Does Tendering Of Judgment In Favor Of An Accused Person Prove Malicious Prosecution?
CASE TITLE: ATAGBOR & ANOR v. NDIFON & ORS (2023) LPELR-59908(CA)
JUDGMENT DATE: 20TH FEBRUARY, 2023
JUSTICES: RAPHAEL CHIKWE AGBO, JCA
OYEBISI FOLAYEMI OMOLEYE, JCA
Log in to primsol.lawpavilion.com and enjoy the best E-journals, textbooks, and many more
To subscribe to Primsol, go to store.lawpavilion.com.
BALKISU BELLO ALIYU, JCA
COURT DIVISION: CALABAR
PRACTICE AREA: TORT
The Appellant’s suit as stated by the 9th Respondent is that the 1st Appellant and the 1st Respondent contested for the traditional stool of Nsan Village of Akankpa LGA of Cross River State. The 1st Appellant lost to the 1st Respondent. Afterwards, in April 2006, the 1st Respondent was invited for presentation to the Traditional Rulers Council of Akamkpa Local Government Area of Cross River State. On the date of the event, the Appellants and their supporters without proof of invitation found their way to the venue of 1st Respondent’s presentation. The Appellants were arrested by the officers of the 9th Respondent on reasonable suspicion of causing of breach of peace but were later released.
In May 2006, the Appellants through their solicitors wrote petition to the police against the 1st to 8th Respondents alleging that these Respondents caused the disappearance and possible elimination of one Nsikak Umoh of Nsan Village. On the petition of the Appellant, the police arrested the 1st to 8th Respondents and took their statements under caution. The 9th Respondent’s officers found that the petition written by the Appellants was false, and this prompted the officers of the 9th Respondent to file charge for giving false information to the Police against the Appellants and arraigned them before the Chief Magistrate Court Akamkpa. They were convicted of the offence and sentenced to various terms of imprisonment. They appealed against their conviction to the High Court and their appeal was allowed, and the judgment of the Chief Magistrate was set aside, and the High Court acquitted and discharged the Appellants of the offence of giving false information to the 9th Respondent.
Upon the success of their appeal, the Appellants filed the suit leading to this appeal at the trial Court alleging unlawful arrest, detention and malicious prosecution against the Respondents. The 1st – 8th Respondents counter-claimed against the Appellants. At the end of the trial, the learned trial Judge dismissed the Appellants’ case for lack of proof, and similarly dismissed the counter-claim of the 1st to 8th Respondents. Dissatisfied, the Appellants appealed.
The appeal was determined upon consideration of the issues thus:
- Whether the trial Court was right to have entered judgment 30 days after the 90 days period stipulated by the Constitution.
- Whether it was correct or appropriate for the trial Court to sit as an appellate judge over the decision of a Court of co-ordinate jurisdiction as though sitting on appeal on the same, ignoring his learned brother’s judgment delivered on the same issue or subject matter, same not being appealed against.
- Whether the trial Judge was right when he submitted that the arrests, detention and malicious prosecution of the Appellants in April, 2006 by the 9th Respondent was lawful, with the excuse that the 9th Respondent acted upon reasonable suspicion.
- Whether taking into consideration all the facts of this case, all the exhibits tendered and relied upon by the Appellants at the lower Court, the trial judge was right to have refused all the claims of the Appellants when he submitted that the prosecution of the Appellants at the Magistrate Court for giving false information to the police was not maliciously instigated by the 1st to 8th Respondents, who set the law in motion against the Appellants.
The Appellants’ learned counsel referred to the circumstances of the arrest of the Appellants at the premises of the L.G. council, the venue of the presentation of 1st Respondent and submitted that there was nothing in the evidence of the 1st to 9th Respondents showing that while arresting the Appellants or even after the arrest that they searched them and found anything incriminating on them to support a reasonable suspicion. They were respected elderly men who went to the Council venue to witness an occasion. The Appellants insisted that their arrest, detention and prosecution by the 9th Respondent was malicious because there was nothing reasonable about their suspicion from the facts of the case.
It was submitted that the finding of the trial Court in the record of appeal to the effect that the Appellant’s failure to apologize resulted in their prosecution makes “failure to apologize” a criminal offence which is unknown to our criminal justice system. To support this argument, the Appellants relied on Section 36(12) of the Constitution which provides that no person shall be convicted of a criminal offence unless that offence is clearly defined and the penalty thereof is prescribed in a written law.
The Appellants further argued that it was in evidence that the 1st to 8th Respondents admitted in their oral evidence and their statements to the police that they made allegations to the police on false information and equally testified against the Appellants until the Appellants were convicted and jailed. In fact, the learned trial Judge referred to the case of BAYOL VS. AHAMBA (1999) 7 S.C. (PT. 1) 92 to the effect that to successfully prosecute offence of malicious prosecution, it must be proved that the defendant set the law in motion against the Plaintiff and has also actively instigated the actual prosecution. That considering the facts of this case, the holding of the trial Court that it was not proved that the prosecution of the Appellants at the magistrate Court was malicious was in error since even the Respondents admitted their active participation and instigation of the prosecution of the Appellants.
In response, the Respondent’s learned counsel submitted that the Appellants did not deny the fact that their arrest and was connected to their visit to the L.G. council hall on the date of presentation of the 1st Respondent as pleaded by the 1st to 8th Respondents before the trial Court in this case. It was submitted that the 1st to 8th Respondents had nothing to do with that arrest because it was carried out by the 9th Respondent’s officers. That in any event, an arrest can only be considered wrongful if there is no legal foundation to support it. It was submitted that the evidence on record does not support the contention of the Appellants that their arrest was unlawful. That the 1st to 8th Respondents were not responsible for the arrest of the Appellants neither did they prosecute them. That in the circumstances of this case, the learned trial Judge was right to hold that the arrest of the Appellants was lawful because the police have the power to make an arrest on reasonable suspicion.
The learned counsel for the 1st to 8th Respondents answered in the affirmative and submitted that the learned trial Judge was right to hold that the prosecution of the Appellants was not maliciously instigated by the 1st to 8th Respondents. She therefore urged the Court to so hold and dismiss this appeal.
In conclusion, the Court of Appeal dismissed the appeal.
TORT – MALICIOUS PROSECUTION: Ingredients that must be established in order for a plaintiff to succeed in an action for malicious prosecution; whether tendering of judgment discharging and acquitting a person of a criminal charge is conclusive proof of tort of malicious prosecution
“Firstly, as highlighted earlier, the case before the trial Court leading to this appeal is a tortious claim of damages for malicious arrest and prosecution against the Respondents. The judgment of the High Court in its appellate jurisdiction in Appeal No: HK/2CA/2010 was a criminal proceeding, showing that the Appellants were discharged and acquitted of the charge of giving false information to the police. These are two different proceedings that can even be conducted simultaneously, because they are independent proceedings.
The Appellants in this issue argued under the erroneous assumption, that their acquittal of the charge of giving false information to the police automatically meant their prosecution was malicious. That is why they accused the learned trial judge of “ignoring his learned brothers’ judgment delivered on the same issue or subject matter same not being appealed against.” They wrongly contended that the trial Judge ought to have accepted and relied on the judgment in HK/2CA/2010 (Exhibit 1) as proof of the Appellants’ suit and declare their arrest and prosecution as malicious. This is not the correct position of the law, because Section 62 of the Evidence Act, 2011 clearly provides that:
“Judgments, orders or decrees, other than those mentioned in Sections 59, 60 and 61 are inadmissible unless existence of such judgment, order or decree is a fact in issue or is admissible under some other provision of this or other Act.”
See also the case of OWONIKOKO & ORS VS. AROWOSAIYE (1997) LPELR-6266 (CA), per MOHAMMED, JCA (as he then was), holding that:
“It is now settled that a judgment of Court of competent jurisdiction can be relied upon in a subsequent litigation as per rem judicatam or to found issue estoppel or cause of action estoppel or estoppel by standing by. Our law in this respect requires that both the parties to an action and the Court must know for which purpose proceedings and previous judgments pleaded and tendered in evidence are meant to serve.”
As indicated earlier, the claims of the Appellants in the suit leading to this appeal is for declaration that their arrest and prosecution for giving false information to the police was malicious and instigated by the 1st to 8th Respondents. They tendered the judgment of the High Court on appeal in HK/2CA/2010 and it was admitted as evidence along with other documents for the Appellants in proof of their claims for declarations. That is the only purpose for which the trial Court was supposed to use it to determine the issues raised before him, i.e. there was a prosecution of the Appellants which was upturned on appeal and nothing more. This is because the trial Judge was required to confine his enquiry entirely to only the determination of the issues that the parties properly raised and canvassed before him, in this case, the tort of malicious prosecution.
The Appellants being the plaintiffs seeking the declaration that they were maliciously prosecuted had the burden to establish the following:
“1. The defendants set the law in motion against them as the plaintiffs not just by merely making a report to the police but they actively instigated the police to prosecute them.
- Consequent upon the prosecution, the plaintiffs were discharged, i.e., the prosecution ended in their favour.
- The prosecution was without reasonable or probable cause. So where the report made against the plaintiffs leading to the prosecution was found to be false, it is a clear evidence of lack of reasonable or probable cause to make the report and;
- That the prosecution was actuated by malice by
the defendant against the plaintiff. In this regard, malice means absence of honest belief in the charge presented against the plaintiff.
See the case of BAYOL VS. AHEMBA (1999) 10 NWLR (PT. 623) 381 (SC).
The purpose for which the judgment of the High Court in HK/2CA/2010 was to prove that the prosecution which the Appellants claimed to be malicious ended in their favor which is ingredient 2 supra. There are still other ingredients for the Appellants to establish, especially ingredient number 4. It is for this reason that I am in total agreement with the learned trial Judge’s holding quoted by the Appellants to the effect that the mere fact that the decision of the Chief Magistrate was upturned is not conclusive of the fact that the prosecution before the Magistrate Court was malicious. That is the correct position of the law and His Lordship cannot be faulted on his finding. I resolve issue two against the Appellants.” Per ALIYU, J.C.A.