THE SALALA RUBBER COMPANY, Appellant, v. S. B. ONADEKE, Appellee.

APPEAL FROM THE CIRCUIT COURT, SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued November 19, 1975. Decided January 2, 1976. 1. Native trial by ordeal is frowned upon by the courts as uncivilized. 2. All pleadings must be certain, intelligible and clear. 3. To establish malicious prosecution it is necessary to prove that the plaintiff was prosecuted for a crime charged by the defendant maliciously and without probable cause ; and the plaintiff must be acquitted after trial. 4. It is not sufficient to merely assert a wrong, it must be proved by the plaintiff. 5. To justify the return by a jury of a verdict finding general or exemplary damages for a plaintiff, there must be evidence to support the verdict, in the present case the element of malice. The offices of the appellant corporation were rifled one night and a pickup truck it owned, which was used by appellee, was stolen. The theft of the truck was reported to the authorities. Subsequently appellee was taken into custody and charged with the crime. Thereafter, though appellee was an assistant manager, he consented to trial by ordeal and was pronounced as the culprit. But upon the finding of a bill of ignoramus by the grand jury, meaning it was not indicting the appellee, he was released. He started a suit, which embraced a few causes of action, against appellant, stressing malicious prosecution. The jury returned a verdict for appellee, awarding him a large sum for general damages. A judgment was entered and the defendant in the case appealed therefrom. The Supreme Court ruled that appellee had improperly pleaded. More important, it found that appellee had failed to establish a case of malicious prosecution, primarily because he was not ever criminally tried. In addition the Court found the jury’s award to be excessive. The judgment was reversed. 441 442 LIBERIAN LAW REPORTS J. Dossen Richards for appellant. for appellee. Peter Amos George MR. CHIEF JUSTICE PIERRE delivered the opinion of the Court. The appellee herein, who was the plaintiff in the court below, was employed by appellant company in the capacity of assistant manager, when during a night in October, 1969, the offices of the company in Bong County were entered and rifled by some unknown person. The next morning inquiries were begun by the manager and company staff, and the night watchman disclosed that the only person known to have entered the premises the night before was the assistant manager, the appellee herein. Since his place of residence was only a short distance away, the manager went to see him, and it was then that appellee informed the manager that the company’s pickup truck had been stolen from appellee’s yard during the night. The manager then instructed the appellee to report the theft to the County Commissioner, who went to the company’s place of business and conducted an investigation on the spot for several days. As a result of this investigation appellee was detained as a suspect, and in accordance with practice in the area native ordeal was administered once, and a second time when requested by the appellee, both administrations of such ordeal resulted in establishing his alleged guilt, as reported by the authorities. What is very unusual is that ordeal is a form of uncivilized native trial frowned upon by our courts ; civilized persons never submit to its administration, since such submission seeks to have the suspected party give evidence against himself in a criminal trial. The Supreme Court in laying down this principle in Posum v. Pardee, [1935] LRSC 11; 4 LLR 299 (1935), said that the administration LIBERIAN LAW REPORTS 443 of native ordeal is unconstitutional. It is unseemly that the appellee, a civilized man and the assistant manager of a corporation, would have submitted to it in the first place, and requested it in the second place. But I have mentioned this in passing, because he has to bear responsibility for himself. The appellee was sent to the County Attorney’s office, and the matter went before the grand jury, which returned a bill of ignoramus, not finding appellee chargeable. Based upon this bill, appellee filed suit for damages in the June 1971 Term of the Civil Law Court in Monrovia. According to the complaint damages were prayed for, as a result of the alleged malicious prosecution brought against the appellee, for as a result of the said “malicious prosecution” and detention, the appellee suffered financial loss in salary amounting to $2,750. This amount, together with a sum sufficient to “cover the good name of plaintiff, and his losses and inconveniences sustained, by reason of the malicious act of defendant,” was asked for in the damages sought. Thus he asked for special and general damages, in a total sum to be determined by the jury. As we have said earlier in this opinion, this was the case which came up for trial before Judge Alfred Flomo, who presided over the December 1974. Term of the court. A jury was selected and sworn, considered the evidence and argument of counsel on both sides, and returned a verdict awarding the plaintiff damages in the sum of $7,500. To this verdict of the jury exception was taken, a motion for a new trial was filed, heard, and denied. Judgment affirming the verdict was accordingly rendered and from it an appeal was announced and completed. Hence, this case has come before us. The text of the complaint seems to have recited several causes of action. The complaint refers to malicious allegations and prosecution ; it refers to arrest and detention 444 LIBERIAN LAW REPORTS in a military barracks, which deprived plaintiff of his liberty, to which he claimed he was entitled. It also refers to alleged acts of the defendant defaming his good name. Any one of these wrongs might be good ground for an action of damages. We refer to this because the defendant in count one of its answer stated that the plaintiff had failed to set out a specific cause of action so as to have given notice of what to defend against. What is very perplexing about this point is that at the hearing before the Supreme Court appellee’s counsel asked the Court to use its judgment in determining which of these several causes of action was the basis for his action of damages. This would seem to compel us to review all of the causes of action referred to in his complaint, to see whether any one of them could be applicable to the circumstances in the case. Succinctly, the Court was asked to do for him what a counsel failed to do for his client. We would like to mention that under our practice and procedure, pleadings must state definitely what are the causes of action upon which the party relies. In Shaheen v. C.F.A.O., 13 LLR 278, 290 (1958), the Court said that “the fundamental principle of all pleading is the giving of notice of what a party intends to prove at the trial.” In Fazzah v. National Economy Committee, [1943] LRSC 2; 8 LLR 85 (1943), the Supreme Court held that all pleadings must be certain, intelligible and clear. We most certainly agree with the position that the complaint was not clear in stating the specific ground upon which the action of damages was predicated. Appellant denied in the answer that there could be any ground for damages based upon malicious prosecution, because there was never any prosecution for larceny or any other crime. On this score the record shows that no indictment was ever returned charging the appellee with a crime. Moreover, at the trial, the examination of the LIBERIAN LAW REPORTS 445 company’s manager further established these foregoing facts. “Q. Did you at any time lodge any complaint of grand larceny against the plaintiff before any magistrate, justice of the peace, or stipendiary magistrate, and thereafter swear out any writ of arrest against the plaintiff, upon which writ of arrest he was arrested and a judicial trial thereby commenced? “A. I never did. “Q. The plaintiff has put on report that you accused him of stealing the pickup ; what have you to say about this? “A. I never did. “Q. Tell the court and jury what was the outcome of the investigation that was conducted by the Commissioner, to whom the plaintiff had reported the loss of the company’s pickup? “A. The outcome was the decision by the County Commissioner that plaintiff was considered the guilty party. “Q. It is on record that sassywood (ordeal) was played and he was caught; please say whether or not you requested to pay for any sassywood or any other ordeal whatsoever, with a view to discover who had stolen the company’s pickup. “A. I did not. “Q. The plaintiff has proferted some kind of certificate showing that the grand jury of Bong County brought an ignoramus in favor of the plaintiff. Did you ever testify before the grand jury? “A. I did not.” Questions from the Court were thereafter placed to the manager. “Q. Tell us to whom was the theft of your corn- 446 LIBERIAN LAW REPORTS pany’s pickup first reported, that is, which official of Government and by whom? “A. The report, Your Honor, was made by plaintiff and I was not present to know which official he met first. “Q. We understand that a sassywood trial was conducted on the body of the plaintiff, tell us who requested the trial of the sassywood, if you know? “A. I don’t know, but it was not me. “Q. Can you say who reported the matter to the authorities in Bong County? “A. No, I don’t know, but again it was not me. “Q. So you are saying, Mr. Witness, on the whole, personally you took no part in the entire investigation surrounding the loss or theft of your company’s pickup? “A. Yes, I left it all with the Commissioner.” With this testimony and that of the Commissioner quoted hereinafter, several questions seem to have been settled : (c) that the theft of the company’s pickup was reported to the County Commissioner by the plaintiff, although upon instruction of the defendant ; (2) that the investigation conducted by the Commissioner terminated with the decision that native ordeal be administered, to determine who was guilty of having stolen the pickup ; (3 ) that the man first sent by the Department of Internal Affairs to conduct the ordeal accused the plaintiff of being the guilty party ; whereupon plaintiff expressed dissatisfaction ; another man was called to conduct the ordeal and again the plaintiff was accused of stealing the pickup truck ; (4) that the Salala Rubber Corporation, the defendant-appellant never accused the plaintiff through its agents of stealing the truck. The Commissioner testified at the trial on this latter point. “Finally, I said to them, gentlemen, here we are, what can we do? And they all requested that native ordeal LIBERIAN LAW REPORTS 447 be administered. In consequence of this request of theirs, ordealman Duo was sent for from the Ministry of Local Government, then the Department of Internal Affairs. . . . He administered the ordeal and it caught Mr. Onedake, the plaintiff. He requested for a second trial because he said he was not satisfied with the first; his request was granted and the second ordealman was sent for. He also caught Mr. Onedake. Upon the oath I have taken in this court, and within my certain knowledge of the facts, the Salala Rubber Corporation never accused him of stealing the pickup ; he made the report personally to my office. . . . It is significant to note that this testimony was not rebutted and stands unimpeached. In order that malicious prosecution can be established, it is necessary to prove the following: (r) that the plaintiff was prosecuted for a crime; based upon the information or complaint of the defendant; (2) that for want of proof of the charge made against him by the defendant, the plaintiff was acquitted after trial. The legal definition for malicious prosecution is: a wanton prosecution made by a prosecutor in a criminal proceeding by a regular process and procedure, which the facts did not warrant as appears by the result. Therefore, not only should there be probable cause, process issued, and a proceeding conducted, but the facts must also show that the arrest and subsequent proceeding were not warranted. In other words, to establish that the arrest and subsequent proceeding were not warranted, there must be a trial at which facts are testified to. Malicious prosecution has been defined as the means adopted to bring a supposed offender to justice and punishment by due course of law. We know that “due course of law” is synonymous with “due process of law” and with “the law of the land,” as we said in Royal Exchange v. Ilarriero decided during the present term. In order 448 LIBERIAN LAW REPORTS that a suspect is afforded due course of law in a criminal proceeding, there must be a criminal charge brought against him before a tribunal competent to pass upon the subject matter; there must be notice, actual or constructive, an opportunity for him to appear and produce evidence, to be heard in person, by counsel or both, having been duly served with process or having otherwise submitted to the jurisdiction of the tribunal. Wolo v. lVolo s LLR 423 (1937). The question then arises : Were these necessary requirements met in this case by the bill of ignoramus returned by the grand jury? Naturally, they could not have been. Because, as we have said earlier, the bill itself is evidence that there was no criminal charge brought against the appellee for the theft of the pickup ; and if there was no criminal charge made against him, there could be no prosecution. It is clear then that malicious prosecution could not have resulted from the return by the grand jury of a bill of ignoramus. While it might be true that there was probable cause for a criminal charge, it is also true that the appellee was not criminally charged for the theft by the appellant. During the argument before us, both sides argued for and against the possibility of having the appellant go before the grand jury to testify in an effort to connect the appellee with the theft of the pickup. Laying aside the positive denial of the defendant’s agent at the civil trial, to the effect that he did not testify before the grand jury, how is it possible for anyone except members of the grand jury, and possibly the County Attorney, to know who testified before the grand jury? And if the plaintiff had evidence of the fact that the defendant’s agent did appear before the grand jury and testify, why didn’t he seek to prove this at the trial? This certainly would have lent much weight to his case. We are of the considered opinion that the judge should have explained to the trial jury the significance of the grand jury’s bill of ignoramus. LIBERIAN LAW REPORTS 449 His failure to do so must have resulted in the verdict which they returned, which is clearly contrary to the evidence. How could damages be found for malicious prosecution when there was no prosecution? In malicious prosecution, authority has agreed that the following elements of tort must be clearly and certainly apparent: “(i) the commencement or continuance of an original criminal or civil judicial proceeding; (a) the legal causation thereof by the defendant against the plaintiff; (3) its bona fide termination in favor of the plaintiff ; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; (6) damage conforming to legal standards resulting to the plaintiff.” 1126 CYC 8 (1907). To be able to determine that the plaintiff suffered damages in such circumstances, there must be proof of the commencement by the defendant of criminal proceedings against the plaintiff; and it must also be shown that there was no probable cause for such criminal proceedings; and still further, it must also be shown that said criminal proceedings initiated by the defendant resulted in the acquittal of the plaintiff. “To maintain an action for malicious prosecution, the plaintiff must show that the defendant therein was responsible for the institution or continuance of the original proceedings complained of. Generally, a mere passive knowledge of acquiescence in, or consent to the acts of another, for which one is not otherwise responsible, is not sufficient to render the latter liable in an action for malicious prosecution; it must be shown that he was affirmatively active in instigating or participating in the prosecution. In case of a criminal prosecution, the defendant must have been the prosecutor, or at least the actor or moving cause in the prosecution, and for the purpose of this form of action the law looks beyond and regards the person in fact instrumental in prosecuting the accused as the real prosecutor. . . . 450 LIBERIAN LAW REPORTS “Liability for a malicious prosecution may under some circumstances be predicated upon the making of a complaint to a public officer, or the making of an affidavit, upon which the prosecution is instituted. Thus, where one applies to and furnishes information to a justice or other peace officer, and signs and swears to a complaint as a basis for a criminal prosecution, he cannot escape liability on the ground that he took no further part in the proceedings. However, where a person states the bare facts as to the conduct of a third person, to a magistrate, and the latter erroneously deems a crime to have been committed, and directs the third person’s arrest or the issuance of a warrant, the informer is not liable for malicious prosecution; it is the officer’s error rather than the defendant’s act which is the cause of the plaintiff’s injury.” 34 AM. j UR. 7 Malicious Prosecution, � 22, 23 ( I 942 ) . Referring again to the complaint in this case, more than one cause of action was mentioned as a probable basis for damages. Let us now see if any of the others could be applicable. The complaint states that the plaintiff is a “law abiding citizen without public disrepute” and he, therefore, prays that an amount be returned as damage to compensate him for loss of his good name and the inconveniences he sustained, all traceable to the malicious act of the defendant. According to this wording of the complaint, he could have intended to use libel, slander, or defamation as a ground for his action of damages. The complaint also states that the “defendant with malice and without probable cause did maliciously allege that plaintiff had stolen from him a pickup truck belonging to his company, thereby causing his arrest and detention, which deprived him of his rights and liberty to which he was entitled.” Hence, plaintiff could have intended to use unlawful detention as a ground for his suit of damages. LIBERIAN LAW REPORTS 451 In any one of these several causes of action which he might have intended to use as the ground for his case, he must have proved at the civil trial that the defendant was responsible, either for his detention, or for anything arising from the investigation of the loss of the pickup, which he alleged defamed him and adversely affected his reputation as a law abiding citizen. Unless he proved at the trial that defendant had been responsible, he had suffered no wrong at the defendant’s hands. No plaintiff can be entitled to damages against a defendant, unless he can show that the defendant had wronged him; and it is not sufficient to merely assert that he had been wronged, he must be able to prove it. Brown v. Brown, r LLR (186r) ; Itokay. Noelke[1939] LRSC 1; , 6 LLR 329 (1939). From the testimony in this case, there is no showing that the defendant reported the theft of the pickup. On the contrary, it was the plaintiff himself who reported the loss of the vehicle to the company, and to the County Commissioner. Testimony of the County Commissioner quoted earlier in this opinion positively states this, and that is the best evidence which the issue admits of. And that testimony was never rebutted, so it stands unimpeached. We come now to consider the verdict of the jury, and to try to ascertain the basis upon which they awarded $71,000 damages to the plaintiff, that is, granted that the plaintiff had even been able to prove defendant responsible for any loss or injury he is alleged to have suffered, what of the sum that was awarded as damages? The plaintiff claimed he had suffered a loss in salary of $2,750 and asked the jury to award him this sum as damages. In the prayer of his complaint he also asked the jury to award an additional amount to cover the loss of his good name, reputation, and the losses and inconveniences sustained traceable to the malicious act of the defendant. The jury accordingly awarded $1,5oo as special damages, and $70,000 as general damages. 452 LIBERIAN LAW REPORTS In Itoka v. Noelke, cited before, the Court said in the text at page 333, “Unless there is some element of malice, or gross negligence, or circumstances of aggravation, the measure of damages is the measure of compensation for the loss sustained and nothing more; and an instruction as to punitive damages when there is no substantial evidence that the negligent action complained of was wanton or malicious has been held to be erroneous.” In this respect, one wonders what the yardstick was which the jury used to arrive at $7o,000 as general or exemplary damages in this case. The Court will not uphold unreasonable amounts arbitrarily awarded by a jury as damages. While it is true that it is the province of the jury to say what general damages should be, it is our opinion that the amount awarded should always depend upon and be governed by the evidence adduced at the trial. We have not been able to find anything in the evidence to justify the $70,000 awarded as general damages. Nor have we been able to find any evidence to show that the loss of salary by the appellee was due to any wrongful act of the appellant. We have no alternative, therefore, but to reverse the judgment of the trial court, with costs against the appellee. It is so ordered. Reversed.