NARWU v. ARMAH AND OTHERS [1972] 2 GLR 331
COURT OF APPEAL
Date: 3 JULY 1972
Before: PREMPEH J.S.C. JIAGGE AND SOWAH JJ.A.
CASES REFERRED TO
(1) Hopkins v. Crowe (1836) 4 A. & E. 774; 7 C. & P. 373; 2 H. & W. 21; 5 L.J.K.B. 147; 43 R.R.
475; 111 E.R. 974.
(2) Grinham v. Willey (1859) 4 H. & N. 496; 28 L.J.Ex. 242; 33 L.T. (o.s.) 110; 118 R.R. 573; 157
E.R. 934.
(3) Danso v. Oteng; Danso v. Abaka (1957) 2 W.A.L.R. 167, W.A.C.A.
NATURE OF PROCEEDINGS
APPEAL from a decision of the High Court affirming an award of damages for false imprisonment made by a district court. The facts are fully set out in the judgment.
COUNSEL
Bob Anane for the appellant.
Joe Reindorf for the respondents.
JUDGMENT OF JIAGGE J.A.
This is an appeal from the judgment of the High Court, Accra, dismissing the appellant’s appeal against the decision of the magistrate’s court. The respondents as plaintiffs brought an action against the appellant claiming the sum of ¢1,000.00 as damages “for causing them to be falsely imprisoned by making a false report to the police that the plaintiffs are subverters.” The first respondent in his evidence during the trial, alleged that he was arrested by Police Corporal Crabbe of the Criminal Investigations Department on 23 March 1966 and taken to the Tema Police Station for interrogation. Later the other respondents were also arrested and taken to the police station where they were detained from 8.30 a.m. to 11.30 a.m. when they were released. On the instructions of the police the respondents had to report at the police station each day for 41 days. He alleged further that on 5 May 1966 certain charges were read to them that the respondents had held secret meetings at secluded places at Tema Newtown and that they had threatened to destool the paramount chief, Oninku II, and had collected funds for that purpose. The first respondent claimed that the charges were false and malicious, and he therefore asked to see the complainants. The police brought in the appellant and five others. He alleged further that the respondents admitted making contributions to a fund that was presented to the National Liberation Council in “appreciation of the overthrow of the Kwame Nkrumah regime and that the contributions were not meant for subversive activities as alleged by the appellant.”
The first respondent also gave evidence of a letter sent to the National Liberation Council by the
appellant. This letter exhibit D was tendered in evidence by the Deputy Commissioner of Police J. T.
Hanson at the instance of the respondents. Attached to exhibit D was a list of names of people described as “the saboteurs of Tema.” There were [p.333] of [1972] 2 GLR 331 sixteen names on the list and the names of six of the seven respondents appear on the list. The letter was signed by Nii Adjei Oninku II, Paramount Chief of Tema Traditional Area Council. The appellant, Nii
Adjetey Narwu, signed as deputy chairman. The main accusation in the said letter is contained in
paragraphs (4), (5) and (6) of the letter. It states:
(4) that, the people made mention of in the list are highly spirited in Nkrumahism and are heard to be harboured in Tema, as they have since been establishing unauthorised secret meetings at corners,
thereby ill-advising the cheerful indigenous rather to deviate the complete and eternal freedom
movements introduced by the National Liberation Council and must be checked up immediately or
any time they are caught.
(5) That the said people are all illiterates, very stubborn and forward who would never like to honour
this Tema Traditional Council . . .
(6) That in view of the foregoing we highly pray the National Liberation Council to be watchful and
to take a serious and prompt action against any of the said saboteurs if they write any forgery
petitions such documents and send to the National Liberation Council and to seek down-fall of
anybody any time from now.”
The police corporal, D. K. Appiah, giving evidence at the instance of the respondents at the trial court
stated that the appellant came to the police station at about 5.15 p.m. on 22 March 1966 and lodged a
complaint which was recorded in the station diary. He claimed that the appellant told him:
“That one E. D. Armah and ten others who were supporters of Nii Adjetey Ansah II the destooled Manche of Tema Newtown had since the overthrow of the old regime been holding secret meetings and were abusing and threatening the present Manche of Tema Newtown with destoolment. He maintained that their conduct was conducive to a breach of the peace and that they should be arrested. He therefore thought it expedient to report to the police . . . He added that if his report was not acted upon, he would report the matter to the National Liberation Council.”
Corporal Appiah stated further in evidence that he reported the matter to the station officer who referred it to the regional Criminal Investigations Department for investigation, and that on 25 March 1966 Corporal C. M. Crabbe was requested to investigate the matter. Under cross-examination this witness said, “The police took up investigations into the defendant’s complaint. Whoever was brought to the police station was at the instance of the police officer investigating the case.”
The trial court found that there was false imprisonment and held, “In this instant case there is enough evidence … to compel a reasonable court to conclude that the defendant directed and authorised the arrest [p.334] of [1972] 2 GLR 331 of the plaintiffs” and judgment was entered for the respondents. The appellant appealed to the High Courtand his appeal was dismissed. The only ground of appeal argued by counsel on behalf of the appellant in this court was: “The learned judge was wrong in law in giving judgment against the defendant when all the evidence clearly weighed against plaintiffs-respondents.” It was submitted by counsel on behalf of the appellant that the respondents were arrested by the police officer investigating the matter acting in the
exercise of his own discretion.
It was argued equally effectively on behalf of the respondents that in this country if a policeman is
ordered to investigate, it means invariably to go and bring the man and investigate; that the finding of fact of the magistrate that the arrest was based on the report made to Corporal Appiah was confirmed by the High Court. The learned judge stated inter alia in his judgment:
“I agree absolutely with the learned magistrate and I fully support his decision. The evidence is clear that there was no love lost between the respondents and the appellant who were ranged in opposing camps over a destoolment affair. We all know what that means in this country. I find sufficiently cogent data present for the necessary inference that the appellant deliberately set out to ‘fix’ and to get even with the respondents by giving the false information against them so as to get them into serious trouble with the civil authorities.”
The main issue to be resolved in this case however is whether the appellant caused or authorised the arrest and detention of the respondents. As stated in Salmond on the Law of Torts (15th ed.), p. 165:
“An action for false imprisonment will lie against any person who authorises or directs the unlawful arrest or detention of the plaintiff by a merely ministerial officer of the law. He who sets in motion a merely ministerial officer, such as a constable, has no protection similar to that which is extended to the litigant in a Court of Justice. If he makes the ministerial officer his agent he is responsible for any arrest or detention so procured or authorised. It is necessary to prove actual direction or authorisation; mere information given to such an officer on which he acts at his own discretion, is no ground of liability.”
In Hopkins v. Crowe (1836) 4 A. & E. 774, a hired driver of a cab drawn by a horse brought the horse
back looking overworked by him. The owner of the horse was absent but the owner’s son called in a
policeman and told him that the driver had “ill-used” the horse. The policeman said that if the son charged the driver with cruelty to the horse he would take the driver into custody. The son replied “I do” and the policeman arrested the driver. The court held that the son as complainant was not merely a party giving information to the officer in consequence of which the arrest was made but that he was a principal causing the arrest to be made. Patterson J. said at p. 777: [p.335] of [1972] 2 GLR 331 “This case is very clear. It was proved that the defendant not only told the officer something which he professed to know, but took upon himself to direct the officer to apprehend the plaintiff.
He made the officer his servant for that purpose; and he is therefore, liable in trespass.”
The court held that it was enough that the son made a charge on which it became the duty of the constable
to act. The fact that he did not specifically request or demand the driver’s arrest was not considered
important. In Grinham v. Willey (1859) 4 H. & N. 496, however, the court held that where a party simply gives information and the constable thereupon acts according to his own judgment and makes an arrest, the informer incurs no responsibility in tort for false imprisonment. In that case, the defendant who was robbed of a watch agreed to pay £101 to one Jacobs for the return of the watch. He paid to the said Jacobs the sum of £71 10s. on account at a public house where the robbery was talked about. Jacobs went out and shortly afterwards a man came in and handed a sealed parcel to the plaintiff and told her to give it to the defendant and she did so. The watch was in the parcel. At the request of the defendant a policeman had been waiting outside and soon after the watch had been returned to the defendant, he came in and asked the defendant who had given him back the watch. The defendant replied that it was the plaintiff.
The policeman then took the plaintiff and Jacobs to the police station and there the defendant signed the charge sheet. Pollock C.B. held at p. 498 that “the defendant appealed to the authorities who are charged with the preservation of the peace. The arrest and detention were the acts of the police officer, and the defendant did nothing more than he was bound to do, viz. sign the charge sheet.” These two cases illustrate the distinction drawn by the courts between participation creating liability and merely giving information to a constable who thereupon acts according to his own judgment.
The appellant made his report to Corporal Appiah who wrote it down in the station diary and apart from drawing the attention of his superior officer to the report took no further action. It was part of the case of the respondents in the trial court that it was Corporal Crabbe of the regional Criminal Investigations Department who was instructed to investigate the matter and it was Crabbe who effected the arrest. There was no evidence whatever that Corporal Crabbe ever saw the appellant’s complaint as recorded by Appiah in the station diary. There was no evidence whatever that Crabbe ever met the appellant. Again no evidence was led to show that Corporal Crabbe was given the letter to the National Liberation Council signed by the appellant as deputy chairman. The only evidence on record is that Corporal Crabbe of the regional Criminal Investigations Department was instructed by his superior officer to investigate the appellant’s complaint and the evidence [p.336] of [1972] 2 GLR 331 was silent on whether the complaint was given to him as recorded in the station diary or in some other form. In these circumstances can it be said that the appellant “took upon himself to direct the officer (Crabbe) to apprehend the plaintiff,” or that “he made the officer (i.e. Corporal Crabbe) his servant for the purpose?” Certainly not. When Corporal Crabbe during the course of his investigations decided to invite the respondents to the police station, he acted according to his own judgment and the appellant as an informer incurs no responsibility in the tort of false imprisonment.
An aspect of this case that seemed to weigh heavily with both the trial court and the High Court was the issue of malice. The trial court described exhibit D, the letter to the National Liberation Council, as “a classic in malice.” The learned High Court judge held that:
“as the appellant has succeeded in his clearly impious designs of seriously jeopardising the freedom, and restraining the liberty of his neighbour, he ought not to enjoy any protection from our courts. When it is established at the trial below that that person’s motivations are false, dishonest and deliberately geared towards the detriment of his neighbour, then, as I conceive it, the full brunt of the law, and all its dire consequences, must be released upon him not only to crush out of him his iniquitous and anti-social propensities, but also to nurture him in the golden rule of universal beneficience . . .”However, be that as it may, malice on the part of the appellant does not displace the necessity for the respondents “to prove actual direction or authorisation; mere information given to such an officer, on which he acts at his own discretion, is no ground of liability.” See Salmond on the Law of Torts (supra).
Pollock C.B. in Grinham v. Willey (1859) 4 H. & N. 496 remarked at p. 499: “We ought to take care that people are not put in peril for making complaint when a crime has been committed . . . If a charge be made mala fide, there are ample means of redress.” Malice cannot be the ground of an action in trespass (i.e. false imprisonment). “[A] man may indeed be liable in an action of malicious prosecution if he has wrongfully set the law in motion . . . but he cannot be sued in an action of trespass, which is the remedy for direct and immediate wrong.” See Clerk and Lindsell on Torts (13th ed.), p. 686. Coussey P. in Danso v. Oteng and Danso v. Abaka (1956) 2 W.A.L.R. 167 at p. 172, W.A.C.A. dealing with the issue of false imprisonment in the first case held:
“The first and second defendants are entitled to say, as they do say, that they only placed the matter before the police for investigation. They shield themselves behind the police. There is no conclusive evidence to show that they so influenced the third defendant, Inspector Abaka, that he acted under their direction or authorisation and therefore the first and second defendants cannot be held responsible for the arrest anddetention on August 25 and 26.”
[p.337] of [1972] 2 GLR 331 This was a case in which the chairman of the local authority and the chairman of the authority’s finance committee made a complaint to the local authority police to the effect that the plaintiff was suspected of misappropriating the proceeds from stool farms and the plaintiff was arrested.
I am satisfied that the respondents failed to prove actual direction or authorisation. The appellant’s
complaint was mere information given to Corporal Appiah who recorded it in the station diary. The
regional Criminal Investigations Department instructed Corporal Crabbe to investigate the matter and he in exercising his discretion as a police officer invited the respondents to the police station for questioning.
This is no ground of liability to be incurred by the appellant.
For the reasons stated above, I would allow the appeal and set aside the judgment of the High Court and also the damages awarded against the appellant by the magistrate’s court. The appellant’s costs in this court are assessed at ¢170.00. Costs in the courts below to be taxed.
JUDGMENT OF PREMPEH J.S.C.
I agree.
JUDGMENT OF SOWAH J.A.
I agree.
DECISION
Appeal allowed.
S. O.
