⦿ CASE SUMMARY OF:
Union Bank of Nigeria Limited v. Patrick N. Ajagu (1989) – CA
⦿ LITE HOLDING
A master is vicariously liable for the acts/wrongs of his servants. Further, the burden in civil cases shifts and tilts till a party has nothing forth to bring.
⦿AREA OF LAW
Law of Tort
Union Bank of Nigeria Limited
Patrick N. Ajagu
(1989) JELR 43013 (CA)
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
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 premises, he had an encounter with the 2nd defendant alleged to be a gateman of the 1st defendant (now appellant). The following then occurred:
“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.”
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.
1. Whether the appellant bank were given a fair hearing under section 33(1) of the 1979 Constitution?
2. Whether or not the Appellant is vicariously liable?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. 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.
ii. 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.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. 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.
ii. 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.
iii. 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 and 12 S.C. 31.
⦿ ENDING NOTE BY LEAD JUSTICE – Per Uwaifo JCA
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.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
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.”
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.”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
In civil cases the burden of proof of particular matters or issues generally shifts from the plaintiff to the defendant and vice versa. – Uwaifo JCA. UBN v. Ajagu (1989)
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. – Uwaifo JCA. UBN v. Ajagu (1989)
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. – Uwaifo JCA. UBN v. Ajagu (1989)
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 and Co. (1951) 1 T.LR. 789 at 793 per Denning, L.J. – Uwaifo JCA. UBN v. Ajagu (1989)