⦿ CASE SUMMARY OF:
Madam Bike Fadeyi & Anor v. Mufutau Owolabi & Anor (2014) – CA
⦿ LITE HOLDING
A defective process cannot sustain a suit.
For malicious prosecution to be proved, it must shown by the Plaintiff that: i. There was no probable cause for the report by the defendant. ii. The defendant set the law in motion against the plaintiff. iii. the criminal suit ended in favour of the plaintiff. iv. damage was caused to the plaintiff as a result of the prosecution.
⦿AREA OF LAW
– Law of Torts (Malicious Prosecution)
– Malicious Prosecution.
Madam Bike Fadeyi & Anor.
Mufutau Owolabi & Anor.
(2014) JELR 40078 (CA)
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Cordelia Ifeoma Jombo-ofo, J.C.A.
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
1st appellant was building on a piece of land sold to him by the late 3rd Appellant of the Oluwa Abodunrin family when on 10th July, 2001, the respondents who are members of another branch of the family of late Alhaji Idris Shittu came upon him and challenged and warned him to stop work on the land.
Following the act of the respondents on the land, the Appellants lodged complaint with the police consequent upon which the respondents were charged before an Oshogbo Chief Magistrate’s Court for the offence of malicious damage to property i.e. the building. At the end of the trial, the respondents were discharged and acquitted on the count. Aggrieved by the conduct of the appellants, the respondents sued the appellants before the Oshogbo High Court.
The plaintiffs at the trial court vide their writ of summons and statement of claim sought the following relief against the defendants: The sum of N2 Million Naira being general damages for unlawful arrest, detention, indignity to the person, public disgrace and Malicious Prosecution of the plaintiffs by the defendants at Osogbo between 10/07/2001 and 28/11/2002.
Parties exchanged pleadings and the case proceeded to trial in the course of which the Plaintiffs called three (3) witnesses and the defendants testified in their defence as 1st DW and 2nd DW respectively. At the close of trial parties filed and exchanged written addresses.
In a considered judgment delivered 6th February, 2007, the trial Judge entered judgment in favour of the plaintiffs and against the defendants jointly and severally. Being dissatisfied with the decision, the defendants as Appellants herein have appealed to this court.
1. SUO MOTO: That the writ of summons and the statement of claim that initiated the suit that led to the present appeal was signed by a person not qualified to be a legal practitioner. What should be its effect?
2. Whether the lower court was right in holding the respondents have successfully establish (sic) against the Appellants a case of or the ingredients of the tort of malicious prosecution, as required by law, and thus succeeding on their claim.
3. Whether the lower court has before it uncontroverted and credible evidence of any damage suffered by respondents which justifies the award of the excessive sum of N300,000 as damages in respondents’ favour and against the appellants.
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: STRUCK-OUT; THE ORIGINATING PROCESS AT THE TRIAL COURT WAS DEFECTIVE]
1. THE COURT HELD THAT A NON-LEGAL PRACTITIONER CANNOT SIGN A COURT PROCESS.
i. A look at the writ of summons issued in this case shows that it was signed by “Yemi Ajibola and Co.” while the statement of claim dated 10th March, 2003 was signed by “A. AJIBOLA and Co.” respectively. The rule with regard to the signing of initiating processes such as the writ of summons and the statement of claim as in the current circumstances is that they are to be signed by legal practitioner recognized by law or a person entitled to practice as a Barrister and Solicitor either generally or for the purpose of any particular office or proceeding. This principle is captured in sections 2(1) and 24 of the Legal Practitioners Act, Cap 207, Laws of the Federation, 1990.
ii. The combined effect of the provisions of sections 2(1) and 24 of the Legal Practitioners Act, (supra) is that for a person to be qualified to practice as a legal practitioner he must have his name on the roll at the Supreme Court and without which he cannot engage in any form of legal practice in Nigeria. It does not say that his signature must be on the roll but his name. It follows from the foregoing that “Yemi Ajibola and Co.” and or “A. Ajibola and Co.” as the case may be is/are not legal practitioner(s) as recognized by law.
iii. It seems to me in all these that the apex court took into consideration the respective places of technical justice and substantial justice before it reached its hallowed decisions in the cases of NWEKE v. OKAFOR (supra) as well as OKETADE v. ADEWUNMI (supra). I shall therefore remain guided by these authorities in matters relating to the signing of processes meant for the court by legal practitioners whose names appear in the roll of the Supreme Court. The writ of summons and the statement of claim upon which the action that led to this Appeal was initiated, are obviously incompetent having been filed in violation of sections 2(1) and 24 of the Legal practitioners, Act, (supra). The law is that only persons enrolled on the Supreme Court’s Register as qualified to practice law in Nigeria can sign such initiating processes for use in court as opposed to being signed by firm of legal practitioners. I shall therefore on this premise order a striking out of the said Writ of Summons and the Statement of Claim and they are so struck out.
2. ISSUE 2 IS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. Premised on this principle, would it be said that the appellant at the time of her complaint to the police believed her complaint to be true and correct. I dare not hold so. This is because in her evidence at the lower court on 4th April, 2006 she said:
“I instructed the bricklayer to continue working on the building project but the Plaintiffs went to the site and destroyed the building materials like the window and the door frames. That was what I was told, by my bricklayer, I was not there. When the 2nd Defendant reported to me about the removed of (sic) windows and door frames, i reported to the police who arrested the 3rd defendant and 3rd defendant in turn informed the Police about the activities of the 1st and 2nd plaintiffs which resulted in the removal of the door and window frames.” [Emphasis mine] (See presumably page 28 of appellants’ poorly paginated record, lines 6-10].
From her evidence above it is obvious that the Appellant did not go to the site/scene to ascertain whether the information she got from her bricklayer i.e. the DW1 was correct or not. Thus, the complaint she laid before the police not only bordered on hearsay given that she did not see things for herself first but also premised on malice. For failing to ascertain the authenticity of the information she was fed with, the 1st respondent could not be said to have believed in the correctness of her complaint to the police in the first instance. Rather than first check things for herself the first respondent was rather moved by malice which had to do with the existing dispute she was having over the land with the appellants. To further buttress this point the PW3 Inspector Jide Adewumi who was the Investigating Police Officer (IPO), vide Exhibit C testified that at his inspection of the building in the presence of both parties, he observed that the building was not damaged. The end result of their evidence is that the appellant as it were fed the police with false information knowing same to be false.
ii. In the case herein, though the respondents in their evidence said that at the police station, the appellants insisted that the respondents damaged and destroyed the building of the 1st appellant, yet there is no evidence by the said respondents to show that the police was coerced by the said appellants to charge the respondents to court. It then follows that in the instant case it was at the pleasure or initiative of the police that the respondents were charged to court. Unlike in Adefunmilayo, the appellants herein though involved in setting the law in motion but they cannot be said to have been actively involved in setting the law in motion against the respondents. This is because the police is under no legitimate obligation to take directive talk less instructions from the citizenry as to who to charge to court and who not to so charge. All that is expected of the citizen is to lodge his complaint, cooperate with the police in their investigation of the complaint and then leave the police to determine whether or not to charge the suspect to court. According to the PW3 (IPO) in his evidence they do not charge frivolous cases to court. If after the IPO’s visit to the where he found contrary to the appellant’s complaint that the respondents damaged her building under construction, and he saw that there was no damage to the building, yet he still charged them to court for malicious damage, then the PW3 had something up his sleeves. (See page 238 of the Record.) However, in all these I think that despite the complaint of damage to her building made by the first appellant to the PW3 as the IPO yet it was out of the said PW3’s initiative as opposed to coercion or pressure by the said appellants that the charge was preferred in court. The bottom line here is that there was indeed absence of reasonable and probable cause for the prosecution by the appellants. The point is that the complaint was in the first instance baseless being that it originated on a platter of an unfounded hearsay. With investigations duly carried out, the buck of the decision whether to charge to court or not shifted on to the PW3 as the Investigating Police Officer. It was for him having found that the complaint lacked substance to have dropped the case at that stage but out of his own volition he chose to prosecute the respondents for reasons best known to him. Contrary to the submission of the learned counsel for the appellants, the lower court was correct when it came to the conclusion that there was no reasonable or probable cause for the respondents’ prosecution.
3. ISSUE 3 IS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In the instant appeal, the 1st respondent as the PW2 in his evidence at the lower court testified as to how they were handcuffed from the Oja Oba’s police station and made to trek for about two poles before they could board a taxi to the scene of investigation. The appellants were present and absorbing the humiliation and degradation of the respondents at the time. The respondents, though they had pleaded with the police not to lead them out handcuffed as they are important personalities in their town but the police did not pay heed to their plea. After receiving this piece of humiliation and at the end of their criminal ordeal the respondents were discharged and acquitted thus providing them with the platform for a successful action in malicious prosecution. General damages are naturally and undoubtedly accruable to them in the circumstances. The respondents particularly the 1st had no need to even go as far as pleading and giving evidence of losing his party’s councillorship nomination, likewise the 2nd Respondent who on his part pleaded and testified as to how his corn-milling business suffered. It seems to me so because these are factors I feel should rightly be considered in the award of special damages as opposed to general damages. Indeed the respondents from every indication suffered damages by reason of the prosecution which I hold to have been occasioned out of malice. They are therefore entitled to the award of general damages.
⦿ ENDING NOTE BY LEAD JUSTICE – Per – Jombo-Ofo, J.C.A.
Now having earlier found in this judgment that the processes which gave birth to the trial and judgment appealed against are incompetent, it follows that the resultant judgment is in itself a nullity. It is now an elementary knowledge that one cannot put something on nothing and expect it to stand. Recourse is had to the authorities of MACFOY v. UAC (2006) 16 WRN 185; N.N.B. PLC. v. DENCLAG LTD. (2005) 4 NWLR (Pt.916) 549 at 573; MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341; and EFIOK v. GOVT. OF CROSS RIVER STATE (2010) LPELR-4078 (CA).
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
OKETADE v. ADEWUNMI (2010) 8 NWLR (1195) 63, 74 D-G, per Niki Tobi, JSC, the Supreme Court held thus: “There is a big legal difference between the name of a firm of legal practitioners and the name of a legal practitioner simpliciter. While the name of OLUJIMI and AKEREDOLU is a firm with some corporate existence, the name of a legal practitioner is a name qua solicitor and Advocate of the supreme court of Nigeria which has no corporate connotation. As both carry different legal entities (sic) in our jurisprudence of parties, one cannot be a substitute for the other because they are not synonyms. It is clear that Olujimi and Akeredolu is not a name of a legal practitioner. I say this because there is no such name – in the roll of legal practitioners and that violates sections 2(1) and 24 of the Legal Practitioners Act. By section 2(1) of the Act, the only person in the profession wearing his professional name to practice law in Nigeria is a legal practitioner in section 24 of the Act and it does not include Olujimi and Akeredolu. This to me is not a technicality that can be brushed aside. It is fundamental to the judicial process as it directly affects the legal processes that brought this case on Appeal…”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
Defective service of process is not the issue at stake in the instant case rather defective process is the issue. There is a huge difference between the two. While one can be viewed as a procedural irregularity which is curable, the other is viewed as a fundamental error which touches on the justice of the case and as such incurable. – Jombo-Ofo, J.C.A. Fadeyi v. Owolabi (2014)
It seems to me and I so hold that two wrongs can never make a right. Thus, what is wrong is wrong and what is right is right. As it stands, neither “Yemi Ajibola and Co.” or “A. Ajibola and Co.” and/or “J. O. Olubiyo and Co.” or “Chief J. O. Olubiyo and Co.”, is listed on the roll of the Supreme Court as qualified to carry out legal practice in Nigeria. They are names of firms as opposed to names of human individuals as envisaged by the Legal Practitioners Act (supra). Granted that there exists a conflict between the provisions of the then applicable Oyo State High Court (Civil Procedure) Rules and that of the Legal Practitioners Act, it is natural that the provisions of the former shall to the extent of the said inconsistency with the latter fail. By the year 2003 when the writ of summons and statement of claim in view originated, the Legal Practitioners Act, Cap 207, Laws of the Federation, 1990 was already in force for due observation. Thus, that the general practice at the time as is being suggested by the learned counsel for the respondents, was for legal practitioners to endorse their processes meant for the use of the court with “& Co.” after their names is neither here nor there. This is to say that the law forbidding that was already in place only that it was advertently or inadvertently not being observed. To my mind general but wrong application of the law cannot render such practice valid. Be that as it may, such a general but wrong practice by legal practitioners has been labeled a fundamental error as opposed to being a mere irregularity by OGBUAGU, JSC in Ogundele v. Agiri (supra). – Jombo-Ofo, J.C.A. Fadeyi v. Owolabi (2014)
It is trite that the four ingredients for proving malicious prosecution of the respondents as laid down in Alhadi v. Allie (supra); and Mandillas and Karaberies v. Lamidi Apena (supra) are: a) The absence of reasonable and probable cause for their prosecution. b) That the appellant instigated their prosecution with malice. c) The termination of the criminal proceedings in favour of the respondent. d) That the respondent suffered damages by reason of the prosecution. – Jombo-Ofo, J.C.A. Fadeyi v. Owolabi (2014)
I am not aware that the law has made any provision for a distinction as to whether the discharge and acquittal are to be grounded on merit on the one hand or on technicality as the case be for one to succeed in the action for malicious prosecution. It therefore follows that the court has to make do with the fact that the respondents were simply discharged and acquitted at the end of the criminal trial. – Jombo-Ofo, J.C.A. Fadeyi v. Owolabi (2014)
Be that as it may, either way whether discharged and acquitted as made in the circumstance, or striking out as I think it ought to be, the obvious fact is that the respondents were not convicted at the end of the trial. I am saying that in addition to the ingredient of reasonable and probable cause, for malicious prosecution to fail, the appellant must, also establish that the criminal trial ended in a conviction of the Respondents. Hence, even if there existed a reasonable and probable cause for criminal prosecution, if at the end of the trial, the respondent for one reason or the other is not convicted, that alone can still not provide for a successful action for malicious prosecution. In other words, as they were not convicted at the end of the day, the respondents were bound to succeed in their action for malicious prosecution, since there existed ab initio, an absence of reasonable and probable cause to prefer the criminal charge against them. – Jombo-Ofo, J.C.A. Fadeyi v. Owolabi (2014)
It is trite law that where the respondents have not suffered any damages, the court will not award any costs as damages. See Berry v. British Transport Co. (1962) 1 Q.B.306. However where they are shown to have suffered as a result of the wrong complained about, that is malicious prosecution as in the instant case general damages are awarded as a way of assuaging the pains suffered by the respondents. General Damages need not be specifically pleaded since it arises by inference of law and need not be proved by evidence. It is left for the trial Judge to make his own assessment of the quantum of damage to award in every given circumstance. – Jombo-Ofo, J.C.A. Fadeyi v. Owolabi (2014)