DONATUS OKAFOR v. IFEANYI ISIADINSO
(2014)LCN/7108(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of April, 2014
CA/E/151/2007
RATIO
CONDITIONS TO BE PROVEN BY A PARTY WHO COMPLAINS THAT THE TRIAL COURTS FINDINGS OF FACTS ON THE BASIS OF ITS BELIEF OR DISBELIEF OF ANY WITNESS IS WRONG
A party who complains that the trial courts findings of facts on the basis of its belief or disbelief of any witness is wrong, has to show why it is wrong. As the Supreme Court held in BAKARE V. THE STATE (1937) 3 SCI, there is a well settled presumption that the findings of fact of the court of trial are correct and the burden is on the person challenging the finding of facts on appeal to displace this presumption. This duty is not discharged by the mere assertion that it is wrong. The party must show by reference to the evidence that the belief or disbelief is against the logical drift of the evidence. It is not enough to merely assert that it is not supported by the evidence. PER EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
DONATUS OKAFOR Appellant(s)
AND
IFEANYI ISIADINSO Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): On 1-3-2000, the respondent herein, as plaintiff filed a writ of summons commencing suit No A/64/2000 in the High Court of Anambra State in the Awka Judicial division at Awka against the appellant herein as defendant, claiming for the sum of N1,000,000.00 (one million naira) as general damages for false imprisonment. Both sides filed and exchanged pleadings. The plaintiff’s statement of claim is dated 20-2-2001 and filed on 28-2-2001. The defendant’s statement of defence is dated 20-3-2001 and filed on 22-3-2001.
The plaintiff testified as PW3. Two other persons testified as PW1 and PW2 in support of the plaintiffs case. The defendant testified as DW1. One other person testified as DW2 in support of the defendant’s case. Following the conclusion of evidence, both sides filed, exchanged and adopted written addresses.
On 31-3-2006, the trial court rendered judgment in favour of the plaintiff and awarded the sum of N150,000.00 as damages for false imprisonment and cost of N3,000 in favour of the plaintiff.
Dissatisfied with this judgment, the defendant on the 24-4-2006 filed a notice of appeal dated 24-4-2006 containing one ground of appeal and on 6-6-2006 filed a second notice of appeal dated 5-6-2006 containing ten grounds of appeal. The record of this appeal was received in this court on 21-5-2007, thereby entering this appeal No CA/E/151/2007 in this court.
The appellants brief of argument dated 29-2-2008 was filed on 3-3-2008. By a motion on notice dated and filed 2-10-2008, the appellant applied for an order directing that the appeal be heard only on his brief of argument as the respondent had not filed his brief of argument within the prescribed time. By a motion on notice dated 27-2-2009 and filed on 3-3-2009, the respondent applied for an order extending the time within which he can file his brief of argument in this appeal. On 13-2-2013 this court heard the respondent’s motion and granted him extension of time to file his brief of argument. On 16-1-2014 the appellant withdrew his motion on notice dated and filed 2-10-2008 and the same was struck out by this court. The respondent did not file his brief of argument. This appeal was heard only on the appellants brief of argument.
In his brief of argument, the appellant indicated that he was abandoning the notice of appeal dated and filed on 24-4-2006 and urged this court to strike it out. The notice of appeal dated and filed on 24-4-2006 having been abandoned is hereby struck out.
The appellant in his brief of argument raised the following issues for determination-
1. Whether the trial court was right in not considering the issue of non joinder of the Police which is fatal to the claim of the plaintiff/respondent (see grounds 1 and 2 of the Notice of Appeal).
2. Was the appellant instrumental in instigating the Police to cause the arrest and detention of the plaintiff/respondent, which the appellant was found liable by the trial judge. (grounds 4, 5 and 6 of the Notice of appeal).
3. Did the trial court place the proper burden of proof on the parties before the trial court believed the evidence of the respondent that the respondent was detained on 18-4-99 until 2 pm on 19-4-99 hence the defendant/appellant was found liable for false imprisoned.
4. Whether the burden of proof in a proceeding is discharged by a generalization of the evidence adduced by the parties and permanently placing the onus of proof on the defendant/appellant as was done by the trial judge.
5. Whether the trial court was right in awarding the sum of NI50,000.00 as damages in favour of the respondent (ground 10 of the Notice of Appeal).
I will determine this appeal on the basis of the issues raised for determination in the appellant’s brief. The Learned Senior Advocate for the appellant argued under issue No 1 that the trial court did not consider the argument in the written address of Learned counsel for the appellant at the trial proceedings that “the Police” who were alleged to have arrested and detained the respondent were not made parties to the Suit and that it was bound to consider all the issues raised by the parties which are germane and relevant to doing justice in a case. He submitted that “the Police’ is a necessary party and must be found liable for false imprisonment before the liability of the appellant for false imprisonment on account of the arrest and detention of the respondent by the Police can arise. The Learned Senior Advocate for the appellant further submitted that the failure of the trial court to consider the issue of non-joinder of the Police deprived the appellant the right of fair hearing of his case in that if the trial court had considered it, the appellant would not have been found liable. He also submitted that the failure to consider the issue is a breach of the appellant’s right to fair hearing and is enough to cause the decision of the trial court to be set aside. He finally submitted on this point that the failure to join the Police as a party to the suit at the trial court was fatal to the case of the respondent.
It is glaring from the final written address of Learned counsel for the appellant at pages 27 to 29, particularly at page 29 of the record of this appeal that Learned Counsel for the defendant (now appellant) stated that “the court is invited to take judicial notice of the fact that the police who were alleged to have detained the plaintiff were not made parties in this appeal.”
Let me state here that the appellant did not clearly and distinctly raise the non joinder of the Police as an issue for determination in the trial proceedings.. It was tersely raised in passing, in one sentence, while arguing issue No. 2 in the final written address of the Learned Counsel for the defendant. Beyond the one sentence statement, Learned Counsel for the defendant said nothing. He merely invited the trial court to take judicial notice of the non joinder without more. He did not argue that the non joinder prejudiced his case in any way. He did not argue that the non joinder was fatal to the plaintiffs claim in any way. The argument of issue No 2 in the final written address of Learned Counsel for the defence is contained in 10 lines. In addition to inviting the trial court to take judicial notice of the non-joinder, it was argued that exhibit A (Police investigation Report) show that the police acknowledged that there was land dispute between the parties and this shows that the appellant’s complaint to the police was not actuated by malice nor was it false. According to Learned Counsel, if it were false, the Police would have charged the appellant for false information. Learned Counsel further argued that, all through the evidence elicited by the plaintiff no mention was made of the name of the Police officer who ordered the detention of the plaintiff. On the basis of the above submissions Learned counsel for the appellant, urged the trial court to hold “that the plaintiff’s claim is frivolous and a gold-digging exercise.”
The trial court in its judgment, while reviewing the evidence and addresses of both sides, restated all the arguments under issue No 2 of the said final written address of Learned defence Counsel. It extensively considered all the arguments under issue No 2 which included the statement on non joinder and resolved the issue in favour of the plaintiff. The one sentence statement about non-joinder was made in support of the said appellant’s issue No 2 at the trial. So the trial court having considered and determined issue No 2, I do not think that the argument of the Learned SAN for the appellant that the trial court did not consider the issue of non joinder of the police is valid. In any case, as I had held herein, no such issue was raised for determination in the address of Learned defence Counsel. No arguments were raised by the appellant from that statement for the trial court to consider.
In any case even if the issue of non joinder of the police is assumed to have arisen from that one sentence statement, I do not think that the failure of the trial court to specifically resolve it while determining issue No 2 in the final written address of the appellant caused any miscarriage of justice. This is because even if it had dealt with it and resolved it as an issue, its judgment would have remained the same. My reasons for this view are as follows. The appellant had in paragraph 9 of his statement of defence strangely admitted paragraphs 15, 16, 17, 18 and 19 of the respondent’s statement of claim. Paragraphs 15, 16, 17, 18 and 19 of the statement of claim state that-
15. “The land which the plaintiff allegedly cultivated upon is not in dispute. Even so, the said land belongs to Chief Okoye Isiadinso, 1st Defendant in the said suit No.A/31/1993.
16. The said report to police by the defendant was malicious and only designed to humiliate the plaintiff for no just cause.
17. Following the said arrest, and detention, the plaintiff’s return to Sapele was delayed by four (4) days. His business suffered because he lost many customers as well as old and new appointments. The plaintiff is over 60 years of age and married with children.
18. As a result of the matters aforesaid, the defendant caused the plaintiff to be wrongfully imprisoned and deprived of his liberty and subjected to great anxiety, humiliation and disgrace.
19. As a result of the matters aforesaid, the plaintiff has suffered loss and damage.”
Paragraph 9 of the statement of defence states that- “The defendant admits paragraphs 15, 16, 17, 18 and 19 of the statement of claim and put the plaintiff to strict proof thereof. In further answer thereto, the defendant avers as follows;-
(i) the land, subject matter of suit No.A/31/93; DANATUS OKAFOR V. OKOYE ISIADINSO & OTHERS belongs to the defendant. The defendant hereby pleads relevant documents including the plan filed in respect of the said suit.
(ii) The defendant’s report to the police at Abagana Police Station followed plaintiffs trespass into the said land which he (plaintiff) intended to cultivate in violation of Court Order before the police intervened to avert breach of the peace.
(iii) The plaintiff spends most of his time in Etiti-Osili village, Enugwu-tlkwu and occasionally visit his family in Sapele.”
The express admission of the above mentioned paragraphs of the statement of claim render meaningless the averments coming immediately after the said express admission in the same paragraph 9 of the statement of defence. The appellant having admitted that the land the respondent was cultivating when he was arrested, is not in dispute and belongs to the respondent’s brother, Chief Okoye Isiadinso, paragraph 9(1) and (11) became meaningless.
The appellant having in his pleading expressly admitted that he caused the respondent to be wrongfully imprisoned and deprived of his liberty and subjected to great anxiety, humiliation and disgrace, cannot validly argue that the non-joinder of the police is fatal to the respondent’s claim and that the appellant’s liability for false imprisonment can only arise after the determination of the Police liability for false imprisonment, as they, pursuant to the complaint of the appellant arrested and detained the respondent.
S. 2(2)(a) of the Torts Law Cap 140 Vol. 9 of the Revised Laws of Anambra State 1991 provide that liability for civil wrong may arise from an act which, without lawful justification or excuse is intended to cause harm, and does cause the harm complained of. The appellant in paragraph 9 admitted that his complaint to the police had no justification as the land the respondent entered into was not the land in dispute in the pending High court civil suit No A/31/93 and belonged to respondent’s brother, Okoye Isiadinso. He also admitted that the unjustified complaint was intended to cause the respondent to be wrongfully imprisoned, deprived of his liberty and subjected to great anxiety, humiliation and disgrace.
S. 121 of the Torts Law Cap. 135 Vol. Revised Edition of the Laws of Anambra State 1991 provides that any person who falsely imprisons another shall be liable to that other for a tort false imprisonment. S.122(b) of the same Law provides that an imprisonment shall be false if without lawful justification a person causes another’s liberty to be totally restrained for however short a time by the use of threat of force or by confinement.
It is glaring from the pleadings and the evidence particularly the appellants above express admission and the provisions of Ss.121 and 122(b) of the Torts Law (supra) that the suit against the appellant could be effectually and completely determined without joining the Nigerian Police Force or its officers that arrested and detained the respondent. Therefore, the Nigerian Police force or any of its officers that was involved in the execution of the criminal process arising from the appellants complain is not a necessary party to the suit. A necessary party is one whose presence or joinder is necessary to enable the claim or the central issue or issues in controversy in the suit to be completely and effectually determined. In other words, without such a party the claim or the central questions in the suit cannot be fully and finally settled. See GREEN V. GREEN (1987) NWLR (PT. 61) 481.
There is no doubt that the Nigerian Police Force can be a proper party to the suit by reason of the role its officers played in the criminal process originated against the respondent, neither it nor any of its officers was a necessary party to the suit. See GREEN V. GREEN (supra) in which the Supreme Court restated the difference between proper parties,desirable parties and necessary parties thus- “Proper parties are those who, though not interested in the plaintiff’s claim, are made parties for some good reasons e.g where an action is brought to rescind a contract, any person is a proper party to it who was active or concurring in the matters which gave the plaintiff the right to rescind. Desirable parties are those who have an interest or who may be affected by the result. Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceeding could not be fairly dealt with.”
In any case even if the Nigerian Police force or any of its officers were a necessary party to the suit, the failure to join it as a party thereto was not fatal to the suit against appellant. In BELLO V. INEC & ORS (2010) 8 NWLR (PT 1196) 342 the same court held that the failure to join a necessary party to an action will not render the proceedings in the action incompetent or a nullity and that the court cannot dismiss a suit because a party who ought to have been joined was left out. The court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter. See GREEN V. GREEN (supra)
The respondent chose to sue only the appellant as the initiator of the criminal process against him and did not sue the Police who executed the criminal process of his arrest and detention. It is settled by a long line of Supreme Court decisions including MOGAJI V. MOGAJI & ORS (1986) NWLR (PT. 19) 759, GREEN V. GREEN (supra) and BELLO V. INEC & ORS (supra) that the courts will not compel a plaintiff to proceed against a party he has no desire to sue. The Supreme Court in BELLO V. INEC & ORS (supra) held that “it is the prerogative of the plaintiff to determine the defendant in the suit. The liability of each party in the suit would be determined having regards to the pleadings and the evidence led by the claimant in the light of the applicable laws.” In Green v. Green (supra) the same court stated that “a plaintiff who conceives that he has a cause of action against a particular defendant is entitled to pursue his remedy against that defendant only and should not be compelled to proceed against other persons whom he has no desire and no intention to sue.”
The issue is whether the plaintiff has proved his case against the person he has chosen to sue as defendant and not whether he can succeed against that defendant without joining other persons as defendants. His case will succeed or fail as constituted.
In the light of the foregoing I hold that the non-joinder of the Nigerian Police Force or any of its officers as a party to the suit was not fatal to the suit. I therefore resolve issue No 1 in favour of the respondent.
Let me now consider the second issue of whether the appellant was instrumental in instigating the police to cause the arrest and detention of the respondent.
The trial court in its judgment stated thus- “I also find that the defendant did not merely indicate to the police the plaintiff whom he made the report against but also instigated the arrest and detention of the plaintiff.” The Learned Senior Advocate for the appellant has argued that this finding of the trial court was wrong. He submitted that PW1 who was present when the appellant came with a police officer to meet the respondent, did not say that it was the appellant who asked the police officer to arrest the respondent, that rather the evidence of PW1 is that it was the IPO that insisted on going to the police station with the respondent and that it was the same IPO that refused to grant the respondent bail without the instigation of the appellant. The Learned SAN also submitted that PW2 stated that he came to the police station to secure the bail of the respondent, but the police refused and that he does not know the reasons for the refusal of the police to grant the respondent bail. The Learned SAN further submitted that PW3’s testimony that it was the appellant that told the police to arrest him, is not supported by the testimony of PW1 who was present at the time and followed the respondent to the police station and that the evidence of PW1 and PW2 as to what happened at the police station, clearly show that it was not the appellant that caused the refusal of the police to release the respondent on bail. The Learned SAN for the appellant justified the criminal complaint by the appellant against the respondent over the respondent’s entry and farming on a land in which the appellant said is the land in dispute in a pending High court civil suit, argued that it is certainly within the law to stop such crime of forcible entry into the land and acts of criminal contempt of the order of the court restraining both parties from entering into the land otherwise there would be breach of the peace. According to the Learned SAN it is within the police duties to stop such and it is a justification for the detention of the respondent under the Police Act and under the Constitution of Nigeria.
I have carefully considered the totality of the arguments of the Learned SAN for the appellants under issue No 2 I do not think that the arguments are valid in view of the express admission by the appellant that the land he saw the respondent working on and which caused him to complain to the police was owned by Okoye Isiandiso (respondent’s brother) and was not the land in dispute in the pending civil suit No 4/3/1993, that his complaint to the police was malicious and only designed to humiliate the respondent for no just cause and that he caused the respondent to be wrongfully imprisoned and deprived of his liberty and subjected to great anxiety, humiliation and disgrace. This express admission is contained in paragraph 9 of the statement of defence, wherein he admitted paragraphs 15, 16, 17, 18 and 19 of the statement of claim. I had in pages 6 and 7 of this judgment reproduced the exact wordings of the above mentioned paragraphs of the statement of claim and statement of defence for ease of reference.
This admission by the appellant in paragraph 9 of the statement of defence defeats his denial in paragraph 6 of the statement of defence that he did not cause the arrest and detention of the respondent, as he merely laid a criminal complaint and the police on their own initiative without any prompting from him arrested and detained the respondent. His evidence denying that his complaint was false and malicious and that he was directly or actively instrumental in causing the police to arrest and detain the respondent is also defeated by his said admission of paragraphs 15 to 19 of the respondents statement of claim.
The evidence of PW3 also justify the finding of the trial court that the appellant did not only point out the respondent to the police officer as the person he laid a complaint against, he also directed the police officer to arrest the respondent. PW3 testified in examination in chief that- “I am the 3rd defendant in that suit. On the 18th April, 1999 I got a labourer and went to Okoye Isiadinso’s farm. After we finished working at the farm, the defendant in the suit came to my house with a police and the policeman told me that I am wanted at the police station Abagana that day 18-4-99, I then asked the policeman what have I done and the policeman told me that the defendant reported to the police at Abagana that I entered into the land in dispute and that I disobeyed an order of the court and entered into the land in dispute. I told the policeman that I did not enter into any land in dispute neither did I disobeyed any order of court. While I was discussing with the policeman, the defendant told the policeman to arrest me and take me to the police station Abagana and deal with me as I do not obey him and that I am also disturbing him (defendant). The policeman then asked me to go with them but I told him that they should go. I will meet them at the police station Abagana later. Let me enter my house and wear my cloth. The policeman refused my request. Chief Okoye Isiadinso, (PW1) pleaded with the policeman to allow me to come myself to the station but the policeman refused. The policeman arrested me and took me to the police station Abagana.”
The appellant did not challenge or contradict this testimony in cross-examination. No question was put to the respondent concerning this testimony. The cross examination was completely silent on this testimony. By not cross-examining the respondent on this evidence, the appellant admitted that he had nothing in the evidence to challenge and that the narration of facts is correct. This legal consequence of not cross-examining a witness’ evidence of a particular fact has been restated by a long line of Supreme court decisions. In GAJI V. PAYE (2005) 5 SC 53. The Supreme Court per Edozie JSC held that “the effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness. In CAMEROON AIRLINES V. OTUTUIZU (2011) 4 NWLR 512 the Supreme Court held per Rhode-Vivour JSC “The position of the Law is well settled that where a party testifies on a material point, in this case, loss of N20,000, the appellant ought to cross-examine him, or show that this testimony is untrue whereas in this case neither was done, the court could readily conclude that the adverse party, in this case the appellant does not dispute the fact.” In AMADI V. NWOSU (1992) 6 SCNJ
59 the Supreme Court held per Nnaemeka Agu JSC that -” It is a settled principle of law that where an adversary or a witness called by him testifies on a material fact in controversy in a case, the other party should, if he does not accept the witness’s testimony as true, cross- examine him on that fact, or at least show that the he does not accept the evidence as true, where, as in this case, he fails to do either, a court can take his silence as an acceptance that the party does not dispute the fact. After all, one of the main purposes of cross-examination is to test the veracity of a witness. See AJAO V. AJAO (1986) 5 NWLR (PT. 45) 802″ Per Nnaemeka Agu, JSC (p.22, paras, A-C).
See also ELEGUSHI & ORS V. OSEMI & ORS (2005) 7 SC (PT.111) 205, NEWBREAD ORGANISATION LTD V. ERHOMOSELE (2006) 5 NWLR (Pt.974) 499, LSDPC & ANOR V. NIGERIAN LAND AND SEA FOODS LTD (1992) NWLR (PT 243) 620
The appellant while testifying as DW1 did not rebut the evidence of PW1 that at some point while the policeman was discussing with the respondent, he cut in to direct the policeman to arrest the respondent. While he testified under cross-examination denying that he directed the policeman to deal with the respondent, he said nothing about the evidence that he directed the policeman to arrest the respondent.
The Learned Senior Advocate for the appellant dwelt heavily on the fact that the testimony of PW1 did not mention that the appellant directed the police officer to arrest and deal with the respondent. According to the Learned SAN since the PW1 was present when the respondent was arrested, his narration of the facts and circumstances of the arrest ought to be the same with that of PW3 (respondent). He then urged this court to discountenance the evidence of PW3 as an after thought and that the evidence when weighed on the imaginary scale of justice vis-a-vis the evidence of PW1, PW2 and DW1, it clearly shows that the scale tilts in favour of the appellant to the effect that the appellant did not procure the police or instigated the police to arrest and detain the respondent. I have carefully read the evidence of all the witnesses. PW1 testified in examination in chief that “On 18th April 1999 I was invited by the plaintiff to his residence at Etiti Osili village, Enugwu-Ukwu and I went to the plaintiffs house. When I got there I saw the plaintiff, I saw the defendant and I saw a policeman. I inquired from the policeman his object of being there.
The policeman “told me that following the report made by the defendant at the police station, Abagana that is why he is here to arrest the plaintiff. I pleaded with the policeman to allow the plaintiff to report to the station the following day because we are going to court the following day but the policeman refused and said that he must take him to the station. I advised the plaintiff to go with the policeman and the defendant to the police station and all of them left.”
It is obvious from this testimony of PW1 and the testimony of DW1 under cross-examination that PW1 was not present when the appellant and the policemen arrived and met the respondent. The respondent sent for PW1 following their arrival. Therefore PW1 is not in a position to know what may have transpired between them and the respondent before his arrival. It is obvious that the PW1 testified about what transpired in his presence. He was not in a position to testify about what transpired before he was sent for and or arrived the scene. What is clear is that the testimony of PW3 that the appellant did direct the policeman who came with him to arrest the respondent is not denied by the appellant who had in paragraph 9 of his statement of defence expressly admitted that he maliciously laid a criminal complaint against the respondent to cause him to be wrongfully imprisoned, deprived of his liberty and subjected to great anxiety, humiliation and disgrace.
The appellant having admitted that with malice aforethought, he initiated the criminal process without any factual basis, to cause the respondent to be detained, I fail to see how he can escape personal responsibility for the outcome of the malicious criminal process he set in motion. He is responsible for the actions of the police officers before they realized that there was no basis for the criminal process and terminated same as exhibit A shows. The false and malicious nature of the criminal complaint render him liable for anything done by the police to the respondent pursuant thereto. In ONYEDINMA V. NNITE (1997) 3 NWLR (PT 493) 333 AT 345, this court held per Ejiwunmi JCA (as he then was) that “It is indeed the proper procedure for a person to make a report to the police concerning a felony. But where, in making the report, specific person were identified as responsible for the theft or loss of the property, then should that information be found false, the person making the report would loss the protection available to him. In such circumstance, should the person affected by that false report institute proceedings, then such a person would be properly found liable for the consequent damages claimed as a result of the detention of the person against whom the report was made.”
Another basis for his personal responsibility for the arrest and detention of the respondent is his direction to the policeman to arrest the respondent. It is obvious that by so directing, he went beyond acting as a mere pointer for the police officer, to identify the person against whom the complaint was laid.
Let me now consider the 3rd issue of whether the trial court placed the proper burden of proof on the parties before it believed the evidence of the respondent that he was detained on I8-4-I999 until 2 pm on 19-4-1999 and found the appellant liable for false imprisonment.
This issue was framed and raised for determination by the appellant. Upon reading the arguments under this issue I noticed that the arguments do not address the complain raised in this issue. The issue as framed appear to complain that the trial court did not place the proper burden of proof on the parties before believing the evidence of the respondent that he was detained between 18-4-99 and 2pm on 19-4-99 and finding the appellant liable for false imprisonment. The Learned Senior Advocate for the appellant restated the law on who has what burden of proof in civil cases as prescribed in Ss.135(l) and (2), 136, 137 (1), (2) and (3) and 139 of the Evidence Act 2004 Laws of the Federation, reproduced paragraphs 8 to 13 of the statement of claim and paragraphs 6 and 9 (ii) of the statement of defence and then argued that the failure or refusal of the respondent to produce the bail bond or papers signed by PW2 to secure his release from detention in the face of the appellants denial that the respondent was detained at the police station was fatal to the case of the respondent that he was detained at the Abagana Police station from 18-4-1999 to I9-4-I999. The Learned SAN wondered why the respondent was able to produce the police investigation report and yet could not produce the bail papers that were signed to secure his release. Such bail papers would have obviously established, beyond the mere ipse dixit of PW1, PW2 and PW3 that the respondent was granted bail and thereby resolving the dispute as to whether he was detained at all at Abagana Police station, as the existence of a bail bond presupposes that the person on bail was in detention. On the basis of this argument, the Learned SAN for the appellant urged that this court should allow the appeal and hold that the respondent did not discharge the burden of proof placed on him in the circumstances.
It is glaring that the arguments did not contend that the trial did not properly direct itself as to who has what burden of proof as between the parties to the suit and did not complain that the trial court wrongly placed the burden of proof of any fact on a party. The arguments did not contend that the trial court was wrong to have believed the respondent that he was detained from 18-4-99 to 19-4-99. The central point of the entire argument is that the respondent failed to prove that he was so detained at Abagana Police station since he did not produce in evidence the bail papers signed by PW2 to secure his release from such detention. But that is not the complain in issue No 3 as couched by the appellant. Where a party in an appeal argued an issue raised for determination the arguments must be consistent with the issue under which they are made and dwell only on the complain in that issue. While arguing an issue, it is wrong to argue matters that are outside the complain contained in the issue. As it is the third ground of this appeal from which issue No 3 is derived and the said issue itself were not argued. The arguments thereunder do not support the issue as framed. I will therefore treat the said ground 3 and issue No 3 as having been abandoned.
Accordingly I hereby strike them out.
In any case, the argument that the absence of the bail bond or papers is fatal to the respondent’s claim disregard the following important facts. The first is that all sides agree that the liberty of the respondent was restrained when the Police officer in company of the appellant insisted that the respondent must follow them, there and then, to the Abagana Police station. PW3 (respondent) testified that his plea that the police man allow him to come to the police station on his own and at his own time was refused by the policeman. Even though the DW1 described what took place as an invitation and not arrest, it was obvious from his evidence that the respondent was restrained from going anywhere except to follow them to the police station. This testimony was corroborated by the testimony of PW1. DW1 testified “it is correct that the policeman who went to the scene with me informed the plaintiff his purpose of being there and that the plaintiff is wanted at the police station Abagana. It is not correct that the plaintiff appealed to the police man to allow him to come to the police on his own and the police refused, rather it was chief Okoye Isiadinso that pleaded with the policeman to go, that he chief Okoye Isiadinso will bring the plaintiff to the station later.” By this, testimony the DW1’s denial of the fact of the arrest collapsed. His testimony that PW1 pleaded with the policeman to go and that he will bring the respondent to the police station and the fact that the respondent went with the policeman to the police station confirmed the arrest of respondent on 18-4-1999. The matter was settled by the testimony of DW2 (appellant’s brother) in examination in chief thus- “On 18-4-99 the defendant came back from Onitsha and called me. I went with the defendant to a land and I observed that some men were working on the land with the plaintiff. The defendant then told me that they have a land matter at Awka High court in respect of that land on 19-4-99. The defendant after seeing the workers and the plaintiff working on the land on 18/4/99, he went to the police station Abagana and made a report to the police and the police later went to the land and met me (DW2) and Okoye Isiadinso on the land. The police asked Ifeanyi Isiadinso and Okoye Isiadinso to report at the police station Abagana. The defendant, Donatus Okafor also reported at the police station Abagana.”
Under cross-examination he testified that- “I was at Etiti Osili Enugwu-Ukwu when the police came and arrested the plaintiff. I saw four workmen on the land when I went there with the defendant. I was on the land cultivated by Isiadinso when the police came to arrest the plaintiff. I am 32 years old.”
Where the testimonies of DW1 (appellant) and that of the respondent’s witnesses (PW1, PW2 and PW3) differ is on the date the respondent left the police station. DWI testified that- “Chief Okoye Isiadinso on that 18-4-99 went to the D.P.O.’s office and met the D.P.O. and after discussing with the D.P.O., the D.P.O. came out from his office in my presence instructed the I.P.O. handling the case to be fast in recording our statements so that we can all leave the station including the plaintiff as we have a High court matter at Awka the following day 19-4-99.”
PW1, PW2 and PW3 on the other hand maintain that the respondent was not allowed by the police to leave the police station till the next day at 2pm when the PW2 signed the bail paper securing his release.
So the dispute is as to the length of time respondent’s liberty was restrained. The length of time a person’s liberty is totally restrained is immaterial for false imprisonment to exist. S. 122(b) of the Torts Law (supra) provides that it shall exist however short the time of total restraint of the person’s liberty.
The second fact is that the appellant in paragraph 9 of his statement of defence admitted paragraph 18 the respondent’s statement of claim that he caused the respondent to be wrongfully imprisoned and deprived of his liberty and subjected to great anxiety, humiliation and disgrace.
The third fact is that contrary to the assertion of the appellant in paragraph 6 (IV) of his statement of defence and in his evidence that he was not aware that the respondent continued to report at Abagana police station, exhibit A, the Police Investigation Report state “both parties were invited to the DPO’s office for an interview on 12/5/99.”
The fourth fact is that the PW1, PW2, PW3 were consistent in their testimony in examination in chief that the respondent was not allowed to leave the police station on 18-4-99 and was detained till 2pm, the next day when he was released on bail, after PW3 had signed the bail bond.
The fifth fact is that the respondent who had arrived home some days earlier to attend proceedings in the pending civil suit at the High Court, was not in court during the proceedings on 19-4-99. In Exhibit B, the certified true copy of the record of that days proceedings. Learned counsel for the respondent who was 3rd defendant in that suit stated before the court as an excuse for the absence of the respondent in court that “the 3rd defendant is being detained by the police at the instance of the plaintiff.”
In view of the above facts and the provisions of S. 122(b) of the Torts Law, the absence of the bail bond by which the respondent’s release from detention was secured is of no moment.
I will now proceed to consider the fourth issue of whether the burden of proof in a proceeding is discharged by a generalization of the evidence adduced by the parties and permanently placing the onus of proof on the defendant/appellant as was done by the trial judge.
I cannot help but admit that this issue as couched does not seem to be clear concerning what it is complaining about. With due respects, my view is that the issue as framed is ambiguous and meaningless. It will help the attainment of justice in an appeal if the issues raised for determination are couched in a language that will bring out the issue for determination clearly and will not leave the court conjecturing on what issue is being raised. The language should be simple and clear as to the issue it has raised for determination. Where an issue is framed in unclear and ambiguous language, the court is put into the additional work of having to find out the substance of the issue raised from the arguments under it. This is what has happened here.
I have carefully read the arguments under this issue the central complain in those arguments is that the trial court was wrong to have held that whenever and wherever the evidence of the respondent and his witnesses contradict that of the appellant and his witness on whether the appellant directly instigated the arrest and detention of the respondent, the evidence of the respondent and his witnesses is to be preferred and believed and that of the appellant and his witness rejected as not credible.
The Learned Senior Advocate for the appellant has argued that this position adopted by the trial court renders the reliance on demeanor of witnesses unnecessary.
The Learned SAN argued further that it is the law that judgments are not based on such a position, that civil cases are fought on a preponderance of evidence which entails putting the evidence of the parties on an imaginary scale of justice to see where the weight of the evidence tilts and that in doing so, regard must be had to Ss. 135, 136, 137 and 139 of the 2004 Evidence Act. The Learned SAN then argued that the characterization of the evidence of PW1, PW2 and PW3 as true and to be preferred to the evidence of DW1 and DW2 is not supported by the printed record of the evidence of the parties at the trial and that it was wrong for the trial court to have believed the evidence of PW1, PW2 and PW3 as true when the evidence of PW1 and PW2 are at variance with the evidence of PW3 on whether the appellant did instigate the arrest of the respondent. He finally submitted that the trial court placed the wrong burden of proof on the appellant.
Let me straight away point out that the trial court also relied on the demeanor of the witnesses as the basis of its belief or disbelief of the evidence of the witnesses. This is obvious from the part of the judgment where it held that- “I must on the evidence observe that I carefully watched the parties and their witnesses testify in this case and felt completely satisfied that the plaintiff is a witness of truth. I also believe the evidence of PW1 and PW2 and that part of the evidence of DW2 when he stated that he was at Etiti Osili village, Enugwu-Ukwu when the police came and arrested the plaintiff. I am satisfied that the plaintiff was arrested at Etiti Osili village Enugwu-Ukwu and detained at the police station Abagana, at the instigation of the defendant. I have been able to arrive at this decision after a careful examination of the entire evidence led in this case and after thoroughly watching the demeanour of the parties and that of their witnesses while they testified in the witness box. I accept the entire evidence of the plaintiff and his witnesses and reject that of the defendant and DW2 where ever and when ever one contradicts the other. I have found the case of the Plaintiff and his witnesses generally more credible than that of the defendant and his witness. I hereby accept the said case for the plaintiff on points not already specifically dealt with wherever and whenever this contradicts the evidence of the defendant and his witness.”
It had also held that- “I must state that the defendant and his witness did not generally impress me as witnesses of truth in the matter of the defendant’s role on the arrest and detention of the plaintiff. I do not in particular accept that the police invited the plaintiff and he honoured the police invitation. I am satisfied that the defendant was actively instrumental in setting the law in motion against the plaintiff. He initiated, caused and instigated the arrest and detention of the plaintiff, and I so hold.”
It is clear from the above portions of the judgment of the trial court that it determined the credibility of the testimonies of the witnesses specifically on the role of the appellant in the arrest and detention of the respondent and the credibility of their testimonies generally. A court may for good reason treat the evidence by a party and his witnesses as not believable or not credible or less credible in respect of a particular fact or generally. There is no law prohibiting such a decision so far as it has evidential basis.
A party who complains that the trial courts findings of facts on the basis of its belief or disbelief of any witness is wrong, has to show why it is wrong. As the Supreme Court held in BAKARE V. THE STATE (1937) 3 SCI, there is a well settled presumption that the findings of fact of the court of trial are correct and the burden is on the person challenging the finding of facts on appeal to displace this presumption. This duty is not discharged by the mere assertion that it is wrong. The party must show by reference to the evidence that the belief or disbelief is against the logical drift of the evidence. It is not enough to merely assert that it is not supported by the evidence.
The argument that the trial court was wrong to have believed the testimony of PW3 as the same is at variance with the evidence of PW1 and PW2 is not valid. I have already held herein that the evidence of PW1. PW2 and PW3 are consistent.
In appealing to this court on such a ground, it must be borne in mind that the jurisdiction of this court to determine an appeal against finding of facts based on the credibility of witnesses is very limited in scope. As the Supreme Court said in WILLIAMS V. THE STATE. It is not the function of this court to disturb the findings of fact of the trial court especially where those findings are based on the credibility of witnesses who had testified before the trial court unless the decision is shown to be perverse and not the result of a proper exercise of judicial discretion. In NASAMU V. THE STATE (1979) 6-9 SC 112, the Supreme Court held that it is trite law that a trial court is in the best position to assess the credibility of witnesses. In AGBONIFO V. AIWEREOBA & ANOR (1988) NWLR (PT.70) 325 the Supreme Court held that where the issue is that of credibility of witnesses the appellate court has a very limited, if any, scope to interfere. It can only do so when the trial court decided to believe a witness quite contrary to the trend of accepted evidence or where oral testimony is contrary to the contents of a written document. In OKONJI V. THE STATE (1987) 3 SC 175, the Supreme Court said “It is now almost trite law that the trial court which has the advantage of seeing the witnesses and watching their demeanour is a master in the domain of findings of fact, and that except in some special circumstances, an appeal court should not interfere with them. See CHIEF VICTOR WOLUCHEM AND ORS. V. CHIEF SIMON GUDI AND ORS. (1981) 5 SC 291 AT 326; Idigbe, JSC at page 295 said that – “When the decision of the trial judge is based mainly and substantially on his assessment of the quality and credibility of witnesses who testified before him, a Court of Appeal must in order to reverse is not merely entertain doubts whether the decision below is right, but be convinced that it is wrong.” The appellant has not convinced this court that the trial court was wrong to believe the respondent and his witnesses and disbelieve the appellant and his witness.
Let me now deal with the last issue of whether the trial court was right in awarding the sum of N150,000 as damages in favour of the respondent.
The Learned SAN for the appellant argued that there was no basis for the award as the trial court did not state the reasons therefore or the factors it considered in arriving at the sum of N150,000.
In furtherance of this argument, the Learned SAN reopened his earlier arguments under issues Nos 1 to 4, submitting that even if the respondent was detained, the detention did not last more than 24 hours, and contending that the respondent was not detained at all, that the respondent was not arrested at the instigation of the appellant, that the failure to tender the bail bond was fatal to the case of the respondent, that the police had ample justification to intervene under the police Act and the 1999 Constitution and that the respondent did not discharge the burden of proof placed on him. It is wrong to repeat the arguments already made in the earlier issues. In any case issues Nos 1 to 4 have already been determined in favour of the respondent in this judgment. I have already upheld the judgment of the trial court that appellant maliciously and actively instigated the arrest of the respondent and that the respondent was detained at Abagana Police station from 18-4-99 to 19-4-99 when he was released on bail. So the argument that is valid for consideration under issue No. 5 is the argument that there is no basis for the award of the sum of N150,000 as general damages for the false imprisonment suffered by the respondent.
In determining this issue, it is necessary to findout how the trial court approached the said award of N150,000 general damages for false imprisonment. To aid this inquiry I will reproduce here the portion of the judgment on the award for ease of reference. The trial court held that- “On the question of damages, any trespass, however slight, gives a right of action to recover at any rate nominal damage. Even where there has been no physical injury, substantial damages 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 indicate the plaintiffs 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. See OKONKWO v. OGBOGU (supra) at pages 826-827. In the instant case, plaintiff has testified that he suffered a lot of things from his detention at the police station at the instance of the defendant because he could not meet up with all his engagements, his old and new customers could not get him again. He stated that he suffered heavy losses, personal injuries and discomfort. All these occasioned economic loss and other losses. In assessing the damages, I have taken into consideration the plaintiffs discomfort, inconvenience, economic loss and liberty which was interfered with. I have earlier in this judgment find that the report was made to the police by the defendant falsely and maliciously against the plaintiff that entitled the plaintiff to damages including his discomfort, inconvenience, economic loss and his liberty as a result of the said false imprisonment. In the final result judgment is entered in favour of the plaintiff. I award a total sum of N150,000.00 as damages for false imprisonment in favour of the plaintiff'”
It is glaring from this portion of the judgment that the trial court gave reasons for the award and stated the factors it considered in arriving at the award. Therefore the submission of the Learned SAN that the trial court did not state the reasons for the award or did not state the factors it considered is clearly wrong as it is not borne out by the record of the terms of the judgment of the trial court.
The arguments have not challenged the sufficiency or validity of the reasons and are silent on the reasons given by the trial court. The argument that there is no basis for the award therefore fails. There is therefore no basis for this court to interfere with the award. As the Supreme Court held in Oduwole & ors v. West (2010) 10 NWLR (Pt 1203) 59 SC “the occasions when the Court of Appeal is likely to involve itself in question of damages are comparatively rare. Damages in essence, a question of fact rather than of law. Appeals on damages are therefore generally confined to rare cases where either the Court applies the wrong measure of damages or where further findings were not open to the judge on the facts. The later category is comparatively rare because the Court of Appeal is reluctant to upset findings of fact without good reason. Moreover, the court of Appeal is reluctant to interfere with assessment of general damages save in cases where the trial judge has applied wrong principle or is otherwise clearly wrong. As a matter of general principle, an appellate court would not interfere with an award of damages by a trial court simply because faced with a similar situation and circumstances it would have awarded a different amount. An appeal Court will however interfere with an award by a trial court where it is clearly shown:- (a) that the trial court acted upon wrong principle of law or (b) that the amount awarded by the trial court is ridiculously too high or for law; (c) that the amount was an entirely erroneous and unreasonable estimate having regard to the circumstances of the case. See also USONG V. HANSEATIC INTERNATIONAL LTD (2009) 1 NWLR (PT 1153) 522, UBA PLC V. AJABULE & ANOR IJEBU ODE L.G. V. BALOGUN & CO LTD (1991)1 NWLR (PT.156) 136 SPDC NIG LTD V. ILEGBO & ORS (2005) 9 NWLR (PT.931) 439. Issue No 5 is therefore resolved in favour of the respondent.
In the light of my foregoing determinations of issues Nos 1, 2, 3, 4 and 5, I hold that this appeal lacks merit. It is, accordingly, hereby dismissed. The judgment of the High Court of Anambra State in suit No. A/64/2000 delivered on 31-3-2006 is hereby affirmed.
The appellant shall pay cost of N30,000 to the respondent.
ADZIRA GANA MSHELIA, J.C.A.: I read before now the lead Judgment of my learned brother Agim, JCA, just delivered. I entirely agree with his reasoning and conclusion that the appeal lacks merit and ought to be dismissed. I too dismiss the appeal and abide by the consequential orders made therein the lead Judgment, inclusive of cost.
IGNATIUS IGWE AGUBE, J.C.A.: I have had the opportunity of reading in draft the lead Judgment of my learned brother Agim J.C.A., and am in complete agreement that this Appeal lacks merit.
I also abide by the award of N30,000.00 cost to the Respondent.
Appearances
O. J. Nnadi SAN with Sylvester Odili Esq, U. G. Iyiagwu Esq and A.U. Obidegwu Esq.For Appellant
AND
For Respondent
