MUSA OMIKA v. ALHAJI MALLAM UBA ISAH
(2011)LCN/4717(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of July, 2011
CA/J/158/04
RATIO
PLEADINGS: WHETHER PARTIES ARE BOUND BY THEIR PLEADING AND EFFECT OF EVIDENCE LED ON FACTS NOT PLEADED
The law is trite that parties are bound by their pleading and evidence led on facts not pleaded goes to no issue. See: Emegokwe v. okadigbo (1973) 4 SC 113; Pan Bisbuilder (Nig.) Ltd v. First Bank of Nig Ltd (2000) 1 SC 71; (2000) 1 NWLR (642) 684. PER KUDIRAT M.O. KEKERE-EKUN, JCA
TESTIMONY OF A WITNESS: WHETHER IT IS EVERY AVAILABLE WITNESS THAT MUST BE CALLED TO TESTIFY IN A CASE BEFORE THE CASE CAN BE ESTABLISHED
The law is settled that it is not every available witness that must be called to testify in a case, so long as those who do testify are able to establish the case being made out by a party. The converse is also true: that where a vital or material witness fails to testify such failure would be fatal to the party’s case. PER KUDIRAT M.O. KEKERE-EKUN, JCA
DEFAMATION: WHAT THE WORD “DEFAMATION” ENTAILS
Black’s Law Dictionary, 8th edition at page 448 defines defamation thus: 1. “The act of harming the reputation of another by making a false statement to a third person… 2. A false written or oral statement that damages another’s reputation.” It goes further: “Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally or which tends to make them shun or avoid that person. … The wrong of defamation consist of the Publication of a false and defamatory statement concerning another person without lawful justification. ” The first issue to be considered is whether the words complained of are defamatory. In other words whether the words are “calculated to lower him in the estimation of right thinking men or cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business”. See: Sketch Publishing Co. & Anor v. Ajagbemokeferi (1989) 1 NWLR (100) 678; (1989) 2 SC (pt.11) 73 at 84 lines 1 – 9. The question as to whether the words complained of are in their natural and ordinary meaning defamatory is a question of fact. See: Lewis v. Dairy Telegraph ltd (1964) A.C. 234 – 259 & 260; In an action for defamation it is the court that determines whether the words complained of are defamatory. See: Sketch publishing Co. & Anor v. Ajagbemokeferi (supra); African Newspaper v. Ciroma (1966) 1 NWLR (423) 156 at 163; Ayeni v. Adesina (2007) 7 NWLR (1033) 233 at 254 -. 255 A – E. It was held in Ayeni Vs Adepina (supra) that the first step is for the court to determine the meaning the words could convey to the ordinary person. The case of Okolo v. Midwest (1977) 1 FC 33 was referred to. The court held further that the next step is to consider the circumstances in which the words were published and whether in those circumstances a reasonable person would be likely to understand them in a defamatory sense. See: Okafor Vs Ikeanyi (1979) Vol. 12 NV.CC 43 (1979) 3 – 4 S.C. 99. PER KUDIRAT M.O. KEKERE-EKUN, JCA
DEFAMATION: DUTY OF THE PLAINTIFF TO PROVE THAT THE DEFAMATORY MATTER WAS PUBLISHED
The law is very well defined and fully settled that one basic ingredient of defamation, whether libel or slander, as in the instant appeal is publication. In order to succeed the Plaintiff must prove the fact of publication. In other words the Plaintiff is under a burden to prove that the defamatory matter was published to a 3rd party. And the law requires that the 3rd party must not only be named but must be clearly identifiable and identified. Any failure to properly plead and prove publication is fatal to the case and it is bound to collapse because it is publication that gives the case its cause of action. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
DEFAMATION: WHETHER THE REAL SUBJECT AND AIM OF THE LAW OF DEFAMATION IS TO PROTECT A PERSON’S REPUTATION IN THE ESTIMATION OF OTHER PEOPLE
It is also part and parcel of the law of defamation that a person’s reputation is not in the good opinion he has of himself but in the estimation of other people, or a class of People. It is the protection of that estimation that is the real subject and aim of the law. It is not any estimation, be it emotional, biased or sectional that is protected, but that estimation which has passed the test of reasonableness both in its content and the person holding the estimation. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
JUSTICES
KUDIRAT M.O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
MUSA OMIKA Appellant(s)
AND
ALHAJI MALLAM UBA ISAH Respondent(s)
KUDIRAT M.O. KEKERE-EKUN, JCA (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Benue State, sitting at Makurdi delivered on 31/3/04 awarding the sum of N200, 000.00 as general damages for defamation and assault in favour of the respondent against the appellant. The appellant, who was the defendant at the trial court was dissatisfied with the judgment and filed a notice of appeal dated 7/6/04 containing seven grounds of appeal.
In the appellant’s brief dated 30/9/05, filed on 7/11/05 and deemed filed on 15/11/06 settled by J.S. Okutepa Esq., two issues were formulated for the determination of the appeal thus:
1. Whether the learned trial Judge, Eko, J. was correct to hold upon the evidence before him that the publication of the alleged slanderous words were pleaded and proved as required by law and to proceed to judgment to hold that appellant herein admitted publication of the words and that Exhibit B did not contradict the case of the plaintiff.
Grounds 1, 2,3 and 7.
2. Whether the learned trial Judge, Eko, J. was within jurisdiction to have heard and determined the case of the respondent when the necessary parties were not before him and to proceed in judgment to award an excessive general damages of N200, 000.00 in favour of the respondent and then proceeded to issue a writ of execution against the property of Alhaji Musa M. Omika, the appellant herein. (Grounds 4, 5 and 6).
The respondent, in his brief of argument dated 6/6/07 and filed on 8/6/2010 pursuant to an order of this court granted on 3/6/2010 also distilled two issues from the grounds of appeal as follows:
1. Whether the words complained of were defamatory (slanderous) and same were published to entitle the plaintiff/respondent to judgment. (Grounds 1, 2, 3 and 7).
2. Whether the learned trial Judge had jurisdiction to entertain the suit to its finality. (Grounds 4,5 and 6).
It is pertinent at this stage to make some observations about Grounds 4 and 5 of the notice of appeal. The said grounds with their particulars read thus:
Ground 4.
The learned trial Judge, Eko, J. erred in law when he proceeded with and heard the case of the plaintiff/respondent herein, when he had no jurisdiction to do so and then proceeded in his error to award excessive damages to the plaintiff in the sum of N200, 000.00.
Particulars of Error
(i) Appellant was sued for official job he performed for the Nigerian Police.
(ii) At the time material to this case appellant was a police officer,
(iii) Necessary parties were not before the court, for the court to come to effective decision.
(iv) Personal property/estate of the appellant cannot be put in jeopardy for official job performed.
(v) N200,000.00 awarded to the plaintiff was excessive and in total disregard to general principle of award of general damages.
Ground 5.
The learned trial Judge, Eko, J erred in law when he entered judgment against one Musa Omenka for assault and defamation in the, sum of N200, 000.00 and then proceeded in this error to sign a writ of execution against the property of Alhaji Musa Omika.
Particulars of Error
(i) The pleading of the defendant was that one Musa Omeka assaulted him on 2/2/01.
(ii) No evidence was led of existence of Musa Omeka in the Police Force at the time material to the suit
(iii) Musa Omeka is a fictitious defendant.
(iv) Property of Alhaji Musa M. Omika cannot be taken in execution for a judgment against Musa Omeka.
The law is trite that a ground of appeal must be derived from the judgment appealed against. See: Egbe Vs Alhaji & Ors. (1990) 1 NSCC (Vol.21) (Pt.1) 306 at 332; Dalek Nig. Ltd.Vs OMPADEC (2007) ALL FWLR (364) 204 at 225 F- H.
With regard to ground 4, learned counsel for the plaintiff/respondent on 18/10/2001, before hearing commenced, raised an objection to the defendant/appellant being represented by the Ministry of Justice on the ground that he was sued in his personal capacity and that neither the Inspector General of Police nor the Commissioner of Police were parties to the action. The objection was overruled on the same day. There is no appeal against that decision. The issue of necessary parties being before the court was not raised at the trial. It is therefore a fresh issue being raised before this court for the first time. No leave has been sought or obtained to do so. Ground 4 is therefore incompetent and liable to be struck out.
With regard to Ground 5 the issue of the existence or otherwise of Musa Omeka Was never raised throughout the proceedings at the court ‘below’ and was therefore not addressed in the judgment appealed against. Furthermore, the appeal, is against the judgment delivered on 31/3/2004. The execution of the said judgment, which took place subsequently, cannot form the basis’of a ground of appeal against the judgment. Ground 5 is also incompetent. Grounds 4 and 5 of the notice of appeal are accordingly struck out.
Issue 2 formulated by both the appellant and the respondent covers grounds 4, 5 and 6 of the notice of appeal. Where an issue formulated from an incompetent ground of appeal is argued in the brief of argument along with those formulated from a competent ground or grounds of appeal, it is not the duty of the court to extract ,argument in respect of the valid grounds from the, incompetent ones. This is because to do so might necessitate the court descending into the arena and the dust rising therefrom beclouding its judgment. See Sehindemi v. Governor of Lagos State (2006) 10 NWLR (1987) 1 at 28 A -D Per Salami, JCA. Rather the court is liable to discountenance the argument in its entirety. See Ngige Vs obi (2906) 14 NWLR (999) 1 at 165 C – H Ayalogu Vs Agu (1998) 1 NWLR (532) 129 at 143. Issue 2 formulated by both the appellant and the respondent is therefore struck out for being distilled from competent and incompetent grounds of appeal.
Having examined the sole surviving issue formulated by both parties, I find Issue 1 formulated by the appellant to be verbose and argumentative. The respondent’s issue 1 is concise and adequately addresses the issue in contention in this appeal, I adopt it for the determination of the appeal.
The facts that gave rise to this appeal are as follows: The respondent was the Chairman of the Wadata Vigilante Group. On the night of 1/2/01 the theft of a motorcycle was reported to him. He and some members of the vigilante group conducted an investigation and arrested five suspects. At daybreak on 2/2/01 the respondent took them along with the recovered motorcycle to the Benue State Police Command and handed them over to the Assistant Commissioner of Police, C.I.D., one Benjamin Awe. According to the respondent, as he was leaving Mr. Awe’s office the appellant, a police officer in charge of Criminal Investigation Bureau (C.I.B.) Benue State Police Command, called out to him. He turned and ran towards him to offer greetings. Instead of the reply he expected, the appellant allegedly uttered the following words to him to the hearing of bystanders: “You have no authority to arrest thieves, You are a thief yourself, you kill people by charming them and take monies from the killed you are a dupe. You are finished you will never arrest another person. You are under arrest yourself.” He then raised his hand to slap him but he successfully dodged the slap. Thereafter the appellant allegedly took him back to Mr. Awe’s office where he repeated the assault and slander in the presence of a magistrate, one Mrs. Bakare. Aggrieved by this behaviour, which he alleged was without Justification and occasioned by malice, he took out a writ of summons and statement of claim dated 23/4/01 before the High Court of Benue State, Makurdi. In paragraph 15 of the statement of claim he sought the following reliefs:
15. “WHEREOF the Plaintiff is aggrieved and claim (sic) against the defendant as follows:
(a) a declaration that the assault, harassment and slander of the plaintiff is illegal, unofficial and malicious;
(b) damages for assault and slander limited to N9, 999, 000,00.”
The appellant denied the claim in his statement of defence and averred that even if he uttered the words as alleged (not conceded) the respondent was not a, person of credit and had no reputation worthy of judicial protection. At the trial the respondent called three witnesses. He did not tender any exhibit. The defendant did not testify and did not call any witnesses. However a certified true copy of a petition written by the respondent against the appellant addressed to the Assistant Inspector General of Police dated 2/2/2001 was tendered from the Bar by learned counsel for the appellant and marked Exhibit B. Learned counsel for both parties addressed the court, In a considered judgment delivered on 31/3/04 the learned trial Judge found in favour of the respondent and awarded N200, 000.00 as general damages for defamation and assault against the appellant. The appellant was dissatisfied with this decision, hence this appeal.
In support of the sole issue for determination, learned counsel for the appellant submitted that the respondent failed to plead and prove publication of the defamatory words as required by law. He submitted that publication to unidentifiable persons does not amount to publication, as the name of the person to whom the slander was published must be pleaded.
He submitted that not only must his identity be known, the fact that he heard and understood the words to be defamatory must be pleaded and proved. He submitted that publication is the foundation of an action for defamation. He relied on: NEPA Vs Inameti (2002) FWLR (130) 1695; Salaudeen Vs Mamman (2000) FWLR (17) 1 at 30 C – H; Yahaya Vs Mundika (2000) FWLR (17) 145 at 158 E – F; Anate v. Sanusi (2002) FWLR (93) 1902 at 1922 – 1925 F – B; Ajakaiye Vs Okandeji (1972) 1 SC 92. He referred to paragraph 9 of the statement of claim and maintained that the respondent ought to have identified the bystanders referred to therein or called them to testify.
He submitted further that assuming pleading publication to an unknown group of people is sufficient pleading of publication, such pleading does not envisage or include publication to, persons known to the respondent and who were in his company at the time the publication was made. He referred to the evidence of PW1 wherein he testified that he and one Titus Ahungwa were present when the defamatory words were addressed to the respondent and contended that this fact was not pleaded and that Titus Ahungwa was not called to testify.
He submitted that the respondent did not refer to this fact during his evidence in chief and only mentioned it during cross examination.
He submitted that evidence elicited under cross examination, which was not pleaded is inadmissible. He relied on: Ajukwara v. Izuoji (2002) FWLR (115) 666 at 675; Royal Exchange Assurance Ltd. v. Savannah ventures (2002) FWLR (112) 53; Punch Nig; Ltd. vs Eyitene (2002) FWLR (125) 687. He urged the court to expunge the testimony of PW1 on the issue of publication for not being pleaded. He also urged us to expunge it on the ground that his testimony under cross-examination that only he and Titus Ahungwa were present when the appellant assaulted the respondent is contrary to the respondent’s pleading. He referred to: N.A.C.B, Ltd. v. Ajayi Farms Ltd. (2003) FWLR (150) 1775 at 1785 B-C & 1788 B – C; Mohammed v. Klargester Nig. Ltd. (2002) FWLR (127) 1678 at 1696 B. He noted that the presence of PW1 and Titus Ahungwa was not pleaded in respect of either of the two incidents.
With regard to the second incident he submitted that Benjamin Awe and the magistrate, Mrs. Bakare were material witnesses who ought to have been called to testify and that their failure to testify was fatal to the respondent’s case. He relied on Section 149 (d) of the Evidence Act and the case of: Maigoro Vs Bashir (2000) FWLR (19) 553 at 576 D – E.
He submitted that the testimony of PW1 could not be relied upon as alternative evidence because it was not pleaded that he witnessed the second incident. He argued further that allegations of assault and harassment border on criminality for which reasonable particulars must be specially pleaded and proved. He relied on Section 138 (1) of the Evidence Act and submitted that the respondent failed to discharge the burden by his pleadings and evidence.
He submitted that the averments in paragraph 6 of the statement of claim and paragraph 2 of the respondent’s reply to the statement of defence contradict the respondent’s evidence at page 35 of the record regarding where the suspects were handed over – ‘A’ Division of the Police located at Wadata area of Makurdi or State C.I.D. Headquarters located many kilometres away. He contended that the contradiction is significant because the incident is alleged to have taken place at the Police Headquarters and not ‘A’ Division. He noted that the respondent testified under cross-examination that the area of operation of his vigilante group fell under the jurisdiction of ‘A’ Division, Makurdi. He contended that he could not therefore have gone to the Police Headquarters to hand over the suspects. He also contended that the respondent was alone and not in company of PW1 or any other member of the vigilante group.
Learned counsel referred to Exhibit B and submitted that the respondent’s claim before the court for defamation and assault was an after thought because the particulars therein alleged intimidation and threat to life but did not refer to defamation or assault even though it was written on the day of the incident. He submitted that the said Exhibit casts doubt on the allegations of assault and slander. He submitted that the learned trial Judge was in error to have imputed defamation and assault into the unambiguous allegations of criminal intimidation and threat to life contained therein.
He argued further that the appellant’s plea of justification in paragraph 15 of the statement of defence does not amount to an admission of liability. He submitted that it is mere pleading, which requires proof. He submitted that pleading not supported by evidence is deemed abandoned. He cited the case of: Narindex Trust Ltd. Vs N.I.C.M.B. Ltd (2001) FWLR (49) 1546 at 1558 E – F. He submitted that when the statement of defence is read in its entirety it is clear that there was no intention to admit liability for slander. He referred to: First bank of Nig. Plc v. Excel Plastic Industry Ltd. 2003 FWLR (160) 1624 at 1644 – 1645 G-A. He submitted that the statement of defence goes to no issue, as no evidence was led to support it. See: Sule Vs Ebune (2003) FWLR (138) 1341 at 1350 E – F; Arewa iles Plc. v. Fine Tex Ltd. (2003) FWLR (162) 1985.
He argued that the appellant’s pleading does not discharge the respondent from the onus of proving publication or that slanderous words were uttered. He argued that publication is so crucial to the tort of defamation that it must be proved before any defences are considered. He referred to: Ajakaiye Vs Okandeji (1972) 1 SC 92; Anate Vs Sanusi (supra) at 1927 – 1928 E – A.
In response to the above submissions, learned counsel for the respondent submitted that in an action for defamation, the trial Judge has a duty to rule in the first instance on whether the words complained of are capable of conveying a defamatory meaning at all. He submitted that this is not a question of evidence but of interpretation of the said words. He relied on: Katto v. C.B.N (2001) FWLR (53) 188 at 203 H – A. On the test for determining what is defamatory, he referred to the dictum of Lord Atkin in: Sim Vs Stretch (1936) 2 ALL ER 297. He submitted that the trial Judge is guided by the test of reasonableness. In other, words whether a reasonable man of intelligence to whom the words are published would understand them to be defamatory. See also: Agbanelo v. union Bank Plc. (2000) FWLR (13) 2197 at 2221. He submitted that the words complained of were pleaded in paragraph 9 of the statement of claim and both PW1 and PW2 established the fact by credible evidence. He submitted that the learned trial Judge objectively considered the natural and ordinary meaning of the words and rightly held them to be defamatory.
He submitted that it is a misconception to maintain that the names/identities of the persons to whom the words were published must be pleaded. He submitted that for an action to lie in defamation, the words complained of must be published.
He submitted further that publication means the communication of the words complained of to at least one person (a third party) other than the plaintiff. He referred to: Edoro Vs Gurara Finance & Securities Co. Ltd. (2003) FWLR (142) 9 at 19. He submitted that to prove publication the plaintiff must plead publication of the defamatory words to some persons before the evidence of those who heard the defendant utter those words would become relevant. He referred to paragraph 5 of the statement of claim and submitted that it was in the process of handing over the suspects to the Police by the respondent and members of the vigilante group that the appellant defamed him to the hearing of members of the group and other bystanders. He submitted that the learned trial Judge was right to have accepted and relied on the evidence of PW1 and PW3 as being persons who heard when the appellant defamed the respondent both outside and inside Benjamin Awe’s office. On the appellant’s contention that the respondent did not plead the names of the members of the vigilante group who were with him at the time of the incident, he referred to paragraphs 1 and 4 of the statement of claim and submitted that the averment that he was the chairman of the Wadata Vigilante Group and that the group acted together during the night and the following morning regarding the complaint of theft of motorcycle without mentioning the names of individual members was sufficient to establish the fact that at the time the defamatory words were uttered, the members of the group who were present heard them. He noted that PW1, the secretary of the group testified that he heard the words.
As to whether Benjamin Awe and Mrs. Bakare, the magistrate were necessary and material witnesses, he submitted that all that is required in a claim for defamation is proof that the defamatory words were published to a third party other than the defendant. He submitted that the evidence of PW1 at page 30 of the record fulfilled this requirement. He submitted that each and every publication of defamatory words gives a distinct and separate cause of action. He maintained that the publication to the hearing of PW1 conferred a cause of action on the respondent. He referred to: Offoboche Vs Ogoja Local Government & Anor. (2001) FWLR (69) 1051 at 1066 B-C.
With regard to the submission that the respondent’s evidence was at variance with his pleading, learned counsel submitted that in civil proceedings a party is not bound to lead evidence in proof of all the averments in his pleading provided he has led enough evidence to sustain the claim. He contended that civil cases are decided on the balance of probabilities and if one party adduces credible evidence, which outweighs the evidence of the other party, the former is entitled to judgment. He referred to: Ezukwu Vs Ukachukwu (2004) ALL FWLR (224) 2197 at 2158 C J D; He submitted that PW1 and PW2 were consistent in their evidence in all material particulars. Referring to Exhibit B, learned counsel stated that it was a criminal complaint written by the respondent and addressed to the Assistant Inspector General of Police stating the criminal conduct inflicted on him by the appellant on 2/2/2001, at the State C.I.D. Headquarters, Makurdi. He rejected the appellant’s contention that Exhibit B was an afterthought because it did not complain of assault and defamation and argued that it rather supported his case by showing that he had an encounter with the appellant at the premises of the State C.I.D., Makurdi on the day in question. He submitted that PW3’s evidence at page 41 of the record corroborated the contents of Exhibit B. He contended that Exhibit B further buttressed the particulars of malice pleaded in paragraph 7 of the statement of claim. He submitted that the said Exhibit has probative value and does not create any doubt in the mind of the court.
He referred to paragraph 15 of the statement of defence where the appellant pleaded justification on the ground that facts available to security agencies within and outside Benue State showed that the respondent had no reputation worthy of judicial protection. He noted that the appellant also pleaded that he would rely on petitions written to the police authorities concerning the respondent. He submitted that the averments were not supported by evidence and that pleadings not supported by evidence are deemed abandoned. He relied on: Mohammed Vs Klasgester Nig- Ltd. (2002) FWLR (127) 1078 at 1097 He submitted that Exhibit B rather than advance the appellant’s case showed his prior malicious inclinations towards the respondent. He urged the court to hold that having regard to the failure of the appellant to lead evidence in rebuttal of the respondent’s claims, the respondent had adequately pleaded and abundantly proved the tort of defamation as required by law. He urged the court to resolve this issue in the respondent’s favour.
Black’s Law Dictionary, 8th edition at page 448 defines defamation thus:
1. “The act of harming the reputation of another by making a false statement to a third person…
2. A false written or oral statement that damages another’s reputation.”
It goes further:
“Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally or which tends to make them shun or avoid that person. …
The wrong of defamation consist of the Publication of a false and defamatory statement concerning another person without lawful justification. ”
The first issue to be considered is whether the words complained of are defamatory. In other words whether the words are “calculated to lower him in the estimation of right thinking men or cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business”. See: Sketch Publishing Co. & Anor v. Ajagbemokeferi (1989) 1 NWLR (100) 678; 91989) 2 SC (pt.11) 73 at 84 lines 1 – 9. The question as to whether the words complained of are in their natural and ordinary meaning defamatory is a question of fact. See: Lewis v. Dairy Telegraph ltd (1964) A.C. 234 – 259 & 260; In an action for defamation it is the court that determines whether the words complained of are defamatory. See: Sketch publishing Co. & Anor v. Ajagbemokeferi (supra); African Newspaper v. Ciroma 91966) 1 NWLR (423) 156 at 163; Ayeni v. Adesina (2007) 7 NWLR (1033) 233 at 254 -. 255 A – E.
It was held in Ayeni Vs Adepina (supra) that the first step is for the court to determine the meaning the words could convey to the ordinary person. The case of Okolo v. Midwest (1977) 1 FC 33 was referred to. The court held further that the next step is to consider the circumstances in which the words were published and whether in those circumstances a reasonable person would be likely to understand them in a defamatory sense. See: Okafor Vs Ikeanyi (1979) Vol. 12 NV.CC 43 (1979) 3 – 4 S.C. 99.
The appellant in his pleadings and oral evidence before the court testified that he is a businessman and chairman of the Wadata Vigilante Group Unit in Makurdi. He testified that he was appointed chairman of the vigilante group by members, youth and elders of Wadata. He stated that he is also a herbalist.
Having carefully examined the words complained of, I am of the view that to a reasonable man, those words in their natural and ordinary meaning would be understood to mean that the respondent, who was seen fit to be appointed chairman of the Vigilante Group, was in fact a dishonest man, a thief and someone who is fetish. They would also convey to a reasonable man that the respondent is a murderer who kills people by using charms on them and takes money from them. I have no hesitation in holding that the words complained are defamatory.
It is settled law that in order to succeed in an action for defamation, the plaintiff must prove that the libel or slander has been published. In other words the making known of defamatory matter to some person other than the person of whom it is written or spoken. See: NEPA v. Inameti (2002) FWLR (130) 1695 at 1721 B – F. The Supreme Court in Nsirim vs Nsirim (1990) 5 SCNJ 174 at 183 per Obaseki, JSC held:
“An action for libel must fail if publication of the defamatory matter is not proved. The proof must be given by admissible evidence as it is the publication that gives a cause of action.
The material part of the cause of action in libel is not the writing but the publication of the libel. See Hebolitch v. Macllsvaon (1594) 2 Q.B. 5B at 64 per Lord Esher, MR, per Davey, L.J. Bata v. Bata (1945) W.N. 366; Thompson v. Lambert (1938) 2 D.L.R. 55 S.C. (Canada). The act of publishing the libellous matter constitutes the cause of action. Keefe v. Walsh (1903) 2 LR. 706.
What then is publication? Publication is the making known of the defamatory matter to some person other than the person of whom it is written.”
See also: Edoro v. Gurara Finace & Securities Co. Ltd. (2003) FWLR (142) 9 at 19 F – H; Anate Vs Sanusi (2002) FWLR (93) 1902 at 1920 H – 1921 E.
The learned authors of Gatley on Libel & Slander, 9th edition page 127 paragraph 6.1 explained the rationale for the requirement of publication to a third party thus:
“Defamation protects a person’s reputation and his reputation is not the good opinion he has of himself but the estimation in which others hold him. A defamatory statement about ‘the plaintiff communicated to himself alone may injure his self-esteem but it cannot injure his reputation. … It is not sufficient that the matter has been merely communicated to the third party, It is also necessary that it be communicated in such a manner that it may convey the defamatory meaning and that persons acquainted with the plaintiff could understand it to refer to him.”
While most of the cases referred to deal with written statements that are defamatory, I am of the view that the general principles enunciated therein apply to both oral and written statements of a defamatory nature. I shall proceed to apply the above principles to the facts of this case.
Learned counsel for the appellant argued strenuously both before the lower court and before this court that the respondent failed to prove publication of the alleged defamatory words. He argued that the respondent was bound to plead the name or names of persons to whom the defamatory words were published. Learned counsel for the respondents on the other hand has argued that the pleading in paragraphs 1 and 4 of the statement of claim is sufficient to establish that the respondent was with members of the vigilante group when he was defamed and that the members of the group heard the defamatory words, which therefore amounts to publication. In order to better appreciate the submissions of counsel, it is necessary to reproduce some of the relevant paragraphs of the statement of claim:
1. The plaintiff is a businessman and the Chairman of Wadata Vigilante Group Unit (a voluntary organisation whose object is to combat crime) hereinafter called “The Group”.
2. …
3. The defendant is a public officer in charge of C.I.B. Benue State Police Command, Makurdi also within the jurisdiction of this Honourable Court.
4. Sometimes on the night of 1st February 2001, a case of theft of a motorcycle was reported to the plaintiff in his capacity as chairman of the group by one Mr. Awal Yahaya of No. 68 Sokoto Street, Wadata, Makurdi.
5. Sequel to paragraph 3 above, the plaintiff and some of the members of the group embarked on investigation and on the same night arrested five suspects in connection with the said theft.
6. On the morning of 2nd February 2001 the Plaintiff came to the Benue State Police Command and handed over the arrested suspects to the Police: precisely to the Assistant Commissioner of Police CID Benjamin Awe Esq.
7. Following paragraph 5 above the Plaintiff came out of Mr. Awe’s office proceeded to go so as to embark on his normal business on that day when he heard somebody called out his name from behind him.
8. Turning to that direction, the plaintiff discovered that it was the defendant that called out to him. The plaintiff ran to where the defendant stood and offered greetings.
9. To the utter surprise of the plaintiff, the defendant assaulted and harassed him by falsely and maliciously speaking in very high tone of the plaintiff to other bystanders whose names are presently unknown to the plaintiff thus: “You have no authority to arrest thieves. You are a thief yourself, you kill people by charming them and take monies from the killed you are a dupe. You are finished you will never arrest another person. You are under arrest yourself”.
10. In furtherance of his unjustified but malicious anger, the defendant raised his hand to slap the plaintiff on his face but the plaintiff quickly dodged but was seriously apprehensive of the situation.
11. The defendant then took the plaintiff back to the Assistant Commissioner’s office where he repeated the assault, harassment, threats and slanders.
12. The defendant did this against the advice of the Assistant Commissioner of Police, CID and one Magistrate who all advise the defendant that the plaintiff as a private citizen can arrest a person suspected of committing a crime provided he hand the suspect over to the Police.
13. The plaintiff in consequence was much injured by the defendant’s assault, harassments and slanders both in his credit and reputation.” (Emphasis mine)
It is abundantly clear from the pleadings reproduced above that the respondent identified two groups of persons in whose presence the alleged defamatory words were uttered, apart from himself. They are on the one hand “other bystanders whose names are presently unknown to the plaintiff” and “the Assistant Commissioner of Police, CID and one Magistrate.” The Assistant Commissioner of Police was identified in paragraph 6 as Benjamin Awe, while the identity of the said Magistrate was later disclosed at the trial as Mrs. Bakare. To prove publication therefore, the respondent required the evidence of one of the bystanders, Benjamin Awe or Mrs. Bakare.
The learned trial Judge accepted and relied on the evidence of PW1 and PW2 as proof of publication. PW1 was the secretary of the Wadata Vigilante Group. He confirmed the report of the theft of a motorcycle to the respondent on the night of 1/2/2001. He testified that he, the respondent and other members of the vigilante group arrested five suspects and recovered the missing motorcycle that same night and handed them over to Benjamin Awe the following morning. He stated that he witnessed and heard all that transpired between the respondent and the appellant both within and outside Mr. Awe’s office. He also mentioned that one Titus Ahungwa, a member of the vigilante group was also present. Although the learned trial Judge believed and accepted the evidence of both PW1 and PW2, for the purpose of publication it is the communication to a third party i.e. PW1 that is relevant.
I have taken the pains to carefully examine the statement of claim and the reply to statement of defence in their entirety.
There is nowhere that the respondent pleaded that any member of the vigilante group was with him when the acts complained of took place. Paragraphs 1, 4 and 5 of the statement of claim do not avail him. Paragraph 6 thereof states categorically, “the plaintiff came to Benue State Police Command and handed over the arrested suspects to the Police, precisely to the Assistant Commissioner of Police CID Benjamin Awe, Esq.” Not only did he fail to plead specific names, there is no mention of his being in company of other members of the vigilante group. In paragraph 9 he stated that the defamatory words were spoken by the appellant “to other bystanders whose names are not presently known.” Again there was no mention of PW1, Titus Ahungwa or any other member of the vigilante group. Learned counsel for the respondent has urged us to presume, based paragraphs 1, 4 and 5 of the statement of claim that the respondent was with the members of the group at all times material to this action. With due respect to learned counsel, the court is not entitled to read into a party’s pleadings what is not contained therein. The fact that they conducted the investigation together and jointly arrested the suspects is not conclusive of the fact that they all went to the Police Station to hand them over the following day. Such facts must be specifically pleaded, The law is trite that parties are bound by their pleading and evidence led on facts not pleaded goes to no issue. See: Emegokwe v. okadigbo (1973) 4 SC 113; Pan Bisbuilder (Nig.) Ltd v. First Bank of Nig Ltd (2000) 1 SC 71; (2000) 1 NWLR (642) 684.
The learned trial Judge took the view that the respondent’s pleading satisfied the rule in Nsirim Vs Nsirim (supra), having pleaded that the defamatory words were published to other bystanders whose names were not known to him. In Nsirim’s case, the plaintiff sued the respondent for damages for libel published of and concerning the plaintiff in a document allegedly “circulated by the defendant to all and sundry”. It was alleged in the pleadings that the publication was to editors and reporters of newspapers at a press conference. The plaintiff called a witness who was the News Editor of a newspaper. He testified that he, was given a copy of the of the press statement by one of his reporters, who was not called to testify. The defendant denied the publication. He admitted writing the but stated that he kept it locked in his office.
He alleged that the plaintiff, forced his way into his office, removed the document and published it. He testified that he later changed his mind about addressing the press conference.
The learned trial Judge found in favour of the plaintiff that there was publication and awarded him damages and costs. An appeal by the defendant to the Court of Appeal was upheld on the ground that publication was not proved. The Supreme Court affirmed the decision of the Court of Appeal. Obaseki, JSC held at page 183 lines 37 and 38 and at page 184 lines 32 – 36 (supra):
“The name of the person to whom delivery of the libellous document was made must be pleaded…
If the pleadings of the appellant had shown that the respondent published the defamatory matter to Tons Fetepigi PW1, the evidence of PW1 on the issue would have been admissible If also the pleadings of the appellant had averred that the respondent showed Exhibit A, the defamatory matter to PW1 the evidence would have been relevant and admissible. But these facts were not pleaded.” (Emphasis Mine)
See also: Osayande Vs Etuk (2008) 1 NWLR (1068) 211 at 227 F-G.
In light of the above authorities I hold that the evidence of PW1 whose presence at the scene was not pleaded is inadmissible and goes to no issue. See: George Vs Dominion Flour Mills (1963) 1 SCNLR 117; C.D.C. (Nig) Ltd v. SCOA (Nig.) Ltd. (2007) 6 NWLR (1030) 300 at 341 G – H; Nsieghe Vs Mgbemena (2007) 10 NWIR (1042) 364 at 390 – 391 H: B.
The appellant had also argued that Benjamin Awe and Mrs. Bakare were material witnesses and that their failure to testify was fatal to the respondent’s case, The law is settled that it is not every available witness that must be called to testify in a case, so long as those who do testify are able to establish the case being made out by a party. The converse is also true that where a vital or material witness fails to testify such failure would be fatal to the party’s case. In the instant case, Banjamin Awe and Mrs. Bakare were material witnesses to the publication of the defamatory words. They were not called to testify. No explanation was given for not calling them.
In the circumstances of this case, the evidence of PW1 having been found to be inadmissible, publication could only have been proved through these two witnesses whose names were duly pleaded. It follows from all that I have said above that the respondent failed to prove publication of the alleged defamatory words to a third party other than himself. As publication is the foundation of an action for defamation, the failure was fatal to his case and the respondent was not entitled to the reliefs sought. Having held that the respondent failed to prove publication, I do not deem it necessary to consider the other submissions made in respect of this issue.
The evidence regarding the alleged assault was also given by PW1 whose presence at the scene was not pleaded. The sole issue for determination is accordingly resolved in favour of the appellant.
In conclusion therefore, the appeal succeeds and is hereby allowed. The judgment of the Benue State High Court in suit No. MHC/99/2001 delivered on 31/3/2004 is hereby set aside. The said suit is hereby dismissed. The parties shall bear their respective costs in this appeal.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have before now read in draft the judgment just delivered by my learned brother, Kekere-Ekun , JCA. I entirely agree with his reasoning and conclusions.
For the purpose of the concurring comment I hereby rely on the facts of this matter as set out in the lead judgment.
The law is very well defined and fully settled that one basic ingredient of defamation, whether libel or slander, as in the instant appeal is publication. In order to succeed the Plaintiff must prove the fact of publication. In other words the Plaintiff is under a burden to prove that the defamatory matter was published to a 3rd party. And the law requires that the 3rd party must not only be named but must be clearly identifiable and identified. Any failure to properly plead and prove publication is fatal to the case and it is bound to collapse because it is publication that gives the case its cause of action.
It is also part and parcel of the law of defamation that a person’s reputation is not in the good opinion he has of himself but in the estimation of other people, or a class of People. It is the protection of that estimation that is the real subject and aim of the law. It is not any estimation, be it emotional, biased or sectional that is protected, but that estimation which has passed the test of reasonableness both in its content and the person holding the estimation.
In the instant appeal, the Plaintiff/Respondent had pleaded in paragraph 9 of his claim that:-
“To the utter surprise of the Plaintiff, the Defendant assaulted and harassed him by falsely and maliciously speaking in very high tone of the Plaintiff to other bystanders whose names are Presently unknown to the Plaintiff thus: ‘you hove no authority to arrest thieves you are a thief yourself, you kill people by charming them and take monies from the killed, you are a dupe. You are finished; you will never arrest another person. You ore under arrest yourself.”
The allegation in this averment is that the words were brought to the attention and hearing of bystanders who the Plaintiff did not know. For the purpose of defamation by slander, the words in this paragraph could suffice and could be taken to have conveyed a slanderous effect. But it is not just about the words. The publication of the words is so fundamental to the proof of the claim.
Perhaps in his effort to prove publication, the Plaintiff/Respondent called and relied on the evidence of PW1 and PW7, members of his vigilante group. These are people he all along knew and who were seemingly together with him of the scene of the event. However, his pleadings fell short of naming them in any proper manner whatsoever. For the Purpose of defamation and publication thereof, the persons to whom it was published must be properly identified in the pleadings.
Bystanders are an amorphous and amoebic group of persons. They could be identified later by their faces or names or both. The Plaintiff had the opportunity to do so at the trial but failed to do so when he relied on the evidence of persons he did not identify in his pleadings.
In the circumstance of this appeal, I hold that the evidence of PW1 and PW2 whose presence at the scene of the event was not pleaded was totally inadmissible as it was of no moment.
For these reasons, and the more detailed reasons of my learned brother in the lead judgment, I too would, and do allow this appeal and set aside the judgment of the Benue State High Court in suit No. MHC/00/2001 delivered on 31/3/2004. I also make no order for costs.
UCHECHUKWU ONYEMENAM, J.C.A.: I have read in draft the judgment of my learned brother, Kekere-Ekun JCA., I agree with the conclusions. I have nothing to add to it.
Appearances
P.H. OGBOLE ESQ. with M.O. OZUEHFor Appellant
AND
TERSOO IGBAFor Respondent
