Mr. Cosmos Onah V. Mr. Desmond Okenwa & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADAMU JAURO, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling (though reflected as judgment in the notice of appeal) of the Federal High Court Lagos, coram Tijjani Abubukar, J., delivered on the 19th January, 2006.

The facts giving rise to this appeal are as follows:- The 1st respondent is a musical producer and manager of an outfit known as Cornerstone Musical Productions. The 2nd and 3rd Respondents are musical artistes and composers of the musical album “Danfo Driver”. The appellant is a businessman engaged also in musical productions. In the court below the appellant was the 1st respondent, while the 2nd to 7th respondents are serving members of the Nigeria Police Force.

The respondents applied for the enforcement of their fundamental human right in the lower court on the grounds that they were arrested and detained several times by the police, at the instance of the appellant. The appellant denied ever breaching the fundamental right of the respondents, contending in their counter affidavits that the respondents had a fight with the appellant and on a report being made, they were invited by the police on 30/5/04 and released on bail same day.

The respondents as applicants, pursuant to a motion ex parte were granted leave on 20/9/04 for the enforcement of their fundamental rights and the matter was adjourned to 14/1 0/04 for report of service. Consequent upon the aforementioned leave, the respondents filed their motion on notice for the enforcement of their fundamental rights on 21/9/04 seeking for the following reliefs:

“1. A declaration that the several arrest; interrogations and detentions of the Applicants DESMOND OKENWA, OGHENEMATRO and JOSHUA OLOTU JIMOH at the Ajeromi Divisional Police Station between the 30th of May, 2004, 23rd August, 2004 by the 6th and 7th Respondents who are agents of the 2nd, 3rd, 4th and 5th Respondents at the instigation of the 1st Respondent are without justification, unconstitutional, unlawful and illegal.

2. A declaration that all statements, undertakings, apology letters, etc., obtained from the Applicants during the said period were null and void and of no effect whatsoever, having been produced forcefully and under duress.
3. A declaration that the damaging, injurious and false information initiated and spread by the 1st Respondent to the effect that 2nd and 3rd Applicants were caught, one shot dead and the other injured and paraded on TV as armed robbers is without justification, unlawful, illegal and unconstitutional and infringes on their fundamental rights.
4. An order restraining the Respondents their agents, servants, or privies from re-arresting, intimidating or detaining The Applicants as 1st respondent has already threatened to use all the other Respondent; besides the 6th and 7th to subdue the Applicants and forcefully get what he wants from them.
5. An order directing the Respondents jointly and severally to pay to the Applicants, the sum of N10,000,000.00 (Ten Million Naira only) being damages for their unlawful detentions and humiliations at Ajeromi Police Station as well as injury to their name, reputation and business caused by the damning information, initiated and circulated by 1st Respondent.

AND for such Further or other orders as the Honourable Court may deem fit to make’ in the circumstances.”

The two sets of respondents in the lower court filed their respective counter affidavits. The application was argued and in a six paged ruling particularly the concluding part at pages 194 – 195 of the records, the learned trial judge held thus:

“The act of the Police in keeping the matter within their office without referring same to court is an act that is neither necessary nor incidental to the efficient discharge of their duty.

I read bad faith in the conduct of the respondents:

1. I declare that the several arrest, interrogations and detentions of the applicants DESMOND OKENWA OGHENEMAIRA and JOSHUA OLOTU JIMAH at Ajeromi Divisional police Station between the 30th day of May, 2004 and 23rd August, 2004 by the Respondent is without justification, unconstitutional, unlawful and illegal.
2. The Respondents, their agents, officers, servants or privies are hereby restrained from re-arresting, intimidating the applicants.
3. I order the Respondents to jointly and severally pay the sum of N2,000,000.00 to the applicants as damages for the unlawful detention and humiliation at Ajeromi Police station.
4. I access the cost of this suit at N200,000.00.”

Dissatisfied with the aforementioned decision, the appellant lodged an appeal against it anchored on five grounds, pursuant to a notice of appeal dated and filed on 14/2/06. In compliance with the Rules of Court, both parties filed in their respective briefs. The respondents filed a preliminary objection to ground 3 of the grounds of appeal and the issue distilled therefrom, pursuant to a notice dated 28/2/07 and filed 5/3/07. The appellant’s brief is dated and filed on 13/12/06, while the reply brief is dated and filed on 22/3/07. The respondents brief is dated 28/2/07 and filed on 5/3/07. The respondents, adopted their notice of preliminary objection and arguments in support as contained in paragraphs 5.1 to 5.6 of the respondents brief. The appellant in response to the preliminary objection adopted the arguments contained on page 6 of the appellants reply brief. As for the main appeal, appellant adopted the appellants brief and the reply brief and urged this court to allow the appeal. The respondents on their part also, adopted their reply brief in urging the court to dismiss the appeal with substantial costs.

In the appellants brief of argument, four issues were identified for determination. The respondents on their part adopted the four issues as formulated by the appellant, with a minor amendment and panel beating to issue number three. For the purposes of this appeal, the issues as formulated by the appellant will be adopted in determining the appeal, namely:-

1. Whether the Lower Court has jurisdiction to hear and determine the Motion on Notice when it was clear that the said matter was not set down for hearing within 14 days after grant of leave to enforce fundamental rights? This issue is distilled from ground 1 of the Notice of Appeal.
2. Whether the learned Judge was right when he Suo Motu raised an issue as to why the Respondents were not charged to court and proceeded to hold that because the Respondents were not taken to court that there was a design to harass the Respondents? This issue is distilled from Ground 2 of the Notice of Appeal.
3. Whether the respondents made out a case for breach of their fundamental rights to warrant the judgment of the Lower Court in their favour?

This issue is distilled from ground 3 of the Notice of Appeal.

4. Whether the learned trial Judge acted judicially and judicially(sick) in awarding the sum of N2 Million (Two Million Naira) as compensation to the respondents and cost of N200,000 (Two Hundred Thousand Naira)?

This issue is distilled from Grounds 4 and 5 of the Notice of Appeal.”