Benson Ikoku V. Enoch Oli (1962)

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UNSWORTH,F.J

This is an appeal from a decision of the High Court of the Eastern Region awarding to the respondent as plaintiff, the sum of  £705-10s-0d in a claim for damages for malicious prosecution.

The circumstances of the case are that on or about the 23rd March, 1955, the appellant made a complaint against the respondent in the following terms:

‘Yesterday 22nd March 1955 at about 8.30 a.m. I was in my house at Oba, one Enoch Oli of Oba came to my house in the company of one Obishiri Aniekwe. Thomas Enechuku, Madukegbu Nwokolo. Obiefuna Nwataka, all of Oboji quarter Oba, also Iwuoba Agwuegbue, Obanwuzia Nnabude, Onyemenam Onachuku, Ndubuisi Otadike, Ezekiel Onyeagbanusi and so many others I cannot remember now. Enoch Oli the ring leader ordered them to damage all that they see in my house because he has said that I will no longer live there as he disputed with my junior brother Godfrey lkoku over his house that he refused him to stay at Port Harcourt. I had no previous quarrel with him other than the case he had with my junior brother Godfrey. The following things were damaged: two palm trees, two coconut trees, four bundles of zince valued £5-1 Os-ad each valued £22, one 5 gallon iron pot, one basin, five bags of cement and all the plants I collected for my yams were removed by them. The total being f.40—Signed Benson Ikoku.’

The respondent was duly prosecuted with nine others on charged of stealing and unlawful damage to property, and conduct likely to cause a breach of the peace. The respondent was acquitted and thereupon instituted these proceedings for malicious prosecution.

It appears from the opening address of Counsel in the Court below that it was not in dispute that the appellant was the prosecutor, and in his closing address Counsel for the appellant said:-

‘Plaintiff must prove 4 ingredients. There is authority in Nigeria that if a prosecution has been brought about by deft he is deemed to be prosecutor. 14 W.A.C.A at 276. Defendant is one who instituted prosecution (2) Was prosecution determined in favour of plaintiff. 25 Hals (3rd Edition) 354 section 693 and 4. Prosecution terminated in plaintiffs favour. It is with (3) and (4) grounds that I ask Court to dismiss plaintiffs case.’

One ground of appeal that was argued was that the trial Judge did not direct his mind to the evidence of Theophilus Ugwunezbulam, a Police Officer, who said that he was satisfied that the respondent had committed the offence. Counsel said that this was relevant on the issue of whether the appellant was the prosecutor. In reply Counsel for the respondent drew attention to the references in the record referred to above, and pointed out that it was admitted in the court below that the appellant was the prosecutor. The issue in that Court was whether the prosecution was without reasonable or probable cause, and malicious. In these circumstances I do not think that this ground of appeal can succeed or that we should now consider whether or not the appellant was the prosecutor.

A further ground of appeal was that the Judge wrongly refused to permit cross-examination of the Police Officer on statements made to him. It was submitted that the statements, and the evidence of the persons who gave them, would be admissible to prove reasonable and probable cause for the prosecution. I gathered from Chief Rotimi Williams that this ground of appeal was really subsidiary to the first ground of appeal and was dependent on the supposition that the appellant was not the prosecutor. lt follows that this ground of appeal cannot succeed. The basis of the case was the allegation made to the Police Officer, and statements taken by the Police cannot be relevant to the issue of reasonable and probable causes for the making of an allegation before the statements were taken.

The main ground of appeal was that the trial Judge was wrong in deciding the case on the balance of probabilities. Counsel referred to the wording of the complaint which he said must be proved to be false. He submitted that by virtue of s, 137(1) of the Evidence Act the allegation that the appellant made a false report to the Police should have been proved with the standard of proof that is required in a criminal case, as it amounted to an allegation that the appellant had committed a crime contrary to Section 125A of the Criminal Code. In arguing this point, Counsel also referred to the wording of paragraph 3 of the Statement of Claim, the findings of the trial Judge, Section l25A of the Criminal Code and Section 137(1) of the Evidence Act.

These are as follows:-

Statement of Claim

‘On or about the 23rd day of March, 1955 the defendant falsely and maliciously and without reasonable or probable cause lodged a complaint before the Police Authorities Onitsha charging the plaintiff with stealing and wilful and unlawful damage to property and conduct likely to cause a breach of the peace and caused the plaintiff to be arrested and to be sent for trial in the Magistrates Court Onitsha on the said charge.’

Finding of the trial Judge