MR CYRIL OJINI v. MR. SAMUEL JOHNSON & ANOR
(2015)LCN/7994(CA)
In The Court of Appeal of Nigeria
On Monday, the 31st day of August, 2015
CA/C/106/2014
TORT: TORT OF SLANDER; WHETHER THE EVIDENCE THAT THE SLANDEROUS WORDS WERE INDEED UTTERED BY THE DEFENDANT IS ESSENTIAL TO THE ESTABLISHMENT OF A CASE FOUND ON SLANDER
The evidence that the slanderous words were indeed uttered by the defendant is essential to the establishment of a case found on slander. per. JOSEPH OLUBUNMI KAYODE OYEWOLE J.C.A.
PRACTICE AND PROCEDURE: WHETHER EVERY ERROR ERROR OR OMISSION BY A TRIAL COURT WOULD LEAD TO A REVERSAL OF ITS JUDGMENT
It is trite that not every error or omission by a trial Court would lead to a reversal of its judgment. see COOKEY VS FOMBO (2005) 22 NSCQR 411 and OLUBODE vs SALAMI (1985) 2 NWLR (PT 7) 282. per. JOSEPH OLUBUNMI KAYODE OYEWOLE J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
MR CYRIL OJINI Appellant(s)
AND
1. MR. SAMUEL JOHNSON
2. MR. SUNDAY JOHNSON Respondent(s)
JOSEPH OLUBUNMI KAYODE OYEWOLE J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court Of Cross-River State, Ugep Judicial Division, delivered on the 6th day of November, 2013 by Ita J. The antecedent facts leading to the appeal are straightforward. The 1st respondent had successfully appealed against his conviction for the criminal allegation of receiving stolen property. Believing that his prosecution was maliciously actuated by the appellant, he took out a writ for malicious prosecution against the appellant at the end of which the said suit was found unmeritorious.
After the judgment was delivered, the parties had altercations in the Court premises which resulted in the appellant taking out a writ against the respondents for the torts of assault and slander. Specifically, the appellant in his writ of summons dated 16th March, 2010 claimed as follows:
“1. The sum of N5million (five million Naira)
being general damages for assault and
slander in that on Wednesday the l0th
March, 2010, within the precinct of
1
the High Court of Justice, Ugep the
defendants walked towards the Mercedes
Benz (Estate) Car of the claimant, opened
the door while claimant was sitting in the
driver’s seat, aggressively and without
any provocation assaulted the claimant
by pointing or poking their face fingers on
the face of the claimant and shouting and
publishing the defamatory words against
the claimant to members of the public
including Mr. Jude U. Onwuneme, Mr.
Obono Duke etc thus “you this thief, you
went to Calabar to bribe the Judge to give
you judgment, you this thief, we will
surely deal with you”.
2. An order of injunction restraining the
defendants by themselves including their
agents & servants from further assaulting
and slandering the claimant.
2
3. An order directing the defendants to
withdraw the slanderous statement
averred above and rendering of an
unqualified apology to the claimant.”
The parties joined issues in their pleadings. Appellant’s testimony at trial was supported by a witness while the 2 respondents testified in support of their averments. Thereafter both counsel addressed the Court upon which judgment was reserved. In the judgment delivered on the 6th November, 2013, the learned trial Judge found no merit in the appellant’s case and dismissed it.
Dissatisfied, the appellant approached this Court via a notice of appeal filed on 14th November, 2013 containing 3 grounds. At the hearing of the appeal, the learned lead counsel for the appellants, Chief Obono-Obla adopted his appellant’s brief filed on 9th October, 2014. Therein the learned counsel identified and argued 3 issues for determination as follows:
1. Whether the learned trial Judge was
correct when he held that the failure of
the appellant to call as witnesses, Court officials and
3
police officers that
witnessed the wrongful acts alleged by
the appellant against the respondents
was fatal to the appellants case.
2. Whether the appellant is not entitled to
the reliefs sought regard being had to
the pleadings and evidence called by
him.
3. Whether the award of costs of
N25,000.00 (twenty five thousand
Naira) against the appellant by the
learned trial Judge is justifiable regard
being had to the facts of the case.
For the respondents, Mr. Okoro, their learned counsel equally formulated 3 issues in terms not too dissimilar to those of the appellant as follows:
1. In the setting of the appellant’s
pleadings, whether it was inapt for the
trial Court to infer that the appellant’s
failure to call the disinterested and
independent witnesses he alluded to<br< p=””
</br<
4
stirred the presumption that were they
called their evidence would have been
unfavourable to his case.
2. On a calm assessment of the evidence
on record and a consideration of the
conclusions reached by the trial court
from that evidence, whether the judgment appealed from is not
sustainable.
3. Whether it was improper exercise of
discretion for the trial High Court to
have awarded N25,000.00 cost against
the claimant/appellant.
Since the issues formulated by the two sides are basically the same, they shall be accordingly considered seriatim with those formulated by the appellant as guide.
The first issue to be resolved therefore is whether the learned trial Judge was correct when he held that the failure of the appellant to call as witnesses, court officials and police officers that witnessed the wrongful acts alleged by the appellant against the respondents was fatal to the appellant’s
5
case.
On this first issue, Chief Obono-Obla submitted that a party in a civil action is required to adduce evidence in support of facts in dispute and is under no obligation to call a particular witness or number of witnesses to be entitled to judgment. He urged the Court to hold that the trial Court was in error to have held against the appellant on the ground that specific witnesses were not called. He submitted that Section 167 (d) of the Evidence Act was wrongly applied and unilaterally introduced by the trial Judge without the input of parties or counsel and that the evaluation made of the testimony of PW2 at trial was erroneous and should be revisited by this Court. He referred to ALLI VS ALESINLOYE (2000) 6 NWLR (PT 660) 177, BELLO VS KASSRM (1969) 1 NMLR 148, WOLUCHEM VS GUDI (1981) 5 SC 291 AT 295 OKPIRI VS JONAH (1961) 1 ALL NLR 102 and OKUNZUA VS AMOSU (1992) 6 NWLR (PT 248) 416 at 435.
Responding, Mr. Okoro submitted that from the pleadings of the parties, PW2 had been held out as key actor, partisan to the appellant and that the appellant specifically mentioned various witnesses other than the said PW2 which he failed to
6
call thereby creating a justifiable basis for the invocation of Section 167 (d) of the Evidence Act by the learned trial Judge.
He further submitted that the said Section 167 (d) emerges in the course of evaluation of evidence and would not have permitted any input from parties or their counsel. He referred to BAMGBOYE VS UNIVERSITY OF ILORIN (1999) 10 NWLR (PT 622) 290 at 353, AGBI vs OGBEH (2006) ALL FWLR (PT 329) 941 at 978, OSIGWE vs UNIPETROL (2005) ALL FWLR (PT 267) 1525 at 1543-1544, UDEAGU vs BCC PLC (2005) ALL FWLR (PT 276) 720 at 734, B.O.N. LTD vs SALEH (1999) 9 NWLR (PT 618) 331 at 352 and PAN AFRICAN BANK LTD VS UBANI (1999) 13 NWLR (PT 633) 166 at 174.
It is apposite at this stage to visit the portion of the judgment of the learned trial Judge relevant to this issue for clarity on what transpired. Lines 7-29 of page 119 and 1-7 of page 120 of the record of appeal contain as follows:
“At paragraph 6 of their amended statement
of defence, the defendants averred that the
claimant and his 2 friends, Damian and Jude
Onwumere, matched out of the Court
7
room, after judgment in suit No. HUG/90/2001 had
been pronounced against the claimant. That
all three (3) of them started cursing and
raining abuses on the defendants in Igbo
language which included calling the
defendants, thieves and slaves. I must point
out here that evidence given by the
defendants in support of those pleadings
were not seriously challenged during cross-
examination nor did the claimant give
contrary evidence. It is a well known
principle of the law of defamation that a
statement is not slanderous if it was
provoked by an initial attack by the
claimant. Such statement attracts qualified
privilege. The only person the claimant
called as a witness who heard the words
complained of here was that Jude Onwumere.
He testified as PW2. At
8
paragraph 7 of the
amended statement of defence the
defendants referred to Jude Onwumere as a
cohort of the claimant. In the face of those
allegations what pique me now is why did the
claimant decide to call only this Onwumere
whom the defendants say joined the claimant
to abuse them. Where are the police officers
and Court officials who also saw what
happened and heard the offending words, as
pleaded by the claimant himself. Where are
the police officers who arrested the
defendants on the spot when the defendant
spoke the words complained of. Why has
none of them been called. In the face of
those unanswered questions I hereby invoke
S. 167 (d) of the Evidence Act, 2011 against
the claimant and presume that had the
claimant called any of those policemen or
9
court officials, the claimant said were present
and heard the defendant say the words
complained of to the claimant, they would have given evidence which would be
unfavourable to the claimant. That is why
the claimant did not call any of them. In the
face of the issues as Joined on the pleadings
prudence dictated that the claimant calls
the police and/or Court officials, the only
independent and uninterested witnesses to
the incident. The defendants say they never
spoke the words complained of.”
The cause of action being considered by the learned trial Judge was slander. This specie of tort was described thus by Chukwuma-Eneh, JSC:
“It is trite that slander on the other hand has
been defined as a false and defamatory
statement (i.e. of a transient nature) made or
conveyed by spoken words, sounds, looks,
signs and gestures
10
or in some other non- permanent
form (as against libel which is
required to be in some permanent form)
published of and concerning the plaintiff,
that is, to a person other than the plaintiff
without any lawful justification or excuse
whereby the plaintiff has suffered special
damages. I must add that slander is
actionable per se without proof of damage
being required to be proved by the plaintiff to
succeed in the action. See Words and Phrases Legally Used Vol. 5, S-Z, p.83, and also Egbe v. Adefarasin (1987) I NSCC (vol.l8)l.”See
ORUWARI VS OSLER (2012) 52 NSCQR 107 at
130.
?The evidence that the slanderous words were indeed uttered by the defendant is essential to the establishment of a case found on slander.
At trial, the appellant called PW2 as his witness in addition to his testimony. Civil cases are contested on the basis of pleadings filed
11
by parties. In the case at hand, the pleadings of the parties consist of the Statement of Claim of the claimant (now appellant), the Amended Statement of Defence of the defendants (now respondents) and the Reply to the Statement of Defence of the claimant (now appellant).
The involvement of the said PW2 in the events leading to the transaction in which the slanderous words were uttered, was related in the pleadings of the two parties.
In paragraph 7 of the statement of claim, the claimant mentioned the said PW2 as one of his friends and companions who accompanied him to his car parked in the Court premises after the judgment in the litigation initiated against him by the 1st respondent was delivered in his favour.
In paragraphs 8, 9, 10 and 11 of the said statement of claim on page 4 of the record of appeal, he averred as follows:
“8. The Claimant averred that while he was in the driver seat of his car waiting for his counsel, the defendants aggressively and menacing walked toward the car, forcefully opened the door and pointed or poked their fingers into his face and shouted at him, you this thief, you went to Calabar to bribe the
12
judge to give you judgment, you thief, we shall deal with you.”
9. The Defendants made an effort to drag the Claimant out of his car but one of the Claimant’s companions came out of the car to restrain the Defendants from forcefully dragging the Claimant out of the car. The Defendants shouting, caused a commotion, which attracted a crowd by litigants, police officers and Court workers to the scene as they were persistently shouting on top of their voices that they will deal with the claimant whom they called a thief and a bribe giver, claiming that he had bribed the Hon. Justice Akon lkpeme, the Judge, to give judgment in the Claimant’s favour.
10. The persistent shouting and howling of insults, abuses and slandering of the person of the Claimant and assault to his person and impugning of the integrity of the Honourable Justice Akon lkpeme by the Defendants attracted a team of police officers posted to the High Court and Chief Magistrate’s Court who quickly arrested the Defendants to stop them from battering the claimant. However, Barrister Kelvin Ejukwa (counsel to the 1st Defendant in Suit No. HUG/90/2001)
13
intervened and dissuaded the police officers from taking the Defendants to the Divisional Police Headquarters, Ugep.
11. The claimant avers that the slandering of his person published to the crowd of Court workers and Police Officers and passers by, to the effect that the Claimant is a thief and had bribed Honourable Justice Akon Ikpeme to obtain a favourable Judgment in Suit No. HUG/90/2001 by the Defendants has impugned and damaged his credit, character and reputation among right thinking members of the public.” (underlining mine).
The amended statement of defence of the respondents is on pages 43-45 of the record of appeal and in paragraph 6 made some averment which if unchallenged, moved PW2 from an innocent companion of the appellant to active disputant. The said averment is as follows:
“6. Judgment was delivered in the said suit on
the 10th of March, 2010 dismissing the action.
Soon after the judgment the claimant, Damian
and one Jude Onwuneme matched out in
ecstasy while
14
the defendants waited behind a
little to see the 1st defendant’s lawyer- K.U.
Ejukwa Esq. By reason, that the Court rose not
too long thereafter the 1st defendant had the
chance of meeting with his lawyer and in the
company of his junior brother (the 2nd
defendant) he now started moving out of the
Court premises. Unknown to them, the
claimant, Damian and Jude Onwuneme had
taken siege and were lying in wait at the point
of the pathway between the District Court and
the Magistrate Court halls. As soon as the
defendants tried to pass through that area,
they all started cursing and raining abuses on
the defendants in Ibo language including
calling them thieves, slaves for the slave
market and taunting him that had said the 1st
defendant will sell his motorcycle to do the<br< p=””
</br<
15
case and still lose the case.”
The appellant made no attempt to rebuff this averment in the Reply to the Statement of Defence.
The statement on oath of the said PW2 which formed his evidence in chief at trial can be found on pages 16-18 of the record of appeal.
In the said statement, the said PW2 confirmed that he was in Court on the date of the incident at the instance of the appellant who he had known for more than twenty years and that the incident attracted a crowd including Court workers and police officers who arrested the respondents. Specifically paragraphs 4 and 5 contain as follows:
“4. The shouting and howling by the defendants of
unprintable abuses, insults and slander of the
person of the Claimant to the effect that the
Claimant was a thief and had bribed
Honourable Justice Akon lkpeme attracted a
throng of crowd from curious workers of the
High Court and Chief Magistrate’s Court and
scores of Police Officers (attached to these
<br< p=””
</br<
16
Courts) and litigants to the scene.
5. The defendants were subsequently arrested by
the Police Officers who were about to march
them to the Divisional Police Headquarters,
Ugep, but for the intervention of Barrister
Kieran Ejukwa, Counsel to the 1st Defendant
in the case which Judgment was delivered
that morning and who dissuaded the police
Officers from taking the Defendants away.”
The learned trial Judge was therefore presented at the trial with accounts of what purportedly transpired on the fateful day rendered by two sets of disputants. The appellant on whom was the onus to establish his case made reference to the existence of other witnesses, Court workers and police men working in the Court, who were disinterested in the dispute and whose evidence would have tilted the weight. He however failed to call any of these witnesses. He also failed to call the aide of his counsel, listed by him and already deposed.
The arguments of Chief Obono-Obla was that the
17
invocation of the presumption of Section 167 (d) of the Evidence Act by the learned trial Judge in the circumstances presented, was inappropriate. The said Section provides as follows:
“167. The Court may presume the
existence of any fact which it thinks likely
to have happened, regard being had to the
common course of natural events, human
conduct and public and private business, in
their relationship to the facts of the
particular case, and in particular the Court
may presume that-
(d) Evidence which could be and is not
produced would, if produced, be
unfavourable to the person who withholds
it.”
As the learned counsel submitted, this Section relates to failure to call evidence and not failure to call a particular witness. Where however the requisite evidence is to emanate from a specific witness or witnesses it becomes mere play on words. See TUKURU vs SABI (2013) 54 NSCQR 280 at 303.
In
18
the circumstances of this case, the appellant needed to present credible evidence that the defamatory words he was complaining about were indeed uttered by the respondents to third parties in other to prove publication. He failed to call these persons despite having specifically pleaded the publication in paragraph 11 of his Statement of Claim as follows:
” 11 .The Claimant avers that the
slandering of his person published to the
crowd of Court workers and Police
Officers and passers by, to the effect that
the Claimant is a thief and had bribed
Honourable Justice Akon lkpeme to
obtain a favourable judgment in Suit No.
HUG/90/2001 by the Defendants has
impugned and damaged his credit,
character and reputation among right
thinking members of the public.”
(underlining mine).”
I do not agree with Chief Obono-Obla that this was a point raised suo motu which the learned trial Judge ought to have invited
19
counsel to address him before concluding as it arose from the appraisal of evidence placed before the Court.
In all I must resolve this issue against the appellant and in favour of the respondents.
The next issue to be resolved is whether the appellant is not entitled to the reliefs sought regard being had to the pleadings and evidence called by him.
On this issue Chief Obono-Obla submitted that the learned trial Judge failed to properly evaluate the evidence placed before him and totally ignored the claim of the appellant for assault. He urged this Court to reappraise
the evidence and find for the appellant.
On his part, Mr. Okoro submitted that based on the cases presented by the two sides, the learned trial Judge was correct in his judgment as the appellant failed to discharge the onus placed on him.
A perusal of the judgment of the learned trial Judge evidently shows that he failed to avert his mind to the claim for assault which is the other leg of the appellant’s claim. This however does not give much traction to the case of Chief Obono-Obla. This is because the two legs of appellant’s claim emanated from the same
20
transaction and were based on the same set of evidence found to lack credibility.
The defect in the credibility of the appellant’s case as earlier pointed out is well founded on the state of the pleadings settled by the parties. It is trite that not every error or omission by a trial Court would lead to a reversal of its judgment. see COOKEY VS FOMBO (2005) 22 NSCQR 411 and OLUBODE vs SALAMI (1985) 2 NWLR (PT 7) 282.
In the circumstances, this issue is also resolved against the appellant and in favour of the respondents.
The remaining issue is whether the award of costs of N25,000.00 (twenty five thousand Naira) against the appellant by the learned trial Judge is justifiable regard being had to the facts of the case.
On this final issue, Chief Obono-Obla submitted that costs are awarded at the discretion of the Court and would only be interfered with by the Appellate Court if found to be excessive or perverse. He urged the Court to reverse the cost here as it is excessive. He referred to MUTUAL AIDS SOCIETY LTD VS AKERELE (1965) 1 ALL NLR 336 and ALLIED BANK VS AKUBUEZ (1997) 6 NWLR (PT 509) 374.
Mr. Okoro submitted that
21
costs follow events and are awarded at the discretion of the Court to indemnify and compensate the successful party. He urged the Court to hold that the cost here was proper in the circumstances. He referred to NBCI VS ALFIR (MINING) NIG. LTD (1999) 14 NWLR (PT 638) 176 AT 197, ABACHA VS FAWEHINMI (2000) 6 NWLR (PT 660) 228 AT 332 and AJAGUNGBADE III VS LANIYI (1999) 13 NWLR (PT 633) 92 at 114-115.
The two counsel were on point in their submissions that costs are awarded at the discretion of the Court based on the circumstances of the peculiar case and that an Appellate Court will not ordinarily interfere with the exercise of discretion of a lower Court unless such exercise was perverse.
I find nothing excessive or perverse in the amount of cost awarded in this case.
It must be pointed out however that if costs are to realistically compensate the victorious parties in litigation there is an urgent need to move beyond the present rudimentary level. Making realistic orders of cost would also serve case management purposes to deter unnecessary and vexatious litigation.
This issue is also resolved against the appellant.
22
In totality therefore, I find no merit in this appeal and I accordingly dismiss it.
I award cost of N50,000.00 against the appellant.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.:
I have read before now the judgment just delivered by my learned brother J. O. K. OYEWOLE, JCA. I agree entirely with his reasoning and conclusion which I adopt as mine.
For the purpose of this concurring opinion, I adopt the facts of this appeal as set down in my learned brother’s lead judgment. I agree that there is no merit in this appeal and that it be dismissed. I hereby dismiss same and affirm the judgment of the trial Court.
I abide by the order as to costs made by J. O. K. OYEWOLE, JCA in the lead judgment.
PAUL OBI ELECHI J.C.A.:
I have had the privilege of reading in draft the lead Judgment just delivered by my Learned brother- Joseph Olubunmi Kayode Oyewole, JCA. The issues distilled for determination have been well considered and resolved meritoriously in the said lead Judgment. In that regard, I do not have anything to add. I am in agreement with my Learned brother that
23
the appeal lacks merit and at the same time abide by the order as to costs.
Appeal dismissed.
24
Appearances:
OBONO-OBLA Esq. with him, I. U. MGBE Esq.For Appellant(s)
E. O. OKORO Esq.For Respondent(s)
Appearances
OBONO-OBLA Esq. with him, I. U. MGBE Esq.For Appellant
AND
E. O. OKORO Esq.For Respondent
