DR CHIKE OBI (PLAINTIFF)
v.
M. N. CHUKWUMA (DEFENDANT)
(1964) All N.L.R. 491
Division: High Court, Lagos
Date of Judgment: 15th April, 1964
Case Number: LD/238/63
Before: De Lestang, C.J. of Lagos
The defendant, a police officer, made a complaint on oath as a result of which the High Court issued a warrant of arrest for the plaintiff to ensure the attendance of the plaintiff before the court to answer the charges laid by the D.P.P. against him. The plaintiff, a politician, was subsequently jointly charged and tried along with others in the High Court for the offence of Treasonable Felony, contra section 41(b) of the Criminal Code, Conspiracy to commit a Felony, contra section 516 of the Criminal Code, and Conspiracy to effect an Unlawful purpose, contra section 518(6) of the Criminal Code. The plaintiff was arrested on 2nd November, 1962, and remained in custody-until 1st March, 1963, when he was discharged on the three counts; whereupon, he brought the action, against the defendant, claiming damages for malicious prosecution. It was contended that the defendant cannot be liable for the claim since he was not the claim since he was not the prosecutor nor the originator of the prosecution; the plaintiff argued that it was the complaint made by the defendant which originated the prosecution in accordance with section 77(b)(iv) of the Criminal Procedure Act.
HELD:
(1) That originated the prosecution was the filing of a criminal information by the D.P.P. and not the so-called complaint made by the defendant, the sole purpose of which is to obtain a warrant of arrest and so ensure the attendance of the plaintiff before the court to answer to charges laid by the D.P.P.
(2) When criminal proceedings are commenced by complaint no information is filed. The fact that a criminal information was filed in this case shows beyond doubt that the proceedings were taken under section 340 of the Criminal Procedure Act by the D.P.P. and that the D.P.P. was clearly the prosecutor.
(3) Where prosecution of the plaintiff is alleged to be without reasonable and probable cause, the plaintiff must lead some evidence concerning the circumstances in which the prosecution was instituted, and the fact that the prosecution failed is not proof of want of reasonable and probable cause.
(4) The claim ought to be dismissed since there is no evidence at all from which malice could be inferred but everything tends to show that the defendant was merely doing his duty and was not actuated by spite, ill-will or other ulterior motives towards the plaintiff.
Claim dismissed.
Laws referred to:-
Criminal Code. Cap. 42 sections 41(b), 516. 518 (6).
Criminal Procedure Act, Cap. 43 sections 77(b)(iv), 340.
Rotimi Williams, (with him Molajo) for the Plaintiff.
Jinadu, (with him Laoye) for the Defendant.
De Lestang, C.J. of Lagos:-This is an action for damages for malicious prosecution. It arises in the following circumstances:
The plaintiff, a politician, was jointly charged with, and tried in the High Court of Lagos for Treasonable Felony, contra section 41(b) of the Criminal Code, Conspiracy to commit a Felony, contra to section 516 of the Criminal Code, and Conspiracy to effect an Unlawful purpose, contra section 518(6) of the Criminal Code. He was arrested on the 2nd November, 1962, and remained in custody until the 1st March, 1963, when he was "discharged" on the three counts. From the wording of the order of the court which reads "I am not satisfied that the prosecution has made a prima facie case against Dr Chike Obi" it may fairly be assumed that the discharge took place at the end of the case for the prosecution. The defendant is a police officer who, on the 1st November, 1962, made a complaint on oath as a result of which the High Court issued a warrant of arrest for the plaintiff. The actual complaint is not before the court but it would appear from exhibit P1. that it accused the plaintiff of the three offences mentioned above which were fully described in a Criminal Information referred to in, and attached to, the complaint and signed by the Director of Public Prosecutions.
Now to succeed in an action for malicious prosecution, the plaintiff must prove that:-
(1) he was prosecuted by the defendant;
(2) the prosecution was determined in his favour;
(3) the prosecution was without reasonable and probable cause, and
(4) it was malicious.
As it is contended for the defence that none of these ingredients was proved in the present case, I shall consider each in turn.
As regards (1) I agree with the defence contention that the defendant was not the prosecutor, that is to say, that he was not the person who set the criminal law in motion. Exhibit P1 shows that what originated the prosecution was the filing of a criminal information by the D.P.P. and not the so called complaint made by the defendant. I am satisfied that the sole purpose of the complaint was to obtain a warrant of arrest and so ensure the attendance of the plaintiff before the court to answer to the charges laid by the D.P.P. It was contended for the plaintiff that it was the complaint which originated the case for the prosecution in accordance with section 77(b)(iv) Criminal Procedure Act. In my view this is demonstrably wrong. When criminal proceedings are commenced by complaint no information is filed. The fact that criminal information was filed in the present case shows beyond doubt in my view, that the proceedings were taken under section 340, Criminal Procedure Act by the D.P.P. and that the D.P.P. was clearly the prosecutor. This is sufficient to dispose of this case but, in the event of it going further, I will deal with the remaining ingredients of the action on the assumption that the defendant was the prosecutor.
As regards (2), I am satisfied that the prosecution terminated in the plaintiff's favour. I am not impressed by the argument that because the order was one of "discharge," which is the proper order under our Law and not of "acquittal" the prosecution is not at an end. Even if the same charges could again be brought against the plaintiff, which I do not for one moment accept, there would have to be new proceedings.
As regards (3), the fact that the prosecution of the plaintiff failed is not proof of want of a reasonable and probable cause. The plaintiff must lead some evidence concerning the circumstances in which the prosecution was instituted to establish absence of reasonable or probable cause. There is here, on the one hand, the evidence of the plaintiff to the effect that he has not been engaged in any activity that could lead him to be suspected of the offences with which he was charged. There is, on the other hand, evidence which shows that the plaintiff was closely associated with other persons who were subsequently convicted of those offences and that he was present when one of them left the country. Moreover, the charges were investigated by the police, and, as a result of the investigation, a criminal information signed by the D.P.P. was handed to the defendant with instructions to obtain warrants for the arrest of all the accused. I do not doubt the defendant's evidence that he believed the charges to be true having reward to their origin. In these circumstances I am unable to find want of reasonable and probable cause proved. For the same reason I cannot find the fourth ingredient, namely, malice proved. Not only is there no evidence at all from which malice could be inferred but everything tends to show that the defendant was merely doing his duty and was not actuated by any spite, ill-will or other ulterior motives towards the plaintiff.
The action accordingly fails and is dismissed with costs assessed at 50 guineas.