Alhaji Kareem Ishola V. Alhaji Azeez Ishola & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SOTONYE DENTON WEST, J.C.A. (Delivering the Leading Judgment)

This appeal is against the decision delivered on 10/06/2008 by the High Court of Osogbo, Osun State (hereinafter simply referred to as “the lower court”) presided over by Hon. Justice F.O. Ogunsola (hereinafter simply referred to as “the learned trial Judge”) wherein his lordship dismissed the plaintiff/appellant suit against the defendants/respondents for malicious prosecution.

The plaintiff/appellant hereinafter referred to as the appellant brought at the lower court a claim against the defendant jointly and severally; N6,000,000.00 (Six Million Naira) general damages for malicious prosecution of the appellant by the respondents through a trumped-up charge vide Charge No. MFP/IC/2002 – Commissioner Of Police vs. Alhaji Kareem Ishola before Ifon-Osun Magistrate Court, Osun State between 24/01/2002 and 6/8/2002 which trial resulted in the discharge and acquittal of the plaintiff.

Both parties gave evidence in furtherance of their case and called witnesses.

The appellant, in his evidence-in-chief as P.W.1 gave evidence of how he attempted to deliver the malaria drugs he brought to one Madam Adeniwe at the request of P.W.2, known as Mr. Bakare Adeyemi, aka Atura. He testified that in the process of locating the old woman’s residence, he went to the house of the respondent who was at that time in the mosque.

He approached the 2nd respondent for assistance in locating the house of the respondent as he could not locate either the house of the 1st or 2nd respondent. Eventually the respondent arrived and both went inside the home of 1st respondent. According to his testimony they placed a gourd (ado) near the chair on which he sat and asked him to pick it up which he refused doing. He was subsequently arrested and locked up by the police at the police station.

He informed the court that there had been series of litigation between PW1 – Bakare Adeyemi aka Atura and the 1st and 2nd Respondent. He was charged to court as a result of this incidence but was later discharged and acquitted.

The appellant further testified that he instituted this present action because he sustained financial loss. He had pledged his farm and also that his children could not go to school because of expenses of litigation, which according to him accrued to the tune of N50,000.00

The appellant as PW1 was cross-examined and under cross-examination, he told the court that he did not know Adeniwe’s house and that was why he requested for the 2nd respondent as DW2 to take him there. In his words he said:

“I needed to ask for the particular house of Madam Adeniwe because of the fact that it was night time and I am not familiar with the Alapupu’s compound. One can forget the description along the line.

The house of Adeniwe and 2nd defendant are besides each other”

The appellant as PW1 testified that he was aware of the land dispute between Atura (PW2) and the Alapupu family of the respondents. He acknowledged being aware of a threat to life of a member of Alapupu family with a gun by the said Atura (PW2). He however denied knowledge of restraining order on Atura (PW2) from visiting the Alapupu’s compound. Likewise he said he was unaware that Atura (PW2) and the Alapupu family were enemies until that day 14/8/2001. He also said he was the person fully responsible for prosecuting this instant case and not Atura (PW2).

The PW2, also known as Bakara Adeyemi, aka Atura, a mechanic by profession on 14/8/2011, testified that sequel to his promise to send malaria drugs to Madam Adeniwe who was ill with malaria, it was he who sent the appellant to deliver the drugs to her at around 8.20 p.m. and he did not return until 10p.m

According to his testimony, on discovering the failure of delivery of his errand, he went and enquired at the police station and subsequently the appellant was charged to court but was later discharged and acquitted.