Mr. Chris Agbor was employed by the Kalem Companies Ltd in Warri on 18th April, 1979 as an Assistant Patrolman in charge of Uzere Road project at the company’s Oleh site. His duty as an Assistant patrolman involved posting guards working under him to their various beats for both day and night duties.
He claimed that he served Kalem Companies Ltd without any blemish and was on 18th April, 1989 issued with a certificate of ten years long service award by the company.
But the trouble that led to his exit from the company’s service and eventually to the institution of this case arose over the theft of the respondent’s two Mercedes Benz Heavy Duty tipper Lorries valued N800,000 on 27th January 1991 at the company’s yard at Oleh in Isoko area of Delta State.
Mr. Chris Agbor, as the Head of the security men in charge of the station, immediately reported the theft to the police at Oleh police station. A search for the two missing lorries by the police eventually led to their recovery in Ibadan. The information about their recovery came from the Police who claimed that the two Lorries were intercepted at the Nigerian border as they were to be driven across to Benin Republic.
Some arrests were made in Ibadan where the Lorries were recovered. Mr. Chris Agbor was implicated in the statements made to the police by one of the suspects and this led to his arrest. He was first detained by the police after his arrest and was eventually charged to court along with the other suspects with conspiracy and stealing of the two Lorries.
Mr. Chris Agbor was, however, discharged and acquitted in a ruling on a no case submission at the close of the prosecution’s case. He was remanded in prison custody for some days before he was granted bail by the Isoko Magistrate Court, Oleh which tried the criminal charge preferred against the appellant and the other suspects. Four of the Mr. Chris Agbor’s co-accused at the trial were, however, convicted and sentenced to various terms of imprisonment at the end of the trial. The court made the following observation in its judgment in the criminal charge delivered on 29th October, 1991:
“It is our observation that the police failed to properly interrogate the security officers attached to Julius Berger here at Oleh. If they had done so more facts would have emerged so as to determine how the vehicles got out of the yard,”
After Mr. Chris Agbor had been discharged and acquitted of the criminal charge preferred against him, he reported for duty at his place of work with Kalem Companies Ltd. He was however prevented from resuming duty. Instead, he was issued with a notice titled “Dismissal/Termination – Notice”.
The reason given in the notice for the termination of his appointment was that his services were no longer required on the ground of redundancy. He was however paid the arrears of his salaries and allowances for the entire period he was away from duty up to the time of his final discharge by the court. The Company also prepared the entitlements due to the appellant as an official disengaged from the company’s services on the ground of redundancy.
Mr. Chris Agbor, however, refused to accept the amount of N5,285 as the total amount due to him as an officer disengaged on the ground of redundancy. He insisted that he ought to have been allowed to resume his normal duties or allowed to retire having regard to his long and unblemished service with the company.
When all efforts to get the Kalem Companies Ltd to yield to any of his requests failed, he commenced a legal action on the basis, amongst others, that his arraignment amounted to malicious prosecution for an allegation as having stolen tipper lorries.
Points to Note:
1. Malicious prosecution can simply be said to be bringing a criminal proceeding against a person without reasonable or probable cause, which proceedings end in favour of the plaintiff.
2. For a better understanding, the tort of malicious prosecution is an action for damages brought by one against whom a civil suit or criminal proceedings has been unsuccessfully commenced without probable cause and for aims other than bringing the alleged offender to justice.
3. This tort seeks to hold a balance between two opposing interests of social policy as follows:
(i) the interest in unjustifiable litigation and;
(ii) the interest in encouraging the citizens to assist in law enforcement by bringing the offender to justice.
4. In such a case, the claimant seeks compensation for costs incurred by him in having to defend himself against the baseless and malicious prosecution instituted or instigated by the defendant.
5. For a successful action for malicious prosecution, certain elements must be proved by the plaintiff as follows:
(i) the defendant instituted or was instrumental to the institution of the prosecution against him.
(ii) the prosecution terminated in his favour.
(iii) There was no reasonable or probable cause for setting the law in motion against him.
(iv) It was malicious
(v) He suffered damages.
6. For a plaintiff to succeeded in an action for malicious prosecution, the burden of proving all the five elements rest on him. If he failures to establish any of the requirements, it may result to the plaintiff losing the case.
In conclusion, Mr. Chris Agbor succeeded in his action for malicious prosecution against Kalem Companies Ltd because he was able to prove the five (5) ingredients mentioned above. The Company was the Complainant in the criminal action; the case ended in his favour; there was no reasonable cause for institution the criminal case as observed by the court; it was actuated by malice as can be deduced from the Company’s subsequent actions and he suffered damage in that he lost his employment.
THE LEGAL DIARY
Joseph Jagunmolu Ogunmodede