DR. TAIWO OLORUNTOBA OJU v. PROF. WAHAB OLASUPO EGBEWOLE & ORS (2019)

DR. TAIWO OLORUNTOBA OJU v. PROF. WAHAB OLASUPO EGBEWOLE & ORS

(2019)LCN/13576(CA)

In The Court of Appeal of Nigeria

On Thursday, the 27th day of June, 2019

CA/IL/85/2018

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria

Between

DR. TAIWO OLORUNTOBA OJU Appellant(s)

AND

1. PROF. WAHAB OLASUPO EGBEWOLE
2. DR. LANRE TAJUDEEN AJIBADE
3. DR. BINTA FATIMA IBRAHIM
4. MRS. MARY ALABA YETUNDE LEWU
5. DR. USMAN ADEBIMPE RAHEEM
6. MR. ABUBAKAR SADIO KASUM Respondent(s)

RATIO

INGREDIENTS TO PROVE THE OFFENCE OF JURISDICTION

It is a trite fundamental doctrine reiterated in a plethora of formidable authorities, that in an action for defamation, akin to the instant case, the complainant has an onerous onus of proving certain ingredients
(a) The words complained of must have been written (published);
(b) The words must have an imputation of defamation;
(c) The words must refers to the complainant;
(d) The publication must be false;
(e) The complainant has the onus of establishing that he was the subject of the alleged libel; and
(f) It was the Respondent who published the defamatory words
See GUARDIAN NEWSPAPERS LTD VS AJEH (2001) 10 NWLR (Pt. 1256) 574 @ 588 paragraphs E-G. PER SAULAWA, J.C.A.

WHETHER OR NOT A COURT CAN GIVE JUDGMENT OR MAKE AN ORDER AGAINST A PERSON WHO WOULD NOT BE AFFECTED BY ITS DECISION

This proposition is predicated upon the trite principle, that a Court cannot give judgment or make an order against a person who would be affected by its decision if such person was neither made a party nor accorded the opportunity of defending the suit. See PERM SEC MOW KWARA STATE VS. BALOGUN (1975) 5 SC 57 @ 59. (1956 ? 1984) DIGEST OF SUPREME COURT CASES VOLUME 4 @ 418; OLORIODE VS OYEBI (1984) 1 SCNLR 390 @ 406; (1956 ? 1984) DSC CASES 4 @ 48; OGBONDA VS. NKAN-GINIEME (2010) ALL FWLR (Pt. 502) 1034 @ 1061; AMUDA VS. AJOBO (1995) 7 NWLR (Pt. 406) 172 @ 182 Paragraphs A ? B. PER SAULAWA, J.C.A.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The present appeal is a natural fall-out of the judgment of the Kwara State High Court holden at Ilorin and delivered on May 22, 2018 in suit No. KWS/259/2013. By the judgment in question, the Court below, Coram I.B. Garba, J; struck out the Appellant?s case on the ground that there were ?no proper or necessary defendants? before the Court below.

BACKGROUND FACTS
The genesis of the instant appeal is traceable to September 4, 2013. That was the very date on which the Appellant deemed it expedient to institute the suit in question vide a writ of summons in the Court below against the present Respondents. By the 24 paragraphed statement of claim thereof, filed along with the writ of summons, the Appellant claimed against the Respondents, jointly and severally for:
(a) A declaration that the words complained of by the Claimant as published by the Defendants in Volume 2, No.1 of April 2013, Volume 2, No.2 of May 2013, Volume 2, No.3 of June 2013, Volume 2, No.4 of July 2013 and Volume 2, No.5 of August 2013 Editions of the “FALCONER” are

defamatory of the Claimant without any justification.
(b) A sum of Two Hundred Million Naira (N200,000,000.00) Only being general damages jointly and severally against the Defendants for the libel printed and published by the Defendants of and concerning the Claimant in Volume 2, No.1 of April 2013, Volume 2, No.2 of May 2013, Volume 2, No.3 of June 2013, Volume 2, No.4 of July 2013 and Volume 2, No.5 of August 2013 Editions of the “FALCONER”.
(c) 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 three successive editions of the “FALCONER” and in at least one national daily.
(d) An Order of perpetual injunction, restraining the Defendants from further publication of such or other words defamatory of claimant.

On 21/10/2013, Taofiq Alubarika Esq. of K. K. Eleja & Co. filed a memorandum of conditional appearance along with a statement of defence for the Respondents.
?
With pleadings having been filed and exchanged by the respective parties, the suit proceeded to trial. In an effort to prove the case thereof against the

Respondents, the Appellant called two witnesses who testified as CW1 and CW2. The Appellant equally testified as CW3.

Contrariwise, the Respondents deemed it expedient to rest their case upon that of the Appellant, thus opted not to call any witness in the defence thereof.

Consequent upon the adoption of the parties? respective final Written Addresses, the Court below proceeded to deliver the vexed judgment on the said May 22, 2018 to the following conclusive effect:
In the instant case, the claimant has not discharged the burden of establishing how the defendants are connected directly with the offending publications in the FALCONER within the con of the facts contained or available in the record of this Court.
In the absence of a counter claim from the defendants more than what the claimant pleaded and having failed to discharge the onus placed on him to establish how the defendants used the instrumentality of the FALCONER and the liberlons (Sic) publication contained therein to vilify him, I am therefore not prepared to hold the defendants liable in defamation. Having found that no proper or necessary defendants, are before the

Court the consideration of any other issue(s) is therefore rendered otiose. Consequently, the suit is accordingly struck out.

The original notice of appeal was dated and filed on 01/06/2018 by the Appellant. The amended notice of appeal was filed on 19/03/19. It is predicated upon a total of four grounds, thereby urging upon the Court:
(1) To allow the appeal and set aside the judgment of the lower Court striking out the suit.
(2) To grant the reliefs sought by the claimant at the lower Court as laid out in the statement of claim.

The record of appeal was transmitted to this Court on 18/07/18. The Appellant?s brief of argument was filed on 19/03/19. Though regretably unpaginated, the brief actually spans a total of 26 pages. At page 4 of the said brief, two issues have been couched:
3.1 Whether having regard to the circumstances of the case, the pleadings and evidence on record, the alleged libel by the Appellant against the Respondents was established to be entitled to the reliefs sought (Grounds 1 & 2).
3.2 Whether the Respondents are the proper or necessary parties to be sued for the Appellant to be entitled to the

reliefs, (Grounds 3 & 4).

The issue No.1 is argued at pages 5 ? 15 of the said brief. In a nutshell, the submission of the learned counsel is to the effect that the Appellant in this case has discharged the onus on him in establishing a case of libel by tendering Exhibits A1 ? A4, the FALCONER News Letter, where the defamatory words were published consistently for five consecutive months.

It is submitted, that the Court below clearly held that a reasonable cause of action had been disclosed by the Appellant and that Exhibits A1 ? A4 are indeed libelous and vilifying. See pages 388 line and 389 first line of the record.

However, according to the learned counsel, the Court below made some erroneous findings not born out of the totality of the evidence adduced, that the Appellant has not discharged the burden establishing how the Respondents were connected with the offending publications in the FALCONER.

It was argued, that it is evidentially clear (i) the Respondents are the purported ?ASUU Unilorin Exco? which was not recognized by the union as shown in Exhibits E, E1, E2, F, H and J; (ii) that they had been

publishing antagonistic materials against the union (ASUU) and its recognized representatives in Unilorin using the Union?s name and logo, as shown in Exhibit G (pages 88 ? 89 of the Record); (iii) that their purported executive had been dissolved by the National Industrial Court; and that (iv) thereafter they resorted to publishing Exhibits A1 ? A5, which are antagonistic to the Appellant, to the union he represents, and to the judge of the NIC that ruled against the Respondents. Thus, the Court is urged to so hold that the Respondents were liable for the defamatory imputations in the various editions of the FALCONER.

Appellant?s learned counsel cited and relied upon the case of AKINBISADE VS. STATE (2006) 17 NWLR (Pt. 1007) 184 @ 201 paragraphs G?H, to the effect that documentary evidence in most cases is more reliable than oral (parole) evidence. See also TRADITIONAL VS. FAWU (2001) 17 NWLR (Pt. 742) 293 @ 330 paragraphs B?C.
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It was posited that in the instant case, not all the evidence elicited under cross examination of the Respondents are on the facts pleaded by the Appellant by way of defence to

the action. As such, it is argued that the Court below erred in law in relying and making a finding of fact on such evidence in support of the Respondents case. See TRADITIONAL VS. FAWU (2001) 17 NWLR (Pt. 742) 293 @ 330 paragraphs B ? C; AKOMOLAFE VS. GUARDIAN PRESS LTD (PRINTERS) (2010) ALL NWLR (Pt. 517) SC 773 @ 784 paragraphs D ? G. JOKAS INT?L LTD VS. UBA PLC (2018) LPELR 43645.

Further posited, that the failure of the Respondents to lead credible evidence in support of their pleadings leaves the Court below with no option than to act on the unchallenged oral and documentary evidence of the Appellant. See STB LTD VS. INTER DRILL NIG LTD (2007) ALL FWLR (Pt. 366) 756 @ 770 ? 771 paragraphs H ? A;

According to the Appellant?s learned counsel, the only evidence standing before the Court below is the Appellant?s evidence that the Respondents maligned him via Exhibits A1?A4 which said evidence remains unchallenged and uncontroverted. See OKONKWO VS. CCB (NIG) PLC (2003) 8 NWLR (Pt. 822) 347 @ 421 paragraph E; HILARY FARMS LTD VS. M/V MAHTRA (2007) 14 NWLR (Pt. 1054) 210 @ 237 paragraph G;

IBWA LTD VS. IMANO (NIG) LTD (2001) FWLR (Pt. 44) 425 @ 443 paragraph E.

In the whole, the Court is urged to resolve the issue No.1 in favour of the Appellant.

The issue No.2 is canvassed at pages 15 ? 24 of the brief. In the main, it is submitted that the Court below having so ruled on the preliminary objection that there was a cause of action, cannot at the same time in the latter part of the judgment hold otherwise.

Further submitted, that the issue of agency canvassed by the Respondents and wrongly upheld by the Court below, is grossly misconceived in that the term agency does not in any way relate to the Respondents in this case. See EDEM VS. CANON BALLS LTD (2005) ALL FWLR (Pt. 276) 693 SC @ 706 G?H; DANJUMA VS. SCC (NIG) LTD (2017) 6 NWLR (Pt. 175) CA @ 210?211 paragraphs H?A.

Allegedly, in the instant case, the Respondents cannot be held to be agents of ASUU. That the evidence before the Court points to the fact that the Respondents are self-styled executive parading themselves as ASUU. They were equally declared illegal by the National Industrial Court Ruling as stated in Exhibit H (pages 84?87 of the

Record).

It is contended, that the decision of the Court below that the right party was not before it and that the publication was not by the Respondents but ?by ASUU? is perverse and against the weight of oral and written evidence before the Court. See ALABI VS. STATE (2007) ALL FWLR (Pt. 376) CA 794 @ 805 B?C.

Further contended, that the Court below being aware of the certified and uncontroverted Ruling of the NIC, that the Respondents? group had been dissolved by the said NIC (Exhibit H), and that they were publicly disowned or expelled by ASUU (Exhibits E & F), ought not to have countenanced the Respondents as agents of ASUU. See UBA PLC VS. BTL IND LTD (2007) ALL FWLR (Pt. 352) 1615 @ 1684 F ? G.

It was posited, that the Court below had a duty to properly weigh the evidence adduced by both parties, ascribe due probative value thereto, and weigh same on an imaginary scale to see which side has the upper hand. See AKINTOLA VS. ADEGBITE (2007) ALL FWLR (Pt. 372) 1891 @ 1900 ? 1901 E ? F.

Finally submitted, that in the instant case, the Court below failed to evaluate the oral and documentary

evidence placed before it on the imaginary scale in arriving at the vexed decision. This Court is thus in a vintage position to consider and draw legitimate conclusions. See ALABI VS. STATE (Supra) @ 805 paragraphs C?D.

The Court is urged to resolve the issue No.2 in favour of the Appellant.

Conclusively, the Court is urged to allow the appeal, set aside the judgment of the Court below and grant the Appellant?s reliefs in the statement of claim, pursuant to Section 16 [?] of the Court of Appeal Act.

Contrariwise, the Respondents? exptant Amended brief of argument was settled by Hassan T. Fajimite Esq. on 25/4/2019. It spans a total of 20 pages. At page 3 of the said brief, a couple of issues have so far been raised, Viz:
(1) Considering the evidence elicited under cross-examination by the Respondents, whether relevant averments of the Statement of Defence have been deemed abandoned such that in law the Honourrable Court in law ought not to attach weight to the said evidence in the judgment? (Ground 2).
(2) Whether the lower Court was not right to have held that the failure of the Appellant to join the appropriate

parties to the suit did not deprive the Court the necessary jurisdiction to entitling the Appellant to a finding that the Respondent had been directly linked with the alleges offending publication FALCONER? (Ground 3).

Both issues have been extensively argued together at pages 4?18 of the said brief. In the main, it is submitted by the learned counsel, that the Court below was on a sound footing when it relied on the pieces of evidence extracted from the witness of the Appellant in arriving at its holding in the vexed judgment. See page 385 of the Record, paragraphs 12 & 24 statement of Defence at pages 115 and 116.

Reference was made to the Respondents? Final Address pages 272?273 of the Record paragraph 7.09 (i)?(xi), where at the Respondents summarized the various pieces of evidence elicited from the Appellant?s three witnesses during cross-examination by the Respondents counsel at the trial. According to the learned counsel, the aggregate of the Respondents? testimonies is noted in paragraphs 8, 9, 15, 16, 17, 18, 19, 21, 22, 23, 24 and 25 among others of the statement of defence. In essence, the said

testimonies allegedly support the averments in the said paragraphs, which are as potent as if they were adduced under examination in chief by the Respondents themselves. See AKOMOLAFE VS. GUARDIAN PRESS LTD (Supra).

It is contended, that the Appellant did not discharge the onus on him, as his case was riddled with conflicting and improbable evidence and testimonies. These types of testimonies amount to approbating and reprobating which the Courts have deprecated in strong terms. See AJIDE VS. KELANI (1985) 3 NWLR (Pt. 12) 248 @ 269 paragraphs C?E.

Furthermore, it is contended, that the reliance on the fact that the Court below stated that the Statement of Defence has been abandoned in this case is misconceived and read out of con by the Appellant. See AKINGBOYE VS. SALISU (1999) LPELR?6712 (CA).

Regarding Exhibits A?A4, it is submitted that it is not in doubt that the Appellant wanted the Court below to engage in sheer speculation or conjecture in order to find that the Appellant had established the vital ingredients of libel that the Respondents were the publishers of libelous Exhibits (A1?

A4). Therefore, the Court below was right not to engage in such speculation, since no Court of law has any duty to do so. See PLATEAU STATE VS. A.G. FEDERATION (2006) 3 NWLR (Pt. 967) 346 @ 420.

Thus argued, that neither the case of AKITI VS. THE PUNCH NIGERIA LIMITED (2009) 11 NWLR (Pt. 1152) 281 nor the excerpts from Gatley on Libel and Slander 12 Edition @ 215 avails the Appellant.

Regarding the question of joinder of necessary party, the Respondent postulated to the effect that the Court below was not wrong to have held after full trial and consideration of evidence before it, that the Appellant did not join the necessary party, who was the publisher of the offending ?FALCONER?. See CHIEF MAXI OKOLI VS. CHIEF VICTOR UMEH (2018) LPELR (26042) SC.

According to the Respondent, notwithstanding the decision of the Court below that the suit of Appellant disclosed a reasonable cause of action, the failure to join the proper or necessary party also rendered the proceeding in the suit an exercise in futility, hence the suit was struck out by the Court below. That decision is not only right in law, it is also not

perverse in the light of the foregoing postulations. See UWA VS. AKPABIO (2014) 2 (Pt. 11) MJSC 108 @ 126 paragraphs A?D.

Further postulated, that ASUU ILORIN is a juristic person with its Board of Trustees as established by Rule 13 of the Constitution and Code of Practice of ASUU (Exhibit 1). Therefore, the Respondents were merely Executive Officers of ASUU ILORIN, who were acting as agents of the Union. See AMADIUME VS. IBOK (2006) ALL FWLR (Pt. 321) 1247 @ 1264.

On the whole, the Court is urged to affirm the decision of the Court below and accordingly dismiss the appeal.

In reaction to the Respondents? brief, the Appellant filed a reply brief on 29/04/2019. It spans a total of 12 pages. By the said reply brief, the Appellant has conclusively postulated that the Respondents have neither attempted nor been able to challenge the evidence pointed in the Appellants? brief, especially paragraphs 4.7?4.28, establishing the Respondents as the makers and publishers of the offensive libelous Exhibits A1?A5. That the Respondents? reliance on defence of agency specifically made

out in paragraph 4.53 of their Amended Brief cannot avail them, in view of the undisputed Exhibits H, E and F. That ASUU is not a necessary party in the suit based on credible evidence before the Court below, and even if it was this does not affect the competence or jurisdiction of the Court to adjudicate on the matter before it in line with judicial precedent. The Court is thus urged upon to allow the appeal, set aside the judgment of the Court below, and award the Appellant his due reliefs.

As copiously alluded to above, both learned counsel have deemed it expedient to raise two issues in the respective briefs thereof. Essentially, the said issues are apparently not mutually exclusive. I would want to appreciate the two issues raised by the Appellant are germaine to the grounds of the notice of appeal. I would therefore adopt them for the determination of the appeal, anon.

ISSUE NO 1
The first issue raises the question of whether having regard to the circumstances of the case, the pleadings and evidence on record, the alleged libel by the Appellant against the Respondents was established to be entitled to the reliefs sought. The

first issue is distilled from grounds 1 and 2 of the notice of appeal.

It is obvious from the record of appeal (pages 373?375), that the Court below has satisfied itself to the effect;
?A reasonable cause of action has been disclosed in which the Court is clothed with jurisdiction to consider the action complained of.?
?
In the instant case, the Appellant has vehemently contended that he has discharged the onus imposed thereupon in

establishing a case of libel against the Respondents by tendering Exhibits A1?A4 ( pages 43?83 of the record), the FALCONERS Newsletter, where the defamatory words were published consistently for five months.

Contrariwise, however, the Court below allegedly made some erroneous findings not borne out of the totality of the evidence adduced in its findings that the Appellant has discharged the burden of establishing how the Respondents were connected directly with the offending publications in the FALCONER.

Most particularly, at page 385 the Court was so much emphatic in the findings thereof;
This claim of the claimant is also contradicted by CW1- Dr Alfred Bamiso Makanjuola under cross examination who not only admitted in evidence that Exhibit A?A4 are publications of ASUU but also went further to say that ?none of the names of the Defendants appeared as editor or writer of the publications.

What is more, in the Respondents? Final Written Addresses (pages 272?273 of the Record), especially paragraphs i?xi, the Respondents summarized the various pieces of the evidence elicited from the

Appellant?s three witnesses under cross examination by the Respondent senior counsel, VIZ;
(i) That the staff union of universities (ASUU) as a body has its Registered Trustee;
(ii) That Exhibits A, A1, A2, A3, and A4 (FALCONERS editions) are publications of ASUU Unilorin.
(iii) That none of the Respondents was the order or writer of Exhibits A, A1, A2, A3 and A4.
(iv) That the 49 sacked academic staff of Unilorin were immediately reinstated after the Judgment of the Supreme Court without any hindrance from any of the Respondents.
(v) That CW1 and CW2 have never professionally assessed the academic works of the Appellant as academic in a manner that would confer him with any academic or professional benefit.
(vi) That CW2 cannot remember the exact date FALCONER came on board, he believed it was around 1996 (showing it had been in existence before the sack and reinstatement of the claimant) and was also not ?Orchestrated? by the Respondents as falsely claimed by the Appellant.
(vii) That the CW2 was not aware of any ASUU faction in Unilorin.
(viii) That CW2 confirmed the indictment by the Appellant by

the visitation to the Unilorin which led to the institution of a case by the Appellant.
(ix) That the CW2 agreed that the said suit was dismissed and there is appending appeal by the Appellant.
(x) That the Appellant (CW3) admitted as being the chairman ASUU Unilorin .. 2015 when an election was conducted to elect new leadership.
(xi) That the CW2 still recognises the Appellant as the Chairman of ASUU until now with Dr. Kayode Afolayan as Secretary, and Dr. Femi Dunmade as Treasurer.

As aptly postulated by the Respondents? learned counsel, the aggregate of the testimonies of the Appellant?s witnesses in question are rooted and in support of the Respondents? statement (paragraphs 8, 9, 15?25 et al). See AKOMOLAFE VS GUARDIAN PRESS LTD (Supra).
?Thus, since the said pieces of evidence elicited under cross examination are deeply rooted in the Respondents? Statement of Defence, the Respondents are duly privileged to anchor their defence thereupon. Indeed, in civil causes and matters, the person who asserts must prove the assertion thereof. With particular regard to the claimant he must first

put forward evidence in proof of his case. Thus, the failure or refusal of the defendant to establish his defence, cannot all aviate the fundamental burden on the claimant to prove his case. In the present case, it?s obvious from the circumstances surrounding the case and the evidence on record, that the Appellant?s case was doomed at the trial Court. The Appellant from every indication has apparently misconceived the correct trite position of the law in regard to the burden of proof in civil cases, especially bearing in mind the declaratory nature of the reliefs thought. In the sense that the Respondents were not at all obliged to call any evidence to extend the hand of fellowship or comradeship to the Appellant with a view to proving the case thereof. See UMEOJIAKO VS EZENAMUO (1990), NSCC 169 @ 177; PDP VS. INEC (2012) ALL FWLR (Pt. 1300) 538 @ 1561.
The fact that the Appellant has failed to discharge the onerous burden of proving his case in the preponderance of evidence, is not at all in doubt. In the present case, there is ample evidence establishing, as aptly found by the Court below, that the Appellant did not discharge the burden of

proof squarely placed thereupon. Undoubtedly, the Appellant?s case is riddled with conflicting and improbable evidence and testimonies, thereby justifying the unassailable findings of the Court. The CW2, for instance, testified in the written statement on oath there of (page 33 paragraph 4 of the record) to the effect that he knew ?as a fact that all the defendants are lecturers in the University of Ilorin?, only for him to unwittingly somersault under cross examination to claim that he was not aware of the existence of the Respondents as staff of the University of Ilorin as at 2013. Yet, in paragraph 6 of CW2?S statement on oath, the Respondents were the publishers of the FALCONER, which he attributed to the self-styled executive committee of the ASUU Unilorin Branch. Again, in paragraph 12 of the evidence in chief, the Appellant (CW3), he claimed that the Respondents started the publication, a fact which was denied by the CW2 under cross examination, to the effect that the FALCONER was started around 1996 (page 322 of the record). The CW2 equally testified that he was also an erstwhile Chairman of Unilorin ASUU between 1990 and 1993

and that the 1st Respondent was also elected Chairman of the said ASUU Unilorin Branch for the first time in 1998 (page 131).
Therefore, the evidence of the Appellant and his two witnesses are apparently contradictory and unreliable, as they amount to approbating and reprobating which is highly reprehensible. See AJIDE VS KELANI (1985) 3 NWLR (Pt. 12) 248, where in the Apex Court aptly held.
A party should be consistent in stating his case and consistent in proving it. He will not be allowed to take one stand in his pleadings; then turn somersault during the trial? Justice is more than a game of hide and seek. It is an attempt, our human in perfections notwithstanding, to discover the truth. Justice will never decree anything in favour of so slippery a customer as the present Defender/ Appellant.
Per Oputa, JSC @ 269 paragraphs C?E.

In the circumstance, the answer to issue NO.1 ought to be in the negative and same is hereby resolved against the Appellant.

ISSUE NO.2
The second issue raises the vexed question of whether the Respondents are the proper or necessary parties to be sued for the Appellant to the reliefs

sought. The second issue is predicated upon grounds 3 and 4 of the notice of appeal.

In the main, the submission of the Appellant is to the effect that the decision of the Court below striking out the Appellant?s case, on the ground that the proper or necessary party was not before the Court, contradicts its ruling on the preliminary objection, that the suit was imbued with cause of action. Therefore, the Court below having so ruled on the preliminary objection that there?s a cause of action, cannot at the same time in the latter part of the vexed judgment hold otherwise. See BELLO VS. AG OYO STATE (1986) 5 NWLR (Pt. 45) 828.

Contrariwise, it was the Respondents? submission that they were sued in their personal capacities on the faces of the Originating Processes. And that there was nowhere the Respondents were described in their personal capacities or names as the makers, writers or editors of the publications in question. That the effort of the Appellants in this regard go to no avail.

Instructively, both parties are ad idem that the Academic staff union of Universities (ASUU) is a body corporate and has its Registered

Trustees. This is predicated upon the testimonies of the CW1, CW2.
Paragraph 13 of the Appellant?s written testimony on oath (page 352 of the Record) is to the effect, that the unlawful executive of ASUU, Unilorin Branch, led by the Respondents was the publisher of the publication in question. However, the said paragraph 13 of the Appellant?s testimony was disregarded by the Court below. As aptly postulated by the Respondents? learned counsel the oral testimony of the Appellant on the vital question of who is the publisher of the publication in question cannot in law override and subsume the written and therefore permanent inscription on Exhibits A1 ? A4 that the publication was that of ?Academic Staff Union of Union of Universities, University of Ilorin Chapter?. See OJOH VS. KAMALU (2006) ALL FWLR (Pt. 297) 978 @ 1022; DAWODU VS. MAJOLAGBE (2001) 3 NWLR (Pt. 703) 234 @ 243.
By virtue of Rule 13 of the Constitution And Code of Practice of ASUU (Exhibit 1), ASUU Unilorin chapter is a juristic person with its Board of Trustees.
See Rule 13 of the Constitution And Code of Practice of ASUU, Viz:
RULE 13:

TRUSTEES
(i) Three Trustees of the Union (one of whom may be a non-member of the union) shall be elected at a National Delegates? Conference and shall hold office at the pleasure of the Union.
(ii) All the properties of the Union ? both realty and personality, shall be vested in the Trustees jointly on trust for the Union and the Trustees shall deal with the same in the interest and to the benefit of the Union or as may be directed by the National Executive Council.
(iii) A Trustee may be removed from office by the National Executive Council on the grounds of ill-health, unsoundness of mind, removal from the country or for any other reasons which might make him or her unable to perform the duties of the office or unsuitable for such office.
(iv) Whenever a vacancy occurs in the office of a Trustee, it shall be filled temporarily by the National Executive Council until the next National Delegates? Conference.
Therefore, as executive officers of ASUU, the Respondents? were merely acting as agents of the said union, thereby making ASUU a disclosed principal. And the law is trite, that where an agent does an act on

behalf of a known and disclosed principal, it is the principal that ought to be liable and sued. See AMADIUME VS. IBOK (2006) ALL FWLR (Pt. 321) 1247 @ 1264.
Thus, as a disclosed principal, ASUU Unilorin ought to have been made a party to the suit. I agree with the Respondents, that as a juristic person with its Board of Trustees by Exhibit 1 (The Constitution of ASUU), ASUU would be affected by whatever decision likely to be arrived at by the Court below. This proposition is predicated upon the trite principle, that a Court cannot give judgment or make an order against a person who would be affected by its decision if such person was neither made a party nor accorded the opportunity of defending the suit. See PERM SEC MOW KWARA STATE VS. BALOGUN (1975) 5 SC 57 @ 59. (1956 ? 1984) DIGEST OF SUPREME COURT CASES VOLUME 4 @ 418; OLORIODE VS OYEBI (1984) 1 SCNLR 390 @ 406; (1956 ? 1984) DSC CASES 4 @ 48; OGBONDA VS. NKAN-GINIEME (2010) ALL FWLR (Pt. 502) 1034 @ 1061; AMUDA VS. AJOBO (1995) 7 NWLR (Pt. 406) 172 @ 182 Paragraphs A ? B.
?In the circumstance, it is apt to hold that the default of the Appellant to join the desirable and

necessary parties to the suit has rendered the action grossly incompetent, thus robbing the Court below of the requisite jurisdictional competence to determine the suit. I have no hesitation in answering the second and last issue in the negative, and accordingly resolve same against the Appellant.
Hence, against the backdrop of the foregoing far reaching postulation resulting in resolving each of the two issues against the Appellant, there is no gainsaying the fact that the instant appeal is grossly unmeritorious, and it is hereby dismissed by me.
Consequently, the judgment of the Kwara State High Court holden at Ilorin delivered on May 22, 2018 in suit No. KWS/259/2013 by I. B. Garba, J; is hereby affirmed.
The Respondents shall be jointly and severally entitled to costs assessed at N100,000.00 against the Appellant.
Before putting the final dot to this judgment, I have deemed it expedient to reiterate that the historical antecedents of ASUU are not far-fetched. Indeed, ASUU has had a chequered history. Undoubtedly, the Academic Staff Union of Nigeria Universities (ASUU) is a trade Union of patriotic intellectuals committed not only to the

attachment of the socio-political and economic welfare of the members thereof, within the framework of the University system, but the entire good of the citizens and the nation at large.
ASUU came in to being in 1978 with its roots dating back to 1955 when the Association of University Teachers (AUT) was inaugurated. It is a notorious fact, that ASUU is invariably synonymous with struggles. ASUU?S main objectives have been predicated upon adequate funding, improved salary package, autonomy and academic freedom with a view to taming the tide of brain drain, thereby ensuring the survival and enhancement of the Nigerian University System.
Indeed, the mission of every University worth its salt, is to imbibe the culture of imparting knowledge (teaching), research, and above all, public service with a view to solving intractable social problems that regrettably bedeviled the nation:
?In the process of learning, students would be oriented to use their education in solving practical problems confronting them in the Nigerian society and beyond.?
See info@unizik.edu.ng; Wikipedia; HISTORY AND STRUGGLE OF ASUU 2010; ASUU Strike: A

Blessing or A Curse. That?s (hate) dot MyEduNig dot 25 November 2013; ?ASUU Drag University of Ilorin Authority to Anti-Graft Commission?@ dot Vanguard (Nig) dot 23 July 2002, at last, ASUU ?Suspend strike? @ dot Newagency.Vanguard dot 17 December 2013.
Hence, as far-reachingly postulated above, the significance of the participation of ASUU as a party in the Court proceedings resulting in the instant appeal cannot be overemphasized. Thus, it?s very inappropriate, to say the very least, for the Appellant to deem it expedient not join ASUU as a necessary party to the instant action.

HAMMA AKAWU BARKA, J.C.A.: I had the good fortune of reading before now the judgment just delivered by my learned brother Ibrahim Mohammed Musa Saulawa PJ.
I wholly agree with the reasoning and the conclusions to the effect that the appeal is lacking in merit and it is hereby dismissed.
I abide on order made as to costs.

BALKISU BELLO ALIYU, J.C.A.: My learned brother IBRAHIM MOHAMMED MUSA SAULAWA, JCA, has availed me before today with the draft copy of

the lead judgment just delivered. His Lordship has exhaustively dealt with the two-issues raised for determination and having also read the briefs of each party, I agree with the reasoning and conclusion reached in the resolution of those issues against the Appellant. For the reasons contained in the leading judgment, I too dismiss this appeal for lack of merit. I affirm the judgment of Kwara State High Court sitting at Ilorin in suit NO. KWS/259/2013 delivered on 22nd May 2018. I abide by the order of cost made in the lead judgment.

Appearances:

Chief F. Omotosho, Esq.For Appellant(s)

Hassan T. Fajimite, Esq. with him, M. A. Abdulraheem, Esq. and B.M. Bakare, Esq.For Respondent(s)

Appearances

Chief F. Omotosho, Esq.For Appellant

AND

Hassan T. Fajimite, Esq. with him, M. A. Abdulraheem, Esq. and B.M. Bakare, Esq.For Respondent