Benson Ikoku V. Enoch Oli (1962)
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UNSWORTH,F.J
This is an appeal from a decision of the High Court of the Eastern Region awarding to the respondent as plaintiff, the sum of £705-10s-0d in a claim for damages for malicious prosecution.
The circumstances of the case are that on or about the 23rd March, 1955, the appellant made a complaint against the respondent in the following terms:
‘Yesterday 22nd March 1955 at about 8.30 a.m. I was in my house at Oba, one Enoch Oli of Oba came to my house in the company of one Obishiri Aniekwe. Thomas Enechuku, Madukegbu Nwokolo. Obiefuna Nwataka, all of Oboji quarter Oba, also Iwuoba Agwuegbue, Obanwuzia Nnabude, Onyemenam Onachuku, Ndubuisi Otadike, Ezekiel Onyeagbanusi and so many others I cannot remember now. Enoch Oli the ring leader ordered them to damage all that they see in my house because he has said that I will no longer live there as he disputed with my junior brother Godfrey lkoku over his house that he refused him to stay at Port Harcourt. I had no previous quarrel with him other than the case he had with my junior brother Godfrey. The following things were damaged: two palm trees, two coconut trees, four bundles of zince valued £5-1 Os-ad each valued £22, one 5 gallon iron pot, one basin, five bags of cement and all the plants I collected for my yams were removed by them. The total being f.40—Signed Benson Ikoku.’
The respondent was duly prosecuted with nine others on charged of stealing and unlawful damage to property, and conduct likely to cause a breach of the peace. The respondent was acquitted and thereupon instituted these proceedings for malicious prosecution.
It appears from the opening address of Counsel in the Court below that it was not in dispute that the appellant was the prosecutor, and in his closing address Counsel for the appellant said:-
‘Plaintiff must prove 4 ingredients. There is authority in Nigeria that if a prosecution has been brought about by deft he is deemed to be prosecutor. 14 W.A.C.A at 276. Defendant is one who instituted prosecution (2) Was prosecution determined in favour of plaintiff. 25 Hals (3rd Edition) 354 section 693 and 4. Prosecution terminated in plaintiffs favour. It is with (3) and (4) grounds that I ask Court to dismiss plaintiffs case.’
One ground of appeal that was argued was that the trial Judge did not direct his mind to the evidence of Theophilus Ugwunezbulam, a Police Officer, who said that he was satisfied that the respondent had committed the offence. Counsel said that this was relevant on the issue of whether the appellant was the prosecutor. In reply Counsel for the respondent drew attention to the references in the record referred to above, and pointed out that it was admitted in the court below that the appellant was the prosecutor. The issue in that Court was whether the prosecution was without reasonable or probable cause, and malicious. In these circumstances I do not think that this ground of appeal can succeed or that we should now consider whether or not the appellant was the prosecutor.
A further ground of appeal was that the Judge wrongly refused to permit cross-examination of the Police Officer on statements made to him. It was submitted that the statements, and the evidence of the persons who gave them, would be admissible to prove reasonable and probable cause for the prosecution. I gathered from Chief Rotimi Williams that this ground of appeal was really subsidiary to the first ground of appeal and was dependent on the supposition that the appellant was not the prosecutor. lt follows that this ground of appeal cannot succeed. The basis of the case was the allegation made to the Police Officer, and statements 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 main ground of appeal was that the trial Judge was wrong in deciding the case on the balance of probabilities. Counsel referred to the wording of the complaint which he said must be proved to be false. He submitted that by virtue of s, 137(1) of the Evidence Act the allegation that the appellant made a false report to the Police should have been proved with the standard of proof that is required in a criminal case, as it amounted to an allegation that the appellant had committed a crime contrary to Section 125A of the Criminal Code. In arguing this point, Counsel also referred to the wording of paragraph 3 of the Statement of Claim, the findings of the trial Judge, Section l25A of the Criminal Code and Section 137(1) of the Evidence Act.
These are as follows:-
Statement of Claim
‘On or about the 23rd day of March, 1955 the defendant falsely and maliciously and without reasonable or probable cause lodged a complaint before the Police Authorities Onitsha charging the plaintiff with stealing and wilful and unlawful damage to property and conduct likely to cause a breach of the peace and caused the plaintiff to be arrested and to be sent for trial in the Magistrates Court Onitsha on the said charge.’
Finding of the trial Judge
‘The question to be decided by this Court and the one which in my opinion, is the whole crux of this case is has the plaintiff proved on the balance of probabilities that at the time of the invasion (viz. of the defendants house, which led to his complaining to the Police) he was not present as alleged aiding and abetting the commission of the offence …. he (the plaintiff) has established on the balance of probabilities that the statement made to the Police by the defendant. was when he made it false to the knowledge of the defendant.’
Section /25A of Criminal Code
(I) Any individual who gives any information which he knows or believes to be false, to any person employed in the public service with the intention of causing such person-
(a) to do or omit to do anything which such person ought not to do or ought not to omit to do if the true facts concerning the information given were known to such person; or
(B) to exercise or use his lawful powers as a person employed in the public service to the injury or annoyance of any other person, is guilty of an offence and liable to imprisonment for one year.
‘(2) A prosecution for an offence under this section shall not be instituted-
(a) without the consent of a superior police officer; or
(b) where in any province an administrative officer has been duly appointed to have charge of the police therein under the provisions of subsection (I) of section 7 of the Police Act, without the consent of that administrative officer.’
Section 137(I) Evidence Act
‘If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal it must be proved beyond reasonable doubt.’
Counsel for the respondent, in reply to this ground of appeal, submitted that Section 137(1) of the Evidence Act means an issue raised in the pleadings and no crime was put in issue by paragraph 3 of the Statement of Claim. The allegation was that the appellant had maliciously prosecuted the respondent and falsity is not a necessary ingredient of that allegation. He said that if falsity was in issue it was not a crime. In this respect Council argued (as I understand him) that Section 125A of the Criminal Code involves falsity and active belief in falsity, but that in a civil case for malicious prosecution, active belief in falsity is not material. In these circumstances he submitted that the commission of a crime was not directly in issue in the proceedings within the meaning of s.137 (1) of the Evidence Act.
The provisions of s. 137(I) were considered by this Court in the case of Sunday E. Oso V. Chief Festus Okorie-Eboh (ES.C. 407/1959), where we held that the issue of a crime must arise on the pleadings. We have not, however, previously considered the scope of the subsection. In my view, the subsection only applies where there is a specific allegation of a crime in the pleadings, so that the commission of a crime can properly be said to be a basis or foundation of the claim or defence, as the case may be. For example, the subsection, would apply where a defendant in an action for libel pleaded justification of an allegation that the plaintiff had committed a criminal offence or where a petitioner sought divorce under the Matrirnonal Causes Act. on the grounds of rape, sodomy or bestiality. In the present case the matter directly in issue is not whether a crime has been committed, but whether the prosecution was without reasonable and probable cause and malicious, and the commission of a crime against s. 125A of the Criminal Code is not a basis or foundation of that issue. The falisity of the charge was also alleged in the usual form in the Statement of Claim, but there was no allegation in the pleadings that it was false to the knowledge or belief of the defendant. I can find nothing in the pleadings which raises directly the commission of a crime as provided by s. l25A of the Criminal Code. Facts directly in issue are to be distinguished from facts which come collaterally into question. The question whether the facts alleged in the pleading and evidence may (though the point was not taken in the court below and there is no specific decision on it) amount to an offence under s, 125A of the Criminal Code is a collateral matter. In the above circumstances I am of the view that the commission of a crime against s. 125A was not directly in issue in this case within the meaning of s. 137( I) of the Evidence Act.
The above construction is supported by the wording of other provisions of the Evidence Act. Section 2 of the Evidence Act defines ‘facts in issue’ but not ‘facts directly in issue’. The words are, however, used in 2, 53, which provides that decisions on facts directly in issue create an estoppel in the circumstances mentioned in that section, and I do not think that it could be contended that an estoppel by way of res judicata could arise in subsequent proceedings between the parties (for example, a libel action) on the issue of whether the appellant has committed a crime contrary to s. 125 A 0 f the Criminal Code.
I should mention (though the point was not taken before us) that sections 53 and 107 of the Evidence Act are clearly taken from Articles 42 and 103 of Stephens Digest of the Law of Evidence. The case of Thurtell V. Beaumont, (1823), I Bing. 339, cited by Stephen under Article 103 appears to have been decided on the basis that the defence raised a specific allegation of arson.
For the reasons given in this judgment I would dismiss the appeal with costs assessed at twenty-five guineas.
Other Citation: (1962) LCN/0968(SC)
