IKOKU V. OLI

FULL JUDGMENT

FEDERAL SUPREME COURT OF NIGERIA

Friday, March 30, 1962

FSC. 373/1960

 Before Their Lordships

UNSWORTH, FEDERAL JUSTICE 
TAYLOR, FEDERAL JUSTICE 
BAIRAMIAN, FEDERAL JUSTICE

 Between

BENSON IKOKU

Appellant

And

ENOCH OLI

Respondent

UNSWORTH, F.J. (Delivering judgment of the Court): This is an appeal from a decision of the High Court of the Eastern Region awarding to the respondent as plaintiff, the sum of  £705-10s-0d in a claim for damages for malicious prosecution.

The circumstances of the case are that on or about the 23rd March, 1955, the appellant made a complaint against the respondent in the following terms:

‘Yesterday 22nd March 1955 at about 8.30 a.m. I was in my house at Oba, one Enoch Oli of Oba came to my house in the company of one Obishiri Aniekwe. Thomas Enechuku, Madukegbu Nwokolo. Obiefuna Nwataka, all of Oboji quarter Oba, also Iwuoba Agwuegbue, Obanwuzia Nnabude, Onyemenam Onachuku, Ndubuisi Otadike, Ezekiel Onyeagbanusi and so many others I cannot remember now. Enoch Oli the ring leader ordered them to damage all that they see in my house because he has said that I will no longer live there as he disputed with my junior brother Godfrey lkoku over his house that he refused him to stay at Port Harcourt. I had no previous quarrel with him other than the case he had with my junior brother Godfrey. The following things were damaged: two palm trees, two coconut trees, four bundles of zince valued £5-1 Os-ad each valued £22, one 5 gallon iron pot, one basin, five bags of cement and all the plants I collected for my yams were removed by them. The total being f.40—Signed Benson Ikoku.’

The respondent was duly prosecuted with nine others on charged of stealing and unlawful damage to property, and conduct likely to cause a breach of the peace. The respondent was acquitted and thereupon instituted these proceedings for malicious prosecution. It appears from the opening address of Counsel in the Court below that it was not in dispute that the appellant was the prosecutor, and in his closing address Counsel for the appellant said:-

‘Plaintiff must prove 4 ingredients. There is authority in Nigeria that if a prosecution has been brought about by deft he is deemed to be prosecutor. 14 W.A.C.A at 276. Defendant is one who instituted prosecution (2) Was prosecution determined in favour of plaintiff. 25 Hals (3rd Edition) 354 section 693 and 4. Prosecution terminated in plaintiffs favour. It is with (3) and (4) grounds that I ask Court to dismiss plaintiffs case.’

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One ground of appeal that was argued was that the trial Judge did not direct his mind to the evidence of Theophilus Ugwunezbulam, a Police Officer, who said that he was satisfied that the respondent had committed the offence. Counsel said that this was relevant on the issue of whether the appellant was the prosecutor. In reply Counsel for the respondent drew attention to the references in the record referred to above, and pointed out that it was admitted in the court below that the appellant was the prosecutor. The issue in that Court was whether the prosecution was without reasonable or probable cause, and malicious. In these circumstances I do not think that this ground of appeal can succeed or that we should now consider whether or not the appellant was the prosecutor.

A further ground of appeal was that the Judge wrongly refused to permit cross-examination of the Police Officer on statements made to him. It was submitted that the statements, and the evidence of the persons who gave them, would be admissible to prove reasonable and probable cause for the prosecution. I gathered from Chief Rotimi Williams that this ground of appeal was really subsidiary to the first ground of appeal and was dependent on the supposition that the appellant was not the prosecutor. lt follows that this ground of appeal cannot succeed. The basis of the case was the allegation made to the Police Officer, and statements taken by the Police cannot be relevant to the issue of reasonable and probable causes for the making of an allegation before the statements were taken.

The main ground of appeal was that the trial Judge was wrong in deciding the case on the balance of probabilities. Counsel referred to the wording of the complaint which he said must be proved to be false. He submitted that by virtue of s, 137(1) of the Evidence Act the allegation that the appellant made a false report to the Police should have been proved with the standard of proof that is required in a criminal case, as it amounted to an allegation that the appellant had committed a crime contrary to Section 125A of the Criminal Code. In arguing this point, Counsel also referred to the wording of paragraph 3 of the Statement of Claim, the findings of the trial Judge, Section l25A of the Criminal Code and Section 137(1) of the Evidence Act.

These are as follows:-

Statement of Claim

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‘On or about the 23rd day of March, 1955 the defendant falsely and maliciously and without reasonable or probable cause lodged a complaint before the Police Authorities Onitsha charging the plaintiff with stealing and wilful and unlawful damage to property and conduct likely to cause a breach of the peace and caused the plaintiff to be arrested and to be sent for trial in the Magistrates Court Onitsha on the said charge.’

Finding of the trial Judge
‘The question to be decided by this Court and the one which in my opinion, is the whole crux of this case is has the plaintiff proved on the balance of probabilities that at the time of the invasion (viz. of the defendants house, which led to his complaining to the Police) he was not present as alleged aiding and abetting the commission of the offence …. he (the plaintiff) has established on the balance of probabilities that the statement made to the Police by the defendant. was when he made it false to the knowledge of the defendant.’

Section /25A of Criminal Code:

(I) Any individual who gives any information which he knows or believes to be false, to any person employed in the public service with the intention of causing such person-

(a) to do or omit to do anything which such person ought not to do or ought not to omit to do if the true facts concerning the information given were known to such person; or

(b) to exercise or use his lawful powers as a person employed in the public service to the injury or annoyance of any other person, is guilty of an offence and liable to imprisonment for one year.

‘(2) A prosecution for an offence under this section shall not be instituted-
(a) without the consent of a superior police officer; or
(b) where in any province an administrative officer has been duly appointed to have charge of the police therein under the provisions of subsection (I) of section 7 of the Police Act, without the consent of that administrative officer.’

Section 137(I) Evidence Act:

‘If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal it must be proved beyond reasonable doubt.’

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Counsel for the respondent, in reply to this ground of appeal, submitted that Section 137(1) of the Evidence Act means an issue raised in the pleadings and no crime was put in issue by paragraph 3 of the Statement of Claim. The allegation was that the appellant had maliciously prosecuted the respondent and falsity is not a necessary ingredient of that allegation. He said that if falsity was in issue it was not a crime. In this respect Council argued (as I understand him) that Section 125A of the Criminal Code involves falsity and active belief in falsity, but that in a civil case for malicious prosecution, active belief in falsity is not material. In these circumstances he submitted that the commission of a crime was not directly in issue in the proceedings within the meaning of s.137 (1) of the Evidence Act.

The provisions of s. 137(I) were considered by this Court in the case of Sunday E. Oso V. Chief Festus Okorie-Eboh (ES.C. 407/1959), where we held that the issue of a crime must arise on the pleadings. We have not, however, previously considered the scope of the subsection. In my view, the subsection only applies where there is a specific allegation of a crime in the pleadings, so that the commission of a crime can properly be said to be a basis or foundation of the claim or defence, as the case may be. For example, the subsection, would apply where a defendant in an action for libel pleaded justification of an allegation that the plaintiff had committed a criminal offence or where a petitioner sought divorce under the Matrimonial Causes Act. on the grounds of rape, sodomy or bestiality. In the present case the matter directly in issue is not whether a crime has been committed, but whether the prosecution was without reasonable and probable cause and malicious, and the commission of a crime against s. 125A of the Criminal Code is not a basis or foundation of that issue. The falsity of the charge was also alleged in the usual form in the Statement of Claim, but there was no allegation in the pleadings that it was false to the knowledge or belief of the defendant. I can find nothing in the pleadings which raises directly the commission of a crime as provided by s. l25A of the Criminal Code. Facts directly in issue are to be distinguished from facts which come collaterally into question. The question whether the facts alleged in the pleading and evidence may (though the point was not taken in the court below and there is no specific decision on it) amount to an offence under s, 125A of the Criminal Code is a collateral matter. In the above circumstances I am of the view that the commission of a crime against s. 125A was not directly in issue in this case within the meaning of s. 137( I) of the Evidence Act.

The above construction is supported by the wording of other provisions of the Evidence Act. Section 2 of the Evidence Act defines ‘facts in issue’ but not ‘facts directly in issue’. The words are, however, used in 2, 53, which provides that decisions on facts directly in issue create an estoppel in the circumstances mentioned in that section, and I do not think that it could be contended that an estoppel by way of res judicata could arise in subsequent proceedings between the parties (for example, a libel action) on the issue of whether the appellant has committed a crime contrary to s. 125 A 0 f the Criminal Code.

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I should mention (though the point was not taken before us) that sections 53 and 107 of the Evidence Act are clearly taken from Articles 42 and 103 of Stephens Digest of the Law of Evidence. The case of Thurtell V. Beaumont, (1823), I Bing. 339, cited by Stephen under Article 103 appears to have been decided on the basis that the defence raised a specific allegation of arson.
For the reasons given in this judgment I would dismiss the appeal with costs assessed at twenty-five guineas.

TAYLOR, FJ.: I concur.

BAIRAMIAN, FJ. (Dissenting): The defendant complains against the judgment given at Onitsha on 28th October, 1960, which awarded the plaintiff damages for malicious prosecution. His major complaint is founded on s. 137(1) of the Evidence Act, s. 125A of the Criminal Code, para. 3 of the Statement of Claim, and two passages in the judgment of the High Court-one at p. 50, 1-18 and the other at p. 52, 1-14. Para. 3 of the Statement of Claim reads:-

‘On or about the 23rd day of March, 1955 the defendant falsely and maliciously and without reasonable or probable cause lodged a complaint before the Police Authorities Onitsha charging the plaintiff with stealing and wilful and unlawful damage to property and conduct likely to cause a breach of the peace and caused the plaintiff to be arrested and to be sent for trial in the Magistrates Court Onitsha on the said charge’.

The plaintiff was acquitted by the Magistrate and later sued the defendant for malicious prosecution. The learned trial Judge said in his judgment, at p.50:-
‘The question to be decided by this Court and the one which in my opinion is the whole crux of this case is has the plaintiff proved on the balance of probabilities that at the time of the invasion he was not present as alleged aiding and abetting the commission of the offence’.

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Later, at p. 52, the judgment states:-
‘Having considered anxiously all the evidence I have come to the conclusion that the Plaintiffs version of what took place is more credible than that of the defendants and that he was established on the balance of the probabilities that the statement made to the police by the defendant that he came to defendants compound on the morning of 22nd March, 1955 and was there present instigating certain named persons to damage and destroy defendants property was, when he made it, false to the knowledge of the defendant. I find that the plaintiff was not present at nor did he take any part in any such invasion. Accordingly I find that the defendant had not an honest belief in the plaintiffs guilt and that he charged him out of spite.’

Chief Rotimi Williams has quoted s. 125A of the Criminal Code, which provides that:-
‘( 1) Any individual who gives any information which he knows or believes to be false, to any person employed in the public service with the intention of causing such person-
(a) to do or omit to do anything which such person ought not to do or ought not to omit to do if the true facts concerning the information given were known to such person: or
(h) to exercise or use his lawful powers as a person employed in the public service to the injury or annoyance of any other person, is guilty of an offence and liable to imprisonment for one year.

‘(2) A prosecution for an offence under this section shall not be instituted.’ etc.
He has also quoted s. 137(I) of the Evidence Act, which provides that:-
‘If the commission of a crime by a party to any proceeding is directly in issue the commission of a crime by the defendant, namely that of giving to the Police information which he knew or believed to be false; that there is a finding by the trial judge that ‘the statement made to the Police by the defendant was when he made it false to the knowledge of the defendant’; but that was a finding made on the balance of probabilities, which sinned against the rule in s, 137(1) of the Evidence Act. Thus the point raise is whether at the trial the question whether the defendant had knowingly made a false statement to the Police was directly in issue.

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The argument for the plaintiff is that section 125A of the Criminal Code involves falsity and active belief in falsity, but that in a civil case for malicious prosecution active belief in falsity does not arise; and my note of the further argument is that:-
‘It was never our case that he gave the report knowing or believing it was false. Our case was that we were not there; as soon as we prove that, the onus shifts on to him. We could have succeeded without proving anything about his state of mind.’

Corea v. Peiris, P.C. (1909) A.C., 549, cited in support, does not help the plaintiff. The judgment states, at p. 555 of the report, that:-
‘the pivot upon which almost all such actions turn is the state of mind of the prosecutor at the time he institutes or authorises the prosecution .The crucial question for consideration are: Did the prosecutor believe the story upon which he acted? Was his conduct in believing it, and acting on it, that of a reasonable man of ordinary prudence? Had he any indirect motive in making the charge?

That was a case of a person who prosecuted on the faith of reports he had received from those looking after his property, and after obtaining legal advice.
Here it was not the defendant who prosecuted: it was the Police. There is the case of Pandit Gaya Parshad Tewari v. Sardar Bhagat Singh and another (1908), 24 T.L.R., 884; the headnotes reads:-

‘If a complainant does not go beyond giving what he believes to be correct information of the Police, and the police, without further interference on his part (except giving such honest assistance as the police may require), think fit to prosecute, he is not responsible in an action for malicious prosecution: but if the charge is false to the knowledge of the complainant. if he misleads the police by bringing suborned witnesses to support it, if he influences the police to assist him in sending an innocent man for trial, he cannot escape liability because the prosecution has not technically been conducted by him.’

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That is taken bodily from the judgment. Tewari was accused of taking part in a riot connected with a land dispute; in fact there had been no riot, and at the time he was ill at Lucknow. The magistrate held that the charge had been concocted; and the judge who heard Tewaris claim later held likewise .

We had a similar case in Nigeria-David Inneh v. lguma Aruegbon, 14 W.A.C.A. 73. lnneh made a complaint that lguma had stolen goods from his house at Benin; at the time she was living in Lagos; the aim was to get her arrested and brought to Benin, where she was served with a summons for adultery. In the subsequent civil action she was awarded damages, and the decision was upheld under Tewaris case.

From those cases it is clear that if a person makes a complaint to the police which is false to his knowledge, he cannot escape liability on the ground that it was the Police who prosecuted. In either case there was a sound alibi; neither in the criminal trial nor in the civil was there any doubt on the mala fides of the complaint.
In the present case, the defendant complained to the police that, while he was in his house. in broad daylight, the plaintiff came with others, whom he ordered to damage whatever they saw. The magistrate held that the charge had not been proved beyond reasonable doubt. In the subsequent suit for damages, para. 3 of the Statement of Claim (quoted above) was denied. Counsel, when opening the plaintiffs case, thought that:-

‘It is 3rd ingredient want of reasonable and probable cause and malice that are in issue. If counts find that plaintiff was not in fact present the allegation would have been false to the knowledge of the defendant and malice necessarily follows.’

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The defendants house had in fact been invaded; but the plaintiff sought to prove that he was elsewhere at the time, as a means of proving that the defendant had knowingly lied against him to the police, which was the foundation of his case: without proving that the defendant had deliberately lied, he could not succeed: it was, in my view, the paramount question directly in issue, in order that the liability of the defendant might be brought within the decision in Tewaris case: but as that was an offence under section l25A of the Criminal Code, the evidence to prove it should have been such as to prove it beyond reasonable doubt. The way the learned judge dealt with the evidence has been quoted; his findings were made on a balance of probabilities-which in my view was a mistake.

Whilst regretting the fact that I differ from my learned brother Unsworth, F.J., I feel happy at being complied to take another view of the law, I think that the plaintiff, who was discharged because the case against him could not be proved beyond reasonable doubt, cannot in fairness have damages when he could not prove, beyond reasonable doubt, his case against the defendant.
I would allow the appeal, and give judgment for the defendant with costs here and below.

Appeal dismissed.

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