Alhaji Bala Gusau & Ors V. Emeka Umezurike & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A (Delivering the Leading Judgment)

The proceedings that generated the appeal originated from the decision of the High Court of Justice of Kwara State sitting at Ilorin (the Court below) declaring the detention of the 1st respondent wrongful and awarding N500,000 compensatory damages to the 1st respondent against the appellants for the infringement of the 1st respondent’s fundamental right to personal liberty.

The substance of the controversy arose under the following circumstances. The 1st respondent, a ile merchant, imparted ile materials from Togo. His business partner, the All State Company (Nig), was to clear the goods with men of the Nigeria Customs Excise and related agencies for him. Both of them were cash strapped. His business partner decided to borrow the sum of N1,849,000 with interest of N200,000 thereon making the total sum of N2,049,000 from the 1st appellant. The 1st respondent undertook to pay the loan. A cheque covering the loan was issued to the 1st appellant by the 1st respondent. The goods were, however, impounded by the Nigeria Customs and Excise. The 1st appellant presented the cheque dated 6.5.2005, for payment on 9.6.2005. It bounced. 1st appellant proceed to lodge complaint with 2nd – 4th appellants’ agents on the dud or bounced cheque. Pursuant to the report, the 1st respondent was arrested and detained by the 2nd – 4th appellants’ agents before he was charged to court.

The 1st appellant appealed separately against the decision of the court below. His notice of appeal conveying six grounds of appeal was filed on 19.1.2007. In the 1st appellant’s brief of argument dated

and filed on 28.3.08, by his learned counsel, Mr. Dayo Akinlaja, two issues tied to grounds 1, 2,4 and 3, 5 of the appeal respectively were coined for determination in the appeal thus:

“1. Whether on the available evidence in this case the learned trial judge was not wrong in holding that the detention of the 1st respondent was unlawful and in holding the appellant jointly liable for the detention – Grounds 1, 2 and 4.

2. Whether of whatever event the award by the learned trial judge of a sum of N500,000.00 as general damages in favour of the 1st respondent was not unwarranted having regard to the circumstances of this case – Grounds 3 and 5.”

In arguing issue 1, the 1st appellant’s learned counsel referred to paragraphs 4 – 20 of the 2nd respondent’s affidavit to contend that the affidavit did not reveal the source of information of the deponent, nor the fact that the deponent believed in the information while paragraphs 32, 36 and 41 thereof are legal arguments and conclusions offending sections 87 and 88 of the Evidence Act respectively and same should have been struck out by the court below and, having not done so, the said paragraphs of the affidavit must be discountenanced in accordance with the cases of A/G Federation (2006) ALL FWLR (Pt. 299) 1450 at 1500 -1501 and G.A.S. V. Thahal (2004) 4 SCNJ 89 at 104 and 107.

And that, the effect of striking out the said paragraphs of the affidavit leaves no evidence in support of the alleged detention of the 1st respondent who did not make the affidavit evidence, nor was the exact duration of the detention established which left the court below to speculate on the period of the detention contrary to the case of O. B. M. C V. M. B. A. S. Ltd. (2005) ALL FWLR (Pt. 261) 216 at 234; more so the declaratory relief granted by the court below that the detention was wrongful being equitable in content, cannot be granted on speculation but on materials placed before the court as held in the cases of Planwell Ltd. V. Ogala (2003) 12 SCNJ 58 at 65 and Livestock Feeds PLC V. Funtua (2005) ALL FWLR (Pt. 286) 753 at 770 – 771.

And that with the admission of the 1st respondent in his oral evidence that he issued the cheque when he knew his account was in debit and, the cheque was repeatedly dishonoured on presentation for lack of funds constituted an offence justifying the 1st appellant’s report to the agents of the 2nd 4th appellants, which the latter investigated and decided on their own to charge the1st respondent to court demonstrating the dispute was not civil in nature and, the 2nd -4th respondents’ agents, not the 1tt appellant, took the decision to arrest the 1st respondent on the said criminal allegation which the court below held was lawful vindicated the 1st appellant’s criminal report to the agents of the 2nd 4th appellants vide Duru and Another V. Nwangwu (2006) 5 SC (Pt. 111) 70 at 71 and 78. It was contended finally on issue 1 that the evidence of the 1st – 2nd respondents was materially contradictory and the court below was wrong in picking and choosing from the said evidence in breach of the decisions in the cases of Boy Muka and Others V. State (1976) 9-10 SC (Reprint) 193 at 205 and Yusuf V. Obasanjo (2005) ALL FWLR (pt. 294) 387 at 483, more so the court below held 2nd respondent was not a witness of truth and should not have relied on his evidence to find the 1st appellant liable for the alleged detention of the 1st respondent.

Submissions on issue 2 pointed out that there was no credible evidence in proof of the alleged detention of the 1st respondent as the evidence was lacking in respect of its duration or time and dates to warrant the award of N500,000 compensatory damages to the 1st respondent vide Ayanwale v. Atanda (1988) 1 NWLR (Pt. 68) 22 at 35 – 36. Also, the evidence by the 2nd respondent that the 1st respondent was detained for four days should not have been believed by the court below after it found as a fact that the 2nd respondent was not a witness of truth; that the damages which the respondents sought in paragraph 40 of the 2nd respondent’s counter affidavit was for loss of earnings without strict proof of same; and that the 1st appellant merely exercised his civic duty of reporting the 1st respondent to agents of the 2nd -4th respondents in respect of the commission of an offence.

The 2nd – 4th appellants’ notice of appeal dated 10.11.08, was filed out of time on 4.3.09, upon an order of the Court made on the same date pursuant to a motion for enlargement of time to lodge the appeal. The notice of appeal in question has two grounds of appeal. A joint brief of argument of the 2nd -4th appellants dated and filed on 9.2.2011, but deemed duly filed and served on 30.6.2011, was prepared by Mrs. R. A. Shittu, Senior State Counsel, Ministry of Justice, Kwara State. Two issues were formulated by the learned senior state counsel in the brief for determination of the appeal in these words:

“ISSUE NUMBER ONE

“Whether from the totality of evidence available in case the learned trial Judge was right to hold that detention of the 1st Respondent by the agents of the 2nd – 4th Appellants at the behest of the 1st Appellant is illegal, unlawful or unconstitutional.”

ISSUE NUMBER TWO