Akwa Savings and Loans Ltd. V. Ime Wilson Udoumana & 2 Ors. (2009)
LawGlobal-Hub Lead Judgment Report
M. A. OWOADE, J.C.A.
This is an appeal against the judgment of I.N.B. Isua, J. delivered on 17th day of March 2005 at the Akwa Ibom State High Court sitting at Uyo.
The 1st Respondent (Ime Wilson Udoumana) as the Applicant before the High Court filed an action on 10/7/2003 under the Fundamental Rights (Enforcement Procedure Rules) 1979 against the Appellant and the two other Respondents as Defendants to the action.
On 14th July, D.E. Okon, J. of the Akwa Ibom State High Court granted leave to the Applicant to apply to enforce his Fundamental Rights and the case was adjourned to 23/7/2003 for hearing of Motion. The reliefs sought by the 1st Respondent/Applicant from the Statement of facts attached to his motion on Notice are as follows:
(a) A Declaration that the use of the 2nd and 3rd Respondents by the 1st Respondent to harass, intimidate, arrest and detain the Applicant in order to recover an alleged loan that was not granted to the Applicant is unlawful, illegal and unconstitutional.
(b) The payment of the sum of N500,000.00 by the Respondents jointly or severally to the Applicant as damages for the infringement of the Applicant’s Fundamental Rights to personal liberty and freedom of movement by the Respondent.
And the grounds on which the Applicant’s reliefs were sought are:
(a) The transaction between the Applicant and the 1st Respondent is civil in nature with no intention on the part of the Applicant to defraud, deceive and cheat the 1st Respondent.
(b) The use of the 2nd and 3rd Respondents by the 1st Respondent to recover a loan she never granted to the Applicant is a cover up and intended to defraud, deceive and cheat the Applicant.
(c) The employment of the 2nd and 3rd Respondents by the 1st Respondent to harass, intimidate, arrest and detain the Applicant is irrational, oppressive, repressive and excessive abuse of power of the Police and this has breached the Applicant’s Fundamental Rights as entrenched under Sections 35 and 41 of the Constitution of the Federal Republic of Nigeria 1999.
The facts of the case are as follows:
The Appellant who was 1st Defendant before the lower court is a Financial Institution. The Applicant (now 1st Respondent) was one of the beneficiaries of the Akwa Ibom State Government Life Enhancement Programme Facilitated by the Appellant bank. The Appellant bank was to grant a loan of N400,000.00 to the Applicant and also to other such beneficiaries of the Programme to enable them purchase equipment. After the Applicant/1st Respondent had complied with the conditions for the grant of the loan, the Appellant unilaterally decided to buy equipment for the Applicant instead of giving the loan in cash as originally intended. The Applicant discovered that the Appellant gave him obsolete equipment. As a result, the Applicant could not repay the Appellant’s loan as quickly as agreed upon. The Appellant then caused the Police to arrest and detain the Applicant/1st Respondent on a Report lodged to the Police that is the 2nd and 3rd Defendants/Respondents for the offence of false pretence. Hence, this action, under the Fundamental Rights (Enforcement Procedure Rules) 1979. The Appellant, despite being served with the processes of the court refused or neglected to take any step to defend the action at the trial court and did not appear before the trial court throughout the proceedings.
On 17th March, 2005, the learned trial Judge I.M.B. Isua J. delivered a considered judgment which is contained at pages 40 – 44 of the printed record. Therein, the learned trial Judge exonerated the Police that is, the 2nd and 3rd Defendants/Respondents from responsibility at page 43 as follows:
“The Applicant has alleged and it has not been disputed that the 1st Respondent complained the Police alleging that the Applicant had obtained the sum of N400,000.00 from her under false pretence obtaining property under false pretence is a criminal offence, which the Police are bound to investigate. The arrest and detention of the Applicant for one day in that circumstance can, therefore, not be said to be without reasonable cause. The 2nd and 3rd Respondents, in my view are therefore not culpable in this regard since to arrest an individual on reasonable suspicion having committed a criminal offence does not amount to a breach of that individual’s Fundamental Right …”
Starting from the same page 43 to page 44 of the record the learned trial Judge however found the 1st Defendant/Appellant responsible and liable for breaching the Applicant’s/1st Respondent’s Fundamental Rights.
“The 1st Respondent (Defendant) breached that right by causing the arrest and detention of the Applicant when the Applicant had not committed any criminal offence and there was no reasonable cause to suspect that he had committed such offence. He had at most merely defaulted in the repayment of a loan, a wrong, which was definitely civil and not criminal. This form of abuse is becoming so common in our society today. It seems to me that the court must make an effort to curb this tendency.”
The learned trial Judge concluded:
“In conclusion, I hold that the use of the 2nd and 3rd Respondents by the 1st Respondent to harass, arrest and detain the Applicant in order to recover an alleged loan whether granted or not granted to the Applicant is unlawful, illegal and unconstitutional. For infringing on the Applicant’s Fundamental Right by an oppressive use of the Police against him and thereby exposing him to distress and danger (on account of his asthmatic condition) I hereby order that the 1st Respondent should pay the sum of N300,000.00 to the Applicant as damages. This amount is awarded against the 1st Respondent to teach her to respect the Fundamental Rights of other persons …”
As against this judgment, the 1st Respondent – Akwa Savings and Loans Limited filed an appeal before this court on 4/5/2005.
The Notice of Appeal contains two grounds of appeal.
The Amended Appellant’s brief of argument was filed on 24/4/2008 while the 1st Respondent’s brief of argument was dated and filed on 14/6/2007.
Learned Counsel for the Appellant formulated two issues for determination.
- Whether the suit was properly constituted in view of the fact that the officers of the Appellant Bank who lodged the report to the Police were not made parties to the suit.
- Whether the Appellant being an artificial person can breach the Fundamental Human Rights of the Applicant.
The 1st Respondent contends that the two issues submitted by the Appellant are interrelated and interwoven and that there is no marked demarcation between the two issues.
Learned Counsel for the 1st Respondent submitted that the singular issue for determination is:
Whether or not the Fundamental Rights entrenched in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria could be enforced against the Appellant, a private limited liability company.
It is my considered opinion that the learned Counsel for the Respondent was right yet for some other reasons to say that there is only one issue for determination in this appeal. I have carefully gone through the record of this appeal and found that Appellant’s Ground 1 on which Issue No.1 was based did not arise from the judgment of the lower court.
Ground 1 of the Appellant’s Notice of Appeal reads:
GROUND 1 ERROR IN LAW
The learned trial Judge erred in law in assuming jurisdiction to entertain the case when the proper parties were not before the court.
PARTICULARS OF ERROR
- The gist of the case is that 1st Respondent made a complaint to the 2nd and 3rd Respondents thus causing the arrest and detention of the Applicant.
- The 1st Respondent is a limited liability company and cannot act except through natural persons like its Directors.
- The natural persons who reported the Applicant to the Police ought to have been made parties to the suit, as the 1st Respondent cannot act being an artificial person.
None of the parties in this case and to this appeal raised any question of jurisdiction and/or joinder of parties at the court below. No paragraph of the four page judgment (pages 40 – 45 of the record) delivered by the court contains anything on jurisdiction and/or joinder of parties. It is clear therefore that Appellant’s ground 1 dealing with joinder of parties and jurisdiction of the court did not arise from the judgment of the court.
It is trite law that a ground of appeal which does not arise from the judgment of a court founded on issues joined by the parties is incompetent and cannot stand. Amobi vs. Nzegwu (2005) 12 NWLR (Pt. 938) 120 C.A, Agbi vs. Ogbeh (2005) 8 NWLR (Pt. 926) 40 C.A.
Consequently, the Ground No. 1 in the Appellant’s Notice of Appeal is incompetent and accordingly struck out. I need not add that Appellant’s Issue No. 1 which is not based on any ground of Appeal is also incognisable, incompetent and accordingly struck out. This is because, issues for determination to be competent need to arise from the grounds of appeal. WEMA Bank Plc vs. Onafowokan (2005) 6 NWLR (Pt. 921) 410 C.A, Obiekwe vs. Obi (2005) 10 NWLR (Pt. 932) 60 C.A, K.T.P. Ltd. vs. G. & H (Nig.) Ltd (2005) 13 NWLR (Pt. 943) 680 S.C.
In relation to the single issue left for the Appellant, learned Counsel for the Appellant has submitted that the Appellant bank being an artificial person cannot breach the Applicant’s Fundamental Rights. And that the learned trial Judge was wrong to have held that:
“In making a false complaint against him and causing his arrest and detention the 1st Respondent has breached the Applicant’s Fundamental Right to personal liberty, which right had been guaranteed by Section 35(1) of the Constitution.”
A Corporation said Appellant’s Counsel is an abstraction having no mind or body of its own.
Relying on the cases of Trenco Nig Ltd. vs. African Real Estate Ltd. (1978) 1 LRN 146 at 153, and the dictum of Viscount Haldane L.C. in the case of Lennard’s Carrying Coy. vs. Asiatic Petroleum Coy Ltd. (1915) A.C. 705 at 713 – 714, Appellant’s Counsel submitted that companies, corporations, which are not natural persons cannot enforce any aspect of the Fundamental Rights guaranteed in Chapter IV of the Constitution. And, conversely they cannot also be said to infringe or breach any of these provisions against any person as is the instant case.
In response, the 1st Respondent’s Counsel submitted that the issue whether or not a limited liability company could be liable for infraction of Fundamental Rights entrenched under Chapter IV of the Constitution had long been settled. Learned Counsel for the 1st Respondent referred to the cases of Uzoukwu vs. Ezeonu II (1991) 6 NWLR (Pt. 200) 708 and Kelvin Peterside vs. IMB (1993) 2 NWLR (Pt. 278) 710 and submitted that the provisions in Chapter IV of the Constitution are enforceable not only against the state and its apparatus, but also against private persons.
I do agree with the learned Counsel for the 1st Respondent that it is now a settled position of our law that the provisions in Chapter IV of the Constitution are enforceable not only against the State and its apparatus but also artificial persons as the Appellant in the instant case.
In Chief Omu Uzuokwu and 5 Others vs. Igwe Chukwudebelu Ezike Ezeonu II and 8 Others (1991) 6 NWLR (Pt. 200) 708 at 764, Mamman Nasir P.C.A who read the leading judgment of the court had this to say:
“Fundamental Rights have always been seen as a prevention of dictatorship and despotism Board of Education vs. Barnette (1943) 319 U.S. 624 and the earlier case of Citizens Savings and Loan Association vs. Topeka (1874) 20, Wall 655 at 672. In both the Indian Constitution and our own Constitution certain Fundamental Rights provisions have been so worded as to be a guarantee against both the state and all its agencies and against actions by individual person … This has been held to be a protection both against the state action and the action of an individual person. Bailey vs. Alabama (1911) 219 U.S. 207. In view of the wording of our Constitution which states that “every individual is entitled to respect for the dignity of his person.” I am of the strong view that this right is given to any individual whether a Nigerian citizen or an alien and this right extends to the actions of not only the State but also the actions of all government agencies and private individuals.”
On this view, Niki Tobi JCA (as he then was) was more emphatic in the case of Kelvin Peterside vs. International Merchant Bank (Nigeria) limited (1993) 2 NWLR (Pt. 278) 712 at 729 – 730, first at page 728, he said:
“And what is more the generic wording of Section 42 of the Constitution lends credence to the position taken that the rights could be enforced against a private individual, depending upon what right is involved and in what circumstance or situation. Section 42(1) (now Section 46) merely empowers or enjoins any aggrieved person to seek redress in the High Court of a State. The subsection does not say that the action can only be brought or instituted against government. In other words, the subsection is silent as to the Defendant of the action commenced by the aggrieved party.”
And at page 730:
“I have taken the trouble to examine this issue in some restricted detail because of the unfortunate notion that Chapter IV cannot be enforced against private individuals. Frankly, I do not know what has given rise to this kite which flied over the horizon of an otherwise clear position of the law …”
Truly, and as was pointed out by Niki Tobi JCA (as he then was) in the Peterside vs. IMB case (supra), not all the provisions under Chapter IV of the Constitution could be logically applicable as against private individuals. There is however no doubt that an action would lie against a private individual or as in the instant case an artificial entity a private limited liability company for the breach of the provisions of the Right to personal liberty in Section 35 of the 1999 Constitution. The suggestion by the learned Counsel for the Appellant that a company is an abstraction and does not have a mind of his own for this purpose if anything supports the position of the Applicant/1st Respondent because there were no issues joined between the parties in the lower court as to whether or not the report to the Police which formed the basis of the Applicant’s/1st Respondent’s action was not done by the Appellant. For these reasons the sole issue for determination in this appeal is resolved as against the Appellant.
The appeal lacks merit and it is accordingly dismissed. There shall be N10,000.00 costs in favour of the Applicant/1st Respondent as against the Appellant. And that shall be the judgment of the court.
Other Citations: (2009)LCN/3145(CA)
