Patrick Ogbonna V. Christain Ogbonna & Anor (2014)
LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL
ITA G. MBABA, J.C.A. (Delivering the Leading Judgment)
This is an appeal against the judgment of Kaduna State High Court, in Suit No. KDH/KAF/54/2005, delivered by HON. JUSTICE L. D. ABA on 30/6/2008, wherein the court held in favour of the Respondents, awarding special and general damages, totaling one million three hundred and forty five thousand, five hundred naira (N1, 345,500.00) to the Respondents and cost of N10, 000.00 for malicious prosecution.
Appellant was the defendant at the lower court and the Respondents, Plaintiffs. The Plaintiffs had claimed as follows, as per their Amended Statement of claim on page 6 of the Record:
(i) N870, 000.00 being special damages for monies spent to hire the services of Counsel to appear for them at both the Police Station, at various times and in Court at various adjournments, filing Court processes and obtaining Court records.
(ii) N1,130,000.00 general damages for miscellaneous expenses incurred in respect of the Police arrests, detention and prosecution of the defendant’s complaints at various times as enumerated above; and mental, emotional and psychological stress, caused the plaintiffs by the malicious and unfair acts of the defendant; and loss of plaintiffs’ fame. Total damages – N2, 000,000.00, and for cost of action.
Of course, Appellant counter claimed for N340, 000.00 special damages and for N2, 000,000.00 general damages.
Appellant filed notice of this appeal on 16/7/2008 and raised eleven (11) grounds of appeal, as per pages 178 to 186 of the Records. He filed his brief of arguments on 16/10/2008, upon the transmission of the Records of Appeal to this court on 4/9/08. He distilled five (5) Issues for determination, as follows:-
“1. Whether in view of the state of the pleadings and in the light of the evidence adduced in this suit, the learned trial judge is right in holding that the Respondents have established a case of malicious prosecution against the appellant? (Ground 7)
- Whether the rejection of the evidence of the appellant and his witnesses as to who caused the respondents’ arrest and detention in 2003 in the Police Station Kafanchan is wrongful in the circumstance of this case? (Grounds 1 and 8)
- Whether the procedure adopted by the learned trial judge in calling a witness, Constable Bulus Obadia on his own, without the consent of the parties herein and the reliance placed on the evidence in the judgment has not occasioned a miscarriage of justice in this case? (Ground 3)
- Whether the various sums of money awarded to the respondents by the learned trial judge by way of special damages were specially and strictly proved to entitle them to the award? (Grounds 2, 4, 5, 6 and 9)
- Whether the award of general damages in addition to special damages by the learned trial judge was wrongful and if the answer is in the negative, whether the general damages awarded was not excessive in the circumstances of this case? (Grounds 10 and 11).
The Respondents filed their brief of arguments on 14/10/2011 and the same was deemed duly filed on 14/5/13. They distilled four (4) issues for determination, as follows:
“1. Whether, given the admission of Appellant and the uncontroverted and/or uncontradicted evidence of the Respondents, the trial court was not justified to hold that the respondents made out a case of malicious prosecution against the Appellant (Grounds 1, 7 and 8)
- Whether the learned trial judge did rely on the reference made to Constable Bulus Obadia to arrive at the judgment in favour of the Respondents and/or whether the mere reference to Constable Bulus Obadia, without more, amounted to irregular procedure and/or occasioned miscarriage of justice. (Ground 3)
- Whether the Respondents proved their claims before the trial court to be entitled to judgment (Ground 2, 4, 5, 6, 9)
- Whether the award of damages special and/or General was unreasonable” (Grounds 10 and 11)
When the appeal was heard on 6/11/13, Counsel for the respective parties adopted their briefs and urged us, accordingly.
Arguing issue 1, Learned Counsel for the Appellant, CHIEF A. EKHASEMOMHE, submitted that in order to succeed in an action for malicious prosecution, the Plaintiff must prove four things, which must all co-exist:
a. that he was prosecuted by the defendant
b. that the prosecution was determined in his favour
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