ALHAJI RASHEED BAYO SALAWU V. CHIEF MOSES A. MAKINDE & ANOR(2002)

ALHAJI RASHEED BAYO SALAWU V. CHIEF MOSES A. MAKINDE & ANOR

(2002)LCN/1276(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 16th day of July, 2002

CA/I/228/98

 

JUSTICES

SUNDAY AKINOLA AKINTAN   Justice of The Court of Appeal of Nigeria

MORONKEJI OMOTAYO ONALAJA   Justice of The Court of Appeal of Nigeria

OLUFUNLOLA OYELOLA ADEKEYE   Justice of The Court of Appeal of Nigeria

Between

 

ALHAJI RASHEED BAYO SALAWU Appellant(s)

AND

  1. CHIEF MOSES A. MAKINDE
    2. NAVY CAPTAIN E. O. MAKINDE (RTD) Respondent(s)

 

  1. O. ADEKEYE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice Oyo State – Oyo Judicial Division – delivered on the 27th of January 1997. By the endorsement on the Writ of Summons – though superseded by paragraph 26 of the statement of defence the plaintiffs, Chief Moses Makinde and Navy Captain Makinde (rtd) claimed against the defendant, Alhaji Rashidi Bayo Salawu two relief’s namely:-
    a) The sum of N1, 000, 000 (One Million Naira) being damages suffered by the plaintiffs as a result, of false and malicious communications by the defendant in writing at diverse dates in 1994 to Chairman National Board for Community Banks Abuja and others alleging inter alia that the plaintiffs committed Arson to wit setting fire on the 1st plaintiff’s house at Oyo, in which one John Udoh died in the inferno which he knew to be at false criminal accusation attracting severe penal consequences.
    b) An order of perpetual injunction restraining the defendant, his servants, agents or privies from circulating such further allegations against the plaintiffs.
    Parties filed and exchanged their pleadings. At the commencement of trial – the plaintiff’s case was premised on their statement of claim and evidence of four witnesses and the defendant’s case on his statement of defence and further additional statement of defence and the evidence of three witnesses. It was the case of the plaintiffs that the defendant, and the 1st plaintiff were promoters of the Akesan Community Bank – Oyo, and at various times both plaintiffs and defendant served on the Board of the bank. On the 23rd of March 1994 the defendant wrote to the Chairman National Board for Community Banks Abuja and the Inspector-General of Police, a letter captioned “Re Threat to the Safety and Stability of Community Banking System”. He alleged in the said letter that the plaintiffs colluded with others to set the house of the 1st plaintiff on fire for the purpose of putting up an Insurance claim. One John Udoh – a tenant of the 1st plaintiff and an accountant with the Community Bank died in the inferno. Consequent to the copy of the letter forwarded to the Inspector-General of Police – investigation was conducted into the criminal financial malpractices and abuse of office leveled against the plaintiffs. Both plaintiffs claimed to have experienced unnecessary embarrassment, emotional disturbance, and disruption in their business and social activities. Unless the defendant is restrained he would continue to publish the defamatory matters as he is removed for writing such implicating letters under the guise of being an anti-corruption crusader.
    The defendant – who claimed to be a community leader in Oyo town, a public letter writer and a member of the Civil Liberties Organisation complained that he was removed as a director of the Akesan Community Bank without the approval of the Annual General Meeting of the shareholders of the bank, but upon the recommendation of the legal Adviser-Prince Dosu Gbadegesin presented to the Board of Directors following a petition claimed to have been received by the 2nd plaintiff. He admitted writing a letter to the chairman of the National Board for Community Banks Abuja and the Inspector-General on 23/3/94 with the letter headed paper of the Akesan Community Bank Oyo, which he signed as a director. He was compelled to write the letter following a report made to the police by the plaintiffs that they suspected him of causing the fire which destroyed the 1st plaintiff’s house. He denied taking any steps that would injure the credit and reputation of the plaintiff’s.
    In his considered judgment the learned trial judge gave judgment to the plaintiffs as per their claim. Being aggrieved by the said judgment the defendant filed an appeal against same to this court. The defendant shall henceforth be referred to as the appellant, and the plaintiffs as the respondents. In the notice of appeal, two grounds of appeal were filed. Parties settled records and briefs were filed and exchanged. In the appellant’s brief only two issues were raised for determination as follows:-
    1) Whether on the pleadings and the evidence before the trial court, the plaintiffs were rightly or properly given judgment on their clam against the defendant.”
    2) Whether the trial court gave the defendant a fair hearing and if not whether such denial encroaches the provisions of section 33 of the 1979 Constitution of the Federal Republic of Nigeria (as amended).
    The issues are related to the grounds of appealed filed.
    The respondents adopted the issues formulated in the appellant’s brief. I have to remark and also to remind counsel that the essence of filing briefs and formulating issues for determination.
    Brief at an appellate court stand in the same place as pleadings at the trial court. They are meant to give an insight into the case of the parties while issues for determination are to direct the court in the consideration of the case of the parties. A respondent adopting the appellant’s issue for determination cannot help the respondent’s case when particularly in this case – they are not presenting the same case. Moreover the courts have regarded and will continue to regard such practice as a demonstration of intellectual laziness on the part of a counsel. Whatever the shortcomings in a brief – the appeal will still be heard on its merit.
    OBIORA V. OSELE 1989 1 NWLR Pt 97 pg 279
    ENSI V. IDIKA 1987 4 NWLR pt 66 pg 503
    KALU V. ODILI 1992 5 NWLR pt 240 pg 130
    UDENE V. UGWU 1997 3 NWLR pt 491 pg 57
    TITILAYO V. OLUPO 1991 7 NWLR Pt 205
    OYEBADE V. AJAYI 1993 1 NWLR Pt 269 pg 313
    ISSUE NO I
    Whether on the pleadings and the evidence before the trial court, the plaintiffs were rightly or properly given judgment on their claim against the defendant.
    By this issue the court is expected to determine whether the respondents should succeed on the evidence adduced by them or the court was right to have granted their claims based on such evidence.
    In support of this issue the appellants argued that both parties filed pleadings and called witnesses – though the learned trial judge did not allow the appellant to be heard on his amended statement of clam. By the provisions of section 135 and 136 of the Evidence Act Cap 112 Laws of Federation of Nigeria 1990 – as amended by Decree No 61 of 1991 – the burden of proof in this case is on the respondents. This burden was never discharged by the respondents as they did not establish that the contents of Exhibits A1-A6, B1-B2 were defamatory of them. In paragraph 21 of their statement of claim – the respondent averted that the appellant accused the Alaafin of Oyo of being responsible for the inferno which engulfed the 1st respondent’s house. The respondents did not plead or prove malice against the appellant. By the evidence of the appellant the allegedly offensive publication could not have the meaning imprinted to it by the respondents vide page 31 lines 24-40. The appellant wrote the letters Exhibits A1-A6, B1-B2 in his capacity as a director, of the Akesan Community Bank Oyo to the Chairman of National Board for Community Bank, and the Inspector General of Police – who have corresponding interests in receiving them – while the appellant had a duty to make the publication.
    The appellant marked the publication “Confidential”. The respondents did not challenge the letters. The judgment of the trial court was based on inference derived from inconclusive and ambiguous facts. For instance the court wrongly inferred that the appellant admitted the making and publishing of the defamatory statement-and the judgment of the court was based on this vide page 38 lines; 38-43 and page 39 lines 1-3. The appellant’s pleading or evidence on record did not suggest any admission of making and Publishing the defamatory material. The learned trial judge cannot substitute her own views as evidence. The appellant cited the cases of-
    VATT V. LONGSDON 1930 1 KB 130
    ADAM V. WARD 1917 AC 309
    CHAIRMAN V. LORD ELLELMERE 1932 2 KB 431
    DE RUSE V. MCCARTHY (1942) 1 ALL ER 19, BLACKBURN V. LORD (1983) 2
    ALL ER 311 in support of his submission.
    As a reply the plaintiffs submitted that the appellant admitted under cross-examination that he wrote Exhibits A1-A6 particularly Exhibit A5 containing the offending publication. PW2 – a witness from the National Board for Community Banks confirmed the receipt of Exhibits A1-A6 on the 6th of April 1994 – which established publication of a libelous matter. The contents of a petition he wrote to the Community Bank were that the appellant alleged that the respondents arranged to burn down their house so as to put up insurance claims. Same was confirmed by the content of Exhibit A-This the learned trial judge relied upon to find for the plaintiffs and to believe that the respondents were perpetrators of the crime in conspiracy with some Dahomeans. The appellant confirmed under cross-examination that all the information he supplied in Exhibits A1-A6 were from his personal knowledge. The learned trial judge dismissed the defence of the appellant in the face of overwhelming evidence. None of the legal defence avail him. The appellant did not prove beyond reasonable doubt that the appellants committed the crime alleged in Exhibit A5. The appellant supplied the reason why he wrote Exhibits A1-A6. The appellant admitted receiving Exhibits F and F2 letter dated 16th March 1995 from the respondents Exhibits F and F2 letter dated 16th March 1995 from the respondents counsel – but the appellant had not retracted the libel or apologized to the respondents – even till the time of judgment in this case.
    The appellant claimed that he had legal jurisdiction and privilege to write that letter and publish same “confidentially to the addresses.
    The court found that Exhibit A was not restricted to the Police alone but also to the National Board for Community Bank, a non-police agency – and that this inferred malice. The appellant also maintained that Exhibit A5 was a privileged publication. In that wise it must be established that the person who made the publication must have an interest and which body must investigate but same was published to a body that had no corresponding duty of interest to receive it. The respondents urged that the issue be resolved in favour of the respondent. References was made by the respondent to the case a of ADAM V. WARD 1917 AC 309, WATT V. LONGSDON 1930 1 KB DE BUSE V. MCCARTHY, 1942 1 KB 19.
    What is being challenged is the evaluation of evidence, findings of fact and conclusion of the trial court in holding that the writing and publication of Exhibits A1-A6 particularly Exhibit A5, by the appellant was libelous of the respondents. The appellant’s position is that the publication complained of is not defamatory and that he wrote the letters to the chairman of the National Board for Community Banks Abuja – and the Inspector – General of Police who have a corresponding interest in receiving the letter. The appellant also claimed an interest to write the letters. The correspondence to the police was confidential. The issue involved here is simple and straight forward as the appellant did not deny writing Exhibits A1-A5 particularly Exhibit A5 – but that there was no publication to other parties – and he had an established interest in writing the letters as a Director of Akesan Community Bank.
    Surprisingly regardless of the fact that the appellant argued in his brief that he wrote the letters though they were not meant to be defamatory of the respondents under the same Issue No I he blamed the trial court for basing the judgment on inference derived from inconclusive or ambiguous facts and not positive evidence. The appellant said that the trial court wrongly inferred that the admitted making and publishing the allegedly defamatory statement and that was the basis for the courts judgment in favour of the respondent’s page 38 lines 38-43 of the record and page 39 lines 1-3. This court shall examine this relevant position of the judgment of the learned trial judgment of the learned trial judge-
    Page 38 line 38 – 43 reads:-
    “At the outset, I think it is desirable to observe that the defendant in his pleadings admitted making the statement complained of. He also admitted publishing the same to the chairman, National Board for Community Banks, Abuja and to the Inspector-General of Police. That these two authorities received the publication is evident from the series of investigations conducted by them.”
    Page 39 lines 1-3
    “On the principle that what is admitted need not be proved, I find as a fact that the defendant made the statement complained of. I also find as a fact that he published the statement”.
    I shall also look at the pleadings complained of. Of particular interest are paragraphs 7 and 8 of the statement of defence.
    Paragraph 7
    “That it is a fact that I wrote a letter of information to the Inspector-General of Police and the Chairman National Board for Community Banks Abuja dated 23rd March 1994 written with letter headed papers of the Akesan Community Bank Limited Oyo and signed in my capacity as a director and sent to addresses under “confidential”.
    Paragraph 8
    “That at the time I wrote the Confidential letter of 23rd March 1994 the annual General Meeting of the Shareholders who returned me as a director did not hold until 26th March 1994 thereby made it clear that I did not resort to writing incriminating letters accusing the plaintiffs of having committed offences of arson and murder after receiving the letter relieving me of my directorship of the bank”.
    Paragraph 8 of the Additional Statement of defence at page 13 of the record reads:-
    “That it is made clear that the Police has never investigated the information letter dater 23rd March 1994 which I strongly believe will help the police to unreveal the circumstances surrounding the case of arson and murder and get those who are concerned arrested and brought to book hence all the information I wrote in the letter dated 23rd March 1994 if investigated shall be found to be accurate and correct”.
    On page 30 of the record is the evidence of the appellant marked by the trial court as DW3 as from line 10. At page 31 lines 24-34 which reads:-
    “After much harassment by frequent arrests I had to write a petition Exhibit A to the National Board for Community Banks to highlight what was going on in the bank as an insider. I contributed to the discussion of the 1st and 2nd plaintiffs over the Insurance of their property. In my letter Exhibit A I did not say that they set fire to their own houses in order that they may make Insurance Claims”.
    I agree with the findings of the learned trial judge that the appellant admitted writing A1-A6 – particularly at page 32 lines 3-4 the appellant disclosed that he wrote from his personal knowledge. In lines 8-9 under cross-examination the appellant mentioned that PW2 received Exhibits A and B. PW2an administrative officer from Community Bank Abuja – Mr. Martin Sunday Bello who confirmed that all the letters Exhibits A and B were received by the National Board for Community Banks Abuja – and he tendered these letters as Exhibits A and B during the trial of this case.
    The evidence of arrests and Police investigation confirmed that the copies sent to the police were received by them. There was evidence that the police investigated the respondents for setting for to the 1st respondent’s building in Oyo for the purpose of claiming from Insurance Company. The respondents were cleared of the allegation. The appellant similarly gave evidence of his arrests and detention by the police. The reasons he gave for writing Exhibits A1-A6 and B show that he claimed the defence of, privilege. He gave evidence that the letter to the Inspector-General was marked “Confidential” while he wrote to the National Board for Community Bank as a director of the Akesan Community Bank Oyo. I am repeating here and confirming that the learned trial judge was right in her conclusion.
    A letter Exhibit F was written by the respondent’s counsel to the appellant demanding for a letter of apology and a sum of N50, 000 for the libelous publication. The appellant did not respond to the letter.
    At page 16 lines 18-26 the 1st respondent gave evidence of police harassment and arrest – they were left off police hook after the petition of the appellant against the two respondents were investigated. This was by the police who investigated the allegation against the respondents at the instance of the appellant at page 18 lines 21-31. The appellant denied admitting the libel regardless of the relevant paragraphs of his statement of defence.
    By virtue of sections 19 and 20 of the Evidence Act Cap 112 Laws of the Federation 1990 “an admission is a statement, oral or documentary which suggests any inference as to any fact in issue or relevant fact and which is made by any of the persons and in the circumstances hereinafter mentioned”.
    Section 20(1)
    “Statements made by a party to the proceedings of by an agent to any such party whom the court regards in the circumstances of the case as expressly or impliedly authorised by him to make them are admissions.”
    It is pertinent to understand the meaning of defamation before considering whether the words complained of are defamatory of the plaintiff.
    “Defamation is a statement which tends to injure or lower the reputation of a person to whom it refers in the estimation or assessment of ordinary and right thinking members of the society and thereby expose such person to hatred, ridicule and contempt and it does not matter whether or not such statement is believed by those to whom it was published.”
    Exhibits A1-A6 the words complained of accused the respondents of financial malpractices and improprieties, and also that the respondents deliberately set the 1st plaintiff’s building on fire so as to claim from the Insurance Company. There was actually and in reality a fire accident at the 1st respondent’s house in which an accountant with the Akesan Community Bank Oyo lost his life.
    The appellant was at hand to render assistance at the house of the 1st respondent after the incident.
    In determining whether certain words are defamatory – the duty of the trial court is to apply the reasonableness test that is, whether under the circumstances in which the words complained of were published, reasonable men or reasonable persons of ordinary intelligence to whom the publication was made are likely to understand the words complained of in a libelous sense:
    DINA V. NEW NIGERIA NEWSPAPERS LTD 1096 2 NWLR Pt 22 353
    It is the duty of the trial court to decide whether words complained of:-
    a) Refer to the plaintiffs and
    b) are capable of a defamatory meaning in their natural and ordinary meanings or any of the meanings alleged to arise from their ordinary meaning or as ascribed to them in the innuendo pleaded.
    SKETCH V. AJAGBEMOKEFIN (1989) 1 NWLR Pt 100 pg 678.
    The petition written by the appellant did not give room for any complication in the interpretation of the defamatory words as the imputation of crime in Exhibit A5 refer directly to the, respondents, while the trial court was not in error to hold that they were defamatory. S.S.C. LTD. V. B.N.C. LTD 2001 14 NWLR pt 734 pg 597 DUMBO V. IDUGBOE 1983 1 SCNLR 29 DINA V. NEW NIGERIAN NEWSPAPER LTD 1096 2 NWLR Pt 22 pg 353. The material part of the cause of action in libel is not the writing but the publication of the libel that is, the act of publishing the libelous matter which constitutes the cause of action. NSIRIM V. NSIRIM 1990 3 NWLR Pt 138 pg 285.

    Publication in libel matters means the making known of the defamatory matter to some persons other than the persons to whom it is written.
    In this appeal there was publication to the Chairman Board of Community Banks and those in the Police department connected with investigation into the complain it in the petition. The appellant claimed here that though he wrote the petition and forwarded to the National Board for Community Banks – he claimed them as privilege as, he marked the letters confidential and he wrote as a director of a Community Bank and he used the bank’s letter headed paper. Where in an action for defamation the defendant raises a defence of privilege – he should as a matter of pleadings aver the facts on which the defence is based. If it is clear on the face of the statement of claim that the occasion was absolutely privilege, it is sufficient to plead that the statement of claim discloses no cause of action. But otherwise the defendant must plead the facts on which he relies as giving rise to the privileged, whether absolute or qualified, as cross-examined the plaintiff’s witnesses with a view to a submission that the occasion was privileged. In other words it is not sufficient to merely aver that the defendant pleads the defence of qualified privilege or to aver that the publication was made on a privilege occasion.
    OFFOBOCHE V. OGOJA L.G. 2002 16 NWLR pt 739 pg 458.

    The defence of qualified privilege is founded upon principle that the public convenience is to be preferred to private interests and that communication which the interest, of society requires to be unfettered may freely be made by persons in actual honesty without actual malice not withstanding that they involve relevant comments libelous of individuals. If the defendant is however malicious that is if he uses the occasions for some other purpose than that for which the law gave protection he will not be able to rely on the defence of qualified privilege- the appellant pleaded at paragraph 9 of the statement of defence that:-
    Paragraph 9:
    “That I was prompted to write the letter of 23rd March 1994 when the plaintiffs caused my arrest upon their information to the police that they suspected me to have committed the offences of arson and murder and subject to police investigation their complaints were found to be false.
    The continual complaints and series of petitions which caused my arrests and detention in various times made me believe that the plaintiffs are trying to divert police investigation from the right course so as not to be able to get to the causes surrounding the dastard crime.”
    The foregoing shows clearly that the appellant used the occasion of publication – which should ordinarily be privileged to satisfy his own interest – on this occasion to avenge the respondents for his arrest by the police and to forestall his imminent dismissal as a director of the Community Bank. In this case malice beings the use of the privileged occasion for another purpose and will prevent the appellant from claiming the protection of the privilege. CONCORD PRESS NIG LTD V. ASAOLU 1999 10 NWLR pt 621 pg. 123.

    Where a plaintiff proves that a libel has been published of him without legal justification his cause of action is complete that is actionable per se and he needs prove that he has suffered actual damage or injury to his reputation for such injury is presumed by the law.
    YOUSSOUPOH V. M.G.M. PICTURES LTD. (1934) 50 TLR 581 JONES V. JONES (1916) 2 AC 481 pg.500

    Where a judgment is attacked on the ground that the trial judge did not properly or adequately consider the claim of the appellants the court of Appeal in its primary role will seek to know the following:-
    (1) The evidence before the trial court
    (2) Whether it accepted or rejected any evidence upon the correct perception.
    (3) Whether it correctly approached the assessment of the value on it.
    (4) Whether it used the imaginary scale of justice to weigh the evidence on either side.
    (5) Whether it appreciated upon the preponderance of evidence which side the scale weighed having regard to the burden of proof.
    AGBANIFO V. AIWEOBA (1988) 14 NWLR pt. 70 325
    EGONU V. EGONU (1978) 11 – 12 SC 111
    KIM V. EMIFO 2001 4 NWLR pt 102 pg.147
    The learned trial judge properly evaluated the evidence after taking the evidence of witnesses and watched their demeanour she came to a decision based on the preponderance of evidence having placed the evidence of the parties on that imaginary scale.
    MOGAJI V. ODOFIN 1978 4 SC 91
    Issue one is resolved in favour of the respondents.
    ISSUE NO 2
    Whether trial court gave the defendant a fair hearing and if not whether such denial encroaches the provisions of Section 33 of the 1979 constitution of Federal Republic of Nigeria.
    The appellant argued that the court frustrated her effort to secure a counsel to represent him.
    The appellant’s motion filed on 8/12/98 was not heard until, 27/1/99 the same day the judgment of court was delivered and shortly after granting the defendant’s application for amendment of his pleadings vide pages 22 and 33A of the record. The court granted the application of the amendment of pleadings and prevented him from filing the amended pleadings within 7 days statutory period or even been heard on the amended pleadings. Following from this behaviour of the trial court it cannot be said that the appellant was given a fair hearing – the denial of fair hearing is an encroachment on his fundamental human right as enshrined in section 33 of the constitution. This renders the proceeding a nullity.
    The appellant cited the cases of
    ARIORI V. ELEMO 1983 1 SC 13
    OYEYEMI V. COMMISSION OF LOCAL GOVERNMENT KWARA STATE (1992) 2 SCNJ 266
    OLUMESAN V. OGUNDEPO (1996) 2 SCNJ 172
    ONWUKA IKALU V. VICTOR ODILI (1992) 6 SCNJ 76
    KMIM V. THE STATE (1993)6 SCNJ 73
    EKIYOR V. BONSOR (1997) 7 SCNJ 479
    The respondent submitted that the appellant during the hearing of this case decided to represent himself while the respondents engaged the services of a counsel.
    Such requirement of strict representation by counsel is in criminal cases. NEMI V. THE STATE 1994 10 SCNJ pg 1 the appellant cannot blame the court for not making use of his opportunity to call a counsel. A substantial complaint of the appellant is that judgment was delivered the same day 27/1/97, when his application to amend his statement of defence was granted and thereby disallowed him from filing his amended pleading on being heard on this amended pleading – and that this was a denial of fair hearing. It is the submission of the respondents that the proposed amendment did not introduce new facts – as it was in line with his denial of liability. The appellant confirmed what he pleaded about the respondents and stood by same. This court ought not to hold that he was denied fair hearing when it was his choice not to be represented by counsel the appellant was not adduced sufficient evidence of the injury suffered as a result of failure by the trial court to allow him file his amended statement of defence to infer a denial of his constitutional right – by virtue of section 33 of the 1979 constitution or any denial of his constitutional right.
    He cited the cases of YAHAYA ADIGUN V. ATTORNEY GENERAL OYO STATE & ORS 1987 1 NWLR pt 50 pg 678 at 707-708. This issue should be resolved in favour of the respondents. The complaint of the appellant is that he was not allowed to present his case based on the amended statement of defence. The appellant decided to amend his statement of defence on the day the case was fixed for judgment the court took his application for amendment – and his application was granted and the court proceeded to deliver judgment immediately. The appellant was not represented by counsel during trial. The appellant regarded this as breach of his constitutional right to fair hearing. It was the contention that though he was granted this amendment – it did not add anything new to his case.
    As rightly observed by the respondents – the appellant reserved the right in prosecuting a civil section to be represented or not be represented – by counsel – this is not a breach of any constitutional right.In the court note of the 27th of January 1997 – the honourable court called upon the appellant appearing in person to move his motion for amendment dated the 2nd of December 1996. The appellant’s request in the application was that the statement of defence was to be an addition to the existing statement. The court in its order said: – “The defendant’s motion dated the 2nd December 1996 for amendment of the statement of defence is hereby granted.
    The twelve paragraphs proposed amendment shall be in addition to the original statement of defence and shall be numbered as paragraph 28-35 and shall be filed 7 days from today.”
    An amendment of pleadings maybe allowed at any stage before judgment. However, if granting an amendment would unduly delay the hearing of a suit or unfairly prejudice either party to the suit an amendment may be refused.
    CHIDOKA V. FIRST CITY FINANCE CO. LTD 2001 2 NWLR pt 697 pg 216 DOMINON FLOUR MIILLS LTD. V. GEORGE 1960 LLR pg 53. OJAH V. OGRONI (1976) 4 SC 69

    Obviously the amendment did not create a new set of facts, or was it meant to supersede the existing facts and thereby canceling the existing statement of defence – it was meant as an addition to the existing facts in the statement hence the court numbered the statement of defence to reflect the addition of twelve paragraphs – now paragraphs 1 – 35. Reading through the facts in this additional paragraph they reconfirm the facts already before the court in the defence of the respondent. The court was therefore right to have delivered the judgment as taking any step to the contrary would have occasioned a greater miscarriage of justice. The appellant is a layman – who is not learned in the law and he decided to conduct his case himself. The lower court did not do anything to prevent him or frustrate his efforts to be represented. The appellant complained of the breach of his constitutional right to fair hearing. Fair hearing or lack of it depends on the procedure followed in the determination of a case. Where there is a denial of fair hearing in a judicial proceeding that proceeding will be declared a nullity. There was no breach of the elements of fair hearing in the circumstance of this amendment. This issue is resolved in favour of the respondents. Having resolved the two issues in favour of the respondents – the appeal lacks merit. It shall be and is hereby dismissed. The judgment of the trial court is affirmed with N10, 000 costs in favour of the respondents.

    SUNDAY AKINOLA AKINTAN, J.C.A.: I had the privilege of reading the leading judgment prepared by my Lord, Adekeye, J.C.A. The facts of the case are very clear and the issues raised in the appeal are also simple and devoid of any complication. The case is one of libel. The plaintiffs clearly pleaded the facts they relied on in support of their claim. They also led credible evidence in support of their pleadings. The learned trial judge was therefore right in giving judgment for the plaintiffs in line with their claim. As the appellant has not shown any reason why the judgment should be set aside on appeal in this court, I agree with the view expressed in the leading judgment that there is totally no merit in the appeal. I therefore dismiss the appeal with costs as assessed in the leading judgment.

    MORONKEJI OMOTAYO ONALAJA, J.C.A: I was privileged and honoured to have had a preview of the lead judgment just handed down today by my LORD ADEKEYE JCA: which appeal involved the tortuous act of defamation and the stage to grant amendment of pleadings.
    The lead judgment has meticulously and critically dealt with all the issues canvassed and germane in this appeal. As the reasonings and conclusions are in accord with my views on the issues raised in this appeal I adopt the reasonings and conclusions reached in the lead judgment as my own thereby aligning myself with the lead judgment that since all the issues were resolved against the appellants, the appeal was therefore rightly dismissed I also on my part dismiss the appeal.
    I abide with the consequential orders made in the lead judgment inclusive of the order of costs.

 

Appearances

MRS A. O. JOHNSON-ODUSANYAFor Appellant

 

AND

  1. L. LAOYEFor Respondent

 

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