DR O.A. EKANEM v. MR. A. A. AKPAN & ORS
(2018)LCN/12057(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of January, 2018
CA/C/296/2011
RATIO
COURT AND PROCEDURE: WHERE THE ENTIRE APPEAL IS PREDICATED UPON ISSUES OF FACT
“Indeed, it is trite, the fact that the Respondents have failed to file a brief notwithstanding, the Appellant is under a duty to argue and establish his case on the strength thereof and not necessarily on the weakness of the defense. See MANI VS SHANONO [2006] 4 NWLR [Pt. 969] 132; AGBI VS. OGBEH [2006] 11 NWLR [Pt. 990] 65; LONGE VS. FBN PLC [2006] 3 NWLR [Pt. 967] 228; AUDU VS. GUTA [2004] [Pt. 864] 463; WARIGBELEGHA VS. OWERRE [2011] LPELR 4454 [CA]. It was equally a settled doctrine, that where the entire appeal is predicated upon issues of fact, and there is nothing from the records of the Court below to show that the findings thereof were erroneous [as in the instant case], then the appellate Court has an onerous duty to dismiss the appeal. See ADIO VS. STATE [1986] 2 NWLR [Pt. 24] 581 @ 589; ONYEJEKWE VS. STATE [1992] 4 SCR [Pt. 19]; [1992] 3 NWLR [Pt. 230] 444; UKUT VS. STATE [1995] 9 NWLR [Pt. 420] 392; [1995] LPELR-3351 [SC].” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
DR O.A. EKANEM Appellant(s)
AND
1. MR. A. A. AKPAN
2. MR.OKON B. EKPO
3. EVANGELIST DANIEL E. EYO Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.(Delivering the Leading Judgment):
The instant appeal is against the judgment of the Akwa Ibom State High Court delivered on May 3, 2011 in suit No. HU/404/2005. By the said decision, the Court below coram; Joy Unwana, J., dismissed the suit with costs against the Appellant.
BACKGROUND FACTS
The suit was instituted by the Appellant vide a writ of summons on December 5, 2005 in the Court below. By the Amended Statement of claim thereof, the Appellant claimed against the Respondents jointly and severally the following reliefs:
17. N5 million damages for libel written and published by the defendants to the Honourable Speaker, State House of Assembly, the Deputy Chief Whip; Chairman, Committee of Information, Akwa Ibom State House of Assembly on Committee on Public Petition, Justice and Human Rights, and the Public Complaints Commission on 15th September.
(1) An injunction restraining the Defendants whether by themselves or by their agents, servants or otherwise, publishing or causing to be written or published, the said or any similar words defamatory of the plaintiff.
On their part thereof, by their Amended Statement of Defence, filed on 16/3/07, the Respondents denied the Appellant’s claim and equally pleaded thus:
10. The defendants state that they shall plead justification in respect of the content of the document complained of by the plaintiff and shall lead evidence to show that the plaintiff;
a) has abused his public office as Permanent Secretary.
b) had previously abused his public office as Clerk of the Akwa Ibom State House of Assembly in the Year 2000, consequent upon which he was relieved of the public office of Clerk of the House.
11. Plaintiff is not entitled to any apology or damages arising from the publication of the said letter of 15th September, 2005.
12. Defendants plead all relevant documents and publications necessary to establish the defense of justification in this suit including official circulars, minutes of meetings, House of Assembly. etc, and shall rely on same.
Pleadings having been filed and served by the respective parties, the suit proceeded to trial. At the end of the trial, the Court below delivered the vexed judgment to the conclusive effect:
As earlier stated, the plaintiff failed to give evidence in rebuttal of the evidence of the defendants. Their evidence therefore remained incontroverted and must be acted upon by the Court.
In the circumstance, I hold that the defendants successfully established the plea of justification?
In the final analysis, thus, action fails and is accordingly dismissed. Cost of this action is assessed at N20,000 against the plaintiff in favour of the defendants.
The notice of appeal was filed on 22/07/2011 in the Court below. The appeal was duly entered on December 7, 2011. The Appellant’s brief of argument was filed on 23/5/2012 but deemed properly filed on 30/10/2013. The Respondents having failed to file their brief within the mandatory time limit allowed by the rules of Court, the Appellant was granted leave on 06/12/16 to argue the appeal on the Appellant’s brief of argument alone.
On 30/10/17, when the appeal came up for hearing, the Appellant adopted the argument contained in the said brief thereof and urged the Court to allow the appeal. Whereupon, the Court reserved judgment.
The Appellant’s brief spans a total of 23 pages. At pages 5 – 6 thereof, four issues have been couched for determination:
1. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN HOLDING THAT THE DEFENCE OF JUSTIFICATION AVAILED THE DEFENDANTS/RESPONDENTS FOR REASON THAT THE PLAINTIFF/APPELLANT FAILED TO GIVE EVIDENCE IN REBUTTAL OF THE UNCONTROVERTED EVIDENCE OF THE DEFENDANTS/RESPONDENTS. [GROUND ONE]
2. WHETHER THE LEARNED TRIAL JUDGE ERRED IN LAW BY NOT PROPERLY EVALUATING THE EVIDENTIAL AND/OR PROBATIVE VALUE OF THE WEEKEND PIONEER EXHIBIT 5 WHICH WAS NOT PLEADED BEING ONE OF THE MAIN PILLARS IN THE DEFENDANTS/RESPONDENTS PLEA OF JUSTIFICATION. [GROUND TWO].
3. WHETHER THE LEARNED TRIAL JUDGE ERRED IN LAW WHEN SHE HELD THAT THE FAILURE OF THE DEFENDANTS/RESPONDENTS TO JUSTIFY THE LAST CHARGE WILL NOT AUTOMATICALLY DEFEAT THE PLEAS OF JUSTIFICATION. [GROUND THREE].
4. WHETHER IN ALL CIRCUMSTANCES AND HAVING REGARDS TO THE PLEADINGS AND EVIDENCE IN THE CASE, THE JUDGMENT OF THE LEARNED TRIAL JUDGE IS AGAINST THE WEIGHT OF EVIDENCE. [GROUND FOUR].
The first issue is canvassed at pages 6 – 11 of the said brief, to the effect that the Court below misdirected itself in law when it concluded that the defence of justification availed the Respondents as a result of which the Appellant failed to give evidence in rebuttal of the uncontroverted evidence of the Respondents.
It is submitted, that the Respondents had virtually admitted all the materials relevant to the Appellant’s case, both in their pleadings and evidence at the Court below:
i) that there was a petition/publication [Exhibit 1];
ii) that the words complained of were published by the Respondents concerning the Appellant, thereby satisfying the ingredients needed to be proved to establish a case of libel.
See UGO VS. OKAFOR [1996] 3 NWLR [Pt. 438] 542; AFRICAN NEWSPAPERS LTD. VS. CIROMA [1996] NWLR [Pt. 423] 156 @ 163.
Further submitted, that to establish a plea of justification, the onus is on the defendant to prove that the defamatory implication is true. It is not the duty of the plaintiff to prove that the defamatory words are false. See JOSEPH OJEME VS. PRINCE MOMODU [1991] 1 NWLR [Pt. 323] 635; SALAWAL MOTORS HOUSE LTD. VS. HAJJI B. LAWAL [1999] 9 NWLR [Pt. 620] 629; DUMBO VS. DUGBOE [1983] ALL NLR 37 @ 58 et al.
It was contended, that the publication complained of in Exhibit 1 was unjustified, grossly exaggerated, and actuated by malice. See GATLEY ON LIBEL AND SLANDER 8TH EDITION, paragraph 1342 @ 552 – 553.
The Court is urged to resolve the first issue in favour of the Appellant.
The second issue is argued at pages 11 – 16 of the brief, to the effect that so far as Exhibit 5 was not specifically pleaded by the Respondents, the said Exhibit went to no issue, and was of no evidential value. See BUHARI VS. INEC [2009] 167 LRCN 1 @ 58, et al.
Further submitted, that there being no peg upon which to hang their plea of justification, the Court below was therefore wrong to hold that the defence of justification availed the Respondents.
The Court is urged to so hold and resolve the second issue in favour of the Appellant.
The third issue is argued at pages 16 – 17 of the brief, to the effect that Section 16 of the Defamation Law of Akwa Ibom State is inapplicable and irrelevant in the instant case. That, there is no nexus between the publication complained of in Exhibit 1 and the publication in Exhibit 5.
The Court is urged to so hold, and resolve the third issue in favour of the Appellant.
The fourth issue is postulated at pages 17 – 19 of the brief, to the effect that the Court below was in grave error when it not only failed to properly evaluate the evidence before it, but also did not follow the principle laid down in ODOFIN VS. MOGAJI [1978] 3 SC 9. See also GILBERT ONWUKA VS. MICHAEL EDIALA [1989] 1 NWLR [Pt. 96] 182, et al.
Further submitted, that the Court below has failed to properly consider and evaluate the totality of the Respondent’s and Appellant’s [evidence]. The Court is urged to resolve the fourth issue in favour of the Appellant.
Conclusively, the Court is urged to set aside the judgment of the Court below and allow the appeal.
Having accorded a critical, albeit dispassionate, consideration upon the nature and circumstances surrounding the appeal, the submissions of the Appellant contained in the brief of argument thereof vis-a-vis the record of appeal, I am inclined to adopt the Appellant’s four issues for the ultimate determination of the appeal.
ISSUE NO. 1
The first issue raises the very vexed question of whether or not the Court below was right in holding, as it did, that the defence of justification availed the Respondents for the reason that the Appellant failed to give evidence in rebuttal of the Respondents’ uncontroverted evidence thereon. The first issue is distilled from ground one of the notice of appeal.
It is the cardinal principle of libel in law, that there must be a publication of the libelous matter to a third party other than the person libeled. The reason being that a person’s reputation is not merely based on the good opinion he has of himself but the estimation in which other people hold him. See NSIRIM VS. NSIRIM [1990] 3 NWLR [Pt. 138] 285, @ 299 paragraph H per Belgore, JSC [as he then was]. Fundamentally, it is the reduction of the alleged libelous matter to writing and it is delivery to a third person other than the person injuriously affected thereby that is publication. As such, the name of the person to whom delivery of the libelous document was made must be pleaded. See NSIRIM VS. NSIRIM [supra] @ 297 – 298 per Obaseki, JSC.
Thus, against the backdrop of the foregoing, it is obvious that in order to succeed in action for defamation, a plaintiff must prove that the libel [or slander as the case may be] has been published and duly communicated to some other person than the plaintiff himself. See UGO VS. OKAFOR [1996] 3 NWLR [Pt. 438] 542 @ 560; OKPALA VS. UMEH [1997] 7 NWLR [Pt. 511] 95 @ 98; NEPA VS. INAMETI [2002] FWLR [Pt. 136] 1695; [2002] 11 NWLR [Pt. 778] 397.
Broadly speaking, the term defamation has been defined as ?a statement which if published of and concerning a person, is calculated to lower him in the estimation of right thinking persons 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. See THE SKETCH PUBLISHING CO. LTD. VS. ALH. AZEEZ A. AJAGBENRO KEREFI [1989] 1 NWLR [Pt. 100] 678.
In the instant case, the findings of the Court below at page 24 of the record are that:
From the totality of the pleadings, the defendants admitted
1) The publication of Exhibit 1, the libelous document
2) that the publication referred to the plaintiff.
3) That the publication conveyed defamatory meaning.
4) That the statement was defamatory of the plaintiff.
Arguably, the foregoing, the plaintiff had discharged the burden placed on him to establish his claim of libel.
After an extensive appraisal of the pleadings vis–vis the evidence adduced at the trial [pages 241-249 of the Record], the Court below came to the conclusion [at page 249 of the record]:
As earlier stated, the plaintiff failed to give evidence in rebuttal of the evidence of the defendants. Their evidence therefore remained incontroverted and must be acted upon by the Court.
In the circumstance, I hold that the defendants successfully established the plea of justification.
Against the backdrop of the pleadings and evidence on record, there is every cogent reason for me to hold that the above findings by the Court below, to the conclusive effect that ‘the defendants successfully established the plea of justification,’ is cogent and duly supported by the evidence on record.
It is not in doubt, that by paragraph 10 of the Amended Statement of Defence thereof, the Respondents had averred; The defendants state that they shall plead justification in respect of the content of the document complained of by the plaintiff and shall lead evidence to show that the plaintiff,
a) has abused his public office as Permanent Secretary
b) had previously abused his public office as Clerk of the Akwa Ibom State House of Assembly in the Year 2000, consequent upon which he was relieved of the public office of the clerk of the house.
In the said paragraph 10 of the Amended Statement of Defence thereof, the Respondents have pleaded justification and equally alleged that the Appellant had no reputation.
Instructively, where a defendant sets up the defence of justification for libel, as in the instant case, the probative burden on the plaintiff is lessened to some extent. A plea of justification invariably implies [i] an admission that the matter complained of was published by the defendant; and [ii] that the publication was true. Thus, the onus is on the defendant to prove the truth of his publication. If the publication is true, the defendant cannot be mauled in damages for publishing what is true, as damages in defamation can only be inflicted on a defendant if he published a false matter. This is indeed the very reason why in cases of defamation the pleading must allege that the defendant ‘falsely and maliciously, published of and concerning the plaintiff’.
Conversely, if the publication turns out to be false, then the law imputes malice. See OJUKWU VS. NNORUKA [2000] 1 NWLR [Pt. 641] 349; [1999] LPELR- 5683 [CA], per UBAEZONU, JCA @ 24 – 25 paragraphs E – B.
By virtue of paragraph 6 of the Amended Statement of Claim of the Appellant, the gist of the libelous document [Exhibit 1] are that-
1) the plaintiff aided the stealing of wood/construction materials, property of Mbierebe Akpawat Village Council, Ibesikpo Asutan LGA.
2) Malicious damage to community property and village council by their organized and sponsored thugs.
3) Recruitment, maintenance and sponsorship of thugs to orchestrate acts which cause breach of the peace.
4) Criminal use of the name of the Executive Governor of Akwa Ibom State for their selfish pecuniary interest to intimidate, harass and obstruct the peaceful and orderly administration of Mbierebe Akpawat.
The Respondents adduced evidence vide DW1,DW2, DW3 and DW4 to substantiate these allegation; DW1 [3rd Respondent] in particular, testified confirming that there were road construction materials left by RCC in the village and that when one Dr. Johnson, the Appellant’s cousin, sent people to remove the materials, they were arrested by the village youths and handed over to the Police. According to DW1:
The Police Divisional Headquarter, Ibesikpo Asutan effected a 2nd arrest of the plaintiff, his nephew and the workers.
The plaintiff told the police that granite belonged to his nephew and asked them to release his nephew to him and the police did so. His nephew, workers and drivers were all released by the plaintiff on bail.
The police did not release the people to the plaintiff and the plaintiff identified Elder Paul Inyang who later signed as surety for the people arrested.
The plaintiff aided in stealing of granite belonging to Mbierebe Akpawat village. He told the police that the granite belonged to his nephew Dr. Samuel Johnson.
Regarding malicious damage done to the property belonging to the village, the DW1 testified thus:
The plaintiff maliciously damaged property, belonging to the village through the boys he hired when the boys stormed the village council hall during the sitting of the council with the slogan ‘DON’T YOU HEAR DR. SAID THERE IS NO VILLAGE COUNCIL’ and threw stones and damaged window of the village hall and the chiefs and elders ran away.
The plaintiff recruits things [sic]. He gave more cycles to the youths, and fueled them from his filling station and they went round harassing people especially during the sitting of the village council.
These youths arrested people including one Utitofon Ita King and alleged that she stole fowl, stripped her naked, beat her up and her photograph was taken and sold to members of the public in the village. The girl later reported the matter to the police and some of these boys were arrested and the plaintiff was informed and, he came down and promised the father of the girl money so as not to allow the girl to go to Court.
He told the boys in prison custody that he was going to use his position to facilitate their release which he did and the case was strike [sic] out and the boys released.
On his part, the DW2 [1st Respondent] testified inter alia:
The plaintiff is not entitled to the reliefs he is seeking in this case. It is proper for us to have written the petition because the plaintiff caused a lot of trouble in the village. At first, he got me arrested by the police on the complaint that I stole granite belonging to RCC. At that time, I was the Chairman of the Mbierebe Akpawat Village Council. I was detained in the cell for one week and from there I was taken to Court. In Court, I was asked to go, that I did nothing. I was arrested again and taken to Ikot Akpan Abia, on the complaint that I used a gun with other council members to steal the car of the plaintiff’s brother. I was later released when the petitioner and the car could not be found. I went to Court and obtained a Court order?
The plaintiff’s allegation that by our letter of 15th September, he is shown as a person who is not fit to hold public office is true. He is not fit to hold public office.
The plaintiff causes a lot of trouble. The plaintiff has thugs. If the Court wants, I can prove it. It was plaintiff’s thugs that took the picture of naked girl after stripping her naked. It was his thugs who beat up policemen and matched them and because of how the policemen beaten the plaintiff was arrested and taken to Ikot Akpan Abia. As a public officer, the plaintiff should not be involved in such thugs. The plaintiff is not worthy to be an official of Akwa Ibom State. By his status, he should have been the one to unite the village and not to arrest members of the village council.
If the plaintiff has suffered injury, he should come and plead with me as an elderly person whom he caused to be put in the cell. The plaintiff is not entitled to award of N5 million damages.
The DW3, Essien Okon Eyo, the family head of Nung Esu, claimed to be 101 years old. He said he knew and loved the plaintiff very much. The testimony of the DW3 corroborates that of DW1 and DW2 regarding the Appellant’s quarrel with Respondents. The DW3 testified that the Appellant is not entitled to N5 million ‘because he is not a good man in Mbierebe Akpawat. According to him:
Since I was born in Mbierebe Akpawat, nobody has ever locked up the Chairman and Secretary of the village council in the cell’
The plaintiff has thugs who work for him. They use to cause problem in the village. On one occasion they came to the village hall where they holding a meeting, his thugs came, threw stones and we all ran away. The plaintiff has not brought peace to the village. Uptil today, there is a lot of strife and quarrelling in the village.
I urge the Court to advise the plaintiff.
The DW4, in the person of Engr. Ubong Friday Okono, testified on the genesis of the crisis in the village. According to DW4:
During the administration of the defendants, the village was good until when RCC came in to the village. They came to construct the road and left granite behind. One Dr. Johnson offered to buy 220 plots of land at the cost of N4 million. Dr. Johnson is the plaintiff?s brother and he eventually bought the plots. He also offered to buy the granite because security men were kept to secure the granite so that people do not take it. Dr. Johnson did not however buy the granite. Dr. Johnson brought a document alleging that he had bought the granite from the RCC ‘… and …’ brought tipper to remove the granite. The youth arose and interrupted the tipper and took it to the police station. Problem started from that point.
It was the finding of the Court below in the vexed judgment, that while the Respondents failed to lead evidence to show how the Appellant abused his public office as Permanent Secretary, DW4 testified that the Appellant was suspended for misappropriation of N8,000,000.00 as Clerk of the House of Assembly in the Year 2000, which was reported in the Weekend Pioneer. The Certified True Copy of the Pioneer Newspaper publication was tendered vide the DW5, Mr. John N. Etukudo, a Senior Personnel Officer with the Akwa Ibom State Newspaper Corporation.
The Court below held:
I have read Exhibit 5. It contains a story titled ‘SUSPENDED CLERK FACES MORE TROUBLE’.
This story confirmed the evidence of DW4. In the reply to Statement of Defence, the plaintiff did not specifically deny this weighty allegation and neither did he offer any evidence in rebuttal as he is entitled to do so. See PETDO VS. ORAFIDIYA [1975] 1; NIGERIA MONTHLY LAW REPORT 336.
The plaintiff having failed to give any evidence in rebuttal, the evidence of the defendants remained unchallenged and is accordingly accepted by this Court.
See page 248 of the Record.
In my considered view, the above finding of the Court below is unassailable and duly supported by the pleadings and evidence on record.
In the circumstance, the first issue is answered in the positive and accordingly resolved against the Appellant.
ISSUE NO. 2
The second issue raises the question of whether or not the Court below erred in law by not properly evaluating the evidential and or probative value of the WEEKEND PIONEER [Exhibit 5] which was not pleaded being one of the main pillars in the Respondents’ plea of justification. The second issue is distilled from ground two of the Notice of Appeal.
It is the evidence in chief of the DW4 that:
I am surprised that the plaintiff complained that the letter sent to the house defamed him because his name has been exposed before.
It is not the letter of the village that reduced his reputation. There was already in existence, a letter from the House of Assembly that reduced his reputation.
Continuing further, the DW4 stated [page 192]:
The House of Assembly defamed his name in the Pioneer publication in 2000.
At this point in time, the Appellants counsel objected to the admissibility of the Pioneer Newspaper in question. Both counsel Miss Inwang and Umoh argued extensively on the point. And on 07/05/10, the Court below delivered a considered ruling to the conclusive effect:
This means that for a newspaper to be admissible, it must be produced from proper custody or where the opening party raises the objection.
In the circumstance, I hold the Pioneer Newspaper not having been produced from proper custody is inadmissible.
Accordingly, the Pioneer Newspaper of April 10, 2000 is hereby admitted and marked REJECTED 1.
However, on 13/07/2010, the DW5, John N. Etukudo, a Senior Personnel Officer 1 of the Akwa Ibom State Newspaper Corporation testified:
”I am here as a result of a subpoena served on us to produce our Pioneer Newspaper publication. Pioneer Newspaper has been in publication for about 20 years now. In the Year 2000, they were in publication. If I see a certify [sic] true copy of the Pioneer Newspaper, I will recognize it [Witness is shown the document]. This is a certify [sic] true copy of Pioneer Newspaper of Friday March 31.” Sunday April 2nd, 2000 titled WEEKEND PIONEER VOL. 3 NO. 45.
Again, Miss Inwang, objected on the ground that the exhibit was not pleaded. However, Mr. Umoh countered by postulating that the document sought to be tendered is a publication. We had pleaded publication. The rule of admissibility is that it must be relevant. Thereupon, the Court below ruled:
The publication sought to be tendered is related to the tenure of the plaintiff as the Clerk of the House of Assembly. Consequently, the publication is relevant.
In view of the foregoing, the objection of the plaintiff’s counsel is overruled. The Certify [sic] True Copy of Weekend Pioneer of March 31 – April 2, 2000 be and is hereby admitted as Exhibits.
Thus, against the background of the foregoing postulation, I am of the considered view, that the Court below was absolutely right in finding, as it did, at page 248, lines 17 – 24, of the Record:
I have read Exhibit 5. It contains a story titled ”SUSPENDED CLERK FACES MORE TROUBLE”. This story confirmed the evidence of DW4.
In the Reply to the Statement of Defence, the plaintiff did not specifically deny the wighty [sic] allegation and neither did he offer any evidence in rebuttal as he is entitled to do. See PETDO VS. ORAFIDIYA [1975] 1 NIGERIA MONTHLY LAW REPORT 336 referred to by the Learned Author [Law Practice and Procedure] paragraph 6.14 page 180.
The plaintiff having failed to give any evidence in rebuttal, the evidence of the defendants remained unchallenged and is accordingly accepted by this Court.
In the circumstance, I am unable to uphold the Appellant’s argument that the Court below erred in law by not properly evaluating the evidential and/or probative value of Exhibit 5. Thus, the second issue ought to be and it is hereby resolved against the Appellant.
ISSUE NO. 3
The 3rd issue raises the question of whether or not the Court below erred in law when it held that the failure of the Respondents to justify the last charge will not automatically defeat the plea of justification. The 3rd issue is distilled from ground three of the notice of appeal.
As aptly found by the Court below, [page 249 of the Record] the contention of the learned counsel Miss Inwang that the Respondents had to prove that the Appellant was arrested in connection with the stealing saga, and found guilty of commission of professional misconduct by the Akwa Ibom State Civil Service Commission, is of no basis. This is so, because the words complained of were defamatory in their natural meaning, and none of the [four] charges against the Appellant made these assertions material facts. Thus, not unexpectedly, the Court below came to the most inevitable conclusion:
Having accepted the evidence adduced by the defendants in justification of three of the four main charges, I do not see what more impact the fourth charge would have had on the reputation of the plaintiff.
As earlier stated, the plaintiff failed to give evidence in rebuttal of the evidence of the defendants. Their evidence therefore remained incontroverted and must be acted upon by the Court.
In the circumstance, I hold that the defendants successfully established the plea of justification.
In the circumstance, the 3rd issue is hereby resolved against the Appellant.
ISSUE NO. 4
The 4th and last issue raises the question of whether or not in all circumstances and having regard to the pleadings and evidence in the case, the judgment of the Court below is against the weight of evidence. The 4th issue is distilled from ground four of the notice of appeal.
Instructively, it is a well settled doctrine, that whenever it is alleged that a judgment is against the weight of evidence, what it denotes is that [a] the judgment of the trial or Court below cannot be supported by the weight of the evidence adduced by the successful party which the lower Court either wrongly accepted, or that the inference drawn or conclusion reached by the Court based on the accepted evidence or cannot be justified; [b] there is no evidence, which if accepted should support the findings of the trial Court; or [c] when the evidence adduced by the appellant is weighed against that adduced by the respondent, the judgment given in favour of the respondent is against the whole gamut of evidence adduced before the trial Court. See ANYAOKE VS. ADI [1986] 3 NWLR [Pt. 31] 731; BALOGUN VS. EOCB [NIG.] LTD. [2007] 5 NWLR [Pt. 1028] 584 @ 601 paragraphs C – E [CA]; STB LTD. VS. ANUMINU [2008] ALL FWLR [Pt. 399] 405 – 431 paragraph C – F [CA].
In the instant case, it is obvious from the foregoing postulations on the 1st, 2nd and 3rd issues, that the judgment of the Court below could not by any stretch of imagination be said to be against the weight of evidence adduced at the trial. And I so hold. In the circumstance, the 4th issue is hereby resolved against the Appellant.
Indeed, it is trite, the fact that the Respondents have failed to file a brief notwithstanding, the Appellant is under a duty to argue and establish his case on the strength thereof and not necessarily on the weakness of the defense. See MANI VS SHANONO [2006] 4 NWLR [Pt. 969] 132; AGBI VS. OGBEH [2006] 11 NWLR [Pt. 990] 65; LONGE VS. FBN PLC [2006] 3 NWLR [Pt. 967] 228; AUDU VS. GUTA [2004] [Pt. 864] 463; WARIGBELEGHA VS. OWERRE [2011] LPELR 4454 [CA].
It was equally a settled doctrine, that where the entire appeal is predicated upon issues of fact, and there is nothing from the records of the Court below to show that the findings thereof were erroneous [as in the instant case], then the appellate Court has an onerous duty to dismiss the appeal. See ADIO VS. STATE [1986] 2 NWLR [Pt. 24] 581 @ 589; ONYEJEKWE VS. STATE [1992] 4 SCR [Pt. 19]; [1992] 3 NWLR [Pt. 230] 444; UKUT VS. STATE [1995] 9 NWLR [Pt. 420] 392; [1995] LPELR-3351 [SC].
Hence, having effectively resolved all the four issues against the Appellant, there is no gain-saying the fact that the instant appeal grossly fails, and it is hereby dismissed by me. The judgment of the Akwa Ibom State High Court, delivered on May 3, 2011 in suit No. HU/404/2005, is hereby affirmed.
The Respondents shall be entitled to costs of N50,000.00, against the Appellant. However, before placing the very last dot to this judgment, I have deemed it expedient to reiterate the trite doctrine, that the judiciary has an onerous duty to preserve and uphold the sanctity of the rule of law despite all odds. As aptly asserted by the Supreme Court:
The judiciary cannot shirk its sacred responsibility to the nation to maintain the rule of law. It is both in the interest of the Government and all persons in Nigeria. The law should be even handed between the Government and the citizens.
See GOVERNOR OF LAGOS STATE VS. OJUKWU [1986] 1 NWLR [Pt. 18] 621, per Obaseki, JSC [of most blessed memory], in his notorious eloquent characteristics.
Recall the ever time honoured dictum of the House of Lords [now Supreme Court]:
In this country [England] amid the clash of arms, the laws are not silent. They speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecter of persons and stand between the subject and any attempted encroachment on his liberty by the executive, alert to see that any coerave action is justified in law.
See LIVERSIDGE VS. ANDERSON [1942] AC 206 @ 244, per Lord Aitken, that foremost fearless and erudite jurist of all time.
Incidentally, Lord Aitken’s landmark decision in LIVERSIDGE VS. ANDERSON [supra] was made during the notorious battle of Britain, a decisive air conflict between British and German forces during World War II [1939 – 1945]. It is trite that having brutally crushed France, Poland and Czechoslavia, the Germans had only to defeat the U.K. to win the war in Western Europe:
The battle began in July 1949 when 60 German Aircraft attacked ships in the English channel. On September 15, an enormous force of 1,300 German aircraft attacked London and Southampton. In cloudless skies, the air battle spread over the whole of Southern England and lasted all day. Britain?s victory made Germany realize it could not destroy the British air defense so the battle prompted Sir Winston Churchill’s famous tribute:
Never in the field of human conflict was so much owed by so many to so few.
See World Book: This day in History; Battle of Britain Day, Wikipedia.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the privilege of reading the draft of the lead judgment read by my learned brother, SAULAWA, JCA, and I agree with his reasoning and conclusion therein that there is no justifiable basis to interfere with the findings and conclusion of the learned trial Judge.
I equally dismiss the appeal while affirming the decision of the learned trial Judge. I abide bythe order as to costs made by Saulawa, JCA in the lead judgment.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother I.M.M SAULAWA, JCA.
Where the findings and conclusion of the trial judge accord with the evidence led by the parties and do not run contrary to the relevant extant applicable laws, there will be no justifiable basis for an appellate Court to interfere. For the fuller and more detailed reasoning in the lead judgment which I adopt, I equally find no merit in this appeal and I accordingly dismiss it.
I adopt the order of cost contained in the lead judgment.
Appearances:
Jane Obong (Mrs.) For Appellant(s)
Unrepresented For Respondent(s)
