Mandilas And Karaberis Ltd. Vs Lamido Apena (1969)
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In the Ibadan High Court in suit 1/219/65 the plaintiff’s writ read:-
“The plaintiff’s claim against the defendant is for the sum of £600.0s.0d. (six hundred pounds) being damages for false imprisonment and malicious prosecution of the plaintiff by the defendant at Ibadan in 1965.”
On the 29th August, 1966, Ogunkeye J., dismissed the plaintiff’s claim for malicious prosecution but found him on his claim for false imprisonment and awarded £80 damages together with 40 guineas costs of the action, and against that decision the defendant has appealed to this Court. It was not in dispute that the 1st defendant’s witness, an automobile engineer who was in the employment of the defendant, made a report to the police that an excessive amount of paint was being used in the defendant’s workshop and that the plaintiff was employed by the defendant as a paint sprayer, and that the police subsequently arrested the plaintiff and charged him with conspiracy to steal and with stealing from the defendant and that he was subsequently acquitted in the Magistrate’s Court, Ibadan on the charges. The issue therefore in the claim for false imprisonment was whether it was the defendant through its employee that had set the law in motion and had caused the plaintiff to be arrested. The learned trial judge in his judgment said:-
“It is therefore my view that when the 1st defence witness reported to the police that the plaintiff stole the company’s money, there was no justification for such a report. The arrest of the plaintiff was a direct act of the defendant through its engineer the 1st defence witness and the defendant is clearly liable for the subsequent imprisonment of the plaintiff. The gist of the action of false imprisonment is the mere imprisonment; the plaintiff need not prove that the imprisonment was unlawful or malicious, but establishes a prima facie case if he proves that he was imprisoned by the defendant; the onus then lies on the defendant of proving a justification: see Hicks v. Faulkner (1881) 8 Q.B.D. 167. In the present case, the plaintiff has established that he was arrested by the police on a report lodged by the defendant’s agent. The defendant has failed to justify that arrest and subsequent imprisonment. I have said earlier that the defendant has not denied the allegation of false imprisonment. Order 13, rule 9 High Court (Civil Procedure) Rules provides: ‘9. The defendant’s pleading or defence shall deny all such material allegations in the petition as the defendant intends to deny at the hearing. Every allegation of fact, if not denied specifically or by necessary implication, stated to be not admitted, shall be taken as established at the hearing.’ The defendant did not deny or say anything about the allegation. And in view of the complete silence of the defendant on the point in the evidence adduced on its behalf, I have no alternative but to hold that the plaintiff succeeds on the first claim and his damages will be assessed hereafter.”
Chief Williams for the appellant has taken two points in this appeal. First he admits that the learned trial judge was wrong to hold that the defendant never denied the plaintiff’s allegation of false imprisonment as in fact Paragraph 3 of the statement of defence pleaded:-
“3. That save as in hereinafter specifically admitted the defendants deny each allegation in the statement of claim as if they were set out seriatim and specifically traversed.”and he relied for establishing that this was all that was necessary by way of denial on Warner v. Sampson (1959) 1 Q.B. 297 where Lord Denning at page 310 said:
“Since so much effect has been given to this general denial, I would say a word about it. It is used in nearly every defence which goes out from the Temple. It comes at the end. The pleader has earlier gone through many of the allegations in the statement of claim and dealt with them. Some he admitted. Others he had denied. Whenever he knows there is a serious contest he takes the allegation separately and denies it specifically. But when he has no instructions on a particular allegation, he covers it by a general denial of this kind, so that he can, if need be, put the plaintiff to proof of it at the trial. At one time the use of this general denial was said to be embarrassing: see British and Colonial Land Association Ltd. v. Foster and Robins (1888) 4 T.L.R. 574, but since 1893 it has been recognised as convenient and permissible: see Adkins v. North Metropolitan Tramway Co. (1893) 10 T.L.R. 173. Sometimes the pleader ‘denies,’ sometimes he ‘does not admit’ each and every allegation; but whatever phrase is used it all comes back to the same thing. The allegation is to be regarded ‘as if it were specifically set out and traversed seriatim.’ In short, it is a traverse, no more and no less. Now the effect of a traverse has been known to generations of pleaders. It ‘casts upon the plaintiff the burden of proving the allegations denied’: see Bullen and Leake on Precedents (3rd ed., p. 436). So this general denial does no more than put the plaintiff to proof.”
We agree with Chief Williams on this submission and would point out that this Court in Ace Jimona Ltd. v. The Nigerian Electrical Contracting Co. Ltd. SC 586/64 on the 20th of May, 1966 adopted the views that Lord Denning had expressed in that case which we have cited. In our view therefore the learned trial judge was in error in thinking that the defendant had not denied the plaintiff’s allegation of false imprisonment. Chief Williams second point was that there was no evidence that the defendant caused the arrest of the plaintiff upon which the learned trial judge had in fact found that the arrest of the plaintiff was a direct act of the defendant, because what the 1st defence witness said in his evidence was:
“I thereupon reported the case to the police for investigation. I did not instruct the police to arrest the plaintiff I mentioned the plaintiff’s name to the police when I made the report The plaintiff’s name was mentioned to the police because he was connected with the vouch-ers we suspected.”
What the police officer who arrested him said in his evidence was:-
“On 30th March, 1965, a case of stealing was reported at the Regional C.I.D. where I was then working. It was made by one Mr. Jasper, an engineer working for the defendant in Ibadan. I later went to the premises of the defendant the same day where I got one Folasade Benson Saka arrested. The present plaintiff was not then in the premises. I do not know where he was. On 31st March, 1965 1 again went to the premises of the defendant where I got the plaintiff arrested. I also arrested one Stephen Adeyemo. I took them to the Regional C.I.D. office where I charged and cautioned them for stealing. They volunteered statements in English language. When Mr. Jasper first came to me, he reported a case of stealing money. I conducted investigation into the case. I started my investigation on 30th March, 1965. I inquired into the allegations made that the prices of paints bought were inflated. I contacted 2 paint sellers from whom I obtained statements. I also visited U.T.C. Ltd. and obtained a statement from the salesman there too. I arrested the suspects immediately after I had collected certain documents following the report. It was Mr. Jasper who brought the documents when he came to lodge the report. I cannot remember whether in making his report Mr. Jasper mentioned the name of the plaintiff.”
These passages which are in our view the only material ones in the evidence dealing with the report to the police, showed in the submission of the appellant’s counsel that it was action, quite independent of the defendant, by the police who after investigation arrested the plaintiff that was the cause of his arrest and we agree with that submission. We moreover note that later in his judgment when dealing with the issue of malicious prosecution, which he found was not proved the learned trial judge said:-
“In the present case, on the evidence before me, I find as a fact that the prosecution was instituted by the Commissioner of Police. There is no evidence before me from which I can infer that the defendant did more than lodge a report. In the circumstances, I hold that the defendant was not the prosecutor in the criminal case.” This clearly is completely inconsistent with his earlier finding that “the arrest of the plaintiff was a direct act of the defendant through its engineer, the 1st defence witness, and the defendant is clearly liable for the subsequent imprisonment of the plaintiff.”
In our view it is clear from Danby v. Beardsley (1880) 43 L.T.R. 603 that to succeed the plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against the plaintiff, and this was not shown here. Moreover Payin v. Aliuah (1953) 14 WA.C.A. 267, in which from the judgment it appears the facts were that “the appellant caused them (the respondents) to be prosecuted on a charge of stealing some coconuts from a plantation which the appellant alleged was his property when in fact the plantation was, to his knowledge, the property of the respondents”, must be held in our view to have been decided on the facts that the West African Court of Appeal found established there in the lower court when the learned President said at page 268:-
“While it is true that the learned trial judge found as a fact that it was an inspector of police `who actually preferred the charges’, and that such finding was based on evidence given by a witness called by the respondents, there is a considerable volume of evidence upon which the learned trial judge was, in my view, justified in drawing the conclusion, which he did, that it was the appellant who was responsible for putting the law in motion against the respondents, that it was he who instigated the prosecution.”
Here all that was proved was that the defendant through its employee reported the matter for investigation and it did not “instigate the prosecution” of the plaintiff at all.
The police, as a result of the information given and after investigation, of their own volition chose to prefer charges and prosecute the plaintiff; the defendant cannot be held liable on a claim for false imprisonment in those circumstances for the completely independent action of the police.
The appeal is accordingly allowed and the judgment in so far as it awarded the plaintiff £80 damages for false imprisonment together with costs of 40 guineas in the High Court is set aside and the plaintiff’s claim is dismissed with 20 guineas costs in the High Court to the defendant. The appellant is entitled to the costs of this appeal which we assess at 46 guineas.
Other Citation: (1969) LCN/1646(SC)