CORAM

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PARTIES

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OLIVER IWUNUNNE

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1. MORRIS EGBUCHULEM 2. INSPECTOR DANIEL OSUNBOR (OF ANTI POLITICAL THUGGREY UNIT NIGERIAPOLICE STATE COMMAND HEADQUARTERS, OWERRI)3. MRS. NGOZI AGBARA (WOMEN POLICE I.P.O)4. COMMISSIONER OF POLICE(IMO STATE POLICE COMMAND)

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Applicant filed a Fundamental Right Enforcement action at the Imo State High Court and sought a declaration that the arrest, detention and torture of the Applicant at the Nigeria Police, Imo State Command Headquarters at Owerri, from the 18th day of June to the 20th day of June, 2008, a period of three days, by the 2nd and 3rd Respondents at the behest and instigation of the 1st Respondent constitutes an infringement of the Applicants fundamental right against torture, inhuman and degrading treatment and his right to personal liberty protected by Sections 134 and 35 of the Constitution of the Federal Republic of Nigeria, 1999; a declaration that the use of the Police Coercive Powers and Criminal process by the 2nd and 3rd Respondents to intimidate the Applicant to prevent him from associating with and standing surety for Anselem Iwuoha and his wife, detained at Nigeria Police, Imo State Police command, Owerri, is a gross violation of the Police Act, Cap 359, Laws of the Federation and fundamental right of the Applicant as enshrined in Section 40 of the Constitution of the Federal Republic of Nigeria 1999, and N10,000,000.00 (Ten Million Naira), being damages for the violation of the Applicants fundamental rights, aforesaid. The Respondent/Appellant filed a counter affidavit. After hearing the case and considering the addresses of respective Counsel in the matter, the trial Court granted the reliefs sought by the Applicant. Aggrieved by the judgment of the trial court, the Appellant filed this appeal contending that the failure to comply with the provision to fix the case for hearing within 14 days of grant of the leave to file the motion on Notice, was a breach of the Order 2 Rule1 (2) of the fundamental Rights (Enforcement Procedure) Rules, 1979 and that robbed the trial Court of the jurisdiction to continue with the suit.

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HELD

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Appeal Dismissed

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ISSUES

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Whether, having regards to the Mandatory Provisions of Order 2 Rule 1 (2) of the Fundamental Rights Enforcement Procedure Rules, 1979, the application was competent before the Court. Whether a person on whose report the Police arrests another for established crime is liable for the breach of the arrestees right. Whether the damages awarded to the Applicant was not ludicrously and excessively high to warrant the Appellate Court to interfere with it.

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RATIONES DECIDENDI

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ORDER 2 RULE 1(2) OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES – APPLICABILITY OF THE PROVISION OF ORDER 2 RULE 1(2) OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES

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“Order 2 Rule 1 (2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 states:
The Motion or Summons must be entered for hearing within fourteen days after such leave has been granted.
The above provision, under the 1979 Rules, had enjoyed several interpretations of the superior Courts, to the effect that, Applicant in a fundamental right application, had a duty to pursue the case with dispatch and so, the motion or summons must be filed or entered for hearing within 14 days, after the grant of the motion exparte, granting leave to the applicant to apply to enforce his fundamental rights. The Courts have interpreted the phrase entered for hearing to mean or imply, filing the motion on Notice or Summons in Court. Of course, that is when the case is formally entered in Court (after the grant of leave) for the hearing or determination of the complaint by the trial Court. See the case of A. G. Federation v G. O. K. Ajayi (2000) 2 WRN 133 at 152, where this Court, per Aderemi JCA, held:
The practical meaning, in my view, is that the Notice or Process shall be filed in the Court within the time prescribed by the rule. Once that is done, the applicant, in my view, has complied with the provisions of the rule. The fixing of the application for hearing is the exclusive function of the officials of the Court and an applicant has no control over that.
See also the cases of Cunsin Nigeria Ltd & Anor vs IGP & Ors (2008) LPELR 4008 CA, and Ezeadukwa vs Maduka & Anor (1997) LPELR 8062 (CA), where this Court, while emphasizing the mandatoriness to file the motion on Notice or Summons within 14 days, said;
Failure, therefore, to comply with the clear words of Rule 1(2), i.e. entering the motion or summons for hearing, will render the leave already obtained worthless. In fact any procedure wherein the Court reacts to a motion or summons which is entered for hearing outside the 14 days period is a serious breach of the sub-rule, sufficient to render same a nullity. The same view was adopted . . . in Ogwuche & Ors vs Mba & Ors (1994) 4 NWLR (pt. 336) 75. It is, however, necessary to state that an applicant, whose 14 days period has run out, has not altogether lost the right to enforce the alleged violation of his fundamental right. The expiration of the 14 days period, in my view simply means that the ex-parte leave, earlier granted to the applicant, has expired by effluxion of time. (Per Achike JCA).
It is, completely, outside the scope of logic and sound legal reasoning, to say, suggest or imply that the 14 days, stipulated in Order 2 Rule 1 (2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979, for entering of Motion or Summons for hearing, relates to the fixing of the case by the trial judge for commencement of actual hearing of the suit. Once the Motion or Summons has been filed within the stipulated time, that is, within 14 days (after the grant of leave), the Applicant is deemed to have complied with the requirement of the law for the application to be heard by the Court, and the duty of fixing the case for hearing or commencement of hearing lies with the Court, not with the Applicant. In the case of Enukeme vs Mazi (2014) LPELR 23540 (CA) Appellant, just as in this appeal, had complained that the trial Court had failed to comply with Order 2 Rule, 1(2) of the Fundamental Rights (Enforcement procedure) Rules, 1979, because it commenced hearing of the motion on Notice, after 61 days of the grant of the leave to bring the application; that whatever the trial Court did was a nullity, by so doing. It was held:
In my opinion, it would be absurd to reject or nullify a judgement/proceeings, simply because it was not heard and determined within the time frame stipulated (7 days or 14 days) by law for the case to be fixed for hearing (granted Appellant were correct in his interpretation of that provision), since the essence of the shorter time frame for hearing the suit was to expedite action and give judgement speedily. That the case is finally heard or determined, at all, after some delay (which might even be caused by the adverse party) though beyond the anticipatory period, should, in my opinion be a relief and thing of joy, instead of a disqualification and offence. I therefore, hold that the learned trial Court was properly guided, when he held the process filed by the Respondent to be competent. . .the proceedings. . .could not be defeated, simply because the matter was fixed for hearing, 61 days after it was filed instead of 7days. . . Of course, the above case was fought under the 2009 Fundamental Right Enforcement Procedure Rules, not 1979 Rules; the 2009 Rules has no provision for exparte application for leave to bring an action, and rather requires the filing of motion on Notice or summons, straight away, and for the same to be fixed for hearing 7 days after the filing of the suit. (See Order ix Rule 1 of the Fundament Rights (Enforcement Procedure) Rules, 2009).”

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CRIME – WHETHER A PERSON WHO LODGES A COMPLAINT WITH A LAW ENFORCEMENT AGENCY AGAINST A CRIME IS LIABLE FOR ANY WRONG COMMITTED BY THE SAID AGENCY IN THE COURSE OF INVESTIGATING THE CRIME

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“The law is well defined on this, that every citizen has a right to make or lodge honest complaint with the Police or any law enforcement agency against any wrong doing or crime, committed by the accused/suspect and the person lodging the complaint is not liable for the wrong committed by the Police (law enforcement agency) in the course of handling the complaint, while exercising their (Police) independent decision/judgement in the handling of the complaint. See OSIL. vs Bologun (2012) LPELR 9218 CA; (2013) All FWLR (pt 677) 633; (2012) 38 WRW 143 which held:
any complaints 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 Fajenirokun vs Commercial Bank (Credia Lynbnnais) Nig Ltd (2009) 5 NWLR (pt. 1135) 558 at 600, it was held:
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 happens after such report is entirely the responsibility of the Police. The citizen cannot be held culpable for doing their duties, unless it is shown that it is done malafide.
In the case of Duru vs Nwangwu (2006) 5 SCNJ 394 at 402, the Supreme Court held:
It is settled law, that where an individual has lodged the facts of his complaint to the Police, as in this case, by way of petition, and the Police have there-upon, on their own proceeded to carry out arrest and detention, then the act of imprisonment is that of the Police. See also PGSS Ikachi vs Igbudu (2005) 12 NWLR (2005) 12 NWLR (pt. 940) 543 at 574.
Of course, there is a proviso to the above principle. Where the complaint was lodged, falsely, against the victim or the complainant procurred the Police to harass and attack the victim, for ulterior motives, or over a purely civil matter, with the intent of using the Police or law enforcement agency to settle private scores, the complainant cannot wash off his hands from the evil visited on the victim of the malicious complaints. The authorities on this are replete. See the case of OSIL. vs Balogun (supra), Ogbonna vs Ogbonna (2014) 23 WRN 48; (2014) LPELR- 22308 (CA); Agbakoba vs SSS (1994) 6 NWLR (pt 351) 475, Udeagha vs Nwogwugwu(2013) LPELR- 21819 CA.”

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AWARD OF GENERAL DAMAGES – GROUNDS ON WHICH AN APPELLATE COURT WOULD SUBSTITUTE AN AWARD OF GENERAL DAMAGES BY A TRIAL COURT

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“What constitutes commensurate general damages awardable by a Court in a case, does not require any opinion, consideration or sense of assessment/evaluation of the defendant and he is not competent to call the award names, that it is ludicrous or ridiculous. If he says the award is excessive, he has a duty to prove that allegation, He is not allowed to subject the exercise of discretion by the trial Court to mockery or ridicule. The law is trite, that award of general damages is based on the discretion of the trial Court, and an appellate Court is not permitted to substitute its feelings or discretion with that of the trial Court, as to the amount awardable, except it is proved that the trial Court did not observe the acceptable rules/principles for making the award, namely:
a) The trial Court acted on a wrong principle of law, and/or
b) The trial Court made an estimate of damages which is entirely erroneous that no reasonable tribunal would have made. See the case of Ogah & Anor vs Gidado & Ors (2013) LPELR 20298 CA; Williams vs Daily Times (1990) 1 NWLR (pt. 124) 1; Ifeanyi Chukwu Osondu Co. ltd vs Akhigbe (1999) 11 NWLR (pt. 625) 1; OSIL vs Balogun (2012) ALL FWLR (pt. 643) 1880 at 1906 1909.”

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EXERCISE OF DISCRETION – CIRCUMSTANCES WHERE AN APPELLATE COURT MAY INTERFERE WITH THE EXERCISE OF DISCRETION BY A TRIAL COURT

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“In the case of GTB Plc vs Fadco Industries Nig ltd & Anor (2013) LPELR 21411 CA, this Court relying on the Supreme Court case of Ifeanyi Chikwu Osondu Co. ltd vs Akhigbe (1999) 11 NWLR (pt. 625) 1, said:
An Appellate Court does not make it its business to interfere with general damages awarded by the trial Court, unless it is established that the trial judge acted, in the award of such damages, upon some wrong principles or that the amount awarded was so large or so small as to make it a completely erroneous assessment of the damages. Per Uwaifo JSC
The above principle is applicable in every and any situation of exercise of discretion by a Lower Court. Appellate Court can only interfere, where it is established that the Lower Court did not exercise its discretion properly, taking into consideration all the judicial procedures and the requirements of justice, thereof. GTB Plc vs Fadco Industries Nig ltd (Supra); S&D Construction ltd vs Ayoku (2011) 13 NWLR (pt. 1266) 487; NNPC vs WIFCO Nig. ltd (2011) 10 NWLR (pt. 1255) 209; Aluwa vs SPDCN (2011) 18 NWLR (pt. 1279) 797.”

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GENERAL DAMAGES- WHETHER A CLAIM FOR GENERAL DAMAGES NEED TO BE SPECIFICALLY PROVED IN AN ACTION FOR BREACH OF FUNDAMENTAL RIGHT

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“On the allegation that the damages was not proved by credible evidence, and that the person who, in fact, caused the damages must be established, Appellants Counsel appeared to have forgotten that general damages need not be, specifically, pleaded or proved, as the same tends to flow from the act/conduct of the defendant complained against. And in fundamental rights matters, damages automatically accrue, once there is evidence of breach or violation of Applicants fundamental right(s). See Section 35 (6) of the 1999 Constitution and the case of Ozide & Ors vs Ewuzie & Ors (2015) LPELR 24482 CA, where this Court held:
The law is trite that damages in compensation, legally and naturally follow every act of violation of citizens fundamental right. See Section 35 (6) of the 1999 Constitution, as amended. See also Agu vs Okpoko (2009) LPELR 8286 CA.

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DETENTION – BASIS ON WHICH DETENTION OF A PARTY CAN LIE AS A BREACH OF FUNDAMENTAL RIGHT

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“In the case of Gusau & Ors vs Umezuruike (2012) ALL FWLR (pt. 655) 291; (2012) LPELR 8000 (CA), it was held detention, no matter how short, can lie a breach of fundamental right. But that can only be so, if the detention is adjudged wrongful or unlawful in the first place; that is, if there is no legal foundation to the base the arrest and/or detention of the applicant, See Okonkwo vs Ogbogu (1996) 5 NWLR (pt. 499) 420; Isenalumhe vs Joyce Amadin (2001) CHR 458; Nemi vs A.G Lagos State (1996) 6 NWLR (pt. 452). And in the case of Ejiofor vs Okeke (2000) 7 NWLR (pt. 665), it was held:
Where there is an evidence of arrest and detention which were done or instigated by the Respondent in an action for enforcement of fundamental rights application, it is for the Respondent to show that the arrest and detention were lawful . . . We have stated, several times, that a party who employs the Police or any law enforcement agency, to do unlawful act and/or to violate the fundamental rights of a citizen, should be ready to face the consequences, whether alone or with the misguided agency. See again the recent decision of this Court in the case of Bernard Anogwie s Ebere Odom & Ors: (2016) LPELR 40214 (CA), delivered on 24/3/16; Ogbonna vs Obgbonna (2014) 23 WRN 48; (2014) LPELR 22308 (CA).”

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria, 1999|

Evidence Act, 2011|

Fundamental Rights Enforcement Procedure Rules, 2009|

 

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