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Before Their Lordships
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
Between
1. DIAMOND BANK PLC
2. MRS. BENEDICTA ESENWA-OKOLO – Appellant(s)
AND
1. OGBONNA LEONARD
IRECHUKWU
2. COMMISSIONER OF POLICE, RIVERS STATE.
3. S. P. LUKA OTTA – Respondent(s)
…………………….A…………………….
BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): This appeal is from the judgment of the Federal High Court Port Harcourt Judicial Division H. A. NGANJIWA J., presiding in Suit No. FHC/PH/CS/476/2010 delivered on 13th December, 2013. The 1st Respondent as Applicant commenced the suit via an Originating Motion on Notice dated and filed on 15th September, 2010 pursuant to Order 2 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009 wherein he sued the Appellants seeking for the following reliefs: –
a) A DECLARATION that the detention of the application at Refinery Police Station, Life Camp Eleme, Rivers State from the 26th April, 2010 to 30th April, 2010 by the 3rd and 4th Respondents at the instance and instigation of the 1st and 2nd Respondents, is a gross violation of the applicants right to personal liberty as guaranteed under Section 35(1) of the Constitution of the Federal Republic of Nigeria, 1999.
b) AN ORDER, compelling the respondents to tender an unreserved public apology to the applicant, which apology shall be published in the front page of 3 national daily newspapers.
c) AN ORDER, restraining the respondents by themselves or through their agents howsoever from further arrest or detention of the applicant in respect of any matter relating to or connected with the loan transaction between the applicant and the 1st respondent.
d) AN ORDER, compelling the respondents to release the applicants Mac truck with registration number, XA 748 KMR now in the custody of the 4th respondent at Refinery Police Station, Life Camp.
e) THE SUM OF N50,000,000.00 exemplary damages against the respondents for the gross violation of the applicants right to personal liberty as guaranteed under Section 35(1) of the Constitution of the Federal Republic of Nigeria 1999.
GROUNDS UPON WHICH RELIEFS ARE SOUGHT:
The applicant seeks relief on the ground that the detention of the applicant at Refinery Police Station, Life Camp Eleme Rivers State from the 26th April, 2010 to the 30th April, 2010 by the 4th and 5th respondents at the instance and instigation of the 1st and 2nd respondents, is a gross violation of the applicants right to personal liberty as guaranteed under Section 35(1) of the Constitution of the Federal Republic of Nigeria 1999. (pages 3- 4 of the record of appeal).
In support of the Application is a 17 paragraphs affidavit deposed to by the Appellant; attached to which is a copy of the letter of OFFER OF CREDIT FACILITY dated 19/2/2009 approving to the applicant his request for a loan of N1,900,000:00. The letter is marked as Exhibit A. A written address also accompanied the application. (pages 5 14 of the record of appeal). The 1st and 2nd Respondents filed a counter affidavit containing 6 paragraphs attached to which is a copy of a document titled: TRANSFER OF OWNERSHIP OF VEHICLE dated 6/3/2009 also marked as Exhibit A and a written address dated 15/12/2010. (pages 15 21 of the record of appeal). The 3rd and 4th Respondents also filed a 15 paragraphs counter affidavit deposed to by one Sgt. Bernard Osuafor attached to which are (a) Copy of Extract from Crime Diary and (b) Copy of a document headed: RECOVERY OF TRUCK FOR LOAN REPAYMENT dated 26/04/2010. A written address also accompanied the counter affidavit. (pages 22 32 of the record of appeal).
The Applicant filed a 14 paragraphs Further Affidavit dated 02/02/2011. (pages 40 42 of the records). He also filed a written address on reply on Points of Law dated 20/07/2011 (pages 55 58 of the record of appeal). Proceedings of the lower Court is on pages 81 109 of the Records.
Judgment was delivered by the learned trial Judge on 13/12/2013 (pages 113 127 of the record of appeal). After reviewing the affidavit evidence and other processes filed before him the learned trial Judge held thus: –
In all, I find that the arrest and detention of the Applicant by the 3rd and 4th Respondents was unexcusable (sic). The Applicants detention is neither necessary nor incidental, it clearly lacked resemblance of legal justification as such the arrest and detention must be condemned in its entirely. In addition, I hold the view that the 1st and 2nd Respondents brought the complaint that led to the
b) AN ORDER, compelling the respondents to tender an unreserved public apology to the applicant, which apology shall be published in the front page of 3 national daily newspapers.
c) AN ORDER, restraining the respondents by themselves or through their agents howsoever from further arrest or detention of the applicant in respect of any matter relating to or connected with the loan transaction between the applicant and the 1st respondent.
d) AN ORDER, compelling the respondents to release the applicants Mac truck with registration number, XA 748 KMR now in the custody of the 4th respondent at Refinery Police Station, Life Camp.
e) THE SUM OF N50,000,000.00 exemplary damages against the respondents for the gross violation of the applicants right to personal liberty as guaranteed under Section 35(1) of the Constitution of the Federal Republic of Nigeria 1999.
GROUNDS UPON WHICH RELIEFS ARE SOUGHT:
The applicant seeks relief on the ground that the detention of the applicant at Refinery Police Station, Life Camp Eleme Rivers State from the 26th April, 2010 to the 30th April, 2010 by the 4th and 5th respondents at the instance and instigation of the 1st and 2nd respondents, is a gross violation of the applicants right to personal liberty as guaranteed under Section 35(1) of the Constitution of the Federal Republic of Nigeria 1999. (pages 3- 4 of the record of appeal).
In support of the Application is a 17 paragraphs affidavit deposed to by the Appellant; attached to which is a copy of the letter of OFFER OF CREDIT FACILITY dated 19/2/2009 approving to the applicant his request for a loan of N1,900,000:00. The letter is marked as Exhibit A. A written address also accompanied the application. (pages 5 14 of the record of appeal). The 1st and 2nd Respondents filed a counter affidavit containing 6 paragraphs attached to which is a copy of a document titled: TRANSFER OF OWNERSHIP OF VEHICLE dated 6/3/2009 also marked as Exhibit A and a written address dated 15/12/2010. (pages 15 21 of the record of appeal). The 3rd and 4th Respondents also filed a 15 paragraphs counter affidavit deposed to by one Sgt. Bernard Osuafor attached to which are (a) Copy of Extract from Crime Diary and (b) Copy of a document headed: RECOVERY OF TRUCK FOR LOAN REPAYMENT dated 26/04/2010. A written address also accompanied the counter affidavit. (pages 22 32 of the record of appeal).
The Applicant filed a 14 paragraphs Further Affidavit dated 02/02/2011. (pages 40 42 of the records). He also filed a written address on reply on Points of Law dated 20/07/2011 (pages 55 58 of the record of appeal). Proceedings of the lower Court is on pages 81 109 of the Records.
Judgment was delivered by the learned trial Judge on 13/12/2013 (pages 113 127 of the record of appeal). After reviewing the affidavit evidence and other processes filed before him the learned trial Judge held thus: –
In all, I find that the arrest and detention of the Applicant by the 3rd and 4th Respondents was unexcusable (sic). The Applicants detention is neither necessary nor incidental, it clearly lacked resemblance of legal justification as such the arrest and detention must be condemned in its entirely. In addition, I hold the view that the 1st and 2nd Respondents brought the complaint that led to the
…………………….B…………………….
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