JUDGEMENT [DELIVERED BY HIS LORDSHIP HON. JUSTICE (DR.) M. N. ONIYANGI (MNIM)]

Transcription

1 IN THE HIGH COURT OF JUSTICE OF THE FEDERAL CAPTIAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT MAITAMA ON FRIDAY, THE 6 TH DAY OF DECEMBER, 2013 SUIT NO: FCT/HC/CV/5126/2011 BETWEEN: 1. ABUBAKAR A. KAROFI 2. BAKO JAMES ADAMU....PLAINTIFFS 3. SAKA HASSAN AND 1. ZENITH BANK PLC....DEFENDANTS 2. MR. BRIGHT OKONZUA JUDGEMENT [DELIVERED BY HIS LORDSHIP HON. JUSTICE (DR.) M. N. ONIYANGI (MNIM)] The Plaintiffs vide a writ of summons filed on the 24 th day of June, 2011 are claiming against the Defendants as follows: (1) The sum of N5,000, [Five Million Naira Only] as damages for trespass to person and assault resulting to injury to feelings, indignity, disgrace, humiliation and mental suffering occasioned by the assault, defamation and maltreatment of Abubakar A. Karofi. (2) The sum of N5,000, [Five Million Naira Only] as damages for trespass to person and assault resulting to injury to feelings, indignity, disgrace humiliation and mental suffering occasioned by the assault, defamation and maltreatment of Bako James Adamu. (3) The sum of N5,000, [Five Million Naira Only] as damages for trespass to person and assault resulting to injury to feelings, indignity, disgrace, humiliation and mental suffering occasioned by the assault, defamation and maltreatment of Saka Hassan. See paragraph 14 of the statement of claim. Consequent upon being served with the writ of summons, the Defendants jointly filed a statement of defence along with a notice of preliminary objection. The objection was taken and vide the ruling of the Court dated 17 th day of April, 2012, 1

2 the suit was struck out. Consequent upon the application by the Plaintiff, same was relisted. The matter proceeded to trial. The Plaintiffs called three witnesses comprising of the 2 nd and 3 rd Plaintiffs and one Bilikisu Uche, the Director Litigation in the High Court of the Federal Capital Territory, Abuja. Let me quickly put on record that the 1 st Plaintiff did not give evidence. Therefore the written witness statement of the 1 st Plaintiff, Abubakar A. Karofi dated 24 th day of June, 2011 is deemed abandoned and same be and is hereby struck out. The Defendant called one witness. The facts leading to this suit briefly is that on the 15 th day of April, 2011, the 1 st and 2 nd Defendants who are staff of the Litigation Department of the High Court of the Federal Capital Territory Abuja in company of the 3 rd Plaintiff who is a Litigation clerk in the employment of the law firm of Demola Bakre went to the premises of the 1 st Defendant [ZENITH BANK PLC] to enforce a Garnishee Order in Suit No: FCT/HC/CV/2086/08 between WILBATRUSS NIGERIA LTD V. FCDA. The said execution was resisted as alleged and consequent upon the instruction of the 2 nd Defendant, the security of the bank were said to have rough handled, beat, assaulted and bundled out the Plaintiffs out of the banking hall. This led to the intervention of the Director of Litigation who is PW1 in this suit; who went to the bank with law enforcement agents to ensure the execution of the said order. It is the contention of the Defendants that though the Plaintiffs were physically present in the said bank on the day in issue but their mission was not made known to the 2 nd Defendant and hence they were rebuffed to safeguard the integrity of sensitive data of the 1 st Defendant. The Defendants alleged that they discovered that bundles of notes totaling N300, and several GSM handsets were reported missing from the counter of the 2 nd Defendant and customers. They denied the allegation that the Defendants instructed their security officers to beat up the Plaintiffs or anybody at all and that nobody on that day was rough handled, beat up or bundled out of the bank like common criminals on the order of the 2 nd Defendant. To buttress their case, the Plaintiffs put in two documents as exhibits. They are: 2

3 (1) Judgement delivered by Justice Ogakwu J. marked Exhibit P1. (2) Certified Copy of the Daily Trust Newspaper publication dated 26 th July, 2011 as Exhibit P2. At the close of all testimonies, respective Counsel filed and adopted their final written address. I have carefully read all the processes filed in this case and the testimonies of the witnesses and the decided cases relied upon by the respective Counsel. I have also compared the respective sole issues formulated by the respective Counsel. In my view they are in nature designed to achieve the same objective purpose. Hence I would adopt the sole issue formulated by the Plaintiffs for the determination of this suit. It goes thus: Whether the Plaintiffs have established the tortuous act against the Defendants thereby entitling them to judgement on their heads of claim. Looking at the claim of the Plaintiffs it can be put into the following compartments. They are tort of trespass to person, defamation, assault and vicarious liability. As I said before, the case of the Plaintiffs is that while they were in the premises of the Defendant to levy execution of judgement and by the order of the 2 nd Defendant who called in the officers of the 1 st Defendant s who beat, assaulted and bundled them out of the 1 st Defendant s Banking Hall. The Defendants denied this and said nobody on that day was rough handled, beaten up or bundled out. In order for the Plaintiffs to succeed they must establish as I said before the ingredients of trespass to person, assault and defamation before the Court would determine whether or not they are entitled to damages. Under Section 136 of the Evidence Act 2011, the burden of proof is put on the person who asserts. That section provides: Section 136: (1) The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other. (2) In considering the amount of evidence necessary to shift the burden of proof, regard shall be had by the Court to the opportunity of knowledge 3

4 with respect to the fact to be proved which may be possessed by the parties respectively. In the case of TEXACO OVERSEAS [NIG] PET CO. UNLIMITED V. RANGK LTD [2009] ALL FWLR PT.494. P.1520 AT It was held: Burden of proof in civil cases rests upon the party whether Plaintiff or Defendant who substantially asserts the affirmative of the issue. See also the case of: MOZIE V. MBA MALU [2006] 27 NSCQR P.425 AT 474 where it was held: The law is that it is a Plaintiff whose case must fail if evidence is not called, that must lead evidence in proof of his case. The situation only changes if there are admissions made by a Defendant on the pleadings. Bearing these in mind, I would proceed to examine the sub-heads constituting the claim of the Plaintiff: (1) Trespass: Trespass to person is a wrong committed against the personal security or personal liberty of one man by another. There are three varieties of trespass to the person, namely assault, battery and wrongful or false imprisonment. The act complained of must be either intentional or negligent. The onus of proof lies on the claimant, who must plead either that the act was intentional or that the defendant was negligent, stating the facts alleged to constitute the negligence. The act must be done against the will of the person who sues for the wrong. See Words and Phrases Legally Defined Vol. 2 (L-Z) LEXIS BUTTERSWORTH 4 TH EDITION. P In the case of OKONKWO V. OGBOGU [1995] 5 NWLR PT.449 P.420. The Supreme Court held thus: Any trespass to the person, however slight, gives a right of action to recover at any rate nominal damages. Even where there has been no physical injury, substantial damages may be awarded for the injury to the man s dignity or for discomfort or inconvenience. Where liberty has been interfered with, damages are given to vindicate the plaintiff s rights even 4

5 though he has not suffered any pecuniary damage. It is also not necessary for the plaintiff to give evidence of damage to establish his cause of action or to claim any specific amount of damages. Assault can be a tort or a criminal act. It is an intentional offer of force or violence to the person of another. There is an assault if there is menace of violence, with a present ability to commit it. The menace must be either accompanied by an intention to commit the violence or must raise an actual fear of violence in the mind of the person threatened. It is an assault for one person within striking distance unlawfully to advance to another in a threatening attitude with the fist clenched and with the intention of striking him immediately; or to point or brandish a weapon at another with the intention of using it ; or to point a firearm at another with a threat of shooting; or to ride after another in a threatening manner so as to compel him to run for shelter to avoid being beaten. Battery is an act of the defendant which directly and either intentionally or negligently causes some physical contact with the person of the plaintiff without the plaintiff s consent. In section 264 of the Penal Code, Assault is defined as follows: whoever makes a gesture or a preparation intending or knowing it to be likely that the gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person is said to commit an assault. In the case of FBN V ONWUKUGHA (2005) 16 NWLR PART 950 P. 120; It was held: The tort of assault is defined as a tort, or acts of the defendant, which puts the victim in fear of reasonable force. From the evidence presented in the court below by the plaintiff that fear occurred when the plaintiff was ordered out of the cab by the police at gunpoint, thereafter the plaintiff was paraded on the street to the jeers and ridicule of people in the neighbourhood. See also the case of NDIBE & ORS. V. NDIBE (2008) LPELR-4178 Per ARIWOOLA, J.C.A as he then was. 5

6 The argument of the Defendants in this case is that the Plaintiffs have woefully failed to state what they have collectively or individually lost as a result of the alleged act of trespass and assault by the Defendants. They contended that the Plaintiffs both in their claim, statement on Oath and oral testimonies while under cross examination completely faield to disclose or present to the Court proof of particulars to support their alleged injury, damage or loss suffered. A careful reading of paragraphs 10, 11 and 12 of the claim and paragraphs 4, 5, 6, 7 and 8 of the reply brings to lime light in my humble view, facts of the alleged act of trespass to person. Paragraph 10 reads: The officials of the 1 st Defendant particularly the 2 nd Defendant requested their security officers to beat up and throw out the Plaintiffs. Paragraph 11: Paragraph 12: The Plaintiffs aver that they were rough handled, beaten up and bundled out of the bank like common criminals by the officials of the 1 st Defendant...after being thrown out, they were rough handled by the bank s private security officers... In the reply of the Plaintiffs to the defence by the Defendants they said: a. Contrary to the assertion of the Defendants in the Statement of Defence, the Director of Civil Litigation, FCT High court was summoned by the 1 st and 2 nd Plaintiffs upon the beating and violent ejection of the 1 st and 2 nd Plaintiffs and the obstruction of their official duty by the Defendants. b. The Director of litigation promptly arrived and it was only her direct intervention and firm insistence on the completion of the execution process that prevented further beating, harassment and ejection of the plaintiffs. 6

7 In paragraphs C, D and E it was revealed that the condition of the 2 nd Plaintiff in tattered clothes that prompted the Director (PW1) to insist on the production of the 2 nd Defendant for statement at the Police Station being the fellow who ordered the act complained of. It is because of this act complained of that warranted the issuance of Press Notice Exhibit P2 in the Daily Trust Newspaper of Tuesday July 26, A careful reading of the testimony of PW1, the Director Civil Litigation further strengthens this. She said: I had a call from Bako (2 nd Plaintiff) one of the staff of the court who went for enforcement that they were being beaten up by security guards at Zzenith Bank Maitama and that they have been pushed out by the guards I met Mr Boko Adamu James and one other man whom I cannot identify. I saw Bako had his clothes torn, his body bruised. He was wearing only singlet It is the testimony of PW2 that they were slapped by the Security who were acting on the instruction of Mr. Bright who ordered them to beat us. In his own facts PW3 said: we were thoroughly beaten. Six hefty security officers attacked us. They were instructed by the 2 nd Defendant. The statement of the 2 nd Defendant is that he believed that the Plaintiffs were armed robbers but did not ask anybody to beat them. To me the evidence of the Plaintiff put together is strong coherent and straight to the point on their complaint that they were beaten, harassed, assaulted and thrown out of the banking hall. Their testimony is strengthened by that of PW1 who said she met the Plaintiffs outside the banking hall. If this is compared with the evidence of DW1 which in essence suggests that at one time or the other the Plaintiffs were in the banking hall. There is also that testimony of his that the system of the Bank was disrupted and the money counting machine was disconnected by the Plaintiffs. That put paid to the fact that the Plaintiffs were in the banking hall but were removed from the hall to a place outside. The Court can infer from these pieces of evidence that the Plaintiffs were forcefully removed from the banking hall. 7

8 Another thing that suggests the alleged act is the evidence that the staff of the Bank suspected that the Plaintiffs are Armed Robbers which they are not. Also the apology and the act of giving of the sum of N50, by the Bank for the Plaintiffs to treat themselves tend to suggest that the act of trespass to the persons of the Plaintiffs and assault took place and was caused by the Defendants. Based on the foregoing, I have no hesitation in my mind in coming to the conclusion that the act of trespass and assault was committed on the persons of the Plaintiffs by the security of the 1 st Defendant and while acting under the instruction of the 2 nd Defendant I accordingly so hold. What is now left is to determine whether or not the Defendants are vicariously liable. Vicarious liability means, liability that a supervisory party [such as an employer] bears for the actionable conduct of a subordinate or associate [such as an employee] because of the relationship between the two parties. It is the act of holding an employer or principal liable for the employee s or agent s wrongful acts committed within the scope of the employment or agency based on that doctrine that He who does a thing through another does it himself See the case of TECNO MECH. (NIG.) LTD. V.OGUNBA (2000) 1 NWLR (PT.639)150. In the case of FBN V ONWUKUGHA (2005) 16 NWLR (PART 950 )P. 120 at P.152. It was held as follows: The imposition of liability on one person for the actionable conduct of another based solely on a relationship between the two persons. Indirect or imputed legal responsibility for acts of another for example, the liability of an employer for the act of an employee or a principal for tort or contract of an agent In the case at hand, it is not in dispute that the 2 nd Defendant is an employee of the 1 st Defendant. Also it can not be disputed that the alleged act happened during banking hours and in the premises of the 1 st Defendant, Zenith Bank Maitama, Abuja. By the preponderance of evidence before the Court, I have no doubt in my mind that the 2 nd Defendant ordered the security personnel of the bank to evacuate the Plaintiffs from the banking hall. See also paragraphs 10, 11, 12 and 14 of the statement of claim and the testimony of the witnesses called. The evidence of PW1 also points to this fact. 8

9 Having regard to the foregoing it is my conclusion that both Defendants are liable for the tortuous act meted out to the Plaintiffs by the security of the bank. What is now left is the complaint of defamation. In the case of: THE SKETCH PUBLISHING CO. LTD. AND ANOR. V. ALHAJI AZEEZ A. AJAGBEMOKEFEFI (1989)1 NWLR [PT.100] 678 AT 695; Defamation is defined as: A statement which if published of and concerning a person, is calculated to lower him in the estimation of right thinking men or cause him to be shunned or avoided or to expose him to hatred, contempt, or ridicule or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business. In an action for defamation, the onus is on the Plaintiff to prove that the words complained of conveyed a defamatory meaning to whom they were published See ALAWIYE v. OGUNSANYA [2004] 4 NWLR (Pt.864)486 In the case of ZENITH PLASTIC INDUSTRY LTD V. SAMO TECH. LTD [2007] 16 NWLR [PT.1060] PG 35; Rhodes Vivour JCA as he then was, now Justice of the Supreme Court said thus: "Defamation is either libel or slander. It is libel where the words written are defamatory of the plaintiff/complainant in their natural meaning or by reason of innuendo. It is slander where the words spoken are defamatory of the plaintiff/complainant in their natural meaning or by reason of innuendo." In order for an action in defamation to be sustained; the following must be established: (1) The publication of the offending words. (2) That the words complained of refers to the Plaintiff. (3) That the words are defamatory of the Plaintiff. (4) Publication to 3 rd parties. (5) Falsity or lack of accuracy of the words complained of. (6) That there are no justifiable legal grounds for the publication of the words. See CONCORD PRESS [NIG] LTD V. OLUTOLA [1999] 9 NWLR [PT.620]

10 One of the conditions for registering this type of complaint is that it must be specifically pleaded. The alleged words must be set out. See the case of EJIKEME V. NWOSU [2002] 3 NWLR [PT.754] P A careful perusal of the Plaintiffs claim shows that in none of the paragraphs is any defamatory word specifically pleaded. Where there is failure on the part of the Plaintiff to set out the defamatory words in his pleadings, the need to consider this head of claim as in the instant case would amount to an action in futility or rather setting out on a voyage of discovery. It is not the responsibility of a Court to proceed on a fishing expedition as to the manner in which the Plaintiffs are defamed. On that note, I hold that the Plaintiffs do not only fail to establish their complaint of defamation against the Defendants but also fail to fulfill the condition precedent i.e. pleading the defamatory words or publication. This head of claim fails, is refused and dismissed. Having found the Defendants liable vicariously for the act of trespass to the persons of the Plaintiffs and assault, I answer the sole issue in the affirmative. The Plaintiffs are therefore entitled to damages. In the case of AGBANELO V/ UNION BANK OF NIGERIA PLC [2000] 7 NWLR [PT.666] P.534. Ayoola JSC [as he then was] adopted the definition of damages made by the learned author McGregor on Damages as contained in the 16 th Edition of Therein Damages is defined as pecuniary compensation, obtainable by success in an action for a wrong which is either a tort or a breach of contract, the compensation being in the form of a lump sum awarded at a time unconditionally and generally The purpose of awarding damages is to recompense the victim of an act for the loss, injury or damages suffered by him. Although it is the position of the law that general damages must be pleaded, its award is at the discretion of the Court acting judicially. Further he added: A judge is empowered by the law to award such damages for loss which flows naturally from the act of the defendant. In the case of trespass to the person like an assault, the tort is committed and 10

11 entitles the plaintiff to damages without proof of physical injury; and the court may award substantial damages for injury to man s dignity, discomfort or inconvenience, In OKONKWO V OGBOGU (1996) 5NWLR PART 449 P The Court held as follows: Any trespass to the person, however slight, gives a right of action to recover at any rate nominal damages. Even where there has been no physical injury, substantial damages may be awarded for the injury to the man s dignity or for discomfort or inconvenience. Where liberty has been interfered with, damages are given to vindicate the plaintiff s rights even though he has not suffered any pecuniary damage. It is also not necessary for the plaintiff to give evidence of damages to establish his cause of action or to claim any specific amount of damage. Based on the evidence of PW2 and PW3 and which is materially supported by the evidence of PW1, I hold that the 1 st, 2 nd and 3 rd Plaintiffs are entitled to damages for the acts complained of other than that head of claim for defamation. I therefore find the Defendants vicariously liable for trespass and assault to the persons of the Plaintiffs. I accordingly so hold. To that end, I order that the Defendants should jointly pay to each of the Plaintiffs the sum of N2,000, as damages. Payment to be made within 30 days from today. Signed: Hon. Judge. 6/12/2013. Representation: Mr. O. S. Omotosho for the Plaintiffs. Dr. Soni Ajala with Obinna Ugwu for the Defendants. Plaintiff s Counsel Address: Defendant s Counsel Address: Law Office of Demola Bakre, Deeplaw Associates, 12, Bissau Street, Wuse Zone 6, Geometrix House, Abuja. 23, Waziri Ibrahim Crescent, Gudu District, Abuja. 11