Claim for exemplary damages must be shown to have resulted from the malicious act of a party before it can be awarded

EMMANUEL UKPAI v. MRS. FLORENCE OMOREGIE & ORS
CITATION: (2019) LPELR-47206 (CA)

In the Court of Appeal
(Benin Judicial Division)

ON FRIDAY, 5TH APRIL, 2019
Suit No: CA/B/463/2013

Before Their Lordships:

HELEN MORONKEJI OGUNWUMIJU, JCA
SAMUEL CHUKWUDUMEBI OSEJI, JCA
MOORE ASEIMO ABRAHAM ADUMEIN, JCA

Between

EMMANUEL UKPAI——- APPELLANT/CROSS-RESPONDENT

And
1. MRS FLORENCE OMOREGIE ———- RESPONDENT
2. PC. SYVESTER UGIAGBE (448504) (IPO EVBUOTUBU POLICE STATION)
3. INSPECTOR FRIDAY (INSPECTOR CRIME, EVBUOTUBU POLICE STATION) ——RESPONDENTS/CROSS-APPELLANTS
4. S.P GABRIEL EZEH (DIVISIONAL POLICE OFFICER, EVBUOTUBU POLICE STATION)
5. COMMISSIONER OF POLICE, EDO STATE
LEAD JUDGMENT DELIVERED BY HELEN MORONKEJI OGUNWUMIJU, J.C.A.

FACTS OF THE CASE
This appeal is against the judgment of the Federal High Court, Benin delivered by Justice P.I. Ajoku on September 20, 2013. The facts of the case are that the Appellant/Cross-Respondent, a car dealer, alleged that he was arrested by the 2nd – 4th Respondents/Cross-Appellants because of the instigation made to them by the 1st Respondent that he stole her RAV-4 car. The allegation was premised on the fact that the 1st Respondent saw her stolen car in the custody of the Appellant/Cross-Respondent. The Appellant/Cross Respondent was thereafter arrested and taken to the State Criminal Investigation Department where it was revealed in a subsequent investigation carried out by the O.C Anti-vehicle theft that a difference existed in the Chassis and Engine Number of the RAV-4 car found in the custody of the Appellant/Cross-Respondent who is a car dealer and that of the car of the 1st Respondent which was alleged to have been stolen by the Appellant/Cross-Respondent. Consequently, the Police discharged the Appellant/Cross-Respondent and dismissed the allegation against him.

Thereafter, the Appellant/Cross-Respondent alleged that he suffered injury to his reputation, which affected his business fortunes and the exalted positions he held in the society. The Appellant/Cross-Respondent then filed an application for the enforcement of his fundamental right at the trial Court.

The learned trial Judge found in favour of the Appellant/Cross-Respondent against the 2nd – 5th Respondents at trial and ordered that the sum of N300, 000 to be paid to him as damages by the said 2nd – 5th Respondents at trial. Dissatisfied with the judgment, specifically the quantum of damages, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION
The Court determined the main appeal on the Appellant/Cross-Respondent issue as follows:
“1. Whether the general damages awarded against the 2nd – 5th Respondents by the trial judge was adequate having regards to the injuries suffered by the Appellant on account of the acts of the 2nd – 5th Respondents.” In determining the cross-appeal, the Court crystallized the issues set forth by the 2nd – 5th Respondents/Cross-Appellants into a sole issue as follows:

“2. Whether it was proper for the learned trial Judge to rely on all the affidavit evidence of the Appellant/Cross-Respondent in arriving at its decision.”

APPELLANT/CROSS-RESPONDENT SUBMISSION
On issue one, the Appellant/Cross-Respondent submitted that there was proper evaluation of the affidavits before the trial and there was nothing to reconcile by oral evidence. This is because the parties were given room to adumbrate on their written addresses and file some further authorities, if needed. The Appellant/Cross-Respondent further submitted that there was no injustice occasioned to the Cross-Appellants because of the reliance placed on the further-affidavit that was filed out of time.

On issue two, the Appellant/Cross-Respondent submitted that it is the position of the law that the Court should award exemplary damages once it is found that the 2nd – 5th Respondents/Cross-Appellants’ action was oppressive, arbitrary or unconstitutional. Furthermore, that it is the position of the law that a successful party is entitled to enjoy the fruits of his litigation. According to the Appellant/Cross-Respondent, he cannot be said to have enjoyed the fruits of the judgment if the award of damages is ridiculously low as he expended more than N300, 000 on solicitors fees during the prosecution of the action at the trial.

2ND – 5TH RESPONDENTS/CROSS-APPELLANTS SUBMISSION
On issues one, the 2nd – 5th Respondents/Cross-Appellants submitted that the trial Judge in this case erred when he relied on the Appellant/Cross-Respondent’s further-affidavit that was filed without leave of Court and allowed it to form part of the ratio decidendi of his judgment. It was further argued that by Order II Rule 7 of the Fundamental Rights Enforcement Procedure Rules, an Applicant who is served with a Respondent’s written address might file within 5 days of being served, an address on point of law, which may be accompanied by a further-affidavit. It was also argued that a further-affidavit would only be permitted if it deals with new matters arising from the Respondent’s counter-affidavit. Furthermore, the 2nd – 5th Respondent/Cross-Appellant submitted that the trial Court did not advert its mind to the fact that leave of Court must be sought and obtained when an affidavit touched on new issues/re-argument. It was argued that there were material contradictions in the affidavit evidence of the Appellant/Cross-Respondent and to this extent, the trial was bound to invite parties to be heard orally in order to clear the issues and resolve the conflict and by not doing this, the Court erred.

On issue two, the 2nd – 5th Respondents/Cross-Appellants submitted that the award of general damages is a matter within the precinct of the trial Court which an Appellate Court cannot tamper with except where the trial judge acted under mistake of law or fact, acted in disregard of the principles of law, acted under a misapprehension of facts, took irrelevant matters into account, when injustice would result if the Appellate does not interfere and when the amount awarded is either ridiculously low or relatively high as to be an erroneous estimate of the damages.

RESOLUTION OF ISSUES
The Court in resolving issue one stated that Order 6 Rule 3 of the Fundamental Rights (Enforcement) Procedure Rules talks only about the need for leave to amend the original application and in fact gives the leave to allow further-affidavit to be used where they deal with new matters arising from the counter-affidavit of the Respondent. Accordingly, the learned trial judge was right in considering the further-affidavit and that no special leave need be sought nor obtained by the Applicant to file a further-affidavit. The Court went further to say that there is no time limit to file a further-affidavit. However, by Order 2 Rule 6, the 2nd – 5th Respondents/Cross-Appellants who were the Respondents at trial were the ones obliged to file a counter-affidavit within 5 days of service of the application. The 2nd – 5th Respondents/Cross-Appellants at trial had adequate opportunity to file a further counter-affidavit, which they failed to do. In other words, by Order 9, failure to file a process within the time allowed by the Rules is treated as an irregularity, and not as a nullifying factor, except it relates to the commencement of the application, or that the subject matter is not within Chapter 4 of the Constitution.

The Court, resolving the issue against the 2nd – 5th Respondents/Cross-Appellants held that the further-affidavit filed by the Appellant/Cross-Respondent cannot be said to be incompetent because the process complained of (in this case the further-affidavit) does not relate to the mode of commencing the application nor did it relate to a subject matter which is not within the ambit of the provisions of Chapter 4 of the Constitution or the African Charter on Human and People’s Rights. That there were no conflicting affidavit evidence necessitating the calling of oral evidence in this case since most of material points in issue like the reason and manner of the arrest of the Appellant/Cross-Respondent were uncontroverted.

In resolving issues two, the Court while speaking on the nature of exemplary damages, stated that exemplary damages, otherwise known as punitive damages is usually awarded to meet the end of punishment. Thus, a claim for exemplary damages need not be expressly pleaded. It is sufficient if the facts pleaded supports the award of exemplary damages and the claim for exemplary damages must be shown to have resulted from the malicious act of a party before it can be awarded. According to the Court, it is well settled law that in a fundamental rights case, the award of damages naturally flows from the violation of the right alleged to have been breached. Thus, once it is established that the right of a person has been violated and infringed upon, compensatory and in some cases, exemplary damages would be attracted. Also, that consideration must be given to the circumstances in which the Appellant was arrested and whether he was able to prove same. According to the Court, the argument of the 2nd – 5th Respondents/Cross-Appellants that the Appellant/Cross-Respondent failed to give sufficient evidence of damages to be awarded cannot be tenable as the Appellant/Cross-Respondent’s affidavit evidence and the 2nd – 5th Respondents/Cross-Appellants’ counter-affidavit showed that the Appellant/Cross-Respondent was arrested from his office/show room on the allegation that the 1st Respondent’s RAV 4 car was stolen by him. The Appellant/Cross-Respondent alleged that he was handcuffed and he exhibited the photograph that was taken by his neighbor to the further-affidavit and that Exhibit AA1 which is the photograph substantiated the Appellant/Cross-Respondent’s allegation that he was handcuffed.

The Court stated that from the affidavit evidence, it is clear that the 2nd – 5th Respondents/Cross-Appellants were reckless in the manner in which the arrest of the Appellant/Cross-Respondent was made. The chassis number of the vehicle was not cross-checked before the Appellant/Cross-Respondent was arrested and there was no proper investigation before the arrest.

In resolving the issue in favour of the Appellant/Cross-Respondent, the Court held that in view of the recklessness of the Police in arresting the Appellant as a common criminal before they investigated the report against him, the quantum of damages awarded to assuage his sufferings was too small in the circumstances. The sum of N1, 000,000 exemplary damages was awarded in favour of the Appellant/Cross-Respondent.

HELD
In conclusion, the Court held that the appeal had merit, however the cross-appeal was dismissed as having no merit.
Appearances:
U.S. Musa, Esq. – For Appellant/Cross-Respondent
J. S. Ohiafi, Esq. – For the 2nd-5th Respondents/Cross Appellants
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