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(2018) LPELR-45082(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 18th day of July, 2018


Before Their Lordships

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria




MRS. CHINENYA OKOLIE - Respondent(s)

Other Citations

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This appeal borders on Civil Procedure.
This appeal is against the decision of the High Court of Anambra State sitting in Onitsha, Coram: Chudi Nwankwor, J. delivered on the 10th September, 2013 in suit No. 0/248/2012 striking out the said suit on account of incompetence. The appellant was the plaintiff at the High Court.
The facts of the case is that the respondent on or about the 15th April, 2005 made a false and malicious complaint against him (appellant) at Okpoko Police Station Ogbaru, Anambra State that he maliciously and unlawfully damaged the wall and building of her (respondent's) store at Ogbaru Main market Okpoko. On the basis of the complaint, the appellant was arrested by the police and later charged to the Chief Magistrates Court, Atani Ogbaru, Anambra State on a one count charge of malicious and unlawful damage to the respondent's property in charge No. MGB/82C/2005: COP Vs. Prince Chigozie Uba. After two witnesses had testified for the prosecution at the Chief Magistrate Court, the complainant the respondent on appeal, lost interest in the case and stopped going to Court. In the month of September 2006, respondent's counsel informed the Court that he saw no reason why the appellant should continue to be dragged about whereas the respondent did not appear for the case as the complainant. The Magistrate, on the said date, on the strength of respondent's counsel's application, dismissed the charge against the appellant. The appellant as a result approached the High Court of Anambra State vide the Writ of Summons and the Statement of Claim filed on the 14th September, 2012.  
The Respondent on her part denied the claim and maintained that on the 14th April, 2005, the Appellant, invaded the construction site of her stall No. Plan/B1/11513 at Ogbaru Main Market, Opkoko, and claimed ownership of the said stall. She also claimed that the appellant further threatened to pull down the block work going on thereon if the respondent did not cease further construction on the site. Based on the threat issued by the appellant, the respondent informed some of the executive of that Section of the market. The next morning, being the 15th April, 2005, the said stall, due to the threat of the Appellant, was destroyed hence the (respondent) reported the matter to the Police. Respondent claimed that the report to the Police was not false or made out of malice as her shop was actually maliciously and unlawfully destroyed. Respondent maintained that the decision to frame a charge against the appellant for malicious damage was entirely the decision of the Police even though the charge relate to the malicious damage of respondent's shop. Respondent maintained that the police, duly carried out an independent investigation into the complaint of the respondent devoid of any undue influence from the respondent when it took the decision to arraign the appellant. Respondent further maintain that at the time the case was dismissed at the Magistrate Court, she had lost tract of the case having relocated from Okpoko to Attani due to the activities of Massop members at Okpoko. Respondent further maintain that the charge in MGB/82C/2005 was not determined on the merit but was dismissed for lack of diligent prosecution.

Upon the respondent filing her defence, the case proceeded to trial and witnesses were called by parties on both sides and exhibits were tendered. The High Court at the conclusion of hearing delivered Judgment and dismissed the claim of the appellant in its entirety. Aggrieved by that decision, the Appellant appealed to the Court of Appeal.

The Court determined the appeal on the issues raised by the Respondent and couched as follows:
1. Whether the learned trial judge was not right when he struck out the case of the Appellant for being Statute barred and thus incompetent.
2. Whether the learned trial judge was not right when he held that the Appellant failed to prove the essential ingredients of his claim.

On the whole, the Court found no merit in the appeal and accordingly dismissed same.

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