IMOH v. UNION BANK & ANOR (2021)

IMOH v. UNION BANK & ANOR

(2021)LCN/15099(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, March 05, 2021

CA/LAG/CV/155/2020

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

CHIEF NELSON IMOH (Practicing Under The Name And Style Of NELSON & NELSON CHAMBERS) APPELANT(S)

And

1. UNION BANK OF NIGERIA PLC 2. JUMOKE LAMBO (MRS) RESPONDENT(S)

RATIO

DEFINITION OF LIBEL

Libel is defined as a statement in written form which causes a person to be exposed to hatred, ridicule or contempt that is to be shunned or avoided and to be lowered in the estimation of right-thinking people in the society. Or to be disparaged in the persons profession or trade. See: GUARDIAN NEWSPAPER LTD & ANOR V. AJEH (2011) 4 S.C. {Pt. II} 69 at 82; SKYE BANK PLC V. AKINPELU & ANOR (2010) 3 S.C. {Pt. II} 29 at 54. PER BITRUS GYARAZAMA SANGA, J.C.A.

ESSENTIAL INGREDIENTS OF LIBEL

In GUARDIAN NEWSPAPER LTD & ANOR V. REV. PASTOR AJEH (2011) LPELR – 1343 (SC), the apex Court, per RHODES-VIVOUR, J.S.C. set out the essential ingredients of libel as: 1. The words complained of must have been written. 2. The publication must be false. 3. The words must be defamatory or convey defamatory imputation. 4. The words must refer to the Plaintiff. 5. It must be the Defendant who published the words. 6. The onus is on the plaintiff to prove he was the one referred to in the alleged libel. See: OGBONNAYA V. FIRST BANK OF NIGERIA PLC (2015) LPELR – 24731 (CA) per IYIZOBA, J.C.A. PER BITRUS GYARAZAMA SANGA, J.C.A.

IMPORTANCE OF PUBLICATION OF DEFAMATORY MATTER IN AN ACTION FOR LIBEL

… in A.I.C. LTD V. PIVOT ENGINEERING COMPANY LTD & ANOR (2015) LPELR – 25857 (CA) per IYIZOBA, J.C.A where the learned Law Lord held thus: – “Publication in libel cases is the making known of the defamatory matter to some other person other than the person about whom it is written. In the case of Fawehinmi V. Akilu (1994) 6 NWLR {Pt. 350} 387 at 458, it was held that “… an action for libel must fail if publication of defamatory matter is not proved. This proof must be given by admissible evidence as it is the publication that gives a cause of action. The material part of the cause of action in libel is not the writing but the publication of the libel….” PER BITRUS GYARAZAMA SANGA, J.C.A.

IMPORTANCE OF PROOF OF PUBLICATION OF THE ALLEGED DEFAMATORY MATERIAL , IN AN ACTION FOR LIBEL

The apex Court held in M.T. MAMMAN V. A.A. SALAUDEEN (2005) LPELR – 1833 (SC) per ONNOGHEN J.S.C. (as he then was) that: – “The essential part of the cause of action in libel is publication of the libelous matter complained of, not in the writing of the libelous matter. That being the case, it is trite law that an action for libel cannot be sustained without proof of publication…” See: CHIEF O.N. NSIRIM V. ALERUCHI ETCHESON NSIRIM (2002) LPELR – 8060 (SC). Therefore, mere writing of a libelous material without publication is not actionable per se. It is absolutely essential that for an action in libel to succeed there must be prove of publication. In CHIEF IKANG EDET OKON V. ETINYIN BASSEY BASSEY OBO (2013) LPELR – 20447 (CA), this Court per NDUKWE-ANYAWU, J.C.A. held thus: – “Publication is the live wire of an action for libel. Publication of an alleged defamatory word is fundamental element that must be established in an action for libel. Therefore, it is sufficient if it is proved that publication of the alleged defamatory material was made to at least one person other than the Claimant in such a manner that it would convey the defamatory meaning and that the person acquainted with the Claimant understood it to refer to the claimant.” See also CHIEF K. O. OKPANUM V. MR. REMY ODINAMBA & ORS (2017) LPELR – 42678 (CA); MATHIAS OKO OFFOBOCHE V. OGOJA LOCAL GOVERNMENT & ANOR (2001) LPELR – 2265 (SC). PER BITRUS GYARAZAMA SANGA, J.C.A.

BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): The Appellant as Claimant filed Suit No. LD/ADR/929/2017 before the High Court of Lagos State, Lagos Judicial Division, K. O. ALOGBA C.J., presiding against the Respondents as Defendants seeking for the following reliefs:-
1. The sum of N5,000,000,000.00 (Five billion naira only) being damages for LIBEL as contained in the Defendants’ letter dated the 1st day of June, 2016 authored the 2nd Defendant, for and on behalf of the 1st Defendant to the members of the Nigerian Bar Association, Disciplinary Committee, National Headquarters, Abuja, orchestrated and widely published by the Defendants against the Claimant, which publication portrayed the Claimant as being unethical, and indulging in unprofessional conducts and behaviour unbecoming of a Legal Practitioner.
2. AN ORDER OF INJUNCTION RESTRAINING the Defendants, their agents, privies, representatives, servants, assigns or whomsoever acting for them and in whichever capacity from causing to be authored, published and circulated such libelous and or further libelous materials against the Claimant and or further causing the

Claimant to be so portrayed as being unethical, and indulging in unprofessional conducts and behaviour unbecoming of a Legal Practitioner.
3. Cost of this action.

This suit was commenced via a Writ of Summons dated 29th December, 2016 and a Statement of Claim containing 46 paragraphs dated 27th December, 2016. (pages 1 to 20 of the Records).

The 2nd Defendant filed a memorandum of conditional appearance on 20th April, 2017 while the memorandum of conditional appearance by the 1st Respondent was filed on 7th April, 2017. However, the Defendants filed a joint Statement of Defence containing 36 paragraphs on 25th May, 2017. (Pages 283 to 298 of the Records). The Claimant filed a Reply to the Defendants’ Statement of Defence containing 25 paragraphs on 20th October, 2017 (pages 325 to 337 of the Records). The Claimant filed a Witness Statement on Oath on 29th October, 2016. (pages 38 to 55 of the Records). He also filed Further Witness Statement on Oath dated 23rd October, 2017. (pages 338 to 350 of the Records). The Defendants’ sole witness, one Olaleye Fayese a legal practitioner in the employment of the 1st Defendant also filed a

witness statement on oath dated 25th May, 2017. (pages 300 to 309 of the Records).

Pleadings having been filed and exchanged, the matter went to trial. On 30/10/2018 the Claimant testified in prosecuting his case and closed his case. During his testimony in chief and after adopting his two witnesses’ statements on oath he tendered the following documents in evidence:-
1. Claimant’s Witness Statement on Oath dated 23/10/2017 – Exhibit E.I.C (1)
2. Claimant’s Witness Statement on Oath dated 29/12/2016
– Exhibit E.I.C (2).
3. Writ of Summons in Suit No. AK/275/2012 dated 09/08/2012 – Exhibit C1.
4. Judgment dated 5/6/2014 in Suit No. HOK/6/2013 – Exhibit C2.
5. Enrolled Order dated 7/11/2014 in Suit No. HOK/6/2013 – Exhibit C3.
6. Motion on Notice dated 11/11/2014 in Suit No. HOK/6/2013 – Exhibit C3A.
7. Affidavits of Service (A – N) in Suit No. HOK/6/ 2013 – Exhibit C4.
8. Enrolled Order dated 27/11/2014 in Suit No. HOK/6/2013 – Exhibit C5.
9. Claimant’s declaration dated 3rd December, 2015/Attached Letter dated 2/12/2015 in Suit

No. HOK/6/2013 – Exhibit C6A & B.
10. Motion Exparté dated 3/12/2015 in Suit No. LD/067NRJ/15 – Exhibit C7.
11. Enrolled Order dated 15/2/2015 in Suit No. LD/067NRJ/15 – Exhibit C8.
12. LASJ Deputy Sherriff Letter – DS/VOL2/0026/ 2019 – Exhibit C9.
13. Photocopies of (3) cheques – Exhibit C10.
14. Writ of Attachment LD/067/NRJ-07/04/2015 – Exhibit C11.
15. Claimant’s Letter dated 18/4/2016 – Exhibit C12.
16. Claimant’s Letter dated 18/4/2016 to Zenith Bank Plc – Exhibit C13.
17. Claimant’s Letter dated 12/07/2016 to UBA Plc – Exhibit C14.
18. Ruling dated 31/05/2016 is Suit No. LD/067/NRJ/ 2015 – Exhibit C15.
19. Notice of Appeal in Suit No. LD/067/NRJ/2015 – Exhibit C16.
20. Notice of Appeal in Suit No. LD/067/NRJ/2015 dated 6/6/2016 – Exhibit C17.
21. Motion on Notice Suit No. LD/067/NRJ/2015 dated 1/6/2016 – Exhibit C18.
22. UBN Letter to NBA dated 01/06/2016 – Exhibit C19.
23. Claimant’s appointment letter dated 20/03/2012 – Exhibit C20.

O.K.O.P.D. Association letter dated 2/7/2016 – Exhibit C21.
25. NBA Letter dated 02/06/2016 to Claimant – Exhibit C22.
26. Claimant’s letter dated 06/06/2016 to UBN Plc – Exhibit C23.
27. Lexavier Partners Letter dated 18/04/2016 to EFCC – Exhibit C24.
28. EFCC-Bail Conditions dated 29/06/2016 – Exhibit C25.
29. Claimant’s Letter dated 14/06/2016 to Sec. NBA – Exhibit C26.
30. Claimant’s Witness Statement on Oath dated 17/06/2016/with attachment – Exhibit C27.
The witness was then cross-examined.

On 29/01/2019, D.W.1 (Mr. Olaleye Fayose) entered the witness box. He adopted his written deposition on oath and tendered the following documents in evidence: –
1. Written Statement on Oath of CW1 dated 25/05/2017 – Exhibit D1.
2. Lexavier Partners Letter dated 19/04/2016 – Exhibit D2.
3. Photocopy of Report of EFCC dated 10/10/2016 marked Exhibit D3. Rejected.

The witness was then cross-examined. (The entire proceedings of the trial Court is at pages 438 to 446 of the Records). On 4th May, 2019, learned counsel adopted their respective written

addresses. Judgment was delivered on 1st August, 2019. (The entire judgment is at pages 405 to 426 of the records).

In his judgment after evaluating the documentary and oral evidence by the parties, the learned trial Judge held, inter alia, as follows: –
“The gravamen of this case is the contention by the Claimant that the petition dated 1st June, 2016 written by the Defendants to the Nigerian Bar Association/Legal Practitioners Disciplinary Committee, and the other dated 18th April, 2016 to the Economic and Financial Crimes Commission are defamatory of him……”
“The issue that therefore must be determined in his case, which is the appropriate form to determine an action in defamation; qua libel here.
It is trite that in determining where a claim for libel should be tried, what the Court considers is the venue or place of publication and not where the Defendant resides. See REF-DAIRO Vs. UBN PLC – 2007, 7 SC {PT 11} 97 at 128 – 130 and 158 – 160, EZOMO Vs. OYAKHIRE 1985, 2 SC 260, EGBUE Vs. ARAKA 1988. 7 SC {PT 11} 98.
In this case and as admitted by the Claimant himself, the petition – the

offending publication which he alleged is libelous was written to and delivered to the President of the Nigerian Bar Association and the Legal Practitioners Disciplinary Committee thereof in Abuja. Accordingly, therefore even if it is found that there was publication of the said defamatory petition – that was or took place in Abuja. It is therefore elementary and consequentially follows that only a Court of competent jurisdiction in Abuja i.e. the Federal Capital Territory High Court is the competent forum litigate for his action.
Therefore, the bringing of this case for adjudication in this Court is legally wrong and incompetent and thus robs this Court of jurisdiction to adjudicate the same. It is trite that parties cannot of their own volition and or by their own agreement confer jurisdiction on a Court, which does not have jurisdiction in law – whether subject-matter and or territorial jurisdiction to adjudicate their case….”

As to whether there was publication of the petition as to ground a competent action in defamation, the learned trial Judge held thus: –
“It is noteworthy that the Claimant failed totally and

woefully to state any one person outside of the two Defendants herein and or in the Nigerian Bar Association – (apart from the President) to whom it was addressed, and or in the Legal Practitioners Disciplinary Committee apart from the members thereof – who read the said petition. He merely stated so but failed to name any such third party (stricto sensu) who got to read the petition.
Besides, and more importantly too, Learned Claimant’s Counsel was totally misconceived as to the proper meaning of their party for purposes of publication in defamation matter. That must be a person who is not the writer of the alleged defamatory material or the one to whom it is addressed….
Accordingly, therefore the Claimant failed to prove also that there was publication of the alleged libelous material to any third party in this case and afortiori, that completely removed the bottom off the competence of his cause of action in defamation rendering him without any cause of action therein; and consequently robbing this Court of jurisdiction to adjudicate same. For all the above reasons, this case lacks competence and is hereby struck out for want of jurisdiction.”

This decision irked the Claimant. He filed a Notice of Appeal containing five grounds of appeal dated 11th October, 2019. (pages 427 to 437 of the Records). The Record of Appeal was compiled and transmitted to this Court on 11th February, 2020. The Appellant’s brief filed on 5th June, 2020, it was settled by the Appellant. Learned counsel formulated two issues out of five grounds of appeal as follows: –
1. Whether in the peculiar circumstances of the law and the Appellant’s case, the learned trial Court was right when it struck out the case of the Appellant for want of jurisdiction, when it was apparent on record that the Lagos High Court has the requisite jurisdiction to entertain the claim of the Appellant. (Grounds 1 and 2).
2. Whether the learned trial Court was right when it refused, failed and neglected to grant the claims of the Appellant on libel, and upon the preponderance of evidence at trial in favour of the Appellant. (Grounds 3 and 4).

The Respondents’ brief was prepared by Okechukwu Geoffrey Ezeokoli Esq. It was filed on 14th July, 2020. Learned counsel to the Respondent reframed the

two issues formulated by the Appellant as follows: –
1. Whether the lower Court was right when it held that it lacked jurisdiction to adjudicate over this suit?
2. Whether the lower Court was right when it held that there was no publication of the alleged defamatory material to a third party?

On receipt of the Respondents’ brief, the Appellant filed a Reply Brief on 4th August, 2020 which I will consider in this judgment. I will however adopt the two issues canvassed by the Respondents in this appeal as they are succinctly put. But before I delve into considering the issues canvassed by learned counsel in their respective briefs, I will give a summary of the facts that led to filing this suit.

The Appellant is a Legal Practitioner practicing under the registered name of NELSON & NELSON CHAMBERS whose address is situate at Ritway House, 6th Floor-Penthouse 95 Igbosere Road, Lagos Island Lagos State. The 1st Defendant is a financial institution that carries on the business of financial transaction all over the Federation of Nigeria with its Head Office at Stallion Plaza No. 36 Marina, Lagos. The 2nd Defendant is the Acting Head

Legal Services of the 1st Defendant. The gravamen of the Appellant’s case is that at the instruction of his clients, i.e. Okitipupa Oil Palm Traders Association, he instituted an action in a representative capacity at Akure Division of the Ondo State High Court against the Okitipupa Oil Palm Plc & 1 other seeking for the following reliefs: –
1. A declaration that the Defendants are in breach of the supply of Palm Oil Agreement entered into between the Claimants and the first defendant under the control and management of the 2nd defendant.
2. The sum of N55,456,568.00 as special damages and being outstanding sum due to the plaintiffs from the defendants for the supply of Palm Oil, and for which the defendants has refused to supply nor refund to the plaintiffs, but instead kept to their use.
3. Interest in the sum N54,105,621,00. 21% per annum from 13/11/2008 till judgment and final liquidation.
4. N100,000,000.00 Damages for breach of contract of supply of Palm Oil committed against the plaintiffs by the defendants.
5. The sum of N5,000,000.00 being Solicitors fee.
6. Cost of this action. (page 62 of the Records).

The matter went to hearing and in a considered judgment delivered on 5th June, 2014 by Yemi Fasanmi J., the lower Court issued the following orders: –
1. A Declaration that the 1st Defendant is in breach of the supply of palm oil agreement entered into between the 1st defendant and the claimants.
2. The sum of N34,441,528.00 (excluding the sum of N2,500,000.00 already paid by the 1st defendant during proceedings) being the outstanding sum due to the claimants for the supply of palm oil which the 1st defendant failed and/or neglected to supply nor refund is awarded in favour of the Claimants against the 1st defendant.
3. The Claimants’ claim of interest at 21% per annum from 13/11/2008 is dismissed.
4. Costs is assessed at N250,000.00 in favour of the Claimants against the 1st defendant.
5. Cost is assessed at N50,000.00 against the Claimants in favour of the 2nd defendant.
6. The 1st defendant shall pay interest at 10% per annum on the judgment debt from the date of judgment until final liquidation of same. (The entire judgment is at pages 61 to 103 of the Records.

The Appellant on behalf of his clients, filed a motion ex-parté on 7th November, 2014 for garnishee Order Nisi on some named garnishee, including the 1st Respondent and First Bank Plc. The Order Nisi was granted by the trial Court on the said 7/11/2014. It was served on the 1st Respondent. But the 1st Respondent pleaded that the Garnishee Order Nisi was never served on it. The Appellant swore that it was served on it by one Sina Akinboyega a bailiff of the Ondo State High Court and one Siyan Adogoke (BDM) collected service on behalf of the 1st Respondent. Thereafter the Appellant applied for a Garnishee Order Absolute before Hon. Justice B. F. Adeyeye of the Ondo State High Court on 27th November, 2014. The Order Absolute had mandated the attachment of monies in the account of the judgment debtor. Full judgment sum is N38,574,206.20.

On 3rd December, 2015, the Appellant registered the judgment of the Ondo State High Court at the High Court of Lagos State. He filed a motion exparte praying the said Lagos State High Court to Order the enforcement of the entire judgment sum. On 15th February, 2016, the Lagos State High Court, Coram Candide-Johnson J., heard the motion exparte and

ordered the execution of the judgment of the Ondo State High Court in respect of the monies in the account of the Judgment Debtor with the 1st Respondent. Prior to the issuance of the Writ of Attachment, the Appellant had recovered the sum of N2,667,285.11 from another Garnishee-First Bank of Nigeria Plc. But surprisingly the Appellant proceeded to procure the Writ of Attachment and levied execution on the full judgment sum of N38,574,206.20 against the 1st Respondent without taking into account the sum of N2,667,285.11 recovered from First Bank of Nigeria Plc. I noted that the 1st Respondent on being served with the Garnishee Order Absolute issued by Ondo State High Court conducted a search through their records and discovered that the sum standing to the credit of the judgment debtor in its accounts was N4,128.18 which sum the 1st Respondent sought to pay to the Appellant in compliance with the Garnishee Order Absolute. But the Appellant, by an act of sheer bravado somehow manage to levy execution on the entire judgment sum of N38,574,206.20 despite the sum of N2,667,285.11 earlier recovered from another Garnishee i.e., the First Bank of Nigeria Plc. By some

strange method known only to the Appellant, instead of paying the judgment sum of N38,574,206.20 into the account of the Deputy Sherriff from there to the account of the judgment creditors, the Appellant insisted (within the banking hall of the 1st Respondent) that the entire judgment sum be paid into his account. The 1st Respondent issue four separate bank drafts in favour of Nelson & Nelson Chambers for the full judgment sum.

Thereafter its officers proceeded to Lagos State High Court and obtained a copy of the Order Absolute emanating from the garnishee proceedings in Suit No. HOK/6/2013. Upon a careful scrutiny of the document, they discovered that:
1. The 1st Respondent did not participate in the garnishee proceedings in Suit No. HOK/6/2013 because it was not served with the Garnishee Order Nisi, although the Appellant pleaded that they were duly served through one Siyan Adegoke, an officer of the 1st Respondent.
2. That the Appellant had fraudulently misrepresented the content of the Garnishee Order Absolute to the staff of the 1st Respondent by giving the impression that it encompass the entire judgment sum and not the sum standing to

the credit of the judgment debtor with the 1st Respondent.
3. The Appellant had already recovered part of the judgment sum from another garnishee viz; First Bank of Nigeria Plc to the tune of N2,667,285.11, a fact which was not disclosed to the Lagos State High Court and the 1st Respondent.

The Appellant deposed at paragraph 13 of the claimant’s reply to the Defendant’s Statement of Defence that: –
“… total disclosure of what was left of the judgment sum was clearly deposed to in his Affidavit in Support of the Motion Ex-parte dated 3/12/2015 before Justice Candide-Johnson as enjoined him (sic) at law, as he was not obligated to, nor owe any duty to the Union Bank of such disclosure on the date of the execution of the judgment by the Sheriffs of the Lagos High Court.”

In other words, the Appellant is saying that since he disclosed the balance of the judgment sum in his affidavit in support of the motion exparte, he can go ahead to collect the entire judgment sum from the 1st Respondent. It is based on these facts that the 1st Respondent on the strength of its belief in the tenets of the law which the

Appellant contravened that it wrote a lengthy petition on 1/6/2016 to the President of the Nigerian Bar Association alleging Professional Misconduct and Breach of Rules of Professional Conduct by the Appellant. It also wrote a similar letter on 16/9/2016 to the Economic and Financial Crime Commission. The Appellant instituted this suit against the Respondents claiming inter alia, for Five billion naira for libel. As I stated above, the learned trial Judge struck out the suit for want of jurisdiction.

Issue 1 is:
Whether the lower Court was right when it held that it lacked jurisdiction to adjudicate over this suit?

While arguing this issue, learned counsel to the Appellant submitted that the holding by the learned trial Judge that his Court lacked the requisite jurisdiction to hear and determine this suit at pages 424 – 425 of the Records was a misconception of the law. That in determining whether or not it has the requisite jurisdiction to entertain any matter before it, the only document that the Court must consider is the Statement of Claim. Cited: MUSACONI LTD V. ASPINALL (2013) 14 NWLR {Pt. 1375} 435 at 459 – 460; NNONYE V. ANYICHIE

(2005) 2 NWLR {Pt. 910} 623; A.G. KWARA STATE V. OLAWALE (1993) 1 NWLR {Pt. 272} 645; NDIC V. CBN (2002) 7 NWLR {Pt. 766} 272; ARJAY LTD V. A.M.S. LTD (2003) 7 NWLR {Pt. 820} 577. That in paragraphs 40 and 44 of the Appellant’s Statement of Claim he averred that: –
“40. The Claimants states that upon receipt of the Defendants’ published defamatory letters, through his secretary in chamber on the 2nd day of June, 2016 and conscious of the pathetic falsehood thereon, his law firm Nelson & Nelson Chambers caused a letter dated 6th June, 2016 to be written to the Defendants specifically requesting an apology from the Defendants and for them to retract the defamatory publication. The Claimant shall find and rely on the said letter dated 6/6/16 and as received by the Defendants on 7/6/16”.
“44. The Claimant states that the said publication of the Defendants vide letter dated 1st June, 2016, widely published to the whole world particularly, staff of the NBA, National Headquarters, Abuja members of the Nigerian Bar Association, Disciplinary Committee Abuja the courier company dispatch clerk in Fast-Lane Express

International Ltd Secretary in Nelson & Nelson Chambers and has accordingly lowered his established personal and corporate reputation in the eye of every person, business associates, workers, professional colleagues, business partners thereby entitling him to the requisite and commensurate damages therefrom.”

Learned counsel submitted that the Respondents failed to contradict the pleadings by the Appellant as provided by Order 17 Rules 5(1) and (2) of the High Court of Lagos State (Civil Procedure) Rules, 2019 to the effect that the libelous publication dated 1/6/16 was made to the whole word, published in the NBA website which is accessed and read globally. That the said publication was also received and read by his secretary who handles his mails. That the Respondents did not controvert these averments by the Appellant and are therefore deemed as accepted and the learned trial Judge ought to have found so and act accordingly but he did not. Cited: UGWUANYI V. NICON INS. PLC (2013) 11 NWLR {Pt. 1366} 546 at 504; ADJEKPEMEVOR V. ONAFEKO (2000) FWLR at 1425; FALOBI V. FALOBI (1976) 9 – 10 SC1; UZO V. NNALIMO (2000) FWLR at 1258 (2000) 11

NWLR {Pt. 678} 237; ADEKANYE V. COMPTROLLER OF PRISON (2000) FWLR at 1258 (2000) 12 NWLR {Pt. 682} 568. That the Respondents having participated in the entire proceedings at the trial Court and taken various steps from the beginning to the end without any protest, except in their Final Written Address and at the conclusion of trial waived their rights to complain. That during cross-examination of the Appellant, learned counsel to the Respondents failed to raise a single question to contradict the fact of the publication of Exhibit ‘C19’ Respondents’ libelous letter dated 1/6/16 to the Appellant’s Secretary in Nelson & Nelson Chambers. Cited and quoted Order 17 Rules 5(1) and (2) of the Civil Procedure Rules of Lagos State, 2019, and ALHASSAN V. ISHAKU (2017) All FWLR {Pt. 866} 209 at 265; ADESANYA V. ADERONMU (2000) FWLR {Pt. 15} 2492; ECHI V. NNAMANI (2000) FWLR {Pt. 13} 2159; OGBOGU V. UGWUEGBU (2003) FWLR {Pt. 161} 1825; MAKINDE V. AKINWALE (2000) FWLR {Pt. 25} 1562.

That in ECONOMIDES V. S. THOMOPULOS & CO. LTD. (1956) NSCC 9, the apex Court while holding on when a defendant fail to specifically deny allegation of

publication of a libelous material in a Statement of Claim stated the position of the law thus: –
“Publication having been alleged in the Statement of Claim, and not specifically denied but rather indirectly admitted in the Statement of Defence, it was not necessary for the Plaintiff to call evidence to prove this at the trial.”

That since there is publication of the libelous letter to his Secretary at his office at Lagos, the holding of the lower Court, per K. O. Alogba CJ., that there was no proof of the publication of the libelous letter in Lagos State was given per incuriam and ultra vires the competence of the lower Court. That the learned trial Judge failed to properly evaluate the evidence and the facts of the publication of the said libelous letter to his Secretary who received, opened and read same before bringing the contents of the said letter to his attention. That the fact that the letter was sent to NBA which has a universal and official website where all official correspondences of the NBA are published mean that the said libelous letter was published worldwide and thus the decision by the learned trial Judge that only the

F.C.T. High Court has jurisdiction is not correct. That it is trite law that in determining the proper venue for adjudication of a libelous claim, the Court considers the venue or place of publication in addition to other considerations such as where the Defendant resides. Cited DAIRO V. UBN PLC (2007) 7 S.C. {Pt. 11} 97 at 128 – 130; EZOMO V. OYAKHIRE (1985) NSCC 280, EGBUE V. ARAKA (1988) 19 NSCC 278. Learned counsel urged the Court to resolve this issue in favour of the Appellant.

In his submission while arguing this issue, learned counsel to the Respondents submitted that it is trite law that the essential part of the cause of action in a libel case is publication of the libelous matter complained of not in the writing of the libelous matter. Cited: MAMMAN V. SALAUDEEN (2005) 18 NWLR {Pt. 985} 478 at 509. On the argument by learned counsel to the Appellant that the Respondents failed to controvert the averments in his Statement of Claim that the Petition written to the NBA was “published to the whole word, published in the NBA website and read globally”, learned counsel to the Respondents countered that no such averment is contained

in the entire pleadings by the Appellant. That the purported averment was “smuggled into counsel’s Final Written Address for the first time”. That there was nothing for the Respondents to controvert or admit. That parties are behind by their pleadings and counsels’ final address is not an occasion to plead facts or introduce new evidence. Cited: CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD & ORS V. BASSEY EBONG EKPO (2008) LPELR – 825 (SC).

That the Appellant’s argument is not that the Petition was published on the NBA website, rather that the NBA letter headed paper (by which the NBA notified the Appellant of the Petition against him i.e. Exhibit C22 at page 245 of the Records) had the NBA website address written on it. Thus, what the Appellant is doing is to urge the Court to speculate on what might have happened. That in the same vein, the Appellant is urging this Court to assume that because the NBA phone number is also on the NBA letter headed paper, it means the NBA President might have called the whole world to inform it of the contents of the Petition against the Appellant. Learned counsel

urged the Court to discountenance this ludicrous argument by the Appellant.

That it is trite law that the issue of publication in a defamation case is not one that can be admitted in the absence of evidence by the Claimant. That in AYENI V. ADESINA (2007) 7 NWLR {Pt. 1033} 233 at 261, it was held that the principle of law relating to admissions in civil cases is not applicable to prove publication in libel cases. That this Court, per AGBO, J.C.A. drew a distinction between admission of AUTHORSHIP of a libelous matter and an admission of PUBLICATION of libelous matter. Cited AMUZIE V. ASONYE (2011) 6 NWLR {Pt. 1242} 19. That assuming, without conceding that the Appellant pleaded the existence of such publication on the NBA website, the failure by the Respondent to deny same does not relieve the Appellant of the burden to prove such global publication, either by producing or presenting a copy of the website publication or calling a witness who read the alleged publication on the NBA website. That even the Appellant who testified as CW1 did not state that he saw any of such publication on the NBA website. Learned counsel urged the Court to resolve this issue in favour of the Respondent.

FINDING ON ISSUES 1:
Issue 1 is: –
Whether the lower Court was right when it held that it lacked jurisdiction to adjudicate over this suit?

To answer this issue, it must be noted that this suit was commenced on the basis of libelous publication. Libel is defined as a statement in written form which causes a person to be exposed to hatred, ridicule or contempt that is to be shunned or avoided and to be lowered in the estimation of right-thinking people in the society. Or to be disparaged in the persons profession or trade. See: GUARDIAN NEWSPAPER LTD & ANOR V. AJEH (2011) 4 S.C. {Pt. II} 69 at 82; SKYE BANK PLC V. AKINPELU & ANOR (2010) 3 S.C. {Pt. II} 29 at 54.

The essential elements or ingredients a plaintiff must prove to succeed in an action for libel as pronounced by this Court in CHIEF IKANG EDET OKON V. ETINYIN BASSEY OBO (2013) LPELR – 20447 (CA) per NDUKWE-ANYANWU, J.C.A. at page 21 are as follows: –
“Publication is the live wire of an action in libel. Publication of an alleged defamatory word is a fundamental element that must be established in an action for libel.

Therefore, it is sufficient if it is proved that publication of the alleged defamatory material was made to at least one person other than the Claimant in such a manner that it would convey the defamatory meaning and that the person acquainted with the Claimant understood it to refer to the Claimant.”
By this holding, it is obvious that a cardinal principle of law of defamation is that a person’s reputation is not based on the opinion of himself (since most people have a high opinion of themselves sometimes beyond what they really are), it is rather the estimation in which other people hold him. Therefore, there must be publication of the libelous matter or words to a third party. Thus, a person commits the tort of defamation when he publishes to a third person words or matter containing an untrue imputation against the reputation of another. It is the publication of defamatory words injurious to the Claimant that gives rise to a prima facie cause of action. Therefore, the statement of claim of the Claimant must, in principle, show that the words were actually published on a stated occasion to a named person or persons, other that the Claimant.

In BASORUN V. OGUNLEWE (2000) 11 NWLR {Pt. 640} 223 at page 238, this Court per ADEREMI, J.C.A. (as he then was) held thus: –
“Publication of a defamatory statement is an essential element of the cause of action in libel cases… And publication is the act of making the defamatory statement known to any person other than the plaintiff himself. Of course, publication must be proved by credible evidence.”
See ALHAJI AMINU SULEIMAN V. ALHAJI TUKUR ADAMU (2016) LPELR-40316 (CA) per SANKEY, J.C.A.

The question to be answered in resolving this issue is whether the Petition to the President of the Nigerian Bar Association by the Respondents on the shenanigans of the Appellant in respect of the role he played in obtaining garnishee Order Nisi which was later made Absolute vide a motion on notice dated 27/11/2014 mandating the attachment of the monies in the account of the judgment debtor with the 1st Respondent (which the Appellant converted to the full judgment sum of N38,574,206.20) amounts to a libelous publication. It is also noted that the Appellant had earlier garnisheed the account of the judgment debtor with the First Bank of

Nigeria Plc to the tune of N2,667,285.11 in execution of the said judgment sum which he failed and/or neglected to bring to the notice of Candide-Johnson J., while urging him to issue an Order of execution of the judgment sum. (pages 321 to 324 of the Records).

To answer the question I asked above, it is clear as crystal that merely writing a petition to the NBA does not amount to libel per se. There must be prove of publication of the libelous statement. Not only that, the Claimant must prove and call evidence of at least one person, apart from himself, who read the libelous publication and it lowered the esteem with which he held the Claimant. In other words, publication must be proved by credible evidence as held by this Court in BASORUN V. OGUNLEWE (Supra). The Appellant did not call a single witness to testify in support of his claim before the lower Court that the Petition to the President of the NBA by the Respondents in respect of his activities is libelous. In GUARDIAN NEWSPAPER LTD & ANOR V. REV. PASTOR AJEH (2011) LPELR – 1343 (SC), the apex Court, per RHODES-VIVOUR, J.S.C. set out the essential ingredients of libel as:

The words complained of must have been written.
2. The publication must be false.
3. The words must be defamatory or convey defamatory imputation.
4. The words must refer to the Plaintiff.
5. It must be the Defendant who published the words.
6. The onus is on the plaintiff to prove he was the one referred to in the alleged libel.
See: OGBONNAYA V. FIRST BANK OF NIGERIA PLC (2015) LPELR – 24731 (CA) per IYIZOBA, J.C.A.
The next question that arises is whether an action for libel can be sustained without proof of publication. I found the answer in A.I.C. LTD V. PIVOT ENGINEERING COMPANY LTD & ANOR (2015) LPELR – 25857 (CA) per IYIZOBA, J.C.A where the learned Law Lord held thus: –
“Publication in libel cases is the making known of the defamatory matter to some other person other than the person about whom it is written. In the case of Fawehinmi V. Akilu (1994) 6 NWLR {Pt. 350} 387 at 458, it was held that “… an action for libel must fail if publication of defamatory matter is not proved. This proof must be given by admissible evidence as it is the publication that gives a cause of action.

The material part of the cause of action in libel is not the writing but the publication of the libel….”
In view of the failure of the Appellant to call oral evidence from any of the people he identified (even his Secretary in Chambers), I am of the firm view that there was no publication of the alleged defamatory words contained in the Respondents’ Petition to the President of the NBA and the Legal Practitioners Disciplinary Committee. See: HON. JUSTICE JAMES OMO-AGEGE (Rtd) V. JOHN OGHOJAFOR & ORS (2010) LPELR – 4775 (CA) per GUMEL, J.C.A.

Now I will consider whether the learned trial Judge was right when he held that he lacked the jurisdiction to adjudicate over this suit. To answer this question, I refer to the holding by the learned trial Judge at page 426 of the Records where he held thus: –
“Accordingly, therefore the Claimant failed to prove also that there was publication of the alleged libelous material to any party in this case and afortiori that completely removed the bottom off the competence of his cause of action in defamation rendering him without any cause of action therein; and consequently

robbing this Court of jurisdiction to adjudicate same. For all the above reasons, this case lacks competence and is hereby struck out for want of jurisdiction.”

Upon considering my finding above and the holding by this Court and the apex Court, it is my holding that the learned trial Judge was on terra firma when he struck out this suit for want of jurisdiction. I resolve this issue against the Appellant.

Issue 2 is:
Whether the lower Court was right when it held that there was no publication of the alleged defamatory material to a third party?

Pursuant to my finding in issue 1 above, the principles of law and judicial authorities I cited, quoted and relied upon and my finding that the learned trial Judge was right in holding that his Court does not possess the requisite jurisdiction to hear and determine this suit and his decision to strike out same for want of jurisdiction, then the obvious answer to this issue is in the affirmative. The lower Court was right when it held that there was no publication of the alleged defamatory material to a third party. The law is trite that publication is the sine qua non in proof of libel.

The apex Court held in M.T. MAMMAN V. A.A. SALAUDEEN (2005) LPELR – 1833 (SC) per ONNOGHEN J.S.C. (as he then was) that: –
“The essential part of the cause of action in libel is publication of the libelous matter complained of, not in the writing of the libelous matter. That being the case, it is trite law that an action for libel cannot be sustained without proof of publication…”
See: CHIEF O.N. NSIRIM V. ALERUCHI ETCHESON NSIRIM (2002) LPELR – 8060 (SC).
Therefore, mere writing of a libelous material without publication is not actionable per se. It is absolutely essential that for an action in libel to succeed there must be prove of publication. In CHIEF IKANG EDET OKON V. ETINYIN BASSEY BASSEY OBO (2013) LPELR – 20447 (CA), this Court per NDUKWE-ANYAWU, J.C.A. held thus: –
“Publication is the live wire of an action for libel. Publication of an alleged defamatory word is fundamental element that must be established in an action for libel. Therefore, it is sufficient if it is proved that publication of the alleged defamatory material was made to at least one person other than the Claimant in such a

manner that it would convey the defamatory meaning and that the person acquainted with the Claimant understood it to refer to the claimant.”
See also CHIEF K. O. OKPANUM V. MR. REMY ODINAMBA & ORS (2017) LPELR – 42678 (CA); MATHIAS OKO OFFOBOCHE V. OGOJA LOCAL GOVERNMENT & ANOR (2001) LPELR – 2265 (SC).

Upon considering the significance of publication in proving the tort of libel, it is beyond doubt that the Appellant did not prove that the Respondents published a libelous material against him. The Appellant failed to call even one witness to testify on his behalf that he read the Petition written by the Respondents to the President of the Nigeria Bar Association against the Appellant and that it conveyed defamatory meaning. I resolve this issue in favour of the Respondents.

Sequel to my finding on the two issues canvassed by the parties in favour of the Respondents, it is my finding that this appeal is bereft of merit. It is hereby dismissed. The decision by the lower Court in its judgment delivered on 1st August, 2019 in Suit No. LD/ADR/929/2017 is affirmed by me. There shall be no order as to cost, parties to bear their respective costs.

CHIDI NWAOMA UWA, J.C.A.: I read in advance the judgment delivered by my learned brother, BITRUS G. SANGA, J.C.A. I agree with my learned brother that the appeal lacks merit, I dismiss same for the same reasons given by my learned brother in the leading judgment, I have nothing to add. I abide by the order made as to costs.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I was privilege to read the draft of the judgment just delivered by my noble Lord BITRUS GYARAZAMA SANGA, JCA. I am in full agreement with the reasoning and conclusion therein. I have nothing more useful to add. I abide by the consequential orders (cost inclusive).

Appearances:

ONWUKWE, ESQ. with him, K. I. MARCUS, ESQ. For Appellant(s)

G. EZEOKOLI, ESQ. For Respondent(s)