ADEBOWALE v. ROBINSON

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PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Ekiti State High Court, delivered on 3rd day of December, 2014 by His Lordship, Hon. Justice A.K. Fowe, granting all the claims of the Respondent.
In the Writ of Summons and statement of Claim filed at the registry of lower Court on 18th of November, 2011, Respondent claimed as follows:-
(a) Two Million Naira (N2,000,000.00) general damages for malicious prosecution of claimant between 2010 and 2011 by the defendant in charge MID/16C/2010 before the Magistrate Court, Ido Ekiti which ended in the discharge and acquittal of the claimant.

Judgment in the suit was delivered on 3rd December, 2014 in favour of Respondent.
Dissatisfied with the said judgment, Appellant filed his Notice of Appeal at the Registry of the lower Court.
Appellant subsequently filed amended Notice of Appeal.
The case of the appellant at the lower Court can be gleaned from Exhibits D1 and D2, is that the defendant willfully and unlawfully sprayed chemical on his crops which resulted in the damage to his pineapple and other crops. On the other hand, the case the respondent is struggling to put forward before the lower Court was that sometimes ago, the appellant reported him to people and police that he trespassed on his (the appellant) land. That the appellant made false allegation against him that he destroyed his pineapple which led to his arrest and that he was subsequently charged to Court for malicious damages. That it was the appellant who instigated the police to arraign him in Court for malicious damage. That the action of the Appellant was actuated by malice. That at the end of the trial he was discharged and acquitted.
The trial Court, in his judgment discountenanced with the processes filed by the appellant while granting the relief of the respondent in his claim.
The Appellant was dissatisfied and lodged an appeal against the judgment of the learned trial judge.
To argue the appeal, the Appellant formulated five issues for the just determination of this appeal thus:
(1) Whether the trial Court was right in holding that the appellant has no defence when it closed its eyes to the statement of defence filed by the appellant on 23rd March, 2012 and amended statement of defence and counter-claim filed on 21st May, 2013- GROUND 4 AND 6.
(2) Whether the trial Court was right in admitting and relying on Exhibit P2, the record of proceedings in a criminal matter when same is inherently inadmissible in civil matter? GROUND 5
(3) Whether in view of the evidence before the Court, the ingredients of malicious prosecution have been established by the Respondent to entitle him to judgment- GROUNDS 1 and 7.
(4) Whether the Respondent has any evidence before the Court upon which the Court could grant the reliefs of the respondent- GROUND 3
(5) Whether the entire decision of the lower Court actually contain reason or reasons sufficient enough to enter judgment in favour of the Respondent as the entire judgment dated 3rd December, 2014 lacked reasons before arriving at same. GROUND 2.
ARGUMENTS
ISSUE 1
Whether the trial Court was right in holding that the appellant has no defence when it closed its eyes to the statement of defence filed by the appellant on 23rd March, 2012 and amended statement of defence and counter-claim filed on 21st May, 2013.”

To argue this issue, learned Appellant’s Counsel Mr Cletus Nnachetta referred to the evidence of Mr. Idowu Adejola who testified as DW1. The said DW1 testified that he deposed to a written statement on oath on the 23rd March 2012 and same admitted as Exhibit D1. The Appellant himself testified as DW2 and also stated that he deposed to a written statement on oath on 23rd March 2012. Nonetheless, the trial judge in his judgment disregarded both the statement of defence filed on the 23rd March 2012 and the Amended statement of defence and counter-claim filed on the 21st May 2013 including the evidence adduced in support thereof by DW1 & DW2.
He then contended that the learned trial judge cannot rightfully disregard both the original statement of defence and the Amended statement of defence and counter-claim filed by the Appellant as to do so will amount to a denial of fair-hearing to the Appellant. It is Mr Nnachetta’s submission that even if the learned trial judge for any reason chose to discountenance with the Amended statement of defence and counter-claim filed by the Appellant, he must of necessity fall back on the original statement of defence of the

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Appellant since the original statement of defence is still valid, regular and competent. He then submitted that the learned trial judge was wrong in holding that the appellant did not comply with order of his learned brother, Hon. Justice Ogunmoye, because the appellant filed his amended statement of defence and counter-claim which he obtained the leave of Court late.
The fact that the appellant filed his Amended statement of defence and counter-claim which the Court granted leave to file, late is not enough reason for the learned trial judge to disregard the appellant’s Amended statement of defence and counter claim and for the Court to go ahead and decide the suit without countenance with the processes filed by the appellant.
The law is settled that when a defendant filed his statement of defence outside the time allowed by law, the Court should not disregard the said statement of defence but should suo motu extend the time within which same ought to be filed. See the case ofI.M.N.L. V. OGE (1996) 3 NWLR (Pt. 437) 422 @ 429. See U.B.A. Ltd v. Nwora(1978) 11-12 SC 1.

Accordingly, he submitted that the learned trial judge was in grave error when he disregarded the appellant’s Amended statement of defence and counter claim and held that the effect is that the evidence given by the defendant in this case is based on nothing.

The peculiar facts of this case is that the appellant filed a valid and competent statement of defence before the order to amend his statement of defence by the Hon. Justice Ogunmoye and if the learned trial judge is of the opinion that the appellant did not comply with the order of amendment of statement of defence and counter, the only option open to the lower Court is to resort to the appellant’s original statement of defence and not to treat the appellant’s original statement of defence as if it does not exist.
The law is firmly settled that when a defence failed to file his pleadings after he has obtained an order to amend same, the un-amended process will remain un-amended. See NWANKWO V. ABAZIE (2003) FWLR (PT 180) 1407 @ 1424-1425.

By so doing, Mr Nnachetta submitted that the learned trial judge breached the Appellant’s right to fair hearing by disregarding the case on the Respondents pleadings and evidence in support. See U.B.A. PLC. V. EFFIONG (2012) ALL FWLR (PT. 634) 172 at 193, MBANEFO V. MOLOKWU (2014) ALL FWLR (PT. 724) 1665 AT 1693.

In consequence, he urged the Court to resolve this issue in favour of the Appellant.
ISSUE 2
Whether the trial Court was right in admitting and relying on Exhibit P2, the record of proceedings in a criminal matter when same is inherently inadmissible in civil matter? GROUND 5

Learned Appellant Counsel, Mr Nnachetta stated that during the trial of this suit, the respondent sought to tender in evidence, the record of proceedings in criminal trial of the respondent in MID/16M/2010 between Commissioner of Police v. Durojaye Segun Robinson and the trial Court admitted same in evidence and marked it Exhibit P2, amidst objection by the appellant.
By so doing, the learned trial judge gravely erred when he admitted and relied on the record of proceedings in criminal trial as Exhibit P2 as same is absolutely inadmissible.
According to learned counsel, Exhibit P2 ought not to be admitted or be relied on at all by the learned trial judge on the following grounds.
(a) Exhibit P2, though certified by the station registrar, was not signed by the presiding magistrate.
(b) Section 62 of the Evidence Act rendered Exhibit p2 absolutely inadmissible.
(c) Record of proceedings in Criminal matter is not admissible in civil proceedings.

To start with, Exhibit P2, the purported record of proceeding was not signed by the learned Magistrate and this vice renders the proceedings (Exhibit P2) a nullity. See OKOLIE V. THE STATE (2012) ALL FWLR (PT. 607) 770 AT 782. Exhibit P2, it is contended requires the name or signature of the presiding Magistrate to be authentic as it is not enough to be merely certified by the registrar of Court is not enough.
A cursory look at Exhibit P2, which was purported to be the records of proceedings of the magistrate Court of the following dates; 19/8/2010, 7/10/2010, 8/11/2010, 13/12/2010, 17/2/2011 and 24/2/2011 and 31/03/2011 does not even bear name and signature of the magistrate at the end of each of the proceedings while most of the proceedings does not bear the heading of Court.
It is on the basis of the above that learned counsel submitted that the mere certification of Exhibit P2 by the registrar of

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the Court without more does not cloth same with the presumption of regularity prescribed by the evidence act and thus robbed Exhibit P2 of every evidential value. See Ajaokuta Steel Co. Ltd. V. Role (2011) ALL FWLR (Pt. 563) 1931 @ 1946.
In addition, the law is settled that failure to sign the record of proceedings by the learned Magistrate renders the Exhibit P2 null and void and deprives Exhibit P2 of any evidential value and he urged the Court to so hold and expunge Exhibit P2. Even, Exhibits P2 is inadmissible by virtue of Section 62 of the Evidence Act, 2011.
The said Exhibit P2 is not the real fact in issue here and is not among the class of judgments, orders or decrees mentioned in Sections 59, 60 and 61 of the Evidence Act 2011. Worse still is that the record of proceedings of a criminal matter i.e MID/16M/2010 between Commissioner of Police v. Durojaye Segun Robinson is absolutely inadmissible in civil actions for any purpose whatsoever. See ABUBAKAR V. JOSEPH (2008) 13 NWLR (PT.1104) 307 AT 353 (CS), ALI V. UGWU (2012) ALL FWLR (PT. 619) 1078 AT 1111.

Inspite of the inadequacies against Exhibit P2, the learned trial judge instead of expunging same from the records, relied on same in arriving in his decision which is perverse. See OLAYINKA V. STATE (2007) ALL FWLR (PT. 373) 163 AT 176, DIVINE IDEAS LTD V. UMORU (2007) ALL FWLR (PT. 380) 1468 AT 1506.

If Exhibit P2 was expunged from the record of the Court, the judgment of the lower Court would have been different as he would have dismissed the respondent’s claim for his failure to prove his case with cogent or credible evidence.
It is further submitted by Mr. Nnachetta that where a lower Court wrongly admitted a piece of inadmissible evidence, the appellate Court will intervene by expunging the inadmissible evidence. See OKOREAFFIA V. AGWU(2012) 1 NWLR (PT. 1282) 425.

He then urged the Court to resolve this issue in favour of the Appellant and against the Respondent.
ISSUE 3
Whether in view of the evidence before the Court, the ingredients of malicious prosecution have been established by the Respondent to entitle him to judgment- GROUND 1 and 7.

Mr. Nnachetta stated that the respondent has failed to prove that he is entitled to the reliefs sought by him vis-a-vis the available evidence on record and there upon submitted that for a claimant to succeed an action for malicious prosecution, he must plead and prove with credible and cogent evidence the following ingredients.
(a) That the defendant put the machinery of prosecution on motion.
(b) That the result of the Criminal action is a favour of the accused.
(c) That the defendant has no reasonable cause to prosecute the accused.
(d) That the prosecution is as a result of malice.
See the case of Balogun v. Amubikahun (1989) NWLR (Pt. 107) 18

All the above ingredients must be proved concurrently in order to establish a case of malicious prosecution and failure to prove any of them, the claim will fail and be dismissed.
From the above, learned Appellant Counsel submitted that the ingredients for liability on the tort of malicious prosecution as administrated above especially No A, C and D were not proved or established by the Respondent during trial at the lower Court. The Appellant merely made a report or complaint of the destruction of his crops without more and cannot be said or held as setting the law on motion against the respondent leading to his prosecution.
There is nothing in the case of the respondent to suggest or let alone to prove that the appellant was instrumental in setting the law in motion for his arrest by the police. Because both the DW1 and DW2 gave uncontroverted evidence before the trial Court that the Appellant merely lodged a complaint to the police that the respondent sprayed chemical (herbicide) on his farm thereby destroying his crops.
The police in carrying out its statutory functions arrested the respondent and at the conclusion of her investigation, charged the respondent to Court.
It is learned counsel submission that the police by arresting and prosecuting the Respondent was merely performing their statutory duties as contained in Section 4 of the Police Act.
It is therefore obvious according to learned counsel that the Respondent failed to prove or adduce any evidence to establish that the appellant put the machinery of prosecution in motion against him or that the prosecution is a result of malice or he has no reasonable cause to prosecute him.
Also submitted is that it is not enough for respondent to merely state that the action of the appellant was a result of

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malice but he must prove with credible evidence that the action of the Appellant was actuated by improper and indirect motives. See Balogun v. Amubikahun (supra).

Also that without conceding that the appellant prosecuted the respondent or set in motion the law that led to the prosecution of the respondent, his prosecution was reasonable. It is on record that the respondent willfully sprayed chemicals (herbicides) on the farm of the appellant which resulted in the destruction of the appellant’s crops.
As such, it cannot be said that the complaint of the Appellant which led to the arrest and prosecution of the respondent was without reasonable or probable cause when there was an uncontroverted evidence of destruction of his crops by the appellant which caused him a substantial loss or damages.
It is therefore pertinent to note that the Appellant denied the allegation that he maliciously prosecuted the Respondent both in his statement of defence of 23/3/2012 and written statement oath and that of DW1.
The DW1, Mr. Jide Adeyola gave evidence to the effect that he saw the claimant while spraying the crops of the defendant.
That despite several attempts to stop him but he refused and went on spraying the defendants crops with chemical and maliciously destroyed the crops.
DW1 in his statement (Exhibit D) said that the appellant merely reported the case to the Police at Ado Ekiti who investigated same. For one reason or the other, the Respondent did not cross-examine the witness on this material, weighty and cogent evidence which to all intents and purpose is tantamount to an admission that can be believed and acted upon by the Court. See UZOEGWU V. IFEKANDU (2001) FWLR (PT. 72) 1950 AT 16967. Therefore, if it can be said that the Appellant was instrumental to the prosecution of the Respondent, then he has a reasonable cause to do so, and that there was no malice in the prosecution of the Respondent for malicious damages.
It is the contention of the Appellant that there is no proof of malice against the appellant in making the complaint. And he submitted that the appellant has a just and reasonable cause in making his complaint of spraying chemical on his pineapples by the respondent to the police and that the police subsequent arrest, interrogation, prosecution of the respondent were done independently without and instigation from the Appellant, the ingredient of malice cannot be implied against him as wrongly done by the learned trial judge. The learned trial judge should have accepted the uncontroverted evidence of DW1 who was an eye witness who testified on the absence of malice, or instigation on the part of the Appellant.
Therefore the Respondent failed to lead evidence to show and establish that no reasonable ground existed for the report by the Appellant to the police about the destruction of his cash crops. Put in another way, the respondent did not plead and show by his evidence, the absence of reasonable and probable cause on their part.
Even the mere fact that the respondent was discharged on a charge of malicious damage without more is not enough to impute malice because from the uncontroverted evidence of the DW1, he had an opportunity or was in a position to commit a crime alleged and the fact that the result ended in favour is not automatic for grant of relief for malicious prosecution. See the case of OJO V. OKITIPUPA OIL PALM PLC (2001) FWLR (PT. 70) 1487 @ 1506.
Learned Appellant then concluded by submitting that the Respondent failed woefully to establish the ingredients of malicious prosecution and therefore not entitled to the reliefs sought. He then urged the Court to resolve this issue in favour of the Appellant.

Issue 4
Whether the Respondent has any evidence before the Court upon which the Court could grant the reliefs of the respondent? – GROUND 3

Learned Appellant’s Counsel submitted that the respondent failed to adduced any legally admissible evidence before the lower Court upon which the lower Court could have entered judgment for him.
It is instructive to note that the Respondent himself and one Pastor Dagunduro and one Mr. Tunde Fadahunsi made written statement on oath which was filed along with the originating processes in this suit.
Remarkably, none of the three witnesses adopted the written statement during the hearing of this suit but the said written statement on oath were merely tendered in evidence and admitted as Exhibit PW1, PW4 and PW5 respectively.
Furthermore, learned counsel contended that written statement of oath unlike affidavit must be adopted and relied

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on by a witness during trial before it becomes evidence. See AREGBESOLA V. OYINLOLA (2011) 9 NWLR (PT. 1253) 458 @ 562-563, H-A.

Learned Appellant Counsel contended that it is not enough for a witness to depose to his written statement on oath as he must adopt same during trial for same to become evidence. That being so, the written statements of oath of the PW1, PW2 and PW3 which were not adopted by them at the trial of this suit are not evidence before the Court and same cannot be relied upon by the lower Court to enter judgment for the respondent.
It is therefore submitted that the failure of the respondent and his witnesses to adopt their written statement on oath during the trial of this suit is not an irregularity that can be brushed aside with a wave of hand as it affect the case of the respondent.
In the light of the foregoing and having regard to the fact that none of the respondent’s witnesses adopted his written statement on oath at the hearing this suit at the lower Court, the respondent has no evidence before the Court as he cannot place something on nothing and expect it to stand.
In conclusion, he urged the Court to hold that the respondent’s witnesses having not adopted their written statement on oath before the Court have no evidence before the Court and then urged the Court to resolve this issue in their favour, set aside the judgment of the lower Court and allow the appeal.
ISSUE 5
Whether the entire decision of the lower Court actually contain reason or reasons sufficient enough to enter judgment in favour of the Respondent as the entire judgment dated 3rd December, 2014 lacked reasons before arriving at same. GROUND 2.

In arguing this issue, learned Appellant’s Counsel submitted that the entire judgment lacks reason and also that the entire proceeding that produced the judgment at the lower Court was predicted on speculative facts rather than reason.
The judgment of the Court must state the reasons upon which the Court’s decision is based. The Court must give cogent and compelling reason or reasons as to why the evidence of one party is to be preferred to that of another. It cannot merely states that it believes the evidence of one party than the other party without any reason or jurisdiction of such belief.
Learned Appellant Counsel contention on this issue is that the learned trial judge merely restated/reproduced the record of proceeding vis-a-vis the evidence of the parties without resolving the issues of fact and the applicable laws and he failed to adduce reason for reaching his conclusion that the respondent proved his case before holding that the ingredients of malicious prosecution have been satisfied by the respondent.
It is his submission also that the learned trial judge is under a duty to make dispassionate consideration of the respondent’s case and to examine whether the respondent has led evidence on all material issues of fact which would, if accepted after evaluation, entitle the respondent to succeed. See the case of Sanusi v. Ameyogun (1992) 4 NWLR (PT. 237) 527 @ 546 H.

The end result of it is that the learned trial judge has failed in his duty and such a judgment is devoid of fair hearing amounting to a nullity See CITEC Int’l Estates Ltd V. Francis (2014) ALL FWLR (PT. 738) 934 SC, Ndukauba v. Kolomo (2005) ALL FWLR (Pt. 248) 1902, (2005) 4 NWLR (PT. 915) 411.

In conclusion, learned Appellant counsel submitted that the lower Court lacks the jurisdiction and every decision of the trial judge was devoid of reason and urged the Court to allow the appeal and set aside the judgment of the lower Court.
On his own part, the Respondent adopted three (3) issues from the five issues distilled by the Appellant and formulates additional one issue for the determination of the instant appeal with slight modification to it:-
(1) Whether the trial Court was right in holding that the Appellant has no defence when it closed its eyes to the Statement of Defence filed by the Appellant on 23rd of March, 2012 and Amended statement of Defence and counter Claim filed on 21st May, 2013 GROUNDS 4 AND 6 of the Amended Notice of Appeal.
(2) Whether the trial Court was right in administering and relying on Exhibit P2, the record of proceeding in a criminal matter when same is inherently inadmissible in civil matter? Ground 5 of the further Amended Notice of Appeal.
(3) Whether from the oral and documentary evidence placed before the lower Court, the learned trial Judge was right to have granted the Respondent’s claim. Grounds 1, 2 and 7 of the further Amended Notice of Appeal.

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(4) Whether the written statement on oaths of the respondent and his witnesses were not sworn and adopted in accordance with relevant laws? Ground 3 of the Further Amended Notice of Appeal.
LEGAL ARGUMENTS AND SUBMISSIONS ON THE ISSUES
ISSUE 1
Whether the trial Court was right in holding that the Appellant has no defence when it closed its eyes to the Statement of Defence filed by the Appellant on 23rd of March, 2012 and Amended statement of Defence and counter-claim filed on 21st May, 2013. GROUNDS 4 AND 6 of the Amended Notice of Appeal.
Appellant filed a Motion No: HID/16M/2012 dated 27th June, 2012 for amendment of his statement of Defence and to counter Claim the claims of the Respondent.
The Motion seeking for amendment was granted on the 17th July, 2012 by Hon. Justice Ogunmoye.
Hon. Justice Ogunmoye was transferred and the matter started denovo before Justice Fowe.
The amendment granted to the Appellant was abandoned and not filed.
The matter proceeded to hearing and at the close of the claimant case (Respondent), the appellant quickly rushed to the registry and filed the Amended statement of Defence and Counter Claim which was granted over ten months without the leave of Court nor payment of penalty fees as required by the rules of the Court.
Order 24 Rule 4 of the High Court of Ekiti Civil Procedure Rules 2011

Learned counsel then went on to submit that rules of Court are meant to be obeyed and more especially as the word SHALL is embodied in Order 24 Rule 4 of the High Court of Ekiti Civil Procedure Rules, 2011. SeeUGWU V. ARARUME (2007) ALL FWLR (PT. 377) 807 AT 857.

It is trite law according to learned counsel that when a party failed to file his pleadings after he has obtained an order to amend same, the Court will rely on the unamended process. See NWANKWO V. ABAZIE (2003) FWLR (PT. 180) 1407 at 1424.

Going by the decision of the Court in the above sited case, it is submitted therefore that the learned trial Judge was right when he held that the amended statement of Defence and Counter Claim was not before the Court and any evidence given so far on it cannot stand as something cannot be put on nothing and that the trial Judge did not abandon the original statement of defence but relied on it as the only defence before the Court in accordance to the decision of the Court in Nwankwo vs. Abazie (supra).
A manifestation of the appraisal of the Appellant’s statement of defence by the learned trial Judge can be seen at the body of the judgment.
According to learned counsel on the argument that the appellant was not given fair hearing, it is submitted that fair hearing is not absolute.
The Rules of Court is a guiding principle that the parties to a case must follow strictly. Where the Appellant failed to utilize the ample opportunity given to him by the rules of Court, he cannot be heard saying that his right to fair hearing has been denied.
It is therefore submitted that the case of UBA VS. EFFIONG and MBANEFO VS. MOLOKWU cited by the Appellant were sited out of context and not relevant in this case.
He then urged the Court to resolve this issue in favour of the Respondent.
ISSUE 2
Whether the trial Court was right in administering and relying on Exhibit P2, the record of proceeding in a criminal matter when same is inherently inadmissible in civil matter.”
This issue is distilled from the fifth ground of Appeal.
Learned Respondent counsel contended that it is apposite to state that what was admitted and marked as Exhibit p2 at the lower Court was MID/16c/2010 contrary to MID/16M/2010 mentioned in the appellant brief of argument.
Exhibit P2 is a record of proceeding and by virtue of such comes under the category of a public document. See Section 102 of the Evidence Act. 2011.

For Exhibit P2 to be admissible, it must meet the requirement encapsulated in Section 104 (1) and (2) of the Evidence Act, 2011.
Therefore, the only admissible secondary evidence of a public document is a duly certified true copy of such document. See Abdullahi v. FRN (2016) 10 NWLR (pt. 1521) 4475 at 480, Udo v. State (2016) 12 NWLR (PT. 1525) 1 SC, TABIK INVESTMENT LTD. V. GUARANTY TRUST BANK PLC (2011) 17 NWLR 240 AT 262.

Exhibit P2 according to learned counsel is a record of proceedings and not a judgment of Court that mandatorily requires the signature of the presiding Magistrate and has therefore fulfilled the requirements of the law and its admissibility governed by the following criteria thus:
(a) Is the document pleaded?
(b) Is it relevant to the inquiry being tried by the Court?

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(c) And is it admissible in law?
See Okonji vs. Njokama (1999) 12 NWLR (Pt. 638) 250 (SC)

Exhibit P2, learned counsel submitted that it met with all the above requirements and that it is relevant to the enquiry being tried and admissible in proceeding for malicious prosecution.
It is learned counsel’s submission that admissibility of records of proceeding in criminal proceeding as evidence in civil matter for malicious prosecution is an exception to the general rule that record of proceeding in criminal proceedings is inadmissible as evidence in civil proceeding. See BALOGUN VS. AMUBIKAHUN (1989) 3 NWLR (PT 107) 18 S.C.

It is settled principle that in an action for malicious prosecution, the plaintiff must plead and prove that the defendant was instrumental in setting the law in motion against him and was charge before a Court. See WATTER VS. PACIFIC DELIVERY SERVICE LTD (1964) 42 D.L.R. BALOGUN VS. AMUBIKAHUN (1989) SUPRA.

Secondly, one of the viable means to show in addition to the respondent’s evidence before the Court that the Appellant set in motion the law against him is by tendering the record of proceeding at the Magistrate Court. BALOGUN VS. AMUBIKAHUN (1989) 3 NWLR (PT. 107) 18 @ 35.

Finally, learned counsel submitted that since Exhibit P2 was not disputed as a certified true copy of the record of proceedings, it is therefore admissible in an action for malicious prosecution and that Section 62 of the Evidence Act 2011 erroneously referred to by the Appellant is inapplicable.
On the basis of all the above, he urged the Court to resolve this issue in favour of the Respondent.
Issue 3
Whether from the oral and documentary evidence placed before the lower Court, the learned trial Judge was right to have granted the Respondent’s claim. Grounds 1, 2 and 7 of the further Amended Notice of Appeal.

It is trite law that he who asserts facts must prove them. See SECTION 131 (1), (2), 132, 133 AND 136 of the Evidence Act, 2011. See the cases of PHILLIPS VS. E.O. AND IND-CO., LTD. (2013) 1 NWLR (PT. 1336) P. 618 @ 641 PARAS A-B.
It is also trite law that it is a fundamental procedural requirement that when issues are joined by parties in their pleadings, evidence is required to prove them as averred.
It is the person upon whom the burden establishing that issue lies that must adduce satisfactory evidence.
It is in the light of the discharge of that onerous task of burden of proof in civil cases that respondent gave uncontroverted affidavit evidence and tendered Exhibit P2, P3 and D3. He urged the Court to give due consideration to the Exhibits. See the case of JIMOH VS. AKANDE (2009) 5 NWLR (PT. 1135) P. 549

The Respondents according to learned counsel have pleaded and proved the ingredients of malicious prosecution and is thereby entitled to the damages sought for. See Balogun v. Amubikahun (1989) 3 NWLR (Pt. 107) 18.

It is the contention of the learned counsel that it is not in doubt that the Respondent was prosecuted and the prosecution was as a result of the Appellant setting the law in motion against the Respondent in that the Appellant reported the Respondent to the Police Station several times on frivolous allegation of trespass, threat to life and malicious damage which led to the arrest of the Respondent. Also Exhibit D3 was equally written with strong words that the Respondent must be prosecuted and even engaged the services of a legal practitioner.
It is further submitted that subsequent upon the prosecution of the Respondent by the Appellant, he (Respondent) was discharged and acquitted of the charge against him as shown on page 2 paragraph 18 of the additional record of proceedings and Exhibit P2.
The prosecution of the Respondent was without any reasonable and probable cause. The I.P.O. who investigated the allegation of crime gave evidence that he visited the scene of the alleged crime with his Divisional Crime Officers and that only a leave of pineapple was recovered.
Since there is no reasonable cause to justify the prosecution of the Respondent, learned counsel contended that there is no doubt that it is actuated by improper motive calculated to send the Respondent away from the land which was a subject matter between them. See BALOGUN VS. AMUBIKAHUN (SUPRA).

On the said judgment, what is necessary to consider is whether the decision of the trial judge is right and not whether the reasons for the judgment is right. See EKPO V. STATE (2003) 17 NWLR (PT. 849) 392, ABAYE V. OFILI(1986) 1 NWLR (PT. 15) 134.

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On the award of N1, 000,000.00 as general damages learned Respondent’s counsel submitted that the Courts discretion granting same in the circumstance was justified and does not call for an appellate Court interference. See EZE V. LAWAL (1997) 2 NWLR (PT. 487) 33
He then urged the Court to resolve this issue in their favour.
ISSUE 4
Whether the written statement on oaths of the respondent and his witnesses were not sworn and adopted in accordance with relevant laws?

It is the submission of learned counsel that the entire argument of Appellant Counsel under this issue was misconceived, misapplied and not certainly the law. The Respondent and his witnesses statement on oath were filed at the registry of the trial Court on the 18th November, 2011. See GE INTL OPERATIONS LTD V. Q-OIL & GAS SERVICES (2015) 1 NWLR (PT. 1440) 244 AT 270, MARAYA PLASTICS LTD V. INLAND BANK (2002) 7 NWLR (PT. 765) 109, ISHAQ V. INEC (2008) LPELR 4336. ONUJABE V. IDRIS (2012) 2 NWLR (PT. 1284) 285 IJAODOLA V. REGISTERED TRUSTEE OF C AND SCM (2006) 4 NWLR (PT 969) AND UDUSEGBE V. SPDC NIG LTD. (2008) 9 NWLR (PT 1093) 593.

It is learned counsel submission that both written declarations and depositions are presumed to be regular, being judicial act.
See Section 168 (1) of the Evidence Act Cap 14 Laws of the Federation of Nigeria 2011. As a result, it is therefore right in law to refer both written declarations/depositions as “affidavit” once it is sworn to before a Commissioner for oaths and identified in the witnesses box, it becomes an affidavit evidence. Therefore, learned counsel then urged the Court to hold that the submission of the Appellant in respect of the above is misconceived as both declarations have not offended the oaths Act and or any known Law/Act. See also Order 32 (2) (1) of Ekiti State High Court (Civil Procedure) Rules 2011.
It is submitted that the Respondent (Claimant) as a witness himself and other witnesses were sworn on Holy Bible and subsequently cross-examined on their written depositions by the Appellant, it is therefore submitted with respect to the Appellant counsel that his argument that there is no evidence adduced by the Respondent is not logical and cannot hold water. Assuming without conceding that there was no evidence adduced by the Respondent and his witnesses, the Appellant should therefore give explanation on what pieces of evidence the witnesses were cross examined upon.
Submitted that whatever defect(s) if any in the written depositions by the Claimant as respondent as his own witness in his written statements/depositions has been cured by the sworn statement and or declaration in the witness box in the open Court.
In concluding his argument under this issue, learned Respondent submitted that all the legal arguments and submissions proferred by the Appellants Counsel in respect of issue four in the Appellant’s brief of argument are misplaced in law as they are all issues of technicality which are no more in vogue. See MAGIT V. UNIVERSITY OF AGRICULTURE, MAKURDI (2015) 19 NWLR (PT. 959) 211.

He then urged the Court to resolve issue 4 in favour of the Respondent, uphold the decision of the lower Court and finally to dismiss the appeal as being unmeritorious.
In a reply dated 30th January 2018 and filed on the 31/1/2018, learned Appellant replied to some of the issues raised in the respondent’s brief.
On the contention of the respondent that the Appellant filed his contended statement of defence and counter claim ten months after obtaining leave to amend without further leave of Court to so file or payment of penalty as required by the Rules of Court, Respondent’s counsel submitted that by the provisions of the Ekiti State High Court Civil Procedure Rules 2011, Order 5 Rule 1 provides that failure to comply with the said rules shall be treated as an irregularity and shall not nullify any step taken in the course of the proceedings such an irregularity does not vitiate the Amended statement of defence and counter-claim filed by the Appellant on 21st May, 2013.
The contention of the Appellant is that he still has a valid statement of defence which the lower Court ought to have considered when evaluating the cases put forward by the parties. Therefore, even if the lower Court chose to disregard the Amended statement of defence and counter-claim filed outside the time allowed by the Rules it must not disregard the original statement of defence of the Appellant duly filed. See YAHAYA V. CHUKWURA(2002) FWLR (PT 87) 732 AT 745-746.
On the submission by the respondent counsel that the learned trial judge rightly discountenanced the amended statement of defence and counter-claim and the evidence

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adduced in support thereof because the Appellant failed to utilize the opportunity offered him, learned Appellant’s counsel submitted that by so doing, the learned trial judge failed to evaluate the evidence adduced by the Appellant. And that by shutting its eyes to the statement of defence filed by the Appellant and going ahead to determine the suit solely on the pleadings and evidence of the Respondents, the learned trial judge blatantly denied the Appellant’s his right of fair hearing and the said judgment in contravention is liable to be set aside by the Court. See OKUNGBOWA v. GOVERNOR EDO STATE (2015) 10 NWLR (PT. 1467) 257 F.B.N. PLC V. T.S.A. IND LTD. (2010) 15 NWLR (PT 1216) 247. UZUDA V. EBIGAH (2009) 15 NWLR (PT. 1163) 1 AT 2.
On issue No. 2 concerning the admissibility of Exhibit P2 as a public document.
Appellant’s learned counsel here contends that the certified copy of the record of proceedings ought to indicate the name of the presiding Magistrate and that the proceeding of each day was signed by the learned Magistrate who presided. The appellant went further to contend that the failure of Exhibit P2 to indicate the name of the presiding Magistrate and whether the Magistrate signed the proceeding of the day rendered Exhibit P2 void and thereby robbed same of its evidential value.
Learned counsel submitted that Exhibit P2 does not attain the requirement of the Evidence Act as it does not meet the third criterion and therefore not admissible in law.
It is the contention of the Appellant that Exhibit P2 being an inadmissible document cannot be the basis upon which the learned trial judge would enter judgment for the Respondent. The said judgment based on Exhibit P2 is therefore perverse and cannot stand. See OLAYINKA V STATE (2007) ALL FWLR (PT. 373) 1163 AT 176.

He then urged the Court to discountenance the arguments and submissions of the Respondent on this issue.
RESOLUTION OF ISSUES
In resolving the issues as formulated by the parties, it appears to me that the determination of the merit in this appeal will be better met by adopting for determination the issues as formulated by the Appellant which as well covers that of the Respondent. Accordingly, the issues set out for determination are:
(1) Whether the trial Court was right in holding that the appellant has no defence when it closed its eyes to the statement of defence filed by the appellant on 23rd March, 2012 and amended statement of defence and counter-claim filed on 21st May, 2013- GROUND 4 AND 6.
(2) Whether the trial Court was right in admitting and relying on Exhibit P2, the record of proceedings in a criminal matter when same is inherently inadmissible in civil matter GROUND 5
(3) Whether in view of the evidence before the Court, the ingredients of malicious prosecution have been established by the Respondent to entitle him to judgment- GROUNDS 1 and 7.
(4) Whether the Respondent has any evidence before the Court upon which the Court could grant the reliefs of the respondent- GROUND 3.
(5) Whether the entire decision of the lower Court actually contain reason or reasons sufficient enough to enter judgment in favour of the Respondent as the entire judgment dated 3rd December, 2014 lacked reasons before arriving at same. GROUND 2.
ISSUE NO. 1
Whether the trial Court was right in holding that the appellant has no defence when it closed its eyes to the statement of defence filed by the appellant on 23rd March, 2012 and amended statement of defence and counter-claim filed on 21st May, 2013.

This issue is distilled from grounds 4 and 6 of the Appellant’s grounds of Appeal.
This issue arose out of the pronouncement of the learned trial judge when he held in his judgment at page 206 of the record thus:
My first consideration in this case is to consider the effect of the non-compliance with the order granted by my learned brother Hon. Justice Ogunmoye which was not compiled. The effect is that all evidence given in this case by the defendant is based on nothing as you cannot put something on nothing and expect it to stay there. It is an abuse of Court process.

Learned Appellant counsel had stated in his brief of argument that the Appellant filed his statement of defence with written depositions of his witnesses and other processes as required by the Ekiti State High Court (Civil Procedure) Rules 2011 on the 23rd March 2012. In defence of the suit at the lower Court, one Mr. Idowu Adejola testified as DW1 and stated that he deposed to a written statement on oath on 23rd March 2012 and same admitted as Exhibit D1.

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The Appellant himself also testified as DW2 and also stated that he deposed to a written statement on oath on 23rd March, 2012.
The Appellant later brought an application seeking leave of Court to amend his statement of defence. Though granted by the lower Court, the Appellant did not file the said Amended statement of defence and counter-claim until 21st May 2013 about ten months without leave of Court nor payment of penalty fees as required by the Rules of the Court.
The learned Respondent’s counsel cited Order 24 Rule 4 of the High Court Civil Procedure Rules 2011 and contended that the rules of Court must be obeyed and complied with. See A.G. Federation v. B1-Courtney Ltd(2012) 14 NWLR (PT. 467) 473, UGWU V. ARARUME (2007) ALL FWLR (PT. 377) 807. According to learned respondent counsel, it is trite that when a party failed to file his pleadings after he has obtained an order to amend same, the Court will rely on the unamended process. See NWANKWO V. ABAZIE (2003) FWLR (PT 180) 1407 AT 1424-1425.

Respondent’s counsel contended that there is an appraisal of the Appellants statement of defence contrary to the submission of the Appellant that they were denied a right of fair hearing. It is based on the above that the learned respondent counsel submitted that the learned trial judge was right when he held that the Amended statement of defence and counter-claim were not before the Court and any evidence given so far on it cannot stand as something can not be put on nothing. Even the original statement of defence but relied on it as the only defence before the Court. Reliance being placed on NWANKWO V. ABAZIE (SUPRA)
Order 24 Rule 4 of the High Court of Ekiti High Court (Civil Procedure) Rules 2011 provides:
If a party who has obtained an order to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within seven days from the date of the order, such party shall pay an additional fee of One Hundred Thousand Naira (N100.000.00)for each of default.”
On the other hand, Order 5 Rule 1(1) of the Ekiti State High Court (Civil Procedure) Rules 2011 states as follows:-
Where in the beginning or purporting to begin any proceeding or at any stage in the course of or in connection with any proceeding, there has by reason of anything done or left undone, being a failure to comply with the requirements of these rules whether of time, place, manner, form or contents or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order.”
A community reading of both provisions shows that the failure of the Appellant to comply with the order of Hon. Justice Ogunmoye to have the Appellants Amended statement of defence and counter-claim filed within time is merely an irregularity and does not vitiate the processes. Though the said Amended statement of defence and counter-claim were filed not within the time allowed, the Court in the interest of Justice has the inherent powers to suo motu extend time within which same ought to be filed with reliance being placed in the case of I.M.N.L V. OGE (1996) 3 NWLR (PT. 437) 422 where the Court held that:
Where a party files his statement of defence out of time, the Court ought not to disregard such statement of defence, rather the Court should suo motu, extend the time within which the amended statement of defence should be filed.
This, the lower learned trial judge did not do. The contention of the Appellant which I believe is that there is still a subsisting statement of defence which the lower Court ought to have taken along when considering and evaluating the case put forward by the parties. This is obvious because before the application for amendment, there was already in existence in the records, a statement of defence duly filed and put forward by the Appellant. Also, as rightly argued and submitted by the Appellant, that in the event that the lower Court chose to disregard the Amended statement of defence and counter-claim the Court ought to have fallen back to the original statement of defence duly filed by the Appellant and the evidence thereof. In view of the above, I am of the strong view that the learned trial Judge was in grave error when he held in his judgment that:
The effect is that all evidence given in this case by the defendant is based on nothing as you cannot put something on nothing and expect it to stay there. It is an abuse of Court process.

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Learned Respondent Counsel stated that there is a manifestation of the appraisal of the Appellant’s statement of defence by the trial judge as could be seen on pages 202-204 of the record of proceedings contrary to the submission of the Appellant. With respect to learned counsel, I do not seem to agree.
A look at pages 202-204 of the record of proceedings, the pages referred to only show a mere restated/reproduced record of proceedings vis-a-vis the evidence of the parties without resolving the issues of fact and the applicable law. That does not amount to an appraisal of the Appellants statement of defence and the evidence in support.
By so doing, the learned trial judge by shutting its eyes on the already filed and original statement of defence filed by the Appellant still went ahead to determine the suit solely on the pleadings and evidence of the Respondent. The lower Court has thereby breached the Appellant’s right of fair hearing and such a judgment so obtained is liable to be struck out. See OKUNGBOWA V. GOVERNOR, EDO STATE (2015) 10 NWLR (PT 1467) 257, ANYEBE V. ADESIYUN (1997) 5 NWLR (PT 505) 403 AT 426, UZUDA V. EBIGAH (2009) 15 NWLR (PT. 1163) 1, in the case of U.B.A. PLC V. EFFIONG (2012) ALL FWLR (PT 634) 172 AT 193 the Court held.
When a party has been effectively fenced off or shunted from its rightful position of being able to present its case/defence, such a party is at liberty to proclaim that it has been treated unfairly and that its constitutionally guaranteed right to fair hearing has been breach. Such a party who seeks redress must be given due attention, a listening ear and accorded requisite relief. Due process and observance of rule of law, do not reckon with inequality or double standard. All parties before a Court deserve to be treated fairly, have their cases determined on the merits and the dispensation of substantial and not technical justice. The era of technical Justice is fastly receding into the past. The new positive trend on the horizon is absolute, pristine and substantial justice. A Court in the course of determining the rights of parties must stand aloof, detached and dispassionate in its treatment of any matter before it. In the instance case, the trial Court erred by shutting out the defendant from presenting its case before giving judgment against it and the decision was therefore set aside on appeal.
See also MBANEFO V. MOLOKWU (2014) ALL FWLR (PT. 742) 1665.
This is not a case where the Appellant failed to utilize the ample opportunity given to him by the rules of Court and comes up to say that his right of fair hearing has been denied. The opportunity was not offered in the first place. The case of U.B.A. PLC V. EFFIONG (SUPRA) and MBANEFO V. MOLOKWU (SUPRA) are all relevant in this matter.
Accordingly I resolve this issue No. 1 in favour of the Appellant.
ISSUE 2
Whether the trial Court was right in admitting and relying on Exhibit P2, the record of proceedings in criminal matter when same is inherently inadmissible in civil matter?- GROUND 5.

During trial at the lower Court, the Respondent sought to tender Exhibit P2, the record of proceeding in MID/16M/2010 between the Commissioner of Police V Durojaye Segun Robinson and the trial Court admitted same amidst an objection by the Appellant. According to the respondent, Exhibit P2 is a record of proceeding and by virtue of such, comes under the category of a public document under Section 102 of the Evidence Act, 2011 which is admissible. What is more is that the said Exhibit met with all the requirements encapsulated in Section 104(1) and (2) of the Evidence Act 2011.
Whether a judgment or a record of proceedings as argued by the Respondent’s counsel, one thing is clear and undisputed. The said Exhibit P2 is not signed by the presiding Magistrate in all the proceedings even though it was certified by the registrar of the Court. It is the law of admissibility of a document which is essentially based on its relevancy and the weight to be attached thereto are different issues. Thus a document that is admissible may lack weight or evidential value. See the United Nigeria Insurance Co. Ltd v. Universal and industrial Co Ltd (1999) 3 NWLR (Pt 593) 17, Igwedibie v. Igwedibie (2013) LPELR-21258 (CA)
In the case of Jinadu & Ors V. Chief Israel Esurombi Aro & Anor (2009) 9 NWLR (PT. 1145) 55 (SC), the Supreme Court per Oguntade JSC (as he then was) held thus
I do not consider Exhibits R & S inadmissible in evidence but being documents not bearing the signatures of the makers, they should attract little or no weight.

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In Exhibit P2, the record of proceedings in respect of the following dates do not bear the signature or endorsement of the learned Magistrate as the presiding officer. i.e 19/8/2010, 7/10/2010, 8/11/2010, 13/12/2010, 17/2/2011, 24/2/2011 and 31/03/2011. Though Exhibit P2 was certified by the registrar of the Court, it does not show any level of regularity or should technicality be jettisoned as submitted by the Respondent Counsel. Without authorship, P2 cannot be clothed with the presumption of regularity prescribed by the Evidence Act 2011 and has therefore robbed Exhibit P2 of every evidential value. In AJAOKUTA STEEL CO LTD V. ROLE (2011) ALL FWLR (PT 563) 1931, the Court held thus:
In our jurisprudence, it is not enough that a document should be duly certified which goes to admissibility, but in order to be acted upon there must be evidence of date and authorship. Even a judgment or ruling of a Court will be worthless if it was merely certified by a registrar but without the name or signature of the judge or justice who delivered it and the date of delivery.
Section 62 of the Evidence Act, 2011 provides that:
Judgments, orders or decrees, other than those mentioned in Sections 59, 60 and 61 are inadmissible, unless the existence of such judgment, order or decree is a fact in issue or is admissible in evidence by virtue of this Section.
Exhibit p2 (record of proceedings) not being a judgment, order or decrees other than those mentioned in Sections 59, 60, and 61 of the Evidence Act are inadmissible as it is not a fact in issue in this suit.
The Courts have consistency held that the record of proceedings in a criminal trial is not admissible in civil matters. In Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307 at 353-354 the Apex Court held that:
Record of proceedings in a criminal proceeding is inadmissible as evidence in a civil proceeding. In the instant case, the admission of the record of criminal case in which the 1st respondent was convicted was wrong notwithstanding that there was no objection to is admission in evidence.
Also, in the case of ALI V. UGWU (2012) ALL FWLR (Pt 619) 1078 @ 1111, the Court held that:
Record of proceedings in a criminal proceeding is inadmissible as evidence in a civil proceeding.”
In view of all the above defects inherent on Exhibit p2, it is apparent that Exhibit P2 is not admissible in law, and as a result it can not be the basis upon which the learned trial Court could rely in reaching his decision when he held thus:
I hold that the defendant has maliciously prosecuted the claimant. See Exhibit P2- which is MID/16C/2010 Commissioner of Police v. Durojaiye Segun Robinson wherein the accused was discharged and acquitted, Exhibit P1 and Exhibit D3.
The learned trial judge was in grave error of law when he admitted and relied on Exhibit P2 which is a record of proceedings in a criminal matter and an inadmissible document in reaching a decision in this matter.
I therefore resolve issue 2 in favour of the Appellant.
ISSUE NO. 3
Whether in view of the evidence before the Court, the ingredients of malicious prosecution have been established by the Respondent to entitle him to judgment.

For a claimant to succeed in an action for malicious prosecution, he must plead and prove with credible and cogent evidence the following ingredients;
(a) That the defendant put the machinery of prosecution on motion.
(b) That the result of the criminal action is a favour of the accused.
(c) That the defendant has no reasonable cause to prosecute the accused.
(d) That the prosecution is as a result of malice.
See the case of Balogun V. Amubikahun (1989) 3 NWLR (Pt. 107) 18.
The Respondent must prove all the above ingredients concurrently in order to establish a case of malicious prosecution and failure to prove any one of the above ingredients, his claim will fail and be dismissed.
The ingredients for the tort of malicious prosecution must be proved. Appellant counsel, stated that it merely made a report or complaint of the destruction of his crops without more to the police and cannot be said or held as setting the law on motion against the respondent leading to his prosecution. The Respondent contend that the prosecution of the Respondent was without any reasonable cause which same was not proved.
From the pleadings of the parties, it is clear that the parties have joined issues on the element of whether it was the Appellant who prosecuted the respondent by setting the law in motion against him or not.

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At this stage, the matter has become one of proof by evidence.
What was the evidence adduced in proof on the balance of probabilities by the parties? The relevant part of the evidence given by the respondent on whom the legal burden of proof lies, can be found on the evidence of both DW1 and DW2 (herein before referred) that the appellant gave an uncontroverted evidence before the trial Court that the Appellant merely lodged a complaint to the Police, that the Respondent sprayed chemical (herbicide) on his farm hereby destroying his crops.
Dw1-Mr Jide Adeyola gave evidence to the effect that he saw the claimant (Respondent) while spraying herbicides on the crops of the Appellant. That despite several attempts to stop him, he refused and went on spraying the crops with chemical and maliciously damaged the crops. He also gave evidence that the Appellant merely reported the case to the Police at Ido Ekiti who investigated same. The police in carrying out its statutory functions arrested the respondent and at the conclusion of their investigation charged the respondent to Court. By the above, a reasonable and probable cause has been established to warrant the prosecution of the respondent contrary to the submission of the Respondent Counsel. See Balogun v. Amubikahun (Supra)

In his own, the Respondent said that the police investigated the complaint made by the Appellant against him and took him to Court but that the Appellant and not the police that insisted that he be prosecuted.
Above is the state of the case presented before the Court below by the Appellant and respondent. The question that arises from the pleadings and evidence of the parties is whether the Appellant can be said to have prosecuted the respondent in the sense that he set the law in motion for the prosecution against him.
For the purposes of the claim for malicious prosecution, to be liable, a defendant must be actively instrumental in setting the law in motion for the prosecution of plaintiff. Within the context, to prosecute is to deliberately and actively initiate or instigate by way of a direct appeal to or pressure on a person with judicial authority with regard to a complaint or report made that the plaintiff be charged and put to trial.
Thus for a defendant to be shown to have set the criminal law in motion against a plaintiff, it must be proved by evidence that the defendant had in any manner directly influenced the police in the decision to charge the plaintiff to Court on the complaint made.
Accordingly, an action for malicious prosecution will not lie against a person who merely gave an information to the police by a report or complaint of the commission of an offence which led the police on their own initiative to arrest, and eventually charge another to Court after their investigation of the complaint. The position is also the same in respect of a report or complaint made to the police where a particular person is named (as in this present appeal) as the person found spraying herbicides on farm crops, and the person is subsequently arrested, charged and prosecuted by the police on their own volition. In all these situation, a defendant can not be said to have been instrumental or actively set the law in motion for the prosecution because the police had the option and liberty to deal with the matter with the outcome of their investigations of the complaint made to them. If the evidence did not show that the defendant influenced the police in any way in the decision to prosecute a plaintiff, then the prosecution cannot and will not properly be attributable to the defendant, but to the police. See BALOGUN V. AMUBIKAHUN (SUPRA), NWADINOBI V. BOTU (2000) 9 NWLR (PT 672) 220, SPDC V. OLAREWAJU (2002) 16 NWLR (PT 792) 38, ADEYEMO V. AKINTOLA (2004) 12 NWLR (PT 887) 390, OJO V. LASISI(SUPRA)
In this appeal, the evidence of the Appellant summarized earlier, did not show or establish that the appellant did anything to influence the prosecution of the respondent apart from making a report or complaint to the police that the respondent sprayed herbicides on his farm and destroyed same as it was not an accusation as shown by DW1 & DW2. In order words, the evidence of the respondent did not show that apart from making a report or complaint to the police about the destruction of his farm, the appellant influenced the police in any other way or manner in the decision to charge him to Court over the complaint. As a result, there is no evidence on the basis of which the appellant can properly and reasonably be found to have prosecuted the respondent in respect of the complaint.

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My finding on this ingredient of the offence of malicious prosecution is that it was not proved in evidence on the balance of probabilities by the evidence of the respondent. This ingredient of the offence of malicious prosecution appears to be the foundation on which the claim for malicious prosecution could be built and without which it will automatically collapse.
For the avoidance of doubt, my decision is that from or on the available evidence before the Court below, a case of malicious prosecution of the Respondent was not made out against the Appellant.
On the basis of the above. I hereby resolve issue 3 in favour of the Respondent.
Issue 4
Whether the Respondent has any evidence before the Court upon which the Court could grant the reliefs of the Respondent.” (Ground 3)
Learned Appellant Counsel submitted that the Respondent failed to adduce any legally admissible evidence before the lower Court upon which the lower Court can enter judgment unlike the Appellant. He contended that the statements of the Respondents i.e Exhibits PW1, PW4 and PW5 were not adopted in order to give it a legal effect as evidence in Court. Written statements on oath unlike affidavit must be adopted and relied on by a witness before it becomes evidence.
On the other hand, learned Respondent counsel submitted that the entire argument of the Appellant Counsel’s on this issue is misconceived, mis-applied and certainly not the law because it is all about technicality. The Respondents witness statements on oath were filed at the Registry of the trial Court on the 18th November, 2011. I do not think that the Respondent’s counsel appreciates the legal point being made by the Appellant under this issue. It is not in doubt that the Respondents statements on oath were filed in the registry of this Court on the 18th November, 2011. Upon all that, were the statements respectively adopted by the witness in open Court? In fact, the statements on oath ought to have been adopted first before admitting them as Exhibits. Having done it the other way round, there is still the need for them to be adopted before they can become the evidence on oath of the witnesses before the Court. In AREGBESOLA V. OYINLOLA (2011) 9 NWLR (PT 1253) 562 at 563 where the Court held:
Once the statement of a witness once adopted becomes his evidence-in-Chief and the Court is under a duty to evaluate same and merely to treat same as mere allegation requiring additional proof as done by the trial in this case.
The argument and submission of the Respondent that both the Respondent and other witnesses were sworn on Holy Bible and subsequently cross-examined by the Appellant while in the witness box is enough to off-set any defect does not hold water. This is not an issue that borders on technicality as the learned Respondent counsel would like the Court to believe. I therefore resolve this issue in favour of the Appellant and against the Respondent.
ISSUE 5
Whether the entire decision of the lower Court actually contain reason or reasons sufficient enough to enter judgment in favour of the respondent as the entire judgment dated 3rd December, 2014 lacked reasons before arriving at same. Ground 2

It is the contention of the Appellant’s Counsel that the judgment of the lower Court lacks the flavour and attributes of a good judgment as stated in Oro v. Falade (1995) 5 SCNJ 10 at 31 Per Ogwuegbu JSC (as he then was) which must contain;
(1) Issues or questions to be decided.
(2) Essential facts and evidence or in appeal, the argument in support of each case,
(3) Resolution of the issues of fact or law,
(4) Conclusion or general inference from the fact and the law as resolved; and
(5) The verdict, terminal and consequential orders.”
Learned Appellant counsel submitted that the judgment of the lower Court is devoid of reasons and that the Court should set it aside and allow the appeal.
On the other hand, learned Respondent Counsel submitted that if the decision is right and only the reasons are wrong, an appellate Court will not interfere with the decision. What matters is that if the correct conclusion is reached and not sufficient or wrong reason. See EKPO V. STATE (2003) 17 NWLR (PT. 849) 392, ABIYE V. OFILI(1986) 1 NWLR (PT 15) 134.
It is true that what matters is whether the conclusion reached is right and not the reasons for attaining the conclusion. However, it is to be noted that evaluation of evidence demands that the evidence adduced by both parties be assessed and weighed so as to give value or quality to it.
Hence the mere recital of the evidence as I stated before without more is inadequate and not in tandem with assessment and evaluation. Expressions such as I believe, I do not believe or that a witness of truth without record showing how the Court arrived at its conclusion and preferring one piece of evidence to the other will definitely fall short of the required procedural standard and requirement in this regard. See ALAKE V. STATE (1992) 9 NWLR (PT. 265) 260.

The trial Judge failed to do same as a result, I resolve this 5th issue in favour of the Respondent.
In the final result, I find merit in this appeal and for the reasons set out in the body of this judgment, I hereby allow same.
Consequently, the judgment of the lower Court in suit No: HID/18/2011 between ADEJOLA ADEPOJU ADEBOWALE AND MR DUROJAIYE SEGUN ROBINSON delivered by Hon. Justice Adewale Kayode Fowe on the 3rd December, 2014 is hereby set-aside. Also for failure to prove the tort of malicious prosecution against the Appellant in accordance with established principles of law at the lower Court, the claim of the Respondent at the lower Court is hereby dismissed.
I hereby award a cost of N50, 000.00 in favour of the Appellant payable by the Respondent.
Appeal Allowed.
AHMAD OLAREWAJU BELGORE, J.C.A.: I had a preview of the lead judgement just delivered by my learned brother P. O. Elechi, JCA.
I am in complete agreement with the reasoning and conclusion that the appeal is meritorious and should be allowed.
I also allow the appeal and abide by the consequential orders therein including that for cost.
FATIMA OMORO AKINBAMI, J.C.A.: I agree.