Apostle Jeremiah Totor V. Philip Aweh & Anor (1999)
LawGlobal-Hub Lead Judgment Report
ROWLAND, J.C.A.
The appellant as plaintiff in Suit No. W/82/92 claimed against the respondents as defendants the following relief as per paragraph 15 of his amended statement of claim:-
“The Plaintiff claims against the Defendants jointly and severally the sum of N1,000,000.00 for damages suffered when the defendants, on or about the 12th January, 1992 falsely and maliciously caused the arrest and a false imprisonment by the Nigeria Police of the Plaintiff at Arigbegha town within the jurisdiction of this Honorable Court on the false and malicious charge that the plaintiff with other persons signed for and claimed N2.8 Million belonging to Opuama Community. The State Intelligence and Investigation Bureau thoroughly investigated the information while the plaintiffs with other persons were locked up in the police cell for eight days, and found the information totally false and untrue.”
Pleadings were ordered, filed and exchanged. Thereafter, both parties amended their pleadings. The case then proceeded to trial. After reviewing the evidence adduced by both parties, the learned trial Judge, in a reserved judgment dismissed the plaintiff’s claim in its entirety. The plaintiff was dissatisfied with the decision of the court below and consequently appealed to this court on three grounds of appeal. The grounds of appeal with their particulars read:-
“(i) Error in Law
The learned trial Judge erred in law and consequently arrived at a wrong decision when he held that:
‘The failure of plaintiff to put in evidence the original or copy of the Report itself greatly weakens plaintiff’s case.’
Particulars of Error
(a) The writing of the said report or petition to the police by the defendants was not in dispute.
(b) There was evidence that the defendants reported a case of stealing of N2.8 Million belonging to Opuama community against the plaintiff and his community.
(c) Exhibit ‘A’, a letter written by the Police to the Party Manager, Western Geophysical (Ltd.) was as a result of the said report/petition by the defendants to the police.
(d) P.W. 2 – Police Inspector stated that 2nd defendant reported a case of stealing N2.8 Million by means of a petition dated December 3, 1991.
(e) 2nd defendant under cross examination testified that he reported to the police at Asaba that Arigbegba community of which plaintiff is leader had signed Damage Assessment Vouchers meant for Opuama community. He went further to state that they (defendants) reported that plaintiff and five others stole N2.8 Million, and that the report made to the police was a written one.
(ii) The learned trial Judge misdirected himself in law and on the facts and thereby came to a wrong conclusion when he held as follows:
‘Be that as it may, the instant case is not that of false imprisonment’, when the writ of summons and statement of claim clearly showed that the pith and mith of the Appellant’s case was a claim for false imprisonment.
(iii) The learned trial Judge misdirected himself in law and on the facts of the case when he held as follows:
‘From the totality of evidence before me, I find and hold that the defendants honestly believed Arigbegha community claimed and received money which in their honest belief, belonged to Opuama community.
Particulars
(a) 2nd defendant testified that he & two others were sent to the Western Geophysical Limited Operational base where they were shown the operational map/chart where Arigbegha village was separated from Opuama community and identified as having been assessed as such:
(b) There was evidence that the company’s representative told Opuama community that Arigbegha village of the Appellant had signed the Damage Assessment Vouchers in respect of Arigbegha village but not for the entire Opuama community. This piece of information was at the defendants’ disposal before the said report to the police.
(iv) The learned trial Judge erred in law when he held that there is no falsity, malice or wickedness of the defendants’ petition or report to the police.
Particulars
(a) There was evidence that the defendants’ community were told by the company that the plaintiff’s village was paid compensation in respect of their village only.
(b) 2nd P.W. under cross examination testified that the petition alleged that the money stolen belonged to Opuama community in Warri North Local Government Area and from his (2nd P.W.) findings there was no sufficient evidence to warrant the suspects (Appellant) being charged to court”.
The facts of this case are simple and straight forward. The appellant who was the plaintiff in the lower court claims that he hails from Arigbegha community in Warri North Local Government Area of Delta State while the defendants are from Opuama community in the same Local Government Area of Warri. In his amended statement of claim at pages 16- 19 of the records, the plaintiff stated that on or about January 12th, 1992, a police Inspector by name U. Akong from the State Investigation and Intelligence Bureau (S.I.I.B.) Police Headquarters, Asaba in company of a constable came to Arigbegha Community to arrest plaintiff and five others and that it was 1st and 2nd defendants who pointed out plaintiff to the police. Plaintiff was later informed by the police that the defendants had written a petition to the police alleging that the plaintiff and five others had gone to Western Geophysical (Nig.) Limited, a company prospecting for oil and seismic operations to sign and collect the sum of N2.8 Million belonging to Opuama Community. Consequently, plaintiff and five others were taken to Sapele Police Station and detained from 12th – 13th of January, 1992 and later taken to Police Headquarters and detained until January 19th, 1992. After the police’s thorough investigation, the respondents’ report was found to be incorrect, thereafter appellant and others were released from police detention. Consequently, the appellant commenced this action claiming N1,000,000.00 for damages suffered.
Both parties filed their respective briefs of argument. Based on the grounds of appeal filed, the appellant formulated the following issues for determination in this appeal:”
- Was the learned trial Judge right in holding that the failure of plaintiff to put in evidence the original or certified copy of the report to the police greatly weakens plaintiff’s case when same had been expressly admitted by the defendants both in their pleadings and evidence in court?
- Was the learned trial Judge right in holding that the plaintiff’s case is not that of false imprisonment when it was shown that the pith and mith of plaintiff’s case was a claim for false imprisonment caused by the false and malicious report by the defendants?
- Whether on the totality of the evidence led, the learned trial Judge was right in holding that there is no falsity, malice or wickedness in the defendants’ petition/report to the police?”
For their part, the respondents raised three issues for determination. They read as follows:-
“1. Whether the lower court was right in holding that failure of the appellant to tender the original petition to the police weakens the appellant’s case.
- Whether the court was right in holding that there is no absence of reasonable and probable cause for the allegation made to the police by the respondents having regard to the plethora of evidence to that effect from the record of proceedings.
- Whether merely pointing to the police as the suspect amounts to setting the law in motion”.
On issue No.1 it was submitted for the appellant that there was abundant evidence that the respondents reported a case of stealing of N2.8 Million belonging to Opuama Community against the plaintiff. It was also submitted for the appellant that P.W. 2 a Police Inspector attached to the State Investigation Intelligence Bureau, Police State Headquarters Asaba, gave evidence to the fact that the 1st defendant reported a case of stealing N2.8 Million against the plaintiff through a petition dated 7/10/91 and P.W. 2 was detailed to effect the arrest of the plaintiff and five others.
It was contended that the report/petition that N2.8 Million was stolen by the plaintiff was not in dispute. It was argued therefore that the holding of the learned trial Judge that the failure to put in evidence the report greatly weakened the plaintiff’s case led to his arrival at a wrong decision.
Issue No.1 in the respondent’s brief is one and the same thing with issue No.1 in the appellant’s brief. It was submitted for the respondents that in a claim for false and malicious report, it is fundamental that the nature of the report itself must be established and unless there was proof of the report, a court of law could not speculate on the nature.
It seems to me that the main issue in this appeal is whether a mere report of stealing made by means of a petition against the appellant and others and which report was based on reasonable and probable cause as borne by the records, and for which appellant and others were interrogated by police officers constituted false imprisonment.
It seems to me also that Exhibits ‘A’ and ‘B’ are very germane and crucial to this case. As borne by the records, I am amazed that Exhibit ‘A’ was commonly referred to as the Report made by the respondents against the appellant. This to my mind is a misconception. Exhibit ‘A’ is, in fact, a letter written by the police to the Party Manager of Western’ Geophysical Ltd. It is dated 22nd January, 1992. For ease of reference I reproduce hereunder the said letter:
“The Asst. Commissioner of Police
State Invest. & Intelligence Bureau
Asaba.
Delta State.
22nd January, 1992.
AR.3000/x/DTS/Vol.1/173
The Party Manager,
Western Geophysical (Ltd.).
Seismic Party 396,
Warri – North L.G.A.,
Warri,
Delta State.
Investigation Activities
Inspr. U. Akong and Team
Re – Case of Alleged Stealing
N2.8M Compensation Meant for
Damaged Crops within the Opuama Community
This Bureau is investigating a case of stealing N2.8m reported by Chief Philip E. Aweh ‘M’ on behalf of the Opuama Community in Warri North Local Government Area against one Esi Pita Totor and five others of Arigbegha Community within the same Local Government Area.
The above named officers are in your office on investigation and it will be highly appreciated if you could furnish them with facts, figures, documents or other assistance they may require in the course of investigation.
Your co-operation is highly solicited. please.
(Signed)
(Amos Lawore) ACP.,
Asst. Commissioner of Police,
S.I.I.B.,
ASABA.”
It is doubtless clear from the above letter that Exhibit ‘N is not the actual Report made by the respondents to the police. It is strange that the appellant did not tender the original or certified copy of the said Report through the police witness who testified at the lower court in this case.
Exhibit ‘B’ is the reply to Exhibit ‘A’ by Western Geophysical Limited. It is dated 23/1/92, and signed by Madu Esinaulo, Party Manager who is P.W. 1 in this case. Again for ease of reference I reproduce the said letter (Exhibit ‘B’):
“Western Geophysical.
Western Atlas International
23/01/92
The Asst. Commissioner of Police,
State Invest. &. Intelligence Bureau,
Police Headquarters,
Asaba.
Sir,
Ref: Ar: 3000/x/DTS/Vol.1117)
By this letter the company maintains that it does not know of any theft involving Arigbagha Community and Opuama Community all in the Warri North Local Government Area, In the case of disputed claims between the two communities, the company after assessment of damages in the area identified the area as such and awaits the resolution of the matter by the communities. Only after that can payment be made to the rightful owner.
Thanks.
(Sgd.)
Madu/Esinaulo
Party Manager
P-396”.
Western Geophysical Ltd. in Exhibit ‘B’ maintains that it did not know of any theft involving Arigbegha Community and Opuama Community. Exhibit ‘B’ by its content does not expressly state that there is no case of stealing of Opuama Community’s N2.8 million by the appellant. It must be mentioned that the act of indicating to the police a person whom one suspects of having committed an offence, is not itself sufficient to make one liable for false imprisonment, or false arrest should the police decide on their own initiative, to arrest that person. See Gbajor v. Ogunburegui (1961) All NLR. 583.
As borne by the record it was the police who arrested the appellant and released him/her. Again from the totality of the evidence adduced before the trial court as borne by the record the alleged report in the instant case was based on reasonable and probable cause. See Co-operative and Commerce Bank Ltd. v. Godwin Odogwu (1990) 3 NWLR (Pt.140) 646 at 648 (S.C.).
In Oteri v. Okorodudu & Anor. (1970) All NLR (Reprint) 199, it was held that the test must be that of a reasonable person acting without passion. He who asserts must prove. There was no evidence adduced by the appellant at the trial of this case in the lower court that the appellant suffered from torture at the hand of the police. Mere allegation of torture by the police is not just sufficient, it must be proved.
The learned trial Judge was therefore not in error when he said in part of his judgment at page 80 of the record that:-
“In the circumstances and facts of this case, the original or certified copy of the Report would have been a Pandora’s box. It would have been most revealing. It could have enabled the court to ascertain the nature of the complaint or report with particular reference to the alleged offence of stealing of N2.8 Million. The failure of plaintiff to put in evidence the original or certified copy of the Report itself greatly weakens plaintiff’s case”.
It is manifest from the record of proceedings of the lower court that Exhibit ‘A’ was not the report the respondent made to the police. As the original report was not tendered by the appellant or the police it is not possible for one to say with any degree of certainty, the enormity or gravity of the report made by the respondents against the appellant to the police,
The next issue for consideration is issue No. 2 in the appellant’s brief. It is whether or not the learned trial Judge was right in holding that plaintiff’s case is not that of false imprisonment. It was submitted for the appellant that both the evidence adduced at the trial and the statement of claim it was shown clearly that the appellant’s case was a claim for false imprisonment caused by the false and malicious report by the respondents. It was therefore argued that the learned trial Judge erred when at page 81 lines 21 – 22 of the record stated infer alia:
“In the instant case, there was no intervention search warrant. Be that as it may, the instant case is not that of false imprisonment.”
For the respondent it was submitted that the court in its judgment referred to the evidence of P.W.3 when he was recalled. P.W.3 testified that he signed D.A.V. (Damage Assessment Voucher) for the compensation due to Arigbegha Community. Reference was made to page 46 lines 8 – 9 of the records. P.W. 3 was one of the appellant’s witnesses and his evidence is in line with the evidence of D.W.2 and D.W.3. It was contended that whatever amount was collected by the appellant was honestly believed by the respondents to belong to Opuama Community as there was no independent Arigbegha Community land or camp since it is part of Opuama Community. It was submitted that the complaint of Opuama Community was not only reasonable and probable but was in fact true.
I am of the strong view that complaint of the appellant against the statement of the learned trial Judge at page 81 lines 21 – 22 of the record quoted supra is a finding of fact by the learned trial Judge. The finding is supported by the totality of the evidence placed before him and this court cannot therefore interfere. Although in paragraph 15 of the amended statement of claim the appellant claimed for false imprisonment but he did not establish before the trial court by any iota of evidence that by their action the respondents brought about his supposed false imprisonment. From the totality of the evidence before the trial court as borne by the record the learned trial Judge was not in error when he held that:
“In the instant case, there was no intervention search warrant. Be that as it may, the instant case is not that of false imprisonment.
In the case of Mandilas & Karaberis v. Apena (1969) All NLR 382 at 385; which was also a case of false imprisonment; not false arrest and detention as the case in hand. The Supreme Court held in that case that to succeed, plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against the plaintiff.
Assuming that the appellant’s case in this appeal was that of false imprisonment, he was unable to demonstrate by evidence that it was the respondents who were actively instrumental in setting the law in motion against him. That being so, the appellant’s case must fail on proof. See John Lewis & Co. Ltd. v. Times (1952) A.C. 676.
The last issue for my consideration in this appeal is issue No.3. It was submitted for the appellant that the respondents were not justified in making the report they made to the police. It was contended that the facts known to the respondents at the time of making the complaint did not constitute reasonable and probable cause.
For the respondents, it was stated that they consistently maintained in their defence that the money signed for by the appellant in respect of the operation of the company under reference on Arigbegha land or camp belongs to Opuama community. Reference was made to the evidence of D.W.1, D.W.2 and D.W.3. It was submitted that the learned trial Judge in his judgment held that the respondents had a duty to point out the suspect to the police. It was argued that there was no evidence of pressure on the police by the respondents to arrest the appellant. It is the contention of the respondents that the discretion of the police to arrest the appellant cannot be visited on the respondents.
It seems to me that the power possessed by the police to arrest without warrant, whether at common law for suspicion of felony, or under statutes for suspicion of various misdemeanours is subject to the requirement that the police shall before arrest satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. The test to be applied, with the onus of proof on a defendant seeking to justify his conduct, must be that of a reasonable person acting without passion and prejudice. The matter must be looked at objectively, and in the light of the facts known to the defendant at the time, not on subsequent facts that may come to light. See Oteri v. Okorodudu (supra). At page 82 lines 16 to 20 the learned trial Judge had this to say in part of his judgment:-
“Thus, where a person makes a report to the police concerning an alleged offence, honestly believing the same to be true, the act of identifying the suspected person at the instance of the police without more, cannot ground liability on the basis that by that act alone, the defendant set in motion the law against the plaintiff.”
I have no doubt in my mind that the above statement of the learned trial Judge is the correct position in law. The statement cannot therefore be faulted.
At page 83 lines 14 to 25 the learned trial Judge concluded his judgment thus:-
“As regards the detention of plaintiff in police cell at Sapele and Asaba respectively, I find from the totality of evidence before me that the said act was an independent act of the police in the course of their official duty. 1st and 2nd defendants were not responsible for plaintiffs detention. Indeed, 1st defendant did not accompany the police and plaintiff from Arigbegha to Sapele and Asaba respectively. He was not therefore present when plaintiff was detained in police cell. If the defendants’ petition or report lowered plaintiffs image in the eyes of reasonable members of the public including Arigbegha or Opuama Communities, and if it exposed him to public ridicule and odium, as plaintiff claims, it could be a case of libel. This is not the plaintiff’s case here”.
The above findings of fact by the learned trial Judge cannot also be faulted as it is supported by the totality of the evidence adduced before him and this court cannot therefore interfere.
In the light of the foregoing, this appeal must fail and I accordingly dismiss it. The judgment of the lower court in Suit No. W/82/92 is affirmed. The respondents are entitled to costs assessed at N2,000.00.
Other Citations: (1999)LCN/0502(CA)
