By Safi Jimba
False imp(and slander) XIII
Continued from last week
The respondent denied the assault and called a witness who said that, if it had been necessary to use force against the plaintiff, he, and not the respondent, would have used such force.
The learned magistrate found for the respondent, saying that he disbelieved the plaintiff and that it was inconceivable that the respondent, the Oba of Igbogbo and an old man, would have stooped so low as to have committed an assault on the plaintiff.
Held: (1) that one of the reasons why the trial magistrate had said that he disbelieved the evidence of the appellant was based on his view that it was inconceivable that an Oba and an old man would have stooped so low as to have committed the alleged assault;
(2) that it was a misdirection for the trial magistrate to have taken the view that a man would not commit an assault because of his status or age;
(3) that, however, if an appeal was to succeed on the ground of misdirection, it must be shown that the misdirection had resulted in a substantial miscarriage of justice and that the appellant had thereby lost a chance of success, which was fairly open to him upon a substantial part of the case (Barry v. Minturn) A.C. 584;
(4) that if misdirection was established, as had been done in this case, it was for the party supporting the verdict and judgment to show by means of evidence that it did not cause a miscarriage of justice (Anthony v. Halstead (1877) 37 L.T. 433; White v. Barnes (1914) W.N.74);
(5) that this the respondent had done by reference to the evidence of one of the appellant’s own witnesses (said to have been one of his rescuers), who had deposed that at the material time nothing did happen between the parties apart from the fact that he had seen them talking together.
Adeyinka Morgan J.:
“If, according to the appellant’s evidence, the incident occurred after he had submitted his tender, then, if his own witness who, he said, rescued him from the respondent, says that nothing happened between both parties apart from the fact that they were seen talking together, then it cannot be said that the learned magistrate’s judgement resulted in a substantial miscarriage of justice.”
Appeal dismissed
Assault and Battery and Trespass to land
The forcible removal of a trespasser without first giving him the opportunity of leaving quietly is an assault and battery. However, the provocative behavior of a trespasser may be a factor to be taken into consideration in awarding damages.
To be continued next week
