Prof. Mazi Chris Okoro V. Commissioner of Police, Enugu State & Anor (2016)

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MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

This is an appeal against the decision of Enugu State High Court sitting at Enugu (hereinafter referred to as the lower Court) delivered by Hon. Justice I. A. Umezulike (OFR), C. J. on the 26th day of June, 2006. The applicant/appellant filed this suit for the enforcement of his fundamental rights with regard to his harassment, intimidation and unlawful seizure of his properties by the respondents/respondents, vide a notice of motion filed on the 25th day of February, 2005 wherein in his statement sought for the following reliefs:
(a)DECLARATION that the 1st Respondent?s seizure of Applicant?s certificates and academic gowns, upon the complaint of 2nd Respondent constitutes interference to the Applicant?s right under Sections 39 & 43 of Constitution of Federal Republic of Nigeria, 1999.
(b) DECLARATION that the Applicant in exercise of his right under Section 39 of the Constitution (supra) is entitled to run a continuing education institute with appurtenant powers to issue certificates thereto and confer award honoris causa.
(c)DECLARATION that the 1st

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Respondent?s arrest and detention of the Applicant, upon the complaint of the 2nd Respondent on allegation of award of fake certificates is a flagrant breach of Applicant?s right under Section 35 of the Constitution (supra).
(d)PERPETUAL INJUNCTION restraining the 1st Respondent, his superiors, subordinates, servants, agents or privies from further interference in the exercise of Applicant?s constitutionals rights.
(e)N10 million against the Respondents, jointly and severally for breach of Applicant?s constitutional rights.?

Despite the service of requisite processes filed in the matter on the respondents and ample opportunities afforded them, they failed and/or neglected to respond or file a counter-affidavit against the appellant?s notice of motion or defence to his claim. Consequently, the lower court entered judgment in favour of the appellant in terms of the reliefs ?sought in the motion paper?, except relief (e).

The appellant being dissatisfied with the refusal to grant relief (e), thereby appealed against that decision to this Court, vide a Notice of Appeal filed on 22nd day of

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September, 2006, wherein the appellant complained about the said judgment on the following grounds:
?A. The learned trial Chief judge erred in law when he failed to discharge the duty cast upon him having said ?I am therefore, of the view that they don?t wish to contest the suit. The Order of this Court is, therefore as prayed except relied (e) sought in the motion paper.? Notwithstanding the fact that in establishing the amount of damages claimed in a case where the evidence in Support is unchallenged, the burden on the Applicant/Cross-appellant is discharged upon minimum proof; occasioning thereby a miscarriage of justice.?

Pursuant to the said appeal, the appellant?s brief of argument was filed on the 10th day of June, 2015. The said brief was deemed by this Court as having been properly filed and duly served on the 25th day of February, 2016. The brief was prepared by R. C. Madu Esq. The 2nd respondent?s brief of argument was prepared by S. S. Liman of Nigeria Immigration Service, and was filed on the 10th day of January, 2013. It was deemed by this Court as having been properly filed and duly served on

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the 25th day of February, 2016.

The learned counsel to the appellant in the appellant?s brief of argument formulated the following issue for the resolution of this appeal:
?Whether the learned trial judge was right in law by refusing to award the N10,000,000.00 (Ten Million Naira) general damages claimed by the Applicant/Cross-Appellant in view of the Supreme Court decision in Odogwu vs. Attorney ? General, Federation (2000) 2 HRLRA 82 @ 86, Ratio 2.?

The learned counsel to the 2nd respondent in the same vein formulated a single issue for resolution in the determination of this appeal. The issue is as follows:
?Whether the Cross – Appellant has actually proved his case before the trial Court as required by the law to warrant the grant of the Reliefs sought, particularly relief No. 2 (e) in which he asked for (Ten Million) N10,000,000.00 against the Respondents, jointly and severally for breach of Applicant?s constitutional rights.?

It is instructive to observe here that the 1st respondent in the same vein as was done at the lower Court, neither cause an appearance to be entered on its behalf

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nor file any brief of argument before this Court. It is hereby presumed that he has admitted to be bound by the outcome of this appeal.

I have carefully analyzed the issue put forward by counsel to both parties for resolution in the determination of this appeal and I found them to be essentially the same. However, I am of the view that the appellant?s issue is better couched and more apt in content towards the determination of this appeal, thus the issue is thereby adopted.
ARGUMENT ON ISSUE
The learned counsel to the appellant contends that there is a clear distinction between the procedure for commencing and hearing of a suit filed under the ordinary writ of summons on one hand and originating summons, originating motion and/or notice of motion on the other hand. He continued by stating that a special procedure has been established by law as stipulated under the relevant Fundamental Rights, (Enforcement Procedure) Rules, 1979 for the enforcement of fundamental rights, and that the appellant has duly satisfied the relevant procedure. Thus, the respondents having failed to contest the suit, it should be deemed that the appellant has proved

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his case. Therefore, the appellant is considered under the law to be entitled to all his reliefs. He referred us to the case of Agbakoba v. The Director, SSS (1988) 1 HRCRA 252 @ 283-284.

The learned counsel submitted also that the respondents having been proved to have violated the constitutional rights of the appellant, that the appellant is entitled to award of damages to vindicate him, even if he has not suffered any pecuniary loss or damages. He referred to and relied on the cases of Eda v. Commissioner of Police (1981) 2 N.C.R. 414 @ 416, Odogwu v. Attorney General, Federation (2000) 2 H.R.L.R.A. 82; Okonkwo v. Ogbogu & Anor (1996) 4 S.C.N.J. 190 @ 207, among others. The learned counsel further submitted that, the essence of award of damages is to ensure that the injured party is somewhat given reparation for the wrongful act, and for all natural and direct consequences of the wrongful act, so far as money can compensate. He referred us to the case of U.B.N. Plc. v. Okoror  (2002) 10 NWLR (Pt. 774)1.

?Again, the learned counsel submitted that the respondents having been given sufficient opportunities to present their respective cases, or

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defence but they chose not to do so; that the learned trial judge ought to have deemed all the depositions in the appellant?s affidavit and other processes as having been admitted by the respondents, and the burden of proving the said averments is naturally discharged on minimal proof. He relied on the case of Power Airways Ltd. v. Olima (2005) 18 NWLR (Pt. 957) 224; and Oguma v. I. B. W. A. (1988) 1 NWLR (Pt. 73) 658 among others.

The learned counsel finally submitted that it would be tantamount to approbating and reprobating for the learned trial judge to decline from awarding general damages in the appellant?s favour, after he has held that the respondents have not offered any defense; which is not allowed in law. He relied on the case of Oruboko v. Oruene (1996) 7 NWLR (Pt. 462) 555 @ 576. He therefore urged this Court to resolve this issue in favour of the appellant, allow this appeal and grant the relief refused by the lower Court.

The learned counsel to the 2nd respondent in reply submitted that the general principle of law of evidence is that he who asserts must prove. He cited Section 135 – 137 of the Evidence Act. He contended,

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that from the records, the appellant neither adduced any evidence nor proffer any legal argument in proof of his case, thus the case should be resolved against the defaulting party (that is, the appellant). He relied on the cases of Onah v. Okenwa (2010) 7 NWLR (Pt. 1194) 512 andAjao v. Ademola (2005) NWLR (Pt. 913) 636. The learned counsel went further, to distinguish the present case from the case of Agbakoba v. Director SSS (1998) 1 HRLRA 252 @ 283. He maintained that the reliefs sought in the instant case are declaratory which could not be granted merely on the default of defence or on admission by the opposing party. Additionally, that the grant of such reliefs must be based on satisfactory evidence. He relied on the case of Momodu v. Olubodun & Ors. v. Oba Adeyemi Lawal & Anor. (2008) 12 SCNJ, 269. Finally, the learned counsel submitted that the case of Odogwu v. Attorney-General of Federation (supra) referred to by the appellant?s counsel is distinguishable from the instant case, as he alleged that the applicant in that case proved his claim including damages, unlike the appellant in the instant case. He thereby urged this Court to dismiss

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this appeal with substantial costs.

The main crux of this appeal lies in the refusal of the lower court to grant general damages in favour of the appellant, after holding that the appellant?s constitutional right was violated and/or breached by the respondents. Thus, all the contentions and/or submissions of the 2nd respondent?s counsel with regards to the fact that the appellant failed and/or neglected to prove his claim does not by any means form the basis of this appeal or emanate from the ground of appeal in this case. It is now well established that any issue(s) that do not find foundation in the ground of appeal together with all the argument in support goes to no issue. Thus, all legal submissions and authorities cited in support of the argument, that the appellant?s claim was not properly proved at the lower Court as beautiful as they may seem or sound are discountenanced as they form neither the basis of this appeal nor find root therein.

It is also instructive to point out here that, the respondents did not by any means or guise whatsoever appealed against the decision of the lower Court, thus, it is deemed in law that same

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is admitted and binding on them. The law is well settled that depositions in an affidavit which have not been categorically countered or denied by the adverse party; such depositions or facts are deemed admitted in law by the other party. See Nzeribe vs. Dave Eng. Co. Ltd. (1994) 8 NWLR (Pt. 361) 124; Omoregbe vs. Lawani (1980) 4 ? 5 SC 108.

The appellant?s complaint in this appeal is that the lower Court after holding that his fundamental rights have been violated and/or breached by the respondents; failed to award him any damages as compensation for his injury, and urged this Court to award the same. First, it is trite law that where a trial Court failed and/or neglected wrongfully to have awarded damages, an appellate Court could grant same, after finding or entering judgment in favour of the appellant. This position has been reiterated by the Supreme Court in the case of Onwuka v. Omogui (1992) 3 NWLR (Pt. 230) 393@ 417; (1992) LPELR – 2719, where His Lordship, Babalakin, JSC, stated as follows:
?Where, however the trial Court fails to consider the question of damages an appeal Court is entitled to proceed to assess the damages

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when it allow the appeal without necessary of referring the case to the trial judge for that exercise.?
Put differently, where a trial Court did not make assessment of damages, an appellate Court can make the assessment itself, if there exists on record enough evidence or sufficient materials on which the assessment can be based. See Olawale Sonibare vs. C. S. Soleye (2009) 4 ? 5 SC (Pt. 1) 1. Furthermore, His Lordship Nnaemeka-Agu, JSC, in his concurring judgment in the above cited case reiterated as follows:
?As such is the position, there is now no need for this Court or Court of Appeal to look at an issue of damages as if it were a sacred cow reserved for the Court of trial. The correct approach ought to be that unless an issue of credibility of witnesses as to damages arises in the proceedings, the appellate Court ought, on entering or affirming a judgment in favour of the plaintiff, to asses and award damages to which he is entitled.?

The above having been said, the next question that should be asked is that: Is the judgment of the lower Court affirmed in favour of the appellant? I have earlier observed that the

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respondents failed and/or neglected to appeal against the said judgment, thus, it is deemed in law to be admitted and binding on them, and I have no reason to hold otherwise here. Thus, the judgment could be held to have been affirmed by this Court in favour of the appellant. That being the case, then I am of the opinion and do agree with the learned counsel to the appellant that the learned trial Chief Judge having held that the appellant?s fundamental right was breached and/or violated by the respondents ought to have awarded damages in his favour to compensate or serve as a recompense for the said injured rights. This position has been affirmed by the Supreme Court, per Ogwuegbu, JSC, in the case ofOkonkwo v. Ogbogu (1996) LPELR ? 2486; (1996) 5 NWLR (Pt. 499) 420, wherein His Lordship stated as follows:
?Any trespass to the person, however slight, gives a right of action to recover at any rate nominal damages. Even where there has been no physical injury, substantial damages may be awarded for the injury to the man?s dignity or for discomfort or inconvenience. Where liberty has been interfered with, damages are given though he

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has not suffered any pecuniary damages. It is also not necessary for the plaintiff to give evidence of damages to establish his cause of action or to claim any specific amount of damages.?

The well known principle that evidence which goes one way is sufficient to satisfy the requisite standard on a minimal of proof, also applies to evidence relating to general damages. See U. B. A. Plc. vs. Achoru (1990) 9 ? 10 SC 115. Indeed, general damages are always made as a claim at large. The quantum need not be pleaded and proved. Invariably, the award is quantified by what in the opinion of a reasonable person is considered adequate loss or inconvenience which flows naturally, as generally presumed by law, from the act or conduct of the defendant. Thus, it does not depend upon calculation made and figure arrived at from specific items. See U.B.N. Plc vs. Ajabule & Anor. (2011) 12 SC (Pt. IV )1.

Guided by and having drawn strength from the authorities referred to above, I am thereby strongly inclined to award the appellant damages in the sum of N3,000,000.00 (Three Million Naira) as damages against the respondents jointly and severally for the

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wrong done to the appellant with the brazen demeaning and denigratingly outlandish infringement of his constitutional rights, perpetrated by the respondents. In the given circumstance, this appeal is hereby allowed as being meritorious. N100,000.00 costs is hereby awarded in favour of the appellant.

Other Citations: (2016)LCN/8643(CA)