⦿ CASE SUMMARY OF:
Daniel Okonkwo v. Fred Ogbogu & Anor (1996) – SC
– False imprisonment;
(1996) 5 NWLR (Pt.449) 420;
⦿ LEAD JUDGEMENT DELIVERED BY:
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Ben Anyaduba, Esq.
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
The 1st respondent as plaintiff instituted an action in the Asaba Judicial Division of the High Court of the former Bendel State against the appellant as the 1st respondent and the 2nd respondent as the 2nd defendant claiming the sum of N20,000.00 jointly and severally for the tort of false imprisonment.
The 1st respondent in paragraph 22 of his statement of claim averred as follows:- “WHEREFORE the plaintiff brings and claims from the defendants , jointly and severally the sum of N20,000.00 being general damages for false imprisonment in that on or about the 2nd day of May, 1982 at Asaba in the Asaba Judicial Division the 1st defendant falsely and maliciously preferred before the Nigeria Police Asaba a charge of wilful and unlawful damage to his (1st defendant’s) property at Asaba and falsely procured the arrest of the plaintiff by the 2nd defendant on or about the 4th day of May, 1982 on the said charge at about 11.30 a.m. and was detained in police custody until about 6 p.m. when he was released on bail.”
The learned trial Judge found the 1st defendant liable for false imprisonment and awarded N3,000.00 damages against him. The 2nd defendant was found not liable.
The 1st defendant who is the appellant herein unsuccessfully appealed to the Court of Appeal and has further appealed to this court.
1. Whether the failure of the learned Justices of the Court of Appeal to consider ground 2 of the appellant’s ground of appeal occasioned a miscarriage of justice against the appellant?
2. Whether the onus of proof as regards the statement of the appellant to the Police was discharged by the respondent when the statement was not produced as the Primary Evidence of its content and when non-production was never explained out by the respondents. And accordingly whether section 148(d) of the Evidence Act enures in favour of the appellant against the respondent in the circumstance?
3. Whether the award made by the learned trial Judge and affirmed by the Court of Appeal support the evidence led or in the alternative whether the two courts below applied the correct principles of law in reaching the award made?
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED WITH COST, #1,000]
1 & 2. THESE ISSUES WERE HELD AGAINST THE APPELLANT.
i. It was the evidence of P.W.2 which the learned trial Judge preferred as against the conflicting averments of the 1st defendant (appellant) reproduced above. The learned trial Judge neither referred specifically to Exhibit “B” nor to the alleged statement of the appellant to the police which was not tendered in evidence. The conflicts referred to by the learned trial Judge are those that are contained in the evidence of the appellant and his statement of defence as to the exact nature of his report to the police. In one breath, he said that he suspected three active members of the Ezenei Committee including the 1st respondent and in another breath, he stated that it was infact the 1st respondent, P.W.2 and Obi J.I.G. Onyia who demolished his hut. In answer to the cross examination by Mr. Efekeze, it was no longer a question of suspicion hence the learned trial Judge preferred the evidence of P.W.2. Even if the court below had considered the issue, it would still have found against the appellant and the failure of the court below to consider it did not occasion any miscarriage of justice.
ii. The complaint of the appellant is against concurrent findings of fact of the lower courts. The courts below did not act on the said statement of the appellant which was not before it. There are the statement of defence of the appellant and his oral testimony before the court which are in conflict. In paragraph 5(viii) of his statement of defence, the appellant averred that he told the 2nd defendant/respondent that he suspected the members of the Ezenei Executive Committee. But this averment contradicted his evidence in answer to cross examination by Mr. Efekeze counsel for the 2nd defendant where he specifically mentioned the names of the 1st respondent and two others. As I said earlier, the complaint is against concurrent findings of fact. The attitude of this court with regard to concurrent findings of fact of the lower court is well established in numerous decisions of this court. In this case no special circumstances have been shown to justify interference with the findings.
iii. What a party himself admits to be true, can reasonably be presumed to be so. This is more so where the admission was made on oath. The learned trial Judge considered the admission along with other evidence before him and preferred that of P.W.2. The court below was correct to have affirmed that conclusion. A party’s own statements are in all cases admissible against him whether they corroborate the contents of a written document or not.
iv. When P.W.2 testified that the appellant saw him and his children remove the structure and challenged them, P.W.2 ordered his children to beat up the appellant if he interferred with them. The appellant did not cross examine P.W.2 on this piece of evidence. It stood unchallenged. It was also within the knowledge of the appellant that the 1st respondent did not take part in the demolition of his hut. He must therefore show probable cause for reporting the appellant to the police. This he failed to do. The 1st respondent was able to show want of reasonable or probable cause on the part of the appellant. Instigating the arrest and detention of the 1st respondent was an unlawful act done intentionally without just cause or excuse and therefore malicious in the legal sense. Malice in this form of action is not to be considered in the sense of spite or hatred against the 1st respondent but of malus animus and as denoting that the appellant was actuated by improper and indirect motives.
3. FOR ISSUE 3, THE SUPREME COURT GAVE JUDGEMENT AGAINST THE APPELLANT, AND THAT THE AWARD WAS PROPERLY MADE.
i. An appellate court is not justified in substituting a figure of its own for that awarded by the court below simply because it could have awarded a different figure if it had tried the case at first instance. Before it can properly intervene, it must be satisfied either that the Judge, in addressing the damages applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damage.
ii. Any trespass to the person, however slight, gives a right of action to recover at any rate nominal damages. Even where there has been no physical injury, substantial damage may be awarded for the injury to the man’s dignity or for discomfort or inconvenience. Where liberty has been interfered with damages are given to vindicate the plaintiff’s rights even though he has not suffered any pecuniary damage. It is also not necessary for the plaintiff to give evidence of damage to establish his cause of action or to claim any specific amount of damage.
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
As a general rule, an appellant will not be allowed to raise on appeal a question which was not raised, tried and considered in the court below unless the question involves substantial points of law, substantive or procedural and it is clear that no further evidence could have been adduced which could affect the decision on them. – OGWUEGBU, J.S.C. OKONKWO v. OGBOGU (1996)
The point of law must be raised on a ground of appeal and argued as an issue arising from the ground of appeal. It is not competent to raise and argue a point of law as an issue in an appeal when such issue is not based on a ground of appeal. – OGWUEGBU, J.S.C. Okonkwo v. Ogbogu (1996)
Assuming that the courts below made use of the statement, which was not the case, I fail to see the necessity for its being tendered when the maker has stated on oath what is contained in his statement. Having admitted on oath what he told the police, the admission became part of the plaintiff’s case and it is evidence against him. – OGWUEGBU, J.S.C. OKONKWO v. OGBOGU (1996)
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. – OGWUEGBU, J.S.C. OKONKWO v. OGBOGU (1996)
I do not agree with the learned appellant’s counsel that the arrest and detention of the 1st respondent by the 2nd respondent was quite independent of the appellant. The courts below found as a fact that the appellant was actively instrumental in setting the law in motion against the 1st respondent. There is abundant evidence upon which the courts below drew the conclusion and they are justified in doing so. – OGWUEGBU, J.S.C. OKONKWO v. OGBOGU (1996)
Any trespass to the person, however slight, gives a right of action to recover at any rate nominal damages. Even where there has been no physical injury, substantial damage may be awarded for the injury to the man’s dignity or for discomfort or inconvenience. Where liberty has been interferred with damages are given to vindicate the plaintiff’s rights even though he has not suffered any pecuniary damage. It is also not necessary for the plaintiff to give evidence of damage to establish his cause of action or to claim any specific amount of damage. – OGWUEGBU, J.S.C. OKONKWO v. OGBOGU (1996)