Chiabee Bayol V Iorkighir Ahemba (1999)

LAWGLOBAL HUB Lead Judgment Report

ACHIKE, J.S.C

On the 20th of December 1985 the Defendant made a report against the Plaintiff to the Police at Ikyogen, Kwande Local Government Area of Benue State alleging that the Plaintiff with his two wives and his brother went to the Defendant rice farm to steal his rice by harvesting the rice thereon. Consequent to the said report, the Plaintiff with his wives and brother were arrested and prosecuted at the Upper Area Court Adikpo on a First Information Report alleging theft of the Defendant’s rice. The Plaintiff and all the accused persons were however discharged.

Consequent upon the termination of the criminal proceedings, the Plaintiff instituted a civil suit against the Defendant at the Katsina-Ala High court claiming N25,000.00 general and special damages for malicious prosecution. In proof that the criminal prosecution terminated in his favour, the Plaintiff tendered the record of proceedings of the criminal trial which was admitted in evidence as Exhibit 1. At the conclusion of the hearing and after counsel’s addresses, the learned trial Judge dismissed the Plaintiff’s claim in its entirety.

The Plaintiff, then as Appellant, appealed to the Court of Appeal relying on seven grounds of appeal. The Court of Appeal, after due hearing, dismissed the appeal and thereby affirmed the decision of the learned trial Judge. That court, per the leading judgment of Katsina-Alu. JCA (as he then was), to which Aikawa and Okezie, JJCA concurred, concluded its judgment thus:

“I must observed (sic) that the court even though it discharged the appellant, did not find that the prosecution was malicious.

The picture that clearly emerges is like this. The appellant did not prove that the respondent instituted the prosecution. There was evidence which the lower court accepted that the respondent had a reasonable and probable cause to make the report to the police. In addition no malice was proved against the respondent. The only ingredient that the appellant proved was that the prosecution terminated in his favour. Clearly this is not enough. To succeed in an action for malicious prosecution the plaintiff must prove all the favour (sic) ingredients against the defendant. So that the decision to dismiss the claim was amply supported by the evidence led.

In the result this appeal fails and it is accordingly dismissed. ”

Still dissatisfied, the Appellant further appealed to this court, relying on nine grounds of appeal. His learned counsel, Mrs. F. M. Ebofuame – Nezan formulated the following five issues for determination:

“(1) Whether in coming to its dismiss (sic) appellant’s appeal to the Court of Appeal dealt with an issue that did not arise under the grounds of appeal while omitting to deal with issues properly raised before it, and if so the Legal consequences of its so doing

(2) Whether the holding by the Court of Appeal that the court considered evidence properly adduced before it, and did not rely on the evidence of a witness not before it in reaching a decision to dismiss appellants case is correct having regard to the Record of Appeal

(3) Whether the rule that evidence of a witness in an earlier proceeding is irrelevant in a subsequent proceeding except for purposes of cross examination as to credit and in circumstances envisaged by S.34 (1) of the Evidence Act, admits of exception in malicious prosecution cases

(4) What is the Legal consequence upon its Judgment of the trial court considering and relying on the evidence of a witness not before it

(5) Whether the misdirection by the Court of Appeal in stating that “it was therefore not surprising when the criminal court wondered why in spite of their findings the police went ahead and prosecuted the appellant occasioned a miscarriage of justice:’

It may be noted that the Respondent neither filed a Respondent’s brief nor was he represented at the oral hearing.