ABUJA INQUIRER & ANOR v. KUKU
(2022)LCN/15967(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, June 14, 2022
CA/A/834/2017
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
1. THE ABUJA INQUIRER 2. GAZETTA COMMUNICATIONS LTD APPELANT(S)
And
HON. KINGSLEY KUKU RESPONDENT(S)
RATIO
THE POSITION OF THE LAW ON WHAT IS REQUIRED OF A PLAINTIFF IN PROVING THE INGREDIENTS OF TORT OF LIBEL
I have given due consideration to the foregoing contentions. Records of Court do show the Plaintiff did not appear in Court to testify in support of his case. The question is whether that failure invalidates or renders his suit incompetent. I do hold the view that in as much as an action in libel is an action in person am, the crucial issue is proof of the alleged attack on the reputation of the person complaining. What is required of the Plaintiff is proof vide evidence of the ingredients of tort of libel which are.
1. Whether or not the publication is in writing.
2. Whether or not it is false.
3. Whether or not it was published to a third person.
4. Whether or not the Defendant was the person who published the defamatory words.
Once the Plaintiff is able through evidence to establish there ingredients, the tort of libel lies and it matters not that he did not testify in person but through his witnesses. Indeed, a similar scenario as in the instant case played out in WESTERN PUBLISHING COMPANY LTD VS DR. KAYODE FAYEMI (2017) 13 NWLR (PT. 1582) P. 218 in which the Respondent the then Governor of Ekiti State sued the Appellants for libel but did not appear in Court to testify in support of his case but rather had some aides who testified in support of his case. Upon challenge of the judgment entered in his favour on the ground inter alia that he did not testify in support of his case, the Court of Appeal in rejecting the Appeal held thus;-
“There is no necessity for a party to appear in Court and give evidence so long as the claims are proved to the satisfaction of the Court. There is no rule of law or practice which requires a Plaintiff in a civil suit to be physically present in Court to testify if he can prove his case … Accordingly, a Plaintiff or Defendant can prove his case without presenting himself or testifying before the Court… PER IGE, J.C.A.
WHETHER OR NOT A PLAINTIFF OR DEFENDANT CAN PROVE HIS CASE WITHOUT PRESENTING HIMSELF OR TESTIFYING BEFORE A COURT
A plaintiff or defendant can prove or defend his case without presenting himself or testifying before a Court. In fact judgment in an appropriate case may be entered in a suit on mere pleadings only even with or without the presence of the parties provided they are duly represented or in case of default judgment it is proved that the parties in default of appearance were duly served. See Cross River State of Nigeria Newspapers Corporation v. Oni Ors (1995) 1 NWLR (Pt. 371) 270 at 293; Okerengwo v. Imo State Education Board (1989) 5 NWLR (Pt. 121) 295 at 302; lgyuse v. Ocholi (1997) 2 NMLR (Pt. 487) 352 at 364 para. D, and Alhaji Bamidele Lawal v. Union Bank Plc. Ors (1995) 2 NWLR (Pt. 378) 407 or (1995) 2 SCNJ 132 at 145 – 147. Even oral evidence is not the only means of proving facts in judicial proceedings. Facts can be proved as well through documentary evidence alone. It is therefore not in every suit that a plaintiff or defendant must testify or give oral evidence personally in order to prove or disprove a fact. A party therefore, needs not be physically present before he can prove his case. See British and French Bank Ltd. v. Solal El-Assad (1967) NWLR 40, Kehinde v. Ogunbumi (1968) NWLR 37, International Bank for West Africa Ltd. v. Oguma Associated Companies Nigeria Ltd. (1986) 2 NWLR (Pt. 20) 124. PER IGE,J.C.A.
PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal Capital Territory in Suit No. FCT/HC/CV/2634/2015 delivered by Hon. Justice Jude O. Okeke on 1st November, 2017 against the Appellants.
By paragraph 32 of the Respondent’s statement of claim, the Respondent as Plaintiff at the lower Court claimed against the Appellants as Defendants as follows:
“32 – 34. The Plaintiff claims against the Defendants as follows:
(a) A declaration that the publication in pages 1 and 3 of your July 27 – August 2, 2015 edition of the Abuja Inquirer, Vol. 11 No 7 ISSN. 1597 captioned “KINGSLEY KUKU FLEES NIGERIA” written of and concerning the plaintiff libelous and defamatory.
(b) An order of the Honourable Court compelling the Defendants to render an unreserved apology to the plaintiff, retract the Defamatory publication contained in pages 1 and 3 of your July 27 – August 2, 2015 edition of The Abuja Inquirer, Vol. 11 No 7 ISSN. 1597 captioned “KINGSLEY KUKU FLEES NIGERIA” written of and concerning the plaintiff and publish the apology/retraction in at least 3 National dailies including the Abuja Inquirer.
33. An order of perpetual injunction restraining the Defendants and privies howsoever called from further publishing any defamatory words or the same defamation against the plaintiff forthwith.
34. The sum of N500,000,000.00 (five hundred Million Naira) general damages against the Defendants. Cost of litigation.”
After exchange of pleadings and frontloaded documents, the matter proceeded to trial.
At the end of the said trial, the learned trial Judge in a considered Judgment delivered on 1st November, 2017 found against the Appellants as follows:-
“The Defendants did not place any evidence before the Court showing they responded to this letter (Exhibit F) or wrote a retraction or published an apology as demanded of them.
In this proceeding, they contended that the Plaintiff’s Solicitors explanation to EFCC was a ruse. The Defendants Dw2 (the EFCC operative) however under cross-examination acknowledged that the Plaintiff’s Solicitors wrote the letter referred to above explaining that he was on treatment and by that the EFCC was aware of his whereabout.
Apart from stating that the Plaintiff’s Solicitors’ explanation to EFCC vide their letter attached to Exhibit F was a ruse, the Defendants did not place any evidence before the Court controverting or contradicting the Plaintiff’s contention that they through their Solicitors served Exhibit F on them which explained the Plaintiff’s whereabout and demanded for a retraction of the story in Exhibit A and an apology in Law, documentary evidence is regarded as best evidence because of its permanent nature. It is preferred to oral evidence. In the absence of any written evidence by the Defendants controverting or contradicting the Plaintiff’s Exhibit F, the Court accepts it as proof of the Plaintiff’s explanation to the Defendants of the Plaintiff’s whereabout and their demand for a retraction of the publication and an apology. The Defendants as aforesaid, did not respond to Exhibit F. They also did not comply with the demands therein. This being the case, the Court shall reckon with Exhibit F, the Defendants’ refusal to comply with the demands therein despite the Plaintiff’s Solicitors attached letter of explanation of the Plaintiff’s whereabout to EFCC and their continued stubborn and unrepentant posturing in these proceedings in the assessment of damages which the plaintiff is entitled to.
The Plaintiff has prayed the Court to award damages in the sum of N500,000,000.00 in his Statement of Claim. The Plaintiff did aver in paragraph 1 of his Statement of Claim that he is a former member of the Ondo State House of Assembly, former Secretary Federal Government Peace and Conflict Resolution Committee in the Niger Delta region and the immediate past Special Adviser to the President on Niger Delta and Chairman Presidential Amnesty Committee. The Defendants did not deny these positions the Plaintiff averred he held in points of substance. They are therefore admitted by them. Besides, the Pw1 and Pw2 led uncontradicted evidence on that.
Putting the opportunity availed the Defendants to retract the offensive publication but they failed, the undenied status of the Plaintiff given the position of responsibility he has occupied in the governance of Nigeria, the unrepentant posturing of the Defendants in these proceedings, the gravity of the offensive publication, the damage to the reputation and integrity of the Plaintiff as a result of the offensive publication and the fact that the Defendants have been directed to retract the publication and publish an apology into consideration, the Defendants are ordered to pay to the Plaintiff damages assessed and fixed at, not the N500,000,000.00 claimed by the Plaintiff but only for the libel aforesaid. The Plaintiff having emerged successful shall also be paid an all inclusive cost of N50,000.00 by the Defendants.”
The Appellants were dissatisfied with the said judgment and have by the Notice of Appeal dated and filed on 14th November, 2017 appealed to this Court on four grounds which are as follows:-
“2. PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF:
The whole decision.
3. GROUNDS OF APPEAL
GROUND 1
The learned trial Judge erred in law when he relied and applied the decision in the case of WPC Ltd Vs. Fayemi (2017) 13 NWLR (PT 1582) 218 without distinguishing same from the facts of the present case and this occasioned a miscarriage of Justice.
PARTICULARS OF ERROR
i) Dr. Kayode Fayemi, one of the parties in the case was a sitting governor covered by constitutional immunity. When he instituted the suit as a Plaintiff.
ii) That Section 308 of the Constitution of the Federal Republic of Nigeria does not apply to the Respondent as to shield him from coming to Court to prove his case.
iii) The provision of immunity for a sitting president or governor is a constitutional shield not available to ordinary citizens.
vi) The instant case is not in pari material and not on all fours with WPC LTD VS. Fayemi (Supra) in that the Respondent herein was never a sitting governor when he instituted these libel proceedings, yet the trial Court held the suit competent thus doing violence to the decision in WPC LTD Vs. Fayemi
GROUND 2
The learned trial Judge erred in law when he held that the Appellant failed to prove the defences of fair comment and Justification.
PARTICULARS OF ERRORS
i. The finding by the trial Court that strict proof of these defences is required from the appellant amounted to shifting the burden of proof from the Respondent to the Appellant, when the Respondent was yet to prove his case.
ii. The finding by the trial Court that the Appellant’s subpoenaed witness did not specifically said the EFCC has declared the Respondent wanted was against the weight of evidence.
iii. The findings by the Court that the Appellant’s publication was falsehood cannot be supported by the evidence on record.
iv. The finding by the Court that the Respondent is not a fugitive, running away in order to avoid the summons by the EFCC is perverse.
v. The findings by the Court that the Respondent has not been declared wanted is against the preponderance of evidence.
GROUND 3
The learned trial Judge erred in law when he held that the Respondent’s failure to sign the pre-action counseling certificate was not fatal as long as it was signed by his layer.
PARTICULARS OF ERRORS
i. The trial Court failed to enforce the provision of the rules of Court mandating the signing of the pre-action counseling certificate by both the litigant and his lawyer.
ii. The finding by the trial Court that non-signing of the pre-action counseling certificate by the litigant is a mere procedural irregularity is perverse.
iii. The finding by the trial Court that the signing of the pre action counseling certificate by a privy on behalf of the respondent was not fatal to his case is an error.
GROUND 4
The learned trial erred in law when he held that:
“By the forgoing, it cannot be said the defendants placed any evidence before the Court in support of their statement that the plaintiff fled the country before President Muhammadu Buhari look over the reins of governance on 29th May, 2015”.
PARTICULARS OF ERRORS
i. In the defence of fair comment and Justification, it is not every minutest details that must necessarily be proved correct and precise.
ii. It is not in dispute that Respondent fled the country and has ignored the economic and financial crimes commission summons to appear before it.
iii. The discrepancies as to date when the respondent fled the country to avoid honoring the summons of the EFCC to appear before it to answer allegations of abuse of office, fraud and money laundering is not fatal to the appellants defence.
iv. The facts which the publications is made are existing and true:
a) The Appellant is on the run
b) The Appellant is aware that he is wanted for investigation in respect of his stewardship of public office.
c) Two of the Respondent’s closest aides are currently undergoing criminal trial on matter related to the Economic and Financial Crimes Commissions investigation of the Respondent.
d) The Economic and Financial Crimes Commission has written to the Honourable Attorney General of the Federation to effect the Appellant extradition from wherever he is.
e) That the international police (Interpol) has also been communicated to effect the Appellant arrest.
4 RELIEFS SOUGHT FROM THE COURT OF APPEAL
i. An order declaring that the judgment of the trial Court is perverse and contrary to the weight of evidence.
ii. An order allowing the appeal.
iii. An order setting aside the judgment of the FCT High Court delivered on 1st November, 2017. In suit No CV/2634/2015 with costs.
iv. Any further order or orders as the Honourable may deem fit and Just to make in the circumstances.”
The Appellant Brief of Argument was dated and filed the 15th February, 2018 and deemed properly filed and served on 19th January, 2022. The Respondent’s brief of Argument dated 26th November, 2019 was filed on 28th November, 2019 and was also deemed properly filed on 19th January, 2022. The Appellant’s Reply Brief on 8th January 2021. It was deemed properly filed on 19th January, 2022.
The appeal was heard on 22nd March 2022 when learned counsel to the parties adopted their Briefs of Argument.
The learned Counsel to the Appellant Bassey Effiong distilled two issues for determination of the appeal as follows:
ISSUES FOR DETERMINATION
(i) Whether the Court of Appeal decision in WPC LTD V. Fayemi (2017) 13 NWLR (Pt. 1582) 218 relied upon by the trial Court to find in favour of the Respondent is on all four with the instant case.
(ii) Whether failure to substantiate every particular detail of the defences of fair comment and Justification led by the Appellants in proof of the said defences is fatal to their case.
The learned Counsel to the Respondent also distilled two issues for the determination of the appeal viz:
(i) Whether or not the trial Court correctly relied on and applied the case of W.P.C. LTD vs. FAYEMI (2017) 13 NWLR PT 1582 Pg 218 to rightly arrive at the decision that Respondent can prove his case of libel against the appellants at the lower Court through evidence given by other witnesses without the need to testify in Court personally.
(ii) Whether or not the trial Court rightly held that the defence of justification and fair comment is unavailing to the Appellants in the circumstance of this case to arrive at its Judgment.
I will utilize the two issues raised for determination of the appeal by the Appellants’ learned Counsel and will take the two issues together.
ISSUES FOR DETERMINATION
(i) Whether the Court of Appeal decision in WPC LTD V. Fayemi (2017) 13 NWLR (Pt 1582) 218 relied upon by the trial Court to find in favour of the Respondent is on all four with the instant case.
(ii) Whether failure to substantiate every particular detail of the defences of fair comment and Justification led by the Appellants in proof of the said defences is fatal to their case.
Arguing of issue 1, the learned Counsel to the Appellants BASSEY EFFIONG, ESQ., urged at this Court to hold that its decision in the case of WPC LTD V. FAYEMI (2017) 13 NWLR (1582) 318 is not applicable in the instant case as according to learned Counsel both cases are different and distinguishable. He stated that in the case of WPC LTD V. FAYEMI supra, the defendant’s failed to lead evidence in support of their defences of justification and fair comment and subsequently abandoned same. That in the case of FAYEMI SUPRA the governor neither swore to a witness statements on oath nor testified in Court but that two of the Governor’s Aids swore by witness statements testified and tendered all relevant exhibits including the libelous publications.
That the Appellant in their defence put up plea of justification and fair comment on a matter of public interest but failed to lead evidence in proof thereof thereby abandoning the said defences and invariably admitted the case of Governor Fayemi in the said case relying on page 218 at 265 F of Fayemi’s case.
He argued that the position of the Supreme Court is that where defence of fair comment is pleaded in a libel suit and evidence is called by the defendant then it is incumbent on the claimant to prove that he has suffered any resulting damages or injury relying on the case of CROSS RIVER STATE NEWSPAPER CORP. V. ONI & ORS (1995) 1 NWLR (PT. 371) 270 AT 272.
That in the instant case, the Appellant at the trial Court called credible witnesses in proof of the legal Justification for the publication.
He relied on the evidence of DW2 who he referred to as key witness (MADAKI YAKUBU) who testified on pages 159 – 160 of the records that DW2 gave evidence that the plaintiff is a wanted man by the commission. He laid out what he stated was DW2’s evidence and that DW2’s evidence is that of an expert on subpoena. That through DW2 the Appellant has discharged the onus placed upon them. That DW2 gave evidence to the effect that the Respondent failed to honour EFCC’s invitation that the Appellants have established their defence against Respondent’s case. He relied on the cases of EJABULOR & 4 ORS V. OSHA (1990) 5 NWLR (PT 148) 1 and WPC V. FAYEMI (2017) 13 NWLR (PT. 1582) 218 among others to submit that Onus has shifted on the claimant to show that he suffered damages from the plea of justification. He urged this Court to resolve issue one in Appellants favour and hold that the instant case is distinguishable from the facts of WPC v. FAYEMI (SUPRA).
On issue 2 as to whether failure to substantiate every particular detail of the defences of fair comment and justification pleaded, the Learned counsel to the Appellant drew attention of this Court to the findings of the lower Court on page 182 of the record to submit that the conclusion of the learned trial Judge was perverse due to inconsistencies in findings of the trial Court. He also dwelt extensively on evidence of DW2. That there was improper evaluation of evidence of DW2 leading lower Court to come to wrong conclusion. That the case of SUKIBO V. CNLR (1983) 18 CNLR P. 29 relied on by lower Court on page 77 of the record ought instead to inure for the Appellants’ benefit.
On the meaning of the word extradition which DW2 said the EFCC sought against the Respondent, Blacks Law Dictionary was relied upon. That extradition process is absolutely reserved for fugitives with questions to answer to lawful state authorities.
On defence of justification, he relied on the cases of:
1. ILOHBACHIE VS ILOABACHIE (2005) 13 NWLR (PT 945) 695.
2. OKOLO V. MIDWEST NEWSPAPERS CORPORATION & ORS (1977) 1 SC 33
3. ODUWOLE V. WEST (2010) 10 NWLR (PART 1203) 598.
4. JEGEDE V. DAILY TIMES SUPRA.
That the finding of the lower Court to the effect that Respondent was still in Nigeria as 29th May, 2015 up till 19th June, 2017 contrary to the report of the Appellants is not sufficient enough to vitiate the point that thereabout that period that is before 29th August, 2015, the Respondent left the country and is yet to return till date. That the publication complained of represented the honest opinion of the Appellants and was published without malice. He urged this Court to resolve issue 2 in Appellants’ favour.
In his response to the above submissions under issue 1, the learned counsel to the Respondent TUNYAN, ESQ submitted that the learned trial Judge correctly applied the established position of the superior Courts and the law to hold that the Plaintiff’s claim can succeed without his personally giving evidence in support of his case. Once he has proved the claim before the Court he relied on page 174 of the record and submitted that lower Court cannot be faulted.
On the applicability of the case of WPC V. FAYEMI SUPRA, learned counsel to the Respondent submitted that the case is applicable to this case as the facts in the case and this case are on all fours. He relied on page 265 of the case of WPC V. FAYEMI SUPRA. He stated that once a party has participated in a proceeding, cross-examined the opponent witnesses and or tender documents he has led evidence in the case even though he did not call any witness to testify. He relied on the cases of IYAMU VS INEC (2017) 75C 90 and OMISORE V. AREGBESOLA (2015) 7SCM 187A. He stated that decision of apex Court support relied upon by Appellants in support of the Respondent in this appeal. He relied on the case of SHITTU V. FASHAWE (2005) ALL FWLR 287 P 1017 (2005) 14 NWLR (PART 946) 471 to the effect that the Respondent needed not to testify personally.
Still on the applicability of the case of FAYEMI (SUPRA) Respondent learned counsel relied on page 271 C-F of the Report.
Learned Counsel stated that it is not the case of the Appellants that the publication Exhibit A, is not false and not libelous as found by the lower Court. That lower Court was bound by FAYEMI’s case under doctrine of stare decisis when he relied and applied FAYEMI’s case on page 175 of the record of proceedings. He concluded under issue 1 that the three witnesses called by the plaintiff proved his case against the Appellants relying on page 187 of the record. He urged the Court to hold that the case of WPC V. FAYEMI is applicable and that issue ought to be resolved against the Appellants.
On issue 2 concerning the finding of trial Court that defence of justification and fair comment were unavailing to the Appellants, the Respondent learned Counsel submitted that the lower Court was right that a person who relies on such defences must get his basic facts right to justify the said publication in order to sustain the defence. He submitted that for the plea relied upon by Appellants to succeed all the defamatory words must be established as true. He relied on the cases of:-
1. WPC V. FAYEMI (SUPRA)
2. ALH. A.R. SULE & ORS V. J. ORISAJIMI (2019) LPELR – SC
3. GIWA V. JEJELOLA (2014) LPRLR (SC)
4. EKONG V. OTOP (2014) 56 SC PT 1 PAGE 33 AT 57
That in this case the findings of the learned trial Judge which he said are correct, are to the effect that defence of legal justification and fair comment were not proved and found that exhibit A was false libelous and defamatory of Respondent and that the facts contained in Exhibit C relied upon by Appellants cannot justify the defamatory and libelous publication.
He submitted that the lower Court properly evaluated the evidence in this case on pages 18 – 185 records and in other part of the Judgment and that there is presumption of correctness in favour of trial Courts Judgment. He relied on the case of DAVID OYEDELE V. STATE (2019) SC (sic) and page 25 of the record containing the alleged publication. He also drew attention to cross-examination of DW2 whom the Respondent’s learned Counsel admitted that there is nothing in Exhibit C upon which Appellant based their libelous publication. He relied on pages 159 – 160 of the record. He also relied on page 152 of the record concerning similar evidence of DW2 of the Exhibit “C” that the various contradictions in the evidence of DW1 and DW2 as contained in the record therein led to the findings of trial Court against the Appellants. He urged the Court to resolve the two issues in favour of the Respondent against the Appellants and to dismiss the appeal with substantial costs.
It must be stated that I have perused the Appellants’ Reply Brief and all it contained are a re-argument of submissions in the Appellants’ Brief of Arguments. The said Appellants Reply Brief is hereby discountenanced.
RESOLUTION OF THE TWO ISSUES
Now the lower Court in evaluating the pieces of evidence given by the parties found on pages 11 – 13 of its judgment (pages 173 – 175 of the record as follows:-
“The parties were given time frames within which to file and exchange Final Written Addresses which they did. They adopted the Addresses in Court on 18th September 2017. Judgment was then reserved.
I have carefully read and digested the said Final Written Addresses of Counsel for the parties. The fundamental issue that calls for determination in this judgment is whether or not by the state of pleadings, evidence and law the Plaintiff has made out a case to Justify a grant of the reliefs sought in the Statement of Claim.
An overview of the Defendants’ Final Written Address, reply on points of law and their Statement of Defence shows they raised issues of law with regard to the competence of the Plaintiff’s suit. The issue is that the Plaintiff’s suit is incompetent by reason of the fact that the Plaintiff did not testify in person in proof of his case.
That he relies on the evidence of proxies i.e. his witnesses. That in an action founded on libel, the Plaintiff is to prove by his own evidence that the words published were libellous of him and caused him damage. He is to succeed on the strength of his evidence being a necessary party to the case. Reliance was placed on AJOKE V BELLO (1992) NWLR (PT. 318) P. 80; NWOGA V REG. TRUSTEES RECREATION CLUB 12004) FWLR (PT. 190) P. 1360; YAHAYA V MUNCHIKA (2000) 7 NWLR (PT. 664) P. 300. It was also contended as an adjunct to the issue above that the Plaintiff did not sign his Pre-action Counseling Certificate. The learned Plaintiff’s Counsel in his Address contended in response placing reliance on DANGOTE GEN- TEXTILES LTD V HASSCON ASSOCIATES (2013) 5 SC that parties are free to choose whom they will call as their witnesses in proof of their case. He urged the Court that it is not the business of the Defendants whose publication the Plaintiff is complaining about to dictate to him who to call in proof of his case.
I have given due consideration to the foregoing contentions. Records of Court do show the Plaintiff did not appear in Court to testify in support of his case. The question is whether that failure invalidates or renders his suit incompetent. I do hold the view that in as much as an action in libel is an action in personam, the crucial issue is proof of the alleged attack on the reputation of the person complaining. What is required of the Plaintiff is proof vide evidence of the ingredients of tort of libel which are.
1. Whether or not the publication is in writing.
2. Whether or not it is false.
3. Whether or not it was published to a third person.
4. Whether or not the Defendant was the person who published the defamatory words.
Once the Plaintiff is able through evidence to establish there ingredients, the tort of libel lies and it matters not that he did not testify in person but through his witnesses. Indeed, a similar scenario as in the instant case played out in WESTERN PUBLISHING COMPANY LTD VS DR. KAYODE FAYEMI (2017) 13 NWLR (PT. 1582) P. 218 in which the Respondent the then Governor of Ekiti State sued the Appellants for libel but did not appear in Court to testify in support of his case but rather had some aides who testified in support of his case. Upon challenge of the judgment entered in his favour on the ground inter alia that he did not testify in support of his case, the Court of Appeal in rejecting the Appeal held thus;-
“There is no necessity for a party to appear in Court and give evidence so long as the claims are proved to the satisfaction of the Court. There is no rule of law or practice which requires a Plaintiff in a civil suit to be physically present in Court to testify if he can prove his case … Accordingly, a Plaintiff or Defendant can prove his case without presenting himself or testifying before the Court…”
In my view, this decision settles the issues of the need of the Plaintiff to appear in Court and testify in support of his case. The fundamental question is whether or not his case has been proved through his witnesses. Defendants’ contention in this regard is accordingly dismissed.”
From the above quoted portion of the judgment, it was the Appellants who claimed and made submissions that the Respondent’s case is incompetent or invalid and not proved on account of the Respondent’s failure to personally testify in his action for libel. The learned trial Judge took pain to carefully examine the evidence and stated what the Respondent as a Claimant or Plaintiff was expected to establish to succeed in his tort of libel against the Appellants and found among other things that it would not matter whether or not the Respondent personally testified once he was able through the witnesses he called established his case against the Appellant. The lower Court stated the principles of the law of evidence correctly and cannot be faulted. There is nothing in the Evidence Act making it mandatory for the Respondent to personally give evidence. He could call other persons to give evidence on his behalf, which is what the Respondent had done in this case. There is no law making the pieces of evidence given by the witnesses called by the Respondent inadmissible. The lower Court followed the established position of the law in relying on the case of WPC LTD VS FAYEMI (SUPRA).
I call in aid the following cases:-
1. N.A.C.B. LTD & ANOR VS G.O ADEGBO (2004) 14 NWLR (PART 894) 551 AT 573 A – H TO 574 A – F per SANUSI, JCA who said:-
“As rightly pointed out by the learned counsel for the appellant, in defamation (libel) case, the plaintiff must prove that he was the one libeled by the publication. It is however sufficient if the person who it is claimed to have been defamed is easily ascertainable. The important thing is that there should not be any doubt on the identity of the person who claimed to have been defamed. If there is such doubt, damages for libel is not awardable. See Williams v. West African Pilot (1961) 1 All NLR 866, (1961) WNLR 330. see also The Daily Times of Nigeria Ltd. v. Emezuom (supra). Now the issue is, can allegation of defamation be proved without the person allegedly defamed testifying? Or to put it in another way, must Mr. Samuel A. Adetoyi (the person allegedly defamed) testify before a case of defamation (libel) against him can be established, bearing in mind the fact that the plaintiff sued in representative capacity on his behalf and as his agent? It is crystal clear that the plaintiff sued in representative capacity. As he stated, he sued on behalf of Mr. Samuel A. Adetoyi, who he said is his cousin and had authorized him to sue on his behalf. He therefore sued with his consent and on his behalf. In the statement of claim clearly stated also that the said Samuel was the one allegedly defamed (libeled). There is no iota of doubt also as to the identity of the person defamed i.e. Mr. Samuel A. Adetoyi. The suit before the trial Court is a civil one. There is no rule of law or practice as far as I know, which insists that a plaintiff in a civil suit must be physically present in Court to testify in as much he can prove his case either through oral or documentary evidence. In the same token, there is also no law that a defendant in a civil suit must appear personally to defend a suit instituted against him. A plaintiff or defendant can prove or defend his case without presenting himself or testifying before a Court. In fact judgment in an appropriate case may be entered in a suit on mere pleadings only even with or without the presence of the parties provided they are duly represented or in case of default judgment it is proved that the parties in default of appearance were duly served. See Cross River State of Nigeria Newspapers Corporation v. Oni Ors (1995) 1 NWLR (Pt. 371) 270 at 293; Okerengwo v. Imo State Education Board (1989) 5 NWLR (Pt. 121) 295 at 302; lgyuse v. Ocholi (1997) 2 NMLR (Pt. 487) 352 at 364 para. D, and Alhaji Bamidele Lawal v. Union Bank Plc. Ors (1995) 2 NWLR (Pt. 378) 407 or (1995) 2 SCNJ 132 at 145 – 147. Even oral evidence is not the only means of proving facts in judicial proceedings. Facts can be proved as well through documentary evidence alone. It is therefore not in every suit that a plaintiff or defendant must testify or give oral evidence personally in order to prove or disprove a fact. A party therefore, needs not be physically present before he can prove his case. See British and French Bank Ltd. v. Solal El-Assad (1967) NWLR 40, Kehinde v. Ogunbumi (1968) NWLR 37, International Bank for West Africa Ltd. v. Oguma Associated Companies Nigeria Ltd. (1986) 2 NWLR (Pt. 20) 124. It is my view that the fact that the person allegedly defamed, that is to say Mr. Samuel A. Adetoyi did not testify in the suit instituted with his consent and on his behalf by the plaintiff does not mean the allegation of defamation cannot be proved. Once there is credible evidence adduced by the said plaintiff and the trial Court is satisfied that the allegation of libel is established in the matter, it can find in his favour and award damages it deems necessary. The point canvassed by the appellants that the plaintiff was not the owner of the property in question is not also material once it could be proved that the publication is libelous and could be understood to have been referred to the said Mr. Samuel Adetoyi and such was proved to the satisfaction of the trial Court. It will therefore not be correct to say that the trial Court found or awarded damages in favour of a third party or stranger to the suit since as I posited above, the plaintiff was only representing his principal and cousin on whose behalf and with whose consent he sued the defendants/appellants. The second issue is also resolved in favour of the respondent against the appellants.”
2. T. M. ORUGBO & ANOR V BULARA UNA & ORS (2002) 16 NWLR (PART 792) 175 AT 201 F- H TO 202 A per NIKI TOBI JSC (of blessed memory) who said:-
“There is no law known to me that all parties to an action must give evidence at the trial. Parties are free to pick witnesses they think can give cogent evidence in proof of their case. If the law had required all parties to give evidence, the Court will be exposed, in some cases, to a village or community of witnesses and that will protract the litigation. It appears from the list of the witnesses that the parties used old age as the criterion and not necessarily the parties in the case. I say this because all the witnesses who gave evidence for the appellants fell within the age range or age bracket of 60 to 84 years.
The only party to the action who gave evidence for the appellants was the 1st appellant. The only party to the action who gave evidence for the respondents was the 3rd respondent. All the other witnesses who gave evidence on both sides were not parties to the case.
Above all, there is nothing on the record to show that the trial Koko District Customary Court refused an application by the respondents that all the other ten parties wanted to give evidence. Where then lies the breach of fair hearing? I do not see it. I therefore find that the Court below was in error in holding that there was a breach of the fair hearing principle.”
The case of NACB V ADEAGBO (SUPRA) was a libel matter. I am certain in my mind that the reliance placed on the case of WPC LTD V FAYEMI (SUPRA) by the learned trial Judge and his findings in favour of the Respondent are quite unassailable. The trial Court acted within the confines of the law of evidence.
Issue 1 is hereby resolved against the Appellants.
On issue 2 as to whether the failure to substantiate every particular detail of the defences of fair comment and justification led by the Appellants in proof of the said defences is fatal to the Appellant’s case or defence I like to recall the substratum of the submissions of Appellants’ learned Counsel in paragraphs 41.2.21, 4.2.22, 4..2.23 and 4.2.24 which are follows:-
“4.2.21 With this state of the law in mind, the finding by the trial Court that the Respondent as at 29th May, 2015 was still in Nigeria until at least the 19th of June, 2017 when he was last reported to have been seen contrary to the Appellants story that Respondent allegedly traveled out of the country Just before May 29th is not sufficient enough to vitiate the point that there about that period, that is before on or after the 29th of May, 2015, the Respondent left the country and is yet to return till date.
4.2.22 The basic facts of the story is that the Respondent left the country at about that period and has failed to return in order to honour the summons of the Economic and Financial Crime Commission which has resulted in extradition process been carried against him. The publication complained about, represented the honest opinion of the Appellants and was published without malice.
4.2.23 It is trite that a person who causes facts which are in any way libelous of another to be published must if he wants to be availed of the defence of fair comment show that the facts published are sufficiently true and this can be established by whatever credible evidence that is adduced. See AJIKEYE V. FALAYODE ANOR (1990) 4 NWLR (PT 545) at 196.
4.2.24 It is our humble submission that the Appellants by credible evidence established the defences of Justification and particularly that of fair comment to which the Respondent was rightfully expected to respond to but failed to discharge the burden of proof which had shifted to him by virtue of the Appellants witness evidence.”
The learned trial Judge among other things found that the defences put forward must be specifically proved to be true. The trial Judge held on page 20 of his judgment which page 183 of the record of appeal as follows:-
“It needs be pointed out that although the DW2 when led in chief by the learned Defendants’ Counsel stated that the EFCC has summoned the Plaintiff to appear before it and that the Commission has written to the Attorney General of the Federation for his extradition and the Commission still wants him, he contradicted himself under cross-examination when he testified that the Commission has not declared him wanted and that apart from Exhibit C, the Commission has not issued any summons on him. Additionally, when asked to produce the letter the Commission wrote to the Attorney General, he demurred and did not produce same.
The totality of the DW1 and DW2’s testimonies as shown above belies the caption of the Defendants’ write up in Exhibit A as well as its contents that the EFCC has issued a summons and declared the Plaintiff wanted. The testimonies, with respect do not prove preponderantly that the EFCC issued a summons on the Plaintiff and declared him wanted in connection with fraud, theft and embezzlement. The evidence are largely inconsistent with the sting of the story that the Plaintiff was declared wanted for fraud, theft and embezzlement by the EFCC. For the foregoing reason, the Court holds that the Defendants have failed to discharge the evidential burden on them to prove the truthfulness of the caption and this portion of the statements in Exhibit A.
The Defendants having failed to prove the truthfulness of the caption and statements in Exhibit A with respect to the Plaintiff having been summoned and declared wanted as required by law, it does not avail them to plead or rely on defence of fair comment made on a matter of public interest in the discharge of their duty to the public. It is trite that such a defence can only avail the Defendants when they have succeeded in proving vide evidence the truthfulness of the offensive statements. That is not the case here and so the defence of fair comment cannot avail the Defendants with respect to the statements the EFCC did summon and declare the Plaintiff wanted for fraud, theft and embezzlement.
For the reason alone that the Defendants failed to prove their defence of Justification and fair comment with respect to these material parts of the libel (i.e. the statements that the Plaintiff was summoned and declared wanted by the EFCC), the Court could validly wind down and find in favour of the Plaintiff against the Defendants. This is because each false statement constitutes a cause of action in libel.”
The above findings are also supported by oral and documentary evidence on the record of appeal and are in tandem with the state of the law on defences of fair comment and, justification in libel action and law. See AFRICAN NEWSPAPERS OF NIGERIA LIMITED V. F. C. O. COKER (1973) 1 ALL NLR (PART 1) 564 AT 577 – 579 PER UDOMA, JSC who said:-
“We proceed to consider the questions set out above, but before doing so, it is significant to note that one of the most important points made in the editorial entitled “Hypocrites, Stones and Glass Houses” was the fact that the newspapers which had criticised the appointment of the plaintiff deliberately ignored the White Paper, Exhibit F, issued by the Federal Military Government, as regards the character and assets of the plaintiff. This point is significant because it is the crux of the case against the defendants in this appeal as indicating a deliberate act of “supresso veri. suggestio falsi” and therefore must have some effect on any defence of fair comment. It is trite law that to sustain the defence of fair comment the whole of the facts must be correctly and fairly stated, or the premise upon which the comment is based must be the whole truth. Anything short of these would destroy the defence of fair comment. In the case on appeal, what is worse is that the learned trial Judge found, and we agree with him, that the publications, Exhibits A and B, complained of were not comments on the report of the Saville Tribunal of Inquiry at all.
In this connection, the learned trial judge, in the course of his judgment, after referring to Sections 8 and 9 of the Defamation Act, 1961, which stipulate the circumstances in which defence of fair comment and privilege respectively would avail a defendant said: “I must at this stage say that the defendant’s counsel had concentrated on the Saville Tribunal of inquiry report and made no reference whatsoever to comments of the Federal Military Government as contained in exhibit F. In order to claim fair comment on a privileged document both the report of the Saville Tribunal of inquiry must be considered along with the comments of the Federal Military Government on that report.”
And further:
“Suffice it to say that at this stage, Exhibits A and B, as was contended by the plaintiff’s counsel, are not comments in any shape or form on the report of the Saville Tribunal of Inquiry.”
The learned trial Judge then proceeded to find as a fact that the first publication, exhibit A, captioned: “The Devil’s Advocate” was a reply to the editorial of the Morning Post of 4th February, 1969 which was itself titled “Hypocrites, Stones and Glass Houses”; and that the second publication, Exhibit B, captioned: “War Against Corruption: Government Papers Must Speak Up” was not comment even on the report of the Saville Tribunal of Inquiry. With these findings, we agree.
We think that the defendants did their cause more harm by embarking on fair comment and justification as their defence. The only evidence of justification which the relied upon was merely to repeat the eight different acts which were described in the report of the Saville Tribunal of inquiry Exhibit E as irregularities and these the labelled “acts of corruption.”‘ (Underlined line)
I am of the firm view that the Appellants as held by the lower Court did not establish the libel or publication they made against the Respondent and as such the defences of fair comment and justification postulated in their pleading cannot avail the Appellants. The judgment of the lower Court cannot be faulted.
Issue 2 is also resolved against the Appellants.
In the result, the Appellants’ appeal is lacking in merit and the Appellants’ appeal is hereby dismissed in its entirety.
The judgment of the FCT High Court delivered on 1st November, 2017 by HON. JUSTICE JUDE O. OKEKE IS HEREBY AFFIRMED.
The Appellants shall pay costs of N50,000.00 (Fifty Thousand Naira) to the Respondent.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have read with deep satisfaction the draft of the leading judgment just delivered by my Lord, Peter Olabisi lge JCA, and I completely agree that the appeal lacks merit and is thus, liable to be dismissed.
My Lords, in an action for damages for defamation, be it libel or slander, the law requires the claimant to plead in his pleadings and prove by credible and cogent evidence the essential elements of the tort of defamation, namely: That the words complained of are defamatory; That the words complained of referred to the Claimant; That the words complained of were published by the Defendant, and the resultant damages in case of slander except where it is actionable per se without proof of damages. See Iseramenya V. Ofodion (2020) LPELR-52236(CA) per Sir Biobele Abraham Georgewill JCA. See also Nsirim V. Nsirim (1990) 3 NWLR (Pt. 1380 285; Din V. African Newspapers of Nig. Ltd (1990) 3 NWLR (Pt. 139) 392; Onu V. Agbese (1985) 1 NWLR (Pt. 4) 704; Onyejike V. Anyasor (1992) 1 NWLR (Pt. 218) 437; Iloabuchi V. Phillips (2000) 14 NWLR (Pt. 6860 43.
In law therefore, it is these ingredients that constitute a prima facie case which a Claimant must make out for the Defendant to even be required to lead evidence in his defense. In other words, once or where a Claimant by his pleadings and evidence led at the trial fails to establish any of the above ingredients, then no prima facie case of defamation could be said to have been made out against a Defendant by a Claimant. In such circumstances, the Defendant need not prove anything in his defense. See The Right to a Good Name: Law of Defamation Simplified by Sir Hon Justice Biobele Abraham Georgewill, 2011 by Convince Concepts PH at pp. 63 – 64.
Thus, the first duty on the Appellant as Claimant in an action for damages for libel is to prove that the words were defamatory, and in law defamatory words may be expressly defamatory on its face or it may be ambiguous or innocuous. So, in order to succeed a Claimant must prove that the words complained of were defamatory. The real test is therefore, whether under the circumstances in which the words were alleged to have been published reasonable persons to whom the publication was made would be likely to understand it in a defamatory sense. It follows therefore if the words complained of are not defamatory then there is of course no defamation on which the claim of a Claimant could succeed. See Clerk & Lindsell on Torts, 11th Edition at p. 711. See also Access Bank Plc V. MFCSS (2005) 3 NWLR (Pt. 913) 460; Koko V. Midwest Newspaper (1977) 11 NSCC 11; Awoniyi V. AMORC (1990) 6 NWLR (Pt. 154) 42; Katto V. CBN (1999) 6 NWLR (Pt. 607) 390.
However, in the application of the reasonable person test, two questions are involved, namely; whether the words complained of are in themselves capable of a defamatory meaning, this is a question of law, and whether the words complained were in fact defamatory, this is a question of fact. So, what words could be defamatory in law? A defamatory word is that which tends to bring down the reputation of another or expose him to odium and ridicule in the estimation of reasonable members of the society. It does not necessarily mean that such a word must impute a moral fault against the Claimant. see Iseramenya V. Ofodion (2020) LPELR-52236(CA) per Sir Biobele Abraham Georgewill JCA. See also Akufere V. Sketch Publishing Co. Ltd. (1971) 1 UILR 13 at p. 15, UBN Ltd. V. Oredien (1992) 6 NWLR (Pt. 247) 355, Mr. Olusola B. George – Olumoroti V. Mr. Ide O. Owodiong – Idemeko (2017) LPELR -51546 (CA) per Sir Biobele Abraham Georgewill JCA.
Now, it is a very dangerous thing for a Defendant, such as the Appellants, in an action for libel to rely on the defence of justification and fair to justify the defamatory allegation made against the Claimant, such as the Respondent. This is so because not only does the defence of justification relied upon by the Appellants admits the allegation of the Respondent that they made the defamatory publication against and in respect of his person but also failure to establish the defence of justification is a sure aggravating factor to be considered by the Court in the award of damages. The Appellants who had amongst other defences such as fair comment, relied on the defence of justification and having failed to justify by establishing the truth of the imputation made by their publication, their appeal should not only fail, but such failure ought to be taken as an aggravating factor in the consideration and assessment of damages for libel against the Appellant.
In the above circumstances therefore, in which the Appellants by their reliance on the defence of justification had aggravated the injury caused to the Respondent by their publication of the injurious falsehood against the Respondent, as found rightly by the lower and affirmed in the leading judgment, I think the award of N10, 000, 000. 00 by the lower Court against the Appellant as damages for the defamation of the name, person and reputation of the Respondent was proper and commendable. I do hereby also un-hesitantly affirm both the reasoning, findings, conclusion and the award of N10, 000, 000. 00 as damages for defamation by the lower Court against the Appellants in favour of the Respondent.
It is for the above few words of mine and the fuller reasons marshalled out in the leading judgment that I too hold that the appeal lacks merit and is liable to be dismissed. I too hereby dismiss it for lacking in merit. I shall abide by the consequential order made in the leading, including the order as to cost.
DANLAMI ZAMA SENCHI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my noble brother, PETER OLABISI IGE (JCA) just delivered, and it substantially captured all the issues I raised during the conference of Justices that heard this appeal.
I therefore agree totally with the findings and conclusions reached in the lead judgment that this appeal lacks merit, and it is accordingly dismissed.
The judgment of the High Court of the Federal Capital Territory, Abuja delivered on the 1st day of November, 2017 by JUDE O. OKEKE, J. is hereby affirmed.
Appearances:
SAMSON ESEKHAIGBE, ESQ For Appellant(s)
SOLOMON TUNYAN, ESQ For Respondent(s)
