EMMANUEL v. FELIX & ORS
(2022)LCN/16475(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Thursday, June 30, 2022
CA/YL/45/2020
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Mohammed Lawal Abubakar Justice of the Court of Appeal
Between
STEPHEN EMMANUEL APPELANT(S)
And
1. CHRISTIANA FELIX 2. EBUKA FELIX 3. USMAN GARBA 4. RABIU AHMED RESPONDENT(S)
RATIO:
THE DEFINITION OF DEFAMATION AND THE INTENTION BEHIND IT
The tort of defamation aims at punishing and thereby discouraging the act ofcommunicating false statements about a person that injure the reputation of that person. The Black’s Law Dictionary 8th Edition defines defamation as ‘’the act of harming the reputation of another by making a false statement to a third person. A false written or oral statement that damages another’s reputation.’’ Thus to constitute defamation, the words themselves must be defamatory/disparaging in nature, the words must be false, there must be an intention to bring down the reputation of the subject of the defamatory words and people of right standing in society must hear or read the defamatory words. Defamatory words in written form is referred to as libel, while oral defamation is referred to as slander. JAMILU YAMMAMA TUKUR, J.C.A.
THE ELEMENTS THAT MUST BE PRESENT TO PROVE THE ALLEGED DEFAMATION
The elements which must be present and proven by a Plaintiff who is alleging defamation against him by the Defendant(s) was restated by the learned Justices of the Apex Court in the case of OLOGE & ORS v. NEW AFRICA HOLDINGS LTD (2013) LPELR-20181(SC) (Pp 19-19 Paras A-C), thus:
‘’There are six co-terminous ingredients which the plaintiff has to prove to succeed in defamation: (1) Publication of the offending words. (2) That the words complained of refer to the plaintiff. (3) That the words are defamatory to the plaintiff. (4) That the words were published to third parties. (5) That the words were false or lack accuracy, and (6) That there are no justifiable legal grounds for the publication of the words. (See Iloabachie v. Iloabachie (2005) 13 NWLR (pt. 943) 695 SC; Concord Press (Nig.) Ltd. v. Olutola (1999) 9 NWLR (pt. 620) 578.’’
See: EKONG v. OTOP & ORS (2014) LPELR-23022(SC); EZEGBO & ANOR v. IGBOKWE (2016) LPELR-40784(CA); and OKPANACHI v. PUNCH (NIG) LTD & ORS (2021) LPELR-54887(CA). JAMILU YAMMAMA TUKUR, J.C.A.
THE PLAINTIFF MUST SHOW THAT THE DEFENDANT WAS ACTIVELY INSTRUMENTAL IN SETTING THE LAW INTO MOTION
This Court in the case of DIAMOND BANK v. OKPALA (2016) LPELR-41573(CA) (Pp 8-8 Paras B-E) per Tinuade Akomolafe-Wilson, defined the tort of false imprisonment thus:
“The tort of false imprisonment is the restraining or detaining of a person, if the person doing or causing the detention or imprisonment has no right in law to do so. It is an intentional instigation of the arrest and detention of another without reasonable cause. To succeed in an action for false imprisonment, the plaintiff must show that it was the defendant who was actively instrumental in setting the law into motion against him. – Okonkwo v. Ogbogu (1996) LPELR-2486 (SC) 23, (1996) 5 NWLR (Pt. 449) 420 at 433; Borno State Government v. Ashieik (2007)All FWLR (Pt. 357) 1006.”
See: OKEKE v. IGBOERI (2010) LPELR-4712(CA); RIGHE v. ZUBAIRU (2013) LPELR-24233(CA); and MATAZU v. MAZOJI (2014) LPELR-23071(CA). JAMILU YAMMAMA TUKUR, J.C.A.
The Apex Court in the case of OKAFOR VS. ABUMOFUANI (2016) 12 NWLR (Pt. 1525) p.117, per Mary Ukaego Peter-Odili, JSC, gave a guide on similar situations of report to police grounding claims for false imprisonment thus:
“It is a correct representation of the law that if a report as in this case is made to the Police which has been found to be totally false, malicious and without foundation it is the maker of the report that is liable in damages to the Plaintiff for false imprisonment. This is because it is the maker of the report which complaint ignited the action of detention carried out by the Police that does not bring in the Police as a party to the action in the false report and imprisonment.” However, action will not lie against an individual who merely gave information to the Police which led the Police in the exercise of their discretion to arrest a suspect. See ISHENO VS. JULIUS BERGER (NIG) PLC (2008) 6 NWLR (pt. 1084) p. 582. JAMILU YAMMAMA TUKUR, J.C.A.
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Adamawa State in SUIT NO: ADSY/66/2012 delivered on 29th January, 2020 by Honourable Justice Bulila Ladukiya Ikharo wherein the Court gave judgement in favour of the 1st and 2nd Respondents.
The material facts of the case leading to this appeal is that the 1st and 2nd Respondents acting on the belief that the Appellant had committed the torts of defamation and false imprisonment against them, instituted an action before the lower Court via a writ of summons filed on 2nd July, 2012. The basis for the 1st and 2nd Respondent’s case was that the Appellant made a complaint dated 9th September, 2011, to the Commissioner of Police Adamawa State command, Yola accusing the 1st and 2nd Respondents of sponsoring the 3rd Respondent to kill the Appellant, which led to the arrest and detention of the 1st and 2nd Respondents by the Nigerian Police based on the complaint. However, the 3rd Respondent later recanted and turned around to accuse the Appellant of procuring him to falsely accuse the 1st and 2ndRespondents. At the lower Court, the 1st and 2nd Respondents via a subsequently amended statement of claim, dated and filed on 20th May, 2016, sought the following:
1. A declaration that the acts of the defendants are altogether illegal and malicious
2. A declaration that the acts of the defendants amount to the torts of false imprisonment and defamation
3. N3,000,000 general damages for false imprisonment
4. N1,000,000 general damages for defamation
5. N555,000.00 being the total amount expended on transportation getting someone to go and stand as their surety and engaging counsel to prosecute this claim.
In response, the Appellant filed a statement of defence with other requisite processes, which were subsequently amended. Processes were exchanged and the matter proceeded to trial.
The lower Court in a judgment delivered on 29th January, 2020, found that the 1st and 2nd Respondents as Claimants had established the torts of false imprisonment and defamation against the Appellant and ordered as follows:
i. The sum of (N1,500,000.00) One Million Five Hundred Thousand Naira damages against the 1st Defendant for false imprisonment.
b. The sum of 100,000 (One Hundred Thousand) against the 2nd Defendant.
c. The sum of N30,000 (Thirty Thousand) against the 3rd Defendant.
ii. 1,000,000.00 (one Million Naira) damages against the 1st Defendant for defamation.
iii. The sum of N300,000.00 (Three Hundred thousand) for expenses incurred by the Plaintiffs for transportation to &fro Yola and for securing the service of a counsel.
iv. An apology by the 1st Defendant to the Plaintiff (2nd & 3rd Defendants having already apologized.
Dissatisfied with the judgment of the lower Court, the Appellant appealed via Notice of Appeal dated and filed on 9th March, 2020, with four grounds of appeal. The Appellant’s Amended Brief of Argument was dated and filed on 13th October, 2021, but deemed properly filed on 8th March, 2022. The Appellant’s Amended Reply Brief was dated and filed on 13th October, 2021, but deemed as properly filed on, 8th March, 2022.
Appellant’s counsel formulated two issues for determination to wit:
1. Whether defamation in law has been proved in this case without evidence of publication of the alleged defamatory words to a third party (ies) by the Appellant and whether it was proper for the trial Judge to find as he did that the alleged defamatory words were capable of disparaging the 1st and 2nd Respondents based solely on the evidence of the 1st and 2nd Respondents. (Grounds 1 & 2)
2. Whether the trial Judge was correct in holding that Exhibit A which set the law in motion for the arrest and detention of the 1st and 2nd Respondents by the Police was not a true state of affairs when the 3rd Respondent who gave out the information upon which Exhibit A was based before he was alleged to have changed his statement and whether the Appellant and the 3rd Respondent having been tried and discharged by two separate Courts on charges of giving false information to the Police, it was correct therefore for the Judge to hold as he did in all the circumstances of this case that the arrest and detention of the 1st and 2nd Respondents by the Police was wrongful. (Grounds 3 & 4)
The 1st and 2nd Respondents’ brief of argument was filed on 30th October, 2020, deemed properly filed on 11th November, 2020 and further deemed on 8th April, 2022.
Learned counsel for 1stand 2nd Respondents also formulated two issues for determination to wit:
1. Whether the trial Court was right when it entered judgment for the Plaintiffs against the Defendants for the tort of defamation. (Grounds 1 & 2)
2. Whether the trial Court was right when it entered judgment in favour of the Plaintiffs against the Defendants for the tort of False imprisonment. (grounds 3 & 4)
A careful examination of the facts of the case at trial and the issues raised by both parties herein reveals that the issues nominated by the parties are substantially the same, as they question whether the two alleged torts were established at trial to justify the decision of the lower Court. I will proceed to resolve this appeal on 1st and 2nd Respondent’s issues, adjusted slightly, for convenience in the determination of this appeal.
ISSUE ONE:
WHETHER THE TRIAL COURT WAS RIGHT WHEN IT ENTERED JUDGMENT FOR THE 1ST AND 2ND RESPONDENTS AGAINST THE APPELLANT FOR THE TORT OF DEFAMATION. (GROUNDS 1 & 2)
Learned counsel for the Appellant argued that defamation was not proved as required by law at the lower Court, as publication of the defamatory words as alleged by the 1st and 2nd Respondents, and upheld by the learned trial Judge, was not established and it was not proved that the alleged defamatory words lowered the estimation of the 1st and 2nd Respondents in the minds of right-thinking members of the public.
He referred to and relied on the case of Unity Bank Plc v. Mr. Abdulhakeem Abiola (2009) ALL FWLR (Pt452).
Counsel for the Appellant in buttressing his position that publication was not established, pointed out that by paragraph 9, 10 and 11 of the Amended statement of claim, the alleged defamatory words spoken by the Appellant against the 1st and 2nd Respondents were: “These are the people that hired people to kill me” which according to the 1st and 2nd Respondents, caused a reduction in their esteem in the eyes of Church members and Customers, but that throughout the entire proceedings, no one was called upon by the 1st and 2nd Respondents to testify as having heard the defamatory words.
He relied on the cases of Otop v. Ekong (2006) ALL FWLR (Pt.331) 1352 at 1355 ratio 5; and Kanu v. Oparaocha (2006) ALL FWLR (Pt.309) 1499 Ratio 1 at 1500.
On the other hand, learned counsel for the 1st and 2nd Respondents argued that the Appellant admitted the specific allegations of defamation levied against him by his general traverse and his failure to cross-examine the 1st and 2nd Respondents’ witnesses on the material facts that constituted defamatory claim.
He relied on Buhari v. INEC & 4 Ors (2009) ALL FWLR Pt.459 page 419 at 611 paras B-D; University of Uyo v. Akpan (2014) ALL FWLR Pt.736 page 472 at 519 paras F-G Ratio 12; Fatilewa v. State (2007) ALL FWLR PT.437 page 695 at 721-722 paras T-B Ratio 13; and Nwaogu v. Atuma (2013) ALL FWLR Pt.693 page 1893 at 1897 paras C-D Ratio 4.
Learned counsel submitted that from the pleadings and evidence elicited before the trial Court, the tort of defamation, including the element of publication to a third party was established, and that while the cases of Otop v. Ekong (2006) All FWLR (Part 331) 1352 at 1355 Ratio 5; and Kanu v. Oparaocha (2006) All FWLR (Pt. 309) 1499 Ratio 1 at 1500 cited by Appellant’s counsel are good law, they support the 1st and 2nd Respondents’ case as the evidence before the lower Court establishes publication and it is not the law that the person who was hitherto close to the Plaintiff, but now avoids him must be called to testify.
He referred to the cases of Professor Kingsley Owoniyi Ologe& 11 Ors v. New Africa Holdings Ltd (2014) ALL FWLR Pt.713-page 1883 at 1894 paras B-G ratio 1; Emmanuel Bekee & 2 Ors v. Friday Ebong Bekee(2013) ALL FWLR Pt. 684 page 96 at 111 paras C-E Ratio 2.
In the reply brief, learned counsel for the Appellant submitted that the Appellant specifically denied the allegations of defamation as seen in paragraph 28 of the Amended statement of defence, where the Appellant pleaded emphatically that “In further answer to 5-18 of the Plaintiff’s Statement of Claim, the 1st Defendant avers that he has never at any time made any defamatory statement against the Plaintiffs but only reported them based on the information of the 2nd Defendant and that there was no need for the Appellant to cross-examine the 1st Respondent at trial, as the 1st and 2nd Respondents had failed to prove publication.
RESOLUTION OF ISSUE ONE
The tort of defamation aims at punishing and thereby discouraging the act of communicating false statements about a person that injure the reputation of that person. The Black’s Law Dictionary 8th Edition defines defamation as ‘’the act of harming the reputation of another by making a false statement to a third person. A false written or oral statement that damages another’s reputation.’’ Thus to constitute defamation, the words themselves must be defamatory/disparaging in nature, the words must be false, there must be an intention to bring down the reputation of the subject of the defamatory words and people of right standing in society must hear or read the defamatory words. Defamatory words in written form is referred to as libel, while oral defamation is referred to as slander.
The Supreme Court in the case of CHILKIED SECURITY SERVICES & DOG FARMS LTD v. SCHLUMBERGER (NIG) LTD & ANOR (2018) LPELR-44391(SC) (Pp 24-27 Paras D-A), Per Chima Centus Nweze, JSC gave a comprehensive definition of defamation thus:
“Text writers and jurists are ad idem that the province of the tort of defamation, either in its written genre [technically known as libel] or in its transient species [calledslander], is the injury occasioned on another person’s reputation by either written or spoken words, P. Milmo and W Rogers (eds), Gatley on Libel and Slander (Ninth Edition) (London: Sweet and Maxwell, 1998) paragraph 1. 5; G.; True, indeed, the law takes the view that nothing could be more intangible than a person’s reputation, dignity or feelings. In essence, the injury to these intangible attributes forms the essence of the tort of defamation, Offoboche v. Ogoja Local Government (2001) LPELR-2265 (SC) 28, or, more accurately, the law of libel and slander. Like English Law, which gives effect to the Biblical ninth commandment that a man shall not speak evil, falsely of his neighbour [and supplies a temporal sanction], Nigerian Law does not brook the habit of people maligning or disparaging their neighbours before third parties. Sketch Publications Ltd v. Ajagbemokeferi [1989] 1 NSCC 346; Ciroma v. Alli (1999) 2 NWLR (pt. 590) 317; Nsirim v. Nsirim (1990) 3 NWLR (Pt 138) 285, 297. Such statements either tend (a) to lower the plaintiff in the estimation of right-thinking members of society generally; or (b) to expose him to hatred, contempt or ridicule; or(c) to cause other persons to shun or avoid him; or (d) to discredit him in his office, trade or profession; or (e) to injure his financial credit, Sketch Publications Ltd v. Ajagbemokeferi (supra); Corabi v. Curtis Publications Co 441 pa. 432, 273 A 2d, 899, 904, cited, with approval, in Guardian Newspapers and Anor v. Ajeh (2011) LPELR-1343 (SC) 42-43; C-A. However, to constitute a cause of action, they must be false and disparaging statements against a person to a third person.’’
See: OLUMOROTI v. IDEMEKO (2017) LPELR-51546(CA); STANBIC IBTC BANK v. LONGTERM GLOBAL CAPITAL LTD & ORS (2021) LPELR-55610(CA); and CRC CREDIT BUREAU LTD v. LONGTERM GLOBAL CAPITAL LTD & ANOR (2021) LPELR-55674(CA).
The elements which must be present and proven by a Plaintiff who is alleging defamation against him by the Defendant(s) was restated by the learned Justices of the Apex Court in the case of OLOGE & ORS v. NEW AFRICA HOLDINGS LTD (2013) LPELR-20181(SC) (Pp 19-19 Paras A-C), thus:
‘’There are six co-terminous ingredients which the plaintiff has to prove to succeed in defamation: (1) Publication of the offending words. (2) That the words complained of refer to the plaintiff. (3) That the words are defamatory to the plaintiff. (4) That the words were published to third parties. (5) That the words were false or lack accuracy, and (6) That there are no justifiable legal grounds for the publication of the words. (See Iloabachie v. Iloabachie (2005) 13 NWLR (pt. 943) 695 SC; Concord Press (Nig.) Ltd. v. Olutola (1999) 9 NWLR (pt. 620) 578.’’
See: EKONG v. OTOP & ORS (2014) LPELR-23022(SC); EZEGBO & ANOR v. IGBOKWE (2016) LPELR-40784(CA); and OKPANACHI v. PUNCH (NIG) LTD & ORS (2021) LPELR-54887(CA).
A careful examination of the facts of this appeal from the proceedings and evidence adduced at the lower Court and the arguments of counsel before this Court reveals that the point upon which this appeal will turn is whether the 1st and 2nd Respondents adequately established the publication of the defamatory words to persons of right standing in the community, who live or operate in spheres where the communication of such words would have a deleterious effect on the reputation and goodwill enjoyed by the 1st and 2nd Respondents. The answer to the foregoing is in the negative, as what the evidence established is that the Appellant made a report to the Police alleging that the 1st and 2nd Respondents engaged the services of the 3rd Respondent to kill the Appellant, but falls short of proving that the Appellant went on to tell other members of the society as alleged by the 1st and 2nd Respondents. It is indeed the correct position of law that at least one Witness must be called who actually perceived the defamatory words, either by reading the written words or hearing it in its oral form.
This Court in the recent case of ZENITH BANK v. IYAMU (2021) LPELR-54150(CA) (Pp 24-24 Paras A-B), per Joseph Eyo Ekanem, JCA, reiterated the correct position thus:
“In a case of slander, as in this instance, it is necessary to call as a witness the person(s) to whom the defamatory words were published. This is, inter alia, to prove publication, without which the action fails. Again, a report or statement made to the Police cannot constitute defamation.” In the older case of Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) 285 at 298 para C. Obaseki, JSC held that: “It is the reduction of libellous matter to writing and its delivery to any person other than the person injuriously affected thereby that is publication. The name of the person to whom delivery of the libellous document was made must be pleaded.”
See: NIGERIAN WESTMINISTER DREDGING & MARINE LTD v. SMOOTH & ANOR (2011) LPELR-4619(CA); and BSS ENGINEERING SERVICES LTD & ORS v. FIDELITY BANK (2021) LPELR-53458(CA).
The implication of the above is that the 1st and 2nd Respondents failed to prove the crucial element of publication of the defamatory words in its technical sense, as they could not produce even one Witness apart from the parties who heard or read the defamatory words. Having failed to prove their case, it must necessarily fail. The first issue is therefore resolved in favour of the Appellant.
ISSUE TWO:
WHETHER THE TRIAL COURT WAS RIGHT WHEN IT ENTERED JUDGMENT IN FAVOUR OF THE PLAINTIFFS AGAINST THE DEFENDANTS FOR THE TORT OF FALSE IMPRISONMENT. (GROUNDS 3 & 4)
Learned counsel for the Appellant submitted that the only evidence before the trial Court on the issue of the basis of the Appellant’s complaint against the 1st and 2nd Respondents to the Police was Exhibit A, which reveals that the Appellant had a good basis for the complaint, in that, the 3rd Respondent informed the Appellant that the 1st and 2nd Respondents had instructed the 3rd Respondent to kill the Appellant.
He referred to the case of Sunday Effiong Udo &. Ors v. Sunday Kofee Essien (2014) ALL FWLR (Pt.749) at 1184.
Counsel argued that the basis upon which the learned trial Judge reached the conclusion that the complaint by the Appellant which triggered the arrest and detention of the 1st and 2nd Respondents was actuated by malice or ulterior motive, was that the 3rd Respondent allegedly recanted his earlier statement to the police. However, the fact that the 3rd and 4th Respondents denied the charges of giving false information to the Police and was cleared of the charges before the Area Court and Upper Area Court, puts the alleged fact of recanting in doubt. Counsel submitted that there was no direct evidence before the trial Judge that the 3rd Respondent recanted his first statement to the Police which confirmed the Appellant’s basis for the accusation in Exhibit A, the complaint of the Appellant to the Police, as the latter statements allegedly made by the 3rd Respondent which contradicted the first statement were not tendered before the lower Court, thus raising the presumption that if the statements were tendered, the statements would not have favoured the 1st and 2nd Respondents’ case.
He relied on: The People of Lagos State v. Mohammed Umaru (2014) ALL FWLR (Pt.737) page 658 pp 686 paras B-D; Umesie v. Onuaguluchi (1995) 12 SCNJ 120 at 124 Ratio 9 & 10; Umesie v. Onuaguluchi (1995) 12 SCNJ 120 at 124 Ratio 9 & 10; Sunday Effiong Udo &Ors v. Sunday Kofee Essien (2014) ALL FWLR (Pt.749) at 1184; Shell Petroleum Development Company & Anor v. Daniel Pessu (2014) LPELR 23325(CA); Okafor v. Abumofuani (2016) LPELR 40299 SC.
Counsel pointed out that while it is true that the 4th Respondent gave evidence that he recanted his statement because he was paid, the Appellant never mentioned the 4th Respondent in Exhibit A and the 4th Respondent’s testimony before the lower Court ought not to have been relied on since the 4th Respondent had given two inconsistent testimonies under oath.
He referred to the cases of Mrs Charity Fabara & 1 Or v. INEC & 1 Or (2010) ALL FWLR (Pt.544) 176 at 196; and Ezemba v. Ibeneme (2004) 7 SCNJ 136.
On the other hand, learned counsel for the 1st and 2nd Respondents argued that Appellant’s position that he simply made a complaint without more and never instigated the law against the 1st and 2nd Respondents is not supported by the evidence before the trial Court in light of the element of falsehood established in the complaint made by the Appellant, as later discovered by the Police in the course of their investigation into the matter. Counsel asserted that the 1st and 2nd Respondents established false imprisonment having shown by evidence that the complaint made by the Appellant to the Police was totally false, malicious and without foundation, thereby making the Appellant actively instrumental in setting the law in motion against the 1st and 2nd Respondents vide a false report against them.
He referred to the case of Vita Construction Ltd v. Akitoye Branko-Rhodes (2013) ALL FWLR Pt.664 page 129 at 136 paras F-H and 140 para B Ratio 1.
Counsel submitted that the right of every citizen to report suspected criminal offence to the Police as enunciated in the case of Chief Sunday Effiong Udo & 5 Ors v. Chief Sunday Kofee Essien (2014) ALL FWLR Pt.749 page 1184 at 1201 paras A-D, must be based on honest belief and not falsehood as in this case.
RESOLUTION OF ISSUE TWO
There is no gainsaying the fact that every citizen of Nigeria has the fundamental right to freedom of movement and while that right may only be circumscribed by lawful detention or imprisonment. This Court in the case of DIAMOND BANK v. OKPALA (2016) LPELR-41573(CA) (Pp 8-8 Paras B-E) per Tinuade Akomolafe-Wilson, defined the tort of false imprisonment thus:
“The tort of false imprisonment is the restraining or detaining of a person, if the person doing or causing the detention or imprisonment has no right in law to do so. It is an intentional instigation of the arrest and detention of another without reasonable cause. To succeed in an action for false imprisonment, the plaintiff must show that it was the defendant who was actively instrumental in setting the law into motion against him. – Okonkwo v. Ogbogu (1996) LPELR-2486 (SC) 23, (1996) 5 NWLR (Pt. 449) 420 at 433; Borno State Government v. Ashieik (2007)All FWLR (Pt. 357) 1006.”
See: OKEKE v. IGBOERI (2010) LPELR-4712(CA); RIGHE v. ZUBAIRU (2013) LPELR-24233(CA); and MATAZU v. MAZOJI (2014) LPELR-23071(CA).
There is no doubt that the 1st and 2nd Respondents were arrested and detained by the Police and it is incontestable that the arrest and detention was based on the complaint made by the Appellant. It is true that a person who made a report to the Police may be liable for the tort of false imprisonment, where the report he made turns out to be false in nature and based on ulterior motives other than one borne out of a desire to see justice done based on an honest belief or to assist the Police in the exercise of their duty of crime prevention.
The Apex Court in the case of OKAFOR VS. ABUMOFUANI (2016) 12 NWLR (Pt. 1525) p.117, per Mary Ukaego Peter-Odili, JSC, gave a guide on similar situations of report to police grounding claims for false imprisonment thus:
“It is a correct representation of the law that if a report as in this case is made to the Police which has been found to be totally false, malicious and without foundation it is the maker of the report that is liable in damages to the Plaintiff for false imprisonment. This is because it is the maker of the report which complaint ignited the action of detention carried out by the Police that does not bring in the Police as a party to the action in the false report and imprisonment.” However, action will not lie against an individual who merely gave information to the Police which led the Police in the exercise of their discretion to arrest a suspect. See ISHENO VS. JULIUS BERGER (NIG) PLC (2008) 6 NWLR (pt. 1084) p. 582.
This Court in the case of OMUMA MICRO-FINANCE BANK NIG. LTD v. OJINNAKA (2018) LPELR-43988(CA), clearly stated the elements of false imprisonment in similar circumstances thus:
“In the instant case, in order for the respondent to establish tort of false imprisonment, the following elements must be conjunctively established: 1. He was arrested; 2. His arrest was without reasonable and/or probable cause; 3. He was detained for some considerable length of time as a result of his arrest; and 4. The defendant was responsible for his arrest or set the law in motion against him. That is, the defendant instigated his arrest.’’
See: ISHENO v. JULIUS BERGER (NIG) PLC (2008) LPELR-1544(SC).
The case before the lower Court falls within the ambit of where complaint is made to the Police, with the Appellant asserting that the complaint he made was based on information provided to him by the 3rd Respondent, who initially confirmed the position of things to the Police but later on denied being the Originator of the information, but stated that he was procured by the Appellant to falsely state that the 1st and 2nd Respondents asked him to kill the Appellant from the outset. The foregoing state of affairs coupled with the fact that the 3rd Respondent is on the run, creates the impression that the Appellant’s complaint to the Police was not justifiable in the circumstances.
From the evidence before the lower Court, the 1st and 2nd Respondents were able to prove that the Appellant set the law in motion against them. From the law of evidence, the burden of proving that the complaint was based on an honest belief or suspicion in the culpability of the 1st and 2nd Respondent fell on the Appellant, but he did not successfully discharge this burden. See: ONOBRUCHERE & ANOR v. ESEGINE & ANOR(1986) LPELR-2688(SC).
Flowing from the above, the learned trial Judge rightly concluded that a case of false imprisonment had been made out against the Appellant and the second issue for determination is resolved in favour of the 1st and 2nd Respondents.
In the final analysis, the appeal succeeds in part and the part of the judgment of the lower Court with respect to the allegation of defamation including the award of the sum of One Million Naira (N1,000,000) damages and the order for apology by the Appellant to the 1st and 2nd Respondents for defamation made against the Appellant are hereby set aside, while the appeal against the part of the judgment of the trial High Court including the award of the sums of One Million, five Hundred thousand Naira (N1,500,000) damages against the Appellant for false imprisonment and the award of the sum of N300,000.00 (Three Hundred Thousand) for expenses incurred by the 1st and 2nd Respondents for transportation to and from Yola and for securing the service of a counsel fails and is dismissed.
That part of the judgment is hereby affirmed.
Parties to bear their respective costs.
CHIDI NWAOMA UWA, J.C.A.: I read before now, the judgment delivered by my learned brother JAMILU YAMMAMA TUKUR, JCA. My learned brother adequately and comprehensively resolved all the issues that arose in this appeal and I agree with his reasoning and conclusion arrived at in allowing the appeal in part and setting aside the other part of the defamation, damages and costs for legal services.
I abide by the order made as to costs by my learned brother.
MOHAMMED LAWAL ABUBAKAR, J.C.A.: I have had the opportunity of reading a draft of the lead judgment just delivered by my learned brother, JAMILU YAMMAMA TUKUR, JCA. I entirely agree with his Lordship’s conclusion and adopt as mine.
The appeal succeeds in part and I have nothing to add.
Appearances:
C. O. Ezenwelu Esq. For Appellant(s)
M. G. Seukuktive Esq. For Respondent(s)