FRANCIS UGBE v. GEORGE CHUKWUSA & ORS (2014)

FRANCIS UGBE v. GEORGE CHUKWUSA & ORS

(2014)LCN/7352(CA)

In The Court of Appeal of Nigeria

On Monday, the 7th day of July, 2014

CA/B/362/2009

RATIO

COURT: RULES OF COURT; THE PURPOSE OF RULES OF COURT AND WHETHER THEY ARE MADE TO BE OBEYED

Let me state it clearly that Rules of Court are in place to serve a purpose, and must be complied with and should not be treated with levity. Litigants and the Court are under this duty. In Ukangwu v. Pitt (2008) 9 NWLR Pt 1093 Pg 583 at Pg 592, Mshelia JCA held: “Rules of Court are made to be obeyed, and any party who deliberately ignores Rules of Court does so at his own peril”. See also Adehi v. Atego (1995) 5 NWLR Pt 398 Pg 656, 7UP Bottling Company Limited v. Abiola & Sons (NIG) Ltd 1995 3 NWLR pt 383 pg 257. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

APPEAL: ISSUES FOR DETERMINATION; WHETHER APPEALS ARE HEARD BY THE APPELLATE COURT ON BRIEF OF ARGUMENT WHEREIN ISSUES ARE RAISED FROM THE GROUNDS OF APPEAL AND THE PURPOSE OF ISSUE FOR DETERMINATION

It is now well settled that appeals are heard by the appellate court on brief of argument wherein issues are raised from the grounds of appeal. See Koya v. U.B.A (1997) 1 SCNJ 1, (1997) 1 NWLR PT 481 Pg 251, UAC Nigeria Ltd v M.O Fasheitan & Anor (1998) 7 SCNJ 179, (1998) 11 NWLR PT 573 Pg 179, Shitta – Bay v AGF (1998) 10 NWLR Pt 570 Pg 392. The purpose of an issue for determination is to focus the attention of the court so as to enable it to determine the matter in controversy one way or another. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

TORT: TORT OF MALICIOUS PROSECUTION; WHAT IS A MALICIOUS PROSECUTION AND THE INGREDIENTS THAT MUST BE ESTABLISHED TO PROVE MALICIOUS PROSECUTION

It is trite that a malicious prosecution is a tort or a civil wrong which enables a person who is the subject of groundless and unjustified court proceedings to seek a civil claim for damages against his prosecutor.

The respondents’ counsel rightly submitted that there are four ingredients that must be established to prove malicious prosecution. These four elements must be present for a successful action for malicious prosecution and the onus is on the plaintiff to prove each of them. The elements are itemized thus:

That the defendant put the machinery of prosecution in motion:
That as a result of the prosecution aforementioned the plaintiff was discharged and acquitted i.e. determined in the favour of the accused:

iii. That the defendant has no reasonable cause/probable cause to prosecute the accused:

That the prosecution is as a result of malice

See Barau v Chaba (1995) 1 NWLR Pt 371 at Pg 357, Bayol v Ahemba (1992) 8 NWLR Pt 257 Pg 104 at Pg 109, Ejikeme v Nwosu (2002) 3 NWLR Pt 754 Pg 356 at Pg 370-371.

What the above clearly states is that there must be proof of an absence of reasonable and probable cause for commencing the proceedings and the proof of an improper purpose or motive which involves an abuse or perversion of the system of criminal justice. That the prosecution is actuated by malice and entirely undertaken against a person without any reasonable cause. See Chief Oyelakin V. Alhaji Busari Ambikahun (1989) 3 NWLR Pt 1077 Pg 26, Horst Sommer & 2 Ors V. Federal Housing Authority (1992) 1 SCNJ 73 at Pg 80 per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF THE TRIAL COURT UNLESS IT IS PERVERSE

It is a settled position of the law that an appellate court will not disturb the finding made by a trial court unless on the ground that the finding is either perverse in law or fact and has occasioned gross miscarriage of justice. See T.S.A. Industries LTD V. Kema Investment LTD (2006) 2 NWLR Pt 964 Pg 1, Agbomej Bakare (1998) 9 NWLR Pt 564 pg 1. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

Between

FRANCIS UGBE – Appellant(s)

AND

1. GEORGE CHUKWUSA

2. CLARA OBADONI

3. CHIEF STEPHEN ONAIJAIFE

4. CHIEF ISAAC OSUYA

5. CHIEF NWAWENE ENUNEKU

6. CHIEF JOHNSON EBOH

7. CHIEF EDWIN ISHIEKWENE

8. CHIEF JOHN OGBOLU AND ORS. – Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Delta State, Asaba Judicial Division delivered by Hon. Justice S.C. Oseji, on the 14/7/09 wherein the learned trial Judge dismissed the claims of the appellant in its entirety for lack of merit. The following are the facts that led to this appeal:

This was an action for malicious prosecution, defamation of character, illegal arrest and malicious detention against the respondents. The appellant stated that between 1995 and 1997 he was arrested 19 times by the police from SIIB AND S.I.B Asaba and that the arrest and detention were at the instance of the respondents. The appellant was eventually charged for the offence of conspiracy, stealing, forgery and official corruption in 1995 in charge NO. HCK/4C/95, but was discharged and acquitted on the 4/5/2000. Upon the appellant’s acquittal he wrote an official letter to the Okpala-Uku of Umukwata informing him of the development and subsequently instituted this action against the respondents.

The Appellant commenced the action on the 12/7/2000 by issuing a writ of summons against 109 respondents. The appellant claimed against the respondents jointly and severally at paragraph 5 endorsed on the writ as follows:

‘5. The plaintiff claim against the defendants jointly and severally is for the sum of N50 million being general damages for malicious prosecution incitement of riotous mob actions against the plaintiff, attempting to set ablaze the plaintiffs dwelling house, ostracizing the plaintiff and defaming the character of the plaintiff in two separate riotous processions singing defamatory and war songs with the plaintiff’s name, using a town crier to sanction the plaintiff, harassing the plaintiff with police, making false arrests and detentions, writing malicious and frivolous petitions against the plaintiff to the Ministry of Education office, Kwale and the police through V.N Adaikpo Esq falsely accusing the plaintiff of conspiracy, stealing, forgery and official corruption sometime in 1994.

The appellant testified in proof of his claims and called no other witness, while the 1st respondent testified in the defence of other defendants. In a reserved judgment, the learned trial judge dismissed the Appellant’s claims as lacking in merit.

The appellant not satisfied with that decision has appealed to this court. The Appellant filed a Notice of Appeal on the 11/8/09 with four grounds of Appeal. The Appellant’s brief of argument is dated 16/11/09 filed on the 2/5/13. The Respondents’ brief of argument is dated 13/12/09 filed 22/5/13 and the appellant’s reply brief of argument is dated 7/12/12 filed on 14/5/14.

It is noteworthy to state here that at the hearing of this appeal on the 19/5/14 the Respondents’ Counsel argued that since the appellant had filed its appellant’s reply brief more than a year after the last respondents brief same should be discountenanced.

Let us look at the relevant provisions of the Court of Appeal rules made pursuant to the Court of Appeal Act – which is an Act of the National Assembly.

Order 18 Rule 5 of the 2011 rules provides as follows:

“The appellant may also, if necessary, within fourteen days of the service on him of the respondent’s brief, file and serve or cause to be served on the respondent a reply brief which shall deal with all new points arising from the respondent’s brief”. (Underlining mine)

Permit me to set out order 18 Rule 1 pursuant to which rule 5 was made:

“This order shall apply to all appeals coming from any court or tribunal from which an appeal lies to this court”.

Thus the rules of court envisages that no matter what court an appeal comes from, the appellant should file his reply to respondent brief 14 days after he was served, which was clearly not done in this case.

“Rules of Court are made to be obeyed, and any party who deliberately ignores Rules of Court does so at his own peril”.

See also Adehi v. Atego (1995) 5 NWLR Pt 398 Pg 656, 7UP Bottling Company Limited v. Abiola & Sons (NIG) Ltd 1995 3 NWLR pt 383 pg 257.

However against the backdrop of what I have stated above, rules of court are made to guide the court in the administration of justice. The reply brief was filed a year outside the period provided by the rules and in default of filing fees. No attempt was made during the hearing by the Appellant’s counsel to regularize the brief. The court is not bound to draw attention of an erring party to the error of filing out of time. However the court has the discretion during hearing to cure the irregularity where an erring party makes the appropriate application. See Union Bank v. Odusote (1995) 12 SCNJ 175, (1995) 9 N.W.L.R pt 421 pg.558. Default fees for failure to file within time had not been paid. Suffice it to say that the overall impression at the hearing of the appeal was one of incompetence in handling this appeal. The appellant’s reply brief filed on 14/5/14 is grossly incompetent and is hereby stuck out. See Alimin Akanbi Dada v Chief Jonathan Dosunmu (2006) 9 SCNJ 31, (2006) 18 NWLR Pt. 1010 pg 134.

In the brief settled by C.O Okwelum ESQ, the Appellant’s counsel raised two issues for determination. The issues read as follows:

1. Whether the appellant failed to tender the petition of V.N Adaikpo Esq. dated 26th June 1995, which was tendered and marked as “Exhibit G”, and if so whether the failure is fatal to the case of the appellant.

2. Whether the appellant made out a claim of malicious prosecution.

In the brief settled by Cliff I. Ndego Esq., counsel for the Respondents also formulated two issues for determination. The issues read as follows:

1. Whether the appellant tendered as exhibit the alleged petition written for and on behalf of the 1st, 2nd, 4th-10th respondents, during the trial in suit HCK/24/2000.

2. Whether the trial court was not right in dismissing the claims of the plaintiff/appellant.

Appellant’s and Respondents’ counsel issues are the same. I shall adopt the issues as formulated by the Appellant for the determination of this appeal. There is no doubt that the answers to issue one would largely determine issue two in this appeal.

Issue 1

Whether the appellant failed to tender the petition of V.N Adaikpo Esq dated 26th June 1995, which was tendered and marked as “Exhibit G”, and if so whether the failure is fatal to the case of the appellant.

Learned Appellant’s counsel submitted that to underscore the incorrectness of the record of proceedings of 27/2/2003 which the appellant’s positively challenges before this court, the list of Exhibits at page iii of the record of appeal shows at serial No. 32 that 2 Exhibit “G”-letter addressed to Mr. F.E Ugbe dated 26th June 1995 and V.N Adaikpo’s petition dated 25th June, 1995 were tendered. He submitted that a miscarriage of justice was occasioned when the learned trial judge while making the finding on the claim for malicious prosecution turned around entirely and pointed that the said petition was not tendered during trial.

Counsel argued that this court could set aside a judgment if the trial court failed to consider an exhibit, which was duly tendered, but which the trial court erroneously held was not tendered particularly if the judgment is slewed against the exhibit purportedly not tendered, and further argued that the trial court erred and misdirected itself when it invoked the provisions of section 149(d) of the Evidence Act against the appellant when in fact the document was tendered in evidence. The said evidence is Exhibit G – V.N Adaikpo’s petition dated 26th June 1995. He urged this court to reverse the judgment of the trial court and grant the reliefs sought. He cited Oyinloye V. Esinkin (1999) 70 LRCN 2068 at 2082- 2083, Kate & Anor V. Jibowe & Anor (1972) 1 All NLR Pt 2 Pg 180 at Pg 192, Dahiru Saude V. Alhaji Haliru Abdulahi (1989) 7 SCNJ 216 at 230-231, Okochi V. Amimkwoi (2004) 114 LRCN 2924 at Pg 2938.

Respondent’s Counsel on this issue argued that the alleged petition written by Barrister V.O Adaikpo for and of behalf of 1st, 2nd, 4th -108th respondents was never tendered as an exhibit during trial, as the only exhibit G on the record is the letter written by Obinomba United, Lagos branch to the appellant. He argued that in charge HCK/4C/95, the said petition by Barrister V.W Adaikpo was tendered in that criminal proceedings as exhibit G. He further argued that it was a shock and great mischievousness on the part of the appellant’s counsel who acted as counsel in both suits to try to juxtapose exhibit G in HCK/4C/95 into HCK/24/2000, as this was a misrepresentation of facts intended to deceive this court.

Counsel contended that there exists no relationship between exhibit G in HCK/4C/95 and exhibit G in HCK/4C/95 to warrant both documents being tendered as exhibit G in HCK/24/2000, and contended that one document would have been marked exhibit G1 and the other Exhibit G2 or as the case may be if there had been two documents. He further contended that the Respondents’ counsel had in his final written address (as the defendants’ counsel) dated the 30/3/2009 at the court below, submitted that the purported letter written by Barrister Adaikpo was not tendered, to which the appellant’s did not file a further reply or reply on points of law to refute same.

Respondents’ counsel argued that records of proceedings are the only indication of what took place in court. He cited Fawehinmi Const. Co. Ltd v. Obafemi Awolowo University (1998) 5 SC, Ogidi v State (2005) 1 SC Pt 11 Pg 98 at Pg 107. He further argued that where a party challenges record of proceedings it behoves on the appellant’s counsel to apply and obtain a supplementary record of proceedings containing these important documents to be placed before the court. He cited Amadi v Chinda & ors (2009) 4-5 SC Pt 11 Pg 1 at Pg 11.

Resolution of issue 1

The inescapable position of the law is that parties are bound by the record of the court. An appellate court is also bound by the record of proceedings before it and cannot depart from it on the ipsi dixit of counsel or on speculation. As rightly held by the respondents counsel, records of proceedings are the only indication of what took place in a court, it is indeed like minutes of a meeting, it is always the final reference of events, step by step of what took place in a court. See Sommer v. FHA (1992) 1 NWLR Pt 219 at Pg 548: Olaniyan v Oyewole (2008) 5 NWLR Pt 1079 Pg 114 at Pg 132.

However, as I will expatiate fully anon, it is not in all circumstances that the appellate court must abide by the records of proceedings. It is however my humble view that Supreme Court has undoubtedly decided in the case of Sommer V Federal Housing Estate (supra) that the record of proceedings can be challenged. See also Gov. Kwara State V Lafiagi (2005) 5 NWLR Pt 917 Pg 139 at Pg 155-156.

Let us look closely at the circumstances of this case to glean what actually happened on the 27/2/2003 at the trial court. This can be found at Pages 44-46 of the Record. The pertinent portion is set out below:

“Case for the Plaintiff continues.

Plaintiff reminded of his previous Oath on 4/11/2002

The Obinomba United Lagos Branch wrote me a letter forcing me out of my residence and my office as Headmaster of my school.

This is the letter written by me.

OKWELUM- seeks to tender the letter

ACHUGBUE- did not object

COURT: The letter dated 26/6/95 is admitted as Exhibit “G”.

The four signatories to the letter are Defendants in this suit. I know one John E. Onojafe. He wrote me a letter too. This is the letter written to me by the said John (43rd Defendant)

OKWELUM- seeks to tender the letter

ACHUGBUE- did not object

COURT: The said letter written to plaintiff by 43rd Defendant is admitted as Exhibit “H”.

I KNOW THE 13th, 14th and 62nd defendants. They wrote fictitious and malicious petition against me to the ministry of Education. This is a copy of the petition.

OKWELUM- seeks to tender the letter

ACHUGBUE- did not object.

COURT: The copy of the said petition dated 29/11/95 is admitted as Exhibit “J”.

I was offered a job in CGG by the State Government but as soon as I commenced the job, the Defendant wrote against me to the Military Administrator as a result of which I lost the job.

This is the letter of appointment given to me.

OKWELUM- seeks to tender the letter

ACHUGBUE- did not object

COURT: The copy of the letter dated 10/3/98 is admitted as Exhibit “K”.

In the course of my ordeal, I was invited by the Local Government Education Authority, Kwale. This is one of the invitation letters to me.

OKWELUM- seeks to tender the letter.

ACHUGBUE- did not object

COURT: The letter of invitation to a meeting given to the plaintiff is admitted as Exhibit “L”.

On 18/11/96 I had a cause to write to the Area Commander, Delta North Police command over threat to my life and request for police protection. This is a copy of the letter I wrote.

OKWELUM- seeks to tender the letter

ACHUGBUE- did not object.

COURT: The letter written by the plaintiff to the Police Area Commander dated 18/11/96 is admitted as Exhibit “M”.

I also had cause to write to the Area Commander in 1995.

This is a copy of the letter.

OKWELUM- seeks to tender the letter.

ACHUGBUE- did not object.

COURT: The letter of petition to OC SIB, dated 24/1/96 is admitted and marked Exhibit “F”.

At this stage Okwelum asks for an adjournment.

Achugbue did not object.

COURT: This case is adjourned to 26/11/02 for continuation.

(Sgd) S. C. OSEJI

JUDGE

4/10/2002.”

Let me reiterate that an appellant court has no jurisdiction to read into the record what is not there as it equally has no jurisdiction to read out of the record what is there. An appellant court must read the record in the exact content and interpret it. See Chief Fubara & Ors v Chief Minimah & Ors (2003) 5 SCNJ 142 at 168, Orugbu & Anor v. Bulara Una & 10 Ors (2002) 9 SCNJ 12 at 29-30.

However it is apt to point out that where a counsel to a party seriously challenges the record of proceedings of court, he should show this by swearing to an affidavit, annex as an exhibit his own handwritten proceedings of the particular day and serve it on the judge and/or the registry of the court concerned for his reaction to the facts therein and to be contrasted with that of the lower court by the appellant court as well as to serve the counsel on the other side. See Gonzee Nigeria Ltd v Nigeria Educational Research and Development Council & ors (2005) ALL FWLR Pt 274 Pg 235 at 245, United Bank For Africa Plc v. Samuel Igelle Ujor (2001) 10 NWLR Pt 722 Pg 89. I have thoroughly searched the record and all documents emanating from the trial court, this procedure was not complied with by appellant’s counsel. An appellate court cannot accept hook, line and sinker the story of counselor based on speculation and who refused to follow due process. Without any supplementary record of proceedings or the reaction of the trial court to the challenge of the record of proceedings, such proceedings having being challenged with the handwritten proceedings of appellant’s counsel’s account, we cannot depart from the record of proceedings.

Let me also consider the pungent argument of learned respondents counsel. A considered look at the records of 27/2/2003, records on shows clearly that all documents tended as exhibits were given their own separate alphabet. What relationship did the letter marked as exhibit G on record, which is the letter written by Obinomba United Lagos, Branch to the appellant have in relationship with the letter written by Barrister Adaikpo to the Area commander, Delta State to warrant it to be tendered as the same exhibit G, departing from the obvious trend as can be deduced from the record. The learned trial judge would have at least tried to differentiate the two exhibits “G” by tendering one as exhibit G1 and G2 for clearer identification. The story of the appellant is solely to throw dust into the eyes of this court, needless to say, this story cannot fly in the face of the evidence before this court.

Furthermore, to buttress my point, and in agreement with the respondents counsel argument, the respondents had in its defendants’ written address dated 30/3/2009 at page 64 of the record pointed out that the letter purportedly written by Barrister Adaikpo was not tendered, why did the appellant counsel not tackle this fact in issue when he clearly had the opportunity to? Respondent counsel in his written address at page 64 of the record stated that:

“The purported letter written by Barrister Adaikpo for the defendants was not tendered nor any other complainant written by the defendants, if any”.

I am of the firm and considered opinion that had appellant’s counsel responded to the issue as raised by the respondents’ counsel during the adoption of written address at the trial court, the issue would have been cleared. Counsel had the evidential burden to dispute these facts at the earliest opportunity, having not done so when the opportunity availed, it is quite late to wake up now in the day.

I have gone through the record of proceedings, and given serious consideration to the totality of evidence before me, I am of the firm view that there is no evidence or proof that the letter written by Barrister Adaikpo was tendered as an exhibit at the trial court. The argument in aid of this issue by the appellant’s counsel is completely misconceived, more so, as counsel did not claim he was misled by the circumstances of the facts of this case.

I am therefore of the considered opinion and in total agreement that the learned trial judge was right in law when he held at page 87 of the record:

“In the circumstances, I am of the view that this is a clear case where the provisions of section 149(d) of the Evidence Act will apply in which case it was taken that such document which virtually formed the bedrock of the plaintiffs claim was not tendered in evidence by him because it would, if brought in be adverse to his case. See Okiki V Legal Practitioners Disciplinary Committee (2005) All FWLR Pt 2288 Pg 1054 @ 1080, Nigerian Advertising Service Ltd V. United Bank for Africa Plc. (2005) ALL FWLR Pt 284 pg 275.”

This issue is resolved against the appellant.

Issue 2

Whether the appellant made out a claim of malicious prosecution.

Now to the grit of the appeal, as it is my humble view that this is the issue on which this appeal turns. Astonishingly appellant’s counsel who raised this issue as issue two in the Appellant’s brief never argued this issue before this court. Instead appellant’s counsel went on a wild goose chase over an exhibit not tendered at the trial. It is now well settled that appeals are heard by the appellate court on brief of argument wherein issues are raised from the grounds of appeal. See Koya v. U.B.A (1997) 1 SCNJ 1, (1997) 1 NWLR PT 481 Pg 251, UAC Nigeria Ltd v M.O Fasheitan & Anor (1998) 7 SCNJ 179, (1998) 11 NWLR PT 573 Pg 179, Shitta – Bay v AGF (1998) 10 NWLR Pt 570 Pg 392. The purpose of an issue for determination is to focus the attention of the court so as to enable it to determine the matter in controversy one way or another.

It unravels the real bone of contention, and having not argued issue 2 it is deemed abandoned by the Appellant.

There is no doubt that having not argued the main issue in contention in the appellants brief, the issue is deemed abandoned. See Syvester Ibekendu v. Sylvester Ike (1993) 7 SCNJ 50, Ojo Eholor v Felicia Osayande (1992) 6 NWLR Pt 249 Pg 524. The actual of appellant’s brief settled by C.O Okelum Esq. comprised of two (2) pages to which counsel attached an affidavit. Since this is the penultimate court, if this court is found to be wrong in its reasoning that the second issue submitted was not argued by the appellant and has been abandoned, I feel that since the Respondent took the pains to argue the point, an opinion on the point would not be amiss. It would give the appellate court benefit of our reasoning on the issue.

Respondents’ counsel having set out the ingredients to prove in an action for malicious prosecution and citing in aid, Balogun V. Amubikahum (1989) 3 NWLR Pt 107 Pg 18 at Pg 26 argued that the appellant did not lead oral evidence that the respondents lodged to the police complaints of conspiracy, stealing, forgery and official corruption against the Appellant and he was charged in HCK/4C/95 because of these complaints and was discharged and acquitted on a no case submission. He argued that although the Appellant stated in his examination in chief that he was arrested by the police 19 times, he failed to establish that any of those times his arrest was in connection with his prosecution for conspiracy, stealing, forgery and official corruption. Worse still, the appellant did not tender the purported letter written to the Commissioner of Police of Delta State by Barrister Adaikpo on behalf of the Respondents and that the trial court was right to have invoked section 149(d) of the Evidence Act against the Appellant.

Respondents’ counsel submitted that Appellant did not lead evidence whatsoever that the respondents were actively instrumental in setting the law in motion for his prosecution, as mere giving of information to the police is not enough to support malicious prosecution. He cited Balogun V. Amubikahum (supra), Isheno v. Julius Berger PLC (2008) 2-3 SC Pt. 11 Pg 78 at Pg. 90.

Resolution of Issue 2

i. That the defendant put the machinery of prosecution in motion:

ii. That as a result of the prosecution aforementioned the plaintiff was discharged and acquitted i.e. determined in the favour of the accused:

iii. That the defendant has no reasonable cause/probable cause to prosecute the accused:

iv. That the prosecution is as a result of malice

See Barau v Chaba (1995) 1 NWLR Pt 371 at Pg 357, Bayol v Ahemba (1992) 8 NWLR Pt 257 Pg 104 at Pg 109, Ejikeme v Nwosu (2002) 3 NWLR Pt 754 Pg 356 at Pg 370-371.

A reading of the judgment of the trial court would show that his lordship had an excellent grasp of the law relating to malicious prosecution. His lordship in a displace of erudition stated at Pg 88-89 of the records as follows.

“In the absence of the said document it follows that there is no evidence before this court that the defendants put the machinery of prosecution in motion against the plaintiff.

On the second ingredients. It is not in doubt having regards to Exhibit ‘A’ that the plaintiff was prosecuted for a criminal charge in the High Court, kwale in charge No/HCK/4C/85 (THE STATE VS. FRANCIS UGBE & ANOR). The said exhibit ‘A’ is a ruling of the said Court delivered on 4/5/2000, wherein a submission of no case to answer was upheld and the accused person discharged under section 285 of the Criminal Procedure Law. By operation of law such discharge constitutes an acquittal or a discharge of the merit.

On the 3rd and 4th ingredients, having found there is no evidence to sustain the allegation that the defendants set the machinery of prosecution in motion against the plaintiff the issue of reasonable cause or malice can no longer arise. The petition of V.N Adiakpo to the commissioner of police supposedly written on behalf of the defendants and which accordingly to the plaintiff formed the basis for his prosecution in charge NO. HCK/4C/95 was not tendered in evidence and in the absence of any other proof it will be impossible to infer malice or absence of reasonable cause against the defendants. Learned counsel for the plaintiff had in his address referred to a record of proceedings in HCK/4C/95 to contend that it shows that on 29/6/95 a petition was written on behalf of the defendants by V.N Adiakpo and it led to the trial and discharge of the plaintiff on 4/5/2000.

Unfortunately, there is no such record of evidence before this court. What is in evidence as Exhibit “A” is the ruling of the High Court Kwale on a no case submission in charge No. HCK/4C/95 and that is what this court worked on as it is not its duty to inquire into the content of a document that is not before it.”

It is patent from the judgment that the lower court clearly considered the case of the appellant vis-a-vis that of the respondents before arriving at its conclusion. From the facts of the instant case, the totality of the evidence led, I have been unable to agree that the appellant established any of the criteria to prove malicious prosecution on a balance of probability. The trial court was right when held on page 89 of the record thus:

“As earlier stated, for a claim for malicious prosecution to succeed, all the four ingredients must be proved concurrently. In this case the second ingredient was proved by the plaintiff out of the four. I therefore find that the claim of malicious prosecution by the plaintiff has not been proved.”

This issue is therefore resolved against the appellant.

In the circumstances, the appeal is wholly without merit and is hereby dismissed. The judgment of Hon. Justice Oseji delivered on 14/7/09 in suit no HCK/24/2000 is hereby affirmed. Appeal Dismissed. I award N50,000.00 cost to the respondents collectively against the Appellant.

HAMMA AKAWU BARKA, J.C.A.: I have had a preview of the lead judgment of my learned brother HELEN MORONKEJI OGUNWUMIJU JCA, in this appeal. I fully agree with all the reasoning and conclusion set out therein. I adopt them as mine. I too would dismiss this appeal for totally being devoid of merit. I abide by all the consequential orders of my learned brother.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I had the opportunity of reading in draft the lead judgment just delivered by my Lord, Helen Moronkeji Ogunwumiju, JCA. I fully agree that the appeal lacks substance and merit and should be dismissed. I only wish to add that from the Records, the Appellants counsel did not cover himself in glory in the manner he conducted the case, both at the lower court and before this court. His pedestrian effort to obfuscate issues by raising the question of a document which was never tendered nor admitted in evidence was a non-starter as the Records of Appeal did not bear out his assertion. Accordingly, I also dismiss the appeal and hereby affirm the judgment of the lower court in Suit No. HCK/24/2000 delivered on 14th July, 2009. I abide by the consequential orders made in the lead judgment.

Appearances

R.N Onyebuchi Mrs. Holds the brief of C.O. ONYEBUSHIFor Appellant

AND

C.I NDEGO ESQFor Respondent