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:-
- 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).
- 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.
- The sum of N500,000.00 being General and/or exemplary damages for unlawful detention of the said Volkwagen.
- 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:-
Odogu v.Attorney General of the Federation (1996) 6 NWLR Pt.456) 508 at 511.
College of Education, Warri v. Odede (1999) 1 NWLR (pt.586) 253 at 256.
It was submitted that the amount awarded by the trial court as exemplary damages is manifestly too low and not based on proper exercise of discretion and that this court can interfere and increase the amount to correspond with substantial degree of injury suffered by the appellant for the unlawful seizure of the appellant’s car for more than 15 months.
It is settled law that the award of general damages as well as exemplary damages is a matter which is entirely at the discretion of the trial court and that this court will not interfere with such an award unless:-
(a) where the trial court acted under a mistake of law; or
(b) where it has acted in disregard of principles; or
(c) where it has acted under misapprehension of fact; or
(d) where it has taken into account irrelevant matters or failed to take into account relevant matters, or
(e) where injustice will result if the appeal court does not interfere;
(f) where the amount awarded is either ridiculously low or ridiculously high that it must have been a wholly erroneous estimate of the damage.
The appeal court is entitled to interfere with an award of damages made by a Judge where the circumstances calling for such an interference are shown to the appellate court see:-
UBA Ud. v. Odusote (1995) 9 NWLR (pt.421) 558, Ziks Press Ud. v. Ikoku (1951) 13 WACA 188, Nwobosi v. ACB Ltd (1995) 6 NWLR (Pt.404) 658, Obi Okuda v. I.G.P. & ors (1998) 1 NWLR (Pt.533) 336.
In Cyril Ojini v. Ogo Oluwa Motors Nig. Ltd. (1998) 1 NWLR (Pt.534) 353 of 362, Ogwuegbu, J.S.C. observed:
“An appellate court is not justified in substituting a figure of his own for that awarded by the lower court merely because it would have awarded a different figure if it had tried the case at first instance, before it can intervene, it must be satisfied either that the Judge, in assessing the damages applied a wrong principle of law such as taking into account some irrelevant factor or leaving out of account some relevant factor, or that the amount awarded is either so ridiculously low or so ridiculously high that it must have been a wholly erreneous estimate of the damage.
Wieidemann & Walters (Nig.) Ltd. v. Oluwa R: Intra Motors (Nig.) Ltd & Ors (1968) 1 All NLR 383.”
In the case of Odogu v. AG of the Federation (supra) referred to by the learned Counsel the appellant was arrested and detained for a period of 8 years without any justification. The trial court awarded the appellant the sum of N20,000.00 as general damages. On appeal to this court, the amount was increased to N75,000.00. Dissatisfied with the award of N75,000.00 he further appealed to the Supreme Court and there made a case for an award of exemplary damages but the Supreme Court refused to award the appellant exemplary damages because it was not claimed but increased the amount of general damages to N200,000.00.
In the instant case, the learned trial Judge ordered that “the respondent should pay N20,000.00 to the applicant being exemplary damages for unlaw full detention of the applicant’s Volkwagen for No.AG 195 CAL.”
In paragraphs 10, 11, 12, and 13 of the appellant’s further affidavit at page 16 of the records, he stated that the said Volkwagen car until it seizure by the police was being used as a taxi and that he makes an average sum of N1,000.00 a day, that the respondent has impounded the said vehicle for more than one year and that he has suffered enormous financial losses because of the capricious and arbitrary seizure of the said car by the respondent.
In the judgment of the learned trial Judge at page 29 of the records, he ordered the respondents to release the car to the appellant within 4 days of the delivery of the judgment and this clearly shows that the car was still being held by the respondents when the judgment was delivered on 4/5/98.
If all these facts and all the circumstances of this case are taken into account, it can undoubtedly be said that an award of the sum of N20,000.00 is very ridiculously low and that it is a wholly erroneous estimate of the damages and that this does not in any way meet the justice of the case, and that it is a proper case in which this court should intervene.
I must also observe that in making the award that it must be borne in mind that in Odugu’s case that the appellant was in police custody for 8 years and that it was the liberty of the subject that was involved and that the instant case is the seizure of a Volkwagen bettle car for more than one year.
Having considered all the circumstances of this case, I am of the view that an award of the sum of N100,000.00 ought to be made in favour of the appellant.
In the result, the appeal succeeds and is hereby allowed. The award of the sum of N20,000.00 made by the learned trial Judge is increased to the sum of N100,000.00.
There will be N3,000.00 costs in the appellant’s favour.
Other Citations: (2001)LCN/0946(CA)