Whether Exemplary Damages Must Be Pleaded and Proved by an Applicant in a Fundamental Rights Enforcement Suit?

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It has been a difficult thing to believe that some of our courts require an applicant in a fundamental rights enforcement suit to always prove damages including exemplary, aggravated etc., as reliefs before being entitled to the same. The Court of Appeal of Nigeria has however recently held the contrary to the effect that in an enforcement of fundamental rights suit, an applicant only has to prove that his fundamental right has been or is being or likely to be violated and that the trial court has the discretion to award any damages found necessary in the circumstance(s) of the Applicant’s facts deposed in his affidavit in support of his application (therefore, an applicant is not under any duty to prove any of such damages before being entitled automatically to same). The Court of Appeal relied on the Supreme Court’s case of JIM-JAJA V C.O.P RIVERS STATE & ORS (2013) 6 NWLR (PT 1350) 225, in holding its decision. This article is to articulate this decision of the appellate Court, hence, this topic.

The Court of Appeal of Nigeria held in the case of OKIBE v. NDLEA (2022) LPELR-56995(CA), on pages: 18 to 22 thus

a person who is arrested or detained beyond the time or limit provided in the provisions of the aforesaid Constitution is able to discharge the onus of proof cast upon him he is automatically entitled to compensation as provided for under the Constitution.

See JIM-JAJA V C.O.P RIVERS STATE & ORS (2013) 6 NWLR (PT 1350) 225 AT 244 F-H TO 245 A per NGWUTA, JSC (of blessed memory) who said:-

“The chapter referred to in the provision reproduced above is Chapter IV dealing with Fundamental Rights. Section 35 (1) guarantees to every person his/her personal liberty. The appellant’s case does not fall within the exceptions numbered (a)-(f) in Section 46 (2) of the Constitution. The respondents did not attempt to bring their case within any of the exceptions. Section 35 (6) provides. “S.35(6): Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person…”

A community reading of Section 35 (6) and 46 (2) of the Constitution (supra) will give effect to the principle of ubi jus ibi remedium. By Section 35 and 46 of the Constitution, fundamental right matters are placed on a higher pedestal than ordinary civil matters in which a claim for damages resulting from a proven injury has to be made specifically and proved.

Once the appellant proved the violation of his fundamental right by the respondents, damages in form of compensation and even apology should have followed.” On pages 255H to 256 A-D, M. D. MOHAMMED, JSC also said:- “The Court below has found at pages 19-20 of the record that appellant had been unlawfully arrested and detained. The Appellant’s statement of facts in support of the application for the enforcement of his fundamental right evidently seeks the trial Court’s order for Two Million Naira damages against the respondents for his unlawful and illegal detention.

The provision of Section 35 of the 1999 Constitution equally speaks for itself. Yet the Court below insists that the appellant is not entitled to that relief has not asked for the same. The Court is manifestly wrong! The Appellant’s unlawful detention by the respondents constitutes a breach of his right to personal liberty as guaranteed under Section 35(1) of the Constitution. The same Constitution has provided under Section 35(6) thus:-


“35(6): Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person.”(Italics supplied for emphasis). From the foregoing, the appellant does not have to ask for compensation once he has established the fact of his being unlawfully detained, a fact which the Court below itself held he has. The compensation is automatic by the operation of the law.


In any event, the record of appeal has clearly shown that the appellant has specifically asked for a N2 million Naira damages. The lower Court’s decision that discountenanced the content of Section 35(6) of the Constitution as well as the appellant’s specific claim for the award of Two Million Naira damages arising from the breach of his constitutionally guaranteed right to liberty is manifestly perverse.” 

A victim of violation or infringements of Fundamental Rights by any authority or person does not need to plead or claim specifically an amount in general damages or exemplary damages or punitive damages before he could be given or awarded in his favour against the person or authority that is adjudged guilty of violating a person’s fundamental rights. It is at the discretion of the trial Judge exercising his discretion judicially and judiciously to award to the victim of a violation of human rights a number of damages as compensation to assuage the damages suffered by the victim for the entire duration of time such a victim is detained or arrested by any authority or person.

The compensation in terms of damages must be commensurate to the deprivation of personal liberty suffered which is contrary to the Constitution and not permitted by law. The same is true where the provisions of Section 36(1) and (5) of the Constitution of the Federal Republic of Nigeria 1999, as amended are violated. The victim is entitled to compensation in form of damages that will serve a deterrent. It does not lie in the mouth of the learned Counsel to the Respondent to contend howbeit wrongly that such damages, by whatever name called must be pleaded and proved.

What is required of the victim is to prove and establish that his rights were violated or infringed upon by the person or authority sued. See; JIM-JAJA PAGES 243 E -244 A-E per NGWUTA, JSC who said:
“This claim by the 3rd respondent is in conflict with the fact as stated in the 3rd respondent’s brief. The criminal allegation of forgery was a ploy by the respondents to settle a purely civil matter – the recovery of the loan obtained from the 3rd respondent by the appellant.

It is unfortunate that the 1st and 2nd respondents at the instance of the 3rd respondent, on the pretext of investigating a case of forgery, converted their office into a debt recovery outfit. Where there is no appeal against the finding of the lower Court that the appellant’s right was violated by the respondents thereby setting aside the contrary decision of the trial Court. In any case, the 3rd respondent who did not cross-appeal nor did he file a respondent’s notice cannot raise the issue of fraud which did not arise from the ground of appeal. However, the Court below erred when it refused to award damages on the ground that the appellant did not claim damages for two reasons:


(1) Appellant claimed the sum of N2 million as damages against the respondents for unlawful arrest and detention. That claim, verified on affidavit evidence was not really contested. It is the law that evidence that is relevant to the issue in controversy and is admissible, admitted and not successfully challenged, contradicted or discredited is good and reliable evidence to which probative value ought to be ascribed and which ought to influence the Court in the determination of the dispute before it. See Chabasaya v. Anwasi (2010) 3-5 SC 208, (2010) 10 NWLR (Pt. 1201) 163. Though the appellant did not specifically ask for exemplary damages for the violation of his right by the respondent, the Court below ought to have awarded him the damages he claimed and proved.
(2) Section 46 of the Constitution of the Federal Republic of Nigeria confers on a High Court special jurisdiction to deal with cases of violation of the fundamental right of any person within the borders of this country. Section 46 (2) provides:


“S.46(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 order, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter. “’


Finally, therefore, it is my humble submission that this case ought to be celebrated as it has laid emphasis on the duty of an applicant in a fundamental rights enforcement suit which does not lay any burden of proving exemplary and or aggravated damages or any damages whatsoever on the applicant who is a victim of a violation of his fundamental right and that the award of damages is a discretion of the trial court to award as may be appropriate and in whatever damages the trial court deems fit.

Email: hameed_ajibola@yahoo.com

lawpavilion • June 27, 2022


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