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3PLR/1990/39  (CA)



1990 3 NWLR 647









PRACTICE AND PROCEDURE ‑ APPEAL ‑ Findings of fact of trial court ‑ Attitude of appellate court.

PRACTICE AND PROCEDURE ‑ EVIDENCE ‑ Admissibility ‑ Public document ‑ Type of secondary evidence thereof admissible.

PRACTICE AND PROCEDURE ‑ EVIDENCE ‑ Public document under Section 108(a)(iii) Evidence Act ‑ Type of secondary evidence thereof admissible.

TORT AND PERSONAL INJURY ‑ MALICIOUS PROSECUTION ‑ Action therefor ‑ What plaintiff must prove.

NOTABLE PRONOUNCEMENT ‑ On banks and actions for malicious prosecution.

PRACTICE AND PROCEDURE ‑ Findings of fact by lower court ‑ When appellate court will interfere.

PRACTICE AND PROCEDURE ‑ Pleadings ‑ Traverse of a pleading ‑ Effect.

TORT AND PERSONAL INJURY ‑ Malicious prosecution ‑ Malice as an essential ingredient thereof ‑ What constitutes malice.

TORT AND PERSONAL INJURY ‑ Malicious prosecution ‑ Making report of loss to judicial officer without making any specific charge against anyone ‑ Whether constitutes setting the law in motion.

TORT AND PERSONAL INJURY ‑ Malicious prosecution ‑ ‘Setting the law in motion’ by defendant ‑ What constitutes.

TORT AND PERSONAL INJURY – Malicious prosecution – ‘To prosecute’ for the purposes thereof – Meaning of

TORT AND PERSONAL INJURY – Malicious prosecution – ‘Reasonable and probable cause’ for purposes thereof – Test for determining

TORT AND PERSONAL INJURY AND PERSONAL INJURY – Malicious prosecution – What plaintiff must prove

WORDS AND PHRASES – ‘To prosecute’ for purposes of action for malicious prosecution – Meaning of



Zanda Izundu ‑ For the Appellant

P.O. Acholonu ‑ For the Respondent.


OMOSUN, J.C.A. (Delivering the Leading Judgment): In the High Court, Owerri of Imo State, the respondent who is the plaintiff in the court below sued the defendant for N20,000.00 being general damages for malicious prosecution. Pleadings were ordered, filed and duly exchanged. The case proceeded to trial. The learned Judge took evidence from both sides. Counsel addressed court. At the end of the trial Chianakwalam, J., gave judgment for the respondent and awarded him N5,000.00 damages. Dissatisfied with the judgment, the defendant has appealed to this court.


The facts are not in dispute. I will briefly state them. The plaintiff testified that he sued the defendant because of an allegation made by it that he stole N4,500.00. He was arrested and detained. His house was searched by the Police and defendant. Nothing incriminating was found. He was charged for stealing N4,500.00 before the Chief Magistrate’s Court 3, Owerri. He was found not guilty, discharged and acquitted. The plaintiff a teacher at Ogbeke Obibi Secondary School went to collect salaries for teachers in the defendant’s bank on 15TH September, 1982. In all 28 teachers and the Bursar of his school went to collect the salaries. The Cheque used to collect the salaries was in the Bursar’s name Mr. Okoro. According to him the allegation and subsequent prosecution has dented his name and image.


Cross examined by learned counsel for the defendant he answered as




“On that day I collected the cash from the bank on the orders of the Bursar who was also physically present at the counter……… The Bursar Mr. Okoro mentioned to me that the Bank alleged they over paid me by N4 ,500. 00 when the money for the teachers was paid to me”


Cross examined further, he said at p.16 lines 7‑11.


“At the Bank, the defendant complained that they overpaid the school. The Bursar Okoro in the Bank, did not tell the Bank and the Police that I was the one who collected and disbursed it. I did not admit I was overpaid by N944.00.”


The defendant called only one witness, Godwin Nweke, a Supervisor with the Douglas Road Branch Owerri. He said that on 15th September, 1982 Ogbeke Obibi Secondary School came to collect their salaries. The plaintiff was present. The Bursar, Mr. Godwin Okoro, handed over the bank tally disc to the plaintiff. The Bursar told the plaintiff to collect the salary of the school. And the plaintiff did. He said in the process of payment of the salary to him, he overpaid plaintiff by N4,500.00. The plaintiff quickly absconded with the money. He handed plaintiff Central Bank wraps of hundred pieces instead of fifty pieces. He could not balance his books at the end of the day’s work. He and the Branch Accountant, Mr. Nwankwo, after checking the accounts went to the plaintiffs school. He was not around. The other customers who were overpaid returned their overpayments voluntarily. Plaintiff turned up at the Bank the next day. He (plaintiff) admitted he was overpaid by 944.0O. The Bank Manager told him it was N4,500.00. The plaintiff asked for time to go and check his records. He would report back next day. For a week plaintiff did not report back. It was then himself, the Accountant and the Police Officer assigned to the Bank went to look for the plaintiff. They found him on the 3rd occasion of their visit and invited him to the bank. At the bank he said the N944.00 was not the Bank’s money but Isusu. Before then, a report was made to the Police by the Bank Manager that plaintiff was overpaid N4,500.00. He said the plaintiff was subsequently charged to court but was discharged and acquitted. he did not charge the plaintiff with stealing the money. He complained to the Police.


In the course of trial in the court below the plaintiff relied on the pleadings of the parties and the testimony of the witnesses in proof of his claim. He tendered a certified true copy of the proceedings in the Chief Magistrate’s Court, Owerri, where he was tried on Charge No. OW/1570C/82 for stealing but was discharged and acquitted. The proceedings was tendered and marked Ex. “A”.


In a notice of appeal filed against the judgment dated 16th May, 1984, the appellant filed 4 grounds of appeal. He sought and was granted leave to file and argue 4 additional grounds of appeal on 12th May, 1986.


The appellant has framed 7 issues for determination. They are set out below:


“(a)    The construction and effect of Section 96(2) (c) of the Evidence Law Cap. 49 Laws of Eastern Nigeria (applicable in Imo State) on the admissibility as evidence of the parties averment in their pleadings and oral testimony in court below as evidence of the proceedings and of the respondent on a criminal charge.


(b)     In the absence of a copy duly certified and legally admitted as secondary evidence under Section (96)(2)(c) of the record of proceedings and judgment in the said Magistrate Court, can the respondent be held to have proved that the appellant prosecuted him and that the judgment ended in his favour?


(c)     Where the appellant stated facts to the police (which facts do not in law constitute an offence of stealing) and the respondent was charged by police and tried with the offence of stealing, will the appellant be held to have prosecuted the respondent with the offence of stealing?


(d)     Whether averment in pleadings of appellant denying portion of respondent’s Statement of Claim by reference to their numbered paragraphs, together with a general traverse, sufficiently denied the averments in the pleadings of the respondent.


(d)     Whether there was evidence from which the court below could infer reasonable and probable cause in favour of the appellant for the alleged prosecution (which was denied) of the respondent by the appellant.


(f)      Whether there was evidence on which the trial Judge could found malice, or, alternatively, whether grounds on which the learned trial Judge inferred malice was justified.


(g)     Whether damages to the respondent was established or was rightly inferred.”


Likewise the respondent at page 2 of his brief formulated these 4 issues arising for determination:


“(a)    Whether the five facts necessary for the plaintiff to succeed in a case for malicious prosecution has been proved.


(b)     Whether proof of any such facts can be done by evidence other than by documentary evidence. The respondent contends that proof of prosecution by Appellant can be effected by ‑ circumstantial evidence, oral evidence, oral admissions by the defendant (appellant) himself, pleadings of the parties, etc.


(c)     Whether a general denial in the statement of defence without more, was enough to disprove an important point of law or fact on which a plaintiffs case rests.


(d)     Whether where a person:-


(i)      tells the story of his loss to a judicial officer; and


(ii)     mentions the name of his suspect; and


(iii)    specifies the amount of the loss


(iv)    takes the Police to search the suspect he named; and


(v)     gives evidence and calls his agents to give evidence in the criminal prosecution of the matter, (without compulsion by witness summons);

this could be sufficient proof that the defendant prosecuted the plaintiff.”


It is now well established that in an action for malicious prosecution the plaintiff must prove that the defendant was the person i.e. he set the law in motion against him, that he was tried in a court of competent jurisdiction of criminal charges and he was found not guilty and discharged, that the report against the plaintiff and his prosecution was without reasonable and probable cause but was rather actuated by malice. See Balogun v. Amubikanhun (1989)3 N.W.L.R. (Pt. 107)18,26 and 32, Alhaji v. Allie 13 W.A.C.A. 323, Mohammed Amin v. Bannerjee (1947) A.C. 322, 331


In this appeal three issues stand to be considered namely:


(a)     Was the appellant the prosecutor’?


(b)     Was there reasonable and probable cause for the prosecution?


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


Mr. Izundu learned counsel adopted appellant’s brief of argument dated 30th April, 1986 and filed on 25th August, 1986. He made oral submissions before us to highlight parts of the brief. He submitted on grounds 1, 2. 5 and 8 that the lower court did not assess the issues properly. He criticised the lower court’s finding that there was no justification for the report made to the Police. He referred to the evidence of D.W.I that the complaint was that he overpaid. He said the respondent was justified in saying that he overpaid. There was no evidence that he did not overpay. D.W.1 was not cross‑ examined on the overpayment. He submitted that the lower court did not consider the effect of this evidence. He said at no time did the appellant accuse respondent of stealing. He submitted that what the learned Judge did was in fact to try the respondent and found him not guilty. That he submits was not the issue before him. It was on this basis that he held that the complaint was malicious. He submitted that it is the complaint that was made that is essential and not the charge that was preferred.


In his submissions Mr. Acholonu said that if a man does no more than tell the story of his loss to a judicial officer, making no specific charge against anyone leaving him to determine whether the facts amount to a felony, he does not maliciously set the law in force. He submitted further that the appellant was actively instrumental in putting the law in force in that he passively told the Police that the respondent stole N4,500.00 which he knew was false. Appellant also knew that the respondent was not the payee. He said the appellant accompanied the Police to search the house of respondent. For these reasons he submits it is the appellant who set the machinery of the law in motion. He relied on Halsbury’s Laws of England 3rd Edition vol.25 article 865.


Mr. Acholonu spoke right in the first arm of his submission that if a man does no more than tell a story of his loss to a judicial officer making no specific charge against anyone leaving it to him to decide whether the facts amount to a felony, he does not maliciously set the law in motion. That is valid reasoning in law. But I disagree with him on the evidence in this case that the appellant set the law in motion. The appellant overpaid many H teachers inclusive of the respondent. When contacted they voluntarily returned the overpayments. The respondent would not return his even though he admitted before the appellant’s Bank Manager that he was overpaid by N944.00. It is true that respondent was not the payee but there is overwhelming evidence that he received the salaries of Ogbeke Obibi Secondary School on 15th September, 1982 even though the Bursar P.W.2 who signed the cheque was present. He paid his fellow teachers. In any case the complaint to the Police was that there was an overpayment to the respondent. It was the Police who investigated and decided to charge the respondent for stealing. No evidence was led to show that the appellant insisted that respondent must be charged to court at all costs. I would go further to say that even if the appellant said he suspected the respondent stole the money, it will not be liable. It did no more in such circumstances other than put the Police on the trail to locate the thief.


The onus is cast upon the plaintiff of proving not only his prosecution and acquittal but also the absence of reasonable and probable cause for the proceedings taken against him and finally to use the words of Bowen, L.J., in Abrath v. North Eastern Railway Co. (1883) L.R.l1 OBD. 440 “that the proceedings of which he complains are instituted in a malicious spirit, that is, from an indirect and improper motive, and not in furtherance of justice.” I say that unless the plaintiff proves all these things he cannot succeed in an action for malicious prosecution. The onus rests on the respondent that the appellant instituted the proceedings maliciously. He never discharged that burden. In the present case the appellant had reasonable grounds for honestly concluding that he overpaid the plaintiff and the action therefore failed. See Seton v. Oshibule (1949) 19 N.L.R. 9. Where one person makes a report against another there is a clear duty upon that person to have found out the true facts before lodging the complaint. If the Police after a thorough investigation decide to prosecute as in this case, they must have realised that there is a sporting chance he may be guilty of the offence. The respondent’s prosecutor is the person who set the criminal law in motion and in this case it is the Police. Belgore, J.S.C., in Balogun v. Amubikanhun (supra) at page 26 said:


“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; that at best may lead to an action for false imprisonment if the Police act on the information and make an arrest and prosecute unsuccessfully.” (italics ours). See Clerk & Linsell on Torts 15th Edition paragraph 1807 page 862.


In my judgment it was not the appellant who set the law in motion and can escape liability for malicious prosecution. See M. & K. Ltd. v. Lamidi Apena (1969) 1 All N.L.R. 390.


In the course of the trial, a certified copy of the proceedings in the Magistrate Court was tendered. It was admitted but later in the proceeding expunged on technical ground, namely, that it was not signed by the Magistrate. This was clearly wrong. The trial of the respondent in the Magistrate Court was “an act or record of act of judicial body.” It is a public document within the meaning of Section 108 (a) (iii) of the Evidence Act, Cap.62 and the only secondary evidence of its contents admissible in law is a certified true copy of the document. See Section 96(1) (e) and 2 (c) of the Evidence Act. It was therefore wrong first for the learned Judge to expunge the judgment and secondly to proceed to receive oral evidence from witnesses as to the trial of the respondent in the Magistrate Court. In fact he tried the respondent himself and found he was not guilty. He could not do this. A certified true copy of the document and no other kind of secondary evidence is admissible. See Bisichi Tin Co. Ltd. v. Commissioner of Police (1963) N.N.L.R. 71, Dobadina & Anor. v. Ambrose (1969) N.M.L.R. 24 at p.30. The combined effect of Section 96(2) (c) (e) and (f) of the Evidence Act is that in case of public documents, the only type of secondary evidence permissible is a certified true copy of the document and none other.


The result is that with the expunging of Ex. “A” there was no evidence that the respondent was charged of stealing and that it ended in his favour by a discharge and acquittal. As a result one of the essential ingredients of malicious prosecution was not proved. For a successful prosecution of malicious prosecution to succeed, all the four elements of the tort must be present and the onus is on the plaintiff to prove each one of them. See Balogun v. Amubikanhun (1989) 3 N.W.L.R. (Pt.107) 18, 19 & 26C.


During the hearing of this appeal, the court drew the attention of Mr. Acholonu to Section 131 of the Evidence Act. His answer was that the court is entitled to accept other available evidence in the absence of the proceedings in the Magistrate Court. He referred us to Section 73(i)(m) of the Evidence Act. Cap.62. I do not agree with learned counsel for the respondent that Section 73(i)(m) of the Evidence Act applies to this case. Section 131(i) is explicit on the point. It provides:


“When any judgment of any court or any other judicial or official proceedings or any contract, or disposition of property has been reduced to a form of a document or series of documents, no evidence may be given of such judgment or proceeding or of terms of such grant or disposition of property except the document itself or secondary evidence of its contents in cases which secondary evidence is admissible under the provisions hereinbefore contained, nor may the contents of any such document be contradicted , altered, added to or varied by oral evidence.” (italics ours).


The combined effect of Sections 96(2) (c) (e) and (f) and 131(i) of the Evidence Act is that secondary evidence of Ex. “A” can only be proved by a certified true copy. Oral evidence is ruled out completely. See Nzekwu v. Nzekwu (1989) 2 N.W.L.R. (Pt.104) 373 at 404 (F‑H).


The complaint in ground 3 is that the learned trial Judge held that the appellant did not sufficiently deny or that they admitted paragraphs 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the statement of claim. He said the appellant sufficiently denied these averments in paragraphs 2, 3 and 6 of the statement of defence. He submitted that the effect of the general traverse in the case is sufficient to put the respondent to strict proof of his averments.


To the above submission learned counsel for the respondent contended that a general denial of allegations of facts is not sufficient to put the other party to the suit to strict proof of his averment. He sought assistance of Order 33 Rule 10 of High Court Rules 1963 E.N. He submitted that every allegation of fact, if not denied specifically shall be taken as admitted and relied on Order 33 R.9 of the High Court Rules.


The answer lies in the two cases cited to us by learned counsel for the appellant namely (i) M. & K. Ltd. v. Lamidi Apena (1969) 1 All N.L.R. 320 at 392, 393 where Lewis, J.S.C., said:


“We agree with Chief Williams on this submission and would point out that this court in Ace Jimora Ltd. v. The Nigerian Electrical Construction Co. Ltd. SC.586164 on the 20th of May, 1966 adopted the views that Lord Denning had expressed in that case which we have cited. In our view therefore the learned trial Judge was in error in thinking that the defendant had not denied the plaintiff’s allegation of false imprisonment.”


I say the same of this case. In paragraph 2 of the statement of defence the appellant averred as follows:


“The defendant denies paragraphs 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the plaintiff’s statement of claim.”


In my opinion this is a traverse as Lord Denning stated in Warner v. Sampson (1959) 2 Q.B. 297.


“Now the effect of a traverse has been known to generations of. pleaders. It casts upon the plaintiff the burden of proving the allegations denied. See Bullen and Leake on precedents (3rd Edition p.i36). So this general denial does no more than put the plaintiff to proof.”


Lastly, it is submitted that the learned trial Judge failed to apply the proper tests for determining whether there was a reasonable and probable cause in a case of malicious prosecution. The learned counsel for appellant referred to the tests laid down in Kwakyi v. Kojo Bandoh 4 W.A.C.A. 197 at page 200 which is as follows:


“In determining whether or not there is an absence of reasonable and probable cause, the Judge has to ask himself whether a reasonable man in the position of the defendant and having the knowledge which the defendant in fact had or could and ought to have had would have supposed at the time of the prosecution that the prisoner is guilty. If this question is answered in the affirmative, there is cause of action.”


In Usifo II v. Edo Uke & Anor. [1958] SCNLR 109; (1958) 3 F.S.C. 59, the Federal Supreme Court after adopting and approving the definition of reasonable cause” by Hawking, J., in Hicks v. Faulkner (1788) 1 Q.B.D.


171 stated that:


“In order, therefore to determine the question of reasonable and probable cause, it is necessary first to find out what were the facts as known to the defendant at the time of making the charge and then to decide whether these facts constitute reasonable and probable cause.”


Taking a cue from the above, I ask myself what were the facts known to the appellant at the time the report was made. They are these. D .W. 1 made overpayments to several teachers on 15th September, 1982. The respondent was one of them. He admitted he was overpaid by N944.00 but subsequently retracted from that statement. Although the respondent was not the payee on the cheque prepared and signed by Godwin Okoro the Bursar he received the salaries from the cashier at the cage. The Bursar was present. It was the respondent who paid his co‑teachers in a church. The other people who were overpaid voluntarily returned their overpayments. In any case the complaint laid by the appellant was that there was overpayment to the respondent. In the circumstances, I again ask myself, was the appellant justified in laying the complaint he made. The answer is yes. The facts as known to the appellant at the time of making the complaint in my opinion constitute reasonable and probable cause.


The learned Judge in the lower court did not make a finding on these facts. He embarked on a full trial of the respondent, found him not guilty and concluded that the appellant had no reasonable and probable cause to make the charge. He was in serious error in so holding.


I am unable to accept the submissions of Mr. Acholonu, learned counsel for the respondent that there was no reasonable and probable cause for laying the charge. He has given reasons which are untenable. I agree with him it is a question of fact which the Judge has to determine, but the learned trial Judge was wrong in holding that there was no reasonable and probable cause. Although there may be no direct evidence of malice, and there is none in this case, yet malice may be inferred from the surrounding circumstances of the case, when these disclose a reasonable and probable cause for the proceedings complained of. Lack of honest belief in the guilt of the respondent constitutes malice in fact in a case of malicious prosecution Payin v. Aliuah (1953) 14 W.A.C.A. 267. In my view malice in the sense of a wrongful act done intentionally or from an indirect and improper motive has not been established. In the present case the appellant had reasonable grounds for honestly concluding that the respondent was overpaid and intended to keep the money so overpaid. His action must therefore fail.


The lower court failed to evaluate properly the evidence before it and this court is in as good a position to evaluate the evidence on the printed records. See Awobiyi & Sons v. Igbalaiye Brothers (1965) 1 All N.L.R. 163, Chief Kakarah v. Imonikhe (1974) 4 S.C. 151. It is now well settled that a Court of Appeal does not interfere with the findings of facts of the court of trial for the mere sake of interferring unless they are perverse. I can do no better than refer to the case of Chief Frank Ebba v. Chief Warri Ogodo (1984) 4 S.C. 84 at page 99 where Eso, J.S.C., stated the legal position clearly thus:


“But this division and or rather does not arise. Where the question does not affect the issue of credibility of witnesses, in other words, the Court of Appeal itself will obviously be in as good a position as the trial court, for in such a case the trial court has no advantage really over the Court of Appeal. For the Court of Appeal will be in a proper position to evaluate as the trial court the evidence which has been given in the case for in such cases the matter in dispute has been completely narrowed down to inference that could be drawn from proved facts without going through the rigorous of credibility of witnesses. When we have this type of cases, the Court of Appeal should not shrink from the task of such evaluation or be inhibited therefrom just because it is a Court of Appeal”.


So it has been in this case. All the grounds of appeal argued before us succeed. I will allow the appeal, set aside the judgment of Chinankwalam, J., dated 16th May, 1984 delivered at the High Court of Owerri inclusive of costs. The Suit No. HOW/169/83 is hereby dismissed and this shall be the judgment of the court below. Costs in the lower court is assessed at N300.00 in favour of the appellant and in this court N360.00


OLATAWURA, J.C.A.: I had a preview of the judgment of my learned brother, Omosun, J.C.A. It appears to me that the learned trial Judge fully appreciated the law applicable but regrettably misapplied them to the evidence before him.


On the issue of proof the learned trial Judge said:


“The burden of the proof (sic) in an action for damages for malicious prosecution lies in the first instance on the plaintiff. It is not sufficient for him to prove that he was innocent of the crime for which he was prosecuted by the defendant by proving that the prosecution terminated in his favour. He must also show that the defendant acted maliciously and without reasonable and probable issue.” (italics ours).


I agree with this principle of law clearly stated by the learned trial Judge. The change of mind by the respondent after he has admitted that he F was only overpaid the sum of N944.00 ought to have put the learned trial Judge on inquiry about the actual position of things in the Appellant’s Bank on that day. A man who discovered that he was overpaid by a Bank and later on returned the money is an honest man. Similarly a Cashier who overpaid customers and later asked the customers he paid that day acted in good faith and cannot be accused of false accusation unless there was never any shortage of money or overpayment by him. The action of the Bank was not only reasonable but also accords with common practice that follows a loss of money and there was reasonable cause for such a report. It was not malicious. From the printed record other people returned the money, this in my view is a justification for the enquiry made from the respondent and which led to police intervention. The learned Judge has misconstrued Section 294(2) of the Criminal Procedure Law. The certification of proceedings of court is done by the Registrars of Court and the certificate cannot be questioned unless the proceedings are not fully copied. It is the Judge or magistrate that records evidence in the record book. Furthermore and as pointed out by my brother, Omosun, J . C.A., the trial conducted as to the amount allegedly overpaid to the respondent appeared to me quite unnecessary. I agree with Mr. Izundu in his submission before us that the learned trial Judge “proceeded in his judgment as if the respondent stood trial on a charge of stealing before him.” Learned counsel further pointed out the crucial issue raised was the nature of the complaint made by the appellant AND NOT the charge framed by the police. Once a complaint is made without more, the police is statutorily bound after investigation to frame or not to A frame a charge.


The latest authority in the case of malicious prosecution is the case of Chief Balogun v. Aihaji Amubikanhun (1989)3 N.W.L.R. (Pt. 107) p.18. In delivering the judgment of the Supreme Court, Belgore, J.S.C., said:


“In an action for malicious prosecution, the plaintiff must plead and show by evidence that he 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. Secondly as a result of the prosecution aforementioned the plaintiff was discharged and acquitted, in short that the prosecution was determined in the plaintiff’s favour. Thirdly, the plaintiff must plead and satisfy the court by evidence that the prosecution by the defendant was completely without reasonable and probable cause. Finally that the prosecution was as a result of malice by the defendant against the plaintiff. All the four elements above must be present for successful action for malicious prosecution, and the onus is always on the plaintiff to prove each and every one of them.”


In this case on appeal not all these four conditions are present and neither were they all proved. On the authority of this case alone the appeal is bound to succeed.


Banks will generally be at a disadvantage if after discovery of overpayment to customers they cannot ask the customers or report such a loss to the police for fear of being sued for malicious prosecution. Such a course will cripple commercial transactions. A calm view of the entire evidence before the lower court irresistibly pointed to an innocuous report of an actual overpayment of money. This cannot amount to a malicious prosecution when the police decided to prosecute.


I will therefore, for the fuller reasons and the unanswerable points of law fully discussed by my brother, Omosun, J.C.A., come to the same conclusion. I will also allow the appeal and make the same order as to costs.


ONU, J.C.A.: Having been privileged to read in draft the lead judgment of my learned brother, Omosun, J.C.A., just delivered, I entirely agree with his reasoning and conclusion. I will also allow the appeal and with it, the consequential orders made therein.


Appeal allowed.


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