CHIEF RITA LORI OGBEBOR v. ELDER JOHN ONOJAKPOR & ORS
(2019)LCN/12818(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of March, 2019
CA/B/330/2007
RATIO
COURT AND PROCEDURE: THAT THE COURT CONSIDERS THE FIRST CLAIM BEFORE OTHER CLAIMS
“The law is that the Court considers a main claim first before proceeding to consider alternative claims. It is when the main claim fails that it become incumbent on the Court to decide the alternative claim. See Odutola Holdings Limited & Ors. v. Mr. Kunle Ladejobi & Ors. (2006) 12 NWLR (Pt. 994) 321 and G. K. F. Investment Nigeria Ltd. v. Nigeria Telecommunications PLC (2009) 15 NWLR (Pt. 1164) 344.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
COURT AND PROCEDURE: WHETHER THE COURT CAN RESOLVE ACADEMIC ISSUES
“It is settled that a Court does not waste its precious time and resources in resolving academic questions. See Fawehinmi v. Akilu (1987) 4 NWLR (Pt. 67) 799; Chukwuka Ogudo v. The State (2011) 18 NWLR (Pt. 1278) 1 and Senator Umaru Dahiru v. All Progressives Congress (2017) 4 NWLR (Pt. 1555) 248.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
EVIDENCE: WHETHER NEWSPAPER IS A PUBLIC OR PRIVATE DOCUMENT
“When the above statutory provisions are juxtaposed and read together, it is clear that private newspapers and private magazines fall within the definition and meaning of public documents and only certified true copies thereof, pursuant to the provisions of Section 104 of the Evidence Act, 2011 (Section 111 of the repealed Evidence Act), are admissible in evidence. SeeAgbai Emmanuel Agbai & Anor. v. Independent National Electoral Commission & 6 Ors. (2008) 14 NWLR (Pt. 1108) 417; (2009) All FWLR (Pt. 449) 594 and the very illuminating opinion of Sebastine Tar. Hon. (SAN) in his book: S.T. Hon?s Law of Evidence Act in Nigeria, pages 993 – 995.”PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
CHIEF RITA LORI OGBEBOR Appellant(s)
AND
1. ELDER JOHN ONOJAKPOR
(Substituted by Order of Court made on 10th October 2014)
2. BEIFON OSEWALE
3. STEVEN NWOSU
4. SUN PUBLISHING LIMITED Respondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment):
One Chief Benjamin Okumagba (now deceased) was the plaintiff in Suit No. W/54/2005 wherein the defendants were:
1. Beifoh Osewale
2. Steve Nwosu
3. Sun Publishing Limited
4. Chief Rita Lori Ogbebor
Judgment in the said suit was delivered in favour of the plaintiff (now late and substituted with the 1st respondent ? Elder John Onojakpor) on the 23rd day of April, 2007.
The claim in the suit by late Chief Benjamin Okumagba was for the follow relief:
(a) The sum of N100,000,000.00 (One Hundred Million Naira) on the footing of aggravated and exemplary damages for libel contained the SUN Newspaper of November 13th 2003, wherein the plaintiff was maliciously accused of being a murderer and sponsor of assassins.
(b) A retraction of the said publication accompanied with unconditional apology in subsequent publication of the 3rd defendant’s newspaper.
(c) An injunction to restrain the defendants and each of them, by themselves or by their servants or agents or otherwise however, from publication of the said words, or any of them or of any similar words.
The 2nd, 3rd and 4th respondents, who were the 1st, 2nd and 3rd defendants in the trial Court, filed a joint statement of defence in which they denied the claim on the ground that “the words complained of were published on an occasion of qualified privilege in that they were published in the discharge of a public duty.”
The appellant, as 4th defendant in the trial Court, filed a separate statement of defence in which she denied the publication complained of and, in the alternative, she pleaded that the words complained of, if proved, were taken out of con and were not defamatory. In addition, she relied on the defences of justification, fair comment and qualified privilege.
In its judgment, the trial Court awarded one million naira as damages against the appellant and N200,000.00 damages against each of the 2nd, 3rd and 4th respondents. Each of these parties were also ordered to pay 10,000.00 costs in favour of the 1st respondent. The trial Court, however, dismissed reliefs (b) and (c) in the statement of claim.
The appellant was not satisfied with the decision of the trial Court and she filed a notice of appeal containing 12 grounds, which notice is on pages 182 to 199 of the record of appeal. The appellant’s brief was filed on 10/11/2015 but it was deemed as properly filed on 06/12/2016. In the said brief, the following four issues were formulated for determination:-
ISSUE ONE: Whether the vendor’s copy of alleged newspaper publication, instead of a Certified True Copy was wrongly admitted in evidence and accepted as proof of libel in terms of Exhibit A, A1 and A2, the newspaper publication (Saturday Sun) of 15th November 2003 (Ground 1).
Alternatively
ISSUE TWO: Whether the learned trial judge came to a correct finding on the evidence in holding that Exhibits A, A1, A2 were libellous of the plaintiff (Grounds 2 and 10).
ISSUE THREE: Whether the appellant did not establish complete defence of justification, fair comment and/or qualified privilege contrary to the finding of the learned trial judge (Grounds 3, 4, 5, 6, 7, 8, 9 and 12).
ISSUE FOUR: Whether the award of one million naira against the 4th defendant/appellant was unmerited, arbitrary and excessive (Ground 11).”
The 1st respondent filed his brief on 17/11/2017 and in it he raised a preliminary objection to the hearing of the appeal. The 1st respondent then distilled two issues for determination in respect of the substantive appeal as follows:
1. Whether the Court of Appeal can properly and effectually exercise its appellate functions of re-hearing and determining the issues raised by the appellants notice and grounds of appeal in the absence of the evidence (both oral and documentary) tendered at the trial Court.
2. Whether this is an appeal which the Court of appeal can exercise its appellate jurisdiction to interfere with the finding of facts made by the learned trial judge who had the singular advantage of hearing the parties and their witnesses and observing their demeanor in the witness box.
The 2nd, 3rd and 4th respondents did not file any brief.
The 1st respondent neither referred to nor argued his preliminary objection and the said objection is deemed abandoned. The law is that a preliminary objection not moved before the hearing of an appeal is deemed abandoned and it should be struck out. See Fayemi v. Oni (2010) 17 NWLR (Pt. 1222) 326; Akpan v. Bob (2010) 14 NWLR (Pt. 1223) 421 and Peoples Democratic Party v. Victor Umeh (2017) 12 NWLR (Pt. 1579) 272.
The 1st respondent’s preliminary objection, having been abandoned, is hereby struck out.
As can been gleaned from the four issues formulated by the learned counsel for the appellant, the main issue for determination is Issue 1, since Issues 2, 3 and 4 are in the alternative thereto. It is when the main issue fails that it will become necessary for the Court to consider the alternative issues. The law is that the Court considers a main claim first before proceeding to consider alternative claims. It is when the main claim fails that it become incumbent on the Court to decide the alternative claim. See Odutola Holdings Limited & Ors. v. Mr. Kunle Ladejobi & Ors. (2006) 12 NWLR (Pt. 994) 321 and G. K. F. Investment Nigeria Ltd. v. Nigeria Telecommunications PLC (2009) 15 NWLR (Pt. 1164) 344.
I think that the principle of law on first considering a main claim before an alternative claim applies to issues identified in the alternative in an appeal.
I will therefore, first treat the main issue in this appeal, namely: Issue I.
ISSUE NO. 1
Whether the vendor?s copy of alleged newspaper publication, instead of a Certified True Copy was wrongly admitted in evidence and accepted as proof of libel in terms of Exhibits A, A1 and A2 ? the newspaper publication (Saturday Sun) of 15th November 2003.
The learned counsel for the appellant referred to Section 4(1) and (7)(c) of the National Library Act, Cap. N56, Laws of the Federation of Nigeria, 2004; Section 15 of Newspaper Law, Cap. 105, Laws of Bendel State, 1976 and Section 102 of the Evidence Act, 2011 and submitted that ?the admissible form of newspaper is a certified true copy?. To buttress this argument, learned counsel referred to several cases, including Oneh v. Obi (1999) 7 NWLR (Pt. 611) 487; Agbai v. Independent National Electoral Commission (2008) 14 NWLR (Pt. 1108) 417 and Ngige v. Obi (2006) 14 NWLR (Pt. 999) 1.
Learned counsel submitted that the vendor’s copy of Saturday Sun Newspaper Exhibits ‘A’, ‘A1’ and ‘A2’ relied upon by the 1st respondent ‘could not qualify as original to be tendered by a purchaser from the vendor even by laying foundation’. He contended that ‘Exhibits A, A1 and A2 should therefore have been expunged from the Court’s record and discountenanced thereby leaving the libel claim devoid of admissible evidence of publication to prove same.”
The Court was urged to resolve this issue in favour of the appellant.
I have read the 1st respondent’s brief and nowhere therein did he proffer any answer, reply or response to the appellant’s arguments on the issue of admissibility of Exhibits ‘A’, ‘A1’ and ‘A2’.
I agree with the opinion of the learned counsel for the appellant that a ruling wrongly rejecting or admitting a piece of evidence, in the course of trial, is an integral part of the trial which can be appealed against as an error in the final decision of the trial Court. See case of Itumo Onwe & Ors. v. Eze Nwaogbuinya & Ors. (2001) 3 NWLR (Pt. 700) 406 at 418, per Ejiwunmi, JSC; where the Supreme Court stated the law as follows:
In my humble view therefore, it may be said, that ordinarily, where an appellant failed to appeal against an interlocutory order or ruling of a trial Court within the time prescribed by S.25(2)(a) of the Court of Appeal Act 1976, he must obtain the leave of Court for his appeal to be competent. Where on the other hand, the complaint of the appellant against the ruling is concerned with the wrongful admission of evidence or wrongful rejection of evidence, such an appellant would not require the leave of Court as the ruling appealed against is not regarded as interlocutory decision. The appellant may therefore include the ground of appeal against that ruling of the trial Court when appealing against the final judgment of the trial Court.
(Emphasis supplied by me)
I have examined Exhibits ‘A’, ‘A1’ and ‘A2’ complained of by the learned counsel for the appellant. Exhibit ‘A’ is ‘SATURDAY SUN, Vol. 1 NO. 44 of November 15, 2003’ and Exhibits ‘A1’ and ‘A2’ at are pages 16 and 25 thereof. These exhibits are not certified as true copies of the said Saturday Sun and/or the pages thereof.
The law is now settled that a private newspaper, such as the Saturday Sun in issue, is a public document by and virtue of the combined provisions of Sections 2(2)(a) and 4(1) and 4(7)(c) of the National Library Act, Cap. N56, Laws of the Federation of Nigeria, 2004; and Section 102 (b) of the Evidence Act, 2011. For the avoidance of doubt, Sections 2 (2) (a) and 4 (1) and 4 (7)(c) of the National Library Act, 2004, respectively, provide as follows:
2 (2) (a) For the purpose of carrying out the general functions imposed on the Board by Subsection (1) of this Section, it shall be the duty of the Board, so far as its resources permit.
(a) to assemble, maintain and extend a collection of books, periodicals, pamphlets, newspapers, maps, musical scores, films and recording and such other matter as the Board considers appropriate for a library of the highest standing.
4 (1) The publisher of every book published in Nigeria shall, within one month after the publication, deliver at his own expense to the National Library three copies of the book, two of which shall be kept in the National Library for permanent preservation and one of which shall be sent by the Director to the Ibadan University Library.
4 (7) In this section ‘book’ includes –
(a)
(b)
(c) collective works such as encyclopaedia, dictionaries, year books or similar works, newspapers, magazines and similar periodicals.
Section 102 (b) of the Evidence Act provides thus:
102 The following documents are public documents-
(a)
(b) public records kept in Nigeria of private documents.
When the above statutory provisions are juxtaposed and read together, it is clear that private newspapers and private magazines fall within the definition and meaning of public documents and only certified true copies thereof, pursuant to the provisions of Section 104 of the Evidence Act, 2011 (Section 111 of the repealed Evidence Act), are admissible in evidence. SeeAgbai Emmanuel Agbai & Anor. v. Independent National Electoral Commission & 6 Ors. (2008) 14 NWLR (Pt. 1108) 417; (2009) All FWLR (Pt. 449) 594 and the very illuminating opinion of Sebastine Tar. Hon. (SAN) in his book: S.T. Hon’s Law of Evidence Act in Nigeria, pages 993 – 995.
In this case, Exhibits ‘A’, ‘A1’ and ‘A2’ were not certified and they were wrongly admitted in evidence by the trial Court. Worse of it, Exhibit ‘A’ was obtained from an alleged newspaper vendor and it was not tendered by its publisher. Further, it was not produced from proper custody to enable it enjoy the presumption of genuineness under Section 148(c) of the Evidence Act, 2011. Since Exhibits ‘A’, ‘A1’ and ‘A2’ were inadmissible but were wrongly admitted by the trial Court, they are hereby expunged from the record of the Court.
The 1st respondent’s claim was anchored on alleged libel by the appellant. ‘Libel’ according to Robert D. Sack & Dandra S. Baron, in their book, Libel, Slander, and Related Problems, 2nd edition, (1994) page 67, is written or visual defamation’. The learned authors of Black?s Law Dictionary, Deluxe Ninth Edition, page 999, define ‘Libel’ is ‘a defamatory statement expressed in a fixed medium, especially writing but also a picture, sign or electronic broadcast.’
The libel complained of was pleaded in paragraph 7 of the 1st respondent?s statement of claim as follows:-
7. On the 15th of November, 2003 defendants falsely and maliciously wrote, printed and published or caused to be printed and published at page 16 Volume 1 No. 14 a purported interview granted by the 4th defendant and which said interview contained the following false, malicious and defamatory statement concerning the plaintiff.
(i) ‘He wants to eliminate the Itsekiris
(ii) ‘That does not mean he should kill me. That he should sent assassins to come and kill me.’
(iii) ‘I have not tried to kill Okumagba Ok’ I have not hired anybody or to go and kill Okumagba. We can disagree. If we disagree, it doesn’t mean I am going to hire anybody to go and kill Okumagba. But if he hires people to kill me, that is criminal’
The law is that, to succeed in a claim for libel, the actual defamatory words complained of must be pleaded and proved by the plaintiff. And to prove the actual libellous words complained of, the plaintiff must put in evidence the original document containing the alleged libel or an admissible secondary evidence thereof. In the case of Chief Emmanuel Ogunbadejo v. Otunba A.L.A. Owoyemi (1993) 1 NWLR (Pt. 271) 517 at 533 ? 534; Nnaemeka-Agu, JSC; the Supreme Court comprehensively stated the duty on a plaintiff to prove a claim for libel and the exceptions to producing the original document containing the alleged libel as follows:
Now, the first duty of a plaintiff who comes to Court in a case of libel contained in a document is, subject to recognized exceptions, to produce and tender the whole of the original document complained of as well as any connected documents which are capable of throwing any light on the meaning of the words complained of, to be read and construed by the Court. This is a duty which the plaintiff owes to the defendant and the Court. See Plato Films v. Speidel (1961) A.C. 1126, at pp. 1143-1144; also R. v. Lambert (1810) 2 Camp. 398, at pp. 400-401, per Lord Ellenborough.
This important rule obliging the plaintiff to produce and tender the whole of the original document complained of can only be relaxed in three situations. The first is where secondary evidence is admissible and the plaintiff has laid the proper foundations and taken the necessary steps for admission of such secondary evidence (see Johnson v. Hudson (1936) 7 A, and E, 233n, 234n; also Rainy v. Bravo (1972) L.R. 4 P.C. 287. The second is where the document in question is shown to be in the possession of the defendant or his solicitor and the plaintiff has served upon them a proper notice or subpoena duces tecum but they have failed to produce it. See Doe & Phillips v. Morris (1835) 3A and E.4).
The last is where it has been shown that the libel is contained in a document or in such a form which it is physically impossible or highly inconvenient to produce same in Court: see Owner v. Beehive (1914) 1 K.B. 105, at p. 108; also Sayer v. Glossop (1948) 2 Exch. At p. 411. A good example of the last exception is where the alleged libel is written in an immovable structure the production of which in Court would be impossible or highly inconvenient. Unless a plaintiff who comes to Court in a case of libel based on a document or other publication in a permanent form can bring his case within one of the above three exceptions, the rule that he must produce and tender not only the whole of the original document said to contain the libel but also other connected documents has full force and effect. If the document is in the possession of a person who is not a party to the proceedings but is within jurisdiction, the plaintiff must serve him with the appropriate subpoena to come and produce the document. See on these: Gately: On Libel & Slander (7th Edn.) paragraph 1209 to 1213.
In this case, the 1st respondent did not produce any admissible document containing the alleged libel complained of and his claim for libel ought to fail.
I do not intend to belabour the resolution of this issue. For all the reasons given above, this issue ought to be resolved in favour of the appellant. Accordingly, this issue, that is Issue 1, is hereby resolved in favour of the appellant.
As stated earlier, it is only when a main issue fails that it will become necessary to resolve alternative issues. Having resolved the main and live issue in this appeal in favour of the appellant, it is not necessary for me to proceed to resolve the alternative issues articulated by the learned counsel for the appellant.
In any case, the alternative issues, namely: Issues 2, 3 and 4 formulated by the appellant have become academic in view of my decision that the alleged libelous publication was not proved as required by law. It is settled that a Court does not waste its precious time and resources in resolving academic questions. See Fawehinmi v. Akilu (1987) 4 NWLR (Pt. 67) 799; Chukwuka Ogudo v. The State (2011) 18 NWLR (Pt. 1278) 1 and Senator Umaru Dahiru v. All Progressives Congress (2017) 4 NWLR (Pt. 1555) 248.
In conclusion, having resolved the live issue in this appeal in favour of the appellant, the appeal succeeds and it is hereby allowed. Consequently, the judgment of the trial Court, per Hon. Justice P.J.O. Anigboro delivered on the 23rd day of April, 2007 in Suit No. W/54/2005 is hereby set aside.
The parties are ordered to bear their respective costs.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I was served with a draft copy of the lead Judgment prepared by my learned brother M.A.A. ADUMEIN, JCA in this appeal. His Lordship has ably treated all the salient issues canvassed by Learned Counsel to the parties in this appeal before arriving at his conclusion. I am in entire agreement with his reasoning and the conclusion he arrived at that this appeal is meritorious and should be allowed. I abide by the order as to costs made by ADUMEIN JCA in the lead Judgment.
PHILOMENA MBUA EKPE, J.C.A.: I read the lead judgment in draft of my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA earlier given to me.
I am in total agreement with the reasoning and conclusions arrived therein that this appeal has merit and ought to be allowed.
I too allow the said appeal and set aside the Judgment of the trial Court delivered on the 23/4/07 by Justice P.J.O. Anigboro in Suit No. W/54/2005.
Appeal allowed.
Appearances:
Miss O. KeshinroFor Appellant(s)
D. O. Jarikre, Esq.For Respondent(s)
