EHIKHAMETALOR EROMOSELE v. KECK WERMER & ORS (2014)

EHIKHAMETALOR EROMOSELE v. KECK WERMER & ORS

(2014)LCN/7665(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 4th day of February, 2014

CA/B/324/2005

RATIO

APPEAL: ISSUES FOR DETERMINATION; WHETHER ISSUES FOR DETERMINATION MUST BE PREDICATED UPON GROUNDS OF APPEAL
Regrettably, however, neither the Appellant nor the Respondents had deemed it expedient to relate any of the grounds of appeal in question to the issues raised in the respective briefs thereof. Yet, it’s a trite principle, that issues raised (formulated) in a brief of argument must clearly be distilled from competent grounds of appeal. Thus, where issues raised in a brief of argument are not predicated upon grounds of appeal, they shall be liable to be struck out for being incompetent. See OCEANIC BANK INTERNATIONAL LTD v. CHITEX IND. LTD (2001) FWLR (Pt. 4) 678; DADA v. DOSUNMU (2006) 18 NWLR (Pt. 1010) 134; IDUCA v. ERISI (1988) 2 NWLR (Pt. 78) 563; ANIMASHAUN v. UCH (1996) 10 NWLR (Pt. 476) 65. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

PRACTICE AND PROCEDURE: BRIEF OF ARGUMENT; THE SIGNIFICANCE OF THE INTRODUCTION OF BRIEF OF ARGUMENT TO THE ADMINISTRATION OF JUSTICE

APPEAL: GROUND OF APPEAL; THE OBJECTIVE OF GROUNDS OF APPEAL AND WHETHER THE COURT WILL NOT STRIKE OUT A GROUND OF APPEAL WHEN WHAT THE APPELLANT IS APPEALING IS DISCERNIBLE
I have had a cause to point out, heretofore, that the issues as couched in the briefs of argument of the respective parties have not been related to, or distilled from, the grounds of appeal. Yet, it’s a trite and well established doctrine that –
The fundamental objective of grounds of appeal is to notify the other party of the nature of the case he would meet in the appellate court. Once what the Appellant is appealing is discernible, it may not be necessary or desirable to strike out the grounds of appeal, as doing so may amount to deniable of his right of appeal and fair cherishingly and duly enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999, The trend in the Nigerian courts has been to ensure that substantial justice as against technical justice is done to the parties at all times.
So was it held by this court in the case of ANNP v. REC AKWA IBOM STATE (Supra) @ 510 paragraphs C – F; 537 – 538 paragraphs H – B, per Saulawa, JCA. See also OGBORU v. IBORI (2006) 17 NWLR (Pt. 1009) 542; OGUNBI v. KOSOKO (1991) 1 NWLR (Pt. 210) 511; EKANEM v. AKPAN (1991) I NWLR (Pt. 211) 616; ELEGBU v. FATB (1992) NWLR (Pt. 220) 669; DANAGHE COMMUNICATIONS LTD v. AIKHOMU (1994) 2 NWLR (Pt. 327) 420. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

TORT: TORT OF MALICIOUS PROSECUTION; THE MEANING OF THE TERM MALICE AND THE TERM MALICIOUS PROSECUTION
Etymologically, the term malice, as a noun, invariably denotes the intent, without any justification or (lawful) excuse, to commit a wrongful act. It connotes a reckless (negligent) disregard of the law or a person’s legal rights. Invariably, malice is characterised by ill-with wickedness of the heart: BLACK’S LAW DICTIONARY, 9th Edition, 2009 @ 1042.
According to John Salmond –
Malice means in law wrongful intention. It includes any intent which the law deems wrongful, and which therefore serves as a ground of liability. Any act done with such on intent is, in the language of the law, malicious, and this legal usage has etymology in its favour, The Latin Malitia means badness, physical or moral – wickedness in disposition or in conduct – not specifically or exclusively ill-will or malevolence; hence the malice of English Law, including all forms of evil purpose, design, intent, or motive. (But) intent is of two kinds, being either immediate or ulterior, the ulterior intent being commonly distinguished as the motive. The term malice is applied in law to both these forms of intent and the result is somewhat puzzling ambiguity which requires careful notice. When we say that an act is done maliciously, we mean one of the two distinct things. We mean either that it is done intentionally, or that it is done with some wrongful motive. See JOHN SALMOND: JURISPRUDENCE (Glanville L. Williams 10th Edition, 1947) @ 384; BLACK’S LAW DICTIONARY (Supra) @ 1042.
Thus, flowing from the foregoing definitions, it is trite, that the term malice, in the very legal sense thereof, imports (i) the absence of all elements of justification, excuse or recognised mitigation, and (ii) the presence of either (a) an actual intent to cause the particular harm which is produced or harm of the same general nature, or (b) the wanton and willful doing of an act with the knowledge of a clear and strong likelihood that such harm may result. See Rolling M. Perkins & Ronald N. Boyce: CRIMINAL LAW 3rd Edition, 1982 @ 890, referred to at page 1042, BLACK’S LAW DICTIONARY (Supra).

Thus, the term malicious prosecution, imports the institution of an action, either criminal or civil, in a court of law or tribunal, for an improper purpose without a probable cause. Under the law of torts, to succeed in a claim for malicious prosecution, the complainant shoulders the burden to prove four elements, viz:
(i) The initiation and/or continuation of a lawsuit or action;
(ii) Lack of probable cause for the initiation of the lawsuit or action;
(iii) Malice; and
(iv) Favourable termination of the original lawsuit or action.

It is trite, that once a wrongful prosecution has terminated (ended) in favour of the defendant, he or she is cloaked with the discretion to sue for tort of damages. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

TORT: TORT OF MALICIOUS PROSECUTION; THE FACTORS A PLAINTIFF MUST PLEAD AND ESTABLISH IN AN ACTION FOR MALICIOUS PROSECUTION
As alluded to above, in an action for malicious prosecution (as in the instant case), the Plaintiff has the onerous duty not only to plead, but also establish, by credible evidence, four fundamental factors, viz –
1. That the defendant prosecuted him, that’s to say, he set the law in motion against him. It’s been held in a plethora of decisions, that where the defendant merely made a report to the police but did not (actually) instigate the prosecution of the Plaintiff, thus allowing the police in its discretion to decide on whether or not to prosecute, it cannot in such a circumstance be regarded that the Plaintiff was prosecuted by the defendant. See PANDIT GAYA PARSHAD TEWARI v. SARDAR BHAGAT SINGH (1908) 24 LLR 884; FARLEY v. DANLES (1855) AI VB495.
2. That the prosecution was ultimately determined in favour of the plaintiff.
3. Thus, resulting in discharge thereof.
That the prosecution was without any reasonable and probable cause whatsoever. Thus, where, for instance, the defendant makes a false report against the plaintiff resulting in the latter’s prosecution, this is manifestly evident that the defendant has no reasonable and probable cause for making the report to the police or security agency. See PAYIN & ANOR v. ALIUAH, 14 WACA 73 @ 73. BALOGUN v. AMUBIKANKUN (1989) 4 SCNJ 249.
4. That the prosecution was actuated by sheer malice by the defendant against the Plaintiff. See MEERING v. GRAHAM-WHITE AVIATION CO. 122 LT 44 @ 35 & 36, copiously referred to with approval in BAYOL v. AHEMBA, (1999) 71 JSCN 92 @ 99 – 100, wherein it was aptly held, inter alia, by the Apex Court, thus:
Honest belief seems to be the substantial thing that has always to be decided to be decided and such belief must not merely belief by the prosecutor of the guilt of the person, but it must be d belief that the prosecutor will be able to adduce sufficient evidence before a jury or the court as would justify the court in convicting the accused. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

EVIDENCE: CONTRADICTORY EVIDENCE; WHETHER EVIDENCE THAT IS AT VARIANCE WITH THE PLEADINGS OF A PARTY GOES TO NO ISSUE AND WHETHER THE COURT IS PRECLUDED FROM PICKING AND CHOOSING WHICH OF THE WITNESSES TO BELIEVE WHERE THE EVIDENCE ADDUCED BY THE PART’S WITNESSES ARE APPARENTLY AT VARIANCE
Most undoubtedly, the contradictions inherent in the testimonies of the 1st Respondent and DW1 are not merely trivial. Indeed, they are material contradictions. The evidence of the Respondents is at variance with the pleadings thereof, most especially with particular regard to the identity of the Appellant. And it’s a trite and well settled doctrine, that evidence that is so manifestly at variance with the pleadings of a party goes to no issue, thus ought to be discountenanced by the court. See ARJAY LTD v. AIRLINE MANAGEMENT LTD (2003) 108 LRCN 1173 @ 1795; JOLA YEMI v. ALAOYE (2004) 118 LRCN 3942 @ 3957. It’s equally the law, that where the evidence adduced by a party’s witnesses are apparently at variance or in conflict, the court is precluded from picking and choosing which of the witnesses to believe or otherwise. See AJUDUA v. NWOGU (No. 2) (2004) 16 NWLR (Pt. 898) 82. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

Before Their Lordships

HELEN MORONKEJI OGUNWUMIJUJustice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWAJustice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBUJustice of The Court of Appeal of Nigeria

Between

EHIKHAMETALOR EROMOSELEAppellant(s)

AND

1. KECK WERMER
2. LT. COL. PETER OMOBA (RTD.)
3. BENDEL FEED AND FLOUR MILL LTDRespondent(s)

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Justice, Edo State, holden at Ekpoma Judicial Division, which was delivered on October 21, 2004 in Suit No. HEK/22/2003. By the said Judgment, the lower court, coram E. F. Ekponwen, J; the Appellant’s reliefs for unlawful arrest, assault and malicious prosecution sought against the Respondents herein were dismissed. Thus, being dissatisfied with the said Judgment, the Appellant filed the instant appeal in the court below on November 19, 2004. The Record of Appeal was served on the Appellant and transmitted to the court on 07/02/05. The Appellant’s additional grounds of appeal, dated 27/6/07, were deemed properly filed on 15/01/08. The Appellant’s brief was filed on 10/02/05. On the other hand, the Respondents’ Notice, dated 22/4/10, was deemed properly filed dated on 23/01/12. The Respondents’ brief dated 23/01/12 was deemed properly filed on 25/3/13.
On 06/11/13, when the appeal last came up for hearing, the learned counsel adopted their respective briefs of argument. Thus, resulting in reserving Judgment for delivery.
BACKGROUND FACTS:
By the endorsement to the writ of summons and the statement of claim thereof, dated and filed on 30/4/03, the Appellant claimed against the three Respondents, jointly and severally, as follows:
1. The sum of N1,000,00.00 (One Million Naira) only being general damages for unlawful arrest of the plaintiff, on the complaint of the defendants.
2. The sum of N3,000,000.00 (Three Million Naira) only being general damages for unlawful assault.
3. The sum of N7,000,000.00 (Seven Million Naira) only being general damages for malicious prosecution of the plaintiff for the defendants,
4. The sum of N50,000.00 (Fifty thousand Naira) only being special damages in respect of the legal fee paid by the plaintiff to the legal practitioner that defended him at the Magistrate’s Court Irrua.
5. The sum of N50,000.00 (Fifty thousand Naira) only being special damages for medical expenses incurred as a result of injuries sustained.
Total N11,100,000.00 (Eleven Million and One Hundred Thousand Naira) only.
On 24/9/03, the Respondents filed their joint statement of defence to the Appellant’s claimers. The suit eventually proceeded to trial. The Appellant testified and also called three witnesses in the persons of (i) Veronica Ilevbare (PW1); (ii) Eromosele Oyameda (PW2); and Mrs. Mary Akpofure (PW3). On the part thereof, the Respondents equally called three witnesses in the persons of Wermer Keck (1st Defendant); (ii) Ahmed Momoh (DW1); and (iii) James Ugba Otokurin (DW2). Various exhibits were tendered by the parties which were accordingly admitted by the court as Exhibits A – H, respectively. At the conclusion of the trial of the suit, the lower court delivered the vexed Judgment on the said 21/10/04, to the conclusive effect, thus:
On the whole the plaintiffs claim for malicious prosecution cannot be sustained in the face of the available evidence.
Consequently, I dismiss same.
… The consequence of the plaintiffs claims for malicious prosecution, assault and unlawful arrest being dismissed is that the claim for all the sums including legal fees, are dismissed.
Thus, as alluded to above, the appeal is against the Judgment in question.
At page 2 of the brief of argument thereof, the learned counsel to the Appellant, Bola Adekunle Esq. has identified three issues for determination, viz:
i. Whether Appellant by preponderance of evidence established the presence of the relevant ingredients for malicious prosecution in order to succeed against the respondents.
ii. Whether the Appellant did make out a case of unlawful assault against the Respondents.
iii. Whether the arrest and detention of the Appellant was not unlawful.
The submission of the Appellant on the first Issue is contained at pages 2 – 6 of the brief thereof. In a nutshell, it’s submitted that in order to succeed in a case of malicious prosecution, four ingredients must be established, to wit: (i) that the defendant prosecuted the plaintiff; in the sense that he set the law in motion against him; (ii) that consequent upon the prosecution thereof, the plaintiff was discharged; (iii) that the prosecution was without [any] reasonable and probable cause; and (iv) that the prosecution was actuated by malice. See BAYOL v. AHEMBA (1999) 71 LRCN 2347 @ 2371 to 2372.
It was submitted by the Appellant’s learned counsel, that all the above four elements were pleaded and copious evidence given in proof thereof by the Appellant. That, the facts were pleaded and copious evidence led to show that the Respondents prosecuted the Appellant. The Magistrate Court’s Record was tendered and admitted as Exhibit B to buttress this fact. So also did the IPO testify as PW3, to the effect that the Respondents actively instigated the investigation of the Appellant. And that both PW1 and PW2 confirmed that the police was incited to prosecute the Appellant against its discretion. See CCB (NIG.) LTD v. ODOGWU (1999) 2 LRCNCC 159 @ 170. To that extent, it was contended that the first ingredient has been established.
Regarding the second element, it was submitted that the prosecution was in favour of the Appellant. Thus, no proof thereof is needed. In respect of the third element, it was submitted that the prosecution of the Appellant by the Respondents was without reasonable and probable cause. The allegation against the Appellant was false. That, the Appellant was neither in the 3rd Respondent’s premises nor was he the person that submitted the alleged letter to 1st Respondent.
The learned counsel contended, that the 1st Respondent maintained even under cross examination, that he did not know the Appellant. However, he attempted to justify his inability to identify the Appellant, he did not bother to go to the security booth. That the evidence of 1st Respondent has violently contradicted the evidence of DW1, and is also at variance with the Respondents’ proceeding, in paragraph 6 of the Respondents’ joint statements defence. The learned counsel cited the case of ARJAY LTD v. AIRLINE MANAGEMENT LTD (2003) 108 LRCN 1193 @ 1195. JOLAYEMI v. ALAOYE (2004) 118 LRCN 3942 @ 3957, to the effect that, it’s the law that where an evidence is at variance with the pleadings, it goes to no issue. That the court cannot pick and choose which of the two witnesses, (1st Respondent and DW1) to believe. See AJUDA v. NWOGU (No. 2) (2004) 16 NWLR (Pt. 898) 82.
Regarding malice, it was submitted that the lower court erred in law when it held that – “the plaintiff has not shown that the prosecution was borne out of malice…” According to the learned counsel, in this case, since the identity of the person that brought the letter was not certain, based on the evidence of the 1st Respondent who had an encounter with the alleged person, therefore the arrest of the Appellant was not only malicious but also without reasonable and probable cause. In proving the loss suffered thereby, the Appellant testified and tendered Exhibits A, C & D, respectively.
The second Issue was argued at pages 6 & 7 of the Appellant’s brief. It was submitted, that the Appellant did make out a case of assault against the Respondents. He testified and tendered Exhibit E, to the effect that he was beaten by the Respondents. Argued that Exhibit G (Appellant’s statement to police) was inadmissible and ought not to have been admitted by the lower court, as it can only be admitted under cross examination, as required under Section 209 of the Evidence Act. Therefore, the court is urged upon to expunge the said Exhibit G on ground of inadmissibility.
The alteration on the face of Exhibit E has been conceded to by Appellant. However, it’s contended, that the alteration without more, on the face of the said Exhibit E does not derogate from the evidential value thereof. See ORGI v. EMOVO (1991) 1 NWLR (Pt. 168) 478.
It was equally submitted, that the lower court erred in law when it held that the Appellant’s “claims in paragraph 23 (1) (2) of the plaintiff’s statement of claim has no basis as the writ of summons filed has limited his action”. It is argued, that the statement of claim supercedes the writ of summons. And that what is claimed in the statement of claim becomes the claim before the court, though subject to the payment of appropriate filing fees. See EZENWA v. OKO (2008) 157 pg. 230 @ 243 (?) In the instant case, the Appellant need not pay further fees, as the N11,000,000.00 claimed in the writ of summons was assessed and paid for. The two other heads of tort were also referred to in the writ. Therefore, the conclusion of the lower court on the issue was not on the facts before it.
On the 3rd Issue, it was submitted, that the arrest and detention of the Appellant, due to Respondents’ complaint, was unlawful. Because the 1st Respondent said he did not know the Appellant. The evidence of DW1, who said Appellant was the one who brought the letter, is not helpful, as the DW1 did not make a statement, on this issue, at the earliest opportunity. The evidence of DW1 is allegedly an afterthought and unreliable. The court is urged to discountenance same. See NNUNNUKWE v. STATE (2003) 14 NWLR (Pt.340) 224.
Conclusively, the court is urged to uphold the appeal, grant the Appellant’s reliefs, and accordingly set aside the vexed Judgment of the lower court.
On the other hand, the Respondents filed a Respondent’s Notice, with the leave of court duly granted on 23/01/12. By the said Notice, the Respondents seek to contend that the decision of the court below be affirmed on grounds other than those relied upon by the Respondents. The Notice is predicated upon the grounds that:
1. Exhibit B was wrongly admitted.
2. Same Exhibit B cannot confer any valid legal benefit on the Appellant in Respect of the Appellants claim of damages against the Respondents.
The Respondents’ extant amended brief, dated 23/01/12, was deemed properly filed on 23/3/13. It was settled by Mat. I. Enedion Esq.; of Chief A. B. Thomas & Co. of Respondents’ counsel. The said Respondents’ Amended brief spans a total of 18 pages.
At pages 2 and 3 of the said brief thereof, the Respondents’ counsel has couched four issues for determination, to wit:
(i) Whether, in the light of the evidence available on the printed Record, it can be rightly said that the Respondents prosecuted the Appellant in the criminal charge No. MCI/117/2000.
(ii) Whether Exhibit B, on the basis of which the Appellant instituted his action at the High Court, Ekpoma, is capable of conferring any legal benefit on the Appellant for purpose of seeking damages from the Respondents.
(iii) Whether Exhibit “H” which constitutes the foundation and/or source from which the action leading to the alleged prosecution in the said criminal charge No. MCI/117/2000 originated is weighty enough to put any prudent and cautious person(s) on an appropriate and legitimate enquiry by taking the type of action/step which the Respondents took when the Appellant brought Exhibit “H” to the 1st Respondent.
(iv) Whether, in the circumstances of this case, the Appellant can be said to be entitled to any and/or all the Reliefs sought in para.23 of his Statement of Claim.
The argument on Issue No.1 is contained at pages 3 – 5 of the Respondents’ brief. In a nutshell, it’s submitted, that the gravamen of Appellant’s case is that the Respondents instigated and provided the information on the basis of which the Appellant was arraigned in criminal charge No.MCI/117/2000. However, the evidence on printed Records shows clearly that the Respondents only made complaints and acted within the confines of the law in all actions or steps they took on the matter.
Further submitted, that from the testimonies of the Appellant and PW3 aid the Respondents’ statement of defence on the Records, it’s clear enough that the Respondents, as responsible and law abiding citizens, only reported their encounter with the Appellant on 10/12/2000 to the police, and no more. That any complaint, report or information given by the Respondents to the police for that purpose cannot amount to setting the law in motion against the Appellant. See OWOMERO v. FLOUR MILLS (NIG.) LTD (1995) 9 NWLR (Pt. 427) 622 @ 630 paragraphs C – G; EZEADUKA v. MADUKA (1997) 8 NWLR (Pt. 518) 635 @ 663; C – D; 666 D – E; 667 B – C; & 668 A; IWUNWAH v. IWUNWAH (1999) 13 NWLR (Pt. 635) 425 @ 431 D-G.
It was argued, that in the present case, it’s quite clear that the police of their own volition chose to prefer charges and prosecuted the Appellant, after due investigation. Therefore, the Respondents, having merely made complaints, cannot be held liable for malicious prosecution for the completely independent action of the police. See NIG. TELECOMMUNICATIONS PLC v. EMMANUEL O. AWALA (2002) 3 NWLR (Pt. 753) 1 @ 13 B – E; ALIMAINA MOBAR v. IBRAHIM ALLI (2002) NWLR (Pt. 747) 95 @ 107 H; 108 A – C. The court is urged to resolve Issue No.1 against the Appellant.
The Issue No.2 is argued at pages 5 – 8 of the Respondents’ brief. It is submitted, inter alia, that Exhibit B admitted in Suit No. HEK/22/2003 has no legal value of any type from which the Appellant can seek to benefit in pursuit of the claim thereof against the Respondents. The reason being that Exhibit B is allegedly admissible under Section 35 of the Evidence Act. Secondly, the Respondents were not parties in the criminal charge No.MCI/117/2003, which is purely criminal in nature, as against Suit No. HEK/22/2003 which is civil against the Respondents. See NIG. TELECOMMUNICATIONS PLC v. AWALA (supra) 13 – 14 F – H & A; NWADIALO F – MODERN NIGERLAN LAW OF EVIDENCE 2nd Edition 249.
It was contended, that Exhibit B being an inadmissible document, it’s not within the competence of both parties and court to admit it by consent or otherwise. See AUDU v. AHMED (1990) 5 NWLR (Pt. 150) 287 @ 298H; YERO v. UBN LTD (2000) 5 NWLR (Pt. 657) 470 @ 479 E – G; DAGASH v. BULAMA (2004) 14 NWLR (Pt. 892) 144 @ 228. LAWSON v. AFANI CONST. CO. LTD (2002) 2 NWLR (Pt. 752) 585; BIAMERI v. FED MORTGAGE BANK (2003) FWLE (Pt. 121) 1858.
Posited that without Exhibit B and paragraph 18 of Appellant’s Statement of Claim, in Suit No. HEK/22/2003, the entire claim becomes fundamentally and irretrievably defective, having nothing or an anchor to hold it in place. That it’s settled, you cannot put something on nothing and expect it to stand. It will surely collapse: MACFOY v. UAC LTD (1962) AC 152. The court is urged to resolve Issue 2 in favour of Respondents.
The Issue No. 3 was extensively argued at pages 8 – 14 of Respondents’ brief. The case of USIFO II v. UKE (1956) NSCC Vol. 7 page 25 @ 26, regarding the definition of the term – “reasonable and probable cause.”
It was contended that Exhibit H, the facts and circumstances of this case, meets the requirements of what should ordinarily constitute a reasonable and probable cause as expressed in USIFO II v. UKE (Supra). It was further submitted, that Exhibit H was brought to the Respondents by the Appellant who was not known to the Respondents before 10/12/2000. As such, the Respondents were justifiably startled by the strange content of Exhibit H. They thus wasted no time in referring the Appellant and Exhibit H to the police. That, the action by the Respondents is proper and legitimate.
Further submitted that on its part, the police enjoys unfettered statutory right to invite any person whom it considered to be in a position to make useful and relevant statement on any matter before it. The fact that police failed to so act after receiving the Respondents’ report is not a sufficient reason to whittle down the weight of the evidence legally called by Respondents in support of their case. The court is urged to discountenance the contention of the Appellant under Issue 3 of the brief thereof, to the effect that the DW1 did not make a report to the police. That, the said witness was neither examined nor contradicted in any way on his evidence. See SAIPOM v. TEFA (2002) 16 NWLR (Pt. 793) 410 @ 435 B – D; ANIGBOGU v. UCHEJIGBO (2002) 10 NWLR (Pt. 776) 472 @ 486 – 487 H – B; OWENA BANK PLC v. OLAJUNJI, (2002) (Pt. 781) 259 @ 336 G – H.
The court is urged to hold that it’s the Appellant who brought Exhibit H to the 1st Respondent, particularly having regard to the wording of the 1st count of Charge No. MCI/117/1000. The Respondents urged on the court not to be persuaded by the Respondents’ contention that was malice in his prosecution. And that the absence of honest belief in the guilt of the accused person must not be confused with honesty of motive. See TEMPEST v. SNOWDON (1952) 1KB 130 @ 140 per Lord Denning, J (as he then was); LINDSELL ON TORTS, 11th Edition @ 868.
The court is urged to resolve Issue 3 in favour of the Respondent.
On Issue 4, it’s submitted that the Appellants’ claim regarding malicious prosecution has woefully failed. As such, whatever benefits that may accrue to him arising from his discharge in criminal Charge No. MCI/117/2000 cannot legally support his claim against the Respondents, who only made complaints and at best a witness through the 2nd Respondent.
Exhibit B is said to be inadmissible by reason of Section 35 of the Evidence Act. And neither parties to a case nor the court have competence, whether by consent or otherwise, to admit a document which by law, is inadmissible. The court is urged to exercise the power thereof under Section 16 C – d, 1976 to expunge Exhibit B from the Record, and dismiss the appeal. As the appeal is ‘itself’ a gross abuse of court process, having been premised on sheer speculation, frivolity and outright recklessness. See TOMTEC (NIG) LTD v. FED. HOUSING AUTHORITY (2009) 18 NWLR (Pt. 1173) 3s8 @ 376 – 377 A – E.
Conclusively, the Respondents have urged on the court to dismiss the appeal, as same is misconceived, speculative, lacking in merits, and thoroughly baseless.
I have amply considered the nature and circumstances surrounding the appeal, the submissions of the learned counsel contained in their respective briefs of argument vis-Ã -vis the records of appeal, as a whole.
It is evident from the record of appeal (pages 93 & 94), that the original notice of appeal was dated and filed on 19/11/04. It was predicated upon an omnibus ground of appeal. However, on 27/6/07, the Appellant’s counsel, Bola Adekanle, Esq. filed an application seeking leave to file and argue four additional grounds of appeal, to the following effect:
1. The lower trial court erred in law and thereby misdirected itself when it held that “the plaintiff has not shown that the prosecution was borne out of malice. The parties had no previous relationship and Exhibit “H” obviously calls for the kind of step taken if actually plaintiff was the author and the person who delivered same which is being contested”
PARTICULARS OF ERROR
(a) Malice in malicious prosecution is not limited to hatred, ill will, spite etc but also includes absence of honest belief in the charge preferred against the plaintiff.
(b)The conclusion of the lower trial court was based on speculation.
2. The trial court erred in law having not properly evaluated the evidence before it and thereby misdirected itself as to the evidential value placed on the evidence of witness before it.
PARTICULARS OF ERROR
(a) It is not expected in law that PW2 and PW3 must state exactly the same thing while giving account of what they both saw and witnessed.
(b)There are material contradictions in the case of the defendants and the evidence of 1st defendant is at variance with the pleadings.
(c) The identity of the author and the person that brought Exhibit “H” is not certain as 1st defendant said he did not know the plaintiff.
(d) 1st defendant in attempt to justify his inability to identify the author and who brought exhibit “H” said he did not bother to go to the security boot (sic) of 3rd defendant to see the alleged person that brought the said exhibit “H” since he had invited the Chief Security Officer.
(e) DW2 said the 1st defendant came to the security boot (sic) and asked him to open the gate for the plaintiff and later plaintiff and 1st defendant were arguing.
(f) 1st defendant said d security man called him on phone and he asked him to bring the letter to him in their quarters which the security man did, whereas DW2 said the 1st defendant asked him to hold the letter that he was coming and he actually come, However, in their pleadings it is stated that 1st defendant left his office for security gate of which he met the plaintiff for the first and the last time where plaintiff introduced himself as Dr. Peter Osunbor. Thereafter the plaintiff handed an envelope which contained a letter dated 10/12/2000 to the 1st defendant.
3. The lower trial court erred in law when it held that plaintiffs claim of assault is not made out.
PARTICULARS OF ERROR
(a) Plaintiff led evidence to show that he was beaten by the 2nd defendant at the instigation of the 1st defendant.
(b) Medical report was admitted in evidence to proof (sic) the assault of the plaintiff.
4. The lower court erred in law when it held that the claims in paragraph 23(1) (2) of plaintiffs statement of claim has no basis as the writ of summons filed has limited his action. Be that as it may, the arrest of plaintiff’s was lawful in the given circumstances of his (sic) case.
PARTICULARS OF ERROR
(a) Statement of claim superceded the writ of summons.
(b)There is no proof that plaintiff was the one that brought the alleged letter to have justified his arrest and detention.
Regrettably, however, neither the Appellant nor the Respondents had deemed it expedient to relate any of the grounds of appeal in question to the issues raised in the respective briefs thereof. Yet, it’s a trite principle, that issues raised (formulated) in a brief of argument must clearly be distilled from competent grounds of appeal. Thus, where issues raised in a brief of argument are not predicated upon grounds of appeal, they shall be liable to be struck out for being incompetent. See OCEANIC BANK INTERNATIONAL LTD v. CHITEX IND. LTD (2001) FWLR (Pt. 4) 678; DADA v. DOSUNMU (2006) 18 NWLR (Pt. 1010) 134; IDUCA v. ERISI (1988) 2 NWLR (Pt. 78) 563; ANIMASHAUN v. UCH (1996) 10 NWLR (Pt. 476) 65.

It’s axiomatic, that the significance of a brief of argument to the administration of justice, most especially with regards to both the Supreme Court and the Court of Appeal, cannot be over emphasised. Inarguably, brief writing was introduced into the Nigerian Judicial System vide the Supreme Court Rules, 1977. See Order 9 of the Supreme Court Rules, 1977 and Order 6 of the Supreme Court Rules, 1985.
However, although the Court of Appeal was created in 1976, the requirement for brief of argument was not introduced into the Court of Appeal Rules until much later in 1983. And this was necessitated by a sheer expediency to beat the tight schedules for hearing appeals emanating from Election Petition Tribunals. See Practice Directions No. 1 of 1983; paragraph 1.2.6 Court of Appeal (Amendment) Rules, 1984. As once aptly observed by this court –
One of the fundamental reasons for the introduction of brief writing in both the Supreme Court and the Court of Appeal, was to compel the counsel to consider in advance the merits of the appeal he has to argue or oppose, as the case may be, therefore, discouraging the pursuit of frivolous appeals or advancement of preposterous arguments. Thus, where on appeal is clearly indefensible, or the argument appealed against is rather defective, unconstitutional, or outrageously illegal, counsel on either side has an onerous duty to state so in the brief thereof. By so doing, the appeal could be expeditiously and, where necessary, summarily disposed off. See ANPP v. REC AKWA IBOM STATE (2008) 8 NWLR (Pt. 1090) 453 @ 502 paragraphs B – G. See also Philip Nnaemeka-Agu JCA (as he then was); MANUAL OF BRIEF WRITING IN THE COURT OF APPEAL AND SUPREME COURT OF NIGERIA, Fourth Dimension Publishers 1986, @ 4.
I have had a cause to point out, heretofore, that the issues as couched in the briefs of argument of the respective parties have not been related to, or distilled from, the grounds of appeal. Yet, it’s a trite and well established doctrine that –
The fundamental objective of grounds of appeal is to notify the other party of the nature of the case he would meet in the appellate court. Once what the Appellant is appealing is discernible, it may not be necessary or desirable to strike out the grounds of appeal, as doing so may amount to deniable of his right of appeal and fair cherishingly and duly enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999, The trend in the Nigerian courts has been to ensure that substantial justice as against technical justice is done to the parties at all times.
So was it held by this court in the case of ANNP v. REC AKWA IBOM STATE (Supra) @ 510 paragraphs C – F; 537 – 538 paragraphs H – B, per Saulawa, JCA. See also OGBORU v. IBORI (2006) 17 NWLR (Pt. 1009) 542; OGUNBI v. KOSOKO (1991) 1 NWLR (Pt. 210) 511; EKANEM v. AKPAN (1991) I NWLR (Pt. 211) 616; ELEGBU v. FATB (1992) NWLR (Pt. 220) 669; DANAGHE COMMUNICATIONS LTD v. AIKHOMU (1994) 2 NWLR (Pt. 327) 420.
Flowing from the above far-reaching postulations, I think it would be apt, at this point in time, to hold that in view of the submissions of the learned counsel contained in the respective briefs thereof vis-Ã -vis the original sole ground and two additional grounds of appeal, two issues are germane for the determination of the present appeal, viz:
1. Whether the lower court was right in dismissing the Appellants claim for malicious prosecution, unlawful assault, arrest and detention against the Respondents. (This Issue No. 1 relates to Ground 1 & 4 of the Additional Grounds of Appeal).
2. Whether the decision of the lower court being appealed against is perverse due to failure to properly evaluate the evidence placed before it, (The second issue relates to the Ground 2 of the Additional Grounds of Appeal).
ISSUE NO. 1:
As alluded to above, the first issue raises the question of whether or not the lower court was right in dismissing the Appellant’s claim for malicious prosecution against the Respondents.
Etymologically, the term malice, as a noun, invariably denotes the intent, without any justification or (lawful) excuse, to commit a wrongful act. It connotes a reckless (negligent) disregard of the law or a person’s legal rights. Invariably, malice is characterised by ill-with wickedness of the heart: BLACK’S LAW DICTIONARY, 9th Edition, 2009 @ 1042.
According to John Salmond –
Malice means in law wrongful intention. It includes any intent which the law deems wrongful, and which therefore serves as a ground of liability. Any act done with such on intent is, in the language of the law, malicious, and this legal usage has etymology in its favour, The Latin Malitia means badness, physical or moral – wickedness in disposition or in conduct – not specifically or exclusively ill-will or malevolence; hence the malice of English Law, including all forms of evil purpose, design, intent, or motive. (But) intent is of two kinds, being either immediate or ulterior, the ulterior intent being commonly distinguished as the motive. The term malice is applied in law to both these forms of intent and the result is somewhat puzzling ambiguity which requires careful notice. When we say that an act is done maliciously, we mean one of the two distinct things. We mean either that it is done intentionally, or that it is done with some wrongful motive. See JOHN SALMOND: JURISPRUDENCE (Glanville L. Williams 10th Edition, 1947) @ 384; BLACK’S LAW DICTIONARY (Supra) @ 1042.
Thus, flowing from the foregoing definitions, it is trite, that the term malice, in the very legal sense thereof, imports (i) the absence of all elements of justification, excuse or recognised mitigation, and (ii) the presence of either (a) an actual intent to cause the particular harm which is produced or harm of the same general nature, or (b) the wanton and willful doing of an act with the knowledge of a clear and strong likelihood that such harm may result. See Rolling M. Perkins & Ronald N. Boyce: CRIMINAL LAW 3rd Edition, 1982 @ 890, referred to at page 1042, BLACK’S LAW DICTIONARY (Supra).

It is trite, that once a wrongful prosecution has terminated (ended) in favour of the defendant, he or she is cloaked with the discretion to sue for tort of damages.
Instructively, at page 91, lines 2 – 3 and 19 – 21 of the Record, it was conclusively held by the lower court, thus:
It is contested the plaintiff was discharged in the charge in the magistrate’s court which is the basis for this charge.
The plaintiff has not shown that his prosecution was borne out of malice…
On the whole, the plaintiff’s claims for malicious prosecution cannot be sustained in the face of the available evidence. Consequently I dismissed same.
… The consequence of the plaintiffs claims for malicious prosecution, assault and unlawful arrest being dismissed is that the claim for all the sums including fees are dismissed.
However, the contention of the Appellant is that he had –
“Proved his case by preponderance of evidence and ought to have been given judgment by the lower court.” See page 2 paragraph 4 of the Appellant’s brief of argument.
Contrariwise, the totality of the submission of the Respondents, is to the effect that –
The Respondents having merely made complaints, cannot be held liable on d claim of malicious prosecution in the circumstances of this case for the completely independent action of the police. See pages 5 paragraph 5.03 of the Respondents’ brief.
As alluded to above, in an action for malicious prosecution (as in the instant case), the Plaintiff has the onerous duty not only to plead, but also establish, by credible evidence, four fundamental factors, viz –
1. That the defendant prosecuted him, that’s to say, he set the law in motion against him. It’s been held in a plethora of decisions, that where the defendant merely made a report to the police but did not (actually) instigate the prosecution of the Plaintiff, thus allowing the police in its discretion to decide on whether or not to prosecute, it cannot in such a circumstance be regarded that the Plaintiff was prosecuted by the defendant. See PANDIT GAYA PARSHAD TEWARI v. SARDAR BHAGAT SINGH (1908) 24 LLR 884; FARLEY v. DANLES (1855) AI VB495.
2. That the prosecution was ultimately determined in favour of the plaintiff.
3. Thus, resulting in discharge thereof.
That the prosecution was without any reasonable and probable cause whatsoever. Thus, where, for instance, the defendant makes a false report against the plaintiff resulting in the latter’s prosecution, this is manifestly evident that the defendant has no reasonable and probable cause for making the report to the police or security agency. See PAYIN & ANOR v. ALIUAH, 14 WACA 73 @ 73. BALOGUN v. AMUBIKANKUN (1989) 4 SCNJ 249.
4. That the prosecution was actuated by sheer malice by the defendant against the Plaintiff. See MEERING v. GRAHAM-WHITE AVIATION CO. 122 LT 44 @ 35 & 36, copiously referred to with approval in BAYOL v. AHEMBA, (1999) 71 JSCN 92 @ 99 – 100, wherein it was aptly held, inter alia, by the Apex Court, thus:
Honest belief seems to be the substantial thing that has always to be decided to be decided and such belief must not merely belief by the prosecutor of the guilt of the person, but it must be d belief that the prosecutor will be able to adduce sufficient evidence before a jury or the court as would justify the court in convicting the accused.
In the instant case, the Appellant’s pleading vide the statement of claim thereof is contained at pages 3 – 5 of the Record. Of the 23 paragraphs of the said statement of claim, paragraphs 11 – 22 are most instructive, thus:
11. The plaintiff states that the police arrested him based on the alleged allegation that he brought a letter to 1st defendant to defraud him.
12. The plaintiff states that, the police in the course of their investigation went to his house, where a search was conducted, but nothing incriminating was found against him and having concluded their investigation, it was discovered that the allegation was baseless and unfounded.
13. The plaintiff states that after 3 days in the cell, he was taken to the 3rd defendant’s premises by the I.P.O. to see the 1st defendant. The I.P.O. told the 1st defendant that the police investigation concerning the alleged offence has not revealed anything incriminating against the plaintiff and as such they would like to release him.
14. The plaintiff avers that 1st defendant insisted that he (the plaintiff) must be prosecuted other wise, he will write a petition against the police.
15. The plaintiff avers that he was later charged to the magistrate’s court Irrua, in Charge No. MCI/177/2000.
16. The plaintiff avers stoutly that his arrest based on the allegation of the 1st defendant and the subsequent detention was unlawful and unconstitutional.
17. The plaintiff avers that he engaged the services of a legal practitioner who defended him at the magistrate’s court Irrua and paid him N50,000.00. The plaintiff shall rely on the receipt issued to him by his counsel at the trial of this suit.
18. The plaintiff states that at the end of the trial he was discharged and acquitted. The plaintiff shall at the trial rely on the record of proceedings and the judgment of the said case before the magistrate’s court, Irrua,
19. The plaintiff states that the defendants maliciously and without reasonable and probable cause prosecuted him.
20. The plaintiff states that the 1st and 2nd defendants acted in their official capacity as staff of the 3rd defendant.
21. The plaintiff states that he was been humiliated, his character was damaged and has suffered loss and inconvenience as a result of this malicious prosecution by the defendants.
22. The plaintiff states that he lost his job due to his constant absence from work in the course of the prosecution of this case. The plaintiff shall at the trial rely on the queries he received and the letter terminating his appointment during the trial of this suit.
In addition to the averments contained in the said statement of claim thereof, the Appellant testified and equally called three other witnesses in the persons of the following: (i) Veronica Ilovbare (Mrs.), the Appellant’s senior sister, who testified as PW1; (ii) Eromosele Oyameda, the Appellant’s senior brother, as PW2; (iii) Mary Akpofure (Mrs.), a policewoman inspector, as PW3. In addition to the testimonies of the said witnesses, the Appellant tendered various documents which were admitted as Exhibits A, B, C, D, E, F, G, & H, respectively. (i) Exhibit A is the official Receipt; (ii) Exhibit B – the Certified True Copy of Proceedings; (iii) Exhibit C – Appellant’s Appointment Letter; (iv) Exhibit D – Letter of Termination of Appointment; (v) Exhibit E – Medical Report; (vi) Exhibit F – Certified True Copy of Proceedings (vii) Exhibit G – Statement of the Appellant; and (viii) Exhibit H – Letter dated 05/12/2000, respectively.
Contrariwise, by the averments contained in the joint statement of defence thereof, the Respondents have averred, inter alia, thus –
11. With reference to paragraphs 13, 14, 15 and 16, Defendants say that they did not know and were never privy to the action and decision of the police in respect of the charge mentioned in paragraph 15. As a matter of fact, the 1st Defendant did not know nor hear anything again about this matter after encounter of 10/12/2000 with the Plaintiff.
12. With respect to paragraph 17, 18 & 19, the Defendants say that the claim made in paragraph 17 is strictly within the personal knowledge of the Plaintiff and further say that it is not true that the Plaintiff was acquitted. The Defendants shall rely, at the hearing of the suit on a Certified True Copy of the Magistrate’s Court, Irrua on 9/4/2001 in respect of the charge. The Defendants who did not know the Plaintiff before 10/12/2000 did not act mala fide in the subject matter giving rise to this suit. See page 22 of the Record.
The present 1st Respondent (1st defendant) did testify at the trial on 25/5/04. His testimony is contained at pages 42 – 43 of the Record. Pages 44 – 47 of the Record of Appeal are indicative to the fact that two witnesses did testify for the Respondents in the persons of the following: (i) Ahmed Momoh, a security officer with the 3rd Respondent, who gave evidence as DW1; and (ii) James Ugba Otokurin, General Manager (Administration and Legal Services) with 3rd Respondent. Exhibit F (the Record of Proceedings in respect of Charge No. MCI/177/2000 was tendered and admitted vide the DW2.
In line of the pleadings thereof, the Appellant testified to the effect, inter alia, that on 09/12/2000 on a Sunday, he came from Lagos to visit his parents at Akho-Irrua. And the following day (10/12/2000), he went to Ewu to visit his sister (PW1). After that visit, he walked to the 3rd Respondent’s gate, to wait for the 3rd Respondent’s “road train” (a staff bus) to take him to Irrua. However, after a while, the 2nd Respondent met him at the junction with a letter in his hand and asked him if he was the person that submitted a letter to the 1st Respondent. He replied in the negative. Allegedly, the 2nd Respondent held him by his shirt and dragged him to 3rd Respondent’s gate. At the instance of 1st Respondent, the Appellant was searched but nothing incriminating found thereon. He denied submitting the letter. Upon the instruction of 1st Respondent, the 2nd Respondent and other security men put the Appellant in a car and handed him over to the police. He was tortured by the 2nd Respondent and other security men. He bled from head and mouth.
At the police station, the Appellant was handcuffed. He was cautioned and his statement obtained by DW3 in English. The police conducted a search at his house, but nothing incriminating was found. He was detained at the police station. At the conclusion of police investigation, no criminal case was revealed against him. The allegation was found to be “baseless and unfounded”. Yet, according to the Appellant, the 1st and 2nd Respondents insisted that the police must charge him to court, otherwise they would write a petition against the police. Thus, Appellant was prosecuted based on an allegation levelled against him by the 1st and 2nd Respondents. However, on 09/4/2001, the Judgment was delivered by the Magistrate’s court and he was discharged.
Now, it must be pointed out, at this point in time, that the evidence of the Appellant or any witness for that matter, that testified at the criminal trial of the Appellant (regarding the charge No.MC/117/2000) is not at all material or relevant to the instant civil action.
See Section 34 (1) of the Evidence Act, thus:
34(1). Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which in the circumstances of the case, the court considers un reasonable; provided –
(a) That the proceeding was between the same parties or their representatives in interest;
b) That the adverse party in the first proceeding had the right and opportunity to cross-examine; and
(c) That the questions in issue were substantially the same in the first as in the second proceeding.
(2) A criminal trial or inquiry shall be deemed to be proceeding between the prosecutor and the accused within the meaning of this section.
In the case of BAYOL v. AHEMBA (Supra) @ 101, the Apex Court aptly held, inter alia, thus:
Evidence of a witness given in an earlier judicial proceeding is neither relevant nor admissible (except as we shall show presently, under Section 34 (1) of the Evidence Act) in a subsequent judicial proceeding although such evidence may be used for purposes of cross examination of the same witness as to credit. See Alade v. Aborishade (1960) 5 FSC 167, Folarin v. Darojaiye (1988) 1 NWLR (Pt. 70) 351 and 369 and Olunjinle v. Adeagbo (1988) 2 NWLR (Pt. 75) 238 at 250. In other words, the evidence of PW3 in the previous criminal proceeding did not constitute legal evidence in the civil proceeding before the trial Judge in this case, but Exhibit 1, as a document evidencing the prosecution of the Appellant that terminated in his favour was not only relevant but was also admissible in evidence in proof of one of the ingredients in the action for malicious prosecution. Per Achike, JSC (of remarkably blessed memory)
Flowing from the Supreme Court’s decision in BAYOL v. AHEMBA (Supra), et al, it’s rather obvious that Exhibit B (the Certified True Copy of the criminal proceedings in Charge No. MCI/117/2000) is not only relevant, but equally admissible evidence in proof of the vital ingredients in the action, establishing that the Appellant was indeed prosecuted but discharged of the two counts criminal charge against him. Thus, both the 1st and 2nd ingredients are deemed established. And I so hold.
The 3rd ingredient is whether the prosecution was without any reasonable and probable cause. Of the three witnesses that testified for the Appellant at the trial in the instant case, the evidence of the PW3, Mrs. Mary Akpofure, a woman police inspector, is most instructive! As a matter of fact, the PW3 could easily pass-off as the Appellant’s star witness, so to say. And the reason for that view is not at all far-fetched. The evidence of PW3 is contained at pages 35 – 37 of the Record. In the examination in chief thereof, the PW3 stated, inter alia, that on 10/12/2000, at about 1630hours a case of attempt to commit an offence to wit: 419 (fraud) was reported by the 2nd Respondent against the Appellant. She cautioned the Appellant in English, and he volunteered a statement. She effected a search on the Appellant’s house, and also visited the scene of crime, the 3rd Respondent’s premises.
According to the PW3 –
Before I charged accused to court, I visited the 3rd defendant to meet the Chief Security Officer said they want the case charged to court, I laughed. The Chief Security Officer told me that they want the plaintiff used a lesson for others as 419 fraudsters have been visiting the company of late and I should charge him to court. Right from the date the case was reported, the Chief Security Officer of 3rd Defendant had been pressing me that they want the case charged to court.
Under cross examination by A. B. Thomas, Esq.; the PW3 stated, inter alia, that as a police officer, she took orders from her DPO and that –
“The scene of the evident is outside the gate of Flour Mills, Ewu.”
Undoubtedly, the testimony of the PW3 is cogent and unassailable. I would want to believe, based on the evidence on record, that the PW3 is indeed a witness of truth. And the fact that the police (the PW3 inclusive) were pressurized to charge and prosecute the Appellant at the Magistrate’s Court is beyond doubt in the instant case. Not surprisingly, on 26/3/2001, the Appellant’s defence counsel made a no case submission urging upon the Magistrate’s Court to discharge the Appellant on the grounds, that:
no case has been made out against the accused person to require him to defend himself under Section 286 and 287 of the CPA.
Two witnesses testified for prosecution. The 1st witness is the Chief Security Officer of Company in question. I submit that the evidence given by him and to hearsay. The said Mr. Keck who should be the complainant in this case did not testify. It was him who POI (sic) said told him that the accused tried to defraud him. He also did not make a statement to the police. The law of hearsay is clear. The evidence should be expunged from the records, as it is inadmissible.
The PW2 is the IPO to who the accused was handed over. His evidence does not in any way incriminate the accused.
I there (sic) submit that no evidence has been adduced to warrant calling on the accused to defend himself. I urged the court to discharge and acquit thee accused.
The well considered Ruling of the Magistrate’s Court was delivered, to the conclusive effect, thus:
Prosecution has neither adduced evidence to prove that the accused introduced himself as DV Osunbor, to whom he did and that he did so with intend to defraud. He therefore cannot go further than the stage he is now.
He has failed to establish the offences in court 1 and 2 of the charge against the accused person. In the circumstances both counts are dismissed and the accused discharged.
I uphold the submission of the Appellant at page 3 of the brief thereof, to the effect, inter alia, that –
PW3 was an independent witness whose evidence has proved that the Respondents did not merely report a case to the police but instigated prosecution. The fact that the Chief Security Officer of the 3rd defendant testified at the Magistrate’s Court where the Appellant was prosecuted further confirmed that the Respondents threatened to petition the police if the Appellant was released on bail or not charged to court as stated in their evidence by the Appellant’s PW1 and PW2.
I think, I cannot agree more with the above apt submission of the Appellant’s learned counsel. From the pleading and evidence on record, it’s obvious that the police (PW3 inclusive) was incited, teleguided, or influenced by the Respondents to maliciously prosecute the Appellant at the Magistrate’s Court in question. And I so hold. See CCB (NIG) LTD v. ODOGWU (1999) 2 LRCNCC 159 @ 170.
With particular regards to the allegation of unlawful assault, (as raised in Issue 2 of the Appellant’s brief), I would want to believe that the evidence on record has not established the Appellant’s claim against the Respondents.
Indeed, it’s evident on the record that the Appellant testified at pages 37 – 41 of the Record, to the effect, inter alia, that he was assaulted (beaten) by the Respondents. He rendered Exhibit E, the Medical Report obtained from Central Hospital Benin. The finding of the lower court regarding Appellant’s claim for unlawful assault is contained at page 85 lines 8 of the Record, is to the effect, thus:
On relief 23(5) he submitted that the plaintiff has not strictly proved same. The evidence from plaintiff and his witness did not prove the subhead. Exhibit ‘E’ is the letter from the hospital. The dates on Exhibit ‘E’ was altered and no probative value should be given to it. Plaintiff said he was arrested and detained on 10/12/2000, he alleged the defendants beat him up that and kept in detention on 15/12/2000. The date on Exhibit ‘E’ is 19/12/2007 which means it was after one month before he was in hospital. Plaintiff said he was hospitalized for several days, Whereas Exhibit ‘E’ shows he was treated for chest pain of one day duration, Exhibit ‘E’ was made for the purpose of digging gold from the defendants. Plaintiff did not tender any receipt. He refers to Exhibits ‘B’, ‘F’, and ‘G’, and stated it is clear that Plaintiff did not state he was ever beaten.
I think, I cannot agree more with the above unassailable findings of the lower court, especially regarding the veracity of the testimony of the Appellant vis-Ã -vis Exhibit ‘E’. The fact that Exhibit ‘E’ had been altered is not at all in doubt. As even the Appellant (himself) has conceded to that very obvious fact. At page 6 paragraph 4 of the Appellants brief, it’s posited thus:
The lower court raised the issue of alteration on the face of Exhibit ‘E’. We concede the alteration as correcting fluid was actually used in respect of the date. This I submit is a mistake of the typist that typed the document and not the act of the Appellant, as stated by the Appellant, under cross-examination that he did not alter Exhibit ‘E’. The respondents at the lower court did not say that Exhibit ‘E’ did not emanate from Central Hospital Benin City, therefore the existence and authenticity of the document were not in contention before the lower court Act of dishonesty has not been traced to the Appellant in relation to the document.
Unfortunately for the Appellant, the case of ORGI v. EMORO (1991) 1 NWLR (Pt. 168) 498 does not avail him. The reason advanced by Appellant’s learned counsel above, is preposterous and a sheer afterthought to say the least. As aptly held by the lower court, it’s obvious that Appellant failed to tender any receipt for the amount of money he expended on drugs, et al. What is more, the Appellant did not state in Exhibits B, F and G that he was beaten up (assaulted) by the Respondents, the police or anybody else, for that matter. Thus, in view of the above postulation, the claim for unlawful assault is deemed baseless. The lower court was therefore right in dismissing same. And I so hold.
Regarding the allegation for unlawful arrest and detention, I think there is every cogent reason for me to hold that the claim has been established by the Appellant against the Respondents. The PW3 testified to the fact that on 10/12/2000, at about 16.30hrs, a case of attempt to commit an offence of 419 (fraud) was reported by the Respondents against the Appellant. The case was referred to her for investigation, as a result of which she –
… arrested the accused person i.e. the plaintiff… cautioned him in English Language and he volunteered statement on the part thereof, the PW2, Eromosele Oyamoda (Appellant’s senior brother), equally testified to the fact that on
“10/2/2000, on that day, a Sunday, I was at home at about 4pm when I saw the plaintiff with two police men. He was handcuffed… I told the police I wanted to take plaintiff on bail, they refused saying they are afraid because 1st defendant had threatened to write a petition against them if plaintiff was granted bail without his consent. On the 3rd day when I went to give plaintiff food, I met that the police had handcuffed him… When the plaintiff was charged to court I got a lawyer for him. I paid the lawyer N50,000.00 for plaintiffs bail, and handling of the case.”
In the light of the pleadings and evidence on record, there is every good reason for me to hold that the claim for unlawful arrest and detention has equally been established.
In the circumstance, therefore, the answer to Issue No. 1, is in the negative, and same is resolved in favour of the Appellant.
ISSUE No. 2
The second and last issue raises the vexed question of whether the decision of the lower court is perverse, due to the alleged failure to properly evaluate the evidence placed before the court.
I think, having resolved the first issue in favour of the Appellant, it goes without saying that the answer to the second issue ought to equally be in the positive, in favour of the Appellant. And my reason for so holding is not far to seek. The fact that the criminal allegation of 419 (fraud) against the Appellant was unsubstantiated at the Magistrate’s Court is no longer in doubt. The evidence of the 1st Respondent, Wermer Keck, was inter alia, to the effect that on 10/12/2000 in question he was called on phone by the security man at the camp gate. He was told that one Mr. Peter from Abuja came with an urgent letter for him. The DW1 said he then asked the security man to bring the letter to his house. On receiving and reading the letter, the DW1 said he discovered –
“It was about some 5 millions of dollars and the semblance of a 419 kind of letter which had my name spelt wrongly and many matmatical (sic) faults.”
The 1st Respondent maintained both in examination in chief and under cross-examination, that he did not know the Appellant, and that –
“I cannot say if it was the plaintiff that brought the letter that day. I cannot recognize him.”
Allegedly, the 1st Respondent was told by the 2nd Respondent not to worry as he knew how to handle the case. Thus, the 1st Respondent never went to where the man who brought the letter was standing. According to the 1st Respondent –
The Chief Security Officer and the Security Officer went to the place where the young man who brought the letter was waiting Mr. Rice and I then went back to our house. Basically I did not want to see the young man who brought the letter. He was sitting in the security booth. I would not recognise him. The security booth is in the compound not along the express way.
Again, under cross examination by Adekale, Esq. the 1st Respondent, stated thus –
“I cannot say if it was the plaintiff that brought the letter that day. I cannot recognise him.”
However, in contradistinction to the testimony of the 1st Respondent, the DW1, Ahmed Momoh, told the court that –
The plaintiff was the man who claimed to be Dr. Osunbor.
I asked him to wait and I collected the letter from him. I phoned 1st defendant, 1st defendant told me he was coming, I should collect the letter. 1st defendant came in company of Mr. Rice, a staff now retired. They came to the gate and 1st defendant asked me to open the gate for the plaintiff (Dr. Osunbor) and he came in. As I opened the gate for plaintiff, I gave the letter to 1st defendant. They opened the letter there and were arguing among themselves i.e. 1st defendant, plaintiff and Mr. Rice. I sensed a problem and sent for the Chief Security Officer…
Most undoubtedly, the contradictions inherent in the testimonies of the 1st Respondent and DW1 are not merely trivial. Indeed, they are material contradictions. The evidence of the Respondents is at variance with the pleadings thereof, most especially with particular regard to the identity of the Appellant. And it’s a trite and well settled doctrine, that evidence that is so manifestly at variance with the pleadings of a party goes to no issue, thus ought to be discountenanced by the court. See ARJAY LTD v. AIRLINE MANAGEMENT LTD (2003) 108 LRCN 1173 @ 1795; JOLA YEMI v. ALAOYE (2004) 118 LRCN 3942 @ 3957.

It’s equally the law, that where the evidence adduced by a party’s witnesses are apparently at variance or in conflict, the court is precluded from picking and choosing which of the witnesses to believe or otherwise. See AJUDUA v. NWOGU (No. 2) (2004) 16 NWLR (Pt. 898) 82.
In my considered view, there is every cogent reason for me to hold that neither the 1st Respondent, nor the DW1 could rightly be said to be witnesses of truth. By and large, the testimonies of both witnesses are, to say the least, very questionable. Thus, I think there is every credible reason for me to hold, at this point in time, that the answer to the second issue is in the positive, and same is resolved in favour of the Appellant.
Hence, having resolved each of the two issues in favour of the Appellants, I have no hesitation whatsoever in coming to the inevitable conclusion, to the effect that the appeal succeeds in part regarding the issues of malicious prosecution, and unlawful arrest and detention and it’s so allowed by me.
CONSEQUENTIAL ORDERS
Having allowed the appeal with particular regard to the issues of malicious prosecution and unlawful arrest and detention, I have deemed it imperative to order as follows:
1. That the Respondents shall pay to the Appellant the sum of N5,000,000.00 (Five Million Naira) only, being general damages for malicious prosecution, unlawful arrest and detention of the Appellant.
2. That the Respondents shall pay to the Appellant the sum of N50,000.00 (Fifty Thousand Naira) only, being special damages regarding the legal fees paid by the Appellant to the legal practitioner that defended him at the said Magistrate’s Court Irrua in Criminal Charge No. MCI/177/2000.
3. That the Respondents shall pay the sum of N50,000.00 (Fifty Thousand Naira) only as costs to the Appellant.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, JCA. I am in complete agreement with his Lordship that this appeal be partly allowed. I will add a few words.
The appellant stood in front of the premises of 3rd Respondent on 10/12/2000 looking for public transportation back to Lagos. He was arrested and beaten by 1st and 2nd Respondents who were agents and servants of the 3rd Respondent. He was arrested for having previously delivered a letter to the premises and having introduced himself as Dr. Osunbor. He was handed over to the police. After investigation nothing incriminating was found at his home or his person.
The letter allegedly dropped by the appellant was a letter categorized as “fraudulent”. At the trial none of the Respondents’ witnesses identified him as the one who dropped the letter. The evidence of the police – P.W.3 at the trial was that the police wanted to release the appellant, but the Respondents threatened to write a petition against the police officers and the police consequently charged the appellant to court after he was detained for several days.
The appellant was discharged and acquitted in charge No. MCL/117/2000 by the Magistrates’ Court. Hence the action for malicious prosecution brought against the Respondents (Defendants) by the appellant (plaintiff) at the trial court.
For a successful prosecution of the tort of malicious prosecution to succeed, all the four ingredients of the tort must be proved by the claimant. They are –
1. That the Plaintiff was prosecuted by the Defendant in that there must be clear evidence that the defendant set in motion the machinery of criminal justice which led to a criminal charge against the plaintiff.
2. That as a result of the complaint of criminal activities by the defendant, the plaintiff was charged to court, tried by a court of competent jurisdiction and was discharged and acquitted.
3. That the prosecution was completely without reasonable or probable cause.
4. That the prosecution was as a result of malice by the defendant against the plaintiff.
See the cases of Co-operative and Commerce Bank v. Godwin Odogwu (1990) 3 NWLR (Pt. 140) Pg. 646; Alhaji Tsoho Musa v. Salau Yusuf (2006) 6 NW1R Pt. 977, Pg. 454; Balogun v. Amubikahun (1989) 3 NWLR Pt. 107, pg. 18 at pg.27.
It is instructive to note that in this case the Respondents did not know the appellant before he was arrested as the person who came to drop a “fraudulent” letter at the company. “Malice” in this regard was defined by Niki Tobi, JCA (as he then was) in Ojo v. Okitipupa Oil Palm Plc (2001) 9 NWLR (Pt. 719) at pg. 696 as the wish or desire to hurt someone. Malice can therefore be inferred and established against the defendant in the tort of malicious prosecution when the complaint pressed against the plaintiff was carelessly and recklessly made and where the defendant who instigated the prosecution did not believe in the truthfulness of the complaint. In this case on appeal, from the records of the trial court, none of the defence witnesses could say categorically that it was the appellant who dropped the letter – Exhibit H at the security gate of the premises of 3rd Respondent. The evidence of PW3 – the police prosecutor to the effect that the Respondent insisted on the prosecution of the appellant because they wanted to use him as an example to others who attempt to defraud officers of the company was most damaging. It is obvious that the Respondents actively instigated the prosecution of the appellant and are thus liable for the tort of malicious prosecution.
I am of the view that the appellant proved on the preponderance of evidence that indeed the Respondents with reckless disregard for his proclaimed innocence maliciously instigated and insisted on a criminal prosecution against the appellant. I am in complete agreement with the erudite and exhaustive reasoning of my learned brother in the lead judgment. I adopt all the consequential orders as mine. The appeal is partially allowed.

TOM SHAIBU YAKUBU, J.C.A.: I had the privilege of a preview of the judgment prepared and just delivered by my learned brother IBRAHIM MOHAMMED MUSA SAULAWA, JCA.
I am in complete agreement with the well articulated reasoning and conclusion that the appeal is not lacking in merit. I am only adding few words in support of the leading judgment. The facts in the present case are well recapitulated by my Lord in the leading judgment, hence I need not rehash them again.
It is not in doubt that every citizen has a duty to report a suspected criminal offence to the police for investigation and apprehension. Therefore an action for false imprisonment does not lie against the person who merely gives an information to the police upon which the latter on their own initiative or discretion arrests and detains the suspect. Bank of West Africa Ltd v. Odiatu (1956) LLR 48.

A malicious prosecution ensues where it is shown that a person who, after causing the arrest and detention of a suspect, further instigates the police to prosecute the suspect in a court of law. Hence, it is the instigation by the police informant to the effect that the suspect must be prosecuted, that shows the police informant as having over stepped his boundary, and he will be liable at the action of the suspect who was tried, discharged and acquitted of the said criminal offence by a competent court with jurisdiction to try that offence, in the tort of malicious prosecution. Mandilas & Karaberies Ltd. v. Akpena (1959) 1 NWLR 199 SC.
Therefore, the person who actively instigates or is instrumental to the tort of malicious prosecution of another person becomes liable to the action of that other person. Onyedinma v. Nnite (1997) 3 NWLR (Pt. 493) 33 at 346; Abdulahi v. Raji (1998) 1 NWIR (Pt. 534) 481 at 492; Iwunwah v. Iwunwah (1999) 13 NWLR (Pt. 635) 425; Afribank Nig. Plc v. Sylvester Onyima & Anor (2004) 2 NWLR (Pt. 858) 654.
Therefore, just as it is in the tort of unlawful or false imprisonment, so also it is in the tort of malicious prosecution, that malice, is not considered by the law in the sense of hatred or spite against the suspect by the police informant, but in the sense of the latter being an instigator that the suspect must be prosecuted, was a actuated by improper motive or animus malus or in the sense of a wrongful act which was intentionally done by the said police informant/instigator of the malicious prosecution. Payin v. Aliuah (1953) 14 WACA 267; Okonkwo v. Ogbogu (1996) 5 NWLR (Pt. 449) 420 at 433, SC; (1997) 37 LRCN 580 at 600.
In an action for malicious prosecution, the plaintiff must plead and show by evidence that he was prosecuted by the defendant. In this regard, it must be shown clearly that the defendant set in motion against the plaintiff the law leading to a criminal charge. Secondly, as a result of the prosecution aforementioned the plaintiff was discharged and acquitted, in short that the prosecution was determined in the plaintiff’s favour. Thirdly, the plaintiff must plead and satisfy the court by evidence that the prosecution by the defendant was completely without reasonable and probable cause. Finally, that the prosecution was as a result of malice by the defendant against the plaintiff. All the four elements above must be present for a successful action for malicious prosecution, and the onus is always on the plaintiff to prove each and every one of them. To prosecute, in essence, is to set in motion the law thereby an appeal is made to some person with judicial authority with regard to the matter in question and to be liable for malicious prosecution, a person must be actively instrumental in setting the law in motion. Merely giving information to the Police is not enough; that at best may lead to an action for false imprisonment if the police act on the information and make an arrest and prosecute unsuccessfully.
In Hicks v. Faukner (1878) 8 Q.B.D. 167 at p. 171 reasonable and probable cause was defined as follows:
“An honest belief in the guilt of the accused based upon a full conviction founded upon reasonable ground of the existence of a state of circumstances which assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed”.
In Balogun v. Amubikahu (1989) 3 NWLR (Pt. 107) p. 18 at p. 27 Belgore, JSC observed:
‘The reasonable and probable cause to my mind, entails the defendant having in his possession as a reasonable and sane person, a set of facts which to an ordinary man would lead to the conclusion that the plaintiff has committed a criminal offence. The belief in the criminal culpability of the plaintiff must be honest, based on full conviction, founded upon reasonable grounds in relation to a set of facts and circumstances which if true would lead every reasonable person to believe the plaintiff has committed an offence.
The set of facts and circumstances must lead a prudent man to the conclusion that the plaintiff is probably guilty of the offence he is accused of committing. (Harriman v. Swith (1938) A.C. 305.”
Further see Ahmed Alhadi v. Ibrahima Allie (1956) 8 WACA 325.
In the circumstances of the present case, it is glaring that the prosecution of the appellant was at the instigation of the police to do so, by the respondents, when the police per the evidence of PW3, was not willing to prosecute the appellant because the police did not find any reasonable cause to do so.
According to PW3, “The Chief Security Officer told me that they want the plaintiff used a (sic: as) a lesson for others as fraudsters having been visiting the company of late and I should charge him to court. Right from the date the case was reported the Chief Security Officer of 3rd Defendant had been pressing me that they want the case charged to court.” So, the respondents were the minds and hands behind the scene in the prosecution of the appellant.
It is for this and the fuller reasons contained in the leading judgment that I, too allow the appeal. l, abide by the consequential orders plus that as to costs contained in the leading judgment, accordingly.

Appearances

O. IrehoubudeFor Appellant

AND

Mat. I. Enedion Esq. with
Robinson, Imade Esq. and
Miss Blessing EgbezienFor Respondent