_{LEGALPEDIA ELECTRONIC CITATION: LER[2019] ​CA/L/976/2015}

AREAS OF LAW: AGENCY, APPEAL, COURT, DAMAGES, FUNDAMENTAL RIGHT, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES

SUMMARY OF FACTS

The 1^st Respondent took out an Originating Summons brought pursuant to Section 34(1) of the Constitution of the Federal Republic of Nigeria, 1999(as amended) and Article 5 of African Charter of Human People’s Right, 1981 against Fidelity Bank, the Appellant herein, in the High Court of Lagos State. The 1^stRespondent/Applicant sought a declaration that the beating and physical assault of the Applicant by a Mobile Police officer under the command of the 2nd Respondent attached to the Alaba branch of the 1st Respondent Bank on the 23rd day of April, 2013 is unconstitutional and a violation of the fundamental right to dignity of his person, and an order directing the Respondents to pay the sum of N3million as compensation and damages to the Applicant for breach of his fundamental right to dignity of human person by way of beating and physical assault. The Appellant as 1^st Defendant filed a Counter Affidavit and written address and consequently filed a Notice of Preliminary Objection. The trial court in its ruling, granted the 1^st Respondent’s application and awarded the sum of N2m (Two Million Naira) as damages and cost for the proceedings at N20, 000(Twenty Thousand Naira). The Appellant- Bank, being dissatisfied with the ruling filed the instant appeal on grounds that the learned trial Judge erred in Law when he came to the conclusion that by virtue of Section 18 of the Police Act; the Mobile Police Officer involved in the suit is an agent of the Appellant and as such the Appellant is exclusively liable for the Infringement of the 1st Respondent’s right to dignity by the Mobile Police under ‘the command of the 2nd Respondent, that the learned trial Judge erred in law by not calling oral evidence to resolve the conflicts apparent on the face of the affidavit evidence presented by both sides in this matter among others.

HELD

Appeal Dismissed

ISSUES FOR DETERMINATION

• Whether the learned trial judge erred in law when he held that the Appellant was exclusively liable for any act carried out by a Police Officer in the cause of his duties”.

 

• Whether the Learned Trial Judge erred in law when he failed to call Oral evidence to resolve apparent conflicts in the affidavits relied on by both parties before the lower court.

 

• Whether the Learned trial Judge erred in law to have awarded the sum of N2,000,000.00 as compensation and damages against the Appellant.

RATIONES

AGENT – DEFINITION OF AN AGENT

“An agent has been described as “One who is authorized to act for or in place of another”.  See: Black’s Law Dictionary, 9^TH edition, page 72.

The Supreme Court in its decision in Bamigboye V. Unilorin & Anor (1999) 10 NWLR (Pt 622) 290, per ONU, JSC, while adopting the Black’s Law Dictionary’s (edition not stated) definition of an agent, held that an agent is “one authorized to transact all business of principal, all of principal business of some particular kind, or all business of some particular place, etc”. See: also Osigwe V PSPLS Mgt Consortium Ltd & Ors (2009) 3 NWLR (Pt 1128) 378”. PER G.O.KOLAWOLE, J.C.A

ACT OF AN AGENT – WHETHER THE ACT OF AN AGENT BINDS THE PRINCIPAL IN ALL CASES

“It is important to note also, that an act of an agent normally binds the principal rather than the agent himself unless it is established that the Agent acted outside the scope of the principal’s instructions and was on its own frolic”. PER G.O.KOLAWOLE, J.C.A

AGENCY RELATIONSHIP – NATURE AND CREATION OF AGENCY RELATIONSHIP

“It is apposite to state that Agency relationship also creates a fiduciary obligation either expressly, impliedly or by operation of law.  It is the law,  that the status of a party under an agency relationship is often largely determined, in the absence of any express agreement, by the intention of the parties involved: See: Cotena Int’l Ltd V Churchgate Nig Ltd & Anor (2010) 18 NWLR (Pt 1225) 346. Agency relationships may be impliedly created by reasonable deductions that could be made from the conduct of both parties in relation to the transactions involved”. PER G.O.KOLAWOLE, J.C.A

SUPERNUMERARY POLICE OFFICERS – APPOINTMENT OF SUPERNUMERARY POLICE OFFICERS FOR THE PROTECTION OF PROPERTY

“My reason, being that a cursory look at the provision of Section 18 Police Act, shows that it bothers on the “Appointment of supernumerary police officers for the protection of property” owned or controlled by any person interested.  The section 18 of the Act provides thus:

(1) Any person (including any government department) who desires to avail himself of the services of one or more police officers for the protection of property owned or controlled by him may make application therefore to the Inspector-General, stating the nature and situation of the property in question and giving such other particulars as the Inspector-General may require.

(2)  On an application under the foregoing subsection the Inspector-General may, with the approval of the President direct the appropriate authority to appoint as supernumerary police officers in the Force such number of persons as the Inspector-General thinks requisite for the protection of the property to which the application relates.

(3) Every supernumerary police officer appointed under this

              Section—

(a)        shall be appointed in respect of the area of the police province or, where there is no police province, the police district or police division in which the property which he is to protect is situated;

(b)        shall be employed exclusively on duties connected with the protection of that property;

(c)        shall, in the police area in respect of which he is appointed and in any police area adjacent thereto, but not elsewhere, have the powers, privileges and immunities of a police officer; and

(d)        subject to the restrictions impose by paragraphs (b) and (c) of this subsection and to the  provisions of section 22 of this Act, shall be a member of the Force for all purposes and shall accordingly be subject to the provisions of this Act and in particular the provisions thereof relating to discipline.

(4)        Where any supernumerary police officer is appointed under this section, the person availing himself of the services of that officer shall pay to the Accountant –General

(a)        on the enlistment of the officer, the full cost of the officer’s uniform; and 

(b)        quarterly in advance, a sum equal to the aggregate of the amount of the officer’s pay for the quarter   in question and such additional amounts as the Inspector-General may direct to be   paid in respect of the maintenance of the officer during that quarter.

and any sum payable to the Accountant-General under this subsection which is not duly paid may be recovered in a summary manner before a magistrate on the complaint of any superior police officer.

Provided that this subsection shall not apply in the case of an appointment made on the application of a department of the Government of the Federation. (Underline is mine for emphasis)

(5)        Where the person availing himself of the services of any supernumerary police officer appointed under this section desires the services of that officer to be discontinued, he must give not less than two months’ notice in writing to that effect, in the case of an officer appointed in respect of a police area within that part of Lagos State formerly known as the Federal territory, to the inspector-General or, in the case of an officer appointed in respect of a police area within a State; and on the expiration of such notice the services of the supernumerary police officer in question shall be withdrawn. (Underlined for emphasis)

The wordings of the provisions of the said section 18 of the Police Act, in my respectful opinion, seem clear and unambiguous and it is meant to be an “appointment to protect property” of any interested person. The wording should be given its plain and ordinary meaning.  See: Nnoye V Anyichie & Ors (2005) 2 NWLR (Pt 910) 623 and PDP V INEC (2014) 17 NWLR (Pt 1437) 525.” PER G.O.KOLAWOLE, J.C.A

AGENCY RELATIONSHIP – LIABILITY OF A PRINCIPAL TO ACTS OF AN AGENT

“I am clear in my view that, the “appointment” of the police officers is optional, open to any person so interested, to which the Appellant had indicated its desire and had actually engaged the service of the police officer, who had, in the course of protecting the Appellant’s property, infringed upon the fundamental rights to human dignity of the 1st Respondent. It is my humble opinion that, there exists a fiduciary relationship created between them, in which the policeman as the agent may act on behalf of the Appellant-Bank as the principal and who is then bound by, and it is vicariously liable for the words or actions of the policeman– agent of the Appellant, See: Cotena Int’l Ltd V Churchgate Nig Ltd & Anor, supra. PER G.O.KOLAWOLE, J.C.A

LIABILITY OF A PRINCIPAL – WHETHER THE LIABILITY OF A PRINCIPAL CAN BE EXTINGUISHED MERELY ON THE EXCUSE THAT THE ACT BEING COMPLAINED OF IS THAT OF AN AGENT

“It is trite and a settled proposition in law often expressed in the age-long Latin maxim that: “quit facit per alium facit per se” or more explicitly “Qui per alium facit per seipsam facere videtur” which denotes that, whoever acts through the deeds of another, is deemed in law to have performed the deed himself. I am of the view that such liability cannot be extinguished merely on the excuse that the act being complained of is that of another. See:  Leventis Tech. Ltd V Petrojessica (1999) 6 NWLR (Pt 605) 45.” PER G.O.KOLAWOLE, J.C.A

ENCORCEMENT OF FUNDAMENTAL RIGHT – PROCEDURE FOR COMMENCEMENT OF ENFORCEMENT OF FUNDAMENTAL RIGHT

“The law puts in place, a specialized procedure to seek redress with regard to any alleged violation of the fundamental rights of any person.  The process of enforcement of the rights is to be commenced by an application made to the court, either by Motion on Notice or by Originating Summons (like in the instant action) for redress, and an application as in this instance, is to be heard on affidavits depositions and a written address in support of the application and the affidavits. See: Jack V Univ of Agric, Makurdi (2004) 5 NWLR (Pt. 865) S.C. 208 @ 227”. PER G.O.KOLAWOLE, J.C.A

FUNDAMENTAL RIGHTS PROCEEDINGS – TYPES OF AFFIDAVIT THAT MAY BE FILED BY PARTIES IN FUNDAMENTAL RIGHTS PROCEEDINGS

“The Rules, for this purpose, sets out dearly, the types of affidavit that may be filed by parties in fundamental Rights proceedings, to wit: the supporting Affidavit, which must set out the facts relied on by the applicant and must accompany the application; then the counter affidavit, filed by the Respondent(s) intending to oppose the application of the Applicant; the Applicant may also file a further affidavit together with the reply on points of law, and any other affidavits must also be accompanied with a written address. See: Order II of the Fundamental Rights (Enforcement Procedure) Rules, 2009”. PER G.O.KOLAWOLE, J.C.A

FUNDAMENTAL RIGHTS PROCEEDINGS – MODE OF HEARING FUNDAMENTAL RIGHTS PROCEEDINGS

“It should be noted that the thread that runs through every fundamental rights proceedings, is that it is basically to be heard and decided on affidavit evidence. See: IGP & Ors V Eze (2017) LPELR-42923(CA) because, it is to be expeditiously disposed of in line with the letters and spirit of the Rules made pursuant to Section 46 (3) of the Constitution of Federal Republic of Nigeria, supra”. PER G.O.KOLAWOLE, J.C.A

FUNDAMENTAL RIGHTS PROCEEDINGS – WHETHER FUNDAMENTAL RIGHTS PROCEEDINGS CAN BE HEARD ON ORAL EVIDENCE

“The Supreme Court stated the law emphatically in Jack V University Of Agric, Makurdi, supra, that no oral evidence is to be called in fundamental rights proceedings. The application is heard on the affidavit in support of the application and the affidavits which every other parties to the application, proposes to use at the hearing of the application. PER G.O.KOLAWOLE, J.C.A

FUNDAMENTAL RIGHTS PROCEEDINGS – NATURE OF EVIDENCE IN FUNDAMENTAL RIGHTS PROCEEDINGS

“The apex court emphasized that in any fundamental Right proceedings, the affidavits constitute the evidence before the court which the court must evaluate to arrive at its decision. See: Jack V Univ. Of Agric, Makurdi, supra, and Rumugu Air & Space Nig Ltd V FAAN & Anor (2016) LPELR – 41506 (CA)”. PER G.O.KOLAWOLE, J.C.A

FUNDAMENTAL RIGHTS ENFORCEMENT PROCEEDINGS – RATIONALE FOR HEARING FUNDAMENTAL RIGHTS ENFORCEMENT PROCEEDINGS ON AFFIDAVIT

“The law obviously, is that matters of fundamental rights enforcement proceedings are to be heard on affidavits simplicita, and the apex court justifies this reasoning in Akunnia V Ag Anambra State (1977) LPELR 394 (SC), per Idigbe, JSC in the following words:

“There is no doubt that in cases of this nature relating to the Fundamental Rights of the citizens, it is very desirable that the matter be dealt with expeditiously and, where possible, procedures which by  their nature are cumbersome and prone to delay should be avoided. This is the raison d’etre for the special treatment given to the subject of Fundamental Rights and enforcement thereof in the constitution”.

• PER G.O.KOLAWOLE, J.C.A

AFFIDAVIT EVIDENCE – INSTANCES WHERE THE COURT WILL CALL FOR ORAL EVIDENCE TO RECONCILE CONFLICT IN AFFIDAVIT

“Even though it is well established in law, that oral evidence ought be adduced where affidavits filed before court are irreconcilably contradictory by examining and cross examining the deponents; see: Falobi V Falobi (1976) 9-10 SC 1, Mbadugha V Nwosu (1993) NWLR (pt 315) 110. Mark & Anor V Eke (2004) 1 SC (Pt II) pg 1, Mabanije V Otto (2016) LPELR-26058(SC). Courts often exercise the discretion to call for oral evidence only in circumstances where the conflicts in the affidavits cannot be otherwise reconciled. However, in the instant appeal, this court is guided by the statement of the law by the Supreme Court in its decision in Osita Nwosu V Imo State Environmental Sanitation Authurity & Ors (1990) All NLR 379. Per Nnaemeka – Agu, JSC, wherein His Lordship expressed the view that:

“But I believe that it is not only by calling oral evidence that such authentic documentary evidence which supports one of the affidavits in conflict with another. That document is capable of tilting the balance in favour of the affidavit which agrees with it”. See also: Elegbu V First African Trust Bank Ltd (1992) I NWLR (Pt 220) 699 @ 720.

• PER G.O.KOLAWOLE, J.C.A

EXERCISE OF DISCRETION – INSTANCES WHERE AN APPELLATE COURT WILL INTERFERE WITH THE EXERCISE OF DISCRETION BY A TRIAL COURT ON THE AWARD OF DAMAGES

“The Court of Appeal will seldom interfere with the exercise of discretionary power in this regard, unless it shown that the lower court has failed to apply the recognized judicial principles for the award of damages in such instance”. PER G.O.KOLAWOLE, J.C.A

STATUTES REFERRED TO:

Constitution of Federal Republic of Nigeria, 1999 (as amended)

Evidence Act, 2011

Fundamental Rights (Enforcement Procedure) Rules, 2009

Police Act