Chiabee Bayol Vs Iorkighir Ahemba (2014)

LAWGLOBAL HUB Lead Judgment Report

OKAY ACHIKE, J.S.C.

On the 20th of December, 1985 the Defendant made a report against the Plaintiff to the Police at Ikyogen, Kwande Local Government Area of Benue State alleging that the Plaintiff with his two wives and his brother went to the Defendant’s rice farm to steal his rice by harvesting the rice thereon. Consequent to the said report, the Plaintiff with his wives and brother were arrested and prosecuted at the Upper Area Court Adikpo on a first information Report alleging thefts of the Defendant’s rice. The Plaintiff and all the accused persons were however discharged. Consequently upon the termination of the criminal proceedings, the plaintiff instituted a civil suit against the Defendant at the Katsina-Alu High Court claiming N25,000.00 general and special damages for malicious prosecution. In proof that the criminal prosecution terminated in his favour, the plaintiff tendered the record of proceedings of the criminal trial, which was admitted in evidence as Exhibit 1.

At the conclusion of the hearing and after counsel’s addresses, the learned trial judge dismissed the Plaintiff’s claim in its entirety. The plaintiff, then as Appellant, appealed to the Court of Appeal relying on seven grounds of appeal. The Court of Appeal, after due hearing, dismissed the appeal and thereby affirmed the decision of the learned trial judge. That court, per the leading judgment of Katsina-Alu, JCA (as the then was), to which Aikawa and Okezie, JJCA concurred, concluded its judgment thus: “I must observed (sic) that the court even though it discharged the appellant, did not find that the prosecution was malicious. The picture that clearly emerges is like this. The appellant did not prove that the respondent instituted the prosecution. There was evidence which the lower court accepted that the respondent had a reasonable and probable cause to make the report to the police. In addition no malice was proved against the respondent. The only ingredient that the appellant proved was that the prosecution terminated in his favour. Clearly this is not enough. To succeed in an action for malicious prosecution the plaintiff must prove all the favour (sic) ingredients against the defendant. So that the decision to dismiss the claim was amply supported by the evidence led. In the result this appeal fails and it is accordingly dismissed”. Still dissatisfied, the Appellant further appealed to this court, relying on nine grounds of appeal. His learned counsel, Mrs. F.M. Ebofuame–Nezan formulated the following five issues for determination:

“(1) Whether in coming to its dismiss (sic) appellant’s appeal the Court of Appeal dealt with an issue that did not arise under the grounds of appeal while omitting to deal with issues properly raised before it, and if so the Legal consequences of its so doing

(2) Whether the holding by the Court of Appeal that the court considered evidence properly adduced before it, and did not rely on the evidence of a witness not before it in reaching a decision to dismiss appellants case is correct having regard to the Record of Appeal

(3) Whether the rule that evidence of a witness in an earlier proceeding is irrelevant in a subsequent proceeding except for purposes of cross– examination as to credit and in circumstances envisaged by S.34 (1) of the Evidence Act, admits of exception in malicious prosecution cases

(4) What is the Legal consequence upon its judgment of the trial court considering and relying on the evidence of a witness not before it

(5) Whether the misdirection by the Court of Appeal in stating that “it was therefore not surprising when the criminal court wondered why in spite of their findings the police went ahead and prosecuted the appellant occasioned a miscarriage of Justice”.

It may be noted that the Respondent neither filed a Respondent’s brief nor was he represented at the oral hearing. At the hearing learned counsel for the Appellant, Mr. J.D. Mozie, after adopting Appellant’s brief urged us to allow the appeal and order a retrial.

ISSUE ONE

The essence of Issue One is the legal consequence of where the court below dealt with an issue that did not arise under the grounds of appeal and yet failed to deal with issues properly raised before it. This issue is clearly two fold and each aspect should be treated separately in order to produce clarity. Briefly, the issue complains first that the court below raised an issue that did not arise under the grounds of appeal, and second that it failed to consider two issues that were raised in the appellant’s brief at the court below. The trial judge of the Benue State High Court, sitting at Katsina-Alu, expressly found that the appellant had failed to establish only two of the ingredients vital to his claim, namely, absence of reasonable and probable cause and presence of malice, nevertheless, the leading judgment of Katsina – Alu JCA (as he then was) proceeded to inquire into whether or not the Respondent set the ball in motion for the prosecution of the Appellant. Speaking on this vein, this is how his Lordship based the question. On the facts of this case, can it be said that the respondent set in motion the prosecution of the appellant? Strangely enough, no answer was given to this poser and none was necessary because the learned trial judge, as earlier noted, had thought that the point was conceded by the Respondent. Thus adverting to this point posed in the leading judgment of the court below, this is what the learned trial judge said, inter alia, in his judgment:

“Since the defendant (i.e. the Respondent herein) has admitted that as a result of his report the plaintiff was unsuccessfully prosecuted for theft all that I have to consider now is whether the plaintiff has therefore proved his case against the defendant” It is manifestly clear from the foregoing that the submission by the learned Appellant’s counsel in her brief that the court below “having thus raised the issue the court considered same and found that the appellant failed to prove that the respondent instituted the prosecution” is not correct. While it is true that the lower court raised that issue nevertheless it neither considered it nor made any finding in respect thereof.

Clearly, the law is not in doubt that neither the trial nor the appellate court is entitled to raise an issue that never arose from the grounds of appeal or even raise an issue suo motu not submitted for consideration and input by the parties counsel. That will be opening new vistas for the parties completely outside their contemplation which clearly offends the much – cherished principle of fair hearing. The law remains inviolate that the judgment of a court must confine its inquiry entirely to the determination of issues properly raised and canvassed by the parties before it. The court, be it trial or appellate court, must be wary to enter into the arena in the controversy between the parties by projecting the case of one of the parties rather than maintaining the equilibrium of impartiality as arbiter. Such an appearance in the arena by the court is a direct signal and invitation to miscarriage of justice.

Having meticulously perused the record of appeal and found that the learned justice of the Court of Appeal merely raised the issue but did not pursue the matter to the hilt, it is clearly unjustified for learned Appellant’s counsel to submit that he made a finding on the said issue raised that was favourable to the Respondent. In other words, the issue erroneously raised by the court, not having been considered and resolved obviously merely hangs in the air and goes to no issues. In my view, it is very speculative to urge that that question, per se and without more, has occasioned a miscarriage of justice. In the result, the authorities of Bamgboye v. Olarewaju (1991) 4 NWLR (pt. 184) 132 at p. 144 and Umar v. Bayero University (1988) 7 SCNJ 380 which are good authorities and called in aid by learned Appellant’s counsel to drive home the contention that neither the appellate nor the trial court should raise issues outside the grounds of appeal and resolve same without affording the parties’ counsel opportunity to make an input are wholly inapplicable to the facts and circumstances of this case. On the second arm of Issue One, the question is the legal consequence of failure of the court below to consider Issues No. (2) and (3) postulated by the Appellant in that court. These issues are hereby produced.