YAHAYA v. NPF, PLATEAU STATE COMMAND

CITATION: (2018) LPELR-46045(CA)

In the Court of AppealIn the Jos Judicial Division

Holden at Jos

ON MONDAY, 2ND JULY, 2018Suit No: CA/J/10/2017

Before Their Lordships:

ADZIRA GANA MSHELIA Justice, Court of AppealUCHECHUKWU ONYEMENAM Justice, Court of AppealELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice, Court of Appeal

BetweenYUSUF YAHAYA - Appellant(s)

AndNIGERIA POLICE FORCE, PLATEAU STATECOMMAND - Respondent(s)

RATIO DECIDENDI

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1. APPEAL - UNAPPEALED FINDING(S)/DECISION(S): Effect of unappealed finding(s)/decision(s) ofcourt"This appeal is against part of the decision of the lower Court refusing to grant the reliefs sought afterfinding as a fact that there was a breach of Appellant's Fundamental Human Right. For ease ofemphasis and clarity the Ruling is reproduced hereunder thus:RULING"After listening to the learned counsel move their originating motion. And after going over the processfiled which were neither controverted or contradicted, I am of the view and that the reliefs sought beand is hereby granted. Consequently orders 1, 2 and 3 are hereby granted. As for orders 4 and 5 theyare not granted because they were not proved. It is trite law that damages must be proved. No cost isawarded".The above ruling was not appealed against by the Respondent. The Appellant was the claimant beforethe lower Court. Appellant was the successful party who has appealed against part of the decision. It istrite law that any finding of facts made by a trial Court for which there is no appeal remains valid andsubsisting. In other words, where a trial Court makes crucial findings of facts on an issue before it andupon which the Judgment of the Court is made, and such findings are not appealed against orchallenged on appeal, such findings remain valid and subsisting. Such findings of fact made by the trialCourt and in which there is no appeal, are deemed admitted by the Appellant or party against whomthey were made, and the Appellate Court will be right to act on it. See Ebemighe v Achi (2011) 2 NWLR(Pt.1230) 65; Amoshima v State (2011) 14 NWLR (Pt.1268) 530, CPC v INEC (2011) 18 NWLR (Pt.1279)493; Isa v C.G.C Nigeria Ltd (2014) LPELR -23977 (CA), Kraus Thomson Org. v Unical (2004) 9 NWLR(Pt.879) 631 and 653, Golden Const. Co. Ltd v Stateco Nig. Ltd (2014) 8 NWLR (Pt.1408) 171 at 198,Adewale & Anor v Adeola & Ors (2015) LPELR - 25972 (CA). It is clear that the Respondent did notcontest the appeal nor challenged the findings of fact made by the lower Court. The Respondent by notchallenging the finding made by the trial Court, had admitted violating the fundamental rights of theAppellant and is binding on the Respondent. This Court cannot interfere with the finding of fact notappealed against."Per MSHELIA, J.C.A. (Pp. 9-11, Paras. D-D) - read in context

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2. DAMAGES - AWARD OF DAMAGES: Position of the law on the award of damages for breach offundamental right(s)"Now, the question is whether the learned trial Judge rightly refused to grant reliefs 4, 5 and 6 infavour of the Appellant. The complaint of the Appellant is based on the said reliefs only. The questionis whether damages must be awarded for a breach of fundamental right. In Skye Bank Plc v EmersonNjoku & Ors (2016) LPELR - 40447 (CA) the Court held that:"In fundamental rights action, damages automatically accrue, once the Respondent has been adjudgedto have violated the Applicants fundamental rights. See Ozide & Ors v Ewuzie & Ors (2015) LPELR -24482 (CA), Ejefor v Okeke (2000) 7 NWLR (Pt.665)".In another related case of Okoro v Commissioner of Police Enugu State & anor (2016) LPELR - 41025(CA) the Court observed thus:"I am of the opinion and do agree with the learned counsel to the appellant that the learned trial ChiefJudge having held that the appellant's fundamental right was breached and/or violated by theRespondents ought to have awarded damages in his favour to compensate or serve as a recompensefor the said injured rights. This position has been affirmed by the Supreme Court, per Ogwuegbu, JSC inthe case of Okonkwo v Ogbogu (1996) LPELR - 2486, (1996) 5 NWLR (Pt.499) 420. Wherein HisLordship stated as follows "Any trespass to the person however slight, gives a right of action to recoverat any rate nominal damages. Even where there has been no physical injury, substantial damages maybe awarded for the injury to the man's dignity and for discomfort or inconvenience. Where liberty hasbeen interfered with, damages are given though he has not suffered any pecuniary damages. It is alsonot necessary for the plaintiff to give evidence on damages to establish his cause of action or to claimany specific amount of damages".The crux of this appeal is the refusal of the trial Court to award damages. It is trite law that where atrial Court failed and/or neglected wrongfully to have awarded damages, an appellate Court couldgrant same, after finding or entering Judgment in favour of the Appellant. This position has beenreiterated by Supreme Court in the case of Onwuka v Omogui (1992) 3 NWLR (pt.230) 393 @ 417,(1992) LPELR - 2719, where His Lordship Babalakin, JSC observed thus: "Where however the trial Courtfails to consider the question of damages an appeal Court is entitled to proceed to assess the damageswhen it allows the appeal without referring the case to the trial Judge for that exercise". Put itdifferently where a trial Court did not make assessment of damages, an appellate Court can make theassessment itself, if there exists on record enough evidence or sufficient materials on which theassessment can be based. See Olawale Sonibare v C.S Soleye (2009) 4-5 SC (pt.1) 1. In Jim-Jaja v C.O.PRivers State (2013) 6 NWLR (pt.1350) 225 at 256 the Supreme Court also held that compensation isautomatic by the operation of law.Following the decision in the authorities cited supra especially theSupreme Court decision in Jim-Jaja v Commissioner of Police Rivers State (supra) this Court caninterfere and award damages since the lower Court had failed to award same. The lower Court made agrievous error not to follow the decision of the Supreme Court which is binding on all Courts by theprinciple of stare decisis. In Okonkwo v Federal Republic of Nigeria (2011) LPELR - 4723 (CA) Galinje,JCA (as he then was) now JSC had this to say: "Deliberate refusal to be so bound amounts to judicialimpertinence which is capable of enthroning judicial rascality and anarchy in the judicial hierarchy.This must be eschewed and discouraged by Judges".The attention of the Judge was drawn to the said cases and except where the trial Judge couldsatisfactorily distinguish the case being handled, by him from the decision of the Supreme Court, he isbound to follow it. See SPDC Nigeria Ltd v Ezeuku & Ors (2010) LPELR - 4911 (CA); Skye Bank Plc vKudus (2011) LPELR - 4962 (CA); Sogoalu v INEC & Ors (2008) LPELR - 4966 (CA); Ogboriefon vOgboriefon & Anor (2011) LPELR - 3740 (CA); Okeke v Okoli (2000) 1 NWLR (Pt.642) 641; Clement vIwuanyanwu (1989) 3 NWLR (pt.107) 39; Atolagbe & Anor v Awuni & Ors (1997) 9 NWLR (Pt.522) 536;CBN & Ors v Okojie (2014) LPELR - 22878 (SC). In the final analysis I hold that the appeal is meritoriousand succeeds. Appeal partly allowed. The portion of the Ruling of the Federal High Court, Jos deliveredon 18th April, 2016 by M.H Kurya J. in which the Court refused to grant reliefs 4, 5 and 6 is hereby setaside. In its place, I hereby grant reliefs 4 and 6 except relief 5. Having regards to the circumstances ofthe case, I will award N100,000.00 (One Hundred Thousand Naira Only) as nominal damages. SimilarlyI will award N100,000.00 as cost of the action. As regards the relief for apology the granting of reliefs 4and 6 would suffice, considering the nature of the allegation and the circumstances of the case. Everycase has to be considered according to the facts and its given set of circumstances."Per MSHELIA,J.C.A. (Pp. 11-16, Paras. D-A) - read in context

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A D Z I R A G A N A M S H E L I A ,

J.C.A. (Delivering the Leading Judgment): This is an

appeal against parts of the Ruling of the Federal High

Court, Jos (hereinafter referred to as the “Lower Court”)

delivered on the 18th April, 2016 coram M.H Kurya J.

The applicant by an originating motion dated 18th day of

March, 2016 and filed on 09/02/2016 at Federal High

Court, Jos sought for the following orders:

1. A declaration that the prolonged and unjustifiable

detention of the applicant from the 5th day of March, 2015

till date without being charged to any Court is a breach of

his Fundamental Right to Personal Liberty as enshrined in

Section 35 of the 1999 Constitution of the Federal Republic

of Nigeria (as amended).

2. A declaration that the degrading and inhumane

treatment of the applicant, and insanity state of the

applicant’s place of detention is a violation of the

applicant’s fundamental right to dignity of human person as

enshrined in Section 34(1)(a) of the 1999 Constitution of

the Federal Republic of Nigeria (as amended).

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3. An order compelling the respondent to release the

applicant unconditionally from detention, presently at the

facility of the respondent.

4. An order compelling the respondent to pay the

applicant the sum of N5,000,000.00 (Five Million Naira)

only as damages for the various breaches of the applicant’s

fundamental rights.

5. An order compelling the respondent to issue a public

apology to the applicant in two national dailies published in

Nigeria.

6. Cost of this action.

The originating motion is supported by statement in

support of the application for the enforcement of

Fundamental Rights which contained six grounds for the

application. The said application is also supported by a 24

paragraph affidavit deposed to by Fatima Yusuf the wife of

the applicant.

The Respondent on the other hand deposed to a 8

paragraph counter-affidavit by Cpl. Solomon Yusuf, Police

officer attached to legal prosecution section of CID, Jos.

The appellant as applicant before the lower Court filed an

action for the enforcement of his fundamental rights as

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guaranteed under the constitution. The facts of the

violation of the appellant’s fundamental rights have been

aptly captured in the affidavit supporting the originating

process and Exhibit “YY”. See pages 8-11 of the printed

record of appeal. After the Respondent filed counter

affidavit written addresses were filed by parties. The lower

Court in its considered Ruling found, that the appellant’s

fundamental rights were indeed breached and violated.

However, the lower Court refused to grant the

compensatory reliefs specially claimed by the appellant on

the basis that they were not proved.

Unhappy with part of the decision of the lower Court

Appellant lodge an appeal to this Court via his Notice and

Grounds of Appeal dated 23rd May, 2016 and filed on same

date, containing two grounds of appeal.

In compliance with the rules of Court, Appellant filed and

served his Appellant’s Brief of Argument. The Appellant’s

Brief settled by Nantok Dashuwar Esq. was dated 3rd day

of March 2017 and filed same date. Respondent failed to

file and serve its Brief of Argument within the time

stipulated by rules of the Court. Appellant sought and

obtained leave of

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Court on 29/11/2017 to hear the appeal on Appellant’s brief

alone.

When the appeal came up for hearing the Appellant’s

counsel adopted the Appellant’s Brief of Argument and

urged the Court to allow the appeal in part and set aside

order made refusing to grant reliefs 4, 5 and 6 and in its

place grant all the reliefs sought.

In the Appellant’s Brief of Argument two issues were

distilled for determination by the Court.

“1. WHETHER having found that the appellant’s

fundamental rights have been violated by the

respondent the appellant is not entitled to the grant

of compensatory damages in terms of reliefs 4,5 and 6

of the Appellant’s application (Ground 1).

2. WHETHER proof of damages is required on an

action for the enforcement of fundamental rights,

where the Court has already found and declared that

the fundamental rights of an applicant were indeed

violated. (Ground 2).

The only issues formulated for determination are the

appellant’s two issues. Same will be adopted for

determination of the Court.

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The two issues were argued together by the appellant. In

canvassing the issues formulated counsel reproduced the

reliefs 4, 5 and 6 sought before the lower Court. That after

considering the Appellant’s affidavit and the totality of the

Appellant’s case, the lower Court granted reliefs 1, 2 and 3

but refused to grant prayers 4, 5 and 6 on the ground that

they were not proved. Counsel submitted that the lower

Court having found that the respondent has violated two of

the fundamental rights of the appellant protected by the

constitution; it was bound to grant the compensatory reliefs

claimed in favour of the appellant and against the

respondent. That the principle of law put in the latin maxim

Ubi Jus Ubi Remedium f inds application in the

circumstances of this appeal. That it goes against the

tenets of the law regarding protection of fundamental

rights that an injury occurs without a remedy against same.

The principle Ubi Jus Ubi Remedium has several judicial

interpretations and applications. SeeEze & Ors v

Governor of Abia State & Ors (2014) LPELR – 23276

(SC). Learned counsel, submitted that this is an

appropriate case where the injury

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suffered by the appellant in the hands of the respondent as

a result of the oppressive conduct of its agents should not

only be reprimanded but adequate compensation should be

paid to the appellant. That it should be taken for granted

that the lower Court and this Honourable Court has the

inherent jurisdiction to do justice and to make any such

order to meet the justice of any case before it. See Nigeria

Social Insurance Trust Fund v Iyen & Ors (2014)

LPELR -22438 (CA). Counsel contended that the grant of

the reliefs 4, 5 and 6 of the Appellant’s application before

the lower Court is to further the interest of justice in the

face of the tyrannical and oppressive abuse of power by

agents and officials of the respondents. That in the spirit of

Chapter 4 of the Constitution and the Fundamental Rights

Enforcement Procedure Rules, this Court has the inherent

jurisdiction to order compensation in favour of the

appellant and against the Respondent as this will meet the

justice of this case in the circumstance.

Learned counsel submitted that the finding and declaration

made by the lower Court at page 37 of the printed record

shows clearly that the lower Court agreed that there

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was violation by the respondent of the fundamental rights

of the appellant. The finding automatically entitled the

appellant to the grant of compensatory reliefs. Reliance

placed on Skye Bank v Njoku & Ors (2016) LPELR –

40447 (CA) and Okoro v COP Enugu State & Anor

(2016) LPELR – 41025 (CA) which is apt and fits exactly

on the contention of the appellant in this appeal.

Learned counsel further submitted that the grant of reliefs

4, 5 and 6 of the appellant’s application at the lower Court

becomes automatic and a constitutional right immediately

the Court affirmed that the fundamental rights of the

appellant were violated. See Section 35(6) of the 1999

Constitution (as amended). By virtue of the authorities

cited above, the lower Court was bound to grant reliefs 4, 5

and 6 of the appellant’s application once reliefs 1, 2 and 3

were granted. That the position was canvassed by the lower

Court at page 17-20 of the record and supported by

authorities of superior Courts:Jim-Jaja v C.O.P, Rivers

State (2013) 6 NWLR (Pt.1350) 225 at 256 and

Shugaba Abdulrahman Dorman v Minister of Internal

Affairs (1981) 2 NCLR 459.

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Counsel submitted that the lower Court ought to have

followed the decision of the Supreme Court which is the

highest Court in the land. Reference made to Jim-Jaja v

C.O.P, Rivers State (supra) wherein the Court held that:

“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”.

That the refusal of the lower Court to follow and apply the

above decisions of the Supreme Court was an affront on the

authority of the Supreme Court and a contravention of the

trite principle of stare decisis. That it is elementary to state

that once a superior Court has made a pronouncement on

a subject all Courts below are bound by such a decision and

have no option but to follow same no matter how much they

may disagree with same. See Idakula v Adamu (2001) 1

NWLR (Pt.694) 339 para G-H.

Counsel urged the Court to apply the said decisions and

hold that the lower Court is in violation of the long

established principle of stare decisis. That from

the authorities and the

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provisions of Section 35(6) of the constitution it is clear

that the award of compensation by way of damages is a

consequential relief that follows automatically, once a

violation of a fundamental right is established. That the

relief need not be specifically claimed let alone proved.

Notwithstanding, the appellant specifically claimed both

compensation and apology in his claims before the lower

Court. Counsel contended that the lower Court was totally

wrong in law when it refused to award the compensatory

reliefs claimed by the appellant, notwithstanding the

categorical finding that the appellant’s fundamental rights

were violated. He urged the Court to resolve the two issues

against the respondent and in favour of the appellant.

This appeal is against part of the decision of the lower

Court refusing to grant the reliefs sought after finding as a

fact that there was a breach of Appellant’s Fundamental

Human Right. For ease of emphasis and clarity the Ruling

is reproduced hereunder thus:

RULING

“After listening to the learned counsel move their

originating motion. And after going over the process

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filed which were neither controverted or contradicted,

I am of the view and that the reliefs sought be and is

hereby granted.

Consequently orders 1, 2 and 3 are hereby granted. As

for orders 4 and 5 they are not granted because they

were not proved. It is trite law that damages must be

proved. No cost is awarded”.

The above ruling was not appealed against by the

Respondent. The Appellant was the claimant before the

lower Court. Appellant was the successful party who has

appealed against part of the decision. It is trite law that any

finding of facts made by a trial Court for which there is no

appeal remains valid and subsisting. In other words, where

a trial Court makes crucial findings of facts on an issue

before it and upon which the Judgment of the Court is

made, and such findings are not appealed against or

challenged on appeal, such findings remain valid and

subsisting. Such findings of fact made by the trial Court

and in which there is no appeal, are deemed admitted by

the Appellant or party against whom they were made, and

the Appellate Court will be right to act on it. See

Ebemighe v Achi (2011) 2 NWLR (Pt.1230) 65;

Amoshima v State (2011) 14 NWLR

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(Pt.1268) 530, CPC v INEC (2011) 18 NWLR (Pt.1279)

493; Isa v C.G.C Nigeria Ltd (2014) LPELR -23977

(CA), Kraus Thomson Org. v Unical (2004) 9 NWLR

(Pt.879) 631 and 653, Golden Const. Co. Ltd v Stateco

Nig. Ltd (2014) 8 NWLR (Pt.1408) 171 at 198,

Adewale & Anor v Adeola & Ors (2015) LPELR – 25972

(CA). It is clear that the Respondent did not contest the

appeal nor challenged the findings of fact made by the

lower Court. The Respondent by not challenging the finding

made by the trial Court, had admitted violating the

fundamental rights of the Appellant and is binding on the

Respondent. This Court cannot interfere with the finding of

fact not appealed against.

Now, the question is whether the learned trial Judge rightly

refused to grant reliefs 4, 5 and 6 in favour of the

Appellant. The complaint of the Appellant is based on the

said reliefs only. The question is whether damages must be

awarded for a breach of fundamental right. In Skye Bank

Plc v Emerson Njoku & Ors (2016) LPELR – 40447

(CA) the Court held that:

“In fundamental rights action, damages automatically

accrue, once the Respondent has been adjudged to

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have violated the Applicants fundamental rights. See

Ozide & Ors v Ewuzie & Ors (2015) LPELR – 24482

(CA), Ejefor v Okeke (2000) 7 NWLR (Pt.665)”.

In another related case of Okoro v Commissioner of Police

Enugu State & anor (2016) LPELR – 41025 (CA) the

Court observed thus:

“I am of the opinion and do agree with the learned

counsel to the appellant that the learned trial Chief

Judge having held that the appellant’s fundamental

right was breached and/or violated by the

Respondents ought to have awarded damages in his

favour to compensate or serve as a recompense for

the said injured rights. This position has been

affirmed by the Supreme Court, per Ogwuegbu, JSC in

the case of Okonkwo v Ogbogu (1996) LPELR – 2486,

(1996) 5 NWLR (Pt.499) 420 wherein His Lordship

stated as follows

“Any trespass to the person however slight, gives a

right of action to recover at any rate nominal

damages. Even where there has been no physical

injury, substantial damages may be awarded for the

injury to the man’s dignity and for discomfort or

inconvenience. Where liberty has been interfered

with, damages are

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given though he has not suffered any pecuniary

damages. It is also not necessary for the plaintiff to

give evidence on damages to establish his cause of

action or to claim any specific amount of damages”.

The crux of this appeal is the refusal of the trial Court to

award damages. It is trite law that where a trial Court

failed and/or neglected wrongfully to have awarded

damages, an appellate Court could grant same, after

finding or entering Judgment in favour of the Appellant.

This position has been reiterated by Supreme Court in the

case of Onwuka v Omogui (1992) 3 NWLR (pt.230) 393

@ 417, (1992) LPELR – 2719, where His Lordship

Babalakin, JSC observed thus:

“Where however the trial Court fails to consider the

question of damages an appeal Court is entitled to

proceed to assess the damages when it allows the

appeal without referring the case to the trial Judge

for that exercise”.

Put it differently where a trial Court did not make

assessment of damages, an appellate Court can make the

assessment itself, if there exists on record enough evidence

or sufficient materials on which the assessment can be

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based. See Olawale Sonibare v C.S Soleye (2009) 4-5

SC (pt.1) 1. In Jim-Jaja v C.O.P Rivers State (2013) 6

NWLR (pt.1350) 225 at 256 the Supreme Court also held

that compensation is automatic by the operation of law.

Following the decision in the authorities cited supra

especially the Supreme Court decision in Jim-Jaja v

Commissioner of Police Rivers State (supra) this Court

can interfere and award damages since the lower Court

had failed to award same. The lower Court made a grievous

error not to follow the decision of the Supreme Court which

is binding on all Courts by the principle of stare decisis. In

Okonkwo v Federal Republic of Nigeria (2011) LPELR

– 4723 (CA) Galinje, JCA (as he then was) now JSC had

this to say:

“Deliberate refusal to be so bound amounts to judicial

impertinence which is capable of enthroning judicial

rascality and anarchy in the judicial hierarchy. This

must be eschewed and discouraged by Judges”.

The attention of the Judge was drawn to the said cases and

except where the trial Judge could satisfactorily distinguish

the case being handled, by him from the decision of the

Supreme Court, he is bound to follow it. See SPDC Nigeria

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Ltd v Ezeukwu & Ors (2010) LPELR – 4911 (CA); Skye

Bank Plc v Kudus (2011) LPELR – 4962 (CA); Sogaolu

v INEC & Ors (2008) LPELR – 4966 (CA); Ogboriefon v

Ogboriefon & Anor (2011) LPELR – 3740 (CA); Okeke

v Okoli (2000) 1 NWLR (Pt.642) 641; Clement v

Iwuanyanwu (1989) 3 NWLR (pt.107) 39; Atolagbe &

Anor v Awuni & Ors (1997) 9 NWLR (Pt.522) 536;

CBN & Ors v Okojie (2014) LPELR – 22878 (SC).

In the final analysis I hold that the appeal is meritorious

and succeeds. Appeal partly allowed. The portion of the

Ruling of the Federal High Court, Jos delivered on 18th

April, 2016 by M.H Kurya J. in which the Court refused to

grant reliefs 4, 5 and 6 is hereby set aside. In its place, I

hereby grant reliefs 4 and 6 except relief 5.

Having regards to the circumstances of the case, I will

award N100,000.00 (One Hundred Thousand Naira Only)

as nominal damages. Similarly I will award N100,000.00 as

cost of the action. As regards the relief for apology the

granting of reliefs 4 and 6 would suffice, considering the

nature of the allegation and the circumstances of the case.

Every case

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has to be considered according to the facts and its given set

of circumstances.

UCHECHUKWU ONYEMENAM, J.C.A.: I have had a

preview of the judgment just delivered by my learned

brother ADZIRA GANA MSHELIA (PJ), JCA. I totally

agree with his lordship's reasoning and conclusion that the

appeal is meritorious and therefore succeeds. I too partly

allow the appeal.

I also set aside the decision of the Federal High Court, Jos

Judicial division delivered on 18th April, 2016 by M.H.

Kurya, J. in Suit No. FHC/J/CS/15/2016, wherein he

refused to grant reliefs 4 and 6.

I abide by all the consequential orders.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU

J.C.A.: I had the privilege and opportunity to preview the

draft of the lead Judgment delivered by my learned brother,

ADZIRA G, MSHELIA, JCA. and I agree in totality with the

reasoning and conclusion reached therein.

In consequence, I also find the appeal meritorious and it

therefore succeeds. The said portion of the Judgment of the

Federal High Court, Jos delivered on April 18th 2016

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appealed against is hereby set aside. I further abide by the

orders made therein.

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Appearances:

Nantok Dashuwar, with him J.J Gilbert, Esq. andP.J Miners, Esq. For Appellant(s)

Respondent absent though served ForRespondent(s)

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