Wuraola Kuku V. Fatumo Olushoga (1962)

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ONYEAMA, Ag., F.J

The Appellant who was the plaintiff in the court below brought an action in the High Court of the Western Region claiming £600 as damages for slander and false imprisonment.

The appellant’s case, put shortly, was that the respondent who was the defendant had made a false report to the police in Ijebu Ode charging her with being in possession of a gold cord chain which had been stolen from the respondent’s house some time before. As a result of this report the police obtained a search warrant on the strength of which the appellant’s house was searched.

During the search it became necessary to send somebody to fetch the appellant who was in her shop some distance from her house.

When the police officer in charge of the search sent someone to fetch the appellant the respondent spoke the words complained which were to the effect that if a policeman did not accompany the messenger who was going to fetch the appellant the latter would get rid of the gold cord chain if she had it on. The respondent was also supposed to have said that her necklace was in the appellant’s room.

A cord chain was found with other trinkets in a container which the appellant later produced from her room during the search. The respondent claimed the cord chain as her own. The police thereupon took the appellant to the police station where the claims of the appellant and respondent to ownership of the cord chain were investigated.

This investigation was not concluded and the police released the appellant on bail and appointed a date on which the appellant and respondent were to appear before the superintendent of police for the matter to be further examined.

On the appointed day the parties appeared before the superintendent of police who directed that the gold chain be returned to the appellant and that the case file be closed.

The appellant thereafter commenced her suit for false imprisonment and slander, in which she claimed damages against the respondent. The parties were first before the High Court on the 6th of October, 1953. The proceedings continued in one form or another for nearly seven years, that is, until the 22nd of July, 1960, when it was dismissed.

There were five grounds of appeal filed but none of them raises any point of importance and all of them raise inconsequential issues of fact and trifling oversights.

The appellant complained in her fast ground of appeal that the learned trial judge was in error when he held that the plaintiff was a member of the Olusoga family to which the deceased husband of the defendant belonged since there was no evidence to warrant this finding; this was so but this fact was not in issue and had no bearing whatever on the eventual outcome.

I think that the learned trial judge rightly directed himself on the essential issue of fact. After carefully considering the case he found himself unable to accept the evidence called by the plaintiff that the substance of the words complained of was spoken by the defendant.

As the plaintiff, upon whom was the onus, had failed to prove the publication of the substance of the alleged defamatory words her claim was rightly dismissed.

Regarding the claim of damages for false imprisonment the learned trial judge while holding that the appellant had, been imprisoned, pointed out that such imprisonment followed the issue of a search warrant by the Magistrate. Section 107(1) of the Criminal Procedure Act empowers a magistrate to issue a search warrant which may include an authority “to apprehend the occupier of the house or place where the thing was found.” The statutory form is to be found in the Second Schedule to the Criminal Procedure Rules: Vol. VII Laws of Nigeria 1948.

There was clear evidence that the search warrant was grounded upon information sworn, not by the respondent, but by a policeman. The issue of a search warrant being a judicial act and being interposed between the complaints made to the police by the respondent and the detention of the appellant, relieved the respondent of liability for the imprisonment of the appellant.

On the authorities cited by the learned judge, namely, Austin v. Dowling, L.R. 5 C.P. 534 and Sewell v. National Telephone Company, (1907) 1 K.B. 557, I am of the opinion that his decision on the question of false imprisonment was right and that this appeal should be dismissed with costs which I would assess at 22 Guineas to the Respondent.

Other Citation: (1962) LCN/1006(SC)