Ken Mclaren & Ors V. James Lloyd Jennings (2002)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

The plaintiff, per a writ of summons dated 2nd August, 1996, taken out of Kano State High Court of Justice, is claiming against the defendants, jointly and severally, the sum of N5,000,000 damages for wrongful arrest and unlawful detention in Kano and Abuja.

Parties duly filed and exchanged pleadings. On 1st day of September, 1997, the defendants filed a motion on notice challenging the competence of the court below to hear the action on ground of territorial jurisdiction. Learned trial Judge, after hearing both parties, in a reserved and considered ruling refused the application and held that Kano State High Court was seised of the matter.

The defendants were unhappy with the decision and being aggrieved appealed to this court. Briefs of argument were filed and exchanged. In the respective briefs, only one issue was identified as calling for determination. The two formulations, in my respectful opinion are very similar, if not identical. In the appellant’s brief the issue reads as follows:-

Whether the High Court of Kano State has the jurisdiction to entertain and adjudicate over the plaintiff’s/respondent’s claim against the defendants/appellants who reside in Abuja outside the jurisdiction of the lower court and have objected to the lower court’s jurisdiction.”

On the other hand the respondent framed the issue as follows:

“Whether the plaintiff/respondent’s statement of claim in this suit dated the 2nd August, 1996 discloses a cause of action against the defendants/appellants for false detention or imprisonment in Kano and whether in the circumstances High Court of Justice, Kano State cannot assume or exercise jurisdiction over the same.

Since I am of the view that the issues framed in the respective briefs are identical, the interlocutory appeal can conveniently be argued, considered and determined on either formulations. But the respondent’s identification of issue is more to the point and is for that reason preferred.

At the hearing of the interlocutory appeal, learned counsel for both sides adopted and relied on their respective briefs. In addition oral submissions were made. All would be taken into consideration in the determination of the appeal.

I agree with learned counsel for appellants that the position of the law on the determination of jurisdiction of a court is fairly well settled. Learned counsel for appellants, in the appellant’s brief, submitted that the jurisdiction of a court is determined by recourse to the claim before the court. He however stated that a statement of claim supercedes the writ of summons with the result that if a relief is claimed on the writ but not claimed in the statement of claim, it shall be deemed to have been abandoned. He argued further that, a claim endorsed in a statement of claim which is not in the writ subsists. He in this regard cited the case of Eze v. George (1993) 2 NWLR (Pt. 273) 86, 97.

Learned counsel further argued that respondent in the writ of summons complained about detention in both Kano and Abuja and claimed damages for unlawful arrest and detention but in the statement of claim, which superceded the writ of summons, the respondent at paragraph 20 thereof claimed damages for detention simpliciter. Learned counsel contended that arrest was thus abandoned. Learned counsel therefore further contended that the claim before the court is determined with reference to the relief sought by the plaintiff as formulated in the statement of claim: Okubule v. Oyagbola (1990) 4 NWLR (Pt. 147) 723, 744; A.-G., Anambra State v. A.-G., Federation (1993) 6 NWLR (Pt. 302) 692, 742.

Learned counsel then submitted that the claim for wrongful arrest having been abandoned, the relief sought by the respondent was N5,000,000.00 damages for false and unlawful detention at the Nicon-Noga Hilton Hotel, Abuja. Learned counsel contended that the basis of the cause of action as pleaded in paragraphs 16, 17 and 18 of the statement of claim that the respondent was deprived of his libe11yand kept in custody in Abuja.

Learned counsel submitted that the arrest in Kano did not give the respondent a cause of action for which he could be compensated because second and third appellants did no more than report to the police and that it was in the exercise of the police duties under section 4 of the Police Act that he was arrested- Ezeadukwa v.Maduka (1997) 8 NWLR (Pt. 518) 635, 667.

Learned counsel finally submitted that the relief claimed by the respondent is not in respect of any detention in Kano but for damages suffered as a result of his having been detained in the Nicon-Noga Hilton Hotel, Abuja as his arrest in Kano did not give rise to any actionable wrong, as the second appellant did no more than lodge a report to the police who exercised their power of arrest.

He backed up his submission with the cases – Gbajor v. Ogunburegui (1961) 1 All NLR 853 and Adefunmilayo v. Oduntan (1958) WNLR 31.

On the other hand, learned counsel for respondent, in the respondent’s brief, after the respondent’s claim in the writ of summons as well as statement of claim had been read, contended that the position taken by the appellants with regard to the unlawful detention is opposed to the respondent’s claim in either his writ of summons or statement of claim.

I propose to deal with the issue of the arrest of the respondent in Kano. I have carefully examined the submissions of the learned counsel for appellants and respectfully do not think that their contention to the effect that the respondent’s arrest was not wrongful and unlawful does not avail them. It is fallacious to contend that the arrest is severable from the detention and did not give rise to an actionable wrong. The second defendant did not merely lodge a report to the police and the latter exercised its power of arrest. The defendants supplied the vehicle to take the police to Kano to demand and recover a debt and not for purpose of investigating an offence.

The police, to my mind, had no discretion in the matter.

This arrest, in the circumstance, was wrongful. It was wrongful on the appellants’ showing. It is apt to narrate relevant portion of the circumstances leading to this appeal. Nicon-Noga Hilton Hotels Limited awarded, on 11th April, 1995, a contract of supply of hotel equipment to a company, Sotra Nigeria Limited. Respondent is the managing director of the company which received an advanced payment of N1,628,428.27. Due to some reasons, the company could not supply those goods within the agreed time. The appellants demanded the refund of the deposit. It was pursuance of this demand that the respondent was arrested in Kano and brought for remand in Nicon-Noga Hilton Hotel, Abuja until the said sum of money was refunded.

Firstly, section 4 of the Police Act, Cap. 359 of the Laws of the Federation, 1990, upon which appellants predicated their case does not avail the appellants. Section 4 relied upon by the appellant’s deals with general duties of police and reads as follows:-

4. The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or without Nigeria as may be required by them by, or under the authority of, this or any other Act.

I have scrutinized the provisions of the section and am unable to see a provision providing for or empowering police to enforce contract or collect common debts. The appellants and the policemen they pressed into duty were not in Kano to prevent or detect a crime nor was the respondent an offender. It is equally not the case of the appellant that there was a break down of law and order, the preservation of which took them to Kano. The court has also not been told of the laws or regulations the group went to enforce in Kano. In short, the appellants and the policemen they took to Kano were there to collect debt which is not one of the several duties assigned to the Police under the provisions of the Police Act to which the court was directed and the court has not been able to find another provision of the Act empowering or constituting the Nigeria Police Force to one of a debt or rent collector. It follows that the policemen who accompanied the appellants to Kano and assisted them in the arrest of the respondent were on the frolics of their own. The arrest was not authorized by the Act and was consequently unlawful, wrongful and illegal and cannot afford the appellants a shield.

The cases of Gbajor v. Ogunburegui (supra) and Adefunmilayo v. Oduntan (supra) heavily relied upon in the appellants’ brief do not assist nor promote the appellants’ cause. In those cases, crime or felony were committed and when the victims or complainant reported to the police who in exercise of their power under the Police Act, apprehended the persons suspected. In the instant appeal, no felony had been alleged not to talk of being committed. It is purely a matter of a breach of a contract of supply by a limited liability company.

Our jurisprudence is replete with practice and procedure for enforcing contract or recovery of debt. In the circumstance of the instant appeal, there is no allegation or imputation of crime against the respondent nor the company of which he is a managing director. There is therefore no basis for his arrest which is not in dispute. The appellants cannot derive solace from the wrongful and unlawful act of the police officers with whom they were acting in complicity. Appellants, therefore, have no any lawful excuse for acting in the manner they did. See Adefunmilayo v. Oduntan (supra) where Ademola, C.J. Western Region of Nigeria quoted with approval the dictum of Campbell, L.J. in Chiver v. Savage (1855) L.J. QB 85 where it was stated that:-

“That if the evidence show no more than that the defendant, upon a suspicion of felony, made a complaint

and charge to the police upon which they themselves acted and took plaintiff into custody, an action for false imprisonment would not have been maintained, but where the defendant had expressly directed the police to take the plaintiff into custody, this is imprisonment by the plaintiff and an action for false imprisonment would lie.”

The appellants laid no charge of felony against the respondent but they expressly directed that the respondent be taken into custody for owing their principal a sum of money. The arrest of the respondent in Kano is inexcusable as the appellants are unable to bring themselves within the protection of the law which have just been enunciated.

The opinion that the exercise of the police power was not in furtherance of the provisions of the Police Act is further strengthened by the appellants’ admission that rather than detaining or placing the respondent in the police custody, he was placed in the hotel’s custody. If the police officers who arrested the respondent in Kano and apparently escorted him to Abuja were on a lawful exercise of police power he ought to have been taken to the police station where the fact of the arrest would have been registered along with the particular of the arrest before placing him in custody or granting him a police bail. Rather he was left with the management of the Nicon-Noga Hilton Hotels Limited. Learned counsel for appellants who insisted that the exercise was lawful is yet to direct the court to the enactment or legislation which sanctioned the course of action taken that day. I am not persuaded that the arrest of the respondent in Kano was lawful. I can only be persuaded if the law or regulation designating Nicon-Noga Hotel, Abuja as a police or prison cell is produced.

I agree with the learned counsel for the appellants that the position of the law on the determination of jurisdiction of a court is more than purely well settled. It is on the face of the plaintiff’s writ of summons or particular of claim, if any, or statement of claim that the plaintiff offers material to the court to decide whether the court has jurisdiction or not. It is upon the statement of claim or particulars of claim that dates of cause of action could be garnered to decide, for example, whether an action is time barred or not, or to determine whether due to one privilege or the other a party ought to stand a trial or not; whether a subject matter is within the competence of a court or determine whether jurisdiction has been ousted by statutes.

Yalaju-Amaye v. A.R.E.C. Ltd. (1990) 4 NWLR (Pt. 145) 422, 441; Amawo & Another v. A.-G., North Central State & Others (1973) NNLR 118, (1973) 6 S.C. 47.

In this connection, the writ of summons taken out on behalf of the plaintiff who is respondent herein has been superceded by the statement of claim and therefore no longer relevant. The relief sought by the respondent in the statement of claim reads as follows:-

20. WHEREOF the plaintiff claims against the defendants jointly and severally the sum of N5 million (five million Naira only) as damages for false detention and the loss he suffered as a result of his unlawful detention by the defendants.

At this juncture, it is apt and necessary to read the case presented by the respondent in his statement of claim particularly paragraphs 8 14 which read as follows:-

8. On or about the 1st day of April, 1996, the 2nd and 3rd defendants on the instructions and directives of the 1st defendant came to Kano accosted the plaintiff and asked for an immediate repayment of the sum of one million six hundred and twenty-eight thousand, four hundred and sixty-eight Naira twenty seven kobo only (N1,628,468.27k) which Sotra Nigeria Limited was owing Nicon-Noga Hilton Hotels Limited not by the plaintiff personally.
9. The plaintiff drew the attention of the 2nd and 3rd defendants to the fact that the said indebtedness was not one for which he was personally responsible but is one on the account of Sotra Nigeria Limited, the company of which he was managing director.
10. The 2nd and 3rd defendants refused this plea and informed the plaintiff that in the event he did not produce the said sum of money within one hour they would cause his arrest to be effected and he would have to be taken away to Abuja by the Police where he would be made to face criminal charges in respect of the said sum of money.
11. The 2nd and 3rd defendants maliciously and without reasonable and probable cause laid a false information against the plaintiff and caused the plaintiff to be arrested by a police officer in Kano, who then intimated the plaintiff that he had to be taken to Abuja immediately.
12. The plaintiff was immediately deprived of his liberty and was sandwiched between two hefty looking men in a station wagon car which the 2nd and 3rd defendants brought along with them in order to cause the plaintiff to be taken to Abuja in their custody.
13. The plaintiff avers that from the time of his arrest at about 4.45p.m. on the 1st day of April, 1996, the 2nd and 3rd defendants only allowed the plaintiff to call at his bank to see if the bank manager would loan the money demanded by the defendants and to hold discussions with his wife outside his premises at Bompai Quarters, Kano, as he was deprived of the opportunity of entering the premises.
14. The defendants took the plaintiff to Abuja by force and compelled him to be lodged in Nicon-Noga Hilton Hotels, Abuja that night, threatening that unless the payment of the said sum of money was effected by the plaintiff immediately he would be locked up along with hardened criminals in a police cell…”

(Italics mille)

The averments set out sustain the respondent’s claim, which is for wrongful arrest and unlawful detention, which commenced with the respondent’s arrest at 4.45p.m. on the 1st April, 1996 and terminated at his release on the 2nd April, 1996 at about 7.30p.m.

These averments in my respectful view if established clearly sustain a claim for detention from Kano through Kaduna and even Niger States to Abuja Capital Territory. It was a continuous act. There was no break in it. The appellants would, therefore, not be entitled to compartmentalize them into Kano and Abuja faces. The appellants are not denying the arrest of the respondent in Kano on 1st April, 1996 at about 4.45p.m. at their instance and forcing him into their own private car taken to Kano purposely to carry the respondent to Abuja, where he was placed in their hotel custody. The appellants are, however, denying responsibility for the initial arrest which is blamed or placed squarely at the doors of the police. The respondent demonstrated in his pleadings that he suffered deprivation of liberty from the point of the alleged arrest when he was sandwiched between two hefty men, forced to his bank and denied opportunity of consulting with his wife in the privacy of his home. The discussions he had with his bank and his wife were under the eagle or watchful eyes of the appellants.

The arrest of the respondent by the police officer would only avail the appellants if it were lawful or proper. If it were upon evidence of suspicion of felony, on information or charge laid before the police upon which he acted and took the respondent into custody on his own judgment. In the instant case, no charge nor complaint was made to the police and the purported arrest by the police officer was a mere ruse contrived by the appellants to give a toga of legality to their conduct. Since the respondent was unlawfully put into custody in Kano the appellants’ took a risk upon themselves now that the respondent has amply demonstrated his innocence. The appellant’s conduct in Kano is not excused. It follows, therefore, that there is restraint of liberty of the respondent right from the point of his arrest up to and including the time of his release on 2nd April, 1996.

I agree with the submission of the learned counsel for appellants that the territorial jurisdiction or area of authority of the Kano State High Court of Justice is restricted and confined to the area in the second column of part 1 of the first schedule to the Constitution of the Federal Republic of Nigeria 1979. Consequently, the competence of the court to adjudicate does not extend beyond the territorial boundaries of the State and, therefore, does not cover defendants residing outside the State in respect of causes of action arising outside the State. But the initial arrest and detention of respondent which are not only wrongful but also unlawful took place in Kano. All the denial or restraint of personal liberty of respondent in Kano, Kaduna and Niger States could be investigated by the various High Courts through which the respondent was taken notwithstanding that each State High Court including the High Court of Abuja Capital Territory is given exclusive jurisdiction over the area of the State. Since the cause of action was re-enacted in each of the States in the course of the journey from Kano to Abuja, each court is entitled to investigate the matter. The respondent is not expected to institute his claim against the appellants in each of the State or jurisdiction through which he was taken to reach Abuja.

For the view I have stated, I think, the answer to the only question asking for determination in this appeal is positive. All the grounds of appeal related to the issue fail and are dismissed. The appeal equally fails and it is dismissed. I affirm the decision of the learned trial Judge with costs assessed at N5,000.00 to the respondent.

In parenthesis, I hope the Inspector-General of Police is listening and would cause an investigation to be conducted into the brazen act of misconduct and gross indiscipline by his men in uniform. We thank God the matter did not go beyond this. One shudders to ponder the extent of embarrassment it would have earned the police and the hotel if something untowards had happened to the respondent while in the hotel’s custody. It is equally gradually becoming fashionable for counsel instructed to recover debts and rents to resort to use of members of the armed forces particularly the police. Resorting to force rather than rule of law is fastly gaining currency. This does not augur well for the profession. It is a wind of change that blows no one any good. If the members of the profession decide to throw to the winds the ideals of rule of law then, in no distant future, stand to reap whirlwind. The inevitable consequence is that the clients would directly deal with those who possess the means of coercion which invariably may be cheaper than going through a counsel whose ‘professional’ fees may jack up the cost of recovering the debt or rent.

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Other Citations: (2002)LCN/1287(CA)