GAGARA v. YADZIMAI (2022)

GAGARA v. YADZIMAI

(2022)LCN/16709(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Thursday, July 21, 2022

CA/YL/6/2020

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Mohammed Lawal Abubakar Justice of the Court of Appeal

Between

ABUBAKAR INJIDDA GAGARA APPELANT(S)

And

DANIEL YADZIMAI RESPONDENT(S)

RATIO

DEFINITION OF “DOCUMENTS”

Section 258(a) of the Evidence Act, 2011, defines documents to include books, maps, plans, graphs, drawings, photographs and also includes any matter expressed or described upon any substance by means of letter, figures or marks or by more than one of these means, intended to be used or which may be used for the purpose of recording that matter. From specific items mentioned, it includes anything used to record information of which will qualify as document.

The fact that documents usually retain information in permanent or near permanent form make them a very attractive form of evidence, and is part of what led to the cliché that documentary evidence is the best form of evidence. See Felicia Akinbisade v The State (2006) 17 NWLR (Part 1007) 184, 201
Sections 85 and 86(1) of the Evidence Act 2011, are to the effect that the contents of documents may be proved either by primary or secondary evidence, and that primary evidence means the document itself produced for inspection of the Court. It also contains provisions to the effect that a certified true copy of a public document is the only acceptable secondary evidence of that document. PER TUKUR, J.C.A.

THE DEFINITION OF PUBLIC DOCUMENTS

Section 102 defined public documents thus:
1. “The following are public documents:
2. (a) documents forming the official acts or records of the official acts of – (i) The sovereign authority; (ii) Official bodies and tribunals; or (iii) Public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and
(b) Public records kept in Nigeria of private documents.” PER TUKUR, J.C.A.

THE POSITION OF LAW ON THE CERTIFICATION OF DOCUMENTS

Section 104 of the Evidence Act 2011, which governs certification of documents provides thus:
“(1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.
(2) The certificate mentioned in Subsection 1 of this Section shall be dated and subscribed by such officer with his name and his official title and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
(3) An officer who by the ordinary course of official duty is authorised to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.
A careful examination of the above vis a vis the exhibits in question, reveals that there was substantial compliance with the above provisions in the certification of the exhibits by the Registrar of the Magistrate Courts who were in custody of the originals of the legal advices, thus had the authority to so certify. See Ineibere Bob-Manuel v Felix C.N. Woji (2010) 8 NWLR (Pt. 1196) 260, 273. PER TUKUR, J.C.A.

THE INGREDIENTS OF MALICIOUS PROSECUTION WHICH A PLAINTIFF MUST PROVE TO SUCCEED IN A CASE OF MALICIOUS PROSECUTION

This Court in the case of Ogbonna V. Ogbonna (2014) LPELR CA 200, made a statement as to the purpose of a suit founded in malicious prosecution thus:
“malicious prosecution is a tort which enables a person who is a subject of groundless and unjustified proceeding to seek claims for damages.”
The ingredients of malicious prosecution which a Plaintiff must prove in order to succeed in a case of malicious prosecution have been clearly and correctly outlined by counsel to both parties and they are:
a. That a criminal charge/case was brought against the Plaintiff at the behest of the Defendant
b. That the case was determined in the Plaintiff’s favour;
c. That the case was without reasonable and probable cause; and
d. That the case was malicious.
See MODDIBO v. ABDULMALIK (2016) LPELR-41614(CA); ALABURA v. MAINA & ORS (2015) LPELR-41653(CA) and MAYALEKE & ANOR v. OKENLA (2015) LPELR-41700(CA). PER TUKUR, J.C.A.

THE DEFINITION OF THE “TORT OF FALSE IMPRISONMENT”

This Court in the case of DIAMOND BANK v. OKPALA (2016) LPELR-41573(CA) (Pp 8 – 8 Paras B – E) per Tinuade Akomolafe-Wilson, defined the tort of false imprisonment thus:
“The tort of false imprisonment is the restraining or detaining of a person, if the person doing or causing the detention or imprisonment has no right in law to do so. It is an intentional instigation of the arrest and detention of another without reasonable cause. To succeed in an action for false imprisonment, the plaintiff must show that it was the defendant who was actively instrumental in setting the law into motion against him. – Okonkwo v. Ogbogu (1996) LPELR-2486 (SC) 23, (1996) 5 NWLR (Pt. 449) 420 at 433, Borno State Government v. Ashieik (2007) All FWLR (Pt. 357) 1006.”
See OKEKE v. IGBOERI (2010) LPELR-4712(CA), RIGHE v. ZUBAIRU (2013) LPELR-24233(CA) and MATAZU v. MAZOJI (2014) LPELR-23071(CA).
The Apex Court in the case of OKAFOR VS. ABUMOFUANI (2016) 12 NWLR (Pt. 1525) p.117, per Mary Ukaego Peter-Odili, JSC, gave a guide on similar situations of report to police grounding claims for false imprisonment thus:
“It is a correct representation of the law that if a report as in this case is made to the Police which has been found to be totally false, malicious and without foundation it is the maker of the report that is liable in damages to the Plaintiff for false imprisonment. This is because it is the maker of the report which complaint ignited the action of detention carried out by the Police that does not bring in the Police as a party to the action in the false report and imprisonment.” However, action will not lie against an individual who merely gave information to the Police which led the Police in the exercise of their discretion to arrest a suspect. See ISHENO VS. JULIUS BERGER (NIG) PLC (2008) 6 NWLR (pt. 1084) p. 582.
See OMUMA MICRO-FINANCE BANK NIG. LTD v. OJINNAKA (2018) LPELR-43988(CA) and ISHENO v. JULIUS BERGER (NIG) PLC (2008) LPELR-1544(SC).” PER TUKUR, J.C.A.

JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Adamawa State, Yola Division, in Suit No. ADSY/123/2016 delivered ON 4th November, 2019 by Honourable Justice Helen N. Hammanjoda, wherein the Court gave judgment in favour of the Respondent.

The material facts of the case leading to this appeal is that the Respondent acting on the belief that the Appellant had illegally set law enforcement agents and the machinery of justice against him, instituted an action before the lower Court by a writ of summons dated 9th September, 2016, via which the Respondent as Plaintiff sought the following:
1. A declaration by the Honourable Court that the arrest of the Plaintiff on 23rd July, 2013, and detention from 23rd July, 2013 to 2nd August, 2013 and subsequent detention from 15th January, 2014 to 17th January, 2014 upon the invitation by officers of the Nigeria Police Force, Adamawa State Command at the instigation, unwarranted and unreasonable complaint by the Defendant are unlawful and amount to false imprisonment.
2. A declaration by the Honourable Court that the arrest and detention of the Plaintiff on the 31st March, 2014 to 1st April, 2014 by officers and men of the Nigerian Police Force under the Assistant Inspector General of Police (AIG) Zone 3, at the instigation, unwarranted and unreasonable written complaint of the Defendant while the Plaintiff was under trial before Chief Magistrate Court, Yola town on similar allegation is unreasonable, unlawful and amounts to false imprisonment.
3. A declaration by the Honourable Court that the prosecution of the Plaintiff by the Commissioner of Police Adamawa State upon instigation/unreasonable complaint of the Defendant on 10th January, 2014 upon Police First Information Report (FIR) and which proceedings were terminated and the Plaintiff released unconditionally upon the Legal Advice from the office of the Honourable Attorney General of Adamawa State exonerating the Plaintiff amounts to malicious prosecution and it is unlawful.
4. A declaration by the Honourable Court that the prosecution of the Plaintiff by the office of the Assistant Inspector General of Police Zone 3 Yola, upon the instigation/unreasonable complaint of the Defendant on 1st April, 2014 and which proceedings terminated in the discharge of the Plaintiff upon Legal Advice from the office of the Honourable Attorney General of Adamawa State exonerating the Plaintiff amounts to malicious prosecution and it is unlawful.
5. General damages in the sum of Ten Million Naira (N10,000,000.00) for false imprisonment for the arrest and detention of the Plaintiff by officers and men of the Nigerian Police Force, Adamawa State Command from the 23rd July, 2013 to 2nd August, 2013 and subsequent detention upon invitation from 15th August, 2014 to 17th August, 2014 upon the instigation and unreasonable complaint of the Defendant.
6. General damages in the sum of Ten Million Naira (N10,000,000.00) for false imprisonment for the arrest and detention of the Plaintiff by officers and men of the Nigerian Police Force, Office of the Assistant Inspector General of Police Zone 3, from 31st march, 2014 to 1st April, 2014 upon the instigation and unreasonable complaint of the defendant.
7. General damages in the sum of Fifteen Million Naira (N15,000,000.00) for malicious prosecution of the Plaintiff by Commissioner of Police Adamawa State upon unreasonable complaint/instigation by the Defendant, which proceedings were terminated in the unconditional release of the Plaintiff upon Legal Advice from the office of the Attorney General of Adamawa State.
8. General damages in the sum of Fifteen Million Naira (N15,000,000.00) for malicious prosecution of the Plaintiff by office of the Assistant Inspector General of Police Zone 3, upon unreasonable complaint/instigation by the Defendant, which proceedings were terminated in the discharge of the Plaintiff upon Legal Advice from the office of the Attorney General of Adamawa State.
9. N20,000,000.00 (Twenty Million Naira) damages for pains, psychological trauma, stress, remand imprisonment upon two different arraignments i.e from 10th January, 2014 to 21st January, 2014 and 1st April, 2014 to 11th April 2014, arrest and detention by officers and men of Commissioner of Police, Adamawa State and Assistant Inspector General of Police Zone 3 Yola, at different intervals on the unwarranted complaint of the Defendant.
10. Cost of this suit.

All relevant processes were exchanged between parties and matter devolved to trial. Upon conclusion of trial, the learned trial Judge in a judgment delivered on 4th November, 2019, held that the case is meritorious because the Respondent as Plaintiff proved the four essential elements of malicious prosecution. The Court subsequently entered judgment in favour of the Respondent, granted reliefs 1-4, awarded general damages of varying sums in respect of reliefs 5-8, refused to grant damages in respect of relief 9 and refused to make any order as to cost.

Dissatisfied, the Appellant appealed the judgment via Amended Notice of Appeal dated 22nd July, 2020 and filed on 23rd July, 2021, but deemed as properly filed on 21st September, 2021, with 9 grounds of appeal.

The Appellant’s Brief of Argument is filed on 23rd July, 2021, but deemed as properly filed on 21st September, 2021. Appellant’s counsel formulated 6 issues for determination to wit:
1. Whether or not the trial High Court was right to have relied on Exhibits A, B1, B2 and C in arriving at a decision that the Respondent has proved his claim of malicious prosecution and false imprisonment against the Appellant (Grounds 1 & 3)
2. Whether or not the trial High Court Yola was right to have held that the Respondent has proved malicious prosecution against the Appellant on the ground that the Appellant caused the prosecution of the Respondent at the Magistrate Court, Yola. (Ground 2)
3. Whether or not from the totality of evidence both oral and documentary adduced at the trial High Court Yola, the Respondent has proved malicious prosecution and false imprisonment as required by the law against the Appellant. (Ground 4)
4. Whether or not the trial High Court was right to have held that there was no reasonable and probable cause to warrant the report or complaint to the Police against the Plaintiff (now Respondent) on the two (2) occasions. (Ground 6)
5. Whether or not the trial High Court Yola was right when it held that DW1 and DW2 had no legal evidence before it because of the difference between the signatures on their Statements on Oath and the sample signatures extracted during cross-examination. (Ground 7)
6. Whether or not the award of the total sum of Eight Million, Five Hundred Thousand Naira (N8,500,000.00) as general damages against the Appellant for malicious prosecution and false imprisonment is justifiable when the Respondent has failed to prove his claim against the Appellant. (Ground 9)

The Respondent’s Brief of Argument is dated and filed on 14th December, 2021, but deemed as properly filed on 3rd February, 2022. Respondent’s counsel distilled four issues for determination to wit:
1. Whether the trial Court was not right when it admitted into evidence Exhibits A, B1, B2 and C in evidence in support of the Respondent’s case? (Grounds 1 & 3)
2. Whether from the totality of the evidence adduced, the trial Court was not right when it held that the Respondent was able to prove malicious prosecution and false imprisonment against the Appellant as required by law? (Grounds 2,4 and 5)
3. Whether the trial Court was not right when it held that there was no reasonable cause to warrant the report or complaint to the Police against the Plaintiff (now Respondent) on the two occasions? (Ground 6)
4. Whether the trial Court was not right when it held that DW1 and DW2 had no legal evidence before it because of the difference between the signatures on their statements on oaths and the sample signatures? (Ground 7)

A careful consideration of the issues raised by counsel on both sides and the facts of this appeal at trial, reveals that two salient issues require determination, under which all the arguments of parties will be accommodated. The issues are:
1. Whether the trial Court properly evaluated the evidence before it in arriving at its decision?
2. Whether the decision of the trial Court that the Appellant maliciously prosecuted the Respondent is sound and legally justifiable?

ISSUE ONE:
WHETHER THE TRIAL COURT PROPERLY EVALUATED THE EVIDENCE BEFORE IT IN ARRIVING AT ITS DECISION?

Learned counsel for the Appellant argued that the trial Court was not right to have relied on Exhibit A (Legal Advice from the Ministry of Justice, Yola dated 5th March, 2014), Exhibit B1 (Record of Proceedings of Chief Magistrate Court Yola between C.O.P v. Daniel Yadzimai in Suit No. YL/6C/2014), Exhibit B2 (Record of Proceedings of Chief Magistrate Court Yola between A.I.G Zone 3 v. Daniel Yadzimai in Suit No. YL/6C/2014) and Exhibit C in arriving at the decision that the Respondent had proved his claim of malicious prosecution and false imprisonment against the Appellant, because the Exhibits were obtained from criminal proceedings which make them legally inadmissible in civil proceedings.
He relied on: Abubakar v. Joseph (2008) 13 NWLR (Pt.1104) 307 at 353-354, Chief James Onyewuke v. Modu Sule (2011) LPELR-9084 (CA), Magaji v. Ogele (2012) 50 WRN page 41 at 102 lines 25-35 Ratio 12, page 108, line 45 and Ismail v. FRN (2019) EJSC Vol. 126, page 1 at page 26, paras F-G.

Learned counsel submitted that Exhibits A and C being public documents, could only be tendered either as originals or certified true copies, a settled principle of law which wasn’t complied with at trial, because Exhibits A and C as tendered were not original copies, neither were they properly certified as required by law. Counsel predicated the foregoing on the assertion that Exhibits A and C only contains the stamp of the Chief Magistrate Court Yola, contrary to the provisions of Section 104 (1) and (2) of the Evidence Act, 2022, as the documents did not emanate from the Court nor was it shown how the Court came to be in possession of same. Counsel also submitted that assuming the Chief Magistrate Court Yola was the proper authority to certify Exhibits A and C, the Exhibits were not properly certified as required by Section 104 (1) and (2) of the Evidence Act, 2011, as they do not contain the name of the officer who certified the documents and there is no evidence that the requisite fees for certification were paid.
He relied on: Udo v. The State (2016) EJSC (Vol. 42) page 150 at page 173 paras F and G, Ratios 5 and 6, Iorapuu v. The State (2019) EJSC (Vol.124) page 140 at pages 161-162 paras C-A nad paras A-E, Ratios 4 and 5 and Emeka v. Ikpeazu (2017) EJSC (Vol.67) page 57 at page 108, paras F-G, Ratio 11.

Learned counsel posited that the learned trial Judge was wrong to have rejected the statements on oath of DW1 and DW2 based on difference between the signatures on the statements on oath and the samples of their signatures obtained during cross-examination. Counsel based his position on the fact that the issue of difference in signatures was not pleaded, thus the evidence obtained on it during cross-examination is inadmissible and goes to no issue.

He relied on the case of Adamu v. Kogi State House of Assembly (2019) EJSC (Vol.116) page 1 at pages 24-25, paras D-A, Ratio 7.

On the other hand, learned counsel for the Respondent argued that Exhibits A, B1, B2 and C, were not inadmissible on the grounds that they were record of criminal proceedings because in matters of malicious prosecution and/or false imprisonment, such evidence is relevant and admissible as decided by the Supreme Court decision of Bayol v. Ahemba (1999) 7 SCNJ 233 at 395, and the fact that the Evidence Act 2011 never outlawed the admissibility of such specie of evidence.

Learned counsel sought to distinguish the case of Abubakar v. Joseph (2008) 13 NWLR (Pt.1104) 307 at 353-354, on the grounds that the case bordered on negligence occasioned by dangerous driving which does not require proof of criminal prosecution as one of the ingredients and the dictum referred to was an obiter dictum.

Counsel submitted that Exhibits A & C being both classified and confidential communications between the Government and its Officials marked secret and thus, exempted from the general consumption of the public, thus they cannot be said to be public documents properly so called and the said Exhibits are not subject to the requirements of Section 104 of the Evidence Act 2011.

He referred to the case of Governor of Ekiti State v. Ojo (2006) ALL FWLR (Pt.331) 1298 at 1304-1305 E-F.

Counsel argued in the alternative that the documents were properly certified as Exhibits B1 and B2, reveal that Exhibits A and C were filed in Court and as such the Court was in custody of the said legal advices and could certify same for members of the public.

Learned counsel posited that the trial Court was right to have compared the signatures of DW1 and DW2, before reaching the conclusion that the signatures were different from those on the statements on oath, in line with the power conferred on the Court in Section 101 of the Evidence Act, 2011. Counsel submitted that the position of Appellant’s counsel and reliance on the authority of Adamu v. Kogi State House of Assembly, would not avail the Appellant because the law that evidence elicited under cross-examination is not helpful on unpleaded facts does not apply to a situation where sample signatures were obtained during cross-examination in order to determine whether the persons who claim they made statements on oath actually made said statements.

RESOLUTION OF ISSUE ONE
Section 258(a) of the Evidence Act, 2011, defines documents to include books, maps, plans, graphs, drawings, photographs and also includes any matter expressed or described upon any substance by means of letter, figures or marks or by more than one of these means, intended to be used or which may be used for the purpose of recording that matter. From specific items mentioned, it includes anything used to record information of which will qualify as document.

The fact that documents usually retain information in permanent or near permanent form make them a very attractive form of evidence, and is part of what led to the cliché that documentary evidence is the best form of evidence. See Felicia Akinbisade v The State (2006) 17 NWLR (Part 1007) 184, 201

Sections 85 and 86(1) of the Evidence Act 2011, are to the effect that the contents of documents may be proved either by primary or secondary evidence, and that primary evidence means the document itself produced for inspection of the Court. It also contains provisions to the effect that a certified true copy of a public document is the only acceptable secondary evidence of that document.

Section 102 defined public documents thus:
1. “The following are public documents:
2. (a) documents forming the official acts or records of the official acts of – (i) The sovereign authority; (ii) Official bodies and tribunals; or (iii) Public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and
(b) Public records kept in Nigeria of private documents.”

From the above, it is indubitable that Exhibits A, B1, B2 and C are public documents, as they constitute record of the official acts of Public officers and thus require certification before they could be properly admitted and relied upon by the lower Court.
See Onwuzuruike v Edoziem (2016) 6 NWLR (Pt. 1508) 215, 233-234.

The first attack on the admissibility of the above named Exhibits by Appellant’s counsel, which is that the Exhibits are records of proceedings in a criminal matter which are inadmissible in civil proceedings, is not a proper statement of the law and holds no water. One of the fundamental principles of the law of evidence with regards to admissibility, as codified in Sections 1-15 of the Evidence Act, 2011, is to the effect that admissibility is principally determined by relevance, thus a piece of evidence if relevant to the facts in issue is admissible except rendered inadmissible by operation of law. The learned trial Judge was therefore right to have admitted the Exhibits, as they are directly related to the ingredients required for the proof of the case at trial.

The second attack has to do with proper certification of Exhibits A and C being two separate legal advices which contained the opinion that no prima facie case was made out against the Respondent with regards to the basis for the two separate arrests. Section 104 of the Evidence Act 2011, which governs certification of documents provides thus:
“(1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.
(2) The certificate mentioned in Subsection 1 of this Section shall be dated and subscribed by such officer with his name and his official title and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
(3) An officer who by the ordinary course of official duty is authorised to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.
A careful examination of the above vis a vis the exhibits in question, reveals that there was substantial compliance with the above provisions in the certification of the exhibits by the Registrar of the Magistrate Courts who were in custody of the originals of the legal advices, thus had the authority to so certify. See Ineibere Bob-Manuel v Felix C.N. Woji (2010) 8 NWLR (Pt. 1196) 260, 273.

Appellant’s grouse with the treatment of the statement on oath by the trial Court is also not sustainable, as the trial Judge simply followed the procedure clearly set out in Section 101 of the Evidence Act 2011.

In light of the above, this issue is resolved against the Appellant.

ISSUE TWO:
WHETHER THE DECISION OF THE TRIAL COURT THAT THE APPELLANT MALICIOUSLY PROSECUTED THE RESPONDENT IS SOUND AND LEGALLY JUSTIFIABLE?

Learned counsel for the Appellant argued that from the totality of the evidence adduced at trial, the Respondent failed to prove malicious prosecution and false imprisonment as required by law against the Appellant, since with regards to malicious prosecution: there was no trial of the Respondent by any competent Court of jurisdiction; the Respondent did not prove that the Appellant instigated the Police against the Respondent; the Appellant had probable cause for reporting the case of armed robbery to the Police, having been robbed within a period where the Respondent had been threatening him; and the Respondent failed to prove the element of malice against the Appellant.
He relied on: Egor v. Ovat (2014) ALL FWLR Pt.755 & Page 28 at Pp.301 -302, paras H-B, pg.310 paras A-C., page 308 paras A-C.

Counsel submitted that the Respondent also failed to prove the allegation of false imprisonment against the Appellant having failed to show by evidence that the Appellant instigated, pressured or in any manner influenced the Police to arrest and/or detain the Respondent. Counsel pointed that the Appellant’s statement of defence and testimony contain averments to the effect that the Appellant was hospitalised for three months after reporting the armed robbery incident to the Police, thus had no influence over the events that followed after, and that the Appellant further stated that he did not at any point interfere, influence or attempt to unduly persuade the Police in the prosecution or treatment of the Respondent.
He once again referred to the case of Egor v. Ovat (2014) ALL FWLR Pt.755 pages 315-316, paras G-G.

Counsel asserted that Appellant and probable cause to report to the Police, having been attacked by armed robbers at his residence, which led to the Appellant sustaining injuries that left him hospitalised. Counsel pointed out that the fact that there was such an armed robbery incident was never denied and thus admitted by the Respondent at trial. He also posited that the Appellant only named the Respondent as a suspect in his report to the Police due to the threats coming from the Respondent prior to the robbery incident, but that the Appellant left the investigation to the Police.

Counsel submitted that flowing from its previous arguments, the total damages of N8,500,000.00 (Eight Million, Five Hundred Thousand Naira) was awarded in error as there was no basis for the award, as malicious prosecution and false imprisonment were not established by the Respondent against the Appellant.

On the other hand, learned counsel for the Respondent argued that the Respondent proved the liability of the Appellant for malicious prosecution, as evidence before the lower Court shows that it was the Appellant who set the law in motion against the Respondent in both Suit No. YL/6C/2014 between C.O.P v. Daniel Yedzimal and Case No. YL/61C/2014 between AIG Zone 3 v. Daniel Yedzimal, as admitted by the Appellant in his statement of defence, with an attempted justification that he did so based on threats from the Respondent; that the ingredient of Respondent’s prosecution which ended in a discharge, was proven by Exhibits B1 and B2, which proceedings of the Chief Magistrate Court Yola Town culminated in a discharge of the Respondent on the basis of two separate legal advice contained in Exhibits A & C and that the final two ingredients of the tort were established by the fact that the Appellant did not show any good reason why he set in motion the machinery of justice against the Respondent, as the putative explanation of threats was not substantiated at trial.
He relied on: Chaibee Bayol v. Iorkighir Ahemba (1999) SCNJ 223 at 232, Mamman v. Dambe (2002) FWLR (Pt.86) 428 at 452 E-G, Balogun v. Amubikahun (1989) 3 NWLR (Pt.107) 18 at 27 and Agbase v. Okunola & 3 Ors (2010) 2 NWLR 62 at 79 para 52.

Learned counsel submitted that the Respondent proved that he was falsely imprisoned at the instigation, and upon unreasonable complaint of the Appellant.
He referred to the cases of Nwadinobi v. Botu (2002) FWLR (Pt.96) P.450 at 458-459 G-A, R.3 and Okonkwo v. Ogbogu & Anor (1996) 4 SCNJ 190 at 206 para 20-30.

Counsel pointed out that two actions of the Appellant which reveals malice on Appellant’s part was that firstly, after the Appellant had gotten information that the Acting State Coordinator of WHO Adamawa State had gotten the Respondent out on bail following the Respondent’s arrest at the instigation of the Appellant, the Appellant wrote a petition against the State Coordinator to the Country Representative of WHO accusing the Coordinator of bias and aiding of a criminal, and that secondly, upon the first legal advice from the DPP which was favourable to the Respondent, the Appellant wrote another petition to the office of the AIG Zone 3, levelling other criminal allegations against the Respondent, mainly that the Respondent was demanding ransom from the Appellant’s wife.

RESOLUTION OF ISSUE TWO:
At the heart of the most popular manifestations of the torts of malicious prosecution and false imprisonment is the improper use of the machinery of justice, specifically law enforcement agencies such as the Police, EFCC, etc and/or the Court system, to “punish” someone else for some reason or the other, other than an honest desire to achieve justice or report a crime. In malicious prosecution, a criminal case had been instituted against the Plaintiff at the instigation of the Defendant, where for false imprisonment, the Plaintiff had been detained, depriving him of his fundamental right to freedom of movement at the instigation of the Defendant.

The tort of malicious prosecution may be described as the situation that arises where the defendant had maliciously and without probable cause, initiated against the plaintiff a criminal prosecution which terminates in the plaintiff’s favour and which results in damage to the plaintiff’s reputation.

This Court in the case of Ogbonna V. Ogbonna (2014) LPELR CA 200, made a statement as to the purpose of a suit founded in malicious prosecution thus:
“malicious prosecution is a tort which enables a person who is a subject of groundless and unjustified proceeding to seek claims for damages.”

The ingredients of malicious prosecution which a Plaintiff must prove in order to succeed in a case of malicious prosecution have been clearly and correctly outlined by counsel to both parties and they are:
a. That a criminal charge/case was brought against the Plaintiff at the behest of the Defendant
b. That the case was determined in the Plaintiff’s favour;
c. That the case was without reasonable and probable cause; and
d. That the case was malicious.
See MODDIBO v. ABDULMALIK (2016) LPELR-41614(CA); ALABURA v. MAINA & ORS (2015) LPELR-41653(CA) and MAYALEKE & ANOR v. OKENLA (2015) LPELR-41700(CA).
The contention of Appellant’s counsel, trying to import a qualification to the first ingredient, by stating that the case must have been before a Court of competent jurisdiction and implying that a full trial must ensue, is not correct. It is enough that a judicial act such as the preferring of a charge and arraignment in Court occurred against the Respondent.

The fact that the two cases against the Respondent resulted in his favour are not in contention, so I will proceed to look at the ingredients of false imprisonment before looking at the crucial elements of probable cause/ malicious intent.
This Court in the case of DIAMOND BANK v. OKPALA (2016) LPELR-41573(CA) (Pp 8 – 8 Paras B – E) per Tinuade Akomolafe-Wilson, defined the tort of false imprisonment thus:
“The tort of false imprisonment is the restraining or detaining of a person, if the person doing or causing the detention or imprisonment has no right in law to do so. It is an intentional instigation of the arrest and detention of another without reasonable cause. To succeed in an action for false imprisonment, the plaintiff must show that it was the defendant who was actively instrumental in setting the law into motion against him. – Okonkwo v. Ogbogu (1996) LPELR-2486 (SC) 23, (1996) 5 NWLR (Pt. 449) 420 at 433, Borno State Government v. Ashieik (2007) All FWLR (Pt. 357) 1006.”
See OKEKE v. IGBOERI (2010) LPELR-4712(CA), RIGHE v. ZUBAIRU (2013) LPELR-24233(CA) and MATAZU v. MAZOJI (2014) LPELR-23071(CA).
The Apex Court in the case of OKAFOR VS. ABUMOFUANI (2016) 12 NWLR (Pt. 1525) p.117, per Mary Ukaego Peter-Odili, JSC, gave a guide on similar situations of report to police grounding claims for false imprisonment thus:
“It is a correct representation of the law that if a report as in this case is made to the Police which has been found to be totally false, malicious and without foundation it is the maker of the report that is liable in damages to the Plaintiff for false imprisonment. This is because it is the maker of the report which complaint ignited the action of detention carried out by the Police that does not bring in the Police as a party to the action in the false report and imprisonment.” However, action will not lie against an individual who merely gave information to the Police which led the Police in the exercise of their discretion to arrest a suspect. See ISHENO VS. JULIUS BERGER (NIG) PLC (2008) 6 NWLR (pt. 1084) p. 582.
See OMUMA MICRO-FINANCE BANK NIG. LTD v. OJINNAKA (2018) LPELR-43988(CA) and ISHENO v. JULIUS BERGER (NIG) PLC (2008) LPELR-1544(SC).”
There is no doubt that the Respondent was arrested and detained by the Police on two different occasions and charged to Court on both occasions, at the instigation and active involvement of the Appellant. It is also clear from the evidence at trial, that the Appellant had no probable cause to suspect the Respondent of armed robbery, but only used the robbery incident as an excuse to deal with his Creditor who had asked for his money back in a manner the Appellant did not like. Even more importantly with regards to malicious intention is the fact that when the Respondent’s principal, a staff of the World Health Organisation obtained the bail of the Respondent after one of the arrests, the Appellant wrote the WHO accusing that staff of bias and supporting a criminal. This act confirms to the reasonable man that the Appellant wasn’t interested in justice but in seeing the Respondent languish in detention. It is true that a person who made a report to the Police may be liable for the tort of false imprisonment, where the report he made turns out to be false in nature and based on ulterior motives other than one borne out of a desire to see justice done based on an honest belief or to assist the Police in the exercise of their duty of crime prevention.
From the above, it is clear that the decision of the lower Court was sound and valid in law. The only issue Appellant took with the award of damages was that there was no legal basis, as in his opinion, neither malicious prosecution nor false imprisonment was made out against him. A review of the facts and evidence at the trial reveals that the Appellant had caused the false imprisonment of and maliciously prosecuted the Respondent on two occasions.

In line with the above, this issue is also resolved against the Appellant. In summation, I find the appeal lacking in merit and same is hereby dismissed. The judgment of the lower Court delivered on 4th November, 2019 in Suit No. ADSY/123/2016 is hereby affirmed. Parties to bear their respective costs.

CHIDI NWAOMA UWA, J.C.A.: I read in advance a draft copy of the leading judgment just delivered by my learned brother, JAMILU YAMMAMA TUKUR, JCA. My Lord has exhaustively dealt with the issues in the leading judgment. I adopt same as mine in holding that the appeal lacks merit and same is accordingly dismissed.

I affirm the decision of the lower Court in Suit No. ADSY/123/2016 delivered on 4th November, 2019.

MOHAMMED LAWAL ABUBAKAR, J.C.A.: I had the privilege to read in advance the draft copy of the lead judgment just delivered by my learned brother, JAMILU YAMMAMA TUKUR, JCA. I agree with the decision of my Lord that the appeal is unmeritorious and should be dismissed. It is hereby dismissed by me.

The decision of the lower Court in Suit No. ADSY/123/2016 delivered on 4th November, 2019 is hereby affirmed.