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AINABEBHOLO v. AAU WORKERS/ FARMERS MULTI-PURPOSE CO-OPERATIVE SOCIETY LTD & ORS (2022)

AINABEBHOLO v. AAU WORKERS/ FARMERS MULTI-PURPOSE CO-OPERATIVE SOCIETY LTD & ORS

(2022)LCN/16122(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, June 03, 2022

CA/B/550/2017

Before Our Lordships:

Uchechukwu Onyemenam Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

SUNDAY AINABEBHOLO APPELANT(S)

And

1. AMBROSE ALLI UNIVERSITY WORKERS/ FARMERS MULTI-PURPOSE CO-OPERATIVE SOCIETY LIMITED 2. J. U. IDIALU 3. R. O. AIVIEHENYO RESPONDENT(S)

 

RATIO

THE POSITION OF AW ON THE OFFENCE OF “LIBEL”

The understanding of what libel is, is important for this discourse. In the case of Guardian Newspapers Ltd & Anor v. Rev. Pastor C. I. Ajeh (2011) LPELR – 1343 (SC) libel was thus defined:
“… libel is defined as a method of defamation expressed by print, writing, pictures or signs; any publication that is injurious to the reputation of another, a false and unprivileged publication in writing of a defamatory material; a malicious written or printed publication which tends to blacken a person’s reputation or to expose him to public hatred or ridicule, contempt or to injure him in his business or profession – Corabi v. Curtis Publication Co. 441 pa. 432, 273 A. 2d 899, 904. See Black’s Law Dictionary Sixth Edition page 915.” Per FABIYI, JSC (Pp. 37-38, paras. F-B)
See also Esenowo v. Ukpong & Anor (1999) LPELR – 1166 (SC) p. 7 paras. F – G, Fayan v. UBA (2013) LPELR – 20540 (CA) p. 17 paras. B – D, Ezegbo & Anor. v. Igbokwe (2016) LPELR – 40784 (CA) p. 10 paras C – D, Chinwuba & Ors. v. Morah (2016) LPELR – 41048 (CA) pp. 11 – 12 paras. F – D.
PER ABUNDAGA, J.C.A.

FACTORS TO BE CONSIDERED IN DEFAMATION OR LIBEL CASES

On the factors to be considered in defamation or libel cases, the Court in the case of Skye Bank Plc v. Bolanle Akinpelu (2010) LPELR – 3073 (SC) held:
“The primary requirement in a claim of libel is that the plaintiff must plead the alleged libel and the precise words of libel alleged, and thereafter tender it in evidence. In the instant case, no such requirement was met by the plaintiff/respondent. The learned counsel for the appellants has submitted that since the text of the publication was neither pleaded nor proved in evidence the plaintiff has failed to prove defamation. I endorse the submission. See Professor O. Adeniji v. Professor B.L.A. Fetuga (1990) 5 NWLR Pt. 150 Pg. 375, Chief Ogunbadejo v. Otunba Owoyemi (1993) 1 NWLR Pt. 271 Pg. 517, Chief O.L. Okafor v. D.O. Ikeanyi & Ors. (1990) SC 99, and Benue Printing and Publishing Company Ltd. v. Gwagwada (1989) 4 NWLR (Pt.116) Pg. 439.” Per MUKHTAR, JSC (Pp. 24-25, paras. E-B).
The apex Court similarly held thus in the case of Guardian Newspapers Ltd & Anor (supra):
“In cases of libel, pleadings are of tremendous importance, and so the plaintiff who claims that an article is libelous of him must reproduce the whole article verbatim or the particular passage he complains of in his pleadings. No matter how long the article is, it must be reproduced. See D.D.G.A. Pharmaceuticals Ltd. v. Times Newspapers Ltd. 1973 1 Q.B. p. 21 relied on by this Court in Okafor v. Ikeanyi and Ors. 1979 12 NSCC p. 43. Issue No.1 questions whether the provisions of Order 9 Rule 4 of the High Court of Anambra State Rules 1988, were properly construed in view of the judgment of this Court in Okafor v. Ikeanyi (Supra) that the full text of the publication or any part of it complained of must be set out verbatim in the pleadings.” Per RHODES-VIVOUR, JSC (P. 6, paras. A-D).
PER ABUNDAGA, J.C.A.

WHETHER OR NOT THE BURDEN OF PROOF IN CIVIL CASES SHIFTS FROM THE PLAINTIFF TO THE DEFENDANT

Generally, the burden of proof in civil cases lies on the plaintiff and can only shift where the plaintiff has satisfactorily proved his case to the point that if not rebutted will entitle him to judgment. In line with this principle, the Court in the case of Osawaru v. Ezeiruka (1978) LPELR – 2791 (SC), held:
“In civil cases, while the burden of proof in the sense of establishing the case, initially lies on the plaintiff (Constantine Line versus Imperial Swelting Corporation (1942) AC 154, 174), the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendant and vice versa as the case progresses. The general rule which is enshrined in the maxim Ei qui affirmat non ei qui negat incumbit probatio has been provided for in Sections 134 to 136 of the Evidence Act Cap. 62. In particular, sub-Section 2 of Section 136 has provided that: “If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.” Per ANIAGOLU, JSC (Pp. 13-14, paras. E-B).
See also Ajide v. Kelani (1985) LPELR – 302(SC) p. 28 paras E – F, Imana v. Robinson (1979) LPELR – 1498 (SC) pp. 11 – 12 paras. A – B.
What these authorities decided is that the burden can only shift after the plaintiff has discharged the burden on him. In this case, the appellant did not as required by law plead verbatim the exact libelous words, and did not tender the libelous material in evidence. Therefore, it does not lie in his mouth to pick holes in the respondents’ case to shift any burden to him.
PER ABUNDAGA, J.C.A.

WHETHER OR NOT A PLAINTIFF MUST SUCCEED ON THE STRENGTH OF HIS CASE AND NOT ON THE WEAKNESS OF THE DEFENDANTS
The law is settled that a plaintiff must succeed on the strength of its case and not on the weakness of the defendants’ case. See the cases of Ossai-Ogbeh & Ors. v Agolo ​(2014) LPELR – 22189 (CA) p. 24 paras. D – E, Abubakar v. Waziri & Ors. (2008) LPELR 54 (SC) p. 26 para E, Akinola & Anor v. Oluwo & Ors (1962) LPELR – 25101 (SC) p. 3 paras. B – C. PER ABUNDAGA, J.C.A.

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice of Edo State, sitting at Benin City, in Suit No. HEK/33/2006 delivered by Hon. Justice A. Edodo-Eruaga.

The facts which evolved into this appeal are:
The appellant claimed that he was a co-founder of the 1st respondent whose president is the 2nd respondent herein. Before the disagreement that led to the institution of the appellant’s suit at the Court below, the appellant was indebted to the 1st respondent by virtue of loans which were, according to him legitimately approved for him by the 1st and 2nd respondents. However, as alleged when in seeking for admission to the Nigerian Law School, he sent Law School Confidential Report Forms to the 2nd respondent, being the President of his last employer to fill and return to the school, the 1st and 2nd respondents procured the setting up of an arbitration proceedings, which in flagrant violation of the appellant’s right of fair hearing sat and concluded its proceedings and adjudged him guilty of misappropriation of funds which were legitimate loans approved for him earlier referred to. It is also the case of the appellant that the 1st and 2nd respondents returned the filled law school forms with the incriminating and adverse report of misappropriation of funds together with the publication of the arbitration proceedings/award. The result was that the appellant was denied admission by the law school which communicated into their decision in a letter sent to him.

Aggrieved by these events and the resultant damages, psychological pains, shock, inconvenience, losses, the appellant instituted the suit at the lower Court which evolved into the instant appeal.

In the suit, the appellant claimed the following reliefs in his 4th amended statement of claim of 12 paragraphs:
“(a) A declaration that the Arbitration Proceedings/Award to the effect amongst other that Claimant is indebted to the tune of N1,115,685.01 as contained in the document styled “Settlement of Disputes in accordance with the Bendel State of Nigeria Co-operative Society Law 1976 CAP 45 (51) (2) (b) applicable in Edo State” and made by the 3rd Defendant at the request and on behalf of the 1st and 2nd Defendant is a sham, null and void and is of no effect whatsoever as the same was made in breach of the Rules of Natural Justice and was actuated by malice, bias and bad faith and should be set aside.
(b) An order directing the Defendants more particularly the 1st Defendant to rescind their earlier report and or letter accompanied with the purported Arbitration Proceeding/Award and the Nigerian Law School confidential Form sent to the Nigerian Law School in which the Claimant was falsely accused of misappropriation of funds which false allegation led to his denial of admission since the 2003/2004 academic session.
(c) The sum of N530,000,000.00 (Five Hundred and Fifty Million Naira) jointly or severally against the Defendants as exemplary and or aggravated damages for the deliberate adverse/libelous publication of misappropriation of funds leveled against the Claimant to the Nigerian Law School which the Law School believed and made the Council of Legal Education denied the Claimant his Law School admission since 2003/2004 academic session which denial have caused and is still causing the Claimant irreparable losses especially seniority in the Bar, opportunity for legal jobs/appointment and career fulfillment.
(d) An order of cost.”
See pages 90 – 92 of the record of appeal.

The claims were denied by the respondents in their 1st further amended joint statement of defence of 13 paragraphs, which can be seen at pages 21 – 22 of the record of appeal.

The appellant filed a reply to the 1st and 2nd respondents’ joint statement of defence. The reply has 10 paragraphs. See pages 27 – 28 of the record of appeal.

The lower Court in its judgment delivered on 21/7/2017 found partly in favour of the appellant. However, the claim for exemplary and/or aggravated damages for libel was refused. The appellant was piqued by this refusal and therefore filed an appeal to this Court. The notice of appeal was filed on 17/10/17. The appellant subsequently sought and obtained leave of this Court to amend his notice of appeal. The amended notice of appeal was filed on 15/1/18. It contains four grounds of appeal.

On due compilation and transmission of the record of appeal, the appellant filed his brief of argument on 15/1/18. The said brief was settled by B. O. Ainabebholo, Esq. The 1st and 2nd respondents filed their brief of argument, settled by K. O. Obamogie, Esq., on 5/10/18. It was deemed properly filed and served on 22/1/19. The appellant filed his reply brief on 31/1/19.

The briefs of argument were adopted at the hearing of the appeal on 9/3/22.

In the appellant’s brief of argument, three issues were distilled for determination. The issues are:-
“1. Whether the trial Court was right when it held that failure of the appellant to produce the publication or writing for the inspection of the Court was fatal to the claim and therefore refused to grant the relief of exemplary and or aggravated damages inspite of the fact that the said publication or writing as pleaded by the appellant and evidence led on them were admitted by the respondents, and also refused to order the 1st and 2nd respondents to rescind the libelous report of misappropriation of funds against the appellant to the Nigerian Law School.
2. Whether the trial Court was right to have based its judgment against the appellant on the pleadings, evidence and submission of parties not before it leading to miscarriage of justice and against the principle of fair hearing?
3. Whether the learned trial Judge was right in declining to award general damages to the appellant.”

SUBMISSION OF COUNSEL
ISSUE ONE
Whether the trial Court was right when it held that failure of the appellant to produce the publication or writing for the inspection of the Court was fatal to the claim and therefore refused to grant the relief of exemplary and or aggravated damages inspite of the fact that the said publication or writing as pleaded by the appellant and evidence led on them were admitted by the respondents, and also refused to order the 1st and 2nd respondents to rescind the libelous report of misappropriation of funds against the appellant to the Nigerian Law School.

Counsel refers the Court to the material portion of the judgment of the lower Court and points out that the law does not require that the words complained of as being defamatory be produced for the inspection of the Court but that the words should be reproduced through the pleadings. Counsel chronicled several decisions of the apex Court on the subject, including Skye Bank Plc v. Akinpelu (2010) 187 LRCN 110 at page 122, Onu v. Agbese ​(1985) 1 NWLR (Pt. 4) 704, Guardian Ltd. v. Ajeh (2011) 198 LRCN 108, Okafor v. Ikeanyi & Ors. (1979) 12 NSCC 43, (1979) 3 – 4 SC 9.

Counsel went on to submit that what the appellant was required in proof of his case is to reproduce the libelous article or the particular passage complained of in his pleadings which he did in line with Order 15 Rule 2 of the Edo State High Court (Civil Procedure) Rules, 2012 in paragraph 9 (a – e) of his 5th amended statement of claim. It is further submitted that the respondents did not do a consequential amendment to their statement of defence to challenge the 4th amended statement of claim of the appellant. He submitted that paragraph 11 of the 1st and 2nd respondents further amended statement of claim was further replied to by the appellant in paragraph 7 of his reply to the respondents’ further amended statement of defence. Counsel therefore submits that from these pleadings, the 1st and 2nd respondents admitted the publication of the libelous words complained of. That what the respondents did was a general traverse, which in law amounts to admission, and therefore publication requires no further proof.

Counsel relies on the case of Jukok Int’l Ltd. v. Diamond Plc (2016) 6 NWLR (Pt. 1507) 55 at pages 113 – 114 paras. G – B, and the case of Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 112 at page 195 paras. A – D.

Further submits that even the oral and documentary evidence given by the appellant were also admitted by the respondents, and therefore need no further proof.

Counsel refers to page 48 of the record of appeal, and page 50 of the record of appeal where the appellant commenced his evidence. It was contended further that if the parties were in law required to produce the form for inspection, the duty falls squarely on the respondents as the appellant had discharged the onus on him to prove that he was libeled through his oral and documentary evidence (Exhibit C).

Counsel further pointed out that the evidence given by the 2nd respondent (then 2nd defendant) on page 54 of the record of appeal is not covered by the 1st and 2nd respondents’ pleadings, and therefore goes to no issue. Submitting that the appellant discharged the burden placed on him, counsel pointed out that there was no proper evaluation by the lower Court. That it was the 1st and 2nd respondents that bore the burden of producing the form in which they alleged they filled the correct information. That he who asserts must prove that which he asserts.

Further submitted is that documentary evidence is to be preferred to oral evidence, as documentary evidence is a hanger from which to assess oral testimony. Relies on the case of Jinadu v. Esurombi-Aro (2009) 9 NWLR (Pt. 1145) 55 at page 81 paras A – C. That having not produced the Confidential Law School Form, Section 167(d) of the Evidence Act, 2011 ought to have been invoked against the respondents. Reliance is placed on the case of Onwujuba v. Obienu (1991) 4 NWLR (Pt. 183) 16.

It is further contended that had the trial Court properly evaluated the evidence before it, it could have found that there was no duty on the appellant to prove the assertion that what they wrote in the confidential report was the appellant’s indebtedness.

ISSUE TWO
Whether the trial Court was right to have based its judgment against the appellant on the pleadings, evidence and submission of parties not before it leading to miscarriage of justice and against the principle of fair hearing?

It is contended that the trial Court based its judgment on pleading, evidence and submission of parties not before it. Counsel now refers to the pleading and evidence referred to by him, and submitted that even as much as the trial Court or any member of the bench has the right to rephrase the issues for determination for parties, that right does not cover pleadings which is the exclusive right of the parties, as parties can fall or rise with the pleading. That any judgment reached outside the pleadings of the parties is bound to be set aside. Reliance is placed on the case of Okafor v. Abumafuan (2016) 12 NWLR (Pt. 1525) 167 at pp. 145 – 146, paras D – F, H – A.

The Court is therefore urged to allow the appeal on this issue.

Counsel made similar submissions with respect to evidence and submission of counsel, which he proceeded to point out. These are reflected on pages 16 – 18 of appellant’s brief of argument.

ISSUE THREE
Whether the learned trial Judge was right in declining to award general damages to the appellant. It is submitted that the trial Court erred in its refusal to award general damages in favour of the appellant. This, counsel submits is because general damages need not be specifically pleaded before it can be awarded as it is implied by law. That what the law gives to the trial Judge is the discretion of how much to award, and not whether to award anything at all. Counsel relies on the case of Hanseatic Int’l Ltd v. Usang (2002) 13 NWLR (Pt. 784) 376 at page 409, paras. H – B. Counsel therefore urged the Court to award general damages in favour of the appellant, especially, in the light of the effect of the arbitration award made against him in disregard to the rules of natural justice which has been set aside.

On cost, counsel submits that the cost awarded is relatively low, and relies on Order 53 Rule 7 of the then Bendel State High Court (Civil Procedure) Rules 1988 applicable to Edo State. He refers specifically to Rule 7. He points out other factors which the trial Court should have taken into consideration, which if taken into consideration could have influenced the trial Court in the costs awarded. The Court is therefore urged to award higher costs in favour of the appellant.

The Court is on the whole urged to allow the appeal, and to set aside the judgment of the trial Court.

In their brief of argument, the 1st and 2nd respondents distilled four issues for determination. The issues are:
“1) Whether the appellant proved his claim of libel against the 1st and 2nd respondents to entitle him to exemplary and/or aggravated damages?
2) Whether the judgment appealed against by the appellant is not amply supported by the pleadings and evidence adduced before the trial Court.
3) Whether the learned trial Judge was right in declining to award general damages to the appellant.
4) Whether the trial Court exercised its discretion judiciously and judicially when it awarded the sum of N50,000.00 cost in favour of the appellant.”

SUBMISSION OF COUNSEL
ISSUE ONE
Whether the appellant proved his claim of libel against the 1st and 2nd respondents to entitle him to exemplary and/or aggravated damages?

It is submitted for the respondents that the lower Court was right when it held that the appellant did not prove his claim of libel against the respondents, and therefore not entitled to the damages claimed.

Respondents’ counsel stated the ingredients to prove in a claim of libel are as set out in the case of Guardian Newspapers Ltd. & Anor v. Ajeh (2011) 10 NWLR (Pt. 1256) 574 at 558 paras. E – G.

Counsel now submitted that it is mandatory in a libel claim that the exact words complained of must be pleaded and proved. That in this appeal the appellant failed to plead and prove the exact words alleged to be defamatory of him at the trial. Counsel went on to justify the findings of the trial Court on pages 120 – 121 of the record of appeal. Further cited are: Ejikeme v. Nwosu (2002) 3 NWLR (Pt. 754) 356, (2001) LPELR – 5493 (CA) pages 33 – 35, Okafor v. Ikeanyi & Ors. (1979) 3 – 4 (SC) 65, (1979) LPELR – 241 (SC) 11. Reference is made to Exhibit C which is the letter written by the Nigerian Law School to the appellant. That based on the materials presented before the lower Court, no libel was proved by the appellant because the 2nd respondent’s contention that the appellant was indebted to the 1st respondent was confirmed by the appellant himself as correct. Consequently, no action can lie against the respondents for a correct report on appellant’s indebtedness to the 1st respondent, respondents’ counsel further submitted. Cited further in support of this submission is the case of Access Bank Plc v. Muhammad (2014) 6 NWLR (Pt. 1404) 613 at 625.

Also submitted is that there is nothing untruth about the confidential report which was made while discharging his duty by the 2nd respondent on behalf of the 1st respondent, being the appellant’s employer. The following cases are further cited to strengthen counsel’s submission:
M. T. S. Ltd v. Akinwunmi (2009) 16 NWLR (Pt. 1168) 633 at 652 paras. B – C, Ekong v. Otop (2014) 11 NWLR (Pt. 1419) 549 at 576 paras C – D.

Further submitted is that malice is absent and cannot be inferred.

Counsel also submitted that there is contradiction between the appellant’s pleading and evidence as to when the arbitration award was sent to him and when he sent the law school form to the 1st and 2nd respondents. In regard to this, the case of Ojiogu v. Ojiogu (2010) 8 NWLR (Pt. 1198) 1 at 20 paras. F – H was cited. Referring to paragraph 11 of the respondents’ statement of defence, and the evidence of the 2nd respondent under cross-examination, it was submitted for the respondents that the report made to the Nigerian Law School by the 2nd respondent on behalf of the 1st respondent was honestly made, hence the arbitration award being attached to the report. Counsel disputes the submission of appellant’s counsel that the respondents admitted the appellant’s claim for libel. That it cannot be because the alleged libelous material was not pleaded, nor proved in evidence. That the onus of proof cannot also be on the respondents because, the elementary principle of law is that he who asserts must prove. In regard to the case of UBA v. Omiyi (2010) 1 NWLR (Pt. 1176) 640 cited by the appellant’s counsel, it is contended for the respondents that the case is to the effect that to prove libel, the alleged libelous publication ought to be produced before the trial Court; that was exactly what happened in that case, counsel further stressed. Counsel further contended that the libelous publication having not been produced, in the instant appeal the lower Court was right when it dismissed the appellant’s claim.

ISSUE TWO
Whether the judgment appealed against by the appellant is not amply supported by the pleadings and evidence adduced before the trial Court.

Counsel’s first approach on issue two is that ground 2 from which it was distilled is incompetent because it is vague or general in terms, or that it discloses no reasonable ground of appeal, and relies on Order 7 Rule 3 of the Court of Appeal Rules 2016, and the case of Metal Construction (W.A.) Ltd. v. Migliore & Ors (1990) LPELR – 1869 (SC) page 9. The Court is therefore urged to strike out ground 2 and issue 2 distilled from the said ground 2. On the merit, and in response to the appellant’s submission, it is counsel’s submission that the trial Court did not base its judgment on pleadings, evidence and submissions of parties not before it.

Counsel refers to the record of appeal, page 91 which contains paragraph 9(b) of the respondents’ statement of defence in which the trial Court substituted the word “which” with “with” and submits that it as a clerical error committed by the trial Court, especially when considered in the light of the same pleading rephrased on pages 117 – 118 of the record of appeal.

Counsel further submits that it is not every mistake made by the lower Court that will result in the judgment of the Court being set aside. Counsel also refuted the appellant’s claim that the judgment was based on evidence and submission not before the Court.

It is submitted for the respondents that the learned trial Judge carefully evaluated the evidence before the Court against the backdrop of the pleadings and the final submissions of counsel before he arrived at his decision.

The Court is therefore urged to resolve issue two in favour of the respondents.

ISSUE THREE
Whether the learned trial Judge was right in declining to award general damages to the appellant.

It is submitted that general damages are not awarded arbitrarily or capriciously. The Courts award general damages only when a claim before it is proved. That it must be remembered that general damages are damages which the law will presume to be the direct, natural or probable consequence of the act complained of by the claimant.

It was submitted that the appellant’s claim for damages was tied to his relief for libel, which failed. Therefore, it was submitted that the trial Court could not have awarded the appellant general damages just because his relief to set aside the arbitral award made against him succeeded. That all that the appellant was entitled to after the success of his reliefs 1 and 2 was an award of costs, which the lower Court made in his favour. There is a world of difference between general damages and costs, counsel further submitted.

It was further submitted that it is clear from appellant’s claim before the lower Court that appellant sought three reliefs from the Court, namely:
“1) Declaration that the arbitral award rendered against him was a sham and in breach of rules of natural justice.
2) An order directing the respondents to rescind their confidential report, accompanied with the arbitral award, from the Nigerian Law School.
3) The sum of N530,000,000.00 (Five hundred and thirty million naira) exemplary or aggravated damages against the respondents for libel.”

It was therefore submitted that there is no claim for general damages, as can be seen from the claims.

ISSUE FOUR
Counsel’s submission on this issue is that it is trite law that costs follow events in litigation. The award of costs is entirely at the discretion of the Court, which is to be exercised judicially and judiciously. That a successful party in litigation is entitled to costs unless there are special reasons why he should be deprived of his entitlement. On this submission, counsel relied on the authority of N. N. P. C. v. Klifco (Nig.) Ltd (2011) 10 NWLR (Part 1255) 209 at pages 234 – 235.

Counsel further submitted that the costs of N50,000.00 (Fifty thousand naira) only which was awarded in favour of the appellant is not on the low side considering the fact that not all the issues were resolved in his favour. That appellant’s substantial claim for libel failed. Submits that justice ought not to be one way. It was contended that the respondents also incurred expenses in defending this case but no costs was awarded in their favour to defray the expenses incurred in defending the spurious claim for libel. Further submission of counsel is that the assessment of the quantum of costs by the trial Court was placed on the right parameters. That appellant has not demonstrated in this appeal that the trial Court went outside the parameters for award of damages. It was therefore urged on this Honourable Court not to interfere with the award of costs of litigation as the trial Court, in its assessment, acted judicially and judiciously. Consequently, that Issue No. 4 ought to be resolved against the appellant and in favour of the respondents.

The Court is on these submissions urged to dismiss the appeal, and to affirm the judgment of the trial Court.

REPLY BRIEF
On issue one, it is submitted that the evidential burden is on the respondents. It is contended that there is no pleading by the 1st and 2nd respondents on the issue of indebtedness and therefore the evidence of the 1st and 2nd respondents in this regard goes to no issue. That Exhibit “C” did not state that the appellant was denied law school admission on ground of indebtedness but on the ground of misappropriation of funds. That the 1st and 2nd respondents did not deny writing a report to the Nigerian Law School.
It is further submitted that the defence of justification and or qualified privilege relied on by the respondents cannot avail them because they did not plead and prove by evidence, that they informed the Nigerian Law School that the appellant was indebted to them. What indeed they told the Law School was that the appellant misappropriated funds as contained in Exhibit “C” which they did not deny. This, counsel submitted was maliciously done. It is submitted that the respondents had the right to furnish the law school with information about the appellant but such information must be based on truth without malice before the defence of justification can avail them. In support of this submission, the case of UBA v. Omiyi (2010) 1 NWLR (Pt. 1176) 640 at 65 para F is cited.

It is further submitted that the defence was not raised in the respondents’ pleading, and therefore cannot avail them because any evidence given by them under cross-examination on that goes no issue.

Further, on what seems to be a re-argument, counsel submitted that a party is not bound to reproduce verbatim, the libelous article, but to reproduce the particular passage complained of.

On the contention of the respondents that the appellant did not call anyone from the Nigerian Law School to testify, counsel submits that Exhibit “C” suffices.

It is further submitted that since the respondents admitted making a report, it is incumbent on them to produce the report. That in view of the failure to produce the report, Section 167(d) of the Evidence Act, 2011 should be invoked against them.

In reference to the submission of respondents’ counsel that the contents of the arbitration proceedings/award cannot be different from the contents of the confidential report, it is submitted that the contents are different. It is further contended that the Nigerian Law School did not refer to the arbitration proceeding/award as the basis of its refusal to give admission to the appellant. That what the respondents alleged against the appellant in the confidential report was misappropriation of funds.

In reply to issue two, counsel submits in response to the competence of ground 2, that the said ground two is competent. That counsel did not point out what is vague or general. Submits that ground two complains of is an error in law.

The argument on the substance of issue two to my mind is a reinforcement of submission already made in the appellant’s brief of argument. And this should not be the purpose of a reply brief.

As regards issue three, it is also a re-argument of the arguments canvassed in the appellant’s brief of argument.

ISSUE FOR DETERMINATION
The issues distilled for determination by the 1st and 2nd respondents are substantially in sync with those distilled by the appellant.

However, the issues formulated by the respondents are more congruent to the grounds of appeal as well as more precise. Therefore, I shall determine this appeal on the respondents’ issues.

RESOLUTION OF THE ISSUES
ISSUE ONE
In a nutshell, what this Court is called upon to decide in this issue is whether the appellant established or proved libelous publication concerning the appellant by the respondents. The appellant has accused the learned trial Judge of failure to apply the decision in the cases of Guardian Newspapers Ltd v. Ajeh (2011) 198 LRCN, Okafor v. Ikeanyi & Ors. (1979) 12 NSCC 43. In the submission of counsel for the appellant, he referred to page 121 of the record of appeal, where the learned trial Judge held:
“I am in agreement with the defence that this failure of the Claimant to produce this alleged libelous publication made by the 2nd Defendant in (sic) fatal to the head of claim. I am not in doubt that some uncomplimentary information was sent to the Nigerian Law School resulting in it sending Exhibit “C” to the Claimant. It is the place of the Claimant to produce this said publication or writing for the inspection of the Court. In the absence of that, this head of claim must fail and it hereby fails. I therefore resolve issue 3 in favour of the Defendant against the Claimant.”

The submission of counsel is that, there is nothing in the authorities cited that requires that the libelous publication must be produced in Court for inspection. That what those authorities decided is the reproduction of the whole article or the particular passage complained of in the pleadings. The respondents canvassed a contrary position, which is, the reproduction of the libelous publication verbatim.

The understanding of what libel is, is important for this discourse. In the case of Guardian Newspapers Ltd & Anor v. Rev. Pastor C. I. Ajeh (2011) LPELR – 1343 (SC) libel was thus defined:
“… libel is defined as a method of defamation expressed by print, writing, pictures or signs; any publication that is injurious to the reputation of another, a false and unprivileged publication in writing of a defamatory material; a malicious written or printed publication which tends to blacken a person’s reputation or to expose him to public hatred or ridicule, contempt or to injure him in his business or profession – Corabi v. Curtis Publication Co. 441 pa. 432, 273 A. 2d 899, 904. See Black’s Law Dictionary Sixth Edition page 915.” Per FABIYI, JSC (Pp. 37-38, paras. F-B)
See also Esenowo v. Ukpong & Anor (1999) LPELR – 1166 (SC) p. 7 paras. F – G, Fayan v. UBA (2013) LPELR – 20540 (CA) p. 17 paras. B – D, Ezegbo & Anor. v. Igbokwe (2016) LPELR – 40784 (CA) p. 10 paras C – D, Chinwuba & Ors. v. Morah (2016) LPELR – 41048 (CA) pp. 11 – 12 paras. F – D.

On the factors to be considered in defamation or libel cases, the Court in the case of Skye Bank Plc v. Bolanle Akinpelu (2010) LPELR – 3073 (SC) held:
“The primary requirement in a claim of libel is that the plaintiff must plead the alleged libel and the precise words of libel alleged, and thereafter tender it in evidence. In the instant case, no such requirement was met by the plaintiff/respondent. The learned counsel for the appellants has submitted that since the text of the publication was neither pleaded nor proved in evidence the plaintiff has failed to prove defamation. I endorse the submission. See Professor O. Adeniji v. Professor B.L.A. Fetuga (1990) 5 NWLR Pt. 150 Pg. 375, Chief Ogunbadejo v. Otunba Owoyemi (1993) 1 NWLR Pt. 271 Pg. 517, Chief O.L. Okafor v. D.O. Ikeanyi & Ors. (1990) SC 99, and Benue Printing and Publishing Company Ltd. v. Gwagwada (1989) 4 NWLR (Pt.116) Pg. 439.” Per MUKHTAR, JSC (Pp. 24-25, paras. E-B).
The apex Court similarly held thus in the case of Guardian Newspapers Ltd & Anor (supra):
“In cases of libel, pleadings are of tremendous importance, and so the plaintiff who claims that an article is libelous of him must reproduce the whole article verbatim or the particular passage he complains of in his pleadings. No matter how long the article is, it must be reproduced. See D.D.G.A. Pharmaceuticals Ltd. v. Times Newspapers Ltd. 1973 1 Q.B. p. 21 relied on by this Court in Okafor v. Ikeanyi and Ors. 1979 12 NSCC p. 43. Issue No.1 questions whether the provisions of Order 9 Rule 4 of the High Court of Anambra State Rules 1988, were properly construed in view of the judgment of this Court in Okafor v. Ikeanyi (Supra) that the full text of the publication or any part of it complained of must be set out verbatim in the pleadings.” Per RHODES-VIVOUR, JSC (P. 6, paras. A-D).

In this appeal, the appellant did not plead verbatim, the exact libelous words alleged. It is contended by his counsel that by the use of the words “misappropriation” in paragraph 9(b) of the 4th amended statement of claim he had reproduced verbatim the alleged libelous publication as required.

To really appreciate the hollowness of this argument, it is in my view pertinent to reproduce the averments in paragraphs 9(a) and 9(b) of the appellant’s 4th amended statement of claim. They are as follows: arbitration was actuated by malice and bad faith to wit:
(a) The Arbitration Proceedings was set up after Claimant sent Law School Confidential Report Form(s) to 2nd Defendant to fill and return to the Nigeria Law School as 2nd Defendant was President of 1st Defendant Claimant’s last employer.
(b) The 2nd Defendant for and on behalf of the 1st defendant subterraneous (sic) and surreptitiously sent the form to Nigerian Law School with incriminating and adverse publication of misappropriation of funds leveled against the claimant along with the Arbitration Proceedings/Award under reference which incriminating and adverse comment subsequently led to the denial of Nigerian Law School admission for the Claimant since the 2003/2004 session.”

It is very clear that the alleged libelous information is contained in the Nigerian Law School Confidential Report Forms sent to the 2nd respondent to fill and return to the Nigerian Law School. The appellant in conformity with the requirement of the law on libel cases is expected to plead the exact words as used by the 2nd respondent in the form, and thereafter, in the course of his evidence in support of his pleadings, tender in evidence the confidential report form as filled by the 2nd respondent.

This was not done. Rather, the appellant has shifted the burden to the respondents on the ground that he had discharged his burden, which burden now shifted to the respondents. Counsel has missed the point. There is a serious misconception of the law here.

Generally, the burden of proof in civil cases lies on the plaintiff and can only shift where the plaintiff has satisfactorily proved his case to the point that if not rebutted will entitle him to judgment. In line with this principle, the Court in the case of Osawaru v. Ezeiruka (1978) LPELR – 2791 (SC), held:
“In civil cases, while the burden of proof in the sense of establishing the case, initially lies on the plaintiff (Constantine Line versus Imperial Swelting Corporation (1942) AC 154, 174), the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendant and vice versa as the case progresses. The general rule which is enshrined in the maxim Ei qui affirmat non ei qui negat incumbit probatio has been provided for in Sections 134 to 136 of the Evidence Act Cap. 62. In particular, sub-Section 2 of Section 136 has provided that: “If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.” Per ANIAGOLU, JSC (Pp. 13-14, paras. E-B).
See also Ajide v. Kelani (1985) LPELR – 302(SC) p. 28 paras E – F, Imana v. Robinson (1979) LPELR – 1498 (SC) pp. 11 – 12 paras. A – B.
What these authorities decided is that the burden can only shift after the plaintiff has discharged the burden on him. In this case, the appellant did not as required by law plead verbatim the exact libelous words, and did not tender the libelous material in evidence. Therefore, it does not lie in his mouth to pick holes in the respondents’ case to shift any burden to him.

The law is settled that a plaintiff must succeed on the strength of its case and not on the weakness of the defendants’ case. See the cases of Ossai-Ogbeh & Ors. v Agolo ​(2014) LPELR – 22189 (CA) p. 24 paras. D – E, Abubakar v. Waziri & Ors. (2008) LPELR 54 (SC) p. 26 para E, Akinola & Anor v. Oluwo & Ors (1962) LPELR – 25101 (SC) p. 3 paras. B – C.

The appellant made heavy weather of Exhibit “C”. Exhibit “C” is a letter addressed to the appellant by the council of Legal Education, dated 19th November, 2003. It is titled:
Referred case
Ainababhole, Ehiabtu Sunday
The first paragraph of the said letter reads:
“With reference to your application for admission into the Nigerian Law School in the 2003/2004 Academic Session, I have been directed to inform you that after the consideration of all the facts and documents received so far, the Management requires that more detailed information should be provided on the allegation of misappropriation of funds levied against you by your employer.”

The paragraph refers to facts and documents received that were considered. It also requires detailed information on the allegation of misappropriation of funds.

Now, there is no specific mention of the information filled by the respondents in the Law School Form in which the respondents were required to provide confidential report concerning the appellant in Exhibit “C”. Therefore, the whole claim of the appellant based on the information filled by the respondents in the forms sent to the respondents by the law school for confidential report concerning the appellant is speculative. That is the main reason why the appellant ought to have pleaded the exact libelous words verbatim and to tender the material in which they were carried in evidence. The appellant is the one alleging libel. He cannot push the burden of proof to the respondents.

In the absence of the exact words alleged to be libelous pleaded and proved by evidence, and the material in which they were made tendered in evidence, the Court is not in a position to decide whether the words are indeed defamatory or convey defamatory imputation of the appellant. This is an essential ingredient in proof of libel.

There is the contention between the appellant and the respondents as to whether the words complained of were published. The submission of the respondents is that the alleged libelous words were not published because the appellant failed to call a witness from the Nigerian Law School to which the alleged libelous words were communicated. For the appellant, it is argued that the necessity to call a person from the Nigerian Law School was obviated by reason of the fact that Exhibit “C” was admitted by the respondents.

It is settled law that an action for libel cannot be sustained without proof of publication. See Mamman v. Salaudeen (2005) LPELR – 1833 (SC) p. 31 paras. B – C, Ayeni v. Adesina (2007) LPELR – 4932 (CA) Pp. 38 – 44 paras. F – D, Akiti v. Punch (Nig.) Ltd. & Ors. (2009) LPELR – 3665 (CA) pp. 22 – 24 paras. E – D.

The 2nd respondent is not the author of Exhibit “C”, which is apparently not the libelous material as shown by its contents. Therefore, the contention of appellant’s counsel that its admission in evidence proves publication is not tenable. The alleged libel was made to the Nigerian Law School. The libelous material was neither tendered nor the exact libelous words pleaded. The appellant did not also see the need to call a witness to testify to the receipt of the libelous material and its effect on the mind of the said Nigerian Law School concerning the appellant. Therefore, in my respectful view, publication was not proved. The publication of the libelous material having not been proved, there was no duty on the respondents to prove justification or qualified privilege. In the circumstances, the Court could not be expected to rescind a report that was not before it.

This brings me to the conclusion of resolution of issue one which I hold to be in favour of the respondents.

ISSUE TWO
Objection is raised to the competence of issue two on the ground that it was formulated from ground two of the grounds of appeal which as contended by respondents’ counsel is incompetent. The Court is therefore urged to strike out issue two. It is submitted that ground two is vague and in breach of Order 7 Rule 3 of the Court of Appeal Rules 2016, which states:
“Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and a ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the respondent.”

The appellant did not respond to this objection in his reply brief. The issue touches on the jurisdiction of this Court to determine issue two. Being an issue of jurisdiction, it is settled law that a Court can raise and determine an issue of jurisdiction suo motu without inviting parties to address her on it. See the cases of PDP v. Rijau & Ors (2021) LPELR – 54562 (CA) pp. 32 – 33 paras. D – C, Mpanuago & Ors v. Global Mckens Ltd. (2018) LPELR – 50063 (CA) Pp. 8 – 10 para. B, Johnson & Ors v. A. G. Rivers State & Ors. (2018) LPELR – 49287 (CA) pp. 26 – 27, para. A.

In determining the competence of issue two, and invariably ground two of the appellant’s grounds of appeal, the Court is confronted with the question whether the objection is properly raised. This brief (respondents’ brief of argument) was filed under the old rules, that is, the Court of Appeal Rules, 2016. Therefore, the competence of the objection will be considered under the Court of appeal Rules, 2016. Order 10 Rules 1 and 3 of the Court of Appeal Rules, 2016 are pertinent. They are hereunder reproduced for ease of reference:
“ORDER 10 RULE 1: A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time .”
“ORDER 10 RULE 3: Where the Respondent fails to comply with this Rule, the Court may refuse to entertain the objection or may adjourn the hearing thereof at the costs of the Respondent or may make such other order as it thinks fit.”

The respondents did not comply with the provisions of the Rules of this Court. The objection is therefore incompetent and is hereby discountenanced.

I shall therefore launch into the determination of the merits of issue two.

In the submission of counsel for the appellant, it was argued that the judgment of the trial Court is based on pleadings, evidence and the Respondent’s submission that were not before the Court. He concluded that the trial Court did not advert its mind to these before arriving at the decision it did. The Respondents debunked these claims. The claims and counter-claims of the Appellant and the Respondents respectively necessitated a meticulous examination of these processes. Having done so, I can state without fear of contradiction that the contention of the appellant are spurious. There is no substance in those claims. Take for instance, the claim that the trial Court amended paragraph 9 (b) of the respondent’s statement of defence by substituting the word “which” with the word “with”.

The said paragraph 9(b) of the Respondent’s statement of defence states:
“9(b) The 2nd Defendant for and on behalf of the 1st Defendant subterraneous (sic) and surreptitiously sent the form to Nigerian Law School with incriminating and adverse publication of misappropriation of funds leveled against the claimant along with the arbitration proceeding/award under reference WHICH incriminating and adverse comment subsequently led to the denial of the Nigerian Law School admission for the Claimant since 2003/2004 session.”

What the appellant’s counsel refers to as amendment of the said paragraph reads:
“9(b) The 2nd Defendant for and on behalf of the 1st Defendant subterraneous and surreptitiously sent the form to Nigerian Law School with incriminating and adverse publication of misappropriation of funds leveled against the claimant along with the arbitration proceeding/award under reference WITH the denial of the Nigerian Law School admission for the Claimant since 2003/2004 session.”
See page 118 of the record of appeal. Here, the learned trial Judge purportedly reproduced paragraph 9(b) of the said statement of defence aforesaid, substituting “with” with “which”.

He however rephrased the said paragraph in his own words thus:
“The claimant in his pleadings 4th amended claim averred that the 2nd defendant for and on behalf of the defendant sent an adverse publication to the Law School that led to his being denied admission to the Law School.”

This shows that the essence of paragraph 9(b) of the 1st and 2nd respondents’ statement of defence was not lost to him. It also shows clearly that the use of the word “with” for “which” was a mere clerical error which did not influence the judgment of the trial Court. Indeed, the appellant has not demonstrated to this Court in what way this so-called amendment has occasioned injustice to him.

Therefore, I resolve issue two in favour of the Respondents.

ISSUES THREE AND FOUR
The argument of appellant’s counsel is that since issues one and two were decided in his favour, he ought to have been awarded general damages, contending that general damages need not be specifically pleaded. He placed reliance on the case of Hanseatic International Ltd. V. Usang (2002) 13 NWLR (Part 784) 376 at 409, Paras. H – B.

On the issue of costs awarded, counsel submits that it is on the low side, and relies on Order 53 Rule 7 of the Bendel State High Court (Civil Procedure) Rules, 1988 applicable to Edo State, and Order 47 Rule 7 of Edo State High Court (Civil Procedure) Rules, 2012 the (Extant Rules).

For the respondents, it is submitted that general damages are not awarded arbitrarily or capriciously. That it is awarded only on proof of the claim. It is submitted that the appellant’s claim for damages was tied to his relief for libel which failed. Therefore the appellant’s claim for general damages is misconceived, contended respondents’ counsel.

On the award of costs, it is contended by the respondents that costs is entirely at the discretion of the Court. He went on to submit that costs of N50,000.00 is not on the low side, considering the fact that not all the issues were resolved in the appellant’s favour.

Let me begin with the Appellant’s agitation on the issue of general damages not having been awarded in his favour.

I shall first correct an issue. Counsel submits that he should be entitled to general damages since issues one and two were resolved in his favour. What was decided in the appellant’s favour is not issues one and two, but claims (a) and (b) of the appellant’s claims. I refer to the lower Court’s Orders in the Judgment that were made in his favour at pages 121 – 123 of the record of appeal.

Respectfully, I urge my Lords to take a further scrutiny of the appellant’s claims as contained in his 4th Amended Statement of claim at page 92 of the record of appeal. All the Claims stand independently of each other. Claim (c) is a claim of N530,000,000.00 as exemplary and/or aggravated damages for libel. Libel having not been proved as held by the lower Court, and affirmed in my resolution of issue one which is relative to it, the claim for exemplary and/or aggravated damages went with it.

And in relation to claims (a) and (b) which were granted, no general damages was tied to it. Now, where general damages was not asked for, was the trial Court competent to grant it? The resort to the case of Hanseatic International Ltd. V. Usang (Supra) cannot come to the aid of the appellant. This is because, even though, the settled position of the law is that general damages is implied, and flows generally from the defendant’s act, the law contemplates it being made a head of claim, and evidence led to enable the Court to quantify it. The Appellant did not pray for general damages tied to the first and second reliefs, that is; reliefs (a) and (b).
It is settled law that a Court cannot grant a relief not claimed. See IMNL v. Nwachukwu (2004) LPELR 1526 (SC) pp 21 – 22 paras F – B, Amaechi v. INEC & Ors (2008) LPELR – 446 (SC), p. 189 Paras B – C, Osuji v. Ekeocha (2009) LPELR – 2816 (SC) P 60 Paras A – B. Therefore, the lower Court could not suo motu have proceeded to award general damages when the appellant did not deem it necessary to pray for general damages in relation to claims (a) and (b) just as he prayed for exemplary and/or aggravated damages for libel. The appellant in this case could not have been entitled to general damages. If he had asked for it or made it a head of claim, and asked for a certain amount, then the principle in the case of Hanseatic International Ltd. V. Usang (Supra) would apply, and all that would have been expected is for him to show in his evidence that he suffered damages by reason of the Arbitration proceeding/Award and the malicious information supplied in the Confidential report sent to the Nigerian Law School.

On the issue of costs, as rightly submitted by the respondents’ counsel, costs follow events and it is entirely at the discretion of the Court. A successful party in litigation is entitled to costs unless there are special reasons why Court should act otherwise. This case is one in which the appellant recorded partial success. In most cases of partial success, it is usual that parties are ordered to bear their respective costs. Therefore, I find no justification for appellant to ask for more than he was awarded.

In other words, the cost of N50,000.00 as costs awarded in the appellant’s favour is adequate.

It therefore goes without saying that I resolve issues three and four in favour of the respondents.

In the result, all the issues having been resolved against the appellant, this appeal is without merit, and it is hereby dismissed.

In consequence, the judgment of the lower Court delivered on 21st July, 2017 in Suit No. HEK/33/2006 is hereby affirmed.

I shall award no costs.

UCHECHUKWU ONYEMENAM, J.C.A.: I read before now the draft of the judgment just delivered by my learned brother, JAMES GAMBO ABUNDAGA, JCA. My Lord has succinctly analysed the issues in this appeal and has perfectly resolved them against the Appellant and in favour of the Respondents; I have nothing more to add than to say that the appeal lacks merit.

I agree with his reasons for dismissing the appeal; I too dismiss the same.

I affirm the judgment of the High Court of Edo State delivered on 21st July, 2017 by A. Edodo-Eruaga, J. in Suit No. HEK/33/2006.

ADEMOLA SAMUEL BOLA, J.C.A.: I have read in advance the draft of the judgment read by my learned brother, JAMES GAMBO ABUNDAGA, JCA. I am in complete agreement with his lucid reasoning and conclusion as contained in the decision.

In consequence thereof, I hold that this appeal lacks merit. The judgment of the lower Court in suit no. HEK/33/2006 is hereby affirmed. There shall be no order as to costs.

Appearances:

B.O. Ainabebholo, Esq. For Appellant(s)

K.O. Obamogie, Esq., with him, E. E. Ahamioje and O. J. Inegbedion – for 1st and 2nd Respondents. For Respondent(s)