ALHAJI KAREEM ISHOLA v. ALHAJI AZEEZ ISHOLA & ANOR (2014)

ALHAJI KAREEM ISHOLA v. ALHAJI AZEEZ ISHOLA & ANOR

(2014)LCN/7174(CA)

In The Court of Appeal of Nigeria

On Monday, the 19th day of May, 2014

CA/I/45/2009

JUSTICES

SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria

MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria

CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria

Between

ALHAJI KAREEM ISHOLA Appellant(s)

AND

ALHAJI AZEEZ ISHOLA & ANOR Respondent(s)

RATIO

FACTORS A PLAINTIFF MUST PROVE IN AN ACTION FOR MALICIOUS PROSECUTION

In an action for malicious prosecution, the plaintiff must plead and prove the followings:
(a) “That he was prosecuted by the defendant, that is, the defendant set in motion against the plaintiff, the law leading to a criminal charges;
(b) That as a result of the prosecution aforementioned, the plaintiff was discharged and acquitted.
(c) That the prosecution by the defendant was completely without reasonable and probable cause; and
(d) That the prosecution was as a result of malice by the defendant against the plaintiff.”
Hence, to prove ingredient (a), the allegation of action prosecution made by the appellant, then we have to scrutinize the circumstances in which the appellant was arrested and prosecuted. That is, to find out the facts and circumstances at the time which led to the eventual prosecution of the appellant for possession without lawful and reasonable excuse, a small gourd (Ado) suspected to contain black harmful substance punishable under S.213(b) of the Criminal Code. PER WEST, J.C.A.

THE DUTY OF THE TRIAL COURT WHERE THERE ARE TWO VERSIONS OF AN ESSENTIAL FACT

My stream of thoughts is in line with the principle that where there are two versions of an essential fact, the duty of the trial court is to believe one side and disbelieve the other and for credibility, the evidence of a witness must be in accord with the possibilities and probabilities of the case considered. Daniel Dibiamaka & Ors. Vs. Prince Osakwe & Ors. (1989) 3 NWLR (Pt. 107) @ 113 &114. PER WEST, J.C.A.

WHETHER OR NT HE WHO ASSERTS MUST PROVE

Based on the general principle of “Ei qui affirmati non eiqui negat incumbit probation” – He who asserts must prove. And also by S.137 of the Evidence Act, in civil cases, the burden of proof is on the party who asserts a fact to prove same, for he who asserts must prove and the standard of proof is on preponderance of evidence and balance of probabilities. See: Longe vs. F.B.N. Plc (2006) 3 NWLR (Pt.968) 228; Daodu vs. N.N.P.C. (1998) 2 NWLR (Pt.538) 355; Mani vs. Shanoyo (2006) 4 NWLR (Pt.969) 132. Apart from the ipse dixit of the appellant on this issue one (1), can it be said that he has discharged this legal onus placed on him, moreso when the allegation hinges on a criminality in a civil proceeding, the answer is in the negative because the standard of proof is a proof beyond reasonable doubt which the appellant has failed woefully to discharge. See: Ngige vs. Obi (2006) 14 NWLR (Pt.999) 171. PER WEST, J.C.A.

SOTONYE DENTON WEST, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision delivered on 10/06/2008 by the High Court of Osogbo, Osun State (hereinafter simply referred to as “the lower court”) presided over by Hon. Justice F.O. Ogunsola (hereinafter simply referred to as “the learned trial Judge”) wherein his lordship dismissed the plaintiff/appellant suit against the defendants/respondents for malicious prosecution.

The plaintiff/appellant hereinafter referred to as the appellant brought at the lower court a claim against the defendant jointly and severally; N6,000,000.00 (Six Million Naira) general damages for malicious prosecution of the appellant by the respondents through a trumped-up charge vide Charge No. MFP/IC/2002 – Commissioner Of Police vs. Alhaji Kareem Ishola before Ifon-Osun Magistrate Court, Osun State between 24/01/2002 and 6/8/2002 which trial resulted in the discharge and acquittal of the plaintiff.

Both parties gave evidence in furtherance of their case and called witnesses.

The appellant, in his evidence-in-chief as P.W.1 gave evidence of how he attempted to deliver the malaria drugs he brought to one Madam Adeniwe at the request of P.W.2, known as Mr. Bakare Adeyemi, aka Atura. He testified that in the process of locating the old woman’s residence, he went to the house of the respondent who was at that time in the mosque. He approached the 2nd respondent for assistance in locating the house of the respondent as he could not locate either the house of the 1st or 2nd respondent. Eventually the respondent arrived and both went inside the home of 1st respondent. According to his testimony they placed a gourd (ado) near the chair on which he sat and asked him to pick it up which he refused doing. He was subsequently arrested and locked up by the police at the police station.

He informed the court that there had been series of litigation between PW1 – Bakare Adeyemi aka Atura and the 1st and 2nd Respondent. He was charged to court as a result of this incidence but was later discharged and acquitted.

The appellant further testified that he instituted this present action because he sustained financial loss. He had pledged his farm and also that his children could not go to school because of expenses of litigation, which according to him accrued to the tune of N50,000.00

The appellant as PW1 was cross-examined and under cross-examination, he told the court that he did not know Adeniwe’s house and that was why he requested for the 2nd respondent as DW2 to take him there. In his words he said:

“I needed to ask for the particular house of Madam Adeniwe because of the fact that it was night time and I am not familiar with the Alapupu’s compound. One can forget the description along the line.
The house of Adeniwe and 2nd defendant are besides each other”

The appellant as PW1 testified that he was aware of the land dispute between Atura (PW2) and the Alapupu family of the respondents. He acknowledged being aware of a threat to life of a member of Alapupu family with a gun by the said Atura (PW2). He however denied knowledge of restraining order on Atura (PW2) from visiting the Alapupu’s compound. Likewise he said he was unaware that Atura (PW2) and the Alapupu family were enemies until that day 14/8/2001. He also said he was the person fully responsible for prosecuting this instant case and not Atura (PW2).

The PW2, also known as Bakara Adeyemi, aka Atura, a mechanic by profession on 14/8/2011, testified that sequel to his promise to send malaria drugs to Madam Adeniwe who was ill with malaria, it was he who sent the appellant to deliver the drugs to her at around 8.20 p.m. and he did not return until 10p.m

According to his testimony, on discovering the failure of delivery of his errand, he went and enquired at the police station and subsequently the appellant was charged to court but was later discharged and acquitted.

Furthermore, he told the court that there were series of pending cases in court between himself (PW2) and the respondents of which one was a pending chieftaincy suit with case no. CA/I/214/99 at the Court of Appeal. Also he informed the court that he had appealed the decision where he was alleged to have threatened the life of a member of the Alapupu’s family.

On his being cross-examined, PW2 deemed that he was ever convicted in any of the pending cases in court and through him the judgment in Suit No. FMP/12C/2000 was admitted and marked Exhibit A. He also denied any restraining order from entering the Alapupu’s compound in case No. MFP/1C/2002 where the appellant was discharged and acquitted, this was admitted and marked Exhibit ‘C’. This however is the case for the appellant.

The 2nd respondent as DW1, Lasisi Akanmu, a farmer from the Alapupu compound, testified unequivocably that there was no love lost between his family and Bakare Adeyemi as PW2. He testified that there were series of cases in court between his family and PW2. He denied that he conspired to plant a fetish gourd (ado) on the appellant. He testified that on that fateful day at 8.30 p.m. the appellant entered Alapupu compound through the backyard in darkness, there was no light.

He told the court that he was alerted of the appellant’s presence by the children in the compound and he confronted him on his mission but the appellant continued to wander about within the compound, he later took him to the head of the family who was sent for at the mosque in person of the 1st respondent where the appellant’s story of how he was sent to deliver medication to the sick Adeniwe was greeted with suspicion; PW2 having been revealed to have sent the appellant. The respondent consequently alerted the police who came to the compound and on asking the appellant who was seated to stand up, a fetish gourd (ado) fell from his pocket and he was asked to pick it up by the police officer and he did. According to DW1, he and his family members suspected appellant’s wandering about their compound and this led them to lodge a complaint at the police station, he however denied prosecuting the appellant, saying it was the police that took him to court on the charge of possession without lawful and reasonable excuse, a small gourd (Ado) suspected to contain black harmful substance punishable under S.213(b) of the Criminal Code.

DW1 now respondent was cross-examined, he testified to the court that Adeniwe was the wife of the former head of the family whose name was given as Salami Omolaoye. He confirmed the close relationship between Salami Omolaoye and Bakare Adeyemi, aka Atura, PW2 but claims he doesn’t know the details of their closeness. Also he told the court that the late Salami Omolaoye never recognized Salami Omolaoye as an accredited member of the Alapupu family although he had his residential building in the Alapupu’s family land, nobody knew how he came about that.

He vehemently denied planting the said fetish gourd (ado) on the appellant as DW1 and that though he also gave evidence as a prosecution witness 1 when appellant was tried. He denied urging the court to punish the appellant because he was a trouble maker.

The 2nd defence witness was Corporal Agboola Olaide. He testified he was at the Divisional Crime Branch, Iloba when one Lasisi Akanmu (2nd respondent) came to report a case of suspicion movement against the appellant on 14/8/01 at about 8:20 p.m. He testified that he incidented the case and went to the scene of the crime to invite the suspect to the station at Alapupu’s compound, Iloba and that after introducing himself and stating his intention to the appellant, a gourd (ado) fell off his pocket while standing up, to which he asked the appellant to pick it up. He thereafter recorded the plaintiff’s statement under caution at the station. He also testified to recovering some tablets from him and went further to say that when he brought the witness and the complainant before the divisional police officer (D.P.O.), the inability of the two parties to reach an amicable resolution made the D.P.O. to direct the DW2 – Corporal Agboola Olaide as the investigating police officer (I.P.O.) to charge the matter to court, which he did.

Under cross-examination, the DW2 told the court that he could not remember the outcome of the case but he however concluded after reading Exhibit ‘B’ that the appellant was discharged and acquitted and that there was no appeal on the case.

The trial court thereafter ordered that written addresses by counsel to both parties be filed and served which was duly complied with and subsequently adopted. In the written address, appellant’s counsel, Mr. Alabi referred this honourable court to Law of Torts by Kodilinye (1982) pp 26, 30 – 37.

The respondent’s counsel, Mr. Ajibola in his written address submitted that the report lodged by DW1 to the police was against the appellant’s suspicious movements at the compound at an odd time and not about his possession of ado (fetish gourd). He contended that the incident of the discovery of the ado (fetish gourd) on the appellant only occurred at the arrival of the police in person of DW2, Corporal Agboola Olaide to the scene. The learned counsel therefore queried that if the respondent’s report lodged to the police was of ‘suspicious movement’ and the police went ahead to charge the appellant for unlawful possession of ado, can the respondent be blamed? To which he responded in the negative. The respondent counsel submitted that where the charge or prosecution of the plaintiff is at the discretion and instance of the police as in this instant case, respondent could not be held liable for the charge. He relied on the case of M & K Ltd. vs. Lamidi Apena (1969) 1 NMLR P.199 @ P.203 ratios 2 & 3. Undermining the case of the plaintiff (now appellant) as lacking in merit, counsel for respondent urged the court to dismiss the plaintiff’s case with substantial costs.

Counsel for the appellant in his written address referred to the pleadings of the parties and submitted that the appellant has proved all the four ingredients of malicious prosecution against the respondents. The counsel referred to Exhibit A, B and C (the judgment) where appellant’s conviction (Exhibit A) was quashed and therefore submitted that the respondent set the law in motion against the plaintiff leading to a criminal charge. He relied on the cases of: Balogun vs. Amubikahn (1989) 3 NWLR (Pt.107) 18; Musa vs. Yusufu (2006) 6 NWLR (Part 977) 454 @ 470.

The counsel for appellant submitted that the appellant was discharged and acquitted and that the prosecution was without reasonable cause but was as a result of malice by the defendant against the plaintiff. He therefore urged the court to hold that the appellant had proved all the four (4) ingredients of malicious prosecution.

The main issue for determination, according to the counsel is whether in regard to the circumstances in this case, the complaint lodged by the defendant to the police of suspicious movement simpliciter is enough to constitute active prosecution of the appellant in Charge No. MFP/1C/2002 for an offence of possession without lawful and reasonable excuse, a small gourd (ado) suspected to contain black harmful substance punishable under Section 213(b) of the criminal code.

He submitted further that the action of the appellant at the lower court is damages for malicious prosecution in Exhibit A (the judgment in MFP/1C/2002). He relied on Chief L. Oyelakin Balogun vs. Alhaji Busari Amubikanhun (supra) where the Supreme Court held as follows:
“In an action for malicious prosecution, the plaintiff must plead and prove the following:
(a) That he was prosecuted by the defendant, that is, the defendant set in motion against the plaintiff, the law leading to 2 criminal charges.
(b) That as a result of the prosecution aforementioned, the plaintiff was discharged and acquitted.
(c) That the prosecution by the defendant was completely without reasonable and probable cause; and
(d) That the prosecution was as a result of malice by the defendant against the plaintiff.

Referring to this intentional Torts to the person, he remarked that Streets on Torts; 6th Edition at paragraphs 27 – 28 classified malicious prosecution as a tort that is concerned with the abuse of the judicial process and which unlike false imprisonment calls for proof of malice and absence of reasonable cause. He canvassed the opinion that apart from prosecution of the appellant which ended with discharge and acquittal, the plaintiff must prove malice and absence of reasonable cause.

In a considered judgment delivered on 10/06/2008, the learned trial Judge – Justice F.O. Ogunsola entered judgment in favour of the respondent and dismissed the appellant’s claim. Being dissatisfied with the judgment, the appellant’s counsel Awoniyi Alabi on 13/08/2008 filed a notice of appeal containing 3 grounds of appeal. The parties in compliance to the rules of this court duly filed and exchanged their respective briefs of argument. The appellant’s brief of argument dated and filed on same date 26th May, 2009. The appellant also filed a reply brief dated and filed on 2nd day of December, 2009. However the appellant’s brief was deemed properly filed and served on 22nd October, 2009 and was settled by Awoniyi Alabi, Esq. on the other part, the respondent’s brief of argument was dated and filed on 20-11-2013 and was settled by Ayemoyin Kunle, Esq.

Flowing from the appellant’s brief of argument, respondents’ brief of argument and subsequently appellant’s reply brief, it is safe to say the parties are ad idem on the two issues formulated for determination on this appeal. We shall take them seriatim.

ARGUMENTS ON THE ISSUE FOR DETERMINATION

ISSUE ONE
Whether the finding and conclusion of the learned trial Chief Judge, on the report lodged by the respondents against the appellant was in respect of suspicious movement, was justified by the evidence. The appellant’s counsel Awoniyi Alabi, Esq. in response to this issue in his Reply brief submitted that the lower court was misled into admitting the evidence of a zealous or swift witness in person of DW2 who gave evidence in favour of the respondent.

He advanced the following responses by DW2 under cross-examination as his reasons for impeachment of the reasoning that yielded the judgment now appealed against, these are as follows:

“I gave evidence in the case I charged the accused to court of Ifon-Osun Chief Magistrate Court.
I see Exhibit “B”
I was aware of the outcome of the case. I cannot remember the outcome of the case. I have read the concluding part of Exhibit “B”
I agreed that the accused was discharged and acquitted.
The police did appeal against Exhibit “B”, the decision at least not to my knowledge page 2.

He observed that one would have expected a witness of truth, who carried out the investigation in the case and gave evidence at trial to be abreast with the facts and the outcome offhand (sic) but rather DW2 became incoherent and inconsistent under cross-examination as shown in the excepts above.
He quoted the Black’s Law Dictionary, Seventh (7th) Edition by Bryan A. Garner, page 1597 as defining a zealous or swift witness as someone who is unduly zealous or partial to one side of a lawsuit and showed his bias through extreme readiness to answer questions or volunteer information advantageous to that side.

He further contended that DW2 as a zealous or swift witness was therefore a lying and unreliable witness, hence his evidence which is to the effect that the respondent reported “suspicious movement” could not be tenable and therefore cannot be said to be unchallenged. He therefore submitted that the following cases relied upon by the respondent’s counsel cannot assist their case, namely:
(1) Gaji vs. Paye (2003) 5 SCNJ 20 @ 35
(2) Provost vs. Edun (2004) SCNJ 156 @ 159
(3) Ezeanya vs. Okeke (1995) 4 SCNJ 60 @ P.87.

He explained that Section 139 of the Evidence Act is favourable to the appellant as against the respondents on the issue of the particular fact of the report that was lodged by the respondents, which they (the respondents) wanted the court to believe was a complaint of “suspicious movement” which he said can only be proved or established by the production of Crime Diary or Certified True Copy of it.

Learned counsel said that the respondents having not cross-examined the appellant’s witness on the particular use of a gourd or ‘Ado’ to establish same (it’s existence, I think) as they remained unchallenged. He quoted copious passages from the record to buttress that the existence of a gourd or ‘Ado’ were never in doubt.

– Paragraphs 9, 10 and 11 of the statement of claim (page 4 of record) vis-a-vis paragraphs 5 and 7 of the statement of defence.
– DW1 (2nd defendant) on page 21, lines 7 – 10

“The police asked him to stand up and when he stood up the gourd (Ado) fell down from his body (pocket). The police asked him to pick the gourd (Ado) from the ground where it fell.

He also submitted that the respondent misled the lower court by misquoting the facts on record in paragraph 4.46(2) of his respondent brief that contrary to the misleading excerpt quoted by him therein, what is contained in paragraph 9, line 2 – 3 of the statement of claim on page 4 of the record is:
“….. the defendants accosted him, planted a gourd (‘Ado’) in his pocket……”
And not as wrongly stated by the respondents’ counsel as……’placed near his seat’.”

Appellant’s counsel however surmised that in any case there is not much in the discrepancy to amount to a meaningful material contradiction in placing a gourd (Ado) near his seat and planting same in his pocket, that what was most material is that the respondents and their witnesses attributed the possession of a gourd to the appellant. He explained that contrary to the respondents assertion of the appellant’s non-protest on the planting of a gourd on his person, that he protested at the respondents’ compound but he was ordered or commanded by the police officer to pick up the gourd before he was taken to the police station and detained, concluding that his various protests on this particular matter was ably reflected in his statement to the police which was tendered at the trial of Exhibits “A” and “B” and that made it his third occasion of protest of the gourd ‘Ado’ being planted on his body (sic).

He urged the court to resolve this issue in favour of the appellant.

ARGUMENTS OF THE RESPONDENTS ON ISSUE ONE
In the learned counsel’s respondents’ brief, he explained that the evidence of DW1 who personally lodged the complaint at the police station on the issue (page 20 lines 32 – 36 and page 21 lines 1 – 12 of the record) which is reproduced below was led by the respondents to show that the report lodged was in respect of suspicious movement and that it was the police that used its discretion to prosecute the appellant for unlawful possession of juju gourd (Ado), thus:

“On that day at about 8.30 p.m., plaintiff entered Alapupu compound through the backyard. I was alerted by some children in the compound that there was present a man at that time when there was no light. I asked him what was his mission he said answered (sic) that he came from one Atura. He continued to wander (sic) around and from there I took him to the head of the family. The head of the family was away to the mosque and I sent for him to come. When he came from the mosque, I narrated how the plaintiff came to the compound to see one Adeniwe from Atura. The head of the family became suspicious because Atura was our enemy and I reported the matter to the police who came to our compound to arrest the plaintiff. The police asked him to stand up and when he stood up, the gourd (Ado) fell down from his body (pocket). The police asked him to pick the gourd (Ado) from the ground where it fell. Plaintiff was there and then taken to the police station. We suspected the plaintiff when he was wandering about our compound because he came from our enemy. We do not relate with them.”

The learned counsel further explained that the evidence of DW2 (the investigating police officer) on the issue; at page 22 line 29 – 42 of the record led credence to the fact that the complaint lodged was of suspicious movement. Excerpts:

“On 14/8/2001 at 8.30 a.m. (sic) I was at my office at Divisional Crime Branch at Ilobu Divisional Headquarters. Lasisi Akanmu came to the station to report a case of suspicious movement against one Ishola Kareem. I was the person that investigated the case. After the case was reported to me I went to the scene of crime to invite the suspect to the station at Alapupu’s compound, Ilobu. On getting there I met one Alhaji Kareem seated after introducing myself to him as a police officer. I told him that his attention is needed at the police station. As he was standing up to follow me, one small gourd fell down and I asked him to pick it which he did. I then took him down to the police station where I took his statement under caution. I later recovered some tablets from the man together with a small gourd.”

He maintained that the evidence of the Investigation Police Officer (DW2) and also being an Independent Witness in the case was conclusive on the issue of the nature of the report lodged by the respondent against the appellant at the police station. Above all, since the evidence of these respondents’ witnesses, DW1 and DW2 on this issue was not challenged by cross-examination by the appellant’s counsel, the legal consequence of an unchallenged evidence which means it was conceded to should therefore ensure, Gaji vs. Paye (2003) 5 SCNJ P.20 @ P.35; Provost vs. Edun (2004) 2 SCNJ P.156 @ P. 169; Ezeanya vs. Okeke (1995) 4 SCNJ P.60 @ P.87.

Relying also on the principle of preponderance of evidence as laid down in Mogaji vs. Odofin (1978) 3 S.C P.91 @ P.93, he stretched further that the corroborated and unchallenged evidence of the DW1 and DW2 on the issue if placed side by side with the no-evidence-situation of the appellant on an “imaginary scale” must tilt the scale in favour of the respondents, thereby, justifying the disposition of the trial Judge that it was suspicious movement that was laid as complaint as against the allegation by the appellant that it was possession of a medicinal gourd ‘ado’.

He submitted that the submission of the learned counsel for the appellant was false, misleading and apparently oblivious of the evidence of DW1 and DW2 (the I.P.O.) as reproduced earlier and concluded that the appellant failed to prove otherwise or debunk the evidence of D.W.1 and D.W.2 that the report lodged was in respect of suspicious movement.

On the issue that only the production of the Police Crime Diary or Police Extract would have proved or established the argument for the respondent, the learned counsel for the respondents submitted that the standard of proof required of the respondents to establish the nature of the complaint they lodged against the appellant is not “proof beyond reasonable doubt” as in criminal case, but proof by “preponderance of evidence” in civil cases; and explained further that the corroborated and unchallenged evidence of D.W.1 and D.W.2 on the issue suffices without having to tender police crime diary or police extract. Moreso, with the unchallenged evidence of D.W.1 and D.W.2 (the I.P.O.) on the nature of the complaint or report lodged against the appellant at the police station, he reasoned that the burden of proving contrary shifted to the appellant in accordance with the provision of S.137(2) and S.139 of the Evidence Act rather than S.136 and S.137(1) of the Evidence Act wrongly relied on by the appellants’ counsel in sub-paragraph 5.04 (4)(iii) of his brief.

The provision of S.137 and S.130 of the Evidence Act.
S.137(1) “In civil cases the burden of first proving the existence or non-existence of fact lies in the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If such party adduces evidence which ought reasonable to satisfy a jury that the fact sought to be proved is established; the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively; until all the issues in the pleadings have been dealt with.

S.139 The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person; but the burden may in course of a case be shifted from one side to the other; in considering the amount of evidence necessary to shift the burden of proof regard shall be had by the court to the opportunity of knowledge with respect to the fact proved which may be possessed by the parties respectively.”

Flowing from the excerpts above, the learned counsel queried why the appellant failed to lead any oral or documentary evidence to prove that the report lodged against him was not in respect of suspicious movements, noting further that it was the duty of the appellant at that stage to produce the police crime diary or any document of his choice that could assist his case which could have been done if it meant for him to subpoena the police to produce the Police Crime Diary, to prove his case but rather the appellant expected the respondents to produce same for their own use.

The respondents’ counsel urged this court to reject the submission of the appellants on this issue.

RESOLUTION OF ISSUE ONE
As noted earlier, the appellant criticized strongly the judgment of the lower court and two main issues were distilled by the appellant and respondent.

One of the issues posed is to the question:
Whether the finding and conclusion of the learned trial Chief Judge that the report lodged by the respondents against the appellants was in respect of suspicious movement was justified by the evidence?

Before embarking into the merits or demerits of the arguments of both counsel on this issue which has been portrayed above, it is pertinent to note that a resolution of the issue would be a resolution of one of the vital conjunctive ingredients in an action for malicious prosecution which falls under issue two (2) and would generally determine the crux of the appeal on the whole, dependent on which of the parties the resolution of this issue favours.

On page 32 of the record, the appellant (as plaintiff) in his evidence-in-chief as PW1 gave evidence of how he attempted to deliver the malaria drugs he brought to one Madam Adeniwe at the request of 2nd plaintiff witness (PW2) – Mr. Bakare Adeyemi, otherwise known as Atura. In the process of locating the old woman’s residence, he testified that he went to the house of the 1st defendant who was at that time in the mosque. He approached the 2nd defendant for assistance in order to locate the 1st defendant as he did not know the house of either the 1st and 2nd defendants. Eventually, 1st defendant arrived and both of them went inside the house of the 1st defendant. He testified that they placed a gourd (ado) near the chair on which he sat and was asked to pick it which he refused to do. He was subsequently arrested and locked up at the police station.

On page 34 of the record, the second respondent who was the 1st defence witness and 2nd defendant at the lower court, Lasisi Akanmu denied that he conspired to plant medicinal gourd (ado) on the appellant, rather he testified that on that fateful day at 8.30p.m, the appellant entered the Alapupu compound through the backyard when there was power outage.

Witness told the court that he was alerted by the children in the compound of the presence of the appellant in the compound and he asked for his mission. Witness told the court that when 1st P.W. continued to wander (sic) about in the compound, he took him to the head of the family and as he was away to the mosque he sent for 2nd defendant and narrated to him how 1st P.W. came to see one Adeniwe from Atura (2nd P.W.). 1st respondent became suspicious, as D.W.2 was the enemy of the family. The 2nd respondent therefore alerted the police who came to the compound and when the police asked the appellant to stand up, a medicinal gourd (ado) fell from his pocket. And it was then the police asked the 1st appellant to pick the gourd and thereafter taken to the police station.

From the above two versions, it seems from the appellant version, he is inferring that finding a stranger lurking at one’s compound in the dark at night is not sufficient enough to warrant lodging a complaint at the police station, moreso when the stranger admits he is on an errand from an avowed sworn enemy to the family, Bakare Adeyemi a.k.a. Atura.

Fair enough, the intention of the appellant may be genuine as claimed, to deliver drugs to Adeniwe, but it doesn’t detract the fact that an unwanted guest was found lurking in the dark at night in the Alapupu’s compound of the respondent.

If these constituted facts are not enough to trigger the reasoning of a rational man to lodging a complaint, then I wonder what else will, especially when he further admits to be on errand from an avowed sworn enemy.

This line of reasoning which is in tandem with the version of the respondent’s testimony was further confirmed by the direct evidence of the investigating police officer (DW2) on page 22 of the record, who witnessed it all, hear him:

“……Lasisi Akanmu came to the station to report a case of suspicious movement against one Ishola Kareem….I went to the scene of the crime, he (sic) invite the suspect to the station at Atapupu’s compound, Ilobu.
On getting there, I met one Alhaji Kareem seated. …. I told him that his attention is needed at the police station. As he was standing up to follow me, one small gourd fell down and I asked him to pick it which he did.”

From the above excerpts, it not only seems tenable but also very logical and safe to say that the existence of the medicinal gourd only came to light after the complaint of suspicious movement had been lodged at the police station. Prior to that moment, the main issue was the motive or nature of the appellant’s presence at their compound at that time of the night; a very tenable reasoning which I am most inclined to align with.

The trial court’s reaction to the allegation of active prosecution on the part of the respondent against the appellant further dismantles this allegation and aligns with the portion of the respondent, hear the remarks of the lower court on page 37 of the record thus:

“On allegation of active prosecution as an ingredient of malicious prosecution, I am unable to find any activity that suggests active prosecution. Is it the case that 1st and 2nd defendants paid some witnesses to go and give evidence against the plaintiff as in Amubikanhun’s case? Or was it a false allegation that plaintiff was engaged in suspicious movement at night in the premises of the 1st defendant? 2nd DW’s evidence was emphatic on what was reported at the police station-suspicious movement. He investigated the case.
I do not believe that a person should be afraid to lodge a complaint of suspicion in his premises. The police have discretion on what charge to frame. I therefore hold that 1st and 2nd defendants did not prosecute the plaintiff.”

The appellation of DW2 as a swift and/or zealous witness according to the appellant in his Reply brief, where he pointed out some inconsistencies in his testimony is not material enough to put to shreds his entire testimony. On the whole, the evidence of DW2, being the Investigating Police Officer (IPO) of the case and a material witness, having witnessed the substantial part of the currency of events is of high probative value, notwithstanding the one or two innocuous discrepancies spotted here and there which perhaps only shows the fallible nature of the human mind.

In any case, I would have expected the appellant to explore other legal mechanisms opened to him to discredit the claims of DW2, for instance, a subpoena on the police authorities to produce the police crime diary he so much believed contained the real truth on the issue to substantiate his case rather than seeking refuge on his perceived weakness of the case of the respondent. For when evidence that should be substantiated is not substantiated, it remains in the realm of an assertion to be likened to an ipse dixit and in law this cannot be regarded to be credible and worthy of believe. See: Debs vs. Cenco Ltd. (1986) 3 NWLR 846 @ 853 – 854.

Apart from the ipse dixit of the appellant on this issue one (1), can it be said that he has discharged this legal onus placed on him, moreso when the allegation hinges on a criminality in a civil proceeding, the answer is in the negative because the standard of proof is a proof beyond reasonable doubt which the appellant has failed woefully to discharge. See: Ngige vs. Obi (2006) 14 NWLR (Pt.999) 171.

When the direct evidence of DW2, from his own personal knowledge of the fact as the Investigating Police Officer to whom the complaint was lodged and who visited the scene of the crime and witnessed the discovery of the medicinal gourd, is placed side by side on an imaginary scale alongside the ipse dixit of the appellant, it tilts the scale overwhelmingly in favour of the respondent. As a matter of fact, it’s of utmost consideration that no aspect of the foregoing piece of evidence as held by DW2 was disturbed under cross-examination. Though in as much that it is not every unchallenged evidence that has to be accepted verbatim without consideration and proper evaluation, when a finding of fact such as this is put in place and never disputed by the adversary by way of cross-examination, it would be regarded as the truth and this court will not disturb this position. See: Moghalu vs. Ude & Anor (2000) 4 W.R.N. 13 @ 23.

Now, we have to remind ourselves that issues relating to the ascription of weight to the testimonies of witnesses are the exclusive prerogatives of the trial court: prerogatives which no appeal court can interfere with, Ebba vs. Ogodo (1984) 1 SCNLR 373; Owie vs. Ighiwi (2005) 5 NWLR (Pt.917) 184 – 208. This is so for the trial court has the power to ascribe credibility to the evidence of witnesses who testified before it. Thus, where findings of facts are not perverse, an appellate court cannot interfere with them. Ajuwa vs. Odili (1985) 2 NWLR (Pt.9) 710; Nzekwu vs. Nzekwu (1989) 2 NWLR (Pt.104) 373.
As a corollary, the evidence of DW2 drips with probative value and preponderates on one side of the balance and therefore constitutes the findings of the court. Bodi vs. Agyo (2003) 6 NWLR (Pt. 846) 305, 323 – 324; Osazuwa vs. Isibor (supra) 323 – 324, 326.

In all therefore, I do not find any merit in the appellants’ complaint on this Issue 1, I therefore resolve it in favour of the respondents.

ISSUE TWO
Whether (on the balance of probability) the appellant has successfully established a case of malicious prosecution against the respondents?

On this issue, it was submitted that the appellant successfully established a case of malicious prosecution against the respondents. Counsel drew attention to the fact that in a case of malicious prosecution, four ingredients must be proved, namely:
(a) That the plaintiff was prosecuted by the defendant in that, the defendant set the law in motion against him;
(b) That the prosecution was determined in favour of the plaintiff; that is to say, that the plaintiff was tried by a court of competent jurisdiction discharged and acquitted;
(c) That the prosecution of the plaintiff was without reasonable and probable cause; and
(d) That the prosecution was as a result of malice by the defendants against the plaintiff.

He relied on Musa vs. Yusuf (2006) 6 NWLR (Pt.997) C.A. 454, pages 468, paras C – F; 478, paras B – E; Balogun vs. Amubikunhun (1989) 3 NWLR (Pt.107) S.C. @ P.26, (C); Cooperative and Commerce Bank of Nig. Ltd. Vs. Odogwu (1990) 3 NWLR (Pt. 140) 646; Alhadi vs. Allie, 13 WACA 323; 324 para 3; Bayo vs. Ahemba (1999) 10 NWLR (Pt.623) 381.

It was the counsel’s submission that the appellant was prosecuted by the respondents having set the law in motion against the appellant which led to the counsel charge. The summary of the appellant’s evidence is that on 4-8-2001, he was sent on a peaceful errand by PW2 to deliver some malicious drugs to one Madam Adeniwe who was a neighbor of the respondents. Even though the appellant informed the respondent about his mission, yet, because the appellant said he was sent by PW2 whom the respondents regarded as their sworn enemy accused the appellant of having brought a charm (juju) to charm them, consequently the respondents planted a gourd (Ado) in the pocket of the appellant, got him arrested and detained by the police. Based on the aforesaid allegation reported to the police by the respondents, the appellant was prosecuted but eventually discharged and acquitted. He referred to pages 14 – 16, 17- 19 of the record.

To further prove the first ingredient of malicious prosecution as stated above, counsel submitted that the 1st and 2nd respondents gave evidence as PW1 and PW2 respectively in the criminal trial against the appellant (Exhibit). The testimonies of the respondents as prosecution witness are contained on pages 1 – 4 of Exhibit “B”.

He maintained that the respondents instigated and misled the police to prosecute the appellant and the respondents also gave false evidence in a charge that was false to their knowledge, when they should be regarded as the prosecutors. He relied on Musa vs. Yusuf (supra) pages 470 (E – H), 471(A); Balogun vs. Amubikanhun (supra).

He argued further that had the respondents merely made a complaint and led nothing more, the police might well have refused to investigate the complaint and then, there would be no charge and so no question of malicious prosecution. But rather, he claimed the respondents brought the police to their compound to arrest the appellant, volunteered statements to the police and eventually gave evidence.

The counsel for the appellant in proving the second itemized ingredients of malicious prosecution as highlighted above, submitted that the prosecution was determined in favour of the appellant in that he was tried by a court of competent jurisdiction, discharged and acquitted as shown in Exhibit “B” (the judgment) of the trial Magistrate Court.

He referred to appellant’s evidence (PP 15, lines 21 – 22 of record) PW’s testimony (page 18 lines 27 – 28 of the record). DW2’s testimony (page 23 lines 10-11of the record).

He thereafter submitted that it was wrong and unfair for the trial Chief Judge to have held that the appellant had failed to prove all the ingredients of the tort of malicious prosecution.

In the counsel’s argument in proving the third ingredient as earlier highlighted, he submitted that the prosecution of the appellant was without reasonable and probable cause.

He adduced the following reasons:
(a) The only reason why the respondents reported the appellant to the police was that the (appellant) brought a charm from “Atura” (PW2) to charm the respondents.
(b) The cold facts on record revealed that the basis of the thrumped-up charge against the appellant, according to him is the fact that there is no love lost between the respondents’ family and PW2 “Atura” or Bakare Adeyeni who sent the appellant on an errand on the fateful day because of series of land and chieftaincy disputes between them.

He referred to pages 20 – 21 and reproduced pages 21 lines 17, 19 – 22 of record under cross-examination; as follows:
“I told the court that Bakare Adeyemi is our sworn enemy. I suspected him because he came at night and he is our enemy. It is because Kareem Ishola was sent by Atura that was why we arrested him. Even if a chicken comes from Atura we are going to arrest him.”

He also reproduced lines 40 – 41 of pages 21 of record by 2nd defendant thus:
“I gave evidence as PW1 at the Magistrate Court when Kareem Ishola was being tried.”
To prove the third ingredients; that the prosecution was without reasonable and probable cause, the appellant’s counsel submitted that the test for determining “reasonable and probable cause” for purposes of an action for malicious prosecution that reliance must firstly be placed on the facts known to the defendants (respondents) at the time of making the charge/complaint and then decide whether those facts constitute “reasonable and probable cause.”

He argued that in the instant case, the facts known to the respondents as at time of their complaint to the police against the appellant was to the effect that there were series of litigation between the respondents and PW2, then PW2 had sponsored the appellant to come and charm the respondents through the use of the medicinal gourd “Ado”, which to him was an unreasonable belief. He cited Musa vs. Yusuf (supra) page 471 (G – H).

The appellant’s counsel further argued that from the totality of the evidence in the instant case, that no reasonable man abreast with the knowledge of the facts which the respondents knew as at the time they reported the appellant was probably guilty of the crime imputed nor report the matter to the police.

He faulted why the police extract or letter of complaint was not tendered before the court to confirm the authenticity of such contention by the respondents or DW2 (police corporal). He cited Section 136 and 137(1) OF THE Evidence Act and argued further the respondents had failed to prove that the prosecution of the appellant was based on a complaint of suspicious movement in the absence of their letter or police extract/crime diary of the entry.

In his submission, the appellant’s counsel opined that the learned trial Chief Judge misdirected himself when he held that the respondent had discharged that burden.

On the fourth leg of his argument; that the prosecution was as a result of malice by the Respondents against the appellant, the appellant’s counsel submitted that the prosecution of the appellant was as a result of malice by the respondents against the appellant that in the instant case, the 2nd respondent admitted under cross-examination that he became suspicious and reported the appellant to the police because he claimed to have come from PW2 (Bakare Adeyemi), a sworn enemy of the respondents’ family and in his estimation this is clearly and unequivocally an evidence of malice.

In furtherance in his argument, the appellant’s counsel posited it as a clear case of transferred malice, that the respondents had transferred the malice they had against PW2 (Bakare Adeyemi, alias “Atura”) to the appellant who happened to be the agent of the said PW2 at the material time.

He argued further that the most important thing to determine on this ingredient is the intent of the respondents at the time of accusing and reporting the appellant to the police and that the doctrine of transferred intent is apposite in this case. He referred to the Black’s Law Dictionary, Seventh Edition by Bryan A. Garner, at page 1504, where transferred intent doctrine is defined as follows:
“The rule that if one person intends to harm a second person but instead unintentionally harms a third, the first person’s criminal or tortuous intent towards the second applies to the third as well. Thus, the offender may be prosecuted for on intent crime or sued by the third person for an intentional tort.”

He therefore described the conclusion of the learned trial Chief Judge thus.
“Plaintiff has not been sued by the 1st and 2nd defendants. It was “Atura” who was sued. Having regard to the facts before this Honourable Court, 1st and 2nd defendants cannot be said to have malice against the plaintiff. Therefore, there was no prosecution of the plaintiff by the 1st and 2nd defendant.”

And remarked that page 37, lines 27 – 32 of record, is clearly off the course and a misdirection which has occasioned a miscarriage of justice and should not be allowed to stand.

Quoting copiously from the case of Musa vs. Yusuf (supra) pages 473 – 471, paras H – A, he said malice can constructively be deduced and therefore established when the complaint lacked belief in the cogency of the complaint or careless or reckless (sic) concerning the truthfulness of his report to the police.

Also citing Balogun vs. Amubikanhun (supra) @ page 28 (A – C) of the Supreme Court’s judgment, he said it was held that the absence of a complaint or a desire to procure conviction by all means leading to concocting evidence, is evidence of malice. And submitted that going by the nature of their report to the police (suspicious movements and/or possession of “Ado” (juju) to charm them) and the discharge order of the Magistrate, the respondents knew or ought to know that they were making a false allegation, and their desire for doing so, was for persecution, but not prosecution for the ends of justice.

He also submitted that the principles enunciated in the case of M & K Ltd. Vs. Lamidi Apena (1969) 1 NMLR 199 @ 203, ratio 2 and 3, cited by the learned appellant’s counsel which the learned trial Judge seemed to have relied upon and applied to the effect that where the charge or prosecution is at the discretion and instance of the police, the defendants cannot be held liable, is with due respect, irrelevant and inapplicable to the instant case because:
(i) the facts in this case are different from Apena’s case; and
(ii) It is apparent in the evidence on record here that the charge and prosecution in Exhibit “B” were at the instigation and with active support of the respondents.

Based on all the foregoing, the counsel for the appellant urged this honourable court to hold that the appellant has successfully proved all ingredients of malicious prosecution against the respondents, he maintained.

ARGUMENTS OF THE RESPONDENTS ON ISSUE TWO

Learned counsel for the respondents’ reaction on whether the essential ingredients of malicious prosecution were proved argued that the essential ingredients that must be proved by a plaintiff in an action of malicious prosecution are:
(a) That he was prosecuted by the defendants, or that the law was set in motion against him by the defendants.
(b) That as a result of the prosecution aforementioned, the plaintiff was discharged and acquitted.
(c) That the prosecution by the defendants was completely without reasonable and probable cause.
(d) That the prosecution was as a result of malice by the defendant against the plaintiff.

He submitted that all the four (4) ingredients without exception must be proved by the plaintiff. He relied on the case of Balogun vs. Amubikanhun (supra) at paragraph C.

The respondents’ counsel delineated his argument on proving the four essential ingredients thus:

On the first ingredient, who prosecuted the appellant or set the law in motion on him? Learned counsel argued that in view of the established facts and evidence that the respondents lodged a report of suspicious movement against the appellant, then it should necessarily follow that they were not responsible for the prosecution of the appellant for possession without lawful and reasonable excuse a small gourd (Ado) suspected to contain black harmful substance. It was further canvassed that in accordance with Exhibit B, the appellant was charged and prosecuted for unlawful possession of Ado as follows:
“That you Alhaji Kareem Ishola ‘M’ on the 14th day of August, 2001 at about 8.30 p.m. at Alapupu’s compound, Iloba in the house of one Lastsi Akanmu ‘M’ in the Ifon-Osun Magisteriat district was found having in your possession without lawful and reasonable excuse a small gourd (Ado) suspected to contain black harmful substance and thereby committed an offence contrary to and punishable under Section 213(B) of the Criminal Cap. 30 Vol. II of Oyo State of Nigeria, 1978 as now applicable in Osun State.”

He explained that from the foregoing, the prosecution of the appellant for unlawful possession of the suspected harmful substance, small gourd (Ado) was therefore absolutely at the discretion of the police. Hence the appellant had failed to prove this essential ingredient and consequently his action was rightly dismissed, he added.

On the second ingredient: On whether the appellant was discharged and acquitted in respect of the complaint lodged by the respondents? On this second leg, learned counsel argued that in view of the established fact that the respondents reported a case of suspicious movement against the appellant, it cannot therefore be right to say that he was discharged and acquitted of the complaint, but rather he was discharged and acquitted for another offence brought against him by the police.

Learned counsel submitted that for the appellant to succeed on proving this ingredient, the appellant must establish that the prosecution of which he was discharged and acquitted was related to the complaint lodged by the respondents. He submitted that this evidential ingredient was also not proved.

On the third ingredient: On whether absence of reasonable and probable cause was proved? On this third leg, the counsel for the respondents submitted that in view of the established fact in this case that the report lodged by the respondents against the appellant was in respect of suspicious movement, the report of suspicious movement was true, reasonable and justifiable in the circumstance. The counsel on recap, said that the appellant was purportedly carrying a message to one Mrs. Adeniwe living in the respondents’ family compound on the fateful day from one Bakare Adeyemi a.k.a. Atura (PW2) who was admittedly a sworn enemy of the respondents’ family and he was not certain of the particular house and more so it was dark and at night.

The said Bakare Adeyemi was once convicted for threatening to kill 3 members of the respondents’ family, vide Exhibit B, although he was later discharged on appeal, vide Exhibit C. he (appellant) entered the respondents’ compound from the backyard at 8.30 p.m. and there was no light. He was found wandering in the premises by the children who challenged him and took him to the 2nd respondent. When questioned by the 2nd respondent, he disclosed that he was from Bakare Adeyemi a.k.a. Atura, the admitted sworn enemy of the respondents’ family, hence the (2nd respondent) became suspicious of the appellant and took him to the 1st respondent, the head of the family.

Learned counsel submitted that in this circumstances, there were reasonable grounds for the respondents to suspect the appellant’s movement at that time of the night and they (respondents) behaved reasonably by not resorting to jungle justice but rather reported him (appellant) to the police for suspicious movement which was a true report in the circumstances.

He submitted that the appellant had also failed to establish that the respondents had no reasonable and probable cause to lodge the report of suspicious movement against him which is on essential ingredient that must also be proved.

On the fourth (4th) ingredient: On whether malice was proved? Counsel for the respondents on this fourth leg, once again reiterated that in view of the established evidence that the report or complaint lodged was in respect of suspicious movement, it was true, reasonable and justified in the circumstances and consequently, the issue of malice did not arise.

The learned counsel argued further, that the question of malice could only arise if the report lodged was false as in Amubikanhun’s case (supra), but that in this instant case, the report was true because the appellant was found actually wandering in the respondent’s compound at the material time, a fact which he himself confirmed in his evidence on pages 14 – 16 of the record.

He explained further that the appellant cannot rely on the litigations between his friend, Bakare Adeyemi, alias Atura and members of the respondents’ family to establish malice because he was not a party to any of the cases and there was no evidence that he and the respondents had any previous quarrel. In fact, as it was revealed in evidence, the 2nd respondent asking the appellant where he came from on the night of the incident suggested that he never knew nor met him before and that there was also no evidence that the appellant knew nor had ever met the 2nd respondent prior to the incident.

The learned counsel submitted that in view of the foregoing circumstances, malice had not been established by the appellant against the respondents. Based on the foregoing submission, the learned counsel for the respondent urged this honourable court to resolve this Issue in their favour.

RESOLUTION OF ISSUE TWO (2)
It seems to me that the answer to appellant’s 1st leg of issue two has been provided in my treatment of Issue No. 1 to wit, whether the finding and conclusion of the learned trial Chief Judge that the report lodged by the respondents against the appellant was in respect of suspicious movement, was justified by the evidence.

As been explained earlier that for an action of malicious prosecution to succeed, all the essential four ingredients without exception must be proved by the plaintiff. In the instant case, I having adopted my treatment of Issue No. 1 as my answer to 1st leg of Issue 2, wit, to prove the essential ingredient that the plaintiff (appellant herein) was prosecuted by the defendant (respondent herein) in the sense that the defendants set the law in motion against him.

Having resolved Issue 1 in favour of the respondents, it also therefore translates that I totally disagree that the appellant was prosecuted by the respondents nor could be said to have set the law in motion against him, in that sense. Therefore, at this juncture, the appellant having failed to prove otherwise one of the vital and conjunctive ingredient in an action for malicious prosecution, it invariably means this action cannot succeed on appeal. However, I would for the sake of academic exercise touch on the arguments for the remaining 3 vital ingredients.

In resolving the second leg of Issue 2, on whether the prosecution was determined in favour of the plaintiff, I totally align myself with the arguments proffered by the learned counsel for the respondents in page 9 para. 432, that in view of the established facts, it is only rational to think that one could not make a complaint to the police about a future event since the discovery of the medicinal gourd “Ado” only came to light at the arrival of DW2 (the investigating police officer) when the matter had already been reported to the police station and when he arrived at the scene of the crime to arrest the appellant (see testimony of DW2 on page 22 of the record).

To my mind, I do not see anything unnatural in reporting or making a complaint of a stranger, lurking around your compound at night and on being questioned drops the name of an avowed enemy, and when the aroused suspicion of the respondent led him to make a complaint to the police, the police arrives only to discover a medicinal gourd falling out of his pocket. And when the police charged him to court on the possession of a harmful substance, can it then be said that it was the complainant that charged him? When indeed the police (I.P.O) as a law enforcement agent witnessed the entire currency of events, and had the power to on his own volition charge a suspect to court.

On this note, it therefore cannot be said that it was the respondents that charged the appellant to court. This leg is therefore resolved in favour of the respondent.

The third leg as to whether absence of reasonable and probable cause was proved is definitely in the affirmative. As stated earlier the fact that Bakare Adeyemi alias Atura and the respondents’ family are not in accord with one another is a notorious fact admitted by both parties so therefore when a total stranger in person of the appellant was found wandering in the dark at night and on being confronted drops the name of their sworn enemy, it is only cautionary and commendable that such an incident be reported to the police authorities rather than take laws into their hands. If this commendable act is not reasonable and of probable cause vis-a-vis a report/complaint of suspicious movement in the circumstance, then I stop to ponder what is! I resolve this in favour of the respondents.

The final leg, on whether malice was proved, the learned counsel for the appellant argued that this scenario is a case of transferred malice, this reasoning that the respondents had transferred the malice they had against PW2 (Bakare Adeyemi), alias “Atura”) to the appellant does not seat on all fours with me, the reason is that there is no denying the facts that the appellant was found lurking in the dark at night in the respondents’ compound which aroused suspicion and on been queried he told the respondent he was sent on errand by their avowed enemy – Bakare Adeyemi a.k.a. ‘Atura’, this could only have heightened the already registered suspicion in the minds of the respondents, can it therefore be said to be malicious to report suspicious movement to the police, a fact which was equally corroborated by the evidence of DW2 who witnessed the gamut of events.

This line of argument clearly fails, for the appellant has been unable to prove the vital ingredient of malice. I therefore resolve this fourth leg in favour of the respondent, the appellant’s version of events is a tailored version and concocted story and seems so improbable that it cannot reasonably be true. I would however like to commend the act of respondent in this appeal, for being good citizens in lodging their complaint with the appropriate authorities rather than resorting to jungle justice or taking laws into his hand. The lynching of the four innocent students of the Rivers State University of Technology, popularly known as the ‘ALUU FOUR’ is still fresh in my mind, so I credit the respondents for not taking such illegal and dehumanising path.

Also if I may add, this judgment would not fully serve its purpose, if myopically viewed from the angle of victor and the vanquished. By this I mean to admonish the two parties to sheath their warring swords of enmity and tow the line of peace, for what good will it serve their children when the adults mutually consent that they are avowed sworn enemies and seem to pride in it? I therefore appeal to the two parties in the interest of peace, good neighbourliness and for posterity sake to reach out in love to one another and by so doing they would be sowing the good seeds of unity, our dear country so greatly desires.

In effect, I find no merit in this appeal. The judgment of the Hon. Chief Judge of Osun State, Hon. Justice F. O. Ogunsola of High Court, Osogbo delivered on 10th June, 2008 is hereby affirmed.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in draft the judgment delivered by my learned brother Sotonye Denton-West JCA.

I agree with the conclusion and I also abide with the consequential order(s).

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: My learned and revered brother DENTON WEST, JCA has exhaustively dealt with the facts and law resulting from this appeal and I could not agree more with the reasoning and conclusion reached therein.

In an action for malicious prosecution, the plaintiff must plead and prove:
a. That he was prosecuted by the defendant;
b. That at the end of the prosecution the plaintiff was discharged and acquitted of the criminal charge;
c. That the prosecution of the plaintiff was completely without reasonable and probable cause; and
d. That the prosecution was borne out of malice.

It is decipherable from the foregoing that to be liable for malicious prosecution, the defendant would have done more than merely reporting an incident to the police. If for example at the conclusion of the investigation of the report lodged by the defendant, the police informs him that there was no cause to prosecute the plaintiff but the defendant insists that the plaintiff be charged to court; or even where the defendant does not himself believe in the truth of his allegation, the said defendant will not escape liability for malicious prosecution. See also Bhagatsingh & Ors. vs. Pandit Tewari (1908) 24 LTR 884.

In the instant appeal it was rightly determined that the presence of the appellant at night in the compound of the respondent on the date of the incident was enough to arouse and alert the said respondent. Moreover, the appellant when accosted admitted that he was on an errand from one Bakare Adeyemi (aka. Atura) an avowed enemy of the respondent. Any rational and right thinking individual in the shoes of the respondent will surely be rattled to the point of inviting the police. In the circumstances the respondent found himself, he was rightly moved to go and lodge complaint of suspicious movement against the appellant with the police. At the end of their investigation of the complaint, the police on whom rests the discretion, found reason in charging the appellant before the Ifon-Osun Magistrate Court, in charge nos. MFP/1C/2002: Commissioner of Police vs. Alhaji Kareem Ishola.

The respondent undoubtedly did all he is expected to do in the circumstances which is to report suspicious movement of the appellant in his compound to the police. Aside from this there is nothing on record to show that the respondent lodged his complaint unreasonably and out of malice. I do not in the circumstances find reason to come to the conclusion that the prosecution of the appellant at the Chief Magistrate Court was malicious. In the event, I too shall and hereby resolve issue 1 (one) in favour of the respondents and against the appellant.

On the whole, the appeal lacks merit and is accordingly dismissed.

Appearances

Awoniyi AlabiFor Appellant

AND

Kunle AyemoyinFor Respondent