CLIFFORD OKEKE v. LUCY IGBOERI
(2010)LCN/3598(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 2nd day of March, 2010
CA/B/304/2008
RATIO
PLEADINGS: EFFECTS OF EVIDENCE ADDUCED OF FACTS NOT PLEADED
It is well settled that parties must limit themselves to the issues raised in their pleadings, as evidence adduced of facts not pleaded, or contrary to facts pleaded is inadmissible and goes to no issue – see Ogbogu v. Ugwuegbu (2003) 10 N.W.L.R. (pt. 827) 189, U. B. A. Plc v. S.A.F.P.U. (2004) 3 NWLR (pt. 861) 516, Jolayemi v. Alaoye (2004) 12 NWLR (pt 887) 322, Ndoma-Egba v. Chukwuogor (2004) 6 NWLR (pt.869) 383, and Oviawe V.I.R.P. (Nig.) Ltd. (1997) 3 NW,LR (pt.492) 126 where the Supreme Court held as follows:
‘It is also trite that, it is not open to a party to depart from his pleadings and to put up a different case nor, equally is it open to the trial Court to depart from the case pleaded by the parties and to found its Judgment on matters, which are neither pleaded nor constitute issues as settled in the pleadings. (Highlight mine). PER AMINA ADAMU AUGIE, J.C.A.
COURT: DUTY OF COURT NOT TO FILL IN THE GAPS IN A CASE OF A PARTY
It is trite law, that where there are gaps in the case put forward by a party; it is not within the province of a Court to fill in the gaps – see Mobar v. Ali (2002) 1 NWLR (pt. 747) 95; N. B. C. I. v. Standard (Nig.) Eng. Co. Ltd. (2002) 8 NWLR (pt.768) 104. PER AMINA ADAMU AUGIE, J.C.A.
TORT: NATURE OF THE TORT OF FALSE IMPRISONMENT
The tort of false imprisonment is the restraining or detaining of a person, if the person doing or causing the imprisonment has no right in law to imprison that other – see FBN Plc v. Onukwugha (2005) 16 NWLR (Pt. 950) 120, wherein it was held as follows-
‘If there is evidence, which shows that the reporting party, upon suspicions of a felony made a complaint to the Police, upon which the Police themselves acted, an action in false imprisonment cannot be upheld. Thus, to succeed in an action for false imprisonment, the Plaintiff must establish that the Defendant was instrumental in setting the law in motion; passing information to the Police is not enough’.
In other words, a mere complaint to the Police will not make a citizen liable of false imprisonment – see Nwangwu & Anor v. Duru & Anor (2002) 2 NWLR (Pt. 751) 265, where this Court held:
‘Where an individual has lodged the facts of his complaints to the Police and the Police thereupon on their own proceeded to carry out arrest and detention, then the act of imprisonment is that of the Police. PER AMINA ADAMU AUGIE, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
CLIFFORD OKEKE Appellant(s)
AND
LUCY IGBOERI Respondent(s)
AMINA ADAMU AUGIE, J.C.A. (The delivering of Lead Judgment): The Respondent’s daughter, Ifeoma, was the Appellant’s girlfriend, and she had a key to his room. Some money got stolen from the locker in his room, which was not broken into, and suspecting Ifeoma of taking the money, the Appellant reported her at the New Benin Police Station, Benin City. Ifeoma and her sister, Nkechi, were arrested and detained there, and when the Respondent went to the Station to arrange for the release of her daughters and handover the key to the Appellant’s room, she too got arrested, and spent two days in custody before being released on bail.
Dissatisfied with the conduct of the investigation, the Appellant wrote a Petition to the Commissioner of Police, State C.I.D., and the Respondent was re-arrested and detained at the Police Cell in State C.I.D for four days. After her release on bail, her Solicitor wrote to the Appellant demanding N5 Million Naira for unlawful arrest and detention. His Solicitor replied that he had no hand in the matter, and she then filed, the action that led to this appeal at the Edo State High Court, Iguobazuwa, claiming the sum of N5 Million Naira as aggravated damages for false imprisonment.
This appeal turns on the issue of pleadings vis-a-vis evidence led, and it will be necessary to identify the relevant averments therein. The Respondent filed a 22-paragraph Statement of Claim, wherein she averred that Ifeoma had been living with the Appellant since 1997, and they were engaged to be married. However, on 25th May, 1999, the Appellant asked Ifeoma to go back home because he wanted to bring in another girl. She further averred:
“6. On 28/5/99 the Defendant with the aid of the Police at Nigerian Police Station, New Benin, Benin City arrested Miss Ifeoma Igboeri on a bogus allegation that he lost the sum of N244,000.00 and that he suspects Ifeoma and the boys in the area. The Plaintiff will at the trial tender and rely on the Police Crime Diary of 28/5/99
9. On 30/5/99, when the Plaintiff went to the Police Station, New Benin to arrange for the release of her two daughters, Nkechi and Ifeoma, and handover the key which the Appellant had given to Ifeoma, but to the Plaintiffs greatest surprise, the Defendant identified the Plaintiff to the Police, Sgt. Ola, as the mother of Miss Ifeoma Igboeri and one of those who have stolen his N244,000.00.
10. Based on the Defendant’s prompting as referred to in paragraph 9 above Sgt. Ola arrested the Plaintiff and detained her. The Plaintiff was released on Police bail after spending two days at the New Benin Police custody.
11.The Defendant almost kept vigil at the New Benin Police Station and indulged in vituperative exchanges with the Plaintiff and her two daughters persuading the Police not to release the Plaintiff and her two daughters on bail until the sum of N244, 000.00 is given back to the Defendant.
15.After the release of the Plaintiff and her two daughters on bail at the New Benin Police Station, the Defendant who felt he has not dealt adequately with the Plaintiff and her two daughters wrote a Petition to the State C.I.D., Benin City, on the strength of which the Plaintiff and her two daughters were re-arrested and detained at the Police Cell, State C.I.D. on 7/6/99. ;
21. The Plaintiff avers that the arrest and detention were malicious, unlawful, and without legal justification.
22.WHEREOF the Plaintiff claims against the Defendant the sum of N5m (Five Million Naira) being aggravated damages for false imprisonment for the unlawful arrest and detention at the instance of the Defendant in Benin City between 30/5/99 and 11/6/99 at the New Benin Police Station and the State C.I.D. Police Cell, Police Headquarters, Benin.
The Appellant as Defendant filed a 24-paragraph Statement of Defence, wherein he conceded that Ifeoma was his girlfriend, but denied that they lived together permanently, as she used to come and go, or that he proposed marriage to her. He further averred-
9. The Defendant in answer to paragraph 6 of the Statement of Claim avers that he kept N244, 000.00 in a locker attached to his bed in his bedroom and this was on or before the 28th of May, 1999.
11.The Defendant in specific answer to paragraph 9 of the Statement of Claim avers that when the said Ifeoma was arrested by the Police at the New Benin Police Station, the I.P.O informed him that she made statement to the Police that the key to the Defendant’s room got lost and the Policeman investigating the case was surprised when the Plaintiff brought the key to the Station and the Police had to obtain statement from her in the course of their investigation.
17.The Defendant in specific answer to paragraph 15 of the Statement of Claim avers that he wrote a Petition to the Commissioner of Police about the way his case was handled, and the New Benin Police Station merely transferred the case file and the suspects arrested in course of their investigations to the State C.I.D. Benin City.
20.The Defendant avers that after the investigation of the case at C.I.D, the Police charged the daughter of the Plaintiff to Court in consonance with the Defendant’s initial report against her in connection with the loss of his money.
22. The Defendant in specific answer to paragraph 21 of the Statement of Claim avers that the arrest and detention of the Plaintiff by the Police in course of police investigation was not malicious, and not unlawful and the Defendant states further that he has no hand in the investigation conducted by the Police but merely reported a case of breaking and stealing of his money in his room.
23. The Defendant avers that the claim of the Plaintiff as stated in paragraph 22 of the Statement of Claim is gold digging and speculative and will at the trial of this suit raise the issue that there is no cause of action against the Defendants and the suit should be dismissed with substantial costs against the Plaintiff.
24. The Defendant will at the trial of this suit rely on legal and equitable defences available to him and will further rely on all processes filed.
At the trial that ensued, the Respondent testified and called three other witnesses, including Ifeoma as PW1. Her testimony is to the effect that the Appellant played a major role in getting them arrested and detained, as he was the one who asked the Police to arrest her, and chartered the car that took them to the State C.I.D.
On his part, the Appellant testified that Ifeoma had told him the spare key he gave her was missing, and that when he was not satisfied with the investigation at the New Benin Police Station, he wrote the Petition dated 3151 May 1999, and addressed to the Commissioner of Police, State C.I.D. [Exhibit ‘DA’], which reads-
NEED FOR TRANSFER OF MY CASE REPORTED AGAINST MY FORMER GIRLFRIEND MISS IFEOMA IGBOERI AT THE NEW BENIN POLICE STATION, BENIN CITY
I am a trader that had taken long time to get the sum of N244, 000.00 to save. I kept the money by my locker and I have a girlfriend staying with me called Ifeoma Igboeri who has the key to my room. My door was not broken but the locker to my room was broken. I am not too happy with the way the I.P.O. is doing the case I reported against my girlfriend. I urge you to help me transfer the case to your office for proper investigation.
The Appellant sought and was granted leave to call Sgt. Olarewaju Osunyinbi, the Investigating Police Officer [IPO], who testified that Ifeoma told him she had lost the key to the Appellant’s room, and that the Respondent was arrested when she brought in the key.
After hearing addresses of counsel, the learned trial Judge, Osadiaye, J., delivered his Judgment on the 1st of April, 2008, wherein he found in favour of the Respondent. He held as follows-
‘I do not believe the evidence of the Defendant that he merely reported a case of stealing against PW1 and that the Petition he wrote was against PW1 only. I see the Petition as a continuation of his bitterness and vindictiveness as it was written the very day the New Benin Police Station released the Plaintiff and the daughters on bail. He actively participated by providing a chartered vehicle which conveyed the Plaintiff and daughters once again into detention at the State C.I.D. which resulted in her spending three days in the cell. It is my view and I hold that the arrest and detention of the Plaintiff was not only unjustifiably unnecessary, it was unlawful. It is my view and I hold that the Defendant was the one who set the instrumentality of the law in motion and that his action was more than merely passing information to the Police. It is my view and I hold that the Plaintiff has, on the preponderance of evidence, proved her case against the Defendant I, accordingly find the Defendant liable for the false imprisonment of the Plaintiff at both the New Benin Police Station and State C.I.D. Police Headquarters, Benin City. I agree that the intention of the Defendant in causing the arrest of the Plaintiff was to hurt and injure her pride, a mother of a girlfriend recognized by the Plaintiff and her husband.
I accordingly award to the Plaintiff N800, 000.00 damages against the Defendant for her false imprisonment. The Plaintiff, in my view, is entitled to costs which I assessed and fixed at N50,000.00.
Dissatisfied with the decision of the lower Court, the Appellant appealed to this Court with a Notice of Appeal containing three Grounds of Appeal. He also filed a brief of argument prepared by Olayiwola Afolabi, Esq., and seven other counsel named thereon.
The Respondent failed to file a brief, and the Appellant obtained an Order of this Court to hear this appeal on his brief only. However, the point must be made that the Respondent’s failure to file her brief will not affect the determination of the appeal because the Appellant can only succeed or fail on the strength of his own case.
In other words, the fact that she did not file any brief does not mean that the Appellant will automatically succeed. But the danger in not filing a brief is that the Respondent will be deemed to have admitted the truth of everything stated in the Appellant’s brief in so far as it is borne out by the records – see Unity Bank v. Bouari (2008) 7 NWLR (Pt. 108) 6372 SC, Teleglobe America Inc. V. 21st Century Tech. Ltd. (2008) 17 NWLR (Pt. 1115) 104, Ejiofor v. Uzodike (2008) 17 NWLR (Pt. 1117) 470. Be that as it may, the Appellant formulated two Issues for Determination in his brief:
‘1. Having regard to the pleadings and the evidence on record, whether the trial Court was justified to have relied upon evidence in favour of the Respondent not pleaded before him and thereby setting up a case different from what the parties brought before him.
2. Having regards to Section 4 of the Police Act and having regards to the pleadings of the parties together with oral and documentary evidence before the lower Court, whether the trial Judge was right when he found the Appellant liable for false imprisonment.
On Issue 1, the Appellant submitted that a trial Court is bound by the pleadings and evidence on record, and cannot depart them, citing Ihenacho v. Chigere (2004) 17 NWLR (Pt. 901) 130;that the lower Court seriously erred when it concluded as it did against him; that the Respondent, never pleaded that he reported a case of stealing against her but against her daughter; that the lower Court , did not see the Police Crime Diary of 28/5/99, which she pleaded and refused to tender; and that what the lower Court did in this case, amounted to speculation, which is not allowed in law, citing Kanumbu v. Bunu (2006) All FWLR (Pt. 300) 1709, and Nana v. The State decided on 23/5/80 in Appeal No. CA/B/252/06.
The Appellant further argued that the lower Court descended into the arena when it made the comment about his bitterness against the Respondent, and that he wrote his Petition on the very date she and her daughters were released on bail. It was submitted that there was no such pleadings on the part of the Respondent; that her name was not mentioned at all in the Petition; and that the Judgment cannot be allowed to stand, citing Princett V. The State (2002) 18 NWLR (Pt. 798) 49, Atolagbe v. Shorun (1985) 4 Be (Pt.1) 250, Ebba V. Ogodo (1984) 4 Be 84, State V. Aibangbe Locus Classicua Vol. 2 at 550 (sic), NEPA V. Ososanyi (supra) 2004) and Babatunde Ajayi V. Texaco Nig. Ltd. (1987) Vol., 1(Pt. 1)340 (sic). This Court was referred to the following authorities on pleadings – Ugochukwu V. Unipetrol (2002) 3 Be 80, Emegokwe v. Okadigbo (1973) (Pt. 1) All NLR 379, and National Investment Properties Co. Ltd. v. Thompson Organization Ltd. (1969) NMLR 99.
The Appellant is right; parties and the Court are bound by the pleadings filed in the case, and are not allowed to set up cases different from their pleadings. It is well settled that parties must limit themselves to the issues raised in their pleadings, as evidence adduced of facts not pleaded, or contrary to facts pleaded is inadmissible and goes to no issue – see Ogbogu v. Ugwuegbu (2003) 10 N.W.L.R. (pt. 827) 189, U. B. A. Plc v. S.A.F.P.U. (2004) 3 NWLR (pt. 861) 516, Jolayemi v. Alaoye (2004) 12 NWLR (pt 887) 322, Ndoma-Egba v. Chukwuogor (2004) 6 NWLR (pt.869) 383, and Oviawe V.I.R.P. (Nig.) Ltd. (1997) 3 NW,LR (pt.492) 126 where the Supreme Court held as follows:
‘It is also trite that, it is not open to a party to depart from his pleadings and to put up a different case nor, equally is it open to the trial Court to depart from the case pleaded by the parties and to found its Judgment on matters, which are neither pleaded nor constitute issues as settled in the pleadings. (Highlight mine).
In this case, I have to agree that there is no where the Respondent pleaded that the Appellant reported a case of stealing against her, and what is even more disconcerting is the lower Court’s conclusion that the Petition was not against the PW1 alone, when the Petition was before it as Exhibit ‘DA’, and it is clearly headed-
‘Need for Transfer of my Case Reported against my Former Girlfriend Miss Ifeoma Igboeri at the New Benin Police Station’.
The Petition is reproduced in this Judgment, and there is nowhere therein where the Respondent’s name is mentioned at all, and nothing to warrant the lower Court’s statement that the Petition was written on the very date they were released on bail, which he saw as ‘continuation of his bitterness and vindictiveness’ against them.
It is trite law, that where there are gaps in the case put forward by a party; it is not within the province of a Court to fill in the gaps – see Mobar v. Ali (2002) 1 NWLR (pt. 747) 95; N. B. C. I. v. Standard (Nig.) Eng. Co. Ltd. (2002) 8 NWLR (pt.768) 104. There was no basis for the lower Court’s conclusions in favour of the Respondent in this case, and it goes without saying that this Issue will be resolved in favour of the Appellant, an
d it so resolved.
In the circumstances, it will not be necessary to go into the details of the arguments proffered by the Appellant on Issue 2. Suffice it to say that I agree with him that there was no evidence before the lower Court to support its finding that the Appellant was instrumental in getting the Respondent arrested in the first place. He is a trader, and it is ludicrous to believe that he had such influence over the Police that he can mastermind the arrest and detention of the Respondent in the way and manner she described.
It is duty of the Police to arrest and detain anyone suspected of having committed or is involved in the commission of any crime.
The tort of false imprisonment is the restraining or detaining of a person, if the person doing or causing the imprisonment has no right in law to imprison that other – see FBN Plc v. Onukwugha (2005) 16 NWLR (Pt. 950) 120, wherein it was held as follows-
‘If there is evidence, which shows that the reporting party, upon suspicions of a felony made a complaint to the Police, upon which the Police themselves acted, an action in false imprisonment cannot be upheld. Thus, to succeed in an action for false imprisonment, the Plaintiff must establish that the Defendant was instrumental in setting the law in motion; passing information to the Police is not enough’.
In other words, a mere complaint to the Police will not make a citizen liable of false imprisonment – see Nwangwu & Anor v. Duru & Anor (2002) 2 NWLR (Pt. 751) 265, where this Court held:
‘Where an individual has lodged the facts of his complaints to the Police and the Police thereupon on their own proceeded to carry out arrest and detention, then the act of imprisonment is that of the Police.
This matter is therefore not properly constituted against the Appellants. They have not arrested nor detained the Respondents’.
In this case, the Appellant did not arrest or detain the Respondent. He reported a crime to the Police, and they arrested and detained the Respondent, so, the act of imprisonment is that of the Police. The Police did the arresting and the detaining, not the Appellant. Thus, the lower Court definitely erred when it found to the contrary. The end result is that the appeal succeeds and is allowed. The Judgment of the lower Court delivered on 1st April 2008 is hereby set aside. The Appellant is awarded N30,000.00 as costs.
OYEBISI FOLAYEMI OMOLEYE, JCA: I have had the advantage of reading before now the lead judgment just delivered by my learned brother, Augie JCA. I agree with his line of reasoning and conclusion that this appeal is meritorious. Accordingly, the appeal is also allowed by me. I abide by the consequential orders made in the said lead judgment including that of costs.
CHIOMA EGONDU NWOSU-IHEME (Ph. D) JCA: I have previously read the Judgment just delivered by my learned brother AMINA ADAMU AUGIE JCA. I am in full agreement with it.
My Lord has painstakingly analyzed and discussed the crucial issues for determination in this appeal. I hereby adopt his reasoning.
Consequently, I also find that the appeal is meritorious and it is hereby allowed by me. The Judgment of the court below delivered on the 1st of April 2008 is hereby set aside. I also award N30,000.00 as costs to the Appellant.
Appearances
E. O. Afolabi, Esq,. with D. A. Uhunwangho, Esq.
Mrs. A. I. Tsado, Mrs. J. O. Otokiti,For Appellant
AND
Mrs. U. Uwumaroge, and Mrs. F. U. MasajuwaFor Respondent
