CASE TITLE: ZENITH INTERNATIONAL BANK LIMITED v. NOSA DAVIS IYAMU (2021) LPELR-54150(CA)
JUDGMENT DATE: 5TH MAY, 2021
JUSTICES:JOSEPH EYO EKANEM, JCA
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA
BALKISU BELLO ALIYU, JCA
DIVISION: COURT OF APPEAL, BENIN
PRACTICE AREA: Tort – False Imprisonment
Sometime in June 2003, one Aigbe Nosa Michael made a fraudulent withdrawal of N63,000.00 from the account of Benpet Petroleum Ltd with the Ikpoba Hill, Benin City Branch of the appellant, a bank. Upon the discovery of the fraud, the matter was reported to the Police and the identification particulars of the culprit were forwarded to the Police. The address that he wrote down was No. 74 Ogiso Street, Off Murtala Mohammed Way, Benin City.
On 18/6/2003, Mr Isaac Osai (the Chief Security Officer of the branch) and Mr Patrick Ozodobi (the Cash Officer) drove two Policemen assigned by the Police to 74 Ogiso Street, Benin City on the direction of the Manager of the said branch of the appellant. They stopped at a point and Mr Osai proceeded to the gate of the house at the address, which he then knocked. The respondent came out and according to him, the visitor told him that he was looking for “Nosa”, and he answered that he was Nosa. He again inquired if that was No. 74 to which he (respondent) said “Yes”.
The case of the appellant was that Mr Osai told the respondent that he was looking for “Aigbe Nosa Michael” for whom he had a parcel and the respondent identified himself as Aigbe Nosa Michael. Mr Osai left and returned with the Policemen whom he asked to arrest the respondent. He was arrested, handcuffed and walked down to the car while he was in his boxers (inner pants) only and was taken to the Police station.
At the Police station, the respondent, on being told why he was arrested, stated that he is not Nosa Michael Aigbe but Nosa Davies Iyamu. The real Nosa Michael Aigbe who fraudulently withdrew the money was brought to the Police Station and he narrated how he did the deed. The respondent was released the next day. It was the case of the respondent that he demanded, inter alia, for an apology from the appellant but to no avail. The respondent, therefore, took out a writ of summons at the High Court of Edo State endorsed with a statement of claim, claiming:
“Twenty-million-naira general damages for false imprisonment against the appellant and defamation.”
The appellant filed a statement of defence, denying the claim of the respondent. In a considered judgment, the trial court found the appellant liable to the respondent for unlawful arrest and detention, for which it awarded the sum of N300,000.00 as damages in the respondent’s favour. It dismissed the respondent’s claim for slander.
ISSUES FOR DETERMINATION:
- Whether the learned trial Judge was right in awarding the sum of N300,000.00 (Three hundred thousand naira) only, against the appellant as damages for a relief not specifically asked for by the respondent.
- Whether the learned trial Judge properly evaluated the evidence in this suit warranting him to enter judgment in favour of the Respondent at all.”
Arguing issue 1, the Appellant’s counsel stated that the respondent claimed only as damages for false imprisonment and defamation, but the learned trial Judge entered judgment in the sum of N300,000.00 for unlawful arrest and detention. He argued that the learned trial Judge had no jurisdiction to award to the respondent damages for a claim that he did not ask for. He noted that the respondent claimed N20,000,000.00 for false imprisonment and detention which are two tortious acts that cannot be united in one claim. Respondent’s counsel contended that the appellant’s counsel is only seeing a semantic or terminological difference between “Unlawful arrest and detention” and “false imprisonment” without pointing out the differentiating features between the two.
On issue 2, Appellant’s counsel referred to a portion of the judgment of the trial Court and submitted that the basis upon which it chose to prefer the evidence of the respondent rather than that of the appellant is speculative and is based on sentiment. Respondent’s counsel argued that the contention of the appellant’s counsel is without regard to the evidence of the respondent. It was further argued that the reasons given by the trial Court for preferring the evidence of the respondent is cogent, logical, convincing and is supported by evidence on record.
On the whole, the Court came to the conclusion that the appeal has no merit. The Court held that the appeal failed and it was accordingly dismissed.
- CONSTITUTIONAL LAW – CIVIL RIGHTS AND OBLIGATIONS: Whether it is the civic duty of a citizen to instigate the unlawful arrest of another person
“While every citizen has a civic duty to report a crime to the Police (see FAJEMIROKUN v. COMMERCIAL BANK (CREDIT LYONNAIS) NIG LTD (2009) 5 NWLR (PT. 1135) 588) no citizen is allowed by the law to instigate the unlawful arrest of another person by being actively instrumental in setting the law in motion against the person. See OKONKWO v. OGBOGU (1996) 37 LRCN 580.” Per EKANEM, J.C.A.
- EVIDENCE – EVALUATION OF EVIDENCE: Position of the law where the oath of the plaintiff is against that of the defendant
“The point that arose for determination, as rightly pointed out by the learned trial Judge, threw up a case of oath against oath. The Supreme Court stated the position of the law in such a situation thus in CHITRA KNITTING AND WEAVING MANUFACTURING COMPANY LTD v. AKINGBADE (2016) 15 NWLR (PT. 1533) 487, 510:
“It is a case of the oath of the plaintiff against that of the defendant and the Court must of necessity believe one against the other. In the circumstance, the law is settled that it is the duty of the trial Court which heard the witnesses testify that is in a better position to evaluate their testimonies and assign probative value thereto.” Per EKANEM, J.C.A.
- TORT – FALSE IMPRISONMENT: Whether the term “false imprisonment” can be used interchangeably with “unlawful arrest and detention”
“The complaint of appellant boils down to this; that the learned trial Judge did not use the phrase “false imprisonment” in awarding damages but used the phrase “unlawful arrest and detention”. I think, with all due respect, that the appellant’s counsel, as rightly argued by the respondent’s counsel, is engaged in semantics that has no utilitarian value in a Court room. In Clerk & Lindsell on Torts, 13th Ed. P.681, it is stated that:
“A false imprisonment is complete deprivation of liberty for any time, however short, without lawful excuse. “Imprisonment” is no other thing but the restraint of a man’s liberty… “
In Kodilinye and Aluko’s, The Nigerian Law of Torts (1999) 2nd Ed. Page 14, ? it is opined that:
“False normally means “fallacious” or “Untrue” but in this tort, it means merely “wrongful” or “Unlawful.”
It is clear from the foregoing that in the context of the tort of false imprisonment, “false” means “wrongful” or “unlawful” while “imprisonment” is the restraint of a man’s liberty. Thus if one is “falsely imprisoned” it can be said that he is “Unlawfully detained” and as in “unlawful detention”. Again once a man is arrested, he is by that act imprisoned though it be in an open field. Therefore the term “false imprisonment” can for all practical purposes be used interchangeably with “unlawful arrest and detention.” Per EKANEM, J.C.A.
- TORT – DEFAMATION: Whether conduct alone without words can constitute defamation
“I do not however agree with the trial Court that conduct alone without words cannot constitute slander. In Gatley on Libel and Slander supra. Page 42 par. 85, it is stated thus:
“Sometimes a mere act may convey a defamatory imputation, if it would be so understood by reason of conventional meaning, e.g. hissing at a theatre, or by reason of the inference to be drawn from it, whether by the ordinary man, or by some person with special knowledge to whom it was published. Thus, it has been held defamatory to place a lamp in front of a person’s house, to signify that it was a brothel, or to burn him in effigy.”
Section 2 (1) of the Defamation Law of Bendel State, now applicable to Edo State defines “Words” as:
“Any reference in this Law to Words shall be construed as including a reference to pictures, visual images, gestures and other methods of signifying meaning.”
Thus there could be defamation without words.” Per EKANEM, J.C.A.
- TORT – DEFAMATION:Whether a plaintiff must call as witness the person(s) to whom the defamatory words were published in an action for slander; whether a statement made to the Police can constitute defamation
“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.” Per EKANEM, J.C.A.