Afribank Nigeria Plc V. Sylvester Onyima & Anor (2003)
LawGlobal-Hub Lead Judgment Report
IFEYINWA CECILIA NZEAKO, J.C.A.
On 13th December, 1996, Heman J., sitting at the High Court of Justice Bauchi in Bauchi State, Nigeria, delivered judgment in a suit filed by the plaintiffs. In the suit, the plaintiffs who are now respondents in this appeal, claimed from two defendants, viz; the Commissioner of Police Bauchi State and the appellant herein, a Banking Institution, N5 million, being aggravated general damages for unlawful arrest and detention of the respondents and the sum of N2 million being general damages for defamation of the character of the 1st respondent, arising from the letter of the appellant, dated 14/9/95, alleging that the 1st respondent had fraudulently, overdrawn his account with the appellant/bank.
The claim was made against the defendants jointly and severally.
The 1st defendant/bank filed had exchanged pleadings with the plaintiffs, but the 2 defendant, the Commissioner of Police, though duly served, neither entered an appearance, nor filed a defence to the suit and never participated in the trial.
At the trial, the 2nd plaintiffs testified on their own behalf and after cross-examination, closed their case. The 1st defendant/bank did not lead evidence. They rested their case on the plaintiffs’ case.
The learned trial Judge delivered a considered judgment, finding the defendants liable jointly and severally. He awarded N250,000.00 for aggravated general damages for unlawful arrest and detention of the two plaintiffs and N50,000.00 general damages against the 1st defendant/bank for defamation of the character of the 1st plaintiff.
The 1st defendant/bank, dissatisfied, has appealed against the judgment on 4 grounds. The bank is the only appellant in this appeal.
For the appeal, learned Counsel for both parties have filed and exchanged briefs of argument as required by the rules of this court.
For the appellant/bank, the following 5 issues were formulated for determination in this appeal:
“(a) Whether by merely giving information to the police of suspected fraud, the appellant’s/bank area manager, could be held responsible for the consequent arrest and imprisonment of the plaintiffs (respondents) by the police.
(b) Whether there was any evidence of malice, or of any interference by any staff of the appellant with the police discretion to arrest and detain the plaintiffs, warrant the finding that the appellant was jointly and severally responsible for the arrest and imprisonment of the plaintiffs.
(c) Whether there was any evidence of aggravation of damages to warrant the award of N250,000.00 aggravated damages for wrongful arrest and detention.
(d) Whether, without setting out the full text of the alleged publication of the offensive part verbatim, the court could proceed to award general damages for alleged libel contained in the publication.
(e) Whether, considering the totality of evidence led, the N300,000.00 general damages awarded by the court is not excessive and reasonably disproportionate to the alleged injury suffered by the plaintiffs.”
The respondents’ issues formulated by their counsel are as follows:
“(i) Whether the High Court was justified in finding that the arrest and detention of the respondents by the police was through the instigation and instrumentality of the appellant/bank and that the bank did more than merely reporting a crime to the police.
(ii) Whether the award of N250,000.00 aggravated general damages against the appellant/bank and the Commissioner of Police Bauchi State, jointly and severally for wrongful arrest and detention was justifiably and reasonably made.
(iii) Whether the High Court was justified in awarding N50,000.00 general damages against the appellant/bank for libel having regard to the pleading and evidence produced before the court.”
At the hearing of the appeal, neither the parties nor their counsel were in court. As briefs had been filed and exchanged, the appeal was deemed argued based on the briefs. This accords with Order 6 rule 9(5) of the Court of Appeal Rules 2002.
I deem it appropriate to state here, that I had discovered two briefs of argument in the file, for the appellant, one filed on 22/7/99, by Suleiman Wurno Esq. and the other filed on 8/11/2002 by Mashood Sanusi Esq. There is absolutely nothing in the file to explain the duplication. There is no application withdrawing the earlier brief or for leave to file an amended brief or a new one out of time by another counsel, three years after the first one was filed.
The respondents’ brief was filed on 17/3/2000, in response to the 22/7/99 appellant’s brief.
I have, in the circumstances, decided to determine this appeal, based on the earlier brief filed on 22/7/99 by the appellant/bank.
The facts which set off the action at the court below, derived from the records can be summarized as follows:
The 1st respondent, a business man and his wife, the 2nd respondent herein, were residing at Dadin Kowa.
The said 1st respondent had been a current account I customer of the appellant/bank at its Dadin Kowa branch for about 10 years. The second respondent, a housewife, had no account or any relationship with the appellant/bank.
The said 1st respondent had been enjoying some over-draft facilities approved by the bank manager of the appellant’s Dadin Kowa branch. This, he testified he was repaying from the proceeds of his business on account of which he had secured the facilities.
Sometime in September, 1995, the 1st respondent received a letter, which surprised and disturbed him. It was dated 14/9/95 and addressed to him by the appellant/bank. In the letter, the appellant bank alleged that the 1st respondent had fraudulently overdrawn his account in the sum of N815,008.10, beyond his approved limit of N40,000.00. The letter was tendered at the trial and admitted in evidence as exhibit ‘A’.”
According to the 1st respondent, the contents of the letter terribly disturbed him. For, he had not fraudulently overdrawn his account. He was not a staff of the bank.
On 20/9/95, the Dadin Kowa Branch Manager of the appellant bank, came to the home of the respondents, bringing some people, some of whom were later identified as policemen. They saw the 2nd respondent, the wife of the 1st respondent and enquired about him. When she informed them that her husband who had gone to Jos was not at home, the bank manager asked the policemen to arrest her. When she enquired the reason, they told her that her husband had collected their money and that they were looking for him and she must be arrested and taken to the police station for detention, since her husband could not be found.
The 2nd respondent in spite of pleas, was whisked off to the Dadin Kowa station and detained for hours in their cell. She was later released on bail as evidenced by the bail bond – exhibit B, requiring her to report at the station the next day.
The 1st respondent later came home that day. As the 2nd respondent was intimating her husband, the 1st respondent of her ordeal, the same persons who had arrested her, were again led to their house by the same branch manager. They were driven there in the manager’s official car. The policemen showed the 1st respondent a copy of the letter of 14/9/95 written to him by the appellant bank.
They whisked him away to the same police station. They detained him there till the next day, then they took him with them in search of other debtors of the bank, driven also by the driver of the manager of the bank. The policemen also, took the 1st respondent to some of his friends from whom he was able to raise N152,000.00 which they then carried with him to the bank to lodge into his account, the two policemen who took him from place to place as aforesaid, were driven with him in the car of the appellant bank by the bank’s driver.
After lodging the money, 1st respondent was moved to Gombe police station in the same car and detained for one night. The next day, he was again driven to the S.I.I.B. Police Headquarters in Bauchi, Bauchi State and detained.
While in Bauchi, the appellant’s area manager Bauchi, came to the police station and the 1st respondent was brought out of the cell where he had been detained. The manager questioned him as to how he was going to pay the debt, and when he told him, the area manager asked him to put it in writing. This he did.
The 1st respondent was thereafter released on bail. This was on 29/9/95. The 1st respondent had been imprisoned altogether for about 9 days, in cells in Dadin Kowa, in Gombe and in Bauchi. The 1st respondent was never charged to court.
Before addressing the substance of the issues, I will first deal with some procedural matters observed relating to the issues and grounds of appeal. The appellant’s issues are one too many. They have framed 5 issues out of 4 grounds of appeal.
It is well established that it is undesirable for issues for determination to exceed the number of the grounds of appeal. It is more in keeping with practice for issues to be fewer than the grounds, or for both to be the same. Osinupebi v. Saibu, (1982) 7 SC 104 at 110-111; Onyesoh v. Nnebedum (1992) 3 NWLR (Pt. 229) 315 Onifade v. Olayiwola, (1990) 7 NWLR (Pt. 161) 130 at 157; Salzgitter Stahl Gmbh v. Aridi Ind. Ltd., (1996) 7 NWLR (Pt. 459) 192 at 200 para. D.
A single issue should admit of points raised in one or more grounds of appeal. A number of grounds may raise a single issue, not the other way round. Onyioha v. Ayashe (1996) 2 NWLR (Pt. 432) 567 CA; Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139; Aja v. Okoro (1991) 7 NWLR (Pt. 203) 260.
It is therefore not right for the appellant herein to formulate 5 issues out of 4 grounds of appeal.
It has been observed that issues (a) and (b) seem to emanate from ground 1 of the grounds of appeal. Issue (b) has emerged from paragraph 3 of the particulars of ground (a). This ought not to be, and I am of the view, that issue (b) is only a subsidiary issue, which can be addressed under issue (a) and should not become a substantial issue obscuring the major matter in issue. In any event, particulars of error to a ground of appeal cannot support an issue for determination.
For the law is well settled that the issue for determination in an appeal must relate to the grounds of appeal themselves not to the particulars thereof. See Ibrahim v. Mohammed (1996) 3 NWLR (Pt. 437) at 453; Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514 at 529; Western Steel Works Ltd. v. Iron & Steel Workers Union of Nigeria (1987) 1 NWLR (Pt. 49) 284.
Where an issue formulated suffers from one or the other of the defects referred to above, such as that it is not related to any grounds of appeal, it must be regarded as incompetent and be struck out.
In these premises, issue (b) of the appellant is hereby struck out. This leaves 4 issues (a), (c), (d) and (e) for determination. It is also observed that the appellant has not aligned his issues to the grounds of appeal.
The exercise of aligning issues with grounds of appeal has among other things, the merit of enabling the court identify which ground of appeal succeeds or fails, as the case may be, when an issue is resolved. I will proceed now to align them thus:
Ground 1 – Issue No. (a)
Ground 2 – Issue (c)
Ground 3 – Issue (d)
Ground 4 – Issue (e).
The contents of the respondents’ issues are virtually the same in substance as the appellant’s, but are more terse. I prefer them for this judgment. They too, have not entirely aligned their issues with the grounds of appeal. However, the position is that –
Ground 1 goes with issue (i)
Grounds 2 & 4 – issue (ii)
Ground 3 -issue (iii)
Issue No.1 of the respondents is the same in substance as issue (a) of the appellant. It questions the decision of the trial court that the 1st defendant, who is the appellant herein, instigated the arrest and detention of the plaintiffs/ respondents, and did more than merely report a crime.
Regarding this question, which determines whether the appellant was liable for false imprisonment, the learned trial Judge in his judgment stated his findings as follows:
“It was contended on behalf of the 1st defendant by their counsel S. Wurno, Esq. that the 1st defendant could not be liable for false imprisonment because all that the area manager of the 1st defendant did was to merely write to the police to report a criminal offence. He further submitted that to prove unlawful arrest and detention, the plaintiff must prove that the defendant made a report which to his knowledge was false, and without reasonable and probable cause, and that the defendant acted with malice. He referred to Okechukwu v. Nnamani (1985) HCNLR 555. I have considered this submission. I find it most misconceived and not a reflection of the evidence from the contents of exhibit P1, the personal involvement of the 1st defendant’s Dadin Kowa branch manager in leading the Police to the plaintiff’s house, the use of 1st defendant’s car for the arrest and movement of the plaintiffs and the 1st defendant area manager’s visit to the 1st plaintiff at the SIIB Bauchi, while he was in custody. I am satisfied that the 1st defendant did more than merely report a crime, and that they indeed instigated the arrest and detention of the plaintiffs. I am also satisfied that the defendant knew their report to be false hence the failure to prosecute the plaintiffs in court. As the plaintiffs testified, since their release, they were neither re-arrested nor taken to court for alleged crime. Payin v. Aliuah (1953) 14 WACA 267, it was held that as there was considerable evidence that it was the appellant who was responsible for putting the law in motion against the respondents the fact that an officer of the police had proffered the charges did not prevent a conclusion that the appellant had instigated the prosecution. See also Okonkwo v. Oghogu & Anor. (1996) 37 LRCN 580.”
Regarding this issue, the appellant’s learned Counsel made the following submissions:
He contended that, the appellant was not liable with the police for any wrongful arrest of the respondents, that all the area manager of the appellant did was to report a suspected case of fraud, involving the 1st respondent, and that the discretion to arrest and detain was entirely that of the police.
Learned Counsel pointed out that every citizen has a duty to report a suspected offence to the Police for investigation and apprehension and unless it is shown that the appellant directly interfered with police discretion, an action cannot lie against a citizen for false imprisonment – Esther Adefunmilayo v. Omolara Oduntan (1958) WRNLR 31 relied upon. Also Bank of West Africa Ltd. v. Peter Ernest Odiatu (1956) LLR 48.
It was finally submitted that the trial court made no specific finding that appellant’s staff interfered with or unduly influenced the police in making the arrest and detention.
Invigorated by a plethora of judicial pronouncements of this Court and the Supreme Court is that an action for unlawful arrest and detention does not lie only against a party, who physically commits the tort, but also against he who directly or actively instigates or is instrumental to the commission of the tort.
On the submission of the appellant that they merely reported a crime to the police, who acted on their initiative, counsel for the respondents asked why the appellant/bank did not stay away after their report to the police and allow the police to do their work, and decide on their own whether it was necessary to arrest and detain the respondents – husband and wife for simply drawing money from appellant bank beyond the overdraft limit approved for the 1st respondent. Onyedinma v. Nnite (1997) 3 NWLR (Pt. 493) 333 at 346 CA.
Counsel referred to the abundant and uncontroverted evidence before the court, that the appellant’s manager led the police to the home of the respondents to arrest him over an alleged overdrawing of his account, but when they did not meet him at home, the manager directed and instructed them to arrest and take the wife to the police station and detain her. He referred to the evidence of PW2 detailing what transpired, amounting to invasion of her right when she was in no way involved in the alleged offence citing ACB v. Okonkwo (1997) 1 NWLR (Pt. 480) 194 at 205, where the Court of Appeal condemned a similar action.
Counsel concluded that it is obvious that the High Court was justified in holding that the appellant was liable for arresting and detaining the 2nd respondent, the wife of the 1st respondent. Counsel referred us to the uncontroverted evidence of the 1st and 2nd respondents, who were PW1 and PW2 in the court below who testified and showed how the appellant’s area manager masterminded the act and instructed the Police to arrest and detain them. He submitted that in view of the evidence, the High Court was justified in its finding relying on Okonkwo v. Ogbogu (1996) 5 NWLR (Pt.449) 420; (1996) 37 LRCN 580 at 600; Mandillas & Karaberis Ltd. v. Apena (1969) NMLR 199 and Abdullahi v. Raji (1998) 1 NWLR (Pt. 534) 481.
Counsel added that the respondents were entitled to judgment on minimal of proof which the Court can rely and act on in the absence of discrediting evidence or any in contradiction of their evidence Nwabuoku v. Ottih (1961) All NLR 489; Obimiami Bricks & Stone Nig. Ltd. v. A.C.B. Ltd. (1992) 3 NWLR (Pt. 229) 260 at 294 – 303; Audu v. Ndubuisi (1997) 3 NWLR (Pt. 493) 306 at 313, relied on.
I will now address the law applicable to an action in false imprisonment.
A claim in false imprisonment lies at the suit of the person unlawfully imprisoned against the person who causes the imprisonment – Halsburys Laws of England 3rd Edn. P 764 para. 1266 -1267; Iwunwah v. Iwunwah (1999) 13 NWLR (Pt. 635) 425. What a party who claims to have suffered false imprisonment must prove to succeed has become well established by the courts over the years. One of the well known principles is that in order to succeed in an action for false imprisonment, the plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against him Mandillas & Karaberis Ltd. v. Apena (1969) 1 NMLR 199 at 203 per Lewis, JSC (relying on Danby v. Beardsley (1880) 43 LJR 603; Okonkwo v. Ogbogu (1996) 5 NWLR (Pt. 449) 420 at 433 SC, also reported in (1996) 37 LRCN 580 at 600.
Such an action lies, not only against the party who physically does the arrest and detention, but also the person who directly and actively instigates or is instrumental to the commission of the tort of false imprisonment Onyedinma v.Nnite (1997) 3 NWLR (Pt. 493) 333 at 346 D-E; Abdullahi v. Raji (1998) 1 NWLR (Pt. 534) 481 at 492 para. D-F.
If a person orders a policeman to arrest another person, it is an imprisonment by the person ordering the imprisonment as well as by the policeman. This will ground an action of false imprisonment. See Walters v. W.H. Smith & Son Ltd. (1914) 1 KB 595. Merely making a report to the policeman who on his own responsibility takes the plaintiff into custody, is no imprisonment by the person who made the report. There is no doubt that a person who merely gives information without more, which leads to the arrest of a suspect by the Police acting within their own mandate and responsibility, cannot be liable in an action for false imprisonment.
It is against the foregoing principles, the issue in this appeal must be examined to determine the issue, whether the police, in arresting the respondents were acting on the direction of the appellants or their own initiative.
The pleadings and evidence on record must be examined against these principles, to see if the High Court was justified when it found for the respondents, that their arrest and detention were through the instigation and instrumentality of the appellant/bank and that the appellant did more than merely reporting a suspect to the police.
Let us start with the 2nd respondent, Mrs. Stella Onyima, the wife of the 1st respondent, whom the pleading and uncontroverted evidence show, was not a customer of the appellant/bank and had nothing whatsoever to do with the alleged over-draft, the subject matter of the alleged fraud against the 1st respondent. The respondents’ pleadings and evidence show that no report was made against her to the police. Yet, the branch manager of the Dadin Kowa branch of the bank, led the police to her husband’s residence and instructed her to be arrested and detained. She was arrested, marched to the police station by the police and detained as was ordered. She did not commit any offence and was not associated with any. Her only “offence” is that she is the wife of the 1st respondent against whom some allegation was being made and who was not at home when the bank manager brought the police in search of him.
As PW2, she had testified thus:
“On 20/9/95, some people came into our house and asked me about my husband. I told them that my husband was not around as he traveled to Jos. I recognized one of the people that came to our house. I recognized the Afribank Manager, Dadin Kowa Branch. When I told them that my husband travelled to Jos, the Afribank manager told them that they should arrest me. I asked them what the problem was, and they said that my husband collected their money and they were looking for him. They said they would arrest me and take me to the police station and detain me as they could not get my husband, until he arrives. They arrested me and detained me at the police station Dadin Kowa. They detained me from 9.00am till 4.00pm. When I was arrested, there were many people within the premises. Even when one man pleaded with them to leave me as it was my husband they were looking for, but the Afribank manager said they should arrest me. When they arrested me, I was kept in the police cell. Many people visited me at the station. It was when my children started crying that the police asked me to go and find someone to bail me.”
Under cross-examination, she further testified:
“When the manager came to our house, he asked me where my husband was and I said he traveled. It was the manager that told the police to arrest me and take me to the police station. At the station I was released the same day I was detained. The Police did not ask me to make any statement at the station. Immediately we reached the police station, the manager went away.”
It must be noted that the foregoing evidence was never controverted as the appellant/bank led no evidence and indeed elicited in cross-examination, the evidence which further hammered in the testimony of the 2nd respondent that there was the active involvement and instruction of the appellant’s/bank manager which caused her arrest and detention.
There is no way the appellant/bank can escape liability in the light of this proof. Not only the act of the police, but also that of the appellant/bank grounds this action against them in false imprisonment -See Walters v. W.H. Smith & Sons Ltd. (supra). In respect of the 2nd respondent, the contention for the appellant/bank that it merely made a report to the police and was not liable, is to say the least, totally unsupportable and preposterous, in the light of the overwhelming and uncontradicted evidence.
As to the 1st respondent, again, it was the bank manager, who led the police to his residence in order to arrest him on an allegation that he had overdrawn his account, beyond the overdraft sum approved for him. The uncontroverted evidence on record shows that the branch manager of the appellant bank had again personally led the policemen, armed with the banks letter of 14/9/95. They were all driven in his car by a staff of the appellant bank. They showed the respondent a copy of the letter, arrested and took him away in the said car to the police station at Dadin Kowa and detained him.
The evidence of the 1st respondent who is PW1, regarding the role of the appellant relevant to determining this issue, continues thus, at page 24 of the records:
“After I was taken to Dadin Kowa Police Station, they detained me. The following day they carried me out to go and look for other people indebted to the bank. They told me to look for money and pay. I was taken to a number of my friends and I was able to raise N152,000.00. They followed me to the bank where I lodged some into my account. As at the time I was being moved up and down in search of the money I was in company of two policemen with the 1st defendant’s driver using the 1st defendant’s car. After I paid the N152,000.00 into my account, I was not released.
Rather, I was carried to Gombe police station using the 1st defendant’s car, where I was detained for one night.
The following day I was carried to the SIIB, Police Headquarters Bauchi. At SIIB, I was detained for 3 nights. While I was there, the 1st defendant’s area manager Bauchi came and I was brought out from the cell and he started asking me, how I was going to pay their money. I told him I was going to pay the money and that before coming here, I had paid in some amount. He told me to put it in writing how I was going to pay, and I did.”
It was after the visit of the area manager of the appellant/bank, the 1st respondent was released. There can be no doubt therefore, that the appellant’s machinery was used. The staff aid vehicle. They actively directed and were instrumental in setting in motion, the acts of the police which arrested and detained the 1st respondent and indeed supervised this from the beginning to the end as the evidence is proof of the averments in this pleadings, which has not been controverted clearly shows.
As it has been shown that the imprisonment of the 1st respondent had been caused by the appellant/bank and they can be said to have actively and directly instigated it, the tort of false imprisonment would be against them. For it has been shown that there was no probable cause for even reporting the matter to the police. There is no evidence led by the appellant/bank to show what offence they suspected and on what reasonable grounds or that they were justified in the action which they took in arresting and detaining the 1st respondent what clearly looked like an attempt by the bank to recover by unlawful means, a debt, arising from an overdraft approved by the then manager of the branch for a regular, long standing bank customer. How being indebted to the bank turned into a criminal offence.
Justifying the action of the bank and its staff, this court cannot find evidence of on the records. By a customer over-drawing his account and the bank paying him the sum drawn on his cheque, all that arises is the relationship of debtor and creditor. I see a new contract between the banker and customer different from what might have been, if there is proof that this sum drawn and paid, exceeds the approved limit of overdraft previously granted the customer.
Failure to repay an overdraft can only lead to a civil claim for recovery of debt. To every banking institution, this is not a complicated legal proposition. It must be crystal clear to every banker. A.C.B. Ltd. v. Egbunike (1988) 4 NWLR (Pt. 88) 350 at 365, is a case which comes handy herein. It was there held that a customer, by overdrawing his account had only requested for an overdraft from the bank and by honouring the cheques of the customer the bank had agreed to give it to him. The learned author of Paget’s Law of Banking, Eight Edition at P. 132, while discussing the status of an overdraft has lent a hand to appreciating the nature of the relationship, created where a bank customer over-draws his account and the bank honours his cheque.
” …A banker is not obliged to let his customer overdraw unless he has agreed to do so, or, such agreement can be inferred from course of business, (Citing Brooks & Co. v. Blackburn Benefit Society (1884) 9 App. Cas 857 at 864); borrowing and lending are a matter of contract, not necessarily premeditated but possible, spontaneous, as where a customer, with out previous arrangement, draws a cheque, payment of which overdraws his account.”
(Italics mine, to underscore the meaning and legal effect of the overdrawing by a customer like the 1st respondent, of his account in his bank as was previously stated).
No matter how this matter is viewed, the over-drawing of his account simpliciter by a customer comes with no criminal liability without evidence of fraud or some other criminal act. It would seem that the appellants appreciate this, their pre-occupation being to shake the 1st respondent to recover the debt he owed them and knowing that the 2nd respondent committed no offence, they were neither rearrested nor charged to court by them.
The respondents in their evidence had named the then branch manager Mr. Samuel Buala, who approved the over-draft, and this piece of evidence and all others preferred by the respondents were not challenged nor controverted. It was not therefore as if the 1st respondent went into the cash vault of the bank and personally, helped himself to or stole the bank’s funds. No evidence of the suspected offence was proffered before the trial court.
The claim of the appellant that they merely reported a crime to the police who acted on their own is not supported by the evidence. The testimony of PW1 and PW2, unchallenged as they stand, debunk this defence and the court below did well not to place premium on that claim by the appellants.
I am able to hold in the light of the foregoing, that without giving any evidence or shaking the two respondents PW1 and PW2 under cross-examination, the evidence of the respondents remain unchallenged and the appellants have not shown any probable cause for reporting the 1st respondent to the police. On the other hand, the respondents have clearly, shown want of reasonable and probable cause on the part of the appellant as required by law, and that the appellants actively instigated, and supervised their arrest and detention without just cause or excuse. This is entirely unlawful.
The submission of the learned Counsel for the appellants that the trial High Court made no finding that the report to the police was made with full knowledge that it was false nor that it was without reasonable and probable cause is entirely incorrect. For at page 33 lines 29 – 35, the learned trial Judge made findings which are appropriate to the matter. He said:
“I am satisfied that the 1st defendant did more than merely report a crime, and that indeed, instigated the arrest and detention of the plaintiffs. I am also satisfied that the defendants knew their report to be false hence, the failure to prosecute the plaintiffs in court. As the plaintiffs testified since their release, they were neither re-arrested nor taken to court for the alleged crime.”
It remains to add that malice in the context of the tort of unlawful imprisonment, or its related tort of malicious prosecution, is not considered by the law in the sense of hatred or spite against the victim, but in the sense of the perpetrator being actuated by improper motive or “animus malus,” or in the sense of a wrongful act intentionally done. See Payin v. Aliuah (1953) 14 WACA 267 at 268 (Per Foster – Sulton P) Also Okonkwo v. Ogbogu (supra) at P. 435 (Per Ogwuegbu, JSC).
There is indeed considerable evidence, totally unchallenged, in this case, before the court below from which “animus malus” is manifest. For, in my respectful view, this is a situation where the appellants ought to have been heading for a simple civil action in debt, but rather they went for the arrest and detention of a husband, who might have been the debtor, and his wife, who was neither their debtor nor ever had any transaction with them.
There cannot have been any honest and proper motive, but rather a manifestation of spite in the action of the appellants.
The learned trial Judge was perfectly justified in drawing the conclusions which he did.
It is not in doubt that every citizen has a duty to report a suspected criminal offence to the police for investigation and apprehension and that an action for false imprisonment does not lie against a person who merely gives information, which leads the police on their own initiative to arrest a suspect – See Bank of West Africa Ltd. Odiatu (1956) L.L.R. 48. This is as correctly submitted by learned Counsel for the appellants.
For reasons quite clearly set out in this judgment upholding the findings of the learned trial Judge, this does not apply to this case and I am unable to uphold the submission that all that the area manager of the appellants did was report a suspected case of fraud involving the 1st respondent and that the discretion to arrest and detain was that of the police.
I must conclude this issue, firmly reasserting that the rule of law must remain the guide and protector of all persons in this great country, never the rule of arbitrariness and oppression of the citizen. In our court of justice, the arrest and detention, particularly that of the 2nd respondent in this matter, a housewife who was neither the customer of the bank nor involved in any transaction which might have prompted the bank to seek to arrest and detain her husband are deprecated. The police force, a respectable institution entrusted with the security of our nation and people is no “debt collector” and should never be involved in such services.
On the whole, issue No.1 is determined against the appellants Issue No.2, challenges the award of N250,000.00 as aggravated general damages jointly and severally against the Commissioner of Police, Bauchi State and the appellants in this appeal for the arrest and detention of the two respondents.
In his argument, learned Counsel for the appellants contended that it ought not to have been awarded by the court below for the reason that:-
(a) The respondents did not ask for aggravated damages in their evidence but only general damages.
(b) No evidence and proof of aggravation to warrant its award and;
(c) No finding was made regarding the conduct by appellants’ officers aggravating the condition of the respondents.
On his part, learned Council for the respondent, tried to justify the awards by the Court below, for the following reasons that:
(1) The respondents claimed N5 million for aggravated damages and led evidence in proof which was not controverted.
(2) It is misleading to say that the respondents merely asked for general damages, which were the words used in the evidence of PW1 and PW2 and failure to use the term aggravated general damages does not prejudice the respondents. Nor was the court or the appellant left in doubt as to the claim of the respondents in their pleadings- citing Eliochin (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47 at 49 para. 4 & 7, page 50 para. 16 & 17.
Counsel added that, aggravated damages are to compensate a person injured by the conduct of another which may be awarded, where the damages are at large and the conduct of the defendant such as to injure the plaintiff’s proper feeling of dignity and pride.
He referred to the ordeal of the 2nd respondent and the detention of the 1st respondent in three stations as the unchallenged evidence shows. All of the above it has been submitted are sufficient reprehensible conduct, justifying the award of aggravated damages -Citing Ogoja LGA v. Offoboche (1996) 7 NWLR (Pt. 458) 48 at 91; Odiba v. Muemue (1999) 10 NWLR (Pt. 622) 174 at 184 -190; Williams v. Daily Times (1990) 1 NWLR (Pt. 124) 1.
Learned Counsel finally submitted that the trial Judge contrary to the submission of the appellants that no finding was made as to the conduct of the bank’s officers, in a clear and succinct manner found their conduct reprehensible.
The evidence before the lower court, examined against the applicable law, shows that the learned trial Judge cannot be faulted, not only in his treatment of the evidence before him but in applying the law, with regard to the award of aggravated general damages against the appellant/bank.
I would also uphold the submission of learned Counsel for the respondents.
The law allows the award of aggravated damages when pleaded and proved. See Rookes v. Barnard (1964) AC 1129. See also Bullen & Leakes & Jaccobs Precedent of Pleading 12th Edition p.429.
In the recent case of Odiba v. Azege (1998) 9 NWLR (Pt. 566) 370 SC, the Supreme Court of Nigeria once more reiterated the object of the award of damages and the various categories of damages which may be awarded, including aggravated damages.
At page 388 of the report paras. C-E, Iguh, JSC had this to say: “In Eliochin (Nig.) Ltd. v. Mbadiwe, Obaseki, JSC, had cause to observe as follows:
“The primary object of an award of damages is to compensate the plaintiff for the harm done to him or a possible secondary object is to punish the defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which go by various names, to wit: exemplary damages, punitive damages, vindictive damages, even retributory damages and comes into play whenever the defendant’s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like.”
I entertain no doubt that the above observation of Obaseki, JSC, represents the true position of the law.” I have no doubt therefore, that where there is evidence of conduct on the part of a defendant which is arbitrary, oppressive and even unconstitutional, the court ought to award aggravated or exemplary damages. In other words, if apart from showing that the defendant has committed the tort complained of, there is evidence that in committing the tort, a defendant’s conduct has been high-handed, outrageous etc, the plaintiff would be entitled to the award of aggravated damages. A catalogue of the kind of conduct meriting such an award provided by the Supreme Court in Odiba v. Azege (supra) at pages 382, 384 and 386, is illuminating. At page 382, paragraph C, Mohammed, JSC, described the conduct as “reprehensible and oppressive.” Onu, JSC, at page 384, described it as one exhibiting “a high degree of recklessness and insensitivity to the social and legal norms of the society,” also, “a conduct sufficiently outrageous and reprehensible to drag down a heavy toll of damages” Iguh, JSC at page 386 had this to say an the conduct of the appellant complained of in that case, having regard to the findings of the two lower courts, that it was:
” … as aggravated in nature as they were reckless, vindictive, high handed and utterly oppressive.
… Gross abuse of official power … reprehensible … gross disregard of the rule of law.”
I hold the view, having regard to the sad and obvious facts of this matter earlier set out, and the unchallenged evidence believed by the court below, that everyone of the above epitaphs or descriptions properly fits the conduct of the managers of the appellant/bank responsible for the inexcusable arrest and incarceration of the respondents in the circumstances of this case, for no liability near in anyway whatsoever to any criminal offence.
Learned Counsel for the appellants has given one of his reasons for attacking the lower court’s award of aggravated damages as being that the plaintiffs gave evidence but none of them asked for aggravated damages, but merely asked for general damages.
Aggravated general damages, it is noted, was pleaded in paragraph 20(1) of the amended statement of claim. The sum of N5 million was claimed “for the unlawful arrest and detention of the plaintiffs by the defendants at the instance of the 1st defendant’s area manager between 20th and 28th September, 1995.”
Having admitted that the respondents in their evidence asked for general damages, could the appellants be suggesting that the omission of the adjective “aggravated” is fatal? I should think that would only be begging the issue, considering the pleadings and the overwhelming evidence before the Court and the state of the law.
It has become well established that an action for false imprisonment is said to be one for “injuria sine damno.” Therefore, it is not even necessary for the plaintiffs to give evidence of damage to establish his cause of action or to claim any specific amount of damages. See Kadiri Amao v. Amodu Onure (1964) NNLR 130; Okonkwo v. Ogbogu (1996) 5 NWLR (Pt. 449) 420 at 435 sc.
In this later case Ogwuegbu, JSC stated the principles thus:
“Any trespass to the person, however slight, gives a right of action to recover at any rate nominal damages. Even where there has been no physical injury, substantial damage may be awarded for the injury to the man’s dignity or for discomfort or inconvenience.
Where liberty has been interfered with damages are given to vindicate the plaintiff’s rights even though he has not suffered any pecuniary damage. It is also not necessary for the plaintiff to give evidence of damage to establish his cause of action or to claim any specific amount of damage.”
In the present case, the respondents did discharge the onus on them in an action for false imprisonment which was to show that it was the appellants who were actively instrumental to, if not entirely responsible for setting in motion the machinery for the unlawful arrest and detention. See Mandilas & Karaberis Ltd. v. Apena (supra) and Okonkwo v. Ogbogu (supra).
The manner of trespass and the conduct of the defendants are matters given in evidence; taken into account by the court which may award aggravated damages on those grounds. See Clerk and Lindsell on Torts, 13th Edn. p. 377 para. 748.
The submission of learned Counsel for the appellants may very well have arisen from a misconception of the foregoing principles. What other evidence is required in proof of aggravation than that which appears on the records?
The arrest and detention of a poor housewife, totally unconnected with the matter in issue, merely because her husband whom the appellants came to apprehend and that unlawfully, was not at home, not because she had anything to do with them. Her being marched through the streets in her neighbourhood, to the police station, her detention, requirement to secure a surety to effect her release hours later on bail, with her children left watching and weeping, are bad enough. So also is the arrest of the 1st respondent, when no offence whatsoever was committed, carting him away in the bank’s official vehicle and his detention from one police cell to another in various distant cities over a period of 8 days, in the circumstances shown in evidence. These do constitute clear evidence of conduct which are entirely unjust, illegal and in gross disregard of the rule of law.
I have carefully looked into the submission of learned Counsel for the appellants and the judgment of the Court below. The learned trial Judge in my view had carefully listened to the testimony of the two respondents, who were PW1 and PW2 and noted that these were witnesses whose evidence was not challenged or controverted or even shaken by cross examination.
Regarding this issue of aggravated damages he said:
“I accept the evidence and believe it. Their testimony was clear, corroborative and credible. It was not shaken under cross-examination. The 2nd plaintiff, an ordinary house wife, who has no banking relationship, whatsoever with the 1st defendant bank, for no cause whatsoever had her privacy, liberty and freedom of movement invaded and curtailed. I am satisfied from the evidence that her arrest and detention on 20/9/95, on the only basis that her husband was being sought for and was not found was most reprehensible, illegal, unlawful and flagrant abuse of her constitutional right to liberty. And, I so hold. I am also satisfied and so hold that the arrest and detention of the 1st plaintiff by the defendants from 21/9/95 to 29/9/95, on account of his having overdrawn his account with the 1st defendant is illegal unlawful, and an abuse of his constitutional right to liberty. For the law is clear that if a customer to a bank draws a cheque for a sum in excess of the amount standing to the credit of his current account, it is really a request that the customer has borrowed money from the bank. It does not give rise to a criminal liability, see A.C.B. Ltd. v. Egbunike (1988) 4 NWLR (Pt. 88) 350. Thus, in the instant case, the 1st defendant had the remedy of instituting a civil action, against the 1st plaintiff to recover whatever debt he is owing, and not to cause the arrest and detention of both their customer the 1st plaintiff and his wife for purely civil claim.” See Pp. 32 – 33 of the records.
The learned trial Judge further added:
“…in an action for damages for false imprisonment, all the plaintiff needs to prove is that his freedom was restrained. Ateze v Momo (1958) NRNLR 127. This the plaintiffs have proved in the present case.” (See the bottom of page 33 of the records).
I cannot see what could be clearer than the finding of the learned trial Judge.
I would determine this issue against the appellant together with its supporting grounds of appeal.
Issue 3 of the respondents and issue (d) of the appellant relate to the question of general damages awarded for libel by the court below in the sum of N50,000.00. Appellants issue (e) questioning the quantum of damages relating to N250,000.00 for aggravated damages and N50,000.00 for libel, will be addressed along with this issue.
In his brief of argument, learned Counsel for the appellants has contended that the award was made notwithstanding the fact that in the statement of claim, the full text or the offensive part of the publication was not set out contrary to the requirement in a claim in libel. S.O.N. Okafor v. Ikeanyi (1979) 3-4 SC 99.
For the respondents, it has been submitted that their pleadings in paragraph 8 on page 14 of the records are sufficient and backed with unassailable testimony, they had done all the law requires of them, citing Chief Emmanuel Ogunbadejo v. Otumba Owoyemi (1993) 1 NWLR (Pt.271) 517; (1993) 1 SCNJ 148 at 153-154.
Learned Counsel proceeded to distinguish this case from Okafor v. Ikeanyi (supra) also reported in (1979) All NLR (reprint) p.65 showing that the facts therein are different.
I must state immediately that the case of Ogunbadejo v. Owoyemi (supra) is not an authority for the issue raised herein by the appellants. The appellants raised the issue that the respondents have not properly pleaded the words complained of as required by law. It is not that proper evidence has not been led which is the issue that arose and was determined by the Supreme Court in the Ogunbadejo’s case (supra).
Learned Counsel’s effort at distinguishing Okafor v. Ikeanyi (supra) is not entirely helpful. It is without merit therefore.
What must be ascertained herein is whether the respondents properly pleaded in their statement of claim, the offensive part of the publication, that is to say, the letter exhibit A, or the part thereof complained of, as required in a claim for libel.
The learned trial Judge had in his judgment regarding the claim for libel, determined it thus:
“On the 1st plaintiff’s claim for defamation of character, learned Counsel to the 1st defendant contended that the exact words, complained of were not set out in the statement of claim. I have however observed that the plaintiffs in paragraphs 8 of their pleadings pleaded the said letter and the fact that it alleges that the 1st plaintiff had fraudulently overdrawn his account. I am satisfied that the said defamatory words were duly pleaded. In any case, there was no denial by the defendants. I am satisfied that the said letter, duly published to the police, is defamatory of the plaintiff’s character. In Gidando v. Chief Imam of Odo – Ado (1962) WNLR 122, it was held that an imputation of dishonesty to a person is a reflection on his character and therefore defamatory.”
With respect, I am firmly of the view that the learned trial Judge has not correctly answered that contention of the defendants which they now raise again in this appeal.
It has often been held by the courts that in an action for libel, the libel complained of should be set out verbatim in the statement of claim, not just its substance or effect. In Okafor v. Ikeanyi (supra), the Supreme Court stated the law. See Pp. 103 – 104 of the report. It is to be noted that this arises from the principles that such pleading must be in line with the rules of procedure which require a party to set forth in his pleadings all the material facts on which he relies. It is indeed a basic requirement of the law that a plaintiff must set out the exact words which he alleges are defamatory. See Ningi v. First Bank of Nigeria Plc (1996) 3 NWLR (Pt. 435) 220 at 235; Bank of the North v. Muri (1998) 2 NWLR (Pt. 536) 153 SC; Ojeme v. Momodu (1994) 1 NWLR (Pt. 323) 685 at 698. It is the actual words which is mandatory to set out.
The case of Collins v. Jones (1955) 1 QB 564 at 571, has been followed by our courts. Therein Denning LJ (as then was) stated that the plaintiff, “must in his pleadings set out the words with reasonable certainty.” See Okafor v. Ikeanyi (supra). In the older English case of Capital and Counties Bank v. Henty (1882) 7 Appeal Cas 741 at 771, 772 the principles and the justification for them are enunciated in the following terms:
“The law requires that every words of the libel be set out in order that, the court may judge whether they constitute a ground of action.”
In the case of libel contained in a letter, not the whole letter, needs to be set out but the libelous part of the letter. See Ningi v. First Bank (supra).
If however, there are other parts of the letter which by themselves are not libelous, but tend to qualify the libelous part in a manner that they become relevant and expound the libel, those other parts need to be set out.
It is against the foregoing principles, that the pleadings of the respondents and the letter exhibit A have been examined.
In the respondents’ pleadings, they averred as follows on paragraph 8 of the amended statement of claim:
“Sometime in September, 1995, about the 14th thereof, the 1st defendant wrote to the 1st plaintiff claiming in that letter that the 1st plaintiff had fraudulently overdrawn his account with the branch demanding in turn that the account be regularized forthwith, failing which the matter would be reported to the appropriate authority for action. The plaintiff will at the trial of this suit tender and rely on the said letter of 14th September, 1995.”
Paragraph 19(iii):
“That the publication of the letter of 14/9/95, wherein the 1st plaintiff was tagged a fraudster after which a copy of the letter was delivered to the police for action is defamatory of the plaintiff …”
In paragraph 20(ii) he claimed:
“The sum of N2,000,000… being general damages for defamation of 1st plaintiff’s character arising from the publication of the 1st defendant’s letter of 14/9/95 wherein it was alleged that the plaintiff had fraudulently overdrawn his account with the 1st defendant.”
I have examined the above averments of the respondents with the letter of 14/9/95, which bears the libel complained of. Verbatim, the letter conveys the following words after the title:
“FRAUDULENT WITHDRAWALS IN YOUR ACCOUNT NO. 35000625.”
“We have noticed with dismay that your above account with our Dadin Kowa branch, had been fraudulently overdrawn to the tune of N815,068.10 DR as against the approved limit of N40,000.00, which has already expired.
You are therefore requested to regularize the account immediately, failure of which there will be no other alternative than to report observed malpractice to the appropriate authorities.
Please be reminded of the Decree No. 18 of 1994 (Recovery of Debts and Financial Malpractices) which is applicable to this situation.
The above debit was as at close of business on 8th September 1995.
Treat this with the urgency it requires.
Yours faithfully,
AFRIBANK NIGERIA PLC.
S.S. KILAWA
AREA LEGAL OFFICER
CC: THE MANAGER, DADIN KOWA BRANCH.”
It is crystal clear from the foregoing that, the respondents have not in paragraphs 18 or 20(ii) or any other paragraph of their statement of claim, pleaded the actual or very words complained of as is mandatory in an action for libel. The law is that the plaintiff’s action for libel must fail, unless he so sets out the words verbatim.
The respondents’ claim for libel in this matter must therefore fail.
Issue No.3 is therefore determined in appellant’s favour and ground 3 of the grounds of appeal succeeds.
Let me, in a few words, further address the question raised by the appellant in his issue (e), whether the award of N300,000.00 by the court below is not excessive and disproportionate to the alleged injury. It arises from ground 4 of the grounds of appeal.
The sum of N300,000.00 is the total sum awarded for aggravated general damages N250,000.00 and damages for libel – N50,000.00.
The answer to the question has emerged from our determination of issues 2 and 3 above. It is that the N250,000.00 is not excessive. If anything, it looks inadequate having regard to the evidence before the court. The N50,000.00 for libel does not accrue, having regard to the finding that the libel complained of has not properly been pleaded and that claim fails.
The end result is that the appeal fails with respect to grounds 1, 2 and part of ground 4, and succeeds in ground 3 and part of ground 4.
The judgment of Heman, J. of the High Court of Justice, Bauchi State, delivered on 13/12/96, is affirmed with respect to the claim for false imprisonment of the respondents and the award of N250,000.00 aggravated damages. The judgment is set aside with respect to the claim for libel and the award of N50,000.00 damages therefore.
In proportion to the success or failure of the appeal, I award only N5,000.00 costs to the respondents, against the appellant/bank.
Other Citations: (2003)LCN/1394(CA)
