Legalpedia Citation: (2024-02) Legalpedia 74198 (CA)

In the Court of Appeal

Holden At Kano

Thu Feb 15, 2024

Suit Number: CA/K/247/2022

CORAM

Ugochukwu Anthony Ogakwu Justice, Court of Appeal

Boloukuromo Moses Ugo Justice, Court of Appeal

Usman Alhaji Musale Justice, Court of Appeal

PARTIES

1. ISIAKA ZUBAIRU ALIAGAN (Carrying On Business Under The Name And Style Of Nigerian International)

APPELLANTS

1. KANO STATE ROAD AND TRAFFIC MANAGEMENT AGENCY

2.THE ATTORNEY GENERAL, KANO STATE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, EVIDENCE, PRACTICE AND PROCEDURE, TORT

SUMMARY OF FACTS

The Appellant parked his truck in Kofar-Wambai motor park in Kano and travelled to Ilorin without returning for the car from 2018 to 2021. Upon his return, he was told that his vehicle had been confiscated by 1st Respondent’s officials. Upon investigation, he discovered that the vehicle was actually confiscated and was in the possession of the 1st Respondent who had by then converted it to its own use and even painted it with its own official colours. When he caused his solicitors to request the release of the vehicle and for respondents to pay him damages for its detention, 1st Respondent denied having knowledge of the vehicle and rather requested for documents to establish his claims. Upon being presented with his title documents, 1st Respondent admitted taking possession of the vehicle and claimed to have vested it with the Government of Kano State, hence his application.

The Respondents the issue of abandonment of the vehicle in Kofar Wambai motor park only came to 1st respondent’s knowledge in September 2017 when it received a complaint that the truck had been constituting nuisance and a source of concern to users of the park and even its neighborhood. It was on the strength of that complaint 1st respondent, they said, towed it to its premises and, after making fruitless efforts to identify its owner, proceeded to repair it with ₦6, 817,000.00 and put it into public use. They ended by claiming a refund of that amount from appellant.

In its ruling on the application, the Kano State High Court had very strong words in condemning the manner 1st Respondent confiscated appellant’s truck and ordered its release. It, however, refused to award the damages and public apology claimed by appellant

Aggrieved by the decision, the Appellant made the instant appeal.

HELD

Appeal dismissed

ISSUES

Whether the lower Court was right in so refusing to grant relief no. 4, 5, 6, 7 and 8 earlier reproduced?

RATIONES DECIDENDI

DAMAGES – WHETHER THE JURISDICTION OF THE HIGH COURT EXTENDS TO AWARD OF COMPENSATION OR DAMAGES FOR INFRINGEMENT OF THE PROVISIONS RELATING TO FUNDAMENTAL RIGHT

I am in complete agreement with Mr. Tijjani Ibrahim for Respondents that appellant’s counsel not only misapprehended the ‘special jurisdiction’ conferred on the High Courts by section 46 (2) of the 1999 Constitution of this country stating that “The High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State or any right to which the person who makes the application may be entitled to under this Chapter,” learned counsel also misconceived the ambit and purport of Section 35 (6) of the same Constitution relied on by him stating that “Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person…” None of these two provisions provide for award of compensation for infringement of right to, or detention of, moveable property, let alone provide for award of damages denominated or expressed as general, special and exemplary damages as was sought by appellant. Those expressions – general, special and exemplary damages – belong to civil actions for tort brought pursuant to the Court’s general jurisdiction and not in an application under the special jurisdiction conferred on the High Courts by Section 46 of the 1999 Constitution. I am fortified in this position by the decision of the Supreme Court in the celebrated case of Chief (Mrs.) Ransome-Kuti v. Attorney General of the Federation & Ors (1985) LPELR-2940 (SC); (2001) FWLR (PT 80) 1637; (1985) NWLR (Pt. 6) 211 (the case commonly known as the ‘unknown soldier’ case). There, their Lordships (Eso, JSC, in lead judgment, with his learned brothers, Oputa and Karibi-Whyte, JJ.S.C., supporting him in their own judgments) took time to explain the true purport of the present Section 46 of the Chapter IV of the 1999 Constitution, which used to be Section 32 of the 1963 Constitution, conferring special jurisdiction on the High Court to enforce fundamental rights. First, Eso, JSC, said at p. 21, LPELR, thus:

“And, after all said and done, nowhere does the Constitution [1963] provide for the award of damages, as the plaintiff now claim, for the infringement of the provisions relating to fundamental rights. It is the common law that provides for the award of damages to the plaintiff when a person is assaulted or battered…”

His brother, Oputa, J.S.C., adding his voice to the issue, said at p.95 LPELR that:

“The right enforceable under Section 32(2) of the 1963 Constitution [now Section 46 of the 1999 Constitution] must be a right conferred by one of the Sections of Chapter 3. None of the sections deal with the issue of damages. Damages do not form an independent right by themselves. They flow out of and are merely consequential to the breach of known civil rights. The only sections of Chapter 3 [now Chapter IV] of the 1963 Constitution which prescribe payment of any monetary awards is Section 31(1)(a) decreeing the ‘payment of adequate compensation’ for property compulsorily acquired. The appellants cannot, therefore, found their right to damages on Section 32 which merely conferred on the High Court special jurisdiction to deal with contraventions of any of the provisions of this Chapter – Chapter 3.”

Karibi-Whyte, JSC, also had this to say on the same issue at p. 68, LPELR:

“In my opinion the purpose of Chapter III [now Chapter IV] is to preserve the civil rights of the citizen within the limits and scope allowed by law. The rights conferred on all the citizens though described as fundamental do not, as was being suggested by Mr. Braithwaite, override all laws. The right is fundamental in the sense that it inures in man as homo sapiens, as a member of the political community, by virtue of his association in it. …

It may well be that the facts relied upon for an action may support an action under Section 32 for the enforcement of a right under Section 19(1) but the negative formulation of the right and the redress prescribed under S.32(2) which is the making of ‘such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any rights to which the person who makes the application may be entitled under the Chapter,’ makes all the difference.” – Per B. M. Ugo, JCA

DAMAGES – WHETHER DAMAGES CAN BE AWARDED IN A FUNDAMENTAL RIGHTS ACTION FOR ENFORCEMENT OF RIGHT TO MOVEABLE PROPERTY

I must not fail to point out that I never said anywhere in Okorocha v. I.G.P. & Ors. (2021) LPELR-55042 (CA) P20-22, as is now being attributed to me by appellant’s counsel, that compensation, let alone damages with its different types as known in the law of tort, can be awarded in a fundamental rights action for enforcement of right to moveable property. What I said in Okorocha’s case was that the 1999 Constitution of this country provides for payment of compensation only in cases of breach of right to personal liberty under Section 35(6) and for compulsory acquisition of immoveable property under Section 44 of the same Constitution; that no similar provision is made for other fundamental rights breaches, the Court’s intervention in such other cases being limited only to making necessary orders to stop the breach, as eloquently stated by their Lordships, particularly Karibi-Whyte, JSC, in Chief (Mrs.) Ransome-Kuti v. Attorney General of the Federation & Ors supra. – Per B. M. Ugo, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap.10 Laws of the Federation of Nigeria, 2004
3. Court of Appeal Act

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