Alphonsus Obinwa V. Commissioner of Police & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
OWOADE, J.C.A.
This is an appeal against the ruling of R. I. E. Odu, J. sitting at the Calabar High Court delivered on 20th July, 2000 in suit No. C/MSC/292/96. The applicant/appellant brought the action before the lower court under the Fundamental Human Rights Enforcement Procedure Rules 1979. By this, the applicant/appellant sought leave of the lower Court to enforce his right to personal liberty under section 32 of the 1979 Constitution (now section 34 of the 1999 Constitution).
In his application for leave, the applicant also sought interim orders against the 1st-3rd respondents to desist from further harassing or arresting him and to further detain his vehicle which was the subject matter of the transaction which led to the action. The reliefs sought by the applicant before the lower Court in the statement filed in support of the application were as follows:
“a) Declaration that the detention of the applicant by the 1st, 2nd and 3rd respondents was illegal, unconstitutional, null and void.
b) The enforcement and protection of the applicant’s fundamental rights as enshrined in section 32(1) of the Constitution of the Federal Republic of Nigeria.
c) Injunction restraining the respondents and, or their agents, privies from continuing to intimidate, harass or seize or threatening to detain the applicant, seize or detain any of the applicant’s vehicles or property at all.
d) Special damages assessed at N72, 660.00 (Seventy-two Thousand, Six Hundred and Sixty naira) against the respondents jointly and severally.
(e) Exemplary damages of N5, 000, 000.00 (Five Million Naira) against the respondents’ jointly and severally.”
The 1st-3rd respondent filed a counter-affidavit at the lower court as against the applicant’s/appellant’s affidavit in support of his motion on notice but the 4th respondent did not file any counter-affidavit. However, at the close of submissions by counsel, the learned counsel to the 4th respondent adopted the submissions of the learned counsel for the 1st-3rd respondent. The brief facts of the case were that the applicant claimed to have bought the 4th respondent’s vehicle but that after putting the vehicle into usable condition, the 4th respondent turned round to claim that the transaction between them was a pledge and later lodged a report to the 1st-3rd respondents alleging crimes of obtaining by false pretences and threat to his life that is the 4th respondent. And that the 4th respondent used his connections with the 3rd respondent to detain him, some of the members of his household and the vehicle in issue. It was not in dispute that the applicant was released after 3 days of incarceration and that the vehicle was detained for 15 days. The 1st-3rd respondents claimed that the detention of the applicant/appellant and his vehicle were inevitable in the course of police investigations into the alleged crimes.
At the end of the case, the learned trial judge delivered a considered ruling and held at pages 75 – 76 of the record as follows:
“Having said thus, I hold the view that the detention of the applicant was lawful. I have found that the respondent sold the bus C 20 OD 5154 J to the applicant, it was not a pledge. It is also my view that the respondent carried the police to detain the applicants acted somewhat within the law when they arrested and detained the applicant. In the circumstances I hereby make the following orders:
1) The respondents and/or their agents, privies are hereby restrained from continuing to intimidate, harass or threaten to detain C20 bus OD 5154 J.
2) The applicant’s vehicle was detained until released by the court. The applicant was using the vehicle for commercial purposes. I award N10, 000.00 as special damages against the 4th respondent only.
4) General damages against the 4th respondent are assessed at Thirty Thousand Naira Only (N30, 000.00).
Cost of this action is put at N1, 000.00 only against the 4th respondent.”
It is against this ruling that the applicant/appellant has appealed to this court to complain on the insufficiency of the damages awarded and the fact that the 1st – 3rd respondents were not condemned in damages. The appellant filed three (3) grounds of appeal as follows:
1) The learned trial judge erred in law in reducing special damages and exemplary damages to a very negligible and ridiculous figure without reason or justification whatsoever.
The trial judge erred in law by reserving from boldly and fully indicting the first, second and third respondents, and avoiding or exonerating them from liability in the payment of the special and exemplary damages after finding them partly liable and indicting them for their ultra vires act.
3) The learned trial judge misdirected himself when he failed to consider adequately and property, and then to evaluate the evidence offered by the parties and thereby came to a wrong decision as regards the award of damages.
Appellant’s counsel filed a brief of argument on 16/10/2002 and then a reply brief on 8/6/2004 in reaction to the 1st – 3rd respondent’s brief of argument filed and dated 22/5/03. Appellant’s counsel formulated only one issue from the three (3) grounds of appeal. That is:
“Whether the learned trial judge was correct in making the assessment when he reduced the special damages claimed against the respondents jointly and severally to such a negligible and ridiculous magnitude without any reason or justification whatsoever.”
The 1st – 3rd respondents on the other hand, having obtained leave of this Court to raise and argue a fresh issue formulated the following two issues for determination:
“1. Whether the trial Court had justification to entertain the prayer on the motion of the appellant for the enforcement of his fundamental right under section 40 of the 1979 Constitution of the Federal Republic of Nigeria when leave was granted to him to enforce his fundamental right only in respect of section 32 of the said Constitution.
- Whether the trial Judge was right in his assessment and award of damages in this case.
The 4th respondent in this appeal did not file any brief of argument.
This appeal shall be decided on the 1st issue formulated by the Ist3rd respondents as well as the only issue formulated by the appellant.
In relation to Issue No.1, learned counsel for the 1st – 3rd respondents submitted that the extent of leave applied for under the ex parte application and granted to the applicant/appellant was limited to the enforcement of the applicant’s/appellant’s right as enshrined in section 32 of the 1979 Constitution. Respondents counsel submitted further that even the prayers of the applicant/appellant on the motion on notice after obtaining the leave was only as regards the appellant’s right to personal liberty. Respondents counsel contended that the second line of the prayer in respect of the appellant’s right over his vehicle or property is certainly outside the contemplation of section 32 of the 1979 Constitution and outside the leave granted to the appellant by the trial Court. Being outside the leave and leave being a condition precedent top the exercise of jurisdiction, the prayer on property was outside the court’s jurisdiction.
Respondents counsel furthered “It is not in doubt that the right to property sought to be enforced by the appellant at the trial court is contained in section 40 of the 1979 Constitution of Nigeria in respect of which the applicant did not seek or obtain the leave of the trial court. Having not sought or obtain leave in respect of the appellant’s right to property enshrined in section 40 of the 1979 Constitution, it is our contention that the trial court lacked jurisdiction to entertain the applicant’s prayer in respect of enforcement of his fundamental right over his vehicle or property.
“Counsel relied on the case of Prince Bola Adesumbo Ajibola & Anor v. Samuel Olujimi Sogeke & Anor (2002) FWLR (Pt. 93) 1959 at 1979; (2003) 9 NWLR (Pt. 826) 494 following the Supreme Court case of Ojemen v. Momodu II (1983)1 SCNLR 188 to say that the word “leave” in legal parlance means “permission” and submitted that where leave of Court is required before the doing of a thing, it is mandatory to obtain it.
On this, respondents counsel relied on the provision of Order 2 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 1979 and the decision of the Court of Appeal in Nnaemeka Udene v. Rapheal Ugwu (1997) 3 NWLR (Pt. 491) 57 at 68 – 69 and concluded that the entire deliberation at the trial court in respect of the appellants vehicle or property and all findings thereon were made without jurisdiction and therefore are nullities and that the jurisdiction in respect of the appellant’s vehicle or properties having been a nullity, the issue of special damages claimed by the appellant and the sum of N30, 000.00 granted by the trial Court are all nullities.
The appellant’s reply to this line of argument as contained in his reply brief is that even where the application for leave to enforce his fundamental right was brought under a wrong law, or brought under two sections of a law and only cited one of the sections and omitted the other, what matters is that, where there is a wrong, there must be a remedy. Appellant’s counsel relied on the case of Falobi v. Falobi (1976) 1 NMLR 169 at 91; (1976) 9-10 SC 1 that where a relief or remedy is claimed under a wrong law but is supported by facts establishing the remedy the claim will not be denied merely because of the wrong law relied upon. The court, said appellant’s counsel has laid it down as a guiding principle that it is more interested in substance than in the mere form. Justice can only be done if the substance of a matter is examined. Reliance on technicalities leads to injustice.
Appellant’s counsel submitted that the numerous authorities cited on the failure to obtain leave, and the mandatory nature of “leave” are inapplicable in this case, because leave was sought for and obtained by the appellant in this case.
In understanding the different arguments canvassed by the parties to this appeal in relation to issue No.1, it is important to set out in detail the appellant’s ex parte application for leave before the lower Court and the Court order thereon.
At pages 1 and 2 of the record, the ex parte application of the appellant prayed as follows:
a) Leave to apply by reason of its violation and upon imminent threat of further violation of the applicant’s fundamental right as enshrined in section 32 of the Constitution of the Republic of Nigeria, 1979.
b) An interim order restraining the respondents from further arrest, interfering with or impounding further any of the applicant’s vehicle or property.
And for such further or other order(s) as this Honourable Court may deem fit to make in the circumstances.
The Court order on the application for leave could be found at pages 14-15 of the records thus:
“1. “It is hereby ordered that leave be and is hereby granted to the applicant to apply to enforce his fundamental rights as guaranteed under Section 32 of the 1979 Constitution of the Federal Republic of Nigeria.
- It is further ordered that prayer 2 will be considered on the motion on notice which hereby adjourned to 16th day of January, 1997.”
It would be seen from the above that there was indeed no application for leave for the enforcement of any other of the appellant’s rights outside his light to liberty under section 32 of the 1979 Constitution. Neither were there any facts in the application indicating that the appellant wanted leave to enforce his right to property under section 40 of the 1979 Constitution. It is not therefore, as the appellant suggested a case of failing to cite or mention the required provision of the law, it is a case of the appellant having not sought or obtained leave for the enforcement of property rights under section 40 of the 1979 Constitution.
What then is the legal effect of the appellant’s failure to seek leave for the enforcement of his property rights under section 40 of the 1979 Constitution? In answering this question, recourse must be had first to the provision of section 42(1) of the 1979 Constitution under which the rules were made and then to the rules themselves. Section 42(1) of the 1979 Constitution (now Section 44(1) of the 1999 Constitution) states thus:
“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.”
O.1 Rule 2(2) of the fundamental rights (Enforcement Procedure) Rules states that:
“No application for an order enforcing or securing the enforcement within that State of any such rights shall be made unless leave therefore has been granted in accordance with this rule.”
The above provision came for interpretation in the case of Nnaemeka Udene v. Ugwu (1997) 3 NWLR (Pt. 491) P. 57 at 67 where the Court of Appeal (Enugu Division) led by Achike, JCA (as he then was) held as follows:
“Sub-rule 2, clearly to my mind, makes it manifest that obtaining of leave of the trial court is mandatory and a sine qua non in the proceedings under the Enforcement Rule …
Thus the grant or refusal to grant leave is a crucial step in the procedure for challenging a violation of a person’s fundamental rights. To overlook it completely as was the case in the instant case, will tantamount to a serious violation of the rules for enforcement of fundamental rights constitutionally entrenched in the 1979 Constitution. In short, it is a condition precedent to obtaining the order being asked for. Surely, this cannot be regarded as a mere irregularity; rather it is non-compliance which goes to the very root of the action that has been constitutionally entrenched.”Achike, JCA, concluded at pp. 67 – 68:
“I find it difficult to appreciate that since the coming into operation of the rules on 1/1/80 that any Court can in its whims and caprices brush the rules aside, whenever any such application for violation of fundamental rights is before the Court and in respect of which no leave was sought for and obtained. The irresistible conclusion one would be driven to is that the court lacks compliance to entertain it and the same should be struck out. See Madukolu & Ors. v. Nkemdilim (1962) NSCC (Vol. 2) at pp. 379 – 380, (1962) 2 SCNLR 341. The court faced with such application in the absence of a prior leave of court will lack competence to entertain it.”
From the above dictum it is obvious that leave was a condition precedent to any orders relating to the property rights of the applicant/appellant in the instant case. I hold in agreement with the learned counsel to the 1st – 3rd respondents that the various orders including the award of damages by the learned trial judge in respect of the appellant’s vehicle C20 Bus OD 5154J are nullities, as the learned trial judge would have simply struck out those claims for lack of jurisdiction.
Issue No.2 is whether the learned trial judge was Correct in making the assessment when he reduced the special damages claimed against the respondents jointly and severally to such negligible and ridiculous magnitude without any reason or justification whatsoever. The complaint of the appellant under the sole issue is twofold. The first is the insufficiency of the award of damages; the second is the fact that the 1st -3rd respondents were not included in the award of damages. It is noteworthy that the appellant did not file any grounds of appeal on the findings of the learned trial judge as to the lawfulness or otherwise of the conduct of the respondents.
In reaction to the sole issue argued by the learned counsel to the appellant, the learned counsel to the 1st – 3rd respondents submitted that the learned trial judge rightly found that the actions of the 1st-3rd respondent were excusable in law since they were obliged to investigate crimes on account of Exh 1 which gave them a reasonable suspicion of the applicant/appellant having committed a criminal offence. Learned counsel to the 1st – 3rd respondents relied on the provision of section 32(1) (C) of the 1979 Constitution which created a derogation from the appellant’s guaranteed right to personal liberty. 1st – 3rd respondents’ counsel submitted in respect of the appellant’s vehicle that the detention had to take a longer time, totalling 15 days because all the vehicle particulars had to be investigated in the Odukpani Motor Licensing Office and one of the receipts which the appellant annexed to the affidavit supporting his motion was issued at Aba and three of the receipts were issued on 15th September, 1996, a Sunday and a non-working day which further made the circumstances of the case to be highly suspicious on the part of the appellant (See exhibits ‘G’, H1, and H2). 1st – 3d respondents’ counsel relied on the decision of the Supreme Court in Odogu v. Attorney-General of The Federation & Ors (1996) 6 NWLR (Pt. 456) 508 at 519 and concluded that there was nothing outrageous in the conduct of the 1st – 3rd respondents conduct in any event to warrant the award of exemplary damages.
Perhaps it should be mentioned straight away that the appellant’s sole issue has no relationship with the findings of the trial court in this case. The appellant based his three (3) grounds of appeal and consequently issue No.2 on some observations in the judgment which suggest blame worthiness on the party of the respondents.
However, in the conclusion of his findings the learned trial judge did not find any of the respondents legally blame worthy. Some of the pungent comments of the trial judge in respect of the attitude of the respondents could be found at pages 73 – 74 of the record. For example, at page 73 of the record, the learned trial judge found as a fact that the applicant/appellant indeed bought the vehicle from the 4th respondent and then surmised that if he the 4th respondent knew that the appellant bought the vehicle and yet, he lodged a report against him, then the woes of the appellant must necessarily be visited on the 4th respondent. To use his words:
“It is my candid view that the applicant bought the vehicle from the respondent, the vehicle was not pledged to the applicant. If the respondent knew he had sold the vehicle to the applicant, as I believe he did, and yet denied, to cause the applicant to be arrested and detained, then he is to blame.”
Also, paragraph 3.1 of the appellant’s reply brief quoted the trial judge at page 74 of the records castigating the respondents as follows:
“If the Police thought it necessary to detain the applicant they should not have kept the applicant for more than twenty-four hours. The suggestion by the Police that applicant and others were detained for a short time is not excusable in law. It is unlawful imprisonment to detain anybody for even one second in circumstances not excusable in law.
Meanwhile, the real conclusive finding of the learned trial judge could be found at page 75 thus;
“Having said this I hold the view that the detention of the applicant was lawful. I have found that the respondent sold the bus C20 OD 5154J to the applicant; it was not a pledge. It is also my view that the respondent carried the police to detain the applicant’s acted somewhat within the law when they arrested and detained the applicant.”
From the above, who perhaps escaped the eyes of the learned counsel for the appellant, none of the respondents was found liable for the detention of the appellant or his vehicle. The award of damages that followed obviously has no nexus or relationship with the findings of the learned trial judge. From this perspective, the complaint of award of low damages by the appellant is unfounded since damages nay exemplary damages follow the cause, where there is no cause, there will be no damages. See e.g. Tobi, JCA (as he then was) in Dr. Gabriel Olusoga Onagoruwa & 1 Or v. I. G. P. & Ors (1991) 5 NWLR (Pt. 193) 593 at 647. Furthermore, and as was laid down by the Court of Appeal in Onagoruwa v. I. G. P. (supra) at pp 647 648.
“Exemplary damages will be awarded against a defendant in three instances. These are:
a) Where there is an express authorization by statute.
b) In the case of oppressive, arbitrary or unconstitutional action by the servants of the government.
c) Where the defendant’s conduct had been calculated by him to make a profit for himself, which might well exceed the compensation payable to the plaintiff.”
In order to succeed, a plaintiff must be able to prove any of the three conditions. He need not prove all the three conditions to succeed. Once any of the three conditions is proved, a court of law will award exemplary damages. See Ezeani v. Ejidike (1964) 1 All NLR 402; A.R.E.C. Ltd. v. Amaye (1986) 3 NWLR (Pt. 31) 653; Eliochin Nig. Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47; Williams v. Daily Times of Nig. Ltd. (1990) 1 NWLR (Pt. 124) 1; Iluono v. Chiekwe (1991) 2 NWLR (Pt. 173) 316 referred to.In the instant case, the actions of the respondents could not be tied down to any of the above rules and therefore exemplary damages would not have been awarded. It is pertinent to point out at this stage that this case like many others in our courts suffered from the dilemma of form of action. For example, the remedies of the appellant vis-a-vis the 4th respondent would have been more easily realizable if his counsel had filed a separate suit as against the 4th defendant/respondent by way of a writ of summons for malicious prosecution and false imprisonment. In other words, the attempt by appellant’s/applicant’s counsel to lump the various remedies available to the appellant together in an action under the Fundamental Rights (Enforcement Procedure) Rules had not only caused a lot of mix-ups or confusion in the court below but has also limited the appellant’s chances of realizing his full remedies. This point was driven home more properly by the Supreme Court in the case of Alhaji Ibrahim Abdulhamid v. Jalal Akar & Anor (2006) 13 NWLR (Pt. 996) p. 127, a case that is almost on all fours with the present case. In that case, the 1st respondent employed his influence with Military Officers particularly the 2nd respondent, to intimidate, harass and terrorise the appellant to pay a debt which he (the appellant) owed the 1st respondent. In the process, the appellant’s pickup van and another Peugeot 505 car were impounded from him by military men acting under instruction of the respondents and taken to the 1st respondent. The appellant commenced an action against the respondent under the Fundamental Rights (Enforcement Procedure) Rules seeking sundry reliefs including monetary compensation from the respondents. The Supreme Court was confronted with the question of whether the action was maintainable under the Fundamental Rights (Enforcement Procedure,) Rules and whether the competency of the appellant’s action could be solely determined by reference to the nature of the reliefs sought without reference to the process filed at the trial.
The Court frowned on the propriety of maintaining an action under the Fundamental Rights (Enforcement Procedure) Rules, where the principal reliefs claimed are founded at common law. A unanimous Supreme Court consisting of I. L. Kutigi, JSC who presided and read the lead judgment with A. I. Katsina-Alu, Pats-Acholonu, S. A. Akintan and A. M. Mukhtar, JJSC dismissed the appeal. The mind of the court in respect of wrong forms of actions was notably captured by Pats-Acholonu, JSC at page 147 of the report:
“I must state that it is becoming fashionable nowadays for litigants to institute an action by way of asking for relief for infraction of their Constitutional rights in a matter where the facts reveal that an action should conceivably lie in tort or contract. It is difficult to say whether recourse to this inelegant procedure is borne out of the ignorance of counselor a mistake. Whichever is the case, it is important to state and emphasise that in a case of the nature before us, counsel should have studied the facts of the case very well.
Facts are the spring board of law. It is the facts of the case that determine the appropriate remedy. This case is lost because of unpardonable procedure resorted to by the appellant’s counsel. An action by way of fundamental rights may sound romantic and possibly prosaic, but it could lead to a loss of a case because of a parade of abysmal ignorance as to what to do.”Having said that and for the other reasons given above, issue No.2 is also resolved against the appellant. Consequently this appeal lacks merit and it is accordingly dismissed.
There shall be no order as to costs.
Other Citations: (2006)LCN/2099(CA)
