NIG. BOTTLING CO. LTD v. ADIO (2020)

NIG. BOTTLING CO. LTD v. ADIO

(2020)LCN/14250(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Thursday, June 18, 2020

CA/K/25/2019

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

NIGERIA BOTTLING COMPANY LIMITED APPELLANT(S)

And

SULEIMAN TOYIN ADIO RESPONDENT(S)

RATIO

FACTORS TO BE SHOWN BY THE PLAINTIFF IN ORDER TO SUCCEED IN AN ACTION FOR MALICIOUS PROSECUTION

It is settled law that in order to succeed in an action for malicious prosecution the plaintiff must (1) plead and show by evidence that that he was prosecuted by the defendant. In this regard he must show that that the defendant set in motion the law that led to a criminal charge against him. (2) establish that the outcome of the prosecution against him was that he was discharged and acquitted. (3) plead and show by evidence that the prosecution by the defendant was completely without reasonable and probable cause. (4) establish that his prosecution was as a result of malice by the defendant against him. All these elements must co-exist for malicious prosecution to be established. See BALOGUN V. AMUBIKAHUN (1989) LPELR-725 (SC). Now, that the defendant set the law in motion against plaintiff means that the defendant actively instigated the actual prosecution of the plaintiff and not merely that the plaintiff made a report to the Police thereby leaving the matter to the discretion of the Police to decide whether it would prosecute or not. See BAYOL V. AHEMBA (1999) LPELR-761 (SC). PER DANIEL-KALIO, J.C.A.

WHEN IS THE DECISION OF THE COURT SAID TO BE PERVERSE

A decision is said to be perverse when (a) it runs counter to the evidence and the pleadings; or (b) where it has been shown that the trial Court took into account matters which it ought not to have taken into account or shut its eyes to the obvious and that this formed the basis of its decision; or (c) that it went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case; or (d) that the Court committed various errors that faulted its decision beyond redemption; or (e) when the circumstance of the finding of facts in the decision is most unreasonable. See FADLALLAH TEXTILES LTD & ANOR V. UNITY BANK (2015) LPELR- 25740 (CA). PER DANIEL-KALIO, J.C.A.

OBIETONBARA O. DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): The Respondent in this appeal SULEIMAN TOYIN ADIO filed an action against the Appellant the NIGERIAN BOTTLING COMPANY LIMITED before the National Industrial Court, Kaduna Division (the lower Court). His case before the lower Court as gathered from his Statement of Claim in summary, is that he was an employee of the Appellant. He was employed in 1998 and rose to the rank of Checker or Warehouse Technician. On 24/10/13, he checked goods that were being trucked out of the appellant company. He checked about ten trucks loaded with products of the Appellant that day only to be informed 30 minutes after carrying out the checks that one of the trucks was overloaded with 132 packs of a product. He was asked orally what he knew about the overload of the product in the truck. He did, only to be peremptorily issued with a letter of termination of his appointment the next day. He was not issued with any query before he was issued with the letter of termination of his appointment. It was his case that the termination of his appointment was unjust, and contrary to the conditions of employment,

contained in the Junior Staff Handbook i.e the Rules, Regulations and Conditions of Employment. Furthermore, it is his case that the Appellant caused his arraignment before a Magistrate Court where he was charged with offences that included negligent misconduct. However he was discharged and acquitted by the Magistrate. He claimed that by reason of the unjust termination of his appointment, he was denied several monetary entitlements due him. He therefore sought the following reliefs from the lower Court-
1. A declaration that the purported termination of the claimant’s employment by the defendant as contained in the letter of termination dated 25th October 2013 and his subsequent arrest and prosecution are rash, unfair, illegal, null and void and of no effect, and contrary to the provision of part 111 paragraphs 16 & 19 of page 27 of the defendant’s Junior Staff Handbook Rules, Regulations and Conditions of Employment of December 2000 that govern the employment of the claimant with the defendant.
2. An order of this honourable Court that the purported termination letter dated 25th October 2013 be converted forthwith to a voluntary resignation

from the defendant’s employment.
3. A declaration that the arrest and subsequent prosecution of the claimant before the Magistrate Court No. 14 Barnawa, Kaduna by the defendant was malicious and in total breach of the claimant’s fundamental right to dignity of the human person and personal liberty.
4. An Order of this honourable Court compelling the defendant to pay the claimant forthwith the unpaid and accrued salaries and entitlements for the months of November and December 2013, January to December 2014 and January 2015 respectively, in the total sum of N1,700,563.05 (One Million, Seven Hundred Thousand, Five Hundred and Sixty-Three Naira, Five Kobo)
5. An Order for the payment of N407,452.70 ( Four Hundred and Seven Thousand, Four Hundred and Fifty- Two Naira, Seventy Kobo) by the defendant, being the total sum of the claimant’s annual leave grant and 13th-month salary respectively, for years 2013 and 2014, and his 15th-year award.
6. An Order for the payment of N3, 315, 441. 28 ( Three Million, Three Hundred and Fifteen Thousand, Four Hundred and Forty-One Naira, Twenty-Eight Kobo) being the Claimant’s terminal/retirement benefits in

consonance with the defendant’s Junior Staff Handbook.
7. An Order of the Court awarding the sum of N50,000,000.00 ( Fifty Million Naira) only as general and exemplary damages against the defendant and in favor of the claimant for the wrongful termination, malicious prosecution, breach of fundamental right and injuries caused to his reputation.
8. An Order compelling the defendant to give to the claimant 37 cases of its products, being the claimant’s end of year cases awards for 2013 and 2014, and the 15th year case award in consonance with the defendant’s Junior Staff Handbook.
9. Cost of filing this suit.

The Appellant in its Statement of Defence at the lower Court while admitting paragraphs 2,3,5,6, 10 and 12 of the Statement of Claim of the Respondent and also partly admitting paragraph 9 and 11 of the said Statement of Claim, denied the rest of the averments in the Statement of Claim. It was averred by the Appellant that in terminating the appointment of the Respondent, it complied with the Junior Staff Handbook and therefore had no further obligation to the Respondent. The Appellant averred that it merely reported the Respondent to

the Police which then carried out an investigation and then charged the Respondent to Court.

After hearing the parties, the learned trial judge in his judgment at page 264- 282 and at page 337-338 of the Record of Appeal, held that the termination of the appointment of the Respondent was wrongful as it did not comply with his conditions of appointment. The learned Judge agreed with the Respondent’s Counsel that the effective date of the Respondent’s appointment was 18/8/14. He held that the Respondent’s terminal benefits should not be calculated based on a collective agreement but should be based on the total emoluments due the Respondent and that the Respondent having spent a minimum of 15 years in the Appellant’s employment was entitled to total emoluments as can be gathered from a combined reading of the provision of Part II, paragraph 6.2 (II) (d) and sub-paragraph (v) at pages 15-16 of Exhibit CW2. The emoluments the Respondent is entitled to the learned Judge held, comprise his Basic Salary, Rent allowance, Transport allowance and Meal subsidy. The learned judge further held that the Respondent is entitled to leave allowance for 2013 and 2014, long

service award in the sum of N35,000 and also to 37 crates of the Appellant’s products as well as a long service Certificate. The learned judge held that the internal company mechanisms should have been applied by the Appellant before the Respondent was reported to the Police. He held that the Respondent established his claim of malicious prosecution and false imprisonment and consequently awarded him the sum of N2,000,000.00 for malicious prosecution and false imprisonment.

Dissatisfied with the judgment, the Appellant appealed against it on eight grounds.

The parties exchanged Briefs of Argument. In the Appellant’s Brief of Argument settled by Abdulhafees D. Khalid, Esq. the Appellant distilled the following three issues for determination in this appeal, namely-
1. Whether the failure of the lower Court to notify the Appellant of the reviewed date of the judgment did not nullify the judgment of the lower Court.
2. Whether the lower Court was right and justified to have held that the valid date of the termination of the appointment of the Respondent was the date the respondent was paid ‘a month in lieu of notice’ and not the date his employment was

actually terminated; and
3. Whether the lower Court was right when it held that the Respondent made out a case of malicious prosecution against the Appellant.

The Respondent’s Brief of Argument was settled by A. D. Ahmed, Esq. The Respondent also raised three issues for the consideration of this Court in the determination of this appeal. The issues are-
1. Whether the Appellant maliciously put in motion the machineries that initiated the prosecution of the Respondent before the Magistrate Court, Barnawa, Kaduna;
2. Whether failure on the part of the Registry of the lower Court to efficiently discharge its duties can be visited on the Respondent; and
3. Whether payment of one month in lieu of Notice is a prerequisite to effective termination of employment.

After looking carefully at the issues formulated by the parties, I see only a cosmetic difference in the formulation of the issues. And those have to do with the numbering and wording of the issues and nothing really material. I will therefore consider the issues formulated by the Appellant.

On issue 1, the Appellant’s learned Counsel observed that on 2/11/17 when the

matter came up for adoption of final addresses of the parties as shown at page 255 of the Record of Appeal, the matter was adjourned to 18/12/17 for judgment but that on 15/12/17 the lower Court delivered judgment without the Appellant or its Counsel being in Court as can be seen at page 256 of the Record of Appeal. It was argued that there is nothing on record that indicates why the Appellant was not in Court and there is also nothing on record to indicate that the Appellant was given notice of the date that judgment was set to be delivered. Learned Counsel submitted that while it can be argued or suggested that the Respondent was notified of the date of judgment by some means, probably through electronic means, no such notification was given to the Appellant and there was no proof or mention of such notification to the lower Court before that Court proceeded to deliver its judgment on the date it did. Learned Counsel argued that notice of hearing is a sine qua non to the validity of any Court proceedings and same can only be dispensed with when the parties agree on the date a proceedings will hold or where they were present in Court when the Court gave the

date for the proceedings to hold. Learned Counsel submitted that service of a hearing notice is imperative even when the proceeding is just to read the judgment of Court. He cited the statement of Nweze JSC in the case of DARMA V. ECOBANK PLC (2017) ALL FWLR (Pt. 887) 124 at 154. Learned Counsel submitted that proceedings carried out in the absence of a party entitled to be notified will amount to an exercise in futility and that same will be null and void. He referred to FALADU V. KWOI (2003) 9 NWLR (Pt 826) 643 at 657; BADA V. ATUNBI (2012) 3 NWLR (Pt. 1287) p. 354. We were urged upon to set aside the judgment of the lower Court.

On this issue, the Respondent’s learned Counsel submitted that the lower Court by Order 47 (1) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 has the inherent power to shift the date of judgment either forward or backward and that it was pursuant to that power that the Respondent was electronically notified of the date of the judgment as the Appellant rightly pointed out in its Brief of Argument. It was submitted that by Order 34 (1) of the said National Industrial Court (Civil Procedure) Rules, the

directive of the lower Court to serve the Appellant with a hearing notice is the responsibility of the Registry of the lower Court to carry out and not that of the Respondent. Therefore he further submitted, assuming that the Appellant was not put on notice by the Registry of the lower Court, the fault of that failure is that of the Registry staff and same should not be visited on the Respondent. He cited CBN V. SCSBV (No. 2) (2015) 11 NWLR part 1469 page 1 at p. 22; GE INTERNATIONAL OPERATIONS (NIG) LTD V. Q OIL AND GAS SERVICES 10 NWLR (Pt. 1520) p. 304 at 330.

Now, it is the law that service of a hearing notice of a matter in Court is very critical to the validity of any Court proceedings in that matter. This is because when a party is not notified of the hearing of a matter that concerns him, he is blindsided and sidelined and is in no position to canvass his case or position on the matter. It is a well laid down position of the law that failure to give notice of proceedings to the opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void. This is so because the Court will have no jurisdiction to entertain it. See

HARUNA V. LADEINDE (1987) 4 NWLR (Pt. 67) p. 941. Now, it is the submission of the Appellant’s learned Counsel that the Appellant was not given any notification of the date that the judgment was to be delivered and that there was no proof of such notification before the lower Court before that Court proceeded to deliver its judgment. At page 256 of the Record of Appeal, S.A. Salmon Esq. is recorded as having appeared for the Claimant. With regard to the Defendant, the record at that page states: “No appearance for the Defendant”. The statement “no appearance for the Defendant” simply means that no Counsel appeared for the Defendant. Nothing more can be read into that statement. It certainly does not mean that the defendant was not served with a hearing notice. It is important to state that service or non-service of a hearing notice is a matter of fact and as such has to be proved by evidence. Address of learned counsel no matter how brilliant cannot make up for lack of evidence, neither can it be a substitute for evidence. It is trite law that where there is a dispute on the service of a Court process, the issue of service cannot be presumed or assumed.

It is a fact that must be clearly established by evidence. See ZAMOL MERCHANT & INVESTMENT LTD V. UNITY BANK (2015) LPELR- 40872 (CA); ANYOHA V. CHUKWU (2008) 4 NWLR (Pt. 1076); UNITED BANK FOR AFRICA PLC V. EFFIONG (2011) LPELR-8934 (CA). This Court cannot therefore presume or assume that the Appellant was not served with a hearing notice simply because learned counsel said so in his argument. If the Appellant is serious that it was not served, it should have established that fact by an affidavit. In the case of AHMED V AHMED & ORS (2013) LPELR- 21143 (SC) the Supreme Court held relating to service of hearing notice, that a bare denial will not amount to a good denial. Said the Supreme Court in that case “Such a denial would have no weight whatsoever. The defendant is expected to file an affidavit denying service”. Alternatively, a party can rely on an affidavit from the bailiff of Court indicating non-service of a hearing notice on that party as proof that it was not serviced with the hearing notice. In the absence of such proof of the fact of non-service of hearing notice, the Appellant would be leading the Court along the path of assumption or

presumption of non-service of the hearing notice. Such a path, the Court will not giddily follow. At any rate the delivery of a judgment without due notice of the delivery date to a party does not make the judgment one that is delivered without jurisdiction, nor is the judgment null and void. It may amount to a mere irregularity which has no effect on the substance of the judgment or jurisdiction of the Court. See CHIME & ORS V. CHIME & ORS (2001) LPELR – 24858(SC). Issue 1 is therefore resolved against the Appellant.

On issue 2 which is whether the lower Court was right and justified to have held that the valid date of termination of the appointment of the Respondent was the date the Respondent was paid a ‘month in lieu of notice’ and not the date his employment was actually terminated, it was submitted that it is trite that in a master-servant relationship, a willing servant cannot be imposed on an unwilling master. It was contended that the lower Court placed undue reliance on the case of OYELADE V. CENTRAL BANK OF NIGERIA (1977) 4 CCNC 685 and that of CHUKWUMAH V. SHELL PETROLEUM DEVELOPMENT CO. NIGERIA LTD (1993) 4 NWLR (Pt. 289) 512 SC

to the effect that the effective date of termination of the Respondent is the day on which the one month in lieu of notice was paid. It was contended that the position of the lower Court is not justified under the Master-Servant relationship. It was submitted that the ‘one month in lieu of notice’ contemplated by the relevant clause of the Respondent’s contract of service is the salary that the Respondent was due to earn in the month of November, 2013.

In his argument in response, the Respondent’s learned Counsel submitted that it is not contested that the Respondent’s ‘one month notice’ was paid in August, 2014. Learned Counsel referred to Part 111, Article 16 of the Junior Staff Handbook and contended that by the wording of the provision, the termination of the Respondent’s appointment can be either by one Months’ notice or one Month full salary in lieu of Notice. We were urged to give the provision in the Handbook its ordinary meaning. The case of AIRLINE OPERATORS OF NIGERIA V. NIGERIA AIRSPACE MANAGEMENT AGENCY (2014) 2 MJSC (pt. 111) p.130 at p. 183 was cited in support. It was contended that where an employer terminates the services of an

employee, the salary in lieu of notice must be paid contemporaneously with the termination of the employment. The case of COMRADE ONAH V. NLC (2013) 33 NLLP (Pt. 94) p. 104 at 166-167 was cited in support. It was submitted that the Respondent’s ‘one month in lieu’ ought to have been paid when the Respondent was issued with his termination of appointment letter and that the failure of the Appellant to do so rendered the termination ineffective and wrongful. In the circumstances it was further argued, the effective date of termination was not the date when Exhibit CW11 was signed, rather, it was when payment was made on 19/4/14 through the letter of 14/4/15 at p. 110 of the Record of Appeal as rightly held by the lower Court at p.227 of the Record of Appeal.

In arguing this issue, both counsel digressed into other matters which are clearly not helpful for the resolution of issue 2.

Now the Junior Staff Handbook of the Appellant which contains the Rules, Regulations and Conditions of Employment of the Respondent and other junior staff of the Appellant, is contained at page 63-80 of the Record of Appeal. Clause 16 of the said Handbook deals with

Termination of Appointment. It reads:
“It is fully understood and recognized that the Company or the employee may terminate the employment without assigning any reason whatsoever by giving the required notice of one month (or pay in lieu) or as may be required by his job grade.
If at the Company’s discretion, the employee is not required to work out his notice, he will receive the appropriate amount in lieu of notice.”
The law as stated by the Supreme Court in the case of CHUKWUMAH V SHELL PETROLEUM (NIG) LTD (1993) LPELR-864 (SC) is that the mode and time of payment of the salary in lieu of notice depends on the circumstances of each case. Now, in this case, the mode and time of payment is stated in the clause of the Handbook just quoted above and it is that the company (the Appellant) may terminate the employment of the employee (in this case, the Respondent), “WITHOUT ASSIGNING ANY REASON WHATSOEVER BY GIVING THE REQUIRED NOTICE OF ONE MONTH ( OR PAY IN LIEU)”. Clearly, by this provision, the termination and the giving of the required notice of one month or payment in lieu, go hand in hand, that is to say, same are to be done at the same time,

or contemporaneously. The Appellant clearly understood that to be the case as it clearly stated in the termination of appointment letter dated 25th October, 2013, issued to the Respondent (see at page 27 of the Record of Appeal). In that letter, it is stated as follows: ” By a copy of this letter, the Plant Finance Manager is being advised to pay you (1) the amount equivalent of one- month basic salary in lieu of notice”. There is no dispute that the Respondent was not paid that one-month basic salary in lieu of notice as directed in the termination of appointment letter of the Respondent. I, therefore, cannot fault the lower Court for having held at page 14 of its judgment reproduced at page 227 of the Record of Appeal that ” Flowing from the above, it is clear that the termination of the claimant’s appointment was wrongful as it has not complied with the conditions and terms of service governing the employment of the claimant and I so hold.” Considering also the provision in the Handbook on the termination of appointment earlier reproduced, which if I may recap, states: “it is fully understood and recognized that the Company or the employee may terminate the

employment without assigning any reason whatsoever by giving the required notice of one month (or pay in lieu)”, it is clear that the time meant for the payment of the one month salary in lieu, was the time the appointment was terminated, not later. I therefore cannot fault the reasoning of the lower Court also at page 14 of its judgment reproduced at page 227 of the Record of Appeal, that “the effective date of the claimant’s termination is the date the payment in lieu was effected, that is, 19th August, 2014. Issue 2 is also resolved against the appellant.

On the 3rd and final issue which is whether the lower Court was right to hold that the respondent made out a case of malicious prosecution against the Appellant, the Appellant’s learned Counsel answered the question in the negative. It was submitted that the facts of the case show that the Respondent was arrested by the Police. Learned Counsel referred to the definition of malicious prosecution as restated in the case of EROMOSELE V. WERMER (2014) ALL FWLR (Pt. 751) p. 1531 at p. 1557 and to the ingredients of malicious prosecution as stated in the case of OJO V. OKITIPUPA OIL PALM PLC (2001) 9 NWLR

(Pt. 719) p. 679 at p. 695. It was submitted that the ingredients of malicious prosecution were not established before the lower Court and that the decision of the lower Court was not supported by evidence and should be set aside.

On this issue, the Respondent’s learned Counsel referred to the evidence of DW1 both in paragraph 11 of his witness deposition on Oath and at pages 88 and 90 of the Record of Appeal and submitted that the evidence established that the Appellant not only lodged a complaint against the Respondent to the Police but had its Chief Security Officer testify against the Respondent without exploiting any internal mechanism to settle the matter as provided for particularly at page 27 of the Appellant’s Junior Staff Handbook. Learned Counsel also referred to the ingredients necessary to establish malicious prosecution. He cited the case of PETER EBENIGHE V. LIVINUS ACHI (2011) 2 NWLR (Pt 1230) p. 65 at 82. It was submitted that the tort of malicious prosecution is considered established if the allegation is without reasonable or probable cause, or malicious or false. He cited the case of JIM JAJA V. COP (2011) 2 NWLR (Pt. 1231) p. 375 at

391.It is settled law that in order to succeed in an action for malicious prosecution the plaintiff must (1) plead and show by evidence that that he was prosecuted by the defendant. In this regard he must show that that the defendant set in motion the law that led to a criminal charge against him. (2) establish that the outcome of the prosecution against him was that he was discharged and acquitted. (3) plead and show by evidence that the prosecution by the defendant was completely without reasonable and probable cause. (4) establish that his prosecution was as a result of malice by the defendant against him. All these elements must co-exist for malicious prosecution to be established. See BALOGUN V. AMUBIKAHUN (1989) LPELR-725 (SC). Now, that the defendant set the law in motion against plaintiff means that the defendant actively instigated the actual prosecution of the plaintiff and not merely that the plaintiff made a report to the Police thereby leaving the matter to the discretion of the Police to decide whether it would prosecute or not. See BAYOL V. AHEMBA (1999) LPELR-761 (SC). The lower Court arrived at the following decision on malicious

prosecution at page 19 and 20 of its judgment at page 282 and also at p 337-338 of the Record of Appeal. It reads:
“In the circumstances of this case, the claimant was merely suspected by the defendant to have attempted to commit theft by overloading a truck on the 25th of October, 2013. In my view, this is mere suspicion that could have been investigated first by applying the provision of part 111, paragraph 19 of the Staff Handbook before rushing to the police. No such investigation was carried out as required by the terms and conditions of service. If internal mechanism was applied and reasonable cause established then the matter could be reported to the police. Moreover, the judgment of the Chief Magistrate Court has shown that the evidence of PW2 (the defendant’s Chief Security who testified on behalf of the defendant) was all based on suspicion.”

The above decision of the lower Court is perverse. A decision is said to be perverse when (a) it runs counter to the evidence and the pleadings; or (b) where it has been shown that the trial Court took into account matters which it ought not to have taken into account or shut its eyes to the obvious

and that this formed the basis of its decision; or (c) that it went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case; or (d) that the Court committed various errors that faulted its decision beyond redemption; or (e) when the circumstance of the finding of facts in the decision is most unreasonable. See FADLALLAH TEXTILES LTD & ANOR V. UNITY BANK (2015) LPELR- 25740 (CA). The lower Court should simply have looked at the elements required to prove the tort of malicious prosecution. Had it done so, it would have found that the appellant merely reported a matter to the police and left the police to exercise its discretion on whether to prosecute or not to prosecute the matter. It would also have found that the respondent was merely discharged and not discharged and acquitted by the Magistrate. Such findings would have shown that elements that could have established malicious prosecution were not present. Instead, the lower Court went into considering the matter of failure to comply with internal mechanisms of the Appellant, a consideration alien to the elements to be considered in order to establish the tort of

malicious prosecution. The result is that its decision on malicious prosecution was perverse. Issue 3 is resolved in favor of the Appellant. Thus, the appeal succeeds in part. As a consequence of the partial success of the appeal, the appeal as it relates to the judgment of the lower Court with regards to malicious prosecution is allowed and consequently, the award of the sum of N2,000,000. 00 to the Respondent for malicious prosecution and false imprisonment is set aside. The rest of the judgment of the lower Court is affirmed. The parties will bear their respective costs in this appeal.

HUSSEIN MUKHTAR, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, Obietonbara O. Daniel-Kalio, J.C.A. I agree with the reasons therein and the conclusion that the appeal succeeds partly on the resolution of issue 3 in favour of the Appellant. The judgment of the Court below in respect of the award of N2,000,000.00 for malicious prosecution and false imprisonment is accordingly set aside. I also adopt other consequential orders made in the judgment.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my

learned brother O.O. DANIEL-KALIO JCA, where the facts and issues in contention have been succinctly set out.

I agree with my learned brother that the lower Court was in error to have found in favour of the Respondent for malicious prosecution.

It is not sufficient for the Respondent to show that he was discharged of the criminal charge; he must also show the mala fides of the Appellant. The active ingredient in malicious prosecution is the malevolent manner by which the Appellant set the law in motion against the Respondent. SeeJohn Holt Plc v. Allen (2014) 17 NWLR Part, 437 Page 443 at 471 Para A – G per Eko JCA (as he then was).
The Police, as an independent organization, is statutorily empowered to take complaints and have a duty to investigate and, in their discretion, to prosecute. This, they have done. The Appellant can thus not be held liable for malicious prosecution.

I accordingly allow the appeal in part and set aside the judgment of the lower Court as it relates to malicious prosecution and false imprisonment.

Save as aforesaid, as my learned brother has done, I affirm the judgment of the lower Court.

Appearances:

ABDULHAFEES D. KHALID, ESQ. For Appellant(s)

D. AHMED, ESQ. For Respondent(s)