PRINCE CHIGOZIE UBA v. MRS. CHINENYA OKOLIE
(2018)LCN/11991(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of July, 2018
CA/E/589/2013
RATIO
INTERPRETATION: CANON OF INTERPRETATION
“It is a canon of interpretation that: Expressio unius est exclusion alterius, meaning, to express one thing implies the exclusion of the other. Any other Process of Court hence actions commenced by way of the Writ of Summons cannot stop running. Under Order 45 Rule 6 specific mention is made of the filing and service of pleadings only and not the Writ of Summons or any other Process of Court hence actions commenced by way of Writ of Summons cannot stop running merely because the High Court was on vacation. It is not the legislative intent of the draftsmen that the period of vacation of the High Court is a ‘Public of Holiday’ as claimed by the appellant. It is not so expressly provided for by the rules of the High Court of Anambra State hence counsel and litigants alike should be wary in reading meanings into words or provisions which otherwise are clear and such provisions should be accorded their ordinary, natural grammatical meaning and interpretation. See: Olatunde Vs. O.A.U (1998) 5 NWLR (Pt. 549) 178; Osunde Vs. Federal Republic of Nigeria (2000) 12 NWLR (Pt. 682)483.” PER SAIDU TANKO HUSSAINI, J.C.A.
ACTION: A CAUSE OF ACTION
”A cause of action is a set of facts which establish or give rise to the right to sue and or the factual situation which gives a party a right to judicial relief. The cause of action in a suit incorporates every fact which will support a party’s right to succeed or to have Judgment of Court in his favour. See Jemibewon V. Kosoko (2010) LPELR-8970 (CA); A/G, Kwara State Vs. National Judicial council (2010) LPELR-5009 (CA); P.N. Udoh Trading Company Vs. Abere (2001) 11 NWLR (Pt. 723) 114, 129.” PER SAIDU TANKO HUSSAINI, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
PRINCE CHIGOZIE UBA – Appellant(s)
AND
MRS. CHINENYA OKOLIE – Respondent(s)
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment):
This appeal is against the decision of the High Court of Anambra State sitting in Onitsha, Coram: Chudi Nwankwor, J. delivered on the 10th September, 2013 in suit No. 0/248/2012 striking out the said suit on account of incompetence. The appellant was the plaintiff at the said Court.
The facts of the case, from the perspectives of the appellant is that, the respondent on or about the 15th April, 2005 made a false and malicious complaint against him (appellant) at Okpoko Police Station Ogbaru, Anambra State that he maliciously and unlawfully damaged the wall and building of her (respondent?s) store at Ogbaru Main market Okpoko.
On the basis of the complaint, the appellant was arrested by the police and later charged to the Chief Magistrates Court, Atani Ogbaru, Anambra State on a one count charge of malicious and unlawful damage to the respondent’s property in charge No. MGB/82C/2005: COP Vs. Prince Chigozie Uba. After two witnesses had testified for the prosecution at the Chief Magistrate Court, the complainant the respondent herein, lost interest in the case and stopped going to Court. In the month of September 2006, respondent’s counsel informed the Court that he saw no reason why the appellant should continue to be dragged about whereas the respondent did not appear for the case as the complainant. The Magistrate, on the said date, on the strength of respondent’s counsel’s application, dismissed the charge against the appellant. The appellant as a result approached the High Court of Anambra State vide the Writ of Summons and the Statement of Claim filed on the 14th September, 2012.
The Respondent on her part denied the claim and maintained that on the 14th April, 2005, the Appellant, invaded the construction site of her stall No. Plan/B1/11513 at Ogbaru Main Market, Opkoko, and claimed ownership of the said stall. She also claimed that the appellant further threatened to pull down the block work going on thereon if the respondent did not cease further construction on the site. Based on the threat issued by the appellant, the respondent informed some of the executive of that Section of the market. The next morning, being the 15th April, 2005, the said stall,
due to the threat of the Appellant, was destroyed hence the (respondent) reported the matter to the Police. Respondent claimed that the report to the Police was not false or made out of malice as her shop was actually maliciously and unlawfully destroyed. Respondent maintained that the decision to frame a charge against the appellant for malicious damage was entirely the decision of the Police even though the charge relate to the malicious damage of respondent?s shop. Respondent maintained that the police, duly carried out an independent investigation into the complaint of the respondent devoid of any undue influence from the respondent when it took the decision to arraign the appellant. Respondent further maintain that at the time the case was dismissed at the Magistrate Court, she had lost tract of the case having relocated from Okpoko to Attani due to the activities of Massop members at Okpoko. Respondent further maintain that the charge in MGB/82C/2005 was not determined on the merit but was dismissed for lack of diligent prosecution.
Upon the respondent filing her defence, the case proceeded to trial and witnesses were called by parties on both sides and exhibits were tendered.
The trial Court at the conclusion of hearing delivered Judgment and dismissed the claim of the appellant in its entirety. Aggrieved by that decision of the High Court, the plaintiff on the 7th October, 2013 lodged an appeal to this Court vide the Notice of appeal dated the 7th October, 2013 and filed same date, with 4(four) grounds of appeal. See pages 129-131 of record of appeal.
Parties thereafter filed and exchanged briefs of argument after the transmission of record to this Court in terms of:
i. Appellant’s Brief of argument dated 8th January, 2014 but deemed filed on the 25th April, 2018.
ii. Respondent’s Brief of argument dated 26th February, 2014 but deemed filed on the 25th April, 2018.
iii. Appellant’s reply brief dated 20th April, 2015 also deemed on 25th April, 2018.
The appellant in his brief of argument dated 8th January, 2014 and filed on the 23rd January, 2014 raised 5 (five) issues for determination, namely;
a. Whether the Court’s vacation period under Order 45 Rules 1-6 of the High Court of Anambra State (Civil Procedure) Rules is not a public holiday period under the law.
b. Whether the Statement of Claim by virtue of Order 3 Rule 2 of the High Court of Anambra State (Civil Procedure) Rules 2006, is not an integral part of the Writ of Summons since it shall imperatively accompany the writ of summons during commencement of an action in the Court.
c. Whether the provisions of Order 45 Rule 6 of the High Court of Anambra State (Civil Procedure) Rules 2006 by which time for filing and service of pleadings do not run vacation should not extend to time for filing of the Writ of Summons especially having regard to the provision of Order 3 Rule 2 of the said High Court Rules that both the Writ of Summons and the Statement of Claim shall imperatively go together.
d. Whether the learned trial Judge did not positively and properly evaluate the evidence adduced before him at trial especially relating to the shifting of onus of roof (sic) to the defendant/respondent on the rationale for her setting the law in motion to the criminal charge against the appellant at the Magistrate Court.
e. Whether the plaintiff/appellant did not prove all the essential elements of malicious prosecution at trial.
Respondent on his part raised 2 issues in his brief of argument, namely:
1. Whether the learned trial judge was not right when he struck out the case of the Appellant for being Statute barred and thus incompetent. (Ground 1)
2. Whether the learned trial judge was not right when he held that the Appellant failed to prove the essential ingredients of his claim. (Ground II)
Respondent further in his brief of argument, by Notice, raised some points of preliminary objection to the suit at paragraph 5.0, page 8 of the brief of argument.
At the hearing of the appeal on the 25th April, 2018. Counsel adopted their respective briefs of argument. Learned counsel for the appellant further urged us to allow the appeal and set aside the Judgment delivered at the Court below and grant the claims as per the Statement of Claim before the trial Court. Counsel for the respondent, on his part prayed the Court to dismiss the appeal.
Learned counsel on both sides had earlier at the hearing addressed the point relating to the Preliminary Objection raised by the respondent in her brief of argument.
I will now proceed to first address those points raised by way of Preliminary Objection. The Notice to this effect had been incorporated into the respondent?s brief of argument, at page 8. The grounds of Objection are as follows:-
(i) The appellant filed three (3) grounds of appeal, yet formulated five (5) issues for determination.
(ii) Ground 2 of the grounds of appeal is incompetent in that the complaint does not form part of the ratio decidendi of the Judgment of the Court.
(iii) No issue was formulated from ground 3 of the grounds of appeal.
(iv) Issue 5 did not arise from any of the grounds of appeal.
It has been argued in relation to ground 1 of the Preliminary Objection that to raise more issues than there are grounds of appeal, amount to proliferation of issues, and this, it is argued is unacceptable. He placed reliance on the decision in Unilorin V. Oluwadare (2003) 3 NWLR (Pt. 808) 557; Padasa vs. Yatau (2003) 5 NWLR (Pt. 818) 247; Sogbesan V. Ogunbiyi (2006)4 NWLR (Pt. 969). Such issues proliferated it is argued, should be discountenanced and declared incompetent on the authority of Ibrahim V. Ojomo (2004) 4 NWLR (Pt. 862) 89; Iwuoha V. Nipost (2003) 8 NWLR (Pt. 822) 308; Adelusola Vs. Akinde (2004) 12 NWLR (Pt. 887) 295; Atiku Vs. State (2010) 9 NWLR (Pt. 1198) 241.
It is argued in relation to ground 2 of the Preliminary grounds of objection that appellant?s ground 2 was not a valid ground of appeal since same was not an attack on the ratio decidendi of the decision appealed against, rather it is an observation or statement made by the Court by the way, and to that extent, the said ground 2 of the grounds of appeal is incompetent.
In relation to ground 3 of the grounds of Preliminary Objection, it was argued that since no issue was raised from that ground of appeal, the said ground is deemed abandoned. He relied on Akinsipe V. Adetoroye (1999) 9 NWLR (Pt. 617) 162; Reckitt & Coleman Ltd V. Gongoni (2001) 8 NWLR (pt. 716) 592; Joshua V. State (2001) 5 NWLR (Pt. 658) 581.
In arguing ground 4 of the Preliminary Objection, counsel for the respondent, in reference to issue E argued that the said issue E did not arise from any of the 3 grounds of appeal and thus, urged this Court to discountenance same. Decisions in Shittu Vs. Fashawe (2005) 14 NWLR (Pt. 946) 671; Mark v. Eke (2004) 5 NWLR (Pt. 865) 54 were cited and relied on.
Learned respondent’s counsel urged us to sustain the objection.
The response of the appellant are contained in his reply brief at page 1-3, paragraphs A-1.03. The appellant did not dispute the fact that there are more issues formulated than there are grounds of appeal but to him this does not matter. So long as issues raised which are in excess of the grounds have not led to any injustice, the party on the other side should not complain over it.
Pointing to issues (a) (b) and (c) raised in the appellant’s brief, learned appellant’s counsel argued that those issues were derived from ground 1 of the grounds of appeal.
On the submission that ground 2 (two) of the Notice of Appeal was not a complaint or an attack on the decision appealed against, it is argued per contra that the said ground and the particulars of error that accompany that ground, read together, did reveal that the trial Court did not go far enough in his evaluation of evidence on the issue of malicious prosecution, hence ground 2(two) was relevant and valid.
Learned appellant’s counsel also debunked the insinuation that issue E did not arise from any of the 3 (three) grounds of appeal when by ground 2 (two) of the Notice of appeal, it is clear that issue No. (e) was formulated from the said ground. We were urged to overrule the Preliminary Objection.
It appears to me that appellant’s counsel, has no answer to the objection taken in relation to ground 3 (three) of the grounds of appeal. In that circumstance the said ground 3 (three) of the grounds of appeal is deemed to have been abandoned. I so hold.
An appeal can lie against any decision of a Court by way of Notice of appeal, stating in it, the grounds of complaint, more commonly referred to as grounds of appeal, as to why that decision or Judgment should be reversed or set aside. For the notice of appeal to be valid, the grounds contained therein, must be drafted in such a way that it covers or captures all the complaints on both facts and law the appellant has against that Judgment. Where therefore a ground of appeal does not relate to the substance of that decision, such a ground of appeal is incompetent and must, perforce, be struck out. This brings to mind, the question surrounding ground 2 (two) of the grounds of appeal.
It is clearly a ground predicated on the supposed contradictory nature of the evidence of defence witness and not the plaintiff?s, on whom the burden lies to prove his case. Clearly, the remark or finding on this point at page 123 of record of appeal that evidence by defence respondent was contradictory, is not the basis of the decision of the trial Court but viewed from the perspective of the particulars which accompany that Ground of Appeal, there is the need to go further and look into that complaint.
A decision of Court is founded on the ratio decidendi of the case and not on every remark or statement made by the Court. See: Oni Vs. Fayemi (2008) 8 NWLR (Pt. 1089) 400, 427; Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156; Coker Vs. UBA Plc. (1997) 2 NWLR (Pt. 490) 641.
By the Notice of Appeal at pages 129 – 131 of the record, the Appellant raised 4 (four) grounds of appeal but distilled 5 (five) issues at pages 3-4 of his brief of argument which are not tied to any of the grounds of appeal.
Issues formulated must correlate with grounds of appeal. It is bad and deplorable for a party to formulate more issues than there are grounds of appeal because issues must be tied or married to the grounds of appeal. An issue for determination ordinarily, may be formulated from one ground of appeal or from more than one ground of appeal. On no account should there be more issues than there are grounds as such will lead to proliferation of issues. Proliferation of issues is not accepted in this Court, it is deprecated. However the question of the proliferation of issues should not be a bar to hearing of an appeal on the merit as the appeal Court is free to formulate issue on its own as are consistent with the grounds and proceed thereafter to determine the appeal. See: Kafaru Arowolo V. Adesina (2010) LPELR 4384(CA); Omilani Vs. Omisere (2006) 3 NWLR (Pt. 1020) 177; Labiyi Vs. Anretiola (1992) 8 NWLR (Pt. 258) 139.
It is for this reason, I will now proceed to determine this appeal based on the two (2) issues formulated in the respondent’s brief of argument which I have reproduced earlier along with the 6 (six) issues formulated for the appellant in his brief of argument.
For the purpose of clarity, I wish again to reproduce the two issues formulated in the respondent?s brief of argument as follows:
1. Whether the learned trial judge was not right when he struck out the case of the Appellant for being Statute barred and thus incompetent. (Ground 1).
2. Whether the learned trial judge was not right when he held that the Appellant failed to prove the essential ingredients of his claim (Ground II).
Learned counsel for the appellant in reference to issue No. 1 above was affirmative in his approach stating that the suit commenced by the appellant by way of the Writ of summons of the 4th September, 2012 was not caught by Statute of Limitation, in this case, the Action law Cap 3, Revised Laws of Anambra State. This submission of counsel is anchored on 3 factors, namely:-
i. By virtue of Order 45 Rules 1-6, the period of vacation at the High Court of Anambra State, is a Public Holiday, by reason of which time does or should not begin to run over processes like the Writ of Summons filed during that period of vacation. Consequently, the suit filed by the appellant is not Statute barred when and if the period of Court vacation was excluded in the computation of time.
ii. By reason of Order 3 Rule 2 of the High Court of Anambra State (Civil Procedure) Rules, 2006, the Statement of Claim is an integral part of the Writ of Summons since the same, by the rules of Court, must accompany the Writ at the time of filing.
iii. That by reason of Order 45 Rule 6 of the Rules of Anambra State High Court and Order 3 Rule 2 of the same Rules, time for the filing and service of pleadings which by the rules do not run during that period of vacation necessarily extend to the Writ of Summons issued at the time the High Court was/is on vacation.
The respondent, through her counsel has argued that the suit filed by appellant vide the Writ of Summons on the 14th September, 2012 caught up Section 20(1) of the Action law Cap 3, Revised Laws of Anambra State, so far as the Suit was filed outside 6 years from the date Plaintiff’s/Appellant’s cause of action accrued to him. He argued that in the determination of the question whether or not an action was Statute barred, reference should be made to the Writ of Summons and the Statement of Claim in order to discover when indeed the cause of action accrued, relative to the day or date the action was instituted. He submitted that the Plaintiff/Appellant filed his case 10 days outside the period of 6 years limited by the law for filing such actions.
Learned counsel for the respondent further argue that provisions like Order 45 Rules 6, Order 3 Rule 2, referred to by the appellant or his counsel are not applicable in the computation of the limitation of action as it relate to this case on appeal rather it is, the Statute of limitation itself read together with the Writ of summons and the Statement of Claim that should be considered as relevant.
At this point you will permit me, to refer to Order 3 Rule 2 (1); Order 45 Rule 6 and such other relevant rules of the High Court referred to by counsel in this matter.
It can be recalled that it was counsel for the appellant who argued that by reason of Order 45 Rule 6 any pleading (whether Statement of Claim or Statement of defence) filed in Court should all stop running from the period the High Court proceeded on vacation. He argued that this provision equally apply to the Writ of Summons since the Writ of Summons and Statement of Claim are inseparable processes when it comes to the commencement of actions in the Court.
Order 3 Rule 2 (a) – (d) provides thus:-
(1) All Civil proceedings commenced by Writ of Summons shall be accompanied by:
(a) Statement of claim.
(b) List of witnesses to be called at the trial.
(c) Written Statement of Oath of the witnesses and
(d) Copies of every document to be relied on at the trial
Documents listed as (a) – (d) above are meant to accompany the Writ of Summons only. Those documents do not commence the suit to which they relate. It is the Writ of Summons and the Writ only that Commences the action.
It follows therefore that it is the Writ of Summons that remains the only method by which civil action are commenced by the Writ. This submission is verifiable: Order 1 Rule 2 defines ‘Court process’ or ‘Process’ to include ‘Wit of Summons, Originating Summons, Originating process, notices, petitions, pleadings, Order, Motions Summons, Warrants and all documents or written communication of which service is required.’
In the computation of time under Order 45 Rule 6, time begins to run only in relation to pleadings and not the Writ of Summons or other processes of Court. Time does not stop running in relation to actions commenced by way of Writ of Summons merely because the High Court or the Judge of the High Court was on vacation. Order 45 Rule 6 of the High Court (Civil Procedure) rules of Anambra State provides thus:-
‘The time for filing and service of pleadings shall not run during the annual vacation unless otherwise directed by the Judge.’
It is a canon of interpretation that: Expressio unius est exclusion alterius, meaning, to express one thing implies the exclusion of the other. Any other Process of Court hence actions commenced by way of the Writ of Summons cannot stop running. Under Order 45 Rule 6 specific mention is made of the filing and service of pleadings only and not the Writ of Summons or any other Process of Court hence actions commenced by way of Writ of Summons cannot stop running merely because the High Court was on vacation. It is not the legislative intent of the draftsmen that the period of vacation of the High Court is a ‘Public of Holiday’ as claimed by the appellant. It is not so expressly provided for by the rules of the High Court of Anambra State hence counsel and litigants alike should be wary in reading meanings into words or provisions which otherwise are clear and such provisions should be accorded their ordinary, natural grammatical meaning and interpretation. See: Olatunde Vs. O.A.U (1998) 5 NWLR (Pt. 549) 178; Osunde Vs. Federal Republic of Nigeria (2000) 12 NWLR (Pt. 682)483.
In any case, the period of the annual vacation of the High Court is not reckoned with by the Public Holiday, Act, Cap 378, Laws of the Federation of Nigeria as a ‘public holiday.’
Section 1 of the said Act provides:
‘1. The days mentioned in the schedule to this Act shall be kept as Public Holidays throughout Nigeria.’
The schedule to the Section then lists the following days as public holidays, to Wit: (1) New Year’s day (2) Good Friday (3) Easter Monday (4)Workers day (May), (5) National Day (1st October), (6) Christmas day (9) such day as the Minister may declare to be public holiday in celebration of the Muslim festival of Id el Kabir. (9) such day as the Minister may declare to be a public holiday in celebration of the birth day of Prophet Mohammed (Id el Maulud).
Section 2 of the Act states as follows:-
(1) In addition to the days mentioned in the Schedule to this Act, the President may by public notice appoint a special day to be kept as [public holiday] either throughout Nigeria or in any part thereof, and any day so appointed shall be kept as a public holiday.
(2) Subject to Section 1 of this Act and sub-section (1) of this section, the Governor of a State may by public notice appoint a special day to be kept as a public holiday in the state concerned or in any part thereof, and any day so appointed shall be kept as public holiday.
Those days declared as ‘Public Holidays’ are work free days. The period of vacation for Judges of the High Court of Anambra State or any state at all is not so expressly mentioned in the Act as a ‘public holiday’ and there is nothing before us to suggest that the Governor of Anambra State has by a proclamation or order made the vacation period of the High Court of Anambra State, a public holiday. See decisions in Anie Vs. Uzorka (1993) NWLR (Pt. 309) 1 or (1993) 9 SC NJ 223 and Daramola Vs. Aribisala (2009) LPELR 8515 (CA).
It follows that in the computation of time for the purpose of determining the time limited by the Action Law of Anambra State, days like, Saturday, Sunday and Public Holidays are excluded in the computation of time. See, Anambra State High Court (Civil Procedure) Rules, Order 44 Rule 1 (b) (2), Section 15 (5) of the Interpretation Act, Ajayi vs. Owolabi (2009) LPELR -3672(CA).
Section 20 of the Action Law Cap 3, Revised Laws of Anambra State, 1991 provides at Sub-Section 1 as follows:
(1) The following action shall not be brought after the expiration of six years from the date the cause of action accrued, that is to say:
(a) Action founded on simple contract or tort
It is common ground that action giving rise to this appeal was founded on tort of malicious prosecution, hence Section 20 (1) of Action Law of Anambra State is relevant to the proceedings of the High Court as a Statute of Limitation but for the statute to have any meaningful impact, the same must be placed side by side with the Originating writ of summons or the Statement of Claim and read together in order to discover the date the cause of action accrued to the claimant and when time begins to run against him.
Incidentally, counsel on both sides are agreed that the cause of action accrued to the appellant on the 4th September, 2006. The substance of the appellant’s complaint are laid out at paragraph 3, 4, 5, 9 and 10 of the Statement of claim but at paragraph 9 in particular, it is averred that;-
‘After a number of adjournment due to the absence in Court of the defendant, on 4th September, 2006, L. A. Kwentoh, counsel for the defendant informed the Court quite honestly that he had not seen the defendant and said he saw no reason enough to continue dragging the plaintiff about. On that day the Court dismissed the case.’
A cause of action is a set of facts which establish or give rise to the right to sue and or the factual situation which gives a party a right to judicial relief. The cause of action in a suit incorporates every fact which will support a party’s right to succeed or to have Judgment of Court in his favour. See Jemibewon V. Kosoko (2010) LPELR-8970 (CA); A/G, Kwara State Vs. National Judicial council (2010) LPELR-5009 (CA); P.N. Udoh Trading Company Vs. Abere (2001) 11 NWLR (Pt. 723) 114, 129.
For the purpose of computation of time in this case, time begins to run against the appellant from the 4th September, 2006. He had six years within which to exercise his right of action in this instance, to institute action for malicious prosecution but which he did only on the 14th September, 2012, ten (10) days outside six years permitted by the Statute of limitation. His claim is thus, Statute barred. A case or action as in this case, is Statute barred when or if it was commenced or initiated after the period within which it can be brought, had expired or lapsed. See: FUT. Minna Vs. Okoh (2011) LPELR-9053 (CA). In such a situation, the Courts lack competence to determine the case: see: SPDC V. Farah (1995) 3 NWLR (Pt. 382) 148; Iweka Vs. Scoa (2000)7 NWLR (PT. 664) 325; Owie Vs. Ighiwi (2005) 1 SC (Pt. 11) 161, 11.
Not only is the jurisdiction of Court ousted by the fact of plaintiff?s delay in bringing the action, he has also lost his right of action. He is simply left with an empty cause of action. This is the sad truth as it relates to this case on appeal, hence issue No. 1 is resolved against the appellant and in favour of respondent.
Peradventure I am wrong in coming to this conclusion, I will move on into issue 2. Did the appellant as plaintiff prove his case for Malicious Prosecution? That is the question I have to find answers to, based on the record of appeal and submissions made by counsel in their respective briefs of argument.
In an action founded on Malicious Prosecution, for the person bringing it to succeed, must plead and lead evidence to prove:
(a) That the defendant put the machinery of prosecution in motion.
(b) That the criminal action ended in favour of the plaintiff.
(c) That the defendant had no reasonable cause to prosecute the accused. Balogun Vs. Amubikahun (1989) 3 NWLR (Pt. 107) 18 or (1989) 4 NWLR 4 SCNJ 219.
(d) That the prosecution is as a result of malice. Ojo vs. Lasisi (2007) NWLR (Pt. 819) 237; Bayol V. Ahemba (1991) 10 NLR (Pt. 623) 818.
It appears to me that there is a consensus between the two counsel on both sides over the ingredients for the tort of Malicious Prosecution which all together must be established to ground liability for malicious prosecution.
See: Bayol Vs Ahemba (1999) 10 NWLR (Pt. 623) 38; Balogun Vs. Amubikehun (1989) NWLR (Pt. 107) 18 or (1989) 4 SC (Pt. 1) 167; Garba vs. Maigoro (1992) 5 NWLR (Pt. 247) 588; Ogbonna Vs. Ogbonna (2014) LPELR 22308 (CA) Eromosele Vs. Keck Wermer (2014) LPELR ? 22183 (CA); Mighty Plastic Industry Ltd Vs. Beneth Okeke (2016) LPELR 41034(CA).
The trial Court after carrying out the exercise of evaluation of evidence of witnesses came to the conclusion and held at page 127 of the record that the plaintiff, now appellant had failed to prove all the ingredients necessary to succeed in a case of malicious prosecution. To that extent the trial Court held that the appellant was/is not entitled to damages.
I am not oblivious of the submissions made by the appellant or counsel in his brief of argument at page 13 to the effect that:
‘From the records, it is undoubted that the first two ingredients were established without any equivocations. The 3rd and 4th ingredients, it is hereby contended, were also equally established when the defendant/respondent failed (as argued above to discharge the onus that properly shifted to her I beg to disagree with the submission made above by the learned counsel for the appellant that the onus shifted to the defendant/respondent to prove the 3rd and 4th ingredients soon after the Plaintiff/Appellant succeeded to lead evidence to prove the 1st and 2nd ingredients of malicious prosecution earlier set out and itemised in the course of this Judgment. That is a wrong approach. It is tantamount to shifting the burden of proof to the defendant/respondent contrary to the stipulation at Sections 131, 132 and 133(1) of the Evidence Act, 2011, Cap E.14. It is only when the claimant or the plaintiff has successfully discharged the duty on him to lead evidence in proof of his case relative to all the 4 (four) ingredients identified for establishing a case of malicious prosecution that the onus now shifts to the defendant/respondent under Section 133 (2) of the Evidence Act to disprove the claim.
There is no gainsaying that the defendant/respondent put the machinery of prosecution in motion of the fact that she lodged a report or complaint with the Police. This fact was established in evidence but it is wrong to assert that the respondent propelled or compelled the Police to prosecute the plaintiff at the magistrate Court. There is no evidence to that effect that it was the respondent who instigated the actual prosecution of the plaintiff. There is also evidence by virtue of Exhibits ‘B’ and ‘C’, the proceeding of the Chief Magistrate Court sitting at Atani, that the case was determined in favour of the plaintiff/appellant.
I do not think that the nature of the order resulting in the termination of the case really matter. It could be by way of an order of discharge simpliciter, or an order of discharge and acquittal as held in Ejikeme vs. Nwosu (2002) 3 NWLR (Pt. 954) 354 (CA); Mighty Plastic Industry Ltd Vs. Benneth Okeke (2016) 41034 (CA). What really matters in my view, is that the criminal prosecution terminated in favour of the plaintiff/appellant. See Ogbonna Vs. Ogbonna (2014) LPELR – 22308 (CA); Eromosele Vs. Keck Wermer (2014) LPELR – 22183 (CA); Garba Vs. Maigoro (supra); Bayol Vs. Ahemba (supra); Balogun Vs. Amubikahun (supra). This order terminating the case is evidenced by Exhibits ‘B’ and ‘C’.
In relation to the 3rd and 4th ingredients for establishing the case of Malicious Prosecution, the plaintiff/appellant was completely detached and thus he failed to proffer evidence in that regard. He had indeed failed to establish a case of Malicious Prosecution against the respondent, the consequence of which is that he is not entitled to any remedy for award of damages in his favour hence I subscribe to the findings made at the Court below in this regard.
Issues 1 and 2 are both resolved against the appellant and in favour of the respondent. The appeal is dismissed and the Judgment delivered at the trial High Court on the 10th September, 2013, striking out Suit No. 0/248/2012 for want of competence, is affirmed by me. Cost in the sum of N100,000. 00 is assessed against the appellant and in favour of the respondent.
Ordered accordingly.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity of reading in draft form the leading judgment in this appeal just delivered by my learned Brother, Saidu Tanko Husaini, J.C.A.
I agree completely with His Lordship’s line of reasoning and the conclusion reached in the said leading judgment that the appeal is bereft of merits. I also dismiss the appeal and abide by all the consequential orders made therein.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned brother SAIDU TANKO HUSAINI JCA.
For the reasons contained in the lead judgment which I adopt as mine, I too dismiss the appeal.
I abide by other orders made in the lead judgment.
Appearances:
Chief John Oge, Esq.For Appellant(s)
O. Anumonye, Esq.For Respondent(s)
