Arab Contractors (O. A. O.) Nigeria Ltd V. Gillian Umanah (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the Honourable Justice R. I. B Adebiyi sitting at the High Court of Lagos State, Lagos Judicial Division delivered on the 6th day of November, 2007. The facts that led to the appeal are as follows:

The Respondent, formerly an employee of the Appellant, while in its employ, applied for and was granted a car loan and a housing loan of N520, 000 by the Appellant in September 2004. The Respondent repaid some of the money leaving an outstanding balance of N338,147 which she failed to pay before resigning her appointment with the Appellant. Thereafter, the Appellant reported the matter to the police who then seized the vehicle bought by the Respondent with the car loan. The Appellant proceeded to file an action to recover the debt at the trial court.

In response, the Respondent filed a counter claim seeking special and general damages for the seizure of the car by the Police. The police was joined as a party to the suit but neither entered any appearance nor defended the case. The trial court granted the claims of both parties and ordered that the sum awarded to the Appellant be offset from the damages awarded to the Respondent and the balance thereof be paid by the Appellant to the Respondent. The Appellant being dissatisfied with the judgment has brought this Appeal.

The Appellant’s brief was dated 10th day of December, 2010 and filed on the same day. The Respondent’s brief dated the 8th of February, 2011 was filed the same day and deemed filed on the 27th of June, 2011.

Appellant’s counsel, Kunle Okesanya identified three (3) issues for determination as follows:

1. Whether the lower court was right to have found and held the Appellant liable for the seizure of the vehicle by the police and consequently for the damages suffered by the Respondent.
2. Whether the lower court was right to admit and hold that the Respondent proved her counter claim solely on the basis of Exhibits D1-10.
3. Whether the lower court was right to have refused the Appellant an order to sell the vehicle to realize the debt owed to it by the Respondent.

On the other hand, counsel to the Respondent, Mike Umonnan Esq adopted the Appellant’s issues 1 & 3 and formulated a new issue 2 as follows:

“Whether it was right for the learned trial judge to have admitted Exhibit DW1 (D1).”

This issue can be subsumed under the Appellant’s issue 2 and as such I will adopt the issues as raised by the Appellant’s counsel.

ISSUE ONE

Appellant’s counsel contended that the trial court was wrong in holding the Appellant liable for the action of the police in seizing and detaining the Respondent’s vehicle. Counsel argued that all the Appellant merely did was to report a crime viz the Respondent’s failure to pay the debt due to the Appellant to the police when the Respondent’s whereabouts could not be ascertained. The Police then proceeded to investigate the matter and acted independently. Thus, quite contrary to the observation of the trial court that the claimants were instrumental to the detention of the Respondent’s vehicle by the police, counsel submitted that the Appellant did nothing to influence the police.

Counsel also argued that the Police didn’t seize the vehicle to coerce the Respondent to pay off the debt, but did so and encouraged the parties to go and settle the dispute. Counsel argued that the police is an independent organ set up and granted powers by the Police Act and the Constitution and which has the authority and power to investigate the complaint made by the Appellant against the Respondent. The decision to investigate the commission of an offence lies entirely at the discretion of the police. Counsel cited TOTOR V. AWEH (2000) 2 NWLR Pt. 644 Pg, 309 at 311; MANDILAS & KARABERIS V. APENA (1969) ALL NLR 382.

Counsel further contended that the Appellant like any other citizen had the right to make a complaint to the police and the making of the complaint without more cannot be held to mean that the Appellant was actively instrumental in setting the law in motion against the Respondent especially as there was no evidence before the court to this effect. Counsel averred that the Appellant cannot be held liable for the wrongful act of the police. If indeed what the police did was wrongful, then only the police can be punished not the Appellant.

On the other hand, Respondent’s counsel submitted that the lower court was right to have found and held the Appellant liable for the seizure of the vehicle in question by the police. Counsel further submitted that the findings of the trial court that the Appellant was the one who set the machinery in motion for the arrest of the Respondent and seizure of the vehicle was correct. Counsel pointed out that the Appellant had at the trial court, through its sole witness, Mr. Njoku, informed the court that there was a disagreement between the parties and the Appellant reported the matter to the police so that the Respondent could come and settle with it. The witness had also said that when the Respondent did not settle with the Appellant, it refused to direct the police to release the vehicle. Counsel argued that this admission by the Appellant’s sole witness reveals that the Appellant had the power to direct the police to release the vehicle and this raises the presumption that the Appellant was instrumental to the seizure of the vehicle in the first place. Counsel also pointed out the fact that the said vehicle was in the possession of the Appellant.