CORAM

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PARTIES

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ECONOMIC AND FINANCIAL CRIMES COMMISSION APPELLANTS

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1. MR. EJENAVI JONAH OYUBU2. KISHALOM NIGERIA LIMITED3. BAWA USMAN KALTUNGO RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Respondents were arrested and kept in the custody of the 1st Appellant from 2/8/16 till when the judgment was delivered on 31/8/16, consequent upon which the Respondents brought an action in the Federal High Court, Lagos Division, for the enforcement of their Fundamental Rights that was alleged to have been infringed by the Appellants. The Appellants raised a preliminary objection at the lower Court, and same was dismissed. The trial court in delivering its judgment in favour of the Respondent, held that the 1st Respondent haven been in the custody of the 1st Appellant for 14 days without trial or been brought to court, amounts to a clear violation of the fundamental right of the 1st Respondent and it awarded the sum of N5, 000,000, as damages and further ordered that an apology be made to the Respondents by publishing same in a National Daily. Dissatisfied with the trial court’s judgment, the Appellants have lodged the instant appeal contending that the inability of the Respondents to meet the bail condition should not be counted against the Appellants.

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HELD

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Appeal Succeeds In Part

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ISSUES

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Whether in the circumstances of this case, the learned trial Judge was right in holding that the appellants breached the fundamental rights of the 1st respondent as provided for under sections 34(a) and (b), 35(1) and 41(1) of the 1999 constitution of the Federal Republic of Nigeria (as amended) Whether the award of N5,000,000.00 as damages in favour of the 1st Respondent and an order for the Appellants to publicly apologize to the 1st respondent were not excessive and arbitrary.

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RATIONES DECIDENDI

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FUNDAMENTAL RIGHT, CONSTITUTIONAL LAW INFRINGMENT OF FUNDAMENTAL RIGHT – CONSTITUTIONAL PROVISION ON WHAT AMOUNTS TO A VIOLATION OF A PERSON’S FUNDAMENTAL RIGHT

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“The Constitution provides that the right of a person is infringed or violated if he is kept in the custody of any authority for more than 24 or 48 hours haven been suspected of committing an offence. A court of law will see such as an infringement of the right of the detained person as a violation of the right of such a person. See Eddi vs. COP (2006) 4 FWLR (Pt.335) 5960; A.G. Lagos State vs. Keita (2016) LPELR- 40163”. –

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FINDING OF FACTS BY THE TRIAL COURT – GROUND(S) ON WHICH AN APPELLATE COURT WOULD INTERFERE WITH THE FINDING OF FACTS BY THE TRIAL COURT

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“In dealing with this issue, the point must be made that as an appellate court, I am not to interfere with the finding of facts by the lower court except if such finding is perverse which will amount to a miscarriage of justice. See: Chief Salami Olatunde &Anor vs. Salami Afolabi Abidogun NSCQLR vol. 8 (2001) 326; Okedion & Ors vs. FAAN @ Ors(2007) LPELR-8687 (CA); Maccido vs. Friday (2014)LPELR -22320 (CA). In Omotayo vs. Cooperative Supply Association (2010) 5-7 SC (pt 11) 60, the Supreme Court held:
“In the case of Ngillari vs. NICON (1998) 8 NWLR(Pt.560) 1 @ 20 21; (1998) 6 SCNL J. 16 –per Onu, JSC, it was held that where a court of trial which saw and heard the witnesses, has come to specific findings of fact on the evidence and issues before it (as in the instant case leading to this appeal), an Appellate Court which had no similar opportunity, should refrain from coming to a different finding or findings, unless it can show that the conclusion or conclusions, could not follow or flow from the evidence before it. It referred, to the cases of Odofin vs. Ayoola, Ebba v. Ogodo and Ajayi’s case (All supra). As regards the position of an Appellate Court, it has been stated and restated in a line of decided authorities that it is in as much a good position, as the trial court to deal with facts See the cases of Fabamiyi & Ors vs. Obaje & ors.(1968) (1) NMLR.242 @, 247, Woluchem & ors.vs. Chief Gudi & ors. (supra) also reported in (1981) 12 NSCC 214,Ogbechie & ors.vs. Onochie & ors(1986) 2 NWLR(Pt.22) 484 just to mention a few. In my respectful view, the learned trial Judge, clearly comprehended the entire case from the abundant evidence before him and came to the conclusions which are supported by the said evidence. See the case of Akinloye vs. Eyiyola (supra).” –

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PROOF OF INFRINGEMENT OF FUNDAMENTAL RIGHT – ON WHO LIES THE BURDEN OF PROVING AN INFRINGEMENT OF FUNDAMENTAL RIGHT

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In a case of this sought on breach or infringement of Fundamental right, once there is evidence that the victim was detained, the burden now moves to the police or the detaining authority to show the justification of the arrest or detention. The first burden in my view is on the Applicants (Respondents) to show that he was arrested and detained by the Respondents (Appellants)beyond the time frame stated by law. It is only when the Applicant has discharged this duty as required by law to show he was detained, that the Respondent will then show the justification not only for the arrest but for keeping him more than the 24 hours or 48 hours as the case may be. See Ohanedun & Anor vs C.O.P. (Imo State) &Ors (2015) LPELR-2431 (CA); Groner & Anor vs EFCC & Anor (2014) LPELR-24466 (CA). –

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ADMITTED FACTS – LAW ON ADMITTED FACTS

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“The law on admitted facts is clear. Such facts need no further proof as the court will treat them as unchallenged evidence. See Din vs. African Newspaper of Nig Ltd (1990) 3 NWLR (Pt.139) 392; Oguanuhu & Ors vs. Chiegboka (2013) 6 NWLR (Pt.1351) 588; Alahassan & Anor vs. Ishaku & Ors (2016) LPELR-40083(SC). –

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ARREST AND DETENTION – BASIS FOR THE JUSTIFICATION OF AN ARREST AND DETENTION

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“An arrest and detention can only be justified if it is done within the confines of the law. In other words, the arrest and detention must conform to the law. In this respect, the constitution of Nigeria 1999 dealing with Fundamental Human Right becomes the main focus. This is because any law that is contrary to the constitution will be declared null and void to the extent of the conflict, contradiction, and inconsistency. See INEC vs. Musa (2003) 1 SC (Pt.1) 106; Marwa & Ors vs. Nyako & Ors (2012) LPELR-7837 (SC). –

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RIGHT TO LIBERTY – CONSTITUTIONALLY GUARANTEED RIGHT TO LIBERTY OF EVERY NIGERIAN

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“Every human being has inherent rights that need to be protected. The circumstance of a person’s birth or education does not affect the fundamental right of any persons. These are rights that a person is born with as entrenched in the constitution that is, Chapter 4 covering Sections 33-46. No person, institution or personality has the right to violate the right of another and get away with it. Once there is a violation, the victim can claim damages. The relevant Section in this appeal is Section 35 (1) (111) of the 1999 Constitution. The section provides that the right to human dignity can be legitimately tempered with if this is done with the mind of bringing the person before a court or in carrying a court order. Any arrest and detention outside the provisions of the law expose the person arresting or detaining to an action for violation of the fundamental right. See Usman vs. EFCC (2017) LPELR-43196 (CA); Okeke &Anor vs Iheazie & Ors (2018)LPELR-45017. In SCC (Nig.) Ltd &Anor vs. Geroge &Anor (2019) LPELR- 46963 (CA),Adah, JCA at pages 26-28 held:
“Under our Constitution, the liberty of every Nigerian is guaranteed. Section 35 (1) of the 1999 Constitution of Nigeria provides as follows:-
“35 (1) every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law –
(a) in the execution of the sentence or order of a Court in respect of a criminal offence of which he has been found guilty;
(b) by reason of his failure to comply with the order of a Court or in order to secure the fulfillment of any obligation imposed upon him by law;
(c) for the purpose of bringing him before a Court in the execution of the order of a Court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence;
(d) in the case of a person who has not attained the age of eighteen years for the purpose of his education or welfare;
(e) in the case of persons  suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drug or alcohol or vagrant, for the purpose of their care or treatment or the protection of the community; or
(f) for the purpose of preventing the unlawful entry of any person into Nigeria or effecting the expulsion, extradition or other lawful removals from Nigeria of any person or the taking of proceedings relating thereto.
Provided that a person who is charged with an offence and who has been detained in lawful custody awaiting trial shall not continue to be kept in such detention for a period longer than the maximum period of imprisonment prescribed for the offence.”
There is from the constitutional provision no room for any arbitrary arrest or detention of any person in Nigeria. There must be a prevalence of any of the excepted instances therein for any person to be arrested. Anything short of that is clearly in breach of the right of the individual to liberty. In the instant case, the appellants had no justifiable reason to cause the arrest and detention of the 1st respondent on that day.
When he was arrested on 30/11/2014, he was not released until 3rd December, 2014, which was excess of what is tolerated by the Constitution. The right of the 1st respondent, it is proven was rudely breached and he is entitled to enforce his right under Section 46 of the 1999 Constitution.” –

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ARREST OR DETENTION OF AN ACCUSED PERSON- TIME FRAME FOR CHARGING A LAWFULLY ARRESTED ACCUSED PERSON TO COURT

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“Even when a person is arrested or detained within the scope of the law, he must be brought before a court for prosecution and this must be done within the time frame stated by law. This is a 24 hours time frame or 48 hours depending on how close a court is to the location of the scene of crime or place of arrest. Apart from the Constitution, the Administration of Criminal Justice Act, 2015 makes provision for such a position’

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ARREST AND DETENTION – PROCEDURE FOR EFFECTING AN ARREST AND DETENTION OF A PERSON ALLEGED TO HAVE COMMITTED AN OFFENCE

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“The law makes provision for law enforcement agents to arrest and detain a person who is alleged to have committed an offence. In doing this, the procedure is to do a proper investigation and if it shows that a person has a hand in the crime then he can be arrested and brought to court within 24 hours or maximum of 48 hours. It is inappropriate for law enforcement agents to arrest a person and while in their detention, they now fish around for evidence to prosecute him. The laziest and ready way the law enforcement agents get evidence to prosecute a person in most cases is by the confessional statement. Our law enforcement agents should think of more genuine ways of getting evidence to prosecute a person’s alleged to have committed any offence. After investigation, the law enforcement agent would invite the suspect and then take him to court within 24 hours and not take reverse the order which is so popular today.

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ADMINISTRATIVE BAIL – WHETHER THE POWER TO GRANT ADMINISTRATIVE BAIL IS A SUBSTITUTE FOR BRINGING AN ACCUSED PERSON BEFORE A COURT

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“The power to give administrative bail is not a substitute for bringing the person before a court of law within the time frame. The law did not say that within the time frame the suspect should either be brought to court or be granted bail”.

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CONSTITUTIONAL PROVISION – PURPOSE OF THE CONSTITUTIONAL PROVISION

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“The purpose of the Constitutional provision is to forestall the misuse of the power of arrest and detention by law enforcement agencies’.

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SPECIAL DAMAGES – PRINCIPLES GUIDING AN AWARD OF SPECIAL DAMAGES

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“On issues such as this, there are three major damages which a court considers. These are special, general and exemplary damages. These three has different considerations and consequences. For a court to grant special damages, this must be specifically pleaded and proved. In ISC Services Ltd vs. Genak Continental Ltd &Anor (2006) 6 NWLR (Pt.922) 481, this court held:
“In a claim of damages, the onus of proving such damages is on the claimant, and he can only discharge this burden by showing credible evidence that he is indeed entitled to such damages claimed.
In the case of Garba v. Kur (supra) at page 295, this Court set out the guiding principle governing the award of special damages in the following words:
“An award of special damages, unlike an award of general damages, is not based on the discretion of the trial Court, but on credible evidence adduced before the trial Court which strictly proves the plaintiff’s entitlement to the award …”
Similarly, in Obasuyi & Anor vs Business Ventures Ltd (200) 5 NWLR (Pt.658) 668, the Supreme Court per Iguh, JSC held:
“The rule with regard to the award of special damages is that the burden of proof is on anyone claiming it to prove strictly that he did suffer such special damages claimed. What is required is that the person claiming it should establish his entitlement to the special damages claimed by credible evidence of such a character as would establish that he, indeed, is entitled to an award under that head. See Oshinjinrin & Ors. vs. Elias & Ors(1970)1 All N.L.R. 153 @156, Odulaja vs. Haddad (1973)1 All N.L.R 191@196. Accordingly, where the precise amount of a particular item of damage is known or has become manifest before the trial, either because it has already occurred and has thus become crystallised or because it is measurable with complete and total accuracy, this exact loss must be pleaded as special damage and strictly proved. See Mayne& McGregor on Damages, 12th Edition, Article 973 @ pg. 815. As Bowen L. J. put it in Ratcliffe vs. Evans (1892)2 Q. B. 524 in relation to proof of special damages, as follows:-
“The character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be ……. proved. As much certainty and particularity must be insisted on ……in…..proof of damage as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.” –

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GENERAL DAMAGES – NATURE AND REQUIREMENT FOR AN AWARD OF GENERAL DAMAGES

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“General damages are however damages flowing naturally from what the Applicant suffered by the act of the Respondent. This is automatic damage awarded once there is proof of injury suffered by a person. General damages are therefore granted as compensation for what1st Respondent has suffered as a result of what the Appellants have done to him. He does not have to prove specifically what he has suffered. He does not need to show he suffer maltreatment from the Appellants before he can be awarded general damages. All that is needed here is to show that the 1st Respondent suffered a wrong; in this instance, he was unlawfully detained. In Elf Petroleum vs. Umah & Ors (2018) LPELR-43600 (SC) the apex court per Ogunbiyi, JSC at page 27-28 thus:
“It is pertinent to re-iterate herein that in the award of General Damages, a widespread power is given to the Court comparable to the exercise of discretion of the Court. It is enormous and therefore far-reaching and contrary to the contention held by the appellant herein. The measure of general damages is awarded to assuage such a loss, which flows naturally from the defendant’s act. It needs not to be specifically pleaded. It suffices if it is generally averred. They are presumed to be the direct and probable consequence of that complained of. Unlike special damages, it is generally incapable of exact calculation. See the following authorities of Federal Mortgage Finance Ltd vs. Hope Effiong Ekpo (2004) 2 NWLR (Pt. 865) 100 at 132, Dumez vs. Ogboli (1972), 2 SC 196 and Wasovs. Kalla (1978)3 SC 21.”
In Agu vs. General Oil Ltd (2015) LPELR-24613 (SC) Galadima, JSC at page 31-32 held:
“The basic object of an award of damages is to compensate the plaintiff for the loss of the damage of injury he has suffered. The guiding principle is restitution in integrum. The principle envisages that a party which has been damnified by the act which is called in question must be put in position in which he would have been if he had not suffered the wrong which he is now being compensated for. See NEPA vs. R. O. Alli & Anor (1992)10 SCNJ 34. Anambra State Environmental Sanitation Authority & Anor vs. Ekwenem (2009) 6-7 (Pt. II) SC 5”
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EXEMPLARY DAMAGES – PURPOSE OF AN AWARD OF EXEMPLARY DAMAGES

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“Exemplary damages are awarded to serve as an example to deter the person from further committing an offence and to deter others from committing an offence. This is awarded against an oppressive and arbitrary act of government officials to serve as a detriment to others. In Odiba vs.Azege (1998) 7 SC (Pt.1) 79, the supreme court held:
“In the case of Eliochin (Nig.) Ltd vs. Victor Mbadiwe (1986) 1 NWLR (Pt.14) 47 @ 65.Obaseki J.S.C., contributing to the lead judgment Held: “The primary object of an award of damages is to compensate the plaintiff for the harm done to him or a possible secondary object is to punish the defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which go by various names to wit: exemplary damages, punitive damages. Vindictive damages, even retributory damages and comes into play whenever the defendant’s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like”. The behavior of the appellant falls within the first category of cases listed by Lord Devlin in the case of Rookes vs. Barnard (1964) A. C. 1129, in which exemplary damages could be awarded. Lord Devlin held, in that case, that exemplary damages could be awarded against oppressive, arbitrary and unconstitutional action by servants of the government”.
This is common in fundamental rights cases. Exemplary damages are awarded to forestall people from taking advantage of others or the law and indeed using their power arbitrarily. –

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ASSESSMENT OF GENERAL DAMAGES – WHETHER THERE EXIST RULES FOR THE ASSESSMENT OF GENERAL DAMAGES

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‘’In deciding how to assess damages, this court in Nigeria Customs Services Board vs. Chukwunti (2016) LPELR-41479 (CA) held thus:
“The term general damages covers all losses which are not capable of exact qualification. It includes all non-financial loss. Items of general damages need not and should not be specifically pleaded, but some evidence of such damage is required. Heads of general damages are:
(a) pain and suffering
(b) loss of amenities
(c) loss of expectation of life
(d) future loss of earnings or earnings capacity and
(e) future expenses
Okuneye vs. Lagos City Council (1973)2 CCHCJ pg 38. There is indeed no fixed rule by which to assess general damages. The matter is therefore in the discretion of the Court to award a fair and reasonable compensation having regard to the circumstances of the particular loss. Okuneye vs. Lagos City Council (supra).” –

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CASES CITED

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None

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STATUTES REFERRED TO

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Administration of Criminal Justice Act, 2015|Constitution of Federal Republic of Nigeria 1999|Economic and Financial Crimes Commission (Establishment) Act 2004|

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