Chief L. Oyelakin Balogun V. Alhaji Busari Amubikahun (1989)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.S.C.

The appellant is a legal practitioner based at Ibadan. In his private capacity, he has a land dispute with the respondent in one of the Courts in that city. Sometime in March, 1979, with the land case still pending in Court, the appellant went to the police post at Orita Challenge, Ibadan, and lodged a complaint that the respondent, Alhaji Busari Amubikanhun, a butcher, has employed one Madam Olufunmilayo Adekunle to kill him and steal his dresses and transistor radio.

It is apparent that he created the impression that the said Olufunmilayo Adekunle was a witch and that her witchcraft would be employed to cause his death. It was alleged that the woman gained entry into the appellant’s house and actually removed a transistor radio and some dresses before she was caught. After being held by the appellant and perhaps neighbours, she confessed that she was sent on a mission by the respondent to kill the appellant.

The appellant took the woman to the police at Orita Challenge. It was already dark, perhaps after 21:00 hours. That was on 6th March, 1979. The appellant got the woman locked up at the police station. Thereafter, he took the police to the house of the respondent and got him arrested, though he claimed later that he only acted as a pointer and offered police a lift in his car to effect the arrest of the respondent. At the police station, the respondent was locked up, the appellant making his presence felt at that place and was scaring away those ready to stand surety for the respondent so that he might be released on police bail. He told one of such persons that the respondent was a murderer and that nobody should risk standing surety for him.

The respondent thus slept in the police cell that night and was only released on bail on the 7th March, 1979. The respondent was finally taken before a Chief Magistrate Court and tried jointly with Olufunmilayo Adekunle. They were discharged and acquitted of the criminal charge. It is noteworthy that the appellant not only gave evidence before the Magistrate Court, but went further to allege that when Adekunle entered his house and was discovered stealing, “she attempted to change into a cat” and that he (appellant) and others around saw “her growing a tail like a cat’s.” It was when she could no longer change completely into a cat that she confessed her mission.

Whereas, at her joint trial with the respondent, the woman confessed that she was tutored into the act of implicating the respondent by the appellant and that she was paid N300.00 by the appellant for this purpose. The magistrate had no difficulty in disbelieving the case for the prosecution and believed the trial was based on fake and malicious accusation by the appellant in conspiracy with Adekunle. This led to the action in the High Court by the respondent for malicious prosecution which was successful and was upheld by the Court of Appeal consequent upon which this appeal was lodged.

For his appeal, the appellant filed six grounds which may be summarized as follows:

1. That the Court of Appeal erred in law by holding that the appellant was the one who prosecuted the defendant, whereas the prosecution was done by the police and all the appellant did was to lodge a complaint of a crime as a good citizen. It was then up to the police to prosecute or refuse to prosecute.
2. That the Court of Appeal erred in law to find the appellant liable when the complaint of the appellant to the police was based on reasonable and probable cause that a crime had been committed.
3. That pleadings, alleging criminality ought to be proved beyond reasonable doubt by virtue of s.137 Evidence Act and because the statement of claim alleged crime, then the respondent must prove beyond reasonable doubt.
4. That the Court of Appeal erred in law by not holding that the appellant’s statement (which for no explicable reason disappeared from police case diary) which was not put before the High Court, was not fatal to the case of the respondent because other pieces of evidence abound to justify the decision of the High Court.
5. That it was the duty of the respondent as plaintiff to establish absence of reasonable and probable cause and the Court of Appeal erred by holding that he did.
6. That the award of N5,000.00 general damages as confirmed by Court of Appeal was an error in law.

The appellant’s brief of argument is in line with the grounds of appeal:

“QUESTIONS FOR DETERMINA TION

(1) On the facts established in evidence, was the Appellant in law, the prosecutor of the Respondent

(2) Did the Respondent as Plaintiff establish an absence of reasonable and probable cause for his prosecution

(3) On the evidence, was it not established that there was reasonable and probable cause for the prosecution of the Respondent

(4) Is the finding of the learned trial court that there was no stealing as alleged by the appellant material to the determination of the issues before the court and if it is, can the finding be justified on the evidence

(5) Is the statement made by the Appellant to the police on 6th March, 1979 after lodging a report (Exhibit 6) relevant in determining the actual complaint of the appellant and if it is, were its contents proved according to law