Alhaji Tsoho Musa V. Salau Yusuf (2006)

LawGlobal-Hub Lead Judgment Report

TSAMIYA, J.C.A.

The appellant was a defendant in suit No. PLD/J/198/96 instituted by the respondent (as plaintiff) at the Plateau State High Court of Justice (hereinafter referred as the trial court) wherein the respondent claimed by his writ of summons and paragraph 10 of the Statement of Claim as follows:

“WHEREFORE: the plaintiff claims against the defendant;

i. The sum of N300,000.00 (Three hundred thousand Naira only) as damages for malicious prosecutions.

ii. The sum of N200,000.00 (Two hundred thousand Naira only) as damages for injurious prosecution and the costs of this action.”

In a strict compliance with the order of the trial court, pleadings were duly filed and ex-changed and the matter came up for hearing before Damulak J. At the conclusion of the hearing of evidence of witnesses, called by the parties’ counsel, the parties’ counsel delivered their respective addresses.

The learned trial Judge, delivered a considered judgment in favour of the plaintiff/respondent by granting him the sum of N100,000.00 (One hundred thousand Naira only) as damages.

The defendant/appellant was aggrieved by the judgment and has now appealed to this court upon five grounds of appeal, originally filed on 4/8/2000. With the leave of this court granted on 18/11/2002 the defendant/appellant filed on the same day of 18/11/2002 an amended notice of appeal containing seven grounds of appeal. The seven grounds of appeal with their particulars read as follows:-

1. The learned trial Judge misdirected himself on the facts when he held that- “The plaintiff reacted and took both the workers and cement to the police station” and thereby occasioned a miscarriage of justice.

Particulars of Misdirection

a. In his evidence at pages 33-34 of the record, the plaintiff never said that he took both the workers and cement to the police station.

b. Similarly in his summary of the plaintiffs evidence at pages 64-65 of the record, the learned trial Judge never stated that the plaintiff took both the workers and cement to the police station.

c. No police officer was called from any police station to testify to such effect.

2. The learned trial Judge erred in law when he held that “From the pleadings and evidence before me, I find that the prosecution of the plaintiff was at the instance of the defendant and it was vindictive in nature” and the error has occasioned a miscarriage of justice.

Particulars of Error

a. No part of the pleadings of the plaintiff or the defendant has been shown to support the conclusion reached by the learned trial Judge.

b. The Policeman who testified as DW4 stated that:-

“On going through the case I reported to the Area Commander and recommended that the case be prosecuted. The Area Commander approved the prosecution of the case.

The complainant cannot compel us to prosecute an accused person. The complainant did not insist on prosecution but it was at the discretion of the police to prosecute the suspect.”

c. There is no evidence on record to show that the defendant/appellant did more than lay a complaint before the police.

The learned trial Judge erred in law when he held that it was:-

“Unreasonable for the defendant in getting the plaintiff prosecuted in court through the police. I find that the act of prosecuting a person in the caliber of the plaintiff for theft mere 1 1/2 bags albeit 4 1/2 bags of cement is not reasonable and probable.”

Particulars of Error

a. The defendant did not prosecute the plaintiff. It was the police that prosecuted the plaintiff

b. In the commission of an offence the caliber of the offender is irrelevant. Similarly, the quantity of stolen goods is irrelevant. It is still an offence whether one bag of cement or 100 bags of cement are stolen.

4. The learned trial Judge misdirected himself on the facts when he held that the prosecution of the respondent was malicious when in fact there was no basis for inferring malice on the part of the appellant.

Particulars of Misdirection

a. The IPO who testified as DW4 stated that:-

“The suspect confessed to taking only one and half bags of cement and denied knowledge of the whereabouts of the rest” The learned trial Judge found so.

b. There is no evidence of any previous quarrel between the defendant and the plaintiff before the incident leading to the prosecution.

5. The learned trial Judge erred in law in failing to consider and deliver a judgment on the appellant’s counter claim.

Particulars of Error

a. In his amended statement of defence and counter claim the appellant claimed N12,430.00 as special damages and N50,000.00 as general damages.

b. The appellant gave evidence in support of his counter claim and there was no evidence to the contrary by the respondent.

c. The judgment only considered the plaintiff’s claim and ended with it without a consideration of the counter claim.

6. The learned trial Judge erred in law in failing to enter judgment in favour of the appellant on his counter claim when the respondent never denied it in his evidence.

Particulars of Error

a. The appellant at paragraphs 20 to 29 of his statement of defence counter claimed against the respondent.

b. The appellant gave evidence in line with his counter-claim.

c. The respondent never denied the counter-claim through out his evidence.

7. The judgment is against the weight of evidence.

In accordance with the rules of this court, the counsel to the parties filed their respective briefs after obtaining leave of this court. In the appellant’s brief, six issues have been formulated for determination as follows: –

Issues for Determination:

1. Whether the findings of facts by the trial court that “The plaintiff reacted and took both the workers and cement to the police station” is supported by evidence before him or an in figment of trial Judge’s imagination. This issue is predicated on ground one of the grounds of appeal.

2. Whether the prosecution of the plaintiff/respondent can be said in law to have been instigated by or at the instance of the defendant/appellant. This issue is predicated on ground two of the appellant’s grounds of appeal.

3. Whether the trial court was right in law when he held that the defendant/appellant had no reasonable and probable cause for reporting the loss and/or of his 4 1/2 bags of cement. This issue is predicated on ground three of the appellants ground of appeal.

4. Whether the learned trial Judge misdirected himself on the facts and in law when he held that the prosecution of the plaintiff/respondent was malicious. This issue is predicated on ground four of the appellants ground of Appeal.

5. Whether it was a fatal error in Law committed by the learned trial Judge who failed completely to make any findings and then give any decision on the appellant’s counter-claim before him. This issue is predicated on grounds five of the appellants grounds of appeal.

6. Whether the learned trial Judge was justified on the strength of evidence before him to have awarded general damages of the One Hundred Thousand Naira (N100,000.00) against the defendant/appellant. This issue is predicated on ground seven of the appellant’s ground of appeal.

The respondent in his brief of argument, set out four issues for determination in this appeal as follows:-

Issues for determination

1. Whether the plaintiff/respondent established malicious prosecution at the trial.

2. Whether he was entitled to judgment, having established malicious prosecution.

3. Whether judgment and findings were not made by the trial court on the counter-claim.

4. Whether the appellant is entitled to a judgment on the counter-claim.

At the hearing of this appeal, learned counsel for the appellant informed this court that he was abandoning grounds 6 of the grounds of appeal. The same is therefore hereby struck out.

Before delving into the submissions of the learned counsel vis-a-vis the issues submitted for determination in this appeal, I shall state the facts of this ease briefly.

From the record of this appeal, the brief facts of this case is that, defendant/appellant made a criminal report against the plaintiff/respondent to the police in Jos, alleging that the plaintiff/respondent stole his 4 1/2 bags of cement. Consequent to the said report, the plaintiff/respondent was arrested and prosecuted at the Chief Magistrate Court II Jos for theft. At the end of the trial, the accused plaintiff/respondent was however discharged on merit. There was no appeal against the discharge order.

Consequent upon the discharge order the plaintiff/respondent instituted the present action against the defendant/appellant at the Jos High Court claiming the total sum of N500,000,00 as damages for both malicious and injurious prosecutions. In proof of, the criminal prosecution which’s ended in his favour, the plaintiff/respondent tendered the record of proceedings of the criminal trial, which was admitted in evidence as exhibit “A”. At the conclusion of the hearing and after counsel addresses, the learned trial Judge in a considered judgment awarded the sum of N100,000.00 to the plaintiff/respondent as damages.

Let me go to the issues formulated by the counsel to the parties. It appears in their respective briefs of argument that, the issues are substantially the same. I shall, therefore, adopt the plaintiff/respondent’s issues, as they are all encompassing and sufficient to dispose of the appeal.

Issues No.1

The essence of this issue is whether the case of malicious prosecution was established by the plaintiff/respondent before the trial court.

Let me go a bit into the law of malicious prosecution. It is now well established that in a civil action for malicious prosecution there must be proof of the following:

1. That the plaintiff was prosecuted by the defendant; in this regard, it must be shown clearly that the defendant set in motion against the plaintiff the law leading to a criminal charge.

2. That as a result of the prosecution afore-mentioned, the plaintiff was tried by a court of competent jurisdiction, discharged and acquitted; in short, that the prosecution was determined in the plaintiff’s favour.

3. That the prosecution of the plaintiff was completely without reasonable and probable cause.

4. That the prosecution was as a result of malice by the defendant against the plaintiff.

See the cases of, Co-operative and Commerce Bank of Nigeria Ltd. v. Godwin Odogwu (1990) 3 NWLR (Pt. 140) 646; Alhadi v. Allia 13 WACA 323 and Mohammed Amin v. Bannerjee (1947) A.C. 322 at 331, all cited and adopted in the case of Balogun v. Amubikahun (1989) 3 NWLR (Pt. 107) 18.

All the above mentioned four elements must be present for the successful action for malicious prosecution and the onus is always on the plaintiff to prove each and everyone of them. The burden of proof: however, as said by Niki Tobi (J.C.A. as he then was) in Ojo v. Okitipupo Oil Palm Plc. (2001) 9 NWLR (Pt. 719) at p. 696, “is not a simple matter of taking bread, butter and coffee on the break fast table of the Englishman. It is much more than that.”

In this issue No. 1, four ingredients are required to be examined:-

a.  was the appellant the prosecutor?

b. Was there a reasonable and probable cause for the prosecution?

c. Was there any evidence that the plaintiff was discharged and acquitted i.e. was the prosecution was determined in his favour?

d. Was the prosecution actuated by malice?

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. In our peculiar circumstances, as in this case, who can we say set in motion the prosecution of the plaintiff/respondent?

On this first ingredient as to whether the plaintiff/respondent was prosecuted by the defendant/appellant, the learned counsel for the appellant has submitted that the evidence of DW4 (the investigation police officer) shows clearly that the decision to prosecute the plaintiff/respondent was entirely that of the Area Commander. That the police has a legal duty vested in it by Section 23 of the Police Act 1990 to conduct investigation, and prosecute any person against whom they feel that there is sufficient evidence to prosecute. That the person who may have reported the case then becomes only a witness for the police. That if the police feels that the complainant’s complaint is not genuine, the police will not prosecute. That the defendant/appellant did not initiate personal criminal prosecution against the plaintiff/respondent. The learned counsel relies on the following cases:-

1. Co-operative and Commerce Bank (Nig.) Ltd. v. Godwin Odogwu (1990) 3 NWLR (Pt. 140) 646 ratio 2, 3, & 4 and;

2. Bayol v. Ahemba (1999) 7 SCNJ 223 at 232 paras. 10- 15; (1999) 10 NWLR (Pt.623) 381.

He urges this appeal to be allowed on this ground.

On the other side, the learned counsel for the plaintiff/respondent has submitted that there is abundant evidence on record of proceedings showing that the defendant/appellant sets out the machinery in motion in prosecuting the plaintiff/respondent. He added that the plaintiff/respondent’s evidence and the evidence of his witness as well as the evidence of the defendant/appellant all established that the defendant/appellant was actively instrumental in setting the law in motion against the plaintiff/respondent. That he (the defendant/appellant) did not only stop at reporting the matter to the police, but also saw to it that the plaintiff/respondent was charged to court, and prosecuted. The learned counsel relies on the case of Zaga Emberga v. Dzunne Tyowula & 2 Ors. (1996) 7 NWLR (Pt. 459) 213 particularly at page 223 – 224 per Muntaka – Coomassie JCA; and the case of Balogun v. Amubikahun (supra).

He urges this court to resolve this issue in favour of the plaintiff/respondent.

The reason for the decision of the trial court on this first ingredient is clear on p. 70 of the printed record of proceedings as follows:

“It is evidence that the plaintiff has stopped work on the renovation embarked upon by the defendant without the knowledge of the plaintiff who had taken the 1 1/2 bags of cement to the police station and subsequently to the Chief Magistrate Court, West Mines Street Jos. This probably made the defendant to insist on the prosecution of the plaintiff who was a tenant for a long time. It is also in evidence that the defendant did not only attend court but also conveyed a pressman to the court as a result of which the case was published in the Nigerian Standard. I find that the prosecution of the plaintiff was at the instance of the defendant .. … I resolve the first issue in favour of the Plaintiff.”

This findings and conclusions of the learned trial Judge are not perverse. If any thing, they are truly and thoroughly borne out from the evidence before him. From the evidence relied upon by the trial court it is shown that the defendant/appellant reported to the police that plaintiff/respondent stole his 4 1/2 bags of cement, that he took the police to the plaintiff/respondent’s office from where the plaintiff/respondent was invited to their station at the Area Commander’s office. The defendant/appellant did not stop there, he made sure that a criminal action was taken against the plaintiff/respondent by giving statement and also searched and obtained some people whose statements were recorded as witnesses and subsequently gave evidence as prosecution witnesses after the plaintiff/respondent was arraigned and prosecuted before the Chief Magistrate Court for theft. Therefore, it was he that technically set the whole prosecution in motion. He was actively instrumental in doing this.

I should like to point out that a man who reports a case to the police, makes a statement to the police and perhaps takes the police to either the scene of crime or the other party and produces such witnesses as he thinks support his false allegation against the other party, as in this case, in my view, is the prosecutor. In this country, these things mentioned are necessary follow up to a report to the police and if the complainant refuses to supply them, the police might well charge the complaint with giving false information to the police. If on the other hand he merely makes a complaint and does nothing more, the police might well refuse to investigate the complaint. There will be then no charge and so no question of malicious prosecution. See Payin & Anor. v. Aliuah (1953) 14 WACA 267. In any case, the defendant/appellant did everything to the question whether he was the prosecutor.

I shall therefore not interfere with the findings and conclusions of the learned trial Judge on this first ingredient and I so hold. This first ingredient is resolved in favour of the plaintiff/respondent.

The next issue [ingredient (b)] on issue No.1 is the requirement for reasonable and probable cause, absence of which the plaintiff has to prove in the instance. The reasonable and probable cause to my mind, 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. See Balogun v. Amubikahun (supra). The belief in criminal culpability of the plaintiff must be honest, based upon full conviction, founded upon reasonable grounds in relation to a set of facts and circumstances which if true would lead every 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. See the case of Herniman v. Smith (1938) A.C. 305, which was cited and adopted in the case of Balogun vs. Amubikahun (supra).

It was the submission of the learned counsel for the defendant/appellant on this point, that the test for determining “reasonable and probable cause” for purposes of an action for malicious prosecution is to find out in the first instance, what were the facts as known to the defendant at the time of making the charge/complaint, and then decide whether these facts constitute “reasonable and probable cause.” He relies on the decision contained in the case of Co-operative and Commerce Bank (Nig) Ltd. Vs. Odogwu (supra). The learned counsel further submitted that the facts known to the defendant/appellant at the time of making complaint, cannot be said, therefore, that the defendant/appellant had no justification in reporting to the police since he did not want to take the laws into his hand by engaging the plaintiff/respondent in a physical combat.

However, the learned counsel for the plaintiff/respondent has argued that no probable or reasonable cause existed for the defendant/appellant to lodge a complaint of theft against the plaintiff/respondent at the time of making the complaint to the police (underline mine).

Taking a cue, from the above, I ask myself, what were the facts known to the defendant/appellant at the time the report was made? They are these; The plaintiff/respondent stopped work on the renovation of his rented rooms embarked upon by the defendant. That the plaintiff/respondent had no knowledge of the said renovation. That consequent upon, the plaintiff/respondent confiscated the 1 1/2 bags of cement from the labourers who were sent by the defendant/appellant, to the police and subsequently to the Chief Magistrate Court, West of Mines Jos. That the defendant/appellant went to the plaintiff and inquired why he did so. That the defendant/appellant knows that the plaintiff/respondent was a senior judiciary officer and also the tenant to the defendant for many years.

In the circumstances, I again ask myself, was the defendant/appellant justified in laying, the complaint he made? The answer is No. The facts as known to the defendant/appellant at the time of making the compliant, in my opinion, constitute no reasonableness and probable cause.

The learned trial Judge in my view, did make a correct finding on these facts when he quoted and relied on some extracts from the ruling of the Chief Magistrate Court (as contained in Exhibit A) and concluded:

“This part of the Court’s ruling tends to show how unreasonable the defendant was in getting the plaintiff prosecuted in Court through the police. I find that the act of prosecuting a person in the caliber of the plaintiff for theft of 1 1/2 bags albeit 4 1/2 of cement, is not reasonable and probable. ”

I think, from the totality of evidence in this case, no reasonable man, having knowledge of the facts which the defendant/appellant knew at the time he made the complaint to the police, would have believed that the plaintiff/respondent was probably guilty of the crime imputed. No reasonable man put in his position would suspect the plaintiff/respondent, and report the matter to the police.

Therefore I hold that the defendant/appellant did not himself honestly believe that the plaintiff/respondent was guilty of that charge.

This arm of issue No.1 is therefore resolved in favour of the plaintiff/respondent and against the defendant/appellant.

The next ingredient (ingredient C) on issue No.1 is related to the evidence that the respondent was discharged and acquitted.

In the course of the trial, a certified copy of proceedings in the Chief Magistrate Court was tendered and admitted and marked as exhibit A. It is manifest from exhibit A, that the trial Chief Magistrate Court in a considered judgment discharged the plaintiff/respondent. It is also clear that there was no evidence before the Trial Chief Magistrate Court to support conviction of the plaintiff/respondent.

What was the nature of the discharge order? The section under which the trial Chief Magistrate Court used in discharging the plaintiff/respondent showed there was no iota of evidence against the plaintiff/respondent. Section 159 (1) of the Criminal Procedure Code connotes complete exoneration. Therefore this ingredient in issue No.1 is also resolved in favour of the plaintiff/respondent.

The last and final ingredient on issue No.1 to be proved along with others was for the plaintiff/respondent to prove that the prosecution was as a result of malice by the defendant/appellant against the plaintiff/respondent.

The word, “Malice” – ordinarily means, the wish, desire, or intention to hurt or harm some one. See Ojo v. Okitipupo (supra) at p. 696 per NIKITOBI (J.C.A.) as he then was). A defendant, therefore, who believed that he had genuine complaint against a plaintiff, to the knowledge of a reasonable person or the police, is also genuine, the defendant cannot be liable to a civil action of malicious prosecution. This is because there is no wish, desire or intention to hurt or harm the Plaintiff outside a possible commission of a crime.

The word “Malice,” was defined also to mean the intentional doing of wrongful act without cause or excuse with intent to inflict an injury or under circumstance that the law will imply an evil intent. Under Black’s Law Dictionary, 6th Edition p. 956, the word “malice” was defined to mean, a condition of mind which prompts a person to do a wrongful act willfully, i.e. on purpose, to the injury of another or to do intentionally a wrongful act towards another without justification or excuse.

That being the case, “Malice,” can constructively be deduced and therefore established when the complainant lacked belief in the cogency of his complaint or careless or reckless concerning the truthfulness of his report to the police. In Balogun v. Amubikahun (supra) at p. 28 paras. A-C. held by the Supreme Court to the effect that, the absence of belief in the truthfulness of a complaint or a desire to procure conviction by all means leading to concocting evidence is evidence of malice.

In the appeal at hand the defendant/respondent quite frankly, going by the nature of his report to the police and the discharge order of the Chief Magistrate Court, knew or ought to know, he was making a false allegation, and his desire in doing so, was for persecution, but not prosecution for the ends of justice.

In my view, therefore, malice in the sense of a wrongful act done intentionally or from an indirect and improper motive has been established against the defendant/appellant I therefore hold so. This last ingredient is resolved m favour of the plaintiff/respondent, and against the defendant/appellant.

In view of what I said above, I hold that all the ingredients of issue No. 1 are present and proved in this case. The position of the learned trial Judge holding that the plaintiff/respondent has proved his case against the defendant/appellant therein is not assailable and I so hold. Issue No. 1 of the plaintiff/respondent is resolved against the defendant/appellant, and grounds 1, 2, 3, and 4 on the defendant/appellant’s grounds of appeal fail.

Issue No.2

The essence of this issue is whether the plaintiff/respondent was entitled to judgment having established malicious prosecution. It is important to note that, once the ingredients of malicious under our law are proved, the question of entitlement to judgment flows as a matter of course. In this appeal, the plaintiff/respondent is entitled to judgment having established by evidence all the essential ingredients of malicious prosecution. For a successful prosecution of malicious to succeed, all the four mentioned ingredients must be proved. See Balogun v. Amubikahun (1989) 3 NWLR (Pt.107) 18, 19 & 20.

So it has been in this case. I resolve this issue in favour of the plaintiff/respondent, and having said so, ground No. 7 of the defendant/appellant’s grounds of appeal, also fail.

Issues No.3 & 4

The substance of these issues together relates to question of wheather judgment and findings were made by the learned trial Judge on the defendant/appellant’s counter – claim.

On this issue, the learned counsel for the defendant/appellant submitted that in spite of the clear evidence by the defendant/appellant in support of his counter-claim the learned trial Judge made no finding on it nor said anything at all on the counter-claim. That by virtue of Order 25 Rule 16 of the Plateau State High Court (Civil Procedure) Rules – 1987, the trial Court before whom the counter-claim is made has a legal duty to make findings on a counter-claim and must give its decision as to whether the counter-claim succeeds or fails. The learned counsel cited and relied on the case of J.D. Anoliefo Enterprises (Nig.) Ltd. v. Universal Trust Bank (Nig.) Ltd. (2001) FWLR (Pt. 69) 1334 at 1338 ration 4 and Dansol Organization Ltd. v. Nigeria Technical Company Ltd. (2001) FWLR (Pt. 59) 1267 at 1270, ratio 4. The learned counsel concluded that failure on the part of the trial court to perform such duty is wrong in law.

The learned counsel for the plaintiff/respondent on the other hand submitted that since the learned trial Judge gave judgment on the issues in the pleadings and these same issues constituted the counter-claim, it was therefore unnecessary to proceed to give a judgment in the same issue m the name of judgment on the counter-claim. The learned counsel cited and relied on Alhaji Buba Usman v. Mohammed Taminu Garke (2003) 14 NWLR (Pt. 840) 261 at 288 paras. C – D. He added that the counter-claim was subsumed in the judgment of the trial court, and as such it was wrong for the defendant/appellant to canvass that there was no judgment on the counter-claim.

The learned counsel for the plaintiff/respondent was wrong, in his submission on this issue. The counter-claim, in my view, must be adequately considered in the judgment of the trial court and the trial court must either up-hold or dismiss it, depending on the facts and circumstances and the law applicable to the particular case. See Dansol Organization Ltd. v. Nig. Tech. Co. Ltd (supra). The law applicable to this counter-claim is the Plateau State High Court (Civil Procedure) Rules 1987, which provides under Order 25 Rule 16, that the learned trial Judge before whom the counter-claim was made must make a finding on it, and a decision as to whether it succeeds or fails must be made.

I have carefully examined the printed record of this appeal and I have not seen any evidence to show the learned trial Judge’s decision or any findings made regarding the counter-claim.

The considered judgment of Damulak J. covered only the plaintiff/respondent claim without making any finding whatsoever to the counter-claim. The learned trial Judge in his judgment, however, completely lost sight of the counter-claim that fell due for determination.

This was unfortunate.

It has been said times without number that a counter-claim is a cross action, a fresh action completely distinct from the one commenced by the original plaintiff. The counter-claimant is thus a plaintiff in his own right while the original plaintiff in the suit and any other necessary party joined in the defence of the counter-claim becomes defendant. See J.D. Anoliefo Enterprises (Nig.) Ltd. v. Universal Trust Bank (Nig.) Ltd. (2001) (supra).

It is true that the learned trial Judge has a duty, imposed by Order 25 Rule 16 (supra) to make a finding on the counter-claim and gives decision on it. This duty on the trial Judge is imperative otherwise it will be extremely difficult for a party whose case has not been accorded adequate and full consideration to accept that justice has been done to him. Failure to discharge this duty, to determine the counter-claim, which was properly made, and evidence given to that effect, is a lapse that this court could not, in the circumstance of this appeal, close its eyes.

This leads me to the operation of section 16 of the Court of Appeal Act, Cap. 75 Laws of the Federation of Nigeria, 1990. It provides, inter-alia that the court may re-hear the case in whole or in part as if proceedings had been instituted in this court.

Now, I cannot proceed from the record alone, having regard to all I have said above to evaluate the evidence and make the findings, because I am at a disadvantage as I did not see the witness that gave evidence on the counter-claim. It is therefore difficult to assess their credibility. The case of the plaintiff was not considered as it ought to have been and so I do not know what the result would have been had the counter-claim properly considered by one who saw and heard all the witnesses. Nor can it be said that the defendant/respondent have been proved liable for the same reason and more. His own was not even shown to have been considered. In any case the evidence on both sides was not evaluated as a whole by this learned trial Judge who saw and heard the witnesses. The learned trial Judge as I said above was in error in his approach to the case.

I have therefore come to the conclusions that the proper order to make here is to remit this case back to the trial court so that the issue of counter-claim raised by the defendant/appellant be considered.

That being the case, ground of appeal No. 5 with its related issue succeeds in favour of the defendant/appellant and I will allow the appeal on this only.

Having allowed the appeal on this ground of appeal, I would say, on the other hand, that grounds of appeal (1), (2), (3), (4) and (7) together with their related issues (I), (2), (3), (4) & (6) on the defendant/appellant’s brief of argument fail and are dismissed.

As ground 5 with its issue No. 5 succeeds, the counter-claim therefore is remitted back to the trial court for the learned trial Judge, Damulak J. to make a finding/decision on it.

In the final analysis, the appeal succeeds in part and on the other hand fails in part.

I award the sum of N10,000.00 as costs against the defendant/appellant.

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Other Citations: (2006)LCN/1876(CA)