IN THE SUPREME COURT OF NIGERIA
On Thursday, the 23rd day of May 1963
SAMUEL ATUGBUE ........................................................................................... APPELLANT
1. OKWUEGBUNAM CHIME
2. SYLVENUS ONYIA (for himself and as representing the Umuabi Improvement Union) ......................................................................................... RESPONDENTS
Appeal by plaintiff:
The plaintiff, who was prosecuted on a charge of stealing property belonging to the defendants, was acquitted, and then he sued them claiming damages for malicious prosecution. One issue on the pleadings was whether it was the defendants who had set the law in motion. It was not a private prosecution, and the trial Judge took the view that the plaintiff must first establish the issue that the defendants had been the prosecutors before he would be permitted to call evidence on the other issues (viz malice and quantum of damages) and, rejecting all evidence which did not bear on the issue whether the defendants had been the prosecutors, refused to grant an adjournment for further evidence to supplement the police file on the initiation of the proceedings, closed the case, and asked Counsel for the plaintiff to address the court to show that a case had been made out for answer, but Counsel declined to argue; the trial Judge was of the opinion that the plaintiff had not begun to make out a case and dismissed the claim.
The appeal was on the procedure adopted by the trial Judge.
The trial Judge should have allowed the plaintiff to call the whole of his evidence before deciding any of the issues of fact: High Court Rules, 1955 (E.R.) Order 42.
(1) The judge may, in an exceptional case, stop the case after the plaintiff has closed his case and addressed the court; normally the judge should not give a ruling at that stage unless the other party submits that there is no case to answer and also states that he does not intend to call evidence.
Aduke Aiyelabola (1942) 8 W.A.C.A. 43, at 45.
Tandoh v. C.F.A.O. (1944) 10 W.A.C.A. 186.
(2) A judge should not except with the, agreement of the parties, and then only if good cause for it is shown, isolate a single issue of fact and try it apart from the rest of the case,
Rotimi v. Adegunle (1959) 4 FSC 19.
Appeal allowed: order for re-trial by another judge.
Other cases cited:-
Inneh v. Aruegbon (1952) 14 W.A.C.A.73; Winsdor Refrigerator Company Limited v. Branch Nominees Limited  Ch. 375 (Lord Evershed at 382, 396.)/
(Editor's Note: for an instance of the trial of a preliminary issue by consent see Bell Houses Limited v. City Wall Properties Limited  3 W.L.R. 1065)
APPEAL from the High Court of Eastern Nigeria.
A. Obi Okoye for the Appellant.
P. Nnaemeka Agu for the Respondents.
BRETT, F.J.:-This is an appeal by the plaintiff from the decision of the High Court of Eastern Nigeria dismissing his claim for damages for malicious prosecution. The appeal turns not on the merits of the case but on the procedure adopted at the court of trial. As regards that procedure, the appellant does not challenge the accuracy of the record, so far as it goes, but he has lodged an affidavit supplementing it in various respects, and as no counter affidavit has been lodged it must be taken that for the purposes of this appeal the respondents accept the correctness of the appellant's affidavit.
It was common ground on the pleadings that the appellant had been tried and convicted in the Magistrate's Court, Enugu, on a charge of stealing property belonging to the respondents, and that the conviction was set aside by the High Court on appeal. The questions in issue on the pleadings, in addition to the quantum of damages, were whether the respondents were the persons responsible for setting the law in motion against the appellant and, if so, whether they acted maliciously. At the trial the records of the proceedings in the magistrate's court and the High Court were put in by consent before any oral evidence was taken. These show that Crown Counsel appeared for the prosecution in both courts, and it would appear that the judge formed the view that prima facie the respondents had not been responsible for setting the law in motion. At all events, he asked Mr Obi Okoye, Counsel for the plaintiff, whether it was alleged that the prosecution was a private one, and when Counsel said that it was not he told him that he must first establish that the defendants had been the prosecutors before he would be permitted to call evidence on the other issues. Counsel protested, but was over-ruled, and all evidence not bearing on that particular issue was rejected by the judge.
Five witnesses were called for the plaintiff, and one of them, who gave evidence on subpoena, produced the police file dealing with the initiation of the criminal proceedings. This had certain unexpected and unexplained omissions, and Counsel applied for an adjournment to enable him to trace and call a police officer who could give evidence to supply those omissions. An adjournment was refused, and the judge recorded as follows:-
"Case closed, apart from evidence on question of damages. Okoye is asked by court to show how a case is made out for defendants to answer. Okoye says he does not wish to argue at this stage."
The judge then proceeded, without calling on Counsel for the defendants, to write and deliver a "Ruling", in which he held that the plaintiff "has not even begun to make out a case", and dismissed the claim. The plaintiff has appealed.
The judge may well have been right in thinking that the burden on the plaintiff was a heavy one, but that it was not incapable of being discharged is shown by Inneh v. Aruegbon (1952) 14 W.A.C.A. 73. Counsel have not been heard on the merits of the case either in the High Court or in this Court, and as in my view the case will have to be retried I express no opinion on the correctness of the judge's ruling on the evidence before him. It will be enough to say that the procedure adopted was not authorised by law, and that Mr Okoye, who had at no time acquiesced in it, was fully entitled to decline to address the court before his entire case had been closed. The proper course would have been to allow the plaintiff to call the whole of his evidence before deciding any of the issues of fact. In Windsor Refrigerator Company Limited v. Branch Nominees Limited  Ch. 375, Lord Evershed, M.R. expressed the view that "the procedure by a preliminary point of law is in general only satisfactory when whichever way it is decided it is conclusive of the whole matter", and there are, in the ordinary case, objections of at least equal force to this manner of dealing with issues of fact, which in Eastern Nigeria should be tried in the manner laid down in Order XLII of the High Court Rules, 1955. The party beginning should be allowed to conclude his evidence. Once he has done so, it is open to the other party to submit that there is no case for him to answer, in which case the judge should decline to give a ruling at that stage unless the party states that he does not intend, in any event, to call evidence: Tandoh v. C.F.A.O. (1944) 10 W.A.C.A. 186. In an exceptional case "it cannot be open to doubt that where a plaintiff himself has shown that he has no case a judge trying a case as judge and jury is entitled to stop the case after the plaintiff has closed his case and addressed the court": Aduke v. Aiyelabola (1942) 8 W.A.C.A. 43. What the judge should not do except with the agreement of the parties, and then only if good cause for it is shown, is to isolate a single issue of fact and try it apart from the rest of the case It may appear on occasion, as no doubt it did to the trial Judge in this case, that time will be saved by taking such a course, but in ordinary circumstances, as Lord Evershed said in the Windsor Refrigerator case, "the shortest cut so attempted inevitably turns out to be the longest way round", and even if the judge forms the view at an early stage that the plaintiff's case contains some fatal weakness, he should not dismiss it without having heard the whole of it. In Rotimi v. Adegunle (1959) 4 FSC 19, an attempt to expedite matters by trying a preliminary issue of fact led to the parties having to incur the expense and delay of a further trial, and the same must happen in this case.
I would allow the appeal, set aside the judgment of the High Court and remit the case to the High Court for trial de novo by another judge. Though the respondent was not responsible for the course adopted in the court below, he tried to uphold the court's decision, and the appellant must have costs of the appeal assessed at 46 guineas. Costs of the first hearing in the High Court should be costs in the cause.
TAYLOR, F.J.:- I concur.
BAIRAMIAN, F.J.:- I concur