Post on 26-Aug-2018
OKOLO & ANOR v. OBI
CITATION: (2017) LPELR-44039(CA)
In the Court of AppealIn the Makurdi Judicial Division
Holden at Makurdi
ON WEDNESDAY, 24TH MAY, 2017Suit No: CA/MK/9/1998
Before Their Lordships:
JUMMAI HANNATU SANKEY Justice, Court of AppealONYEKACHI AJA OTISI Justice, Court of AppealJOSEPH EYO EKANEM Justice, Court of Appeal
Between1. JONATHAN OKOLO2. CYPRIAN AMADI - Appellant(s)
AndUJU OBI - Respondent(s)
RATIO DECIDENDI1. APPEAL - BRIEF OF ARGUMENT: Effect of failure to advance argument in respect of an issue or preliminary objection in a brief
"The parties exchanged Briefs of Argument. The Amended Appellants' Brief, which was filed on 1/7/2003, was adopted by G. Ofodile Okafor, Esq. SAN on 6/3/2017. The Respondent's Brief, in which a Preliminary Objection wasraised, was filed on 6/2/2006 but deemed properly filed and served on 7/2/2006. The Appellant filed a Reply Brief on 20/2/2006. The Respondent was served through her Counsel, R.S.M. Adebayo, Esq., with Hearing Notice on2/3/2017 for the hearing of the appeal. At the hearing of the appeal on 6/3/2017, the Respondent and Counsel were absent, and there was no explanation for their absence before the Court. The Respondent's Brief was,nevertheless, deemed argued pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules, 2016.The Respondent did not appear to argue the Preliminary Objection raised in the Respondent's Brief. In consequence, Learned Senior Counsel for the Appellant urged the Court to strike out the Preliminary Objection. In a similarsituation, the Supreme Court, per A. M. Muktar, JSC (as he then was) in Carew v. Oguntokun (2011) LPELR-9355(SC) said:"It is a cardinal principle of law that any process that is filed in Court, and which the party who has filed it has not deemed it necessary to pursue, either by taking further steps or doing certain things like moving the Court, incompliance with requirements of the law, as in this case, the Court will be correct to assume that the process has been abandoned by the party, and so deem the said process as duly abandoned. (In this case the preliminaryobjection) ...the appellant having abandoned her preliminary objection in the Court of Appeal cannot complain that the Court refused to pronounce on it."Contributing to the decision of the Supreme Court in the earlier case of Lagga v. Sarhuna (2008) 6-7 S.C. (Pt. 1) 101, (2008) LPELR-1740(SC), I. F. Ogbuagu, JSC said:"... a notice, of preliminary objection, can be given in the respondent's brief. But a party filing it in the brief, must ask the Court for leave to move the notice, before the oral hearing of the appeal commences otherwise, it will bedeemed to have been waived and therefore, abandoned."See also: Oforkire v. Maduike (2009) 1 SCNJ 440; Opobiyi v. Muniru (2011) LPELR-8232(SC). In the instant appeal, notwithstanding the service of Hearing Notice for the hearing of this appeal, neither the Respondent nor her counselhas appeared to be heard in respect of the process filed. While, by virtue of Order 19 Rule 9(4) of the Court of Appeal Rules, 2016, this Court is empowered to deem the Respondent's Brief as duly argued, there is no such provisionregarding a preliminary objection. In this circumstance, I agree with learned senior counsel for the Appellant that the Preliminary Objection of the Respondent ought to be discountenanced as having been abandoned. Thepreliminary objection is accordingly hereby struck out." Per OTISI, J.C.A. (Pp. 4-6, Paras. B-F) - read in context
2. APPEAL - INTERFERENCE WITH FINDING(S) OF FACT(S): Circumstances in which an appellate court will interfere with the findings of facts made by a lower court"In examining the evidence adduced before the trial Court, it is important to bear in mind that an appellate Court will not ordinarily substitute its own view of the evidence for that of the learned trial Judge except in prescribedcircumstances. An appellate Court may, in the interest of justice set aside findings of fact made by a trial Court where such findings cannot be regarded as resulting from the evidence or the findings are not based on the fact of thetrial judge having seen and heard the witnesses or from conclusions from demeanour in the witness box;Aigbotosho v. Governor, Oyo State (1992) LPELR-2570(SC); Olabanji v. Omokewu (1992) LPELR-2541(SC). In his commentsregarding the issue of whether and when an appellate Court should reverse the findings of a trial Court, Oputa, JSC, in Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301, (1988) LPELR-720 (SC), restated some guiding principles asfollows:"1. Ordinarily it is not the function of an Appellate Court to disturb the findings of fact of the trial Court - the Court that saw the witnesses, heard them testify, and believed one side while disbelieving the other. This is the firstprinciple - the general principle...2. Where the trial Court gave reasons for making the findings it made, an Appellate Court will be fully in order if it proceeds to look at those reasons and if the reasons are not satisfactory, as in the case on appeal, the AppellateCourt will come to the conclusion (as was done in this case) that any advantage enjoyed by the trial Court by reason of having seen and heard the witnesses was not and could not be sufficient to explain or/and justify the trialCourt's conclusions. An appellate Court has jurisdiction to look at the evidence on record to see whether they justify the conclusions of the learned trial judge...3. Where the real issue does not revolve around the credibility of the witnesses who testified, as much as on the inferences to be drawn from proved or admitted facts, or facts as found by the trial Court, an appellate Court has fullliberty to draw its own inferences and should not be deterred from that duty to thus make up its own mind, not disregarding, of course, the judgment appealed against but giving it, its due weight...4. Where the trial judge proceeded on a wrong assumption as to the onus of proofthis misapprehension and wrong assumption may affect the learned trial judge's views on the evidence and on his conclusions. There an appellate Court will be perfectly justified to intervene.5. Where the trial Court did not consider the entire evidence there, its conclusions are bound to be faulty and erroneous and an appellate Court will intervene to correct such error..."Per OTISI, J.C.A. (Pp. 10-12, Paras. A-B) - read in context
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3. TORT - MALICIOUS PROSECUTION: Circumstances where a defendant would be liable for malicious prosecution"When a report is made to the police against a plaintiff, and the defendant instigates his arrest and or detention, a complaint of false imprisonment could arise. When the report or charge, as instigated by a defendant, is carried onbefore a judicial officer, a complaint of malicious prosecution may arise; UAC (Nig.) Plc v. Sobodu (2007) LPELR-7740 (CA). Thus, a defendant who maliciously makes a false statement against a plaintiff and causes a judicial act, likethe issue of a summons or warrant of arrest, to the prejudice of the plaintiff, will be liable for malicious prosecution even though he may not technically have been the prosecutor in the strict sense; Agi v. First City Monument BankPlc (2013) LPELR-20708(CA). The elements required to prove the complaint must be evident in the evidence adduced before the trial Court."
Per OTISI, J.C.A. (P. 9, Paras. B-F) - read in context
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4. TORT - FALSE IMPRISONMENT/ MALICIOUS PROSECUTION: Essential elements to be proved in the torts of false imprisonment and malicious prosecution"I shall now examine the said evidence against the elements required to be proved by the Respondent as plaintiff.1. That the defendant set in motion against the plaintiff, the law leading to a criminal charge:On what would amount to setting the law in motion by a defendant against a plaintiff, the Appellant relied on Balogun v. Amubikahun (supra) at page 30; Barau v. Chaba (supra) at page 371. In order to succeed in an action forfalse imprisonment, the plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against him. The case of Onyedinma v. Nnite (1997) 3 NWLR (Pt. 493) 33 at 346 was cited and reliedon. It must be shown that the defendant not only made a report to the police, leaving it to the discretion of the police to do its work of investigation and prosecution, but actually actively instigated the actual prosecution of theplaintiff. It is well settled that merely lodging a criminal report to the police does not make the defendant actively instrumental in setting the law in motion against the plaintiff; Balogun v. Amubikahun (sapra); Okonkwo v. Ogbogu(1996) LPELR-2486(SC); Bayol v. Ahemba (supra). Simply passing information to the police or mere complaint to the police, which leads the police to arrest a suspect on their initiative, will not make a citizen liable for falseimprisonment; Mandilas Karaberis Ltd v. Apena (1969) NMLR 199; Onyedinma v. Nnite (supra); Isheno v. Julius Berger Nig. Plc (2008) 2-3 S.C. (Pt. 11) 78; Okeke v. Igboeri (2010) LPELR-4712(CA). See also Nwangwu & Anor v. Duru& Anor (2002) 2 NWLR (Pt. 751) 265 where this Court, per Chukwuma-Eneh, JCA (as he then was) held: "It is settled law that where an individual has lodged the facts of his complaints to the police as in this case by way of petition,and the police have thereupon on their own proceeded to carry out arrests and detention, then the act of imprisonment is that of the police. See Sewell v. National Telephone Co. (1907) 1 K.B. 557."In the absence of established proof that it was the Appellants who were actively instrumental in setting the law in motion against the Respondent, this ground would have failed to meet the required test. In paragraph 4 of theAmended Statement of Claim at page 37 of the Record of Appeal, the Respondent had averred:On 7.6.93, the defendants actuated by malice and deep-seated sinister animosity, maliciously without probable belief in their action and not being parties affected in any with an alleged misdemeanor of the plaintiff decided tobecome busybodies, meddlesome by reporting an alleged offence committed against Chinwe Mba (Adult) to the State ZIIB Makurdi as the Complainants. Further alleged in paragraphs 5-7 thereof, page 37 of the Record of Appeal,was that the police based on the alleged malicious information, caused the arrest and subsequent arraignment of the Respondent. The Respondent who testified as PW1 in line with her pleadings, said in evidence in chief, page 50of the Record of Appeal:"On 7.6.93, the defendants reported me to police that I poured acid on one Chinwe Mba. The report covered my sister called Nbiru Obi. It was at central police Station Gboko that defendants reported us ..."She further testified, pages 52-53 of the Record of Appeal:"I quarreled with Chinwe Mba in 1992 Defendants brought the case against me in 1993... Our quarrel with Chinwe Mba in 1992 was settled by our families and the Igbo Community in 1992."Under cross examination, page 52 of the Record of Appeal PW1 now said:"The alleged acid attack was resolved at family level between Chinwe Mba's family and my family."
The evidence for the Appellants was rather different. Chinwe Mba testified as DW1. She testified that she was attacked with acid by the Respondent and Nkiru Obi. Her testimony in chief, page 55 of the Record of Appeal was that:"The next day, I reported the case to the Police at "A" Division Gboko.The police took me to hospital. The police got the plaintiff and Nkiru Obi arrested."Under cross examination, page 57 of the Record of Appeal, she reiterated:"I first reported the matter to the Police at 'A' Division Gboko on 3.8.93. (sic)"DW3 was a police corporal attached to "A" Division Gboko in the divisional crime branch office. He tendered as Exhibit H the police extract in connection with a case of conspiracy and causing grievous hurt reported by one ChinweMba against one Mrs. Nkiru Obi; page 59 of the Record of Appeal.The evidence of DW1, as pleaded, was after the acid attack, DW1 was hospitalized for a long time. In evidence in chief at page 56 of the Record of Appeal, DW1 further said that after she was discharged from hospital, upon theadvice of the hospital authorities, she went to her village to recuperate. She returned to Gboko in January 1993. She further testified:"Before I left for school, I told defendants to follow up the progress of the case with the police. Sometime in March, 1993, I got a letter from the defendants informing me that police had done nothing yet over the case. I repliedthem and told them to petition the police which they did."Under cross examination, page 56 of the Record of Appeal, DW1 said:"I did not give the defendants power of attorney to prosecute the case on my behalf. I gave the defendants the instruction in a letter to them that they should go on with the case for me." From the pleadings and evidence of theAppellants, it was DW1, the victim of the alleged acid attack, who reported the incident to the police herself on 3/8/1992, as confirmed by Exhibit H, the Police Extract. The police upon the report arrested and detained theRespondent and Nkiru Obi. When DW1 left Gboko, she requested the Appellants to follow up the progress of the complaint she made to the police. DW1 also caused the Appellants to act on her behalf by petitioning AssistantInspector-General of Police in-charge of Zone 4 Makurdi when the 'A' Division of the police in Gboko, before which the initial report was made, appeared tardy in its prosecution of the matter. From the evidence, the victim, DW1initiated the complaint to the police, the Appellants merely acted on her request, by following up on the case, including the act of writing a petition on her behalf. The police acted on the initial report, Exhibit H, and arrested anddetained the Respondent in 'A' Division of the police station, Gboko. The Respondent was on police bail when she was rearrested and moved toPolice Zone 4 Makurdi upon the petition written on the instructions of DW1. The learned trial Judge acknowledged that the two torts involved in this matter were false imprisonment and malicious prosecution. He furtheracknowledged, page 66 of the Record of Appeal:"It is common ground between the parties and I believe them that DW1 had accused the plaintiff and one Nkiru Obi of attacking her with acid in 1992. Plaintiff swore their two families and the Igbo Community in Gboko resolved thecase at home amicably. Defendants did not dislodge this assertion under cross examination. DW1 who was the victim of the alleged attack gave no evidence on the said assertion. In short no evidence came forth from defendants'side refuting the said assertion. I am satisfied with the unchallenged evidence of plaintiff that the alleged said attack incident was amicably settled at the domestic forum afore-sworn in her said evidence. To suggest as did theplaintiff that the matter did not reach the police does not impress me. Exhibit H, the extract from the police case diary convinces me that DW1 had reported the incident to them on 3.8.92. It seems certain to me thatthe peaceful settlement of the case came after the report to the police. It also seems certain to me that none of the parties put the police in the know of peaceful settlement in order to have Exhibit H closed by the police. Itremained a live matter before the 'A' Division of the police formation Gboko, albeit in abeyance, at the time the defendants petitioned the Assistant Inspector-General of Police in-charge of Zone 4 Makurdi." (Emphasis mine) Withrespect, the conclusions reached by the learned trial Judge are not easy to comprehend. In the first place, evidence regarding a peaceful settlement of the matter came only from the Respondent as PW1. As pointed out by theLearned Senior Counsel, there was no evidence adduced in proof of this assertion. In evidence in chief, PW1 said the quarrel was resolved by both families and by the Igbo Community. Under cross examination, she now said it wasresolved at family level by both families, that is to say, the Igbo Community was not involved. Nonetheless, no one came from the Igbo Community in Gboko or from the Respondent's family to confirm any such peaceful settlementtook place. Settlement of a dispute involves the two parties and perhaps, witnesses. No witness of the settlement testified. The victim, DW1, who ought to be part of the settlement did not testify of any such amicable resolution ofthe dispute. Rather the evidence of the Appellants was that DW1 maintained her complaint to the police directly and through the Appellants for the police investigation and action. Indeed, if there had actually been a peacefulsettlement, it was the Respondent who ought to have ensured the police were put in the picture. The trial Judge had concluded that:"It seems certain to me that the peaceful settlement of the case came after the report to the police. It also seems certain to me that none of the parties put the police in the know of peaceful settlement in order to have Exhibit Hclosed by the police."These conclusions in my respectful opinion can only be described as speculation and conjecture. The evidence adduced did not point in this direction at all. The learned trial Judge acknowledged that the complaint of DW1 remaineda live matter before the 'A' Division of the police formation Gboko, albeit in abeyance, at the time the defendants petitioned the Assistant Inspector-General of Police in-charge of Zone 4 Makurdi. The complaint that remained a livematter was the original complaint laid by DW1 in Exhibit H. There had been no closure of the case. The further conclusion that the Appellants' petition resuscitated or revived the case ought not stand.
The Respondent was required to prove her assertions. It is trite law that he who asserts must prove; Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412 S.C.; Ohochukwu v. AG, Rivers State & Ors (2012) LPELR-7849(SC). Aside from herbare assertion, the Respondent tendered no other evidence in proof. No duty lay on the Appellants to deny assertions or allegations which have not been proved. I agree with the Appellants that the conclusion of the learned trialJudge appeared to have placed the onus of proof on the Appellants and not on the Respondent as it ought to be. It must be emphasized, as is well settled, that the mere fact that a report was made to the police does not mean thatthe law has been set in motion against a suspect; Balogun v. Amubikahun (supra); Okonkwo v. Ogbogu (1996) LPELR-2486 (SC); Bayol v. Ahemba (supra). The evidence adduced showed that the police action against theRespondent was initiated by the report made to the police by DW1, evidenced by Exhibit H. This said report was still a live issue before the police, although the Respondent was on police bail. The Appellants merely acted on behalfof DW1 on her request that the police be petitioned on her behalf to take further action on her said live complaint. The initial decision to arrest and detain the Respondent, as well as the later decision to re-arrest and detain theRespondent, were taken by the police. The Appellants have not been shown to have actively encouraged or masterminded it. In my considered opinion, having regard to the evidence adduced, it was not proved that the Appellantsset the law in motion, leading to a criminal charge, against the Respondent. This ingredient of malicious prosecution and false imprisonment was therefore not proved.2. That the prosecution ended in the discharge and acquittal of the plaintiff;In this element of malicious prosecution, prosecution terminating in a defendant's favour does not mean that he has to be discharged on the merits. It sufficesif he is discharged or the Attorney General enters a nolle prosequi staying further proceedings, or where the plaintiff was acquitted of the charge in question but convicted of a lesser charge; Barau v. Chaba (supra); Agi v. First CityMonument Bank Plc (supra). The pleadings and unchallenged evidence before the trial lower Court were that in the course of the trial of the Respondent before the Upper Area Court, Makurdi, the Respondent's Counsel took apreliminary objection as to the issue of locus standi of the Appellants to make a report to the police on behalf of Chinwe Mba, who was an adult at the material time. The said trial Upper Area Court upheld the objection and struckout the First Information Report. The said ruling was not appealed against. The prosecution at the Upper Area Court fell flat on its face on account of this ruling as the Respondent was discharged. Although the evidence before thelower Court was that the prosecution of the Respondent was on going in other related proceedings, the matter for which the instant suit was filed arose from the said ruling delivered on 23/9/1993, by the upper Area Court, in whichthe Appellant wasdischarged. The said prosecution therefore ended in the discharge of the Respondent.3. That the prosecution of the plaintiff was completely without reasonable and probable cause;In determining whether the prosecution of a plaintiff was reasonable and with probable cause, the test to be applied is an objective one. In Oteri v. Okorodudu & Anor (1970) All NLR 199, (1970) LPELR-2824 (SC), the Supreme Courtexpounded:"In our view the test to be applied, with the onus of proof on the defendant seeking to justify his conduct, was laid down in 1838 by Tindal, C.J. in Allen v. Wright 8 Car. and P. 522 where he said that it must be that of a reasonableperson acting without passion and prejudice. The matter must be looked at objectively, and in the light of the facts known to the defendant at the time, not on subsequent facts that may come to light...We would also refer to the judgment of Diplock, L.J. (as he then was) in Dallison v. Caffiey (1965) 1 Q.B. 348 as to the question of reasonableness in a case involving both false imprisonment and malicious prosecution where atpage 371 he said:- "One word about the requirement that the arrestor or prosecutor should act honestly as well as reasonable. In this context it means no more than that he himself at the time believed that there was reasonablyand probable cause, in the sense that I have defined it above, for the arrest or for the prosecution, as the case may be. The test whether there was reasonable and probable cause for the arrest or prosecution is an objective one,namely, whether a reasonable man, assumed to know the law and possessed of the information which in fact was possessed by the defendant, would believe that there was reasonable and probable cause. Where that test issatisfied, the onus lies on the person who has been arrested or prosecuted to establish that his arrestor or prosecutor did not in fact believe what ex hypothesis he would have believed had he been reasonable (see Herniman v.Smith (1938) A.C. 305, 316 per Lord Atkin). In the nature of things this issue can seldom seriously arise." Belief by a defendant in the criminal culpability of the plaintiff must be honest, based upon full conviction founded uponreasonable grounds in relation to a set of facts and circumstances, which if true would lead every reasonable man to believe the plaintiff has committed an offence;Ejikeme v. Nwosu (2002) 3 NWLR (Pt. 754) 356.The unchallenged evidence before the lower Court was that the alleged acid attack incident was personally reported to the police by the said victim, Chinwe Mba. After the report to the police, the Respondent and Nkiru Obi werearrested by the police. Although the trial Upper Area Court struck out the First Information Report on grounds of lack of locus standi of the complainants, and discharged the Respondent, it is important to note that the trial UpperArea Court did not see the charge as completely unreasonable and without probable cause. In declining to grant the prayer for compensation, the trial Upper Area Court ruled at page 19 of the Record of Appeal;"On the 2nd prayer that compensation be awarded to the accused persons because the accusations are frivolous and vexatious, I hold that the fact that the two police informants have no locus standi does not make the accusationsfrivolous or vexatious, they may be some truth in the said accusations only the complainant (sic) has been brought by wrong parties. I therefore decline to award compensation."(Emphasis mine)As found above, the prosecution of the Respondent was on account of the complaint of DW1 to the police. The learned trial Judge found that there was an accusation of acid attack on DW1 by the Respondent and Nkiru Obi; page66 of the Record of Appeal. The report to the police, the further petition to the police on behalf of DW1 by the Appellants, upon her request, as well as consequent prosecution of the Respondent have not been shown to becompletely without reasonable and probable cause. This ingredient was also not proved.4. That the prosecution was a result of malice by the defendant against the Plaintiff.Malice means the absence of honest belief in the charge against the accused person; Balogun v. Amubikahun (supra). In the case of Bayol v. Ahemba (supra) the Supreme Court, per Achike, JSC cited the English case of Meering v.Craham - White Aviation Co. 122 L.T. 44 at pp. 35 and 36 in which this point was elucidated thus: "Honest belief seems to be the substantial thing that has always to be decided and such belief must be not merely belief by theprosecutor of the guilt of the person, but it must be a belief that the prosecutor will be able to adduce sufficient evidence before a jury or the Court as would justify the Court in convicting the accused."In Afribank Nigeria Plc v. Onyima & Anor (2003) LPELR-5207 (CA), this Court, per Nzeako, JCA said:"...malice in the context of the tort of unlawful imprisonment, or its related tort of malicious prosecution, is not considered by the law in the sense of hatred or spite against the victim, but in the sense of the perpetrator beingactuated by improper motive or "animus malus", or in the sense of a wrongful act intentionally done. See Payin v. Aliuah (1953) 14 WACA 267 at 268 (Per Foster-Sulton P) Also Okonkwo v. Ogbogu (supra) at P. 435 (Per Ogwuegbu,JSC)." Particulars of malice were given in paragraphs 12-13 to the effect that there had been existing misunderstanding between the respective families of the 1st Appellant and the Respondent. PW1 testified that she and hermother had a quarrel with the wife of the 1st Appellant in 1993 following which the 1st Appellant threatened to resuscitate the case of alleged acid attack against her; pages 52-53 of the Record of Appeal. The learned trial Judgehad drawn these conclusions, page 69 of the Record of Appeal:"Technically, the defendants caused the said prosecution. It ended in the plaintiff's favour. It came about because of the grudge defendants had against the Plaintiff for quarreling with and calling 1st defendant's wife a harlot. Theprosecution was not induced by the desire of the defendants to secure justice. It was propelled by the ulterior-motive if teaching the plaintiff a lesson (so to speak) for the vulgar insult she gave 1st defendant's wife."Again, I must confess that I do not follow the basis for these conclusions. He who asserts must prove. It must be observed that aside from giving the year in which this quarrel and ensuing threat were alleged to have happened,PW1 gave no further precise details of the event. Her mother who was alleged to have been part of the quarrel did not testify. The 2nd Appellant was not mentioned to have had anything to do with this quarrel or threat or even tohave been present when it took place. The conclusions of the learned trial Judge did not flow from the evidence. In paragraph 11 of Amended Statement of Claim at page 38 of the Record of Appeal, the Respondent alleged that theAppellants were not at all related to Chinwe Mba, who was an adult and a mother at the material time. She pleaded that the Appellants were from Amadim-Oko Local Government Area of Enugu State while Chinwe Mba was fromOrumba Local Government in Anambra State. As PW1, she testified, page 53 of the Record of Appeal, that:"Chinwe Mba is from the same Nanka in Anambra State of the country with me... Defendants hail from Enugu State. Defendants do not have blood relationship with Chinwe Mba."But the Appellants had pleaded to the contrary. DW1 said, page 53 of the Record of Appeal:"I know the defendants. They are my cousins. I know plaintiff and Nkiru Obi. They used to be my friends..."Under cross examination at page 57 of the Record of Appeal, DW1 said:"I am from Enugu State. My town is called Ezeagwu (sic)."DW2 also testified that both DW1 and the 2nd Appellant are his cousins. He said he was from Ezeagu Local Government in Enugu State. In further explanation of his relationship with DW1, he said:"My mother was (sic) the same father and mother with DW1."The learned trial Judge found that the Respondent was not cross-examined on her testimony on the nativity of DW1 and of the Appellants. In his conclusion, the learned trial Judge, page 67 of the Record of Appeal, said:"At the end of her testimony, the assertion that the defendants came from Enugu State, while DW1 and herself are from Anambra State went unchallenged. I believe and accept plaintiff's aforestated evidence accordingly... I rejectthe evidence of 1st defendant and DW1 given at defence stage of their cousinhood as belated."I also do not appreciate this conclusion. Having denied the averment of the Respondent on their nativity and relationship with Chinwe Mba, the parties had joined issues. The question is, would simply asserting that a set of peopleare not related or that they come from a certain place constitute proof of same without more? I think not. The pleading and evidence of DW1 and DW2 affirm that a relationship exists between the appellants and DW1. The barefaced assertion of the Respondent to the contrary cannot constitute proof of same. The prosecution of the Respondent has therefore not been shown by the evidence to have been activated by malice against the plaintiff by thedefendant. The conclusion to be reached is that three of the elements that constitute false imprisonment and malicious prosecution were not proved by the Respondent. The judgment of the learned trial Judge was therefore notsustainable having regard to the evidence adduced before him. Issues 1 and 2 are thus resolved in favour of the Appellants."
Per OTISI, J.C.A. (Pp. 12-32, Paras. B-B) - read in context
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ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading
Judgment): This is an appeal against the decision of the
Benue State High Court sitting at Katsina-Ala in Suit No.
KHC/66/96, delivered on July 17, 1997 wherein the
judgment was entered in favour of the Respondent.
The Respondent, jointly with one Nkiru Obi, as plaintiffs at
the lower Court, initiated proceedings against the
Appellants, claiming the sum of N1.5 million for false
imprisonment, malicious prosecution and general damages.
The writ of summons and statement of claim were
subsequently amended, with leave of the trial Court by
excluding the name of Nkiru Obi and adding the claim for
professional legal fee. The facts as disclosed by the
pleadings and evidence before the trial Court are that on
the 3/8/92 one Chinwe Mba, a cousin of the Appellants,
lodged a complaint at the "A" Division Police Station,
Gboko, against the Respondent and one Nkiru obi for
pouring acid on her back which caused her serious bodily
hurt. The police extract of the said report was admitted in
evidence as Exhibit H. The Respondent and Nkiru Obi were
arrested but later released on bail. The police
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could not immediately proceed with the prosecution of the
suspects as the said Chinwe Mba was recuperating at her
hometown, Ezeagu in Enugu State after being treated in
the hospital. When Chinwe Mba recovered sufficiently, she
returned to her school, Anambra State Polytechnic, Oko
and instructed the Appellants to monitor the progress of
her complaint at the police state and inform her
accordingly.
When the Appellants discovered that the "A" Division Police
Station was not giving the matter sufficient attention they
informed Chinwe Mba who instructed them to petition the
Assistant Inspector General of Police (AIG), Zone 4,
Makurdi; which the Appellants did. The AIG ordered that
the case file at "A" Division Police Station, Gboko be
transferred to Makurdi. The Respondent and Nkiru Obi
were detained at the Gboko 'A' Division Police Station for
two days and later taken to the Zone 4 Headquarters in
Makurdi where the Respondent and the said Nkiru Obi
were again detained for an additional one day before they
were arraigned before the upper Area Court, Makurdi on a
First Information Report (F.I.R.) for an offence contrary to
Section 97(1) and 248 (2) of the
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Penal Code. At the hearing before the Upper Area Court,
the Respondent's counsel therein raised an objection as to
the competence of the Appellants to petition the AIG for an
offence committed against Chinwe Mba. The trial upper
Area Court Judge upheld the objection and thereupon,
struck out the F.I.R. and discharged the Respondent. The
Respondent was immediately re-arrested by the police and
a fresh F.I.R. under the same provision of the Penal Code
was preferred against her and Nkiru Obi at the Magistrate
Court, Makurdi. Chinwe Mba, the victim of the acid attack,
signed the F.I.R. The case was later transferred to the
Chief Magistrate Court, Gboko where the case was still
pending at the material time. The Respondent's suit before
the trial High Court was predicated upon the ruling of the
Upper Area Court discharging the Respondent and striking
out the F.I.R. The Respondent had contended before the
lower Court that the petition by the Appellants to the A.I.G.
was maliciously made.
At the conclusion of hearing, the trial Court delivered its
judgment wherein it awarded the sum of N25,000.00 to the
Respondent as damages for false imprisonment and
another
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N25,000.00 as damages for malicious prosecution, while it
dismissed the other arms of her claims. Dissatisfied with
the said judgment, the Appellants lodged the instant appeal
by Notice of Appeal filed on 7/8/1997. The said Notice of
Appeal was subsequently amended by leave of this Court
and the Amended Notice and Grounds of Appeal was filed
on 18/1/2001, upon three grounds of appeal.
The parties exchanged Briefs of Argument. The Amended
Appellants' Brief, which was filed on 1/7/2003, was adopted
by G. Ofodile Okafor, Esq. SAN on 6/3/2017. The
Respondent's Brief, in which a Preliminary Objection was
raised, was filed on 6/2/2006 but deemed properly filed and
served on 7/2/2006. The Appellant filed a Reply Brief on
20/2/2006. The Respondent was served through her
Counsel, R.S.M. Adebayo, Esq., with Hearing Notice on
2/3/2017 for the hearing of the appeal. At the hearing of
the appeal on 6/3/2017, the Respondent and Counsel were
absent, and there was no explanation for their absence
before the Court. The Respondent's Brief was,
nevertheless, deemed argued pursuant to Order 19 Rule
9(4) of the Court of Appeal Rules, 2016.
The Respondent did not
4
(201
7) LP
ELR-44
039(
CA)
appear to argue the Preliminary Objection raised in the
Respondent's Brief. In consequence, Learned Senior
Counsel for the Appellant urged the Court to strike out the
Preliminary Objection. In a similar situation, the Supreme
Court, per A. M. Muktar, JSC (as he then was) in Carew v.
Oguntokun (2011) LPELR-9355(SC) said:
"It is a cardinal principle of law that any process that is
filed in Court, and which the party who has filed it has not
deemed it necessary to pursue, either by taking further
steps or doing certain things like moving the Court, in
compliance with requirements of the law, as in this case,
the Court will be correct to assume that the process has
been abandoned by the party, and so deem the said process
as duly abandoned. (In this case the preliminary objection)
...the appellant having abandoned her preliminary objection
in the Court of Appeal cannot complain that the Court
refused to pronounce on it."
Contributing to the decision of the Supreme Court in the
earlier case of Lagga v. Sarhuna (2008) 6-7 S.C. (Pt. 1)
101, (2008) LPELR-1740(SC), I. F. Ogbuagu, JSC said:
"... a notice, of preliminary objection, can be given in the
5
(201
7) LP
ELR-44
039(
CA)
respondent's brief. But a party filing it in the brief, must
ask the Court for leave to move the notice, before the oral
hearing of the appeal commences otherwise, it will be
deemed to have been waived and therefore, abandoned."
See also: Oforkire v. Maduike (2003) 1 SCNJ 440;
Opobiyi v. Muniru (2011) LPELR-8232(SC).
In the instant appeal, notwithstanding the service of
Hearing Notice for the hearing of this appeal, neither the
Respondent nor her counsel has appeared to be heard in
respect of the process filed. While, by virtue of Order 19
Rule 9(4) of the Court of Appeal Rules, 2016, this Court is
empowered to deem the Respondent's Brief as duly argued,
there is no such provision regarding a preliminary
objection. In this circumstance, I agree with learned senior
counsel for the Appellant that the Preliminary Objection of
the Respondent ought to be discountenanced as having
been abandoned. The preliminary objection is accordingly
hereby struck out.
Out of the three grounds of appeal, learned Senior Counsel
for the Appellants, distilled three issues for determination,
as follows:
1. Whether the tort of malicious prosecution and
6
(201
7) LP
ELR-44
039(
CA)
false imprisonment were proved.
2. Whether the defendants were mere interlopers and if the
answer is in the negative whether the judgment of the
Court is sustainable having regard to the evidence.
3. Whether the sum of N50,000.00 is excessive.
For the Respondent, the issues for determination were
1. Did the Respondent at the trial Court prove that she was
falsely imprisoned and that the false imprisonment was
caused by the Appellants.
2. Did the Appellants not prosecute the Respondent
maliciously?
3. Did the trial Court apply wrong principles of law in
arriving at the award of damages at the end of the day.
These issues are the same in content. Issues 1 and 2 as
formulated by both parties shall be considered together;
and Issue 3.
Issues 1 and 2
Learned Senior Counsel for the Appellants, relying on
Halsbury's Laws of England 4th Edition Vol. 45 paragraph
1340 defined malicious prosecution as being an abuse of
the process of the Court by wrongfully setting the law in
motion on a criminal charge. An action for false
imprisonment lies at the suit of a person unlawfully
imprisoned against the person who causes
7
(201
7) LP
ELR-44
039(
CA)
the imprisonment; also, relying on Halsbury's Laws of
England (supra) paragraph 1325. There are four
ingredients that a plaintiff must prove in order to succeed
in an action for malicious prosecution as follows:
i. That the defendant set in motion against the plaintiff, the
law leading to a criminal charge;
ii. That the prosecution ended in the discharge and
acquittal of the plaintiff;
iii. That the prosecution of the plaintiff was completely
without reasonable and probable cause;
iv. That the prosecution was a result of malice by the
defendant against the plaintiff.
The onus of proving all these four elements rests on the
plaintiff relying on Balogun v. Amubikahun (1989) 3
NWLR (Pt. 107) 18 at 26: Barau v. Chaba (1995) 1
NWLR (Pt. 371) 357 at 366; Bayol v. Ahemba (1999)
10 NWLR (Pt. 623) 381 at 398; Ojo v. Okitipupa Oil
Palm Plc (2001) 9 NWLR (Pt. 719) 679 at page
695-696; Ejikeme v. Nwosu (2002) 3 NWLR (Pt. 754)
at page 367-378. Learned Senior Counsel for the
Appellants also relied on Balogun v. Amubikahun
(supra); Barau v. Chaba (supra) to submit that the tort
of false imprisonment is embodied in the first ingredient of
the tort
8
(201
7) LP
ELR-44
039(
CA)
of malicious prosecution. While it was contended for the
Appellants that these elements of malicious prosecution
and of false imprisonment were not proved by the
Respondent, for the Respondent, it was otherwise
contended. A scrutiny of the evidence which was adduced
before the trial Court is therefore essential.
When a report is made to the police against a plaintiff, and
the defendant instigates his arrest and or detention, a
complaint of false imprisonment could arise. When the
report or charge, as instigated by a defendant, is carried on
before a judicial officer, a complaint of malicious
prosecution may arise; UAC (Nig.) Plc v. Sobodu (2006)
LPELR-7740 (CA). Thus, a defendant who maliciously
makes a false statement against a plaintiff and causes a
judicial act, like the issue of a summons or warrant of
arrest, to the prejudice of the plaintiff, will be liable for
malicious prosecution even though he may not technically
have been the prosecutor in the strict sense; Agi v. First
City Monument Bank Plc (2013) LPELR-20708(CA).
The elements required to prove the complaint must be
evident in the evidence adduced before the trial Court.
9
(201
7) LP
ELR-44
039(
CA)
In examining the evidence adduced before the trial Court, it
is important to bear in mind that an appellate Court will not
ordinarily substitute its own view of the evidence for that of
the learned trial Judge except in prescribed circumstances.
An appellate Court may, in the interest of justice set aside
findings of fact made by a trial Court where such findings
cannot be regarded as resulting from the evidence or the
findings are not based on the fact of the trial judge having
seen and heard the witnesses or from conclusions from
demeanour in the witness box;Aigbotosho v. Governor,
Oyo State (1992) LPELR-2570(SC); Olabanji v.
Omokewu (1992) LPELR-2541(SC). In his comments
regarding the issue of whether and when an appellate
Court should reverse the findings of a trial Court, Oputa,
JSC, in Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301,
(1988) LPELR-720 (SC), restated some guiding principles
as follows:
"1. Ordinarily it is not the function of an Appellate Court to
disturb the findings of fact of the trial Court - the Court
that saw the witnesses, heard them testify, and believed
one side while disbelieving the other. This is the first
principle - the
10
(201
7) LP
ELR-44
039(
CA)
general principle...
2. Where the trial Court gave reasons for making the
findings it made, an Appellate Court will be fully in order if
it proceeds to look at those reasons and if the reasons are
not satisfactory, as in the case on appeal, the Appellate
Court will come to the conclusion (as was done in this case)
that any advantage enjoyed by the trial Court by reason of
having seen and heard the witnesses was not and could not
be sufficient to explain or/and justify the trial Court's
conclusions. An appellate Court has jurisdiction to look at
the evidence on record to see whether they justify the
conclusions of the learned trial judge...
3. Where the real issue does not revolve around the
credibility of the witnesses who testified, as much as on the
inferences to be drawn from proved or admitted facts, or
facts as found by the trial Court, an appellate Court has full
liberty to draw its own inferences and should not be
deterred from that duty to thus make up its own mind, not
disregarding, of course, the judgment appealed against but
giving it, its due weight...
4. Where the trial judge proceeded on a wrong assumption
as to the onus of proof
11
(201
7) LP
ELR-44
039(
CA)
this misapprehension and wrong assumption may affect the
learned trial judge's views on the evidence and on his
conclusions. There an appellate Court will be perfectly
justified to intervene.
5. Where the trial Court did not consider the entire
evidence there, its conclusions are bound to be faulty and
erroneous and an appellate Court will intervene to correct
such error..."
I shall now examine the said evidence against the elements
required to be proved by the Respondent as plaintiff.
1. That the defendant set in motion against the
plaintiff, the law leading to a criminal charge:
On what would amount to setting the law in motion by a
defendant against a plaintiff, the Appellant relied on
Balogun v. Amubikahun (supra) at page 30; Barau v.
Chaba (supra) at page 371. In order to succeed in an
action for false imprisonment, the plaintiff must show that
it was the defendant who was actively instrumental in
setting the law in motion against him. The case of
Onyedinma v. Nnite (1997) 3 NWLR (Pt. 493) 33 at
346 was cited and relied on. It must be shown that the
defendant not only made a report to the police, leaving it to
the discretion
12
(201
7) LP
ELR-44
039(
CA)
of the police to do its work of investigation and prosecution,
but actually actively instigated the actual prosecution of the
plaintiff.
It is well settled that merely lodging a criminal report to
the police does not make the defendant actively
instrumental in setting the law in motion against the
plaintiff; Balogun v. Amubikahun (sapra); Okonkwo v.
Ogbogu (1996) LPELR-2486(SC); Bayol v. Ahemba
(supra). Simply passing information to the police or mere
complaint to the police, which leads the police to arrest a
suspect on their initiative, will not make a citizen liable for
false imprisonment; Mandilas Karaberis Ltd v. Apena
(1969) NMLR 199; Onyedinma v. Nnite (supra);
Isheno v. Julius Berger Nig. Plc (2008) 2-3 S.C. (Pt.
11) 78; Okeke v. Igboeri (2010) LPELR-4712(CA). See
also Nwangwu & Anor v. Duru & Anor (2002) 2 NWLR
(Pt. 751) 265 where this Court, per Chukwuma-Eneh, JCA
(as he then was) held:
"It is settled law that where an individual has lodged the
facts of his complaints to the police as in this case by way
of petition, and the police have thereupon on their own
proceeded to carry out arrests and detention, then the act
of
13
(201
7) LP
ELR-44
039(
CA)
imprisonment is that of the police. See Sewell v. National
Telephone Co. (1907) 1 K.B. 557."
In the absence of established proof that it was the
Appellants who were actively instrumental in setting the
law in motion against the Respondent, this ground would
have failed to meet the required test.
In paragraph 4 of the Amended Statement of Claim at page
37 of the Record of Appeal, the Respondent had averred:
On 7.6.93, the defendants actuated by malice and deep-
seated sinister animosity, maliciously without probable
belief in their action and not being parties affected in any
with an alleged misdemeanor of the plaintiff decided to
become busybodies, meddlesome by reporting an alleged
offence committed against Chinwe Mba (Adult) to the State
ZIIB Makurdi as the Complainants.
Further alleged in paragraphs 5-7 thereof, page 37 of the
Record of Appeal, was that the police based on the alleged
malicious information, caused the arrest and subsequent
arraignment of the Respondent. The Respondent who
testified as PW1 in line with her pleadings, said in evidence
in chief, page 50 of the Record of Appeal:
"On 7.6.93, the defendants
14
(201
7) LP
ELR-44
039(
CA)
reported me to police that I poured acid on one Chinwe
Mba. The report covered my sister called Nbiru Obi. It was
at central police Station Gboko that defendants reported us
..."
She further testified, pages 52-53 of the Record of Appeal:
"I quarreled with Chinwe Mba in 1992 Defendants brought
the case against me in 1993... Our quarrel with Chinwe
Mba in 1992 was settled by our families and the Igbo
Community in 1992."
Under cross examination, page 52 of the Record of Appeal
PW1 now said:
"The alleged acid attack was resolved at family level
between Chinwe Mba's family and my family."
The evidence for the Appellants was rather different.
Chinwe Mba testified as DW1. She testified that she was
attacked with acid by the Respondent and Nkiru Obi. Her
testimony in chief, page 55 of the Record of Appeal was
that:
"The next day, I reported the case to the Police at "A"
Division Gboko.
The police took me to hospital. The police got the plaintiff
and Nkiru Obi arrested."
Under cross examination, page 57 of the Record of Appeal,
she reiterated:
"I first reported the matter to the Police at 'A' Division
Gboko
15
(201
7) LP
ELR-44
039(
CA)
on 3.8.93. (sic)"
DW3 was a police corporal attached to "A" Division Gboko
in the divisional crime branch office. He tendered as
Exhibit H the police extract in connection with a case of
conspiracy and causing grievous hurt reported by one
Chinwe Mba against one Mrs. Nkiru Obi; page 59 of the
Record of Appeal.
The evidence of DW1, as pleaded, was after the acid attack,
DW1 was hospitalized for a long time. In evidence in chief
at page 56 of the Record of Appeal, DW1 further said that
after she was discharged from hospital, upon the advice of
the hospital authorities, she went to her village to
recuperate. She returned to Gboko in January 1993. She
further testified:
"Before I left for school, I told defendants to follow up the
progress of the case with the police. Sometime in March,
1993, I got a letter from the defendants informing me that
police had done nothing yet over the case. I replied them
and told them to petition the police which they did."
Under cross examination, page 56 of the Record of Appeal,
DW1 said:
"I did not give the defendants power of attorney to
prosecute the case on my behalf. I gave the defendants the
16
(201
7) LP
ELR-44
039(
CA)
instruction in a letter to them that they should go on with
the case for me."
From the pleadings and evidence of the Appellants, it was
DW1, the victim of the alleged acid attack, who reported
the incident to the police herself on 3/8/1992, as confirmed
by Exhibit H, the Police Extract. The police upon the report
arrested and detained the Respondent and Nkiru Obi.
When DW1 left Gboko, she requested the Appellants to
follow up the progress of the complaint she made to the
police. DW1 also caused the Appellants to act on her behalf
by petitioning Assistant Inspector-General of Police in-
charge of Zone 4 Makurdi when the 'A' Division of the
police in Gboko, before which the initial report was made,
appeared tardy in its prosecution of the matter. From the
evidence, the victim, DW1 initiated the complaint to the
police, the Appellants merely acted on her request, by
following up on the case, including the act of writing a
petition on her behalf. The police acted on the initial
report, Exhibit H, and arrested and detained the
Respondent in 'A' Division of the police station, Gboko. The
Respondent was on police bail when she was rearrested
and moved to
17
(201
7) LP
ELR-44
039(
CA)
Police Zone 4 Makurdi upon the petition written on the
instructions of DW1.
The learned trial Judge acknowledged that the two torts
involved in this matter were false imprisonment and
malicious prosecution. He further acknowledged, page 66
of the Record of Appeal:
"It is common ground between the parties and I believe
them that DW1 had accused the plaintiff and one Nkiru Obi
of attacking her with acid in 1992. Plaintiff swore their two
families and the Igbo Community in Gboko resolved the
case at home amicably. Defendants did not dislodge this
assertion under cross examination. DW1 who was the
victim of the alleged attack gave no evidence on the said
assertion. In short no evidence came forth from defendants'
side refuting the said assertion. I am satisfied with the
unchallenged evidence of plaintiff that the alleged said
attack incident was amicably settled at the domestic forum
afore-sworn in her said evidence. To suggest as did the
plaintiff that the matter did not reach the police does not
impress me. Exhibit H, the extract from the police case
diary convinces me that DW1 had reported the incident to
them on 3.8.92. It seems certain to me that
18
(201
7) LP
ELR-44
039(
CA)
the peaceful settlement of the case came after the
report to the police. It also seems certain to me that
none of the parties put the police in the know of
peaceful settlement in order to have Exhibit H closed
by the police. It remained a live matter before the 'A'
Division of the police formation Gboko, albeit in
abeyance, at the time the defendants petitioned the
Assistant Inspector-General of Police in-charge of
Zone 4 Makurdi." (Emphasis mine)
With respect, the conclusions reached by the learned trial
Judge are not easy to comprehend. In the first place,
evidence regarding a peaceful settlement of the matter
came only from the Respondent as PW1. As pointed out by
the Learned Senior Counsel, there was no evidence
adduced in proof of this assertion. In evidence in chief,
PW1 said the quarrel was resolved by both families and by
the Igbo Community. Under cross examination, she now
said it was resolved at family level by both families, that is
to say, the Igbo Community was not involved. Nonetheless,
no one came from the Igbo Community in Gboko or from
the Respondent's family to confirm any such peaceful
settlement took place. Settlement of a
19
(201
7) LP
ELR-44
039(
CA)
dispute involves the two parties and perhaps, witnesses. No
witness of the settlement testified. The victim, DW1, who
ought to be part of the settlement did not testify of any
such amicable resolution of the dispute. Rather the
evidence of the Appellants was that DW1 maintained her
complaint to the police directly and through the Appellants
for the police investigation and action. Indeed, if there had
actually been a peaceful settlement, it was the Respondent
who ought to have ensured the police were put in the
picture. The trial Judge had concluded that:
"It seems certain to me that the peaceful settlement
of the case came after the report to the police. It also
seems certain to me that none of the parties put the
police in the know of peaceful settlement in order to
have Exhibit H closed by the police."
These conclusions in my respectful opinion can only be
described as speculation and conjecture. The evidence
adduced did not point in this direction at all.
The learned trial Judge acknowledged that the complaint of
DW1 remained a live matter before the 'A' Division of the
police formation Gboko, albeit in abeyance, at the time the
20
(201
7) LP
ELR-44
039(
CA)
defendants petitioned the Assistant Inspector-General of
Police in-charge of Zone 4 Makurdi. The complaint that
remained a live matter was the original complaint laid by
DW1 in Exhibit H. There had been no closure of the case.
The further conclusion that the Appellants' petition
resuscitated or revived the case ought not stand.
The Respondent was required to prove her assertions. It is
trite law that he who asserts must prove; Agala v. Okusin
(2010) 10 NWLR (Pt. 1202) 412 S.C.; Ohochukwu v.
AG, Rivers State & Ors (2012) LPELR-7849(SC). Aside
from her bare assertion, the Respondent tendered no other
evidence in proof. No duty lay on the Appellants to deny
assertions or allegations which have not been proved. I
agree with the Appellants that the conclusion of the learned
trial Judge appeared to have placed the onus of proof on
the Appellants and not on the Respondent as it ought to be.
It must be emphasized, as is well settled, that the mere fact
that a report was made to the police does not mean that the
law has been set in motion against a suspect; Balogun v.
Amubikahun (supra); Okonkwo v. Ogbogu (1996)
LPELR-2486 (SC); Bayol v. Ahemba
21
(201
7) LP
ELR-44
039(
CA)
(supra). The evidence adduced showed that the police
action against the Respondent was initiated by the report
made to the police by DW1, evidenced by Exhibit H. This
said report was still a live issue before the police, although
the Respondent was on police bail. The Appellants merely
acted on behalf of DW1 on her request that the police be
petitioned on her behalf to take further action on her said
live complaint. The initial decision to arrest and detain the
Respondent, as well as the later decision to re-arrest and
detain the Respondent, were taken by the police. The
Appellants have not been shown to have actively
encouraged or masterminded it. In my considered opinion,
having regard to the evidence adduced, it was not proved
that the Appellants set the law in motion, leading to a
criminal charge, against the Respondent. This ingredient of
malicious prosecution and false imprisonment was
therefore not proved.
2. That the prosecution ended in the discharge and
acquittal of the plaintiff;
In this element of malicious prosecution, prosecution
terminating in a defendant's favour does not mean that he
has to be discharged on the merits. It suffices
22
(201
7) LP
ELR-44
039(
CA)
if he is discharged or the Attorney General enters a nolle
prosequi staying further proceedings, or where the plaintiff
was acquitted of the charge in question but convicted of a
lesser charge; Barau v. Chaba (supra); Agi v. First City
Monument Bank Plc (supra).
The pleadings and unchallenged evidence before the trial
lower Court were that in the course of the trial of the
Respondent before the Upper Area Court, Makurdi, the
Respondent's Counsel took a preliminary objection as to the
issue of locus standi of the Appellants to make a report to
the police on behalf of Chinwe Mba, who was an adult at
the material time. The said trial Upper Area Court upheld
the objection and struck out the First Information Report.
The said ruling was not appealed against. The prosecution
at the Upper Area Court fell flat on its face on account of
this ruling as the Respondent was discharged. Although the
evidence before the lower Court was that the prosecution
of the Respondent was on going in other related
proceedings, the matter for which the instant suit was filed
arose from the said ruling delivered on 23/9/1993, by the
upper Area Court, in which the Appellant was
23
(201
7) LP
ELR-44
039(
CA)
discharged. The said prosecution therefore ended in the
discharge of the Respondent.
3. That the prosecution of the plaintiff was completely
without reasonable and probable cause;
In determining whether the prosecution of a plaintiff was
reasonable and with probable cause, the test to be applied
is an objective one. In Oteri v. Okorodudu & Anor
(1970) All NLR 199, (1970) LPELR-2824 (SC), the
Supreme Court expounded:
"In our view the test to be applied, with the onus of proof
on the defendant seeking to justify his conduct, was laid
down in 1838 by Tindal, C.J. in Allen v. Wright 8 Car. and P.
522 where he said that it must be that of a reasonable
person acting without passion and prejudice.
The matter must be looked at objectively, and in the light of
the facts known to the defendant at the time, not on
subsequent facts that may come to light...
We would also refer to the judgment of Diplock, L.J. (as he
then was) in Dallison v. Caffiey (1965) 1 Q.B. 348 as to
the question of reasonableness in a case involving both
false imprisonment and malicious prosecution where at
page 371 he said:-
"One word about the requirement that
24
(201
7) LP
ELR-44
039(
CA)
the arrestor or prosecutor should act honestly as well as
reasonable. In this context it means no more than that he
himself at the time believed that there was reasonably and
probable cause, in the sense that I have defined it above,
for the arrest or for the prosecution, as the case may be.
The test whether there was reasonable and probable cause
for the arrest or prosecution is an objective one, namely,
whether a reasonable man, assumed to know the law and
possessed of the information which in fact was possessed
by the defendant, would believe that there was reasonable
and probable cause. Where that test is satisfied, the onus
lies on the person who has been arrested or prosecuted to
establish that his arrestor or prosecutor did not in fact
believe what ex hypothesis he would have believed had he
been reasonable (see Herniman v. Smith (1938) A.C.
305, 316 per Lord Atkin). In the nature of things this
issue can seldom seriously arise."
Belief by a defendant in the criminal culpability of the
plaintiff must be honest, based upon full conviction founded
upon reasonable grounds in relation to a set of facts and
circumstances, which if true would lead
25
(201
7) LP
ELR-44
039(
CA)
every reasonable man to believe the plaintiff has committed
an offence;Ejikeme v. Nwosu (2002) 3 NWLR (Pt. 754)
356.
The unchallenged evidence before the lower Court was that
the alleged acid attack incident was personally reported to
the police by the said victim, Chinwe Mba. After the report
to the police, the Respondent and Nkiru Obi were arrested
by the police. Although the trial Upper Area Court struck
out the First Information Report on grounds of lack of locus
standi of the complainants, and discharged the Respondent,
it is important to note that the trial Upper Area Court did
not see the charge as completely unreasonable and without
probable cause. In declining to grant the prayer for
compensation, the trial Upper Area Court ruled at page 19
of the Record of Appeal;
"On the 2nd prayer that compensation be awarded to the
accused persons because the accusations are frivolous and
vexatious, I hold that the fact that the two police
informants have no locus standi does not make the
accusations frivolous or vexatious, they may be some
truth in the said accusations only the complainant
(sic) has been brought by wrong parties. I therefore
decline to award compensation."
26
(201
7) LP
ELR-44
039(
CA)
(Emphasis mine)
As found above, the prosecution of the Respondent was on
account of the complaint of DW1 to the police. The learned
trial Judge found that there was an accusation of acid
attack on DW1 by the Respondent and Nkiru Obi; page 66
of the Record of Appeal. The report to the police, the
further petition to the police on behalf of DW1 by the
Appellants, upon her request, as well as consequent
prosecution of the Respondent have not been shown to be
completely without reasonable and probable cause. This
ingredient was also not proved.
4. That the prosecution was a result of malice by the
defendant against the Plaintiff.
Malice means the absence of honest belief in the charge
against the accused person; Balogun v. Amubikahun
(supra). In the case of Bayol v. Ahemba (supra) the
Supreme Court, per Achike, JSC cited the English case of
Meering v. Craham - White Aviation Co. 122 L.T. 44 at
pp. 35 and 36 in which this point was elucidated thus:
"Honest belief seems to be the substantial thing that has
always to be decided and such belief must be not merely
belief by the prosecutor of the guilt of the
27
(201
7) LP
ELR-44
039(
CA)
person, but it must be a belief that the prosecutor will be
able to adduce sufficient evidence before a jury or the
Court as would justify the Court in convicting the accused."
In Afribank Nigeria Plc v. Onyima & Anor (2003)
LPELR-5207 (CA), this Court, per Nzeako, JCA said:
". . .malice in the context of the tort of unlawful
imprisonment, or its related tort of malicious prosecution,
is not considered by the law in the sense of hatred or spite
against the victim, but in the sense of the perpetrator being
actuated by improper motive or "animus malus", or in the
sense of a wrongful act intentionally done. See Payin v.
Aliuah (1953) 14 WACA 267 at 268 (Per Foster-Sulton
P) Also Okonkwo v. Ogbogu (supra) at P. 435 (Per
Ogwuegbu, JSC)."
Particulars of malice were given in paragraphs 12-13 to the
effect that there had been existing misunderstanding
between the respective families of the 1st Appellant and
the Respondent. PW1 testified that she and her mother had
a quarrel with the wife of the 1st Appellant in 1993
following which the 1st Appellant threatened to resuscitate
the case of alleged acid attack against her; pages 52-53 of
the Record
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of Appeal. The learned trial Judge had drawn these
conclusions, page 69 of the Record of Appeal:
"Technically, the defendants caused the said prosecution. It
ended in the plaintiff's favour. It came about because of the
grudge defendants had against the Plaintiff for quarreling
with and calling 1st defendant's wife a harlot. The
prosecution was not induced by the desire of the
defendants to secure justice. It was propelled by the
ulterior-motive if teaching the plaintiff a lesson (so to
speak) for the vulgar insult she gave 1st defendant's wife."
Again, I must confess that I do not follow the basis for these
conclusions. He who asserts must prove. It must be
observed that aside from giving the year in which this
quarrel and ensuing threat were alleged to have happened,
PW1 gave no further precise details of the event. Her
mother who was alleged to have been part of the quarrel
did not testify. The 2nd Appellant was not mentioned to
have had anything to do with this quarrel or threat or even
to have been present when it took place. The conclusions of
the learned trial Judge did not flow from the evidence.
In paragraph 11 of Amended
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Statement of Claim at page 38 of the Record of Appeal, the
Respondent alleged that the Appellants were not at all
related to Chinwe Mba, who was an adult and a mother at
the material time. She pleaded that the Appellants were
from Amadim-Oko Local Government Area of Enugu State
while Chinwe Mba was from Orumba Local Government in
Anambra State. As PW1, she testified, page 53 of the
Record of Appeal, that:
"Chinwe Mba is from the same Nanka in Anambra State of
the country with me... Defendants hail from Enugu State.
Defendants do not have blood relationship with Chinwe
Mba."
But the Appellants had pleaded to the contrary. DW1 said,
page 53 of the Record of Appeal:
"I know the defendants. They are my cousins. I know
plaintiff and Nkiru Obi. They used to be my friends…"
Under cross examination at page 57 of the Record of
Appeal, DW1 said:
"I am from Enugu State. My town is called Ezeagwu (sic)."
DW2 also testified that both DW1 and the 2nd Appellant
are his cousins. He said he was from Ezeagu Local
Government in Enugu State. In further explanation of his
relationship with DW1, he said:
"My mother was (sic) the same father and mother with
DW1."
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The learned trial Judge found that the Respondent was not
cross-examined on her testimony on the nativity of DW1
and of the Appellants. In his conclusion, the learned trial
Judge, page 67 of the Record of Appeal, said:
"At the end of her testimony, the assertion that the
defendants came from Enugu State, while DW1 and herself
are from Anambra State went unchallenged. I believe and
accept plaintiff’s aforestated evidence accordingly... I reject
the evidence of 1st defendant and DW1 given at defence
stage of their cousinhood as belated."
I also do not appreciate this conclusion. Having denied the
averment of the Respondent on their nativity and
relationship with Chinwe Mba, the parties had joined
issues. The question is, would simply asserting that a set of
people are not related or that they come from a certain
place constitute proof of same without more? I think not.
The pleading and evidence of DW1 and DW2 affirm that a
relationship exists between the appellants and DW1. The
bare faced assertion of the Respondent to the contrary
cannot constitute proof of same. The prosecution of the
Respondent has
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therefore not been shown by the evidence to have been
activated by malice against the plaintiff by the defendant.
The conclusion to be reached is that three of the elements
that constitute false imprisonment and malicious
prosecution were not proved by the Respondent. The
judgment of the learned trial Judge was therefore not
sustainable having regard to the evidence adduced before
him. Issues 1 and 2 are thus resolved in favour of the
Appellants.
Issue 3
Having resolved Issues 1 and 2 in favour of the Appellants,
it follows that the award of the sum of N25,000.00 to the
Respondent as damages for false imprisonment and
another N25,000.00 as damages for malicious prosecution
cannot stand. These awards are therefore liable to be set
aside. Issue 3 is accordingly resolved in favour of the
Appellants.
This appeal is meritorious and is hereby allowed. The
judgment of the High Court of Benue State sitting at
Katsina-Ala in Suit No. KHC/66/96, delivered on July 17,
1997 is hereby aside in its entirety.
The Appellants are entitled to costs which I assess at
N100,000.00.
JUMMAI HANNATU SANKEY, J.C.A.: I have had the
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advantage of reading in draft the Judgment delivered by my
learned brother, Otisi, JCA.
Being in agreement with the reasons he gives for allowing
the Appeal, I too find the Appeal meritorious and would
allow same. I endorse the order as to costs.
JOSEPH EYO EKANEM J.C.A.: I read in advance the
judgment which has just been delivered by my learned
brother, Otisi, JCA. I agree with the reasoning and
conclusion therein which I adopt as mine.
I also allow the appeal and abide by the consequential
orders made in the lead judgment.
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Appearances:
G. Ofodile Okafor, Esq. SAN with him, Mrs. D. S.Obademi For Appellant(s)
For Respondent(s)
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