CHIMA OGBONNAYA v. FIRST BANK NIGERIA PLC (2015)

CHIMA OGBONNAYA v. FIRST BANK NIGERIA PLC

(2015)LCN/7877(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 26th day of May, 2015

CA/L/719/2013

RATIO

PRACTICE AND PROCEDURE: BRIEF OF ARGUMENT; THE HALLMARKS OF A GOOD BRIEF OF ARGUMENT

I need not remind Appellant’s counsel that the hallmarks of a good brief of argument is accuracy, brevity and clarity. Briefs are meant to assist the court in the administration and promotion of the course of justice. In SHELL PETROLEUM DEV. CO. OF NIGERIA LTD v FEDERAL BOARD OF INLAND REVENUE [1996] 8 NWLR (PT 466) 256; (1996) LPELR – 3049 (SC) at 16, paras A-B, the Supreme Court, PER UWAIS CJN, held: “It is well settled, as rule of practice, that a well written brief of argument should be brief and concise, containing concise statement of facts of the case which are material to the consideration of the questions presented for determination by the court. It should also contain direct, concise and succinct statement of the argument in the appeal.” See also PORTS & CARGO HANDLING SERVICES CO LTD & ANOR v MIGFO NIGERIA LTD & ANOR [2012] 18 NWLR (PT 1333) 555 at 577 G-H (SC); ABDULLAHI v HASHIDU [1999] 4 NWLR (PT 600) 638; (1999) LPELR 6504 (CA). per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

APPEAL: WHETHER AN APPELLATE COURT IS AT LIBERTY TO IGNORE SOME OR ALL THE ISSUES RAISED IN THE FAULTY BRIEFS OF ARGUMENT AND FORMULATE ITS OWN ISSUES THE WAY IT DEEMS THEM TO BE RELEVANT IN RELATION TO THE GROUNDS OF APPEAL

Notwithstanding the foregoing, it is settled law that no matter how bad, faulty or inelegant a brief may be, an appellate court would not close its eyes to the fact of its existence and consideration of the issues raised, though poorly, in order to effectively do substantial justice to the parties. See OMOJASOLA v PILSON FISKO (NIG) LTD [1990] 5 NWLR (PT 151) 434; TUKUR v GOVT OF TARABA STATE [1997] 6 NWLR (PT 510) 549; UNITY BANK PLC V BOUARI [2008] 7 NWLR (PT 1086] 372. In the light of the above, an appellate court is at liberty to choose any of the issues raised in the brief of the parties. Ipso facto, this court is at liberty to ignore some or all the issues raised in the briefs of argument and formulate its own issues, the way it deems them to be relevant in relation to the grounds of appeal. See CHABASAYA v ANWASI [2010] 10 NWLR (PT 1201) 163; UKO v MBABA [2001] 4 NWLR (PT 704) 460. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

TORT: LIBEL; WHAT IS LIBEL AND THE INGREDIENTS A PLAINTIFF MUST PROVE IN ORDER TO SUCCEED IN AN ACTION FOR LIBEL

Libel is a statement(s) in written form which causes a person to be exposed to hatred, ridicule or contempt i.e to be shunned or avoided and to be lowered in the estimation of right thinking people in the society or disparaged in his profession or trade. It is a defamatory statement expressed in fixed medium especially in writing but also a picture, sign or electronic broadcast. See Blacks Law Dictionary 9th Edition; GUARDIAN NEWSPAPERS LTD & ANOR v AJEH (2011) LPELR – 1343 (SC); ESENOWO v UKONG [1999] 6 NWLR (PT 608) 611; SKETCH PUBLISHING CO. LTD v AJAGBEMOKEFERI [1989] 1 NWLR (PT 100) 678. In order to succeed in an action for libel, the plaintiff must prove certain ingredients. These include:
1. That there is the publication of the material complained of by the defendant;
2. The publication was in writing;
3. That the publication of the material complained refers to no other person but the plaintiff conclusively;
4. That the words complained of was published to some person other than the person whom it referred to;
5. That the publication is defamatory of the Plaintiff;
6. Falsity or lack of the accuracy of the words complained of;
7. That there are no justifiable legal grounds for the publication of the words
See SKYE BANK PLC & ANOR v AKINPELU [2010] 9 NWLR (PT 1198) 179, (2010) LPELR 3073 (SC); AROMOLARAN v AGORO (2014) LPELR-24037 (SC); ILOABACHIE v ILOABACHIE [2005] 13 NWLR (PT 943) 695 SC. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

TORT: LIBEL: THE TEST TO BE APPLIED IN DETERMINING WHETHER OR NOT THE WORDS COMPLAINED OF ARE DEFAMATORY AND THE ONUS OF ESTABLISHING THAT THE DEFAMATORY WORDS HAVE BEEN PUBLISHED TO A THIRD PERSON AND THAT THERE HAS BEEN AN INJURY TO HIS REPUTATION AS A RESULT OF THE PUBLICATION AND THE IMPORTANCE OF THE OPINION OF A THIRD PERSON AS TO THE REPUTATION OF THE PLAINTIFF

The test to be applied in determining whether or not the words complained of are defamatory of in their natural meaning under the circumstance is whether a reasonable man or persons possessing particular facts would understand it in a libelous sense. To this extent, the onus is on the Plaintiff to establish that the defamatory words have been published to a third party and also that there has been an injury to his reputation as a result of the publication. However, the reputation that is being considered here is that which the third party held of the plaintiff and not that which the plaintiff held of himself. In AROMOLARAN v AGORO (supra) at 46-47, paras F-D, the Supreme Court, PER PETER-ODILI JSC, held:
“… the natural conclusion is that a claim in libel cannot be established without the offending words having been communicated to a third party. That is the basic ingredient of defamation as publication to a third party is of the very essence. In this I seek refuge in the case of IWUEKE v IBC [2005] 17 NWLR (PT 955) 447 at 482 wherein this court held thus: “For a plaintiff to succeed in libel there must be proof by evidence of a third party of the effect of alleged publication on him, i.e. the reaction of a third party to the publication. Afterwards libel contains in the publication by the respondent, by means of printing, writing, pictures or the like signs of a matter defamatory to the plaintiff.”
Furthermore, in SKYE BANK PLC & ANOR v AKINPELU (supra) at 38, paras F-A, the Apex Court, PER OGBUAGU JSC, re-echoed the position of the law thus:
“It must be stressed and this also settled that in defamation or libel cases, what is important is the reaction of a third party to the publication complained of. It is not what the plaintiff thinks about himself but what a third party thinks of the plaintiff as regards his reputation. See the case of Chief Nsirim v Nsirim [1990] 3 NWLR (PT 138) 285 at 289; (1990) 5 SCNJ 174 – per Belgore JSC (as he then was but later CJN). In other words, a person’s reputation is not based on the good opinion he has of himself but the estimation in which others hold him.” per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

JUSTICES

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

CHIMA OGBONNAYA Appellant(s)

AND

FIRST BANK NIGERIA PLC Respondent(s)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State; Per Olateru-Olagbegi J. dated the 10th day of June 2013 wherein the court dismissed the Appellant’s suit.

The Appellant was an employee of the Respondent until 2007 after 21 years of service when his employment was terminated by the Respondent. The Appellant’s complain is that the Respondent in its January 2008 newsletter edition falsely and maliciously published articles concerning the Appellant. It is on the basis of the alleged malicious publication that the Appellant instituted the suit that was dismissed by the trial court.

Aggrieved with the decision of the lower Court, the Appellant filed a notice of Appeal dated 16/07/2013 and filed on 17/07/2013 with two grounds of appeal. In compliance with the rules of the court, the Appellant’s brief settled by Godwin A. Ugwu Esq. of Arua, Arua & Partners is undated and filed on 24/09/2013. The Respondent’s brief is dated 08/11/2013 and filed on 11/11/2013 but settled by David Duvwode Esq., Ola-Apalara & Co.

Appellant in his brief formulated three (3) issues for determination as follows:
1. Whether an Appellant who was not incriminated of any crime and yet the Respondent terminated his employment and defamed him in their News letter and the learned Judge could not award damages to the Appellate even after acknowledgment of his innocence;
2. The learned Judge could not acknowledge the narrowness of the Banking industry and negative impact of such publication in Nigeria Banking Industry where the Appellant has spent Twenty One (21) years without blemish until he was wrongly defamed and thrown out of the industry in Nigeria which incapacitated him.
3. Whether in the circumstances the defamatory statement was a universal philosophical statement as stated by the learned Judge under these circumstances.

The Respondent on the other hand formulated three issues for the determination of this appeal thus:
1. Whether the guilt or innocence of the Appellant by the panel set up by the Defendant/Respondent has any material relevant to the present appeal when the parties to the suit admitted during trial that the appellant’s employment was rightfully terminated.
2. Whether the High Court was right in dismissing the claims of the Appellant;
3. Whether the third issue for determination formulated by the Appellant emanated from the grounds of appeal in the Appellant Notice of Appeal dated 15th July, 2013.

Before proceeding to the analysis of argument and resolution of the issue, I must not fail to comment on the brief of argument filed by the parties, especially that of the Appellant. The Appellant seems not to fully appreciate the essence of an appeal with particular emphasis on nature of ground of appeal and issues for determination. It is necessary to produce the ground of appeal as contained in the notice of appeal thus:
“3. GROUNDS OF APPEAL
i. The learned trial judge erred in law for acknowledging that the Appellant was not incriminated of any crime and yet the respondent terminated his service and defamed him in their Newsletter and the learned Judge could not award damages to the Appellant for the defamation done by such publication.
ii. The learned trial judge also erred in law when he could not acknowledge the narrowness of the Banking industry in Nigeria and impact of such publication in Nigerian Banking Industry where the Appellant has spent twenty one (21) years without blemish until he was wrongfully defamed and thrown out of the industry in Nigeria, which incapacitated him.
PARTICULARS
(A)  The panel set up by the Respondent exonerated the Appellant and yet his picture was published in the Newsletter that led to the defamation.
(B) Despite admission by the Respondent that the Appellant was exonerated by the panel went ahead to publish his name without even publishing a rejoinder to the publication.
(C) The Respondent did not deny that the Newsletter was published by them and that it spread to the entire 400 Branches worldwide inclusive of other Banks in Nigeria.
PARTICULARS
The Respondent never denied the said publication nor denied that the Appellant was given awards many times as a good staff before this incident, and yet the learned Judge never awarded anything as compensation.
(1)  The learned Judge erred in law for not awarding any damage to the Appellant despite acknowledging the Appellant’s innocence.
(2)  A court that acknowledged the innocence of the Appellant and cannot acknowledge the need to pay damage for damages done to an innocent staff after his name was wrongfully published in the Respondent Newsletter.”

No doubt, the above reproduced grounds of appeal as well as the issues formulated thereon leave so much to be desired. It is trite that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. In SARAKI v KOTOYE [1992] 11/12 SCNJ 26, the Supreme Court, PER KARIBI-WHYTE JSC held:
“Grounds of appeal are not formulated in nibibus. They must be in firma terra, namely arise from the judgment. However meritorious the ground of appeal, based either on points of critical constitutional importance or general public interest, it must be connected with a controversy between parties. This is the precondition for the vesting of the judicial powers of the Constitution in the Courts…”

The law is also settled beyond controversy that an issue for determination in an appeal must not only arise from and relate to the grounds of appeal filed, it must also be such a proposition of law or of fact or both so cogent, weighty and compelling that a decision on it in favour of the party appealing will not only aid the court in discerning the scope of the Appellant’s complain but also entitle the Appellant to the judgment of the court. See KALU v ODILI & ANOR [1992] 6 SCNJ 76.

The Appellant’s brief also has its own issues. Not only is it replete with arguments that are prolix and irrelevant to this appeal, it is also replete with incorrect/incomplete citations, avoidable typographical errors and copious reproduction of pages of some s. This is evident from the noticeable reproduction of the footnotes number of the portion of the s. This is clearly unbecoming.

It is also instructive to state that a superficial look at the Notice of appeal filed by the Appellant reveals that there is only a ground of appeal with two particulars. However, upon a second look, it would seem that there are two grounds of appeal therein with the second ground labeled “particulars”. This is an avoidable mistake on the part of counsel. More so, a careful perusal of the judgment of the trial court shows that the Appellant as Plaintiff not only withdrew his prayer relating to the termination of his employment by the Respondent, but that the trial court struck out same; therefore the issue was not addressed by the parties at trial and not even part of the issues considered by the lower Court in its judgment. I am therefore at a loss as to why the Appellant has made an inelegant attempt at re-introducing the issue relating to the termination of employment in his brief before this court.

I need not remind Appellant’s counsel that the hallmarks of a good brief of argument is accuracy, brevity and clarity. Briefs are meant to assist the court in the administration and promotion of the course of justice. In SHELL PETROLEUM DEV. CO. OF NIGERIA LTD v FEDERAL BOARD OF INLAND REVENUE [1996] 8 NWLR (PT 466) 256; (1996) LPELR – 3049 (SC) at 16, paras A-B, the Supreme Court, PER UWAIS CJN, held:
“It is well settled, as rule of practice, that a well written brief of argument should be brief and concise, containing concise statement of facts of the case which are material to the consideration of the questions presented for determination by the court. It should also contain direct, concise and succinct statement of the argument in the appeal.”
See also PORTS & CARGO HANDLING SERVICES CO LTD & ANOR v MIGFO NIGERIA LTD & ANOR [2012] 18 NWLR (PT 1333) 555 at 577 G-H (SC); ABDULLAHI v HASHIDU [1999] 4 NWLR (PT 600) 638; (1999) LPELR 6504 (CA).

On the part of the Respondent, learned counsel also appears not to understand the essence of preliminary objection, and where/when it should be raised on appeal. While a preliminary objection may be contained in the respondent’s brief, by a formal separate notice or written objection or both, there is the need for the respondent or his counsel, with the leave of the court, to move the objection before the hearing of the substantive appeal. Before an objection to the competence of ground of appeal will be deemed to have been validly raised, the respondent must in the first instance file a motion on notice stating the grounds of the objection before proceeding to file the Respondent’s brief in which arguments on the objection are adumbrated. On the date of the adoption of the parties’ brief, Respondent Counsel did not inform the court that he had any preliminary objection. In DADA v DOSUNMU [2006] 18 NWLR (PT 1010) 124; (2006) LPELR – 909 (SC) at 16-17 Paras F-B, the Supreme Court, PER ONNOGHEN JSC held:
“To begin with, the procedure for raising a preliminary objection to the grounds of appeal in the Court of Appeal has been laid down by this court in Nsirim v Nsirim [1990] 3 NWLR (PT 138) 285 at 296 and I do not intend to restate them here except to say that for an objection to the competence of ground or grounds of appeal to be validly raised and thereby worthy of consideration by the court, the respondent must first and foremost file a motion on notice in the court stating the grounds on which the objection is based so as to give notice to the Appellant, otherwise, the appellant would be taken by surprise. The Respondent subsequently follows it up with the filing of the respondent’s brief in which arguments on the objection is proffered.”
See also MAGIT v UNIVERSITY OF AGRIC., MARKURDI [2005] 19 NWLR (PT 959) 211; TIZA & ANOR v BEGHA [2005] 15 NWLR (PT (949) 616. A respondent is not at liberty to lump arguments relating to a preliminary objection with the arguments on the issues raised in his brief without first fulfilling the condition precedent, as was done in the instant case where the respondent raised the objection in his respondent’s brief and proffered arguments on it. Thus, the objection as raised by the respondent (under its issues 1 and 3 thereof) and the arguments thereon are evidently incompetent.

Apparently, there is the need for counsel not only to expose themselves to training in respect of conducting matters on appeal but also engage in constructive study of s and material on the modus operandi of Appellate proceedings. Gone are those days when counsel can conveniently rely on oral advocacy alone in respect of proceedings in court. Counsel are enjoined to continually enhance their advocacy skills particularly as it relates to written advocacy. In Nigeria presently, almost all superior courts of record now require parties to frontload their processes before the day on which the matter is fixed for hearing. This written argument contained therein is, therefore, the first opportunity a litigant has to persuade the court. Written argument is very vital in the proper presentation of a party’s case.

Notwithstanding the foregoing, it is settled law that no matter how bad, faulty or inelegant a brief may be, an appellate court would not close its eyes to the fact of its existence and consideration of the issues raised, though poorly, in order to effectively do substantial justice to the parties. See OMOJASOLA v PILSON FISKO (NIG) LTD [1990] 5 NWLR (PT 151) 434; TUKUR v GOVT OF TARABA STATE [1997] 6 NWLR (PT 510) 549; UNITY BANK PLC V BOUARI [2008] 7 NWLR (PT 1086] 372.
In the light of the above, an appellate court is at liberty to choose any of the issues raised in the brief of the parties. Ipso facto, this court is at liberty to ignore some or all the issues raised in the briefs of argument and formulate its own issues, the way it deems them to be relevant in relation to the grounds of appeal. See CHABASAYA v ANWASI [2010] 10 NWLR (PT 1201) 163; UKO v MBABA [2001] 4 NWLR (PT 704) 460.

To this extent, I am of the firm view that the sole issue that has arisen for determination in this appeal is:
“Whether the lower Court rightly dismissed the claims of the Appellant?”

Arguing his appeal, Counsel for the Appellant submitted that the tort of libel is committed through the publication of defamatory words in writing about a person. He cited ILOABACHIE v ILOABACHIE (2005) 5 SC (PT 1) 149 at 179 line 1 to submit that there are five ingredients to be established in an action on libel thus (1) the publication was in writing; (2) The publication was false; (3) The false publication was made to a person apart from the plaintiff and the Defendant; (4) The publication referred to the plaintiff and was defamatory of the said plaintiff and; (5) The publication was made by the Defendant. While citing DIN v AFRICAN NEWSPAPERS OF NIG. LTD [1990] 3 NWLR (PT 139) 392; ONYEJIKE v ANYASOR [1992] 1 NWLR (PT 218) 437; NSIRIM v NSIRIM [1990] 2 NWLR (PT 138) 285; ONU v AGBESE [1985] 1 NWLR (PT 4) 704; UNION BANK NIG LTD v OREDAIN (incomplete citation).

Counsel submitted that the onus is on the Plaintiff, in an action for libel to show that the published words complained of are defamatory or that they convey a defamatory imputation and that where the words complained of are defamatory in their natural and ordinary meaning, the Plaintiff has no legal duty to lead any evidence to show additional defamatory meaning as understood by persons possessing some particular facts. It is also the submission of counsel that the five ingredients have been established in this case. Counsel then submitted that the Appellant has been injured in his credit and reputation and been brought into public scandal, ridicule, odium and contempt and has suffered damages and yet the trial court’s only reason was that the statement was universal and did not award damages to the Appellant. Counsel further contended that the trial court failed to acknowledge the narrowness of the Banking industry in Nigeria and the import of placing an innocent staff’s picture and name in the column as well as the ‘motive for the publication to examine whether it is actuated by purely altruistic principle or tendencies or malicious and injuries motive with innuendo attached to the philosophical motive in the statement’.

Counsel cited JAMES v BAIRD (1996) SC 158 at 163. It is also the submission of counsel that the law imputes general damages in the case of libel. For this position, Counsel cited ODUWOLE & 3 ORS v PROF TAM DAVID WEST [2010] 3-5 SC (PT 111) 183 at 195 lines 35. Citing NEW BREED ORGANIZATION LTD V ERHOMOSELE (2006) 2 SC (PT 1) 136 at 167 line 5 to 43; AKINOLA v ANYIAM (1961) ANLR 588 and ATOYEMI v ODUDU (1990) 10 SCNJ 52, to submit that the Respondent cannot deny defamation and claim privilege because the denial of malice by the Respondent cannot hold water because malice is implied in an action for libel even if the publication was made innocently.

Counsel finally urged this court to interfere by ordering that the statement is not universal and further urged this court to award substantial damages to the Appellant who has been made redundant in his chosen profession by the publication.

On his own part, the Respondent while referring to the learned trial judge’s judgment at pages 85-95 of the records submitted that the decision of the court was based on the evidence placed before it especially the publication by the Defendant/Respondent. Counsel submitted that this is a statement of fact which the Appellant has admitted and that this court can only set aside a decision arrived at by a trial court when the trial court failed to make good use of advantages it had, particularly in a case where credibility is not involved. He cited OLOWU v AMAYO (2011) 49 WRN 40 and ALHAJI SAIBU GBADAMOSI v ABIODUN TOLANI (2011) 20 WRN 79. It is also the submission of the respondent that the Appellant during cross-examination at the trial court admitted that the names of the authors of the complained quotation in the Newsletter Publication which was admitted as Exhibit 6A are Benjamin Israel and David Campbell who are not staffs of the Respondent/Defendant.

Counsel further submitted that the Appellant failed to establish that the quotes were made by the Respondent; that they conveyed a defamatory imputation against him and that the Respondent’s publication was circulated to over 400 branches of the Respondent’s branches and the world via internet. Counsel finally urged this court to dismiss the appeal with substantial cost against the Appellant.

The Appellant’s suit leading to this appeal is apparently founded on the tort of defamation. The Appellant’s grouse is that by Exhibit A6, the Respondent falsely and maliciously published words concerning the Appellant/Claimant with the imputation that the Appellant is “not credible, has no reputation and cannot be trusted to work in the banking industry”. Libel is a statement(s) in written form which causes a person to be exposed to hatred, ridicule or contempt i.e to be shunned or avoided and to be lowered in the estimation of right thinking people in the society or disparaged in his profession or trade. It is a defamatory statement expressed in fixed medium especially in writing but also a picture, sign or electronic broadcast. See Blacks Law Dictionary 9th Edition; GUARDIAN NEWSPAPERS LTD & ANOR v AJEH (2011) LPELR – 1343 (SC); ESENOWO v UKONG [1999] 6 NWLR (PT 608) 611; SKETCH PUBLISHING CO. LTD v AJAGBEMOKEFERI [1989] 1 NWLR (PT 100) 678.

In order to succeed in an action for libel, the plaintiff must prove certain ingredients. These include:
1. That there is the publication of the material complained of by the defendant;
2. The publication was in writing;
3. That the publication of the material complained refers to no other person but the plaintiff conclusively;
4. That the words complained of was published to some person other than the person whom it referred to;
5. That the publication is defamatory of the Plaintiff;
6. Falsity or lack of the accuracy of the words complained of;
7. That there are no justifiable legal grounds for the publication of the words
See SKYE BANK PLC & ANOR v AKINPELU [2010] 9 NWLR (PT 1198) 179, (2010) LPELR 3073 (SC); AROMOLARAN v AGORO (2014) LPELR-24037 (SC); ILOABACHIE v ILOABACHIE [2005] 13 NWLR (PT 943) 695 SC.

In order to effectively resolve this issue, I think it is necessary to reproduce the relevant portion of the evidence of the parties before the trial court, particularly the cross-examination of CW1 contained in Pages 66-67 of the records of appeal. It goes thus:
“CROSS-EXAMINATION OF CW1-CHIMA OGBONNANYA BY MR DUWODE
…
D: look at Exhibit A6, this is an internal magazine of the defendant, is that correct
CW1: yes
D: exhibit A6 has how many columns
CW1: three
D: your name was mentioned under the column of those their appointment was terminated
CW1: yes
D: your name and picture was not in the dismissal list
CW1: no, my appointment was terminated
D: the first column is what
CW1: dismiss
D: second column is what
CW1: terminated
D: third column is what
CW1: quote
D: is your name mentioned in the 3rd column
CW1: my name was not mentioned in the 3rd column
D: your picture is not in that column
CW1: no mention
D: tell me if the word stealing, forgery or theft found in that quotation
CW1: no
D: is there any criminal words that was used in those quotation
CW1: yes
D: mention the word
CW1: beware of endeavoring to become a great man in a hurry means trying to get something which is not due to you, so it is an insulting word
D: you mean in a hurry is a criminal word
CW1: yes
D: who are the authors of those words
CW1: the authors were vividly written on the pages
D: tell the court
CW1: the authors are Benjamin Israel and David Campbell
D: those two names are not staff of first bank
CW1: yes they are not
…”

Now, can it be said that the Appellant discharged the onus placed on him in relation to establishing the ingredient of the tort of libel. I think not! Firstly and perhaps also encompassing the second ingredients, it is an undisputed fact which parties agreed to, that there is a publication complained of by the defendant and same was in writing which requires no further proof by the Plaintiff, same cannot be said of the other ingredients required thereof. As to the third ingredient that the publication of the material complained refers to no other person but the plaintiff conclusively, it is apparent from the evidence elicited during the cross-examination that the Appellant by his own words admitted that neither his name nor his picture was mentioned in the 3rd column wherein the alleged libelous material is contained. Appellant admitted that his name and picture is contained in the 2nd column labeled “terminated” and not in the 3rd column. More so, it is clear from Exhibit A6 that there are pictures and names of other persons under the heading “dismissed” and “terminated” in the 1st and 2nd Column respectively. The Appellant has not shown that the words complained of in the 3rd column conclusively referred to him and no one else.

Fourthly, the Appellant/Plaintiff is required to prove that the words complained of was published to some other person other than the person to whom it referred to, that is, the Plaintiff. In paragraph 3 of his statement of claim contained in Page 3 of the records, the Appellant/Plaintiff averred thus:
“3. the Defendant caused a publication through their news letter edition of January 2008 edition which has a large circulation in Nigerian banking industry and throughout the world via branches and website on the internet through the edition, falsely and maliciously published articles concerning the Claimant…”

Meanwhile, during cross-examination of the Appellant, he admitted that Exhibit A6 which contained the alleged libelous material ‘is an internal magazine of the defendant’. This fact was reiterated by DW1 during cross-examination by the Appellant’s counsel contained in Page 67 of the record. The Defendant witness stated that Exhibit A6 is an internal memo that circulate within the about 600 branches of the Respondent/Defendant within the country and does not circulate to other branches outside the country. This piece of evidence shows clearly that the Appellant has failed to prove that the alleged libelous material was published to some other persons other than the Plaintiff and the Defendant. Clearly, the publication was an internal magazine published and circulated to the staffs of the Respondent. It is at best a publication to the Respondent itself. No publication was made to any third party. Even the Appellant failed to show, identify or call any person or the particular third party or parties to whom the material was published or who had read and held an odious opinion of the Appellant. It is settled law that in proof of publication of libelous material to a third party, such a third party must not only be identifiable, same must also be easily identified. In the instant case, the Appellant merely averred generally that the publication was made to the world at large through the magazine and publication on the internet. He failed to specifically state who the third party is. At this point, I call in aid the hallowed words of TOBI JCA (as he then was) in GIWA v AJAYI [1993] 5 NWLR (PT 294) 423 at 433 D-F, where the Learned Jurist echoed thus:
“One basic ingredient of defamation, whether it is libel or slander, is publication. In order to succeed, the plaintiff must prove the fact of publication. In other words, the plaintiff is under a burden to prove that the defamatory matter was published to a third party. And the law requires that the third party must not only be named but also be clearly identifiable and identified” (underline mine)
I adopt the above words as mine.

An extension of the above seems to be the root of the tort of libel which is predicated on the reputation of the Plaintiff. No doubt, it is the reputation that is being sought to be protected. Let me hasten to say here again that it is the impression a third party forms of the Plaintiff allegedly defamed that is relevant and not that which the Plaintiff forms of himself. Therefore, unless and until it is shown that a third party expresses his impression in relation to the alleged defamatory material, there cannot be any defamation in the legal sense.

As to the fifth ingredient, can it be said that the words complained of in the instant case is defamatory of the plaintiff. The alleged words contained in the 3rd column of Exhibit A6 are as follows:
“QUOTES
Beware of endeavoring to become a great man in a hurry. One such attempt in ten thousand may succeed. These are fearful odds.
… Benjamin Disrael
Discipline is remembering what you want.
… David Campbell”

In relation to the above, the learned trial judge held at page 91 of the record thus:
“… in respect of the quotations of Benjamin Disrael and David Campbell, they are clearly philosophical statements of great minds which are directed at the world at large and not particularly at the Claimant or at any one for that matter.
The words are words of admonitions or advice to the world at large.”

The above findings of the trial court are no doubt based on the evidence elicited during trial by the parties. From the earlier reproduced portion of the cross-examination of the Appellant (as CW1), the Appellant admitted that the words complained of are ‘quotes’ credited to the authors, who are not staffs of the Respondent. Assuming that the words are even defamatory in their ordinary sense and that the Respondent, though not being the author, may upon proof be liable for publishing same as the publisher, the Appellant has failed to show that the words refers to him conclusively and no one else and that someone read and held a negative opinion of him as a result.

From the foregoing, it is apparent that the Appellant has failed to establish his claim and the trial court was right to have dismissed same. This issue is resolved in favour of the Respondent.

Meanwhile, it is instructive to state here that the law is settled beyond any controversy that counsel’s submission in his brief of argument or written address cannot take the place or substitute and constitute evidence upon which a court can act. Here, the Appellant’s counsel in his brief sought to introduce and present evidence which were not considered by the trial court and was not even based on the issues before the trial court. It is not the duty of counsel to give evidence except where he is named and called as a witness during trial. Address of counsel is not tantamount. See ODUWOLE v WEST [2010] 10 NWLR (PT 1203) 598 (SC); NEKA G.B.B MANUFACTURING CO. LTD v A.C.B [2004] 1 SCNJ 193 at 205. It is trite that cases are won not merely by the argument and evidence sought to be inelegantly introduced through briefs of arguments, but on the position of the law on a particular matter as well as the credible evidence led in proof before the court. I need not say more.

For the above reasons, this appeal is dismissed; the judgment of the High Court of Lagos State, Per Olateru Olagbegi J. delivered on 10th of June 2013 is hereby affirmed. N50,000.00 (Fifty Thousand Naira Only) costs is awarded in favour of the Respondent.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: The publication of the alleged libel to a third party having not been proved, I would agree with the lucid judgment prepared by learned brother Abimbola Osarugue Obaseki-Adejumo, J.C.A., which I had the honour of reading in advance that there is no merit in the appeal which I hereby dismiss and abide by the consequential order(s) contained in the said lucid judgment. See Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) 285 at 297-299 per the lead judgment of Obaseki, J.S.C. (as he was).

CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now, the judgment just delivered by my learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO JCA. I agree with the reasoning and conclusions arrived thereat. The Appellant certainly failed to discharge the onus on him to establish the ingredients of the tort of libel. In Guardian Newspapers Ltd & Anor v Rev. Pastor Ajeh (2011) LPELR-1343 (SC) the Supreme Court per Rhodes Vivour JSC set out the essential ingredients of libel as follows:-
1. The words complained of must have been written;
2. The publication must be false;
3. The words must be defamatory or convey a defamatory imputation;
4. The words must refer to the Plaintiff;
5. It must be the defendant who published the words:
6. The onus is on the plaintiff to prove he was the one referred to in the alleged libel.

The learned trial judge was right in his conclusion that the Appellant did not establish most of the ingredients set out above. I also dismiss the appeal as lacking in merit. I abide by the order in the lead judgment as to costs.

Appearances

Godwin Ugwu Esq.For Appellant

AND

David Durwode Esq.For Respondent