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UAC of Nigeria PLC V. Prince O. O. Sobodu (CA/L/501/99, 26 Apr 2006)

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➥ CASE SUMMARY OF:
UAC of Nigeria PLC V. Prince O. O. Sobodu (CA/L/501/99, 26 Apr 2006)

by Branham Chima (LL.B.)

➥ SUBJECT MATTER(S)
Malicious prosecution;
False imprisonment;
General damages.

➥ CASE FACT/HISTORY
The facts of the case giving rise to the appeal are as follows:- The plaintiff/respondent (also hereinafter called “the respondent” was employed by the appellant as a sales clerk and he rose to become the Hardware Merchandise Controller before his employment. Before then, the appellant had discovered a fraud which took place in its hardware department of Kingsway Stores sometime before 13/6/85 whereby an amount over ₦800,000.00k was found to have been stolen. The appellant promptly reported the matter to the police and on 24/5/85; two plain-clothed policemen visited the respondent’s office where they thoroughly ransacked before they made him to take them to his residence at Surulere which they also searched. The two detectives subsequently took the respondent to Panti Police Station where they made him to make a statement after which he was detained for 3 days and he was released on 27/5/85. The said respondent was eventually arraigned in the Magistrate Court along with 15 others on charges of conspiracy, fraud and stealing. He was however discharged by the said Magistrate Court on 10/11/86. Upon his discharge and after some correspondences between his lawyer and the appellant who had terminated his appointment and refused to reinstate him, the said respondent instituted his action against the appellant claiming ₦1,000,000.00k (One million naira) damages for wrongful termination of his appointment and a declaration that he still held a pensionable appointment with the appellant. He also claimed another ₦1,000,000.00k (One million naira) for his unlawful arrest and detention by the police engineered by the appellant. After exchange of pleadings and at the conclusion of hearing at the trial court, judgment was delivered by the said court on 22/9/99. In the said judgment, the respondent was awarded ₦500,000.00 (five hundred thousand naira) as damages against the appellant for unlawful arrest and detention of the respondent. It is against this judgment that the appellant is now appealing in this court.

➥ ISSUE(S)
I. Whether the trial judge was right or justified in giving judgment on the claim for malicious prosecution rather than on that of false imprisonment?

II. Whether the trial Judge was right or justified in basing the measure or quantum of damages on the loss of reputation, or suffering of and human rights posture of the plaintiff while in the defendant’s employment?

➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED, IN PART]

↪️ ISSUE 1: IN APPELLANT’S FAVOUR.

[THE TRIAL JUDGE MADE OUT A DIFFERENT CASE FOR THE RESPONDENT/CLAIMANT THAN THAT WHICH HE SOUGHT
‘Finding by the learned trial Judge based on the respondent claim (e) which is the last claim of the said respondent not dismissed by the said learned trial Judge, he found the appellant liable for the tort of malicious prosecution which is different from that of false imprisonment and was therefore not claimed by the said respondent in paragraph (e) of his 3rd amended statement of claim (supra). This blunder or wrong finding by the learned trial Judge is contained at page 221 of the record where he stated thus: “However for allowing the complaint to the police to go on and culminated in the plaintiff being arraigned before the Chief Magistrate Court I believe there has been a malicious prosecution of the plaintiff.” He then went ahead to consider the meaning of malicious prosecution and concluded (at page 222) that:- “The plaintiff in this case is entitled to damages for the unlawful arrest and illegal detention by the police. This unlawful arrest and detention led to the prosecution of the plaintiff.” From the above quoted statements of the learned trial Judge, it is very clear that he has found for the respondent and against the appellant a relief in respect of malicious prosecution which is different from that of false imprisonment which he himself had found or held was the effect of the claim of the said respondent under paragraph (e) of the 3rd amended statement of claim. Thus, in effect, the learned trial Judge wrongly granted to the respondent a relief which he did not claim (as per his paragraph (e)). In this regard, I agree with and accept the appellant’s submission that the court does not or cannot make out a case for a party which the said party has not made out for himself and neither can the court grant to a party a relief which he has not claimed as happened in the present case in the above quoted parts of the judgment of the trial court – see Ekpenyong v. Nyong (supra); Iwunwah v. Iwunwah (supra); Adeniran v. Alao (supra); IMN Ltd. v. Nwachukwu (2004) 13 NWLR (Pt. 891) 543; PDP v. Taiwo (2004) 8 NWLR (Pt. 876) 656; and Ngige v. Achukwu (2004) 8 NWLR (Pt. 875) 383. It is therefore my humble view that by granting the respondent a relief based on malicious prosecution which the said respondent did not claim, the learned trial Judge has committed a grave error in law which has also led to a miscarriage of justice in the present case. It is also against the settled principle of law for the learned trial Judge to make a case for the respondent different from the case made out by the said respondent – see Archibong v. Ita (2004) 2 NWLR (Pt. 858) 590; Akintola v. Oyelade (1993) 3 NWLR (Pt. 282) 379; Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130, and Dzungwe v. Gbishe (1985) 2 NWLR (Pt. 8) 528.’

Available:  Tanko Mohammed Rajab & Anor. v. The State (2010) - CA

‘With the above distinction between the two heads of torts vis-a-vis the finding of the learned trial Judge that the respondents claim No (e) before the trial court was for false imprisonment, it was an error on his own part to turn round and hold the appellant liable to the said respondent for malicious prosecution. This is moreso when there is no evidence of instigation of the police by the appellant. It was also wrong for the court in the instant case to cast the burden of proof on the said appellant by requiring it to prove that it did not instigate the police to prosecute the respondent. This in my humble view is a wrong placement of the burden of proof and is contrary to Section 135 and 137 of the Evidence Act (Cap. 112) LFN 1990. Which places the burden of proof in civil cases on the party who asserts or who would have failed if no evidence is adduced – see Sarah v. SGB (1995) 1 NWLR (Pt. 371) 325 at 344-345; UBN Ltd. v. Penny-Mart Ltd. (1992) 5 NWLR (Pt. 240) 228 at 242; Ibori v. Agbi (2004) 6 NWLR (Pt. 868) 78 SC and SBN Plc. v. Opanubi (2004) 15 NWLR (Pt. 896) 437.’

MALICIOUS PROSECUTION WAS NOT PROVED AGAINST THE APPELLANT/DEFENDANT
‘In the instant case, the only element or ingredient that was established by the respondent is No.(b) in that it can be said that as a result of the prosecution of the said respondent by the police (rather than by the appellant) the former was discharged – though not acquitted. All the other ingredients for liability in the tort of malicious prosecution as adumbrated above (i.e. Nos. (a) (c) and (d) were not proved or established by the respondent at the trial court. Thus the appellant who merely made a report or complaint of theft in its hardware department without more, and without any follow up or instigation on the police or mentioning the name of the respondent as a possible or one of the culprits cannot be said or held as setting the law in motion against the said respondent leading to the latter’s prosecution. The police acted on their own volition in the arrest, detention or arraignment of the respondent before the Magistrate Court. The learned trial Judge has made a finding to this effect when he stated (at page 220) in his judgment as follows:- “…Under the Police Act Section 4, the Police according to the defence counsel were just performing their duty by arresting and interrogating the plaintiff on an allegation of crime. I believe and agree with the defence to that extent, moreso when the Police are not a co-defendant in this case…” Secondly, it cannot be said that the complaint of the appellant which led to the arrest and prosecution of the respondent was without a reasonable or probable cause when there was a fraud or theft in its hardware department which caused it a substantial loss or damage. Thirdly, there is no proof of malice against the appellant in making the complaint. Once it is accepted that the said appellant had a just reasonable or probable cause in making its complaint of fraud or theft to the police and that the latter’s subsequent acts of arresting detaining, interrogating, or prosecuting the respondent were done independently without any instigation from the appellant, the ingredient of malice (in law or constructive) cannot be implied against him as wrongly done by the learned trial Judge. The learned trial Judge should have accepted the evidence of DW1 who was the only witness who testified on the absence of malice, or instigation on the part of the appellant. I therefore agree with the appellant’s submission that the decision in Mandillas and Karaberies Ltd. v. Apena (supra), is still a good law on the point as far as Nigerian Courts are concerned and cannot be overruled by any English authority or be treated as per incuriam merely because the House of Lords has given or made a dictum stating the contrary. If any thing, that foreign decision can only have a persuasive effect on our courts which under the doctrine of judicial precedent are bound by the decision of the apex court (the Supreme Court). Thus it is only the Nigerian Supreme Court that can overrule itself or depart from its earlier decision in Mandillas and Karaberis Ltd. v. Apena (supra) – see Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116.’]
.
.
↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.

[THE DAMAGES GRANTED ARE GOOD
‘From the respondents claim under paragraph (e) of his statement of claim and from the assessment of the damages awarded by the learned trial Judge in his judgment (at pages 222-223) it is clear that the damages so awarded was a general damages which was described as flowing from the event. It is trite that such general damages which flow from the event (i.e. from the defendant’s act) are generally presumed by the law and they need not be pleaded or proved. It is also the law that such damages and their award or assessment are based on the discretion of the court which like all other discretion are required to be exercised judiciously and judicially. Where there is an appeal against the exercise of such discretion by the trial court, an appellate court is normally reluctant in interfering with the trial court’s bona fide exercise of discretion unless in some exceptional cases which include:- (a) Where the exercise of discretion by the trial court was done arbitrarily rather than judiciously or judicially. (b) Where the trial court’s exercise of discretion was based on a wrong principle of law. (c) Where such an exercise of discretion was not based on the evidence on record and was therefore perverse. (d) Where in its exercise of discretion the trial court took into account or considered irrelevant matters or disregarded relevant matters. (e) Where the lower court’s exercise of discretion is erroneous that no reasonable tribunal would have made such an erroneous exercise of discretion – see Ziks Press Ltd. v. Ikoku (1951) 13 WACA 188; PDP v. Taiwo (supra); Bulama v. FRN (2004) 12 NWLR (Pt. 888) 498; CGC (Nig.) Ltd. v. Saba (2004) 10 NWLR (Pt. 882) 658; Balogun v. Amubikahun (supra) at p. 38 of the report; Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623 a 636 637, and William v. Daily Times Nigeria Ltd. (1990) 1 NWLR (Pt. 124) 56. The above principles and authorities on the exercise of discretion by the trial court also apply to cases on the award or assessment of general damages by the trial court as in the instant case – see Barau v. Choba (supra); at p. 373 of the report); Williams v. Daily Times Nig. Ltd. (supra); UBA Plc. v. BTL Industries Ltd. (2004) 18 NWLR (Pt. 904) 166. In view of my above consideration of the appellant’s issue No. 3. I am inclined to prefer the respondent’s submission on the issue. Thus the appellant has not proffered any good or convincing reasons or ground for this court to interfere with the assessment of damages made by the learned trial Judge. Consequently the issue and its related ground of appeal must be resolved against the said appellant and in favour of the respondent.’]
.
.
.
✓ DECISION:
‘On the whole and in view of my resolution of the 1st and 2nd issues of the appellant which are the main issues in this appeal in its favour, its appeal has succeeded and should be allowed. I accordingly, hereby allow the appeal which I find meritorious. The judgment of the trial High Court dated 31/8/99 and the damages awarded therein are hereby set aside and the respondent’s action before the said trial court is hereby dismissed. I asses the costs of this appeal at ₦10,000.00 which I award in favour of the appellant and against the respondent.’

Available:  Independent Television/Radio v. Edo State Board of Internal Revenue (2014) - CA

➥ FURTHER DICTA:
⦿ DIFFERENCE BETWEEN MALICIOUS PROSECUTION AND FALSE IMPRISONMENT
Although the two heads of tort of false imprisonment and malicious prosecution may sound similar and are interrelated in the sense that they are both bordered in the making of a false complain or charge against the plaintiff which may lead to his arrest or detention, they are however quite different even from their names. Where a complaint is made to a police officer and he makes an arrest or detention, the party making the complaint or charge is only for false imprisonment. On the other hand, if the complaint or charge is made before a Magistrate or a judicial officer who issues a warrant of arrest or a summons then the liability will be for malicious prosecution. However where a complaint or charge is made to the police and the defendant also instigates them to arrest the person complained against and make a formal charge against him before a Magistrate and prosecute him as in the instant case, then the liability is also for malicious prosecution because the police cannot be said to be allowed the freedom of action and the party making the complaint will be more damnified if the charge subsequently proves to be fabricated or if the person complained against is ultimately discharged by the Magistrate – see David Inneh v. Igumaka Aruegbon (1952) 14 WACA 73 at 74; Chief Ehiman, Payin and Anor v. Adiaba Aliuah and Anor (1953) 14 WACA 267; and Balogun v. Amubikahun (1989) 3 NWLR (Pt. 107) 18 at 30. — Adamu JCA.

⦿ INGREDIENTS OF MALICIOUS PROSECUTION
The ingredients to be established for the tort of malicious prosecution have been aptly pronounced upon by our Nigerian superior courts (including the Supreme Court) and we do not have to cross the sea and go to the English or European Courts to find them. It has been settled that for an action for malicious prosecution to succeed, the plaintiff must plead and prove the following: (a) That he was prosecuted by the defendant, that is the defendant set in motion against the plaintiff, the law leading to a criminal charge. (b) That as a result of the prosecution, the plaintiff was discharged and acquitted. (c) That the prosecution by the defendant was completely without reasonable and probable cause. (d) That the prosecution was a result of malice by the defendant against the plaintiff. All the above ingredients must be proved concurrently in each case in order to establish liability for malicious prosecution – See Balogun v. Amubikahun (1989) 3 NWLR (Pt. 107) 18 at P. 26; Barau v. Chaba (1995) 1 NWLR (Pt. 371) at 357; Horst Sommer and 2 Ors. v. Federal Housing Authority (1992) 1 SCNJ 73 at 80; (1992) 1 NWLR (Pt. 219) 548; Abdullahi v. Raji (supra); and Mandillas and Karaberis Ltd. v. Apena (supra). — Adamu JCA.

Available:  Lt. Col. Shehu Ibrahim (Rtd) v. Mercy Ibrahim (2006)

⦿ GENERAL DAMAGES ARE BASED ON THE DISCRETION OF THE COURT
From the respondents claim under paragraph (e) of his statement of claim and from the assessment of the damages awarded by the learned trial Judge in his judgment (at pages 222-223) it is clear that the damages so awarded was a general damages which was described as flowing from the event. It is trite that such general damages which flow from the event (i.e. from the defendant’s act) are generally presumed by the law and they need not be pleaded or proved. It is also the law that such damages and their award or assessment are based on the discretion of the court which like all other discretion are required to be exercised judiciously and judicially. Where there is an appeal against the exercise of such discretion by the trial court, an appellate court is normally reluctant in interfering with the trial court’s bona fide exercise of discretion unless in some exceptional cases which include:- (a) Where the exercise of discretion by the trial court was done arbitrarily rather than judiciously or judicially. (b) Where the trial court’s exercise of discretion was based on a wrong principle of law. (c) Where such an exercise of discretion was not based on the evidence on record and was therefore perverse. (d) Where in its exercise of discretion the trial court took into account or considered irrelevant matters or disregarded relevant matters. (e) Where the lower court’s exercise of discretion is erroneous that no reasonable tribunal would have made such an erroneous exercise of discretion – see Ziks Press Ltd. v. Ikoku (1951) 13 WACA 188; PDP v. Taiwo (supra); Bulama v. FRN (2004) 12 NWLR (Pt. 888) 498; CGC (Nig.) Ltd. v. Saba (2004) 10 NWLR (Pt. 882) 658; Balogun v. Amubikahun (supra) at p. 38 of the report; Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623 a 636 637, and William v. Daily Times Nigeria Ltd. (1990) 1 NWLR (Pt. 124) 56. — Adamu JCA.

⦿ CLAIM FOR FALSE IMPRISONMENT, IT WILL NOT LIE WHERE A PERSON MERELY GAVE INFORMATION
Put in common legal parlance, the respondent’s claim against the appellant was for damages for the tort of false imprisonment. False imprisonment involves the unlawful, illegal and unjustifiable restraint of a person’s right and liberty to move about freely. In cases that usually end up in the courts, the wrong of false imprisonment consists of acts of arrest and detention or imprisonment of a plaintiff without lawful justification by the police or other law enforcement agencies on complaints or information received in course of their duties. As demonstrated in the lead judgment, the position of the law is that it is not enough for a plaintiff in a claim for false imprisonment to plead and provide evidence that the defendant merely made a report against him to the police in which his name was mentioned as a suspect, but must also plead and establish that there was no reasonable and probable cause for making the report. In other words, a plaintiff has the legal burden of showing that the report made by a defendant is false, frivolous, without legal foundation and therefore actuated by malice. See Bayol v. Ahemba (1999) 7 SC (Pt. 1) 92; (1999) 10 NWLR (Pt. 623) 381; Iyalekhue v. Omoregbe (1991) 3 NWLR (Pt. 177) 94; Balogun v. Amubikahun (1989) 3 NWLR (Pt. 107) 18 and Nwangwu v. Duru (2002) 2 NWLR (Pt. 751) 265 in addition to the cases cited on the issue in the lead judgment. Accordingly a claim for the wrong of false imprisonment will not lie and cannot succeed against an individual or a defendant who without more, merely gave information or made a report which led the police, on their own initiative and in the course of investigations, to arrest a suspect. The position is the same where a particular person/s is/are named in the report or information as the person/s suspected to have committed the offence complained about in the report or information and that person/s is/are arrested subsequently and detained by the police on their own volition. See Mandillas And Karaberis v. Apena (1969) 1 ANLR 390 at 344; Nwadinobi v. Botu (2000) 9 NWLR (Pt. 672) 220 at 228, (2002) FWLR (Pt. 96) 450;  S.P.D.C. (Nig.) Ltd. v. Olanrewaju (2002) 16 NWLR (Pt. 792) 38; Me Laren v. Jennings (2003) 3 NWLR (Pt. 808) 470 and Afribank (Nig.) Plc v. Onyima (2004) 2 NWLR (Pt. 858) 654. — Garba JCA.

➥ LEAD JUDGEMENT DELIVERED BY:
Adamu, JCA.

➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)

➥ MISCELLANEOUS POINTS

➥ REFERENCED (LEGISLATION)

➥ REFERENCED (CASE)

➥ REFERENCED (OTHERS)

End

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