➥ CASE SUMMARY OF:
Arab Contractors (O.A.O.) Nigeria Ltd. V. Gillian Umanah (CA/L/445M/09, 26 April 2012)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
False imprisonment;
Debt recovery;
➥ CASE FACT/HISTORY
The Respondent, formerly an employee of the Appellant, while in its employ, applied for and was granted a car loan and a housing loan of N520,000 by the Appellant in September 2004. The Respondent repaid some of the money leaving an outstanding balance of N338,147 which she failed to pay before resigning her appointment with the Appellant. Thereafter, the Appellant reported the matter to the police who then seized the vehicle bought by the Respondent with the car loan. The Appellant proceeded to file an action to recover the debt at the trial court. In response, the Respondent filed a counter claim seeking special and general damages for the seizure of the car by the Police. The police was joined as a party to the suit but neither entered any appearance nor defended the case. The trial court granted the claims of both parties and ordered that the sum awarded to the Appellant be offset from the damages awarded to the Respondent and the balance thereof be paid by the Appellant to the Respondent. The Appellant being dissatisfied with the judgment has brought this Appeal.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Whether the Appellant was actively responsible for the arrest of the Respondent and the illegal detention of the vehicle?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THERE IS MALICE IN THE CONDUCT OF THE APPELLANT IN REPORTING THE MATTER TO THE POLICE
‘The Appellant, through its witness had claimed that it reported the matter to the Police because it feared that the Respondent had absconded with the Appellant’s money. Also, at the trial court, during the cross-examination of the Appellant’s sole witness, Mr. Njoku on page 180, paragraph 20 of the record, Mr. Njoku stated as follows: “I just said that, we have a letter to dispatch to her we sent our dispatch rider to her house, no body wants to receive the letter, so we now informed the police may be they could help us get to her so that we can invite her to our office for settlement that was all.” From the undisputed facts in this case, the Respondent resigned her employment on the 6th of June 2005 and she was arrested on the 28th of July 2005. Also, within this period, it was an undisputed fact that she had on occasions visited the office of the Appellant. How then can the Appellant justify its assertion that it only involved the police when the Respondent could not be found? The period was too short (less than 2 months) to warrant this and as such there was no reasonable cause for the Appellant to assume that the Respondent had indeed absconded with no intention to repay the debt. In any event, and in the circumstances of this case, if the Respondent indeed refused to pay her loan, it would be a breach of contract and not a criminal offence to warrant seizure of the car by the police. I agree with the Respondent’s counsel that there seems to be a presence of malice in the act of the Appellant in reporting the matter to the police. Since there was no probable cause necessitating the report of the matter to the police, one can only presume that the Appellant wanted the vehicle seized and this was its intention when it reported the matter to the police.’
THE APPELLANT WAS INSTRUMENTAL IN SETTING THE LAW IN MOTION
‘I also agree with Respondent’s counsel that since the Appellant through its sole witness had admitted to the fact that it had the authority to direct the police to release the vehicle (See page 180, para 35-38 and page 181, para 1 of the records), it can be reasonably presumed that it was instrumental in setting the law in motion against the Respondent. This coupled with the fact that the vehicle was at the time of trial in the possession of the Appellant shows that the Appellant was actually actively involved in the illegal seizure of the vehicle.’
‘This case is almost on all fours with ALAO v. ASHIRU and ORS. cited supra. In that case the Appellant’s pepper mill had been removed by the police for breach of an arrangement with the Respondents. The Supreme Court frowned at that course of action and found the Respondents liable as if they had actually removed the pepper mill. In the said case of ALAO v. ASHIRU in the NSCC report at Pg. 533, the Supreme Court held per Elias CJN as follows: “We are of the view that, even if the police had been shown to have removed the mill at the defendants’ instance, the defendants would nevertheless have been liable for the wrongful seizure of the mill, since they would then have set in motion a ministerial act as distinct from a judicial one: Hopkins v. Crowe 111 English Reports, P.974, at P.975. It cannot be over-emphasized to both high and low that every person resident in this country has a right to go about his or her lawful business unmolested or unhampered by anyone else, be it a Government functionary or a private individual. The courts will frown upon any manifestation of arbitrary powers assumed by anyone over the life or the property of another even if that other is suspected of having breached some law or regulation. People must never take the law into their own hands by attempting to enforce what they consider to be their right or entitlement. It is therefore wrong for a group of persons to go to the workshop of another in Bode, effect a forcible entry into it, beat up his employee and remove the morning’s takings, all in the purported but misguided exercise of power on behalf, ostensibly, of a local branch of a trade union. It is even more wrong for such persons to claim immunity for their action on the pretence that it was a police officer that they had employed to remove the pepper mill. The law of Nigeria is that those who set a ministerial rather than a judicial officer in motion in this way are as liable for the wrongful seizure of another’s property as if they had done it themselves. Police officers must, therefore, be wary of being unveigled (sic) into a situation in which they find themselves becoming partisan agents of wrong-doers in the pursuit of a private vendetta. This kind of a show of power which is becoming too frequent in our society today must be discouraged by all those who set any store by civilized values.” I daresay that the strong words and sentiments expressed by Elias CJN in that case still holds good today. I adopt them as mine. It is therefore my humble but firm view that instigating the detention of the Respondent’s vehicle was an unlawful act done intentionally without just cause or excuse and therefore malicious in the legal sense. I do not agree with the learned appellant’s counsel that the detention of the respondent’s vehicle by the police was quite independent of the appellant. The court below found as a fact that the appellant was actively instrumental in setting the law in motion against the Respondent. There is abundant evidence upon which the court below drew the conclusion and they are justified in doing so.’]
.
.
↪️ II. Whether the receipts are inadmissible?
RESOLUTION: Yes. IN RESPONDENT’S FAVOUR.
[‘Let us consider the facts of this case. The action was commenced in December 2005 and the receipts were issued between August 2005 and January 2006. It would seem that it is only the receipt issued in January 2006 that is in danger of falling within this provision. Moreover, the section refers to documents made by ‘person interested’ and section 91(4) goes further to define who a maker of a document is. Section 91(4) provides that: “For the purpose of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part thereof was written, made or produced by him with his own hand, or was signed or initiated by him or otherwise recognized by him in writing as one for the accuracy of which he is responsible”.’
‘There is a presumption that the date the document carries was the date it was made. The receipts were issued/ made by Allen Transport Service Association and since Allen Transport Services cannot be considered a party interested, I don’t see how any of the receipts can fall within the meaning of section 91 (3). See YA’U v. DIKWA (2001) 8 NWLR (Pt. 715) 127. Quite apart from that, the Respondent did not initiate the action and could not have sourced the receipts because she anticipated that they would come in useful during litigation. Even the singular receipt that was issued after the litigation started is not excluded since the deprivation of the vehicle by Appellant was still ongoing at the time.’]
.
.
↪️ III. Whether the lower court was right to have refused the Appellant an order to sell the vehicle to realize the debt owed to it by the Respondent?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[‘In the light of the resolution of the first two issues, I agree with the Respondent’s counsel that there is nothing on which an order for sale can be based. The trial court having given judgment as it did and having awarded damages to the Respondent against the Appellant that far exceeds the Respondent’s original indebtedness to the Appellant, the Appellant’s claim for an order for sale is no longer relevant.’]
.
.
.
✓ DECISION:
‘The Appellant could have appealed against the quantum of the award for damages, but it did not do so. A judge is not a Father Christmas and as such cannot grant a relief not sought. The 3rd issue is also resolved against the Appellant. In totality, this appeal lack merit and it is hereby dismissed. I award N50,000.00 cost to the Respondent against the Appellant.’
➥ FURTHER DICTA:
⦿ A CIVIL ARRANGEMENT IS NOT A MATTER FOR THE POLICE
There is a plethora of cases on the fact that a civil arrangement is not a matter for the police. The police, as the Respondent’s counsel has pointed out, is not a debt collecting organization. In Igwe v. Ezeanuchie (2010) 7 NWLR (Pt. 1192) 61, this Court held that the police are not and should not in any community of civilized people be used as debt or levy collectors, or in the resolution or settlement of civil disputes amongst people. See also AGBAI v. OKUGBUE (1991) 7 NWLR (Pt. 204) 391; NKPA v. NKUME (2001) 6 NWLR (Pt. 710) 543. — M. Ogunwumiju JCA.
⦿ TO PROVE FALSE IMPRISONMENT, PARTY MUST SHOW THAT THE OTHER WAS INSTRUMENTAL IN SETTING THE LAW AGAINST HIM
It is therefore apparent that the detention of the Respondent and the seizure of the vehicle by the police were illegal acts. Now the question that calls for determination is: Can the Appellant be held responsible for these acts? Every private individual has the right to report a crime or a suspected crime to the police. This on its own cannot ground an action for false imprisonment against the private individual. The Supreme Court in Isheno v. Julius Berger (Nig.) Plc. (2008) 6 NWLR (Pt. 1084) 582 at 597 held that: “The position of the law is that an action for false imprisonment will not lie against a private individual who merely gave information which led the police on their initiative to arrest a suspect.” In Okonkwo v. Ogbogu (1996) 5 NWLR (Pt. 449) 420 at 433, the Supreme Court per Ogwuegbu JSC held as follows: “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.” Thus, for a party to succeed in an action for false imprisonment, the party must prove that it was the other party that was actively responsible in setting the law in motion against him. — M. Ogunwumiju JCA.
⦿ WHAT COURT WILL CONSIDER IN FALSE IMPRISONMENT; MALICE
From the foregoing, it is apparent that the determination of whether the Appellant was actively responsible for the arrest of the Respondent and the illegal detention of the vehicle is a matter of fact. The court must consider several things. For instance whether there was reasonable and probable cause which led the Appellant to lodge a complaint to the police. Also, the court has to consider the presence or absence of malice in the act of the Appellant. It should be noted here that malice in this form of action is not to be considered in the sense of spite or hatred against the Respondent but of malus animus and as denoting that the appellant was actuated by improper and indirect motives. See ODUWOLE and ORS v. WEST (2010); AGUOMBA v. UWAIS (2007) All FWLR (Pt. 346) 440 at 467; BAKARE v. IBRAHIM (1973) 6 S.C. 147. It is my humble opinion then, that there are two things this court must consider in the determination of this issue. Was there probable cause on the part of the Appellant which led it to report the matter to the police? Did the Appellant act maliciously? — M. Ogunwumiju JCA.
⦿ ESTIMATE OF REPAIRS DOES NOT SUFFER FROM INADMISSIBILITY (DUE TO BEING AN INTERESTED PERSON)
This Court has held that estimate of repairs though made during the pendency of the suit does not suffer from the disability of S.91(3) of the Evidence Act because the maker of the estimate was not an interested party in the suit. An interested party contemplated in the exclusion of evidence or disqualification therefore is a person who is interested in the outcome of the litigation. See IGBINOVIA v. AGBOIFO (2002) FWLR (Pt. 103) 505 at 517, OWENA BANK PLC, v. CHIEF OLATUNJI and ORS. (2002) FWLR (Pt. 124) 529 at 591. The overriding raison d’etre of the legislation in my humble view is that the Courts would not allow a person interested to cook up a statement during the pendency of a suit or its anticipation in order to defeat the course of justice. In UGWU v. ARARUME (2007) 6 SCNJ Pg.316 at 354 – 355, the Supreme Court held that even though PDP was not a party in the proceedings at the material time, the document made by PDP was inadmissible under S.91 (3) because they were interested in the outcome of the litigation between UGWU v. ARARUME. — M. Ogunwumiju JCA.
⦿ THE POWER OF THE POLICE TO PROSECUTE IS SUBJECT TO THE ATTORNEY GENERAL’S POWER
Undoubtedly, by virtue of the provisions of the police Act CAP 359 Laws of the Federation of Nigeria L990, the police have the power to receive complaints and investigate the commission of any offence. By virtue of section 33 of the police, the provision of Act (supra), the police have the power to conduct in person all prosecutions before any court of competent jurisdiction in Nigeria. However, the exercise of such power is strictly subject to the far reaching powers accorded the Attorney General of the Federation (or state) under sections 174 and 211 of the constitution of the Federal Republic of Nigeria, 1999, as amended. See PROFESSOR M. B. AJAKAIYE and ORS v. FEDERAL REPUBLIC OF NIGERIA (2010) 11 NWLR (Pt. 1206) 500 at 524 paragraphs D – E. — I.M.M Saulawa JCA.
⦿ NATURE OF FALSE IMPRISONMENT
The definition of false imprisonment from the learned authors of Clerk and Lindsell on Torts, 14th Edition at page 681 is found quite apt in the resolution of this head of claim. The tort of false imprisonment is defined as follows:- “A false imprisonment is complete deprivation of liberty for anytime however short without lawful cause, imprisonment is no other thing but the restraint of a man’s liberty whether it be in the open field, or in the stocks or in the cage in the street, or in a man’s own house, as well as in the common goalie; and in all the places the party so restrained is said to be a prisoner so long as he hath not his liberty freely to go at all times to all places whither he will without bait or main praise or otherwise. The prisoner may be confined within a definite space by being put under lock and key or his movements may simply be constrained by the will of another”. The law will support a person who had good reasons to make a report to the police on an offence so long as he wants them to use their own discretion in taking further steps. An action for false imprisonment will not lie against an individual who merely gave information to the police, on their initiative to arrest a suspect. However a party to an action for false imprisonment may succeed, if he can prove that it was the other party that was actively responsible in setting the law in motion against him. — S.D. Bage JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Moronkeji Ogunwumiju JCA
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Kunle Okesanya.
⦿ FOR THE RESPONDENT(S)
Mike Umonnan Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
