Skypower Express Airways Ltd. V. Ajuma Olima & Anor (2005)
LawGlobal-Hub Lead Judgment Report
NZEAKO, J.C.A.
This is an appeal against the ruling of Kolo, J., sitting at the Federal High Court, Jos, delivered on 15th January, 1997, against the appellant herein, who was the 3rd respondent in the court below. Two others who did not appeal were the 1st and 2nd respondents.
The respondents in this appeal were the applicants in the court below. They were citizens residing at Omutele village of Benue State. They are the relations of one Frank Olima, said to be a staff of the appellant, a company in Lagos. They claimed that at the “instance” of the appellant, the police came to their said village on 27/11/96, arrested them and took them away to Lagos, where they were detained at the Zone II Headquarters C.I.D., Onikan, Lagos. As deposed in the affidavit in support of the respondent’s claim, the reason for their arrest was that their said relation, Frank Olima was alleged to have committed some offence at his place of work as a staff of the appellant and could not be found. The deponent, Mrs. Etum Olima, the mother of Frank swore that she informed the policemen who came to the village, that Frank did not come home and that she was not aware that he had committed any offences as alleged. They arrested her and the respondents, but after some pleading, they left her and took away the respondents who did not commit any offence to warrant their arrest and detention.
By a motion ex parte dated 4th December, 1996, the respondents applied to the Federal High Court for an order to enforce their fundamental rights and for interim reliefs on grounds set out in their statement in support. Their prayers are:-
(i) An order granting leave to the applicants to apply for an order enforcing their fundamental rights against the respondents in terms of the reliefs set out in the statement accompanying this application and on the ground set out therein.
(ii) An order directing the respondents herein to release the applicants forthwith pending the determination of the substantive motion.
(iii) A further order directing the respondents, their servants, or agents to file before this Honourable Court within seven days from the date of the order now sought evidence of the release of the applicants.
On 9/12/96, the court below made an order ex-parte in those terms. A 4th order required that the court’s order and processes, together with the motion on notice be served on the appellant and the other respondents to enable them attend court on 19/12/96 for the hearing of the motion on notice filed by the respondents.
It is common ground that those processes were served on 12/12/96 on the appellant in Lagos.
The motion on notice, prayed the court below as follows:-
(a) A declaration that the arrest of the applicants by the 1st and 2nd respondents’ agents on the 27/11/96, at the instance of the 3rd respondent herein and the continued detention of the applicants at the 2nd respondent’s office in Lagos, since the date of the arrest aforesaid is unconstitutional, illegal and unlawful detention of the applicants amounts to a gross infringement of the applicants fundamental rights guaranteed under sections 32(1) and 38(1) of the 1979 Constitution of the Federal Republic of Nigeria, as amended.
(b) The sum of N2.5 million being exemplary damages for unlawful arrest and detention.
When this motion on notice came up for hearing on the return date of 19/12/96 fixed by the court, notified the appellants and the other parties on 12/12/96, and notwithstanding that all the processes were duly served on them, they neither filed a counter-affidavit nor were they in court. In short, the appellant took no steps to defend the action or make any returns. The learned trial Judge after checking through the court’s records and observing this, permitted O. B. James, Esq., of counsel for the respondents to move the motion. This he did, noting among other things that the respondents were still being detained as at that date and, he urged the court to grant the application.
The court adjourned for ruling to 15th January, 1997.
On 15/1/97, as the record of proceedings shows, Mr. James announced appearance for the applicant, and Tunji Adesheye, Esq. appeared for the 3rd respondents, (now appellants in this appeal).
The learned trial Judge then proceeded to deliver his ruling in which he granted the applicants’ prayers and awarded N500,000.00 exemplary damages against the 3rd respondents. Mr. James asked for N3,000.00 costs. Mr. Adesheye replied that they would leave the cost at the discretion of the court. The court then awarded N1,000.00 costs to the applicants. (See page 26 of the records).
It is against this ruling the 3rd respondents now appealed to this court.
Parties in accordance with the rules of this court exchanged briefs of argument.
It is to be observed that the appellants had filed 2 notices of appeal-one dated 15/1/97, the other, 29/1/97. There is no record of the first one being withdrawn. As the appellants’ brief was predicated on that of 29/1/97, the first notice of 15/1/97 is deemed abandoned, and it is hereby struck out.
The appellant had filed a brief of argument on 15/12/97. They later withdrew this due to some anomalies therein and it was struck out on 7/12/2004. With leave of this court, they filed another brief out of time, deemed properly filed within time on 7/12/2004.
In their brief of argument, the appellant’s counsel identified the following 4 issues for determination from the 5 grounds of appeal:-
- Whether in the circumstances of the case, the learned trial Judge was right to have fixed and heard or conducted the proceedings under Order 2 rule 1 on 19/12/96 and if not, whether the proceedings with the order granting the respondents’ reliefs is not a nullity. Further, whether the lower court in the circumstances has jurisdiction to hear the matter and give judgment against the appellants. This issue relates to ground one (1) of the grounds of appeal.
- Whether by the proceedings of 19/12/97, taken in its absence as well as the judgment of 15/1/97, at which the lower court ignored the processes filed and the presence of counsel for appellant, the appellant’s fundamental light to a fair hearing guaranteed by S.33(1) of the 1979 Constitution has not been violated such that the proceedings are a nullity. This issue is related to ground two (2) of the grounds of appeal.
- Whether in the circumstances of the case, the appellant’s address for service being in Lagos, the trial Judge ought not to exercise the discretion allowed him by Order 2 rule (1) as to the period of 14 days within which to hear the application. This issue relates to ground four (4) of the grounds of appeal.
- Whether on the evidence before the court, the respondents’ claim disclosed any reasonable cause of action against the appellant to find it liable to damages and whether in any event, the award of N500,000.00 damages against the appellants was in law justified, warranted, reasonable and supportable by the evidence before the court. This issue is relative (sic) to ground five (5) of the grounds of appeal.
It seems to me that issue 2 above also relates to ground 3 of the grounds of appeal.
The respondents’ counsel distilled in their brief of argument, 3 issues for determination thus:-
(1) Whether in the circumstances of the case, the learned trial Judge was right to have proceeded with the hearing of the motion on notice on the 19th December, 1996.
(2) Whether the appellant’s preliminary objection and counter-affidavit were before the court prior to the delivery of the ruling on the 15th January, 1997.
(3) Whether the award of N500,000.00 damages was legally justifiable given the facts and circumstances of the case.
After perusing the records, the grounds of appeal, the judgment of the court below and the issues identified by each party in the appeal, it is my view that the issues which ought to be addressed in this appeal, are simply:
(1) Whether the learned trial Judge was right to have heard the motion on notice on 19/12/96 and delivered his ruling on 15/1/97 having regard to the provisions of section 33(1) of the 1979 Constitution and Orders 2 and 4 of the Fundamental Rights Enforcement Rules grounds 1 and 4.
(2) Whether the award of N500,000.00 exemplary damages by the court below against the appellant in favour of the respondents was justifiable, in the circumstances of this matter – ground 5 of the grounds of appeal.
Issue No.1 above incorporate the appellants’ clumsily couched issues 1 & 2 and issue 3 and the respondents’ more elegant issue 1. Issue No.2, meets the sense of appellant issue 4 and the respondents’ issue 3.
Issue No.1
In respect of this, the appellants first express the view that since the respondents’ motion on notice was under Order 2 rule 1 of the Fundamental Rights Enforcement Rules, they were entitled to “8 clear days” notice from 12/12/96 when they were served with the processes before the hearing of the motion. That the motion was considered under that Rule and that it was incompetent for the learned trial Judge to have heard the motion on 19/12/97.
Learned Counsel for the appellant submitted that the mention of Order 4 of the Rules in the motion was of no moment. That the ex parte motion was neither brought under Order 4 nor considered thereunder and Order 4 did not apply. That the order was not made under rule 1(a) and (b) of Order 4 “to ground the hearing of the motion on notice within 5 days under rule 2”.
He concluded that the hearing in a period not up to 8 clear days was a nullity citing Ezeadukwa v. Maduka (1997) 8 NWLR (Pt. 518) 635 at 656 B-G and 658 B-C. He added that the permission granted the respondents on 19/12/96 was without jurisdiction.
Mr. James for the respondents submitted in this respect that the complaint of the applicant in the motion, now the respondents in this appeal was about wrongful and unlawful detention to which Order 4 rules 1(1) and 1(2) (read together) apply. They require at least 5 clear days between the service of the summons or motion and the hearing date. That the motion for leave granted on 9/12/96 and other processes were served the appellant on 12/12/96, a period of 6 clear days before the hearing date of 19/12/96. That the motion was ripe for hearing, when it was heard on 19/12/96. That in the absence of the appellants and counsel, there being no letter for adjournment nor did anyone inform the court about any request for an adjournment, there was nothing to inhibit the court from proceeding to hear the case.
It is well settled, that if a relief or remedy is provided for by or under any written law, common law or equity, the remedy properly claimed by the party who seeks it, cannot be denied simply because he has applied for it under the wrong law or that counsel has cited the wrong authority or failed to cite one. See Falobi v. Falobi (1976) 9-10 SC 1; (1976) 1 NMLR 169, Okonji v. Njokanma (1999) 14 NWLR (Pt. 638) 250.
The reasoning is that these days, our courts are more concerned with pursuing and doing substantial justice where the circumstances of the case so desire and merit it, rather than bowing to technicalities. See City Engineering Ltd. v. Nigerian Airports Authority (1999) 11 NWLR (Pt. 625) 76.
A court is fully entitled to refer to the appropriate law where counsel has relied on a wrong authority or not relied on any at all, if the use of the authority will enable it resolve the matter in contest and arrive at a just decision. To do otherwise will only defeat the course of justice.
It is trite law that, provided a court arrives at the correct decision, that it did so via citing of the wrong or inappropriate section of the law, is not sufficient to upturn the judgment. Henry Stephens Engr. Ltd. v. Complete Home Ent. (Nig.) Ltd. (1987) 1 NWLR (Pt. 47) 40, Okonji v. Njokanma (supra), Falobi v. Falobi (supra).
It follows that a court of justice is entitled to examine, the whole of a statute to identify what provision applies to the matter before it and once the party seeking redress under the law is entitled thereto, the court would proceed to apply the appropriate and applicable provision. I have therefore in this matter, looked at the Constitution and the Fundamental Rights Enforcement Rules, 1979, as applicable to the matter before the court below.
There is no doubt that the applicants, now the respondents, detained in the circumstances of the case were entitled to seek redress under those Rules. The relevant Rules for the issues canvassed by the parties herein are:
Order 1 rule 2, Order 2 rule 1 and Order 4 rule 1 and 2. They provide as follows:-
Order 1 rule 2(1) “Any person who alleges that any of the Fundamental Rights provided for in the Constitution and to which he is entitled, has been, is being, or is likely to be infringed may, apply to the court in the State, where the infringement occurs or is likely to occur, for redress.
(2) No application for an order enforcing or securing the enforcement within that State of any such rights shall be made unless leave therefore has been granted in accordance with this rule.
(3) An application for such leave must be made ex parte to the appropriate court and must be supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought, and by an affidavit verifying the facts relied on.
(4) The applicant must file, in the appropriate court, the application for leave not later than the day preceding the date of hearing and must at the same time lodge in the said court enough copies of the statement and affidavit for service on any other party or parties as the court may order.
(5) The court or Judge may, in granting leave, impose such terms as to giving security for costs as it or he thinks fit.
(6) The granting of leave under this rule, if the court or Judge so directs, shall operate as a stay of all actions or matters relating to, or connected with, the complaint until the determination of the application or until the court or Judge otherwise orders.
Order 2 rule 1(1) When leave has been granted to apply for the order being asked for, the application for such order must be made by notice of motion or by originating summons to the appropriate court, and unless the court or Judge granting leave has otherwise directed, there must be at least eight clear days between the service of the motion or summons and the day named therein for the hearing. Form No. 1 or 2 in the appendix may be used as appropriate.
(2) The motion or summons must be entered for hearing within fourteen days after such leave has been granted.
(3) The motion or summons must be served on all persons directly affected, and where it relates to proceedings in or before a court, and the object is either to compel the court or an officer thereof to do any act in relation to the proceedings or to quash them or any order made therein the motion or summons must be served on the Registrar of the court, the other parties to the proceedings and, where any objection to the conduct of the Judge is made, on the Judge.
(4) An affidavit giving the names and addresses of, and the place and date of service on, all persons who have been served with the motion or summons must be filed before the motion or summons is listed for hearing, and, if any person who ought to have been served under paragraph (3) has not been served, the affidavit must state the fact and the reason why service has not been effected, and the said affidavit shall be before the court or Judge on the hearing of the motion or summons.
(5) If on the hearing of the motion or summons the court or Judge is of the opinion that any person who ought to have been served with the motion or summons has not been served, whether or not, he is a person who ought to have been served under paragraph (3), the court or Judge may adjourn the hearing on such terms, if any, as it or he may direct in order that the motion or summons may be served on that person.
Order 4 rule 1(1) In an application where the applicant complains of wrongful or unlawful detention, the court or Judge to whom the application is made ex parte may make an order forthwith for his release from such detention, or may –
(a) direct that an originating summons as in the Form 2 in the appendix be issued or that an application therefore be made by notice of motion, as in the Form 3; or
(b) adjourn the ex parte application so that notice thereof may be given to the person against whom the order for the release of the applicant is sought.
(2) The summons or notice of motion must be served on the person against whom the order for the release of the applicant is sought and on such other persons as the court or Judge may directs, and, unless the court or Judge otherwise direct, there must be at least five clear days between the service of the summons or motion and the date named therein for the hearing of the application.”
In the first instance, I have no doubt that the rule applicable to the motion in this matter is Order 4 rule 1 (supra). The reliefs sought by the applicants/respondents earlier set out confirm that they complain of “unconstitutional, illegal and unlawful” arrest amounting to gross infringement of their fundamental rights.
It is that rule which applies and entitles the appellants to at least 5 clear days from the date of service of the summons or motion and the hearing date named therein.
Leave was granted on 9/12/96. These processes were served on 12/12/96. The matter was heard on 19/12/96 which is at least 6 clear days from 12/12/96. Learned Counsel for the respondents was correct in his submission when he stated that the argument for the appellants which rely on Order 2 rule 1 of the Fundamental Rights Procedure Rules failed to take into consideration the nature of the applicants’ complaint.
It is my view that whether the application or motion was brought under Order 2 rule 1 or Order 4 or both, it is of no moment, in view of the principles in Falobi v. Falobi, Okonji v. Njokanma (supra), City Engineering Ltd. v. N.A.A. (supra) and other legal authorities. The obvious conclusion is that where an applicant complains of unconstitutional, illegal and unlawful arrest and detention in breach of his fundamental rights and applies for the enforcement of his rights under the Fundamental Rights Enforcement Rules, the summons or notice of motion issuable thereunder shall be served on the party against whom an order for the release of the applicant is made, giving such a party at least five clear days from the date of service and the hearing date for the application, named by the court unless the court itself directs otherwise. So it is provided in Order 4 rule 1(2) supra.
In the present matter, there is no evidence tendered by the appellants to show that the court below directed any time beyond the 5 clear days prescribed under Order 4 rule 1 (supra), to entitle the appellants to any longer time as they claim.
I must add, and this is important that by virtue of Order 2 rule 1(1), inspite of the requirement for a notice of 8 clear days, the court granting leave has power to direct otherwise. Thus the court below which granted the order ex parte on 9/12/96 acted also within its jurisdiction when it fixed a return date of 19/12/96.
It is a correct proposition and interpretation of Order 2 rule 1 and Order 4 rules 1(1) and (2) when read together, and, they ought to be read together, that Order 2 rule 1 is of general application whereas Order 4 is of specific application, limited to application complaining of unlawful arrest and detention under the Fundamental Rights …Rules. I should think Mr. James was right when he referred to Order 4 rules 1(1) and (2) as an exception to Order 2 rule 1 of these rules. Yet, both rules in my view adequately apply to the proceedings as conducted by the court below. The court acted within its powers and jurisdiction.
The present application, its fixture and hearing are clearly competent and not as urged for the appellant. The case of Ezeadukwa v. Maduka (supra) relied on by the appellants is inapplicable in the manner the appellants would have it apply.
Let me further state that that case of Ezeadukwa v. Maduka was cited to buttress the argument that the fixture of the motion on notice for 19/12/1996 made the application incompetent. First, the fact is that the argument itself is misconceived. Secondly, the decision at page 656 B-G and p. 658 B-C relates to a situation, the opposite of that in this matter, namely, where the court below presided over by Ekurekwu, J., failed to fix the motion on notice within 14 days after leave to enforce applicant’s fundamental right was granted, but fixed it 51 whole days later, contrary to the mandatory provision of Order 2 rule 1(2) of the Fundamental Rights … Rules. The Court of Appeal held that the High Court later (presided over by another Judge Nzeako, J., (as he then was) after the filing of the motion on notice) had no jurisdiction to entertain same and the proceedings fixed out of time and the subsequent judgment become a nullity.
It is not the case herein. The hearing date fixed by the court below was in accordance with the applicable, Order 4 rule 1 of the Fundamental Rights … Rules as earlier determined. Therefore the proceedings of 19/12/96 with ruling of 15/1/97 are not a nullity. The Ezeadukwa case is therefore inapplicable.
Counsel for the appellants have further submitted that based on the foregoing, that the hearing of 19/12/96 and judgment of 15/1/97 without looking at the preliminary objection and counter-affidavit or cognizance of counsel to the appellants amounted to a violation of the appellants’ right to fair hearing under section 33(1) of the 1979 Constitution. He referred to Ekiyor v. Bomor (1997) 9 NWLR (Pt. 519) 1, Funduk Engr. Ltd. v. McArthur (1995) 4 NWLR (Pt.392) 640. It is my respectful view that this submission is totally misconceived. No preliminary objection or counter-affidavit came before the court. None formed any part of the ruling appealed against.
These submissions and others contained in the appellants’ brief, deserve some detailed comment, albeit to correct and straighten misrepresentations/misconceptions inherent in them.
In the concluding part of the submission of learned Counsel for the appellant in his brief of argument, also stated that “invariably what follows from” his proceeding submissions was that the learned trial Judge failed to exercise his discretion judicially etc” to stay the judgment of 15/1/97 and to hear the appellants’ first. He said:-
“The preliminary objection and counter-affidavit at pages 30- 32 as well as the presence of counsel for appellants, i.e. Mr. Adesheye, were not for fancy (sic). It is urged that the facts ought to induce an inference that the appellant intended to oppose or contest the respondents’ claim. The court is urged to so infer”.
With respect to Mr. Esezoobo who signed the brief of argument, this submission is a total misrepresentation of the facts and the law having regard to the evidence, and facts on record including the contents of the Judge’s notes in the record of proceedings. A counsel who fails to perform his duties in court could very well regard himself as being “for fancy”. Such is the case where for over 21 days – 12/12/96 to 15/1/97, there was nothing filed for the appellants, no appearance, no letter for adjournment, no oral comment or application on the only date 15/1/97 when Mr. Adesheye appeared in court.
As the records show, and this is admitted by the appellants, they were duly served necessary processes on 12/12/96. The hearing date of the motion on notice being 19/12/96 fixed by the court below was known to them. The ex parte order of the court referred to earlier was served them with the motion on notice. They neither appeared, nor wrote to the court explaining their absence. They filed nothing from 12/12/96 to 19/12/96 and up to 15/1/97 in such a matter relating to the fundamental rights and freedom of the citizen.
The records show also that the court proceeded to hear the motion, after observing their absence and-due service of the processes on them. It adjourned for ruling thereafter to 15/1/97. The appellants took no action even 21 days afterwards, up till the time the court read and concluded reading its ruling on the said 15/1/97. While Mr. Adesheye of counsel for the appellants was in court, no application, whether oral or in writing was made or mentioned to the learned trial Judge, nor was any explanation offered for their failure to take any action for so long from, 12/12/96 to that 15/1/97 in a matter involving the freedom of the two citizens, the respondents herein. From all intents and purposes and according to the legal system of this land, they are innocent of any offence. Recall that the respondents were arrested since 27/11/96 from their village in Benue State and whisked off to Lagos and detained – reason – they were relations of a third party alleged to have been an employee of the appellants from whom he had allegedly stolen.
The records show that on 15/1/97 after Mr. James announced appearance for the applicants, Mr. Adesheye announced himself as appearing for the 3rd respondents (now the appellants).
The court read its ruling. Having granted the applicant’s prayers, Mr. James asked for N3,000.00 cost against the respondents.
Mr. Adesheye simply replied thus:
“We leave the leave (sic) of cost to the discretion of the court”.
The court awarded N1,000.00 costs. The matter thus came to an end. I am unable to see how the learned trial Judge had erred in any way in these circumstances when no application was placed before him nor his attention drawn to any processes. In particular, it is most essential to observe that in the course of delivering the ruling, he specifically referred to the appellant’s absence, and failure to excuse themselves on 19/12/96, the hearing date, despite the fact that they were duly served on 12/12/96.
This is what he said:-
“On 19/12/96, when the motion came up for hearing Mr. O. B. James, the learned Counsel for the applicants urged to be allowed to move the same even though the respondents were neither present nor represented. His ground was that the said respondents were duly served to be in court on that 19/12/96, but they failed to show up nor was there any explanation in lieu. After checking through the records as contained in this case file, I found that toe respondents was actually served as asserted by the learned counsel for the applicants. The said records show the following”.
The learned trial Judge then proceeded to set out the contents of the affidavit of service in respect of each and everyone of the respondents, including the 3rd respondents, i.e. the appellants herein. They were served by the same bailiff named in the ruling.
Let it be noted from the records, that Mr. Adesheye for the appellants said absolutely nothing to the foregoing.
The court below cannot be blame-worthy. The learned trial Judge had no alternative but to proceed with the hearing of the motion on notice in the absence of the appellants on 19/12/96 and deliver his ruling on 15/1/97.
It goes without argument, having been well settled that fair hearing is a fundamental matter. It is a constitutional right to which every party is entitled. It follows that every party must be accorded an opportunity of being heard. See PDP v. INEC (1999) 11 NWLR (Pt. 626) 200 at 265.
A party in a suit, who is put on notice of hearing and is duly served with necessary processes and, who did nothing at all, neither filing anything in response to the processes, nor appearing in court on the date or adequately excusing himself, cannot complain of denial of fair hearing. He has no right whatsoever to blame the Judge who has a duty to adjudicate timeously on a matter before him and proceeds to do so.
Put in another way, what right to fair hearing connotes, is that a party must be given an opportunity of being heard. Therefore, where a party fails to appear, given the opportunity to do so, and the court proceeds to hear the matter, it cannot be said that the party has not been given, or has been denied fair hearing. See Okoroike v. Igbokwe (2000) 14 NWLR (Pt. 688) 498, Nwasu v. Nwasu (2000) 4 NWLR (Pt. 653) 351, Buzu v. Garabi (2000) 13 NWLR (Pt. 684) 228, Otu v. Udonwa (2000) 13 NWLR (Pt. 683) 157, Okeke v. The State (2003) 15 NWLR (Pt. 842) 25 SC at 110, INEC v.Musa (2003) 3 NWLR (Pt. 806) 72 SC at 195-196 (per Tobi, JSc. In the latter matter, the Supreme Court held that fair hearing, in essence means giving equal opportunity to parties to be heard in litigation before the court and where parties are given opportunity to be heard, they cannot complain of breach of the right of fair hearing.
In a case where the trial court refuses or fails to allow a party to present his case, his constitutional right to fair hearing is obviously breached.
A court of trial is bound to hear and pronounce on every application before it. That is what the law states. See Afro Continental (Nig.) Ltd. v. Co-op. Association of Professional Inc. (2003) 5 NWLR (Pt. 813) 303 SC, where Mohammed, JSC had this to say for the guidance of all adjudicators and parties:
“It is settled law and mandatory that a court must make a decision and pronounce on every application which is before it and failure to do so is a breach of fair hearing. See also the case of Okeke-Oba v. Okoye (1994) 8 NWLR (Pt.364) 605”.
A party who has placed no application before the court cannot accuse the court of denial of fair hearing.
When all the forgoing principles are applied to this matter in which no application was made to the court below when the trial Judge delivered his ruling nor was any application brought to his notice, he cannot be accused of failure to hear the respondents/appellants or of breaching their fundamental right of fair hearing.There is nothing on record showing that the processes filed on 15/1/97 by the appellant the same day as the ruling, were filed before the learned trial Judge read his ruling nor were they brought to his attention at all. The question as to when they filed them and why they were not mentioned in court lies with the appellants to answer.
I am inclined to believe learned Counsel for the respondents that those processes were served on him after the court below delivered its ruling on the morning of 15/1/97 and as the records show, they were never brought to its attention.
The complaint of the appellant for denial of fair hearing is a ruse when from 12/12/96 they took no steps to respond to the order of the court served on them till 15/1/97, in a matter in which the freedom of citizens was at stake. Even on that 15/1/97 after they took no steps to file their processes within time, they did not bother to bring up the matter for the attention of the court. No such processes were before the court and ever came before it.
In his brief of argument Mr. James, of counsel for the respondents referred to the appellant’s action in putting the blame on the trial Judge. He submitted that that must be deprecated. For appellant’s counsel was trying to give the impression that the motion for preliminary objection and counter-affidavit were before the court prior to the ruling when that was not so, as the records clearly show.
I agree. Parties and counsel must also be fair to the court as all perform in the temple of justice. In this matter, there was nothing before the court below which it refused or failed to attend to or determine as complained of by the appellants’ counsel.
This issue is determined against the appellants. With them, the relative grounds of appeal go down and are dismissed.
Issue No.2: Appellants complain of the award of N500,000.00 damages against the appellants by the court below.
Learned counsel for the appellants has argued also that there was no legal basis for that. That the claim simply stated N2.5 million being exemplary damages for unlawful arrest and detention. That it did not state “jointly and severally” as is common practice in matters of joint tort feasors and it is speculative who is liable for what. That there was no evidence of exemplary damages and the nature of the act and extent of involvement of the appellant. That the award was unreasonable, unwarranted excessive and not supported by law.
The learned Counsel for the respondents has on the other hand, urged us to note that the complaint of the respondents is set out in their affidavit which constitute evidence of facts set out therein.
Affidavit evidence is in law evidence, just as viva voce evidence See Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688. Therein, the Supreme Court made it clear that;
“Evidence includes affidavit evidence. For, it is a matter of common knowledge that on any cause … begun by originating summons or … motion, and on any application, evidence may be given by affidavit …”
(See page 715, per Nnaemeka-Agu, JSC).
Learned Counsel for the appellants’ submission that there was no evidence of exemplary damages and the nature of the act and extent of the involvement of the appellants, appears not to be seised of those principles.
The response of counsel for the respondents adequately answer the appellant’s grouse. It is that the affidavit of the respondents in support of their application, embodies evidence which show that they were arrested at their village in Benue State, taken to Lagos, and subsequently detained for no reason, simply because a relation of theirs, a Frank Olima, alleged to have committed an offence at the place of his employment in the appellant’s company, could not be found. That the arrest took place on 27/11/96. That they remained in detention in Lagos ever since.
Up till the date of the ruling on 15/1/97 notwithstanding the order of the court that they be released on bail. (This is to be inferred from the total inaction of the appellants. For, after they were served the order of the court on 12/12/96, they made no returns to the court below to show compliance. They failed to appear in court or profer any reason for their non-appearance on the hearing date 19/12/96, notice of which they had).
Mr. James also pointed out, that their detention was deposed to in the affidavit to be at the instance of the appellants which was not denied.
The appellants neither filed a counter-affidavit to controvert any of the averments in the affidavit of the respondents before the learned Judge. I would uphold the respondents’ argument.
It is trite law that a trial court is always entitled to accept and/or act upon unchallenged and uncontradicted evidence. See Boshali v. Allied Commercial Exporter Ltd. (1961) All NLR 917 or (1961) 2 SCNLR 322, a decision of the Privy Council. Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt. 361) 124 at 139 (per Iguh, JSC). In the Boshali case the court had this to say:-
“The only evidence as to loss came from the appellant…, who was not cross-examined … The trial Judge was, in their Lordships’ view fully entitled in the absence of any contrary evidence to take the figure of … as appellants loss of profit”.
Where a party has every opportunity to challenge evidence given by the opposite party in any proceedings but failed to do so, he cannot complain if the court seised of the matter, acts on such unchallenged evidence before it. In Omoregbe v. Lawani (1980) 3-4 SC 108 at 117 the Supreme Court of Nigeria held that where evidence given by a party or his witnesses is not challenged by the opposite party who had the opportunity to do so, that it is open to the court before whom the matter is placed to act on the unchallenged evidence. See also Odulaja v. Haddad (1973) 11 SC 357, Nigerian Maritime Services Ltd. v. Afolabi (1978) 2 SC 79 at 81.
In particular, and this is well settled, where a defendant offers no evidence whatsoever in defence, the evidence before the trial court obviously goes one way, with no other set of facts or evidence on the opposite side weighing against it. There is nothing to put on the other side of the “imaginary scale” of justice or balance and, in that case, the onus of proof is naturally discharged on minimal proof. See Nwabuoku v. Ottih (1961) 1 All N.L.R. 487 at 490, also (1961) 2 SCNLR 232, Oguma Associated Co. (Nig.) Ltd. v. I.B.WA. (1988) 1NWLR (Pt. 73) 658 at 682, Balogun v. U.S.A. Ltd. (1992) 6 NWLR (Pt. 247) 336 at 354, Ikono L.G. v. De Beacon Finance & Securities Ltd. (2002) 4 NWLR (Pt. 756) 128 at 140.
As a matter of special situation such as arise in this case, it is well settled that any averment in an affidavit not challenged or contradicted in a counter-affidavit must be accepted and acted upon by the court as true – See Ikono L. G. v. De Beacon (supra), Nwangwa v. Military Governor, Imo State (1987) 3 NWLR (Pt. 59) 185, Egbuna v. Egbuna (1989) 2 NWLR (Pt. 106) 773 at 777 per Uwaifo, JCA (as he then was). Alagbe v. Abimbola (1978) 2 SC 39 at 40.
In this matter, the only affidavit evidence before the court below was that filed by the respondents. They were not controverted. It follows that the learned trial Judge was entitled to accept and act on the affidavit of the respondents in support of their motion which was the only evidence before him. It conveys the basis and evidence for the claim for exemplary damages. This is also inherent in the act deposed to as being at the instance of the appellant that is the act of arresting and detaining the respondents who were shown not to have committed any offence whatsoever but were only said to be relations of a person who was alleged to have committed an offence yet to be proved.
On the point raised by the appellant that to succeed in their claim, the respondents must prove that the appellant initiated the arrest and detention or continued detention of the respondents and that there was no evidence that the appellant set in motion the machinery for the arrest/detention of the respondents, the prima-facie evidence in the affidavit in support of the application of the respondents, suffices in view of its being uncontroverted, as stated above. Of paramount importance however is the law that in an action for unlawful arrest and detention in breach of a party’s constitutional right of freedom, the onus is on the defendant to prove that the arrest was on reasonable grounds. See C.O.P., Ondo State v. Obolo (1989) 5 NWLR (Pt. 120) 130 at 137-138.
The tenor of learned Counsel for the appellant’s argument constitute no counter-evidence. Rather they are mere speculations when he submitted that the only deduction from the evidence of the respondents in their affidavit, even if it was not clear enough is that the appellant reported Frank Olima to the police and wanted him and him alone to be arrested and possibly detained for investigation/prosecution and that if the police on their own arrested and detained the respondents, that that does not make the appellant liable.
A defendant or respondent who has every opportunity to counter the evidence of the opposite party in a suit against him, has no right to speculate on facts which he ought to have countered by sworn evidence – in this case, by a counter-affidavit and expect the court to accept and determine the case on them.
There was nothing before the court to enable it see the respondents’ defence. The reference by counsel for the appellant in paragraphs 4.07 and 4.08 of his brief to facts and counter-affidavit, which were never before the court below and did not constitute any part of the ruling appealed against, is deceitful and of no consequence. It ought to be struck out or entirely discountenanced. For, it is the law that an appeal is a complaint against the decision appealed against. If it is not, it is incompetent.
The concluding submission that in the circumstances of the foregoing points raised by appellant’s counsel, referred to above, that there was no cause of action against the appellants is based on faulty premises. It is overruled.
The principles in the case of M & K v. Apena (1969) NMLR cited by the appellant without sufficient particulars is reported as Mandilas & Karaberis Ltd. v. Apena in (1969) 1 NMLR p. 199. The appellant rely thereon but it does not support the case of the appellant. That case is distinguishable from this. In that case, the defendants filed a defence and averred in a general traverse that “save as is hereby specifically admitted the defendants deny each and every allegation in the statement of claim …” The defence went further to lead evidence in court. The Supreme Court held that the general traverse sufficiently denied the averment in the statement of claim for 600 pounds damages for false imprisonment and that the trial Judge was in error in thinking that the defendant had not denied the plaintiff’s allegation of false imprisonment.
In the present case however, there was no defence/counter affidavit filed countering the evidence of the respondents in their affidavit.
Issue No.2 is also determined against the appellant and the corresponding grounds of appeal are also dismissed.
In conclusion, it is adjudged that this appeal lacks merit as all the grounds of appeal fail. The appeal is dismissed. The ruling of Kolo, J., delivered on 15th January, 1997, is hereby affirmed. There will be N10,000.00 costs in favour of the respondents, to be paid by the appellant.
Other Citations: (2005)LCN/1798(CA)
