DR. ABDULRASHEED A. ADEOYE v. DR. TAIWO OLORUNTOBA OJU
(2018)LCN/11882(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 10th day of July, 2018
CA/IL/103/2017
RATIO
APPEAL: WHETHER GROUND OF APPEAL IS COMPETENT
“Also trite is the fact that in the consideration of whether a ground of appeal is competent or not, the ground of appeal and the particulars must be read together. See, Splinters (Nig.) Ltd vs. Oasis Finance Ltd (2013) 18 NWLR (pt. 1385) 188 at 212.” PER HAMMA AKAWU BARKA, J.C.A.
DEFENCE: THE DEFENCE OF FAIR COMMENT
“The complaint by the appellant is that his defence of fair comment before the lower Court was not properly considered by the lower Court. The state of the law is as stated in Makinde vs. Omaghomi (supra), that for a defendant to avail himself of the defense of fair comment, he must establish that:
a. It was based on facts truly stated.
b. It must be an honest expression of the writers real opinion, and
c. It must not contain insinuations of corrupt or dishourable motives on the person, whose conduct or work is criticized, save in so far as such imputation is warranted from the facts, and
d. The defense must be pleaded.” PER HAMMA AKAWU BARKA, J.C.A.
TORT LAW: TO PROVE DEFAMATION
“In proving whether a person has been defamed or not the plaintiff, on whom the burden of proof resides, must establish certain ingredients to wit;
a. That there was the publication of the material complained of by the defendant.
b. That the publication refers to no other person but the plaintiff conclusively, and
c. That the publication is defamatory of the plaintiff. See Skye Bank Plc vs. Chief Moses Bolanle Akinpelu (2010) 9 NWLR (pt. 1198) 179, Amuzie vs. Asonye (supra) @ 40.” PER HAMMA AKAWU BARKA, J.C.A.
JUSTICES:
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
DR. ABDULRASHEED A. ADEOYE – Appellant(s)
AND
DR. TAIWO OLORUNTOBA OJU – Respondent(s)
HAMMA AKAWU BARKA, J.C.A.(Delivering the Leading Judgment):
The instant appeal is against the judgment of M. O. Adewara J of the Kwara State High Court sitting in Ilorin, the Kwara State capital in suit No. KWS/210/2011 between Dr. Taiwo Oloruntoba- Oju and Dr. S. Y. Omoiya and one or, delivered on the 13th of April, 2017.
Indeed the parties to the action before the lower Court are academics and members of the staff of the University of Ilorin. It is common ground that the respondent a senior lecturer in the department of English was amongst the 49 lecturers sacked by the University of Ilorin sometimes in the year 2001; but later reinstated after litigation by Order of the apex Court in 2009. The respondent before the sacking of the 49 staff members from University of Ilorin, hereafter called Unilorin, was the chairman of the Academic Staff Union of Universities (ASUU) Unilorin Branch, having been sacked in 2001, and between 2001 to 2009, members of the Academics of the University, by virtue of the ASUU constitution elected branch executives with the appellant as General Secretary and one Dr. Saad Omoiya now deceased as chairman.
During the period of 2001 to 2009, the National body of ASUU suspended and excommunicated the branch body (presumably in sympathy with the sacking of the 49 staff) and the Executive body elected during that interim period, was denied participation in the activities of the National body, also refused to submit itself to the directives of the National body.
The Appellant now states that when the 49 dismissed staff were re-instated, all except the respondent resigned their appointments with the University, and the National body wrote recognizing the respondent as chairman of the branch as opposed to the appellant led Executive Council. The appellant proceeded to state that the respondent thereafter by way of circulars including those dated the 23/02/2011 and 05/04/2011 cast aspersions on the person and integrity of the appellant led Executive Council of the University. These attacks were responded to by the respondent by the appellant in his position as General Secretary and Dr. S. Y. Omoiya as chairman, hence the institution of the suit by the respondents alleging that the contents were defamatory.
The respondent on his part while admitting the preliminary facts as narrated by the appellant, states that upon their resumption as the duly recognized chairman as ASUU Unilorin chapter, after their reinstatement, the appellant who had opposed their re-instatement in the first place, started blackmailing him, maligning and disparaging his integrity and reputation. He states that appellant and Dr. S. Y. Omoiya now deceased in a published circular dated the 9th of May, 2011 titled Oloruntoba Oju at it again uttered a statement against the respondent which is defamatory; and after refusing to retract and apologize to the said act, caused a writ of summons accompanied by a statement of claim to issue against the defendant now appellant.
In the statement of claim filed particularly paragraph 12, thereof, the respondent claimed for the following reliefs:
12. (a) A sum of Fifty Million Naira (N50, 000,000.00) only, being general damages for the libel printed and published by the defendants of and concerning the claimant in paragraph 1, and nos. 2 and 5 of paragraph 2 of the Circular dated 9th of May, 2011 and titled OLORUNTOBA OJU AT IT AGAIN.
(b) An Order compelling the defendants to retract the said defamatory words by way of letter of apology addressed to the claimant and to be published in at least two widely circulated national dailies.
(c) An Order of perpetual injunction, restraining the defendants from further publication of such or other words defamatory of the claimant.
The defendant in the amended statement of defense filed with the leave of Court, while admitting paragraphs 1, 2 and 3 of the statement of claim, denied paragraphs 4 – 12 praying the Court to dismiss the suit in its entirety as being incompetent, frivolous, baseless and lacking in merit.
At the close of evidence, written addresses were ordered filed and adopted. The lower Court on the 13th day of April, 2017 rendered the vexed judgment to the effect that;
Taking all these into consideration therefore, there is no gainsaying that the Claimant is entitled to a substantial but a reasonable damage on the footing of the libel published by the defendant of and concerning his person.
In consequence, I hereby award general damages of N5 Million (Five Million) Naira Only against the Defendant.
I also make an order of perpetual injunction restraining the defendant from further publishing the said libel or any other libelous statement of and concerning the claimant.
I refuse to grant prayer (b) for an order compelling the Defendant to retract the defamatory words by writing letter of apology to the claimant and to publish same in at least two national dailies.
There is no need for retraction/apology, having compensated the claimant by awarding damages in his favor.
I enter Judgment for the claimant.
Dissatisfied with the judgment of the lower Court, appellant filed two Notices of Appeal dated the 2/5/2017 and 30/06/2017 respectively. The records of Appeal filed on the 7th September, 2017; was deemed as having been properly filed on the same date. The additional record of appeal was also filed on the 29/09/17.
From the extant Notice of Appeal filed on the 30/06/2017 predicated on 9 grounds of appeal, appellant proposed four issues for the resolution of this appeal as follows:
1. Whether the trial Court’s reliance on Dictionary Meaning of the word circular and the mentioning ex facie of addressee on circular dated 9/5/2011 in arriving at a finding of prove of publication of circular dated 9/05/2011 to person(s) other than the respondent is speculative thereby occasioning a miscarriage of justice.
2. Whether by the totality of the facts and evidence adduced by parties herein the finding of the trial (lower) Court as to admission by the appellant of publication of circular dated 9/05/2011.
3. Whether the consideration and/or determination of words used in circular dated 9/5/2011 in isolation or out of the context of the facts within which the words were used led the Honorable trial judge in arriving at a finding of fact that is perverse.
4. Whether the neglect, failure and/or refusal of the Honorable trial judge to evaluate and/or properly evaluate the totality of the facts and evidence adduced by the appellant to establish a defense of fair comment has occasioned a miscarriage of justice rendering the trial Court’s finding of fact to be perverse.
This can be seen at pages 5 – 6 of the appellants brief filed on the 1st of November, 2017 and duly adopted on the 3rd of May, 2018. The respondent on his part and in the brief filed on the 18/2/18 but deemed filed on the 14/3/18 and adopted on the same 3rd May, 2018, raised the issue of the incompetence of appellants ground three and issue one, and further to that distilled 2 issues for the Courts consideration in resolving the appeal as follows:
1. Considering the circumstances and evidence adduced in this case, whether the trial Court was not right in holding that the respondent has proved the tort of libel against the appellant.
2. Considering the evidence adduced herein, whether the trial Court was not right in holding that the defense of fair comment could not avail the appellant in the circumstances of this case.
The appellants reply brief filed on the 29th of March, 2018; responded to issues raised in the respondents brief.
On the alleged incompetence of the appellants ground three and issue one, argued from pages 3 – 4 of the respondents brief, it was submitted that the appellants ground 3 of the Notice Appeal dated the 30th of June 2017 at pages 524 – 531 of the records is incompetent on the ground that it is not a complaint against any part of the trial Courts decision, and by extension issue one distilled there from.
Making reference to the ground of appeal in contention, counsel argued that the ground suggests or shows that the trial Court substituted the title of the circular Exhibit K, for another thing, whereas a careful perusal of the entire judgment shows that at nowhere in the judgment did the trial Court make any pronouncement substituting the title of Exhibit K. He goes on to submit on the authority of Achonu vs. Okuwobi (2017) All FWLR (pt. 905) 1294 at 1336 that a ground of appeal which does not attack or complain on the decision of the trial Court being appealed on, is incompetent and liable to be struck out. The further cases of First Bank of Nigeria Plc. vs. ACB Ltd (2006) 1 NWLR (pt. 962) 438 at 463 and Okponipere vs. State (2013) All FWLR (pt. 691) 1590 were cited on the point.
He argued consequent upon that, that issue 1 having been distilled from ground 3, is likewise incompetent and cannot be saved by the fact that the other grounds are competent by virtue of its having been contaminated by an incompetent ground.
The response to this issue can be located from pages 2 to 5 of the appellants reply brief. Therein, learned counsel conceded to the legal position to the effect that a ground of appeal to be competent must relate to an issue decided by the lower Court as expressed in Balonwu vs. Governor Anambra State (2009) 18 NWLR (pt. 1172) 13 at 44, but contends that the principle is inapplicable to the instant case.
He alluded to page 501 of the record of appeal where the trial Court in its judgment held that:
In the instant case, there is no dispute whatsoever that the words complained of by the claimant were contained in a circular titled Oloruntoba Oju at it again 9th May 2011.
He posits that in the said finding, the lower Court described Exhibit K as a circular contrary to update. He contends that a ground of appeal should not be read in isolation, and the complaint where read together with its particulars, will indicate the clear purport of the ground of appeal, and argued that the cases cited by the respondents counsel were not apposite.
I think the contention by the respondent is well understood. It is to the effect that ground 3 of the grounds of appeal is incompetent, in that same did not emanate from the decision of the lower Court. It is common ground that a ground of appeal must emanate from the decision of lower Court, and the cases of Achonu vs. Okuwobi (supra), Balonwu vs. Governor Anambra State (supra), Jim Jaja vs. C.O.P Rivers State (2013) 6 NWLR (pt. 1262) 609 are all supportive of the legal principle.
Also trite is the fact that in the consideration of whether a ground of appeal is competent or not, the ground of appeal and the particulars must be read together. See, Splinters (Nig.) Ltd vs. Oasis Finance Ltd (2013) 18 NWLR (pt. 1385) 188 at 212.
At page 501, the lower Court did assert that:
In the instant case, there is no dispute whatsoever that the words complained of by the claimant were contained in a circular titled Oloruntoba Oju at it again dated 9th May 2011.
The offending circular was admitted in evidence as exhibit K in this case.
Ground 3 of the grounds of Appeal with its particulars on the other hand reads as follows:
GROUND 3
The learned trial judge misdirected himself and thereby occasioned a miscarriage of justice when he substituted Circular for Update as the title of Exhibit K dated 9/05/11 in arriving at the Courts finding of fact.
PARTICULARS
i. Exhibit K dated 9/05/11 is clearly described on the face of it (ex-facie) as an UPDATE and not a CIRCULAR as ascribed to it by the honorable trial judge.
ii. Exhibit K dated 9/05/11 being documentary evidence speaks for itself and cannot be defined nor described in any other way other than what it is.
iii. The non description of Exhibit K dated 9/05/11 as it is, led the trial Court to arriving at a finding of fact that is perverse.
iv. The learned trial judge held publication of Exhibit K to persons other than the respondent to be proved against the appellant on the basis of the definition he ascribed to the word CIRCULAR.
v. Parties cannot by consent make the Court adduce a title, meaning or construction to a document which is in contrast to its actual description, form or content.
vi. The judgment of the trial Court was primarily hinged on this misdirection occasioned by the learned trial judge.
A clear but literal understanding of the ground of appeal and its particulars, and the finding of the lower Court as shown does not support the argument and complaint of the respondent with regards to ground 3. It is obvious to me having taken into consideration the totality of the ground and its particulars as well as the holding of the lower Court, the respondents ground of complaint as regards ground three of the grounds of appeal were not substantiated and accordingly discountenanced. This is not to say that I do not appreciate the industry of the two learned counsel with regards to their submissions on the issue just resolved and the further issues in contention.
I now proceed to the main appeal.
A sober consideration of the issues proposed in the determination of this appeal, would reveal that the appellants issues 1, 2 and 3 can be conveniently subsumed in issue 1 crafted by the respondent, while appellants issue four can equally be treated in the respondents issue two. It is for the same reason therefore, that I elect to be guided by the respondents two issues for its brevity.
Issue One
Considering the circumstances and evidence adduced in this case, whether the trial Court was not right in holding that the respondent has proved the tort of libel against the appellant.
It is the submission of the learned counsel for the appellant that the respondent woefully failed to lead evidence in support of the allegation of facts contained in paragraphs 4, 7 and 10 of the statement of claim, as well as paragraphs 12, 13 and 13(n) of the consequential reply to the statement of defense. Learned counsel in relating the history of the case which generated the instant action, submitted in line with the decision of Amuzie vs. Asonye (2011) 6 NWLR (pt. 1242) 19 at 20 that for a party to succeed in a claim for defamation, he must prove the publication of the alleged defamatory statement to a third party, that the statement referred to him, and that the statement was defamatory. He alluded to paragraph 4, 7 and 10 of the statement of claim which is as follows:
Paragraph 4
That I know as a fact that the 1st and 2nd defendants falsely and maliciously published of and concerning me in a circular dated 9th of May 2011, titled OLORUNTOBA-OJU AT IT AGAIN, the following words:
Paragraph 7
The claimant states that the defendants caused to be published the offending words knowing them to be libelous.
Paragraph 10
The claimant avers that the words published have caused incalculable damage to his name and reputation and have exposed his person and family to ridicule hatred, public odium and contempt.
Contending that the respondent did not state the names of those to whom, when, how and in what manner exhibit K was published. He further alluded to paragraphs 12, 13 and 13(n) which provided that:
Paragraph 12
The claimant states that the posture of the defendants I paragraph 8 of the Statement of Defense is an admission of the malicious intent of the defendant to publish the libelous piece against the claimant.
Paragraph 13
The claimant further avers in specific reference to paragraphs 3, 4, 8 and 9 of the Statement of Defense that the publication of the defendants in question was calculatedly made out of spite, malice and malevolence without the slightest regard for truthfulness, honesty or otherwise of the disparaging allegations which indeed caused incurable damage to the claimants reputation.
Paragraph 13(n)
The claimant avers that the defendants have deliberately and maliciously published the libelous publication against him in furtherance of this displeasure over his reinstatement and also to blackmail him for the leadership role he played in the reinstatement of the UNILORIN 49 and for his consistence constructive stance on issues concerning the University generally and academic welfare of staff.
And also state that respondent also failed as in the statement of claim to state the person(s) to whom the alleged defamatory statement (Exhibit K) was published. He contends that a statement of claim must show publication on a stated occasion to a named person. The cases of Vanguard Media Ltd vs. Olafisoye (2011) 14 NWLR (pt. 1267) 207 at 233, and Isikwenu vs. Iroh (2013) 11 NWLR (pt. 1365) 250 at 280 were cited in support of the proposition.
He posits that the appellant has not by direct, clear and unequivocal averment admit to the publication of Exhibit K to 3rd persons in his amended statement of defense, and submits that it is the pleadings and the evidence led that determines the publication of a defamatory statement. He cites on this the authority ofDairo vs. UBN Plc. (2007) 16 NWLR (pt. 1059) 99 at 105-166 and Omo-Agege vs. Oghojafor (2011) 3 NWLR (pt. 1234) 341 at 353.
He referred the Court to the evidence led by Pw2 and Pw3, contending that Pw3 never stated that Exhibit K was published to him. Placing reliance on the case of Nitel vs. Tugbiyele (2005) 3 NWLR (pt. 912) 334 at 353, counsel states that a party cannot be held liable for the publication of an alleged defamatory statement to persons who are not intended or reasonably anticipated or expected to have access to the alleged defamatory statement. He further stated that the evidence by the Pw3, is speculative having stated under re-examination that;
A circular issued by a branch is for that branch. But it can get across to another branch because academics are one.
He accused the trial Court of fishing for evidence in order to arrive at a finding of the proof of publication of Exhibit K by relying on the dictionary meaning of the word circular; and that Exhibit K has on the face of it a group of persons to whom it is addressed as basis of its finding. He further submits that an action in libel must fail where publication of the alleged defamatory statement is not proved by admissible evidence. See, Amuzie vs. Asonye (supra) 19 at 43. He further alluded to the judgment of the lower Court at page 504 of the record, stating that the Pw2 and Pw3 failed to name there who published Exhibit K to them, and consequently there was no admissible evidence before the Court to support the allegations of fact contained by paragraphs 4, 7 and 10 of the statement of claim and paragraphs 12, 13 and 13(n) of the respondents consequential reply. He submits that facts pleaded on which there is no evidence led goes to no issue as pronounced in Yusuf vs. Dornier Aviation (Nig.) Ltd (2004) 10 NWLR (pt. 880) 1 at 5 and Haruna vs. Modibbo (2004) 16 NWLR (pt. 900) 487 at 522.
He insists that the trial Court relied on the dictionary meaning of circular and the fact that a group of persons to who Exhibit K was addressed is stated on the face of it without actual proof by the respondent that such Exhibit K was received by the addressee; arguing that publication in libel is the making known of the defamatory statement to some person other than the person of whom it is written.
He argued that the reliance of the trial Court on the meaning of circular given to Exhibit K led the Court in arriving at a perverse decision for which the Court substituted its own evidence for that presented by the parties. He still cites the case of Haruna vs. Modibbo (supra) at 509 in support of the principle. He argued still that the dictionary meaning given to the word circular and the fact that a group of persons to who Exhibit K is addressed cannot substitute for strict positive proof of the publication of Exhibit K, and the reliance of the lower Court on same amounted to speculation. He then cited Olalomi Industries Ltd vs. NIDB Ltd (2009) 16 NWLR (pt. 1167) 266 at 303 304, and Uzor vs. D. F. (Nig) Ltd (2010) 5 NWLR (pt. 1217) 553 at 579 to the effect that the law forbids speculation in the adjudicatory process.
He goes on to argue that the trial Courts finding that Exhibit K was posted on the Notice board is not supported by the totality of the state of pleadings and the evidence adduced, positing that a Court of law must desist from fishing for evidence upon the authority of Adeleye vs. The State (2015) 3 NWLR (pt. 1446) 299 at 346. He maintains that based on the totality of the foregoing the lower Courts finding to the effect on the proof of publication of exhibit K by the respondent is perverse, and thus caused a miscarriage of justice.
He reiterates that in the case of libel, the law requires a claimant not only to plead the names of those to whom the alleged defamatory statement was published, but also to call those whose names have been pleaded as witnesses to prove the publication. The case of Ayeni vs. Adesina (2007) 7 NWLR (pt. 1033) 233 @ 260 and 266 was referred to. He faults the Courts reliance on the dictionary meaning of the word circular and the fact that exhibit K contained on the face of it the addressee as To all Academic Staff to arrive at the finding of publication.
Submitting further learned counsel drew the Courts attention to the pleadings of the parties, and the finding of the lower Court to the effect that appellant did not deny publishing the offending circular. He goes on to submit that the respondents statement of claim violated Order 27 Rule 7 (2) of the rules of the lower Court when it failed to be specific in their claim. Relying on the case of Ukachukwu vs. Uzodinma (2007) 9 NWLR (pt. 1038) 167 @ 186, that specific averment requires specific traverse, argued that the Court misconceived the effect of the appellants averment in paragraph three of his amended statement of claim. He commends the case of Eze vs. Okoloagu (2010) 3 NWLR (pt. 1180) 183 @ 212 to the effect that in determining whether a particular averment has been sufficiently denied, all the paragraphs of the statement of defense or reply must be read together and considered.
He submits that the respondents statement of claim, particularly his averment relating to publication not having been sufficiently pleaded on the facts as to who exhibit K was published to, when, where, and how and in what manner, the appellant was under no obligation to deny the facts that are not specifically pleaded. He described the trial Courts finding on admission as that being speculative, and not borne on direct, positive and clear unequivocal evidence.
On the finding of the lower Court as to whether the respondent has proved the ingredients of the tort of defamation, and whether the words contained in exhibit K were defamatory or not, it was submitted for the appellant that the lower Court misconstrued the meaning of the words puerile and pathological liar, submitting that the words ought to be construed as a whole and not in isolation. He supports the argument with the decision in Ekong vs. Otop (2014) 11 NWLR (pt. 1419) 549 @ 568. He submits that in the construction of the words used, it is the broad and general impression conveyed by the publication that has to be considered.
It is his opinion therefore that the lower Courts consideration of the words silly and habitual liar without taking into context the established facts within which the words were used occasioned a miscarriage of justice. Still relying on the case of Otop vs. Ekong (2006) 9 NWLR (pt. 986) 533 @ 556, where it was held by this Court that:
In proving one of the elements in a case of libel which is that the statement so published is false, even if a statement complained of appears to be derogatory or disparaging or injurious to a person so as to impeach his character or reputation, it may still not amount to defamation unless the person complaining proves that it was a false statement.
He submits therefore that for a statement to be defamatory, it must be false and defamatory of the person complaining. The cases of Ekong vs. Otop (supra) @ 570-575, Sketch vs. Ajagbemokeferi (1989) 1 NWLR (pt. 100) 678 and FBN Plc vs. Aboko (2007) 1 NWLR (pt. 1014) 129 @ 145 – 146, and Amu vs. Guardian Newspapers Ltd (1999) 8 NWLR (pt. 616) 568 @ 580 were cited in support of the principle.
In his response, the learned counsel for the respondent tenaciously holds on to the view that from the circumstances and the evidence adduced, the trial Court was justified in holding that the respondent proved the tort of libel against the appellant. The learned counsel referred to the cases of Vanguard Media Ltd vs. Olafisoye (2012) ALL FWLR (pt. 634) 97 @ 117, and Enterprises Bank Ltd vs Amao (2014) ALL FWLR (pt. 738) 994 @ 1004 on what constitutes the ingredients required for a plaintiff and to prove the ingredients in action for libel, and asserts that the respondent successfully proved on the balance of probability the case of defamation against the appellant.
On whether the defamatory statement referred to the respondent, counsel argued that the name of the respondent appeared severally on exhibit K, and the appellant did not deny that aspect. On statement published in a permanent form, learned counsel referred to the circular exhibit K, which is in permanent form, contending that the fact is undeniable. On publication of the defamatory statement, learned counsel summed up the contention of the appellant on the issue, submitting that the contentions by the appellant are misconceived and misplaced.
He referred to the case of Vanguard Media Ltd vs. Olafisoye (supra) @ 121 on the definition of publication and submits that the respondent by paragraphs 4, 7 and 10 and 12, 13 and 13 N, of the statement of claim and consequential amended reply to the statement of defense pleaded allegations of facts and also led evidence through his testimony and that of his witnesses showing that the alleged defamatory statement was published. He referred also to paragraphs 3, 8(a) 8(b) of the amended statement of defense, opining that the trial Court was justified in coming to the conclusion that the defamatory statement was indeed published. Further relying on Enterprise Bank Ltd vs. Amao(2014) All FWLR (pt. 738) 994 @ 1005, and the case of Nsirim vs. Nsirim (1990) 3 NWLR (pt. 138) 285 @ 297 counsel argued that it is not in all cases that the names of the persons to whom the alleged libelous document is delivered to, can be numerically mentioned.
He emphasized that publication of defamatory statements can be proved in various ways depending on the circumstance of each case and the nature of the document containing the defamatory statement, as determining the nature of the document containing the defamatory statement is fundamental. He referred to the case of Ayeni vs. Adesina (supra) while distinguishing Ugo vs. Okafor (1996) 3 NWLR (pt. 438) 542, and submits that the finding of the lower Court on the meaning of circular in order to determine its nature is unassailable. He referred to other circumstances in the case where reasonable inference can be drawn that exhibit K, was indeed published, and submitted that the circumstances highlighted cooperatively established the publication of the circular or that same was caused to be published. Still submitting, counsel relying on the authority of Amuzie vs. Asonye (supra) @ 44 which held that a claimant is exempted from proffering proof, where defendant admits same in evidence.
He also argued that the allegation of fact concerning publication was specific enough, and cited the case of Economides vs. Thomopoulos and Ukachukwu vs. Uzodinma on the point. On whether the statement was defamatory, it was contended relying on paragraph 4 of the statement of claim, that from the face of exhibit K, the trial Court was right in holding that the statement was defamatory of him, and further relied on the case of Vanguard Media Ltd vs. Olafisoye (supra) on the determination of defamation, and applying the reasonable man test urged Court to hold that the lower Court was right in holding that the respondent was in fact defamed by the appellant.
In the reply brief filed, and with regards to the instant issue, learned counsel for the appellant referred to the argument by the respondent on the issue that it is not in all cases that persons to whom alleged defamatory statement is made must be pleaded, submitted that the decision relied on was rendered per in curiam going by the decision of Nsirim vs. Nsirim (supra). He posits that the decision of Enterprise Bank Ltd vs. Amao (supra), being a decision of the Court of appeal, must of necessity defer to the decision of the apex Court on the principle.
On the issue argued by the respondent in paragraph 5.18 – 5.20 of the respondents brief to the effect that one of the exceptions to the general rule in the proof of publication is that once the document is of a public nature, then reasonable inference can be drawn from the circumstances of the case, counsel argued that documentary evidence speaks for itself, and parties cannot ascribe to or construe the words of a document contrary to what it says, and referred to Section 129 (2) of the Evidence Act, 2011 in that regard, as well as the case of Dantata Jnr vs. Mohammed (2012) 14 NWLR (pt. 1319) 122. On admission of publication by the appellant, counsel is of the view that the respondent must succeed on the strength of his case, and the cases cited by the respondent of no value to his argument.
He commends the case of Ajakaiye vs. Okandeji (supra) being the extant law on admission of publication.
I have earlier on stated the foundational history of the instant case. It is apparent that the respondents led executive, controlled the affairs of the Unilorin chapter of ASUU, apparently leading it to the strike which culminated in the sack of the UNILORIN 49 academicians. From the period of their sack in the year 2001, to when they were re-instated by order of the Apex Court, the appellant and Dr Omaiya now deceased mounted the mantle of leadership of the Union, though unrecognized by the mother Union. Upon the reinstatement of the UNILORIN 49, with the respondents executive, the mother union apparently chose to deal with the respondents executive (they never recognized the appellant led executive anyway). The apparent state of affairs might have been responsible to the state of acrimony between the two executive officers, leading to the present unfortunate legal tussle where respondent alleged that he was defamed by the appellant.
The tort of defamation has been given meaning in the case of The Sketch Publishing Company Ltd vs. Ajagbemokeferi (1989) 1 NWLR (pt. 100) 678, followed in the case of Ayeni vs. Adesina (supra), as connoting that statement which if published of and concerning a person, is calculated to lower him in the estimation of right thinking men, and that includes women, or cause him to be shunned or avoided, or to expose him to hatred, contempt or ridicule or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business other than the person injuriously affected thereby. See also Nwachukwu vs. Nnoremele (1957) 2 ERLR 50, Nitel vs. Tugbiyele (2005) 3 NWLR (pt. 912) 334 @ 352.
In proving whether a person has been defamed or not the plaintiff, on whom the burden of proof resides, must establish certain ingredients to wit;
a. That there was the publication of the material complained of by the defendant.
b. That the publication refers to no other person but the plaintiff conclusively, and
c. That the publication is defamatory of the plaintiff. See Skye Bank Plc vs. Chief Moses Bolanle Akinpelu (2010) 9 NWLR (pt. 1198) 179, Amuzie vs. Asonye (supra) @ 40.
As is borne on the record, the respondent gave evidence and also called two additional witnesses with the leave of Court. Various documents were also tendered by the respondent in an effort to prove the ingredients enumerated, and thereby establish his case.
On whether the publication complained of referred to no other than the respondent, the lower Court at page 504 of the record referred to the contents of exhibit K, the alleged defamatory document, wherein the respondents name was severally mentioned. He also referred to the oral evidence as well as the contents of the appellants paragraph 4 of the amended statement of defence, wherein appellant averred that:
the defendants state that the referred circular called Oloruntoba Oju at it again, dated the 9th of May, 2011 was merely an honest update of the Union’s notice to its members without any iota of falsehood and malice against the plaintiff. And still under cross examination, where appellant stated that I am co-author of exhibit D8 and exhibit K. I clearly refer to the claimant in the document,
and concluded that there was no disputing the fact that the publication, i.e exhibit K referred to no other than the respondent before this Court. The learned counsel for the respondent did not argue the fact that the alleged defamatory document exhibit K, actually referred to the respondent, nor the finding of the lower Court on same appealed on. Having perused the document in issue, it appears clear to me that the respondent was the subject of the alleged defamatory letter with his name copiously appearing in the said document. I therefore agree with the respondent and the lower Court that the alleged defamatory statement referred to no other than the respondent and I so hold.
On whether the statement borne on exhibit K is defamatory, a clear look at the document bears out as follows:-
The attention of the Union has been drawn to the puerile writings of one Dr Taiwo Oloruntoba-Oju aimed at causing rancor, disaffection and acrimony among the rank and file of the University of Ilorin community particularly our esteemed members.
We consider the rantings and tantrum of Olaruntoba-oju as a desperate attempt to gain attention and ascribe to himself a position that he does not have.
It should be noted that in 2001, this same Oloruntoba-Oju promised to make the University ungovernable in his desperate bid to blackmail the University Authority to award him a professorial chair like two of his cohorts. He has started again his failed mission of ten years ago through his self serving and rambling writings are being used to insult our members, the Executives, heads of departments and deans of faculties.
Our focused and progressive members are enjoined to be wary of the antics of this pathological liar whose stock in trade is propaganda as well as formenting trouble for personal benefits.
It has been submitted that from the wordings of exhibit K, just re-produced, the words were intended to expose the respondent to hatred and ridicule, and to lower his estimation in the estimation of right thinking members of the society, and therefore defamatory of the respondent. The lower Court concerning this issue, alluded to the contents of exhibit K, and the case law inAyeni vs. Adesina (supra), NTA vs. Babatope (1996) 4 NWLR (pt. 440) 75 @ 88, and Enterprises Bank Ltd vs. Amao (supra), and also used the test of the reasonable man exposed in the case of Sketch vs. Ajagbemokeferi, (supra) to arrive at the conclusion that the words were indeed defamatory. I do agree with the respondent counsel, in line with the decision of Vanguard Media Ltd vs. Olafisoye (supra), that in determining whether the words convey a defamatory meaning, the Court will construe the words according to the fair and natural meaning which would be given them by reasonable person(s) of ordinary intelligence. In the event, I am of the reasoned view having given the document in contention a clear but dispassionate consideration, that upon a fair and natural understanding of the words employed in exhibit K, the lower Court was right to have arrived at the conclusion that the words therein were defamatory of the respondent. I therefore agree with the lower Court that this ingredient of the tort of libel was well established.
The last but most important element of the tort of libel is the fact of the publication of the alleged defamatory statement in a permanent form. There is no contention to the fact of the exhibit, (exhibit K) being in a permanent form. Having been reduced to a circular as commonly termed by all the parties. The bone of contention appears to be whether the respondent proved the fact that the alleged defamatory statement was published to a third party other than the respondent as demanded by law. The appellant strongly argue that respondent failed to prove that the defamatory statement was published; that he did not state to whom the defamatory statement was published to, and failing which, the lower Court succumbed to the temptation of fishing for evidence to arrive at the finding of the proof of publication, by placing reliance on the dictionary meaning of the word circular, addressed to a group of persons.
It is trite as stated in Guaranty Trust Bank Plc vs. Mr Hussein Fadlallah (2009) LPELR 8355 (CA), that a defamatory imputation consists of the publication of the alleged defamatory statement to a third person (s) of any words or matter which tend to lower the person defamed in the estimation of right thinking members of the community. To constitute publication, all that is required is the making known of the defamatory matter to some persons other than the person to whom it is written. See also, Ayo Fayose vs. Independent Communications Network & ors (2012) LPELR 9833 (CA), Okafor vs. Ifeanyi (1979) 384 SC 99, Ufua vs. Eborieme (1993) LPELR- 23674 (CA), Nsirim vs. Nsirim (1990) 3 NWLR (pt. 138) 285.
In asserting that appellant published the alleged defamatory words, respondent as plaintiff referred to paragraphs 4, 7 and 10 of the statement of claim, and paragraphs 12, 13 and 13(n) of the amended reply to the amended statement of defense, and argued that the gravamen of the appellants complaint with regards to this issue relates to the fact that respondent did not publish the names of the persons or clearly identified such persons to which the defamatory words were published to. Relying on the case of KLM Royal Dutch Airline vs. Taher (2014) 3 NWLR (pt. 1393) 137 @ 202, and Isikwenu vs. Iroh (2013) 11 NWLR (pt. 1365) 250 @ 280, which is to the effect that the third party must not only be named but must also be clearly identified, argued that appellant did not by any clear and unequivocal averment admit to the publication of the defamatory statement exhibit K to any 3rd party.
The lower Court in the consideration of the issue and at pages 502 to 503 of the record reasoned that:
It is instructive to note that both the claimant and the defendant have agreed that the offending words are contained in a circular Exhibit K, the question is what is a circular now becomes relevant. According to the Oxford Advanced Learners Dictionary, 7th Edition, a circular is a printed letter, notice of advertisement that is sent to a large number of people at the same time indeed it is clear from exhibit K, that the circular was directed to all academic staff. This was clearly stated in the circular.
The lower Court then concluded that;
There is therefore in my view, no reason for the mentioning of names of persons who have seen and read the circular by the claimant. Suffice that he had called Pw 2 and Pw 3 to give evidence in that regard.
This finding by the lower Court is central to the appellants complaint, which is that the lower Court made out a case outside the evidence and pleadings of the parties before it. I accept the contention that the law forbids speculation in the adjudicatory process, which is a trite principle of law, and also trite is the principle of law established in Olalomi vs. NIDB Ltd (2009) 16 NWLR (pt. 1167) 266 @ 304, to the effect that a Court of law can make or draw inferences or analytical situations from established facts and situations before it. See Finnih vs. Imade (1992) 1 NWLR (pt. 219) 511, Kwara State Polytechnic Ilorin vs. Shittu(2012) LPELR 9843 (CA).
In the case of Dantiye vs. Kanya (2008) LPELR 4021 (CA) per Okoro JCA, as he then was, where it was held that a judge by the nature of his adjudicatory functions can draw inferences from stated facts in a case, and by such inferences the judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu, or in the instant case that the judge was fishing for evidence. Coming to the argument on whether the lower Court having labeled the document as a circular, instead of update, the circumstances of the present case to me offers no difference to the issue under contention, after all it is clear from the processes filed including that of the appellant that exhibit K was referred to as a circular. See also the respondents statement of claim, particularly paragraph 4 thereof and paragraph 4 of the defendants amended statement of defence.
The contention of the appellant in that regard is not denying that his name is a cock but a male hen. I would rather think that the determinant issue capable of settling the instant problem rests on the premise of whether as decreed in Ayeni vs. Adesina (supra) the name of the person to whom delivery of the libelous document was made must be pleaded, named and identified, or whether the legal position is as held in the case of Enterprise Bank Ltd vs. Amao(supra), that it is not in all circumstances that the names of the person to whom the alleged libelous document is delivered to, can be numerically mentioned.
In the recent case of Okechukwu vs. UBA Plc (2017) LPELR-43100 (CA) Tur JCA, while referring to the decision of Obaseki JSC in the case of Nsirim vs. Nsirim (1990) 3 NWLR (pt. 138) 285 @ 297, where the erudite jurist stated that:
By publication is meant the making known of the defamatory matter to some person other than the person to whom it is written. The writing of a libel to the person or party labeled does not constitute publication for the purpose of a civil action. It is the reduction of the libelous 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 libelous matter was made, must be pleaded. See also the cases of The Rosicrucian Order (AMORC) Nigeria vs. Henry Awoniyi (1994) 7 -8 SCNJ (pt. II) 390 @ 427.
I must also in that regard make reference to the opinion of Ayoola JSC, in the case of Offoboche vs. Ogoja Local Government (2001) 16 NWLR (pt. 739) 459 @ 483, where the erudite jurist had this to say:
the essence of libel is that the libellious material exists in permanent form. It is essentially continuos in form. It is thus essentially continuos in existence. However publication is a different matter, for what exists in a permanent form is not published until it is made known. Every time it is made known to another, publication takes place.
The entire scenario to my understanding entails the making known of the defamatory statement to a person identified, who gives evidence to that effect. This Court per Denton West JCA, relying on the cases of Esenowo vs. Ukpong (1999) 6 NWLR (pt. 608) 611 @ 621, a decision of the Supreme Court per Achike JSC, held the view that it is not in all circumstances that the names of the persons to whom the alleged libelious document is delivered to can be numerically mentioned.
In the instant case, exhibit K was a circular, containing what the appellant described as an update. It was palpably addressed to the University community. Dr Makanjuola by his written deposition at pages 211 to 214, particularly paragraph 8, stated that:
8. That sometimes in May, 2011 I received a circular purportedly published by ASUU Unilorin, and when I read through the contents and I was shocked to say the least. The said circular was dated 9th of May 2011 and titled Oloruntoba at it again, and the following words were used therein to describe the claimant thus; ..
Dr Adejumo, PW 2 on his part and by paragraph 10 and 11 of his deposition, averred that:
10. That sometime in May, 2011 I came across a circular dated 9th of May, 2011, titled Oloruntoba-Oju at it again.
11. that it was to my shock and surprise when I read the words used in describing the claimant thus:..
The lower Court rightly in my view, sought for the definition of circular in assisting him to see whether the document was indeed published, and thereafter arrived at the conclusion that it was indeed published. I see with the respondent that publication can be proved in different ways, owing to the peculiarity of each given situation, so long as the person to whom the defamatory statement was published to is a different person from the claimant and identifiable. I tend to understand the decisions of Nsirim vs. Nsirim (supra) and Offoboche vs. Ogoja Local Government (supra), both decisions of the Supreme Court in that light.
Let me also examine the other leg of the argument, which is to the effect that the appellants by paragraphs 3, 8(a) and 8(b) earlier reproduced in this judgment admitted to the fact that exhibit K, was published and made known to other persons other than the respondent. At the risk of being accused of repetition, I still reproduce the paragraphs, which are as follows:
3. In further answer to paragraph 4 of the statement of claim, the defendants state that the referred circular called Oloruntoba-Oju at it again dated 9th of May, 2011 was merely an honest update of the unions notice to its members without any iota of falsehood and malice against the plaintiff.
8(a) the defendants further aver that in the said circular, Oloruntoba Oju at it again, item 2 provides explanations for the reaction of the union to the writings of Dr. Oloruntoba-Oju.
8(b) The defendants aver that contrary to the averment contained in paragraph 10 of the statement of claim what is contained in the circular dated 9/5/2011 are fair comments alerting members of the university community, especially members of the academia.
The case ofAyeni vs. Adesina (supra) cited by the appellants supports the view that the principle of admission in civil cases cannot be invoked to prove publication in libel cases. That however does not settle the matter, for as argued by Ogunwumiju JCA, in the case of Amuzie vs. Asonye (supra), that by virtue of Section 75 of the Evidence Act, 2011, the stand in Ayeni’s case cannot be supported. On the issue, Ogunwumiju JCA, had this to say:
with the greatest respect, I would also not go as far as to agree with this Court in the case of Ayeni vs. Adesina (supra) that the general principle relating to admission in civil cases cannot be invoked to prove publication in civil cases(sic). That stand surely contradicts Section 75 of the Evidence Act. It is elementary that admissions in pleadings do not have to be proved Facts admitted need no further proof see Oseni & ors vs. Dawodu & ors (1994) 4 NWLR (pt. 339) 390, UBA & anor vs. Jargaba (2007) 11 NWLR (pt. 1045) 247. I would rather agree with this Court in Ofoegbu vs. Onwuka (2008) ALL FWLR (pt. 412) 1141 @ 1148-1149, that it is not necessary to prove publication where the defendant has made a direct and positive admission of it in the pleadings. See Salawu vs. Yusuf (2007) 12 NWLR (pt. 1049) 707, Ndukwe vs. LPDC (2007) 5 NWLR (pt. 1026) 1.
Thus as posited by the learned jurist, it is not necessary to prove publication by the plaintiff or claimant, where the defendant makes a direct and positive admission of the publication of the defamatory statement in the pleadings. I whole heartedly agree with his lordship.
Now coming to the case at hand, and by the paragraphs of the appellant just reproduced above, the appellant raised the defense of fair comment or justification. The decision of my brother Saulawa JCA, in the case of Ekanem vs. Akpan (2018) LPELR 44036 CA, which adopted the holding in the case of Ojukwu vs. Nnoruka (2000) 1 NWLR (pt. 641) 349 per Ubeazonu JCA, comes in handy. It is to the effect that;
Where the defendant sets up the defense of justification for libel, as in the instant case, the probative burden on the plaintiff or claimant is lessened considerably to some extent. This is because a plea of justification invariably implies;
a. An admission that the matter complained of was published by the defendant.
b. That the publication is true. Thus the onus now shifts on him to prove the truth of the alleged defamatory statement.
I would with respects hold the view that where a defendant pleads justification as in the present case, the admission does not have to be direct, positive and or unequivocal, for as stated above, the plea of justification implies admission of the publication of the defamatory statement, and the need for the strict proof of same is dislodged. I do from the foregoing conclude that the element of publication of exhibit K was established by the respondent, and the lower Court on the right footing to so hold. I resolve the issue against the appellant.
ISSUE TWO.
Considering the evidence adduced herein, whether the trial Court was right in holding that the defense of fair comment could not avail the Appellant in the circumstances of this case.
In his submission on the issue, learned counsel for the appellant referred to exhibits D1 to D10 tendered at the trial Court and relied upon, as well as exhibits A, K, Q and W to support his defense of fair comment. He argued that the trial Court failed to evaluate the documentary evidence before it, in arriving at its conclusion that appellant did not prove fair comment. Learned counsel went down memory lane, on the tussle between the two executive bodies claiming the soul of the UNILORIN branch of ASUU, and specifically referred to various exhibits laid before the Court including exhibit D1 and D2, submitting that a Court of law is duty bound to consider and to give effect and due weight to admissible exhibits properly placed before it.
To support his proposition, counsel cited the cases of Concord Press (NIG) Ltd vs. Olutola (1999) 9 NWLR (pt. 620) 578 @ 590 and Asheik vs. MT Nig. Ltd (2010) 15 NWLR (pt. 1215) 114 @ 155. He submits that the failure of the trial Court to consider exhibits D1, D2 and D10 in its findings on the issue of fair comment led the Court to arriving at a finding that is perverse, Oshinaya vs. COP (2004) 17 NWLR (pt. 901) 1 @ 8, and Anyakora vs. Obiakor (2005) 5NWLR (pt. 919) 507 @ 529. He referred to the outburst by the respondent before the visitation panel, which is contained in exh. 10, and which outburst was not denied. He submitted also that a defense of fair comment succeeds where facts relied on in making the statements are true and sufficient. Ekong vs. Otop (supra) @ 577.
He complained that the trial Court misapprehended the case of the appellant, and thereby misplacing the burden of proof on the appellant. Iheanacho vs. Chigere (2004) 17 NWLR (pt. 901) 130 @ 137. He finally submits that the trial Court failed to decide the case on the merit, and thereby calls upon this Court on the authority of Metibaiye vs. Narelli Int’l Ltd (2009) 16 NWLR (pt. 1167) 326 @ 354, to set aside the decision of the trial Court and to dismiss the respondents claim in its entirety.
In his response to the issue, learned counsel for the respondent relied on the case of Makinde vs. Omaghomi (2011) ALL FWLR (pt. 578) 989 @ 1002 on what ought to be proved by the appellant in satisfaction of his claim of fair comment, which must be specifically pleaded. He argued that the defense of fair comment pleaded by the appellant is bereft of particulars. He goes on to argue that there is nothing in exhibit D5 and D7 that could have generated exhibit K, and the defense of fair comment cannot avail the appellant in the circumstance, as ex. K was not an honest expression of the appellants opinion of the respondent. He alluded to the findings of the lower Court at pages 510 to 511 of the record, which was not subjected to appeal by the appellant, and states that the finding by the trial Court is unassailable.
He continued to argue that exhibits D1, D2 and D10 which is inadmissible in any case do not support the case of the appellant. He still relied on the case of Makinde vs. Omaghomi (supra) @ 1002, to the effect that the words used which constitute the comment relied upon, must always be examined to determine whether they are fair. He submits that malice defeats fair comment as exhibited by the appellant, and thereby urged the Court to resolve the issue against the appellant.
Replying on points of law, learned counsel for the appellant relied on Order 27 Rule 25 of the Kwara State High Court {Civil Procedure} Rules, 2005 to posit that no technical objection shall be raised to any pleading on the ground of any alleged want of form, and the respondents submission that the appellant did not plead the particulars of the defense of fair comment not raised before the lower Court. He cited the cases of Nwangwu vs. Ofoegbu (2003) 7 NWLR (pt. 820) 486 @ 503, and Adetula vs. Akinyosoye (2017) 16 NWLR (pt. 1592) 492 @ 513 – 515, to submit that an appellate Court is not clothe with the jurisdiction to entertain a fresh issue, save with the leave of the Court sought and obtained. On the issue of the report of the visitation panel report not pleaded, counsel argued that a document does not need to be specifically pleaded so long as the facts upon which the document could be founded had been pleaded, and the cases of Bello vs. Sanda (2012) 1 NWLR (pt. 1281) 219 @ 245, Sterling Bank Plc vs. Falola (2015) 5 NWLR (pt. 1453) 405 @ 422, and Ogu vs. MT & MCS Ltd (2011) 8 NWLR (pt. 1249) 345 @ 376 were cited on the point.
He further submitted that the objection to the admissibility of a document at the appellate stage is baseless as was held in the case of NBC Plc vs. Oresanya (2009) 16 NWLR (pt. 1168) 564. He urged the court to allow the appeal and to set aside the decision of the lower court on the basis that the respondent had not proved publication of exhibit K, the appellant had not admitted to the publication of exhibit K, and the defense of fair comments put up by the appellant is unassailable.
I must once again commend the learned counsel on both sides in their exposition of their arguments. I understand the appellant with respect to this issue as saying that exhibit K was a fair comment on the respondent going by the evidence placed before the trial court, and for which the lower Court failed to properly evaluate.
It is trite law established in cases too numerous to mention, that the evaluation of evidence is within the province of the trial Court. As rightly stated by Uwaifo JCA as he then was in Benedict o Nwoti vs. TOS Mbonu (1991) 7 NWLR (pt. 206) 737 @ 745,
It is within the province of a trial Court to evaluate evidence and make findings of fact. A trial Judge cannot perform his function effectively to give meaning to contested facts unless he is able to break those facts down with some rationality, give them probative value that they deserve, make useful and definite findings and draw proper and acceptable inferences from relevant facts of evidence. The reaching of conclusions by drawing necessary inferences is a product of a legal mind and not an indulgence in speculation. See also Oteki vs.
The State (2005) 4 ACLR 401, Nkebisi vs. The State (2010) 5 NWLR (pt. 1188) 471 @ 478. In dealing with the complaint of improper evaluation as in the instant case, the Court considers some yardsticks in arriving at whether proper evaluation and ascription of probative value to the evidence adduced has been done. See Rauf Aregbesola vs. Oyinlola (2011) 9 NWLR (pt. 1253) 458 @ 480. In a proper perspective, the Court considers;
a. What was the evidence before the trial Court,
b. Whether it accepted or rejected any evidence upon the correct perspective,
c. Whether it correctly approached the assessment of the evidence before it and placed the right probative value on it,
d. Whether it used the imaginary scale of justice to weigh the evidence on either side, and
e. Whether it appreciated upon the preponderance of evidence which side the scale of justice weighed having regard to the burden of proof.
The complaint by the appellant is that his defence of fair comment before the lower Court was not properly considered by the lower Court. The state of the law is as stated in Makinde vs. Omaghomi (supra), that for a defendant to avail himself of the defense of fair comment, he must establish that:
a. It was based on facts truly stated.
b. It must be an honest expression of the writers real opinion, and
c. It must not contain insinuations of corrupt or dishourable motives on the person, whose conduct or work is criticized, save in so far as such imputation is warranted from the facts, and
d. The defense must be pleaded.
The lower Court from page 510 of the record, after taking addresses on the issue, rightly in my view, proceeded to state that in order to succeed on a plead of justification or fair comment as in this case, the defendant has the onus to justify the imputation complained of. See Omonuwa vs. Enogieru (1992) 7 NWLR (pt. 255) 593 @ 603. In other words, the burden is on the appellant as defendant to justify his claim that the statement made was infact a fair comment, or justified in the circumstances. This Court said so recently in the case of Ekanem vs. Akpan (2018) LPELR-44036, per Saulawa JCA, agreeing with the decision of Ubeazonu JCA, in the case of Ojukwu vs. Nnoruka (2000) 1 NWLR (pt. 641) 349, to the effect that where the defendant sets up the defense of justification for libel, the probative burden on the plaintiff is lessened to some extent, this is because a plea of justification invariably implies that:
a. An admission that the matter complained of was in fact published by the defendant.
b. That the publication is true, thus the onus on him to prove the truth of the statement made.
The lower Court then appraised the evidence laid before him on the issue and, held that:
Specifically in this case, the defendant has referred to and described the claimant in Exhibit K as a pathological liar who through his puerile (silly) writing, aimed at causing rancor, disaffection and acrimony among the rank and file of the University of Ilorin community particularly members of the Academic Staff Union of Universities, and for that reason, that members should be weary of the claimant whose antics is propaganda as well as fomenting trouble for personal benefits.”
I have carefully examined Exhibits W and D7 relied upon by the defendant as forming the basis for his publication of Exhibit K. For clarity sake, Exhibit W is a circular captioned. Re: ASUU UNILORIN BRANCH dated 23 February, 2011 and written by the claimant as chairman of ASUU Unilorin Branch.
The circular only expressed the constitutional power of the ASUUs NEC to regulate the affairs of the branch and willingness and desire of the union both National and Local to return the Unilorin branch to normalcy.
There is no where the name of the defendant was mentioned in the circular.
Neither is attack or aspersion cast on the defendant or any person for that matter to have warranted the publication of Exhibit K, by the defendant.
Similarly, Exhibit D7 is a circular dated 5th April, 2011 with the caption, Violation of Regulation on Promotion and other welfare issues.
It was also written by the claimant as chairman of ASUU Unilorin branch with a copy each sent to the Registrar and Secretary to Council and Director, Legal unit of the University of Ilorin.
Again, there is nowhere in the circular that the name of the defendant, whether the late Dr. Omo-Iya or the defendant herein was mentioned to have warranted the publication of Exhibit K, by the defendant.
Indeed, the defendant herein stated under cross-examination as follows;
It is part of the activities of union leaders to champion the welfare of members. I also championed the injustice meted to members with regards to their promotion.
I was promoted after the struggle to the rank of a professor.
Part of means by which Union leaders drive home their point is to embark on strike. But that is not more fashionable. It should be sparingly used.
I am aware that strike action is legitimate and no employer must victimize employees who have embarked on strike.
On the basis of the above admission therefore, I agree with the claimants counsel that the defendant cannot be right to tag the circular (Exhibit K), in the face of the appellants description of the claimant as a pathological liar etc, as fair comments, and I so hold.
It is to be noted that the claimant did not just write Exhibits W and D7.
He wrote it as the chairman of ASUU Unilorin branch following as confirmation as such by Professor Ukachukwu Awuzie, National President of ASUU vide his letter dated 6th Feb, 2011 addressed to the Vice Chancellor, Unilorin and copied to ASUU Unilorin branch.
The letter is Exhibit Q.
It is my view that neither Exh. D1 nor D2 can form the basis of Exh. K.
The reason is that Exh. D1 is dated 1999 and titled: Denial of promotion to the rank of professor by the claimant while Exh. D2 is the reply by the University to the letter. It is dated 29th Aug. 2000.
It is instructive to state that Exh. K that was written in February 2011 cannot have as its basis the letters that have been written more than 10 years earlier. What is more, the said Exh. D1 was a personal appeal to the University by the claimant. Therefore, the defendant has no business whatsoever in speaking for the University authority on the matter and I so hold.
With regards to Exhibit D11, it is my view that the document being a Court process cannot also be the basis for writing Exh. K.
The process i.e the notice of Appeal is in respect of a case between: DR. TAIWO OLORUNTOBA OJU AND AG. FEDERATION & 2ORS.
The defendant, again has no business with the case; not being one of the parties. And so, the notice of Appeal filed only in May 2016 cannot form the basis for the circular that was published in 2011; two years before the notice of Appeal Exh. D11 was filed.
From whatsoever angle one looks at this case, I am of the view that the defendants reliance on the defense of fair comment cannot hold water.
I have carefully, examined the documents put in issue by the appellants in the determination of whether exhibit K, the alleged defamatory statement was indeed a fair comment with regard to exhibits D5, D7 and even D10, being the bench mark upon which exhibit K was responded to, and find myself irresistibly in firm agreement with the respondent and the lower Court, that appellants plea of justification and or fair comment cannot avail him. This issue is also resolved against the appellant.
Hence all the issues having been resolved against the appellant, the inevitable conclusion is that the appeal lacks substance and it is hereby dismissed by me. The decision of M. O. Adewara J in suit KWS/210/2011 between Dr. Taiwo Oloruntoba-Oju and Dr. Abdulrasheed Adeoye delivered on the 13th of April, 2017 is hereby affirmed.
The Appellant shall pay costs of fifty thousand naira only to the respondent as costs.
CHIDI NWAOMA UWA, J.C.A.: I was privileged to have read before now the draft copy of the judgment of my learned brother, HAMMA AKAWU BARKA, JCA.
I agree with the comprehensive reasoning and conclusion of my learned brother in holding that the appeal lacks merit. I also dismiss the appeal and abide by the order made as to costs.
BOLOUKUROMO MOSES UGO, J.C.A.: I have read before now the judgment just delivered by my learned brother HAMMA AKAWU BARKA J.C.A. I agree with his reasoning and conclusion, I also dismiss the appeal with costs of N50,000.00.
Appearances:
Oladele Bello with him,N.N.
Adegboye and Segun Ogundola For Appellant(s)
Y. A. Alajo with him, L. O. Bello For Respondent(s)
