⦿ CASE SUMMARY OF:
Mr. Gabriel Jim-jaja v. Commissioner Of Police Rivers State & Ors. (2012)
– Award of damages for breach of fundamental rights though not pleaded;
Mr. Gabriel Jim-JaJa
1. Commissioner Of Police Rivers State
2. Inspector Alabi (Siib)
3. Nelson Douglas
⦿ LEAD JUDGEMENT DELIVERED BY:
Nwali Sylvester Ngwuta, J.S.C.
⦿ LAWYERS WHO ADVOCATED
FOR THE APPELLANT
– E. C. Aguma
FOR THE RESPONDENT
– Eberechi Adele
Appellant borrowed the sum of N1.4 million from the 3rd Respondent, a registered money lender.
The loan granted on 15/2/2002 was to be repaid with the accruing interest on 15/3/2010. The loan was secured with a Certificate of Occupancy of the property No. 98, Egede Street, Mile 1, Diobu, Port Harcourt, Rivers State.
Appellant failed to repay the loan and the 3rd Respondent in his attempt to convert the security into cash, claimed that the Certificate of Occupancy was forged. He then wrote a petition to the Police and as a result the appellant was arrested but released on bail by the 1st and 2nd Respondents on his undertaking to repay the loan upon his release on bail. When he failed to honour his pledge to repay the loan, the 1st and 2nd Respondents arrested him again, but he was again released on bail, this time, at the instance of the 3rd Respondent.
Meanwhile, on his ex parte application, the High Court of Rivers State, presided over by Amadi, J, granted the appellant leave on 7/11/2002 to apply to enforce his fundamental right in terms of the reliefs set out in the Statement attached to the application for leave.
The matter was adjourned for the motion on notice. On 24/5/05, Kobani J, who heard the motion on notice held that the appellant’s fundamental rights have not been violated by the respondents, and accordingly dismissed the motion on notice.
Aggrieved by the ruling, the appellant appealed to the Court of Appeal, Port Harcourt Division. In its judgment delivered on 25/2/2010, the Court below held that “the 3rd respondent and the 1st and 2nd respondents worked in tandem at the peril of the appellant.”
The Court vacated the ruling of the trial Court but went on to hold that damages could not be awarded as, according to the Court, the appellant did not pray for same.
The appellant appealed to this Court on the issue of award of damages.
Whether the Court below was right in refusing to award the Appellant damages on the ground that damages was not claimed?
⦿ HOLDING & RATIO DECIDENDI
1. Issue 1 was upheld by the Supreme Court in favour of the appellant.
i. Appellant claimed the sum of N2 million as damages against the respondents for unlawful arrest and detention. That claim, verified on affidavit evidence was not really contested. It is the law that evidence that is relevant to the issue in controversy and is admissible, admitted and not successfully challenged, contradicted or discredited is good and reliable evidence to which probative value ought to be ascribed and which ought to influence the Court in the determination of the dispute before it. See Chabasaya v. Anwasi (2010) 3-5 SC 208. Though the appellant did not specifically ask for exemplary damages for the violation of his right by the respondent, the Court below ought to have awarded him the damages he claimed and proved.
ii. A community reading of section 35(6) and 46(2) of the Constitution 1999 will give effect to the principle of ubi jus ibi remedium. By section 35 and 46 of the Constitution, Fundamental right matters are placed on a higher pedestal than ordinary civil matters in which a claim for damages resulting from a proven injury has to be made specifically and proved. Once the appellant proved the violation of his fundamental right by the respondents, damages in form of compensation and even apology should have followed.
iii. I have demonstrated that the appellant claimed N2 million as damages and even if the appellant did not so claim, he is entitled to compensation on proof of violation of his right by the respondent pursuant to s.35(6) of the Constitution.
⦿ SOME PROVISIONS
S.46(2) of the CFRN 1999:
“Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provision of this Section and may make such order, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter.”
Order 6 Rule 2(1) of the Court of Appeal 2011 provide thus:
2(1) All appeals shall be by way of re-hearing and shall be brought by Notice (hereinafter called the Notice of Appeal) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal which shall be accompanied by a sufficient number of copies for service on all such parties, and it shall also have endorsed on it an address for service”.
⦿ NOTABLE DICTA
A preliminary objection is a pre-emptive strike and its resolution will determine whether or not the appeal will be determined on the merit. – Nwali Sylvester Ngwuta, J.S.C. Jim-jaja v. Commissioner Of Police Rivers State & Ors. (2012)
Where the substance of a ground of appeal reveals a misapplication of law to facts proved or admitted at the trial the ground of appeal is a ground of law and not of mixed law and fact or a ground of fact. – Nwali Sylvester Ngwuta, J.S.C. Jim-jaja v. Commissioner Of Police Rivers State & Ors. (2012)
It is my view that it has long been settled that the principles guiding the courts in the determination of whether a ground of appeal is one of law or fact or mixed law and fact are as follows:
1. Whether the court is being invited to investigate the existence or [in] otherwise of certain facts upon which the award of damages to the respondent was based such a ground is of mixed law and fact
2. A ground which challenges the findings of facts made by the trial court or involves issues of law and fact can only be argued with the leave of the appellate court, if the judgment being challenged is that of the Court of Appeal.
3. Where the evaluation of facts established by the trial court before the law in respect thereof is applied is under attack or question the ground of appeal is that of mixed law and fact.
4. Where the evaluation of evidence tendered at trial is exclusively question, it is a ground of fact.
5. A ground of law arises where the ground of appeal shows that the court of trial or appellate court mis-understood the law or misapplied the law to the proved fact or admitted fact. – Muntaka-Coomassie, J.S.C., Jim-jaja v. Commissioner Of Police Rivers State & Ors. (2012)
A ground of appeal to be competent must be a challenge to the particular findings of the court and its decisions and not against passing comments of the Judge. – Muntaka-Coomassie, J.S.C., Jim-jaja v. Commissioner Of Police Rivers State & Ors. (2012)
The above facts were not disputed nor can it be said that the appellant was arrested and detained on the allegation of forged Certificate of Occupancy. His arrest and detention was predicated on his failure to repay the loan he obtained from the 3rd Respondent. If the appellant’s arrest and detention resulted from the allegation of forgery, which is a crime, the appellant could not have been released on bail on a mere undertaking to repay the loan, a civil matter. – Nwali Sylvester Ngwuta, J.S.C. Jim-jaja v. Commissioner Of Police Rivers State & Ors. (2012)
It is the law that evidence that is relevant to the issue in controversy and is admissible, admitted and not successfully challenged, contradicted or discredited is good and reliable evidence to which probative value ought to be ascribed and which ought to influence the Court in the determination of the dispute before it. – Nwali Sylvester Ngwuta, J.S.C. Jim-jaja v. Commissioner Of Police Rivers State & Ors. (2012)
The procedure for the Enforcement of the Fundamental Human Right 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. – Muntaka-Coomassie, J.S.C., Jim-jaja v. Commissioner Of Police Rivers State & Ors. (2012)