OKOLO & ANOR v. OBI

CITATION: (2017) LPELR-44039(CA)

In the Court of AppealIn the Makurdi Judicial Division

Holden at Makurdi

ON WEDNESDAY, 24TH MAY, 2017Suit No: CA/MK/9/1998

Before Their Lordships:

JUMMAI HANNATU SANKEY Justice, Court of AppealONYEKACHI AJA OTISI Justice, Court of AppealJOSEPH EYO EKANEM Justice, Court of Appeal

Between1. JONATHAN OKOLO2. CYPRIAN AMADI - Appellant(s)

AndUJU OBI - Respondent(s)

RATIO DECIDENDI1. APPEAL - BRIEF OF ARGUMENT: Effect of failure to advance argument in respect of an issue or preliminary objection in a brief

"The parties exchanged Briefs of Argument. The Amended Appellants' Brief, which was filed on 1/7/2003, was adopted by G. Ofodile Okafor, Esq. SAN on 6/3/2017. The Respondent's Brief, in which a Preliminary Objection wasraised, was filed on 6/2/2006 but deemed properly filed and served on 7/2/2006. The Appellant filed a Reply Brief on 20/2/2006. The Respondent was served through her Counsel, R.S.M. Adebayo, Esq., with Hearing Notice on2/3/2017 for the hearing of the appeal. At the hearing of the appeal on 6/3/2017, the Respondent and Counsel were absent, and there was no explanation for their absence before the Court. The Respondent's Brief was,nevertheless, deemed argued pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules, 2016.The Respondent did not appear to argue the Preliminary Objection raised in the Respondent's Brief. In consequence, Learned Senior Counsel for the Appellant urged the Court to strike out the Preliminary Objection. In a similarsituation, the Supreme Court, per A. M. Muktar, JSC (as he then was) in Carew v. Oguntokun (2011) LPELR-9355(SC) said:"It is a cardinal principle of law that any process that is filed in Court, and which the party who has filed it has not deemed it necessary to pursue, either by taking further steps or doing certain things like moving the Court, incompliance with requirements of the law, as in this case, the Court will be correct to assume that the process has been abandoned by the party, and so deem the said process as duly abandoned. (In this case the preliminaryobjection) ...the appellant having abandoned her preliminary objection in the Court of Appeal cannot complain that the Court refused to pronounce on it."Contributing to the decision of the Supreme Court in the earlier case of Lagga v. Sarhuna (2008) 6-7 S.C. (Pt. 1) 101, (2008) LPELR-1740(SC), I. F. Ogbuagu, JSC said:"... a notice, of preliminary objection, can be given in the respondent's brief. But a party filing it in the brief, must ask the Court for leave to move the notice, before the oral hearing of the appeal commences otherwise, it will bedeemed to have been waived and therefore, abandoned."See also: Oforkire v. Maduike (2009) 1 SCNJ 440; Opobiyi v. Muniru (2011) LPELR-8232(SC). In the instant appeal, notwithstanding the service of Hearing Notice for the hearing of this appeal, neither the Respondent nor her counselhas appeared to be heard in respect of the process filed. While, by virtue of Order 19 Rule 9(4) of the Court of Appeal Rules, 2016, this Court is empowered to deem the Respondent's Brief as duly argued, there is no such provisionregarding a preliminary objection. In this circumstance, I agree with learned senior counsel for the Appellant that the Preliminary Objection of the Respondent ought to be discountenanced as having been abandoned. Thepreliminary objection is accordingly hereby struck out." Per OTISI, J.C.A. (Pp. 4-6, Paras. B-F) - read in context

2. APPEAL - INTERFERENCE WITH FINDING(S) OF FACT(S): Circumstances in which an appellate court will interfere with the findings of facts made by a lower court"In examining the evidence adduced before the trial Court, it is important to bear in mind that an appellate Court will not ordinarily substitute its own view of the evidence for that of the learned trial Judge except in prescribedcircumstances. An appellate Court may, in the interest of justice set aside findings of fact made by a trial Court where such findings cannot be regarded as resulting from the evidence or the findings are not based on the fact of thetrial judge having seen and heard the witnesses or from conclusions from demeanour in the witness box;Aigbotosho v. Governor, Oyo State (1992) LPELR-2570(SC); Olabanji v. Omokewu (1992) LPELR-2541(SC). In his commentsregarding the issue of whether and when an appellate Court should reverse the findings of a trial Court, Oputa, JSC, in Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301, (1988) LPELR-720 (SC), restated some guiding principles asfollows:"1. Ordinarily it is not the function of an Appellate Court to disturb the findings of fact of the trial Court - the Court that saw the witnesses, heard them testify, and believed one side while disbelieving the other. This is the firstprinciple - the general principle...2. Where the trial Court gave reasons for making the findings it made, an Appellate Court will be fully in order if it proceeds to look at those reasons and if the reasons are not satisfactory, as in the case on appeal, the AppellateCourt will come to the conclusion (as was done in this case) that any advantage enjoyed by the trial Court by reason of having seen and heard the witnesses was not and could not be sufficient to explain or/and justify the trialCourt's conclusions. An appellate Court has jurisdiction to look at the evidence on record to see whether they justify the conclusions of the learned trial judge...3. Where the real issue does not revolve around the credibility of the witnesses who testified, as much as on the inferences to be drawn from proved or admitted facts, or facts as found by the trial Court, an appellate Court has fullliberty to draw its own inferences and should not be deterred from that duty to thus make up its own mind, not disregarding, of course, the judgment appealed against but giving it, its due weight...4. Where the trial judge proceeded on a wrong assumption as to the onus of proofthis misapprehension and wrong assumption may affect the learned trial judge's views on the evidence and on his conclusions. There an appellate Court will be perfectly justified to intervene.5. Where the trial Court did not consider the entire evidence there, its conclusions are bound to be faulty and erroneous and an appellate Court will intervene to correct such error..."Per OTISI, J.C.A. (Pp. 10-12, Paras. A-B) - read in context

(201

7) LP

ELR-44

039(

CA)

3. TORT - MALICIOUS PROSECUTION: Circumstances where a defendant would be liable for malicious prosecution"When a report is made to the police against a plaintiff, and the defendant instigates his arrest and or detention, a complaint of false imprisonment could arise. When the report or charge, as instigated by a defendant, is carried onbefore a judicial officer, a complaint of malicious prosecution may arise; UAC (Nig.) Plc v. Sobodu (2007) LPELR-7740 (CA). Thus, a defendant who maliciously makes a false statement against a plaintiff and causes a judicial act, likethe issue of a summons or warrant of arrest, to the prejudice of the plaintiff, will be liable for malicious prosecution even though he may not technically have been the prosecutor in the strict sense; Agi v. First City Monument BankPlc (2013) LPELR-20708(CA). The elements required to prove the complaint must be evident in the evidence adduced before the trial Court."

Per OTISI, J.C.A. (P. 9, Paras. B-F) - read in context

(201

7) LP

ELR-44

039(

CA)

4. TORT - FALSE IMPRISONMENT/ MALICIOUS PROSECUTION: Essential elements to be proved in the torts of false imprisonment and malicious prosecution"I shall now examine the said evidence against the elements required to be proved by the Respondent as plaintiff.1. That the defendant set in motion against the plaintiff, the law leading to a criminal charge:On what would amount to setting the law in motion by a defendant against a plaintiff, the Appellant relied on Balogun v. Amubikahun (supra) at page 30; Barau v. Chaba (supra) at page 371. In order to succeed in an action forfalse imprisonment, the plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against him. The case of Onyedinma v. Nnite (1997) 3 NWLR (Pt. 493) 33 at 346 was cited and reliedon. It must be shown that the defendant not only made a report to the police, leaving it to the discretion of the police to do its work of investigation and prosecution, but actually actively instigated the actual prosecution of theplaintiff. It is well settled that merely lodging a criminal report to the police does not make the defendant actively instrumental in setting the law in motion against the plaintiff; Balogun v. Amubikahun (sapra); Okonkwo v. Ogbogu(1996) LPELR-2486(SC); Bayol v. Ahemba (supra). Simply passing information to the police or mere complaint to the police, which leads the police to arrest a suspect on their initiative, will not make a citizen liable for falseimprisonment; Mandilas Karaberis Ltd v. Apena (1969) NMLR 199; Onyedinma v. Nnite (supra); Isheno v. Julius Berger Nig. Plc (2008) 2-3 S.C. (Pt. 11) 78; Okeke v. Igboeri (2010) LPELR-4712(CA). See also Nwangwu & Anor v. Duru& Anor (2002) 2 NWLR (Pt. 751) 265 where this Court, per Chukwuma-Eneh, JCA (as he then was) held: "It is settled law that where an individual has lodged the facts of his complaints to the police as in this case by way of petition,and the police have thereupon on their own proceeded to carry out arrests and detention, then the act of imprisonment is that of the police. See Sewell v. National Telephone Co. (1907) 1 K.B. 557."In the absence of established proof that it was the Appellants who were actively instrumental in setting the law in motion against the Respondent, this ground would have failed to meet the required test. In paragraph 4 of theAmended Statement of Claim at page 37 of the Record of Appeal, the Respondent had averred:On 7.6.93, the defendants actuated by malice and deep-seated sinister animosity, maliciously without probable belief in their action and not being parties affected in any with an alleged misdemeanor of the plaintiff decided tobecome busybodies, meddlesome by reporting an alleged offence committed against Chinwe Mba (Adult) to the State ZIIB Makurdi as the Complainants. Further alleged in paragraphs 5-7 thereof, page 37 of the Record of Appeal,was that the police based on the alleged malicious information, caused the arrest and subsequent arraignment of the Respondent. The Respondent who testified as PW1 in line with her pleadings, said in evidence in chief, page 50of the Record of Appeal:"On 7.6.93, the defendants reported me to police that I poured acid on one Chinwe Mba. The report covered my sister called Nbiru Obi. It was at central police Station Gboko that defendants reported us ..."She further testified, pages 52-53 of the Record of Appeal:"I quarreled with Chinwe Mba in 1992 Defendants brought the case against me in 1993... Our quarrel with Chinwe Mba in 1992 was settled by our families and the Igbo Community in 1992."Under cross examination, page 52 of the Record of Appeal PW1 now said:"The alleged acid attack was resolved at family level between Chinwe Mba's family and my family."

The evidence for the Appellants was rather different. Chinwe Mba testified as DW1. She testified that she was attacked with acid by the Respondent and Nkiru Obi. Her testimony in chief, page 55 of the Record of Appeal was that:"The next day, I reported the case to the Police at "A" Division Gboko.The police took me to hospital. The police got the plaintiff and Nkiru Obi arrested."Under cross examination, page 57 of the Record of Appeal, she reiterated:"I first reported the matter to the Police at 'A' Division Gboko on 3.8.93. (sic)"DW3 was a police corporal attached to "A" Division Gboko in the divisional crime branch office. He tendered as Exhibit H the police extract in connection with a case of conspiracy and causing grievous hurt reported by one ChinweMba against one Mrs. Nkiru Obi; page 59 of the Record of Appeal.The evidence of DW1, as pleaded, was after the acid attack, DW1 was hospitalized for a long time. In evidence in chief at page 56 of the Record of Appeal, DW1 further said that after she was discharged from hospital, upon theadvice of the hospital authorities, she went to her village to recuperate. She returned to Gboko in January 1993. She further testified:"Before I left for school, I told defendants to follow up the progress of the case with the police. Sometime in March, 1993, I got a letter from the defendants informing me that police had done nothing yet over the case. I repliedthem and told them to petition the police which they did."Under cross examination, page 56 of the Record of Appeal, DW1 said:"I did not give the defendants power of attorney to prosecute the case on my behalf. I gave the defendants the instruction in a letter to them that they should go on with the case for me." From the pleadings and evidence of theAppellants, it was DW1, the victim of the alleged acid attack, who reported the incident to the police herself on 3/8/1992, as confirmed by Exhibit H, the Police Extract. The police upon the report arrested and detained theRespondent and Nkiru Obi. When DW1 left Gboko, she requested the Appellants to follow up the progress of the complaint she made to the police. DW1 also caused the Appellants to act on her behalf by petitioning AssistantInspector-General of Police in-charge of Zone 4 Makurdi when the 'A' Division of the police in Gboko, before which the initial report was made, appeared tardy in its prosecution of the matter. From the evidence, the victim, DW1initiated the complaint to the police, the Appellants merely acted on her request, by following up on the case, including the act of writing a petition on her behalf. The police acted on the initial report, Exhibit H, and arrested anddetained the Respondent in 'A' Division of the police station, Gboko. The Respondent was on police bail when she was rearrested and moved toPolice Zone 4 Makurdi upon the petition written on the instructions of DW1. The learned trial Judge acknowledged that the two torts involved in this matter were false imprisonment and malicious prosecution. He furtheracknowledged, page 66 of the Record of Appeal:"It is common ground between the parties and I believe them that DW1 had accused the plaintiff and one Nkiru Obi of attacking her with acid in 1992. Plaintiff swore their two families and the Igbo Community in Gboko resolved thecase at home amicably. Defendants did not dislodge this assertion under cross examination. DW1 who was the victim of the alleged attack gave no evidence on the said assertion. In short no evidence came forth from defendants'side refuting the said assertion. I am satisfied with the unchallenged evidence of plaintiff that the alleged said attack incident was amicably settled at the domestic forum afore-sworn in her said evidence. To suggest as did theplaintiff that the matter did not reach the police does not impress me. Exhibit H, the extract from the police case diary convinces me that DW1 had reported the incident to them on 3.8.92. It seems certain to me thatthe peaceful settlement of the case came after the report to the police. It also seems certain to me that none of the parties put the police in the know of peaceful settlement in order to have Exhibit H closed by the police. Itremained a live matter before the 'A' Division of the police formation Gboko, albeit in abeyance, at the time the defendants petitioned the Assistant Inspector-General of Police in-charge of Zone 4 Makurdi." (Emphasis mine) Withrespect, the conclusions reached by the learned trial Judge are not easy to comprehend. In the first place, evidence regarding a peaceful settlement of the matter came only from the Respondent as PW1. As pointed out by theLearned Senior Counsel, there was no evidence adduced in proof of this assertion. In evidence in chief, PW1 said the quarrel was resolved by both families and by the Igbo Community. Under cross examination, she now said it wasresolved at family level by both families, that is to say, the Igbo Community was not involved. Nonetheless, no one came from the Igbo Community in Gboko or from the Respondent's family to confirm any such peaceful settlementtook place. Settlement of a dispute involves the two parties and perhaps, witnesses. No witness of the settlement testified. The victim, DW1, who ought to be part of the settlement did not testify of any such amicable resolution ofthe dispute. Rather the evidence of the Appellants was that DW1 maintained her complaint to the police directly and through the Appellants for the police investigation and action. Indeed, if there had actually been a peacefulsettlement, it was the Respondent who ought to have ensured the police were put in the picture. The trial Judge had concluded that:"It seems certain to me that the peaceful settlement of the case came after the report to the police. It also seems certain to me that none of the parties put the police in the know of peaceful settlement in order to have Exhibit Hclosed by the police."These conclusions in my respectful opinion can only be described as speculation and conjecture. The evidence adduced did not point in this direction at all. The learned trial Judge acknowledged that the complaint of DW1 remaineda live matter before the 'A' Division of the police formation Gboko, albeit in abeyance, at the time the defendants petitioned the Assistant Inspector-General of Police in-charge of Zone 4 Makurdi. The complaint that remained a livematter was the original complaint laid by DW1 in Exhibit H. There had been no closure of the case. The further conclusion that the Appellants' petition resuscitated or revived the case ought not stand.

The Respondent was required to prove her assertions. It is trite law that he who asserts must prove; Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412 S.C.; Ohochukwu v. AG, Rivers State & Ors (2012) LPELR-7849(SC). Aside from herbare assertion, the Respondent tendered no other evidence in proof. No duty lay on the Appellants to deny assertions or allegations which have not been proved. I agree with the Appellants that the conclusion of the learned trialJudge appeared to have placed the onus of proof on the Appellants and not on the Respondent as it ought to be. It must be emphasized, as is well settled, that the mere fact that a report was made to the police does not mean thatthe law has been set in motion against a suspect; Balogun v. Amubikahun (supra); Okonkwo v. Ogbogu (1996) LPELR-2486 (SC); Bayol v. Ahemba (supra). The evidence adduced showed that the police action against theRespondent was initiated by the report made to the police by DW1, evidenced by Exhibit H. This said report was still a live issue before the police, although the Respondent was on police bail. The Appellants merely acted on behalfof DW1 on her request that the police be petitioned on her behalf to take further action on her said live complaint. The initial decision to arrest and detain the Respondent, as well as the later decision to re-arrest and detain theRespondent, were taken by the police. The Appellants have not been shown to have actively encouraged or masterminded it. In my considered opinion, having regard to the evidence adduced, it was not proved that the Appellantsset the law in motion, leading to a criminal charge, against the Respondent. This ingredient of malicious prosecution and false imprisonment was therefore not proved.2. That the prosecution ended in the discharge and acquittal of the plaintiff;In this element of malicious prosecution, prosecution terminating in a defendant's favour does not mean that he has to be discharged on the merits. It sufficesif he is discharged or the Attorney General enters a nolle prosequi staying further proceedings, or where the plaintiff was acquitted of the charge in question but convicted of a lesser charge; Barau v. Chaba (supra); Agi v. First CityMonument Bank Plc (supra). The pleadings and unchallenged evidence before the trial lower Court were that in the course of the trial of the Respondent before the Upper Area Court, Makurdi, the Respondent's Counsel took apreliminary objection as to the issue of locus standi of the Appellants to make a report to the police on behalf of Chinwe Mba, who was an adult at the material time. The said trial Upper Area Court upheld the objection and struckout the First Information Report. The said ruling was not appealed against. The prosecution at the Upper Area Court fell flat on its face on account of this ruling as the Respondent was discharged. Although the evidence before thelower Court was that the prosecution of the Respondent was on going in other related proceedings, the matter for which the instant suit was filed arose from the said ruling delivered on 23/9/1993, by the upper Area Court, in whichthe Appellant wasdischarged. The said prosecution therefore ended in the discharge of the Respondent.3. That the prosecution of the plaintiff was completely without reasonable and probable cause;In determining whether the prosecution of a plaintiff was reasonable and with probable cause, the test to be applied is an objective one. In Oteri v. Okorodudu & Anor (1970) All NLR 199, (1970) LPELR-2824 (SC), the Supreme Courtexpounded:"In our view the test to be applied, with the onus of proof on the defendant seeking to justify his conduct, was laid down in 1838 by Tindal, C.J. in Allen v. Wright 8 Car. and P. 522 where he said that it must be that of a reasonableperson acting without passion and prejudice. The matter must be looked at objectively, and in the light of the facts known to the defendant at the time, not on subsequent facts that may come to light...We would also refer to the judgment of Diplock, L.J. (as he then was) in Dallison v. Caffiey (1965) 1 Q.B. 348 as to the question of reasonableness in a case involving both false imprisonment and malicious prosecution where atpage 371 he said:- "One word about the requirement that the arrestor or prosecutor should act honestly as well as reasonable. In this context it means no more than that he himself at the time believed that there was reasonablyand probable cause, in the sense that I have defined it above, for the arrest or for the prosecution, as the case may be. The test whether there was reasonable and probable cause for the arrest or prosecution is an objective one,namely, whether a reasonable man, assumed to know the law and possessed of the information which in fact was possessed by the defendant, would believe that there was reasonable and probable cause. Where that test issatisfied, the onus lies on the person who has been arrested or prosecuted to establish that his arrestor or prosecutor did not in fact believe what ex hypothesis he would have believed had he been reasonable (see Herniman v.Smith (1938) A.C. 305, 316 per Lord Atkin). In the nature of things this issue can seldom seriously arise." Belief by a defendant in the criminal culpability of the plaintiff must be honest, based upon full conviction founded uponreasonable grounds in relation to a set of facts and circumstances, which if true would lead every reasonable man to believe the plaintiff has committed an offence;Ejikeme v. Nwosu (2002) 3 NWLR (Pt. 754) 356.The unchallenged evidence before the lower Court was that the alleged acid attack incident was personally reported to the police by the said victim, Chinwe Mba. After the report to the police, the Respondent and Nkiru Obi werearrested by the police. Although the trial Upper Area Court struck out the First Information Report on grounds of lack of locus standi of the complainants, and discharged the Respondent, it is important to note that the trial UpperArea Court did not see the charge as completely unreasonable and without probable cause. In declining to grant the prayer for compensation, the trial Upper Area Court ruled at page 19 of the Record of Appeal;"On the 2nd prayer that compensation be awarded to the accused persons because the accusations are frivolous and vexatious, I hold that the fact that the two police informants have no locus standi does not make the accusationsfrivolous or vexatious, they may be some truth in the said accusations only the complainant (sic) has been brought by wrong parties. I therefore decline to award compensation."(Emphasis mine)As found above, the prosecution of the Respondent was on account of the complaint of DW1 to the police. The learned trial Judge found that there was an accusation of acid attack on DW1 by the Respondent and Nkiru Obi; page66 of the Record of Appeal. The report to the police, the further petition to the police on behalf of DW1 by the Appellants, upon her request, as well as consequent prosecution of the Respondent have not been shown to becompletely without reasonable and probable cause. This ingredient was also not proved.4. That the prosecution was a result of malice by the defendant against the Plaintiff.Malice means the absence of honest belief in the charge against the accused person; Balogun v. Amubikahun (supra). In the case of Bayol v. Ahemba (supra) the Supreme Court, per Achike, JSC cited the English case of Meering v.Craham - White Aviation Co. 122 L.T. 44 at pp. 35 and 36 in which this point was elucidated thus: "Honest belief seems to be the substantial thing that has always to be decided and such belief must be not merely belief by theprosecutor of the guilt of the person, but it must be a belief that the prosecutor will be able to adduce sufficient evidence before a jury or the Court as would justify the Court in convicting the accused."In Afribank Nigeria Plc v. Onyima & Anor (2003) LPELR-5207 (CA), this Court, per Nzeako, JCA said:"...malice in the context of the tort of unlawful imprisonment, or its related tort of malicious prosecution, is not considered by the law in the sense of hatred or spite against the victim, but in the sense of the perpetrator beingactuated by improper motive or "animus malus", or in the sense of a wrongful act intentionally done. See Payin v. Aliuah (1953) 14 WACA 267 at 268 (Per Foster-Sulton P) Also Okonkwo v. Ogbogu (supra) at P. 435 (Per Ogwuegbu,JSC)." Particulars of malice were given in paragraphs 12-13 to the effect that there had been existing misunderstanding between the respective families of the 1st Appellant and the Respondent. PW1 testified that she and hermother had a quarrel with the wife of the 1st Appellant in 1993 following which the 1st Appellant threatened to resuscitate the case of alleged acid attack against her; pages 52-53 of the Record of Appeal. The learned trial Judgehad drawn these conclusions, page 69 of the Record of Appeal:"Technically, the defendants caused the said prosecution. It ended in the plaintiff's favour. It came about because of the grudge defendants had against the Plaintiff for quarreling with and calling 1st defendant's wife a harlot. Theprosecution was not induced by the desire of the defendants to secure justice. It was propelled by the ulterior-motive if teaching the plaintiff a lesson (so to speak) for the vulgar insult she gave 1st defendant's wife."Again, I must confess that I do not follow the basis for these conclusions. He who asserts must prove. It must be observed that aside from giving the year in which this quarrel and ensuing threat were alleged to have happened,PW1 gave no further precise details of the event. Her mother who was alleged to have been part of the quarrel did not testify. The 2nd Appellant was not mentioned to have had anything to do with this quarrel or threat or even tohave been present when it took place. The conclusions of the learned trial Judge did not flow from the evidence. In paragraph 11 of Amended Statement of Claim at page 38 of the Record of Appeal, the Respondent alleged that theAppellants were not at all related to Chinwe Mba, who was an adult and a mother at the material time. She pleaded that the Appellants were from Amadim-Oko Local Government Area of Enugu State while Chinwe Mba was fromOrumba Local Government in Anambra State. As PW1, she testified, page 53 of the Record of Appeal, that:"Chinwe Mba is from the same Nanka in Anambra State of the country with me... Defendants hail from Enugu State. Defendants do not have blood relationship with Chinwe Mba."But the Appellants had pleaded to the contrary. DW1 said, page 53 of the Record of Appeal:"I know the defendants. They are my cousins. I know plaintiff and Nkiru Obi. They used to be my friends..."Under cross examination at page 57 of the Record of Appeal, DW1 said:"I am from Enugu State. My town is called Ezeagwu (sic)."DW2 also testified that both DW1 and the 2nd Appellant are his cousins. He said he was from Ezeagu Local Government in Enugu State. In further explanation of his relationship with DW1, he said:"My mother was (sic) the same father and mother with DW1."The learned trial Judge found that the Respondent was not cross-examined on her testimony on the nativity of DW1 and of the Appellants. In his conclusion, the learned trial Judge, page 67 of the Record of Appeal, said:"At the end of her testimony, the assertion that the defendants came from Enugu State, while DW1 and herself are from Anambra State went unchallenged. I believe and accept plaintiff's aforestated evidence accordingly... I rejectthe evidence of 1st defendant and DW1 given at defence stage of their cousinhood as belated."I also do not appreciate this conclusion. Having denied the averment of the Respondent on their nativity and relationship with Chinwe Mba, the parties had joined issues. The question is, would simply asserting that a set of peopleare not related or that they come from a certain place constitute proof of same without more? I think not. The pleading and evidence of DW1 and DW2 affirm that a relationship exists between the appellants and DW1. The barefaced assertion of the Respondent to the contrary cannot constitute proof of same. The prosecution of the Respondent has therefore not been shown by the evidence to have been activated by malice against the plaintiff by thedefendant. The conclusion to be reached is that three of the elements that constitute false imprisonment and malicious prosecution were not proved by the Respondent. The judgment of the learned trial Judge was therefore notsustainable having regard to the evidence adduced before him. Issues 1 and 2 are thus resolved in favour of the Appellants."

Per OTISI, J.C.A. (Pp. 12-32, Paras. B-B) - read in context

(201

7) LP

ELR-44

039(

CA)

(201

7) LP

ELR-44

039(

CA)

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading

Judgment): This is an appeal against the decision of the

Benue State High Court sitting at Katsina-Ala in Suit No.

KHC/66/96, delivered on July 17, 1997 wherein the

judgment was entered in favour of the Respondent.

The Respondent, jointly with one Nkiru Obi, as plaintiffs at

the lower Court, initiated proceedings against the

Appellants, claiming the sum of N1.5 million for false

imprisonment, malicious prosecution and general damages.

The writ of summons and statement of claim were

subsequently amended, with leave of the trial Court by

excluding the name of Nkiru Obi and adding the claim for

professional legal fee. The facts as disclosed by the

pleadings and evidence before the trial Court are that on

the 3/8/92 one Chinwe Mba, a cousin of the Appellants,

lodged a complaint at the "A" Division Police Station,

Gboko, against the Respondent and one Nkiru obi for

pouring acid on her back which caused her serious bodily

hurt. The police extract of the said report was admitted in

evidence as Exhibit H. The Respondent and Nkiru Obi were

arrested but later released on bail. The police

1

(201

7) LP

ELR-44

039(

CA)

could not immediately proceed with the prosecution of the

suspects as the said Chinwe Mba was recuperating at her

hometown, Ezeagu in Enugu State after being treated in

the hospital. When Chinwe Mba recovered sufficiently, she

returned to her school, Anambra State Polytechnic, Oko

and instructed the Appellants to monitor the progress of

her complaint at the police state and inform her

accordingly.

When the Appellants discovered that the "A" Division Police

Station was not giving the matter sufficient attention they

informed Chinwe Mba who instructed them to petition the

Assistant Inspector General of Police (AIG), Zone 4,

Makurdi; which the Appellants did. The AIG ordered that

the case file at "A" Division Police Station, Gboko be

transferred to Makurdi. The Respondent and Nkiru Obi

were detained at the Gboko 'A' Division Police Station for

two days and later taken to the Zone 4 Headquarters in

Makurdi where the Respondent and the said Nkiru Obi

were again detained for an additional one day before they

were arraigned before the upper Area Court, Makurdi on a

First Information Report (F.I.R.) for an offence contrary to

Section 97(1) and 248 (2) of the

2

(201

7) LP

ELR-44

039(

CA)

Penal Code. At the hearing before the Upper Area Court,

the Respondent's counsel therein raised an objection as to

the competence of the Appellants to petition the AIG for an

offence committed against Chinwe Mba. The trial upper

Area Court Judge upheld the objection and thereupon,

struck out the F.I.R. and discharged the Respondent. The

Respondent was immediately re-arrested by the police and

a fresh F.I.R. under the same provision of the Penal Code

was preferred against her and Nkiru Obi at the Magistrate

Court, Makurdi. Chinwe Mba, the victim of the acid attack,

signed the F.I.R. The case was later transferred to the

Chief Magistrate Court, Gboko where the case was still

pending at the material time. The Respondent's suit before

the trial High Court was predicated upon the ruling of the

Upper Area Court discharging the Respondent and striking

out the F.I.R. The Respondent had contended before the

lower Court that the petition by the Appellants to the A.I.G.

was maliciously made.

At the conclusion of hearing, the trial Court delivered its

judgment wherein it awarded the sum of N25,000.00 to the

Respondent as damages for false imprisonment and

another

3

(201

7) LP

ELR-44

039(

CA)

N25,000.00 as damages for malicious prosecution, while it

dismissed the other arms of her claims. Dissatisfied with

the said judgment, the Appellants lodged the instant appeal

by Notice of Appeal filed on 7/8/1997. The said Notice of

Appeal was subsequently amended by leave of this Court

and the Amended Notice and Grounds of Appeal was filed

on 18/1/2001, upon three grounds of appeal.

The parties exchanged Briefs of Argument. The Amended

Appellants' Brief, which was filed on 1/7/2003, was adopted

by G. Ofodile Okafor, Esq. SAN on 6/3/2017. The

Respondent's Brief, in which a Preliminary Objection was

raised, was filed on 6/2/2006 but deemed properly filed and

served on 7/2/2006. The Appellant filed a Reply Brief on

20/2/2006. The Respondent was served through her

Counsel, R.S.M. Adebayo, Esq., with Hearing Notice on

2/3/2017 for the hearing of the appeal. At the hearing of

the appeal on 6/3/2017, the Respondent and Counsel were

absent, and there was no explanation for their absence

before the Court. The Respondent's Brief was,

nevertheless, deemed argued pursuant to Order 19 Rule

9(4) of the Court of Appeal Rules, 2016.

The Respondent did not

4

(201

7) LP

ELR-44

039(

CA)

appear to argue the Preliminary Objection raised in the

Respondent's Brief. In consequence, Learned Senior

Counsel for the Appellant urged the Court to strike out the

Preliminary Objection. In a similar situation, the Supreme

Court, per A. M. Muktar, JSC (as he then was) in Carew v.

Oguntokun (2011) LPELR-9355(SC) said:

"It is a cardinal principle of law that any process that is

filed in Court, and which the party who has filed it has not

deemed it necessary to pursue, either by taking further

steps or doing certain things like moving the Court, in

compliance with requirements of the law, as in this case,

the Court will be correct to assume that the process has

been abandoned by the party, and so deem the said process

as duly abandoned. (In this case the preliminary objection)

...the appellant having abandoned her preliminary objection

in the Court of Appeal cannot complain that the Court

refused to pronounce on it."

Contributing to the decision of the Supreme Court in the

earlier case of Lagga v. Sarhuna (2008) 6-7 S.C. (Pt. 1)

101, (2008) LPELR-1740(SC), I. F. Ogbuagu, JSC said:

"... a notice, of preliminary objection, can be given in the

5

(201

7) LP

ELR-44

039(

CA)

respondent's brief. But a party filing it in the brief, must

ask the Court for leave to move the notice, before the oral

hearing of the appeal commences otherwise, it will be

deemed to have been waived and therefore, abandoned."

See also: Oforkire v. Maduike (2003) 1 SCNJ 440;

Opobiyi v. Muniru (2011) LPELR-8232(SC).

In the instant appeal, notwithstanding the service of

Hearing Notice for the hearing of this appeal, neither the

Respondent nor her counsel has appeared to be heard in

respect of the process filed. While, by virtue of Order 19

Rule 9(4) of the Court of Appeal Rules, 2016, this Court is

empowered to deem the Respondent's Brief as duly argued,

there is no such provision regarding a preliminary

objection. In this circumstance, I agree with learned senior

counsel for the Appellant that the Preliminary Objection of

the Respondent ought to be discountenanced as having

been abandoned. The preliminary objection is accordingly

hereby struck out.

Out of the three grounds of appeal, learned Senior Counsel

for the Appellants, distilled three issues for determination,

as follows:

1. Whether the tort of malicious prosecution and

6

(201

7) LP

ELR-44

039(

CA)

false imprisonment were proved.

2. Whether the defendants were mere interlopers and if the

answer is in the negative whether the judgment of the

Court is sustainable having regard to the evidence.

3. Whether the sum of N50,000.00 is excessive.

For the Respondent, the issues for determination were

1. Did the Respondent at the trial Court prove that she was

falsely imprisoned and that the false imprisonment was

caused by the Appellants.

2. Did the Appellants not prosecute the Respondent

maliciously?

3. Did the trial Court apply wrong principles of law in

arriving at the award of damages at the end of the day.

These issues are the same in content. Issues 1 and 2 as

formulated by both parties shall be considered together;

and Issue 3.

Issues 1 and 2

Learned Senior Counsel for the Appellants, relying on

Halsbury's Laws of England 4th Edition Vol. 45 paragraph

1340 defined malicious prosecution as being an abuse of

the process of the Court by wrongfully setting the law in

motion on a criminal charge. An action for false

imprisonment lies at the suit of a person unlawfully

imprisoned against the person who causes

7

(201

7) LP

ELR-44

039(

CA)

the imprisonment; also, relying on Halsbury's Laws of

England (supra) paragraph 1325. There are four

ingredients that a plaintiff must prove in order to succeed

in an action for malicious prosecution as follows:

i. That the defendant set in motion against the plaintiff, the

law leading to a criminal charge;

ii. That the prosecution ended in the discharge and

acquittal of the plaintiff;

iii. That the prosecution of the plaintiff was completely

without reasonable and probable cause;

iv. That the prosecution was a result of malice by the

defendant against the plaintiff.

The onus of proving all these four elements rests on the

plaintiff relying on Balogun v. Amubikahun (1989) 3

NWLR (Pt. 107) 18 at 26: Barau v. Chaba (1995) 1

NWLR (Pt. 371) 357 at 366; Bayol v. Ahemba (1999)

10 NWLR (Pt. 623) 381 at 398; Ojo v. Okitipupa Oil

Palm Plc (2001) 9 NWLR (Pt. 719) 679 at page

695-696; Ejikeme v. Nwosu (2002) 3 NWLR (Pt. 754)

at page 367-378. Learned Senior Counsel for the

Appellants also relied on Balogun v. Amubikahun

(supra); Barau v. Chaba (supra) to submit that the tort

of false imprisonment is embodied in the first ingredient of

the tort

8

(201

7) LP

ELR-44

039(

CA)

of malicious prosecution. While it was contended for the

Appellants that these elements of malicious prosecution

and of false imprisonment were not proved by the

Respondent, for the Respondent, it was otherwise

contended. A scrutiny of the evidence which was adduced

before the trial Court is therefore essential.

When a report is made to the police against a plaintiff, and

the defendant instigates his arrest and or detention, a

complaint of false imprisonment could arise. When the

report or charge, as instigated by a defendant, is carried on

before a judicial officer, a complaint of malicious

prosecution may arise; UAC (Nig.) Plc v. Sobodu (2006)

LPELR-7740 (CA). Thus, a defendant who maliciously

makes a false statement against a plaintiff and causes a

judicial act, like the issue of a summons or warrant of

arrest, to the prejudice of the plaintiff, will be liable for

malicious prosecution even though he may not technically

have been the prosecutor in the strict sense; Agi v. First

City Monument Bank Plc (2013) LPELR-20708(CA).

The elements required to prove the complaint must be

evident in the evidence adduced before the trial Court.

9

(201

7) LP

ELR-44

039(

CA)

In examining the evidence adduced before the trial Court, it

is important to bear in mind that an appellate Court will not

ordinarily substitute its own view of the evidence for that of

the learned trial Judge except in prescribed circumstances.

An appellate Court may, in the interest of justice set aside

findings of fact made by a trial Court where such findings

cannot be regarded as resulting from the evidence or the

findings are not based on the fact of the trial judge having

seen and heard the witnesses or from conclusions from

demeanour in the witness box;Aigbotosho v. Governor,

Oyo State (1992) LPELR-2570(SC); Olabanji v.

Omokewu (1992) LPELR-2541(SC). In his comments

regarding the issue of whether and when an appellate

Court should reverse the findings of a trial Court, Oputa,

JSC, in Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301,

(1988) LPELR-720 (SC), restated some guiding principles

as follows:

"1. Ordinarily it is not the function of an Appellate Court to

disturb the findings of fact of the trial Court - the Court

that saw the witnesses, heard them testify, and believed

one side while disbelieving the other. This is the first

principle - the

10

(201

7) LP

ELR-44

039(

CA)

general principle...

2. Where the trial Court gave reasons for making the

findings it made, an Appellate Court will be fully in order if

it proceeds to look at those reasons and if the reasons are

not satisfactory, as in the case on appeal, the Appellate

Court will come to the conclusion (as was done in this case)

that any advantage enjoyed by the trial Court by reason of

having seen and heard the witnesses was not and could not

be sufficient to explain or/and justify the trial Court's

conclusions. An appellate Court has jurisdiction to look at

the evidence on record to see whether they justify the

conclusions of the learned trial judge...

3. Where the real issue does not revolve around the

credibility of the witnesses who testified, as much as on the

inferences to be drawn from proved or admitted facts, or

facts as found by the trial Court, an appellate Court has full

liberty to draw its own inferences and should not be

deterred from that duty to thus make up its own mind, not

disregarding, of course, the judgment appealed against but

giving it, its due weight...

4. Where the trial judge proceeded on a wrong assumption

as to the onus of proof

11

(201

7) LP

ELR-44

039(

CA)

this misapprehension and wrong assumption may affect the

learned trial judge's views on the evidence and on his

conclusions. There an appellate Court will be perfectly

justified to intervene.

5. Where the trial Court did not consider the entire

evidence there, its conclusions are bound to be faulty and

erroneous and an appellate Court will intervene to correct

such error..."

I shall now examine the said evidence against the elements

required to be proved by the Respondent as plaintiff.

1. That the defendant set in motion against the

plaintiff, the law leading to a criminal charge:

On what would amount to setting the law in motion by a

defendant against a plaintiff, the Appellant relied on

Balogun v. Amubikahun (supra) at page 30; Barau v.

Chaba (supra) at page 371. In order 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. The case of

Onyedinma v. Nnite (1997) 3 NWLR (Pt. 493) 33 at

346 was cited and relied on. It must be shown that the

defendant not only made a report to the police, leaving it to

the discretion

12

(201

7) LP

ELR-44

039(

CA)

of the police to do its work of investigation and prosecution,

but actually actively instigated the actual prosecution of the

plaintiff.

It is well settled that merely lodging a criminal report to

the police does not make the defendant actively

instrumental in setting the law in motion against the

plaintiff; Balogun v. Amubikahun (sapra); Okonkwo v.

Ogbogu (1996) LPELR-2486(SC); Bayol v. Ahemba

(supra). Simply passing information to the police or mere

complaint to the police, which leads the police to arrest a

suspect on their initiative, will not make a citizen liable for

false imprisonment; Mandilas Karaberis Ltd v. Apena

(1969) NMLR 199; Onyedinma v. Nnite (supra);

Isheno v. Julius Berger Nig. Plc (2008) 2-3 S.C. (Pt.

11) 78; Okeke v. Igboeri (2010) LPELR-4712(CA). See

also Nwangwu & Anor v. Duru & Anor (2002) 2 NWLR

(Pt. 751) 265 where this Court, per Chukwuma-Eneh, JCA

(as he then was) held:

"It is settled law that where an individual has lodged the

facts of his complaints to the police as in this case by way

of petition, and the police have thereupon on their own

proceeded to carry out arrests and detention, then the act

of

13

(201

7) LP

ELR-44

039(

CA)

imprisonment is that of the police. See Sewell v. National

Telephone Co. (1907) 1 K.B. 557."

In the absence of established proof that it was the

Appellants who were actively instrumental in setting the

law in motion against the Respondent, this ground would

have failed to meet the required test.

In paragraph 4 of the Amended Statement of Claim at page

37 of the Record of Appeal, the Respondent had averred:

On 7.6.93, the defendants actuated by malice and deep-

seated sinister animosity, maliciously without probable

belief in their action and not being parties affected in any

with an alleged misdemeanor of the plaintiff decided to

become busybodies, meddlesome by reporting an alleged

offence committed against Chinwe Mba (Adult) to the State

ZIIB Makurdi as the Complainants.

Further alleged in paragraphs 5-7 thereof, page 37 of the

Record of Appeal, was that the police based on the alleged

malicious information, caused the arrest and subsequent

arraignment of the Respondent. The Respondent who

testified as PW1 in line with her pleadings, said in evidence

in chief, page 50 of the Record of Appeal:

"On 7.6.93, the defendants

14

(201

7) LP

ELR-44

039(

CA)

reported me to police that I poured acid on one Chinwe

Mba. The report covered my sister called Nbiru Obi. It was

at central police Station Gboko that defendants reported us

..."

She further testified, pages 52-53 of the Record of Appeal:

"I quarreled with Chinwe Mba in 1992 Defendants brought

the case against me in 1993... Our quarrel with Chinwe

Mba in 1992 was settled by our families and the Igbo

Community in 1992."

Under cross examination, page 52 of the Record of Appeal

PW1 now said:

"The alleged acid attack was resolved at family level

between Chinwe Mba's family and my family."

The evidence for the Appellants was rather different.

Chinwe Mba testified as DW1. She testified that she was

attacked with acid by the Respondent and Nkiru Obi. Her

testimony in chief, page 55 of the Record of Appeal was

that:

"The next day, I reported the case to the Police at "A"

Division Gboko.

The police took me to hospital. The police got the plaintiff

and Nkiru Obi arrested."

Under cross examination, page 57 of the Record of Appeal,

she reiterated:

"I first reported the matter to the Police at 'A' Division

Gboko

15

(201

7) LP

ELR-44

039(

CA)

on 3.8.93. (sic)"

DW3 was a police corporal attached to "A" Division Gboko

in the divisional crime branch office. He tendered as

Exhibit H the police extract in connection with a case of

conspiracy and causing grievous hurt reported by one

Chinwe Mba against one Mrs. Nkiru Obi; page 59 of the

Record of Appeal.

The evidence of DW1, as pleaded, was after the acid attack,

DW1 was hospitalized for a long time. In evidence in chief

at page 56 of the Record of Appeal, DW1 further said that

after she was discharged from hospital, upon the advice of

the hospital authorities, she went to her village to

recuperate. She returned to Gboko in January 1993. She

further testified:

"Before I left for school, I told defendants to follow up the

progress of the case with the police. Sometime in March,

1993, I got a letter from the defendants informing me that

police had done nothing yet over the case. I replied them

and told them to petition the police which they did."

Under cross examination, page 56 of the Record of Appeal,

DW1 said:

"I did not give the defendants power of attorney to

prosecute the case on my behalf. I gave the defendants the

16

(201

7) LP

ELR-44

039(

CA)

instruction in a letter to them that they should go on with

the case for me."

From the pleadings and evidence of the Appellants, it was

DW1, the victim of the alleged acid attack, who reported

the incident to the police herself on 3/8/1992, as confirmed

by Exhibit H, the Police Extract. The police upon the report

arrested and detained the Respondent and Nkiru Obi.

When DW1 left Gboko, she requested the Appellants to

follow up the progress of the complaint she made to the

police. DW1 also caused the Appellants to act on her behalf

by petitioning Assistant Inspector-General of Police in-

charge of Zone 4 Makurdi when the 'A' Division of the

police in Gboko, before which the initial report was made,

appeared tardy in its prosecution of the matter. From the

evidence, the victim, DW1 initiated the complaint to the

police, the Appellants merely acted on her request, by

following up on the case, including the act of writing a

petition on her behalf. The police acted on the initial

report, Exhibit H, and arrested and detained the

Respondent in 'A' Division of the police station, Gboko. The

Respondent was on police bail when she was rearrested

and moved to

17

(201

7) LP

ELR-44

039(

CA)

Police Zone 4 Makurdi upon the petition written on the

instructions of DW1.

The learned trial Judge acknowledged that the two torts

involved in this matter were false imprisonment and

malicious prosecution. He further acknowledged, page 66

of the Record of Appeal:

"It is common ground between the parties and I believe

them that DW1 had accused the plaintiff and one Nkiru Obi

of attacking her with acid in 1992. Plaintiff swore their two

families and the Igbo Community in Gboko resolved the

case at home amicably. Defendants did not dislodge this

assertion under cross examination. DW1 who was the

victim of the alleged attack gave no evidence on the said

assertion. In short no evidence came forth from defendants'

side refuting the said assertion. I am satisfied with the

unchallenged evidence of plaintiff that the alleged said

attack incident was amicably settled at the domestic forum

afore-sworn in her said evidence. To suggest as did the

plaintiff that the matter did not reach the police does not

impress me. Exhibit H, the extract from the police case

diary convinces me that DW1 had reported the incident to

them on 3.8.92. It seems certain to me that

18

(201

7) LP

ELR-44

039(

CA)

the peaceful settlement of the case came after the

report to the police. It also seems certain to me that

none of the parties put the police in the know of

peaceful settlement in order to have Exhibit H closed

by the police. It remained a live matter before the 'A'

Division of the police formation Gboko, albeit in

abeyance, at the time the defendants petitioned the

Assistant Inspector-General of Police in-charge of

Zone 4 Makurdi." (Emphasis mine)

With respect, the conclusions reached by the learned trial

Judge are not easy to comprehend. In the first place,

evidence regarding a peaceful settlement of the matter

came only from the Respondent as PW1. As pointed out by

the Learned Senior Counsel, there was no evidence

adduced in proof of this assertion. In evidence in chief,

PW1 said the quarrel was resolved by both families and by

the Igbo Community. Under cross examination, she now

said it was resolved at family level by both families, that is

to say, the Igbo Community was not involved. Nonetheless,

no one came from the Igbo Community in Gboko or from

the Respondent's family to confirm any such peaceful

settlement took place. Settlement of a

19

(201

7) LP

ELR-44

039(

CA)

dispute involves the two parties and perhaps, witnesses. No

witness of the settlement testified. The victim, DW1, who

ought to be part of the settlement did not testify of any

such amicable resolution of the dispute. Rather the

evidence of the Appellants was that DW1 maintained her

complaint to the police directly and through the Appellants

for the police investigation and action. Indeed, if there had

actually been a peaceful settlement, it was the Respondent

who ought to have ensured the police were put in the

picture. The trial Judge had concluded that:

"It seems certain to me that the peaceful settlement

of the case came after the report to the police. It also

seems certain to me that none of the parties put the

police in the know of peaceful settlement in order to

have Exhibit H closed by the police."

These conclusions in my respectful opinion can only be

described as speculation and conjecture. The evidence

adduced did not point in this direction at all.

The learned trial Judge acknowledged that the complaint of

DW1 remained a live matter before the 'A' Division of the

police formation Gboko, albeit in abeyance, at the time the

20

(201

7) LP

ELR-44

039(

CA)

defendants petitioned the Assistant Inspector-General of

Police in-charge of Zone 4 Makurdi. The complaint that

remained a live matter was the original complaint laid by

DW1 in Exhibit H. There had been no closure of the case.

The further conclusion that the Appellants' petition

resuscitated or revived the case ought not stand.

The Respondent was required to prove her assertions. It is

trite law that he who asserts must prove; Agala v. Okusin

(2010) 10 NWLR (Pt. 1202) 412 S.C.; Ohochukwu v.

AG, Rivers State & Ors (2012) LPELR-7849(SC). Aside

from her bare assertion, the Respondent tendered no other

evidence in proof. No duty lay on the Appellants to deny

assertions or allegations which have not been proved. I

agree with the Appellants that the conclusion of the learned

trial Judge appeared to have placed the onus of proof on

the Appellants and not on the Respondent as it ought to be.

It must be emphasized, as is well settled, that the mere fact

that a report was made to the police does not mean that the

law has been set in motion against a suspect; Balogun v.

Amubikahun (supra); Okonkwo v. Ogbogu (1996)

LPELR-2486 (SC); Bayol v. Ahemba

21

(201

7) LP

ELR-44

039(

CA)

(supra). The evidence adduced showed that the police

action against the Respondent was initiated by the report

made to the police by DW1, evidenced by Exhibit H. This

said report was still a live issue before the police, although

the Respondent was on police bail. The Appellants merely

acted on behalf of DW1 on her request that the police be

petitioned on her behalf to take further action on her said

live complaint. The initial decision to arrest and detain the

Respondent, as well as the later decision to re-arrest and

detain the Respondent, were taken by the police. The

Appellants have not been shown to have actively

encouraged or masterminded it. In my considered opinion,

having regard to the evidence adduced, it was not proved

that the Appellants set the law in motion, leading to a

criminal charge, against the Respondent. This ingredient of

malicious prosecution and false imprisonment was

therefore not proved.

2. That the prosecution ended in the discharge and

acquittal of the plaintiff;

In this element of malicious prosecution, prosecution

terminating in a defendant's favour does not mean that he

has to be discharged on the merits. It suffices

22

(201

7) LP

ELR-44

039(

CA)

if he is discharged or the Attorney General enters a nolle

prosequi staying further proceedings, or where the plaintiff

was acquitted of the charge in question but convicted of a

lesser charge; Barau v. Chaba (supra); Agi v. First City

Monument Bank Plc (supra).

The pleadings and unchallenged evidence before the trial

lower Court were that in the course of the trial of the

Respondent before the Upper Area Court, Makurdi, the

Respondent's Counsel took a preliminary objection as to the

issue of locus standi of the Appellants to make a report to

the police on behalf of Chinwe Mba, who was an adult at

the material time. The said trial Upper Area Court upheld

the objection and struck out the First Information Report.

The said ruling was not appealed against. The prosecution

at the Upper Area Court fell flat on its face on account of

this ruling as the Respondent was discharged. Although the

evidence before the lower Court was that the prosecution

of the Respondent was on going in other related

proceedings, the matter for which the instant suit was filed

arose from the said ruling delivered on 23/9/1993, by the

upper Area Court, in which the Appellant was

23

(201

7) LP

ELR-44

039(

CA)

discharged. The said prosecution therefore ended in the

discharge of the Respondent.

3. That the prosecution of the plaintiff was completely

without reasonable and probable cause;

In determining whether the prosecution of a plaintiff was

reasonable and with probable cause, the test to be applied

is an objective one. In Oteri v. Okorodudu & Anor

(1970) All NLR 199, (1970) LPELR-2824 (SC), the

Supreme Court expounded:

"In our view the test to be applied, with the onus of proof

on the defendant seeking to justify his conduct, was laid

down in 1838 by Tindal, C.J. in Allen v. Wright 8 Car. and P.

522 where he said that it must be that of a reasonable

person acting without passion and prejudice.

The matter must be looked at objectively, and in the light of

the facts known to the defendant at the time, not on

subsequent facts that may come to light...

We would also refer to the judgment of Diplock, L.J. (as he

then was) in Dallison v. Caffiey (1965) 1 Q.B. 348 as to

the question of reasonableness in a case involving both

false imprisonment and malicious prosecution where at

page 371 he said:-

"One word about the requirement that

24

(201

7) LP

ELR-44

039(

CA)

the arrestor or prosecutor should act honestly as well as

reasonable. In this context it means no more than that he

himself at the time believed that there was reasonably and

probable cause, in the sense that I have defined it above,

for the arrest or for the prosecution, as the case may be.

The test whether there was reasonable and probable cause

for the arrest or prosecution is an objective one, namely,

whether a reasonable man, assumed to know the law and

possessed of the information which in fact was possessed

by the defendant, would believe that there was reasonable

and probable cause. Where that test is satisfied, the onus

lies on the person who has been arrested or prosecuted to

establish that his arrestor or prosecutor did not in fact

believe what ex hypothesis he would have believed had he

been reasonable (see Herniman v. Smith (1938) A.C.

305, 316 per Lord Atkin). In the nature of things this

issue can seldom seriously arise."

Belief by a defendant in the criminal culpability of the

plaintiff must be honest, based upon full conviction founded

upon reasonable grounds in relation to a set of facts and

circumstances, which if true would lead

25

(201

7) LP

ELR-44

039(

CA)

every reasonable man to believe the plaintiff has committed

an offence;Ejikeme v. Nwosu (2002) 3 NWLR (Pt. 754)

356.

The unchallenged evidence before the lower Court was that

the alleged acid attack incident was personally reported to

the police by the said victim, Chinwe Mba. After the report

to the police, the Respondent and Nkiru Obi were arrested

by the police. Although the trial Upper Area Court struck

out the First Information Report on grounds of lack of locus

standi of the complainants, and discharged the Respondent,

it is important to note that the trial Upper Area Court did

not see the charge as completely unreasonable and without

probable cause. In declining to grant the prayer for

compensation, the trial Upper Area Court ruled at page 19

of the Record of Appeal;

"On the 2nd prayer that compensation be awarded to the

accused persons because the accusations are frivolous and

vexatious, I hold that the fact that the two police

informants have no locus standi does not make the

accusations frivolous or vexatious, they may be some

truth in the said accusations only the complainant

(sic) has been brought by wrong parties. I therefore

decline to award compensation."

26

(201

7) LP

ELR-44

039(

CA)

(Emphasis mine)

As found above, the prosecution of the Respondent was on

account of the complaint of DW1 to the police. The learned

trial Judge found that there was an accusation of acid

attack on DW1 by the Respondent and Nkiru Obi; page 66

of the Record of Appeal. The report to the police, the

further petition to the police on behalf of DW1 by the

Appellants, upon her request, as well as consequent

prosecution of the Respondent have not been shown to be

completely without reasonable and probable cause. This

ingredient was also not proved.

4. That the prosecution was a result of malice by the

defendant against the Plaintiff.

Malice means the absence of honest belief in the charge

against the accused person; Balogun v. Amubikahun

(supra). In the case of Bayol v. Ahemba (supra) the

Supreme Court, per Achike, JSC cited the English case of

Meering v. Craham - White Aviation Co. 122 L.T. 44 at

pp. 35 and 36 in which this point was elucidated thus:

"Honest belief seems to be the substantial thing that has

always to be decided and such belief must be not merely

belief by the prosecutor of the guilt of the

27

(201

7) LP

ELR-44

039(

CA)

person, but it must be a belief that the prosecutor will be

able to adduce sufficient evidence before a jury or the

Court as would justify the Court in convicting the accused."

In Afribank Nigeria Plc v. Onyima & Anor (2003)

LPELR-5207 (CA), this Court, per Nzeako, JCA said:

". . .malice in the context of the tort of unlawful

imprisonment, or its related tort of malicious prosecution,

is not considered by the law in the sense of hatred or spite

against the victim, but in the sense of the perpetrator being

actuated by improper motive or "animus malus", or in the

sense of a wrongful act intentionally done. See Payin v.

Aliuah (1953) 14 WACA 267 at 268 (Per Foster-Sulton

P) Also Okonkwo v. Ogbogu (supra) at P. 435 (Per

Ogwuegbu, JSC)."

Particulars of malice were given in paragraphs 12-13 to the

effect that there had been existing misunderstanding

between the respective families of the 1st Appellant and

the Respondent. PW1 testified that she and her mother had

a quarrel with the wife of the 1st Appellant in 1993

following which the 1st Appellant threatened to resuscitate

the case of alleged acid attack against her; pages 52-53 of

the Record

28

(201

7) LP

ELR-44

039(

CA)

of Appeal. The learned trial Judge had drawn these

conclusions, page 69 of the Record of Appeal:

"Technically, the defendants caused the said prosecution. It

ended in the plaintiff's favour. It came about because of the

grudge defendants had against the Plaintiff for quarreling

with and calling 1st defendant's wife a harlot. The

prosecution was not induced by the desire of the

defendants to secure justice. It was propelled by the

ulterior-motive if teaching the plaintiff a lesson (so to

speak) for the vulgar insult she gave 1st defendant's wife."

Again, I must confess that I do not follow the basis for these

conclusions. He who asserts must prove. It must be

observed that aside from giving the year in which this

quarrel and ensuing threat were alleged to have happened,

PW1 gave no further precise details of the event. Her

mother who was alleged to have been part of the quarrel

did not testify. The 2nd Appellant was not mentioned to

have had anything to do with this quarrel or threat or even

to have been present when it took place. The conclusions of

the learned trial Judge did not flow from the evidence.

In paragraph 11 of Amended

29

(201

7) LP

ELR-44

039(

CA)

Statement of Claim at page 38 of the Record of Appeal, the

Respondent alleged that the Appellants were not at all

related to Chinwe Mba, who was an adult and a mother at

the material time. She pleaded that the Appellants were

from Amadim-Oko Local Government Area of Enugu State

while Chinwe Mba was from Orumba Local Government in

Anambra State. As PW1, she testified, page 53 of the

Record of Appeal, that:

"Chinwe Mba is from the same Nanka in Anambra State of

the country with me... Defendants hail from Enugu State.

Defendants do not have blood relationship with Chinwe

Mba."

But the Appellants had pleaded to the contrary. DW1 said,

page 53 of the Record of Appeal:

"I know the defendants. They are my cousins. I know

plaintiff and Nkiru Obi. They used to be my friends…"

Under cross examination at page 57 of the Record of

Appeal, DW1 said:

"I am from Enugu State. My town is called Ezeagwu (sic)."

DW2 also testified that both DW1 and the 2nd Appellant

are his cousins. He said he was from Ezeagu Local

Government in Enugu State. In further explanation of his

relationship with DW1, he said:

"My mother was (sic) the same father and mother with

DW1."

30

(201

7) LP

ELR-44

039(

CA)

The learned trial Judge found that the Respondent was not

cross-examined on her testimony on the nativity of DW1

and of the Appellants. In his conclusion, the learned trial

Judge, page 67 of the Record of Appeal, said:

"At the end of her testimony, the assertion that the

defendants came from Enugu State, while DW1 and herself

are from Anambra State went unchallenged. I believe and

accept plaintiff’s aforestated evidence accordingly... I reject

the evidence of 1st defendant and DW1 given at defence

stage of their cousinhood as belated."

I also do not appreciate this conclusion. Having denied the

averment of the Respondent on their nativity and

relationship with Chinwe Mba, the parties had joined

issues. The question is, would simply asserting that a set of

people are not related or that they come from a certain

place constitute proof of same without more? I think not.

The pleading and evidence of DW1 and DW2 affirm that a

relationship exists between the appellants and DW1. The

bare faced assertion of the Respondent to the contrary

cannot constitute proof of same. The prosecution of the

Respondent has

31

(201

7) LP

ELR-44

039(

CA)

therefore not been shown by the evidence to have been

activated by malice against the plaintiff by the defendant.

The conclusion to be reached is that three of the elements

that constitute false imprisonment and malicious

prosecution were not proved by the Respondent. The

judgment of the learned trial Judge was therefore not

sustainable having regard to the evidence adduced before

him. Issues 1 and 2 are thus resolved in favour of the

Appellants.

Issue 3

Having resolved Issues 1 and 2 in favour of the Appellants,

it follows that the award of the sum of N25,000.00 to the

Respondent as damages for false imprisonment and

another N25,000.00 as damages for malicious prosecution

cannot stand. These awards are therefore liable to be set

aside. Issue 3 is accordingly resolved in favour of the

Appellants.

This appeal is meritorious and is hereby allowed. The

judgment of the High Court of Benue State sitting at

Katsina-Ala in Suit No. KHC/66/96, delivered on July 17,

1997 is hereby aside in its entirety.

The Appellants are entitled to costs which I assess at

N100,000.00.

JUMMAI HANNATU SANKEY, J.C.A.: I have had the

(201

7) LP

ELR-44

039(

CA)

32

(201

7) LP

ELR-44

039(

CA)

advantage of reading in draft the Judgment delivered by my

learned brother, Otisi, JCA.

Being in agreement with the reasons he gives for allowing

the Appeal, I too find the Appeal meritorious and would

allow same. I endorse the order as to costs.

JOSEPH EYO EKANEM J.C.A.: I read in advance the

judgment which has just been delivered by my learned

brother, Otisi, JCA. I agree with the reasoning and

conclusion therein which I adopt as mine.

I also allow the appeal and abide by the consequential

orders made in the lead judgment.

33

(201

7) LP

ELR-44

039(

CA)

Appearances:

G. Ofodile Okafor, Esq. SAN with him, Mrs. D. S.Obademi For Appellant(s)

For Respondent(s)

(201

7) LP

ELR-44

039(

CA)