IN THE COURT OF APPEAL OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON MONDAY, THE 4TH DAY OF OCTOBER, 2021
BEFORE THEIR LORDSHIPS:
OBIETONBARA OWUPELE DANIEL-KALIO JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
ADEBUKOLA A. I. BANJOKO JUSTICE, COURT OF APPEAL
APPEAL NO: CA/L/277/2018
BETWEEN:
THE NIGERIAN RAILWAY CORPORATION …. …. …. APPELLANT
AND
MR. ADEYEMI OJO …. …. … …. …. …. … RESPONDENT
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
This is an appeal against the decision of the Federal High Court, Lagos, contained in the final Ruling of Honourable Justice I.N. Buba in Suit No. FHC/L/CS/1524/16 delivered on 7th day of February, 2017. The action in the lower Court was commenced by the Respondent, as Applicant, against the Appellant and Commissioner of Police, Lagos State, as Respondents. The action was commenced by way of an application for enforcement of fundamental rights dated and filed on 10th November, 2016. The evidence in support of the action is contained in a supporting affidavit of 11 paragraphs. The 1st Respondents at the lower Court, now Appellant, joined issues with the Applicant by filing a counter affidavit of 23 paragraphs. The 2nd Respondent, the Commissioner of Police, Lagos State, did not file any response to the application nor was he even represented in Court. At the conclusion of hearing, the trial Court granted the Applicant’s reliefs and awarded him damages in the sum of Five Million Naira (N5,000,000.00) only.
Having been dissatisfied with the Ruling, the 1st Respondent appealed to this Court by filing his Notice of Appeal containing six grounds of appeal dated 21st March, 2017 on 24th March, 2017.
Here under are the grounds of appeal and their particulars:
“GROUND ONE: MISDIRECTION IN LAW.
The lower Court misdirected itself in law and came to a perverse Ruling when it proceeded to adopt only the issues for determination of the application as formulated by the Respondent/Applicant that were tailored to reach conclusion in favour of the Respondent/Applicant, and to completely ignored (sic) the issues for determination formulated by the Appellant/1st Respondent.
PARTICULARS OF MISDIRECTION:
GROUND TWO: ERROR OF LAW
The lower Court erred in law and came to a perverse decision then it held in its ruling complained of as follows:
“The affidavit in support of this application shows that the 1st Respondent has detained the applicant with officers of the 2nd Respondent for an offence not known to law and outside the scope of its functions and powers as enshrined in Sections 15, 17 and 18 of the Nigerian Railway Corporation Act. It is noteworthy that none of these provisions or indeed any other provisions of the Nigerian Railway Corporation Act empowers the Respondent to arrest, detain, or prosecute alleged railway offences. Furthermore, the alleged offence of sitting or staying on the roof of a train is unknown”
PARTICUALRS OF ERROR.
GROUND THREE: PERVERSITY.
The lower Court demonstrated palpable bias against the Appellant/1st Respondent and in favour of the Respondent/Applicant in both its adjudication and determination of the Respondent/Applicants application and also based its entire decision on the submission of the Respondent/Applicant alone and thus came to a perverse decision, particularly when the lower Court said in its Ruling as follows:
“The applicant has approached this Court as its last hope for the protection of its fundamental rights against the brazen disregard for the tenets of the Constitution and the rule of law exhibited by the Respondents”.
PARTICUALRS OF PERVERSITY.
GROUND FOUR: PERVERSITY
The lower Court displayed so much contempt, prejudice and bias against the Appellant/1st Respondent, failed to (sic) all the issues and arguments raised by the Appellant/1st Respondent and came to a perverse decision particularly when the lower Court in tis Ruling summed up Appellant/1st Respondent’s (sic) as follows:
“To this affidavit the 1st Respondent filed a counter affidavit wherein the deponent regrettably did not in the counter affidavit of 23 paragraphs show that he knows any fact that frontally meets up with the Applicant’s affidavit.
“Indeed in paragraph 2 he admitted not to have personal knowledge. I was duly briefed of the fact in my office at Ebute Metta junction Railway Station by the team; team (sic) operative and could not name any one.
“Elsewhere the deponent stated without any iota of truth that tickets were given to the Applicant in detention by who and how. To this Court on (sic:an) evaluation of this averment is no more than swimming in the waters of speculation which the Court cannot do”.
PARTICULARS OF PERVERSITY
GROUND FIVE: LACK OF FAIR HEARING
In the manner the lower Court heard and determined the application, it denied fair hearing to the Appellant/1st Respondent, took irrelevant materials into account but disregarded relevant materials, and thus came to a perverse decision.
PARTICULARS OF LACK OF FAIR HEARING
GROUND SIX: DAMAGES AWARDED WAS EXCESSIVE AND HARSH
The lower Court erred when it relied on irrelevant and unsubstantiated facts to award a most excessive and undeserved amount in damages.
PARTICULARS OF EXCESSIVENESS
GROUND SEVEN: DECISION AGAINST WEIGHT OF EVIDENCE.
The decision of the lower Court was against the weight of evidence placed before it.”
In arguing the appeal before the Court, counsel for the Appellant filed a brief of argument dated 11th December, 2018 on 14th December, 2018. In response, counsel for the Respondent filed the Respondent’s brief of argument on 22nd May, 2019. Counsel for the Appellant filed a Reply brief of argument dated 5th November, 2019 on 12th November, 2019. All the briefs filed by the parties were deemed as properly filed and served by an order of this Court made on 7th July, 2021. At the hearing of the appeal, counsel for the parties adopted and relied on the arguments in their respective briefs of arguments as their submissions in the appeal.
Upon a calm reading of the Reply brief filed by the Appellant, I find that it did not actually respond to any new point of law raised in the Respondent’s brief. Much of the argument in the Reply brief is just a re-argument and further elaboration of the argument already canvassed in the Appellant’s brief of argument. The law is settled that the essence of a Reply brief is not to beef up an Appellant’s argument as contained in his brief of argument; rather, it is to respond to new issues raised and canvassed in the Respondent’s brief which were not touched or covered by the Appellant’s main brief of argument. A Reply brief is not a repair kit to put right any lacuna or error or omission in the Appellant’s brief of argument. See Adekunle & Anor vs. Governor of Lagos State (2020) LPELR-49587 (CA); Alhaji Salihu vs. Alhaji Abdul Wasiu (2016) LPELR-26062) (SC); A.B.C Transport vs. Miss Bunmi Omotoye (2019) LPELR-47829 (SC). In the absence of a new point of law to which the Appellant’s Reply brief addresses, the said Reply brief becomes otiose and it is hereby discountenanced.
Earlier on 18th November, 2018, the name of the Commissioner of Police, Lagos State, who was the 2nd Respondent, was struck out on the application of the Appellant.
In his brief of argument, counsel for the Appellant, S.O. Amaefule, formulated four issues for determination, viz-
Counsel for the Respondent, who settled the brief, Funmilayo Odude, on the other hand, opined that three issues only are discernible for the determination of this appeal, as follows:
“i. Whether the lower Court did not consider the case as put forward by the appellant herein and this breached the Appellant’s right to fair hearing (grounds 1,3,4 and 5 of the Notice of Appeal).
ii. Whether the Respondent was arrested and detained for an offence known to law. (Ground 2 of the Notice of Appeal)
iii. Whether the damages granted by the lower Court was excessive in the circumstances of this case. (Ground 6 of the Notice of Appeal)”
Before delving into the submissions of counsel, it is worthwhile to have a synopsis of the evidence before the trial Court by way of affidavit in support of the application, further-affidavit, counter affidavit and reply affidavit to counter-affidavit. According to the affidavit of Muiz Adeniyi, a Litigation Assistant in the Law Firm of counsel to the Applicant, the Applicant, an electrical mechanic who lives at Agbado and works at No. 38 Obalende Road, Lagos Island, Lagos, took a bike to Iju Train station and bought a ticket for N230.00 to Oyingbo station on the morning of 7th November, 2016. As he was boarding the Train, he was grasped with force from the back and pulled off the Train by a man he later identified as a member of Appellant’s Task Force. He hit his head on the pavement and bled. He was detained at the Railway Area Command Police Station at the compound of the Appellant at Ebute-Meta, Lagos. He showed the Task Force the ticket he purchased that morning but to no avail. He and others arrested were asked to pay N50,000.00 fine and collect receipts before they would be released. As at the time of filing the application before the lower Court on the 10th November, 2016, the Applicant was neither released nor taken to any Court of law. The Divisional Police Officer of the Railway Area Command Police Station informed the Applicants’ counsel that the Applicant was detained on the instruction of the District Supervisor of the 1st Respondent, now Appellant. The ticket purchased by the Applicant and the receipt evidencing payment of N30,000.00 to the Appellant as penalty or fine by the Applicant’s wife were annexed to the further affidavit deposed to by the Applicant himself as Exhibits A01 and A02 respectively. The Applicant was released on 11th November, 2016 after the payment of N30,000.00 by his wife. The further affidavit was deposed to and filed on 29th November, 2016, before the filing of the counter affidavit. In the counter affidavit of the 1st Respondent, now Appellant, deposed to by one Segun Okelola, Chairman of the Nigerian Railway Task Force on Revenue Generation, who said he does not have personal knowledge of the facts deposed to by him, the 1st Respondent denied the Applicant’s claim and asserted that the contents of the Applicant’s affidavit are half-truths and outright falsehood. He was briefed of the facts he deposed to buy his team operatives. He stated that several Railway Stations in Lagos have become very notorious for incidents of illegal riders on the 1st Respondent’s Trains, some of who ride on top of the roof of the Trains and others hang on the entrance doors without buying tickets. As a consequence, on 7th November, 2016 he led an operation jointly executed by his Task force, the Railway Police Command and the Lagos State Command of the Nigerian Police during which raids were carried out on Railway coaches at Iju and other Railway Stations. The Applicant and over a hundred others were arrested at Iju Railway Station for being at the roof-top of the Train that arrived from Agbado Railway Station without tickets. That the Applicant’s relation came to the Area Command of the Railway Police and pleaded that the Applicant should not be charged to Court but that they should be allowed time to raise money to pay fine for the penalty. That on compassionate ground, the District Superintendent granted permission for the Applicant’s relatives to pay N30,000.00 for his release. He denied that the Applicant was beaten by anybody. The deponent further stated that the train ticket attached by the applicant as exhibit A01 was purchased by some person and passed to the Applicant after his arrest and detention at a holding cell at Iju Railway Station.
Issues 1 and 2
Counsel for the Appellant argued issues 1 and 2 formulated by him together. He argued that the lower Court failed to consider the deposition in the Appellant’s counter affidavit to the effect that the Respondent has no train ticket at the time of his arrest by the Appellant’s Task Force on Revenue Generation, and that the Respondent’s detention in the custody of the Appellant was a necessary compliment of the Respondent’s request to be allowed to pay fine instead of being charged to Court, just as it brushed aside the issues for determination and submissions of counsel before it, in determining the case. That the lower Court based its decision solely on the affidavits of the Applicant/Respondent and the written address of his counsel without recourse to the counter-affidavit of the Respondent/Appellant and the sub missions of its counsel. This, according to Mr. Amaefule, rendered the Judgment of the lower Court not only perverse but a denial of fair hearing to the Appellant. He submitted that the lower Court failed in its duty to properly evaluate the evidence placed before it in that the consideration of one set of evidence and the total disregard of another set of evidence placed before it cannot constitute a proper evaluation of evidence. Learned counsel referred to the following authorities: Ameyo vs. Oyewale (2009) 8 NWLR (Part 1143) 338 at 404-405; Ekeowa vs. NCC PLC (2009) 4 NWLR (part 1131) 289 at 302; Savannah Bank of Nigeria Plc vs. Central Bank of Nigeria (2009) 6 NWLR (part 1137) 237. On the Constitutional guaranty of fair hearing and what fair hearing entails, counsel cited the cases of Ajayi vs. NURTW (2009) 8 NWLR (part 1144) 423 at 450-451 and Amanchukwu vs. F.R.N (2009) 8 NWLR (part 1144) 475 at 484, 486-487. It is submitted for the Appellant that the only cure for the failure of the lower Court to observe the principle of fair hearing is for this Court to set aside the decision of the lower Court.
In treating issue one in the Respondent’s brief of argument, counsel for the Respondent, Funmilayo Odude, submitted in reply to the Appellant’s argument on the issue of fair hearing and perversity of the lower Court’s decision for want of proper evaluation of evidence, that a Judgment of Court cannot be said to be perverse merely because it was written in a certain style not palatable to the Appellant, as long as the Court clearly identified the issues, evaluated the evidence and made clear findings of facts before arriving at its decision. She commended to the Court the case of David Mbanu vs. Mbaibe Bosi & Ors (2006) LPELR-1853 (SC) at 23-24. Respondent’s counsel submitted that the mere reproduction of the affidavit and submissions of the Respondent in the Judgment does not make it perverse or raise an issue of bias especially as the Ruling considered the counter affidavit and written address filed by the Appellant. Counsel referred to page 6 of the Ruling of the lower Court as contained at page 58 of the Record of Appeal and submitted that the position of the appellant that the lower Court did not consider its counter affidavit and written submissions is flawed. I shall refer to what the lower Court said at page 58 of the record, later in this Judgment. For now, it suffices to say that counsel further cited the under mentioned authorities on styles of Judgment writing – Omotola & Ors vs. The State (2009) LPELR-2663 (SC); Nwankpu vs. Ewulu (1995) 7 NWLR (part 407) 269 at 286; Akinyanju vs. University of Ilorin (2005) 7 NWL|R (part 923) 87 at 112.
Respondent’s counsel urged the Court to hold that the lower Court was right to have found that the detention of the Respondent until he paid the fine of N30,000.00 was a denial of his right to fair hearing and that only a competent Court or tribunal can find a man guilty of an offence.
Under these issues 1 & 2, the Appellant accused the lower Court of bias, denial of fair hearing and improper evaluation of the evidence before it which resulted in a perverse decision. The accusation of bias is hinged on the fact that while the lower Court reproduced in its Ruling the affidavit in support of the claim and written address of the Applicant’s counsel, he did not do the same with respect to the counter-affidavit of the Respondent, now Appellant and the written address of its counsel. The accusation of improper evaluation of evidence is also partly hinged on this approach by the trial Court; ditto for the allegation of denial of fair hearing.
Bias is defined to mean opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the Judge so influenced will be unable to hold an even scale of justice, Kenon vs. Tekam (2001) 14 NWLR (part 732) 12 at 41-42, Per Ayoola JSC. Judicial bias is defined as “a Judge bias towards one or more of the parties to a case over which the Judge presides” Blacks Law Dictionary, Eight Edition. Bias also means anything which tends or may be regarded as tending to cause a Judge to decide a case otherwise than on the evidence. It is “an inclination or preparation or predisposition to decide a cause or matter in a certain pre-arranged way without regard to any law or rules…” Kalgo, JSC, in Azuokwu vs. Nwokanma (2005) LPELR-690 (SC) at 13.
Fair hearing on the other hand, simply means fair trial, that is, both sides to the dispute must be given equal opportunity to present their respective cases before the Court. “Fair hearing, in essence, means giving equal opportunity to the parties to be heard in the litigation before the Court. Where parties are given opportunity to he heard, they cannot complain of breach of the fair hearing principles”, Tobi, JSC, in INEC vs. Alhaji Abulkadir Balarabe Musa (2003) LPELR-24927 (SC) at 94. Fair hearing therefore means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties before the Court. In this sense, fair hearing is a product of the procedure adopted in achieving justice. Where all the parties, as in this case, were giving the opportunity to present their cases and they did present their respective cases the best way they could, without hindrance in any form, the Appellant cannot be heard to complain that it has been denied fair hearing simply because the trial Court leans more in favour of the Respondent in his evaluation of the evidence and ascribing probative value to them. It would have been a different consideration altogether if the Appellant’s grouse with the Ruling of the lower Court is that it has not been given opportunity to present its case before the Court in the course of trial. This suit was commenced by way of originating motion supported by an affidavit. The Appellant filed a counter affidavit in opposition to the claim. Both parties were heard before the matter was adjourned for Ruling. Therefore, both parties were accorded fair hearing before the matter was decided by the trial Court. The term fair hearing “has been held to be synonymous with fair trial”. It is a principle that is tied to the trial of a cause or matter. In the instant case on appeal, I hold that the Appellant was afforded fair trial/fair hearing by the lower Court.
Non-evaluation of evidence is one of the sub issues under issues 1 & 2 that were argued together by the Appellant’s counsel. Evaluation of evidence means assessment of the evidence led by the parties and ascription of probative value to them with a view to determining on which side the pendulum or scale of justice tilts. “Evaluation of evidence by a trial Court should necessarily involve a reasoned believe of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other”, Lagga vs. Sarhuna (2008) LPELR-1740 (SC). It involves reviewing and criticizing the evidence given and estimating it. That is the duty of the trial Court. Where the trial Court carried out a proper analysis and evaluation of the evidence led and made correct findings, the Appellate Court will not interfere, disturb or substitute its own views for the views of the trial Court. See Lagga vs. Sarhuna (supra); Sijuade vs. Makinde & Ors (2015) LPELR-40526 (CA) at 48-49.
In the instant case on appeal, the following facts are not in dispute between the parties at the lower Court.
The areas of dispute between the parties, as it relates to issues 1 and 2 under consideration are:
These undisputed and disputed facts will enable this Court to determine whether or not the trial Court properly evaluated the evidence before it or it was biased in favour of the Respondent. Counsel for the Appellant submitted that the trial Court did not consider the counter-affidavit of the Appellant and the written address of its counsel. In the words of counsel at page 7, paragraph 5.7 of the Appellant’s brief of argument:
“In the 13 pages Ruling of the lower Court (pages 53-65 of the record) the only attention or apparent attention paid to the entire defence of the Appellant was the cursory, disdainful, and dismissive references found at page 58 of the record. But the lower Court reviewed and reproduced in extenso the depositions in the two affidavits of the Respondent, showing an unhidden bias and preference in favour of the Respondent….”
Let it be known, and clearly too, that review of evidence is not the same thing as evaluation of evidence, the two are not synonymous. The mere recital of the affidavits of the Respondent without a corresponding recital of the counter-affidavit of the Appellant does not amount to evaluation of evidence upon which to found a complaint of non-evaluation or improper evaluation of evidence. That said, I shall now revert to the Ruling of the lower Court. After reviewing the Respondent’s affidavit, the trial Court at page 58 of the record observed thus:
“To this affidavit, the 1st Defendant filed a counter affidavit wherein the deponent regrettably did not in the counter affidavit of 23 paragraphs show that he knows any fact that frontally meets up with the Applicant’s affidavit. Indeed, in paragraph 2 he admitted not to have personal knowledge. I was duly briefed of the fact in my office at Ebute-Meta junction Railway station by the team; team operatives and could not name any one.
Elsewhere, the deponent stated without any iota of truth that tickets was given to the Applicant in detention, by who and how? To this Court an evaluation of this averment is no more than swimming in the waters of speculation, which this Court cannot do”.
I consider this passage as constituting proper evaluation of the evidence led by the Appellant through the counter-affidavit of Segun Okelola. The style adopted by the trial Court in refusing to accept the Appellant’s evidence as contained in the counter-affidavit may be very brief and scanty but it is certainly not disdainful. The deponent to the counter-affidavit has stated in paragraph 2 thereof that he does not have personal knowledge of the facts, yet he failed to name the person(s) who supplied the facts to him. Similarly, the deponent stated in paragraph 11 of the counter-affidavit that some persons bought ticket and sneaked it to the Respondent while at the holding cell without naming the person and stating how the ticket was sneaked in to the Respondent. The trial Court disbelieved these pieces of evidence for want of particulars and as product of speculation. This is what the trial Court summarily dealt with in the passage of the Ruling quoted above. I hold that the allegation of non-evaluation of evidence and bias have not been made out by the Appellant. Consequently, I resolve issues 1 and 2 against the Appellant.
Issue 3 reads:
“Whether the lower Court was right in failing to take judicial notice of offences created by, under or pursuant to the Nigerian Railway Corporation Act, Cap 129 LFN as enjoined by Section 122 (2) (a) of the Evidence Act Cap HB 214, LFN, 2011, and thereby holding an offence created by a statutory instrument as being unknown to law”
Appellant’s counsel; submitted that it is the duty of a Court of law to take judicial notice of enactments and subsidiary legislations pursuant to the provision of the Evidence Act in Section 122 (2) (a). He argued that it was wrong for the lower Court to fail to take judicial notice of the Appellant’s Bye Law made pursuant to the powers given to it by Section 58 (1) of the Nigerian Railway Corporation Act, Cap. HB 214, Laws of the Federation, to govern the use of and conduct of persons using the Appellant’s transport facilities and services. He attacked the finding of the lower Court to the effect that the Respondent was arrested, detained and made to pay fine for an offence that is unknown to law. On judicial notice, counsel cited and relied on the case of Chief Johnson Nkpornwi vs. HRH Samuel Ejire & Ors (2009) 9 NWLR (part 1145) 131 at 180.
It is further argued that the lower Court also failed to take judicial notice of the fact that the arrest of the Respondent was for reason of conduct which denied the Appellant its legitimate revenue. Learned counsel for the Appellant submitted thus” “If the Court had adverted its mind to the endemic nature of the conduct as depicted in the picture on page 19 of the record, it would have been more balanced in tis consideration of the materials before it and would have felt the need to examine the subsidiary legislation of the Appellant that criminalized the conduct.” He referred to F.B.I.R vs. I.D.S Ltd (2009) 8 NWLR (part 1144) 615 at 639, where the Court held:
“If a statute is revenue based or revenue oriented it will be part of sound public policy for a Court of law to construe the provisions of the statute literally in favour of deriving revenue by government unless there is a clear provision to the contrary. This is because it is in the interest of the generality of the public and to the common good and welfare of the citizenry for the government to be in revenue to cater for the people. That is the only way it can distribute wealth to the people to facilitate development to all and sundry”
Counsel for the Appellant argued that the lower Court was wrong in holding that an offence created by a statutory instrument is not an offence known to law thereby leading to miscarriage of justice. This Court is urged to resolve this issue in favour of the Appellant.
Issue 2 formulated by the Respondent is similar to issue 3 argued by the Appellant. Under his issue 2, counsel for the Respondent conceded that the Courts are enjoined to take judicial notice of laws and subsidiary legislations by Section 122(2)(a) of the Evidence Act. He however submitted that in the instant case, there is no law prescribing the offence for which the Respondent was arrested and detained, that the lower Court will take judicial notice of. It is submitted for the Respondent that even if the Appellant is a revenue generating agency of the Federal Government, any arrest and detention of any citizen for any offence allegedly affecting the operations of the appellant or any revenue generating agency of government must be for an offence prescribed by a law and must be done in accordance with the provisions of the Constitution such that a person arrested is not kept beyond the Constitutionally allowed time frame of 24 to 48 hours before he is charged to Court. The cases of Chief Olabode George vs. Federal Republic of Nigeria (2013) LPELR-21895 (SC) and Omatseye vs. FRN (2017) LPELR-42719 (CA), are cited in support. Counsel submitted that the act of riding on the roof of the train for which the Respondent was arrested and detained is not made a criminal offence by any legislation, substantive or subsidiary. This Court is urged to hold that the lower Court was right in holding that the Respondent was arrested and detained for an offence not known to law, and to resolve this issue in favour of the Respondent.
Section 58 of the Nigerian Railway Corporation Act, provides:
“(1) The Corporation may, with the approval of the Minister make bye laws, not inconsistent with the provisions of this Act, with respect to all or any of the following purposes –
(2) Bye-Laws made under this section, may provide that the breach of any of them shall be an offence punishable with such fine as may be specified in relation thereto, not exceeding N40, or in the case of a bye-law regulating the carriage of offensive goods, N100.
(3) --------------------------------------------------------------------------------------
(4) Bye-laws made under this section shall be published in Gazette and shall have effect on the publication thereof or on such later date as may be specified therein.
(5) The Corporation shall keep at each Station of the Railway, a copy of the bye-laws made under this section and for the time being in force, and shall allow any person to inspect it free of charge.”
It is clear from the above-quoted provisions that the Appellant is donated the necessary powers to create and punish offences that may hinder its smooth operation. In particular, under Section 58(1)(j), the Appellant can, through a bye-law, criminalize riding on the roof-top of its trains and provide sanction by way of payment of fine for such an offence. That delegated power of the Appellant under the Nigerian Railway Corporation Act is never in doubt. The question that comes to mind, however, is whether the Appellant has utilized the power donated to it by its enabling Act by making a bye law criminalizing the act of riding on the roof of the train and providing sanction for doing so.
Counsel for the Appellant made a heavy weather about breach of bye-law, subsidiary instrument, etc., he however failed short of stating the name, date of enactment and gazetting of the bye-law which he wanted the lower Court to take judicial notice of. I agree with the statement of the law by the Appellant’s counsel that the trial court was under a duty to take judicial notice of all laws, including subsidiary legislation, as provided by Section 122 (2) of the Evidence Act, 2011. But a law must be shown to exist before a Court will discharge its duty of taking judicial notice, and the duty of bringing to the Court the notice or existence of any law is on the party who asserts the existence of such law. It has not been shown to the lower Court or to this Court that the Appellant has, in exercise of the power donated to it by section 58 of the Nigerian Railway Corporation Act, made any bye-law criminalizing the riding on the roof top of its trains and providing punishment for such act. A Court of law cannot take judicial notice of a non-existent bye-law simply because an enabling enactment has permitted the Appellant to make it. Until such a bye-law is made and published in a gazette, the Nigerian Railway Corporation cannot arrest, detain and impose fines on violators of a non-existing bye-law.
I am supported in this view by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides in Section 36 (12) as follows:
“Subject or otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a law of a State, any subsidiary legislation or instrument under the provisions of a law”.
By asking or forcing the Respondent to pay a penalty for an offence not created by a written law, the Appellant has acted ultra vires its powers and against the letters of the Constitution.
In view of the above analysis, I hold that the finding of the trial Court that the Respondent was arrested, detained and ordered to pay fine for an offence not know to law, is unassailable. I resolve the Appellant’s 3rd issue against the Appellant.
Issue 4
On this issue, counsel for the Appellant contended that the damages of Five Million Naira (N5,000,000.00) awarded against the Appellant is harsh and excessive in the circumstance, particularly in the absence of a definite statement or deposition as to the exact period of the Respondent’s detention by the Appellant. That the lower Court never made finding as to the Respondent’s period of detention but proceeded to award him compensation in the sum of Five Million Naira, without stating any basis for the award. He relied on Chief Sunday Effiong Udo vs. Chief Sunday Kofee Essien, citation not provided.
Counsel argued that since Section 35 of the Constitution which provides for payment of compensation in the event of proven cases of breach of fundamental rights did not require proof of any specific loss or injury, then the measure of compensation should be equivalent to general damages in other civil claims. He submitted that on the strength of the decision in the case of U.B.A Plc vs. Ogundokun (2009) 6 NWLR (part 1138) 450, it is safe to state that general damages or compensation is awarded on the basis of the best of Judgment notion of a reasonable man in the particular circumstance. He submitted that even if the detention of the Respondent lasted 5 days, which he did not concede, the N5,000,000.00 damages awarded would in the circumstance be at the rate of N1,000,000.00 for each day of the detention, which in his view was clearly out of all proportion of what was reasonable. Counsel called in aid the decision of this Court in Savannah Bank vs. C.B.N (supra) where it was held at page 309, thus:
“General damages is damages at large in that there is no strict rule regarding it. The yardstick in assessing general damages is that of reasonable man on the street. The inconveniences suffered are what can be deciphered from the totality of the evidence proffered by the parties. Thus, it is the duty of the trial Court to assess general damages”.
Mr. Amaefule contended that in the instant case, the lower Court failed to make any assessment of damages, instead, in the manner of a Father Christmas, it just doled out an award that was outrageous and out of proportion with any injury, loss or inconvenience suffered by the Respondent, which occasioned a miscarriage of justice. This Court is urged to allow the appeal and set aside the Ruling of the lower Court delivered on 07/02/2017 and dismiss the Respondent’s originating motion before the lower Court for enforcement of fundamental rights.
On this issue of damages, which is similar to issue 3 in the Respondent’s brief of argument, Ms. Odude submitted on behalf of the Respondent that there is ample evidence in the affidavit and further affidavit in support of the Respondent’s motion that he was arrested and detained on 07/11/2016 and released after four days on 11/11/2016. She referred to paragraphs 2 and 4 of the further affidavit.
She submitted that the lower Court proceeded on the right principle after finding that the Respondent was detained beyond the time prescribed by the Constitution in awarding damages, and urged this Court not to interfere with the said award. Cited in support of this submission is the case of EFCC vs. Agbele (2018) LPELR-44677 (CA). Respondent’s counsel argued that contrary to the submission of the Appellant’s counsel that an award of compensation under fundamental rights cases is equivalent to award of general damages in other civil claims, under an application for enforcement of fundamental rights, an applicant does not need to proof injury warranting the damages beyond proving that he has been detained beyond the time prescribed by the Constitution. The Court is referred to First Bank & Ors vs. A-G Federation & Ors (2018) LPELR-46084 (SC). Counsel argued that the regular civil cases relied upon by the Appellant would be inapplicable in this case on the authority of the First Bank case just cited above, and that there is no ground upon which this Court will interfere with the damages awarded by the lower Court, having been made on the right principle of law and pursuant to Section 35 (6) of the Constitution. We are urged to resolve this issue in favour of the Respondent and uphold the decision of the lower Court.
At page 64 of the Record of Appeal the trial Court in its Ruling found in favour of the Respondent and declared, inter alia; that the arrest, detention and arbitral imposition of fine on the Applicant/Respondent by officers of the Appellant and the Commissioner of Police, Lagos State are ultra-vires, illegal, unconstitutional and a violation of the Respondent’s fundamental rights to personal liberty, freedom of movement, right to dignity of person, right to be presumed innocent until proven guilty and fair hearing as enshrined in Sections 34, 35, 36 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Articles 5, 6, 7, and 12 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act. It is in consequence of this declaration that the lower Court assessed damages in favour of the Respondent in the sum of Five Million Naira only (N5,000,000.00).
Generally, in other civil claims, general damages are awarded to assuage for the injury, loss or inconvenience or both, suffered by the victim against the person(s) found to be at fault. General damages need not be pleaded or proved and it is awarded in a deserving case as monetary compensation to a person who has suffered injury to his person or property as a result of the unlawful act or omission of another person. The quantum need not be specified as the award is based on what a reasonable man will consider to be adequate in the circumstances. See Badmus & Anor vs., Abegunde (1999) LPELR-705 (SC); Eneh vs. Ozor (2016) 16 NWLR (part 1538) 219; Union Bank Plc vs. Chimaeze (2014) 9 NWLR (part 1411) 166. This is the guiding principle for the determination of quantum of general damages to be awarded in the event a civil claim succeeds. The trial court shall be guided by what a reasonable man will award as general damages taking into consideration the entire circumstances of the case.
Learned counsel for the Appellant argued that bearing in mind the number of days the Respondent was detained by the Appellant, which is less than five days, the award of N5,000,000.00 damages is harsh and excessive. Respondent’s counsel on the other hand, contended that the reasonable man’s test for determination of the amount of general damages to be awarded does not apply to cases of breach of fundamental rights under Section 35(6) of the Constitution. That section provides:
“Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person, and in this subsection, “the appropriate authority or person” means an authority or person specified by law”
The Constitution merely provides for compensation and public apology to victims of misuse or abuse of power by public authorities and their personnel; it is silent on the quantum or amount of compensation to be awarded. Over the years, the courts have risen to the occasion by providing the guiding principle for such award. As a starting point, let me reiterate that proof of injury, loss or inconvenience is not a requirement for the award of damages by way of compensation in cases of breach of fundamental rights. See Arulogun vs. Commissioner of Police, Lagos & Ors (2016) LPELR-40190 (CA).
In their own wisdom, the Nigerian people through the Constituent Assembly and the Constitution Drafting Committee (note the opening line of the constitution) decided to build a safeguard mechanism against the arbitrarily abuse of their fundamental rights by government and its agencies by enacting the provision of Section 35(6) of the Constitution, which provides for payment of compensation and public apology in the event of violation of such rights. To be entitled to compensation, all that a victim needs to do is to prove the breach of his right without more. The duration of the breach is immaterial, so long as the victim of the breach is able to prove same. The Latin maxim Ubi Jus Ibi Remedium applies. Once the court hearing the case comes to the conclusion that the fundamental right of a person has been infringed, he is entitled to compensation in form of damages. In NSCDC vs. Mrs. Mercy Kaleb Filli (2020) LPELR-50942 (CA) at page 18, this court, per Abiriyi, JCA, held as follows:
“Any violation of a citizen’s guaranteed fundamental right for however short a time, must attract a penalty under the constitution. Damages are awarded to compensate the applicant for harm done to him and punish the respondent for misconduct in inflicting the harm. See First Bank of Nigeria Plc & Ors vs. A.G. of Federation & Ors (2018) LPELR-56084 (SC); Skye Bank Plc vs. Emerson Njoku & Ors (2016) LPELR-40447 (SC) and Alaboh vs. Boyes (1984) 5 NWLR 830. In the instant case, the appellant having unlawfully arrested and detained the Respondent must be penalized in damages under Section 35(6) of the 1999 Constitution of the FRN (as amended). The Appellant’s protest that the detention was for less than 24 hours must be ignored. It did not matter even if it was for a minute”
It is clear therefore that contrary to the submission of the Appellant’s counsel, the common law principle of the reasonable man’s test in the assessment of quantum of general damages does not apply to matters brought under the enforcement of fundamental rights procedure. Even where no specific amount is claimed, the complainant is entitled to compensation and apology the moment he establishes the violation of his fundamental rights. See Jim-Jaja vs. Commissioner of Police, Rivers State (2013) 5 NWLR (part 1350) 225.
In the case now on appeal, not only has it been established that the Respondent was arrested and detained by the Appellant for four days for an offence not known to law, he was also compelled to pay an illegal penalty by way of fine without been arraigned before any court of law. His accuser, the Appellant, also acted as the Judge by imposing on him a fine that is not stipulated by or provided for in any written law. With this state of affairs, I have not seen any reason why I should interfere with or disturb the damages of Five Million Naira only (N5,000,000.00) awarded to him by the lower court. I resolve this issue against the Appellant.
Having resolved all the issues formulated in this appeal against the Appellant, I hold that the appeal is bereft of merit and I accordingly dismiss it. The Ruling of the Federal High Court, Lagos, in Suit No. FHC/L/CS/1524/2016 delivered on 7th February, 2017 is hereby affirmed. I award N100,000.00 cost in favour of the Respondent.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
