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TANDOH v. ADU


  • New
  • 1961-09-25
  • HIGH COURT
  • GLR 544-547
  • Print

APALOO, J.


Summary

False imprisonment?-Plaintiff arrested by police as a result of a deliberately false complaint by defendant.Practice?-Failure to allege in statement of claim that defendant authorised or directed plaintiff's arrest.

Headnotes

The plaintiff alleged that the defendant made a consciously false complaint of theft against him to the police. As a result the police arrested him and detained him for a number of hours. He sued the defendant for damages for assault, wrongful arrest and false imprisonment. The statement of claim did not allege that the defendant authorised or directed the plaintiff's arrest. A preliminary point was taken that the writ of summons and the statement of claim did not disclose a cause of action, because merely making a false report deliberately does not render a person liable in the tort of false imprisonment.

Judgement

ACTION for damages for assault, wrongful arrest and false imprisonment.

On the 28th June, 1960, the plaintiff issued against the defendant a writ claiming damages for assault, wrongful arrest and false imprisonment. To the writ was attached a statement of claim. In so far as it is material to the point at issue, the plaintiff's case was that the defendant made a consciously false complaint of theft against him to the police by reason of which he was arrested and imprisoned by the Mankranso Local Authority Police for a number of hours. The defendant controverted these facts and in particular it was denied that the complaint, which the [p.545] defendant admittedly made to the police, was false or malicious. In the last paragraph of the statement of defence it was pleaded that the plaintiff's writ disclosed no cause of action and must be struck out.

When trial opened before me on the 20th September, the plaintiff failed to turn up. Both counsel agreeing to that course, I decided that the averment in the last paragraph of the statement of defence be heard as a preliminary issue. Although counsel for the defendant did not concede the truth of the averments pleaded in the statement of claim, it was agreed that these should be assumed for the purpose of the legal argument.

It was contended by counsel for the defendant, if I understand his argument aright, that on the plaintiff 's own showing the person responsible for his imprisonment was not the defendant. It was said that the police were not obliged to arrest the plaintiff on receiving the defendant's complaint but had a discretion to do so. It was submitted that if the police in exercise of their discretion arrested the plaintiff, the complainant was not liable. Counsel contended that this is so even if the complaint was consciously false and malicious. It was submitted that the complainant would be liable only if the police refused to arrest and were obliged to do so on the insistence of the defendant. I was referred to the definition of false imprisonment in Winfield's Law of Tort in which he quoted the old Termes de la Ley. It is not material to set this out as the legal meaning of false imprisonment is well known and I hope I understand it. I was also1 referred to the orthodox cases on the subject, viz. Brown v. Chapman and Sewell v. National Telephone Co.2 In the former of these cases, Coltman, J. decided in 1848: "If an individual prefers a complaint to a magistrate, and procures a warrant to be granted, upon which the accused is taken into custody, the complainant, in such a case, is not liable in trespass for the imprisonment.?"3 In the latter case, the Court of Appeal decided in England in 1907 that the signing of a charge sheet standing alone is not evidence of anything directly causing the imprisonment of a person charged and will not support an action for false imprisonment against the person who signs.4 Counsel for the plaintiff distinguished these two authorities, the first on the ground, as I understand him, that, the detention of the plaintiff was a judicial as opposed to a ministerial act, the second on the ground that the plaintiff was detained by the police and all that the defendant did was to sign a charge sheet ex post facto. In neither of these cases was the complaint on which the police or the magistrate acted found to be consciously false or malicious. Accordingly notwithstanding their undoubted authority, I do not find these two cases of assistance in resolving the problem with which I am confronted.

Mr. Adade for the plaintiff basing himself almost entirely on Clerk and Lindsell on Torts submitted that the defendant would be liable if he made a charge on which it became the duty of the police to act although [p.546] he made no express demand. Accordingly, he contended that the defendant having on the assumed facts made a consciously false complaint of theft on which the police acted in the detention of the plaintiff, he was liable for the resulting imprisonment for which, he contended, there was no lawful excuse.

I take it to be fairly well established that if the complainant directed or authorised the wrongful imprisonment, he is clearly liable. Although neither counsel said so in express terms, I think both arguments proceeded on the footing that this is a correct statement of the law. There is no averment in the plaintiff 's statement of claim and I can only again assume that the defendant neither authorised nor directed the plaintiff's arrest and imprisonment.

At my suggestion, counsel for the defendant referred to the decision of Aitken, J. in Yaw v. Bekoe.5 If that decision is correct, and counsel argued that it is not, it knocks out the bottom of the defence contention. In that case Aitken, J. found that the defendant falsely and maliciously pointed out the plaintiff to the police as having taken part in a fight. The court found that the defendant did this with intent to get the plaintiff into trouble, and that there had in fact been no fight. The court also found that the defendant did not direct or authorise the plaintiff's arrest. In the course of his judgment, Aitken, J. said:

"Nevertheless, from a common-sense point of view, it seems to me that a man who deliberately gives false information about another with intent to get him into trouble, and thereby succeeds in getting him arrested and imprisoned, should not be protected by the law in cases where the arrest and imprisonment are wholly wrongful; the law is surely not such an ass as that!"6

Founding himself on the authority of Flewster v. Role,7 he held the plaintiff was entitled to damages. In my opinion, this is a very salutary decision and the reasoning of Aitken, J. seems to me entirely cogent and relevant. It is particularly so in this country where consciously false complaints to the police are unhappily not uncommon. And had I been untramelled by authority to the contrary, I should have had no hesitation in aligning myself with Aitken, J.

I have also been invited by counsel for the defendant to consider the cases of Adjei Boame v. The Nkomihene Anor.8 and Namatazo v. Wright.9 I have read and considered both and have done my best to appreciate them. The first dealt with the tort of malicious prosecution and the second defined the tort of false imprisonment relying on the Termes de La Ley to which I have already referred. Useful as both decisions are, neither decided any novel point of principle and shed no light on the troublesome question I am asked to decide. [p.547]

Counsel for the defendant also referred me to the case of Danso v. Oteng10 a decision with which I am myself familiar and I considered the case of Etuk and Anor. v. Kusi11 in which I delivered judgment on the 20th March this year. In Danso v. Oteng, on the complaint of the first and second defendants, the plaintiff was arrested and detained for a number of hours, the substance of the complaint being that the plaintiff had misappropriated proceeds from stool farms. The Court of Appeal differing from the trial judge, Korsah, J. (as he then was) expressed themselves as satisfied that the defendants did not act in good faith. They were also satisfied, so I understand their judgment, that the complaint was, to the knowledge of the defendants, false. Nevertheless Coussey, P. with whose judgment the other members of the court (Benson and van Lare, JJ.) concurred, said:

"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 authorization and therefore the first and second defendants cannot be held responsible for the arrest and detention. . ."12

It would seem therefore that neither the conscious falsity of the report nor the mala fides of the defendants weighed with the Court of Appeal. What they considered important was the fact that the defendants neither directed nor authorised the police to arrest the plaintiff although it seemed plain that the arrest and detention of the plaintiff was the natural and probable consequence of the defendants' false and malicious complaint. The decision of Aitken, J. in Yaw v. Bekoe was not cited to the Court of Appeal and I do not speculate whether the judgment of the Court of Appeal would have been the same if the principle in Yaw v. Bekoe had been brought to their notice. I am, however, clearly of opinion that in so far as the principle in Yaw v. Bekoe conflicts with the decision of the Court of Appeal in Danso v. Oteng the former cannot now be regarded as good law. I am bound and bound completely by Danso v. Oteng and indeed Mr. Adade has not sought to argue the contrary.

In the instant case, on the facts which we have assumed to be correct, all the defendant did was to make a complaint to the police, albeit a consciously false and malicious one. On the strength of the complaint, the police without any authorisation or direction by the defendant arrested and detained the plaintiff. Danso v. Oteng therefore applies and there must be an end of this case.

It follows that I accede to the submission of Mr. Akainyah that the plaintiff's writ taken with the statement of claim discloses no cause of action and the claim therefore is dismissed. The defendant will have against the plaintiff 35 guineas costs.

Decision

<P>Action dismissed.</P>

Plaintiff / Appellant

N.Y. B. Adade

Defendant / Respondent

A.A. Akainyah

Referals

(1)  Brown v. Chapman (1848) 6 C.B. 365; 136 E.R. 1292

(2)  Sewell v. National Telephone Co. [1907] 1 K.B. 557, C.A.

(3)  Yaw v. Bekoe (1934) Div.  Ct.  '31'37, 79

(4)  Flewster v. Role (1808) 1 Camp. 187; 170 E.R. 924

(5)  Adjei and Boame v. The Nkomihene & Anor. (1956) 1 W.A.L.R. 262, W.A.C.A.

(6)  Namatazo v. Wright & Anor. (1937) 3 W.A.C.A. 195

(7)  Danso v. Oteng (1957) 2 W.A.L.R. 167, W.A.C.A.

(8)  Etuk & Anor. v. Kusi, High Court, Kumasi, March 20, 1961, unreported.

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