KANO ELECTRICITY DISTRIBUTION COMPANY PLC & ANOR. vs. SINTILMAWA(2022)
LCN/16991(CA)
PRINCIPLE:
“It is trite and in fact good law that a trial Court is duty bound, after receiving evidence from parties and their witnesses, to evaluate impartially such evidence before arriving at its decision, a duty described by Onnoghen, JSC, (later CJN) in Fagbenro v. Arobadi (2006) 7 NWLR (PT. 978) 172 AT 193 as “sacred”. In performing that sacred duty the Court is bound to set out its appraisal and thoughts showing how and why it came to its findings of fact and final determination on the issues. See UBA v. Mustapha (2004) 6 NWLR (PT. 652) 468 AT 469, 472 Para. D. If it fails in that duty an appellate Court will intervene either to re-evaluate the evidence or send the case back for retrial, depending on whether or not the unevaluated evidence bordered on credibility of witnesses. See Anyanwu v. Uzowuaka (2009) ALL FWLR (Pt 499) 411; Mainnage v. Gwama (2004) 12 MJSC 34; Woluchem & Ors. v. Gudi & Ors. (1981) 12 NSCC 214 AT 220-211; Atolagbe v. Shorun (1985) 1 NWLR (PT. 2) 360; CPC v. INEC (2012) ALL FWLR (PT. 617) 605 AT 633 and Anyanwu v. Uzowuaka (2009) ALL FWLR (Pt. 499) 411 AT 426-427. Section 15 of the Court of Appeal Act, 2004 also specifically states that this Court in hearing appeals “shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a Court of first instance and may re-hear the case in whole or in part…”
In Wassah v. Kara (2015) ALL FWLR (PT. 769) 1034 AT 1954, it was said (Rhodes-Vivour, JSC) that: “There are few cases where a retrial order should not be made. If after examining the evidence this Court finds that it is in a position to do justice, this Court should proceed to correct the decision, and, in such circumstances, it would be wrong to order a retrial.”
Having carefully gone through the lower Court’s judgment myself, I am not by any means persuaded that it did any evaluation of the evidence that was adduced before it before accepting respondent’s case and entering judgment for him. All it seems to have done in its 65-page judgment is simply to summarize the evidence of the six witnesses that testified before it, formulate three issues, reproduce the arguments of counsel to parties and then affirm the same arguments of respondent’s counsel and enter judgment in respondent’s favour. That much I have shown respondent also seems to concede when he said at paragraph 4.19 of his brief of argument that:
“My Lords, since the trial Court considered review of evidence though in the address of the respondent alone, (it) serves the purpose of evaluation of evidence on the trial Court as it encompasses both evidence led by the respondent and the appellants.” (Emphasis mine)
Summarization of evidence is not the same as evaluation of evidence. See Mkpinang v. Ndem (2013) 4 NWLR (PT. 1344) 302 AT 315, (2012) LPELR-15536 (SC) AT 22-24 and Anyanwu v. Uzowuaka (2009) ALL FWLR (Pt. 499) 411(SC).
I am therefore of the same opinion with appellants that the justice of this case requires that this Court evaluate the evidence by itself and reach a decision. That exercise, I am again of the opinion, can be effectively carried out by this Court by relying on settled principles of law in drawing necessary inferences from the evidence adduced by parties and the pleadings of parties before the Court. I proceed to do that now.
I start with the evidence adduced by parties as it relates to respondent’s claim for defamation. On that, I must first observe that, contrary to appellants’ thinking, a calm reading of the way respondent framed his claims suggests clearly that his claim for slander is not founded on only the utterance of 2nd appellant to PW1 and Senator Gumel during the phone calls but also in the manner he was said to have been handcuffed and paraded as a common criminal around Ringim town in the course of the police investigation of appellants’ complaint. That much he made clear when after averring to the alleged slanderous utterances of 2nd appellant to the two politicians in the course of their telephone conversation with him, he went on to further aver in paragraphs 26, 28, 35, 36 and 37 of his statement of claim as follows:
- The claimant avers that 2nd defendant denied the claimant’s claim at State CID in paragraphs 24 and 25 and provides (sic) vehicle of the 1st defendant Hilux model and the police used it to convey the claimant, three police officers, supporting staff of the 1st and 2nd defendant Aminu Yusha’u, lineman, Sabutu Alasan, Chief Accountant, Computer Operation Officer and driver to the Katutu Quarters, Galdanci Quarters and Walawa Quarters all in Ringim Town, Ringim Local Government, Jigawa State (areas of responsibility of the claimant when he was working under the 2nd defendant) with the claimant handcuffed where they conducted house-house investigation.
- The claimant further avers that during the above investigation people in the community used to follow them chanting that the claimant is a thief and had stolen 1st defendant’s money. Some of them made video recording with their handset of the claimant handcuffed and shared it with others. Some of them made snapshot of the claimant and upload same on social media (Facebook) with caption that the claimant had stolen the 1st defendant’s money.
- The claimant avers that since the allegation against him by the defendants became public knowledge through house to house investigation by the police which lead video covering and snapping the claimant handcuffed and releasing same on Facebook the claimant had found it difficult to secure job to take care of his family.
- The claimant avers that people from his community and Ringim Town now looked (sic) down at the claimant as thief who stole the 1st defendant’s ₦8,800,000.00 and no longer willing to interact with the claimant or deal with him in any business transaction.
- The claimant avers that his political mentors Sen. Abdullahi Ojo Gumel and Hon. Muhammed Gusau Boyi no longer held (sic) him in the same esteem as before and no longer willing to entrust him anything.
- The claimant avers that he is a politician and planning to contest for councillorship of Sintilmawa ward in future Local Government elections but the above allegations by the defendants destroy my ambition as I now no longer command respect in my ward.
To erase any doubt that his claim for defamation was not based on only the utterances of 2nd appellant in his telephone conversation with his two ‘mentors’ but also in his parade by appellants in handcuffs around the three quarters of Ringim town aforementioned, respondent framed his first declaratory relief thus:
“Whereof the claimant claimed against the defendant as follows: - A declaration that the defendants by their acts and utterances as contained in the statement of claim defamed the character of the claimant.” (Italics mine)
I should pause to point out here that, the fact that slander and even libel can also lie in actions and gestures, and not only by spoken words, is not open to doubt. In Hirat Aderinsola Balogun v. National Bank Nigeria Limited (1978) LPELR-723 (SC) Idigbe, JSC, made that point very clear when he said (at pages 22-23) that: “After all, it is now well known that slander exist as much in spoken words as in gestures or actions. Sometimes a mere act may convey a defamatory imputation if it would be so understood by reason of a convention meaning or by reason of inferences to be drawn from it, whether by the ordinary man, or by some person with special knowledge to whom it was published (see Gatley on Libel and Slander 7th Ed. P. 83 Art. 85). Thus it was held in Jeffries v. Duncombe (1809) 2 Camp. 3, that it was defamatory to place a burning lantern in front of a man’s house during the hours of day (i.e. daytime) thereby intending to make out the house as a bawdy-house, that is, a brothel; and in Cox v. Cox (1814) 3 M & Sat 114 Lord Ellenborough C.J. was of the opinion obiter, that the act of holding up an empty purse before a crowd and gesticulating in the plaintiff’s direction could be considered defamatory, although there were no slanderous words accompanying the action.”
With that, I return to the question, first, of whether respondent proved his cause of action of slander of imputation of crime, etc, by way of appellants’ utterance and actions.
Taking on first the alleged utterance of 2nd appellant to PW1 (Hon. Boyi) that appellant was a thief and stole 2nd respondent’s ₦8,800,000.00, etc, which utterance of stealing is slander actionable per se if proved, it cannot be seriously argued that that allegation was not proved. Why? Because PW1, to whom those words were alleged made by 2nd appellant, was not challenged at all on it by appellants when he entered the witness box to adopt his witness statement on oath where he deposed in paragraph 5 that: “5. I called the 2nd defendant in order to plead to him to re-engage the claimant but the 2nd defendant told me in Hausa language to the effect that “Yaronka barawo ne ya saci kudin KEDCO ₦8,800,000.00 kuma shashaye yake da neman mata kuma babarsa ‘yar gani kashenin PDP ce,” meaning “your boy is thief, he stole KEDCO’s money ₦8,800,000.00 and he is a drunkard, womanizer and his mother is a staunch supporter of PDP.” (See P. 105-106 of the ecords).”
Appellants, particularly 2nd appellant, who denied in their joint statement of defence that 2nd appellant ever uttered such words to PW1 during their telephone conversation, simply chickened out when brought face to face with PW1. The law is settled that in such circumstances the Court has a duty to accept and act on the evidence that is not challenged by the person who had the opportunity to challenge it. See Ogunyade v. Oshunkeye & Anor. (2007) LPELR-2355 (SC); Odulaja v. Haddad (1978) 2 SC 79; Oforlete v. State (2000) FWLR (PT. 12) 2081, (2000) 12 NWLR (PT. 681) 451 (SC).
Juxtapose that on appellants’ admission in paragraph 12 of their amended statement of defence that 2nd appellant actually spoke with PW1 on the telephone on respondent’s re-engagement and one will be left with no other option than to agree with respondent that the discrepancies in the evidence of PW1 as to dates, etc, when the said telephone interview took place that are being harped on by appellants are completely irrelevant and of no effect to the evidence of PW1. This is because the law is again well settled that for contradictions to have effect on the evidence of a witness, they must relate to material issues in the case, as mere inaccuracies by witnesses on immaterial issues like dates events in issue took place have no adverse effect on the evidence of a witness where the happening of the event is clear on the evidence and pleadings before the Court. That much is settled beyond dispute by a long line of cases more particularly State v. Salawu (2011) 18 NWLR (PT. 1279) 883 AT 913, 916-918 (SC); Mamuda v. State (2019) 5 NWLR (PT. 1664) 128 AT 141 (SC); Egesimba v. Onuzuruike(2002) LPELR-1043 P. 21-22 (SC); Nwokoro v. Onuma (1999) 9 SCNJ 63 AT 75 -76 (SC).
As regards the other limb of the same slander founded on the actions of the appellants as earlier highlighted, the sting of the alleged slander there seems to lie in the handcuffs respondent claims he was made to wear during the house to house investigation, which he said portrayed him to the people in Katutu Galadanci and Walawa Quarters, all in Ringim Town, that he was a thief who had stolen 1st appellant’s money. He made heavy weather of the said handcuffs in both his statement of claim and witness statement, for he also seems to realize that without those handcuffs on his wrists the imputation/inference he was relying on could well be difficult to draw, as any onlooker who is not familiar with the story behind his being in the company of the police and his former employee could also interpret it to mean that the police and his former colleagues were perhaps just only giving him security cover for the purposes of his work. So did he prove this averment that he was actually wearing or made to wear handcuffs during the house to house investigation at Ringim? Certainly not; for Respondent, when quizzed on it under cross-examination, capitulated and admitted that:
“Yes, I was handcuffed but at Ringim the handcuff was removed.”
Yes, it is true his 3rd witness (PW3), Maduwa Garba, a fellow sacked former colleague of his at 1st appellants, swore both in his witness and cross-examination that he actually saw respondent in handcuffs during the house to house investigation his Galadanci, but it is clear that like respondent, PW2 also exaggerated what he saw, or may not have even seen at all, when he claimed to have seen respondent in handcuffs during the investigation in Ringim town. This becomes even clearer when one again juxtaposes first Respondent’s averment in paragraph 26 of his statement of claim that Galadanci quarters of PW3 is also in Ringim town where he said his handcuffs were removed. Put simply, this limb of Respondent’s claim of slander was not made out by him.
That takes me to his complaint of breach of his right to personal liberty by appellants. Here, appellants’ contention is that they simply made a complaint and it is the police that arrested and detained respondent so they cannot be properly held liable for his arrest and detention. That is even as they admitted that they went the extra mile of providing the Police with their own vehicle for the arrest and investigation of their complaint. They argued, too, that to hold them liable respondent needed to prove that their complaint was false or malicious and or that they actively directed the Police to arrest and detain him. They submitted that the fact that Respondent also admitted that they presented to the Police electricity bills, duplicates, receipt booklets and record books issued by 1st appellant to its customers in Ringim covering the area of his responsibility shows that they substantiated their complaint so it cannot be described as frivolous and they cannot be held responsible for any action taken on it by the police. They argued, too, that it was Respondent’s duty to call the Police to testify given his pleading that the police confirmed to him that their complaint was false; that his failure to call the Police meant that the falsity of their complaint was not proved. They maintain that the evidence before the trial Court showed that they withdrew their complaint upon entreaties from Respondent and one Senator Ubale Shittu and we should so hold especially as Respondent also admitted that the said Senator Shittu actually volunteered on his behalf.
First, the true position of the law in this area was stated in Okafor v. Abumofuani (2016) 12 NWLR (PT 1525) 117, (Sanusi JSC) as follows at P.140: “It is trite law that where a report is made against a person specifically mentioned as a suspect or accused and the report is later found to be false, malicious, ill-motivated or unfounded, the person so reported and arrested and detained is entitled to damages to be paid to him by the person who made the false report since he is the person who set the law in motion against the victim falsely. The victim also needs not join the police as party as he can sue in his personal capacity as done by the respondent in the present case. See Okonkwo v. Ogbogu (supra).”
Okoro, JSC, in the same case clarified the issue further and drew a fine distinction between Okafor v. Abumofuani and Isheno v. Julius Berger Nig. Plc (2008) 6 NWLR (Pt. 1084) 582 relied on by appellants where arrest and detention is made by the police upon a genuine complaint made to it by a person, in which case the person making such complaint is not liable, when His Lordship said thus in his concurring opinion: “It is trite that where a person makes a genuine complaint against another to the Police and the latter is arrested, detained and prosecuted by the Police, he cannot be said to have put the law in motion against him. See Gbajor V. Ogunburegui (1961) 1 All NLR (Pt. 1) 853; Isheno V. Julius Berger Nig. Plc. (2008) 6 NWLR (Pt. 1084) 582. However, where a report is made to the Police and the suspect is specifically mentioned, and the report is found to be false, malicious, ill-motivated and tissues of lies, in a claim for damages, the victim of the report shall be entitled to damages. In such a suit, the Police are not a necessary party because part of their duties is to receive complaint and act on it accordingly.” (Emphasis all mine)
As to who bears the burden of proof of justification for the arrest and detention in that situation, I once again refer to Clerk and Lindsell on Torts, 16th Ed, at Article 17-39 where it is stated thus:
“Whereas in an action for malicious prosecution the plaintiff must establish absence of reasonable cause, in an action for false imprisonment the burden lies on the defendant to justify the arrest.” (Italics mine)
See also Fajemirokun v. C.B. (C.L.) (Nig.) Ltd. (2002) 10 NWLR (PT. 774) 95 AT 111; Obinna Obiegue v. AGF (supra) at P. 216; Jim-Jaja v. COP (2011) 2 NWLR (PT. 1231) 375 AT 393 and 398 (CA); Ubani v. Director, SSS & Another (1999) 11 NWLR (PT. 625) 129 AT 143.
So clearly the burden of proof lay on appellants as defendants to show that the complaint they made to the police against Respondent, which complaint resulted in his arrest and detention but was later withdrawn by them even after investigation had commenced, was not ill-motivated or unfounded nor frivolous. Did they discharge that burden? Again I have no difficulty holding that they did not. If anything, the fact that they did not allow their complaint of stealing of their over ₦8m to run its full course with the police but chose to withdraw it even after investigation had commenced raises the presumption that something was very wrong with the complaint. That presumption is also supported by Section 167 of the Evidence Act, 2011 mandating the Court to presume the existence of any fact which it deems likely to have happened, regarding being had to the common course of natural events, human conduct and public and private business in their relationship to the facts of the particular case. It was therefore their duty to show that there was indeed some substance in their complaint and it was not by any means ill-motivated. And they do not do that by merely asserting, as they did, that they produced some documents to the police to substantiate the complaint, or that Respondent cried and begged them for forgiveness at the police station and even one Senator Ubale Shittu also intervened on his behalf hence they withdrew their complaint. Since those allegations were denied by respondent in his reply with even a further assertion that even when Senator Shittu tried to intervene in the matter appellants rejected the offer, it was appellants’ duty to call Senator Shittu and even the policemen before whom they claim respondent begged for forgiveness and withdrawal of the complaint to testify to those allegations. Having omitted to do that, the least they could have done next in that direction was to tender at the trial Court their said electricity bills, receipts, duplicates and booklets to show that those documents somehow support their complaint so there was reason for the complaint.
Those are the only reasonable ways to erase the impression that could be created in the mind of the Court and any impartial onlooker that they withdrew their complaints because they may have come to the realization, especially after investigation, that respondent did not actually steal or divert their funds as they initially thought so their complaint was frivolous as he always maintained and the sooner they terminated it by withdrawing it the better.
That necessarily activates the law as set out in Okafor v. Abumofuani (supra) that they, appellants, are the ones who set the law in motion against Respondent with their said ill-founded withdrawn complaint to the police for which they even went the extra mile to zealously provide the police with their own vehicle to investigate, even as there is nothing on the records to suggest that the police did not have its own vehicle to carry out their investigation. In summary, I hold that Respondent proved that appellants were responsible for his arrest and five-day detention and so liable for breach of his right to personal liberty.” Per UGO, JCA.