Ehikhametalor Eromosele V. Keck Wermer & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of the High Court of Justice, Edo State, holden at Ekpoma Judicial Division, which was delivered on October 21, 2004 in Suit No. HEK/22/2003. By the said Judgment, the lower court, coram E. F. Ekponwen, J; the Appellant’s reliefs for unlawful arrest, assault and malicious prosecution sought against the Respondents herein were dismissed. Thus, being dissatisfied with the said Judgment, the Appellant filed the instant appeal in the court below on November 19, 2004.

The Record of Appeal was served on the Appellant and transmitted to the court on 07/02/05. The Appellant’s additional grounds of appeal, dated 27/6/07, were deemed properly filed on 15/01/08. The Appellant’s brief was filed on 10/02/05. On the other hand, the Respondents’ Notice, dated 22/4/10, was deemed properly filed dated on 23/01/12. The Respondents’ brief dated 23/01/12 was deemed properly filed on 25/3/13.

On 06/11/13, when the appeal last came up for hearing, the learned counsel adopted their respective briefs of argument. Thus, resulting in reserving Judgment for delivery.

BACKGROUND FACTS:

By the endorsement to the writ of summons and the statement of claim thereof, dated and filed on 30/4/03, the Appellant claimed against the three Respondents, jointly and severally, as follows:

1. The sum of N1,000,00.00 (One Million Naira) only being general damages for unlawful arrest of the plaintiff, on the complaint of the defendants.
2. The sum of N3,000,000.00 (Three Million Naira) only being general damages for unlawful assault.
3. The sum of N7,000,000.00 (Seven Million Naira) only being general damages for malicious prosecution of the plaintiff for the defendants,
4. The sum of N50,000.00 (Fifty thousand Naira) only being special damages in respect of the legal fee paid by the plaintiff to the legal practitioner that defended him at the Magistrate’s Court Irrua.
5. The sum of N50,000.00 (Fifty thousand Naira) only being special damages for medical expenses incurred as a result of injuries sustained.

Total N11,100,000.00 (Eleven Million and One Hundred Thousand Naira) only.

On 24/9/03, the Respondents filed their joint statement of defence to the Appellant’s claimers. The suit eventually proceeded to trial. The Appellant testified and also called three witnesses in the persons of (i) Veronica Ilevbare (PW1); (ii) Eromosele Oyameda (PW2); and Mrs. Mary Akpofure (PW3). On the part thereof, the Respondents equally called three witnesses in the persons of Wermer Keck (1st Defendant); (ii) Ahmed Momoh (DW1); and (iii) James Ugba Otokurin (DW2). Various exhibits were tendered by the parties which were accordingly admitted by the court as Exhibits A – H, respectively. At the conclusion of the trial of the suit, the lower court delivered the vexed Judgment on the said 21/10/04, to the conclusive effect, thus:

On the whole the plaintiffs claim for malicious prosecution cannot be sustained in the face of the available evidence.

Consequently, I dismiss same.

… The consequence of the plaintiffs claims for malicious prosecution, assault and unlawful arrest being dismissed is that the claim for all the sums including legal fees, are dismissed.

Thus, as alluded to above, the appeal is against the Judgment in question.

At page 2 of the brief of argument thereof, the learned counsel to the Appellant, Bola Adekunle Esq. has identified three issues for determination, viz:

i. Whether Appellant by preponderance of evidence established the presence of the relevant ingredients for malicious prosecution in order to succeed against the respondents.