CASE OF THE DAY: PROOF OF MALICIOUS PROSECUTION

ABUBAKAR INJIDDA GAGARA V. DANIEL YADZIMAI

Suit Number:?CA/YL/6/2020

Area Of Law

Appeal, Action, Evidence, Tort, Practice And Procedure, Words And Phrases

Summary Of Facts

This is an appeal against the judgment of the High Court of Adamawa State, Yola Division, Coram Helen N. Hammanjoda, J. in Suit No. ADSY/123/2016 delivered on 4th November, 2019?wherein judgement was given in favour of the Respondent.

The Respondent as Plaintiff at the lower Court acting on the belief that the Appellant as Defendant had illegally set law enforcement agents and the machinery of justice against him, instituted an action before the lower Court by a Writ of Summons dated 9th September, 2016, via which the Respondent sought declaratory reliefs and damages against the Defendant for false imprisonment and malicious prosecution. Parties exchanged processes and the matter proceeded to trial.

Upon conclusion of trial, the learned trial Judge in a judgment delivered on 4th November, 2019, held that the case is meritorious because the Respondent as Plaintiff proved the four essential elements of malicious prosecution.

The Court subsequently entered judgment in favour of the Respondent, granted the declaratory reliefs 1-4, and awarded general damages of varying sums in respect of reliefs 5-8, refused to grant damages in respect of relief 9 and refused to make any order as to cost.

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

HELD:

Appeal dismissed

ISSUES FOR DETERMINATION

• Whether the trial Court properly evaluated the evidence before it in arriving at its decision?
• Whether the decision of the trial Court that the Appellant maliciously prosecuted the Respondent is sound and legally justifiable?

RATIONES

DOCUMENTS – DEFINITION OF DOCUMENTS

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

DOCUMENTARY EVIDENCE – Whether Documentary Evidence Is The Best Form Of Evidence

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

DOCUMENTARY EVIDENCE – PROOF OF DOCUMENTARY EVIDENCE

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

PUBLIC DOCUMENT – MEANING OF PUBLIC DOCUMENT

"Section 102?defined public documents thus:

1. "The following are public documents:
2. (a) documents forming the official acts or records of the official acts of - (i) The sovereign authority; (ii) Official bodies and tribunals; or (iii) Public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and

(b) Public records kept in Nigeria of private documents".

From the above, it is indubitable that Exhibits A, B1, B2 and C are public documents, as they constitutes record of the official acts of Public officers and thus require certification before they could be properly admitted and relied upon by the lower Court.

See:?Onwuzuruike v Edoziem (2016) 6 NWLR (Pt. 1508) 215, 233-234;" – Per TUKUR, JCA

ADMISSIBILITY OF EVIDENCE – ON BASIS FOR ADMISSIBILITY OF EVIDENCE

"One of the fundamental principles of the law of evidence with regards to admissibility, as codified in?Sections 1-15 of the Evidence Act, 2011, is to the effect that admissibility is principally determined by relevance, thus a piece of evidence if relevant to the facts in issue is admissible except rendered inadmissible by operation of law. The learned trial Judge was therefore right to have admitted the Exhibits, as they are directly related to the ingredients required for the proof of the case at trial." – Per TUKUR, JCA

CERTIFICATION OF PUBLIC DOCUMENTS – WHETHER PUBLIC DOCUMENTS MUST BE CERTIFIED

"The second attack has to do with proper certification of exhibits A and C being two separate legal advices which contained the opinion that no prima facie case was made out against the Respondent with regards to the basis for the two separate arrests.?Section 104 of the Evidence Act 2011, which governs certification of documents provides thus:

(1)?????Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.

(2)?????The certificate mentioned in subsection (1) of this section shall be dated and subscribed by such officer with his name and his official title and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.

(3)?????An officer who by the ordinary course of official duty is authorised to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.

A careful examination of the above vis a vis the exhibits in question, reveals that there was substantial compliance with the above provisions in the certification of the exhibits by the Registrar of the Magistrate Courts who were in custody of the originals of the legal advices, thus had the authority to so certify.

See:?Ineibere Bob-Manuel v. Felix C. N. Woji (2010) 8 NWLR (Pt. 1196) 260, 273"-Per TUKUR, JCA

TORT OF MALICIOUS PROSECUTION AND FALSE IMPRISONMENT – DEFINITION AND MEANING OF ‘MALICIOUS PROSECUTION’ AND ‘FALSE IMPRISONMENT’

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

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

MALICIOUS PROCECUTION - PURPOSE AND INGREDIENTS NECESSARY TO PROVE THE TORT OF MALICIOUS PROSECUTION

"This Court in the case of?Ogbonna V. Ogbonna (2014) LPELR CA 200, made a statement as to the purpose of a suit founded in malicious prosecution thus:

"malicious prosecution is a tort which enables a person who is a subject of groundless and unjustified proceeding to seek claims for damages"

The ingredients of malicious prosecution which a Plaintiff must prove in order to succeed in a case of malicious prosecution have been clearly and correctly outlined by counsel to both parties and they are:

1. That a criminal charge/case was brought against the Plaintiff at the behest of the Defendant
2. That the case was determined in the Plaintiff’s favour;
3. That the case was without reasonable and probable cause; and
4. That the case was malicious.

See:?MODDIBO v. ABDULMALIK (2016) LPELR-41614(CA); ALABURA v. MAINA & ORS (2015) LPELR-41653(CA); and MAYALEKE & ANOR v. OKENLA (2015) LPELR-41700 (CA).

The contention of Appellant’s counsel, trying to import a qualification to the first ingredient, by stating that the case must have been before a Court of competent jurisdiction and implying that a full trial must ensue, is not correct. It is enough that a judicial act such as the preferring of a charge and arraignment in Court occurred against the Respondent." –?Per TUKUR, JCA

FALSE IMPRISONMENT – MEANING OF THE TORT OF FALSE IMPRISIONMENT

"This Court in the case?of DIAMOND BANK v. OKPALA (2016) LPELR-41573(CA) (Pp 8 - 8 Paras B - E)?per Tinuade Akomolafe -Wilson, defined the tort of false imprisonment thus:

"The tort of false imprisonment is the restraining or detaining of a person, if the person doing or causing the detention or imprisonment has no right in law to do so. It is an intentional instigation of the arrest and detention of another without reasonable cause. To succeed in an action for false imprisonment, the plaintiff must show that it was the defendant who was actively instrumental in setting the law into motion against him. - Okonkwo v. Ogbogu (1996) LPELR-2486 (SC) 23, (1996) 5 NWLR (Pt. 449) 420 at 433; Borno State Government v. Ashieik (2007) All FWLR (Pt. 357) 1006."

See:?OKEKE v. IGBOERI (2010) LPELR-4712 (CA); RIGHE v. ZUBAIRU (2013) LPELR-24233 (CA); and MATAZU v. MAZOJI (2014) LPELR-23071 (CA)." – Per TUKUR, JCA

FALSE IMPRISONMENT – HOW TO SUCCESSFULLY PROVE THE TORT OF FALSE IMPRISIONMENT

"The Apex Court in the case of?OKAFOR VS. ABUMOFUANI (2016) 12 NWLR (Pt. 1525) p.117, per Mary Ukaego Peter-Odili, JSC, gave a guide on similar situations of report to police grounding claims for false imprisonment thus:

"It is a correct representation of the law that if a report as in this case is made to the Police which has been found to be totally false, malicious and without foundation it is the maker of the report that is liable in damages to the Plaintiff for false imprisonment. This is because it is the maker of the report which complaint ignited the action of detention carried out by the Police that does not bring in the Police as a party to the action in the false report and imprisonment." However, action will not lie against an individual who merely gave information to the Police which led the Police in the exercise of their discretion to arrest a suspect. See ISHENO VS. JULIUS BERGER (NIG) PLC (2008) 6 NWLR (pt. 1084) p. 582.

See:?OMUMA MICRO-FINANCE BANK NIG. LTD v. OJINNAKA (2018) LPELR-43988(CA); and?ISHENO v. JULIUS BERGER (NIG) PLC (2008) LPELR-1544(SC).

There is no doubt that the Respondent was arrested and detained by the Police on two different occasions and charged to Court on both occasions, at the instigation and active involvement of the Appellant.??It is also clear from the evidence at trial, that the Appellant had no probable cause to suspect the Respondent of armed robbery, but only used the robbery incident as an excuse to deal with his Creditor who had asked for his money back in a manner the Appellant did not like. Even more importantly with regards to malicious intention is the fact that when the Respondent’s principal, a staff of the World Health Organisation obtained the bail of the Respondent after one of the arrests, the Appellant wrote the WHO accusing that staff of bias and supporting a criminal. This act confirms to the reasonable man that the Appellant wasn’t interested in justice but in seeing the Respondent languish in detention. It is true that a person who made a report to the Police may be liable for the tort of false imprisonment, where the report he made turns out to be false in nature and based on ulterior motives other than one borne out of a desire to see justice done based on an honest belief or to assist the Police in the exercise of their duty of crime prevention." – Per TUKUR, JCA

Statutes Referred To:

Evidence Act, 2011