BRAS VENTURES LTD & ANOR v. WESTSTAR ASSOCIATES LTD & ORS (2020)

BRAS VENTURES LTD & ANOR v. WESTSTAR ASSOCIATES LTD & ORS

(2020)LCN/14790(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, November 20, 2020

CA/L/1293/2016

RATIO

JUDICIAL PRECEDENT: THE UNDERTAKING TO OVERRULE A PREVIOUS DECISION OF THE COURT OF APPEAL

The undertaking to overrule a previous decision of the Court is grave as precedent or stare decisis upon which society had operated their state of affairs would be altered in the event of the previous decision being overruled. Because as stated by the Supreme Court sitting as a full Court in Adesokan v. Adetunji (1994) 5 NWLR (pt. 346) 540 at 562 –
“This Court ordinarily adheres to the principles of judicial precedent (stare decisis) and will hold itself bound by its previous decision. However where it is satisfied that its previous decision is erroneous or was reached per incuriam and will amount to injustice to perpetuate the error, by following such decision it will overrule such decision or depart from it — Johnson v. Lawanson (1971) 1 All NLR 56; Bucknor-Maclean v. Inlaks Ltd. (1980) 8 – 11 S.C. 1; Odi v. Osafile (1985) 1 NWLR (pt. 1) 17; Rossek v. A.C.B. Ltd. (1993) 8 NWLR (pt. 312) 382.”
It is in that wise that a full Court of five (5) Justices will normally and usually be constituted to overrule a previous decision of the Court vide Motayo v. C.O.P. (1950) 13 W.A.C.A. 114 at 116 to the effect that in civil matters it is essential in order to adhere to and preserve the rule of stare decisis that the Court should consider itself bound by its own decisions and the decisions of the Supreme Court on the same issue(s).
However, the decision in Motayo (supra) adds that the practice is that no previous decision of the Court will be reviewed save by a full Court constituted of that number which is presently five (5) Justices. Following Madukolu and Ors. v. Nkemdilim (1962) N.S.C.C. 374 at 380 – 381, the Court as presently constituted of three Justices is not competent as to numbers to review its previous decision with a view to overrule it.
Also, the appellants did not follow the inexorable practice to the effect that a party intending to have a previous decision of the Court overruled must apply to and obtain approval of the Honourable President of the Court (Hon. P.C.A.) who would constitute a full Court for that purpose. See Order 3 Rule 10 of the Court of Appeal Rules 2016 (the Rules of the Court) to the effect that sessions of the Court may be convened and constituted and the time, venue and forum for all sessions and for hearing interlocutory applications shall be settled in accordance with general or specific directions to be given by the President. For the reason (supra), the request to have the previous decision of the Court in Spog (supra) overruled is not countenanced on ground of incompetence of the Court as to its number of three (3) Justices instead of five (5) Justices. PER SHAGBAOR IKYEGH, J.C.A.

ACTION: WHAT IS LOOKED AT TO DETERMINE WHETHER THERE IS A CAUSE OF ACTION

The only relevant materials to look at albeit, on the surface, to determine whether the entire action does not disclose a reasonable cause of action is the statement of claim as pleadings were filed and exchanged in the case vide the cases of Uwazuruonye v. The Governor, Imo State and Ors. (2013) 8 NWLR (pt. 1355) 28 at 51 and 57, following Dantata v. Mohammed (2000) 7 NWLR (pt. 664) 176 and Governor, C.B.N. v. Dr. Akingbola (2013) 3 BFLR 128 at 178, Ege Shipping and Trading Inc. v. Tigris International Corporation(1999) 14 NWLR (pt. 637) 70 at 90- 91, Diamond Petroleum International Limited v. Governor, Central Bank of Nigeria and Ors. (2015) 14 NWLR (pt. 1478) at 199, SPDC (Nig.) Ltd. and Anor. v. X. M. Federal Ltd and Anor. (2006) LPELR – 3047. PER SHAGBAOR IKYEGH, J.C.A.
CLAIM: NATURE OF A CLAIM FOR PROFESSIONAL FEES

A claim of professional fees is categorised as special damages vide Union Bank Plc. V. Okpara (supra) cited by the 1st — 4th respondents. PER SHAGBAOR IKYEGH, J.C.A.

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

1. BRAS VENTURES LIMITED 2. MR. YOMI SONUGA APPELANT(S)

And

WESTSTAR ASSOCIATES LIMITED 2. MB AUTOMOBILE SERVICES LIMITED 3. MR. MIRKO PLATH 4. MRS. ELIZABETH ITEGBE 5. GLOBE MOTORS HOLDINGS (NIG) LTD 6. MR. WILLIAM ANUMUDU RESPONDENT(S)

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is from a decision of the High Court of Justice of Lagos State (the Court below) whereby it dismissed the appellants’ motion challenging the jurisdiction of the Court below that there had been non compliance with Order 3 Rule 2(1) of the High Court of Lagos State (Civil Procedure) Rules 2012 (the rules of the Court below) on the ground that the written statements on oath of two of the witnesses out of the three witnesses listed in the list of witnesses did not accompany the application for the writ of summons, that the pre-action protocol Form 01 was not filed along with the application for the writ of summons, and that the suit does not disclose a reasonable cause of action.

Sketchily stated, the facts disclosed that the 1st — 4th respondents filed an action by way of writ of summons against the appellants at the Court below claiming N100 million damages, respectively, for libel, injurious falsehood and conspiracy to publish further defamatory statements and for perpetual injunction. Upon service of the originating process on the appellants, the latter filed memorandum

of appearance and statements of defence. After pleadings were closed, the appellants filed a motion challenging the jurisdiction of the Court below on the preface to the discussion.

The Court below heard the motion on affidavit evidence and written addresses culminating with the dismissal of the motion for lacking in merit.

The appellants were unhappy with the decision of the Court below and filed a notice of appeal with five (5) grounds of appeal against it vide pages 241 — 244 of the record of appeal (the record) containing the said notice and grounds of appeal.

The appellants filed a brief of argument on 02.07.18 which was deemed as properly filed on 18.09.18. The appellants relied on Order 1 Rule 3 of the rules of the Court below on the definition or pre-action protocol with respect to the steps that parties are required to take before issuing processes in the Court below as set out in Form 01 on report of steps or attempts made to have the matter settled out of Court which is intended to promote alternative methods of dispute resolution to reduce the workload of the Court in line with the preamble to the rules of the Court below

particularly paragraph 2(2) (a) thereof to contend that the failure of the 3rd – 4th respondents to comply with Order 3 Rule 2(1) (e) of the rules of the Court below on the pre-action protocol should nullify the action under Order 5 Rule 1 (1) thereof.

The appellants further contended that it was erroneous of the Court below to hold that the pre-action protocol filed for a set of defendant applied to the other set of defendants and that by the acceptance of the defective process by the registry staff of the Court below, the competence of the process could not be challenged as it is only the Court below that can pronounce on the competence of any process file before it, not by the registry staff of the Court below.

The appellants referred to the case of Spog Petrochemicals Limited and Anor. V. Pan Peninsula Logistics Limited (2018) 1 NWLR (pt. 1600) 321 to contend that since the Court in that case did not consider Order 5 Rule 1(1) of the rules of the Court below, the said case is distinguishable from the present case, and that in that case there was substantial compliance with the procedural requirement, unlike in the present case where there was

total non-compliance with the procedural statutory requirement, nor did the appellants canvas substantial compliance with the procedural statutory requirements at the Court below, and that since it is not a matter of non-compliance with format or the use of a wrong form as was the case in Ajadi v. Ajibola (2004) 16 NWLR (pt. 898) 91 at 161 and Garuba v. Yahaya (2007) 3 NWLR (pt. 1021) 390, but non-compliance with the required contents of matter expected to be complied with vide Unity Life and Fire Insurance Company Ltd. V. International Bank of West Africa Ltd. (2001) 7 NWLR (pt. 713) 610.

The appellants contended that since the decision in Spog Petrochemicals Limited and Anor. v. Pan Peninsula Logistics and Anor. (supra) (Spog, in short), was given in ignorance or forgetfulness of Order 5 of the rules of the Court below particularly Rule 1 thereof and thus given per incuriam, it should be overruled by the Court vide Afro Continental Nigeria Ltd. V. Ayantuyi (1991) 3 NWLR (pt. 178) 211 at 226 and 227, Onagoruwa v. The State (1992) 5 NWLR (pt. 224) 713, Usman v. Umaru (1992) 7 NWLR (pt.254) 377, The Electoral Officer, Bichi Federal Constituency & Ors. v. Bichi & Ors. (2010) LPELR – 8992 23 at 25.

The appellants added that the non-compliance complained of affected processes filed and is thus a nullity under Order 5 Rule 1 of the rules of the Court below which should entitle the Court to overrule Spog (supra) vide Sylvester and Ors. v. Ohiakwu and Ors. (supra) at 500 — 501, Gambari and Anor. v. Mahmud and Ors. (2010) 3 NWLR (pt. 1181) 278 at 296, Abe and Anor. v. Skye Bank Plc & Ors. (2015) 4 NWLR (pt. 1450) 512 at 536, Kalu v. Odili & Ors. (1992) 5 NWLR (pt. 240) 130 at 174, Uduma v. Arunsi & Ors (2012) 7 NWLR (pt. 1298) 55 at 98, Madukolu & Ors. v. Nkemdilim (1962) 1 All N.L.R. 587 at 595, Nwankwo v. Yar’Adua and Ors. (2010) 12 NWLR (pt. 1209) 518, Kajubo v. The State (1988) 1 NWLR (pt. 73) 721, Black’s Law Dictionary 5th Edition.

The appellants also contended that the issue in question being one of jurisdiction could be raised at any stage of the case, therefore the Court below should not have held that the issue should have been raised at the plenary stage of the case vide PDP and Ors. v. Ezeonwuka & Anor. (2017) LPELR – 42563 (SC).

The appellants contended that

the consequence flowing from the discussion (supra) should be the striking out of the action for being a nullity and/or for want of jurisdiction citing in support thereof the cases of Ajomale v. Yaduat and Anor. (No. 1) (1991) 5 NWLR (pt. 191) 257, Riruwai and Ors. v. Shekarau and Ors. (2008) 12 NWLR (pt. 1100) 142, Adesola v. Abidoye and Anor (1999) 14 NWLR (pt. 637) 28 at 52, New Nigerian Bank Plc v. Denclag Ltd. (2005) 4 NWLR (pt. 916) 549 at 583.

The appellants contended that in the light of the fact that the statement of claim contained in pages 8 – 18 of the record, particularly paragraph 26 in page 12 thereof, did not disclose any cause of action for libel as it did not plead the name of the person or persons to whom the alleged libelous material was published as well as the date the letter or material allegedly containing the libel was received or published to a third party together with the fact that there was no pleading that the letter or material in question was not only received but read and understood by a third party, the Court below should have struck out the action vide Gatley on Libel and Slander para. 28.5 on page 963,

Nsirim v. Nsirim (1990) 3 NWLR (pt. 138) 285 at 298, Yusuf v. Akindipe (2000) 8 NWLR (pt. 669)376 at 386, Fayan v. UBA (2013) LPELR – 20540 (CA) 18, Akiti v. Punch Nig. Ltd. and Ors. (2009) LPELR – 3665, Wilbros Nig. Ltd. and Anor. v. Macaulay (2009) LPELR – 8507 (CA).

The appellants further contended that having regard to the fact that 1st — 4th respondents did not plead actual damage, the claim for injurious falsehood did not disclose a cause of action and should have been struck out vide Gatley on Libel and Slander para. 21.1 on page 667, 811, Black’s Law Dictionary, 10th Edition 905, 1721, on the definition of injurious falsehood, Radcliffe v. Evans (1892) 2 QB 534 at 527.

The appellants contended that actual damage being an essential element of the tort of conspiracy, the failure of the 1st — 4th respondents to plead actual damage rendered the action bad for not disclosing a cause of action, therefore the entire action should have been struck out by the Court below vide Black’s Law Dictionary, 10th Edition 375, Marrinan v. Vibart and Anor. (1962) 1 All ER 869, Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch (1942) 1 All ER 142, Ogbimi v. Ololo and Ors.

(1993) LPELR — 2280; upon which the appellants urged that the appeal should be allowed and that as regards the pre-action protocol the action be struck out for being a nullity, while as regards the issue of the action not disclosing no reasonable cause of action the said action should be struck out for want of jurisdiction.

The 1st — 4th respondents’ brief of argument was filed on 13.09.18 and was deemed as properly filed on 18.09.18 in which it was argued that since the appellants did not raise an issue from ground one of the notice of appeal, the said ground of appeal should be deemed abandoned and ought to be struck out vide Salihu v. Wasiu (2016) 5 NWLR (pt. 1506) 423 at 435, Adejumo v. Olawaiye (2014) 12 NWLR (pt. 1421) (no pagination).

The 1st – 4th respondents argued thence forward that paragraph 4 of the solicitors’ letter to the appellants dated 15.09.2014, made reference to the 3rd — 4th respondents as officers of the 1st — 2nd respondents who reserved the right to protect their interest having been injured by the appellants’ alleged libel; and that the 5th — 6th respondents’ publication vide

page 105 of the record, showed their solicitors acted on behalf of and in the interest of the 1st — 4th respondents, more so, the 1st — 4th respondents are represented by one solicitor and should on that account swim or sink together vide Ogolo v. Fubara (2003) 11 NWLR (pt. 831) 231 at 261; and that assuming without conceding that the pre-action protocol was not complied with in respect of the 3rd — 4th respondents, the fact that it was complied with in respect of the 1st — 2nd respondents will save the action with respect to the 1st — 2nd respondents.

The 1st – 4th respondents argued that whereas in the cases of Sylvester (supra) and Gambari (supra) maintain written statement(s) on oath, list of witnesses and copies of every documents to be relied on did not accompany the application for writ of summons and was thus considered fundamental and had caused a miscarriage of justice, the present case lacks the said features and is on that basis distinguishable from the said cases; and that as the pre-action protocol was substantially complied with in this case, thus distinguishable from the case of Sylvester (supra) and Gambari

(supra) and that the case of Unity Life and Fire Insurance Co. Ltd. v. International Bank of West Africa Ltd. (supra) is also inapplicable to the present case.

The 1st – 4th respondents argued that the Court below was right in holding that the consequence of non-compliance with Order 3 Rule 2(1) of the Rules of the Court below was for the registry staff of the Court below not to accept the filing of the process and that having accepted the process for filing it no longer became a jurisdictional issue but a procedural matter bordering on technicalities which should be avoided vide Odua Investment Co. Ltd. v. Talabi (1997) 10 NWLR (pt. 521) at 52, Anatogu v. Anatogu (1997) 9 NWLR (pt. 519) 46 at 67.

The 1st – 4th respondents argued that in the light of the statement of claim which should be considered alone to determine whether it has disclosed a cause of action with chances of success as in this case where the alleged libel was published to a third party, Daimler AG, as pleaded, in the statement of claim, particularly in paragraphs 26 — 29 and 40 thereof, and reliefs 1 — 3 of the writ of summons has disclosed a reasonable cause of

action for libel vide the cases ofYusuf v. Akindipe (2000) 8 NWLR (pt. 669) 366 at 386, SPDC Nigeria Ltd. and Anor. v. X.M Federal Ltd. and Anor. (2006) LPELR – 3047, Thomas v. Olufosoye (1986) 1 NWLR (pt.73) 523.

The 1st – 4th respondents argued that the letter dated 20.08.2014 referred to the 1st — 4th respondents maliciously vide page 13 of the record while actual loss particularly N30,000 professional fees from the injurious falsehood was pleaded in paragraph 38 of the statement of claim vide Wilkinson v. Downton (1897) 2 QB 57 and Union Bank Plc. v. Okpara (2006) LPELR — 11747 where the Court held that solicitor’s fees can be pleaded as special damages; and that a corporate body such as the 1st — 2nd respondents may maintain an action for defamation calculated to injure its reputation in the way of its trade or business without proof of special damages vide Edem v. Orpheo (2003) 13 NWLR (pt. 838) 537.

The 1st – 4th respondents argued that the 1st appellant agreed with the 5th respondent to write the libelous letter of 20.08.2014 as evidenced in the letter head thereof and also, that the 2nd appellant was in agreement with the

6th respondent when they co-signed the letter of 20.08.2014, thus it was argued that the 5th — 6th respondents conspired to commit the tort of defamation which led to the damage to the reputation of the business, of the 1st — 2nd respondents and the reputation and character of the 3rd — 4th respondents which should be sufficient pleading for conspiracy; and that the question whether a reasonable cause of action is disclosed does not arise at the interlocutory stage of the case but at the substantive hearing of the case in order for the Court to avoid making pronouncements at the interlocutory stage of the case which may prejudice the trial of the substantive action; upon which the 1st — 4th respondents urged that the appeal should be dismissed for lacking in merit and ground one of the notice of appeal struck out.

The appellants filed reply brief on 23.11.18, which was deemed as properly filed on 23.09.20, where it was contended that the letter of 25.09.2014, on the pre-action protocol stated that it was written on behalf of the 1st — 2nd respondents only, that the pre-action protocol Form 01 was to be filled at the

commencement of the action, not after, as was done by the 1st — 4th respondents’ solicitor who caused the filing of the 3rd — 4th respondents’ pre-action protocol Form 01 after the action was filed on 23.04.2015 vide pages 5 — 18 of the record vide pages 225 — 232 of the record placing reliance on Order 3 Rule 2(1) (c) of the Rules of the Court below.

The appellants also contended in the reply brief that going by the ordinary meaning of the words contained in the letter of 15.09.2015, it is clear that it was written on behalf of the 1st and 2nd respondents only, and that the said letter should be construed as such vide Union Bank of Nigeria Ltd. v. Sax (Nig.) Ltd. (1994) 8 NWLR (pt. 361) 150; that the failure to file pre-action protocol for the 3rd — 4th respondents not being a mistake cannot be treated as a curable technicality; and that the rules of the Court below have not made it a condition precedent that injustice or harm for non compliance with the said rules must be established by a party complaining of its breach before the steps taken in filing the action are declared a nullity.

The reply brief then proceeded to rehash arguments on injurious falsehood and the tort of conspiracy adding that the failure to disclose reasonable cause of action is an issue of locus standi and therefore jurisdictional which can be taken at any time citing in support the cases of Uwazuruonye v. The Governor of Imo State and Ors.(2012) LPELR — 20604, Tukur v. Governor of Gongola State (1989) 4 NWLR (pt. 117) 517 at 549, Orthopaedic Hospitals Management Board v. Garba (2002) 14 NWLR (pt. 788) 538 at 563; upon which the appellants urged that the appeal should be allowed.

Having regard to the fact that the appellants did not raise any issue from ground one of the notice of appeal, the said ground one of the notice of appeal is deemed abandoned and struck out accordingly.

The Court will not be bound by its previous decision if it is demonstrably established that it had acted in ignorance of the decision of a higher Court or in ignorance of a statutory provision and also that it had acted contrary to a decision of its own vide the case of Oloto and Anor. v. L.E.D.B. (1950) 13 W.A.C.A. 57 at 59 and the cases (supra) cited by the appellants.

In my considered opinion, where the facts of the case in hand are distinguishable from a previous case, the Court does not overrule its previous decision. But where the decision in the previous case was reached per incuriam or in ignorance of a statutory provision or of a case decided by a higher Court on the same facts the Court may, in appropriate cases, overrule its previous decision in question.
The undertaking to overrule a previous decision of the Court is grave as precedent or stare decisis upon which society had operated their state of affairs would be altered in the event of the previous decision being overruled. Because as stated by the Supreme Court sitting as a full Court in Adesokan v. Adetunji (1994) 5 NWLR (pt. 346) 540 at 562 –
“This Court ordinarily adheres to the principles of judicial precedent (stare decisis) and will hold itself bound by its previous decision. However where it is satisfied that its previous decision is erroneous or was reached per incuriam and will amount to injustice to perpetuate the error, by following such decision it will overrule such decision or depart from it — Johnson v. Lawanson (1971) 1 All NLR 56;

Bucknor-Maclean v. Inlaks Ltd. (1980) 8 – 11 S.C. 1; Odi v. Osafile (1985) 1 NWLR (pt. 1) 17; Rossek v. A.C.B. Ltd. (1993) 8 NWLR (pt. 312) 382.”
It is in that wise that a full Court of five (5) Justices will normally and usually be constituted to overrule a previous decision of the Court vide Motayo v. C.O.P. (1950) 13 W.A.C.A. 114 at 116 to the effect that in civil matters it is essential in order to adhere to and preserve the rule of stare decisis that the Court should consider itself bound by its own decisions and the decisions of the Supreme Court on the same issue(s).
However, the decision in Motayo (supra) adds that the practice is that no previous decision of the Court will be reviewed save by a full Court constituted of that number which is presently five (5) Justices. Following Madukolu and Ors. v. Nkemdilim (1962) N.S.C.C. 374 at 380 – 381, the Court as presently constituted of three Justices is not competent as to numbers to review its previous decision with a view to overrule it.
Also, the appellants did not follow the inexorable practice to the effect that a party intending to have a previous decision of the Court overruled must

apply to and obtain approval of the Honourable President of the Court (Hon. P.C.A.) who would constitute a full Court for that purpose. See Order 3 Rule 10 of the Court of Appeal Rules 2016 (the Rules of the Court) to the effect that sessions of the Court may be convened and constituted and the time, venue and forum for all sessions and for hearing interlocutory applications shall be settled in accordance with general or specific directions to be given by the President. For the reason (supra), the request to have the previous decision of the Court in Spog (supra) overruled is not countenanced on ground of incompetence of the Court as to its number of three (3) Justices instead of five (5) Justices.

The Court below had this to say in its Ruling in respect of the pre-action protocol Form 01 in page 238 of the record thus —
“A clinical look at the Court file is necessary. In looking the Court sees a Pre-Action Protocol Form as in Form 01 filed together with the Writ of Summons and Statement of Claim together with the accompanying processes. The Form 01 is deposed onto by one Oyebade St. Mathew – Daniel, a legal practitioner acting for all the

Claimants. The Form 01 is dated 9th October 2014 and duly signed. A letter dated 25th September 2014 directed to Mr. William Anumudu, Globe Motors, Mr. Yomi Sonuga and Bras Ventures is filed with the Form 01. The Defendants here are Globe Motors, Bras Ventures, Mr. William Anumudu and Mr. Yomi Sonuga. The Applicants here are Bras Ventures and Mr. Yomi Sonuga.”
Permit me to copy the illuminating judgment of this Court in the case of Medvin Pharmaceuticals Nigeria Ltd. v. Fidson Health (unreported) Appeal No. CA/L/1053/16 per Aliyu, J.C.A., thus –
“It is important to note that the only penalty the lower Court’s Order 3(2)(2) provides for failure of a claimant to file his writ of summons without accompanying same with pre-action protocol form 01 is that the registry will not accept the writ of filing. The rule provides thus:
“(2) Where a claimant fails to comply with Rule 2(1) above, the originating process shall not be accepted for filing by the Registry.”
However, it is clear that the writ of the summons accompanied with the processes including pre-action protocol form 01 were accepted and registered by the registry of the lower Court

It is not a requirement of the Rules of the lower Court for the registry to ensure that the declarations made in the pre-action protocol form 01 are correct and true before it could accept the processes for filing. It was also not provided in the rule that the failure to file this pre-action protocol invalidates the writ of summons. Even where the claimant refuses or fails to file his originating process along with any of the documents listed in Rule 1 of Order 3 the penalty is only a refusal by the registry to accept his or her processes for filing. Such a claimant would simply have to comply with the requirement of the rule before the registry accepts and register his processes to commence the suit. In the case of Spog Petrochemicals Ltd. v. P.P.L. Ltd. (supra) cited by the Respondent and can also be found in (2017) LPELR – 41853 (CA) or (2018) 1 NWLR (pt. 1600) 321, this Court, per Garba JCA interpreted sub-rule (2) of Order 3 quoted supra and held in page 337, paragraph E-F of the (pt. 1600) of the NWLR that:
“The above provision did not say that failure to accompany a writ of summons with anyone of the processes listed in sub-rule (1) would render

an otherwise valid writ, incompetent. In unambiguous terms, the provisions only provide that where writ was not accompanied by all the processes listed therein, it shall not be accepted for filing by the Registry. However once accepted and assessed by the Registry of the Court and the requisite fees paid by the claimant and duly filed, the consequence of non-compliance with the provisions cannot affect the validity and competence of the writ.
The circumstance of this appeal is that the pre-action protocol form 01 actually accompanied the writ that was accepted and registered by the registry of the lower Court. It is the contents of the form that the appellants challenged as being untrue. Since the writ was accompanied with the pre-action protocol duly declared before the commissioner for oaths, the requirement of the rules of the lower Court has been met and the writ of summons is valid having complied with the said rule. I am in agreement with the learned trial judge when he held in page 9 of the supplementary record of appeal that there is substantial compliance with the rules of Court in the commencement of the suit and he has jurisdiction to entertain

the claims of the Respondent there.”
I endorse the above statement of the law in toto accordingly.
The letter written for the retraction of the alleged libelous material was said to have been written on behalf of the 1st — 2nd respondents vide page 104 — 107 of the record. Pages 105 — 106 thereof stated (unedited) inter alia that —
“In addition you have calculated injury to Mr. Mirko Plath and Mrs. Elizabeth Itegbe in their role as employees of our client in order to directly injure Weststar in its role of the General Distributor of Mercedes Benz auto-spare parts, accessories and allied products in Nigeria. The impact of your calculated strategy to defame our client is immeasurable.”
Mr. Mirko Plath and Mrs. Elizabeth Itegbe mentioned above are the 3rd and 4th claimants at the Court below, respectively, and the phrase ’employees’ contained in paragraph (ii) of the letter in page 106 of the record covers them. The attempt at amicable settlement of the dispute made in the said letter which was filed with the originating summons, therefore, by extension covered the 3rd and 4th respondents with respect to the

pre-action protocol under Order 3 Rule 2(1 )(e) of the Rules of the Court below.
Accordingly, the written statement on oath of one of the three listed witnesses that accompanied the originating process vide pages 20 — 30 of the record sufficed for the purpose of Order 3 Rule 2(c) of the rules of the Court below vide Spog (supra).

The only relevant materials to look at albeit, on the surface, to determine whether the entire action does not disclose a reasonable cause of action is the statement of claim as pleadings were filed and exchanged in the case vide the cases of Uwazuruonye v. The Governor, Imo State and Ors. (2013) 8 NWLR (pt. 1355) 28 at 51 and 57, following Dantata v. Mohammed (2000) 7 NWLR (pt. 664) 176 and Governor, C.B.N. v. Dr. Akingbola (2013) 3 BFLR 128 at 178, Ege Shipping and Trading Inc. v. Tigris International Corporation(1999) 14 NWLR (pt. 637) 70 at 90- 91, Diamond Petroleum International Limited v. Governor, Central Bank of Nigeria and Ors. (2015) 14 NWLR (pt. 1478) at 199, SPDC (Nig.) Ltd. and Anor. v. X. M. Federal Ltd and Anor. (2006) LPELR – 3047.
Accordingly, the respondent was wrong to contend in tandem with

part of the reasoning of the Court below that the issue whether a suit discloses reasonable cause of action should be raised only at the plenary stage of the proceedings. With deference, it could be raised in limine or on the threshold of the proceedings as the appellants did in this case.
The statement of claim is contained in pages 8 — 18 of the record. A glance at the said statement of claim considered with emphasis on paragraphs 26 — 35 thereof where the respondents averred that the alleged libelous correspondence was communicated to Daimler AG, a third party, showed prima facie or on the face of the statement of claim that the alleged libelous statement was published or made known to a third party. The backbone of the appellants’ contention that the suit did not disclose a reasonable cause of action because the alleged libelous matter was not made known to a third party to complete the principal ingredient of the tort of defamation — publication to a third party — is accordingly, untenable.
The fact that the statement of claim may, on the face of it, disclose a weak case, or a case that is not likely to succeed, or a

case that may not have a chance of success, or a case that might not succeed would not call for getting rid of the action in limine for disclosing no reasonable cause of action, unless the case as disclosed on the surface of the statement of claim is hopeless or discloses no cause of action before it will be struck out and the case dismissed for disclosing no reasonable cause of action vide Barbus & Co. (Nig.) Ltd. v. Okafor-Udeji (2018) 11 NWLR (pt. 1630) 257 and the cases (supra) cited by the 1st — 4th respondents.
In other words, as stated in the case of A. -G., Federation v. Kashamu (No.1) (2020) 3 NWLR (pt. 1711) 209 at 254-
“In determining whether there is a reasonable cause of action the papers filed for an action are looked at to see whether at a glance the action might succeed or have a chance of success. It does not matter if the action appears weak, What matters is whether the action is hopeless or indisputably/undoubtedly worthless before the action will be dismissed in limine thus not giving the action the opportunity of a day in Court or plenary trial. The power is sparingly used except the action is plainly or

obviously bad on the face of it. The rationale is that the Court should be wary to deny a claimant access to a hearing on the merit, unless the story told by the claimant in his claim is a fable, fairy tale or myth or one that is improbable or difficult to believe. See Ibrahim v. Osim (1988) 3 NWLR (pt. 82) 257 at 275 relying on the English case of Wenlock v. Moloney and Others (1965) 2 All E.R. 871 (per Danckwetts, L.J.), which in turn relied on the Old English case of Lawrence v. Norrey (Lord) (1886-90) All E.R. Rep. 858 per Lord Herschell. See also Akpan v. Utin (1996) 7 NWLR (pt. 463) 634, Fombo v. Rivers State Housing and Property Development Authority and Anor. (2005) 5 SCNJ 213, reported as Fombo v. Cookey (2005) 15 NWLR (pt. 947) 182.
At the risk of repetition, reasonable cause of action is considered on the premise that the facts contained in the statement of the claim are deemed admitted and whether based on the admitted facts the action has some chance of success and/or discloses some question fit to be decided by the Court, not whether the action is weak or not likely to succeed vide Dantata and Anor. v. Mohammed (2000) 7 NWLR (pt. 664) 176,

Uwazuruonye v. Governor of Imo State (2013) 8 NWLR (pt. 1355) 28, Diamond Petroleum Int. Ltd. v. Governor of Central Bank of Nigeria (2015) 14 NWLR (pt. 1478) 179.”
The appellants had sought the alternative prayer that the entire action be dismissed for disclosing no reasonable cause of action vide pages 182 — 183 of the record. Whether a case discloses a reasonable cause of action should be determined by looking at the statement of claim to ascertain if the aggregate of facts not only give rise to a right to sue but that the action is not certain to fail and/or has some chance of success in which case it is an issue of jurisdiction and could be raised before filing statement of defence not necessarily during plenary stage of the proceedings vide Chevron Nigeria Limited v. Lonestar Drilling Nigeria Limited (2007) 7 S.C. (pt. II) 27 read with the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
Considering the fact that the Court below had determined the issue whether the case raised a reasonable cause of action before it stated that the objection should have been taken at the plenary stage of the proceedings without striking out the

preliminary objection. I do not find any miscarriage of justice in the manner the Court below addressed the issue as it came to the right decision on the said issue vide Ukejianya v. Uchendu (1950) 13 W.A.C.A. 45 at 46 to the effect that what an appellate Court has to decide is whether the decision of the trial Court was right, not whether the reasons for it were wrong; save the misdirection caused the trial Court to come to a wrong decision. So much on the issue of reasonable cause of action.

A claim of professional fees is categorised as special damages vide Union Bank Plc. V. Okpara (supra) cited by the 1st — 4th respondents. The 1st – 4th respondents alleged in the letter dated 20.08.2014 and pleaded in paragraph 29 of the statement of claim and contained in pages 12 — 13 of the record that —
“29. The letter specifically referred to the Claimants in the following words —
“find enclosed few copies of custom duty payment on over 100 vehicles imported by mb automobiles stating the manner in which the Federal Government of Nigeria has been defrauded of billions of naira in connivance with weststar associates limited.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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kindly refer to Section 8 (xx) on page 16 of the dealership agreement that states”……….if any dealer engages in any unethical practice it shall lead to immediate termination of the agreement in order to protect the image of weststar associates’ therefore you are compelled by the laws governing the dealership agreement to terminate the dealership or mb auto with immediate effect and make copy available to us within 48 hours.
In addition, on page 16 Section 9.4″ ……….the dealer shall on request make available to weststar associates the originals of all custom revenue receipts for sighting and furnish copies evidencing payment of custom duties and taxes.
that you Mr. Mirko Plath and Mrs. Elizabeth Itegbe received this information from mb automobiles suppressed this evidence and conspired to defraud the Federal Republic of Nigeria.
you are mandated to uphold the law and ensure that mb automobiles dealership is terminated immediately.
hence we will proceed to lodge an official complaint to Daimler Ag of the non-compliance of the activities of weststar and its affiliate mb automobiles and/or petition the appropriate

government agency on the said activities without excluding the option of going to Court against you if after 48 hours of the receipt of this letter you fail to accede to our demand stated above.” (emphasis supplied).”

The extract from the letter (supra) discloses on fleetingly the tort of injurious falsehood and that the respondents have suffered loss of N30 million in the prosecution of this case showing special damages allegedly flowed from the alleged tort of injurious falsehood thus disclosing a reasonable cause of action.

The letter of 20.08.2014 earlier referred to taken as a whole inclusive of the letter head disclosed on the face of it that the minds of the 2nd appellant and the 6th respondent met in writing the said letter which prima facie showed some evidence of a conspiracy thus disclosing a reasonable cause of action for the tort of conspiracy, in my modest view.

In the result, I find no merit in the appeal and hereby dismiss it and affirm the decision of the Court below with N200,000 costs to the 1st — 4th respondents against the appellants.

BALKISU BELLO ALIYU, J.C.A.: I have had the privilege of reading in draft,

the judgment just delivered by my learned brother Joseph Shagbaor Ikyegh, JCA. I entirely agree with the reasoning and conclusion reached therein and I adopt same as mine. I too find no merit in this appeal and I dismiss it. I abide by the order of Cost made therein.

EBIOWEI TOBI, J.C.A.: I have read in advance the leading judgment of my learned brother, Joseph Shagbaor Ikyegh, JCA, and I see no reason to depart from his analysis and the decision arrived thereat. I have nothing more to add as whatever I say will only amount to a repetition of what my learned brother has dealt on. I also abide by the order as to cost.

Appearances:

Mr. C. Egbuna For Appellant(s)

Mr. I. A. Onyebuchi for the 1st – 4th Respondents

5th – 6th Respondents were served hearing notice but were unrepresented. For Respondent(s)