Union Bank of Nigeria Limited V. Patrick N. Ajagu (1989)
LawGlobal-Hub Lead Judgment Report
UWAIFO, J.C.A.
The plaintiff/respondent, a Chief Magistrate, brought action in the Enugu High Court against the defendants/appellants jointly and severally for the sum of N80,000.00 as general damages for false imprisonment. The action was tried by Ozobu, J.
On 25th March, 1985, in a reserved judgment, he found the case proved and awarded damages of N25,000.00 and costs of N800.00 to the respondent.
The 1st defendant bank appealed on six grounds (although the papers filed give a wrong impression that they are seven) complaining of (a) a denial of fair hearing, (b) insufficient proof of vicarious liability and (c) the judgment being against the weight of evidence. In reality only four grounds were argued. They seem, even then, to be tied sufficiently to the two issues raised for determination. Their counsel in the appellant’s brief of argument submitted two issues for determination. I think they are apt on the grounds of appeal argued and the case as presented at the trial. I need to set them out. They read:
“1. Whether the Appellant were given a fair hearing as envisaged by S.33(1) of the Constitution of the Federal Republic of Nigeria, 1979.
- If the answer to above is in the affirmative, whether from the pleadings, evidence and proceedings in the court the learned trial Judge was right in finding that the Appellant knew the 2nd defendant and that they were his employer; or whether the Respondent proved that the 2nd defendant was the Appellant’s servant.
The facts of the case as I can best summarise them are that the plaintiff having a savings account with the 1st defendant at their Garden Avenue Branch, Enugu had gone there on several occasions from January, 1975 almost on a monthly (sometimes bi-monthly) basis to lodge small savings of between N60 and N100, although on one occasion he lodged N26, on six occasions N120, and on one occasion each, N200 and N300. I have stated these details to show that the award of N25,000.00 to him for false imprisonment for a period less than 45 minutes is a jackpot.
On March 1, 1982 he went to the said bank to lodge money. He got there at 2.55 p.m. and presumably soon after he had finished. As he was about leaving the promises, he had an encounter with the 2nd defendant alleged to be a gateman of the 1st defendant (now appellant). I find it difficult to paraphrase what happened in my own words and at the same time make them convey a true impression of the incident in all its ramifications. I shall reproduce the relevant aspect of the plaintiff’s evidence as recorded. It reads:
“As I went out of the premises and on getting to the iron gate, the 2nd defendant was there letting out customers. I greeted him in Igbo language in these words ‘kaemesie’ translated – ‘Good bye – we will see again’ in English. To my surprise and amazement – the 2nd defendant retorted in Igbo language in the following words ‘Obu etu iga esikenem – adam owesie-kenea’, translated in English ‘Is that how you should thank/greet me. I do not accept that type of greeting/thanks.’ The 2nd defendant hurriedly closed the gate and locked it with a padlock. The gate was the gate through which I entered the premises and the only way out. The 2nd defendant started to beat his chest and shouting that I would sleep in the premises on that day. I pleaded with him to let me out but he refused. Some people around joined in requesting him to open the gate and allow me out, others were laughing. Some customers of the bank came out from the bank and joined us at the gate. They asked him to open the gate for them. He did open the gate for them but warned me not to go out through the gate with the people he let out. I tried to use that opportunity to go out through the gate but he quickly closed the door and locked it again with the lock. He swore that I would sleep in the premises.
At this stage, I went back to the 1st defendant office and informed the 1st defendant’s officials my ordeal with the 2nd defendant who would not allow me to leave their premises. Some of the officials and customers only laughed. I requested the officials to detail one of them to accompany me to the gate and advise the 2nd defendant to open the gate for me to go. One of the officials in English Suit wanted an assurance that the 2nd defendant was at the gate which I did. And he told me to go back to the gate and that the 2nd defendant would open the gate for me. After expressing fears I went back to the gate. As the 2nd defendant saw me coming near the gate he quickly closed the gate and locked it with the padlock. I begged him to let me go out but he did not do so. At this juncture an official of the 1st defendant wearing similar uniform as worn by the 2nd defendant shouted ‘Ikenga Power’ and in response the 2nd defendant raised his fist in acknowledgement.
As people around were begging him to open the gate for me, he boasted that if I report him to the Bank Manager that nothing would happen to him. One person around warned the 2nd defendant of the consequences of what he was doing. As I went inside the bank again to report what the 2nd defendant did, he rushed inside the Bank and shouted that I should not be allowed to leave the bank.
I requested the bank clerks to open the alternative exit for me to go out through, the alternative exit is the main door to the bank counter. As the 2nd defendant was shouting I queried if no person would call him to order. I threaten (sic) to break the gate and it was at this stage that an officer infact asked one uniformed worker to open the door for me; he did at about 3.45 p.m.”
From the narrative of the plaintiff, one is left in some doubt how credible the story could be. There was apparently no cause shown why the plaintiff could have been treated that way by a gateman. The plaintiff himself tried to proffer some reason. He said: “I infer that the reason why the 2nd defendant asked me whether that was the way I will thank him was that he expected tips from me.” Objection was taken to this piece of evidence but surprisingly the trial Judge overruled the objection. This was no evidence a witness could give but an inference for the court to draw from facts placed before it. There was no evidence that the said gateman before then asked for tips from the plaintiff or anyone else. There was no evidence that he did so at the material time. In fact the plaintiff said many people were allowed to leave the premises by the gateman. He did not say any of them gave him tips before being allowed to leave the premises.
From the totality of the evidence of Theophilus Onyeji (d.w. 1) who testified on behalf of the bank, the iron gate is not meant for customers but for the use of the staff of the bank or when money is being brought in. It is therefore usually locked. Except for the use it is made of as stated above, it may be opened for a customer on the instruction of the Manager.
The plaintiff, however, in his evidence gave the impression that he could not leave the premises except through the gate. I do not think this is entirely correct. The later part of his evidence-in-chief shows an alternative exit. I recall that evidence as follows: “I requested the bank clerks to open the alternative exit for me to go out through, the alternative exit is the main door to the counter. As the 2nd defendant was shouting I queried if no person would call him to order. I threatened to break the gate and it was at this stage that an officer in fact asked one uniformed worker to open, he door for me; he did at about 3.45 p.m.
The cross-examination seems to support this. The relevant aspect goes thus:
Q. The door through which you left the bank led into the Garden Avenue.
A. It is correct.
Q. On the bank (hall) through the back door you get into an open space (property of bank) fenced with a gate facing Coliery Avenue through which one gets out.
A. It is correct.
But the trial Judge did not differentiate between that door (i.e. the alternative exit) through which the plaintiff left and the gate in question he had insisted on passing through. The learned Judge said: “The plaintiff threatened that he would break the gate. An official in suit ordered another bank employee to open the gate for the plaintiff to leave the premises. It was done and the plaintiff left the bank at 3.45 p.m.” These facts may have helped to ascertain whether the plaintiff could be heard to complain of unlawful imprisonment.
Unfortunately, counsel for the 1st defendant/appellant, Mr. Zanda Izundu, has not canvassed any argument before this court touching on any of them, even on the basis that the judgment is against the weight of evidence.
He concerned himself exclusively with how he was not given an opportunity to address the court below, how it was not proved that the 2nd defendant was the servant of the 1st defendant and that he was wrongly thought to have appeared for the 2nd defendant.
The first issue raised for determination is whether the appellant bank were given a fair hearing under section 33(1) of the 1979 Constitution. That section reads:
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its in dependence and impartiality.”
The complaint based on the above arose from the proceedings at the address stage. Mr. Okonkwo for the respondent, after the close of the case for the defence, on the date fixed for counsel to address the court, had began his address.
He had just said a few words when the trial Judge recalled that Theophilus Onyeji gave evidence for the defence and so said that in that case it was for the defence to address the court first. He then called on the defence to begin the address. Mr. Izundu contended that Mr. Onyeji only represented the bank and that the defence did not call any evidence in support of the case. That was, of course, a very misconceived contention as I shall show later. The court then said the defence would start address and that the ruling on the submission would be delivered in the judgment. Thereafter the following is recorded:
“Mr. Izundu- I will not address the court.
Court – In this case you can go with your junior if you please.”
Mr. Okonkwo then addressed the court and judgment was reserved.
Mr. Izundu argues now that he was not given the opportunity to address the court and that he was ordered out of the court. Consequently, he says, the appellant bank were “effectively deprived opportunity to hear the summing up of the case being made against them, the effect being that the Appellant were partly tried in their absence, and without opportunity to fully present their case and defend the Respondent’s action.” I can say this quite unequivocally that the facts and the law do not support this complaint. There was no question of denial of fair hearing and I cannot accept, from what the trial Judge said in reaction to Mr. Izundu’s contemptible attitude that he would not address the court, that he was ordered out of the court. In the circumstances of this case, Mr. Izundu on behalf of the appellant bank waived their right to address the court and made it plainly known. I do not know what he expected the court to do at that stage. His blatant refusal to address the court, which he defiantly communicated straight to the court, after the trial Judge said he should begin, was a challenge to the dignity of the court and to the confidence of the public in the administration of justice. It was capable of bringing ridicule and contempt to the Court and eroding its authority to conduct its own proceedings. That is most unacceptable and cannot in any way be countenanced.
The procedure upon which learned counsel for the appellant founded his right to address in the order he wanted it is contained in Order 42 Rules 4 to 9 of the High Court Rules (Cap.61) Laws of Eastern Nigeria, 1963. The said rules provide:
“4. When the party beginning has concluded his evidence, he shall ask the other party if he intends to call evidence (in which term is included evidence taken by affidavit or deposition, or under commission, and documentary evidence not already read or taken as read); and if answered in the negative he shall be entitled to sum up the evidence already given, and comment thereon; but if answered in the affirmative he shall wait for his general reply.
- When the party beginning has concluded his case, the other party shall be at liberty to state his case and to call evidence, and to sum up and comment thereon.
- If no evidence is called or read by the latter party, the party beginning shall have no right to reply, unless he has been prevented from summing up his case by the statement of the other party of his intention to call evidence.
- The case on both sides shall then be considered closed.
- If the party opposed to the party beginning calls or reads evidence, the party beginning shall be at liberty to reply generally on the whole case, or he may, by leave of the court, call fresh evidence in reply to the evidence given on the other side, on points material to the determination of the issues, or any of them, but not on collateral matters.
- Where evidence in reply is tendered and allowed to be given, the party against whom the same has been adduced shall be at liberty to address the court, and the party beginning shall be entitled to the general reply.”
The question is whether the appellant called evidence. They certainly did so through the oral evidence of d. w.1. Evidence could, of course, be oral or documentary: see sections 75-98 of the Evidence Act. It follows therefore that reading rules 4 and 9 above together, or indeed if rule 8 standing on its own is considered, there can be no doubt in the circumstances of this case that the appellant had to begin address. In Automatic Telephone and Electric Co. Limited v. Federal Military Government (1969) 1 All N.L.R. 43, the Supreme Court was invited by counsel for the appellant to interpret substantially identical rules, in particular rules 6 and 8, by saying that such evidence called must be after the party beginning has concluded his evidence. In that particular case the evidence which was regarded called by the appellant was a document they put in cross-examination of a witness for the plaintiff/respondent although the appellant had resisted the implication that they had thereby called evidence and so would have to begin address. In rejecting the appellant’s submission as to the meaning of the said rules 6 and 8, the Supreme Court (per Lewis, J.S.C.) said at page 48:
“We do not think it necessary to import that limited meaning to the general words of rules 6 and 8 which we think can be read in their ordinary and natural meaning standing in their own right, that is to say as dealing with evidence called or read at any time whether before the party beginning has concluded his evidence or afterwards as the case may be. That being so it means that if the ‘other party’ to the party beginning at any time reads documents or they are taken as read by consent then by virtue of rule 8 the party beginning has the right to the final reply irrespective of any earlier right that he may have to sum up by virtue of rule 4 which he may not have exercised.” (Lewis, J.S.C’s emphasis).
A procedure which is in pari materia with that stated above as to the order of address was considered by the Supreme Court in Obodo v. Olomu (1987) 3 N.W.L.R. (Pt.59) 111. Karibi-Whyte, J.S.C., said at pages 130- D 131:
“It is important to observe here that the address of counsel at the conclusion of evidence is an important, even if dispensable part of the proceedings and the right if exercised an integral part of the hearing of a lis. It is for the proper administration of justice that the party on whom the burden to establish his claim lies to address last unless where the other party called no evidence.
Where the other party calls evidence, the party beginning will be entitled to reply to the address of counsel to such party.”
This case also decides that a party entitled to address the court may waive that right so long it is clear that he has so waived his right: see page 121 per Belgore, J.S.C.
Learned counsel for the appellant in his brief of argument has contended inter alia that:
“The failure of the learned Judge to determine and rule on the respective rights of the parties as to the order of address unduly placed the Appellant open to suffer irreparable injury in the trial.
By deciding to deliver his ruling on the Appellant’s submission in the judgment the learned trial Judge not only prejudged the issue without any consideration but he also effectively blocked his chances of giving a fair decision on the right of the Appellant to a general reply to the Respondent’s address… The learned Judge should have ruled on the said submission before further proceeding to hear the addresses of counsel to the parties.”
I think the above is a misconception. First, the trial Judge should be understood to have decided (rightly or wrongly) after hearing appellant’s counsels submission that the defence should begin address, and that the reasons for the decision would be contained in the judgment. Second, if that decision was wrong and injurious to the appellant, he could take that up on appeal and so whatever “irreparable injury” the appellant suffered thereby at the trial could then be decided. It is hardly a matter which would immediately be taken up in an interlocutory appeal even if a considered ruling had been given which was seen to be wrong by appellant’s counsel. But he has not shown how he suffered injury except through his own act of refusing to address.
Third, from what I have said earlier, the trial Judge was right in his stand as to the order of address. The complaint of appellant has no import. I therefore hold in respect of the first issue for determination that the appellant were not denied a fair hearing.
The second issue for determination depends on the facts and the inference of law to be drawn from them. I shall deal with it as briefly as possible.
The respondent said the 2nd defendant was the gateman at the premises of the appellant who behaved to him the way he was described to have done.
Three bailiffs, Mellitus Ugwu Onyeke (p.w.2), Dickson Obiora Anioke (p.w.3) and Patrick Ugwu Ifeka (p.w.4) said in evidence that they separately served court processes on the 2nd defendant at the premises of the appellant after he was pointed out by the respondent and after they asked him if he was Mr. Ibe alias Ikenga and he confirmed. At that stage, the respondent had tendered evidence which the appellant had a duty to rebut since their defence is that there was no person called Mr. Ibe employed by them.
The witness called by the appellant said in evidence: “I know all the entire staff of the bank. I can name them all; we have a list of our staff. The second defendant is not in our list.” That staff list was at least necessary evidence for the purpose of meeting the evidence of the respondent that one Mr. Ibe was the gateman with whom he had an encounter. If the staff, list for that material period had been tendered it would have had the effect of shifting the burden back to the respondent or at any rate could have credibly controverted him. But it was not tendered.
Appellant’s counsel contends that because the trial Judge said the evidence of the bailiffs was not challenged by the failure of the appellant to produce the staff list referred to in evidence by their witness, he had placed the burden of proof on the appellant when it should be on the respondent. I think that contention is untenable.
In civil cases the burden of proof of particular matters or issues generally shifts from the plaintiff to the defendant and vice versa. In Felix O. Osawaru v. Simeon O. Ezeiruka (1978) 6 & 7 S.C. 135 at 145-146, Aniagolu, J.S.C. explained this, and I need to quote him in extenso. He said:
“In civil cases while the burden of proof in the sense of establishing the case, initially lies on the plaintiff ….. the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendant and vice versa as the case progresses.
The general rule which is enshrined in the maxim Ei qui affirmat non ei qui negat incumbit probatio has been provided for in Sections 124 to 136 of the Evidence Act Cap.62. In particular, sub-section 2 of Section 136 has provided that:
‘If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.
The respondent in the present appeal had testified that the appellant paid his rents up to August 1970 and no more. Towards the end of his evidence-in-chief he averred:
‘The defendant now owes the rents for September 1970 to March 1973 totalling N2,964.00. He owes me N80.00 for December, 1973 to April 1974 totalling N3,344.00.’
With the above evidence before the court the burden had shifted to the appellant to satisfy the court that he had paid and he could discharge his burden either by producing the teller with which he paid the money into the account of the respondent in the Standard Bank (Nigeria) Limited in accordance with Clause 2(a) of the agreement, Exhibit 1, or failing that, by calling the Bank Officers to produce the statement of account of the respondent in the Bank to show by entries therein that he had paid, or by producing a receipt or receipts given to him by the respondent if he paid direct to the respondent, or by adducing any other admissible evidence, oral or documentary, establishing that he had paid the respondent. We do not think that the appellant had discharged the burden which had shifted to him upon the respondent’s testimony that he had not checked his bank account to know if the appellant had paid the rents into it. It was the appellant’s duty to adduce positive evidence of payment in the face of the respondent’s positive assertion that he had not paid.”
The law therefore is that if a party who has the initial burden to lead relevant evidence on a particular issue does so prima facie, he throws the burden of rebutting that evidence upon the other party. Whether the burden has shifted will depend upon and must be related to the issues raised on the pleadings. The burden of proof is certainly not static: it is divided between the parties one way or another, and the trial Judge should be able to decide when it has shifted. Once it shifts, the other party ought to lead credible evidence to tilt the scale once more if by not doing so he stands the risk of having judgment given against him. In Kate Enterprises Ltd. v. Daewoo Nigeria Limited (1985) 2 N.W.L.R. (Pt.5) 116, the Supreme Court cited with approval the case of Abrath v. North Eastern Railway Co. (1883) 11 Q.B.D. 440 on the shifting nature of the burden of proof in civil cases. There at page 456 Bowen, L.J., instructively stated it like this:
“Whenever litigation exists, somebody must go on with it; the plaintiff is the first to begin; if he does nothing, he fails; if he makes a prima facie case, and nothing is done to answer it, the defendant fails. The test, therefore, as to the burden of proof or onus of proof, whichever term is used, is simply this: to ask oneself which party will be successful if no evidence is given, or if no more evidence is given than has been given at a particular point of the case, for it is obvious that as the controversy involved in the litigation travels on, the parties from moment to moment may reach points at which the onus of proof shifts, and at which the tribunal will have to say that if the case stops there, it must be decided in a particular manner. The test being such as I have stated, it is not a burden that goes on for ever resting on the shoulders of the person upon whom it is first cast. As soon as he brings evidence which, until it is answered, rebuts the evidence against which he is contending, then the balance descends on the other side, and the burden rolls over until again there is evidence which once more turns the scale. That being so, the question of onus of proof is only a rule for deciding on whom the obligation of going further, if he wishes to win rests.”
In the present case, there can be no support for the contention of the appellant that they had no burden on the question of proof or disproof as to whether or not the 2nd defendant was their servant. Their witness introduced the existence of a comprehensive staff list. That might have been produced, if admissible, as credible evidence in rebuttal of the evidence adduced by the plaintiff on the issue, It was not produced, The trial Judge held that the provision under section 148(d) of the Evidence Act applied, which is that the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it: see Tewogbade v. Akande (1968) N.M.L.R. 404.
Again, as the evidence stands, it was not disputed that there was a gateman on duty on that occasion. If it was not Mr. Ibe, the appellant could quite easily have called the person who to their knowledge manned the gate to testify and such person might also rebut the evidence of the existence of a colleague known as Mr. Ibe. They did not as well do this. They thereby failed to discharge the onus thus cast on them on that issue by the evidence of the other party, the respondent. I think therefore in answer to the second issue raised for determination, there was sufficient evidence to justify the finding of the trial Judge that the 2nd defendant was the servant of the appellant.
A servant may be defined as any person employed by another to do work for him on the terms that he, the servant, is to be subject to the control and directions of his employer in respect of the manner in which his work is to be done: See Hewitt v. Bonvin (1940) 1 KB, 188 at 191 per Mackinnon, LJ.
In every case of vicarious liability the first question is to see whether the servant was liable. If the answer is yes, the second question is to see whether the employer must shoulder the servant’s liability: see Young v, Edward Box & Co. (1951) 1 T.LR. 789 at 793 per Denning, L.J.
A master is jointly and severally liable for any tort committed by his servant while acting in the course of his employment. The wrongful act of a servant is deemed to be done in the course of his employment if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master: see Poland v. Parr (John) & Sons (1927) 1 K.B. 236 at 240. The present appellant’s case falls under the second category.
The 2nd defendant did the manning of the gate for which he was employed by the appellant in a wrongful and unauthorised mode against the liberty of the respondent. Hence in Kuchenmeister v. Home Office (1958) 1 All E.R. 485, it was held false imprisonment for immigration officers to prevent an alien from proceeding from an airport to an aircraft and from embarking on it against the limit of confinement which the Aliens Order, 1953 authorised them to prescribe. The trial Judge found in the present case that the 2nd defendant acted, though wrongfully, in the course of his employment for the appellant and that the appellant was jointly and severally liable for what the 2nd defendant did. That follows as a consequence of the law of vicarious liability: See Ayodele James v. Mid-Molars Nig. Co. Limited (1978) 11 & 12 S.C. 31.
The appeal accordingly fails and it is dismissed with costs of N500.00 to the respondent in this court. I cannot end this judgment without expressing my disquiet as to the amount of N25,000.00 general damages awarded by the trial Judge for false imprisonment which lasted for about 45 minutes in an open air and space at the premises of a bank. It is even more amazing that counsel for the appellant did not appeal against such an award. He took the risk of canvassing issues which could in no way help his clients. An appellate court cannot interfere with the quantum of damages if it is not challenged. It cannot even be done upon the omnibus ground that the judgment is against the weight of evidence: see Sapara v. University College Hospital Board (1988) 4 N.W.L.R. (Pt.86) 58 S.C. It is when there is a complaint against an award of general damages and the appellate court finds that the trial court acted on a wrong principle of law or that the damages awarded are excessively high or low that it will interfere with the award: see West African Shipping Agency (Nigeria) Limited v. Kala (1978) 3 S.C. 21; Ediagbonya v. Dumez (Nigeria) Ltd. (1986) 3 N.W.L.R. (Pt.31) 53 S.C., Saleh Boneh (Nigeria) Limited v. Ayodele (1989) 1 N.W.L.R. (Pt.99) 549 S.C. The embarrassment arising from this case as to the scandalous award made must seem obvious having regard to the occupation of the respondent. But I hope it will be appreciated that, like any other person, he can only legally be deprived of any part of it. Nothing was done by the appellant’s counsel that has called for that and the award must, therefore, stand.
Other Citations: (1989) LCN/0062(CA)
