⦿ CASE SUMMARY OF:
Alhaji Jibrin Garba v. Alhaji Isa Tarihu Maigoro (1992) – CA
⦿ LITE HOLDING
It is trite law that in an action for malicious prosecution the plaintiff must prove that the prosecution was commenced at the instance of the defendant who set the law in motion against him leading to criminal charges. He was prosecuted and the criminal prosecution terminated in his favour.
⦿AREA OF LAW
Law of Torts (Malicious Prosecution)
– Honest belief.
– Malicious Prosecution.
Alhaji Jibrin Garba x
Alhaji Isa Tarihu Maigoro
(1992) JELR 43085 (CA)
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
This appeal is against the judgment of the High Court of Gongola State Holden at Yola in a claim for damages for defamation of character, malicious prosecution and injunction. The parties exchanged pleadings. The plaintiff testified and called 4 witnesses and the defendant who also testified called one witness.
The case for the plaintiff was briefly: that he was a plaintiff in an action against the defendant in the High Court, while the defendant was a complainant in a criminal case on allegations of criminal defamation of character against the plaintiff at the Area Court. That the defendant lodged a report with the police that the plaintiff set fire on his vehicle parked in front of his residence on the 21st November, 1988. Consequently, the plaintiff was arrested, interrogated and detained for about two days. The Police later charged the plaintiff with an offence of mischief by fire before the Upper Area Court Yola. He was discharged on the 13th, February, 1989 on the ground that the prosecution failed to establish a prima facie case. The complaint was that at the time the report was made the defendant knew that the report he was making was false, and the false report was made maliciously and negligently. He alleged that the false and malicious allegations caused him great anxiety and ridicule. He suffered spite to reputation and business by the continuous act of the defendant out of spite, malice and hatred. The plaintiff therefore claimed ₦500,000.00 Damages.
The case for the defendant is that on 21st November, 1988 at about 3.00a.m unknown person(s) set fire on one of his vehicles parked in front of his residence. He agreed that he lodged a complaint thereof to the police. When asked if he suspected anyone, he answered in the negative. Whereof he was asked if he had any misunderstanding with any person howsoever, whereupon the defendant mentioned the plaintiff as his political rival. According to the defendant, the police on their own, thereafter arrested the plaintiff interrogated and prosecuted him.
The trial Judge after reviewing all the evidence adduced was satisfied that there was prima facie absence of reasonable and probable cause, that the prosecution was instituted by actual malice on the part of the defendant and that the prosecution was determined in favour of the plaintiff. Thus the plaintiff has established prima facie malicious prosecution and defamation of character. He awarded the sum of ₦20,000.00 damages to the plaintiff against the defendant.
The defendant appealed against the decision on one original, ground of appeal.
1. Whether from the evidence adduced, the plaintiff/respondent proved defamation of character and malicious prosecution against the defendant/appellant.
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 IS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. The issue would be resolved by a careful consideration of the pleadings and evidence adduced by both parties. It is trite law that a party cannot lead evidence not raised in his statement of claim unless raised by the defence. The respondent and PW4 maintained that they overheard the appellant instruct the police not to grant bail to the respondent while he was in police custody. Nowhere was it pleaded in the statement of claim. It was evidence of fact that goes to no issue and should be disregarded: See Aniemeka Emegokwe v. James Okadigbo (1973) 4 S.C. p. 113 and George and Ors v. Dominion Flour Mills Ltd. (1963) 1 All NLR p. 71, (1963) 1 SCNLR 117.
ii. It is true that appellant’s vehicle was destroyed by fire set by unknown persons. He suspected the respondent and reported the matter to the police charged with the responsibility to investigate criminal complaints. It is also evident that the police investigated and decided to charge the respondent of a crime of mischief by fire. He left the police the freedom of action to charge or not: See Payin and anor v. Aliuah 14 WACA 267. I venture to say here that the appellant will not be liable on a mere suspicion that the respondent burnt his motor vehicle. What the appellant did was to put the police on enquiry to track the culprit. He was not actively responsible or instrumental in setting the law in motion.
iii. The onus rests on the plaintiff to prove that the defendant instituted the proceedings maliciously. He failed to discharge that burden. In the instant case the defendant had reasonable grounds for honestly believing that the plaintiff burnt his vehicle and the action therefore failed: See Seton v. Oshinbule (1949) 19 NLR 9. Where a person makes a complaint against another it is incumbent upon that person to have found the true facts before making the complaint. If the police after investigation decided to prosecute as in this case, they must have realised there is a likely chance he may be guilty of the offence. The plaintiff’s prosecutor is the person who set the criminal law in motion and in the instant case it is the police.
iv. The defendant made a complaint to the police that he did not know who committed the act. When asked if he suspected anyone, he answered in the negative. When further asked if he had any misunderstanding with any person, whereupon the defendant mentioned the name of the plaintiff. In any case the complaint laid by the defendant was that his vehicle was set on fire and he suspected the plaintiff. In the circumstances was the defendant justified in making the complaint to the police. I think so. The facts as known by the defendant at the time of making the complain amount to reasonable and probable cause. The learned trial Judge was therefore in error when he held at p.43 of the record that there was prima facie absence of reasonable and probable cause.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
In Abrath v. North Eastern Railway Co. (1883) L.R. 11 QBD 440 per Bowen L. J. held: ”That the proceedings on which he complains are instituted in a malicious spirit, that is from indirect and improper motive and not in furtherance of justice.”
In Balogun v. Amubikanhun (1989) 3 NWLR (Pt. 107) p. 18 per Belgore, JSC at page 26: “To prosecute in essence is to set in motion the law whereby an appeal is made to some person with judicial authority with regard to the matter in question and to be liable for malicious prosecution, a person must be actively instrumental in setting the law is motion. Merely giving information to the Police is not enough; that at best may lead to an action for false imprisonment if the police act on the information and make an arrest and prosecute successfully.” (See Clerk and Lindsell on Torts 15th Edition para. 1807 page 862).
In Usifo II v. Edo and Anor (1958) 3 FSC 59 (1958) SCNLR 109 the Supreme Court approved the definition of “reasonable cause” when it said that: “In order, therefore to determine the question of reasonable and probable cause, it is necessary first to find out what were the facts as known to the defendants at the time of making the charge and then decide whether these facts constitute reasonable and probable cause.”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
There are two other ingredients which a plaintiff has to prove in order to succeed in a claim for malicious prosecution: (a) That the prosecution was instituted maliciously; and (b) That the defendant acted without reasonable and probable cause. All these four ingredients above must be present for successful action for malicious prosecution, and the onus is always on the plaintiff to prove each and every one of them. – Okezie JCA. Garba v. Maigoro (1992)
It seems fairly well settled that in an action for malicious prosecution the plaintiff has to establish that the defendant was the prosecutor that he set the law in motion against him, that he was tried in a court of competent jurisdiction of criminal charges and only found not guilty and discharged; that the report against the plaintiff and his prosecution was without reasonable and probable cause. – Okezie JCA. Garba v. Maigoro (1992)
For a successful prosecution of malicious prosecution to succeed, all the four elements of the tort must be present and the onus is on the plaintiff to prove each and every one of them. – Okezie JCA. Garba v. Maigoro (1992)