ZENITH BANK PLC v. NWACHUKWU & ORS
(2021)LCN/15847(CA)
In the Court of Appeal
(ASABA JUDICIAL DIVISION)
On Wednesday, July 14, 2021
CA/AS/155/2013
Before Our Lordships:
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
ZENITH BANK PLC APPELANT(S)
And
1. PATRICK CHUKWUMA NWACHUKWU 2. COMMISSIONER OF POLICE, DELTA STATE POLICE COMMAND, ASABA 3. SUPOL CHIMEZIE UKACHUKWU, O/C ANTI-FRAUD, STATE CID DELTA STATE COMMAND, ASABA 4. GODSPOWER EGBE (IPO) ANTI-FRAUD UNIT, STATE CID DELTA STATE POLICE COMMAND, ASABA RESPONDENT(S)
RATIO:
THE STANDARD OF PROOF IN CIVIL CASES
The matter that led to this appeal was a fundamental rights matter and as such a civil matter. The standard of proof in such a matter is proof on a balance of probabilities and not proof beyond reasonable doubt. It follows therefore that the omnibus ground in an appeal arising from such a matter ought to be couched to reflect that standard of proof, namely, that judgment is against the weight of evidence. The omnibus ground of appeal as couched in this appeal is fit for appeals from criminal cases only. PER JOSEPH EYO EKANEM, J.C.A.
AN ISSUE TO BE CONSIDERED IN APPEAL MUST FLOW FROM THE GROUND OF APPEAL
The offending issue in this instance is issue 5. This is because there is no ground of appeal which attacks the quantum of damages awarded by the lower Court. An issue for determination must spring from a ground of appeal and an issue which does not arise from any ground of appeal is not only incompetent but also completely valueless and must be ignored or struck out by the Court. See BOGOBIRI v. STATE (2017) 18 NWLR (PT. 1597) 247. PER JOSEPH EYO EKANEM, J.C.A.
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): At the High Court of Delta State, Uku Judicial Division (the lower Court), the 1st respondent was the applicant in an application for the enforcement of his fundamental rights brought against the 2nd, 3rd, and 4th respondents and the appellant as the 1st, 2nd, 3rd and 5th respondents as well as another person (4th respondent) who is not a party to this appeal. The 1st respondent claimed the following reliefs against them:
A. A DECLARATION that the arrest of the Applicant on the 3rd day of August, 2009 at his office the College of Education, Agbor Delta State by the 2nd and 3rd Respondents who are agents or servants of the 1st Respondent at the instance of the 4th and 5th Respondent is illegal, unlawful and unconstitutional in that the arrest violated the fundamental rights of the applicant as guaranteed by S. 34, S.35, & 41 of the Constitution of the Federal Republic of Nigeria, 1999.
B. A DECLARATION that the detention of the Applicant at the State CID, Delta State Police Command, Asaba by the 2nd and 3rd Respondents who are the agents or servants of the 1st Respondent at the instance of 4th and 5th Respondent on the 24th day of August, 2009 is Illegal, unlawful and unconstitutional in that it violated the Applicant’s fundamental and constitutional rights as guaranteed by Sections 34, 35 and 41 of the Constitution of the Federal Republic of Nigeria, 1999.
C. A DECLARATION that the threat to further arrest and detain the Applicant is illegal, unlawful and unconstitutional in that it violates the Applicant’s constitutional rights under S. 46 of the Constitution of the Federal Republic of Nigeria, 1999.
D. AN ORDER OF PERPRTUAL INJUNCTION restraining the Respondents whether by themselves, their officers, servants, agents, privies, security operatives otherwise howsoever from further arresting, detaining or in any other manner violating or continuing in further violation of the fundamental rights of the Applicant.
E. N15,000,000 (Fifteen Million Naira) damages jointly and severally against the Respondents to the Applicant as aggravated damages for his unlawful arrest and detention.”
The application was supported by a statement pursuant to Order 1 Rule 2 (3) of the Fundamental Rights (Enforcement Procedure) Rules, 1979and a verifying affidavit as well as a reply to a counter-affidavit, an address, a reply on points of law and a further affidavit.
The 2nd to 4th respondents filed, inter alia, a counter-affidavit and a written address while the appellant filed a counter-affidavit and a written address.
After taking addresses from counsel and on 10/12/2010, the lower Court found in favour of the 1st respondent and granted the reliefs sought. In respect of relief E, the lower Court awarded the sum of N5000,000.00 as exemplary damages jointly and severally against the appellant, the 3rd respondent and 4th respondent. The 2nd respondent was ordered to write an apology to the 1st respondent.
Aggrieved by the decision against it, the appellant appealed to this Court by the means of a notice of appeal filed on 17/12/2010 which incorporates two grounds of appeal. The notice was subsequently amended by the leave of this Court. The amended notice of appeal contains four grounds of appeal.
The facts of the case leading to this appeal may be summarized as follows. The 1st respondent is an administrative officer in the office of the Registrar,College of Education, Agbor, Ika South Local Government Area of Delta State. One Emmanuel Ifemeh was offered a job by the appellant. The 1st respondent signed a guarantor’s form for him in respect of the employment. In the course of his employment, he (Emmanuel) was alleged to have pilfered the sum of N500,000.00. The appellant reported the matter to the police. The 1st respondent contended that the police arrested and detained him on 23/8/2009.
At the hearing of the appeal on 28/6/2021, Mrs. I. C. Okpara for the appellant relied on and adopted appellant’s brief of argument that was filed on 18/1/2017 in urging the Court to allow the appeal and set aside the judgment of the lower Court.
G.O. Okoro, Esq., for the 1st respondent adopted and relied on the brief filed on behalf of the 1st respondent in urging the Court to dismiss the appeal and affirm the judgment of the lower Court.
The 2nd to 4th respondents were absent, and unrepresented in Court though they had been served with hearing notice.
In the appellant’s brief of argument, the following issues have been formulated for the determination of the appeal:
1) Whether the trial Judge was right in law in holding the Appellant liable to the 1st Respondent for which the Judge awarded the sum of N500,000:00 (Five Hundred Thousand Naira) only, jointly and severally against the appellant and 2nd-4th respondents for reporting the crime committed by one Ifemeh Emmanuel.
2) Whether the affidavit evidence as contained in the Respondent’s affidavit in support of his application and the counter-affidavit filed thereto established and/or supported the award/decision made by the trial Judge in respect of reliefs A, B, C and D of the 1st Respondent’s “Motion on Notice” dated 29th day of October, 2009.
3) Whether the trial Judge was right in imputing the alleged wrong doing of the 2nd – 4th Respondents on the Appellant as if they are agents of the Appellant.
4) Whether the trial judge was right in making out a case of malice for the 1st Respondent which was never canvassed, or raised by the 1st Respondent at the trial which entitled the 1st Respondent to damages and if so,
5) Whether the award by the Judge of the sum of N500,000.00 (Five Hundred Thousand Naira) only as exemplary damages is not excessive.”1st respondent’s counsel in his brief of argument formulated three issues for the determination of the appeal. The issues are a reproduction of the first three issues of the appellant. The 2nd-4th respondents did not file a brief of argument.
I will pause at this stage to take a second look at some of the grounds of appeal in the amended notice of appeal and some of the issues formulated by appellant’s counsel.
Ground (ii) of the amended notice of appeal reads:
“The decision of the learned trial judge is unreasonable and cannot be supported having regards to the evidence before the Court.”
The matter that led to this appeal was a fundamental rights matter and as such a civil matter. The standard of proof in such a matter is proof on a balance of probabilities and not proof beyond reasonable doubt. It follows therefore that the omnibus ground in an appeal arising from such a matter ought to be couched to reflect that standard of proof, namely, that judgment is against the weight of evidence. The omnibus ground of appeal as couched in this appeal is fit for appeals from criminal cases only.
SULU-GAMBARI v. BUKOLA (2004) 1 NWLR (PT. 853)122. In the interest of justice, I shall overlook the defect as was done in ALI v. OBANDE (1999) 9 NWLR (PT. 620) 563, 571 and EBENEHI v. STATE (2009) 170 LRCN 91, 105.
The amended notice of appeal bears four grounds of appeal while the appellant’s brief of argument bears five issues for the determination of the appeal. This is obviously wrong. There cannot be more issues for the determination of an appeal than grounds of appeal. Where that is the case the Court will identify the proper issues and jettison the issue that is out of place. See UNITED PARCEL SERVICE LIMITED v. UFOT (2006) 2 NWLR (PT. 963)1 AND EKE v. OGBONDA (2007) 144 LRCN 391. The offending issue in this instance is issue 5. This is because there is no ground of appeal which attacks the quantum of damages awarded by the lower Court. An issue for determination must spring from a ground of appeal and an issue which does not arise from any ground of appeal is not only incompetent but also completely valueless and must be ignored or struck out by the Court. See BOGOBIRI v. STATE (2017) 18 NWLR (PT. 1597) 247. I accordingly strike out issue 5 in the appellant’s brief of argument. Appellant’s issue 4 is not argued in appellant’s brief of argument and it has been abandoned and I therefore strike out the same.
We are left with three issues for the determination of the appeal. The two sets of issues distilled by the counsel for the appellant and the 1st respondent are the same and I shall be guided by them in the determination of the appeal. I intend to consider the three issues together since they all revolve around proof of 1st respondent’s case against the appellant.
In arguing his issue 1, appellant’s counsel contended that pilfering (stealing) is a crime and that the police are mandated to receive complaints in respect of alleged crime. He referred to and relied on FAJEMIROKUN v. COMMERCIAL BANK NIG. LIMITED (2009) 175 LRCN 99. It was his further contention that the issue of malice was not raised by the 1st respondent and so the judgment (based on it) should be set aside.
In respect of issue 2, counsel submitted that the findings of facts made by the lower Court was not based on credible evidence. He further submitted that there was conflict of affidavit evidence and that the lower Court ought to have invited oral evidence to resolve the conflict. He contended that from the letter of invitation by the police to the 1st respondent, he (1st respondent) was never arrested. He observed that the lower Court based its evaluation of evidence on facts in support of the motion ex-parte rather than on the affidavit in support of the motion. He posited that the evidence of the person who took the 1st respondent on bail was vital for the proof of his case. Counsel’s argument in respect of issue 3 is a repeat of his argument in respect of issue 2. I shall therefore not worry myself in restating the same.
1st respondent’s counsel in arguing issue 1, submitted that the police have a duty to fish out the person who allegedly stole the money. It was his further submission that the appellant generated elaborately the issue of malice when it raised an issue of law on it in his address and that the 1st respondent answered it in his reply on points of law. He stated that the 4th respondent admitted in his counter-affidavit that the Branch Manager of the appellant reported a case of conspiracy and stealing against the 1st respondent. He contended that the 1st respondent was not a party to the said offences by merely executing a guarantee for the suspect.
In respect of issue 2, counsel posited that where conflict in affidavit evidence is not material, the Court will not call oral evidence. It was his contention that there was no conflict of affidavit evidence to warrant the calling of oral evidence. He further posited that the fact that the 1st respondent made a statement under caution shows that he was arrested. He stated that the lower Court based its finding on facts in support of the motion.
As regards issue 3, counsel argued that the appellant through its agent set the law in motion against the 1st respondent and was actively instrumental in the arrest and detention of him.
RESOLUTION.
The contention of appellant’s counsel that there was conflict of affidavit evidence and that the lower Court ought to have called for oral evidence to resolve the conflict does not fall within the scope of the issues for the determination of the appeal. Any point of argument that does not fall within the scope of an issue for determination goes to no issue and must be discountenanced. I shall therefore discountenance the said point. The same consideration applies to the submission of appellant’s counsel that the lower Court based its evaluation of evidence on 1st respondent’s facts in support of motion ex-parte rather on his affidavit in support of the motion.
The lower Court in essence found as a fact that the 1st respondent was arrested and detained by the police. This is the import of its question at page 116 of the record of appeal as follows:
“How do you explain an administrative staff of the registrar, College of Education, Agbor being arrested and held in front of his students and staff, taken to the police station and undressed left with his boxer pants in public police station and police cell simply because he guaranteed an-employee.”
At page 118 of the record, the lower Court further made its finding clear in the following words:
“The arrest and detention of the Applicant was therefore unjustified and illegal.”
I have scanned the grounds of appeal in the amended notice of appeal. There is no single ground of appeal which attacks the finding above. The result is that it remains binding and conclusive between the parties. The appellant cannot seek to have it set aside through the back door. See HERITAGE BANK LTD v. BENTWORTH FINANCE (NIG.) LTD (2018) 9 NWLR (PT. 1625) 429 and APGA v. ANYANWU (2014) 7 NWLR (PT. 1407) 541.
It is common ground that the appellant made a report to the police about the alleged pilfering (theft) of the sum of N500,000.00 by its employee, Mr. Emmanuel Ifemeh. The said employee was guaranteed by the 1st respondent. The trial Court in effect found that the 1st respondent was arrested and detained by the 2nd and 3rd respondents. The law is that once an arrest is admitted or established, the burden falls on the party that effected the arrest to justify the same. See SANDY v. HOTOGUA (1952) 4 WACA 18, IYERE v. DURU (1986) 10 – 11 SC 19, 46 and ONOBRUCHERE v. ESEGINE (1986) 1 NWLR (PT. 19) 799, 805.
Now, the appellant, its agents or any of its employees did not effect the arrest and detention of the 1st respondent, rather, it made a report of the alleged crime to the police. The law in this regard was stated by Ogebe, JSC, in FAJEMIROKUN v. COMMERCIAL BANK (NIG.) LIMITED (2009) LPELR-123 (SC) page 4 as follows:
“Generally, it is the duty of citizens of the country to report cases of commission of crime to the police for their investigation and what happens after such report is entirely the responsibility of the police. The citizen cannot be held culpable for doing their civic duty unless it is shown that it is done mala fide.”
In OKONKWO v. OGBOGU (1986) LPELR-2486 (SC) PAGE 23, OGWUEGBU, JSC, expounded the law in the following words:
“To succeed in action for false imprisonment, the plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against him.”
See also GBAJOR v. OGUNBUREGUI (1961) 1 ALL NLR (PT. 4) 853, ISHENO v. JULIUS BERGER (NIG.) PLC (2008) 6 NWLR (PT. 1084) 582 and UAC (NIG.) PLC v. SOBODU (2007) 6 NWLR (PT. 1030) 368.
The burden is on the party who asserts that his opponent was actively instrumental in setting the law in motion against him to prove the assertion. In FIRST BANK (NIG.) PLC v. ATTORNEY-GENERAL OF THE FEDERATION (2014) 12 NWLR (PT. 1422) 470, 491, AKOMOLAFE-WILSON, JCA, put the law thus:
“The onus rests squarely on the party alleging false imprisonment to show that the defendant, that is the party who lodged the complaint, did more than merely making a report to the authorities, but that he took further steps and actively participated and/or directed and influenced the arrest and detention of the plaintiff.”
The trial Court recognized the above position of the law as it stated at page 116 of the record of appeal as follows:
“It is trite law that if no case of malafide is established, 5th Defendant would not be liable…”
The trial Court at page 119 of the record held that:
“I am convinced the 4th and 5th Respondents set the wheel and machinery on motion for the arrest and detention with one motive in mind to recover their lost or stolen money without caring about who is hurt in the process.”
On what basis did the lower Court reach its conclusion? To answer this question, I will take the liberty of setting out the reasoning of the lower Court that resulted in the conclusion hereunder:
“One troubling question is why did 4th and 5th respondent not write the Applicant notifying him of the misdeeds of their staff who he guaranteed and asking him to remedy the situation either by replacing the stolen funds of (sic) helping the bank locate the staff…
I do not think the 4th and 5th Respondents sought proper legal advice as to the right step to take. Whilst it is true that they were to make a report to the Police on the theft the police ought not to have been the first contact with the Guarantor who had signed a bond with the bank and that priority was between the Bank and the Applicant and should have been explored. In other words, as the police was searching for the suspect, the staff ought to have been politely keeping the guarantor on notice of developments in trying to recover the monies and need for his assistance by making a written demand for the stolen sum.” See page 116 of the record of appeal.
1st respondent’s counsel stated that the 4th respondent admitted in paragraph 5 of his counter-affidavit that an employee of the appellant admitted that he reported a case of conspiracy and stealing against the 1st respondent.
The said paragraph 5 at page 92 of the record of appeal is as follows:
“That I first came to know him (the 1st respondent) on the 8/07/2009 when one Eze Emeka Jude Branch Manager of Zenith Bank Agbor came to SCID office Asaba and report a case of conspiracy and stealing against the applicant/respondent.”
Interestingly, in another counter-affidavit by the same respondent (4th respondent) at pages 57 – 59 of the record, it is deposed in paragraph 5 (b) as Follows:
“b. That the case of conspiracy and stealing initially reported at Agbor Division by on Eze Emeka Jude of Zenith Bank Plc, against one Azuka Christopher Oko and Emmanuel Ifermoh now at large was transferred to Anti-Fraud Unit of State Criminal Investgation Department, Delta State Police Command on 7/7/09 for further investigation.”
It is clear that the report that was made at the Agbor Division of the Police was against Azuka Christopher Oko and Emmanuel Ifermoh for conspiracy and theft and that the report of conspiracy and theft was not against the 1st respondent. That was the case that was transferred to the Anti-Fraud Unit of the Criminal Investigation Department, State Police Command, where the 4threspondent was working at the relevant time. Since it was the case of the 1st respondent which he stated for the first time in his reply to the counter-affidavit of the appellant, that it was the Branch Manager of the appellant that reported him to the Police (see page 31 of the record) and since the case of the appellant was that said Branch Manager only reported the crime (committed by Emmanuel Ifemoh) as can be gleaned from paragraphs 11, 12, 13, 14 15, 17 and 18 of appellant’s counter-affidavit (pages 21 – 23 of the record), the 1st respondent ought to have exhibited an extract of the report made by the appellant’s agent, to the affidavit verifying the facts in support of his application to prove the report alleged by him.
In FAJEMIROKUN v. COMMERCIAL BANK (NIG) LTD supra pages 2 and 3, Ogebe, JSC, opined thus:
“It was the duty of the appellant who alleged in his supporting affidavit that he was reported to the Federal Investigations and Intelligent Bureau, Alagbor Ikoyi for theft to prove it especially as he said he saw the report in the Police entry book. He failed to produce an extract of the Police diary.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
The mere fact that the appellant did not seek “proper legal advice as to the right steps to take” and therefore did not notify the 1st respondent of the alleged misdeeds of the person he guaranteed, and also did not “politely” keep him on notice of developments is not evidence of malice and does not justify a conclusion that the appellant set the law in motion against the 1st respondent. There was no mandate on the appellant to write to the 1st respondent on the state of things or to ask him to refund the money allegedly stolen. The appellant had a discretion in the matter. There is no evidence that the appellant instigated the police to invite the 1st respondent and demand that he should pay back the said fund.
In the case of ONAH v. OKENWA (2010) 9 NWLR (PT. 1194) 512, 537, it was held that the question of instigation of the police has to be established by an applicant to earn the reliefs sought and that it requires facts to support the allegation. In this instance, the 1st respondent failed to establish that the appellant set the law in motion leading to his arrest. The lower Court, with due respect, merely engaged in fanciful conjecture and speculation which Courts are not licensed to engage in. The conclusion of the lower Court that the appellant set the law in motion for the arrest and detention of the 1st respondent has no support in the facts of the case and so it is perverse. I accordingly set it aside.
In the light of what I have said thus far, I resolve the three issues for determination in favour of the appellant. I reach the inexorable conclusion that the appeal has merit and it is allowed. The decision of the lower Court delivered on 10/12/2010 in suit no. 0/M/33/2009 against the appellant is hereby set aside. In its place, I dismiss the case of the 1st respondent against the appellant.
The parties shall bear their costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have been availed the opportunity of reading in draft before now, the lead judgment in this appeal as prepared by my Lord Joseph EyoEkanem, JCA.
I concur that there is no scintilla of merit in the appeal brought, as it has the effect of stultifying the exercise of the civic rights and obligations of citizens to report cases, whether suspected or real to the Police or other Law Enforcement Agencies for the purposes of detection, prevention and prosecution as enjoined by the Constitution of Nigeria, 1999 and S. 4 of the Police Act LFN. 2004.
If a citizen, whether private or corporate as, herein the Appellant, cannot report the commission of or suspected theft or any crime by anybody let alone those in its employ, then, that will be in abdication of a constitutional obligation.
What is more, where are the cards placed before the Court to show that the report leading to the arrest and detention of the 1st Respondent was malicious and directed for that purpose? Litigation, is a judicial process where all the cards must be placed on the table of the judicial process.
See BUHARI V. OBASANJO (2004) LPELR 168 per Niki Tobi, JSC.
The instant appeal has merit and I join my learned brother, Ekanem, JCA in allowing the appeal herein against the judgment that recognized a liability not established by facts and law against the Appellant.
ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.: I had a preview of the judgment just delivered by my learned brother, JOSEPH EYO EKANEM, JCA in this appeal. I agree with the reasoning and conclusion ofmy learned brother and would only add a few words for emphasis.
It is a principle of law that a citizen has the duty to report commission of crime to the police for investigation and what happen after is entirely the responsibility of the police. See CHUKWU & ANOR v UDOH & ORS (2019) LPELR – 47008 (CA), this Court held thus:
“…the learned counsel to the 1st Respondent was right to have suggested that it is the duty of citizen of this country to report cases of commission of crime to the police for their investigation and what happened after such report is entirely the responsibility of the police. The citizens cannot be held culpable for doing their civic duty. Ogebe JSC, in FAJEMIROKUN V COMMERICAL BANK. NIG. LTD (2009) ALL FWLR (PT. 487) 1. And that, when a citizen reports a matter to the police or any law enforcement agency for the exercise of their discretion including the discretion to investigate, neither the police nor the citizen would be liable for the actions of the police. See BASSEY V AFIA (2010) ALL FWLR (PT. 531) 1480. This is because, a complainant who did not induce the police to act in a particular manner cannot be heldliable for the actions of the police…”
per OWOADE, JCA (PP. 31 – 2, PARAS. B – A).
See also WILLIAM & ANOR v USEN & ORS (2018) LPELR – 46163 (CA); ABUGO v AROMUAINO (2018) LPELR – 46142 (CA).
The 1st Respondent therefore had a duty/burden to show that the Appellant’s report/complaint to the 2nd – 4th Respondents was done malafide, this, the 1st Respondent failed to do.
The lower Court in reaching its decision based it on a personal conviction that the Appellant set the wheels in motion for the arrest of the 1st Respondent and not on the evidence before the Court, in so doing, imputed the issue of malice, which was not raised by the parties neither where there any evidence to that effect.
There is no evidence as gleaned from the records before this Court that the Appellant instigated the police to invite the 1st Respondent and demand a repayment of the stolen money.
Flowing from the above and the succinct reasoning(s) in the lead judgment, I too hold that the appeal has merit and is allowed.
I abide by all other consequential orders in the lead judgment.
Appearances:
MRS. I.C. OKPARA holding the brief of G.O. GIWA-AMU, ESQ.For Appellant(s)
G.O. OKORO, ESQ., for 1st respondent.For Respondent(s)