Alhaji Jibrin Garba V. Alhaji Isa Tarihu Maigoro (1992)
LawGlobal-Hub Lead Judgment Report
OKEZIE, J.C.A.
This appeal is against the judgment of the High Court of Gongola State Holden at Yola in a claim for damages for defamation of character, malicious prosecution and injunction.
The parties exchanged pleadings. The plaintiff testified and called 4 witnesses and the defendant who also testified called one witness.
The case for the plaintiff was briefly: that he was a plaintiff in an action against the defendant in the High Court, while the defendant was a complainant in a criminal case on allegations of criminal defamation of character against the plaintiff at the Area Court. That the defendant lodged a report with the police that the plaintiff set fire on his vehicle parked in front of his residence on the 21st November, 1988.
Consequently, the plaintiff was arrested, interrogated and detained for about two days. The Police later charged the plaintiff with an offence of mischief by fire before the Upper Area Court Yola. He was discharged on the 13th, February, 1989 on the ground that the prosecution failed to establish a prima facie case.
The complaint was that at the time the report was made the defendant knew that the report he was making was false, and the false report was made maliciously and negligently. He alleged that the false and malicious allegations caused him great anxiety and ridicule. He suffered spite to reputation and business by the continuous act of the defendant out of spite, malice and hatred. The plaintiff therefore claimed N500, 000.00 Damages.
The case for the defendant is that on 21st November, 1988 at about 3.00a.m unknown person(s) set fire on one of his vehicles parked in front of his residence. He agreed that he lodged a complaint thereof to the police. When asked if he suspected anyone, he answered in the negative. Whereof he was asked if he had any misunderstanding with any person howsoever, whereupon the defendant mentioned the plaintiff as his political rival. According to the defendant, the police on their own, thereafter arrested the plaintiff interrogated and prosecuted him.
From the pleadings it is common ground that the plaintiff was prosecuted.
The judgment in the case was given “I accordingly discharge both accused persons ……., the Judge holding that the prosecution has failed to establish any prima facie case against both accused persons. He was relying on the ruling according to his proceedings in evidence as Exhibit E.
The trial Judge after reviewing all the evidence adduced was satisfied that there was prima facie absence of reasonable and probable cause, that the prosecution was instituted by actual malice on the part of the defendant and that the prosecution was determined in favour of the plaintiff. Thus the plaintiff has established prima facie malicious prosecution and defamation of character. He awarded the sum of N20, 000.00 damages to the plaintiff against the defendant.
The defendant appealed against the decision on one original, ground of appeal.
He sought and was granted leave to file 8 additional Grounds of Appeal numbered 1 to 8. The one original ground renumbered ground 9.
For this appeal, the appellant filed 9 nine grounds which may be summarized as follows:
1. The learned trial Judge erred and mis-directed himself in law and facts when he held “As to whether the defendant has acted without reasonable and probable cause. I list below what I regard as unreasonable and not probable cause of conduct of the defendant.
(a) The plaintiff’s house at Shinco Road is far (over one mile or about 2 Km from the house of the defendant where the defendant’s car was burnt on the 21/11/87 and so is not reasonable to suspect the plaintiff’.) See p. 42 lines 2081-2085.
2. The learned trial Judge erred and misdirected himself in law and fact when he found and held as unreasonable as follows:
“(b) There is lapse (sic) of time between the time the defendant was alleged to have been defamed by plaintiff (when the defendant alleged that plaintiff said that defendant sold Ganzaki Traders to Local Government (sic) Chairman Aspirants) and the time when defendant’s vehicle was burnt. The politics and elections were in November 1988 almost one year lapse. Furthermore, the defendant did not say that as at November, 1988 this politics and elections or any other elections was going on to justify his suspicion of the plaintiff and plaintiff’s (sic) “close supporter” Sanda S/pawa (See p.42 lines 2085-2094.)
3. The learned trial Judge erred and misdirected himself in fact and law when he held as unreasonable and without probable cause “(c) The defendant after reporting to the police also gave GBC reporters the same information but -referred to the suspects as his political opponents and enemies not by name) (See p. 42 lines 2095-2098).
4. The learned trial Judge erred in law when he found and held as follows:
To my mind the above reasons render acts by defendant to be without reasonable cause. There circumstances influenced the police in the prosecution of a charge of mischief by fire against the plaintiff which charge is false to the defendant’s knowledge. (See p. 42 last five lines)
5. The learned trial Judge erred in fact and law when he held (d) the defendant regarded the plaintiff as unpunished offender….” When the finding is not backed by any evidence in the records.
6. The learned trial Judge erred in law when he believed and held that “The allegation is not the fact that the defendant’s vehicle was burnt but that it was the plaintiff and one Sanda Sarkin Pawa who burnt the defendant’s vehicle” (see p. 46)
7. The learned trial Judge erred in law and fact when he held: ”…the defendant did not make any serious or meaningful effort to apologise or settle this matter out of court when the matter was pending.
8. The trial court erred in law when he awarded the respondent N20, 000 damages.
The appellant has framed three issues for determination. They are set out below:
“(1) Whether from the evidence adduced, the plaintiff/respondent proved defamation of character and malicious prosecution against the defendant/appellant.
(2) Whether the learned trial Judge was right in finding suo motu that the appellant did not make any settlement more without evidence from the parties.
(3) Whether there was proper basis for the award of N20, 000.00 damages to the respondent.”
The respondent formulated three issues for determination:
“(1) Whether the respondent proved his case and claims against the appellant as formulated, and as required by our laws of malicious prosecution and defamation of character.
(2) If (1) is the affirmative, whether the respondent was not entitled to N50, 000.00 (Fifty thousand Naira) damages as indicated before slashing the damages to the sum of N20, 000.00 (Twenty thousand Naira)
(3) Whether having regards to issue (3) of the appellant’s brief of argument on the basis for the award of N20, 000.00 damages, and on grounds (8) of the additional grounds of appeal, the respondent is not entitled to the proposed N50, 000.00 (Fifty thousand Naira) damages on the claim of N500, 000.00 (Five hundred thousand Naira) as damages for malicious prosecution, false imprisonment and defamation of the respondent.”
It is trite law that in an action for malicious prosecution the plaintiff must prove that the prosecution was commenced at the instance of the defendant who set the law in motion against him leading to criminal charges. He was prosecuted and the criminal prosecution terminated in his favour.
There are two other ingredients which a plaintiff has to prove in order to succeed in a claim for malicious prosecution:
(a) That the prosecution was instituted maliciously; and
(b) That the defendant acted without reasonable and probable cause. All these four ingredients above must be present for successful action for malicious prosecution, and the onus is always on the plaintiff to prove each and every one of them. See Alhadi v. Allie 13 WACA 323; Balogun v. Amubikanhim (1989) 3 NWLR (Pt. 107) pp. 18 and 27.
Learned counsel for the appellant adopted the appellants’ brief of argument dated the 29th October 1990 and filed on the 8th November 1990. He submitted on grounds 1 to 6 that the onus of proof is on the respondent to prove malicious prosecution and defamation of character. He further contended that the conclusion reached by the learned trial Judge at page 42 of the record in proof that the appellant acted unreasonably and without probable cause, were not well founded based on the evidence adduced. He said that the acts of the appellant under reference if anything were reasonable and rational, the same not coming within the meaning ascribed thereto by the learned trial Judge. He argued that the appellant mentioned the respondent’s name to the police in answer to a police question, on who his adversaries were. Such a disclosure was not a positive accusation of the respondent to warrant his prosecution by the police.
He submitted that the police decided on their own to commence criminal proceedings against the respondent. The appellant infact repeated in Exhibit ‘E’ that he mentioned the respondent’s name inter alia in response to the police questions.
In his reply learned counsel for the respondent said that the appellant did not just mention but directly reported and emphatically indicated that the respondent and others at large were responsible for the acts of burning his vehicle, the appellant’s acts he said were not only positive but conclusively false accusations of the respondent to the police and were directly responsible for the prosecution of the respondent.
He further argued that the appellant set the law and the machinery in motion for the prosecution, illegal detention and incarceration of the respondent; this was far more patent when the acts of the appellant showed and indicated instructively that under no circumstances should he be released on bail by the Police at the police Headquarters Yola. In this case the learned trial Judge made findings at page 40 of the proceedings as follows:
“(a) P.W.4 said under cross-examination by defence counsel ”When I was there at CID HQS I saw the defendant come and invited (sic) one police man by name Dandada and the defendant told PC Dandada to hold or continue to detain the plaintiff very well.”
This corroborates the plaintiff’s testimony that he overheard defendant telling police not to give him bail while plaintiff was inside the police cell.
(b) P.W.1 the plaintiff himself in his testimony said ”The defendant has been telling people that he has caused my arrest and detention. Even I overheard defendant telling police not to give me bail while I was in police cell…….”
With respect to the learned trial Judge this finding was made in error. The issue would be resolved by a careful consideration of the pleadings and evidence adduced by both parties. It is trite law that a party cannot lead evidence not raised in his statement of claim unless raised by the defence. The respondent and P.W.4 maintained that they overheard the appellant instruct the police not to grant bail to the respondent while he was in police custody. Nowhere was it pleaded in the statement of claim. It was evidence of fact that goes to no issue and should be disregarded: See Aniemeka Emegokwe v. James Okadigbo (1973) 4 S.C. p. 113 and George & Ors v. Dominion Flour Mills Ltd. (1963) 1 All NLR p. 71 (1963) 1 SCNLR 117.
It is true that appellant’s vehicle was destroyed by fire set by unknown persons. He suspected the respondent and reported the matter to the police charged with the responsibility to investigate criminal complaints. It is also evident that the police investigated and decided to charge the respondent of a crime of mischief by fire. He left the police the freedom of action to charge or not: See Payin & anor v. Aliuah 14 WACA 267.
I venture to say here that the appellant will not be liable on a mere suspicion that the respondent burnt his motor vehicle. What the appellant did was to put the police on enquiry to track the culprit. He was not actively responsible or instrumental in setting the law in motion.
It seems fairly well settled that in an action for malicious prosecution the plaintiff has to establish that the defendant was the prosecutor that he set the law in motion against him, that he was tried in a court of competent jurisdiction of criminal charges and only found not guilty and discharged; that the report against the plaintiff and his prosecution was without reasonable and probable cause: In Abrath v. North Eastern Railway Co. (1883) L.R. 11 QBD 440 per Bowen L. J. held:
”That the proceedings on which he complains are instituted in a malicious spirit, that is from indirect and improper motive and not in furtherance of justice.” In the absence of proving these things, the plaintiff cannot succeed in an action of malicious prosecution.
The onus rests on the plaintiff to prove that the defendant instituted the proceedings maliciously. He failed to discharge that burden. In the instant case the defendant had reasonable grounds for honestly believing that the plaintiff burnt his vehicle and the action therefore failed: See Seton v. Oshinbule (1949) 19 NLR 9. Where a person makes a complaint against another it is incumbent upon that person to have found the true facts before making the complaint. If the police after investigation decided to prosecute as in this case, they must have realised there is a likely chance he may be guilty of the offence. The plaintiff’s prosecutor is the person who set the criminal law in motion and in the instant case it is the police: In Balogun v. Amubikanhun (1989) 3 NWLR (Pt.107) p. 18 per Belgore, J.S.C. at page 26:
“To prosecute in essence is to set in motion the law whereby an appeal is made to some person with judicial authority with regard to the matter in question and to be liable for malicious prosecution, a person must be actively instrumental in setting the law is motion. Merely giving information to the Police is not enough; that at best may lead to an action for false imprisonment if the police act on the information and make an arrest and prosecute successfully.” (See Clerk & Lindsell on Torts 15th Edition para. 1807 page 862).
In my view it was not the defendant who set the law in motion and is not liable for malicious prosecution: See M & K Ltd. v. Lamidi Apena (1969) 1 All NLR 390.
The plaintiff must also prove that the prosecution was determined in his favour: Mortimer v. Fisher (1913) 23 WLR 905 which is the case here, and at pages 8 – 9 of Exhibit E, the remark of the trial Judge shows the court discharged the plaintiff on allegation of mischief by fire made against him by the defendant which is no more than a prima fade case. As a result one of the essential ingredients of malicious prosecution was proved. For a successful prosecution of malicious prosecution to succeed, all the four elements of the tort must be present and the onus is on the plaintiff to prove each and every one of them. See Balogun v. Amubikanhun (1989) 3 NWLR (pt. 107) pp. 18, 19, 26.
In determining whether there was a reasonable and probable cause in case of malicious prosecution the test is laid down by the Supreme Court in Usifo II v. Edo & anor (1958) 3 FSC 59 (1958) SCNLR 109 the Supreme Court approved the definition of “reasonable cause” when it said that:
“In order, therefore to determine the question of reasonable and probable cause, it is necessary first to find out what were the facts as known to the defendants at the time of making the charge and then decide whether these facts constitute reasonable and probable cause.”
In this case what were the facts known to the defendant at the time the complaint was made: These are: the defendants (D.W.1) vehicle parked in front of his house was set on fire by an unknown persons on the 21st November 1988 about 3 a.m.
The defendant made a complaint to the police that he did not know who committed the act. When asked if he suspected anyone, he answered in the negative. When further asked if he had any misunderstanding with any person, whereupon the defendant mentioned the name of the plaintiff.
In any case the complaint laid by the defendant was that his vehicle was set on fire and he suspected the plaintiff. In the circumstances was the defendant justified in making the complaint to the police. I think so. The facts as known by the defendant at the time of making the complain amount to reasonable and probable cause.
The learned trial Judge was therefore in error when he held at p.43 of the record that there was prima facie absence of reasonable and probable cause. There was no direct evidence of malice in this case, yet it may be inferred from surrounding circumstances of the case when these disclose a reasonable and probable cause for the proceedings complained of. Lack of honest belief in the guilt of the plaintiff constitutes malice in fact in a case of malicious prosecution. See Payin v. Aliuah (supra) in my opinion malice from indirect or improper motive has not been proved. In the instant case the defendant had reasonable grounds for honestly believing that the plaintiff set his vehicle on fire. His action must therefore fail.
I will allow the appeal, set aside the judgment of Abba, J dated 28th November 1989 delivered at the High Court of Gongola State inclusive of costs. The suit No. GGSY/11/89 is hereby dismissed and this shall be the judgment of the court below. Costs in the lower court are assessed at N500.00 in favour of the appellant and in this court N600.00.
Other Citations: (1992)LCN/0126(CA)
