Mr. Simeon Chijioke Agu V. Emeka Okpoko (2009)
LawGlobal-Hub Lead Judgment Report
REGINA OBIAGELI NWODO J.C.A.
The Applicant in the High Court commenced an action under the Fundamental Rights (Enforcement Procedure) Rules 1979 by Motion on Notice dated 27th July 2005 and filed 28/07/05 he sought the following reliefs set out in the Statement in support of the application.
2(a) A DECLARATION that the arrest of the Applicant on or about the 20th day of May 2005 and his consequent detention, and degrading treatment by the Nigeria Police at the instance of the 5th Respondent herein are gross violation of the Applicant’s Fundamental Rights guarantee under sections 34, 35, 37 and 41 of the Constitution of the Federal Republic of Nigeria 1999 and a violation of Articles 4, 5, 6 and 7 of the African charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap 10 Laws of the Federation of Nigeria 1990.
(b) A mandatory and perpetual injunction restraining the Respondents whether by themselves or their officials, privies, agents or otherwise howsoever from further arresting, and or threatening to detain and or arraign the applicant herein or in any other manner infringing on the Applicant’s Fundamental rights as guaranteed in the constitution.
(c) The sum of N500,000.00 (Five Hundred Thousand Naira only) as damages for the unlawful, unconstitutional arrest, and detention of the Applicant for sometime by the Police.
Briefly the facts as presented by the Applicant is that the 5th Respondent now the Appellant is the Managing Director of the Computer Systems Association (Nig.) Limited and CSA Investment Limited. Applicant had a retainership with the company and was briefed by them sometime towards the end of 2002 to recover the sum of N1.7million owed to the (5th Respondent) now Appellant, through the sale of a property belonging to their Debtor. The Applicant got a buyer that deposited N3, 000,000.00 (Three million naira) for the property whereof he informed the 5th Respondent who requested for the money to be given to him. The Applicant refused because the transaction had not been concluded. When he received the final payment for the said property, the Isolo Local government invaded the property and marked it “x” because there was no approved building plan. Applicant averred that the crisis as regards the approval and right to the property did not abate until about September 2003. He could not inform the 5th Respondent of the problem because he was engaged in his L.L.M examination at the University of Lagos around that period between September to November 2003.
When he received a letter dated 14th November 2003 from the 5th Respondent accusing him of stealing his money, he replied the letter and issued a cheque for N800, 000.00 after deducting what he termed as the outstanding bill due to him.
The 5th Respondent refused to accept the cheque. Thereafter the Applicant commenced an action in the High Court by writ of summons seeking declaratory reliefs on what is due to the 5th Respondent from the money recovered. He averred that after the suit was commenced the 5th Respondent petitioned to the police alleging stealing of his N1.7milliom by the applicant. Applicant averred he was invited to the Police Station and when he arrived he was detained and made to write a statement. Applicant was later granted bail by the police after he had presented documents on the transaction. He averred that the 5th Respondent in conjunction with the police have conceived to arraign him for trumped up charge of stealing. Applicant proceeded to the High Court, filed a motion exparte seeking leave of court to enforce his fundamental right under the reliefs set out in the statement in support of the application. On grant of leave on 26 July 2005, the Applicant filed a Motion on Notice on 28/07/05 praying for the reliefs earlier set out. The Respondent in response filed a 19 paragraph counter affidavit wherein the deponent averred that the applicant refused to return his money the sum of N1.7million and has fixed the said sum on an interest and thereby converted the 5th Respondent’s money.
The other Respondents did not enter appearance nor defend the action. The 5th Respondent filed a preliminary objection dated 5th of August 2005. Both the Motion on Notice and Notice of Preliminary objection were heard together. The learned trial Judge on 4th of May 2006 in her considered Judgment held that the Federal High Court has jurisdiction to entertain the claim and struck out the Preliminary objection on all grounds on the basis that it lacks merit. In respect of the main reliefs sought, the trial Judge held:
“that the arrest and consequent detention and degrading treatment by the Nigeria Police at the instance of the 5th Respondent are a gross violation of the Applicant’s Fundamental Right and a breach of his right to his freedom, dignity.”
She went further and held:
“I award the sum of N250,00.00 as damages to the applicant against the 5th Respondents”
The 5th Respondent now the Appellant aggrieved and dissatisfied with the decision of the lower court has appealed to this court vides a Notice of Appeal filed on 31/7/06 containing five Grounds of Appeal. In accordance with the Rules of this court Brief of Argument were filed and exchanged between the parties.
At the hearing of the appeal on 10th of March 2009, Mr. Eneonwuta, the learned counsel for the Appellant adopted his brief of argument and filed on 18/12/06 and the Reply Brief filed 9/5/087 and urged the court to allow the appeal and referred to another case UKAEGBU V. NWOLOLO 2007 3 NWLR (PT.1127) 194 PAGE 204.
The learned counsel for the Respondent Mr. E. Okpoko informed the court the Respondent filed a Respondent’s notice to affirm the judgment on other grounds other than the ground relied upon by the court. The notice was filed on 28th August 2006. He urged the court to expunge paragraph 1 -14, 30 – 32, 39 – 40 of the Reply brief because it did not flow from the Respondent Brief. He adopted the Respondent brief dated 15th June 2007 deemed filed on 5/5/08. The Appellant counsel distilled four issues for determination. This issue reads as follows:
- Whether the Trial Court was right when it held the Appellant liable for the alleged unlawful Arrest and detention of the Respondent.
- Whether the conduct of the Trial Judge in no taking into account the implication of the facts contained in the Appellant’s Counter Affidavit has occasioned any miscarriage of justice.
- Whether the Court can in any event award Relief(s) not sought against a party.
- Whether the Trial Judge properly evaluated the affidavit evidence of the Appellant (5th Respondent) and that of the Respondent (Applicant) in giving the verdict against the Appellant.
The Respondent’s counsel formulated 4 issues which read as follows:
Issue 1, whether the requirement of a verifying Affidavit in the application for leave to apply for the enforcement of Fundamental Human Right was satisfied (Ground 1)
Issue 2; whether the learned trial Judge was right to have held the Appellant liable for the arrest and detention of the Respondent (Ground 2)
Issue 3; whether the learned trial Judge was right in his decision after evaluating the affidavit evidence (Ground 3)
Issue 4; whether the learned trial Judge was wrong in awarding damages to the respondent after finding that his arrest and detention was illegal, unlawful and unconstitutional. ”
The learned counsel for the Appellant did not tie the 4 issues distilled to the grounds of appeal in the Notice of Appeal. Notwithstanding, there is no specific provision that issues formulated should be tied to a particular ground, it is paramount, ideal and necessary to do so. The singular advantage of relating grounds of appeal to the issues formulated is to enable the court know or appreciate at a glance whether the issues formulated cover all the grounds of appeal thus saving time. The Supreme Court dealt with the issue of relating issues to the Ground of appeal in UNION BANK OF NIGERIA LTD. V. ODUSOTE BOOK STORES LTD. 1995 9 NWLR (PT. 421) 558
“while it is true that the Rules as regards filing of briefs of argument do not specifically state that counsel must indicate in his brief which of the ground or grounds of appeal are covered by the issue, it is highly desirable that this should be done. This will tremendously assist the appellate Court in relating argument to the issue to the ground of appeal to which they are related, thus, saving the time of the Court and enhancing the quick disposal of the appeal” per Wali, JSC at page 578.
See UZOUKWU V. EZEONU II 1991 6 NWLR (PT. 200) CA 708 per NASIR, JCA.
“The Rules require that the issues to be decided must arise out of the grounds of appeal filed and the court have decided over and over and over again that issues which cannot be spelt out of the grounds of appeal are irrelevant and of no effect.” See also INCAR NIGERIA PLC AND ANOTHER V. BOLEX ENTERPRISES NIGERIA LTD. (1996) 6 NWLR (PT. 454) 318.
The Appellant’s Brief is not in line with the desirable practice of relating the issues formulated to the grounds of appeal. However this will not stop this court from looking at the issues distilled to see if the issues are related to the grounds and consider same as long as each arose from one of the grounds of appeal.
Before then I will consider the preliminary issue raised by the Respondent’s counsel.
Learned counsel Mr. Okpoko contended that no issue was formulated with respect to ground 1 that is whether a verifying affidavit was attached to the application for leave to apply for the enforcement of Fundamental Human Right of the Respondent. It is his submission that in the absence of formulating issue from that Ground it is deemed abandoned. He cited SHEHU IBRAHIM V. JUNAD MOHAMMED (2003) 6 NWLR (PT 817) PAGE 615 AT 633
The Supreme Court and this court in a catalogue of cases have maintained that any Ground of Appeal from which no issue is raised is deemed abandoned. I have looked at Ground one. The Appellant did not distill any issue from Ground one.
Consequently Ground one is deemed abandoned by him and same is struck out. I will now look at the formulated issues.
Under Issue 1, whether the Trial Court was right when it held the Appellant liable for the alleged unlawful arrest and detention of the Respondent. Looking at the Grounds of Appeal this issue is related to Ground 2.
The contents under Ground 2 is the same as the issue one formulated. Mr. Sam Eneonwuta learned counsel for the Respondent submitted that the burden of prove is upon the Respondent at the lower court to establish by credible evidence that he was arrested and detained as he alleged and secondly that his alleged Arrest and Detention was unlawful in the circumstance. He contends that the Respondent did not exhibit any Detention order or bail bond or state for how long he was detained. It is his submission that it is only after Respondent has discharged his duty that the burden shifts on police authority to show by credible evidence that they acted within the limits of powers conferred upon it. He submits that the Appellant is entitled in law to lodge a report to the police against anyone whom he feels has violated his right in a criminal fashion and that this accords with public policy. He cited the cases of S.P.D.C. (NIG) LTD. V. OLAREWAJU (2002) NWLR (PT. 792) 38 AT 46, EJIOFOR V. OKEKE 2000 7 NWLR (PT. 665) 363 AT 367
Learned counsel submits that the lower court was in error to have held the Appellant liable for Respondent’s mere allegation of unlawful arrest and detention without proof.
Mr. E Okpoko in his brief submits that where a person is shown to have been arrested and detained by another person, the onus is on the person arresting to show that the former was arrested and detained on reasonable suspicion of his having committed a criminal offence or that the arrest was reasonably necessary to prevent his committing an offence. He submits further that the test of determination whether the grounds for arrest and detention is reasonable is an objective one namely whether the facts, were within the knowledge of the person arresting or instigating the arrest at the time of the arrest, or are there circumstances shown from which it could be inferred that the person arrested and detained committed a crime. He cited C.O.P ONDO STATE V. OEOLO (1989) 5 NWLR (PT. 120) 130 AT137, and OTERI V. OKORODUDU 1970 ALL NLR 194 AT 200.
The crux of issue one is whether the learned trial Judge was right to find the Appellant liable for the arrest and detention of the Respondent. This requires a scrutiny of the Judgment of the lower court to ascertain whether the Appellant was found liable for the arrest and detention of the Respondent. I have gone through pages 145 – 158A of the Record of Appeal. On page 155 of the record the trial Judge made the following finding:
“Therefore I accept the depositions on police arrest, detention and intimidation at the instance of the 5th Respondent to be the true position in the Statement of Applicant……………………..
The learned trial Judge made this findings and then proceeded to hold on page 156 – 157:
“I find and hold that the Nigerian Police at arrest and consequent detention and degrading treatment by the Nigerian Police at the instance of the 5th Respondent are a gross violation of the Applicant’s fundamental Rights and a breach of right to his freedom, dignity”
The words used in the judgment of the lower court are clear and unequivocal the decision of the court on liability for arrest and detention was against the police authority. That is the 2nd – 4th Respondent who are not parties in this appeal. There was no decision by the learned trial Judge holding the 5th Respondent now appellant liable for the arrest of the Respondent. The court found intimidation on their part but not that he is liable for the arrest and detention. Having gone through the entire Judgment of the lower court there is no decision of the court on which Ground 2 is predicated on. For emphasis I reproduce Ground two.
“The learned trial Judge was in error to have held the Appellant (then 5th Respondent in the lower court) liable for the (alleged) arrest and detention of the Respondent by the police (the 1st to 4th Respondent in the lower court)”
This Ground two refers to a decision of the court wherein Appellant was found liable for (alleged) arrest and detention by the police.
The lower court found intimidation at the instance of the Appellant but did not find him liable for arrest and detention. This Ground 2 is not based on any decision of the lower court.
The statement of the trial Judge on page 158 of the record further reflects that the Appellant was not found liable when the lower court said:
“The relief ought to have been against the 5th Respondent who set up a trumped up charge, in view of the court processes”
This is not a decision but a mere statement of what should be. Therefore Ground two did not arise from the Judgment of the trial Judge. The law is settled that grounds of appeal must be derived from the ratio decidendi of the decision of the court in the ruling or judgment appealed against. Any ground of appeal which does not arise from the judgment appealed against is incompetent and liable to be struck out. See NWANKWO & ANR. V. ECUMENICAL DEVELOPMENT CO-OPERATIVE SOCIETY (EDCS) V.A. (2007) 5 NWLR (PT. 1027) 377, CO-OPERATIVE & COMMERCIAL BANK PLC V. EKPERI (2007) 3 NWLR (PT. 1022) 493, CHRISTABEN GROUP LTD. V. 0 E (2008) 11 NWLR PT. (1097) CA. 84.
Once the ground of appeal is faulty it is incompetent as in the instance case.
Ground two is incompetent and issue one related to Ground two is equally incompetent. See AMADI V. ORISAKWE (1977) 7 NWLR (PT. 511) 161. In the circumstance the appropriate order to make is one to strike out of Ground 2 and issue one goes with it as it is founded on nothing. Issue one is struck out.
I will consider issue two and four together which is on whether the conduct of the trial Judge in not taking into account the implication of the facts contained in the Appellant’s counter affidavit has occasioned any miscarriage of Justice and whether the trial Judge evaluated the affidavit evidence of the Appellant and the Respondent in giving the verdict against the Respondent. These two Issues are related to Ground 3 & 5.
It is the contention of Mr. Eneonwuta that the trial Judge did not deem it necessary to summarize the evidence and make findings of fact on the deposition of parties and oral submission of counsel which is against established principles of law that guides court that when there are materials before the Judge upon which he has to assess the evidence of a witness, it is not enough for the Judge to say that he believed any witness or deposition without proper evaluation of the evidence upon which he based his belief. It is his further submission that the conduct of the lower court occasioned injustice on the Appellant which is a total abuse or derogation of Appellant’s right of fair hearing as enshrined in our constitution. He referred the Honourable Court to the Supreme Court decisions in SAGA Y V. SAJERE 2004 4 SC. PART I. It is his further submission that the trial Judge based its verdict on speculation and the alleged suit before the Lagos State High Court. Issues 2 and 4 distilled by the Appellant are anchored on evaluation of evidence. The Supreme Court in LAGGA V. SARTUNA 2008 16 NWLR (PT. 1114) SC 427. Succinctly captured the principle on what is required in assessment of evidence. Tabai, JSC held:
“The settled principle of law is that evaluation of evidence is a duty which falls almost exclusively within the domain of the trial court which alone has the unique advantage of seeing and hearing the witnesses in the course of their testimonies. Ordinarily therefore, evaluation of evidence is not the business of the appellate court.
Where however there is failure of evaluation or adequate
A. evaluation by the trial court despite its unique opportunities of seeing and hearing the witnesses, the findings would not be supported by the evidence on record and would therefore be perverse. In such a case, the appellate court has a duty to intervene by embarking on its own evaluation of the evidence, accord probative value thereto and
B. make its own findings if the evaluation would not entail the determination of the credibility of witnesses. These are the principles in cases like Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 192 at 18; Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360; Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24 at 39. Where the evaluation would
C. entail the determination of the credibility of witnesses, the appellate court cannot evaluate. The only option in such a situation is an order for retrial.”
A court of law is under a duty in evaluating any piece of evidence placed before it by parties to consider the totality of the evidence led by each of the parties. The court shall place the evidence on the imaginary scale of justice to see which of the two sides weighs more creditably than the other. Therefore evaluations of evidence by a trial court should involve a reasoned belief of the evidence of one of the contending parties and disbelief of the other or reasoned preferences of one version to the other in the evaluation of evidence.
An appellate courts role is to (1) look at the evidence before the court to ascertain whether the trial court accepted or rejected any evidence upon the correct perception, (2) whether it placed the right probative value on it (3) whether it used the imaginary scale of justice to weigh the evidence on either side and (4) whether it appreciated upon the preponderance of evidence which side of the scale weighed heavier having regard to the burden of proof. See ABISI V EKWEALOR 1993 6 NWLR (PT 302) 643; OLOWOAKE V SALA WU 2000 11 NWLR (PT. 677 & 127.), EGONU V EGONU 1978 11-12 SC PG. 11, ANYAFULU V AGAZIE 2006 5 NWLR (PT. 973) CA 260.
Therefore the attitude of the Appellate court in respect of evaluation of evidence of a trial court is to decide whether or not the trial court properly evaluated the evidence, the essential focus should be on whether the trial court made proper findings and reached the correct judgment upon facts before it. The method or approach is not important. See WOLUCHEM V GUDI 1981 5 SC 291. The totality of the evidence must be considered. The Appellant raised the issue of evaluation of evidence and consideration of the contents of the counter affidavit.
The learned trial Judge in her Judgment on page 156 of the record of Appeal stated as follows:
“I have scrutinized the counter Affidavit of the 5th Respondent and have not seen any reason adduced for the report to the police for stealing, arrest and detention. This surely is an abuse of power and coming to the ground in the preliminary objection that the Applicant has abuse the court’s processes and utilizes it as an engine of fraud”
Furthermore on page 155 of the record the lower court found:
“The 5th Respondent has not denied the facts of a legal relationship between them in the counter affidavit nor was that fees due. They alleged withholding of purchase sum they did not denying the police petition or arrest and detention of Applicant at their instance”
The Appellant in his 10 paragraph counter affidavit concentrated on facts as to retainership granted to the Respondent, and on the allegation of Respondent selling and withholding the money which he described as converting the money. The main cause of complaint by the Respondent commencing the action under the fundamental Right proceeding, is whether there was an arrest, whether it was lawful or not and whether there was intimidation by the Appellant. The Respondent averred to several material facts in the affidavit in support of the motion on notice alleging a petition was written, by Appellant, he raised issue of intimidation, the report by the Appellant to the Bar, and the existence of Civil Suit in the High Court. This fact’s were not specifically denied.
The learned trial Judge clearly considered the averments in the counter affidavit when she stated that the Appellant did not deny the petition, the fact that fees were due. The court then considered the purpose of denial in a counter affidavit, which is to deny the averments in the affidavit.
It is trite law that averment in an affidavit where not challenged and controverted by the adverse party the trial court has the right to deem same as admitted by the adverse party. See EGBUNA V. EGBUNA (1989) 2 NWLR (PT. 106) 773.UB, DANGARDI V. JIBRIL (1977) R4 NWLR (PT. 501) 590 and NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (PT. 135) 688
Once a party has averred to facts in an affidavit it behoves on the adverse party to contradict those facts in a counter affidavit if they do not represent the true position. The exception however is where averments in the affidavit in support of an application are contradictory or if taken together are not sufficient to sustain the applicant’s prayers; then a counter affidavit in challenge of such averments would become unnecessary. See ORUNLOLA V. ADEOYE 19956 NWLR (PT. 401)
In effect the affidavit evidence once not challenged it ought to be accepted as true.
See ALAGBE V. ABIMBOLA 1978 2 SC 39 AT 40, AGBAJE V. IBRU SEA FOODS LTD. (1972) 5 SC 50 AT 55
In the instance case the Respondent in his affidavit in support of the Motion on Notice averred to the following facts on his arrest which I reproduce for emphasis:
- That this is a purely civil suit which is already at the Lagos High Court in suit No. LD/666/05 attached and marked exhibit “G” & “H” are copies of the writ of summons and statement of claim in the said suit.
- That the 5th Respondent petitioned to the police fraudulently alleging stealing of his N1.7 Million.
- That the 5th Respondent arranged with the police to come to the applicant’s office, handcuffed, embarrassed and whisk the Applicant away to Panti Police Station.
- That on getting to the Police Station, the Applicant was detained and he was made to write a comprehensive statement at the station.
- That the Applicant gave to the police copies of all court processes evidencing the fact that the Applicant’s case is simply a set off and counter claim.
39.That the Applicant was later granted bail by the police after seeing the Applicant version of the case.
40.That since then the Applicant had continued to report monthly to the Panti Police Station still date.
41 That the 5th Respondent has joined issues with the Applicant in the suit but the 5th Respondent is still making some clandestine arrangement to deal with the Applicant.
Attached and marked exhibit “J” is a copy of statement of defence filed by the 5th Respondent in the High Court matter.
42 That to the Applicant’s greatest shock the police having seen copies of all court processes and the 5th Respondent defence in the matter, the 5th Respondent could still move the police to insist on arraigning the Applicant.
- That the Respondents have at the instance of the 5th Respondent detained and threatened to further arrest and arraign me on a purely civil transaction and if the Honourable Court does not come to my aid, the Respondents are ready to carry out this illegal and unlawful act against the Applicant.
55.That the said transaction is purely civil in nature and it’s not within the statutory duties of the Nigeria Police to recover debt if any, nor has the 5th Respondent exercised or exhausted the mod of settling disputes as contained in the laws of our land paticularly when the case is pending before the Lagos High Court.”
The Appellant did not contradict any of the above averment in his counter affidavit.
Furthermore it is the Appellant’s submission that he is entitled to lodge a complaint to the police, when he feels his right has been violated in a criminal fashion. That entitlement is protected as long as it is not found to be false information. In the instance case the trial Judge found that the Appellant instigated the arrest and detention. The Appellant did not controvert the several paragraph of the affidavit containing averments that the Appellant used his financial strength to get the police to arrest him and plan to arraign him just to humiliate him. These facts were not denied by the Appellant and the trial court rightly deemed those averments as admitted.
The 1st to 4th Respondents in the lower court did not file a counter affidavit to controvert the strong allegations by the Respondent as the trial Judge found they were served with processes. Facts averred in the affidavit on arrest and detention have not been justified nor challenged in a counter affidavit, consequently the unchallenged facts were deemed admitted; and the content did support the case of the applicant on arrest. See OGOEJEOFO V. OGOEJEOFO (2006) 3 NWLR PT 966 SC. 205. The Respondent in paragraph 33 averred to the fact that 5th Respondent petitioned to the police alleging stealing. This material fact on issue of petition was not denied by the Appellant. This is a relevant fact to the relief sought. The question of whether he was arrested and detained is for the 2 to 4 Respondent as police officers that effected the arrest and detention to respond too, not the appellant who was not cited as present during the arrest and detention. The 2 – 4 Respondent did not react to all the averment in the affidavit despite the finding on service on them. The trial judge rightly accepted the facts as true.
Furthermore in paragraph 49 of the affidavit, in support of application (see page 58 of the record), the Respondent averred to facts on the Appellant using his financial position to influence the police. This fact was not denied. I agree with the submission of the learned counsel for the Appellants that the onus is on the Respondent to establish by credible evidence that the arrest and detention of the Respondent was unlawful. The Respondent need not present his Bail bond as contended when the averment on detention has not been challenged. The depositions on same must be deemed to be true and correct. NIGERIA NAVY V. GARRICK 2006. 4 NWLR (PT 969) 69. I must, state that the powers conferred on the police under section 54 of the Police Act is subject to statutory condition and constitutional provision on fundamental Right. It is trite that where a statute vests specific powers in an institution and the exercise of such powers becomes an issue the institution vested with such powers must provide proof that the powers were exercised in the manner provided by law. EJIOFOR V. OKEKE 2000 7 NWLR (PT. 665) CA 363.
It is not the practice of this court to interfere with the evaluation of evidence and ascription of probative value by the lower court except where the finding of the Courts are not in line with the evidence before the court or are perverse. See MAY V. OSHINTOKUN 2001 11 NWLR (PT. 723) PAGE 62, ASINOLA V. FATODU 2009 6 NWLR (PT. 1136) CA 184.
The trial Judge properly evaluated the affidavit evidence before making its findings on arrest, detention and intimidation. See FAGBENRO V. AROBADI 2006 7 NWLR (PT. 978) SC 172; MOGAJI V. ODOFIN 19783 – 4 SC 91.
The material findings of the trial Judge is supported by the totality of evidence on record on issue of petition, arrest, detention and intimidation. I see no reason to interfere with that finding. The police authority did not. Section 4 of the Police Act conferred powers of arrest on the police but same is subject to statutory conditions and constitutional provisions on fundamental Right.
In respect of whether the trial Judge can look at the documents exhibited in the affidavit, these documents are processes filed in the High Court. They form part of the affidavit evidence. The existence of these documents were not denied nor controverted in the counter affidavit. They remained unchallenged, admissible and the lower court rightly referred to them. They are not extraneous matters but evidence in support of the averment by the Respondent that the dispute is not a criminal matter but civil hence his going to the High Court to determine what is due to the Appellant. Where evidence is adduced before a trial Court in a civil suit it is expected to evaluate the evidence before arriving at its decision. See FAGBENRO V. AROBADI 2006 7 NWLR (PT.978) SC 172. It is trite that the best evidence of the contents of a document is the production of the document.
The trial court did evaluate the affidavit evidence and appraised the relevant facts therein and he rightly referred to the exhibits on processes in the civil suit in the High Court. Having known that it is not the business of the appellate court to substitute its own views for the views of the trial Judge; in the absence of its being perverse. MOGAJI V. ODOFIN 1978 4 SC. 91 , ODOFIN V. AYOOLA 1984 11 SC 72, EZEUKWU V. UKACHUKWU (2004) 17 NWLR (PT. 902) 227, FAGBENRO V. AROBADI (supra). In the circumstance Grounds three and five fails. Issues two and four predicated thereon also fails.
Issue 3 is related to Ground 4. It is Mr. Eneonwuta submission that the learned trial Judge was in error to have awarded the sum of N250,000.00 against the appellant as exemplary damages when the relief sought by the Respondent was only against the police. It is his further contention that the Respondent did not establish any injury suffered for the court to award damages. Mr. Okpoko in response submits that since the arrest and detention of the Respondent has been found by the trial Court to be illegal and unlawful the court undoubtedly had the duty to award damages. He cited the cases of UZOUKWU V. EZEONU (1991) 6 NWLR (PT. 200) 708 AT 751
It is his further submission that where as in the instant case the Respondent had been wronged by the appellant’s illegal arrest and detention. It is the duty of the courts to provide a remedy. He cited BELLO V. A. G. OYO STATE 1986 5 NWLR (PT. 45) 828 AT 871. It is his further contention that the right to damages is enshrined in section 46 (2) of 1999 Constitution, and that the absence of express provision in the constitution will not stop the court from awarding damages where it is not claimed, once violation of fundamental rights has been established. The learned counsel for the Respondent in his brief dealt extensively on the position of the law on when the courts will award General, nominal or pecuniary damages.
The learned counsel for the Appellants in his inelegantly drafted reply brief reargued his appeal on same facts. Learned counsel for the Respondent rightly noted the paragraphs of the reply Brief that did not arise from the Respondent’s Brief. To that extent those paragraphs are discountenanced. A reply brief is limited to contain reply to the Respondent’s Brief on points of law. A reply brief need not repeat an argument in the appellant’s brief. Equally if the Respondents brief has joined issues with the appellant’s brief, the Appellant need not repeat the issue joined by emphasis. See OCHEMAJE V. STATE 2008 ALL FWLR (PT.435) SC 1661. Relief 1 sought by the Respondent in the lower court was for declaration of his arrest and detention by the Nigeria Police at the instance of the Appellant as unconstitutional. The trial Judge found the arrest and detention unlawful. The act of arrest and detention was that of the 2nd – 4th Respondent in the lower court. No evidence was lead that the Appellant actually arrested and detained the Respondent; evidence is that he prompted the arrest by his petition.
The petition if found false can precipitate another civil action against the Appellant but that is not the cause of action in the present case. The claim before the court is limited to the police officers that arrested the Respondent. The police did not defend the action or appear to tell the court whether the information given in the petition is false nor the outcome of the investigation. Matters founded on fundamental rights must be specific and precise on whom is alleged to infringe the right of another and whose right is infringed. It is indisputable looking at the relief for declaration on arrest against the police and the claim for damages for the unlawful arrest is against the police not the Appellant. The duty of the Applicant was then to aver to material facts to prove same. He cannot get more than the reliefs claimed. The learned trial Judge is confined to those reliefs sought. Where a party seeks a relief from the court and proves his right to same, the court is duty bound to grant the relief to that party, on the other hand the court cannot grant a relief which was not sought for by a party, this is because the court cannot make a case for the Applicant. Where an award of damages is made in such a situation where there is no claim for damages against the Appellant as in the instance case an appellate court is duty bound to set same aside. See ATIVIE V. KABELMETAL (NIG) LTD. 2008 10 NWLR (PT. 1095) SC. Learned counsel for the Respondent raised the issue of an award of exemplary damages. The Respondent did not make a claim of exemplary damages, which are damages usually awarded whenever the Defendants conduct is adjudged by the court as outrageous to merit punishment such as where it discloses, malice, fraud, in silence flagrant disregard of the law. See ELIOCHIN (NIG) LTD V MBADIWE 1986 1 NWLR (PT.14) 47. DAHIRU V KAMALE 2005 9 NWLR (PT.929) CA 8. In my respectful view the Appellant conduct of rushing to petition the police when the subject matter of the dispute was already before the Civil Court filed by the party he alleged stole from him; was not in good faith and this is a case for exemplary damages but Respondent did not claim some. The right of the Respondent was determined on the claim before the court. There is no doubt that in the determination of action, the court may make incidental orders which flows naturally from the relief claimed.
The court can so do if there is a finding of injury against the party.
The trial Judge on page 158A held:
“On the 5th prayer, the law is trite that the law presumes that damages flows naturally from the injury suffered by the victimized as a result of infraction of its fundamental Rights even if the Applicant has not sought any damages the law presumes that the damages flow naturally from injury suffered and should be awarded ….. ”
The lower court is right on the principle of law but same does not apply in the present circumstance. This court is not generous in granting reliefs not sought for.
The learned counsel to the Respondent filed a Notice of intention to contend that the Judgment of the court below be affirmed as to award of damages against the Appellant other than those relied on. One of the grounds is that the Respondents claim for damages is also against the Appellant and not the police alone. This is not evident from the relief sought by the Respondent in the lower court. The claim for damages was clearly against the police. The crux of the contention on the notice is that since the facts on arrest and detention at the instance of the Appellant are deemed admitted the Respondent had established his claim for damages. The acceptance of unchallenged facts does not give the trial Judge the power to award damages when there is no relief sought therefrom.
Generally the Appellate courts are reluctant to exercise their power to reassess damages which the trial Judge had awarded. However where it is shown that the trial Judge proceeded upon a wrong principle of law then the appellate courts will interfere. See AKINKUGBE V. EWULUM HOLDINGS NIG. LTD. 2008 ALL FWLR (PT. 423) S.C. 1269.
In the instance case the respondent did not seek an order for damages against the appellant but the police who unfortunately are not parties to this appeal. The court having found the arrest and detention unlawful should have ordered damages against the 2nd – 4th Respondent in the lower court not against the Appellant. The appeal succeeds in part on the basis of Issue 3. I therefore set aside the order of the lower court made on 4/5/2006 awarding damages in favour of the applicant in the sum of N250,000.00 against the 5th Respondent.
I make no order as to cost.
Other Citations: (2009)LCN/3290(CA)
