ZENITH INTERNATIONAL BANK LIMITED v. REUBEN ULEBE ALOBU
(2016)LCN/8465(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of April, 2016
CA/E/308/2010
RATIO
JUDGMENT DEBT: WHEN WILL A JUDGMENT OF COURT TO PAY MONEY TAKE EFFECT
The Supreme Court held in Chief M.O. Olatunji v. Owena Bank Plc (2008) 8 NWLR Pt. 1090 Pg 668 that unless the Court otherwise orders, a judgment of Court to pay money takes effect from the day it is pronounced or delivered in Court. However, the Court at the time of making any judgment or order, or at any time afterwards, may direct the time within which the payment or other act is to be made or done. A person directed by Decree or Order of Court to pay money or to do any other act is bound to obey the decree or order without any other demand for payment or performance, and if no time is therein expressed, he is bound to do so immediately the decree or order is pronounced. Given the state of the law, the fact that the learned trial Judge gave a time limit to pay the Judgment debt is of no moment in so far as there is no pronouncement inhibiting the right of appeal or any other rightful measure the Appellant could take to evade the Judgment debt. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
TORT: FALSE IMPRISONMENT; MEANING AND NATURE OF FALSE IMPRISONMENT
False imprisonment involves the unlawful and unjustifiable restraint of a person’s right and liberty to move about freely. The tort of false imprisonment consists of the acts of arrest and detention or imprisonment of a plaintiff without lawful justification by the police or other law enforcement agencies on complaints or information received in the course of their duties. The position of the law is that it is not enough for a plaintiff in a claim for false imprisonment to plead and provide evidence that the defendant merely made a report against him to the police in which his name was mentioned as a suspect, but must also plead and establish that there are no reasonable and probable cause for making the report. In other words, a plaintiff has the legal burden of showing that there was no reasonable and probable cause for making the report and that the report is false, frivolous without foundation and actuated by malice. See Bayol v. Ahemba (1999) 7SC Pt. 1 Pg. 92; (1999) 10 NWLR Pt. 623 Pg. 381; UAC v. Bobodu (2006) LPELR – 7740 (CA). The malice envisaged here is that of a wrongful act intentionally done, and not that of malice in the con of malicious intent. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
TORT: FALSE IMPRISONMENT; CIRCUMSTANCES THAT DO NOT AMOUNT TO FALSE IMPRISONMENT
When it comes to the tort of imprisonment, 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. See Bank of West Africa v. Odiatu; Mandilas and Karaberis v. Apena (1969) All NLR 390, Isheno v. Julius Berger Nig. Plc (2008) 6 NWLR Pt. 1084 Pg. 582. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
ZENITH INTERNATIONAL BANK LIMITED – Appellant(s)
AND
REUBEN ULEBE ALOBU – Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice C.C. Mbanugo of the Anambra State High Court delivered on 20/05/2009. The Appellant appealed to the Court of Appeal on 29/6/2009. The facts that led to this appeal are as follows:
By the statement of claim dated 27/1/2003 and filed on 29/1/2003, the Respondent claimed against the Appellant in the High Court as follows:
“19 WHEREFORE, the plaintiff claims from and against the defendant as follows:
(a) The sum of N2,000,000.00 being special and general damages for false imprisonment.
PARTICULARS OF SPECIAL DAMAGES
(1) Loss of earning for 6 days at N17,500 per day ? N105,000.00
(2) Medical bill for illness occasioned by the detention and beating at police cells at Okpoko and Ibadan = N35,000.00
(3) Money spent by the plaintiff to secure bail at the Police Station = N45,000.00.
(b) General damages = N1,815,000.00.”
The gist of the
Respondent’s case as Plaintiff at trial is that Respondent is the Chairman/Managing Director of Reufounds Ventures Nigeria Limited. The company maintained a current account with the Appellant’s branch at Onitsha and also with Citizens International Bank, with a branch at Onitsha.
The Respondent on 4/1/2002 on behalf of Reufounds Ventures Nigeria Limited raised a draft for the sum of N1,000,000.00 (One Million Naira) through the Citizens International Bank, Onitsha branch in favour of Exton Industries Limited, Ibadan for the supply of Matches to Reufounds Ventures Nigeria Limited.
Appellant’s Ibadan Branch on the presentation of the draft by the Officers of Exton Industries Limited dishonoured the draft and went further to complain to the Central Police Station Ibadan that the Respondent forged the bank draft.
The Officers of Central Police Station Ibadan came to Onitsha and arrested the Respondent. He was detained for six days (two days at Okpoko in Anambra State and four days at Ibadan in Oyo State).
Respondent claimed he was later released by the Central Police Station Ibadan after the payment of N45,000.00 to the
Officers. Appellant later cleared the draft it alleged was forged by the respondent.
The Respondent wrote two letters to the Appellant demanding an apology and compensation for his arrest and detention by the Police at the request of the Appellant. The Respondent did not receive favourable feedback from the Appellant and he then brought the action with the claims already set out above against the Appellant. The trial Judge held as follows on page 87 of the Record:
The trial Judge found in favour of the Respondent then awarded the Respondent the sum of N500,000 as damages.
Notice of appeal was filed against the judgment on 28/06/09. The Appellant in the brief settled by E. Obiesie Ofodile Esq identified four issues for determination as follows:
1. DID THE PLAINTIFF/RESPONDENT MAKE A CLAIM FOR HIS SUFFERING.
2. WAS DEFENDANTS/APPELLANTS CONSTITUTIONAL RIGHT OF APPEAL NOT INFRINGED BY THE COURT ORDERING THAT THE JUDGMENT DEBT BE PAID WITHIN 40 DAYS.
3. IS IT THE DUTY OF THE DEFENDANT TO ARREST AND DETAIN AN OFFICER OF CITIZENS INTERNATIONAL BANK?
4. IS THE JUDGMENT NOT
AGAINST THE WEIGHT OF EVIDENCE.
The respondent submitted the following issues for determination.
1. Whether the judgment of the trial Court is consistent with the evidence before the trial Court.
2. Whether in the circumstances of this case, the trial Court could be said to have acted unfairly to cause miscarriage of justice against the appellant.
The issues identified by the Appellant will be utilised by me in the determination of this appeal.
ISSUE ONE
Did the Respondent make a claim for his suffering?
On this issue, learned Appellant?s counsel in the brief settled by E. OBIESIE OFODILE ESQ, urged this Court to refer to the claim of the Respondent as plaintiff at the trial Court and to hold that since the Respondent never made a claim for his “suffering”, the learned trial Judge was wrong to award him damages on that claim. He submitted that cases are fought on the parties’ pleadings as supported by evidence and no specific claim of the Respondent referred to his “suffering” for which he could be compensated. He
submitted that no Court should award that which is not claimed by a party as the Court is not a charitable organisation. Counsel cited ?
(i) NSIONU v. NSIONU (2011) (PT. 1274) 16 N.W.L.R. PAGE 536 AT PAGE 529 RATIO 3.
(ii) AKITI v. PUNCH (NIG.) LTD. (2009) (PT. 1152) 11 N.W.L.R. PAGE 281 AT PAGE 284 RATIO 2.
(iii) STOWE v. BENSTOWE (2012) 9 N.W.L.R. (PT. 1306) PAGE 453 RATIO 3, AT PAGE 454 RATIO 7.
Learned Appellant?s counsel submitted that it cannot be a consequential relief if at any point in the pleading or evidence, no issue of suffering was fought by the parties. Counsel further cited ?
(i) ODUKWE v. OGUNBIYI (1998) 8 N.W.L.R. (PT. 561) PAGE 339 AT PAGE 334 RATIO 10.
(ii) IBB IND. LTD. v. MUTUNEI CO. (NIG.) LTD. (2012) 6 N.W.L.R. (PT. 1297) PAGE 487 AT PAGE 499 RATIO 19.
(iii) YAKUBU v. MWT. ADAMAWA STATE (2006) 10 N.W.L.R. (PT. 989) PAGE 513 AT 522 TO 523 RATIOS 9, 10 AND 11.
?On this issue, learned Respondent?s counsel in the brief settled by CHINWEIKE OBIOJI Esq argued that the
Respondent had sued the Appellant for his inconveniences and sufferings in the hands of the appellant which Appellant admitted in Exhibit “C” where the Appellant claimed it had compensated the respondent for his suffering.
It is contended for the Respondent that the trial Court findings and order of the payment of N500,000.00 to the Appellant is based upon the facts and circumstances before the trial Court. Counsel submitted that the order for the payment of N500,000.00 to the Respondent is compensation for inconveniences suffered by the Respondent during his arrest and detention. Learned Respondent’s counsel submitted that the order is within the judicial discretion of the trial Court. He cited Ebe v. C.O.P (2008) 4 NWLR (PT. 1076) P. 189 at pp 203 ? 204.
Counsel submitted that the Appellant’s complaint has no basis because the Respondent’s claim was for false imprisonment and that the object of the award of damages is to compensate the aggrieved party for his pain, suffering, deprivation of amenities and enjoyment of his liberty and life by the act of another person. Counsel cited Iyere v. B.F.F.M. (2008) 18
NWLR Pt. 1110 Pg. 300.
RESOLUTION
The learned trial Judge held as follows on page 87 of the Record:
?The Plaintiff must be paid for his suffering for no fault of his?
Whatever word is used to describe the injuries suffered by a party which entitled him to a remedy in damages is immaterial.
The claim before the trial Court has already been set out above. On this head of complaint, learned Appellant?s Counsel is not yet complaining about the finding of the trial Court but on the way in which the award of damages was couched by the trial Judge. I must say that the order complained of did not affect the substance or merit of the findings of the trial Court as made out from the Respondent?s pleadings and evidence. See Suleman V. C.O.P. Plateau State (2008) 8 NWLR Pt. 1089 Pg 298 at Pg. 318.
It is the ?inconveniences? suffered by a party that is the yardstick for the award of damages to a party. See also Abah v. Jabusco (Nig.) Ltd (2008) 3 NWLR (PT 1075) Pg 526 at Pg 568. The award of N500,000.00 to the Respondent is for his sufferings or inconveniences during his arrest and detention in Police
custody for six days on the instigation of the Appellant. The use by the learned trial judge of the word “suffering” is of no moment and when considered within the con of the reasoning of the trial judge, the word is not out of place. I feel strongly that it is mere grasping at straws to argue that the Court gave the Respondent what was not asked for. The Court is not bound to use at every time the word or phrase used in the claim. The trial Court’s order for payment of N500,000.00 to the respondent was in my humble view properly made. This issue is resolved against the Appellant.
ISSUE TWO
WAS THE APPELLANT’S CONSTITUTIONAL RIGHT OF APPEAL NOT INFRINGED BY THE COURT ORDERING THAT THE JUDGMENT DEBT BE PAID WITHIN 40 DAYS.
Learned Appellant’s counsel argued that the decision is final and the appeal therefrom is as of right to the Court of Appeal. He cited Section 241 (1) (a) (b) and (c) of the Constitution, Section 243 of the Constitution. Counsel drew our attention to Section 241 (1) & (2) and Section 25 (2) (a) of the Court of Appeal Act 2004 which stipulates time to appeal
to this Court from any trial Court or Tribunal to be 90 days.
Counsel submitted that the order of the learned trial Judge that the Judgment debt be paid within 40 days is an Order which wrongly short changed or curtailed the constitutional rights of appeal of the Appellant. Counsel cited GOV. KWARA STATE v. OJIBARA (2006) 18 N.W.L.R. PART 1012 Pg 645 AT Pg 650.
Learned Respondent’s counsel in reply argued also that the Appellant who complained about the Order to pay the judgment sum within forty (40) days has not paid the judgment debt more than three (3) years after the delivery of the judgment on 20th May, 2019.
Counsel cited Okoli v. Udeh (2008) 10 NWLR Pt. 1095 Pg. 213 at 272. He urged the Court to ignore the technical issues raised by the Appellants in favour of substantial justice. Counsel cited S.I.E.C Ekiti v. MCP (2008) 15 NWLR Pt. 1102 Pg. 720 at 742.
RESOLUTION
In the first instance, a judgment debt becomes payable immediately judgment is delivered subject to the provisions of the Sheriffs and Civil Process Act (or Law of the State). An appeal, where lodged does not operate as a stay of execution.
Until a prayer for stay of execution is made and obtained, the judgment creditor is entitled to enforce the judgment. In this case, this is a money judgment. The Supreme Court held in Chief M.O. Olatunji v. Owena Bank Plc (2008) 8 NWLR Pt. 1090 Pg 668 that unless the Court otherwise orders, a judgment of Court to pay money takes effect from the day it is pronounced or delivered in Court. However, the Court at the time of making any judgment or order, or at any time afterwards, may direct the time within which the payment or other act is to be made or done. A person directed by Decree or Order of Court to pay money or to do any other act is bound to obey the decree or order without any other demand for payment or performance, and if no time is therein expressed, he is bound to do so immediately the decree or order is pronounced. Given the state of the law, the fact that the learned trial Judge gave a time limit to pay the Judgment debt is of no moment in so far as there is no pronouncement inhibiting the right of appeal or any other rightful measure the Appellant could take to evade the Judgment debt. This issue is resolved against the Appellant.
Issues 3
and 4 can be answered by the way Issue 4 was couched. Is the judgment against the weight of evidence in the circumstances?
On this Issue, learned Appellant’s counsel argued that the learned trial judge gave the impression in the judgment that it was the duty of the Defendant to arrest and detain the officer of the Citizens International Bank. Counsel argued that all the defendants did was to make a report to the Police on observing that it is not banking practice for any bank to issue a draft to be paid in a town that they do not have a branch. Counsel argued that the report was made because such transaction is suspect. It is legal and constitutional for a report to be made to the Police. Once the Defendant had made a report as a law abiding citizen/corporation he became funtus officio with regard to the investigation of the matter and arrest of suspects. Counsel argued that a defendant even where he disagrees with Police method of investigation is powerless to intervene. The complainant cannot give instructions to the Police on how to conduct their investigations. Learned counsel argued that the Respondent should have joined the Police or even
sued the Police as a Defendant to the action to make the Police actually culpable for the arrest of the Respondent. Counsel argued that the defendant having brought to the notice of the Police their suspicion, it becomes a matter for the Police to decide what action they should take on the report or complaint. Whereas in this case, the police decided on an action on their own initiative which ultimately proved to be injurious to the person against whom a report was made, it is the police that should be held responsible. Counsel cited OWOMERO v. FLOOR MILLS (NIG.) LTD. (1995) 9 NWLR Pt. 421 Pg 622 at Pg 624. ONAH v. OKENWA (2010) 7 NWLR Pt. 1194 Pg. 512 at 517
GBAJOR v. OGUNBUREGUI (1961) ALL N.L.R. Pg. 853 at Pg. 856.
Learned Appellant’s counsel submitted that the Judgment of the Lower Court is against the weight of evidence. Counsel argued that only Citizens International Bank could have known the purchaser of the draft as only the beneficiary’s name Exton Industries is shown on the draft therefore the Appellant could not have known the name of the beneficiary. Counsel submitted that the evidence of
the Respondent that the Police told him that Zenith Bank instructed his arrest and torture is mere hearsay which the trial Court should not have relied on. Counsel submitted that the cause of action should have been against the police. Counsel cited Onah v. Okenwa (2010) 7 NWLR Pt. 1194 Pg. 512 at 517. Counsel also submitted that there was no nexus between the Respondent and the Appellant even if there was a contractual relationship between the Respondent and Citizens International Bank; there is no privity of contract between the Appellant and the Respondent. Counsel further cited.
(1) F.A.T.B LTD. v. PARTNERSHIP INV. COY. LTD. (2001) 1 NWLR Pt 695 Pg. 517 at Pg. 519. (2) A-G FEDERATION v. A.I.C. LTD. (2000) 10 NWLR Pt 675 Pg. 293 AT pg. 297 TO 298.
Counsel submitted that we should re-evaluate the evidence at the trial Court and come up with a different conclusion to dismiss the Respondent?s claim.
The Respondent did not make a direct response to this issue as raised and argued by the Appellant.
RESOLUTION
The learned trial Judge held on page 87 of the record as follows:
“The banker was not interrogated. He was not arrested for shoddy transaction. Our people suffer a lot. The person who reported the matter to Nigeria Police without doing the bank to bank internal investigation to establish whether the plaintiff was fraudulent or not erred in law. Lack of proper and adequate investigation between the banks caused all the trouble. The bank was never told that the man had less than the amount for the draft in his Bank Account. He had enough money. What is his fault. The banker who prepared the draft without finding out whether the bank he prepared draft for exists in Ibadan or not committed the blunder not the plaintiff. The plaintiff must be paid for his suffering for no fault of his.”
In the first instance, I cannot put the same interpretation the learned Appellant’s counsel did on the learned trial Judge’s opinion to say that the learned trial Judge found that it was the duty of the Appellant to arrest and detain the officers of the Citizens International Bank. That contention is a non issue.
False imprisonment involves the unlawful and unjustifiable restraint of a
person’s right and liberty to move about freely. The tort of false imprisonment consists of the acts of arrest and detention or imprisonment of a plaintiff without lawful justification by the police or other law enforcement agencies on complaints or information received in the course of their duties. The position of the law is that it is not enough for a plaintiff in a claim for false imprisonment to plead and provide evidence that the defendant merely made a report against him to the police in which his name was mentioned as a suspect, but must also plead and establish that there are no reasonable and probable cause for making the report. In other words, a plaintiff has the legal burden of showing that there was no reasonable and probable cause for making the report and that the report is false, frivolous without foundation and actuated by malice. See Bayol v. Ahemba (1999) 7SC Pt. 1 Pg. 92; (1999) 10 NWLR Pt. 623 Pg. 381; UAC v. Bobodu (2006) LPELR ? 7740 (CA). The malice envisaged here is that of a wrongful act intentionally done, and not that of malice in the con of malicious intent.
?
When it comes to the tort of imprisonment, 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. See Bank of West Africa v. Odiatu; Mandilas and Karaberis v. Apena (1969) All NLR 390, Isheno v. Julius Berger Nig. Plc (2008) 6 NWLR Pt. 1084 Pg. 582.
There is no doubt that in the circumstances of this case, the Appellant had no reasonable cause to make a report to the Police which was equivalent to an accusation of forgery. This incident happened in 2002. There were several means of communication between Bankers. After a draft of Citizen?s International Bank was presented to Zenith Bank at Ibadan, the Bank suspecting it might be a forgery was obliged to make further enquiries from its fellow banker who ostensibly made the draft. If after this had been done, the Citizens Bank denied the issuance of the draft, then, the Appellant would have been justified to make a report to the Police. It was the duty of the Appellant to do due diligence on the issue before actually making a report to the Police which triggered the arrest and detention of the Respondent. As
at the time the report was made to the police there was no reasonable or probable cause to do so bearing in mind the fact that the information needed to clear up the issue was within the purview of the banker who made the report to the police. The Police would have asked the Citizens International Bank, the question the Appellant should have asked the Bank in the ordinary course of business to clear up a transaction. After all, it was after the Appellant asked the right question from the right people that she cleared the draft and paid the money due on the draft.
Meanwhile the Respondent had been deprived of his liberty by the Police for six days and all the attendant suffering that Police action entailed. I quite share the sentiments of the learned trial judge that the Appellant’s action in reporting the matter to the Police without diligently making an effort to resolve what would ordinarily be a banker?s mistake in a banking transaction was a wrongful act, intentionally done. Both issues are resolved against the Appellant.
I find no merit in this appeal. The appeal is dismissed. The Judgment of Hon. Justice C.C. Mbanugo delivered on
20/5/09 in Suit No. 0/312/2002 is hereby affirmed. N100,000 costs to the Respondent against the Appellant.
TOM SHAIBU YAKUBU, J.C.A.: I read the draft of the judgment rendered by my Lord, HELEN MORONKEJI OGUNWUMIJU, JCA. I am in complete agreement with the lucid reasoning and the conclusion reached therein, to the effect that this appeal, is lacking in merits and should dismissed.?
I have nothing more useful to add to it. I, too dismiss the appeal and affirm the judgment of C. C. Mbanugo, J, delivered in re-Suit No.0/312/2012.
I, endorse the award N100,000 costs to the respondent against the appellant.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment delivered by my Learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA. I agree with reasoning, conclusions and orders therein.
Appearances
E. O. OFODILE WITH HIM, C. O. CHIUGBOFor Appellant
AND
SUNDAY OKOYE HOLDING THE BRIEF OF CHINWEIKE OBI ORJIFor Respondent
