Chief L. Oyelakin Balogun V. Alhaji Busari Amubikahun (1989)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.S.C.

The appellant is a legal practitioner based at Ibadan. In his private capacity, he has a land dispute with the respondent in one of the Courts in that city. Sometime in March, 1979, with the land case still pending in Court, the appellant went to the police post at Orita Challenge, Ibadan, and lodged a complaint that the respondent, Alhaji Busari Amubikanhun, a butcher, has employed one Madam Olufunmilayo Adekunle to kill him and steal his dresses and transistor radio.

It is apparent that he created the impression that the said Olufunmilayo Adekunle was a witch and that her witchcraft would be employed to cause his death. It was alleged that the woman gained entry into the appellant’s house and actually removed a transistor radio and some dresses before she was caught. After being held by the appellant and perhaps neighbours, she confessed that she was sent on a mission by the respondent to kill the appellant.

The appellant took the woman to the police at Orita Challenge. It was already dark, perhaps after 21:00 hours. That was on 6th March, 1979. The appellant got the woman locked up at the police station. Thereafter, he took the police to the house of the respondent and got him arrested, though he claimed later that he only acted as a pointer and offered police a lift in his car to effect the arrest of the respondent. At the police station, the respondent was locked up, the appellant making his presence felt at that place and was scaring away those ready to stand surety for the respondent so that he might be released on police bail. He told one of such persons that the respondent was a murderer and that nobody should risk standing surety for him.

The respondent thus slept in the police cell that night and was only released on bail on the 7th March, 1979. The respondent was finally taken before a Chief Magistrate Court and tried jointly with Olufunmilayo Adekunle. They were discharged and acquitted of the criminal charge. It is noteworthy that the appellant not only gave evidence before the Magistrate Court, but went further to allege that when Adekunle entered his house and was discovered stealing, “she attempted to change into a cat” and that he (appellant) and others around saw “her growing a tail like a cat’s.” It was when she could no longer change completely into a cat that she confessed her mission.

Whereas, at her joint trial with the respondent, the woman confessed that she was tutored into the act of implicating the respondent by the appellant and that she was paid N300.00 by the appellant for this purpose. The magistrate had no difficulty in disbelieving the case for the prosecution and believed the trial was based on fake and malicious accusation by the appellant in conspiracy with Adekunle. This led to the action in the High Court by the respondent for malicious prosecution which was successful and was upheld by the Court of Appeal consequent upon which this appeal was lodged.

For his appeal, the appellant filed six grounds which may be summarized as follows:

1. That the Court of Appeal erred in law by holding that the appellant was the one who prosecuted the defendant, whereas the prosecution was done by the police and all the appellant did was to lodge a complaint of a crime as a good citizen. It was then up to the police to prosecute or refuse to prosecute.
2. That the Court of Appeal erred in law to find the appellant liable when the complaint of the appellant to the police was based on reasonable and probable cause that a crime had been committed.
3. That pleadings, alleging criminality ought to be proved beyond reasonable doubt by virtue of s.137 Evidence Act and because the statement of claim alleged crime, then the respondent must prove beyond reasonable doubt.
4. That the Court of Appeal erred in law by not holding that the appellant’s statement (which for no explicable reason disappeared from police case diary) which was not put before the High Court, was not fatal to the case of the respondent because other pieces of evidence abound to justify the decision of the High Court.
5. That it was the duty of the respondent as plaintiff to establish absence of reasonable and probable cause and the Court of Appeal erred by holding that he did.
6. That the award of N5,000.00 general damages as confirmed by Court of Appeal was an error in law.

The appellant’s brief of argument is in line with the grounds of appeal:

“QUESTIONS FOR DETERMINA TION

(1) On the facts established in evidence, was the Appellant in law, the prosecutor of the Respondent

(2) Did the Respondent as Plaintiff establish an absence of reasonable and probable cause for his prosecution

(3) On the evidence, was it not established that there was reasonable and probable cause for the prosecution of the Respondent

(4) Is the finding of the learned trial court that there was no stealing as alleged by the appellant material to the determination of the issues before the court and if it is, can the finding be justified on the evidence

(5) Is the statement made by the Appellant to the police on 6th March, 1979 after lodging a report (Exhibit 6) relevant in determining the actual complaint of the appellant and if it is, were its contents proved according to law

(6) What standard is required of the Respondent in proof of the allegations of fact in paragraphs 7, 8, 14, and 15 of the Statement of Claim and was that standard met

(7) Is it right for a trial Judge after disallowing certain items of special damage to consider these same items again in awarding general damages”

In an action for malicious prosecution, the plaintiff must plead and show by evidence that he was prosecuted by the defendant. In this regard, it must be 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 aforementioned the plaintiff was discharged and acquitted, in short that the prosecution was determined in the plaintiffs 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 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 everyone of them. To prosecute, in essence, 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 and to be liable for malicious prosecution, a person 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.

In our peculiar circumstance, as in this case, who can we say set in motion the prosecution of the respondent The appellant chose the time to take Olufunmilayo Adekunle to the police i.e. he took her at night and the purported arrest of the woman took place after he safely delivered her to the police to tell her concocted story. The appellant remained at the police station.

The officer in charge of the station’s crime section was found to be a friend of the appellant. He (appellant) gave lift, so he said, to the police, and woke up the respondent late at night, got him arrested and took the respondent and the police back in his car to the police station. There he made sure he was around and frightened away friends of the respondent who would like to stand surety for him. He was not only the owner of the pipe, he dictated the tune. But for Mrs. Adekunle making a clean break by revealing the sordid conspiracy, perhaps she and the respondent would still have some criminality hanging round their necks.

It is true the police arrested the respondent and locked him up like any other criminal in their cell and was released on bail the second day. It is also evident that the police charged the respondent before a Magistrate Court.

But the real force behind the whole matter is the appellant. He knew very well that the whole criminal complaint was a fabrication and that the arrest, remand in police custody and subsequent trial of the respondent was an unmitigated abuse of judicial process. He it was that technically set the whole prosecution in motion. He made sure the respondent was persecuted for daring to face him in a land case and part of the scenario is this trial in the Magistrate Court. It was the appellant that set in motion the law by appealing to the police to arrest, charge and take the respondent to the police. He approached the police, knowing they had cloak of authority to frame a criminal charge.

He was actively instrumental in doing this (Watters v. Pacific Delivery Services Ltd. (1964) 42 D.L.R. (2d) 661; Pandit Gaya Parshad Tewari v. Sardar Bhagat Singh (1908) 24 T.L.R. 884). In Nigerian situation, once a report or complaint is made to the police and strenuously pursued as in this case, and through the same mischievous lying, the police not only make an arrest of the incriminated person, but profer a charge against him B and take him to court for prosecution, the complainant has set in motion the law for a person clothed with authority to arrest and charge the incriminated person.

The complainant, having made a false statement, maliciously, and thus causes a judicial act like the issue of arrest warrant to the prejudice of the plaintiff, will be liable for malicious prosecution even though he may not technically have been the prosecutor in the strict sense. Farley v. Danles (1855) 4 EXB 493, 499; Quartz Hill Consolidated Gold Mining Co. v. Eyre (1883) 11 Q.B.D. 674, 684.

The respondent was prosecuted and the prosecution ended in his favour by his being discharged and acquitted. For the successful action of malicious prosecution, there must be evidence of the criminal case ending in favour of the plaintiff; otherwise the fact that a conviction was handed down on him precludes his right to sue. Everett v. Ribbands (1952) 2 Q.B. 198,202.

As to the requirement for reasonable and probable cause, absence of which the plaintiff has to prove in the instant case, he has shown that no probable or reasonable cause existed for the appellant to lodge the complaint against him. The reasonable and probable cause to my mind, entails the defendant having in his possession as a reasonable and sane person, a set of facts which to an ordinary man would lead to the conclusion that the plaintiff has committed a criminal offence. The belief in 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 circumstances must lead a prudent man to the conclusion that the plaintiff is probably guilty of the offence he is accused of committing (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. Bradshaw v. Waterlow and Sons Ltd. (1915) 3 K.B. 527,534; Dawson v. Vansandau (1863) 11 W.R. 516.

To say the least, the reasonable or probable excuse to be relied upon by the appellant was punctured by the fact that Mrs. Adekunle gave evidence of how she was asked to implicate the respondent and that the plaintiff paid her N300.00 for this conspiracy. The set of facts at the disposal of the appellant, as a professional man, beat any reasonable person’s imagination. Here is a lawyer, with his learning and his eyes wide open, talking of seeing perhaps a witch in the person of Mrs. Adekunle, who was purportedly trying to turn herself into a cat by first growing a tail! With the confession of the truth in court by this woman, there is little wonder the appellant has made himself a laughing stock.

Certainly, the appellant wanted by any means, to harass the respondent and frighten him away from the land case he had with him. That was his malice. He knew ab initio that he was making false criminal allegation against the respondent. He was actuated by improper and indirect motives because he knew he was making false allegation and his desire was for persecution and not prosecution for the right and proper ends of justice. What he had was not bona fide but malus animus. The proper motive for all prosecution is not to punish an innocent man, it is rather a desire to secure ends of justice. The absence of belief of the truthfulness of his complaint against the plaintiff by the defendant could easily be inferred from the circumstances of the case.

An example is this case in hand where the plaintiff cooked up a story, sold it to a woman, Mrs. Adekunle, and used it to prosecute the respondent, a completely innocent person; this is a strong case of manifest malice. Leibo v Buckman (1952) 2 All. E.R. 1057. Similarly, a desire to procure conviction by all means leading to concocting evidence, Stevens v. Midland Counties Railways (1854) 10 Ex. 352. It .would appear that the malice was the land case between the appellant and the respondent and by prosecuting the respondent, the appellant might be able to coerce him into submission – Haddrick v. Heslop (1848) 12Q.B. 267.

Once, however, the defendant could show reasonable and probable cause, malice may also be absent. Herniman v. Smith(1938) A.C. 305. The appellant clearly manifested malice and there is no mitigating aspect of this malice to justify any interference with the decision of the two lower courts.

It is for the above reasons I find no substance in this appeal and I dismiss it with N500.00 costs to the respondent.

SC.237/1985