DR. INIH A. EBONG v. UNIVERSITY OF UYO & ANOR
(2019)LCN/12702(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of February, 2019
CA/C/262/2017
RATIO
COURT AND PROCEDURE: DISCRETION TO RAISE AN ISSUE SUO MOTO
“It is settled that a Court has the discretion to raise an issue suo motu in its duty to ensure that justice is done in the matter before it, the apex court in the case of ODEDO VS. PDP (2015) LPELR-24738 (SC) said thus:’The law is well settled that it is within the competence and province of a Court to raise a point suo motu for purpose of serving the interest or course of justice. However, and that notwithstanding, it is also incumbent on the Court to invite parties, particularly the party that may be adversely affected as a result of the point raised suo motu, to address it on such a point before basing its decision thereupon. This is a matter of duty and a fulfillment of the constitutional requirement of fair hearing the breach of which is very fundamental. No point raised in this circumstance i.e. suo motu can ever be trivialized. See PROV. LIQUIDATOR, TAPP IND. VS. TAPP IND. (1995) 5 NWLR (PT. 393) 9; see also OLUSANYA VS. OLUSANYA (1983) 1 SCNLR 134, (1983) 14 NSCC 97′” PER YARGATA BYENCHIT NIMPAR, J.C.A.
LIBEL: WHETHER A LIBEL MUST BE PUBLICATED
“Hence, the statement of claim must, in principle, show that the words were published on a stated occasion to a named person or persons, other than the plaintiff. See GATLEY ON LIBEL & SLANDER (supra). In BASORUN VS. OGUNLEWE (2000) 11 NWLR (PT. 640) 223-238, Aderemi, JCA (as he then was), held as follows: ‘Publication of a defamatory statement is an essential element of the cause of action in libel (slander) cases… And publication is the act of making the defamatory statement known to any person other than the plaintiff himself. Of course publication must be proved by credible evidence.’ Per SANKEY, J.C.A.” PER YARGATA BYENCHIT NIMPAR, J.C.A.
JUSTICES
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
DR. INIH A. EBONG Appellant(s)
AND
1. UNIVERSITY OF UYO
2. PUNCH (NIGERIA) LTD Respondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Akwa Ibom State delivered on the 8th day of May 2017 by Hon. Justice Okon A. Okon wherein the Court below dismissed the claim of the Appellant. Aggrieved by the said decision, the Appellant filed a Notice of Appeal dated the 26th day of May, 2017 wherein he set out six (6) grounds of Appeal.
The Appellant initiated the claim before the Federal High which was eventually transferred to the High Court of Akwa Ibom for want of jurisdiction. The claim as stated in the Further Amended Statement of Claim is as follows:
i.A declaration that the purported disclaimer published of, about and concerning the Plaintiff by the Defendants at pages 28 of the Punch Newspaper Vol. 17 No. 18613 of Friday, July 26, 2002, is libelous of the Plaintiff and was actuated by malice, improper motives and bad conscience.
ii. AN ORDER compelling the Defendants to retract forthwith the purported disclaimer of the Plaintiff published by the Defendants at page 28 of The Punch Newspaper Vol. 17 No. 18613, of Friday, July 16, 2002.
iii.AN ORDER compelling the Defendant to write and publish, together with the Plaintiff?s photograph, on the front pages of at least three national newspapers which are also published on the Internet, namely: The Punch, The Nation and This Day News papers, an acceptable and suitably worded apology to the Plaintiff for their publication of the disclaimer, having regards also to the libelous contents of the publications regarding the Plaintiff at page 34 of Newswatch Weekly Magazine Vol. 17 No. 18610 of Tuesday, July 23 2002.
iv.AN ORDER OF PERPETUAL INJUNCTION restraining the defendants by themselves, their servants, agents, privies, proxies and assigns, howsoever known and called, from any further false, malicious and libelous publication of, about and concerning the Plaintiff and his interests.
v.THE SUM OF N500 MILLION (Five Hundred Million Naira) as general damages for libel.
vi.THE SUM OF N200 MILLION (Two Hundred Million Naira) as aggravated damages for the aggravated injuries suffered by the Plaintiff from the Defendants’ false and malicious publications of, about and concerning him.
vii.THE SUM OF N100 MILLION (One Hundred Million Naira) as exemplary damages to punish and deter the Defendants from engaging again in false, malicious and libelous publications against the Plaintiff.
SPECIAL DAMAGES
a.AN ORDER that the defendants bear full the cost of this action, made up of the filing fees, the professional legal fees (including consultation and appearance fees) of counsel and the Plaintiff’s personal transportation expenses to and from the Courts, from 22nd October 2002 when this action was commenced in the Federal High Court, Calabar, till the determination of this case, totaling in part to the sum of N863, 020.00 (Eight hundred and Sixty-three thousand twenty Naira).
Parties joined issues through their pleadings and the matter proceeded to trial and it culminated into a dismissal of the claim. The Appellant was an Associate Professor and Acting Head of Department with the 1st Respondent but had his employment terminated. The relationship went sour after certain events which made the Appellant to file for enforcement of his fundamental rights after which the 1st Respondent terminated the appointment and cause to be published, a disclaimer with the picture of the Appellant on the 26th day of July 2002 thus the action leading to this appeal.
The Appellant filed his Appellant’s brief settled by Nsikak Effiong, Esq., dated 12th day of October 2017 on the 12th day of October, 2017 which distilled four (4) issues for determination namely:
i.Whether in the circumstances of this case, the two issues raised suo motu by the Court below, after the parties had settled the issue for determination, occasioned a miscarriage of justice on the Appellant.
ii.Whether in the light of the facts of this case, the Appellant had any legal or evidential burden to specifically plead that, PW2, as a member of the ‘the entire public,’ of an indeterminate class, read Exhibit 2, having regard to the evidence of PW2 and the Further Amended Statement of Claim.
iii. Whether in the circumstances of this case, the Court below was right, in law, when he held that, the Appellant ought to have pleaded how his only witness (PW2) understood the offending publication.
iv.Whether the failure of the Court below to evaluate the evidence properly and the conflict has not occasioned a miscarriage of justice.
The 1st Respondent’s brief settled by Fidelis A. Iteshi, Esq., is dated 15th day of October, 2018 and filed 15th day of October, 2018, it adopted issues 1 and 2 of the Appellant’s issues for determination and formulated one additional issue for determination making it three (3) issues as follows:
a.Whether it is necessary in this case, the two issues raised suo motu by the Court below, after the parties has settled issues for determination, occasioned a miscarriage of justice on the Appellant.
b.Whether the failure of the Appellant to plead the facts contained in the witness deposition of PW2 was not fatal to the case of the Appellant?
c.Whether the trial Court dispassionately evaluated the evidence before the lower Court before arriving at the conclusion it reached and if it did not, whether a further evaluation will avail the Appellant of his claims?
The 2nd Respondent’s Brief settled by Innih Archibong, Esq., is dated 12th day of October, 2018, filed on the 15th day of October, 2018 and was deemed on the 16th day of October, 2018. The 2nd Respondent adopted the Appellant’s four (4) issues for determination.
Upon a careful consideration of the Notice of Appeal, the record of Appeal and the Briefs of all parties, the Court is of the belief that the issues distilled by the Appellant reflect his complaint against the judgment of the trial Court. I shall therefore adopt the Appellant?s issues for determination in this appeal but shall consider them holistically and seamlessly.
The Appellant submitted that the decision of the Court below to raise questions suo motu though gave parties an opportunity to address the Court below before judgment occasioned a miscarriage of justice because only pleadings decide issues between parties, relied on BASSEY VS. MINISTER OF DEFENCE (2006) 45 WRN 190 @ 201 and MBANEFO VS. MOLOJWU (2014) ALL FWLR (PT. 742) 1665 @ 1692 on the object of pleadings. He argued that all parties are bound by the pleadings on the authority of OJO VS. ABT ASSOCIATES INCORPORATED (2017) 9 NWLR (PT. 1570) 167 @ 187-188 and AKANMU VS. ADIGUN (1993) 7 NWLR (PT. 304) 218. He referred to the Appellant’s statement of claim and the evidence presented particularly Exhibits 11, 17, 23, 19, 24, 2, to argue that the pleadings before the Court and evidence established the following facts:
i.There was a libelous publication- exhibit 2.
ii.The publication was about and concerning the Appellant, and no other.
iii.It was the 1st Respondent vide Exhibits 31 and 32 who authorized the publication of the libelous document, while the 2nd Respondent was the author of Exhibit 2.
iv.The publication, given the time it was made, and about the Appellant, was without any justification.
v.Exhibit 2 was published and circulated to the whole world when it was not established or proved that, the Appellant was still conducting and holding himself out as an employee of the 1st respondent after his appointment was terminated.
vi.None of the Respondents denied publishing Exhibit 2 and circulating it to the entire public.
On the basis of the facts above, the Appellant considered the action of the trial judge in raising questions as meddlesome because issues were settled during pre trial, citing ASESA VS. EKWENEM (2009) 172 LRCN 1 AT 21 on the approach the trial Court should take in determining any claim and that the sole issue settled by the parties was clear, therefore the trial Court erred in raising issues suo motu or reformulate issues settled by the parties singlehandedly, he relied on ANIE & ORS. VS. UZORKA & 10 ORS. (1993) 13 LRCN (PT. A) 812 AT 820; OBUMSELI VS. UWAKWE (2009) 28 WRN 147 at 167; ADEOSUN VS. BABALOLA (1972) 7 NSCC 401 and NNAMANI VS. NNAMANI (1996) 3 NWLR (PT. 438) 591.
The Appellant further submitted that the Court made mockery of the true essence and import of pre trial conference as provided in Order 25 of the Akwa Ibom State High Court (Civil Procedure) Rules, 2009, relied on ADEGBUYI VS. MUSTAPHA (2010) ALL FWLR (PT. 532) 1753. Learned counsel for the Appellant submitted that the issues raised suo motu did not arise from the pleadings and evidence because none of the parties made the publication of Exhibit 2 to a named third party an issue, relied on OGUNDALU VS. MACJOB (2015) ALL FWLR (PT. 784) 103 @ 123. Appellant contended that the Court below bridged the gap in the case of the Respondent which occasioned a miscarriage of justice to the Appellant. Appellant also referred to Order 15 Rule 17(3) of the Akwa Ibom State High Court (Civil Procedure) Rules.
He contended that none of the Respondents raised a defence of justification and none alleged nor proved that the Appellant constituted a risk to members of the public to warrant his termination. Therefore, he submitted that a Court should not bridge the gap in the case of parties, relying on the OMONIYI VS. ALABI (2015) ALL FWLR (PT. 774) 181 @ 198 and that the condition when a Court can raise issues suo motu were absent, citing DAIRO VS. UBN PLC & ANOR. (2007) 152 LRC 18 @ 51 and IMAH VS. CHIEF OKOGBE (1993) 9 NWLR (PT. 316) 159. He submitted that the issues raised were extraneous to the pleadings and evidence, citing OGUNDELE VS. AGIRI (2010) 9 WRN 1 AT 33. He urged the Court to find for Appellant.
On issue two the Appellant submitted that he was not under any duty to plead the identity of the third party in order to succeed in the claim having pleaded material facts according to rules of Court. He referred to paragraph 7 of the further Amended statement of claim which mentioned the publication made to the Nigerian Public and the world at large; also paragraph 11 which alleged many members of the public which presumably is inclusive of PW2. Appellant challenged the basis upon which the Court below arrived at its decision, particularly when the judge said the pleading was deficient.
He argued that publication was proved as decided inNSIRIM VS. NSIRIM (1990) 3 NWLR (PT. 138) 285. The point was strongly made by the Appellant that it is not a requirement of the law that the third party must be named to qualify as a third party to whom the publication was made. He relied onENTERPRISE BANK LTD. VS. AMAO (2014) ALL FWLR (PT. 738) 994 where three parties were named as necessary in a claim for libel thus, the publisher, the person defamed and the person the publication was delivered to and all three the Appellant contended were established. Furthermore, the appellant argued that PW2 belongs to the class called general public to whom the publication was directed, citing ENTERPRISE BANK LTD. VS. AMAO supra. He argued that the case of EZOMO VS. OYAKHIRE (1985) 2 SC 221 allowed the evidence of a third party who was not mentioned in the pleadings but part of indeterminate crowd. The Appellant relying onINEC VS. ATUMA & ORS. (2013) 4-5 SC (PT. V) 95 @ 120 & B.B. B. MANUFACTURING CO. LTD. VS. A. C. B. LTD. (2004) ALL FWLR (PT. 198) 1175 condemned the approach adopted by the trial Court in arriving at the decision and further stated that publication was clearly established. That the Court therefore erred by deviating from the case settled by the parties in their pleadings, citing a long chain of authorities on when issues are joined on pleadings. Appellant further argued that there was no precondition to the admissibility of the evidence of PW2.
On issue three the Appellant contended that it was wrong of the trial Court to hold as it did at pages 282 of the record that there was no pleading on how the third party understood the publication, citing the case of CROSS RIVER STATE NEWSPAPER CORPORATION VS. ONI & 6 ORS. (1995) 1 NWLR (PT. 371) 370 and VANGUARD MEDIA LTD. VS. OLAFISOYE (2012) ALL FWLR (PT. 634) 97 to submit that the cause of action in libel is complete upon the proof of publication and the defence is bound to show that publication of the statement was not true, citing INLAND BANK (NIG.) PLC VS. FISHING & SHRIMPING CO. LTD. (2013) ALL FWLR (PT. 675) 356 at 371. Appellant referred to paragraphs 3-16 of the Amended Statement of claim and argued that he established the imputation about the Appellant and the evidence of PW2 also established the imputation about the Appellant arising from the publication. He surmised that the Court erred in its findings as the judgment is not based on evidence and therefore it should be set aside, relying on AKINWUMI VS. IDOWU (1969) ALL NLR 319 and AYOADE VS. SPRING BANK PLC (2014) 4 NWLR (PT. 1396) 93.
The Appellant on issue 4 submitted that the trial Court failed to evaluate evidence thereby ending up with a conflict in his conclusion which he contended occasioned a miscarriage of Justice, citing BUHARI VS. INEC (2009) 7 WRN 1 @ 122; LONGE VS. FIRST BANK OF NIGERIA PLC (2010) 5 NSCR 1. He submitted that the entire pleadings must be read as a single document citingASESA VS. EKWENEM (2009) 173 LRCN 1 @ 21. He argued that it is from facts that usually grounds issues for determination before the Court as held inADEGOKE MOTORS (NIG.) LTD. VS. ADESANYA (1989) 5 SCNJ 80. Furthermore, that the trial Court wrongly applied the authority of AJAKAIYE VS. OKANDEJI (supra) and if it had evaluated the evidence, the Appellant should have been entitled to judgment. He highlighted certain points which he claims support his case because he had a strong, cogent and uncontroverted case, citing EYO VS. ONUOHA & ANOR. (2010-2013) 6 SCNJ 212. The Appellant contended that the trial judge abdicated from doing his duty and failed to enter judgment and it thereby occasioned a miscarriage of justice and that amounts to approbating and reprobating. He urged the Court to interfere and do justice. The Appellant referred to Exhibit 2 (the publication) to submit that it was proved and a demand for retraction was not heeded to by the Respondents, therefore, damages should have been awarded based on the factors listed in NEPA VS. INAMETI (2002) ALL FWLR (PT. 130) 1695. He finally submitted that the Appellant was injured by the publication and urged the Court to allow the appeal.
The 1st Respondent argued issues I and 2 together, and issue 3 separately. The 1st Respondent submitted that the Appellant failed to show how the judgment occasioned a miscarriage of justice. The 1st Respondent defended the action of the trial judge which he submitted is in line with rules of fair hearing by giving the parties an opportunity to address the Court before resolving the issues and handing down a decision, citing DIM CHUKWUEMEKA ODUMEGWU OJUKWU VS. ALHAJI UMARU MUSA YAR’ADUA (2009) 38 NSCQR (PT.1) 492; SUNDAY GBAGBARIGHA VS. ADIKUMO TORUEMI & ANOR. (2013) 6 NWLR (PT. 1350) 312; CHIEF V. C. OBUMSELI VS. CHIEF CHINYELUGO AMECHI UWAKWE (2009) 8 NWLR (PT. 1142) 55; STIRLING CIVIL ENGINEERING NIG. LTD. VS. YAHAYA (2005) 11 NWLR (PT. 935) 181 and OLATUNJI VS. ADISA (1995) 2 NWLR (PT. 376) 176.
He distinguished the facts of this appeal and the case of OBUMSELI VS. UWAKWE relied on by the Appellant because in that case, parties were not given an opportunity to address the Court on the issue raised suo motu. The 1st Respondent contended that the Appellant having addressed the Court on the issues raised he cannot complain as no party can approbate and reprobate citing ATTORNEY GENERAL RIVERS STATE VS. ATTORNEY GENERAL AKWA IBOM STATE (2011) 8 NWLR (PT. 1248) 31; MRS. VICTORIA ABE VS. SKYE BANK PLC (2015) 4 NWLR (PT. 1450) 512 and S & D CONSTRUCTION COMPANY LIMITED VS. CHIEF BAYO AYOKU & ANOR. (2011) 13 NWLR (PT. 1265).
Furthermore, the 1st Respondent submitted that publication must be proved in a claim for defamation and the trial judge was right in asking the parties to address him on whether publication was proved. He cited the case ofNEPA VS. INAMETI (2002) FWLR (PT. 130) 1695 on the need for the name of third party to whom the offensive material was published and that no identifiable person was named, knowing fully well that publication to a known person other than the plaintiff must be proved and as held in VANGUARD MEDIA LIMITED VS. OLAFISOYE (2011) 14 NWLR (PT. 1267) 207. He noted that there is no where mentioned in the Amended Statement of Claim that the PW2 read the alleged publication and therefore no facts upon which the evidence of PW2 can hang and the statement on oath should have been struck out because parties and the Court are bound by pleadings, relied on SOGUNRO & ORS. VS. YEKU & 2 ORS. (2017) 9 NWLR (PT. 1570) 290; ETA VS. DAZIE (2013) 9 NWLR (PT.1359) 248; AKINTERINWA VS. OLADUNJOYE (2000) 6 NWLR (PT. 659) 92 and AMINU VS. HASSAN (2014) 5 NWLR (PT. 1400) 287.
He distinguished the case ofEZOMO VS. OYAKHIRE (1985) 2 SC 221 on the publication to an ‘indeterminate crowd’ by contending that it was a different species of defamation and not libel where the particular person who read the publication must be named. Furthermore, that in such situation, pleading is required to lay a foundation. In analyzing the issue, the 1st Respondent submitted that the said PW2 did not mention when he read the publication and how he came in contact with the publication while the Appellant himself did not plead anything about PW2, that, therefore the indeterminate crowd principle cannot apply. He relied on INLAND BANK NIGERIA PLC & ANOR. VS. FISHING & SHRIMPING CO. LTD. (2010) 15 NWLR (PT. 1215) 395 to submit that the trial judge did not err in arriving at the decision.
The 1st Respondent under issue three contended that the trial judge evaluated the evidence to justify the outcome and therefore, the Court has no business re evaluating the evidence following the decision in HAMZA VS. KURE (2010) 10 NWLR (PT. 1203) 630. He argued that the decision is not perverse and as such cannot attract any interference. The 1st Respondent referred to pages 288 of the record of appeal where the trial judge stated that the 1st Respondent failed to defend the allegation as the publication was defamatory but for the failure to plead publication to a named third party the claim would have succeeded. He contended that it obviously shows that the trial Court evaluated the case to come to that decision though wrong, that, it does not justify non-evaluation because the trial judge performed his role dutifully and that the comments referred to are obiter, without any benefit to the Appellant.
Arguing in the alternative, the 1st Respondent submitted that even if the publication is found to be an offensive article, they are entitled to the defence of justification, which it submitted is a defence that extinguishes the claim of the appellant, relying on AMUZIE VS. ASONYE (2011) 6 NWLR (PT.1242) 10; SKETCH PUBLISHING CO. LTD. VS. AJAGBEMOKEFERI (1989) 1 NWLR (PT.100) 678. The 1st respondent submitted that a true statement cannot be defamatory. The 1st Respondent argued further that the appointment of the Appellant had been terminated before the alleged publication and therefore the disclaimer did not add anything to the settled position but merely stated the truth of what transpired and to warn the public, he referred to PETERSIDE VS. FUBARA (2013) 6 NWLR (PT. 1349) 156 on what malicious publication is and exceptions to the general rule. The 1st Respondent further argued that the alleged statement was made as public duty, in the interest of the public, and therefore it cannot be held to be defamatory. The 1st Respondent submitted that it is entitled to the defence of qualified privilege and justification and therefore the claim should justifiable fail.
The 2nd Respondent on its part adopted all the four (4) issues formulated by the Appellant for determination in this appeal. On issue one the 2nd Respondent submitted that the Court has the power to raise issues suo motu subject to calling the parties to address the Court before a decision which was done in this case, citingALHAJI ADELEKE VS. ALHAJI RAJI & ORS. (2002) FWLR (PT.116) 817; ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD VS. MALLAM GARBA & ORS. (2002) FWLR (PT.123) 200 and FASUBA VS. MRS. ADUMASHI (2002) FWLR (PT.119) 1528.
On issue two, the 2nd respondent submitted that the name of the third party must be pleaded in a case of defamation by libel, relying onGIWA VS. AJAYI (1993) 5 NWLR (PT.294) 423. Learned counsel reviewed the pleadings of the
Appellant and drew the attention of the Court to the deficiency in the pleadings by the failure of the Appellant to plead the name of the third party as required and submitted that parties are bound by pleading. He argued that failure to conform with legal requirement defeated the claim and the trial Court was right to so find. Arguing further, the 2nd Respondent relied onNSIRIM VS. NSIRIM (1990) 3 NWLR (PT.128) 255 to submit that proof of defamation goes beyond publication and the claimant must plead that it was conveyed to a third party who will give such evidence, more so, that PW2 did not tell the Court that the publication was conveyed to him and no such pleading that, as third party, PW2 would testify to that effect, citing AJAKAIYE VS. OKANDEJI (1972) supra and ANATE VS. SANUSI (supra).
On issue three, the 2nd Respondent submitted that the Appellant ought to have pleaded how his only witness understood the offending publication but failed, relying on INLAND BANK (NIG) PLC VS. FISHING & SHRIMPING CO. LTD. (2013) ALL FWLR (PT. 675) 356 and EKONG VS. OTOP (2014) 11 NWLR (PT. 1419) 549 and rules of trial Court. It contended that failure to plead defeats the claim.
The 2nd Respondent on Issue 4 submitted that the Court properly evaluated the evidence to arrive at a decision upon which it gave an opinion in the alternative on the assumption that it was wrong in its findings, relying on ORHENA ADUGU GBILEVE & ANOR. VS. MRS. NGUNAN ADDINGI & ANOR. (2014) SC 193/2012. It argued further that the Appellant was no longer the employee of the 1st Respondent at the time of the publication and there was no imputation of wrong doing against the person of the appellant throughout the public notice citingZP IND. LTD. VS. SAMOTECH LTD. (2007) 16 NWLR (PT. 1060) 315 and urged the Court not to interfere. Finally, it urged the Court to resolve the issues against the appellant and dismiss the appeal.
In reply, the Appellant submitted that his complain was on procedure not substantive law and therefore the issue of waiver cannot arise, relied on ARIORI VS. ELEMO (1983) 1 SCNLR 1. That addressing the Court on the two issues raised suo motu should not blur the vision of the Court because it had no right to raise the issues in the first place, moreso consent of parties cannot confer jurisdiction on the Court. He contended that the cases cited by the Respondents are distinguishable and inapplicable.
On the non mention of the third party – PW2 in the pleadings, the Appellant contended that the trial Court should have inferred it and not dismiss the case of the Appellant on the basis of extrinsic factors, relying on OKAGBUE VS. ROMAINE (1982) ALL NLR (PT. 1) 103. Appellant submitted that the case ofDUMBO VS. IDUGBOE (1983) NSCC 22 is on all fours with the facts of this case and the evidence of the third party was admitted and relied upon, that it was also the basis of the decision in ENTERPRISE BANK LTD. VS. AMAO (2014) ALL FWLR (PT. 738) 994. He submitted that a party is expected to prove essential facts and not every fact in the pleading.
On the remark by the trial judge which 1st Respondent tagged orbiter, the Appellant submitted that it was a ratio and not orbiter, citingBALONWU & ORS. VS. GOVERNOR OF ANAMBRA STATE & ORS. (2009) 18 NWLR (PT. 1172) 13. He finally urged the Court to allow the appeal.
RESOLUTION
It is pertinent to start from the vexed issue of whether the trial judge can raise issues suo motu and call on parties to address the Court before a decision on the matter. It is settled that a Court has the discretion to raise an issue suo motu in its duty to ensure that justice is done in the matter before it, the apex court in the case of ODEDO VS. PDP (2015) LPELR-24738 (SC) said thus:
“The law is well settled that it is within the competence and province of a Court to raise a point suo motu for purpose of serving the interest or course of justice. However, and that notwithstanding, it is also incumbent on the Court to invite parties, particularly the party that may be adversely affected as a result of the point raised suo motu, to address it on such a point before basing its decision thereupon. This is a matter of duty and a fulfillment of the constitutional requirement of fair hearing the breach of which is very fundamental. No point raised in this circumstance i.e. suo motu can ever be trivialized. See PROV. LIQUIDATOR, TAPP IND. VS. TAPP IND. (1995) 5 NWLR (PT. 393) 9; see also OLUSANYA VS. OLUSANYA (1983) 1 SCNLR 134, (1983) 14 NSCC 97 at P. 2, wherein this Court per Ejiwunmi, JSC, (of blessed memory), stated the governing principles that should guide a Court in such circumstances as follows:- “…this Court has said on a number of occasions that although an Appeal Court is entitled, in its discretion, to take points suo motu if it sees fit to do so, yet that discretion must be exercised sparingly and in exceptional circumstances only. Where the points are so taken, the parties must be given the opportunity to address the appeal Court before decision on the points is made by the appeal court…” Per OGUNBIYI, J.S.C
That is a settled position of law on a Court raising an issue suo motu. The Appellant in reply submitted that there is a procedural and a substantive angle to the issue. The law is that the Court can raise an issue suo motu and procedurally, it must call on parties to address the Court before a decision is taken which was what happened in this case.
The argument of the Appellant is that the 2 issues raised by the trial Court were outside the issues settled by the parties in their pleadings. The two questions were as follows:
i. Whether it is necessary in this case for the Claimant to specifically plead and prove publication of the disclaimer contained in the Punch Newspapers of 26th July 2002, the cause of action in this suit to a named 3rd party.
ii. If the answer to question 1 above is in the affirmative, whether the claimant by the evidence of PW2 in this case has proved such publication.
The parties settled a sole issue namely: whether or not the Plaintiff has been defamed by the publication complained of in this case (see pages 230-234 of the record of appeal). The issues raised by the trial Court narrowed down the question to be determined to whether publication was proved.
Indeed, there cannot be libel without publication, see SULEIMAN VS. ADAMU (2016) LPELR-40316 (CA) which held thus:
“It is also trite and a cardinal principle of the law of defamation that a person It is trite law that to succeed in a case of libel or slander, the claimant must prove that he has been discredited by the imputation in the alleged statement without legal justification. It is also trite and a cardinal principle of the law of defamation that a person’s reputation is not based on the opinion he has of himself; but rather, the estimation in which others hold of him. Therefore, there must be publication of the libelous matter/words to a third party. Thus, a man commits the tort of defamation when he publishes to a third person words or matter containing an untrue imputation against the reputation of another. The publication of words defamatory to the plaintiff gives rise to a prima facie cause of action. The law presumes in the plaintiff’s favour that the words are false, unless and until the defendant proves the contrary.
Hence, the statement of claim must, in principle, show that the words were published on a stated occasion to a named person or persons, other than the plaintiff. See GATLEY ON LIBEL & SLANDER (supra). In BASORUN VS. OGUNLEWE (2000) 11 NWLR (PT. 640) 223-238, Aderemi, JCA (as he then was), held as follows: “Publication of a defamatory statement is an essential element of the cause of action in libel (slander) cases… And publication is the act of making the defamatory statement known to any person other than the plaintiff himself. Of course publication must be proved by credible evidence.” Per SANKEY, J.C.A.
It is therefore preposterous of the Appellant to submit that the 2 issues raised by the Court below were outside the case of the parties.
The Appellant would have made a point if he argued that there was in fact no need for the trial Court to raise any issue relating to publication when the claimant is duty bound to prove publication in order to succeed in a claim for libel. The issues settled by the parties cannot go outside the question of publication which within it, the questions raised by the trial Court must of necessity be a part of and must be answered. The legality of raising the two issues and procedure adopted by the trial Court cannot be faulted but the desirability of the trial Court raising them in this case can be considered unnecessary and even at that, he had the discretion to do so and cannot be faulted. Did it occasion a miscarriage of justice? The Appellant failed to show how raising issues suo motu by the Court where parties were allowed to address the Court on the said issues occasioned a miscarriage of justice. The question the trial Court answered in the judgment was simply that the Appellant did not prove publication to a third party and that arose from the deficient pleadings in not naming the third party. The Appellant admitted not naming or describing the third party in the pleadings. Paragraphs 7 and 11 of the amended statement of claim pleaded and averred the publication to the Nigerian Public and the world at large through the 2nd Defendant’s Newspaper. The Nigerian Public and the world at large is an indeterminate class of persons.
It did not plead that a third party read the disclaimer nor did he identify PW2 as the third party who read the offending article and whose opinion of the Appellant changed as a result of the publication. The Appellant did not plead foundational basis for the calling of an unidentified third party as was done in the old case of EZOMO VS. OYAKHIRE (supra) wherein it held that in a situation where the libel was published to an indeterminate crowd, the party must plead and allege as follows:
“The Plaintiff believes that the said words were also published to some other persons whom he cannot at present specify; but he will rely upon the publication thereof to every person to whom he may discover the same to have been published.”
The rationale is simple, the Claimant may not be certain of a particular person who read the libelous material at the time of taking out the writ and a publication in a Newspaper is indeed to an indeterminate crowd, he cannot know each and every person who has read it. He may get to know them later and the law will not shut out such a claimant and such evidence when he finally discovers the person to be named as third parties but pleadings must adequately lay such a foundation. That is what is lacking in this case. The trial judge was therefore right in holding that there was no publication as required by law. Several authorities were cited by all the parties for and against the positions taken. The trial judge relied heavily on AJAKAIYE VS. OKANDEJI supra and ANATE VS. SANUSI supra which held that a claimant must plead publication to a named and identifiable third party. The third party ? PW2 was not named nor identified in the pleadings and that was the rationale for the claim being dismissed. Indeed, a plethora of authorities are on the side of the trial Court with just a few not being so forward on the issue of identifying and naming the third party. The third party is the most important factor in establishing defamation because it is the opinion of the third party upon publication that is relevant. Publication becomes complete only when it has been published to a named third party.
The question whether any party was misled by the pleadings does not take away the burden of proof placed on the appellant by law to prove that there was a publication. The crux of the matter here is whether the Appellant was duty bound to plead the identity of the third party. The Appellant agreed that the apex Court in the case of AJAKAIYE VS. OKANDEJI supra (relied on by the trial Court) decided that the third party or person to any material was published should be specifically named. The same decision was relied upon in several decisions of the Court. In the case of ANATE VS. SANUSI supra, the claimant did not plead publication at all. What several other authorities say and consider as proof of publication is that the material be published to a named or identified party, see GIWA VS. AJAYI supra; NEPA VS. INAMETI SUPRA; NSIRIM VS. NSIRIM (1990) 3 NWLR (PT. 128) 255 and SULEIMAN VS. ADAMU supra. That being the requirement of law, the trial judge was therefore right in finding that the Appellant failed to plead the essential aspect of publication.
The issue is beyond the admission that the 2nd Respondent in its Newspaper published the disclaimer, publication is beyond the writing of the alleged material, publication is that of a third party coming into awareness and the material causing the third party to form an adverse opinion of he who was written about.
The trial judge went further to proffer an opinion and held that but for the lack of pleadings, the claim would have succeeded. The question is on what could the claim succeed? The offending material is the normal and ordinary disclaimer-Exhibit 2 published in Punch Newspaper and which states thus:
The authorities of the University of Uyo wish to inform the entire public that the person whose photograph appears below is no longer in the employ of the university of Uyo:
Dr. Inih A. Ebong
Any body who deals with him on behalf of the University of Uyo does so at his own risk.
(SGD)
P.J. EFFIONG
REGISTRAR/SECRETARY TO COUNCIL.”
A disclaimer without more cannot be defamatory except if it contains statements beyond a disclaimer, some acidic words which could hurt. The Appellant in that case must go beyond the ordinary duty to set forth in his pleadings the defamatory sense which he attributes to the publication. The innuendo set out by the Appellant was not distilled from the disclaimer but from other sources. The Appellant was duty bound to show how a simple disclaimer defamed him.
The 1st Respondent is entitled to the defence of justification and qualified privilege. It was established in evidence that the Appellant had few months before the publication left his employment with the University, so it was true he was no longer in the employment of the University and the University owed the public a duty in giving such notification to avoid any misrepresentation and for the public to know that in dealing with the Appellant, it should not be seen or assumed that the Appellant was representing the University. The 1st Respondent did not deny the sponsorship of the printing of the disclaimer nor did the 2nd Respondent deny printing same and the truth of the statement is affirmed. An offensive article should be one that disparages or exposes the party to ridicule, hatred, contempt fear, disdain or disesteem by third parties towards the claimant, thereby making third parties to form a negative impression of the claimant, the apex Court in MR. JUSTICE SYLVESTER ONU VS. DAN AGBESE & ANOR. (1985) LPELR-2698 (SC) and recently in the case of OLOGE & ORS. VS. NEW AFRICA HOLDINGS LTD. (2013) LPELR-20181 (SC) held as follows:
“A defamatory statement may be defined as a statement which tends: (a) to lower the claimant in the estimation of right thinking members of society generally, or (b) to expose him to hatred, contempt or ridicule, or (c) to cause other persons to show or avoid him, or (d) to discredit him in his office, trade or profession, or (e) to injure his financial credit. See SIM VS. STRETCH (1936) 2 All ER 1237; GUARDIAN NEWS-PAPERS LTD. VS. AJEH (2005) 12 NWLR (PT. 938) 205.”
In assessing, the words in a publication, the Court will reject any opinion that can only emerge as the product of some strained or forced and unreasonably interpretation. Usually, the Court will construe the words according to its fair and natural meaning which would be given by the ordinary intelligence and not any unusual meaning. Looking at Exhibit 2, the ordinary meaning of the words therein do not conjure up any defamatory meaning as alleged, see ENTERPRISE BANK LIMITED VS. OLAWALE AMAO (2014) LPELR-22094.
The disclaimer cannot in any qualify as any of the above listed situations in the quotation above. I do not see how the alleged innuendos listed by the Appellant at paragraph 8 of the Amended Statement of Claim can be read into the publication – Exhibit 2 and for clarity; I reproduce the innuendos listed by the Appellant thus:
‘By the aforesaid words, in their ordinary and natural meanings and innuendos and/or insinuations, alternatively by reason of the facts hereafter set out, the Defendants meant and were understood to mean:
a. That the Plaintiff is no longer in the employ of the 1st Defendant.
b. That the Plaintiff is an imposter and was/is carrying on illegal unauthorized, and fraudulent business and transactions in the name and for and on behalf of the 1st Defendant with unsuspecting members of the public.
c. That the Plaintiff is a fraudulent and a dupe, a hoodlum, a cultist, an arsonist, a murderer, and a crook, not fit to remain in the University system.
d.That the Plaintiff is a sex maniac and engages in sexual harassment of female students.
e. That the Plaintiff engages in ‘anti-social clandestine activities’ and had a hand in throwing petrol bombs in the campus of the 1st Defendant in an attempt ‘to burn down’ the examination and the records Units of the 1st Defendant.
f. That the Plaintiff is a ‘victim’ and ‘casualty’ of the purported sanitation exercise carried out by the 1st Defendant and ‘had a hand’ in the murder of one Asuquo Edighienyong on April 7, 2002.
g. That the Plaintiff connived with students to forge certificates and NYSC Call-up letters.
h. That being a hoodlum, a cultist, a fraudster, and a crook, the Plaintiff is not fit to associate himself with or to be associated with by decent and right thinking members of the society.
i. That the plaintiff is a public risk and liability and should be shunned and avoided by the entire public.”
j. That the plaintiff is a person non grata, that his appointment with the 1st Defendant has been terminated for his ‘anti-social clandestine activities,’ and that he should be shunned and avoided by decent and right thinking members of the society.
The Appellant gave a long list of grounds upon which the innuendos supposedly arose from the publication. It is settled and trite that whatever may be the disparaging words in the publication, the material must be one that comes from the publication and not what one thinks or speculates as arising from other transactions that might have led to the publication. I see the Appellant falling into error in the manner he imported matters not mentioned in the publication. Whatever might have been the issues between the parties, the claim is one for defamation from a publication. The offensive material must come from the publication and no other. If there were other materials, they were not pleaded as other sources or materials wherein the Appellant was defamed and therefore the Appellant failed to do the needful, publication was not proved. The paragraphs relevant to the claim in defamation are paragraph 7 and 11 of the Amended statement of claim which do not include other written materials, Exhibit 31 and 32 cannot by any stretch of imagination be documents that gave rise to defamation. There is no correlation whatsoever and they cannot be read into to Exhibit 2. Any evidence of other materials therefore cannot be evidence here because there are no pleaded facts necessary to ground its admission and reliance by the trial Court in its judgment. The trial Court was wrong to conclude that the publication was libelous because of extraneous materials. The obiter was unnecessary and unhelpful to the Appellant. The Appellant failed to prove libel and the trial judge should have simply found so.
The Appellant complained that the trial Court did not evaluate evidence and that there is conflict in the conclusions of the trial judge which he asserted occasioned a miscarriage of justice. I agree that a Court considers the totality of pleadings in determining a claim but when considering whether a particular claim was proved by evidence, particularly libel, the law is settled that certain elements must be proved. Publication is a fundamental element in a claim of libel. It therefore goes beyond pleadings; publication must be established because damages arise not from the opinion of the claimant but of the third party. Unless publication to an identified third party is proved, the claim must collapse and no need for considering the totality of pleadings.
On alleged failure to evaluate evidence, the law is settled that a party making such assertion must specifically identify the piece of evidence not evaluated. This, the Appellant failed to do. The application of the decision in AJAKAIYE VS. OKANDEJI supra cannot be equated with failure to evaluate evidence. It was in the process of evaluating evidence that the fact of whether the evidence of PW2 should be considered arose. It was found that because it was not backed by pleadings and in defamation, publication is a condition precedent. The trial Court after a thorough consideration of the pleadings and evidence had this to say in the obiter:
‘if this Court had not come to the above conclusion, it is the view of this Court that, given the facts and circumstances very well marshalled in the further Amended Statement of claim and ably articulated by the Plaintiff and PW2 in this case which facts and circumstances the Defendants, particularly the 1st Defendant has not been able to assail or disprove, the Plaintiff ought to have succeeded certainly against the 1st Defendant in his claims as the words or imputations and meaning ascribed thereto by PW2, which I hold in view of the his standing, is a right thinking member of the society – DUMBO VS. IDUGBOE (1983) NSCC 22 @ 33.’
The question therefore that arises is, if the trial Court did not consider or evaluated evidence, could it have made the above quoted statement? The appellant cannot in one breath applaud the trial Court for the obiter and turn round on the basis of the same statement submits that the trial Court did not evaluate evidence. Failure to identify the piece of evidence not evaluated defeats the complaint, see AKANMODE VS. DINO (2008) LPELR-8405 which held thus:
“The duty is on the Appellants who raised the issue of improper assessment/evaluation of evidence to identify or specify the evidence not properly assessed/evaluated and to show that if the error complained of had been corrected the conclusion would have been different and in their favour. See: THE STATE VS. BAKO YUSUF & ANOR. [2007] All FWLR (PT. 377) 1001 @ 1010-1011.”
AndOKAFOR VS. EFFIONG (2017) LPELR-42699 (CA) wherein I said:
“…An Appellant who therefore relies on wrongful evaluation of evidence to set aside a judgment, has the duty to identify the evidence improperly or not evaluated and to show convincingly that if the error complained of had been corrected, the conclusion reached would have been different and in his favor, seeNKEBISI VS. THE STATE (2010) 5 NCC 84 @ 104; SIRAJO VS. THE STATE (2014) LPELR-23608 (CA).”
However, once the conditions are fulfilled, an appellate Court can interfere by re-evaluating the evidence not properly evaluated or evidence not evaluated at all by the trial Court in order to do justice. The Appellant failed to identify the evidence not evaluated, therefore, this Court cannot accede to Appellant’s plea to re evaluate the evidence.
The reason for dismissing the claim was not because the evidence of the witness was contradicted but because there was no foundation for his evidence in the pleadings. The trial Court could have rejected the evidence or struck it out since it had no foundation in the pleadings.
On the whole therefore, having resolved the issues against the Appellant, the appeal is unmeritorious and is hereby dismissed. The judgment of the trial Court
delivered on the 8th day Of May, 2017 is hereby affirmed.
I make no order as to cost.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the rare privilege to read, in draft, the leading judgment delivered by my learned brother; Yargata Byenchit Nimpar, JCA. I endorse, in toto, the reasoning and conclusion in it. l too penalise the appeal with a deserved dismissal. I abide by the consequential orders decreed in the leading judgment.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the advantage of reading in draft the lead judgment of my learned brother Yargata B. Nimpar, JCA, just delivered. I agree that the third party is the most important factor in establishing defamation as publication becomes complete only when it has been published to a third party.
In the result, the appeal is bereft of any merit and it is hereby dismissed. I abide with the consequential orders made in the lead judgment.
Appearances:
Nsikak Effiong, Esq. with him, Edidiong I. Ekong, Esq.For Appellant(s)
Fidelis A. Itehsi, Esq. with him, A. C. Ohia, Esq., for 1st Respondent.
Innih Archibong, Esq. for 2nd RespondentFor Respondent(s)
