JOSIAH OTAMEH v. ADEKUNLE ADESANYA & CO (2016)

JOSIAH OTAMEH v. ADEKUNLE ADESANYA & CO

(2016)LCN/8400(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 23rd day of March, 2016

CA/I/148/2002

JUSTICES

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

Between

JOSIAH OTAMEH Appellant(s)

AND

ADEKUNLE ADESANYA & CO Respondent(s)

TORT: MALICE IN FALSE IMPRISONMENT; THE CAUSE OF ACTION FOR A PERSON UNLAWFULLY ARRESTED BY THE POLICE
As I hold that the reasons are untenable and unjustified in law, the motive behind such arrest could deduced from the circumstances which I hold would be to adversely affect the 1st and 2nd plaintiff in their electronic business. The actions are actuated by malice and indecent intentions. In law, if an arrest is unlawful, the person so arrested and/or detained by the police can maintain an action in tort against the complainant. See the case of Balogun vs. Amubikanwun supra. See also in particular the case of Daniel Okonkwo vs. Fred Ogbu & Or. (1996) 5 NWLR (Pt.449) page 420 by the Supreme Court on issue of malice in false imprisonment cases. PER. ONYEREM OKORONKWO, J.C.A.

TORT: MALICIOUS PROSECUTION; WHAT THE PLAINTIFF MUST SHOW TO SUCCEED IN AN ALLEGATION OF MALICIOUS PROSECUTION
For example in Owomero vs. Flour Mills (Nig.) Ltd (1995) 9 NWLR 622 at 630-691 it was there held that: On Duty on plaintiff in action for malicious prosecution to succeed in an allegation of malicious prosecution, the plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against the plaintiff. The expression ?setting the law in motion? against the plaintiff involves such manifest acts directly or circumstantially which vested with prosecution to undertake the act of prosecution. It connotes some element of prejudice or bias that actuated the defendant to do what he did. (Mandilas & Karaberis Ltd. vs. Apena (1969) NMLR 199 referred to) Pp. 630 ? 631. Paras H-B). In Okonkwo Vs. Ogbogu supra it was held following Mandillas & Karaberis Ltd vs. Apena (1969) NMLR 199 that 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 in motion against him. PER. ONYEREM OKORONKWO, J.C.A.

TORT: ABUSE OF PROCESS; NATURE OF TORT OF ABUSE PROCESS
It is the tort of “Abuse of Process? Street in the Law of torts defines Abuse of process as – “It is a tort to use Legal process in its proper form in order to accomplish a purpose other than that for which it was designed and thereby cause damage.?
The beauty of this tort in the circumstances of this case is that in this head of tort, the need not prove want of reasonable and probable cause nor need the proceedings have, terminated in his favour. The plaintiff need prove that defendant has used the process for some improper purpose. See STREET ON TORTS 6TH edition 400. See also Grainger vs. Hill (1834) 4 Bing NC 212 Gibbs vs. Rike (1842) 9 M & W 351.
The cases show that this apparently novel tort is indeed of antique origin dating back to the fountains of Pristine common Law. In Clerk & Lindsell 17th Edition Common Law Library Number 3 at Para 15 ? 50. The tort was described as Vexatious use of process where the following Learned Commentary was proclaimed and which I with respect reproduce.
Vexatious use of process: It has been held that a process in itself perfectly well founded and proper may amount to a legal wrong if vexatiously and unnecessarily repeated. In Heywood v. Collinge, the defendant caused the plaintiff to be arrested (before arrest on mesne process was abolished) in an action commenced in the Exchequer; he did not proceed with that action and the plaintiff was consequently discharged. He then commenced fresh proceedings in the Queen’s Bench in respect of the sane cause of action, and again arrested the plaintiff. Under these circumstances, the Court decided that an action might lie in respect of the second arrest without inquiring into the result of the proceedings.
“If an action is not sustainable under such circumstances, we must be prepared to hold that the process of the Court may be abused by a plaintiff for purposes however wanton or malicious. We may suppose the case of a party harassing the defendant under the forms of law by maliciously suing out three writs for the same cause on the same day and successively arresting the defendant on all three of them. In such a case the principle of the law allows an action, though in form it may have some novelty.?
So in the case of Waterer vs. Freeman? an action was held to lie against a judgment creditor who, pending an execution, unnecessarily and maliciously seizes his debtor?s goods under second a writ.
This is the tort Abuse of Process or Vexatious use of process is the tort that admirably fit into the facts ably elicited by the trial Judge. PER. ONYEREM OKORONKWO, J.C.A.

NONYEREM OKORONKWO, J.C.A. (Delivering the Leading Judgment): The facts of the case that led to this appeal relate to two traders who occupied adjoining market stalls of No.84 and 89A Akarigbo Street Sagamu Ogun State. They, the appellant and the respondent both dealt in the same articles of Merchandise such as radio, television, refrigerators air conditioners electric fans video set and recorders.

From the findings of the trial Court, bitter rivalry and jealousy arose over customers and sales whereby respondent began alleging that appellant was enticing his customers away with the use of charm with a view to stifling appellant out of business.

The feud between these trader/neighbours became so intense that on a frequent basis, the respondent went to the police and allege some complaint either bothering on use of charms against him (respondent) to destroy his business or to conduct likely to cause breach of peace or to burglary’ These happened on several occasions in 1985, 1990 and in 1993.

On each of those occasions, the police would promptly arrest and detain the respondent however briefly but yet no prosecution took place because the appellant would withdraw the case
?
The

proximate incidence was that of 1st September, 1993 when the appellant wrote the police in Exhibit C alleging that 1st and 2nd respondents burgled his shop on the night of 31/8/93 whereupon the police arrested and detained those respondents. In the course of the investigation, the police sought to execute a search warrant on the shop and house of the 1st and 2nd respondents and asked appellant to accompany them to identify the alleged stolen materials. Appellant refused and later withdrew the complaint whereupon respondent brought the suit in the High Court Sagamu Ogun State claiming as per his amended statement of claim thus:
(a) A declaration that the series of arrests and detention of the 1st plaintiff by the Sagamu Police on several occasions and the subsequent arraignment of the 1st plaintiff at instances of the defendant was malicious and wrongful.
(b) The sum of five hundred thousand (N500,000,00) Naira as damages for loss of income, harassment, unlawful arrests and detention and consequential loss to the plaintiffs resulting from the said arrest, false imprisonment and frivorous prosecution by the Police in Sagamu at the defendant?s

instance, thereby depriving the plaintiffs of their freedom and imputing bad character to the Plaintiffs.
(c) The plaintiffs jointly and severally claim from the defendant the sum of five hundred thousand Naira (N500,000.00) as damages for the unlawful arrests and malicious procurement of the arrests, detention and prosecution of the 1st plaintiff at the instance of the defendant.
(d) A sum of one Million Naira (N1,000,000.00) being damages for libel contained in the written statement dated 1/9/93 made the defendant to the police at the Central Police Station, Sagamu by reason of which the Plaintiffs were brought into odium, hatred and ridicule in the estimation of right-thinking members.

The case proceeded to hearing at which sessions witnesses testified on both divide.
?
In his judgment the trial Judge E. O. Olatoye upon considering the evidence and evaluating same held as follows at page 103 of the record thus:
The reasons given by the defendant for arresting the 1st plaintiff on the several occasions admitted by him are in my opinion merely sentimental and untenable in law. A belief in juju or charm is an unreasonable belief in law.

Therefore it is my opinion and I so hold that the series of arrests the 1st and 2nd plaintiffs at the instance of the defendant are unjustifiable and unlawful.
As I hold that the reasons are untenable and unjustified in law, the motive behind such arrests could be deducted from the circumstances which I hold would be to adversely affect the 1st and 2nd plaintiffs in their electronic business. The actions are actuated by malice and indecent intentions. In law, if an arrest is unlawful, the person so arrested and/or detained by the police can maintain an action in tort against the complainant. See the case of Balogun vs. Amubikanwum supra. See also in particular the case of Daniel Okonkwo vs. Fred Ogbu & Or. (1996) 5 NWLR (Pt.449) p.420 by the Supreme Court on issue of malice in imprisonment cases.

The Court in its judgment of 27/7/99 acceded to the claims of the respondent and awarded N250,000 damages in total.
?
Being dissatisfied with the judgment, the appellant by Notice of Appeal fired 13/8/99 lodged this appeal alleging that:
1. The learned trial judge erred in law and fact in awarding damages in favour of the plaintiffs who did not plead

specifically his Income and the amount of the loss sustained as a result of the facts of the defendant.
2. The learned trial judge erred in law and fact and thereby came to a wrong conclusion in accepting that a privileged written statement made at the Police Station in answer to questions by the investigating police officer as publication of libelous statement.
3. The judgment is against the weight of evidence adduced in this case.

It would appear that 5 more grounds of appeal were filed either in substitution or in addition to the original grounds. Captioned, they allege the Lower Court thus:
GROUND (1)
The learned trial judge of the Lower Court erred in Law and fact and come to a wrong decision by accepting there were series of arrests and detentions of the 1st plaintiff on several occasions and the subsequent arrangement of the plaintiff at the instance of the Defendant was malicious and wrongful.
GROUND (2)
The learned trial judge erred in law and fact by awarding damages in favour of the Plaintiff who did not plead and proof specifically his business annual income, capital, and the loss sustained as a result of the

alleged acts of the Defendant.
GROUND (3)
The learned trial judge erred in law and fact came to a wrong by accepting that a privileged written statement made at the police station in reply to question asked by the investigating police officer was a libelous statement.
GROUND (4)
The 1st and 2nd plaintiffs did not discharge the burden that the reports made to the Police on them by the Defendant were made out of Malice or falsehood.
GROUND (5)
No iota of evidence was led by the plaintiffs to support any false imprisonment of either the first or second plaintiffs.
?
In the appellant’s brief that followed filed 7/2/06, issues corresponding as to the grounds as it appeared were formulated thus:
The issue to be determined is whether there were various arrest and detention of the 1st plaintiff falsely and maliciously caused by the Defendant on several occasion as alleged by the 1st plaintiff in paragraph 5 of the Amended Statement of Claim dated the 20th day of May 1998.
Whether the question raised on this will help in the determination award of damages as the case of the plaintiff was based

on the type of his business and his status in Sagamu. When the 2nd plaintiff did not give any evidence of loss to her in her business;
Whether, failure of the plaintiff to substantiate with positive and credible witness to proof the allegations Ground made against the Defendant when the 2nd Defendant did not give evidence of any loss or damaged.

In arguing his ground 1, the appellant by his counsel Olutayo Solarin that following the ethnological; definition of arrest there was no evidence that it was the respondent that arrested the appellant. It was further argued that on the three occasions the respondent was brought to the police station in 1985, 1990 and 1993 he (respondent) was merely reprimanded or cautioned by the police and released to go and not detained.

For ground 3, appellant grouse was that no evidence was led as to damage for loss of business and that “there was no evidence of weekly, monthly, or yearly sales which will show the sales of his business?
?
I find it difficult to understand the complaint in the Additional Ground 3 of the appellant which I herewith reproduced to avoid any omission. It is impossible to tell

what the complaint therein is. The argument there is as set out:
ADDITIONAL GROUND 3
The complaint of the plaintiffs here is that it was the 1st and 2nd Plaintiffs who burgled his shop. In the review of the evidence produced in Court by the judge of the Lower Court said ?the report most serious was made that it was the 1st and 2nd plaintiffs who burgled the shop of the defendants? (See page 102 lines 17 & 18), of the record of proceedings, this was not what the defendant told the police. By the evidence of the defendant in Court he said ?I told the police that I suspected the 1st plaintiff who had threatened to send me away from this town?. The defendant said he ?suspected? from this it is clear that what the judge had in mind at the time of the review of the evidence before him was different from what the defendant said:
The trial judge again said in his preview of the evidence before him ?belief in juju charm is an unreasonable belief in law. That is correct. But in this contest belief can be due to fear: you may not belief but you may be afraid. I submit that the defendant has taken the right step

by reporting the 1st and 2nd plaintiff to the police since the police are the custodian of law and order.
For instance if you come across a snake in the bush, a normal person will run away although he can kill the snake ordinarily but fear in him may make him to run away. I submit that to conclude that action taken by the defendant is unreasonable is unfair. When plaintiff was brought before the D.P.O., He was reprimanded for boasting about the charms. The defendant is not an indigene and the plaintiffs have used this to their advantage.
He may not believe in Juju charm but since he lives in Sagamu, he must have heard about ?Epe Ijebu? (Ijebu Curse). On he must have seen some mad men or women around the township who were alleged to have become mad as a result of Ijebu Curse.
I thereby urged your lordship to consider the weight of evidence by plaintiff.
?
It must be pointed out that since the introduction of brief writing in appellate practice, it is standard practice to formulate issues from the grounds of appeal filed and argue such issues which may span one or more grounds’ It is not usual as the appellant has done in this

appeal to argue grounds of appeal as if they are synonymous with the issues.

For the respondents two issues were formulated as follows:
1. “Whether the respondents have discharged the burden of proof placed on them and entitled to judgment and
2. “Whether the appellant has a valid appeal in view of the incurable defect in the additional ground of appeal.?

Concerning the defect in the appeal the respondents in paragraph 1.01, 1.02, 1.05 and 1.11 of the appellant?s brief
The respondents submit sirs that that Honourable Court granted leave for the Appellant to file additional grounds of Appeal on the 18th day of January, 2006 and only 2 purported grounds additional of appeal were exhibited but in this main appeal the appellant voluntarily stated five (5) additional grounds of appeal. (See page 2 of the appellant’s brief) while arguments were canvassed for 3 grounds of appeal in place of issues for determination (see pages 3-4 of the appellant?s brief of argument.
The respondents submit sirs that purported additional grounds of appeal canvassed and argued by the appellant are with due respect incompetent grounds and

since the appellant has withdrawn his original grounds of appeal. See page 2 lines 1 ? 2 of the appellant?s brief of argument.
It is further submitted sirs that the issue formulated by the appellant at page 3 of the appellant?s brief of appellant?s brief of argument has no correlation with the additional grounds of appeal relied on.
I submit that a fortiori the purported issue formulated by the appellant has no nexus with the ground of appeal and also incompetent. SEE KANO ILE PRINTERS LTD VS. GLOEDE & HOFF (NIG) LTD (2005) 4 FWLR (Pt.278) 69 @ 70.

I have earlier hinted at the structure of the appellant?s brief and would return it in due course.

On the second issue, respondent contend that following the elaborate findings made by the trial Court at pages 102-104 of the record, it is established that the appellant without reasonable cause but with malice set the police against the respondents and that was sufficient for the tort. Concerning damages, respondent rely on reasoning of the trial judge pages at 105-107 of the record.
?
In considering this appeal, a starting point in addition to the facts of

the case already given, is the finding of the trial judge who summed up the case of the parties at page 102 of the record thus:
In my own candid opinion the above evidence by the defendant amounted to an admission of the complaint of the plaintiffs in the statement of claim for harassment of plaintiffs, series of arrest, detention and prosecution. The reason given by the defendant for arresting the 1st plaintiff in particular is because the 1st plaintiff boasted all over the place that he would use juju to harm the defendant or destroy his business as electronics dealer. No charm was ever produced by the defendant to the police before the police would spring into action to arrest and detain the 1st plaintiff. This was the complaint in 1985, 1990 and put of 1993. It was later in 1993 that the threat to life of defendants’ son was added and the 1st plaintiff was charged to Magistrates’ Court for conduct likely to cause breach of the peace.
That charge would be a far cry from the complaint of threatening life. Then in 1/9/93, the most serious report was made that it was the 1st and 2nd plaintiffs who burgled the shops of the defendant in the night of

31/8/93. That 1st and 2nd plaintiffs were arrested and detained at the police station. The defendant made a statement to that effect ? see Exhibit ?C?.
The reasons given by the defendant for arresting the 1st plaintiff on the several occasions admitted by him are in my opinion merely sentimental and untenable in law. A belief in juju or charm is an unreasonable belief in law. Therefore it my opinion and I so hold that the series of arrests of the 1st and 2nd plaintiffs at the instance of the defendant are unjustifiable and unlawful.
As I hold that the reasons are untenable and unjustified in law, the motive behind such arrest could deduced from the circumstances which I hold would be to adversely affect the 1st and 2nd plaintiff in their electronic business. The actions are actuated by malice and indecent intentions. In law, if an arrest is unlawful, the person so arrested and/or detained by the police can maintain an action in tort against the complainant. See the case of Balogun vs. Amubikanwun supra. See also in particular the case of Daniel Okonkwo vs. Fred Ogbu & Or. (1996) 5 NWLR (Pt.449) page 420 by the Supreme Court on

issue of malice in false imprisonment cases.

There is something extra ordinary about this case. It is true the learned trial judge had reviewed the facts and stated some relevant cases including (1) Balogun Vs. Amubikanwun (1989) 3 NWLR (Pt.107) at 18. (2) Daniel Okonkwo vs. Fred Ogbugu (1996) 5 NWLR (Pt.449) at 420 and others considered by the trial Judge. Those cases are peculiarly adapted to the torts of false imprisonment and malicious prosecution which torts are somewhat different from the facts of this case.

For example in Owomero vs. Flour Mills (Nig.) Ltd (1995) 9 NWLR 622 at 630-691 it was there held that:
On Duty on plaintiff in action for malicious prosecution to succeed in an allegation of malicious prosecution, the plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against the plaintiff. The expression ?setting the law in motion? against the plaintiff involves such manifest acts directly or circumstantially which vested with prosecution to undertake the act of prosecution. It connotes some element of prejudice or bias that actuated the defendant to do what he did.

(Mandilas & Karaberis Ltd. vs. Apena (1969) NMLR 199 referred to) Pp. 630 ? 631. Paras H-B).

In Okonkwo Vs. Ogbogu supra it was held following Mandillas & Karaberis Ltd vs. Apena (1969) NMLR 199 that ?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 in motion against him?.

In this case, the prosecution was not conclusive as it was terminated midway and the evidence of detention was not also conclusive.

What the trial Judge found in this case, is that the appellant was using or employing legal process for a purpose other than what it was properly intended – in this case to suppress, intimidate and eventually oust a rival business or trade competitor. Given the fact of this case, there must be a different but analogous tort to cover this new phenomena and the law is not without a remedy.

It is the tort of “Abuse of Process? Street in the Law of torts defines Abuse of process as – “It is a tort to use Legal process in its proper form in order to accomplish a purpose other than that for which it was designed and

thereby cause damage.?
The beauty of this tort in the circumstances of this case is that in this head of tort, the need not prove want of reasonable and probable cause nor need the proceedings have, terminated in his favour. The plaintiff need prove that defendant has used the process for some improper purpose. See STREET ON TORTS 6TH edition 400. See also Grainger vs. Hill (1834) 4 Bing NC 212 Gibbs vs. Rike (1842) 9 M & W 351.
The cases show that this apparently novel tort is indeed of antique origin dating back to the fountains of Pristine common Law. In Clerk & Lindsell 17th Edition Common Law Library Number 3 at Para 15 ? 50. The tort was described as Vexatious use of process where the following Learned Commentary was proclaimed and which I with respect reproduce.
Vexatious use of process: It has been held that a process in itself perfectly well founded and proper may amount to a legal wrong if vexatiously and unnecessarily repeated. In Heywood v. Collinge, the defendant caused the plaintiff to be arrested (before arrest on mesne process was abolished) in an action commenced in the Exchequer; he did not proceed with that

action and the plaintiff was consequently discharged. He then commenced fresh proceedings in the Queen’s Bench in respect of the sane cause of action, and again arrested the plaintiff. Under these circumstances, the Court decided that an action might lie in respect of the second arrest without inquiring into the result of the proceedings.
“If an action is not sustainable under such circumstances, we must be prepared to hold that the process of the Court may be abused by a plaintiff for purposes however wanton or malicious. We may suppose the case of a party harassing the defendant under the forms of law by maliciously suing out three writs for the same cause on the same day and successively arresting the defendant on all three of them. In such a case the principle of the law allows an action, though in form it may have some novelty.?
So in the case of Waterer vs. Freeman? an action was held to lie against a judgment creditor who, pending an execution, unnecessarily and maliciously seizes his debtor?s goods under second a writ.
This is the tort Abuse of Process or Vexatious use of process is the tort that admirably fit into the

facts ably elicited by the trial Judge.

Concerning Exhibit C, the letter to the police by which appellant alleged that the respondents burgled his shop and for which respondents were arrested and which again the appellant reneged in prosecuting again show Vexatious use of Process, Reading Exhibit C, one gets the impression of a neighbor actuated by hatred and malice who wrote to the police that he suspected the respondent of burglary because they pointed at his adjoining shop and had earlier threatened to undo or even kill him with the use of charms.

Evidence was called to show that people heard about the content of Exhibit C and shunned and avoided the respondent.

In a claim for defamation, qualified privilege is a defence but this defence will not avail if there is evidence of malice.
In a situation where the defendant does not believe in the truth of his statement” qualified privilege cannot avail Clerk vs. Molyneux (1877) 3 QBD 237 at 247.

It is for this reason that the trial Judge thoughtfully upheld the claim of libel occasioned by Exhibit C notwithstanding the apparent privilege occasion of its making to the police.
?
I have

had occasion to comment on the impropriety of not relating issues to grounds of appeal and arguing an appeal directly out of grounds of appeal. However an appeal is a complaint against a judgment or decision and if the complaint can be deciphered somehow, it is my view that it could be entertained notwithstanding.

In all, the appeal in its entirety is devoid of merit and is dismissed. There shall be cost of N50,000.00 to the respondents.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I agree.

HARUNA SIMON TSAMMANI, J.C.A.: Having studied the record of appeal, and read the judgment delivered by my learned brother, I am also of the view that this appeal lacks merit. The judgment of the Court below, delivered on the 29th day of July, 1999 is hereby affirmed.
?
I abide by the order on cost.

Appearances

Josiah Otameh, Esq.For Appellant

AND

Tunde Ologunde, Esq.For Respondent