Essentials of Malicious Prosecution

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Preamble

In the words of ELECHI, J.C.A. while delivering the leading judgment in this extant appeal, “for a claimant to succeed in an action for malicious prosecution, he must plead and prove with credible and cogent evidence the following ingredients;

(a) That the defendant put the machinery of prosecution on motion.

(b) That the result of the criminal action is a favour of the accused.

(c) That the defendant has no reasonable cause to prosecute the accused.

(d) That the prosecution is as a result of malice.

… failure to prove any one of the above ingredients, his claim will fail and be dismissed.”

What then is malicious prosecution? Malicious prosecution, as the name implies, arises where the defendant maliciously, and without reasonable and probable cause, initiates a criminal proceedings against a plaintiff, which proceedings later ends in favour of the plaintiff.

The Honourable Justice, ELECHI, J.C.A., explained that “For the purposes of the claim for malicious prosecution, to be liable, a defendant must be actively instrumental in setting the law in motion for the prosecution of plaintiff.”

In clarifying what amounts to malicious prosecution, he said “Within the context[of malicious prosecution], to prosecute is to deliberately and actively initiate or instigate by way of a direct appeal to or pressure on a person with judicial authority with regard to a complaint or report made that the plaintiff be charged and put to trial.”

Consequently, “for a defendant to be shown to have set the criminal law in motion against a plaintiff, it must be proved by evidence that the defendant had in any manner directly influenced the police in the decision to charge the plaintiff to Court on the complaint made.” per ELECHI, J.C.A.

Distinguishing between lodging a formal complaint to the police and malicious prosecution, the learned Justice said “…an action for malicious prosecution will not lie against a person who merely gave an information to the police by a report or complaint of the commission of an offence which led the police on their own initiative to arrest, and eventually charge another to Court after their investigation of the complaint.” He went further to say “ If the evidence did not show that the defendant influenced the police in any way in the decision to prosecute a plaintiff, then the prosecution cannot and will not properly be attributable to the defendant, but to the police.”

FACTS

The case of the appellant at the trial Court was that the defendant willfully and unlawfully sprayed chemical on his crops which resulted in the damage to his pineapple and other crops.

On the other hand, the respondent’s position was that sometimes ago, the appellant reported him to people and police that he trespassed on his (the appellant) land. That the appellant made false allegation against him that he destroyed his pineapple which led to his arrest and that he was subsequently charged to Court for malicious damages.

That it was the appellant who instigated the police to arraign him in Court for malicious damage and that the action of the Appellant was actuated by malice. He further argued that at the end of the trial he was discharged and acquitted.

The trial Court, in his judgment discountenanced with the processes filed by the appellant (as defendant) while granting the relief of the respondent (then plaintiff) in his claim.

The Appellant was dissatisfied and has lodged this appeal against the judgment of the learned trial judge.

ISSUE(S) FOR DETERMINATION

The issues raised for the just determination of this appeal were:

(1) Whether the trial Court was right in holding that the appellant has no defence when it closed its eyes to the statement of defence filed by the appellant on 23rd March, 2012 and amended statement of defence and counter-claim filed on 21st May, 2013- GROUND 4 AND 6.

(2) Whether the trial Court was right in admitting and relying on Exhibit P2, the record of proceedings in a criminal matter when same is inherently inadmissible in civil matter? – GROUND 5

(3) Whether in view of the evidence before the Court, the ingredients of malicious prosecution have been established by the Respondent to entitle him to judgment- GROUNDS 1 and 7.

(4) Whether the Respondent has any evidence before the Court upon which the Court could grant the reliefs of the respondent- GROUND 3

(5) Whether the entire decision of the lower Court actually contain reason or reasons sufficient enough to enter judgment in favour of the Respondent as the entire judgment dated 3rd December, 2014 lacked reasons before arriving at same. GROUND 2.

HELD

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The Court of Appeal unanimously agreed that there was merit in the appeal and therefore allowed same.

Consequently, the judgment of the lower Court in suit No: HID/18/2011 between ADEJOLA ADEPOJU ADEBOWALE AND MR DUROJAIYE SEGUN ROBINSON delivered by Hon. Justice Adewale Kayode Fowe on the 3rd December, 2014 was set-aside. Further, for failure to prove the tort of malicious prosecution against the Appellant in accordance with established principles of law at the lower Court, the claim of the Respondent at the lower Court was also dismissed.

Cost of N50, 000.00 was awarded in favour of the Appellant payable by the Respondent.

RATIO DECIDENDI

TORT – MALICIOUS PROSECUTION: Ingredients that must be established in order for a plaintiff to succeed in an action for malicious prosecution

“For a claimant to succeed in an action for malicious prosecution, he must plead and prove with credible and cogent evidence the following ingredients;

(a) That the defendant put the machinery of prosecution on motion.

(b) That the result of the criminal action is a favour of the accused.

(c) That the defendant has no reasonable cause to prosecute the accused.

(d) That the prosecution is as a result of malice.

See the case of Balogun V. Amubikahun (1989) 3 NWLR (Pt. 107) 18.

The Respondent must prove all the above ingredients concurrently in order to establish a case of malicious prosecution and failure to prove any one of the above ingredients, his claim will fail and be dismissed.

The ingredients for the tort of malicious prosecution must be proved.”Per ELECHI, J.C.A. (Pp. 47-48, Paras. F-D)

TORT – MALICIOUS PROSECUTION: When will a defendant be liable in a claim for malicious prosecution

“For the purposes of the claim for malicious prosecution, to be liable, a defendant must be actively instrumental in setting the law in motion for the prosecution of plaintiff. Within the context, to prosecute is to deliberately and actively initiate or instigate by way of a direct appeal to or pressure on a person with judicial authority with regard to a complaint or report made that the plaintiff be charged and put to trial. Thus for a defendant to be shown to have set the criminal law in motion against a plaintiff, it must be proved by evidence that the defendant had in any manner directly influenced the police in the decision to charge the plaintiff to Court on the complaint made.

Accordingly, an action for malicious prosecution will not lie against a person who merely gave an information to the police by a report or complaint of the commission of an offence which led the police on their own initiative to arrest, and eventually charge another to Court after their investigation of the complaint. The position is also the same in respect of a report or complaint made to the police where a particular person is named (as in this present appeal) as the person found spraying herbicides on farm crops, and the person is subsequently arrested, charged and prosecuted by the police on their own volition. In all these situation, a defendant can not be said to have been instrumental or actively set the law in motion for the prosecution because the police had the option and liberty to deal with the matter with the outcome of their investigations of the complaint made to them. If the evidence did not show that the defendant influenced the police in any way in the decision to prosecute a plaintiff, then the prosecution cannot and will not properly be attributable to the defendant, but to the police. See BALOGUN V. AMUBIKAHUN (SUPRA), NWADINOBI V. BOTU (2000) 9 NWLR (PT 672) 220, SPDC V. OLAREWAJU (2) 16 NWLR (PT 792) 38, ADEYEMO V. AKINTOLA (04) 12 NWLR (PT 887) 390, OJO V. LASISI (SUPRA)

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In this appeal, the evidence of the Appellant summarized earlier, did not show or establish that the appellant did anything to influence the prosecution of the respondent apart from making a report or complaint to the police that the respondent sprayed herbicides on his farm and destroyed same as it was not an accusation as shown by DW1 & DW2. In order words, the evidence of the respondent did not show that apart from making a report or complaint to the police about the destruction of his farm, the appellant influenced the police in any other way or manner in the decision to charge him to Court over the complaint. As a result, there is no evidence on the basis of which the appellant can properly and reasonably be found to have prosecuted the respondent in respect of the complaint.

My finding on this ingredient of the offence of malicious prosecution is that it was not proved in evidence on the balance of probabilities by the evidence of the respondent. This ingredient of the offence of malicious prosecution appears to be the foundation on which the claim for malicious prosecution could be built and without which it will automatically collapse.

For the avoidance of doubt, my decision is that from or on the available evidence before the Court below, a case of malicious prosecution of the Respondent was not made out against the Appellant.”Per ELECHI, J.C.A. (Pp. 50-53, Paras. D-C)

EVIDENCE – WRITTEN STATEMENT ON OATH: Effect of a written statement on oath which has not been formally adopted by a prospective or potential witness

“It is not in doubt that the Respondents statements on oath were filed in the registry of this Court on the 18th November, 2011. Upon all that, were the statements respectively adopted by the witness in open Court? In fact, the statements on oath ought to have been adopted first before admitting them as Exhibits. Having done it the other way round, there is still the need for them to be adopted before they can become the evidence on oath of the witnesses before the Court. In AREGBESOLA V. OYINLOLA (2011) 9 NWLR (PT 1253) 562 at 563 where the Court held:

“Once the statement of a witness once adopted becomes his evidence-in-Chief and the Court is under a duty to evaluate same and merely to treat same as mere allegation requiring additional proof as done by the trial in this case.”

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The argument and submission of the Respondent that both the Respondent and other witnesses were sworn on Holy Bible and subsequently cross-examined by the Appellant while in the witness box is enough to off-set any defect does not hold water. This is not an issue that borders on technicality as the learned Respondent counsel would like the Court to believe.”Per ELECHI, J.C.A. (Pp. 54-55, Paras. C-C) – read in context

EVIDENCE – EVALUATION OF EVIDENCE: Principles that the court must have regard to in the process of evaluation of evidence

“Learned Appellant counsel submitted that the judgment of the lower Court is devoid of reasons and that the Court should set it aside and allow the appeal.

On the other hand, learned Respondent Counsel submitted that if the decision is right and only the reasons are wrong, an appellate Court will not interfere with the decision. What matters is that if the correct conclusion is reached and not sufficient or wrong reason. See EKPO V. STATE (2003) 17 NWLR (PT. 849) 392, ABIYE V. OFILI (1986) 1 NWLR (PT 15) 134.It is true that what matters is whether the conclusion reached is right and not the reasons for attaining the conclusion. However, it is to be noted that evaluation of evidence demands that the evidence adduced by both parties be assessed and weighed so as to give value or quality to it.

Hence the mere recital of the evidence as I stated before without more is inadequate and not in tandem with assessment and evaluation. Expressions such as ‘I believe’, ‘I do not believe’ or that ‘a witness of truth’ without record showing how the Court arrived at its conclusion and preferring one piece of evidence to the other will definitely fall short of the required procedural standard and requirement in this regard. See ALAKE V. STATE (1992) 9 NWLR (PT. 265) 260.”Per ELECHI, J.C.A. (Pp. 56-57, Paras. B-B)

PRACTICE AND PROCEDURE – RECORD OF COURT PROCEEDINGS: Whether record of proceedings in a criminal trial can be admitted in evidence in a civil proceeding

“The Courts have consistency held that the record of proceedings in a criminal trial is not admissible in civil matters. In Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307 at 353-354 the Apex Court held that:

“Record of proceedings in a criminal proceeding is inadmissible as evidence in a civil proceeding. In the instant case, the admission of the record of criminal case in which the 1st respondent was convicted was wrong notwithstanding that there was no objection to is admission in evidence.”

Also, in the case of ALI V. UGWU (2012) ALL FWLR (Pt 619) 1078 @ 1111, the Court held that:

“Record of proceedings in a criminal proceeding is inadmissible as evidence in a civil proceeding.”

In view of all the above defects inherent on Exhibit p2, it is apparent that Exhibit P2 is not admissible in law, and as a result it can not be the basis upon which the learned trial Court could rely in reaching his decision when he held thus:

“I hold that the defendant has maliciously prosecuted the claimant. See Exhibit P2- which is MID/16C/2010 Commissioner of Police v. Durojaiye Segun Robinson wherein the accused was discharged and acquitted, Exhibit P1 and Exhibit D3.”

The learned trial judge was in grave error of law when he admitted and relied on Exhibit P2 which is a record of proceedings in a criminal matter and an inadmissible document in reaching a decision in this matter.”Per ELECHI, J.C.A. (Pp. 46-47, Paras. C-D)

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