‘Award of damages must follow from wrong done’
IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA BEFORE HIS LORDSHIP, HON. JUSTICE A.A.I. BANJOKO-JUDGE DELIVERED ON THE 28TH OF MARCH, 2017 SUIT NO: FCT/HC/CV/17/2016 BETWEEN: GARBA MOHAMMED APPLICANT AND 1. INSPECTOR GENERAL OF POLICE 2. THE O.C IC […]
IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP, HON. JUSTICE A.A.I. BANJOKO-JUDGE
DELIVERED ON THE 28TH OF MARCH, 2017
SUIT NO: FCT/HC/CV/17/2016
BETWEEN:
GARBA MOHAMMED
APPLICANT
AND
1. INSPECTOR GENERAL OF POLICE
2. THE O.C IC INTELLIGENCE RESPONSE TEAM RESPONDENTS
3. IPO MUYIWA AKINLOLUWA OLUWAKAMI ESQ FOR THE APPLICANT MALIQ DAVID TAIWO ESQ FOR THE RESPONDENTS
MAIN JUDGMENT
By way of an application brought under the Fundamental Rights Enforcement Procedure Rules, dated and filed on the 26th of October 2016, the applicant is praying the court for the following Orders:-
1. An Order of this Honourable Court declaring that the detention of the applicant by the 2nd respondent from the 28th of September 2016 to the 14th of October 2016, without an Order of Court and not charging the applicant to court as a violation of the applicant’s Fundamental Human Right.
2. An order of the honourable court restraining the respondents, its agent, servant and privies from further arresting, detaining or harassing the applicant in respect of this matter.
3. The sum of 10 million naira (N10,000,000) as damages against the respondents for the violation of the applicant’s Fundamental Human Right.
4. And for such further order or other orders the honourable court may deem fit to make in the circumstance The applicant, in support of the application, filed a Seventeen (17) Paragraph affidavit, deposed to by him, statement in support and a written address of counsel.
The respondents in turn filed a counter affidavit dated the 28th of November 2016, deposed to by the Inspector Muyiwa Saburi, the 3rd respondent, and documentary exhibits. Written address of counsel accompanied these processes.
The applicant in his written address formulated two issues for determination namely: –
1. Whether the applicant is entitled to the enforcement of his Fundamental Human Right to Human Dignity
2. Whether the respondents are not vicariously liable to pay exemplary and aggravated damages for the tort committed by the 2nd respondent and or its agents or Servants against the applicant.
In response, the respondents did not formulate any issues but responded to the issues raised by counsel to the applicant.
All the arguments and submission of counsel are on record. The applicant, who identified himself as a freelance land agent within Abuja, claims he was arrested on Wednesday 28th September 2016, by agents of the respondents and taken to the office of the Special Anti-Robbery Squad (SARS), Area 11 Abuja and detained for Seventeen (17) days. At the office, the 3rd respondent, the IPO, informed him that he was arrested regarding a fraudulent transaction that was reported to them, because he had linked the buyer and the seller.
The transaction in question happened sometime in June 2016, when one James, also a land agent, informed him that he has a particular Land for sale, and he, the applicant linked James to one Alhaji Abdullahi Shehu, who had earlier informed him that he was in search of a property to buy. Both James and Alhaji Abdullahi Shehu met, agreed on terms, and conducted a Search at the Abuja Geographical Information Systems on their own. When the transaction was concluded and the land was sold for N15 million, he then demanded his agency fee of 5% from both parties, being the sum of N750, 000.00 from each, and total the sum of N1, 500,000 was paid to him.
The Respondents, on the other hand claim that the applicant and some others have a criminal allegation of aiding, abetting, joint act, and theft of a dwelling house against them, via a Letter of Complaint made by one Mrs. Guyil Nankyer Jacqueline. Investigations revealed that one James Agbo, the applicant mentioned, an associate of the applicant, who is part of a four man squad, and who are uncertified, unregistered and unrecognised by any land organisation, specialise in land racketeering and Fraud within the FCT, under the guise that they are Land Agents.
The applicant having brought this claim has failed to go a step further to substantiate his claims that he was unlawfully detained for those number of days, or even present any evidence in support.
Based on this, the court shall not aid an indolent applicant but the vigilant, who will present a case before the court worthy of the reliefs he seeks. It is a basic and settled elementary principle of law that he who asserts must prove and that a claim ant must succeed on the strength of his case and not on the weakness of the defence. See Section 137 (1) of the Evidence Act, 2011, 14 FREMPONG II VS BREMPONG II (1952) 14 WACA, L3; OLOWU VS OLOWU (1985) 3 NWLR (PT 13) 372; FASHANU VS ADEKOYA (1984) 6 SC 83; COMMISSIONER OF POLICE VS OGUNTAYO (1993) 6 NWLR (PT 299); KOKORO-OWO VS OGUNBABI (1993) 6 NWLR (PT 313) 627. AHMED VS ABU & ANOR (2016) LPELR-40261 (CA) Per Wambai, J.C.A. (p.13, Paras. A-C) and OWIE VS SOLOMON IGHIWI (2005) 5 NWLR (PT.917) 184, NWAVU & ORS VS CHIEF OKOYE (2008) 18 NWLR (PT.1118) 29 SC.
The applicant having placed nothing before the court has failed to satisfy the level of proof required by the Law.
He needed to have done more by way of rebuttal and by positive evidence as to dates as the burden of proving his case rested solely on him, which he has failed to do.
Court’s decision
Therefore the court finds unmeritorious the prayer sought for an order declaring that the detention of the applicant by the respondent from the 28th of September 2016 to the 14th October 2016 without an order of court and not charging the applicant to court as a violation of his rights and fails accordingly.
As regards the prayer seeking an order restraining the respondents, their agents, servants and privies from further arresting, detaining or harassing the applicant in respect of the matter in issue, since all parties before the court have acknowledged the fact that the investigation is ongoing, it serves little or no point to restrain any further arrests for questioning for the purposes of charging the matter to court.
The court shall not make any such an order, as such an order shall be interfering against the lawful duties of the Respondent within the purview of Section 4 of the Police Act, and such is found unmeritorious. Had the arrest been unlawful or unjustifiable, then this court would not have hesitated to grant the applicant’s prayer in this regard, but in this instant case, that is not the case and this is not the order.
Finally, as regards the relief seeking the sum of N10 million as damages against the Respondents for the violation of the Applicants right, which is the second issue raised by this court, it is clear from the entirety of fact presented before the court that the respondent acted within the bounds of their duties, and carried out the arrests and investigation based on the provisions of the Law. The applicant, who is within his rights to bring a claim for the infringement of his right, has not justified or shown the wrongs done to him, or what he suffered as a result of a wrong done to him to deserve the award.
It is trite law that damages are presumed to follow from the type of wrong complained of; see the case of GARRI V. SEIRAFINA NIG LTD (2008) ALL FWLR (PT 399) 434 AT 454, PARAS C -D (CA)PER ARIWOOLA JCA. General damages are such that the law will presume to be the direct natural and probable results of the acts complained of which need not be strictly proved unlike special damages. See also the cases of UTC (NIG.) PLC VS PHILIPS (2012) 6 NWLR (PT.1295) 136 @ 46; and ZENITH BANK PLC. VS. EKEREUWEM (2012) 4 NWLR (PT.1209) 207 @ 219. FELIX GEORGE and COMPANY LTD V. AFINOTAN & ORS. (2014) LPELR-22982 (CA) PER JOMBO-OFO, J.C.A. (P. 52, PARAS. B-D).
Although general damages need not be proved they must flow from a tort, or wrong done.
In this instant case, the court finds no wrong done to the applicant as his arrest was lawful and part of an ongoing investigation.
Therefore, this prayer also is found unmeritorious and no award is made as to costs for damages.
In conclusion, the case of the applicant fails for lack of proof and is accordingly dismissed.