Union Bank of Nigeria Limited V. Patrick N. Ajagu (1989)

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UWAIFO, J.C.A. 

The plaintiff/respondent, a Chief Magistrate, brought action in the Enugu High Court against the defendants/appellants jointly and severally for the sum of N80,000.00 as general damages for false imprisonment. The action was tried by Ozobu, J.

On 25th March, 1985, in a reserved judgment, he found the case proved and awarded damages of N25,000.00 and costs of N800.00 to the respondent.

The 1st defendant bank appealed on six grounds (although the papers filed give a wrong impression that they are seven) complaining of (a) a denial of fair hearing, (b) insufficient proof of vicarious liability and (c) the judgment being against the weight of evidence. In reality only four grounds were argued. They seem, even then, to be tied sufficiently to the two issues raised for determination. Their counsel in the appellant’s brief of argument submitted two issues for determination. I think they are apt on the grounds of appeal argued and the case as presented at the trial. I need to set them out. They read:

“1. Whether the Appellant were given a fair hearing as envisaged by S.33(1) of the Constitution of the Federal Republic of Nigeria, 1979.

2. If the answer to above is in the affirmative, whether from the pleadings, evidence and proceedings in the court the learned trial Judge was right in finding that the Appellant knew the 2nd defendant and that they were his employer; or whether the Respondent proved that the 2nd defendant was the Appellant’s servant.

The facts of the case as I can best summarise them are that the plaintiff having a savings account with the 1st defendant at their Garden Avenue Branch, Enugu had gone there on several occasions from January, 1975 almost on a monthly (sometimes bi-monthly) basis to lodge small savings of between N60 and N100, although on one occasion he lodged N26, on six occasions N120, and on one occasion each, N200 and N300. I have stated these details to show that the award of N25,000.00 to him for false imprisonment for a period less than 45 minutes is a jackpot.

On March 1, 1982 he went to the said bank to lodge money. He got there at 2.55 p.m. and presumably soon after he had finished. As he was about leaving the promises, he had an encounter with the 2nd defendant alleged to be a gateman of the 1st defendant (now appellant). I find it difficult to paraphrase what happened in my own words and at the same time make them convey a true impression of the incident in all its ramifications. I shall reproduce the relevant aspect of the plaintiff’s evidence as recorded. It reads:

“As I went out of the premises and on getting to the iron gate, the 2nd defendant was there letting out customers. I greeted him in Igbo language in these words ‘kaemesie’ translated – ‘Good bye – we will see again’ in English. To my surprise and amazement – the 2nd defendant retorted in Igbo language in the following words ‘Obu etu iga esikenem – adam owesie-kenea’, translated in English ‘Is that how you should thank/greet me. I do not accept that type of greeting/thanks.’ The 2nd defendant hurriedly closed the gate and locked it with a padlock. The gate was the gate through which I entered the premises and the only way out. The 2nd defendant started to beat his chest and shouting that I would sleep in the premises on that day. I pleaded with him to let me out but he refused. Some people around joined in requesting him to open the gate and allow me out, others were laughing. Some customers of the bank came out from the bank and joined us at the gate. They asked him to open the gate for them. He did open the gate for them but warned me not to go out through the gate with the people he let out. I tried to use that opportunity to go out through the gate but he quickly closed the door and locked it again with the lock. He swore that I would sleep in the premises.

At this stage, I went back to the 1st defendant office and informed the 1st defendant’s officials my ordeal with the 2nd defendant who would not allow me to leave their premises. Some of the officials and customers only laughed. I requested the officials to detail one of them to accompany me to the gate and advise the 2nd defendant to open the gate for me to go. One of the officials in English Suit wanted an assurance that the 2nd defendant was at the gate which I did. And he told me to go back to the gate and that the 2nd defendant would open the gate for me. After expressing fears I went back to the gate. As the 2nd defendant saw me coming near the gate he quickly closed the gate and locked it with the padlock. I begged him to let me go out but he did not do so. At this juncture an official of the 1st defendant wearing similar uniform as worn by the 2nd defendant shouted ‘Ikenga Power’ and in response the 2nd defendant raised his fist in acknowledgement.

As people around were begging him to open the gate for me, he boasted that if I report him to the Bank Manager that nothing would happen to him. One person around warned the 2nd defendant of the consequences of what he was doing. As I went inside the bank again to report what the 2nd defendant did, he rushed inside the Bank and shouted that I should not be allowed to leave the bank.

I requested the bank clerks to open the alternative exit for me to go out through, the alternative exit is the main door to the bank counter. As the 2nd defendant was shouting I queried if no person would call him to order. I threaten (sic) to break the gate and it was at this stage that an officer infact asked one uniformed worker to open the door for me; he did at about 3.45 p.m.”

From the narrative of the plaintiff, one is left in some doubt how credible the story could be. There was apparently no cause shown why the plaintiff could have been treated that way by a gateman. The plaintiff himself tried to proffer some reason. He said: “I infer that the reason why the 2nd defendant asked me whether that was the way I will thank him was that he expected tips from me.” Objection was taken to this piece of evidence but surprisingly the trial Judge overruled the objection. This was no evidence a witness could give but an inference for the court to draw from facts placed before it. There was no evidence that the said gateman before then asked for tips from the plaintiff or anyone else. There was no evidence that he did so at the material time. In fact the plaintiff said many people were allowed to leave the premises by the gateman. He did not say any of them gave him tips before being allowed to leave the premises.

From the totality of the evidence of Theophilus Onyeji (d.w. 1) who testified on behalf of the bank, the iron gate is not meant for customers but for the use of the staff of the bank or when money is being brought in. It is therefore usually locked. Except for the use it is made of as stated above, it may be opened for a customer on the instruction of the Manager.

The plaintiff, however, in his evidence gave the impression that he could not leave the premises except through the gate. I do not think this is entirely correct. The later part of his evidence-in-chief shows an alternative exit. I recall that evidence as follows: “I requested the bank clerks to open the alternative exit for me to go out through, the alternative exit is the main door to the counter. As the 2nd defendant was shouting I queried if no person would call him to order. I threatened to break the gate and it was at this stage that an officer in fact asked one uniformed worker to open, he door for me; he did at about 3.45 p.m.