CORAM

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Biobele Abraham Georgewill-Justice of the Court of Appeal

Bature Isah Gafai-Justice of the Court of Appeal

Nehizena Idemudia Afolabi-Justice of the Court of Appeal

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PARTIES

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ORNGU UNONGU

APPELLANTS 

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JONATHAN TYOBAN

RESPONDENTS 

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AREA(S) OF LAW

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CONSTITUTIONAL LAW, HUMAN RIGHTS, FUNDAMENTAL RIGHTS ENFORCEMENT, AGENCY LAW, PRACTICE AND PROCEDURE, EVIDENCE LAW, POLICE LAW, CIVIL LIABILITY, ADMINISTRATIVE LAW, APPEAL

 

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SUMMARY OF FACTS

The Respondent, a professional photographer operating a studio at Ikpayongo Town in Benue State, was engaged by one Kenneth Akaan on 30th January 2014 to photograph a burgled vehicle belonging to the Appellant at Ikpayongo Motor Park. The Respondent took five snapshots and demanded N500 per copy, but Kenneth Akaan disagreed with the cost and refused to pay. Due to non-payment, the Respondent deleted the photographs and returned to his studio.

About a month later, Kenneth Akaan returned demanding the photographs which were required by the Police for their investigation into the alleged theft of N2,300,000 from the Appellant’s vehicle trunk on 30th January 2014. When the Respondent could not produce the deleted photographs, Kenneth Akaan later returned with the Appellant to demand them. Following this, the Respondent was arrested and detained by the Police for two days from 31st March to 1st April 2014, charged with causing disappearance of evidence, but was subsequently discharged by the Chief Magistrate Court.

The Respondent commenced an action for enforcement of his fundamental rights at the Federal High Court on 26th May 2016, claiming N46,000,000 as damages for unlawful arrest, torture, and detention, along with a public apology and injunctive relief. The trial court granted the claims and awarded N500,000 in damages against the Appellant and the 2nd-4th Respondents (Police officers). The Appellant appealed this decision, contending that he had no agency relationship with Kenneth Akaan and was not responsible for the Respondent’s arrest and detention.

 

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HELD

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1. The appeal was dismissed.

2. The Court of Appeal upheld the trial court’s judgment granting the Respondent’s claim for enforcement of fundamental rights.

3. The Court affirmed the award of N500,000 as compensation to the Respondent against the Appellant and the Police.

4. The Court ordered costs of N500,000 against the Appellant in favor of the Respondent.

5. The Court held that the Appellant was responsible for the arrest, detention and torture of the Respondent through his complaint to the Police and active instigation of the proceedings against the Respondent.

 

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ISSUES

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1. Whether or not the lower Court was right and justified in the midst of evidence and circumstances before it that Kenneth Akaan acted as the agent of the Appellant in securing the professional services of the Respondent to take pictures of the Crime Scene on 31/1/2014?

2. Whether or not the lower Court failed to consider issues argued in the matter by the Appellant and if that failure occasioned a breach of fair hearing and miscarriage of justice to the Appellant?

3. Whether or not the lower Court is perverse and unjustified in its holding that the Appellant is liable to the claim of the Respondent for laying a complaint of disappearance of photographs taken by the latter of a Crime Scene on 31/1/2014?

 

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RATIONES DECIDENDI

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ENFORCEMENT OF FUNDAMENTAL RIGHTS – BURDEN OF PROOF ON APPLICANT:

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“An Applicant for the enforcement of his fundamental right is under a duty to prove, by credible and cogent evidence, the breach or threatened breach of his fundamental right to be entitled to its enforcement and the resultant damages against a Respondent failing, which his claim must be dismissed. Thus, in an application for enforcement of fundamental right, if the breach alleged is not proved, it is bound to fail.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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EVIDENCE IN FUNDAMENTAL RIGHTS CASES – IMPORTANCE OF CREDIBLE EVIDENCE:

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“In the above regard, once the requisite hard evidence is lacking in
support of the claim for enforcement of fundamental right, then neither mere
averments or even bare depositions not supported by credible and cogent
evidence nor the most forensic and eloquence of brilliant submissions can be a
substitute for evidence that was not given. This is so because in law, the
fountain or arrow head of the law are the evidence of the facts.” – Per
BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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DOCUMENTARY EVIDENCE – WEIGHT OF UNCHALLENGED POLICE RECORDS:

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“In law, the contents of Exhibits MD2 which was clearly the act of the Police, not challenged by the Appellant before the lower Court, cannot be discredited or contradicted by the bare denial of the Appellant. I hold that both the Appellant and the Police were duly bound by the unchallenged contents of Exhibit MD2.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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POLICE ARREST AND DETENTION – REQUIREMENTS FOR LAWFUL DETENTION:

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“My lords, it is never in dispute, as it is the law, that the Police is empowered to arrest and detain upon reasonable suspicion in the due discharge of their statutory duty imposed on them by law. However, such a duty must be carried out at all times within the confines of the law, and therefore, any arrest and detention must be not only for reasonable cause but more importantly on reasonable suspicion of the person being arrested and detained of having committed an offence known to the laws of the land.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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UNLAWFUL ARREST AND DETENTION – LIABILITY FOR INFRINGEMENT OF FUNDAMENTAL RIGHTS:

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“In the instant case, it seems very clear to me, on the proved evidence, and I so hold, that the arrest and detention of the Respondent by the Police was clearly at the behest and active instigation of the Appellant and was devoid of any reasonable grounds. In law, such an unwarranted and detention of the Respondent clearly constituted an infringement on the Respondent’s fundamental rights by the unjust and unjustifiable arrest and detention of the Respondent for 2 days by the Police at the behest of the Appellant for no just cause at all, as none was shown by either the Appellant or the Police, as was correctly held by the lower Court.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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PRIVATE INDIVIDUAL LIABILITY – INSTIGATION OF POLICE ACTION:

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“In law, where evidence of arrest and detention of an Applicant is adduced against the Respondents in an action for enforcement of fundamental rights, it is incumbent on the Respondents to show that the arrest and detention of the Applicant was lawful. It follows, therefore, in law, a private individual who employs or engages or instigates the Police to settle his private score would be personally liable for the wrongful act of the Police.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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AGENCY RELATIONSHIP – CREATION AND TYPES OF AGENCY:

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“In law, agency is the fiduciary relationship created by express or implied contracts or by law in which one party, the agent may act on behalf of another party (the principal) and binds that other party by word or action, thus a principal is one who authorizes another to act on his behalf while an agent is one who is authorized to act for or in in place of another, a representative. Thus, agency relationship can, in law, even be implied, and is referred to as the implied authority or apparent or ostensible authority of an agent acting within the scope of the authority vested on him by the principal.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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PRINCIPAL AND AGENT LIABILITY – JOINT AND SEVERAL LIABILITY:

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“My lords, in England, as in Nigeria, the law has been well settled that a master is jointly and severally liable for both the authorized act of and unauthorized mode of doing an act authorized by the servant.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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FAIR HEARING – COURT’S DUTY TO CONSIDER ALL RELEVANT ISSUES:

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“My lords, it is true in law that a Court must consider and pronounce on all issues arising and properly submitted before it for determination by the contending parties. Generally, issues for determination are formulated by the parties and or the Court. However, a Court is at liberty, and possesses the jurisdiction to modify or reject all or any of the issues formulated by the parties, and frame its own issues or reframe the issues formulated by the parties, if in its view, such issues will not lead to a proper determination of the case.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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FAIR HEARING – ESSENCE AND TEST OF FAIR HEARING:

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“Now, the term ‘fair hearing’ is in most cases synonymous with fair trial and natural justice, an issue which clearly is at the threshold of our legal system and thus once there has been a denial of fair hearing the whole proceedings automatically become vitiated. A denial of fair hearing can ensure from the conduct of the Court in the hearing of a case or in the judgment of the Court. Indeed, justice must not only be done in the thinking of the lower Court, or any Court for that matter, but must also be seen to have been done. The true test of fair hearing is the impression of a reasonable person who was present at the trial whether from the observation justice has been done in the case.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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FAIR HEARING – QUESTION OF OPPORTUNITY TO BE HEARD:

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“My lord, in law, an allegation of breach of the right to fair hearing is basically a question of fact to be determined on the peculiar facts of each case. It is also important to iterate that the right to fair hearing is substantially a question of opportunity of being heard, and therefore, lies squarely in the procedure followed by a Court in the determination of a case and not in the correctness of the decision reached thereby by the Court.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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APPELLATE COURT INTERVENTION – WHEN APPELLATE COURT WILL INTERFERE:

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“Now, in law, the duty of evaluating and ascription of probative weight or value to evidence led is ordinarily that of the trial Court, the lower Court. Thus, it is only where the lower Court had been shown not to have properly carried out its sacred duty of dispassionately evaluating the totality of the evidence led, and had thus failed in this primary duty, that an appellate Court would have the legal justification to intervene and re-evaluate the evidence on the printed record in order to make appropriate findings of facts in line with the dictates of justice to the parties.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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APPELLATE COURT REVIEW – CORRECTNESS OF JUDGMENT VERSUS REASONS:

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“My lords, in law, once a trial Court discharges its duty of evaluation and ascription of probative value on the strength of the evidence placed before it, as in the instant appeal, an appellate Court should not, and will not, interfere once the conclusions reached is correct even if the reason turns out to be wrong. The lower Court did a meticulous job and evaluated and considered the claim of the Respondent against the Appellant and the Police and granted it as proved, as required by law.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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• Constitution of the Federal Republic of Nigeria 1999 (as amended)

• African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap. A9, LFN 2004

• Fundamental Rights (Enforcement Procedure) Rules 2009

• Police Act 2020

• Court of Appeal Rules 2021

• Penal Code Law of Northern Nigeria

 

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