Peter Ebenighe V. Livinus Achi (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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.