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Joseph Odogu V. Attorney-General Of The Federation & Ors. (1996)

OGUNDARE, J.S.C.

The only issue arising for determination in this appeal relates to the quantum of damages. The
facts appear not to be very much in dispute. The applicant, Joseph Odogu, now appellant in this
appeal, was arrested by the Police on 4th August 1980 at Festac Town and charged with the
offence of armed robbery.

He denied the charge. He was taken into custody. On 17th December 1980 he was arraigned
before a magistrate’s court where a formal charge of armed robbery was preferred against him.
He was remanded in prison custody and taken to Ikoyi Prison. Between that date and 1983 he
was taken a number of times to the Magistrate’s court but was on each occasion further
remanded because the prosecution told the court that the advice of the Director of Public
Prosecutions was yet to be obtained. On 19th December 1983, the charge against him was
withdrawn by the prosecution and the court struck out the charge and ordered his release.

He was released from Ikoyi prisons on that date but was promptly re-arrested by the Police and
detained at the Panti Street Police Station. On 27th March 1984 he was moved to the Kirikiri
Maximum Security Prisons where he was held until 7th July 1986 when again he was taken
back to the Panti Street Police Station and thereat detained. On 11th July 1986 he was
arraigned yet again before the Magistrate’s Court Yaba, Lagos on a charge of armed robbery
and was again remanded in prison custody where he remained until the proceedings leading to
this appeal commenced in 1987.

In December 1987 the Civil Liberties Organisation commenced proceedings in the name and on
behalf of the applicant, claiming, pursuant to Orders 2, 3, 4 and 6 of the Fundamental Rights
(Enforcement Procedure) Rules 1979.

“1. A declaration that the continued detention of the applicant at Ikoyi Prisons is unconstitutional,
unlawful, illegal, null and void.

An order to remove into this Honourable Court to be quashed the entire proceedings in charge
No. C/146/86 conducted between 11th July 1986 and 4th November 1987 at the Yaba
Magistrates Court No.3 Yaba, Lagos together with all the orders made therein.
A declaration that the applicant’s constitutional guarantee for a fair hearing is being infringed
and violated by the respondents.
An order releasing the applicant from unlawful custody forthwith.
Alternatively

An order releasing the applicant from detention at Ikoyi Prisons pending the commencement of
his trial for any offence or offences which the State may wish to charge the applicant with, upon
such condition or conditions as this Honourable Court may deem necessary to impose therein,
and thereafter

An order compelling the respondents to put the applicant up for immediate trial.
An award of N1million damages for unlawful detention.”

In the course of the proceedings in the Lagos High Court (Agoro, J. as he then was), it was
disclosed by Mr. Olokodana, State Counsel (Lagos State) that a case file concerning one
Joseph Odogu was received in the office of the Director of Public Prosecution (DPP) from the
Police on 3rd December 1980 and that on 24/3/81 the DPP wrote to the Police advising that
there was no sufficient evidence to sustain a charge of armed robbery against the subject and
that further investigations be carried out. There was no reply from the Police notwithstanding the
reminders sent by the DPP on 4/6/81 and 21/3/88. Mr. Olokodana further informed the court that
the DPP was of the view that there was no reason for the continued detention of the subject and
raised no objection to the applicant’s unconditional release from custody.

After addresses by learned State Counsel (Federation) appearing for the 1st, 4th and 5th
respondents and learned leading counsel for the applicant, Agoro J, on 31/3/88, ordered that
the applicant “be released from detention or from custody unconditionally forthwith”. The
applicant was on that day released from custody.

On 23/9/88, Agoro, J. delivered his ruling on the issue of damages. He found:

(1) That the applicant suffered “ordeal and deprivation …….. During the period from his arrest
on 4th August 1980 and his release from custody by this court on 31st March 1988, which
period the learned counsel for the applicant said was upwards on years 5 months and 20 days,”
and

(2) That the applicant “was never brought before a court or Tribunal of competent jurisdiction
within a reasonable time or at all as required under section 32(4) of the 1979 Constitution of the
Federal Republic of Nigeria.”

The learned trial Judge, in assessing damages, observed:

“In assessing the compensation payable to the applicant, I take into consideration the pain,
suffering and deprivation of personal liberty resulting from the interference with the person of the
present applicant by the Police, as well as the indignity, emotional stress, disgrace and
humiliation arising from the long incarceration or remand in Prison Custody and Police Stations
in the Lagos State. It seems to me that a sum of N2,000.00 would be a fair and reasonable
compensation to the applicant.”

He awarded that amount to the applicant.

The applicant was unhappy with the award and appealed to the Court of Appeal on the following
two grounds:

“(1) The damages awarded by the lower court is unreasonably low having regard to the
circumstances of the case.

Particulars of Error

The learned trial Judge erred in law in awarding N2,000.00 damages without considering the
fact that the appellant was arrested and detained for a period of 8 years (August 4, 1980 to
March 21, 1988) without any justification.

(2) The learned trial Judge erred in law in failing to consider the unchallenged affidavit evidence
of the appellant to the effect that:

(i) The appellant was engaged in selling wares and fashion clothings but as a result of his arrest
his business folded up and he was thrown out of his shop at Ojo Road Ajegunle Lagos by the
Landlord.”

(ii) Prior to his unlawful arrest and subsequent detention the appellant’s business yielded an
average annual profit of N20,000.00.

(iii) Consequent on his incarceration the appellant lost his Peugeot Saloon Car.

(iv) The appellant lost contact with his family.

(v) The appellant suffered tremendous mental and psychological anguish and his health has
been greatly impaired.”

The respondents did not cross-appeal on any issue arising from the decision of the trial court.
The Court of Appeal allowed the appeal and increased the award of compensation the applicant
was entitled to N75,000.00. In reaching this decision, the court below, per Ayoola, J.C.A. after
restating the principle that guides an appellate court in an appeal against award of damages,
observed:

“In this case, notwithstanding the blanket pronouncement of the learned Judge that the amount
he awarded would be fair and reasonable compensation, it seems to me clear from the
judgment that he completely ignored a relevant factor which he should have taken into
consideration in his assessment of compensation. That factor is the financial loss which flowed
directly from the appellant’s prolonged incarceration about which there was uncontroverted
evidence.

Besides, although the learned Judge made reference to the ‘ordeal and deprivation’ suffered by
the applicant during the period of his arrest on 4th August 1980 and his release on 31st March,
1988 and he mentioned a few other things which he said he took into consideration, which had
been alluded to earlier in this judgment, it is manifest that the amount awarded as compensation
for deprivation of liberty of such obvious enormity with consequential personal and sentimental
impact as profound and grave as the learned Judge himself mentioned, was so grossly low as
to be an erroneous estimate.

Where interference with a right is of substantial proportions and real damage has been shown,
as in this case, it is erroneous to award in the name of compensation an amount which is almost
contemptuous and derisory. In this case, I feel no hesitation in holding that this is a case in
which this court should interfere with the amount of compensation awarded by the court below.
Whatever compensation is awarded in such cases as this should truly reflect not only the actual
pecuniary loss of the victim but also the abhorrence of Society and the law for such gross
violation of human rights, particularly the right of personal liberty, as in this case, An unwitting
trivialisation of a serious matter by an inordinately low award should be avoided. Personal liberty
of the individual is a commodity of an inherently high value.”

I agree entirely with the passage above.

Ayoola, J.C.A. then went on to find:

“From the uncontroverted evidence, the financial loss suffered by the appellant by reason of the
collapse of his business consequent on his prolonged detention was, on the average,
N20,000.00 annually.”

In applying this finding, which is not challenged by either party in the appeal before us, the
learned Justice of Appeal observed:
“In my judgment, the period of the appellant’s unlawful detention was the period from the end of
1983 to about the middle of 1986 during which he was held in custody but was not taken to
court.”

Multiplying the period of unlawful detention as found by him to the finding of N20,000.00 per
annum, the learned Justice of Appeal awarded N50,000.00 as reasonable compensation for the
applicant’s collapsed business, and N25,000.00 general damages. He refused to award
exemplary damages.

It is against this judgment that the appellant has further appealed to this court contending, in the
main, that it was not open to the Court of Appeal to curtail the period of unlawful detention as
found by the trial High Court, since this was not an issue before it. It is also the contention of the
applicant in the appeal before us that exemplary damages ought to be awarded as the
circumstances justify it.

There was a definite finding of the trial Judge that the period of unlawful detention spanned a
period of about eight years. That finding was not challenged by either party in the appeal before
the court below. It was, therefore, not open to that court to review that finding with a view to
arriving at a different period of unlawful detention. That court, with respect, is clearly in error in
this regard. The finding of N20,000.00 per annum as reasonable compensation for the
applicant’s collapsed business is in line with the applicant’s claim. Therefore, the proper amount
that ought to be awarded to the applicant in respect of the compensation for the collapse of his
business would be N20,000.00 multiplied by 8 years and that is N160,000.00

I have considered the award of N25,000.00 general damages made by the court below in favour
of the applicant. Considering the findings of the two courts below on the treatment meted out to
the applicant during the period of his incarceration, I think an award of N40,000.00 general
damages ought to be made in his favour. As the value of the applicant’s car said to have been
destroyed, was not given, no award can be made for its loss.

Applicant’s counsel argued streneously in favour of award of exemplary damages. Exemplary

damages are usually awarded whenever the defendant’s conduct is sufficiently outrageous to
merit punishment, as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of
the law and the like. See: Eliochin (Nigeria) Limited & Ors v. Mbadiwe (1986) 1 NWLR (Pt.14)
147; (1986) ANLR 1. Having regard to the circumstances of this case, I have no doubt in my
mind that a case for the award of exemplary damages, if claimed, was made out.

There was, however, no specific claim for exemplary damages. The applicant came to court by
way of an application for the enforcement of his fundamental rights. His application was
supported by a 36-paragraph affidavit sworn to by one Clement Nwankwo, Legal Practitioner.
Nowhere in the application itself nor in the affidavit in support was any claim made for
exemplary damages.
Our attention was drawn at the oral hearing to the case of Shugaba Abdulrahman Darman v.
Minister of Internal Affairs (1981) 2 NCLR 459 where the court awarded exemplary damages.
The distinction lies in the fact that in that case aggravated and exemplary damages were
specifically claimed and pleaded.

In the matter before us, there was no such claim made for exemplary damages. I think it will be
wrong in the circumstance to award it, even though, on the facts, the case was made out for its
award, had it been claimed; exemplary damages must be claimed and proved before they can
be awarded – See: Eliochin (Nig.) Ltd. & Ors. v. Mbadiwe (supra).

From all I have been saying above, the conclusion I reach is that this appeal succeeds and it is
hereby allowed. The award of N75,000.00 made by the court below is increased to N200,000.00
(two hundred thousand Naira).

I award to the applicant/appellant a sum of N1,000.00 as costs of this appeal.

SC.58/1993