OLIVER O. AMUZIE ESQ V. ARCH. CHRIS O. ASONYE
(2010)LCN/4137(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 14th day of December, 2010
CA/OW/12/2009
RATIO
THE ESSENTIAL POSITION OF A RESPONDENT WITH RESPECT TO A RESPONDENT’S NOTICE
…the Respondent’s Notice can only be based on a finding of the trial court. If the trial court gave that impression, it never made that finding and this court cannot use it to affirm the judgment. The essential position of a Respondent who files a Respondent’s notice is that the judge is correct but that there are other grounds which could either be in substitution for some of the reasons given for it or in addition to the grounds for the judgment. See BOB-MANUEL v. BRIGGS (2003) 5 NWLR Pt.813; AMERICAN CYANAMID CO. v. VITALITY PHARMACEUTICAL LTD. (1991) 2 NWLR Pt. 171 Pg.15.
LIBEL: REQUIREMENT OF THE LAW FOR AN ACTION IN LIBEL TO SUCCEED
…it is important and settled that to find an action in libel there must be written to some person other that the person of whom it is written. If the statement is sent straight to the person of whom it is written, there is no publication of it. A communication of the defamatory matter to the person defamed cannot injure his reputation though it may wound his self esteem. A man’s reputation is not the good opinion he has of himself, but the estimation others hold of him. See EDORO v. GUARARA FINANCE & SECURITIES CO. LTD. 2003 FWLR. PT.142 9 AT 19; OTOP V. EKONG (2006) 9 NWLR PT.986 PG.533; YAHAYA V. MUNCHIKA (2000) 7 NWLR PT.664 PG.300; NSIRIM V. NSIRIM (1990) 3 NWLR PT.138 PG. 285; AYENI V. ADESINA (2007) 7 NWLR PT.1033 PG.233 AT 263; SCHLUMBERGER NIG. LTD. V. ONAH (2007) ALL FWLR PT.389 PG.1327 AT 1366 – 1367.
PLEADINGS: HOW A DENIAL OR TRAVERSE IN A PLEADING SHOULD BE MADE
From the foregoing, it is clear that even though the Appellant mentioned specific person to whom the libel was published, the Respondent did not specifically deny publication to these persons. A denial or traverse in pleadings must be formal and direct. Pleadings must be considered as a whole not specific portions or paragraphs considered in isolation. See TITILAYO v. OLUPO (1991) 9-10 Pg.131. A look at the 13 paragraph statement of defence show that except forth general denial in paragraph 8 of paragraphs 6, 9 & 10-18 of the statement of claim, the statement of defence was wholly devoted to detailing the justification of the Respondent for writing the letter. Where an allegation is no frontally and specifically denied, it is deemed admitted. It is trite law that every allegation of fact in a statement of claim if not denied specifically or by necessary implication or stated not to be admitted in the statement of defence shall be taken as admitted. See KYARI v. ALKALI (2001) 11 NWLR Pt.724 Pg.412. In fact, the law is sacrosanct that pleadings must be sufficiently set out, comprehensively and accurately stated. Prevarication is an anathema to good pleadings, it depicts double talk. See Aderemi JCA (as he then was) in BASHORUN v. OGUNLEWE (2000) 1 NWLR Pt.640 Pg221 at Pg.234. In ABUBAKAR v. WAZIRI & ORS. (2008) 6 SCNJ 81 at 91, the Supreme Court held per Aderemi JSC that- “It has been a long standing principle of our law that pleadings must not be evasive. It must be cogent and pungent. One of the objects of pleadings is to settle the issues to be tried and it must betaken as established law that parties are bound by their pleadings and the court should not allow evidence to be given in respect of facts not pleaded or not clearly pleaded.” (Underlining mine)
ESSENCE OF PROOF OF PUBLICATION IN AN ACTION FOR LIBEL
An action for libel must fail if publication of the defamatory matter is not proved. This proof must be given by admissible evidence as it is the publication that donates a cause of action in libel. The material part of the cause of action is not the writing, but the publication of libel. The act of publish the libelous matter constitutes the cause of action. See NSIRIM v. NSIRIM (1990) 3 NWLR Pt.138 pg.285. Thus there must be strict and positive of the essential ingredient of libel which is the publication of the libel to a third person. The onus is on the party alleging publication to prove same. Thus publication – that is the making know of the defamatory matter to some persons other than the person of whom it is written must be prove by the Appellant on the balance of probabilities. Where a plaintiff does not prove publication, no cause of action has arisen. See DAIRO v. UNION BANK (2007) 16 NWLR Pt.1059 pg.99.
CIRCUMSTANCES WHERE IT WILL NOT BE NECESSARY TO PROVE PUBLICATION
Merely giving evidence on the defamatory material is not enough in cases of libel where it is always emphasized that its publication be pleaded and testified upon before it can be regarded as proved. See OTOP v. EKONG (2006) 9 NWLR Pt.986 pg.533. However, I would not go so far as to say that where there is a direct and positive admission of the publication in the pleadings, the plaintiff is still required to prove the publication on a balance of probabilities. In such an event, the plaintiff is only required to adduce minimal proof or the publication. With the greatest respect, I would also not go as far as to agree with this court in AYENI v. ADESINA supra that the general principles relating to admission in civil cases cannot be invoked to prove publication in civil cases. That stand will surely contradict S.75 of the Evidence Act. It is elementary that admissions in pleadings do not have to be proved. In so far as pleadings do not contain admission, then the matters alleged must be proved by evidence, but that evidence cannot derogate from the pleadings per Mohammed JSC in NDUKWE v. ACHA (1998) 6 NWLR Pt.552 pg.1 at pg. 9-10. Facts admitted need no further proof. See OSENI & ORS v. DAWODU & ORS. (1994) 4 NWLR Pt.339 Pg.390; UBA & ANOR. v. JARGABA (2007) 11 NWLR Pt.1045 at pg.247. I would rather agree with this court in OFOEGBU v. ONWUKA (2008) ALL FWLR Pt.412 pg.1141 at 1148-1149 that it is not necessary to prove publication where the Defendant has made a direct and positive admission of it in the pleadings. See SALAWU v. YUSUF (2007) 12 NWLR Pt.1049 Pg.707; NDUKWE v. LPDC (2007) 5 NWLR Pt.1026 Pg. 1.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
OLIVER O. AMUZIE ESQ Appellant(s)
AND
ARCH. CHRIS O. ASONYE Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Abia State presided over by His Lordship. Hon. Justice A. U. Kalu delivered on 14/12/06 wherein the claim of the Plaintiff was dismissed. The Plaintiff therein is the Appellant herein and the Defendant is the Respondent herein.
The facts that led to this appeal are as follows:
By a letter dated 28th September, 2005, admitted as Exh. G, the Appellant, a legal practitioner, wrote to the Respondent demanding a total sum of N380,000.00, which he claimed was unpaid professional fees owed to him by the respondent for legal services he rendered to the respondent. Respondent replied to this letter by his own letter dated 12th Nov, 2005, Exh. A & H, wherein he berated Appellant for inter alia denying the payments the Respondent did in fact make and deceiving him into believing that Appellant was conducting respondent’s matter for and on behalf of the law firm of A. A. Ibebunjo & Co when in fact he had diverted the matter to his personal brief, Exh. A & H are the same letter on which the action is based. I will refer to the letter henceforth as Exh. A. Appellant conceived Exh. A as libelous of himself and filed this action against the respondent at the High Court of Abia State sitting at Umuahia, wherein he claimed the sum of N20m as general damages for defamation and an injunctive relief.
Respondent in his statement of defence admitted writing Exh. A to the Appellant and generally denied all other allegations in the statement of claim except the home address and former abode of Respondent. He also pleaded justification and fair comment. Appellant also filed a reply to the statement of defence in which he denied receiving any professional fee from Respondent whatsoever. At the trial, the Appellant testified on his own behalf and called two other witnesses. Respondent also called three witnesses including himself.
The learned trial judge after evaluating the evidence delivered his judgment and found that the Appellant failed to prove the publication of the alleged libelous material by the Respondent, and dismissed the suit on this sole ground. Then in exercise of its inherent powers, the lower court directed that the judgment be copied to the Nigerian Bar Association, Umuahia Branch and the Commissioner of Police, Abia State for any action they may deem necessary to take after investigation into the conduct of the Appellant. It is against this judgment that the Appellant filed a notice of Appeal on 18/12/06 containing eight (8) grounds of appeal. Respondent reacted to this by filing a Respondent’s notice on 5/6/07 containing two grounds wherein the court of appeal is urged to affirm the lower court’s judgment on other grounds than that relied upon by the learned trial judge. The Appellant filed a brief dated 11/6/10 on 14/6/10 and a reply brief dated and filed on 27/9/10. The Respondent filed a brief dated 2/8/10 on 10/8/10. Issues were joined by the parties in this court.
The Appellant identified the following issues for determination:
“1. Whether from the admissible, evidence and circumstance of the case, the Appellant did not prove publication of the said defamatory letter by the Respondent to any third party? (derived from grounds 1, 3, 4, 5, and 6 of the Grounds of Appeal).
2. Whether the learned trial judged was right in basing his decision in the matter purely on extraneous matters not supported by pleadings and admissible evidence before the courts? (Derived from Grounds 2, 5 and 6 of the Grounds of Appeal.
3. Whether the findings and uncomplimentary remarks made by the learned trial Judge against the person of the Appellant based on extraneous matters are proper in the circumstance of the case? (Derived from grounds 5 and 6 of the Grounds of Appeal).
4. Whether the granting of orders not asked for by any party to the case in favour of non parties by the learned trial judge was proper in the circumstance of the case? (Derived from ground 7 of the Grounds of Appeal).
5. Whether the trial judge properly evaluated the evidence of parties and if the decision of the trial court was not against the weight of evidence before the court? (Derived from Grounds 4 and 8 of the Grounds of Appeal).
6. Whether in the circumstances of the case, the Appellant was not defamed by words published by the Respondent and if the Respondent established the defence of jurisdiction to escape liability? (Derived from grounds 4 and 8 of the Grounds of Appeal).”
The respondent donated the following issues for consideration:
“(a) Whether the learned trial judge was right in his finding that Appellants failed to prove publication of the alleged libel and dismissing the suit of the Appellant on that ground (Derived from grounds 4 and 8 of the Notice and grounds of Appeal).
(b) Whether the defences of justification and fair comment also avail the Respondent in this suit (Derived from ground 1 of the respondent’s Notice).
(c) Whether in the circumstances of this case, the learned trial judge was not justified in making the consequential orders he made in his judgment (Derived from grounds 6 and 7 of the notice and Grounds of Appeal).
(d) Whether in the circumstances of this case, the Appellant has any character worthy of protection by the law (Derived from ground 2 of Respondent’s Notice).
Let me say that issues 3 and 4 submitted for determination by the Appellant though derived from grounds 5, 6 and 7 of the Ground of Appeal are in my humble view irrelevant being academic issues not worthy of our consideration. They seek our opinion on whether the learned trial judge’s uncomplimentary remarks were proper and whether the orders made by the learned trial judge on the Inspector General of Police to investigate the Appellant were legal. It is my humble view that the right of appeal conferred by the constitution on a litigant does not donate unlimited right on an Appellant to raise all manner of grounds of appeal. There is no doubt that the comments and orders of the learned trial judge in respect of the Appellant were by way of obiter dictum and are thus not subject matter of appeal. See DR. IME SAMPSON UMANAH v. OBONG VICTOR ATTAH (2006) 9 SCNJ 75. The judgment of a court, the legal principle formulated by that court which is necessary in the determination of the issues raised in the case, that is the binding part of the decision, is its ratio decidendi as against the remaining parts of the judgment which merely constitute obiter dicta; that is to say what is not necessary for the decision. See DAIRO v. UBN (2007) 16 NWLR Pt. 1059 Pg. 99 at 158-159. Any valid issue for determination must arise from the ground of appeal that attacks the ratio in the judgment on appeal. See VICTOR ADELEKAN v. ECU-LINE NV (2006) 5 SCNJ 137. This court is not obliged to consider issues that are not part of the live issues in this appeal. The learned trial judge at pages 62-63 of the judgment after finding the claim not proved dismissing same and awarding costs against the Appellant in favour of the respondent held thus:
“I will not end this judgment without commenting on the conduct of the Plaintiff in deliberately fielding a witness, that is, the PW3 to perjure before this court, PW3 was clearly prepared by the Plaintiff to mislead this court. Plaintiff clearly forgot his abiding duty to this court in which we sit as ministers in the temple of justice. Plaintiff as an officer of this court is expected to perform his advocatory duties with all honesty of purpose. The fidelity of his professional mind must never be in doubt and Plaintiff should on no account, and for any reason, mislead the court. To do that, as Plaintiff did in this case, will amount to dishonesty of the highest order which will affect this court’s search for the truth, thus attempting to destroy the entire fabric of the judicial process. That conduct of the Plaintiff was dishonourable and a disreputable act against the court of justice. I would advise the Plaintiff not to allow his desire to get rich quick to divert him in future from the path of honour, justice and ethical conduct. The Assistant Chief Registrar of this court is ordered to endorse a copy of this judgment to the Nigerian Bar Association, Umuahia Branch, for their information and action. The Assistant Chief Registrar is also ordered to endorse a copy of this judgment to the Commissioner of Police, Abia State for the said officer to investigate whether the actions of the Plaintiff, Barrister O.O. Amuzie and the PW3, Chinedu Jonah in this suit constitute infraction of any sections of the Criminal Code particularly Section 118 of the Criminal Code and decide whether to press charges.”
I don’t see how the above can constitute valid grounds to appeal against the judgment of the trial Judge. Any issue based on them is academic. Such a comment was also sought to be used by the Respondent. The 2nd ground of the Respondent’s Notice is:
“That given the Appellant’s penchant for lies, deceit and falsehood, he has no character worthy of protection by the law.”
That was not a finding of the trail court and the Respondent’s Notice can only be based on a finding of the trial court. If the trial court gave that impression, it never made that finding and this court cannot use it to affirm the judgment. The essential position of a Respondent who files a Respondent’s notice is that the judge is correct but that there are other grounds which could either be in substitution for some of the reasons given for it or in addition to the grounds for the judgment. See BOB-MANUEL v. BRIGGS (2003) 5 NWLR Pt.813; AMERICAN CYANAMID CO. v. VITALITY PHARMACEUTICAL LTD. (1991) 2 NWLR Pt. 171 Pg.15. The learned trial judge never made a finding that the Appellant had no character worthy of protection by the law and thus this court cannot be called upon to affirm the decision on that ground. It would be wholly misconceived and academic to affirm the judgment on an obiter of the court.
In the circumstances, I hereby crystallize from the grounds of appeal and relevant issues submitted for determination, the following issues:-
1) Whether the learned trial judge was wrong in his finding that the Appellant failed to prove publication of the letter and dismissing the suit on that ground alone.
(Grounds 1-6, 8).
2) Whether the defences of justification and fair comment avails the Respondent in this suit. (Ground 1 of the Respondent’s Notice).
ISSUE ONE
There are several dimension or legs to this issue. Appellant’s counsel raised first of all the issue of admission of the publication in the pleadings. The 2nd leg urged us to re-evaluate the findings of fact made by the trial judge. On the first leg of this issue, the Appellant submitted that the Respondent did not join issues with the Appellant on whether or not publication took place in his statement of defence. He argued that the Respondents never denied Appellant’s averment in the statement of claim. The essence of Plaintiff pleading the name of those to whom libelous matter was published is to give the Defendant the opportunity to categorically deny same. He cited NSIRIM v. NSIRIM (2004) 26 WRN 13 at 18.
Counsel also argued that the averment concerning the said publication in the statement of claim being the pivot or engine room of the action ought to be denied by the respondent. A fact not denied specifically is deemed admitted. He cited BUHARI v. INEC (2008) 36 NSC QR pg. 475 at 527-528 and 535 – 536. He submitted that the Respondent cannot rely on a general traverse of the statement of claim but must deny specifically material facts. He cited IFETA v. SPDC (2006) 32 WRN at 22. There is only a lukewarm and half hearted denial of the publication of Exh. A by the Respondent in paragraph 8 of the statement of defence where the Defence states “paragraph 6, 9, 10-18 are hereby denied”. He argued that this is a general denial, vague and evasive which did not address the specific material facts of publication as contained in paragraph 6, 10 and 11 of the statement of claim. Thus the fact of publication remains unchallenged.
Counsel submitted that where there is no denial or same is vague, evasive, or general, it amounts to an admission of such material in issue. He cited Order 25 r 13 and 14 of the Abia state High Court Civil Procedure Rules 2001 (which by virtue of S.6 of the Interpretation Act L.F.N 1990 is the applicable law to this case) and S.75 of the Evidence Act. He cited OKONKWO v C.C.B. (2003) 13 NSCQR, 688 at 698, RS, 18 and 20; A.G. ANAMBRA STATE v. A.G. FEDERATION (2005) 7 MJSC 1 at 8, R.7.
Counsel argued that the question of whether the respondent adequately denied publicable in the pleading was seriously argued but the learned trial judge failed to make a specific finding on that fact. Counsel submitted that court has no right to ignore relevant issues submitted for determination. He cited EGHAREVBA v. OSAGIE (2009) 40 NSCQR 469, 472, R.2; ABUBAKAR v. YAR’ADUA (2008) 36 NSCQR 231, 249 T.31. Learned Appellant’s counsel went to a length to analyze the evidence adduced at the trial in favour of publication. He submitted that the learned trial judge was in error in holding that the respondent denied publication when this was not supported by the pleadings. The oral sworn evidence of the Respondent denying publication goes to no issue since same was not pleaded. He cited AGBAJE v. LASIS ADIGUN & ORS. (1993) 1 SCNJ 1; ABUBAKAR v. YAR’ADUA (supra) 246-247, R.25; OKONKWO v. C.C.B. (supra) Pg.696, RS. 4 and 14.
Counsel finally submitted that going by the state of pleadings in the case, the Appellant was relieved of the duty of proving publication of the libelous matter, same having been admitted by the respondent. It is not necessary for the Appellant to prove publication where the respondent did not by his pleading deny same. He cited IWUEKE v. I.M.C. (2005) 24 NSCQR 219, 244-245, R.11; ECONOMIDES v. THOMOPULOS & CO. LTD. (1959) 1 FSC; AGBANELO v. UBN (2000) 2 SCNQR 415, 418, 420 RS. 6 and 15.
In answer, learned counsel for the respondent is whether the letter he admittedly wrote to the Appellant was published to other persons. Counsel argued that by the state of pleadings, the onus of proving that the respondent published the letter was squarely on the Appellant. He cited S.135 of the Evidence Act. He argued that the entire pleadings should be considered in order to determine the issue joined. Counsel argued that paragraph 6 of the statement of claim was denied in paragraphs 1, 2 & 8 of the statement of defence. Counsel argued that the entire pleadings should be considered in order to know on what matter issues were joined.
I am of the humble view and I daresay it is not settled that in any action for defamation it is necessary for the plaintiff to prove the following:
(a) Publication of the statement to at least one other person other than the plaintiff and the defendant’s spouse;
(b) The statement referred, or by implication referred to the plaintiff; and
(c) That the statement was defamatory
In this case, requirements (b) and (c) are not disputed. The Appellant allege and statement admitted that he wrote Exh. A. On requirement (a), it is important and settled that to find an action in libel there must be written to some person other that the person of whom it is written. If the statement is sent straight to the person of whom it is written, there is no publication of it. A communication of the defamatory matter to the person defamed cannot injure his reputation though it may wound his self esteem. A man’s reputation is not the good opinion he has of himself, but the estimation others hold of him. See EDORO v. GUARARA FINANCE & SECURITIES CO. LTD. 2003 FWLR. PT.142 9 AT 19; OTOP V. EKONG (2006) 9 NWLR PT.986 PG.533; YAHAYA V. MUNCHIKA (2000) 7 NWLR PT.664 PG.300; NSIRIM V. NSIRIM (1990) 3 NWLR PT.138 PG. 285; AYENI V. ADESINA (2007) 7 NWLR PT.1033 PG.233 AT 263; SCHLUMBERGER NIG. LTD. V. ONAH (2007) ALL FWLR PT.389 PG.1327 AT 1366 – 1367.
We must first determine whether by the state of pleadings and the applicable case law, publication was not denied and was thus constructively admitted by the Respondent. I will first of all set out state of the Law relating to pleading in general.
The Appellant pleaded as follows in paragraphs 6 and 10 of the statement of claim-
“6. Instead of the Defendant paying the Plaintiff as agreed, the defendant by a letter dated 12/11/2005 titled “RE: Bill of Charges for Professional Services rendered by me: O. O. Amuzie, to you in sit No. HV/119/2005 and charge No. VS/567/2005 addressed to the plaintiff, copied to A. A. Ibebunjo Esq., forwarded by the Defendant to the Nigerian Bar Association, Umuahia Branch and circuited by the Defendant to various persons at various beer parlous in Umuahia including one Chinedu Jonah, libeled the plaintiff, falsely and maliciously as follows…
“(i) I also want to tell you that it is very disheartening and at the same time I am highly disappointed that a young lawyer like you can choose to be fraudulent and deceptive.
(ii) Also because you are fraudulent and crafty you never told me you were not working for your principal who is my lawyer and whom I consulted for this case, you decided to make it your own personal brief and at such all the money I paid to your principal through you were not given to him.
(iii) Finally, I was also reliably informed by Barr. Ihim of your dubious character as a lawyer and how you breached the lawyer/client’s trust.
10. By this publication, the Plaintiff has been falsely and maliciously disparaged in his professional standing and libeled most outrageously by the Defendant and has been thereby greatly injured in his credit, reputation, character and in his office and occupation as a reputation as a reputable legal practitioner of high standing and has been brought into hatred ridicule and contempt. For instance, on 25/11/2005, during the Nigerians Bar Association meeting of the Umauhia Branch, the said letter was presented and read to the general house. The entire members of the Umuahia general house. The entire members of the Umuahia Branch have since then been looking at the Plaintiff with contempt, hatred and ridicate. The Plaintiff does not command the respect, reputation and trust that were used to be ascribed to him. A copy of the minutes of the said meeting of NBA Umuahia Branch of 25/11/2005 is hereby pleaded.”
In traversing these grave allegations, the Respondent replied thus in the statement of defence paragraphs 1, 2 & 8 thereof:
“1. Save as herein expressly admitted, the defendant hereby denies each and every allegation of facts and paragraph of the statement of defence as if same is set out and denied seriatim.
2. The Defendant hereby pleads and shall rely on the defence of justification. The Defendant admits writing the said letter dated Nov. 12, 2005, to the plaintiff. The defendant avers that what was stated about or of the plaintiff in the said letter are true. The said letter as exhibited to the statement of claim is hereby adopted as if same is re-pleaded herein.”
8. Paragraphs 6, 9, 10-18 are hereby denied. Not only did the defendant pay the fees as stated above, he also paid separately for correspondent on his behalf as stated in his letter, as well as paid transport daily appearance fee to the plaintiff each day he came to court in respect of any of the said matters. At all times, the plaintiff gave Defendant the impression that the monies he received from defendant were for and on behalf of the firm of A.A. Ibebunjo & Co. Defendant had no way of knowing what arrangement existed between Ibebunjo Esq. and the Plaintiff.”
From the foregoing, it is clear that even though the Appellant mentioned specific person to whom the libel was published, the Respondent did not specifically deny publication to these persons. A denial or traverse in pleadings must be formal and direct. Pleadings must be considered as a whole not specific portions or paragraphs considered in isolation. See TITILAYO v. OLUPO (1991) 9-10 Pg.131. A look at the 13 paragraph statement of defence show that except forth general denial in paragraph 8 of paragraphs 6, 9 & 10-18 of the statement of claim, the statement of defence was wholly devoted to detailing the justification of the Respondent for writing the letter. Where an allegation is no frontally and specifically denied, it is deemed admitted. It is trite law that every allegation of fact in a statement of claim if not denied specifically or by necessary implication or stated not to be admitted in the statement of defence shall be taken as admitted. See KYARI v. ALKALI (2001) 11 NWLR Pt.724 Pg.412. In fact, the law is sacrosanct that pleadings must be sufficiently set out, comprehensively and accurately stated. Prevarication is an anathema to good pleadings, it depicts double talk. See Aderemi JCA (as he then was) in BASHORUN v. OGUNLEWE (2000) 1 NWLR Pt.640 Pg221 at Pg.234. In ABUBAKAR v. WAZIRI & ORS. (2008) 6 SCNJ 81 at 91, the Supreme Court held per Aderemi JSC that-
“It has been a long standing principle of our law that pleadings must not be evasive. It must be cogent and pungent. One of the objects of pleadings is to settle the issues to be tried and it must betaken as established law that parties are bound by their pleadings and the court should not allow evidence to be given in respect of facts not pleaded or not clearly pleaded.” (Underlining mine)
The above is the general law relating to pleadings in most civil matters and it is to the effect that there can be constructive admission where there is no direct and positive denial of particulars in pleadings.
The question I have to answer is whether the decision on pleadings also contained in order 25 r 13 & 14 of the Abia State High Court Rules can be made to overrule the common law of evidence as it relates to the proof of defamation under the law. An action for libel must fail if publication of the defamatory matter is not proved. This proof must be given by admissible evidence as it is the publication that donates a cause of action in libel. The material part of the cause of action is not the writing, but the publication of libel. The act of publish the libelous matter constitutes the cause of action. See NSIRIM v. NSIRIM (1990) 3 NWLR Pt.138 pg.285.
Thus there must be strict and positive of the essential ingredient of libel which is the publication of the libel to a third person. The onus is on the party alleging publication to prove same. Thus publication – that is the making know of the defamatory matter to some persons other than the person of whom it is written must be prove by the Appellant on the balance of probabilities.
Where a plaintiff does not prove publication, no cause of action has arisen. See DAIRO v. UNION BANK (2007) 16 NWLR Pt.1059 pg.99. Even though the Respondent in this case never clearly or directly denied the publication, he made no positive and direct at mission of it, by reason of the fact that it is the publication that gives rise to a cause of action, the general principle relating to constructive admission in civil cases enunciated by me above, cannot be invoked to prove publication in libel cases.
Merely giving evidence on the defamatory material is not enough in cases of libel where it is always emphasized that its publication be pleaded and testified upon before it can be regarded as proved. See OTOP v. EKONG (2006) 9 NWLR Pt.986 pg.533. However, I would not go so far as to say that where there is a direct and positive admission of the publication in the pleadings, the plaintiff is still required to prove the publication on a balance of probabilities. In such an event, the plaintiff is only required to adduce minimal proof or the publication. With the greatest respect, I would also not go as far as to agree with this court in AYENI v. ADESINA supra that the general principles relating to admission in civil cases cannot be invoked to prove publication in civil cases. That stand will surely contradict S.75 of the Evidence Act.
It is elementary that admissions in pleadings do not have to be proved. In so far as pleadings do not contain admission, then the matters alleged must be proved by evidence, but that evidence cannot derogate from the pleadings per Mohammed JSC in NDUKWE v. ACHA (1998) 6 NWLR Pt.552 pg.1 at pg. 9-10. Facts admitted need no further proof. See OSENI & ORS v. DAWODU & ORS. (1994) 4 NWLR Pt.339 Pg.390; UBA & ANOR. v. JARGABA (2007) 11 NWLR Pt.1045 at pg.247.
I would rather agree with this court in OFOEGBU v. ONWUKA (2008) ALL FWLR Pt.412 pg.1141 at 1148-1149 that it is not necessary to prove publication where the Defendant has made a direct and positive admission of it in the pleadings. See SALAWU v. YUSUF (2007) 12 NWLR Pt.1049 Pg.707; NDUKWE v. LPDC (2007) 5 NWLR Pt.1026 Pg. 1. In the circumstance, three being no direct, unequivocal and positive admission of publication by the Respondent in this case, the Appellant was obliged to adduce evidence, credible and admissible, sufficiently to enable the court to hold that he had proved the face of publication of the libel to a third party.
We have been asked by both parties to evaluate both the weight and probative value to be attached to the evidence of publication proffered before the trial court. The Appellant sought to prove publication to three sets of people. (1) Mr. A. A. Ibebunjo Esq. (2) The body of the Nigerian Bar Association Umuahia Branch (3) Sundry persons who frequent beer parlours particularly one Chinedu Jonah – PW3.
Learned Appellant argued that the learned trial judge in paragraph 2 page 57 of the record agreed the Exh. A was copied to A.A. Ibebunjo but wrongly held that the endorsement does not conclusively prove that in fact A. A. Ibebunjo received and read the letter. Counsel argued that the onus shifted on the Respondent to show that he did not in actual fact send the letter to A. A. Ibebunjo Esq. Learned counsel for the Respondent argued the view that the footnote on Exh.A is not at all proof of delivery to Ibebunjo Esq. At best it would be an expression of an intention to communicate same to the person copied. He argued the possibility that it was the Appellant himself who wrote the footnote on Exh. A.
I have read the finding of the learned trial judge on this issue. Let me first say with the greatest respect that the Appellant is under a misconception of the law to argue that the onus lies on the Respondent to prove that he did not deliver the copy of the letter to Ibebunjo. The law requires the plaintiff in an action for libel to strictly prove the publication. The burden of proof is fixed on him as the end of pleading and he must discharge that burden before it can shift to the Respondent. The letter written by Mr. Ibebunjo Exh. F did not specifically acknowledge receipt of Exh. A from the Respondent or his proxy. There cannot be presumption of communication or publication of the letter. I agree with the learned trial judge that in the absence of a letter from Ibebunjo Esq. which referred to the receipt of Exh. A from the Respondent and in the absence of direct oral evidence on oath from Ibebunjo detailing who published Exh. A to him, the Appellant cannot be said to have proved that the Respondent published Exh. A to Ibebunjo Esq. True, there was indication on the letter showing an intention to copy it to Ibebunjo Esq., however, until proof that the intention was actualized is adduced it remained only an intention which was not elevated by any proof to infer actualization. In the circumstances, there is no preponderant evidence that the Respondent published the letter to Ibebunjo Esq.
On the proof of publication to the Nigerian Bar Association (NBA) Umuahia Branch, the Appellant tendered Exh. B the minutes of the general meeting on 2/11/2005 where Exh. A was read to the whole house. Appellant’s counsel argued that the Respondent did not challenge the events in his pleadings except to say on oath that he never forwarded a copy of his letter to be Bar. Appellant’s counsel argued that he was not duty bound issue not being joined on that point to call the secretary or chairman of the bar. On his part, learned Respondent’s counsel adopted and then commended to us the analysis of the learned trial judge in rejecting the evidence of publication of NBA Umuahia Branch.
I am of the humble view and I agree with the learned trial judge that the Appellant was obliged to call either the secretary or chairman of the Bar to prove how they came into possession of Exh.A which they then commenced to publish to the whole branch. Exh A was originally a private letter between two people. Either one of them could have sent it to the Bar for publication. All the evidence of PW2 and Exh.B, the minutes of the meeting proved was the publication and not source of the publication. The Respondent can only be liable where there is proof that he was the source of the publication. The evidence of PW2 is as follows on page 30 of Record:
“The Defendant is known by him because during the meeting a copy of letter written by him to the plaintiff was forwarded to the Nigeria Bar Association.”
The million dollar question is – who forwarded it? The Appellant never provided a credible answer.
Then, comes the question of whether or not the Respondent published the said Exh. A to Chinedu Jonah. Chinedu Jonah had given evidence on oath that he was given Exh.M (same as Exh.A) by the Respondent as a Beer Parlour and that his family owned property previously managed by the Appellant which they took from his management because they could no longer trust the Appellant as a result of the publication of Exh.A. The Respondent called DW.2 and DW3 in rebuttal of the evidence of PW3 that his family owned this specific landed property. The trial judge held that the evidence of DW1 & DW2 discredited and exposed PW3 as an inveterate liar and a fraud of monumental proportions. The court also held that no weight could be attached to his evidence. On this point, the learned Appellant’s counsel urged this court to believe the evidence of PW3 and to regard his lies about the ownership of the house as being in consequential to the facts in issue before the trial court.
The Respondent’s counsel argued that this court is obliged not to interfere with the findings of fact made by the trial judge. I quite agree with the learned Respondent’s counsel on this point. The law is trite that when a trial judge who observed and heard witnesses testify before him has evaluated the evidence of the witnesses based on the credibility of those witnesses, and drawn conclusions thereon, an appellate court cannot interfere with same unless it is demonstrated that such conclusions are perverse. See AGBI v. OGBEH (2006) 11 NWLR Pt.900 pg.65.
Having read the evidence of PW3 and the evidence of DW2 and DW3 in rebuttal, I cannot fault the reasoning of the learned trial judge on the credibility of PW3 and the weight to be attached to his evidence, I share the opinion that the fellow is a rogue who should not have polluted the halls of justice with his odious presence. Suffice it to say that his evidence is worthless to prove publication.
In sum, the Appellant was not able to prove publication by cogent and credible evidence, in consequence, no cause of action in libel arose or ripened against the Respondent. The finding of the trial judge that there was no publication is hereby affirmed. This issue is resolved against the Appellant.
That should have been the end of the matter. However, the Respondent filed a Respondent’s Notice and is the basis of issue 2 distilled for determination. I have always held fast to the view that as the penultimate court, we are obliged to consider and determine all issues presented to us for consideration.
ISSUE TWO
Issue two is derived from the Respondent’s Notice and it is whether the defence of Jurisdiction and fair comment avails the Respondent in the circumstances of the case.
On this issue, the learned Appellant’s counsel argued that the learned trial judge never resolved the issue of whether the Respondent established the defence of justification to escape liability. The Appellant argued that in paragraph 6 of the statement of claim the Appellant pleaded and reproduced the libelous words contained in Exh.”A” complained of. Further in paragraph 9 of the statement of claim, the Appellant pleaded that the said words are altogether false, baseless and totally a figment of the Respondent’s imagination calculated to defame him out of malice. The Appellant also in paragraph 2 of the Reply to the statement of defence gave particulars of the said malice. Respondent in paragraph 2 and 3 of his statement of defence admitted writing the said libelous matter and pleaded justification and insisted that what he stated about the Appellant there are true. In other words, counsel argued, the Respondent asserted that the Appellant is indeed a thief, professional tout who converts and divert other lawyers’ briefs, fraudster, dubious person, common criminal, deceptive and untrustworthy person, one who misappropriates peoples money and also portrayed the Appellant as unit for his calling as a lawyer.
Learned Appellant’s counsel further submitted that it is pertinent to note that in an action for libel or slander a Defendant should not merely plead justification. Rather he should prove the facts which he reliefs upon as justifying same. It is then for the court to decide on the basis of the facts proved whether or not same was justified. He cited ODUTOLA v. WEST AFRICAN PILOT & ANOR. (1960) LLR 27. Counsel argued that the Respondent failed to plead particulars of justification. This is very necessary to avoid taking the Appellant by surprise. Also evidence in proof of justification ought to be present before the trail court but this was not so in this case. Counsel argued that even though the Respondent pleaded justification in his statement of defence, his oral evidence during the trial did not detail any of the set of facts pleaded as contained in paragraph 6 & 7 of the letter. Appellant’s counsel argued that the Respondent’s pleadings did not detail the particulars of fraud as required by Order 24 r 5(1) & 6 (1) and (2) of the Abia State High Court (Civil Procedure) Rules 2001. He cited OKONKWO v. C.C.B. NIG. PLC (2003) 13 NSCQR, Pg.6898 at Pg.692-693.
Counsel argued that Respondent having failed to prove the deceit and fraud alleged in his letter, the paragraph of the statement of defence must be deemed abandoned. He cited NKUMA v. ODILI (2006) 25 NSCQR 687 at 692; NEWBREED v. ERHOMOSELE (2006) 26 NSCQR Pg.47 at 53.
Appellant argued that the Respondent did not justify the defamatory words in paragraph 7 of Exh.A to the effect that the Appellant is a tout, ambulance chaser, who diverts or solicits other lawyers briefs, a thief who misappropriates his Principal’s money. Appellant argued that in proving hat the said allegation of the Respondent in paragraph 7 of exh. A false, baseless and malicious, the Appellant tendered Exh. E and F – the said letter Appellant wrote to A.A. Ibebunjo, Esq Ibebunjo’s reply thereto respectively. In Exh. F Ibebunjo’s stated clearly that the Respondent did not consult or retain him as per the said suit No.HU/119/2005 and Charge No. US/56C/2005 as they were matters he was not seized of Ibebunjo also stated clearly that the matters were Appellant’s personal matters and which Appellant handled exclusively as such. He equally made it clear that his office or firm is not entitled to any fee from the Appellant’s said matters. Moreso, the said Ibebunjo copied and delivered Exh. F the Respondent. The Respondent did not challenge and/or controvert the facts contained in the said Exh F and same are deemed admitted by the Respondent.
With reference to the defamatory letter wherein the Respondent accused the paragraph 8 of the defamatory letter wherein in Respondent accused the Appellant of being dubious and to have committed a gross professional misconduct on the authority of Barrister Ihm, Appellant argued that the Respondent failed to prove these allegations or to justify them. However, in proving that the allegation in paragraph 8 of Exh. A is false, frivolous and malicious, the Appellant tendered Exhs. C. and D – the said letter the Appellant wrote to the said Barr. Ihim referred to in the said paragraph 8 of exh. A and Barr. Ihim’s reply to the Appellant’s said letter respectively. In Exh. D. the said Barr. Ihim, whom the Respondent referred to as his informant as per the facts in the said paragraph 8 of exh. A, completely and without reservations denied saying any such things as the Respondent alleged or published abour the Appellant. Respondent also did not challenge and/or controvert the facts contained in Exh. D. The said facts are deemed admitted by the Respondent Appellant argued that for justification to succeed, the Respondent must prove the material statement in the libel. He cited OBASUYI v. EZEIGBU (1991) 3 NWLR Pt.181 Pg.585 at 588. Appellant submitted that the allegations of criminal nature made against him by Respondent were such that they must be proved beyond reasonable doubt and if proved the Appellant can be made to suffer imprisonment. Counsel argued that the Respondent failed to prove any of these allegations in the published letter.
Learned counsel for the Respondent on the issue argued that the Respondent was justified to make the marks contained in the letter as fair comments based in his knowledge of the Appellant. Counsel argued that the principle of the defence of justification is that for that defence to succeed, it is not necessary to prove the truth of each and every word comprised in the alleged libel that it suffices if the Defendant establishes the truth and justification of the main substance of the libelous statement. The Respondent’s counsel argued that the main substance of Respondent’s complaint in Exh. H is that Appellant was fraudulent in that he denied receiving monies already paid to him by the Respondent and was seeking to obtain same again.
Counsel argued that the Appellant had in the Bill of Charges Exh. A claimed a total of N=300,000.00 from the Respondent whereas he had cashed a cheques of N=5,000.00 and received a payment of N2,000.00 which he refused to acknowledge in the Bill. Counsel submitted that actual fraud takes the form of a statement which is false or suppression of what is true. By suppressing these payments and attempting to collect them again, the Appellant had acted fraudulently and the Respondent was entitled to state so. He cited VULCAN GASES v. GESELLSCHAFT (20010) 5 SCNJ 55 at 92. Counsel also argued that the Appellant claimed to have “over three years post call experience” when he was only called to the Bar in 2003. Counsel said that this was done to proof seniority at the Bar and to justify the Bill of Charges. He cited SAVANNAH BANK v. OPANUBI (2004) 7 SCNJ 248 at 265. Counsel also noted that the Appellant stated on his letter-headed paper that he had as qualification “LLMIV” which was false.
Counsel also argued that during the trial it was elicited from the Appellant the fact that he had taken an action against the Federal Road Safety Commission claiming the when the commission impounded his car the sum of N200,000.00 given to him by the Respondent was stolen therein. The Respondent had to swear to an affidavit of refutal in order to distance himself from the Appellant’s attempt to defraud the commission.
Respondent’s counsel submitted that it is a complete defence to an action in libel or slander that the defamatory imputation is true. He cited ESENOWO v. UKPONG (1999) 4 SCNJ 109 at 115-119.
Before and since the case of Osear Wilde, the famous English Romantic Poet, the defence of justification has been successfully used as a shield against an action for defamation. It is clear that the Respondent has resorted to the defence of justification to avoid liability in this case. In A.I.B. v. ASAOLU (2006) 5 WRN pg.15 at Pg.69, the supreme court held that
“The defence of justification is such a patent defence in a defamatory suit that it should not be flippantly set up for the sake of merely doing so.”
The tort of defamation concerns damage of the character of the person defamed whether in libel or slander. However, where the evidence discloses that the plaintiff is in fact a crock or liar and his character is successfully impugned, his claim fails perforce and the defence of justification is established. See ILOABACHIE v. ILOABACHIE (2005) 5 SCNJ 264, a true statement written and said about another person can never become defamatory. The written publication must be false and without lawful justification for it to be defamatory. See SKETCHI PUBLISHING CO. LTD. v. AJAGBEMOKEFERI (1989) 1 NWLR Pt.100 Pg.678; ESENOWO v. UKPONG & ANOR (1999) 6 NWLR Pt.608 or (1999) 4 SC (pt.1) Page 56.
In DIGBY v. FINANCIAL NEWS LTD. (1907) 1 KB 502 at Pg.509 Collins MR, said
“A plea of justification means that all the words were true and covers not only the base statement of fact in the alleged libel but also any imputation which the words in their con may be taken to convey.”
The moment the Defendant proves the gist or this sting of the libel to be true a defence of justification has been established so long as it actually injuries the plaintiff’s reputation. See S.5 of the Defamation Law of Abia State.
I have read the Bill of Charges Exh. G on pages 84-86 of the record and the reply of the Respondent Exh. A on pages 87-88 of the record. They both make interesting has justified all the allegations contained in the defamatory letter. I think it would be better to set out Exh.A and 11 (the same letter) in full:
“Dear Oliver,
RE: BILL OF CHAGRES FOR PROFESSIONAL SERVICES RENDERED BY ME: O.O. ANUZIE TO YOU IN SUIT NO. IW/110/2005 AND CHARGES NO. VS/567/2005.
I hereby refer to your letter dated 28/9/2005 and hand delivered to me by you on 11/11/2005 at your new office 512, St. Finbarrs Road, Umuahia with reference to the above subject matter, I reply as follows:
1. That I am surprised to read the contents of your aforesaid letter alleging that I am owing you on the services rendered. You know and I know that you did not at anytime whatsoever render any service to me without you. Oliver collecting your fees up front.
2. It should be noted that each of the letter written in all the cases I paid you one thousand Naira (N1,000.00) each on letter written. I so paid you fifteen thousand (N15,000.00 on each case filed and for every court appearance you collected N2,000.00 per appearance.
3. Accordingly, all these were in line the verbal agreement we had before you look up the brief.
4. I also want to remind you that the listing from 1a-p in case IIU/119/2005 were all paid for.
5. On Charge No.US/567/2005, I want to remind you in case you have forgotten that all the court appearance made by you and Mr. Nwokorie Esq. of Ijeoma Chambers was paid for at the cost of Two thousand Naira (N2,000.00) for each lawyer for every court appearance and all in cash. Also all the paper work was paid accordingly.
6. I also want to tell you that it is very disheartening and at the same time I am highly disappointed that a young lawyer like you can chose to be so fraudulent and deceptive. Your claim that because of my cases you could not attend to your other matters are all but lies, and you know it. You were busy pursuing your LLM and A.B.S.U. at the expense of my case and I never complained and also doing your personal matters like the Road Safety case all these were at my one expense.
7. Also because you are fraudulent and crafty you never told me you were not working for your principal who is my lawyer and who, I consulted for this case. You decided to make it your own personal brief and all such all the money I paid to your Principal through you were not given to him.
8. Finally, I was also reliably informed by Barr. Ihim of your dubious character as a lawyer and how you breached the lawyer/client trust.
I am looking forward to getting in the legal arena with you on this matter.
Thanks
Yours sincerely.
Arch. Chris Asonye
Clearly, the Respondent must prove that the Appellant was “fraudulent and deceptive” as claimed in paragraph 6. He must prove that the Appellant was “fraudulent and crafty” as claimed in paragraph 7 and must prove that Barrister Ihim told him that the Appellant “is a dubious lawyer who breached lawyer/client trust” as claimed in paragraph 8 of Exh.A. To establish a pea of justification, the Respondent in this case must prove that the defamatory imputation is true. He must justify the precise imputation complained of. Thus, strict proof is demanded. At common law, under a plea of justification, the Respondent must prove the truth of all the material statements in the libel. To make a good plea of the whole charge the Respondent must justify everything that the libel contains which is injurious to the Appellant. I plea of justification means that the libel is true, not only in its allegations of fact, but also in any comment made thereon. Although depending on the circumstances, a Respondent is not obliged to prove the truth of every word in the libel, he is however obliged to prove that the main charge or gist of the libel is true. See DIN v. AFRICAN NEWSPAPERS (1990) 3 NWLR Pt.139 Pg. 393; DUMBO v. IDUGBOE (1983) 1 SCNLR 29 and ACB LTD. & ORS. v. APUGO (2001) 5 NWLR Pt. 707 pg.483 pg.496-497.
A person suing for damages in defamation establishes a prima facie cause of action as soon as he has proved the publication of the defamatory words. I do not think that has been done in this case. I have given my reason. However, it is certainly no part of the Appellant’s case to prove that the defamatory words are false for the law presumes this in his favour. See A.B.C. LTD. v. APUGO supra at Pg.496. what then is the gist or the main charge contained in the Exh.A. written by the Respondent? The Respondent’s claim is that the Appellant wants to recover professional fees from him twice and that constitutes fraud on the part of the Appellant.
My own humble impression while comparing the Bill of Charges Exh. G with Respondent’s letter Exh. A is that both parties had different expectations from each other. While the Appellant expected to be paid proper and full professional fee as he deemed fit at the conclusion of service rendered, the Respondent expected him to be satisfied with the pittance already thrown to him. While the Appellant was claiming between N5,000.00 to N10,000.00 per letter written, the Respondent thought that the N1,000.00 per letter already paid to counsel was good enough. While Appellant after successfully concluding the case for the Respondent expected to the paid between him and his partner N1000.000.00 as professional fees, the Respondent thought they should have been satisfied with the N15,000.00 each already paid. The misconception on both sides goes on an don. The Appellant said in Exh. G by way of explanation that:
“The aforesaid sum was agreed between me and you. I only forward this charges to show you how we arrived at the sum and in compliance with your request to do so. You must bear in mind that due to the technical and contentious nature of your cases (both HU/119/2005 and Charge NO. US/56C/2005) I could not attend to other professional engagement for weeks. You must also know that I am a very busy lawyer having over 3 years call experience.”
Contrast this with paragraph 3 of Exh. A. In paragraph 3 of Exh. A, the Respondent claimed as follows:
“Accordingly, all these were in line with the verbal agreement we had before you took up the brief.”
Both men claimed that their stand is based on their own interpretation of the oral agreement between them. Paragraph 1-5 of the Respondent’s letter Ex.A explains his own understanding of the financial relationship between them. In my view, the letter should have ended there.
Now, paragraph 6 of Exh.A called the Appellant “fraudulent and deceptive.” I have read the evidence of the Respondent at the trial, I cannot for the life of me see any where therein precisely what the Appellant did which made him fraudulent and deceptive. The Appellant stated in his Bill that the Respondent’s cases were complex and he wasted time and energy on them. Does the fact that the Appellant had an LLM programme and a personal case in court concurrently with the Respondent’s cases make his statement automatically fraudulent and deceptive and that he did not waste time and energy on the Respondent cases? As to the charge that the Appellant falsely claimed he had an LLM. I am of the view that the Appellant writing LLM (IV) which I take judicial notice of the mean “in view” shows that the Appellant never intended to deceive anyone that he had concluded the programme. Quite the reverse.
I don’t see the relevance as claimed by Respondent’s counsel of the claim of the Appellant against the Road Safety Commission in this case. The Respondent alleged that the Appellant was a dubious character in that he had perjured himself in the affidavit the filed in his case against the Commission that N200,000.00 was stolen from his car when it was impounded. The relevant affidavit where the Appellant swore that he collected the N200,000.00 from the respondent was not tendered as Exhibit. Rather an affidavit sworn to by the Respondent after the exchange of hostile letter was tendered I can’t see how these facts amount to the justifiable conclusion that the Appellant was in general a fraudulent person and in particular was fraudulent and deceptive in the Bill presented. If there is a falling out or disagreement between two people over the terms of a contract of service does that amount to a fraudulent or deceptive character on the part of one of them?
Let us look at paragraph 7 of the letter. The Respondent called the Appellant fraudulent and crafty. The gist of the accusation is that the Appellant was fraudulent and crafty.
“For surreptitiously taking the brief from his principle, handling same and not paying over to the principal all the money paid.”
The principal of the Appellant. Mr. A.A. Ibebunjo in Exh. E. stated that he was too busy to take the Respondent’s case and referred him to the Appellant who took the case and was entitled to the all professional fees. As against the averment in paragraph 10 of his pleadings, the Respondent did not on oath cite an example of breach of trust when the Appellant was handling his case. I have read the evidence on oath of the Respondent on pages 37-42 of the record. According to his own evidence on oath on page 37 of the record he paid the Appellant N1,500.00 as faces on the day he first briefed the Appellant after Mr. Ibebunjo referred him. Nowhere did he say he gave a specific amount of money to the Appellant to be given to Mr. Ibebunjo. He only confirmed giving the Appellant money for transport for court appearance and that he paid him professional fees of N15,000.00 for the criminal matter. He also gave the Appellant a cheques for N15,000.00 which he claimed was for transport while the Appellant claimed it was for drafting an agreement which Appellant claimed was outside the Bill of Charges.
Finally, let us look at paragraph 8 where the Respondent said he was reliably informed by one Barrister Ihim that the Appellant is “a dubious character who was fond of breaching lawyer/client trust” Grave charges indeed. The Respondent who had the burden of proof did not call Barrister Ihim to confirm this allegation neither did he give a single instance of when the Appellant breached client/lawyer trust. As against the averment in Paragraph 10 of his pleadings, the Respondent did not on oath cite any example of breach of trust when the Appellant was handling is cases. It might have been a different matter if the Respondent was complaining about the low quality of professional service rendered to him. Apparently the Appellant concluded the two cases of the Respondent to the letter’s satisfaction.
It is necessary to define the words “actual fraud”, “fraudulent acts” and “deceit” (deceptive) at this juncture. The Black’s Law Dictionary, 7th Edition, defines the words thus “Actual fraud “A concealment or false representation through statement or conduct that injures another who relies on it in acting” page 671, paragraph 2, “Fraudulent act” Conduct involving bad faith, dishonesty, a lack of integrity, or a moral turpitude” page 672 paragraph 24.
However, it should be noted that the word “deceit” (deceptive) is synonymous but not coterminous with “fraud” and four basis ingredients are necessary for it to be proved. That is the Respondent in this case must prove the following to ground justification for calling the Appellant fraudulent and deceitful:
(a) There must be a representation of facts.
(b) The representation must be made with knowledge of its falsity.
(c) It must be made with the intention that it should be acted on by the Plaintiff.
(d) It must be proved that the claimant has acted upon the false statement and has sustained by so doing. See page 413 of Black’s Dictionary – 7th Edition.
I am of the view that the Respondent was not able to prove any fraudulent act, deceit, craftiness, dubiousness or breach of trust on the part of the Appellant. It is very unfortunate that the Respondent decided to add to his legal woes by precipitating this action. His vulgar abuse of the Appellant was totally unjustified. Most time discretion is the better part of valour.
I cannot help but hold that the defence of justification did not avail the Respondent. I resolve this issue against the Respondent. The Respondent’s Notice fails and is hereby dismissed.
The implication of my finding on the first issue that no publication of libel was proved by the Appellant is that no cause of action had ripened against the Respondent. The fact is that in the circumstance of this case, the Respondent was not obliged to prove justification because the Appellant did prove that he published the libel. Exh.A may have wounded and upset the Appellant and may be totally unjustified, it is in law regarded as mere vulgar abuse by one man to another. Until it falls on a third pair of ears or eyes. It does not become slander or libel which can give rise to a cause of action. In the circumstances. I affirm the decision of the trial court. I dismiss the appeal. I make no order as to costs.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I agree with the lead judgment of my learned brother, Ogunwumiju JCA a preview of which I have had that the appeal is totally devoid of any merit whatsoever and ought to be dismissed. All the issues raised in the appeal have been exhaustive treated in the lead judgment.
I also dismiss the appeal and I abide by consequential Order of costs.
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.
Appearances
O. O. Amuzie appears in personFor Appellant
AND
Chidi B. Nworka with him I. NworchaFor Respondent
