Mallam Yakubu M. J. v. Oladele Ogboni - FCT High Court Word - Mallam Yakubu M...1 in the high court...
Transcript of Mallam Yakubu M. J. v. Oladele Ogboni - FCT High Court Word - Mallam Yakubu M...1 in the high court...
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IN THE HIGH COURT OF THE FEDERAL
CAPITAL TERRITORY, ABUJA
HOLDEN AT ABUJA
ON THURSDAY, 14TH DAY OF JUNE, 2012
BEFORE HON. JUSTICE SYLVANUS C. ORIJI
SUIT NO. FCT/HC/CV/28/2006
BETWEEN
MALLAM YAKUBU M. J. --- PLAINTIFF
AND
OLADELE OGBONI --- DEFENDANT
JUDGMENT
The plaintiff, a legal practitioner, commenced this suit by writ of summons
filed on 4/12/2006. In paragraph 44 of his amended statement of claim filed
on 4/5/2009, the plaintiff claims these reliefs against the defendant:
1. A declaration that the defendant assaulted and or coursed (sic:
caused) the plaintiff to be assaulted; beat up and or coursed (sic:
caused) the plaintiff to be beaten up.
2. A declaration that the assault and (sic: by the) defendant is in utter
disregard for the respect and dignity of the person of the plaintiff.
3. A declaration that the defendant subjected the plaintiff to inhuman
torture and degrading treatment and servitude.
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4. A declaration that the defendant unlawfully restrained the plaintiff
and impugned on his right to move freely.
5. A declaration that the alterations (sic: utterances) and statement of the
defendant at the scene of the incident are defamatory of the character
and reputation of the plaintiff.
6. An order of this Court compelling the defendant to pay
N5,000,000.00 to the plaintiff being damages for malicious and
unlawful prosecution of the plaintiff without just cause.
7. The sum of N5,000,000.00 being damages for unlawful restraint,
criminal trespass, criminal assault, unlawful detention of plaintiff’s
car, unlawful arrest and detention of the plaintiff.
8. N500,000.00 being special and general damages.
The defendant filed an amended statement of defence and counter claim
on 18/5/2009. In his counter claim, the defendant seeks the following reliefs
against the plaintiff:
1. The sum of N450,000.00 being the price of the damage(d) Nissan car
No. CB 34 ABC.
2. The sum of N720,000.00 being the cost of hiring taxi car between Dec.
2005 and Dec. 2006 at N60,000.00 monthly.
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3. The sum of N10,000,000.00 as general damages.
4. The sum of N12,500.00 being balance on the concrete rings.
On 20/3/2007, the plaintiff filed a reply to the statement of defence and
defence to the counter claim. Trial commenced on 28/7/2008. The plaintiff
adopted his 22-paragraph statement on oath filed on 20/3/2007; his
amended statement on oath of 36 paragraphs filed on 30/10/2007; and his
amended statement on oath of 48 paragraphs filed on 4/5/2009. He
tendered the certified true copy of judgment in Appeal No. CRA/34/2006 as
Exhibit A; and the certified true copy of the record of proceedings in Charge
No. CV/106/2005 as Exhibit B. The plaintiff was cross examined. For his
part, the defendant adopted his statement on oath filed on 18/5/2009 and
tendered 12 receipts as Exhibits C & D1-D11. After the evidence-in-chief of
the defendant, the case was adjourned several times for the plaintiff to
cross examine him. The plaintiff did not attend Court to cross examine the
defendant in spite of the hearing notices served on him as shown by the
records in the case file. On the application of the defence counsel on
25/5/2011, I foreclosed the right of the plaintiff to cross examine the
defendant.
At the conclusion of trial, the parties filed and adopted their respective
final addresses. The defendant’s final address was filed by C. C. Nnamani
Esq. (of blessed memory) on 12/8/2011. The plaintiff filed his final address
on 15/2/2012. D. A. Sulayman Esq. filed the defendant’s reply on points of
law on 24/4/2012.
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The defence counsel did not formulate any issue for determination. For his
part, the plaintiff posed three issues for the Court’s determination, namely:
1. Whether on the preponderance of evidence the plaintiff is not
entitled to judgment on all his claims.
2. Whether the discharge and acquittal of the plaintiff in the appellate
court does not grand (ground) damages claimed by the plaintiff.
3. Whether the counter claim of the defendant is not superfluous and
overreaching in the light of the acquittal and discharge of the
plaintiff by the FCT High Court sitting in its appellate jurisdiction.
However, in my opinion, there are two main issues for determination. The
first is whether the plaintiff is entitled to his claims while the second is
whether the defendant is entitled to his counter claims.
ISSUE 1
Whether the plaintiff is entitled to his claims.
The 1st, 2nd, 3rd & 4th reliefs of the plaintiff are based on the allegation that
the defendant assaulted and beat him and/or caused him to be assaulted or
beaten up in utter disregard for the respect and dignity of his person; that
the defendant subjected him to inhuman torture, degrading treatment and
servitude; and that the defendant unlawfully restrained him and
impugned on his right to move freely. In the 7th relief, the plaintiff claims
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N5,000,000.00 damages for unlawful restraint; criminal trespass; criminal
assault; unlawful detention of his car; and his unlawful arrest and
detention.
The case of the plaintiff is that on 9/12/2005, he went to collect money from
his friend’s boy in Urban Mass park, Gwagwalada, Abuja. He sat outside
the shop where the boy was barbing. The defendant met him and shouted
that he (plaintiff) should pay him (defendant) his money. He replied that
he was not indebted to him. The defendant got enraged, held his shirt and
cut one of the buttons. While holding his shirt, the defendant shouted
saying: ‘you are a debtor, you thief, you must pay me my debt or else I will kill
you today’; and ‘you think I am Agwuma and Area Commander that you are
dealing with, today I will show you who I am.’ Due to the action of the
defendant, a great crowd gathered. The on-lookers managed to disengage
the defendant’s hand from his shirt. After about 30 minutes, he went back
to the said shop and parked his car facing the shop; the distance between
his car and the shop was about 2 inches. The defendant returned there in
the company of 3 hefty men and parked his white car behind his (plaintiff)
car leaving a distance of about 3 inches.
While with the 3 men, the defendant shouted: ‘Talk again thief, say you will
not pay me my money and I will kill you and nothing will happen’; ‘You think you
can run to police station I have block your car, where are you going to go now’;
and ‘I will deal with you if you don’t pay my money.’ Passers-by were
attracted, and they joined his (plaintiff) friend to hold the defendant and
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his thugs, while he hurried into his car with great fear. The defendant and
his thugs escaped from the passers-by. The defendant held his neck while
he was inside the car and said ‘Where do you think you are going, you think
you can go when I have blocked your car, you can’t run away, come out and fight.’
He was afraid; he wound up his car doors and locked himself in. The
defendant and his thugs hit the door glass of his car several times with
intent to break in but he managed to drive out his car to Gwagwalada
Police station.
On the other hand, the case of the defendant is that when he saw the
plaintiff on 9/12/2005, he approached him friendly to pay his debt, which
he had evaded to pay. The plaintiff flared up, beat his chest, began to curse
and abuse him, and advanced to rough-handle him. There was no time he
touched the plaintiff. People gathered as a result of the plaintiff’s ranting;
he shouted ‘you dare to challenge me? Don’t you know that I am a lawyer? I can
kill you here and nothing will happen.’ The people who gathered tried to
control the plaintiff, but he removed their hands, rushed into his car
parked in front of his, put it in reverse gear and hit his (defendant) car 5
times. Consequently, his car was damaged by the plaintiff. He left his car at
the scene and ran for his life. He explained that his car was parked far
away from the plaintiff’s car. The plaintiff’s car had enough space all
around it; it was through the front space that the plaintiff drove off after
hitting his car. He denied that he went to the scene with 3 hefty men.
The defence counsel pointed out that apart from the evidence of the
plaintiff, no other witness was called to corroborate his story. He argued
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that though a case cannot be proved by merely calling many witnesses, the
evidence of one witness lacking in credibility and probative value must be
disregarded. He submitted that looking at the totality of the plaintiff’s
evidence, no case of assault, inhuman treatment or restraint was
established against the defendant. He concluded that the plaintiff is not
entitled to his claims. On the other hand, the plaintiff did not canvass any
argument on his 1st, 2nd, 3rd, 4th & 7th reliefs apart from his remark that ‘the
defendant was in clear breach of the fundamental right of the plaintiff culminating
in the discharge and acquittal of the plaintiff by the FCT High Court sitting in its
appellate jurisdiction.’ However, in his conclusion, he urged the Court to
grant his claims with substantial cost.
Now, from the pleadings and evidence of the parties, the defendant joined
issues on the facts alleged by the plaintiff in support of the claims under
focus. The defendant averred that the plaintiff was the one that cursed,
abused, and advanced to rough-handle him on the day in question and
damaged his car. It is trite that civil cases are decided on preponderance of
evidence or balance of probabilities. See the case of Alhaji Uba Usman v.
Salisu Abubakar (2001) 12 NWLR (pt. 728) 685. By section 131(1) of the
Evidence Act, 2011, whoever desires any court to give judgment as to any
legal right or liability dependent on the existence of facts which he asserts
must prove that those facts exist. I need to also refer to section 135(1)
thereof which provides that if the commission of a crime by a party to any
proceeding is directly in issue in any proceeding civil or criminal, it must
be proved beyond reasonable doubt. See Michael Arowolo v. Chief Titus
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Ifabiyi (2002) 4 NWLR (pt. 757) 356. In the instant case, there can be no
doubt that the plaintiff has the burden to prove the allegations upon which
his claims are predicated.
What has emerged from the evidence of the parties is that there was a
quarrel between the plaintiff and the defendant on 9/12/2005. What is not
certain is who the aggressor was. Perhaps the evidence of other witnesses
would have been helpful to the Court to reach a finding on who the
aggressor was. Apart from the several people or passers-by who witnessed
the event, the plaintiff stated during cross examination that Mohammed
and Joe were among the people that were at the scene. From the record of
proceedings, Exhibit B, Mohammed Salami and Emeka Joekan testified as
witnesses for the plaintiff (as accused person in the criminal trial in the
magistrate court). The plaintiff did not call any of these persons to testify.
Has the plaintiff proved the allegation of servitude, torture and restraint?
Servitude is the state of being a slave; or subjection to irksome or taxing
conditions, while torture is the infliction of severe pain or mental suffering.
See pages 1282 & 1484 of the Chambers 21st Century Dictionary respectively.
The plaintiff alleged that the ‘thugs’ that accompanied the defendant to the
scene were Ishola, the defendant’s son and two others. The plaintiff did not
allege that the defendant or the ‘thugs’ beat or tortured him or subjected
him to irksome or taxing conditions. The point must be made that the
allegations of torture and assault are allegations of crime, which, as I said
earlier, require proof beyond reasonable doubt.
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Let me also comment on the plaintiff’s evidence that the distance between
his car and the shop where he parked it was about 2 inches; and that the
defendant parked his car behind his (plaintiff) car leaving a distance of
about 3 inches. This evidence is in support of his claim that the defendant
unlawfully restrained him and violated his right to move freely. If my
understanding of an inch as one-twelfth of a foot is correct, and I think it is,
it is not probable or likely that the plaintiff drove out his car from the scene
in a space of five (5) inches.
I am mindful of the judgment of my noble lords, T. N. Orji-Abadua, J. (now
Justice of the Court of Appeal) and M. E. Anenih, J. delivered on 20/10/2006,
Exhibit A. In that judgment, the conviction and sentence of the plaintiff (as
accused person in the magistrate court) for the offence of mischief was set
aside. Their lordships held, inter alia:
“We believe that if the circumstances of the case were properly
evaluated by the trial court, it would have found out that the defence
of self defence would have availed the Appellant who felt he was
being attacked by the complainant and his men.”
In my respectful view, the said judgment did not relieve the plaintiff of the
evidential burden to prove his claims in this proceeding. It is pertinent to
note that their lordships did not find that the plaintiff was attacked by the
complainant and his men. For the avoidance of doubt, I need to remark
that the complainant in that case is the defendant in the present proceeding
while the appellant is the plaintiff. Their lordships found that the plaintiff
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‘felt he was being attacked by the complainant and his men.’ In the absence of
any credible evidence to support the ipse dixit of the plaintiff, my decision
is that he has not discharged the evidential burden to prove these claims.
Therefore, the 1st, 2nd, 3rd, 4th & 7th reliefs of the plaintiff are dismissed.
In the 5th relief, the plaintiff seeks a declaration that the utterances and
statements made by the defendant at the scene of the incident are
defamatory of his character and reputation. In relief 8, he claims the sum of
N500,000,00 as special and general damages. Perhaps, this sum represents
damages for the alleged defamation. I had earlier set out the statements
allegedly made by the defendant on 9/12/2005 concerning the person of the
plaintiff including that he is a thief and debtor. The defendant denied
making these statements. The learned defence counsel submitted that from
the totality of the plaintiff’s evidence, no case of defamation was
established against the defendant. On the other hand, the plaintiff did not
canvass any argument on the tort of defamation and why this claim should
succeed apart from his remark that he had not been convicted of theft or
adjudged a debtor to justify the publication by the defendant.
A defamatory statement is one which has the tendency to injure the
reputation of the person to whom it refers, and tends to lower him in the
estimation of right thinking members of the society. See National Electric
Power Authority v. Chief Etim Inameti (2002) 11 NWLR (pt. 778) 397 and
Alawiye v. Ogunsanya (2004) 4 NWLR (pt. 864) 486. A defamatory
statement may be in writing or by spoken words. The former is libel while
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the latter is slander. To succeed in an action for defamation, there must be
evidence that the words complained of convey a defamatory meaning; and
that the words were defamatory of the plaintiff in that they lowered him in
the estimation of right thinking members of the society, or exposed him to
hatred, ridicule or contempt, or injured his reputation or financial credit.
Therefore, it is the effect the words have on persons to whom the
statements or words were published (i.e. those who heard or read them)
that constitutes defamation. There must be evidence of a third party to
prove the effect of the publication of the alleged defamatory statement on
him i.e. the reaction of a third party to the defamatory statement
complained of. This is because a person’s reputation is not based on the
good opinion he has of himself, but the estimation in which others hold
him. In Bank of the North Ltd. v. Alhaji A. A. Adehi (2003) FWLR (pt.
137) 1135, it was held that in a case of defamation of character, the plaintiff
must call witnesses to testify as to what they think and feel about him since
the publication of the alleged defamatory matter. See also Lambert Sunday
Iwueke v. Imo Broadcasting Corporation (2005) 17 NWLR (pt. 955) 447.
In the instant case, the plaintiff failed to call any other witness to give
evidence that the defendant made the statements complained of. Even if I
believe the plaintiff’s evidence that the defendant said these words, the
failure of the plaintiff to call any other witness is fatal to his claim for
defamation. There is therefore no evidence that the alleged statements
lowered the plaintiff in the estimation of right thinking members of the
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society, or exposed him to hatred, ridicule or contempt, or injured his
reputation or financial credit. In other words, there is no evidence of
anyone of what he or she thinks or feels about the plaintiff since the
publication of the alleged defamatory matter. In the circumstance, the 5th &
8th reliefs are also dismissed.
The 6th relief is the sum of N5,000,000.00 as damages for malicious and
unlawful prosecution of the plaintiff. In his evidence, the plaintiff narrated
how the defendant ‘procured the services of the Area Command Police
Gwagwalada’ and how he was arrested from the Divisional Police station
Gwagwalada by InspectorYahaya Ogih from the Area Command Police
Gwagwalada. At the Area Command, the defendant told the IPO and other
Police men present to take him to court so that he will be tried, de-robed
and barred from practice of law. He was charged to magistrate court,
Gwagwalada on the allegation of mischief. He further stated that from the
day of his arrest, the defendant engaged the services of a lawyer for his
prosecution, he conveyed the prosecutor and his witnesses to court and
procured his child, a neighbour and 2 workers to give evidence in court.
The Police never made any investigation but merely arraigned him on the
instruction of the defendant. He stated that the prosecution was actuated
by malice by the defendant against him.
The evidence of the defendant, on the other hand, is that he reported the
plaintiff to the Area Command for damaging his car in December 2005. He
did not instruct the Police to arrest the plaintiff. The Police impounded his
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car and that of the plaintiff; the Police arraigned the plaintiff after
investigation and tendered the cars as exhibits. He has no power to instruct
the Police to prosecute the plaintiff or to detain his car. He engaged a
lawyer to watch brief for him while the Police prosecuted the matter. The
witnesses who testified in the magistrate court were invited by the Police
and went to court on their own. He said the prosecution of the plaintiff
was reasonable and was without malice or prejudice.
The plaintiff referred to several cases including Ojo v. Okitipupa Oil Palm
Plc. (2001) FWLR (pt. 70) 1468 and Bornu State Government v. Ashieik
(2007) ALL FWLR (pt. 357) 1007 for the ingredients of the tort of malicious
prosecution. His submission, in a nutshell, is that his evidence is adequate
proof of malicious prosecution. In his reply on points of law, the defence
counsel referred to the cases of UAC (Nig.) Plc. v. Sobodu (2007) 48 WRN
34 and Ojo v. Lasisi (2003) 28 WRN 31 on the tort of malicious prosecution
and submitted that the plaintiff did not satisfy the prerequisites of the law
on proof of malicious prosecution.
Now, in Bayol v. Ahemba (1999) 10 NWLR (pt. 623) 381, the Supreme
Court held that to succeed in an action for malicious prosecution, the
plaintiff must plead and establish by 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 its
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discretion to decide whether to prosecute or not, it cannot be said
that the plaintiff was prosecuted by the defendant.
2. That consequent upon the prosecution the plaintiff was discharged,
that is to say that the prosecution was determined in his favour.
3. 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 evidence that the defendant
had no reasonable and probable cause for making the report to the
Police.
4. That the prosecution was actuated by malice by the defendant
against the plaintiff. In this regard, malice means absence of honest
belief in the charge preferred against the plaintiff.
See also Ojo v. Okitipupa Oil Palm Plc. (supra); (2001) 9 NWLR (pt. 719)
679. On proof that the defendant set the law in motion against the plaintiff
leading to the criminal charge, the Court of Appeal in Chief S. S. Ejikeme
v. Basil Nwosu (2002) 3 NWLR (pt. 754) 356 held that it must be shown by
evidence that the defendant knew very well that the whole criminal
complaint was a fabrication and that the arrest and subsequent trial of the
plaintiff was an unmitigated abuse of judicial process. In the instant case,
there is no proof that the report of the defendant to the Police that the
plaintiff damaged his car was a fabrication. In his evidence, the plaintiff
admitted that he hit the defendant’s car 3 times. During cross examination,
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the plaintiff was asked if he had any evidence to show that the defendant
procured the Area Commander to arrest him apart from the normal
lodging of a complaint. In his answer, the plaintiff said the defendant, who
was his friend and knew of the problem he had with the Area Commander,
took advantage of his problem with the Area Commander to lodge the
report.
In my view, this evidence is not sufficient proof that the defendant did
more than reporting the case to the Police. I have also considered the
evidence of the plaintiff that the defendant conveyed the prosecutor and
his witnesses to court; and procured his child, a neighbour and 2 workers
to give evidence in court. The defendant denied these allegations. Even if I
accept these pieces of evidence, it is my humble view that they are not
sufficient proof that the defendant set the law in motion against the
plaintiff in so far as the complaint was not fabricated. I believe the
defendant that he does not have the power to instruct the Police to arrest or
prosecute the plaintiff. In Ojo v. Okitipupa Oil Palm Plc. (supra), it was
held that in an action for malicious prosecution, it must be borne in mind
that the decision to arrest is taken by the Police and not the complainant.
Similarly, the decision to prosecute is taken either by the Police or by the
Attorney General in the Ministry of Justice. I hold the considered opinion
that the plaintiff has not proved that the defendant set the law in motion.
The next ingredient is proof that the prosecution by the defendant was
completely without reasonable cause. In the case of Chief S. S. Ejikeme v.
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Basil Nwosu (supra), it was further held that a reasonable and probable
cause entails the defendant having in his possession 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 criminal culpability of the
plaintiff must be honest. There may be reasonable ground in some cases
which may not necessarily lead to conviction, in which case there is
probable and reasonable cause as to vitiate proceedings for malicious
prosecution. In this case, I hold that there was reasonable and probable
cause for the complaint of the defendant that led to the prosecution of the
plaintiff. If I may be prolix for emphasis, the plaintiff admitted hitting the
defendant’s car thrice on that day. It is correct that the plaintiff’s conviction
by the magistrate court was set aside on appeal, but his acquittal does not
mean that there was no reasonable or probable cause for the trial.
On proof that the prosecution was as a result of malice by the defendant
against the plaintiff, it was further held in Chief S. S. Ejikeme v. Basil
Nwosu (supra) that to be liable for malicious prosecution, the defendant
would have done more than merely reporting the incident to the Police,
such as if after the completion of investigation, he was told by the Police
that there was no case and he insisted that the Police must charge the
plaintiff to court; or if the facts contained in the defendant’s statement to
the Police are false to his knowledge; or if the defendant misled the Police
by presenting suborned witnesses to support his allegation; or if the
defendant influenced the Police to assist him in sending the plaintiff to
trial. None of these situations exists in the instant case. I hold that there is
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no shred of evidence to prove that the prosecution of the plaintiff was
actuated by malice by the defendant. From all I have said on this subject,
the conclusion I must reach is that the plaintiff has not proved the
ingredients of malicious prosecution. Having found that none of the claims
has been proved, the plaintiff’s suit is dismissed.
ISSUE 2
Whether the defendant is entitled to his counter claims.
The first claim of the defendant is N450,000.00 being the price of his
damaged Nissan car. In paragraph 27 of the counter claim, the defendant
averred that his Nissan Sunny car with registration number CB 34 ABC
damaged by the plaintiff became a write-off and has since been parked at
the magistrate court premises, Gwagwalada as exhibit. The defendant
pleaded photographic pictures, negatives, VIO report, etc. On the other
hand, in paragraph 2 of the defence to the counter claim, the plaintiff
averred that he never damaged the defendant’s car and that the defendant
parked his car at the magistrate court premises on his own volition. The
evidence of the defendant in paragraph 9(ii) of his statement on oath is that
as a result of the hitting of his car by the plaintiff, the car got damaged
especially the driver’s door side. In paragraph 18 of his statement on oath
filed on 20/3/2007, the plaintiff stated that he never damaged the
defendant’s car. During cross examination, the plaintiff admitted that he
hit the car of the defendant 3 times to escape from the thugs but said he did
not know if the defendant’s car was damaged as a result of the hitting.
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The defence counsel argued that the defendant testified in support of his
assertion that his car was damaged to a point of write-off, and he tendered
the purchase receipt. On the other hand, the standpoint of the plaintiff is
that where an accused person was tried by a court of competent
jurisdiction and acquitted on a criminal allegation, the nominal
complainant cannot sustain a civil action against the accused. Any claim
premised on the charge is bound to fail. He submitted that the counter
claim is a matter put on nothing and ought to fail. He cited the case of
SPDC v. Olarenwaju (2003) FWLR (pt. 140) 1644 to support his view that
if specified allegation of crime in the pleadings is made the foundation of a
claim or action or defence, it must be proved beyond reasonable doubt.
Now, has the defendant proved by credible evidence that the plaintiff
damaged his car and that the car was a write-off? The plaintiff is right that
this claim is based on an allegation of crime which must be proved beyond
reasonable doubt. The defendant pleaded photographic pictures, negatives
and VIO report in proof of the allegation that his car was damaged. None
of these was tendered at the trial. As it stands, there is no evidence to
prove that the car was damaged. Even if I believe the defendant’s evidence
that the plaintiff damaged the driver’s door of his car, this, in my opinion,
will not justify the claim for N450,000.00 being the price of the car. At best,
it could support a claim for damages for the repair of the car. The other
pertinent point is that the trial of the plaintiff at the magistrate court was
based on the same allegation upon which this claim is hinged. As shown in
Exhibits A & B, the plaintiff was charged as follows:
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“That on the 9th December 2005, at the Urban Mass Park,
Gwagwalada, Abuja, You intentionally used your vehicle with
Registration No. DX 783 ABC in a reverse mode to hit the vehicle of
one Ogboni Oladele and caused damages to his vehicle thereby
committed an offence of mischief ...”
The conviction of the plaintiff by the trial court was set aside on appeal. I
agree with the plaintiff that having been tried and acquitted on the said
charge, the defendant cannot sustain a civil action against him; any claim
premised on the charge is bound to fail. This claim is dismissed.
On the claim for N720,000.00 being the cost of hiring taxi car between
December 2005 and December 2006, I adopt my views above. I hold that
there is no credible evidence that the car was damaged and the claim
cannot stand in the light of the acquittal of the plaintiff. I need to add that
the evidence of the parties show that both the car of the plaintiff and that of
the defendant were kept by the Police and tendered as exhibits in the
magistrate court. There is therefore, in my view, no legal basis to grant this
claim. It is dismissed. For the same reasons, I also dismiss the claim for
N10,000,000.00 as general damages.
It remains the claim for the sum of N12,500.00. The case of the defendant is
that sometime in 2004, the plaintiff bought concrete rings from him at the
cost of N25,000.00 and refused to pay him the balance of N12,500.00
despite repeated demands. The plaintiff admitted that he purchased some
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rings from the defendant and left an outstanding balance of N12,500.00. He
however stated that thereafter, the defendant had problem with the Police
at the Gwagwalada Police station. The defendant briefed him to secure his
bail, which he did. He charged the defendant N20,000.00 for his services,
which he agreed to pay. Consequently, the defendant is indebted to him
for the sum of N7,500.00. In his reaction, the defendant stated that the
plaintiff’s allegation of legal fees of N20,000.00 is false and that the plaintiff
never had any other dealings with him involving Police or legal services.
The learned counsel for the defendant posited that the plaintiff admitted
that he was owing the defendant the sum of N12,500.00. He submitted that
a fact admitted needs no further proof. It was further argued that the
plaintiff’s allegation that the defendant contracted him to defend him at
the Police station has no foundation and must be disregarded as unproved.
There was no submission by the plaintiff on this claim except that he urged
me to dismiss the counter claim ‘as an exercise in futility.’
Now, the defence counsel is correct that the plaintiff admitted that he was
indebted to the defendant for the sum of N12,500.00. His defence is that he
rendered legal services to the defendant by securing his bail at the Police
station at an agreed fee of N20,000.00. According to him, the defendant is
owing him N7,500.00 being the difference between N20,000.00 and
N12,500.00. It is an immutable principle of law that he who asserts must
prove. In this case, the plaintiff has the burden to prove his assertion that
he rendered legal service to the defendant for the sum of N20,000.00. In the
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course of his cross examination, the plaintiff stated that Abdul and Giwa
were present when he rendered the legal service to the defendant at the
agreed fee of N20,000.00. He did not call any of them as a witness and
there is no other evidence to support his allegation. In the circumstance, I
hold that the plaintiff has not established his defence to the defendant’s
claim of N12,500.00. This claim succeeds and is granted.
The stage is set to conclude. I enter judgment for the defendant against the
plaintiff for the sum of N12,500.00. Let the parties bear their costs.
_________________________
HON. JUSTICE S. C. ORIJI
(JUDGE)
Appearance:
1. Lucky Okpeahior Esq. for the plaintiff.
2. I. A. Aliyu Esq. with Miss A. Isioma for the defendant/counter
claimant.