AIR FRANCE V. GREGORY OKWUDIAFOR
(2010)LCN/4077(CA)
In The Court of Appeal of Nigeria
On Thursday, the 2nd day of December, 2010
CA/PH/81M/2006
RATIO
PLEADINGS: CONSEQUENCE OF THE APPELLANT ABANDONING THEIR PLEADINGS IN RESPECT TO THEIR DENIALS BY FAILING TO CALL WITNESSES IN SUPPORT OF THEIR CASE
In CHIEF SARO MANSON & 3ORS V. HALLIBURTON ENERGY SERVICES LTD & ANOR (2007) 2 NWLR (PT. 1018) 211 on page 232. Thomas JCA held as follows: “Since the appellant is aware that they abandoned their pleadings in respect to their denials by failing to call witness (es), learned counsel should have known the implications of abandonment of pleadings. As a learned counsel, the word “abandonment” is known in law. Black’s Law Dictionary, 6th Edition is very instructive. To abandon means: “To desert, surrender, forsake or cede. The relinquish or give up with intent of never again resuming one’s right or interest… To give up absolutely, to forsake entirely…” From the above cited Supreme Court decisions and consequential effects of abandoning his pleadings by refusal to call witnesses in support of his denials, I am satisfied that the respondents have established that the appellant had clear manifestation of its intention of never returning to prove its defence. It is a clear case by desertion and this amount to surrendering or submission to the trial court’s decision. The resultant decision entered in favour of the respondents by granting the totality of their claims is undisputed decision made with the consent of the appellant by operation of law.” PER T. O. AWOTOYE, J.C.A.
STATUTORY PROVISION: PROVISION OF THE SECTION 241(2)(C) OF THE 1999 CONSTITUTION AS TO WHETHER LEAVE OF THE COURT MUST BE SOUGHT AND OBTAINED BEFORE A PARTY CAN FILE AN APPEAL AGAINST THE A DECISION OF THE FEDERAL HIGH COURT OR HIGH COURT MADE WITH THE CONSENT OF THE PARTIES AS TO COSTS ONLY
Section 241(2)(c) of the 1999 Constitution reads:-“Nothing in this section shall confer any right of appeal. c) Without the leave of the Federal High Court, or a High Court or the Court of Appeal from a decision of the Federal High Court or High court made with the consent of the parties as to costs only.” PER T. O. AWOTOYE, J.C.A.
CONSENT JUDGMENT: WHAT A “CONSENT JUDGMENT” ENTAILS
I am more fortified in this view by the definition of consent judgment is Black’s Law Dictionary 8th Edition which defines it as agreed judgment, a settlement that becomes a court judgment when the judges sanctions it. There must have been an agreement whether express or implied which the court will sanction, See ABDUKARIM v. INCAR NIG. LTD. (1992) 7 NWLR [pt.251] 1 at 15. Some mutuality between the parties is implied in a consent judgment. PER T. O. AWOTOYE, J.C.A.
DISCRETION OF COURT: WHETHER A COURT WILL BE IN ERROR FOR EXERCISING ITS DISCRETION TO CLOSE A CASE WHEN A PARTY FAILS TO APPEAL IN COURT
In A.G. RIVERS STATE V. UDE (2006) 17 NMLR (pt.1008) at 437 the Supreme Court considered a similar case this way. In his leading judgment Ogbuagu JSC said on page 437 “The Court of Appeal was in error to have held that the trial judge was wrong do have exercised his discretion to close the case of the respondents when they failed to appeal in court. When it was the respondents who asked for and were granted an adjournment to appeal in court in a certain date to prosecute their claims before the Court. They refused to appeal in court and had failed to find out what was happening in the court. They simply abandoned their case and accordingly the respondents were not entitled to fresh hearing date under the circumstances. I accordingly resolve the issue in favour of the appellant.” The Appellant abandoned the statement of defence filed on 24/6/2003 with leave of court on 24/6/2003 when he did not call evidence in support. See JACOB A. JOLAYEMI & 2 ORS V. ALHAJI RAJI ALAOYE & ANOR. (2000) 12 NWLR (Pt. 887) 322 on page 340; AJAO V. ALAO (1986) 5 NWLR (Pt. 45) 802, CHIEF S.L. DUROSARO V. T.A.A. AYORINDE (2005) 8 NWLR (Pt. 927) 407 among others. PER T. O. AWOTOYE, J.C.A.
DEFENCE OF QUALIFIED PRIVILEGE : DUTY PLACED ON A DEFENDANT RELYING ON A DEFENCE OF QUALIFIED PRIVILEGE
The defence of qualified privilege is a defence which the defendants must have pleaded and give evidence in support of at the trial court. Unfortunately no such evidence was given at the trial court. Pleadings have no mouth and so cannot speak on their own. See CHIEF S.L. DUROSARO V. T.A.A. AYORINDE (2005) 8 NWLR (Pt. 927) 407 at 425. PER T. O. AWOTOYE, J.C.A.
JUSTICES
M. D. MUHAMMAD (OFR) Justice of The Court of Appeal of Nigeria
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
AIR FRANCE Appellant(s)
AND
GREGORY OKWUDIAFOR Respondent(s)
T. O. AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is a judgment in the appeal filed on 17/1/2006 against the judgment of Rivers State High Court sitting in Port Harcourt delivered on 17/1/2007 in which the learned trial judge awarded damages for libel in the sum of N15 million in favour of the Respondent and against the Appellant.
During the proceedings in the trial court, pleadings were exchanged between the parties. Hearing commenced and both parties were legally represented. The Plaintiff commenced his evidence on oath on 25/6/2003 and on that day he was represented by B. E. I. Nwofor (G. T. Ogara with him) while S. A. Akarede – Lawal represented the defendant. The Plaintiff continued his evidence on 17/11/2003, and 9/2/2004. On 3/5/2004 when the case came up for further hearing Defendants counsel sent a letter to the court asking for an adjournment on the grounds that they intended to have the matter settled out of court. The case was therefore adjourned to 7th and 14th June 2004 for continuation of hearing.
There is nothing on record to show that the case was adjourned to a date suggested by learned counsel for the defendant or if not that hearing notice was served on the defendant on his counsel with regards to subsequent days of adjournment.
Hearing continued on 7/6/2004. On 14/6/2004 which was the next adjournment date the defendant was absent and his counsel was also absent.
The trial court granted the prayers of the Plaintiff’s counsel foreclosing the witness from being cross-examined. The case was subsequently adjourned to 13th and 14th December 2004 without any order that hearing notice be served on the defendants.
On 14/3/2005, PW2 gave evidence. The defendant and his counsel were not in court case was later adjourned to 3rd, 4th and 13th June 2005 for cross-examination and continuation of hearing. No orders that hearing notice be issued and served on the defendants were made.
On 3/5/2005, the defendant and their counsel were absent.
Cross-examination of the PW2 was foreclosed. Plaintiff then closed his case.
Case was then adjourned to 13th and 15th June 2005 for defence. Again no order as to service of hearing notice was issued on the defendant.
Expectedly the defendants and their counsel were absent in court. The case was then adjourned to 15/6/2005. No order that hearing notice be issued on the defendants was made.
On 15/6/2005, learned counsel for the Plaintiff adopted the written address filed in the absence of the defendants and their counsel. Case was then adjourned to 10/10/2005 for judgment.
On 5/10/2005, the 1st defendant filed a motion on notice praying or follows:-
“1. An Order directing the Registry of this court to release to the Plaintiff/applicant’s solicitors, Messrs Usman & Eiema (Solicitors) certified true copies of all court processes and proceedings so far filed or recorded in this court in respect of this case.
2. An Order enlarging the time within which the defendant/applicant may enter appearance in this suit.
3. An Order deeming the Memorandum of Appearance dated October 5, 2005 and filed on the same day and served on October 7, 2005 as properly filed and served.
4. An Order vacating the order of this Honourable court adjourning this case to October 10, 2005 for judgment.
5. An order granting leave to the defendant/applicant to defend this action before judgment.
6. An Order granting extension of time to the defendant/applicant to file its statement of defence in this suit if none had been previously filed.
7. Any other Order or Orders as the Honourable court may deem fit to make in the circumstances.”
The main reason given for the absence in the supporting affidavit was mistake of counsel. Paragraph 7 – 14 of the supporting affidavit sworn to by Chris Iyeikhan a legal practitioner reads thus:-
“7. That one of the counsels who received such instructions was a Lagos based law firm called YOMI OSHIKOYA & CO of No. 322A Ikorodu Road, Maryland, Lagos.
8. That by a letter dated May 27, 2005, a copy of which is annexed herewith and marked Exhibit A, the said law firm made reference only to suit No. PHC/1569/2002 between the plaintiff herein Gregory Okwudiafor v. Air France, pending before the Honourable Justice Okocha of Port Harcourt High Court.
9. That our S.E. Elema then visited Port Harcourt to make enquiries regarding the above named suit.
10. That when our S.E. Elema noticed that the plaintiff counsel is B. E. I. Nwofor SAN who is his personal friend and former classmate; he visited B. E. I Nwofor SANI in ….
11. That by a letter dated July 18, 2005 and addressed to B. E. I. Nwofor SAN a copy of which is attached herewith and marked Exhibit B, our S. E. Elema reiterated the willingness of our law firm to explore out of court settlement of Suit NO. PHC/1569/2002.
12. That unknown to our law firm, a second suit which is Suit No PHC/271/2003, which is before this court is also pending between the plaintiff herein and Air France.
13. That had our law firm been aware of this second suit, out law firm would have also taken necessary steps just as we have done in respect of Suit No. PHC/1569/2002.
14. That the former counsel handling this case Messrs Yomi Oshikoya & Co. never brought to the attention of the defendant/applicant or our law firm the existence of this case as one of the case originally assigned to them to handle.”
The motion on notice was heard and the application was dismissed on 16/1/2006, judgment was subsequently delivered in this case on 17/1/2006.
It is against the said judgment that the Appellant filed 6 grounds of appeal and formulated 4 issues for determination in his brief of argument filed on 16/1/2008.
The 4 issues formulated by the Appellant are:-
“A. Whether the lower court complied with the Rules of Fair hearing in hearing and determining the case in the absence of the Appellant and its Counsel. (Grounds 1 and 2 of the Notice and Grounds of Appeal)
B. Whether the lower court was right in hearing and considering this matter and holding the Appellant liable for libel when the author of the alleged libelous material was not joined as a party to the suit. (Ground 6 of the Notice and Grounds of Appeal).
C. Whether the lower court was right in holding the Appellant liable for libel in respect of alleged publication of a petition written to the Appellant, against the Respondent, by a customer of the Appellant. (Ground 4 and 5 of the Notice and Ground of Appeal).
D. Whether the holding and conclusion of trial by the lower court and award of judgment against the Appellant did not amount to visiting the sins of counsel against the party by the lower court.
(Ground 3 of the Notice and Grounds of Appeal.)”
On issue A the learned counsel for the Appellant submitted that the lower court did not comply with the Rules of fair hearing in hearing and determining the case in the absence of the Appellant and its counsel. He refered to section 36 of the 1999 Constitution and cited MOHEMMED V. HUSSENI (1998) 14 NWLR (Pt. 584) page 109, OHEFOR & ORS. V. A.G. OF ANAMBRA STATE AND OTHERS (1991) 6 NWLR (Pt.200) page 659 and a rest of other cases. He submitted that on this ground of alone, the judgment of the trial court should be set aside.
On issue B he submitted that the trial court was wrong in hearing and considering this case when the author of the alleged libelous material was not joined as a party to the suit. He cited BOHAR v. YUSUF (2003) 14 NWLR (Pt. 841) page 446 and some other cases. He submitted that the presence in court of the author of the alleged libelous material was essential for the purpose of determining whether the making of the said material was justified or libelous.
On issue C learned counsel for Appellant argued that the lower court was wrong in holding the Appellant liable for libel in respect of alleged publication of a petition written to the Appellant against the Respondent by a customer of the Appellant. He contended that the petition, written to the Appellant was covered by the doctrine of qualified privilege. He cited MAMMAN V. SALAUDEEN (2005) 18 NWLR (Pt. 958) page 478.
On issue D, he submitted that the trial court in holding and concluding the trial and giving judgment against the Appellant visited the sins of counsel against the litigant. He added that it amounted to visiting the sin of counsel on the Appellant when the trial court refused to allow the Appellant to defend the case through a new counsel.
He cited DOHERTY V. DOHERTY (1964) ANLR 292 and other cases.
He finally urged the court to set aside the said judgment and order a fresh trial before another judge.
The Respondent in his brief of argument raised the following preliminary objections after giving due notice under the Rules of this court.
“PRELIMINARY OBJECTIONS.
1. The judgment delivered by the court below on 17/1/2006 in suit NO. PHC/271/2003 is a decision made with the consent of the parties. By virtue of section 241 (2) (c) of the Constitution of the Federal Republic of Nigeria, 1999, there is no right of appeal from a decision of the High Court made with the consent of the parties except with the leave of the High Court or of the Court of Appeal which the appellant never obtained.
2. None of the grounds of appeal is in compliance with the provision of Order 6 Rule 2 sub-Rules (2) (3) and (a) of the Court of Appeal Rules, 2007 and are therefore incompetent.
3. Ground 1 of the grounds of appeal is a false and unreasonable ground of appeal.
4. Ground 2, 5 and 6 of the grounds of appeal raise fresh issues not canvassed by the appellant at the trial court and were therefore not adjudicated upon. No leave was obtained by the appellant to canvass or raise such fresh issues in this appellate court.”
On the first preliminary objection learned SAN for the Respondent submitted that there was no right of appeal from a decision of a High Court made with the consent of the parties except with the leave of the High court or of the Court of Appeal. He compared section 241 (2c) of the 1999 Constitution with the provision of section 220 (2c) of the 1979 Constitution of Nigeria which he submitted were in pari-materia. He examined the interpretation placed on section 220(2c) of the 1979 Constitution by the supreme court of Nigeria in ALHAJI SHUAIBU V. ABDOLKEREN V. INCAR (NIG.) LTD (1992) 7 NWLR (Pt. 251) 1 and specifically referred to the dictum of NNAEMEKA – AGU JSC where his Lordship defined a consent judgment as “a judgment or other decision to which a party submits mainly because he cannot resist it. He has nothing to offer against it but he may not necessarily have agreed to it.”
He submitted that by the abandonment of their statement of defence was a deliberate decision not to call evidence to prove the averment and mere averment of facts without proof was not to be regarded as evidence. He cited JACOB A. JOLAYEMI & 2 ORS. V. ALHAJI RAJI ALAOYE & ANOR (2000) 12 NWLR (Pt. 887) 322; MISS CHINYE A.M. EZEANAH V. ALHAJI MAHMOUD I. ATTA (2004) 7 NWLR (Pt. 873) 468 and a list of other cases.
He submitted that when the defendant failed to call any evidence to prove the averments in the statement of defence it was a clear manifestation of their intention of never returning to prove the several averments in their pleadings. He submitted that the defendant failed to challenge the evidence of the Plaintiff and to cross-examine the two witnesses called. He cited PATRICK OFORLETE V. THE STATE (2000) 12 NWLR (Pt.681) page 415; ALHAJI MOHAEMMED SANUSI DAGGASH V. ALJIA FATI IBRAHIM BOLENGE & 6 OTHER (2004) 14 NWLR (Pt. 892) 144 at 240 and some other cases.
He submitted that the Appellant failed to obtain leave of court as required by section 220(2c) of the 1999 Constitution and as such this court was not vested with jurisdiction to entertain the appeal. He cited ALHAJI SHUAIBU ABDULKARIM V. INCER (supra) CONTINENTAL MERCHANT BANK OF NIG LTD V. OSANE CONSTRUCTION NIG. LTD. (1996) 8 NWLR (Pt.466) 379 and other cases.
ON THE SECOND ISSUE
Learned senior counsel submitted that the grounds of the appeal contained in the Notice of Appeal were not in compliance with order 6 Rule 2(2-4) of the Court of Appeal Rules because they imported “error in law” without quoting the portion of the judgment where the alleged error in law was committed and without stating the particulars of such error drawn from the reasing, finding or observation of the learned judge. He cited CHIEF AKOWA NWAKO & ORS V. THE GOVERNOR OF THE RIVERS STATE OF NIGERIA & 7 ORS (1989) 2 NWLR (Pt. 104) 470 at 479 and other cases.
ON THE THIRD PRELIMINARY OBJECTION
He submitted that ground 1 of the grounds of appeal was false ground of appeal as it was not supported by the record of appeal. He urged the court to hold that it was incompetent citing ALAKIJA V. ABDULLAI (1998) 6 NWLR (Pt. 552) 1.
ON THE FOUTH PRELIMINAY OBJECTION
Learned counsel submitted that Grounds 2, 5 and 6 of the grounds of appeal raised fresh issues not canvassed by the Appellant at the lower court and no leave of court was obtained. He cited KANO ILES PRINTERS PLC V. GLOEDE & HIFF NIG. LTD. (2002) 2 NWLR (Pt. 751) 420 at 448; YIOLA MASKALA V. D. SILL (2002) 13 NWLR (Pt. 784) 216 at 226 and other cases.
Learned counsel finally urged the court to uphold the preliminary objections and to hold that the Appellants Notice of Appeal was not valid and that this court had no jurisdiction to determine the appeal.
On the issues for determination in the appeal learned senior counsel submitted 2 issues for determination merely.
(1) Whether the Appellant was denied the right to fair hearing in this case.
(2) Whether the learned trial judge rightly found the Appellant liable for damages for libel?
He urged the court to strike out Ground 2 of the No. Grounds of Appeal because no issue was formulated on it. He cited ALHAJI M.C. DAHIRU & ANOR. V. ALHAJI MUSA BUBAKERE KAMALA (2005) (Pt. 929) at 56 and other cases.
ON ISSUE ONE;
Learned senior counsel submitted that a person who failed to present its case before the trial court could not complain of lack of fair hearing. He cited BILL CONSTRUCTION CO. LTD V. IMANI & SONS LTD (2006) 19 NWLR (Pt.1013) page 1; S & D CONSTRUTION COMPANY LTD V. CHIEF BAYO AYOKU & ANOR. (2003) 5 NWLR (Pt. 813) 278; CHIJIOKE V. SOETAN (2006) 10 NWLR (Pt. 990) 179 pages 222 – 223 and a host of other cases.
Learned counsel submitted that there was no appeal against the finding of fact that the Appellant chose not to defend their case and so the said finding of fact could not be disclosed by the Appellate court. He cited UBA PLC V. BTC INDUSTRIES LTD (2006) 19 NWLR (Pt. 1013) 61.
He contented further that a party who faired to come to court to defend on action against him could not complain of denial of fair hearing under the 1999 constitution. He referred to ATTORNEY-GENERAL OF RIVERS STATE V. GREGORY OBI UDE & 12 ORS (2006) 17 NWLR (pt. 1008) 436 at 465; OBIMIAMI BRICK & STONE (NIG.) LTD V. ACB LTD (1992) 3 NWLR (pt. 229) 260 at 296 and many other cases.
He urged the court to resolve the above issues in the negative and to dismiss the appeal.
ON ISSUE NO. 2
Learned counsel submitted that the decision of the court below was unassailable. He submitted further that what mattered in a libel suit was who made the publication not who wrote the libelous material. He cited CHIEF ASUQUO EFFIONG OTOP & 5 ORS V. CHIEF NYA EDIM EHONG (2006) 9 NWLR (pt. 986) 533 at 554.
He submitted that the counsel for the Appellant and its counsel were in sin. He Cited ATTORNEY G. OKOTCHA V. HERWA LTD. (2000) 15 NWLR (pt. 690) 249 at 257.
He urged the court to resolve the issue in the affirmative.
The Appellant counsel filed a reply brief of argument on 20/5/2009 which was adopted.
In it, learned counsel for Appellant submitted
(1) That the judgment delivered by the trial court was not a consent judgment by operation of law. He explained the decision in ALHAJI SHUAIBU ABDUKERIN V. INCAR NIG. LTD. (supra).
(2) That the Appellant did not abandon its case at the trial court.
(3) That the grounds of appeal had incorporated the particulars necessary. He cited KASHIM IBRAHIM IMAM & 2 ORS V. ALI MODU SHERIFF & 11 ORS (2005) 4 NWLR (part 914 page 81.
(4) That Ground 1 of the grounds of appeal court is verified from the Record of Appeal.
(5) That the case of KANO ILES PRINTERS PLC V. GLOEDE & HOFF NIG. LTD (2002) 2 NWLR part 751 page 420 and all other authorities cited by the Respondent’s counsel on this point were irrelevant.
(6) ON ISSUE No. 2 formulated by Respondent’s counsel learned counsel for the Appellant adopted ILOBACHIE V. ILOBACHIE (supra) in support of his arguments.
He contended that publication was not proved by the Plaintiff/Respondent at the lower court as no customer of the Appellant was called to testify to the effect that he or she received a copy of the fetter in question. He cited OSAYANDE V. ETUK (2008) 1NWLR (pt. 1068 page 211.
He submitted further that at parties necessary for the fair effectual and final determination of all the issues involved in this case were not presented at the court below. He cited MOBIL OIL PLC V. DREXEL ENERGY AND NATURAL RESOURCES LTD & 4 OTHERS (2004) 1 NWLR (pt.853) at 142. Learned counsel for the Appellant finally urged the court to uphold the appeal.
I have carefully considered the submissions made on both sides by learned counsel.
Is the judgment appealed against a consent judgment? Learned senior counsel for the Respondent relied heavily on the decision of ALHAJI SHUAIBU ABDULKARIM V. INCAR (NIG.) LTD. (supra) on this.
He submitted that the judgment being a consent judgment within the provisions of section 247(2c) of the 1999 constitution could not be appealed against except with leave of court. His submission drew strength from the dictum of the Supreme Court on page 15 which states.
“The significance of the provision in section 220 subsection (2) (c) of the 1979 Constitution is to limit litigation where some modicum of agreement has been reached between the parties. The agreement can take any form. It could be in the form of consent in its technical sense or submission to judgment or admission of claim or conceding to a claim as in the Application to strike out on dismiss the claim in the present case to which Plaintiff’s counsel conceded…”
Learned counsel agreed that the definition of consent judgment could be extended to Defendant’s abandonment of statement of defence by deliberate decision not to call evidence.
In CHIEF SARO MANSON & 3ORS V. HALLIBURTON ENERGY SERVICES LTD & ANOR (2007) 2 NWLR (PT. 1018) 211 on page 232. Thomas JCA held as follows:
“Since the appellant is aware that they abandoned their pleadings in respect to their denials by failing to call witness (es), learned counsel should have known the implications of abandonment of pleadings. As a learned counsel, the word “abandonment” is known in law. Black’s Law Dictionary, 6th Edition is very instructive. To abandon means:
“To desert, surrender, forsake or cede. The relinquish or give up with intent of never again resuming one’s right or interest… To give up absolutely, to forsake entirely…”
From the above cited Supreme Court decisions and consequential effects of abandoning his pleadings by refusal to call witnesses in support of his denials, I am satisfied that the respondents have established that the appellant had clear manifestation of its intention of never returning to prove its defence. It is a clear case by desertion and this amount to surrendering or submission to the trial court’s decision. The resultant decision entered in favour of the respondents by granting the totality of their claims is undisputed decision made with the consent of the appellant by operation of law.”
Section 241(2)(c) of the 1999 Constitution reads:-
“Nothing in this section shall confer any right of appeal.
c) Without the leave of the Federal High Court, or a High Court or the Court of Appeal from a decision of the Federal High Court or High court made with the consent of the parties as to costs only.”
The facts of MANSOM V. HALLIBURTON ENERGY SERVICES LTD (supra) are distinguishable from the facts of this case. In MANSON v. HALLIBURTON ENERGY SERVICES pleadings were filed and exchanged between the parties. The applicants, called evidence in support of their claims. The respondents did not call evidence but rested their case on the applicants who called witnesses and properly testified. At the end of the trial, the trial court entered judgment of trial court that was challenged on appeal in Manson’s case.
With due respect to learned senior counsel, the judgment in this case is not a consent judgment. It is more of abandonment of proceedings. I am more fortified in this view by the definition of consent judgment is Black’s Law Dictionary 8th Edition which defines it as agreed judgment, a settlement that becomes a court judgment when the judges sanctions it. There must have been an agreement whether express or implied which the court will sanction, See ABDUKARIM v. INCAR NIG. LTD. (1992) 7 NWLR [pt.251] 1 at 15. Some mutuality between the parties is implied in a consent judgment.
The appellant in this case does not therefore need to apply for leave in accordance with section 241 (2) (c) of the 1999 Constitution as the judgment appealed against not a consent judgment. The ground of preliminary objection fails. I shall take the other grounds of the preliminary objection together.
I have carefully considered all the grounds of appeal of the appellant in this case. I agree with the submission of learned counsel for the appellant in his brief on the preliminary objection. I am satisfied that the grounds of appeal are in compliance with the requirements of Order 6 Rules 2 and 3 of the Court of Appeal Rules. I hold that the preliminary objection has no merit. It is therefore dismissed.
Now to the main appeal. I shall adopt the issues formulated by the learned senior counsel for the Respondent in this appeal. The issues are:
(1) Whether the Appellant was denied the right to fair hearing in this case.
(2) Whether the learned trial judge rightly found the Appellant liable for damages for libel.
What happened at the trial court has been described earlier in this judgment. But at the risk of repetition it is summarized thus:-
This is a case where the Appellant was in court on 25/6/2003 when hearing commenced in this case. The defendant Appellant was represented by S. A. Akorede-Lawal.
Hearing commenced. The Plaintiff commenced evidence and two documents were tendered and admitted without objection from learned counsel of Defendant/Appellant. The case was then adjourned for further hearing to 17th, 18th and 19th November 2003 in the presence of learned counsel for Defendant/Appellant.
On 17/7/2003 Defendant/Appellant counsel was in court and participated in the proceedings. The case was later adjourned to 17/11/2003. Learned counsel for Defendant/Appellant and the Defendant/Appellants were absent on that day. Hearing continued however in their absence. The case was again adjourned to 9/2/2004 for continuation of hearing.
On 9/2/2004 Defendant/Appellant’s counsel was present and participated in the Proceedings.
The case was then adjourned to 3rd and 4th May 2004.
On 3/5/2004, neither the Defendants nor their counsel were in court. However counsel for the Defendants sent in a letter asking for adjournment on the grand that they intended to have this matter settled out of court.
Strangely, Plaintiff’s counsel opposed the application. This means the idea of settling out court was the decision of the Defendant’s alone.
However the case was again adjourned to 7th and 14th June 2004 for continuation of hearing.
The defendants/Appellants counsel who wrote to adjournment did not bother to check what happened in court. Neither did the Appellant. They were absent in court on 7/6/2004 but hearing continued. The Defendant/Appellants were absent in subsequent proceedings until the case was adjourned judgment few days to the date of judgment the Appellant filed a motion on notice to arrest the judgment. The motion on notice was taken and dismissed.
From the facts set out about can one say that Defendants deserve any indulgence? Was their right to fair hearing infringed?
Why were they absent in court on 7th and 14th June, 2004? Why did they not follow up their counsel’s letter dumped on the court on 3/5/2004? In any case what is the meaning of settlement out court without the cooperation of the Plaintiff/Respondent and after being confronted with the evidence of PW1 and PW2 and the documents tendered?
I think it is reasonable to hold that the Defendants and their counsel tormented by the truth as contained in the evidence adduced and troubled by qualms of conscience under the guise of settlement out of court abandoned the proceedings at the lower court and only came back for fear of the measure of damages to be awarded against them. I do not think the Appellant deserve the indulgence it expected from the lower court. In A.G. RIVERS STATE V. UDE (2006) 17 NMLR (pt.1008) at 437 the Supreme Court considered a similar case this way.
In his leading judgment Ogbuagu JSC said on page 437
“The Court of Appeal was in error to have held that the trial judge was wrong do have exercised his discretion to close the case of the respondents when they failed to appeal in court. When it was the respondents who asked for and were granted an adjournment to appeal in court in a certain date to prosecute their claims before the Court. They refused to appeal in court and had failed to find out what was happening in the court. They simply abandoned their case and accordingly the respondents were not entitled to fresh hearing date under the circumstances. I accordingly resolve the issue in favour of the appellant.”
The Appellant abandoned the statement of defence filed on 24/6/2003 with leave of court on 24/6/2003 when he did not call evidence in support. See JACOB A. JOLAYEMI & 2 ORS V. ALHAJI RAJI ALAOYE & ANOR. (2000) 12 NWLR (Pt. 887) 322 on page 340; AJAO V. ALAO (1986) 5 NWLR (Pt. 45) 802, CHIEF S.L. DUROSARO V. T.A.A. AYORINDE (2005) 8 NWLR (Pt. 927) 407 among others.
I resolve issue one in favour of the Respondent. I hold that the Appellant was not denied the right to fair hearing in this case.
Both the Appellant and his counsel were guilty. The trial court did not visit the sins of counsel on the Appellant. See ANTHONY OHATECHA VS HERWA LTD (2000) 15 NWLR (Pt. 690) 249 at 257 where Oguntade JCA (as he then was) held:-
“I also, accept that it is wrong in principle to visit the sins of a counsel on his client but in the instant case both the client and his counsel were in sin and I do not see the justification to penalize the party that was in court at the proper time to argue its case only because of such principle of not visiting counsel’s sin on the litigant.”
ISSUE NO. 2
Whether the learned trial judge was right to have found the Appellant liable for damages for libel.
Learned counsel for Appellant had contended that the author of the alleged libelous material ought to have been joined as a party to the suit and that failure to do so was a fatal error.
He submitted further that the petition written to the Appellant by one of its customer was covered by the doctrine of qualified privilege which was a defence in libel cases. He cited MANNAN V. SALIUDEEN (2005) 18 NWLR part 958 pages 478.
The defence of qualified privilege is a defence which the defendants must have pleaded and give evidence in support of at the trial court. Unfortunately no such evidence was given at the trial court. Pleadings have no mouth and so cannot speak on their own.
See CHIEF S.L. DUROSARO V. T.A.A. AYORINDE (2005) 8 NWLR (Pt. 927) 407 at 425.
The evidence of the Plaintiff’s witness at the trial court was unchallenged. I agree with the learned senior counsel that the issue of authorship of the libelous material was never in issue at the trial court.
This appeal lacks merit in its entirety. It is accordingly dismissed. Cost of N50,000.00 is hereby awarded in favour of the Respondent.
M. D. MUHAMMAD (OFR), J.C.A.: I have read in draft the leading judgment prepared by my learned brother Awotoye JCA and agree with his reasonings leading to the conclusion therein that the appeal lacks merit. I join him in dismissing the appeal and abide by the consequential orders decreed including order on costs.
ISTIFANUS THOMAS, J.C.A.: I have had the privilege of reading in advance, the lead judgment of my learned brother, Awotoye, JCA just delivered. I adopt the lead judgment as my own. His Lordship considered and determined all the issues raised between the parties and I have nothing more to add. The appeal has no merit. I abide with the consequential orders including costs.
Appearances
S. E. Elema with D. U. ObiFor Appellant
AND
B. E. I. Nwofor (SAN) with F. G. WarmateFor Respondent
