CHIEF IGNATUS IKE OKPALA... PLAINTIFF DIAMOND BANK PLC... DEFENDANT JUDGMENT

Transcription

1 IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA BEFORE HIS LORDSHIP, HON. JUSTICE A.A.I BANJOKO JUDGE SUIT NO: FCT/HC/CV/453/09 BETWEEN: CHIEF IGNATUS IKE OKPALA... PLAINTIFF AND DIAMOND BANK PLC.... DEFENDANT OGECHI OGBENNA FOR THE PLAINTIFF JOHN GODWIN FOR THE DEFENDANT JUDGMENT By way of a Writ of Summons dated and filed on the 22 nd day of January 2010, the Plaintiff is praying this Court for:- i. A Declaration that the arrest and detention of the Plaintiff by the staff of the Defendant is unlawful and constitute a false imprisonment of the Plaintiff. ii. An Order of this Court mandating the Defendant to return to the Plaintiff a Diamond Bank cheque number forcefully taking away from the Plaintiff by the Defendant. iii. N20,000, (Twenty Million Naira) only aggravated general damages for false imprisonment of the Plaintiff. iv. Cost of this action. In response to the Plaintiff Statement of Claim, the Defendant s Statement of Defence was dated and filed on the 11 th day of June 2010 via a Motion seeking an extension of time to file same. 1

2 The Plaintiff filed a Reply to the Statement of Defence dated the 1 st of July 2011 and filed on the 6 th of July All processes were duly served. The facts of the Plaintiff s claim is that sometime in 2005, he granted a soft loan of N3,000, (Three Million Naira) only to James Igweonu, a customer of the Defendant. Consequently an agreement was drawn out between the two parties, and this agreement was tendered into evidence and marked as Exhibit A. Based on this Agreement, James Igweonu issued him a Diamond bank postdated cheque in the sum of N3,000, only, and a copy of the cheque was tendered into evidence and it was marked as Exhibit B. On the 14 th of September 2006, upon the maturity of the cheque, he presented the cheque before the Defendant s bank at their Central Business District, Abuja for clearance, but instead of paying him, he was detained by the Defendant at their office for over eight hours, interrogated, draggedand handcuffed by the staff/security guards of the Defendant and deprived of food or water even when he pleaded with them to allow one the security guards to buy them for him at his expense. The Plaintiff called some of his friends on the telephone, amongst who were Doctor Emma Nwufo and Dan Eze the (PW2). At the arrival of Emma Nwufo, the Plaintiff was brought out from the room and kept behind a counter. The Defendant refused to release him and stipulated a condition that he provides a current account holder, with the Defendant s bank, presumably as surety. Since Emma Nwufo s account with the defendant bank was dormant, the Plaintiff could not be released. The Plaintiff also called on Ikechukwu Ezechukwu by phone, who eventually secured his release with an undertaking to produce him whenever he was needed by the Defendant, and the letter of undertaking was tendered and marked as Exhibit C. Chief Okpala stated that at the time he left the bank, the defendant bank did not pay him the money due on the cheque and neither did they give him back the cheque. He also claimed that when the staff of the Defendant took him to the site where Mr. Igweonu could be 2

3 found, the security did not allow him to leave the vehicle and the staff came back claiming that nobody on the site knew of Mr. Igweonu. After his release, he informed Mr. Osita, the person who connected him to James Igweonu and related the whole incident to him. The following day, Mr. Igweonu came to his house and he, together with Mr. Igweonu, Ikechukwu Ezechukwu, Dan Eze and Emma Nwufo went back to the bank where James Igweonu confirmed to the Defendant that he was the person who issued the cheque. He finally stated that uptil this moment, he has not recovered his money from James Igweonu, adding that whenever he asked for the pay back of his debt, Mr. Igweonu tells him that he has issued a cheque to him and he should go to the Defendant to cash the cheque. He finally urged the Court to grant all his prayers. Under cross examination, the Plaintiff admitted that he has plans to sue James Igweonu, but his lawyer advised him that without the cheque he would not have a good case. He stated further that James Igweonu claims to have paid him since he had issued a cheque to him and he would not know if the cheque has been cashed as if it had, it ought to have been reflected in James Igweonu statement of account with the defendant bank. Chief Okpala denied signing the cheque on Igweonu s behalf. He agreed with the defence counsel that if his signature is different or irregular in any cheque he issues, his bank will call and inform him and they would not honour the cheque. He also agreed that if his bank calls to clarify if he has issued a cheque and if it is found that he has not, it will be prudent for the bank to cause an investigation into the matter. He further maintained that he was tortured, locked up from morning till 8.00p.m. and handcuffed. It is his evidence that he did not see any Policemen on the premises but only security guards of the bank. He maintained that he was not the one who issued the cheque and signed it, he also stated that the signature on the cheque is the same with that on the agreement. Further, if he had committed any criminal act, he would have expected the Defendant to take him to 3

4 the Police Station. He admitted placing a call to the D.P.O. who told him they were coming but he did not see them. He maintained the fact that James Igweonu told the staff of the Defendant that he issued the cheque to the Plaintiff. He also stated that even if the cheque was not proper, the Defendant ought to have given him back the cheque and not imprisoned him. He finally stated that he filed the matter earlier in a previous High Court but it was struck out because the Lawyer he earlier engaged was not diligent in prosecuting the action. There was no re-examination of this witness. P.W.2, Mr. Dan Eze was sworn to on the Holy Bible, he adopted his witness statement on oath, and confirmed P.W.1 stestimony addingthat he got a call from P.W.1 that he was detained at the Defendant s bank and when he went the next day to the bank with the parties, the cheque was not returned to the Plaintiff. He also stated that when he responded to the plaintiff s call for assistance at 6 p.m. on the day of the incident, he met the plaintiff still there. Under cross examination, P.W.2 stated that he has been friends with the P.W.1 for over two years and also knows James Igweonu through P.W.1 as they are friends.the last time he saw Mr. James Igweonu was when they (P.W.1, Barrister Ezechukwu and James Igweonu went to the bank on the 15 th of September 2006). He testified that he did not meet any Policeman on duty, but rather saw the defendant bank s security men as he knows one when he sees one. There was no re-examination of this witness and with that, the Plaintiff closed his case. The Defence opened his case by calling its sole witness Nweze Ogbu who is the current Head Branch Operator of the defendant s bank for the South East region. He adopted his witness statement and testified that on the presentation of the cheque by the Plaintiff, its staff scrutinized the cheque, and realized that the signature on the cheque was significantly different from the one contained on the mandate card of the customer who is the sole signatory of the account. A copy of the mandate card was tendered and admitted into evidence as Exhibit D. 4

5 He also tendered the account opening documentation and the certified true copy of its Corporate Affairs Commission with particulars of the Directors and Shareholder(s) as documents to show the true signature of Mr. James Igweonu.These documents were tendered and marked as Exhibits E and F respectively. Mr. Nweze further told the Court that the amount of money in Igweonu account was less that N3,000,000.00, so the cheque could not be honoured and Mr. Igweonu had instructed them not to honour any cheque unless it contains the Company seal, and since the cheque had no seal it could not be honoured. It is his further evidence that he called Mr. Igweonu to confirm if he issued the said cheque, but he denied issuing the cheque and infact stated that he did not know the Plaintiff. Immediately, he alerted a Policeman and staff who questioned the Plaintiff and naturally prevented him from leaving the bank pending the resolution of the issue, since a crime had already been committed with another one about to be committed. D.W.1 stated that the Plaintiff, Policeman and some staff of the Defendant went to Gwarimpa to look for Mr. Igweonu as the Plaintiff told them he could be found there, but on their arrival, no one knew Mr. Igweonu. On their return to the bank, as they were about arranging for how the Plaintiff could be taken to the Police Station,Mr. Ikechukwu Ezechukwu a customer of the bank came and said that he knew the Plaintiff. Mr. Ikechukwu said there had probably been a misunderstanding which the Plaintiff would be able to clear if he was allowed to go and look for Mr. Igweonu and he vouched for the Plaintiff. Chief Okpala on this note was released to go and trace Mr. Igweonu and was to return shortly thereafter but he never returned, and instead filed this action. He finally told the Court that all efforts to reach Mr. Igweonu after this event had proved abortive and Mr. Igweonu has stopped operating the account which became dormant in June He tendered a copy of the statement of account of Mr. Igweonu which was admitted and marked as Exhibit G and also a copy of the cheque which was marked as Exhibit H. 5

6 Under cross examination, Mr. Nweze stated that once an instruction is contained in the mandate card, no customer is privy to the instruction because transactions with customers are private. He stated that when a signature is irregular, depending on the nature of the irregularity they normally call the issuer of the cheque to confirm the transaction which they did in this case. If they are given the go ahead by the customer, they will pay out, but when he says it was not issued by him, it means the cheque was either stolen or cloned. D.W.1 further stated that Mr. Igweonu said he never issued any cheque to the Plaintiff. He however admitted that they went to Gwarimpa to meet Mr. Igweonu but there was no one like that and no one on the site knew of Mr. Igweonu. However, he maintained that the signature on the cheque was false and Mr. Igweonu account was not funded at all. He admitted that the Plaintiff was not detained at the Police Station and agreed with the plaintiff s counsel that Mr. Igweonu never reported that his cheque was missing. D.W.1 denied arresting the Plaintiff and stated that they did not have the power to detain him. He further stated that they never arrested the Plaintiff on account of lack of Company seal being present on the cheque. It is his evidence that he cannot remember the time the incidence took place. He told the Court that normally when a private person arrests a suspect, he is to hand him over to the Police. He stated that the Defendant had stationed Policemen and so there was no need for the staff to make a formal report to the Police Station. He stated that there was no investigation conducted after that incidence because the Plaintiff failed to come back after he left the bank. The letter of undertaking was written to secure the Plaintiff s production whenever he was needed and he stated that the undertaking was not a bail bond. 6

7 D.W.1 also told the Court that the Plaintiff did not leave the bank late and Mr. Igweonu is no longer a customer of the bank. He finally stated that after they got back from Gwarimpa Estate, the Plaintiff left their bank, as a well-known customer of theirs was already at the bank, promising to produce the Plaintiff whenever he was needed. With his evidence, the Defendant closed their case. The Defendant s Written Address was dated the 24 th day of July 2012 and filed on the 25 th day of July While the Plaintiff s Written Address was dated and filed on the 16 th of November Processes were duly served, argued and adopted. The Defendant raised three issues for determination which are:- 1. Whether by virtue of the law and facts of this case, the Defendant even without the presence of a Policeman, has the right to execute a citizen arrest on reasonable suspicion of a crime being committed in its presence and whether such arrest will amount to false imprisonment. 2. Whether the Plaintiff has established any circumstance to entitle him to a return of the dud cheque issued to him by Igweonu Associate Nigeria Limited. 3. Whether the Plaintiff has placed sufficient facts and evidence before this Court entitling him to his claim for damages and cost. The Plaintiff on his own part distilled four issues for determination which are:- 1. Whether by the dehumanization, arrest and detention of the Plaintiff by the security guards of the Defendant without handing him over to the appropriate authority is unlawful, illegal and amount to false imprisonment. 2. Whether due to the false imprisonment, the Plaintiff did not suffer tremendously both psychological, physical tortures and loss of earning as a result of his liberty being infringed/interfered with. 3. Whether by the facts of the case and evidence adduced, the Plaintiff successfully made out a case of detinue against the Defendant for the return of the cheque. 7

8 4. Whether on the preponderance of the evidence adduced, the Plaintiff is not entitled to his claim for general damages for false imprisonment. It is worthy to note that on the 18 th of March 2011, the Plaintiff filed his settlement of issues for determination which are:- 1. Whether by the dehumanization, arrest and detention of the Plaintiff by the security guards of the Defendant without handing him over to the appropriate authority is unlawful, illegal and amount to false imprisonment. 2. Whether due to the false imprisonment, the Plaintiff did not suffer tremendously both psychological, physical tortures and loss of earning as a result of his liberty been infringed/interfered with. 3. If issues 1 and 2 are in the affirmative, whether Plaintiff is not entitled to his claim for general damages for false imprisonment. The defendant did not settle any issues for determination but raised same in his written address filed before the Court. The settled issues for determination raised by counsel to the plaintiff are essentially the same as that raised in his Statement of Claim After a careful consideration of the evidence led and the pleadings of both parties as well as their respective written addresses, the Court will raise the following issues for determination as follows- 1. Whether the Defendant in the absence of the Police had the right to citizen s arrest based on a reasonable suspicion of a crime being committed andwhether the arrest and detention of the Plaintiff in this case by the security guards of the Defendant without handing him over to the appropriate authority is unlawful, illegal amounting to false imprisonment. 2. Whether the Plaintiff has successfully made out a case to entitle him to the return of the cheque issued to him by Mr. Igweonu. 3. Whether the Plaintiff is entitled to his claim for general damages and cost. 8

9 On Issue One, the Defendant s Counsel submitted that a private person may effect an arrest of a person who he reasonably believes to be committing an offence in his presence and relied on Section 24 of the Criminal Procedure Code Act. Learned Counsel further argued that the cheque presented by the Plaintiff was a Company s cheque which required the signature of Mr. Igweonu and the seal of the Company, and submitted that the signature on the cheque was different from Exhibits D, E and F, the account and corporate details, and added that the cheque issued did not have the proper signature of Igweonu and the seal of the Company. He further submitted that the Court has the right to compare a signature when same is disputed. He relied on the case of NDOMA- EGBA VS ACB PLC (2005) 14 NWLR (PART 944) S.C. 97 where the Court held that It is important to look at the disputed signature and compare same with the authentic signature, to discover if the dissimilarities are so obvious as to be easily discernible. Learned Counsel stated that the account did not have sufficient funds to cover the cheque, and these inconsistencies made the Defendant suspect something was amiss. He placed a call to Mr. James Igweonu who informed him that the cheque was never issued out by him to the Plaintiff and this made the Defendant believe that stealing of the cheque leaf and forgery/cloning of the cheque leaf had been committed. The Defendant also submitted that the crime of fraud and obtaining by false pretence was committed and it was based on thisfact that they immediately alerted a Policeman who prevented the Plaintiff from leaving the bank. He relied on Paragraph 16 of the Statement of Defence and he urged the Court to hold that the apprehending of the Plaintiff was in consonance with the provisions of Section 24 (d) of the Federal Capital Territory Criminal Procedure Code Act. Learned Counsel further submitted that the mere brandishing of the word false imprisonment by the Plaintiff is not sufficient to ground a claim in false imprisonment as the Plaintiff must prove that the actions of the Defendant amounted to false imprisonment. 9

10 He defined false imprisonment to mean the imprisoning of a person without any justification from exercising his right of leaving a place in which he is, and he relied on the case of BARAU VS CHABA (1995) 1 NWLR (PART 371) 369 PARAGRAPHS B C. Learned Counsel further submitted that for a person to be liable in false imprisonment, it must be demonstrated that the Defendant intended to confine the Plaintiff, and the Plaintiff did not consent to the confinement. He argued that the Defendant has shown this Court that it did not set out to confine the Plaintiff in anyway,as the relationship of the parties arose when the Plaintiff voluntarily walked into the Defendant banking hall and tendered the cheque. Learned Counsel submitted that the Defendant had no intention to confine the Plaintiff that was why it immediately allerting a Policeman on noticing the crime and referred to Paragraphs 10 and 13 of the Statement of Defence. He further submitted that the Plaintiff failed to lead by credible evidence to show how he was confined and argued that the law is trite that the burden of proof rests with the party who asserts the positive and not on one who asserts the negative, and to this he cited the case of NSEFIK VS MUNA (2001) 10 NWLR (PART 1043) 514 PARAGRAPHS D F. On whether the Plaintiff was detained, Learned Counsel submitted that the Plaintiff did not leave the bank late and added that DW1 s evidence was never contradicted. To buttress his case, he further submitted that the Plaintiff went to Gwarimpa with them after he had informed them that Mr. Igweonu could be found at the site. If the Plaintiff was detained, he would not have willingly participated in the attempt to resolve the matter as he had pleaded with them not to be handed over to the Police. It is his further submission that assuming without conceding that there was some form of confinement, it could only be said to have happened at the initial apprehending of the Plaintiff, and this brief period even if interpreted as confinement cannot be said to be unlawful, as it was done pursuant to the law. 10

11 Learned Counsel urged the Court to note the following:- 1. The Defendant had legal authority under Section 24 of the Federal Capital Territory Criminal Procedure Code Act to apprehend the Plaintiff upon noticing a crime being committed in its presence. 2. There was probable cause to effectuate the arrest. 3. Even if there was any right of complaint, the Plaintiff waived it when he pleaded not to be taken to a Police Station but rather to be allowed to sort out the situation. Responding to this issue, Learned Counsel to the Plaintiff submitted that the tort of false imprisonment is the restraining or detaining of a person, if the person doing or causing the imprisonment has no right in law to imprisonthat other person and he cited the case of MANDELAS KARABERIS LTD VS. APENA (1969) 1 NMLR 199 referred to P138 PARAGRAPH A. He further submitted that the law is settled that an intention to frighten a victim so that he could not move or escape was sufficient to be found as tort of false imprisonment. Reliance was placed on the case of FIRST BANK OF NIG PLC VS ONUKWUGHA (2005) 16 NWLR PART 950 PAGE 121 and STROUD S JUDICIAL DICTIONARY OF WORDS & PHRASES 7 TH EDITION VOL 2 F 953. Counsel submitted that on the Plaintiff s presentation of the cheque, the Defendant ought to have either honoured or dishonoured the cheque or if they had any doubt about the genuineness of the cheque, one hour was sufficient to make enquires to clarify such doubt and hand him over to the nearest Police Station. It is his further contention that the Defendant had no right in law to bring in their security guards to handcuff him like a common criminal, drag him into an empty room and lock him up for over nine (9) hours without water or food. He further argued that the inhuman treatment on the Plaintiff was wrong just for the reason that the signature was irregular, had no company seal and the money left in the account was below N3,000, He submitted that during the interrogation of the Plaintiff by the bank, when he produced the agreement he had with Mr. Igweonu, 11

12 this ought to have proved that he was innocent as the signature on the cheque and that on the agreement were the same. Learned Counsel urged the Court to look at the cheque and agreement and would note that both signatures are the same which infers that Mr. Igweonu had a mischievous intention to defraud the Plaintiff from the onset. It is his argument that the arrest, detention, humiliation and false imprisonment was planned and executed by the debtor and his banker to deprive the Plaintiff of his money. The Plaintiff s Counsel submitted that he agrees with the Defendant that the signature on the mandate card and the instruction given at the opening of the account are not in conformity with that on the cheque and he relied on the Section 101 (1) of the Evidence Act Counsel also raised two questions which he answered in the negative; which are whether the cheque in question was issued by the Plaintiff, and whether the Plaintiff was privy to the information on the Defendant s customer s mandate card. It is his argument that the Plaintiff is not expected to be privy to the information on the mandate card of another customer, so he could not have known that the signature on the cheque given to him was different. To buttress this point, he relied on DW1 cross examination where he testified that information done with their customers are strictly private. Learned Counsel submitted that false imprisonment involves the unlawful, illegal and unjustifiable restraint of a person s right and liberty to move freely and relied on the case of UAC (NIG) PLC VS. SOBODU (2007) 48 PAGE 42 PART 58 PARAGRAPHS It is his submission that the Defendant unlawfully and unjustifiably detained the Plaintiff under unbearable conditions. It is his further argument that since Mr. Igweonu never complained his cheque was missing, the Defendant were wrong when they stated that a crime had been committed and another one was about to be committed. Mr. Ogechi Ogbenna further submitted that they are aware that a private person may effect an arrest of a person reasonably believed to be committing an offence in his presence but where the arrest is 12

13 made by the private person, he has no duty to detain the Accused Person in his custody. He referred to Section 39 (1) and (2) of the Criminal Procedure Code. It is his submission that the Plaintiff was not taken to the Police Station instead was handcuffed, confined in an empty room and subjected to human degradation. He urged the Court to note that the Defendant took the Plaintiff to Gwarimpa Estate to ascertain that James Igweonu issued the cheque even after they reportedly spoke to him on the phone when they claimed he had confirmed to them that the cheque was neither issued by him nor was the Plaintiff known to him. It is his submission that with such initial confirmation by phone, the Defendant ought to have taken the Plaintiff to the Police Station as a criminal and not continue to detain him at their office. Learned Counsel contended that the Defendant s contradiction under cross examination that there was no need for the formal report at the Police Station signified that the Defendant had the ability to aid and abate a criminal. It is Learned Counsel submission that the law is trite that an intention to frighten a victim so that she could not move or escape was sufficient to a tort of false imprisonment. He further submitted that the movement of the Plaintiff from the counter to the inner office of the Defendant with security guards, automatically put fear into him even before the handcuffing was done. The Defendant, never contended that there was no arrest, humiliation and detention of the Plaintiff but instead justified the detention as legal. Learned Counsel further argued that the Plaintiff was not handed over to any Police neither was he taken to the Station even after the confirmation that he was a criminal. Rather, they confined him in their premises and released him after insisting that a customer of theirs holding a current account sign an undertaking. He relied on Exhibit C which he stated was contrary to a bail bond if he was handed over to the Police. Learned Counsel submitted that the Defendant failed to address the issue that was raised flowing from the claim of the Plaintiff. 13

14 Counsel agreed with the Defendant s Counsel that the ingredients raised were necessary before a person could be liable for false imprisonment, but contended that the application reached was wrong. It is his contention that false imprisonment of the Plaintiff did not start the moment the Plaintiff walked into the bank, but commenced immediately after the Plaintiff tendered the cheque. He finally submitted that the Plaintiff did not consent to the confinement and the detention was unlawful as the Defendant had the opportunity to take the Plaintiff to the Station but decided to take the laws into their hands and he urged the Court to hold issue number one in the affirmative. It is the contention of the Plaintiff that he was handcuffed, dragged and locked up for over eight hours by the Defendant without food or water for no just cause which amounts to false imprisonment. The Defendant never denied this assertion. It is imperative for the Court to define what false imprisonment is. In AFRILEC LTD & ORS VS LEE (2012) LPELR 7872, BAGE JCA defined it as complete deprivation of liberty for anytime however short, without lawful cause. Imprisonment is no other thing but the restraint of a man s liberty whether it be in the open field, or in the stocks or in the cage, or in a man s own house. The party so restrained is said to be a prisoner so long as he has not his liberty to freely go to all places he wishes to go. So long as his movement is constrained by the will of another person it is false imprisonment. In the case of ARAB CONTRACTORS (O.A.O.) NIGERIA LTD VS GILLIAN UMANAH (2012) LPELR 7927 (CA), it was held as trite that the term false imprisonment as a common law misdemeanor and a tort, denotes a restraint of a person in a bounded area without any justification or consent, and applies to both private as well as governmental detention. According to R.F.V. HEUSTON, IN SALAMOND ON THE LAW OF TORTS, 17 TH EDITION, 1977 AT 123, regarding the tort of false imprisonment, false is used, not in the ordinary sense of mendacious or fallacious, but in the less common though well-established sense of erroneous or wrong, as in the phrases of false quantity, false step, false taste etc. 14

15 In the case of OKEKE VS IGBOERI (2010) LPELR-4712 CA, the tort of false imprisonment is the restraining or detaining of a person, if the person doing it or causing the imprisonment has no right in law to imprison that other. See also the case of FBN PLC VS ONUKWUGHA (2005) 16 NWLR PT 950 AT 120, where it was held inter alia that where an individual has lodged his complaints to the police and the police thereupon on their own proceeded to carry out an arrest and detention, then the act of imprisonment is that of the police. In BALOGUN VS AMUBIKAHUN (1989) 3 NWLR PT 107 AT 18; NWANGWU VS DURU (2002) 2 NWLR PT 751, AT 265 AND UAC OF NIGERIA PLC VS SOBODU (2007) 6 NWLR PT 1030,the Courts held as unlawful, illegal and unjustifiably the restraint of a person s right and liberty to move about freely and the plaintiff has the burden of proving that the restraint was done without any legal foundation and was actuated by malice. Further, in English cases of SHEPHERD MASIMBA KAMBADZI (PREVIOUSLY REFERRED TO AS SK (ZIMBABWE) (FC)) VS SECRETARY OF STATE FOR THE HOME DEPARTMENT (2011) UKSC AT 23; MURRAY VS MINISTRY OF DEFENCE (1988) 1 WLR AT 692, PER LORD GRIFFITHS; ROBERTS VS CHIEF CONSTABLE OF THE CHESHIRE CONSTABULARY (1999) 1 WLR 662, PER LORD CLARKE, it was held that false imprisonment is a trespass against the person which is actionable without proof of special damages. An award is therefore based on normal compensatory principles which is needed to recognize that the applicant s fundamental rights have been breached. This does not affect the principle that the defendant is only liable to pay substantial damages for the loss and damage which his wrongful act has caused. The amount of compensation to which a person is entitled must be affected by whether he would have suffered the loss and damage had things been done as they should have been done. It is therefore imperative to note the statutory provisions in this regard and Section 28 of the Criminal Procedure Code states that:- A private person may arrest a person:- a) For whose arrest he has a warrant or whom he is Directed to arrest by a Justice of the Peace under 15

16 Section 29 of this Code or by a Justice of Peace or asuperior Police Officer under Section 30 of this Code. b) Who has escaped from his lawful custody. c) Required to appear by a public summon. d) Committing in his presence an offence for which the Police are authorized to arrest without a warrant. While Section 39 (1) and (2) of the Criminal Procedure Code stipulates the duty of the private person after the arrest as follows:- a) A person, other than a Police Officer or Justice of the peace, making an arrest without a warrant or an order of a Justice of the Peace shall without unnecessary delay take the person arrested to the nearest Police Station or hand him over to the Police Officer. b) If the arrested person appears to be one whom a Police Officer is authorized to arrest, the Police Officer shall re-arrest him, otherwise, the arrested person shall be at once released. From the above citations, it is clear that a private person can arrest a person committing an offence in his presence for which the Police are authorized to arrest without a warrant. The next question that needs to be answered when this arrest is effected by the private personis,what is expected of him by Section 39 (1) of the Criminal Procedure Code. It is clearly stated that he is to without unnecessary delay take the person arrested to the nearest Police Station or hand him over to a Police Officer. It is the submission of the Plaintiff that it was the staff of the Defendant and security guards that arrested and detained him for over eight hours, while the Defendant denied the allegations and instead submitted that it was a Police Officer who detained the Plaintiff. The law is trite that the burden of proof in a suit lies on he who asserts and on that person who would fail if no evidence at all were given on either side. Reliance is placed on the case of AKANDE VS. ADISA & ANOR (2012) LPELR 7807 and SECTIONS 135 (1), 136 AND 137 (10 OF THE EVIDENCE ACT CAP E 14 LFN In EMMAN N. OKAFOR VS. JOHN NWOYE EZENWA (2002) 13 NWLR (PART 784) PAGE 334 PARAGRAPHS E F. PER 16

17 UWAIFOit was held that he who asserts the positive must prove it by virtue of the requirements of Section 135 of the Evidence Act. It is the duty of the Defendant to prove to the Court that they indeed handed over the Plaintiff to a Police Officer by calling the Police Officer who the Plaintiff was handed over to. In the case of OKEZIE VS. CHAIRMAN, MEDICAL & DENTAL PRACTITIONER DISCIPLINARY TRIBUNAL (2010) LPELR 4717 PER GALINJEit was held that it is the duty of the Prosecution to call all vital witnesses, whose evidence will help the tribunal reach a just decision. Although, the Prosecution needs not call a host of witnesses on the same point, where there is a vital point in issue and there is a witness whose evidence will settle it one way or the other that witness ought to be called. The Defendant failed to call the vital witness who is said to be the policeman the plaintiff was handed over to especially since the PW2 had corroborated the story of the Plaintiff that he did not see any Policeman or policemen at the bank when he got there at 6 p.m. on that fateful day. This piece of evidence serves as corroborative evidence on the claim by the plaintiff that he was detained by the security guards. On the question of corroborative evidence reference is made to the case ofiko V. STATE (2001) 14 NWLR (PT. 732) PG PARAS H-C. The defence was obliged to call either the policeman or another member of staff on this contention. The defence had also put out the fact that he was not taken to a police station because he had pleaded with them to resolve the matter. This raises the presumption that there was no policeman on hand because if there had been, their argument would have been strongly put forward that they had already discharged their duty to hand him over to a policeman. It was also in evidence the names of the parties who visited the site in Gwarimpa and as stated by the two parties, there was no mention of any accompanying policeman, which is very strange indeed if he had indeed been handed over to the police at the police post in the premises. It is safe to assume that at that point of handing over, the police were obliged to conduct their own investigations without any help from the parties. There was also no evidence on record that the policemen were in mufti and so the claim that he was handed over to the police on post is strange 17

18 moreso in light of the fact that by the time counsel Mr. Ikechukwu Ezechukwu visited the bank to guarantee his continued attendance at the bank pending the resolution of the case, it would have been expected that he visited the police station or police post as the case may be and not the bank. It is reasonable to expect that by this time, if he had been duly handed over to the police, any visit by Mr. Dan and Ikechukwu should have been to the police station or police post on the premises and not in the banking hall. The Plaintiff stated thathe was held up for over eight hours which was corroborated by P.W.2 when he stated that he called the Plaintiff around six and he was still in the bank. While D.W.1 stated that the Plaintiff left the bank on time but did not state the precise time he left. All they stated was that he left when their customer came to guarantee his future attendance at the bank. The defendant was expected to go further to state what time the plaintiff left the premises either by calling someone to buttress his claims especially since this assertion was in issue. The argument raised by the defence that the defendant had not intended to confine the plaintiff in anyway, as the relationship of the parties arose when the plaintiff voluntarily walked into the defendant s banking hall and tendered the cheque is neither here nor there to the fact that he was detained upon the presentation of the cheque to them. Since the defendant alleged by positively asserting that the crime of fraud and obtaining by false pretence was committed, they had the duty to establish these offences, or at best tender the police report to show that they had complied with the requirement of the law to take the plaintiff to the police station at the earliest opportunity. There was also the fact that the defendants had urged the Court to note amongst other things that even if there was a right of complaint, the plaintiff waived it when he pleaded not to be taken to a police station but rather to be allowed to sort out the situation and this leads to the question of why he should say this to them if the police had been called immediately as claimed. It is also the contention of the Defendant that the signature on the cheque is different from that on Exhibits D, E and F. It is 18

19 unreasonable to expect the plaintiff to know that a company seal need to be affixed with the signature and it is equally unreasonable to expect him to know that the signature as indicated on the cheque was not the proper signature. It is on record, the uncontroverted evidence that the plaintiff when interrogated by the defendants had produced the agreement he had with Mr. Igweonu, which should have had the same signature on it as the cheque, and would have proved his innocent belief that he was cashing a cheque duly issued. If the Defendant suspected a crime, they were expected to have taken the Plaintiff to the Police Station, reported the matter to Economic and Financial Crimes Commission for further investigations which they failed to do. The issue before this Court is whether the Defendant s action without the handing over to the Police is unlawful and if it amounts to false imprisonment. In the case of OTERI VS. OKORODUDU & ANOR (1970) ALL N.L.R. 199 PER LEWIS J.S.C. held that 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 VS. 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 the light of the facts known to the Defendant at the time not on subsequent facts that may come to light as it shown by WRIGHT VS. SHARP (1974) L.T. 308where it was held that the responsibility is ministerial and not judicial when he said It has to be remembered that Police Officers in determining whether or not to arrest, are not finally to decide the guilt or innocence of the person arrested, their functions are not judicial but ministerial. As to the requirement that the arrestor should act honestly, as well as reasonably, it means no more than that, he himself at the time believed that there was reasonable and probable cause, and where the test is satisfied, the onus lies on the person who has been arrested to establish that his arrestor did not in fact believe what ex hypothesis he would have believed. Reliance is placed also on the case ofherniman VS. SMITH (1938) A. C. 305, 316. The Defendant submitted that it believed that Mr. Igweonu s cheque was missing, there was cloning of the cheque, forgery, fraud and that the offence of obtaining by false pretence was about to be 19

20 committed especially since they called Mr. Igweonu who informed them that he did not issue such cheque. The Plaintiff on the other hand contended that Mr. Igweonu and the Defendant connived together to disgrace him, especially since Mr. Igweonu did not report of any missing or stolen cheque.if truly the Defendant had spoken on the phone to Mr. Igweonu when the cheque was presented and he had denied knowing the Plaintiff or even issuingthe cheque to him, the issue becomes to what end was the subsequent visit to Gwarimpa to achieve? Since the Defendant submitted that when the cheque was presented by the Plaintiff, they immediately called Mr. Igweonu, who confirmed that he did not issue the cheque and in fact did not know the Plaintiff. The question must necessarily be asked why did the Defendant take the Plaintiff to Gwarimpa. What were they planning to achieveby their visit to Gwarimpa? Where they planning to ask Mr. Igweonu the same questions which they already asked him on the phone after getting such confirmation? Was there foul play between the defendant and their customer as contended by the plaintiff? Should they not have relied on the mandate card to know his address in the first place and why did they have to rely on the person they suspected of committing a crime to identify the location of Mr. Igweonu? All these activities smacks of the fact that they had not been in any contact with the said Igweonu. Moreover, the fact that the account was not adequately funded was not enough, and even the placing of the call to Mr. Igweonu who claimed not to know the plaintiff is still not sufficient to detain the plaintiff for about eight (8) hours without any food or water. The defendants ought to have simply dishonoured the cheque, or make enquiries with the account holder, their client within a reasonable time and even at the worst case, handed him over to the nearest police station. The defendants stated that the account subsequently became dormant with them not seeing the said Mr. Igweonu again. The fact that the plaintiff was detained for a long period of time without food and water and the fact that he was only released after an undertaking was extracted from a customer of their bank portrays the action taken by the defendant as an over-kill and was totally unfounded and certainly deprived the plaintiff of his 20

21 fundamental right to freedom of movement and human dignity. They also failed to prove they handed over the plaintiff to the police at the earliest opportunity and therefore the action of the defendant amounts to false imprisonment and the Court so holds. On Issue Two, which deals with the return of the dud cheque, Learned Counsel to the Defendant submitted that the cheque in question belongs to Igweonu Associates Nigeria Ltd and not the Plaintiff, therefore it is only the rightful owner of the cheque leaf who can ask for the return of the cheque and he urged the Court to discountenance the prayer as the Exhibit H, had a signature which was a total departure from the authorized signature, the company seal as required by the mandate was not on it and there was insufficient funds in the account. While the Plaintiff s Counsel on this point submitted that detinue is a form of action which lies for the recovery in specie of personal chattels from one who acquires possession of them lawfully but retains it without right. It is his further contention that an action in detinue lies where the Plaintiff has an immediate right to the possession of the goods or chattels and the Defendant who is in possession of those goods fails to deliver them up after the Plaintiff has made a proper demand for their return. He cited the cases of BENIN RUBBER PRODUCER CO-OPERATIVE MARKETING UNION LTD VS. OJO (1997) 9 NWLR (PART 521) 388 and SPDC VS. OKONEDO (2007) VOL 52 WRN 151. Learned Counsel denied the contention made by the Defendant that the cheque belongs to the Plaintiff and not Mr. Igweonu since it is his name that was on the cheque. It is his argument that the cheque is a proof of the money which the Defendant s customer owes the Plaintiff and as such it acts as a lien over the money. By the Defendant holding the cheque, it is impossible for the Plaintiff to collect his money from Mr. Igweonu or even sue for issuing a dud cheque. Assuming that the cheque in question was honoured, the money value would not have devolved back to the issuer but will have 21

22 remained with the Plaintiff. He relied on Paragraphs 21, 23 and 24 of the Plaintiff Statement of Claim. Learned Counsel submitted that the Defendant has no reason for keeping the cheque as Mr. Igweonu never made any report of a stolen cheque book or missing cheque leaf. It is the Learned Counsel submission that the Defendant did not plead the fact that the Plaintiff pleaded with them not to be taken to a Police Station and he urged the Court to discountenance that submission as evidence not pleaded goes to no issue. He relied on the cases of OLAGUNJU VS. ADESOYE (2009) 9 NWLR PART PAGE 231 (PART 255 PARAGRAPHS G H) and INEC VS. ACTION CONGRESS (2009) NWLR PART PAGE 575 PAGE 634 PARAGRAPH C and urged the Court to hold that he is entitled to the return or value of his cheque being proof of the money owed him by Mr. Igweonu. Detinue is an old Common Law form of action to recover possession of personal property wrongfully detained. It is trite law that in an action for detinue, the Plaintiff must first establish that he is the owner of the thing, the recovery of which he is seeking as the claim can succeed only if the Plaintiff has established ownership in the subject matter. The plaintiff must have a right to immediate possession, although he never had actual possession. The gist of the action is the wrongful detainer and not the original taking, and the possession must have been acquired by lawful means. See the cases of SODIMU VS. NPA (1975) 4 S.C. and C.D.C. NIG. LTD VS. SCOA NIG LTD S.C The liability is tort of detinue is the wrongful detention of the Plaintiff s chattel. The action is against the Defendant who received the chattel from the Plaintiff or otherwise against the Defendant who withholds or withheld the Plaintiff s chattel after the Plaintiff had demanded its return. Reliance is placed on the case of U.B.N. LTD VS. OSEZUAH (1997) NWLR (485) 28 P 42 PARAGRAPH A. Does a cheque fall into a chattel? A chattel in law is a term used broadly to denote property. It is defined generally as including all kinds of property except real estate. It is more comprehensive than 22

23 goods since it includes animate as well as inanimate objects. In addition, a chattel may be tangible or intangible. The Plaintiff submitted that the Defendant should be ordered to return back the cheque to him as the cheque is the value for proof of the money owed him and he also told the Court that whenever he requested for his money from Mr. Igweonu, Mr. Igweonu always told him to bring back the cheque if he has not withdrawn the money as failure to do that means he has cashed the cheque. The Defendant on the other hand submitted that the reason why the cheque was not released to the Plaintiff is because the cheque belongs to Igweonu Associates Nigeria Ltd and not the Plaintiff and also because the signature on the cheque is different from the one on the mandate card, the seal of the company is not on the cheque and there is insufficient funds in the account. It is worthy to note that a cheque which has an irregular signature, no company seal and no funds in the account cannot be cashed or used in another branch. Furthermore, the cheque can only be presented and cashed within six months on the date it was issued, and so the Plaintiff cannot present it before another branch for value. The cheque therefore constitutes real evidence which can be used by the plaintiff to show that a certain action was taken by Mr. Igweonu in any claim he may seek to make against him to a law enforcement agency or a Court of law as the case may be. It now constitutes simply a document, a vital document to be used by the plaintiff in any claim in tort against the issuer. It is the usual practice of banks to return the cheque back to the presenter with an annotation once there are insufficient funds and so the presumption must be that since the cheque has no value on the face of it and is therefore not binding on the bank to honour, then it is not binding on them to keep the cheque. Also Mr. Igweonu never told the Defendant that his cheque book or cheque leaf was missing, it would be in the interest of justice for the Defendant to return back the cheque to the Plaintiff so he can give it back to Mr. Igweonu and or use it to prosecute Mr. Igweonu as he claims. Therefore this claim succeeds accordingly. 23

24 On Issue Three, the Court will argue the Plaintiff s issue two and issue four together and that of the Defendant s issue three. The Defendant submitted that the primary aim of an award of damages is to compensate a Plaintiff for harm done to him, but the Plaintiff has failed to establish any wrong done to him. Learned Counsel differentiated aggravated damages from general damages. He submitted that aggravated damages are compensatory in nature and may only be awarded for that purpose. He relied on the cases of DAMISA VS. U.B.A PLC (2005) 9 NWLR (PART 931) 540 PARAGRAPHA; ILUOMO & ORS VS. CHIEKWE (1991) 2 NWLR (PART 173) 325 and NATIONAL MARITIME AUTHORITY VS. MANAGEMENT ASSOCIATES INC & 1 OR (2010) 4 NWLR (PART 1185) 626 PARAGRAPHS G B. It is his submission that the Plaintiff did not deny that the signature on Exhibit H is different from the mandate card. He further stated that the apprehension of the Plaintiff and the alerting of Policemen was done pursuant to the Defendant s duty as a private person to assist the state in arresting an officer, and the Plaintiff would have been handed over to the Police but for his plea to be allowed to sort out the problem. He urged the Court to hold that the Plaintiff has failed to cogently prove such harm was meted on him. He finally submitted on this leg of issue that even if the Plaintiff is to be entitled to any form of aggravated damages, the sum of N20 Million is certainly not a quantum of damages within the contemplation of the class of aggravated damages. If the Court holds such an amount as aggravated damages, it has resorted to a punitive measure against the Defendant for being law abiding. On general damages, Learned Counsel submitted that general damages are presumed to be direct natural or probable consequence of the wrong complained of.the instructive aspect is that it must relate to a wrong. He argued that the Plaintiff could not sufficiently prove the committal of a wrong against him. 24