Afribank Nigeria Plc V. Mr. Mufutau Adigun & Anor. (2008)
LawGlobal-Hub Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.C.A.
This is an appeal against the judgment of the decision of the Federal High Court sitting at Akure giving judgment in favour of the Applicant/Respondent.
At the lower court, the Respondent sought for and was granted leave to enforce the following claims:
“1. CLAIM
(a) A DECLARATION that the issue or transaction which subsisted between the Applicant and the 2nd Respondent is fundamentally civil in nature and content and therefore not subject to criminal law investigation and proceedings.
(b) A DECLARATION that the Applicant has not committed any offence known to law.
(c) A DECLARATION that the arrest and Detention of the Applicant by the Respondents at special enquiries bureau (SEB) State Police Headquarters, Akure from the 4th day of May, 1999 till the 7th day of May 1999 and his continued harassment and intimidation by the Respondents is wrongful, illegal and unconstitutional as it violates his fundamental rights to liberty, and fair hearing as enshrined and guaranteed under Section 34, 35 and 36 of the constitution of the Federal Republic of Nigeria.
(d) AN ORDER OF PERPETUAL INJUNCTION restraining either jointly or severally whether by themselves, their servants, agents or privies or otherwise however from harassing, arresting, detaining and interfering with the personal liberty of the Applicant.
(e) N5,000,000.00 as general and exemplary damages against the Respondents jointly and severally for the harassment, inhuman treatment, illegal arrest and detention of the Applicant.”
The facts that led to the infringement of the Fundamental Human Rights of the Applicant as alleged by the Applicant in the Affidavit in support of his application (see pages 10- 16 of the Record of Appeal) are as follows:-
a. That he is a customer of the 2nd Respondent at its Akure Main Branch, Akure, Ondo State and that in the course of his banking relations he became indebted to the 2nd Respondent.
b. That the 2nd Respondent reported him to the 1st Respondent and instigated the 1st Respondent to arrest him on 4th May 1999.
c. That the threats to his freedom made him sell his cocoa at a loss of N3 million.
d. That his arrest and detention made his customers flee from him and refused to supply him cocoa beans for fear of the cocoa beans being seized by the Respondents.
e. That the Applicant went to the regional office of the 2nd Respondent to negotiate a new facility when the Respondent made another attempt to arrest him on Monday 5th June 2000, but fortunately he had traveled to Lagos and one JOSHUA ADETUNJI (the Deponent to the supporting Affidavit) and the father of the Applicant, were arrested.
The 2nd Respondent filed a counter affidavit and denied reporting the Applicant to the Police or instigating his arrest or detention (see pages 18 – 29 of the Record of Appeal). The 2nd Respondent went further to state the facts and relationship between it and the Applicant as follows:-
a. That the Applicant was customer at its Akure main Branch, Akure, Ondo State and in the course of his banking relations he colluded with one of its Managers one Prince C. A. Adedinsewo who granted him unauthorized overdraft facilities.
b. That the said Manager perpetrated the fraud with several customers including the Applicant and the 2nd Respondent wrote a petition to the 1st Respondent in respect of the fraudulent disbursements by the said Manager. This was by letter dated 26th May 2000 and copy was attached and marked as EXHIBIT F in the counter affidavit of the 2nd Respondent. The petition was expressly requested for the apprehension and investigation of the said Prince C. A. Adedinsewo. Paragraphs 4 and 5 of EXHIBIT F read thus:
“It was discovered that some irregular malpractices were perpetrated by the said Prince C.A. Adedinsewo which are yet to be fully ascertained.
The bank is apprehensive that if the said staff isn’t apprehended immediately, the likelihood of recovery is quite remote.”
c. The 2nd Respondent deposed to the fact that the Applicant was not arrested or detained by the 1st Respondent prior to the filing of the application for enforcement of fundamental right. The 2nd Respondent also deposed to the fact that the time within which the application ought to have been brought had lapsed.”
At the lower court the present Appellant was the 2nd Respondent while the Commissioner of Police, Ondo State was the 1st Respondent. Now in this appeal the Applicant at the lower court is the 1st Respondent and the Commissioner of Police Ondo State is the 2nd Respondent.
I will hereafter refer to Afribank Plc as the Appellant and the Mufutau Adigun as the 1st Respondent.
On 16/10/08 when this appeal came up for hearing both Respondent were absent in court and unrepresented even though they had been served. Neither of them had filed any brief of argument. Earlier on 1/7/08, the, motion on notice to set down this appeal for hearing and giving judgment on the Appellant’s brief alone had been heard and granted. On 22/5/07 the motion to hear the appeal on Appellant’s brief for failure of Respondent to file their brief was heard and granted by this court. Thus this appeal is an undefended one.
The Appellant’s counsel identified 3 issues for determination as set out below:-
i. “Whether the act of infringement of fundamental right complained of by the Applicant was of a continuous nature and not caught by limitation of time within which the application for enforcement of right ought to have been brought?
ii. Whether the Appellant can be held liable for the act done by an employee against whom the Appellant made a criminal allegation, when the alleged act of infringement of fundamental human right was done by the employee before the petition by the employer?
iii. Whether the trial court can resolve conflicting evidence in the affidavit without calling oral evidence in an application for enforcement of fundamental human rights?
Learned counsel argued on issue 1 that the learned trial Judge was wrong to have arrived at the conclusion that the detention of the 1st Respondent was of a continuous nature and not caught by limitation of time within which to bring an action for enforcement of his fundamental human rights.
Learned Appellant’s counsel argued that the learned trial Judge did not take into account pertinent facts before arriving at a finding that the infringement was a continuing one. He argued that the original arrest of the 1st Respondent and upon which the event that is his action for the enforcement of the alleged infringement of his fundamental human right was based occurred between 4th May – 7th May 1999. That the Appellant wrote a petition against one of its former Managers Prince C. A. Adedinsewo to the 2nd Respondent by letter dated 26th May 2000, Exhibit F.
Counsel argued that at the time of the initial arrest in May 1999, the Appellant was unaware of what was going on because at that time the Appellant was yet unaware of the fraud and exchanged correspondence with the 1st Respondent as a bona fide customer with an overdraft to whom it presented a repayment proposal. Counsel argued that the action was brought well over a year after the alleged infringement, that the Appellant was not involved in the alleged infringement of 4th – 7th May 1999 by the 2nd Respondent and that by the time the Appellant reported the case of fraud by their manager to the 2nd Respondent in May 2000, the infringement had ceased.
He submitted that the cause of action arose on 4th May and ended 7th May 1999. Since the action was brought under Or. 1 r. 3(1) of the Fundamental Human Rights Enforcement Rules, leave to enforce fundamental rights must be brought within 12 months. Counsel argued that the action being statute barred must be dismissed. He cited MARKEY v. TOLWORTH HOSPITAL (1900) 2 QB 454; CRUMBIE v. WALLSEND (1891) 1 QB 503; TAFIDA v. ABUBAKAR (1992) 3 NWLR Pt. 230 Pg. 511 at 520; EGBE v. ADEFARASIN (1987) 1 NWLR Pt.47 Pg.1.
My Lords, the learned trial Judge on pg. 9 of the judgment and page 84 of the record of proceedings held as follows:-
“That is the position of the law but what will be the position of the act complained is a continuous one. Although the first act of arrest and detention took place in May 1999 the Applicant was still being harassed and intimidated by the Respondents. The harassment and intimidation are continuous and as matter of fact this led to the actual arrest and detention of the Applicant on 19/6/2000 inspite of the order to this court of 29/6/2000 directing the Respondents to stay action in the matter pending the determination of the substantive motion.”
Or 1 r 3(1) of the Fundamental Human Rights Enforcement Rules provides as follows:-
“Leave shall not be granted to apply for an order under these rules unless the application is made within twelve months from the date of the happening of the event, matter, or act complained of, or such other period as may be prescribed by any enactment or, except where a period is so prescribed, the delay is accounted for to the satisfaction of the court or Judge to whom the application for leave is made.”
The Rules were made pursuant to S. 46(1) of the 1999 Constitution. How do we determine whether an action was limited to a specific period of time or was of a continuous nature? The Black’s Law Dictionary defines continuous to mean:
“Uninterrupted, unbroken, not intermittent or occasional so persistently repeated at short intervals as to constitute virtually an unbroken series. Connected, extended or prolonged without cessation or interruption of sequence.”
Page 1 of the record of proceedings shows the motion ex parte for leave. Paragraph c of the motion ex parte is the originating process and which is the same as paragraph c of the motion on notice. Leave was sought and obtained for “a declaration that the arrest and detention of the Applicant by the Respondent at Special Enquiries Bureau SEB Headquarters, Akure from the 4th day of May 1999 till the 7th day of May 1999 and his continued harassment ………..”
The application was dated 7th of June 2000. In the affidavit in support of the application for leave, paragraph II shows that the attempt to rearrest the Respondent was made on 5th June 2000. In the statement of the applicant contained on pages 5 – 6 of the record there is also absolutely nothing to show that after he was arrested and detained between 4th – 7th May 1999, and his cocoa beans were sold before he was released, there was any other incident of arrest or detention between 8th May 1999 and 7th May 2000 a period of one year. The next time he was threatened with arrest was 5th June 2000. The issue of limitation to the effect that the leave sought was statute barred was raised in the Appellant’s counter affidavit in paragraph 20.
I agree with the learned Appellant’s counsel that from the motion for leave, the cause of action arose in May 1999. The 1st Respondent’s affidavit for leave and later the motion on notice did not indicate any other specific episode of harassment, intimidation or imprisonment between May 8th 1999 and June 2000 because his affidavit shows clearly he was trying to negotiate the payment of his indebtedness and was in accord with the Appellant. There is thus an interrupted period in which there cannot be said that there was continuous harassment of the 1st Respondent. The cause of action and the time it accrues is the bedrock of the entire action. Where time is stipulated for doing a thing, it must be done within that period. I agree that the leave sought was predicted on the arrest of the 1st Respondent on May 4th 1999. That in my view was when the cause of action arose. The phrase “cause of action” comprises of every fact which is material to be proved to enable the party to succeed. See DR.THOMAS v. MOST REV OLUFOSOYE (1986) 1 NWLR PT. 18 PG 669 AT 671- 673. It is the set of facts which the law will recognize as giving the party right of action. See AG FEDERATION & ORS v. ALH. ATIKU ABUBAKAR& ORS (2007) 4 SCNJ 456 and EGBE v. ADEFARASIN cited supra by Appellant’s counsel, EMIANTOR v. NIGERIA ARMY (1999)9 SCNJ 52. The set of facts that gave rise to a claim in this case at hand was the arrest and detention of the 1st Respondent by the 2nd Respondent between 4th – 7th May 1999. That was when time started to run for the purposes of determining whether the action was brought within the time stipulated by law. In this case since the cause of action arose on 4th may 1999 when the 1st Respondent was arrested, time is calculated between that day when the alleged wrongful act was committed and the day the action was instituted which is 7th June 2000 – a period of more than one year. See AMUSAN v. OBIDEYI (2005) 6 SCNJ 96, NPA PLC, v. LOTUS PLASTICLIMITED & ANOR (2005) 12 SCNJ 165.
Learned trial Judge made an interesting point which I think calls for our opinion in the circumstances of this case. His Lordship opined as follows at pg 85 of the record.
“See also Section 46(1) of the 1999 Constitution which provides as follows-
“Section 46(1) Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High court in that State for redress.”
This provision takes care of the past, present and future. From the affidavit evidence of the Appellant the act of arrest, detention, harassment and intimidation are of continuous nature. For that reason I hold the view that the Applicant’s case is not caught by Order 1 Rule 3(1). It is not statute barred.
By Section 46(1) of the 1999 Constitution any person who alleges that any of the provisions of Chapter 10 of the Constitution has been, is being or likely to be contravened in relation to him can apply to a High Court for redress. In the instant case Applicant is complaining against his arrest and detention. He also wants to stop the Respondent from further acts of arrest and detention. It is therefore proper to come to court the way he did i.e by applying under the Fundamental Right Enforcement Procedure Rules”
As the learned trial Judge aptly puts it, S. 46( 1) takes care of the past, present and the future. My humble view is that the claim made out by the 1st Respondent was one of compensation for unlawful detention in the past. In which case the rules provide that such a claim must be brought within 12 months. Where the Applicant is in custody which would be a present infringement, he could ask that the Respondent should be ordered to cease and desist from further infringement on his liberty and claim damages. Where the infringement is anticipated and the action is by way of a preemptive one, the issue of limitation or claim for damages suffered does not arise. Paragraph 12 of the 1st Respondent’s reply to the Appellant’s counter affidavit at the lower court, state that the 1st Respondent was again arrested by the 2nd Respondent and detained between 19th – 21st June 2000 after the order for leave had been granted. Paragraph 12 of the affidavit in support of the application for leave states that the deponent and the 1st Respondent’s father were arrested on 5th June 2000 and asked to produce the 1st Respondent on 9th June. A close look at the declarations sought by the 1st Respondent shows in my view that the past infringement had been caught by limitation, there was no present infringement, but an anticipated infringement at the time the application for leave was granted. With the greatest respect to the learned trial Judge, I cannot agree with the purport of his view that the provision of S.46(1) of the Constitution is to obliterate any difference in the incidences whereby a person may seek refuge from the court for infringement of the rights to the extent that any procedural law imposing limitation would be in violation of the constitution. Thus the leave granted should have been limited to the 1st Respondent’s claim under leg d.
Normally it is not the function of this court to appraise evidence or make findings of facts. See SOKORO v. KPONGBO (2008) 2 SCNJ 36. The obvious presumption of correctness of the lower court’s findings that there was a continuous and unbroken infringement of the 1st Respondent’s rights has to be reversed in this case. The trial court had no jurisdiction to grant leave under all the heads of claim.
I am of the humble view that the initial leave to enforce the claims for declaration as stated was granted in violation of Or. 1 r 3(1) of the Fundamental Human Rights Enforcement Rules. I am of the view that the first issue be resolved in favour of the Appellant.
The 2nd issue is whether the Appellant can be held liable for the act done by an employee against whom the Appellant made a criminal allegation, when the alleged act of infringement of human rights was done by the employee before the petition by the employer.
Learned Appellant’s counsel argued that the learned trial Judge did not determine who arrested the 1st Respondent on 4th May 1999 or in June 2000 or whether the Appellant as an organization influenced or was in any way involved in the arrest of the 1st Respondent before holding it liable for his arrest and detention.
He argued that it is settled law that an employer cannot be held liable for an employee’s performance of an act which he was not employed to perform. Such an act would be outside the scope of his employment. He cited MENIRU v. IGWE (1963) Vol. 3 NSCC Pg.4.
Appellant’s counsel also argued that the position of the learned trial Judge at pg. 85 of the record that the issue of fraud should be proved beyond reasonable doubt is immaterial to the determination of the claim before him.
Let us closely examine the course of events in this case. The 1st Respondent’s affidavit conceded that he was granted over draft facilities but could not repay due to adverse market forces of cocoa his main business. He was arrested according to him by the Appellant in May 1999. The Appellant filed a counter Affidavit on pg. 18 of the record. Paragraphs 10 – 15 of the counter affidavit is to the effect that the Appellant’s employee and bank manager had previously granted irregular overdraft facilities to the 1st Respondent and several others. In a bid to hide this and force the 1st Respondent to pay up, the Appellant’s employee and bank manager Prince Adedinsewo was the one who got the 1st Respondent arrested and detained in May 1999.
I have also read the further affidavit of the 1st Respondent to the effect that the Appellant’s official vehicle was used to facilitate the arrest of the 1st Respondent in May 1999.
I have read all the process filed by the parties at the lower court and with the greatest respect, I cannot agree with the learned trial Judge in respect of his finding that the Appellant should be liable for the detention of the 1st Respondent in May 1999. The learned trial Judge should have made a specific finding on whether or not the Appellant should be held vicariously liable for the arrest of the 1st Respondent. This issue was one in which the parties gave contradictory affidavit evidence. This issue is also the gravamen of issue 3.
The Appellant’s counter affidavit had attached to it exhibit F, the petition sent to the police. It is on pg. 28 of the record. Appellant’s Exhibit F is to the effect that its Bank Manager Prince C.A. Adedinsewo had made some substantial fraudulent disbursements to certain customers of the bank. The petition stated the names of 12 customers the 1st Respondent being the first on the list with the largest sum of N9,022,250.64. The Appellant then urged the police in Exh. F to apprehend their employee to forestall his planned escape from the country.
Let us even accept that the manager was responsible for the arrest of the 1st Respondent in May 1999. The law is that for an employer to be liable for the acts of an employee it would be deemed to be done in the course of employment if it is a wrongful act authorized by the master or a wrongful and unauthorised mode of doing some act authorized by the master. See UBN v. AJAGU (1990) 1 NWLR Pt. 126 Pg. 328 AT 343; AWACHIE v. CHIME (1990) 5 NWLR Pt. 150 Pg. 302 AT 309
I do not think it can be said that the arrest and prosecution of offenders is within the ordinary routine of banking business nor can it be said that the initiation of the arrest of the 1st Respondent in May 1999 was in the course of employment of any of its officials.
I must say that I agree with the Appellant’s counsel that given the claims sought by the 1st Respondent and the extent to which a citizen’s fundamental human rights can be enforced in relation to purely contractual transactions, the issue of whether fraud was proved by the Appellant or not was not a proper consideration before the court. With the greatest respect, the determination of whether a citizen’s fundamental human right has been infringed does not entail a finding of whether or not the burden of proof in a case of fraud had been discharged. That finding should be left for the appropriate court seized with the jurisdiction of a criminal trial.
In the circumstance the 2nd issue is resolved in favour of the Appellant.
Issue 3 is whether or not the learned trial Judge should have called oral evidence to resolve conflicting affidavit evidence especially in relation to who and when the Appellant reported the 1st Respondent to the police and caused his arrest and detention. Learned Appellant’s counsel argued that there was a conflict between the respective affidavit of the parties in a material particular with regard to the fact of who instigated the 1st Respondent’s arrest and subsequent detention by the Police. He submitted that it is settled law that where there is conflict in the affidavit of the parties the court is bound to call oral evidence to resolve the conflict. He cited FALOBI v. FALOBI (1976) 9 – 10 SC 1 AT 15; GARBA v. SHEDA INT. LTD (2002) FWLR Pt. 113 P. 245 AT 260; NWOSU v. IMO STATE ENV. SAN. AUTH. (1990) 2 NWLR Pt. 135 at 688; UNIVERSITY PRESS LTD v. I.K. MARTINS LTD. (2000) FWLR Pt. 5 Pg. 722 at 736.
That of course is the general position of the law settled in a plethora of authorities to the effect that conflict in affidavit evidence on material issue must be resolved by oral evidence and not glossed over. See FSB INT. BANK v. IMANO NIG. LTD (2000) 7 SCNJ 65; FIRST BANK PLC v. MAY MEDICAL (2001) 4 SCNJ 1.
However, applications for enforcement of fundamental human rights are peculiar and special in nature. The application should ordinarily be decided on the supporting affidavit and counter affidavit and if need be further affidavit alone. There is no contemplation of the parties calling oral evidence to resolve conflicts in the affidavit. The special procedure is to facilitate the speedy release of citizens whose rights are being infringed and in such a case time is of essence in the determination of whether or not the executive infringement of a citizen’s fundamental human rights is lawful or not. The whole purpose of the procedure would be defeated if parties are allowed to call oral evidence to resolve none core questions of fact. Where there is conflicting affidavit evidence the court is entitled especially in cases of the special procedure for enforcement of fundamental Human Rights to discount the areas of conflict and turn to the contents of the Exhibits attached to the affidavit filed by the parties. Where the party does not submit positive exhibit to prove his case, the burden of proof would not be discharged. See UPL v. I. K. MARTINS (2000) 2 SCNJ 224. In this case Exh. F dated 26th May 2000 attached to the Appellant’s counter affidavit showed that the Appellant reported a case of fraud allegedly perpetrated by their Branch Manager to the Police and listed the names of the customers with whom the Branch Manager allegedly connived. There is no direct evidence from the 1st Respondent to show that the Bank reported the 1st Respondent to the Police for the purpose of his being arrested or detained. Oral evidence must be led to resolve the conflict unless there is documentary evidence that can tilt the contradictory evidence. The proper approach is to refuse to prefer one deposition to the other. See EIMSKIP LTD. v. EXQUISITE INDUSTRIES (2003) 1 SCNJ 317. In this particular case, the Appellant Bank did not detain the 1st Respondent, it was the police who detained him. Where private persons complain to the Police without move and the Police proceed to arrest and detain suspects, such complainants cannot be held liable for the arrest and an action for arrest and detention is not maintenable against such complainants. BARRISTER DURU v. PATRICK NWANGWU (2006) 5 SCNJ 394. If his detention was maliciously instigated by the Appellant, his remedy was in the form of a civil action against the Appellant for malicious prosecution. With the greatest respect, the learned trial Judge should have restricted himself to the question of whether or not when the 1st Respondent was detained in May 1999 (assuming he had jurisdiction) the 2nd Respondent detained him lawfully in prosecution of their powers of investigation of a criminal offence reported to them.
In conclusion, the process initiating this suit at the lower court was flawed in that leave was granted outside the statutory limitation period of 12 months whereas no explanation was given and no order for extension of time was granted. In the circumstances, the lower court had no jurisdiction to grant leave nor to proceed to hear the substantive application. The application for leave should have been struck out by the lower court. Having taken the case on the merits, both at the lower court and in this appeal, we have to make an order of dismissal of the 1st Respondent’s case at the lower court.
This appeal is meritorious and it is hereby allowed. The judgment of the lower court is set aside.
Appeal was not contested and there shall be no order as to costs.
Other Citations: (2008)LCN/2959(CA)
