Chief S. S. Ejikeme V. Basil Nwosu (2001)

LawGlobal-Hub Lead Judgment Report

OBADINA, J.C.A.

This is an appeal against the judgment of the High Court of Benue State sitting at Katsina-Ala, presided by EKO, J. delivered on the 11th July, 1994 in suit No. KHC/42/93. At the trial court, the respondent was the plaintiff, while the appellant was the defendant.

On the 23rd of September, 1992 at about 1.55 am, some unknown persons broke into the compound of the appellant and set ablaze his petrol tanker, Reg. No. GG 6666 WK. The fire was however put out. The following day the appellant reported the matter at Katsina-Ala Police Station. The police in the course of their investigation arrested the respondent on the 25th of September, 1992, detained him at the Police Station until 30th September, 1992, when he was arraigned before the Upper Area Court, Katsina-Ala on allegation of mischief by fire. On the 5th of July, 1993, the respondent was discharged following an advice from the State Ministry of Justice.

On the 19th of August, 1993, the respondent as plaintiff took out a writ of summons at Katsina-Ala High Court against the appellant and one Sergeant A.I. Abur claiming a total sum of (N500,000) Five hundred thousand Naira, aggravated damages for:

(a) Defamation;

(b) Malicious prosecution; and

(c) wrongful or unlawful detention.

The appellant filed a statement of defence against the action, denying the allegations. The case went into full trial and parties called their respective witnesses. In his reserved judgment, the learned trial Judge found the appellant liable of malicious prosecution and awarded (N35,000) thirty-five thousand naira damages.

Dissatisfied with the judgment, the appellant filed this appeal to this court on four (4) grounds of appeal. From the four (4) grounds of appeal, the appellant formulated three (3) issues for determination, namely:

“(1) Whether or not a case of malicious prosecution was made out to warrant the award of N35,000 against the appellant?.

(2) Whether or not malicious prosecution as a cause of action was raised in the writ of summons? and if the answer is in the negative, can the issue of malicious prosecution be raised in the statement of claim and amended statement of claim without an amendment of the writ?.

(3) Whether or not the sum of N35,000.00 damages was extremely very high?.”

From the same four grounds of appeal filed by the appellants the respondent formulated six (6) issues for determination. The issues are as follows:

“(1) Whether the appellant set in motion the law against the respondent by the appellant’s report to the police at Katsina-Ala Nigeria Police Station or whether appellant prosecuted the respondent?.