AGBALUGO & ANOR v. IZUAKOR

The matter proceeded to trial and in the course of which the Respondent called nine witnesses and the Appellants called three witnesses. At the conclusion of trial and after the rendering of final addresses by Counsel to the parties, the lower Court entered judgment wherein it found in favour of the Respondent and it awarded the sums of N30,000.00 and N350,000.00 as special and general damages respectively for malicious prosecution and false imprisonment. The lower Court dismissed the other claims of the Respondent and the counterclaim of the Appellants. The Appellants were dissatisfied with the judgment and they caused their Counsel to file a notice of appeal dated the 27th of October, 2015 against it and the notice of appeal contained eleven grounds of appeal.
In arguing the appeal before this Court, Counsel to the Appellants filed a brief of arguments dated the 16th of November 2015 and in response to which the Counsel to the Respondent filed a brief of arguments dated the 25th of October, 2016 on the 31st of October, 2017 and which brief of arguments was deemed properly filed by this Court on the 16th of January, 2017. Counsel to the Appellants filed a reply brief of arguments dated the 27th of January, 2017. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments as their oral submissions in the appeal.
Counsel to the Appellants distilled five issues for determination in the appeal and there were:
i. Whether the trial Judge was right when he held that the Respondent pleaded and proved all the necessary requirements of malicious prosecution.
ii. Whether the trial Judge was right when he held that the Respondent established, on the preponderance of evidence, the case of false imprisonment against the Appellants.
iii. Whether in view of the non-joinder of the Police as a party to the action, the trial Judge was right when he held that the Appellants were liable for the torts of malicious damage and false imprisonment.
iv. Whether the trial Judge was right when he dismissed the Appellants’ counterclaim despite the fact that the Appellants led uncontroverted evidence in proof of the counterclaim.
v. Whether the trial Judge properly and dispassionately evaluated the pleadings, evidence and addresses of the respective parties before reaching a conclusion granting part of the claims sought by the Respondent and dismissing the Appellants’ counterclaim.
In arguing the first issue for determination, Counsel to the Appellants stated that to establish a case of malicious prosecution, a claimant is expected to conjunctively plead and prove by credible evidence that a defendant set the law in motion which led to a criminal charge being brought against him, that consequent on the prosecution, he was discharged and acquitted, that his prosecution by the defendant was completely without reasonable and probable cause and that the prosecution was actuated by

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the malice of the defendant against him and that failure to prove any of the four ingredients is fatal to a claim for malicious prosecution; Counsel relied on the cases of Balogun Vs Amubikahun (1989) 3 NWLR (Pt 107) 18, Isheno Vs Julius Berger (Nig) Plc (2003) 14 NWLR (Pt 840) 289, Ebinighe Vs Achi (2011) 2 NWLR (Pt 1230) 65, amongst others. Counsel stated that in the instant case the Respondent failed to lead cogent evidence to show that, apart from making a complaint to the Police, it was the Appellants that set the law in motion leading to the charge proffered against him and that this fact was admitted by the Respondent under cross-examination as the ninth plaintiff witness. Counsel stated that apart from making a complaint, the law is that there must be evidence in proof of the fact that the Appellants further instigated the prosecution of the Respondent and that the lower Court was thus in error when it found that it was the Appellants that set the law in motion for the prosecution of the Respondent and he referred to the case of Ebenighe Vs Achi supra.

On whether the Respondent was discharged of the allegation after trial, Counsel stated that a discharge without an acquittal cannot ground a claim of malicious prosecution and that the lower Court was thus in error when it found that the discharge of the Respondent by the Magistrate Court after a successful plea of no case submission was tantamount to a default acquittal and he referred to the case of Ojo Vs Okitipupa (2001) 9 NWLR (Pt 791) 679. Counsel stated that the Respondent also failed to lead evidence to establish that his prosecution was completely without any reasonable and probable cause and that the second defence witness gave unchallenged evidence showing that the Respondent violated the Appellants’ right of privacy to their homes guaranteed under Section 37 of the Constitution of the Federal Republic of Nigeria 1999 and that this gave the Appellants the right and justification to seek the protection of the law by reporting to the appropriate authorities and he referred to the case of PGSS Ikachi Vs Igbudu (2005) 12 NWLR (Pt 940) 543. On whether the prosecution of the Respondent was actuated by malice, Counsel stated that the Respondent did not plead malice and that the inference of malice drawn by the lower Court from the fact of the existence ill feelings between the rival factions of the union headed by the Respondent and first Appellant was baseless because there were other facts led in evidence which justified the complaint made by the first Appellant to the police and which led to the charge against the Respondent and he referred to the case of Ebenighe Vs Achi supra.

Counsel stated that it was evident from the above that the finding of the lower Court that the Respondent established the claim for malicious prosecution was erroneous and unfounded and he urged this Court to resolve the first issue for determination in favour of the Appellants.
On the second issue for determination, Counsel stated that for an action for false imprisonment to lie against a person, two conditions must be satisfied – whether there was reasonable cause which led the defendant to lodge a complaint to the police and the presence or absence of malice in the act of the defendants and that malice in the act of the defendant is not considered in the sense of spite or hatred against the plaintiff but of bad intention and denoting that the defendant was actuated by improper and indirect motives and he referred to the case A.C.(O.A.O) Nig Ltd Vs Umanah (2013) 4 NWLR (Pt 1344) 323. Counsel stated that, as argued under the first issue for determination, the Respondent did not lead evidence to show that the Appellants did not have reasonable or probable cause to report the criminal complaint to the police which resulted in his arrest and neither did he establish that the Appellants did more than just complaining and that they actively caused, participated, directed and influenced his arrest and he referred to the cases of Afrilec Ltd Vs Lee (2013) 6 NWLR (pt 1349) 1 and Obiegue Vs AG Federation (2014) 5 NWLR (Pt 1399) 171. Counsel urged the Court to resolve the issue for determination in favour of the Appellants.
On the third issue for determination, Counsel

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stated that the claims of the Respondent for malicious prosecution and false imprisonment ought to fail for failure of the Respondent to join the Police as a party in the suit and this is because it was the Police that arrested, charged and prosecuted him and that his claims against the Appellants alone was an attempt to transfer liability to the Appellants for acts done by the Police in pursuance of their duty as prescribed under the law and he referred to the case of Afrilec Ltd Vs Lee supra. Counsel stated that failure to join the Police or to at least, call them to give evidence on the role played by the Appellants in the arrest and prosecution of the Respondent meant that the liability of the Appellants could not be completely and effectually determined. Counsel urged the Court also resolve this issue for determination in favour of the Appellants.
On the fourth issue for determination, Counsel stated that the Appellants as counter-claimants led evidence in the lower Court to show that on the 4th of January, 2000 the Respondent along with six other persons, two of whom were bailiffs of Court, went to the residence of the Appellants with a view to serve the first Appellant with a Court process and that they were informed that the first Appellant was not at home, and that rather than turn back to come on another day, they forced their way into the house of Appellants, believing that the first Appellant was evading service, and they called the second Appellant and her son all sorts of names. Counsel stated that Section 37 of the Constitution of the Federal Republic of Nigeriaguarantees every citizen of Nigeria the right to privacy of his home and that where the right is violated, the citizen is entitled to seek redress in a Court of law and that similarly, trespass is a civil wrong which is actionable per seand that the action of the Respondent amounted to trespass for which an action for damages would lie and he referred to the cases of Madubuonwu Vs Nnalue (1992) 8 NWLR (Pt 260) 400 and Chukwu Vs Akinpelu (2014) 13 NWLR (Pt 1424) 359, amongst others. Counsel stated that neither the Respondent who acted as pointer nor the bailiffs who went with him to effect service of Court process on the first Appellant had the right to force their way into the premises of the Appellants and that the law provides for substituted service where personal service is impossible. Counsel stated that the lower Court was thus wrong when it failed to find for the Appellants on their counterclaim and he referred to the cases of UAC (Nig) Plc Vs Akinyele (2012) 15 NWLR (pt 1322) 1 and SPDC (Nig) Ltd Vs Ekwems (2009) 4 NWLR (Pt 1131) 229. Counsel urged the Court to resolve this issue for determination in favour of the Appellants.
On the fifth issue for determination, Counsel stated that the lower Court had the duty to evaluate the entire evidence led before it in the light of the pleadings of the parties before making its findings and he referred to the cases of Skye Bank Plc Vs Akinpelu (2010) 8 NWLR (Pt 1198) 179 and Dimkpa Vs Chioma (2010) 9 NWLR (Pt 1200) 482. Counsel stated that lower Court breached the duty as it did not properly consider the evidence by the Appellants in the defence of the claims of the Respondents and he thereafter traversed through the evidence led by the second and third defence witnesses and stated that the evidence of the witnesses was not mentioned or evaluated in any part of the judgment. Counsel stated that the judgment of the lower Court was fraught with errors in law and fact and he listed the errors as granting claims predicated on a non-existent statement of claim, violation of the principle of double compensation by the grant of special and general damages, granting of damages not borne out by the reliefs sought by the Respondent, granting of legal fees as special damages, and failing to consider all the issues raised by the Appellants. Counsel stated that the highlighted errors led to perversity and a miscarriage of justice being occasioned to the Appellants and that this was a proper case for this Court to intervene to set aside the judgment.

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Counsel concluded his arguments by urging the Court to allow the appeal, set aside the judgment of the lower Court and to enter judgment in favour of the Appellants on their counterclaim.
In his response, Counsel to the Respondent adopted the five issues for determination in the appeal formulated by Counsel to the Appellants. In arguing the first issue for determination, Counsel stated that the Supreme Court had long settled the four ingredients that must be proved by a plaintiff to succeed in a case of malicious prosecution and these were
(i) that he was prosecuted by the defendant (ii) that the prosecution was determined in his favour; (iii) that it was without reasonable and probable cause; and (iv) that it was malicious and he referred to the case of Usifo Vs Uke(1958) SCNLR 109. Counsel stated that the Respondent pleaded and proved the four ingredients by credible evidence and that Counsel to the Appellant missed the point when he stated that discharge on a no case submission cannot sustain a case of malicious prosecution and that the law is that the requirement that the case must terminate in favour of the plaintiff does not mean that the plaintiff is discharged on the merits and that it is sufficient that the plaintiff was discharged or that the Attorney General entered a nolle prosequi staying further proceedings or that the plaintiff was acquitted of the charge in question and he relied on the case of Usifo Vs Ukesupra.
On the third ingredient, Counsel stated that it is a matter of law and that in the case of Usifo v. Uke supra the Supreme Court defined reasonable and probable cause as an honest belief in the guilt of the accused based on full conviction, founded upon reasonable ground of the existence of a set of circumstances which assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed. Counsel stated that, in the instance case, the Respondent went in the company of Court bailiffs and registrars to serve a Court process on the first Appellant only for the first Appellant to rush to the police to make false and grievous allegations against the Respondent and when these allegations would not stand, another allegation was substituted in the name of the second Appellant that the Respondent assaulted her and invaded her privacy. Counsel stated that it was obvious from the evidence led that the allegations made by the Appellants were trumped up and not based on any reasonable and probable cause. On the fourth ingredient of malice, Counsel stated that this was evident from the evidence led by the plaintiff witnesses and that the allegations were in fulfillment of the boasts made by the first Appellant to deal with the Respondent for intervening in a case on an intra union dispute. Counsel urged this Court uphold the findings of the lower Court and to resolve the first issue for determination in favour of the Respondent.
On the second issue for determination, Counsel stated that the wrong of false imprisonment consists of the act of arresting or imprisoning any person without lawful justification from exercising his right of leaving the place in which he is and it may also be committed by continuing a lawful imprisonment longer than is justifiable and he referred to the case of Iyalehue Vs Omoregbe (1991) 3 NWLR (Pt 117) 94, Counsel stated that it was not in dispute that the Respondent was arrested and detained in a police cell for six hours on the complaints and at the instigation of the Appellant and that what was in context was whether the Respondent trespassed and assaulted the second Appellant. Counsel stated that the finding of the lower Court that the detention was by reason of the malicious and false report of the Appellants is supported by the unchallenged evidence of the first and fourth plaintiff witnesses on record and that the Appellants are not entitled to the protection of the innocent complaints, in the circumstances of this case and he referred to the case of SPDC (Nig) Ltd Vs Olanrewaju (2004) 16

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NWLR (Pt 792) 38. Counsel urged the Court to also resolve this issue for determination in favour of the Respondent.
On the third issue for determination, Counsel stated that the issue of non-joinder of the Police and the “transfer of liability” was not raised and/or canvassed before the lower Court by either of the parties and it was not ruled upon by the lower Court in the judgment and that as such it was, at best, a fresh issue and which the Appellants could only raise after obtaining the leave of Court to do so, Counsel stated that the Appellants did not obtain the leave of Court to raise the issue and it was thus dead on arrival and he referred to the cases of Gwede Vs INEC(2014) NWLR (pt 1438) 55, Olonade Vs Sowemimo (2014) 14 NWLR (Pt 1428) 472, amongst others. Counsel stated that nevertheless, while the Nigerian Police might have been a witness, it was not a necessary party to the suit and that the burden of proof was on the Appellants to prove that they merely made a complaint to the Police without more or to apply to join the Nigerian Police as co-defendants and that the claims of the Respondent cannot be defeated by the non-joinder of the Police and he referred to the case of Osun State Govt Vs Dalami (Nig) Ltd (2007) 7 NWLR (pt 818) 72. Counsel urged the Court to resolve the issue for determination in favour of the Respondent.
Counsel predicated his entire arguments on the fourth issue for determination on the failure of the Appellants to transmit the portion of the evidence of the Respondent, as the ninth plaintiff witness, before the lower Court wherein he denied and contested the counterclaim of the Appellants and he stated that the records of appeal was thus incomplete and cannot sustain the appeal and that the appeal should be struck out; he relied on various case law authorities. The Appellants had subsequently compiled and transmitted a supplementary record of appeal containing the said portion of evidence and the supplementary record of appeal was deemed properly compiled and transmitted on the 15th of March 2017. This took the wind out of the sail of the arguments of Counsel on this issue for determination.
With respect to the fifth issue for determination, Counsel stated that the duty of the lower Court was to evaluate the evidence led by the parties and not the final addresses of the parties and that in the judgment, the lower Court acknowledged the final addresses of the parties and properly evaluated the evidence led by the parties on the issues pleaded. Counsel stated that it was incorrect that the judgment of the lower Court was fraught with errors and that the allegation that the lower Court predicated the judgment on a non-existent statement of claim is baseless because the parties were ad idem on the fact that the case was fought on the basis of the amended statement of claim of the Respondent and which the lower Court deemed properly filed and served in a Ruling delivered on the 4th of November, 2005. Counsel stated that thus the reference made by the lower Court to an amended statement of claim dated 27th of May, 2004 was a slip and for which the Appellants did not suffer any miscarriage of justice and he referred to the case of Emirates Airline Vs Ngonadi (No 1) (2014) 9 NWLR (pt 1413) 506. On the claim for legal fees, Counsel stated that the law is that it can be claimed by a party and awarded by the Court as special damages and that this was what happened in this case and he referred to the case of Intercontinental Bank Ltd Vs Brifina Ltd (2012) 13 NWLR (Pt 1316) 1. On the issue of the award of special and general damages amounting to double compensation, Counsel stated that the Respondent made the claims for special and general damages separately and proved his entitlement to them and the award of the two types of damages did not amount to double compensation.
Counsel concluded his arguments in the appeal by urging this Court to find no merits in the appeal and to dismiss same and affirm the judgment of the lower Court.
Now, the case of the Respondent on the pleadings before the lower Court was that he and the first

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Appellant were members of the Umunnachi Improvement Union, Jos and that the Union was split into two factions because the first Appellant unlawfully imposed himself as the President of the Union and that one faction was headed by the first Appellant and the other faction by Chief Ikechukwu Ezeoba, Godwin Ejindu, Simon Anyadubala and others and that he belonged to the other faction. It was his case that the dispute between the factions was reported to the Mother Union in their native town in Anambra State and that it was agreed that the Central Executive Council of the Mother Union would come to Jos to resolve the dispute and conduct an election. It was his case that on return to Jos, however, the first Appellant commenced an action in the name of Ummunachi Improvement Union Jos against the Mother Union in Suit No PLD/J307/1997 and obtained an order of interim injunction to restrain the Mother Union and all the members of the Union from, holding a meeting in Jos. It was his case that the leaders of the other faction applied to loin the suit to challenge the propriety of the first Appellant ro use the name of Ummunachi Improvement Union Jos to commence the action without authorization of the members and they were duly joined.
It was the case of the Respondent that the action of the other faction joining the suit angered the first Appellant and he warned the leaders and the other members of the faction that he would use his influence and connections to deal with them ruthlessly and the first Appellant thereafter commenced contempt proceedings against the leaders of the other faction and that on the 17th of December, 1999 the leaders were committed to prison for thirty days and whereupon the members of the other faction filed an appeal before this Court and a motion for bail pending the appeal. It was his case that the first Appellant boasted that he would ensure that the Court of Appeal did not hear the motion for bail until the expiration of the thirty days and the first Appellant started dodging the bailiffs of the Court of Appeal in evasion of the service of the Court processes. It was his case that on the 5th of January, 2000, the Appellants falsely and maliciously and without reasonable and probable cause made a complaint to the Area Commander of the Nigerian Police in Jos that he, sometime on the 4th of January, 2000 came to the Appellants residence to insult and assault the second Appellant and that based on the complaint, he was arrested and detained by the Police between 11am and 6.45pm before he was granted bail.
It was his case that the 11th of January 2000, he was charged to Court along with the bailiffs of the Court of Appeal for criminal conspiracy, criminal trespass and criminal intimidation on the instigation and insistence of the Appellants and that even when the charges were withdrawn on the 3rd of March, 2000 by reason of a letter addressed by the Deputy Chief Registrar of the Court of Appeal to the Commissioner of Police and the Chief Judge, the Appellants insisted that he must be charged and he was re-arraigned under another First Information Report dated 3rd of March, 2000. Counsel stated that the Appellants caused his arraignment to be broadcast repeatedly for two days on the FM Radio, Plateau, Jos and also to be published in the newspapers and electronic media. It was his case that he appeared in the Magistrate Court thirty-three times on the criminal charge until the same was dismissed by the Magistrate Court on the 16th of October, 2004 on the strength of a no case submission made on his behalf.
The Appellants admitted that they and the Respondent were members of the Umunnachi Improvement Union, Jos and that there was a division within the Urban which prompted the parent Union based in Anambra State to act and it was their case that the first Appellant commenced the action in Suit No PLD/J307/1917 to challenge the constitutionality of the dissolution of the Umunnachi Improvement Union, Jos by the parent body. The first Appellant denied threatening anybody and it

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was their case that Chief Ikechukwu Ezeoba, Godwin Ejindu, Simon Anyadubala and others were committed for contempt for violating the orders of Court and that the first Appellant had no power or control over the actions of the Court and did not evade service of Court processes. It was their case that the report they made to the Police against the Respondent was founded on trespass amongst others and that the decision to arrest and to subsequently arraign the Respondent was entirely that of the Police and that they had no power to prosecute the Respondent and also that the decision to terminate the first charge against the Respondent and the bailiffs of Court and to substitute it with another charge against the Respondent alone was also that of the Police and that they exerted no influence on the Police to make the decision. It was their ease that the Respondent was not acquitted but was merely discharged by the trial Magistrate and that the charges were not dismissed and that the Respondent did not suffer any damage by reason of his prosecution and/or the institution of the proceedings against him.
It was their case on the counterclaim that on the 4th of January, 2000, the Respondent, in the company of five other persons, came to their residence and that upon arrival, they started shaking the gate of the premises showing that the first Appellant should come out and that the second Appellant, attracted by the noise, went out to meet the Respondent, and his co-travelers, to inquire about their mission in their house and that these persons threatened violence against the second Appellant and coerced her to open the gate. It was their case that the Respondent, and his co-travelers, then entered into their residence on the pretext that they wanted to serve Court processes on the first Appellant despite being informed by the second Appellant that the first Appellant was not at home. It was their case that the entry of the Respondent into their residence was wrongful and it amounted to a breach of their right of privacy guaranteed by the Constitution of the Federal Republic of Nigeria 1999 and for which they suffered damages.
In response to the counterclaim, the Respondent denied ever entering into the residence of the Appellants either alone or in the company of other persons and also denied shouting at the gate of the residence of the Appellants, either alone or in the company of other persons, and/or threatening the second Appellant or ordering the second Appellant to open the gate of their house. It was his case that he did not violate the right of privacy of the Appellants on the 4th of January, 2000 and that the motive for the entire actions of the Appellants against him was to intimidate and/or frighten him from further supporting the other faction of Umunnachi Improvement Union, Jos in the ongoing case is Suit No PLD/J307/1997.
The major complaints of the Appellants in this appeal are against the findings made by the lower Court on the claims of the Respondent for malicious prosecution and false imprisonment and on their counterclaim. They alleged that the lower Court did not properly evaluate the evidence led by the parties, particularly by the second and third defence witnesses, in making the findings. It is trite law that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the context of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation – Guardian Newspapers Ltd Vs Ajeh (2011) 10 NWLR (Pt 1256) 574, Nacenn Nigeria Ltd Vs Bewac Automotive Producers Ltd (2011) 11 NWLR (Pt 1257) 193, Wachukwu vs Owunwanne (2011) 14 NWLR (Pt 1266) 1.
It is the primary responsibility of a trial Court to hear the parties, watch and observe the demeanour of witnesses called to testify before it, admit or reject documents tendered, ascribe probative value to the evidence and then come up with a decision. Where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due

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weight so long as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Ajibulu Vs Ajayi (2014) 2 NWLR (Pt. 1391) 483, Ikumonihan Vs State (2014) 2 NWLR (Pt 1392) 564.

A decision of a Court is said to be perverse (a) when it runs counter to the evidence and pleadings; or (b) where it has been shown that the trial Court took account of matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) when such a decision has occasioned a miscarriage of justice; or (d) when the circumstance of the finding of facts in the decision are most unreasonable- Onu Vs Idu (2006) 12 NWLR (Pt 995) 657, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217.
It is only where the appellate Court finds some dereliction of duty in the evaluation of evidence that it will step in or interfere to do what the trial Court should have done. This is also applicable, where in evaluating evidence, a wrong conclusion is reached by the trial Court – Nagogo Vs Congress for Progressive Change (2013) 2 NWLR (Pt 1339) 448 and State vs Rabiu (2013) 8 NWLR (Pt 1357) 585.

The query is – whether the complaints of the Appellants are justified. The torts of malicious prosecution and false imprisonments are similar, but they will be considered separately in this judgment. On the claim for malicious prosecution, the lower Court, after restating the law and requirements for success on such a claim, said in the judgment thus:
“There is no doubt whatsoever, from the oral and documentary evidence adduced in this Court on both sides that the plaintiff and others were prosecuted at the Chief Magistrate Court Jos on the complaint of the defendants for the following criminal offences or charges on a First Information Report (i) criminal conspiracy under S. 97 of the Penal Code, (ii) intimidation render S. 397 Penal Code and (iii) trespass under S. 349 of the Penal Code. The evidence is very clear that though the defendants were not the prosecutors, but that they set the law in motion which led to the arrest, detention and prosecution of the plaintiff along with others. The evidence is also very clear both from the oral and documented that the plaintiff with those others were discharged of the offences after evidence was taken and no case submission made on their behalf was sustained or upheld … The defendants have contended that the plaintiff was merely discharged and not acquitted and so has failed to establish this requirement of this tort. The evidence as I have pointed out shows that the plaintiff was discharged based on upholding of the no case submission made on his behalf by his counsel. This discharge though a discharge, but in my view is a default acquittal. This in other words is discharge on the merits and amounts to a acquittal.
The next issue is whether from the facts and circumstances of the prosecution of the plaintiff, the prosecution can be one without reasonable and probable cause. The evidence shows both from the proceedings at the Magistrate Court, and in this Court particularly that of PW1 and PW4 who are officials of the Jos Division of the Court of Appeal, that the plaintiff and other persons had merely taken the PW1, PW4 to show them the defendants residence in order to serve some Court process on the first defendant, no more no less. This, in my view, is normal, that parties in litigation usually serve as pointers to Court bailiffs. I believe this is the role the plaintiff must have played. The mere presence of the plaintiff, particularly in these circumstances, cannot be imported with criminality leading to his prosecution. I hold that from the evidence before this Court particularly the proceedings and ruling of the Chief Magistrate, that

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the prosecution of the plaintiff at the Chief Magistrate Court Jos was without reasonable and probable cause.”
The lower Court continued that:
“The last but not the least of the requirement is that the prosecution was as a result of malice by the defendants against the plaintiff. From the evidence it is not in dispute that parties are members of Umunnachi Improvement Union (UIU) Jos branch. That there was later a split in the said union. That the defendants and the plaintiff belonged to rival factions. That there has been a lot of acrimony between members of the factions each trying to undo the other. I believe the prosecution of the plaintiff and other at the Chief Magistrate Court Jos was actuated by these ill-feelings that existed between the rival factions of their union. I believe the baseless prosecution of the plaintiff at the Chief Magistrate Court Jos based on the complaint of the defendants was in bad faith and in my view has been as a result of malice by the defendants against the plaintiff.
I am satisfied therefore that the plaintiff has pleaded and proved all the necessary requirements of malicious prosecution against the defendants.”
The conditions that must be established by a person seeking to maintain a successful action in malicious prosecution have been stated and restated by the Courts. In Chiabee Bayol Vs Iorkighir Ahemba (1999) 10 NWLR (Pt 623) 381, the Supreme Court per Achike, JSC put it thus:
“… what are the ingredients to be established in order to succeed in an action for malicious prosecution? Succinctly put, the plaintiff in an action for malicious damage must plead and successfully establish in evidence –
1. That the defendant prosecuted him in the sense that he set the law in motion against him. Therefore, where the defendant merely made a report to the police but did not actively instigate the actual prosecution of the plaintiff, having left it open for the police, in it, discretion to decide whether to prosecute or not, it cannot in such circumstance be said that the plaintiff was prosecuted by the defendant …
2. Consequent to the prosecution, the plaintiff was discharged, that is to say, that the prosecution was determined in favour of the plaintiff.
3. The plaintiff must establish that the prosecution was without reasonable and probable cause. Thus, where the defendant makes a false report against the plaintiff leading to the latter’s prosecution, this is clearly evident that the defendant had no reasonable and probable cause for making the report to the police …
4. Finally, it must be established that the prosecution was activated by malice by the defendant against the plaintiff. In this regard, malice means absence of honest belief in the charge preferred against the plaintiff. This point was elucidated in the English case of Meering v Graham-White Aviation Co … in these words Honest belief seems to be the substantial thing that has always to be decided and such belief must not be merely belief by the prosecutor of the guilt of the person, but it must be a belief that the prosecutor will be able to adduce sufficient evidence before a jury or Court as would justify the Court in convicting the accused.
Failure to prove any of these ingredients means that the claim of malicious prosecution must fail – Ebenighe Vs Achi (2011) 2 NWLR (Pt 1230) 65. The inquiry now must be whether the lower Court was correct when it found that the Respondent led credible evidence to establish the four ingredients.
On the first ingredient, that the Appellant set the law in motion against him, the law is that it is not enough for the Respondent to show that the Appellant made a complaint against him to the police; he must show more than that. The general rule is that for a defendant to be liable in a claim for malicious prosecution, he must be actively instrumental in setting the law in motion for the

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prosecution of a plaintiff; and to prosecute, in this context, is to deliberately and actively initiate or instigate by way of 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. Consequently an action for malicious prosecution will not lie against a person who merely gave information to the police by way of a report or complaint of the commission of an offence, which led the police on their 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 the person suspected of stealing the missing property of the complainant and the person is subsequently arrested and charged or prosecuted by the police on their own volition – Ejikeme Vs Nwosu (2002) 3 NWLR (pt 754) 356, M.I Nigeria Ltd Vs Harry (2009) LPELR-4445(CA), Eromosele Vs Wermer (2014) LPELR-CA/B/324/2005.
InBalogun Vs Amubikahun (1989) 3 NWLR (Pt 107) 18, the Supreme Court per Belgore, JSC (as he then was) stated that “to prosecute, in essence, is to set in motion the law whereby an appeal is made to some person with judicial authority with regard to the matter in question and to be liable for malicious prosecution, a person must be actively instrumental in setting the law in motion. Merely giving information to the police is not enough …” In other words, the defendant must not only own the piper, he must also dictate the tune – Ojo Vs Lasisi (2003) 7 NWLR (Pt 819) 237, Bayam Vs Agana (2010) 9 NWLR (Pt 1199) 215.
Where, however, a defendant knowingly makes a false report of the commission of a crime to the police and on the strength of which a plaintiff is arrested and prosecuted and the defendant attends Court or procures witnesses to attend Court to testify on the false report, he cannot claim the protection of an innocent complainant and will be liable in a claim for malicious prosecution – Okonkwo Vs Ogbogu (1996) 5 NWLR (Pt 449) 420, Onyedinma Vs Nnite (1997) 3 NWLR (Pt 493) 333. The Shell Petroleum Development Company (Nig) Ltd Vs Olanrewaju (2002) 16 NWLR (Pt 792) 38, Musa Vs Yusuf(2006) 6 NWLR (Pt 977) 454, UAC of Nigeria Plc Vs Sobodu (2007) 6 NWLR (Pt 1030) 368, Agi Vs First City Monument Bank Plc (2013) LPELR-CA/C/19/2011, Umoakan Vs Ikpaisong (2016) LPELR-CA/C/53/2012. In Balogun Vs Amubikahun supra, Belgore, JSC, made the point thus:
“In Nigeria situation, once a report or complaint is made to the police and strenuously pursued as in this case, and through the same mischievous lying, the police not only make an arrest of the incriminated person, but proffer a charge against him and take him to Court for prosecution, the complainant has set in motion the law for a person clothed with authority to arrest and charge the incriminated person. The complainant, having made a false statement, maliciously, and thus causes a judicial act like the issue of arrest warrant to the prejudice of the plaintiff, will be liable for malicious prosecution.”
In his own contribution, Nnaemeka-Agu, JSC explained the point further thus:
“In my view the law appears to be now settled. If a person simply makes a report to a police officer, a ministerial officer, and the police using their discretion decide to arrest, charge and prosecute the suspect, the person making the report, if liable at all will be liable for false imprisonment on the ground that he set in motion a ministerial officer and not a judicial officer. He could only have been liable for malicious Prosecution if he set in motion the action of a judicial officer. But where the person making the report knew at the time he was making the report that the whole case was false and fabricated and that he has merely used the police to give vent to his malicious venom against the person to be charged, then, though technically he has not prosecuted that person, the law will not allow him to escape liability by saying that the police discretion interposed between the report and the prosecution. This

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makes sense….”
In the instant case, there was unchallenged evidence before the lower Court that the Respondent was initially arraigned before the Chief Magistrate Court, Jos with five people, two of whom were bailiffs of the Court of Appeal, Jos, on a First Information Report for criminal conspiracy, intimidation and criminal trespass. The charge was predicated on the complaint made by the first Appellant to the Police that the Respondent and the five other persons went to his house on the 4th of January, 2000 on the pretext of serving him Court processes and that they forced their way into his residence after having been informed that he was not at home and they assaulted, harassed and insulted his wife, the second Appellant. There was unchallenged evidence that the charge was subsequently dropped against the two bailiffs of the Court of Appeal and a fresh charge was brought against the Respondent and three other persons for the same offences and the second Appellant was listed as the complainant. There was unchallenged evidence that the first and second Appellants attended before the Chief Magistrate Court to give evidence at the trial of the Respondent on their said allegations.
The Ruling of Chief Magistrate Court, Jos discharging the Respondent on the no case submission was tendered in the lower Court as Exhibit B. The Chief Magistrate held in the Ruling that there was no iota of credible evidence led by the prosecution witnesses against the Respondent that would warrant any reasonable tribunal to convict the Respondent of the offences charged and/or for any other offence and that the prosecution of the Respondent amounted to persecution. The first to third prosecution witnesses who testified in the matter before the Magistrate were the three defence witnesses who testified for the Appellants in this matter before the lower Court.
The two court bailiffs of the Court of Appeal, who were initially charged along with the Respondent, testified at the lower Court as the first and fourth prosecution witnesses and they gave evidence that they went to the residence of the Appellants on the 4th of January, 2000 to effect service of Court processes on the first Appellant and that on getting there, they were informed by the second Appellant and a young boy, that the first Appellant was not home and had travelled to Langtang and they dropped the processes with the second Appellant and left. They testified that nobody assaulted, harassed and insulted the second Appellant in the process and were emphatic that the Respondent did not accompany them into the compound of the Appellants to carry out the service of the processes. The testimonies of the witnesses were not challenged under cross examination and they were corroborated by the evidence of the second plaintiff witnesses who asserted that he was the one that conveyed the bailiffs to the residence of the Appellants on the day in question and that it was one Barrister Akuzamos that accompanied the bailiffs to effect the service and not the Respondent. The Respondent testified as the ninth plaintiff witness and he denied ever going into the compound of the Appellants on the 4th of January, 2000. The Respondent stated that he was in the car that conveyed the bailiffs and Barrister Akuzamos to the house of the Appellants and that he did not move near the compound of the Appellants and he did not harass, insult or intimidate the second Appellant.
A read through the judgment appealed against shows that, contrary to the assertion of the Counsel to the Appellants, the lower Court considered the evidence led by both sides and that it preferred the evidence led by the Respondent to that led by the Appellants and it found that the Respondent led more credible and preponderating evidence in support of his case. It was on the basis of the evaluation of the evidence led by the parties that the lower Court found that there was no criminality committed by the Respondent at the premises of the Appellants on the day in question and it made particular reference to the evidence of the first and fourth plaintiff witnesses. It is elementary that on the issue of evaluation of evidence, the duty of the appellate Court is to ascertain whether or not there

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is evidence on which the trial Court acted and when that has been done, the appellate Court does not intervene, even if it would have handled the situation differently. There was credible evidence on record to support the holding of the lower Court and it cannot be interfered with by this Court.
What this portends is that what the Appellants alleged against the Respondent never happened and that the report they made against the Respondent to the police was, to their knowledge, false. The evidence show that it was on the basis of the false report of the Appellants that the Respondent was arrested and prosecuted in the Chief Magistrate Court and that the Appellants attended the Chief Magistrate Court to give evidence in support of the false allegation. The Appellants cannot claim the protection of an innocent complainant, in the circumstances, and they qualify as persons who were actively instrumental in setting the law in motion against the Respondent. The finding of the lower Court that the Respondent satisfied the first ingredient of malicious prosecution cannot be faulted.
On the second ingredient that the prosecution was resolved in favour of the Respondent, it is not in dispute between the parties that the charge against the Respondent was struck down by the Chief Magistrate Court on a no case submission and the Respondent was thereby discharged. Counsel to the Appellants submitted that since the Respondent was discharged on a no case submission and not after trial, it did not amount to an acquittal and cannot ground a claim of malicious prosecution. Counsel obviously overlooked two important points. It is settled law that a discharge following a no case submission is tantamount to an acquittal; a discharge on the merits – Nwadi Vs Inspector General of Police (1956) 1 ERNLR 1, Marke Vs State (1957) 2 FSC 5, Adeyemi Vs State (1991) 6 NWLR (Pt 195) 1, Mohammed Vs State (2007) 7 NWLR (Pt 1032) 152.
Secondly, when it is said that the prosecution is resolved in favour of a plaintiff, in a claim for malicious prosecution, it does not necessarily mean that the plaintiff must be discharged on the merits and it is sufficient that the plaintiff was discharged or that the Attorney General entered a nolle prosequi staying further proceedings or that the plaintiff was acquitted of the charge in question Barau Vs Chaba (1995) 1 NWLR (Pt 371), Agi Vs First City Monument Bank Plc (2013) LPELR-CA/C/19/2011, Ogbonna Vs Ogbonna (2014) LPELR-CA/K/200/2008. In the circumstances, it is beyond dispute that the prosecution in the Chief Magistrate Court was resolved in favour of the Respondent.
The lower Court was thus correct when it held that the Respondent proved the second ingredient of malicious prosecution.
As to the third requirement of probable cause, the Supreme Court in Balogun Vs Amubikahun supra stated that the requirement entails the defendant having in his possession as a reasonable and sane person, a set of facts which to an ordinary man would lead to the conclusion that the plaintiff has committed a criminal offence. The belief in the criminality of the plaintiff must be honest, based on full conviction, founded upon reasonable grounds in relation to the set of facts and circumstances which if true would lead a reasonable person to believe the plaintiff has committed an offence. The set of facts and circumstances must lead a prudent man to the conclusion that the plaintiff is probably guilty of the offence he is accused of committing. The making of a false report to the Police of facts and circumstances that never took place, as the Appellants did in the instant case, smacks of an improper purpose or motive which involved an abuse or perversion of the system of criminal justice and it negated any claim of a reasonable and probable cause for commencing the proceedings – Bayol Vs Ahemba

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supra, Ejikeme Vs Nwosu supra. The lower Court was thus on a firm ground when it held that the Respondent established the third ingredient of malicious prosecution.
On the last requirement of malice, Counsel to the Appellants submitted that the Respondent did not plead malice and that the inference of malice drawn by the lower Court from the fact of the existence ill feelings between the rival factions of the union to which the Respondent and first Appellant belonged was baseless. It is incontestable that malice is an emotive term and it is often times subtle and latent in nature and not discernible on the face of a defendant. In relation to malicious prosecution, it is usually inferred where the complaint leading to the prosecution of a plaintiff was made primarily by the defendant for purposes other than that of bringing an offender to justice he justly deserves; where it is evident that the facts and circumstances of the case cannot support a belief in the mind of a reasonable man as to the guilt of the plaintiff. It is the intentional doing of a wrongful act without legal justification – Barau Vs Chaba supra, Emonema Vs Inspector General of Police (2016) LPELR-CA/C/819/2014.
The facts of the existence of ill feelings between the rival factions of the union to which the parties belonged were pleaded by both parties and evidence led on it. When this is coupled with the fact that there was no reasonable and probable cause for the Prosecution of the Respondent, the lower Court acted within its powers when it made an inference of malice on the part of the Appellants in their prosecution of the Respondent – Okonkwo Vs Kpajie (1992) 2 NWLR (Pt 226) 633, Akpan Vs Bob (2010) 7 NWLR (Pt 1223) 421 Agi vs Access Bank Plc(2014) 9 NWLR (Pt 1411) 121, Ibrahim Vs Gwandu (2015) 5 NWLR (Pt 1451) 1. The facts and circumstances of this case support the inference of malice made by the lower Court. The finding of the lower Court that the Respondent established the fourth ingredient of the offence of malicious prosecution is thus proper.
The complaint of the Appellants on the findings made against them by the lower Court on the claim of the Respondent for malicious prosecution is baseless and misconceived.
This takes us to the claim for false imprisonment. The lower Court, after restating the law on false imprisonment, continued in the judgment thus:
“From the evidence in this case as adduced by both sides, it is not disputed that it was the first defendant that made a report to the police against the plaintiff and others alleging trespass to the 1st defendant’s premises and intimidation of the 2nd defendant. That based on this report to the police, the plaintiff and others were later arrested by the police and detained for 6 hours at the Area Commander’s Officer here in Jos before they were granted bail.
From the oral and documentary evidence led by the plaintiff, particularly that of the PW1 and PW4, who are officials of the Jos Division of the Court of Appeal, the plaintiff and those other persons had merely been to the premises of the defendants to serve Court Process on the 1st defendant and that while the PW1 and PW4 were the officials to serve the process, the plaintiff and other persons who are not Court officials merely followed to act as pointers, no more no less. I believe the evidence as adduced by the plaintiff, particularly that of the PW1 and PW4 … who testified to corroborate the evidence led by the plaintiff and other witnesses on the issue. … I am satisfied also that the arrest and detention of the plaintiff in the circumstances of this case was based on the report of the defendants which from the evidence adduced by the plaintiff is based on false, frivolous report and therefore actuated by malice. I am therefore satisfied that the arrest and detention of the plaintiff, based on such a baseless and malicious report of the defendants amounts to false imprisonment. The plaintiff has therefore established on the preponderance of evidence the case of false imprisonment against the defendants.”
Now, false imprisonment is complete deprivation of liberty for anytime however short without lawful

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cause. Imprisonment is no other thing but the restraint of a man’s liberty whether it be in the open field, or in the stocks or in the case in the street, or in a mans own house, as well as in the common jail; and in all places the party so restrained is said to be a prisoner so long as he hath not his liberty freely to go at all times to all places wither he will without bail or otherwise. The prisoner may be confined within a definite space by being put under lock and key or his movements may simply be constrained by the will of another – Arab Contractors (O.A.O.) Nigeria Ltd Vs Umanah (2013) 4 NWLR (Pt 1344) 323, Afrilec Ltd vs Lee (2013) 6 NWLR (Pt 1349) 1.
The position of the law is that an action for false imprisonment will not lie against a private individual who merely gave information which led the police on their initiative to arrest a suspect and this is because every private individual has the right to report a crime or a suspected crime to the police – Isheno Vs Julius Berger (Nig) Plc(2008) 6 NWLR (Pt 1084) 582, Arab Contractors (O.A.O.) Nigeria Ltd Vs Umanah supra. To succeed in an action for false imprisonment, a plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against him. In other words, the plaintiff must show that the defendant did not only lodge a complaint against him to the Police, but also that he was actively instrumental to his arrest and detention – Okonkwo Vs Ogbogu (1996) 5 NWLR (Pt 449) 42}, Ejefor Vs Okeke (2000) 7 NWLR (Pt 665) 363, Macleans Vs Jennings (2003) 3 NWLR (Pt 808) 470, Arab Contractors (O.A.O.) Nigeria Ltd Vs Umanah supra, First Bank of Nigeria Plc & Ors Vs Attorney General of Federation & Ors (2013) LPELR- 20152(CA).
It is evident from the findings made above on the claim for malicious prosecution that the conclusions reached by the lower Court in the judgment that the arrest and detention of the Respondent by the Police was due to the false and malicious report made by the Appellants and that the report was actuated by malice cannot be faulted by this Court. The findings of the lower Court that the Respondent made out a credible case of false imprisonment is thus correct and the complaints of the Appellants have no leg to stand on.
Counsel to the Appellants also raised the issue of non-joinder of the Nigerian Police as parties by the Respondent and submitted that it was fatal to the case of the Respondent as it meant that the liability of the Appellants could not be completely and effectually determined. Counsel, however, failed to explain what he meant by the liability of the Appellants not being completely and effectually determined and to show how the non-joinder of the Police prevented the lower Court from completely and effectually determining the liability of the Appellants. It is settled by a long line of case law authorities that it is the claim of a plaintiff that determines whether a party is a necessary party in a matter and the claim and allegation of facts therein must be such that there are questions in controversy which cannot be effectually and completely settled or answered if he is not made a party – Uku Vs Okumagba (1974) 3 SC 35, Green Vs Green (1987) 3 NWLR (Pt 61) 480, Azubuike Vs Peoples Democratic Party (2014) 7 NWLR (Pt 1406) 292. The Respondent made no claim against the Nigerian Police and all his allegations in his pleadings were directed against the Appellants. There was no question in the case that required the presence of the Nigerian Police as a party in the suit. There was thus no basis for the Nigeria Police being made a party.
Moreover, it is settled law that no cause or matter shall be defeated by reason of mis-joinder or non-joinder of parties and the Court may in every cause or matter deal with the issues in controversy so far as regards the rights and interest of the parties actually before it – Kalu Vs Odili – in re Chief Nwoja (1992) SCNJ (Pt 1) 76 at 115, Osunrinde Vs

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Ajamogun (1992) 6 NWLR (Pt 246) 154 at 183-184, Bello Vs Independent National Electoral Commission (2010) 8 NWLR (Pt 1196) 342, Sapo Vs Sunmonu (2010) 11 NWLR (Pt 1205) 374, Attorney General of Rivers State Vs Attorney General of Akwa-Ibom State (2011) 29 WRN 1 at 30, Azuh Vs Union Bank of Nigeria Plc (2014) 11 NWLR (pt 1419) 580. The submission of Counsel to the Appellants on the fatal effect of the non-joinder of the Nigerian Police on the case of the Respondent is totally misconceived.
The Appellants also berated the lower Court for dismissing their counterclaim. In dismissing the counterclaim, the lower Court, after reproducing the respective cases of the parties on the pleadings, stated in the judgment thus:
“The evidence as adduced by the plaintiff/defendant to the counterclaim shows clearly that the plaintiff was there merely to serve as a pointer to the Court of Appeal officials who went there to serve some Court processes. This is clearly shown in the evidence of PW1 and PW4 who are the officials of the Court of Appeal Jos Division. While no doubt the counterclaimant have established possession of their premises, the entry of the plaintiff/defendant on the premises in the circumstances of this case in my view cannot amount to trespass. There is no evidence that the plaintiff intimidated any one. The evidence adduced even by the counterclaimant, particularly DW3, shows that it was one Barrister Akuzamos Anakwe who called the second counterclaimant prostitute and not the plaintiff. The said Barrister Akuzamos Anakwe is not a party to these proceedings. The defendants/counterclaimants have failed also to establish a case of intimidation against the plaintiff/defendant. . . .
On the whole, I find that the counterclaim has not been proved against the plaintiff/defendant by the counterclaimants. I find that the counterclaim is baseless and not filed in good faith.”
It is obvious that these findings of the lower Court were arrived at after an evaluation of the evidence led by the parties on the counterclaim. It is not the case of the Appellants that these findings cannot be supported from the evidence led by the parties or that they ran counter to the pleadings and the evidence of the parties and/or that the lower Court took into consideration extraneous facts or closed its eyes to credible evidence. Counsel to the Appellants did not show any dereliction of duty committed by the lower Court in its evaluation of the evidence of the parties. This Court thus has no business interfering with the findings and conclusion reached by the lower Court on the counterclaim of the Appellants.
Counsel to the Appellants again picked a grouse with the judgment of the lower Court on the ground that the lower Court misstated the date of the amended statement of claim of the Respondent. It was not the case of the Appellants that the facts of the pleadings relied on and the reliefs considered by the lower Court were different from those of the extant pleadings used for the trial and relied on by the parties. Neither was it their case that they were misled in anyway by the error of the lower Court in misstating the date of the amended statement of claim. It is settled law that it is not every error committed by a lower Court that would result in its decision being set aside on appeal. For an error to be worthy of having that effect, it must be relevant to the issues in contention between the parties and be substantial as to lead to a miscarriage of justice – First Bank of Nigeria Plc Vs Ozokwere (2014) 3 NWLR (Pt 1395) 439, Azabada Vs State (2014) 12 NWLR (Pt 1420) 40.
A miscarriage of justice refers to a grossly unfair outcome in judicial proceedings; a departure from the rules which permeate all judicial procedure as to make that which happened not, in the proper sense of the word, judicial procedure at all – Nnajiofor Vs Ukonu (1986) 4 NWLR (Pt 36) 505

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and Adeyemi Vs State (2014) 13 NWLR (Pt 1423) 132. The Appellants’ did not show any miscarriage of injustice they suffered by reason of the error of the lower Court.
Counsel to the Appellants submitted further that the lower Court violated the principle against double compensation by granting general damages in addition to special damages in favour of the Respondent. Double compensation is said to arise where a party receives compensation twice on one item of damage or on a single species of damages. In other words, where a party has been fully compensated under one head of damages for a particular injury, he cannot be awarded in respect of the same injury under another head – Artra Industries Nigeria Ltd Vs The Nigerian Bank for Commerce and Industries (1998) 4 NWLR (Pt 546) 357, Tsokwa Motors (Nig) Ltd Vs United Bank for Africa Plc (2008) All FWLR (Pt 403) 1240. Where a party is awarded damages twice under two different heads for two distinct and proven injuries, it does not amount to double compensation – Ezeani Vs Ejidike (1964) All NLR 402, Eliochin (Nig) Ltd Vs Mbadiwe (1986) 1 NWLR (Pt 14) 47, Universal Trust Bank (Nig) Ltd vs Ajagbule (2006) 2 NWLR (Pt 965) 447, Shell Petroleum Development Corp Vs Okonedo (2007) All FWLR (Pt 368) 1104.
There is nothing precluding the award of general damages, in addition to special damages, so long as it is claimed for and there is evidence led to support its award – Ozigbu Engineering Co Ltd Vs Iwuamadi (2009) 16 NWLR (Pt 1166) 44. The Respondent claimed for special damages and general damages separately and he pleaded different set of facts in support of the two heads of claim and led evidence thereon. The awards of special and general damages made by the lower Court cannot thus amount to double compensation in the circumstances of this case.
Counsel to the Appellants also seemed to suggest that the lower Court was in error in granting N30,000.00 as special damages and a total sum of N350,000.00 as general damages when the claims of the Respondent were for N809,000.00 as special damages and N4 Million as general damages and that there was no correlation between the sums claimed and the sums awarded. This contention of the Counsel to the Appellants shows that he is unaware of the principle that says that a Court of law can award less the sum claimed as damages – Badmus Vs Abegunde (1999) 11 NWLR (Pt 627) 493 and Emirates Airline Vs Ngonadi (No 2) (2014) 9 NWLR (Pt 1413) 429. The lower Court thus acted within its powers to award less than the sums claimed as special and general damages and the awards cannot be faulted on that ground.
It was the further contention of the Counsel to the Appellants that the lower Court was in error in granting the Respondent the sum of his Solicitor’s fees in the sum of N30,000.00 as special damages because such a claim cannot be passed to the Appellants and he relied on the case of Guinness Nigeria Plc Vs Nwoke (2000) 15 NWLR (Pt 689) 135. With respect to Counsel, he only stated a part of the law on claim for solicitor’s fees. The law is that a claim by a claimant for legal fees he paid to his Solicitor is not one that is ordinarily granted by a Court – Ihekwoaba Vs African Continental Bank Ltd (1998) 10 NWLR (Pt 571) 590 at 610-611, Nwanji Vs Coastal Services (Nig) Ltd (2004) 11 NWLR (Pt 885) 552. It is correct that in Guinness (Nig) Plc Vs Nwoke (2000) 15 NWLR (Pt 689) 135 it was suggested that such a claim was unknown to our law. The correct position of the law, however, is that solicitor’s fees is claimable, and to succeed on such a claim it must be specifically pleaded as special damages and must be proved by credible and cogent evidence – Balogun Vs Amubikahun (1985) LPELR-FCA/I/129/82, Divine Ideas Ltd Vs Umoru (2007) All FWLR (Pt 380) 1468, Shell Petroleum Development Company Nigeria Ltd Vs Okonedo (2008) 9 NWLR (Pt 1091) 85, Intercontinental Bank Ltd Vs Brifina Ltd (2012) 13 NWLR (Pt 1316) 1, Obasanjo Farms (Nig) Ltd Vs Muhammad (2016) LPELR-40199(CA). The Respondent claimed the solicitor’s fees as special damages and he led evidence in support thereof. The lower Court was correct

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in awarding him the sum.
In conclusion, this Court resolves all the issues raised and canvassed in this appeal in favour of the Respondent and finds that this appeal is lacking in merit. The appeal is hereby dismissed. The judgment of the High Court of Plateau State in Suit No PLD/J1/2004 delivered by Honorable Justice Y. G. Dakwak on the 30th of September 2015 is affirmed. The Respondent is awarded the cost of this appeal assessed at N50,000.00. These shall be the orders of this Court.
ADAMU JAURO, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU, JCA. I agree with the lucid reasons therein advanced to arrive at the conclusion that the appeal lacks merit and should be dismissed.
I adopt the said judgment as mine in dismissing the appeal.
I endorse the order, relating to costs in the lead judgment.
UCHECHUKWU ONYEMENAM, J.C.A.: I have had the preview of the lead judgment just read by my learned brother HABEEB ADEWALE O. ABIRU, JCA and I am in agreement with his reasonings and conclusion in dismissing the appeal for lacking in merit. I too hereby dismiss the appeal for same reasons and also affirm the judgment of the High Court of Plateau State in Suit No. PLD/J1/2004 delivered by Honourable Justice Y,G. Dakwak on 30th September, 2015.
I abide by the orders as to costs.