APPEAL NO: SC.39/1968

CITATION: SC (1970) 5 LLER 1

Alternative Citation:

(1970) All N.L.R 199

Before Their Lordships












Facts of the case as set out by the Chief Magistrate and accepted by both the High Court and the Supreme Court.

I here set out those facts which I accept. The plaintiff a P. and T. worker at Agbarho, outside the jurisdication of the Tax Area of the Warri Divisional Council came to Warri to his departmental provincial headquarters to receive his salary on 25-9-62. At Egbudu, i.e. at the entrance into Warri Township, the 1st defendant a messenger attached to the Rate Clerk of the Counsil saw him and demanded to know of him if he, the plaintiff, had paid his current tax. The plaintiff told him that he was a P. and T. worker and that he was going to his headquarters to receive his wages; that he pays tax under the P.A.Y.E. system which is to say that tax is deducted from his salary monthly. He had with him at the time his P. and T. hat, rain-cape, a union card on him is fixed his photograph in P. and T. uniform. He showed all to the 1st defendant. But the 1st defendant insisted that he must show a tax receipt or else he was arresting and taking him to court. The plaintiff then offered to hire a taxi and carry the 1st defendant to his provincial head of department who would further satisfy the 1st defendant on the issue. The 1st defendant refused to accept the offer. Fortunately a man Ope was passing by and the plaintiff hailed on him and requested him to report the matter to his head of department.

Before this man returned to Egbudu, 1st defendant had taken plaintiff into custody and had taken him to 2nd defendant at the Rating Office at Ajamogha.”

The learned Chief Magistrate went on later in his judgement to say:-

There was the request by the plaintiff to take 1st defendant to the head of department to prove that he the plaintiff is a P. and T. worker and that he pays tax as he earns. The defendants turned all these down. All the defendants could do is arrest on reasonable suspicion. But it is not open to them deliberately to be blind to all efforts by the suspect to dislodge their suspicions and to prove that he in fact commits no offence whatsoever.

I am satisfied that the defendants were acting out of pique.”

On appeal to the High Court Begho, J. (as he then was) allowed the appeal and set aside the award of damages and costs and dismissed the plaintiff’s claim without awarding costs. The learned judge on appeal was of the view that the defendants had reasonable suspicion for the arrest and detention of the plaintiff and so had justified their conduct. In his judgement he stated inter alia:-

“The plaintiff carried and produced no legal evidence such as the interim certificate of payment of income tax under the P.A.Y.E. scheme (exhibit F) or the final certificate of payment (like the specimen exhibit G): Legally, until a suspected tax defaulter produces something in the nature of exhibit F and G which appear to be the only legal evidence of payment, there is reasonable suspicion for arresting him. The mere fact that in wearing native dress’ the arrested person carries with him a P. and T. hat, rain-cape and union card to show that he is a P. and T. employee, is no conclusive proof that the man is really a P. and T. employee as anyone can come into possession of these things. Even if the things indicate that the man is a P. and T. employee they do not indicate that he pays his tax under the P.A.Y.E. scheme. Even a payslip is not an acceptable legal proof in the Region for payment of tax under the P.A. Y.E. scheme.

The plaintiff himself admitted that when he was halted on the road by the 1st defendant he was asked if he had paid his 1962 tax and he explained that he was a P. and T. worker paying under the P.A.Y.E. scheme. The ‘charge on suspicion’ was there on the spot made known to the plaintiff and he offered an explanation which was not accepted.”

The plaintiff has appealed to the Supreme Court but informed the court at the out-set of the appeal that the 2nd defendant had since died and Mr Unurhoro for the appellant then stated that he did not wish to pursue the appeal against the 2nd defendant but confined it to the 1st defendant so the appeal as against the 2nd defendant was dismissed.

The main point taken on the appeal was whether the learned judge on appeal was right to reverse the learned Chief Magistrate and to find that there was reasonable suspicion for the 1st defendant to arrest and detain the plaintiff.

The Supreme Court, held, inter alia,

We would also refer to the judgement of Diplock, L.J. (as he then was) in Dallison v. Caffrey [1965] 1 Q.B. 348 as to the question of reasonableness in a case involving both false imprisonment and malicious prosecution where at page 371 he said:-

“One word about the requirement that the arrestor or prosecutor should act honestly as well as reasonably. In this context it means no more than that he himself at the time believed that there was reasonably and probable cause, in the sense that I have defined it above, for the arrest or for the prosecution, as the case may be. The test whether there was reasonable and probable cause for the arrest or prosecution is an objective one, namely, whether a reasonable man, assumed to know the law and possessed of the information which in fact was possessed by the defendant, would believe that there was reasonable and probable cause. Where that test is satisfied, the onus lies on the person who has been arrested or prosecuted to establish that his arrestor or prosecutor did not in fact believe what ex hypothesis he would have believed had he been reasonable (see Herniman v. Smith (1938) A.C. 305, 316 per Lord Atkin). In the nature of things this issue can seldom seriously arise.”

…In our view therefore the learned Chief Magistrate on the facts came to the right conclusion and the learned judge on appeal was in error in reversing him. We accordingly set aside the judgement of Begho, J. dismissing the plaintiff’s claim and, as no argument was presented before us as to the quantum of damages awarded, we restore the judgement of the Chief Magistrate awarding the plaintiff, as against the 1st defendant, 1 00pounds damages and 35 guineas costs. The plaintiff is also entitled as against the 1st defendant to his costs in the High Court on the appeal which we assess at 20 guineas and to his costs in this Court which we assess at 71 guineas. As we have stated earlier the appeal as against the 2nd defendant was dismissed during the hearing.

Appeal allowed: judgement of High Court set aside.