Uac of Nigeria Plc V. Prince O. O. Sobodu (2006)

LawGlobal-Hub Lead Judgment Report

ADAMU, J.C.A.

This is an appeal against the judgment of the High Court of Lagos State sitting at Ikeja Judicial Division delivered on 22/9/91.

In his judgment the learned trial Judge E. F. Longe, J held that the plaintiff/respondent was entitled to damages from the defendant/appellant for his unlawful arrest and detention by the police upon a report made against him by the said defendant/appellant (hereinafter called “the appellant”). The facts of the case giving rise to the appeal are as follows:-

The plaintiff/respondent (also hereinafter called “the respondent” was employed by the appellant as a sales clerk and he rose to become the Hardware Merchandise Controller before his employment. Before then, the appellant had discovered a fraud which took place in its hardware department of Kingsway Stores sometime before 13/6/85 whereby an amount over N800,000.00k was found to have been stolen. The appellant promptly reported the matter to the police and on 24/5/85; two plain-clothed policemen visited the respondent’s office where they thoroughly ransacked before they made him to take them to his residence at Surulere which they also searched. The two detectives subsequently took the respondent to Panti Police Station where they made him to make a statement after which he was detained for 3 days and he was released on 27/5/85. The said respondent was eventually arraigned in the Magistrate Court along with 15 others on charges of conspiracy, fraud and stealing. He was however discharged by the said Magistrate Court on 10/11/86. Upon his discharge and after some correspondences between his lawyer and the appellant who had terminated his appointment and refused to reinstate him, the said respondent instituted his action against the appellant claiming N 1,000,000.00k (One million naira) damages for wrongful termination of his appointment and a declaration that he still held a pensionable appointment with the appellant. He also claimed another N 1,000,000.00k (One million naira) for his unlawful arrest and detention by the police engineered by the appellant. After exchange of pleadings and at the conclusion of hearing at the trial court, judgment was delivered by the said court on 22/9/99. In the said judgment, the respondent was awarded N500, 000.00 (five hundred thousand naira) as damages against the appellant for unlawful arrest and detention of the respondent. It is against this judgment that the appellant is now appealing in this court. It’s original notice of appeal dated and filed on 23/9/99 was amended with an amended notice of appeal dated and filed on 31/12/03 containing 6 (six) grounds of appeal.

From it’s six grounds of appeal, the appellant in its brief of arguments dated on 31/12/03 and filed in this court on 2/1/04 distilled the following three (3) issues for determination in the appeal:-

“1. Whether on the evidence before the court the defendant is liable for the tort of false imprisonment?

2. Whether on the evidence before the court the defendant is liable for the tort of malicious prosecution?
3. Whether the damages awarded was justifiable.”

The respondent also filed a respondent’s brief, which though undated was filed on 4/11/02 in this court. In it, the following two (2) issues for determination are identified:

4.1 Whether the trial judge was right or justified in giving judgment on the claim for malicious prosecution rather than on that of false imprisonment.

4.2 Whether the trial Judge was right or justified in basing the measure or quantum of damages on the loss of reputation, or suffering of and human rights posture of the plaintiff while in the defendant’s employment.”

From the above two sets of issues, it appears that the parties are agreeable or have concurred on the issues for determination in the appeal. It must however be stated that at the hearing of the appeal, when their attention was drawn by the court that they have not related their issues to the grounds of appeal, their learned counsel have attempted to do so to our satisfaction before they adopted their respective briefs of arguments.

Under its issue No.1, it is pointed out in the appellant’s brief that the respondents relief (e) which was granted by the trial court (in its judgment) was for “unlawful arrest and illegal detention engineered by the defendant (appellant).” It is submitted that the claim implies the tort of false imprisonment.” The authority of Mandillas & Karaberis Ltd. v. Lamidi Apena (1969) ANLR 390 at 386 where the Supreme Court has held that for such a claim to succeed the plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against the former is cited and relied upon by the appellant. Thus by the interpretation of the above authority of the apex court, this court has on several occasions decided that it is not enough for the plaintiff to show or prove that the defendant has made a report against him to the police but he has to go further and show that the said defendant has mentioned his name as a person who committed the offence and also pressurized the police into acting against him see Onyedinma v. Nnite (1997) 3 NWLR (Pt.493) 333 – 344; Ezeadukwa v. Maduka (1997) 8 NWLR (Pt.518) 635 at 667; Abdullahi v. Raji (1998) 1 NWLR (Pt.534) 481 at 492; Nwadinobi v. Botu (2000) 9 NWLR (Pt.672) 220 at 228; Totor v. Aweh (2000) 7 NWLR (Pt.644) 309 at 321; and Iwunwah v. Iwunwah (1999) 13 NWLR (Pt.635) 425 at 431 and 435 cited in support of the submission. It is argued that in the present case, the evidence adduced by the respondent in proof of his allegation of false imprisonment against the appellant merely shows that his interrogation, arrest and detention by the police was as a result of the appellant’s report of fraud in the merchandise department to the police. There is no evidence by the respondent that his name was given or mentioned to the police as a culprit in the crime reported. (See the evidence of the respondent and DW 1 to that effect at pages 172 and 176 of the record of appeal). The brief points out that the onus of proof that he was specifically named by the appellant to the police as a culprit in the crime reported rests on the said respondent who has not discharged it by evidence. However despite the non-discharge of the burden of proof of his allegation by the respondent, the trial court wrongly drew its own conclusion, which is not supported by any evidence throughout the record. It is argued in the brief that without the requisite evidence in proof of his allegation or claim against the appellant, the respondents claim of false imprisonment must fail- see Balogun v. Labiran (1988) 1 NSCC 1056; (1988) 3 NWLR (Pt.80) 66 cited in support of the above argument.

In his reply to the above submission, the respondent in his brief under the issue on review states that the appellant has not proffered any satisfactory evidence for his defence at the trial court on the torts of false imprisonment and malicious prosecution leveled against him by the respondent. He merely denied the allegation by a general traverse (see clause 1 of the statement of defence). The effect of that general traverse is said in the respondent’s brief to cast the burden of proof on the plaintiff of the allegation so denied – see Warner v. Sampson (1959) 1 QB 297 at 310 cited in support of the respondent’s above argument. It is also submitted in the brief under review that the respondent’s claims against the appellant at the trial court (per his pleadings) are for both false imprisonment and malicious prosecution – see pages 142, 147 and 148 of the record of appeal. It is argued by the respondent that the police did not first smell a rat in their office and on their own went to the Hardware department of the appellant but they acted upon a report made to them by someone. The respondent being the manager or head of that department who is responsible and accountable to it, at the material time the mere report of crime in the department by the appellant is or amounts to a report against him. The appellant’s conduct of not issuing a query to the respondent before the arrest of the said respondent and its failure to investigate the truth of the facts stated by the said respondent (in exhibit 9) in answer to the query issued to him but instead terminated the laters appointment show the extent of malice it had against him. This malice is said to be sufficient to sustain his claim of malicious prosecution against the appellant. It is said that malice for the purpose of the claim can be either implied or constructive – see Payin v. Aliuah (1953) 14 WACA 267; Blacks Law Dictionary 7th Edition pp. 968 – 969 on the definition of implied or constructive malice cited in the brief on the contention. The authority of Madillas Karaberies v. Apena (supra) cited and relied upon by the appellant is said in the respondents brief to have been over ruled in Tims v. John Lewis & Co. Ltd. (1951) 2 KB 459 at 472, and John Lewis & Co. Ltd v. Tims (1952) AC 676; (1952) 1 ALL ER 1203 H.L. It is also contended that where a prosecution is commenced bona fide on the belief that the plaintiff is guilty but continued upon acquisition of knowledge of his innocence it will suffice to make the defendant liable in a claim for malicious prosecution – See Fyz. John v. Maclinder (1861) 9 C.B.N.C. 505 at 531 cited in support of the contention. It is stated in the brief that the appellant in the instant case allowed the prosecution of the respondent to continue after knowledge of his innocence from exhibit 9. Consequently, it is submitted in the brief, the judgment of the trial court in the present case ought to be upheld and the appellant’s appeal on this issue or point should be dismissed. In another arm of his submission under the issue, the respondent refers to exhibit 16 which is the DPP’S advice recommending the termination of the criminal charges against him at the Magistrate Court upon which he was discharged by the said Magistrate. It is submitted that such a discharge also amounted to an acquittal because it is categorically stated in the said DPP’S advice that there was no case against the respondent – see page 221 of the record of appeal; and Atkins v. Lee (1839) 5 M & W270 cited in support of the submission. On the two essential ingredients to be proved in a claim for malicious prosecution, it is the respondent’s submission that they were proved at the lower court. The ingredients are mentioned as: (1) The institution of the prosecution without a reasonable and probable cause and (2) that the defendant was acting with malice (whether actual, implied or constructive) -see Cornford v. Calton Bank Ltd. (1899) 1QB 392, cited in support of the preposition. DW 1 who gave evidence in favour of the appellant and stated that a mere report was made to the police without mentioning any name is said to be not in a position to know that as he was not the person who made the report to the police. Thus it is stated that the trial Judge who heard the witnesses and observed their demeanor rightly rejected DW1’s evidence and preferred the version of the respondent upon which he based his judgment. It is also pointed out by the respondent that the appellant did not act reasonably in causing the prosecution of the respondent because they did not issue him with a query before lodging their complaint against him and when they subsequently issued him with exhibit 8 (i.e. the query) and he replied (in exhibit 9) they did not investigate the truth of his defence but allowed the prosecution against him to continue until he was discharged by the Magistrate Court as a result of the DPP’s advice. Finally, the respondent urges us to resolve issues 1 and 2 of the appellant and issue 1 of the respondent’s brief in favour of the respondent and to affirm the judgment of the trial court.

At the tail end of his submission under his issue 1 (of his brief) the respondent indicated that his issue No.1 covers the appellant’s issues 1 and 2. It then becomes necessary for me to set out the appellant’s submission under his 2nd issue so that I can conveniently treat and resolve both the appellant’s issues Nos. 1 and 2 together as done in the respondent’s brief. In its argument or submission under their 2nd issue, the appellant points out that after refusing and dismissing all the respondent’s claims (a – d), the learned trial Judge granted their claim (e) as per their further amended statement of claim (at page 152 of the record). It is pointed out that the relief claimed by the respondent in that paragraph was for false imprisonment but in his judgment the trial Judge granted him a relief for malicious prosecution which he did not claim against the appellant. This is said to be contained at page 223 of the record where the learned trial judge stated that the damages he granted or awarded against the appellant or in favour of the respondent was for “unlawful arrest and detention by the Police when the defendant lodged a complaint of fraud against the plaintiff which led to the plaintiff’s being arraigned (sic) before the court of law.” Thus the learned judge included in the relief he granted under paragraph (e) another relief for malicious prosecution which was not the relief sought for by the respondent in his claim under paragraph(e). This court is therefore urged by the appellant to reverse that decision of the learned trial Judge on the ground that the court does not or cannot make out a case for a party which is different from the case he has made up for himself. It is also submitted that the court cannot or does not grant to a party a relief which he has not claimed as done in the present case – See Ekpenyong v. Nyong (1975) 9 NSCC 28; (1975) 2 SC. 71 Iwunwah v. Iwunwah (1999) 13 NWLR (Pt.635) 425 at 435; and Adeniran v. Alao (2001) 18 NWLR (Pt.745) 361 cited in support of the above submission of the appellant. It is further submitted that even if the trial court was justified in considering the appellant’s liability for the tort of malicious prosecution, the ingredients for the proof of the tort which are listed by the court itself are lacking or have not been established by the respondent in the present case and the learned trial Judge should have found the appellant not liable for malicious prosecution of the respondent. It is pointed out that for the plaintiff to prove or establish the claim for malicious prosecution against the defendant he must plead and adduce evidence of all the ingredients of the tort – see Balogun v. Amubikahun (1989) 3 NWLR (Pt.107) 18 at 26; Bayol v. Ahemba (1992) 8 NWLR (Pt.257) 104 at 109; Ejikeme v. Nwosu (2002) 3 NWLR (Pt.754) 356 at 370-371 cited in support of the submission.

It is argued that in the present case, the respondent did not prove that the appellant prosecuted him or set the law in motion towards his prosecution by merely making a report of fraud to the police without any evidence that the respondent’s name was mentioned or given by the appellant in its report to the police. Moreover, it is stated that the appellant who has a reasonable cause in making his complaint of fraud to the police as a result of fraud in its hardware department cannot be said to have any malice or ill-will against the respondent or any of the persons arrested or detained by the police as suspects in the alleged crime so reported. Consequently, it is argued that the conclusion or finding of the learned trial Judge of malice on the appellant’s part was erroneous and ought to be reversed. Finally the appellant stated that after making its report to the police, it has no control on their activities on the investigation or prosecution of the suspects. Therefore the finding of the learned trial Judge that it ought to have withdrawn the respondent’s name from those being prosecuted by the police after it received his explanation in exhibit 9 is based on mere assumption or speculation rather than on the evidence. This court is urged to reverse that conclusion or finding of the learned trial judge or to discountenance it.