Mighty Plastic Industry Limited V. Benneth Okeke (2016)

LawGlobal-Hub Lead Judgment Report

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. 

 This is an appeal against the decision of the Anambra State High Court, Onitsha Judicial Division sitting at Onitsha (hereinafter referred to as the lower Court), delivered by Hon. Justice C. E. K. Anigbogu, J. on the 10th day of October, 2006.

The action in question was commenced by the plaintiff/respondent against the appellant/defendant for wrongful termination of his employment, false imprisonment and malicious prosecution wherein the plaintiff/respondent claimed against the defendant/appellant as follows:
?Special Damages:-
(a)(i) N2,500.00 monthly salary from 1st February, 1995 to 31st May 1995… N10,000.00k.
(ii) Counsel?s professional fees… N40,000.00
(iii) 6 weeks pay for each year at N 3,750.00 per year for 14 years… N51,500.00
(iv) One month?s salary for Christmas… 1995 bonus N 3,500.00
(v) One month?s salary in lieu of notice ?.. N 2,500.00
(vi) One month?s salary in lieu of 1995 leave ? N 3,500.00
?(vii) One month?s salary as allowance

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for 1995 leave ? N 3,500.00
(viii) Hospital allowance at N200.00 per month for 14 years… N33,600.00
= N148,000.00
(b) N3,500.00 monthly salary from 1st June, 1995 until judgment in this case.
General Damages:
(a) Damages for malicious prosecution ? N2,980,000.00
(b) Loss of use of 3 plastic rubber drums of 200 litres, 140 litres and 60 litres from 11/2/95 to 11/7/96… N20,000.00

Parties duly filed and exchanged pleadings. The plaintiff/respondent called a single witness in addition to himself in his bid to prove his claim; while the defendant/appellant also called a single witness. At the close of hearing, learned counsel to both parties addressed the Court and at the end of it all, judgment was entered in favour of the plaintiff/respondent and damages awarded by the learned trial judge in the following terms:
Damages for wrongful dismissal will therefore be assessed as the lost earnings, from the date of his arrest and detention on 23/2/95 to the 11th of March 1996 that is a period of twelve months at the N2,500.00 per month, which is N30,000.00.
?On his

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claim for false imprisonment, the plaintiff is entitled to N300,000.00. He is equally entitled to his solicitor?s fees at N40,000.00 and damages for malicious prosecution N400,000.00?

The defendant/appellant being dissatisfied with this decision caused an appeal to be filed against it on the 7th day of December, 2006 vide a notice of appeal dated the 5th day of December, 2006; wherein the appellant challenged the decision on eight (8) grounds of appeal. The plaintiff/respondent shall hereinafter in this judgment be referred to as the respondent while the defendant/appellant shall be called the appellant. The grounds of appeal without their particulars are as follows:
?3.GROUNDS OF APPEAL
?1. The learned trial judge erred in law when he refused to hear and determine the application of the Defendant/Appellant for amendment of his statement of defence before proceeding to dismiss same?.
2. The learned trial judge erred in law when he found the Defendant/Appellant liable for false imprisonment when the elements of the tort of false imprisonment were neither pleaded nor proved against the

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Defendant/Appellant.?
?3. The learned trial judge misdirected himself in law when he wrongly placed the burden of proving some elements of false imprisonment on the Defendant/Appellant instead of the Plaintiff/Respondent.?
?4. The learned trial judge erred in law when he held the Defendant/Appellant liable for malicious prosecution and awarded damages against him when the Plaintiff/Respondent failed to prove the elements of malicious prosecution.?
?5. The learned trial judge erred in law when he held as follows: ?The ruling of that Court to my understanding amounted to an acquittal of the complainant did not go to Court to prove the case against the accused who is plaintiff in the present suit.?
?6. The learned trial judge erred in law when he relied on the case of Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 558 to hold the Defendant/Appellant liable for wrongful dismissal of the Plaintiff/Respondent when there was no evidence of wrongful dismissal.?
?7. The learned trial judge erred in law when he awarded special damages against the Defendant/Appellant when

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same was not proved as required by law.?
?8. The judgment is against the weight of evidence.?

In this Court, the learned counsel to both parties filed their respective briefs of argument. The appellant?s brief of argument was prepared by A. O. Odum Esq. It was filed on the 14th day of April, 2014. The respondent?s brief of argument, on the other hand, was prepared by Chief H. B. Onyekwelu. It was filed on the 6th day of February, 2014. It was thereafter deemed as having been properly filed and duly served with the leave of this Court sought and granted on the 14th day of April, 2014.

The learned appellant?s counsel towards determination of this appeal, distilled four issues for determination. The issues are as follows:
?1. Whether or not the proposed amendments by the appellant were consequential and, if at that stage of the proceedings, it would have prejudiced, overreached or entailed substantial injustice to the plaintiff/respondent. (Ground one of the Grounds of Appeal.)
2. Whether the decision of the trial judge as to the wrongful termination of the respondent?s employment is valid

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without an evaluation of the legal character of the contract of employment or the terms of service verified in evidence. (Ground 6).
3. Whether or not there was a fundamental misdirection in law in the approach of the trial Court when it failed to avert its mind to the specialized nature of the torts of false imprisonment and malicious prosecution in the proceedings before it. (Ground 2, 3, 5 and 6).
4. Whether or not, the award of a summarily evaluated special damages to the respondent and an arbitrarily imposed general damages can be justified in law in the circumstances of the instant case (Grounds 7 and 8).?

The learned counsel to the respondent on his own part in the said respondent?s brief of argument, adopted the issues formulated in the appellant?s brief of argument.

Before I proceed, it is instructive to state that grounds of appeal and issues formulated therefrom are required to emanate from the judgment being appealed against. That is, an appeal can only lie against the ratio decidendi of the judgment being appealed against. Thus, an order or other decisions (as the case may be) which do not form any part of the

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judgment, cannot transform or transmute as part of the grounds in the notice of appeal. In the instant case, an order dismissing or refusing the appellant?s motion for amendment of statement of defence, was an interlocutory decision which do not form part of the final judgment of the lower Court.
It is a trite principle of law, that where a ground or grounds of appeal does not or do not emanate or is based on ratio decidendi of the judgment, the said ground(s) and issue(s) formulated therefrom goes to no issue and are liable to be struck out. Thus, ground one of the grounds of appeal and Issue 1 formulated therefrom are hereby discountenanced and accordingly struck out.

I have carefully examined the printed records placed before us; the grounds of appeal and issues formulated therefrom, and I am of the view that Issues 2, 3 and 4 formulated by the learned appellant?s counsel are sufficient for the determination of this appeal. However, for proper clarity, the issues would be reconstructed as follows:
1. Whether the respondent successfully proved wrongful termination of his employment as to entitle him to the damages claimed and

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awarded?
2. Whether the case of false imprisonment was successfully established against the appellant?
3. Whether the case of malicious prosecution was established against the appellant?

ISSUE 1
The learned counsel to the appellant submitted that a master is entitled to dismiss his servant from his employment for good or bad reasons or for no reasons at all, and that where parties have reduced the terms and conditions of service into an agreement, the conditions must be observed. He referred us to the cases of Osagie v. N.N.B. Plc (2005) All FWLR (Pt. 257) 1485 @ 1505; Iderima v. R. S. C. S. C. (2005) All FWLR (Pt. 285) 431 @ 446 ? 447; among others.

?The learned appellant?s counsel also submitted and rightly so, that in an action for declaration for wrongful termination of employment, the plaintiff (respondent in this case) has the burden to plead and prove the following:
?1. That he is the employee of the defendant/appellant;
2. How he was appointed and the terms and conditions of his appointment;
3. Who can appoint and remove him;
4. The circumstances under which his appointment can be

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terminated;
5. That his appointment can only be terminated by a person or authority other than the Defendant/Appellant.?
He referred us to the case of N.N.P.C. v. Olagbaju (2006) All FWLR (Pt. 334) 1855 @ 1871.

The learned counsel further contended that the respondent failed and/or neglected to prove most of the above ingredients, yet, the lower Court entered judgment in its favour. He thereby urged this Court to set aside the decision of the lower Court in this respect for not being in line with the current binding authorities or legal position. He referred us to the cases of: Federal Mortage Finance Ltd. v. Ekpo (2005) All FWLR (Pt. 248) 1667 @ 1681; Jombo v. P.E.F.M.B. (2005) All FWLR (Pt. 280) 1430 @ 1446; NNPC v. Olagbaju (supra).

The learned counsel for the respondent after giving a chronicle of evidence adduced in the case, submitted that the appellant who alleged that there are conditions for the respondent?s service to the appellant has the burden to prove it or tender documentary evidence in that respect.

?The learned counsel also contended that the respondent gave evidence that he was in the employment of the

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appellant. That the employment was terminated due to unsubstantiated criminal allegation. Also, that the said termination was wrongful. Additionally, that the appellant was ordinarily required in law to wait for the outcome of the criminal trial before the respondent could be validly discharged from his appointment at least, legally.

It is elementary in law that a plaintiff has the burden and/or responsibility to prove his claim in Court before he could be held to be entitled to the relief(s) being sought. This position of the law is better captured in the words of Hon. Justice Pats-Acholonu, JSC. (of blessed memory) in the case of Obasi Bros. Co. Ltd. v. M.B.A.S. Ltd. (2005) 9 N.W.L.R. (Pt. 929) 117 @ 129, where His Lordship stated as follows:
?Did the appellant as the Plaintiff discharge the burden of proof placed on him. In other words, to have the judgment of the Court in its favour it must place before the Court weighty and substantial evidence which would outweigh whatever the respondent placed before the Court. The law is that the facts elicited from the evidence of the plaintiff should on balance decide in his favour.?

?Thus,

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the law is trite that, when an employee complains that his employment has been wrongfully terminated, he has the onus to:
1. Place before the Court the terms of the contract of employment; and
2. To prove in what manner the said terms were breached by the employer.
Indeed, it is not the duty of the employer who is a defendant to an action brought by an employee, to prove any breach of contract of employment. See Iwuchukwu v. Nwizu (1994) 7 NWLR (Pt. 357) 379; and Ibama v. S.P.D.C. (Nig.) Ltd. (2005) 17 NWLR (Pt. 954) 364 @ 378.

In the instant case, the respondent made no attempt to tender any document or give any evidence as to the terms of his engagement with the appellant, and also failed to demonstrate in evidence how the said terms were breached. He only asserted and led evidence to show that he was formerly in the employment of the appellant and that he was subsequently relieved of his duty, without more. Even an attempt by that appellant to tender an alleged letter of appointment of the respondent was rebutted by the respondent, thereby resulting in the document being rejected by the lower Court.

?Also, the respondent failed

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and/or neglected to prove or show any evidence as to the terms of notice to which he is entitled before his appointment with the applicant could be validly terminated. Again, the respondent did not give any evidence whatsoever to show exactly when his appointment was terminated or that he was being owed any salary before the termination.

In the light of the above, I am of the firm view and agree with the learned counsel to the appellant that the respondent has failed woefully to prove that his employment was wrongfully terminated and to show that he was entitled to the special damages awarded to him by the learned trial judge. Thus, this issue is hereby resolved in favour of the appellant.

?ISSUE 2
It is the contention of the learned counsel to the appellant that the appellant merely made complaints to the police, but there was no evidence on record to suggest or hold that the appellant actually ?set in motion police action to harass the respondent without cause.? The learned counsel also contended that the steps taken by the appellant towards making complaints to the police was borne out of professional duty and not any other

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ulterior motive. The learned counsel further submitted that ?Assuming without conceding that even after the complaint or charge is made to the police, the Appellant also instigated them to make a formal charge against the respondent complained to before a magistrate and prosecute him; the liability can still not be for one other than malicious prosecution.? He referred us to the case of U.A.C. (Nig.) Plc. v. Sobodu (2006) All FWLR, (Pt. 329) 877 @ 892.

Also, the learned counsel contended that even though the appellant made complaint to the police, it did not instigate the prosecution of the respondent. The learned counsel maintained that, the only condition on which the appellant could be held liable for false imprisonment is when it unlawfully and without reasonable reason detain the respondent in its private capacity; which was not the case of the respondent. He referred us to the case of Igali v. Lawson (2005) All FWLR. (Pt. 262) 567 @ 578. Furthermore, the learned counsel contended that the arrest, detention and prosecution of the respondent was done purely in line and or within the functions of the police and/or powers as authorized

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under Section 4 of the Police Act. Cap. P. 19, L.F.N., 2004.

Again, the learned counsel contended that the lower Court (with due respect) was in error to have relied strict senso/suo motu on the police extract (Exhibit D) without inviting the parties to address it on that, especially on the fact that the content of the extract was radically different from what the Court found and ruled on.

The learned counsel thereby urged this Court to interfere with the findings of the lower Court and find for the appellant, especially on the fact that the judgment of the lower Court was sparse in its assessment and evaluation

The learned counsel for the respondent on his own part, defined false imprisonment as a complete deprivation of the liberty of an individual for a time, however, short without lawful cause. He referred us to the case of Bird v. Jones (1845) 7 Q. B. 742. He submitted also that ?anyone who helps to continue a wrongful detention is guilty of a false imprisonment, though he was not responsible for the original wrong.? The learned counsel submitted further, that a party may also be liable for false imprisonment on the acts of

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other person(s) who acts or purportedly to act on his behalf. If he either expressly authorized or subsequently ratified the acts of the person(s). It is also the submission of the learned counsel that a person may nevertheless, in certain cases or circumstances be vicariously ?liable for the tort of another, even though he has neither authorized nor ratified the tort.?

It is also the submission of the learned counsel that D.W.2. being an employee (that is, servant) of the appellant (who is a master); the appellant is responsible and liable for the tortuous act(s) of D.W.2. He referred us to the cases of Poland v. Parr (John) & Sons (1927) 1.K.B. 216, 240; Warren v. Henlys Ltd. (1948) A.E.R. 935, 977; and Century Insurance Co. v. Northern Ireland Road Transport Board (1942) A. C. 509.

Furthermore, the learned respondent?s counsel submitted that even though police are ordinarily authorized by virtue of Section 4 of the Police Act, (supra) to make arrest and detain on the suspicion of crime being committed; but if it exceeds its power, it would be held liable for any wrong committed thereto. He referred us to the case of Canadian

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Pacific Wine Co. v. Tuley (1921) 2 A.C. 417. He submitted also that a person has the fundamental right to inform or report any criminal act or preparation to launch such a criminality, to the police. It is left for the police to determine whether to take action or not. He referred us to the case of Iwunwah v. Iwunwah (1999) 13 NWLR (Pt. 635) 425 @ 431. However, where a party had expressly or impliedly directed the police to take the respondent into custody, these amounts to imprisonment by the party and an action in false imprisonment can be maintained. He relied on the case of Mclaren v. Jennings (2003) 3 NWLR (Pt. 808) 470 @ 484.

An action for false imprisonment may lie against the party who unlawfully caused the imprisonment of the other party. The imprisonment for which the action for false imprisonment lies must be the direct act of the defendant or someone for whose act, the defendant is liable or the result of the order of the defendant. See the case of Iwunwah v. Iwunwah (supra). In the light of the above, the pertinent question that needs to be asked and answered is whether the police were acting on the actual direction or authorization of the

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defendant? My answer to this poser would be in the negative. This is because the Nigeria Police are independent agency and by virtue of Section 4 of the Police Act are empowered to make an arrest and detain suspect(s) (when necessary). However, the police are not subject to the direction or authorization of private individuals in the discharge of their statutory duties. Thus, mere information given to the police on which the police acted on their own initiative is not a ground for liability against the informant.
This position has been severally reiterated by this Court and the Apex Court. Indeed, this standpoint has been captured in the decision of my noble Lord, Nsofor, JCA, in the case of Iwunwah v. Iwunwah (supra) while quoting extracts from the decision of Justice Quashie-Idun, C.J. (as he then was) in the case of Kofi Gbajor v. James Ogunbureji (1961) All NLR 853 @ 856, stated as follows:
?It is the duty as well as the right of every citizen to bring to the notice of the police either a report or a specific complaint against persons who are suspected or alleged to have committed offences. It is a matter for the police to decide what

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action they should take on the report or complaint. If the police decide on an action on their own initiative which is ultimately proved to have been detrimental to the person against whom the complaint or report is made, the citizen cannot be held responsible. If the citizen were to be held responsible where he has not taken the law into his own hands, the duty of investigating and defecting crimes by the police would not only be extremely difficult but efforts of the police would be abortive.?

In the instant case, the parties are ad idem that the appellant was responsible for making the complaint to the police. However, I do not agree that the appellant was responsible for the arrest, detention and prosecution of the respondent. These duties are purely the administrative functions of the police and form part of their statutory powers. Also, I agree with the learned counsel to the appellant that even though the appellant after making the complaint to the police, ?instigated them to make formal charge against the respondent? and the respondent was as a result prosecuted, the liability of the appellant can still not be for false

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imprisonment, but for malicious prosecution (subject to other ingredients of the offence being proved). In the light of the above, this issue is hereby resolved in favour of the appellant.

ISSUE 3
The learned counsel to the appellant contended that the claim of the respondent in this regard, both in his pleadings and evidence did not disclose a cause of action talk less of liability on the part of the appellant for malicious prosecution. The learned counsel submitted in essence that in order for an action for malicious prosecution to be successful the plaintiff must plead and prove the following ingredients:
1. That he was prosecuted by the appellant, that is, the appellant set in motion against the respondent, the law leading to the criminal charge and subsequent prosecution.
2. That at the end result of the prosecution, the respondent was discharged and acquitted;
3. That the prosecution by the appellant was completely without reasonable or probable cause.
4. That the prosecution was activated or instigated as a result of malice by the appellant against the respondent.
He cited and placed reliance on the case of Balogun v.

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Amubikanhan (1985) 3 NWLR (Pt. 11) 27.

The learned counsel further contended that the lower Court relied on the above decision but misdirected itself (with due respect) in the evaluation of the respondent?s pleadings and evidence. Again, he contended that all the ingredients of the respondent?s claim were not successfully proved, yet the lower Court found in favour of the respondent. Thus, he urged this Court to dismiss the case of the respondent on this issue and allow this appeal.

The learned counsel for the respondent responded on this issue with the submission, that ?an action for malicious prosecution is founded on setting a judicial officer in motion.? He went further to argue that the appellant was responsible for the prosecution of the respondent. Relying on the case of Balogun v. Amubikanhan, (supra,) he submitted that in order to be successful in an action for malicious prosecution the plaintiff must prove the following:
a. That he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge;
b. That the prosecution was determined in his favour;
c.

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That it was without reasonable or probable cause;
d. That it was malicious.

The learned counsel demonstratively relying on the evidence on record submitted that, all the above has been sufficiently and successfully established by the respondent in accordance with the law. He cited and relied on the cases of Craig v. Hassell (1843) 4 Q. B. 481 @ 492; Stapeley v. Ametts (1970) 1 WLR 20; Olarewaju v. Afribank Nig. Plc. (2001) 13 NWLR (Pt. 731) 691.

He submitted finally on this point that the claim of, ?malicious prosecution was pleaded and met all the necessary legal requirements. The evidence thereof the respondent and his witness confirmed the pleadings.? Thus, ?the trial Court conducted the case according to the facts of the law and came to a just judgment.?

?Towards the resolution of this issue, let it be reiterated that the law is trite, that in an action for malicious prosecution, the plaintiff must prove the following ingredients:
i. That he was prosecuted by the defendant. In this regard, it must be shown clearly that the defendant set the law in motion against the plaintiff leading to a criminal charge;<br< p=””

</br<

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ii. That as a result of the prosecution aforementioned, the plaintiff was tried by a Court of competent jurisdiction and eventually discharged and acquitted;
iii. That the prosecution of the plaintiff was completely without reasonable and probable cause; and
iv. That the prosecution was as a result of malice by the defendant against the plaintiff.
See Ishola v. Ishola & Anor. (2014) LPELR-CA/1/45/2009; Balogun v. Amubikanhan, (supra); Ojo v. Okitipupa Oil Palm Plc. (2001) 9 NWLR (Pt. 719) 679.
All the four elements stated above must be established in order to procure a successful action for malicious prosecution and the onus is always on the plaintiff to prove each and every one of them. See Ojo v. Okitipupa Oil Palm Plc. (supra); C. C. B. (Nig.) Ltd. v. Odogwu (1990) 3 NWLR (Pt. 140) 646.

In the instant case, it is not in dispute that the complaint was made to the police by the appellant who was thus vicariously liable thereto. Also, the respondent was tried by a competent Court of law and the case somewhat ended in his favour. The appellant argued that the case was not determined on its merit, but merely on technical grounds,

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thus, the respondent cannot be said to have been validly discharged. I agree with the submission of the learned appellant?s counsel that the case was in fact not determined on merit, but struck out for want of diligent prosecution, subject to the prosecutor?s right to re – institute the charge. This cannot by any means be held to have amounted to a ?discharge and acquittal? as required by law. It has earlier been stated in this judgment, that in order for a plaintiff to succeed on a case of malicious prosecution, all the four (4) ingredients listed above must be established conjunctively. Therefore, the respondent?s failure to establish that he was in fact discharged and acquitted in respect of the said ?malicious prosecution? is fatal to his case. In the premise, this issue is hereby resolved in favour of the appellant.

On the whole, the issues formulated and adopted in resolution of this appeal, having been resolved in the manner stated above, this appeal is hereby found by me to be meritorious and it is accordingly allowed. The judgment of the lower Court in Suit No. 0/384/96 which was delivered on the 10th day

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of October, 2006 is hereby set aside. No order is made with regard to costs.

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Other Citations: (2016)LCN/8640(CA)