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  • Mbakaan v. Mtav
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  • 2004-11-15
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Mbakaan v. Mtav

KOBO MBAKAAN

V

SHAMINJA MTAV

ORKPEN MBAZA

MTOMGA ANKUNYA

NDERAMO YAAYA

TYOKURA ANKUNYA

TERZUNGEW MBATSAV

SWENDE UANDE

COURT OF APPEAL

( JOS DIVISION )

ALOMA MARIAM MUKHTAR JCA ( Presided )

OLUDADE OLADAPO OBADINA JCA

IFEYINWA CECILIA NZEAKO JCA ( Read the Lead Judgment )

CA/J/81/94

FRIDAY, 14TH MAY, 2004

APPEAL - Brief of argument - Content of

APPEAL - Evaluation of evidence - Appeal court interfering with trial court’s evaluation of evidence where there is a complaint on appeal of the judgment being against the weight of evidence - Propriety of

APPEAL - Issue for determination - Where no argument is proferred on Consequence of

APPEAL - Issue for determination - Need for to be distilled from grounds of appeal and argued - Consequence of appellant failing to so distill issues for determination

APPEAL - Issues - Respondent’s issues for determination - Need for to be distilled from the appellant’s grounds of appeal or his cross appeal and argued

APPEAL - Issues for determination - Need to argue rather than grounds of appeal

EVIDENCE - Evaluation of evidence - Appeal court interfering with trial court’s evaluation of evidence where there is a complaint on appeal of the judgment being against the weight of evidence - Propriety of

EVIDENCE - Judgment - When may be said to be against the weight of evidence

EVIDENCE - Omnibus ground of appeal - Complaint of - Meaning of

EVIDENCE - Onus of proof - On whom lies

EVIDENCE - Weight of evidence - Determination of - Considerations for

JUDGMENT AND ORDERS -  Omnibus ground of appeal - Complaint of -  Meaning of

JUDGMENT AND ORDERS - Judgment - When may be said to be against the weight of evidence

POLICE - Power of after investigation to transfer or prosecute a matter Section 117 of the Criminal Procedure Code Law considered

POLICE - Refusal of to prosecute under section 117 of the Criminal Procedure Code Law - Duty on to so state in writing

STATUTE - Criminal Procedure Code Law, section 117 - Power of police after investigation to transfer or prosecute a matter

TORT - Malicious prosecution - ‘To prosecute’ - Meaning of

TORT - Malicious prosecution - Claim for by plaintiff where charge complained of preferred by Police - Onus on plaintiff to succeed

TORT - Malicious prosecution - Ingredients of - Conjunctive proof of

WORDS AND PHRASES - ‘To prosecute’ - Meaning of

WORDS AND PHRASES - ‘Omnibus ground of appeal’ - Meaning of 


Issue:

Whether there were credible and sufficient evidence to prove that the plaintiffs were indeed prosecuted maliciously, including whether the defendant set the law in motion, leading to the criminal charge made against them in order to justify the decision which the learned trial Judge reached.

Facts:

The parties herein are farmers residing in villages situate in KatsinaAla Local Government Area of Benue State. The 1st plaintiff’s/respondent’s farmland shared a common boundary with the defendant/appellant’s farmland. The 2nd - 7th plaintiffs and four others had done some work of making mounds for the 1st plaintiff/respondent on his farm at his request. It is the case of the 2nd - 7th respondents that they never encroached on the farm of the appellant, but that the appellant, actuated by malice without reasonable and probable cause, filed a report against the 1st respondent and them to the police. The report was for the offence of criminal trespass, intimidation and theft, contrary to sections 348, 392 and 287 of the Penal Code.

Consequent upon the said report, the respondents were unsuccessfully prosecuted in suit No. MCK/530/89 at the Chief Magistrate Court, KatsinaAla. Thereafter, the respondents by a writ of summons filed at the High Court of Katsina-Ala in suit KHC/6/91, claimed against the appellant, the sum of N73,060.00 being special and general damages for malicious prosecution. At the conclusion of the trial, the trial Judge gave judgment in favour of the respondents jointly in the sum of N10,000.00 as damages, with N1,000.00 costs.

Dissatisfied, the appellant appealed to the Court of Appeal.