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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.