First Bank Of Nigeria Plc & Ors V. Attorney-general Of The Federation & Ors (2018)
LAWGLOBAL HUB Lead Judgment Report
AMINA ADAMU AUGIE, J.S.C.
The Application for the enforcement of their fundamental rights filed by the Appellants at the Federal High Court, which led to this Appeal was triggered by a Petition written by the second Respondent to the third Respondent [Economic and Financial Crimes Commission (EFCC) against the first Appellant regarding a Bank Guarantee that it issued.
The Petition dated 5/7/2004, and addressed to “The Chairman, Economic and Financial Crimes Commission”, is headed as follows
FOR THE RECOVERY OF ADVANCE PAYMENT MADE BY GOVERNMENT TO CONTRACTORS THROUGH THEIR BANKERS/GUARANTORS REGARDING THE LOWER RIVER NIGER DREDGING CONTRACT: 1998/1999
The second to fifth Appellants were invited by the third Respondent to a Meeting at its office in Abuja; but things did not go down well, and they were subsequently detained at the Lugbe Police Station and Airport Police Station both in Abuja from 9/9/2004 to 10/9/2004.
Disgruntled by their detention under dehumanizing conditions, Appellants sought and were granted leave by
the Federal High Court to apply to enforce their fundamental rights, and pursuant thereto, they filed a Motion on Notice where they prayed for the following
- A DECLARATION that the claim of the 2nd Respondent to a refund of the sum of N600 Million for an alleged non-performance by Julius Berger Nig. Plc. and Westminster Dredging and Marine Ltd., of a contract for the dredging of the lower River Niger under an Advance Payment Guarantee issued by the 1st Applicant in spite of disputed claims of Julius Berger Nigeria Plc. and Nigerian Westminster Dredging and Marine Ltd., against the 2nd Respondent is a dispute referable to the civil Court only in accordance with the Constitution.
- A DECLARATION that the 2nd Respondent having returned the Advance Payment Guarantee issued by the 1st Applicant is no more entitled to ask the 1st Applicant to refund any money.
- A DECLARATION that the dispute as to who is owing as between the 2nd Respondent and Julius Berger Nigeria Plc. and Nigerian Westminster Dredging and Marine Ltd., is a civil and not a criminal matter.
- A DECLARATION that the 3rd5th Respondents have
no jurisdiction to arrest or detain the 2nd 5th Applicants over a contractual matter or at all.
- A DECLARATION that the arrest and detention of 2nd-5th Applicants between 9th September and 10th September 2004 at Lugbe Police Station and the Airport Police Station, Abuja, by the 3rd 5th Respondents at the instance of the 2nd Respondent constitutes a violation of the 3rd 5th Respondents’ fundamental rights guaranteed under Sections 34, 35 and 41 of the 1999 Constitution and Articles 1, 4, 5, 6 and 12 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap. 10 Laws of the Federation of Nigeria, 1990 and is, therefore, illegal and unconstitutional.
- A DECLARATION that the action of the 3rd 5th Respondents forcing the 2nd Applicant to issue an undertaking to pay the sum of N600 Million within a month as a condition for bail of the 2nd 5th Applicants after detaining them for two days is unknown to law, unconstitutional, null and void.
- AN ORDER setting aside the undertaking extracted forcefully and under duress from the 2nd Applicant on
10/9/2004 by the 3rd 5th Respondents as a condition for bail of the 2nd 5th Applicants for being unknown to law, unconstitutional, irregular, null and void.
- AN ORDER of injunction restraining Respondents either by themselves, their agent, privies, assigns or anybody howsoever described from further arresting, detaining, harassing or molesting the Applicants over the contractual transaction between the 2nd Respondent and the 1st Applicant’s customers or enforcing the undertaking issued by the 2nd Applicant or demanding or further demanding from the 1st Applicant.
- Aggravated and exemplary damages against the Respondents jointly and or severally in favour of each of the Applicants as claimed in the Statement of Facts attached to this Application.
Upon being served, the second Respondent entered a CONDITIONAL Appearance and also filed a Notice of Preliminary Objection praying that the action be struck out on the ground that it does not disclose a cause of action against it. In his Judgment delivered on 29/8/2005, the learned trial Judge, B. F. M. Nyako, J., treated the Preliminary Objection as the second Respondent’s defence, and held as follows
I must find that the claim has not been established against the 2nd Respondent and the claims against him (sic) are not proved. He (sic) is struck out.
As to the main Application itself, the learned trial Judge struck out the Appellant’s Claims 1 to 3 and 6 to 8, and concluded as follows –
On Claims 4 and 5, l finds that the 3 5 (sic) have the power to arrest and investigate Contract Scam and as the arrest has not been shown to be unconstitutional, the 4 and 5 Claims of the Applicants fail and the action is accordingly dismissed.
Dissatisfied, the Respondents appealed to the Court of Appeal and in allowing the Appeal “save for relief 2”, the Court of Appeal held thus-
The issue at stake was in respect of an alleged breach of contract namely, Advance Payment Guarantee and recovery of the said sum of N2.034 billion plus the accrued interest. – – – Even though the 3rd 5th Respondents in paragraph 1 of their joint Counter-Affidavit stated that investigations revealed violations of EFCC legislation, none of such violation was mentioned. In fact, throughout the gamut of the depositions in the Counter-Affidavit of the 3rd 5th
Respondents before the lower Court and submission of learned counsel to the Respondents here before us, there was nowhere the section of the EFCC Act that was impugned that warranted the arrest of the Appellants was mentioned.
– – I do not perceive any such violation of the Act. It is not in doubt as rightly held by the trial Judge at page 204 of the Record that: –
“By the EFCC Act they have power to investigate Contract scam –
– and to investigate any Offence under the EFCC Act.”
However, the Respondents totally failed to prove there was any such contract scam to justify the arrest and detention of the Appellants. The Respondents merely paraded the case like that of contract scam without making any reference whatsoever to the violation of any law. Rather, from all the facts before the Court, the mission of the 3rd 5th Respondents was to recover the said sum of N2.034 Billion being the alleged breach of Advance Payment Guarantee — This led to the extraction from the Appellants by the Respondents of an undertaking to pay N600 Million, which was subject to their release from detention. Recovery of debts is
definitely not the mandate of 3rd 5th Respondents as there is no such provision in the EFCC ACT. The arrest and detention of the Appellants are therefore totally unjustifiable. It is wrongful and unconstitutional. 3rd 5th Respondents are liable for the unlawful arrest and detention of the Appellants.
The Court of Appeal then awarded damages against the Respondents “jointly and severally in the sum of N750, 000.00 in favour of the 2nd 4th Appellants”; it omitted the fifth Appellant’s name for damages; refused to award damages to first Appellant; and refused to award aggravated and exemplary damages also claimed by the Appellants.
Dissatisfied with this part of the Court of Appeal’s Judgment, the Appellants appealed to this Court with a Notice of Appeal that contains four Grounds of Appeal. The first Respondent filed a Notice of Preliminary Objection to the competency of Ground 1 of the said Grounds of Appeal, and the Grounds of the said Objection are that –
- Ground 1 is not covered by, and/or did not emanate from the decision being challenged.
- Appeal is fought on the basis of the decision of the lower Court and is not taken against an obiter.
The second set of Respondents, that is the third to fifth Respondents, also filed a Notice of Preliminary Objection to Grounds 1, 2, 3 and 4 of the Grounds of Appeal. The Grounds of the Objection are that
(1) Ground One of the Appellants’ Notice of Appeal dated 7/5/2013 and filed same date does not constitute a challenge to the Judgment of the lower Court delivered on 7/2/2014.
(2) The particular of Grounds Two, Three and Four of the Notice of Appeal dated 7/5/2014 and filed on same date are issues of mixed law and facts.
(3) Grounds Two, three and Four of the Notice of Appeal dated 7/5/2014 and filed on the same date fall within Section 233(3) of the 1999 Constitution which states: “Subject to the provisions of subsection (2) of this Section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.”
(4) The statutory requirement of leave of the lower Court or this Hon. Court is mandatory in respect of the Appellants’ Grounds of Appeal which are of mixed and facts.
(5) The Appellant failed to obtain the leave of the lower
Court or that of this Court before filing the Notice of Appeal
(6) This Court has no jurisdiction to entertain Ground Two, Three and Four of the Appellants’ Notice of Appeal for failure on the part of Appellants to seek leave in view of the provisions of Section 233(3) of the 1999 Constitution (as amended).
Now, a ground of appeal consists of error of law or fact alleged by an Appellant as the defect in the Judgment appealed against, which he relies on to set it aside -FMBN V. NDIC (1999) 2 NWLR (Pt. 591) 333. In this case, the Appellants appealed against the following part of the Judgment of the Court of Appeal, wherein it observed as follows –
For a Party to be entitled to exemplary damages, it is his duty to prove that the action of Respondent is outrageously reprehensible, which has not been proved in this case. However, the Appellants are entitled to damages for their unlawful arrest and detention. By virtue of Section 16 of the Court of Appeal Act, the Court of Appeal is empowered to exercise the powers and functions of the lower Court, which includes award of damages. In the circumstances, I hereby invoke the said power and
award damages against the Respondents jointly and severally in the sum of N750, 000. 00 in favour of the 2nd 4th Appellants, who were unlawfully arrested and detained. The 1st Appellant, being a bank is an artificial person, who cannot physically be arrested and detained.
In Ground 1 of the Grounds of Appeal, which is being challenged by the two sets of Respondents, the Appellants complained as follows –
The learned Justices of the Court of Appeal erred in law when their Lordships held that the 1st Appellant was not entitled to damages because the 1st Appellant being an artificial person cannot be physically arrested or detained.
It is also settled that just as Statements of Claim supersede Writs of Summons, issues for determination also displace grounds of appeal – Macaulay V. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283.
In this case, the Respondents jumbled up Issues relating to their Objections with Issues for Determination in the substantive Appeal, which is wrong, because a determination of a Preliminary Objection is not a hearing of the Appeal, which can only be considered based on Issues
for Determination distilled from the Grounds of Appeal – see Odunze & Ors. V. Nwosu & Ors (2007) 13 NWLR (Pt. 1050) 1 SC, wherein Chukwuma-Eneh, JSC, explained the difference, as follows
Issue for Determination and Preliminary Objection under our Rules do not have common meeting ground. How to initiate an objection against an appeal is fully covered in the Rules. Preliminary Objection runs counter to the intendment of Issues for Determination in the Claims before the Courts in the sense that it aborts, indeed forecloses the hearing of the case in limine and if upheld terminates the case; it automatically puts an end to the case without determining the rights of the Parties thereto, while Issue for Determination presupposes that the case is, all things being equal, on course for hearing. An Issue for Determination is a combination of facts and the law on a particular point, which when decided, affects the fate of the Appeal – – It must relate to the Grounds of Appeal – – The two are, more or less, strange bed fellows; and so, for a Preliminary Objection to be dressed in the garb given to it here is strange and improper.
In this case, contrary to this laid down principle, the first Respondent formulated three Issues for Determination and its Issue 1 questions
Whether Ground 1 contained in the Appellants’ Notice of Appeal should be struck out for being incompetent.
The second set formulated four Issues for Determination; that is two Issues for their Preliminary Objection and two Issues for the Appeal.
The second set of Respondents’ Issue 1, which raises a question regarding their Objection to Ground 1 of the Grounds of Appeal, is –
Whether Ground One of the Applicants’ Notice of Appeal is competent having regard to the fact that the said Ground is neither part of, nor emanate from, the Judgment delivered by the lower Court on 7/2/2013 as set out in pages 346-394 of the record and whether same is not liable to be struck out by this Hon. Court.
It is the contention of the two sets of Respondents that Ground 1 of the Appellants’ Grounds of Appeal is not borne out of the Judgment of the Court of Appeal, so it is incompetent and must be struck out.
The first Respondent submitted that ground(s) of appeal must be direct and must constitute a challenge to the ratio
decidendi of a decision appealed against, and that the ground(s) of appeal not arising from a decision appealed against would be discountenanced. They referred this Court to the following authorities on the subject –
Praying Band of C & S v. Udokwu (1991) 3 NWLR (Pt. 182) 716;
Niger Construction V. Okugbeni (1987) 4 NWLR (Pt. 67) 787;
Adegoroye V. Ajayi AKA Little by Little (2003) FWLR (Pt. 171) 1591; Dongtoe V. C. S. C. Plateau State (2001) 19 WRN 125;
Chiorlu & Ors. V. Akani & Ors. (2001) FWLR (Pt.71) 1781 at 1788;
Mercantile Bank & Anor. V. Nwobodo (2005) 7 S.0 (Pt. 111) 1;
Iloabachie V. Iloabachie (2000) 5 NWLR (Pt. 626) 194 at 203; and
MILAD, Akwa Ibom State & Ors. V. Obong (2001) FWLR (Pt. 60) 1456.
Furthermore, that Appellants overlooked the law that a valid appeal must attack rationes decidendi; not obiter dicta -NDIC V. Okem Ent. (2004) 10 NWLR (Pt. 880) 107, State V. Ogbubunjo (2001) 2 NWLR (Pt. 698) 576; and that Appellants’ contention will not suffice as an issue in controversy in Judgment that can lend itself as a valid ground of appeal – Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228 SC.
The second set of Respondents submitted that the Ground 1 is a strange clause that “dramatically and entirely alters the character as well as interpretation of that aspect and bearing of the Judgment”; that Appellants surreptitiously attempted to distort same to favour their position in this Appeal and prejudice the mind of this Court; and that it is unconscionable on their part to attempt to import into the Judgment what is not contained therein and to premise their Appeal on a ground which does not form part of the lower Court’s decision, all in an attempt to influence the mind of this Court in their favour.
Furthermore, that a ground of appeal and issue flowing therefrom must embody a resolution of the issue, not the opinion of the Judge -Onafowokan V. Wema Bank (2011) 12 NWLR (Pt. 1260) 4, CCB V. Ekperi (2007) 3 NWLR (Pt. 1022) 493, Osuji V. Ekeocha (2009) 16 NWLR (Pt.1166) 81; and that an incompetent issue distilled from an incompetent Ground of Appeal is incompetent by virtue of its origin – Olonade V. Sowemimo (2014) 5 S.0 (Pt. 11) 97.
They further argued that the ratio of the lower Court’s decision, which Appellants doctored to constitute
Ground 1, cannot constitute a valid Ground of Appeal; that if there is anything that Courts detest with a passion, it is quoting the dictum or the pronouncements of the Justices out of the con in which those words are explored -Adewale V. Adegoke (1989) 3 NWLR (Pt. 109) 250; and that it is ridiculous for the Appellants in this case to formulate a ground of appeal contrary to the express decision arrived at by the lower Court.
The Appellants filed Reply Briefs to both Respondents’ Briefs. They argued that the Court below only said that though they were all entitled to damages, it is not awarding damages to first Appellant because it is an artificial person, who cannot be physically arrested, therefore, they did not import, add to, subtract from or deduce the said Ground 1 from obiter dicta as alleged by first Respondent; or surreptitiously attempt to distort, craftily allege or deduce Ground 1 from obiter dicta as alleged also by the third to fifth Respondents; that in framing Grounds of Appeal, a party need not quote verbatim from a Judgment – Ports & Cargo Holding Services Co. Ltd. V. Migfo Nig. Ltd. (2013) 3
NWLR (Pt. 1333) 555, llori V. Tella (2006) 18 NWLR (Pt. 1011) 267; and that cases cited by Respondents are irrelevant.
They also argued that it is settled that a ground of appeal can emanate from omission of a Court refusing to do what it ought to do, and since this is an omission of the Court below, refusing to do what it ought to do, they are permitted to appeal on same to this Court – Azubuike V. Diamond Bank Plc. (2014) 3 NWLR (Pt. 1393) 116.
They cited Akpan V. Bob & 4 Ors. (2010) 4-7 SC (Pt. 11) 57, Ekikeme V. Amaechi (1998) 3 NWLR (Pt. 542) 469, and submitted that a Ground of Appeal directed against an omission, relates to the Court’s Judgment and constitutes a good and valid ground of appeal; that in holding as it did, the Court of Appeal was approbating and reprobating at the same time; and that it is trite that a Court cannot approbate and reprobate – FRN V. Iweka (2011) 11-12 SC (Pt. 1) 109.
There it is; arguments for and against the Objection raised by the Respondents to Ground 1 of the Appellants’ Grounds of Appeal. As it stands, the two sets of Respondents stated the correct position of the law on the significance of
Ground(s) of Appeal to an Appeal.
However, I strongly feel that their Objection to the said Ground is not only ill-thought-out and unmeritorious; it is also an attempt to filibuster the Appeal, so to speak, and waste the time of this Court.
An Appeal is an invitation to a higher Court to review a decision of a lower Court, and grounds of appeal are basically highlights of the error of law or fact or mixed law and fact made by the lower Court in the decision sought to be set aside on appeal. So, a ground of appeal must be related to the decision of the lower Court, and must contain complaints that the Appellant relies upon to succeed in setting aside the ratio decidendi of the Judgment, and not just observations and any passing remarks of a Judge in the course of writing a Judgment see Nwankwo V. E.D.C.S.U.A (2007) 5 NWLR (Pt. 1027) 377 SC, N.D.I.C. V. Okem Ent. Ltd. (supra) and A.I.C. Ltd. V. NNPC (2005) 1 NWLR (Pt. 973) 563 SC, where Edozie, JSC, explained as follows
The ratio decidendi of a case represents the reasoning or principle or ground upon which a case is decided. Obiter simply means in passing, incidental, cursory.
Obiter dicta reflect, inter alia, the opinions of the Judge, which do not embody the resolution of the Court. The expression of the Judge in a Judgment must be taken with reference to the facts of the case, which he is deciding, the issues calling for decision and answers to those issues. These are what should be looked for in a Judgment. The manner in which the Judge chooses to argue the case is not an important thing. Rather it is the principle he is deciding- -.
In this case, the Respondents argued that the Court of Appeal did not pronounce that first Appellant is not entitled to damages, therefore, the Ground 1 of the Appellants’ Grounds of Appeal is incompetent.
However, as this Court noted in Akpan V. Bob (supra), although authorities emphasize that a ground of appeal must stem from a of the Judgment [ipsissima verbal, such decisions in no way limit the scope of a ground of appeal, which can arise “from commissions or omissions by the Court from which an appeal emanates, in either refusing to do or doing what it ought to do or doing what it ought not to do or even in overdoing the act complained of”. Muhammad, JSC, hit the nail squarely on the head when he further stated as follows –
The ideal thing is to have a pronouncement from the Court from which the appeal emanates.
In this case, the Court of Appeal may not have expressly said that the first Appellant is not entitled to damages, but that is the import of its decision whereby it refused to award damages to the first Appellant.
The Appellants claimed “aggravated and exemplary damages”, and for ease of reference, I will repeat what Court of Appeal said i.e.
For a Party to be entitled to exemplary damages, it is his duty to prove that the action of Respondent is outrageously reprehensible, which has not been proved in this case. However, the Appellants are entitled to damages for their unlawful arrest and detention. By virtue of Section 16 of the Court of Appeal Act, the Court of Appeal is empowered to exercise the powers and functions of the lower Court, which includes the award of damages. I hereby invoke the said power and award damages against the Respondents jointly and severally in the sum of N750, 000.00 in favour of the 2nd – 4th Appellants, who were unlawfully arrested and detained. The 1st Appellant,
being a bank is an artificial person, who cannot physically be arrested and detained.
In clear terms, the Court of Appeal held that although Appellants are not entitled to exemplary damages because they did not prove same, they were “entitled to damages” for unlawful arrest and detention, and awarded damages to the second, third and fourth Respondents [its omission of the fifth Respondent is an issue for the main Appeal].
The word “entitled” means “to give (a person or thing) a title, right or claim to something; furnish with grounds for laying claim” see dictionary. com. In this case, the Court of Appeal did not award damages to the first Appellant for the reason that being a bank “it is an artificial person, who cannot physically be arrested or detained”.
What does that say It says clearly that the first Appellant is not “entitled” to damages as it cannot be physically arrested or detained, and the complaint in the said Ground 1 of the Grounds of Appeal is
The learned Justices of the Court of Appeal erred in law when their Lordships held that the 1st Appellant was not entitled to damages because the 1st Appellant
being an artificial person cannot be physically arrested or detained.
Obviously, the Appellants are right; the said Ground 1 flows directly from the decision appealed against and the Objections are overruled.
The second set of Respondents’ Issue 2 questions whether the Appellants do not require leave of Court to raise Grounds 2, 3 and 4 of their Grounds of Appeal, which contain the following complaints
The learned Justices of the Court of Appeal erred in law when it awarded just N750, 000.00 as general damages in favour of the 2nd 4th Appellants.
The learned Justices of the Court of Appeal erred in law when it omitted to award general damages in favour of the 5th Appellant.
The learned Justices of the Court of Appeal erred in law when it declined to award aggravated and exemplary damages against the 3rd 5th Respondents for the unlawful arrest and detention of the Appellants and held that their action was executive exuberance and for a Party to be entitled to exemplary damages the action of the Respondents must be outrageously reprehensible.
They contend that the Grounds of Appeal are of mixed law and facts, therefore, the Appellants require leave of the Court to raise them, pursuant to Section 233 (3) of the 1999 Constitution (as amended). Citing NNSC. v. E.S.V. (1990) 7 NWLR (Pt. 164) 526, Oluwole v. L.S.D.P.C. (1983) 14 NSCC 179 & Metal Const. (W.A) Ltd. V. Migliore (1990) 1 NWLR (Pt. 126) 299, they submitted that the award of damages is discretionary based on the proven facts before the Court; and where leave is not obtained, a Notice of Appeal is incompetent and should be struck out G.E.C. V. Akande (2010) SC (Pt. IV) 75.
They argued that Particulars of Errors (ii) and (iv) of Ground 2 disclose questions of mixed law and facts; that Particulars of Error (ii) of Ground 3 constitutes mixed law and fact; that Particulars of Error (iii) of Ground 4 is a direct attack against the findings of the Court of Appeal that Respondents’ conduct was not oppressive, arbitrary and unconstitutional and the Appellants failed to prove the contrary; and that the award of exemplary or aggravated damages that constitutes Particulars (v) & (vi) of Ground 4, is an issue of law mixed with facts.
The Appellants argued in their Reply Brief that the said Grounds are not of mixed law and facts because they constitute a challenge to a decision of the lower Court as to breach of Chapter IV of the 1999 Constitution (as amended) and leave of this Court is not required, which is in line with Section 233 (2) (c) of the Constitution that says –
- An Appeal, shall lie from the decisions of the Court of Appeal to the Supreme Court as of right in the following cases:
(c) Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person.
They submitted that the word “shall” is mandatory; that “as of right” means a Party does not need the leave; “decisions” means a decision or Judgment or recommendation of the Court, thus, once there is a decision that deals with Chapter IV of the Constitution, whether it is mixed law or facts, exercise of discretion, award of damages, a Party can appeal without leave – Onochie V. Odogwu (2006) 6 NWLR (Pt. 975) 65, CPC V. INEC (2012) 13 NWLR (Pt. 1317) 260,
Ilechukwu V. lwugo (1989) 2 NWLR (Pt. 101) 99, 105, Jim-Jaja V. COP, Rivers State (2013) 6 NWLR (pt. 1350) 225, Ashiru V. Ayoade (2006) 6 NWLR (Pt. 976) 422 and Ifeajuna V. Ifeajuna (1999) 1 NWLR (Pt. 587) 492 cited.
Furthermore, that having found that Appellants, including fifth Appellant, were unlawfully arrested and detained, the Court below ought to have awarded them damages, therefore, it misunderstood the law or misapplied the law to prove or admitted facts – Jim-Jaja V. COP, Rivers State (supra), which makes Ground 3 a ground of law.
They also argued that assuming without conceding that the said Grounds are of mixed law and facts and leave of Court is required, they are not foreclosed from seeking leave to raise and argue them nor from amending their brief merely because the third to fifth Respondents have filed a Preliminary objection and the amendment is to correct the error thereof, citing South Atlantic Petroleum Ltd. V. Minister of Petroleum Resources (2014) 14 NWLR (Pt. 1396) 24 at 41-42, 44, Salisu V. Mobolaji (2014) 4 NWLR (Pt. 1396) 1 at 17-18, and Nalsa & Team Associates V. NNPC (1991) 8 NWLR (Pt. 212) 652.
The position of the law on this Issue is basically cut and dried; to determine whether a ground of appeal is a ground of law or fact requires examining it in terms of its Particulars so as to determine the nature of the question the ground raised is complaining about see Garuba V. Omokhodion (2011) 6-7 SC (Pt. V) 89. The fact that a ground of appeal is described as one of fact or of law will not stop a Court from looking into whether it is actually one of law or of mixed law and fact or of facts see Ejiwunmi V. Costain (W.A) Plc. (1988) 12 NWLR (Pt. 576) 146, Olojoun V. Ozima (1985) 2 NWLR (Pt. 6) 167.
What is more, where a party intends to raise issues of mixed law and fact, leave of Court must be first sought for and obtained see Garuba V. Omokhodion (supra), where Rhodes-Vivour, JSC, said –
Leave means permission. Before an appeal on ground of mixed fact and law or on facts can be entertained by this Hon. Court, the Applicant must first seek and obtain leave from the Court of Appeal or this Court. Failure to obtain leave renders the appeal incompetent and it will be thrown out.
In this case, the second set of Respondents say that
Grounds 2 and 3 of the said Grounds of Appeal involve mixed law and facts because –
Where a Court of law is invited to exercise its discretion by an Appellant, such Appellant is only asking the Court to examine the matter through its own peculiar circumstances by what are the facts disclosed in the Affidavit to arrive at this discretion, thus, it is incumbent of the Appellant to make sure that the leave of the Court is first sought and obtained.
In Metal Const. (W.A) Ltd. V. Migliore (supra) cited by Respondents, which dealt with the issue of service, Karibi-Whyte, JSC, observed
If a Judge considers matters, which are not before him, and relies on them for the exercise of his discretion, he will be exercising his discretion on wrong principles and this will be a question of law —
The chief objective for the exercise of discretion is to avoid injustice to the Party, who would be prejudiced from the effect of the irregular decision – – There is no doubt, therefore, that the question involved in such a ground of appeal is not only one of law, but an issue of law coupled with the exercise of discretion. There is
the question of law in the observance of the judicial principles to be followed in setting aside of own decision, and the exercise of discretion in the factors to be taken into account and what weight to attach to the length and circumstances of delay in considering the application to set aside the decision – – There is no doubt that length of delay is a question of fact. But the reasonableness in presenting the application to set aside the decision is a matter of opinion in the light of other circumstances surrounding the Application.
In this case, which deals with the enforcement of fundamental rights, it is clear that the second set of Respondents did not fully grasp the core element of this Appeal against the decision of the Court below. Section 35 (6) of the 1999 Constitution (as amended) provides that
Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person; and in this subsection, “the appropriate authority or person” means an authority or person specified by law.
As this Court aptly observed in Jim-Jaja V. COP, Rivers State (supra), fundamental rights matters are placed
on a higher pedestal than the ordinary civil matters in which a claim for damages resulting from a proven injury has to be made specifically and proved. In that case, Jim-Jaja v. C.O.P (supra), Muntaka-Coomassie, JSC, had this to say –
The Appellants claim is in connection with the breach of his fundamental rights to his liberty by the Respondents. The onus is on him to show that he was unlawfully arrested and detained i.e. that his fundamental right has been violated. If this is proved, by virtue of the provisions of Section 35(6) of the Constitution, the complainant is entitled to compensation and apology, where no specific amount is claimed. Where a specific amount is claimed, it is for the Court to consider the claim and in its opinion, the amount that would be justified to compensate the victim of the breach. In this respect, the common law principles on the award of damages do not apply to matters brought under the enforcement of fundamental rights procedure The procedure for the enforcement of the Fundamental Human Rights was specifically promulgated to protect the Nigerians’ fundamental
rights from abuse and violation by authorities and persons. When a breach of the right is proved, the victim is entitled to compensation, even if no specific amount is claimed.
In Jim-Jaja’s case (supra), this Court overruled a similar objection by the Respondents to the Ground of Appeal; Ogunbiyi, JSC, observed –
With the nature of the claim subject of Appeal seeking enforcement of Fundamental Rights, the appeal lies as of right and hence the question of mixed law and facts are not applicable. The said Ground of Appeal is a ground of law and which needed no prior leave to raise same.
In this case, the Court below found that the arrest and detention of the Appellants were “unjustifiable”, “wrongful and unconstitutional”, and the Appellants’ complaint in Ground 2 of the Grounds of Appeal is that the sum awarded as damages by the Court below in favour of three of the Appellants is too low in the circumstances of this case.
They also complained in Grounds 3 and 4 that the Court below “erred in law” when it omitted to award damages to fifth Appellant, who had also been arrested and detained with the other Appellants; and when it refused their claim for aggravated/exemplary damages.
These Grounds of Appeal cannot be viewed in the same light as grounds of appeal in ordinary civil matters because the Constitution has elevated the enforcement of fundamental rights to another level. What is more, by Section 233 (1) (c) of the Constitution, any appeal against a decision of the Court of Appeal that touches on a question of whether any of the provisions of Chapter IV of the Constitution, dealing with Fundamental Rights, has been, is being or is likely to be, contravened in relation to any person, lies “as of right” to this Court.
Thus, under whatever light the depiction is looked at; whether the Appeal is as of right or whether the grounds of appeal are of law and not mixed law and facts, this Objection must fall by the wayside as the other Objection to Ground 1. This Objection is also overruled.
The coast is now cleared for the substantive Appeal wherein the Appellants formulated the following Issues for Determination –
- Whether or not the learned Justice of the Court of Appeal were wrong when they held that the 1st Appellant being a bank is an artificial person who cannot physically be arrested and detained and
consequently was not entitled to damages.
- Whether or not the Learned Justice of the Court of Appeal were wrong when they awarded just N750, 000.00 as general damages in favour of the 2nd 4th Appellants having regard to the pleadings and evidence before the lower Court.
- Whether or not the Learned Justices of the Court of Appeal were wrong when they omitted and/or declined to award damages to 5th Appellant thereby occasioning a miscarriage of justice.
- Whether or not the Learned Justices of the Court of Appeal were wrong when they held that the Appellants were not entitled to exemplary damages.
The Issues formulated by the first Respondent for this Appeal are
(2) Whether, in the circumstance of this case, the amount of damages awarded by the lower Court ought to be reviewed upward
(3) Whether, having held that the Respondents acted out of the misapprehension of the facts to the effect that there was a contract scam, the Court of Appeal was right in refusing to award exemplary and aggravated damages in favour of the Appellants on the basis of the evidence on record
The two Issues formulated by the second set of Respondents are
(iii) Having regards to the relevant circumstances of this case, whether the amount of damages awarded by the lower Court ought to be reviewed upward or in favour of the 5th Appellant.
(iv) Whether, having found that the Respondents acted out of misapprehension of facts that there was a contract scam, the Court of Appeal was right in refusing to award exemplary and aggravated damages in favour of Appellants on the basis of evidence on record
Seeing as the Respondents did not formulate any Issue from the said Ground 1 of the Grounds of Appeal, which they had objected to, and which Objection was overruled, I will adopt the Appellants’ Issues in dealing with the substantive Appeal since they cover all the angles.
Issue 1 distilled from the said Ground 1 is about first Appellant. The Appellants’ submitted that an artificial person is a persona-ficta (juristic personality) known to law, who can only act through agents or servants that are human beings, and when its agents, servants or officers are arrested and detained, it is also arrested and detained, and the direct
consequence is loss of reputation and financial loss.
Furthermore, that by virtue of Section 46(1) of the Constitution (as amended) read with Section 18 of the Interpretation Act, Cap 123 LFN 2004, Fundamental Rights enure to Natural and Artificial persons- Onyekwuluje V. Benue State Govt. (2005) 8 NWLR (Pt. 928) 614; that since the second to fifth Appellants are key chief officers of the first Appellant, the natural implication of their incarceration was financial loss and loss of reputation to the Bank in Millions of Naira; that their personal liberty is a commodity of high value to it as they are its directing minds as first Appellant acts mainly through them – Odogu V. A-G Federation (1996) 6 NWLR (Pt. 456) 508; therefore, such damages commensurate to their status should be awarded to it.
As it stands, the question that rears its head is whether a Bank, the first Appellant, can be physically arrested and detained by EFCC The Appellants argued that it can be arrested and detained by proxy; that is since second to fifth Respondents, who are key chief officers of the Bank, were arrested and detained, the Bank was also affected.
They contend that the implication of the incarceration of its key chief officers “was financial loss and loss of reputation” to the Bank. This line of argument, obviously, lacks merit. The first Appellant has every right to seek redress for “financial loss and loss of reputation”, occasioned by the arrest and detention of its said key chief officers; but it cannot do so through the procedure provided by law under the Fundamental Human Rights [Enforcement Procedure] Rules 1979; the applicable Rules in this matter, and not the present 2009 Rules.
So, any claims touching on violation of rights to personal liberty guaranteed by the Constitution, are usually made before the Courts under Fundamental Human Rights [Enforcement Procedure] Rules, enacted specifically to govern or regulate actions for enforcement or the protection of fundamental rights guaranteed by the Constitution – Jack V. University of Agriculture, Makurdi (2004) LPELR-1587(SC).
In this case, it is physically impossible for the first Appellant to be arrested and detained, and the Court of Appeal was standing on very firm ground when it refused to award
damages to first Appellant for the unlawful arrest and detention of second to fifth Appellants. Issue 1 definitely lacks merit and it is resolved against the Appellants.
Issue 2 raises the question of whether the amount of damages awarded ought to be reviewed upwards, as both Respondents put it. At this juncture, it is necessary to sort out the status of Cross-Appeals referred to by the two sets of Respondents in their respective Briefs. The first Respondent clearly stated as follows at page 6 of its Brief
The 1st Respondent has also filed a Notice of Cross-Appeal in challenge of some aspects or parts of the decision of the lower Court. These aspects will be fully addressed in the ensuing brief of argument.
It did not file any Cross-Appellant’s Brief; it made no mention of the Cross-Appeal at the hearing of the Appeal; and never fully addressed any issues arising there-from in its Brief but made comments like
The lower Court held that the arrest and detention of the Appellants was unjustifiable. The holding, in itself, is a subject matter of Cross-Appeal.
It also stated as follows in its conclusions at page 16 of the Brief
(a) In view of the 1st Respondent’s Cross-Appeal, the complaints of the Appellants are not maintainable.
The second set of Respondents only filed 3rd -5th Respondents brief of Argument; they made no mention of a cross-appeal in the brief or at the hearing of the Appeal. However, they faulted the decision of the Court of Appeal in the brief. The Appellants, in their Reply Brief, referred the Court to the Notice of Cross-Appeal attached to their pending Motion for leave to cross appeal and submitted that they “smuggled in arguments regarding misapprehension of facts” which, is in breach of Order 6 rule 6 (2) of this Court’s Rules that provides –
Arguments in respect of a Cross-Appeal or in respect of a Respondent’s Notice may be included by any Party in his brief of the original appeal without special application. Such an inclusive brief shall clearly state that it is filed in respect of both the original appeal and Cross Appeal or Respondent’s Notice.
I went through the main Court File, and discovered that the two sets of Respondents filed Applications for extension of time within which to cross-appeal against the Judgment of the Court of Appeal, etc.
The first Appellant’s Motion on Notice was filed on 14/7/2014, the Motion of the third to fifth Respondents was filed on 24/9/2013
However, there is no indication that the Applications had been granted or that the Respondents filed their Notices of Cross Appeal. Be that as it may, even if the Notices of Cross Appeals had been filed, it is settled that an Appeal and a Cross Appeal are separate Appeals, therefore, the two sets of Respondents had to comply with Order 6 Rule 6 (2) of the Rules of this Court by stating clearly that the Briefs they filed in this Appeal covered both the Appeal and Cross Appeal.
In this situation, where the Respondents did not file a separate Cross-Appellants’ Briefs and did not state in their Respondents’ Briefs that the brief they filed is in respect of the Appeal and Cross-Appeal, it goes without saying that arguments touching on the Cross-Appeal will be discountenanced, and this Judgment is purely for the Appeal.
As I noted, Issue 2 deals with the amount of damages awarded. Relying on Odogu V. A-G., Fed. (1996) 6 NWLR (Pt. 1350) 225, Onwu V. Nka (1996) 7 NWLR (Pt. 458) 19,
Eliochin (Nig.) Ltd. V. Mbadiwe (1986) 9 NWLR (Pt. 14) 65, A.C.B. V. Apugo (1995) 6 NWLR (Pt. 399) 89 & U.B.N. Ltd. V. Odusote Bookstores Ltd. (1995) NWLR (421) 586, the Appellants submitted that the third Respondent is “notorious for arbitrary abuse of power during the tenure of fourth Respondent”, and that this was gross violation of the human rights of key Chief Officers of one of the top banks over a purely civil matter, thus, the compensation should reflect not only the pecuniary loss but the abhorrence of the society and the law – Nobody is above the law!
Furthermore, that the amount awarded to be shared between the three Appellants, N250, 000 each, is too low; that the psychological impact, traumatic impact, financial loss, loss of reputation, wrongful deprivation of their liberty, and their status at the Bank were not taken into consideration by the Court below; and that it is important for our Courts to keep up with the times and present reality of today, and keep up with the depreciating value of the Naira vis-a-vis other currencies, as stated by Justice Iguh, JSC in Onwu V. Nka (supra).
The first Respondent submitted that the principle remains
that an appellate Court ought not to upset an award of damages merely because if it had tried the matter, it would have awarded a higher or lesser amount S.D.P.C. V. Tiebo VII (1996) 4 NWLR (Pt. 445) 657: Ezekwe V. Omomewo (1958) SCNLR 13; A. P. Ltd. V. Ciroma (1996) 1 NWLR (Pt. 43) 156; James V. Mid-Motors (1978) 11-12 SC 31; Zik’s Press V. Alvan Ikoku (1951) 13 WACA 188; Williams V. Daily Times (1990) 1 NWLR (pt. 124) 1 and Onaga V. Micho (1961) SCNLR 101.
It argued that the Court below also found that the Respondents were not reckless but acted out of suspicion or misunderstanding that there was a contract scam, which does not show that it acted on some wrong principle of law; rather the potency is backed by law – Flint v. Lovell (1935) 1 K.B. 354; Ojini V. Ogo Oluwa Motors Nig. Ltd. (1988) 1-2 SC [citation supplied by Appellants in their Reply Brief].
Furthermore, that Appellants were detained on 9/9/2004 but were promptly released on 10/9/2004 when their sureties eventually showed up; that to justify a reversal, this Court should be satisfied that the lower Court acted on a wrong
principle or made an entirely erroneous estimate of the damages – Sabru Motors Ltd. V. Rajab Ent. Ltd. (2002) 7 NWLR (Pt. 766) 243; that this case falls within the exception to the general guarantee of the right to personal liberty – Abia State University V. Anyaibe (1996) 3 NWLR (Pt. 439) 646; and the facts do not justify a need to review the damages upward since there is a philosophy behind such an award, and it is not punitive.
The second set of Respondents’ submissions on this Issue spans from pages 21-32 of their brief of argument but most of it boils down to justifying their arrest and detention of second to fifth Appellants, and questioning the award of damages made by the Court below, which is unacceptable, as this Issue is restricted to the Appeal itself.
However, citingOdogu V. AG. Fed. (supra), the relevant aspects of their submissions is that damages awarded by the Court below is neither manifestly too high or manifestly too low for the Appellants, who were detained for less than 24 hours and were granted bail; and they have not shown that the award was based on a wrong principle, the basis for which they can pray the Court to review the
award – Akinkugbe V. Ewulum Holdings & Anor (2008) NWLR (Pt. 1098) 375.
They argued that an award of general damages is discretionary and as such, precedent shows that interference by this Court on this exercise of discretion is rare and must be founded on cogent reason, Siat S. A. Brussels & Ors. V. Sandatone Securities Ltd. (2009) 17 NWLR (Pt. 1171) 525, Hamza V. Kure (2010) 10 NWLR (Pt. 1203) 630; that the Appellants have failed to establish how the Court below fall into any of the errors spelt out by this Court in Nyame V. FRN (2010) 7 NWLR (Pt. 1193) 344, therefore, this Court need not interfere with the lower Court’s discretion, as the Appellants have not shown that it was exercised frivolously; and that “the Appellants having failed to demonstrate that the lower Court exercised its discretion arbitrarily in this instance, same discretion need not be altered by this Court”.
The Appellants countered that the first Respondent’s comment about appellate Courts not upsetting an award of damages because if it tried a matter it would have awarded a higher or lesser amount is not the position regarding a breach of fundamental human rights; that
it failed or omitted to cite all the relevant factors or principles and recent decisions of this Court, including Jim-Jaja’s Case (supra); and that the position of the law is where there is a conflict between two Supreme Court decisions, the latter in time prevails, as decided by this Court in F.U.T.A V. Ajidahun (2012) 1 4 NWLR (Pt. 1321) 583.
Furthermore, that the lower Court never said that Respondents were not reckless but acted out of suspicion or misunderstanding that these are words of first Respondent and it was settled law that counsel cannot give evidence in his brief or plead facts or law not in his pleadings Unity Bank V. Owie (2011) 5 NWLR (Pt 1240) 273; and that Flint v Lovell (Supra), Ojini v. Ogo Oluwa Motors (supra) Sabru Motors V. Rajab Ent. Ltd (supra) and Abia State University V. Anyaibe (supra), which the First Respondent cited and relied upon are distinguishable and they are, therefore, inapplicable to this case.
They proffered the same argument in response to the third fifth Respondents Brief and added that misapprehension of facts or the law is no excuse and even so an appellate Court
will interfere to set aside the judgment Ceekay Traders V. Gen. Motors (Pt 222)132 (sic), NAA v. Okoro (1995) 6 NWLR (Pt 403) 510, Nnadozie V. Mbagwu (2008) 3 NWLR (Pt. 1074) 363 and Jim-Jajas case (supra)
They contend that it is no excuse and not the law to argue that since the Court stated that there is misapprehension of facts that the Respondents’ conduct in arresting and detaining them is justified, therefore, the submissions of the said Respondents in distinguishing Jim-Jaja’s Case (supra) is irrelevant to this case. Furthermore, that –
The evidence on record actually disclose that [they] were detained from 1.30pm on 9/9/2004 until 9.00pm the following day 10/9/2004 – – over 24 hours (30 hours plus) and treated like common criminals. They were denied food and water, not given the option of bail, [they] immediately provided responsible sureties but DSP Elleman insisted if they did not sign the undertaking to return the money, they should not be released.
I must say that the Appellants outlined the necessary framework for resolving this issue, one way or the other. As they rightly submitted, the following factors emanate from
authorities they cited – Odogu V. AG, Fed. (supra), Onwu V. Nka (supra), Eliochin Ltd. V. Mbadiwe (supra), ACB. V. Apugo (supra), UBN V. Odusote Bookstores (supra), where this Court will interfere and reverse compensatory damages –
– The compensation should reflect not only the pecuniary loss of the victim but also the abhorrence of society and the law for gross violation of human rights.
– Trivialization of a serious matter personal liberty by an inordinately low award should be avoided.
– Personal Liberty of the individual is a commodity of inherently high value.
– Financial loss, which flowed directly from the Appellants’ prolonged incarceration, is a serious factor to be considered.
– Deprivation of liberty has consequential personal/sentimental impact.
– Judicial notice of the value of the Naira vis-a-vis other currencies should be taken by our Courts and is a relevant factor to be considered. Our Courts should keep up with the time and economic trend in the country and in particular with the prevailing decline in the purchasing power of the Naira over the past years.
– The Primary object of an award of damage is to
compensate the Plaintiff for the harm done to him or a possible secondary object is to punish the Defendant for this conduct in inflicting that harm [exemplary damages].
– An award of damages can only be upset or interfered with by on appellate Court if either the trial Court acted or proceeded upon wrong principles of law or the amount awarded by the trial Court is manifestly and extremely high or low.
– An appellate Court will interfere where the trial Court acted under a mistake of law or acted in disregard of principles or acted under a misapprehension of facts or took into account irrelevant matters or failed to take account of relevant matters or where injustice would result if the Appeal Court does not interfere.
– An appellate Court will reverse the amount of damages where the amount awarded was too extremely high or so very small as to make it, in the Judgment of the Court, an entirely erroneous estimate of the damages to which the plaintiff is entitled or where the circumstances calling for such interference are shown to the appellate Court.
In Odogu V. A.-G. Fed. (supra), which the first Respondent also cited, Appellant was detained for about
eight years but the trial Court only awarded him a sum of N2, 000.00 as damages. The Court of Appeal increased the amount of damages to N75, 000.00, Still dissatisfied, the Appellant appeared to this Court for a review. This Court allowed the Appeal and increased the amount of damages to N200,000:00.
I must point out that the quotations from the Judgment attributed by the Appellants in their Brief to this Court in Odogus case (supra), was made by the Court of Appeal in the Judgment appealed against. Even so, this Court agreed with the following passage by that Court
Whatever compensation is awarded should truly reflect not only the pecuniary loss of victim but also the abhorrence of society and the law for such gross violation of human rights, particularly the right of personal liberty as in this case. An unwitting trivialization of a serious matter by an inordinately low award should be avoided. Personal liberty of the individual is a commodity of an inherently high value.
In this case, the Appellants cannot seriously equate their situation to that of Joseph Odogu, who had spent over eight years in detention; they admitted that they were detained for
over 24 hours [30 hours].
However, I am struck by the observation of the Court of Appeal in its Judgment that this Court approved of in Odogu’s Case(supra), which, in my view, resonates deeply or strikes a chord in this Appeal. The said case also dealt with the enforcement of fundamental rights, and the Court of Appeal per Ayoola, JCA, (as he then was) observed-
An unwitting trivialization of a serious matter by an inordinately low award should be avoided. Personal liberty of the individual is a commodity of an inherently high value.
In this case, the Appellants claimed a sum of “N50, 000.000.00 being aggravated and exemplary damages against the Respondents jointly and/or severally in favour of each of the Appellants for the unlawful and unconstitutional arrest and/or detention of the Applicants”.
In its Judgment, the Court of Appeal held that the Respondents failed to prove the allegation that there was a contract scam, which triggered the arrest and detention of the second to fifth Appellants. It found that third to fifth Respondents embarked on what it called “recovery of debts”, which is “definitely” not part of their mandate, “as there is no
such provision under the EFCC Act”. It concluded that the arrest and detention of the Appellants was unjustifiable; that it is “wrongful and unconstitutional”; and that the “3rd 5th Respondents are liable for the unlawful arrest and detention of the Appellants”. But at the end of day, it awarded the sum of N750, 000 as damages.
It is clear, as the Appellants submitted, that the Court of Appeal awarded the said sum of N750, 000 to be shared by three Appellants, which by arithmetical calculation makes it N250, 000 for each one.
Despite the fact that they claimed damages for “each” one of them, the Court of Appeal omitted the word “each” from the Order made.
Obviously, having found that the third to fifth Respondents had been on a frolic of their own, so to speak, when they arrested and detained the said Appellants until they signed an undertaking to pay N600 Million, a sum of N250, 000.00 awarded as damages is too low.
It is a mere slap on the wrist in this case that came to the Court via the Fundamental Human Rights [Enforcement Procedure] Rules. This Court made it very clear in Jim-Jaja’s
Case (supra) that a person, who has established that he was unlawfully detained, as in this case, does not have to pray for compensation before he is awarded one. He is entitled to compensation automatically. But where he claims a specific amount, it is for the Court to consider the claim and award, in its opinion, an amount that would be justified to compensate him.
I now ask – is the sum of N250, 000 awarded by the Court below as damages to an Appellant a justifiable amount for depriving him of his personal liberty, which is a commodity of inherently high value My answer is No. It found that the Respondents went off track and were not acting according to law when they detained the Appellants. In my view, to award such a miserable sum as damages screams out trivialization of a serious matter, and this Court will have to interfere.
Obviously, the omission of the fifth Appellant as an awardee for damages by the Court below is clearly an error that is easily righted, and I do not need to go into the details of the Appellants’ arguments.
The second to fourth Respondents are the Deputy Managing Director, Chief Legal Adviser/Company Secretary, General
Manager in charge of all the Branches, Public Sector and Multilateral Agencies respectively of the first Appellant, while fifth Appellant is “Manager and Account Officer of the Head Branch” of the first Appellant Bank; and as much a “key chief officer” of the Bank as the other Appellants.
The Court of Appeal found that they were unlawfully arrested and detained and were therefore, entitled to damages. It expressly excluded the first Appellant because it cannot be physically arrested, but made no mention of the fifth Appellant in awarding damages, which is why I believe that the omission of the fifth Appellant is an error that is easily corrected by this Court and it will be so corrected. Issue 3 is, therefore, resolved in favour of the Appellants as well.
Issue 4 is whether the Court below was wrong when it held that the Appellants were not entitled to exemplary damages, as follows
The Appellants urged this Hon. Court to award exemplary damages because the conduct of the Respondents disclose malice, fraud, cruelty, insolence and flagrant disregard of the law. – – I do not agree that the action of the Respondents amount to such
exaggerated description. In my view, the 3rd 5th Respondents acted out of misapprehension of the facts to the effect that there was a conduct scam. I will rather describe their action as executive exuberance. For a party to be entitled to exemplary damages it is his duty to prove that the action of Respondent is outrageously reprehensible; which has not been so proved in this case.
Without much ado, I will quickly say that the Court of Appeal is right. What they did was wrong, however, I do not agree that the conduct of the third to fifth Respondents is as described by the Appellants to warrant or justify an award of exemplary damages to the Appellants.
Such damages are awarded when a Defendant’s willful act was malicious, violent, oppressive, fraudulent, wanton or grossly reckless see legal-dictionary.thefreedictionary.com, where it is also stated
These damages are awarded both as a punishment and to set a public example. They reward the Plaintiff for the horrible nature of what he/she went through or suffered. Although often requested, exemplary damages are seldom awarded.
See also Eliochin (Nig.) Ltd. V. Mbadiwe (supra), relied
upon by the Court of Appeal, wherein this Court per Obaseki, JSC, observed that
The primary object of an award of damages is to compensate the Plaintiff for the harm done to him or a possible secondary object is to punish the Defendant for the conduct in inflicting that harm. Such a secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which go by various names to wit; exemplary damages, punitive damages, vindictive damages, even retributory damages and comes into play whenever the Defendant’s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like.
In this case, Respondents were looking into an alleged contract scam, and may have acted beyond their mandate, but there is nothing to indicate that their conduct was actuated by malice or that they were propelled by to humiliate, disgrace or treat Appellants badly.
This Issue is therefore, resolved in favour of the Respondents.
In the final analysis, the decision of the Court of Appeal stands, but the award of N750, 000 as damages must be
reviewed upwards. What is the appropriate amount in the circumstances of this case
In fixing an amount for the infringement of fundamental rights, the following factors inter alia may be taken into consideration see Arulogun V. C.O.P., Lagos State & Ors. (2016) LPELR-40190(CA)
(a) The frequency of the type of violation in recent times;
(b) The continually deprecating value of the Naira;
(c) The motivation for the violation;
(d) The Status of the Applicant;
(e) The undeserved embarrassment meted out to the Applicant including pecuniary losses; and
(f) The conduct of the Parties generally, particularly the Respondent.
In this case, the second to fifth Appellants, who are chief key officers of the first Appellant, were arrested and detained for over 24 hours. There is nothing extraordinary to justify imposing a very high amount but the award of damages made by the Court below is much too low. I take a middle ground and increase the amount to one Million Naira each to the second, third, fourth, and fifth Appellants; and I so order.
This Appeal is allowed in part. The decision of the Court
below is affirmed, however, the order for damages is set aside. In its place, an award of damages against the Respondents, jointly and severally, in the sum of one Million Naira each to second to fifth Appellants, who were unlawfully arrested, is entered as the Order of the Court.