ALHAJI ABBA ASHEIKH V. ALHAJI KAKA MALLAM YALE
(2010)LCN/3781(CA)
In The Court of Appeal of Nigeria
On Thursday, the 13th day of May, 2010
CA/J/3/2003
RATIO
TORT: LIBEL; INGREDIENTS FOR PROVING LIBEL
To succeed in an action, for libel the plaintiff must prove four ingredients:
(a) That the words were published;
(b) That the words are defamatory of the plaintiff either in their natural meaning or by reason of an innuendo;
(c) That the words referred to the plaintiff; and
(d) That the words were published to a third person.
Failure to establish anyone of the four ingredients is fatal to the plaintiff’s case. See Edebiri v. N.B.C. Suit No. B/156/74 decided on 28/6/78 page PR1 Nig. Law of libel and the Press by G. Fawehinmi. PER HON. JUSTICE BODE RHODES-VIVOUR, J.C.A
COURT: HOW SHOULD THE COURT DETERMINE IF WORDS AMOUNT TO LIBEL
It is the duty of the Judge to decide whether the words published by the defendant are libelous of the plaintiff, or capable of conveying a libelous meaning and whether the words convey a defamatory meaning is a question of law. Whether the words are in their natural and ordinary meaning defamatory is a question to be answered by the Judge. The test to be applied in determining whether or not the words complained of are defamatory is whether a reasonable man after reading the contents of Exhibit B would conclude that it is libelous. See Dumbo v. Idugboe 1983 1 SCNLR P. 29; Okafor v. Ikeanyi 1979 3-4 SC P. 99. PER HON. JUSTICE BODE RHODES-VIVOUR, J.C.A
PROCEDURE: ESSENCE AND EFFECT OF PRE-ACTION NOTICE
Pre-action notice is a procedural step which ought to be taken before an action is filed in court. It is a condition precedent. It does not therefore impede the constitutional right of access to courts. See AMADI VS NNPC (2000) 10 NWLR (Pt 674) 76 and NNPC VS TIJANI (2006) 17 NWLR (Pt.1007) 29.
Pre-action notice does not remove the jurisdictional powers of courts to adjudicate UMOKORO VS NPA (1997) 4 NWLR (Pt. 502) 656 at 667. PER ABUBAKAR DATTI YAHAYA, J.C.A
JUSTICES
BODE RHODES-VIVOUR Justice of The Court of Appeal of Nigeria
UZO NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
Between
ALHAJI ABBA ASHEIKH Appellant(s)
AND
ALHAJI KAKA MALLAM YALE Respondent(s)
HON. JUSTICE BODE RHODES-VIVOUR, J.C.A (Delivering the Leading Judgment).: This is an appeal from the judgment of a Borno State High Court delivered on the 31st day of May, 2002, striking out the case for want of jurisdiction.
The appellant’s plaintiff’s claim against the defendant/respondent was for:
(1) A declaration that the letter written by the defendant to the Chairman Local Government Service Commission Borno State and copied to the Secretary to the Borno State Government Ref. No. KLG/ADM/S/T.1/1/1 dated 29th January, 1996 is libelous of the plaintiff.
(2) The sum of Five Million Naira (N5m) damages for libel published by the defendant concerning the plaintiff.
(3) Costs of the suit.
Trial commenced on the 7th day of October, 1998. The plaintiff called six witnesses while the defendant called four witnesses. Five documents were admitted as exhibits. On the 13th of December, 2001 counsel commenced closing speeches. This came to an end on the 9th of April, 2002 after an adjournment. Judgment was fixed for the 23rd of May, 2002, but on that day rather than deliver judgment the learned trial Judge raised the issue of jurisdiction suo motu; and proceeded to invite counsel to address the court on Regulation 55 of the Borno State Revised Local Government Staff Regulations 1986, which according to the, learned trial Judge touches on the competence of the court to hear and decide, the case. After addresses by counsel, the learned trial Judge delivered a judgment on the 31st day of May, 2002 striking out the case for want of jurisdiction because the plaintiff failed to fulfill the condition precedent required by Regulation 55 of the Borno State Revised Local Government Staff Regulations of 1986. This appeal is against that judgment.
In accordance with order 17 Rules 2 and 4 of the Court of Appeal Rules 2007 the appellant’s brief was filed on the 18th of February, 2003, while the respondent’s brief was deemed properly filed and served on the 8th of May, 2006.
In the appellant’s brief three issues were formulated for determination of this appeal. They are:
1. Whether a pre-action requirement can be raised by the trail Judge suo-motu at the close of evidence and address even though the defendant did not raise non compliance by his statement of defence and/or give evidence in respect thereof.
2. Whether Regulation 55 of the Borno State Revised Local, Government Staff Regulations 1986 was made by a competent authority, having the requisite power to make the same.
3. Whether Regulation 55 of the Borno State Revised Local Government Staff Regulations is constitutional.
On the other side of the fence the respondent’s counsel formlated five issues for determination.
1. Whether the court was correct in raising suo motu the issue of jurisdiction after address.
2. Whether the issue of jurisdiction must be pleaded before objection taken to it.
3. Whether a court can proceed with a matter without complying with the condition precedent.
4. Whether Regulation 55 of the Borno State Revised Local Government Staff Regulations is constitutional.
5. Whether the Borno State Revised Local Government Staff Regulations was made by a competent authority.
As can be observed respondent’s issues 1, 2 and 3 correspond with the appellant’s issue 1. So also the respondent’s issues 4 and 5 with the appellant’s issues 3 and 4 though differently expressed. I have taken a close look at the issues formulated by both sides and I consider the 4th issue to be fundamental, and crucial in deciding this appeal. If it succeeds addressing the other issues would amount to an academic exercise, and courts do not waste precious judicial time on worthless pursuits. Courts are to determine live issues. See Oyeneye v. Odugbesan 1972 4 SC P. 244; Bakare v. A.C.B. LTD. 1986 3 NWLR Pt. 26. P. 47; Nzom v. Jinadu 1987 1 NWLR Pt. 51 P. 537; Okulaga v. Awosanya 2002 2 NWLR Pt. 645 P. 530.
It is important to state the facts in brief now. In January, 1996 the appellant; was a civil servant; and an employee of the Borno State Local Government Service Commission. The respondent was the caretaker chairman of the Local Government Council of Konduga Local Government of Borno State. On the 10th of January, 1996 the appellant was transferred from Kwaya-Kusar Local Government Council to Konduga Local Government Council as Acting Director of Personnel Management. The appellant claims that after he resumed duty at Konduga Local Governmerit Council the respondent wrote to the Chairman Local Government Service Commission rejecting the posting (of the appellant) and that on the 29th of January, 1996 the respondent falsely and maliciously published of and concerning him libelious material.
At the hearing of the appeal on the 17th of February, 2010 learned counsel for the appellant Mr. S. Dauda adopted his brief filed on the 18th of February, 2003, withdrew the alternative to prayer No. 2 and urged us to enter judgment for the appellant.
Mr. A.A. Airadion, learned counsel for the respondent adopted the respondent’s brief deemed duly field and served-on 8th of May, 2006 and urged us to dismiss the appeal.
Whether Regulation 55 of the Borno State Revised Local Government Staff Regulations is constitutional?
Learned counsel for the appellant argued that the provision of Regulation 55 vis-a-vis Section 6(6)(b) and Section 33(1) of the 1979 Constitution, the Regulation supra is unconstitutional. Reliance was placed on Captain E.C.C. Amada v. N.N.P.C. 2000 10 NWLR Pt. 674 P. 74; Bakare v. A.G. of the Federation 19905 NWLR Pt. 152 P. 516. He urged us to allow the appeal and set aside the judgment of the learned trial Judge.
Learned counsel for the respondent’s submissions is indeed interesting. He submitted that since Regulation 55 affected the appellant’s employment he cannot complain since the Regulation is part of the condition of service and the court has no business interfering with terms and conditions of contract as long as they are not themselves illegal. Reliance was placed on Global Cement Co. Ltd. v. Daniel 1990 4 NWLR Pt. 188 P. 752; Olaniyan v. University of Lagos 1985 2 NWLR. Pt. 9 P. 599.
Concluding he submitted that the Revised Local Government Law 1986 is a valid constitutional and existing law by virtue of Section 315 of the 1999 Constitution.
Regulation 55 of the Revised Local Government Staff Regulations 1986 provides that:
“No employee shall without the prior sanction of the Local Government threaten or begin legal proceedings for defamation relating to matters arising out of his official duties.”
It is now well settled that in interpreting the provisions of a statute it is the duty of the Judge to give words their plain meaning as understood in common language and not introduce his own words. Once the words are plain and unambiguous the judge should give effect to it. See Ahmed v. Kassim 1958 3 F.S.C. P.51; Onagoruwa v. Adeniji 1993 5 NWLR Pt. 293 P. 325; Mobil v. F:B.I.R. 1977 3 SC P.53; Tariola v. Williams 1982 7 SC P. 27.
“Sanction” in Regulation 55 means consent, permission, prior approval. That is to say:
“No employee (of the Local Government shall without the prior approval or permission, or consent) of the Local Government threaten or begin legal proceedings for defamation relating to matters arising out of his official duties.”
The clear intention of the Borno State Legislature is that, if an employee of the Local Government wants to file an action in court against the Local Government he can only do so after he obtains the consent, approval, or permission of the Local Government, and this requirement is mandatory where the Claim is for defamation relating to matters arising out of the employees duties. Intrinsic in Regulation 55 is the right of the local government to refuse to give consent to pending litigation on defamation.
“
Section 6(6)(b) of the Constitution states that:
6(6)(b) The judicial powers vested in accordance with the foregoing provisions of this section- (b)Shall extend to all matters between persons or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligation of that person.”
Section 36(1) of the Constitution states that:
“36(1) In the determination of his civil rights and obligation, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
The intendment of Section 6(6)(b) of the Constitution is to confer jurisdiction on the courts established by the Constitution and ensure unrestricted access to the courts for any persons who sues the government, or any person, or any authority. That is to say every person, government or any authority is on a level playing ground before the courts.
Section 36(1) of the Constitution ensures that any person who comes before our courts is given a fair hearing. That is a hearing in accordance with the maxim audi alteram partem and nemo judex in causa sua. See Ogundoyin v. Adeyemi 2001 13 NWLR Pt. 730 P. 403: Saleh v. Monguno 2003 1 NWLR Pt. 801 P. 221. A Judge hearing a suit should allow both parties to be heard and no Judge should preside over a matter in which he has a personal interest or involvement. These are canons of natural justice. See Regina v. Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte 2000 1 AC P. 61.
The provisions of Section 6(6)(b) and Section 36(1) of the Constitution read together confers on all persons unrestricted access to all courts established by the Constitution for the determination of any question as to his civil rights or obligations arising between him and any government within the federation or any authority or any person.
Any law that accords to the government, federal or state power to deny a party access to the court s a nullity by the provisions of Section 36(1) of the Constitution.
The Constitution is the supreme law, and any law in conflict with it is a nullity.
Regulation 55 of the Local Government Staff Regulations 1986 which states that the consent of the Local Government must be obtained before an employee can institute an action is in conflict with the provisions of Sections 6(6)(b) and 36(1) of the Constitution which guarantees unrestricted access to the court. Regulation 55 is unconstitutional. The appellant is therefore entitled to file his claim without complying with the procedure laid down by Regulation 55 of the Local Government Staff Regulations of 1986. See Bakare v. A.G. Federation 1990 5 NWLR Pt. 152 P. 516.
The learned trial Judge was in error to conclude that Regulation 55 is a pre-condition that must be complied with before the appellant as plaintiff could sue the defendant. To my mind, this finding is wrong. In the light of my conclusion, all other issues formulated by both sides are no longer relevant. If the learned trial judge found as I have found a decision on the merits would have been given.
Now, by the provisions of Section 15 of the Court of Appeal Act 1976 this court has power to make any order or deliver judgment which the trial court ought to have given. See U.B.N. Plc v. Sparkling Breweries Ltd. 1997 3 NWLR Pt. 491 P. 29; Asaboro v. Aruwayi. 1974 NMLR P. 414.
This power is for the satisfactory administration of justice at all times.
By order of the Borno State High Court made on the 30th day of July, 1996 Suits No: M/16/96 and M/84/96 were consolidated.
Originating processes to wit: Writ of Summons and statement of claim were filed in b6fff suits. Suit No. M/16/96 the appellant as plaintiff claim against the respondent/defendant in paragraph 14 of the statement of claim reads as follows:
14. WHEREOF the plaintiff prays for the following reliefs:
(a) A declaration that the-defendant published the words (letters) quoted in paragraph 7 above written by him to the chairman Local Government Service Commission Borno State, and copied to the Secretary to the Borno State Government Reference No. KLG/ADM/S/T/1/1/1 dated 29th January, 1996 is libellous of the plaintiff.
(b) The sum of Five Million (N5,000,000.00) damages for aforesaid libel published by defendant, concerning the plaintiff.
(c) The costs of the suit.
The defendant filed an 11 paragraphs statement of defence dated (8/10/97). The Record of Appeal is silent on when the process was filed.
A reply to statement of defence was filed. It is dated the 30th of July, 1996 (it is not stated when it was filed). At trial which commenced on the 7th day of October, 1998, six witnesses, the plaintiff inclusive testified for and on behalf of the plaintiff.
The defendant and three witnesses testified for and on behalf of the defendant. Five documents were admitted as Exhibits.
Extracts from the statement of claim reads as follows:
1. The plaintiff at the material time of this suit is a civil servant, a staff of the Borno State Local Government Service Commission.
2. The plaintiff avers that at the material time of this suit the defendant is the chairman of the caretaker Local Government Council of Konduga Local Government Area af Borno State.
3. The plaintiff avers that an or about the 10th day of January, 1996, he was transferred from Kwaya-Kusar Local Government Council as Acting Director of Personal Management to Konduga Local Governent Council in the same capacity, by his employer the Local Government Service Commission, Borno State.
4. The plaintiff avers that his transfer was as a result of a normal re-shufflement. The plaintiff will at the trial day rely on the letter of transfer Ref. No. BOS/LGSC/S/POS/4/335 dated 10/1/96.
5. The plaintiff states that he immediately reported to Konduga his new station where the defendant is the caretaker chairman of the Council.
6. The plaintiff states further that, without any Misunderstanding with the defendant, the defendant on the 9th day of January, 1996 wrote to the chairman Local Government Service Commission Borno State, a letter Ref. No. KLG/ADM/S/67/T.1/22 rejecting the pasting of the plaintiff as Acting Director of Personnel Management of the Council. The plaintiff pleads the said letter.
7. The plaintiff avers that on or about the 29th day of January, 1996, the defendant falsely and maliciously published of and concerning the plaintiff a letter Ref.-No. KLG/ADM/S/I/T/1/1 dated 29th January, 1996 containing the libel herein set out…
Letter Ref. No. KLG/ADM/S/I/T/1/1 dated 29th January, 1996 was written by the defendant, as the chairman Konduga Local Government, to the chairman Local Government Service Commission, Borno State Maiduguri. It was admitted in evidence as Exhibit “B”. The plaintiff avers in paragraph 8 of his statement of claim that the words in Exhibit ‘B’ in their natural and ordinary meaning are highly defamatory of the plaintiff’s person, character, and experience as a civil servant.
Exhibit ‘B’ is titled:
RE:THE POSTING OF ALHAJI LABBA ASHEIK TO KONDUGA LOCAL GOVERNMENT AS DIRECTOR OF PERSONNEL MANAGEMENT:
ISSUES FOR CONSIDERATION PAST AND PRESENT
I would like to state from the onset and in categoral terms, that at a personal level, I harbour no grudges or hard feelings against this officer. Therefore, whatever I say in this letter is to be assessed and understood at the official level.
In my reaction to the posting of the officer in question, I wish to draw the attention of the Commission to the following issues, for its objective consideration:
1. Prior to his posting to Konduga Local Government, I was entitled to be consulted as required by the relevant section of the Local Government Edict, however I was not;
2. The Commission must be aware, that between the early 1980’s, and the present, this officer was reposted.10 times to different local governments in quick successions and each in a manner that could not be regarded as normal. Wherever he went, he was either out rightly rejected or had to face the same fate after a short while. This had happened to him in Fune, Geidam, Damaturu, Gwoza, Biu, Bama, (2 times) Mpnguno, Magumeri and Kwaya Kusar Local Governments. His series of rejections was either prompted by his well known reputation as an impossible man to work with or by the persistent official feuds and scandals which he invariably seems to enjoy precipitating. So much so that the civilian administration of Alhaji Maina Ma’aji Lawan considered that, pulling him out of the local government service was the only practical solution to his persistent case. He was reposted to the State Sanitation Board, a posting which he not only rejected, but also went to court to challenge.
For over two years, he engaged the State Government in a legal battle. Of course, he lost the case, both in the lower court and in the Court of Appeal. The matter still appears to be pending somewhere, and the State Ministry of Justice is fully aware of the position of the case. Within the two year legal onslaught he waged against the State, on account of rejection of redeployment, he did not report for official duties.
However, he was later reintegrated into the Local Government Service and also reinstated as Ag. D.P.M., but of course, not on the orders of the courts. He was then posted to Bama, his home area, but was expectedly rejected by the present Council. From here, as the Commission is fully aware, he was reposted to Kwaya Kusar local government which tolerated him for sometime, but later found that impossible and the Council unanimously petitioned for his reposting. It was from there that he was reposted to my council but, as i earlier pointed out without due consultation with me in my official capacity as head of council and as in accordance with the dictates of the law.
3. This brings us to the present. I have the displeasure to report that even before I fully accept his posting and even before he gets formally introduced as the new Ad. D.P.M. of Konduga Local Government, he could not resist showing his true colours in his usual characteristics. On Friday the 26th of January, 1996 he suddenly appeared in the offices of the Savannah Bank (our bankers) without authority and claimed to be the sole signatory of the local government and, therefore, the only official with the authority to sign and cash cheques of the council. Earlier on, he along with his predecessor, had illegally written a letter, without the councils authority introducing Alhaji Abba Asheik as one of the only two signatories of the local government (the treasurer being the other), while also without authority invalidating the other signatures of the deputies which we have for long submitted to the bank as a standby. His shameful conduct and ungentlemanly approach created such a great confusion” and chaos at the bank that prompted’ calling in the bank’s security men. This is a man who is even yet to be fully known as the new Ag. D.P.M. and signatory ordering that not a single kobo should be withdrawn from the account of the local government that day. Our cheques for staff salaries were therefore turned down. I had to be called in later to save the situation from further deteriorating. This incident however, became a source of great embarrassment not only to the local government but to the state government as well.
4. By this embarrassing incident, which could well have been avoided, it appears quite clear and in earnest too that the leopard has not changed its spots. Abba Asheik as usual has not come to work but to create an atmosphere of dissatisfaction and disharmon in spite of his sensitive official position. This is a man well known to me spanning a period of many years but it has never been a pleasant association. We went to court three times over union activity disagreements. If the Commission had consulted me over his posting to my area I would have intimated them with the fact that Abba and I cannot officially co-exist. We cannot understandably relate to one another, consequent upon our past bitter official disagreements and our generally divergent ways of looking at things. I thought he had changed; I thought that at least I can tolerate him but this embarrassing melodrama which he stage managed at the bank had clearly shown that if his posting to my council is to be upheld then certainly the discharge of the responsibilities of the local government will suffer serious set backs.
I will find it extremely difficult to end this letter without sounding my strong suspicion that this man was deliberately posted to me to sabotage my good efforts. I therefore demand for a rescind of his posting in the interest of public good.
In response to Exhibit “B” above the defendant pleads that the contents supra are true in substance and in fact and in so far as the words consist of expressions of opinion they are fair comment made in good faith and without malice upon the said facts which are a matter of public interest.
In his address learned counsel for the defendant observed that the defendant raised fair comment and justification.
On fair comment learned counsel submitted that the contents of Exhibit B are true and fair; Reference was made to Omogoye v. African News Paper Nig. Ltd. Nig. Law of Libel and the Press by Chief Gani Fawehinmi page. C928 contending that the defence of fair comment avails the defendant.
On defence of justification, he observed that to succeed it is not necessary for the defendant to prove the truth of each of every allegation comprising the libel, contending that if he can only succeed in one it will suffice. Reference was made to Registered Trustees of Amorc v. Awoniyi 1994 7 NWLR Pt. 355 P. 184. He urged this court to dismiss the suit as being frivolous.
In his submissions learned counsel for the plaintiff observed that Exhibit B was written by the defendant and published by the defendant to a third party. Reference was made to the evidence of PW1, PW2, PW3 and PW6.
He submitted that the contents of Exhibit B are defamatory of the plaintiff. He observed that the defence of qualified privilege was not pleaded and so the said defence is not available to the defendant. Reliance was placed on Affobiche v. Ogoja Local Government 2001 16 NWLR Pt. 739 P. 458.
He further observed that the evidence of PW1, PW2, PW3 and PW6 clearly proved express malice.
On fair comment, learned counsel argued that the defendant failed to prove the facts published to be fair comment as required by law.
On justification learned counsel submitted that the defendant has a duty to prove all material facts complained of observing no attempt was made to prove that the defamatory interpretations in the said publications are true. Reference was made to Gatley on Libel and Slander paragraph 351 page 153. He urged the court to grant the plaintiff’s prayer.
To succeed in an action, for libel the plaintiff must prove four ingredients:
(a) That the words were published;
(b) That the words are defamatory of the plaintiff either in their natural meaning or by reason of an innuendo;
(c) That the words referred to the plaintiff; and
(d) That the words were published to a third person.
Failure to establish anyone of the four ingredients is fatal to the plaintiff’s case. See Edebiri v. N.B.C. Suit No. B/156/74 decided on 28/6/78 page PR1 Nig. Law of libel and the Press by G. Fawehinmi.
It is the duty of the Judge to decide whether the words published by the defendant are libelous of the plaintiff, or capable of conveying a libelous meaning and whether the words convey a defamatory meaning is a question of law. Whether the words are in their natural and ordinary meaning defamatory is a question to be answered by the Judge. The test to be applied in determining whether or not the words complained of are defamatory is whether a reasonable man after reading the contents of Exhibit B would conclude that it is libelous. See Dumbo v. Idugboe 1983 1 SCNLR P. 29; Okafor v. Ikeanyi 1979 3-4 SC P. 99.
In this case the defendant relies on the defence of fair comment and justification. Where the defence of fair comment is relied on the inference of malice is rebutted. The onus is now on the plaintiff to prove malice against the defendant. This can only be discharged by the plaintiff filing a reply alleging express malice and giving particulars from which malice can be inferred.
Particulars of malice in the plaintiff’s reply to statement of defence dated 30/7/96 reads as follows:.
(i) The letter complained of dated 29th day of January, 1996 was motivated by malice as the defamatory statements made by the defendant in the said letter were false and untrue.
(ii) When the plaintiff was transferred from Kwaya-Kusar Local Government to Konduga Local Government, and on resumption to duty the defendant motivated by malice directed that the plaintiff’s office be locked with a new lock preventing the plaintiff from entering his office to perform his official duties.
(iii) After the plaintiff’s resumption as stated above, and after the handing-over and taking-over formalities were completed between the plaintiff and-his predecessor, the defendant accentuated by malice went to the bankers of Konduga Local Government Council to wit: Savannah Bank and withdrew the plaintiff’s signature as signatory of the Council’s account and replace his signature with an unauthorized signature.
(iv) Motivated by malice, the defendant also impounded the official vehicle attached to the plaintiff’s office without any reason or explanation and thereby prevented the plaintiff from using the said vehicle.
(v) Accentuated by malice, the defendant directed all the staff of the Local Government not to deal with the plaintiff officially and all correspondents should not be sent to the plaintiff as it is the normal practice and procedure.
If express malice is proved the defence of fair comment no longer avails, the defendant Malice is a desire to hurt or harm. The plaintiff must establish that the defendant was actuated by express malice.
In Exhibit B, the letter the plaintiff says is defamatory of him, the contents which are of importance are:
“1. Plaintiff had been posted 10 times to different Local Governments in quick successions and in each in a manner that could not be regarded as normal. Wherever he went he was either out right rejected or had to face the same fate after a short while, this happened in Fune, Geidam, Damaturu, Gwoza, Biu, Bama (2 times) Monguno, Magumeri and Kwaya-Kusar Local Governments.
2. Plaintiff was posted to State Sanitation Board. He rejected it; and contested it in court in a Suit which lasted two years.
3. Plaintiff on resumption of duty at Konduga Local Government went to Savannah Bank and made himself’ sole signatory of the Local Government’s account; without the council’s authority. Consequently, staff salaries etc. were delayed.
The defendant called six witnesses, including himself. PW1 agreed with 1 and 2 above. PW2 testified that Exhibit B is defamatory of the character of the defendant but did not say how. PW3, PW4 and PW5 evidence had no bearing on the live issues.
As for PW6, the defendant, he testified that as a result of Exhibit B he was retired from service. That to my mind confirms the contents of Exhibit B to be true. If the defendant could sue the State government (a fact conceded by PW1 to be true), why may I ask did he not sue the state government to contest his retirement from service. The answer is obvious. His retirement was very much in order. On the other hand the four witnesses who testified for the defendant, the defendant being the third were truthful since their testimony is in line with the contents of Exhibit B.
It must be established that Exhibit B was written by the defendant actuated by express malice. Since the contents of Exhibit B are true, there was no malice. Furthermore, the particulars on malice are on acts by the defendant that do not relate to the contents of Exhibit B.
The defendant was the chairman of Konduga Local Government. He was the plaintiff’s boss. When the plaintiff was posted to the defendant’s Local Government as an employee, the defendant wrote. Exhibit B to the regulatory body of all the Local Governments in Borno State to show his grave reservations on the posting of the plaintiff to tile Konduga Local Government.
To my mind the defendant by Exhibit B highlights the behaviour and shortcomings of the plaintiff which are true. This is a honest opinion made in good faith. Exhibit B is not libellous in the circumstances.
Since Exhibit B has been found not to be libellous of the plaintiff it becomes unnecessary for the court to deal with submissions on damages.
The plaintiff’s claims fail and are hereby dismissed.
Suit No. M/84/96, Paragraph 14 of the statement of claim reads thus:
14. WHEREOF the plaintiff prays for the following reliefs:
(d) A declaration that the defendant published the wards quoted in paragraph 7 above written by him to the chairman Local Government Service Commission Borno State and copied to the Secretary to the Borno State Government Reference No. KLG/ADM/S/1/T.1/1/7 dated 7th February, 1996 is libelous of the plaintiff.
(e) The sum of Five Million Naira (N5,000,000.00) damages for the aforesaid libel published by defendant concerning the plaintiff.
(f) The costs of the suit.
In this suit the complaint is that Exhibit C Ref. No. KLG/ADM/S/1/T.1/1/7 dated 7th February, 1996 is libellous of the plaintiff. I must observe that the trial in the court below was on Exhibits B and C. Submissions of Counsel were also on both Exhibits, whether they are defamatory of the plaintiff. The plaintiff’s particular on malice in this suit is on all fours with the previous suit except that paragraph”V” is excluded in this suit, and so I shall adopt counsel submissions and findings on the witnesses in the previous suit in this suit.
Now, Exhibit C was written by the defendant to the chairman Local Government Service Commission and it is titled:
POSTING OF ALHAJ1 ABBA ASHEIKH TO KONDUGA LOCAL GOVERNMENT AS DIRECTOR OF PERSONNEL MANAGEMENT
Your letter No. BOS/LGSC/D/POS/5/337 dated 1st February, 1996 on the above subject-matter refers. The Council writes to express its total disappointment on your biased position in this matter. As arbiters in such official matters, we find your attitude most unfortunate and regrettable. It now appears very clear, that the Commission is merely using the case of Abba Asheikh as a smoke screen to pull down the council by sabotaging our determined efforts to make life more meaningful for the teeming populace. Similar attempts in the recent past have been made by the Commission in dealing with three separate cases of disciplinary measures brought against some recalcitrant staff of the Council.
2. We wish to observe very seriously here that if the Commission is so keen and sincere about ensuing good governance, as it so much claimed in its letter under reference, why should it then paradoxically post to us someone with whom it is impossible to co-exist peacefully; someone who is unfriendly and has no slightest regard for a constituted authority; someone whose official attitude towards the Council even at this stage is characterized by non cooperation and insubordination. There is no basis whatsoever for the Commission to feign ignorance of Abba Asheikh’s attitude. His records speak for themselves. This is a plot deliberately orchestrated by the Commission to derail our programme. And it has succeeded for now since the activities of the Council have already been brought to a standstill. The Commission has been scheming this plot for long. Its inability to squarely or decisively address the reported and established cases of gross indiscipline and faked certificate involving some staff of the Council, are clear examples.
3. We also wish to comment on paragraph 2 of your letter (under reference) which states that since the enactment of the 1976 Edict, the Commission has been posting staff to Local Governments without consultation. This is a very serious oversight on the part of the Commission and that does not mean that, we should not complain when there is genuine cause to do so.
4. Furthermore, we wish to draw the attention of the Commission to the fact that the issue at stake in this matter is not that the Council does not recognize the office of the D.P.M. or is prepared to do without a D.P.M. The bone of contention is simply posting Alhaji Abba Asheikh, a man who cannot work with anybody, in any organization and in any society. In other words, anybody is welcome besides Abba Asheikh, and the due process of the law should be followed as provided under Section 81(2) and (3) of the Local Government Edict.
5. The council wishes to reiterate, once more, that it cannot work with Abba Asheikh, simply because we cannot tolerate his hostile, incompatible and insubordinate attitude towards the Council. We need his opposite to be able to work and make positive contributions period.
6. Finally, it is quite unfortunate and indeed regrettable, that the Commission could go out of its way to take sides, with Abba Sheikh regardless of the gravity of the issues raised against posting him to us. The Commission has apparently drawn a battle line and is fully resolved to impose this officer on the Council, come what may, infact, the Commission has already embarked on a campaign of blackmail, intimidation and coercion to force the staff of the Council to pitch tent with Abba Asheikh. As the situation stands now, the Council’s staff live in fear of being victimized by the Commission a result of the threat contained in your letter referred to above.
7. As far as the Council is concerned, this letter closes any further correspondence between it and the Commission on this matter, as we have made our case explicitly dear.
8. This letter is copied to the Secretary to the State Government for his information.
Sgd.
(ALHAJI KAKA MALLAM YALE),
CHAIRMAN, KONDUGA LOCAL GOVERNMENT
Once again I must observe that the defendant is the chairman of Konduga Local Government. The plaintiff is an employee. The defendant is of the view that the plaintiff is a difficult person to work with, hostile, incompatible and insubordinate to the council.
The defendant expresses his annoyance at the posting of the plaintiff to his Local Government.
To my mind, the contents of Exhibit C are not libelous of the plaintiff. The plaintiff is portrayed as an impossible person to work with and justifiably so. The contents of Exhibit C are an honest opinion made in good faith. The plaintiff’s claims fail and are hereby dismissed.
For the avoidance of doubt regulation 55 of the Local Government Staff Regulations 1986 of Borno State is unconstitutional, it being in conflict with the provisions of Sections 6(6)(b) and 36(1) of the Constitution. The appellant’s claims in Suits Nos. M/16/96 and M/86/96 are dismissed as the contents of Exhibits B and C are not defamatory of the appellant.
There shall be no order on costs.
UZO NDUKWE-ANYANWU, J.C.A: I had the privilege of reading in draft form the judgment just delivered by my learned brother Rhodes-Vivour, J.C.A.
I agree with his reasoning and conclusions reached. This appeal is therefore dismissed.
ABUBAKAR DATTI YAHAYA, J.C.A: I have had the privilege of reading in advance, a copy of the judgment just delivered by my learned brother BODE RHODES-VIVOUR J.C.A, I agree with the reasoning and conclusions reached therein.
On Regulation 55 of the Revised Local Government Staff Regulations 1986, a casual glance will tend to equate it with pre-action notice. Pre-action notice is a procedural step which ought to be taken before an action is filed in court. It is a condition precedent. It does not therefore impede the constitutional right of access to courts. See AMADI VS NNPC (2000) 10 NWLR (Pt 674) 76 and NNPC VS TIJANI (2006) 17 NWLR (Pt.1007) 29.
Pre-action notice does not remove the jurisdictional powers of courts to adjudicate UMOKORO VS NPA (1997) 4 NWLR (Pt. 502) 656 at 667.
But Regulation 55 has the explosive potention of ousting the jurisdiction of courts to hear litigants as the trial Judge had shown. This is because a Local Government may refuse to grant an applicant, the consent to begin legal proceedings for defamation, relating to matters arising out of his official duties. And once that consent is refused, he would not have any audience in any court of law. This would do violence to the provisions of sections 6(6)(b) and 36 (1) of the Constitution of the Federal Republic of Nigeria 1999. To that extent, the provision is unconstitutional, null and void and of no effect.
On the merit of the appeal, I agree that Exhibit C is not libellous of the plaintiff at all and the claim fail. I too dismiss it.
Appearances
Mr. S. Dauda Esq.,For Appellant
AND
Mr. A.A. Airadion Esq.,For Respondent
