False imprisonment-Damages for-Onus on defendant seeking to justify his conduct-Test applicable.

Appeal from the High Court (Mid-West).

HELD:

(1)     The power possessed by constables to arrest without warrant, whether at common law for suspicion of felony, or under statutes for suspicion of various misdemeanours is subject to the requirement that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. The test to be applied, with the onus of proof on a defendant seeking to justify his conduct, must be that of a reasonable person acting without passion and prejudice. The matter must be looked at objectively, and in light of the facts known to the defendant at the time, not on subsequent facts that may come to light.

(2)     On the facts of this case, once the 1st defendant was told the plaintiff worked in the Posts and Telegraphs he had no possible justification to disbelieve him, especially when he saw exhibits A, B and C. Consequently, the Chief Magistrate came to a right conclusion and the judge on appeal was in error in reversing him.

Appeal allowed: judgment of High Court set aside.

Cases referred to:

Dumbell v. Roberts (1944) 1 ALL. E.R. 326.

John Lewis and Co. Limited v. Tims (1925) 1 ALL. E.R. 1203.

Allen v. Wright 8. Car. and P 522.

Wright v. Sharp (1947) L.T. 308.

McArdle v. Egan (1933) All. E.R. 611.

Dallison v. Caffery (1965) 1 Q.B. 348.

Herniman v. Smith (1938) A.C. 305.

Shaaban Bin Hussein v. Chong Fook Kam (1969) 3. ALL. E.R. 1626.

Laws referred to:

Local Government Law (Mid-West) section 255.

Law enforcement Law (Mid-West) section 3 (1).

APPEAL from the High Court (Mid-West).

Unurhoro for the plaintiff/respondent/appellant.

Akporiaye for the defendants/appellants/respondents.

Lewis, J.S.C. (delivering the judgment of the court):-The plaintiff's claim before the Warri Chief Magistrate in suit MW/287/62 read-

"The plaintiff's claim against the defendants jointly and severally is for the sum of £250 (Two hundred and fifty pounds) being general damages suffered by the plaintiff as a result of the defendant's false imprisonment of the plaintiff at Warri and Ajamagha village, Warri, within the Warri Magisterial District.

At all material times the plaintiff was an employee of the Post and Telegraphs Department, Nigeria, Agbadu, Central Urhobo while the 1st and 2nd defendants were messenger and rate clerk respectively of the Warri Divisional Council, Ekurede, Warri.

The 1st defendant, on the 25th day of September, 1962, at about 7 a.m., without lawful justification, arrested the plaintiff at Igbudu, Warri upon a false charge, then made by the 1st defendant, of failing to pay tax or rate in respect of the current financial year, and forcibly dragged and took the plaintiff to the 'Grade C' Customary Court, Ajamagha village, Warri.

The 1st and 2nd defendants on the date aforementioned hereon then detained the plaintiff or caused the plaintiff to be detained against his will for about five hours in the 'Grade C' Customary Court cell or custody, Ajamagha village, Warri, until bail was granted at about 6 p.m.

The plaintiff was eventually discharged on the 4th day of October, 1962, when the President of the 'Grade C' Customary Court, Ajamagha, Warri dismissed the charge. By reason of the said premises the plaintiff has suffered damages and claims as above.

The defendants have failed and/or neglected to pay in spite of repeated demands made on them by the plaintiff.", and on the 9th of May, 1964 the Chief Magistrate, Mr F.O.M. Atake (as he then was), gave judgment for the plaintiff for £100 damages and 35 guineas costs against both defendants jointly and severally. In his judgment the learned Chief Magistrate made findings of fact stating inter alia-

"I here set out those facts which I accept. The plaintiff a P. and T. worker at Agbarho, outside the jurisdiction of the Tax Area of the Warri Divisional Council came to Warri to his departmental provincial headquarters to receive his salary on 25-9-62. At Egbudu, i.e. at the entrance into Warri township, the 1st defendant a messenger attached to the Rate Clerk of the Counsel saw him and demanded to know of him if he, the plaintiff, had paid his current tax. The plaintiff told him that he was a P. and T. worker and that he was going to his headquarters to receive his wages; that he pays tax under the P.A.Y.E. system which is to say that tax is deducted from his salary monthly. He had with him at the time his P. and T. hat, rain-cape, a union card on him is fixed his photograph in P. and T. uniform. He showed all to the 1st defendant. But the 1st defendant insisted that he must show a tax receipt or else he was arresting and taking him to court. The plaintiff then offered to hire a taxi and carry the 1st defendant to his provincial head of department who would further satisfy the 1st defendant on the issue. The 1st defendant refused to accept the offer. Fortunately a man Ope was passing by and the plaintiff hailed on him and requested him to report the matter to his head of department.

Before this man returned to Egbudu, 1st defendant had taken plaintiff into custody and had taken him to 2nd defendant at the Rating Office at Ajamogha."

The learned Chief Magistrate went on later in his judgment to say-

"Once imprisonment is proved it is for the defendants to justify it. The defendants have accordingly attempted to justify this imprisonment by saying that they have a right to arrest and detain the plaintiff being local government officers. That may well be so and indeed that is the only defence they raised which is pertinent in my view as I entirely reject their story and that of their witnesses whether they be court presidents or messengers. They all appear to me to be lying to save the skins of fellow workers.

Mr Akporiaye for the defendants has contended that the test is a subjective one: once the defendants say that they have reasons to suspect that the plaintiff had not paid his tax, their reasons were not to be asked for and examined. I am afraid I disagree with him. The test must be an objective one: the test is that of the reasonable man. Would a reasonable man acting with prudence and caution have come to the view that the plaintiff had not paid his tax. I think not.

Note that both defendants know only too well on their own admission that P. and T. workers pay as they earn. There was before the defendants, a P. and T. hat, rain-cape, union card carrying the photograph of the plaintiff in P. and T. uniform.

There was the request by the plaintiff to take 1st defendant to the head of department to prove that he the plaintiff is a P. and T. worker and that he pays tax as he earns. The defendants turned all these down. All the defendants could do is arrest on reasonable suspicion. But it is not open to them deliberately to be blind to all efforts by the suspect to dislodge their suspicions and to prove that he in fact commits no offence whatsoever.

I am satisfied that the defendants were acting out of pique."

On appeal to the High Court Begho, J. (as he then was) allowed the appeal and set aside the award of damages and costs and dismissed the plaintiff's claim without awarding costs. The learned judge on appeal was of the view that the defendants had reasonable suspicion for the arrest and detention of the plaintiff and so had justified their conduct. In his judgment he stated inter alia-

"The plaintiff carried and produced no legal evidence such as the interim certificate of payment of income tax under the P.A.Y.E. scheme (exhibit F) or the final certificate of payment (like the specimen exhibit G). Legally, until a suspected tax defaulter produces something in the nature of exhibit F and G which appear to be the only legal evidence of payment, there is reasonable suspicion for arresting him. The mere fact that in wearing native dress' the arrested person carries with him a P. and T. hat, rain-cape and union card to show that he is a P. and T. employee, is no conclusive proof that the man is really a P. and T. employee as any one can come into possession of these things. Even if the things indicate that the man is a P. and T. employee they do not indicate that he pays his tax under the P.A.Y.E. scheme. Even a payslip is not an acceptable legal proof in the Region for payment of tax under the P.A.Y.E. scheme.

The plaintiff himself admitted that when he was halted on the road by the 1st defendant he was asked if he had paid his 1962 tax and he explained that he was a P. and T. worker paying under the P.A.Y.E. scheme. The 'charge on suspicion' was there on the spot made known to the plaintiff and he offered an explanation which was not accepted."

The plaintiff has appealed to this Court but we were informed at the outset of the appeal that the 2nd defendant had since died and Mr Unurhoro for the appellant then stated that he did not wish to pursue the appeal against the 2nd defendant but confined it to the 1st defendant so the appeal as against the 2nd defendant was dismissed.

The main point taken on the appeal was whether the learned judge on appeal was right to reverse the learned Chief Magistrate and to find that there was reasonable suspicion for the 1st defendant to arrest and detain the plaintiff. Mr Unurhoro for the appellant submitted that having regard to the findings of fact of the learned Chief Magistrate, which were accepted by the learned judge on appeal, and to the admission of the 1st defendant that he knew that Post and Telegraphs workers paid their taxes by the P.A.Y.E. system, the 1st defendant should not have arrested the plaintiff and disbelieved his story especially when the 1st defendant in his evidence denied that the plaintiff offered to take him to see the head of his Posts and Telegraphs department in Warri and this denial was also not believed by the Chief Magistrate.

Counsel for the appellant submitted that false imprisonment had been made out and relied on Dumbell v. Roberts [1944] 1 All E.R. 326 in particular at page 329 where Scott, L.J. said-

"The power possessed by constables to arrest without warrant, whether at common law for suspicion of felony, or under statues for suspicion of various misdemeanours, provided, always they have reasonable ground for their suspicion, is a valuable protection to the community; but the power may easily be abused and become a danger to the community instead of a protection. The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statues, that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited. The police are not called on before acting to have anything like a prima facie case for conviction; but the duty of making such inquiry as the circumstances of the case ought to indicate to a sensible man is, without difficulty presently practicable, does rest on them; for to shut your eyes to the obvious is not to act reasonably.

I am not suggesting a duty on the police to try to prove innocence; that is not their function; but they should act on the assumption that their prima facie suspicion may be ill-founded. That duty attaches particularly where slight delay does not matter because there is not probability in the circumstances of the arrest or intended arrest, of the suspected person running away."

He further submitted that if the 1st defendant had not been satisfied with the explanation at the least he should have gone off to investigate, as the plaintiff asked him to do, at the plaintiff's headquarters and he relied on John Lewis and Co. Limited v. Tims [1952] 1 All E.R. 1203 though that case in fact turned on the requirement to take and arrest a person before a justice of the peace or a police officer as soon as reasonably possible.

In our view the test to be applied, with the onus of proof on a defendant seeking to justify his conduct, was laid down in 1838 by Tindal, C.J. in Allen v. Wright 8 Car. and P. 522 where he said that it must be that of a reasonable person acting without passion and prejudice.

The matter must be looked at objectively, and in light of the facts known to the defendant at the time, not on subsequent facts that may come to light as is shown by Wright v. Sharp [1947] L.T. 308. Lord Wright in McArdle v. Egan [1933] All E.R. Rep. 611 at 613 showed that the responsibility is ministerial and not judicial when he said-

"It has to be remembered that police officers, in determining whether or nor to arrest, are not finally to decide the guilt or innocence of the person arrested.

Their functions are not judicial, but ministerial." We would also refer to the judgment of Diplock, L.J. (as he then was) in Dallison v. Caffrey [1965] 1 Q.B. 348 as to the question of reasonableness in a case involving both false imprisonment and malicious prosecution where at page 371 he said-

"One word about the requirement that the arrestor or prosecutor should act honestly as well as reasonably. In this context it means no more than that he himself at the time believed that there was reasonable and probable cause, in the sense that I have defined it above, for the arrest or for the prosecution, as the case may be. The test whether there was reasonable and probable cause for the arrest or prosecution is an objective one, namely, whether a reasonable man, assumed to know the law and possessed of the information which in fact was possessed by the defendant, would believe that there was reasonable and probable cause. Where that test is satisfied, the onus lies on the person who has been arrested or prosecuted to establish that his arrestor or prosecutor did not in fact believe what ex hypothesi he would have believed had he been reasonable (see Herniman v. Smith (1938) A.C. 305, 316 per Lord Atkin). In the nature of things this issue can seldom seriously arise."

The test of what is reasonable suspicion is not as high as establishing a prima facie as Lord Devlin in Shasban Bin Hussain v. Chong Fook Kam [1969] 3 All E.R. 1926 in an appeal from the Federal Court of Malaysia made clear in the Privy Council when he said at 1630-

"Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking; 'I suspect but I cannot prove.' Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is indeed desirable as a general rule that an arrest should not be made until the case is complete. But if arrest before that were forbidden, it could seriously hamper the police. To give power to arrest on reasonable suspicion does not mean that it is always or even ordinarily to be exercised. It means that there is an executive discretion. In the exercise of it many factors have to be considered besides the strength of the case. The possibility of escape, the prevention of further crime and the obstruction of police enquiries are examples of those factors with which all judges who have had to grant or refuse bail are familiar. There is no serious danger in a large measure of executive discretion in the first instance because in countries where common law principles prevail the discretion is subject indirectly to judicial control."

Mr Akporiaye for the 1st defendant/respondent submitted that the learned judge on appeal was right to reverse the learned Chief Magistrate as the 1st defendant had reasonable grounds for suspicion in that exhibit C might not have belonged to the plaintiff and was not dated, that he had authority to go in search of tax evaders and had arrested 13 of them with the plaintiff, and that even accepting that exhibits A, B and C were shown to the 1st defendant he was entitled to require further proof and was not to be expected to go to the P. and T. headquarters for confirmation as he was asked to do.

This however to our minds quite overlooks that the arrest was made at 7.00 a.m. and the 1st defendant did not hand the plaintiff over to the 2nd defendant till 9.30 a.m. and that exhibit C in fact was shown to be an up-to-date union card in the P. and T. with a photo in it of the plaintiff in uniform. The circumstances that there were other arrested persons is to our mind quite immaterial so far as the plaintiff was concerned and if the 1st defendant wanted to investigate further then he should have done so in the 2½ hours that he held the plaintiff as the headquarters of the P. and T. was in Warri and the arrest was made in Warri town. In our view however once the 1st defendant was told the plaintiff worked in the P. and T. he had no possible justification to disbelieve him, as he stated in his evidence that he did, especially when he saw exhibits A, B and C. Indeed we think it not unimportant that in his evidence he sought to pretend that exhibits A, B and C were not shown to him, though this was disbelieved by the learned Chief Magistrate. Similarly the denial of the 1st defendant that the plaintiff asked him to come and see his "boss" at the P. and T. Warri was disbelieved by the learned Chief Magistrate. It seems to have been assumed by the learned judge on appeal, and indeed Mr Akporiaye sought to argue before us, that there was a legal requirement to carry a final certificate of payment of income tax under the P.A.Y.E. system, but he was quite unable to show us any legal authority for that proposition. He relied on section 255 of the Local Government Law which reads-

"255.Any person who, without lawful justification or excuse, the proof of which shall lie on the person charged, refuses or fails to pay any rate payable by him under this Law on or before the date on which it is payable, shall be guilty of an offence and shall be liable on conviction to a fine of one hundred pounds or in default of payment to imprisonment for one year."

but later conceded that that section pertains to refusal or failure to pay any rate payable under that Law and had nothing to do with P.A.Y.E. The 1st defendant had admitted in his evidence that he knew that P. and T. workers were paid by the P.A.Y.E. system as he said-"I know that workers in the P. and T. pay tax as they earn", and he himself was in like situation as he said-"I paid tax as I earned last month, I have no receipt yet. I have no pay slips to that effect."

We do not think that solely because the plaintiff was unable to produce a tax receipt that this in itself discharged the onus on the 1st defendant to justify his arrest and detention of the plaintiff, as the 1st defendant had said inter alia in his evidence-"from the time I arrested the plaintiff I did not allow him to move to any other place", by showing that he had reasonable suspicion of the plaintiff of committing an offence. The 1st defendant's powers were admittedly no higher or lower than that of a police officer, in particular under section 20 of the Police Act, having regard to section 3 (1) of the Law Enforcement Law, and if the matter is looked at objectively through the eyes of a reasonable man, he could have had in our view no reasonable suspicion of an offence. It was no more incumbent on the plaintiff when challenged by the defendant to fully prove his innocence than for the 1st defendant to have at that moment proof, even prima facie proof, of his guilt, and the only issue was whether the 1st defendant discharged the onus on him of justifying his arrest and detention of the plaintiff by virtue of having reasonable suspicion of an offence, and, as we have indicated we do not think he did for either.