision of Uwais, J; (as he then was) in the case of OYEWALE V. OKOLI, 1974 NNLR 40.
In any event, the position of this Court in years past and even recently, is that the rule in Smith v. Selwyn is no longer applicable in this Country (at least in the absence of any enactment that has specifically adopted the said rule). See in this regard the cases ofVERITAS INSURANCE CO. LTD. V CITI TRUST INVESTMENTS LTD (1993) 3 NWLR (Pt. 281) 349 and FRN V. LALWANI (2013) LPELR 20376 (CA).
Flowing from all that has been said above, and as it is glaring that it is not the intendment of the FREP Rules that the enforcement by a person of his fundamental right is to be subjected to the fulfilment of any condition precedent whatsoever, once the proceeding is initiated by a process accepted by the trial Court, it becomes obvious that Appellants’ issue 5 must be and is hereby resolved against them.
APPELLANTS’ ISSUE 1 – WHETHER THE LEARNED TRIAL JUDGE DID NOT ERR IN LAW WHEN HE BECAME A JUDGE IN HIS OWN CAUSE AND TRIED THE CASE OF THE RESPONDENT, HIS COURT BAILIFF IN A MATTER THAT STEMMED FROM THE SERVICE OF AN ORDER MADE BY HIM ON THE 1ST APPELLANT BY THE RESPONDENT AND THE TRIAL JUDGE MAY HAVE GIVEN APPROVAL FOR THE ACTION IN LINE WITH PARAGRAPH 10 OF THE RESPONDENT’S FURTHER AFFIDAVIT ON PAGE 48 OF THE RECORD OF APPEAL?
AND
APPELLANTS’ ISSUE 2 – WHETHER THERE IS NO LIKELIHOOD OF BIAS ON PART OF THE TRIAL JUDGE AT THE LOWER COURT AGAINST THE APPELLANTS IN THAT THE TRIAL JUDGE HAD FORE-KNOWLEDGE OF THE FACTS OF THE CASE IN THAT THE COURT ORDER THAT THE RESPONDENT WENT TO SERVE ON THE 1ST APPELLANT WAS A COURT ORDER MADE BY THE LEARNED TRIAL JUDGE AND THE RESPONDENT IS HIS COURT BAILIFF WHO HE KNOWS VERY WELL AND THE TRIAL JUDGE MAY HAVE GIVEN APPROVAL FOR THE ACTION IN LINE WITH PARAGRAPH 10 OF THE RESPONDENT’S FURTHER AFFIDAVIT OF THE RESPONDENT ON PAGE 48 OF THE RECORD OF APPEAL?
I do not see the need to engage in any review of the arguments of the Appellants on the above issues as the arguments/submissions of the Appellants on the said issue are nothing more than an elaboration of the respective particulars of the said issues which I have re-produced hereinbefore.
The position of the Respondent on the issues, in my considered view equally admits of no elaborate consideration.
I however consider it pertinent to state that the Respondent in his brief of argument challenged as it were, each of Appellants’ issues 1 and 2, as being incompetent in that they do not arise from the grounds of appeal and also do not conform strictly to the grounds of appeal.
I am of the considered view that the basis on which the Appellants have predicated their issues of fair hearing, is clearly not on facts that were established at the hearing and/or in the processes filed by the parties in the Respondent’s application. This much is clear from the bold and underline I introduced into the issues when I re-produced them hereinbefore. In the first issue, the issue of fair hearing was raised on the basis that ‘the trial Judge may have given approval for the action in line with paragraph 10 of the Respondent’s further affidavit on page 48 of the record of appeal’.
In issue 2, the basis of the lack of fair hearing was on the supposition that ‘the Respondent is his court bailiff who he knows very well and trial Judge may have given approval for the action in line with paragraph 10 of the Respondent’s further affidavit of the Respondent on page 48 of the record of appeal.’
Paragraph 10 of the further affidavit of the Respondent on page 48 of the record reads thus: –
”That paragraph 19 of the counter affidavit is false. I am gainfully employed by Abia State Government as a pensionable staff and do not go about looking for easy money. I have never come into personal contact with the 2nd Respondent since the incident of 2nd April, 2012 or at all. I waited for the approval of my superiors before I can take legal action to enforce my fundamental rights in this matter and generally, I must seek and obtained the approval of my superiors as a civil servant before I can do anything in the course of my job.”
Paragraph 19 of the counter-affidavit to which the Respondent responded in the above re-produced deposition reads thus: –
”That in answer to paragraphs 15, 16, and 17 of the Affidavit of facts, I am not aware that the Applicant made any report to the Assistant Chief Registrar and he passed no ordeal in our office, he was not demoralized in the 1st Respondent’s premises and he is making all the false averments and claims for the purpose of fishing for fast money from us.”
Paragraphs 15, 16 and 17 of the affidavit setting out facts upon which application is made read thus:-
15. That when I arrived my office, I made formal report to the Assistant Chief Registrar, narrating and explaining my ordeal in the hands of the Respondents and their agents. The Assistant Chief Registrar directed me to swear to an affidavit that the facts I stated are true and I swore to an affidavit before the Commissioner for Oaths stating the facts that happened. A copy of the affidavit I swore on 3rd of April, 2012 is exhibited herein and marked as Exhibit A.
16. That I passed through all these ordeals in the course of going about my lawful and official duties as bailiff of the Honourable Court.
17. That since this incident happened to me in the course of my lawful official duty, I have become demoralized and lacked the necessary courage and confidence to attend to my duties as a bailiff of the Honourable Court.
I am of the considered view that it is because it is clear as crystal that the above re-produced depositions taken together or separately, do not establish any fact against the person of the learned trial Judge, that the Appellants engaged in the suppositions and making of inferences not flowing from any established fact in the argument of their issues 1 and 2.
I cannot but say that if the Appellants have availed themselves of the decision of the Supreme Court in the case of ORUGBO V. UNA (2002) 16 NWLR (Pt. 792) 175, they would have seen the obvious unviability of their issues 1 and 2, given their reliance on suppositions and inferences not based on established facts, in arguing the same. Re-produced hereunder is what the Supreme Court per Tobi, JSC; said in the case referred to above: –
”There is need for caution in the application of the fair hearing provision in the Constitution. Where the facts of the case, as in this appeal, do not support the application of the provision, parties should not urge the Court to invoke the provision, and even if so urged, the Court should not succumb to the pressure. Both the respondents and the Court below saw breach of fair hearing principle by the Koko District Customary Court. I do not see any breach. The Court did a very good job and I commend it.
It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial Court. But it is not so and it cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation and the Court as the umpire, so to say, has a legal duty to apply it in the litigation, in the interest of fair play and justice. The Courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal.
Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless, or completely dead outside the facts of the case.”
Suffice it to say, that even though I find the Respondent’s objection as it were, to Appellants? issues 1 and 2, to be well thought out, I however don’t think it will serve the interest of justice well enough, to strike out the said issues, rather, I am of the considered view that the interest of justice will be better served if the said issues (which have been argued by parties) are resolved on the merit against the Appellants as they obviously have to be so resolved against the backdrop of the judgment in the ORUGBO case (supra). Accordingly, Appellants issues 1 and 2 are resolved against them.
In the final analysis, the instant appeal is clearly unmeritorious as all the issues formulated for its determination have been resolved against the Appellants. The judgment of the lower Court as appealed against by the Appellants, is accordingly affirmed.
Costs of N50,000.00 is awarded against the Appellants and in favour of the Respondent.
CROSS-APPEAL:
The Respondent/Cross-Appellant (hereafter to be simply referred to as Cross-Appellant) initiated the cross appeal by filing on 29/1/2014 at the registry of the lower Court a notice of cross-appeal dated 28/1/2014. The process contains three grounds of appeal and the grounds and their respective particulars read thus: –
GROUND ONE
The learned trial Judge erred in law when he failed to properly assess damages payable to the Cross-Appellant as compensation for the cross-respondent’s breach of his fundamental rights to liberty and dignity.
PARTICULARS OF ERROR
i. The claims of the cross-appellant at the trial Court is for compensation in the sum of N50,000,000.00 being exemplary and aggravated damages as compensation for the breach of the cross-appellant’s fundamental rights by the cross-respondents.
ii. The learned trial Judge found as a fact that the fundamental right rights of the cross-appellant was breached by the respondent in the following ways:
a. The cross-appellant was compelled by the cross-respondent’s (sic) agents and staff including security men attached to the bank to sit on the wet ground/floor under the scorching heat of the sun within the bank premises on the instruction of the cross-respondents.
b. The cross-appellant was compelled by the cross-respondents to remain seated on the wet ground but under the sun for about 2 hours 15 minutes until he became exhausted and pleaded with the bank security personnel who kept him under humiliating conditions to allow him go on the conditions set by the 2nd respondent.
c. The appellant was found to have been subjected to torture, inhuman or degrading treatment yet the learned trial Judge awarded a paltry sum of N500,000.00 as compensation in the face of the obvious tortureand inhuman or degrading treatment the cross-respondents meted on the cross-appellant.
d. What could be more indignified (sic) and degrading as compelling a fellow human being who came to perform his duty to be confined to a particular place in conditions not conducive to the person’s wellbeing is the findings (sic) of the learned trial Judge yet he awarded N500,000.00 compensation.
iii. The award of N500,000.00 as compensation for the cross-appellant is too low in the circumstances of the breach of the cross-appellant’s fundamental right and the magnitude of the humiliating/dehumanising treatment meted on the cross-appellant.
GROUND TWO
The learned trial Judge erred in law when it failed to consider established principles laid down by superior Courts in award of damages before awarding the sum of N500,000.00 and this occasioned a substantial miscarriage of justice against the cross-appellant.
PARTICULARS OF ERROR
i. The principles in determining amount of damages payable as compensation for injured party have long been established by appellate Courts in a plethora of decided cases to include the nature of injury caused and the magnitude of injury suffered.
ii. The learned trial Judge ignored these established principles and awarded a beggarly sum of N500,000.00 to the cross-appellant as compensation for the infringement of the cross-appellant’s fundamental rights as proved before the Court below.
iii. The learned trial Judge found as a fact that the victim, cross-appellant is a bailiff of the Court who was assigned a duty to effect service of Court’s processes on the cross-respondents yet the learned trial Judge did not award reasonable compensation to deter the cross-respondents from intimidating Court officials on lawful duties.
iv. The award of N500,000.00 as compensation to the cross-appellant did not follow laid down principles in the award of damages in relation to the proved facts before the learned trial Judge.
GROUND THREE
The learned trial Judge erred in law in awarding the sum of N500,000.00 only as compensation to the cross-appellant for the breach of his fundamental rights.
PARTICULARS OF ERROR
i. The cross-appellant by record is a bailiff of Court in discharge of his official duties to the State.
ii. The learned trial Judge found that the cross-appellant was unlawfully detained and tortured for 2 hours 15 minutes in the premises of the cross-respondents on the instruction of the cross-respondents.
iii. The learned trial Judge found that the humiliation of the cross appellant and the degrading treatment meted on him was very severe.
iv. The amount of compensation awarded to the cross-appellant in the sum of N500,000.00 is extremely too low.
The reliefs sought from this Court as contained in the notice of cross-appeal are: (i) to dismiss the appeal and uphold the judgment of the lower Court except the award of N500,000.00 compensation against the cross-respondent (sic); (ii) to set aside that part of the final judgment of the High Court of Abia State, Osisioma Division that awarded the sum of N500,000.00 as exemplary or aggravated damages against the cross-respondent (sic); and (iii) to allow Cross-Appellant’s appeal.
The cross-appeal as it has been disclosed hereinbefore, was entertained on 18/4/2018 and learned leading counsel Chidi Aloy-Nzofutachi in urging the Court to allow the cross-appeal adopted and relied on brief of argument of the Cross-Appellant dated 30/1/2015 and filed on 18/2/2015 but deemed as properly filed and served on 22/3/2017, and the reply brief of the said Cross-Appellant filed on 12/3/2018 but deemed as properly filed on 18/4/2018.
In the same vein, learned counsel D.O. Uruakpa in urging the Court to dismiss the cross-appeal adopted and relied on the brief of argument of the Cross-Respondents dated 4/4/2017 and filed on 6/4/2017.
The Cross-Appellant formulated two issues for the determination of the cross-appeal from the three grounds in the notice filed therein and they are: –
a. Whether in the circumstances of this case, the learned trial judge was guided by the proper legal principles of law in assessment of damages when he awarded the sum of (N500, 000.00) Five Hundred Thousand naira only as compensation for the infringement of the Fundamental Rights of the Cross- Appellant——-GROUNDS 1 & 2 OF CROSS APPEAL.
b. Whether the learned trial judge was right in awarding the sum of (N500,000.00) Five Hundred Thousand Naira only as compensation for the infringement of the fundamental rights of the Cross-Appellant in the circumstances of this case. GROUND 3 OF CROSS APPEAL.
I have read the Cross-Respondents’ brief of argument and I do not see any issue or issues formulated for the determination of the cross-appeal by them. However, as they glaringly responded to the issues formulated by the Cross-Appellant, in their brief of argument, they are in my considered view deemed to have adopted the issues formulated by the Cross-Appellant as re-produced hereinbefore for the determination of the appeal.
The Cross-Appellant in arguing the two issues formulated by him for the purpose of demonstrating that the award of N500,000.00 made by the lower Court was too small filed a 28-page brief of A4 paper size and a 5-page reply brief of the same paper size. The Cross-Respondents in urging the Court to resolve the cross-appeal against the Cross-Appellant equally filed an 8 page brief of argument of the same paper size.
I have painstakingly read all the briefs of both parties in the cross-appeal and I cannot but observe that while the Cross-Appellant has made some exotic submissions in his brief of argument, the arguments of the Cross-Respondents would appear to be more focused on the question as to whether this Court as an appellate Court can properly interfere with the compensation awarded the Cross-Appellant for the violation of the Cross-Appellant’s fundamental right as found established by the lower Court (even though they maintained their position that the lower Court was wrong in finding the Cross-Appellant’s fundamental right to have been violated).
The settled position of the law, it must be appreciated, is to the effect that award of damages is at the discretion of the lower Court, hence this Court as an appellate Court has always been admonished not to make a practice of interfering with damages awarded by the trial Court. Therefore, I am of the considered view that all that calls for consideration in the instant cross-appeal is whether the award of the lower Court complained about is such that this Court can properly interfere with.
The law is settled as to when an appellate Court can interfere with an award of damages made by a trial Court having regard to the cases. In this regard, see the case of SPDC LTD V. TIEBO (2005) LPELR 3203 (SC) wherein the Supreme Court per Oguntade, JSC; said thus: –
”With respect to the award of five million naira as general damages, a different consideration applies. This was an award made by the trial Judge sitting as a jury and judge of the facts. The only circumstance justifying an interference with the award of general damages made by a Court of trial by an appellate Court is when the award is manifestly too high or manifestly too little so as to raise inference that it was an erroneous assessment of the damage suffered or where the trial Judge had made the award relying on a wrong principle.”
This position was reiterated in the case of ODUWOLE V. WEST (2010) LPELR 2263(SC) wherein Ogbuabu, JSC; said thus: –
It is now also firmly settled that in order to interfere or justify the interfering with any decision of a trial judge on the amount or quantum of damages awarded or awardable; the Appellate Court has to be convinced either, (a) that the judge acted upon some wrong principles of law or (b) that the amount awarded was so extremely high or very low or small as to make it an entirely erroneous estimate of the damage to which the plaintiff is entitled.
The said award in the opinion of the Appellate Court, must be arbitrary, erroneous and based on a wrong exercise of discretion.
A painstaking perusal of the record particularly from pages 76 – 84 discloses that the lower Court clearly averted its mind to the circumstances of the case particularly as presented by the Cross-Appellant in the affidavit of facts he relied upon in support of his application in coming to its conclusion regarding the fundamental rights of the Cross-Appellant that were violated by the Cross-Respondents. It is also obvious from the record that it was on the facts contained in the said affidavit which the lower Court found to have been established that the lower Court made the award of N500,000.00 against the Cross-Respondents.
Going by what the record has disclosed, and against which the Cross-Appellant has not appealed, I consider it a total misapprehension of the duty of the lower Court in the assessment of damages due to him for the Cross-Appellant to have argued in his brief of argument amongst others to the effect that the award made was not such that could have deterred the Cross-Respondents from committing a similar infraction of another person’s fundamental right in future and that it was not even enough to cover his counsel’s fees.
I cannot but observe that the Cross-Appellant in portions of his brief of argument would appear not to appreciate the fact that he was not suing for the enforcement of any purported right belonging to the judiciary as it were. It would therefore be absurd if the lower Court in its assessment of the award to be granted the Cross-Appellant expressly or impliedly showed that the award was designed to punish the Cross-Respondents for any infraction they committed regarding the administration of justice. The lower Court as it was consistently demonstrated by it in its judgment, has its own means or mechanism of punishing whoever violates its process or processes or who impedes the smooth administration of justice.
Hence, the Cross-Appellants in their brief of argument in my considered view were rightly ‘pipped by the submissions of the Cross-Appellant’s counsel on page 21 of his brief precisely put paragraph 7.0 wherein the Cross-Appellant’s counsel submitted that if the Court of Appeal fails to interfere with the award of N500,00.00 as compensation to the Cross-Appellant, it would amount to a confirmation by the Court of Appeal that the action of the Cross-Respondents is permissible.’
The allegation of the Cross-Appellant that the damages awarded him is not even enough to cover his counsel’s fees, also cannot properly move or provoke this Court to interfere with the award made by the lower Court, firstly inasmuch as the Cross-Appellant never cited any case or stated any principle of law that a trial Court in the assessment of damages (in contradiction to costs) awardable to a party is obligated to take into consideration the fee payable to the party’s counsel. In any event, assuming there is such a principle (which is not conceded), the fact that the Cross-Appellant never made it an issue in the processes he filed before the Court in my considered view renders such an item of assessment to be clearly baseless in the instant case.
The Cross-Appellant is a bailiff whose fundamental rights as found by the lower Court was violated by the Cross-Respondents in the course of his employment (and if I may add as it is so apparent from the record) during official working hours which are to be devoted to official duty and not his personal time to use as he likes. The Cross-Appellant has not suggested or shown that he has become useless to the organisation consequent to the violation of his fundamental rights, to the extent that he has to resign from the job. The Cross-Appellant given the circumstances of the established facts in the instant case (and which it is clear from the record, the lower Court took into consideration) would appear to want N50 million or at least something more than what was awarded him by the lower Court. I simply do not see how this Court can properly increase the award made by the lower Court. The Cross-Appellant in my considered view should be very glad that there is no appeal against the award made in his favour.
Flowing from all that has been said, is that the two issues formulated by the Cross-Appellant for the determination of the instant cross-appeal are resolved against him.
In the final analysis, I find the cross-appeal to be highly unmeritorious. It fails and it is hereby dismissed. The part of the judgment of the lower Court appealed against in the cross-appeal is accordingly upheld.
Costs in the sum of N50,000.00 is awarded in favour of the Cross-Respondents and against the Cross-Appellant.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree
ITA GEORGE MBABA, J.C.A.: I had the opportunity of reading the lead judgment just delivered by my learned brother, A.O. LOKULO SODIPE JCA, and I agree completely with his reasoning and conclusion that the appeal lacks merit and that the cross-appeal too, seeking to improve the damages awarded by the trial judge also lacks merit.
I too dismiss the Appeal and the cross-Appeal and abide by the consequential orders in the lead judgment.
Appearances:
D.O. UruakpaFor Appellant(s)
Chidi Aloy-Nzofutachi with him, Amechi Uhuo and Reason OjiminiFor Respondent(s)
