⦿ CASE SUMMARY OF:
Balogun v. Amubikahun (1989) – SC
by PipAr-RAshid
⦿ LITE HOLDING
The complainant, having made a false statement, maliciously, and thus causes a judicial act like the issue of arrest warrant 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.
The appellant clearly manifested malice and there is no mitigating aspect of this malice to justify any interference with the decision of the two lower courts.
⦿AREA OF LAW
– Law of Tort
⦿ TAG(S)
– Malicious prosecution.
– Reasonable cause.
⦿ PARTIES
APPELLANT
Balogun
v.
RESPONDENT
Amubikahun
⦿ CITATION
(1989) JELR 80236 (SC)
⦿ COURT
Supreme Court
⦿ LEAD JUDGEMENT DELIVERED BY:
Belgore, J.S.C.
⦿ APPEARANCES
* FOR THE APPELLANT
– Mr. Abiose.
* FOR THE RESPONDENT
Chief Esan.
AAA
⦿ FACT (as relating to the issues)
The appellant is a legal practitioner based at Ibadan. In his private capacity, he has a land dispute with the respondent in one of the Courts in that city. Sometime in March, 1979, with the land case still pending in Court, the appellant went to the police post at Orita Challenge, Ibadan, and lodged a complaint that the respondent, Alhaji Busari Amubikanhun, a butcher, has employed one Madam Olufunmilayo Adekunle to kill him and steal his dresses and transistor radio.
It is apparent that he created the impression that the said Olufunmilayo Adekunle was a witch and that her witchcraft would be employed to cause his death. It was alleged that the woman gained entry into the appellant’s house and actually removed a transistor radio and some dresses before she was caught. After being held by the appellant and perhaps neighbours, she confessed that she was sent on a mission by the respondent to kill the appellant. The appellant took the woman to the police at Orita Challenge. It was already dark, perhaps after 2100 hours. That was on 6th March, 1979. The appellant got the woman locked up at the police station.
Thereafter, he took the police to the house of the respondent and got him arrested, though he claimed later that he only acted as a pointer and offered police a lift in his car to affect the arrest of the respondent. At the police station, the respondent was locked up, the appellant making his presence felt at that place and was scaring away those ready to stand surety for the respondent so that he might be released on police bail. He told one of such persons that the respondent was a murderer and that nobody should risk standing surety for him. The respondent thus slept in the police cell that night and was only released on bail on the 7th March, 1979.
The respondent was finally taken before a Chief Magistrate Court and tried jointly with Olufunmilayo Adekunle. They were discharged and acquitted of the criminal charge. It is noteworthy that the appellant not only gave evidence before the Magistrate Court, but went further to allege that when Adekunle entered his house and was discovered stealing, “she attempted to change into a cat” and that he (appellant) and others around saw “her growing a tail like a cat’s.” It was when she could no longer change completely into a cat that she confessed her mission. Whereas, at her joint trial with the respondent, the woman confessed that she was tutored into the act of implicating the respondent by the appellant and that she was paid ₦300.00 by the appellant for this purpose. The magistrate had no difficulty in disbelieving the case for the prosecution and believed the trial was based on fake and malicious accusation by the appellant in conspiracy with Adekunle.
This led to the action in the High Court by the respondent for malicious prosecution which was successful and was upheld by the Court of Appeal consequent upon which this appeal was lodged.
⦿ ISSUE(S)
1. WHETHER OR NOT THE APPELLANT IS LIABLE FOR MALICIOUS PROSECUTION?
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: DISMISSED, WITH N500 COST AGAINST THE APPELLANT]
1. THE SUPREME COURT RESOLVED ISSUE 1 AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
RULING:
i. As to the requirement for reasonable and probable cause, absence of which the plaintiff has to prove in the instant case, he has shown that no probable or reasonable cause existed for the appellant to lodge the complaint against him. The reasonable and probable cause to my mind entails the defendant having in his possession as a reasonable and sane person, a set of facts which to an ordinary man would lead to the conclusion that the plaintiff has committed a criminal offence. The belief in 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 every reasonable person to believe the plaintiff has committed an offence. The set of facts and circumstances must lead a prudent man to the conclusion that the plaintiff is probably guilty of the offence he is accused of committing (Herniman v. Smith (1938) A.C. 305). There may be reasonable ground in some cases which may not necessarily lead to conviction in which case there is probable and reasonable cause as to vitiate proceedings for malicious prosecution.
ii. To say the least, the reasonable or probable excuse to be relied upon by the appellant was punctured by the fact that Mrs. Adekunle gave evidence of how she was asked to implicate the respondent and that the plaintiff paid her ₦300.00 for this conspiracy. The set of facts at the disposal of the appellant, as a professional man, beat any reasonable person’s imagination. Here is a lawyer, with his learning and his eyes wide open, talking of seeing perhaps a witch in the person of Mrs. Adekunle, who was purportedly trying to turn herself into a cat by first growing a tall. With the confession of the truth in court by this woman, there is little wonder the appellant has made himself a laughing stock.
iii. Certainly, the appellant wanted by any means, to harass the respondent and frighten him away from the land case he had with him. That was his malice. He knew ab initio that he was making false criminal allegation against the respondent. He was actuated by improper and indirect motives because he knew he was making false allegation and his desire: was for persecution and not prosecution for the right and proper ends of justice. What he had was not bona fide but malus animus. The proper motive for all prosecution is not to punish an innocent man, it is rather a desire to secure ends of justice. The absence of belief of the truthfulness of his complaint against the plaintiff by the defendant could easily be inferred from the circumstances of the case. An example is this case in hand where the plaintiff cooked up a story, sold it to a woman, Mrs. Adekunle, and used it to prosecute the respondent, a completely innocent person; this is a strong case of manifest malice.
⦿ REFERENCED
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
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⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
* PROCEDURAL
Where there are concurrent findings of facts in the courts below, i.e. the High Court and the Court of Appeal, the Supreme Court will only interfere with those findings if it can be shown on the record that those findings are not justified by the evidence and that the error in coming to those findings had led to a miscarriage of justice. – Obaseki, JSC. Balogun v. Amubikahun (1989)
* SUBSTANTIVE
In an action for malicious prosecution, the plaintiff must plead and show by evidence that he was prosecuted by the defendant. In this regard, it must be shown clearly that the defendant set in motion against the plaintiff, the law leading to a criminal charge. Secondly, as a result of the prosecution aforementioned the plaintiff was discharged and acquitted, in short that the prosecution was determined in the plaintiffs favour. Thirdly, the plaintiff must plead and satisfy the court by evidence that the prosecution by the defendant was completely without reasonable and probable cause. Finally that the prosecution was as a result of malice by the defendant against the plaintiff. All the four elements 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. 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 in 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 unsuccessfully. – Belgore, JSC. Balogun v. Amubikahun (1989)
For the successful action of malicious prosecution, there must be evidence of the criminal case ending in favour of the plaintiff; otherwise the fact that a conviction was handed down on him precludes his right to sue. – Belgore, JSC. Balogun v. Amubikahun (1989)
The party making the charge is not liable to an action for false imprisonment because he does not set a ministerial officer in motion but a judicial officer. However, where a person ostensibly makes a charge to the police as in the instant appeal and he instigates the police to arrest the person, makes a formal charge against the person, takes him before the magistrate and prosecutes him, he has failed to leave the police the freedom of action that would have protected him from malicious prosecution. He is more damnified where the charge is fabricated and concocted and the principal witness suborned. – Obaseki, JSC. Balogun v. Amubikahun (1989)
Absence of reasonable and probable cause is usually evidence of malice. – Nnamani, JSC. Balogun v. Amubikahun (1989)
If a person simply makes a report to a police officer, a ministerial officer, and the police using their discretion decide to arrest, charge and prosecute the suspect the person making the report, if liable at all will be liable for false imprisonment on the ground that he set in motion a ministerial officer and not a judicial officer. He could only have been liable for malicious prosecution if he set in motion the action of a judicial officer. – Nnaemeka-Agu, JSC. Balogun v. Amubikahun (1989)
