Daniel Okonkwo Vs Fred Ogbogu & Anor (1996)

LAWGLOBAL HUB Lead Judgment Report

OGWUEGBU, J.S.C.

This is an appeal by the 1st defendant in the trial court against the judgment of the Court of Appeal, Benin Division dismissing his appeal to that court.

The 1st respondent as plaintiff instituted an action in the Asaba Judicial Division of the High Court of the former Bendel State against the appellant as the 1st respondent and the 2nd respondent as the 2nd defendant claiming the sum of N20,000.00 jointly and severally for the tort of false imprisonment.

The 1st respondent in paragraph 22 of his statement of claim averred as follows:-

“WHEREFORE the plaintiff brings and claims from the defendants , jointly and severally the sum of N20,000.00 being general damages for false imprisonment in that on or about the 2nd day of May, 1982 at Asaba in the Asaba Judicial Division the 1st defendant falsely and maliciously preferred before the Nigeria Police Asaba a charge of wilful and unlawful damage to his (1st defendant’s) property at Asaba and falsely procured the arrest of the plaintiff by the 2nd defendant on or about the 4th day of May, 1982 on the said charge at about 11.30 a.m. and was detained in police custody until about 6 p.m. when he was released on bail.”

The learned trial Judge found the 1st defendant liable for false imprisonment and awarded N3,000.00 damages against him. The 2nd defendant was found not liable. The 1st defendant who is the appellant herein unsuccessfully appealed to the Court of Appeal and has further appealed to this court.

The following issues for determination are identified in paragraph 3 of the appellant’s brief of argument:-

“1. Whether a case of false imprisonment was at all made out against the appellant at the trial by the 1st respondent in view of S. 17 of the Criminal Procedure Law Cap. 49, Laws of Bendel State of Nigeria, 1976, applicable to Delta State governing release on bail of a person arrested without warrant, and which point of law was not argued at the court below.

2. Whether the failure of the learned Justices of the Court of Appeal to consider ground 2 of the appellant’s ground of appeal occasioned a miscarriage of justice against the appellant.
3. Whether the onus of proof as regards the statement of the appellant to the Police was discharged by the respondent when the statement was not produced as the Primary Evidence of its content and when non-production was never explained out by the respondents. And accordingly whether section 148(d) of the Evidence Act enures in favour of the appellant against the respondent in the circumstance.
4. Whether the disclosure by Corporal Akinbowa, a serving police officer of what transpired between him and the complainant (appellant) in this case amounted to a violent violation of the Official Secrets Laws of Nigeria, and whether such evidence purporting to show what transpired between the Corporal and the complainant ought not to be disregarded and any judgment or finding based on it vitiated.
5. Whether Exhibit “B” is inadmissible and if it is, whether the trial court as well as the Court of Appeal ought not to have expunged that piece of evidence from the record being a secondary evidence of the content of an original document and which document was not produced nor foundation laid for the admissibility of its secondary evidence.
6. Whether the findings of fact and conclusion of the learned trial Judge and affirmed by the Court of Appeal support the charge and evidence led at the trial.
7. Whether the award made by the learned trial Judge and affirmed by the Court of Appeal support the evidence led or in the alternative whether the two courts below applied the correct principles of law in reaching the award made.

It was indicated in paragraph 3.01 of the appellant’s brief that he would before or at the hearing of the appeal seek leave of this court to raise and argue the first issue for determination.

Four questions were formulated in the 1st respondent’s brief of argument. Those questions embrace all the issues formulated by the appellant. I will in the determination of this appeal confine myself to the issues identified by the appellant which are comprehensive.

I will set out the material paragraphs of the pleadings of the parties for a better appreciation of the facts of the case and arguments based on them.

Paragraphs 12 – 20 of the statement of claim read:-

“12. On or about the 21st October, 1980 at about 10.30 a.m. the 1st defendant was summoned before the Ezenei Executive Committee following upon the report by one Obi B. N. Arinze that the 1st defendant had encroached upon his adjoining land to the 1st defendant’s Head Bridge Approach Road, Asaba (1st defendant’s Petrol Filling Station).

13. When the 1st defendant and the said Obi B. N. Arinze appeared and stated their case to the committee, the 1st defendant claimed that he paid the sum of N400.00 and some drinks to the late Obi J. N. Eluaka and that no witnesses were present when he was shown the land.
14. The committee rejected his statement as that was contrary to the method of allocation of land by the Committee. The Committee also were not happy that the 1st defendant said nothing of this until after the death of the late Obi Eluaka.
15. All along the dispute had been between 1st defendant and the said Obi Arinze and had nothing to do with the plaintiff. The plaintiff will rely on the said Obi Arinze’s Solicitor’s letter No. MCU/M/Vol. 1/268 of 21st February, 1982 addressed to the 1st defendant at the trial.
16. At the trial the plaintiff will also rely on the minutes of the Ezenei Executive Committee and the letter dated 20th March, 1973 addressed to the Secretary, Ezenei Family Asaba.
17. On the 2nd May, 1982 when Obi Arinze brought his men to remove the temporary structure left by the 1st defendant on the land the 1st defendant was there in person and witnessed the whole exercise by Obi Arinze and his workers. (Italics is for emphasis).
18. On or about the 4th May, 1982 as a result of the case of wilful and unlawful damage reported by the 1st defendant to the Asaba Police on the 2nd May, 1982 the 2nd defendant came to the house of plaintiff and arrested him and took him to the Police Station Asaba at about 11.30 a.m. and detained him (plaintiff) after he had made his statement.
19. The plaintiff pleaded with the 2nd defendant in vain to grant him bail but was only granted bail when a crowd of relatives surged at the Police Station and pressed for his bail which was later granted at about 6 p.m. Plaintiff was taken on bail by one Okonma. The bail bond will be relied upon at the trial.”

The 1st defendant’s essential averments are contained in paragraphs 4-5(i) -(ix) of his statement of defence:-