SEED VEST MICROFINANCE BANK PLC &ANOR v. OGUNSINA & ORS

CITATION: (2016) LPELR-41346(CA)

In the Court of AppealIn the Akure Judicial Division

Holden at Akure

ON FRIDAY, 13TH MAY, 2016Suit No: CA/AK/210/2013

Before Their Lordships:

SOTONYE DENTON-WEST Justice, Court of AppealMOHAMMED AMBI-USI DANJUMA Justice, Court of AppealJAMES SHEHU ABIRIYI Justice, Court of Appeal

Between1. SEED VEST MICROFINANCE BANK PLC2. MRS. LOLA AKINJOKO - Appellant(s)

And1. PAUL ADEDIGBO OGUNSINA2. CORPORAL ASHAMU3. COMMISSIONER OF POLICE, ONDO STATE

- Respondent(s)

RATIO DECIDENDI

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1. CONSTITUTIONAL LAW - CIVIL RIGHTS AND OBLIGATIONS: Whether the citizens ofNigeria are duty bound to report cases of commission of crime to the police"Now, a plethora of cases have held that any complaint made or information given to thoseinterested in investigating a matter (the police) will in the interest of the society beprivileged, once there is a reasonable belief that a crime has been committed. In the case ofOceanic Securities International Limited vs. Alh. Bashir Olaide Balogun & Ors., the Court heldthus: "Generally, it is the duty of citizens of the country to report cases of commission ofcrime to the police for their investigation and what happen after such report is entirely theresponsibility of the police. The citizens cannot be held culpable for doing their duty, unlessit is shown that it is done mala fide." It therefore flows from the foregoing that in answeringthe question on Issue Two (2), that the reporting of a commission of a crime to the policedoes not make the reporter culpable so long as it was not done in bad faith."Per DENTON-WEST, J.C.A. (Pp. 21-22, Paras. C-B) - read in context

2. CONTRACT - AGREEMENT: Whether parties are bound by the terms of the agreement"In the case of Insheno vs. Julius Berger (Nig.) Plc (2008) NWLR (pt. 1084) 582, it was heldthus: "It is settled law that parties to an agreement or contract are bound by the terms andconditions of the contract they signed." Also in the Supreme Court case of Best (Nigeria) Ltd.Vs. Blackwood Hodge (Nigeria) Ltd. (2011) 5 NWLR 95, the Court held thus: "It is basic thatto constitute a binding contract, there must be an agreement in which the parties are adidem on essentials terms and conditions thereof. The promise of each party must besupported by consideration."Per DENTON-WEST, J.C.A. (Pp. 34-35, Paras. E-B) - read incontext

3. COURT - JURISDICTION: Importance of jurisdiction in the process of adjudication"Jurisdiction of a Court has been defined as the authority which a Court possesses to decidematters litigated before it or to take cognizance of matters presented in a formal way for itsdecision. See: National Bank of Nig. Ltd. Vs. Shoyoye (1977) 5 SC 181, Achineku vs. Ishagba(1988) 4 NWLR (pt. 89) 411 and Enuegwu vs. Okefi (2000) 3 NWLR (pt. 650) 620. Also in thecase of Ogunmokun vs. Milad, Osun State (1999) 3 NWLR (pt. 594) 261 @ 265 where itstated thus: "Jurisdiction of the Court is the basis, foundation and life-wire of access to Courtin adjudication under Nigerian Civil process. As Courts are set up under the Constitution,Decrees, Acts, Laws and Edicts, they cloak the courts with the powers and jurisdiction ofadjudication. If the Constitution, Decrees, Acts, Laws and Edicts do not grant jurisdiction to aCourt or Tribunal, the Court and the parties cannot by agreement endow it with jurisdictionas no matter how well intentioned and properly conducted the proceedings, once it isincompetent, it is a nullity and an exercise in futility." Also in Shell Petroleum DevelopmentCompany Nigeria Limited vs. Isaiah (2001) 5 SC (pt. 11) 1, Mohammed, JSC cited withapproval views expressed by the learned author of Halsbury Laws of England and observedthus: "Jurisdiction of a Court has also been judicially defined as very fundamental andpriceless 'commodity' in the judicial process. It is the fulcrum, centrepin, or the main pillarupon which the validity of any decision of any Court stands and around which other issuesrotate. It cannot be assumed or implied, it cannot also be conferred by consent oracquiescence of parties."The issue of jurisdiction of Court is therefore very vital and of utmost importance in theadministration of justice and the settled position of the law is that it can be raised at anystage of a case, be it at the trial, on appeal to Court of Appeal (as in the instance case) or tothe Supreme Court. It's a fortiori the Court can suo motu raise. Though it is desirable thatpreliminary objection be raised early on issue of jurisdiction so as to save time and costs butonce it is apparent to any party that the Court may not have jurisdiction it can be raisedeven viva voce. See the cases of P.E. Ltd. vs. Leventis Trad. Co. Ltd. (1992) NWLR (pt. 244)675, Gbadamosi Adegoke vs. Chief Nathaniel Agboola Adibi (1992) 5 NWLR (pt.242) 410,Olutola vs. Unilorin (2004) 18 NWLR (pt.905) 416, Egharevba vs. Eribo (2010) 9 NWLR (pt.1199) 411 S.C."Per DENTON-WEST, J.C.A. (Pp. 10-13, Paras. F-A) - read in context

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4. CRIMINAL LAW AND PROCEDURE - ISSUANCE OF DUD CHEQUE: Whether issuance ofdud cheque is a criminal offence"It is instructive to point out clearly that the issuance of dud cheques is a criminal offenceunder Section 1 of the Dishonoured Cheques (Offences) Act Cap D11 Laws of the Federationof Nigeria 2004 for which the Appellants was entitled to make a report to the police. See:Chief (Dr.) O. Fajemirokun vs. Commercial Bank Nigeria Ltd. & Anor (2009) 2-3 SC (pt.1135)58."Per DENTON-WEST, J.C.A. (Pp. 23-24, Paras. F-B) - read in context

5. EQUITY - PRINCIPLES OF EQUITY: Whether parties seeking the discretion of court for anymatter must come with clean hands"It is often stated that one who comes into equity must come with clean hands (oralternatively, equity will not permit a party to profit by his own wrong). In other words, if youask for help about the actions of someone else but have acted wrongly, then you do nothave clean hands and you may not receive the help you seek. I am not saying that a "badperson" cannot obtain the aid of equity, no, equity does not demand that its suitors shallhave led blameless lives. All I am saying is that if there is a nexus between the applicant'swrongful act and the rights he wishes to enforce, then the defence of unclean hands mayapply."Per DENTON-WEST, J.C.A. (Pp. 30-31, Paras. F-B) - read in context

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6. JURISDICTION - CONCURRENT JURISDICTION: Concurrent jurisdiction of the Federal HighCourt and State High Court over cases of fundamental human right"By virtue of the Nigerian 1999 Constitution, the Federal and State High Courts are Courts ofco-ordinate jurisdiction. The Courts are however autonomous and independent of each otherand in some areas both Courts exercise concurrent jurisdiction over the same subjectmatter. One of the areas includes application for enforcement of fundamental right/disputearising from banker and customer relationship and trial of federal Court cases and matters.The first area of our law where both the Federal High Court and State High Court exercisejurisdiction concurrently is for the enforcement of Fundamental Rights guaranteed underChapter IV of the 1999 Constitution. The Constitution as rightly argued by the 1stRespondent confers jurisdiction on a High Court in a State to entertain and determine anymatter relating to enforcement of fundamental right guaranteed by the Constitution. Section46(1)(2) of the 1999 Constitution provides as follows: "(1) Any person who alleges that anyof the provision of this chapter has been, is being or likely to be contravened in any state inrelation to him may apply to a High Court in that State for redress,(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdictionto hear and determine any application made to it in pursuance of the provision of thisSection and may make such orders, issue such writs and give such directions as it mayconsider appropriate for the purpose of enforcement or securing the enforcement within thatstate of any right to which the person who makes the application may be entitled under thischapter." It is noteworthy that the above provision (of Section 46) as well as Section 318(1)of the 1999 Constitution, which is the interpretation section of the Constitution, does notdefine a "High Court" referred to in Section 46 of the 1999 Constitution. In fact under the1979 Constitution of Nigeria, a "High Court" was defined as "the Federal High Court or theHigh Court of a State". See: Section 277(1) of the 1979 Constitution and Order 1 Rule 2 ofthe Fundamental Rights (Enforcement Procedure) Rules, 1979, which came into force on the1st of January 1980. The term a "High Court" in Section 46 of the 1999 Constitution wouldhave the same meaning given to it under the 1979 Constitution and the Fundamental Rights(Enforcement Procedure) Rules 1979 that is applicable as an existing law by virtue of Section315 of the 1999 Constitution. The provision of Section 42(1) of the 1979 Constitution whichis in pari materia with Section 46(1) of the 1999 Constitution was interpreted by theSupreme Court in the case of Broniks Motors Ltd. Vs. Wema Bank Ltd. (1983) 1 SCNLR 296 tothe effect that where both the Federal High Court and the State High Court exists in a State,they have concurrent jurisdiction in matters pertaining to Fundamental Rights. It thereforefollows that a person whose Fundamental Right is breached, or being breached, or about tobe breached, may apply under Section 46(1) of the Constitution to the judicial division of theFederal High Court in a State or the High Court in a State or the High Court in the FederalCapital Territory, Abuja in which the breach occurred or is occurring or about to occur. Onthis issue, may I conclude by stating that Section 42(1) is a special provision created tohandle specifically matters of Fundamental Rights. It cloaks any High Court in a State withthe requisite jurisdiction in matters of fundamental rights irrespective of who is affected byan action founded on such rights. On the other hand, Section 230(1)(5) of the 1979Constitution (as amended) is a general provision. The law is that where there is a specialprovision in the same statute capable of covering the same subject-matter, it is not to beinterpreted as derogating from what has been specially provided for individually unless anintention to do so is unambiguously declared. See Federal Mortgage Bank of Nigeria vs. Olloh(2002) 4 S.C. (pt. 11) 117; or (2002) 9 NWLR (pt. 773) 475 @ 489; Grace Jack vs. Universityof Agriculture, Makurdi (2004) 1 Sc (pt. 11) 100."Per DENTON-WEST, J.C.A. (Pp. 13-16, Paras.B-E) - read in context

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7. POLICE - POWERS OF THE POLICE: Whether the police can exercise some measure ofdiscretion in the exercise of its powers"In the case of Mrs. Baby Justine Luna vs. Commissioner of Police, Rivers State PoliceCommand & Ors. (2010) LPELR - 8642 (CA) it was held that the police has the power toarrest and detain pending investigation in some cases and this power is derived from"Section 214 of the Constitution of the Federal Republic of Nigeria, 1999 and that the mereexercise of that power cannot by virtue of Section 35 (1) of the 1999 Constitution amount toa breach of the 1st Respondent's Fundamental Right, even when such exercise result in thecurtailing of his freedom of movement. It is also to be noted that in exercising this power toarrest the 2nd 3rd and 4th Respondent by virtue of Section 4 and 24 of the Police Act Cap359 LFN, have a discretion upon reasonable suspicion of committing a crime to arrest anyperson, including the 1st Respondent and it is generally not the business of the Courts tofetter this discretion. See: Fawehinmi vs. I.G.P. (2002) FWLR (Pt. 1355) @ 1376 - 1377. Inany case, where the police use their powers improperly, the position of the law is that theCourt can stop the use of the power for that improper purpose, in other words, the Court canmake an order restraining the police from arresting on some particular improper occasion orfor some particular improper purpose but never to restrain the police perpetually fromperforming its lawful and constitutional duties."Per DENTON-WEST, J.C.A. (Pp. 24-25, Paras.D-E) - read in context

8. WORDS AND PHRASES - "MALA FIDE": Meaning of "mala fide""According to the Black's Law Dictionary, Eight Edition, MALAFIDE/BAD FAITH is defined as"dishonesty of belief or purpose." Also in the case ofAkininwo vs. Nsirim (2008) I NWLR (pt.1093) 439 mala fide was held to mean "the opposite of bona fide". It simply means bad faithas opposed to bona fide, which is good faith. Mala fide projects a sinister motive designed tomislead or deceive another. Mala fide is more than bad judgment or mere negligence. It is aconscious doing of wrong arising from dishonest purpose or moral obliquity, Mala fide is nota mistake or error but a deliberate wrong emanating from ill-will."Per DENTON-WEST, J.C.A.(P. 22, Paras. C-E) - read in context

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SOTONYE DENTON-WEST, J.C.A.(Delivering theLeading Judgment): This is an appeal against thejudgment of Honourable Justice A. O. Adebusoye of theOndo State High Court of Justice delivered on the 14th dayof March 2013. The Applicant/Respondents filed anapplication for the enforcement of his Fundamental HumanRights dated 28th, day of September 2012, praying theCourt for the following reliefs: i. A DECLARATION that the arrest, detention and torture ofthe Applicant from the 24th September, 2012 to 26th day ofSeptember 2012 is illegal, unlawful, a violation of hisfundamental rights to personal liberty, freedom ofmovement, dignity of human person as guaranteed by the1999 Constitution of the Federal Republic of Nigeriaamount to false imprisonment.ii. A DECLARATION that the further threat of arrest anddetention of the Applicant by the 5th Respondent isunlawful, unconstitutional and violation of his right topersonal liberty.iii. A DECLARATION that the relationship between theApplicant and the 1st Respondent is purely contractual andthat the 3rd, 4th and 5th Respondents are not entitled tomediate and or

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interfere in their affairs.

iv. The sum of N50,000,000.00 (Fifty Million Naira) as

general damages for the pain and psychological trauma

suffered by the Applicant when he was unlawfully arrested,

detained and tortured by the agents of the 4th and 5th

Respondents at the instruction and directive of the 2nd

Respondents.

v. AN ORDER OF PERPETUAL INJUNCTION restraining

the Respondents, their agents, privies, servants and

whosoever from fuller threat, arrest, detention, harassment

and embarrassment of the Applicants save only if the

Applicant commit an offence.

After the exchange of pleadings and completion of trial, the

High Court of Justice granted the Applicant/Respondent the

following reliefs.

i. A DECLARATION that the event, detention and torture of

the Applicant from 24th September 2012 to 26th

September 2012 by the 1st - 4th Respondents is illegal,

unlawful, a violation of his fundamental right to personal

liberty, freedom of movement, dignity of human person as

guaranteed by the 1999 Constitution of the Federal

Republic of Nigeria and amounts to false imprisonment.

ii. A DECLARATION that the relationship between the

Applicant

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and 1st Respondent is purely contractual and that the 3rd

and 4th Respondents are not entitled to mediate and or

interfere in their affairs.

iii. The sum of N2,500,000 (Two Million Five Hundred

Thousand Naira) is hereby awarded as general damages

against the 1st - 4th Respondents jointly and severally for

the pain and psychological trauma suffered by the

Applicant when he was unlawfully arrested, detained and

tortured by the agents of the 4th Respondent at the

instruction and directive of the 2nd Respondent.

iv. An order of perpetual injunction, restraining the 1st -

4th Respondents, their agents, privies, servants and or

whosoever from further threat, arrest, detention,

harassment and embarrassment of the Applicant save only

if the Applicant commits any offence.

And also the award of N5,000 as damages in favour of the

Applicant against the 1st - 4th Respondents.

The 1st and 2nd Appellant/Respondents being unsatisfied

with the said judgment appealed to this Court vide a Notice

of Appeal dated 12th day of June 2013 and filed 14th day of

June 2013.

When the appeal came up for hearing on the 10th day of

March 2016, P. K. Salami

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(Esq.), counsel for the Appellants, adopted their Brief of

Argument dated 27th day of August 2014 and filed on the

28th day of August 2014. And also filed a Reply to the 1st

Respondent's brief dated 27th day of November 2015 and

filed on the 1st day of December 2015. This Court was

urged to allow this appeal and set aside the Judgment of

the lower Court.

Present with Sam Oloruntoba (Esq.) was Pius Daodu (Esq.),

Counsels for the 1st Respondent who adopted the 1st

Respondent's brief dated and filed on 6th November 2015.

Likewise, the counsel for the 1st Respondent urged this

Court dismiss this appeal and affirm the judgment of the

lower Court.

The Appellants formulated three (3) issues for

determination.

1. Whether or not the learned trial Judge properly assumed

jurisdiction in this case in Section 251(1) (P) (Q) (R) and (S)

of the Constitution of the Federal Republic of Nigeria 1999

(as amended).

2. Whether or not the person who reports the commission

of an offence to the police can be culpable for doing so,

under the law.

3. Whether or not from the facts contained in the processes

filed by the Applicant/1st

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Respondent, he made out against the 1st and 2nd

Appellants, a case of violation of his fundamental human

rights, as to entitle him to an order enforcing his rights in

that regard.

On the part of the 1st Respondent they adopted Issues 2

and 3 as formulated by the Appellant was adopted as theirs

but submitted that Issue One (1) of the 1st Respondent as

being irrelevant to this instant appeal as no issue of

jurisdiction of the Federal High Court relating to Sections

251 (1) (P) (Q) (R) and (S) of the Constitution of the Federal

Republic of Nigeria 1999 (as amended) was raised in the

pleadings or affidavit evidence. And also Order 6 Rule 3 of

the Court of Appeal Rules has not been complied with and

that the issues were not also tied to grounds of list of

authorities.

ISSUE ONE (1)

The counsel for the Appellants' contention on this issue was

that the trial Judge erred in law when it assumed

jurisdiction in this case contrary to Section 251(1) (P) (Q)

(R) and (S) of the Constitution of the Federal Republic of

Nigeria (as amended).

It was the submission of the learned counsel that the 3rd

Respondent (The Commissioner of Police of Ondo State) is

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not the employer of both the 2nd and 3rd Respondent and

is both agents of the Federal Government. According to the

learned counsel Section 251(1) provides:-

"Notwithstanding anything to the contrary contained

in this Constitution and in addition to such other

jurisdiction as may be conferred upon it by an Act of

the National Assembly, the Federal High Court shall

have and exercise jurisdiction to the exclusion of any

other Court in civil cases and matters:-

(p) The Administration or the management and

control of the Federal Government or any of its

Agencies.

(q) Subject to the provisions of this Constitution, the

operation and interpretation of this Constitution in so

far affects the Federal Government or any of its

agencies; and

(r) Any action or proceeding for a declaration or

injunction affecting the validity of any executive or

administrative action or decision by the Federal

Government or any of its agencies.".

Learned counsel for the Appellant argued that the 2nd, 3rd

and 4th Respondents being agents of the Federal

Government bestows solely on the Federal High Court the

required jurisdiction to entertain the instant

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matter and not the State High Court.

Learned counsel argued further that if the Court therefore

has no jurisdiction to hear any matter before it, any step

taken in relation to the matter is a nullity and is void.

Referred to the cases of Adesola vs. Abidaye (1999) 14

NWLR (pt. 637) 28.

Counsel also referred to the cases of Western Steel

Workers Ltd. Vs. Iron & Steel Workers Union (1986) 2

NSCC (vol. 17(786 @ 798 in support of the argument that

the issue of jurisdiction can be raised at any stage of the

proceedings even on appeal.

The learned counsel for the 1st Respondent on his part

submitted that the issue of jurisdiction is generally

approached from three dimensions, and these are

territorial jurisdiction, the subject matter jurisdiction and

the jurisdiction on persons.

Counsel argued that on territorial jurisdiction, the Federal

High Court enjoys nationwide jurisdiction whereas a State

High Court is confined to the territory of the State and that

of the Federal Capital territory.

On the subject matter jurisdiction, the High Court of a

State, by the provision of Section 236 of the 1999

Constitution enjoys unlimited jurisdiction

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and the Federal High Court has limited jurisdiction or

jurisdiction on some enumerated subject matters. Counsel

for the Respondent submitted that a State High Court has

jurisdiction mostly over natural persons while the Federal

High Court has jurisdiction over both natural and artificial

persons.

Counsel for the 1st Respondent in his submission argued

that there were areas where both the Federal High Court

and the High Court of State enjoyed concurrent jurisdiction

and that the enforcement of Fundamental Human Rights as

enshrined in Chapter IV of our Constitution was one of

such. Counsel cited Section 46(1) (2) of the 1999

Constitution has been relevant to the question raised. The

counsel for the 1st Respondent contended that this

application was irrespective of whether the right involved

comes within the legislative competence of the Federation

or the State or the Federal Capital Territory.

The 1st Respondent further argued that Section 46(2)(b) of

the Constitution while conferring jurisdiction in respect of

certain matters however confers jurisdiction involving

disputes between a bank and its customer in the ordinary

course of banking business on

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the State High Court. Counsel for the 1st Respondent

stated that a careful reading of the facts contained therein

shows that the dispute occurred between the SEEDVEST

MICROFINANCE BANK PLC (Appellant) and its customer

(1st Respondent) in the ordinary course of banking

business.

Conclusively on Issue One (1) the 1st Respondent urged

this Court to hold that the State High Court presented the

requisite jurisdiction to entertain the matter.

In the Appellant's Reply Brief of Argument, it was

submitted that the 2nd, 3rd and 4th Respondents are

Agencies of the Federal Republic of Nigeria and as such by

virtue of Section 251(P) (Q) (R) and (S) of the 1999

Constitution should be tried by the Federal High Court.

Counsel further submitted that Paragraphs 2.00, 2.01, 2.02,

2.03, 2.04, 2.05, 2.06, 2.07 and 2.08 of the 1st

Respondent's Brief of Argument has nothing to do with this

case been an enforcement of fundamental rights. Counsel

referred to the cases of Min. of Internal Affairs vs.

Shugaba (1982) 3 NCLR, Adetona vs. I.G. Ent. Ltd.

(2011)7 NWLR (pt. 1247) as cited by the learned counsel

for the 1st Respondent as been opposite to the instant case

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and therefore should be discountenanced. Counsel referred

to the cases of Elelu-Habeeb vs. A.G. Federation & 2

Ors. (2012) ALL FWLR (pt. 629) 1011, Igbinedion vs.

Selo-Ojemen & Anor (2013) 1 SCM 7 @ 84, Agbule vs.

W.R.& P. Co. Ltd. (2013) ALL FWLR (pt. 688) 829.

The learned counsel for the Appellant reiterated that the

lower Court had no jurisdiction to hear and determine this

matter and declared it null and void to so do. Referred to

the case of Adesola vs. Abidoye (1999) 14 NWLR

(pt.637) 28 and Section 251(1) (p) (q) (r) and (s) of

the 1999 Constitution.

RESOLUTION OF ISSUE ONE (1)

As can be gleaned the 1st Respondent on page 1 paragraph

1.05, objected to the issue of jurisdiction which was freshly

raised by the Appellant and urged this Honourable Court to

discountenance it as it was not raised in the pleadings or

affidavit evidence. This stance of the 1st Respondent is at

parallel with the position of the law as regards jurisdiction.

Jurisdiction of a Court has been defined as the authority

which a Court possesses to decide matters litigated before

it or to take cognizance of matters presented in a formal

way for its decision.

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See: National Bank of Nig. Ltd. Vs. Shoyoye (1977) 5

SC 181, Achineku vs. Ishagba (1988) 4 NWLR (pt. 89)

411 and Enuegwu vs. Okefi (2000) 3 NWLR (pt. 650)

620.

Also in the case of Ogunmokun vs. Milad, Osun State

(1999) 3 NWLR (pt. 594) 261 @ 265 where it stated

thus:

“Jurisdiction of the Court is the basis, foundation and

life-wire of access to Court in adjudication under

Nigerian Civil process. As Courts are set up under the

Constitution, Decrees, Acts, Laws and Edicts, they

cloak the courts with the powers and jurisdiction of

adjudication. If the Constitution, Decrees, Acts, Laws

and Edicts do not grant jurisdiction to a Court or

Tribunal, the Court and the parties cannot by

agreement endow it with jurisdiction as no matter

how well intentioned and properly conducted the

proceedings, once it is incompetent, it is a nullity and

an exercise in futility.”

Also in Shell Petroleum Development Company Nigeria

Limited vs. Isaiah (2001) 5 SC (pt. 11) 1, Mohammed, JSC

cited with approval views expressed by the learned author

of Halsbury Laws of England and observed thus:

“Jurisdiction of a Court has also been judicially

defined

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as very fundamental and priceless 'commodity' in the

judicial process. It is the fulcrum, centrepin, or the

main pillar upon which the validity of any decision of

any Court stands and around which other issues

rotate. It cannot be assumed or implied, it cannot

also be conferred by consent or acquiescence of

parties.”

The issue of jurisdiction of Court is therefore very vital and

of utmost importance in the administration of justice and

the settled position of the law is that it can be raised at any

stage of a case, be it at the trial, on appeal to Court of

Appeal (as in the instance case) or to the Supreme Court.

It's a fortiori the Court can suo motu raise. Though it is

desirable that preliminary objection be raised early on

issue of jurisdiction so as to save time and costs but once it

is apparent to any party that the Court may not have

jurisdiction it can be raised even viva voce. See the cases of

P.E. Ltd. vs. Leventis Trad. Co. Ltd. (1992) NWLR (pt.

244) 675, Gbadamosi Adegoke vs. Chief Nathaniel

Agboola Adibi (1992) 5 NWLR (pt.242) 410, Olutola

vs. Unilorin (2004) 18 NWLR (pt.905) 416, Egharevba

vs. Eribo (2010) 9 NWLR (pt. 1199) 411

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S.C.

However as to the question whether the lower Court (State

High Court) had the jurisdiction to have heard and

determined the application for enforcement of

Fundamental Human Rights, the position of the counsel for

the 1st Respondent is at tandem with mine.

By virtue of the Nigerian 1999 Constitution, the Federal

and State High Courts are Courts of co-ordinate

jurisdiction. The Courts are however autonomous and

independent of each other and in some areas both Courts

exercise concurrent jurisdiction over the same subject

matter. One of the areas includes application for

enforcement of fundamental right/dispute arising from

banker and customer relationship and trial of federal Court

cases and matters.

The first area of our law where both the Federal High Court

and State High Court exercise jurisdiction concurrently is

for the enforcement of Fundamental Rights guaranteed

under Chapter IV of the 1999 Constitution. The

Constitution as rightly argued by the 1st Respondent

confers jurisdiction on a High Court in a State to entertain

and determine any matter relating to enforcement of

fundamental right guaranteed by the Constitution. Section

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46(1)(2) of the 1999 Constitution provides as follows:

“(1) Any person who alleges that any of the provision

of this chapter has been, is being or likely to be

contravened in any state in relation to him may apply

to a High Court in that State for redress,

(2) Subject to the provisions of this Constitution, a

High Court shall have original jurisdiction to hear

and determine any application made to it in

pursuance of the provision of this Section and may

make such orders, issue such writs and give such

directions as it may consider appropriate for the

purpose of enforcement or securing the enforcement

within that state of any right to which the person who

makes the application may be entitled under this

chapter."

It is noteworthy that the above provision (of Section 46) as

well as Section 318(1) of the 1999 Constitution, which is

the interpretation section of the Constitution, does not

define a "High Court" referred to in Section 46 of the 1999

Constitution. In fact under the 1979 Constitution of

Nigeria, a "High Court" was defined as "the Federal High

Court or the High Court of a State". See: Section 277(1) of

the 1979 Constitution and

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Order 1 Rule 2 of the Fundamental Rights (Enforcement

Procedure) Rules, 1979, which came into force on the 1st of

January 1980. The term a "High Court" in Section 46 of the

1999 Constitution would have the same meaning given to it

under the 1979 Constitution and the Fundamental Rights

(Enforcement Procedure) Rules 1979 that is applicable as

an existing law by virtue of Section 315 of the 1999

Constitution.

The provision of Section 42(1) of the 1979 Constitution

which is in pari materia with Section 46(1) of the 1999

Constitution was interpreted by the Supreme Court in the

case of Broniks Motors Ltd. Vs. Wema Bank Ltd.

(1983) 1 SCNLR 296 to the effect that where both the

Federal High Court and the State High Court exists in a

State, they have concurrent jurisdiction in matters

pertaining to Fundamental Rights. It therefore follows that

a person whose Fundamental Right is breached, or being

breached, or about to be breached, may apply under

Section 46(1) of the Constitution to the judicial division of

the Federal High Court in a State or the High Court in a

State or the High Court in the Federal Capital Territory,

Abuja in which the breach occurred or is

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occurring or about to occur.

On this issue, may I conclude by stating that Section 42(1)

is a special provision created to handle specifically matters

of Fundamental Rights. It cloaks any High Court in a State

with the requisite jurisdiction in matters of fundamental

rights irrespective of who is affected by an action founded

on such rights. On the other hand, Section 230(1)(5) of the

1979 Constitution (as amended) is a general provision. The

law is that where there is a special provision in the same

statute capable of covering the same subject-matter, it is

not to be interpreted as derogating from what has been

specially provided for individually unless an intention to do

so is unambiguously declared. See Federal Mortgage

Bank of Nigeria vs. Olloh (2002) 4 S.C. (pt. 11) 117;

or (2002) 9 NWLR (pt. 773) 475 @ 489; Grace Jack vs.

University of Agriculture, Makurdi (2004) 1 Sc (pt.

11) 100.

Flowing from all I have said, the lower Court (High Court)

possessed the requisite jurisdiction to have heard and

determined the application hence Issue 1 is thereby

resolved in favour of the 1st Respondent and against the

Appellants.

ISSUE TWO (2)

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Whether or not the person who reports the

commission of an offence to the Police can be

culpable for doing so under the law.

The learned counsel for the Appellants submitted that all

the Appellants did was to lay their complaints to the 2nd,

3rd and 4th Respondents about the alleged criminal acts of

the 1st Respondent who only invited the 1st Respondent

over to establish the veracity of the complaint, moreso it

was the counsel's submission that the 1st Respondent

instituted the action for the enforcement of his fundamental

rights in order to avoid prosecution.

The learned counsel for the Appellants contended that the

1st Respondent had concluded plans to defraud the

company by removing the Honda Accord car with Reg. No.

FM66LND (the collateral) from the jurisdiction of the Bank

without its consent, coupled with the issuance of three (3)

dud cheques, a criminal offence under Section 1 of the

Dishonoured Cheques (Offence) Act, CAP D11, Laws of

Federal Republic of Nigeria 2004 and the failure of the 1st

Respondent to pay the remaining balance of the loan he

took necessitated the 1st Respondent to report the case

which already was tainted with

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criminality (issuance of dud cheques) to the appropriate

authority i.e. the Nigeria Police Force.

Learned counsel for the Appellant urged this Honourable

Court that in view of the above, judgment delivered jointly

and severally against the 1st to 4th Respondents should be

set aside against the 1st and 2nd Appellants.

On the part of the 1st Respondent, the learned counsel

submitted that the authority of Fajemirokun vs. CB Nig.

Ltd. (2009) 5 NWLR (pt.1 135) page 589 @ 600 B-C

and 606 paras a-E as cited by the Appellants was apt that

it was the duty of citizens of Nigeria to report cases of

commission of crime to the police for investigation and

whatever happens thereafter is entirely the responsibility

of the Police.

However, the learned counsel for the 1st Respondent

submitted that there was a caveat to this, and that was that

the reporting should not be done malafide; in bad faith.

Learned counsel argued that the Appellants reported a case

of obtaining money by false pretence which was done in

bad faith and that the police invitation to the matter was

not contained in the terms and condition for the loan.

Counsel submitted that

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the affidavit evidence of the Appellants showed that he was

arrested due to the loan he took and it was done mala fide

to deceive and mislead the police to take unlawful action

against the 1st Respondent. He referred to the case of

Fajemirokun vs. CB Nigeria Ltd. (2009) 5 NWLR (pt.

1135) @ page 588, page 595 – 596 ration 10.

In the Appellants' Reply Brief of Argument to Issue Two (2),

the learned counsel for the Appellant submitted that it was

trite in law that a citizen cannot be held culpable for doing

his civic duty unless it is shown to be done mala fide but

this was done in bona fide and not mala fide as submitted

by the 1st Respondent. It was the learned counsel to the

Appellants' contention that the issuance of dud cheques

and removal of the Honda Accord vehicle (loan security)

from the jurisdiction of the Bank (Ibadan) to Akure without

the knowledge of the Appellants was what was reported to

the police for investigation which was in compliance to

Section 4 of the Police Act, 1999 Constitution. Counsel for

the Appellant argued that it was settled law in the case of

Fajemirokun vs. Commercial Bank Ltd. (supra) that:

"'Where an individual

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has lodged the facts of his/her complaint to the police

as in this case by way of Petition, and the police

thereupon on their own proceeded to carry out an

arrests and detention, then the act of imprisonment is

that of the police."

Also cited was the case of Atiku vs. State (2010) (pt. 1

199) 241- 257, Section 419, 419A and 419B of the

Criminal Code Act, CAC C38 LFN 2004, Section 4,24

and 28 of the Police Act CAP P18 LFN 2004, all was to

the effect that the Nigerian Police is charged by the law

with the duty to investigate all allegations of commission of

crimes reported to it by members of the Nigerian public

and the crime that was reported to the police fell under

such category.

Learned counsel for the Appellants submitted that the 1st

Respondent failed to show any form of breach to his

fundamental rights entitling him to judgment award of the

sum of N2,500,000.00 (Two Million, Five Hundred

Thousand Naira) as general damages against the 1st to 4th

Respondents jointly and severally for the pain and

psychological trauma suffered by the Applicant when there

was no sufficient evidence placed before the Court.

Learned counsel for the Appellants therefore

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urged this Court to set aside the judgment of the lower

Court and allow this appeal.

RESOLUTION OF ISSUE TWO (2)

As to the question on Issue 1, the Appellant maintains that

he was only exercising his civic duty and in good faith

(uberrimae fidei) in the reporting of a criminal act to the

appropriate authority, the police and therefore could not be

held culpable while the 1st Respondent on his part,

advanced that if the report/complaint made out to the

police was in bad faith (mala fide) then it would not excuse

the culpability of the Appellant.

Now, a plethora of cases have held that any complaint

made or information given to those interested in

investigating a matter (the police) will in the interest of the

society be privileged, once there is a reasonable belief that

a crime has been committed.

In the case of Oceanic Securities International Limited

vs. Alh. Bashir Olaide Balogun & Ors., the Court held

thus:

"Generally, it is the duty of citizens of the country to

report cases of commission of crime to the police for

their investigation and what happen after such report

is entirely the responsibility of the police. The

citizens

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cannot be held culpable for doing their duty, unless it

is shown that it is done mala fide.”

It therefore flows from the foregoing that in answering the

question on Issue Two (2), that the reporting of a

commission of a crime to the police does not make the

reporter culpable so long as it was not done in bad faith.

Was the report made by the Appellants to the police done

mala fide as claimed by the 1st Respondent? According to

the Black's Law Dictionary, Eight Edition, MALAFIDE/BAD

FAITH is defined as "dishonesty of belief or purpose."

Also in the case ofAkininwo vs. Nsirim (2008) I NWLR

(pt. 1093) 439 mala fide was held to mean "the opposite

of bona fide". It simply means bad faith as opposed to bona

fide, which is good faith. Mala fide projects a sinister

motive designed to mislead or deceive another. Mala fide is

more than bad judgment or mere negligence. It is a

conscious doing of wrong arising from dishonest purpose or

moral obliquity, Mala fide is not a mistake or error but a

deliberate wrong emanating from ill-will.

A quick glance at page 74 of the Record of Civil Appeal,

Paragraph 9 - 16 of the 1st Respondent's Further Affidavit

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shows that the 1st Respondent had not discharged his

monthly debt payment. It is pertinent to note that this six

months (6) loan for N800,000.00 (Eight Hundred Thousand

Naira) was according to page 60 of Record of Appeal

approved on the 4th of August 2011 and was to be fully

discharged by the 1st Respondent on 3rd of February 2012

which the 1st Respondent failed to fully discharge and

thereafter sought for Rescheduling of the Outstanding via

Exhibit G (1st Respondent's letter) dated 12th of April

2012, an application which granted the 1st Respondent

another six months to pay the outstanding. Yet again, the

1st Respondent failed to pay a single kobo until the

complaint was made to the police in September - almost

five months after! See page 41 paragraph 25 of the 1st and

2nd Respondents' (Appellants) Counter Affidavit which has

remained unrefuted.

Also coupled with this was the issuance of dud cheques and

the removal of the security for the loan (Honda Accord

vehicle) from the reach of the Appellants after executing a

document pledging it as a collateral with three bank

cheques. See also Exhibit A on page 44 of record of Civil

Appeal.

It is

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instructive to point out clearly that the issuance of dud

cheques is a criminal offence under Section 1 of the

Dishonoured Cheques (Offences) Act Cap D11 Laws of the

Federation of Nigeria 2004 for which the Appellants was

entitled to make a report to the police. See: Chief (Dr.) O.

Fajemirokun vs. Commercial Bank Nigeria Ltd. &

Anor (2009) 2-3 SC (pt.1135) 58.

In the light of the following, would it then be right to say

that the reporting of the 1st Respondent was done with ill-

will? I would say a resounding NO! it is obviously clear that

the Appellants had reasonable cause to report the acts of

the 1st Respondent to the appropriate authority (the

Nigeria Police) who has the constitutional powers to act on

it.

In the case of Mrs. Baby Justine Luna vs. Commissioner

of Police, Rivers State Police Command & Ors. (2010)

LPELR - 8642 (CA) it was held that the police has the

power to arrest and detain pending investigation in some

cases and this power is derived from Section 214 of the

Constitution of the Federal Republic of Nigeria, 1999 and

that the mere exercise of that power cannot by virtue of

Section 35 (1) of the 1999 Constitution amount to

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a breach of the 1st Respondent's Fundamental Right, even

when such exercise result in the curtailing of his freedom

of movement.

It is also to be noted that in exercising this power to arrest

the 2nd 3rd and 4th Respondent by virtue of Section 4 and

24 of the Police Act Cap 359 LFN, have a discretion upon

reasonable suspicion of committing a crime to arrest any

person, including the 1st Respondent and it is generally not

the business of the Courts to fetter this discretion.

See: Fawehinmi vs. I.G.P. (2002) FWLR (Pt. 1355) @

1376 - 1377. In any case, where the police use their

powers improperly, the position of the law is that the Court

can stop the use of the power for that improper purpose, in

other words, the Court can make an order restraining the

police from arresting on some particular improper occasion

or for some particular improper purpose but never to

restrain the police perpetually from performing its lawful

and constitutional duties.

In a nutshell, I am yet to be convinced that the Appellants

made out a report to the police out of ill-will or mala fide,

the facts of the case proves to show that the 1st

Respondent activated the process

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of the law against himself by the conduct earlier mentioned

and the Appellants was left with little or no choice but to

report to the police, no matter the nomenclature, the

Appellants had reasonable cause to report to the police.

Issue Two (2) is hereby resolved in favour of the Appellants

and against the 1st Respondent.

ISSUE 3

Whether or not from the facts contained in the

processes filed by the Applicant/1st Respondent, he

made out against the 1st and 2nd Appellants, a case

of violation of his fundamental human rights, as to

entitle him to an order enforcing his rights in that

regard.

The learned counsel for the Appellants submitted that the

1st Respondent supporting Affidavit did not prove sufficient

evidence to enforce his Fundamental Rights claims against

the 2nd - 4th Respondent on the ground of obtaining money

through false pretence and on the issuance of dud cheque.

It was the learned counsel submission that the 1st

Respondent failed woefully to establish how his

Fundamental Rights were violated by his two days

detention based on the complaint that none made mala

fide. Rather, the learned counsel submitted that the 1st

Respondent was

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not in any way dragged on the ground nor violated in any

way because he confirmed that he issued a dud cheque for

the sum of N167,500.00 (one hundred and sixty-seven

thousand, five hundred Naira) and that these facts were

deposed to in the 3rd and 4th Respondents' Counter

Affidavit on page 87 of Record of Appeal and page 41 of the

Record of Appeal Paragraphs 26, 27, 28, 29, 30, 31, 32, 33

and 34.

Counsel further contended that from the deposition in the

Counter Affidavit of the 2nd, 3rd and 4th Respondents, it

showed clearly that the 1st Respondent had failed to

establish that his rights had been infringed upon apart from

his ipse dixit in spite of the burden of proof the law placed

on him to prove indeed, that he was tortured; and his rights

violated by the formal complaint made by the Appellants to

the police inviting them to investigate and arrest the 1st

Respondent on the allegation of obtaining through false

pretence and the issuance of dud cheque, all this in line

with the Section 214 (1) (b) of the Police Act thus:

'There shall be police force to which shall be known

as the Nigerian Police Force and subject to the

provision of this section no

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other police shall be established for the federation or

any part thereof."

Also learned counsel argued that Section 4 of the Police Act

provides thus:

'The police shall be employed for the prevention and

detention of crime, the apprehension of offenders, the

preservation of law and order; the protection of life

and property and due enforcement of all laws and

regulations with which they are directly charged and

shall perform such military duties within and without

Nigeria as may require by them or under the

authority of this or any other Act."

The learned counsel for the Appellants argued that from

the above provision, the Appellants having realized that the

1st Respondent had relocated the collateral (vehicle)

outside the agreed jurisdiction to Akure without informing

the Appellants after the issuance of dud cheques on three

consecutive occasion and sequel to all this was his failure

to service his monthly loan payment to the Appellants.

Moreso, the counsel for the Appellants contended that in

the face of these above stated, and the subsequent

reporting of same to the police, the 1st Respondent in

apprehension of being prosecuted for the

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alleged offence hastily filed an application for the

enforcement of his fundamental rights to deprive the 2nd -

4th Respondent from carrying out their constitutional duty

and evade justice. Moreso, the counsel submitted that it

was the delay of producing a credible surety after grant of

bail that saw his detention for two days. The counsel

therefore urged this Court to set aside the judgment of the

trial Court.

In response, the learned counsel for the 1st Respondent

submitted that the learned trial Judge was perfectly in

order in giving judgment in the favour of the 1st

Respondent. Learned counsel for the 1st Respondent stated

that the evidence adduced i.e. the Appellants' Counter-

Affidavit, further Affidavit, Respondent Counter-Affidavit

supported by a number of exhibits most especially the

exhibit on approval for restructuring of the loan residual all

established that there existed a banker/customer

relationship between the Appellants and 1st Respondent.

The 1st Respondent's counsel submitted that the reason for

the arrest and detention of the 1st Respondent which are

obtaining money under a false pretence and using the

police to retrieve a

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collateral were not part of the terms and condition for

receiving an unpaid loan. Counsel submitted that by virtue

of Section 35 (6) of the Constitution of Nigeria 1999, where

a citizen's right is violated, he is entitled to compensation

and public apology.

It was submitted by the learned counsel that according to

the principle of law in the case of U.B.A. Plc. Vs.

Ogundokun (2009) 6 NWLR (pt. 1 138) page 450 @

489 paras B-E, damages are said to be pecuniary

compensation or award given by process of law to a person

who suffered loss or injury whether to his person or

property through the unlawful act or omission of another.

The rationale for awarding damages is to compensate the

aggrieved party for the loss or to place him in a position in

which he would have been if he had not suffered damage or

injury for which he is claiming compensation. The 1st

Respondent thereby urged this Court to affirm the decision

of the trial Court.

RESOLUTION OF ISSUE 3

It is often stated that one who comes into equity must come

with clean hands (or alternatively, equity will not permit a

party to profit by his own wrong). In other words, if you ask

for help

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about the actions of someone else but have acted wrongly,

then you do not have clean hands and you may not receive

the help you seek.

I am not saying that a "bad person" cannot obtain the aid of

equity, no, equity does not demand that its suitors shall

have led blameless lives. All I am saying is that if there is a

nexus between the applicant's wrongful act and the rights

he wishes to enforce, then the defence of unclean hands

may apply.

The Applicant/1st Respondent according to Affidavit in

Support of his application had applied and gotten approval

for loan about six times which was granted to him (see

Exhibit A, B, C, D, E, F). The last loan for N800,000.00

(Eight Hundred Thousand Naira) was approved on 4th

August, 2011, for a tenor of six months and had a monthly

repayment of principal and interest, in addition, it had a

Honda Accord car with Reg. No. FM66LND and 3 First

Bank Cheques and 1 Zenith Bank cheques as collateral

security for the loan.

At the expiration of the loan facility on 3rd February 2012,

the 1st Respondent had defaulted in re-payment of the said

loan and this prompted the 1st Respondent's application for

rescheduling of the

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outstanding sum to be restructured over a period of six

months, please note that Exhibit G, though titled as Exhibit

H (the letter of Rescheduling) was dated 12/04/2012 had a

six months tenor which was to expire on 11th October,

2012. Despite this gratuitous gesture by the Appellants, the

1st Respondent still defaulted in his monthly installments

repayment, in fact, not a single kobo was paid. The excuses

by the 1st Respondent that he did not meet up his

obligations of monthly repayment as a result of alleged

inaccuracies or inflated figures in his statement of account

in my estimation is not tenable, I say so because the

rescheduling of the outstanding was approved on

12/04/2012 i.e. two (2) months he failed to defray the

earlier loan which had expired unpaid on 3rd February

2012 and the complaint to the police was made almost 6

months (26th September, 2012) after the approval was

made. Is the 1st Respondent really honest in his averments

by giving the excuse that he was in the process of paying a

six months rescheduled outstanding which would expire in

two weeks but for the delay or slow process in correcting

the inaccuracies in his Statement of Account!

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This is an implausible claim, which the acts of the 1st

Respondent seem not to support.

Moreso, the Appellants being a Bank is a profit-making

organization and I doubt if on their part they would

willingly clog their own wheel for the repayment of their

money for that long a time. Anyway, going further, as

observed by the lower Court Judge on page 125 of the

Record of Civil Appeal, the said Exhibit G contains the

condition which are binding between the Applicant and the

1st Respondent on this restructured debt, some of the

relevant terms/condition for the justice of this appeal, as

stipulated in Exhibit G are as follows:

(i) If on due date, instalment due is not paid, such unpaid

instalment will attract a penalty of between 59% per

month.

(ii) lf facility remains unpaid after expiry date. It will

continue to attract interest and penalty charges on monthly

basis until liquidated or collateral realized.

(vii) All charges and collateral pledges created in favour of

the Bank are enforceable and the customer shall not in any

way and in any form whatsoever restrain, restruct, obstruct

or delay Seed Vest Microfinance Bank Limited in taking

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any steps to realize the security.

(viii) A non repayment of any due instalment amount to

default on the entire facility agreement and such default

entitles the Bank to call in the facility and or take steps to

realize the collaterals, call in the guarantees, repossess

assets purchased/leased with the funds and takes such

further steps as it may deem fit to recover its funds.

(ix) Any case of a dud or returned repayment instrument or

cheque shall be reported and taken up with the authorities

who shall not be limited to the EFCC.

(x) The Bank shall be at liberty to review the rates

applicable to this facility in line with the prevailing money

market condition from time to time and such review shall

be deemed acceptable to the borrower where the facility is

not fully repaid immediately.

(xiii) The Bank reserves the right to alter, amend and vary

the terms on which this offer is made without recourse to

you.

In the case of Insheno vs. Julius Berger (Nig.) Plc

(2008) NWLR (pt. 1084) 582, it was held thus:

"It is settled law that parties to an agreement or

contract are bound by the terms and conditions of the

contract they

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signed.”

Also in the Supreme Court case of Best (Nigeria) Ltd. Vs.

Blackwood Hodge (Nigeria) Ltd. (2011) 5 NWLR 95,

the Court held thus:

“It is basic that to constitute a binding contract,

there must be an agreement in which the parties are

ad idem on essentials terms and conditions thereof.

The promise of each party must be supported by

consideration.”

Based on the above, it is glaring that the 1st Respondent

breached the terms and condition in their mutually

executed agreement between the 1st Respondent and

Appellant and the Appellant in bid to salvage the security

for the loan (Honda Accord vehicle) and to bring him to

justice trailed the 1st Respondent to the city of Akure, this

was in line with paragraph VIII of the terms and conditions

earlier reproduced to the effect that if the 1st Respondent

defaulted in repayment it entitles the Appellant to ".....take

steps to realize the collateral."

Realistically speaking, it seems to me that the Appellants

whom is in the business of profit making had reached been

frustrated by the seemingly fraudulent and criminally

tainted actions of the 1st Respondent and decided to be

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pro-active to recover the security for the loan, a vehicle, a

movable object, a perishable object and given the complaint

made to the police establishes their intent, that they were

not interested in denying the 1st Respondent his freedom

or anything untoward as that would not translate into the

recovery of the money sought but can the same altruistic

intention be read on the part of the 1st Respondent through

all the currency of all that transpired between the parties.

It therefore follows that I am not inclined to agree with the

learned trial Judge, whom as evidenced on page 132

paragraph 2 granted the relief of the 1st Respondent

"subject to the fact that if there is a criminal offence,

arising from the transaction between the Applicant and the

1st Respondent, and in particular as regards the issuance

of dud cheques by the Applicant, which has not yet been

reported to the police, nothing stops the 1st Respondent

from lodging such a complaint and nothing precludes the

police from investigating the allegation once it is

reported."

In my honest estimation, I do not think it would be fair, just

and of good conscience to the learned trial

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Judge to grant the request of the 1st Respondent solely on

the seemingly inadvertent omission of the complaint to the

police even in the face of overwhelming evidence that the

1st Respondent acts were tainted with criminality. In

Paragraph 18 of the Appellants', 1st and 2nd Respondents'

Counter Affidavit, it stated thus:

'That the 1st Respondent at the due date presented

the three bank cheques issued by the Applicant for

payment but all the cheques were returned unpaid

and the Applicant was notified accordingly.'

The above was evidenced by Exhibit E (a copy of the

Applicant's Statement of Account showing details of

dishonoured cheques issued by the Applicant. Also see

page 28 of Record of Civil Appeal.

It is noteworthy that the 1st Respondent's response to this

criminal allegation as encapsulated in the further Affidavit

was that the Appellant had inserted date on the cheque and

presented it for payment before the agreed date. How

plausible is this? Are cheques issued in perpetuity and why

would the Appellants go on a wild goose chase on its own

frolic? The reasonable explanation I can proffer is simply

that the 1st Respondent must

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have made him believe the cheque could be cashed!

Remember this was at three different times!

And as mentioned earlier, this was an offence under

Section 1 of the Dishonoured Cheques (Offences) Act Cap

D11 Laws of the Federation of Nigeria 2004 and for which

the Appellant were entitled to make a report to the police.

See: Chief (Dr.) Fajemirokun vs. Commercial Bank

Nigeria Ltd. & Anor (2009) 2 - 3 (pt. 1 135) 58.

Furthermore, on page 1'27 paragraph 2 of the Record of

Appeal, the lower Court had reason to call the integrity of

the 1st Respondent to question when it stated thus:

'The story of the Applicant on how he came about the

rescheduling of his debt with the 1st Respondent does

not accord with normal banking practice and worse

still, it conflicts with common sense. A debtor would

not ordinary be granted any further favour by a bank

unless he applies for such and shows reason. The

position as painted by the Applicant is therefore not

believable as it is obvious that one thing must have

led to the other before 1st Respondent would have

conceded to allow him, a debtor to reschedule his

debt. Exhibit H attached to the

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Affidavit in support by the Applicant is an attempt by

the Applicant to tailor his case along his own line of

reasoning which is warped.”

If, as observed by the lower trial Judge, the 1st Respondent

can attempt a volte-face even in the face of evidence

against him by denying a simple agreement entered into

willfully; is such a person to be believed, when he comes up

with allegations of torture, harassment etc? Even if we

agree that he was detained more than 24 hours, has his

position changed? What exactly is the award of 2.5 million

for? The judgment read that it is for the pain and

psychological trauma suffered! I ask what about the

corporate entity (Appellants) whose life could be snuffed

out by the non-payment of its money, or does it not also

have a right of existence whose survival is basically on

profitability? Remember in the first place that it was the 1st

Respondent that approached the Appellants for assistance

in the first place, which it graciously granted severally,

would it then be fair to heap on its head, a judgment debt

of the sum of N2.5 million while it was trying to recover a

mere debt of a fraction of that amount

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especially when the judgment creditors' hands are

unclean!

There is a wise saying that in order to know where you are

going, you need to know where you are coming from.

In the face of all that I have reasoned, I dare say that from

the facts contained in the processes filed by the

Applicant/1st Respondent, a case of violation of his

Fundamental Human Rights has not been made out by him

to entitle him to the orders made, there exist a nexus

between the 1st Respondent's wrongful act and the rights

he wishes to enforce, I therefore resolve this issue in favour

of the Appellants and against the 1st Respondent.

The totality of all that is being said here is that the

relationship between the parties was made degenerative by

the 1st Respondent antics and therefore the Court should

be wary in inadvertently placing a seal of approval on the

antics of the 1st Respondent on a tales of violation of his

Fundamental Human Rights, especially when his hands are

tainted.

Therefore, the order I am making is one setting aside the

judgment of the lower Court delivered on the 14th day of

March 2013. I make no order as to cost.

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346(

CA)

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree that

the appeal should succeed. I abide by the order setting

aside the trial decision as the 1st plaintiffs/respondent's

fundamental right had not been breached in the

circumstances of the evidence led.

JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege of

reading in advance in draft the judgment just delivered by

my learned brother Sotonye Denton-West, JCA. I am in

agreement with the reasoning and conclusions reached.

It is common ground between the Appellants and the 1st

Respondent that the 1st Respondent issued three dud

cheques to the Appellants, Paragraph ix of Exhibit 6 the

terms of the facility provides thus:

"(ix) Any case of a dud or returned repaymentinstrument or cheque shall be reported and taken upwith the authorities who shall not be limited to theEFCC"

From the above provision of Exhibit G, the lower Courtought to have refrained from finding that the fundamentalrights of the 1st Respondent had been breached when thematter was referred to the police by the Appellants.I too resolve issue 3 in favour of the

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346(

CA)

Appellants and against the 1st Respondent.

The judgment of the lower Court is also set aside by me.

I abide by the order as to costs.

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6) LP

ELR-41

346(

CA)