1 IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY, ABUJA HOLDEN AT ABUJA ON THURSDAY, 14 TH DAY OF JUNE, 2012 BEFORE HON. JUSTICE SYLVANUS C. ORIJI SUIT NO. FCT/HC/CV/28/2006 BETWEEN MALLAM YAKUBU M. J. --- PLAINTIFF AND OLADELE OGBONI --- DEFENDANT JUDGMENT The plaintiff, a legal practitioner, commenced this suit by writ of summons filed on 4/12/2006. In paragraph 44 of his amended statement of claim filed on 4/5/2009, the plaintiff claims these reliefs against the defendant: 1. A declaration that the defendant assaulted and or coursed (sic: caused) the plaintiff to be assaulted; beat up and or coursed (sic: caused) the plaintiff to be beaten up. 2. A declaration that the assault and (sic: by the) defendant is in utter disregard for the respect and dignity of the person of the plaintiff. 3. A declaration that the defendant subjected the plaintiff to inhuman torture and degrading treatment and servitude.
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IN THE HIGH COURT OF THE FEDERAL
CAPITAL TERRITORY, ABUJA
HOLDEN AT ABUJA
ON THURSDAY, 14TH DAY OF JUNE, 2012
BEFORE HON. JUSTICE SYLVANUS C. ORIJI
SUIT NO. FCT/HC/CV/28/2006
BETWEEN
MALLAM YAKUBU M. J. --- PLAINTIFF
AND
OLADELE OGBONI --- DEFENDANT
JUDGMENT
The plaintiff, a legal practitioner, commenced this suit by writ of summons
filed on 4/12/2006. In paragraph 44 of his amended statement of claim filed
on 4/5/2009, the plaintiff claims these reliefs against the defendant:
1. A declaration that the defendant assaulted and or coursed (sic:
caused) the plaintiff to be assaulted; beat up and or coursed (sic:
caused) the plaintiff to be beaten up.
2. A declaration that the assault and (sic: by the) defendant is in utter
disregard for the respect and dignity of the person of the plaintiff.
3. A declaration that the defendant subjected the plaintiff to inhuman
torture and degrading treatment and servitude.
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4. A declaration that the defendant unlawfully restrained the plaintiff
and impugned on his right to move freely.
5. A declaration that the alterations (sic: utterances) and statement of the
defendant at the scene of the incident are defamatory of the character
and reputation of the plaintiff.
6. An order of this Court compelling the defendant to pay
N5,000,000.00 to the plaintiff being damages for malicious and
unlawful prosecution of the plaintiff without just cause.
7. The sum of N5,000,000.00 being damages for unlawful restraint,
criminal trespass, criminal assault, unlawful detention of plaintiff’s
car, unlawful arrest and detention of the plaintiff.
8. N500,000.00 being special and general damages.
The defendant filed an amended statement of defence and counter claim
on 18/5/2009. In his counter claim, the defendant seeks the following reliefs
against the plaintiff:
1. The sum of N450,000.00 being the price of the damage(d) Nissan car
No. CB 34 ABC.
2. The sum of N720,000.00 being the cost of hiring taxi car between Dec.
2005 and Dec. 2006 at N60,000.00 monthly.
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3. The sum of N10,000,000.00 as general damages.
4. The sum of N12,500.00 being balance on the concrete rings.
On 20/3/2007, the plaintiff filed a reply to the statement of defence and
defence to the counter claim. Trial commenced on 28/7/2008. The plaintiff
adopted his 22-paragraph statement on oath filed on 20/3/2007; his
amended statement on oath of 36 paragraphs filed on 30/10/2007; and his
amended statement on oath of 48 paragraphs filed on 4/5/2009. He
tendered the certified true copy of judgment in Appeal No. CRA/34/2006 as
Exhibit A; and the certified true copy of the record of proceedings in Charge
No. CV/106/2005 as Exhibit B. The plaintiff was cross examined. For his
part, the defendant adopted his statement on oath filed on 18/5/2009 and
tendered 12 receipts as Exhibits C & D1-D11. After the evidence-in-chief of
the defendant, the case was adjourned several times for the plaintiff to
cross examine him. The plaintiff did not attend Court to cross examine the
defendant in spite of the hearing notices served on him as shown by the
records in the case file. On the application of the defence counsel on
25/5/2011, I foreclosed the right of the plaintiff to cross examine the
defendant.
At the conclusion of trial, the parties filed and adopted their respective
final addresses. The defendant’s final address was filed by C. C. Nnamani
Esq. (of blessed memory) on 12/8/2011. The plaintiff filed his final address
on 15/2/2012. D. A. Sulayman Esq. filed the defendant’s reply on points of
law on 24/4/2012.
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The defence counsel did not formulate any issue for determination. For his
part, the plaintiff posed three issues for the Court’s determination, namely:
1. Whether on the preponderance of evidence the plaintiff is not
entitled to judgment on all his claims.
2. Whether the discharge and acquittal of the plaintiff in the appellate
court does not grand (ground) damages claimed by the plaintiff.
3. Whether the counter claim of the defendant is not superfluous and
overreaching in the light of the acquittal and discharge of the
plaintiff by the FCT High Court sitting in its appellate jurisdiction.
However, in my opinion, there are two main issues for determination. The
first is whether the plaintiff is entitled to his claims while the second is
whether the defendant is entitled to his counter claims.
ISSUE 1
Whether the plaintiff is entitled to his claims.
The 1st, 2nd, 3rd & 4th reliefs of the plaintiff are based on the allegation that
the defendant assaulted and beat him and/or caused him to be assaulted or
beaten up in utter disregard for the respect and dignity of his person; that
the defendant subjected him to inhuman torture, degrading treatment and
servitude; and that the defendant unlawfully restrained him and
impugned on his right to move freely. In the 7th relief, the plaintiff claims
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N5,000,000.00 damages for unlawful restraint; criminal trespass; criminal
assault; unlawful detention of his car; and his unlawful arrest and
detention.
The case of the plaintiff is that on 9/12/2005, he went to collect money from
his friend’s boy in Urban Mass park, Gwagwalada, Abuja. He sat outside
the shop where the boy was barbing. The defendant met him and shouted
that he (plaintiff) should pay him (defendant) his money. He replied that
he was not indebted to him. The defendant got enraged, held his shirt and
cut one of the buttons. While holding his shirt, the defendant shouted
saying: ‘you are a debtor, you thief, you must pay me my debt or else I will kill
you today’; and ‘you think I am Agwuma and Area Commander that you are
dealing with, today I will show you who I am.’ Due to the action of the
defendant, a great crowd gathered. The on-lookers managed to disengage
the defendant’s hand from his shirt. After about 30 minutes, he went back
to the said shop and parked his car facing the shop; the distance between
his car and the shop was about 2 inches. The defendant returned there in
the company of 3 hefty men and parked his white car behind his (plaintiff)
car leaving a distance of about 3 inches.
While with the 3 men, the defendant shouted: ‘Talk again thief, say you will
not pay me my money and I will kill you and nothing will happen’; ‘You think you
can run to police station I have block your car, where are you going to go now’;
and ‘I will deal with you if you don’t pay my money.’ Passers-by were
attracted, and they joined his (plaintiff) friend to hold the defendant and
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his thugs, while he hurried into his car with great fear. The defendant and
his thugs escaped from the passers-by. The defendant held his neck while
he was inside the car and said ‘Where do you think you are going, you think
you can go when I have blocked your car, you can’t run away, come out and fight.’
He was afraid; he wound up his car doors and locked himself in. The
defendant and his thugs hit the door glass of his car several times with
intent to break in but he managed to drive out his car to Gwagwalada
Police station.
On the other hand, the case of the defendant is that when he saw the
plaintiff on 9/12/2005, he approached him friendly to pay his debt, which
he had evaded to pay. The plaintiff flared up, beat his chest, began to curse
and abuse him, and advanced to rough-handle him. There was no time he
touched the plaintiff. People gathered as a result of the plaintiff’s ranting;
he shouted ‘you dare to challenge me? Don’t you know that I am a lawyer? I can
kill you here and nothing will happen.’ The people who gathered tried to
control the plaintiff, but he removed their hands, rushed into his car
parked in front of his, put it in reverse gear and hit his (defendant) car 5
times. Consequently, his car was damaged by the plaintiff. He left his car at
the scene and ran for his life. He explained that his car was parked far
away from the plaintiff’s car. The plaintiff’s car had enough space all
around it; it was through the front space that the plaintiff drove off after
hitting his car. He denied that he went to the scene with 3 hefty men.
The defence counsel pointed out that apart from the evidence of the
plaintiff, no other witness was called to corroborate his story. He argued
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that though a case cannot be proved by merely calling many witnesses, the
evidence of one witness lacking in credibility and probative value must be
disregarded. He submitted that looking at the totality of the plaintiff’s
evidence, no case of assault, inhuman treatment or restraint was
established against the defendant. He concluded that the plaintiff is not
entitled to his claims. On the other hand, the plaintiff did not canvass any
argument on his 1st, 2nd, 3rd, 4th & 7th reliefs apart from his remark that ‘the
defendant was in clear breach of the fundamental right of the plaintiff culminating
in the discharge and acquittal of the plaintiff by the FCT High Court sitting in its
appellate jurisdiction.’ However, in his conclusion, he urged the Court to
grant his claims with substantial cost.
Now, from the pleadings and evidence of the parties, the defendant joined
issues on the facts alleged by the plaintiff in support of the claims under
focus. The defendant averred that the plaintiff was the one that cursed,
abused, and advanced to rough-handle him on the day in question and
damaged his car. It is trite that civil cases are decided on preponderance of
evidence or balance of probabilities. See the case of Alhaji Uba Usman v.
Salisu Abubakar (2001) 12 NWLR (pt. 728) 685. By section 131(1) of the
Evidence Act, 2011, whoever desires any court to give judgment as to any
legal right or liability dependent on the existence of facts which he asserts
must prove that those facts exist. I need to also refer to section 135(1)
thereof which provides that if the commission of a crime by a party to any
proceeding is directly in issue in any proceeding civil or criminal, it must
be proved beyond reasonable doubt. See Michael Arowolo v. Chief Titus
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Ifabiyi (2002) 4 NWLR (pt. 757) 356. In the instant case, there can be no
doubt that the plaintiff has the burden to prove the allegations upon which
his claims are predicated.
What has emerged from the evidence of the parties is that there was a
quarrel between the plaintiff and the defendant on 9/12/2005. What is not
certain is who the aggressor was. Perhaps the evidence of other witnesses
would have been helpful to the Court to reach a finding on who the
aggressor was. Apart from the several people or passers-by who witnessed
the event, the plaintiff stated during cross examination that Mohammed
and Joe were among the people that were at the scene. From the record of
proceedings, Exhibit B, Mohammed Salami and Emeka Joekan testified as
witnesses for the plaintiff (as accused person in the criminal trial in the
magistrate court). The plaintiff did not call any of these persons to testify.
Has the plaintiff proved the allegation of servitude, torture and restraint?
Servitude is the state of being a slave; or subjection to irksome or taxing
conditions, while torture is the infliction of severe pain or mental suffering.
See pages 1282 & 1484 of the Chambers 21st Century Dictionary respectively.
The plaintiff alleged that the ‘thugs’ that accompanied the defendant to the
scene were Ishola, the defendant’s son and two others. The plaintiff did not
allege that the defendant or the ‘thugs’ beat or tortured him or subjected
him to irksome or taxing conditions. The point must be made that the
allegations of torture and assault are allegations of crime, which, as I said
earlier, require proof beyond reasonable doubt.
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Let me also comment on the plaintiff’s evidence that the distance between
his car and the shop where he parked it was about 2 inches; and that the
defendant parked his car behind his (plaintiff) car leaving a distance of
about 3 inches. This evidence is in support of his claim that the defendant
unlawfully restrained him and violated his right to move freely. If my
understanding of an inch as one-twelfth of a foot is correct, and I think it is,
it is not probable or likely that the plaintiff drove out his car from the scene
in a space of five (5) inches.
I am mindful of the judgment of my noble lords, T. N. Orji-Abadua, J. (now
Justice of the Court of Appeal) and M. E. Anenih, J. delivered on 20/10/2006,
Exhibit A. In that judgment, the conviction and sentence of the plaintiff (as
accused person in the magistrate court) for the offence of mischief was set
aside. Their lordships held, inter alia:
“We believe that if the circumstances of the case were properly
evaluated by the trial court, it would have found out that the defence
of self defence would have availed the Appellant who felt he was
being attacked by the complainant and his men.”
In my respectful view, the said judgment did not relieve the plaintiff of the
evidential burden to prove his claims in this proceeding. It is pertinent to
note that their lordships did not find that the plaintiff was attacked by the
complainant and his men. For the avoidance of doubt, I need to remark
that the complainant in that case is the defendant in the present proceeding
while the appellant is the plaintiff. Their lordships found that the plaintiff
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‘felt he was being attacked by the complainant and his men.’ In the absence of
any credible evidence to support the ipse dixit of the plaintiff, my decision
is that he has not discharged the evidential burden to prove these claims.
Therefore, the 1st, 2nd, 3rd, 4th & 7th reliefs of the plaintiff are dismissed.
In the 5th relief, the plaintiff seeks a declaration that the utterances and
statements made by the defendant at the scene of the incident are
defamatory of his character and reputation. In relief 8, he claims the sum of
N500,000,00 as special and general damages. Perhaps, this sum represents
damages for the alleged defamation. I had earlier set out the statements
allegedly made by the defendant on 9/12/2005 concerning the person of the
plaintiff including that he is a thief and debtor. The defendant denied
making these statements. The learned defence counsel submitted that from
the totality of the plaintiff’s evidence, no case of defamation was
established against the defendant. On the other hand, the plaintiff did not
canvass any argument on the tort of defamation and why this claim should
succeed apart from his remark that he had not been convicted of theft or
adjudged a debtor to justify the publication by the defendant.
A defamatory statement is one which has the tendency to injure the
reputation of the person to whom it refers, and tends to lower him in the
estimation of right thinking members of the society. See National Electric
Power Authority v. Chief Etim Inameti (2002) 11 NWLR (pt. 778) 397 and
Alawiye v. Ogunsanya (2004) 4 NWLR (pt. 864) 486. A defamatory
statement may be in writing or by spoken words. The former is libel while
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the latter is slander. To succeed in an action for defamation, there must be
evidence that the words complained of convey a defamatory meaning; and
that the words were defamatory of the plaintiff in that they lowered him in
the estimation of right thinking members of the society, or exposed him to
hatred, ridicule or contempt, or injured his reputation or financial credit.
Therefore, it is the effect the words have on persons to whom the
statements or words were published (i.e. those who heard or read them)
that constitutes defamation. There must be evidence of a third party to
prove the effect of the publication of the alleged defamatory statement on
him i.e. the reaction of a third party to the defamatory statement
complained of. This is because a person’s reputation is not based on the
good opinion he has of himself, but the estimation in which others hold
him. In Bank of the North Ltd. v. Alhaji A. A. Adehi (2003) FWLR (pt.
137) 1135, it was held that in a case of defamation of character, the plaintiff
must call witnesses to testify as to what they think and feel about him since
the publication of the alleged defamatory matter. See also Lambert Sunday