AINA v. JAMES (2020)

AINA v. JAMES

(2020)LCN/14102(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, March 24, 2020

CA/A/407/2017

Before Our Lordships:

Abdu Aboki Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

JANET IBIYEMI AINA APPELANT(S)

And

KAYODE JAMES RESPONDENT(S)

RATIO

WHETHER OR NOT A PRINCIPAL IS BOUND BY THE ACTS OF HIS AGENT

The law is settled that in an ordinary agency relationship the principal is bound by the acts of his agent that fall within the scope of his authority, thus an agent who exceeds his authority does not bind his principal. While I agree with the Trial Court and counsel for the Respondent on the bare bones of the statement of the law that an agent of a disclosed principal is in some circumstances not liable for actions performed within their scope of authority and only the principal is liable, I am afraid they all misapplied that principle to the instant action for tort; for that principle, very elementary law that it is, only applies the way the Trial Court and counsel reasoned in the area of commercial law, more specifically contract law. The cases of QUA STEEL PRODUCTS LTD v. AKPAN EKORG BASSEY (SUPRA) and AKALONU V. MRS S. O. OMOKARO (2003) All FWLR (Pt.175) 493 at 504505 referred to by Respondent’s counsel do not also aid his argument, including so many other cases cited in him, as they are cases of contract law which simply confirm the trite legal principle of agency in that area of the law. PER ABOKI, J.C.A.

TORTIOUS ACTIONS IN LAW OF AGENCY

In tortious actions the law of agency works fairly differently, in that liability in tort is both joint and several even for an agent and his principal. So that an agent, even of a disclosed principal or master, who commits a tortious action even in the course of his employment is liable personally first, and can be sued alone, just as he can also be sued jointly with his principal. See the decision of Supreme Court in the case of IFEANYI CHUKWU (OSONDU) LTD V. SOLEH BONEH LTD (2000) 5 NWLR (PT 656) 322.
The Apex Court in its later decision in IYERE v. BENDEL FEED AND FLOUR MILLS LTD (2009) ALL FWLR (PT. 453) 1217 not only confirmed its position in Ifeanyi Chukwu (Osondu) Ltd v. Soleh Boneh Ltd supra but expatiated further on the principles of agency in tortious law and actions, with Mahmud Muhammad J.S.C. (as he then was) saying at p. 1235-1236 Paras H-D thus:
“In the law of agency, the relationship which arises where when a person called agent acts on behalf of another called principal whereby the latter undertakes to be answerable for the lawful acts the former does within the scope of his authority, is what amounts to agency. Liability falls on the principal where he gives his agent express authority to do a tortious act or that which results in a tort. He may also be liable for the tort committed by his agent while acting within the scope of his implied authority. But where the tort by the agent falls entirely outside the scope of his authority, the principal is not Liable.”
See also the case of ANIOCHA NORTH LOCAL GOVT. COUNCIL & ORS v. EZE (2016) LPELR 42016 (CA).
In the instant appeal, the Appellant relied heavily on the case of BEKS KIMSE NIG LTD v. AFRICA (2015) LPELR 24436 (CA), where it was held inter alia, as follows:
“Even at the risk of repetition, I still stand by the principle that a master is always treated as a joint tortfeasor with the servant for whom he is vicariously liable. See JONES V. MANCHESTER CORP. (1952) 2 QB 852 at Page 870. Being joint tortfeasors therefore a plaintiff is at liberty to choose his victim. He may decide to sue either the master or the servant or both of them jointly. The law is clear on the premise that an agent who commits a tort on behalf of his principal and the principal are joint tortfeasors and may be sued jointly or severally. See DUMEZ (NIG) LTD. V. UKPENI (1991) 4 NWLR (Pt. 188) 734 @ 743. See also ORDER 11 RULES of the Bendel State High Court (Civil Procedure) Rules 1988 applicable in Delta State. ORDER 11 RULES of the Kaduna State High Court (Civil Procedure) Rules 1987. PER ABOKI, J.C.A.

THE TERM MALICIOUS PROSECUTION

The term malicious prosecution, imports the institution of an action, either criminal or civil, in a Court of law or Tribunal, for an improper purpose without a probable cause. Under the law of torts, to succeed in a claim for malicious prosecution, the complainant shoulders the burden to prove four elements, viz:
1. The initiation and/or continuation of a lawsuit or action;
2. Lack of probable cause for the initiation of the lawsuit or action;
3. Malice; and
4. Favourable termination of the original lawsuit or action.
It is trite law that all these elements/ingredients must be proved together, as failure to satisfy any of the elements will be fatal to the Claimant’s case. It is also the law that once a wrongful prosecution has terminated (ended) in favour of the defendant, he or she is cloaked with the discretion to sue for tort of damages. See EROMOSELE v. WERMER & ORS (2014) LPELR 22183 CA. PER ABOKI, J.C.A.

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Hon. Justice O.S.A. Obayomi of the High Court of Kogi State, holden at Egbe, delivered on the 31st of March, 2017.

The facts of this case, as can be gleaned from the Record, is that the Respondent as a representative of one Mrs. S.C. Adubairo (the Complainant), brought a complaint against the Appellant for criminal trespass, at the Grade 1 Area Court, Yagba West Local Government, Kogi State. Upon hearing the evidence of the Complainant, the Judges of the Area Court Grade 1, discharged and acquitted the Appellant. Consequent upon her discharge, the Appellant as Plaintiff/Claimant, maintained an action in malicious prosecution against the Respondent at the High Court of Justice, Kogi State, holden at Egbe, vide a Writ of Summons and statement of claim, filed on the 28th of December, 2016, claiming the following reliefs:
1. A DECLARATION that the Defendant maliciously prosecuted the Plaintiff without just cause.
2. A DECLARATION that the Defendant’s case at the Area Court 1 Egbe, having been held to be a total failure, by the same Court was

malicious, vexatious, mischievous and wicked against the Plaintiff.
3. A DECLARATION that the 83 years old great grandmother Plaintiff who has never been to Court all her life underwent a serious psychological and emotional torture with members of her large family during the period of arrest and the criminal trial, especially when she realized that the trial could lead her to jail term of imprisonment.
4. AN ORDER OF THE COURT that the Defendant should pay the sum of (Two Million Naira) only to the Plaintiff for the psychological and emotional toture which the Plaintiff and members of her large family went through by the trial.
5. AN ORDER OF THE COURT that the Defendant should pay the Plaintiff the sum of N200,000.00 (Two Hundred Thousand Naira) only as cost of the trial brought about by the Defendant maliciously against the Plaintiff at Area Court 1 Egbe, without cause.
6. AN ORDER OF THE COURT that the Defendant should pay the Plaintiff the sum of N300, 000.00 (Three Hundred Thousand Naira) only as the cost of the Plaintiff’s suit,
7. AN ORDER OF THE COURT that the Defendant should pay 25% interest of the judgment sum until the judgment sum is fully liquidated.

After the service of the originating processes on the Respondent, the Respondent joined issues with the Appellant by filing his Statement of Defence and other processes, and the matter proceeded to trial.

The story of the Appellant is that she is a widow and owner of a large plot of land located close to 3rd ECWA Church, Agidi Ododi-Egbe, given to her late husband by the entire Agidi Ododi family, when he was their Secretary General. That she lived on the said plot for over 30years with her husband while he was alive, and her children. It is her story that she employed some workers to fence the said plot and the Respondent came and arrested her, along with her son, with the Police at Egbe without giving any reason or who he was acting for. That he later instituted an action against her at the Area Court for criminal trespass, which ended in her favour as she was discharged and acquitted of the offence of criminal trespass, consequent upon which she brought this action against him for malicious prosecution.

On his part, the Respondent denied causing the arrest of the Appellant or instituting any criminal action against her in

respect of any land upon which her late husband built a house or any of its part, and that he did not join forces with anyone to gamble any land to any person including the Appellant.

At the close of trial, the Trial Court dismissed the Appellant’s suit. At page 157 of the Record, the Trial Court held as follows:
“In the instant case, it is my considered view that the claimant was only able to prove that the criminal prosecution ended in her favour with a return verdict of discharge and acquittal. She has failed to prove the remaining three elements ingredients to become successful in her claims against the Defendant and I so hold….. Flowing from all I have said thus far, it is my considered view that the Claimant has failed to prove her case of malicious prosecution against the Defendant. Accordingly, the suit fails in its entirety and same is consequently dismissed. ”

It is against this decision that the Appellant herein appealed to this Court, vide a Notice of Appeal filed on the 24th of April, 2017, upon Four (4) Grounds. (See pages 159 – 163 of the Record.)

In line with the extant Rules of this Court, parties filed and

exchanged briefs of argument, which they adopted and relied on, in support of their positions, when the appeal came up for hearing on the 29th of January, 2020.

The Appellant’s brief was dated and filed on the 10th of November, 2017, but deemed filed on the 17th of September 2018. Adamson Adeboro Esq., who settled the brief, formulated four issues for this Court’s determination. They are:
1. Whether the trial Judge was right in holding that the Respondent was not liable for the tort of malicious prosecution being an agent of a disclosed principal and his principal not being joined in the suit defeated the cause of action in the matter.
2. Whether the trial Judge was right when he held that the Appellant failed to prove malice against the Respondent to entitle her to judgment,
3. Whether the trial Judge was right when he held that the prosecution of the Appellant was done with reasonable and probable cause.
4. Whether the judgment of the Lower Court was not perverse to warrant same being set aside.

The Respondent, in his brief dated and filed on the 12th of October, 2018, and settled by Gani Asiru Esq., distilled two issues for

determination, to wit:
1. Whether the learned trial Judge was right in holding that as an agent of a disclosed principal, the Respondent cannot be held liable in tort of malicious prosecution.
2. Whether the Appellant (as Claimant) has established her case as required by law to entitle her to judgment.

I have taken into consideration all the issues raised and couched by all the parties and I have decided to adopt the two issues as raised in the brief of the Respondent, as they encompass all the issues raised by the Appellant.

ISSUE ONE
Whether the learned trial judge was right in holding that as an agent of a disclosed principal, the Respondent cannot be held liable in tort of malicious prosecution.

It is submitted for the Appellant that it is the general principle of law that an agent of a disclosed principal is not liable for his action on behalf of the principal. It is further argued for the Appellant that a plaintiff in tort is at liberty to sue either the agent or the principal. Reliance was placed on the case of IFEANYI CHUKWU (OSONDU) LTD v. SOLEH. LTD (2000) (PT 656) 322.

Learned counsel for the Appellant invited the

attention of this Court to the judgment of the Trial Court at page 154, lines 10 – 13; 23 – 27; 28 – 33 of the Record and opined that the Trial Court erred in holding that the Respondent, being the agent of disclosed principal, cannot be held liable in the tort of malicious prosecution. He maintained that the Appellant can choose who to sue, whether the principal or the agent as the principal need not be a necessary party, whose non joinder will operate to defeat the suit. He relied on the case of BEKS KIMSE NIG LTD v. AFRICA (2016) 1 NWLR (PT. 1494) 456.

Learned counsel for the Appellant posited that it is on record that it was the Respondent who reported the matter to the Police. It was also the Respondent, who acting on behalf of his principal, lodged a direct criminal complaint at the Area Court, and personally prosecuted the Appellant. The Appellant was therefore at liberty to choose not to include the name of the principal and not doing so cannot defeat the cause of her action. The following cases were relied on:
MOHAMMED v. BABALOLA (2012) 5 NWLR (PT. 1293) 395; OKAFOR v. ABUMOFUANI (2016) 12 NWLR (PT. 1525) 117;

IYERE v. BENDEL FEED & FLOUR MILL LTD (2009) 3 WRN 139

In view of the authorities cited above, this Court is urged to resolve this issue in favour of the Appellant.

The Respondent in response to the above, submitted that the law, as established by a long list of authorities, is that where a principal is known and/or disclosed, it is that principal that is to be sued in tort, and not the agent. He commended this Court to the following cases:
QUA STEEL PRODUCTS v. AKPAN EKONG BASSEY (1992) 5 NWLR (PT 239) 67;
AKALONU v. OMOKARO (2003) FWLR (PT. 175) 493;
ALLIED TRADING CO. LTD v. G.B.N. LINE (1985) 2 NWLR (PT. 5) 74.

Learned counsel for the Respondent distinguished the case of BEKS KIMSE NIG LTD v. AFRICA supra, relied on by the Appellant and submitted that the Respondent herein was not the prosecutor at the Area Court. He did not act beyond what he was directed to do, and so, cannot be liable.

This Court is urged to so hold, and resolve this issue against the Appellant.

The law is settled that in an ordinary agency relationship the principal is bound by the acts of his agent that fall within the scope of his authority, thus an

agent who exceeds his authority does not bind his principal. While I agree with the Trial Court and counsel for the Respondent on the bare bones of the statement of the law that an agent of a disclosed principal is in some circumstances not liable for actions performed within their scope of authority and only the principal is liable, I am afraid they all misapplied that principle to the instant action for tort; for that principle, very elementary law that it is, only applies the way the Trial Court and counsel reasoned in the area of commercial law, more specifically contract law. The cases of QUA STEEL PRODUCTS LTD v. AKPAN EKORG BASSEY (SUPRA) and AKALONU V. MRS S. O. OMOKARO (2003) All FWLR (Pt.175) 493 at 504505 referred to by Respondent’s counsel do not also aid his argument, including so many other cases cited in him, as they are cases of contract law which simply confirm the trite legal principle of agency in that area of the law.
In tortious actions the law of agency works fairly differently, in that liability in tort is both joint and several even for an agent and his principal. So that an agent, even of a disclosed principal or master, who

commits a tortious action even in the course of his employment is liable personally first, and can be sued alone, just as he can also be sued jointly with his principal. See the decision of Supreme Court in the case of IFEANYI CHUKWU (OSONDU) LTD V. SOLEH BONEH LTD (2000) 5 NWLR (PT 656) 322.
The Apex Court in its later decision in IYERE v. BENDEL FEED AND FLOUR MILLS LTD (2009) ALL FWLR (PT. 453) 1217 not only confirmed its position in Ifeanyi Chukwu (Osondu) Ltd v. Soleh Boneh Ltd supra but expatiated further on the principles of agency in tortious law and actions, with Mahmud Muhammad J.S.C. (as he then was) saying at p. 1235-1236 Paras H-D thus:
“In the law of agency, the relationship which arises where when a person called agent acts on behalf of another called principal whereby the latter undertakes to be answerable for the lawful acts the former does within the scope of his authority, is what amounts to agency. Liability falls on the principal where he gives his agent express authority to do a tortious act or that which results in a tort. He may also be liable for the tort committed by his agent while acting within the scope of his implied

authority. But where the tort by the agent falls entirely outside the scope of his authority, the principal is not Liable.”
See also the case of ANIOCHA NORTH LOCAL GOVT. COUNCIL & ORS v. EZE (2016) LPELR 42016 (CA).
In the instant appeal, the Appellant relied heavily on the case of BEKS KIMSE NIG LTD v. AFRICA (2015) LPELR 24436 (CA), where it was held inter alia, as follows:
“Even at the risk of repetition, I still stand by the principle that a master is always treated as a joint tortfeasor with the servant for whom he is vicariously liable. See JONES V. MANCHESTER CORP. (1952) 2 QB 852 at Page 870. Being joint tortfeasors therefore a plaintiff is at liberty to choose his victim. He may decide to sue either the master or the servant or both of them jointly. The law is clear on the premise that an agent who commits a tort on behalf of his principal and the principal are joint tortfeasors and may be sued jointly or severally. See DUMEZ (NIG) LTD. V. UKPENI (1991) 4 NWLR (Pt. 188) 734 @ 743. See also ORDER 11 RULES of the Bendel State High Court (Civil Procedure) Rules 1988 applicable in Delta State. ORDER 11 RULES of the Kaduna State High Court (Civil Procedure) Rules 1987.

I shall however conclude by referring to the dictum of Iguh JSC at pages 366-367 in SALMON THE LAW OF TORT where he clearly stated as follows: “It is beyond dispute that an agent who commits a tort on behalf of or on the instruction of his principal is along with the said principal, a joint tortfeasor in law. The same is true where a servant commits a tort in the course of his employment. He and his master are in law equally Joint tortfeasors as the law in appropriate cases, imputes the commission of the same tort or wrongful act on both of them jointly.”
From the above dicta, it is evident that the Respondent, though an agent of a disclosed principal, cannot by any means, contrary to the reasoning of the Trial Court and the argument of counsel for the Respondent, escape liability in tort, if any, on the ground only that he is an agent of a disclosed principal, and acted within the scope of his authority.
I therefore answer this issue in the negative, and hold that being an agent of a disclosed principal; the Respondent is a joint tortfeasor with the principal and can be sued jointly and/or severally. The Trial

Court was wrong to hold otherwise.
This issue is resolved in favour of the Appellant.

ISSUE TWO
Whether the Appellant (as Claimant) has established her case as required by law to entitle her to judgment.

It is submitted for the Appellant that the Appellant proved all the necessary ingredients, to entitle her to judgment, and the Trial Court erred in holding otherwise.

Learned counsel for the Appellant defined malice as a desire (or deliberate intent), to inflict injury, harm or suffering on another, either because of a hostile impulse or out of deep seated meanness. He relied on the case of BAYOL v. AHEMBA (1999) 10 NWLR (PT 623) 381 and stated that there was ample evidence on record to show that the Respondent maliciously reported the Appellant to the Police and filed a criminal complaint against her. He maintained that the Respondent was motivated by malice in prosecuting the Appellant, as the intendment of the Respondent was to coerce the Appellant into submission, and this according to him, established malice in the matter. He cited the case of BALOGUN v. AMUBIKAHUN (1989) 13 NWLR (PT 107) 18 @27.

On whether the trial Judge

was right when he held that the prosecution of the Appellant was done with reasonable and probable cause, it is the view of learned counsel for the Appellant that the issue of reasonable or probable cause was punctured by the evidence before the Trial Court that the Police had advised the parties that the matter was purely civil, bordering on land matter and there was no criminal element involved. According to him, the insistence of the Respondent on personally laying a direct criminal complaint against the Appellant and the subsequent prosecution defeated the reasonable and probable cause in the action of the Respondent. He maintained that to establish reasonable and probable cause, the belief in criminal culpability of the Plaintiff must be honest, based upon full conviction founded upon reasonable grounds to a set of facts and circumstances which of truth would lead every reasonable person to believe the Plaintiff has committed an offence, which was not so in the instant case. He relied on BALOGUN v. AMUBIKAHUN(supra).

On whether the judgment of the Trial Court was not perverse to warrant same being set aside, it is the view of learned counsel for the

Appellant that the finding of the Trial Court that the Appellant only proved one of the four ingredients of the tort of malicious prosecution, is contrary to the evidence on record. He argued that the evidence led in the case supports the case of the Appellant and the Trial Court was wrong to have held otherwise. This Court is urged to intervene and set aside the judgment of the Trial Court, as it failed to properly evaluate the evidence on record.
He commended this Court to these cases:
EHOLOR v. OSAYANDE (1992) NWLR (PT. 249) 524;
UDENGWU v. UZUEGBU (2003) 13 NWLR (PT. 836) 136;
JOLAYEMI v. ALAOYE (2004) 12 NWLR (PT. 887) 322.
He urged this Court to resolve this issue in favour of the Appellant.

In conclusion, this Court is urged to resolve all the issues raised in this appeal in favour of the Appellant, allow the appeal and set aside the decision of the Trial Court.

In response, it is submitted for the Respondent that the Trial Court was right to have held that the Appellant did not establish the tort of malicious prosecution, against the Respondent.

Learned Counsel for the Respondent invited this Court’s attention to

the record of proceedings of the Area Court admitted in evidence as Exhibit C3, and submitted that from the evidence on record, the finding of the Trial Court that the Appellant failed to prove malice and lack of probable cause, cannot be faulted, as these two ingredients must be proved in the tort of malicious prosecution. He relied on the case of SELON v. OSHINBULE 19 NLR 9.

In the opinion of learned counsel for the Respondent, the case of BAYOL v. AHEMBA supra; heavily relied on by Counsel for the Appellant is not on all fours with the instant case. He maintained that the fact that the Appellant was successful at the Area Court is not a ground that there was no reasonable and probable cause or that the complainant was motivated by malice. According to him, if the Police in the instant case had warned the parties not to go to the land and the Appellant (or her agent) went there in defiance to the Police warning, then there is a probable cause to go to the Court.

He urged this Court to resolve this issue in favour of the Respondent and hold that the Appellant has failed to establish a case of malicious prosecution as required by law.

In conclusion, this Court is urged to resolve the issues raised in this appeal against the Appellant, dismiss the appeal and affirm the judgment of the Trial Court.

In the instant case, the Appellant’s pleading vide the statement of

claim thereof is contained at pages 5 – 10 of the Record. Of the 30 paragraphs of the said statement of claim, paragraphs 3 – 19; 25 – 26 are most instructive, thus:
3. The Defendant caused the Plaintiff to be arrested along with one of her son Pastor Tayo Ekundayo by the Nigerian Police Force at Egbe for employing some workers to fence the husband’s building on the above plot.
4. That after the arrest initiated by the Defendant, the Divisional Crime Officer (DCO) ordered that the incident be investigated. The Police after investigation out rightly released the Plaintiff and her son and informed the Defendant that the action of the Plaintiff and her son was not any way criminal, and that if the Defendant has any grudges against the Plaintiff, he should seek civil redress in Court.
5. That rather than taking the advice of the Divisional Crime Officer, the Defendant in a desperate move to intimidate the Plaintiff initiated a criminal trial against the three workers employed by the Plaintiff to work at the site.
6. That the Plaintiff was present in Court during the arraignment of the three workers and she was the one who stood as surety

for the workers when they were granted bail and subsequently discharged
7. That the Court could not see any merit in the criminal trial of the workers employed by the Plaintiff. They were all discharged by the Area Court 1 Egbe for the case of the Defendant lacking in substance,
8. That the Defendant obviously acting on the instruction of an undisclosed principal and grabber of land initiated a criminal case of criminal trespass over and upon the land which form part of the large expanse of land on which the Plaintiff late husband built his house,
9. That in the cause of hearing of the case, one Chief Folorunsho Fagbonjaiye came and disrupted the Court proceeding during the visit to the Locus in quo. The same Chief later came to the Court to testify for the Defendant as PW2.
10. That all the actions of the Chief during the visit to the locus in quo and when he later came to testify in court clearly indicated that the Defendant is working together with the Chief to use the criminal trial and intimidate the Plaintiff in order to take over part of her late husband’s land.
11. That during the criminal trespass trial of the Plaintiff at

the Area Court 1, Egbe, the Defendant immediately after being affirmed to testify (on oath), informed the Court that he is not the owner of the plot of land (the subject of litigation), for which he initiated the criminal trespass trial against the Plaintiff, and that he is not ready to; and will not disclose the owner of the land.
12. It is part of the Defendant’s testimony during the criminal trespass trial of the Plaintiff that the Plaintiff was and still is in possession of the land in issue for more than twenty (20) years, which the PW2 also conformed in his evidence.
13. That the Defendant equally stated that all the trees on the large expanse of land were planted by the Plaintiff and her family members.
14. The Defendant further stated at the criminal trespass trial of the Plaintiff that the Plaintiff is the owner of the next adjourning land and the house therein and has been in occupation for a long time that he cannot be precise about but obviously more than twenty (20) years.
15. That after the close of the Prosecution’s case, the whole evidence of the complainant and PW1 contradicts each other that the Court could not pick and

choose which one is true as the whole evidence was full of contradiction.
16. That the trial ended in favour of the Plaintiff (the accused person) as the Defendant (The Prosecution), cannot establish a single ingredient of the offence of criminal trespass.
17. That the Trial Court (Area Court 1 Egbe) finally discharged and acquitted the Plaintiff of the offence of criminal trespass and concluded with the verdict that the case of the Defendant (The Prosecution) was a total failure.
18. That I strongly believe that there is nobody with the name – Mrs, Ikeoluwa Adubiaro whom the Defendant purportedly represented at the Area Court 1 Egbe as the testimonies of the Complainant – PW1 and PW2, were shrouded in secrecy.
19. That it was the Defendant who set the law in motion from the start to the finish taking instructions from PW2, (Folorunsho Fogbonjaiye) in order to intimidate the Plaintiff and take away her late husband’s property.
25. That the whole criminal trial of the Plaintiff at the Area Court 1 Egbe is in pursuance of an agenda to force the Plaintiff out of her family land.
26. That the initiation of Force arrest and

subsequent criminal trial of the Plaintiff at the Area Court 1 Egbe, even when the Police Officer at Egbe Station made it clear to the Defendant that there was nothing criminal about the action of the Plaintiff, is not only malicious, but vexatious, mischievous and wicked by the Defendant against the Plaintiff.

In addition to the averments contained in the said statement of claim thereof, the Appellant testified on her behalf in line with her pleadings and tendered three documents which were admitted as Exhibit C1 (Deji Aina & Co., Receipt No. 000228, for the sum of N200,000.00), Exhibit C2 (Deji Aina & Co, Receipt No. 000276 for the sum of N300,000.00, and Exhibit C3 (Record of proceedings from Area Court 1, Egbe).

During cross-examination, she confirmed knowing Chief Folorunsho Fogbonjaiye as a chieftaincy title holder at Ododi Egbe. She also confirmed that she relied on Exhibit C3, to say that she was prosecuted at Area Court, Egbe, adding that it was Chief Folorunsho Fogbonjaiye that stood for the Defendant against her at the Area Court, and that he was the one that instigated the Respondent against her, adding that though it was the

Respondent who prosecuted her at the Area Court, Egbe, he was instigated by Chief Fogbonjaiye.

Contrariwise, by the averments contained in the statement of defence, the Respondent averred inter alia; thus:
4. That the Defendant denies ever cause(sic) the Plaintiff to be arrested by any member of the Nigeria Police Force either at Egbe or elsewhere as he is never a member of the Nigeria Police and has no control over the Police as the Police has the discretion on matter of arrest.
5. The Defendant denies ever prosecuting the Plaintiff/Claimant in any Court for the offence whatsoever and the Plaintiff/Claimant is put to the strict proof of the assertion.
6. The Defendant denies ever causing the arrest of the Plaintiff’s workers by the member of the Nigeria Police and the Police, who are doing their job, knows when and who to arrest as the Defendant cannot dictate to them or control them in their modus operandi.
8. The Defendant denies ever instituting any criminal action against the Plaintiff in respect of any land upon which the Plaintiff’s husband built house on any part of it and would not know if ever her husband ever built house or

not as contained in Paragraph 8 of the statement of claim and the plaintiff is put to the strictest proof thereof.

At the trial, he testified in line with his pleadings, and denied having any personal issue with the Appellant and was therefore not liable to her in any tort.

Above is the state of the case presented before the Trial Court by each of the parties. The question that arises from the pleadings and evidence of the parties is whether the Respondent can be said to have prosecuted the Appellant in the sense that it set the law in motion for the prosecution against him. For the purposes of the claim for malicious prosecution, to be liable, a defendant must be actively instrumental in setting the law in motion for the prosecution of a plaintiff. Within the context, to prosecute is to deliberately and actively initiate or instigate by way of a direct appeal to or pressure on a person with judicial authority with regard to a complaint or report made that the plaintiff be charged and put to trial.
Thus for a defendant to be shown to have set the criminal law in motion against a plaintiff, it must be proved by evidence that the defendant had in

any manner directly influenced the police in the decision to charge the plaintiff to Court on the complaint made.
Consequently, it is the law that an action for malicious prosecution will not lie against a person who merely gave information to the police by way of a report or complaint of the commission of an offence, which led the police on their own initiative to arrest, and eventually charge another to Court after their investigation of the complaint. If the evidence did not show that the defendant influenced the police in any way in the decision to prosecute a plaintiff, then the prosecution cannot and will not properly be attributable to the defendant, but to the police. See
BALOGUN v. AMUBIKAHUN (1989) LPELR 725 (SC); CHUKWUMA v. IFEAMULUME (2017) LPELR 43028 (CA); SPDC v. OLAREWAJU [2008] LPELR 3046 (SC).

In this appeal, the evidence adduced by the Appellant as plaintiff, [summarized earlier] did not show or establish that the Respondent did anything to influence the prosecution of the Appellant, apart from making a report or complaint to the police, as a representative of one Mrs. S.O. Ikeoluwa, who was the actual complainant.

This much has been amply demonstrated by Exhibit C3. Put differently, there is nothing before the Court to show that it was the Respondent who influenced and/or instigated the Police, against the Appellant.

As a result there is no evidence on the basis of which the Respondent can properly and reasonable be found to have prosecuted the Appellant in respect of the complaint. My finding on this first element of the claim for malicious prosecution is that it was not proved on the balance of probabilities by the evidence of the Appellant.

On the second element, which is that as a result of the prosecution, the claimant was discharged and acquitted, it is crystal clear from Exhibit C3 that the prosecution ended in favour of the Appellant, as she was discharged and acquitted. The Area Court 1 Egbe at page 107 of the Record, held as follows:
“In the light of the application of No Case Submission is hereby upheld as prima facie of this case has not been made out against the accused as the main ingredient which is the possession of land not been proved against the accused person. As such, accused person is hereby discharged and acquitted forthwith.”

Accordingly, it is my view that this element was proved by the Appellant.

I now proceed to consider the third and fourth elements of malicious prosecution which, in view of their overlapping and intertwined nature, I intend to consider together and resolve them in one fell swoop. The Trial Court by its finding held that the third and fourth elements, namely; the absence of probable and reasonable cause and presence of malice, had not been made out against the Respondent. The Appellant’s counsel contended vehemently that the third and fourth elements were in fact made out against the Respondent contrary to the findings of the Trial Court, which he urged this Court to hold was in grave error and perverse and should be set aside.

The question of presence of malice and lack of reasonable and probable cause is perhaps the most important elements in the tort of malicious prosecution. This is so because in law, liability for malicious prosecution does not lie merely by reason of the acquittal of the Plaintiff but on whether the prosecution from which he was discharged was initiated or set in motion by the Defendant without probable and reasonable

cause and actuated by malice. Consequently, without the presence of malice and the absence of probable and reasonable cause, an acquittal alone does not amount to the tort of malicious prosecution once the prosecution is shown to have been done on the existence of probable and reasonable cause and without malice.
In Balogun V. Amubikahun (Supra) @ p. 265, Nnaemeka Agu JSC., had poignantly captured the real essence of the place of malice and lack of reasonable and probable cause thus:
In my view, the law appears to be now settled. If a person simply makes a report to a Police officer a ministerial officer and the Police using their discretion decide to arrest, charge and prosecute the suspect, the person making the report, if liable at all will be liable for false imprisonment on the ground that he set in motion a ministerial officer and not a judicial officer. He would only have been liable for malicious prosecution if he set in motion the action of a judicial officer. But where the person making the report knew at the time he was making the report that the whole case was false and fabricated and that he has merely used the Police to give vent to his

malicious venom against the person to be charged then, though technically he has not prosecuted that person, the law will not allow him to escape liability by saying that the Police discretion interposed between the report and the prosecution… ”

In applying the above well settled position of the law to the pleadings and evidence of the parties, I do not see any iota of evidence of malice against the Respondent. After considering the evidence adduced at trial, the Trial Court had this to say at pages 156 – 157 of the Record:
“On the third element/ingredient which is that the prosecution of the claimant was completely without reasonable and probable cause, the evidence shows clearly that the defendant believed the land upon which the workers of the claimant were working belong to Mrs. S.C. IKEOLUWA Mubairo (the complainant), and not the claimant. That was what informed his reporting the matter to the said Mrs. Adubairo who instructed him to report the matter to the Police, which led to the prosecution of the claimant. The law is settled that in order to determine the question of reasonable and probable cause, it is necessary to find out what

were the facts as known to the defendant at the time of making the charge to decide whether those facts constitute reasonable and probable cause and this can only be considered properly by setting out and examining the circumstances which led to the charge….Furthermore, an honest belief by the defendant in the guilt of the claimant before setting in motion the prosecution is complete defence to the action of malicious prosecution… The circumstance and facts of the instant case demonstrably show that the defendant believed that the land upon which the claimant’s workers trespassed does not belong to her, to be Mrs. SO. Ikeoluwa Adubairo, who he represented. It is my considered opinion that based on the facts and circumstances of this case, the prosecution was done with reasonable and probable cause, and I so hold. On the fourth element/ingredient which is that the prosecution was maliciously done or done with malice, it is clear from the evidence that the defendant had no previous quarrel or misunderstanding with the claimant before the matter of trespass by her workers. Malice has been defined to mean the intent, without justification, or excuse to commit a

wrongful or illegal act. It is the reckless disregard of the law or of a person’s legal rights, ill will or wickedness of heart. It also means a wrongful intention. In order to establish malice, a party must adduce such evidence that raises probability of malice consistent with its existence than non existence… The law is settled that merely making a statement to the Police is no proof of malice. The Defendant must have done more than merely reporting the incident to the police, such as if after investigation, he was told by the police that there was no case or that the facts contained in the defendant’s statement to the police is false to the knowledge of the defendant. It is my considered opinion that the facts as presented to the police are such that there cannot be imputation of malice on the part of the defendant. He was in charge of the land of the complainant and when he saw other persons working on the land, he reported to the police and the police advised the said workers not to go to the land again, but the workers did not heed the Police’s advice but rather went back to the land to continue the work which made the defendant went (sic) back to

report to the Police. In the circumstance, I cannot see any element of malice in the act of the defendant and I so hold. Accordingly, I hold that the prosecution of the claimant was without malice against her…”

I cannot agree more with this finding by the Trial Court. The evidence of the Respondent at page 23 of the Record, clearly, in my view, shows his honest belief that his report to the Police was to bring the alleged offenders to justice and therefore, the mere fact that the Appellant was eventually discharged and acquitted alone does not in my finding render the Respondent liable for damages for malicious prosecution. I therefore agree completely with the Trial Court that in the absence of malice and reasonable and probable cause, a discharge and acquittal by itself alone does not constitute the tort of malicious prosecution.

In the circumstances, this issue is resolved against the Appellant in favour of the Respondent.

In the final analysis, this appeal succeeds in part, and it is also allowed in part. Having however held that the tort of malicious prosecution was not proved by the Appellant against the Respondent, the judgment of the Trial

Court delivered on the 31st of March, 2017, is hereby affirmed.
There shall be no order as to cost.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Abdu Aboki, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

EMMANUEL AKOMAYE AGIM, J.C.A.(DISSENTING): I had a preview of the judgment delivered by my Learned brother Lord Justice Abdu Aboki PJCA. With the greatest respect to his Lordship, my view is that the suit brought by the respondent be struck out for the following reasons:
The appellant had averred in paragraphs 3 to 7 as follows-
“3. The Defendant caused the plaintiff to be arrested along with one of her son Pastor Tayo Ekundayo by the Nigerian Police Force at Egbe for employing some workers to fence the husband’s building on the above plot.
4. That after the arrest initiated by the Defendant, the Divisional Crime Officer (DCO) ordered that the incident be investigated. The Police after investigation out rightly released the Plaintiff and her son and informed the Defendant that the action of the Plaintiff and her son was not any way criminal, and that if the Defendant has any grudges against the Plaintiff, he should seek civil redress in Court.
5. That rather than taking the advice of the Divisional Crime Officer, the Defendant in

a desperate move to intimidate the Plaintiff initiated a criminal trial against the three workers employed by the Plaintiff to work at the site.
6. That the Plaintiff was present in Court during the arraignment of the three workers and she was the one who stood as surety for the workers when they were granted bail and subsequently discharged.
7. That the Court could not see any merit in the criminal trial of the workers employed by the Plaintiff. They were all discharged by the Area Court 1 Egbe for the case of the Defendant lacking in substance.”

She stated in paragraphs 3 and 4 that she and her son were arrested and detained and released unconditionally when the investigation by the Police found that there was no basis for the complaint by the respondent against her and her son. The cause of action available to her for this arrest and detention upon the baseless compliant is malicious process or unlawful arrest and detention and not malicious prosecution.

She stated in paragraphs 5 to 7 that the respondent initiated a criminal case in Area Court 1 Egbe against her workers. She appeared as a surety for their bail and was present during the

proceedings in that Court and that the Area Court discharged and acquitted her workers. So she was not the person charged to court and prosecuted in the case. So the right of action for malicious prosecution on account of the prosecution of her workers belong to her workers and not her.

The said workers did not bring any suit to seek redress for their prosecution in the Area Court. The appellant had no locus standi to bring the suit for the malicious prosecution of her workers. Therefore the trial Court lacked the jurisdiction to entertain and determine it. It is hereby struck out.

Appearances:

Adamson Adeboro For Appellant(s)

Respondent absent and unrepresented For Respondent(s)