HERITAGE BANK v. S & S WIRELESS LTD &ORS

CITATION: (2018) LPELR-46571(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON FRIDAY, 2ND NOVEMBER, 2018Suit No: CA/L/871/2011

Before Their Lordships:

JOSEPH SHAGBAOR IKYEGH Justice, Court of AppealBIOBELE ABRAHAM GEORGEWILL Justice, Court of AppealUGOCHUKWU ANTHONY OGAKWU Justice, Court of Appeal

BetweenHERITAGE BANK PLC - Appellant(s)

And1. S & S WIRELESS LIMITED2. MRS. TOPE OLUSOLA3.MR. SEINDE OLUSOLA4. INSPECTOR GENERAL OF POLICE5. ASST. INSPECTOR GENERAL OF POLICE ZONE II6. ECONOMIC AND FINANCIAL CRIMESCOMMISSION

- Respondent(s)

RATIO DECIDENDI

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1. APPEAL - UNAPPEALED FINDING(S)/DECISION(S): Effect of unappealed finding(s)/decision(s) ofcourt<span style="font-size: 12px;">"The findings grounding the liability of the appellant were notchallenged in any of the grounds of appeal in the further amended notice of appeal and/or any issuefor determination in the appeal. The said findings/holding subsists and are on that basis conclusiveand binding on the appellant. See Okotie-Eboh v. Manager (2004) 11 - 12 S.C. 174 at 193 per thelead judgment prepared by Edozie, J.S.C., (as he then was, now of blessed memory) thus - "It is tritelaw that a finding against which there is no appeal remains binding and conclusive: see Alakija v.Abdulai (1998) 5 S.C. 1; (1998) 6 NWLR (Pt. 552) 1 at p.24, Odiase v. Agho (1972) 3 S.C. (Reprint)69; (1972) All NLR (Pt. 1) 170; Foreign Finance v. L.S.D.P.C. (1991) 1 NSCC 520, P.N. Udoh TradingCD. Ltd. v. Abere (2001) 5 S.C. (Pt. II) 64; (2001) 11 NWLR (Pt.723) 114 al 146, Yesufu v. KupperInternational (1996) 5 NWLR (Pt.446) 17, Nwabueze v. Okoye (1988) 10-11 S.C. 77; (1988) 4 NWLR(Pt. 91) 664."</span>Per IKYEGH, J.C.A. (Pp. 12-13, Paras. D-D) - read in context

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2. DAMAGES - AWARD OF DAMAGES: Whether damages must be awarded for a breach offundamental right; whether an artificial person is entitled to damages for a breach of fundamentalright<span style="font-size: 12px;">"It is trite that once an infringement of fundamental right is provedor established the award of compensation in form of monetary damages, whether claimed or not,follows as surely as sunrise in the Tropics (permit the expression). There is nothing likecategorisation and particularisation of damages in an action for the enforcement of fundamentalrights vide Jim-Jaja v. C.O.P. Rivers State (2013) 6 NWLR (pt.1350) 225 at 254 per the lead judgmentprepared by Muntaka-Coomassie, J.S.C., thus - "The appellant's claim is in connection with thebreach of his fundamental rights to his liberty by the respondents. The onus is on him to show thathe was unlawfully arrested and detained i.e. that his fundamental right has been violated. If this isproved, by virtue of the provisions of Section 35(6) of the 1999 Constitution Federal Republic ofNigeria, the complainant is entitled to compensation and apology, where no specific amount isclaimed. Where a specific amount is claimed, it is for the Court to consider the claim and in itsopinion, the amount that would be justified to compensate the victim of the breach. In this respect,the common law principles on the award of damages do not apply to matter brought under theenforcement of the Fundamental Human Rights procedure as submitted by the learned counsel tothe 3rd respondent. The procedure for the enforcement of the Fundamental Human Right wasspecifically promulgated to protect the Nigerians' fundamental rights from abuse and violation byauthorities and persons. When a breach of the right is proved, the victim is entitled to compensationeven if no specific amount is claimed." See also the judgment prepared by M.D. Muhammad J.S.C.,in page 256 thereof thus - "Appellant's unlawful detention by the respondents constitute a breach ofhis right to personal liberty as guaranteed under Section 35 (1) of the Constitution. The sameConstitution has provided under Section 35 (6) thus:- "35 (6): Any person who is unlawfully arrestedor detained shall be entitled to compensation and public apology from the appropriate authority orperson." (Italics supplied for emphasis). From the foregoing, the appellant does not have to ask forcompensation once he has established the fact of his being unlawfully detained, a fact which theCourt below itself held he has. The compensation is automatic by the operation of the law. In anyevent, the record of appeal has clearly shown that appellant has specifically asked for a N2 MillionNaira damages. The lower Court's decision that discountenanced the content of Section 35 (6) ofthe Constitution as well as appellant's specific claim for the award of Two Million Naira damagesarising from the breach of his constitutionally guaranteed right to liberty is manifestly perverse."The award of damages in this case was fixed by the Court below at N275 Million. The damages wereawarded to the 1st - 3rd respondents. The 1st respondent is an artificial person and would not beentitled to damages, as it does not have fundamental rights to vindicate and be compensated indamages therefor. The said award which included the 1st respondent was, therefore, based onerroneous principle of law as fundamental rights action cannot be maintained by an artificial personin respect of violation of the right to personal liberty vide First Bank Plc v. A.-G., Federation (2018) 7NWLR (pt. 1617) 121. The affidavit evidence deposed that the 2nd respondent lost his personalliberty for 29 days on account of the case. The facts as found by the Court below which were notchallenged in the appeal were to the effect that the appellant instigated the 4th - 5th respondentsto violate the fundamental rights of the 2nd - 3rd respondents in their bid to recover debt from the1st - 3rd respondents for the appellant which weighted on the Court below in awarding the saiddamages vide the Supreme Court cases of EFCC v. Diamond Bank Plc (2018) 8 NWLR (pt. 1620) 61,Diamond Bank Plc v. Opara (2018) 7 NWLR (pt. 1617) 92 to the effect that law enforcementagencies should not be used to infringe the fundamental rights of natural persons in the course ofacting illegally as debt collectors and/or enforcers of contractual/civil obligations for other persons.The point has to be made that when damages are awarded jointly and severally against defendants,it implies that any of the defendants or judgment debtors or all of them could be proceeded againstby the judgment creditor for the fruits of the judgment, therefore the appellant could not have beenright to maintain that the award was bad because it amounted to lumping the appellant and the 4th- 5th respondents together."</span>Per IKYEGH, J.C.A. (Pp. 13-17, Paras. E-E) - read in context

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3. JUDGMENT AND ORDER - ORDER OF STRIKING OUT: Effect of an order of striking out<span style="font-size: 12px;">"The ruling of the Federal High Court (Molokwu, J.) upholding thepreliminary objection on ground of incompetence of the application is contained in pages 106 - 113of the record. The Federal High Court did not decide the dispute on the merits in that application.When an application is held to be incompetent the consequential order is to strike out theapplication. The ruling of the Federal High Court (Molokwu, J.) did not therefore put an end or finalityto the litigation in that case as the application was not determined on the merit. See theilluminating judgment of the Supreme Court in the case of Sifax (Nig.) Limited and Ors. v. MigfoNigeria Limited and Anor. (2018) 9 NWlR (pt. 1623) 138 at 182 - 183 per the lead judgmentprepared by Augie, J.S.C., thus - "... a suit that is struck out has not been disposed of permanently ...See also Owoh &amp; Ors v. Asuk &amp; Ors (2008) 16 NWLR (Pt. 1112) 113 at 129-130, paras. H-Bwherein this Court per Mohammed, JSC (as he then was) observed as follows- "Striking out of theplaintiffs/appellants' action does not finally determine the respective rights of the parties in thedispute placed before the trial Court for determination. In this situation, where the claims or rightsof the parties have not been examined or looked into by the trial Court and appropriate findingsmade thereon resulting in a determination, these claims or right effectively remain pending and canbe reviewed by any of the parties in any other Court of concurrent jurisdiction or even the sameCourt that handed down the striking out order ..."&nbsp; In other words, where a suit is struck out,the plaintiff has another opportunity to commence action after curing the deficiency, which resultedin the striking out of the suit - Alor v. Ngene (2007) 12 NWLR (Pt. 1062) 163 at 179 SC." Theapplication at the Court below was thus not an abuse of the process of the Court and was notcaught by the doctrine of res judicata as the rights of the parties were not raised and finallydetermined and disposed of on the merit by the Federal High Court in that case vide Udo v. Obot(1989) 1 NWLR (pt. 95) 59 and the cases (supra) cited on the issue by the 1st - 3rdrespondents."</span>Per IKYEGH, J.C.A. (Pp. 10-12, Paras. D-D) - read in context

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JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the

Judgment): The appeal is from the judgment of the High

Court of Lagos State (the Court below) whereby it awarded

the sum of N275 Million in favour of the 1st – 3rd

respondents against the appellant and the 4th - 5th

respondents jointly and severally for breach of the 1st – 3rd

respondents’ fundamental rights to personal liberty.

Sketchily stated, the case of the 1st – 3rd respondents as

applicants at the Court below was that the 1st – 3rd

respondents contracted a finance agreement with the

appellant for an overdraft facility of N150 million to finance

the purchase of sim-packs and recharge cards for resale

and distribution. The 1st – 3rd respondents noticed over-

charges and arbitrary increase in interest rates on the loan

which their consultants examined and discovered to be

N47,121,083.60k. The 1st – 3rd respondents tried amicable

resolution of the issue with the appellant. The bid to settle

the dispute in peace failed. The 1st – 3rd respondents sued

the appellant at the High Court of Lagos State over the

dispute.

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In the meantime, the appellant petitioned the 4th and 5th

respondents and later the 6th respondent over the dispute

alleging criminality. The 2nd - 3rd respondents were

arrested by the 4th – 6th respondents to answer the

allegation. The 2nd respondent was detained for 29 days in

the course of which the 2nd – 3rd respondents were forced

to sign undertaking to pay the debt. Their property and

assets were also confiscated. It led to the collapse of the

business of the 1st respondent.

The Court below accepted the one-sided affidavit evidence

of the 1st – 3rd respondents and found upon the

uncontroverted and uncontradicted affidavit evidence that

the arrest and detention of the 2nd – 3rd respondents was

instigated by the appellant who acted in collaboration with

the 4th – 5th respondents; upon which the Court below

awarded N272 Million in favour of the 1st – 3rd

respondents against the appellant and the 4th – 5th

respondents jointly and severally for breach of their

fundamental right to personal liberty.

The appellant as the 1st respondent at the Court below was

not satisfied with the judgement and filed a notice of

appeal

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with six (6) grounds of appeal. The original notice of appeal

was with the leave of the Court amended and subsequently

further amended with the leave of the Court. The further

amended notice of appeal with six (6) grounds of appeal

was filed on 20.02.17, but deemed as properly filed on

06.02.17.

The appellant filed a further amended brief of argument on

20.02.17 in which it was argued that the subject-matter of

the dispute having been litigated upon by the parties at the

Federal High Court which disposed of the case in a decision

to that effect, the parties could not re-open the same

dispute at the Court below, therefore the Court below was

wrong in adjudicating over the dispute for the second time

and its judgment should be declared a nullity and as

disrespect to the earlier judgment in consequence citing in

support the cases of General Aviation Services Ltd. v.

Captain Thahal (2004) 10 NWLR (pt. 880) or 2004

MJSC vol.6 120 at 146, Odeleye v. Adegbanke (2008)

WRN (vol.4) 44, Nigeria Intercontinental Merchant

Bank Ltd. v. Union Bank Plc (2004) 4 SC (pt.1) 143,

Peters v. Ashamu (1995) 4 NWLR (pt. 388) 206,

Shugaba v. UBA (1997) 7 SC (no pagination), Mobil

Oil (Nig.)

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Ltd. v. Assan (1995) NWLR (pt. 412) 129 at 143, Race

Auto Supply Co. Ltd. v. Akib (2006) 13 NWLR (pt.

997) (no pagination), Umuana v. Okwuraiwe (1978) 6

– 7 SC 1, Adigun v. Secretary Iwo Local Govt. (1999) 5

SC (pt.111) 1, Stirling Civil Nig. Ltd. v. Yahaya (2005)

4 SC 124, Dingyadi v. INEC (No. 2) (2010) 7 – 12 SC

105, Dingyadi v. INEC (No.3) (2011) 4 SC (pt.1) 1,

Chukwuka v. Ezulike (1986) 5 NWLR (pt.45) 887.

The appellant argued in the further amended brief that

after the Court below held in part of its judgment that the

1st respondent did not establish the claim of N1.9 billion

turnover and profit of N50 million per day the Court below,

none-the-less, awarded aggravated damages of N275

Million at the end of its judgment, when the Court below

acknowledged in its judgment that the damages as claimed

were not proved and that the 1st – 3rd respondent failed to

address it on the issue; and that the 4th – 5th respondents

not being agents of the appellant, the Court below was

wrong to treat them so in its judgment when it proceeded

to lump them together in the award of aggravated

damages, therefore the award of damages should be set

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aside citing in support the cases ofEbba v. Ogodo (1984)

15 SCNLR 372, Woluchem v. Gudi (1984) 5 SC 291,

Olodo v. Josiah (2016) 12 SC (pt.111) 57, Incar

Nigeria Limited v. Benson Transport Limited (1976) 3

SC 11, Odulaja v. Haddad (1973) 11 SC (no

pagination), Adegoke v. Adibi (1992) 5 NWLR (pt.242)

410, Amodu v. Amode (1990) NWLR (pt.150) 350,

Fawehinmi v. I.G.P. and Ors. (2002) 5 SC (pt.1) 63,

Allied Bank of Nigeria Ltd. v. Akubueze (1997) 6

NWLR (pt. 509) (no pagination), Chief Williams v.

Daily Times of Nigeria Ltd. (1990) 1 NWLR (pt. 124) 1

at 30 – 31.

The appellant argued in the further amended brief that by

inviting the Court below to entertain and interpret the

previous judgment of the Federal High Court, a Court of co-

ordinate jurisdiction with the Federal High Court, the

exercise amounted to an abuse of the process of the Court

and should be declared a nullity citing in support the cases

of ARC. V. JDPC (2003) 2 – 3 SC 47 at 64, Dingyadi v.

INEC (No. 3) (supra) at 72; upon which the appellant

urged that the appeal should be allowed and Section 16

(now Section 15) of the Court of Appeal Act read with the

case of

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Inakoju v. Adeleke (2007) 1 SC (pt.1) 1 be invoked to

dismiss the action at the Court below for being an abuse of

the process of the Court.

The 1st – 3rd respondents filed an amended brief of

argument on 01.03.17 in which it was contended that the

Federal High Court merely struck out the earlier case on a

preliminary objection without deciding the dispute on the

merit, therefore the Court below was not precluded from

entertaining the action and entering judgment in it on the

merit citing in support the cases of Ege Shipping and

Trading Ind. Ltd. v. Tigris Corps (1999) 14 NWLR (pt.

634) 70 at 94, Reg. Trustees Ifeloju Friendly Union v.

Kuku (1991) 5 NWLR (pt. 189) 65 at 78 – 80, Eronini

v. Iheuko (1989) 2 NWLR (pt. 101) 46, Ojabo v. Inland

Bank (1998) 11 NWLR (pt. 574) 433, Obasi Bros. Co.

Ltd. v. M.B.A.S. Ltd. (2005) 5 NWLR (pt. 929) 117,

128.

The 1st – 3rd respondents contended in the amended brief

that the appellant did not file counter affidavit and was

thus deemed to have admitted the facts in support of the

application as held by the Court below in part of its

judgment which was not appealed against and subsists

citing in support the cases of

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A.-G., Anambra State v. A.-G., Federation (2005) 9

NWLR (pt. 931) 572, Adamu v. Akukalia and Ors.

(2005) 11 NWLR (pt. 936) 263.

The 1st – 3rd respondents contended that they established

special, aggravated and exemplary damages in paragraph

21 of the affidavit in support of the application in page 150

of the record of appeal (the record) which was not

challenged and that the Court below having found in its

judgment in pages 157 – 158 of the record that the affidavit

evidence sufficiently established “malice, fraud, cruelty,

insolence, and flagrant disregard of law” and also that the

acts of the 1st, 4th and 5th respondents were “invidious

and to be nothing but acts of terrorism against persons who

were easy victims of their venom” the Court below was

entitled to award the said damages of N275 Million which

should not be disturbed as the award of damages is not

based on address of counsel but on the evidence showing

breach of a right.

It was also contended that 1st – 3rd respondents’ learned

counsel had addressed the Court below on damages in the

written address in pages 60 of the record to the

summarized

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effect that the 1st – 3rd respondents having established

infringement of their fundamental right award of damages

followed as a matter of course; and that the findings of fact

and the award of damages having not been shown to be

perverse should not be disturbed; and that the appeal be

dismissed citing in support the cases of Okwejiminor v.

Gbakeji (2008) 5 NWLR (pt. 1079) 223, Iniama v.

Akpabio (2008) 17 NWLR (pt. 1116) 225, Ogunsakin

v. Ajidara (2008) 6 NWLR (pt. 1082) 1 at 24, Ojo v.

F.R.N. (2008) 11 NWLR (pt. 1099) 467 at 530, Amadi

v. Chinda (2009) 10 NWLR (pt. 1148) 107 at 130,

Mustapha v. C.A.C. (2009) 8 NWLR (pt. 1142) 35 at 51

– 52, Anyegwu v. Onuche (2009) 3 NWLR (pt. 1129)

659 at 674.

The reply brief filed on 22.03.17 emphasised that the

Federal High Court (Molokwu, J.) having determined the

case put an end to the litigation which could not be

reviewed or set aside by a Court of co-ordinate jurisdiction

as was done by the Court below which should have

dismissed the case for being an abuse of the process of the

Court citing in support the case of Dingyadi v. INEC

(2010) 7 – 21 SC 105 at 133, Ezomo v. A.-G., Bendel

State (1986) 4 NWLR (pt. 35)

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273, Honda Place Ltd. v. Globe Motors (2005) 7 SC

(pt. 3) 183, Iberu v. Ume-Ohana (1993) 2 NWLR (pt.

277) 510 at 520, Osunrinde v. Ajamogun (1992) 6

NWLR 156 at 184, Oloriegbe v. Omotesho (1993) 1

NWLR (pt. 270) 386 at 396, Igwe v. Kalu (2002) 14

NWLR (pt. 787) 435, Okafor v. A.-G., Anambra State

(1991) 6 NWLR 659, Hoystead v. Commissioner of

Taxation (1926) A.C. 155, Udo v. Obot (1989) 1 NWLR

(pt. 95) 59, Dzungwe v. Gbishe (1985) 2 NWLR (pt. 8)

528, Ezenwa v. Kareem (1990) 3 NWLR (pt. 138) 258,

Arubo v. Aiyeleru (1993) 3 NWLR (pt. 280) 126.

The reply brief contended that regardless of absence of

counter affidavit the 1st – 3rd respondents were bound to

allege and prove special damages with particularity which

was not the case here; nor was a case for aggravated

damages made as held by the Court below that the 1st –

3rd respondents’ learned counsel had not stated “why

aggravated damages should be paid” citing in support the

cases ofB.B.B. v. ACB (2004) 2 NWLR (pt. 858) 521,

Shell Petroleum Development Co. v. Tiebo VII (2005)

9 NWLR (pt. 931) 439, Eliochin (Nig.) Ltd. v. Mbadiwe

(1986) 5 SC (Reprint) 96, Rookes v. Bernard (1964)

A.C.

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1129 at 1223 – 1224; and that the Court below having

acted on wrong principle of law and made extremely high

award of damages and thus arrived at an entirely erroneous

estimate of damages the award should be set aside.

The reply brief concluded by urging for the appeal to be

allowed and the reliefs sought in the notice of appeal, as

amended, be granted.

The 4th – 6th respondents did not file brief of argument and

were not represented at the hearing of the appeal, though

reported to have been served hearing notice to that effect.

The ruling of the Federal High Court (Molokwu, J.)

upholding the preliminary objection on ground of

incompetence of the application is contained in pages 106 –

113 of the record. The Federal High Court did not decide

the dispute on the merits in that application. When an

application is held to be incompetent the consequential

order is to strike out the application.

The ruling of the Federal High Court (Molokwu, J.) did not

therefore put an end or finality to the litigation in that case

as the application was not determined on the merit. See the

illuminating judgment of the Supreme Court in the case

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of Sifax (Nig.) Limited and Ors. v. Migfo Nigeria

Limited and Anor. (2018) 9 NWlR (pt. 1623) 138 at

182 – 183 per the lead judgment prepared by Augie, J.S.C.,

thus –

“... a suit that is struck out has not been disposed of

permanently ... See also Owoh & Ors v. Asuk & Ors

(2008) 16 NWLR (Pt. 1112) 113 at 129-130, paras. H-

B wherein this Court per Mohammed, JSC (as he then was)

observed as follows-

“Striking out of the plaintiffs/appellants' action does not

finally determine the respective rights of the parties in the

dispute placed before the trial Court for determination. In

this situation, where the claims or rights of the parties have

not been examined or looked into by the trial Court and

appropriate findings made thereon resulting in a

determination, these claims or right effectively remain

pending and can be reviewed by any of the parties in any

other Court of concurrent jurisdiction or even the same

Court that handed down the striking out order …..”

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In other words, where a suit is struck out, the plaintiff has

another opportunity to commence action after curing the

deficiency, which resulted in the striking out of the suit -

Alor v. Ngene (2007) 12 NWLR (Pt. 1062) 163 at 179

SC.”

The application at the Court below was thus not an abuse

of the process of the Court and was not caught by the

doctrine of res judicata as the rights of the parties were not

raised and finally determined and disposed of on the merit

by the Federal High Court in that case vide Udo v. Obot

(1989) 1 NWLR (pt. 95) 59 and the cases (supra) cited

on the issue by the 1st – 3rd respondents.

The findings grounding the liability of the appellant were

not challenged in any of the grounds of appeal in the

further amended notice of appeal and/or any issue for

determination in the appeal. The said findings/holding

subsists and are on that basis conclusive and binding on

the appellant. See Okotie-Eboh v. Manager (2004) 11

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– 12 S.C. 174 at 193 per the lead judgment prepared by

Edozie, J.S.C., (as he then was, now of blessed memory)

thus -

“It is trite law that a finding against which there is no

appeal remains binding and conclusive: see Alakija v.

Abdulai (1998) 5 S.C. 1; (1998) 6 NWLR (Pt. 552) 1 at

p.24, Odiase v. Agho (1972) 3 S.C. (Reprint) 69;

(1972) All NLR (Pt. 1) 170; Foreign Finance v.

L.S.D.P.C. (1991) 1 NSCC 520, P.N. Udoh Trading CD.

Ltd. v. Abere (2001) 5 S.C. (Pt. II) 64; (2001) 11

NWLR (Pt.723) 114 al 146, Yesufu v. Kupper

International (1996) 5 NWLR (Pt.446) 17, Nwabueze

v. Okoye (1988) 10-11 S.C. 77; (1988) 4 NWLR (Pt.

91) 664.”

The net result is that the said findings established that the

1st – 3rd respondents proved on their unchallenged

credible affidavit evidence the violation of the 2nd – 3rd

respondents’ fundamental rights to personal liberty, in

particular.

It is trite that once an infringement of fundamental right is

proved or established the award of compensation in form of

monetary damages, whether claimed or not, follows as

surely as sunrise in the Tropics (permit the expression).

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There is nothing like categorisation and particularisation of

damages in an action for the enforcement of fundamental

rights vide Jim-Jaja v. C.O.P. Rivers State (2013) 6

NWLR (pt.1350) 225 at 254 per the lead judgment

prepared by Muntaka-Coomassie, J.S.C., thus –

“The appellant's claim is in connection with the breach of

his fundamental rights to his liberty by the respondents.

The onus is on him to show that he was unlawfully arrested

and detained i.e. that his fundamental right has been

violated. If this is proved, by virtue of the provisions of

Section 35(6) of the 1999 Constitution Federal Republic of

Nigeria, the complainant is entitled to compensation and

apology, where no specific amount is claimed. Where a

specific amount is claimed, it is for the Court to consider

the claim and in its opinion, the amount that would be

justified to compensate the victim of the breach. In this

respect, the common law principles on the award of

damages do not apply to matter brought under the

enforcement of the Fundamental Human Rights procedure

as submitted by the learned counsel to the 3rd respondent.

The procedure for the enforcement of the Fundamental

Human Right

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was specifically promulgated to protect the Nigerians'

fundamental rights from abuse and violation by authorities

and persons. When a breach of the right is proved, the

victim is entitled to compensation even if no specific

amount is claimed.”

See also the judgment prepared by M.D. Muhammad J.S.C.,

in page 256 thereof thus -

“Appellant's unlawful detention by the respondents

constitute a breach of his right to personal liberty as

guaranteed under Section 35 (1) of the Constitution. The

same Constitution has provided under Section 35 (6) thus:-

"35 (6): Any person who is unlawfully arrested or detained

shall be entitled to compensation and public apology from

the appropriate authority or person." (Italics supplied for

emphasis).

From the foregoing, the appellant does not have to ask for

compensation once he has established the fact of his being

unlawfully detained, a fact which the Court below itself

held he has. The compensation is automatic by the

operation of the law. In any event, the record of appeal has

clearly shown that appellant has specifically asked for a N2

Million Naira damages.

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The lower Court's decision that discountenanced the

content of Section 35 (6) of the Constitution as well as

appellant's specific claim for the award of Two Million

Naira damages ar is ing from the breach of his

constitutionally guaranteed right to liberty is manifestly

perverse.”

The award of damages in this case was fixed by the Court

below at N275 Million. The damages were awarded to the

1st - 3rd respondents. The 1st respondent is an artificial

person and would not be entitled to damages, as it does not

have fundamental rights to vindicate and be compensated

in damages therefor. The said award which included the 1st

respondent was, therefore, based on erroneous principle of

law as fundamental rights action cannot be maintained by

an artificial person in respect of violation of the right to

personal liberty vide First Bank Plc v. A.-G., Federation

(2018) 7 NWLR (pt. 1617) 121.

The affidavit evidence deposed that the 2nd respondent lost

his personal liberty for 29 days on account of the case. The

facts as found by the Court below which were not

challenged in the appeal were to the effect that the

appellant instigated the 4th – 5th respondents to violate the

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fundamental rights of the 2nd – 3rd respondents in their

bid to recover debt from the 1st – 3rd respondents for the

appellant which weighted on the Court below in awarding

the said damages vide the Supreme Court cases of EFCC v.

Diamond Bank Plc (2018) 8 NWLR (pt. 1620) 61,

Diamond Bank Plc v. Opara (2018) 7 NWLR (pt. 1617)

92 to the effect that law enforcement agencies should not

be used to infringe the fundamental rights of natural

persons in the course of acting illegally as debt collectors

and/or enforcers of contractual/civil obligations for other

persons.

The point has to be made that when damages are awarded

jointly and severally against defendants, it implies that any

of the defendants or judgment debtors or all of them could

be proceeded against by the judgment creditor for the

fruits of the judgment, therefore the appellant could not

have been right to maintain that the award was bad

because it amounted to lumping the appellant and the 4th –

5th respondents together.

Based on what I have said thus far, I am of the considered

opinion that the damages of N275 Milion are gargantuan or

astronomically high.

17

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8) LP

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571(

CA)

I would allow the appeal on that ground only and interfere

with the award which I hereby reduce to N10 Million for

the 2nd – 3rd respondents against the appellant and the 4th

– 5th respondents thus varying the award made by the

Court below from N275 Million to the said N10 million

accordingly. The appellant shall pay N300,000 costs to the

2nd – 3rd respondents.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the

privilege of reading in draft the lead judgment of my

learned brother JOSEPH SHAGBAOR IKYEGH, JCA just

delivered with which I agree and adopt as mine. I have

nothing more to add.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was

privileged to have read before now the draft of the decision

which has just been rendered by my learned brother,

Joseph Shagbaor Ikyegh, JCA. I am in entire agreement

with, and do not desire to add to the reasoning and

conclusion therein contained. I adopt the entire decision as

mine.

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CA)

Appearances:

1. The Appellant was unrepresented but servedhearing notice.For Appellant(s)

2. Mr. K. Izimah for the 1st – 3rd Respondents.

3. The 4th Respondent, as well as the 6thRespondent, were served hearing notice but wereunrepresented.For Respondent(s)

(201

8) LP

ELR-46

571(

CA)