Commissioner of Police, Ondo State & Anor V. Festus Ade Obolo (1989)
LawGlobal-Hub Lead Judgment Report
SALAMI, J.C.A.
This suit was commenced in the court below under the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 1979 made in pursuant to Section 42 of the Constitution of the Federal Republic of Nigeria, 1979. The applicant sought and obtained leave of the court below for enforcement of his right against the 1st and 2nd respondents who were incidentally the Commissioner of Police and Divisional Police Officer for Ondo State and Okitipupa respectively. He wanted the two officers to show cause why his fundamental rights were curtailed or violated by the two respondents. The applicant complained generally that whenever there was a case of armed robbery the police as a matter of routine would pick him up as a suspect, have him put in custody and subject him to treatments which berated his dignity. The applicant sought the following reliefs:-
(a) That he was unconstitutionally and unlawfully arrested and detained on divers dates without being informed of the offences he committed or charged and brought before a court of competent jurisdiction.
(b) That his arrests and detentions on various dates were or constitute infraction of his fundamental rights guaranteed in Sections 31, 32(2), (3), (5)(a) and (b) of the 1979 Constitution.
(c) A claim for injunction restraining the respondent jointly and severally by themselves or their agents or servants or otherwise howsoever from repeating any of the infringements complained of.
(d) A claim for N500,000.00 against the defendants for general, exemplary or aggravated damages.
(e) A claim for public apology.
The two respondents attempted to show cause by filing a joint counter affidavit deposed to on 12th May, 1982. The order was made consequent upon the leave asked for by the applicant for the enforcement of his right to personal liberty guaranteed him under S.31(1)(a) and 32(2), (3), (4) and (5) of the 1979 Constitution and Order 1 rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979.
The case was tried on the affidavits of the parties and the learned trial Judge having heard arguments of counsel on behalf of either side found for the applicant in all his claims save the one for injunction and awarded him compensatory damages of N250.00. Both parties were dissatisfied with the decision of the court below and have appealed to this Court. The respondents (hereinafter referred to as appellants) have appealed against the decision on two grounds of appeal. The applicant (hereinafter referred to as respondent) is dissatisfied with the award of compensatory damages of N250.00 and has cross-appealed on quantum of damages.
The parties in pursuance of Order 6 of the Court of Appeal Rules 1981 filed briefs. The appellants filed appellant’s brief and cross-respondent’s brief. The respondent filed only one brief in which he met the appellants’ arguments and also advanced cross-appellant’s arguments. In the respondent’s brief, the respondent intimated that he would raise a preliminary objection. Neither the appellant’s nor cross-respondent’s brief particularly the latter replied to the objection.
In the preliminary objection, it was contended, on behalf of the respondent, that the two grounds of appeal formulated in the notice of appeal are incompetent. The reasons being that the particulars of misdirection alleged in ground (a) and or error of law alleged in ground (b) were not supplied under particulars of the respective grounds as required by the rules and practice of court. He referred the court to Order 3 rule 2 (2) of the Court of Appeal Rules, 1981 and argued that the demand of the sub-rule is mandatory and is not complied with by simply reproducing passages from the judgment or ruling of the court below. He contended that the appellants are duty bound to give full and substantial particulars of the error of law or misdirection alleged in the ground of appeal. He submitted that failure to supply relevant or appropriate particulars may be fatal to the appeal. He relied on the cases of Saka Atuyeye & Others v. Emmanuel O. Ashamu (1987) 1 N.W.L.R. (Pt.49) 267, 268, Anachuna Anyaoke & Others v. Dr. Felix G. Adi & Others (1986) 3 N.W.L.R. (Pt.31) 731, 733, and Ojiegbe v. Okwaranyia (1962) 1 All N.L.R. 605.
Mr. Onipede for the appellants in his oral reply to respondent’s preliminary objection submitted that the grounds of appeal are competent as they were got up strictly in compliance with Order 3 rule 2(2) of the Court of Appeal Rules, 1981.
There is no substance in the objection. The particulars of each ground is contained in the ground, each ground is properly got up without the need for separate particulars. In other words, what the appellant is complaining of is clearly stated in the ground. The so called particulars given, in each case, are, therefore, surplusage. The grounds of appeal shorn of their purported particulars are clearly drawn and have given the respondent adequate notice of what the appeal is all about. The grounds of appeal read thus:-
“(a) The learned trial Judge misdirected himself by holding that the respondent’s had no reasonable grounds to support the actions they took against the applicant when there was no such evidence before him.
(b) That the learned trial Judge erred in law and in fact by holding the D.P.O. at Okitipupa liable to the applicant when there was evidence before him that the investigation of the violent robbery was by Ore Police contingent and not by Okitipupa Police Command.”
I agree with the learned state counsel, Mr. Onipede, that the two grounds of appeal sufficiently complied with Order 3 rule 2(2) of the Court of Appeal Rules, 1981. It would have been a different matter if the grounds had merely alleged that “The learned trial Judge erred in law” or that “The learned trial Judge misdirected himself’ and then be subjoined by a quotation from the judgment without more. The two grounds would have been, in that circumstance, improperly drawn and deserve to be struck out.
The issues for determination as formulated by the appellants are:-
“1. Would the police have to first determine the part played in an armed robbery case before a suspect would be arrested and detained pending further investigations or could arrest any suspect on grounds of reasonable suspicion of having committed a capital offence before necessary investigation are concluded.
- Was the lower court right to have pronounced any liability against the Divisional Police Officer, Okitipupa when it was clear in evidence that it was the police team from Ore police station that conducted the arrest, detention and investigation of the armed robbery involving the applicant/respondent when Ore Divisional Police Officer is not within the jurisdiction of Okitipupa Police Command.”
The issues identified and formulated by the respondent are as follows:-
(a) Whether or not the respondents/appellants had reasonable ground/suspicion for the arrest and detention of the applicant/respondent between 3rd – 7th October, 1981, and
(b) Whether evidence/information of such reasonable suspicion grounds were placed before the court to enable it determine whether the arrest and subsequent detention of the applicant/respondent was lawful and/or Constitutional – in the circumstances – having regard to the real issues in controversy between the parties and the antecedents of the respondents.
The issues for determination, to my mind, in respect of both grounds of appeal are as follows:-
(a) Whether the appellants discharged the onus placed on them by showing that the ground for the arrest and detention of the respondent was reasonable.
(b) Whether or not the 2nd appellant can be liable on the evidence accepted by the trial court.
The learned counsel for the appellants argued the grounds of appeal rather than the issues identified and formulated by him contrary to the practice under brief writing procedure. The learned Senior State Counsel, Mr. Onipede, rather than argue the two grounds of appeal as (a) and (b) as numbered in the record of proceedings, he opted in his brief to argue them as ground I and II. I think for uniformity the initial numbering in the record book ought to be retained particularly so when the respondent’s counsel proffered or directed his arguments to grounds (a) and (b) and not to I and II in his reply brief.
However, counsel for the appellants made a number of submissions in support of the first issue. The main thrust of his submission, having conceded that under Section 32(7)(a) of 1979 Constitution the court in exercise of its supervisory function can only examine the legality or otherwise of a detention in custody submitted that the applicable test is subjective. He cited in support of his various submissions the cases of John Lewis & Co. Ltd. v. Tims (1952) A.C. 676, 691 and Dumbell v. Roberts & Ors (1944) All E.R. 326 at 329.
The case of Musoke v Uganda (1972) E.A.R. 137 at 139-440 referred to is not helpful in this appeal. In that case Kiwanuka, Ag. C. J. (as he then was) stated thus:
“There are complicated cases which cannot be tried within 6 months because of the nature of the investigations necessary, and the accused cannot be released because of the nature of the offence involved. In such cases accused persons will not be released as of right basing their claim to this right on the provisions of our constitution. ”
This present case is different from that of Musoke supra. The respondent here is not asking for a speedy trial nor is he applying for release pending his trial. The complaint in this case is that the arrest and detention of the respondent has not been predicated on a good ground. The respondent was arrested and detained in police custody between 3rd and 7th October, 1981. The issue therefore is whether the appellant discharged the evidential burden or onus of proof which shifted on them after the respondent has shown to the lower court that he has been deprived of his right to personal liberty.
The provisions of the Constitution of the Federal Republic of Nigeria that are pertinent are Section 32(1) (C) (4) and (7)(a) which read as follows:”
32(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law: For the purpose of bringing him before a court in execution of the order of a court or upon a reasonable suspicion of his having committed a criminal offence or to such extent as may be reasonably necessary to prevent his committing a criminal offence:
(4) Any person who is arrested or detained in accordance with sub-section (1)(c) shall be brought before a court of law within a reasonable time and if he is not tried within a period of:-
(a) 2 months from the date of his arrest or detention in the case of a person who is in a custody or is not entitled to bailor
(b) 3 months from the date of his arrest or detention in case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a latter date.
(7) Nothing in this section shall be construed:
(a) in relation to sub-section (4) of this section, as applying in the case of a person arrested or detained upon reasonable suspicion of having committed a capital offence;”
The burden on the appellant is to adduce evidence that the respondent was arrested on a reasonable suspicion of his having committed a criminal offence, or that the arrest was reasonably necessary to prevent his committing a criminal offence. It is pertinent to recite the relevant portion of the judgment which reads thus:-
“I must say, in the light of these pronouncements that the respondents in the matter before me have, to their own prejudice, failed to disclose very vital information from which I could have informed whether or not their actions were legal. They failed to tell me in their counter-affidavit what exactly the applicant did or the part he played in connection with the case of armed robbery to warrant his arrest on 3/10/81 and his subsequent detention in police custody for upwards of four days. They said that in doing what was alleged against them, they were not actuated by malicious feelings towards the applicant. That could be so and in all probability it was so. But the question is: were they sufficiently persuaded of the involvement of the applicant in the commission of the offence in respect of which he was put to custody? If they were why didn’t they state the facts they relied on before arresting the applicant. In the absence of such a disclosure, I can come to no other conclusion than to hold that the respondents had no reasonable grounds to support the actions they took against the applicant. In my opinion these actions were clearly unconstitutional.”
Before I proceed further, I intend to dispose of the submission of the learned counsel for the appellant that the test for determining whether the ground for arresting and detention is reasonable is subjective. The learned Senior State Counsel was in serious error when he submitted that the test for depriving a citizen of his liberty and for detaining him for a serious offence such as armed robbery is subjective. With due respect, the test as to what is reasonable belief that the respondent has committed an offence is objective. It is not what the appellants considered reasonable but whether the facts within their knowledge, at the time of arrest disclosed circumstances from which it could be easily inferred that the respondent committed the offence of armed robbery. See Oteri v. Okofodudu (1970) 1 All N.L.R. 194.
The burden of proving the legality or constitutionality of the arrest and the imprisonment is on the appellants. This cannot be successfully done without disclosing to the trial court in their counter affidavit what the respondent did or the role be played or the extent of his involvement in the armed robbery to justify his arrest on 3rd October, 1981 and his subsequent imprisonment for more than four days. The wonderful opportunity to establish the reasonable ground for arresting the respondent eluded-them probably because of the misconception under which the appellant’s counsel had been labouring. The wrong assumption is that it was for the respondent to show that the arrest was unlawful. See Joe Sandy v. P. C. Johannes B. Hotogua & Anor. 14 W.A.C.A. 18 at 20 where Coussey J. A. said:â¢
” … .if the defendant then and there defied the judgment, and declined immediately to observe its terms as the defendants allege, he was not immediately imprisoned to enforce it. How is the interim period of inactivity on the part of the Native court explained? It seems to us to follow that the imprisonment was not upon a lawful order of the Native court for there was in fact no further order of the Native court, and the defendants have failed to justify the plaintiffs detention which, on the evidence, was brought about by them and not by the Native court and was therefore unlawful.”
The case of John Lewis & Co. Ltd. v. Tims (1952) A.C. 676, cited by the learned State Counsel turned on the requirement to take an arrested person before a justice of the peace or a police officer as soon as reasonably possible. But it can be gleaned from the judgment the need to place the evidence before the court. It is a matter for the court to determine whether or not there is good ground for the arrest and it cannot do so if the party who knew the reasonable ground for arresting the respondent holds on to it. At page 691 of Tims case (supra) Lord Porter said:
“Those who arrest must be persuaded of the guilt of the accused; they cannot bolster up their assurance of the strength of the case by seeking further evidence and detaining the man arrested meanwhile or taking him to some spot where they can or may find further evidence whether there is evidence that the steps taken were unreasonable or the delay too great is a matter for the Judge whether, if there be such evidence the delay was in fact too great is for the jury.”
The Supreme Court set down the test to apply with the onus of proof on the defendant seeking to justify his action in the case of Oteri v. Okorodudu (supra) at 200.
“In our view the test to be applied with onus of proof on a defendant seeking to justify his conduct, was laid down in 1838 by Tindul, C. J., in Allen v Wright & Car. and P.522 where he said that must be that of a reasonable person acting without passion and prejudice. The matter must be looked at objectively, and in the light of the facts known to the defendant at the time, not on subsequent facts that may come to light as is shown by Wright v. Sharp (1947) L.T. 308. Lord Wright in McArdle v Egan (1933) All E.R. Rep. 611 at 613 showed that the responsibility is ministerial and not judicial when he said:-
“It has to be remembered that police officers, in determining whether or not to arrest, are not finally to decide the guilt or innocence of the person arrested. Their functions are not judicial, but ministerial.”
We would also refer to the judgment of Dip lock, L.J. (as he then was) in Dallison v. Caffery (1965) 1 Q.B. 348 as to the question of reasonableness in a case involving both false imprisonment and malicious prosecution where at page 371 he said:-
“One word about the requirement that the arrestor or prosecutor should act honestly as well as reasonably. In this context it means no more than that he himself at the time believed that there was reasonable and provable cause, in the sense that I have defined it above, for the arrest or for the prosecution, as the case may be. The test whether there was reasonable and probable cause for the arrest or prosecution is an objective one, namely, whether a reasonable man, assumed to know the law and possessed of the information which in fact was possessed by the defendant, would believe that there was reasonable and probable cause.
Where that test is satisfied, the onus lies on the person who has been arrested or prosecuted to establish that his arrestor or prosecutor did not in fact believe what ex hypothesis he would have believed had he been reasonable (see Herniman v. Smith (1938) A.C. 305, 316, per Lord Atkin). In the nature of things this issue can seldom seriously arise.”
The test of what is reasonable suspicion is not as high as establishing a prima facie case as Lord Devlin in Shaaban Bin Hussien v. Chong Fook Kam (1969) 3 All E.R. 1626 in an appeal from the Federal Court of Malaysia made clear in the Privy Council when he said at 1630:-
“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking; ‘I suspect but I cannot prove’. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete. But if arrest before that were forbidden, it could seriously hamper the police. To give power to arrest on reasonable suspicion does not mean that it is always or even ordinarily to be exercised. It means that there is an executive discretion. In the exercise of it many factors have to be considered besides the strength of the case. The possibility of escape, the prevention of further crime and the obstruction of police enquiries are examples of those factors with which all Judges who have had to grant or refuse bail are familiar. There is no serious danger in a large measure of executive discretion in the first instance because in countries where common law principles prevail the discretion is subject indirectly to judicial control.”
The appellants failed to adduce evidence to establish the legality of the respondent’s arrest and subsequent detention. The trial court rightly observed the absence of such evidence from the appellant’s counter-affidavit.
This ground of appeal, therefore, fails and is dismissed.
In arguing the second issue, the learned Senior State Counsel contended that the Divisional Police Officer, Okitipupa could not possibly have been held liable, on the evidence produced and accepted by the court that it was a police team from Ore Divisional Police Station who contravened the respondent and carried out the investigations and the arrests to the exclusion of the Divisional Police team from Okitipupa. He submitted that the Divisional Police Officer Okitipupa was wrongly joined and added in his oral submission that ipso facto the first respondent he could not be found liable.
The learned counsel for respondent argued that the complaint raised in the said ground of appeal is misconceived in that there is a single unified police command in Ondo State and the head of that-command is the Commissioner of Police, Ondo State. He referred the court to Section 195(2) of the 1979 Constitution. He submitted that there is no police command such as Ore contingent or Okitipupa command known to law and that being the gravamen of the appellant’s complaint he urged court to dismiss this ground of appeal. He submitted further that the administrative units in a State do not have their own legal status and that all police officers within a State command are responsible for any incident of arrest and detention to the Commissioner of Police. He cited the case of Shedrack Orji Ukpai v. Udo Oji Okoro & Ors (1983) 11 S.C. 231 at 263 – 275.
Section 195(2) of the Constitution of Federal Republic of Nigeria, 1979 reads thus:-
“(2) The Nigeria Police Force shall be under the command of the Inspector-General of Police, and any contingents of the Nigeria Police Force stationed in a State shall, subject to the authority of the Inspector General of Police, be under the command of the Commissioner of Police of that State.”
Neither divisional police office nor divisional police officer is known to the Constitution. The two institutions, too, are not known to any statute as far as my research can carry me. The office and occupants have been created for administrative convenience. There is a single command throughout the state nay throughout the country. There is a single command throughout the country and I am not aware of any legal constraint forbidding intra and inter state operations of the members of the force without let or hinderance the police officers within a state act for and on behalf of the State Commissioner of Police and all their actions inure to him.
The only life issue, it seems to me; is the propriety of suing “Divisional Police Officer” Okitipupa who is not known to law. It is only a legal person that can sue and be sued. See Agbonmagbe Bank Ltd. v. General Manager G. B. Olivant Limited & Others (1961) All N.L.R. 116. There is no evidence before me that Divisional Police Officer, Okitipupa is a juristic person. But the wind is taken out of the sail of the 2nd appellant by the seemingly with-drawal against him by the learned counsel for the respondent in his brief and his expressly conceding, in his oral submissions, that Divisional Police Officer, Okitipupa is not a juristic person. The second ground of appeal succeeds and it is allowed to the extent of striking out the second appellant.
The respondent filed notice of intention to have the judgment varied on two grounds and formulated three issues. The issues as identified and formulated by him are as follows:-
(a) Whether or not the learned trial Judge was right in the assessment of an award of nominal damages to the applicant/respondent having regard to all the circumstances of the case, damage to his business and reputation and in particular in the light of his findings of fact that the last detention of the applicant/respondent and cross-appellant between the 3rd and 7th of October, 1981 herein is quite inexcusable and unconstitutional.
(b) Whether or not the trial Judge correctly interpreted the provisions of section 32(3) of the 1979 Constitution.
(c) Whether or not the inference drawn on the principle in the Shugaba’s case (1984) N.C.L.R., on the award of punitive or exemplary damages is justifiable in the light of the authorities and principles of law governing award of damages in fundamental human right cases cited in this brief in support of the submissions.
The appellant failed to formulate any issue for the cross-appeal.
The grounds of appeal are set out immediately below as follows:-
“The learned trial Judge erred in law when he disallowed the N500,000.00 compensatory damages for the abridgment of the entrenched constitutional rights of the respondent/cross-appellant:
PARTICULARS
Having found that the appellant’s action was factually unjustifiable, inexcusable and unconstitutional, the cross-appellant was entitled to substantial general damages assessed on principles which takes into consideration the following factors:-
(a) Discomfort and injury to health.
(b) Injury to plaintiff’s reputation in his environment.
(c) Mental suffering and humiliation sustained in consequence of the arrest or restraint.
(d) Damage done to plaintiffs business credit and reputation.
(e) Gravity of the offence alleged and the risk of mistaken identity and consequences of the arrest or restrain.
(f) Value of the time lost by the plaintiff during the period of unlawful detention and or false imprisonment.
GROUND TWO
The learned trial Judge erred in law and misconstrued the provisions of section 32(3) when he failed to realise that the said provision of section 32(3) of the 1979 Constitution of the Federal Republic of Nigeria is mandatory on the respondent.
PARTICULARS
(a) There is nothing in the counter-affidavit of the respondent at page 32 and 33 of the record of proceedings that the respondents complied with the mandatory provisions of sec-
(b) The mandatory requirement that the cross-appellant when he was arrested and detained “shall be informed in writing within 24 hours (and in the language that he understands) of the facts and grounds for his arrest or detention was not complied with by the respondents/appellants.”
The second ground to vary the judgment is misconceived. There is nothing in the affidavit in support of the motion that the respondent was not informed of the reason for his arrest in writing within 24 hours of his arrest on 3rd October, 1981. The appellant averred in paragraphs 14 and 15 of the affidavit in support of motion the exact reason leading to his arrest and detention. It can, therefore, be fairly presumed that Section 32(3) of the 1979 Constitution had been complied with. How else would the respondent have acquired the knowledge of circumstances surrounding his arrest if he were not informed by his arrestors? Be that as it may, evidence are required to be adduced all the trial in support of the respective position of the parties and not to be stealthily introduced under the cover of supplying particulars to a ground of appeal. The second particular to ground 2 is a surreptitious attempt by the respondent to make the allegation they are very well aware they did not make at the court below. Mr: Mafo, more than many, should know that a ground of appeal does not constitute evidence. The issue raised in this ground is therefore, academic and designed to score a debating point.
It is struck out.
On the first ground of respondent’s intention to have the award varied, counsel complained against the award of nominal damages of N250.00. Counsel contended that the award did not take into account consideration normally applicable to violation of fundamental rights and was wrongly determined on the ordinary tortious action damages. He finally submitted that the learned trial Judge was in error to hold that the injury of the respondent was not comparable with that of applicant in the case of Shugaba Darman v. Minister of Internal Affairs (1981) 2 N. C.L.R. 459. He commended the principles of law contained at pages 381-384 of Damages by Charles T. McCormick Handbook’ series to the court and Minister of Internal Affairs v. Shugaba Darman (1982) 3 N.C.L.R. 915.
The learned Senior State Counsel, in his reply, argued that the court will only award damages after it has considered the extent of injury suffered by the applicant. He conceded that where it is found that the conduct of the defendant is oppressive, arbitrary and/or unconstitutional, the court would award ‘substantial or exemplary damages. The essence of such damages, counsel submitted, is to punish and deter. He referred to the case of Shugaba Abdulrahaman Darman v. Minister of Internal Affairs (1980) 2 N.C.L.R. 459 and pointed out that the respondent was merely locked up in the police custody unlike Shugaba Darman who was deported from his country.
The learned trial Judge in deciding the quantum of damages stated as follows:-
“In my opinion, the injury that was occasioned to the applicant’s rights was small. The injury is no compare with that to which the applicant in the case of Shugaba Darman v. Minister of Internal Affairs (1981) 2 N.C.L.R. 459 was subjected and in respect of which exemplary damages were awarded.
As I said earlier on, the injury suffered by the applicant was small and only nominal compensation is called for. I award him N250.00 compensatory damages.”
Appellate courts are very reluctant or slow to interfere in the award of damages and attempt to reassess awards made by the court below except it can be shown that they have been given on a wrong principle of law or are erroneous estimate since the amount was too large or too small. It is also not or sufficient reason for interference in the award of damages that if they were sitting as court of first instance they would have awarded a different amount as damages. See Owen v. Sykes (1936) 1 K.B. 192, Flint v. Lovell (1935) 1 K.B. 360 and Obere v. The Board of Management Eku Baptist Hospital (1978) 6 and 7 S.C. 15.
The learned trial Judge did not ascribe or proffer any reason for the award he made. The learned Senior State Counsel has conceded that compensatory or exemplary damages could be awarded if the act of the appellant were to be found to be oppressive, arbitrary or unconstitutional. The arrest of the respondent and his subsequent detention in the police custody is a deprivation of personal liberty guaranteed the respondent by the Constitution. During this period the respondent was subjected to identification parade in which he could have been mistakenly identified as one of the robbers with all its attending risks including conviction and execution. He was transferred from Okitipupa where he was arrested to Ore from where he was taken to Akure. The passage at pages 381 – 384 of Damages by Charles T. McCornick Handbook Series deals with malicious prosecution. But we have in our hands here false arrest and imprisonment which is taken care of in chapter 13 of the said handbook.
The learned author has this to say on factors to be taken into consideration in the assessment of damages in false arrest and imprisonment cases –
“General” damages, again, need not be specifically proved – it may be inferred from the circumstances of the arrest or imprisonment and the jury has a greater degree of freedom in making the award thereafter. Seemingly this “general” damage would include at least the value of time lost by the plaintiff during the periods of detention and any mental suffering or humiliation sustained in consequence of the arrest or restraint, other injurious consequences, the occurrence of which depends on the particular situation are learned “special” damages, and must be pleaded. Among the most common items of special damage are;
(1) physical discomfort, shock, or injury to health;
(2) the interruption of business, or the loss of a particular business opportunity or employment;
(3) injury to the plaintiffs reputation or credit; and
(4) the reasonable and necessary expenses incident to the plaintiffs confinement.” And in Minister of Internal Affairs v. Shugaba Abdurrahaman Darman (1982) 3 N.C.L.R., 915 at 1009 Karibi-Whyte, J.CA. (as he then was) on assessment of damages stated as follows:-
”The imponderable factors of humiliation, annoyance, anxiety and deprivation suffered by the respondent are not in my opinion matters which can be adequately compensated or measured pecuniary damages. In my opinion,this is a case of prima impression is and the impression should not be oriented that either the court condones arbitrary and oppressive exercise of executive by awarding nominal damages or that it should constitute windfall in pecuniary damages, whenever a citizen suffers from such exercise of power as the award in this case demonstrates.
The award of N250.00 made by the trial Judge to the respondent is ridiculously low in the circumstances of this case. The respondent has been routinely picked up since 1972 whenever a robbery offence is committed in the neighbourhood.
The award is an exercise of judicial discretion, and its essence is that on the same set of facts two minds may not meet without the other being wrong. But the conclusion to be drawn from the same set of facts should not be too different where the principles or objectives are the same. It takes into account factors such as humiliation, anxiety and deprivation suffered in addition to value of time lost during the detention and mental agony. In the circumstance of this case, an award of N17,500.00 will meet the justice of the case the judgment of the court below is, therefore varied, to this extent.
The main appeal fails and it is hereby dismissed. The judgment of Fawehinmi, J.,is affirmed save as to damages. The case against the second appellant is however struck out, the second appellant not being a juristic person.
The cross-appeal succeeds. The judgment of the court below is varied as to the amount of damages awarded which is hereby enhanced to N17,500.00. There is order as to costs which is assessed at N400.00 in favour of the respondent.
Other Citations: (1989) LCN/0074(CA)
