Donatus Okafor V. Ifeanyi Isiadinso (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment)

On 1-3-2000, the respondent herein, as plaintiff filed a writ of summons commencing suit No A/64/2000 in the High Court of Anambra State in the Awka Judicial division at Awka against the appellant herein as defendant, claiming for the sum of N1,000,000.00 (one million naira) as general damages for false imprisonment. Both sides filed and exchanged pleadings. The plaintiff’s statement of claim is dated 20-2-2001 and filed on 28-2-2001. The defendant’s statement of defence is dated 20-3-2001 and filed on 22-3-2001.

The plaintiff testified as PW3. Two other persons testified as PW1 and PW2 in support of the plaintiffs case. The defendant testified as DW1. One other person testified as DW2 in support of the defendant’s case. Following the conclusion of evidence, both sides filed, exchanged and adopted written addresses.

On 31-3-2006, the trial court rendered judgment in favour of the plaintiff and awarded the sum of N150,000.00 as damages for false imprisonment and cost of N3,000 in favour of the plaintiff.

Dissatisfied with this judgment, the defendant on the 24-4-2006 filed a notice of appeal dated 24-4-2006 containing one ground of appeal and on 6-6-2006 filed a second notice of appeal dated 5-6-2006 containing ten grounds of appeal. The record of this appeal was received in this court on 21-5-2007, thereby entering this appeal No CA/E/151/2007 in this court.

The appellants brief of argument dated 29-2-2008 was filed on 3-3-2008. By a motion on notice dated and filed 2-10-2008, the appellant applied for an order directing that the appeal be heard only on his brief of argument as the respondent had not filed his brief of argument within the prescribed time. By a motion on notice dated 27-2-2009 and filed on 3-3-2009, the respondent applied for an order extending the time within which he can file his brief of argument in this appeal.

On 13-2-2013 this court heard the respondent’s motion and granted him extension of time to file his brief of argument. On 16-1-2014 the appellant withdrew his motion on notice dated and filed 2-10-2008 and the same was struck out by this court. The respondent did not file his brief of argument. This appeal was heard only on the appellants brief of argument.

In his brief of argument, the appellant indicated that he was abandoning the notice of appeal dated and filed on 24-4-2006 and urged this court to strike it out. The notice of appeal dated and filed on 24-4-2006 having been abandoned is hereby struck out.

The appellant in his brief of argument raised the following issues for determination-

1. Whether the trial court was right in not considering the issue of non joinder of the Police which is fatal to the claim of the plaintiff/respondent (see grounds 1 and 2 of the Notice of Appeal).
2. Was the appellant instrumental in instigating the Police to cause the arrest and detention of the plaintiff/respondent, which the appellant was found liable by the trial judge. (grounds 4, 5 and 6 of the Notice of appeal).
3. Did the trial court place the proper burden of proof on the parties before the trial court believed the evidence of the respondent that the respondent was detained on 18-4-99 until 2 pm on 19-4-99 hence the defendant/appellant was found liable for false imprisoned.
4. Whether the burden of proof in a proceeding is discharged by a generalization of the evidence adduced by the parties and permanently placing the onus of proof on the defendant/appellant as was done by the trial judge.
5. Whether the trial court was right in awarding the sum of NI50,000.00 as damages in favour of the respondent (ground 10 of the Notice of Appeal).

I will determine this appeal on the basis of the issues raised for determination in the appellant’s brief. The Learned Senior Advocate for the appellant argued under issue No 1 that the trial court did not consider the argument in the written address of Learned counsel for the appellant at the trial proceedings that “the Police” who were alleged to have arrested and detained the respondent were not made parties to the Suit and that it was bound to consider all the issues raised by the parties which are germane and relevant to doing justice in a case.

He submitted that “the Police’ is a necessary party and must be found liable for false imprisonment before the liability of the appellant for false imprisonment on account of the arrest and detention of the respondent by the Police can arise. The Learned Senior Advocate for the appellant further submitted that the failure of the trial court to consider the issue of non-joinder of the Police deprived the appellant the right of fair hearing of his case in that if the trial court had considered it, the appellant would not have been found liable.

He also submitted that the failure to consider the issue is a breach of the appellant’s right to fair hearing and is enough to cause the decision of the trial court to be set aside. He finally submitted on this point that the failure to join the Police as a party to the suit at the trial court was fatal to the case of the respondent.

It is glaring from the final written address of Learned counsel for the appellant at pages 27 to 29, particularly at page 29 of the record of this appeal that Learned Counsel for the defendant (now appellant) stated that “the court is invited to take judicial notice of the fact that the police who were alleged to have detained the plaintiff were not made parties in this appeal.”

Let me state here that the appellant did not clearly and distinctly raise the non joinder of the Police as an issue for determination in the trial proceedings.. It was tersely raised in passing, in one sentence, while arguing issue No. 2 in the final written address of the Learned Counsel for the defendant. Beyond the one sentence statement, Learned Counsel for the defendant said nothing. He merely invited the trial court to take judicial notice of the non joinder without more.