Mr. Gabriel Jim-jaja V. Commissioner Of Police Rivers State & Ors (2012)
LAWGLOBAL HUB Lead Judgment Report
NWALI SYLVESTER NGWUTA, J.S.C.
This appeal is against the judgment of the Court of Appeal, Port Harcourt Division, delivered in Appeal No. CA/PH/313/2007 on 25th February, 2010.
Below is a summary of the relevant facts of the case. Appellant borrowed the sum of N1.4 million from the 3rd Respondent, a registered money lender. The loan granted on 15/2/2002 was to be repaid with the accruing interest on 15/3/2010. The loan was secured with a Certificate of Occupancy of the property – No.98, Egede Street, Mile 1, Diobu, Port Harcourt, Rivers State.
Appellant failed to repay the loan and the 3rd Respondent in his attempt to convert the security into cash, claimed that the Certificate of Occupancy was forged. He then wrote a petition to the Police and as a result the appellant was arrested but released on bail by the 1st and 2nd Respondents on his undertaking to repay the loan upon his release on bail. When he failed to honour his pledge to repay the loan, the 1st and 2nd Respondents arrested him again, but he was again released on bail, this time, at the instance of the 3rd Respondent.
Meanwhile, on his ex parte application, the High Court of Rivers State, presided over by Amadi, J, granted the appellant leave on 7/11/2002 to apply to enforce his fundamental right in terms of the reliefs set out in the Statement attached to the application for leave. The matter was adjourned for the motion on notice.
On 24/5/05, Kobani J, who heard the motion on notice held that the appellant’s fundamental rights have not been violated by the respondents, and accordingly dismissed the motion on notice. Aggrieved by the ruling, the appellant appealed to the Court of Appeal, Port Harcourt Division.
In its judgment delivered on 25/2/2010, the Court below held that “the 3rd respondent and the 1st and 2nd respondents worked in tandem at the peril of the appellant.” The Court vacated the ruling of the trial Court but went on to hold that damages could not be awarded as, according to the Court, the appellant did not pray for same.
The appellant appealed to this Court on the issue of award of damages. The lone ground of appeal is hereunder reproduced, shorn of its particulars:
“Ground of Appeal:
The learned Justices erred in law in holding as follows:… But in law it is not right for any Court of law to award a relief not sought as law Courts are neither charitable organisations not (sic) Father Christmas, Suffice it that the appeal is allowed…. I cannot award damages as none was asked.’ (See page 110-111 of the record).
In accordance with the rules and practice of the Court, the parties herein filed and exchanged briefs of arguments. In his brief filed on 12/4/2010, learned Counsel for the appellant formulated the following issue for determination:
“Was the Court of Appeal right to hold that Appellant as applicant did not seek or ask for damages and in any case from the available evidence on the records was the appellant entitled to be awarded exemplary damages”
In the joint brief of argument filed on behalf of the 1st and 2nd respondents, their learned Counsel raised a preliminary objection to the competence of the appeal. In the alternative, learned Counsel submitted the following issue for determination:
“Whether the Court below was right in refusing to award the Appellant damages on the ground that damages was not claimed.”
In his own brief of argument, learned Counsel for the 3rd Respondent also raised a preliminary objection to the competence of the lone ground of appeal and in the alternative urged the Court to determine:
“Whether the learned Justices of the Court of Appeal were right in law and upon the facts on record in not awarding exemplary or any damages of all to the Appellant after holding that his appeal was successful, upon the ground that he had not sought such damages from the Court.”
Learned Counsel for the appellant filed a reply to the preliminary objection and points of law in the 3rd Respondent’s brief. Arguing the lone issue in his brief, learned Counsel for the appellant referred to page 103 of the record and refuted the assertion by the Court below that the appellant did not ask for damages. He referred to s.6(6) (b)-(d) of the Constitution of the Federal Republic of Nigeria, 1999 and the case of Federal Minister of Internal Affairs v. Shugaba (1982) 3 NCLR 915 at 954/6 and submitted that the appellant approached the Court on the principle of ubi jus ibi remedium to seek redress for the violation of his right by the respondents.
Learned Counsel referred to the Statement in Support of facts in the High Court and said that the appellant prayed for the sum of N2 million as damages against the respondents for unlawful and illegal detention. He referred to paragraph 4 of the Notice of Appeal in the Court below for the reliefs appellant sought in that Court.
Learned Counsel argued that since the evidence led in proof of damages was not challenged or controverted, the appellant ought to have been awarded the damages he claimed and proved. He relied on Incar Nig Ltd v. Adeboye (1985) 2 NWLR (Pt. 8) 453 at 454 ratio 1. With reference to page 102 lines 22-25 and page 103 lines 1 – 4 of the record, learned Counsel said that the Court below found as a fact that the respondents violated the right of the appellant but failed to award damages on the erroneous finding that the appellant did not ask for damages for violation of his rights. He referred to Federal Minister of Internal Affairs v. Shugaba (supra); John Folade v. AG Lagos State (1981) 2 ACLR 771 at 784.
He referred to s.35(6) and s.36(1) of the 1999 Constitution of the Federal Republic of Nigeria and argued that on proof of a violation of his rights, the appellant was entitled to compensation and public apology from the respondents. He referred to and relied on Etiochin Nie Ltd v. Mbadiwe (1986) 1 NWLR (Pt. 4) p.47 and Odogu v. AG Federation (1996) 6 NWLR (Pt. 456) 508 at 519 (Paragraph f). Based on the above, learned Counsel for the appellant urged that Court to allow the appeal and award damages as claimed by the appellant.
Arguing his preliminary objection in his brief, learned Counsel for the 1st and 2nd respondents urged the Court to strike out the lone ground of appeal and ipso facto, the appeal, for being incompetent. He argued that the sole ground of appeal is of mixed law and fact and the appellant failed to seek leave of Court before filing same. He relied on s.233 of the 1999 Constitution.
In the alternative and in pursuit of the issue he framed for determination, he argued that the Court had no jurisdiction to determine an issue which did not arise from the judgment on appeal. He relied on Military Administrator of Akwa Ibom v. Obong (2001) FWLR (Pt. 60) 1456 at 1461; Ogbonnaya v. Adapalm Ltd (1993) 6 SCNJ 23; Oredoyin v. Arowolo (1889) 4 NWLR (Pt. 114) 172. He referred to the two grounds of appeal before the Court below and said that the award of damages was not an issue before that Court. He therefore submitted that the Court below was right to have declined to award damages to the appellant.
In his brief of argument, learned Counsel for the 3rd Respondent argued his preliminary objection, contending that the lone ground of appeal is of mixed law and fact and since it was filed without leave of Court, the same is incompetent. He relied on s.233(1)(a) and (g) of the 1999 Constitution as well as case law. He argued that since the sole ground of appeal is incompetent, the appeal itself is incompetent and ought to be struck out.
In the alternative, he argued the lone issue he formulated. He said that the Court is without authority to award what was not claimed. He relied on Oduwole & 3 Ors v. Prof. West (2010) 3-5 SC (Pt. 111) 183; Agip Nig Ltd & 3 Ors v. Ezendu & 9 Ors (2010) 1 SC (Pt. 11) 98; Balioli Nig Ltd v. Navcon Nig Ltd (2010) 5-7 SC (Pt. 11) 1.
Learned Counsel conceded that the appellant had sought N2 million damages against the Respondents for wrongful and illegal detention but added that the appellant did not complain about the refusal of the trial Judge to award damages and therefore the said refusal was not an issue before the Court below. He said that the appellant having been shown to have been fraudulent in his dealing with the 3rd respondent is not entitled to damages. He urged the Court to strike out the appeal as incompetent or in the alternative to dismiss same with costs as lacking in merit.
In his reply to the preliminary objection, learned Counsel for the appellant described same as misconceived. He referred to Ehinlanwo v. Oke & Ors (2008) 6-7 SC (Pt. 11) page 123 at 159 relied on by the 3rd respondent in his preliminary objection and argued that the case clearly established that an appeal on a ground of law arises where the ground of appeal shows that the trial Court or the appellate Court misunderstood the law or misapplied the law to the proved or admitted facts.
He submitted that the sole ground of appeal did not call for investigation the existence or otherwise of facts upon which the claim for damages is based. It neither challenged the finding of fact nor did it c all in question the evaluation of evidence by the trial Court. He invoked the provision of s.35(1) and (6) of the 1999 Constitution of the Federal Republic of Nigeria. He urged the Court to dismiss the preliminary objection for want of merit. This reply relates also to the similar objection of the 1st and 2nd Respondents.
In reply to the 3rd Respondent’s argument on the merit of the appeal he relied on Asemota v.Yesufu (1932) 3 WCLR 419 at 421 and Ransome-Kuti & Ors v. Attorney-General of the Federation & Ors (1985) 2 NSCC 879 at 893, 895 and 896 and argued that a remedy for violation of fundamental rights is outside the purview of ordinary action seeking damages within the province of common law and that the appellant’s claim to damages is based on the principle ubi jus ibi remedium. He argued that appellant’s claim for N2 million and evidence adduced went unchallenged.
He urged the Court to allow the appeal and invoke its powers under s.22 of the Supreme Court Act and Order 8 R.12 of the Supreme Court Rules to grant the relief sought by the appellant.
The respondents’ preliminary objections were taken along with the substantive appeal. A preliminary objection is a pre-emptive strike and its resolution will determine whether or not the appeal will be determined on the merit.
A ground of law, as distinct from a ground of mixed law and fact and a ground of fact, was clearly explained by Onnoghen, JSC in Ehinlanwo v. Oke & Ors (supra), an authority cited and relied on by both the 3rd Respondent and the appellant. In the said case, His Lordship held, inter alia that:
“A ground of law arises where the ground of appeal shows that the Court of trial or appellate Court misunderstood the law or misapplied the law to the proved or admitted facts.”
Where the substance of a ground of appeal reveals a misapplication of law to facts proved or admitted at the trial the ground of appeal is a ground of law and not of mixed law and fact or a ground of fact. See Ogbechie v. Onochie (supra) another authority relied on by the parties cited with approval in the later case of Osundele v. Agiri (2009) 12 MJSC (Pt. 1) 126 at 150. The facts are not in dispute. The purport of the sole ground of appeal and issue distilled therefrom is that in a proper application of the applicable law – s.35(6) of the Constitution (supra), the lower Court, having found as a fact that the respondents violated the fundamental right of the appellant ought to have awarded him damages.
I hold that the lone ground of appeal is a ground of law and not a ground of mixed law and fact as argued by the Respondents. The preliminary objection raised and argued in the 3rd Respondent’s brief and the similar objection raised and argued in the 1st and 2nd Respondents’ joint brief are devoid of merit and are hereby dismissed.
I have considered the three issues distilled, one each, by the appellant, 1st and 2nd Respondents and the 3rd Respondent, from the appellant’s lone ground of appeal. The issues are similar and I think the sub-issue in the appellant’s brief is more appropriate. It is hereunder reproduced as amended:
“… from the available evidence on the records and the finding of the lower Court was the Appellant entitled to be awarded exemplary damages…”
Be that as it may, I will restrict the issue to whether or not the appellant is entitled to award of damages. The single issue in this appeal falls within a narrow compass.
In the Statement of Facts in Support of his application, the appellant, as applicant in the trial Court, claimed inter alia:
”N2 million against the Respondents for unlawful and illegal detention.”
The claim was predicated on the fact that:
“Appellant’s arrest and detention since 23rd September, 2002 without any bail or charge is unlawful, illegal and ultra vires the powers of the Respondents.” (See pages 19-20 of the record)
The above facts were not disputed nor can it be said that the appellant was arrested and detained on the allegation of forged Certificate of Occupancy. His arrest and detention was predicated on his failure to repay the loan he obtained from the 3rd Respondent. If the appellant’s arrest and detention resulted from the allegation of forgery, which is a crime, the appellant could not have been released on bail on a mere undertaking to repay the loan, a civil matter.
This claim by the 3rd respondent is in conflict with the fact as stated in the 3rd Respondent’s brief. The criminal allegation of forgery was a ploy by the respondents to settle a purely civil matter – the recovery of the loan obtained from the 3rd Respondent by the appellant. It is unfortunate that the 1st and 2nd respondents at the instance of the 3rd respondent, on the pre of investigating a case of forgery, converted their office into a debt recovery outfit. There is no appeal against the finding of the lower Court that the Appellant’s right was violated by the Respondents thereby setting aside the contrary decision of the trial Court. In any case, the 3rd Respondent who did not cross-appeal nor did he file a Respondent’s notice cannot raise the issue of fraud which did not arise from the ground of appeal.
However, the Court below erred when it refused to award damages on the ground that the appellant did not claim damages for two reasons:
(1) Appellant claimed the sum of N2 million as damages against the respondents for unlawful arrest and detention. That claim, verified on affidavit evidence was not really contested. It is the law that evidence that is relevant to the issue in controversy and is admissible, admitted and not successfully challenged, contradicted or discredited is good and reliable evidence to which probative value ought to be ascribed and which ought to influence the Court in the determination of the dispute before it. See Chabasaya v. Anwasi (2010) 3-5 SC 208. Though the appellant did not specifically ask for exemplary damages for the violation of his right by the respondent, the Court below ought to have awarded him the damages he claimed and proved.
(2) Section 46 of the Constitution of the Federal Republic of Nigeria confers on a High Court special jurisdiction to deal with cases of violation of fundamental right of any person within the borders of this country. Section 46(2) provides:
“S.46(2): Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provision of this Section and may make such order, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter.” (Underlining mine for emphasis).
The Chapter referred to in the provision reproduced above is Chapter IV dealing with Fundamental Rights. Section 35(1) guarantees to every person his/her personal liberty. The appellant’s case does not fall within the exceptions numbered (a)-(f) in section 44(2) of the Constitution. The respondents did not attempt to bring their case within any of the exceptions. Section 35(6) provides:
“s.35 (6): Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person….”
A community reading of section 36(6) and 46(2).of the Constitution (supra) will give effect to the principle of ubi jus ibi remedium. By section 35 and 46 of the Constitution, Fundamental right matters are placed on a higher pedestal than ordinary civil matters in which a claim for damages resulting from a proven injury has to be made specifically and proved. Once the appellant proved the violation of his fundamental right by the respondents damages in form of compensation and even apology should have followed.
In my view and with profound respect to their Lordships, the Justices of Appeal, erred when, having determined that the respondents violated the fundamental right of the appellant, they declined to award damages because none was claimed. I have demonstrated that the appellant claimed N2 million as damages and even if the appellant did not so claim, he is entitled to compensation on proof of violation of his right by the respondent pursuant to s.35(6) of the Constitution.
Having rightly held that the appellant’s fundamental right was violated by the Respondents the court below was wrong to have denied him damages by relegating him to the status of a panhandler approaching the Court for a handout.
In conclusion, I allow the appeal and pursuant to s.22 of the Supreme Court Act and Order 8 r.12 of the Supreme Court Rules, I order the Respondents, jointly and severally to pay to the appellant the sum of N2 million as damages/compensation for a violation of his fundamental right in arresting and detaining him unlawfully. No order as to costs.