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3RD MARCH, 1958.

SUIT NO. FSC 58/1957

3PLR/1958/62 (FSC)


[1958] NSCC 25










  1. EDO UKE



  1. E.U. UDOMA for Appellant.

H.A. LARDNER for Respondents



TORT AND PERSONAL INJURY LAW: Tort – Claim of Damages for Malicious – How proved – Meaning of reasonable and probable cause – distinction between honesty of belief and honesty of motive – effect of distinction thereof



This is an appeal from a decision of the High Court of the Western Region of Nigeria in the Ward Judicial Division dismissing the plaintiff/appellant’s action for damages for malicious prosecution.


It is settled law that to succeed in an action for malicious prosecution the plaintiff must prove four things, namely:

  1. that he was prosecuted by the defendant;
  2. that the prosecution was determined in his favour;
  3. that it was without reasonable and probable cause; and 4. that it was malicious.


In the present case the learned trial Judge found the 1st, 2nd and 4th of these elements proved, but not the 3rd and the real question in this appeal is whether he was right in his decision that the plaintiff/appellant had failed to prove that the prosecution was instituted without reasonable and probable cause.


In Herniman v. Smith (1) the House of Lords approved the following definition of reasonable and probable cause by Hawkins, J. in Hicks v. Faulkner (2):

“An honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a set 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 order, therefore, to determine the question of reasonable and probable cause it is necessary first to find out what were the facts as known to the defendant at the time of making the charge and then to decide whether those facts constitute reasonable and probable cause. The legal position being as I have stated, it becomes necessary in the present case to set out and examine the circumstances which led to the charge. I shall endeavour to do so as briefly as possible and as accurately as the evidence permits.


There is in the Western Urhobo Division of the Delta Province of the Western Region of Nigeria a people belonging to a clan known as Agbon which consists of six villages, namely, Okpara, Kokori, Ova, Eku, Orkokpor and Igun. In 1953 the clan of Agbon decided to elect a supreme chief called Ovie. Apparently differences arose as from which village he should be elected. It is not, however, necessary to examine those differences in any detail except to say that the Okpara people to which the defendants/respondents belong claimed the right of their village to do the selection but they did not put their claim into execution, while the Kokori proceeded to select the plaintiff/appellant who belonged to their village and to fix a date for his coronation which originally was 213th August, 1954. The people of Okpara were infuriated by this act and so angry with the people of Kokori that they even threatened to secede from the clan ff it was proceeded with. They decided to stop the crowning of the Plaintiff/appellant as Ovie at all costs. With that end in view meetings were held to decide on the action to be taken as result of which four persons from Okpara were instructed to, and did in fact, lay a complaint on oath (Exhibit “H”) before a Magistrate wherein they sought to have the plaintiff/appellant and three other persons from his village bound over to keep the peace on the ground that any meeting held to crown the plaintiff/appellant as Ovie would be likely to result in a breach of the peace.


Be it noted that the defendants/respondents were not among the four complainants. Nevertheless they belong to the same village and it is fair to assume that they knew of, and were in full agreement with the action that had been taken. As a result of the complaint the plaintiff/appellant and his co-accused were summoned to appear before a Magistrate on the very day fixed for the coronation, namely, 28th August, 1954. The coronation had perforce to be postponed, but the plaintiff/appellant and his co-accused whose anger had also been aroused retaliated by similarly lodging a complaint on oath (Exhibit “G”) before the same Magistrate in which they too sought to have the four complainants bound over to keep the peace on the ground that ’there is a greater likelihood of the complainants creating a breach of the peace and sabotaging the coronation programme of the Agbon clans…………” I pause here to point out that it is a legitimate inference to draw from the affidavits, Exhibits “G” and “H”, and from the evidence led in the case that both sides were alleging that the holding of a meeting to instal the plaintiff/appellant as Ovie was likely to result in a breach of the peace.


The proceedings before the Magistrate commenced on the 28th August, 1954, and on that day he bound over both sides “to keep the peace pending the completion of this inquiry”, which he then proceeded to adjourn to 9th September, 1954. It was subsequently further adjourned from time to time until finally to 9th November, 1954; the Magistrate recording in making the last order for adjournment “security to keep the peace remains in force and to be strictly adhered to and conduct likely to cause breach of the peace to be avoided”.


Notwithstanding the pendency of the inquiry the Kokori people made preparations to crown the plaintiff/appellant as Ovie on 24th September, 1954, and on the previous day the plaintiff/appellant called at the Police Station at Ward and there informed A.S.P. Nugent that the proposed ceremony would take place on the following day. According to that Police Officer he also said that “he wanted police in order to ward off any possible attack by the villagers of Okpara”. Moreover, from the interview Mr Nugent understood that the plaintiff/appellant was apprehensive lest his installation would provoke his opponents to attack him. Accordingly on the 24th September Mr Nugent with a half unit of Police travelled from Ward to Isiokolo where the installation of the Ovie was to take place. He stopped at the village of Okpara on his way and a crowd of villagers gathered round him. They informed him that they were on their way to his Police Station to report that the plaintiff/appellant was to be installed on that day and to ask the Police to prevent the ceremony from taking place because the Magistrate had ordered that it should not. Mr Nugent replied that he was unaware of any such order by the Magistrate and was unable to accede to their request. He carried on with his men and later watched the ceremony from a distance. According to him some 3,000 people attended the ceremony which went off without any trouble or disturbance. It would appear that the people of Okpara village had decided at the last moment not to attend the ceremony in force, but to send instead two persons, namely the present defendants/respondents, to witness it and report to the village if the Ovie had really been crowned, which they did. After hearing the report of the two men the Okpara people decided to take action against the plaintiff/appellant and they sent the defendants/respondents to Ward for the purpose and to cause the arrest of the plaintiff/appellant and his associates. In pursuance of their instructions the defendants/ respondents lodged a complaint before the Magistrate as a result of which the plaintiff/appellant and four of his associates were summoned before the Magistrate’s Court and charged with the following two offences:

“1st Count: That you all, Josiah Sunday Ogie, Chief Johnson J. Okene, Chief D.E. Sohwo, T. Onokparna, J. Ogbe Urevbu and Esejuvbevbo on the 24th day of September, 1954 at Isiokolo Village in the Ward Magisterial District did in a public place to wit: Isiokolo Village, conduct yourselves in a manner likely to cause breach of the peace, and thereby committed an offence punishable under section 249 (4) of the Criminal Code.

2nd Count: That you all, Josiah Sunday Ogie, Johnson J. Okene, D.E. Sohwo, T. Onakpoma, J. Ogbe Urevbu and Esejuvbevbo, on the 24th of September, 1954 at Isiokolo village in the Ward Magisterial District while Judicial proceedings were pending in court in Suit No. MW/1198c/54 to wit an enquiry into why the supporters of a Coronation Ceremony of an Ovie of Agbon Clan should not be bound over to keep peace as the Coronation was calculated to create a breach of peace, did take part in the crowning of Josiah Sunday Ogie as Ovie of Agbon Clan and thereby committed an offence contrary to section 133 (9) of the Criminal Code.


The second charge was not proceeded with, but the accused were tried on the first charge and convicted. On appeal to the High Court, however, the convictions were quashed, whereupon the defendants/respondents appealed unsuccessfully to the West African Court of Appeal and were also unsuccessful in their attempt to appeal to the Privy Council, their application for leave to appeal to that Court being refused.


It is in these circumstances that the plaintiff/appellant instituted these proceedings in which he claimed substantial damages against the defendants/respondents for malicious prosecution with the result that I have already indicated. He appeals to this Court on a number of grounds, the principal of which is ground 1 of the Additional Grounds of Appeal which the plaintiff/appellant was given leave to file. It reads:

‘The learned trial Judge was wrong in law in holding that the plaintiff had failed to prove the absence of reasonable and probable cause having regard to the evidence”.


Dr. Udoma’s argument on this ground may be summarised thus. Once malice is established, he says, very little evidence is required to establish absence of reasonable and probable causes and since the evidence here shows conclusively that the defendants/respondents were prompted, not by a desire to serve the ends of justice, but by spite and by the avowed determination to prevent, at all costs, the plaintiff/appellant from being crowned and even possibly to “uncrown” him after the event, there could not be any reasonable and probable cause for the charge. He also submitted that the Court ought to draw inferences unfavourable to the defendants/respondents from their subsequent conduct in persisting in the prosecution by appealing against the order of acquittal in the High Court and seeking to appeal against the judgment of the West African Court of Appeal.


The motive for the prosecution and the other matters referred to by Dr. Udoma dearly go to show malice which indeed the learned trial Judge found proved. They do not, in my view, establish want of reasonable and probable cause. As was said in Johnstone v. Sutton (3) at page 545: “From the most express malice want of probable cause cannot be implied.” His further submission that the fact that the prosecution was actuated by malice and instituted with the object of preventing the plaintiff/appellant from being Ovie showed conclusively that the prosecutors did not believe in the guilt of the plaintiff/appellant, I am unable to accept. While I am inclined to the view that generally speaking absence of honest belief in the guilt of the accused would go a long way to establishing want of reasonable and probable cause, honesty of belief must not be confused with honesty of motive. As Denning, L.J. said in Tempest v. Snowdon (4) at page 140: “Even though a prosecutor be actuated by the most express malice, nevertheless he is not liable so long as there was reasonable and probable cause for the prosecution”. The legal position is, in my view, accurately put in Clerk and Lindsell on Torts 11th Edition at page 868: “From lack of honest belief it may be well inferred that there is lack of all honest motive; but it by no means follows that the converse inference may be made”.


Applying these principles and the definition of reasonable and probable cause quoted earlier to the facts which I have set out it seems to me that there is nothing to show that notwithstanding their ulterior purpose the defendants/respondents did not genuinely believe in the guilt of the plaintiff/appellant nor that It was not reasonable for them to have such belief. On the contrary, there are indications that they probably did and had good reason so to believe. It will be recalled that both sides expressed the view on oath that if a meeting were held for the purpose of crowning the plaintiff/appellant a breach of the peace would ensure, and it is not unreasonable in the face of these assertions to assume that the Magistrate’s interim order to keep the peace was designed to prevent any such meeting and that the parties so understood it. Moreover, the plaintiff himself must have feared a breach of the peace at his installation on 24th September, since he went to the trouble of informing the Police and seeking their help. In these circumstances there cannot, I think, be much doubt that had the defendants/ respondents not refrained from attending the installation ceremony, breaches of the peace would in all probability have occurred. The learned trial Judge with all these matters before him concluded that the defendants/respondents had reasonable and probable cause. In my view he was right in so holding.


The conclusion which I have reached on this ground of appeal is sufficient to dispose of this appeal, but in case the matter should be taken elsewhere I propose briefly to deal with the other grounds of appeal. Ground 2 of the original Grounds of Appeal reads:

“2.     That the learned Judge erred in Law in holding that the defendants when they instituted criminal prosecution against the plaintiff, in the Magistrate’s Court, and Supreme Court, Ward, and later in the West African Court of Appeal and when they applied without success for leave to appeal to the Judicial Committee of the Privy Council against the judgment of the West African Court of Appeal had reasonable and probable cause for bringing the said criminal prosecution against the plaintiff”.


The contention here is that even though the defendants/respondents had reasonable and probable cause for instituting the prosecution they had no reasonable and probable cause for appealing against the plaintiff/appellant’s acquittal, nor in seeking to further appeal against the judgment of the West African Court of Appeal, that each step was in effect a separate prosecution and that consequently there was no reasonable and probable cause for these “subsequent” prosecutions. In my view this argument is fallacious. It is the setting the criminal law in motion and the malicious preferring of an unreasonable criminal charge which are the foundations of the action for malicious prosecution. Once it is found that there was reasonable and probable cause for the original prosecution, the persistence of the defendant in appealing may be strong evidence of malice, but it cannot adversely affect the reasonableness of the original prosecution.


Ground 2 of the Additional Grounds of Appeal was abandoned.


Ground 3 complains of misdirection in the following passages from the judgment:


“1.     On a consideration of the evidence before me, I find that the defendants in prosecuting the plaintiff, honestly believed that his actions complained of were in breach of the recognisance into which he had entered to keep the peace during the enquiry by the magistrate.


  1. That the only possible cause of a breach of the peace which all the parties had in mind was the installation of the plaintiff as Ovie of Agbon”.


The argument in respect of both passages is that since the defendants/respondents did not give evidence the learned trial Judge had no material before him upon which he could properly make those findings. This argument is not, in my view, sustainable. The learned trial Judge had before him the affidavits, Exhibits “G” and “H” he also had the evidence led by the plaintiff and it seems to me that there was before him ample material on which to make those findings.


The last ground of appeal is ground a of the Additional Grounds which reads:

“Wrongful admission of inadmissible evidence:

  1. The evidence of binding over which was made without jurisdiction.


  1. Exhibit “G” tendered by the defence”.


As it was the plaintiff himself who gave evidence of the binding over without objection on either side, I fail to see how he can now complain about the admission of that evidence. In my case it was most relevant since a true picture of the incident could not be had without it. That the binding over order was made without jurisdiction is not, in my view, material in these proceedings. As regards Exhibit “G”, this document was put to the plaintiff in the course of his cross-examination and he agreed that whatever he said in it was true. It was accordingly admissible as evidence in the case. In the result I would dismiss this appeal with costs assessed at £63-0s-Od.


ABBOTT, F.J. I concur.


COUSSEY, Ag. F.J. I concur.


Appeal dismissed.


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