Jaiyesimi & Anor V. Darlington (2022)

LAWGLOBAL HUB Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.S.C.

This is an appeal against the concurrent findings of fact of the two lower Courts. The Court of Appeal, Lagos Division, Coram: J. S. Ikeyegh; U. A. Ogakwu; A. O. Obaseki-Adejumo delivered its judgment on the 14th day of December, 2017 affirming the judgment of the trial Court in favour of the Respondent. The Appellants had appealed against the judgment of the trial Court delivered by Hon. Justice W. Animasahun of the High Court of Lagos State in a fundamental right proceeding on the 1st day of February, 2016 wherein judgment was delivered in favour of the Respondent (Applicant at the trial Court). The Appellants herein were the Appellants at the Court of Appeal while the Respondent herein was the Respondent at the Court below. The trial Court awarded aggravated damages against the Appellants and held their employers – First Bank not vicariously liable for the breach of the Respondent’s fundamental rights. The facts that led to this appeal are that the 1st Appellant was the officer in charge of the account of a customer known as OLAM NIGERIA LIMITED on which a fraud of N355,000,000 (Three Hundred and Fifty-Five Million Naira) was attempted on 25/09/2013. It was this attempted fraud that occasioned the chain of events that precipitated the suit. The two lower Courts found as follows:

The Respondent was a dispatch rider whose routine duties include delivering documents specified by his superiors to various officers within the Bank and other places around Lagos. The Respondent was instructed to take four (4) funds transfer forms originating from the account of OLAM NIGERIA LIMITED to the Operations Manager at the Head Office to effect the transfer of the total sum of N355 million into four Corporate Accounts. After the Respondent dispatched the transfer forms as instructed, he was summoned back to the office and the two Appellants caused him to be detained at the Lion Building Police Station because he refused to say that he submitted the transfer funds in error to the Operations Manager. The Respondent was detained from 25/9/2013- 26/9/2013 at Lion Building police cell where he had been taken by First Bank Security on the instruction of the Appellants. On 27/9/2013 he was bailed, but the same night, the Bank’s security men on the instruction of the Appellants got the Respondent detained at Ikoyi Police Station. He was detained for seven (7) days and charged on 4/10/2013 at the Magistrates’ Court 11 in Lagos State. After numerous adjournments, the Magistrates’ Court struck out the charge for lack of diligent prosecution.

There was unanimity in the affidavit and the counter-affidavit filed by both Appellants and the Respondent at the trial Court that no-superior official of First Bank’s head office questioned the Respondent on the matter, and apparently knew any details of the attempted fraud or participated in the instructions to detain the Respondent.

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After his discharge by the Magistrates’ Court, the Respondent instituted proceedings to enforce his fundamental human rights to personal liberty and dignity and for damages for his unlawful incarceration at various police stations for several days for no just cause. After hearing the application, the trial Court found and held that the rights of the Respondent had been infringed and awarded exemplary damages of Ten Million Naira (N10,000,000) against the 1st Appellant and Seven Million, Five Hundred Thousand Naira against the Appellant and costs of the action at N1 million each against the Appellants. The Appellants appealed to the Court below.

The Court held after it re-evaluated the evidence at trial and considered the issues raised by the parties that the trial Court discharged its primary duty of evaluating evidence and its conclusion after the evaluation was not perverse and that the trial Court justified its findings of violation of human rights against the Appellants. The Court also held there was no appeal against the award of aggravated damages and refused to decide the point.

On appeal to this Court, the Appellants settled through their counsel Chief Karina Tunyan SAN the following issues for consideration.

1. Whether on the state of the disputed facts, the conflicting evidence in the affidavits exchanged by the parties and the hostile nature of the proceedings based on the allegation of violent maltreatment, the suit at the lower Court was rightly commenced by affidavit evidence procedure and the two Courts below were right to have countenanced same and accede to the Respondent’s claims. (Distilled from grounds 1)
2. Whether the Appellants were responsible for breach of the Respondent’s fundamental right to personal liberty (Distilled from grounds 2).
3. Without prejudice to issue two above whether the Appellants can be adjudged and/or held personally liable in damages for an action of a disclosed principal. (Distilled from grounds 3).
4. Whether the award of aggravated damages against the Appellants jointly and severally was proper based on the relevant facts and circumstances of this case. (Distilled from grounds 4).

The Respondent’s counsel Mrs. Funmi Falana settled four (4) similar issues for determination as set out below:

1. WHETHER the Court of Appeal was right in holding that the judgment of the trial Court was not against the weight of evidence adduced at the hearing considering the facts and circumstances of the case. (Distilled from Ground 1).
2. WHETHER the Appellants can be held liable for breach of the Respondent’s fundamental right to personal liberty. (Distilled from Ground 2).
3. WHETHER the Appellants who mischievously complained to the police, strenuously pursued same to indict the Respondent and even when the Police offered to investigate the fraud multiple times but they were always stopped by the Appellants who would tell them to ignore that and just make sure that the Respondent admitted that he was guilty for a crime he knew nothing about can be adjudged personally liable for their actions. (Distilled from Ground 3).
4. WHETHER the award of aggravated damages against the Appellants jointly and severally was proper considering the facts and circumstances of the case. (Distilled from Ground 4).

The real issues in controversy between the parties will be considered in the determination of this appeal. They are:

1. Whether the Appellants can be held solely liable for the breach of the Respondent’s fundamental right to personal liberty.
2. Whether the Court below was right in holding that the claim of the Respondent was legally proved and the Respondent was entitled to the award of aggravated damages in the circumstances of this case.

ISSUE ONE

Learned Appellant’s counsel submitted that from the undisputed facts on record, the appellants at all material times acted as agents for and on behalf of a disclosed principal in reporting an alleged fraud and handing over the Respondent as suspect to the security department of First Bank who in turn handed him over to the police who subsequently detained him. Learned counsel argued that if the First dank was not found liable, then the Appellants who did not act on a frolic of their own but simply discharged their duties to their employers could also not be found liable for violating the rights of the Respondent. Counsel argued that an agent acting on behalf of a disclosed principal incurs no liability. Counsel cited the case of NIGER PROGRESS LTD v. N.E.L CORPORATION (1989) 3 NWLR (Pt. 107) PAGE 68, LEVENTIS TECH. LTD v. PETRO JESSICA ENT. LTD. (1992) 2 NWLR (Pt. 214) pg. 459, FAITH ENTERPRISES LTD. v. B.A.S.F. (NIG) LTD. (2001) 8 NWLR (Pt. 714) PG. 242 AND ESSANG v. AUREOL PLASTIC LTD. (2002) 17 NWLR (Pt. 795) pg. 155.

In reply, Counsel argued that the Respondent was able to prove that it was the two Appellants and not First Bank as a corporate entity which set the law in motion against him, while the Appellants could not prove that their actions were in furtherance of their duty to their employers. The Court was bound to hold that their actions were mala fide.

Counsel cited AFRIBANK v. ONYIMA (2004) 2 NWLR pt. 858 pg.654 AT 679, FAJEMIROKUN v. COMMERCIAL BANK NIG. LTD (2002) 1 NWLR Pt. 774 pg. 95.

OPINION ON ISSUE ONE

The only ground of appeal and reliefs sought against the judgment of the trial Court at the Court of Appeal is stated as follows:

1. The judgment is against the weight of evidence adduced at hearing:

Particulars of Errors:

(a) The appellant merely reported an attempted fraud to the police but did not order the police to detain or prosecute the respondent as implied by the judgment

(b) The report incidented (sic) by the Appellants at the police was not fictitious as there was real/apparent prove of attempted fraud justifying a necessity for police investigation against the Respondent.

(c) That the evidence adduced at hearing are such as would have required oral evidence to proof and or to justify the award of aggravated damages against the Appellants.

RELIEFS SOUGHT FROM THE COURT:

i) That the appeal be allowed and the decision of the lower Court be set aside.

ii) That the application/originating summons of the Appellant/Respondent at the lower Court be dismissed

The learned Court below held on the issue of the vicarious liability of First Bank as follows:

“First Bank of Nigeria Plc was one of the Respondents at the lower Court. In its ruling, the lower Court held that First Bank was not responsible and liable for the infringement of the Respondent’s fundamental rights (see page 74 of the records). There is no appeal against this finding so it remains subsisting and binding: ONAFOWOKAN V. WEMA BANK (2011) LPELR(2665) 1 at 41 (SC).”

In the original notice of appeal to this Court filed on 20/12/2017 against the judgment of the Court below, the following complaints shorn of their particulars were made:

1. The lower Court erred in law and facts when it held that the judgment of the trial Court is not against the weight of evidence adduced at hearing.
2. The lower Court erred in law and fact when it held that the evaluation of evidence and ascription of probative value thereto by the lower Court are not perverse and clearly justifies the award of aggravated damages as claimed by the Respondent.

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Nothing in the particulars of error relates to the finding of the Court below on the issue of lack of vicarious liability of the Appellants’ employer. The Appellants were obliged to appeal against the finding of the Court below wherein it held that there was no appeal to it against the finding of the trial Court that First Bank was not vicariously liable for the action of its employees.

An appeal can only emanate from complaints against the findings of fact and decisions of law of the Court below to this Court pursuant to Section 233 (1) of the 1999 Constitution (as altered). In this case, there were no complaints before the Court below against the findings that there was no evidence that First Bank Plc was vicariously liable for the actions of its agents. That was an issue on which the Court below did not take a decision having not been made a ground of appeal before it. The Appellants raised this issue for the first time in its amended notice of appeal filed on 2/4/2019 in this Court. From the records available, there is no order sought or obtained to raise the fresh issue on appeal. There can only be an appeal to this Court on an issue on which the Court below had pronounced except in circumstances where this Court has allowed it. Even if there is leave to appeal on a fresh issue, this is not a fresh issue having been vigorously fought at the trial Court and decision taken on it against which there was no appeal to the Court of Appeal. A fresh issue is one which the parties did not controvert at trial and on which there is no prior determination of same.

No appeal from the trial Court can lie directly to the Supreme Court as the Appellant is seeking to do in this case. This Court has no jurisdiction to determine this issue.

This matter has been raised suo motu in this Court as a matter of jurisdiction. There is no need to seek the opinion of the parties in order to make a final decision in the circumstances. This Court has held recently and consistently that the need to give the parties a hearing when a judge raises an issue on his own motion or suo motu would not be necessary if: (a) the issue relates to the Court’s own jurisdiction. (b) both parties are/were not aware or ignored a statute which may have bearing on the case. That is to say where the Court is supposed to take judicial notice of a statutory provision. (c) when on the face of the record, serious questions of the fairness of the proceedings is evident. See Section 73 of the Evidence Act.

See IDACHABA & ORS V. UNIVERSITY OF AGRICULTURE, MAKURDI & ORS (2021) LPELR-53081(SC) Pg. 21-22, paras. E-D PER ABBA AJI, JSC, OLABODE RHODES-VIVOUR, JSC in OMOKUWAJO V. FRN (2013) LPELR-20184(SC) (Pg. 37-38, PARAS. F-D).

Ground 3 of the amended notice of appeal and issues 2 and 3 distilled by the appellant similar to issue 1 distilled by me are hereby struck out.

ISSUE TWO

The only live issue in this appeal is the one identified above as issue 2. Learned senior Counsel for the Appellants argued five points on this issue. Learned senior Counsel for the Appellants on the first point argued that since the Respondent swore that he was assaulted by the Policemen who arrested and detained him, he was obliged to prove these criminal allegations beyond reasonable doubt

Senior Counsel cited A.C.N. v. NYAKO (2015) 18 NWLR Pt. 1491 Pg. 352 at 388 and Section 135 of the Evidence Act.

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Senior Counsel argued on the second point that the Court below failed to consider these allegations, which is rooted in tort, criminality should be proved beyond reasonable doubt. Senior Counsel argued that there is no gainsaying from the averments made by the Respondent in his originating process, which contains allegations of assault and inflicting bodily harm which are tortious and criminal in nature and must be strictly pleaded with particulars and proved beyond reasonable doubt. More fundamentally, these allegations were specifically denied by the Appellants in their joint counter-affidavit at page 31- 35 of the record of appeal making them highly contentious and the proceedings hostile in nature. The Court below failed to consider many serious and material conflicting evidence that characterized the proceedings at the trial Court, but limited the judgment to the claim to enforcement of the respondent’s right to personal liberty. Senior Counsel cited AGI v. PDP & ORS (2016) LPELR-42578 (SC) Pg. 87-88.

Learned senior Counsel submitted that on the state of affidavit evidence filed by the respective parties in the proceedings, alleging assault, violence and counter-allegation which are criminal in nature, it was inexcusable in the interest of clarity for the trial Court to proceed on the mode of commencement of the suit vide an originating motion procedure. Senior counsel cited WILLIAMS v. NWOSU (1994) 3 NWLR Pt. 331 Pg. 156 at 176, JABRE V. JABRE (1999) 3 NWLR Pt.596 Pg. 606 at 621 AND UDO V. ESSIEN & ORS (2014) LPELR-22684 (CA).

Learned senior counsel argued on the third point that the decisions of the trial Court and the Court below were largely subjective and based on presumptions and they should not be allowed to stand. Senior counsel cited AMUZIE V. THE STATE.

Learned senior counsel argued on the fourth point that, there was no reasonable cause of action directly against the Appellants regarding the arrest and unlawful detention of the Respondent, for days in excess of the constitutionally prescribed period by virtue of Section 35 (1) of the Constitution. There was equally no proof of malice on the part of the Appellants when it caused a complaint to be laid to the police on grounds of reasonable suspicion.

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Senior counsel argued that the facts of this case clearly showed that the appellants only handed the respondent to the security attached to the bank for onward investigation on reasonable suspicion of fraud, which was done in the ordinary course of discharging the functions of their office. The subsequent actions of the police were not within the control of the appellants, even if it was rightly adjudged illegal by the trial Court that the respondent’s detention by the Police was beyond the constitutional period prescribed by law to hold a suspect.

Senior Counsel cited AIG IMUOKHUEDE V. UBAH (2014) LPELR-23965, ONAH V. OKENWA (2010) 7 NWLR PT. 1194 Pg. 512 at 536, BANK OF WEST AFRICA V. ODIATU (1962) ALL NLR PG. 625.

The substance of the arguments of the Appellants, is that it was an error on the part of the trial Court to believe the Respondent without calling oral evidence. Counsel cited PRINCEWILL V. STATE (1994) 6 NWLR pt. 353 pg. 703 in aid of the submission that oral evidence must be called to reconcile conflicting affidavit evidence.

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Senior Counsel complained on the fifth point of the aggravated damages awarded against the Appellants in view of the fact that the decision of the trial Court was perverse because it took into account matters which were irrelevant and shut its eyes to the specific traverse by the appellants in its joint counter- affidavit. Senior Counsel submitted that the trial Court misdirected itself when it held that the Respondent was incarcerated for fifty-two days, having earlier held that the detention of the Respondent at Lion Building Police Station was not unconstitutional. Senior Counsel urged the Court to set aside the judgment of the trial Court.

In reply to the first complaint, the Respondent submitted that it is misconceived for the Appellants’ counsel to argue that the action should not have been first commenced and maintained under the Fundamental Rights Enforcement Rules 2009. Counsel argued that the reliefs sought by the Applicant at trial was the protection of his fundamental rights to personal liberty and dignity of the person guaranteed by Sections 34 and 35 of the 1999 Constitution.

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Counsel submitted that the Fundamental Rights (Enforcement Procedure) Rules, 1979 created a special procedure for proceedings under this peculiar category of action. It is only by these procedures that an action can be brought to enforce fundamental rights and it is the provisions of the 1979 Rules that guide the conduct of proceedings of all actions to enforce these Rights. Counsel cited OGUGUA V. THE STATE (1996) 9 NWLR Pt. 336 pg. 6 AND RAYMOND DONGTOE V CSC PLATEAU STATE (2001) 4 SCNJ 131. On the second complainant, learned Respondent’s Counsel argued that a tortious act may also amount to an abuse of fundamental right. In such a situation the victims are entitled to elect the procedure of obtaining redress. In this case, the Respondent opted to activate redress through the procedure under the Fundamental Human rights enforcement rules. Counsel cited NUT V. COSST (2007)23 WRN 63.

In reply to the third complaint, the Respondent argued that the allegation against the Respondent was that he submitted four fund transfer forms which were forged. The charge against him at the Magistrates’ Court did not accuse him of forging the forms or being a beneficiary or transferee of the funds. Counsel for the Respondent argued that the Appellants resisted the attempt by the Police to investigate the particulars of the transferees of the funds and it was correct for the trial Court to hold that the presumption created by Section 167 (d) of the Evidence Act availed the Respondent.

In reply to the issue of the liability of the Appellants for the breach of the Respondent’s fundamental right to personal liberty, the Respondent argued that the Applicant now Respondent successfully discharged the onus of proof on him to show that the Appellants were actively and maliciously instrumental in causing his arrest and that his arrest and detention were unlawful.

Learned Respondent’s counsel argued that the subsequent arraignment of the Respondent did not absolve the Appellants or remedy the unlawfulness of the initial detention.

On the last issue of the award of aggravated damages, learned Respondent’s Counsel argued that the reasoning of the learned trial judge was based on the evaluation of all the evidence before the Court. Counsel argued that the damages were awarded in this case for the wrongful conduct of the Appellants which far exceeded the bounds of their duty. Counsel cited ADAMU V. GULAK (2013) LPELR-20844 (CA), ASIEGBU V. OLIBIE (2010) ALL FWLR part 516 at 547, IJEBU ODE LGA V. BALOGUN (1991)1 SCNJ 1 and ADENIRAN V. ALAO (1992) 2NWLR (223) 350 at 372.

Counsel insists that there is no reason to disturb the findings of fact of the trial Court and the appellate Court. Counsel cited DANIEL GARAN V. STAFF OLOMU (2013) 10 SCM pg.88 at 102-103 to support the argument that this Court should not interfere with the order for payment of aggravated damages.

RESOLUTION OF ISSUE TWO

The first complaint of the Appellants, is that given the state of the disputed facts, the conflicting evidence of the affidavit of the parties and the hostile nature of the proceedings, the suit should never have been commenced by affidavit evidence but by Writ of Summons more so when there was need to prove some criminal allegations beyond reasonable doubt, which the Respondent failed to do. Throughout the gamut of the Appellants’ brief, the reasoning senior Counsel for the Appellants has been to attack the judgment of the trial Court and not the judgment of the Court below. It appears that senior Counsel for the appellant is in willful denial or misconception of the specie of claim brought against the Appellants at the trial Court. The Respondent had filed an Originating Motion pursuant to Sections 34(1)(a), 35(1)(5) & (6) and Section 46(1) & (2) of the 1999 Constitution (as altered). And Order 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009. ​There was a statement in support of the application and an affidavit in support of the Originating Motion, which is the proper mode of commencement of an action under the Fundamental Right Enforcement Procedure Rules. This specie of action is a peculiar action. It is a kind of action which may be considered as “Sui Generis” i.e. it is a claim in a class of its own though with a closer affinity to a civil action than a criminal action. The available remedy by this procedure is to enforce the Constitutional rights available to citizens which had been contravened by another person or the State. Fundamental Rights are so basic and inalienable to every man that they have to be enshrined directly in the Constitution. Under the 1999 Constitution (as altered), the rights are preserved by Chapter IV thereof See RAYMOND S. DONGTOE V. CIVIL SERVICE COMMISSION, PLATEAU STATE & ORS (2001) 4SCNJ PAGE 131.

The right to approach a Court to enforce a Fundamental Right is conferred by Section 46(1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria (as altered). An action to enforce the fundamental rights is almost invariably a complaint against a tortious act. An applicant may choose to attain redress by way of the fundamental Rights procedure which is quicker or by Writ of Summons. The complaint against the procedure adopted is that there are contradictions in the case of both parties which are needed to be resolved by oral evidence, failing which it was wrong for the trial Court and the Court below to hold that the allegations of crime in the application of the Respondent had been proved beyond reasonable doubt. As I stated earlier, it is apparent that the learned Senior Counsel for the appellants does not appreciate the nature of the proceedings chosen by the Respondent for obtaining redress from the Appellants for the violation of his fundamental rights.

Contrary to the Appellants’ assertion, the affidavit sworn to and documents attached to them constitute evidence as against the calling of oral witnesses and tendering of documents in a suit commenced by writ of summons. In the instant case, the Respondent in proof of his case attached documents admitted as Exhibits to his affidavit in support of his motion.

The rationale for this mode of commencement of enforcement of fundamental rights procedure was amply explained in EMEKA V. OKOROAFOR & ORS (2017) LPELR-41738 (SC). It was held that enforcement of this right is in a special breed amongst the various means of approaching the Courts for justice in that the procedure is peculiarly structured to achieve speed and uphold the constitutionally guaranteed freedom of the aggrieved party. It is governed by specific and special rules which have bypassed the normal rules of procedure in order to give effect to the overriding need for speedy justice in these cases which in times past were originated by writ of habeas corpus to force the state to bring up prisoners in the custody of the state. The procedure adopted by the Respondent was proper according to law, as it renders meaningful the provisions of the Constitution dealing with enforcement of fundamental rights. The crux of the Appellants’ complaint on this issue is that there were conflicts in the affidavit evidence of both parties which should have been resolved by oral evidence.

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The law is settled that generally, a Court of law is not competent to resolve conflict in affidavit evidence without calling oral evidence. There is however exception to this rule, one of which is that where the Court has documentary evidence at its disposal which can aid it to resolve the conflict, it can do so without recourse to oral evidence. See EZEGBU V. F.A.T.B LTD (1992) 1 NWLR (Pt.220) 699 at 720; MAGNUSSON V. KOIKI (1991) 4 NWLR (Pt.183) 119.

​Furthermore, the need to call oral evidence would not arise if the areas of conflict are so narrow or if there are enough documents to assist the Court in the resolution of such conflict. The conflicts in paragraphs 6 and 7 of both the affidavit in support and some paragraphs of the counter-affidavit before the trial Court were highlighted by the Appellants in paragraphs 3.5, 3.7, 3.8, 3.10, 3.11, 3.16, 3.18, 3.19, 3.20, 3.22 etc of their brief.

Wherever there is a complaint that the resolution of affidavit evidence has led to a miscarriage of justice, the review Court must consider the importance of the contradictions in determining the actual issues in controversy between the parties. Immaterial contradictions go to no issue.

The Court below determined this point brilliantly as follows on Pg. 105 – 106 of the record:

​”The conflicts highlighted by the Appellant dwell on whether documents meant for dispatch can be left on a printer or on a table, or whether it is to be specially handed over to the dispatch rider. Also, whether any member of staff of the company whose account a fraud was sought to be perpetrated upon was in the bank on the day in question. Undoubtedly, the affidavits filed are in conflict in this regard, but the action before the lower Court could not have turned on these matters. As earlier stated, it was an action for the enforcement of fundamental rights of the Respondent; what was material was whether the arrest and detention of the Respondent was for a period in excess of the constitutional provisions in Section 35 of the 1999 Constitution. So, the crux of the dispute was such that could be resolved against the background of the law without the necessity of resorting to first hearing oral evidence to resolve the conflicts in the affidavits.”

See also PHARMACISTS BOARD V. ADEBESIN (1978) 5 SC 43, NATIONAL BANK V. ARE BROTHERS NIG. LTD (1977)6 SC 97.

Where the issues can be resolved on grounds of law, there would be no necessity to resolve conflicts in affidavit evidence. See IN RE: OTUEDON (1995) 4 NWLR PT. 392 pg. 655.

The material facts in issue in this cause of action to assert the fundamental rights of the Respondent and to seek redress for its violation are whether or not indeed the right to freedom of movement of the Respondent was violated contrary to the constitution. That is the live issue between the parties. In this case, all parties were in agreement as to the length of time the Respondent spent in police custody at the different Police Stations until he was charged to Court. Thus, I agree with the Court below that the conflicts on which the Appellants anchored their complaint are immaterial to the determination of the real issues in controversy between the parties.

On proof beyond reasonable doubt, of some allegations bordering on criminality, as I said earlier, it is apparent that the learned senior counsel to the Appellants does not appreciate the requirements of the law in proving or disproving complaints of violation of fundamental rights. All an applicant is required to do to prove violation of his rights by an individual or an agent of government is by filing an application supported by a Statement of facts and verifying affidavit in proof. It is not a criminal charge against the State or an individual as the case may be.

The purpose of an affidavit is to provide evidence to prove a material point(s) in controversy. See OBLECHOR LIFU AGU & 2 ORS V. JOSEPH IDU (2013) 24 WRN 106. See also BANQUE DEL’AFRIQUE OCCIDENTTAL V. ALHAJI BABA SHARFADI & ORS (1963) NNLR 21.

It is the detention of the Respondent by the Police through the instigation of the Appellants that was the crux of the claim at trial against the Appellants, not the physical assault on the Respondent by the police which the Appellants claims must be proved beyond reasonable doubt. In this case, the argument about proof of the allegations of police brutality go to no issue and is irrelevant.

The question here is whether the right of the Respondent to freedom of movement was violated. The Court below agreed with the trial Court that there being no controversy about the times the Respondent was incarcerated, what is relevant is whether each incarceration caused the derogation of the rights of the Respondent pursuant to Section 35 of the Constitution. Section 35(1) provides for the right to Personal liberty. The rights can be curtailed under any of the circumstances enumerated in Section 35(1)(a)-(f).

In this case, the trial Court found that the detention of the Respondent at Lion Building Police Station for 3 days over a weekend did not infringe his rights but that his detention at Ikoyi Police Station for (7) seven days infringed his rights. The Court below agreed with the finding of the trial Court that the Respondent was detained and not brought to Court within a reasonable time. The Court held that the finding was not against the weight of evidence.

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The Respondent was arrested and detained for 7 days at Ikoyi Police Station. Reasonable time is defined by Section 35(5) to mean one (1) day where there is a Court of competent jurisdiction within 40-kilometre radius of the place of detention. The fact that there is no denial by the Appellant in their counter affidavit of the period when the Respondent was detained at Ikoyi Police Station (7days) means that the finding of the Court below wherein it agreed with the trial Court that there was preponderance of evidence to support the unlawful detention of the Respondent for 7 days cannot be faulted.

As I have held earlier, there is no appeal against the finding of the Court below wherein it stated that there is no appeal against the finding of the trial Court that the First Bank was not liable for the infringement of the Respondent’s fundamental rights. That finding remains subsisting.

After reading the record, I can find no reason to disagree with the concurrent findings of both lower Courts that indeed the Appellants violated the Respondent’s rights to freedom of movement. In this type of claim, an action will not succeed against an individual who merely gave information to the Police, who on their own initiative decided to effect the arrest of a viable suspect of a crime.

In this case, it is clear from the affidavit of the parties and the findings of the trial Court upheld by the Court below that it was the Appellants who actively set the law in motion against the Respondent. See Isheno v. Julius Berger Nig. Plc. (2008) 6 NWLR pt. 1084 pg. 582. Those findings were rooted in evidence and not perverse.

On the issue of whether the award of aggravated damages was justified in the circumstances of this case, the reasoning of the learned trial judge needs to be considered. Before doing so, it is important to state that where an arrest and detention was unlawful, it doesn’t matter the length of time the plaintiff was detained, it is the unlawful action that has to be compensated in damages once the plaintiff proves his right to freedom of movement has been breached at the instigation or by the Respondent. There is no need to show any special evidence of damage, so long as there is preponderance of evidence of the breach of the right to freedom. See Mandilas v. Apena (1969) 1 NWLR pg. 99, Afribank v. Onyima (2004) 2 NWLR pt. 858 at 654.

At trial, the learned trial judge held on Pg. 74 of the record.

“I am left with the 2nd and 3rd Respondents. These two are the principal actor and actress in the concealment of the people behind the attempted fraud. They took charge immediately the fraud was discovered by the Fund Transfer Officer and made sure that it was not properly investigated and prosecuted. Common sense dictates that the 2nd Respondent should even have personal interest in seeing the case to logical conclusion if truly he knows nothing about how his signature got endorsed on the transfer forms.

I once again agree with the Applicant that the 2nd and 3rd Respondents used him as a shield and as a scape goat, I wish to condemn these in strong terms. It is unacceptable, it is wrongful, it is unlawful, it is devilish and sinful. This is a case in which the Court should award aggravated damages. Aggravated damages are awarded whenever the Defendant’s conduct is sufficiently outrageous to merit punishment, as where for instance, it discloses malice, fraud, cruelty, insolence, or fragrant disregard of the law. See UNIVERSITY OF CALABAR V. OJI (2011) LPELR-5069(CA).”

The Court below in reviewing this point held that the trial Court was right in its evaluation of evidence before it to determine that there was justification for the award of exemplary damages against the Appellant as claimed by the Respondent. I have read pages 72-74 of the record and I cannot but agree with the conclusions of the Court below that the trial Court discharged its primary duty of evaluating the evidence and ascribing proper probative value to it. The conclusions and inference are not perverse and justifies the award of aggravated damages in the circumstances. Aggravated damages are awarded where the tortfeasor have been particularly punitive, vindictive, malicious, high-headed and behaved in an oppressive manner towards the Plaintiff. See CHIEF FRA WILLIAMS V. DAILY TIMES LTD (1990) LPELR-3487 (SC) G.K.F. INVESTMENT V. NITEL PLC (2009)6-9 SC (PT.111) pg.163. They have been rightly awarded in this case.

Now, to the quantum of the aggravated damages. The Court below in reviewing this point held that the trial Court was wrong when it decided that the Respondent had been incarcerated for 52 days whereas by the initial finding of the Court the detention at Lion Building was for 3 days and found not unconstitutional. Whereas, the detention at Ikoyi Police Station for 7 days without any charge being laid against the Respondent was found unconstitutional. Thus, the claim only entitled the Respondent to compensation for detention for 7 days and not 52 days. The trial Court misdirected itself on this point and it is apparent on the record that this misdirection affected the quantum Of damages awarded by the trial judge. Where there is a complaint about the quantum of damages, and it is clear that the trial Court or penultimate Court misdirected itself or took into account irrelevant factors or false facts, the appellate Court is entitled to review upwards or downwards the damages. The Court in such circumstances can consider whether the damages awarded is manifestly too high or too low. The purpose of the award is to compensate the plaintiff for the harm done to him and secondly to punish the defendant for his conduct in inflicting that harm. See First Bank v. A. G. Federation & Ors (2018) LPELR-46084 (SC); (2018) 7 NWLR pt. 1617 Pg. 121. In this case, a downward review of the damages is apt in view of the obvious misdirection on the relevant facts which caused the trial judge to award the amount so awarded.

In the circumstances, I shall make a review of the quantum of damages. I believe the appeal on the entitlement of the Respondent to aggravated damages also includes the challenge to the quantum of the said damages. There is no evidence that the Respondent would have lost a lot of money during the detention even though he lost his liberty in egregious circumstances. Having agreed that the behaviour of Appellants was wrong and malicious, but taking into consideration that the Appellant did not actually lose money during the period in view, the awarded damages are revised downwards as follows:

1. N5 million (Five Million Naira) damages awarded against the 2nd Appellant.
2. N2.5 million (Two Million, Five Hundred Thousand Naira) damages awarded against the 2nd Respondent.

The amount awarded as costs stands, there being no appeal against same. Appeal succeeds in part. Parties to bear their costs of this appeal.

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SC.805/2018