M.I. Nigeria Limited V. Awongo Odibo Harry (2009)

LawGlobal-Hub Lead Judgment Report

MOHAMMED LAWAL GARBA, J.C.A.

By a writ of summons dated and issued on the 12/8/2000 in the Registry of the Rivers State High Court [hereinafter court below], the Respondent as Plaintiff, claimed against the Appellant as Respondent, as follows:

(1) The sum of N100,000.00 as aggravated damages for malicious prosecution,

(2) The sum of N10,000.00 per day as special damages from 16th November, 1999 until judgment.

At the end of trial, the court below found for the Respondent and entered judgment on 25/11/2004 in his favour in the following terms: –

(1) An order that the defendant pays to the plaintiff the sum of N10,000.00 [Ten thousand Naira], per day as special damages for loss of business of car hiring from the 16th November, 1999 until the day that judgment is delivered.

(2) An order that the defendant pays to the plaintiff the sum of N180,000.00 [Eighty Thousand Naira] as aggravated damages for malicious prosecution.

This appeal is against the above decision with which the Appellant was dissatisfied and apparently aggrieved because the Notice of Action was filed the day following the judgment, i.e. the 26/11/2004.

Brief of argument were filed by learned counsel for the parties as required by the Rules and practice of the court. The Appellant’s brief was filed on 7/1/2005 while the Respondent brief filed on 25/9/2006 was deemed on the 16/10/2006. From the six [6] goods of appeal contained on the Appellants, Notice of Appeal, learned senior counsel for the Appellant distilled the following two [2] issues which he submitted call for determination in the appeal:

2.02 Whether, on the available evidence produced before the court, a case of malicious prosecution of the respondent was made out against the appellant to support the judgment of the Trial Court.

2.03 Whether, on the state of the pleadings and evidence, the award of special damages made by the learned trial Judge against the appellant is sustainable.

Issue 2.02 was stated by the learned senior counsel to be covered by grounds 1 – 4 of the grounds of appeal and issue 2.03 covered by ground 5 of the said grounds.

The learned counsel for the Respondent at paragraph 3.4 on page 3 of the Respondents’ brief adopted the above issues as formulated.

In his submissions on the first issue, the learned senior counsel after a summary of each side of the case presented at the court below as contained in the printed record of appeal as well as the conclusion of that court at page 74 of the record, said that the opinion and conclusion are erroneous and contrary to law. He said that there are five [5] elements prescribed by judicial authorities that must be exist before a claim for malicious prosecution can succeed against a defendant. They are –

1. That the defendant lodged a report to the Police against the plaintiff, knowing same to be false and without any foundation and thereafter actively aided the police to effect his arrest and detention.
2. Plaintiff must show that he was prosecuted by the defendant, not just in the sense of setting tile law in motion against the plaintiff, which led to a criminal charge but that the defendant was actively instrumental in the application to the relevant judicial authority.
3. That as a result of the prosecution, the plaintiff was discharged and acquitted.
4. That the prosecution by the defendant was completely I without reasonable and probable cause, and
5. The prosecution was as a result of malice by the defendant against the plaintiff.

The following authorities were relied on.

a. DAVIDSON v. CHIEF CONSTABLE OF NORTH WALES & ANOR. (1994) ALL ER 567 PAGE 600 A – J and also at page 604-605

b. MARTIN v. WATSON (1994) 2 ALL ER 606 at 616e, 624g – 625.

c. MANDILAS & KARABERIS LTD. V. APENA (1969) NMLR 200.

d. BALOGUN v. AMUBIKAHUN 1989 3 NWLR (PT.107) PAGE 18 at page 26 A -C,

e. CLERK & LINDSELL ON TORTS 17TH Edition. Page 741 paras. 15- 05

In addition, after reference to the definitions of the words “Discharge” and “Acquittal” at pages 417 and 23 respectively of the 5th Edition of the Black’s Law Dictionary, it was submitted by him that an accused person may be set free on technical ground without considering the issue of his innocence or guilt, that while a discharge has the effect of liberation on technical ground, an acquittal can only be entered after a finding that the accused is not guilty in the determination of the charge against him. Further that it was after an acquittal among other grounds that an accused person may properly bring an action for malicious prosecution against a defendant. The statement of Tobi JCA [now JSC] in the case of OJO v. OKITIPUPA OIL PALM PLC (01) FWLR (70) 1487 @ 1505 paragraphs G – H was cited on the submission. It was also the contention of the learned senior counsel that an accused person who was merely discharged could be further arrested and duly prosecuted in respect of that particular case wherein, he was discharged, but that a person acquitted of a crime cannot subsequently be tried in respect of the same offence or charge. That the discharge of the Respondent at the Magistrate Court did not amount to an acquittal since the court did not hear the case on the merit due to the absence of prosecution evidence.

According to the learned senior counsel the court below ignored the fact that the Appellants’ only active part in the case was that it reported the Respondent to the police, who decided to arrest, detain and prosecute him. That the Respondent did not receive any witness summons to appear at the trial. Pages 36 – 40 of the record of appeal were referred to and it was argued that none of the five elements set out above for the tort of malicious prosecution was established by the Respondent who had the burden of proof.

Page 77 of the record of the appeal was referred to and it was submitted that the court below did not advert to the powers of the police as contained in particularly in sections 23, 24, 25, 26, 28 and 29 of the Police Act, Cap 19 LFN, 1990 under which the police has powers to arrest, detain, search and prosecute offenders. Furthermore, that mere report of someone to the police cannot qualify as malicious prosecution and that a claim for the tort will fail if actual prosecution of plaintiff was undertaken by the police on a mere report to them by a defendant. The case of UBAJOR v. OGUWBUREGUI (61) ALL NLR 882, MARTIN v. WAJSOW [supra] and MANDILAS & KARABERIES v. APENDA [supra] were relied on as authorities for the submissions. According to the senior counsel, the evidence on record showed that the decision to arrest, detain and initiate prosecution of the Respondent was taken by the police and so the award of N80, 000.00 as damages for malicious prosecution against the Appellant was without any basis. In addition, that apart from the respondents’ claim for aggravated damages, no evidence of any damages was led by the Respondent and in awarding general damages care must be taken to avoid an award of compensation for special damages which the plaintiff failed to prove. KALU v. MUBUKO (88) NWLR (80) 86, W.A.SHIPPING AGENCY NIG LTD v. KALLA (78) 3 SC 21 @ 32 and ODUMOSU v ACB LTD (76) 11 @ 55 were cited and it was submitted in conclusion that the issue should be answered in the negative. On his part, learned counsel for the Respondent made reference to the case presented at the court below as well as the evidence adduced by the parties and he submitted that the Respondent had fulfilled the Conditions for the successful claim of malicious prosecution which he said were

(i) That he was prosecuted by the appellant, that, the appellant set in motion against him, the law leading to a criminal charge.

(ii) That as a result of the prosecution aforementioned, he was discharged.

(iii) That his prosecution by the Appellant was completely without reasonable and probable cause and

(iv) That the prosecution was as a. result of malice by the Appellant.

The case of BALOGUN v. AMUBIKAHUN (89) 3 NWLR (10) 18 @ 32 paragraphs B – C was cited and set out for the position. It was the submission of learned counsel that by section 36(5) of the 1999 Constitution the Respondent had the guarantee of innocence until proved guilt of the allegations made against him and that the charge was terminated because the Appellant refused to give evidence. Also that section 149 [d] of the Evidence Act is applicable and the Appellant with held the evidence because it would have been against it. He further said the Appellant is not permitted in law to use the act of with holding the evidence as a sword or shield to resist the Respondents case. According to him, it will not be right in the circumstances of the Respondents’ case for the Appellant to refuse to give evidence and then frustrate the claim of the Respondent because he was “merely” discharged. That the law is that where there is a wrong, there is always a remedy, which is that of malicious prosecution in the Respondents’ case and it will be bad for the law and society if nothing was done. The case by BELLO v. A.G. OYO STATE [86] 5 NWLR [45] 828 @ 836 and page 396 of Salmond & Henston on the Law of Torts, 18th edition, 1981 were relied on for the submission. It was the further argument of learned counsel for the Respondent that the evidence in the case is that the Appellant did not merely report to the police but that it:-

(i) It reported the respondent alone to the police;

(ii) supplied all the evidence to the police;

(iii) Was in receipt of exhibit P – respondent’s counsel letter to police see paragraph 19 of Appellant’s of Defence page 11 of the records.

(iv) The weight of the allegation against the respondent in the charge sheet exhibit Q page 19 of the records;

(v) The exemplary character and conduct of the respondent;

(vi) The appellant did not call the police to give evidence as to what it did or did not do;

(vii) The appellant failed to produce any evidence as to its claimed geniuses of its report to the police;

(viii) The appellant refused to give evidence leading to the inference that the charge was false to its knowledge and that in order to terminate the employment of the respondent; it pressurized the police to charge the matter to court.

That the Respondent proved all the legal ingredients required for the claim of malicious prosecution and that the Appellant used the police as its agents.

On the award for aggravated damages, it was submitted that it was proper and just since the loss of the personal liberty by the Respondent was a direct consequence of the false report to the police by the Appellant.

It was also the case of the Respondent that for failure by the Appellant to give evidence, its paragraphs 14, 15, 21 [b) [c], 22 [c], 26, 27 and 29 of the statement of defence are deemed abandoned. It was finally submitted that the issue be resolved against the Appellant. I intend to determine this first issue before a review and consideration of the submissions of the learned counsel on the 2nd issue on the award of damages. The simple and logical reason is that the issue of the award of damages depends on whether or not the decision of the court below on the claim for malicious prosecution was right. The issue of damages will only arise if my finding on the first issue was that the decision of the court below was right or I answer the issue as framed in the negative.

Before a determination of the issue however, a brief statement of the simple facts that gave rise to the claim of the Respondent in the court below would provide a clear picture and foundation upon which to assess the decision of that court which is the subject of the appeal.

The facts are that the Appellant through one Mr. Brian Hutchings had made a complaint against the Respondent to the police at Onne on the 7/10/1999 and the Respondent was arrested on the 8/10/1999, detained from 8th – 12th of october, 1999 and charged to the Magistrate Court, Onne on 16/11/1999. That the charge against the Respondent, was dismissed on 6/6/2000 for non-prosecution by the Magistrate Court and he was discharged. These are the relevant facts to the appeal.

Now, an expedient way to start a consideration of the first issue is by restating the position of the law as established by judicial authorities on what is malicious prosecution and the essential elements that have to be proved for a successful claim for the tort. As the name implies, malicious prosecution simply means prosecution that is actuated by malice and entirely undertaken against a person without any reasonable or probable cause.

Malice will arise for instance where at the end of investigations of a complaint by the police no case was revealed but the complainant insist that the police must charge the plaintiff to court;

Or if the facts of a complaint are to the knowledge of a complainant, false. Malice will also arise where a complainant misled the police by presenting suborned, paid or arranged witnesses to support a false complaint pr where the complaint in any other unlawful way influences the police in prosecuting a plaintiff over tramped up allegations.

Reasonable or probable cause on its part entails being in possession a set of facts which to an ordinary and reasonable person would lead to the inference that the person against whom a complaint has been made to the police, was guilty of the alleged offence. The belief and inference of the commission of the offence must be honest and based on reasonable grounds of the facts and circumstance presented in each case. See BALOGUN v AMUBIKAWHUN and IYALEKUE v. OMOREGBE [91] 3 NWLR [177] 94 @ 106.

On his ingredients to be proved in the claim for malicious prosecution, the law is settled that the plaintiff in such an action must plead land successfully establish by evidence the following:-

1. That the defendant prosecuted him in the sense that he set the law in motion, against him.
2. That the prosecution ended in his favours in the sense that he was tried by a competent court but was found not guilty and was discharged and acquitted;
3. That the prosecution of the plaintiff was without reasonable and probable cause;
4. That the prosecution was purely based and as a result of malice by the defendant against the plaintiff.

See CCB NIG LTD v. ODOGWU [90] 3 NWLR [140] 646, IYALEKHUE v. OMOREGBE [supra], ISHENO v. JULIUS BERGER PLC [03] 14 NWLR [540] 289, CBN v. OKOJIE [04] 10 NWLR [882] 488 BAYOL v. AHEMBA [99] 10 NWLR [623] 381.

In addition, the law is also that a mere complaint or report to the police alone is not enough or sufficient to ground the tort of malicious prosecution. There must be proof of malice and absence of reasonable and probable cause on the part of the complainant. See BALOGUN v. AMUBIKUNHUN [supra], BAYOL v. AHEMBA [supra] also reported in [99] 7 SC [pt.1] 92 OJO v. LASISI [03] 7 NWLR [819] 237.

Furthermore, all the above essential elements/ingredients of the tort of malicious prosecution have to be established together by a plaintiff for a successful claim. In other words all the elements must be shown by evidence to be present in order to succeed in the claim for malicious prosecution. See, IYALEKHUE v. OMOREGBE [supra] EHUJENE v. BWISY [02] 3 NWLR [754] 356 @ 367.

I would now consider the above principles of law to the facts and evidence placed before the court below by the parties to the appeal in order to determine whether for malicious prosecution was made out.

The first element or ingredient to be proved is that the Appellant here prosecuted the Respondent in the sense that it set the law in motion against him. The relevant portions of the facts presented in the Respondent’s pleading, ie the statement of claim dated and filed on 17/8/2000 [which is at pages 4 – 7 of the record of appeal] are to be found in paragraphs 17, 21, 22, 23 and 24. The averments in the said paragraphs are as follows:-

17. The plaintiff was his carrying out his duties with his usual exemplary conduct when he was arrested by the police at Onne on the complaint of the defendant through one Mr. Brian Hutchings. He was detained from 8th October to 12th October, 1999.
18. That the plaintiff was subsequently charged to court on 16th November 1999 in charge No. POC/ONN/25C/99at the Onne Magistrate’s Court presided over by His Worship A. Enebeli Esq. Chief Magistrate.
19. That the defendant having maliciously started the prosecution of the plaintiff and without waiting for the conclusion of the charge terminated the employment of the plaintiff without any reason sometime in October, 1999. The charge sheet will be founded upon at the trial of this suit.
20. The plaintiff avers that throughout the duration of the case from 16th November, 1999 when he was arraigned and granted bail to 6th June, 2000 when the charge was dismissed and his discharge the defendant never come to court or gave any evidence.
21. That after several adjournments the defendant willfully refused to prosecute the charge and the learned Chief Magistrate on 6th June, 2000 dismissed the charge for non prosecution. The ruling of the court will be founded upon at the trial of this suit.

The combined effect of the above assertions are that the Respondent was arrested, detained and prosecuted on the complaint of the Appellant though one Mr. B. Hutchings.

On its part, the Appellant in paragraphs 16, 20, 21 22 and 23 of the statement of defence dated 21/2/2001 [which appears at pages 8 – 14 of the printed record of appeal] made averments in the following form:-

16. In paragraph 17 of the Statement of Claim, the defendant admits laying a genuine complaint to the police against the defendant for stealing and fraud against the plaintiff. It is equally true that after the defendant lodged a genuine complaint, the police investigated, arrested and charged the plaintiff to court at Onne Magistrate Court.
17. In answer to paragraph 21 of the Statement of Claim, the police was under duty to charge the plaintiff of court after the conclusion of investigation. It was the police that set the criminal proceedings in motion against the plaintiff and not the defendant. The defendant further replies that the charge at Onne Magistrate Court was instituted by the police against the plaintiff, or honest belief by the Defendant that enough evidence was furnished to the police to prosecute the plaintiff for a criminal matter which is always at the instance of the Commissioner of Police and not the defendant.
18. (a) In answer to paragraph 22 of the Statement of Claim, the defendant states that there was no malice whatsoever against the plaintiff.

(b) The plaintiff being a temporary worker with only 6 months appointment letter dated 26/7/99 is a probationary employee and could be subjected to termination and payment in lieu of notice.

(c) The 6 months employment of the plaintiff dated 26/7/99 was not confirmed or renewed before the plaintiff was involved in a criminal matter in the defendant’s employment, resulting from the purported Joint Venture Agreement with former employers of the plaintiff.

(d) There was nothing like malicious prosecution. It was the police that decided to charge the plaintiff to court after investigations of complaint lodged by the defendant.

22. (a) In paragraph 23 of the Statement of Claim, the defendant replies that there was no witness summons from the police inviting the defendant to appear in court and give evidence against the plaintiff.

(b) The defendant is not to blame for non-prosecution by the police.

(c) The defendant has records and evidence to establish the guilt of the plaintiff but the defendant was never summoned to the court to give evidence.

(d) The defendant further replies that dismissal or discharge of the plaintiff, is not an acquittal.

(e) The purported dismissal or discharge of the plaintiff is not merit and cannot amount to acquittal of the plaintiff.

23. In answer to paragraph 24 of the Statement of Claim, the defendant replies that there was overwhelming evidence to prosecute the matter – but no summons to the defendant to appear in court and give evidence. The dismissal and discharge of the plaintiff was contrary to natural justice as the defendant was riot heard in a matter where evidence was overwhelming to prosecute the plaintiff successfully.

The purport of the above pleadings by the Appellant is the denial of the averment of the Respondent set out earlier. They are to the effect that the Appellant only lodged a genuine complaint to the police who investigated, arrested and then prosecuted the Respondent to court. That the Appellant did not receive witness summon to testify before the Respondent wad discharged.

From the above pleadings by the parties, it is clear that they had joined issue on the element of whether it was the Appellant who prosecuted the Respondent by setting the law in motion against him. The matter then became one of proof by evidence.

What was the evidence adduced in proof on the balance of probabilities by the parties? The relevant part of the evidence given by the Respondent on whom the legal burden of proof lies, can be found at pages 19 – 20 of the record of appeal where the Respondent testified as PW.1 in evidence in chief and page 23 where he was cross examined. In the evidence in chief, the Respondent, almost word for word, repeated the averments contained in his pleadings set out above. Under cross examination, the Respondent said that the police investigated the complaint made by the Appellant and took him to court but insisted that it was the Appellant and not the police that prosecuted him.

The evidence adduced by Appellant in proof of its own side of the case is at page 28 – 29, and 32 -3 of the record of appeal was through DW.1. The evidence was to the effect that the Appellant had discovered that large quantity of chemicals was missing in its warehouse where the Respondent was supervisor and made a complaint to the police. That the police investigated the complaint and charged the Respondent to court and that the Appellant did not prosecute the Respondent to the court. That it was the police that informed the Appellant that the Respondent was!, to be charged to court and that the Appellant did not in any way direct the police in their investigations in the matter.

Above is the state of the case presented before the court below by each of the Respondent and Appellant. The question that arises from the pleadings and evidence of the parties is whether the Appellant can be said to have prosecuted the Respondent in the sense that it set the law in motion for the prosecution against him. For the purposes of the claim for malicious prosecution, to be liable, a defendant must be actively instrumental in setting the law in motion for the prosecution of a plaintiff. Within the con, to prosecute is to deliberately and actively initiate or instigate by way of a direct appeal to or pressure on a person with judicial authority with regard to a complaint or report made that the plaintiff be charged and put to trial.

Thus for a defendant to be shown to have set the criminal law in motion against a plaintiff, it must be proved by evidence that the defendant had in any manner directly influenced the police in the decision to charge the plaintiff to court on the complaint made.

consequently as stated elsewhere in this judgment an action for malicious prosecution will not lie against a person who merely gave information to the police by way of a report or complaint of the commission of an offence, which led the police on their own initiative to arrest, and eventually charge another to court after their investigation of the complaint. The position is also the same in respect of a report or complaint made to the police where a particular person is named [as in the present appeal] as the person suspected of stealing the missing property of the complainant and the person is subsequently arrested and charged or prosecuted by the police on their own volition. In these situations, a defendant cannot be said to have been instrumental or actively set the law in motion for the prosecution because the police had the option and liberty to deal with the matter in accordance with the outcome of their investigations of the complaint made to them. If the evidence did not show that the defendant influenced the police in any way in the decision to prosecute a plaintiff, then the prosecution cannot and will not properly be attributable to the defendant, but to the police. See BALOGUN v. AMUBIKAHUN [supra] BWAVDU NIVU v. BOTU [20] 9 NWLR [672] 220, SPDC v. OLAREWAJU [2] 16 NWLR [792] 38, ADEYEMO v. AKINTOLA [04] 12 NWLR [887] 390, OJO v. LASISI [supra]

In this appeal, the evidence adduced by the respondent as plaintiff, [summarized earlier] did not show or establish that the Appellant did any thing to influence the prosecution of the Respondent apart from making a report or complaint to the police about the missing chemicals in its warehouse where he was the supervisor. Put differently, the evidence of the Respondent did not show that apart from making a report or complaint to the police about the missing chemicals in its warehouse where be Respondent was in charge as supervisor, the Appellant influenced the police in any way or manner in the decision to charge him to court over the complaint. As a result there is no evidence on the basis of which the Appellant can properly and reasonable be found to have prosecuted the Respondent in respect of the complaint. My finding on this first element of the claim for malicious prosecution is that it was not proved on the balance of probabilities by the evidence of the Respondent.

The first element appears to be the foundation from/on which the claim for malicious prosecution could be built and without which it will automatically collapse. This is because where a defendant is not shown by evidence to have prosecuted or been responsible for the prosecution of a plaintiff, then the bottom or basis of the claim would be knocked off and absent. That is one reason why the law as demonstrated earlier is that all the elements/ingredients of the tort must be present and proved together for the claim to succeed. The failure on the part of the Respondent to prove the first vital element of the claim, makes a consideration of the other elements which are entirely dependent on its proof, unnecessary. In the result my answer to the issue is in the negative in favour of the Appellant. For the avoidance of doubt, my decision is that from or on the available evidence before the court below, a case of malicious prosecution of the Respondent was not made out against the Appellant.

It may be recalled that I had stated before now that the 2nd issue would depend on my finding on the 1st issue. For ease of reference, the 2nd issue is whether on the state of the pleadings and evidence, the award of special damages made by the court below is sustainable. On a closer reading, I observed that the Respondent’s pleadings on the claim for special damages are contained in paragraphs 31, 32 and 35 [ii] of the statement of claim which is at pages 6 – 7 of the record of appeal. The averments are

31. That the plaintiff avers that all his business opportunities collapsed especially his car hire service
32. That the plaintiff has two cars which give out on hire to companies and persons at the rate of N5, 000.00 per car per day which business came to an end on 16th November, 1999 on his arraignment.
33. Wherefore the plaintiff hereby claims against the defendant as follows:

(ii) The sum of N10, 000.00 per day as special damages from 16th November, 1999 until judgment.

What these averments clearly and simply say is that the Respondents’ business of car hire collapsed or came to an end on the 16th/11/2000 when he was charged and arraigned before the Magistrate Court by the police. The evidence in chief of the Respondent at page 20 of the record of appeal was that “I had a car hire service. The car hire service came to an end because of the case since the 19/11/1999”.

So by both pleadings and evidence of the respondent in the court below, the claim for special damages was based completely on the arraignment of the Respondent to the Magistrate Court by the police. With my finding that it was the police and not the Appellant that was responsible for and did in law, prosecute the Respondent in respect of the complaint made to the police, the Appellant cannot be held liable for the special damages claimed by the Respondent based on the fact of the arraignment or prosecution. If any liability would arise in the circumstance, if will be for the police who arraigned and prosecuted the Respondent after investigating the complaint against him. There is therefore no case made out against the Appellant by the state of the pleadings and evidence which will make it liable for the special damages claimed by the Respondent in view of the finding on the 1st issue in this appeal. The 2nd issue in the appeal has therefore been effectively overtaken by the decision on the 1st issue on which it entirely depended.

In the final result, I find merit in the appeal and for the reasons set out before now, allow same. Consequently, the decision of the court below delivered on 25/11/2004 in suit No.PHC/174/2000 is I hereby set ‘aside. For failure to prove the tort of malicious prosecution in accordance with established principles of law against the Appellant, the claims of the Respondent are hereby dismissed.

Each party to bear the costs of prosecuting the appeal.

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Other Citations: (2009)LCN/3220(CA)