Uac of Nigeria Plc V. Prince O. O. Sobodu (2006)
LawGlobal-Hub Lead Judgment Report
ADAMU, J.C.A.
This is an appeal against the judgment of the High Court of Lagos State sitting at Ikeja Judicial Division delivered on 22/9/91.
In his judgment the learned trial Judge E. F. Longe, J held that the plaintiff/respondent was entitled to damages from the defendant/appellant for his unlawful arrest and detention by the police upon a report made against him by the said defendant/appellant (hereinafter called “the appellant”). The facts of the case giving rise to the appeal are as follows:-
The plaintiff/respondent (also hereinafter called “the respondent” was employed by the appellant as a sales clerk and he rose to become the Hardware Merchandise Controller before his employment. Before then, the appellant had discovered a fraud which took place in its hardware department of Kingsway Stores sometime before 13/6/85 whereby an amount over N800,000.00k was found to have been stolen. The appellant promptly reported the matter to the police and on 24/5/85; two plain-clothed policemen visited the respondent’s office where they thoroughly ransacked before they made him to take them to his residence at Surulere which they also searched. The two detectives subsequently took the respondent to Panti Police Station where they made him to make a statement after which he was detained for 3 days and he was released on 27/5/85. The said respondent was eventually arraigned in the Magistrate Court along with 15 others on charges of conspiracy, fraud and stealing. He was however discharged by the said Magistrate Court on 10/11/86. Upon his discharge and after some correspondences between his lawyer and the appellant who had terminated his appointment and refused to reinstate him, the said respondent instituted his action against the appellant claiming N 1,000,000.00k (One million naira) damages for wrongful termination of his appointment and a declaration that he still held a pensionable appointment with the appellant. He also claimed another N 1,000,000.00k (One million naira) for his unlawful arrest and detention by the police engineered by the appellant. After exchange of pleadings and at the conclusion of hearing at the trial court, judgment was delivered by the said court on 22/9/99. In the said judgment, the respondent was awarded N500, 000.00 (five hundred thousand naira) as damages against the appellant for unlawful arrest and detention of the respondent. It is against this judgment that the appellant is now appealing in this court. It’s original notice of appeal dated and filed on 23/9/99 was amended with an amended notice of appeal dated and filed on 31/12/03 containing 6 (six) grounds of appeal.
From it’s six grounds of appeal, the appellant in its brief of arguments dated on 31/12/03 and filed in this court on 2/1/04 distilled the following three (3) issues for determination in the appeal:-
“1. Whether on the evidence before the court the defendant is liable for the tort of false imprisonment?
- Whether on the evidence before the court the defendant is liable for the tort of malicious prosecution?
- Whether the damages awarded was justifiable.”
The respondent also filed a respondent’s brief, which though undated was filed on 4/11/02 in this court. In it, the following two (2) issues for determination are identified:
4.1 Whether the trial judge was right or justified in giving judgment on the claim for malicious prosecution rather than on that of false imprisonment.
4.2 Whether the trial Judge was right or justified in basing the measure or quantum of damages on the loss of reputation, or suffering of and human rights posture of the plaintiff while in the defendant’s employment.”
From the above two sets of issues, it appears that the parties are agreeable or have concurred on the issues for determination in the appeal. It must however be stated that at the hearing of the appeal, when their attention was drawn by the court that they have not related their issues to the grounds of appeal, their learned counsel have attempted to do so to our satisfaction before they adopted their respective briefs of arguments.
Under its issue No.1, it is pointed out in the appellant’s brief that the respondents relief (e) which was granted by the trial court (in its judgment) was for “unlawful arrest and illegal detention engineered by the defendant (appellant).” It is submitted that the claim implies the tort of false imprisonment.” The authority of Mandillas & Karaberis Ltd. v. Lamidi Apena (1969) ANLR 390 at 386 where the Supreme Court has held that for such a claim to succeed the plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against the former is cited and relied upon by the appellant. Thus by the interpretation of the above authority of the apex court, this court has on several occasions decided that it is not enough for the plaintiff to show or prove that the defendant has made a report against him to the police but he has to go further and show that the said defendant has mentioned his name as a person who committed the offence and also pressurized the police into acting against him see Onyedinma v. Nnite (1997) 3 NWLR (Pt.493) 333 – 344; Ezeadukwa v. Maduka (1997) 8 NWLR (Pt.518) 635 at 667; Abdullahi v. Raji (1998) 1 NWLR (Pt.534) 481 at 492; Nwadinobi v. Botu (2000) 9 NWLR (Pt.672) 220 at 228; Totor v. Aweh (2000) 7 NWLR (Pt.644) 309 at 321; and Iwunwah v. Iwunwah (1999) 13 NWLR (Pt.635) 425 at 431 and 435 cited in support of the submission. It is argued that in the present case, the evidence adduced by the respondent in proof of his allegation of false imprisonment against the appellant merely shows that his interrogation, arrest and detention by the police was as a result of the appellant’s report of fraud in the merchandise department to the police. There is no evidence by the respondent that his name was given or mentioned to the police as a culprit in the crime reported. (See the evidence of the respondent and DW 1 to that effect at pages 172 and 176 of the record of appeal). The brief points out that the onus of proof that he was specifically named by the appellant to the police as a culprit in the crime reported rests on the said respondent who has not discharged it by evidence. However despite the non-discharge of the burden of proof of his allegation by the respondent, the trial court wrongly drew its own conclusion, which is not supported by any evidence throughout the record. It is argued in the brief that without the requisite evidence in proof of his allegation or claim against the appellant, the respondents claim of false imprisonment must fail- see Balogun v. Labiran (1988) 1 NSCC 1056; (1988) 3 NWLR (Pt.80) 66 cited in support of the above argument.
In his reply to the above submission, the respondent in his brief under the issue on review states that the appellant has not proffered any satisfactory evidence for his defence at the trial court on the torts of false imprisonment and malicious prosecution leveled against him by the respondent. He merely denied the allegation by a general traverse (see clause 1 of the statement of defence). The effect of that general traverse is said in the respondent’s brief to cast the burden of proof on the plaintiff of the allegation so denied – see Warner v. Sampson (1959) 1 QB 297 at 310 cited in support of the respondent’s above argument. It is also submitted in the brief under review that the respondent’s claims against the appellant at the trial court (per his pleadings) are for both false imprisonment and malicious prosecution – see pages 142, 147 and 148 of the record of appeal. It is argued by the respondent that the police did not first smell a rat in their office and on their own went to the Hardware department of the appellant but they acted upon a report made to them by someone. The respondent being the manager or head of that department who is responsible and accountable to it, at the material time the mere report of crime in the department by the appellant is or amounts to a report against him. The appellant’s conduct of not issuing a query to the respondent before the arrest of the said respondent and its failure to investigate the truth of the facts stated by the said respondent (in exhibit 9) in answer to the query issued to him but instead terminated the laters appointment show the extent of malice it had against him. This malice is said to be sufficient to sustain his claim of malicious prosecution against the appellant. It is said that malice for the purpose of the claim can be either implied or constructive – see Payin v. Aliuah (1953) 14 WACA 267; Blacks Law Dictionary 7th Edition pp. 968 – 969 on the definition of implied or constructive malice cited in the brief on the contention. The authority of Madillas Karaberies v. Apena (supra) cited and relied upon by the appellant is said in the respondents brief to have been over ruled in Tims v. John Lewis & Co. Ltd. (1951) 2 KB 459 at 472, and John Lewis & Co. Ltd v. Tims (1952) AC 676; (1952) 1 ALL ER 1203 H.L. It is also contended that where a prosecution is commenced bona fide on the belief that the plaintiff is guilty but continued upon acquisition of knowledge of his innocence it will suffice to make the defendant liable in a claim for malicious prosecution – See Fyz. John v. Maclinder (1861) 9 C.B.N.C. 505 at 531 cited in support of the contention. It is stated in the brief that the appellant in the instant case allowed the prosecution of the respondent to continue after knowledge of his innocence from exhibit 9. Consequently, it is submitted in the brief, the judgment of the trial court in the present case ought to be upheld and the appellant’s appeal on this issue or point should be dismissed. In another arm of his submission under the issue, the respondent refers to exhibit 16 which is the DPP’S advice recommending the termination of the criminal charges against him at the Magistrate Court upon which he was discharged by the said Magistrate. It is submitted that such a discharge also amounted to an acquittal because it is categorically stated in the said DPP’S advice that there was no case against the respondent – see page 221 of the record of appeal; and Atkins v. Lee (1839) 5 M & W270 cited in support of the submission. On the two essential ingredients to be proved in a claim for malicious prosecution, it is the respondent’s submission that they were proved at the lower court. The ingredients are mentioned as: (1) The institution of the prosecution without a reasonable and probable cause and (2) that the defendant was acting with malice (whether actual, implied or constructive) -see Cornford v. Calton Bank Ltd. (1899) 1QB 392, cited in support of the preposition. DW 1 who gave evidence in favour of the appellant and stated that a mere report was made to the police without mentioning any name is said to be not in a position to know that as he was not the person who made the report to the police. Thus it is stated that the trial Judge who heard the witnesses and observed their demeanor rightly rejected DW1’s evidence and preferred the version of the respondent upon which he based his judgment. It is also pointed out by the respondent that the appellant did not act reasonably in causing the prosecution of the respondent because they did not issue him with a query before lodging their complaint against him and when they subsequently issued him with exhibit 8 (i.e. the query) and he replied (in exhibit 9) they did not investigate the truth of his defence but allowed the prosecution against him to continue until he was discharged by the Magistrate Court as a result of the DPP’s advice. Finally, the respondent urges us to resolve issues 1 and 2 of the appellant and issue 1 of the respondent’s brief in favour of the respondent and to affirm the judgment of the trial court.
At the tail end of his submission under his issue 1 (of his brief) the respondent indicated that his issue No.1 covers the appellant’s issues 1 and 2. It then becomes necessary for me to set out the appellant’s submission under his 2nd issue so that I can conveniently treat and resolve both the appellant’s issues Nos. 1 and 2 together as done in the respondent’s brief. In its argument or submission under their 2nd issue, the appellant points out that after refusing and dismissing all the respondent’s claims (a – d), the learned trial Judge granted their claim (e) as per their further amended statement of claim (at page 152 of the record). It is pointed out that the relief claimed by the respondent in that paragraph was for false imprisonment but in his judgment the trial Judge granted him a relief for malicious prosecution which he did not claim against the appellant. This is said to be contained at page 223 of the record where the learned trial judge stated that the damages he granted or awarded against the appellant or in favour of the respondent was for “unlawful arrest and detention by the Police when the defendant lodged a complaint of fraud against the plaintiff which led to the plaintiff’s being arraigned (sic) before the court of law.” Thus the learned judge included in the relief he granted under paragraph (e) another relief for malicious prosecution which was not the relief sought for by the respondent in his claim under paragraph(e). This court is therefore urged by the appellant to reverse that decision of the learned trial Judge on the ground that the court does not or cannot make out a case for a party which is different from the case he has made up for himself. It is also submitted that the court cannot or does not grant to a party a relief which he has not claimed as done in the present case – See Ekpenyong v. Nyong (1975) 9 NSCC 28; (1975) 2 SC. 71 Iwunwah v. Iwunwah (1999) 13 NWLR (Pt.635) 425 at 435; and Adeniran v. Alao (2001) 18 NWLR (Pt.745) 361 cited in support of the above submission of the appellant. It is further submitted that even if the trial court was justified in considering the appellant’s liability for the tort of malicious prosecution, the ingredients for the proof of the tort which are listed by the court itself are lacking or have not been established by the respondent in the present case and the learned trial Judge should have found the appellant not liable for malicious prosecution of the respondent. It is pointed out that for the plaintiff to prove or establish the claim for malicious prosecution against the defendant he must plead and adduce evidence of all the ingredients of the tort – see Balogun v. Amubikahun (1989) 3 NWLR (Pt.107) 18 at 26; Bayol v. Ahemba (1992) 8 NWLR (Pt.257) 104 at 109; Ejikeme v. Nwosu (2002) 3 NWLR (Pt.754) 356 at 370-371 cited in support of the submission.
It is argued that in the present case, the respondent did not prove that the appellant prosecuted him or set the law in motion towards his prosecution by merely making a report of fraud to the police without any evidence that the respondent’s name was mentioned or given by the appellant in its report to the police. Moreover, it is stated that the appellant who has a reasonable cause in making his complaint of fraud to the police as a result of fraud in its hardware department cannot be said to have any malice or ill-will against the respondent or any of the persons arrested or detained by the police as suspects in the alleged crime so reported. Consequently, it is argued that the conclusion or finding of the learned trial Judge of malice on the appellant’s part was erroneous and ought to be reversed. Finally the appellant stated that after making its report to the police, it has no control on their activities on the investigation or prosecution of the suspects. Therefore the finding of the learned trial Judge that it ought to have withdrawn the respondent’s name from those being prosecuted by the police after it received his explanation in exhibit 9 is based on mere assumption or speculation rather than on the evidence. This court is urged to reverse that conclusion or finding of the learned trial judge or to discountenance it.
In the reply brief, the appellant points out that its defence was not confined to mere traverse as alleged in the respondent’s brief rather, in paragraph 14 of the 4th amended statement of defence, it is expressly averred or pleaded that the arrest, detention and arraignment of the respondent before the Magistrate Court were carried out by the police independently of the appellant and without any instigation from them – see page 160 of the record. The case of Mandillas Karaberies v. Apena (supra) which the respondent said was decided per incuriam without regard to the dictum in the later case of Tim v. John Lewis & Co. Ltd. (supra) is said to be a misconception by the said respondent on our rules of precedent by which the Supreme Court’s decision in the former case supercedes any other decision by other Court’s including the decision of the House of Lords in England (as in the above dictum) which is of persuasive effect and is also inferior to that of the Nigerian Supreme Court in the earlier cited case of Mandillas & Karaberies (supra). Thus no court apart from the Nigerian Supreme Court can overrule or depart from the Supreme Court decision in that case. On the respondents assertion that DW 1 who testified for the appellant was not in a position to say that the respondent’s name was not mentioned as a culprit in the report made to the police, it is argued in the reply brief that the said DW1 was giving evidence as a representative of the appellant which was a corporate entity and was therefore entitled to testify as to things done in its corporate name even if he did not personally do or omitted to do such things. In any case, it is submitted in the reply brief that the respondent failed to prove or to discharge the onus on him that it was the appellant who named him as a culprit in the crime they reported to the police. Thus it is not the duty of the appellant to prove the contrary. I have given a careful consideration of all the above submissions under the appellant’s issues Nos. 1 and 2. It is not in dispute by both parties and as reflected in the record that the learned trial Judge has in his judgment refused and dismissed the respondent’s claims in paragraphs (a) – (d) of his 3rd amended statement of claim (at pages 144 – 152) – see also page 217 of the record where the learned trial judge stated as follows:
“…Therefore claims (a) – (d) in the amended statement of claim are hereby dismissed. The plaintiff then claims the sum of N 1,000,000.00 (One million naira) against the defendant for unlawful arrest and illegal detention engineered by the defendant which is an infringement of his fundamental rights to liberty and freedom. In effect the plaintiff is claiming for false imprisonment.”
However despite the above finding by the learned trial Judge based on the respondent claim (e) which is the last claim of the said respondent not dismissed by the said learned trial Judge, he found the appellant liable for the tort of malicious prosecution which is different from that of false imprisonment and was therefore not claimed by the said respondent in paragraph (e) of his 3rd amended statement of claim (supra). This blunder or wrong finding by the learned trial Judge is contained at page 221 of the record where he stated thus:
“However for allowing the complaint to the police to go on and culminated in the plaintiff being arraigned before the Chief Magistrate Court I believe there has been a malicious prosecution of the plaintiff.”
He then went ahead to consider the meaning of malicious prosecution and concluded (at page 222) that:-
“The plaintiff in this case is entitled to damages for the unlawful arrest and illegal detention by the police. This unlawful arrest and detention led to the prosecution of the plaintiff.”
From the above quoted statements of the learned trial Judge, it is very clear that he has found for the respondent and against the appellant a relief in respect of malicious prosecution which is different from that of false imprisonment which he himself had found or held was the effect of the claim of the said respondent under paragraph (e) of the 3rd amended statement of claim. Thus, in effect, the learned trial Judge wrongly granted to the respondent a relief which he did not claim (as per his paragraph (e)). In this regard, I agree with and accept the appellant’s submission that the court does not or cannot make out a case for a party which the said party has not made out for himself and neither can the court grant to a party a relief which he has not claimed as happened in the present case in the above quoted parts of the judgment of the trial court – see Ekpenyong v. Nyong (supra); Iwunwah v. Iwunwah (supra); Adeniran v. Alao (supra); IMN Ltd. v. Nwachukwu (2004) 13 NWLR (Pt.891) 543; PDP v. Taiwo (2004) 8 NWLR (Pt.876) 656; and Ngige v. Achukwu (2004) 8 NWLR (Pt.875) 383. It is therefore my humble view that by granting the respondent a relief based on malicious prosecution which the said respondent did not claim, the learned trial Judge has committed a grave error in law which has also led to a miscarriage of justice in the present case. It is also against the settled principle of law for the learned trial Judge to make a case for the respondent different from the case made out by the said respondent – see Archibong v. Ita (2004) 2 NWLR (Pt.858) 590; Akintola v. Oyelade (1993) 3 NWLR (Pt.282) 379; Abioye v. Yakubu (1991) 5 NWLR (Pt 190) 130, and Dzungwe v. Gbishe (1985) 2 NWLR (Pt.8) 528.
Although the two heads of tort of false imprisonment and malicious prosecution may sound similar and are interrelated in the sense that they are both bordered in the making of a false complain or charge against the plaintiff which may lead to his arrest or detention, they are however quite different even from their names. Where a complaint is made to a police officer and he makes an arrest or detention, the party making the complaint or charge is only for false imprisonment. On the other hand, if the complaint or charge is made before a Magistrate or a judicial officer who issues a warrant of arrest or a summons then the liability will be for malicious prosecution. However where a complaint or charge is made to the police and the defendant also instigates them to arrest the person complained against and make a formal charge against him before a Magistrate and prosecute him as in the instant case, then the liability is also for malicious prosecution because the police cannot be said to be allowed the freedom of action and the party making the complaint will be more damnified if the charge subsequently proves to be fabricated or if the person complained against is ultimately discharged by the Magistrate – see David Inneh v. Igumaka Aruegbon (1952) 14 WACA 73 at 74; Chief Ehiman, Payin & Anor v. Adiaba Aliuah & Anor (1953) 14 WACA 267; and Balogun v. Amubikahun (1989) 3 NWLR (Pt.107) 18 at 30.
With the above distinction between the two heads of torts vis-a-vis the finding of the learned trial Judge that the respondents claim No (e) before the trial court was for false imprisonment, it was an error on his own part to turn round and hold the appellant liable to the said respondent for malicious prosecution. This is moreso when there is no evidence of instigation of the police by the appellant. It was also wrong for the court in the instant case to cast the burden of proof on the said appellant by requiring it to prove that it did not instigate the police to prosecute the respondent. This in my humble view is a wrong placement of the burden of proof and is contrary to Section 135 and 137 of the Evidence Act (Cap. 112) LFN 1990. Which places the burden of proof in civil cases on the party who asserts or who would have failed if no evidence is adduced – see Sarah v. SGB (1995) 1 NWLR (Pt.371) 325 at 344 – 345; UBN Ltd. v. Penny – Mart Ltd. (1992) 5 NWLR (Pt.240) 228 at 242; Ibori v. Agbi (2004) 6 NWLR (Pt.868) 78 SC and SBN Plc. v. Opanubi (2004) 15 NWLR (Pt.896) 437. I accept the appellant’s submission that apart from the ipse dixit of the respondent at the trial court there is no evidence adduced to show that the appellant did any other thing or instigated the police to arrest, detain, search or prosecute the respondent at the Chief Magistrate Court II Ikeja. The only independent evidence before the trial court was that of DW 1 (an officer of the appellant) who stated that they only made a complaint of theft in the hardware department without mentioning the name of any suspected culprit. I do not see any reason why the learned trial Judge did not accept or rely on the testimony of the said DW 1 or why he regarded the witness as a person who is not in a position to make the testimony on the ground that he was not the person who lodged the formal complaint to the police. That is a lame ground and I agree with the appellant’s submission in the reply brief that the witness was in a very good position as an officer of the said appellant which as a corporate body can act through or be represented by its officers.
The ingredients to be established for the tort of malicious prosecution have been aptly pronounced upon by our Nigerian superior courts (including the Supreme Court) and we do not have to cross the sea and go to the English or European Courts to find them. It has been settled that for an action for malicious prosecution to succeed, the plaintiff must plead and prove the following:
(a) That he was prosecuted by the defendant, that is the defendant set in motion against the plaintiff, the law leading to a criminal charge.
(b) That as a result of the prosecution, the plaintiff was discharged and acquitted.
(c) That the prosecution by the defendant was completely without reasonable and probable cause.
(d) That the prosecution was a result of malice by the defendant against the plaintiff.
All the above ingredients must be proved concurrently in each case in order to establish liability for malicious prosecution – See Balogun v. Amubikahun (1989) 3 NWLR (Pt.107) 18 at P.26; Barau v. Chaba (1995) 1 NWLR (Pt.371 at 357; Horst Sommer & 2 Ors. v. Federal Housing Authority (1992) 1 SCNJ 73 at 80; (1992) 1NWLR (Pt.219) 548; Abdullahi v. Raji (supra); and Mandillas & Kereberies Ltd. v. Apena (supra).
In the instant case, the only element or ingredient that was established by the respondent is No.(b) in that it can be said that as a result of the prosecution of the said respondent by the police (rather than by the appellant) the former was discharged – though not acquitted. All the other ingredients for liability in the tort of malicious prosecution as adumbrated above (i.e. Nos. (a) (c) and (d) were not proved or established by the respondent at the trial court. Thus the appellant who merely made a report or complaint of theft in its hardware department without more, and without any follow up or instigation on the police or mentioning the name of the respondent as a possible or one of the culprits cannot be said or held as setting the law in motion against the said respondent leading to the laters prosecution. The police acted on their own volition in the arrest, detention or arraignment of the respondent before the Magistrate Court. The learned trial Judge has made a finding to this effect when he stated (at page 220) in his judgment as follows:-
“…Under the Police Act Section 4, the Police according to the defence counsel were just performing their duty by arresting and interrogating the plaintiff on an allegation of crime. I believe and agree with the defence to that extent, moreso when the Police are not a co-defendant in this case…”
Secondly, it cannot be said that the complaint of the appellant which led to the arrest and prosecution of the respondent was without a reasonable or probable cause when there was a fraud or theft in its hardware department which caused it a substantial loss or damage. Thirdly, there is no proof of malice against the appellant in making the complaint. Once it is accepted that the said appellant had a just reasonable or probable cause in making its complaint of fraud or theft to the police and that the later’s subsequent acts of arresting detaining, interrogating, or prosecuting the respondent were done independently without any instigation from the appellant, the ingredient of malice (in law or constructive) cannot be implied against him as wrongly done by the learned trial Judge. The learned trial Judge should have accepted the evidence of DW1 who was the only witness who testified on the absence of malice, or instigation on the part of the appellant. I therefore agree with the appellant’s submission that the decision in Mandillas & Karaberies Ltd. v. Apena (supra), is still a good law on the point as far as Nigerian Courts are concerned and cannot be overruled by any English authority or be treated as per incuriam merely because the House of Lords has given or made a dictum stating the contrary. If any thing, that foreign decision can only have a persuasive effect on our courts which under the doctrine of judicial precedent are bound by the decision of the apex court (the Supreme Court). Thus it is only the Nigerian Supreme Court that can overrule itself or depart from its earlier decision in Mandillas & Karaberies Ltd. v. Apena (supra) – see Adisa v. Oyinwola (2000) 10 NWLR (Pt.674) 116.
For my above consideration of the appellant’s issues Nos 1 and 2, the said issues and their related grounds must be resolved in favour of the said appellant and against the respondent. They are accordingly hereby so resolved.
Under the 3rd issue of the appellant which corresponds with the 2nd issue of the respondent, the complaint is against the damages of N500, 000.00 (Five hundred thousand naira) awarded to the respondent for his malicious prosecution and false imprisonment by the appellant. It is stated in the brief that the award was said to be for the pains and suffering suffered by the said respondent on the event of his unlawful arrest, detention and prosecution caused by the appellant. It is pointed out in the brief that the award should have been based on his financial loss and his reputation or position in the society. It is pointed out that by the assessment of the respondent’s annual earning of N32, 316.00 as made in paragraph 46A of the statement of claim (at page 137 of the record), the award of N500,000.00 by the learned trial Judge was too excessive and therefore unjustified. We are called upon by the appellant to interfere with this erroneous award by the trial court and to review it in line with the principle in Balogun v. Labiran (1988) 1 NSCC 1056; (1988) 3 NWLR (Pt.80) 66.
In the respondent’s reply, on the above submission of the appellant, it is stated that the issue of the award of damages for false imprisonment and malicious prosecution is at the discretion of the court and is not measured by the salary earned by the plaintiff – see Mac Gregor on Damages 12th edition, chapter 18 at page 411 referred to in the respondent’s brief. It is conceded in the brief that if this court finds that the respondent’s claim is proved only on false imprisonment, it can use its discretion to vary the damages awarded by the learned trial Judge. However on the other hand if this court finds that the damages were awarded in respect of malicious prosecution, the amount awarded is not too much and should be upheld by this court.
I have considered the above submission on issue 3 of the appellant’s brief. From the respondents claim under paragraph (e) of his statement of claim and from the assessment of the damages awarded by the learned trial Judge in his judgment (at pages 222 – 223) it is clear that the damages so awarded was a general damages which was described as flowing from the event. It is trite that such general damages which flow from the event (i.e. from the defendant’s act) are generally presumed by the law and they need not be pleaded or proved. It is also the law that such damages and their award or assessment are based on the discretion of the court which like all other discretion are required to be exercised judiciously and judicially. Where there is an appeal against the exercise of such discretion by the trial court, an appellate court is normally reluctant in interfering with the trial court’s bona fide exercise of discretion unless in some exceptional cases which include:-
(a) Where the exercise of discretion by the trial court was done arbitrarily rather than judiciously or judicially.
(b) Where the trial court’s exercise of discretion was based on a wrong principle of law.
(c) Where such an exercise of discretion was not based on the evidence on record and was therefore perverse.
(d) Where in its exercise of discretion the trial court took into account or considered irrelevant matters or disregarded relevant matters.
(e) Where the lower court’s exercise of discretion is erroneous that no reasonable tribunal would have made such an erroneous exercise of discretion – see Ziks Press Ltd. v. Ikoku; (1951) 13 WACA 188; PDP v. Taiwo (supra); Bulama v. FRN (2004) 12 NWLR (Pt.888) 498; CGC (Nig.) Ltd. v. Saba (2004) 10 NWLR (Pt.882) 658; Balogun v. Amubikahun (supra) at p.38 of the report; Osuji v. Isiocha (1989) 3 NWLR (Pt.111) 623 a 636 637, and William v. Daily Times Nigeria Ltd. (1990) 1 NWLR (Pt.124) 56.
The above principles and authorities on the exercise of discretion by the trial court also apply to cases on the award or assessment of general damages by the trial court as in the instant case – see Barau v. Choba (supra); at p.373 of the report); Williams v. Daily Times Nig. Ltd. (supra); USA Plc. v. BTL Industries Ltd. (2004) 18 NWLR (Pt.904) 166.
In view of my above consideration of the appellant’s issue No. 3. I am inclined to prefer the respondent’s submission on the issue. Thus the appellant has not proffered any good or convincing reasons or ground for this court to interfere with the assessment of damages made by the learned trial Judge. Consequently the issue and its related ground of appeal must be resolved against the said appellant and in favour of the respondent.
On the whole and in view of my resolution of the 1st and 2nd issues of the appellant which are the main issues in this appeal in its favour, its appeal has succeeded and should be allowed. I accordingly, hereby allow the appeal which I find meritorious. The judgment of the trial High Court dated 31/8/99 and the damages awarded therein are hereby set aside and the respondent’s action before the said trial court is hereby dismissed.
I asses the costs of this appeal at N 10,000.00 which I award in favour of the appellant and against the respondent.
Other Citations: (2006)LCN/1954(CA)
