Seed Vest Microfinance Bank Plc & Anor V. Paul Adedigbo Ogunsina & Ors (2016)
LawGlobal-Hub Lead Judgment Report
SOTONYE DENTON-WEST, J.C.A.
This is an appeal against the judgment of Honourable Justice A. O. Adebusoye of the Ondo State High Court of Justice delivered on the 14th day of March 2013. The Applicant/Respondents filed an application for the enforcement of his Fundamental Human Rights dated 28th, day of September 2012, praying the Court for the following reliefs:
i. A DECLARATION that the arrest, detention and torture of the Applicant from the 24th September, 2012 to 26th day of September 2012 is illegal, unlawful, a violation of his fundamental rights to personal liberty, freedom of movement, dignity of human person as guaranteed by the 1999 Constitution of the Federal Republic of Nigeria amount to false imprisonment.
ii. A DECLARATION that the further threat of arrest and detention of the Applicant by the 5th Respondent is unlawful, unconstitutional and violation of his right to personal liberty.
iii. A DECLARATION that the relationship between the Applicant and the 1st Respondent is purely contractual and that the 3rd, 4th and 5th Respondents are not entitled to mediate and or
1
interfere in their affairs.
iv. The sum of N50,000,000.00 (Fifty Million Naira) as general damages for the pain and psychological trauma suffered by the Applicant when he was unlawfully arrested, detained and tortured by the agents of the 4th and 5th Respondents at the instruction and directive of the 2nd Respondents.
v. AN ORDER OF PERPETUAL INJUNCTION restraining the Respondents, their agents, privies, servants and whosoever from fuller threat, arrest, detention, harassment and embarrassment of the Applicants save only if the Applicant commit an offence.
?
After the exchange of pleadings and completion of trial, the High Court of Justice granted the Applicant/Respondent the following reliefs.
i. A DECLARATION that the event, detention and torture of the Applicant from 24th September 2012 to 26th September 2012 by the 1st – 4th Respondents is illegal, unlawful, a violation of his fundamental right to personal liberty, freedom of movement, dignity of human person as guaranteed by the 1999 Constitution of the Federal Republic of Nigeria and amounts to false imprisonment.
ii. A DECLARATION that the relationship between the Applicant
2
and 1st Respondent is purely contractual and that the 3rd and 4th Respondents are not entitled to mediate and or interfere in their affairs.
iii. The sum of N2,500,000 (Two Million Five Hundred Thousand Naira) is hereby awarded as general damages against the 1st – 4th Respondents jointly and severally for the pain and psychological trauma suffered by the Applicant when he was unlawfully arrested, detained and tortured by the agents of the 4th Respondent at the instruction and directive of the 2nd Respondent.
iv. An order of perpetual injunction, restraining the 1st – 4th Respondents, their agents, privies, servants and or whosoever from further threat, arrest, detention, harassment and embarrassment of the Applicant save only if the Applicant commits any offence.
And also the award of N5,000 as damages in favour of the Applicant against the 1st – 4th Respondents.
The 1st and 2nd Appellant/Respondents being unsatisfied with the said judgment appealed to this Court vide a Notice of Appeal dated 12th day of June 2013 and filed 14th day of June 2013.
?
When the appeal came up for hearing on the 10th day of March 2016, P. K. Salami
3
(Esq.), counsel for the Appellants, adopted their Brief of Argument dated 27th day of August 2014 and filed on the 28th day of August 2014. And also filed a Reply to the 1st Respondent’s brief dated 27th day of November 2015 and filed on the 1st day of December 2015. This Court was urged to allow this appeal and set aside the Judgment of the lower Court.
Present with Sam Oloruntoba (Esq.) was Pius Daodu (Esq.), Counsels for the 1st Respondent who adopted the 1st Respondent’s brief dated and filed on 6th November 2015.
Likewise, the counsel for the 1st Respondent urged this Court dismiss this appeal and affirm the judgment of the lower Court.
The Appellants formulated three (3) issues for determination.
1. Whether or not the learned trial Judge properly assumed jurisdiction in this case in Section 251(1) (P) (Q) (R) and (S) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
2. Whether or not the person who reports the commission of an offence to the police can be culpable for doing so, under the law.
3. Whether or not from the facts contained in the processes filed by the Applicant/1st
4
Respondent, he made out against the 1st and 2nd Appellants, a case of violation of his fundamental human rights, as to entitle him to an order enforcing his rights in that regard.
On the part of the 1st Respondent they adopted Issues 2 and 3 as formulated by the Appellant was adopted as theirs but submitted that Issue One (1) of the 1st Respondent as being irrelevant to this instant appeal as no issue of jurisdiction of the Federal High Court relating to Sections 251 (1) (P) (Q) (R) and (S) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) was raised in the pleadings or affidavit evidence. And also Order 6 Rule 3 of the Court of Appeal Rules has not been complied with and that the issues were not also tied to grounds of list of authorities.
ISSUE ONE (1)
The counsel for the Appellants’ contention on this issue was that the trial Judge erred in law when it assumed jurisdiction in this case contrary to Section 251(1) (P) (Q) (R) and (S) of the Constitution of the Federal Republic of Nigeria (as amended).
It was the submission of the learned counsel that the 3rd Respondent (The Commissioner of Police of Ondo State) is
5
not the employer of both the 2nd and 3rd Respondent and is both agents of the Federal Government. According to the learned counsel Section 251(1) provides:-
“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters:-
(p) The Administration or the management and control of the Federal Government or any of its Agencies.
(q) Subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far affects the Federal Government or any of its agencies; and
(r) Any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”.
Learned counsel for the Appellant argued that the 2nd, 3rd and 4th Respondents being agents of the Federal Government bestows solely on the Federal High Court the required jurisdiction to entertain the instant
6
matter and not the State High Court.
Learned counsel argued further that if the Court therefore has no jurisdiction to hear any matter before it, any step taken in relation to the matter is a nullity and is void. Referred to the cases of Adesola vs. Abidaye (1999) 14 NWLR (pt. 637) 28.
Counsel also referred to the cases of Western Steel Workers Ltd. Vs. Iron & Steel Workers Union (1986) 2 NSCC (vol. 17(786 @ 798 in support of the argument that the issue of jurisdiction can be raised at any stage of the proceedings even on appeal.
The learned counsel for the 1st Respondent on his part submitted that the issue of jurisdiction is generally approached from three dimensions, and these are territorial jurisdiction, the subject matter jurisdiction and the jurisdiction on persons.
Counsel argued that on territorial jurisdiction, the Federal High Court enjoys nationwide jurisdiction whereas a State High Court is confined to the territory of the State and that of the Federal Capital territory.
?
On the subject matter jurisdiction, the High Court of a State, by the provision of Section 236 of the 1999 Constitution enjoys unlimited jurisdiction
7
and the Federal High Court has limited jurisdiction or jurisdiction on some enumerated subject matters. Counsel for the Respondent submitted that a State High Court has jurisdiction mostly over natural persons while the Federal High Court has jurisdiction over both natural and artificial persons.
Counsel for the 1st Respondent in his submission argued that there were areas where both the Federal High Court and the High Court of State enjoyed concurrent jurisdiction and that the enforcement of Fundamental Human Rights as enshrined in Chapter IV of our Constitution was one of such. Counsel cited Section 46(1) (2) of the 1999 Constitution has been relevant to the question raised. The counsel for the 1st Respondent contended that this application was irrespective of whether the right involved comes within the legislative competence of the Federation or the State or the Federal Capital Territory.
?
The 1st Respondent further argued that Section 46(2)(b) of the Constitution while conferring jurisdiction in respect of certain matters however confers jurisdiction involving disputes between a bank and its customer in the ordinary course of banking business on
8
the State High Court. Counsel for the 1st Respondent stated that a careful reading of the facts contained therein shows that the dispute occurred between the SEEDVEST MICROFINANCE BANK PLC (Appellant) and its customer (1st Respondent) in the ordinary course of banking business.
Conclusively on Issue One (1) the 1st Respondent urged this Court to hold that the State High Court presented the requisite jurisdiction to entertain the matter.
In the Appellant’s Reply Brief of Argument, it was submitted that the 2nd, 3rd and 4th Respondents are Agencies of the Federal Republic of Nigeria and as such by virtue of Section 251(P) (Q) (R) and (S) of the 1999 Constitution should be tried by the Federal High Court. Counsel further submitted that Paragraphs 2.00, 2.01, 2.02, 2.03, 2.04, 2.05, 2.06, 2.07 and 2.08 of the 1st Respondent’s Brief of Argument has nothing to do with this case been an enforcement of fundamental rights. Counsel referred to the cases of Min. of Internal Affairs vs. Shugaba (1982) 3 NCLR, Adetona vs. I.G. Ent. Ltd. (2011)7 NWLR (pt. 1247) as cited by the learned counsel for the 1st Respondent as been opposite to the instant case
9
and therefore should be discountenanced. Counsel referred to the cases of Elelu-Habeeb vs. A.G. Federation & 2 Ors. (2012) ALL FWLR (pt. 629) 1011, Igbinedion vs. Selo-Ojemen & Anor (2013) 1 SCM 7 @ 84, Agbule vs. W.R.& P. Co. Ltd. (2013) ALL FWLR (pt. 688) 829.
The learned counsel for the Appellant reiterated that the lower Court had no jurisdiction to hear and determine this matter and declared it null and void to so do. Referred to the case of Adesola vs. Abidoye (1999) 14 NWLR (pt.637) 28 and Section 251(1) (p) (q) (r) and (s) of the 1999 Constitution.
RESOLUTION OF ISSUE ONE (1)
As can be gleaned the 1st Respondent on page 1 paragraph 1.05, objected to the issue of jurisdiction which was freshly raised by the Appellant and urged this Honourable Court to discountenance it as it was not raised in the pleadings or affidavit evidence. This stance of the 1st Respondent is at parallel with the position of the law as regards jurisdiction.
?
Jurisdiction of a Court has been defined as the authority which a Court possesses to decide matters litigated before it or to take cognizance of matters presented in a formal way for its decision.
10
See: National Bank of Nig. Ltd. Vs. Shoyoye (1977) 5 SC 181, Achineku vs. Ishagba (1988) 4 NWLR (pt. 89) 411 and Enuegwu vs. Okefi (2000) 3 NWLR (pt. 650) 620.
Also in the case of Ogunmokun vs. Milad, Osun State (1999) 3 NWLR (pt. 594) 261 @ 265 where it stated thus:
?Jurisdiction of the Court is the basis, foundation and life-wire of access to Court in adjudication under Nigerian Civil process. As Courts are set up under the Constitution, Decrees, Acts, Laws and Edicts, they cloak the courts with the powers and jurisdiction of adjudication. If the Constitution, Decrees, Acts, Laws and Edicts do not grant jurisdiction to a Court or Tribunal, the Court and the parties cannot by agreement endow it with jurisdiction as no matter how well intentioned and properly conducted the proceedings, once it is incompetent, it is a nullity and an exercise in futility.?
Also in Shell Petroleum Development Company Nigeria Limited vs. Isaiah (2001) 5 SC (pt. 11) 1, Mohammed, JSC cited with approval views expressed by the learned author of Halsbury Laws of England and observed thus:
?Jurisdiction of a Court has also been judicially defined
11
as very fundamental and priceless ‘commodity’ in the judicial process. It is the fulcrum, centrepin, or the main pillar upon which the validity of any decision of any Court stands and around which other issues rotate. It cannot be assumed or implied, it cannot also be conferred by consent or acquiescence of parties.?
The issue of jurisdiction of Court is therefore very vital and of utmost importance in the administration of justice and the settled position of the law is that it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal (as in the instance case) or to the Supreme Court. It’s a fortiori the Court can suo motu raise. Though it is desirable that preliminary objection be raised early on issue of jurisdiction so as to save time and costs but once it is apparent to any party that the Court may not have jurisdiction it can be raised even viva voce. See the cases of P.E. Ltd. vs. Leventis Trad. Co. Ltd. (1992) NWLR (pt. 244) 675, Gbadamosi Adegoke vs. Chief Nathaniel Agboola Adibi (1992) 5 NWLR (pt.242) 410, Olutola vs. Unilorin (2004) 18 NWLR (pt.905) 416, Egharevba vs. Eribo (2010) 9 NWLR (pt. 1199) 411
12
S.C.
However as to the question whether the lower Court (State High Court) had the jurisdiction to have heard and determined the application for enforcement of Fundamental Human Rights, the position of the counsel for the 1st Respondent is at tandem with mine.
By virtue of the Nigerian 1999 Constitution, the Federal and State High Courts are Courts of co-ordinate jurisdiction. The Courts are however autonomous and independent of each other and in some areas both Courts exercise concurrent jurisdiction over the same subject matter. One of the areas includes application for enforcement of fundamental right/dispute arising from banker and customer relationship and trial of federal Court cases and matters.?
The first area of our law where both the Federal High Court and State High Court exercise jurisdiction concurrently is for the enforcement of Fundamental Rights guaranteed under Chapter IV of the 1999 Constitution. The Constitution as rightly argued by the 1st Respondent confers jurisdiction on a High Court in a State to entertain and determine any matter relating to enforcement of fundamental right guaranteed by the Constitution. Section
13
46(1)(2) of the 1999 Constitution provides as follows:
?(1) Any person who alleges that any of the provision 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,
(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provision of this Section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcement or securing the enforcement within that state of any right to which the person who makes the application may be entitled under this chapter.”
It is noteworthy that the above provision (of Section 46) as well as Section 318(1) of the 1999 Constitution, which is the interpretation section of the Constitution, does not define a “High Court” referred to in Section 46 of the 1999 Constitution. In fact under the 1979 Constitution of Nigeria, a “High Court” was defined as “the Federal High Court or the High Court of a State”. See: Section 277(1) of the 1979 Constitution and
14
Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979, which came into force on the 1st of January 1980. The term a “High Court” in Section 46 of the 1999 Constitution would have the same meaning given to it under the 1979 Constitution and the Fundamental Rights (Enforcement Procedure) Rules 1979 that is applicable as an existing law by virtue of Section 315 of the 1999 Constitution.
The provision of Section 42(1) of the 1979 Constitution which is in pari materia with Section 46(1) of the 1999 Constitution was interpreted by the Supreme Court in the case of Broniks Motors Ltd. Vs. Wema Bank Ltd. (1983) 1 SCNLR 296 to the effect that where both the Federal High Court and the State High Court exists in a State, they have concurrent jurisdiction in matters pertaining to Fundamental Rights. It therefore follows that a person whose Fundamental Right is breached, or being breached, or about to be breached, may apply under Section 46(1) of the Constitution to the judicial division of the Federal High Court in a State or the High Court in a State or the High Court in the Federal Capital Territory, Abuja in which the breach occurred or is
15
occurring or about to occur.
On this issue, may I conclude by stating that Section 42(1) is a special provision created to handle specifically matters of Fundamental Rights. It cloaks any High Court in a State with the requisite jurisdiction in matters of fundamental rights irrespective of who is affected by an action founded on such rights. On the other hand, Section 230(1)(5) of the 1979 Constitution (as amended) is a general provision. The law is that where there is a special provision in the same statute capable of covering the same subject-matter, it is not to be interpreted as derogating from what has been specially provided for individually unless an intention to do so is unambiguously declared. See Federal Mortgage Bank of Nigeria vs. Olloh (2002) 4 S.C. (pt. 11) 117; or (2002) 9 NWLR (pt. 773) 475 @ 489; Grace Jack vs. University of Agriculture, Makurdi (2004) 1 Sc (pt. 11) 100.
Flowing from all I have said, the lower Court (High Court) possessed the requisite jurisdiction to have heard and determined the application hence Issue 1 is thereby resolved in favour of the 1st Respondent and against the Appellants.
?ISSUE TWO (2)<br< p=””
</br<
16
Whether or not the person who reports the commission of an offence to the Police can be culpable for doing so under the law.
The learned counsel for the Appellants submitted that all the Appellants did was to lay their complaints to the 2nd, 3rd and 4th Respondents about the alleged criminal acts of the 1st Respondent who only invited the 1st Respondent over to establish the veracity of the complaint, moreso it was the counsel’s submission that the 1st Respondent instituted the action for the enforcement of his fundamental rights in order to avoid prosecution.
?
The learned counsel for the Appellants contended that the 1st Respondent had concluded plans to defraud the company by removing the Honda Accord car with Reg. No. FM66LND (the collateral) from the jurisdiction of the Bank without its consent, coupled with the issuance of three (3) dud cheques, a criminal offence under Section 1 of the Dishonoured Cheques (Offence) Act, CAP D11, Laws of Federal Republic of Nigeria 2004 and the failure of the 1st Respondent to pay the remaining balance of the loan he took necessitated the 1st Respondent to report the case which already was tainted with
17
criminality (issuance of dud cheques) to the appropriate authority i.e. the Nigeria Police Force.
Learned counsel for the Appellant urged this Honourable Court that in view of the above, judgment delivered jointly and severally against the 1st to 4th Respondents should be set aside against the 1st and 2nd Appellants.
On the part of the 1st Respondent, the learned counsel submitted that the authority of Fajemirokun vs. CB Nig. Ltd. (2009) 5 NWLR (pt.1 135) page 589 @ 600 B-C and 606 paras a-E as cited by the Appellants was apt that it was the duty of citizens of Nigeria to report cases of commission of crime to the police for investigation and whatever happens thereafter is entirely the responsibility of the Police.
However, the learned counsel for the 1st Respondent submitted that there was a caveat to this, and that was that the reporting should not be done malafide; in bad faith. Learned counsel argued that the Appellants reported a case of obtaining money by false pretence which was done in bad faith and that the police invitation to the matter was not contained in the terms and condition for the loan.
?
Counsel submitted that
18
the affidavit evidence of the Appellants showed that he was arrested due to the loan he took and it was done mala fide to deceive and mislead the police to take unlawful action against the 1st Respondent. He referred to the case of Fajemirokun vs. CB Nigeria Ltd. (2009) 5 NWLR (pt. 1135) @ page 588, page 595 ? 596 ration 10.
In the Appellants’ Reply Brief of Argument to Issue Two (2), the learned counsel for the Appellant submitted that it was trite in law that a citizen cannot be held culpable for doing his civic duty unless it is shown to be done mala fide but this was done in bona fide and not mala fide as submitted by the 1st Respondent. It was the learned counsel to the Appellants’ contention that the issuance of dud cheques and removal of the Honda Accord vehicle (loan security) from the jurisdiction of the Bank (Ibadan) to Akure without the knowledge of the Appellants was what was reported to the police for investigation which was in compliance to Section 4 of the Police Act, 1999 Constitution. Counsel for the Appellant argued that it was settled law in the case of Fajemirokun vs. Commercial Bank Ltd. (supra) that:
“‘Where an individual
19
has lodged the facts of his/her complaint to the police as in this case by way of Petition, and the police thereupon on their own proceeded to carry out an arrests and detention, then the act of imprisonment is that of the police.”
Also cited was the case of Atiku vs. State (2010) (pt. 1 199) 241- 257, Section 419, 419A and 419B of the Criminal Code Act, CAC C38 LFN 2004, Section 4,24 and 28 of the Police Act CAP P18 LFN 2004, all was to the effect that the Nigerian Police is charged by the law with the duty to investigate all allegations of commission of crimes reported to it by members of the Nigerian public and the crime that was reported to the police fell under such category.
Learned counsel for the Appellants submitted that the 1st Respondent failed to show any form of breach to his fundamental rights entitling him to judgment award of the sum of N2,500,000.00 (Two Million, Five Hundred Thousand Naira) as general damages against the 1st to 4th Respondents jointly and severally for the pain and psychological trauma suffered by the Applicant when there was no sufficient evidence placed before the Court. Learned counsel for the Appellants therefore
20
urged this Court to set aside the judgment of the lower Court and allow this appeal.
RESOLUTION OF ISSUE TWO (2)
As to the question on Issue 1, the Appellant maintains that he was only exercising his civic duty and in good faith (uberrimae fidei) in the reporting of a criminal act to the appropriate authority, the police and therefore could not be held culpable while the 1st Respondent on his part, advanced that if the report/complaint made out to the police was in bad faith (mala fide) then it would not excuse the culpability of the Appellant.
Now, a plethora of cases have held that any complaint made or information given to those interested in investigating a matter (the police) will in the interest of the society be privileged, once there is a reasonable belief that a crime has been committed.
In the case of Oceanic Securities International Limited vs. Alh. Bashir Olaide Balogun & Ors., the Court held thus:
“Generally, it is the duty of citizens of the country to report cases of commission of crime to the police for their investigation and what happen after such report is entirely the responsibility of the police. The citizens
21
cannot be held culpable for doing their duty, unless it is shown that it is done mala fide.?
It therefore flows from the foregoing that in answering the question on Issue Two (2), that the reporting of a commission of a crime to the police does not make the reporter culpable so long as it was not done in bad faith.
Was the report made by the Appellants to the police done mala fide as claimed by the 1st Respondent? According to the Black’s Law Dictionary, Eight Edition, MALAFIDE/BAD FAITH is defined as “dishonesty of belief or purpose.”
Also in the case ofAkininwo vs. Nsirim (2008) I NWLR (pt. 1093) 439 mala fide was held to mean “the opposite of bona fide”. It simply means bad faith as opposed to bona fide, which is good faith. Mala fide projects a sinister motive designed to mislead or deceive another. Mala fide is more than bad judgment or mere negligence. It is a conscious doing of wrong arising from dishonest purpose or moral obliquity, Mala fide is not a mistake or error but a deliberate wrong emanating from ill-will.
A quick glance at page 74 of the Record of Civil Appeal, Paragraph 9 – 16 of the 1st Respondent’s Further Affidavit
22
shows that the 1st Respondent had not discharged his monthly debt payment. It is pertinent to note that this six months (6) loan for N800,000.00 (Eight Hundred Thousand Naira) was according to page 60 of Record of Appeal approved on the 4th of August 2011 and was to be fully discharged by the 1st Respondent on 3rd of February 2012 which the 1st Respondent failed to fully discharge and thereafter sought for Rescheduling of the Outstanding via Exhibit G (1st Respondent’s letter) dated 12th of April 2012, an application which granted the 1st Respondent another six months to pay the outstanding. Yet again, the 1st Respondent failed to pay a single kobo until the complaint was made to the police in September – almost five months after! See page 41 paragraph 25 of the 1st and 2nd Respondents’ (Appellants) Counter Affidavit which has remained unrefuted.
Also coupled with this was the issuance of dud cheques and the removal of the security for the loan (Honda Accord vehicle) from the reach of the Appellants after executing a document pledging it as a collateral with three bank cheques. See also Exhibit A on page 44 of record of Civil Appeal.
?
It is
23
instructive to point out clearly that the issuance of dud cheques is a criminal offence under Section 1 of the Dishonoured Cheques (Offences) Act Cap D11 Laws of the Federation of Nigeria 2004 for which the Appellants was entitled to make a report to the police. See: Chief (Dr.) O. Fajemirokun vs. Commercial Bank Nigeria Ltd. & Anor (2009) 2-3 SC (pt.1135) 58.
In the light of the following, would it then be right to say that the reporting of the 1st Respondent was done with ill-will? I would say a resounding NO! it is obviously clear that the Appellants had reasonable cause to report the acts of the 1st Respondent to the appropriate authority (the Nigeria Police) who has the constitutional powers to act on it.
In the case of Mrs. Baby Justine Luna vs. Commissioner of Police, Rivers State Police Command & Ors. (2010) LPELR – 8642 (CA) it was held that the police has the power to arrest and detain pending investigation in some cases and this power is derived from Section 214 of the Constitution of the Federal Republic of Nigeria, 1999 and that the mere exercise of that power cannot by virtue of Section 35 (1) of the 1999 Constitution amount to
24
a breach of the 1st Respondent’s Fundamental Right, even when such exercise result in the curtailing of his freedom of movement.
It is also to be noted that in exercising this power to arrest the 2nd 3rd and 4th Respondent by virtue of Section 4 and 24 of the Police Act Cap 359 LFN, have a discretion upon reasonable suspicion of committing a crime to arrest any person, including the 1st Respondent and it is generally not the business of the Courts to fetter this discretion.
See: Fawehinmi vs. I.G.P. (2002) FWLR (Pt. 1355) @ 1376 – 1377. In any case, where the police use their powers improperly, the position of the law is that the Court can stop the use of the power for that improper purpose, in other words, the Court can make an order restraining the police from arresting on some particular improper occasion or for some particular improper purpose but never to restrain the police perpetually from performing its lawful and constitutional duties.
In a nutshell, I am yet to be convinced that the Appellants made out a report to the police out of ill-will or mala fide, the facts of the case proves to show that the 1st Respondent activated the process
25
of the law against himself by the conduct earlier mentioned and the Appellants was left with little or no choice but to report to the police, no matter the nomenclature, the Appellants had reasonable cause to report to the police. Issue Two (2) is hereby resolved in favour of the Appellants and against the 1st Respondent.
ISSUE 3
Whether or not from the facts contained in the processes filed by the Applicant/1st Respondent, he made out against the 1st and 2nd Appellants, a case of violation of his fundamental human rights, as to entitle him to an order enforcing his rights in that regard.
The learned counsel for the Appellants submitted that the 1st Respondent supporting Affidavit did not prove sufficient evidence to enforce his Fundamental Rights claims against the 2nd – 4th Respondent on the ground of obtaining money through false pretence and on the issuance of dud cheque. It was the learned counsel submission that the 1st Respondent failed woefully to establish how his Fundamental Rights were violated by his two days detention based on the complaint that none made mala fide. Rather, the learned counsel submitted that the 1st Respondent was
26
not in any way dragged on the ground nor violated in any way because he confirmed that he issued a dud cheque for the sum of N167,500.00 (one hundred and sixty-seven thousand, five hundred Naira) and that these facts were deposed to in the 3rd and 4th Respondents’ Counter Affidavit on page 87 of Record of Appeal and page 41 of the Record of Appeal Paragraphs 26, 27, 28, 29, 30, 31, 32, 33 and 34.
Counsel further contended that from the deposition in the Counter Affidavit of the 2nd, 3rd and 4th Respondents, it showed clearly that the 1st Respondent had failed to establish that his rights had been infringed upon apart from his ipse dixit in spite of the burden of proof the law placed on him to prove indeed, that he was tortured; and his rights violated by the formal complaint made by the Appellants to the police inviting them to investigate and arrest the 1st Respondent on the allegation of obtaining through false pretence and the issuance of dud cheque, all this in line with the Section 214 (1) (b) of the Police Act thus:
‘There shall be police force to which shall be known as the Nigerian Police Force and subject to the provision of this section no
27
other police shall be established for the federation or any part thereof.”
Also learned counsel argued that Section 4 of the Police Act provides thus:
‘The police shall be employed for the prevention and detention of crime, the apprehension of offenders, the preservation of law and order; the protection of life and property and due enforcement of all laws and regulations with which they are directly charged and shall perform such military duties within and without Nigeria as may require by them or under the authority of this or any other Act.”
The learned counsel for the Appellants argued that from the above provision, the Appellants having realized that the 1st Respondent had relocated the collateral (vehicle) outside the agreed jurisdiction to Akure without informing the Appellants after the issuance of dud cheques on three consecutive occasion and sequel to all this was his failure to service his monthly loan payment to the Appellants.
?
Moreso, the counsel for the Appellants contended that in the face of these above stated, and the subsequent reporting of same to the police, the 1st Respondent in apprehension of being prosecuted for the
28
alleged offence hastily filed an application for the enforcement of his fundamental rights to deprive the 2nd – 4th Respondent from carrying out their constitutional duty and evade justice. Moreso, the counsel submitted that it was the delay of producing a credible surety after grant of bail that saw his detention for two days. The counsel therefore urged this Court to set aside the judgment of the trial Court.
In response, the learned counsel for the 1st Respondent submitted that the learned trial Judge was perfectly in order in giving judgment in the favour of the 1st Respondent. Learned counsel for the 1st Respondent stated that the evidence adduced i.e. the Appellants’ Counter-Affidavit, further Affidavit, Respondent Counter-Affidavit supported by a number of exhibits most especially the exhibit on approval for restructuring of the loan residual all established that there existed a banker/customer relationship between the Appellants and 1st Respondent.
?
The 1st Respondent’s counsel submitted that the reason for the arrest and detention of the 1st Respondent which are obtaining money under a false pretence and using the police to retrieve a
29
collateral were not part of the terms and condition for receiving an unpaid loan. Counsel submitted that by virtue of Section 35 (6) of the Constitution of Nigeria 1999, where a citizen’s right is violated, he is entitled to compensation and public apology.
It was submitted by the learned counsel that according to the principle of law in the case of U.B.A. Plc. Vs. Ogundokun (2009) 6 NWLR (pt. 1 138) page 450 @ 489 paras B-E, damages are said to be pecuniary compensation or award given by process of law to a person who suffered loss or injury whether to his person or property through the unlawful act or omission of another. The rationale for awarding damages is to compensate the aggrieved party for the loss or to place him in a position in which he would have been if he had not suffered damage or injury for which he is claiming compensation. The 1st Respondent thereby urged this Court to affirm the decision of the trial Court.
RESOLUTION OF ISSUE 3
It is often stated that one who comes into equity must come with clean hands (or alternatively, equity will not permit a party to profit by his own wrong). In other words, if you ask for help
30
about the actions of someone else but have acted wrongly, then you do not have clean hands and you may not receive the help you seek.
I am not saying that a “bad person” cannot obtain the aid of equity, no, equity does not demand that its suitors shall have led blameless lives. All I am saying is that if there is a nexus between the applicant’s wrongful act and the rights he wishes to enforce, then the defence of unclean hands may apply.
The Applicant/1st Respondent according to Affidavit in Support of his application had applied and gotten approval for loan about six times which was granted to him (see Exhibit A, B, C, D, E, F). The last loan for N800,000.00 (Eight Hundred Thousand Naira) was approved on 4th August, 2011, for a tenor of six months and had a monthly repayment of principal and interest, in addition, it had a Honda Accord car with Reg. No. FM66LND and 3 First Bank Cheques and 1 Zenith Bank cheques as collateral security for the loan.
?
At the expiration of the loan facility on 3rd February 2012, the 1st Respondent had defaulted in re-payment of the said loan and this prompted the 1st Respondent’s application for rescheduling of the
31
outstanding sum to be restructured over a period of six months, please note that Exhibit G, though titled as Exhibit H (the letter of Rescheduling) was dated 12/04/2012 had a six months tenor which was to expire on 11th October, 2012. Despite this gratuitous gesture by the Appellants, the 1st Respondent still defaulted in his monthly installments repayment, in fact, not a single kobo was paid. The excuses by the 1st Respondent that he did not meet up his obligations of monthly repayment as a result of alleged inaccuracies or inflated figures in his statement of account in my estimation is not tenable, I say so because the rescheduling of the outstanding was approved on 12/04/2012 i.e. two (2) months he failed to defray the earlier loan which had expired unpaid on 3rd February 2012 and the complaint to the police was made almost 6 months (26th September, 2012) after the approval was made. Is the 1st Respondent really honest in his averments by giving the excuse that he was in the process of paying a six months rescheduled outstanding which would expire in two weeks but for the delay or slow process in correcting the inaccuracies in his Statement of Account!
32
This is an implausible claim, which the acts of the 1st Respondent seem not to support.
?
Moreso, the Appellants being a Bank is a profit-making organization and I doubt if on their part they would willingly clog their own wheel for the repayment of their money for that long a time. Anyway, going further, as observed by the lower Court Judge on page 125 of the Record of Civil Appeal, the said Exhibit G contains the condition which are binding between the Applicant and the 1st Respondent on this restructured debt, some of the relevant terms/condition for the justice of this appeal, as stipulated in Exhibit G are as follows:
(i) If on due date, instalment due is not paid, such unpaid instalment will attract a penalty of between 59% per month.
(ii) lf facility remains unpaid after expiry date. It will continue to attract interest and penalty charges on monthly basis until liquidated or collateral realized.
(vii) All charges and collateral pledges created in favour of the Bank are enforceable and the customer shall not in any way and in any form whatsoever restrain, restruct, obstruct or delay Seed Vest Microfinance Bank Limited in taking
33
any steps to realize the security.
(viii) A non repayment of any due instalment amount to default on the entire facility agreement and such default entitles the Bank to call in the facility and or take steps to realize the collaterals, call in the guarantees, repossess assets purchased/leased with the funds and takes such further steps as it may deem fit to recover its funds.
(ix) Any case of a dud or returned repayment instrument or cheque shall be reported and taken up with the authorities who shall not be limited to the EFCC.
(x) The Bank shall be at liberty to review the rates applicable to this facility in line with the prevailing money market condition from time to time and such review shall be deemed acceptable to the borrower where the facility is not fully repaid immediately.
(xiii) The Bank reserves the right to alter, amend and vary the terms on which this offer is made without recourse to you.
In the case of Insheno vs. Julius Berger (Nig.) Plc (2008) NWLR (pt. 1084) 582, it was held thus:
“It is settled law that parties to an agreement or contract are bound by the terms and conditions of the contract they
34
signed.?
Also in the Supreme Court case of Best (Nigeria) Ltd. Vs. Blackwood Hodge (Nigeria) Ltd. (2011) 5 NWLR 95, the Court held thus:
?It is basic that to constitute a binding contract, there must be an agreement in which the parties are ad idem on essentials terms and conditions thereof. The promise of each party must be supported by consideration.?
Based on the above, it is glaring that the 1st Respondent breached the terms and condition in their mutually executed agreement between the 1st Respondent and Appellant and the Appellant in bid to salvage the security for the loan (Honda Accord vehicle) and to bring him to justice trailed the 1st Respondent to the city of Akure, this was in line with paragraph VIII of the terms and conditions earlier reproduced to the effect that if the 1st Respondent defaulted in repayment it entitles the Appellant to “…..take steps to realize the collateral.”
Realistically speaking, it seems to me that the Appellants whom is in the business of profit making had reached been frustrated by the seemingly fraudulent and criminally tainted actions of the 1st Respondent and decided to be
35
pro-active to recover the security for the loan, a vehicle, a movable object, a perishable object and given the complaint made to the police establishes their intent, that they were not interested in denying the 1st Respondent his freedom or anything untoward as that would not translate into the recovery of the money sought but can the same altruistic intention be read on the part of the 1st Respondent through all the currency of all that transpired between the parties.
It therefore follows that I am not inclined to agree with the learned trial Judge, whom as evidenced on page 132 paragraph 2 granted the relief of the 1st Respondent “subject to the fact that if there is a criminal offence, arising from the transaction between the Applicant and the 1st Respondent, and in particular as regards the issuance of dud cheques by the Applicant, which has not yet been reported to the police, nothing stops the 1st Respondent from lodging such a complaint and nothing precludes the police from investigating the allegation once it is reported.”
?
In my honest estimation, I do not think it would be fair, just and of good conscience to the learned trial
36
Judge to grant the request of the 1st Respondent solely on the seemingly inadvertent omission of the complaint to the police even in the face of overwhelming evidence that the 1st Respondent acts were tainted with criminality. In Paragraph 18 of the Appellants’, 1st and 2nd Respondents’ Counter Affidavit, it stated thus:
‘That the 1st Respondent at the due date presented the three bank cheques issued by the Applicant for payment but all the cheques were returned unpaid and the Applicant was notified accordingly.’
The above was evidenced by Exhibit E (a copy of the Applicant’s Statement of Account showing details of dishonoured cheques issued by the Applicant. Also see page 28 of Record of Civil Appeal.
?
It is noteworthy that the 1st Respondent’s response to this criminal allegation as encapsulated in the further Affidavit was that the Appellant had inserted date on the cheque and presented it for payment before the agreed date. How plausible is this? Are cheques issued in perpetuity and why would the Appellants go on a wild goose chase on its own frolic? The reasonable explanation I can proffer is simply that the 1st Respondent must
37
have made him believe the cheque could be cashed!
Remember this was at three different times!
And as mentioned earlier, this was an offence under Section 1 of the Dishonoured Cheques (Offences) Act Cap D11 Laws of the Federation of Nigeria 2004 and for which the Appellant were entitled to make a report to the police. See: Chief (Dr.) Fajemirokun vs. Commercial Bank Nigeria Ltd. & Anor (2009) 2 – 3 (pt. 1 135) 58.
Furthermore, on page 1’27 paragraph 2 of the Record of Appeal, the lower Court had reason to call the integrity of the 1st Respondent to question when it stated thus:
‘The story of the Applicant on how he came about the rescheduling of his debt with the 1st Respondent does not accord with normal banking practice and worse still, it conflicts with common sense. A debtor would not ordinary be granted any further favour by a bank unless he applies for such and shows reason. The position as painted by the Applicant is therefore not believable as it is obvious that one thing must have led to the other before 1st Respondent would have conceded to allow him, a debtor to reschedule his debt. Exhibit H attached to the
38
Affidavit in support by the Applicant is an attempt by the Applicant to tailor his case along his own line of reasoning which is warped.?
If, as observed by the lower trial Judge, the 1st Respondent can attempt a volte-face even in the face of evidence against him by denying a simple agreement entered into willfully; is such a person to be believed, when he comes up with allegations of torture, harassment etc? Even if we agree that he was detained more than 24 hours, has his position changed? What exactly is the award of 2.5 million for? The judgment read that it is for the pain and psychological trauma suffered! I ask what about the corporate entity (Appellants) whose life could be snuffed out by the non-payment of its money, or does it not also have a right of existence whose survival is basically on profitability? Remember in the first place that it was the 1st Respondent that approached the Appellants for assistance in the first place, which it graciously granted severally, would it then be fair to heap on its head, a judgment debt of the sum of N2.5 million while it was trying to recover a mere debt of a fraction of that amount
39
especially when the judgment creditors’ hands are unclean!
There is a wise saying that in order to know where you are going, you need to know where you are coming from.
In the face of all that I have reasoned, I dare say that from the facts contained in the processes filed by the Applicant/1st Respondent, a case of violation of his Fundamental Human Rights has not been made out by him to entitle him to the orders made, there exist a nexus between the 1st Respondent’s wrongful act and the rights he wishes to enforce, I therefore resolve this issue in favour of the Appellants and against the 1st Respondent.
The totality of all that is being said here is that the relationship between the parties was made degenerative by the 1st Respondent antics and therefore the Court should be wary in inadvertently placing a seal of approval on the antics of the 1st Respondent on a tales of violation of his Fundamental Human Rights, especially when his hands are tainted.
?
Therefore, the order I am making is one setting aside the judgment of the lower Court delivered on the 14th day of March 2013. I make no order as to cost.
Other Citations: (2016)LCN/8598(CA)
