BCC TROPICAL LTD v. THE NEWSGATE COMMUNICATIONS LTD & ANOR (2020)

BCC TROPICAL LTD v. THE NEWSGATE COMMUNICATIONS LTD & ANOR

(2020)LCN/14617(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Thursday, September 24, 2020

CA/J/366/2018

RATIO

PLEADINGS: THE CONTENTION THAT THE PROCESS BY WHICH A CLAIMANT COMMENCED OR ORIGINATED HIS ACTION WAS NOT PREPARED, ISSUED OR SIGNED BY A LEGAL PRACTITIONER CALLED TO THE BAR AS DEMANDED BY THE LEGAL PRACTITIONERS ACT IS ONE THAT CHALLENGES THE JURISDICTION OF THE COURT AND SO CAN BE RAISED AT ANY STAGE IN THE PROCEEDINGS AND BY ANY MEANS INCLUDING JUST ORALLY.

The point must be made that, it is now well settled in our jurisprudence that the contention that the process by which a claimant commenced or originated his action was not prepared, issued or signed by a Legal Practitioner called to the Bar as demanded by the Legal Practitioners Act is one that challenges the jurisdiction of the Court and so can be raised at any stage in the proceedings and by any means including just orally. That much has been settled by a very long line of cases including SLB Consortium Ltd v. NNPC (2011) 9 NWLR (PT. 1252) 317, F.B.N. Plc v. Maiwada (2013) 5 NWLR (PT 1348) 444, Ministry of Works & Transport, Adamawa State v. Yakubu (2013) 6 NWLR (PT 1351) 481 @ 496, Alawiye v. Ogunsanya (2013) 5 NWLR (PT 1348) 570 @ 617-618, Braithwaite v. Skye Bank Plc (2013) 5 NWLR (PT 1346) 1. In all of these cases, this issue of nullity of the writ of summons by reason of failure of legal practitioner enrolled to sign it was only raised for the first time in the apex Court, and even then, only by way of preliminary objection by the defendant/respondent in the appeal.
In the instant case, appellant’s writ, which the trial judge held was issued by a firm of Legal Practitioners instead of a named legal practitioner enrolled to practice law, stated on its face thus:
This writ was issued by Messrs Okey Akobundu & Co., Legal Practitioners…
Even in the light of this endorsement alone I find it difficult to fault the finding of the trial Judge. The word ‘issued’ employed by appellant here to announce who issued its writ is the past participle of the verb ‘issue,’ which means to produce or provide something official, to make known formally or to give something to somebody especially officially. Particularly in law, to issue means to start a legal process against somebody especially by means of an official document, for example, to issue a writ against somebody (See Cambridge Advanced Learners Dictionary and Oxford Dictionary). In other words, by appellant’s own admission, it was the Law Firm of Okey Akobundu & Co., and not a lawyer enrolled in the Supreme Court of Nigeria to practice law and sign writ of summons, that prepared, made and signed the said writ of summons. That makes the writ incompetent and a nullity. See again the cases of SLB Consortium Ltd v. NNPC, F.B.N. Plc v. Maiwada, Ministry Of Works & Transport, Adamawa State v. Yakubu, Alawiye v. Ogunsanya, Braithwaite v. Skye Bank Plc cited earlier.
Incidentally, too, as appellant also rightly conceded in its brief of argument, Order 5 Rule 1 of the Civil Procedure Rules of the Plateau State High Court empower only a claimant’s solicitor, and the judge or other officer of the Court where the plaintiff does not have a solicitor or is illiterate, to complete writ of summons. That Rule reads:
A writ of summons shall be issued by a Judge, or an officer of the Court empowered to issue summons, on application. The application shall ordinarily be made in writing by the plaintiff’s solicitor by completing from 1 in the Appendix to these Rules, but the Judge or other officer as aforesaid, where the applicant for a writ of summons is illiterate, or has no solicitor, may dispense with a written application and instead himself record full particulars of an oral application made and on that record a writ of summons may be prepared, signed and issued.
Sections 2(1) and 24 of the Legal Practitioners Act, Laws of the Federation of Nigeria 2004 further stipulate that:
S.2 “Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if and only if, his name is on the roll”
S.24. “In this Act, unless the context otherwise requires, the following expressions have the meanings hereby assigned to them as respectively, that is to say – ‘Legal Practitioner’ means a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.’
Here it has not been suggested even remotely that the plaintiff/appellant prepared its writ of summons by itself or that the trial Judge or other officer of the Plateau State High Court prepared same for it. On the contrary, the writ confesses on its face that it was issued (prepared) by Okey Akobundu & Co., a firm of solicitors who is not a human being and so could not have been enrolled as Legal Practitioner within the meaning of the Legal Practitioners Act to practice as barrister and solicitor to prepare let alone ‘issue’ Court processes in that capacity. It follows therefore, that appellant’s writ of summons, if I may borrow the words of Muntaka-Coomassie, J.S.C., in Ministry of Works & Transport, Adamawa State v. Yakubu (2013) 6 NWLR (PT 1351) 481 @ 494 para D-E, was ‘inchoate, fundamentally defective, incompetent, legally inexistent and already ‘dead at the point of filing.’ Such a process that is already ‘dead at point of filing’ cannot be resuscitated by the signature of a Judge or other authorized officer of the Court subsequently placed on it. In any case, the said writ of Summons contained at page 5 of the Records shows that the column for the signature of the Judge or Authorized Officer, both of who Mr. Obende for appellant argues are the appropriate officers to sign writs, is even blank. The signature of the Registrar only appears on the next page of the Writ (page 6 of the records), and it is only to attest to the fact that a sufficient affidavit in verification of the writ to authorize its sealing was produced to the Registrar.
The decisions of this Court in Eco International Bank Plc v. Nigeria Union of Local Government Employees, Jalingo LGC & Anor (2014) LPELR-24171 (CA) p. 29 and Panalpina World Transport Holding AG. v. Ceddi Corporation Limited & Anor (2011) LPELR-4827 p.45-46 and even that of the Supreme Court in Williams v. Adold/Stamm International (Nig.) Ltd (2017) 6 NWLR (PT 1560) 1 @ 19-20 (SC) cited by Mr. Obende for appellant are also distinguishable from the facts of this case. In none of those cases did the summons commencing them confess like the instant one that they were issued by a law firm. Particularly with the Supreme Court’s decision in Williams v. Adold/Stamm International (Nig.) Ltd, there was on the writ of summons in that case the handwritten name of Chief Ladi Williams (SAN) on top of his typewritten name as the person who issued it, thus satisfying the stipulations of the apex Court in the earlier case of SLB Consortium Ltd v. NNPC (2011) ALL FWLR (PT 583) 1902 @ 1916 (Rhodes-Vivour, J.S.C.) that the signature of counsel may be ‘any contraption.’
Mr. Obende also tried to argue that the statement of the law on the issue by Rhodes-Vivour, JSC, in SLB Consortium Ltd v. NNPC (supra) regarding the correct way to sign Court processes as reproduced by the trial judge in his judgment is not strict but give room for reasonable manoeuvre. Counsel is incorrect, for on the contrary, the apex Court in its more recent decision of GTB Plc v. Innoson Nigeria Ltd (2017) 16 NWLR (PT. 1591) 181 @ 198-199 (Eko, JSC, in lead judgment) had this to say on facts that were very similar to the situation here:
“The processes had on them at the signature column a signature that cannot be ascribed to any of the four persons, including the names of Prof. J.N.M. Madugha, FCILS, FCAA; Dr, N.J. Maduike-Ekwe, Ph.D; E.C. Ofime. Esq., LL.B and C. Dimazoro – Okeke (Mrs.) LL.M who apparently are legal practitioners. The same scenario was repeated on the written address filed on 21st June, 2016 along with the further counter – affidavit No.2 – filed on the same date. Relying on SLB Consortium v. NNPC (2011) 9 NWLR (Pt.1252) 317 at 336 -337. Mr. Olorundare, SAN, of counsel to the appellant had strongly urged that the said process are incompetent and should be struck out.
“It is trite that it is the seal or signature of the author on a document that authenticates the document. A legal document or process of Court must be settled or signed by either the legal practitioner of the choice of litigant or the litigant himself.
“The disputed processes were purportedly settled or signed by a legal practitioner whose identity is unknown. Where ex facie a Court process it is uncertain if the process was signed by the litigant or the legal practitioner representing him, the process is incompetent. Court processes must either be signed by the litiganthimself or by the legal practitioner retained by him. A Court process that purports to be settled by a legal practitioner must, as a requirement of statute, have not only the signature of the legal practitioner but also his name clearly shown and indicating that the signature is his. Per BOLOUKUROMO MOSES UGO, J.C.A.

RATIO

PLEADINGS: ON WHETHER DAMAGE NEED BE PROVED IN LIBEL CASE, PUBLICATION AS A PROOF OF LIBEL AND ITS JUSTIFICATION.

With all due respect, I am far from convinced that any of these reasons or even the additional ones advanced by respondents supports his decision. Incidentally, I had in my widely reported judgment of Western Publishing Company Limited & Anor v. Dr. Kayode Fayemi (2015) LPELR-24735 (CA); (2016) ALL FWLR (PT 821) 1400; (2017) 13 NWLR (PT 1582) 218 dealt with most of these issues. On whether damage need be proved in libel case, it has to be realized that the tort of libel is actionable per se upon publication so there is no need for proof of damage. For this reason, even if a claimant in a libel case avers to actual damage to his/her reputation but fails to prove it as respondent contends was the case here because appellant’s two witnesses testified to its good character, the claimant will still be entitled to damages. This position of the law is too settled to admit of a contrary argument. Winfield & Jolowicz in their book, Tort, 18th Edition (by W.V.H. Rogers) at Para. 12-5, p. 572 stated this position of the law thus:
In cases of libel (and in some cases of slander) the claimant can recover general damages for the injury to his reputation without adducing any evidence that it has in fact been harmed, for the law presumes that some damage will arise in the ordinary course of things. If, of course, the claimant in a libel case contends that actual damage has been suffered he can plead it and prove if he can, but even if he breaks down on this point he may still be able to recover general damages.
See also Halsbury’s Laws of England, 4th edn, Vol. 28, where it is also stated that:
In actions of libel and of slander for words which are actionable per se it is not necessary for the plaintiff to allege in his statement of claim that he has suffered actual loss or damage. However, if in such actions he wishes to recover special damage, he must allege and prove it. If he fails to prove such damage, he still has the right to recover general damages.
See also Gatley on Libel and Slander, 18th edition, at Para. 34.50 where the learned authors, quoting Bowen L.J in Ratcliffe v. Evans (1982) 2 Q.B. 524 @ 528 and Lord Goddard L.J in Scottish Co-operative v. Odhams Press Ltd (1940) 1 K.B. 440 @ 461, had this same thing to say thus:
Damage presumed: In cases of libel or slander actionable per se, the claimant need not prove actual damage, for:
‘The law presumes that some damage will flow in the ordinary course of things from the mere invasion of his absolute right to reputation.’ Per Bowen L.J.
‘There is no obligation on the plaintiffs to show that they have suffered damage ……. In every case (a plaintiff) is entitled to say that there has been a serious libel upon him, that the law assumes he must have suffered damage, and that he is entitled to substantial damages.” Per Lord Goddard L.J.
McGregor on Damages, 18th edition, at Para. 45.007, also confirms it thus:
Certain damage may be inferred or presumed: this is particularly so with non-pecuniary losses. Thus by showing serious personal injury to the claimant, it may be inferred that pain and suffering resulted. More technically, damage is sometimes said to be ‘presumed’, particularly in cases involving injury to reputation. In defamation the Court is entitled to award substantial damages although proof of damage is not produced.
And after citing several cases where this was done, the learned authors stated further as follows in Para. 45.008.
In all these varied cases such inferences of damage may be regarded as legal presumptions operating in the claimant’s favour, to some extent obviating the necessity of production of evidence of damage by him.
This state of the law has been confirmed by the Supreme Court of Nigeria too. In fact in Ejabulor v Osha (1990) 5NWLR (PT. 148) 1 at p.15 (para H) the apex Court in dismissing similar arguments that proof of actual damage to reputation is a sine qua non to success in a libel action said:
“…questions relating to proof of damages are totally alien to an action for libel.”
The apex Court reaffirmed this settled principle of law in Oduwole v. David West (2010) ALL FWLR (PT 532) 1634 at pages 1657-1658 (Fabiyi, J.S.C), saying that:
“It must be reiterated here that every libel is 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.”
Publication: That takes me directly to the lower Court’s decision, and respondents’ arguments of failure of appellant to prove publication of the libelous document because appellant, according to them, failed to call a third party other than its Chief Executive Officer and Managing Director, PW1 (even as it also called PW2), so publication of the defamatory matter as known in the law of libel was not proved. Again, this reasoning loses sight of the type of publication involved here – a publication in a news magazine. For purposes of publication to a third person(s), libelous matter contained in a magazine like that of respondents distributed in the news media or on the Internet is different from publication of other documents as was in Nsirim v. Nsirim (1990) 3 NWLR (PT. 138) 285 cited by the lower Court and Respondents’ counsel. In respect of publication in the news media and other such cases, there is a presumption, and inference, that publication was brought to the attention of a third person, therefore a plaintiff in such a case ordinarily need not prove publication, the onus rather being on the defendant to first rebut the presumption. That much is clear from the following commentary in Gatley on Libel and Slander, Ninth Edition, at Paragraph 6.9, p. 134: “The fundamental principle is that the matter must be communicated to a third party in such a manner as to be capable of conveying the defamatory imputation about the plaintiff. However, it is not necessary in every case for the plaintiff to prove directly that the words were brought to the actual attention of some third person in this sense. If he proves facts from which it can be inferred that the words were brought to the attention of some third person he will establish a prima facie case. This is particularly obviously so where the matter is contained in a book or distributed in the news media or on the Internet, where in practice it would be impossible to rebut the inference, and in such a case it would seem that the presumption of publication would be impossible to rebut.”
Clerk & Lindsell on TORTS, 16th Edition (Sweet & Maxwell) also projected the same point, saying at Paragraph 21-47, page 1118, of their book that:
It is by no means necessary for a plaintiff in all cases to prove directly that the defamatory matter was brought to the actual knowledge of anyone. If he makes it a matter of reasonable inference that such was the fact, he establishes a sufficient prima facie case.
Winfield & Jolowicz on Tort, 18th Edition, at page 594 also confirms this, too, saying, at Paragraph 12-12, that:
Where defamatory material is contained in a newspaper or book it will be presumed that a significant number of readers read the offending passages.
The trial judge was therefore in error when he relied on failure of appellant to call a third person beside PW1 and 2 in dismissing appellant’s case. In any case, assuming, but without conceding, that proof of publication of that offending publication in respondent’s news magazine to an identifiable third person was necessary, the evidence of PW2 who described himself as an associate of the appellant that read it suffices. And contrary to respondents’ further contention on need for pleading of PW2 as one such associate, appellant sufficiently pleaded material facts to support PW2’s evidence given its pleading that the offensive publication was seen and read by their associates. That pleading covers PW2 as one associate of appellant; it was therefore up to respondents to apply at the trial for further and better particulars of the said associates of appellant, or even serve interrogatories on appellant, if they had any problem with that pleading. Having chosen to meet appellant’s case without asking for those particulars, respondents only have themselves to blame for whatever surprise they may have met at the trial: see Ezomo v. Oyakhire (1985) LPELR-1216 (SC) p. 9, (1985) NWLR (PT 2) 195 @ 201. P.W.2’s evidence was clearly covered by the facts pleaded, admissible in evidence and even on its own alone proved publication of Exhibit P2 to a third person. Defences of justification and fair comment and who bears the onus of their proof: A misdirection as to where the onus of proof lie in a case is a very serious matter and leads to miscarriage of justice, just as it also affects the way the Court approaches credibility of witnesses that testified before it: seeOnobruchere v. Esegine (1986) 1 NWLR (PT 19) 799; (1986) ALL N.L.R. 289; (1989) 2 S.C. 385; (1986) LPELR-2688 (S.C.) p.8-13; Okoye v. Nwankwo (2014) ALL FWLR (PT 756) 471 @ 595 – 500, (2014) LPELR-23172 (SC). Defendants/Respondents here pleaded the defences of justification and fair comment to appellant’s claim and the trial judge reasoned that they availed them because the onus was on it as claimant to show that the said defences did not avail respondents. Was he right? Did those defences actually avail respondents on the evidence on record? To sustain a defence of justification the facts alleged by defendant in his publication must be substantially true. It is also imperative that every material fact alleged must be justified by the defendant. Likewise, to justify a comment, the facts on which the comment is based must be proved to exist, thus putting it beyond doubt that the comment is well founded: see Clerk & Lindsell on Torts, 16th Edition at Paragraphs 21.61-63. I spoke on these two defences, too, in my judgment in Western Publishing Company Limited & Anor v. Dr. Kayode Fayemi (2015) LPELR-24735 (CA); (2016) ALL FWLR (PT. 821) 1400 @ 1448-1449; (2017) 13 NWLR (PT 1582) 218 @ 287-288 thus:
“First, on the plea of justification… the position of the law is properly stated by Bullen and Leake and Jacob’s Precedents of Pleadings, 12th Edition at p. 1179 as follows “A justification of the libel or slander on the ground of truth must be pleaded specially. It should not be pleaded without good reason to expect that it will be proved. It is the duty of counsel not to put a plea of justification on the record unless he has clear and sufficient evidence to support it (Associated Leisure Ltd v. Associated Newspapers Ltd [1970] 2 Q.B.450, per Lord Denning M.R. at 456). If it is pleaded upon insufficient grounds, the fact of the defendant’s thus persisting in the charge is evidence of malice and should be taken into account in estimating damages (Warwick v. Foulkes (1844) 12 M & W. 508.
“A plea of justification must be strictly proved at the trial. It is no defence that the libel had previously been published by another. That the defendant at the time of publishing it stated the source from which he received it, and then believed it to be true, is also no defence.
“As for the defence of fair comment, it is also important that the publisher gets his basic facts right and be ready to prove them. Here I wish to quote the law as stated by Lord Denning M.R. in London Artists v. Littler (1969) 2 QB 375 thus: “In order to be fair, the commentator must get his basic facts right. The basic facts are those which go to the pith and substance of the matter: see Cunningham-Howie v Dimbleby (1951) 1 KB 360,364. They are the facts on which the comments are based or from which the inferences are drawn – as distinct from the comments or inferences themselves. The commentator need not set out in his original article all the basic facts: see Kemsley v Foot (1952) AC 345; but he must get them right and be ready to prove them to be true. He must indeed afterwards in legal proceedings, when asked, give particulars of the basic facts: Burton v Board (1929) 1 KB 301; but he need not give particulars of the comments or the inferences to be drawn from those facts. If in his original article he sets out basic facts which are themselves defamatory of the plaintiff, then he must prove them to be true: and this is the case just as much after Section 6 of the Defamation Act, 1952, as it was before. It was so held by the New Zealand Court of Appeal in Truth (NZ) Ltd v Avery (1965) (NZLR 274), which was accepted by this Court in Broadway Approvals Ltd v. Odhams Press Ltd. (1965) 1 WLR 805. It is indeed the whole difference between a plea of fair comment and a plea of justification. In fair comment he need only prove the basic facts to be true. In justification he must prove also that the comments and inferences are true also.”
The onus of proof of these two defences, particularly that the basic facts of their publication are correct, was undoubtedly on respondents and not on appellant contrary to the thinking of the trial judge and Mr. Samchi for respondents. That much is clear. See Gatley on Libel and Slander, Ninth Edition, at Paragraph 11.3, p. 234 where it is said thus:
“Although the practice was only that the plaintiff alleged that the defendant published the matter ‘falsely’ it is clear that in England and other jurisdictions which follow the common law on this point, that a defamatory imputation is presumed to be false and that the burden is upon the defendant to show that it is substantially true.
See also Tort Law: Text and Materials, 3rd Edition, by Mark Lunney and Ken Oliphant, at p. 736 where it is again stated that:
A defendant may ‘justify’ a defamatory allegation by proving its truth in all material respects. Defamatory statements are presumed to be false and the burden of proving their truth lies on the defendant, contrary to the law’s general approach of placing the burden of establishing the principal elements of the cause of action on the claimant.
That also finds support in Section 140 of the Evidence Act of 2011 stating that:
When a fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
The trial judge was therefore on the wrong track and caused serious miscarriage of justice by putting the onus of proof on the appellant and held its case not proved simply because according to him its witness was uncertain about the number of seats it was to install, a position gleefully supported by respondents. It was clearly respondents’ duty to prove, and do so strictly, their defences of justification and fair comment for their publication of (1) existence of contract between appellant and Plateau State Government to build a 45,000 seat stadium, (2) that appellant was installing less than that number and so ‘swindling and cheating’ Plateau State Government, and (3) that whenever anyone raises the issue with appellant it bribes them with money. How were they supposed to go about that? The first step they ought to have taken in that regard is to tender the contract they asserted in their publication that “…..investigations revealed Plateau State Government and its Ministries of Urban Development and Sports signed a contract for a 45,000-seater…” A contract can only be signed on a document, so the said document has to be produced to support that assertion, parole evidence being not admissible. See Section 125 of the Evidence Act 2011 which says ‘All facts except the contents of documents shall be proved by oral evidence.’ See also Okpalugo v. Adeshoye (1999) 10 NWLR (PT 476) 77 @ 102 – 108 (S.C).
After producing that ‘signed’ document, they will then proceed to prove the second part of the same publication that alleged that “… the contractor [appellant] made arrangements for only 15, 000 seats in a bid to defraud the government.”
That is not all; they must also adduce credible evidence to prove the final part of the publication that “…the contractor doles out money to whoever raises an eyebrow over the project hence the reluctance of the Reporter to approach him for comments.”
Proof of all these very damaging allegations is strict and not matters for conjecture as the lower Court’s reliance on uncertainty in the number of seats appellant was said to have contracted to install suggested. At any rate if there was uncertainty in the evidence regarding the number of seats appellant was contracted to install, it simply means that respondents who alleged 45,000 seats and had the onus of proof of that allegation had failed to discharge the onus on them.
The truth, however, is that no serious attempt was made by respondents to prove these allegations let alone do so strictly. On the contrary, they rather defended the case both before the trial Court and even in this Court in the most wounding fashion by continuing to insist, albeit without evidence, that appellant is a cheat and swindler, lacked capacity and skill to execute the kind of project it undertook and was in the habit of throwing money at anyone that raises eyebrows about its said inglorious conduct. What was their source and inspiration for these statements? What others they claim had said earlier. As shown earlier, reliance on what others had published before one is no defence to a defamation action.
It is also preposterous to argue as respondents did that it was not proved that their said libelous publication, which directly referred to the contractor engaged by Plateau State Government in handling the completion of the abandoned old New Zaria Road Stadium complex, refer to appellant. It is after all undisputed fact that appellant is the sole contractor engaged by Plateau State Government for that project. In any case failure to prove reference of the publication to appellant not being one of the grounds for the lower Court’s dismissal of appellant’s case, respondents can only make that contention here if they first filed Respondent’s Notice in line with Order 9 Rule 2 of the Rules of the Court of Appeal 2016: see Orji v. Zaria Ind. Ltd (1992) 1 NWLR (PT 216) 124 @ 128 (SC); Kayili v. Yilbuk (2015) 7 NWLR (PT. 1457) 26 @ 86 (SC). The other argument of respondents that appellant being a company and not a natural person can only sue if its earnings were affected so its action was not maintainable even on that ground, for which they cited Duyile v. Ogunbayo & Sons Ltd (1988) 1 NWLR (PT 2) 601 @ 610-611, also suffers the same fate. That was not the trial judge’s reason for dismissing the action. But the fact is that Duyile’s case did not even decide that a company or corporate person can only maintain action for libel if it is shown that its earnings are injured. The narrow point that was decided in Duyile that may have remotely related to respondents’ contention was the plaintiff’s, Ogunbayo & Sons Ltd’s, claims for damages for ‘natural grief, injury to its feelings and social advantage’ which the trial Judge also awarded ₦50,000.00 each. It is that award alone this Court set aside and the apex confirmed and commented upon that a company not being a natural person is incapable of pain, grief and feelings and so cannot be awarded such loses in a defamation action. Baring that, it is a well-settled position of the law that a company, or corporate person, can maintain an action for libel affecting its business and trade, and to succeed in such action it does not even have to prove any special damage suffered by it. See South Hutton Coal Co. v. North Eastern News Association Ltd (1894) 1 QB 133 148 where it was said (Kay, L.J.) that:
“I am therefore of the opinion that a trading corporation may sue for libel calculated to injure them in respect of their business, and may do so without any proof of damage general or special.”
The same point was confirmed in D & L Caterers Ltd and Jackson v. D’Ajou (1945) KB 364 @ 361, with Du Parq, L.J., saying:
“A company cannot sue either for libel or for slander unless it is defamed in the way of its business. In the case of a libel it is not necessary to prove special damage, and there can be no reason in principle why in the case of slander it should be necessary to prove special damage.”
All that was also accepted by the apex Court in the very case of Duyile v. Ogunbayo & Sons Ltd (supra) at p.611 paragraph H, with Belgore, JSC, in lead judgment saying that:
“What was awarded in the trial Court was not in the nature of special damages,it was strictly in conformity with the claim made for general damages and no special proof was needed.” Per BOLOUKUROMO MOSES UGO, J.C.A.

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

BCC TROPICAL LIMITED APPELANT(S)

And

1. THE NEWSGATE COMMUNICATIONS LIMITED 2. CHIEF AMBASSADOR NANYAH ANDREW DAMAN RESPONDENT(S)

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): Appellant, an engineering construction company and the undisputed sole contractor engaged by the Plateau State Government for the completion of the Plateau State Government-owned New Zaria Road Stadium, commenced the libel action the subject of this appeal against respondents for what it deemed their libelous publication against it in Volume 14, No. 122 of 1st to 5th March, 2014 edition of their Newsgate Magazine. The offensive publication was contained in the front and 16th Pages of the said Magazine. In the front page, the publication bore the caption “Contractor Swindles PLSG Stadium Contract,” and at page 16 under the same heading it said “Constructs 15,000 seats instead of 45,000.’

The publication continued at paragraph 2 of the same page 16 to say that:
“The Newsgate Magazine investigation revealed that the State Government and its representatives in the Ministries of Urban Development and Sports signed a contract for a 45,000 -seater stadium but the contractor made arrangement for only 15,000 seats in a bid to defraud the government.” (Italics mine).

It further asserted in paragraphs 3 and 7 of the same story that:
“The contractor handling the Zaria Road Stadium project might defraud the people of the State and indeed Nigerians to the tune of 30,000 unconstructed seats,” and that:
“…the contractor doles out money to whoever raises an eyebrow over the project hence the reluctance of the Reporter to approach him for comments.”

Appellant averred that the publication falsely and maliciously imputed dishonesty to it in its business activities; that it represented to the public that it was contracted by the Plateau State Government to construct a 45,000 sitting capacity stadium but was only constructing a 15,000 sitting capacity stadium and so out to cheat Plateau State Government to the value of 30,000 seats, and further that it was also in the habit of doling out money to whoever raised eyebrows on the issue. It said it was engaged by the Plateau State Government since December 2010 for the completion of the construction of the abandoned main bowl of the said New Zaria Road stadium and additional sporting facilities, with several pavilions and arena,

all within the complex known as and called the Jos New Zaria Road Stadium Complex; that the initial design of the seating capacity of the stadium was 27,000 to 28,000, and not the 15,000 published by the respondents; that it merely proposed to Plateau State Government to increase that capacity to 32,000 (not to the 45,000 published by the defendants) and to effect changes in the roofing structure. The entire spectator capacity of the stadium complex upon completion, it stated, is a targeted 44,000 and same is inclusive of the various sporting facilities which are part of the complex. Respondents, it complained, did not even verify from it or Plateau State Government the authenticity of their facts before they went to press and admitted so in the publication.

It claimed, too, that the publication exposed it to hatred, contempt and ridicule and injured it in its line of business, trade and calling both within and outside Nigeria; that its hard-earned reputation acquired over twenty years was subjected to unnecessary scrutiny by reason of respondents’ publication and caused it enormous damage from the moment it hit the newsstands; that some of its

associates and other clients not only called to confirm what was happening, even Plateau State Government questioned the innuendos contained in the publication as it related to its integrity and standing. It wrote to respondents for redress but they ignored its letter hence it commenced this action claiming (1) a declaration that the said publication was false and libelous of it; (2) that respondents be ordered to retract it and issue an apology to it on the same Newsgate Magazine and another National Daily for five consecutive days; (3) damages of One Billion Naira (N1,000,000,000.00) and (4) an order of injunction restraining respondents from further publishing or disseminating the said publication.

In their 12-paragraph amended statement of defence, respondents insisted that what they published of appellant is the truth, and in so far as it consists of expressions of opinion, it is fair comment made in good faith and without malice upon facts which are matters of public interest. That is even as they also admitted that phone calls their reporter put to the Plateau State Commissioner of Urban Development to verify Plateau State Government’s

position on the issue were not even successful as the Commissioner did not pick or return their calls. They were nevertheless emphatic in asserting that the contract awarded to appellant by Plateau State Government for the completion of the Zaria Road Stadium, Jos, was for the construction of 45,000 spectators’ seating capacity. They claimed that fact had been severally stated by both Plateau State Government officials and its representatives and even other private media.

As if to rub salt on injury, respondents went on to further aver in paragraph 8 of their statement of defence that:
a. Appellant did not have or possess the kind of work profile it claims and is challenged to prove that it has enviable board of directors, parties (sic) and associates all over the world who have heard and or read about the publication and adopted an attitude of extra diligence towards it, and
b. that they would contend at the trial that the entire Zaria Road Stadium project is ‘being handled with gross professional ineptitude and in a manner that portends incompetence, breach of approved standard requirements and dishonesty among others.’<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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At the trial, each side called two witnesses and tendered documents. The offending publication was tendered by PW1 as Exhibit P2.

Among the two witnesses called by respondents to establish their defences of justification (truth) and fair comment was a certain Mr. Nannim Hydro Jangtur (P.W.2), a civil servant with Plateau State Government. Mr. Jangtur who claimed he was formerly part of a team of technical supervisors headed by one Architect Sam Jatau engaged by Plateau State Government to supervise the stadium project incidentally admitted under cross-examination that (1) he knew that the head of the team speaks for the team, and crucially (2) that his conclusion that appellant was swindling Plateau State Government in the execution of the stadium contract was based on what he saw by merely passing by the stadium, and (3) that he was aware that Plateau State Government set up a Commission of Inquiry to look into contracts between 2007 to 2015 but he did not send any memorandum to that Commission about appellant’s conduct concerning the stadium contract in issue.

Upon close of testimony of witnesses, written submissions were made by parties

wherein respondents contended among others that appellant’s writ of summons was a nullity and the Court without jurisdiction to entertain it because the said writ was issued by a firm of legal practitioners instead of a legal practitioner enrolled at the Bar to practice law.

Judgment of the trial Court
In its judgment of 03.05.2018, the trial High Court of Plateau State (Dabup J.) first took on respondents’ said contention of the invalidity of appellant’s writ, upheld it and declared the writ of summons a nullity and the Court without jurisdiction to adjudicate on it.

On the merits of the case, it again reasoned that appellant did not make out a case of libel. It anchored this conclusion on the reasoning, first, that publication of libelous material to a third party is essential to success of libel action but appellant failed to plead or call any such third person. That is even as his Lordship also conceded that there is an exception to the rule of proving and pleading publication to a named third person where the publication takes the form of a magazine, newspaper, post card or book.

Second, that it was inclined to agreeing with respondents that there was discrepancy or uncertainty in the evidence of appellant regarding the seating capacity of the Plateau Stadium and the seats it was to install and for that reason, respondents’ plea of justification availed them.

Third, that for the same reason of discrepancy in the evidence of appellant regarding the seats to be constructed in the stadium, plea of fair comment on matters of public interest also availed respondents.

Fourth and finally, that appellant had the onus of establishing that the publication in issue bore a defamatory meaning to the persons to whom it was published but failed in that respect since PW2 (its only other witness besides its Managing Director) testified that he did not believe the publication because he knew appellant very well.

APPEAL
Appellant is dissatisfied with that decision hence this six-ground appeal for which it formulated and sought our determination of the following three issues:
1. Whether the trial Judge afforded it fair hearing when it held that its suit was incompetent.
2. Whether the trial Judge was right in holding that the publication in issue

was not defamatory of it.
3. Whether it proved its claim to be entitled to judgment.
Respondents on their part re-couched the same three issues thus:
1. Having regard to the nature of challenge to the competence of the appellant’s Writ of Summons and the basis of the lower Court’s decision in respect thereof, whether appellant can be righty said to have being denied any right to fair hearing.
2. Whether the lower Court was not right in holding that appellant has not been defamed by the publication.
3. Whether the lower Court was not right in finding that appellant had failed to establish its entitlement to the reliefs sought.

Clearly, the only live issues in this appeal are issues 1 and 2 of both parties, their common issue 3 being covered, in my opinion, by issue 2 which asks whether the trial Judge was not right in finding that the publication in issue was not defamatory of appellant. I shall therefore adopt the said two issues of parties in deciding this appeal.

Issue 1: VALIDITY OF APPELLANT’S WRIT OF SUMMONS
On this issue, Mr. S. S. Obende on appellant’s behalf argued that the trial judge

breached appellant’s right to fair hearing when he failed to restrict himself to what counsel called the narrow issue raised by respondent’s counsel in her main address, namely, whether appellant’s writ of summons was signed by its firm of solicitors Okey Akobundu and Company. Counsel submitted that the Judge strayed outside that ‘narrow issue’ to determine the validity of the writ on non-disclosure of name of counsel that signed it by marking or ticking his name on the writ, which issue he said was only raised by respondents’ counsel in his reply on points of law so appellant never had the opportunity of responding to it. In any case, learned counsel further argued, going by this Court’s decision in Ogunsakin & Anor v. Ajidara & Anor (2007) LPELR-4733 (CA), issue of improper or non-signing of writ of summons by a legal practitioner can only be raised by way of motion on notice and not in a final address as respondents did. He added that, at any rate, since the lower Court found that there was a signature on the writ, it suffices for its validity given Order 5 Rule 15 of the Rules of the High Court of Plateau State

State stating that issue of a writ takes place upon its being signed by a Judge or other officer of the Court authorized to sign writs of summons. Relying on this Court’s decisions in Eco International Bank Plc v. Nigeria Union of Local Government Employees, Jalingo LGC & Anor (2014) LPELR-24171 (CA) P. 29, Panalpina World Transport Holding AG. v. CEDDI Corporation Limited & Anor (2011) LPELR-4827 P.45-46 and the Supreme Court’s decision in Williams v. Adold/Stamm International (Nig.) Ltd (2017) 6 NWLR (PT. 1560) 1 @ 19-20 (SC), counsel pointed out that there are names of five legal practitioners under the signature on the writ in question and that suffices so the lower Court was wrong in declaring it a nullity on grounds of non-disclosure of counsel who signed it.

In answer, Mr. S.D. Samchi for respondents argued that, contrary to the contention of appellant, the lower Court’s reason for nullifying the writ of summons of appellant was not for failure of appellant’s counsel to mark or tick his name but because the writ admits on its face that it was issued by the law firm of Messrs Okey Akobundu & Co; that the same writ

also bore no signature of a legal practitioner as required by Form 1 of the Appendix to the Rules of the High Court of Plateau State. Counsel who also defended respondents in the lower Court said his argument for respondents before the lower Court was not also on identity of the person who signed the Writ but rather about who counsel represented in line with the decisions in Yakubu v. FMBN (2015) 11 NWLR (PT 1470) 232 and SLB Consortium Ltd v. NNPC (2011) 9 NWLR (PT 1252) 317. That contention, he submitted and cited in support the cases of Yakubu v. FMBN supra, Petrojessica Enterprises Ltd v. Leventis Trading Co. Ltd (1992) 5 NWLR (PT 244) 675 @ 693 and Madukolu v. Nkemdilim (1962) 1 ALL NLR 587, goes to the jurisdiction of the Court to entertain the action so it could be raised at any time, anyhow and even by the Court on its own. The decision of this Court in Ogunsakin & Anor v. Ajidara & Anor (2007) LPELR-4733 (CA) cited by Mr. Obende for appellant, he thus submitted, was distinguishable and in fact inapplicable.

Resolution of issue
Now, this is how the trial judge reasoned in declaring appellant’s writ of summons a nullity:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“A close look at the document shows the names of five counsel listed below the signature, but it is not clearly indicated who signed and there is no indication below it as to who counsel represents. The case of Yakubu v. F.M.B.N Ltd (supra) followed the decision of the Supreme Court in SLB Consortium Ltd v. NNPC (supra) per Rhodes Vivour, JSC, who held that “….once it cannot be said who signed a process, it is incurably bad.” He went on to give the following guidelines on how processes filed in Court ought to be signed:
(1) The signature of counsel which may be in any contraption.
(2) The name of counsel clearly written.
(3) Who counsel represents.
(4) Name and address of legal firm.
“While it is conceded to the plaintiff that the writ of summons bears a signature, it is however unascertainable whose signature it is but more particularly who counsel represents. Order 5 Rule 1 of the extant Rules of this Court makes provisions for what is to be contained in a writ to be issued in accordance with Form 1 in the Appendix to the rules. Part 4.0.3 of the defendants’ written address has put this

requirement succinctly.
“In this vein, the submission of the defence counsel inclusive the authorities relied upon is upheld to the extent that the writ in this suit is not signed by a named legal practitioner, but issued by a law firm of Messrs Okey Akobundu & Co. as shown on line 1 of page 5 of the plaintiff’s writ of summons.
“Having upheld the submission of defendants in respect of issue 1, the writ is subsequently and same is declared to be a nullity. Put another way, the originating process (writ) initiating this suit is found to be incompetent, thus the Court lacks jurisdiction to adjudicate on it.”
The point must be made that, it is now well settled in our jurisprudence that the contention that the process by which a claimant commenced or originated his action was not prepared, issued or signed by a Legal Practitioner called to the Bar as demanded by the Legal Practitioners Act is one that challenges the jurisdiction of the Court and so can be raised at any stage in the proceedings and by any means including just orally. That much has been settled by a very long line of cases including SLB Consortium Ltd v. NNPC

(2011) 9 NWLR (PT. 1252) 317, F.B.N. Plc v. Maiwada (2013) 5 NWLR (PT 1348) 444, Ministry of Works & Transport, Adamawa State v. Yakubu (2013) 6 NWLR (PT 1351) 481 @ 496, Alawiye v. Ogunsanya (2013) 5 NWLR (PT 1348) 570 @ 617-618, Braithwaite v. Skye Bank Plc (2013) 5 NWLR (PT 1346) 1. In all of these cases, this issue of nullity of the writ of summons by reason of failure of legal practitioner enrolled to sign it was only raised for the first time in the apex Court, and even then, only by way of preliminary objection by the defendant/respondent in the appeal.
In the instant case, appellant’s writ, which the trial judge held was issued by a firm of Legal Practitioners instead of a named legal practitioner enrolled to practice law, stated on its face thus:
This writ was issued by Messrs Okey Akobundu & Co., Legal Practitioners…
Even in the light of this endorsement alone I find it difficult to fault the finding of the trial Judge. The word ‘issued’ employed by appellant here to announce who issued its writ is the past participle of the verb ‘issue,’ which means to produce or provide something

official, to make known formally or to give something to somebody especially officially. Particularly in law, to issue means to start a legal process against somebody especially by means of an official document, for example, to issue a writ against somebody (See Cambridge Advanced Learners Dictionary and Oxford Dictionary). In other words, by appellant’s own admission, it was the Law Firm of Okey Akobundu & Co., and not a lawyer enrolled in the Supreme Court of Nigeria to practice law and sign writ of summons, that prepared, made and signed the said writ of summons. That makes the writ incompetent and a nullity. See again the cases of SLB Consortium Ltd v. NNPC, F.B.N. Plc v. Maiwada, Ministry Of Works & Transport, Adamawa State v. Yakubu, Alawiye v. Ogunsanya, Braithwaite v. Skye Bank Plc cited earlier.
Incidentally, too, as appellant also rightly conceded in its brief of argument, Order 5 Rule 1 of the Civil Procedure Rules of the Plateau State High Court empower only a claimant’s solicitor, and the judge or other officer of the Court where the plaintiff does not have a solicitor or is illiterate, to complete writ of summons.

That Rule reads:
A writ of summons shall be issued by a Judge, or an officer of the Court empowered to issue summons, on application. The application shall ordinarily be made in writing by the plaintiff’s solicitor by completing from 1 in the Appendix to these Rules, but the Judge or other officer as aforesaid, where the applicant for a writ of summons is illiterate, or has no solicitor, may dispense with a written application and instead himself record full particulars of an oral application made and on that record a writ of summons may be prepared, signed and issued.
Sections 2(1) and 24 of the Legal Practitioners Act, Laws of the Federation of Nigeria 2004 further stipulate that:
S.2 “Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if and only if, his name is on the roll”
S.24. “In this Act, unless the context otherwise requires, the following expressions have the meanings hereby assigned to them as respectively, that is to say – ‘Legal Practitioner’ means a person entitled in accordance with the provisions of this Act to practice as a

barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.’
Here it has not been suggested even remotely that the plaintiff/appellant prepared its writ of summons by itself or that the trial Judge or other officer of the Plateau State High Court prepared same for it. On the contrary, the writ confesses on its face that it was issued (prepared) by Okey Akobundu & Co., a firm of solicitors who is not a human being and so could not have been enrolled as Legal Practitioner within the meaning of the Legal Practitioners Act to practice as barrister and solicitor to prepare let alone ‘issue’ Court processes in that capacity. It follows therefore, that appellant’s writ of summons, if I may borrow the words of Muntaka-Coomassie, J.S.C., in Ministry of Works & Transport, Adamawa State v. Yakubu (2013) 6 NWLR (PT 1351) 481 @ 494 para D-E, was ‘inchoate, fundamentally defective, incompetent, legally inexistent and already ‘dead at the point of filing.’ Such a process that is already ‘dead at point of filing’ cannot be resuscitated by the

signature of a Judge or other authorized officer of the Court subsequently placed on it. In any case, the said writ of Summons contained at page 5 of the Records shows that the column for the signature of the Judge or Authorized Officer, both of who Mr. Obende for appellant argues are the appropriate officers to sign writs, is even blank. The signature of the Registrar only appears on the next page of the Writ (page 6 of the records), and it is only to attest to the fact that a sufficient affidavit in verification of the writ to authorize its sealing was produced to the Registrar.
The decisions of this Court in Eco International Bank Plc v. Nigeria Union of Local Government Employees, Jalingo LGC & Anor (2014) LPELR-24171 (CA) p. 29 and Panalpina World Transport Holding AG. v. Ceddi Corporation Limited & Anor (2011) LPELR-4827 p.45-46 and even that of the Supreme Court in Williams v. Adold/Stamm International (Nig.) Ltd (2017) 6 NWLR (PT 1560) 1 @ 19-20 (SC) cited by Mr. Obende for appellant are also distinguishable from the facts of this case. In none of those cases did the summons commencing them confess like the instant one that they were

issued by a law firm. Particularly with the Supreme Court’s decision in Williams v. Adold/Stamm International (Nig.) Ltd, there was on the writ of summons in that case the handwritten name of Chief Ladi Williams (SAN) on top of his typewritten name as the person who issued it, thus satisfying the stipulations of the apex Court in the earlier case of SLB Consortium Ltd v. NNPC (2011) ALL FWLR (PT 583) 1902 @ 1916 (Rhodes-Vivour, J.S.C.) that the signature of counsel may be ‘any contraption.’
Mr. Obende also tried to argue that the statement of the law on the issue by Rhodes-Vivour, JSC, in SLB Consortium Ltd v. NNPC (supra) regarding the correct way to sign Court processes as reproduced by the trial judge in his judgment is not strict but give room for reasonable manoeuvre. Counsel is incorrect, for on the contrary, the apex Court in its more recent decision of GTB Plc v. Innoson Nigeria Ltd (2017) 16 NWLR (PT. 1591) 181 @ 198-199 (Eko, JSC, in lead judgment) had this to say on facts that were very similar to the situation here:
“The processes had on them at the signature column a signature that cannot be ascribed to any of the

four persons, including the names of Prof. J.N.M. Madugha, FCILS, FCAA; Dr, N.J. Maduike-Ekwe, Ph.D; E.C. Ofime. Esq., LL.B and C. Dimazoro – Okeke (Mrs.) LL.M who apparently are legal practitioners. The same scenario was repeated on the written address filed on 21st June, 2016 along with the further counter – affidavit No.2 – filed on the same date. Relying on SLB Consortium v. NNPC (2011) 9 NWLR (Pt.1252) 317 at 336 -337. Mr. Olorundare, SAN, of counsel to the appellant had strongly urged that the said process are incompetent and should be struck out.
“It is trite that it is the seal or signature of the author on a document that authenticates the document. A legal document or process of Court must be settled or signed by either the legal practitioner of the choice of litigant or the litigant himself.
“The disputed processes were purportedly settled or signed by a legal practitioner whose identity is unknown. Where ex facie a Court process it is uncertain if the process was signed by the litigant or the legal practitioner representing him, the process is incompetent. Court processes must either be signed by the litigant

himself or by the legal practitioner retained by him. A Court process that purports to be settled by a legal practitioner must, as a requirement of statute, have not only the signature of the legal practitioner but also his name clearly shown and indicating that the signature is his. The decision of this Court in SLB Consortium Ltd. v. NNPC (supra) and many others on Court processes prepared and filed by a legal practitioner clearly demonstrate that for the signature thereon appended to be valid, it must be traceable to a legal practitioner. The process must have the signature or mark of the legal practitioner either against his name, or over and above his name.
“The written addresses filed on 6th April, 2016 and 21st June, 2016 are clearly incompetent. The signature on each of them cannot be verified or traced to any registered legal practitioner. They are accordingly struck out.”
That settles it. Appellant, I hold, was not also denied fair hearing by the decision of the lower Court, as the decision was based on the clear contents of the writ of summons, an issue which could be raised at any time and anyhow by the parties or even

by the Court, same being a jurisdictional challenge. Issue 1 is accordingly resolved against appellant.

Being only an intermediate appellate Court, however, we are required to resolve the appeal on its merits too in case the apex Court on further appeal takes a different view from the way we have seen issue 1 here. I therefore proceed to do that now.

Issue 2: Whether appellant’s case was not grantable even on the merits.

On the merits of the case, Mr. Obende argued that the lower Court in resolving the defamatory nature of the publication did not properly consider the defences of justification and fair comment on matters of public interest put forward by the respondents. Counsel said whereas the case of appellant was that there was no contract for it to construct 45,000 seats and it is not true that it swindled or intended to swindle or defraud Plateau State Government or that it doles out money to anyone who raises eyebrows on the contract, Respondents’ defence was that the contract it signed with Plateau State Government was for 45,000-seat capacity; it was building only 15,000-seat capacity; it intended cheating and swindling

Plateau State Government of money meant for 30,000-seat facility, and that it bribes people with money once eyebrows are raised on the contract.

Counsel submitted that respondents, on who he insists the onus lay to prove their defences of justification and fair comment, failed to prove those defences and rather sought to rely on publications by other people as the basis for their own publications even as they never referenced such publications in their own offensive publication. He argued that it was not even respondents’ case that they made the defamatory publication because the number of seats appellant was to install was uncertain; on the contrary, they stated categorically that appellant was contracted to provide 45,000 seats but was providing only 15,000 seats. While recognizing that justification is a complete answer to a defamation action, the onus of making out the justification for its publication, in this case by proving their allegation of a contract for 45,000 seats and installing of only 15,000 seats along with their further statement that appellant doles out money to people to cover up investigation of the said fraud, counsel

submitted, was on respondents but they did not discharge it. No person, not even respondents’ reporter they claimed was reluctant to approach appellant for fear of being bribed, was called, he pointed out.

Libel, counsel submitted, is actionable per se and attracts award of damages, irrespective of whether or not it is believed by those who read it or to whom it was published; it was therefore wrong for the lower Court to deny appellant damages on grounds of P.W.2’s evidence that he did not believe the publication because he knew appellant very well.

Counsel cited my judgment in Western Publishing Company Limited v. Dr. Kayode Fayemi (2015) LPELR-24735 (CA); (2016) ALL FWLR (PT 821) 1400; (2017) 13 NWLR (PT 1582) 218 to submit that respondents’ refusal to make an apology and persistence on their false assertion all through the trial made award of damages justifiable and the trial Court wrong in holding otherwise.

In reply, Mr. Samchi argued that the general burden of proof, by the provisions of Sections 131(1) and 132 of the Evidence Act, 2011, was not on respondents but on appellant, and placing strong reliance on this

Court’s decision in Nzeribe v. Anyim (2009) ALL FWLR (pt. 488) 378 at 395, counsel submitted that, to establish a case of libel, appellant was bound to prove that there was publication of the offending words; that the said words referred to it; that the words were defamatory; that they were also false and that there was no legal justification for the publication complained of, none of which he argued appellant proved.

Dealing first with publication and relying on Nzeribe v. Anyim supra and Nsirim v. Nsirim (1990) 3 NWLR (pt. 138) 285 at 297, counsel submitted that publication in the tort of defamation is not the mere writing or printing of the statement complained of but making it known to some person or persons other than the person of whom it is written, and that such third person’s name must be also pleaded. Appellant, he said, failed to plead the name of even a single third person to whom the offending document (Exhibit P2) was delivered. Proof of publication of Exhibit P2 to PW1 is not proof of publication to a third person as required by law as PW1 is one and the same person with appellant, he being appellant’s Chief Executive

Officer and Managing Director, counsel argued. The estimation, status and image of appellant, counsel thus argued, cannot be lowered or prejudiced in the eyes of PW1. In any case, he added, appellant never pleaded that PW1 read the said offensive publication.

With respect to PW2, it was argued that it was never stated in the pleadings of the appellant that delivery of Exhibit P2 was made to him; reference in appellant’s statement of claim to its ‘associates’ who read the publication, it was submitted, does not suffice for pleading of the name of PW2 who claimed he had known and professionally associated with appellant and it’s key staff for over twenty years.

Counsel also argued that, to succeed in its case, appellant had a duty to show from the alleged libelous statement that it referred to it. He said appellant was not even mentioned by name in the publication and respondents in their statement of defence denied that their publication referred to it. By not mentioning appellant in their publication, he submitted, appellant had an uphill task to climb and must in that case resort to the technical aid of innuendo to connect itself

to the publication. To do that successfully, appellant, he submitted, needed to call a named reasonable member of the public to testify that he read the said publication and knew that it referred to appellant. That reasonable member of the public, counsel submitted, excludes PW1 and 2 by reason of their association with appellant. That is even as counsel also conceded that the said two witnesses testified that ‘the contractor’ referred to in the publication meant appellant as it was the only contractor handling the stadium project in issue. It is also trite, counsel further submitted, that for a plaintiff to establish some words or publication is defamatory of him, he must show that they have lowered his reputation and integrity in the estimation of right-thinking members of society who have deterred such third persons from associating or dealing with him. He said the two witnesses who testified for appellant never testified to how the publication negatively affected their relationship with appellant; that instead, they testified to its professional competence and praiseworthiness before and even after the alleged defamatory publication.

He referred us specifically to paragraph 18 of PW1’s statement on Oath contained at p.74 of the records, where he said “I know the contractor was doing an excellent job’. They also referenced the admission under cross-examination of PW2 at p. 291 of the records where he said “I stand by my statement in paragraph 6 of my witness statement; consequently, when I read the story I did not believe it.” Counsel submitted that these two testimonies of PW1 and 2 coupled with PW2’s further testimony that that he did not even believe the publication because he knew that ‘the contractor was doing an excellent job.” clearly absolved respondents of any liability in defamation of appellant, because their opinion of appellant was not affected by the publication.

It was also argued by counsel that appellant failed to prove that the alleged defamatory publication was untrue, because, according to him, if the alleged defamatory words were placed side by side with the evidence led it would be seen that appellant clearly conceded to the truth of the said allegations in the publication, which is that whereas the appellant contracted to

construct a 45,000-seater stadium, it made arrangements for only 15,000 seats. He said appellant in its statement of claim asserted that the sitting capacity of the stadium upon completion targets 32,000 seats but PW1 who testified as its Managing Director conceded in cross-examination that he had granted audience to media agencies to the effect that upon completion of the stadium complex there should be about 44,000-45,000 seats. He said the then Commissioner for Youths and Sports of Plateau State is also captured to have maintained the same posture about the seating capacity of the stadium upon completion.

In further support of respondent’s position that their publication was true, counsel also referred us to what he described as irreconcilable conflicts between the testimony of PW1 and the averment in paragraph 6 of appellant’s amended statement of claim. He said whereas PW1 (appellant’s Managing Director) has granted several audiences to the effect that upon completion the stadium complex will contain about 44,000-45,000 seats, appellant alleged in its amended statement of claim that it merely proposed to Plateau State Government to

increase the stadium seating capacity to 32,000 and not 45,000. It was therefore established, he submitted, that appellant did not plan to construct a 44,000-45,000 seating capacity for its client, but only 32,000 seats, which they said agreed with the content of the publication in question. That confirmation of the truthfulness of the publication as contained in Exhibits “D1”, “D2″ and other media reports, he argued, confirms the evidence of DW1 at page 10, Paragraph 12 of his Statement on Oath to the effect that the publication in question is the outcome of a resourced information gathered by the publisher on the way and manner the construction of the Zaria Road Stadium was being carried out by the Contractor. Furthermore, DW2 (Nannim Hydro Jangtur) who was part of the Technical Team/Project Supervisors of the project for the client, made several revelations in his testimony establishing that the publication in question was indeed true. Counsel said it is immaterial that the publication alleged that the contractor was planning to construct 15,000 seating Stadium or 32,000, so long as appellant was not planning to construct a 44,000 – 45,000 seating capacity

stadium for its client as it has always maintained through its Managing Director (PW1), the publication is true in substance.

Defence of fair comment, counsel also agreed with the trial judge, availed respondents on the facts of the case and the evidence led as related above, they having shown, according to him, that the subject matter commented on – the Zaria Road Stadium – is a project of public interest. All respondents need do, it was argued, is to establish that the statement is fair and based on facts truly stated and is the honest expression of the writer’s real opinion.

Another reason why appellant’s action was not maintainable, according to counsel, is that appellant alluded to suffering, natural grief, distress and social disadvantage as a result of the publication, factors counsel submitted are only possible with natural persons or human beings and not a corporate body like appellant. Counsel cited Duyile v. Ogunbayo & Sons Ltd (1988) 1 NWLR (pt 72) 601 at 610-611 for this contention.

Resolution of issue
I have earlier on highlighted the reasons the trial Judge gave for his verdict that appellant’s action failed

even on the merit. They are that:
(1) That publication of libelous material to a third party is essential to success of libel action but in this case, appellant did not name in its statement of claim the third party to whom the publication was made.
(2) That there was discrepancy/uncertainty in the evidence of appellants regarding the seating capacity of the Plateau Stadium and, for that reason, the respondents’ plea of justification availed them.
(3) Thirdly, that for the same reason of discrepancy in the evidence of appellant regarding the seats to be constructed in the stadium, plea of fair comment on matters of public interest also availed respondents.
(4) Finally, that appellant had the onus of establishing that the publication in issue bore a defamatory meaning to the persons to whom it was published but it failed in that respect since PW2 (its only other witness besides its Managing Director) testified that he did not believe the publication because he knew appellant very well.

With all due respect, I am far from convinced that any of these reasons or even the additional ones advanced by respondents supports his

decision. Incidentally, I had in my widely reported judgment of Western Publishing Company Limited & Anor v. Dr. Kayode Fayemi (2015) LPELR-24735 (CA); (2016) ALL FWLR (PT 821) 1400; (2017) 13 NWLR (PT 1582) 218 dealt with most of these issues.

On whether damage need be proved in libel case, it has to be realized that the tort of libel is actionable per se upon publication so there is no need for proof of damage. For this reason, even if a claimant in a libel case avers to actual damage to his/her reputation but fails to prove it as respondent contends was the case here because appellant’s two witnesses testified to its good character, the claimant will still be entitled to damages. This position of the law is too settled to admit of a contrary argument. Winfield & Jolowicz in their book, Tort, 18th Edition (by W.V.H. Rogers) at Para. 12-5, p. 572 stated this position of the law thus:
In cases of libel (and in some cases of slander) the claimant can recover general damages for the injury to his reputation without adducing any evidence that it has in fact been harmed, for the law presumes that some damage will arise in the ordinary

course of things. If, of course, the claimant in a libel case contends that actual damage has been suffered he can plead it and prove if he can, but even if he breaks down on this point he may still be able to recover general damages.
See also Halsbury’s Laws of England, 4th edn, Vol. 28, where it is also stated that:
In actions of libel and of slander for words which are actionable per se it is not necessary for the plaintiff to allege in his statement of claim that he has suffered actual loss or damage. However, if in such actions he wishes to recover special damage, he must allege and prove it. If he fails to prove such damage, he still has the right to recover general damages.
See also Gatley on Libel and Slander, 18th edition, at Para. 34.50 where the learned authors, quoting Bowen L.J in Ratcliffe v. Evans (1982) 2 Q.B. 524 @ 528 and Lord Goddard L.J in Scottish Co-operative v. Odhams Press Ltd (1940) 1 K.B. 440 @ 461, had this same thing to say thus:
Damage presumed: In cases of libel or slander actionable per se, the claimant need not prove actual damage, for:
‘The law presumes that some damage will flow in the

ordinary course of things from the mere invasion of his absolute right to reputation.’ Per Bowen L.J.
‘There is no obligation on the plaintiffs to show that they have suffered damage ……. In every case (a plaintiff) is entitled to say that there has been a serious libel upon him, that the law assumes he must have suffered damage, and that he is entitled to substantial damages.” Per Lord Goddard L.J.
McGregor on Damages, 18th edition, at Para. 45.007, also confirms it thus:
Certain damage may be inferred or presumed: this is particularly so with non-pecuniary losses. Thus by showing serious personal injury to the claimant, it may be inferred that pain and suffering resulted. More technically, damage is sometimes said to be ‘presumed’, particularly in cases involving injury to reputation. In defamation the Court is entitled to award substantial damages although proof of damage is not produced.
And after citing several cases where this was done, the learned authors stated further as follows in Para. 45.008.
In all these varied cases such inferences of damage may be regarded as legal presumptions

operating in the claimant’s favour, to some extent obviating the necessity of production of evidence of damage by him.
This state of the law has been confirmed by the Supreme Court of Nigeria too. In fact in Ejabulor v Osha (1990) 5NWLR (PT. 148) 1 at p.15 (para H) the apex Court in dismissing similar arguments that proof of actual damage to reputation is a sine qua non to success in a libel action said:
“…questions relating to proof of damages are totally alien to an action for libel.”
The apex Court reaffirmed this settled principle of law in Oduwole v. David West (2010) ALL FWLR (PT 532) 1634 at pages 1657-1658 (Fabiyi, J.S.C), saying that:
“It must be reiterated here that every libel is 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.”
Publication: That takes me directly to the lower Court’s decision, and respondents’ arguments

of failure of appellant to prove publication of the libelous document because appellant, according to them, failed to call a third party other than its Chief Executive Officer and Managing Director, PW1 (even as it also called PW2), so publication of the defamatory matter as known in the law of libel was not proved. Again, this reasoning loses sight of the type of publication involved here – a publication in a news magazine. For purposes of publication to a third person(s), libelous matter contained in a magazine like that of respondents distributed in the news media or on the Internet is different from publication of other documents as was in Nsirim v. Nsirim (1990) 3 NWLR (PT. 138) 285 cited by the lower Court and Respondents’ counsel. In respect of publication in the news media and other such cases, there is a presumption, and inference, that publication was brought to the attention of a third person, therefore a plaintiff in such a case ordinarily need not prove publication, the onus rather being on the defendant to first rebut the presumption. That much is clear from the following commentary in Gatley on Libel and Slander, Ninth Edition, at Paragraph 6.9, p. 134:

“The fundamental principle is that the matter must be communicated to a third party in such a manner as to be capable of conveying the defamatory imputation about the plaintiff. However, it is not necessary in every case for the plaintiff to prove directly that the words were brought to the actual attention of some third person in this sense. If he proves facts from which it can be inferred that the words were brought to the attention of some third person he will establish a prima facie case. This is particularly obviously so where the matter is contained in a book or distributed in the news media or on the Internet, where in practice it would be impossible to rebut the inference, and in such a case it would seem that the presumption of publication would be impossible to rebut.”
Clerk & Lindsell on TORTS, 16th Edition (Sweet & Maxwell) also projected the same point, saying at Paragraph 21-47, page 1118, of their book that:
It is by no means necessary for a plaintiff in all cases to prove directly that the defamatory matter was brought to the actual knowledge of anyone. If he makes it a matter of reasonable

inference that such was the fact, he establishes a sufficient prima facie case.
Winfield & Jolowicz on Tort, 18th Edition, at page 594 also confirms this, too, saying, at Paragraph 12-12, that:
Where defamatory material is contained in a newspaper or book it will be presumed that a significant number of readers read the offending passages.
The trial judge was therefore in error when he relied on failure of appellant to call a third person beside PW1 and 2 in dismissing appellant’s case. In any case, assuming, but without conceding, that proof of publication of that offending publication in respondent’s news magazine to an identifiable third person was necessary, the evidence of PW2 who described himself as an associate of the appellant that read it suffices. And contrary to respondents’ further contention on need for pleading of PW2 as one such associate, appellant sufficiently pleaded material facts to support PW2’s evidence given its pleading that the offensive publication was seen and read by their associates. That pleading covers PW2 as one associate of appellant; it was therefore up to respondents to apply at the

trial for further and better particulars of the said associates of appellant, or even serve interrogatories on appellant, if they had any problem with that pleading. Having chosen to meet appellant’s case without asking for those particulars, respondents only have themselves to blame for whatever surprise they may have met at the trial: see Ezomo v. Oyakhire (1985) LPELR-1216 (SC) p. 9, (1985) NWLR (PT 2) 195 @ 201. P.W.2’s evidence was clearly covered by the facts pleaded, admissible in evidence and even on its own alone proved publication of Exhibit P2 to a third person.

Defences of justification and fair comment and who bears the onus of their proof: A misdirection as to where the onus of proof lie in a case is a very serious matter and leads to miscarriage of justice, just as it also affects the way the Court approaches credibility of witnesses that testified before it: seeOnobruchere v. Esegine (1986) 1 NWLR (PT 19) 799; (1986) ALL N.L.R. 289; (1989) 2 S.C. 385; (1986) LPELR-2688 (S.C.) p.8-13; Okoye v. Nwankwo (2014) ALL FWLR (PT 756) 471 @ 595 – 500, (2014) LPELR-23172 (SC). Defendants/Respondents here pleaded the defences of

justification and fair comment to appellant’s claim and the trial judge reasoned that they availed them because the onus was on it as claimant to show that the said defences did not avail respondents. Was he right? Did those defences actually avail respondents on the evidence on record? To sustain a defence of justification the facts alleged by defendant in his publication must be substantially true. It is also imperative that every material fact alleged must be justified by the defendant. Likewise, to justify a comment, the facts on which the comment is based must be proved to exist, thus putting it beyond doubt that the comment is well founded: see Clerk & Lindsell on Torts, 16th Edition at Paragraphs 21.61-63. I spoke on these two defences, too, in my judgment in Western Publishing Company Limited & Anor v. Dr. Kayode Fayemi (2015) LPELR-24735 (CA); (2016) ALL FWLR (PT. 821) 1400 @ 1448-1449; (2017) 13 NWLR (PT 1582) 218 @ 287-288 thus:
“First, on the plea of justification… the position of the law is properly stated by Bullen and Leake and Jacob’s Precedents of Pleadings, 12th Edition at p. 1179 as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“A justification of the libel or slander on the ground of truth must be pleaded specially. It should not be pleaded without good reason to expect that it will be proved. It is the duty of counsel not to put a plea of justification on the record unless he has clear and sufficient evidence to support it (Associated Leisure Ltd v. Associated Newspapers Ltd [1970] 2 Q.B.450, per Lord Denning M.R. at 456). If it is pleaded upon insufficient grounds, the fact of the defendant’s thus persisting in the charge is evidence of malice and should be taken into account in estimating damages (Warwick v. Foulkes (1844) 12 M & W. 508.
“A plea of justification must be strictly proved at the trial. It is no defence that the libel had previously been published by another. That the defendant at the time of publishing it stated the source from which he received it, and then believed it to be true, is also no defence.
“As for the defence of fair comment, it is also important that the publisher gets his basic facts right and be ready to prove them. Here I wish to quote the law as stated by Lord Denning M.R. in London Artists v. Littler (1969) 2 QB 375 thus:

“In order to be fair, the commentator must get his basic facts right. The basic facts are those which go to the pith and substance of the matter: see Cunningham-Howie v Dimbleby (1951) 1 KB 360,364. They are the facts on which the comments are based or from which the inferences are drawn – as distinct from the comments or inferences themselves. The commentator need not set out in his original article all the basic facts: see Kemsley v Foot (1952) AC 345; but he must get them right and be ready to prove them to be true. He must indeed afterwards in legal proceedings, when asked, give particulars of the basic facts: Burton v Board (1929) 1 KB 301; but he need not give particulars of the comments or the inferences to be drawn from those facts. If in his original article he sets out basic facts which are themselves defamatory of the plaintiff, then he must prove them to be true: and this is the case just as much after Section 6 of the Defamation Act, 1952, as it was before. It was so held by the New Zealand Court of Appeal in Truth (NZ) Ltd v Avery (1965) (NZLR 274), which was accepted by this Court in Broadway Approvals Ltd v. Odhams Press Ltd.

(1965) 1 WLR 805. It is indeed the whole difference between a plea of fair comment and a plea of justification. In fair comment he need only prove the basic facts to be true. In justification he must prove also that the comments and inferences are true also.”
The onus of proof of these two defences, particularly that the basic facts of their publication are correct, was undoubtedly on respondents and not on appellant contrary to the thinking of the trial judge and Mr. Samchi for respondents. That much is clear. See Gatley on Libel and Slander, Ninth Edition, at Paragraph 11.3, p. 234 where it is said thus:
“Although the practice was only that the plaintiff alleged that the defendant published the matter ‘falsely’ it is clear that in England and other jurisdictions which follow the common law on this point, that a defamatory imputation is presumed to be false and that the burden is upon the defendant to show that it is substantially true.
See also Tort Law: Text and Materials, 3rd Edition, by Mark Lunney and Ken Oliphant, at p. 736 where it is again stated that:
A defendant may ‘justify’ a

defamatory allegation by proving its truth in all material respects. Defamatory statements are presumed to be false and the burden of proving their truth lies on the defendant, contrary to the law’s general approach of placing the burden of establishing the principal elements of the cause of action on the claimant.
That also finds support in Section 140 of the Evidence Act of 2011 stating that:
When a fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
The trial judge was therefore on the wrong track and caused serious miscarriage of justice by putting the onus of proof on the appellant and held its case not proved simply because according to him its witness was uncertain about the number of seats it was to install, a position gleefully supported by respondents. It was clearly respondents’ duty to prove, and do so strictly, their defences of justification and fair comment for their publication of (1) existence of contract between appellant and Plateau State Government to build a 45,000 seat stadium, (2) that appellant was installing less than that number and so ‘swindling and

cheating’ Plateau State Government, and (3) that whenever anyone raises the issue with appellant it bribes them with money. How were they supposed to go about that? The first step they ought to have taken in that regard is to tender the contract they asserted in their publication that “…..investigations revealed Plateau State Government and its Ministries of Urban Development and Sports signed a contract for a 45,000-seater…” A contract can only be signed on a document, so the said document has to be produced to support that assertion, parole evidence being not admissible. See Section 125 of the Evidence Act 2011 which says ‘All facts except the contents of documents shall be proved by oral evidence.’ See also Okpalugo v. Adeshoye (1999) 10 NWLR (PT 476) 77 @ 102 – 108 (S.C).
After producing that ‘signed’ document, they will then proceed to prove the second part of the same publication that alleged that “… the contractor [appellant] made arrangements for only 15, 000 seats in a bid to defraud the government.”
That is not all; they must also adduce credible evidence to prove

the final part of the publication that “…the contractor doles out money to whoever raises an eyebrow over the project hence the reluctance of the Reporter to approach him for comments.”
Proof of all these very damaging allegations is strict and not matters for conjecture as the lower Court’s reliance on uncertainty in the number of seats appellant was said to have contracted to install suggested. At any rate if there was uncertainty in the evidence regarding the number of seats appellant was contracted to install, it simply means that respondents who alleged 45,000 seats and had the onus of proof of that allegation had failed to discharge the onus on them.
The truth, however, is that no serious attempt was made by respondents to prove these allegations let alone do so strictly. On the contrary, they rather defended the case both before the trial Court and even in this Court in the most wounding fashion by continuing to insist, albeit without evidence, that appellant is a cheat and swindler, lacked capacity and skill to execute the kind of project it undertook and was in the habit of throwing money at anyone that raises

eyebrows about its said inglorious conduct. What was their source and inspiration for these statements? What others they claim had said earlier. As shown earlier, reliance on what others had published before one is no defence to a defamation action.
It is also preposterous to argue as respondents did that it was not proved that their said libelous publication, which directly referred to the contractor engaged by Plateau State Government in handling the completion of the abandoned old New Zaria Road Stadium complex, refer to appellant. It is after all undisputed fact that appellant is the sole contractor engaged by Plateau State Government for that project. In any case failure to prove reference of the publication to appellant not being one of the grounds for the lower Court’s dismissal of appellant’s case, respondents can only make that contention here if they first filed Respondent’s Notice in line with Order 9 Rule 2 of the Rules of the Court of Appeal 2016: see Orji v. Zaria Ind. Ltd (1992) 1 NWLR (PT 216) 124 @ 128 (SC); Kayili v. Yilbuk (2015) 7 NWLR (PT. 1457) 26 @ 86 (SC).

The other argument of respondents that appellant

being a company and not a natural person can only sue if its earnings were affected so its action was not maintainable even on that ground, for which they cited Duyile v. Ogunbayo & Sons Ltd (1988) 1 NWLR (PT 2) 601 @ 610-611, also suffers the same fate. That was not the trial judge’s reason for dismissing the action. But the fact is that Duyile’s case did not even decide that a company or corporate person can only maintain action for libel if it is shown that its earnings are injured. The narrow point that was decided in Duyile that may have remotely related to respondents’ contention was the plaintiff’s, Ogunbayo & Sons Ltd’s, claims for damages for ‘natural grief, injury to its feelings and social advantage’ which the trial Judge also awarded ₦50,000.00 each. It is that award alone this Court set aside and the apex confirmed and commented upon that a company not being a natural person is incapable of pain, grief and feelings and so cannot be awarded such loses in a defamation action. Baring that, it is a well-settled position of the law that a company, or corporate person, can maintain an action for libel

affecting its business and trade, and to succeed in such action it does not even have to prove any special damage suffered by it. See South Hutton Coal Co. v. North Eastern News Association Ltd (1894) 1 QB 133 148 where it was said (Kay, L.J.) that:
“I am therefore of the opinion that a trading corporation may sue for libel calculated to injure them in respect of their business, and may do so without any proof of damage general or special.”
The same point was confirmed in D & L Caterers Ltd and Jackson v. D’Ajou (1945) KB 364 @ 361, with Du Parq, L.J., saying:
“A company cannot sue either for libel or for slander unless it is defamed in the way of its business. In the case of a libel it is not necessary to prove special damage, and there can be no reason in principle why in the case of slander it should be necessary to prove special damage.”
All that was also accepted by the apex Court in the very case of Duyile v. Ogunbayo & Sons Ltd (supra) at p.611 paragraph H, with Belgore, JSC, in lead judgment saying that:
“What was awarded in the trial Court was not in the nature of special damages,

it was strictly in conformity with the claim made for general damages and no special proof was needed.”

So, the long and short of it is that, but for the invalidity of its writ of summons, I would have agreed with appellant that it proved its case and proceed to set aside the judgment of the trial High Court of Plateau State as given by Dabup J and enter judgment in appellant’s favour. Given respondents’ refusal to render apology to appellant and the very wounding manner they prosecuted their defence by pleading justification and fair comment none of which they could make out, I would have awarded in favour of appellant damages of ₦13,000,000.00 (Thirteen Million Naira) against respondents jointly and severally. I would have also granted it the perpetual injunction it sought.
I would have however refused its prayer for respondents to render it an apology to be published in newspapers. Such relief is not grantable, because the Court cannot dictate the terms of any correction or apology. The best the Court can do in a defamation action, if it finds the case of the claimant proved, is to order the defendant to publish the terms of

its judgment, and not to order an apology to be published in news media: see Winfield & Jolowicz’s Tort, 18th Edition, Paragraph 12-69, at page 660.

In conclusion, in the light of my decision on issue 1 and for the fact that a competent action cannot be founded on an incompetent originating process, this appeal very sadly fails and is hereby dismissed.
Parties shall bear their costs.

TANI YUSUF HASSAN, J.C.A.: I had the opportunity of reading in draft the lead judgment of my learned brother, BOLOUKUROMO MOSES UGO, JCA. His Lordship has thoroughly dealt with the issues in this appeal. I have nothing useful to add. I also dismiss the appeal. Parties to bear their respective costs.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the advantage of reading before now the judgment just delivered by my learned brother BOLOUKUROMO MOSES UGO, JCA.

I am at one with the reasoning and conclusion therein that the appeal ought to be dismissed.

I also dismiss the appeal and abide by the consequential orders therein contained.

Appearances:

S.S. Obende, Esq. For Appellant(s)

S.D. Samchi, Esq., with him, T. B. Kabang, Esq. For Respondent(s)