(1961) All N.L.R. 882


Division: High Court (West)

Date of Judgment: 27th November, 1961

Case Number: Warri Suit No. W/42A/61

Before: Quashie-Idun, C. J.


Appeal and Cross-Appeal from Magistrates' Court.

The appellant brought this action in the Magistrates' Court against the respondent for damages for False Imprisonment.

The respondent made a report to the police that the appellant and other persons had caused damage to his house, and as a result of the complaint a Police officer accompanied the respondent to his village. On reaching there, the respondent identified the appellant and four other persons as the people who were responsible for damaging his house. The appellant and the others were then arrested and taken to the Charge Office for investigation. Bail was subsequently granted to the appellant.

A police constable, who was called as a witness for the appellant, gave evidence that the respondent merely pointed out the appellant as one of the people who had damaged his house; that bail was granted to the appellant before the police had concluded their investigations; that investigations revealed that there was no case against the appellant, and that the Senior Superintendent of Police had advised respondent to institute a civil action, which he did.

In the Writ of Summons the plaintiff did not allege that the defendant had made a false complaint to the police or that the complaint had been made maliciously.

Having heard evidence on behalf of both parties, the magistrate held that the plaintiff had failed to prove his case and entered a Non-Suit.

In his Judgment the magistrate stated, inter alia, that he had considered whether the complaint was false and whether the defendant had acted mala fide. He referred to a "case file" which had been tendered by the plaintiff, but successfully objected to by the defence, and stated that, had it been admissible in evidence, it would have established mala fides on the part of the defendant.

Both parties appealed against the Order, the respondent alleging that the proper Order ought to have been one of Dismissal.

On appeal:


(1) Mala fides or Malice are not in issue in an Action for False Imprisonment unless specifically pleaded by the plaintiff. If they are not so pleaded they should not be considered by the trial court in reaching its Judgment.

(2) The act of indicating to the police a person whom one suspects of having committed an offence, is not in itself sufficient to make one liable for False Imprisonment, should the police decide, on their own initiative, to arrest that person.

(3) Where, in the trial of an action, evidence has been adduced by both parties and the plaintiff has failed to prove his case, the proper Order is that of Dismissal and not of Non-Suit.

(4) An Appellate Court will set aside an Order of Non-Suit and substitute therefore one of Dismissal, where, at the trial of the action, evidence on the matters in dispute was adduced by both parties.

(5) A Court must not speculate upon the contents of a document not in evidence before it.

Appeal dismissed: Cross-Appeal allowed: Order of Non-Suit set aside: Order of Dismissal substituted.

Cases referred to:-

Adefunmilayo v. Oduntan, (1958) W.R.N.L.R. 31.

Bank of West Africa Limited v. Odiatu, (1956) L.L.R. 48.

Dawodu v. Gomez, 12 W.A.C.A. 151.

APPEAL and CROSS-APPEAL from Magistrates' Court.

Okandeji for Appellant/Cross-Respondent.

Ogbobine for Respondent/Cross-Appellant.

Quashie-Idun, C.J.:-This is an appeal against the decision of the Senior Magistrate (Aghoghovbia) Warri. The plaintiff-appellant's claim before the court was as follows:-

The plaintiff's claim against the defendant is £100 being general damages for false imprisonment in that the defendant, on the 19th February 1957, gave the plaintiff into the custody of Police constables upon a charge then made by the defendant of assault and malicious damage to property and caused the plaintiff to be imprisoned both at Aladja Town and at the police station for a total of seven hours wherefore the plaintiff claims as above.

The facts which gave rise to the institution of the action were that the defendant-respondent made a report to the police that the plaintiff and other persons had damaged his house. As a result of the complaint, a Police constable visited the village where the defendant lived. The defendant then identified five men including the plaintiff as being some of the men who had damaged his house. The constable then arrested the plaintiff and the other men, took them to the charge office for investigation. According to the constable who was called as a witness for the plaintiff, the defendant merely pointed the plaintiff out as one of the people who had damaged his house. The plaintiff was granted bail before the police concluded the investigations. The witness stated that the investigations revealed that there was no case against the plaintiff. The Senior Superintendent of Police advised that the defendant could institute a civil action in respect of his damaged property which he did.

In his Judgment the learned trial Magistrate stated that two issues were to be considered by him. The first was whether the imprisonment of the plaintiff was false, and, secondly, whether the defendant was liable on the claim for false imprisonment. In doing so, the learned trial Magistrate appeared to have considered the question as to whether the defendant in making the report had acted mala fide and whether the police officers acted on their own initiative and decided to take the plaintiff into custody. The plaintiff did not claim in his writ that the defendant had made a false complaint to the police or that the complaint had been made maliciously against the plaintiff. The question of malice therefore did not arise. The issue was simply whether the defendant was in law and on the evidence liable in damages for the detention of the plaintiff by the police. Learned Counsel for the plaintiff-appellant has referred the court to the case of Esther Adefunmilayo v. Omolara Oduntan, (1958) W.R.N.L.R. Part I at 31, in which Ademola, C.J. held, reversing a Judgment of the trial Magistrate, that where the appellant made a report of theft to the police and told the police that he suspected the respondent who was consequently detained by the police for enquiry the appellant could not be held liable in damages in a claim for false imprisonment.

Learned Counsel for the plaintiff-appellant has sought to draw a distinction between the facts of that case and the present one. He submits that in the case cited the complainant was merely acting on suspicion while in the present case, the respondent made a definite complaint against the appellant and also pointed him out to the police. It was not denied that the respondent made a complaint against the appellant and also pointed him out to the police. But it is my view that in doing so he did no more than giving information of the alleged offence upon which the police were entitled to act or not. The Police were not bound to arrest the appellant even after he had been pointed out to them. If the appellant had been known to the police it might not have been necessary for the respondent to have pointed him out. The Police could have asked the appellant to come to the police station for investigations and he could have been detained for a period during those investigations. It could not be argued that in those circumstances the respondent could be held responsible for the action of the police in sending for the appellant and detaining him while the investigations were going on. I do not accept the contention that to point out a person suspected or alleged to have committed an offence is in itself sufficient to make one liable if the police decide to arrest the person pointed out to them.

In the case of the Bank of West Africa Limited (appellants) v. Peter Ernest Odiatu (respondent) (1956) L.L.R. at 48 to which the learned Counsel for the respondent has referred, de Comarmond, C.J. held that an action for false imprisonment does not lie against a private individual who merely gives information which leads the police, on their own initiative, to arrest a suspect. In his Judgment, the learned C.J. stated as follows:-

There was clear evidence by the police that no orders for the arrest of the plaintiff were given by any Bank official ... if the police decide to arrest the alleged offender the person who called the police cannot be held responsible for false imprisonment. Where, however, the police do not deem it fit to arrest the alleged offender and the complainant unambiguously takes the responsibility of giving the man in charge, the position is different.

It is the duty as well as the right of every citizen to bring to the notice of the police either a report or a specific complaint against persons who are suspected or alleged to have committed offences. It is a matter for the police to decide what action they should take on the report or complaint.

If the police decide on an action on their own initiative which is ultimately proved to have been detrimental to the person against whom the complaint or report is made, the citizen cannot be held responsible. If the citizen were to be held responsible where he has not taken the law into his own hands the duty of investigating and detecting crimes by the police would not only be extremely difficult but efforts of the police would be abortive.

The respondent has also appealed against the Judgment of the learned trial Magistrate non-suiting the plaintiff

in his action. It is contended that on the evidence before the court, the plaintiff's claim should have been dismissed. I agree with this submission. The learned trial Magistrate's reason for non-suiting the plaintiff after evidence had been led by both parties appears to be that a "case file" which was tendered by the plaintiff, objected to on behalf of the defendant, accepted for identification and which would have proved mala fides on the part of the defendant was not in evidence. It is my view that it was not for the learned trial Magistrate to speculate as to the contents of the document which was not in evidence. If he felt that because of the absence of the case file the plaintiff had not established his case as he so stated in his Judgment, it was his duty to have non-suited the plaintiff at the close of his case. But, as I have already stated earlier in this Judgment, the question of mala fides did not arise. As the defendant gave evidence and called a witness on the material issue as to whether or not he caused the plaintiff to be imprisoned, the court should have dismissed the plaintiff's claim.

By non-suiting the plaintiff instead of dismissing the claim, there appears to be no bar against the appellant instituting the same action against the defendant and thereby taking an opportunity to introduce evidence which by his neglect he has been unable to introduce. This is contrary to the rule of practice.

In the case of Dawodu v. Gomez, 12 W.A.C.A. at 151 in which the question of dismissal or non-suit was considered, the court stated as follows:-

This is just another example of parties rushing into litigation without the necessary evidence and when it is pointed out in the Judgment where their case fails, they ask to be non-suited in order that they might have another bite at the cherry hoping to do better at their next appearance; a precedent satisfactory perhaps to the particular plaintiff and lawyers generally, but most undesirable from every standpoint.

The plaintiff-appellant's Counsel was not entitled, in my view, to have asked for his client's claim to be non-suited by the court, he did not ask for it and the learned trial Magistrate should not have made the order.

The appeal of the plaintiff-appellant is dismissed and that of the defendant-respondent allowed. The order non-suiting the plaintiff's claim is set aside and an order dismissing his claim is substituted.

Appeal dismissed: Cross-Appeal allowed:

Order of Non-Suit set aside: Order of Dismissal substituted.