CHIEF L. OYELAKIN BALOGUN
ALHAJI BUSARI AMUBIKAHUN
SUPREME COURT OF NIGERIA
FRIDAY, APR. 28, 1989
(1989) 3 NWLR (Pt. 107) 18
BEFORE THEIR LORDSHIPS
ANDREWS OTUTU OBASEKI, J.S.C. (Presided)
AUGUSTINE NNAMANI, J.S.C.
ADOLPHUS GODWIN KARII-WHYTE, J.S.C.
SALIHU MODIBBO ALFA BELORE, J.S.C. (Read the Lead Judgment)
PHILIP NNAEMEKA-AGU, J.S.C.
CHIEF L. OYELAKIN BALOGUN
ALHAJI BUSARI AMUBIKAHUN
O.A. Abiose – for the Appellant
Chief M. Esan – for the Respondent
ETHICS – Persecution by legal practitioner
TORT – Malicious Prosecution – What Plaintiff must show
BELGORE, J.S.C. (Delivering the Lead Judgment):
The appellant is a legal practitioner based at Ibadan. In his private capacity; he has a land dispute with the respondent in one of the Courts in that city. Sometime in March, 1979, with the land case still pending in Court, the appellant went to the police post at Orita Challenge, Ibadan, and lodged a complaint that the respondent, Alhaji Busari Amubikanhun, a butcher, has employed one Madam Olufunmilayo Adekunle to kill him and steal his dresses and transistor radio. It is apparent that he created the impression that the said Olufunmilayo Adekunle was a witch and that her witchcraft would be employed to cause his death. It was alleged that the woman gained entry into the appellant’s house and actually removed a transistor radio and some dresses before she was caught. After being held by the appellant and perhaps neighbours, she confessed that she was sent on a mission by the respondent to kill the appellant. The appellant took the woman to the police at Orita Challenge. It was already dark, perhaps after 2100 hours. That was on 6th March, 1979. The appellant got the woman locked up at the, police station. Thereafter, he took the police to the house of the respondent and got him arrested, though he claimed later that he only acted as a pointer and offered police a lift in his car to effect the arrest of the respondent. At the police station, the respondent was locked up, the appellant making his presence felt at that place and was scaring away those ready to stand surety for the respondent so that he might be released on police bail. He told one of such persons that the respondent was a murderer and that nobody should risk standing surety for him. The respondent thus slept in the police cell that night and was only released on bail on the 7th March, 1979.
The respondent was finally taken before a Chief Magistrate Court and tried jointly with Olufumnilayo Adekunle. They were discharged and acquitted of the criminal charge. It is noteworthy that the appellant not only gave evidence before the Magistrate Court, but went further to allege that when Adekunle entered his house and was discovered stealing, she attempted to change into a cat” and that he (appellant) and others around saw “her growing a tail like a cat’s.” It was when she could no longer change completely into a cat that she confessed her mission. Whereas, at her joint trial with the respondent, the woman confessed that she was tutored into the act of implicating the respondent by the appellant and that she was paid N300.00 by the appellant for this purpose. The magistrate had no difficulty in disbelieving the case for the prosecution and believed the trial was based on fake and malicious accusation by the appellant in conspiracy with Adekunle. This led to the action in the High Court by the respondent for malicious prosecution which was successful and was upheld by the Court of Appeal consequent upon which this appeal was lodged.
For his appeal, the appellant filed six grounds which may be summarized as follows:
The appellant’s brief of argument is in line with the grounds of appeal.
“QUESTIONS FOR DETERMINATION
(1) On the facts established in evidence, was the Appellant in law, the prosecutor of the Respondent?
(2) Did the Respondent as Plaintiff establish an absence of reasonable and probable cause for his prosecution?
(3) On the evidence, was it not established that there was reasonable and probable cause for the prosecution of the Respondent?
(4) Is the finding of the learned trial court that there was no stealing as alleged by the appellant material to the determination of the issues before the court and if it is, can the fording be justified on the evidence?
(5) Is the statement made by the Appellant to the police on 6th March, 1979 after lodging a report (Exhibit 6) relevant in determining the actual complaint of the appellant and if it is, were its contents proved according to law?
(6) What standard is required of the Respondent in proof of the allegations of fact in paragraphs 7, 8, 14, and 15 of the Statement of Claim and was that standard met?
(7) Is it right for a trial Judge after disallowing certain items of special damage to consider these same items again in awarding general damages?”
In an action for malicious prosecution, the plaintiff must plead and show by evidence that he was prosecuted by the defendant. In this regard, it must be shown clearly that the defendant set in motion against the plaintiff, the law leading to a criminal charge. Secondly, as a result of the prosecution aforementioned the plaintiff was discharged and acquitted, in short that the prosecution was determined in the plaintiffs favour. Thirdly, the plaintiff must plead and satisfy the court by evidence that the prosecution by the defendant was completely without reasonable and probable cause. Finally, that the prosecution was as a result of malice by the defendant against the plaintiff. All the four elements above must be present for successful action for malicious prosecution, and the onus is always on the plaintiff to prove each and every one of them. To prosecute, in essence, is to set in motion the law whereby an appeal is made to some person with judicial authority with regard to the matter in question and to be liable for malicious prosecution, a person must be actively instrumental in setting the law in motion. Merely giving information to the police is not enough; that at best may lead to an action for false imprisonment if the police act on the information and make an arrest and prosecute unsuccessfully.
In our peculiar circumstance, as in this case, who can we say set in motion the prosecution of the respondent? The appellant chose the time to take Olufunmilayo Adekunle to the police i.e. he took her at night and the purported arrest of the woman took place after he safely delivered her to the police to tell her concocted story. The appellant remained it the police station. The officer in charge of the station’s crime section was found to be a friend of the appellant. He (appellant) gave lift, so he said, to the police, and woke up the respondent late at night, got him arrested and took the respondent and the police back in his car to the police station. There he made sure he was around and frightened away friends of the respondent who would like to stand surety for him. He was not only the owner of the pipe, he dictated the tune. But for Mrs. Adekunle making a clean break by revealing the sordid conspiracy, perhaps she and the respondent would still have some criminality hanging round their necks.
It is true the police arrested the respondent and locked him up like any other criminal in their cell and was released on bail the second day. It is also evident that the police charged the respondent before a Magistrate Court. But the real force behind the whole matter is the appellant. He knew very well that the whole criminal complaint was a fabrication and that the arrest, remand in police custody and subsequent trial of the respondent was an unmitigated abuse of judicial process. He it was that technically set the whole prosecution in motion. He made sure the respondent was persecuted for daring to face him in a land case and part of the scenario is this trial in the Magistrate Court. It was the appellant that set in motion the law by appealing to the police to arrest, charge and take the respondent to the police. He approached the police, knowing they had cloak of authority to frame a criminal charge. He was actively instrumental in doing this (Watters v. Pacific Delivery Services Ltd. (1964) 42 D.L.R. (2d) 661; Pandit Gaya Parshad Tewari v. Sardar Bhagat Singh (1908) 24 T.L.R. 884). In Nigerian situation, once a report or complaint is made to the police and strenuously pursued as in this case, and through the same mischievous lying, the police not only make an arrest of the incriminated person, but proffer a charge against him and take him to court for prosecution, the complainant has set in motion the law for a person clothed with authority to arrest and charge the incriminated person. The complainant, having made a false statement, maliciously, and thus causes a judicial act like the issue of arrest warrant to the prejudice of the plaintiff, will be liable for malicious prosecution even though he may not technically have been the prosecutor in the strict sense. Farley v. Danles (1855) 4 EXB 493, 499; Quartz Hill Consolidated Gold Mining Co. v. Eyre (1883) 11 Q.B.D. 674, 684.
The respondent was prosecuted and the prosecution ended in his favour by his being discharged and acquitted. For the successful action of malicious prosecution, there must be evidence of the criminal case ending in favour of the plaintiff; otherwise the fact that a conviction was handed down on him precludes his right to sue. Everett v. Ribbands (1952) 2 Q.B. 198, 202.
As to the requirement for reasonable and probable cause, absence of which the plaintiff has to prove in the instant case, he has shown that no probable or reasonable cause existed for the appellant to lodge the complaint against him. The reasonable and probable cause to my mind, entails the defendant having in his possession as a reasonable and sane person, a set of facts which to an ordinary man would lead to the conclusion that the plaintiff has committed a criminal offence. The belief in criminal culpability of the plaintiff must be honest, based upon full conviction, founded upon reasonable grounds in relation to a set of facts and circumstances which if true would lead every reasonable person to believe the plaintiff has committed an offence. The set of facts and circumstances must lead a prudent man to the conclusion that the plaintiff is probably guilty of the offence he is accused of committing (Herniman v. Smith (1938) A.C. 305). There may be reasonable ground in some cases which may not necessarily lead to conviction in which case there is probable and reasonable cause as to vitiate proceedings for malicious prosecution. Bradshaw v. Waterlow and Sons Ltd. (1915) 3 K.B. 527,534; Dawson v. Vansandau (1863) 11 W.R. 516.
To say the least, the reasonable or probable excuse to be relied upon by the appellant was punctured by the fact that Mrs. Adekunle gave evidence of how she was asked to implicate the respondent and that the plaintiff paid her #300.00 for this conspiracy. The set of facts at the disposal of the appellant, as a professional man, beat any reasonable person’s imagination. Here is a lawyer, with his learning and his eyes wide open, talking of seeing perhaps a witch in the person of Mrs. Adekunle, who was purportedly trying to turn herself into a cat by first growing a tail! With the confession of the truth in court by this woman, there is little wonder the appellant has made himself a laughing stock.
Certainly, the appellant wanted by any means, to harass the respondent, and frighten him away from the land case he had with him. That was his malice. He knew ab initio that he was making false criminal allegation against the respondent. He was actuated by improper and indirect motives because he knew he was making false allegation and his desire was for persecution and not prosecution for the right and proper ends of justice. What he had was not bona fide but malus animus. The proper motive for all prosecution is not to punish an innocent man, it is rather a desire to secure ends of justice. The absence of belief of the truthfulness of his complaint against the plaintiff by the defendant could easily be inferred from the circumstances of the case. An example is this case in hand where the plaintiff cooked up a story, sold it to a woman, Mrs. Adekunle, and used it to prosecute the respondent, a completely innocent person; this is a strong case of manifest malice. Leibo v Buckman (1952) 2 All. E.R. 1057. Similarly, a desire to procure conviction by all means leading to concocting evidence, Stevens v. Midland Counties Railways (1854) 10 Ex. 352. It- would appear that the malice was the land case between the appellant and the respondent and by prosecuting the respondent, the appellant might be able to coerce him into submission – Haddrick v. Heslop (1848) 12 Q.B. 267. Once, however, the defendant could show reasonable and probable cause, malice may also be absent. Herniman v. Smith (1938) A.C. 305. The appellant clearly manifested malice and there is no mitigating aspect of this malice to justify any interference with the decision of the two lower courts.
It is for the above reasons I find no substance in this appeal and I dismiss it with N’500.00 costs to the respondent.
I have had the advantage of reading in advance the draft of the judgment just delivered by my learned brother, Belgore, J.S.C. and I agree with him that the appeal lacks merit and should be dismissed.
This is a case of malicious prosecution in which the High Court of Oyo State, Ibadan (Aboderin, J.) found the defendant liable and awarded N5,000.00 general damages against him. Being dissatisfied, the defendant unsuccessfully appealed against the decision of the High Court to the Court of Appeal. The Court of Appeal found that there was no substance in the contention of the appellant that he was not the prosecutor and that the police prosecuted the respondent. It is true that he made a report of theft of some of his personal properties but he masterminded the prosecution. Madam Adekunle’s statement that the charge of theft was concocted by the appellant and suborned her to give false testimony against the respondent is significant in that it deprived the appellant of the defence that the prosecution was with reasonable and probable cause. The appellant had no cause whatever to lay a charge of theft against the respondent.
The statement of Madam Adekunle that her confession of having carried out the stealing was on the suggestion and schooling by the plaintiff was a serious perversion of the cause of justice and the Court of Appeal had ample justification in dismissing the appeal.
The appellant has further appealed to this Court. Four issues were raised for determination in this appeal and they are:
(1) Whether the appellant is in law the prosecutor of the respondent in the criminal charge before the Magistrate’s Court;
(2) Whether on the evidence before the court. the absence of reasonable cause was proved by the respondent or the appellant in fact proved that there was reasonable cause for the prosecution;
(3) Whether the fact that the appellant made a false report to the police concerning the respondent should have been proved beyond reasonable doubt on a balance of probabilities.
(4) Whether the assessment of damages made by the trial court and affirmed by the Court of Appeal was based on a correct principle. The main question that rises to the surface of all these issues is whether it can be said in law that the appellant prosecuted the respondent and if so whether he had reasonable and probable cause to prosecute him.
These issues and question have been examined in detail in the judgment of my learned brother, Belgore, J.S.C. and I agree with him that the issues must be resolved against the appellant. The claim endorsed on the writ of summons was carefully worded. It reads:
“The plaintiff’s claim against the defendant is for the sum of N100,000.00 (One hundred thousand Naira only) being special and general damages suffered by the plaintiff when the defendant maliciously laid a complaint against him to the police on 6th March 1979 and subsequently procured the police to prosecute him
The plaintiff, now respondent, was tried, acquitted and discharged on a charge of stealing and hence his claim. At the conclusion of the hearing, the learned trial Judge found that the defendant not only W the complaint to the police but also saw to it that the police prosecuted the plaintiff. More particularly, he said in his judgment as follows;
“I have also found that the defendant
(i) procured the said Madam Adekunle to make a false confession incriminating the plaintiff;
(ii) that the defendant made charges at the police station against the plaintiff along the lines of Madam Adekunle’s false confession, knowing them to be false; and
(iii) the defendant used his influence with the police to secure the prosecution of the plaintiff. It only remains to add that the information which the defendant gave to the newspaper reporter on the day of the alleged theft even before he complained to the police (which information was the source of the publication in Exhibit 2) clearly shows malice.
I am satisfied that the defendant did all these things because he was displeased with the land dispute he had with the plaintiff.”
These findings were not upset in the Court of Appeal. Rather, they were affirmed. There are therefore concurrent findings of facts. Where there are concurrent findings of facts in the courts below, i.e., the High Court and the Court of Appeal, the Supreme Court will only interfere with those findings it can be shown on the record that those findings are not justified y the evidence and that the error in coming to those findings had led to a miscarriage of justice. See Lokoyi v. Olojo (1983) 8 SC 61 at 68. Ibrahim v. Shagari (1983) 2 SCNLR 176; Ojomu v. Ajao (1983) 9 SC 22 at 53; Onobruchere & Anor. V. Esegine & Anor. (1986) 1 NWLR (Pt. 19 799 at 804.
The appellant has been unable to satisfy me that there was an error in the finding made by the courts below. When the appellant’s appeal to the Court of Appeal was heard by that court, the central issue raised was eloquently stated by Omololu Thomas, J.C.A. in his judgment thus:
“The whole question raised in this ground must be considered subsidiary to the issue whether the defendant was the prosecutor and it also involved the issue whether there was reasonable and probable cause. There are (sic) ample evidence to support the findings of the trial Judge on the law.”
It may also be asked, what is prosecution? The answer is not so straightforward when a person makes a complaint to the police.
To prosecute is to set the law in motion and the law is only set in motion by an appeal to some person clothed with judicial authority in regard to the matter in question and to be liable for malicious prosecution, a person must be actively responsible or instrumental in setting the law in motion. If a charge is made to a police constable and he thereupon makes an arrest, the party making the charge if liable at all will be liable for false imprisonment; but if he goes before a magistrate who thereupon issues a warrant or summons, then his liability, if any, is for malicious prosecution. The party making the charge is not liable to an action for false imprisonment because he does not set a ministerial officer in motion but a judicial officer.
However, where a person ostensibly makes a charge to the police as in the instant appeal and he instigates the police to arrest the person, makes a formal charge against the person, takes him before the magistrate and prosecutes him, he has failed to leave the police the freedom of action that would have protected him from malicious prosecution. He is more damnified where the charge is fabricated and concocted and the principal witness suborned. See David Inneh v. Iguma Aruegbon (1953) 14 W.A.C.A. 73 at page 74, per Coussey, J.A., Chief Ehiman Payin & Anor. v. Adiaba Aliuah & Anor. (1953) 14 W.A.C.A. 267. ”
In this latter case, i.e. Payin & Anor. v. Adiaba Aliulah & Anor., a case almost on all fours with the instant appeal, the respondents ‘case was that the appellant caused them to be prosecuted on a charge of stealing some coconuts from a plantation which the appellant claimed was his property when in fact the plantation was to his knowledge the property of the respondents. It was admitted that the respondents were prosecuted on a charge of stealing coconut; that they were convicted of the offence, and that the conviction was quashed on appeal. In the action for damages for malicious prosecution W.A.C.A. (per Foster Sutton, P.) held on the issue of prosecution that:
“Although it was true that an officer of police actually preferred the charge of theft against the respondents, the evidence showed that it was the appellant who had been responsible for putting the law in motion against them and had instigated the prosecution.”
I agree with my learned brother, Belgore, JSC, that the appellant set the law in motion and cannot escape his liability for malicious prosecution.
I will also dismiss and I hereby dismiss the appeal for lack of merit. The respondent is entitled to costs in this appeal fixed at N500.00
I had a preview of the judgment just delivered by my learned brother, Belgore, J.S.C. and I agree with him that this appeal is without merit and ought to be dismissed.
For purposes of this short concurring opinion, I shall adopt the facts as set down by my learned brother in his lead judgment. It is important even at this stage to emphasize that whet was involved here were concurrent findings of two courts and it is against these findings that such issues of law as arise must be considered. Of course learned counsel to the appellant, Mr. Abiose, very forcefully attacked these findings on the grounds that they were based on wrong inferences drawn by the learned trial Judge. I should say straight away that after critically examining the proceedings before the learned trial Judge, I was not persuaded by this submission just as the Court of Appeal was not. Such inferences as the learned trial Judge drew appeared to me justified on the evidence before him.
Two findings in this case appear to me to determine the whole issue – that there was a long standing land dispute between the parties and the appellant was by this prosecution in this case attempting to frighten off the respondent, and second, that the entire story of the appellant which allegedly justified his report to the Police was a concoction. Indeed how else could the weird story of the appellant, which included the turning into a cat and the growing of a tail by the would be hired assassin, Adekunle, have been categorized by any court?
I think this case would be put in its proper perspective by referring to passages of the very sound judgment of Aboderin, J. in the matter. After reviewing the case of the parties as to the report to the Police and the allegation of stealing, the learned trial Judge concluded at page 37 of the-proceedings as follows:
“I am satisfied from the foregoing that the defendant’s story about any stealing is false; that the whole idea of stealing and the threat to his life was concocted by him to embarrass, harass and incriminate the plaintiff for the simple reason that he was upset by a land dispute he had with the plaintiff. I am also satisfied that he procured the said Madam Adekunle either with her consent or, what seems more probable on the evidence before the court, fraudulently, to further his plans.”
Having found that the plaintiff (appellant herein) “procured the said Madam Adekunle to make a false confession incriminating the plaintiff; that the defendant made charges at the police station against the plaintiff along the lines of Madam Adekunle’s false confession knowing them to be false and that the defendant used his influence with the police to secure the prosecution of the plaintiff “and that he” did all these things because he was displeased with the land dispute he had with the plaintiff,” he concluded further at page 41, as follows:
“In view of the foregoing, I find that the defendant was the prosecutor of the plaintiff in the criminal charge of conspiracy to steal mentioned earlier in this judgment and that the defendant prosecuted the plaintiff without reasonable and probable cause as he made, and also caused to be made, a completely false complaint against the plaintiff. The baseless complaint was also made maliciously because the defendant was displeased with the land dispute he had with the plaintiff I
As if to set the seal on these findings, Uche Omo, J.C.A. in the Court of Appeal said at page 56 that,
“this is a pathetic case in which the appellant has allowed his belief in juju to becloud his reasoning and sense of balance.”
It seems fairly well settled that in an action. for malicious prosecution the plaintiff has to establish that the defendant was the prosecutor, or in ordinary and usual parlance, that he set the law in motion against him; that he was tried in a court of competent jurisdiction of criminal charge and only found not guilty and discharged; that the report against the plaintiff and his prosecution was without reasonable and probable cause but was rather actuated by malice. See Alhadi v. Allie 13 W.A.CA. 323; Mohammed Amin v. Bannerjee (1947) A.C. 322, 331. In the instant case, only two issues would be considered here. Was the appellant the prosecutor? and was there reasonable and probable cause for the prosecution? As to the first, Mr. Abiose for appellant, contended that the appellant was not the prosecutor and that all he did was merely to report the theft to the Police. Although he attempted to draw a distinction between a report to the Police and a report to the Magistrate at common law, he agreed that if one can show that the whole thing was a concoction such a distinction would not arise. For his part, Chief Esan, for the respondent, submitted that if one merely made a report to the Police and did nothing more he could claim he was not the prosecutor. He referred to Clark and Lindsell on Torts 14th Edition paragraph 1801 at p. 1079.
It was stated that if a charge is made to a constable and he thereupon makes an arrest, the party making the charge, if liable at all, will be liable to an action for false imprisonment, on the ground that he had directed the arrest and it is his own as and not the act of the law. But that if he goes before a magistrate who thereupon issues his warrant, there his liability, if any, is for malicious prosecution. See Clark and Lindsell on Torts 15th Edition, paragraph 1807, p. 862. I am not even sure that these distinctions and the distinction which Mr. Abiose sought to make here between a report to the Police and a report to the Magistrate, even apart from the issue of concoction, arises here. I do not think that I fully understand Chief Esan’s condition of doing more than report to the Police. I think it is safer to go by the usual setting the law in motion. A man who reports a case to the Police, makes statement to the Police and perhaps takes the Police to the scene to of crime, and produces such witnesses as he thinks support his false allegations against the other party is in my view the prosecutor. In this country, these things mentioned are the necessary follow up to a report to the Police, and if the complainant refuses to supply them, the Police might well charge him with giving false information to the Police. If on the other hand he merely makes a complaint and does nothing more, the Police alight well refuse to investigate the complaint. There will be no charge and so no question of malicious prosecution. See Payin and Anor. v. Aliuah 14 W.A.C.A. 267 on this issue; Also Bannerjee (supra); Watters v. Pacific Delivery Services Ltd. (1964) 42 D.L.R. (2d) 661. In any case, the appellant did all to put the question of whether he was the prosecutor beyond question. The learned trial Judge fully reviewed the evidence of the Superior Police Officer, Aina, D. W. 5, a friend of the appellant, and D. W.4, the investigating Police Constable, and came to the conclusion that the appellant not only reported a case to the Police, but he used his influence to ensure that a prosecution followed. He even stayed around the Police Station to dissuade those who wished to take the respondent on bail!
In David Inneh v. Iguma Aruegbon 14 W.A.C.A. 73, a case in which a defendant made a report of stealing against the plaintiff, a warrant was issued against her by the Magistrate and it was found by the trial Judge that this was a trumped charge, the West African Court of Appeal made pronouncements appearing to agree with Chief Esan’s submission. There Coussey, J.A. who read the opinion of the Court said at page 74,
“It has been argued that if, as is proved, the defendant laid the information against the plaintiff before the Magistrate and the Magistrate then issued the Warrant, as provided for by Section 97 and 23 of the Criminal Procedure Code then the defendant could not be said to have initiated the proceedings, in that he had done nothing more than what was required of him as a citizen in giving information of an offence which had occurred. There might be some force in this argument if it had been established that the defendant did not go beyond giving what he believed to be correct information to the Police and genuinely swore to the information on which the warrant was issued.”
With respect, and from what I said above, I am not too sure that this light condition would be accepted today in the light of procedure in our Police Stations. After reviewing the facts of the case, however, Coussey, J.A. referred to the Indian Case of Bhagat Singh and Anor. v. Pandit Tewari 24 T.L.R. 884 and continued,
“The facts are more appropriate to….. where it was held that if a charge is false to the knowledge of the complainant, if he misleads the Police by bringing suborned witnesses to support it, if he influences the police to assist him in sending an innocent man to trial, he cannot escape liability, because the prosecution has not technically been conducted by him.”
In my view, all these matters mentioned here would follow in a report to the Police which the complainant knows is false. I don’t see the need therefore to refer to a case where the defendant merely makes a report to the Police. Such situation would occur in the rare cases in which a good citizen passing by sees the commission of a criminal offence and lodges a report to the Police. In Payin and Anor. (supra) Foster-Sutton, P. held in a case in which it was alleged the defendant was not the prosecutor because he merely reported to the Police, that –
“there is a considerable volume of evidence upon which the learned trial Judge was, in my view, justified in drawing the conclusion, which he did, that it was the appellant who was responsible for putting the law in motion against the respondent, that it was he who instigated the prosecution.”
As regards whether there was reasonable and probable cause, the matter seems to have been settled for it was found that the appellant’s story was a concoction. He had no belief in its truth from the beginning. There was therefore no existence of any state of facts as would justify the course taken or give any reasonable basis to the course taken. Absence of reasonable and probable cause is usually evidence of malice. Here the learned trial Judge held that there was no probable and reasonable cause. The appellant’s story was a frame up and he was actuated by a desire to frighten off the respondent from the land dispute between them. In Payin and Anor. (supra), the West African Court of Appeal held the malice required here to be absence of honest belief in the charge preferred against the plaintiff. Foster-Sutton P. here referred with approval to two English cases -Mitchell v. Jenkins 5 B and Ad 588, 596 where Parke, J. said,
“the term ‘malice’ in this sort of action is not to be considered in the sense of spite or hatred against an individual, but of malus animus, and a denoting that the party is actuated by improper and indirect motives.”
and to Meering v. Graham-White Aviation Co. 122 L.T. 44, 55, 56 where Atkin, L.J. said,
“Honest belief seems to be the substantial thing that has always to be decided and such belief must be not merely belief by the prosecutor of the guilt of the person, but it must be a belief that the prosecutor will be able to adduce sufficient evidence before a jury or the court as would justify the court in convicting the accused.”
It was for these reasons, and the more detailed reasons in the lead reasons, that I dismissed this appeal.
I have had the privilege of reading the judgment of my learned brother, S.M.A. Belgore, J.S.C. in this appeal, and agree with him that this appeal lacks merit and ought to be dismissed. The lead judgment having dealt extensively with the issues in the appeal, I consider it unnecessary to add my opinion which in this case agrees entirely with that expressed.
There is no doubt on the evidence before the learned trial Judge that the prosecution of the respondent was initiated by the appellant who made certain by the use of his friends in the Police Force that respondent was detained by the Police and he knew at the time that he had no reasonable or probable cause to initiate the prosecution. Appellant knew that his complaint against the respondent was a fabricated story. There was at the time a pending litigation in respect of a disputed ownership of land between the parties. Finally all the surrounding circumstances clearly disclosed that appellant was actuated by express malice in the course of conduct he pursued in the prosecution of the respondent. The trial Judge wars right to hold that the complainant having set in motion the machinery to prosecute the. respondent, did so without reasonable and probable cause, and in this case actuated by express malice, and respondent having been unsuccessfully prosecuted, the prosecution resulting in his acquittal, appellant is liable, fornut icious prosecution – See Everett v. Ribbands (1952) 2 Q.B. 198, at p. 242, Leibo v. Buckman (1992) 2 ALL E.R.1657, Inneh v. Aruegbon (1952)14 W.A.C.A. 73, Payin & Anor. v. Aliuah & Anor. (1953) 14 W.A.C.A. 267.
The Court of Appeal was right in dismissing the appeal as without merit. I also will dismiss and hereby dismiss the appeal of the appellant against the judgment of the Court of Appeal.
Appellant shall pay costs to the respondent assessed at N500.00.
The claim before an Ibadan High Court in this case was for the sum of N100,000.00 being special and general damages for libel. After carefully analyzing the facts the trial court, Aboderin, J., found for the plaintiff and awarded him N5,000.00 as general damages. The Court of Appeal, Ibadan Division: coram – Uche Omo, Omololu Thomas, and Abdulahi, JJ. C.A., dismissed the appeal, with costs. The defendant (hereinafter called the appellant) has appealed further to this Court. The plaintiff shall be referred to as the respondent.
The facts which have led to the appeal could be summarized briefly. The appellant, a legal practitioner, had a land case which was at all material times pending in court against the respondent. All feelings appear to be high and the respondent stated that the appellant had promised to deal severely with him. According to the respondent, on the 6th of March, 1979, the appellant lodged a report at the Challenge Police Station, Ibadan, against him. The allegation was that the respondent conspired with one Madam Olufunmilayo Adekunle to kill him (the appellant) with juju and steal his transistor radio and wearing apparels. The woman herself was arrested. The respondent was also arrested and detained. Though appellant tried to stop Alhaji Adeleke (P.W.3) from taking his own bail, he was later released on bail. The respondent’s case was that the whole affair was concocted and executed with the assistance of the police boss, one Mr. Aina, who was appellant’s friend and was instrumental to respondent’s prosecution. As a result of it all, he suffered loss and damage.
The appellant’s case was that he merely gave an information to the police about Madam Adekunle and that it was as a result of a confessional statement of Madam Adekunle and not because of any report by him that the respondent was arrested and charged. He claimed that he acted without malice but in bona file belief that he was discharging a public duty. He denied being friendly with Mr. Aina.
It was not disputed that the respondent and Madam Adekunle were prosecuted before the Magistrate but both discharged and acquitted. The copy of proceeding in that case was tendered and admitted as Exh. 3.
After hearing evidence and listening to addresses of counsel, the learned trial Judge made a summary of each party’s case, a very important proposition of law and reached certain conclusions, which I believe, are crucial to the issues which arise for determination in this appeal. He said:
“To put it briefly, the plaintiff says that there was in fact no stealing in the defendant’s house and that all that happened was deliberately concocted and planned by the defendant who procured Madam Adekunle to incriminate the plaintiff and to embarrass him. The defendant on me other hand says that there was a theft by Madam Adekunle and a confession by her that it was the plaintiff who sent her. The defendant maintained that all he did was to report the theft to the police.”
Then he carefully analysed the facts in a most impressive way and made a number of far-reaching findings on them. I shall be content with the learned Judge’s summary of these findings himself. He said:
“I have also found that the defendant
(i) Procured the said Madam Adekunle to make a false confession incriminating the plaintiff;
(ii) that the defendant made charges at the police station against the plaintiff along. the lines of Madam Adekunle’s false confession knowing them to be false; and
(iii) that the defendant used his influence with the police to secure the prosecution of the plaintiff. It only remains to add that the information which the defendant gave to the news paper reporter on the day of the alleged theft, even before he complained to the police, (which information was the source of the publication in Exhibit 2) clearly shows malice.
I am satisfied that the defendant did all these things because he was displeased with the land dispute he had with the plaintiff.” Based on the above findings he proceeded to make a proposition of law thus: “Where a person makes a charge which is groundless to his knowledge against the plaintiff, the prosecution of the plaintiff was initiated by him without reasonable and probable cause.”
Then he found for the respondent, with damages and costs, as I have stated. In the Court of Appeal, Omololu-Thomas, J.C.A., with whom the other two learned Justices of Appeal agreed, in my view, stated the central issue correctly when he held:
“The whole question raised in this ground must be considered subsidiary to the issue whether the defendant was the prosecutor, and it also involved the issue whether there was reasonable and probable cause. There are (sic) ample evidence to support the findings of the trial Judge and his conclusions on the law.”
The learned Justices later dismissed the appeal.
In this Court, the learned counsel for the appellant framed seven issues for determination but in argument he had to concede it that the formulation of the four issues put forward by the respondent is better and covers all the questions in contention. The four issues are as follows:
“(1) Whether the Appellant is in law the prosecutor of the Respondent in the criminal charge before the Magistrate’s court;
(2) Whether on the evidence before the court, the absence of reasonable cause was proved by the Respondent or the Appellant infant proved that there was reasonable cause for the prosecution;
(3) Whether the fact that the Appellant made a false report to the police concerning the Respondent should have been proved beyond reasonable doubt or on a balance of probabilities;
(4) Whether the assessment of damages made by the trial court and affirmed by the Court of Appeal was based on correct principles.”
To my mind, as stated by the Court of Appeal, the central issue, covered by Issues Numbers (i) and (ii), is this: did the appellant, in law, prosecute the respondent and, if he did, was it without reasonable and probable cause? Put in another way, was the learned trial Judge correct in his proposition of law which I set out above?
I would like to begin my consideration of this central issue by referring to the case of David Inneh v. Iguma Aruegbon (1952) 14 W.A.C.A. 73. Coussey, J.A. at page 74 said:
“It has been argued that if, as is proved, the defendant laid the information against the plaintiff before the Magistrate, and the Magistrate then issued his Warrant, as provided for by section 97 and 23 of the Criminal Procedure Code, then the defendant could not be said to have initiated the proceedings, in that he had done nothing more than what was required of him as a citizen in giving information of an offence which had occurred. There might be some force in this argument if it had been established that the defendant did not go beyond giving what he believed to be correct information to the police and genuinely swore to the information on which the warrant was issued. The facts, however, as found by the learned Judge, are that the defendant made a charge groundless to his knowledge and which amounted to gross abuse of legal process.” Then later he continued:
“The facts are far more approximate to the case of Pandit Tewari v. Sardar Bhagat Singh and Anor. 24 T.L.R. 884, where it was held that if a charge is false to the knowledge of the complainant, if he misleads the police by bringing suborned witnesses to support it, if he influences the police to assist him in sending an innocent man for trial, he cannot escape liability, because the prosecution has not technically been conducted by him.”
The instant case is on all fours with that case. Other decided cases support that proposition of law. See, for examples: Chief Ehiman Payin & Anor. v. Adiaba Aliuah & Anor. (1953) 14 W.A.C.A. 267.
Chukuka v. Okolocha (1974) 4 U.I.L.R. 496. Malz v. Rosen (1966) 2 All E.R. 10.
In my view the law appears to be now settled. If a person simply makes a report to a police officer, a ministerial officer, and the police using their discretion decide to arrest, charge and prosecute the suspect, the person making the report, if liable at all will be liable for false imprisonment on the ground that he set in motion a ministerial officer and not a judicial officer. He could only have been liable for malicious prosecution if he set in motion the action of a judicial officer. But where the person making the report knew at the time he was making the report that the whole case was false and fabricated and that he has merely used the police to give vent to his malicious venom against the person to be charged, then, though technically he has not prosecuted that person, the law will not allow him to escape liability by saying that the police discretion interposed between the report and the prosecution. This makes sense. After all, the maxim is: qui facit per alium facit per se. If, as in this case, all that the police did was under the instrumentality of the appellant, it is only right that he be not allowed to take cover under their wings. He was the respondent’s prosecutor in law. The fact that he knew the whole matter to be a concoction is also evidence that the prosecution was without reasonable or probable cause. The learned Judge’s finding of malice has also not been controverted. I am of the view that the courts below were right to have found him liable for malicious prosecution.
It is on the issue of damages that I have some reservations and observations to make. It is my view that the learned Judge was wrong to have, in the assessment of general damages, taken into consideration the costs of de fence of the criminal case and loss of business- items which had been claimed as special damages but were not proved – in the assessment of general damages. However, considering the other grounds for award of general damages, I am of the view that an award of N5,000.00 is not excessive. I would dismiss the appeal on this ground.
For the above reasons, I agree with my learned brother, Belgore, J.S.C., that the appeal lacks merit and ought to be dismissed. It is hereby dismissed with N500.00 costs.