Akwa Savings and Loans Ltd. V. Ime Wilson Udoumana & 2 Ors. (2009)

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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 …”