CHIEF (SIR) ALFRED OGHOGHO EGHOBAMIEN SAN, FCIS, FCIA, ARB. v. SOLOMON I. EGHOBAMIEN ESQ. (2017)

CHIEF (SIR) ALFRED OGHOGHO EGHOBAMIEN SAN, FCIS, FCIA, ARB. v. SOLOMON I. EGHOBAMIEN ESQ.

(2017)LCN/9401(CA)

In The Court of Appeal of Nigeria

On Friday, the 27th day of January, 2017

CA/B/16/2013

RATIO

EVIDENCE: CIRCUMSTANCES A JUDGE WILL EXPUNGE A DOCUMENT ALREADY ADMITTED
The general rule is that a judge has no power to expunge a document he has already admitted in evidence save where the document is inadmissible. Where such document is in admissible, the Court has a duty to expunge it at the time of writing his judgment. See the case of SHANU V. AFRI BANK PLC (2003) FMLR (PT. 136) 853; JACKIE PHILLIPS VS. EBA ODAN COMMERCIAL & INDUSTRIAL COMPANY LTD. NSCQR VOL. 502 (2012) 1 at 8. PER MUDASHIRU NASIRU ONIYANGI, J.C.A.

EVIDENCE: DOCUMENTARY EVIDENCE; PLAINTIFF IN PROVING LIBEL MUST PRODEUCE THE LIBELOUS ARTICLE
In cases of libel, as in the case at hand, the importance of pleading cannot be over emphasised. Hence the plaintiff who claimed that an article is libelous of him must reproduce the whole article verbatim or the particular passage he complains of. See the case of GUARDIAN NEWSPAPER LTD. & ANOR. V. REV. PASTOR C.I. AJEH (2011) 4 S.C (PT. 11) 69. PER MUDASHIRU NASIRU ONIYANGI, J.C.A.

EVIDENCE: CIRCUMSTANCES AN ALLEGED LIBELOUS PUBLICATION NEED NOT BE TENDERED IN ITS ORIGINAL FORM (SECONDARY EVIDENCE)

It is trite that the Plaintiff must tender the alleged libelous publication in its original form. To tender a secondary evidence is subject to the recognized exceptions. See OGUNBADEJO V. OWOYEMI SUPRA.
The exceptions are:
(1) Where secondary evidence is admissible and the Plaintiff has laid the proper foundation and taken the necessary step for admission of such secondary evidence.
(2) Where the document in question is shown to be in 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.
(3) Where it has been shown that the libel is contained in a document or in such a form which is physically impossible or highly inconvenient to produce same in Court. PER MUDASHIRU NASIRU ONIYANGI, J.C.A.

EVIDENCE: FACTORS TO CONSIDER BY A COURT IN EVALUATING EVIDENCE

The general principle of evaluation of evidence is that a piece of evidence having been admitted has to be evaluated properly by the judge, failing which an Appeal Court may be entitled to so do. See OGU V. EKWEREMADU (2005) ALL FWLR (PT. 260) 1; AKPAN V. OTONG (1996) SCNJ 213 and ADEYEMO V. AOKPO (1988) 2 NWLR (PT. 79) 703 at 711.
In evaluating evidence, the Court would consider the following factors:-
(1) whether the evidence is admissible;
(2) whether the evidence is relevant;
(3) whether the evidence is credible and
(4) whether the evidence is more probable than that given by the other party.
See the case of MILITARY GOVERNOR OF LAGOS STATE V. ADEYIGA (2012) 5 NWLR (PT. 1293) 291. It is trite that evaluation of evidence by a trial Court is of utmost importance in the adjudication process. There cannot be a finding of fact by a judge when the judge has not evaluated the evidence. See NBN LTD. V. UCH LTD. (2004) ALL FWLR (PT. 710) 543. PER MUDASHIRU NASIRU ONIYANGI, J.C.A.

JUSTICES

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria

MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria

Between

CHIEF (SIR) ALFRED OGHOGHO EGHOBAMIEN SAN, FCIS, FCIA, ARB. Appellant(s)

AND

SOLOMON I. EGHOBAMIEN ESQ. Respondent(s)

MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): In this appeal, the appellant is challenging the decision of the Edo State High Court delivered on the 10th day of December, 2011 by Honourable Justice R.I. Amaize in an action by the Appellant founded upon tort of defamation predicated on an alleged libel by the Respondent.

The fact of the case briefly as may be garnered from the processes filed by parties is that in Suit No. B/110/09 between SAMUEL EGHOBAMIEN & 4 ORS. V. ALFRED EGHOBAMIEN & 3 ORS. Wherein the Appellant and three others, the Respondent in this appeal inclusive were sued by some member of their family (Eghobamien family) challenging the refusal of the Appellant to share the intestate estate of their grand father, Chief Eghobamien Ogbomo Ogbeide-Oyo who died on 14th August, 1959 and buried according to Benin Native Law and Custom.

?When the said Chief Eghobamien Ogbomo Ogbeide-Oyo died, the Appellant?s father, Chief S.I. Eghobamien was the eldest son who was said to have taken over the intestate estate of his father but did not share the intestate estate of their late father till he himself passed on.

The Appellant thereafter took over the intestate estate of his grand father and his biological father. It was alleged that efforts made to the Appellant to submit his grand father?s intestate estate for sharing yielded no fruitful result and hence the Suit No. B/110/09 was instituted at the Benin High Court.

Pleadings in the suit were filed and exchanged. On behalf of the Appellant, a preliminary objection was registered before the learned trial judge (Hon. Justice S. O. Oigboke). Arguments were taken and same was adjourned to 25/11/2010 for ruling. During the pendency of the ruling, it was alleged that the Respondent who was the 4th defendant in the suit was encountered by the learned trial judge in a burial service organized for the late Dr. Ehigiamusoe on 21/10/2010 and where the said trial judge allegedly berated the Respondent as follows:
?Mr. Eghobamien, why should you join members of Eghobamien family in conspiracy against Alfred when you ought to have protected him.?

The Respondent walked away embarrassed by the confrontation. On the 25th November, 2010, the learned trial judge delivered his ruling and upheld the

preliminary objection by the Appellant and dismissed the suit. The Respondent was aggrieved and having regard to his encounter with the judge on 21/10/2010 at the funeral service of late Dr. Ehigiamusoe, he concluded that the ruling was induced by bias hence he wrote a petition dated 5/1/2011 to the Hon. Chief Judge of Edo State for the transfer of the suit from Hon. Justice S.O. Oigbokie?s Court to any other Court. Meanwhile, the plaintiffs in Suit No. B/110/09 appealed against the Ruling dismissing their Suit to the Court of Appeal, Benin Division. See appeal number CA/B/81/2011. While the appeal was pending, the 1st Appellant, Felix Eghobamien filed a counter affidavit (admitted later as Exhibit P1) and to which he attached a copy of the Respondent?s petition to the Chief Judge of Edo State (the said petition was admitted as Exhibit AB2) seeking for an order setting aside the Ruling delivered by Hon. Justice S.A. Oigbokie. The Court of Appeal in its judgment delivered on 23/5/2012 allowed the appeal but struck out the Respondent?s letter dated 5/1/2011 written to the Chief Judge of Edo State on the reason that it did not form part of the

record from the trial Court as it was not in existence or used in the ruling of the trial Court appealed against. Meanwhile the appellant was served with the copy of the said counter affidavit by Felix Eghobamien and the copy of the petition written by the Respondent in this appeal to the Chief Judge of Edo State (Exhibits P1 and AB 2). He was not comfortable with it and hence he filed Suit No. B/411/2011 against the Respondent alleging that he has been libeled. I reproduced herein under the alleged libelous petition to the Chief Judge of Edo State contained in Paragraph 3 of the statement of claim of the Appellant before the trial Court.

PARAGRAPH 3 OF STATEMENT OF CLAIM.
The plaintiff aver that the defendant made a false and libelous publication of him to diverse person all over the world including the Chief Judge of Edo State inter alia:
?Alfred had earlier boasted to members of our family that it is the judge of his choice who would do the case. Pressure was on me to ask for transfer of the suit from Justice Oigboikie who, Alfred said is his god-daughter. But events have now made it quite clear that Alfred is in full control of the

judge who is willing to play ball for many reasons.
Alfred introduced the judge to me in the 1980?s when we were together in the same chambers. She was then working for the NNB Plc where Alfred was a director. She is a willing judge Alfred is manipulating and intimidating for reasons I do not want to go into for now.
On 21st October, 2010 at about 6.00 p.m., I was leaving the house of late Dr. Ehigiamusoe (husband of Justice Ehigiamusoe), after the funeral service of songs when Justice Oigboikie saw me at the entrance waiting for my driver. We exchanged greetings and surprisingly asked me why I should join members of the Alfred family in conspiracy against Alfred when I ought to have protected him. I was so dismayed to hear this from the judge presiding in the case. The embarrassment was so much that I could not say a word in reply and I walked away. The refrain from Alfred before then, had always been that I conspired with the family to take from him what belongs to him and that I sued him. This was the same song the learned trial judge sang to me. Of course, it was obvious she was not speaking from the content of the case file before her

but from some extra-judicial briefing and I was taken aback by her indiscretion.
Weeks after this incident, she gave a ruling in the matter in favour of Alfred lawyers (not from my chambers) who were in Court phoned to tell me that I must appeal against the ruling because the judge was too partisan to hold, among others, that the plaintiffs who are claiming as grand children (as Alfred is) their fathers? shares in our grandfather?s estate (which has not been shared) have no locus to come to Court. Alfred who fraudulently and blatantly converted and transferred to his private company the vast estate of our grandfather is also a grand son.
What is good for the goose is also good for the gander they say. This is not Igiogbe. The judge twisted the law in favour of Alfred. Not that the judge did not know the law as some lawyers thought, but that she was playing Alfred?s script. Plaintiff?s counsel filed application for leave to appear but she refused this constitutional right of the plaintiffs. Before now, Alfred had told members of the family that the judge would refuse the application to appeal and that at any rate he has won

the case.?

Consequent upon the foregoing alleged defamatory publication, the Appellant claimed at the Court below as follows:
PLAINTIFF?S CLAIM ?
(1) A full and unqualified apology to be conspicuously placed on the front page of a national daily newspaper and some broadcast in electronic media in Benin City.
(2) A letter of retraction of his (plaintiffs) petition dated 5th January, 2011 written to the Chief Judge of Edo State and a copy of which shall be filed at the registry of the Court of Appeal, Benin City.
(3) The sum of N100,000,000.00 (One hundred million Naira) only as damages for the said letter dated 5th January, 2011 considered libelous.
(4) A solemn declaration by defendant not to libel plaintiff again.

The matter went into full trial and in the end, the Court in its considered judgment, refused and dismiss the Appellant?s claim. In dismissing the Appellant?s claim, the Court said (see pages 224-226 of the record).
.. without the key entering into a house under lock is not possible. So too in an action for libel, the objective of a claimant stands unrealizable and

cannot be realized unless and until the alleged libelous matter as the cause of action and therefore threshold of the action before the Court. I therefore hold that the argument targeted at and against a threshold of an action, such as those raised by the defence in the instant case cannot rightly be described as those bothering on technicalities.
On other point also made by the learned senior counsel was that defendant had in Paragraphs 12 and 27 of his extant pleadings admitted writing the libelous publication. I have closely examined those paragraphs of defendants extant pleadings and found that even as he admits writing the letter to the Hon. Chief Judge, he at the same time denies that it is libelous. In Court, he maintained that stance that the letter is not libelous. Claimant?s stance that the letter is libelous and defendant?s own to the contrary remain their respective opinions on the letter. Such differing opinions are what the Court as ordinarily by claimant?s action called upon to resolve and which resolution can only be done with the letter in question, as cause of action, placed before the Court by the claimant whose duty

it is to do so.
This leads to the all important question: Is the letter before the Court? In order to proffer an answered to this question, it behooves on the Court now to take a stand on a related question whether Exhibit AB 2 to Exhibit P1 can be expunged? From the analysis I have made in this judgment, the way to answer the question whether that document can be expunged as wrongly admitted inadmissible evidence is clear. It is that it is liable to be expunged. That document is accordingly expunged. Expunging that document means that the first of the three legally recognized exceptions to the tendering of the original copy of the material complained of, has not been met. There is no evidence that the material is with the defendant and also that it is of such a nature that it cannot easily be moved to Court. The foregoing which constituted the second and third exception have equally not been met.
It follows that claimant having failed to produce the original copy of the alleged offensive letter and having also failed to meet the legal requirements on the legally recognized exceptions, the question posed above whether the letter alleged to be

defamatory is before the Court must be answered in the negative. I accordingly proffer a negative answer to the question. There is therefore no cause of action and that being the case, any further consideration of the matter in the light of that conclusion, I am afraid, will amount at best to mere academic exercise. That, to me, is not worth of the Court. This is an apparent good case that could have been better prosecuted. The claim is therefore liable to be dismissed. It is accordingly dismissed.?

Aggrieved by the foregoing outcome of the case hence this appeal contested vide the notice of appeal dated 13th day of December, 2012 and filed same date. (see pages 227-228 of the record of appeal) containing one omnibus ground that the judgment is against the weight of evidence. The Appellant also filed nine additional ground of appeal on the 2nd January, 2013. They are herein under reproduced but without their particulars.
APPELLANT?S ADDITIONAL GROUNDS OF APPEAL (2-10)
GROUND 2 – The learned trial judge erred in law and on the facts when he held in one breath at page 48 of the judgment that Exhibit P1 has no inherent or intrinsic

legal disability only to hold in another breath at page 51 of the judgment that Exhibit P1, a certified true copy of the Court of Appeal proceedings in Suit No. CA/B/81/2011 (which emanated during judicial proceedings) was not admissible in evidence, which judgment has occasioned a serious miscarriage of justice.
GROUND 3 – The learned trial judge erred in law and on the fact when he held that the document labeled as Exhibit AB2 attached to Exhibit P1, before the trial Court was not in the proper custody of the Registrar of the Court of Appeal and therefore could not have validly certified it.
GROUND 4 ? The learned trial judge erred in law and on the tout when he failed and/or refused to consider all the issues raised by the Appellant before him.
GROUND 5 ? The learned trial judge erred in law and on the facts in treating Exhibit P1 in compartments (i.e. document labeled as Exhibit AB2 and P1) when in fact the entire document as tendered by the Appellant was admitted by the learned trial judge as Exhibit P1.
GROUND 6 ? The learned trial judge erred in law and on the facts when he held inter alia:
?It would

have been altogether a different ball game if the document was part of the record of appeal from the High Court but it was not, what is more, as deposed to by the deponent of what (sic) counter affidavit, he received Exhibit AB2 from the defendant a point which clearly underscore the contention of the defence that the document was not one in custody of the Court of Appeal Registrar. I therefore hold that any certification of it, if done by him is contrary to law and the document is therefore invalid as secondary evidence known to law, which finding has occasioned very serious miscarriage of justice.
GROUND 7 ? The learned trial judge erred in law and misdirected himself when he held, referring to Exhibit P1 thus:
?at best it is a masquerade of some sort and that Exhibit AB2 attached to Exhibit P1 emanated from a legally custody. These factors completely vitiate the said document as a certified true copy?.
GROUND 8 ? The learned trial judge erred in law and on the facts when he held that the alleged offensive letter is not before the Court which findings has occasioned a very serious miscarriage of justice.
GROUND 9

? The learned trial judge erred in law and on the facts when he held inter alia:
?at the time Exhibit P1 (Felix Eghobamien?s counter affidavit) was being deposed to on 3rd May, 2011, Exhibit AB2 to it (that is the document now in question) shown to have been certified on 14th June, 2011 had not in that form come into existence. So, it could not be said to be an Exhibit to Exhibit P1 at best it is a masquerade of some sort and that Exhibit AB2 attached to Exhibit P1 emanated from a legally doubtful custody? which finding has occasioned a very serious miscarriage of justice.
GROUND 10 ? The learned trial judge erred in law and on the facts when he failed to evaluate Exhibit P1 with the attachment Exhibit AB2 properly, when he said exhibits were relevant to the suit from the state of the pleadings before the trial Court.
RELIEF SOUGHT:
To set aside the judgment of the lower Court and for the Court to grant the relief sought at the lower Court by virtue of Section 15 of the Court of Appeal Act 2004.

Pursuant to the foregoing grounds of appeal, parties filed and exchanged their respective brief of

argument.
APPELLANT?S BRIEF OF ARGUMENT
The Appellant?s brief of argument authored by C.A. Erhahon (Mrs.) dated 28th day of November, 2013 was filed on 29th day of November, 2013. Therein, the following issues were put forward for the determination of this appeal. They are:
APPELLANT?S ISSUES FOR DETERMINATION
(1) Whether the trial Court was right in expunging Exhibit P1 and its attachment Exhibit AB2 after the documents have been tendered and admitted in evidence by the trial Court.
(2) Whether the trial Court was right when he refused to properly make use of the certified true copy of the document marked as Exhibit AB2 (which is the libelous petition) as an annexure to Exhibit P1 which was filed by the Respondent in the Court of Appeal and in the custody of the Registrar of that Court.
(3) Whether it was available for the learned trial judge to regard Exhibit P1 as masquerade of some sort and from a legally doubtful custody when issue of masquerade (fraud) was not canvassed by the Respondent as required by law.
(4) Having regard to the totality of the evidence before the Court whether Appellant was not

entitled to judgment.
RESPONDENT?S BRIEF OF ARGUMENT
The Respondent?s brief of argument dated 19th December, 2013 was filed on the 1st of December, 2012 by E.F. Osifo Esq. The said brief was deemed as properly filed and served on the 29th day of February 2016. In the said brief, the Respondent distilled the following issues for determination.

RESPONDENT?S ISSUE FOR DETERMINATION
(1) Whether having regard to provision of S.104 of the Evidence Act 2011, the learned trial judge was not right when he held that Exhibit AB2 attached to Exhibit P1 was inadmissible in evidence and expunged same from the records on the ground that its purported certification was invalid and ineffective and consequently held that the alleged libelous letter was not before the Court.
(2) Whether having regard to the provisions of Ss 39, 46, 232, 237 and 238 of the Evidence Act and the fact that Felix Eghobamien was not called as a witness in the trial Court, Exhibit P1 which he filed in Suit No. CA/B/81/2011 ? Felix Eghobamien & Ors. V. Alfred Eghobamien & Ors., in the Court of Appeal was admissible as evidence in proof of its

content in this later suit.
?
Further to the foregoing, the Respondent also filed the Respondent?s notice on 4/1/2013. Pages 15-28 of his brief contains the argument in respect of the notice. The Respondent?s notice is predicated on three grounds. Based on the three grounds, he distilled three issues for determination. They are:
(a) Whether the decision of the learned trial judge dismissing the Appellant?s case is not entitled to be affirmed by this Honourable Court on the ground that Exhibit P1 is inadmissible in law having regard to the provision of Ss. 39, 46, 232,237 and 238 of the Evidence Act 2011 the fact of its certification notwithstanding. (Ground 1).
(b) Whether the decision of the trial Court dismissing the Appellant?s case is not entitled to be affirmed by this Court on the ground that the Respondent?s letter to the Honourable Chief Judge of Edo State dated 5/1/2011 is covered by absolute qualified privilege to bar the Appellant?s action. (Ground 2).
(c) Whether the decision of the trial Court is not further entitled to be affirmed on the Respondent?s copiously pleaded facts and proven

evidence of justification regarding the Appellant?s ignoble character and lack of reputation. (Ground 3)

The Appellant filed a reply brief on the 23/12/2013 and same was deemed as properly filed and served on the 29th day of February, 2016.

I have carefully read all the processes filed in respect of this appeal. I have also compared the respective issues formulated by the respective counsel representing the parties. I have decided to adopt the issues formulated by the Appellant for the determination of this appeal. This is based on my conclusion that the consideration of the Appellant?s issues would provide answer to the questions raised in the Respondent?s issue in the main brief and by extension the Respondent?s issues formulated for his notice.

In resolving the issues, I would take issues 1, 2 and 3 by the Appellant together and consider it along with issues one and two in the Respondent?s notice and thereafter issue 4 by the Appellant and issue 3 in the Respondent?s notice.

Issues 1, 2 and 3 by the Appellant in the main is on the decision of the Court expunging Exhibit P1 and its attachment Exhibit

AB2 after the document have been tendered and admitted as exhibits and whether it was available for the trial judge to regard Exhibit AB2 annexed to Exhibit P1 as a masquerade of some sort.

The narrow question for determination in this circumstance, is whether or not a document already admitted as Exhibit during trial and properly so marked can be expunged when the Court is considering its judgment in this matter?

The summary of the argument of the appellant is that the learned trial judge was wrong to expunge the Exhibit AB2 having admitted same without any objection. To the contrary, the Respondent argued in favour of the decision of the Court expunging the said Exhibit P1 and AB2 from record but differ on the point that Exhibit P1 ought not be expunged based on the reason upon which Exhibit AB2 was expunged. At this stage, I consider it pertinent to throw light on the reason for expunging Exhibit AB2. Arguments were tendered that Exhibit AB2 was not properly certified because the Registrar of the Court of Appeal who certified it has no original of the said Exhibit i.e. petition written to the Chief Judge of Edo State in his custody. It would be

recalled that Exhibit P1 is the counter affidavit filed by Felix Eghobamien at the Court of Appeal. It is the order expunging the said Exhibit that inform the issues 1, 2, 3 by the Appellant which are now under consideration. They are in the main;
“(1) Challenging the competence of the trial Court to expunge Exhibit AB2 after the document has been tendered and admitted in evidence by the trial Court.
(2) That the trial Court refused to make use of the certified true copy of Exhibit AB2 attached to Exhibit P1.
(3) Whether the trial Court can regard Exhibit AB2 ?as a masquerade of some sort.?

As I said before the pertinent question in the circumstance of issues 1, 2 and 3 is whether or not the trial Court can expunge Exhibits P1 and AB2 after admitting them as Exhibits.

The general rule is that a judge has no power to expunge a document he has already admitted in evidence save where the document is inadmissible. Where such document is in admissible, the Court has a duty to expunge it at the time of writing his judgment. See the case ofSHANU V. AFRI BANK PLC (2003) FMLR (PT. 136) 853; JACKIE PHILLIPS VS. EBA ODAN COMMERCIAL

& INDUSTRIAL COMPANY LTD. NSCQR VOL. 502 (2012) 1 at 8.

In order to establish his case the Appellant testified and called one witness in person of the Chief Judge of Edo State. Equally, the Respondent gave evidence and called five witnesses. The Appellant tendered several Exhibits and germain to these issues are Exhibit P1 and one of the attached documents marked Exhibit AB2. Exhibit P1 is the counter affidavit deposed to by Felix Eghobamien and the attached Exhibit AB2 is the copy of the petition by the Respondent to the Chief Judge of Edo State calling for the transfer of the suit by the Appellant pending before Hon. Justice S.O. Oigbokie to another judge based on an alleged complaint of bias. The aforementioned Exhibit were filed by Felix Eghobamien who is also a party to the proceeding before the said trial judge and the appeal by the Respondents challenging the decision by the trial judge, Hon. Justice S.O. Oigbokie dismissing their suit against the Appellant. Consequent upon the service of the said counter affidavit, Exhibit P1 and Exhibit AB2 on the Appellant and upon his conclusion that Exhibit AB2 is libelous of him, he instituted the suit

against the Respondents claiming the reliefs herein before reproduced. Aggrieved by the outcome of the suit hence this appeal. During the trial, Exhibits P1 and AB2 were tendered. The Court during trial admitted the two documents but in the judgment, expunged Exhibit AB2 on the ground that it was not properly certified in compliance with the provision of S.104 of the Evidence Act 2011. See pages 225-226 where the court said ?
?In order to proffer an answer to this question, it behooves on the Court now to take a stand on a related question whether Exhibit AB2 to Exhibit P1 can be expunged? From the analysis, I have made in this judgment, the way to answer this question whether that document can be expunged as wrongly admitted in admissible evidence is clear. It is that it is liable to be expunged. That document is accordingly expunged. Expunging that document means that the first of the three legally recognized exception to the tendering of the original copy of the material complained of has not been met.?

The foregoing conclusion of the Court came to be after an elaborate evaluation of the evidence, consideration of the provision

of Section 104 of the Evidence Act 2011, submission of respective counsel and precedent from the Court of Appeal and Supreme Court. See pages 211 ? 225 of the record of appeal.

In cases of libel, as in the case at hand, the importance of pleading cannot be over emphasised. Hence the plaintiff who claimed that an article is libelous of him must reproduce the whole article verbatim or the particular passage he complains of. See the case of GUARDIAN NEWSPAPER LTD. & ANOR. V. REV. PASTOR C.I. AJEH (2011) 4 S.C (PT. 11) 69.

In a situation like the fact of this appeal where evidence abound, that the original petition by the Respondent which copy was tendered and admitted as Exhibit AB2, is in the hand of a 3rd party who is not a party to the proceeding. It is incumbent on the complainant plaintiff to issue the appropriate summons on such 3rd party to produce the original of the alleged libelous publication for the purpose of tendering it at the trial. See the case of OGUNBADEJO V. OWOYEMI (1993) 1 SCNJ 148. At the trial, the Chief Judge of Edo State was summoned and testified for the Appellant but there was nothing to show that he was asked to

produce the original alleged publication nor did he tender any but merely gave evidence and identity Exhibit AB2, Certified True Copy. It is trite that the Plaintiff must tender the alleged libelous publication in its original form. To tender a secondary evidence is subject to the recognized exceptions. See OGUNBADEJO V. OWOYEMI SUPRA.
The exceptions are:
(1) Where secondary evidence is admissible and the Plaintiff has laid the proper foundation and taken the necessary step for admission of such secondary evidence.
(2) Where the document in question is shown to be in 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.
(3) Where it has been shown that the libel is contained in a document or in such a form which is physically impossible or highly inconvenient to produce same in Court.

Going by the evaluation of the submission of counsel, the evidence before the Court and the pleadings there is nothing to justify the tendering of a certified true copy of Exhibit AB2 in this case. There is that evidence on record that what

the Appellant attached to his pleadings and tendered in evidence is a certified true copy by the Registrar of the Court of Appeal, Benin Division. There is nothing to show as concluded by the trial Court and to which I agree that the said Registrar of the Court of Appeal was ever served with an original copy of the petition to the Chief Judge of Edo State.

Therefore, it cannot be said that he has an original copy in his custody to legitimately warrant him to certify the copy. The requirement of Section 104 for a public officer to properly certify a public document in his custody has not been met. That is to say that, it has not been established that the said Registrar has in his custody the original of the alleged libelous publication when he certified the copy which is now in contention. See the case of OGUNBADEJO V. OWOYEMI (supra). I can therefore not but agree with the finding of the Court that the Appellant has failed to place before the trial Court the original or a properly certified true copy of the alleged libelous publication. What borders my mind is the question why the Appellant did not make attempt to ask the Edo State Chief Judge whom he

invited as a witness to tender the petition addressed to him and which is the subject matter of the suit by the Appellant before the trial Court.

The learned trial judge in my humble view was right in coming to the conclusion that Exhibit AB2 was inadmissible in its form when it was admitted and subsequently expunged it in its judgment based on the reason that the registrar of the Court of Appeal who certified it has no original of the said document in his custody as prescribed under S. 104 of the Evidence Act, 2011 at the time he certified it. Therefore, the learned trial judge would not only be right to expunge it but has the freedom in the world to describe it ?as a masquerade of some sort?. It is my understanding that a judge is immune while acting as a Judicial Officer to make choice of his own words while conducting a trial and making a decision in any matter before him. I therefore dissociate myself from the contention of the learned counsel to the Appellant. Allowing such may set a dangerous precedent of cowing a judge in discharging his judicial function as an independent arbiter.
?
Having gone this far, I have no hesitation in

my mind than to resolve Issues 1, 2 & 3 against the Appellant and accordingly they are resolved against the Appellant.

Next is issue number 4 which is:
ISSUE 4
Having regard to the totality of the evidence before the Court, whether Appellant was not entitle to judgment.

In the circumstance of the fact of this appeal, where the Respondent after his encounter with the learned trial judge on the 21/10/2010 at a funeral ceremony of late DR. Ehigiamusoe and the Ruling by the learned trial judge on the 25/11/2010 dismissing the suit by the Respondent and which gave birth to Exhibit AB2, (the petition to the Edo State Chief Judge) the question that readily agitates the mind is whether or not Exhibit AB2 is libelous of the Appellant. I am not unmindful of the fact that after coming into the conclusion that the alleged libelous publication is not before the Court consequent on the order expunging Exhibit AB2, there is no need to proceed with the consideration of this issue. I, however feel agitated to chip in a word or two on this issue which tend to suggest that the learned trial judge did not properly evaluate the evidence placed before

the Court. The general principle of evaluation of evidence is that a piece of evidence having been admitted has to be evaluated properly by the judge, failing which an Appeal Court may be entitled to so do. See OGU V. EKWEREMADU (2005) ALL FWLR (PT. 260) 1; AKPAN V. OTONG (1996) SCNJ 213 and ADEYEMO V. AOKPO (1988) 2 NWLR (PT. 79) 703 at 711.
In evaluating evidence, the Court would consider the following factors:-
(1) whether the evidence is admissible;
(2) whether the evidence is relevant;
(3) whether the evidence is credible and
(4) whether the evidence is more probable than that given by the other party.
See the case of MILITARY GOVERNOR OF LAGOS STATE V. ADEYIGA (2012) 5 NWLR (PT. 1293) 291. It is trite that evaluation of evidence by a trial Court is of utmost importance in the adjudication process. There cannot be a finding of fact by a judge when the judge has not evaluated the evidence. See NBN LTD. V. UCH LTD. (2004) ALL FWLR (PT. 710) 543.

Generally, a claim in libel lies in the publication of false and disparaging matter against a person to a third party. See the case of SKETCH PUBLISHING CO. LTD. V.

AJAGBEMOKEFERI (1989) 2 SC. (PT. 11) 73; DR. E. J. ESENOWO V. DR. I. UKPONG & ANOR. (1999) 4 SC. 56 at 59. From the fact of this appeal, it can be said that the essential part of the cause of action in libel is publication of the libelous matter complained of and not merely in the writing of the libelous matter. Therefore an action for libel cannot be sustained without publication. See DAIRO V. UBN. PLC & ANOR. (2007) 7 SC (PT. 11) 128. The onus of proof is on the plaintiff to show that the published words complained of are defamatory or that they convey defamatory imputation. See ILOABACHIE V. ILOABACHIE (2005) 5 SC (PT. 11) 149.
In this appeal, apart from the failure of the Appellant to put before the trial Court, the original or properly certified copy of the alleged publication, there is no evidence before the Court by the Appellant to show any effect the alleged publication has on a third party. See PUNCH NIG. LTD. & ANOR. V. EYITENE (2002) FWLR (PT.125) 678 at 695 -696. Such publication should be capable of creating an imputation on the reputation of the complainant. Such imputation must be capable of bringing the complainant to

ridicule and lower his reputation. The alleged publication is said to be made to the Chief Judge of Edo State in his official capacity.

It is not in dispute between parties that there was that suit between the Respondent and the Appellant, (Suit number B/110/09). Neither has it been denied either by the Appellant nor Hon. Justice S.O. Oigbokie that the alleged confrontation of 21/10/2010 (Respondent and Hon. Justice Oigbokie) did not take place. Also the fact that the Ruling of the Court was delivered on the 25/11/2010 after the said alleged confrontation between the Hon. Judge and the Respondent wherein the pending suit was dismissed and which led to the writing of Exhibit AB2. All these put together are sufficient and reasonable justification to weed off the suit by the Appellant. The subsequent transfer of the suit to another Judge by the Chief Judge of Edo State PW1 is an eloquent justification also to buttress the submission of the Respondent in his argument on defence of justification amplified in his notice. See AMORC V. AWONIYI (1991) 3 NWLR (PT.178) 245; ILOABACHIE V. ILOABACHI (2005) 5 SC. (PT.11) 149.
?
Having said this and considering the

evaluation of the evidence carried out by the Court contained in pages 213 -226 of the record of appeal, I conclude that the learned trial judge properly evaluated the evidence placed before it hence this Court would not disturb the finding and conclusion reached by the Court. Accordingly, I resolve this issue against the Appellant.

The four issues having being resolved in favour of the Respondent and against the Appellant, this appeal therefore is doomed in failure and devoid of any merit.

Further to this, and upon my careful consideration of the argument of the learned counsel for the Respondent on issues two and three in the notice visa-vis, the submission of the learned counsel to the appellant, I adopt my finding and conclusion in issues 1, 2 and 3 by the Appellant in the main appeal and I apply it to this. Considering the evidence of both parties, and the failure of the Appellant to call Hon. Justice Oigbokie to deny or affirm the allegation of the Respondent contained in Exhibit AB2 (the petition to the Hon. Chief Judge of Edo State) and couple with the fact that at the time of the alleged altercation, the suit by the Eghobamien against

the Appellant was pending before the Hon. Judge and the Respondent is a party to the said proceeding. This circumstance renders the Respondent to be entitled to a defence of justification to the libel suit by the Appellant in the Court below. It can therefore be said that this defence of justification completely exonerate the Respondent of liability. See the case of ILOABACHIE VS. ILOABACHIE (2005) 13 NWLR (943) 695 at 736-737; THE REGISTERED TRUSTEES OF THE ROSICRUCIAN ORDER ARMORC (NIGERIA) V. AWONIYI & 3 ORS. SUPRA; JOSEPH MANGTUP DIN V. AFRICAN NEWSPAPER OF NIGERIA LTD. (1990) 5 SC (PT. 11) 111.

From the fact of the case, it is also clear that Exhibit P1 was originally filed at the Court of Appeal, Benin Division in support of the deponent?s appeal at the Court against the Appellant challenging the decision of the trial Court dismissing their suit against the Appellant in respect of the intestate estate of their grand father, late Chief Eghobamien Ogbomo Ogbeide-Oyo. I am not unmindful of the fact that at the tail end of the trial Court’s consideration it distinguished the admissibility of Exhibit P1 from Exhibit AB2. Exhibit P1, as I said

before was filed at the Court of Appeal. Its original is in the custody of the accordance with S. 104 of the Evidence Act 2011 but same cannot be said of Exhibit AB2.

The trial Court also in view of the foregoing would have entered judgment on these grounds in favour of the Respondent and also dismiss the libel suit of the Appellant. I therefore invoke the power of the Court under Order 19 R.11 of the Court of Appeal Rules 2011 and I dismissed the suit of Appellant at the Court below.

In all, the appeal is unmeritorious and hereby dismissed in its entirety. The judgment of the Edo State High Court delivered on the 10th day of December, 2012 is affirmed.

In consideration of the generic relationship of the parties in this appeal as revealed in pleadings and evidence, there should be no order for cost.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother, M.N. ONIYANGI, JCA. I agree with the reasoning and conclusion to the effect that the appeal is unmeritorious and should be dismissed. I also dismiss the appeal. I abide by the consequential orders made in the

lead judgment including order as to costs.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the draft of the leading judgment just delivered by my learned brother, Mudashiru Nasiru Oniyangi, JCA.

I agree with his Lordship that this appeal lacks merit and I accordingly dismiss it.

?I abide by all the consequential orders in the leading judgment including the order as to costs.

Appearances

MR. G.E. EZOMO with him, A.I. YUSUF and M.S. BIKOFor Appellant

AND

MR. E.F. OSIFOFor Respondent