Kofi Gbajor v. James Ogunburegui (1961)


Kofi Gbajor v. James Ogunburegui (1961) All N.L.R. 882

The appellant brought this action in the Magistrates’ Court against the respondent for damages for False Imprisonment.

The respondent made a report to the police that the appellant and other persons had caused damage to his house, and as a result of the complaint a Police officer accompanied the respondent to his village. On reaching there, the respondent identified the appellant and four other persons as the people who were responsible for damaging his house. The appellant and the others were then arrested and taken to the Charge Office for investigation. Bail was subsequently granted to the appellant.

A police constable, who was called as a witness for the appellant, gave evidence that the respondent merely pointed out the appellant as one of the people who had damaged his house; that bail was granted to the appellant before the police had concluded their investigations; that investigations revealed that there was no case against the appellant, and that the Senior Superintendent of Police had advised respondent to institute a civil action, which he did.

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In the Writ of Summons the plaintiff did not allege that the defendant had made a false complaint to the police or that the complaint had been made maliciously.

Having heard evidence on behalf of both parties, the magistrate held that the plaintiff had failed to prove his case and entered a Non-Suit.

In his Judgment the magistrate stated, inter alia, that he had considered whether the complaint was false and whether the defendant had acted mala fide. He referred to a “case file” which had been tendered by the plaintiff, but successfully objected to by the defence, and stated that, had it been admissible in evidence, it would have established mala fides on the part of the defendant.

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Both parties appealed against the Order, the respondent alleging that the proper Order ought to have been one of Dismissal.

(1) Mala fides or Malice are not in issue in an Action for False Imprisonment unless specifically pleaded by the plaintiff. If they are not so pleaded they should not be considered by the trial court in reaching its Judgment.

(2) The act of indicating to the police a person whom one suspects of having committed an offence, is not in itself sufficient to make one liable for False Imprisonment, should the police decide, on their own initiative, to arrest that person.

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(3) Where, in the trial of an action, evidence has been adduced by both parties and the plaintiff has failed to prove his case, the proper Order is that of Dismissal and not of Non-Suit.

(4) An Appellate Court will set aside an Order of Non-Suit and substitute therefore one of Dismissal, where, at the trial of the action, evidence on the matters in dispute was adduced by both parties.

(5) A Court must not speculate upon the contents of a document not in evidence before it.

Appeal dismissed; Cross-Appeal allowed; Order of Non-Suit set aside; Order of Dismissal substituted.




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