HIS EXCELLENCY, MR. AYO FAYOSE V. INDEPENDENT COMMUNICATIONS NETWORK & ORS
(2012)LCN/5278(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of March, 2012
CA/AE/58/2010
RATIO
TORT: ELEMENTS OF PROVING LIBEL
In proof of a libelous publication or to sustain an action for libel, the plaintiff must prove that:
(a) There was a publication.
(b) The publication was false.
(c) The publication was in writing.
(d) The publication was made to a person apart from the plaintiff and the defendant.
(e) The publication referred to the said plaintiff.
(f) The publication was made by the defendant.
See Iloabachie V. Iloabachie (2005) 4 FWLR (Pt.281) 469 SC at 511, Paras. E-F; Guardian Newspaper & Anor Vs Ajeh (2011) 1 PELR – SC. 234. PER SOTONYE DENTON WEST, J.C.A
TORT: EFFECT OF FAILURE TO PLEAD ACTUAL WORDS IN AN ACTION FOR DEFAMATION
More so, it is of necessity in an action for defamation either libel or slander, that the actual words complained of and not merely their substance must be set out verbatim in the statement of claim. It is on the perusal of the actual words complained of as pleaded that the court will determine whether or not the words convey defamatory meaning. Failure to plead such actual words is fatal to the plaintiff’s case. See. Olaifa Vs Aina (1993) 4 NWLR (Pt286) 192; Okafor Vs. Ikeanyi (1979) 1 NWLR (PT 100) 678; Olaniyi Vs Elero (2008) All FWLR (Pt.411) 975 at 986 Paras C-E. PER SOTONYE DENTON WEST, J.C.A
TORT: EFFECTS OF A DEFAMATORY STATEMENT
Similarly, the tort of defamation has to do with injury to the reputation of a person resulting from words written or spoken by others against him. A defamatory statement has the following effects:
(a) To lower the plaintiff in the estimation of right thinking members of the society generally; or
(b) To expose him to hatred; contempt or ridicule; or
(c) To cause other persons to shun or avoid him; or
(d) To discredit him in his office, trade or profession; or
(e) To injure his financial credit.
Thus, to succeed in an action for libel, the plaintiff, must establish the aforementioned as the effects of the defamatory publication of him. See Olaniyi V. Elero (Supra) at 983 Paras A-C. PER SOTONYE DENTON WEST, J.C.A
EVIDENCE: ONUS OF PROOF IN AN ACTION FOR DEFAMATION
Generally, the onus is on the plaintiff to show that the published words complained of are defamatory or that they convey a defamatory imputation. However, where the words complained of are defamatory in their natural and ordinary meaning, the plaintiff has no legal duty to lead any evidence to show additional defamatory meaning understood by persons possessing some particular facts. PER SOTONYE DENTON WEST, J.C.A
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
HIS EXCELLENCY, MR. AYO FAYOSE
(EXECUTIVE GOVERNOR, EKITI STATE) – Appellant(s)
AND
1. INDEPENDENT COMMUNICATIONS NETWORK
2. MR. BAYO ONANUGA (EDITOR-IN-CHIEF
3. MR. BABAFEMI OJUDU (Managing Editor)
4. RICHARD ELESHO – Respondent(s)
TOM SHAIBU YAKUBU, J.C.A (Delivering the Leading Judgment): On the 19th March, 2009, the High court of Justice, Ado-Ekiti presided over by A.S. Daramora, J., dismissed the action of the appellant who was the plaintiff in the suit No: HAD/81/2004. The plaintiff in that action had claimed the sum of one Billion Naira (N1bn) as damages against the respondents, for libel published of him and contained in The News Magazine, Vol .23, No.18 Edition of 8th November, 2004 The caption in the said magazine was “My brother is wild and cruel – The shocking Testimony of Governor Fayose’s sister.” one Peter Morakinyo Ogele also, in the said publication, had addressed a press conference wherein he stated in a thereat, that the appellant had wanted to kill him; which precipitated the action against the respondents.
The parties called witnesses at the trial and at the end of which, written addresses were filed and exchanged between them. The trial court, in its judgment found for the respondents and dismissed the claim.
This appeal is sequel to the dismissal of the plaintiff’s action.
The appeal is anchored on six grounds. The appellant, in prosecuting the appeal filed his brief of argument dated 16th September, 2009 on 26th September, 2009. In it, the appellant identified three issues for determination as follows:
“1. whether the Honourable trial Judge was right in relying on exhibit “C” and “G” and also relying on the events that happened after the libelous Publications in dismissing the Plaintiff’s claim.
2. whether there are admissible evidence on record for the defence of Justification found in favour of the respondents by the Honourable trial court.
3. Whether a judge can Substitute his personal feelings or knowledge of a litigant for facts adduced in evidence in arriving at a decision in his judgment.”
The respondents, filed their briefs of argument dated 14th March, 2011, on the same date and on the 21st June, 2011 with the leave of this court, the same was deemed as having been properly filed and served. The respondents distilled four issues for determination in their brief of argument, to wit:
“1. WHETHER the learned trial judge was night when he said that there was no evidence that the Appellant, “was shunned, hated, despised and ridiculed by right thinking people on the basis of the alleged libel by the Defendants,” (Ground IV).
2. WHETHER there was a basis for the learned trial judge to have held that the evidence of the Appellant that “chicken and eggs from the poultry were on sale and also being exported outside country were an obvious lie”. (Ground VI).
3. WHETHER the respondents were able to justify the alleged libelous publication complained of by the Appellants (Grounds V).
4. WHETHER the learned trial judge was right relying on Exhibits “C” and “G”. (Grounds I, II, III).”
The appellant, on receipt of the respondents’ briefs of argument, filed a Reply brief of argument dated 5th July, 2011; on the same date.
Learned counsel to the respective parties, at the hearing of the appeal on 20th February, 2012, each adopted their briefs of argument, above mentioned.
Mr. Owoseni Ajayi, learned counsel to the appellant, arguing Issue No. 1, submitted that the issue for the determination of the learned trial judge was predicated on a libelous publication at the instance of the respondents on 8th November, 2004 and the appellant led evidence to that effect.
Learned counsel, however submitted, that the respondents tendered in evidence a Newspaper Publication dated 13th March, 2006 which contained a report of the State Security Services (SSS) and the same was received into evidence as Exhibit “C”.
He contended that the said Exhibit “C” is of doubtful origin since no staff of the State Security Services (SSS) who were said to have made it, was not called as a witness and that the learned trial judge heavily relied on Exhibit “C” to dismiss the appellant’s claim. Furthermore, Mr. Ajayi submitted that the allegation contained in Exhibit “C” being criminal in nature, must be proved beyond reasonable doubt and must be clear and unequivocal. He referred to SPDC (Nig.) Ltd. Vs. Olanrewaju (2003) FWLR (pt.540) 1640 at 1663; Aderounmu vs Olowu (2000) 4 NWLR (pt.652) 253 at p.364; Garuba vs K.I.C.I.D (2005) 5 NWLR (Pt.917) 160 at P.176.
Mr. Ajayi, submitting further, contended that any document emanating from the state security services, being a public document, ought to be certified before they can be admitted into evidence vide Sections 109 – 112 of the Evidence Act. He relied on Ukachukwu Vs Uba (No.2) (2005) 1 NWLR (Pt.930) 370 at p.381 and that on the authority of Awuse Vs Odili (2005) 16 NWLR (pt.952) 416 at pp.509 – 510, where a person who did not make a document tenders it in cour1, such a document even if admitted, the trial judge should not attach any probative value to it because that person cannot be cross-examined on the document, he being not the maker and cannot answer any question arising from it – being documentary hearsay.
Concluding his submission on this issue, learned counsel, contended that since the learned trial judge had earlier at page 106 of the records of appeal, found that the respondents, pleaded justification for the libelous publication on matters which occurred after the suit was instituted, he ought not have turned round to rely on Exhibit “C” which was published in 2006 whereas the actual publication complained of by the appellant was in 2004.
Arguing issue 2, Mr. Ajayi adopted his earlier submissions on Issue 1, but further submitted that the reliance of the learned trial judge on Exhibit “G” which was a proceedings of an Election petition Tribunal, where the appellant was neither a party nor a witness, was in error, therefore the respondents could not have claimed a defense of justification on the said Exhibit “G” where some witnesses gave evidence in respect of certain utterances of the appellant on an election day. Furthermore, that since the allegations made against the appellant in Exhibits “C” and “G” border on the commission of some crimes for which he could be made to suffer physically by way of punishment, the imputation of crime is actionable per se, without proof of damages. He relied on Guardian Newspaper Ltd Vs Ajeh (2005) 12 NWLR (PT.938) 205 at P.229.
Mr. Ajayi, again submitted that Exhibit “G” being not between the appellant and the respondents and the appellant had no opportunity to cross-examine the witnesses who made some statements in it in reference to the appellant, was irrelevant and ought not to have been relied upon by the learned trial judge. He referred to Ameyo Vs Oyewole (2009) 8 NWLR (Pt. 1142) 1 at P.12; Paras D-G.
Learned counsel urged us to hold that the learned trial judge relied on wrong criteria and irrelevant factors when he preferred the evidence of the respondents to that of the appellant. He relied on Alabi Vs Doherty (2005) 18 NWLR (Pt.957) 411 at P.432; paras E-G; and that if Exhibits “C” & “G” were knocked off, the defence of justification by the respondents, would fail Learned Counsel, finally argued his issue 3 to the effect that the learned trial judge al pages 104 and 110 of the Records of Appeal, made certain remarks about the appellant, which were not borne out of the evidence before him, but from his personal knowledge of the appellant. And that since the findings of the learned trial judge were not borne out of the evidence before him, those findings were perverse and that this court has the power to interfere with those perverse findings of the learned trial judge He retied on Anyakora Vs Obiak or (2005) 5 NWLR (Pt.919) 507 at p.szg; paras A-G; Oju Local Government vs INEC (2007) 14 NWLR (pt.10 54) 242 at PP.272 – 273, Paras D-H.
Learned counsel, concluding his submissions, contended that a court is not competent to make a case for the parties. He relied on N.B.C.I. Vs Integrated Gas Nig Ltd (2005) 4 NWLR (pt. 916) 617 at p. 655: paras D-G. He urged us to resolve this issue in favour of the appellant and allow the appeal Mr. Femi Falana, the learned counsel for the respondent, raised a Notice of Preliminary Objection at paragraph 3.00 of the respondent’s brief of argument pursuant to order 10 of the Rules of this Court The ground for the objection is the proliferation of issues and formulation of issues outside the grounds of appeal.
Learned Counsel, firstly submitted that issues one (1) and two (II) were formulated from ground in the notice of appeal and by so doing, the appellant proliferated the issues which is not permissible in law. He referred to Union Bank of Nigeria Vs Ntik (2003) WRN 46; Akpabuyo Local government Vs Dike (2001) 20 WRN 20, to the effect that it tantamounts to proliferation of issues where a ground of appeal is split into more than one issue. Therefore, he urged that issues one (I) and two (II) formulated from ground one by the appellant, be struck out.
Secondly, Mr Falana, submitted that whereas the appellant indicated that issue two was formulated from grounds I and IV of the notice of appeal, the said issue two anchored on the question of justification did not arise from both grounds I and IV. He argued furthermore that it is only ‘Ground V’ which relates to the issue of justification and the same ‘Ground V’ was covered in issue one formulated by the appellant. He urged that issue two has no nexus with grounds I and IV from where it was formulated and the same ought to be struck out.
In respect of issue three (III), Mr. Falana submitted that although the said issue is anchored on ground VI of the notice of appeal, it is vague and unrelated to any of the grounds of appeal.
He furthermore contended that in arguing issue three, the appellant challenged the findings of the trial court, without a ground of appeal, ventilating a complaint against the findings of the trial court in respect of the propriety of political office holders who enjoy immunity from litigations, to sue other citizens.
Learned counsel submitted that the issue of immunity raised by the learned trial judge was an obiter dictum and that in any event, the appellant neither raised it in any of his grounds of appeal nor did he obtain the leave of this court to raise it as a fresh issue. He referred to B.J Express and chemical Ltd Vs K.R.P.C. Ltd (2003) 24 WRN 74; Dodo vs Solanke (2006) WRN 121 at p.146; Incar Nig. plc & Anor vs Bolex Enterprises (Nig) Ltd (2001) WRN 116. He urged us to uphold the preliminary objection and strike out the three issues formulated by the appellant in this appeal.
Turning to the appeal proper, Mr. Falana argued the Respondents’ issue one (1) by submitting that although the Appellant’s complaint was against the alleged libelous publication by the respondents in the November 8, 2004 Edition of The News Magazine captioned “MY BROTHER IS WILD AND CRUEL THE SHOCKING IESTIMONY OF GOVERNOR FAYOSE’S SISTER”, which was tendered and admitted into evidence as Exhibit “A”, he limited his complaint to the allegation by one M.P. Ogele on page 17 of Exhibit “A”, but deliberately failed to reproduce the entire publication Learned Counsel submitted that the entire libelous publication complained of by a plaintiff ought to be reproduced in the statement of claim to enable the trial court determine whether the words complained of, convey defamatory meaning He referred to Olaniyi Vs Elero (2007) 8 NWLR (pt.1037) 517 at p.530 to the effect that in an action for defamation either in libel or slander, the actual words complained of and not merely their substance must be set out verbatim in the statement of claim, in order for the court to determine whether or not the words complained of convey defamatory meaning. He contended that the appellant herein, did not plead “the actual words complained of” but merely an extract of the statement published by the respondents.
Mr.Falana furthermore, submitted that there was no evidence by the appellant’s witness PW1, that the appellant’s reputation became lower in the estimation of people as a result of the publication in Exhibit “A” and that the PW1 only said he was shocked when he saw the bold headline contained in Exhibit “A” in respect of the appellant, Learned Counsel also submitted that whereas the appellant pleaded in his statement of claim that he was defamed by the publication in Exhibit “A”, PW1 – his only witness did not testify to the fact that the said publication in Exhibit “A”, made him to shun the appellant and that the appellant was bound by his pleading to the effect that he was defamed by the publication in Exhibit “A”. He referred to Lambo Vs Adetunji (2006) 33 WRN 132. And that the finding by learned trial judge that the publication in Exhibit A to the effect that the appellant wanted to kill M.P. Ogele, Esq., was defamatory in nature, but that the trial judge’s finding that there was “no shred of evidence that the plaintiff was shunned, hated, despised and or ridiculed by right thinking people on the basis of the alleged libel by the Defendants”, has not been demonstrated to be perverse. He urged that this issue be resolved in favour of the respondents’ Arguing his issue two, Mr. Falana submitted that the learned trial judge, rightly found on the evidence before him, that the evidence by the appellant that “chicken and eggs from the poultry were on sale and also being exported outside the country were an obvious lie” because of the pieces of evidence extracted from the appellant under cross-examination. Learned counsel referred to pages 121 and 122 of the Additional Records of Appeal to demonstrate the inconsistencies contained in the evidence of the appellant relating to the poultry project/farm, which was why the learned trial judge found that the appellant’s evidence in that regard was an obvious lie.
Regarding his issue three, Mr Falana submitted that in justifying the publication in Exhibit “A” which the appellant said defamed him, the respondents called two witnesses such as Mr. Ogele (DW1) who confirmed that he indeed addressed a press conference in Lagos wherein he cried out over the plan of the appellant to kill him Furthermore, that it was the alert by Mr. Ogele which prompted the presidency to mandate the state security services (sss) to investigate the allegations of extrajudicial killings in Ekiti state under the appellant’s regime as Governor of that state and it was the report of the state security service of their investigation which was tendered and admitted into evidence through the DW1 as Exhibit “C” (the publication by the respondents of the sss report). Mr. Falana also submitted that DW2 Mr. Babafemi Ojudu, the 3rd respondent, testified to the fact that the allegation that the appellant had planned to kill Mr. Ogele was first investigated by the respondents and confirmed before Exhibit “A” was published. And that the same DW2 testified to the fact that the appellant had led a team of armed soldiers and thugs on 3rd April, 2004 to disrupt the Local Government election in Ekiti south west Local Government which was why a certi1ed true copy of the Ekiti State Election Petition Tribunal was tendered and admitted into evidence and marked as Exhibit “G”.
Learned Counsel furthermore, submitted that even though there was evidence by the appellant having been the Governor of Ekiti state, a politician and a leader in the Peoples’ Democratic party and also the Chairman of PDP’s Forum and that he was shocked by the publication in Exhibit “A”, the appellant never said that he was shunned or avoided by right thinking people in Ekiti State at the material time. He relied on Daily Sketch Vs Ajagbemokeferi (1989) 1 NWLR (Pt.100) 678 where the Supreme Court held that from the publication of the words complained and “published of and concerning the Respondent, he was not avoided or shunned, nor was his status lowered in the estimation of right-thinking men of his community; nor was he exposed to hatred, contempt or ridicule. There was no evidence that the imputation on him was injurious to him in his office, profession, trade or business.” In the circumstances, Mr. Falana submitted that the respondents justified the publication in Exhibit “A”. He urged that the respondents be commended for discharging their constitutional duty by exposing the appellant, for engaging in violence, thuggery, corrupt practices and abuse of office contrary to his oath of office as a State Governor. He referred to the decision of Oyo State High Court in Sobayo Vs Daily Times (1977) 4 OYSH SAC (Pt.1).
On his issue four (4), Mr. Falana submitted that since Exhibit “C” was pleaded in the respondents’ amended statement of defence and admitted in evidence without objection, the learned trial judge rightly relied on it He referred to the decision of this court in Akinola Vs university of Ilorin (2004) 35 WRN 79.
Learned Counsel also submitted that Exhibit “C” is not the report of the State Security Services (SSS) which investigated the allegations of extra-judicial killings in Ekiti State during the tenure of the appellant as the Governor of that State, but the said Exhibit “C” was a publication of the sss report by The News Magazine And that nothing prevents a Newspaper or Magazine from publishing the report of a Government Panel which had not been officially released. He referred to Bello-osagie Vs Concord press Ltd reported in Nigeria Law Publications Ltd and the Press by Chief Gani Fawehinmi; Nigerian Law Publications Ltd., 1986. p. C910 at C918, a judgment of the High Court of Edo State.
Learned counsel in reaction to the contention of the appellant that Exhibit ‘C” was published in 2006 whereas the actual publication was in 2004, submitted that although the law is that evidence in libel matters, must be confined to the several bad character of the plaintiff prior to, or at the time of the publication, there are exceptions to the general rule, such as in the assessment of damages, the conduct of the plaintiff and the fact that the plaintiff was being maintained in the action by a business competitor of the Defendant might be a material consideration.
He referred to William vs West African Pilot (1961) All NLR 866 to the effect that in the assessment of damages in a libel suit, the court may take into consideration the conduct of, the Defendant before the action, after the institution of the action and in court during the trial. He relied on Goddy Vs Odhams Press Ltd (1966) 3 All E.R. 369.
Referring to SPDC Nig Ltd vs Olanrewaju (supra) and Aderoumu vs Olowu (supra) relied upon by the appellant, learned counsel submitted that the pieces of evidence by the DW1 and DW2 on the criminal allegations made against the appellant, were clear, cogent and compelling.
And in respect of Garba Vs K.I.C.D (supra) also relied upon by the appellant, Learned counsel submitted that the origin of Exhibit “C” was not dubious because both the appellant and PW1 confirmed the contents of Exhibit “C” and the same was corroborated by the DW1 and DW2 as being the report of the state security services published by the Respondents. In respect of Guardian Newspapers Ltd vs Ajeh (supra) relied upon by the appellant, Learned counsel conceded that the allegations in Exhibit “C” are actionable per se, but that the appellant never sued the state security service which produced the report and the respondents for publishing it (?) He also submitted that if a man of bad character is properly so described, no action will lie in defamation. He relied on Dia Vs African Newspapers Nig Ltd (no citation!) He however, submitted that even if this Court holds the view that Exhibit “C” ought not to have been admitted into evidence, the facts contained in it were pleaded by the respondents.
Regarding Exhibit “G”, Mr. Falana submitted that it was pleaded and at its admission into evidence through the DW2, it was not objected to by the appellant. He referred to Amaechi vs INEC (2008) 10 WRN 1 at p.117 to contend that since the appellant was of the peoples’ Democratic Party and he (appellant) engaged in the violent disruption of the local government erection in order for his party to win, he cannot now turn round to claim that he was not a party to the proceedings in Exhibit “G” and that after all, elections are won by political parties.
In any event, Learned Counsel concluded that even if this Court holds the opinion that the learned trial judge ought not to have placed reliance on Exhibit “C” and “G”, the reliance placed on them did not occasion any miscarriage of justice. He urged that this issue be resolved in favour of the respondents. And that the appeal be dismissed while the judgment of the learned trial judge should be affirmed.
In his Reply brief of argument, Mr. Owoseni Ajayi for the appellant submitted that the preliminary objection by the respondents offends Order 10 Rule 1 of the Rules of this Court, 2007, because according to him, the respondents ought to have filed an application on notice to the appellant, giving him three (3) clear days notice thereof before the hearing of the appeal and not raising the preliminary objection suo motu in the respondent’s brief of argument. He urged that the said objection be struck out for being incompetent.
Responding to the appellant’s contention that there are proliferations of issues by the appellant, Mr. Ajayi submitted that all the issues for determination arose from the grounds of appeal contained in the notice of appeal as indicated in paragraph 4 of the appellant’s brief of argument. And that the respondents merely reframed the appellant’s issues raised for determination, in their own brief. He urged that the preliminary objection be discountenanced by this Court.
Learned Counsel, responding to the contention of the respondents in respect of Exhibit “A” and that the appellant did not sue on the interview granted the junior sister of the appellant, submitted that the appellant was at liberty to sue whom he wanted and that parties and the court are bound by the issues submitted to the court for determination. He referred to the Supreme Court decision in Orunengimo Vs Egede (2007) 15 NWLR (Pt. 1058) 630 at p.064: Paras. G-H, to the effect that “an issue not raised in the pleadings and therefore not tried at the court of trial cannot be .raised at the appellate court through ingenuity of counsel.”
Responding to issue four of the respondents, Mr. Ajayi Submitted that the admission into evidence of Exhibit “C” and “G” did not compel the learned trial judge to rely heavily on them, in dismissing the appellant’s action. He relied on Shittu Vs Fashawe (2005) 14 NWLR (Pt. 946) 671 at P.690; Paras E-G, where the apex court opined, that:
“A court is expected in all proceedings before it to admit and act only on evidence which is admissible in law under the Evidence Act or any relevant enactments, if a court inadventently admits inadmissible evidence, it has the duty not to act on it. The rule is very strict such that where a court wrongly admits the inadmissible evidence, it ought as a duty to disregard the inadmissible evidence in the consideration of the judgment in the matter and even where such evidence has been wrongly admitted and acted upon and whether or not the opposing party objects or not, an appellate court has the duty to exclude such evidence and decide the case only on the legally admissible evidence”.
In effect, the Learned Counsel to the appellant, still urged us to hold that the admission into evidence and the heavy reliance on Exhibit, “C” and “G” by the learned trial judge, were in error.
Mr Falana, at the hearing of the appeal, offered oral argument in response to the appellant’s contention that the respondent’s preliminary objection was wrongfully raised in their briefs of argument and submitted that the preliminary objection raised in the respondents’ brief of argument tantamounts to a notice to the appellant to respond to it and this the appellant did by filing a Reply brief. He referred to Halimco (Nig) Ltd (2006) 13 WRN 75 at p.93; Magit Vs University of Agriculture, Makurdi (2005) 19 NWLR (Pt. 959) 211 at P. 239 and urged that the objection to the preliminary objection be overruled.
I propose to deal first with the contention of Mr. Ajayi, to the effect that the Notice of Preliminary Objection by the respondents is incompetent for its non-compliance with Order 10 Rule 1 of the Rules of this Court, 2007 because the respondents did not put the appellant on notice and suo motu raised the preliminary objection in their briefs of argument.
Now, Order 18 Rule 7 of the Court of Appeal Rules, 2011, says to wit:
Respondent may without leave, include arguments in respect of a cross-appeal, or a Respondent’s notice in his brief for the original appeal and the Gross-appeal or Respondent’s notice”.
Thus, a respondent who has any application to make in respect of a pending appeal, can without the leave of this court, raise the objection in a Respondents’ notice in his brief of argument, and proffer argument in support of the objection, in his brief of argument, without necessarily filing a Notice of Preliminary objection, formally. The essence of indicating in the respondents’ brief of argument, a notice of Preliminary objection is to enable the appellant to respond to it in a Reply brief of argument, upon the service of the respondents’ brief of argument on the appellant.
The supreme court in Charles Chikwendu Odedo vs Independent National Electoral Commission (INEC) (2008) 7 SCNJ 1 at pg.25, provided a guide as to how a preliminary objection can be raised in a brief of argument. It is to be raised under a conspicuous title or heading of “PRELIMINARY OBJECTION” followed by the grounds of the objection and supported with the argument thereon. Further see. Chief Emmanuel Osita Okereke vs Alhaji Umaru Musa Yar’Adua & Ors (2008) 5 SCNJ 1; Ralph Uwazurike v. Attorney General of the Federation (2007) 2 SCNJ 369 at P.380; Ajide vs Kelani (1985) 3 NWLR (Pt. 12) 248.
I have perused the Respondents’ briefs of argument dated 14th March, 2011 and at page 3: paragraph 3.00, the NOTICE OF PRELIMINARY OBJECTION was conspicuously given therein; the grounds for the objection were also stated and thereafter the arguments on the preliminary objection were proffered by learned to the respondents. I am therefore satisfied that the notice of preliminary objection, by the respondents, is competent and I shall proceed to consider and determine it.
Learned counsel to the respondents submitted that there is a proliferation of issues by the appellants because issues one and two formulated by the appellants were from ground 1 in the notice of appeal and this is not permissible in law.
The appellant, in his brief of argument on page 2 paragraph 4 thereof indicated that:
“Issue No. 1 covers grounds 1, 2, 3 and 5 of the notice of appeal. Issue No. 2 covers grounds 1 and 4”.
Unarguably, issues No. 1 and 2 were distilled from ground 1, albeit with other grounds of appeal Mr Ajayi for the appellant, had no answer to the contention of Mr. Falana, for the respondents, on this vital issue of law Thus, I take it that he has conceded to it. The law is that a ground of appeal is not to be split into two issues. That is, a ground of appeal is not to carry two issues or put in another way, two issues are not to be formulated from a ground of appeal. See the more recent decision of the Supreme Court in Adekunle Teriba Vs Ayoade Tiamiyu Adeyemo (2010) 4 SCNJ 59 at P.67.
Thus, whilst one issue for determination is permitted to be distilled from one ground of appeal or two or more grounds of appeal, two issues for determination cannot be distilled from one ground of appeal, otherwise both the issues and the ground of appeal will be liable to be struck out as being incompetent. See: Odoemena Nwaigwe & Ors Vs Nze Edwin Okere (2008) 5 SCNJ 256; Yadis Nig. Ltd. Vs Great Nigeria Insurance Co. Ltd. (2007) 5 SCNJ 86.
In the circumstances of this appeal, it is crystal clear that issues one and two formulated for determination by the appellant were distilled from ground 1 of the notice of appeal. This is wrong and in consequence, issues one and two, with ground l are liable to be struck out.
Furthermore, Mr. Falana submitted that contrary to the stand of the appellant that issue II was formulated from grounds I and IV, the said issue II relates to the question of justification which is not the complaint in either ground I or IV of the notice of appeal.
I have myself perused ground 1 of the notice of appeal. The complaint in it is in respect to the reliance on an inadmissible document by the learned trial judge, when the maker of the said document was not called as a witness at the trial. On my perusal of issue II, it clearly seeks to ventilate on the defence of justification by the respondents as found by the trial Court.
Therefore, issue II is not in tandem and does not flow from ground 1 of the notice of appeal.
The law is that, an issue for determination must flow from and be supported by a ground of appeal. see Jimoh Garuba vs Isiaka Yahaya (2007) 1 SCNJ 352; Khaled Chami vs UBA Plc (2010) 2 SCNJ 23 at P.36.
Ground IV of the notice of appeal from where the appellant also formulated issue II, does not seem to provide any support for the said issue II. Ground IV is a complaint against the finding of the learned trial judge that “there is no shred of evidence before me is this matter that the plaintiff, a very popular politician was shunned, hated, despised and ridiculed by right thinking people on the basis of the alleged libel by the defendants.”
This, unarguably has no relationship with whether or not the defence of justification was available to the respondents as indicated under issue II. Therefore, again the said issue II has no support from Ground IV of the notice of appeal. So, on all premises, issue II is infirmed and incompetent. In consequence, Grounds I and IV are incompetent, since no valid issue had been formulated from them for determination in this appeal, by the appellant.
Thus, since issue II did not emanate from either Ground 1 or IV of the notice of appeal, it is incompetent and liable to be struck out. See: Military Administrator for Ekiti State & Ors Vs prince Benjamin Adeniyi Aladeyelu & Ors (2007) 5 SCNJ 1; Chief peter Amadi Nwankwo & Anor Vs Ecumenical Development co-operative society (EDCSs) U.A. (2007) 2 SCNJ 89; Unity Bank Plc & Anor Vs Mr. Adward Bouari (2008) 2 SCNJ 116; Anuonye Wachukwu & Anor vs Amadike Owunwanne & Anor (2011) 5 SCNJ 197.
Having found that issue 1 is incompetent, it means that grounds I, II, III and V of the notice of appeal, from where it emanated, each have no valid issue formulated from them for consideration and determination in this appeal.
It is settled that appeals are considered and determined on the issues raised for determination and successfully canvassed or ventilated by the parties and not on the grounds of appeal simpliciter which generated no valid issues for determination, See: Niger Construction Ltd Vs Okingbeni (1957) 4 NWLR (Pt.404) 787; Chief A.A. Adeogun & Anor Vs Honourable Fashogbon & 2 Ors (2011) 3 SCNJ 342 at 359. Hence, issue I with grounds I, II, III, and V are each struck out. So also, issue II being incompetent, for not having emanated from either ground I or IV of the notice of appeal, must be struck out together with the said ground IV which has no valid issue formulated from it for consideration and determination of this appeal. Hence, the said issue II with ground IV are each struck out.
Learned counsel to the respondents, next, challenged the formulation of issue III by the appellant, as being vague and unrelated to any ground of appeal. I have perused ground VI of the notice of appeal from where issue III was formulated I am satisfied that issue III is clearly supported by ground VI of the notice of appeal. That is, issue III, emanated from and it is related to ground VI. I shall therefore consider and determine this appeal on issue III Vis-a-vis ground VI of the notice of appeal In effect, the preliminary objection succeeds in part only in respect of issues I and II vis-a-vis grounds I, II, III, IV and V of the notice of appeal. The law is that once a preliminary objection succeeds in respect of some issues for determination in an appeal, there will be no need to go further to consider the arguments proffered on those issues formulated for determination which have been found to be infirmed and incompetent. See: Mosoba Vs Abubakar (2005) 6 NWLR (Pt. 922) 460; NEPA Vs Ango (2001) 15 NWLR (pt. 737) 627 at 645-6 46; Ralph Uwazurike & Ors Vs Attorney General of the Federation (2007) 2 SCNJ 369 at p.380; B.A.S.F. Nig. Ltd vs Faith Enterprises Ltd (2010) 1 SCNJ 223 at P.249.
In the circumstances of this appeal, it is therefore inexpedient to waste precious judicial time, to consider issues I and II formulated for determination by the appellant. However, we have the duty to consider and pronounce on the valid issue III raised by the appellant See: Saburi Adebayo Vs Attorney General of Ogun State (2008) 2 SCNJ 352 at P.362. I, shall therefore proceed to consider and determine this appeal on appellant’s issue III accordingly.
I had earlier in this judgment, rehashed the submissions of both counsel in this appeal in respect of issue III by the appellant and issue II by the respondents as to whether the remarks/finding by the learned trial judge at page 110 of the records of appeal relating to the evidence by the appellant that “chicken and eggs from the poultry were on sale and also being exported outside the country, were an obvious lie”, were borne out of the evidence on the records or from the learned judge’s personal knowledge of the appellant.
I have painstakingly perused the ipse-dixit of the appellant in respect of the poultry farm project and whether or not “chicken and eggs from the poultry were on sale and also being exported outside the country…” See pages 121 and 122 of the Additional Records of Appeal. Hear the appellant, to wit:
“You can buy chicken if you want now but the products of the farm are not meant to be consumed locally. A foreigner could also buy chicken in Ekiti State today. As I speak, about 30 Thousand birds are getting to the stage of cropping in Ado-Ekiti, chicken could also be bought at five other centres.”
From the above testimony by the appellant regarding the poultry farm project, the latter was a thriving and productive business in Ekiti State.
Answering another question under cross-examination, the appellant made a volt-de-face and reversed himself, when he testified that, inter alia:
“As of now, the state Government has not made any money from the project because it has not been completed.
Despite that I do not know the total amount already paid to the contractor, I am in a position to say I am satisfied with the pace and level of the project.”
The clear inference drawn from the latter testimony of the appellant was that the poultry project was yet to be completed.
Therefore, he could not be telling the truth in his earlier testimony that chicken were already being produced from the poultry farm and could be purchased by a foreigner in Ekiti State!
To my mind, it is against the backdrop of the inconsistent pieces of evidence by the appellant relating to the poultry project which led to the finding by the learned trial judge at P.110 of the records of appeal, to the effect that the appellant was a liar. Hear the learned trial judge, to wit:
“I should say here again that the impression which the plaintiff conveyed when he testified before me was that of one who was palpably averse to the truth.
He denied the very obvious and invented fictitious stories which were plainly laughable. When he was cross-examined on the status of the poultry business that his government was heavily involved in them, he testified that chicken and eggs from the poultry were on sale and being exported out of this country, an obvious lie.”
In my considered opinion, the learned trial judge was within the law and his province, having watched the appellant in the witness box testify and contradicted himself in respect of the poultry farm project, when he rightly found that the appellant was an untruthful and unbelievable witness. The learned trial judge was very modest in his description of the appellant as a liar, not because of the former’s personal knowledge of the appellant, but because of the inconsistent pieces of evidence given by the latter in respect of the poultry farm project. See. Melford Agala & 9 ors Vs Chief Benjamin Okusin & 3 Ors (2010) 4 SCNJ, 1 at p.18 where my Lord Mukhtar, JSC, succinctly restated the law, that:
“A trial judge at the stage of writing a judgment and making findings and decisions, appraises the evidence of each side of the divide, and give the evidence of each side the probative value it deserves before arriving at a just conclusion of the case. In the process of doing so he determines which of the relevant evidence to believe, whether they are contradicted or not because he had the singular advantage of listening and watching the demeanour of the witnesses.”
Indeed, if there is a complaint that a trial judge did not make findings based on the evidence placed before him, the appellate court is in as good position as the trial court to do its own evaluation of the evidence contained in the records of appeal.
See: Narumai & Sons Nig. Ltd Vs Niger Benue Transport Co Ltd (1989) 2 NWLR (Pt.106) 730. And where the appellate court finds that there are inadequacies on the part of the trial judge in reaching his decision or finding that is perverse, the appellate court has a duty to examine the inferences and conclusions drawn by the trial judge and then re-evaluate the evidence in order to come to its own judgment, to see that justice is done. See: Atolagbe Vs Shorun (1985) 1 NWLR (Pt.2) 360; Eki Vs Giwa (1977) 2 SC, 131; Lion Building Ltd Vs Shadipe (1976) 12 SC 135.
A perverse finding is when it runs against and counter to the evidence led and the pleadings of the parties or where it has been shown that the trial judge took into consideration or account of matters which he ought not to have taken into account or shuts his eyes to the obvious. See: Akinloye Vs Eyiola (1968) NWLR 92; Isah Onu & Ors Vs Ibrahim Idu & Ors (2006) 6 SCNJ 23 at Pg. 45 – 46.
In the circumstances of this case, the appellant has failed woefully to demonstrate that the finding of the learned trial judge was perverse. To my mind, it would have been perverse if the learned trial judge had said that the appellant was a truthful witness, which he certainly was not. And if a piece of evidence is not true but a lie, the person who gave that piece of evidence is an untruthful witness.
I should say a word on the records of appeal transmitted to this court on 28th September, 2009. It surreptitiously, did not contain the pages in the records of proceedings of the trial court on 13th June, 2006 when the appellant was cross-examined by Mr. Femi Falana, for the defendants/respondents. And if not for the compilation of the Additional Records of Appeal at the instance of learned counsel to the respondents, this court could have been denied the truth of the existence of the cross examination of the appellant on this matter.
It is tantamount to trying to cover the sun or the moon with one’s finger. But nothing can be done against the truth, but for the truth. It is sad that a game of hide and seek usually associated with little children can be played by adults, to this court. It is reprehensible and unacceptable. I say no more.
I am certain and of the firm opinion that issue III has no merits and it is resolved against the appellant. Ground VI of the notice of appeal therefore fails.
The appeal is devoid of merits and I accordingly dismiss it. I affirm the judgment of the Ekiti State High Court on Suit No: HAD/81/2004, delivered on 19th March, 2009. I award cost of N50, 000.00 only against the appellant, in favour of the respondents.
SOTONYE DENTON WEST, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, Tom Shaibu Yakubu, J.C.A., just delivered. I wholly align myself with his reasonings and conclusions therein, that the appeal is devoid of merit and should be dismissed.
The case of the defendant herein referred to as the respondents was that the plaintiff herein referred to as the appellant sued the respondent at the court below claiming the sum of one Billion Naira (N1bn) as damage for libel published of him (the appellant) and contained in the News Magazine Vol.23 No.18 Edition of 8th November, 2004. The Caption in the said Magazine was: “My brother is wild and cruel – the shocking testimony of Governor Fayose’s sister” One Peter Morakino Ogele also, in the said publication had addressed a press conference wherein he stated in a thereat that the appellant had wanted to kill him; which precipitated the action against the respondents.
The parties called evidence at the trial court and at the end of which written addresses were filed and exchanged between them. The trial court in its judgment found for the respondents and dismissed the appellant’s claim.
Having concurred with the lead judgment, I would however seek to comment as follows:
In proof of a libelous publication or to sustain an action for libel, the plaintiff must prove that:
(a) There was a publication.
(b) The publication was false.
(c) The publication was in writing.
(d) The publication was made to a person apart from the plaintiff and the defendant.
(e) The publication referred to the said plaintiff.
(f) The publication was made by the defendant.
See Iloabachie V. Iloabachie (2005) 4 FWLR (Pt.281) 469 SC at 511, Paras. E-F; Guardian Newspaper & Anor Vs Ajeh (2011) 1 PELR – SC. 234.
More so, it is of necessity in an action for defamation either libel or slander, that the actual words complained of and not merely their substance must be set out verbatim in the statement of claim. It is on the perusal of the actual words complained of as pleaded that the court will determine whether or not the words convey defamatory meaning. Failure to plead such actual words is fatal to the plaintiff’s case. See. Olaifa Vs Aina (1993) 4 NWLR (Pt286) 192; Okafor Vs. Ikeanyi (1979) 1 NWLR (PT 100) 678; Olaniyi Vs Elero (2008) All FWLR (Pt.411) 975 at 986 Paras C-E.
Similarly, the tort of defamation has to do with injury to the reputation of a person resulting from words written or spoken by others against him. A defamatory statement has the following effects:
(a) To lower the plaintiff in the estimation of right thinking members of the society generally; or
(b) To expose him to hatred; contempt or ridicule; or
(c) To cause other persons to shun or avoid him; or
(d) To discredit him in his office, trade or profession; or
(e) To injure his financial credit.
Thus, to succeed in an action for libel, the plaintiff, must establish the aforementioned as the effects of the defamatory publication of him. See Olaniyi V. Elero (Supra) at 983 Paras A-C.
Generally, the onus is on the plaintiff to show that the published words complained of are defamatory or that they convey a defamatory imputation. However, where the words complained of are defamatory in their natural and ordinary meaning, the plaintiff has no legal duty to lead any evidence to show additional defamatory meaning understood by persons possessing some particular facts.
Therefore for the Appellant herein to have succeeded at the trial Court, it should be based on the above and foregoing provisions of the law.
Defamation however, is not without a defence. Justification is a complete and a veritable defence to an action for libel or slander, that the defamatory imputation is true. Simply put, the truth of the imputation is an answer to the action because the law presumes that the plaintiff has no right to a character free from that imputation, and If he has no right to it, he cannot in justice recover damages for the loss of it. He is not entitled to benefit from the loss of a reputation he is not entitled to. See Iloabachie Vs Iloabachie (Supra) at 517 paras A-D; Amorc Vs Awoniyi (1991) 3 NWLR (PT. 178), 245.
The finding of the trial Court as contained at page 110 of the records of appeal herein, may not have been borne out of the personal knowledge of the trial Judge. However the assertion or inference that the appellant is “a liar” as contained therein, is to my mind a little too weighty and harsh. For decency purposes, I hereby refuse to refer to the Appellant as a liar even if there are contradictions in his evidence at the trial court. Courts are sacred
CHIDI NWAOMA UWA, J.C.A: I read before now the draft of the judgment delivered by my learned brother Tom Shaibu Yakubu, JCA, who has meticulously resolved the issues in this appeal.
I agree with his reasoning and conclusion arrived at in dismissing the appeal for lacking in merit and affirming the judgment of the trial court of 19th March, 2009.
I abide by the order made as to costs.
Appearances
Owoseni Ajayi, Esq.,For Appellant
AND
Femi Falana, Esq., (with him, Michael Afolayan, Esq.,)For Respondent
