Division: SUPREME COURT
Date: 28 JUNE 1965
Before: MILLS-ODOI, APALOO AND SIRIBOE JJSC
JUDGMENT OF MILLS-ODOI JSC
This is an appeal from the judgment of Bannerman J. delivered on 16 December 1964 in the High Court, Tamale, by which he dismissed the plaintiff’s claim against the defendants for damages for defamation and false imprisonment. I propose to state generally, without going into the details of the evidence, the facts of this case, and then to take in detail the views expressed by the learned trial judge and see whether there is evidence on which he could properly come to the conclusion he did.
The plaintiff, Sampson Adejumo, is a Nigerian petty trader carrying on business at Nalerigu in Northern Ghana. On 14 October 1963, he travelled to Walewale where he bought some goods and boarded a vehicle bound for Nalerigu. On that vehicle were other passengers including Jueil Isola and the
co-defendant, who was the driver’s mate. At about 10 p.m. the driver of the vehicle stopped at the outskirts of Nalerigu to allow some of the passengers to alight and off-load their luggage. The plaintiff alighted, and as he pulled out from his pocket a wallet to take from it a cigarette, certain papers dropped
from the wallet to the ground and as soon as he picked them up, the co-efendant came up to him and accused him of having picked up also a letter which he, the co-defendant, had dropped from his pocket. The plaintiff readily denied the accusation and, in the presence of Jueil Isola, he showed the co-defendant all the papers he had picked up from the floor. According to the plaintiff, the co-defendant examined the papers and became satisfied that they did not include the letter he was looking for. The plaintiff thereafter
collected his luggage and left for his house.
On or about 18 October 1963 Jueil Isola went to the plaintiff’s store and handed him a letter written in Yoruba by the defendant concerning the plaintiff. It was addressed to Jueil Isola and was delivered to him by the co-defendant. The plaintiff read the letter and returned it to Jueil Isola and he left. Shortly afterwards, the defendant came to the plaintiff’s store with his younger brother and in the presence of the plaintiff’s wife, he requested the plaintiff to return to him the letter which the co-defendant dropped at the
outskirts of Nalerigu. The plaintiff again denied knowledge of the alleged letter.
At about 11 a.m. on the same day, while the plaintiff was still in his store, the co-defendant pointed him out to a policeman, whereupon the plaintiff was arrested and taken to Gambaga Police Station where he was told, for the first time, that his arrest was in pursuance of a charge of theft made against him by the defendants. Not unnaturally, the plaintiff denied the charge; but the defendant who was at the police station when the plaintiff was brought in, on hearing the plaintiff’s denial of the charge, told the police that it was the plaintiff who had stolen the letter. The plaintiff was then detained in a cell till the next morning. On 19 October 1963 which was a market day, the plaintiff was taken by the Gambaga police to his house at Nalerigu and a thorough search lasting for over an hour was conducted; but the letter they were looking for was not found on the premises. The plaintiff was taken back to the police station at Gambaga and was later released on bail; he was, however, ordered to report at the station every morning.
The plaintiff reported at the Gambaga police station continuously for eight days and was finally released. Whereupon he brought this action against the defendant and the co-defendant for damages for the sum of £G1,000, alleging that the defendant alone had falsely and maliciously written and published a letter containing defamatory matter of and concerning him; and that both the defendant and the, co-defendant had maliciously caused his arrest and imprisonment. He contended that the defendant by that defamatory letter meant to impute theft to him, and was understood so to mean by Jueil Isola, the person to whom the letter was published.
The defendant denied that he was the writer of the letter alleged to have been delivered by the co-defendant to Jueil Isola or to any other person. He then contended that the averments in the plaintiff’s statement of claim that, “the plaintiff had stolen a letter and that the plaintiff will be well advised to surrender the letter to the defendant, or words of similar nature,” do not bear the meaning assigned to them in the innuendo which the plaintiff had pleaded in paragraph (3)of the statement of claim, namely, “that the plaintiff is a thief.”
He also denied that he had preferred a charge against the plaintiff to the Gambaga police and stated that, “if the plaintiff was detained by the police, that detention was not the act of the defendant.”
The co-defendant also stated that neither he by himself nor together with the defendant had preferred a charge of stealing against the plaintiff as alleged. He denied that any arrest or detention of the plaintiff was the direct result of his act. He contended that, “even if there was any report at all to the Ghana Police, Gambaga, which is not even admitted, the same was made on a privileged occasion and without malice.”
The learned trial judge heard evidence from both parties and gave judgment for the defendant and co-defendant after he had dismissed the plaintiff’s claim on the following grounds:
(1) that the plaintiff failed to plead in the statement of claim the alleged defamatory words;
(2) that the arrest and detention were made by the Gambaga police on the information given by the two defendants who felt there was reasonable suspicion that the plaintiff had taken the letter; and
(3) that there was no evidence that the two defendants were responsible for the arrest and detention of the plaintiff.
It is against this judgment that the plaintiff has appealed to this court.
True it is that the plaintiff failed to plead in his statement of claim the very words of the libel complained of. Equally true it is that the defendant against whom the allegation of the libel was made failed to ask for particulars and when the summons for directions were taken out, the only issues agreed upon and ordered to be tried were:
“(1) Whether or not the first defendant wrote the words complained of in this action.
(2) Whether or not the words complained of are defamatory.
(3) Whether or not the first and second defendants jointly preferred a charge of stealing against the plaintiff to the Gambaga police.
(4) Whether or not the report to the police was made on a privileged occasion and without malice.
(5) Whether or not any detention of the plaintiff and other acts suffered by the plaintiff from the Gambaga police were the direct result of the defendants’ complaint to the police of the plaintiff.”
The plaintiff failed to set out the very words of the libel in his statement of claim because Jueil Isola, the holder of the defamatory letter who is not a party to this action would not like to part with the letter which contained the alleged libel. The only course open to the plaintiff, therefore was to draft his statement of claim as best he could, and to serve a subpoena duces tecum on Jueil Isola. When the case came on for hearing, the defendant, who had the benefit of counsel, allowed the plaintiff, through his witness Jueil Isola, to tender in evidence the alleged defamatory letter which was admitted as exhibit A and to interpret its contents from Yoruba language into Hausa which the court interpreter also interpreted into English for the benefit of the court.
In my judgment, the circumstances of this case make it imperative for the court to consider the effect of exhibit A, despite the fact that its contents were not pleaded by the plaintiff and issue was not joined in respect of it. The more accurate legal position, it seems to me, is that the very words of the alleged
defamatory letter not having been pleaded, counsel for the defendant should have taken every care to exclude evidence of them, in which case, there being no evidence on record of them, necessarily the plaintiff could not rely on them. But as counsel for the defendant did not object, on the ground that those material facts were not pleaded, and thereby admitted the relevant evidence, the court was bound to consider the case put forward by that evidence.
If the plaintiff is to be punished simply because he failed in his duty to plead a material fact in his statement of claim there is no reason why the defendant should not also be punished for failing in his duty to object to the inclusion of evidence of matters which were not pleaded for in the words of Lord Hewart
C.J. in R. v. Sussex Justices; Ex parte McCarthy: “it is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.”1 Thus, in the case of Abowaba v. Adeshina,2 where a similar situation arose, the West
African Court of Appeal explained the legal position in the following words:
“There are certain types of evidence, such as hearsay, and unstamped or unregistered documents which are inadmissible per se, they cannot form the basis for a decision, and objection to them may be taken at any stage of a trial or on appeal, but in our opinion the case is different where evidence, which could have been ruled out as inadmissible because it is adduced to prove a material fact which was not pleaded, has nevertheless been adduced without objection and is before the Judge.
In our opinion the evidence as to waiver of forfeiture in this case falls within the latter class, and the trial Judge was bound to take it into consideration, . . .”
The principle referred to supra was followed by this court in the case of Yartey v. Construction and Furniture (West Africa) Ltd.3 in which Adumua-Bossman J.S.C. (as he then was) who read the judgment of the court on 19 February 1962 said:
“The principle of the above cited case [i.e. Abowaba’s case] is in complete accord and fully consistent with the principle stated by the Privy Council in Ababio v. Quartey (1916) P.C. ‘74-’28, 40 at p. 42 where Buckmaster, L.C. stated: ‘If there was any capacity disclosed in the course of the action which would have enabled the plaintiff to have maintained his suit, he ought not to have been non-suited; but the Court ought to have allowed all the necessary amendments that were required for the purpose of settling the real controversy between the parties’.”
In view of the facts stated above and the circumstances of this case, I am of the opinion that although the plaintiff failed to plead the alleged defamatory words in his statement of claim, nevertheless the trial judge ought to have taken into consideration the letter, exhibit A, which contained the very words of the libel.
It falls therefore to consider how far the evidence adduced towards establishing the alleged defamatory matter contained in exhibit A is reasonably convincing. That letter as translated, reads as follows:
“Jueil, my dear friend I am happy to write this letter to you. I want to ask of your present condition of health. Well done, in all your undertakings in your house. I have got one case to show you. May Almighty God not permit us to be enemies. At the time Sampson came to Walewale I wanted to send somebody with a letter but I did not give it to Sampson, I gave it to Manaba. Manaba came and told me that at the time he was unloading the lorry the letter that I gave him dropped from his pocket and Sampson took it. I begged him to
give the letter to me but Sampson refused to give it to me because the letter belongs to our company; if a thing does not belong to you don’t say it belongs to you alone. I know the law about letters. Talk to him that he should give the letter back to me, if he fails to give the letter back I shall be compelled to come myself. One who hides himself in corners and listens to people’s talk will never feel happy. We shall meet in good health. A thing that will not cause trouble between us we should not allow to cause trouble between us. Greetings to your wife. I remain, Bello Agyetomobi.”
The plaintiff’s case was based entirely upon the innuendo pleaded in paragraph (3) of the statement of claim. It reads as follows, “By the said words the defendant meant and was understood to mean that the plaintiff is a thief.” My understanding of paragraph (3) supra, in the circumstances of the case, is that any reasonable person reading the words in the letter would come to the inevitable conclusion that the plaintiff had stolen the defendant’s letter; in other words, that the plaintiff is a thief.
Jueil Isola, the person to whom the letter was published gave evidence at the trial and said:
“I read the letter myself. The letter was signed by Bello. I saw the name Bello on it. The address of the writer is P.O. Box 1, Walewale. The letter was delivered to me by bearer called Manaba, the second defendant, personally . . . After reading the letter I was annoyed with Sampson. I stopped going to him. I asked Sampson about the letter. He said he hadn’t got it.”
Under re-examination, the witness said, “I decided not to have anything to do with Sampson the moment I received the letter.”
On the evidence of Jueil Isola, can it fairly be said that the plaintiff discharged the onus of proving that exhibit A conveyed to the mind of a reasonable person the imputation that the plaintiff is a thief? After a careful and most anxious consideration, I have come to the irresistible conclusion that the inference suggested by the innuendo is such as a reasonable person would draw, and, for my part, I am of the opinion that the answer to the question should be in the affirmative.
I am also of the opinion that the matters discussed in the letter exhibit A, in conjunction with the relevant circumstances are reasonably capable of being understood by a reasonable person to apply to the plaintiff. In the circumstances, I think the plaintiff proved the libel against the defendant.
That brings me to the next complaint of the plaintiff that both defendants maliciously caused his arrest and detention. In order to determine the liability of the defendant and the co-defendant on the issue, there should be evidence to prove, (a) that the plaintiff was in fact arrested and detained; and (b) that the said arrest and detention of the plaintiff were made upon the orders of the defendant and the co-defendant. To determine whether or not the plaintiff was arrested and detained, the court has to take into consideration the whole of the evidence, including the circumstances surrounding the case. The evidence of the arrest was given by the plaintiff and his witness and by the co-defendant as well. In his evidence-in-chief, the plaintiff said:
“The first defendant [i.e. defendant] told me that the second defendant [i.e. co-defendant] had told him that I had taken his letter and wanted it and if I had burnt the letter all he wanted was to see the ashes. I told him that I did not know anything about the letter and he went away … I remained in the house. Later the police came to arrest me at about 11 a.m. on 18 October 1963. The police came with the second defendant. I was taken to the Gambaga police station. The first defendant was on the verandah of the police station. I entered the police station. The first defendant came in. The second defendant also came in. The policeman told me that the first defendant said I had taken his letter and that was why I had been arrested. I said I did not see any letter. The first defendant was abusing me that I took the letter and I replied that I hadn’t taken any letter. I also abused him. I was placed in cells. The next day I was called [from the cell] by the inspector.”
The evidence of the plaintiff was confirmed by the evidence of Jueil Isola. The evidence of this witness which I consider most vital on this issue is contained in the following:
“Some days after the receipt of exhibit A I saw that Sampson was arrested by the Gambaga Police. The following day I saw the police. They came to Sampson’s house and searched it. It was Nalerigu market day. Many people crowded there and people were saying this man is a thief that is why the police are here to search him.”
The next important witness who gave evidence on this all-important issue of arrest is the co-defendant himself. His evidence, material to this question under consideration, is as follows:
“At Nalerigu when we left the chief’s place I went to Gambaga and reported to the police that I lost a letter. The police questioned me whether I saw the letter. They asked if I knew where the letter was and I said yes. They said I should go and point out the one. I took them to Nalerigu and pointed out the plaintiff to them. He was taken to Gambaga Police Station by a policeman Mr. Adjah.”
Continuing his evidence under cross-examination, the co-defendant said, “I accompanied the police to Nalerigu and pointed the plaintiff out. The plaintiff was arrested.”
It is obvious, from the record of proceedings, that the plaintiff was totally deprived of his freedom of movement, from the moment he was taken into custody in the presence of the co-defendant at about 11 a.m. on 18 October 1963 until the hour of his release on bail on 19 October 1963. It is beyond doubt, therefore, that the plaintiff was in fact arrested and detained at Gambaga Police Station. Indeed, the evidence also shows that the plaintiff
was arrested without a warrant; that when he was taken to Gambaga Police Station, the defendants were unable to substantiate the charge which they had made against him; and that the plaintiff was detained in a cell in order to enable evidence to be collected against him. But it is not lawful to detain a man in custody without warrant whilst evidence against him is being collected, since it is for the magistrate to grant a remand if the case is not ready for hearing: see John Lewis & Co. v. Tims.4
I shall now proceed to discuss the next issue, namely, whether or not the arrest and detention of the plaintiff were made on the strength of the charge which both defendants had preferred against him and which made it imperative for the police to act. In this regard it is necessary to refer to exhibit B, the station diary, which contains a record of the charge made to the Gambaga Police on 18 October 1963 at about 2. 10 p.m. It reads as follows:
“One Manaba Mamprusi a driver’s mate at Gambaga accompanied by one Bello Lagos of Walewale came to the station and the former reported that he was given a letter by one Bello Lagos resident at Walewale to be given to James Lagos at Nalerigu. That the letter fell down from his pocket and one Sampson Adejumo took it and refused to give it back to him on 15 October 1963 at Nalerigu at night.”
The charge made against Sampson Adejumo, who obviously is the plaintiff in this case is, that he dishonestly appropriated the letter which Bello Lagos gave to Manaba Mamprusi. There is no evidence that the police took statements from the complainants in order to enable them to make their own investigation and come to a decision. On the contrary, the evidence makes it abundantly clear that the defendants relied upon the charge and, in pursuance of that charge, the co-defendant, acting for himself and on behalf of the defendant, travelled with the police from Gambaga to Nalerigu. And to use the words of the co-defendant, “I accompanied the police to Nalerigu and pointed the plaintiff out. The plaintiff was arrested . . . I pointed the plaintiff out to the police because he took the letter.”
I am mindful of the principle that merely to make a charge against a person without actual arrest is not an imprisonment which will support an action. I am also mindful of the law that if a person states facts to a police officer and the latter acting on his own initiative arrests the person implicated, no trespass is committed by the person who gives the information to the police officer. But in the instant case, both defendants had something to do, so far as appears by the evidence, with the arrest and detention of the plaintiff. Indeed, it was the co-defendant who, acting in collaboration with the defendant, preferred the charge against the plaintiff. But the charge was made in such a way that it became the duty of the police to act without exercising their own discretion, as the defendant insisted, soon after the charge was preferred, that the plaintiff should be taken into custody before he, the plaintiff, would have time to dispose of the letter, the subject-matter of the charge. In my judgment, the defendant and the co-defendant ought therefore to suffer the consequences of their actions. And here I quote with approval, a passage in the judgment of Pollock C.B. in Grinham v. Willey,5 which appears to be in point: “A person ought not to be held responsible in trespass, unless he directly and immediately causes the imprisonment.” For my part, I think
the plaintiff proved that his arrest and detention were, without doubt, made upon the direct action of both defendants.
The gist of an action for false imprisonment is the mere imprisonment; the plaintiff need not prove that the imprisonment was unlawful or malicious, but establishes a prima facie case if he proves that he was imprisoned by the defendant. The onus then lies on the defendant of proving justification: see Halsbury’s Laws of England (3rd ed.), Vol. 38, p. 765, para. 1266. In this case no attempt was made by the defendant to justify his actions. His answer to the action for the false imprisonment was that he had preferred a charge against the plaintiff and had never on any occasion ordered his arrest and detention. But the conclusions I have reached make such a plea unsustainable.
Like the defendant, the co-defendant denied, (a) that he, acting on his own or in collaboration with the defendant or with any other person, had preferred a charge against the plaintiff and (b) that the arrest and detention of the plaintiff were made upon his orders, or upon the joint orders of himself and the defendant. He then stated that, “even if there was any report to the Ghana Police, Gambaga, which is not even admitted, the same was made on a privileged occasion and without malice.” For my part, I will not like to expatiate at any length on this plea in view of the fact that the record shows clearly that the co-defendant failed to discharge the onus which lay on him. It follows in my judgment, that not only have the two defendants failed to justify their actions against the plaintiff, but the latter has succeeded in proving that
he is entitled to his relief. The submission of learned counsel that the plaintiff established the libel quite clearly but that the learned trial judge erred in dismissing his claim is therefore well founded.
In my judgment, the conduct of the two defendants from the time the libel was published down to the moment the plaintiff was finally released by the Gambaga Police, makes me feel that substantial damages should be awarded to the plaintiff. This view of mine is fortified by a passage from the judgment of Lord Esher M.R. in Praed v. Graham6 quoted in Gatley on Libel and Slander (5th ed.), p. 555, para. 1018; it is as follows:
“The jury in assessing damages are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they give their verdict. They may consider what his conduct has been before action, after action, and in court during the trial.”
Thus in this case, after the publication of the libel, and prior to the arrest of the plaintiff, the defendant went to the house of the plaintiff in the company of one James and accused the plaintiff of having stolen a letter which the co-defendant had dropped at the outskirts of Nalerigu. The co-defendant also paid three visits to the plaintiff’s house, the first with the aforementioned James, the second with one Maasu and the third with the Chief of Nalerigu. On each of these occasions the co-defendant also charged the plaintiff with the theft of the letter already referred to.
The plaintiff was, at the time of this action, carrying on his business as a petty trader; he was selling and buying beer. It is obvious, in a small village such as Nalerigu, that he was well-known in the community. I think his arrest and detention, and especially the search which was conducted on his premises on a market day and which gave rise to a large number of the market women assembling in his house and calling him a thief, would undoubtedly have had a great effect on his reputation. He is therefore entitled to damages which flow therefrom and for the pain of a false accusation. Thus, in the case of Ley v. Hamilton7 Lord Atkin, when discussing a similar problem, said:
“It is precisely because the ‘real’ damage cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach:
it is impossible to weigh at all closely the compensation which will recompense a man or woman for the insult offered or the pain of a false accusation.”
In the circumstances, I would allow the appeal and award the plaintiff £G600 damages.
JUDGMENT OF APALOO JSC
I concur with the judgment which my brother Mills-Odoi J.S.C. has just read and wish to add a few words. It is not necessary to recapitulate the facts. These have already been very clearly set out by Mills-Odoi JSC
The learned trial judge decided that the libel action failed because of certain deficiencies of pleading. I think he erred in that. There was before the court the letter about which the plaintiff complained and which was admittedly published to Isola. As the contents of that letter were interpreted from Yoruba to English, the learned judge was, in my opinion, under a duty to determine whether that letter was defamatory of the plaintiff. That letter in its natural and primary meaning imputed to the plaintiff the commission of a theft. That is how Isola understood it and the fact that the first defendant himself meant
nothing else is shown by the circumstance that shortly after writing it, he accompanied the co-defendant to the police station and collaborated with the latter in preferring a charge of theft against the plaintiff. In my opinion, the plaintiff made out his case of libel against the first defendant and was entitled to damages.
I agree also with Mills-Odoi JSC, in thinking that both defendants made no valid answer to the charge of false imprisonment. Although the plaintiff was technically imprisoned by the police, it seems plain that both defendants made a charge on which it became the clear duty of the police to act. They did far more than give bona fide information to the police and cannot therefore shield themselves behind the police as the defendants were held entitled to do in Danso v. Oteng8
On the question of damages, I concur with the figure proposed. The plaintiff seems to be a man of some standing at Nalerigu and was not only subjected to great humiliation but his business was practically ruined. I think therefore that the £G600 is entirely reasonable.
JUDGMENT OF SIRIBOE JSC
I also agree.
DECISION
Appeal allowed.
S. K. D.-B.
