UNIVERSITY OF CALABAR & ORS V ATTAH

UNIVERSITY OF CALABAR & ORS V ATTAH


IN THE COURT OF APPEAL
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR

ON MONDAY, 9TH JANUARY, 2017


Appeal No: CA/C/279/2013

CITATION:

Before Their Lordships:

IBRAHIM MOHAMMED MUSA SAULAWA, JCA

MOJEED ADEKUNLE OWOADE, JCA

CHIOMA EGONDU NWOSU-IHEME, JCA


BETWEEN

UNIVERSITY OF CALABAR
EMMANUEL IGENG
OKON ETINI USANI
ANTHONY BASSEY
(APPELLANTS)

AND

MR. SYLVESTER EFFIONG ATTAH
(RESPONDENT)


PRONOUNCEMENT


A. APPEAL
1. Interference with Award of Damages – The exceptional cases that will allow an appellate Court to interfere with award of damages made by a trial Court
Circumstances in which an appellate court will interfere with award of damages made by a trial Court

It is the law, that general damages are generally presumed by law. The assessment and award of general damages are subject to the inherent jurisdictional competence nay discretionary power of the Court. However, such a discretionary power must be judicially and judiciously exercised. On the part thereof, the appellate Court has no business interfering with the award of damages by the Court below, unless in very exceptional cases, where-

(a) The exercise of discretion by the trial Court was done arbitrarily rather than judicially and judiciously;
(b) The trial Court exercise of discretion was predicated upon a wrong principle of law;
(c) Such an exercise of discretion was not based on the evidence on record and therefore perverse.
d) The exercise of discretion therefore, the Court took into account irrelevant matters or disregarded relevant matters.
(e) Where the amount awarded is either manifestly too high, or maliciously low.
See UAC (Nig) Plc vs. Sobodo (2006) ALL FWLR (pt. 329) 87 @ 896 Paragraphs A-E; Asesa V. Ekwenem (2009) ALL FWLR (Pt. 329) 838 @ 860 Paragraphs D-H; Min. Internal Affairs Shugaba Darman (1982) 3 NCLR 915 @ 1008 – 1009. Per SAULAWA, JCA. read in context

B. EVIDENCE
2. Evaluation of Evidence – When the appellate Court will be charged with the responsibility of re-evaluating evidence
Duty of the trial Court as regards perception, evaluation and findings of fact; the duty of an appellate court therein in a case of failure

The law is fundamentally trite, that every piece of evidence duly admitted in the course of proceedings must be tested for credibility, weight or cogency by the trial Court. Thus, where a trial Court fails to evaluate, or erroneously appraises the evidence before it, an appellate Court has an onerous responsibility to reappraise, re-evaluate the evidence with a view to reaching a fair and just decision to the parties: Anzaku v. Governor, Nasarawa State (2006) ALL FWLR (Pt. 303) 308 @ 351 – 352 Paragraphs A-B. Per SAULAWA, JCA. read in context

C. JUDGMENT AND ORDER
3. Perverse Decision – The factors that will make the findings of a Court perverse
Instances where the decision of court would be regarded as perverse

Indeed, an appellate Court has a duty to interfere with the decision of a Court below, where such decision is apparently perverse, not supported by evidence on record, or has occasioned a miscarriage of justice. Invariably, a finding of a Court could be said to be perverse, where:

(a) It is speculative and not predicated on any cogent evidence; Or
(b) The Court took into account matters which it ought not to have taken into account; Or
(c) The Court shut its eyes to the obvious.

See Hamza vs. Kure (2010) ALL FWLR (pt. 539) 1070 @ 1090 Paragraphs A-E; INEC vs. Okore (2010) ALL FW R (pt. 516) 449 @ 460 Paragraph G-A; Baba Ahmed vs. Adamu (2009) ALL FWLR (Pt. 473) 257 @ 1260. Per SAULAWA, JCA. read in context


LEAD JUDGMENT DELIVERED BY SAULAWA, JCA


The instant appeal is against the judgment of the Federal High Court, Calabar Judicial Division, delivered on April 29, 2013 in Suit No. FHC/CA/M37/2012. By the said judgment, the Court below coram: P.M. Ayua, J; granted the declaratory relief for gross and flagrant violation of fundamental rights and awarded N3,000,000.00 damages in favour of the Respondent (Plaintiff).

BACKGROUND FACTS

The genesis of the instant appeal is traceable to March 15, 2012. That was the day the Respondent filed the Originating process (Motion on Notice) pursuant to Order 2 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, and the inherent jurisdiction of the Court below, thereby seeking the following reliefs:

1. A DECLARATION that the act of the Respondent in the circumstances of this case amounts to a gross and fragrant violation of the Applicant’s fundamental rights as guaranteed by Chapter four of the 1999 Constitution of the Federal Republic of Nigeria (As amended).

2. AN ORDER of perpetual injunction restraining the Respondent, his agents or privies from further molestation and intimidation to the person of the Applicant.

3. AN ORDER directing the Respondent to pay to the Applicant the sum of N100,000,000.00 (One Hundred Million) only being general damages for trauma and injury suffered by the Applicant. See page 2 of the record of appeal.

Not unnaturally, the Appellants filed a counter affidavit, wherein they controverted the Respondent’s claim.

The suit proceeded to trial at the end of which the Court below delivered the vexed judgment to the conclusive effect thus:

The Applicant’s application accordingly succeeds substantially and I hereby make the following orders:

1. A Declaration that the act of the Respondents, particularly, the 2nd to the 5th Respondents in inviting the applicant for questioning over a harmless statement expressing his opinion among friends over a public issue and then detaining him at the Security Unit of the 1st Respondent from 11.15am to 5.50pm on the 7th September, 2011 is illegal, unlawful and a violation of Section 35(1) and Section 39(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended.

2. General damages of N3 million (Three Million Naira) only in favor of the Applicant against the Respondents for the violation of Applicant’s fundamental rights by the Respondents.

SGD:

Hon. Justice Phoebe M. Ayua,

JUDGE

29th April, 2013.

See pages 26 – 27 of the record.

The Appellants were utterly dissatisfied with the judgment in question, thus filed their notice of appeal on July 24, 2013 in the Court below. The appeal having been entered on September 23, 2013, the parties proceeded to file the respective briefs of argument thereof. Most particularly, the Appellants’ brief was filed on April 3, 2014, but deemed properly filed and served on January 1, 2016. It spans a total of 21 pages. At page 3 thereof, two issues have been couched:

1. Whether the learned trial Judge was right, having regard to the facts and circumstances of the case, in holding that the Appellants violated the Respondent’s rights to freedom of speech and personal liberty. (Grounds 1, 2 and 3).

2. Whether the award of N3 million as general damages was proper, not excessive and or arbitrary. (Ground 4).

The issue No. 1 is canvassed at pages 3 – 15 of Appellant’s brief, to the effect that the Court below failed to take into account all the evidence before it. Alluding copiously to Paragraphs 2 and 4 of the Respondent’s counter affidavit, it was further submitted, that there was enough evidence before the Court below that even though the students had been sent home and the 1st Appellant closed [down], the atmosphere was still tense, and there were rumours of reoccurrence of the riot.

Further submitted, that the Court below overlooked the evidence of the tense atmosphere on the 1st Appellant’s campus, the security report that students and even non-students were holding secret meetings to rekindle the riot, and the boisterous comments and behaviour of the Respondent attracted members of the University community.

It was contended, that the finding and conclusion of the Court below are perverse. That this Court is obliged to reappraise the evidence and reach a decision that is fair and just to the parties in the case: Anzaku vs. Gov. Nasarawa State (2006) ALL FWLR (pt. 303) 308 @ 351 – 352 Paragraphs H-B; Hamza vs. Kure (2010) ALL FWLR (Pt. 539) 1070 @ 1090 A-E; INEC v. Orobo (2010) ALL FWLR (pt. 515) 448 @ 460 G-H; Buba Ahmed vs. Adamu (2009) ALL FWLR (Pt. 473) 1257 @ 1260.

Paragraphs 9 & 10 of the Respondent’s counter affidavit were referred to, to the effect that no evidence was adduced to prove that the Appellant was detained unlawfully for six hours; the assertion without proof is useless. See Sections 131, 132 and 133 of the Evidence Act, 2011; KLM Royal Dutch Airlines vs. Taher (2014) 2 NWLR (Pt. 1393) 137 @ 194-195 Paragraphs H-A; Jega Vs. Aliu (2010) ALL FWLR (Pt. 1066) @ 1069.

Further contended, that the Court below failed to call for oral evidence to resolve the conflict in the parties’ affidavit and counter affidavit. Thus, the case ought to have been dismissed. See Okpara vs. Gusau (200-) ALL FWLR (pt. 450) 80 @ 823 G-H; Afribank Nig. Plc v.. Adigun (2009) ALL FWLR (PT. 476) 2009 @ 2026 – 2027 E-B; Hassan vs. EFCC (2014) 1 NWLR (pt. 1389) 607 @ 630 – 631 F-E; et al.

The Court is urged to resolve the issue No. 1 in favour of the Appellants.

The issue No. 2 is canvassed at pages 15 – 18 of the said brief, to the effect that the Court below did not even attempt to rationalize the award of N3 million. No reference was made to the facts, circumstances, and the guiding principles governing award of damages. See Minister of Internal Affairs Vs. Shugaba Abdurarahman Darman (1982) 3 NLR 915 @ 1008 – 1009.

Further submitted, that the award of N3 million by the Court below being clearly a windfall, deserves the interference or downward review by this Court assuming, but not conceding, that the Respondent’s rights were breached by the Appellants. See Ighrerinivo vs. SCC Nig. Ltd. (2012) ALL FWLR (pt. 100) 1241 @ 1255 – 1260.

The Court is equally urged to resolve the issue No. 2 in favour of the Appellants.

Conclusively, the Court is urged to allow the appeal, and set aside the decision of the Court below.

On the other hand, the Respondents brief, deemed properly filed and served on January 1, 2016, spans a total of 21 pages. At page 4 of the said brief, the Appellants’ two issues have been adopted for the determination of the appeal. The issue No. 1 is canvassed at pages 5 – 15 of the brief, to the effect that the Appellants’ argument on the Criminal Procedure Act, as it relates to powers of arrest, has no nexus with the instant case.

It was submitted, that all the submissions of the Appellants in that respect are at the very best merely academic and moot issues. See Akinfolarin vs. Akinola (1994) 3 NWLR (pt. 335) 659; Dike vs. Nzeka (1986) 4 NWLR (pt. 34) 144; Arinze Unanah vs. Obong Victor Attah (2006) 9 SCNJ 75.

Further submitted, that the Court below considered every piece of evidence adduced by parties in arriving at its decision. It never disregarded any part of the Applicants’ evidences, contrary to the Appellants’ submissions. Moreover, the evidence that the 1st Appellant was closed down and all students sent out, was uncontroverted. It is the law that evidence which remains uncontroverted can be acted upon. See Omoregbee vs. Lawani (1980) 3-4 SC 108, et al.

On the Respondent’s detention, it was contended that there’s no such cleavage dichotomy, distinction between an action for false imprisonment and an action for infringement of fundamental rights to personal liberty. That a breach of a person’s fundamental rights to personal liberty would ultimately amount to false imprisonment, as both are the same. See Jim Jaja vs. COP (2011) 2 NWLR (pt. 231) 375 @ 394; Sections 35 & 39 of the 1999 Constitution.

The Court is urged to resolve the issue No. 1 in favour of the Respondent.

The No. 2 issue is canvassed at pages 15 – 18 of the Respondent’s brief, to the effect that the award of damages to the tune of N3 million as against N100 million cannot be regarded as excessive and or arbitrary.

It was submitted that an appellate Court must be wary of interfering with the award of damages made by a Court, unless it proceeded upon a wrong principle of law, or the award is manifestly excessive. See FBN vs. Aboko (2007) 1 NWLR (pt. 1014) 251 B-C; Uyo 1 vs. Egware (1994) 1 ALL NLR (pt. 1) 293; et al.

The Court is urged to equally resolve the issue No. 2 in favour of the Respondent.

Conclusively, the Court is urged upon to dismiss the appeal with substantial cost, and accordingly affirm the decision of the Court below.

I have accorded an ample consideration upon the nature and circumstances surrounding the appeal, the submissions of the learned counsel, contained in their respective briefs vis-a-vis the record of appeal, as a whole. In my view, the two issues raised and canvassed in the Appellants’ brief are very much apt for the determination of the appeal. I hereby adopt them.

ISSUE NO. 1

The first issue raises the question of whether or not the Court below was right, having regard to the facts and circumstances of the case, in holding that the Appellants violated Respondent’s right to freedom of speech and personal liberty. The said issue has been distilled from grounds 1, 2 and 3 of the notice of appeal.

Instructively, at page 25, lines 13 – 22, of the Record of Appeal, the Court below found:

In the light of the foregoing, it is my finding and I so declare that from the totality of the evidence placed before this honorable Court, the Respondents have failed to adduce any reason to establish the legality of the detention of the Applicant over his comments on an issue of public interest, in the midst of friends on the 7th day of September, 2011 on the other hand the Applicant has substantially made out case against the Respondents for the violation of his fundamental rights enshrined in the Constitution of the Federal Republic of Nigeria, particularly Sections 35(1) and 39(1) of the Constitution of the Federal Republic of Nigeria, 1999.

With possible deference, the above finding of the Court below cannot be correct, as it’s not supported by the circumstances surrounding the case and the evidence on record. The case of the Respondent as depicted by the affidavit in support of motion on notice is that while on the premises of the 1st Appellant, he made a statement to the effect that:

Even though I do not know the details leading to the riot by the students but from what I gathered it appears to me that the matter was not properly managed by the University authorities.

That consequent upon that statement, the 2nd Appellant became furious and reigned abuses at the Respondent. That he was then dragged to the 1st Appellant’s Security Post where the 4th Appellant became violent and slapped him severally on the face. He was also handcuffed and his both legs chained and tied to a table. He was beaten to “a pulp with bare hands, belts, batons, plastic rods, etc and left me gasping for breath.” And that he was kept in chains from 11.15am until 5.50pm when he was evacuated to the Airport Police Station.

See Paragraphs 8-28 of the Affidavit in support of the Motion on Notice.

Contrariwise, in reaction to the Respondents’ assertion in question, the Appellants averred in their joint counter affidavit, to the effect that the Respondent’s statement generated a heated argument between him and others at the time when the atmosphere in the 1st Appellant’s campus was very tense and potentially explosive as a result of a very destructive students crisis that had just occurred. That the Appellants in order to forestall a breach of the peace, apprehended and promptly handed over the Respondent to the police. See Paragraphs 2, 4, 5, 6, 7, 8, 15 & 16 of the Appellants’ counter affidavit:

2. That on 25th to 26th of August, 2011 there was unprecedented and vicious students riot in the 1st Respondent whereby properties worth more than N150,000,000.00 (One Hundred and Fifty Million Naira) only were destroyed. Several vehicles set ablaze; vehicle windscreen and over 600 window louvers shattered; computers and laptops from the National University Commission (NUC) data base were looted. This riot brought down the University community on its knees. The 1st Respondent was closed and all students sent out immediately. The University atmosphere was tensed and there was rumours of reoccurrence of the riot. There was a security report that students and even non-students were holding secret meetings to rekindle the riot. This was the situation at the time the Applicant came into the 1st Respondent.

3. That on 07/09/2011, at about 10.00a.m, I was within the University premises carrying on assignment given to me by the Academic Staff Union of Universities (ASUU) of the 1st Respondent’s Branch. The applicant drove into the University, in company of one Iwara Okoi whom we were all classmates. As we were exchanging pleasantries, suddenly, the Applicant demanded to know from me what the University was doing about the students riots.

4. That as I was offering explanation to the Applicant, the Applicant went on to say loudly to the hearing of people around that “other VC’s have been very efficient in managing problems but this incumbent is incompetent.” At this point, I asked the Applicant whether he could determine when crises occur in a family. I asked the Applicant to guard his utterances especially in this tense moment, but the Applicant became more boisterous and abusive on the Vice-Chancellor of the 1st Respondent and the Management. The Applicant’s loud comments and actions attracted the attention of members of the University community who advised that the security be invited to intervene in the matter.

5. That the Applicant started threatening me saying. “I know your home and I will trace you to your home and deal with you. Don’t you know me? I was a sad boy in this school and I also tell you that my brother is a big man in Akwa Ibom State House of Assembly. I shall drag the University of Calabar to Court and make money from the University if anything funny happens to me.”

6. That as the Applicant was still shouting, a security staff passed and saw what was happening went and reported the incidence at the security Unit. The security invited the Applicant to its office and the Applicant willingly followed. That nobody dragged or forced the Applicant to come to the security office of the 1st Respondent.

7. That I have never said I was going to deal with the Applicant. That the Applicant was openly and loudly indicting the University Management and also inciting the University community against the Management. The Applicant’s comments and utterances were not fair comments on public issues but aimed at refueling the crises and riot from which the University had not recovered at that time.

8. That at this point, the panel set up to look into the riot had called for memoranda from the University community. The Applicant’s negative and injurious comments were aimed at influencing the testimonies of the University community against the Management…

9. That I followed the Applicant and the security-man who invited the Appellant to the Security Unit and was there through to when the Applicant was handed to the police. The 3rd Respondent did not use any foul word or comment on the Applicant. The Applicant was never handcuffed or locked in chain. Nobody beat or assaulted the Applicant at the security unit. The Applicant was never asked to remove his shoes or any item of clothing from his body. The security unit called the police immediately upon discovering that the Applicant does not belong to the University Community…

15. That the Applicant did not suffer any humiliation in the hands of any of the Respondents. The Applicant has never been traumatized by the acts of the Respondents and the Respondents have never given the applicant any reason to be traumatized. Rather, it was the Applicant who intended to fuel the riot and crises in the 1st Respondent by the Applicant’s callous, reckless and unguided utterances at the time when the security atmosphere in the 1st Respondent was tense.

16. That the Respondents did not violate any of the Applicant’s Fundamental Human Rights whether enshrined in the Constitution or in any charter or statute.

Thus, it is obvious from the depositions contained in the affidavit and counter affidavit of the respective parties, that issues have indeed been joined regarding the question of whether or not the arrest of the Respondent was in violation of the law. Most remarkably, the Court was of the opinion, rightly in my view, that the Respondent has failed to establish any credible evidence of inhuman degrading treatment meted out thereto by the Appellants. As aptly found by the Court below:

But as pointed out by the Respondent, the pictures attached as Exhibits herein do not bear any dates and the medical report also bears a date in November of 2011 whereas the acts complained of took place in September, 2011. It is therefore difficult for me to find the nexus between the inhuman and degrading treatment and the pictures and medical report which purport to provide the evidence that the Applicant was indeed manhandled by the Respondents on the 7th day of September, 2011. Since the Applicant has failed to provide credible evidence of inhuman and degrading treatment meted out to him by the Respondents, I find and hold that the Applicant has failed to prove, from the totality of the evidence before this Court that his right to the dignity of his human person had been violated by the Respondents. See pages 24 (last line) to 25 (lines 1-12) of the Record.

I would want to hold, that the above finding of the Court below is cogent and duly supported by the evidence on the records.

However, the foregoing finding thereof notwithstanding, the Court below in its wisdom still went further to hold:

In the light of the foregoing, it’s my finding and I so declare that from the totality of the evidence placed before this honorable Court, the Respondent’s have failed to adduce any reason to establish the legality and constitutionality of the detention of the Applicant over his comments on an issue of public interest in the midst of friends, on the 7th day of September, 2011 on the other hand, the Applicant has substantially made out a case against the Respondents for the violation of his fundamental rights enshrined in the Constitution of the Federal Republic of Nigeria, particularly Sections 35(1) and 39(1) … 1999.

All the statutory provisions and judicial authorities relied upon by the learned counsel for the Respondents are good authorities in deserving circumstances and situations but not in this case in hand where the Respondents capriciously detained the Applicant over a harmless statement without justification whatsoever.

With possible deference, the above finding is far from being supported by the circumstances surrounding the case vis-a-vis the evidence on record as a whole. Most regrettably, the Court below in arriving at the above finding does not seem to have taken into account of the entire evidence on record, especially the depositions contained in the Appellants’ counter-affidavit, copiously alluded to above.

It is so apparent from the finding thereof, that the Court below merely relied upon Paragraph 2 of the counter affidavit in complete isolation and utter disregard of the other paragraphs therein. Yet, it’s axiomatic, that in weighing the evidence of the respective parties on the imaginary scale of justice, the Court is under an onerous duty to consider every admissible evidence. As copiously alluded to above, Paragraph 2 of the counter-affidavit is to the effect that the 1st Respondent’s campus was closed and all students sent out indefinitely; and that:

2… the University atmosphere was tensed and there were rumours of reoccurrence of the riot. There was a security report that students and even non-students were holding secret meetings to rekindle the riot. This was the situation at the time the Applicant came into the 1st Respondent.

What’s more, Paragraph 4 of the said counter affidavit is equally to the effect:

4. I asked the Applicant to guard his utterances especially in this tense moment but the applicant became more boisterous and abusive on the Vice-Chancellor, 1st Respondent and the Management. The Applicant loud comments and actions attracted the attention of members of the University community who advised that the security be invited to intervene in the matter.

Thus, in view of the foregoing salient averments, there is an ample evidence before the Court below to the effect that even though the students had in fact been sent home and the 1st Appellant closed all academic activities, the atmosphere within the University community was still tense and there was a report that the students and even non-students alike, were holding nocturnal (secret) meetings to rekindle the riot. These facts deposed in the counter affidavit have not been frontally challenged by the Respondent in the further affidavit thereof.

It has equally been averred in the said counter affidavit, that the 1st Appellant was not made up of only students. That the Respondent’s adverse, loud and boisterous comments and actions had equally attracted the attention of some other members of the University community. Thus, against the backdrop of the foregoing postulation, the comments made by the Respondent could not be rightly regarded as a fair public comment.

Indeed, it is notorious fact, that in 1978 as a result of an increase in feeding and tuition fees in the Universities, there were sporadic violent riots in many campuses all over the country. Consequent whereupon, armed soldiers and riot police were deployed into the various University campuses in order to quell the impending riots:

During the encounter between the students and the law enforcement agencies, there were many casualties including death of many students…

On Saturday, the 27th of May… the Military Governor of Cross River State…had been directed to present himself before my commission which was due in Calabar on the 27th …

On the 29th of May, we had the most rowdy session in all the places we visited during this inquiry. The students were very rude and many of them refused to sit down on the chairs in the hall where we held the public session … I observed that most Maxist Lecturer was their hero and was being cheered in the hall…the security had briefed me about the lecturer…

When he stood up to testify before the Commission, the students cheered. He told us that in Nigeria, people were earning criminal wages. The capitalists had dominated the life of Nigerians. The elitist were enjoying life at the expense of the masses… I then concluded to the hearing of all the students, that the wages he and his wife were earning were criminal wages and the way he lived in a posh house with two cars was an elitist way of life… that he was more a Capitalist than many Capitalists in Calabar… The students then turned against him and booed. He sank his head and sat down.

See MY PASSION FOR JUSTICE: AN AUTOBIOGRAPHY, 2012 per the Hon. Justice Uthman Mohammed, JSC, (Rtd) @ 220-221.

Thus, I have no hesitation in upholding the submission of the Appellants, to the effect that the Court below has overlooked the evidence of the tense atmosphere on the 1st Appellant campus, the security report that students and even non-students alike were holding secret meetings to rekindle the riot, and that the loud, boisterous comments and uncomplimentary behaviour of the Respondent affected members of the University community. The law is fundamentally trite, that every piece of evidence duly admitted in the course of proceedings must be tested for credibility, weight or cogency by the trial Court. Thus, where a trial Court fails to evaluate, or erroneously appraises the evidence before it, an appellate Court has an onerous responsibility to reappraise, re-evaluate the evidence with a view to reaching a fair and just decision to the parties:

Anzaku V. Governor, Nasarawa State (2006) ALL FWLR (Pt. 303) 308 @ 351 – 352 Paragraphs A-B.

Indeed, an appellate Court has a duty to interfere with the decision of a Court below, where such decision is apparently perverse, not supported by evidence on record, or has occasioned a miscarriage of justice. Invariably, a finding of a Court could be said to be perverse, where:

(a) It is speculative and not predicated on any cogent evidence; Or
(b) The Court took into account matters which it ought not to have taken into account; Or
(c) The Court shut its eyes to the obvious.

See Hamza vs. Kure (2010) ALL FWLR (pt. 539) 1070 @ 1090 Paragraphs A-E; INEC vs. Okore (2010) ALL FWLR (pt. 516) 449 @ 460 Paragraph G-A; Baba Ahmed vs. Adamu (2009) ALL FWLR (Pt. 473) 1257 @ 1260.

In the circumstances, the issue No. 1 is hereby resolved in favour of the Appellants.

ISSUE NO 2:

The second issue raises the vexed question of whether or not the award of N3m general damages was proper, not excessive and/or arbitrary. The issue is distilled from ground 4 of the notice of appeal.

As copiously alluded to above, the Court below, having granted the declaratory relief of the Respondent, proceeded to equally grant:

2. General damages of N3 million (Three Million Naira) only in favour of the Applicant against the Respondents for the violation of the Applicant’s Fundamental Rights by the Respondents.

See pages 26 – 27 of the Records.

It is the law, that general damages are generally presumed by law. The assessment and award of general damages are subject to the inherent jurisdictional competence nay discretionary power of the Court. However, such a discretionary power must be judicially and judiciously exercised. On the part thereof, the appellate Court has no business interfering with the award of damages by the Court below, unless in very exceptional cases, where-

(a) The exercise of discretion by the trial Court was done arbitrarily rather than judicially and judiciously;
(b) The trial Court exercise of discretion was predicated upon a wrong principle of law;
(c) Such an exercise of discretion was not based on the evidence on record and therefore perverse.
(d) The exercise of discretion therefore, the Court took into account irrelevant matters or disregarded relevant matters.
(e) Where the amount awarded is either manifestly too high, or maliciously low.

See UAC (Nig) Plc vs. Sobodo (2006) ALL FWLR (pt. 329) 87 @ 896 Paragraphs A-E; Asesa V. Ekwenem (2009) ALL FWLR (Pt. 329) 838 @ 860 Paragraphs D-H; Min. Internal Affairs Shugaba Darman (1982) 3 NCLR 915 @ 1008 – 1009.

In the instant case, it is obvious from the records, as the Court below rightly found, that (i) the allegations of beating, harassment, intimidation and humiliation have not been duly proved by the Respondent; (ii) there was no cogent evidence of malice or bad faith on the part of the Appellants against the Respondent; (iii) the incident occurred against the backdrop of a very serious but unfortunate volatile crisis that bedeviled the 1st Appellant in particular, and 2nd – 5th Appellants in general; (iv) the atmosphere in the University community (1st Appellant) in question was such that still required utmost vigilance on the part of the security staff and all concerned; and (v) the Respondent was actually handed over to the police authority, and there was no cogent evidence that he had ever suffered any deprivation at the instance of the Appellants.

Undoubtedly, the foregoing constitute exterminating facts and circumstances which ordinarily ought to have influenced a lesser award of damages by the Court below.

See Ighrerimovo vs. SCE Nig. Ltd. (2013) ALL FWLR (Pt. 100) 124 @ 1255 – 1256.

However, in the circumstances, having resolved the Issue No. 1 in favour of the Appellant, there is no gainsaying the fact, that the second issue must equally be resolved in their favour, against the Respondent. And I so hold.

Hence, having resolved both issues in favour of the Appellants, I have no hesitation whatsoever in coming to the most inevitable conclusion that this instant appeal is grossly meritorious, and it’s hereby allowed by me. Consequently, the judgment of the Federal High Court sitting at Calabar, delivered by P. M. Ayua, J; on April 29, 2013, in suit No. FHC/CA/M37/2013 is hereby set aside.

Parties shall bear the respective costs of litigation thereof.

OWOADE, JCA

I have read in advance the Judgment just delivered by my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, JCA.

I agree with the reasoning and conclusion. I also set aside the Judgment of the lower Court.

I abide by the Order as to costs.

NWOSU-IHEME, JCA

I read in advance the lead judgment just delivered by my learned brother, I. M. M. SAULAWA, JCA.

I adopt the facts of this case as narrated in the lead Judgment. Having resolved all the issues in favour of the Appellant, there is no doubt that this appeal is meritorious and same is hereby allowed.

Accordingly, the judgment of the Federal High Court sitting in Calabar, delivered by P. M. Ayua, J, on the 29th of April, 2013, in suit No. FHC/CA/M37/2013, is hereby set aside. I also make no order as to cost.