MR. AKINWUNMI GIWA v. HON. OLA JONES JEJELOLA (2014)

MR. AKINWUNMI GIWA v. HON. OLA JONES JEJELOLA

(2014)LCN/7112(CA)

In The Court of Appeal of Nigeria

On Friday, the 11th day of April, 2014

CA/B/294/2007

RATIO

CIRCUMSTANCE IN WHICH A FALSE OR DEFAMATORY STATEMENT MAY BE DEEMED MADE ON AN OCCASION OF QUALIFIED PRIVILEGE

Truly, it is trite law that a statement made about a person may be false and defamatory of him yet the person may not be able to maintain an action of defamation on it if such a statement is made on an occasion of qualified privilege. In such a case, the law does not presume the existence of malice in the making of such a statement. A privilege occasion arises if the communication is of such a nature that it could be fairly said that those who made it had an interest in making such a communication, and those to whom it was made had a corresponding interest in having it made to them. When these two things co-exist the occasion is a privilege one.
See, Alhaji K.A. Giwa v. S.A. Ajayi & 3 ors (1993) 5 NWLR (pt. 294) 423 at 425. PER MOJEED ADEKUNLE OWOADE, J.C.A.

JUSTICES

SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria

Between

MR. AKINWUNMI GIWA Appellant(s)

AND

HON. OLA JONES JEJELOLA Respondent(s)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal and a cross -appeal against the judgment of B.A. Adejumo, J. of the High Court of Justice, Ondo sitting at Ondo delivered on 9/1/2003.
The Respondent as plaintiff issued a writ of summons accompanied by a statement of claim dated 6/12/1999.
By paragraph 48 of the Respondent’s Statement of Claim, he claimed against the defendant/appellant as follows:
(a) A declaration that the letter written by the defendant as above pleaded referred to the plaintiff and is defamatory of him.
(b) An order for Aggravated Damages in the sum of N10, 000.000.00 (Ten Million Naira Only) subject to court fees.
(c) An order of perpetual injunction restraining the defendant, his agents, and/or servant from writing and or publishing any further defamatory matter whatsoever and howsoever of and concerning the plaintiff.
Pleadings were filed and exchanged. The Respondent gave evidence and called six (6) other witnesses to testify in his favour. The Appellant did not witness but called six (6) witnesses who gave evidence in support of his case.
The case is an action for libel, contained in a letter, Exhibit D published of and concerning the Respondent. The appellant, a Legal Practitioner, wrote Exhibit D alleging that the respondent, a retired Chief Magistrate, on contract demanded and received a bribe of N3,000 in the course of his official duty. The Appellant admitted both the authorship and publication of Exhibit D but denied that the allegation therein contained was defamatory. He pleaded the defence of justification, absolute privilege, qualified privilege and fair comment.
The respondent was queried by the Hon. Chief Judge of Ondo State on the bribery allegation and the respondent replied to the query with a denial of the allegation. Both query and reply were never before the trial court.
The learned trial judge upon the totality of the evidence before him, held that the respondent had been libeled by the appellant.
He refused the claim of aggravated damages but awarded nominal damages of N100,00.00. He also made a restraining order of perpetual injunction.
Dissatisfied with this judgment, the Appellant filed a Notice of Appeal (containing 10 (ten) grounds of appeal before this court on 21/1/2008.
Also, by leave of the Honourable Court, the Respondent filed a solitary ground of cross-appeal on 2/3/2010. The Appellant nominated seven (7) issues for determination from the ten (10) grounds of appeal filed. They are:
(i) Whether the delivery of the judgment in this suit by the learned trial judge seven (7) months after address of both counsel with regard to the peculiar nature of this case has not occasioned a substantial miscarriage of justice.
(ii) Whether the learned trial judge was right in his judgment in this case by holding that the defence of justification cannot avail the appellant.
(iii) Whether the learned trial judge was right in his judgment in this case by holding that the defence of qualified privilege cannot avail the appellant.
(iv) Whether the learned trial judge has the right to have unilaterally transferred this case to himself from one judicial division to another judicial division without the fiat or consent of the Honourable Chief Judge of Ondo State.
(v) Whether the basis upon which the learned trial judge awarded a nominal damages, sum of N100,000.00 (One Hundred Thousand Naira Only) in favour of the Respondent is proper and known to law.
(vi) Whether the learned trial judge properly evaluated the evidence before him in this case before arriving at his judgment.
Learned Counsel for the Respondent filed a Notice of Preliminary Objection and argued as follows
That Appeal Ground 2 is Vague, imprecise and without particulars. That it has no issue based on it for determination and should be struck out having been deemed abandoned.
Also, that Appeal Grounds 3 and 9 have no issue(s) raised from them for determination of the appeal and therefore liable to be struck out as they are equally deemed abandoned.
Learned Counsel submitted further that Ground 7 upon which issue 4 of the Appellant’s brief of argument depends is a fresh point never raised or canvassed throughout the trial at the lower court. He argued that for such fresh point to be competently raised on appeal, the prior leave of the appellate court is required. But, that the appellant neither sought nor obtained such leave.
Learned Counsel for the Respondent submitted further that following the objection in respect of Ground 7, the appellant’s issue 4 based on the incompetent Ground 7 also fails for incompetence in tandem with the principle that issues must be predicated upon valid grounds of Appeal and if not such issues cannot stand.
In sum, the Respondent prays this court to strike out Appeal Grounds 2, 3, 7 and 9 together with issue 4 (four) based on the incompetent ground 7.
The Appellant did not furnish any reply to the preliminary objection of the learned counsel for the Respondent.
I do agree with the submissions on the Respondent’s preliminary objection in its entirety. Appellant’s Ground 2 has no issue based on it and it is liable to be struck out. A ground of appeal on which no issue is formulated is deemed abandoned.
See: Anie v. Chief Ugagbe (1995) 6 NWLR (pt. 102) 425 at 432, R.T.A.A.N. v. NURTW (1992) 2 NWLR 381 at 391.
Similarly Grounds 3 and 9 of the grounds of appeal have no issue(s) raised from them thus the grounds are equally deemed abandoned.
See also: Osafile & Anor V. Paul Odi & Anor (1994) 2 SCNJ 1 at 9, Atoyebi & Anor V. Governor of Ondo State. (1994) 2 SCNJ 62 at 78, Are V. Ipaye (1986) 3 NWLR 416.

Finally, on this score, Ground 7 of the Appellant’s grounds of appeal raises a fresh issue without leave of court.
Consequently, the said Ground 7 and issue 4 based on the incompetent ground 7 are incompetent and liable to be struck out.
See, Agwam Obioha & ors v. Chief Nwofor & ors (1994) 10 SCNJ 48, Attorney General, Oyo State V. FairLakes Hotels Ltd (1988) 12 SC (pt. 1) at 53 -54, Amadi V. Ovisakwe (1997) 7 NWLR (pt. 511) 161 at 170.

From the aforegoing, the Respondent’s Notice of preliminary objection is upheld. Grounds 2, 3, 7 and 9 of the Notice and Grounds of Appeal together with issue four based on the incompetent ground 7 are struck out.

In dealing with the main appeal, having struck out Appellant’s issue 4, the Appellant’s issue 5 will be numbered as issue 4 while his issue 6 will be renumbered as issue 5.

The learned Counsel for the Respondent adopted the Appellant’s issues as formulated.

On issue 1, Appellant submitted that the judgment of the trial court in this case having been delivered seven (7) months after the address of counsel, contrary to section 294 of the 1999 constitution of the Federal Republic of Nigeria, it has occasioned a substantial miscarriage of justice as a result of the inordinate delay between the conclusion of the trial and the delivery of the said judgment.

He submitted that the learned trial judge could not have made use of the advantage of seeing and observing the demeanor of the witnesses who testified before the court as a result of undue delay and/or long intervals between the addresses of the counsel and the delivery of judgment.

Appellant submitted that on page 110 of the records, the counsel to the Plaintiff (now Respondent) completed his address during which the case was adjourned to the 27th day of March, 2002 for the Appellant to reply on points of law which said reply was submitted to the trial court as a written address on 27/5/2002 as directed and which was the time the case was adjourned for judgment i.e. from 27/5/2002 to 9/1/2003 which is over seven (7) months:

Appellant further submitted that contrary to the statement by the learned trial judge at page 131 of the records, that there was no time and no where in the records that both counsel agreed to the delivery of the judgment in this suit outside the mandatory statutory period of three months. That, the Appellant did not agree to such.

Appellant then made specific references to the evidence of PW1 at pages 32 to 38 of the records, DW1 at pages 47 to 48 of the records, DW3 at pages 122 to 123 at the records and also to aspects of the addresses of both counsel on page 88 to 109 of the records, which the Appellant considered were not taken into consideration in the delivery of the judgment by the learned trial judge.

The appellant added that none of the legal authorities cited was utilized by the trial court in its judgment. Also, that as a result of delay in delivering the judgment in this suit, the court’s evaluation of evidence does not bear the mark of freshness and its findings of facts were not supported by credible evidence He referred to the following cases.
James Ogundele V. Dare Julius Fasu (1999) 9 SCNJ 105 at 107, Danbaki Gufwat & 12 ors V. The State (1994) 2 NWLR (pt. 327) page 435 at 445, Ngozi Anyafulu v. Vincent Agazie (2007) All FWIR (pt. 334) 143 at 149, Emmanuel Atungwu & 1 or V. Chief Ada Ochekwu (2005) 9 WRN 125 at 132 to 133, Olokotintin V. Sarumi (1997) NWLR (pt.480) 222 at 232, Igwe V. Kalu (2002) 26 W RN 58 also (2002) 5 NWLR (pt. 761) 678.

He urged us on account of this issue to set aside the judgment of the trial court.

Learned Counsel for the Respondent started on issue 1 by saying that indeed as remarked by the Learned trial judge at page 131 of the records, the parties agreed to the delivery of the judgment outside of the three (3) months period stipulated by the 1999 constitution and the Respondent supported and confirmed the authenticity of the record of proceedings in this regard. Counsel reproduced the provision of sections 294 (1) and (5) of the 1999 constitution and argued that no judgment delivered in breach of section 294 (1) will be set aside, as a matter of course. He argued that section 294 (5) is the inevitable hurdle which the appellant, in this case has to cross before he can reap any benefit of section 294 (1) of the 1999 constitution. That, a duty is thus cast on the appellant to satisfy this court that he has by the delayed delivery of judgment, suffered a miscarriage of justice.

On this, learned counsel referred to the cases of Chief Adegoke Ojagbamila & ors V. Chief Lejuwa & ors (2005) 3 FWLR (pt. 269) 13 at 23 -24, Rossek V. ACB Ltd (1993) 8 NWLR (pt. 312) 382 at 465, Okonkwo v. Udoh (1997) 9 NWLR (pt. 519) 16 at 20 -21.

Learned Counsel referred to the Black’s Law Dictionary 6th Edition page 999 for a definition of “Miscarriage of justice” and then submitted in the words of Ogundare JSC (of blessed memory) in Uka & Anor V. Irolo & ors (2002) 7 SC (pt. II) 77 at 108 that to constitute a miscarriage of justice there must be such “a departure from the rules which permit all judicial proceeding as to make what happened not in the proper sense of the word judicial procedure at all”.

He referred also to the case of Ojo & ors V. Anibire & ors (2004) 5 SCNJ 56.

Learned Counsel noted that a search for a miscarriage of justice in any given case must require an in-depth examination of the cause of action, the evidence on record, the findings of fact and the judgment based on the findings. He argued that the cause of action in this case is libel to which the defendant/appellant pleaded the defense of justification among others. That, he was expected to prove his case by evidence that the respondent did receive a bribe of N3,000.00 in the course of his official duty as a Chief Magistrate.

Learned Counsel then went through the evidence of the six defence witnesses DW1 – DW6 as evaluated by the learned trial Judge particularly from pages 47 – 60 of the records. By these, Learned Counsel submitted that the evidence of the defence witnesses demonstrated the irredeemable weakness of the case of the appellant which he said would not warrant calling in aid the provision of section 294 (1) of the 1999 constitution on ground of delayed delivery of judgment. He furthered that in the poor state of evidence of the defence and the erroneous negative finding of the trial court on it, the appellant has suffered no miscarriage of justice by the delayed delivery of judgment.

He referred to the cases of Ojokolobo v. Alamu (1967) 3 NWLR (pt. 61) 377, Shaba Dauda Pita & ors V. Danjuma Gunduma Kadara & ors (2005) FWLR (pt. 270) 123 – 124.

In determining issue 1, we must remind ourselves that the provision of section 294 (1) of the 1999 constitution (as Amended is subject to the provision of section 294 (5) of the same constitution. The provision read as follows:
“294 (1) every court established under the constitution shall deliver its decisions in writing not later than Ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof”.
“294 (5) The decision of a court shall not be set aside or treated as a nullity solely on the ground of non – compliance with the provision of subsection (1) of this section unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof”.

It has since been understood since the introduction of sub-section (5) into the constitution that non-compliance with the Ninety day rule for the delivery of a judgment is no longer sacrosanct. The modern view by the introduction of subsection (5) of section 294 is for the party relying on the non-compliance to satisfy the appeal court that he has suffered a miscarriage of justice by reason thereof.

The Black’s Law Dictionary 6th Edition page 999 defines the expression “miscarriage of justice” as “a reasonable probability of more favourable outcome for the Defendant”.
The definition goes further to state what considerations would warrant a reversal of judgment by reason of miscarriage of justice as follows:
“a miscarriage of justice warranting reversal shall be declared only when the court after examination of the entire cause including evidence is of the opinion that it is reasonably probable that a result more favourable to the appealing party would have been reached in absence of the error”.

I have carefully gone through the records of proceedings in the instant case and I believe that the appellant has failed to discharge the burden that he has suffered a miscarriage of justice by the delivery of the judgment of the court 7 months after the taken of addresses by counsel. To constitute a miscarriage of justice there must be in the words of Ogundare JSC in the case of Uka & Anor V. Irolo & ors (2002) 7 SC (pt. 11) 77 at 108 “a departure from the rules which permit all judicial proceeding as to make what happened not in the proper sense of the word judicial procedure at all”
See also: Ojo & ors V. Anibire & ors (2004) 5 SCNJ 56.

Issue 1 is resolved against the Appellant.

On issues 2 and 3, Appellant submitted that the sting of libel is the publications contained in Exhibits “A” and “D” which is an allegation of the collection of the sum of N3,000.00 bribe made by the Appellant against the Respondent. He submitted that the allegation was found to be true in accordance with the evidence of DW1, Mr. Clement Olusola Agbede as contained on page 47 – 48 of the records.

Furthermore, that the evidence given by DW3, DW4, DW5 and DW6 as contained on pages 49 to 60 of the records confirmed the truth of Exhibits A, D and F. In addition, said the Appellant, the evidence of PW7 Mr. Gbenga Ajimuda under cross examination as contained on page 45 confirms the sting of the libel in the instant case.

Appellant argued that the gist of the libel continues to be the most relevant consideration. That, the moment the Respondent proves the sting or gist of the libel to be true, a defence of justification has been established. He referred to the cases of Joseph Mangtur Din V. African Newspapers of Nigeria Ltd (1990) 3 NWLR (pt. 139) 392 at 409, Digby V. Financial News Ltd. (1907) 1 K.B. 502 at 509.

Appellant submitted that based on the evidence of DW1, DW3, DW4, DW5 and DW6 as contained on pages 47 to 60 of the records that the Respondent in this case 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, it is “damnum absque injuria” (loss without a wrongful act).

He referred to the case of Agbon Ojeme V. Prince Mark Jimoh Momodu (1994) 1 NWLR (pt. 323) 685 at 700. He added that the evidence of DW1, DW3, DW4, DW5 and DW6 as stated on pages 47 to 60 of the records has proved beyond reasonable doubt as required under section 138 of the Evidence Act the allegation of bribe taking against the Respondent.

Furthermore, in relation to issue 3, Appellant submitted that the defence of qualified privilege avails the Appellant. The law, he said is that when a man believes that he has suffered a grievance to the notice of the person or body whose power or duty it is to grant redress or to punish or reprimand the offender or merely to inquire into the subject matter of the complaint and any statement so made is privileged if made in good faith and not for the purpose of slandering the plaintiff i.e. the Respondent in the instant case.

He referred to the case of Joseph Agbon Ojeme V. Prince Mark Jimoh Momodu (Supra) at 701.

He submitted that the Appellant in this case who is a legal practitioner has a legal duty and interest to publish the contents of Exhibits ‘A’ and ‘D’ to the person to whom it was addressed (i.e. The Chief Judge of Ondo State) against the Respondent who was then a Chief Magistrate working under the control of the said Chief Judge of Ondo State as at the material time. He submitted that the evidence of PW2 Mr. Marcus Adefemi Ogunode as contained on pages 38 -39 of the records confirmed that the said Exhibit A and D were written to the office of the Hon. Chief Judge of Ondo State. Similarly, that the evidence of PW1 (the Respondent) as contained on pages 31 – 38 of the records shows that Exhibits ‘A’ and ‘D’ were addressed to the Chief Judge of Ondo State. And, that DW1 Clement Olusola Agbede in his evidence on page 47 of the records confirmed that Exhibit ‘D’ was written to his office and the office of the Chief Judge of Ondo State.

Appellant referred to the cases of Chief I. Ekanem-Ita V. Professor B.I.A. Fetuga (1991) 7 NWLR (pt. 204) 449 at 454 and Alhaji K.A. Giwa V. S.A. Ajayi & 3 ors (1993) 5 NWLR (pt. 294) 423 at 425 to say that a defamatory material will be privileged where it is published by someone who made it ‘bonafide” on a subject matter in which he had a duty to communicate.

He submitted that the Respondent did not establish any proof of malice against him by the Appellant. Also, that Exhibit A and D are one and the same document. Exhibit A is the copy of Exhibit D while Exhibit D is the original copy of Exhibit A both Exhibits A and D are the same letter written by the Appellant as a solicitor in the course of his duties to his client.

This, he said makes Exhibits ‘A’ and ‘D’ a qualified privilege in favour of the appellant. On this, Appellant referred first to the decision of the Supreme Court in the case of M.T. Mamman V. A.A. Salaudeen (2006) 9 WRN 1 at 32 where Onnoghen, JSC held:
“There is no doubt that Exhibit 6 is a letter written by a solicitor in the course of his duties to his client.
”The law is that such a letter cannot be defamatory since it is written on a privilege occasion. See Boxsus V. Goblet (1891) 4 All ER P. 1178 at P. 1180 where Kopes L.J stated thus: For the proposal of the present case, I am prepared to lay down this rule: that, if a communication made by a Solicitor to a third party is reasonably necessary and usual in the discharge of his duty to his client and in the interest of his client, the occasion is privilege”.

Secondly, he referred to the book Nigerian law of Libel by Chief Gani Fawehinmi SAN where the learned author at page C 435 said:
“Qualified privilege of statement pursuant to public or private interest and Duty – A communication made bonafide upon any subject matter in which the party has an interest, or in reference to which he has a duty, is privilege, if made to a person having a corresponding interest or duty, although it contains a criminatory matter, which without this privilege would be actionable”.

Learned Counsel for the Respondent treated issues 2 and 3 together in his brief of argument. Whilst in agreement with the appellant that the defense of justification hinges on proving the truth of the defamatory statement or matter, (which in this case is, Exhibit D) he disagreed with the appellant’s conclusion that what he wrote and published was ever proved to be true, of and concerning the plaintiff.

The learned trial judge, said counsel, considering the appellant’s defence of justification in his judgment stated at page 127 as follows:
“To succeed in the plea of justification, however, the defendant must prove that the plaintiff did commit the offence of receiving bribe. The defendant can only enjoy the defense of justification if he has justified the precise imputation complained of. It is strict proof. For the defendant to be avail (SIC) of the defense of justification of the whole libel, the defendant must prove all the material statements in the libel”.

After agreeing with the learned trial judge that the above statement represents the law, he further quoted the learned trial judge at page 131 that:
“The letter written by the defendant on 26/10/99 that is Exhibit ‘D’ which referred to the plaintiff is defamatory of the plaintiff”.

He submitted that the trial court’s findings that the evidence of DW3, DW4, DW5 and DW6 respectively relied on by the appellant was inadmissible hearsay, has already been noted in paragraph 4.02 of the Respondent’s brief showing that those four defence witnesses did not prove the truth of the libel. He added that every judgment of a court of record, as in this case, is presumed to be correct, valid, binding and subsisting until set aside by an appellant court.
He referred to the cases of F.A.T.B. V. Ezegbu (1994) 8 NWLR (pt. 367) 149, Isiyaku Musa Jikantoro & ors V. Alhaji Haliru Dantoro & ors (2004) 5 SCNJ 152.

The learned trial judge, said counsel, not finding the defamatory content of Exhibit ‘D’ to have been proved to be true, quite rightly rejected the appellant’s plea of justification. He urged this court to do the same.

On qualified privilege, Respondent’s counsel said they are in total agreement with the appellant’s statement of the law on this point at page 10 of the Appellant’s brief quoting from the case of Ronke Olapade V. Sketch Publishing Co. Ltd & ors (1987) Case No. C 435 reported in the book Nigerian Law of Libel and the Press (Supra). But, he hastened to draw our attention to the classic exception to that statement at page C 439 of the same report that:
“But no privilege will attach to any such complaint or information, if addressed to a person, or body having no jurisdiction, or control over the person whose conduct is impugned nor any power or duty to grant redress for or inquire into the abuse complained of”.

See: Gatley on libel and Slander 7th Edition paragraph 492.

Learned Counsel submitted that under cross-examination, DW1 (The Chief Registrar of the High Court) in answer to a question, admitted:
“I have no direct authority to discipline magistrates”.
Counsel argued that DW1 was one of persons to whom Exhibit ‘D’ was copied. That, his admission that he had no jurisdiction, authority or control over the respondent as a Chief Magistrate brings this case squarely within the exception above-noted, and in line with the dictum of Lord Loreburn in Adam V. Ward (1917) A.C. 309 at 321 where he said:
“A man ought not to be protected if he publishes what is in fact untrue of someone else when there is no occasion for his doing so, or when there is no occasion for his publishing it to the persons to whom he in fact published it”.
In the instant case and in relation to issues 2 and 3, I do agree with the learned trial judge that neither the defence of justification nor qualified privilege could have availed the Appellant.

I have carefully gone through the records in this case and I believe that the learned trial judge was indeed right to have said that the evidence of the various Defendant’s/appellant’s witnesses on the allegation of receiving N3,000.00 bribe from the Respondent by the Appellant were inadmissible hearsay and that the appellant failed to prove the defence of truth or justification in relation to the allegation of N3,000 bribe against the respondent.
In the case of Joseph Mangtup Din V. African Newspapers of Nigeria Ltd. (1990) 3 NWLR (pt. 139) 392 at 409, the Supreme relied on the dictum of Collins M.R in the case of Digby v. Financial News Ltd (1907) 1 K.B. 502 at 509 that:
“A plea of justification means that all the words were true and covers not only the bare statements of fact in the alleged libel but also any imputation which the words in their con may be taken to convey”

In the instant case, the learned trial Judge was right to hold that to succeed in the plea of justification; the defendant must prove that the plaintiff did commit the offence of receiving bribe. That the defendant can only enjoy the defense of justification if he could justify the precise imputation complained of. That it is strict proof and the defendant must prove all the material statements in the libel.

Again, in relation to the defense of qualified privilege, the Appellant did not prove circumstances which could make the published statement Exhibit ‘D’ an exception to the rule of defamatory publication by showing that it was published bona fide on a subject matter in which he had a duty to communicate.

In the instant case however, the Appellant as defendant called DW1, Clement Olusola Agbede, the then Chief Registrar of the High Court of Justice, Ondo State. The witness not only confirmed, that a copy of Exhibit ‘D’ was given to him but also at cross-examination that “I have no direct authority to discipline magistrates”. Unfortunately, I must say this statement by DW1 was in no way modified and or amended either in Re-examination or in fact throughout the proceedings in the court below.

The implication of the totality of the evidence of DW1 either in the court below or in this Honourable court is that though the parties seem to agree that the communication of Exhibit ‘D’ to the Hon. Chief Judge of Ondo State may well be privileged. However, that the publication of the same Exhibit ‘D’ to the Chief Registrar separately from the Hon. Chief Judge would not qualify for the defence of qualified privilege. This is because, “…no privilege will attach to any such complaint or information, if addressed to a person, or body having no jurisdiction, or control over the person whose conduct is impugned or any power or duty to grant redress for or inquire into the abuse complained of”.
See: Gatley on Libel and Slander, 7th Edition para. 492.
And as was said by Lord Loreburn in Adam v. Ward (1917) A.C 309 at 321
“A man ought not to be protected if he publishes what is in fact untrue of someone else when there is no occasion for his doing so, or when there is no occasion for his publishing it to the persons to whom he in fact published it”

The attempt by the Appellant in this case to argue that Exhibit D, the letter submitted to the Hon. Chief Judge and Exhibit A, the copy of Exhibit D delivered to the Chief Registrar are one and the same, to my mind is not tenable. This is first because defamation generally means the communication of defamatory words to someone other than the person defamed.

Publication on the other hand is the act of making the defamatory statement known to any person or persons other than the plaintiff himself. It is not necessary that there should be any publication in the popular sense of making the statement public. A private and confidential communication to a single individual is sufficient. And, a letter sent to a single individual is sufficient.
See: R.F. V. Heuston. Salmond on the Law of Torts 17th Edition (1977) page 154, Rollins M. Perkins and Ronald N. Boyce Criminal Law 3rd Edition (1932) page 489 quoted in Black’s Law Dictionary 8th Edition page 1265.

In all the circumstances of the instant case, the learned trial judge was right to have disallowed the Appellant’s defences of justification and qualified privilege.

Issues 2 and 3 are resolved against the Appellant.

On issue 4, Appellant submitted that the trial judge did not properly and judicially exercise his discretion in awarding nominal damages of N100,000.00 in favour of the respondent by basing his decision on a point or reason without affording opportunity to the counsel to address thereon when the issue of nominal damages was never a claim before the court.

Appellant noted that the claim and reliefs of the Respondent as contained on pages 3 and 14 of the records is for the sum of N10,000.000.00 (ten million naira) aggravated damages as against the sum of N100,000.00 nominal damages awarded by the trial court. The law, he said is that the court should limit itself to the issues raised by the parties and that any relief or prayer not specifically asked for cannot be granted by the court since it lacks the power to grant such.

He referred on the above point to the cases of UNTH MB & 1 or v. Hope Chinyelu Nnoli (1994) 10 SCNJ 71 91, 92. Henry O. Awoniyi & 1 or V. RTROR (2002) 6 SCNJ 141 at 155.
He submitted that the principal claim having not been granted by the court, it cannot grant any incidental relief which was never sought by the Respondent. An incidental or consequential relief or order cannot arise from a claim that was not granted. That the learned trial judge ought to have allowed counsel to address him on the issue as to whether libel is actionable per se or not before basing his judgment on the said principle. He opined that the issue was raised suo motu by the trial judge and therefore required addresses by counsel.

He referred to the cases of Augustine Udogu & ors V. Augustine Egwuatu (1994) 3 NWLR (pt. 330) 120 at 127. University of Calabar v. Dr. Okon J Essien (1990) 12 SCNJ 304 at 326.

Appellant submitted further that the learned trial judge by awarding nominal damages in favour of the respondent has imported equitable considerations in granting same which by law he has no power to do. The consideration for the award of the said sum as nominal damages as contained on page 130 of the records is not as a result of any injury caused to the person of the Respondent in the alleged libel. He concluded this portion by referring to the case of Prince Oyesunle Alabi Ogundare & anor v. Shittu Ladokun Ogunlowo & 3 ors (1997) 50 LRCN 1420 at 1430 to say that the function of a judge is ‘Jus dicere’ and not ‘Jus dare’.

Learned counsel for the Respondent reacted to issue 4 by saying that two reasons are discernible from the Appellant’s attack on the award of nominal damages. The first according to him is that the award was a judicial discretion not properly and judicially exercised and, the second is that nominal damages not having been specifically claimed should not have been awarded by the trial court.

On the first, Learned Counsel for the respondent submitted that the applicable law, is that, an appellate court will not interfere with the exercise of discretion by a lower court unless it can be shown that the lower court acted under a mistake of law or in disregard of principle or under a misapprehension of the facts, or that discretion was wrongly exercised in that due weight was not given to relevant consideration, or that it is capricious, or based on extraneous factors, or did not follow accepted principles.

He referred to the cases of Offoboche V. Ogoja Local Govt. (2001) 7 SC (pt.1) 107 at 121, Odogwu V. Odogwu (1992) 2 NWLR (pt. 225) 539 at 558, University of Lagos V. Aigoro (1985) 1 NWLR (pt. 1) 143, Vincent Standard Trading Co. Ltd. V. Xtodeus Trading Co. Ltd (1993) 5 NWLR (pt. 296) 675 at pages 693 – 694.

He submitted that none of the factors mentioned above was cited by the appellant as vitiating the exercise of discretion by the trial court. That in exercising his discretion to award damages, the learned trial judge specifically referred to the following factors as his bases for his action, the defendant’s conduct before and after the Institution of the action, the defendant’s conduct in the court during the trial, the nature of the libel, the mode and extent of the publication, the essence of a refraction or apology. That the learned trial judge also adverted to the legal principle that damages are awarded to a plaintiff in defamation to exonerate him and to make for the injury he had suffered to his person or character as a result of the libel.

On the second reason for the Appellant’s attack on the award of nominal damages mentioned above, learned Counsel for the Respondent submitted that ‘nominal damages’ is not a specie of damages different from general damages awardable in defamation cases in the discretion of the court. The appellant’s contention that nominal damages must be specially pleaded before it can be granted is a misconception.

He submitted that in defamation cases, actionable per se once liability is founded, damage is presumed and does not have to be pleaded or proved. It is left at large to be quantified by the trial judge.

He referred to Gatley on Libel and Slander (Sweet & Maxwell) chapter 22 para. 998, Mcgregor on Damages (Sweet & Maxwell) 14th Ed. Chap. 10 paras. 302, 304, 305 and 306.

Learned Counsel further submitted that appellant’s contention pairing ‘aggravated Damages’ together with ‘nominal damages’ as ‘principal claim, and ‘incidental relief’ respectively is unfounded and unknown to law. That, the respondent’s claim of N10, 000,000.00, in aggravated damages having been disallowed by the lower court, the learned trial judge, finding that liability for libel has been established is justified to award nominal damages in the circumstances.

In deciding issue 4 one must start by appreciating the thin perhaps tedious distinction that the Appellant was trying to make in between the appellations of ‘nominal damages’ and the award of ‘general damages’ in the instant case.

One must however start with the trite proposition that libel is actionable per se in other words damages could be awarded on the establishment of the libel without proof of damages based on the discretion of the learned trial judge.

I would have loved to agree with the Appellant that the appellation of an award of ‘general damages’ rather than ‘nominal damages, would have been more appropriate or would have at least shown clarity in the circumstances of the case. But at the same time, I do not consider it an error to use the terms nominal damages in interchange for general damages. This is because there is actually nothing in the dictionary of law to suggest that the terms ‘nominal damages’ or ‘general damages’ could not be used interchangeably except for the fact that nominal damages may indeed express the idea of “a trifling sum awarded when a legal injury is suffered but when there is no substantial loss or injury to be compensated… the practical significance of a judgment for nominal damages is that the plaintiff thereby establishes a legal right…”

It seems to me that the more important thing in the use of the expression ‘nominal damages’ or ‘general damages’ in a claim that is actionable per se as in the instant case is that either of the awards is subject to the discretion of the trial judge’ and not subject of proof.

The 8th edition of the Black’s Law Dictionary at page 417 talks of ‘general Damages’ as “Damages that the law presumes follow from the type of wrong complained of;… compensatory damages for harm that so frequently results from the tort for which a party has sued that the harm is reasonably expected and need not be alleged or proved. General damages do not need to be specifically claimed…”

At page 418, the same dictionary talks of ‘nominal damages’ in various forms as follows:
“Nominal damages.
1. A trifling sum awarded when a legal injury is suffered but when there is no substantial loss or injury to be compensated.
2. A small amount fixed as damages for breach of contract without regard to the amount of harm….Also termed contemptuous damages.
“Nominal damages are damages awarded for the infraction of a legal right where the extent of the loss is not shown, or where the right is one of rights of bodily immunity or rights to have one’s material property undisturbed by direct invasion. The award of nominal damages is made as a judicial declaration that the plaintiffs right has been violated” Charles T. Mccormick Handbook on the law of Damages 20 at 85 (1935)
“Nominal damages are awarded if the Plaintiff establishes a breach of contract or a tort of the kind that is said to be ‘actionable per se’ but fails to establish a loss caused by the wrong. In the case of tort not actionable per se, for example, negligence, if the plaintiff fails to establish a loss the action will be dismissed. The practical significance of a judgment for nominal damages is that the plaintiff thereby establishes a legal right ………”

From the above literature, it would seem that in claims that are actionable per se as in the instant case ‘nominal damages’ could be used as a specie of ‘general damages’ to denote the award of a trifling or token sum for the plaintiff in an action. This to my mind is precisely what the learned trial judge did in the instant case. The learned trial judge recognized that the award of damages to a plaintiff in a libel matter is not to be seen as a gold mine. That damages are awarded to a plaintiff to exonerate him and to make for the injury he had suffered to his person or character as a result of the libel. He thus, disallowed the Respondent’s claim of aggravated damages and instead awarded nominal damages of N100,000.00 (one hundred thousand naira only).
In the circumstance, I do not agree with the Appellant that the award of nominal damages to the Respondent was improper and unknown to law.

Issue 4 is resolved against the Appellant.

On issue 5, the Appellant complained of failure of the learned trial judge to properly evaluate evidence. He referred to the statement of the learned trial judge first at page 128 that:
“I am not convinced that the defendant did perceive or witness the Plaintiff being given or received any money from any person as bribe on 21/10/99”
Second at page 129 that:
“I have reviewed the evidence of the 6 witnesses who gave evidence for the defendant in this case”

Appellant submitted that these statements show glaringly that the evaluation of evidence made or done by the trial judge in this case before arriving at his judgment was based on the evidence of the Appellant’s witnesses alone and therefore failed to put the totality of the testimony adduced by both parties on each side of the imaginary scale of justice and see which one weighs higher or more before arriving at his judgment in the suit.
He said the evidence adduced by PW1, PW2, PW3, PW4, PW5, PW6, PW7 and DW1, DW2, DW3, DW4, DW5 and DW6 as contained on pages 32 – 60 of the records were not evaluated by him before arriving at his judgment.

Appellant referred to the cases of Otunba Adeniran Ogunsanya & 1 or V. Chief S.A. Dada & 3 ors (1990) 6 NWLR (pt. 156) 347 at 381 – 382 and UBA Ltd & 1 ors V. Rose Francis Louis (1994) 4 NWLR (pt. 336) 110 at 128 and submitted that the findings of the trial judge in this case are perverse and do not bear out the fact that the court really heard and saw the witnesses in court.

He further submitted that the learned trial judge was wrong to have treated the evidence of DW1, DW2, DW3, DW4, DW5 and DW6 as hearsay evidence. He argued that where the finding or non-finding of facts is questioned as in the instant case, the court of Appeal in its primary role in considering a judgment on appeal in a civil case will seek to know the following:
(i) The evidence before the trial court.
(ii) whether it accepted or rejected any evidence upon the correct perception.
(iii) Whether it correctly approached the value of it.
(iv) whether it used the imaginary scale of justice to weigh the evidence on either side.
(v) whether it appreciated upon the preponderance of evidence on which side the scale weighed having regard to the burden of proof.

He referred to the cases of Falcon Bentil (Nig.) Ltd & 1 or V. Lawrence E. Manulu (2002) FWLR (pt. 95) 392 at 403, 404, Agbonifo V. Aiwereoba (1988) 1 NWLR (pt. 70) 325 at 339, MISR (Nig.) Ltd V. Ibrahim (1975) 5 SC 55 at 62, Egonu V. Egonu (1978) 11 – 12 SC 111 at 129, Daniel Awudu & 1 or V. Atta Ngodere (2004) AFWLR (pt. 225) 10 at 28 – 29, J.O. Sekoni & 40 ors V. Olaniyi Ogunmola & 5 ors (2004) (pt. 234) AFWLR 1956 at 1968.

Learned Counsel for the Respondent in response adopted his earlier submissions on issue 1 where he “recounted the labours of the learned trial judge” review and evaluation of all the defense evidence”.

He submitted in addition that it is not in dispute that this is a case of defamation (libel) to which the appellant, as defendant, has pleaded justification amongst other defences and, in consequence, bear the burden of proving the truth of the defamatory publication.

The golden rule, he said has been that, the evaluation of evidence and the ascription of probative value to it is the primary function of the trial court, which saw, heard and assessed the witnesses. And, that unless its findings of fact are perverse, the Court of Appeal would not interfere, or substitute its own views for those of the trial court:
He referred to the cases of Isaac Gaji & ors v. Paye (2003) 5 SCNJ 20 at 32, Sanusi V. Adebiyi (1997) 11 NWLR (pt 530) 565 at 583, Okino V. Obanebira (1990) 13 NWLR (pt.636) 535 at 558.

In deciding issue 5, it must be recalled that this is a case of libel in which the content of the libelous publication was admitted by the Appellant. He however pleaded justification and qualified privilege amongst other common defences to libel. The learned trial judge in evaluating the evidence of the parties was therefore somewhat limited to the proof of any of the defenses raised by the Appellant. This, he could not find, either from the evidence of the Plaintiff respondent witnesses nor from the witnesses of the Defendant Appellant.

The submission of the Appellant that the learned trial judge wrongly treated the evidence of DW1, DW2, DW3, DW4, DW5 and DW6 as hearsay is not borne out by the records. Indeed in relation to the all important question of whether the Respondent actually received a bribe of N3, 000.00, there was no direct evidence as no witness was able to say he witnessed the receipt of the said sum by the Respondent.

I do not have any hesitation to conclude that the learned trial judge properly evaluated the evidence in the case and his conclusions were not perverse.

Issue 5 is resolved against the Appellant.

Having resolved the five (5) remaining issues in this appeal against the Appellant; the appeal lacks merit and it is accordingly dismissed. I make no other as to costs.

The Cross-Appeal
Learned Counsel for the Respondent Cross-Appellant filed a Notice of Cross-Appeal in this Honourable Court on 2/3/2010.
Based on the solitary ground of appeal, the Respondent/Cross-Appellant formulated a sole issue thus:
“Whether the finding of fact made by the learned trial judge, after His Lordship’s review and evaluation of the evidence of DW3, DW4, DW5 and DW5, being inconsistent with those evidence is perverse and ought to be set aside”

Elaborating on the sole issue, Learned Counsel for the Cross Appellant referred to the definition of ‘a finding of fact’ as contained in Black’s Law Dictionary 6th Edition at page 632 as “a conclusion by way of reasonable inference from the evidence”.

He submitted that the statement in the sentence complained of to wit. “The evidence that their counsel gave the money to the plaintiff is not in doubt”, as a finding of fact, is perverse as it is not supported by the copious evidence adduced before the learned trial judge and now on record.

He referred to the cases of Gabriel Iwuoha v. Nigerian Postal Services Ltd (2003) 4 S.C.N.J. 258 at 284 and Overseas Construction Co. Ltd v. Creek Enterprises (Nig.) Ltd (1935) 3 NWLR (pt. 13) 407. That a perverse finding is “…a finding of fact which is merely speculative and not based on any evidence before the court. A perverse finding is an unreasonable and unacceptable finding because it is wrong and completely outside the evidence before the trial judge”.

He submitted that the particular finding of fact in issue in this cross-appeal is perverse since same is neither borne out nor supported by the evidence of the Defence witnesses on the record as evaluated by the learned trial judge. That none of the Defence witnesses adduced credible and direct evidence of the plaintiff’s receipt of the bribe alleged as to warrant the finding of fact under reference. Further, that the perversity of the finding of fact under reference in this cross-appeal becomes obvious when considered in the con of the overall conclusions of the learned trial judge in his evaluation of the Defence evidence.

Learned Counsel referred to pages 125- 126 of the records where the learned trial judge remarked inter alia that “the evidence adduced by DW4, DW5 and DW6 were based on hearsay……..”

And that immediately after, made the finding of fact now complained of in the cross-appeal. But, that thereafter, His Lordship continued his inferential conclusions at pages 125 – 126 of the record as follows:
“I am not satisfied that the evidence adduced by DW4, DW5 and DW6 have any evidential value as to whether the plaintiff collected a sum of N3,000.00 bribe which is the gist of this action. I therefore refuse to rely on the evidence that the Plaintiff collected the sum of N3,000.00 bribe in C.O.P. V. Akereja & ors on 21/10/99”

He submitted that in the con of the foregoing meticulous conclusions of the learned trial Judge which was based on the record, the solitary perverse finding ascribed to His Lordship at page 1.25 tines 27 – 30 of the Record (particularity the sentence: “The evidence that their counsel gave the money to the plaintiff is not in doubt”) lacks substance and evidential foundation. The foregoing interferential conclusions of the learned trial judge knock bottom out of the finding of fact complained of in this cross-appeal and same ought not be allowed to stand.
To further accentuate the perversity of the finding of fact under reference in this cross-appeal, Counsel referred to learned trial Judge’s evaluation of the evidence of DW3, the witness referred to as ‘their Counsel’ in the finding, at page 123, Lines 10 – 14 of the Record as follow:
“I have reviewed the evidence adduced by DW3, above, it is full of hearsay and assumption. He did not give direct evidence that he saw the plaintiff receiving the bribe alleged from either Kunle Gbadamosi or someone else”

He submitted that it is crystal clear that the finding of fact complained of is an inexplicable deviation from the consistent flow and trend of the trial court’s review and evaluation of the evidence of the Defence witnesses, which evaluation was overwhelmingly in favour of the Cross-Appellant/Plaintiff particularly on the crucial issue the proof or otherwise of the bribe alleged.

It thus stands to reason, said Counsel that the finding made in the sentence: “The evidence that their counsel gave the money to the plaintiff is not in doubt” does not flow from the copious evidence on record as a finding of fact on the issue of the proof of the bribe alleged. Hence, the said finding is perverse. Alternatively, Counsel submitted that the inclusion of the word “not” in the above quoted sentence is a Printer’s mischief. In either case, said Counsel, this Honourable Court is urged to invoke its section 15 power and set aside the said finding of fact.

In his Cross-Respondent’s brief of argument, the Appellant Cross-Respondent raised the issue that the sole ground of cross-appeal is at best a ground of mixed law and fact and not a ground of law as claimed by the Cross-Appellant.
Following, from the above, that the Cross-Appellant did not seek leave of court before filing a cross-appeal based on mixed law and facts.

In the alternative, the cross-Respondent submitted that the finding of fact in issue in the cross-appeal by the trial judge was not perverse but borne out and adequately supported by the Cross-Respondent’s witness as contained on pages 47 – 60 of the records and was properly evaluated by the lower court.

He referred to the cases of ACME Builders Ltd V. Kaduna State Water Board & 1 or (1992) 2 SCNJ 25 at 51, Kaduna iles Ltd V. Alhaji Isa Umar (1994) 1 NWLR (pt. 319) 143 at 161 and urged that the cross-appeal be either struck out or dismissed.

The first point raised by the Cross-Respondent is in the nature of a preliminary objection to the cross-appeal. However, it was not properly so raised. The provision of Order 10 Rules (1) and (3) of the Court of Appeal Rules 2011 is quite clear on the point. It reads.
“10 (1) A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days notice thereof before the hearing setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time”.
(3) If the Respondent fails to comply with this Rule, the court may refuse to entertain the objection or may adjourn the hearing thereof at the costs of the respondent or may make such other order as it thinks fit”.

In the instant case, the Cross-Respondent has not complied with the provision of order 10 Rules 1 and 3 of the Court of Appeal Rules 2011 in raising an objection as to the Cross-Appellant’s ground of appeal only in the cross-Respondent’s brief without filing a Notice of Preliminary objection. The arguments in paragraph 5.01 at pages 1 and 2 of the Cross-Respondent’s brief are liable to be discountenanced and are accordingly discountenanced.

It is obvious that the finding of fact complained of in the cross-appeal does not in fact flow from the copious evidence on record as a finding of fact on the issue of the proof of the bribe alleged. I do agree with the learned counsel for the Cross-Appellant that the finding complained of is perverse or perhaps in the minimum a printer’s mischief. Either way, it is perfectly in order for this Honourable Court to intervene and set aside that finding of fact. This is because, though an appellate court will very rarely, if at all interfere with the findings of facts made by trial court. However, the findings are not sacrosanct. Where the conclusions made from the findings are not supported by the evidence relied upon, or the proper conclusions or inferences are not drawn from the evidence, or where the trial court has failed to evaluate the evidence, the appellate court will in the interest of justice, be free to do so.
The appellate court is entitled to evaluate the evidence and come to the right decision supported by the evidence.
See: Anthony Ibhafidon v. Subday Igbinosun (2001) 4 S.C. (pt. 1) 96 at 104. Gabreiel Iwuoha v. Nigeria Postal Services Ltd (2003) 4 SCNJ 258 at 284 – 285. Daniel Bassil & Anor v. Chief Lasisi Fajebe & Anor (2001) 4 S.C. (pt. II) 119 at 125. Chief Kalada Nteogwuile v. Chief Isreal Otuo (2001) 6 S.C. 200 at 211.

In the instant cases, the finding of fact by the learned trial judge at page 125 Lines 27 -30 of the Record (particularly the sentence:
“The evidence that their counsel gave the money to the plaintiff is not in doubt” is perverse or it is a printer’s mischief. It cannot stand in view of the other evidence on record.
Consequently, the only issue in the cross-appeal is resolved in favour of the cross-appellant. The cross-appeal is meritorious it is accordingly allowed.
The finding of fact at page 125 Lines 27 – 30 of the Record (particularly the sentence: “The evidence that their counsel gave the money to the plaintiff is not in doubt” is accordingly set aside.
I make no order as to costs.

SOTONYE DENTON-WEST, J.C.A.: I have read in advance the judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, JCA, and I agree with the conclusions reached therein.
However, I wish to further adumbrate that for a plea of justification to avail a defendant in an action for defamation, all the defamatory words published must be established to be true. See: Iloabachie vs. Iloabachie (2005) 5 SC (pt. 11) 149. In the instant case, appellant as defendant in the trial court is expected to prove that the bribe of N3,000.00 was in truth received by the plaintiff/respondent; by cogent and credible evidence as opposed to hearsay evidence.
Black’s Law Dictionary 8th Edition at page 882 defines “Justification” thus:
1. “A lawful or sufficient reason for one’s acts or omissions; any fact that prevents an act from being wrongful.”
2. “A showing in court of a sufficient reason why a defendant did what the prosecution charges the defendant to answer for”The appellant having failed to establish the truth of the defamatory words published against the respondent, cannot enjoy the protection of the defence of justification.
For this and the more detailed reason ably adduced in the lead judgment, I also dismiss the appeal as lacking in merit.
I make no order as to cost.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I have read before now the lead judgment delivered by my brother OWOADE, JCA and I agree with him entirely that Grounds 2, 3, 7 and 9 of the Notice and Grounds of Appeal as well as issue 4 based on an incompetent ground 7 are to be struck out. The position of the law remains that where an issue is formulated for the determination of an appeal but the issue cannot be related to any of the grounds of appeal filed, the court will strike it out and any argument presented in its support will be discountenanced. See Oniah vs. Onyia (1939) 1 NWLR (Pt. 99) 514; Ugo vs. Obiekwe (1989) 1 NWLR (Pt. 99) 566; Aja vs. Okoro (1991) 7 NWLR (Pt. 203) 260.

On the other part any ground upon which no issue is distilled, the said ground is regarded as abandoned and ought to be struck out. See Ngilari vs. Mothercat Ltd. (1999) 13 NWLR (Pt. 636) 626; Western Steel Works vs. Iron & Steel Workers Union (No. 2)(1987) 1 NWLR (Pt.49) 284, 304; Iyaji v. Eyigebe (1987) 3 NWLR (Pt. 61) 523.

It is obvious that fresh issues were imported into Ground 7 of the appellant’s grounds of appeal without the leave of court and this is not proper in law. To raise a fresh issue on appeal which issue did not arise from at least one of the grounds of appeal will definitely necessitate seeking and obtaining the leave of court for same to be argued on appeal.
From the respondent’s Notice of Preliminary Objection which I too uphold, it seems to me and I so hold that Grounds 2, 3, 7 and 9 of the Notice and Grounds of Appeal together with issue 4 which is based on an incompetent ground 7 ought to be struck out and they are so struck out.
My learned brother adequately dealt with the issues pertaining to the main appeal as well as the cross-appeal and l could not agree more with the conclusions reached therein. The appeal indeed lacks merit and is accordingly dismissed. The cross-appeal on the other part succeeds and is accordingly allowed.
I make no order as to costs.

Appearances

Chief O.J. Jejelola appeared in person for the appellant in the main appeal and Cross-Respondent in the cross appeal.For Appellant

AND

T.A. Oyelola with Ife Faloye for the Respondent in the main appeal and cross-appellant in the cross appeal.For Respondent