PETER EBENIGHE V. LIVINUS ACHI
(2010)LCN/4186(CA)
In The Court of Appeal of Nigeria
On Thursday, the 1st day of April, 2010
CA/J/138/2001
RATIO
WHETHER IT IS EVERY ERROR OR MISTAKE COMMITTED BY A TRIAL COURT THAT WOULD LEAD TO THE REVERSAL OF THE DECISION
it is not every error or mistake committed by a trial court that would lead to the reversal of the decision. It must be so fundamental and crucial, that it has substantially affected the result of the decision in that it has occasioned miscarriage of justice. See HENRY STEPHENS VS COMPLETE LTD. (1987) 1 NWLR (Pt. 47) 40; OSOLU VS OSOLU (2003) 6 SCNJ 162 at 182. PER ABUBAKAR DATTI YAHAYA, J.C.A.
MALICIOUS PROSECUTION: ELEMENTS THAT MUST BE PROVED BY A PLAINTIFF WHEN HE INSTITUTES AN ACTION AGAINST THE DEFENDANT FOR MALICIOUS PROSECUTION
The law is very clear that when a plaintiff institutes an action against the defendant for malicious prosecution, he must prove all four elements thus:- (1) That it was the defendant, who prosecuted him by setting in motion, the law leading to the charge; (2) That he was discharged of the allegation, after trial; (3) That the prosecution was completely without any reasonable and probable cause; and (4) That the prosecution was as a result of malice. Refer to Chief Oyelakin Balogun vs Alhaji Busari Amubikahan (supra) at 26 A -C. PER ABUBAKAR DATTI YAHAYA, J.C.A.
Before Their Lordships
ZAINAB ADAMU BULKACHUWAJustice of The Court of Appeal of Nigeria
UZO NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria
ABUBAKAR DATTI YAHAYAJustice of The Court of Appeal of Nigeria
Between
PETER EBENIGHEAppellant(s)
AND
LIVINUS ACHIRespondent(s)
ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Jos High Court (hereafter referred to as the trial court) delivered on the 21/2/2001, dismissing the claim of the appellant. The appellant as plaintiff, had sued the respondent as defendant, claiming the sum of N5 million as damages for malicious prosecution. The case of the appellant at the trial court, is that the respondent, who was his neighbour, commenced development of his property and used the appellant’s wall fence as part of the development. On seeing this, the appellant protested, indicating that a three-foot space must be left between the two buildings, for sanitary purposes. The respondent pulled out the structure he had erected on the appellant’s fence, and left a one foot space. When further protests by the appellant did not yield any results, the appellant reported to the Eze Igbo 1 Jos, who intervened and asked the respondent to create the three feet space. The respondent refused to do so and reported the appellant to the Laranto police station, alleging that the appellant had threatened to kill him. The appellant and his family were arrested and detained but released after investigation. The respondent then made a similar allegation by means of a direct complaint at the Central Area Court, Jos. The appellant was later discharged. Still yet, the respondent made similar allegations of threat to life, against the appellant, with the Police Area Command at Jos, which resulted in the arrest and detention of the appellant for five days. The appellant was charged at the Magistrate Court Jos, for criminal intimidation. After the trial, the appellant was discharged. Hence his action before the trial court.
On the other hand, the respondent’s case is that the appellant had really threatened his life and when he reported to the police, an investigation was carried out which resulted in the appellant being charged to court. He denied instigating the police to prosecute the appellant, and, further, that he did not procure any false witnesses.
Following the full trial, the trial court dismissed the action of the appellant. Being dissatisfied, he appealed to this court on four grounds of appeal as per the Amended Notice of Appeal deemed filed on the 25/5/2005. From those grounds, four issues for determination were identified in the Appellant’s Brief of Argument, settled by his counsel L.E. Anyia. They are:-
i. Whether the Learned Trial Judge was right (having regard to all the circumstances of the case) to have held that the plaintiff/Appellant failed to prove all the four ingredients of malicious prosecution against the Defendant/Respondent.
ii. Whether the Learned trial Judge was right to have re-admitted in evidence, in the same proceedings, a document he had previously admitted and marked rejected and then used the document to the detriment of the plaintiff.
iii. Whether the Learned trial Judge did not misdirect himself in construing the various arrests and detention of the Plaintiff/Appellant as distinct acts of prosecution and thereby robbed himself of proper evaluation of the evidence.
iv. Whether the Learned trial Judge was right when she held that the Plaintiff/Appellant has failed to prove his case against the Defendant having regard to the evidence before the court.
In the Respondent’s brief of argument deemed filed and served on the 19/3/2007, and deemed argued on the 12/1/2010, two issues were identified for determination:-
1. Was the trial court right in holding that the appellant as plaintiff had failed to prove his case against the respondent?
2. Was it proper for the honourable court to have admitted exhibit 5 when it discovered on the authorities that it was wrong to have rejected it in the first place.
In my view, Issues 1 and IV identified by the appellant are the same.
The Issues that call for determination therefore are:-
1. Whether the learned trial Judge was right (having regard to all the circumstances of the case) to have held that the plaintiff/appellant had failed to prove all the four ingredients of malicious prosecution against the defendant/respondent.
2. Whether the learned trial Judge was right in re-admitting in evidence in the same proceedings, a document he had previously rejected and marked rejected, and using same to the detriment of the appellant.
3. Whether the learned trial Judge did not misdirect himself in construing the various arrests and detention of the plaintiff/appellant as distinct acts of prosecution and thereby robbed himself of proper evaluation of the evidence.
ISSUE NO.2
On this issue, the submission of learned counsel to the appellant, Mr. L. E. Anyia, is to the effect that the trial court was wrong in law when it admitted in evidence, the letter dated the 24/3/1999 as Exhibit 5, after it had earlier rejected same and had marked it rejected. The reason for the earlier rejection was that the document was not pleaded or alluded to and was a photocopy, without a notice to produce and without any explanation as to the whereabout of the original. ETIM OKONKWO ITA & 1 Or VS. NKOYO EKPENYONG & 1 Or (2001) 1 NWLR (Pt. 695) 587 at 617 to 6628 and CHIEF BABATOLA VS. ALADEJANA, THE ALANWAROKO (2001) 12 NWLR (Pt. 728) 597 at 608 to 609 G – D, were relied upon.
On the reasons for re-admitting the letter because parties had joined issues on it, Counsel argued that since it was the appellant who pleaded the letter in his paragraph 15 of the statement of claim, but had not tendered it, the pleading in that respect is deemed abandoned and parties could not have joined issues on it. He cited OBA OYEDIRAN VS. OBA ALEBIOSU II (1992) 7 SCNJ 187 at 192. Counsel urged us to expunge Exhibit 5 from the record.
In his response, Mr. Maduabuchi, learned counsel for the respondent, submitted, relying on the case of SHANU VS. AFRIBANK PLC. (2002) 17 NWLR (Pt. 795) 185 at 220 – 222, that the trial court was right when it re-admitted the letter after discovering that it had wrongly rejected it earlier, especially as the letter was admitted to give the lie to the evidence of PW3, who said that the defendant/respondent wanted him to lie on his behalf. In the letter, he said nobody requested him to give false evidence on his behalf.
Counsel argued that even if the letter was wrongly admitted, it did not form the basis of the judgment of the court and was therefore not decisive enough to warrant the reversal of the judgment- GBAFE VS. GBAFE (1996) 6 SCNJ 167 at 177. He emphasized that as none of the ingredients of the offence of malicious prosecution had been proved, the issue of Exhibit 5 is not crucial.
Now, both counsel have relied on Supreme Court decisions in BABATOLA VS. ALAWOROKO (supra) and FRANCIS SHANU VS AFRIBANK (supra) to support their contending positions. In BABALOLA VS ALAWOROKO (supra), at the trial court and during trial, a sketch map was sought to be tendered for admission as an exhibit, by the counsel to the plaintiff/appellant. Counsel for the defendant/respondent objected as it was not pleaded. The trial court agreed with the defendant’s counsel, and refused to admit the sketch map. Counsel for the plaintiff then applied orally to amend the statement of claim in order to plead the sketch map. Although, counsel for the defendant objected, the court granted the application to amend the statement of claim. The amendment was effected. Counsel for the plaintiff then applied to tender the sketch map. Counsel for the defendant again objected but he was overruled. The trial court granted the application and admitted the sketch map as Exhibit C. At the Court of Appeal, the issue was raised and the Court held that the judge was wrong to so admit Exhibit C after he rejected it earlier in the same proceedings. The Supreme Court on appeal, per Mohammed JSC, affirmed the position of the Court of Appeal and held at pages 608D – 609D that:-
“The law is very clear on what should happen to a document that has been declared inadmissible by the court. It should be marked ‘Tendered and Rejected’ …The learned trial Judge I hold, was wrong to have admitted Exhibit ‘C’ in evidence after first rejecting it. Exhibit ‘C’ should be expunged from the records.” (Emphasis mine).
But in FRANCIS SHANU VS. AFRIBANK (supra) the Supreme Court per Uwaifo JSC in the lead judgment at page 220, held that:
“It is true that as a general rule, a court is not permitted to reverse itself on taking a decision on an issue in the same proceedings After a court has made an order or given a judgment it becomes functus officio and cannot change or reverse the same except under the very restricted slip rule.”
The cases of ASIYANBI VS ADENIJI (1967) 1 ALL NLR 32 at 86; OLUROTIMI VS. IGE (1993) 8 NWLR (Pt. 311) 257; LAWAL VS. DAWODU (1972) NSCC (Vol. 7) 515; ITO VS. EKPE (2000) 3 NWLR (Pt. 650) 678; OGBOGU VS NDIRIBE (1992) 6 NWLR (Pt. 245) 40 and EBBA VS OGODO (2000) 10 NWLR (Pt. 675) 387 at 406 which approved the principle decided in FIDELITAS SHIPPING CO. VS V/O EXPORTCHLEB (1966) 1 Q.B 630 at 642 were referred to.
But at page 221 of the SHANU VS AFRIBANK, UWAIFO JSC went on to say that:
“Issue estoppel however, does not apply against a court which rules that a piece of oral evidence or a document is admissible but later finds that in law or in procedure it is not. The duty of the court to decide on legally admissible evidence is an exception to the rule that a court is functus officio on taking a decision on a matter and cannot reverse itself on it…The admissibility of a document or a piece of oral evidence may be contended by the parties and the trial judge will normally rule on it. If in his ruling he admits the oral or documentary evidence, he may at the stage of writing his final judgment discover that it is not legal evidence at all. It cannot be considered a valid argument that because he gave a ruling to admit the evidence, he is bound to stick with his error. He has a duty to expunge the evidence and decide on legally admissible evidence. This can be done even at the stage of judgment… AJAYI VS FISHER (1956) SCNLR 279; OLONYIN VS OMOTOSHO (1961) 2 SCNCL 57…”
The case of BABATOLA VS ALAWOROKO (supra) is directly on the point in this appeal as a document was rejected because of non-pleading, and it being a photocopy without a notice to produce the original. But later, in the same proceedings, the trial Judge whilst writing his final judgment, reversed himself and admitted it, even though there was no amendment to the pleading. That is not the position in SHANU VS AFRIBANK (supra) because in this case, the Supreme Court held that if a document is admitted, but later in the same proceedings, it is found to be legally inadmissible, then even at the stage of the final judgment, the court ought to reject it. I therefore hold that the case of BABATOLA VS AFRIBANK (supra) is the one directly applicable and relevant in this appeal and I am bound by it. The case of SHANU VS AFRIBANK cited by counsel to the respondent is not applicable here.
This apart, the trial judge refused to admit the letter earlier, because it was not pleaded and was also a photocopy without any foundation to tender it- notice to produce. He later turned round to say it was pleaded, but curiously, said nothing about the procedural mistake of not laying a proper foundation to tender the photocopy. Apart from the fact that on the authorities, he could not reverse himself, admitting the letter was wrong as no proper foundation had been laid to tender the photocopy i.e notice to produce the original. It is therefore my view, that admitting Exhibit 5 in evidence has offended the law and the known principles of procedure. It is wrong and it is therefore hereby expunged from the record- FASIMI VS OGUNKAYODE (2005) 12 NWLR (Pt. 938) 147 at 164 – 165.
The next point to consider is whether the wrongful admission of Exhibit 5 has adversely affected the outcome of the case. This is because it is not every error or mistake committed by a trial court that would lead to the reversal of the decision. It must be so fundamental and crucial, that it has substantially affected the result of the decision in that it has occasioned miscarriage of justice. See HENRY STEPHENS VS COMPLETE LTD. (1987) 1 NWLR (Pt. 47) 40; OSOLU VS OSOLU (2003) 6 SCNJ 162 at 182.
The trial judge only used Exhibit 5 in the periphery. It did not play a crucial role in the decision. In fact it is Exhibit 3 and the evidence in chief of PW 3 that the trial judge placed premium upon, as they showed the despicable nature of PW 3, a witness who should not be believed. The judge said at page 56 of the record, that:
“He (PW 3) admitted writing Exhibit 3 to the plaintiff in which he requested from the plaintiff the sum of N500.00 to refund to the defendant. What is more, in his evidence in chief, he stated that when he attempted to refund the money to the defendant and Nwokolo they refused to accept. Yet, the picture he paints in exhibit 3 is that he needs the plaintiff to give him N500.00 to refund to them. I can say that this is a person who is willing to do the bidding of whoever can pay. No reasonable court can rely on the testimony of this witness.”
The trial Judge had material upon which he based his finding. He cannot be faulted. It has shown that Exhibit 5 was not crucial in any respect and therefore, its admission in evidence did not materially affect the outcome of the case. The judgment would not be set aside, on its account. Issue No.2 is thus resolved partially, but non-consequentially, in favour of the appellant.
ISSUE NO.1
This has to do with whether the appellant had failed to prove all the ingredients of malicious prosecution against the respondent. The submission of counsel to the appellant is that four ingredients must be proved in a case of malicious prosecution. He cited CHUKWUKA VS OKOLOCHA (1974) 4 UILR 487; Co-operative and COMMERCE BANK VS ODOGWU (1990) 3 NWLR (Pt. 140) 646 at 660; CHIABEE BAYOL VS AHEMBA (1999) 7 SCNJ 223 at 232; and CHIEF BALOGUN VS ALHAJI AMUBIKAHUN (1989) 3 NWLR (Pt. 101) 18 at 26.
On prosecution of the appellant by the respondent, counsel referred to the evidence of PW1 and DW1, Exhibit 1 and the evidence of the plaintiff and his witnesses to argue that it was the respondent who set the wheel of the law against the appellant and that the report was not a mere report. He was emphatic, that the respondent had failed to testify to rebut the evidence of the appellant and PW4 that the appellant was charged to court at the instance of the respondent. He cited EZENAYA VS OKEKE (1995) 4 SCNJ 60 at 80 and 81.
On prosecution ending in favour of the appellant, counsel referred to Exhibit 1 and the findings of the trial court at page 55 lines 19 – 27 of the Record.
On reasonable and probable cause, counsel referred to the definition in HICKS VS FAULKNER (1818) 8 Q B.D 167 at 171 and AMIBIKAHUN’S case (supra) at page 27, to argue that the respondent had no honest belief in the report he made to the police, since he knew that it was only a case of dispute as to the space required to be left between the buildings of the two parties. He argued that it was because the Eze Igbo had directed the respondent to give the mandatory 3 feet space required by sanitary laws, that made him to make the false report to the police without an honest belief.
On malice, counsel referred to its definition, in Black’s law Dictionary, 6th Edition as “the intentional doing of a wrongful act without just cause or excuse, with an intent to inflict an injury”; and in Windfield and Jolowicz page 289, as a situation in which the defendant knows that the statement he made is false, or reckless, not caring whether it is true or not. He submitted that the report made by the respondent was ill motivated and therefore without any reasonable and probable cause. In such a situation, he submitted, relying on CHIEF CHUKWUKA VS OKOLACHO (supra) at 496 and INNEH VS ARNEGBON 14 W.A.C.A. malice should be inferred. He submitted that it was wrong for the trial court to hold that malice was not proved when there was no honest belief in the report to the police. He urged us to allow the appeal in this issue.
On his part, counsel for the respondent, submitted that the appellant had failed to establish his case. On prosecution, he submitted that it was the police that prosecuted the appellant and not the respondent. He referred to the evidence of DW1 in this regard. The trial court was therefore right in its position. Counsel also submitted that the appellant had failed to discharge the duty on him, of proving absence of reasonable and probable cause, in making the report to the police. He referred to the evidence of DW1 on intimidation of the respondent. He argued that as the appellant had the duty to prove all the four ingredients, and had failed to prove three ingredients, he must fail. He urged us to dismiss the appeal.
The law is very clear that when a plaintiff institutes an action against the defendant for malicious prosecution, he must prove all four elements thus:-
(1) That it was the defendant, who prosecuted him by setting in motion, the law leading to the charge;
(2) That he was discharged of the allegation, after trial;
(3) That the prosecution was completely without any reasonable and probable cause; and
(4) That the prosecution was as a result of malice. Refer to Chief Oyelakin Balogun vs Alhaji Busari Amubikahan (supra) at 26 A -C.
In the instant appeal, did the respondent prosecute the appellant? There was evidence before the trial court, through PW1 and Exhibit 1, that the appellant was tried at the Chief Magistrate Court, Main Market, Jos. The appellant, who gave evidence as PW2 during the trial, stated that the respondent reported him to the Police Area Commander on the allegation of threat to his life. The respondent went with the police, and identified the appellant to the police, who then arrested him. He was detained for five days at the police station before he was charged to court and prosecuted. After the trial, he was discharged. The appellant also stated in evidence, that the respondent procured a false witness (PW3) to give false evidence in court. PW4 in his evidence, confirmed the arrest and prosecution of the appellant.
Although the respondent did not testify at the trial (he did not have to) DW1 who was the investigating police officer at the time, gave evidence and stated that the respondent indeed made a report to the Police Area Commander of criminal intimidation against the appellant. In the course of his investigation, he invited both parties and their witnesses to his office and they were interviewed by the police Area Commander, who later instructed DW1 to take the case to court, which he did. He denied taking instructions from the respondent to take the matter to court or to detain him for five days as he could not give him instruction. He also stated that the respondent only acted as a pointer, to enable him invite the appellant to the police station. Under cross-examination, this witness said that during his investigation; he discovered that criminal intimidation of the respondent by the appellant was a repeated event’.
In EZEANYA VS OKEKE (SUPRA) AT PAGE 80 – 81, the Supreme Court held that among other things, a ‘prosecutor’ “refers to one who instigates the prosecution upon which an accused is arrested…”
In BALOGUN VS AMUBIKAHAN (SUPRA) AT PAGES 26 -27 Belgore JSC, held that:
“It is true that the police arrested the respondent and locked him up… It is also evident that the police charged the respondent before a Magistrate Court. But the real force behind the whole matter is the Appellant. He knew very well that the whole criminal complaint was a fabrication and that the arrest, remand in police custody and subsequent trial of the Respondent was an unmitigated abuse of judicial process. He it was that technically set the whole prosecution in motion … It was the Appellant that set in motion the law by appealing to the police to arrest, charge and take the Respondent to the police. In Nigerian situation, once a report or complaint is made to the police and strenuously pursued as in this case and through the same mischievous lying, the police not only make an arrest of the incriminated person, but proffer a charge against him and take him to Court for prosecution, the complainant has set in motion the law for a person clothed with authority to arrest and charge the incriminated person. The complainant, having made a false statement maliciously will be liable for malicious prosecution even though he may not technically have been the prosecutor in the strict sense.” (Emphasis mine).
In the instant appeal, all that the respondent did, was to make a report to the police Area Commander who caused an investigation to be carried out before charging the appellant to court. The fact that he acted as a pointer, is no evidence of further acts of instigation. He only identified the appellant to the police to enable them invite him to the police station. Also, DW1 said he was not instigated by the respondent to arrest and charge the appellant. This evidence was not controverted, and was believed by the trial court. As there is nothing perverse about it, this court cannot interfere. This shows clearly, that it was not the respondent who appealed to the police to arrest, charge and try the appellant in court, as opposed to the position in Amubikahan’s case (supra). The respondent did not convey the police in his car. Also DW1 clearly stated in his evidence before the court, that he investigated the report and founded that the ‘criminal intimidation’ for which the appellant
PAGE 17 OMITTED
I therefore hold and find that the trial court was right when it held on the authority of BAYOL VS AHEMBA (supra) at 109, that:
“in the absence of evidence to show the active instigation of the police by the defendant to charge the plaintiff to court, my candid opinion is that the police was the prosecutor.”
The police, and not the respondent, was the prosecutor in this instance.
On the absence of reasonable and probable cause, it has been held in AMUBIKAHAN’S case (supra) per Belgore JSC-
“The belief in criminal culpability of the plaintiff must be honest, based upon 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 the offence.”
Once a report is false and trumped, then there is no question of honest belief by the reporter (defendant) and that would negative reasonable and probable cause. Here, the evidence of DW1 clearly shows that not only was the report not false, but that it had been made repeatedly. Clearly therefore, the appellant had not been able to establish that the respondent did not have reasonable and probable cause to make the report.
On malice, the trial court made a finding that from the totality of the evidence adduced by PW2, PW3 and PW4, there is no evidence of malice. Surely, the report to the police of repeated criminal intimidation, cannot be malicious. Furthermore, once honest belief is established, to the extent that there is sufficient evidence to establish guilt, then malice cannot be attributable to the complainant. This is the position here. See Amubikahan’s case (supra) at page 34. The appellant had thus failed to prove malice on the part of the respondent.
On discharge after the prosecution, Exhibit 1 and the evidence of the appellant, have established this. He has therefore succeeded in proving this lone element. As all the four elements must be proved, and as the appellant here has proved only one, he had failed to discharge the evidential burden on his shoulders and could therefore not have succeeded. Issue No.1 is resolved against the appellant.
ISSUE NO. 3
This issue is as to whether the trial Judge had misdirected himself, when he considered the various arrests and detention of the appellant, as distinct acts of prosecution.
Here, counsel for the appellant, submitted that the trial judge was wrong when he treated the antecedent facts pleaded by the appellant as if they were separate heads of claim for malicious prosecution, because the antecedent events did not form the basis of separate prosecution.
It is true, that the trial Judge treated the antecedent events as if they were separate heads of claim for malicious prosecution. I am however unable to agree that this has resulted in an improper evaluation of the evidence as a whole. This is because, there is evidence before the trial court, that the first report was made by the respondent to the Laranto police station. This is in respect of Particulars A and Ai, which can be termed as the first antecedent. So, although the appellant was arrested, he was asked to go after investigation. He was never charged to court. This could therefore not be termed ‘prosecution’, let alone malicious. For prosecution to occur, the appellant must have been charged, arraigned and tried. These things did not happen in respect of Particulars A and A1. The lid was effectively closed when the police at Laranto, discharged the appellant without prosecuting him. The case of the appellant was malicious ‘prosecution’ and not malicious ‘report’. And when the respondent made a direct criminal complaint against the appellant at the Central Area Court 1 Jos, this is in respect of Particulars B and B1, and was, so to speak, the second antecedent. Here, the appellant himself testified in court that, after they had ‘made statement in court’, ‘I was asked to go’. Here again, the appellant was never charged, arraigned and tried and so was not prosecuted at all. These antecedents could therefore never form part of malicious prosecution. The prosecution for which the appellant took out the action, was that which was given birth by the report to the police Area Commander, and which culminated in the prosecution at the Chief Magistrate Court. The trial judge had proceeded rightly in considering the antecedents for what they are worth and cannot be faulted. Certainty, it did not becloud his vision and did not prevent him from properly evaluating the evidence.
Even if the judge fell into any error, it was not substantive and did not adversely alter the result. His decision was right and the reasons he gave are not the material aspect. Whatever the situation, the appellant had failed to prove that the respondent prosecuted him. On that alone, the action was doomed to fail. So even if there was any mistake or error committed by the trial judge in the separate consideration of the antecedents, (we do not see any) the error has not occasioned any miscarriage of justice and the appeal cannot be allowed in that respect. See I.B.W. LTD. VS PAVEK (2000) 7 NWLR (Pt. 663) 128 and ODUKWE VS OGUNBIYI (1998) 6 SCNJ 102 at 113. Issue No.3 is resolved against the appellant.
This appeal therefore lacks merit and it is dismissed. The judgment of the trial court delivered on the 21/2/2001 in Suit No. PLD/J535/99 is hereby affirmed N30,000 costs to the respondent.
ZAINAB A. BULKACHUWA, J.C.A.: I have read before now the draft of the judgment just delivered by my learned brother Yahaya J.C.A.
I agree with the reasoning and the conclusion reached therein, in dismissing the appeal as lacking in merit. I dismiss the appeal and abide by the consequential orders including orders as to cost
UZO NDUKWU-ANYANWU, J.C.A.: In an action for malicious prosecution, the Plaintiff is under a heavy burden to prove all the 4 ingredients i.e.:
(1) That it was the Defendant, who prosecuted him by setting in motion the law leading to the charge.
(2) That he was discharged of the allegation after trial.
(3) That the prosecution was completely without any reasonable and probable cause; and
(4) That the prosecution was as a result of malice.
Failure to prove any of these ingredients means that the claim for malicious prosecution must fail.
I am in total agreement with the more comprehensive reasoning and conclusions of my learned brother Yahaya, JCA in the lead judgment. This appeal lacks merit and it is accordingly dismissed.
I affirm the judgment of the trial Court delivered on 21st February, 2001. I abide by the order as to cost in the lead judgment.
Appearances
L.E. AnyiaFor Appellant
AND
For Respondent
