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COURT OF APPEAL
WEDNESDAY, 20TH APRIL 1994
1 NWLR (Pt.371 at 357
BEFORE THEIR LORDSHIPS
C.A. Ekhasemonhe – for appellant
V.I. Aigbogun – for respondent
TORTS: Malicious prosecution, meaning of, “reason and probable cause” as an ingrdient thereof; False imprisonment – ingridients of.
DAMAGES: Award of Damages
OKWUCHUKWU OPENE Delivering Leading Judgement:
This is an appeal against the decision of Coomassie J (as he then was) on 24/04/92 in which he found the appellant liable for malicious prosecution of the respondent whereupon he awarded the sum of N50,000.00 (Fifty Thousand Naira) in favour of the respondent.
A brief fact of the present case is that on or about the 5th day of July 1989, the appellant’s house at No. 3 Wasiri Maccido Road, Malali, Kaduna was burgled by some unknown persons and so many valuable properties were stolen.
The appellant then lodged a report at the Police Station, Malali, Kaduna Before this incident, the appellant has a contractual relationship with Security Guard System (a Security Company) at No 6/7 Gboko Road, Zango House Ungwan Kanawa, Kaduna in which the respondent and three other persons were employees.
The respondent and the three other persons were at various times posted to guard the appellant’s house before the appellant’s house was burgled.
In course of the police Investigation, P.W. 3 a Police Officer went to the Security Guard System to find out the persons that were guarding the appellant’s house prior to the incident. Later the respondent and three other Security men were arrested and then arraigned before the Area Court, Malaki Kaduna for criminal conspiracy and theft.
As the Area Court the appellant and the investigating Police Officer (I.P.O.) that is P.W.3 were not called to testify and the respondent and the other three persons were discharged under Sect. 165 of Criminal procedure Code for failure of the prosecution to call the witnesses.
On 17/5/90, the respondent filed this suit claiming as follows:-
“The plaintiff’s claim against the defendant is for the sum of N1,700,000.00 (One Million, Seven Hundred Thousand Naira) being damages for the malicious prosecution of the plaintiff at the instance of the defendant.
Pleadings were duly filed and exchanged and the matter went into a full trial and at the end, the learned trial Judge found the appellant liable for malicious prosecution and awarded the sum of N50,000.00 (Fifty Thousand Naira) in respondent’s favour. Dissatisfied with the said Judgment the appellant has now appealed to this court.
The appellant filed 7 grounds of appeal which read as follows:-
Grounds of appeal:
(1) That the learned trial Judge erred in law in holding the defendant/appellant liable for malicious prosecution of the plaintiff/respondent in this suit when:
(2) That the learned trial Judge erred in law in that he held the appellant liable for malicious prosecution of the respondent when:-
(3) That the learned trial Judged erred in law in giving judgment against the appellant when the respondent failed to prove that the prosecution in issue in this matter was without reasonable and probable cause and that the prosecution was malicious.
(4) That the learned trial Judged erred in law in giving judgment in favour of the respondent when:-
iii. No evidence that it was the appellant that instigated the police to arraign the respondent before the Area Court Malali Kaduna.
(5) That the learned trial Judged erred in law in holding the appellant liable for malicious prosecution of the respondent when:-
iii. The discharge under section 165 of the Criminal Procedure Code Law is not a discharge on the merit as no evidence was taken and heard from either or both parties in this matter.
(6) That the sum of N50,000.00 damages awarded in favour of the respondent is excessive having regard to all the circumstances of this case.
(7) The decision is against the weight of evidence in this matter”.
The learned counsel for the appellant in the appellant’s brief formulated five issues for determination by the Court and they read:-
ISSUE NO. 1 Whether or not there was/is reasonable and probable cause for the prosecution of the respondent in this matter or alternatively did the respondent establish an absence of reasonable and probable cause for his prosecution in this suit?.
ISSUE NO.2 Did the respondent establish MALICE which is one of the essential elements of the offence of Malicious Prosecution?
ISSUE NO. 3 – Whether or not all the necessary ingredients of Malicious Prosecution have been established by the respondent entitling the trial court to award him N50,000.00 damages.
ISSUE NO.4 – Whether or not especially in view of the evidence of P.W.3 under cross examination the police were not in law the prosecutors of the respondent in this matter?
ISSUE NO. 5 – Is the N50,000.00 damages awarded not excessive putting into consideration all to circumstances of this case?.
In the respondent’s brief, the learned counsel for the respondent identified 4 issues for determination by the court and they read:-
iii Whether or not the appellants was not responsible for the prosecution, of the respondent at the Malaki Area Court ?.
iv Whether or not the award of N50,000.00 as damages was excessive?.
After a perusal of the issues formulated by both counsel it appears to me that issues formulated by the appellant’s counsel are more germane and I will adopt them for the purpose of this judgment.
Issue No 1 is:
“Whether or not there was/is reasonable and probable cause for the prosecution of the respondent in this matter or alternatively did the respondent establish an absence of reasonable and probable cause for his prosecution in this suit”.
It has been settled in all decided cases that for a plaintiff to succeed in an action for malicious prosecution that he must establish four elements for the tort i.e.
(1) that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge;
(2) that the prosecution was determined in his favour
(3) that it was without reasonable and probable cause;
(4) that it was malicious
The onus is on the plaintiff to prove every one of those four elements.
Mr. Ekhasemombo, the learned counsel for the appellant has submitted that the respondent has failed to prove that his prosecution was completely without reasonable and probable cause and that the respondent admitted that a person whose house is burgled and properties stolen has the right to report to the Police.
He stated that P.W.3 did not say that the complaint of the appellant at Malali Police Station was false; he argued that in law that there may be a reasonable ground which will not necessarily lead to conviction in which case there is probable and reasonable cause as in this case which would vitiate proceedings for malicious prosecution. He referred to: Bradshaw v Warlow & Sons Ltd (1915) 3 K.B. 527 at 534.
He stated that the arrest of the respondent consequent upon the house breaking and theft in the house of appellant on 5/7/89 five days after the respondent had stopped guarding the appellant’s house and that P.W. 3 had admitted that the complaint made by the appellant to the police was in order. He submitted that this means that the arrest of the respondent was made on reasonable and probable cause moreso when there was no evidence that the report of house breaking and theft made by the appellant and supported by Exh, 1 was false or was a fabricated story.
He referred to the evidence of P.W 3 at 21 where he said that the appellant specifically mentioned the respondent to the police as the suspect and at P.22 where he stated:-
“It is normal in the Police Station when a complaint is lodged, the police do ask the complainant who and who does he suspect. This is to enable us know where to start investigation. During the investigation we may discover that the names may be correct or not. The complainant’s complaint to Malali Police Station was in order”.
He submitted that even if the appellant had specifically mentioned the respondent as the suspect that this will not make him liable in malicious prosecution because what he did was to enable to Police to know where to start their investigation.
He also submitted that Exh. 1 the proceedings from Area Court tendered by the respondent shows that the appellant did not mention anybody and that this is at variance with the evidence of P.W.3 at 21 lines 9-10.
Her referred to: Hicks v Faulkner (1878) 8 Q.B.D 167 at p.171; Horst Sommer & Ors v Federal Housing Authority (1992) 1 SCNJ 73 at p.80 (1992) 1 NWLR (pt 219) 548; Leibo v Buckman Ltd & Anor (1952) 2 ALL ER 1057 at 1064. He submitted that respondent has failed to establish absence of reasonable and probable cause against the appellant and then urged the court to dismiss the case.
Mrs. Aigbogun, the learned counsel for the respondent in her brief of argument stated that a person whose house was burgled and some valuable items therein stolen has reasonable and probable cause to lodge the complaint to the Police but that once a person starts naming specific persons as the people who broke into the house that it is then the duty on him to show why he suspects the person that he named.
She said that there is no evidence of the purported burglary and theft either from the appellant or more especially the Police and that the appellant in his report to the Police specifically named the respondent and some other persons as the people who broke in to his house and stole the stated items.
She submitted that once he named the respondent as the probable burglar and thief that the burden was on him to state the grounds for his suspicion and belief and this burden the appellant did not discharge and that if follows that he had no reasonable or probable cause for naming the respondent as probable burglar and thief which led to the prosecution of the respondent.
She submitted that the evidence of P.W. 3 being unchallenged and uncontradicted that the learned trial Judge who had opportunity of watching him rightly believed his evidence and that it is no longer open for the appellant to challenged this evidence on appeal.
In Hicks v. Faukner (1878) 8 Q.B.D. 167 at P. 171 reasonable and probable cause was defined as follows:-
“An honest belief in the guilt of the accused based upon a full conviction founded upon reasonable ground of the existence of a state of circumstances which assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed”.
In Balogun v Amubikahu (1989) 3 NWLR (pt 107) p.18 at p.27 Belgore J.S.C. observed:-
“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 the criminal culpability of the plaintiff must be honest, based on 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. (Harriman v Swith (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 & Sons Ltd (1915) 3 K.B. 527, 534; Dawson v Vansandace (1863) 11 W.R. 516″.
In Leibo v D. Burchman Ltd Anor (1952) 2 ALL E.R. 1057 at P.1064, it was observed:-
“The question whether there was reasonable or probable cause is not, I think, to be determined subjectively, as has been suggested. It is a question which objectively the court has to decide on the evidence before it”.
In the instant case, the appellant’s house was burgled by some unknown persons and some valuable properties removed from his house. He went to Malali Police Station, Kaduna and reported the incident. Exh 1, the proceedings from the Area Court shows that the appellant did not mention any name.
Mrs. Aigbogun’s contention is that the respondent was arraigned and prosecuted before Malali Area Court because the appellant specifically named the respondent and the offence was not compoundable by the Police and that the arrest, detention, arraignment and prosecution of the respondent was without reasonable and probable cause.
The learned trial Judge at P.41 of the records rightly observed:
“The evidence shows that the defendant was perfectly right to have lodged complaint at the Police Station because his house was broken into and his properties stolen therefore. Nobody can fault his action so far”.
It is surprising that after making such a finding that he stated as follows:-
“But the million question is this, can the defendant’s complaint be reasonable and probable when he told the Police that it was the plaintiff who should be arrested and detained?.
The Police has certain form and it is their tradition to fill in a column that the complainant reported against unknown person or persons whatever happened.
In this case, an investigator came out clearly and testified in court that it was the defendant who clearly and specifically pointed at the plaintiff as a suspect. In this case, the plaintiff resorted his injury to the defendant about five days and the incident of the burglary and the coach P.W.3 testified as an eye witness to what caused the wrist-injury and the Kaduna State Sport Council granted him some days off.
The prosecution of the plaintiff by the defendant under those circumstances could not have been reasonable. Going by the definition as propounded by Hawkins J. in Hicks v Faulkner (supra), the prosecution can never be reasonable and probable. I am satisfied that the prosecution was regrettably without reasonable and probable cause”.
In the first place P.W.3 who the trial court so relied on his evidence as unchallenged and uncontradicted did not say that it was the appellant who told the Police that the respondent should be arrested and detained.
Secondly it appears that the tort of malicious prosecution is being mixed up with that of false imprisonment which consists of the acts of arresting or imprisoning any person without lawful justification from exercising his right of leaving the place in which he is. It may also be committed by continuing a lawful imprisonment longer than is justifiable. See Richard Omokaro Iyalekhue v Osifo Omoregbe (1991) 3 NWLR (pt 177) p.94 at pp. 104 and 105.
Further if the learned trial Judge had rightly applied the test laid down in the decision in Hicks v Faulkner (supra) obviously he would have arrived at a different conclusion.
The test is, whether the appellant’s brief in criminal culpability of the respondent is honest, based upon full conviction, founded upon reasonable grounds in relation to a set of facts and circumstances if true would lead very reasonable person to believe that the respondent committed an offence.
It is a question which objectively the court has to decide on the evidence before it. p. w. 3 under cross examination stated:
“It is normal in the Police Station when a complaint is lodged the police do ask the complainant who and who does he suspect.
This is to enable us know where to start investigation. During the investigation we may discover that the names may be correct or not. The complainant’s complaint to Malali Police Station was in order”.
The appellant at p.23 of the record stated:-
“I was asked by the Police whether I have a night watchman. I told them that there was a company called Security Guard System whom I appointed to guard my house. From there the Police went to that company and started their investigation”.
The evidence before the court shows that it was not only the appellant that was arrested and charged. He was charged with three other employees of the security Company; it is in evidence that the appellant’s house was burgled by unknown persons or person on the 5th July, 1989 and that the incident took place only five days after the respondent had stopped guarding the appellant’s house.
All these do not show any lack of reasonable and probable cause on the part of the appellant. P.w3 has stated that the appellant’s complaint to Malaki Police Station was in order and the learned trial judge has also stated that “Nobody can fault his action so far”.
This case is very unlike the incident in Balogun v Amubikahun (supra) where the Supreme Court held that the reasonable and probable excuse to be relied upon by the appellant was punctuated by the fact that the witness gave evidence of how she was to implicate the respondent and that the plaintiff paid her N300.00 for this conspiracy.
I am therefore of the view that there is evidence that the appellant’s house was burgled and some valuable items stolen and as a result of which he lodged a report at Malali Police Station whereupon the appellant and three other employees of Security Guard System were arrested and charged and that the facts before the court show that the appellant’s belief in criminal culpability of the respondent was honest, based upon full conviction and that a reasonable man would have acted in a way that he did.
I am also of the view that the respondent failed to establish absence of reasonable and probable cause.
Issue No 2 is:
“Did the respondent establish MALICE which is one of the essential elements of the offence of malicious prosecution”.
At p.42 of the records, the learned trial judge found as follows:-
“The evidence of the plaintiff under cross examination that the defendant used to dash out some money to him and that they never quarrel previously does not assist the defendant’s case. The fact that the prosecution was devoid of reasonableness is tantamount to saying that the prosecution was malicious. There was no evidence to negate malice. The defendant has no reasonable and probable cause to prosecute the plaintiff the way and manner he did.
Knowing fully well that the plaintiff was indisposed to guard his house and another person Nuhu was doing the plaintiff’s duty. I hold that the plaintiff adduced sufficient evidence to prove and sustain his claim”.
It can be seen that the main reason that the learned trial Judge held that there was no evidence to negative malice was because the appellant knew fully well that the respondent was indisposed to guard his house and that another person Nuhu was doing the respondent’s duty. The fact that the respondent reported that he was indisposed and that another person was doing his job is not the basis to infer malice on the part of the appellant.
The term ‘Malice’ in this form of action is not to be considered in the sense of spite or hatred against an individual, but of malus animus, and as denoting that the party is actuated by improper and indirect motives. See Clerk and Lindsell on Torts, 15th Ed paras 18 – 43 page 877.
Malice can only be inferred from a total lack of belief in the mind of the appellant as to the guilt of the respondent which the respondent has failed to establish in this case.
In Balogun v Amubikahun (supra) at pp 27 and 28, Belgore, J.S.C. stated:-
“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”.
In the instant case, the respondent had admitted under cross examination that he never had any previous quarrel with the appellant and that in fact the appellant use to dash him money.
There is nothing to show that the appellant knew that he was making a false criminal allegation against the respondent and the other three people. The learned trial judge and P.W 3 said that what he did was in order., There is also nothing to show that the appellant’s motive was to harass and punish the respondent and that it was not a desire to secure ends of justice.
Mrs. Aigbogun had argued that while the appellant had a right to report the purported burglary and the theft to the Police that the appellant has no such right or duty to specifically name and point out the respondent as the person he suspected of committing the crime imputed and that that was actuated by the appellant’s desire committing the crime imputed and that that was actuated by the appellant’s desire to almost see somebody or anybody punished for purported burglary and theft not because he had any honest belief or any belief at all in the guilt of the respondent.
The appellant did not specifically point and name the respondent. It was the respondent and other 3 workers of the Security Company that were arrested and charged and the evidence before the court does not show that he had not an honest belief in the guilt of those four people and that he wanted to see them punished at all cost.
I am of the view that the respondent had failed to establish Malice on the part of the appellant.
In respect of Issue Nos 3 and 4, it will be more convenient to deal with them together and they read:-
ISSUE NO. 3 – Whether or not all the necessary ingredients of malicious prosecution have been established by the respondent entitling the trial court to award him N50000 damages.
ISSUE NO. 4 – Whether or not especially in view of the evidence of P.W.3 under cross examination the Police were not in law the prosecutors of the respondent in this matter?.
For the respondent to succeed in this case, he must also establish that he was prosecuted by the appellant, that is, that the law was set in motion against him on a criminal charge.
In Balogun V Amubikahu (supra) at p.30 Obaseki J.S.C. observed:
“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 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 for summons then his liability, if any, is for malicious prosecution”.
In the present case other than reporting the matter at the Police Station which the investigating Police Officer (I.P.O.) P.W. 3 and also the learned trial Judge found to be in order there is nothing to show that the appellant was instrumental to the matter being charged to court. P.w. 3 stated that a search was conducted and nothing was recovered and that “since the Police have no power to compound the case of theft we arraigned them to Malali Area Court”.
It can be seen that the reason that the respondent was charged to court was to show that there was a pressure on the part of the appellant that the respondent should be charged to court or that it was brought to the knowledge of the appellant that there was no evidence to support the charge against the respondent and that he mounted pressure on them and eventually saw that the respondent was charged to court.
It is in evidence that when the matter was taken to court that the appellant was not invited to give evidence and likewise P.W.3 with the result that the respondent was discharged.
The only thing that is shown in this case is only that the appellant made a report to the Police which has been found to be quite in order. if the appellant had strenuously and actively pursued the matter by mischievous lying or other dubious means to see that the respondent is charged to court, or even engaging a counsel to prosecute the matter, it can be said that he has set the law in motion.
What the appellant did is what any reasonable person that was placed in his position should do, it will be a bad law that if any person whose house is burgled into that reports that incident to the police will be made liable for malicious prosecution. As I had earlier observe, if a person simply makes a report to the police, a ministerial officer and the Police using their discretion decide to arrest, charge and prosecute the suspect, the person making the report, if liable for malicious prosecution on the ground that he set in motion a ministerial officer and not a judicial officer. I am therefore of the view that the appellant did not set the law in motion.
As to whether the matter ended in favour of the respondent, Mr. Ekhasemombe has submitted that the respondent was discharged under Sect 165 of the Criminal Procedure Code and that the said discharge does not act as an acquittal as the case has not been decided on its merit.
The prosecution terminating in the respondent’s favour does not mean that he has to be discharged on the merits. it suffices if he is discharged. In cleark and Lindsell on Torts 15th Ed Chap 18 pp 866-867 the learned author opined as follows:-
“The end, however, need not be a final and conclusive one. if a magistrate refuses to commit for trial a person charged before him the particular prosecution is concluded, although it may be lawful to institute a fresh prosecution for the same offence. So the refusal of examining justices to commit for trial is a dismissal of the charge within the costs in Criminal Cases Act 1952 and is the end of the proceedings……………….
Craig v Hassel shows that it is enough if the proceeding was brought to an end by consent of the plaintiff and on terms. So it is enough if the proceeding has been abandoned without being brought to a formal end, though this cannot often happen in a criminal prosecution”.
In the Law of Torts, by Harry Street 6th Ed p 397, the learned Author stated:
“The proceedings must have terminated in favour of the plaintiff. Even though the plaintiff has been convicted of a lesser offence, or had his conviction quashed on appeal, or has been acquitted on a technicality, e.g a defect in the indictment, this requirement is satisfied…………………….
The plaintiff seems to satisfy the present requirement if he proves that the defendant has discontinued the proceedings”.
It can be seen that the plaintiff’s discharge under Sect. 165 of Criminal procedure Code brings the proceedings to an end and in favour of the plaintiff even though that it may be lawful to institute a fresh prosecution for the same offence. The plaintiff has therefore satisfied the requirement that the proceedings terminated in his favour.
Apart from showing that the prosecution terminated in his favour, the respondent has woefully failed to establish all the other necessary ingredients of the tort of malicious prosecution to entitle him to judgment and an award of the sum of N50,000.00.
The law is very clear that all the four essential ingredients have to be proved and this the respondent has failed to do the appeal is therefore deemed to fail.
Issue No 5 reads:-
“Is the N50,000.00 damages awarded not excessive putting into consideration all the circumstances of this case?.
As I have already found, the respondent has failed to establish all the necessary ingredients of malicious prosecution to entitled him to an award of the sum of N50,000.00.
In view of this, Issue No 5 is being dealt with solely for academic purposes.
The attitude of the appellate court to award of damages by a trial court has been aptly stated in Chief F.R.A. Williams v Daily Times of Nigeria Ltd (19900 1 NWLR (Pt 124) p. 1 at pp 56 and 57 where Uwais J.S.C. observed:-
“..the defendant did not establish that the principle laid down for the award of damages by the trial court had been breached. It is only when there is a failure to follow the settled principles that an appellate court can properly interfere with the award of damages made by a trial court.
The principle which have been established by a legion of cases are:
The learned trial judge at p.43 stated;
“After taking everything into consideration including the social standing of the defendant, the natural consequences of malicious prosecution, the damages arising therefrom, the station in life of the plaintiff and his financial standing I think to award Fifty Thousand Naira would not be out of place”.
The appellant’s complaint is not that the learned trial Judge acted on a wrong principle of law or that the estimate of damages is erroneous and that no reasonable tribunal would have made such award. His complaint is that the amount is excessive but the law is that an appellate court will not disturb an award of damages merely because it would have come to a different figure if it had heard the case itself.
If the respondent had established a case of malicious prosecution, against the appellant, the sum of Fifty Thousand Naira would not have been deemed excessive. For the reasons given above, I am fully of the view that there is merit in the appeal.
I hereby allow the appeal and set aside the judgement of the learned trial Judge delivered on 24th April, 1992.
I dismiss the respondent’s claim with costs assessed and fixed at N1,000.00.
Cases referred to in the judgment:
Balogun v Amubikohun (1989) 3 NWLR (pt 107) 18
Iyalekhue v Omoregbe (1991) 3 NWLR (ptm177) 94
Williams v DTN Ltd (1990) 1 NWLR (pt 124) 56