PATRICK OGBONNA v. CHRISTAIN OGBONNA & ANOR (2014)

PATRICK OGBONNA v. CHRISTAIN OGBONNA & ANOR

(2014)LCN/6772(CA)

In The Court of Appeal of Nigeria

On Friday, the 17th day of January, 2014

CA/K/200/2008

RATIO

WORDS AND PHRASES: GENERAL DAMAGES

General damages means such as the law itself implies or presumes to have accrued from the wrong complained of, for the reason that they are its immediate, direct and proximate result or such as necessarily results from the injury, or such as did in fact result from the wrong, directly and proximately and without reference to the special character, condition or circumstances of the claimant. General damages are such as the court may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man GKF Investments Ltd V. Nigeria Telecommunications Plc (2009) 15 NWLR (pt 1164) 344, Tanko V. Mai-Waka (2010) 1 NWLR (pt 1176) 468, Kopek Construction Ltd V. Ekisola (2010) 3 NWLR (Pt 1182) 61, Aluminium Manufacturing Co. Nigeria Ltd V. Volkswagen of Nigeria Ltd (2010) 7 NWLR (pt 1192) 97. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

REQUIREMENTS FOR STRICT PROOF OF SPECIAL DAMAGES

PROCEDURE: RESPONSIBILITIES OF A TRIAL COURT.

It is the primary responsibility of a trial court to hear the parties, watch and observe the demeanour of witnesses called to testify before it, admit or reject documents tendered, ascribe probative value to the evidence and then come up with a decision. This is regulated by time honoured procedure designed to mete out justice to both parties before the court. The procedure is crucial in its observance. The trial court is enjoined to place the totality of the testimonies of both parties on an imaginary scale. One side of the scale will contain the evidence of the plaintiff while the other side will harbor the evidence of the defendant. The court must then weigh them together to see which side is heavier than the other. This is in terms of quality, not quantity. To help the court in this regard, it should consider whether the evidence led by a party in its totality is relevant, admissible, credible, conclusive and more probable than that adduced by the other party. Once these considerations fall into line, the court will then apply the relevant laws to the facts or evidence adduced, in order to reach a decision. Its duty is to reach a decision only on the basis of what is in issue and what has been demonstrated upon the evidence by the parties and supported by law. The observance of the procedure for evaluation of evidence is crucial to arriving at a just decision. Its breach will most likely lead to a perverse decision – Mogaji V. Odofin (1978) 4 SC 91, Adeleke V. Iyanda (2001) 13 NWLR (pt. 729) 1, Okoko V. Dakolo (2006) 14 NWLR (Pt 1000) 401, Tippi v. Notani (2011) 8 NWLR (pt 1249) 285, Momoh V. Umoru (2011) 15 NWLR (pt 1270) 217. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.:

WHETHER AN AWARD OF GENERAL DAMAGES CAN BE AN ALTERNATIVE TO SPECIAL DAMAGES

Award of general damages is never an alternative to special damages and the court is not precluded from awarding general damages simply because it had awarded special damages to the plaintiff. See the case of AYANGOKE & ANOR. V. HABIB (NIG.) BANK LTD (2013) LPELR – 21806 CA (P39-40), this is because there are different principles for awarding each of them. (Special and general damages). (INCAR MOTORS V. BENSO (1975) 3 SC 177; HARSSAALIC IND. LTD. V. USANG (SUPRA), UBA PLC. v. ATABULE (2012) 7 WRN 1. Per ITA G. MBABA, J.C.A

WHETHER SPECIAL DAMAGES MUST BE SPECIFICALLY PLEADED AND STRICTLY PROVED

The rules are well defined that special damages must be specifically pleaded and strictly proved, while general damages flow naturally from the claim and decision of the Court, and need not be pleaded or proved. See the case of HARSAALIC IND. LTD. V. USANG (2003) FWLR (Pt. 149) 1563; UBN PLC v. AJABULE (2012) 7 WRN at 19 – 20; UDEAGHA V. NWOGWUGWU (2013) LPELR 21819 CA; SPRING BANK PLC v. ADEKUNLE (2011) 1 NWLR (Pt. 1229) 581. Per ITA G. MBABA, J.C.A

REQUIREMENT FOR LIABILITY TO LIE IN MALICIOUS PROSECUTION

For liability to lie in malicious prosecution, the defendant must have done more than merely reporting the matter to the Police to spearheading the prosecution, even when there was no basis for same and he was so told. See the case of EJIKEME V. NWOSU (supra); BALOGUN V. AMUBIKAHUN (supra); OJO V. BAMIDELE LASISI (2003) FWLE (pt. 156) 896. Per ITA G. MBABA, J.C.A

INGREDIENTS TO BE PROVEN TO ESTABLISH A CLAIM OF MALICIOUS PROSECUTION

To establish a claim of malicious prosecution the plaintiff has a duty to plead and lead evidence to establish that:

he was prosecuted in a criminal charge, at the instance of the defendant;
that the defendant was the person who set the law in motion against him, leading to the prosecution;
that the criminal prosecution terminated in his (plaintiffs) favour
that the prosecution was malicious, as
the defendant acted without reasonable and probable cause. See the case of EJIKEME V. NWOSU (2002) 3 NWLR (Pt. 754) 356; (2001) LPELR CA/J/76/94; BALOGUN v. AMUBIKAHUN (1989) NWLR (Pt. 107) 18; MUSA v. YUSUF (2006) 6 NWLR (Pt. 977) 454; (2006) LPELR CA/J/157/2001. Per ITA G. MBABA, J.C.A

JUSTICES

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

PATRICK OGBONNA Appellant(s)

AND

CHRISTAIN OGBONNA & ANOR. Respondent(s)

ITA G. MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Kaduna State High Court, in Suit No. KDH/KAF/54/2005, delivered by HON. JUSTICE L. D. ABA on 30/6/2008, wherein the court held in favour of the Respondents, awarding special and general damages, totaling one million three hundred and forty five thousand, five hundred naira (N1, 345,500.00) to the Respondents and cost of N10, 000.00 for malicious prosecution.

Appellant was the defendant at the lower court and the Respondents, Plaintiffs. The Plaintiffs had claimed as follows, as per their Amended Statement of claim on page 6 of the Record:
(i) N870, 000.00 being special damages for monies spent to hire the services of Counsel to appear for them at both the Police Station, at various times and in Court at various adjournments, filing Court processes and obtaining Court records.
(ii) N1,130,000.00 general damages for miscellaneous expenses incurred in respect of the Police arrests, detention and prosecution of the defendant’s complaints at various times as enumerated above; and mental, emotional and psychological stress, caused the plaintiffs by the malicious and unfair acts of the defendant; and loss of plaintiffs’ fame. Total damages – N2, 000,000.00, and for cost of action.
Of course, Appellant counter claimed for N340, 000.00 special damages and for N2, 000,000.00 general damages.

Appellant filed notice of this appeal on 16/7/2008 and raised eleven (11) grounds of appeal, as per pages 178 to 186 of the Records. He filed his brief of arguments on 16/10/2008, upon the transmission of the Records of Appeal to this court on 4/9/08. He distilled five (5) Issues for determination, as follows:-
“1. Whether in view of the state of the pleadings and in the light of the evidence adduced in this suit, the learned trial judge is right in holding that the Respondents have established a case of malicious prosecution against the appellant? (Ground 7)
2. Whether the rejection of the evidence of the appellant and his witnesses as to who caused the respondents’ arrest and detention in 2003 in the Police Station Kafanchan is wrongful in the circumstance of this case? (Grounds 1 and 8)
3. Whether the procedure adopted by the learned trial judge in calling a witness, Constable Bulus Obadia on his own, without the consent of the parties herein and the reliance placed on the evidence in the judgment has not occasioned a miscarriage of justice in this case? (Ground 3)
4. Whether the various sums of money awarded to the respondents by the learned trial judge by way of special damages were specially and strictly proved to entitle them to the award? (Grounds 2, 4, 5, 6 and 9)
5. Whether the award of general damages in addition to special damages by the learned trial judge was wrongful and if the answer is in the negative, whether the general damages awarded was not excessive in the circumstances of this case? (Grounds 10 and 11).

The Respondents filed their brief of arguments on 14/10/2011 and the same was deemed duly filed on 14/5/13. They distilled four (4) issues for determination, as follows:
“1. Whether, given the admission of Appellant and the uncontroverted and/or uncontradicted evidence of the Respondents, the trial court was not justified to hold that the respondents made out a case of malicious prosecution against the Appellant (Grounds 1, 7 and 8)
2. Whether the learned trial judge did rely on the reference made to Constable Bulus Obadia to arrive at the judgment in favour of the Respondents and/or whether the mere reference to Constable Bulus Obadia, without more, amounted to irregular procedure and/or occasioned miscarriage of justice. (Ground 3)
3. Whether the Respondents proved their claims before the trial court to be entitled to judgment (Ground 2, 4, 5, 6, 9)
4. Whether the award of damages special and/or General was unreasonable” (Grounds 10 and 11)

When the appeal was heard on 6/11/13, Counsel for the respective parties adopted their briefs and urged us, accordingly.

Arguing issue 1, Learned Counsel for the Appellant, CHIEF A. EKHASEMOMHE, submitted that in order to succeed in an action for malicious prosecution, the Plaintiff must prove four things, which must all co-exist:
a. that he was prosecuted by the defendant
b. that the prosecution was determined in his favour
c. that it was without reasonable and probable cause, and
d. that it was malicious.
He relied on the case of ABIODUN OJO V. BAMIDELE LASISI & ANOR. (2003) FWLR (PT. 156) 886 at 895; DR CHIKE OBI V. M.N. CHUKWUMA (1964) ALL NCR 491 at 493; USIFO V. UKE AND ANOR. (1958) 3 FSC 58.
Counsel submitted that the duty of establishing the above elements was that of the Respondents, as he who asserts must prove; that the Respondents did not establish their arrest and detention at Kafanchan Police Station, as no witness was called to support the evidence adduced by the Respondents and PW3, regarding the purported arrest and detention by the Police in 2004; that the case file relating to the case was not tendered; that neither the DPO nor Area Commander, nor any other Police Officer was called to testify, and the bail bond in respect of the alleged grant of bail was not tendered. Appellant further argued that the Respondents had stated that in respect of the purported arrests of 2003 and 2004 they were not taken to court, and it was clear they were not making any claim for false imprisonment. He argued that in a claim of malicious report, it is fundamental that the nature of the report itself must be established by the Respondent, especially as appellants, had denied causing the arrest. He relied on the case of APOSTLE JEREMIAH YOTOR V. PHILIP AWEH & ANOR (2000) 2 NWLR (PT. 44?) 309

He further argued that Appellant is not a policeman and is not in control of the Police, to be held for the arrest and detention of the Respondent by the Police; that the Respondents did not demonstrate by evidence, part from mere assertion that Appellant was actively instrumental, how the police were acting in accordance with the whims and caprices of the Appellant in arresting and putting them in detention.

Appellant argued that his evidence that the 1st Respondent was arrested and detained by the police at the instance of his father, Raphael Ogbonna, because the 1st Respondent beat up his said father, was supported by DW1 and that DW3’s evidence on the arrest was not challenged, but the court failed to accept the Appellant’s evidence and rather made findings against the Appellant as follows:

“Also to be noted is the evidence of PW3 to the effect that at the Police Station, the DPO wanted to take the case to court against the Plaintiffs but defendant refused on ground that the defendant wanted only to deal with them and show then that “man pass man” No attempt was made to tamper with this evidence also. That at the Police stations both the Area Commander and the DPO advised that the parties should go home and settle as it was a family matter.”

Counsel submitted that the above findings totally overlooked at the amended statement of defence of the Appellant; that the said DPO and Area Commander were not called to give evidence, and the files relating to the arrests were not produced in evidence. He added that, because the criminal case was filed against the Respondents on the order of the Chief Magistrate and prosecuted by the Police, showed that the action was not devoid of reasonable and probable cause.

On the reason for the withdrawal of the complaint, Counsel referred us to page 168 of the Records and said that neither the Respondents nor their Counsel opposed the application for withdrawal of the complaint; thus, that findings of the court below that the prosecution was without a just cause and that it was malicious was erroneous, because the said findings did not take into account the unchallenged reasons for the withdrawal of the case at the Chief Magistrate’s court.

Counsel submitted that a trial court, in an action for malicious prosecution, can resort to examining the criminal proceedings, especially were same has been tendered in evidence, in order to determine the question of reasonable and probable cause. He relied on the case of IYALEKHUE V. OMOREGBE (1991) 3 NWLR (PT. 177) 94 AT 105 and said that the failure of the trial court to look at Exhibits A and A1, led him to make erroneous finding. He submitted that reasonable and probable cause in an action for malicious prosecution means an honest belief in the guilt of accused, based upon a full conviction, founded upon reasonable grounds of existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinary prudent and cautions man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed. He added that the mere fact that the prosecution of the Respondents in the Chief Magistrate’s court failed, was no proof of want of a reasonable and probable cause. He relied on the case of DR. CHIKE OBI v. M. N. CHUKWUMA (1964) ALL NLR PT. 491 at 494; saying that the allegation embodied in the complaint was investigated by the Police, as directed by the Chief Magistrate and the prosecution resulted from that investigation, showed that the Appellant had an honest belief in the guilt of the respondents at the time of the complaint; that the investigation and the taking over of the prosecution by the Police, showed a just cause.

On Issues 2, as to who caused the arrest and detention of Respondents, Counsel submitted that the burden of proof as to who caused the arrest and detention of the Respondents was on the Respondents; that the Respondents did not discharge that burden as they neither called the Police, who effected the arrest and detention in 2003, to testify nor tendered the case file in evidence; that neither the DPO nor the Area Commander was called as witness and the Respondent did no subpoena the police to produce the bail bond, to know the person that took them on bail consequent upon the allegation and the arrest based upon it. He urged us to hold that, if the DPO or the Area Commander had been called, their evidence would have been against the Respondents and the findings of the trial court would have been different. He urged us to believe the evidence of the Appellant, especially of DW3, which, he said was not rebutted or cross-examined. He relied on the case of AMADI v. NWOSU (1992) 5 NWLR (PT. 244) 284; OYIBOLRIRI & ORS. v. ESERORAYE ESHUHOBARE & ANR. (1991) 3 SCNJ.

Counsel further relied on the evidence of DW4, DW6 and PW3 as to who caused the arrest and detention of the Respondents and their mother and who took them on bail. He called on us to properly evaluate the evidence adduced, to properly know who actually caused the arrest and detention of the respondents by the police in Kafanchan in 2003. He submitted that it was clear from evidence adduced that the father of the Respondents caused their arrest and detention, and he urged to so hold.

On Issue 3, Appellant submitted that none of the parties called Constable Bulus Obadiah as a witness in the case. He acknowledged that under Section 100 of the High Court law Cap 67, Laws of Kaduna State 1991, the trial court had discretion to compel any person present in court to give evidence although not summoned, but said that Section does not do away with certain procedure to be followed before the trial Court can exercise the Power; that he has to exercise principles of fair hearing and has to first seek the consent of the parties to the suit before taking such evidence. He relied on the case of BELL-GAM V. BELL-GAM (1965) ALL NLR 110 AT 112.

Counsel further submitted that after testifying, the party who is affected by the evidence of the witness has to be given opportunity to cross examine the witness; that in this case no opportunity was given to the Appellant to cross examine Constable Bulus Obadiah in the confirmatory evidence he gave in support of the PW3; that there was no indication Constable Bulus Obadiah was on oath when he gave the evidence; and that there was no basis or need for the evidence of Constable Bulus Obadiah to corroborate the evidence of PW3. Counsel therefore faulted the trial court for relying on the evidence of Constable Bulus Obadiah, in conjunction with that of PW3, to hold that the Respondents had proved that they were arrested and detained by the police between 2003 and 2004, attributing the arrest and detention to the Appellant. He urged us to hold that the reliance on the evidence of Constable Bulus Obadiah was wrong and caused miscarriage of justice to Appellant.

On Issue 4, counsel said that the Respondents claimed two different sums of money as special damages in their amended Statement of claim:-
a. the sum of N870,000.00 being the purported amount allegedly spent to hire the services of counsel
b. the sum of N379,950 being their expenses allegedly recorded but not covered by receipts.
c. That the various sums of money spent to secure Police bail also amounted to special damages.

He submitted that for a claim for special damages to succeed, it must specifically be pleaded and itemized with sufficient particulars, and credible evidence must be led in strict proof of same. He relied on the case of HORST SAMMER & ORS V. FED. HOUSING AUTHORITY (1992) 1 NWLR (PT. 219) 548 AT 560; SAMEN HAWAY V. MEDICOWA NIG. LTD. (2000) FWLR (PT. 22) 1040 at 1050.

He argued that the amounts allegedly expended for the bail of the Respondents were not proved, especially as no receipt was tendered to support the claim.

On the award of N40, 000.00 as money paid by Respondents to their counsel, Osokpor Esq., to attend meetings in Imo State, as per Exhibit B, counsel submitted that that was wrong as Appellant did not invite the said Lawyer and that Appellant did not even attend the said meetings with his Lawyer, to suggest compelling the Respondents to bring their Lawyer.

On Exhibit G, as the basis for the award of N379, 950.00 as special damages (as amounts in respect of (genuine recording spanning from 2003 – 2005 spent for Police bails, transportation/chartering of vehicles) – Appellant submitted that the claims were not strictly proved. He adopted his earlier arguments on the issue of police bail. On the transport claims, he said no receipt was tendered nor the driver of the vehicle that carried the persons to Imo State called to give evidence.

On Exhibits F, F1, G, H, HI – H6, Counsel said they were not read in court and their contents never demonstrated before the court by way of explanation or illustration so that the court would know the amount expended on each item and how the total amount was got. He said that it, is not the function of the court to examine the said exhibits behind the parties, as it did on pages 174 – 175 of the Records, to arrive at a decision. He relied on the case of FIRST BANK OF NIGERIA LTD V. MAMMAN NIG. LTD. (2001) FWLR (PT. 31) 2890 AT 2906; OBASI BROTHER MERCHANT CO. LTD. V. MERCHANT BANKS OF AFRICAN SECURITIES LTD. (2005) 4 MJSC 1 AT 25; ALHAJI I. A. ONIBUCO & ORS. V. A.N. AKINBU & ORS. (1982) ALL NLR 207 AT 219.

Counsel further submitted that the Respondents did not even plead the facts relating to the evidence about the:
a. money expended on feeding and entertainment
b. purchase of a goat and money given to elders as requirement of tradition;
that such unpleaded facts and evidence cannot sustain a claim under special damage, as they go to no issue. He relied on GEORGE & ORS V. DOMILION FLOUR MILLS LTD. (1962) ALL NLR PT. 71 at 77; MOROHUNFOLA V. COLLEGE OF TECHNOLOGY (1990) 7 SCNJ 51 at 56.

On the claims of monies pleaded in paragraph 10(a) and 12 of Respondents pleadings, amounting to N235,050.00 as professional fees, transport and hotel bills, counsel said the Respondents did not give any evidence relating to any hotel, talk less of payment of hotel bills through out the hearing; that there was no evidence that any counsel was put in a hotel and no hotel was named. He submitted that pleading does not constitute evidence. He argued that the rest of the N465,550, which added to N379,950 to make the special damage of N845,500.00 was also not strictly proved; that apart from the ipsi dixit of the Respondents, or the fee allegedly paid to lawyers, those who issued the receipts were never called; that Exhibit D, C and C1 were not linked to any payment relating to the case at the Chief Magistrates Court; that they were merely dumped on the Court, just like Exhibit G; that the trial judge took to himself the onerous duty of spelling, writing and adding together the various amounts stated in the exhibits C, C1, D, F, F1, G, H, H1-H6 which contents were never demonstrated and related to the case, to arrive at its N845,500.00 awarded to the Respondents by way of special damages, thereby acting on its evidence and outside its function. He relied on DURIMINYA V. C.O.P. (1961) NNLR 70 AT 73- 74.
He urged us to hold that the award was not proper.

On Issue 5, Counsel submitted that after awarding N845, 500.00 as special damages, the trial court proceeded to award N500, 000.00 as general damages, and in assessing the general damages, took into consideration the expenses allegedly incurred by the Respondents over the period of the malicious prosecution, expenses incidental, to the events leading to special damages, whereas the said expenses had also formed the basis of the special damages, earlier awarded. He submitted that it was wrong to take into consideration in awarding general damages, matters which were taken into consideration in awarding special general damages; that that amounted to double compensation. He relied on the case of KEVEWI V. ODEGNESAN (1965) ALL NLR 98 AT 101; WEST AFRICAN SHIPPING AGENCY NIG. LTD. & ANR. V. MUSA KALLA (1979) 3 SC. 21 AT 32:
It is wrong for the learned trial judge to take into consideration for the award of general damages, matters which he should have considered in his award of special damages.”

He added that the assessment of the general damages to be awarded was therefore influenced by and dependent upon irrelevant and extraneous matters that were not pleaded and established by evidence. He urged us to interfere with the award of general damages. He relied on the case of UNION BANK OF NIGERIA LTD. V. ODUSOTE BOOKSTORES LTD (1995) 9 NWLR (pt. 421) 558 at 556 CHANRAI & CO. NIGERIA LTD V. KHAWAM (1965) ALL NLR 188 at 195.

On the whole, Counsel urged us to resolve the issues for the Appellant and allow the Appeal.

Responding, the Respondents’ Counsel Brain C.I. Nwogbo Esq., (who settled the Respondents’ Brief), on their issue 1, asserted that the pleadings by the parties and the oral evidence, adduced in Court by both sides, constituted the basis for the judgment by the trial Court. He referred us to paragraph 5 (b) (c) of the amended statement of defence (pages 30-31 of the Records) wherein, Counsel said, Appellant admitted, expressly, that he reported the Respondents to the Police in 2003, alleging threat to life; and that he also sued the Respondents in the Chief Magistrate’s Court in 2005 on the same issue of threat to life; that Appellant also admitted under cross examination as follows:
“… It is true that what my lawyer wrote in the statement of defence is in accordance with my instructions. What my lawyer wrote and the testimony of my witnesses constitute my case. I want Court to believe them … hold unto my testimony.” (page 127 of the Records)

Counsel conceded that the burden was on the plaintiff to prove material ingredients of malicious prosecution, to succeed. He relied on the case of ALH. JIBRIN GARBA V. ALH. ISA TAHIRU MAIGORO (1992) 5 NWLR (Pt. 243) 588, and submitted that the Respondents had discharged this burden by cogent and credible evidence in addition to admission of the Appellant, that the prosecution of the Respondents was commenced at his instance, being the one who set the law in motion against the Respondents, leading to their criminal charge in KAF/CMC/167C/05 He referred us to Exhibit A, A1 and E and to the evidence of PW1, PW2 and PW3 at pages 92 – 100; 101 – 108 and 130 – 134, respectively; that Appellant had said on page 127 of the Record:
“My main complaint at the Chief Magistrate Court Kafanchan against the plaintiffs was threat to my life and that of my half brother Barnabas. It was this complaint that made that Court to bring the plaintiffs for prosecution in that Court…”

Counsel submitted that that was an admission against interest and so the Appellant was estopped from denying, on appeal, that he did so; that a party is not allowed to make a new case, on appeal different from what he had at the trial Court. He said that such facts, which had been admitted, did not require further proof by the adverse party. He relied on the case of CHIEF FALADE ONISAODE & ANOR. V. CHIEF ASUMO ETEWUJU & ANOR (2006) 3 FWLR (Pt. 333) 5774 at 5790 and the case of USIFO II v. UKE (1958) SCNLR 109, in determining the question of reasonable and probable cause to ground malicious prosecution. He also relied on RICHARD OMOKARO IYALEKHUE v. OSIFO OMORGBE (1991) 3 NWLR (Pt. 177) 94 at 105 – 106:
“… reasonable and probable cause in an action for malicious prosecution means an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds of existence of a state of circumstances which, assuming them to be true, would probably lead any prudent and cautious man (sic) that the person charged was probably guilty of the imputed”

Counsel submitted that Exhibit A1 did not disclose cause of action to ground criminal prosecution; that the grouse of Appellant as contained in the document, has nothing to do with Sections 96 and 396 – Conspiracy and intimidation; he maintained that the trial Court did look at Exhibits A, A1 and E, scrutinized them and was satisfied that there was no reasonable and probable cause in the complaint of the Appellant. He relied on the evidence of DW5 (Barnabas) who had told the Court that he was not a party to the case and that he had begged the Appellant to withdraw the case at the Chief Magistrate Court; that he did not know the substance of the case. Of course, the Appellant had told the Court, concerning the DW5:
“My main complaint at the Chief Magistrate Court Kafanchan against the plaintiffs was threat to my life and that of my half brother Barnabas … Barnabas did not give me his consent before I went to that Court…”

Counsel referred us to Exhibit E, where he said the reason for discontinuing with the prosecution was stated as: “We are not ready, because the nominal complainant PW1 told me this morning he is no longer interested in this matter …”

He urged us to hold that the prosecution of the Respondents in the Chief Magistrate Court, failed, as already conceded by the Appellant and that the reason was because he lost interest in the matter, not because of Respondents’ conduct or show of remorse, but because Appellant did not, ab initio, believe in the guilt of the Respondents to the crime imputed.

Counsel added that investigation of a matter by the Police does not show automatic honest belief in the crime imputed by the complainant; rather the innocence of the accused is the presumption of the law. He relied on Section 36 (4) of the 1999 Constitution, saying that the prosecution must prove the guilt of the accused person.

Counsel submitted that there is no evidence on the Records that there were series of cases between the Appellant and the Respondents, rather it was the case of the Respondents that Appellant was always reporting them to the Police at Kafanchan and also taking them to Court, on the same issue of threat to life; that Appellant expressly admitted this is his evidence and pleading. He referred us to page 127 of the Records, and added that the Appellant did not contradict and/or controvert the evidence, that his complaints to the Police about the Respondents was to show them that “man pass man”, as confirmed by PW3. He relied on the case of LEADWAY ASSURANCE CO. LTD. V. ZECO NIG. LTD (2004) ALL FWLR (Pt. 210) 1268 at 1279, and urged us to hold that there was malice by the Appellant against the Respondents.

On the issue of proof, Respondents submitted that they had proved their case of malicious prosecution, and said that DW4 and DW7 who were Appellant’s witnesses (and Police Officers) were those who had the duty to tender the crime diary and the documents that would have shown that Appellant did not make the complaint against the Respondents, but failed to do so; that that gives effect to the presumption of law under Section 149 (d) of the Evidence Act “that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it…”

He (Counsel) added that DW4, who alleged that another person (not Appellant) lodged the complaint against the Respondents and that the 1st Respondent made an “undertaking to maintain the peace” failed to produce the Respondents’ statement and the undertaking or the crime diary, to disclose the said person who made the complaint, other than the Appellant. He said that such evidence by DW4 must fail, and he relied on the case of ALH. ABBA SATOMI SALEH V. BANK OF THE NORTH LTD (2006) 2 FWLR (Pt. 317) 3340 at 3357:
“… evidence that has documents to buttress it must be backed up by documents. Failure of Appellant in the instant case to produce documentary evidence that he could rely on was fatal to his case.”

Counsel added that the burden of establishing that he (Appellant) was not the one that made the complaint against the Respondents rested on him (Appellant) through out the trial and the same did not shift and so the Court was right to hold that the Respondents’ case was not controverted and was rather supported by the Appellant. He relied on the case of MEMUDU AJIBOYE V. ALH. OLOYEDE ISHOLA (2007) 1 FWLR (Pt. 348) 175 at 199 – 200; ONISAODU & ANOR. V. ELEWUJU & ANOR. (Supra) at 5789; 5792 – 5793.

Counsel conceded that the DW3 was not Cross-examined, but said that the evidence of the DW3 went to no issue as between the parties in the case; that it is not even the law that where a witness is not Cross-examined his evidence becomes weighty and believable. Thus, he said the case of GAJI v. PAYE; (supra) and OYIBIRI & ORS V. ESERORAYE ERHUHOBARAE & ANOR were inapplicable.

Counsel added that a Court must confine itself to the evidence adduced before it and that the trial Court observed this principle with respect to the evidence of PW3. He relied on the case of RAPHEAL EJEZIE & ANOR. V. CHRISTOPHER ANUWU & ORS (2008) 12 NWLR (Pt. 1101) 446; IKENTA BEST NIGERIA LTD. V. A.G. RIVERS STATE (2008) 6 NWLR (pt. 1084) 612.

On issue their 2, Counsel for the Respondents posed some questions- Does the confirmation by the Court of constable Bulus Obadiah amount to irregular procedure? Did the Appellant, whose Counsel was present and fully participated in the proceedings of that day, object to the alleged confirmation? What did constable Bulus Obadiah confirm? Did the Lower court rely on what constable Bulus Obadiah confirmed to form its opinion?

Counsel submitted that PW3, the mother of the Respondents, had told the Court that she was in detention at the instance of the Appellant and not at the instance of her husband, as the Appellant alleged; that her evidence was in support of the Respondents, who consistently said that their arrests in 2003 and 2004 were at the instance of the Appellant; that the PW3 was in the cell at one time with the Respondents; that this was what the Constable Bulus Obadiah confirmed, that he saw PW3 in the cell while her husband was outside, crying; that he (Obadiah) never gave evidence whether the arrest and detention was at the instance of Appellant or not, and the trial Court did not inquire; that there is no where, on the records of Appeal, that the trial Court arrived at the conclusion that the Appellant was the one who caused the detention of PW3.

Counsel submitted that a party, who had opportunity of objecting to an irregular procedure, but failed to do so, timeously, cannot be heard to complain on appeal. He relied on the case of MIKE NKWOCHA & ORS V. MTN NIG. COMMUNICATION LTD & ANOR (2008) 11 NWLR (Pt. 1099) 439 at 460 – 461; OBISI v. CHIEF OF NAVAL STAFF (2004) ALL FWLR (pt. 215) 193 at 200.

Counsel submitted that the purported confirmation of Bulus Obadiah did not occasion miscarriage of justice, neither did it weigh on the mind of the judge; that the confirmation did not affect the judgment. He urged us to so hold.

On issue their 3, whether the Respondents proved their claim before the trial Court, Counsel answered in the positive and placed reliance on the evidence of PW3 and to the admission by the Appellant as per paragraph 3 (k) of the statement of defence:
“that it was in the case of C.O.P. V. CHRISTIAN OGBONNA & 1 OR that BRAIN C.I. NWOGBO appeared and it is only once before the intervention of MR. BARNABAS OGBONNA and CHIEF OBI …” (page 37 of the Records).

The Respondents also relied on the evidence of Appellant at the Court on their representation by Counsel and said that since Appellant himself and against his own interest, admitted the evidence of the Respondents in respect of legal representatives in the suits, it was no longer a live argument, on appeal, that Exhibits D, F and F1 did not disclose the reason/purpose of the payment. Counsel noted that Appellant did not object to the tendering of Exhibit F and F1 (which he said Appellant erroneously called C and C1) and that he never Cross-examined on the Exhibits (D, F and F1), and never contradicted the witnesses on the claims on the Exhibits; that the amounts on the exhibits were pleaded, tabulated and evidence of each given by the Respondents, and the Court admitted them, taken as read. He said that the Lower Court was therefore right in attaching weight to them, believed the truth of the facts contained in them and acted upon them; that it was too late for Counsel to turn around and address this Court on the issue that ought to have been done at the trial Court.

The same submission, Counsel said, went for other exhibits, G, H3, H4, H5 and H6. He said the trial Court was right in believing them and acting on them.

In proving special damages in a civil matter, Counsel submitted that the Respondents are expected by law to plead the particulars in the statement of claim and particularize the losses, to make the calculation possible. He relied on the case of OKOROKWO V. CHUKWUEKE (1992) 1 NWLR (Pt. 216) 175; IMANA V. ROBINSON (1979) 4 SC 1 at 23.

Counsel referred us to paragraph 12 of the Amended statement of claim (page 25 of the Records) where he said, the Respondents tabulated the items making the special damage, their amounts and receipt numbers; that the receipts were tendered and admitted without tangible objection and Appellant did not Cross-examine nor contradict the Respondents on them.

On what strict proof of special damage connotes, Counsel relied on OKORONKWO V. CHUKWUEKE (supra) which said:
“… strict proof of damages means no more than that the evidence must show the same particular as it is, necessary for its pleading.
It should consist of particular losses, which are exactly known or accurately measured before the trial. It does not mean unusual proof …”

Also in IMANA V. ROBINSON (SUPRA) the Court held:
“… a plaintiff who has the advantages of being able to base his claim upon a precise calculation must give the defendant access to facts which make such calculation possible …”

Counsel urged us to hold that the Respondents met these conditions and so proved their claims of special damages at the trial Court.

On issue 4, Counsel relied on the pleadings (paragraphs 11 and 12) of the statement of claim and on the oral evidence of the Respondents and PW3 on the general damages awarded. He submitted that general damages stem from the events that caused the special damages; that it is awardable, once the Court believes the case of the plaintiff, and in doing so, it is the trial Court that makes appropriate assessment of what constitutes adequate damage to be awarded. He submitted that the trial Court acted properly in this case and relied on the case of EZEANI V. EJIDIKE (1964) ALL NLR 395 (cited by Appellant), saying that the same supported the case of the Respondents, but that Appellant mis-applied the ratio decidendi therein.

He urged us to resolve the issues against the Appellant and dismiss the appeal.
RESOLUTION OF ISSUES
I shall consider the issue 1 and 2 by the Appellant together, as the two constitute a challenge to or call for appraisal or evaluation of the evidence on which the trial Court based its decision. In view of the state of pleadings and in the light of the evidence adduced, was the trial Court right in holding for the Respondents and was Appellant responsible for the arrest, detention and prosecution of the Respondents? And was the prosecution malicious?

A brief facts of this case shows that both Respondents and Appellants were of the same father but different mothers. Appellant was the eldest brother of the Respondents but of a different mother to the Respondents. Before their father’s death, the Appellant had quarrel with his father and half brothers over the father’s property and the said quarrel resulted in frequent domestic squabbles, which involved the Police and Appellant was at the centre of same; the parties, their said father and the mother of the Respondents were at one time or the other at the Police Station in Kafanchan in 2003, 2004 and 2005; the Respondents were detained and their mother. They were also in court at different times, Chief Magistrates’ Court and Upper Area Court, Kafanchan. Those squabbles resulted in this case which was founded on malicious prosecution of the Respondents by the Appellant. The learned trial Court, after taking evidence in the case and submission of Counsel, had held in favour of the Respondents, awarding the sum of N845,500.00 and N500,000.00 as special and general damages, respectively, to the Respondents. The Court refused the Counter-claim raised by the Appellant and dismissed the same.

To establish a claim of malicious prosecution the plaintiff has a duty to plead and lead evidence to establish that:
1. he was prosecuted in a criminal charge, at the instance of the defendant;
2. that the defendant was the person who set the law in motion against him, leading to the prosecution;
3. that the criminal prosecution terminated in his (plaintiffs) favour
4. that the prosecution was malicious, as
5. the defendant acted without reasonable and probable cause. See the case of EJIKEME V. NWOSU (2002) 3 NWLR (Pt. 754) 356; (2001) LPELR CA/J/76/94; BALOGUN v. AMUBIKAHUN (1989) NWLR (Pt. 107) 18; MUSA v. YUSUF (2006) 6 NWLR (Pt. 977) 454; (2006) LPELR CA/J/157/2001.

The learned trial Court, in its findings on the issue on page 170 – 171 said:
1. “… Even the defendant himself clearly stated both in his evidence – in – chief and under Cross-examination that he sued the plaintiffs in a total of three Lower Courts on essentially the same issue of threat to his life. At least Exhibit E is here to support him, like Exhibit A and A1 and the plaintiffs’ evidence. He was therefore the person that set law in motion against the plaintiffs leading to the criminal charges.
2. By Exhibit E, the plaintiffs were prosecuted and the 1st information Report was terminated in plaintiffs’ favour
3. I earlier held that the prosecution was without just cause and I now add that by the entire circumstances of the case, it was malicious.
4. I equally agree with the definitions and holding in RICHARD OMOKARO INNEH and BALOGUN cited by plaintiffs that the defendant acted without reasonable and probable cause in the case against the plaintiffs.”

These findings have largely not been disputed or challenged by the Appellant. Rather, Appellant had argued in this appeal that the Respondent did not call the D.P.O, Area Commander, nor any other Police Officer, who effected the arrest of the Respondents, together with their mother (PW3) and put them in the cell, to give evidence; that no independent witness was called by them to testify for them; and that the Respondent’s father caused the arrest of the Respondents not him (Appellant).

I do not think it was the duty of the Respondent to call the said Police Officers to debunk the assertion the Respondents made, as the admission by Appellant that he was responsible for the prosecution of the Respondents (as observed by the trial court), and as evident by Exhibits A, A1 & E had shifted the burden to the Appellant, to debunk the claim, by calling the Police to show that another person (other than Appellant) instigated the arrest, detention and prosecution of the Respondents, and that their prosecution was on reasonable and probable cause. It was, in fact, the duty of the Appellant to call the alleged Police Offices to clear him, having apparently worked in response to his (Appellants) complaint. The DW4 and DW7 (Police Officers) who testified for Appellant, also failed to absolve him, as they failed to produce the crime diary report, to show that it was not Appellant that lodged the complaint against the Respondents, or to establish their allegation that the Respondent signed an undertaking to keep the peace!

Of course, the presumption of law, under Section 149 (d) of the Evidence Act (now Section 167 (d) of 2011 Act) is to the effect that if such undertaking existed, it would have been against the Appellant, if produced at the trial and that was why the DW4 or the Appellant did not produce it at the trial.
In the case of SALEH V. BANK OF THE NORTH LTD. (2006) 2 FWLR (Pt. 137) 3340 at 3357 it was held that:
“… Evidence that has documents to buttress it must be backed up by documents; that failure of Appellant… to produce documentary evidence that he could rely on was fatal to his case”

Thus, the assertion by DW4 (a Police Officer) that the Appellant’s father made the complaint against the Respondents (who were also his children) and that the Respondents wrote an undertaking to keep the peace could only have been established by the documents – crime diary, showing who lodged the report and the alleged undertaking, in the face of the conflicts. It also leaves one to wonder why the father of the Respondents would be crying at the Police Station, if he was responsible for the arrest and detention of the Respondents, and their mother!

There is also the evidence by the DW5, (Barnabas) at page 115 of the Records to show that he (Barnabas) was not a party to the case, and that he had even begged the Appellant to withdraw the case at the Chief Magistrate’s Court; he said that he did not know the substance of the case.
But the Appellant had said, under cross examination, on page 127 of the Records:
“… My main complaint at the Chief Magistrate Court Kafanchan against the Plaintiffs was threat to my life and that of my half brother, Barnabas. It was this complaint that made that court to bring the plaintiffs for prosecution in that court. Barnabas did not give me his consent before I went to that court…”

That appears to expose the dishonesty and mischief behind the complaint by the Appellant, to the effect that the allegation of threat to his life and that of Barnabas was not well founded; that it was fuelled by malice. If Barnabas, whose life was also (allegedly) threatened, comes out to say that he did not know the substance of the case, and that he begged the Appellant to withdraw at the Magistrate’s Court, then the real intention of the Appellant in subjecting his half brothers (Respondents) and their mother to the ordeal of arrests and detention and subsequent prosecution, went beyond the allegation of threat to his life!
A glimpse of the mindset of the Appellant in all the fake complaints was given in the evidence of PW1 (Ogadinma Ogbonna) on pages 91-92, when he said:
“… Our father died in 2004. In 2003 the defendant arrested the first plaintiff vide his complaint to the police who did so. The police came from the Area Command Police Headquarters Kafanchan to arrest first plaintiff. The first plaintiff was then detained for three days. Myself and my mother took food to him during those days. On the third day of first plaintiff’s detention, the defendant went and told the police to arrest me and our mother, Peace, because he (defendant) said we were the ones engineering the first plaintiff. The police then arrested me and our mother, and kept us inside police cell with my mother. Later the next day our father came and bailed us out. The police told us that they would take us to court the following day after granting us their bail. The defendant and our late father were present when both the granting of the bail took place and when police informed of the possible arraign (sic) in court the following day. Myself and first plaintiff gave out money before we were granted bail. I personally gave N20, 000= first plaintiff added his own money and together gave the police. I cannot remember how much first plaintiff gave (sic) this money to the police. Police did not give us receipt as they do not issue receipts for such monies. The defendant instantly told the police that he did not need a court case, because of the nature of his business. He told the police that he just wanted to punish us that was why he took us, to police station. Eventually we were not taken to court.”
The above was corroborated by the PW2 and PW3 (Mother of the Respondents).
PW2 said on page 103 of the Records:
“… the matter did not go to court because the defendant told the Police that he did not want to go to court because it would affect his business. That he just wanted to deal with us for not hearing him. So it ended at the police station at the defendant’s instance. In 2004 the defendant used the police again and arrested us, because he said he did not want to see us within his environment, where he carried out his business… We were detained from morning to evening… the DPO looked into the matter and discovered that it was a baseless allegation and advised the defendant to stop disturbing us…”

The PW3, as per the evaluation of her evidence by the trial court, on page 146 of the Records, said:
“… The defendant reported 1st Plaintiff to the police on allegation of threat to his life and that of his wife; that this was a lie against the 1st Plaintiff, that when the DPO wanted to take the case to court the defendant refused on the ground that he only wanted to deal with them, and show them that ‘man pass man’. At that point the DPO then said it was a family affair requiring family solution…”

Of course, the Appellant finally admitted causing the arrest and detention of the Respondents and of their mother and instituting series of cases against them including criminal charges. He said, on page 122 of the Records:
“I first took first plaintiff to court on two occasions, for threat to my life and the N30, 000.00 he was owing me. Both cases were at the Upper Area Court, Kafanchan … The 2nd threat was after our father’s burial, same threat to my life. I returned to same Court. He then sent one Benco to me who served our father and pleaded with me and I stepped down the case again. The third case was at the Chief Magistrates Court Kafanchan where I sued the two plaintiffs. It was on the same threat to my life… My half brother, Barnabas was also threaten (sic) by the plaintiffs. So, on seeing the conspiracy, I had to go to court to seek protection for every body, since I am the eldest of them. At the Chief Magistrate Court two lawyers appeared for the plaintiffs … The complain (sic) was later sent to the police for further investigation. The matter was reported back to court. At the police station somebody intervered (sic) Mr. Chief Egwe Obi… on the ground that it was our father who caused the problem and that if plaintiffs showed remorse I should withdraw the case. I heeded to the intervention and that of the DW5 after the matter was reported back to Court. I then told my lawyers to withdraw the case in Court due to the above intervention. The case was then withdraw (sic) from Court, so it was not concluded at the Chief Magistrate Court…”

Though the Appellant, consistently, denied lodging complaint with the police against the Respondents, he admitted taking them to court on three occasions on the same complaint of threat to his life. I cannot imagine how a case of threat to life (a criminal charge) could, be prosecuted without investigation by the police and the involvement of the Police!
Whatever the situation, I agree with the findings of the learned trial Court that the ingredients required to establish malicious prosecution had been established in the case by the Respondents, as the Appellant appeared to have supplied some of the needed particulars, quite unconsciously:
1. He approached three Courts at separate times on the same complaint of threat to his life by the Respondents and each of the cases failed to result in any conviction, as they were all either withdrawn or terminated in favour of the Respondents.
2. At the background to the complaints (alleged threat to life) and the prosecutions was quarrel and struggle over family property, which the Appellant appeared as the aggressor.
3. Appellant merely used the Police and the Court processes to advance his ego and cow the Respondents as he used the Police and Court process to deal with the Respondents in his own way or show them that “man pass man”!
4. He was actuated by malice and so the prosecutions were malicious, there being no reasonable or probable cause, or real belief in Appellant of the guilt of Respondents.

This brings to the fore, again, the sad reminder of how the Police sometimes allow themselves to be willing tools in the hands of mischief makers to pursue evil private scores/agenda of trouble makers, like the Appellant, and compromise the law and proper function of their Office.
I had cause to deprecate this in the case of GASAU V. UMEZURIKE (2012) ALL FWLR (Pt. 655) 89; (2012) 28 WRN 111 at 145 “… that the police have no business helping parties to settle or recover debts. We also deprecated the resort by aggrieved creditors to the Police to arrest their debtors using one guise of criminal wrong doing or another.” See also IBIYEYE V. GOLD (2013) ALL FWLR (PT.659) 1074; OSIL V. BALOGUN (2012) 7 WRN 143 at 173-174.
Of course, a man who procures the Police to do some illicit duties for him should be ready to face the legal consequences of that illegality, and the law is well settled on this. See the case of UDEAGHA V. NWOGWUGWU (2013) LPELR CA/K/44/2005; EJIOFOR V. OKEKE (2000) 7 NWLR (pt. 665) 363; AGBAKOBA V. SSS (1994) 6 NWLR (pt. 351) 475.

Evidence is overwhelming that the Appellant actively set in motion the legal processes that resulted in the prosecution of the Respondents on three occasions (including charge No. KAF/CMC/167C/05) over the same allegation of threat to his life and he graciously admitted the same. Having upheld the decision of the Lower Court that the prosecution were actuated by malice, I resolve the 1st and 2nd issues against the Appellant.

Issue 3 was on the evidence of one Constable Bulus Obadiah, whether the adoption of that evidence and reliance on it had occasioned miscarriage of justice. Of course, the Respondents had argued, strongly, that the Lower Court did not place any reliance on the confirmation made by the said Constable Bulus Obadiah and that the evidence of Obadiah did not count in the decision of the Lower Court.

As earlier pointed in this judgment, Mr. Bulus Obadiah, a Police officer, happened to be in court on the date PW3 (the mother of the Respondents) gave evidence. He was posted to the Court on official duties, and he was referred to by the PW3 as having seen the husband of the PW3 crying outside the cell, where the PW3 and Respondents were kept at the police station. Mr. Obadiah had confirmed to the Court that he was even the Police Officer that entered the cell and told PW3 that her husband was crying outside. (See page 170 of the Records).

I cannot see anything wrong with the Lower Court seeking confirmation by Mr. Obadiah of PW3’s evidence touching the appearance of her husband outside the cell crying, or his name being mentioned and referred to by the PW3. The Court had power to call on the Constable to confirm the allegation or refute it in the circumstances. See Section 100 of the High Court Law of Kaduna State. But the confirmation by Mr. Obadia, as can be gleaned from the records and judgment, was not of any moment to the case and had no determinant role in the decision of the Court on the liability of Appellant for malicious prosecution, Appellant having admitted taking the Respondents to Court on three different occasions on the same allegation of threat to his life. And there was sufficient evidence of how the Appellant had his way with the police in the arrest and detention of the Respondents and the PW3, at his pleasure. I hold that the listening to the confirmation by the Constable Bulus Obadia by the court did not offend any law, and that since the said confirmation did not count in the final decision of the trial Court, the same did not occasion any miscarriage of justice.

Appellant’s issues 4 and 5 touched on the special and general damages awarded by the trial court. Were the various heads of special damages, pleaded and strictly proved, and was the general damages justified?

What constitutes special damages in case of malicious prosecution? Should the trial Court take into consideration all the verifiable expenses of the plaintiff incurred in the course of fighting or defending the malicious prosecution?

It would appear reasonable to protect the plaintiff who succeeds in a case of malicious prosecution to recoup the legitimate expenses which he incurred to fight and ward off the assault on him by the defendant, including the legitimate fees he paid to defend himself at the trial. I do not, however, think that that can extend to all the private jottings by the plaintiff, relating to the food he ate and the transportations he made during the time, to defend the case brought against him.

On pages 174-175 of the Records of Appeal, the trial court took time to reproduce the monetary claims of the Respondents as per the exhibits admitted therefore. Exhibits B, C and C1, H to H6 were from E.P. Osolyor Esq., showing receipts for payment of legal fees by the Respondents for legal representations, transport and hotel accommodation for 2003, 2004 and 2005, amounting to N100,000.00 (2003), N163,000.00 (2004) and N137,000.00 (2005), all amounting to N400,000.00. These were pleaded and evidence adduced on pages 96 -97; 102-105 of the Records.

Exhibit D, E, F and F1 were receipts by Gborikh – Mt Sanai Chambas and Brain C.I. Nwogbo, acknowledging payments by the Respondents for legal services etc in 2004 and 2005, amounting to N65, 550.00. See page 105 of the Records.

The total receipts by the lawyers who defended the Respondents between 2003 and 2005 in fighting the aggression of the Appellants therefore amounted to N465, 550.00 (and the same were pleaded in detail in paragraph 12 of the Amended Statement of Claim). Appellant, under cross examination, also admitted the representation of Respondents by two lawyers (page 122 of the Records).

Exhibit G carried the recording of other expenses by the Respondents, and on this the trial judge said.
“… They are genuine recording spanning from 2003 – 2005. The amounts were in respect of money spent for Police bails, transport, chartering of vehicles to convey people to Imo State for meetings. All the expenses indicated that they were in respect of the manager’s case (defendant). In all, they are five recordings all totaling: N379, 950. Those recordings are in tandem or agreement with the Plaintiffs oral testimonies over such expenses. More over, this Exhibit G was admitted without any objection by the defendant’s counsel … and he kept silent over it even in his address. I hold, therefore, that for the special damages, the following amounts were proved by the Plaintiffs”.

The trial court then added the two heads of claims N465,550.00 and N379,950.00 to arrive at the total of N845,500.00, as special damages.

Some of the recordings on Exhibit G were said to be money paid to the police for the bail of the Respondents. They were all recordings by the Respondents on exercise book. Of course, there were no receipts issued to back them up. The trial court had said that Exhibit G was admitted without objection by the defence counsel and so the contents were deemed, admitted. That cannot be correct, as the burden of proof remained firm on the Respondent to prove the expenses on the Exhibits G, strictly. As long as the recordings in Exhibit G were not acknowledgment by a 3rd party of spendings by the Respondents in defence of the malicious prosecution, they can not, in my opinion, be taken as established expenses, incurred by the Respondents in defence of the malicious prosecution. It may not be denied that the Respondents spent some money on the police to secure their bail, but such spendings cannot pass as special damages, as they would amount to unlawful or illegal spendings, since bail is, by law, free. The Respondents should not be therefore rewarded for engaging in unlawful act, if they infact paid money to the police to secure their bail. The more reason they could not have expected receipt from the police to acknowledge the payment!
On what constitutes special damages, this Court in the case of (UDEAGHA V. NWOGWUGWU (2013) (supra) said:-
“The determination of what constitutes special damages is therefore not a matter of conjecture, assessment or estimation by the Court and can therefore not be considered in the con of nominal award, as was done by the trial judge in this case, where the sum of N20, 000.00 was awarded to the Respondent as “nominal” damage for his claim of N1, 903, 196.60 as special damages. Even though the evidence had established that the Respondent’s skin were seized by the Police in the course of arrest of the Respondent, and it was mishandled and later released (but not in the state earlier seized), to qualify for special damages, clear evidence needed to be led to establish the actual monetary value of the skins recovered, at the time of release of same to the Respondent, as special damages can only be in respect of ascertainable, proved amount. By making a nominal award of N20, 000.00 to the Respondent, the lower court had expressly admitted absence of the correct basis for the award, and that cannot be in the domain of special damages.”

Issues of special damage cannot therefore be left to speculation and conjecturing as was done by the trial court in respect of the contents of Exhibit G. I therefore hold that the said sum of N379, 950.00 representing the private jottings of the Respondents as expenses incurred by them did not qualify as special damages and that amount is set aside and knocked off the amount awarded as special damages. What therefore remains as legitimate special damages are the claims represented in the legal fees paid to the lawyers as per Exhibits B, C, C1, D, E, F, F1 amounting to N465,550.00

The award of N500, 000.00 as general damages cannot be interfered with by this Court, as the Appellant has not shown any reason, for us to interfere with it.

Award of general damages is always at the discretion of the trial court, and it need not even be pleaded or proved, provided it flows, naturally, from the claim and from the decision of the court. See the case of Harsaalic Ind. Ltd V. Usang (supra):
“It is trite law that general damage is implied by law and need not be specifically pleaded. General damages is such a loss which flows naturally from the defendants’ act. It arises by inference of law and need not be proved by evidence. It suffices if it is generally averred. See also Incar Motors V. Benson (1975) 3 SC 177; Ayangoke & Anr. V. Habib Nig. Bank Ltd. (2013) LPELR – 21806 CA

I cannot therefore fault the discretion of the trial court on the general damages.

Apart from the aspect of the special damaged awarded, that is, N379,950, which I have held did not qualify as special damage, I resolve the issues 4 and 5 against the Appellant.

On the whole, this appeal is without merit, apart from the issue of N379, 950.00, which was erroneously included in the list of special damage and which has been set aside.

The appeal is, accordingly, dismissed, as I uphold the decision of the trial court and the special damage of N465,550.00 and general damages of N500,000.00, totalling N965,550.00 (Nine Hundred Sixty Five Thousand, Five Hundred and Fifty Naira Only).

Appellant shall pay the cost of this appeal, assessed at N40, 000.00 (Forty Thousand Naira) Only.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: My learned brother has succinctly dealt with the issues postulated by the parties for determination in this appeal. Malicious prosecution is a tort or a civil wrong which enables a person who is the subject of groundless and unjustified court proceedings (“the prosecution proceedings”), to seek a civil claim for damages against his prosecutor.

In order for a plaintiff to succeed in an action for malicious prosecution, he must prove: (1) the prosecution proceedings (normally criminal) were initiated by the prosecutor against the plaintiff; (2) termination of the prosecution proceedings was in the plaintiff’s favour; (3) no reasonable cause for the prosecution; (4) evidence of malice on the prosecutor’s part; and (5) the plaintiff suffered actual damage. The onus is on the plaintiff to prove each of these elements. The following are examples of prosecution proceedings terminated in the plaintiff’s favour: (a) acquittal of the plaintiff on the merits of the case; (b) termination of the case where conviction is quashed for technical reasons such as a misdirection to the jury by the trial judge; (c) discontinuance of the prosecution by the prosecutor before verdict; (d) termination of the prosecution because the State enters a nolle prosequi. A nolle prosequi is a formal notice of discontinuance of an action lodged by the prosecution.

If the prosecution proceedings are terminated in a way that means that the accused person is not actually found guilty by a Court (such as where a nolle prosequi is entered), the plaintiff does not need to positively prove his innocence in order to recover damages for malicious prosecution. See Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527 and Beckett v. New South Wales (2013) HCA 17. The plaintiff must prove that the prosecutor started the prosecution without reasonable cause.

In Balogun v. Amubikahun (1989) NWLR (Pt.107) 18 it was held that all the four elements above must be present for successful action for malicious prosecution, and the onus is always on the plaintiff to prove each and everyone of them, per Belgore, J.S.C. (as he then was). He further stated that in Nigerian situation, once a report or complaint is made to the police and strenuously pursued as in this case, and through the same mischievous lying, the police not only made an arrest of the incriminated person, but proffered a charge against him and take him to court for prosecution, the complainant has set in motion the law for a person clothed with authority to arrest and charge the incriminated person. The complainant, having made a false statement, maliciously, and thus causes a judicial act like the issue of arrest warrant to the prejudice of the plaintiff, will be liable for malicious prosecution even though he may not technically have been the prosecutor in the strict sense.

According to McGregor on Damages 13th Edition, page 951, for the defendant to institute certain types of legal proceedings against the plaintiff maliciously and without reasonable and probable cause is actionable, but only on proof of certain damage. There are three sorts of damage laid down by Lord Holt in Saville v. Roberts (1699) 1 Ld. Roberts 374, 378, any of which would be sufficient ground to support this action: (1) the damage to a man’s fame, as if the matter whereof he is accused be scandalous (2) such as are done to the person; as where a man is put in danger to lose his life, or limb, or liberty (3) damage to a man’s property, as where he is forced to spend his money in necessary charges to acquit himself of the crime of which he is accused.”
The satisfaction of one or other of these conditions points to what kinds of legal proceedings are actionable. In the first place, most criminal prosecutions are actionable as satisfying all three conditions.

Also, additional costs incurred by a Plaintiff beyond the costs awarded constitute legal damage sufficient to ground the action, it may be that all criminal prosecutions are to be regarded as satisfying the third condition. In the second place, and conversely most civil actions and proceedings are not actionable as they satisfy none of the three conditions,” at least as long as it is held that the additional costs incurred by a party beyond taxed costs do not constitute legal damage which will ground an action. Exceptionally, there are some civil proceedings which have been held to suffice, viz. petitions to have a trader adjudicated a bankrupt and petitions to have a company wound up as insolvent. Condition (1) is satisfied in these, for the very allegations involve damage to the fair fame of the person assailed, which cannot be afterwards repaired by the failure of the proceedings. Thirdly, there is malicious arrest of the Plaintiff by the judicial process: here at least condition (2) must be satisfied. And fourth and last is malicious execution against the property of the Plaintiff by judicial process condition (3) will be satisfied in all such cases.

McGregor further stated that the principal head of damage here is to the fair fame of the Plaintiff, the injury to his reputation. In addition it would seem that he will recover for the injury to his feelings, i.e. for the indignity, humiliation and disgrace caused him by the fact of the charge being preferred against him. The principal, and in many cases probably the only, head of damage is the injury to the reputation; and perhaps injury to feelings comes in. Pecuniary loss by injury to or loss of, business may also be included.

Nevertheless, I must observe that the damages awarded by the lower Court in this appeal, as general damages might have been brandished so, but, in McGregor on Damages, some of those items classified were under the head of damages claimable by a Plaintiff in a proceeding for malicious prosecution. Further, in the instant appeal, the evidence led by the Respondents are clear which accord with their pleadings i.e., as injury to feeling. There is overwhelming evidence that the Respondents were maliciously prosecuted by the Appellant by using the Police and other machinery against them.

As for the actual award of general damages of N500,000 by the trial Court after the award of special damages had been made by it, it is well established that even though the measure of damages in tort is not the same as in an action in contract, the rule against double compensation in both remains the same. See Armels’ Transport Ltd v. Transco (Nig) Ltd (1974) All NLR page 863, per Irikefe, J.S.C., Also, Coker, J.S.C., in Ejowhomu v. Edok-Eter Ltd. (1986) NWLR Part 39 page 1, when considering the validity of the general damages sought by the Plaintiff in the action for damages on nuisance opined thus:
“I have looked through the particulars of damages which are numbered (a) to (g). In addition, there is the claim of general damages. The special damages claimed include the market value of death of 2,035 layers, loss of profit on 1,000 seriously underweight layers, loss of profit “expected full lay of eggs”, cost of drugs, extra cost of transporting feed-mash and cost of improvised temporary foot bridge. I entertain doubts whether the plaintiff will not be claiming double compensation if he is entitled to general damage in addition to the various items set out as special damages. I have in mind the principle enshrined in such cases as Odumosu v. A. C. B. Ltd. (1976) II SC 55, P 72. In Lagos City Caretaker Committee and Anor. v. Benjamin O. Unachukwu & Anor. (1978) 3 SC 199 at p 206. “It has been stated by this Court in numerous cases that where a victim of tort has been fully compensated under one head of damages for a particular injury, it is improper to award him damages in respect of the same injury under another head: See per Unsworth FJ in Onanuga v. Micho & Co. (1961) All NLR 324 at 328 wherein it was held that a contractor whose contract was wrongly terminated was entitled to recover any balance of payment for work done and also to loss of profit on the work he has been prevented from doing. An additional award as general damages made by the Court below was set aside as being unjustified double compensation.
In Henry Ezeani & 6 Others v. Abraham Ejidike (1964) 1 A NLR 402, Brett JSC stated at p 405:-
“Although the measure of damages in an action in tort is not the same as in an action in contract, but the rule against double compensation remains the same, and applies to both.” In the aforementioned case the Plaintiff claimed in an action for conversion the value of the goods converted and general damages. The trial judge awarded him both. This Court set aside the award of general damages as being double compensation.” (Underlining mine)
All these accentuate the stance that even in an action in tort, where a party has been fully compensated under special damages, award of general damages would amount to double compensation which the law has consistently frowned at.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, Mbaba, JCA. I agree with the reasoning and conclusions reached therein.

This is a case of malicious prosecution. The main complaint of the Appellant on this appeal was on the evaluation of evidence carded out by the lower Court. It is settled that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the con of the surrounding circumstances, and this is evaluation.

A finding of fact by a trial Court involves both perception and evaluation – Guardian Newspapers Ltd V. Ajeh (2011) 10 NWLR (pt 1256) 574, Nacenn Nigeria Ltd V. Bewac Automotive Producers Ltd (2011) 11 NWLR (pt 1257) 193, Wachukwu V. Owunwanne (2011) 14 NWLR (pt. 1266) 1.

Reading through the arguments of the Counsel to the Appellant on the issue, the grouse appears to be more with the refusal of the lower Court to sanction the Respondents for the non-calling of particular witnesses, such as the Divisional Police Officer or any other Police Officer from the Kafachan Police Station, and non-tendering evidence of specific pieces of evidence, such as police case file or bail bond in proof of their case, rather than with the evaluation of the evidence actually led by the parties carried out by the lower Court. Counsel, with respect, obviously forgot that there is no duty on a plaintiff to call a particular witness or to tender a particular piece of evidence in proof of his claim, and a trial Court cannot sanction a plaintiff for not doing so. The responsibility on a plaintiff is to prove his case on the preponderance of evidence led and duty of a trial Court is to see whose evidence, between a plaintiff and a defendant, preponderates more in proof of a fact in issue.

In proof of their case before the lower Court, the Respondents testified personally and called one additional witness and they tendered seventeen exhibits. Some of the exhibits were (i) a criminal summons issued by the Chief Magistrate Court Kafachan at the instance of the Appellant against the second Respondent for a two count charge of conspiracy and intimidation, Exhibit A; (ii) an application for the issuance of a direct criminal summons against the Respondents made by the Appellant on an allegation of threat to life, Exhibit A1; and (iii) a criminal summons in the Chief Magistrate Court Kafachan in Charge No KAF/CMC/167/C/2005 issued by Commissioner of Police against the two Respondents as a result of Exhibit A1. There was evidence before the lower Court that all the criminal charges were subsequently terminated. In its deliberations, and speaking on the criminal charges, the lower Court proceeded in the judgment thus:
“The plaintiffs stated here that it was at defendant’s instance that the case was terminated. There is one piece of evidence that remains unchallenged, inter alia – that is the plaintiffs and PW3 said that the defendant withdrew that court case because he (defendant) said it was going to affect his business and that he (defendant) just wanted to deal with them (plaintiffs). Even PW1, first plaintiff here said “…The allegation was not true but that the defendant made it because of his personal grudges and malice against them (plaintiffs), considering his previous actions both in and outside court and police station …” again this piece of evidence was left intact and unchallenged. Also to be noted is the evidence of PW3 to the effect that at the police station, the DPO wanted to take the case to court against the plaintiffs but the defendant refused on ground that the defendant wanted only to deal with them and show them that “man pass man”. No attempt was made to tamper with this evidence also. That at the police station, both the Area Commander and the DPO advised that the parties should go home and settle as it was a family matter.

There was no denial of this assertion. In fact several facts were placed before this court by the plaintiffs in proof of their case without any attempt made to puncture them. The defendant lined up a total of nine witnesses in his defence and for proof of his counterclaim. The one single fact that ran through the entire evidences of these defendant’s witnesses was that the plaintiffs were taken to the police station by their late father, Mazi Raphael Ogbonna, and not the defendant. Their evidences did not go near diluting the plaintiff’s facts placed before us, especially on the court action at the Chief Magistrate Court.

For all these, what can be deducted? I conclude that the defendant caused the arraignment and prosecution of the plaintiffs at the Chief Magistrate Court and without just cause” (see pages 167 to 169 of the records)

The lower Court continued its deliberations thus:
“On the second question, did the police arrest and detain the plaintiffs in both 2003 and 2004? I agree that the plaintiffs ought to have brought the police to confirm it but they did not do so. The defendant brought two police officers both from the Area office and Divisional Police office to say that the plaintiffs were not brought to their offices at the instance of the defendant but rather the parties’ father. One would have simply held that this aspect was not proved by the plaintiffs. But the defendant who denied ever taking the plaintiffs to the police station said that as a result of his complaint to court the plaintiffs were taken to the police station for further investigation…. The defendant also could not dispute what PW3 said about him to the effect that in 2003 the defendant had the first plaintiff locked at Kafachan Police Station and when she went there the following day together with the second plaintiff to give food to the first plaintiff, they met the defendant at the police station premises and on sighting them there, the defendant entered the police office and told the police to also detain them because, according to the defendant, she was the person instigating her children to abuse him (defendant). That consequently the police detained her and the second plaintiff for two days in their cell. That on her husband’s arrival at the police station, he cried … It should be noted that the two police officers that testified for the defendant, none was in Kafachan at the time of the alleged arrest and investigation by the police and no official record was tendered to show that the plaintiffs were only at the police station at their father’s instigation. In the main, I hold that the plaintiffs were arrested and detained by the police at their stations between 2003 and 2004…” (see pages 169 to 170 of the records)

It was on the basis of these findings that the lower Court upheld the case of the Respondents for malicious prosecution. It is evident from the above deliberations that the evidence led by the Appellant and the Respondents were balanced on the scale by the lower Court and that its decision was borne by a proper exercise of weighing the evidence led by the parties. It is trite that appellate courts do not have the advantage the trial court has in the task of evaluating evidence of witnesses before it and in making the necessary inferences. Consequently, appellate courts interfere with the evaluation of evidence by a trial court only where it is shown that the decision reached on the evidence is perverse – Odutola V. Mabogunje (2013) 7 NWLR (pt. 1354) 522 and Lasisi V. State (2013) 9 NWLR (pt 1358) 74.
Where a judgment of a trial court is attacked on the ground of finding or non-finding of evidence or evaluation of evidence, the Court of Appeal will seek the following (i) the evidence before the trial court; (ii) whether the trial court accepted or rejected any evidence upon the correct perception; (iii) whether the trial court correctly approached the assessment of the value on it; (iv) whether it used the imaginary scale of justice to weigh the evidence on either side; or (v) whether it appreciated, upon the preponderance of evidence, which side the scale weighed having regard to the burden of proof – Egonu V. Egonu (1978) 11-12 SC 111, Daramola V. Attorney General, Ondo State (2000) 7 NWLR (Pt 665) 400, Momoh V. Umoru (2011) 15 NWLR (pt. 1270) 217. Counsel to the Appellant did not show in this appeal that the decision reached by the lower Court was perverse in any way and as such this Court cannot interfere with the evaluation of evidence carried out by that Court.

The Appellant also complained about the award of damages made by the lower Court. It was his grouse that the amount awarded as special damages was not strictly proved as required by law. It is trite that special damages must be pleaded with particulars and strictly proved – Abi V. Central Bank of Nigeria (2012) 3 NWLR (Pt 1286) 1 and Akubuiro V. Mobil Oil (Nig) Plc (2012) 14 NWLR (Pt 1319) 42.

On strict proof of special damages, the law is that the rule that special damages must be strictly proved does not mean that there is a minimum measure of evidence or that there is a laid down special category of evidence required to prove special damages. What is required is that the claimant should establish his claim by credible evidence that he is entitled to special damages – Arabambi V. Advance Beverages Industries Ltd (2005) 19 NWLR (Pt 959) 1, Vinz International Nigeria Ltd V. Morohundiya (2009) 11 NWLR (pt 1153) 562, Adim V. Nigerian Bottling Co. Ltd, (2010) 9 NWLR (pt 1200) 543. The records of appeal show that the Respondents led credible oral evidence backed up with documents, to sustain the claim for the sum of N465, 550.00 as special damages being the sum expended by them on legal costs to meet their prosecutions in the different courts by the Appellant. They tendered receipts issued to them by the different legal practitioners they engaged and these were not contested by the Appellant. The award of this sum cannot thus be faulted. I agree with the observations made in the lead judgment in respect of the sum of N379, 950.00 also awarded as special damages and that the award should be set aside.

The Appellant also berated the award of the sum of N500, 000.00 as general damages made by the lower Court. Counsel to the Appellant stated that the lower Court took into consideration the expenses that formed the basis of the claim for special damages in making the award of general damages and that this was wrong and it amounted to double compensation. On the award of general damages, the lower Court stated thus:
“Next general damages. These are damages that stem from or are the natural consequences and expenses incurred as a result of the harm or loss meted on the plaintiff. I have held that the defendant led to the plaintiff’s problems which necessitated their expenses over the period. They are expenses incidental to the events leading to special damages. In assessing them, I am enjoined to consider the plaintiff’s mental, emotional and psychological trauma. By the entire circumstances of this case, these items were never in short supply at all on the plaintiffs due to defendant’s conduct. It is in evidence that these plaintiffs were buoyant before and held reasonable respects in the society for that. The court is told in evidence that one, who had two shops and two cars before, is now selling recharge cards by the roadside to survive. How does he feel and how does the society look at him now? The other plaintiff is said to be down and almost out of life. Their mother is in serious agony because of that bleak future for her children. These are issues weighing in this court’s mind in assessing the general damages… I assess this head of claim at N500, 000.00 …” (see page 175 of the records)

It is clear from the above that the assertion of the Counsel to the Appellant that the lower Court took into consideration the expenses that formed the basis of the claim for special damages in making the award of general damages was very untrue. The lower Court made the award to assuage the mental, emotional and psychological trauma suffered by the Respondents by reason of the actions of the Appellant.

There is nothing precluding the award of general damages, in addition to special damages, so long as it is claimed for and there is evidence led to support its award – Ozigbu Engineering Co Ltd V. Iwuamadi (2009) 16 NWLR (pt 1166) 44. The Respondents, in the instant case, claimed for general damages and they led evidence of the trauma that the conduct of the Appellant subjected them to. This Court cannot thus fault the award of general damages made by the lower court.

It is for these reasons and the fuller elucidation in the lead judgment, that I also dismiss this appeal and affirm the judgment of the High Court of Kaduna State in Suit No KDH/KAF/54/2005 delivered by Honorable Justice L. D. Aba on the 30th of June, 2008, save for the sum of N379, 950.00 awarded as special damages and the award of which sum I hereby set aside. I abide by the consequential orders on cost in the lead judgment.

Appearances

Chief Chris A. AkhasemomheFor Appellant

AND

Brain G. I. Nwogbo Esq.For Respondent