Ali Maina Mobar V. Ibrahim Ali (2001)

LawGlobal-Hub Lead Judgment Report

A. MANGAJI, J.C.A.

On 15th June, 1998 Hon. Justice I. S. Bdliya delivered a judgment in Suit No. M/92/97 wherein he dismissed the claim filed by the appellant as plaintiff against the respondent. His reason for so dismissing the claim was that the appellant totally failed to prove his case as no evidence was adduced during the trial establishing the averments contained in the pleading. The appellant was aggrieved by the decision.

He accordingly filed a notice of appeal containing two grounds dated 26/6/98.

In due compliance with the rules of this court, parties by their counsel, filed and exchanged briefs of argument. In the appellant’s brief of argument, two issues were identified as arising for determination from the two grounds of appeal.

The issues are couched thus:-

“(1) Whether the trial court is legally right to have dismissed the plaintiff’s claim inspite of the admitted facts in paragraph 6 of the appellant’s statement of claim and paragraph 5(b) of the statement of defence; (sic) without regard to the principle of law that facts admitted need no further proof.

(b) Whether from the circumstances of this case the appellant had led evidence in proving his unlawful arrest and detention so as to entitle him to obtain judgment before the trial court.”

The respondent on his part identified two, but very dissimilar issues. The issues are:

(a) Whether the learned trial Judge was right in holding that mere complaint to the Police is not sufficient to warrant a liability on the part of the respondent.

(b) Whether the learned trial Judge correctly directed himself as to the main issues before the court having regard to the pleadings and weight of evidence.”

Dissimilar as the two sets of issues are, the consideration of each set will definitely determine the controversy involved in the other. Which is to say that whichever set of issues is considered, the determination of it will inevitably answer the other set of issues. I shall in the event consider the issues formulated by the appellant and in doing so address the issues identified by the respondent.

The facts which resulted in the taking of the writ of summons by the plaintiff appear simple and straight forward. The defendant had a disagreement with the appellant over an alleged debt. The defendant said the plaintiff owned him the sum N22,000.00. As a result, the defendant filed an action against the plaintiff at the Upper Area Court, Maiduguri claiming the said sum. At that Court, and supposedly applying Islamic law of evidence, the Upper Area Court gave the plaintiff the Holy Quran to subscribe to in denial of the debt. Plaintiff accordingly swore on the Holy Quran and the suit was dismissed. The defendant’s case was that after the decision of the Upper Area Court and whenever by chance he met the plaintiff, the latter would abuse him in Kanuri language to the hearing of the public likening him to a thief and “wizard.” Defendant said whenever the plaintiff made those invectives his blood pressure would rise and cause him considerable worry. Not able to bear it, the defendant reported the plaintiff at the Bulaburin Police Station soliciting for the intervention of the Police. In his words, “I told the Police I was after peace. I wanted the Police to settle me and the plaintiff.”

With the intervention of the Police and defendant’s friends, the plaintiff and the defendant signed a truce to maintain cordial relationship among them.

The plaintiff, after leaving the Police Station, decided to take a writ of summons against the defendant claiming the following reliefs:

The sum of N500,000.00 general damages done to the plaintiff’s character, person and business.

(c) An order restraining the defendant from further accusing or embarrassing the plaintiff in anyway or form.

An order directing the defendant to tender a public apology to the plaintiff through the media house.

(d) Any order or further orders.”

At the court below, parties filed and exchanged pleadings after same had been ordered. They equally led evidence. On 8/6/98 therefore judgment in the suit was adjourned to 12th June, 1998. Three days after the date adjourned for judgment, the learned trial Judge delivered his decision effectively dismissing the plaintiff’s claim in its entirety. The learned trial Judge, in his well considered judgment, concluded as follows:

“If the Police decided to invite the plaintiff to the Police Station that was their own right to do so. For the Police are carrying out their duties as conferred on them by the law. So even if the plaintiff incurred losses on the invited to the Police Station because he could not sell his goods, I can not see how the defendant could be held liable in damages. So, in sum, the 1st claim of the plaintiff fails. The 2nd claim is to restrain the defendant from further accusing or embarrassing the plaintiff in any way or form. I have not found the defendant and have accused or embarrassed the plaintiff.

I do not think is in any ground to grant this relief.

Same also fails. The 3rd claim is to order the defendant to tender public apology to the plaintiff through the media house. The plaintiff, on the evidence has not established that the defendant showered abuses on him or did anything in any way or from causing embarrassment to the plaintiff. In view of the future of the 1st and 2nd claims, this claim also fails. The last claim for any order or further orders has no basis on the facts and the evidence before this court same also cannot be granted.

All in all the plaintiff’s claims be and are hereby dismissed for there is no evidence proving same.”

It is against the above that the plaintiff appealed to this court raising the two issues which he formulated and which I shall consider anon. I should however point out that, I shall henceforth refer to the plaintiff as “appellant,” and the defendant as “respondent” respectively for ease of considering the appeal.

In his argument as contained in the brief, learned counsel submitted that by paragraph 5(b) of the statement of defence, respondent had admitted paragraph 6 of the statement of claim to the effectthat it was by reason of the complaint lodged by the respondent that the appellant “was arrested and detained at the Bulaburin Police Station in Maiduguri.” He submitted that facts admitted need no proof and relied for so saying on Section 75 of the Evidence Act, 1990. Continuing learned counsel referred to the evidence of PW1, PW2 and DW2 and submitted that their effect had established that the appellant was reported to the Police by the respondent and in consequence of which he was arrested and detained at the Police Station for a day.”

Further, learned counsel submitted that the learned trial Judge was wrong in holding that the mere lodgment of a complaint to the Police is not sufficient to establish liability on the part of the respondent in an action based on malicious prosecution. He posits that the learned trial Judge had “mixed up” the cause of action initiated by the appellant. He said the appellant’s case was for unlawful arrest and detention and not malicious prosecution, He said that the case of CCB Ltd. v. Odogwu (1990) 3 NWLR (Pt.140) 646 cited and relied upon by the learned trial judge is inapplicable to the case at hand. He relied for so submitting on the case of lyaleklue v. Omoregbe (1991) 3 NWLR (Pt. 177) 94 at 104-105. He explained that the appellant’s case was “the wrongfulness in the act of his (appellant’s) arrest and detention upon the initiative complaint of the respondent to the Police without lawful justification.” Continuing, learned counsel reproduced a portion of the respondent’s evidence and submitted that although the respondent’s complaint to the Police was for it to intervene and settle the parties, it is ironical that the appellant was detained for almost a whole day at the Police Station.” He submitted that a defendant may be liable for false imprisonment or unlawful detention. “notwithstanding the fact that he did not personally detain or restrain the plaintiff but because such was carried out through the intermediary who exercised no independent discretion.”

At this juncture,learned counsel urged that this court should order a retrial of the suit before the court below. This he said is because, “the appellant mistakenly gave evidence at variance with part of his pleadings (sic) but the fact pleaded which evidence was not led in support was admitted by the opponent.” He continued and justified his stand when he said:

“The plaintiff denied abusing me when the Police asked him if it were true that he has been abusing me. From the statement in evidence of the respondent it was clear that it was not a case to be prosecuted he took to the Police but for settlement, it is ironical that the appellant was detained for almost a whole day at the Police Station.

It is our submission that sometimes a defendant may be liable for false imprisonment or unlawful detention notwithstanding the fact that he did not personally detain or restrain the plaintiff but because such was carried out through an intermediary who exercised no independent discretion.”

He urged this court to order for retrial of the suit at the court below.

On his part, learned counsel for the respondent submitted that the learned trial Judge was right in his finding that mere lodging of a complaint to the Police without more is no ground for holding the respondent liable for unlawful arrest and detention. He is of the view that going by the appellant’s complaint his case was built around the tort of malicious prosecution and defamation. Learned counsel perused the evidence on record and related same to the appellant’s pleading. His conclusion is that the appellant’s case was clearly that of allegation of malicious prosecution.

Further, Learned counsel pointed out that even the appellant, while giving evidence admitted that he was ‘invited by the Police’, to follow him to the Police Station. He submitted therefore that the respondent only lodged his complaint but that how the policeman had gone about carrying out his duties was entirely within his province.

He relied on CCB (Nig.) Ltd. v. Odogwu supra. Learned counsel submitted that the learned trial Judge was right in basing his judgment on the tort of malicious prosecution since the appellant’s pleading did not disclose any case nor did the evidence disclose acts bordering on false imprisonment.

Still in submissions, learned counsel urged this court to refuse the appellant the retrial order he sought. He submitted that an order of retrial is inappropriate where a plaintiff, (as in this case) has totally failed to prove the case he presented in his pleading. He relied on Onyenma v. Amah (1988) 1NWLR (Pt.73) 772 at 774. He urged that this issue be resolved against the appellant.

The controversy presented under this issue centred around two matters. Firstly, whether by paragraph 5(b) of the statement of defence, the respondent did admit the contents of paragraph 6 of the statement of claim. Secondly, whether the case presented by the appellant in his pleading was that of unlawful arrest and detention.

It is therefore worthwhile to examine the pleadings in order to ascertain their import. Paragraph 6 of the statement of claim reads as follows:

“The plaintiff again states that the defendant took him to the Police Station and made false allegation against him but the Police having investigated the matter discovered that the allegation was false and thereby dismissed the complain. (Sic)”

Paragraph 5(b) of the statement of defence on the other hand is to the following effect:

“(5)(b) Sequel to paragraph (a) above, the defendant lodged a complaint against the plaintiff at the Bulaburin Police Station, Maiduguri and the plaintiff was invited there.”

Now, from the above pleadings, where is the admission that “the appellant was arrested and detained at the Bulaburin Police Station, Maiduguri upon the complaint of the respondent to the Police.”

As a matter of fact, paragraph 6 of the statement of claim did not allege that the appellant was arrested and detained by the Police upon a complaint by the respondent just as there is no such averment in the whole of the statement of claim. I should perhaps reproduce the whole of the statement of claim to underscore the point. It runs thus:-

“STATEMENT OF CLAIM

1.The plaintiff is a trader at Monday Market Maiduguri and resides in Zajari Ward Maiduguri within the jurisdiction of this honourable Court.

2.The defendant also is a business man and resides in Zajari Ward Maiduguri within the samejurisdiction.

3.The plaintiff avers that the defendant on several accounts and for no reasons has been casting and showering abuses on him, in the presence of his customers wives and children.

4.The plaintiff avers that the defendant always claimed to have been abused but could not prove same.

5.The plaintiff states also that sometimes in June 1992, the defendant took him to court and made a false claim against him before the Upper Area Court 1 Maiduguri, and upon making his purported claim, the matter was adjourned to prove his case but he did not continue with his case before court and finally the Judge died, this was all done by the defendant in a drive to suffer the plaintiff some financial loss, and moral discomfort. The plaintiff shall rely on the part of proceedings of the record of Upper Area Court 1, Maiduguri, and same is hereby pleaded.

6.The plaintiff again states that the defendant took him to Police Station and made false allegation against him but the Police having investigated the matter discovered that the allegation was false and thereby dismissed the complain.

7. The plaintiff states that he is married to 2 wives and ten children, he commands respect before all who knew him and his customers.
8. The defendant refused to apologise despite persistent call by neighbours and other respectable elders.
9. The plaintiff maintains that by the said false allegation and accusations by the defendant, the plaintiff’s reputation, respect, integrity and goodwill built up by him over the years have crumbled.
10. The plaintiff further states that the defendant’s malicious accusation was made in utmost bad faith and for improper motive was calculated to destroy the good image and intergrity and his business.
11. WHEREOF the plaintiff claims:-

(a) The sum of N500,00 general damages, done to the plaintiff’s character, person and business.

(b) An order restraining the defendant from further accusing or embarrassing the plaintiff in anyway or form.

(c) An order directing the defendant to tender a public apology to the plaintiff through the media house.

(d) Any order or further orders.”

Matters presented for adjudication by parties are by no means disputes that are left to the court to surmise. It is not for the court below, in the circumstances of the above statement of claim to assume that the case presented is that of unlawful arrest and detention.

It is clear as crystal that unlawful arrest and/or detention were not mentioned; neither were there averments from which to infer that the appellant was unlawfully arrested and/or detained. The only evidence which established that appellant was invited to the Police Station came from his mouth. Said he as can be found at pages 9 to 10 of the record:

“One day my customer came to my shop. The defendant came with a Policeman. I was invited by the Policeman to follow him. I left the shop with no one in charge. I asked to follow the Policeman to the Station. It was Bulaburin Police Station. At the Station, I was told the defendant lodged a complaint against me. I asked for what, I was told the defendant complained against me. After investigation, the Policeman allowed me to go. I stayed at the Station for the whole day. I did not transact business on that day. When I return to the shop, all my customers had gone. They said I was not trust worthy.”

Clearly, the appellant said it was the Police that invited him to the Police Station and that he obliged. But it must be made clear that parties as well as the court are bound by the pleadings filed.

Anyawu v. Iwuchukwu (2000) 15 NWLR (Pt. 692) 721. A Court of law is therefore admonished to be on guard so that it does not deviate from the case made by each party in the pleadings, otherwise it will unwittingly be making for parties an entirely new case.See Ibanga & Ors. v. Chief Usanga (1982) 5 SC 103 at 124,130; Okpala E & Anor. v. Dereke-Solar (1986) 4 SC 141 at 189-193; Lipede v. Sonekan (1995) 1 NWLR (Pt.374) 668.

To be fair to the learned trial Judge, in delivering his judgment, he never distinguished malicious prosecution from unlawful arrest and based his decision on the former. The distinction was introduced by learned counsel for the appellant and for no justifiable reason. All that the learned trial Judge did, and rightly too in my view was to consider the pleading of the appellant and the reliefs he sought in the light of the evidence led and arrived at definite findings.

Perhaps it is worthwhile to consider the complaint learned counsel raised in his brief to the effect that appellant’s claim was on unlawful arrest and detention. I have earlier on reproduced the statement of claim. There is clearly no averment contained therein which complained about unlawful arrest or detention. Neither is there positive evidence to that effect. The issue of unlawful arrest and detention came about during the addresses of counsel. In making a finding on it, the learned trial Judge reasoned as follows:-

“I am in full agreement with the learned counsel to the defendant that mere complaining to the Police without doing more could be a ground for liability if the Police acted on the report and decided to take an action. If a person does no more than to tell a story to the Police hearing it to the Police to decide whether the facts amount to any defence, that person does not set the law in motion against the person prosecuted by the Police.”

I think the above finding is correct. By so saying the learned trial Judge only reiterated the obvious state of our law that no liability attaches to a private person who merely points at a suspect. The law is equally same where a person merely indicated to the Police a possible suspect. See Adefunmilayo v. Oduntan (1958) WNLR 31; Gbajor v. Ogunburegu (1961) 1 All NLR (Pt.1) 853; Ezeadukwa v. Maduka (1997) 8 NWLR (Pt. 518) 635 at 667.

So the distinction learned counsel made about the learned trial Judge basing his decision on the tort of malicious prosecution rather than unlawful arrest and detention is simply idle. It is much about nothing. Neither did the learned trial Judge say so in his judgment nor can it be discerned therefrom. As I showed, the learned trial Judge trailed the path of honour and considered the appellant’s claim one item after the other and made his findings accordingly. The distinction between malicious prosecution and unlawful arrest and prosecution was an innovation introduced by learned counsel for the appellant. -The learned trial Judge was not duty bound to read the appellant’s pleading and to determine the classification of the tort the appellant desired to claim. It was his duty to aver whether he was unlawfully arrested and detained and how such acts came about. This, he failed to explicitely aver and prove. What is clear however, is that he claimed general damages for injury done “to the plaintiff’s character, person and business.” Remarkably, that is a claim based on defamation.

But that claim found no supporting evidence. No evidence was led to prove what the respondent said or did which impugned on the character of the appellant or his business. After a very careful consideration of the evidence led, the learned trial Judge rightly made the following findings contained at page 24 of the record. He said:-

“The plaintiff claims N500,000 for damages to his character, person and business. I am unable to fish out any iota of evidence on the damage to his character, person and business. The averments in paragraph 3, of the statement of claim has not been proved by evidence. Indeed, none of the witnesses who testified for the plaintiff told the court that the defendant abused the plaintiff.

In paragraph 3 of the statement of claim, the plaintiff averred as follows:

‘3. The plaintiff avers that the defendant on several accounts and for no reasons been casting and showering abuses on him, in the presences of his customers, wives and children.’

I have not been able to find any scintilla of evidence proving the averments in paragraph 3 which has been reproduced supra. The customers, wives and children before whom the plaintiff alleged the defendant showered abuses on him were not called as witnesses.

In fact PW3, who said he is the son of the plaintiff did not testify that the defendants showered abuses on his father. Regarding the damage to the character and person of the plaintiff, in view of what I have had said supra, I do not think the claim can succeed. Also on the claim regarding cost of business. The defendant did not invite the plaintiff to Police Station. All that he did was to lodge a complaint before the police. It was the Police that invited him to the Police Station. This is supported by the evidence of the plaintiff, PW2 and PW3.”

The above finding is in my view correct. Learned counsel argued so strenuously that the appellant’s case before the court below was for “the wrongfulness in the act of his arrest and detention upon the initiative complaint of the respondent to the Police without lawful justification.” With respect, the case now being built by learned counsel was not the case clearly presented by the appellant. The averments of the appellant did not show that he was unlawfully arrested or detained. Neither was there any evidence to that effect.

Appellant’s pleading failed to aver what false allegation were made against him by the respondent and how they were found to be false.

Equally no evidence was led to establish any false accusation made against him. In the circumstance, it was not within the powers of the court below to assume that there was indeed false allegation made by the respondent against the appellant by reason only of the invitation of the latter by the Police. See Ayoke v. Bello (1992) I NWLR (Pt.218) 380 at 384. Similarly, no evidence whatsoever was led to establish how and to what extent his character and his person had been injured by the false allegation alluded to. Aside from the evidence led by PW3 (appellant’s son) about the daily sales usually recorded in the appellant’s business, no evidence was led to show how on a specific day, his said business suffered set back by reason of the purported false allegations levelled against him by the respondent.

As it appeared from the appellant’s pleading and the evidence led, every material fact that was needed to be pleaded and established had been consigned to assumption. Our legal system does not permit the court to assume the existence of material facts.

Every material allegation of fact a party desires to lead evidence to establish must be averred positively, precisely and clearly. (See Order 25 of the Borno State High Court (Civil Procedure) Rules, 1987). In the face of the appellant’s pleading which, as it appears clear from learned counsel’s submissions did not present the material facts appellant desired to present and taking into account the wishy-washy state of the evidence led, the learned trial Judge was absolutely correct in finding that the appellant had failed to prove his case. See BRTC v. Egbuonu (1991) 2 NWLR (Pt. 171) 81 at 83.

I am amazed that learned counsel for the appellant identified a situation recognised by law in which a person who did not personally detain or restrain a complainant, will nevertheless be liable for false imprisonment or unlawful detention but failed to relate the principle to the facts and circumstances of the suit on hand. Let me quote learned counsel:

“It is our submission that sometimes a defendant may be liable for false imprisonment or unlawful detention notwithstanding the fact that he did not personally detain or restrain the plaintiff but because such was carried out through an intermediary who exercised no independent discretion.”

It is remarkable to note that the appellant did not allege that the Police acted (during the period he was at the Bulaburin Police Station) without independent discretion and was pushed into doing what was done at the pressure and insistence of the respondent. So learned counsel’s submission in my view, is meant to establish a distinction without a difference. Learned counsel prayed this court to order a retrial of the suit.

His ground for so submitting is contained at page 5 of the appellant’s brief. I shall quote learned counsel:-

“It is our submission that the appellant mistakingly believes that the totality of his pleadings to which he was led in evidence by his fromer counsel tally with oral evidence in entirety, such a mistakeable omission can be put right by a new trial as this honourable court is empowered to so order.”

It is ridiculous in the least for learned counsel to submit that because appellant was of the mistaken belief that the evidence he led established his case in his pleading when it was not so, and for that reason there should be a retrial. That cannot be the law. In any event the appellant (as a witness) is not saying in this appeal that he had made a mistake on a most important matter which he wished to put aright by fresh evidence. Odiase v.Omele (1985) 3 NWLR (Pt.11) 82 at 83. The issue of adducing fresh evidence has not been presented in this appeal. Most importantly, the learned trial Judge did hold that the appellant’s claim had totally failed. He accordingly dismissed same. In the face of the complete dismissal of the appellant’s suit, there cannot be any basis for a retrial. It must be stressed that when it is manifest (as in this appeal) that the plaintiff’s case has failed in toto and that no irregularity of a substantial nature is apparent on the record shown to the court, a retrial order will not be made. See Ayoola v. Adebayo (1969) I All NLR 159; Mogaji v .Odofin (1978) 4 SC 91. Solomon v. Magaji (1982) II SC I at 24.

As I noted the appellant’s claim had totally failed and the learned trial Judge rightly found so. There is thus no basis for any retrial. From what I have said above, this issue must be and is hereby resolved against the appellant. The learned trial Judge was absolutely right in dismissing the appellant’s claim. Issue No. I having failed, ground I of the grounds of appeal from which it was identified understandably also failed.

Issue No. 2 posits the question whether the appellant had led evidence in proving his unlawful arrest and detention so as to be entitled to judgment. In arguing the issue, learned counsel for the appellant made excerpts from the evidence led by 1st PW and 2nd PW and submitted that it was at the instance of the respondent that the appellant was arrested and detained. He further submitted that, “the action of the Police in arresting and detaining the appellant was based on the instruction of the respondent who lodged false complaint against the appellant.” He urged this court to order a retrial 112 Nigerian Weekly Law Reports 7th January, 2002 (Mogaji, J.C.A.) because the learned trial Judge “mixed up” the cause of action.

In his brief of argument, learned counsel for the appellant submitted that the learned trial Judge was right in all his findings. He prayed this court not to disturb any of the findings, Further learned counsel submitted that issues of unlawful arrest and detention not being matters over which there is any averment, the learned trial Judge was not bound to consider them, as to do so would tantamount to embarking on a voyage of discovery. He cited in support Ajikawo v. Ansaldo (Nig.) Lid (1991)2 NWLR (Pt. 173 ) 360 at 372 and BRTC v. Egbuonu (1991) 2 NWLR (Pt. 171) 81 at 83.

On the question of ordering a retrial, leamed counsel submitted that it is inappropriate in this appeal because appellant’s claim had failed in toto and to so order will only allow the appellant to unjustifiably relitigate the suit. He said that will inevitably result in miscarriage of justice. He urged this court to dismiss the appeal.

While considering the first relief claimed by the appellant i.e. the sum of N500,000.00 general damages done to the plaintiff’s character, person and business, the learned trial Judge found as follows:

“I have not been able to find any scintilla of evidence proving the averments in paragraph 3 which has been reproduced supra. The customers wives and children before whom the plaintiff alleged the defendant showered abuses on him were not called as witnesses. In fact, PW3 who said he is the son of the plaintiff did not testify that the defendant showered abuses on his father… (See page 24 of the Record) … The defendant did not invite the plaintiff to the Police Station. All that he did was to lodge a complaint before the Police. It was the Police that invited him to the Police Station. This is supported by the evidence of the plaintiff, PW2 and PW3 for the police are causing out their duties as conferred on them by the law.

… So even if the plaintiff incurred losses on the day he was invited to the Police Station because he could not sell his goods, I cannot see how the defendant could be held liable in damages”

Learned trial Judge’s finding above cannot be faulted given the state of the pleadings and the evidence on record.

The second relief claimed by the appellant was for “an order restraining the defendant from further accusing or, embarrassing the plaintiff in any way or form.” Understandably, the relief is predicated on assumed false allegation the respondent lodged to the Police against the appellant. What that false allegation is remains an old woman’s tale. The appellant kept it secret to himself. He neither averred in his pleading what it was that was said about him which was false nor gave evidence of facts to show that the respondent made wild and utterly false allegation about his person which caused him embarrassment.

The learned trial Judge, rightly too in my view found no evidence of any accusations levelled against the appellant by the respondent (see page 24 of the record.) He found no evidence that the respondent “showered abuses” on the appellant as averred in paragraphs 3 and 6 of the statement of claim. Infact, what words were purportedly used by the respondent against the appellant from which one would find them embarrassing were neither averred nor given in evidence.

In view of the above, the learned trial Judge found as follows:

“I have not found the defendant and have (sic) accused or embarrassed the plaintiff. I do not think is in any ground to grant this relief. Same also fails.” (See Pages 24 and 25 of the record)

That finding to my mind is sound. No order can be made to restrain a person from accusing or embarrassing another when there is no evidence that he ever accused or embarrassed that other person.

In the face of the pleading and evidence led, the learned trial Judge was absolutely correct to have declined to make the order sought.

On the last relief sought, the learned trial Judge rightly found as follows:

“The 3rd claim is to order the defendant to tender public apology to the plaintiff through the media house. The plaintiff on the evidence has not established that the defendant showered abuses on him or did anything in anyway or form causing embarrassment to the plaintiff. In view of the future (sic) of the 1st and 2nd claim. This claim also fails… All in all the plaintiff’s claims be are (sic) hereby dismissed for there is no evidence proving same.”

If there was no evidence as indeed it is, so be it. The only conclusion in the circumstance cannot be anything but that arrived at by the learned trial Judge. I too would have arrived at the same finding given the complete failure of the appellant to lead evidence in proof of the relief he claimed.

Now apart from the above reliefs claimed by the appellant, where does the question of unlawful arrest and detention reared its face? I cannot in all honesty find any paragraph in the appellant’s pleading which specifically raised the issue of unlawful arrest and detention. The only paragraph that can be likened to it may be paragraph 6.

But even that paragraph concentrated its complaint not on unlawful arrest and detention but false allegation. Clearly appellant had failed to make unlawful arrest and detention a ground in his action.

The court therefore was right not to consider same since in civil matters it is not the duty of the court to make up a case for a party. See Ajikawo v. Ansalfo (Nig.) Ltd. Supra and Ayoke v. Bello supra both cases cited by learned counsel for the respondent.

I have fairly dealt with the issue of retrial raised by learned counsel for the appellant under the first issue and I think I need not reconsider same under this issue. The obvious finding of the learned trial Judge is that the appellant’s claim had totally failed. He accordingly dismissed it. The law is trite that a retrial is not appropriate where a plaintiff’s case has totally failed. See Abibu v. Bintu (1988)1 NWLR (Pt. 68) 57; Awote v. Owodunni (No.2) (1987) 2 NWLR (Pt.57) 366.

I am satisfied that under the above circumstance, it will lead to absolute miscarriage of justice should an opportunity be given to the appellant to relitigate the suit. See: Ayoola v. Adebayo (1969) 1 All NLR 159; Evokororo v. State (1969) 6-9 SC 3.

In the event, I find no justifiable reason why I should order a retrial of the appellant’s suit having regard especially to the fact that the learned trial Judge had adequately and correctly dealt with all the issues involved. This issue, like the first one should be resolved against the appellant. The simple answer to the issue is that the appellant had failed to lead evidence to prove unlawful arrest and detention. The issue and ground II of the grounds of appeal from which it is formulated fail.

On the whole this appeal totally lacks merit. It is hereby accordingly dismissed. The judgment of Bdliya J. before the High Court of Justice, Borno in suit No, M/92/97 dated 15th June, 1998 is hereby affirmed.

There shall be N5.000,00 costs against the appellant and in the favour of the respondent.

Other Citations: (2001)LCN/1015(CA)