MOHAMMED HAMZA MODDIBO v. MISS HADIZA ABDULMALIK
(2016)LCN/8362(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of March, 2016
CA/K/364/2013
RATIO
COURT: COURT INTERFERENCE; SITUATIONS WHERE AN APPELLATE COURT CAN INTERFERE WITH THE DISCRETION OF THE TRIAL JUDGE TO AWARD DAMAGES
Damages are awarded at the discretion of the trial judge. An appellate Court will not interfere with general damages awarded by the trial Court unless where:
a. It is satisfied that the trial Court acted upon some wrong principle in the award of such damages;
b. The amount awarded was so large or so small as to make it a completely erroneous assessment of the damages.
See Union Bank Plc v Chimaeze (2014) 9 NWLR Part 1411 page 166 at 185 Para F-H per M.D. Muhammad JSC; CBN v Okojie (2015) 14 NWLR Part 1479 Page 231 at 264 Para G-H per Rhodes-Vivour JSC. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
APPEAL: WHETHER THE APPELLATE COURT SHALL AFFIRM THE DECISION OF THE TRIAL COURT WHERE THE TRIAL COURT HAS CARRIED OUT ITS ASSIGNMENT SATISFACTORILY
It is a settled principle of law that where a trial Court, as in this case, has carried out its assignment satisfactorily, an Appeal Court shall be left with no option but to affirm such a decision. -Ali v State (2015) 10 NWLR Part 1466 Page 1 at 37 Para D-H per Ogunbiyi JSC; Sule Anyegwu v Onuche (2009) 3 NWLR Part 1129 Page 659 at 674 para F-G per l.T. Muhammad JSC. Where a Court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of the Court of appeal to substitute its own views for the views of the trial Court – Onovo v Mba (2014) 14 NWLR Part 1427 Page 397 at 424 Para F per Ogunbiyi JSC. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
Between
MOHAMMED HAMZA MODDIBO Appellant(s)
AND
MISS HADIZA ABDULMALIK Respondent(s)
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kaduna State delivered on the 31st day of January 2013 by Hon. Justice lsa Aliyu.
The facts of the case, by the pleadings and evidence of the Respondent, who was the Plaintiff before the lower Court, is that the Respondent operates a business centre. She offered it to the Appellant for purchase. Both of them agreed at the price of N750,000. The Appellant paid a deposit of N100,000 and subsequently paid the sum of N150,000. He followed this up with a cheque for the balance of N600,000. The cheque was however dishonored. In lieu, the Appellant paid N300,000 promising to pay the balance of N300,000. Rather than pay the balance, the Respondent resorted to threats, subsequently causing her to be arrested and detained until she made the undertaking to refund the part payment of N450,000. She instituted an action before the High Court of Kaduna State for the enforcement of her fundamental human rights. Granting the application, Zailani J declared the transaction to be a civil transaction and restrained the Appellant from further arrest of the Respondent. Undeterred,
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the Respondent continued with the criminal action before the Upper Sharia Court, culminating in the discharge of the Respondent. She in consequence, instituted the present action leading to this appeal, seeking for the following reliefs:
i. Special damages in the sum of N30,000.00 being legal fees for search and preparation of deed of assignment in respect of a plot at Malali, Kaduna the purchase of which was induced by the misrepresentation emanating from the Defendant, Defendant having promised to pay Plaintiff the sum of N300,000.00 which Plaintiff would have used in purchasing the plot defendant thereafter refused to pay the money so promised and plaintiff could not proceed with the purchase of the plot but lost the legal fees already paid.
ii. Special damages in the sum of N242,000.00 being legal fees for instituting and prosecuting fundamental rights proceedings before the High Court of Justice of Kaduna State in suit No. KDH/KAD/389M/2007 and for the defence to conclusion of case No. 98/2007 before the Upper Sharia Court Daura Road, Kaduna in which the Plaintiff was the accused person.
iii. Legal fees for the institution and prosecution of
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this suit in the sum of N150,000.00
iv. General and exemplary damages for causing unlawful arrest, detention and malicious prosecution in the sum of N2,000,000.00.
The trial Judge, lsa Aliyu J, while dismissing all other claims, granted the claim for malicious prosecution, awarding to the Respondent the sum of N720,000 as General Damages. lt is against this award that the Appellant has appealed, by a Notice of Appeal, dated 6/2/13 and filed on 7/2/13. While the Appellant filed a Brief of Argument, the Respondent filed none. The Appellant was granted leave on 11/11/15 for the hearing of the appeal based solely on the Appellant’s Brief of Argument.
In his Brief of Argument dated and filed on 3/10/13, settled by M.T. Mohammed Esq, two issues were formulated for the Court’s determination, namely:
1. Whether the learned trial Judge was right to hold the Appellant responsible for malicious prosecution (if any) haven regards (sic) to the evidence and materials placed before the Court.
2. Assuming the Appellant is responsible for the malicious prosecution, whether the sum awarded is not excessively too high in view of the role and antecedent
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of the Respondent.
Arguing the issues, the Appellant’s Counsel, citing the case of Mammon v Dambe (2002) FWLR Part 86 Page 428 and Balogun v Anubikanhan (1989) 3 NWLR Part 107 Page 18, submitted that the Respondent’s Statement of Claim did not allege all the necessary elements which together constitute the tort of malicious prosecution. There was nothing to show that the Respondent was discharged and acquitted, as she was only discharged on a motion. There is also nothing to show that she was prosecuted or that she was prosecuted with malice.
In addition, the Appellant, in his defence, denied ever having been served with the processes for enforcement of the Respondent’s fundamental human rights. He denied receipt of the decision of the High Court. The Appellant, Counsel submitted, had a reasonable and probable justification to lodge a complaint of cheating to the Police. In addition, no malice was pleaded or proved. He pointed out that the First Information Report at the Upper Sharia Court was for “cheating” and not for recovery of debt, as the learned judge held.
?Furthermore, to hold the Appellant responsible, the Respondent must show the active
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role played by the Appellant in her arraignment and prosecution. The claim for unlawful arrest and detention having failed, the claim for malicious prosecution also must fail, he submitted. In addition, the Respondent was not tried, as she raised an objection before she could be tried. The objection was sustained and she was discharged. He gave the definition of trial from Black’s Law Dictionary.
Conceding that a trial Court has power to award damages which the appellate Court is reluctant to interfere with, the sum awarded, he complained, is ridiculously high. He further complained that there was no attempt by the trial Judge to estimate the damages and take into consideration the antecedents of the Respondent while making the award. Award of exemplary damages must be based on identifiable and justifiable assessment and must not be arbitrary. The award of general damages was also done speculatively and on scanty facts, instead of minimal damages that the case deserved.
?From the Record of Appeal, the trial Judge, I note, disallowed the Respondent’s claim for exemplary damages for unlawful arrest and detention, holding that these should have been
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taken along with the proceedings for enforcement of her fundamental rights. He accused the Respondent of splitting the claim and making claims piecemeal. The claim for legal fees in that suit, he also held, should have been taken up in that case. He disallowed, as aforesaid, the claim for N30,000.00 legal fees in respect of the failed purchase transaction said to have been truncated by the Appellant’s misrepresentation, holding this claim to be too remote. He thereafter set out the essentials of the tort of malicious prosecution, holding the Appellant liable for the same.
The issues for determination, as distilled by the Appellant and slightly modified by me for succinctness, are:
1. Whether the trial Court was right to have found the Appellant liable to the Respondent for malicious prosecution; and
2. Whether the damages awarded were excessive.
The essentials of this Tort were given by the learned authors of Clerk and Lindsell on Torts 17th edition, at Para 15-05 as follows:
“Essentials of the tort of malicious prosecution. In action of malicious prosecution, the plaintiff must show first that he was prosecuted by the defendant, that is
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to say, that the law was set in motion against him on a criminal charge. Secondly, that the prosecution was determined in his favour; thirdly, that it was without reasonable and probable cause; fourthly, that it was malicious, The onus of proving every one of these is on the plaintiff. Evidence of malice of whatever degree cannot be invoked to dispense with or diminish the need to establish separately each of the first three elements of tort.”
Restating these principles, the Supreme Court, in the case of Balogun v Amubikanhan (1989) 3 NWLR Part 107 Page 18 at 26 Para A-B per Belgore JSC (as he then was) held as follows:
“In an action for malicious prosecution, the plaintiff must plead and show by evidence that he was prosecuted by the defendant. In this regard, it must be shown clearly that the defendant set in motion against the plaintiff, the law leading to a criminal charge. Secondly, as a result of the prosecution aforementioned the plaintiff was discharged and acquitted, in short that the prosecution was determined in the plaintiff’s favour. Thirdly, the plaintiff must plead and satisfy the Court by evidence that the prosecution by the defendant
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was completely without reasonable and probable cause. Finally that the prosecution was as a result of malice by the defendant against the plaintiff. All the four elements 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. To prosecute, in essence, is to set in motion the law whereby on 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 in 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 unsuccessfully.”
In the instant case, the account of the Appellant is that subsequent to his agreement to purchase the Respondent’s Business Centre at the agreed sum of N750,000, he paid the sum of N150,000 to the Appellant and issued a post dated cheque for the balance of N600,000. Before the maturity of the cheque, he paid the sum of N300,000 cash to the Respondent. He however had a distress call
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from his family and had to travel to Adamawa, promising to pay the Respondent the sum of N300,000 on his return. The Respondent, however called him that she was no longer selling the business centre yet refused to pay the sum of N450,000. lt was as a result of the non refund of the said sum that he reported the matter to the Police. He denied that she was detained. He also denied pursuing any criminal suit after the order made by Hon. Justice Zailani.
The trial Judge, in holding the Appellant liable, held at Pages 135-138 of the Record of Appeal, as follows:
“lt is to be noted that, it is not necessary to prove that it was the defendant that actually conducted the prosecution. It is sufficient where the defendant laid a complaint before the police. ln this case, the defendant stated at Paragraph 3a, b, c. that he reported the matter to the police when the plaintiff failed to refund his N450.000. Also the defendant deposed at Paragraph 8 of his sworn deposition that he reported the matter to the police when his N450,000 was not refunded by the plaintiff. The police based on the report of the defendant instituted the case before the Upper Shariah Court
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for the purpose of recovery of the said amount. These facts are clear from the evidence of the defendant in chief and under cross-examination. The exhibits tendered before this Court also show that it was the defendant that reported the case to the police to recover his N450,000.
The prosecution instituted by the police ended in a discharge in favour of the plaintiff. The defendant stated under cross-examination that the plaintiff was discharged. The record of proceedings also shows that the proceeding ended in favor of the plaintiff. See Exhibits 4A and 4B.
On ingredients 4 and 5, the facts of this case are clear. The transaction that brought about this case was when the defendant agreed to buy the business centre of the plaintiff. The defendant made a deposit. The agreement to sale could not go on, as a result the defendant demanded for the repund (sic) of his deposit. When the plaintiff could not refund the deposit he reported the matter to Kawo Police Station for the police to recover the deposit for him. When the police took up the matter, the plaintiff went to the High Court to enforce her fundamental rights and to obtain an interim order,
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the reliefs sought were granted. The police despite that took the plaintiff to Upper Shariah Court, Dauro Road and prosecuted the plaintiff. The prosecution ended in favor of the plaintiff. The transaction between the plaintiff and the defendant was purely civil transaction and was so declared by the High Court. See Exhibit 3. lt had nothing to do with the police. The police are not debt collectors, see MACLAREN Vs JENDINGS. The defendant clearly stated that he reported the matter to the police to recover his deposit. That really shows that the prosecution was without reasonable cause.
Further, the High Court as is clearly seen in the record of proceedings Exhibit 3 declared the transaction between the plaintiff and the defendant as civil transaction in which the police had no business but yet the police continued the prosecution and of course with instigation and participation of the defendant who had employed a counsel watching the brief for him in prosecution of the plaintiff inspite of the Court Order depicts malice on the part of police and the defendant. The prosecution of the plaintiff in spite of the Court order and in disregard of the Court order
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was without reasonable and probable cause. Police are not debt collectors. There are several authorities to that effect. See MACLEREN VS JENNINGS.
Where a person lodged a complaint to the police ON a civil transaction with aim of recovering debt from another person using the police as an instrument for that; he should be held responsible for the acts of the police when they arrest, detain and prosecute that person in order to recover his debt. The police are not empowered to act as debt collectors by the Police Act. He who uses the police for debt recovery should be liable for their illegal act. Ignorance of the law on the part of such complainant will not absolve them of liability. For ignorance of law is no excuse…”
Appellant’s Counsel, however disagrees, stating that he did not set the law in motion against the Respondent.
The difference between merely making a report and setting the law in motion was given in the case of Balogun v Amubikanhon Supra, per Belgore JSC (as he then was) at Page 27 Para A-F, as follows:
“In Nigerian situation, once a report or complaint is made to the police and strenuously pursued as in this case, and
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through the same mischievous lying, the police not only make an arrest of the incriminated person, but proffer a charge against him and take him to Court for prosecution, the complainant has set in motion the law for a person clothed with authority to arrest and charge the incriminated person. The complainant, having made a false statement, maliciously, and thus causes a judicial act like the issue of arrest warrant 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. Farley v. Danies (1855) 4 EXB 493, 499; Quartz Hill Consolidated Gold Mining Co. v. Eyre (1883) 11Q.B.D. 674,684.?
In Ebenighe v Achi (2011) 2 NWLR part 1230 page 65 at 83 para A, cited by the Appellant’s counsel, it was observed by Yahaya JCA, who, after citing the essentials of the tort of malicious prosecution, held:
“In the instant appeal, all that the Respondent did was to make a report to the Police Area Commander who caused an investigation to be carried out before charging the Appellant to Court. The fact that he acted as a pointer, is no evidence of further acts of
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instigation.?
In this present case, it is clear that the Appellant went beyond merely making a report to the Police. He actively prosecuted the Respondent, I hold. This, the trial Judge held, was evident in his securing Counsel at the criminal proceedings to hold a “watching brief”. Thus, though technically he was not the prosecutor, by making a criminal allegation in what was a purely civil transaction and yet pursuing the action, in spite of the restraining order and the order of the Court declaring the same to be a civil transaction, was, I hold, clear evidence of “setting the law in motion” against the Respondent. As also held by the Judge, the acts of the Appellant were evidence of malice.
It is no defence to the Appellant that the arraignment at the Upper Sharia Court was before the order of the High Court. The fact is that, in spite of the order of the High Court, the proceedings against the Respondent continued before the Upper Sharia Court, until she was discharged following an application filed by her.
?The Appellant again contends that the acts do not constitute malicious prosecution, as the Respondent was not discharged and
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acquitted but merely discharged. Counsel must be taking umbrage under the essentials of the 2nd requirement given in Balogun v Amubikanhan above, where His Lordship stated-
“Secondly, as a result of the prosecution aforementioned the plaintiff was discharged and acquitted.”
However this statement was qualified by the words following: “in short that the prosecution was determined in the plaintiff’s favour.”
This interpretation receives support from the definition of the tort in Clerk and Lindsell above, where it was stated in Para 15-05 that “In an action of malicious prosecution the plaintiff must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge. Secondly, that the prosecution was determined in his favour.”
The requirement was thus satisfied in this case, as the prosecution was determined in favour of the Respondent, the Respondent having been discharged by the Sharia Court.
?It is unnecessary, I hold, to determine whether the order of the High Court was brought to the attention of the Appellant or not, for as I have held above, the fact that the
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Appellant, in respect of a civil transaction, sets the law in motion against the Respondent and proceeds to monitor the prosecution by a lawyer retained to hold his brief, to ensure prosecution, is clear evidence of ill motive. The dismissal by the trial Judge of the claim for exemplary damages for unlawful arrest and detention did not, I hold, preclude him from finding the Appellant liable for malicious prosecution, having found that the facts before him disclosed that tort.
I accordingly hold that the trial Court was right to have found the Appellant liable to the Respondent for malicious prosecution.
The 2nd issue for determination is:
Whether the damages awarded were excessive.
The reasoning behind the classification of this tort as malicious prosecution is given in Chapter 75 Paragraph 75-07 of Clerk and Lindsel Supra, as follows:
“KINDS OF DAMAGE CAUSED
Wrongfully setting the law in motion. It is obviously a grievance that an individual should be harassed by legal proceedings improperly instituted against him. If there is no Nature of damage thereby cause. An abuse of the right to put the law into motion may of necessity be
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injurious, as involving damage to character, or it may in any particular case bring about damage to person or property. There are, according to Holt C.J., three sorts of damage to a plaintiff, any one of which is sufficient to support an action of malicious prosecution. “First, damage to his fame if the matter whereof he be accused be scandalous, Secondly, to his person, whereby he is imprisoned. Thirdly, to his property, whereby he is put to charges and expenses. To these may be added the damage which someone suffers when his house is entered and his property seized. Whenever a plaintiff can show that he has suffered under any of these heads of damage by reason of the defendant having wrongfully put the law in motion against him, whether civilly or criminally, he has a remedy, it is true that it is only in exceptional circumstances that a person against whom on unreasonable and malicious action has been brought can obtain reparation for the wrong by means of a separate action; this, however, is not because of any difference in principle between the abuse of civil or criminal process, but because generally in such a case no damage can be proved. There is no
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damage to reputation because…”
Relating these principles to the instant case, the trial Judge held, at Page 137:
“The last ingredient is that the plaintiff suffered damages to her reputation, person or properties. There is evidence that as a result of the prosecution, the plaintiffs counsel charged her the sum of N750,000 which she is yet to pay. This is a damaged suffered by the plaintiff. As to damages to reputation, there is no evidence to that effect. As to damages to person, the plaintiff was prosecuted even though no evidence to show that the plaintiff was detained by the police but the plaintiff as an accused would have to be in Court during the prosecution. That was damage to her person. It is my view therefore, that all the essential ingredients of the tort of malicious prosecution have been proved in the balance of probability. The defendant is therefore liable as in the claim of the plaintiff in Item IV of Paragraph 13, the claim is for general and exemplary damages for causing unlawful arrest detention and malicious prosecution is in the sum of N2,000,000. The claim for unlawful arrest and detention has already been decided (Not
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granted). We are left with claim for malicious prosecution. I believe the plaintiff is entitled to general damages against the defendant for malicious prosecution. I assessed the general damages to which the plaintiff is entitled to Seven Hundred and Twenty thousand Naira only (N720,000.00).
There is not going to be any award as regards to the claim for legal fees in respect of defence of the case No. 98/2007 before the Upper Shariah Court Daura Road, as doing so will amount to doubt (sic) compensation. This claim has been taken care of in the damages awarded in favor of the plaintiff against the defendant…”
The Respondent, I agree with the trial Judge, is entitled to damages for loss of her reputation and for the opprobrium that attendance at criminal proceedings attracts.
Damages are awarded at the discretion of the trial judge. An appellate Court will not interfere with general damages awarded by the trial Court unless where:
a. It is satisfied that the trial Court acted upon some wrong principle in the award of such damages;
b. The amount awarded was so large or so small as to make it a completely erroneous assessment of the
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damages.
See Union Bank Plc v Chimaeze (2014) 9 NWLR Part 1411 page 166 at 185 Para F-H per M.D. Muhammad JSC; CBN v Okojie (2015) 14 NWLR Part 1479 Page 231 at 264 Para G-H per Rhodes-Vivour JSC.
None of these incidences have been found to exist in this case. There is thus no necessity to interfere with the Court’s award of damages.
I thus resolve the 2nd issue for determination in favour of the Respondent.
It is a settled principle of law that where a trial Court, as in this case, has carried out its assignment satisfactorily, an Appeal Court shall be left with no option but to affirm such a decision. -Ali v State (2015) 10 NWLR Part 1466 Page 1 at 37 Para D-H per Ogunbiyi JSC; Sule Anyegwu v Onuche (2009) 3 NWLR Part 1129 Page 659 at 674 para F-G per l.T. Muhammad JSC. Where a Court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of the Court of appeal to substitute its own views for the views of the trial Court – Onovo v Mba (2014) 14 NWLR Part 1427 Page 397 at 424 Para F per Ogunbiyi JSC.
?The lower Court, I hold, has unquestionably evaluated the evidence in this case, with a proper
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appraisal of the facts. This Court is left with no option but to affirm its judgment. This appeal, I hold, is devoid of merit and is accordingly dismissed, with no order as to costs.
UWANI MUSA ABBA AJI, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother Oludotun A, Adefope-okojie, just delivered. I agree with the reasoning and conclusions of my learned brother that the appeal is devoid of any merit. The appeal is also dismissed by me for the reasons therein stated. I abide by the order made including orders as to costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, OLUDOTUN A. ADEFOPE-OKOJIE JCA gave me the opportunity of reading before now the judgment just delivered. I agree with the reasoning of my learned brother and the conclusion that the appeal is lacking in merit and I dismiss it accordingly.
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Appearances
M.T. MohammedFor Appellant
AND
UnrepresentedFor Respondent
