M.I. Nigeria Limited V. Awongo Odibo Harry (2009)

LawGlobal-Hub Lead Judgment Report

MOHAMMED LAWAL GARBA, J.C.A.

By a writ of summons dated and issued on the 12/8/2000 in the Registry of the Rivers State High Court [hereinafter court below], the Respondent as Plaintiff, claimed against the Appellant as Respondent, as follows:

(1) The sum of N100,000.00 as aggravated damages for malicious prosecution,

(2) The sum of N10,000.00 per day as special damages from 16th November, 1999 until judgment.

At the end of trial, the court below found for the Respondent and entered judgment on 25/11/2004 in his favour in the following terms: –

(1) An order that the defendant pays to the plaintiff the sum of N10,000.00 [Ten thousand Naira], per day as special damages for loss of business of car hiring from the 16th November, 1999 until the day that judgment is delivered.

(2) An order that the defendant pays to the plaintiff the sum of N180,000.00 [Eighty Thousand Naira] as aggravated damages for malicious prosecution.

This appeal is against the above decision with which the Appellant was dissatisfied and apparently aggrieved because the Notice of Action was filed the day following the judgment, i.e. the 26/11/2004.

Brief of argument were filed by learned counsel for the parties as required by the Rules and practice of the court. The Appellant’s brief was filed on 7/1/2005 while the Respondent brief filed on 25/9/2006 was deemed on the 16/10/2006. From the six [6] goods of appeal contained on the Appellants, Notice of Appeal, learned senior counsel for the Appellant distilled the following two [2] issues which he submitted call for determination in the appeal:

2.02 Whether, on the available evidence produced before the court, a case of malicious prosecution of the respondent was made out against the appellant to support the judgment of the Trial Court.

2.03 Whether, on the state of the pleadings and evidence, the award of special damages made by the learned trial Judge against the appellant is sustainable.

Issue 2.02 was stated by the learned senior counsel to be covered by grounds 1 – 4 of the grounds of appeal and issue 2.03 covered by ground 5 of the said grounds.

The learned counsel for the Respondent at paragraph 3.4 on page 3 of the Respondents’ brief adopted the above issues as formulated.

In his submissions on the first issue, the learned senior counsel after a summary of each side of the case presented at the court below as contained in the printed record of appeal as well as the conclusion of that court at page 74 of the record, said that the opinion and conclusion are erroneous and contrary to law. He said that there are five [5] elements prescribed by judicial authorities that must be exist before a claim for malicious prosecution can succeed against a defendant. They are –