CHIEF SEN. LUKA GWOM & ANOR v. PRINCE S. A. OROKOYO (2015)

CHIEF SEN. LUKA GWOM & ANOR v. PRINCE S. A. OROKOYO

(2015)LCN/7906(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 17th day of June, 2015

CA/J/117/2012

RATIO

PRACTICE AND PROCEDURE; PLEADINGS; WHAT CONSTITUTE PLEADINGS

Pleadings constitute a notice of the case each party intends to canvass at the trial. See Obmiami Brick and Stones Nigeria Ltd. vs. ACB Ltd (1992) 3 SCNJ 1 at 35; Uwegba vs. Attorney-General of Bendel State (1986) 1 NWLR (Pt.16) 303 at 317 and O.H.M.B. vs. B.B. Apugo & Sons Ltd. (1995) 8 NWLR (Pt.416) 750 at 756. per. JOSEPH TINE TUR, J.C.A.

TORT: LIBEL; THE MATERIAL CAUSE OF ACTION IN LIBEL AND THE MEANING OF PUBLICATION

TORT: TORT OF DEFAMATION; WHAT IS INVOLVED IN THE TORT OF DEFAMATION

Two vital organs of a human being play a very vital role in an action founded on “defamation of character”. They are the eyes and the ears. In Winfield and Jolowicz On Tort, 1975, 10th edition, page 240, the authors define “Defamation” as “…the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally; or which tends to make them shun or avoid that person.” At page 242 of the same work appears the following passage:
“A libel consists of a defamatory statement or representation in permanent form; if a defamatory meaning is conveyed by spoken words or gestures it is slander. Examples of libel, as distinguished from slander, are a picture, statue, waxwork effigy, or any writing, print, mark or sign exposed to view. On the other hand, defamation in the manual language of the deaf and dumb, and mimicry and gesticulation generally (e.g. holding up an empty purse to indicate that the plaintiff has robbed the defendant) would probably be slander, because the movements are more transient. These examples show that it is only broadly true to say that libel is addressed to the eye, slander to the ear. Moreover, broadcasting, both radio and television, and theatrical performances are, by statute, treated as publication in permanent form, i.e. as libel.” per. JOSEPH TINE TUR, J.C.A.

JUSTICES

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria

Between

1. CHIEF SEN. LUKA GWOM
2. CHIEF DAVID R. NAH Appellant(s)

AND

PRINCE S. A. OROKOYO Respondent(s)

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): This appeal was filed by the defendants against the judgment delivered by Hon Justice B. Nimpar, J., (as he then was) sitting in the Plateau State High Court of Justice No. 4, Jos on 29th February, 2012 in favour of the respondent who was the plaintiff in the Court below. The respondent founded his cause of action on libel based on two publications dated 31st October, 2005 and 6th December, 2005 which he claimed was written by the appellants out of malice and hatred to destroy the respondent’s popularity among the Kabong Community he had served regarding a water project.

The respondent testified as PW1 and tendered Exhibits “1”-“4”. PW2 to PW5 testified thereafter and the respondent closed his case. The appellant testified as DW1 and tendered Exhibits “4”-“6”. Learned Counsel called DW2-DW5 who testified, were cross-examined and re-examined. Learned Counsel submitted written addresses which were adopted. The learned trial Judge considered them and on 29th February, 2012 delivered judgment holding at page 172 lines 9-12 of the printed record as follows:
“Damages follow event and here established, the claim for damages also succeeds and general damages in the sum of N1,000,000.00 Naira (One Million Naira) only is hereby awarded in favour of the plaintiff against the defendants jointly and severally. The plaintiff’s claim succeeds.”

Five grounds accompany the Notice of Appeal filed on 16th March, 2012 by David N. Ansho, Esq. of Counsel representing the appellants. The following issues were distilled for determination in the appellants brief filed on 8th July, 2012 to wit:
“1. Whether the trial Court properly evaluated the evidence before the Court, when it arrived at the decision subject of this appeal.
2. Whether the failure of the respondent to proof (sic) publication of the letters alleging defamation is not fatal to his case.
3. Whether having not proved by his witnesses what their mindset was when they read the letters, the Court was right in deciding the objective test of ordinary men in favour of the respondent.
4. Whether it was for the appellants not the respondent to prove the falsity of the letters to people the basis of the defamation, and particularly the issue of receipt issuance or not.
5. Whether without establishing malice or hatred against the respondent, aggravated damages of such magnitude was reasonable and justifiable.”

The respondent filed a brief of argument on 3rd December, 2012 with a deeming order made by this Court on 4th December, 2012 subject to payment of penalties. The following issues were distilled for determination to wit:
“(a) Whether the respondent (as plaintiff in the Court below) proved its claims against the appellants (as defendants in the Court below) with preponderance of evidence or on the balance of probabilities as required by law (Grounds 2, 3 and 4).
(b) Whether the Court below was able to evaluate the evidence of the parties in this suit, as it were, (now on appeal), and ascribed a probative value to the evidence and placing same on the proverbial imaginary scale before arriving at its verdict (Ground 1).
(c) Whether the Court of Appeal should interfere with the award of N1,000,000.00 (One Million Naira) awarded by the trial Court to the respondent as general damages (Ground 5).”

The duty of an appellant is to formulate what he considers to be issues arising in the appeal, taking into consideration the amended or additional grounds of appeal. See Order 18 rule 3(1) of the Court of Appeal Rules, 2011. The respondent has not cross-appealed nor filed a Respondent’s Notice. Order 18 rule 4(2) of the Rules (supra) provides that the respondent shall answer in the brief “all material points of substance contained in the appellant’s brief and contain all points raised therein which the respondent wishes to concede as well as reason why the appeal ought to be dismissed…” Accordingly I shall confine myself to the issues formulated by the learned Counsel to the appellants for determination in this appeal. See Atanda & Ors. vs. Akanji & Ors. (1989) 2 NSCC 511 at 537.

I have read the briefs and the exhibits admitted during the trial. The judgment of this Court will be based on the pleadings, the exhibits and the reasoning of the learned trial Judge. See Order 18 rule 3(3) of the Court of Appeal Rules, 2011. The five issues distilled for determination can be condensed or compressed into one for the purpose of convenience. That is permissible by decided authorities. See Anie vs. Uzorka (1993) 8 NWLR (Pt.309) 1 at 16-17.

Issues 1-4 deals with whether the respondent proved publication of the alleged libel to be entitled to damages. Issue 5 complains about the quantum of damages awarded the respondent by the learned trial Judge. Both can be treated as a single issue for without publication there can be no cause of action sounding in damages.

The principal argument by the learned Counsel to the appellant is that looking at the oral and documentary evidence adduced at the trial, publication of libelous matter was not proved and the learned trial Judge ought not to have awarded damages in favour of the respondent. Learned Counsel referred to the oral evidence of the respondent and the witnesses called by the respondent, citing Mamman vs. Salaudeem (2005) 18 NWLR (Pt.958) 478; Nsirim vs. Nsirim (1990) 3 NWLR (Pt.138) 285 and Ayeni vs. Adesina (2007) NWLR (Pt.1033) 240 at 260. Learned Counsel contended that it is the reaction of the persons to whom the libelous matter was published that was of importance, citing Iwueke vs. I.B.C. (2005) 17 NWLR (Pt.955) 447 and Slim vs. Daily Telegraph Ltd. (1968) 2 Q.B. 157 at 170. This Court was urged to allow the appeal and set aside the damages awarded the respondent by the learned trial Judge.

The contention of the respondent’s learned Counsel is that libel was proved at the trial. The learned Counsel took this Court through the oral and documentary evidence adduced by the respondent at the trial. After citing the meaning of “defamation” in Black’s Law Dictionary, 9th edition, page 480, Counsel argued that the respondent was defamed in the letters of 31st October, 2005 and 6th December, 2005 marked Exhibits “2” and “3” respectively. Learned Counsel further referred to “The Law of Defamation” by Laurence H. Eldredge, 1978 edition 12 at page 77 and Ugo vs. Okafor (1996) 3 NWLR (Pt.438) 542 at 561. Counsel submitted that the learned trial Judge evaluated the oral and documentary exhibits before finding the appellants liable and this entitled the respondent to damages. Counsel urged that the appeal should be dismissed. The judgment of the learned trial Judge should be upheld.

The following facts are pleaded in paragraphs 4-21 of the statement of claim:
“4. On or about 31st October, 2005 the defendants falsely and maliciously wrote and published to:
(a) State Security Service,
(b) Central Intelligent Bureau,
(c) Police Station Officer, Kabong,
(d) All the Hamlets Heads,
(e) All Kabong Community Elders,
(f) The Kabong Youths,
(g) Kabong Community Development Association/Club,
(h) Kabong, Rukuba and Utan Water Aid Communities.
Of and concerning the plaintiff, the words following, that is to say, “The role of one Arokoyo in Kabong financial matters” the collection of
(i) Money without issuing receipts and report and
(ii) Involvement in NEPA N800,000.00 affairs and
(iii) Community Security Vanguard collection and embezzlement of substantial amount of money” meaning
5. The said words in the material and ordinary meaning and were understood to mean that the plaintiff is a criminal who committed criminal breach of trust, who cannot be trusted with public fund, who cannot be trusted with public responsibility, that he cannot hold public office, he is a thief and he is a person who embezzled public fund.
6. Again on or about 6th day of December, 2005 the 1st defendant falsely and maliciously wrote and published to:
(i) The Secretary to the State Government, Plateau State.
(ii) His Royal Highness, Da Sale Mandyeng Sha Dagwom Kabong, Jos North L.G.C.
(iii) Jos North T.I.C. Chairman.
(iv) State Coordinator Water Aid.
(v) D.P.O. Kabong.
(vi) Orokoyo
(vii) And others.
Of and concerning the plaintiff, that is to say: The new committee in place, had earlier on in a letter dated 20th October, 2005 alerted the Board and the Police of Orokoyo’s dubious role tagged “Advanced, Corruption perception Index.”
“It is believed that the truth never changes and Orokoyo and his collaborators can only do justice to themselves and others by submitting the report and let us see what is there.” This was sequel to alarming reports on this fellow from all parts, particularly Chijoke Owuamanam, in an affidavit demanding his money N28,550.00, this man Orokoyo has collected for no reason! Kuwuri (Angwar Soya) N47,000.00 with the list growing huger from individuals to satellite villages, hamlets and even family compounds! What is most needed is just the report from this fellow who side tracked all others. And made himself the revenue collector, treasurer, cashier, financial secretary, purchasing officer, auditor, public relation officer, name it as the list of positions grow longer.
But when this clay fellow was asked to give to the new committee to see what and what he had done, who and who are the creditors and the debtors, ironically he started running from pillar to post, trying to get support from those he can easily mislead to cover himself like a drowning person! This we believe is a criminal activity and indeed inept corruption no one should be surprised with this from the man who supposed to help the Kabong Community, now turns round attempting to destroy the community.
Therefore, the Board and Jos North L.G.C. we held in the highest esteem cannot be misled by political hungry crazy jester. No one had appointed anyone for life in any position whatsoever. We must know what happened to our monies collected personally by our brother Orokoyo no matter the surrounding god fathers and god mothers, and tactics at his protection.
It is believed that truth never changes and Orokoyo and his collaborators can only do justice to themselves and others by submitting the report and let us see what is there.”
7. The said words in their material and ordinary meaning meant and were understood to mean:
“The plaintiff is a criminal, a dubious person, a person who neck deep in advanced corruption, a person who collected money from the public without accountability, public office, he is also a duper and he is very irresponsible and cannot be trusted at all because he has embezzled thousands of Naira of public fund.
8. The plaintiff shall aver at the hearing of the suit that the plaintiff and his committees submitted their reports to the appropriate authorities. All the reports including financial reports are hereby pleaded and relied upon at the hearing of this suit.
9. The reports were compiled by the committees concerned and forwarded to the appropriate authorities.
10. The plaintiff shall aver at the hearing of this that the plaintiff did not embezzle any money entrusted in charge of the water project committee of which he was the Vice-Chairman.
11. The plaintiff shall aver at the hearing of this suit that as the Chairman of the police community relation committee, he tendered the account of his stewardship and submitted his report accordingly. The plaintiff shall rely on the said report concerning the Police Community Relation Committee, Kabong Chapter at the hearing of this suit.
12. The plaintiff shall aver at the hearing of this suit that under the NEPA Consumers consultative committee, the report of the committee including the financial report was submitted and the report is pleaded.
13. The plaintiff shall aver at the hearing of this suit that without formally dissolving the elected members of Kabong Water Project Committee, the 1st defendant and others appointed themselves on 7th September, 2005 as Kabong Water Aid Committee in place of the elected committee of which the plaintiff is the Vice-Chairman. The plaintiff pleads the letter of 7th September, 2005 appointing the 1st defendant and others. 1st defendant is given notice to produce the original of the said letter.
14. The defendant particularly 1st defendant wrote the two defamatory letters of 31st October, 2005 and 6th December, 2005 out of malice and hatred they have for the plaintiff despite he worked very hard and conscientiously for his community using his time, talent and resources. The two letters are pleaded and the defendants are given notice to produce the original of the two letters.
15. The plaintiff shall aver at the hearing of this suit that all he did was to serve his community and that he used his own money of which he has not been paid up till now.
16. That after the 1st defendant and others appointed themselves on the 7th September, 2005, the self-appointed committee collected the sum of N150,000.00 which was meant for the plaintiff’s committee.
17. The plaintiff shall aver at the hearing of this suit that apart from the money owed to the plaintiff there other creditors which the committee took materials on credit who have not been paid.
18. The plaintiff shall aver at the hearing of this suit that defendants have no reason to write the two letters of 31st October, 2005 and 6th December, 2005. They were written out of malice and hatred they have for the plaintiff having seeing the efforts he has put into the water project, and the plaintiff has become very popular among the community.
19. The plaintiff shall aver at the hearing of this suit that as a result of the said publications, he is no more enjoying the confidence and trust he was enjoying as the Community leader, the Chairman of Kogi State, Plateau State Branch and other committees he was heading and/or as member, many people have shunned him and avoided the plaintiff and a person who cannot be trusted, criminal minded person and dishonest person, crazy jester, dubious person and a person with advanced corruption perception index.
20. By reason of the publication of the words in the two letters of 31st October, 2005 and 6th December, 2005, the plaintiff has been greatly injured in his credit and reputation and has been brought into scandal odium and contempt and the plaintiff has suffered damages.
21. Wherefore, the plaintiff claims jointly and severally against the defendants:
(i) The sum of N10,000,000.00 (Ten Million) as aggravated damages.
(ii) An injunction restraining the defendants, their agents or servants or otherwise publishing any of the defamatory words.”

The appellants responded in paragraphs 4-29 of their Amended Statement of defence as follows:
“4. The defendants deny paragraph four of the plaintiff statement of claim and aver that they were constituted along with other members into a new committee for Kabong Water Aid Project by the Dagwom Kabong District on the 7th day of September, 2005. Letter constituting the committee is hereby pleaded and would be relied upon at the trial.
5. The 1st defendant particularly state that even before the New Committee, he was an adviser to the old committee which the plaintiff was the Vice-Chairman. List of the committee members with advisers is hereby pleaded and would be relied upon at the trial.
6. The defendants aver further that before the constitution of the new committee by the Dagwom Kabong District the first committee was dissolved to the knowledge of members of the old committee. Letter dissolving the committee is hereby pleaded and would be relied upon at the trial.
7. The defendants further aver that after the dissolution of the 1st committee and their appointment into the new committee, and because of the desire of Kabong and environs to have water they resume work immediately.
8. Defendants aver that on resumption of work, so many complaints were received about the activities of the former Vice-Chairman (plaintiff). This include his meddling into NEPA issues of N800,000.00 collection of money to the tune of N48,000 without receipt, and many other collections without receipt as they came to the new committee was compiled. The following documents are hereby pleaded and would be relied upon at the trial.
1. Letter of complaint dated 13/9/2005.
2. Letter dated 30/9/2005.
3. The compiled lists of collection without receipts.
9. Defendants aver that it was after series of complaints to the committee which he is Chairman and also to him as adviser to the old committee that the letter was written in good faith demanding the plaintiff to submit reports of the Kabong Water Aid Project.
10. Defendants aver that, they are aware that the plaintiff under paid the securities who were supposed to be paid N2,000 but were paid only two hundred by the plaintiff resulting to the abandoning of the security work by the security employees. The balance per head of each security to the tune of N1,800 is not accounted for till today by the plaintiff. It is cumulative of the foregoing that paragraph seven of the letter dated the 31st October, 2005 was written.
11. Defendants never intended to insult, castigate, de-esteem the plaintiff or any member of the old committee at all. All that was written in the letter of 31st October, 2005 were true facts to which the defendants only required in writing reports on the issues from the plaintiff.
12. The defendants denied paragraph five of the plaintiff’s claim and states that the said words as used were fair, and just in material and ordinary meaning in the circumstances. The defendants further denied that the words as used were never meant to criminalize, defame, insult or injure the plaintiff, that he cannot be trusted with public responsibility, or a thief, neither is he a person who embezzled public fund.
13. The defendants denied paragraph six of the statement of claim and aver that the words as used were written following the facts and circumstances of complaints received against the plaintiff from various person within and outside Kabong Community with regards to the conduct of the plaintiff while in office as a Vice-Chairman Kabong Water Aid Committee. A sworn affidavit by one Mr. Chijioke Owuamamam, dated 21st October, 2005, requesting the assistance of the New Committee to pay him his money owned amounting to N28,550.00 is hereby pleaded and shall be relied upon at the hearing of this suit.
14. The defendant further denied paragraph six of the plaintiff’s claim and state that the 1st defendant on or about 6th December, 2005 never falsely or maliciously wrote and published to:
(i) The Secretary to the State Government, Plateau State.
(ii) His Royal Highness, Da Sale Mandyeng Sha, Dagwom Kabong, Jos North L.G.C.
(iii) Jos North T.T.C. Chairman.
(iv) State Co-ordinator Water Aid.
(v) D.P.O. Kabong.
(vi) Mr. Orokoyo, and or
(vii) Some other persons.
The 1st defendant states that why he wrote the plaintiff as in the six paragraph was after the affidavit of Chijioke dated 21st October, 2005 a letter of complaint dated 13th September, 2005, and letter dated 30th September, 2005. The defendant states further that the reference to the plaintiff was in good faith even if harsh words were used. No malice was conceived or desired. The defendant shall put the plaintiff to strictest proof of same.
15. The defendants vehemently deny paragraph seven of the plaintiff’s claim and states that the said words in their material and ordinary meaning never meant and is understood to mean that the plaintiff is a criminal, dubious, duper or corrupt. The defendants further state that the words used in the circumstances were fair and just, as the whole intention and purpose was for the plaintiff to submit report and account for his stewardship while serving as a Vice-Chairman of Water Aid Project, Kabong District.
16. The defendants denied paragraph eight of the plaintiff’s claim and state that the plaintiff and his committee never submitted their reports to the appropriate authorities or any authority at all. Neither did they submit to members of the new committee as desired.
17. The defendants denied paragraph nine of the plaintiff claim as no report were compiled and sent to any authority and shall subject him to the strictest proof of same at the hearing of this suit.
18. The defendants in answer to paragraph ten of the plaintiffs claim aver that reports of stewardship required from plaintiff would have removed the fear in people resulting to complaints to the new committee and all the letter to the plaintiff, the basis of this suit would have been unnecessary. The defendants will put the plaintiff to proof of same.
19. The defendants in answer to paragraph eleven of the plaintiff’s claim would insist on plaintiff establishing his good stewardship to the people on water project by way of reports and issue of receipts and not on police community relation as that issue is unknown to them and not a fact constituting the basis of this suit. The defendant aver further that if the plaintiff was too good and very meticulous at writing reports on his activities as relates to his public stewardship as police community chairman. The found it difficult why he should be keen at the reports not complained of and of no use to this case in material particular, and very unwilling to submit the Kabong Water Aid Project report as requested.
20. The defendants deny paragraph twelve of the claim and will put the plaintiff to proof.
21. The defendant deny paragraph thirteen of the claim and aver that, the old committee which the plaintiff was Vice-Chairman was formally dissolved by the authority that constituted it. 1st defendant and others did not appoint themselves into any Kabong Water Aid Committee but were appointed by the Dagwom of Kabong. Both letter dissolving the plaintiff committee and the letter appointing the defendants into the new committee are hereby pleaded and would be relied upon.
22. The defendants deny paragraph fourteen of the claim and particularly 1st defendant state that he wrote the letters in good faith as both adviser to the old dissolved committee which the plaintiff was member and as Chairman of the newly constituted committee. None of the letters was written with ill motive or bad faith.
23. The defendants deny knowledge of the plaintiff using his personal money to execute the Kabong Water Project since the host community was willing and members contributed for the sustenance of this project willingly. Defendants would put the plaintiff to the strictest proof of same.
24. The 1st defendant did not appoint himself neither did the second defendant or other committee members. The defendants categorically state that they were appointed by the Dagwom of Kabong and the other members of the committee too. The defendants deny ever collecting the sum of N150,000.00 from any body or authority which was meant for the plaintiff for any reason whatsoever and will put the plaintiff to the strictest proof of same.
25. The defendants deny knowledge of any money owed the plaintiff. Defendants aver that they have no knowledge of creditors being on the plaintiff and other committee members’ neck because of credit, except the affidavit of one Chijioke about N28,000 but which plaintiff did not and or refused to tell both the old and new committee why and what, and for who was the credit incurred. Defendants aver further that no receipt was issued to the debtor to educate whoever cares. Plaintiff put to the strictest proof of same.
26. Defendants in answer to paragraph eighteen of the claim states that, the plaintiff was a committee member but was operating as an Island, and that the two letters were written following complaints. Letters already pleaded and would be relied upon. Defendants states that they have no malice in writing the two letters at all and would not conceive any even after this case.
27. The defendants aver in answer to paragraph nineteen that the plaintiff enjoyed companionship and popularity now than before. He has not lost confidence he enjoyed as a community leader or as chairman of any tribal association. His community members embrace him without discrimination, no looking at him with contempt, defendants state that the plaintiff is still held in high esteem and none of the things complained in paragraph nineteen happened to him or is likely to happen to him and will put the plaintiff to the strictest proof of same.
28. The publication of the two letters dated 31st October, 2005 and 6th December, 2005 to the plaintiff and others do not in any way injure the character and or reputation of the plaintiff. The plaintiff has not and will not by virtue of the letters be scandalized, he has not been put to odium, or contempt and has not suffered any damages at all.
29. i. Wherefore, at the hearing of this suit the defendants shall urge the Court to dismiss the claim as wild Goose chase, and attempt to reap where one do not sow.
ii. Award substantial cost against the plaintiff for unmeritorious allegations and frivolous claim.”

Exhibit “1” is the report showing the completion of the water project and its handover report to Kabong Community. Exhibit “2” is the letter the appellants wrote, signed and addressed to the respondent dated 31st October, 2005. Exhibit “3” dated 6th December, 2005 was written by the appellants and addressed to the General Manager, Plateau State Water Board. PW1 testified that Exhibit “2” and “3” were copied to several people who however did not testify at the trial. Exhibits “2” and “3” were not written nor addressed to Paulinus Onwubuariri (PW2). The witness was only told about the two exhibits. But the witness admitted that Exhibit “2” was a result of series of complaints from the community about the management of the committee regarding the water project. Paul Gyang testified as PW3. The witness admitted that there was an accusation against the respondent involving money. He admitted seeing Exhibit “2”. However the allegation was not true. The witness did not testify as to who showed him Exhibit “2” and when Bala Paul (PW4) testified in examination-in-chief at page 130 lines 2 to page 131 lines 1-5 of the printed record as follows:
“PW4: Christian, affirms to speak the truth in Hausa. My name is Bala Paul. I am a businessman. I live at Kabong. I have lived there over 10 years. I know the plaintiff. I do not know the defendants. I know the plaintiff for about 7 years. He is our vice chairman of the committee on electricity (NEPA) and water. He is a man of good character. I know of a letter written about the plaintiff. It was written by the 1st defendant. The letter was brought to Kabong, I saw it in the midst of people and I read it. I can identify it. I have a copy of the letter (shown Exhibit “2”). This is the letter.
I was able to read because I read small English but cannot speak it. The letter said the plaintiff is a thief. The letter accused the plaintiff of embezzling community’s money given to him. What I read weakened me because I have know the plaintiff but not as alleged. I then because afraid and I distanced myself from him since he is a thief. Thereafter he was not given any community assignment and people distanced themselves from him. I know the plaintiff used his funds to help the community and had not been refunded.
Ansho: Cross-examination:
I came to testify on the plaintiff on what he was alleged. The letter was not addressed to me. I collected a copy from people around. I believed the contents of the letter because the letter said he is a thief. We are still in Kabong with the plaintiff. People have ran away from him. He is no longer in the committee. I was in the committee. I am not aware of the dissolution of the committee. I know that the plaintiff was removed. I am in the NEPA Committee, I am no longer in the water committee. I do not know if plaintiff is still in police committee. I do not go to the same church unto the plaintiff so I do not know if he is an elder in his church. The plaintiff is no longer respected in Kabong.”

There is no evidence who gave the other people Exhibits “2” or “3” to read. Neither is there evidence who brought Exhibit “2” to Kabong Community. The letter was not addressed to PW4. Gbenga Paul (PW5) did not know about the letters concerning the respondent. None of the persons or authorities to whom the two letters were addressed or copied testified.

In Nsirim vs. Nsirim (1990) 21 NSCC (Pt.2) 302 Obaseki, JSC held at page 310 lines 32 to page 311 lines 1-50 as follows:
“I now go to the main issue in this appeal which is the issue of publication of the libel. An action for libel must fail if publication of the defamatory matter is not proved. This proof must be given by admissible evidence as it is the publication that gives a cause of action. The material part of the cause of action in libel is not the writing, but the publication of the libel. See Hebolitch vs. Macllwaine & Ors. (1894) 2 Q.B. 54 at 61 per Lord Esher, M.R, per Davey, L.J., at page 64; Bata vs. Bata (1948) W.N. 366; Thomson vs. Lambert (1938) 2 D.L.R. 545 (S.C. Canada). The act of publishing the libellous matter constitutes the cause of action. Keefe vs. Walsh (1903) 2 I.R. 706.
What then is meant by ‘Publication’? By publication is meant the making known of the defamatory matter to some persons other than the person to whom it is written.
The writing of a libel to the person or party libeled does not constitute publication for the purposes of a civil action. Thus, the publication to the appellant of the libel complained of does not constitute publication to found an action for libel.
Learned Counsel for the appellant submitted on this issue of publication that the appellant pleaded that the libellous document Exhibit “A” was circulated to press men at the Press centre by the respondent and by the defendant to all and sundry. He then contended that it cannot be said that publication to PW1 was not pleaded. He then cited Pullman vs. Hill & Co. (1891) 1 Q.B. 524 at 527. It is observed that the pleading did not mention the name of any person to whom the statement “A” was delivered.
It is the reduction of libellous matter to writing and its delivery to any person other than the person injuriously affected thereby that is publication. The name of the person to whom delivery of the libellous document was made must be pleaded.
The evidence of PW1 that one of the reporters brought Exhibit “A” to him is of no probative value. This is more so having regard to the evidence of the respondent that he did not make any photocopy of the document. The reporter who gave Exhibit “A” to PW1 never testified. The evidence of the appellant in his testimony was “Defendant circulated some document after reading it to the crowd. This was at the Press Conference.”
PW1 in his testimony in chief said:
“Sometime on the 20th April, 1982 one of my reporters brought to me a press release which was signed by the defendant for the purpose of publication in the Nigerian Tide. I see Exhibit “A”. It is the press release that was brought to me…. I made a study of Exhibit “A” meticulously and… I therefore declined to publish it.”
Under cross-examination, part of his testimony reads:
“The Exhibit “A” was shown to me. The defendant came to my office with a counterpart of Exhibit “A” soliciting publication.”
It is observed that Exhibit “A” was produced and tendered in evidence by the plaintiff. The only witness called by the plaintiff Tons Fetepigi was never at the press conference. He was shown Exhibit “A” by his reporter. The reporter was never named and not called to testify. The defendant never gave PW1 a copy when he went to him to solicit publication. The evidence was therefore not a proof of facts pleaded and went to no issue. The facts pleaded were:
“What was said at the Press Conference was in a type-written document copies of which were circulated to those present at the Conference. The plaintiff will at the trial rely on the said document signed by the defendant.”
The plaintiff has not pleaded that he was at the Press Conference. He has also not pleaded that Tons Fetepigi was at the Press Conference. In the circumstances, I agree with Akpata, JCA when he said:
“Contrary to the finding of the learned trial Judge, it cannot be said, on the totality of the evidence, that the publication by the appellant pleaded in paragraph 3 of his amended statement of claim.”
Parties are bound by their pleadings. See George vs. Dominion Flour Mills Ltd. (1963) 1 All NLR 71; National Investment and Properties Co. Ltd. vs. The Thompson Organization Ltd. (1969) 1 All NLR 138 and evidence of facts outside the pleadings must be jettisoned as they go to no issue.
If the pleadings of the appellant had shown that the respondent published the defamatory matter to Tons Fetepigi, PW1, the evidence of PW1 on the issue would have been admissible. If also the pleadings of the appellant had averred that the respondent showed Exhibit “A”, the defamatory matter to PW1, the evidence would have been relevant and admissible. But these facts were not pleaded. Finally and most importantly, it is clear from Exhibit “A” that the Conference was held on the 16th April, 1982 not on the 20th day of April, 1982 as pleaded and testified to. This is fatal to the case of the appellant.”

The evidence of the persons or authorities to whom matter was addressed is therefore material to found an action in libel.

In Capital and Counties Bank Ltd. vs. George Henty & Sons (1881-1882) 7 A.C. 741 most of the publication was to the tenants and customers of the defendant. They were not aware of what had passed between the plaintiff and the defendant. Lord Selborne, L.C. held at page 745 as follows:
“The test, according to the authorities, is, whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense. Sometimes (perhaps generally) that test may be satisfied from the mere words of the document; in this case, I think it is plain that the mere words of the document are not enough for that purpose.”

The Lord Chancellor held again at page 746-747 of the judgment as follows:
“The publication was to those persons, and to those only, to whom, if the defendants meant merely what they said, it would naturally be addressed. No evidence was given from which (as it seems to me) a jury could have been justified in concluding that those to whom this circular was sent were intended to disseminate it amongst others, with whom the defendants had no business relations. On the contrary, there was uncontradicted evidence that the defendants did not send it to all their customers, but only to those whom they thought likely, at some time or other, to offer payment by cheque on the plaintiffs’ bank. It seems that some of those who received the circular did, in fact, shew it to some strangers: but I cannot think that any such communication by them to strangers, unauthorized by the defendants themselves, could properly be evidence in support of the innuendo. If it had been publicly placarded by the defendants on the walls of Chichester or other towns, or had been advertised by them in newspapers, or sent by them through the post to persons with whom they had no business relations, this might have been evidence of a malicious intention, beyond what was expressed by the mere words of the document; but nothing of that kind was done.”

The evidence in the Lower Court did not reveal that the appellants communicated the alleged libelous letters to PW2-PW5. At page 134 paragraph 6.9 of Gatley On Libel and Slander also appears the following statement of the law:
“Proof of publication: 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 complained of 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 seem that the presumption of publication would be impossible to displace.”

In Gatley On Libel and Slander, 9th edition, paragraph 6.4 pages 130-131 appears the following statement of the law:
“Acts amounting to publication: The question is whether the defendant has communicated the defamatory matter to others and this may be done in a variety of ways. Apart from obvious cases like sending a defamatory letter or publishing a book or transmitting a broadcast there may be publication if the defendant draws the attention of others to an existing libel or even leaves it in a place where they are likely to see it, provided someone does so. It has been held that where defamatory matter is placed in a visible manner on the defendant’s property by some third party for whom he is not responsible, he may be treated as publishing the matter if he elects to leave it there. Where, however, the removal of the defamatory matter would involve great trouble and expense the occupier will not be liable for one cannot then draw the inference that he is voluntarily allowing it to remain.”

Paragraphs 4 and 5 of the statement of claim pleaded the names of the persons and authorities to whom the letters dated 31st October, 2005 and 6th December, 2005 were published without any of them being called to testify as to whether the words complained of were defamatory of the respondent or not. The defamatory publication should be established by the witnesses to whom the libellous matter was published or communicated. See Gatley On Libel and Slander (supra) paragraph 2.1 pages 22-24 where the learned authors reasoned as follows:
“The defamatory imputation: The gist of the torts of libel and slander is the publication of matter (usually words) conveying a defamatory imputation. In determining whether words are defamatory there are two stages, first to decide what they mean, and then to decide whether that meaning is defamatory. Where there is trial by jury these stages are in practice dealt with separately for the purposes of the judge’s decision whether the case should be left to the jury but at the end of the day they are compressed into a single question for the jury, whether the words are defamatory of the plaintiff. From a technical point of view “imputation” is to be preferred to “meaning” since extrinsic facts, whether or not they are generally known, may give rise to implications which go beyond the “meaning” of the words in their ordinary sense. The difficulty of producing a comprehensive definition of the meaning of “defamatory” has often been remarked, and the following have been offered at various times, namely that a defamatory imputation is one to the plaintiff’s discredit; or which tends to lower him in the estimation of others, or causes him to be shunned or avoided; or exposes him to hatred, contempt or ridicule. All of these present certain difficulties, which are considered below, and in one respect or another they are each perhaps too narrow to act as an exclusive test. For example, allegations that the plaintiff has been raped, or has an infectious disease or is insane or insolvent have all been held to be capable of being defamatory, but none of these would expose the plaintiff to hatred, contempt or ridicule, nor can they all be discreditable nor tend to lower him in people’s estimation. Indeed, in the case of insolvency it is only possible to bring the case within any of the tests by giving a broad meaning to “shun or avoid” so that it includes others being unwilling to do business with him. Perhaps, therefore, there is need for a further category, of words defamatory as likely to damage the plaintiff in his trade, business or profession. Possibly the closest to a comprehensive definition is that adopted by the American Law Institute in the Second Restatement of Torts: “a statement is defamatory if it tends to harm the reputation of another so as to lower him or her in the estimation of the community or to deter third parties from associating or dealing with him or her.” Although this has never been adopted by an English Court and one must bear in mind that in many respects there are major differences between American and English defamation law, nevertheless it would seem to provide a workable test consistent with the case law. In any event, the definitions which have been stated in the English cases should be regarded as cumulative, so that words which fall within any of them are actionable. They all have the common feature that they look to the likely effect of the words upon the view taken of the plaintiff by others. For this purpose some standard of opinion has to be set and it is that of “right-thinking persons generally.” Words are not defamatory merely because their publication has a damaging effect on the plaintiff’s reputation; there has to be a statement of fact or expression of opinion or imputation conveyed by them which will have this effect. However, to be defamatory an imputation need have no actual effect on a person’s reputation; the law looks only to its tendency, so there is a cause of action even if the words were not believed by the audience. The position might be different where the nature of the charge was such that no reasonable person would believe it, for example, a charge of witchcraft in an advanced society. A true imputation may still be defamatory, although its truth may be a defence to an action brought on it, conversely, untruth alone does not render an imputation defamatory even though it may cause damage to the plaintiff, as where a statement was made that a stud farm had closed because of a virus.
In the following section it is important to bear in mind that the judge decides whether the words are capable of being defamatory and, on the basis that they are so capable, the jury decides whether they are in fact defamatory. Verdicts of juries do not create binding precedent and even on the issue which is for the judge there is a certain margin within which there may be legitimate disagreement. It is not surprising, therefore, that not all the cases are readily reconcilable. It is also important to note that even for the judge the issue is whether the words are capable, in their particular con, of being defamatory of this plaintiff, so that, for example, a statement that a person is ugly may be defamatory of a person to whose occupation appearance is relevant while it may not be of another. The cases in the following sections can therefore be no more than a starting point. They certainly should not be regarded as indicating that particular words are necessarily defamatory or not defamatory as the case may be.”

Accordingly, publication upon which an action in libel is founded has not been proved. Without proof of libel, there can be no basis for awarding damages to the respondent. The appeal is allowed. The respondent’s claims in the Court below stands dismissed. N50,000.00 cost is awarded against the respondent in favour of the appellants.

IBRAHIM SHATA BDLIYA, J.C.A.: A draft of the lead judgment just delivered by my Lord, TUR, JCA was made available to me before now, I have read same, and I entirely agree with the reasoning and decision reached therein. I adopt same as mine, and in consequence allow the appeal. The judgment of the Lower Court is hereby set aside. I abide with the order as to costs.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I was availed the opportunity of reading in draft the judgment of my learned brother, JOSEPH TINE TUR, JCA and I agreed with the reasoning and conclusion reached by my lord in the judgment. I also allowed the appeal and dismissed the claims of the respondent in the Court below.

I equally award N50,000.00 cost to the appellants.

Appearances

Ansho D. N.For Appellant

AND

Ayo AdeniyiFor Respondent