Mrs. Ngozi Chile Oparaocha & Anor V. Barr. Emeka A Obichere & Ors (2016) LLJR-CA

LawGlobal-Hub Lead Judgment Report

FREDERICK O. OHO, J.C.A.

This is an appeal against the Judgment of the High Court of Imo State Holden at Mgbidi and delivered on 25th day of February, 2013 by K. A. ORJIAKO, J in which the 1st Respondent as Applicant commenced the action via a Motion on Notice dated the 8th day of December, 2012 for the Enforcement of his Fundamental Human Rights to personal liberty, Freedom of movement and dignity of human person as guaranteed under sections 34, 35 and 41 of the 1991 Constitution of the Federal Republic Nigeria (As amended).

The Application had in its support an affidavit of 30 paragraphs together with Exhibits thereto and the Written Address of Counsel seen at pages 1 to 27 of the Records of Appeal. The 1st and 2nd Appellants then as 1st and 2nd Respondents in reaction to the affidavit of the 1st Respondent filed their Counter Affidavit of 24 paragraphs with Exhibits thereto and a Written Address of Counsel filed on 17th December, 2012 seen at pages 40 to 57 of the Records. The 1st Respondent in reaction to the Appellant€™s Counter Affidavit filed a further affidavit of another 30 paragraphs with Exhibits thereto together with another Written Address filed on 8th day of January, 2013, seen at pages 60 to 70 of the Records. In reaction to the fresh issues raised by the 1st Respondent, the Appellants filed a further counter affidavit of 18 paragraphs together with another Written Address filed on 15th January, 2013 and seen at pages 73 to 79 of the Records.

On 16th day of January, 2013, the 1st Respondent appeared in person and he and learned Counsel to the Appellants adopted their Written Addresses which resulted in the judgment herein appealed against. The 1ST Respondent as Applicant also accompanied his Application with Statement filed pursuant to Order 2 Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, stating his names, address and other descriptions in addition to the Reliefs sought which are hereby reproduced here as follows;

1. A Declaration that the arrest and detention of the Applicant by the 3rd to 6th Respondents and in particular at the orders of the 6th Respondent and at the instigation of the 1st to 2nd Respondents for no justifiable reason or any offence known to law is illegal, unconstitutional and a gross infraction/violation of Applicant€™s Fundamental Rights to personal liberty and freedom of movement as respectively guaranteed under Sections 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria.
2. That the extortions, harassments, embarrassments, threats and/or torture of the Applicant by the 3rd to 6th Respondents and in particular the 6th Respondent who at the instigations of the 1st to 2nd Respondents detained the Appellant in his night dress at Owerri Urban Police Station from 8am to 4pm for no justifiable offences known to law is an infraction of Appellant€™s Fundamental Rights to dignity of his person and freedom of movement as respectively guaranteed under Sections 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria.
3. Fifty (50) Million Naira only jointly and severally against the Respondents being compensations for the inexcusable/unjustifiable violations of Applicants Rights as dully guaranteed.
4. An Order of injunction restraining the Respondents and in particular the 3rd to 6th Respondents by themselves, their agents, servants, privies, workman from further arresting, detaining, embarrassing and conducting any other proceedings in respect of the ground or related grounds that lead to the breaches complained against.

On the 16-2-2013, the Lower Court gave judgment in favour of the Applicant who is 1st Respondent herein and awarded the sum of N3,000,000.00 in his favour. The judgment is seen at pages 81 to 96 of the printed records. It is against that judgment that this Appeal has been instituted vide a Notice of Appeal dated the 26-2-2013 and filed on the 27-2-2013. There are Four Grounds of Appeal filed, which without their particulars are reproduced as follows;

GROUNDS OF APPEAL;

1. The learned trial judge erred in law when he assumed jurisdiction to hear the Respondent€™s suit predicated on alleged breach of Fundamental rights.
2. The learned trial judge misdirected himself in law when he discountenanced a further counter affidavit filed on 1st January, 2013 by the Appellants on the ground that same was filed without leave of Court which misdirection occasioned a miscarriage of justice.
3. The learned trial judge erred in law when he entered judgment for the 1st Respondent for alleged breach of his Fundamental Rights.
4. The learned trial judge erred in law when he awarded a whooping sum of Three Million (N3,000,000.00) Naira in favour of the 1st Respondent for alleged threat of his Fundamental Rights.

There are four (4) issues nominated for determination by the Appellants as follows;

1. Whether the trial Court properly assumed jurisdiction to hear this suit.
2. Whether the trial Court was right to have discountenanced the further Counter Affidavit filed by the Appellants in the case.
3. Whether the Appellants breached any of the Fundamental Rights of the 1st Respondent.
4. Whether the damages awarded by the trial Court in favour of the 1st Respondent is not excessive in the circumstance.

Learned 1st Respondent€™s Counsel had no difficulties adopting the issues nominated by learned Appellant€™s Counsel and upon which both sides addressed Court extensively, citing a plethora of decided cases. Appellants€™ brief of Argument was settled by L. M. ALOZIE ESQ., while that of the 1st Respondent was settled by S. C. IMO ESQ. On the 3-3-2016, at the hearing of the Appeal, learned Counsel for the parties adopted the Briefs of arguments and urged the Court to resolve the Appeal in favour of their clients. It may however, be proper and just before doing that to give a brief resume of the facts of this case as follows;

Trouble began between the parties sometime in July, 2012, when the Appellants took on rent the 1st Respondent€™s duplex apartment, which was on a rent of N750,000 a year. By the way, the 1st Respondent is a Legal Practitioner. As owner of the duplex apartment, it was agreed between the parties that the Appellants would pay two (2) years rents amounting to N1.5 Million and an additional sum of N100,000 lawyer€™s agreement fee making it the sum of N1.6 Million. The 1st Appellant however, pleaded to be allowed to pay N1 Million part payment and the balance of N600,000.00 on or before 30th October, 2012. As things eventually turned out, the Appellants failed to pay and asked for more time to the 2/11/2012 and later to the 4/11/2012; but never paid until 6/12/2012, when 1st Respondent received an alert for the sum of N300,000.00 paid into his account by the 2nd Appellant and husband of 1st Appellant. The 1st Respondent was infuriated by this and he called the 2nd Appellant on phone and told him he would issue him a cheque returning the N300,000.00 and thereafter they would review their state of account so that 1st Respondent would refund the Appellants the balance of rent already paid to enable them pack out.

Still enraged, 1st Respondent went to the Appellants€™ house but met only their 10 year old daughter at home. The 1st Respondent was said to have threatened the 10 year old girl that he would deal with the Appellants with thugs such that the 10 year old girl became scared and informed the 1st Appellant about the threats made by the 1st Respondent. The 1st Appellant in turn informed the 2nd Appellant about the threats and he advised her to incident a report with the police. The 1st Respondent thereafter informed the 2nd Appellant that he would come to the Appellants€™ house the next day being 7/12/2012 for settlement of accounts but the 2nd Appellant asked him to wait till weekend when he would be around since he lived in Port Harcourt and then his wife 1st Appellant who is a Banker would not go to work and so also be available for discussions. However, despite the reasons given by the 2nd Appellant to the 1st Respondent, 1st Respondent still on the said 7/12/2012, came to the house of the Appellants around 6:30am with three other persons and knocked on the door in such a manner that the 1st Appellant was convinced that he came to keep his threats and so called the 5th Respondent who sent his men to the house. Upon the arrival of the police, the other three persons were said to have taken to their heels and the police went to the 1st Respondent to inquire about the situation but he was said to have ignored them and also refused to talk with the 5th Respondent their D.P.O who called on phone.

This made the D.P.O to call for re-enforcement; this second set of policemen came and asked the 1st Respondent to follow them to their station since he did not want to speak with their D.P.O. but he resisted and called his wife on phone and asked the police if they knew who he is and that his wife is a magistrate. The 1st Respondent€™s wife arrived soon thereafter and solicited with the police to allow 1st Respondent get properly dressed. The police obliged her and followed the 1st Respondent to his house, after he got properly dressed he was taken to the Station where he was asked to write his statement and after the statement he was said to have left same day.

The 1st Respondent brought the Suit at the Court below for the Enforcement of his Fundamental Rights. The Appellants responded by the filing of their Counter Affidavit in opposition of same. In reaction, the 1st Respondent filed a further affidavit raising fresh facts which the new Counsel for the Appellants felt was necessary to react to and so filed a further Counter Affidavit. However, the Court in delivering its judgment discountenanced the said further Counter Affidavit on ground that the Fundamental Rights Rules does not permit a further Counter Affidavit and that even if such would be considered by the Court in the interest of justice, leave of Court must 1st be sought but that in this case, the Appellants did not seek his leave. The Court then granted the reliefs of the 1st Respondent and awarded him N3 Million damages jointly and severally against the Appellants and the other Respondents. The Appellants being dissatisfied therefore appealed to this Court.

ARGUMENTS BY LEARNED APPELLANTS€™ COUNSEL;

ISSUE ONE;

Whether the trial Court properly assumed jurisdiction to hear this suit

It was the contention of learned Counsel that with the parties all residing in Owerri and the purported infraction of the rights of the 1st Respondent taking place in Owerri together with the fact that the police whose activities are complained of also stationed in the Owerri Urban Police Station Owerri, the subject matter of the suit cannot be said to reside outside the Owerri Judicial Division. Counsel cited the case of ARJAY LTD vs. AIRLINE MAGT. SUPPORT LTD (2000) 8 NWLR (PT. 670) 636 @ 638, ratio 3.

Learned Counsel contended that the 1st Respondent€™s act of bringing the Suit before the High Court Mgbidi when there are 9 High Courts sitting at Owerri amounted to forum shopping and an abuse of the legal process. He also cited the case of EMELUMBA vs. ONUIGWE (2011) 13 NWLR (PT.1265) 449 @ 461. Counsel said that though Section 46(1) of the 1999 Constitution vests the right to hear Fundamental Rights cases in the High Court of a State where the infringement occurred, that does not mean that just any Court would do, as the Applicant must seek redress before the Court in the Judicial Division where the alleged breach occurred. It was submitted that the division of High Courts of a State into Judicial Divisions is not done for the hell of it or only for administrative convenience, but to foster orderliness, avoid chaos and forum shopping. Counsel argued that the only reason for which the 1st Respondent brought this Suit before the High Court sitting at Mgbidi is because it is the Court where he is sure to get judgment and that he got judgment. Counsel also contended that the Court ought in the circumstances of this case to have declined jurisdiction. Counsel also cited the case of THEOBROS AUTO-LINK LTD vs. B. I. A. E. CO. LTD (2013) 2 NWLR (PT. 1338) 337 @ 431 Ratio 3, on the relevance of territorial jurisdiction of a Court for the validity of Court proceedings. It was also submitted by Counsel that where a Court wrongfully assumes jurisdiction to hear a matter and determines same, every decision reached consequently is a nullity. Counsel urged this Court to hold and resolve issue one in favour of the Appellants.

ISSUE TWO;

Whether the trial Court was right to have discountenanced the further Counter Affidavit filed by the Appellants in the case

Learned Appellants€™ Counsel told Court of the sequence with which the processes were filed in the Lower Court as a buildup of the activities towards the Lower Court€™s judgment. He said that the 1st Respondent filed a further affidavit on 9-1-2013 and another written address in reaction to the Appellants€™ Counter Affidavit and that in the said further affidavit the 1st Respondent deposed to facts which the Appellants€™ Counsel in his wisdom knew ought to be reacted to. Sequel to the said Further Affidavit and written address, the Appellants filed a further Counter Affidavit to react to new issues raised in the further affidavit. See pages 60 to 70 and 73 to 79 of the records. Counsel also said that on 16th January, 2013, the day of adoption of written addresses, the Counsel to the Appellants relied on both their Counter Affidavit and written address and their Further Counter Affidavit and written address. But that in delivering its judgment, the Court suo motu raised the issue of the propriety of the further Counter Affidavit filed by the Appellants and held that the use of Further Counter Affidavits is not contemplated by the Fundamental Rights (Enforcement Procedure) Rules and that as such for the Appellants to file and make use of a Further Counter Affidavit, they must do so on proper application for leave of Court and that for having not done so that he cannot countenance same and so struck it out. See pages 80 to 83 of the Records. See also pages 86 to 88 of the Records. It was the submission of learned Counsel that having the issue suo motu the learned trial judge ought to have called upon both Counsel to address him on it before taking his decision one way or the other on the issue. Counsel cited the case of ONAH vs. OKENWA (2010) 7 NWLR (512 @ 518 Ratio.

It was also submitted that the trial Court in striking out the Further Counter Affidavit of the Appellants, breached their fundamental rights to fair hearing. Counsel contended that a hearing cannot be said to be fair, if any of the parties is refused hearing or denied the opportunity to be heard or present his case. He said that the Appellants filed a Further Counter Affidavit reacting to fresh matters deposed to by the 1st Respondent in his Further Affidavit for which, if the Appellants had failed to react to, would have been deemed admitted by them. But that the Court misguided itself and struck out the Further Counter Affidavit and written address by Appellants, thereby denying them the opportunity of presenting their case as they deem best. Counsel cited the case of F.B.N. Plc vs. T.S.A. Ind. Ltd (2010) 15 NWLR (Pt. 1216) 247 @ 259 Ratio 10, on the issue.

On the failure of learned Appellants€™ Counsel to ask for leave of court to make use of the Further Counter Affidavit, Counsel contended that that cannot in anyway adversely affect the 1st Respondent€™s position as the Appellants were only reacting to issues raised by him in his own Further Affidavit. On account of the Court€™s decision that the Fundamental Rights (Enforcement Procedure Rules) does not contemplate the filing of Further Counter Affidavits, it was submitted by Counsel that the Fundamental Rights (Enforcement Procedure) Rules is a subsidiary legislation which cannot override the provisions of a principal legislation such as the Constitution of the Federal Republic of Nigeria which guarantees fair hearing to parties to a case. Counsel said that the denial of the Appellants of the opportunity to react to issues arising from the Further Affidavit is a denial of their right to fair hearing and that if the Fundamental Rights Rules; a subsidiary legislation purports to deny them of this right then, its said provisions cannot be allowed to stand. He cited the case of KENNEDY vs. INEC (2000) 1 NWLR (Pt. 1123) 614 @ 626 Ratio 22, on the issue. See also the cases of KATTO vs. CBN (1991) 9 NWLR (PT. 214) 126 133; TOUTON S. A. vs. G.C.D.N.Z.S.P.A. (2011) 4 NWLR (Pt. 1236) 1 @ 12 Ratio 19.

These arguments, apart, Counsel submitted that the learned judge misdirected himself on the Rules as it is not correct to say that the Fundamental Right (Enforcement Procedure) Rules 2009 did not contemplate the filing and use of Further Counter Affidavits. It was argued by Counsel that Order VI Rule 2 of the said Fundamental Right (Enforcement Procedure) Rules provides thus:

€œThe Court may on the hearing of the application allow the statement to be amended and may allow Further Affidavits to be used if they deal with new matters arising from the Counter Affidavit of any party of the application.€

Counsel submitted that the expression; €œFurther Affidavit€ as used in the above con includes a Further Counter Affidavit and the expression; €œCounter Affidavit€ as used in the con above also includes a Further Affidavit. It was the argument of Counsel that this can be deduced from the phrase; €œif they deal with new matters arising from the counter affidavit of ANY party to the application. Counsel therefore submitted that the import of Order VI Rule 2 is that where any of the parties raise fresh issues in its affidavit, (used in generic form) i.e. Affidavit or Counter Affidavit, the other party me be allowed by the Court to use a Further Affidavit or Further Counter Affidavit filed in reaction to the new issues raised. It was further argued that the above provisions of the Rules, empowers the Court to allow ANY party to the pending application, to respond to the Affidavit of the opposing party and that the expression; €œCounter Affidavit€ used in the Rules of Court means nothing but Affidavit Evidence and also includes an applicant€™s Further Affidavit. Counsel cited the case of EJIKEME vs. IBEKWE (1997) 7 NWLR (Pt. 514) 592 AT 597 paragraph B €“ C; See also the case of OKUMAGBA vs. ESISI (2004) ALL FWLR (Pt. 228) at 727, where it was held that Courts should endeavour to do substantial justice to cases before it and not decide cases on the basis of technicalities.

Counsel submitted that having denied the Appellants the use of their Further Counter Affidavit, their Fundamental Rights to fair hearing has been breached and that it is not important whether the Court would have still arrived at the same decision even if they had been allowed the use of it. He said that the right to fair hearing lies in the procedure followed in the determination of the case and not in the correctness of the decision arrived at in the case. He cited the case of F.B.N. vs. T. S. A. IND. LTD (Supra) @ 258 Ratio 9, where the Court held thus:

€œThe right to fair hearing is guaranteed by Section 36 of the 1999 Constitution to every Citizen of Nigeria. It cannot be waived neither can its breach be acquiesced to. The right is a fundamental and Constitutional Right of a party to a dispute to be afforded an opportunity to present his case before the adjudicating authority. The right lies in the procedure and not in the correctness of the decision arrived at in the case.€

Where as in this case a Court in its eagerness to expeditiously dispose of a case denies a party his unfettered right of fair hearing, Counsel argued that the Appellate Court has an obligation to declare the decision null and void. He cited the case of DIDE vs. SELEILETIMIBI (2008) 15 NWLR (PT. 1110) 221 @ 225 Ratio 5. Counsel urged the Court to resolve this issue in favour of the Appellants and also hold that their right to fair-hearing was breached by the trial Court.

ISSUE THREE;

Whether the Appellants breached any of the fundamental rights of the 1st Respondent

Learned Counsel drew attention of this Court to the affidavit evidence of the parties and contended that the main plank of the application the 1st Respondent€™s application at the Lower Court is the breach of a Tenancy Agreement by the Appellants for which the 1st Respondent unleashed threats on them and in reaction while trying to protect themselves, the Appellants made a report to the police. He also contended that the involvement of the police is merely a fall out from the Tenancy dispute which had arisen between the parties.

Learned Counsel further contended that the allegation of breach of Fundamental Rights by an Applicant must be the main plank in the application for the enforcement of Fundamental Rights and that where the violation of Rights is merely ancillary, it is improper to constitute the action as one for the enforcement of Fundamental Rights. Counsel cited the cases of SEA TRUCKS NIG. LTD vs. ANIGBORO (2001) 1 SC (PT. 1) 45, and TURKUR vs. GOVERNOR OF GONGOLA (1989) 4 NWLR (PT. 117) 517 in support. The main plank of the matter in this case, Counsel said, is a breach of Tenancy Agreement and that the learned trial judge also made this finding himself when he held at pages 93 & 94 of the records thus:

€œIn this case, it is manifestly clear from the affidavit evidence of the applicant and the 1st-2nd Respondents that the issue in this case is one of non-payment of rents i.e. Landlord and Tenant matter.€

Counsel argued that the Court having made the above finding, it ought to have declined jurisdiction to hear the suit. He cited the case of IGWE vs. EZE-ANOCHIE (2010) 7 NWLR (PT. 1192) 61 Ratio 9.

In assuming but without conceding that the application is properly constituted as one for the enforcement of Fundamental Rights, Counsel queried whether it can be said that the Appellants breached the Fundamental Rights of the 1st Respondent? While the question was answered in the negative, he submitted that in an application for the enforcement of Fundamental Rights, the onus lies first on the applicant to show the Court how his rights were breached by the Respondent and that it is only when this onus has been discharged that the burden shifts to the arresting authority to justify the legality of their action. Counsel said that the onus is discharged by presenting before the Court clear, cogent and vital evidence through the affidavit filed in support. See FAJEMIROKUN vs. C.B. CREDIT LYONNAIS (2002) 16 NWLR (PT. 774) 95 @ 112-113.

Counsel further said that in support of his application, the 1st Respondent filed an affidavit of 30 paragraphs and a further affidavit of yet another 30 paragraphs seen at pages 7 to 14 and 59 to 64 of the records respectively. It was submitted by Counsel that as can be gleaned from the facts deposed to by the 1st Respondent, it was he, who caused his own arrest by the police; that from his evidence when the police arrived at the Appellants€™ premises they did not seek to arrest him but merely asked that he speaks with their D.P.O. possibly so that he and their D.P.O. may work out something agreeable to both parties but that the 1st Respondent turned down the friendly gestures. See paragraph 17 and 18 at page 10 of the records. According to Counsel the initial posture by the police, was a mark of respect for the 1st Respondent, but that he turned down the gesture and by himself instigated the wrath of the police against himself leading to his arrest.

Against this backdrop, Counsel submitted that the Appellants merely made a report to the police due to the threat of violence made by the 1st Respondent who threatened before the Appellants€™ 10 years old daughter, that he would use thugs to deal with them. Learned Counsel said that it is in evidence that this threat caused the Appellants€™ children to refuse to go to school for one week. He referred Court to Exhibit A seen at page 45 of the records which shows that the children were absent from school for one week.

It was argued by Counsel that the Appellants as citizens of this Country have inalienable rights to lodge a complaint to the police when their safety is threatened, as in the circumstance of this case and cannot be liable to the 1st Respondent. See the case of IGALI vs. LAWSON (2005) ALL FWLR (PT. 262) @ 580 PARA C €“ E where the Court held thus:

€œIt is the inalienable right of a citizen to lodge complaint or pass information to the police, the law enforcement agents, in so doing the individual must do so in good faith. The mere fact that a citizen has given information to the police upon which the police in their good wisdom decide to arrest or prosecute the person upon which the information is hinged does not without more make the informant liable for the act of police.€

See also ONAH vs. OKENWA (SUPRA) @ PG 518 RATIO 7, where the court held thus:

€œThe question whether a party instigated the police against his adversary has to be established by evidence. To claim instigation requires evidence as to facts to support the allegation that the complaint was not made in good faith or that it is a fabricated story which caused the police to arrest and detain. In the instant case, although the Appellant was the complainant to the police, and it was on his complaint that the police acted by commencing their investigation of keeping the Respondents in the station for a few hours, there is no credible affidavit in support of the claim on instigation. In this case, the Appellant exercised his legal right seeking the intervention of the police.€

See also OHANU vs. COP (2001) I CHR 407, EJEFOR vs. OKEKE (2000) & NWLR (PT. 665) 3633 @ 381 PARAS A €“ B.

In the instant case, learned Counsel argued that the complaint of the Appellants to the police was not frivolous or mala fide and that from the evidence of the parties, it is obvious that the Appellants were actually apprehensive because of the threats by the 1st Respondent passed through their daughter. To establish this, Counsel referred Court to paragraph 15 of the 1st Respondent deposition where he stated inter alia in his supporting affidavit thus:

€œ€¦the 6th Respondent gave the 1st Respondent 6 policemen that night to take her home and enable them know where she is living. I was informed by the night security man in Nesochi Estate and I verily believe him.€

Learned Counsel said that the above evidence lays credence to the fact that the Appellants were quite apprehensive over the threats by the 1st Respondent and that the six policemen could not have been given to the 1st Appellant merely to find out where she lives as only one or two policemen would have been enough but it is because of the vehemence of the threat that such number of policemen could have been given to the 1st Appellant.

Counsel further said that the Appellants€™ complaint not being one that was frivolous the Court ought not to have damnified them in damages. It was argued that the Appellants cannot be held liable for the act of the police in this circumstance since the evidence of the 1st Respondent shows that all his complaint revolves around the police. Counsel further argued that the only connection which the Appellants have in connection with this matter is that they made a report which in the circumstance of this case is not frivolous or malicious.

Counsel referred to the learned trial judge€™s reasoning in finding the Appellants liable at page 90 of the records where Court stated that the deposition of the Appellants are vague in that they merely stated that the 1st Respondent threatened them with thugs and the statement was made to their 10 year old daughter in their absence; that the 1st Respondent denied this and the Appellants never proffered any particulars of the said threat and the nature of the threat as made to their daughter. It was the contention of Counsel that this position of the Court was misconceived because a threat to use thugs to deal with the Appellants is simply what it is as there are no further particulars to be given; this is not being a defamation case that requires the Plaintiff to state the exact words used by the Defendant or the innuendo from the words. On the 1st Respondent€™s denial about seeing the Appellants 10 year old daughter, Counsel said that the 1st Respondent was said to have given the impression that he only visited the house of the Appellants on the day he was arrested and that it was in his Further Affidavit that the 1st Respondent admitted going to the house earlier and that when he went to the Appellants€™ house earlier he met only the daughter and did not see the other sons who absented from school because of his threat. See paragraph 15 of his affidavit at page 62 of the records.

This confirms the story of the Appellants that the 1st Respondent did come to their house and threatened their daughter. Counsel contended that it is enough that it established that the 1st Respondent did visit the Appellants before the day of his arrest, since it is not expected that 1st Respondent would admit that he threatened the little girl he saw. It was submitted that the Appellants presented a more plausible story than that of the 1st Respondent more so when in paragraph 14 of his affidavit seen at page 9 of the records he admitted that he was angered by the payment of only N300,000.00 into his account by the Appellants. Counsel suggested that it was that same anger that led to the 1st Respondent€™s threats to the Appellants€™ daughter, and also made him refused to speak to the D.P.O. who called to have a chat with him and that he was still so angry even at the point of writing his affidavits that he used abusive language all through.

Learned Counsel submitted that the disposition of the 1st Respondent at the time and the fact that he could have unleashed the said threats and did unleash the threats which got the Appellants apprehensive has to be taken into consideration in this time and age of rampant kidnap cases and other violent crimes in the society. Counsel contended that no citizen€™s freedom or liberty is absolute as a citizen€™s liberty may be impaired temporarily in order to prevent him from committing an offence or if there is reasonable suspicious that he committed an offence. He referred this Court to Section 35(1)(c) of the Constitution of the Federal Republic of Nigeria, 1999 as amended also the following cases; EKWUNUGBO vs. FRN (2001) 6 NWLR (PT. 708) 171 @ 185 Ratio 14 @ 177; DOKUBO ASARI vs. FRN (2001) 12 NWLR (PT. 1048) @ 323 & 333 Ratio 8; A.G. ANAMBRA vs. UBA (2005) 15 NWLR (PT. 974) 44 @ 66-67.

Learned Counsel also referred Court to the fact that the trial Court took cognizance of only one limitation to the right of liberty i.e. €œupon reasonable suspicion of his having committed an offence€ and found that there was no reasonable suspicion because particulars of the threat were not supplied and contended that the Court failed to take into consideration the other limitation to the right of liberty which is; €œto such extent as may be reasonably necessary to prevent his committing a criminal offence.€ Counsel said that the circumstance of this case is such that it was reasonably necessary to prevent the 1st Respondent from committing a crime to wit, carrying out his threat to use thugs against the Appellants as the 1st Respondent had earlier visited the house of the Appellants and threatened before their daughter to use thugs to deal with them. Counsel said that the 1st Respondent was asked by the 2nd Appellant and man of the house not to come on the day of the incident because he would not be around but the 1st Respondent still came as early as 6:30 am in boxer shorts apparently combat ready and in company of three (3) unknown persons, pounding on the door of the Appellants; that the police arrival and solicitation for him to speak with the DPO and his blunt refusal all only pointed to one irresistible inference; the fact that the 1st Respondent was poised to carry out his threat. At that stage Counsel argued that it was reasonably necessary for the police to have arrested the 1st Respondent to prevent his committing a crime which is one of the duties of the Police under Section 4 of the Police Act and that it therefore does not amount to the infringement of fundamental rights of an applicant where he feels that he spent time at the police station without more before he was allowed to go. Counsel urged the Court to resolve issue three in favour of the Appellants.

ISSUE FOUR;

Whether the damages awarded by the trial Court in favour of the 1st Respondent is not excessive in the circumstance.

It was the submission of Counsel that the learned trial judge€™s award of damages jointly and severally against the Appellants and the 2nd to 7th Respondents is unwarranted and borne out of misconception of the facts of the case, disregard of principles of law and mistake of the law. He said that the learned trial judge also took into consideration irrelevant matters and discountenanced relevant matters. For instance, Counsel referred Court to page 93 of the Records, where the trial judge held thus:

€œIt is trite that a person who merely makes a report to the police without more and the police on their our initiative takes the person into custody, cannot be held liable in damages for any breach of the Fundamental Right of a person occasioned by the said Act of taking the person into custody by the police. However, where such report is malicious he will be liable.€

But that in deciding that the report made to the police by the Appellants was malicious the Court at pages 93 to 94 of the records found thus:

€œIn this case, it is manifestly clear from the affidavit evidence of the applicant and the 1st €“ 2nd Respondents that the issue in this case is one of non-payment of rents i.e. Landlord and Tenant matter.€

€œIt bothers on the non-payment of the outstanding balance of house rent by the 1st €“ 2nd Respondents to the applicant who is their Landlord. Thus it is purely civil. There is no proof of any criminality between them or in the course of the demand for house rent by the applicant.€

Arising from the foregoing learned Counsel argued that the Court having found as he did that the issue in this case is one of non-payment of rents i.e. a Landlord and tenant matter (using his own words) he ought not to have gone further in entertaining the suit as one for the enforcement of fundamental rights; that he ought to have struck it out and the issue of award of damages ought not to have arisen in the first place. He also contended that the award of damages made by the learned trial Judge was in disregard of relevant principles of law/mistake of law for the Court to have given judgment for the Respondents. It was further contended that the learned trial judge took into consideration irrelevant matters in reaching its decision for instance, that the learned trial Judge reproduced paragraph 12 of the Appellants€™ Counter Affidavit at page 94 of the records which weighed on his mind, but failed to take into consideration paragraphs 10, 11, 13 and 14 of the Appellants€™ Counter Affidavit seen at page 42 of the records and paragraph 17 of the 1st Respondents Further Affidavit.

At Paragraph 10 of the Counter Affidavit, the Appellants deposed to the fact that the Respondents visited the Appellants earlier in their absence and met their 10 year old daughter whom he threatened before that he would use thugs to deal with the Appellants; that the 1st Respondent admitted this in paragraph 17 of his Further Affidavit that he did go to the Appellants€™ house earlier and met their daughter but did not see the two sons said to have refused to go to school as a result of 1st Respondent€™s threat. Counsel said that the Court did not take cognizance of this fact and the fact that having skipped this fact in his main affidavit 1st Respondent must have been lying about not having threatened the Appellants. Counsel argued that the Court misconceived the facts thinking that the 1st Respondent only visited Appellants once i.e. the day of the incident giving rise to this suit took place; that if the learned trial judge had appreciated the facts of the early visit the reason why the 2nd Appellant insisted that the 1st Respondent suspends his 2nd visit until Saturday would have been better appreciated by the Court. Counsel further said that the Court also failed to take into cognizance paragraph 13 of the Appellants€™ Counter Affidavit where they deposed that 1st Respondent admitted coming at least with one other person whom he said is his younger brother. Counsel brought to Court€™s attention the fact that the other three persons who accompanied the 1st Respondent on the fateful day flee the scene upon the arrival of the police but queried why the 1st Respondent did not explain what happened to his said younger brother when the police came calling. It is based on the allegedly above shown mistakes of law, disregard of principles of law, misconception of the facts, consideration of irrelevant matters and non consideration of relevant matters that Counsel submitted made the lower trial Court into awarding damages against the Appellants who merely made a report to the police in the protection of their rights. He cited the case of ESIKA vs. MEDOLU (1997) 2 NWLR (PT. 485) 54 @ 48, where the Court held as follows:

€œThe general principles is that an award of general damages is a matter for the trial judge and that normally an Appellate Court will not interfere with such award, unless;

a. Where the trial judge had acted under a mistake of the law.

b. Where he has acted in disregard of principles;

c. Where he has acted under a misconception of facts;

d. Where he has taken into account irrelevant matters or failed to take account of relevant matters or;

e. Where injustice would result if the Appeal Court does not interfere.

An Appellate Court will only interfere with an award of damages made by a trial judge where the circumstances calling for its interference are shown.€

Arising from the foregoing, Counsel submitted that the award of damages by the Lower Court is caught by the web of all the factors which an Appellate Court would consider in setting aside an award of damages by a trial Court. Apart from this, Counsel further submitted that the award of damages was rather excessive given the circumstances of the case and that what the Court awarded amounts to exemplary damages. He contended that there are principles guiding award of exemplary damages as enunciated in the case of ALELE-WILLIAMS vs. SAGAY (1995) 5 NWLR (PT. 396) 441 @ 443-444 where the Court held thus:

€œExemplary damages are damages which are in the nature of awards made with a possible secondary object of punishing the Defendant for his conduct in inflicting harm on the Plaintiff€¦

Exemplary damages should be awarded only in the following cases viz:

a. In the case of oppressive, arbitrary or unconstitutional acts by government servants.

b. Where the Defendant€™s conduct had been calculated by him to make a profit for himself which might well exceed the compensation payable to Plaintiff.

c. Where expressly authorized by statute€¦€

Counsel urged the Court to resolve issue four in favour of the Appellants.

ARGUMENTS BY LEARNED 1st RESPONDENT€™S COUNSEL;

ISSUE ONE;

On the issue of the territorial jurisdiction of Court Counsel submitted that the Appellants€™ arguments are misconceived and misleading and referred Court to the express provisions Sections 270 & 272 of the Constitution of the Federal Republic of Nigeria, 1999on the general jurisdiction of the High Court system and also to Section 46 (1) (2) of the Constitution 1999 on the special jurisdiction of the High Court conferring jurisdiction on the Court to entertain Applications seeking redress for breaches hinging on the Fundamental Human Rights of aggrieved parties. Counsel argued that a community and/or carefully reading of these Constitutional provisions points to one irrefutable conclusion, that is: there is only ONE/SINGLE High Court in any State of the Federal Republic of Nigeria.

In defining the €œterritorial boundaries€ of each State of the Federation, Counsel referred Court to Section 3 of the Constitution, particularly subsection 2 thereof, which provides that; €œeach State of Nigeria named in the first column of Part 1 of the First Schedule to this Constitution shall consist of the area shown opposite thereto in the second column of that schedule€. He said that a cursory glance at the second column of the first Schedule thereto shows clearly that €œOguta€ nay €œMgbidi€ falls within the territorial boundaries and/or €œterritorial jurisdiction€ of Imo State. It was also contended by Counsel that under section 46 of the Constitution and Order 11 Rule 1 of the Fundamental Rights Enforcement Procedure Rules, 2009 every victim of human rights violations is empowered to seek redress in a High Court located in that State of the Federation where their fundamental right has been, is been or is likely to be contravened. According to Counsel this provision is lucid, arguing in the process that where the words of a Statute are clear and unambiguous, it must be given its literal meaning. He cited the case of OBI vs. INEC (2007) ALL FWLR (PT. 378) 1116 AT 1171-1172, paras H €“ A.

On the question of the Applicants seeking redress before the Court in the Judicial Division where the alleged breach occurred, Counsel submitted that this argument is unfounded in law as the aim of section 46 (1) is to provide a simple and effective judicial process for the enforcement of fundamental rights; that in other words, it is immaterial and of no consequence in law whether the application, subject matter of this appeal, was heard and determined at the €œOguta Judicial Division holden at Mgbidi€ or at the €œOwerri Judicial Division holden at Owerri.€ He said that the important factor is that the matter/suit was tried by a High Court within the territorial jurisdiction of Imo State. Counsel commended the decision of the case of OBASI BROS. (NIG.) LTD vs. WILLBROS (NIG.) LTD (1991) 3 NWLR (PT. 181) 606 AT 611, PARAS C €“ D, to this Court wherein it was held thus:

€œ€¦It is quite clear that unless an action is shown to be within the territorial jurisdiction of another state, an action commenced in a Judicial Division other than the Judicial Division where it ought properly to have been commenced but within the area of the territorial jurisdiction of the state High Court shall not be defeated or dismissed by reason only of the fact that the action was commenced in the wrong Judicial Division.€

Learned Counsel further argued that the authorities of ARJAY LTD vs. AIRLINE MAGT. SUPPORT LTD (2000) 8 NWLR (PT. 670) 636 AT 638; EMELUMBA vs. ONUIGWE (2011) 13 NWLR (PT. 1265) 449 AT 461; and THEOBROS AUTOLUIK LTD vs. B.I.A.E. CO. LTD (2013) 2 NWLR (PT. 1338) 337 cited by the Appellants in support of their arguments are inapplicable and irrelevant to this instant appeal. He said that in EMELUMBA€™S case, the cause of action originated in Imo State, litigated upon in Imo State and subsequently decided on appeal. But surprisingly, the same matter that was settled by the Court of Appeal, Port Harcourt Division, was re-initiated at the Federal High Court, Katsina State. This Counsel further argued obviously amounted to the Federal High Court sitting on appeal over the judgment of a superior Court (i.e. the Court of Appeal). Moreover, that the said action was instituted in far away Katsina State of the Northern Part of the Nigeria. Counsel next assumed but did not concede that in the event that this instant case is initiated and/or determined in the wrong judicial division, Counsel argued that neither the Constitution nor the FREP Rules made any provision express or implied as to the proper venue or Judicial Division of any State High Court seised with the powers to entertain a fundamental rights application. In other words Counsel argued that the Constitution and FREP Rules are silent on the issue of the proper venue for the institution of a fundamental rights application. He further argued that since the FREP Rules are silent on the issue of the proper Judicial Division, recourse should be had to the Rules of the High Court of Imo State.

In this connection, Counsel referred Court to Order 15 Rule 4 of the FREP Rules and also contended that the extant Imo State High Court (Civil Procedure) Rules, 2008 provides thus: €œif any suit is commenced in the wrong Judicial Division, it may be tried in that Division unless the Chief Judge otherwise directs€™ €“ Order 2 Rule 5 thereof. He also argued that in the event that this suit has been commenced in the wrong division, that the purport of Order 2 Rule 5 is that the trial Court can rightly adjudicate on the matter unless otherwise directed by the Chief Judge of the State. It was also contended by Counsel that the position of the law is that a party challenging the jurisdiction of Court based on venue of trial must do so timeously. He cited the case of OGIGIE vs. OBIYAN (1997) 10 NWLR (PT. 524) 179 at 190 €“ 191, para G €“ A, the Supreme Court had this to say on the issue:

€œA Defendant seeking to challenge the jurisdiction of the Court based on venue of trial of suit€¦ must do so at a specified time. That is either at the time when he is required to state his answer or to plead in such case. Time is therefore prescribed and is of the essence if the Defendant proposes to challenge the venue where the case was instituted€¦€

On the strength of the above Counsel submitted that the Appellants cannot now raise the issue of €˜wrong venue€™ for the first time on appeal and that it would be too late in the day for them to do that since the rules require the objection to be raised in the pleadings at the time of filing the Appellants Counter Affidavit and written address therewith so that the trial Court and the 1st Respondent may be spared the inconvenience and waste of time €“ OGIGE vs. OBIYAN (supra) at 191 Paras A €“ C. Counsel urged the Court to resolve this issue in favour of the 1st Respondent and accordingly, hold that the trial Court rightly and properly assumed jurisdiction to hear this suit.

ISSUE TWO;

On the question of the Lower Court discountenancing the Further Counter Affidavit filed by the Appellants in this case, Counsel contended that the issue is distilled from Ground two (2) of the Grounds of Appeal and noted that none of the grounds of appeal covers the issue of the propriety or otherwise of the learned trial Court raising suo motu the issue of the impropriety of the Further Counter Affidavit filed by the Appellants without the leave of Court. Counsel further contended the Appellants arguments on the issue cannot therefore be considered by this Court. He said that it is improper for the Appellants to raise it or proffer any argument on same without an appeal on the point. Accordingly, he urged this Court to discountenance arguments proffered on the issue of the Lower Court raising the issue of none seeking the Court€™s leave suo motu. Counsel cited the case of OKELOLA vs. BOYLE (1998) 2 NWLR (PT. 539) 533 AT 546, PARAS B €“ D, where the Supreme Court per OGUNDARE, JSC (as he then was) had this to say:

€œAn appeal will only be determined on issues arising out of the grounds of appeal before the Court and no arguments on any issue not predicated on such grounds of appeal will be countenanced.€

Counsel argued that what Appellants could not achieve by formulating as a fifth issue, the purported issue of the trial Court raising suo motu an issue which the Court decided, is what the Appellants have sought to do by shrewdly sneaking/smuggling same in under the guise of arguing issue two herein. It was further argued by Counsel that parties cannot formulate issues for determination in excess of the grounds of appeal filed and that in the same vein parties cannot formulate more than one issue in respect of each ground of appeal. He cited the case of OGUNBIYI vs. ISHOLA (1996) 6 NWLR (PT. 452) 12 AT 20, PARAS A €“ B and urged this Court to hold that the entire arguments proffered on the issue of the trial Court raising an issue suo motu is liable to be struck out for being incompetent and baseless in law. He also cited the cases of ODIFE vs. ANIEMEKA (1992) 7 NWLR (NWLR) (PT. 251) 25 AT 42, PARAS A €“ B; BAKULE vs. TANARERWA LTD (1995) 2 NWLR (PT. 380) 728; OKUDO vs. IGP (1998) 1 NWLR (PT. 533) 335.

On the validity or otherwise of the lower trial Court discountenancing the Further Counter Affidavit filed by the Appellants learned Counsel referred this Court to Order 11 Rules 6 and 7 of the FREP Rules which provides as follows;

€œ6. Where the Respondent intents to oppose the application he shall file his written address within 5 days of the service on him of such application and may accompany it with a counter affidavit.

7. The Appellant may on being served with the Respondent€™s written address, file and serve an address on point of law within 5 day of being served and may accompany it with a further affidavit.€

From the foregoing, learned Counsel contended that the provisions conferred no rights on the Appellants to file a Further Counter Affidavit assuming there was a need for them to so do. Counsel submitted that such a process filed without the leave of the learned trial Court is incompetent and liable to be struck out and which was the Court did. Counsel told Court that the import of Order VI Rule 2 of the FREP Rules has to do with where any of the parties raise fresh issues is its affidavit and the other party may be allowed by the Court to use a Further Affidavit or Further Counter Affidavit filed in reaction to the new matters. It was therefore contended by Counsel that learned Appellants Counsel€™s submission on the point is grossly misconceived and misleading. Counsel further argued that the provision of Order VI Rule 2 of the FREP Rules cannot be activated except with the leave of Court, the operative word being €˜may€™ which connotes the exercise of the Court€™s discretion. In addition, Counsel said that the provision of Order VI Rule 2 applies only where fresh issues are raised. And that this was not the position in the instant case as the 1st Respondent€™s Further Affidavit dated and filed on 09/01/2013 does not raise any fresh matter/new issues. Counsel submitted that the filing of the said €˜Further Counter Affidavit€™ was unwarranted and needless and cannot be said to be in reaction or response to the imaginary fresh matters purportedly raised by the 1st Respondent.

In assuming but without conceding that fresh issues were raised as alleged, Counsel queried whether the Appellant could file a Further Counter Affidavit without the leave of the trial Court? He answered with an emphatic No! Moreover, he said that the provision of Order VI Rule 2 is applicable only in situations of amendment of the statement/application. But that in the instant case, no such amendments was sought by any of the parties to have warranted the filing of the Appellants€™ Further Counter Affidavit. Furthermore, he said that Order VI rule 2 cannot be read in isolation of other relevant provisions of the FREP Rules, in order to discover the meaning of the provisions, especially, Order 11 (two) Rules 6 and 7 thereof. Counsel cited the case of AMAECHI vs. INEC (2008) ALL FWLR (PT. 407) 1 AT 95 PARAS E €“ F. Contrary to the submissions of the learned Appellant€™s Counsel, it was also contended that the Rules of Court are meant to be strictly obeyed in the interest of fair administration of justice. He cited the case of 7-UP BOTTLING CO. LTD vs. ABIOLA & SONS LTD (1995) 3 NWLR (PT. 383) 257 AT 284 PARAS F €“ G; See also, ONIFADE vs. OLAYIWOLA (1999) 7 NWLR (PT. 161) 130.

On the arguments of Appellants€™ Counsel when he said that the FREP Rules is a subsidiary legislation which cannot override or contradict the provisions of the Constitution, particularly Section 36 on the issue of fair hearing, Counsel deferred vehemently with this reasoning. He said that Order II Rules 6 and 7 of the FREP Rules cannot be said to run contrary to the doctrine of fair hearing as enshrined in our Constitution. Rather, he said that the provisions of the said FREP Rules were designed to promote the rules of fair hearing and that there is nothing unconstitutional in the said Rules. Counsel contended that where therefore the Appellants have failed to do what was expected of them under the Rules by applying for leave to file their Further Counter Affidavit or to amend their process they cannot now be heard to complain in appropriately. Learned Counsel argued that the provisions of section 36 of the Constitution cannot operate in vacuum as it must operate within the confines and parameters of the law; otherwise, there will be chaos, disorderliness and inefficiency in its enforcement. He further argued that the drafters of the Constitution were mindful of this when at section 46(3) thereto, the Chief Justice of Nigeria was empowered to make rules with respect to the practice and procedure of a High Court for the purpose of enforcement of the rights guaranteed under Chapter Four of the Constitution. Counsel said that the FREP Rules has Constitutional backing and force of law and must be strictly obeyed. He cited the case of OLOWOKERE vs. AFRICAN NEWSPAPER (1993) 5 NWLR (PT. 295) 583 AT 600.

Finally on this issue Counsel urged this Court to resolve same in favour of the 1st Respondent.

ISSUE THREE;

According to learned Counsel, the issue here is whether the Appellants breached any of the fundamental rights of the 1st Respondent. From the facts that cannot be disputed in this case, learned Counsel submitted that the 1st Respondent has effectively demonstrated the infringement of his fundamental right to personal liberty and freedom of movement guaranteed under Sections 35 and 41 of the Constitution. Learned Counsel also drew attention of Court to the fact that the 2nd €“ 7th Respondents neither filed any processes in opposition nor put up appearances in Court; the legal consequence of which is that by their failure, they are deemed to have admitted as true, all the facts deposed to in the founding and Further Affidavits of the 1st Respondent since the facts are unchallenged and uncontroverted. The short, simple and unequivocal conclusion or answer, Counsel said that the fundamental rights of the 1st Respondent as enshrined in section 34, 35 and 41 of the Constitution were grossly violated by the 2nd €“ 7th Respondents at the instigation of the Appellants on 07-12-2012, on the mere and unsubstantiated allegation and/or suspicion of €˜threat of thugs€™.

It was argued by Counsel that for an arrest to be Constitutional and therefore lawful, it must be in line with section 35 (1) of the Constitution and section 10 of the CPA. According to learned Counsel these provisions of the law postulates that there must be a reasonable suspicion of the commission of an offence or crime. He further argued that the rights to personal liberty, freedom of movement and dignity of the human person are guaranteed to every citizen but that the only limitations to these rights are as contained in paragraphs G €“ F of the said sub-section, the relevant paragraph of which is subsection (c) which provides as follows:

€œ€¦for the purpose of bringing him before a Court in execution of order of Court or on reasonable suspicion of having committed a criminal offence or to such extent as may be reasonably necessary to prevent his committing a criminal offence€¦€

Counsel further contended that Article VI of the African Charter on Human and Peoples Rights and the African Declaration on Human Rights Article 111 and IX, respectively, are ad-idem with the Constitutional provision on right to liberty and it exceptions. Arising from this position, Counsel argued that the actions of the 2nd €“ 7th Respondents at the behest of the Appellants are at its best a most barbaric way and manner of covering up an obligation. He further argued that because the Appellants knew that the 1st Respondent was coming to see them that morning and having dropped off their cheque of Three Hundred Thousand Naira (N300,000.00), the 1st Appellant who works with Diamond Bank on the eve of 6th day of December, 2012 organized a clandestine police gang to avoid paying their debt to the 1st Respondent. Worst of it all Counsel said that the police who came on this duty were from Fire Service Police Station while the cause of action took place within the area covered by the Owerri North Divisional Police Headquarters, Orie Uratta. He contended that the entire process of arrest and detention of 1st Respondent was premeditated and unlawful. It was contended by Counsel that the need for the Police charged with the responsibilities for crime detection and prosecution to be careful in performing their constitutional and statutory duties cannot be over emphasized. He said that where as in the instant case, they fail to exercise caution, or circumspection in arresting and detaining Nigeria Citizens (as happened to the 1st Respondent); where friendly scores/squabbles are settled by unfounded allegations or accusations against perceived foes, both the Complainants and the Police Shall be held liable for any breach or contravention of the law and Constitutional provisions concerning the rights of the suspects. Counsel cited the case of NIGERIAN ARAB BANK LTD vs. COMEX LTD (1999) 6 NWLR (PT. 608) 648 AT 672; FAWEHINMI vs. IGP & ORS (2002) 7 NWLR (PT. 767) 606 RATIO 17 AT 651.

The Appellants having set in motion the machinery of arrest and detention of the 1st Respondent by the 2nd -7th Respondents and having chosen a ministerial action as opposed to judicial action to seek legal redress are liable for any violation of the citizen€™s rights to the dignity of his human person, freedom of movement and liberty from arrest and detention. Counsel cited the case of OKOROAFOR NKPA vs. NKUME (2002) 6 NWLR (PT. 710) 543 RATIOS 6, 7 AND 8 AT 548; AKILU vs. FAWEHINMI (NO. 2) (1989) 2 NWLR (PT. 102) 122 RATIO 74 AT 148-149; ISENALUMNE vs. AMDIM (2001) 1 CHR 485. Counsel urged the Court to this issue in favour of the 1st Respondent.

ISSUE FOUR:

On the question of the award of damages in this case, Counsel told Court that one of the reliefs sought by the 1st Respondent in this case is an order compelling the Appellants and the 2nd €“ 7th Respondents jointly and severally to pay the sum of Fifty-Million Naira (N50,000,000.00) only being compensations for the inexcusable/unjustifiable violations of the 1st Respondent€™s right as duly guaranteed by the Constitution of Nigeria, 1999. He said that the trial Court having found that indeed, the acts of the Appellants and 2nd €“ 7th Respondents constituted an infraction on the Constitutionally guaranteed rights of the 1st Respondent, went ahead and awarded a paltry sum of Three-Million Naira (N3,000,000.00) only as compensation; and cost of Fifty-Thousand Naira (N50,000.00) only, jointly and severally against the Appellants and the 2nd €“ 7th Respondents.

It was submitted by Counsel that the compensation sought by the 1st Respondent can otherwise be classified as €˜general damages€™. Learned Counsel argued that the award of damages is a matter purely within the precinct of trial Courts and therefore that the Appeal Court does not normally disturb or interfere with such award except where:

a. A trial Court acted under a mistake of law; or,

b. A trial Court has taken into account irrelevant matters or failed to consider relevant matters; or

c. It acted under misapprehension of facts; or,

d. A trial Court has taken into account irrelevant matters or failed to consider relevant matters; or,

e. Injustice would result if the Appeal Court does not interfere; or

f. The amount awarded is either ridiculously so low or ridiculously high that it must have been a wholly erroneous estimate of the damages. Counsel cited the case of JUBRIN GARBA & ANOR vs. TIMOTHY KUR (2003) 11 NWLR (PT. 831) 280 ratio 1, 6, 7 and 8 at 284-286.

It was the submissions of Counsel that the Appellants Counsel€™s arguments on this issue are grossly misconceived and that the learned trial Court did not take into account irrelevant matters, neither did it fail to consider relevant matters in its appraisal of the quantum of damages as awarded. Counsel further said that in taking together all the available evidence, facts and the law on the award of general damages to an aggrieved party in an action for the violation of the fundamental rights of the 1st Respondent by the 2nd €“ 7th Respondent and at the behest of the Appellants the sum awarded the 1st Respondent cannot in the circumstance said to be excessive. He urged the Court to resolve this issue in favour of 1st Respondent.

RESOLUTION OF APPEAL

The issue of the jurisdiction of the Lower Court took center stage early in the arguments of learned Counsel to the parties. The issue of jurisdiction, whether predicated on the appropriateness of venue of Court or not, is fundamental to the success of any action in Court. Where a Court proceeds without jurisdiction its efforts would amount to an exercise in futility no matter how well the proceedings are conducted. It is also trite that the question of jurisdiction can be raised at anytime even for the first time on Appeal. See UKWU vs. BUNGE (1997) 8 NWLR (PT. 518) 527; LERIC NIG. LTD vs. UBN PLC (2000) 15 NWLR (PT. 691) 447; ATTN-GEN LAGOS STATE vs. DOSUNMU (1989) 3 NWLR (PT.111) 552; NNONYE vs. ANYICHIE (2005) 2 NWLR (PT. 910) 623. Territorial jurisdiction of a trial Court is relevant for the validity of any proceedings before a Court. See WUYEP vs. WUYEP (1997) 10 NWLR (PT.523)154. In considering whether a Court has jurisdiction to entertain a matter, the Court is guided by the claim before it, by critically looking at the originating processes. See GAFAR vs. GOVT. OF KWARA STATE (2007) 4 NWLR (PT.1024) PG. 375; ONUORAH vs. K. R. P. C. (2005) 6 NWLR (PT.921) 393; TUKUR vs. GOVT. OF GONGOLA STATE (1989) 4 NWLR (PT.117) 517. Appellants Counsel had contended that with the parties all residing in Owerri the subject matter of the suit cannot be said to reside outside the Owerri Judicial Division, let alone the far flung Mgbidi Judicial Division.

On his part, learned Respondents€™ Counsel stuck to his view that the aim of Section 46 (1) of the 1999 Constitution is to provide very simple effective judicial mechanism for the enforcement of fundamental rights and that it is immaterial and of no consequence in law whether the application was heard and determined at the €œOguta Judicial Division holden at Mgbidi€ or at the €œOwerri Judicial Division holden at Owerri.€ He said that what matter most is that the matter was tried by a High Court within the territorial jurisdiction of Imo State. To be sure, Section 46 (1) of the 1999 Constitution of Nigeria provides as follows;

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. (Under line, mine for emphasis).

The key, perhaps, towards resolving this issue may be found in the definition of the phrase; €œHigh Court of a State€. In the case of TUKUR vs. GOVT. OF GONGOLA STATE (Supra), the Supreme Court per OPUTA, JSC had the following to say;

From the above facts, even before considering the claim or relief sought which normally should determine jurisdiction, one initial question suggests itself – Why go to Kano State to sue for a cause of action which arose in Gongola State? It is here that one may have to look rather closely at section 42(1) of the 1979 Constitution which invested “the High Court” with “special jurisdiction” to deal with breaches of the Fundamental Rights provisions of Chapter IV of the 1979 Constitution. That section provides:-

€œAny 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.€

In this case, Alhaji Umaru Abba Tukur is complaining that there has been a breach of one or other of his fundamental rights to his liberty or to his freedom of movement. The contravention alleged took place in Gongola State. From section 42(1) above, he has to apply “to a High Court in that State”, that is, the High Court where the contravention or breach occurred. The Federal High Court Kano cannot be “a High Court in that State” which was envisaged by Section 42(1) above. Even if the jurisdiction of the Kano Judicial Division of the Federal High Court extends to and includes Gongola State, the Kano Federal High Court cannot, without undue violence to the plain meaning of words, be described as “a High Court in that State” namely a High Court in Gongola State. It is therefore my view that by choosing a Court outside the territorial boundaries of Gongola State where his fundamental rights were breached, the appellant in this case did not “apply to a High Court in that State” as required by Section 42(1) of the 1979 Constitution.

What the Rules simply make provisions for is that an application to secure the enforcement of the human rights of any person must be filed in the €œHigh Court of a State€ where the infringement took place. See MILITARY ADMINSTRATOR, BENUE STATE vs. ABAYILO (2001) FWLR (PT. 45) 602. The Rules as rightly observed by learned Respondent€™s Counsel is completely silent on the question of Judicial Divisions within a State. And in any case a distinction has to be made jurisdiction as it relates to the territorial jurisdiction of a Court and jurisdiction in relation to the judicial Divisions within to commence an action. The distinction between venues as an aspect of jurisdiction in which a suit may be heard is often provided in the Rules of Courts of the various States of the Federation. But when it comes to the question of territorial jurisdiction, this involves whether a suit ought to have been brought in one State or another. See the decision of this Court in INTERNATIONAL NIGERBUILD CONSTRUCTION CO. LTD vs. GIWA (2003) 13 NWLR (PT. 836) 69.

It is on account of this position that I fault the submissions of learned Counsel for the Appellant who sought the imposition and the application of the Rules of Court of the High Court of Imo State which has delineated the State High Court into Judicial Divisions. What Counsel should perhaps, understand is that the Fundamental Rights (Enforcement Procedure) Rules are peculiar set of Rules restricted to the enforcement of the rights of persons under Chapter four of the Nigerian Constitution, 1999. The Rules have made no provisions for the recognition of or the division of the High Court of a State into Judicial Divisions. Indeed the Rules have made no provisions for the importation of any other Rules of Court for the enforcement of such rights. It is therefore clearly wrong for the Court to fall back to the High Court Rules and purports to be guided by it in the enforcement of the rights of parties. See the case of CHUKWUOGOR vs. CHUKWUOGOR (2007) ALL FWLR (PT. 349) 1154. To therefore ask that the demarcation of the of the High Court Imo State be brought to bear in this case, the way learned Counsel for the Appellant had done is to seek to import the application of the Rules of the High Court of Imo State in a situation that ordinarily aver the contrary. To this end this issue is resolved against the Appellant.

On the question of the Lower Court discountenancing the Further Counter Affidavit filed by the Appellants in this case, two issues were embedded in the submissions of learned Appellant€™s Counsel. The one was that the learned trial Court raised suo motu the issue of the impropriety of filing a Further Counter Affidavit without first obtaining the leave of Court, and the other dealt simpliciter with the propriety of the Lower Court striking out Appellants Further Counter Affidavit. on the question of the Lower Court raising the issue of the impropriety of filing a Further Counter Affidavit, suo motu, the settled position of the law is that although the Court has the duty to give the parties the opportunity to be heard on any issue it raises suo motu, a failure to do in appropriate circumstances would not necessarily lead to the reversal of the Lower Court€™s decision. To warrant an Appellate Court€™s reversal of the decision, the Appellant must go further to show that the failure to hear him on the point occasioned some miscarriage of justice. See IMAH vs. OKOGBE (1993) 9 NWLR (PT. 316) 159 AT 178; OLUDODE vs. SALAMI (1985) 2 NWLR (PT.7) 282. It is clear from the wordings of Order II Rules 6 and 7 of the Fundamental Rights (Enforcement Procedure) Rules that made no provisions for the filing of a Further Counter Affidavit and how this would have led to a miscarriage of justice upon its being struck out due to learned Appellants Counsel€™s failure to appropriately seek the leave of the Lower Court before relying on same tends to beat the imagination of this Court. The Rules provides for the avoidance of doubt as follows;

€œ6. Where the respondent intends to oppose the application, he shall file his written address within 5 days of the service on him of such application and may accompany it with a counter affidavit.

7. The applicant may on being served with the Respondent€™s Written Address, file and serve an address on points of law within 5 days of being served, and may accompany it with a further affidavit.€

The failure to seek the leave of the Lower Court in order to rely on the said Further Counter Affidavit filed can hardly, if at all be justified under the scheme of things. Appellant€™s Counsel made a storm out of a tea cup, screaming blue murder on account of the Lower Court deciding to wield the proverbial big stick in striking down the unsolicited Further Counter Affidavit filed by Appellant which they said amounted to a denial of fair hearing by the Lower Court. But the Appellants tend to forget that the Constitutional principle of fair hearing is for all the parties involved in the matter and not only for one of the parties. The two way traffic allegorical illustrations of the concept is usually not lost to all seasoned Counsel on the subject in the sense that the concept must satisfy a dual carriage way formation that would accommodate both sides of the divide, not to the betterment or detriment of either sides, but ensuring that both sides have equal footing before the Court. See the cases of AKULEGA vs. BSCSC (2001) 12 NWLR (PT. 728) 524; NEWSWATCH COMMUNICATION vs. ATTAH (2006) 7 MJSC 88. In fact it does not lie in the mouth of the Appellant to infer the breach of their rights to fair hearing when it was they who breached the Rules and also failed to obtain leave of Court before going ahead to rely on the unsolicited Further Counter Affidavit, which naturally precipitated the action of the Lower Court. Leave as defined in Black€™s Law Dictionary 6th Edition means; €œpermission obtained from the Court to take some action. Such permission must be obtained before taking the requisite step€. See AGIP NIG LTD & ORS vs. EZENDU & 9 ORS (2010) 1 SC (PT. 11) 98 AT 168. What this naturally translates is that there are usually dire consequences where there is failure to obtain the requisite permission. This issue is therefore resolved against the Appellant.

There is also the issue canvassed by learned Appellant€™s Counsel where he contended that the main plank of the application at the Lower Court is the breach of a Tenancy Agreement by the Appellants for which the 1st Respondent unleashed threats on them and the Respondents resorted to making a report to the police. Counsel also contended that the allegation of breach of Fundamental Rights by an Applicant must be the main plank in the application for the enforcement of Fundamental Rights and that where the violation of Rights is merely ancillary, it is improper to constitute the action as one for the enforcement of Fundamental Rights. Counsel cited the cases of SEA TRUCKS NIG. LTD vs. ANIGBORO (2001) 1 SC (PT. 1) 45, and TURKUR vs. GOVERNOR OF GONGOLA (1989) 4 NWLR (PT. 117) 517 in support. It would be proper to quickly admit without more that learned Appellant€™s Counsel is of course accurate in his postulations on this issue except that the main plank in this application before Court is not one of a breach of tenancy agreement but rather one of a breach of rights whose main or principal claim is anchored on any one of the rights enshrined in Chapter Four of the 1999 Constitution of Nigeria (as Amended). The settled position of the law the is that the jurisdiction of the Court cannot be activated where the alleged breach of a fundamental right is ancillary or incidental to the substantive claim and is not the main or principal claim in the application. Usually, any relief outside the scope of the rights under the provisions of Chapter Four of the Constitution is without jurisdiction, unconstitutional and void. See the cases of TUKUR vs. GOVT OF GONGOLA STATE (Supra); SAUDE vs. ABDUILAHI (1989) 4 NWLR (PT.1160) 387; DANGTOE vs. CIVIL SERVICE COMMISSION PLATEAU STATE (2001) 9 NWLR (PT.717) 132 at 152; FRN vs. IFEGWU (2003) 15 NWLR (PT.842) 113 at 132 – 135; GAFAR vs. GOVT OF KWARA STATE & ORS (Supra).

Having critically examined the originating processes consisting of the Motion on Notice dated the 8th day of December, 2012 for the Enforcement of his Fundamental Human Rights to personal liberty, Freedom of movement and dignity of human person of the 1st Respondent as guaranteed under sections 34, 35 and 41 of the 1991 Constitution of the Federal Republic Nigeria (As amended), I simply find myself unable to disagree with learned 1st Respondent€™s Counsel that the main or principal claims of the 1st Respondent did not derive from the rights encapsulated in Chapter Four of the Nigeria Constitution 1999 (as Amended). This issue is also resolved against the Appellants.

The facts of this case are quite clear on the question of whether the arrest of the 1st Respondent as Applicant can be reasonably justified under any of the circumstances permitted by law. The 1st Respondent filed a supporting affidavit of 30 paragraphs to his motion on notice and a further affidavit of another 30 paragraphs. See pages 7 to 14 and 59 to 64 of the records of Appeal respectively. Careful perusal of these affidavits particularly paragraphs 17 to 21 shows that from the facts deposed to by the 1st Respondent he brought the arrest upon himself. By his own showing the Policemen had merely approached him, requested that he spoke on phone with the Divisional Police Officer (DPO) who had sent them and was not present at the scene and the 1st Respondent for reasons best known to him turned down the seemingly friendly overtures of the Police. The question here is; why would the Policemen not go with the impression that whatever reports lodged against him was indeed the truth? It is of course clear that 1st Respondent lost the golden opportunity to have avoided the ugly incidences that flowed from his action that day.

By accepting to speak with the DPO at the material time, would as a respected Nigerian Lawyer that he is, given him the opportunity to not only introduce himself as a law abiding citizen of this Country, but also to dispel or deny whatever allegations the Appellants must have made against him. By refusing to speak to the DPO even when the Police offered him the opportunity cannot be reasonably justified by right thinking members of the Nigerian society. In other climes, citizens are always eager to assist the Police in their efforts to nip crime in the bud either by offering information for the prevention of crimes or for the apprehension of criminals. The olive branch offered by the Nigeria Police to the 1st Respondent that fateful morning, by asking him to speak on the phone with the DPO is a rather unusual gesture coming from the Nigeria Police whose reputation in matters of this nature precedes them. That the 1st Respondent was at first so humanely treated before things got out of hand could only have happened because of the respect that the Police generally have for Nigerian Lawyers. To have turned down the offer to speak with the DPO who sent his men was indeed also slight on the authority of the Police to maintain law and order. Against the back drop of the forgoing, I hereby find and do hold that the 1st Respondent€™s arrest and detention on the date in question was the folly of the 1st Respondent€™s course of action that morning when he decided to rebuff overtures made by the Police to him. I am in total agreement with learned Appellant€™s Counsel that as citizens the Appellants have the inalienable rights to lodge a complaint to the Police when their safety is threatened. See the case of IGALI vs. LAWSON (2005) ALL FWLR (PT. 262) @ 580 PARA C €“ E; ONAH vs. OKENWA (SUPRA) @ PG 518 RATIO 7; OHANU vs. COP (2001) I CHR 407, EJEFOR vs. OKEKE (2000) & NWLR (PT. 665) 3633 @ 381 PARAS A €“ B.

The settled position of the law is that arrests properly made by the Police cannot constitute a breach of Fundamental Rights. A citizen who is arrested by the Police in the legitimate exercise of their duty and on ground of reasonable suspicion of having committed an offence or in their efforts to prevent the commission of an offence cannot sue the Police in Court for the breach of his Fundamental Rights, let alone sue the party who merely lodged a report to the Police. In the same token, the act of the Police reacting to the report made and deciding on their initiative to arrest the suspect cannot attract any liabilities to the party. See the cases of ADEFUMILAYO vs. ODUNTAN (1958) WNLR 31; GBAJORY vs. OGUNBURGUI (1961) ALL NLR 882; OKARO vs. COP (2001) 1 CHR 413; MCLAREN vs. JAMMING (2003) FWLR (PT. 154) 528. In the instant case, the Police were brought in based on the report of the Appellants who as tenants of the 1st Respondent had previously lodged a complaint that they were threatened by their landlord who had boasted that he would have them evicted unceremoniously by the use of thugs and hoodlums. On getting to the scene, the Policemen by 1st Respondent€™s own showing in his Supporting Affidavits said that he was offered the opportunity of speaking with the DPO who was waiting to have a word with him. But that he, the 1st Respondent turned down the offer and that was when he was formally placed under arrest. The arrest of the 1st Respondent was therefore the result of his own fault. I find the Police completely blameless let alone the Appellants in the circumstance. The Appellants merely lodged their complaints but the 1st Respondent literally gave the Police, in a manner of speaking, the whip with which he was flogged. The Appeal succeeds on this ground and on this ground alone, the Lower Court€™s judgment of K. A. OJIAKO, J delivered by the High Court of Imo State sitting at Mgbidi on the 25th day of February, 2013 is hereby set aside. There shall be no orders as to cost.

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Other Citations: (2016)LCN/8678(CA)