DR. INNIH EBONG v. FRIDAY UDOH & ANOR (2014)

DR. INNIH EBONG v. FRIDAY UDOH & ANOR

(2014)LCN/7359(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 8th day of July, 2014

CA/C/262/2012

RATIO

COURT: DUTY OF THE COURT; THE DUTY OF THE COURT TO CONSIDER ALL ISSUES PRESENTED BEFORE IT AND THE EXCEPTION TO THIS GENERAL RULE
Although the general rule is that this court must consider all issues presented before it, the apex court has endorsed a permissible exception to this rule. It, simply, comes to this: where the court is satisfied that the consideration of one or more issues may determine an appeal; that would obviate the need for tackling all the issues. The authorities on this question are many: Tumbi v Opawole [2000] 1 SC 1; Onochie and Ors v Odogwu and Ors [2006] 17 WRN 1; [2006] 2 SCNJ 96; Owodunni v Regtd Trustees, CCC [2000] FWLR (Pt 9) 1455; Bamaiyi v State [2001] FWLR (Pt 46) 956; Umanah v Attah [2006] All FWLR (Pt 201) 1951; 7up Bottling Co Ltd v Abiola and Sons [2001] 7 NWLR (Pt 70) 1611; Sanusi v Ameyegun [1992] 4 NWLR (Pt 237) 527 . per. CHIMA CENTUS NWEZE, J.C.A.

TORT: TORT OF DEFAMATION; WHAT IS THE TORT OF DEFAMATION AND FOR IT TO CONSTITUTE A CAUSE OF ACTION
writers and jurists are ad idem that the province of the tort of defamation, either in its written genre [technically known as libel] or in its transient species [called slander], is the injury occasioned on another person’s reputation by either written or spoken words, P. Milmo and W Rogers (eds), Gatley on Libel and Slander (Ninth Edition) (London: Sweet and Maxwell, 1998) paragraph 1. 5; G. Fawehinmi, Nigerian Law of Libel and the Press (Lagos: Nigerian Law Publications Ltd, nd) passim; G. Kodilinye and O. Aluko, Nigerian Law of Torts (Ibadan: Spectrum Books Ltd, 2007) (Reprint) 136; Toltey v Fry [1930] 1 KB 467, 479, approvingly endorsed in Egbuna v Amalgamated Press of Nigeria Ltd [1967] 1 All NLR 25, 29, Byrne v Dean [1937] 1 KB 818.
True, indeed, the law takes the view that nothing could be more intangible than a person’s reputation, dignity or feelings. In essence, the injury to these intangible attributes forms the essence of the tort of defamation, Offoboche v Ogoja Local Government (2011) LPELR -2265 (SC) 28, or, more accurately, the law of libel and slander, A. Mullis, “The Law of Defamation,” in A. Grubb (ed), The Law of Tort (London: Butterworths, 2002) 1014, paragraph 24. 1.
Like English Law, which gives effect to the Biblical ninth commandment that a man shall not speak evil, falsely, of his neighbor fand supplies a temporal sanction], per Lord Diplock in Horrocks v Lowe [1975] AC 135, 149, cited in A. Mullis, “The Law of Defamation” (supra), Nigerian Law does not brook the habit of people maligning or disparaging their neighbours before third parties, Sketch Publications Ltd v Ajagbemokeferi[1989] 1 NSCC 346; Ciroma v Alli [1999] 2 NWLR (Pt 590) 317; Nsirim v Nsirim [1990] 3 NWLR (Pt 138) 285, 297.
Such statements either tend (a) to lower the plaintiff in the estimation of right-thinking members of 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, Sketch Publications Ltd v Ajagbemokeferi (supra); Corabi v Curtis Publications Co 441 pa. 432, 273 A 2d, 899, 904, cited with approval in Guardian Newspapers and Anor v Ajeh (2011) LPELR -1343 (SC) 42-43, C-A.
However, to constitute a cause of action, Dairo v UBN Plc [2007] 7 SC (Pt 11) 97, citing Ezomo v Oyakhire [1984] 1 NWLR (Pt 2) 195); Egbue v Araka [1989] 3 NWLR (Pt 84) 598, they must be false and disparaging statements against a person to a third person, Sketch Publications Ltd v Ajagbemokeferi (supra); Ciroma v Alli [1999] 2 NWLR (Pt 590) 317; Nsirim v Nsirim [1990] 3 NWLR (Pt 138) 285, 297; that is, the injury must be to the plaintiffs reputation in the minds of right-thinking people, Edem v Orpheo Nig Ltd [2003] 13 NWLR (Pt 838) 537 , 558; Sketch Publications Ltd v Ajagbemokeferi (supra); Gatley on Libel and Slander(supra). per. CHIMA CENTUS NWEZE, J.C.A.

TORT; TORT OF DEFAMATION-LIBEL; THE INGREDIENT OF THE ACTION OF LIBEL THAT A PLAINTIFF MUST PROVE

EVIDENCE: BURDEN/ONUS OF PROOF; THE BURDEN OR ONUS OF PROOF IN AN ACTION FOR DEFAMTION
Against the above background, therefore, the onus was on the appellant [as plaintiff at the lower court] to demonstrate that the words he complained of were defamatory or that they conveyed a defamatory imputation, Din v African Newspaper (Nig) Ltd [1990] 3 NWLR (Pt. 139) 392; Onyejike v Anyasor (1992) 1 NWLR (Pt.218) 437; Nsirim v Nsirim (1990) 3 NWLR (Pt. 4) 704; [1990] 5 SCNJ 174, 184.
per. CHIMA CENTUS NWEZE, J.C.A.

STATUTORY INTERPRETATION: THE EJUSDEM GENERIS RULE; THE APPLICATION OF THE EJUSDEM GENERIS RULE AND THE EXCEPTION TO THE RULE
In Fawehinmi v IGP (2002) LPELR -1258 (SC) 36, D-E, Uwaifo JSC explained that the ejusdem generis rule helps to confine the construction of general words within the genus of special words which they follow in a statutory provision or in a document, citing Ashbury Railway Carriage and Iron Co v Riche (1875) L.R.H.L. 653; Attorney-General v Seccombe (1911) 2 K.B. 688; also, FRN v Ifegwu [2003] 112 LRCN 2233, 2278; Ehuwa v O.S.I.E.C. [2002] 18 NWLR (Pt 1012) 544, 595; Abacha v FRN [2006] 4 NWLR (Pt 970) 239, 295; Bromik Motors v Wema Bank [1983] 1 SCNLR 296.
In Kabirikim v Emefor and Ors (2009) LPELR -902 (SC) 18 – 21, A-G, Onnoghen JSC, threw further light on the meaning and application of the principle thus:
Black’s Law Dictionary 8th Edition, defines the rule thus:
Under ejusdem generis cannon of statutory construction where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated.”

There is, however, an exception to its application as stated in the said dictionary as follows:
The rule however does not necessarily require that the general provision be limited in its scope to the identical things specifically named. Nor does it apply when the con manifests a contrary intention.
In the case of Buhari v Yusuf [2003] 14 NWLR (Pt.841) at 486 – 487, this court, per Uwaifo, JSC stated the position of the rule as follows:
Ejusdem generis rule is an interpretative rule which the court would apply in an appropriate case to confine the scope of general words which follows special words used in a statutory provision or document within the genus of those special words. In the construction of statutes, therefore, general terms following particular ones apply to such persons or things as are ejusdem generis with those understood from the language of the statute to be confined to the particular terms.
From these authoritative pronouncements of the apex court, it would be obvious that counsel for the appellant was/ entirely, wrong in his invocation of the said ejusdem generis rule. Worse still, his advocacy, no matter how brilliant, cannot supplant the evidence of PW2 on record, Olufosoye v Fakorede (1993) 1 NWLR (Pt 272) 747, 746; Nwadairo v SPDC (1990) 5 NWLR (Pt 150) 322, 339; Odebeko v Fowler [1993] 1 NWLR (Pt 308) 637; Ishola v Ajiboye (1998) 1 NWLR (Pt 532) 71, 93; Aro v Aro (2000) 14 WRN 51, 65. per. CHIMA CENTUS NWEZE, J.C.A.

COURT: DUTY OF THE COURT; THE DUTY OF THE COURT IN AN ACTION INVOLVING LIBEL TO FINDINGS OF FACT WHETHER THE WORDS COMPLAINED OF ARE CAPABLE OF BEARING DEFAMATORY MEANING AND WHETHER THE PLAINTIFF IS, ACTUALLY, DEFAMED BY THESE WORDS
In actions involving libel, the question whether the words complained of are in fact defamatory is that of the jury to decide while the question whether they are capable of conveying a defamation meaning in the minds of reasonable persons in a particular case is for a judge to decide upon the evidence before him. In Nigeria, where there is no jury trial, it is the duty of a trial court to make findings of fact whether the words complained of are capable of bearing defamatory meaning and whether the plaintiff is, actually, defamed by these words, Sketch v Ajagbemokeferi [1989] 1 NWLR (Pt.100) 678.
We are satisfied that, from the above excerpts, the lower court, dutifully, discharged that obligation, that is, made concrete findings of fact that the two words “ardent sycophant,” which the appellant singled out from the publication in question, did not defame the appellant. We endorse the court’s findings as our concurrent findings on this question.
As a corollary, the question whether the words complained of are, in their natural and ordinary meanings, defamatory, is one of fact. Thus, it is the effect the words have on persons who read them that constitutes the libel, Z. P. Ind Ltd v Samotech Ltd (2007) 16 NWLR (Pt 1060) 315, 348. In effect, there must be proof by evidence by a third party of the effect of alleged publication. What is important, therefore, in libel is the reaction of a third party to the publication complained of. The reason is simple. It is not what the plaintiff thinks about himself, but what a third party thinks of the plaintiff as regards his reputation.
A person’s reputation is not based on the good opinion he has of himself but the estimation in which others hold him, Economides v Thomopoulos and Co Ltd [1959] SCNLR 40; Ngilari v Mothercat Ltd (1999) 13 NWLR (Pt. 636) 626; Nigerian Produce Marketing Board v Adewunmi [1982] 11 SC 111; Ishaku v Aina (2004) 11 NWLR (Pt. 883) 146; Alawiye v Ogunsanya (2004) 4 NWLR (Pt. 886) 390; B.P.P.C. v Gwagwada (1989) 4 NWLR (Pt. 116) 439; Egbuna v Amalgamated Press (1967) 1 All NLR 25; Okafor v Ikeanyi [1979] 3 – 4 SC 99; Skye Bank Plc and Anor v Akinpelu (2010) LPELR -3073 (SC) 38, F – A.
per. CHIMA CENTUS NWEZE, J.C.A.

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF FACT BY THE TRIAL COURT UNLESS IT IS PERVERSE
We have a duty to respect the findings of fact made by a trial court [such as the lower court herein] when it is clear that it has adequately performed its primary duty of evaluation and ascribing probative value to the evidence before it. In circumstances such as this, we approach the said findings with due caution and not on the basis that we would or might have found otherwise. The essential consideration is that there is enough evidence on record from which the trial Court’s findings can be supported, Woluchem v Gudi [1981] 5 SC 29t; Igwego v Ezeogo [1992] 6 NWLR (Pt.249) 561; Joel Golday Co. Ltd v C.D.B. Plc [2003] 5 NWLR (Pt 814) 586; Ezekwesili v Agbapuonwu [2003] 9 NWLR (Pt 824) 377. per. CHIMA CENTUS NWEZE, J.C.A.

JUSTICES

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

DR. INNIH EBONG Appellant(s)

AND

1. FRIDAY UDOH
2. AKWA IBOM NEWSPAPER CORPORATION Respondent(s)

CHIMA CENTUS NWEZE, J.C.A.: (Delivering the Leading Judgment): The appellant in this appeal [as plaintiff[, by a writ of summons, endorsed with an eleven-paragraph Statement of Claim, filed at the High Court of Justice of Akwa Ibom State, Uyo Judicial Division (hereinafter, simply, called “the lower court”), claimed against the respondents herein, jointly and severally, the sum of N5 Million Naira being general damages for libel.
Pleadings were settled, filed and exchanged; amended, filed and exchanged. Pursuant to the applicable rules of the lower court, the parties filed their written statements on oath. The appellant testified as PW1 in proof of his case. He tendered fifteen exhibits, exhibits “A” – “M.” One other witness, Daniel Edet Edem, a farmer, testified in further proof of the appellant’s case.
The first respondent testified as DW1 in rebuttal of the plaintiff’s claim. In its judgment of June 29, 2012, the lower court [Coram Umanah J] dismissed the said claim. This appeal is the expression of the appellant’s grievance against the outcome of his case at the lower court. He formulated three issues for the determination of his appeal. They were framed thus:

ISSUES FOR DETERMINATION
1. Whether having regard to the pleadings and evidence before the lower court judgment ought not to be given to the appellant instead of the respondents?
2. Whether the description of the appellant as ‘ardent sycophant’ in the offending publication by the respondents amounts to ridiculing and denigrating the appellant?
3. Whether the trial court was not wrong in law when it held ‘I do not believe or give credence to written statement on oath one bit’ of PW2′ and thus came to the conclusion that the opinion of PW2 regarding the reputation of the appellant did not change after PW2 read the offending publication?
On their part, the respondents put forward the following three issues for determination:
1. Whether the appellant has satisfied the conditions and/or prove (sic) the ingredients necessary to sustain a claim for libel?
2. Whether the respondents were entitled, in the circumstances of this case, to benefit from any of the available defences open to them?
3. Whether the judgment of the lower court was so perverse as to occasion a miscarriage of justice?
Although the general rule is that this court must consider all issues presented before it, the apex court has endorsed a permissible exception to this rule. It, simply, comes to this: where the court is satisfied that the consideration of one or more issues may determine an appeal; that would obviate the need for tackling all the issues. The authorities on this question are many: Tumbi v Opawole [2000] 1 SC 1; Onochie and Ors v Odogwu and Ors [2006] 17 WRN 1; [2006] 2 SCNJ 96; Owodunni v Regtd Trustees, CCC [2000] FWLR (Pt 9) 1455; Bamaiyi v State [2001] FWLR (Pt 46) 956; Umanah v Attah [2006] All FWLR (Pt 201) 1951; 7up Bottling Co Ltd v Abiola and Sons [2001] 7 NWLR (Pt 70) 1611; Sanusi v Ameyegun [1992] 4 NWLR (Pt 237) 527 .
In the instant appeal: an appeal that impugns the lower court’s dismissal of the appellant’s claims for damages for libel, we take the humble view that issue one is, sufficiently, commodious to embrace the appellants’ remaining two issues. In consequence, we shall adopt his issue one in the determination of this appeal. In doing so, however, we shall take the liberty to reframe it thus:
Whether, having regard to the pleadings and evidence on record, the appellant [as plaintiff] was entitled to judgment in his claim for damages for libel?
We shall, in the resolution of this sole issue, endeavour to pitchfork the appellant’s second and third issues into it and resolve all of them under the self-same issue.

ARGUMENT ON THE ISSUES
APPELLANT’S ARGUMENT
ISSUE ONE
At the hearing of this appeal on May 7, 2014, counsel for the appellant, Ernest Usah, adopted the brief filed on March 19, 2013 although deemed, properly, filed on April 17, 2013. He, equally, adopted the Reply brief filed on February 4, 2014. On this issue, he submitted that the lower court’s finding on the failure of the claim was perverse and contrary to the weight and state of pleadings and evidence before it. He pointed out that one of the main thrusts of the appellant’s case was that he was defamed by the respondents’ publication, Exhibit “E.”
He explained that the appellant’s grouse with that publication was that it had lowered his reputation before the general public, Afaha Obio Eno community, and the University community, including his colleagues and students in the University of Uyo and elsewhere, [paragraph 5, Further Amended Statement of Claim, page 10 of the record; paragraph 5 of the statement of PW1, pages 50-51].
He contended that the respondents did not, adequately, traverse the above averments, citing paragraph 5 of the Amended Statement of Defence; paragraph 5 of the Witness’s deposition, [pages 14 and 62 of the record], citing Section 75 of the Evidence Act [then applicable, now Section 123, 2011 Evidence Act; Odiba v Muemue [1999] 6 SCNJ 245, 47; Asafa Foods v Alraine Nigeria [2002] 99 LRCN 1517, 1520 and 1522; Nirchandani v Pinheiro [2001] 48 FWLR (sic) 1307, 1313; Daramola v A.G. Ondo State (2000) 7 NWLR (Pt.665) 440, 448 and 453.
He observed that, in countering the facts pleaded and given in evidence in the appellant’s paragraph 5 (supra), the respondents were evasive. He noted that they never denied the facts that the appellant was shunned and avoided by the general public and in Afaha Obio Eno since the publication of the offending defamation. According to him, the respondents resorted to hearsay evidence to the effect that the University community; colleagues and students still respect the appellant and did not call any witness from the said community to testify. In his view, the alleged evasive traverse amounted to admission. He pointed out that the lower court did not attach any weight to that admission.
He cited pages 119-120 of the record where the said court made certain findings and urged the court to hold that they were perverse findings which did not accord with the pleaded facts. In his submission, the lower court did not, properly, utilize the averments in the pleadings and evidence before it, Ngige v Obi (2006) 14 NWLR (Pt.999) 1, 141 – 142, 208 and 236; Nteogwuile v Otuo [2001] 16 NWLR (Pt 58) 75, 83-84; Skye Bank Plc v Akinpelu [2010] 187 LRCN 110, 120 – 121; Total v Nwankwo [1978] 5 SC 1, 16 – 17; Mamman v Salaudeen (2006) 135 LRCN 859, 890; S.B. Bakarev African Continental Bank (1986) NWLR (Pt.26) 47; Offor and Anor v The State (2012) 214 LRCN 186, 208.
He urged the court to hold that the court’s findings, being perverse, had occasioned a miscarriage of justice and ought to be disturbed and set aside, State v Ajie (2000) 80 LRCN 2513; State v Ajie (supra); Nteogwuile v Otuo (supra); Ngige v Obi (supra); Ebba v Ogodo [1984] 1 SCNLR 372; Agbonifo v Aiwereoba [1988] 1 NWLR (Pt.70) 325; Hamza v Kure (2010) 187 LRCN 143, 166 – 167.
He canvassed the view that this court is in as good a position as the lower court to evaluate “A” since it is a document. He cited paragraph 6 of the Further Amended Statement of Claim for the averment that the said exhibit was actuated by malice, pages 51 – 56 of the record, citing paragraph 6 of the Amended Statement of Defence; witness’s deposition, pages 14-15 and 62, respectively [paragraphs 4.1.8 – 4.1.10, pages 6 -7 of the brief]. He maintained that Exhibit “A” was jaundiced. He urged the court to resolve this issue in favour of the appellant.

ISSUE TWO
On this issue, counsel submitted that, by describing the appellant as an “ardent sycophant” in exhibit “A,” the respondents had ridiculed and denigrated the appellant in his reputation and esteem before right – thinking members of the society, Clerk and Lindsell on Torts (14th edition), Article 1670, page 1671. He pointed out that, having correctly identified the meaning of the word “sycophant at page 119 of the record, the lower court erred when it ranked the word equipollently with “ardent supporter” or “core loyalist” at pages 119 -120 of the record, [paragraphs 4.2.2- 4.2,3 of the brief]..
He referred to the appellant’s accolades, exhibits “C;” “D,” “E,” “F,”‘ “F1,” AND “F2” and maintained that such a person could not be a sycophant, [paragraph 4.2.4 of the brief]. He urged the court to resolve the issue in favour of the appellant.

ISSUE THREE
On this issue, he explained that the proceedings at the lower court were conducted under the Akwa Ibom State High Court Rules, 2009. He pointed out that the PW2 gave evidence of his depth of love, affection and respect for the appellant since his childhood until 1999 when he read Exhibit “A” and his love, affection and respect thereafter for the appellant took a downward turn, [paragraphs 2 and 5 of the written statement of PW2, pages 58-61 of the record. He observed that counsel for the respondents did not cross examine the witness on this very important testimony, citing pages 96-97 of the record.
He contended that the respondents failed to avail themselves of the provisions of Order 32 Rules 1(3) and 17 of the applicable rules of the lower court and Section 223 of the Evidence Act. In his submission, that was a ground for invoking the ejusdem generis rule of interpretation. He cited authorities on this rule of interpretation, [paragraph 4.3.5 of the brief].
He took the view that having failed to cross examine PW2, the respondents were deemed to have accepted his evidence as correct, Section 123 of the Evidence Act, 2011; Agbo v State (2006) 135 LRCN 808, 831; Gaji v Paye [2003] 30 WRN 151; Okasi and Anor v State [1989] 2 SCNJ 183; Odiba v Muemae (supra); Daramola v A.g. Ondo State (supra); Asafa Foods v Alraine Nig (supra); T. A. Aguda, The Law of Evidence (Ibadan: Spectrum Law Publishing, 1989) (3rd Edition) 319.
In his submission, having accepted the PW2’s evidence as correct, the lower court was wrong in disbelieving that testimony, [page 113 – 122 of the record. That, in his view, was perverse. He invited the court’s attention to the PW2’s written statement on oath. He maintained that the weight of evidence was in favour of the appellant. He urged the court to resolve the issue in favour of the appellant.

RESPONDENT’S ARGUMENT
ISSUE ONE
On his part, counsel for the respondent, Ekanem Ekanem, adopted the brief filed on January 22, 2014. He set out the conditions that must be fulfilled in an action for libel, Iloabachie v. Philips (2000) 14 NWLR (Pt 686) 43, 46; Iloabachie v Philips [2005] 129 LRCN 1769, 1774. He set out the three tests which a plaintiff must pass before he can be said to have proved the tort of defamation, citing Gattey on Libel and Slander (9th edition), Number 8, page 7, paragraphs 1.5; Ishaku and Anor v Aina (2004) 11 NWLR (Pt 883) 146, 150.
He canvassed the view that, to succeed in an action for libel, there must be proof, by evidence by a third party on the effect of the alleged publication on him. In other words, what is paramount in an action for defamation is the reaction of third parties as regards his reputation, Iwueke v Imo Broadcasting Corporation [2005] 17 NWLR (Pt 955) 447, 456; Nsirim v Nsirim [1990] 3 NWLR (Pt 138) 285.
He turned to the question of the evidence of the third party. He cited page 97 of the record for the answers elicited from PW2 in cross examination. He faulted the invocation of the ejusdem generis principle of interpretation by the appellant’s counsel. He outlined the objects of cross examination, citing F. J. Wrottesley, Examination of Witnesses in Court (2nd edition) ((London: Sweet and Maxwell, nd) 78, 108.
He maintained that, having elicited the favourable responses from PW2 that he and his community still respected the appellant, there was no further need for further cross examination of the said witness.
Counsel pointed out that the appellant tendered documents to buttress the fact that, despite the publication, his reputation and credit were not only intact, but did actually soar. He cited instances. The appellant was promoted to the rank of Associate Professor, exhibit “D,” congratulatory letter from his University’s Registrar, Exhibit “E,” page BB of the record; Exhibit “F1,” Millennium Citizen of Distinction, Excellence Award and another award, exhibit “F2.”
He took the view that, from the above exhibits, it was obvious that the appellant’s esteem had risen after the said publication. In his view, therefore, the appellant failed in the above three tests for the sustenance of a claim in libel, Gatley on Libel and Slander (supra).
He contended that, in the estimation of others, including PW2, the appellant’s credit and reputation had not diminished, but had, actually, risen. In his view, the said publication raised the appellant’s profile rather than reduce it, if the number of awards and his promotion were taken into consideration. He maintained that the evidence which the appellant and PW2 adduced did not vindicate the claim that the appellant had “been greatly injured in his credit and reputation and has been brought to scandal, odium and public ridicule…”
He submitted that all the ingredients of libel must be resolved in favour of the plaintiff before he could succeed, Concord Press Ltd v Olutola [1999] 9 NWLR (Pt 640) 578, 597- 598; Alawiye v Ogunsanya (2003) FWLR (Pt 182) 1873, 1890.
He urged the court to hold that the appellant had failed to discharge the primary onus on him to prove his claim. He submitted that in every civil case, the primary duty lies on the plaintiff to prove his claim. Where he fails to do that, he cannot succeed, Nkwo v Iboe (1998) 60 LRCN 4148, 4151. He urged the court to resolve this issue in favour of the respondents.

ISSUE TWO
On this second issue which the respondents canvassed, counsel submitted that the defences of justification, fair comment and qualified privilege availed the respondents. He cited the testimony of the first respondent to the effect that the words complained of were true in substance. He referred to Exhibit ‘H’ copy of the letter of the Academic Staff Union of Universities [ASUU]; Senior Staff Association of Nigerian Universities [SSANU] and Non Academic Staff Union [NASU], University of Uyo, dated July 21, 1999, addressed to the President of the Federal Republic of Nigeria on the subject matter of the report contained in the said publication.
He noted that the said letter indicted the appellant, page 91 of the record. He pointed out that, prior to his resignation, the appellant was a member of the first association, ASUU. He explained that the words which the appellant complained of were contained in the letter under reference, pages 53; 90 and 91 of the record.
He contended that, where the defence of justification is pleaded and relied upon, it is the broad and general impression conveyed by the publication complained of that has to be considered in determining whether the defence succeeds and not the meaning of each word complained of and taken out of con. As such, the general applicable principle of law is that the words complained of and published must be construed as a whole, AMORC v Awoniyi [1994] 7 – 8 SCNJ 390, 413 – 419.
In his submission, for the defence of justification to succeed, it is not necessary to prove the truth of each and every word comprised in the alleged libel. It, therefore, sufficed if the defendant established that the main substance of the libelous statement is true and justified. Accordingly, the defendant need not justify statement or comments which did not add to the sting of the charge, citing per Iguh JSC in AMORC v Awoniyi(supra). He explained that the sting, in the circumstance, was the allegation contained in Exhibit “H” which the respondents reported verbatim without adding to it.
He drew attention to the testimony of the first respondent that the words were fair comments made in good faith and without malice upon the said facts, which matters were of public interest, citing Street on Torts, (10th edition) 1999, page 479. He noted that, from the evidence of the first respondent at pages 98-104 of the record, it was clear that the respondents did not believe that the statements were untrue.
He took the view that to succeed in establishing the defence of fair comment, the defendant had only to show that: the matter commented on was of public interest; the statement was an expression of opinion and not an assertion of fact and the comment was fair. He noted that public interest includes the management of public institutions (including Universities).
Counsel maintained that, from the evidence of DW1, the publication was privileged and, as such, protected from litigation, Emeagwara v SPPC Co Ltd [2000] 10 NWLR (pt 676) 484. He maintained that the only thing that could defeat this defence was evidence of malice, proof of which lay on the plaintiff, Emeagwara v SPPC Co Ltd (supra). He pointed out that there was no evidence of malice in the instant case, citing Omonuwa v Enogieru (1992) 7 NWLR (Pt 255) 593, 597 where it was held that the existence of public interest or duty destroyed the existence of malice. He urged the court to resolve this issue in favour of the respondents.

ISSUE THREE
Arguing this issue, counsel endorsed the submission that an appellate court will disturb the findings of a lower court if it is shown that such findings were perverse. He, equally, agreed with the definition of perverse decision in State v Ajie [2000] 7 SC (Pt.1) 24; Agbomeji v Bakare (1998) 9 NWLR (Pt.564) 1 Ige v Adegbola (1998) 10 NWLR (Pt.571) 662.
He noted that a miscarriage of justice occurs where there are substantial errors in adjudication, with the resultant effect that the party relying on such errors may likely have a judgment in his favour, Amadi v NNPC [2000] 6 SC (Pt.1) 66. He re-iterated the submission that the appellant failed to satisfy the conditions necessary to establish a claim in libel. In his view, therefore, the appellant’s claims failed on their own and not as a result of any perverse findings of the lower court.
He maintained that no matter how perverse the lower court’s findings could have been, in the appellant’s estimation, it did not occasion a miscarriage of justice. He submitted that it is not every error or mistake, on the part of a lower court, that would vitiate its judgment. Such an error, in his submission, must be so fundamental as to occasion a miscarriage of justice, State v Ogbubunjo [2001] 12 WRN 1. He urged the court to resolve the issue in favour of the respondents.

APPELLANT’S REPLY
In the reply brief, counsel for the appellant sought to impeach the issues which the respondents put forward for the determination of the appeal, Ehuwa v O.S.I.E.C (2006) 18 NWLR (Pt.1012) 544, 572-573; Shona Jason Ltd v Omega Air Ltd (2006) 1 NWLR (Pt.960) 1, 38; FRN v Obegolu (2006) 18 NWLR (Pt.1010) 188, 221; Benaplastic Ind. v Vasilyeu (1999) 10 NWLR (Pt.624) 620, 628; Order 18 Rule 4(2), Court of Appeal Rules, 2011, [paragraphs 1 of the Reply brief].
He pointed out that, at pages 113 – 122 of the record, the lower court had overruled the respondents on their defence of justification, fair comment and privilege. As such, its decision was final, UBN v Boney Marcus (2006) 133 LRCN 300, 312; more so as they did not appeal against it, Adigun v Ayinde [1993] 8 NWLR (Pt 313) 516, 528. He impeached issue one in the respondents’ brief, [paragraph 3 – 8 of the reply brief]. He reiterated his submissions on the meaning of a perverse decision, [paragraphs 8-10 of the reply brief].

RESOLUTION OF THE ISSUE
At the lower court, the appellant’s case was that, on September 17, 1999, the first defendant, falsely and maliciously, wrote and published in the second defendant’s Newspaper, the following words concerning him, that is to say:
The Igbo students were on June 2, 1999, organized by agents of the Vice Chancellor to demonstrate on Campus against the Unions. The University authorities did nothing even to caution the students. Since the demonstration failed to achieve the desired result of the organizers and the management – namely a violent clash between the students’ body and staff – the management then sponsored one of her ardent sycophants, one Dr Inih A. Ebong, the Acting Head of Theatre Arts Department, to make a ‘request’ to the University Senate to discuss and decide on the present state of the University. The paper written by the said Dr Ebong, as arranged by the management, was duly presented to Senate at her meeting 8/7/99.
In its judgment [page 122 of the record], the lower court found that the above publication did not defame the appellant.
writers and jurists are ad idem that the province of the tort of defamation, either in its written genre [technically known as libel] or in its transient species [called slander], is the injury occasioned on another person’s reputation by either written or spoken words, P. Milmo and W Rogers (eds), Gatley on Libel and Slander (Ninth Edition) (London: Sweet and Maxwell, 1998) paragraph 1. 5; G. Fawehinmi, Nigerian Law of Libel and the Press (Lagos: Nigerian Law Publications Ltd, nd) passim; G. Kodilinye and O. Aluko, Nigerian Law of Torts (Ibadan: Spectrum Books Ltd, 2007) (Reprint) 136; Toltey v Fry [1930] 1 KB 467, 479, approvingly endorsed in Egbuna v Amalgamated Press of Nigeria Ltd [1967] 1 All NLR 25, 29, Byrne v Dean [1937] 1 KB 818.
True, indeed, the law takes the view that nothing could be more intangible than a person’s reputation, dignity or feelings. In essence, the injury to these intangible attributes forms the essence of the tort of defamation, Offoboche v Ogoja Local Government (2011) LPELR -2265 (SC) 28, or, more accurately, the law of libel and slander, A. Mullis, “The Law of Defamation,” in A. Grubb (ed), The Law of Tort (London: Butterworths, 2002) 1014, paragraph 24. 1.
Like English Law, which gives effect to the Biblical ninth commandment that a man shall not speak evil, falsely, of his neighbor fand supplies a temporal sanction], per Lord Diplock in Horrocks v Lowe [1975] AC 135, 149, cited in A. Mullis, “The Law of Defamation” (supra), Nigerian Law does not brook the habit of people maligning or disparaging their neighbours before third parties, Sketch Publications Ltd v Ajagbemokeferi[1989] 1 NSCC 346; Ciroma v Alli [1999] 2 NWLR (Pt 590) 317; Nsirim v Nsirim [1990] 3 NWLR (Pt 138) 285, 297.
Such statements either tend (a) to lower the plaintiff in the estimation of right-thinking members of 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, Sketch Publications Ltd v Ajagbemokeferi (supra); Corabi v Curtis Publications Co 441 pa. 432, 273 A 2d, 899, 904, cited with approval in Guardian Newspapers and Anor v Ajeh (2011) LPELR -1343 (SC) 42-43, C-A.
However, to constitute a cause of action, Dairo v UBN Plc [2007] 7 SC (Pt 11) 97, citing Ezomo v Oyakhire [1984] 1 NWLR (Pt 2) 195); Egbue v Araka [1989] 3 NWLR (Pt 84) 598, they must be false and disparaging statements against a person to a third person, Sketch Publications Ltd v Ajagbemokeferi (supra); Ciroma v Alli [1999] 2 NWLR (Pt 590) 317; Nsirim v Nsirim [1990] 3 NWLR (Pt 138) 285, 297; that is, the injury must be to the plaintiffs reputation in the minds of right-thinking people, Edem v Orpheo Nig Ltd [2003] 13 NWLR (Pt 838) 537 , 558; Sketch Publications Ltd v Ajagbemokeferi (supra); Gatley on Libel and Slander(supra).

The Nigerian jurisprudence on the constitutive ingredients which a plaintiff in an action for libel must prove now spans a wide compass. We can only scratch the periphery. Iloabachie v Philips [2008] 8 WRN 79; [2005] All FWLR (Pt. 272) 223; [2005] 5 SCNJ 84; [2005] 13 NWLR (Pt. 943) 695; Din v African Newspaper (Nig) Ltd [1990] 3 NWLR (Pt. 139) 392; Sketch Publishing Co Ltd v Ajagbemokeferi (supra); Ekanem-Ita v Fetuga [1991] 7 NWLR (Pt. 204) 449; Concord Press (Nig) Ltd v Olutola [1999] 9 NWLR (Pt. 620) 578; African Newspapers of Nigeria Ltd v Coker [1973] 1 NMLR 386; Benue Printing and Publishing Corporation v Gwagwada (1989) 4 NWLR (Pt.116) 439 etc.
In all, these authorities are unanimous that such a plaintiff can only be entitled to judgment if he proves that the defendant: (i) published a statement in a permanent form; (ii) that the statement referred to him; (iii) that the statement was defamatory of his person in the sense that -(a) it lowered him in the estimation of right-thinking members of the society or (b) it exposed him to hatred, ridicule or contempt; or (c) it injured his reputation in his office, trade or profession; or (d) it injured his financial credit.
The cases are many. We shall, only, cite one or two of them here, Sketch Publishing Co Ltd v Ajagbemokeferi (1989) LPELR -3207 (SC) 37, B – G; African Newspapers Ltd v Ciroma [1996] 1 NWLR (Pt 423) 156; Ugo v Okafor [1996] 3 NWLR (Pt 438) 542; Guardian Newspapers Ltd and Anor v Ajeh (2011) LPELR – 1343 (SC) 15, B – D; Iloabachie v Iloabachie [2005] 13 NWLR (Pt 943) 695, 736.
Although, the “right-thinking person” standard has become a subject of scathing strictures, Markesinas and Deakin, Tort Law (1994); Professor Prosser, Prosser and Keaton on Torts (1984, 5th edition), cited in A. Mullis, (supra), Nigerian courts still espouse that standard, Sketch Publishing Co Ltd v Ajagbemokeferi (supra); African Newspapers Ltd v Ciroma (supra); Ugo v Okafor (supra); Guardian Newspapers Ltd and Anor v Ajeh (supra); Iloabachie v Iloabachie (supra).
Failure to establish any one of these ingredients is fatal to the plaintiffs case, Okolo v Midwest Newspapers Corp [1997] NSCC 11; Okafor v Ikeanyi [1979] 1 NSCC 44; Sketch Publishing Co Ltd v Ajagbemokeferi (supra); African Newspapers Ltd v Ciroma [1996] 1 NWLR (Pt 423) 156; Ugo v Okafor [1996] 3 NWLR (Pt 438) 542; Din v African Newspapers of Nig Ltd [1990] 3 NWLR (Pt 139) 392; Nsirim v Nsirim [1990] 3 NWLR (Pt 138) 295.
In the instant case, the state of pleadings and evidence obviated the need to prove the first and second ingredients, namely, that the defendant (i) published a statement in a permanent form; (ii) that the statement referred to him [plaintiff]. The lower court threw more light on this point at page 118 of the record:
In the case at hand, the words complained of are as pleaded in paragraph 3 of the plaintiff’s Statement of Claim…There is no controversy about the fact that the requirement of publication has been met. The words complained of were written in a Newspaper published and owned by the second defendant while the first defendant is described as an employee of the second defendant. And the Newspaper has a wide circulation. Secondly, the publication, specifically, mention (sic) the name of the plaintiff, therefore, at least, part of the article concerns the plaintiff. Thirdly, the publication is in a permanent form having been published in a newspaper.
In other words, the only outstanding question [at the lower court] was whether the publication was defamatory of the plaintiff in the sense that -(a) it lowered him in the estimation of right-thinking members of the society or (b) it exposed him to hatred, ridicule or contempt; or (c) it injured his reputation in his office, trade or profession; or (d) it injured his financial credit, Sketch Publishing Co Ltd v Ajagbemokeferi (supra); African Newspapers Ltd v Ciroma (supra); Ugo v Okafor (supra); Guardian Newspapers Ltd and Anor v Ajeh (supra); Iloabachie v Iloabachie (supra).

ONUS OF PROOF
Against the above background, therefore, the onus was on the appellant [as plaintiff at the lower court] to demonstrate that the words he complained of were defamatory or that they conveyed a defamatory imputation, Din v African Newspaper (Nig) Ltd [1990] 3 NWLR (Pt. 139) 392; Onyejike v Anyasor (1992) 1 NWLR (Pt.218) 437; Nsirim v Nsirim (1990) 3 NWLR (Pt. 4) 704; [1990] 5 SCNJ 174, 184.
Before embarking on the resolution of the actual question whether the said publication was defamatory of the plaintiff, the lower court, most admirably, devoted considerable energy in charting the nexus between the pleadings and evidence on record. Due to their bearing on this issue, we shall set them out in extenso:
In other to determine the falsity or otherwise of the words complained of, as a libel, one would have to look at the totality of the relevant pleadings and evidence in this case. Pleading (sic, reading) the passage complained of thoroughly and dispassionately, one gets the following impressions:
(i) There was crisis in the University of Uyo between the Staff Unions and the Management led by the Vice Chancellor;
(ii) To neutralize the Unions, the loyalists of the Vice Chancellor organized Igbo students in the institution to demonstrate against the Unions;
(iii) The demonstration passed off peacefully much against the expectation of the University authority who had wished for some confrontation between the demonstrating students and the Unions;
(iv) The disappointed University Management then caused the plaintiff, one of their ‘ardent sycophants’ or core loyalists to present a request to the Senate of the University to ‘discuss and decide on the present state of the University;’
(v) The write-up of the plaintiff was, actually, presented by the University Management to the Senate of the University at her meeting of 8/7/99 [page 118 of the record].
The court, then, conualized the offending words “ardent sycophant” within the ambience of the passage. Hear this:
Now, apart from the use of the words ‘ardent sycophant’ to describe the plaintiff, can it be said that the words complained of, as broken down here, have defamatory imputations? In other words, is the general tread (sic, trend) of the passage capable of having any or all of the imputations or innuendos or interpretations which the plaintiff has pleaded in paragraph 4(a) -(c) so as to lower the credit of the plaintiff in the estimation of right-thinking members of the society generally and expose him to hatred, contempt or ridicule? The question is important for if answered in the affirmative, the next question will be whether, in the circumstance, the words, in fact, lowered the estimation of the plaintiff in the minds of right-thinking members of the society but if it is answered in the negative then that would be the end of the enquiry as to the liability of the defendants.
[page 119 of the record].
The court turned to the proper approach to be adopted in interpreting the offending words. At page 119 of the record, it noted that: Part of the plaintiff’s grouse with the passage seems to be the use of the expression ‘ardent sycophant.’ But in the circumstance of this case, and from the totality of the con of the passage, would it be justified to single out two words in the whole passage and use it (sic, them) to determine the general trend of the passage if indeed the whole passage its own is not libelous? The general meaning of a sycophant is one who flatters another in order to gain favour from him. But, in the circumstance of this case, is that expression, taken together with the background of the facts giving rise to the publication of the offensive words libelous? I think not. Although in defamation, words complained of must be given their natural and ordinary meaning, single words are not to be singled out to impute defamatory meanings to them but they must be taken in conjunction with the totality of the passage.
The court advanced reasons to buttress its conclusion that, taken in conjunction with the totality of the passage, the said expression “ardent sycophant” could not be said to be libelous. It explained that:
In the present case, as presented by the parties, the University of Uyo community was polarized between the campus unions and their supporters, on the one hand and the Vice Chancellor/University Management and their supporters, on the other [hand]. It is evident that the plaintiff belongs to the camp of the supporters of the Vice Chancellor/Management who are against the demands of the unions and the methods and tactics of the unions.
From the pleadings of the plaintiff and his evidence, i.e. witness deposition on oath adopted in this court, the plaintiff disagreed with the unions so irreconcilably that he had to withdraw his membership of ASUU of the Campus union which he initially belonged (sic) and boycotted the strike action carried out by them. It would seem that the plaintiff preferred to support the Vice Chancellor and the Management in the face off with the unions. I hold the view that, in the circumstances summarized above, and having regard to the pleadings and evidence, the expression ‘ardent sycophant’ used to characterize the plaintiff means no more than an ardent supporter or core loyalist of the Vice Chancellor and the Management of the University.
In my view, there is nothing defamatory about being a core loyalist or ardent supporter of the university authority…Indeed, in the con of the case, the plaintiff is said to have cooperated with the Vice Chancellor to write a paper to the University Senate to discuss and decide on the situation in the University…The passage goes on to state that the plaintiff actually wrote the paper and that the Senate sat and deliberated on it… Although taken in isolation, the single word ‘sycophant’ may not be flattering of the plaintiff yet the entire publication taken together do not have a defamatory sting. I am unable, in the con of the entire publication, to associate the word complained of with any of the alleged innuendos set out in paragraph 4 of the Further Amended Statement of Claim. [page 120 italics supplied]
Not done yet, it opined that “in the instant case, the onus is on the plaintiff to prove that the publication was in fact defamatory of him. This is where the requirement of evidence from a third part to establish the defamation becomes a sine qua non,” [page 121 of the record]. That third part was PW2. This witness’s perception of the reputation of the plaintiff, from the finding of the lower court, was not affected by the publication. Listen to the court:
I have perused the evidence of PW2, one Daniel Edet Etim, a farmer from the same village as the plaintiff who gave evidence for the plaintiff. The plaintiff is a Ph.D holder; an Associate Professor and a (sic) one time Acting Head of the Department of Theatre Arts in the University of Uyo. PW2 under cross examination appeared not to be affected by the publication. He testified that himself and members of his community, from where the plaintiff comes, have no change opinion (sic) of the plaintiff Their regard for him is that of love and respect That was evidence in support of the plaintiff’s case even when PW2 filed a four page statement on oath stating how his opinion of the plaintiff had changed for the worse after reading the alleged defamation. I do not believe or give credence to the written statement on oath one bit rather I place reliance on the answers to his cross examination. [page 121 of the record, italics supplied]
We, entirely, agree with the lower court that, “from the totality of the con of the passage,” page 119 of the record, it would be unjustifiable to single out the two words “ardent sycophant” from the whole passage and pass them off as libelous. That would be a wrong approach for “words, like people, are judged by the company they keep,” per Weltner J in Anderson v South-eastern Fidelity Insurance Co 307 SE 2d 499, 500 (183) cited in A. Mullis, “The Law of Defamation” (supra).
we find considerable force in the view, which we adopt as our reasoning in this judgment, that “the meaning of words is not to be judged in isolation, but must be considered in the light of the con in which the publication was made…,” A. Mullis, “The Law of Defamation” (supra) page 1046, paragraph 24. 67.
Now, part of the answers elicited from the PW2 during cross examination on June 15, 2011 appeared on page 97 of the record. Read on:
– You say the plaintiff is the first person in Afaha Obio Eno to read up to Ph.D?
– Yes my Lord.
– You say he is an Associate Professor?
– Yes my Lord.
– Because of that you love and respect him?
– Yes my Lord’
– People in your community also love and respect him?
– Yes my Lord.
– In other words, he is well respected?
– Yes my Lord

Somewhat, most surprisingly, when called upon to re-examine the said witness, counsel for the plaintiff [now, appellant], E. I. Ekanem, announced to the court that he had “no re-examination,” [page 97 of the record]. On the contrary, learned counsel for the appellant sought to employ the medium of the appellant’s brief to remedy what he failed to do when the lower court called on him to re-examine his witness.
At paragraph 4.3.5, page 10 of the appellant’s brief, he argued “that the last two questions by the respondent and the last three answers by the PW2 reproduced above, have a meaning and association ejusdem generis with the first two questions and answers reproduced above, having particular regard to the all important question “because of that you love and respect him?” He cited several authorities.
With respect, we are not minded to entertain the view that learned counsel does not know the meaning and application of the said ejusdem generis rule. As learned counsel, duly called to the Bar, we assume he does. However, for the avoidance of doubt, we think it would be better to refer to the very authorities he cited to adumbrate the meaning and application of the said rule of interpretation.
In Fawehinmi v IGP (2002) LPELR -1258 (SC) 36, D-E, Uwaifo JSC explained that the ejusdem generis rule helps to confine the construction of general words within the genus of special words which they follow in a statutory provision or in a document, citing Ashbury Railway Carriage and Iron Co v Riche (1875) L.R.H.L. 653; Attorney-General v Seccombe (1911) 2 K.B. 688; also, FRN v Ifegwu [2003] 112 LRCN 2233, 2278; Ehuwa v O.S.I.E.C. [2002] 18 NWLR (Pt 1012) 544, 595; Abacha v FRN [2006] 4 NWLR (Pt 970) 239, 295; Bromik Motors v Wema Bank [1983] 1 SCNLR 296.
In Kabirikim v Emefor and Ors (2009) LPELR -902 (SC) 18 – 21, A-G, Onnoghen JSC, threw further light on the meaning and application of the principle thus:
Black’s Law Dictionary 8th Edition, defines the rule thus:
Under ejusdem generis cannon of statutory construction where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated.”

FINDINGS OF FACT
In actions involving libel, the question whether the words complained of are in fact defamatory is that of the jury to decide while the question whether they are capable of conveying a defamation meaning in the minds of reasonable persons in a particular case is for a judge to decide upon the evidence before him. In Nigeria, where there is no jury trial, it is the duty of a trial court to make findings of fact whether the words complained of are capable of bearing defamatory meaning and whether the plaintiff is, actually, defamed by these words, Sketch v Ajagbemokeferi [1989] 1 NWLR (Pt.100) 678.
We are satisfied that, from the above excerpts, the lower court, dutifully, discharged that obligation, that is, made concrete findings of fact that the two words “ardent sycophant,” which the appellant singled out from the publication in question, did not defame the appellant. We endorse the court’s findings as our concurrent findings on this question.
As a corollary, the question whether the words complained of are, in their natural and ordinary meanings, defamatory, is one of fact. Thus, it is the effect the words have on persons who read them that constitutes the libel, Z. P. Ind Ltd v Samotech Ltd (2007) 16 NWLR (Pt 1060) 315, 348.
In effect, there must be proof by evidence by a third party of the effect of alleged publication. What is important, therefore, in libel is the reaction of a third party to the publication complained of. The reason is simple. It is not what the plaintiff thinks about himself, but what a third party thinks of the plaintiff as regards his reputation.
A person’s reputation is not based on the good opinion he has of himself but the estimation in which others hold him, Economides v Thomopoulos and Co Ltd [1959] SCNLR 40; Ngilari v Mothercat Ltd (1999) 13 NWLR (Pt. 636) 626; Nigerian Produce Marketing Board v Adewunmi [1982] 11 SC 111; Ishaku v Aina (2004) 11 NWLR (Pt. 883) 146; Alawiye v Ogunsanya (2004) 4 NWLR (Pt. 886) 390; B.P.P.C. v Gwagwada (1989) 4 NWLR (Pt. 116) 439; Egbuna v Amalgamated Press (1967) 1 All NLR 25; Okafor v Ikeanyi [1979] 3 – 4 SC 99; Skye Bank Plc and Anor v Akinpelu (2010) LPELR -3073 (SC) 38, F – A.
The implication of the earlier-cited findings of the lower court is that the third party [PW2], whom the plaintiff marshaled, had a favourable view of his [plaintiff’s] reputation. In other words, the third party [PW2] and his people still held the plaintiff in high esteem.
It, therefore, simply means that, like the lower court found, the appellant [as plaintiff] did not succeed in proving that the said publication was libelous, that is, that the publication was defamatory of his person in the sense that -(a) it lowered him in the estimation of right-thinking members of the society or (b) it exposed him to hatred, ridicule or contempt; or (c) it injured his reputation in his office, trade or profession; or (d) it injured his financial credit Sketch Publishing Co Ltd v Ajagbemokeferi (supra); African Newspapers Ltd v Ciroma (supra); Ugo v Okafor (supra); Guardian Newspapers Ltd and Anor v Ajeh (supra); Iloabachiev Iloabachrb (supra). We have no difficulty in affirming the lower court’s findings as the concurrent findings of this court on this question.
Not having proved the third ingredient, the answer to issue one is that the appellant was not entitled to the reliefs claimed, Okolo v Midwest Newspapers Corp (supra); Okafor v Ikeanyi (supra); Sketch Publishing Co Ltd v Ajagbemokeferi (supra); African Newspapers Ltd v Ciroma (supra); Ugo v Okafor (supra); Din v African Newspapers of Nig Ltd (supra); Nsirim v Nsirim (supra). We find no merit in his complaint on this issue. We, accordingly, resolve the said issue against the appellant.
Having endorsed the lower court’s elaborate and impressive findings with regard to issue two, all we need to add here is that, we, equally, endorse the said court’s findings that, in the circumstances which the court described above [pages 118 – 121 of the record], the use of “ardent sycophant” to describe the appellant was not libelous. We resolve the issue against him. We find it, rather, discomforting that the respondent could throw up an issue which the lower court rejected at page 122 of the record without a cross appeal.
According to the court “I entirely agree with the plaintiff’s counsel that the pleading in paragraph 13 of the Amended Statement of Defence falls short of what is required as adequate pleading for raising the defence of fair comment, justification or qualified privilege. There was no evidence to justify the defence.” Accordingly, we endorse the appellant’s submission that the said issue two in the respondent’s brief is incompetent.
On the appellant’s issue three, we only need to remind ourselves that the evaluation of evidence and ascription of probative value to such evidence are the primary function of a Court of trial which saw, heard and duly assessed the witness. Thus, where, as in this case, the trial court unquestionably evaluated the evidence and justifiably assessed the facts, our duty in this court is to find out whether there was evidence on record on which the lower court could have acted. Once there is sufficient evidence on record from which the trial Court arrived at its findings of fact, this court cannot interfere.
We have a duty to respect the findings of fact made by a trial court [such as the lower court herein] when it is clear that it has adequately performed its primary duty of evaluation and ascribing probative value to the evidence before it. In circumstances such as this, we approach the said findings with due caution and not on the basis that we would or might have found otherwise.
The essential consideration is that there is enough evidence on record from which the trial Court’s findings can be supported, Woluchem v Gudi [1981] 5 SC 29t; Igwego v Ezeogo [1992] 6 NWLR (Pt.249) 561; Joel Golday Co. Ltd v C.D.B. Plc [2003] 5 NWLR (Pt 814) 586; Ezekwesili v Agbapuonwu [2003] 9 NWLR (Pt 824) 377.
As we had indicated earlier, at page 97 of the record, the PW2, in cross examination, affirmed their unalloyed admiration of the appellant. The lower court saw him and watched his demeanour. It, accordingly, found that ” PW2 under cross examination appeared not to be affected by the publication. He testified that himself and members of his community, from where the plaintiff comes, have no change opinion (sic) of the plaintiff, Their regard for him is that of love and respect, That was evidence in support of the plaintiff’s case.”
We find no merit in the appellant’s complaint in this issue. Having resolved the three issues against the appellant, we find that we must, and we hereby, enter an order dismissing this appeal as unmeritorious. We are, truly, enamoured of the industry that went into the judgement of the lower court. We commend His Lordship for his abiding sense of duty and enviable acuity of discernment. Appeal dismissed. Parties are to bear their respective costs.

DALHATU ADAMU, J.C.A.: I have been privileged to have gone through the draft of the judgment of my learned brother, C.C. Nweze, JCA, in this appeal. He has thrashed all the three (3) issues adopted by both parties which he has reframed into one (1) lone issue as follows:-
“Whether having regard to the pleadings and evidence on record the appellant (as plaintiff) was entitled to judgment in his claims for damages for libel.”
The reframed issue has been discussed thoroughly in the lead judgment. I can but only agree with the final resolution of the single issue as reframed. Consequently, I too find no merit in the appeal and I find it unmeritorious and hereby also dismiss it. I abide by the other consequential orders as made in the lead judgment including the order on costs.

ONYEKACHI AJA, OTISI, J.C.A.: My learned Brother, Chima Centus Nweze, JCA, made available to me a draft copy of the Judgment just delivered, dismissing this appeal.
Characteristically, all issues raised for determination in this appeal have been most eruditely and comprehensively addressed. I am in complete agreement with the reasoning and the conclusions reached; which I adopt as mine.
This appeal is also dismissed by me.

Appearances

Ernest UsahFor Appellant

AND

Ekanem EkanemFor Respondent