ABIODUN OJO v. BAMIDELE LASISI & ANOR.
In The Court of Appeal of Nigeria
On Monday, the 9th day of December, 2002
MURITALA AREMU OKUNOLA Justice of The Court of Appeal of Nigeria
WALTER SAMUEL NKANU ONNOGHEN Justice of The Court of Appeal of Nigeria
JAAFARU MIKAILU Justice of The Court of Appeal of Nigeria
ABIODUN OJO Appellant(s)
- BAMIDELE LASISI
2. EZEKIEL OJO Respondent(s)
MIKA’ILU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Justice D. F. Babalola, Judge of the High Court of Justice of Ekiti State, holden at Ado-Ekiti, dated 11th July, 2001 in suit No. HAD/60/98. Biodun Ojo v. Bamidele & Anor.
Before the trial court; the appellant was sued by the respondents, where their claims as per paragraph 37 of their statement of claim are as follows:-
“37 whereof the plaintiffs jointly claim the sum of N1m. (one million Naira) as general damages from the defendant for defamation of character, unlawful arrest, false imprisonment and malicious prosecution between 21st June, 1998 and 3rd September, 1998 as shown below.
Particulars of claim
(a) Defamation of character N200,000.00 (two hundred thousand naira)
(b) Unlawful arrest N200,000.00 (two hundred thousand naira)
(c) False imprisonment/detention N200,000.00 (two hundred thousand naira)
(d) Malicious prosecution N400,000.00 (four hundred thousand naira).”
Pleadings were filed and exchanged in the court below. At the trial, each of the respondents testified for the case of the respondents. Three other witnesses also testified for them. The appellant also testified and called one other witness who also testified for the defence. Then the trial court having gone over the entire evidence and the submissions of both learned counsel for the appellant and the learned counsel for the respondents passed decision to the effect that the claims for defamation of character and false imprisonment failed. He however, held that the claims of unlawful imprisonment of 9th – 11th July, 1998 and malicious prosecution had been established. Consequently, he awarded damages in the sum of 50,000.00 (Fifty thousand naira) for unlawful imprisonment N100,000.00 (One hundred thousand naira) for malicious prosecution and costs in the sum of N300,000.00 (three hundred thousand naira.) Dissatisfied with the said decision, the appellant filed this appeal before this court. As per his amended notice of appeal, he filed four grounds of appeal as follows:-
Grounds of Appeal
(1) The lower court erred in holding that:-
“I therefore hold the view that it is the act of the defendant that is responsible for the unlawful detention of the plaintiffs in the police custody from 9th July, to 11th July, 1998” And this led to a miscarriage of Justice.
Particulars of Error
(a) What the defendant did was to complain against the manner of the investigation of the police into his complaint and urging commissioner of police to order for further investigation.
(b) The police could search only one room out of all the rooms in the house of the defendants could not
(sic) he served searched as the defendants said the others were locked nor did they produce the keys to them.
(c) There was need for further investigation by way of searching the remaining others.
(d) And this is what the defendant asked for;
(e) Defendant did not ask for arrest and detention of plaintiffs at all.
(f) The arrest and detention and transfer of the investigation were at the instance of the police.
(g) Asking for fresh or re-investigation is no sign of malice but to ensure that justice is done.
2. The lower court erred in law in holding that:-
“On the whole from the evidence before me, I find the defendant liable for malicious prosecution of case MAD/169C/98 Commissioner of Police v. Bamidele Lasisi and Ezekiel Ojo” And this led to a miscarriage of justice:
Particulars of error
(a) Contrary to what the lower court held defendant only made a report that his house was burgled and
mention the plaintiffs as suspect. He was not “actively instrumental in setting the law in motion against the plaintiff”
(b) Quite contrary to the views of the lower court, the defendant had reasonable and probable cause to report the plaintiffs to the police because his house was burgled, plaintiffs were his next door neighbours, indeed plaintiffs’ house is the only one in the vicinity and there is nothing (sic) reasonable in suspecting the plaintiffs.
(c) Assuming but not conceding that there was malice at all, the only malice that could exist is one against Madam Modupe Adeleye and not the plaintiffs.
(d) The lower court was wrong in holding that the defendant “was actuated by improper and indirect motives because he knew he was making false allegation and his desire was for persecution and not prosecution. For the right and proper end of justice. What he had was not bonafide but malus animus”
3. The decision of the lower court is against the evidence.
The reliefs now being sought are for this court to allow the appeal, set-aside the judgment of the lower court and dismiss the claim of the plaintiff before the lower court.
The learned counsel for the appellant, A. O. Akanle, SAN, has in this appeal formulated four issues for determination as follows:-
(a) Whether or not the request of the appellant for a re-investigation of the case of his burgled house is
responsible for the detention of the respondents from 9th to 11th July, 1998?.
(b) whether or not from the evidence before the trial court the appellant could be said to have maliciously prosecuted the respondents?.
(c) Whether or not the decision of the lower court is against the weight of the evidence before the court?.
(d) Whether or not the damages and costs awarded were excessive?.
The learned counsel for the respondents has adopted the four issues formulated above. Considering the grounds of appeal, I think the above issues are well formulated.
On the first issue, ‘a’ the learned counsel for the appellant has drawn the attention of this court to the fact that when the house of the appellant was burgled he reported the matter to the police and that he suspected the respondents. The police only searched one room of the respondents as the respondents said they were not with the keys to the other rooms. The learned appellant’s counsel avers that this was not denied by the respondents but rather admitted in law because paragraph 12 of the statement of defence where it was averred was not denied. In addition, the appellant gave evidence in support of the same. The learned counsel for the appellant opined that that was why the appellant requested for a re-investigation and he did not ask for detention of the respondents. He has added that the respondents did not tender the protest letter which the appellant sent to police commissioner because they knew it was not in their favour. He urges the court to hold this against the respondents by virtue of section 149(d) of the Evidence Act. The learned counsel further has averred that neither in their pleadings nor in their evidence did the respondents allege that it was the appellant who asked for their detention. He refers to the evidence of PW1, police officer Olowo Anthony who testified to the fact that the appellant could not direct the police to detain anybody and that he detained the respondents on the authority of his superior officer. That also PW3 sergeant Omage said the appellant could write petition to the commissioner of police as his matter was not being handled well.
The learned counsel for the appellant has also drawn the attention of this court to the fact that the respondents were with a lady when the police went to their house and the lady ran away. He urges the court to hold, contrary to what the lower court held, that it was the police on their own that detained the respondents from 9th to 11th July, 1998 and resolve issue ‘a’ in favour of the appellant.
In this regard, the learned counsel for the respondents has submitted that this issue raises the question as to how torts of unlawful detention and false imprisonment are proved. He avers that in an action for false imprisonment anyone who helps to continue a wrongful detention of the plaintiff will be liable though he is not the original wrong doer. That the onus is on the defendant to show that his act was justified. According to the learned counsel for the respondents, the appellant has failed woefully to show that the re-arrest and detention of respondents by his ‘frivolous petition’ were justified, relying upon Okechukwu v. Anigbogu reported in vol. 4 (Pt. 11) 262 University of Ife Law Reports. He submits that the findings of fact of the trial court on this issue accords with the evidence led in the case. That it is not a duty of an appellate court to disturb the finding of court which is in line with evidence. The learned counsel relies upon Salami v. Gbodoolu (1997) 4 NWLR (Pt. 499) 277; 291. Paragraph F, 293 paragraphs C-D; Tsokwa Motors v. U. B. N. (1996) 9 NWLR (Pt. 471) 129-139 paragraphs A-B. The learned counsel further avers that the lower court found as a fact that it was the appellant’s petition to the police commissioner which caused the re-arrest and detention of the respondents which accorded with the evidence led in the case. That without the said petition the respondents would not have been detained from 9th to 11th July, 1998. On search in the respondents’ house, the learned counsel submits that the argument that the search was done in one room is untenable as, from the evidence, the respondents were only security guards in Modupe’s house and should not ordinarily be expected to be in possession of, or have, the keys to all the rooms in the house as the house was not theirs and that the appellant knew this fact. The learned counsel for the respondents on this issue has concluded by submitting that it was the appellant who was actively instrumental in setting the law in motion against the respondents, citing the case of Jeremiah Totor v. Philip Aweh (2000) 2 NWLR (Pt. 644) 309, 319 with this he urges the court to resolve the issue (a) against the appellant and allow the decision of the lower court to stand.
The reason for the decision of the court below on this issue is clear on pages 60-61 of the available copy of the record of proceedings of the trial court where the trial court had this to say:-
“A tort of false imprisonment may be committed by continuing a lawful imprisonment longer than is justified.”
Then the learned Judge relied upon the evidence of CPL Olowo Anthony, 1st PW1 that when the case was transferred he had completed investigation and found nothing to link the plaintiffs (respondents) with offences allegedly committed in the defendant’s (appellant) house. The learned Judge opined that in an action for false imprisonment, just as in all other cases of trespass to person or property, liability is created in general even by honest and inevitable mistake. Then his lordship held that respondents had shown by credible evidence that it was the defendant (appellant) who was actively instrumental in setting the law in motion against them. He then stated as follows:-
“I therefore hold the view that it is the act of the defendant that is responsible for the unlawful detention of the plaintiff in the police station custody from 9th to 11th July, 1998.”
Earlier, the trial Judge indicated that the onus was on the appellant to establish that his act was justified which he failed.
Thus, by the above it is clear that the trial Judge based his decision on the evidence of 1st PW that he had completed investigation and found nothing to link the respondents with the offences charged as well as the act of the appellant of writing petition to the police commissioner when he felt that the investigation was not being properly handled. The trial Judge earlier made clear that he held, on evidence of 1st PW, 2nd PW, 3rd PW, that it was the defendant’s petition to the commissioner of police that led to the arrest of the respondent on the 9th July, and their subsequent detention from 9th July, 1998 to 11th July, 1998. While the trial Judge in his judgment held it was for the appellant to show that his act was justified, his lordship rushed and ignored the facts in evidence of the appellant which tends to show the said justification. The trial court only diverted its mind to what resulted after the petition whereas to find whether there is justification to any act the facts leading to it should be considered. In our case, it is clear not only in evidence that the house of the appellant was burgled. That is clearly not only in the evidence of the appellant in his defence but also in the evidence of respondents and their witnesses. As a result, he reported the matter to the police and suspected the respondents. The respondents were at the house of Modupe whose house and that of appellant were the only houses within the vicinity. The two houses were sharing a common wall fence. All these are undisputed facts which are clearly shown in evidence and in support of the facts averred in pleadings. Moreso, when the police went to search the house of the respondents they searched only one room as the respondents said they did not have keys to the other rooms. When the police arrived at the house of the respondents there was a lady with them and she ran away.
Nothing in the evidence to show what effort was made to get the keys to the other rooms and nothing to show that the investigation extended to identifying the lady who ran away. All these facts were pleaded by the appellant and they were in his uncontradicted evidence which the trial court should have acted upon. In the case of Balogun v. Amubikahan (1989) 3 NWLR (Pt.107) 18; (1989) 4 SCNJ 249 it is clear that mere giving information to the police is not enough, the defendant must be shown to be actively instrumental in getting the law in motion. In our case, the appellant was within his right to report to the police and suspect the respondents due to the circumstances indicated above. He was also within his right to complain when he felt that investigation of his complain was not being properly conducted. By evidence the investigation was not properly conducted as only one room was searched and there was no effort of apprehending the lady who ran away. I think these activities have clearly justified the actions of the appellant in reporting to the police and as well as writing petition to the commissioner of police. He was not in a position to direct or instruct the police to detain the respondent as no evidence was given to show that he influenced the police to arrest and detain the respondents from 9th July, 1998 to 11th July, 1998.
On the second issue under ‘b’ the learned counsel for the appellant has correctly submitted that there are four ingredients of malicious prosecution as follows:-
(i) that the defendant put the machinery of prosecution in motion.
(ii) that the result of the criminal action is in favour of the accused.
(iii) that the defendant has no reasonable cause to prosecute the accused and,
(iv) that the prosecution is as a result of malice.
The learned counsel has further submitted that the four ingredients must ‘be established before the defendant can be liable. The learned counsel for the respondents has also agreed with the above submission. The above ingredients are the same as those enlisted in the case of Balogun v. Amubikanhun (1989) 3 NWLR (Pt.107) 18; (1989) 4 SCNJ 249. I therefore agree that they are the necessary ingredients of tort of malicious prosecution.
It is the submission of the learned counsel for the appellant that out of the above ingredients, only the 2nd ingredient has been established.
On the 1st ingredient as to whether the respondents were prosecuted by the appellant, the learned counsel for the appellant has averred that the house of the appellant was burgled and he suspected the respondents. They lived in a house nearby. He reported the matter to the police. The learned counsel has opined that since he only suspected the respondents, definitely he put no machinery in motion to prosecute the respondents, relying upon the following:-
(i) Owomero v. Flour Mills (Nig.) Ltd. (1995) 9 NWLR (Pt. 421) 622, 630, paras C-G
(ii) Totor v. Aweh (2000) 2 NWLR (Pt. 644) 309; 321 paras A-B
On the other side, the learned counsel for the respondents has submitted that there is abundant evidence on record that the appellant set the machinery in motion in prosecuting the respondents. That he did not only stop at reporting the matter to the police, but also saw to it that the respondents were charged to court. He has added that the respondents’ evidence and the evidence of their witnesses has established that the appellant was actively instrumental in setting the law in motion against the respondents. The learned counsel relies upon the following case:(i) Balogun v. Amubikanhun (supra) (ii) Iyakekhue v. Omorege (1991) 3 NWLR (Pt. 177) 94; 101 paras. D-E
(iii) Mandilas and Karaberis Ltd. v. Apena (1969) 1 NMLR 199.
The reason for the decision of the court below is clear on page 62 of the printed record and is as follows:
“Again, on the evidence of the two plaintiffs and the 3rd PW which evidence I strongly believe, the defendant did not only make complaint or report to the police that his house was burgled by the two plaintiffs but he strenuously pursued it through his mischievous petition. He was actively instrumental in setting the law in motion against the plaintiffs.”
It is regrettable for the trial Judge to come to conclusion that the appellant ‘strenuously pursued’ it through his ‘mischievous petition.’ From the evidence relied upon by the court below, there is nothing to show strenuous pursuit nor is there anything to show the petition as mischievous. Reporting to police and complaining to the commissioner of police cannot be said to be strenuous. The contents of the petition were not known to the court below as it was not in evidence. Though it was in evidence that the appellant refused to settle the issue but there is no activity towards settlement shown in evidence. It is only mere statement that he refused settlement without more. It has been held in Balogun v. Amubikanhun (supra) that to prosecute, in essence, is to set in motion the law whereby an application is made to some person with judicial authority with regard to the matter in question and that 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. In that case, Belgore, JSC, made it clear that the defendant was not only the owner of the pipe but he also dictated the tune. In our case, though the appellant could be said to be the owner of the pipe he could not dictate the tune as he had, even to petition when he felt that the investigation of his complaint was not properly being done. There is nothing in the evidence to warrant holding that the appellant, in this case was actively instrumental in setting the law in motion against the respondents.
The next is the issue of the absence of reasonable cause. It is the averment of learned counsel for the appellant that the house of the appellant was burgled which was within his right to suspect any person and report such a person to the police. That the suspicion against the respondents’ was more reasonable as the respondents’ house was adjacent to that of the appellant. PW2, Corporal Olowo testified that both houses were the only houses in the area. He has added that due to the proximity of the two houses, if an outsider perpetrated that act of burglary, the respondents should have seen or heard the breaking into the house of the appellant. He has drawn the attention of this court to the testimony of 2nd PW that the thieves used a ladder to enter the house and use a digger to remove the window cover and burglary-proof both of which could not be done without noise. He has concluded that from the foregoing it can not be said that the appellant had no reasonable cause, relying upon:
(i) Iyalekhue v. Omorege (supra)
(ii) Kwakyi v. Bandoh 4 WACA 197, 200-201
(iii) CC.B. v. Odogwu (1990) 3 NWLR (Pt. 140) 646; 654-655.
However, the learned counsel for the respondents has counter-argued that the appellant had no reasonable cause to even suspect the respondents let alone to prosecute them. That both respondents said in their evidence that when the appellant carne to Madam Modupe’s compound and reported the burglary incident to them, they followed him to the scene to sympathise with him. That it is from the evidence that only when the cashew tree in Modupe’s compound was climbed that one could see the appellant’s house. Noise might only make the respondents think that the owner of the house was doing one thing or the other, except where there was noise of distress.
In this regard, it is clear on the printed record of proceedings of the court below only referred to the definition of reasonable and probable cause in the case of Hicks v. Faulkner (1881) 8 QBD 169, 171 and concluded as follows:-
“From the totality of the evidence before me, I hold that no reasonable man, having knowledge of the facts which the defendant knew at the time he instituted the prosecution, would have believed that the plaintiffs were probably guilty of the crime imputed and I hold that the defendant did not himself honestly believe that the plaintiffs were guilty of those charges.”
I think, if the totality of evidence in this case is considered, it negates the above decision of the trial court. There is no doubt the house of the appellant was burgled. It is equally undoubted that the house of Modupe and that of appellant were the only houses within that area and the two houses shared a wall fence. Only one room in the house of Modupe was searched as the respondents claimed they did not have the keys to the other rooms. A lady with them ran away when the police came. He had therefore a good cause to report to the police and he had a good cause to petition the commissioner of police. Any reasonable man put in his position would suspect them, report the matter to the police and petition the commissioner of police in the said circumstances.
On question of malice, the learned counsel for the appellant has averred that the lower court found that there was some misunderstanding between appellant and one Mrs. Adeleye in whose house the respondents were living and it held that this was evidence of malice. However, the appellant did not suspect her.
The learned counsel has added that the appellant only made report to police which can not amount to malice, relying upon several authorities. Then he has maintained that it was the police and not the appellant that decided to prosecute the respondents. The police who actually took the matter to court stated that it was the commissioner of police that ordered him to charge the respondents to court, and, in law the appellant cannot be held responsible for police action. He has cited the following cases:
Totor v. Aweh (supra), Owomero v. Flour Mills (1995) 9 NWLR (Pt. 421) 622; 630, C-G.
He has concluded by submitting that the lower court was wrong to hold that the appellant maliciously prosecuted the respondents.
As for the learned counsel for the respondents he has submitted that there is abundant evidence of malice, on record, by the appellant against respondents. What he has considered as malice can be summarised as follows:
(1) The appellant said:
The respondents used to climb the cashew tree in Madam Modupe Adeleye house and peep into his compound and houses, and he took a photograph of the 2nd respondent standing on the top of the container peeping into his house.
(2) The appellant said the relationship between him and Madam Modupe Adeleye before the incident was cordial and that the respondents did not sympathise with him but were laughing when he reported the incident to them.
(3) The appellant petitioned the police which led to the detention of the respondents for the second time.
(4) At one time he said he suspected the respondents and at another he said he did not suspect or mention the respondents.
(5) The police officer who investigated the case originally maintained that it was the appellant who suspected the respondents, mentioned them, identified them and led him to arrest the respondents.
(6) The police duly informed the defendant/applicant that there was nothing against the respondents, tried to reconcile them but the appellant disagreed.
He has concluded by submitting that it is not the law that a defendant must have specifically asked the police to detain and charge an accused to court before he can be liable for false imprisonment and malicious prosecution. The law is that, if a defendant by his actions and utterances led the police to detain and charge an otherwise innocent person to court (i.e the defendant) he is liable for false imprisonment and malicious prosecution. I think there would be no need to comment on this latter submission as it has been covered by the issue dealt with earlier. However, what has been enlisted by the learned counsel cannot in anyway establish malice against the respondents by the appellant. Most of them can only assist in strengthening the suspicion of the appellant against the respondents.
The learned trial Judge on pages 63-64 of the printed copy went over them and reached a decision that the malice was the bad relationship between Madam Modupe Adeleye and the respondents; that the appellant left his house from 21-6-98, according to the trial Judge, after the defendant wrote his petition. The trial Judge had failed no doubt to appreciate that these were activities after his reporting to the police and writing of petition even though the trial Judge in his judgment has indicated the activities were after the report and the petition. They cannot establish malice before the date of incident. The trial Judge also held that the appellant was actuated by improper and indirect motives because he (appellant) knew he was making false allegation and his desire was for persecution and not prosecution. I think there is no evidence to support this in the entire proceedings.
The next issue (issue. c) is on decision against the weight of evidence. On this issue, the learned counsel has only repeated what have been dealt with on other issues. However, submission of the learned counsel for the appellant in short is that all in all none of the findings of the lower court is supported by evidence while the learned counsel for the respondents has maintained that decision of the trial court is not in any way against the weight of evidence. From the issues decided above, it is clear that the whole decision of the court below is against the weight of evidence and it has occasioned miscarriage of justice. There is no need to dwell on issue of damages and costs awarded. All the grounds of appeal (1) to (3) succeed.
The decision of the lower court is hereby set-aside and the claims of the respondents before the lower court is dismissed. Appeal allowed costs – N5,000.00
OKUNOLA, J.C.A.: I was privileged to have read the draft of the leading judgment just delivered by my learned brother, Mika’ilu, JCA. For the reasons given in the said judgment, I am in full agreement with his conclusion that the appeal is meritorious. I will therefore also allow the appeal.
I abide by all the consequential orders made in the leading judgment including the order made as to costs.
ONNOGHEN, J.C.A.: I have had the opportunity of reading in draft the lead judgment of my learned brother, Mika’ilu, JCA, just delivered.
I agree with his reasoning and conclusion that the appeal has merit and should be allowed.
The facts of the case have been fully stated in the said lead judgment of my learned brother so I do not intend to repeat them here except to emphasize the point being made. The primary issue in this appeal is whether the appellant can legally be responsible for the detention of the respondents from 9th July, to 11th July, 1998 following the request of the appellant in his petition to the Commissioner of Police for re-investigation of his complaint of burglary and stealing made to the police. This is the pivot of the case of the respondents.
At page 56 of the record being part of the judgment of the learned trial Judge, is to be found the following findings amongst others:
“11. After the two plaintiffs had been released on bail, the defendant wrote a petition to the Commissioner of Police complaining about the way and manner the police handled his case.
12. Following the defendant’s petition, the plaintiffs were re-arrested on 9-7-98 and the case was transferred from the Divisional Police Station, Ado-Ekiti to State Headquarters.
13. On 10-7-98 the two plaintiffs’ rooms were searched the second time. Again, nothing incriminating was found in any of their rooms.
14. The two plaintiffs were again detained from 9-7-98 to 11-7-98.” (Emphasis supplied by me).
These findings are not disputed by the appellant and they are supported by the evidence before the lower court. However, at page 60 of the record, the learned trial Judge held as follows:
“On the evidence of the 1st PW, 2nd PW and 3rd PW. I hold the view that it is the defendant’s petition to the Commissioner of Police that led to the re-arrest of the plaintiff on the 9th July, 1998 to 11th July, 1998. In an action for false imprisonment, anyone who helps to continue a wrongful detention of the plaintiff will be liable though he is not the original wrong or (sic). The onus is on the defendant to establish that his act was justified. “I hold that this defendant has failed to do…”
I am of the firm view that though the learned trial Judge may be right in restating the general principles of law in the above quoted passage from the judgment, it is erroneous for him to hold that the principles so stated apply to the relevant facts of this case as found by him, so as to make the appellant liable in false imprisonment of the respondents from 9-7-98 to 11-7-98. In the first place, both parties including the witnesses agree that the complaint of the appellant to the commissioner of police in the petition in question is against the way the police was handling his case. No one said that the appellant mentioned the respondents or accused them of wrong doing in the said petition neither did the trial Judge so find. The petition itself was not tendered in evidence before the lower court.
It is my considered view that the best evidence as to whether it was the petition of the appellant to the Commissioner of Police that is responsible for the arrest and detention of the respondents during the period in question and not due to the initiative of the police in order to carry out a thorough investigation of the matter, is the contents of that petition particularly as the trial court had found that the said petition is against the way and manner the Police had handled the case.
It is my view that the decision to re-arrest and detain the respondents for the period in question is clearly that of the police. Since the appellant’s complaint in the petition is against the way the police handled the case, the police could have just reviewed the procedure adopted and the investigation as a whole without necessarily re-arresting and detaining the respondents but they decided to arrest and detain them so the appellant cannot legally be held responsible for the decision. For these and other reasons assigned in the lead judgment of my learned brother, I too allow the appeal with N5,000.00 cost to the appellant.
Counsel not statedFor Appellant
Counsel not statedFor Respondent