Aniekan Amos Peter V. Asst. Inspt. Gen. Of Police Zone 6 Calabar (2001)

LawGlobal-Hub Lead Judgment Report

OPENE, J.C.A.

The facts resulting to this case are that on 8/2/97 the appellant’s Volkwagen Beetle Car No. AG 195 Cal Model 1500 was impounded by some agents of the respondents while being driven along Marian Road Calabar by one Innocent Friday Udo. The car taken to the premises of the Nigerian Police Force, Zone 6, Headquarters by the agents of the Police, who later refused to release the said Volkwagen car to him. It was as a result of this that the appellant filed an action in the Federal High Court Holden at Calabar pursuant to section 40(1) of the 1979 Constitution of Federal Republic of Nigeria and Order 1 rule 2(1) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 seeking the following reliefs:-

1. A declaration that the respondent by impounding and thereafter detaining at the Nigeria Police Force, Zone 6 Headquarters, Calabar Cross River State for no reason(s) whatsoever the appellant’s Volkwagen Model 1500 with registration Ag 195 CAL since the 8th day of February, 1997 has violated the appellant’s fundamental right to property as secured, entrenched and guaranteed by section 42(1) of the Constitution of the Federal Republic of Nigeria, 1979 (as amended).
2. A mandatory order of court compelling the respondent including his agents, servants and/or officers to return to the applicant the said Volkwagen Model 1500 with registration No. Ag 195 CAL within 48 hours of the delivery of judgment in this case.
3. The sum of N500,000.00 being General and/or exemplary damages for unlawful detention of the said Volkwagen.
4. A perpetual injunction restraining the respondents including their agents servants, men or officers from impounding and detaining the said Volkwagen Car No. AG 195 CAL.

Leave was then granted to the appellant on 28/7/97 to apply for the enforcement of his fundamental right. The appellant there upon filed his motion on Notice on 31/7/97 and the respondents were consequently served with all the court processes. The respondents did not file any counter-affidavit and also did not defend the action. The motion was argued and on 24/5/98, the learned trial Judge, Nwaogwugwu J. delivered his judgment in which he granted all the releifs sought by the appellant and awarded the appellant the sum of N20,000.00 as exemplary damages.

The appellant was not satisfied with the award of N20,000.00 exemplary damages and has therefore appealed to this court against the said award.

The appellant filed his brief of argument through his Counsel and the respondents who were served with all court processes and the appellant’s brief, did not file any respondent’s brief.

On 11/1/2000, the appellant filed a motion praying the court for an order that the appeal be heard on the brief of argument of the appellant only as the respondents had failed to file the brief of argument. This which was also served on the respondents.

It was fixed for hearing on 28/9/2000 and on that day, the respondents did not appear in the court or file any counter-affidavit opposing the application, the motion was then argued and also granted. It is therefore only the appellant’s brief that is before the court.

The sole issue raised in the appellant’s brief is:- whether having regard to the evidence before the trial court, the award of exemplary damages at the sum of N20,000.00 is supportable? It can be seen from this sole issue for determination by the court that the appellants complaint is only about the quantum of damages. In the appellant’s brief, learned counsel for the appellant stated that the learned trial Judge’s award of the sum of N20,000.00 as exemplary damages for the unlawful detention of the appellant’s car for more than one year was derisory in view of the evidence and the circumstance of the case, that the appellant had claimed the sum of N500,000.00 as general and/or exemplary damages for the unlawful detention of his car by the respondent’s and that it was deposed to the fact that he was using the said Volkwagen car for his business, taxing. He referred to paragraphs 10, 11, 12 and 13 of their affidavit which were not challenged.

He submitted that since the award of damages falls within the discretionary jurisdiction of the learned trial Judge that he ought to have exercised the discretion taking into consideration the totality of the evidence before him, the legal principle regulating the award of damages and common sense and that the exercise of discretion must be judicial and judicious:

He referred to:-

Bendel Insurance Co. Plc v. BCM Finance and Securities Nig. Ltd. (1997) 8 NWLR (pt.518) 597 at 608 University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143 (1985) 1 SC. 265.

Adejumo v. Ayantegbe (1989) 3 NWLR (Pt.110-417).

He also argued that an exercise of discretion must never be capricious, illegal and/or arbitrary and that the award of N20,000.00 by the learned trial Judge when the appellant had claimed N500,000.00 is unfair, unjust and at best unreasonable in view of the evidence before him establishing the enormous injuries that the appellant had suffered from illegal, capricious injuries and unconstitutional conduct of the respondent.

He referred to:-