Chief S. S. Ejikeme V. Basil Nwosu (2001)

LawGlobal-Hub Lead Judgment Report

OBADINA, J.C.A.

This is an appeal against the judgment of the High Court of Benue State sitting at Katsina-Ala, presided by EKO, J. delivered on the 11th July, 1994 in suit No. KHC/42/93. At the trial court, the respondent was the plaintiff, while the appellant was the defendant.

On the 23rd of September, 1992 at about 1.55 am, some unknown persons broke into the compound of the appellant and set ablaze his petrol tanker, Reg. No. GG 6666 WK. The fire was however put out. The following day the appellant reported the matter at Katsina-Ala Police Station. The police in the course of their investigation arrested the respondent on the 25th of September, 1992, detained him at the Police Station until 30th September, 1992, when he was arraigned before the Upper Area Court, Katsina-Ala on allegation of mischief by fire. On the 5th of July, 1993, the respondent was discharged following an advice from the State Ministry of Justice.

On the 19th of August, 1993, the respondent as plaintiff took out a writ of summons at Katsina-Ala High Court against the appellant and one Sergeant A.I. Abur claiming a total sum of (N500,000) Five hundred thousand Naira, aggravated damages for:

(a) Defamation;

(b) Malicious prosecution; and

(c) wrongful or unlawful detention.

The appellant filed a statement of defence against the action, denying the allegations. The case went into full trial and parties called their respective witnesses. In his reserved judgment, the learned trial Judge found the appellant liable of malicious prosecution and awarded (N35,000) thirty-five thousand naira damages.

Dissatisfied with the judgment, the appellant filed this appeal to this court on four (4) grounds of appeal. From the four (4) grounds of appeal, the appellant formulated three (3) issues for determination, namely:

“(1) Whether or not a case of malicious prosecution was made out to warrant the award of N35,000 against the appellant?.

(2) Whether or not malicious prosecution as a cause of action was raised in the writ of summons? and if the answer is in the negative, can the issue of malicious prosecution be raised in the statement of claim and amended statement of claim without an amendment of the writ?.

(3) Whether or not the sum of N35,000.00 damages was extremely very high?.”

From the same four grounds of appeal filed by the appellants the respondent formulated six (6) issues for determination. The issues are as follows:

“(1) Whether the appellant set in motion the law against the respondent by the appellant’s report to the police at Katsina-Ala Nigeria Police Station or whether appellant prosecuted the respondent?.

(2) Whether there was defamation of the respondent by the appellant’s report?.

(3) Whether prosecution ended in favour of the respondent?.

(4) Whether the report (prosecution) was without reasonable and probable cause?.

(5) Whether the respondent’s detention for six (6) days at a stretch by the Police based on the report by the appellant amounted to false imprisonment?.

(6) Whether N35,000 damages awarded in favour of the respondent was excessive?.”

At the hearing of the appeal on the 22nd of March, 2001, the learned counsel for appellant, Mr. G.O. Okafor (SAN) referred to the leave granted by the court on 15th January, 1997 to the respondent to amend his writ of summons and the amended statement of claim and the further amended statement of claim filed on the 21st January, 1997 and argued that ground 3 of the grounds of appeal and Issue No.2 formulated by the appellant had been over taken by events. He then abandoned ground 3 of the grounds of appeal and issue No.2 predicated on the ground with the argument profferred thereon.

A careful look at the issues formulated by the parties clearly shows that most of the issues formulated by the respondent were not based upon any of the grounds of appeal. The respondent did not file a cross-appeal, and most of the issues formulated by the respondent for determination were not predicated on any of the grounds of appeal filed by the appellant. Indeed most of the issues formulated by the respondent, especially, issues Nos. 2, 3, 4 and 5 are not in the least relevant to the determination of the appeal before the court.

The law is well settled that issues for the determination of an appeal must be formulated upon the grounds of appeal filed against the judgment on appeal. – See A.-G., Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646; Buraimoh v. Bamgbose (1989) 3 NWLR (Pt.109) 352.

In all the cases and others not mentioned here, it is manifest from their careful study that for an issue for determination of an appeal to be sustained, it must satisfy two conditions. These are:

(1) It must be formulated within the parameters of a ground of appeal and

(2) The ground of appeal must be against the judgment of the court against which the appeal is lodged.

These two conditions must be satisfied, otherwise the issue would be struck out as being incompetent. – See Biocon Agrochemical Nig. Ltd. & Ors. v. Kuku Holding (Nig.) Ltd & Ors. (2000) 15 NWLR (Pt.69 10 493; (2000) 82 LRCN, 3332 at 3349.

With the above principles in mind, I now turn to the instant appeal, where it is very clear that issues Nos. 2, 3, 4 and 5 formulated by the respondent are not predicated on any of the grounds of appeal against the judgment. I therefore think the said issues Nos. 2, 3, 4 and 5 are incompetent and are accordingly struck out.

A careful look at issue No.1 formulated by the appellant and issue No. 1 in the respondent’s brief shows that the issues are similar and the same in substance. They will the treated together, similarly issue No.3 raised by the appellant and issue No.6 formulated by the respondent are also similar and the same in substance. They will be treated together.

Issue No.1 formulated by the appellant reads as follows:

“Whether or not a case of malicious prosecution was made out to warrant the award of N35,000.00 against the appellant.”

Issue No.1 raised by the respondent also states as follows:

“Whether the appellant set in motion the law against the respondent by the appellant’s report to the Police at the Katsina-Ala Nigeria Police Station or whether appellant prosecuted the respondent?.”

Arguing the issue, the learned counsel for the appellant Mr. G.O. Okafor (SAN) submitted that the trial Judge erred in law when he awarded N35,000.00 to the respondent for malicious prosecution when the three essential elements of the tort were never proved. He referred to the case of Chief L. Oyelakin Balogun v. Alhaji Busari Amubikahun (1989) 3 NWLR (Pt. 107) 18 at 19 and 26 and submitted that for a plaintiff to succeed in an action for malicious prosecution, the plaintiff must plead and prove:

“(i) That he was prosecuted by the defendant, that is, the defendant set in motion against the plaintiff, the law leading to a criminal charge;

(ii) That as a result of the prosecution aforesaid, plaintiff was discharged and acquitted;

(iii) That the prosecution by the defendant was completely without reasonable and probable cause; and

(iv) That the prosecution was as a result of malice by the defendant against the plaintiff.

He referred to the amended statement of claim filed by the respondent at pages 13 and 14 of the record of appeal, and the evidence of the respondent (PW 1) at pages 29 and 30 of the record of appeal. He also referred to the evidence of the PW2, PW3 and PW5. He referred to the first information report, – Exhibit A, and the finding of the trial court that the 1st defendant/appellant caused the information on which the plaintiff/respondent was prosecuted, and submitted that the finding of the trial court was not borne out by evidence. He argued that the appellant merely made a report to the Police on the strength of which the Police in the exercise of their discretion commenced the prosecution. He said there was no evidence that the appellant insisted on the prosecution of the respondent. He stated that the prosecution was at the instance of the Police. He further argued that the plaintiff/respondent did not show by evidence that the complaint lodged by the appellant to the Police did not show reasonable and probable cause against the respondent. He submitted that there was no evidence of malice before the trial court. He argued that the issue of malice and reasonable and probable cause was never raised in the pleadings before the trial court and no issue was joined on it. He submitted that a case of malicious prosecution was not proved by the respondent against the appellant. He urged the court to allow the appeal.

In his own argument, the learned counsel for the respondent in his brief referred to Exhibit ‘A’ a record of proceedings, including the first information report. He also referred to the evidence of the respondent as plaintiff at the trial court. He again referred to the evidence of the PW3, who was the 2nd defendant at the trial court and submitted that the appellant made a report at the Katsina-Ala Police Station, that his, (the appellant’s) petrol tanker was set ablaze and that he, the appellant suspected the respondent as the person who set the tanker ablaze. He referred to the testimony of the appellant, wherein the appellant denied mentioning the name of anybody when he reported that his tanker was burnt, the learned counsel submitted that such evidence could not contradict, alter, add to or vary the contents of Exhibit A, a record of court’s proceedings. – Section 132 (1) of the Evidence Act. He submitted that Exhibit A. was conclusive proof of its contents. He urged the court to uphold the finding of the trial Judge that Exhibit ‘A’ is conclusive proof that the appellant by reporting to the police that he suspected the respondent as person who set tanker ablaze did set the law in motion against the respondent. He urged the court to uphold the decision of the trial court and dismiss the appeal.

The law is well settled that in an action for malicious prosecutions the plaintiff must plead and prove by credible evidence that he was prosecuted by the defendant. In that regard, it must he 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 aforesaid, the plaintiff was discharged and acquitted; in short that the prosecution was determined in the plaintiff’s 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, the plaintiff must show 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. See Chief Oyelakin Balogun v. Busari Amubikanhun (1989) 3 NWLR (Pt. 107) 18 at 26.

To prosecute, within the con of malicious prosecution, 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. To be liable for malicious prosecution the defendant 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. – See Balogun v. Amubikahun supra) at page 26.

In this case on appeal, who can we say set in motion the prosecution of the respondent? At the trial before the trial court, the respondent gave evidence as PW 1 inter-alia as follows:

“On 25/9/92, I was sitting in my shop at No. D7, Main Market, Katsina-Ala, the 2nd defendant came to my shop in plain clothes and asked if I was Basil Nwosu. I agreed. He told me that he was a Police officer attached to Nigeria Police Katsina-Ala and that on the same day, a case was reported against me by somebody at the Police Station. I asked to know what the case was. The 2nd defendant told me that I would know at the Police Station. I went with him to the Police Station. On getting there, the 2nd defendant took me to interrogation room and then told me that one Mr. S. S. Ejikeme reported a case at the Police Station on 24/9/92 that I, Basil Nwosu, burnt his vehicle, a petrol tanker, I denied. I made statement to the 2nd defendant and thereafter, he took me to the cell. He took me into the cell on 25/9/92, and I was released on bail in the court, Upper Area Court, Katsina-Ala on 30/9/92. Between 25/9/92 and 30/9/92 I requested for bail. The DPO said it was not necessary (sic) for my bail. The 2nd (sic) from the 2nd defendant, who was also the Investigating Police Officer (I.P.O) that day the IPO left and I did not see him. The following day, he took me to the DPO. When I saw the DPO, the 2nd defendant informed him that I had requested for bail and the DPO, then sent me back into the cell on 27/9/92, the DPO invited me from my cell into his office. After 30/9/92, I kept attending the court for five times. On the fifth occasion the legal advice was read in open court. On the strength of the advice I was discharged by the court.”

Under cross-examination, the respondent stated inter-alia as follows:

“I did not see 1st defendant when I got to the Police Station with 2nd defendant. When I asked for my bail, the DPO did not see the 1st defendant. When I was arraigned at the Upper Area Court, the 1st defendant appeared in the court. He said nothing in the court.”

The 2nd defendant, who was the Investigating Police Officer in the case gave evidence as PW3. His evidence is important. It runs inter-alia as follows:

“I am Sgt. Asongo Abur. I am attached to the Police Divisional Crime Branch, Katsina-Ala. I am an Investigator. I know the plaintiff and 1st defendant. On 25/9/92, I was on duty when the case of mischief by fire was reported by the 1st defendant and referred to me for investigation. DCO, Mr. C. Abutu advised me first to call the accused for brief interview with him. I brought the accused for the interview. After that, I was asked to go on with my investigation. In the course of my investigation, having taken all evidence from the witnesses, I discovered that the accused had no case of mischief by fire to answer. The plaintiff was the accused, after the finding, I recommended to my DCO that the plaintiff had no case to answer in respect of mischief by fire. He advised me that we had no power to compound the case and that I should arraign the plaintiff in court, and get the state counsel to advise on the case. I sent the duplicate case file to the D.P.P’s office for legal advice. I arraigned the plaintiff as directed. He was arraigned at the Upper Area Court on 30/9/92………..I arrested two people in connection with the allegation of mischief by fire i.e. the plaintiff and one Mr. Amaechi. The 1st defendant reported the plaintiff and one Mr. Amaechi that his tanker vehicle No. GG 6666 Wk was set ablaze in his residence by the mechanic village and that the named two people, were the people he suspected to have set the vehicle ablaze. The 1st defendant made the report at the Police Station himself. I followed the case to its conclusion. In the Upper Area Court, the plaintiff was discharged on the advice of the Ministry of Justice. In the course of investigation and prosecution of the plaintiff I was not acting for and on behalf of 1st defendant……… ”

Under cross-examination the witness further stated:

“I found during my investigation that 1st defendant’s tanker was set ablaze.”

The next very important evidence before the lower court was the evidence of PW5, Silas Haruna. He stated inter-alia as follows:

“1 am a resident state counsel. I had occasion to proffer legal opinion in Commissioner of Police v. Basil Nwosu and N. J. Amaechi to the Police. I remember the opinion held, I reviewed an earlier advice……..There was an earlier opinion from my office advising prosecution. That was during the tenure of Mr. A. U. Abah. He has now retired. I took over on 26/3/93. By then, the case was pending at the Upper Area Court Katsina- Ala for prosecution. After a closer scrutiny of the case diary I discovered that the evidence disclosed in the case diary was too remote to grant prosecution successfully. There was no evidence who saw the person suspected at the scene. The 1st defendant who was the complainant never mentioned the plaintiff as the person suspected to the Police in his statement to the Police. The 1st defendant, the complainant, merely told the Police in his complaint and statement he suspected the Amaechi group as the people who burnt his tanker because they had written to the 1st defendant that they were going to treat him according to their constitution. In the case diary, one Augustine Ogbu stated that he heard plaintiff in a beer parlour say that 1st defendant would see something and that when the tanker got burnt they suspected that it was plaintiff and Mr. Amaechi who did it. That was the piece of information on which plaintiff was arrested by the police. Information on the case diary clearly reveals that the tanker was on fire and the fire was put out. On this basis I revealed the advice and advised termination of prosecution.”

In his own evidence at the trial, the appellant as the 1st defendant admitted that he reported a case that his tanker was set ablaze to the Police. He however denied that he specifically told the police that the plaintiff/respondent was the person who set his tanker ablaze. His evidence runs as follows:

“I know the plaintiff and the 2nd defendant. On 23/9/92 at about 1.55 am, I was in my house sleeping. The house is at new site, Katsina-Ala. When I was sleeping I heard a shout. I got up. When I got up I saw my fuel tanker burning. I came out, took out fire extinguishers and started quenching the fire. We succeeded in putting out the fire. After that, we were wondering how the fire came to the tanker. We then saw a ladder on the fence. We went round the fence to a quava tree I and saw where the person came down at the back of the wall. In the morning, I went to the Police to report. I made the report at the counter at the Police Station. My report was in writing. I did not specifically tell the Police that the plaintiff was the person who set my tanker on fire. It is not true that I went about Katsina-Ala town telling people that the plaintiff was ( the person who set my tanker on fire.”

Under cross-examination, the appellant/1st defendant stated inter-alia:-

“I merely went to the Police and reported the incident in my house for the Police to investigate. I made statement to the 2nd defendant after my report at the counter. I was directed to him as the investigator from the court.”

From the evidence before the trial court, it is not in dispute that the appellant’s tanker was set on fire. The parties also agreed that the appellant reported the matter to the Police. There is also no dispute that the appellant made a statement in writing to the Police. It is true that the Police arrested the respondent and locked him up like any other criminal in their cell from 29/9/92 to 30/9/92. It is also evident that the Police charged the respondent before Upper Area Court.

The learned counsel for the respondent argued that the appellant reported to the Police that the respondent was the person who set the appellant’s tanker ablaze. He relied on Exhibit A, which included the first information report prepared by the Police, wherein it was alleged that the appellant stated that he suspected the respondent as the person who set fire on the appellant’s tanker. He argued that the first information report, having formed part of Exhibit ‘A’ a certified true copy of court proceedings, the contents therein could not be contradicted by oral evidence. The appellant gave evidence at the trial. He stated that he reported to the Police that his tanker was set ablaze. He stated that he made a statement to the Police in writing and that in the statement he did not mention the name of the respondent as the person who set his (the respondent’s) tanker ablaze. The PW5. i.e. the state counsel who gave the legal advice that the case should be discontinued, corroborated the evidence of the appellant that the appellant never mentioned in his statement to the Police the name of the respondent as the person who set the appellant’s tanker ablaze. The statement made by the appellant to the Police was not tendered in evidence. The first information report contained in Exhibit ‘A’ was not signed by the appellant. The PW3, that is the IPO who investigated the case, stated that after he has taken the statements from all the witnesses, he discovered that the respondent had no case of mischief by fire to answer and he recommended to the DCO that the plaintiff/respondent had no case to answer in respect of the allegation of mischief by fire.

The first information report included in Exhibit ‘A’ having not been signed by the appellant, the contents therein that the appellant mentioned the name of the respondent as the person who set his tanker ablaze, could not properly be credited to the appellant as his statement; moreso when the appellant denied mentioning the name of the respondent in his (the appellant’s) statement to the Police as the person who set his (the appellant’s) tanker ablaze; and when the state counsel who advised non-prosecution, PW5, stated that the appellant did not mention in his statement to the police that the respondent was the person who set the said tanker ablaze. The statement of the appellant to the Police wherein it was alleged that the 2nd appellant mentioned the name of the respondent as the person who set the tanker ablaze was not tendered by the plaintiff/respondent. The issue as to whether the appellant mentioned that he suspected the respondent in his statement to the Police can only be resolved by tendering the statement. The contents of the statement cannot properly be admitted in evidence without the statement being tendered and without showing the whereabout of the statement.

A close look of the totality of the evidence of the witnesses for the plaintiff at the trial court clearly shows the evidence led by the plaintiff/respondent’s witnesses namely, PW3 and PW5 are in conflict on the issue of whether the appellant stated in his statement to the Police that the respondent was the person who set the tanker in question ablaze. With that conflict, I cannot see how the appellant can properly be held to have set in motion the law leading to a criminal charge against the respondent. From the evidence before trial court, it seems to me the respondent did not show by evidence that the appellant prosecuted the respondent. In other words, there is no evidence that the appellant set in motion against the respondent, the law leading to the criminal charge against the respondent. To prove that the defendant set in motion against the plaintiff the law leading to a criminal charge, it must be shown by evidence that the defendant knew very well that the whole criminal complaint was a fabrication and the arrest, remand in Police custody and the subsequent; trial of the plaintiff/respondent was an unmitigated abuse of judicial process. See -Balogun v. Amubikahun (1989) (supra) at p. 26.

The basis of the case, that is, the allegation to the Police officer and the statement taken by the Police, cannot be relevant to the issue of reasonable and probable causes for the making of an allegation before the statements were taken. The reasonableness of the action of the defendant/appellant does not lie in Exhibit ‘A’ which was not in existence at the time the report was made. Merely reporting or giving information to the Police is not enough as evidence of setting in motion against the plaintiff, the law leading to a criminal charge. There must be evidence whereby an appeal is made by the defendant to some person with judicial authority in regard to the matter in question. There must be evidence that the defendant was actively instrumental in setting the law in motion See – Watters v. Pacific Delivery Services Ltd (1964) 42. DLR (2d) 661; Pandit Goya Parshad Tewari v. Sardar Bhagat Singh (1908) 24 T.L.R.884.

From the evidence before the trial court, it seems to me that the respondent did not show that he was prosecuted by the appellant.

The second element that a plaintiff in a case of malicious prosecution must prove, is that the prosecution was determined in the plaintiff s favour.

The respondent was charged before an Upper Area Court. The prosecution was discontinued on the advice of the PW5, a state counsel, who advised non-prosecution, and the first information report (FIR) was terminated and the respondent discharged. In other words, the prosecution ended in favour of the respondent. This is not in dispute.

In a case of malicious prosecution, the plaintiff must plead and prove inter-alia, that the prosecution by the defendant was completely without reasonable and probable cause. In this case, the respondent has not been able to show by evidence that the report made by the appellant to the police was made without reasonable and probable cause. There is evidence from both the appellant and the respondent that the petrol tanker of the appellant was in truth and infact set ablaze. It cannot properly be said that the prosecution by the appellant was completely without reasonable and probable cause. 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 an 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 the circumstances must lead a prudent man to the conclusion that the plaintiff is probably guilty of the offence he is accused of committing. See 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 – See Bradshaw v. Waterlow and Sons Ltd (1915) 3 KB. 527 at 534; Dawson v. Vansandan (1863) II WR 516.

In the present case the petrol tanker of the appellant was set ablaze at about 1.55am. He reported to the Police that his tanker was set on fire. The Police investigated and found that in truth and in fact the said petrol tanker was set ablaze. The appellant did not know who set the tanker ablaze and did not mention the respondent. The question arises: Must he just sit down at home without reporting to the Police? No, I think not. In the circumstances, I am of the view that the plaintiff/respondent could not prove that the prosecution by the appellant in this case was completely without reasonable and probable cause.

To sustain an action of malicious prosecution, the plaintiff must prove by evidence that the prosecution was as a result of malice by the defendant against the plaintiff. There must be evidence of malice against the defendant/appellant.

In this case, the only semblance of evidence of malice is the averment in the first information report where it was alleged that the appellant stated that he suspected one Basil Nwosu who had been nursing some grudges against him and that he would see that he dealt with the appellant.

The PW5 i.e. the state counsel that went through the statements of witnesses and advised non-prosecution of the case stated in evidence that the appellant never mentioned in his statement to the Police, the name of the respondent as the person suspected. He said the appellant merely told the Police in his complaint and statement that he suspected the Amaechi group as people who burnt his tanker because they had written to the appellant that they were going to treat him according to their constitution. The PW5 also went further to say that only one Augustine Ogbu stated that he heard the respondent in a beer parlour say that the appellant would see something and that when the tanker got burnt they suspected that it was the plaintiff and Amaechi who did it.

From the evidence, the appellant did not even think of or talk about the respondent as the person who could have set the tanker ablaze. There is no evidence to show that the appellant was actuated with malice when he reported the matter to the Police or when he made a statement to the Police; merely making statement to the Police is no proof of malice. To be liable for malicious prosecution, the defendant/appellant would have done more than merely reporting the incident to the Police; for example if after the completion of investigation, he was told by the Police that there was no case, and he insisted that the Police must charge the respondent to court; or if the fact contained in the appellant’s statement to the Police that someone has set his tanker ablaze are false to the knowledge of the appellant, or if he misled the Police by bringing stubborned witnesses to support his allegation; or if he influenced the Police to assist him in sending the respondent to trial, he would not escape liability for malicious prosecution. Balogun v. Amubikahun (1989) (supra) at page 33; Bhagatsingh & Ors. v. Pandit Tewari. (1908) 24 LTR 884.

In the present case, there is no evidence that the appellant did anything more than merely reporting the incident to the Police. In my view all these matters mentioned above would follow in a report to the Police which he, the complainant knew was false. In the instant case, there is no evidence to show that the appellant did more than merely lodging a report to the Police that his tanker was set ablaze.

From the evidence before the trial court, it seems to me it was the Police that prosecuted the respondent. The PW3, i.e the Investigating Police officer in charge of the case, gave evidence inter-alia, as follows:

“In the cause (sic) of my investigation, having taken all the evidence from all the witnesses. I discovered that the accused had no case of mischief by fire to answer. The plaintiff was the accused. After that finding, I recommended to my DCO that the plaintiff had no case to answer in respect of mischief by fire. He advised me that we had no power to compound the case and that I should arraign the plaintiff in court and get the state counsel to advise on the case. I sent the duplicate case file to the DPP’s office for legal advice. I arraigned the accused (plaintiff) as directed. He was arraigned at the Upper Area Court on 30/9/92.” .

In view of the foregoings, it is my view that the appellant was not the prosecutor of the respondent in the criminal charge of mischief by fire before the Upper Area Court in respect of the fuel tanker of the appellant. There is no evidence that the appellant did more than merely reporting the incident to the Police, which is his right as a citizen. The Police investigated and after the investigation, the Police knew that there was no case against the respondent and still went ahead to charge him before the Upper Area Court for trial. There is no evidence that the appellant influenced the Police in any way to charge the respondent to court in respect of the said tanker. On the evidence before the trial court, I am of the view that there was no sufficient evidence before the trial court to sustain a claim of malicious prosecution. Issue No.1 is therefore resolved in favour of the appellant.

The appellant having abandoned issue No.2 at the hearing of the appeal, I will now go into consideration of issue No.3. Issue No.3 reads as follows:

“Whether or not the sum of N35,000 damages was extremely very high?.”

This issue is similar and the same with issue 6 raised in the respondent’s brief of argument. I will therefore treat the two issues together.

In arguing the issue, the learned counsel for the appellant Mr. G. O. Okafor (SAN) submitted that the award of N35,000 (thirty five thousand naira) against the appellant was extremely very high. He referred to page 56 of the record of appeal and argued that in arriving at the figure of (N35.000) the learned trial Judge had recourse to the issue of defamation and false imprisonment. He said the learned trial Judge did not find either defamation or false imprisonment proved, hence he did not make any award for the cause of action; but in making the award of (N35.000) he relied on the issue of defamation and false imprisonment. He referred to the statement of the learned trial Judge at pages 54 and 55 of the record of appeal where the learned trial Judge stated inter-alia as follows:

“Defamation is not totally extrinsic to a cause of action founded on malicious prosecution. In a complaint of malicious prosecution the plaintiff alleges that by the perversion of the criminal process the defendant has interfered with his liberty and damaged his fair name.”

At page 55 the learned Judge said:

“The damage to fair name by the baseless allegation is extension of the law of defamation which damnifies the defendant and renders him liable per se for publishing false information imputing a commission of a crime.”

The learned Senior Advocate of Nigeria referred to paragraphs 15 and 16 of the amended statement of claim and to the evidence of the respondent as plaintiff (PW 1) at pages 28 to 30 of the record of appeal and submitted that the respondent did not give any evidence in support of the averments in paragraphs 15 and 16 of the amended statement of claim. He submitted that there was no evidence in proof of a case of defamation before the trial court. He argued that paragraphs 15 and 16 of the amended statement of claim were deemed to have been abandoned.

On the issue of damages, the learned counsel for the respondent submitted that the learned trial Judge applied the correct principles governing the award of damages in this court. He argued that the learned trial Judge found that the conduct of the defendant/appellant in the circumstances of the case was not only reckless, it amounted to abdication of responsibility and to malice. He urged the court to affirm the award of N35,000 made by the lower court.

The main complaint of the appellant about the award of N35,000.00 is that apart from being extremely very high, the award was based on the issue of defamation which was not proved before the court. Paragraphs 15 and 16 of the amended statement of claim allege that a false report was made to the Police as a result of which publication, the plaintiff/respondent was brought into hatred and ridicule and suffered economically when he was detained. In other words, the plaintiff/respondent is by paragraphs 15 and 16 of the amended statement of claiming for defamation.

The law is well settled that it is a mandatory rule of pleading in defamation action that the plaintiff must set out the alleged words complained as defamatory of him. – See Collins v. Jones (1955) 1 Q.B. 564 as applied in Chief S.O. Okafor v. D.O. Ikeanyi & 3 Ors. (1979) 3-4 SC. 99.

In the instant case, the respondent as plaintiff at the lower court alleged in paragraph 15 of the amended statement of claim that a false report was made to the Police about the plaintiff/respondent and was published by the defendant/appellant to the public.

That being so, the principle in Collins v. Jones (supra) and Okafor v. Ikeanyi & Ors. (supra) enjoins the plaintiff/appellant to set out the alleged words complained as defamatory.

In Chief S.O.N Okafor v. D.O. Ikeanyi & 3 Ors. (1979) 3-4. SC. 99, at 103-104, the Supreme Court, Per Bello,(J.S.C as he then was) stated as follows:

“It has always been the law in England that in an action of libel the precise words of the document are material within the meaning of the rule regulating the content of pleading in that country and it has always been the practice to set out verbatim the words complained of in the statement of claim: 24 Halsbury’s Laws of England, 3rd Ed. page 90 para. 161 and Collins v. Jones (1955) 1 Q.B. 564 C.A. In a recent case, the Court of Appeal in England has stated that where a libel arises out of long article in a newspaper, the plaintiff must set forth in his statement of claim the particular passages which he complains of, and if he complains of the whole publication, then the whole publication must be set forth in the statement of claim: D.D.S.A. Pharmaceuticals Ltd v. Times Newspapers Ltd. (1973) I Q.B. 21 CA…………In an action of libel, a plaintiff must of necessity rely on the precise words alleged to be a libel for it is upon the perusal of the actual words complained of that the court may determine whether or not the words convey defamatory meaning. That being the case, the words complained of are essential for the prosecution of the plaintiff’s case and are therefore material facts which must be pleaded in accordance with the provision of Order XXXIII rule 5. We hold therefore, that it is not a sufficient compliance with the rule, by a plaintiff, to set out in his statement of claim the name of the newspapers, its date and the heading of the alleged libellous publication contained in the said newspaper without setting out the full of the publication. In addition to the identity of the newspaper containing the publication, the full of the publication or any part complained thereof must be set forth verbatim in the pleading.”

A look at the totality of the amended statement of claim filed by the plaintiff/respondent before the trial court clearly shows that the words complained of by the plaintiff/respondent as being defamatory of him were not specifically set out in the pleading. That being the case, there was no material upon which the court could, as a Judge find whether the words complained of were capable of bearing defamatory meaning, and as a jury, decide whether the words in fact, are defamatory of the plaintiff/respondent. Again, throughout the whole judgment of the learned trial Judge, there is no paragraph or line where the learned trial Judge found that the words complained of were capable of bearing defamatory meaning or that they were in fact defamatory of the plaintiff/respondent. Indeed, there is no evidence profferred in proof of paragraphs 15 and 16 of the amended statement of claim. In short, there is no evidence of defamation of the plaintiff/respondent before the learned trial Judge and the learned Judge did not in any where in his judgment found the appellant liable of defamation. In that regard, I think the learned trial Judge was absolutely wrong in taking the issue of defamation of the plaintiff/respondent by the appellant in respect of which there was no finding into consideration in the award of damages for malicious prosecution. Indeed, the award of damages by the trial court in this case was based on a wrong principle of law.

In the final analysis, the appeal is full of merit and should be allowed. I therefore allow the appeal. The judgment of the lower court delivered by Eko, J. on the 11th of July, 1994 in suit No. KHC/42/93, is hereby set aside; and the said suit before the trial Judge is accordingly dismissed. The respondent shall pay (N5,000) Five thousand naira costs to the appellant as the costs of the appeal.

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Other Citations: 2001)LCN/0987(CA)