BAYODE AFOLABI V. CHIEF SAMUEL FEHINTOLA ALAREMU (2011)

BAYODE AFOLABI V. CHIEF SAMUEL FEHINTOLA ALAREMU

(2011)LCN/4937(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 30th day of November, 2011

CA/B/360/2006

RATIO

PUBLIC DOCUMENT: WHAT IS A PUBLIC DOCUMENT; WHETHER A PETITION WRITTEN BY THE CHIEFS OF A COMMUNITY TO THE CHIEFTAINCY COMMITTEE OF A LOCAL GOVERNMENT AND RECEIVED BY THE COMMITTEE QUAILIFIES AS A PUBLIC DOCUMENT

What is a public document? Section 102 of the Evidence Act 2011 (formerly Section 109) defines public documents as documents forming the official acts or record of the official acts of (a) the sovereign authority; (b) official bodies and tribunals; (c) of public officers, legislative, judicial and executive whether of Nigeria or elsewhere and public records kept in Nigeria of private documents. Governor of Ekiti State v. Ojo (2006) 17 NWLR (Pt. 1007) 95 @ 127 D-G: 1298-D. A petition written by the chiefs of a community to the chieftaincy committee of a local Government and received by the committee becomes part of the acts or record of the official acts of a public officer and therefore a public document. The only way to prove its authenticity in terms of receipt by the Government office is by tendering a certified true copy obtained from the Government Department. PER CHINWE E. IYIZOBA, J.C.A

ADMISSIBILITY OF DOCUMENT: WHETHER A COURT CAN EXPUNGE A DOCUMENT AFTER A CONSIDERED RULING ON THE ADMISSIBILITY OF THE DOCUMENT HAS BEEN GIVEN

Was the trial Judge wrong in refusing to expunge the evidence having given a considered ruling thereon? I think not. Generally, a trial court can, after admitting a document with or without objection during trial, on further reflection while writing the judgment exclude the document or decide not to attach any weight on it on the basis that it was wrongly admitted. This does not however apply where a considered ruling on the admissibility of the document has been given by the trial judge. Going back on his ruling would amount to sitting on appeal over his decision. PER CHINWE E. IYIZOBA, J.C.A

WRONGFULLY ADMITTED EVIDENCE: WHETHER IT IS THE DUTY OF A COURT OF APPEAL TO REJECT EVIDENCE WHICH HAS BEEN IMPROPERLY RECEIVED AT THE TRIAL COURT

It is the duty of a court of appeal to reject evidence which has been improperly received. See Alashie v. Ilu (1964) 1 All NLR 390 @ 397: “This court in Owonyin v. Omotosho [1961] All N.L.R. Part II 304, 308, called attention to the impropriety of relying on inadmissible evidence in arriving at a decision. It was there said, on the authority of Jacker v. International Cable Co. Ltd., (1888) 5 T.L.R. 13: “When matter has been improperly received in evidence in the Court below, even when no objection has been raised, it is the duty of the Court of Appeal to reject it and to decide the case on legal evidence.” (per Onyeam, J.S.C.) PER CHINWE E. IYIZOBA, J.C.A

LIBEL: WHETHER IT IS A SERIOUS ALLEGATION AND INDEED LIBELOUS TO SAY THAT A PERSON IS A SOJOURNER IN HIS TOWN

It is a very serious allegation and indeed libelous as found by the trial judge to say that a person is a sojourner in his town. To justify such allegation strict proof by legally admissible evidence is required. Outside the inadmissible exhibit P8, the evidence adduced by the respondent fell far short of the required standard. PER CHINWE E. IYIZOBA, J.C.A

LIBEL: WHETHER WHERE A PLAINTIFF PROVES THAT A LIBEL HAS BEEN PUBLISHED AGAINST HIM WITHOUT LEGAL JUSTIFICATION, HE NEEDS NOT PROVE THAT HE HAS SUFFERED ANY RESULTING ACTUAL DAMAGE OR INJURY TO HIS REPUTATION

The law is that a plaintiff in an action for libel need not allege or prove that he has suffered damage. If he has been libeled without lawful excuse or justification, damages follow and the damages awarded is general damages. See Guardian Newspapers Ltd & Anor v. Ajeh (2011) LPELR-SC 234/2005: Oduwole & Ors v. West (2010) 1 LPELR – SC 173/2003: “It must be reiterated here that every libel is of itself a wrong in regard to which the law imputes general damages. If a plaintiff proves that a libel has been published of him without legal justification, his cause of action is complete. He needs not prove that he has suffered any resulting actual damage or injury to his reputation for such damage is presumed.” Per Fabiyi J.S.C. PER CHINWE E. IYIZOBA, J.C.A

ASSESSMENT OF DAMAGES IN LIBEL CASES: THE NATURE OF ASSESSMENT OF DAMAGES IN LIBEL ACTIONS; FACTORS THAT WILL BE TAKEN INTO ACCOUNT IN THE ASSESSMENT OF DAMAGES IN LIBEL ACTIONS

JUSTICES:

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria

Between

BAYODE AFOLABI – Appellant(s)

AND

CHIEF SAMUEL FEHINTOLA ALAREMU – Respondent(s)

CHINWE E. IYIZOBA, J.C.A (Delivering the Leading Judgment): The appellant sued the respondent for libel claiming N5 million as damages. The appellant, a pensioner and former Principal Registrar of Ondo State Judiciary is a native of Daja Village, Ajowa, Akoko North West Local Government of Ondo State. The respondent, a former employee of N.E.P.A and also a native of Daja village denies that the appellant is from Daja village. The respondent had interest in the Shaba chieftaincy stool of Daja-Ajowa. Due to certain disputes regarding the stool, the respondent instituted a suit at the High court and then instructed his lawyer to write a letter complaining about the activities of the appellant regarding the suit he filed. The appellant’s cause of action is founded on the contents of the letter written by the respondent’s lawyer. Paragraphs 4 and 5 of the appellant’s 2nd amended statement of claim state as follows:
“4. Subsequent to the aforementioned suit filed by the defendant, the defendant caused his solicitors, R.A. Olagunju & co to write to the Secretary of Akoko North West Local Government, Ondo State, copies of which were made available to Oba Julius Kehinde, the Oludaja of Daja, Ajowa Akoko, the Divisional Police Officer, the Nigerian Police Station, Oke-Agbe, Akoko North West Local Government and natives and members of Daja and Ajowa communities and in the said letter dated 4th April, 1997, the defendant falsely and maliciously wrote and published to the aforementioned of and concerning the plaintiff, the words following, that is to say “we are writing you this letter to bring to your notice…the activities of one Mr. Bayode Afolabi, a sojourner at Daja who now, according to our instructions, is claiming to be leader of the people of Daja at Ajowa”
5. In the same letter, the defendant in paragraph 4 said “…in the hope that you will call Mr. Bayode Afolabi to order, before he precipitates a breakdown of law and order in the area”….”
In his statement of defence, the respondent pleaded that the averments above were true. He pleaded as follows:
“2. In answer to paragraph 1 of the amended statement of claim the plaintiff is indeed a pensioner having retired from the judiciary of Ondo State; but denies that he is a native of Daja, Akoko as his native town is a place called “EJE” town far away from Daja town in Ajowa. In support of this assertion the defendant shall rely on a copy of a petition written by “The Chiefs of Oyagi Quarters Daja – Ajowa, dated 2/7/58, titled Oludaja Chieftaincy Kingmakers:
Appointment of the Chief Shaba of Daja-matters affecting, and addressed to the Chieftaincy Committee, Ajowa Local Council, c/o Secretary/Treasurer, Ajowa Council, Ajowa, and signed by Chiefs (1) Elejiyan (2) Obanubi (3) Oludo (4) Obarinde (5) Eleta (6) Obaniyi and (7) Obademi.
2(a). Further to paragraph 2 above the defendant avers that one Josiah Obarishe referred to in paragraph 3 of the petition was Plaintiff’s father; the defendant pleads a portion of the judgment in SUIT NO. 15/35: JOSIAH SHABA (M) OF DAJA ON BEHALF OF HIMSELF AND HIS FAMILY 30 MALES OF DAJA IKARAM GROUP, VERSUS THE OLOJO OF OJO ON BEHALF OF JOEL YAYA AND THE PEOPLE OF ARIGIDI GROUP, in which plaintiff’s father deposed, inter alia at page 2 of the said judgment in the following words; “the land belonged to my father. It neither belongs to Daja nor Ojo but to my family, the EJE family, who had a village of their own but joined Daja before my great grandfather’s time. EJE is the name of my family. It has no special meaning” as constituting a statement against interest by plaintiff’s father, and by operation of law, against plaintiff’s interest.
“6. In answer to paragraph 4 and 5 of the statement of claim, the defendant avers that he instructed his lawyers, Messrs R.A. Olagunju and company to protest against activities of the plaintiff in respect of a suit, he, the defendant instituted at the High court in respect of Shaba Chieftaincy in Daja-Ajowa.
7. Further to paragraph 6 above, the defendant avers that he did not mean to insult or defame the plaintiff in any manner when he called him a sojourner at Daja; that he merely brought to the notice of the Local Government Secretary that the plaintiff was not a native of Daja and ought not to meddle in respect of Shaba Chieftaincy which in no way concerned him.”
After pleadings were duly exchanged the trial came before E.A. Komolafe J at the Akure division of Ondo State High Court. The learned trial judge heard evidence from both sides and admitted in evidence as Exhibit p8 the petition referred to in paragraph 2 of the amended statement of defence as set out above but rejected as inadmissible the certified true copy of the judgment in suit no. 15/35 referred to in paragraph 2(a) of the amended statement of defence. The learned trial Judge in a considered judgment dismissed the appellant’s claim. Dissatisfied with the judgment, the appellant has appealed to this court.
Briefs were filed and duly exchanged. The appellant formulated six issues for determination:
1. Whether legally inadmissible evidence which is wrongly admitted by the trial court can be used to form the basis of a just judgment.
2. Whether the learned trial judge can rely on the quoted passage on page 1 of exhibit p8, also on paragraph 2(a) of the Amended Statement of Defence when the document upon which the statement was made was not before the court.
3. Whether paragraph 2(a) of the Defendant’s Amended Statement of Defence without more can form the basis upon which Judgment is given without the benefit of admissible evidence.
4. Whether the failure of the plaintiff to call evidence to discredit exhibit p8 entitled the court to believe the averments in the Defendant’s statement of Defence and consequently base his judgment thereon.
5. Whether the defendant proved the truth of the publication made by him concerning the plaintiff and if so whether the plea of Justification was available to the respondent.
6. Whether the appellate Court seized of the matter is competent to evaluate the whole evidence and award damages claimed in the lower court.
The respondent formulated only one issue for determination:
1. Whether a plea of justification is available to the respondent on the facts of this case.
Both counsel adopted and relied on their respective briefs.
ISSUE NO. 1
The argument of learned counsel for the appellant centered mainly on the inadmissibility of exhibit P8 and the fact that the defence of justification accepted by the learned trial Judge was based entirely on the contents of the legally inadmissible Exhibit P8 and averment in paragraphs 2 &, 2(a) of the amended statement of defence unsupported by evidence. Counsel argued citing many authorities that the learned trial Judge erred in admitting secondary evidence of Exhibit P8 when it is a public document, of which only a certified true copy is admissible.
Having wrongly admitted the evidence, the lower court, counsel argued ought to have expunged the exhibit and once expunged, the evidence left was insufficient to sustain the order of dismissal of the appellant’s case. Further, Counsel relying on the cases of Brawal Shipping (Nigeria) Ltd v. Onwadike (2000) FWLR (Pt. 23) 1254 @ 1274 G-H.: Ezeana v. Atta (2004) 4 MJSCN 48 submitted that the appellant was under no obligation to call evidence in rebuttal of exhibit P8 since the respondent failed to call admissible evidence to prove his defence of justification.
Learned Counsel for the respondent in his brief referred to exhibit P8, the alleged petition of Chiefs of Oyagi Quarters pleaded in paragraph 2 of the amended statement of defence where the appellant’s father in his evidence in the judgment of the customary court said that his family had a village of their own but later joined Daja and submitted that the appellant in his pleading had no answer to the averment other than to describe the alleged petition in paragraph 4 of his reply to the amended statement of defence as non-existent, a fabrication, make belief and an attempt to present veiled defence without calling evidence in support thereof. Counsel relying on the case of Anya v. Imo Concorde Hotels Ltd (2002) 14 SCM 5, submitted that failure of the appellant to proffer evidence in support of his pleading is fatal to his case as he failed to contradict the averment in the respondent’s statement of defence relating to his father’s assertion that they are from Eje. Learned counsel dismissed the numerous cases cited by the appellant on the inadmissibility of Exhibit P8 as irrelevant as there was no basis for the exclusion of the exhibit.
I have studied carefully the submissions of counsel on this issue. His argument and indeed his argument on all the other issues canvassed in this appeal revolve around what he termed “legally inadmissible exhibit P8”. It is thus a good starting point. In his evidence in chief, the respondent testifying as DW1 at pages 97 and 98 of the record of appeal said:
“… I have listened to the evidence given by the plaintiff PW5. I know why he has brought me to court. He said that I called him a stranger in Daja when in actual (sic) that he is a stranger because he is a native of Eje. I know his father well. The plaintiff’s father’s name is Josiah Shaba. In 1958, Ajowa Local Government Chieftaincy Committee made a mistake in putting PW5 father’s name among the Kingmakers of Daja Ayagi Ajowa. When the chiefs in Ayagi Quarters of Daja heard they wrote a letter of petition to the Ministry of Chieftaincy Affairs, Ibadan to the effect that Chief Josiah Obarise was a stranger in Daja Ajowa and that he comes from Eje and that he is not a free born of Daja. I have a copy of the petition”
When counsel for the respondent tendered the petition as an exhibit, appellant’s counsel objected on the ground that while the evidence was that the petition was written to the Ministry of Chieftaincy Affairs, the document sought to be tendered was written to the Chieftaincy Committee Ajowa Local Council. In a considered ruling, the learned trial Judge overruled the objection and admitted the petition as Exhibit P8. Relying on the cases of Odunsi v. Babangida (1995) 1 NWLR (Pt.374) 641 @ 655: Phillips v. Phillips (1878) 4 O.B.D 127 @ 133 – 134, the Judge in a considered ruling held that in so far as the document was tendered in support of the assertion that the native town of the appellant is a place called Eje town, the document in law need not be pleaded, not being a material fact which must be pleaded. Being relevant to the issue, it was admissible not withstanding that DW1 testified that the document was addressed to the Ministry of Chieftaincy Affairs instead of the Chieftaincy Committee of Ajowa. The appellant did not appeal against this ruling. But in his written address, he urged the trial Judge to expunge Exhibit P8 on same grounds as canvassed before the ruling and also on the ground that it is a public document of which only a certified true copy is admissible in evidence. In his ruling, the trial Judge did not consider the issue whether or not Exhibit P8 was a public document. The appellant again raised the issue in his brief of argument. What is a public document? Section 102 of the Evidence Act 2011 (formerly Section 109) defines public documents as documents forming the official acts or record of the official acts of (a) the sovereign authority; (b) official bodies and tribunals; (c) of public officers, legislative, judicial and executive whether of Nigeria or elsewhere and public records kept in Nigeria of private documents. Governor of Ekiti State v. Ojo (2006) 17 NWLR (Pt. 1007) 95 @ 127 D-G: 1298-D.
A petition written by the chiefs of a community to the chieftaincy committee of a local Government and received by the committee becomes part of the acts or record of the official acts of a public officer and therefore a public document. The only way to prove its authenticity in terms of receipt by the Government office is by tendering a certified true copy obtained from the Government Department.
In his judgment, the learned trial Judge said:
“…the call on this court to exclude Exhibit P8 amounts to an abuse of the process of this court having delivered a considered ruling in respect thereof and there has been no appeal in respect thereof. Since there has been no appeal prospective or pending in respect of that ruling, the ruling subsists and remains valid until set aside on appeal. In the circumstances, I will decline the request of the Plaintiff s counsel calling on this court to exclude Exhibit P8 and to expunge any testimony based thereon.”
Was the trial Judge wrong in refusing to expunge the evidence having given a considered ruling thereon? I think not. Generally, a trial court can, after admitting a document with or without objection during trial, on further reflection while writing the judgment exclude the document or decide not to attach any weight on it on the basis that it was wrongly admitted. This does not however apply where a considered ruling on the admissibility of the document has been given by the trial judge. Going back on his ruling would amount to sitting on appeal over his decision. Learned counsel for the appellant is consequently wrong in his argument that the lower court ought to have disregarded Exhibit P8 in his judgment after delivering a considered ruling on its admissibility. The only option open to the appellant was to appeal against the ruling.
On the inadmissibility of exhibit P8, appellant’s counsel contended that the Chieftaincy Committee, Ajowa Local Council c/o Secretary/Treasurer Ajowa local Council Ajowa is not a person known to law and therefore not capable of receiving a petition and so shows that the petition did not exist. This argument no doubt is an additional reason why the document to be admitted ought to be a certified true copy obtained from the Government agency where the petition was allegedly sent to. Another point of relevance is the competence of DW1 to tender Exhibit P8 in evidence, not being a certified true copy obtained from the Government agency. One of the makers of the document could tender the counterpart of the document in his possession, not as evidence that the petition was sent to the Government department but as evidence that the petition was written by the chiefs. However what was tendered was a mere copy of the document by a witness who was not one of the makers of the document. Section 91(1) of the Evidence Act provides:
“In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied
a. If the maker of the statement either-
(i) Had personal knowledge of the matters dealt with by the statement, or
(ii)…
b. If the maker of the statement is called as a witness in the proceedings:
Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is beyond the seas and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.
(2) In any civil proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) of this section shall be admissible as evidence or may, without such order having been made, admit such a statement in evidence-
(a) Notwithstanding that the maker of the original statement is available but is not called as a witness;
(b) notwithstanding that the original document is not produced, if in lieu thereof there is produced a copy of the original document or of the material part thereof certified to be a trued copy in such manner as may be specified in the order or as the court may approve as the case may be.”
The above provisions of the Evidence Act were not complied with in the tendering and admission of Exhibit P8. DW1 was not one of the seven persons who thumb printed the petition. No foundation was laid as to why none of the seven was called as a witness or for the tendering of the document by a non maker as stated in the above provision of the law. What was tendered was not the original but a mere copy without any explanation whatever as to why the original cannot be tendered or as to where the copy came from. With all due respect to learned trial Judge, Exhibit P8 is indeed legally inadmissible in evidence in the manner in which it was admitted. See Anatogu & Ors v. Iweka II & Ors (1995) NWLR (Pt. 415)
“Now if the documents, which the respondents intended to put in evidence, fall under section 90(1), it is clear from the provisions thereof that foundation must be laid before they could be admitted in evidence See Ogunsanya v. Taiwo (1970) 1 All NLR 147 at p. 151, and Alhaji Etiko v. Aroyewun (1959) 4 F.S.C. 129 at p. 130; (1959) SCNLR 308. No such foundation was established in the trial court to facilitate the admission of the document before they were tendered for admission. Per Uwais, JSC (Pp. 22 -25, paras – C)”
In paragraph 4 of his reply to the amended statement of defence, the appellant averred that the petition is non-existent, a fabrication and a calculated attempt to present a veiled defence. No evidence was adduced in support of the averment. On this ground, the respondent hinged his response to the appellant’s issue (1) on the fact that the appellant not having led evidence on his pleading that exhibit P8 is non existent failed to contradict the averment in paragraph 2 (a) of the defendants amended statement of defence. Respondent’s counsel contended that pleadings in respect of which no evidence is led go to no issue. The law however is that the evidential burden on a party to adduce evidence arises where the opponent discharged his own evidential burden leading to a shift of the burden. Having come to the inescapable conclusion that Exhibit P8 is inadmissible, the implication is that the respondent failed to discharge the evidential burden of proof on him making it unnecessary for the burden to shift to the appellant. At paragraph 7.3 of page 9 of his brief, appellant’s counsel observed:
“With the greatest respect to your Lordships, assuming without conceding that the plaintiff did not file a reply to paragraph 2(a) of the defendant’s statement of defence does that entitle the learned trial Judge to believe the averment in the said paragraph without more as if the plaintiff had conceded to the point.”
The appellant is right. Even if he did not file a reply, the burden still rest on the respondent to satisfy the evidential burden of proof resting on him. It is only where he satisfies the burden that the need for a rebuttal from the appellant arises. As far as exhibit P8 is concerned, the failure of the appellant to lead evidence in support of his contention that the document does not exist or is fabricated did not arise as the document has been held inadmissible. It is the duty of a court of appeal to reject evidence which has been improperly received. See Alashie v. Ilu (1964) 1 All NLR 390 @ 397:
“This court in Owonyin v. Omotosho [1961] All N.L.R. Part II 304, 308, called attention to the impropriety of relying on inadmissible evidence in arriving at a decision. It was there said, on the authority of Jacker v. International Cable Co. Ltd., (1888) 5 T.L.R. 13:
“When matter has been improperly received in evidence in the Court below, even when no objection has been raised, it is the duty of the Court of Appeal to reject it and to decide the case on legal evidence.” (per Onyeam, J.S.C.)
In the circumstances, I hold that Exhibit P8 was wrongly admitted in evidence not being a certified true copy from the Government office and not having been tendered by one of the makers of the document. It is indeed trite that legally inadmissible evidence which is wrongly admitted by the trial court cannot be used to form the basis of a just judgment. Issue no I is resolved in favour of the appellant.
ISSUE NO.2:
Whether the learned trial Judge can rely on the quoted passage on page I of exhibit P8, also on paragraph 2(a) of the amended statement of defence when the document upon which the statement was made was not before the court.
In arriving at the decision that the defence of justification is available to the respondent, the learned trial judge relied heavily on Exhibit P8 and the averment in paragraph 2(a) of the amended statement of defence. The learned Judge observed in his judgment at page 141 of the record of appeal thus:
“Exhibit P8 is pleaded in paragraph 2(a) of the defendant’s Amended Statement of Defence as follows:
“Further to paragraph 2 above the Defendant avers that one Josiah Obarishe referred to in paragraph 3 of the petition was plaintiff’s father; the defendant pleads a portion of the judgment in SUIT No. 15/35: JOSIAH SHABA (M) OF DAJA ON BEHALF OF HIMSELF AND HIS FAMILY 30 MALES OF DAJA IKARAM GROUP, VERSUS THE OLOJO OF OJO ON BEHALFOF JOEL YAYA AND THE PEOPLE OF ARIGIDI GROUP, in which plaintiffs father deposed, inter alia, at page 2 of the said judgment in the following words; The land belonged to my father. It neither belongs to Daja nor Ojo but to my family, the Eje family, who had a village of their own but joined Daja before my great grand father’s time. Eje is the name of my family. It has no special meaning, as constituting a statement against interest by plaintiff’s father, and by operation of law against plaintiff’s interest”
Plaintiffs pleading in paragraph 3(b) of his 2nd amended statement of claim read thus –
“The Plaintiff avers that he is a member of Ibode family of Oyagi Quarters.”
However Plaintiff in his Reply to paragraph 2(a) of the Defendant’s Amended Statement of Defence merely pleaded in paragraph 4 thereof as follows:
“In further reference to paragraph 2(a) the plaintiff shall (sic) content at the trial of this action that the said copy of petition is nonexistent, make belief, a fabrication and a calculated attempt to present veiled defence.”
At the trial no attempt was made by the Plaintiff to discredit Exhibit P8 pleaded in paragraph 2(a) of the Defendant’s Amended Statement of Defence beyond the categoization of the said Exhibit P8 as a nonexistent document, a fabrication, make belief and an attempt to present a veiled defence.
It is trite law that pleadings for which no evidence is proffered in proof thereof go to no issue. This means that the Plaintiff has failed to contradict paragraph 2(a) of the Defendant’s Amended Statement of Defence to wit: that the plaintiff’s father by his pleading in case No. 15/35 pleaded thus:
“The land belonged to my father. It neither belongs to Daja or Ojo but to my family the Eje family who have a village of their own but joined Daja before my great grand-father’s time.”
The above pleading in my humble view puts the nativity of the plaintiff’s father in doubt.”
I have fully reproduced this part of the judgment of the lower court in order to show clearly that the learned trial Judge based the judgment absolutely on Exhibit P8 and the quotation from the rejected customary court judgment. A certified true copy of the judgment was tendered in evidence as an exhibit by the respondent at page 105 of the record but was rightly rejected by the trial court on the ground that it did not satisfy the requirements of Section 34 of the Evidence Act. It is trite law that evidence given by a witness in previous proceedings is inadmissible in subsequent proceedings to prove the truth of matters in dispute except for purposes of discrediting a witness in cross-examination. See the case of George Obi Ikenye & Anor v. Akpala Ofune & ors (1985) 1 SC 451 or (1985) ALL NLR 201.
The only material evidence in Exhibit P8 and the rejected customary court judgment is the alleged evidence extracted under cross examination from the appellant’s father in the customary court case. I have held that exhibit P8 ought not to have been admitted in evidence. If both Exhibit P8 and the customary court judgment is inadmissible, can the trial court use information derived from the documents in coming to the decision that the defence of justification is available to the respondent? My answer to the question is and ought certainly to be in the negative. Issue No. 2 is also resolved in favour of the appellant.
ISSUE NOs. 3 & 4
Whether paragraph 2(a) of the defendant’s amended statement of defence without more can form the basis upon which judgment is given without the benefit of admissible evidence.
Whether the failure of the plaintiff to call evidence to discredit exhibit P8 entitled the court to believe the averments in the defendant’s statement of defence and consequently base his judgment thereon.
The above two issues overlap and they have partially been dealt with under issues 1 & 2 hence the decision to treat them together.
The contention of the appellant is that the defendant did not lead any credible evidence in support of the averment in paragraph 2(a) of the defendant’s amended statement of defence outside the inadmissible exhibit P8. Further that the failure of the appellant to call evidence in support of his reply does not automatically entitle the court to believe the pleadings of the defendant because pleading alone without supportive evidence cannot amount to proof of justification of the libel.
The appellant’s counsel had argued that the respondent must call admissible evidence to prove his defence of justification and that the only evidence the respondent sought to rely on having been discredited, the appellant was under no obligation to call evidence to further discredit exhibit P8.
With all due respect to learned counsel, if facts are averred in pleadings which are not traversed by the opposing party, once evidence is adduced in support of those facts, which facts are plausible and not incredible, the trial Judge is at liberty to believe the evidence. Indeed where there is no traverse, the party has more or less conceded to the point. If an averment is traversed in the pleadings and no evidence is led in support, the pleadings go to no issue. It is as if the party had conceded the point.

In paragraph 7.4, page 9 of his brief, appellant’s counsel observed:
“We submit that pleadings are not evidence and a court is not entitled to act on pleadings but only on evidence proffered in support of pleadings. The defendant did not proffer any admissible evidence in support of the aforesaid pleadings and only tendered exhibit P8 which we had contended is inadmissible. On this point we refer to the Supreme Court case of FCDA v. Alhaji Musa Naibi (1990) All NLR 475 @ 485 where the Supreme Court said per Nnamani JSC “Pleadings cannot constitute evidence and a defendant who does not give evidence in support of his pleadings or in challenge of the evidence of the plaintiff is deemed to have accepted the facts adduced by the plaintiff notwithstanding the general traverse”
Learned counsel also referred to the case of Jolayemi v. Alaoye (2004) 9 MJSC 93 @ 104 D – G where the Supreme Court per Kalgo JSC observed:
“Pleadings are the body and soul of any case in a skeleton form and are built up and solidified by the evidence in support thereof. They are never regarded as evidence by itself and if not followed by any supporting evidence, they are deemed abandoned”
The appellant’s counsel Mr. Enitan Afolabi got the principles of law accurately. It is indeed very trite. See Honika Sawmill Nigeria (Ltd) v. Mary Okojie Hoff (1994) 2 SCNJ 86. Counsel is however wrong in his contention that the respondent did not offer any evidence in support of his defence of justification to the libel and only tendered Exhibit P8 which is legally inadmissible. Justification of the libel was duly pleaded in paragraphs 2, 2(a), 5, 6 and 7 of the amended statement of defence. I had earlier set out the paragraphs in full. I had also earlier set out the evidence of the respondent DW1 which started at page 97 of the record of appeal. At that page and up to page 98 he testified that the appellant sued him because he called him a stranger in Daja but that indeed he is a stranger in Daja; that he knew his father Josiah Shaba very well; that in 1958, Ajowa Local Government Chieftaincy Committee made a mistake in putting the appellant’s father’s name amongst the kingmakers of Daja Oyagi. When the chiefs in Oyagi Quarters heard they wrote a petition that the appellant’s father was a stranger in Daja Ajowa and that he comes from Eje and not a free born of Daja. He then tendered the petition by the Chiefs to support his contention that appellant is a stranger in Daja because his father was a stranger in Daja.
Notwithstanding the fact that exhibit P8 has been held inadmissible, the oral evidence tendered by the respondent remain intact. In the face of this oral evidence on the crucial issue of whether or not the appellant is an indigene of Daja, it cannot be said that he led no evidence in support of his pleading but only relied on exhibit P8. Respondent gave evidence on the issue and it is for the court to determine whether in the absence of Exhibit P8, the evidence when weighed side by side with the evidence tendered by the appellant is sufficient to establish the defence of justification. On issue 3, I hold that aside from exhibit P8 as pleaded in paragraph 2(a) of the amended statement of defence of the respondent, the respondent did lead oral evidence in proof of his averment that the appellant is a stranger in Daja. Issue 3 is resolved against the appellant. On issue 4, I had earlier held that Exhibit P8 is inadmissible. That being the case, there was no obligation on the appellant to lead evidence to further discredit the exhibit. The respondent did not discharge the evidential burden on him as regards the exhibit so the burden did not shift to the appellant. Issue 4 is resolved in favour of the appellant.
ISSUE 5:
Whether the respondent proved the truth of the publication by him concerning the appellant and if so whether the plea of justification was available to him.
Learned Counsel for the appellant on this issue submitted that the only evidence tendered by the respondent to prove justification in the libel was exhibit P8 and that exhibit P8 being inadmissible, left the defense unproven. Counsel on the other hand referred to the evidence proffered by the appellant and his witnesses which evidence he claimed were not challenged or controverted by the respondent in cross-examination. Counsel further submitted that the appellant proved his case for libel as pleaded and as found by the learned trial Judge and argued that the appellant is consequently entitled to the reputation claimed in the case. On principle governing the defence of plea of justification counsel referred to Gatley on Libel and Slander, 7th edition page 152, paragraph 351. On the discharge of onus of proof of justification by a defendant he referred to the Supreme Court case of Dumbo v. Idugboe (1983) All NLR 37 @ 58 – 59: ACB v. Apugo (2001) 1 MJSC 1 @ 18 A – B. 22 A and finally urged us to reject the defence of justification and resolve this issue in the Plaintiff s favour, thereby allowing the appeal.
The appellant testified and called four other witnesses. Amongst the witnesses were two witnesses who are important chiefs in the community. They are PW1 Oba Julius Kehinde, the Olodowa of Oludaja of Daja; and PW4, Joseph Adekunle the head of Ibode family, Daja Ajowa where the appellant hails from. PW1 testified that the appellant is an indigene of Daja. A copy of the letter containing the alleged libel was addressed to him by the respondent. He testified that he was surprised to read from the letter that the appellant was not an indigene of Daja because he had not read of such from anywhere. He testified that the appellant’s father Obarise were the owners of Daja. He testified that history has it that the father of Obarise was Obarewon and that he became Shaba and Oludaja of Daja during his life time. He testified that the appellant’s father and the respondent’s father contested the Shaba chieftaincy against each other because they are both from the same quarter. The Shaba chieftaincy was won by the father of the respondent. He further testified that on receipt of the libelous letter, he went to the father of Obaluwa, the oldest man in Daja and told him of the letter he received saying that the appellant is not an indigene of Daja. Chief Obaluwa admitted there was nothing of such. PW1 confirmed that the appellant is from Ibode family, Oyagi quarters of Ajowa. The appellant’s father had a younger sister called Ruth who was made Queen of women in Daja because of her activities in Daja by Chief Obadun, an Oba from Oyagi quarters of Ibowe family. Chief Obadun is a relation of the defendant/respondent. He also testified that Daja came from Apole to settle where they are now and that he has never heard of a town called Eje. Surprisingly, PW1 was not cross-examined on any of these vital and incisive pieces of evidence which touched directly on the issue in contest. He was cross-examined about the suit alleged to have been instituted by Josiah Obarise the appellant’s father against the Olojo of Ojo in 1935. He stated he was unaware of the suit.
PW4, Joseph Adekunle is the head of the Ibode family, the appellant’s family. He testified that the appellant is a member of the Ibode family of Daja, Ajowa and not a sojourner in Daja as stated in the libel letter, a copy of which he collected from the respondent where he was distributing the leffers. He testified that the intention of the respondent in calling the appellant a sojourner in Daja was to destroy him in the town. He stated that the anger of the respondent against the appellant was that the appellant supported a motion he moved nominating a candidate for the vacant stool of Shaba of Daja from a family, other than the respondent’s family as the respondent was interested in the chieftaincy. PW4 testified that as a native of Daja and as head of the Ibode family, he knew the plaintiff/appellant and his father and that according to the history of the town, it was the appellant’s father Chief Obarise who brought Chieftaincy to Daja. He testified that the appellant’s grandfather was Shaba and later became Oludaja of Daja; and that the appellant’s aunt Ruth Bode was the Queen of women in Daja. He did not know of any town called Eje. Under cross-examination, PW4 denied knowledge of any suit instituted by the appellant’s father Josiah Shaba against the Olojo of Ojo. He denied repeatedly knowing any town called Eje town. He admitted being from the same family as the appellant and his father. The appellant herein testified as PW5. The relevant part of his evidence is set out below:
“…I am not from Eje town. Infact Eje town or village does not exist at all. I am from Daja village, Ajowa Akoko Ondo State of Nigeria. I am from Ibowe Family Oyagi Quarters. My father Chief Josiah Afolabi was the Chief Obarise of Daja, having been installed as a traditional Chief in 1943 by the then Oludaja of Daja Oba Obadun 1, an Oba from Ibowe family an uncle of the defendant. My father Chief Obarise contested the Shaba of Daja with the defendant’s father Chief Joshua Alaremu but lost as Ihoko, Ibosuele and Ibowe families supported him. My family and the defendant’s family lived together at the old site before moving to the present site in 1929. As at now; the two families go to farm at the old site now known as Apolo Daja. I was at Apolo Daja in 1925 before moving to the present site in 1929. My grandfather was installed as traditional chief, Chief Obarewon and subsequently became the Shaba and Oludaja of Daja. My father was a Christian … He was one of the people who brought Christianity to Daja. The old site in 1912…I have said that my father is a traditional chief. I will like to be a chief. I cannot be a chief now because there is a case of libel before this court because the defendant alleged that I am not from Daja. I have been to Oludaja of Daja and he said that there is a case before this court and that it is after the outcome of the case that I can aspire to be a chief. The libel is malicious. The defendant wanted to destroy me and damage me as a person and prevent me from being installed as a traditional chief of Daja. Also because he strongly believes I was against him in the Shaba Chieftaincy… Following the letter endorsed or copied to the Divisional Police office, Oke-Agbe I was arrested by Inspector Olumoko at Daja Ajowa on 12/4/97 and taken to the Police Station Oke-Agba for questioning. I was scolded insulted humiliated and detained. I was asked to present a surety to bail me because of the damaging remarks made against me by the defendant. The then Police officer Mr. Obashe told me as a sojourner I should desist from dabbling in chieftaincy matters in the area.”
During cross-examination, the respondent did not challenge the witness on any of the above assertions. Rather the questions were on the contents of exhibit P8 and the customary court proceedings, which the witness denied knowledge of.
Apart from Exhibit P8 which I have found to have been improperly admitted, what other evidence did the respondent lead in support of his plea of justification. At the risk of repetition but because of its importance, the respondent at page 98 of the record of appeal testified:
“…He said that I called him a stranger in Daja when in actual (sic) that he is a stranger because he is a native of Eje. I know his father well. The plaintiff’s father’s name is Josiah Shaba. In 1958, Ajowa Local Government Chieftaincy Committee made a mistake in putting PW5 father’s name amongst the kingmakers of Daja Oyagi Ajowa. When the chiefs in Oyagi Quarters of Daja heard they wrote a letter of petition to the Ministry of Chieftaincy Affairs, Ibadan…”
In the absence of exhibit P8, it is just the ipsi dixit of the witness DW1. He did not call any witness from the entire Oyagi Quarters Ajowa to support his contention that the appellant is from Eje and not from Daja. All the witnesses testified that there is no town or village called Eje and that they did not know of any such place. Even in the inadmissible Exhibit P8, the appellant’s father referred to his family as the Eje family. He did not say they were from Eje village. The respondent made no effort to establish where Eje is. The only witness he was able to come up with was his brother whose evidence was discountenanced because he sat in court all through the proceedings. The evidence that Ajowa Local Government Chieftaincy Committee made a mistake in putting the appellant’s father’s name amongst the kingmakers of Daja Oyagi Ajowa was completely undermined by the uncontroverted evidence before the lower court that the appellant’s grandfather was Shaba and later became Oludaja of Daja. The root of the family of the appellant is deeply entrenched in Daja as shown by the uncontradicted evidence of PW1, Oba Julius Kehinde, the Olodowa of Oludaja of Daja, the appellant himself and his other witnesses. The learned trial judge failed to evaluate the evidence led in the case as all his effort was focused on the inadmissible exhibit P8. The law is that findings of fact are matters peculiarly within the province of and reserved for the trial court. However, where there is ample evidence and the trial court failed to evaluate it and make correct findings, the court of appeal is at liberty to evaluate such evidence and make proper findings unless the findings rest on credibility of witnesses. See Osho v. Ape (1998) 8 NWLR (Pt 562) 492 @ 510 A-B. See also Buhari v. INEC & Ors (2008) 12 SC (Pt. 1) 1. Without much ado, there is overwhelming evidence unchallenged by the respondent that the appellant is from Daja. The appellant was able to trace his lineage in Daja back to his great grandfather who held powerful chieftaincy stools in Daja-Shaba and Oludaja! There was evidence unchallenged by the respondent that the appellant’s family enjoyed all the rights and privileges of full indigenes of Daja without any restrictions whatever. The appellant’s father and the respondent’s father contested the Shaba chieftaincy against each other because they are both from the same quarter. It was the respondent’s relation Chief Obadun, an Oba from Oyagi Quarters of Ibowe family that appointed the appellant’s father’s younger sister called Ruth Queen of women in Daja because of her activities in Daja. All these uncontradicted evidence point to the fact that the alleged petition by chiefs of Oyagi Quarters of Daja to the Ministry of Chieftaincy Affairs, Ibadan may indeed be non existent and a mere incidence of politics to undermine the position of the appellant’s family in the struggle for chieftaincy stools. This view is further strengthened by the inability of the respondent to call any witness to back his assertion that the appellant is a sojourner in Daja or to obtain a certified true copy of the petition from the Local Government. PW1 is the head of one of the families, whose predecessor is supposed to have thump printed the petition but he denied knowledge of it. Indeed at page 111 of the record of appeal, under cross-examination, the respondent said he did not deem it necessary to show PW1 and PW4 both heads of two out of the four families that constitute Oyagi quarters the alleged petition Exhibit P8 because he had no case with them. The respondent simply did not discharge the burden of proof on a balance of probability that the appellant was indeed a sojourner in Daja. He placed his entire case on the defence of justification on the inadmissible exhibit P8. It is a very serious allegation and indeed libelous as found by the trial judge to say that a person is a sojourner in his town. To justify such allegation strict proof by legally admissible evidence is required. Outside the inadmissible exhibit P8, the evidence adduced by the respondent fell far short of the required standard. The respondent was unable to prove the truth of the allegation that the appellant is a sojourner in Daja and cannot therefore avail himself of the plea of justification. His defence of justification is further undermined by the unchallenged evidence that the libel was actuated by malice. Although the issue of malice arises mostly in cases where the defence of qualified privilege is raised, it could apply in a case where justification is unsuccessfully set up in order to further support the unavailability of the defence. If the defence of justification is successfully raised, the fact that the libel was published maliciously will be of no moment. There was evidence which remained uncontroverted that the appellant did not support the quest of the respondent to be appointed the Shaba but rather supported his opponent. PW4’s evidence was that the respondent was angered by this and set out to destroy the appellant by the libelous publication. Issue 5 is resolved in favour of the appellant.
ISSUE 6:
Whether an appellate court seized of the matter is competent to evaluate the whole evidence and award damages claimed in the lower court. In his brief, it was argued for the appellant that the lower court erred in failing to proceed to assess the damages that would have been awarded to the appellant had his case been successful contrary to the general principle of law as stated in the following cases: Oyerogba v. Ido Local Government (2001) FWLR (Pt. 36) 928 @ 948 A-B: Ifeanyi Chukwu Ltd v. Soleh Boneh Ltd (2000) 27 FWLR 2046 @ 2086: Alhaji Y. A. O. Bello v. The Diocesan Synod of Lagos & 4 Ors (1973) All NLR 196 @ 222. The idea behind the principle is that in the event that the appeal is successful, it obviates the necessity of sending the case back to the trial court to assess the damages to be awarded. However, the cases hold that where the trial court failed to heed the advice, there is nothing debarring the appellate court from assessing the damages to be awarded. Mr. Afolabi consequently urged us to evaluate the whole evidence and award damages claimed by the appellant in the lower court as the failure of the trial Judge to do so have occasioned miscarriage of justice. In his brief of argument, Mr. Olagunju for the respondent submitted that since the appellant in his evidence stated that he lost nothing by the alleged libel, he was consequently not entitled to the award of damages since award of damages is meant to compensate. Mr. Afolabi however countered that the award of damages in libel is presumed by law and that the plaintiff need not establish any actual damage.
The law is that a plaintiff in an action for libel need not allege or prove that he has suffered damage. If he has been libeled without lawful excuse or justification, damages follow and the damages awarded is general damages. See Guardian Newspapers Ltd & Anor v. Ajeh (2011) LPELR-SC 234/2005: Oduwole & Ors v. West (2010) 1 LPELR – SC 173/2003:
“It must be reiterated here that every libel is of itself a wrong in regard to which the law imputes general damages. If a plaintiff proves that a libel has been published of him without legal justification, his cause of action is complete. He needs not prove that he has suffered any resulting actual damage or injury to his reputation for such damage is presumed.” Per Fabiyi J.S.C

In the case of Chief F.R.A. Williams v. Daily Times of Nigeria Ltd (1990) ALL NLR 1 @ 25, the Supreme Court held that “the assessment of damages in libel actions is usually subjective so that an award in an unrelated case cannot be a useful guide….”
See also Offoboche v. Osoia L.G. (2001) 16 NWLR (Pt. 739) 458 @ 492 A-H.
More detailed particulars as to the guiding principles and criteria in the assessment of damages in libel cases were set out in the case of Benue Printing & Publishing Corporation v. Alhaji Umaru Gwagwada (1989) 4 NWLR (Pt.116) 439 @ 454 B-C. 455 G. the courts are therein enjoined to take into account the following factors:
1. Recklessness of the publication
2. Plaintiff’s standing in the society
3. Failure of the defendant to amend
4. The whole conduct of the defendant from the time the libel was published down to the moment of the court’s verdict
5. Any anticipatory pecuniary loss or social disadvantage and natural injury to the feelings of the plaintiff
6. The decline in the purchasing value of the naira
There is no doubt that the publication of this libel has caused severe damage to the psyche and reputation of the appellant. The respondent led no evidence to disclose anything in the conduct of the appellant to justify the defamation. So much emphasis was placed in the statement of the respondent that the appellant is a sojourner in Daja at the expense of the contents of the libelous letter, asking the Secretary, Akoko North Local Government Oke-Agba, Akoko to whom the letter was addressed to call the appellant to order before he precipitates a break-down of law and order in the area. The letter was copied to Oba Julius Kehinde, the Otudaja of Daja and the Divisional Police Officer Nigerian Police Station Oke-Agba. The appellant gave uncontradicted evidence that he was arrested by Inspector Olumoko at Daja Ajowa on 12/4/97 and taken to the Police Station Oke-Agba for questioning. He was scolded, insulted, humiliated and detained. He was asked to present a surety to bail him because of the damaging remarks made against him by the respondent. The then Police officer Mr Obashe told him that he should as a sojourner desist from dabbling in chieftaincy matters in the area.
The appellant disclosed during cross-examination that he was born on the 24th of November 1925. In 1997 when the incident took place the appellant was 72 years. He is now 86 years. He has had to live under the agony of possibly departing this world dubbed a sojourner in Daja, a town where he was born, and lived all his life with his ancestors down to his great grand father. The respondent obviously intended to cause maximum damage to the character, reputation and in fact the whole purport of the life of the appellant, hence the copying of the letter to the Oludaja, the man responsible for approval and conferment of chieftaincy titles to indigenes of Daja. The intention obviously is to ensure that the appellant was never considered for any chieftaincy title. Throughout, the respondent arrogantly stood by his libelous publication, showed no remorse whatever and did not apologize or attempt to retract the offending publication. This situation calls for an award of damages of no less than one million naira but taking into consideration the status of the respondent as a retired employee of N.E.P.A, I believe the sum of N500, 000 (five hundred thousand naira) is appropriate in the circumstances.
In the absence of any direct oral evidence of any other witness or any other legally admissible evidence in support of the respondent’s contention that the appellant was a sojourner in Daja, it was just not possible to dub the appellant a sojourner in Daja and thereby displace a family that have lived in Daja for centuries and participated as full indigenes enjoying all the rights and privileges of indigenes of Daja by mere reliance on the inadmissible exhibit P8.
In the final result, this appeal is meritorious and is allowed. The judgment of the High Court of Ondo State Ikare Judicial division in suit no. HIK/2/98 delivered on 22/2/05 is hereby set aside. The appellant’s claim succeeds in respect of libel based on the letter dated 4/4/97 published to sundry persons. The sum of N500, 000 (five hundred thousand naira) is awarded as damages against the respondent. The appellant is entitled to costs of the appeal which I assess at N50, 000.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: I have had the benefit of reading before now, the judgment of my learned brother, C. E. Iyizoba, JCA just delivered. I agree that the appeal is meritorious and ought to be allowed.
Whenever a defence of justification or qualified privilege is raised in a case of libel, the party raising the defence is understood to be admitting that he published the words complained of but contends that the words published are true and he is therefore not guilty of defamation. At common law, under a plea of justification, the defendant must prove the truth of all the material statements in the libel. There must be a substantial justification of the libel. See: DUMBO & ORS. V. IGBUGBOE (1983) ALL NLR 37; (1983) 2 SC 14; AYENI V. ADESINA (2007) ALL FWLR (370) 1451 @ 1471 E.
In the instant case in defence of the words complained of in Exhibit P8 and pleaded in paragraphs 4 and 5 of the appellant’s 2nd Amended Statement of Claim to the effect that the appellant is a sojourner at Daja and has no business in the affairs of the community, the respondent pleaded and relied on a petition addressed to the Chieftaincy Committee of Ajowa Local Council and signed by certain Chiefs of Oyagi Quarters, Daja-Oyagi Ajowa claiming that the appellant’s father is not a native of Daja and making reference to the proceedings of a civil Suit No, 15/35: Josiah Shaba (m) on behalf of himself and his family, 30 males of Daja IKARAM Group V. THE OLOJO of Ojo on behalf of Joel Yaya and the people of ARIGIDI GROUP to the effect that in the said suit the appellant’s father testified that his family came from Eje Village and not Daja or Ojo.
The learned trial Judge relied heavily on this document in making his findings and upholding the defence of justification.
The Ajowa Local Council is an official body. Any document forming the acts or records of such a body, including correspondence with the chieftaincy committee of the council is a public document within the meaning of Section 102 (a) (ii) of the Evidence Act 2011. By Section 105 of the Act only certified true copies of public documents are admissible to prove the contents thereof.
Furthermore, the proceedings in Suit No. 15/35 reproduced in part in Exhibit P8 also qualify as a public document. The actual proceedings duly certified and tendered in court are the only admissible proof of those proceedings.
The learned trial Judge therefore erred in relying on the said petition to find the plea of justification properly made out. The failure to tender a certified true copy of the petition and the court proceedings, particularly as the respondent was not a party to either process knocked the bottom off the defence of justification,
There is no gainsaying the fact that one of the most damning allegations that could be made against a person is to challenge his pedigree or his roots. It goes to the very foundation of his identity as a member of a particular community, I therefore agree entirely with my learned brother in the lead judgment that the words complained of were libelous of the Appellant and that the respondent failed to prove that the words were true.
The law is settled that libel is actionable per se without proof of special damage. The law will presume that some damage flows from the publication of the libel in the ordinary course of things from the mere invasion of the complainant’s absolute right to reputation. See: EDEM V. ORPHEO NIG. LTD. (2003) 13 NWLR (838) 537; RATCLIFF V. EVANS (1892) 2 QB 524.
Relying on the case of Cross River State Newspaper Corporation V. Oni & Ors. (1995) 1 SCNJ 218 @ 239, the Supreme Court in EDEM V. ORPHEO NIG. LTD (supra) at 558 E G held that every libel is itself wrong in respect of which the law imputes general damages. It was held that if a plaintiff proves that a libel has been published against him without legal justification, his cause of action in tort is established and he need not prove that he has suffered any resulting actual damage or injury to his reputation as such damage is presumed by the law.
For these and the more comprehensive reasons set out in the lead judgment, I also allow this appeal, I concur with the consequential orders as contained in the lead judgment including the award of costs.

MOORE A. A. ADUMEIN, J.C.A: I read before now the judgment just delivered by my learned brother – IYIZOBA, JCA. The issues raised in this appeal were adequately dealt with and effectively resolved. I have nothing to add to or remove from the lead judgment.
I also allow this appeal for being meritorious. I abide by all the consequential orders in the leading judgment.

Appearances

ENITAN AFOLABI ESQ For Appellant

AND

R.A. OLAGUNJU ESQ For Respondent