F.M.C.G. DISTRIBUTION LIMITED v. NUHU IBRAHIM BONIFACE
(2019)LCN/12720(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of February, 2019
CA/K/435/2015
RATIO
COURT AND PROCEDURE: DUTY OF APPELLATE COURT
“Indeed an Appellate Court will only interfere with the findings of facts of a trial Court if it is satisfied that the lower Court did not make use of the advantage of seeing the witnesses or the findings are perverse, or where the Court has applied the wrong principles of law. See WOLUCHEM V. GUDI (1981) 5 SC 291 at 326; BAMISHEBI V. FALEYE (1987) 2 NWLR PART 54 p. 51. That was not the case here. Issue 1 is resolved against the Appellant.” PER OBIETONBARA O. DANIEL-KALIO, J.C.A.
JUSTICES
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
F.M.C.G. DISTRIBUTION LTD – Appellant(s)
AND
NUHU IBRAHIM BONIFACE – Respondent(s)
OBIETONBARA O. DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment):
The appeal here is over the judgment of the Kano State High Court (the lower Court) presided over by P.A. Mahmoud J (as she then was) delivered on 27/12/14. The Respondent Nuhu Ibrahim Boniface was the plaintiff at the lower Court. He sued FMCG Distribution limited, the Appellant. The Respondents’ case against the Appellant at the lower Court is here summarised. The Respondent was an employee of the Appellant. On 1/3/13 one Mr. Gandhi Anandan the Appellant’s sales and Marketing Director and one Mr. Prem Prakash the Appellant?s regional manager, instructed one Mrs Kechi Uma, one Mr. Onazi and one Mr. Muktar, all employees of the Appellant, not to allow the Respondent leave the Appellant’s regional office at No. 14 Ibrahim Dabo road, Kano. Under restriction of his movement at the said regional office of the Appellant, the Respondent was subjected to repeated threats that he would be handed over to the Police unless he confessed in writing that he was indebted to the Appellant. He was also compelled while so restricted, to state in writing that he was committing his wife’s Toyota Carina car to serve as security for the repayment of an alleged indebtedness to the Appellant. The Appellant later went to the Respondent’s house in Abuja and took away the Toyota Carina car of the Respondent’s wife. As a result of the facts just summarised, which facts are gathered from the Respondent’s Statement of Claim, the Respondent claimed as follows: –
(a) N5 million damages for false imprisonment and violation of his right to dignity of his human person.
(b) A mandatory order releasing the Toyota Carina Salon car with registration No. BQ 693 GWA (Abuja).
(c) N1 million for trespass.
(d) N1 million for detinue.
(e) A written apology to the plaintiff.
(f) Cost of this action.
The Appellant responded by filing a Statement of Defence and Counter-Claim. The Appellant averred in the counter-claim that the Respondent misappropriated the sum of N924,350.00 and was asked to refund same or be handed over to the police. It was the Appellant’s case as averred in the Statement of Defence, that the Respondent called his Naval Officer brother in Lagos in which his brother undertook to pay part of the Respondent?s indebtedness. The Appellant also averred that the Respondent voluntarily confessed his indebtedness to the Appellant and the Respondent out of his own volition and free? will gave his Toyota Carina car as security for the sum of N638,000.00 on the condition that the car be sold if the indebted sum was not paid by 4/3/2013. The Appellant denied detaining the Respondent. By way of counter-claim, the Appellant sought the following reliefs against the Respondent: –
(a) The sum of N638,000.00 being the balance of money misappropriated by the plaintiff in the course of his employment with the defendant.
(b) The sum of N1,276,000.00 being the loss of profit that would have accrued to the defendant had it been transacting [business] with the N638,000.00 from 1st March 2013 to 31st December, 2013 and subsequently, the sum of N150,000.00 per month from January 2014 till the debt is fully paid to the defendant.
(c) The cost of this counter-claim.
After reviewing the evidence and considering the law, the lower Court found in favour of the Respondent and granted all the reliefs claimed by him except the one demanding for a written apology from the Appellant. The Appellant?s counterclaim was dismissed by the lower Court.
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal. The extant Notice of Appeal is the one filed on 4/6/18 and deemed filed and served on that date. The Appellant by the Notice of Appeal, challenged the judgment on five grounds.
The parties filed and exchanged Briefs of Argument. The extant Appellant’s Brief of Argument is the amended Appellant’s brief of Argument filed on 28/3/18 and deemed properly filed and served on 4/6/18 by an order of this Court of even date.
The Appellant also filed a Reply Brief of Argument on 17/1/17. It was deemed by an order of this Court of 28/11/18 as properly filed and served on that date. The Appellant’s amended Brief of Argument as well as the Appellant’s Reply Brief of Argument were settled by Abubakar Muhammed Esq. The Respondent’s Brief of Argument was filed on 1/11/16 and deemed filed and served on 28/11/18 by an order of this Court. The Respondent’s Brief was settled by Ishaku I. Garba Esq.
Four issues for determination in this appeal were distilled from the grounds of appeal by the Appellants learned Counsel. The issues are: –
1. Whether the learned trial Judge of the lower Court was right in law when he held that the Respondent has proved the tort of false imprisonment against the appellant;
2. Whether the learned trial Judge of the lower Court was right in law when he held that entering the Respondent?s house in Abuja by the Appellant was wrongful and amounted to trespass;
3. Whether the learned trial Judge of the lower Court was right in law when he held that the Respondent has on the balance of evidence, proved the tort of detinue against the Appellant;
4. Whether the learned trial Judge of the lower Court was right in law when he dismissed the Appellant’s counter -claim.
On his part, the Respondent formulated the followings two issues for determination: –
1. Whether the Respondent proved his case at the trial Court as to be entitled to the Judgment entered in his favour by the learned trial Judge.
2. Whether the Appellant proved its counter-claim as to be entitled to Judgement thereon.
The issues formulated by the Appellant spring from the grounds of appeal and are lucidly and succinctly stated. I will therefore consider this appeal by considering the issues formulation by the Appellant.
On issue 1 which deals with the question of false imprisonment of the Respondent, the Appellant’s learned Counsel submitted that in order to establish the tort of false imprisonment, it has to be shown that it was the defendant that instigated the law against the plaintiff. He cited the cases ofBORNO STATE GOVERNMENT V. ASIEK (2007) ALL FWLR PART 357 p. 1006; IGALI V. LAWSON (2005) ALL FWLR PART 262 p. 563; OKONKWO V. OGBOGU (1996) 5 NWLR PART 449 p. 420. Learned Counsel contended that the Respondent did not prove false imprisonment. He referred to page 41 of the printed record where the Respondent stated that at the time of his problem with the Appellant he was staying at the Appellant’s Guest House. That evidence of the Respondent, he submitted, was corroborated by the evidence of PW2 at p. 42 of the printed record. Further, it was submitted that the mere fact that the Appellant threatened to lodge a complaint to the Police, did not make the Appellant to be liable for false imprisonment. Finally on this issue, the Appellant”s learned Counsel submitted that the lower Court was wrong to have held that false imprisonment was established.
In his argument in response the Respondent’s learned Counsel cited Clerk and lindsell on Torts 17th Edition, Blacks Law Dictionary 8th Edition and the Law of Torts by Kodilinye and Aluko with regards to the definition of false imprisonment. He also referred to the case of UNION BANK (NIG) LTD V. ALAGU (1990) 1 NWLR PART 126 p. 328. Learned counsel referred to paragraph 3 of the Respondent’s Statement of Claim wherein he averred that he was unlawfully detained and falsely imprisoned by the Appellant. He also referred to paragraphs 13 and 14 of the same Statement of Claim and to the evidence of PW2. He contended that the evidence led by the Respondent established the averment in the pleadings on false imprisonment. It was submitted that the refusal of the Appellant to call Mr Gandhi Anandan or Mr. Prem Prakash or Mr. Onazi or Mr. Muktar Ibrahim or Mrs Kelechi Uma amounted to withholding of evidence within the meaning of Section 167 (d) of the Evidence Act 2011 as their evidence would have shown whether or not the Respondent was falsely imprisoned.
He cited the case of DADO V. NUMSHUWAN (1991) 8 NWLR PART 212 p. 696 at 702.
Now, in the case of AFRILEC LTD & ORS V. LEE (2012) LPELR – 7822 (CA), this Court adopted the definition of false imprisonment by the learned authors of Clerk and Lindsell on Torts 14th Edition at p. 681 where the learned authors defined false imprisonment thus: –
A false imprisonment is complete deprivation of liberty for anytime howsoever short, without lawful cause.
Imprisonment is no other thing but the restraint of a man’s liberty whether it be in 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 goolie and in all the places the party so restrained is said to be prisoner so long as he hath not his liberty freely to go at all times to all places whither he will without bail or otherwise. The prisoner may be confined within a definite space by being under lock and key or his movement may simply be constrained by the will of another?. See also ARAB CONTRACTORS (O.A.O.) NIGERIA LTD. V. UMANAH (2013) 4 NWLR PART 1344 p. 323; AGBALUGO & ANOR V. IZUAKOR (2017) LPELR ? 43289 (CA). The definition of false imprisonment therefore covers a wide and diverse spectrum of restraint of a person against his will in circumstances not justified or permitted by law. In the Respondent’s case, he averred that he was confined or restrained against his will in the Appellant’s Guest House. By the definition of false imprisonment, it did not matter as argued by the Appellant’s learned Counsel that the Guest House, served as the Respondent’s accommodation. The Respondent led evidence that right there in the Appellant?s Guest House, named employees of the Appellant were given strict instructions not to let him get out of the gate. There was evidence that even when the Respondent?s solicitor came to visit him at the Guest House, someone stood by as a sentry while the said solicitor had discussions with the Respondent.
The Appellant’s learned Counsel cited a number of cases while contending that in an action for false imprisonment a plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against the plaintiff. That contention supports a case where a defendant reports a matter to the police consequent upon which the plaintiff is detained by the police. The law is that in such a situation, the defendant will be liable for false imprisonment if it is proved that the defendant was actively instrumental in setting the law in motion against the plaintiff. In the case of OKONKWO V. OGBOGU (Supra) for example, the pleadings showed that on or about the 4th day of May, 1982, as a result of a case of willful and unlawful damage reported by the 1st defendant to the Asaba Police on the 2nd May, 1982, the 2nd defendant came to the house of the plaintiff and arrested him (plaintiff). In that scenario, it was held that the plaintiff must show that the defendant was actively instrumental in setting the law in motion against the plaintiff. The scenario here is not similar to the scenario in OKONKWO V. OGBOGU (Supra) and the principle applied in that case does not have any relevance in the case on appeal here.
After carefully evaluating the evidence before it, the lower Court came to the following decision at p. 171 and 172 of the printed record: –
‘the unchallenged evidence of the plaintiff which I believe, is that the defendant used its authority as the employer to use the plaintiff’s co-workers to restrain the plaintiff within the defendants guest house. The cases of IGALI V. LAWSON (Supra) andUBN V. AJAGU (1990) 1 NWLR PART 126, 328 as cited by the plaintiff’s Counsel is applicable.
As the Court of Appeal held in the case ofUBN LTD V. AJAGU (Supra) every restraint of the liberty of a free man is an imprisonment even if he was not restrained within the walls of any common prison. It is therefore irrelevant that it is the plaintiff’s guest house or that in fact he was living there. It is sufficient as the uncontroverted evidence of the plaintiff shows, that the defendant had used some staff specifically Mrs Kelechi Uma and Messrs Onazi and Muktar Ibrahim to restrain the plaintiff from leaving the said guest house. I am satisfied on the balance of evidence before the Court that the plaintiff has proved the tort of false imprisonment against the defendant?.
It is clear to me that the learned trial judge properly evaluated the evidence before the Court before arriving at the above reasoned conclusion. I have no reason to disturb the decision. Indeed an Appellate Court will only interfere with the findings of facts of a trial Court if it is satisfied that the lower Court did not make use of the advantage of seeing the witnesses or the findings are perverse, or where the Court has applied the wrong principles of law. See WOLUCHEM V. GUDI (1981) 5 SC 291 at 326; BAMISHEBI V. FALEYE (1987) 2 NWLR PART 54 p. 51. That was not the case here. Issue 1 is resolved against the Appellant.
On issue 2 which is concerned with wrongful trespass, the Appellant?s learned Counsel contended that Exhibit 5 automatically authorised the Appellant to enter the Respondent?s house at Abuja and take possession of the Toyota Carina Car of the Respondent. It was submitted that the Respondent was not deprived of the use of his house and that the Appellant did not make use of the Respondent?s house. It was submitted that the Respondent was not wholly deprived of his house to warrant compensation for a period of deprivation. It was finally submitted by the Appellant’s learned Counsel on this issue, that the lower Court was wrong to have awarded the sum of N450,000.00 to the Respondent as damages for trespass.
In his argument in response, the Respondent’s learned Counsel referred to the definition of trespass by the learned authors of Clerk and Lindsell on Tort. The Appellant, it was submitted, did not deny entering the Respondent?s house at Abuja to take possession of the Toyota Carina Car. It was contended that Exhibit 5 relied on by the Appellant to justify the entry into the Respondent’s house was not made voluntarily by the Respondent and that the Respondent also did not make Exhibits 3 and 4 voluntarily. It was submitted that the Appellant’s entry into the Respondent’s house in Abuja was wrongful and unjustified and amounted to trespass. The case of OLAYINKA V. OKE (2003) FWLR PART 185 p. 440 at 450-451 was cited in support. The cases ofAMAYO V. ERINMWINGBOVO (2001) 2 NWLR PART 696 p.1 and OYADEJI V. ADENLE (1993) 9 NWLR PART 316 p. 224 were also cited in support.
As stated by this Court in the case of AMAYO V. ERINMWINGBOVO (SUPRA), trespass is the invasion, even if it is ever so minute, into the land of another and it is actionable per se. See also OYADEJI V. ADENLE (1993) 9 NWLR PART 316 p. 224. A critical look at Exhibit 5 which Appellant’s learned Counsel submitted is an authorization of the Appellant to enter the Respondents’ house in Abuja and take possession of the Toyota Carina car, will reveal that it gave no such authorization to the Appellant. What Exhibit 5 did not state cannot be imported into it. In the case of INCORPORATED TRUSTEES OF NIGERIA BAPTIST CONVENTION & ORS V. GOV. OF OGUN STATE (2016) LPELR 41134 (CA) this Court held that a Court saddled with the duty of constructing a document should restrict itself to the words used in the document and that words or ideas not patent on the face of the document should not be imported into it. There is nowhere in Exhibit 5 where it is stated that the Appellant is authorised to go to the Respondent’s house in Abuja. I therefore agree with the lower Court where it held that ‘Exhibit 5 cannot be a defence to the claim of trespass by the plaintiff because it has nothing to do with it. There is nothing in Exhibit 5 that authorized the defendant to enter into the plaintiff’s house in Abuja’. By going into the Respondent house without the authority of the Respondent, the Appellant was in trespass.
Issue 2 is also resolved against the Appellant.
On issue 3 which is whether the Respondent proved the tort of detinue against the Appellant, the Appellant?s learned Counsel submitted that the tort of detinue was not proved because it was the Respondent who voluntarily handed over custody and possession of his car to the Appellant through the instrumentality of Exhibit 5. It was submitted that the voluntariness or otherwise of exhibit 5 was not an issue at the lower Court and consequently the lower Court was wrong when it held that Exhibit 5 was not made voluntarily. It was contended that DW1 and DW2 testified that the Respondent handed over his car to the Appellant as security for repayment of money misappropriated by the Respondent and that the evidence of the said DW1 and DW2 was not shaken under cross-examination and found corroboration in Exhibit 5.
In his argument in response, the Respondent’s learned Counsel contended that exhibit 5 was obtained from the Respondent under duress while he was under the Appellant’s detention. In the circumstances, learned Counsel argued, the seizure and retention of the Respondent’s car by the Appellant was wrong and unlawful. We were referred to the case of SALBA V. YASSIN (2002) FWLR PART 94 p. 168 at 169 on what is required to establish a case of detinue. Learned Counsel referred to Exhibit 1, a letter of the Respondent?s solicitor demanding the release of the Respondent’s car.
Now, in the case of KOSILE V. FOLARIN (1989) NWLR PART 107 p. 1; (1989) LPELR ? 1705 (SC), the Supreme Court stated that in an action for detinue, the gist of the action is the unlawful detention of the plaintiff?s chattel which he has an immediate right to possess after the plaintiff has demanded its return. In paragraph 15 of the Respondent?s Statement of Claim, the Respondent averred that his solicitors, Messrs Garba & Okeke & Co wrote a letter on 5/3/13 demanding the release of the car of his wife. Exhibit 1 is that letter of the Respondent?s solicitors. In paragraph 13 of the Appellant’s Statement of defence, the Appellant merely denied paragraph 1 of the Statement of Claim and put the plaintiff to the strictest proof of his averment. In paragraph 14 of the Statement of Defence, the Appellant relied on the letter of its own solicitors in response to the Respondent’s solicitor’s letter. Now, from the authority of KOSILE V. FOLARIN (Supra) the Tort of detinue is triggered after a demand has been made by a person who has an immediate right to possession. Clearly the Appellant did not release the Respondent’s car after the Respondent had demanded its release. Instead of releasing it, it justified retaining it based on the fact that the Respondent wrote Exhibit 5 admitting his indebtedness to the Appellant.
Exhibit 5 is not the judgment of a Court of law giving the Appellant a lien over the car. At best Exhibit 5 is a document that can be tendered in Court to prove the Appellant’s case. By holding onto the Respondent’s car after the Respondent demanded its return, the Appellant resorted to self-help. If indeed the Respondent was indebted to the Appellant, the way to get back its money is to go to Court against the Respondent to recover the debt. The Appellant cannot proceed to assume the position of judge and executioner all rolled into one. I agree with the lower Court that the Respondent proved the tort of detinue. Issue 3 is also resolved against the Appellant.
On the 4th and final issue which is whether the lower Court was right to have dismissed the Appellant’s counterclaim, the Appellant’s learned Counsel submitted that the Respondent admitted under cross-examination when he testified, that he was indebted to the Appellant. The lower Court, it was contended, was wrong to have dismissed the Appellant’s counter-claim on the ground that it is an item of special damages.
In his argument in response, the Respondent’s learned Counsel referred to the counter-claim of the Appellant and submitted that misappropriation of money was an issue and that misappropriation being criminal in nature, the required proof of same is proof beyond reasonable doubt as required by Section 135 (1) of the Evidence Act, 2011. On the counterclaim of the sum of 1,276,000.00 claimed as loss of profit, it was submitted that the claim is speculative and is also in the nature of a claim for special damages which require it being specifically pleaded and proved. The case of SPDC (NIG) LTD V. HIGH CHIEF G.B.A. TIEBO VII & ORS (1996) 4 NWLR PART 445 p. 657 at 680 was cited in support.
The Appellant’s learned Counsel appears to be hinging the proof of the Appellant’s counter-claim on the fact that the Respondent admitted under cross-examination that he was indebted to the Appellant. Now, even in his pleadings, the Respondent did not deny that he was indebted to the Appellant. In paragraph 7 of his Statement of Claim he averred that he owed the Appellant the balance of a rent loan received from the Appellant. He stated as much in his Statement on Oath. That admission of debt however did not amount to proof of the Appellant’s counter-claim. For ease of reference, the counter-claim reads:-
(a) The sum of N638,000.00 being the balance of money misappropriated by the plaintiff in the course of his employment with the defendant.
(b) The sum of N1,276,000.00 being the loss of profit that would have accrued to the defendant had it been transacting [business] with the N678,000.00 from the 1st March 2013 to 31st December, 2013 and subsequently the sum of N150,000.00 per month from January, 2014 till the debt is fully paid to the defendant.
(c) The cost of this counter-claim.
Claim (a) above of N638,000.00 according to the Appellant arose from misappropriation by the Respondent.
That being the case, crime is directly in issue, and by Section 135 (1) of the Evidence Act, the Appellant must proof beyond reasonable doubt that the sum of N638,000.00 was misappropriated. See alsoADELEKE FARIU AREBI V. IBRAHEEM ADEBOLA MOSHOOD GBABIJO & ORS (2008) LPELR 3803 (CA). The Appellant did not prove that the sum of N638,000.00 was misappropriated by the Respondent, talk less of proving same beyond reasonable doubt.
What is more, the Appellant was not consistent in the amount it claimed was misappropriated by the Respondent. In paragraph 3 of the Statement of Defence, it pleaded that the sum of N924,350.00 was misappropriated by the Respondent only to turn round to state in the counter-claim that the sum of N638,000.00 was misappropriated by the Respondent. On inconsistency in pleadings, the Supreme Court was forthright on the position of the law when it stated matter of factly in the case of AKINSUROJU V. JOSHUA (1991) 4 NWLR PART 187 p. 542 that: –
it is manifest that in no way could the plaintiff prove their case since the pleadings had been inconsistent?.
On the basis of the inconsistent pleadings also, the counter-claim of N638,000.00 was not proved.
On the claim for loss of profit, I need not go further than to cite the case of MATHIAS UMEANOZIE V. FIRST BANK OF NIG PLC (2016) LPELR ? 41038 (CA) where this Court per Agim JCA stated thus: –
‘The fact of loss of profit must be particularly pleaded, particularized and strictly proved with arithmetical exactitude’.
The Appellant did not particularize the loss of profit claimed and ipso facto could not prove strictly and with arithmetical exactitude the loss of proof claimed. Issue 4 is also resolved against the Appellant. The result is that the appeal is devoid of merit. It is dismissed. I award N100,000.00 costs against the Appellant.
IBRAHIM SHATA BDLIYA, J.C.A.: I agree.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read in advance the lead judgment delivered by my learned brother, Obietonbara O. Daniel-Kalio, JCA.
My Lord has meticulously and convincingly dealt with all the vital issues for consideration in this appeal.
Therefore, I adopt the conclusion reached by him that this appeal is devoid of merit, and is dismissed.
I abide by my Lord’s order as to costs.
Appearances:
Abubakar Muhammed, Esq.For Appellant(s)
Ishaku I. Garba, Esq.For Respondent(s)
