Compagnie Generale De Geophysique (Nig) Limited V. John Ariemughare (2016)
LawGlobal-Hub Lead Judgment Report
JIMI OLUKAYODE BADA, J.C.A.
This appeal emanated from the Judgment of the High Court of Justice, Effurun Judicial Division of Delta State of Nigeria in Suit No. EHC/104/99 JOHN ARIEMUGHARE VS COMPAGNE GENERALE DE GEOPHYSIQUE NIGERIA LIMITED delivered on 1st day of August 2007 wherein Judgment was given in favour of the Respondent and against the Appellant.
Briefly, the facts of the case are that by the Writ of Summons and by paragraph 18 of the 4th Amended Statement of Claim, the Respondent claimed as follows: –
Whereof the Plaintiff claims against the Defendant as follows:
(a) SPECIAL DAMAGES
Cost of Medical Treatment
(i) On 17th July 1996 N 22,500.00
(ii) On 23rd July 1996 N 16,500.00
(iii) On 28th July 1996 N 85,000.00
(iv) On 6th September 1996 N 102,800.00
(v) On 21st October 1996 N 6,200.00
N 233,000.00
Monies extorted from the Plaintiff by the Defendant and its agents
i. On 15th July 1996 at Port Harcourt
feeding expenses at a restaurant N 5,250.00
ii. On 15th July 1996 for accommodation
of Mr. Danjuma
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and his friend N 5,000.00
iii. Cost of transportation being half of
the Total cost of N20,000.00 for
charter of vehicle to and from Port-
Harcourt N 10,000.00
N 20,250.00
(b) GENERAL DAMAGES
(i) N1,000,000.00 (One Million Naira) in
that Plaintiff was unlawfully arrested and falsely imprisoned from the 12th day of July through the 13th day of July 1996 at the Police Station, Sapele.
(ii) N1,000.000.00 (One Million Naira) in
that on the 22nd day of July 1996, the Defendant maliciously prosecuted the Plaintiff in Charge No. MS/295C/96 wherein Plaintiff was discharged.
(iii) N500,000.00 in that the Plaintiff has
suffered damages from the Defendant by falsely and maliciously alleging speaking, writing and publishing of the Plaintiff to the Police and others namely John Ariemughare stole tripod valued N20,000.00 property of C.G.G Company.
(iv) N500,000.00 in that the Plaintiff /Applicant lost his tooth at the age of a full grown adult which can never be replaced again.
At the conclusion of hearing, Judgment was entered in favour of the Respondent and a total sum of (N1,783,500.00) one
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million, seven hundred and eighty-three thousand, five hundred Naira was awarded as damages in his favour, for false imprisonment arising from the alleged unlawful arrest, malicious prosecution and body injury.
The Appellant who is dissatisfied with the Judgment of the lower Court now appealed to this Court.
The learned counsel for the Appellant formulated two issues for the determination of the appeal. The issues are reproduced as follows:
(1) Whether the Appellant is liable to
Respondent for false imprisonment, malicious prosecution and loss of tooth.
(2) Whether Respondent’s suit ought not to
dismissed on grounds of incompetence.
On his own part, the learned counsel for the Respondent adopted the two issues formulated for determination of the appeal by the Appellant. At the hearing, the learned counsel for the Respondent referred to the Preliminary Objection which was filed on behalf of the Respondent. He stated that the objection was argued on pages 2 to 6 of the Respondent’s brief of argument filed on 2/4/2013.
He adopted and relied on the Preliminary Objection as his argument in urging that the appeal
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be dismissed.
The learned counsel for the Appellant, in his response, referred to the Appellant’s reply brief of argument filed on 19/2/2016 which was deemed as properly filed on 29/2/2016.
He relied on the said Appellant’s reply brief of argument as his argument in urging that the objection be dismissed.
The Respondent based his objection on the following grounds: –
(1) That the notice of appeal does not comply
with the mandatory requirements of Order 6 Rule 2(3) of the Court of Appeal Rules 2007.
(2) The grounds of appeal are vague, general
in terms and argumentative, contrary to Order 6 Rule 3 of Court of Appeal Rules.
(3) The issues for determination formulated in
the Appellant’s brief do not arise out of the decision appealed against.
(4) Ground 4 of the grounds of appeal does
not disclose any reasonable ground of appeal from the decision of the trial Court.
The learned counsel for the Respondent submitted that the notice and grounds of appeal as filed by the Appellant is incompetent and incurably defective as same was filed contrary to the provisions Order 6 Rule 2 and 3 of
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the Court of Appeal Rules 2007.
He relied on the following cases: –
– CCB LTD VS NWOKOCHA (1998) 9 NWLR Part 564 Page 98;
– ODUDU VS ATOYEBI (1987) 2 NWLR Part 68 Page 660;
– TIZA VS BEGHA (2005) ALL FWLR Part 272 Page 200 at 221 paragraph FH and Page 215 paragraphs EF.
The learned counsel for the Respondent also relied on Order 6 Rule 6 of the Court of Appeal Rules 2007.
He submitted that Ground 1 of the appeal and its particulars 1 to 7 are vague and that the whole notice of appeal is prolix, argumentative vague and not within the purview of Order 6 Rules 2 and 3 of the Court of Appeal Rules. He relied on the following cases: –
– CENTRAL BANK OF NIGERIA VS OKOJIE (2002) 8 NWLR Part 768 Page 48, (2002) FWLR Part 103 Page 349;
– KALU VS ODILI (1992) 5 NWLR Part 240 Page 130.
It was also submitted on behalf of the Respondent that the Issue 2 formulated for determination in this appeal does not flow from issues joined in the suit. He relied on the following cases:-
– OBASUYI VS BUSINESS VENTURES LTD (2000) FWLR Part 10 Page 1722 at 1728 particularly at 1738;
– OWNERS OF M/V GONGOLA HOPE VS
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SMURFIT CASES NIG LTD (2007) ALL FWLR Part 388 Page 1005 at 1020 paragraphs CD;
The learned counsel for the Respondent therefore urged that the appeal be dismissed or struck out.
In his response, the learned counsel for the Appellant submitted that the Grounds of the Notice of Appeal are succinct and it is to point. He went further that the Notice of Appeal was filed in compliance with the rules because the grounds are without any argument or narrative and were duly numbered consecutively.
He relied on the case of LANLEHIN VS AKANBI (2016) 2 NWLR Part 1495 Page 1 at 16 paragraphs EF.
It was also argued on behalf of the Appellant that nothing is vague in the notice of appeal, and apart from that, the Respondent has not given the particulars of vagueness to enable the Appellant reply on the point.
It was also contended that Ground 4 upon which Issue 2 was formulated disclosed a reasonable ground of appeal. He went further that the failure of the lower Court to pronounce upon the issue in the address has caused a miscarriage of justice. He concluded that the issue flowed from the Judgment.
Learned counsel for the
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Appellant therefore urged that the Preliminary Objection be dismissed with cost.
The contention of learned counsel for the Respondent is that the Appellant in filing the notice of appeal did not comply with Order 6 Rule 2(3) and 3 of the Court of Appeal Rules 2007. But counsel for the Appellant is of a contrary view.
Order 6 Rule 2(3) and 3 of the Court of Appeal Rules 2007 is reproduced as follows: –
2(3)
The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
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Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the Judgment is against the weight of evidence and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.
The learned counsel for the Respondent has contended that the notice of appeal did not comply with the mandatory
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requirements of Order 6 Rule 2(3) and 3 of the Court of Appeal Rules 2007, because the grounds of appeal are vague, general in term and argumentative.
An ideal ground of appeal must relate to the decision and should be a challenge to the validity of the ratio of the decision appealed against. See GOVERNMENT OF AKWA IBOM STATE VS POWERCOM NIG LTD (2004) 6 NWLR Part 868 Page 202;
– BABALOLA VS THE STATE (1989) 4 NWLR Part 115 Page 264;
– AZAATSE VS ZEGEOT (1994) 3 NWLR Part 342 Page 76.
According to the Rules of Court, a good ground of appeal must be concise, elegantly drafted and straight to the point; that as soon as it is read, the error or misdirection complained against can be immediately understood and digested. By the time one finishes reading the particulars, one will not forget what the main complaint is. It should also not be argumentative and the particulars must relate to and flow from the ground of appeal.
Where a ground of appeal cannot stand as a result of its incompetent particulars, that ground of appeal is defective and it ought to be struck out.
See the following cases: –
– OGBONNAYA VS ADAPALM NIG
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LTD (1993) 5 NWLR Part 292 Page 147;
– HONIKA SAWMILL NIG LTD VS HOFF (1994) 2 NWLR Part 326 Page 252;
– AJAOKUTA STEEL CO LTD VS O.O. BIOSAH CO. NIG LTD (1997) 11 NWLR Part 527 Page 145;
I have perused grounds 1, 2 and 3 of the notice of appeal which are hereby set out without their particulars
Ground 1 The learned trial Judge erred when he held that Plaintiff’s tooth was lost due to beating caused by Defendant’s officers without due recourse to the law of proof.
Ground 2 The learned trial Judge erred when he held the Defendant/Appellant liable for false imprisonment.
Ground 3 Learned trial Judge erred in law when he held Defendant liable for malicious prosecution……
Though the grounds and particulars were inelegantly drafted but they are not defective. The grounds and their particulars are related. The essence of a good ground of appeal and its particulars is to acquaint the Respondent with the issue involved in the appeal, once that purpose is served, a good ground of appeal cannot be seen as defective and therefore liable to be struck out together with any
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issue formulated therefrom.
By virtue of Order 6 Rule 3 of the Court of Appeal Rules 2007, which is impari materia with Order 6 Rule 3 of the Court of Appeal Rules 2011, no ground of appeal which is vague or general in terms, which discloses no reasonable ground of appeal shall be permitted. Vagueness of a ground of appeal may arise where it is couched in a manner which does not give allowance for its being understood, or where what is stated there is so uncertain and robs it of any form of intelligibility. It may also be vague when the complaint is not defined in relation to the subject matter or the particulars are clearly irrelevant to the grounds.
In my humble view, grounds 1, 2 and 3 with their particulars in this appeal do not suffer from any of the described deficiencies.
See ATUYEYE VS ASHAMU (1987) 1 NWLR Part 491 Page 267.
The learned counsel for the Respondent contended that Ground 4 of the notice of appeal does not disclose any reasonable ground of appeal from the decision of the trial Court. But counsel for the Appellant was of the view that the issue was raised in the address of counsel but that the lower Court failed to
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pronounce on the issue, thereby leading to a miscarriage of justice.
Ground 4 of the Notice of Appeal without its particulars states thus
The learned trial Judge erred in law when he failed to dismiss the Plaintiff’s case on ground of non-joinder of necessary party i.e. the police.
Issue 2 for determination in this appeal was based upon Ground 4 of the notice of appeal.
The issue of non-joinder of police as a necessary party was not an issue joined by the parties nor was there any decision by the trial Court on it and did not arise out of the Judgment appealed against to warrant an appeal. The Appellant at the trial Court did not file an application for joinder of the police or any other party neither did the Respondent apply for any joinder as well. The issue of non-joinder of the police as a party was only canvassed in the address of the learned counsel for the Appellant at the trial Court. It was not an issue for determination and it was not decided upon by the Court.
I am therefore of the view that the said Ground 4 upon which Issue No. 2 was formulated by the Appellant disclosed no reasonable ground of
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appeal. Issue No. 2 did not arise or flow from the Judgment appealed against, it was based upon an incompetent ground. Therefore, it is incompetent since it was formulated in the abstract.
In PFIZER SPECIALTIES LTD VS CHYZOB PHARMACY (2008) ALL FWLR Part 414 Page 1455 at 1469 paragraphs A to C, Garba JCA stated thus: –
… A ground of appeal which is the complaint and basis of dissatisfaction with the decision appealed against cannot be at large, it must enure from the decision of the lower Court/Tribunal on issues canvassed determined or pronouncement made by that Court or Tribunal. Any ground of appeal which is outside or did not arise from a decision of the lower Court or Tribunal would not be relevant and in legal parlance, is incompetent in the determination of an appeal against that decision.
In EGBE VS ALHAJI (1990) 1 NWLR Part 128 Page 546 at 590 paragraph A, Karibi-Whyte JSC stated thus: –
Again the grounds of appeal against a decision must relate to the decision and should be a challenge to the validity of the ratio of the decision.
Also, in OGUNYADE VS OSHUNKEYE (2007) ALL FWLR Part 389 Page
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1179 at 1191 paragraphs B to C and E, the Supreme Court per Musdapher JSC held as follows: –
An issue for determination in an appeal must not only be derived from a legitimate ground of appeal, but must also be related to the decision of the Court below.
…… To be appealable, a complaint must be related to the decision appealed against.
……where an issue for determination does not relate to any ground of appeal, this Court has no option other than to discountenance it as it is incompetent …… it will similarly be ignored if it did not feature in the actual Court below.
In view of the foregoing, since Issue No. 2 in this appeal did not flow from the Judgment appealed against, the said issue cannot be competent. Issues for determination in any appeal must not only be related to or arise not only from the grounds of appeal filed by the Appellant but must be traced to the Judgment or decision being appealed against.
Ground 4 of the notice of appeal which did not flow from the Judgment appealed against is incompetent and Issue No. 2 formulated for determination therefrom is also incompetent and it is hereby struck
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out.
I will now consider the merits of this appeal based upon Issue No. 1 which is the only pending issue in this appeal.
ISSUE FOR DETERMINATION
Whether the Appellant is liable to the Respondent for false imprisonment, malicious prosecution and loss of tooth.
It would be recalled that the learned counsel for the Respondent adopted the said Issue No. 1 which is among the issues formulated for determination of the appeal by counsel for the Appellant.
It is observed that this Issue No. 1 for the determination of this appeal is at large, it is not tied to any of the grounds of appeal. It has been repeatedly stated by the Supreme Court and this Court in several decisions that an issue for determination must arise from the grounds of appeal, and that an issue not tied to or predicated on any ground of appeal is incompetent and liable to be struck out along with any argument advanced thereon. Similarly, where no issue is distilled and canvassed in support of a ground of appeal, such ground will be deemed to have been abandoned and would be struck out.
See the following cases:-
– AJA VS OKORO (1991) 7 NWLR Part 203 Page 260 at 272
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to 273
– BAKARE VS L.S.C.S (1992) 8 NWLR Part 262 Page 641 at 687
– BUHARI VS TAKUMA (1994) 2 NWLR Part 325 Page 183 at 190
– ADELEKE VS ASENI (1994) 1 NWLR Part 322 page 536 at 550
Ordinarily Issue No 1 not being predicated on any of the Appellant’s grounds of Appeal is incompetent and ought to be struck out, but the appeal would be considered on its merits in the interest of Justice.
The learned counsel for the Appellant based his argument on three headings:
(a) False Imprisonment
(b) Malicious Prosecution
(c) Loss of tooth.
The learned counsel for the Appellant contended that for an allegation of false imprisonment to stand, the arrest must be baseless, unjustified and unlawful.
The learned counsel for the Appellant contended that it was the Appellant’s tripod that was stolen and the theft was reported to the police at Sapele. He stated further that on the fateful day, the Respondent, based on an earlier contract with the Appellant to supply another tripod surfaced with a tripod that not only looked like the stolen one but had a U shape mark which is the mark the Appellant places on
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all its properties for easy recognition.
The Respondent, according to the evidence, was asked to go home and come back later that day. It was when he came back that he was handed over to the police.
The learned counsel for the Appellant submitted that the Appellant denied ever instructing the police to deal with the Respondent. He relied on the case of
– AROYEWUN VS C.O.P. (2008) 16 NWLR Part 899 Page 414 at 431.
In his own response, the learned counsel for the Respondent contrary to the story of the Appellant, stated that when the Respondent went to supply equipments to the Appellant, 7 of the 8 equipments were accepted and the 8th was rejected and Respondent was directed to come back at 4.00pm that same day with his invoice. The 8th equipment which was rejected was alleged to belong to the Appellant. On his return, the Respondent was handed over to the Chief Security Officer who in turn handed over the Respondent to the police at Sapele. He was detained at the police station on 12/7/96 a Friday till Sunday 14/7/96. It was alleged that the Respondent was beaten at the police station.
It was contended by counsel for the
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Respondent that it was the Appellant who set the machinery in motion for the detention of the Respondent. He relied on the case of: –
– IGALI VS LAWSON (2005) ALL FWLR Part 262 Page 563 at 571 paragraphs BC and page 580 paragraphs DE.
The Respondent was eventually charged to Court but he was discharged.
The tort of false imprisonment is the restraining or detaining of a person. If the person doing or causing the imprisonment has no right in law to imprison that other. See FBN PLC VS ONUKWUGBA (2005) 16 NWLR Part 950 Page 120 wherein it was held as follows:
If there is evidence which shows that the reporting party upon suspicion of a felony made a complaint to the police, upon which the police themselves acted, an action in false imprisonment cannot be upheld. Thus to succeed in an action for false imprisonment, the Plaintiff must establish that the defendant was instrumental in setting the law in motion; passing information to the police is not enough. In other words, a mere complaint to the police will not make a citizen liable in false imprisonment.
See NWANGWU & ANOTHER VS DURU & ANOTHER
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(2002) 2 NWLR Part 751 Page 265 where this Court held
Where an individual has lodged the facts of his complaints to the police and the police thereupon on their own proceeded to carry out arrest and detention then the acts of imprisonment is that of the police. Per Augie JCA.
In this appeal under consideration, the Appellant whose tripod was stolen saw a tripod that looked like the stolen one which had a U shape mark which is the mark the Appellant places on all its properties for easy recognition, invited the police to whom the Respondent was handed over for further investigation.
In my humble view, a claim for the wrong of false imprisonment will not lie and cannot succeed against the Appellant who without more made a report to the police which led the police on their own initiative and in the course of investigation, to arrest the Respondent. The police in this case may have taken the Respondent away upon the complaint and not detain the Respondent if there is no reason for that.
I am therefore of the view that the Appellant is not liable for the false imprisonment of the Respondent. See the
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following cases
– U.A.C. OF NIGERIA PLC VS SOBODU (2006) LPELR CA/C/501/99;
– MANDILAS AND KARABERIS VS APENA (1969) 1 ALL NLR Page 390
– NWADINOBI VS BOTU (2000) 9 NWLR Part 672 Page 220 at 228;
– S.P.D.C. NIG LTD VS OLANREWAJU (2002) 16 NWLR Part 792 Page 38;
– ME LAREN VS JENNINGS (2003) 3 NWLR Part 808 Page 470;
– AFRIBANK NIG PLC VS ONYIMA (2004) 2 NWLR Part 858 Page 654.
The next to be considered is the issue of malicious prosecution. The learned counsel for the Appellant submitted that for malicious prosecution to succeed, four legal requirements by the plaintiff are necessary and these are:-
(1) That he was prosecuted by the Defendant that is that the law was set in motion against him in a criminal charge;
(2) That the prosecution was determined in his favour;
(3) That the prosecution was without reasonable or probable cause; and
(4) That the prosecution was malicious.
He argued that the onus of proving every one of these elements rests on the plaintiff.
He relied on the following cases:-
– IYALEKHUE VS OMOREGBE (1991) 13 NWLR Part 177 Page 94 at 101.
– OJO VS
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OKITIPUPA (2001) 9 NWLR Part 719 Page 679 at 695-696.
The learned counsel for the Appellant also argued that the Respondent failed to show any malice on the part of the Appellant in the prosecution, moreso, when there was no previous quarrel as he admitted under cross-examination.
It was also stated that the Respondent could not show that the proceedings was determined in his favour.
In his response, the learned counsel for the Respondent stated that the Respondent was prosecuted. He relied on the following cases:-
– NEWBREED ORGANISATION LTD VS ERHOMOSELE (2006) ALL FWLR Part 307 Page 1076 at 1113 Paragraph D;
– OJO VS LASISI (2003) FWLR Part 156 Page 886 at 896 Paragraph D;
– BALOGUN VS AMUBIKAHUN (1989) 4 SCNJ Page 249.
The learned counsel for the Respondent submitted that the learned trial Judge was right when he held the Defendant liable to the Plaintiff, for malicious prosecution.
He referred to the evidence on record adduced by the plaintiff as follows:-
i. He supplied defendant items;
ii. He was accused of stealing one of the items;
iii. He alleged that he was beaten and detained by the
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defendant where he lost his tooth;
iv. That the outcome of the case was in his favour as shown in Exhibit F;
v. He was beaten and charged to Court;
vi. He was carried in the defendant’s vehicle to the police station where the Chief Security Officer told the police that this is the thief;
vii. The defendant’s insistence on the matter led to their visit to Port-Harcourt at the expense of the Plaintiff;
viii. The Defendant gave statement to the police and gave evidence in charge No. MS/259C/96 and also hired services of three different lawyers to watch the brief;
ix. Exhibit F which is the record of proceedings at the Magistrate Court shows that the outcome of the case was in favour of the plaintiff.
Learned counsel for the Respondent contended that the criminal charge was determined on the merit. He referred to Exhibit F.
He therefore urged this Court to hold that the learned trial judge was right in law when he held the Defendant liable to the plaintiff for malicious prosecution.
In order for the plaintiff to succeed in an action for malicious prosecution, (1) He must plead and
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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 in a criminal charge. (2) He must show that as a result of the prosecution the Plaintiff was discharged and acquitted, thus the prosecution, was determined in the Plaintiff’s favour. (3) The Plaintiff must also plead and satisfy the Court by evidence that the prosecution by the Defendant was completely without reasonable or probable cause. (4) Finally he must plead and satisfy the Court that the prosecution was as a result of malice by the Defendant against the Plaintiff.
All the above 4 elements must be present for a successful action for malicious prosecution, and the onus is always on the Plaintiff to prove each and every one of them.
See BALOGUN VS AMUBIKAHUN (1989) 2 N.S.C.C Part II Page 195.
In this appeal under consideration, there was evidence that the Respondent was prosecuted, Exhibit F which is the record of proceedings in the Charge No. MS/259C/96 COMMISSIONER OF POLICE VS JOHN ARIENUGHARE showed that on Page 13 on Friday 27th day
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of December 1996, the Prosecutor applied to withdraw the charge against the accused i.e. the Respondent in this appeal.
The counsel for the accused did not object.
The Court then struck out the charge. The accused person was discharged but not on merit.
In OJO VS OKITIPUPA (2001) 9 NWLR Part 719 Page 679 at 695 – 696, it was held among others that a mere discharge which is not on merit i.e. discharge without acquittal cannot give rise to an action of malicious prosecution.
In this case, the Accused/Respondent was merely discharged but it was not on merit. Therefore, it could not be said the case was determined in his favour. See also:- IYALEKHUE VS OMOREGBE (1991) 13 NWLR Part 177 Page 94 at 101.
Another requirement to be looked at is, did the Appellant prosecute the Respondent in this case?
The evidence before the lower Court was that the Respondent was merely a suspect in respect of the stolen tripod belonging to the Appellant and the police was invited to take over the investigation of the case.
The decision to arrest the Respondent was that of the police and not the complainant i.e. the Appellant. The decision to
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prosecute was also taken by the police. It is therefore wrong for the Lower Court to hold that the Appellant prosecuted the Respondent through a counsel.
Exhibit F which is the record of proceedings showed that it was the police that prosecuted the Respondent.
In EZENDUKA VS MADUKA (1992) 8 NWLR Part 518 Page 635 at 668, it was held among others that: –
It is most elementary law that there cannot be agency relationship between a private citizen and a police officer in the performance of his police duties under Section 4 of the Police Act, Cap 20, Laws of the Federation of Nigeria, 1990 or any other enabling law to the same effect. The transient relationship between a complainant and a police officer in the course of arresting investigation and prosecuting a case does not in law ripen into an agency relationship.
In view of the foregoing, the lower Court was wrong when it held that the Appellant prosecuted the Respondent at the Magistrate Court. The Appellant was within his right to report to the police and suspect the Respondent due to the circumstances surrounding this case.
Another requirement is that has
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the Respondent shown that his prosecution at the Magistrates Court was without reasonable and probable cause?
There was evidence at the lower Court that the tripod belonging to the Appellant which has a U shape mark of the Appellant was stolen. The incident was reported to the police. Later, the Respondent went to supply equipments to the Appellant. He went to supply 8 equipments and out of the eight, one was suspected to be the stolen tripod of the Appellant which has the U shape mark of the Appellant. The police was then called in to investigate. The police later arrested and charged the Respondent to Court. With the scenario at the back of somebody’s mind, it could not be said that the arrest and prosecution of the Respondent was without reasonable or probable cause. The Appellant’s tripod was stolen, and it was later found that a tripod looking like the stolen one was among the supplies made by the Respondent to the Appellant.
It is my view that a reasonable man would want to find out how the Respondent came about the said stolen tripod. The prosecution therefore has a reasonable cause.
The last
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requirement is that the prosecution was malicious.
In this case, there is no evidence of malice from the Respondent on record.
On page 51 of the record of appeal, the Respondent under cross examination at the Magistrate Court stated as follows:-
……………………………………………………………..
…………. That day was not the first day I went to the defendant, I had no problem with the defendant previously.
…………………………………………………………………
It is very clear from the record and submissions of counsel for the parties that the prosecution of the Respondent was not actuated by malice.
In view of the foregoing, I am of the opinion that the Respondent has failed to prove the four requirements of malicious prosecution.
The last subhead to be considered under the issue for determination of this appeal is loss of tooth The Respondent alleged that he was beaten and this led to his loss of tooth. The counsel for the Appellant argued that the purported loss of tooth amount to an allegation of criminal assault occasioning harm under Section 355 of the
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Criminal Procedure Act, Cap C. 38 Laws of the Federation 2004.
He submitted that since it is a criminal allegation, proof beyond reasonable doubt is required.
He relied on the case of: –
– AROWOLO VS IFABIYI (2002) 4 NWLR Part 757 Page 356 at 363 – 364.
In his response, the learned counsel for the Respondent referred to the evidence before the lower Court where he stated that he was beaten and he lost a tooth as a result. He referred to the evidence of DW1 which he said corroborated the evidence of the Respondent.
He submitted that the Plaintiff/Respondent’s evidence on loss of tooth was direct and unequivocal and that it was further amplified by PW1s testimony when he stated that
On close examination, we discovered that he lost one upper tooth, he said he was brutalized and did not eat during the period of his detention by the police.
He relied on the cases of: –
– SEISMOGRAPH SERVICE LTD VS ONOKPASA (1972) 1 ALL NLR Part 1 Page 343;
– SEISMOGRAPH SERVICE NIG LTD VS AKPORUOVO (1974) 1 ALL NLR Part 1 Page 104 of (1974) 6 S.C. Page 119.
He finally urged this Court
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to hold that the lower Court did not err in law when it held the Appellant liable for the loss of the Respondent’s tooth. He urged that the appeal be dismissed.
Under the issue of loss of tooth, the Respondent alleged that he was beaten and this led to loss of tooth of the Respondent. But it must not be forgotten that this is an allegation of criminal assault occasioning harm under Section 355 of the Criminal Code Cap C. 38 Laws of the Federation 2004. Such an allegation requires proof beyond reasonable doubt under Section 138(1) of the Evidence Act.
A careful reading of the record of appeal which contained the evidence of the parties in this appeal showed that, the Respondent’s allegation that he was beaten was denied vehemently by the Appellant. The police too was alleged to have beaten the Respondent, which one now resulted in the loss of tooth? The medical evidence did not attribute the loss of tooth to the Appellant.
The lower Court held the Appellant liable for the Respondent’s loss of tooth when it held thus: –
The DW1 has not satisfied me as a witness of truth. The security men in a company like that will
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not spare a man accused of stealing company property.
(See page 84 of the record of appeal).
I am of the view that the decision of the lower Court set out above is a mere intuition not backed by any fact.
In SAGAY VS SAJERE (2000) 6 NWLR Part 661 Page 360 at 370, it was held among others as follows: –
The requirement that a judgment must clearly demonstrate that the conclusion arrived at in the case were not based on intuition and whim of the Judge but on evidence properly evaluated, and the law is not an insistence on mere form, but derives from the need to ensure and demonstrate that substantial justice has been done in the case.
In view of the foregoing, I am of the view that the cause of loss of tooth was not proved beyond reasonable doubt.
This Issue No. 1 in this appeal is therefore resolved in favour of the Appellant and against the Respondent.
In the result, this appeal succeeds and it is allowed. The Judgment of the Delta State High Court in Suit No. EHC/104/99 JOHN ARIEMUGHARE VS COMPAGNE GENERALE DE GEOPHYSIQUE NIG. LTD delivered on the 1st day of August 2007 is hereby set aside. In
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its place, the Plaintiff/Respondent’s claim at the Lower Court is hereby dismissed.
There shall be N100,000.00 (one hundred thousand Naira) costs in favour of the Appellant against the Respondent.
Other Citations: (2016)LCN/8908(CA)
