EHIGIATOR v. OSAHON & ANOR (2022)

EHIGIATOR v. OSAHON & ANOR

(2022)LCN/16447(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, August 26, 2022

CA/B/53/2021

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

MR. WILSON EHIGIATOR (A.K.A. UMENWEAN AKOBEGHIAN) APPELANT(S)

And

1. COMRADE OSAMUYI OSAHON 2. IDOWU AIGBE’S INTERNATIONAL COMPANY LIMITED RESPONDENT(S)

RATIO:

POSITION OF LAW ON DEFAMATORY STATEMENT

…it is settled law that a defamatory imputation consists of the publication to a third person or persons of any words or matter which tend to lower the person defamed in the estimation of right thinking members of society or to expose him to hatred, contempt or ridicule or to injure his reputation in his office, trade or profession or to injure his financial credit. See Edem vs. Orpheo Nig. Ltd. (2003) 13 NWLR Part 838 p. 537, per Iguh J.S.C. at 558. THERESA NGOLIKA ORJI-ABADUA, J.C.A.

MEANING OF LIBEL

Then in Guardian Newspapers Ltd & Anor vs. Ajeh (2011) 10 NWLR Part 1256 page 574, the Supreme Court, per Fabiyi, JSC., stated the definition of libel as a method of defamation expressed by print, writing, pictures or signs; any publication that is injurious to the reputation of another, a false and unprivileged publication in writing of a defamatory material; a malicious written or printed publication which tends to blacken a person’s reputation or to expose him to public hatred or ridicule, contempt or to injure him in his business or profession – Corabi v. Curtis Publication Co. 441 pa. 432, 273 A. 2d 899, 904. See: Black’s Law Dictionary Sixth Edition page 915.” THERESA NGOLIKA ORJI-ABADUA, J.C.A.

POSITION OF LAW ON LIBEL

PRINCIPLE/INGREDIENT OF LIBEL

This Court in Gujba vs. FBN Plc (2011) LPELR-8971(CA), per Orji-Abadua, JCA., restated the principles that “The essence of libel is that the libellous material exists in a permanent form. However, publication is a different matter, for what exists in a permanent form is not “published” until it is made known. Every time it is made known to another person, publication takes place. It is to be noted that the ingredients to be proved in a libel suit as were outlined in Union Bank of Nigeria vs. Oredein and Ors (1992) 4 NWLR Part 247 p.355 are as follows: (a) That the publication must be in writing. (b) That the publication must be false. (c) That the publication must have been published to some other person aside the Plaintiff and the Defendant. (d) That the publication referred to the Plaintiff and was defamatory of him in that; (i). it lowered him in the estimation of right-thinking members of the society; or (ii). It exposed him to hatred, ridicule or contempt; or (iii.) it injured his reputation in his office, trade or profession; or (iv). it injured his financial credit. (e) That the publication was made by the Defendant. THERESA NGOLIKA ORJI-ABADUA, J.C.A.

MEANING OF LIBEL

Oxford Advanced Learner’s Dictionary, 7th Edition at p. 849 defines libel as, “the act of printing a statement about somebody that is not true and that gives people a bad opinion of the person”. THERESA NGOLIKA ORJI-ABADUA, J.C.A.

PRINCIPLE OF LIBEL

Iloabachie vs. Iloabachie 2005 13 NWLR Part 943 page 695, per Akintan, JSC., referred to by the Appellant’s Counsel where the Supreme Court reiterated the essential ingredients or elements a plaintiff must prove to succeed in an action for libel thus: “The law is settled that to sustain an action for libel, the plaintiff must prove that: (1) The publication was in writing; (2) The publication was false; (3) The false publication was made to a person apart from the plaintiff and the defendant; (4) The publication referred to the plaintiff and was defamatory of the said plaintiff, and (5) The publication was made by the defendant.” THERESA NGOLIKA ORJI-ABADUA, J.C.A.

POSITION OF LAW IN DEFAMATION CLAIM

It is trite law that in defamation claims, the element of identification is crucial in bringing a cause of action because if the plaintiff is not identified then he is not defamed. THERESA NGOLIKA ORJI-ABADUA, J.C.A.

POSITION OF LAW IN DEFAMATION CLAIM

…..in defamation claims, whether a Defendant had the intention of identifying the Plaintiff or not is irrelevant. See E Hulton & Co v Jones [1910] AC 20 at 24 per Lord Loreburn LC. THERESA NGOLIKA ORJI-ABADUA, J.C.A.

POSITION OF LAW ON DIRECT IDENTIFICATION IN LIBEL

Direct identification of a Plaintiff in a publication means that he would be identified with the natural and ordinary meaning of the publication. For example, in Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86. THERESA NGOLIKA ORJI-ABADUA, J.C.A.

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The 1st Respondent instituted this action against the Appellant and the 2nd Respondent on the 4th November, 2016 before the Edo State High Court in Suit No. B/679/2016. In his Further Amended Statement of Claim dated the 10th October, 2017, the 1st Respondent at paragraphs 3 and 4 averred thus:
“3. The claimant and 1st defendant were very good friends until they quarrelled over an allegation that the 1st defendant was arrested and imprisoned in Europe where he went for a music concert. The 1st defendant for no just cause blamed the claimant for the rumour of his imprisonment despite the claimant’s denial. All attempt to settle the claimant and 1st defendant failed on account of 1st defendant’s foolish pride and arrogance. This issue of 1st defendant imprisonment separated the intimate friendship between the claimant and 1st defendant. 1st defendant thereafter boasted openly that he will deal with the claimant.
4. This was the state of affair between the claimant and 1st defendant when the 1st defendant in Benin City within the jurisdiction of this Court, out of hatred and malice and with the view of rubbishing the claimant in conjunction with 2nd defendant, caused to be published in Bini Language a libellous music wherein the defendants defamed and malign the character and person of the claimant. In the said music produced by defendants in a video and Audio compact disc in Bini Language the claimant was unjustly compared to a notorious, legendary and infamous Edo character called AKPASUBI who was said to have beaten up his in-laws. The 1st video compact disc has the following words in Edo Language:
Akpasubi gbe orhuren…
Omwan obi wa no,
Akpasubi be orhuren rhunmwunda omwan obi wa no.
Yowo Akpasubi, a i ta Akpasubi, o se ore oko.
ivbi edo mwe, vbo o na ye benia he, ne emwingha kherhe, a ghi wa mugogogo.
Akpasubi be orhuren be edo, rhunmwunda omwa obi, omwa oya wa no.
Ivbi evbomwen, wa do da cho mwe, ne uwa do bu ohien na ese.
Ta naen be erkunmwun wee, otu ne a ye
emwe onren vi ghe baa omwanoroghe,
te ologh na do sion emwe nil…”
See also paragraph 5 of the Further Amended Statement of Claim highlighting the translation of the words used in the music in English language.

He then claimed against them jointly and severally as depicted in paragraphs 17-20 thus:
“(17) An Order of Court compelling the Defendants to tender an unreserved apology to him, to be published in one local and national newspaper.
(18) An Order compelling the 1st and 2nd Defendants to compose and publish (1 new song retracting all they have earlier said concerning the Claimant and also apologize for their misdeed.
(19) The Claimant urged the Court to compel the 1st and 2nd Defendants to withdraw all copies of the audio and video music compact disc containing the defamatory and libellous music now in circulation.
(20) The Claimant demands from the Defendants jointly and severally the sum of N100,000.00(One Hundred Million Naira) punitive/exemplary Damages for the libellous publication which defamed the Claimant’s character and brought the Claimant into public scandal, odium, pains, shame, ridicule and contempt.”

The Appellant as the 1st defendant filed its Statement of Defence on 9/12/2016 while the 2nd defendant filed its own on 23/1/2017. The lower Court conducted a hearing in the suit and delivered its judgment on the 11th February, 2021. It held that the Claimant proved his case of libel against the 1st and 2nd Defendants and then entered judgment in favour of the 1st Respondent in the following terms:
“1. I hereby make an order compelling the Defendants to tender an unreserved apology to the Claimant, to be published in one local and national newspaper.
2. The 1st and 2nd Defendants are to compose and publish a new song retracting all they have earlier said concerning the Claimant and also apologize for their misdeed.
3. I hereby award the sum of N10,000,000 (Ten Million Naira) jointly and severally against the Defendant as damages for the libellous publication which defamed the Claimant’s character and brought the Claimant into public scandal, odium, pains, shame, ridicule and the Claimant contempt.
The cost of N20,000 is awarded in favour of the Claimant.”

In consequence thereof, the 1st Defendant registered his disgust for the judgment by lodging his Notice of Appeal challenging the whole judgment before the lower Court on 12/2/2021. It was initially hinged on one ground of appeal but was later amended to include seven grounds of appeal via a Motion on Notice filed by the Appellant on 12/5/2021. The same was heard and granted by this Court on 14/2/2022. As a result, an Amended Notice of Appeal containing the seven grounds of appeal filed by the Appellant on 11/5/2021 was deemed as duly filed and served on that day. The record of appeal was transmitted to this Court on 8/4/2021. The Appellant’s Brief of Argument was filed on 11/5/2021 while the Respondent’s Brief of Argument was filed on 13/10/2021 but the same was deemed as having been duly filed and served on 14/2/2022. The Appellant’s Reply Brief was filed on 5/11/2021 but was deemed on 14/2/2022.

The Appellant propounded four issues for the determination of this Court thus:
“1. Having regard to the totality of the evidence led at the trial Court and the cardinal duty of Court in respect of same and having regard to the essential ingredients required in proof of libel, whether the trial Court was right to have ignored the evidence in favour of the Appellant and to have held that the 1st Respondent proved the Claim of libel against the Appellant.
2. Having regard to the crucial fact that the 1st Respondent who filed the suit at the trial Court never asked the Court for a declaratory relief in respect of the contentious music works which is in the nature of a principal relief whether the trial Court was right when it declared that the said music works are defamatory of the 1st Respondent.
3. Having regard to the nature of the exhibits tendered by the 1st Respondent to wit: Music Audio which falls under Section 84 of the Evidence Act and having regard to the conflicting details of the contents of the purported music audio given by the 1st Respondent and his witnesses, whether the trial Judge was right to have admitted those music audio without compliance with Section 84 of the Evidence Act.”

The 1st Respondent for himself filed his Brief of Argument and postulated three issues as well. They are as follows:
“1. Having regard to the totality of the evidence led at the trial, taking into consideration the essential ingredient required in proof of libel, whether the trial Court was right to hold that the Respondent proved the claim of libel against the Appellant and 2nd Respondent.
2. Whether the claim of the 1st Respondent was valid and enforceable in law.
3. Whether the video Compact Disc and audio Compact Disc were properly admitted by the trial Court.”

Arguing in respect of issue 1, learned Counsel for the Appellant referenced the cases of Iloabachie vs. Iloabachie (2005) 12 NWLR Part 943 page 695 Chima Ogbonnaya vs. First Bank Nig., Plc (2015) ALL FWLR Part 787-851; and Sketch vs. Ajagbemokeferi (1989) 1 NWLR Part 100 page 678, and Anate vs. Sanusi (2001) 11 NWLR Part 725 page 542, and restated the ingredients of libel as enunciated in Iloabachie’s case (supra) thus: “The law is settled that to sustain an action for libel, the Plaintiff must prove that:
1. The publication was in writing
2. The publication was false.
3. The false publication was made to the plaintiff(sic) apart from the plaintiff and the defendant;
4. The publication referred to the plaintiff and was defamatory of the plaintiff and
5. The publication was made by the Defendant.”

Counsel submitted that the Claimant in an action for libel must prove conclusively that the publication of the material complained of referred to him and to no other person. Counsel then contended that at the hearing of the case, none of the witnesses testified that the 1st Respondent has changed his name from Comrade Osamuyi Osahon to Osamuyi of Depot. Also, the 1st Respondent in his pleading and, in evidence, gave his name as Comrade Osamuyi Osahon. He referred to page 187 of the record where the 1st Respondent testified that his full name is Comrade Osamuyi Osahon, and, Exhibit D, the original voter’s card of the 1st Respondent in which his name was boldly written. He admitted he is not the only person bearing the name Osamuyi and he doesn’t know if he is the only person that bears Osahon in the universe and he does not have any other name apart from Comrade Osahon. Counsel also made reference to the evidence of CW4 under cross-examination that he did not hear the name of the 1st Respondent in the Audio CD played in open Court. He said he only heard Osamuyi Depot and that there are many depot in Benin. He cited the case of Onu vs. Agbese & Anor(1985) LPELR-2698(SC), per Eso, JSC., where the Supreme Court opined that: “The law is so trite that for a Plaintiff to succeed in an action of a defamation, he must not only prove that the Defendant published the defamatory words, he must identify himself as the person defamed. The Book of Gatley on Libel and Slander, 7th Edition page 281 was referred to. He then contended that the 1st Respondent woefully failed to prove that the said music played referred to him and no other person. He also referred to both the pleadings and oral evidence of the Appellant where he denied categorically that the music referred to the 1st Respondent at all. He buttressed this by the deposition of the Appellant adopted at page 187(3) of the record. He said that the story in the music did not refer to Osamuyi Goodluck Osahon. He then relied on the case of West African Chemical Co. Ltd vs. Caroline Poultry Farm (Nig.) Ltd.(1999) LPELR-6228(CA) wherein it was held that where the proof of an issue is left in doubt by the Plaintiff and the Court would be required to speculate, the party on whom the burden squarely rests must lose. It follows that where the existence of essential fact on which a party relies is left in doubt or uncertain, the party on whom the burden rests to establish that fact should suffer and not his adversary. Counsel argued that there was no documentary evidence to support the case of the 1st Respondent whose full name has been given as Comrade Osamuyi Osahon. He stated that the lower Court failed during evaluation of evidence before it to consider the totality of the defence of the Appellant and the evidence in his favour that emanated from his witnesses. Learned Counsel referenced the Supreme Court cases of Hijia Yinus Bakare vs. Deaconess Mrs. Felicia Arinola Ogundipe & Ors (2020) LPELR-49571 (SC) and Ugada & Ors vs. Abigail & 2 Ors. (2009) 7 SC 21 at 38 in which it was held that: “Where a Court fails to give full consideration and determination of the case of a party, it is situation touching on the violation of the party’s constitutional right and the proceedings are vitiated which would then require the intervention of an appellate Court on a complaint of the affected party.” He further cited Ola vs. UniLorin (2014) 15 NWLR Part 1431 page 453 at 481 and Al-Hassan vs. Ishaku (2016) 10 NWLR Part 1520 page 230 at 261 and submitted that the 1st Respondent having affirmed his full name both in his pleading and evidence via Exhibit D, his voter’s card, he can no longer be heard to say that the music defamed him because his name has not been proven as Osamuyi of Depot but as Comrade Osamuyi Osahon. He referred to page 147 of the record and further pointed out that the 1st Respondent was unmistaken in describing himself at the introductory part of his pleading as Comrade Osamuyi Osahon and he never described himself as Osamuyi of Depot. He contended that the 1st Respondent’s witness whose evidence appeared at page 187c of the record demolished the case of the 1st Respondent when he said that there is only one Depot in Benin and he does not know the number of people working in the depot in Benin. He doesn’t know the names of all the people working in the depot. He said he heard Osamuyi of depot mentioned in the music that was played, he did not hear the name of Comrade Osamuyi Osahon of depot in the music. He said that the story of Akpasubi is a mere story. Counsel then contended that despite the damaging evidence, the 1st Respondent’s Counsel failed to re-examine on those facts. He cited the case of Natsaha vs. State (2017) 18 NWLR Part 1596 page 38 at 70 on the purpose of re-examination to clear up any ambiguity that may have arisen as a result of cross-examination. He further relied on the pronouncements in the cases of Adeboye vs. Baje (2016) All FWLR Part 845 page 79 at 120 and Sanya vs. Saumam (2012) All FWLR Part 618 page 917 at 941 and termed the failure to re-examine the witness by the 1st Respondent as an admission against interest and stated that a party is entitled to rely on his opponent’s admission as an admission against interest to defeat his opponent’s case. He made reference to the case of Osunbor vs. Oshiomole (2009) All FWLR Part 463 page 1366 at 1370 and then drew attention to the reliance placed by the lower Court on the assertion at paragraph 7 of CW2’s written deposition adopted as his evidence in chief where he said that he knew that the 1st Defendant was referring to the Claimant when he mentioned Osamuyi of Depot in the music as the Claimant is the only person known and referred to as Osamuyi of Depot having been the Chairman of Benin Tankers Drivers Union for several years, and submitted that it was wrong for the lower Court to have found a link between the purported music of the Appellant and the 1st Respondent. He also referred to the evidence of CW2 under cross-examination and argued that there was a contradiction in the evidence adduced by the 1st Respondent. He then cited the cases of Kayili vs. Yilbuk & Ors (2015) LPELR-24323 (SC) and Zakirai vs. Muhammad & Ors (2017) LPELR-42349(SC) in support. He referred to the testimonies of CW1, CW3, CW3, CW4 and that of the 1st Respondent himself and submitted that the 1st Respondent destroyed his case and urged this Court to allow the appeal.

In respect of issue 2, it was contended that it is the duty of the plaintiff in a matter bordering on determination of rights to first invite the Court to make a declaration on the status of the material itself, that it is the duty of the 1st Respondent to persuade the Court to declare that the said works are libellous, and it is after that, that the Court can declare on the rest reliefs. He cited the cases of Okunade vs. Olawale (2014) LPELR-22739(CA); Dantata & Anor vs. Mohammed (2000) 5 SC page 1; Omoboriowo vs. Ajasin (1983) 10 SC 178; Nsugbe vs. Okobi & Anor (2012) LPELR-24481(CA) and submitted that a declaration relief must be specifically asked or prayed for as a principal relief and not as an auxiliary or corollary relief. He argued that the 1st Respondent never sought for any declaratory relief in his pleading. It was submitted that it is trite law that whatever the pleading may be without the proper prayer, the Court will not grant a prayer outside the one set down in the pleading. He then contended that the 1st Respondent never asked the Court for a declaration that Exhibits A and A1 are libellous publications. He stressed that if the Court does not make a declaration that Exhibits A and A1 are libellous, the Court cannot make any other findings or order as there is no prayer for that by the 1st Respondent and that a consideration of any supposed relief without the principal relief declaring the said Exhibits A and B as libellous, will be a fruitless academic exercise. He reiterated that the legal principle is that principal having fallen through, the adjunct will equally be taken away. He submitted that in the absence of a declaratory relief, the trial Court erred in holding that the Claimant has proved the case of libel against the 1st and 2nd Defendants. He cited the cases of Udu & Ors vs. Ogwudu & Ors (2020) LPELR-51937(CA); and Nabore Properties Ltd vs. Peace Cover (Nig.) & Ors (2014) LPELR-22586 (CA) in support. He referred to paragraph 20 of the 1st Respondent’s Further Amended Statement of Claim where he asked for the sum of N100 million punitive and exemplary damages for the libellous publication which defamed his character and brought him into public scandal, odium, pains, shame, ridicule and contempt, and then submitted that the Court is not an extension of 1st Respondent’s Counsel’s Chambers. He made reference to the decision in Fumudoh vs. Aboro (1991) 9 NWLR Part 214 page 210 at 225, per Niki Tobi, JCA., (as he then was) on the preparation of Court processes, that so much care is required and so much care should be taken as Court process is not just like a letter to a friend where one can afford to slip here and there with little or no adverse effect, and, then urged this Court to allow the appeal.

On issue 3, which in summary queried whether the lower Court was right to have admitted those music audio without compliance with Section 84 of the Evidence Act, learned Counsel submitted that the burden is on the 1st Respondent who filed the suit to prove his case and not the Appellant who has no counter-claim. He emphasized that: “It is settled law that in civil suit, the person who asserts has the primary burden of proving the assertion. The failure of the defendant to prove or his refusal to testify cannot alleviate the primary burden on the Claimant. He relied on the decisions in Gwott vs. Gwong & Ors (2017) LPELR 43285,(CA); UBA Plc vs. Yahuza (2014) LPELR 23976(CA) and Odi & Ors vs. Iyala & Ors (2004) LPELR 2213(SC), per Niki Tobi, JSC. Learned Counsel contended that the music tendered by the 1st Respondent via CW4, that is, Exhibits ‘A’, ‘A1’ and ‘A2′ falls under the definition of documents which include computer generated information which includes tape recording and which admissibility is governed by Section 84 of the Evidence Act. He further submitted that CW4 is not the maker of the original music which he claimed to have interpreted. He made reference to Federal Polytechnic Ese & Ors vs. Oyebanji (2012) LPELR-19696(CA) in support. He further referred toImpact Solutions Ltd vs. INTIL Breweries Plc (2018) 16 NWLR Part 1645 page 377 at 396-397 and 398 where it was stated that the parties’ flagrant defilement of these inviolable provisions of Section 84(2) and (4) of the Evidence Act is fraught with far reaching consequence. It renders the document wholly inadmissible. Their admission by the lower Court is offensive to the adjectival law. It is of no moment that their admission was not greeted with any opposition. The law grants a trial Court the unbridled licence to expunge admitted inadmissible evidence at the judgment stage for a Court of law is drained of the jurisdiction to act on an inadmissible evidence in reaching a decision. Learned Counsel submitted that the 1st Respondent never had the original of the music audio which he is complaining of and that all his witnesses gave conflicting versions of the details of the contents of the music. He then made reference to the evidence of CW1, CW2 and CW4 and the different version given by the 1st Respondent at page 187R of the record. He argued that there was no list of members of depot tendered to establish that the name of the 1st Respondent is the only one that bears the said Osamuyi of depot. He further relied on Ehikhametalor Eromosele vs. Keck Wermer & Ors (2014) LPELR-22183(CA) wherein it was held that where the evidence adduced by a party’s witnesses are at variance or in conflict, the Court is precluded from picking and choosing which of the witnesses to believe or otherwise. Learned Counsel also placed reliance onZakirai vs. Muhammad (supra), where Augie, JSC., opined that the law insists that where there are material contradictions in the evidence adduced by a party, the Court is enjoined to reject the entire evidence as it cannot pick and choose which of the conflicting version to follow. He further mentioned Mini Lodge Ltd & Anor vs. Chief Oluka Olaka Ngei & Anor (2006) LPELR-12620 and Elias vs. Omobare (1982) LPELR-1116(SC) and urged this Court to set aside the judgment of the lower Court on this ground.

Learned Counsel for the 1st Respondent submitted in respect of the 1st Respondent’s first issue that the issue as to whether the Appellant and the 2nd Respondent published the said words were never in dispute as the Appellant and 2nd Respondent admitted in their pleadings and in their evidence in Court that they published the said words. He referred to pages 181, 182, 183 and 187b to 187zz of the record of appeal in support. He cited the cases of Hilary Farms Ltd & 2 Ors v. MV Mahtra (Sister Vesselto MV Kadrina) & 2 Ors (2007) 153 LRCN page 34 at 57 and submitted that facts admitted need no further proof, more so if the said facts or pleaded facts are given in evidence.

He further made reference to the case of John Ebosede Emiator vs. The Nigerian Army & 4 Ors (1999) 72 page 3132 at 3145C and submitted that the tort of libel arises from anything written, printed or published which refers adversely on the character or conduct of another person and is published without justification or excuse. He then stressed that the mere publication of defamatory words to a person other than the claimant constitute libel. On what constitutes publication, Counsel further relied on John Ebosede Emiator’s case where it was expressed that the mere writing of libellous matter complained of,… that is important… and by publication is meant the making known of the defamatory matter to some person other than the person of whom or about it is written. He referred to the findings of the lower Court at page 256 of the record of appeal and page 257 where the lower Court considered whether the 1st Respondent proved the claim of libel against the Appellant and, submitted that there is no dispute as to whether the words were defamatory, as the Appellant and 2nd Respondent did not deny the defamatory nature of the published words but merely contended that it did not refer to the 1st Respondent. He referred to pages 162-172 of the record and highlighted some portions of Exhibit B establishing the facts. He further made prominent some excerpts from Exhibit B3 shown at pages 174 and 175 of the record of appeal and submitted that the publication made was defamatory of the Claimant as it unjustly compared the claimant to a vile and audios Benin character called Akpasubi. He urged this Court to examine the spoken words in the context of Benin parables. He further made reference to paragraphs 4 and 10 of the Further Amended Statement of Claim, paragraphs 4, 5, 7 and 8 of the claimant’s written deposition dated 4/11/2016 and 6 of his 3rd written deposition dated 11/10/2017 where he said that Akpasubi in Edo is someone no one should have relationship with as he is a person of very bad character, a dangerous person, a fool, a person of no integrity, a person to laugh and scorn at, useless and irresponsible person, etc. He also referred to the evidence of Comrade Osaigbovo Eriyo Usohin his written deposition dated 4th November, 2016 and said that the evidence established the publication of the defamatory statements by the Appellant and the 2nd Respondent. He also referred to the remarks of the lower Court at pages 259 and 260 of the record of appeal and persuaded this Court to resolve this issue in favour of the 1st Respondent.

Regarding issue 2, learned Counsel submitted that the claim before the lower Court was valid and therefore enforceable. He pointed out that the issue of declaratory reliefs was not part of the judgment of the lower Court and as such cannot be a subject of appeal as the law is very clear that an appeal must arise from the judgment of the lower Court. He referred to paragraphs 17-20 of the Further Amended Statement of Claim of the claimant where the claimant stated his reliefs and urged this Court to resolve this issue in favour of the 1st Respondent.

On issue 3, which questioned whether the video compact disc and audio compact disc were properly admitted by the trial Court, he submitted that the said music tendered as Exhibits A, A1 and A2 were original copies of the defamatory music produced by the Appellant and the 2nd Respondent. He contended that the said Exhibits were tendered by the 1st Respondent not as the producer but as defamatory materials complained of. He pointed out that the Appellant and the 2nd Respondent did not at the trial deny being responsible for the publication of the Exhibits but merely argued non-compliance with Section 84 of the Evidence Act. He contended that Section 84 of the Evidence Act does not apply to the tendering of defamatory materials by the claimant who was not the maker. He referred to the case of Joseph Oyewole vs. Karimu Akande & Anor (2009) 177 LRCN page 76 at 104 where it was held that a trial Court has a primary duty after hearing evidence from witnesses and watching their demeanour to evaluate relevant and material evidence adduced by both parties having regard to the pleadings. He reproduced the guidelines the Court must consider in the evaluation of evidence before it. He then urged that this issue be resolved in favour of the 1st Respondent and dismiss the appeal.

In the Appellant’s Reply Brief, it was submitted that the 1st Respondent who never cross-appealed departed from issue three formulated by the Appellant and formulated an issue only in respect of the admissibility of the video compact disc and audio compact disc while neglecting the conflicting details of the evidence given in respect of the said compact disc.

Now considering this appeal, it is settled law that a defamatory imputation consists of the publication to a third person or persons of any words or matter which tend to lower the person defamed in the estimation of right thinking members of society or to expose him to hatred, contempt or ridicule or to injure his reputation in his office, trade or profession or to injure his financial credit. See Edem vs. Orpheo Nig. Ltd. (2003) 13 NWLR Part 838 p. 537, per Iguh J.S.C. at 558.

In Esenowo vs. Ukpong (1999) 6 NWLR Part 608 page 612, libel is said to be the publication of false and disparaging matter against a person to a third party. (Sketch Publishing Co. Ltd. v. Ajagbemokeferi (1989) 1 NWLR (Pt.100) 678.”, per Belgore, JSC. Then in Guardian Newspapers Ltd & Anor vs. Ajeh (2011) 10 NWLR Part 1256 page 574, the Supreme Court, per Fabiyi, JSC., stated the definition of libel as a method of defamation expressed by print, writing, pictures or signs; any publication that is injurious to the reputation of another, a false and unprivileged publication in writing of a defamatory material; a malicious written or printed publication which tends to blacken a person’s reputation or to expose him to public hatred or ridicule, contempt or to injure him in his business or profession – Corabi v. Curtis Publication Co. 441 pa. 432, 273 A. 2d 899, 904. See: Black’s Law Dictionary Sixth Edition page 915.”

It may be necessary to mention hereat, the decision of the Supreme Court in Sketch Publication & Others vs. Alhaji Azeez Ajagbemokeferi (1986) 2 SCNJ p. 140 where it was held that a statement is not ordinarily libellous because the plaintiff feels he was harassed, annoyed or irritated, the Court must satisfy itself first that a case for libel has been established by the Plaintiff before it goes on to consider any defence whatsoever which the Defendant has put up in answer to the libel. This Court in Gujba vs. FBN Plc (2011) LPELR-8971(CA), per Orji-Abadua, JCA., restated the principles that “The essence of libel is that the libellous material exists in a permanent form. However, publication is a different matter, for what exists in a permanent form is not “published” until it is made known. Every time it is made known to another person, publication takes place. It is to be noted that the ingredients to be proved in a libel suit as were outlined in Union Bank of Nigeria vs. Oredein and Ors (1992) 4 NWLR Part 247 p.355 are as follows: (a) That the publication must be in writing. (b) That the publication must be false. (c) That the publication must have been published to some other person aside the Plaintiff and the Defendant. (d) That the publication referred to the Plaintiff and was defamatory of him in that; (i). it lowered him in the estimation of right-thinking members of the society; or (ii). It exposed him to hatred, ridicule or contempt; or (iii.) it injured his reputation in his office, trade or profession; or (iv). it injured his financial credit. (e) That the publication was made by the Defendant. It is only if the above had first been determined in favour of the Plaintiff that the further question of Whether or not the defences put forward by a Defendant are maintainable. It must be emphasised that it is not every statement of which causes damage to a Plaintiff that gives rise to a cause of action. The statement, to found an action in libel, must be false and defamatory of the Plaintiff. Oxford Advanced Learner’s Dictionary, 7th Edition at p. 849 defines libel as, “the act of printing a statement about somebody that is not true and that gives people a bad opinion of the person”. It is worthy to note that all the ingredients must be proved, where any of the ingredients is lacking, then no publication has been proved.”
See also Iloabachie vs. Iloabachie 2005 13 NWLR Part 943 page 695, per Akintan, JSC., referred to by the Appellant’s Counsel where the Supreme Court reiterated the essential ingredients or elements a plaintiff must prove to succeed in an action for libel thus: “The law is settled that to sustain an action for libel, the plaintiff must prove that: (1) The publication was in writing; (2) The publication was false; (3) The false publication was made to a person apart from the plaintiff and the defendant; (4) The publication referred to the plaintiff and was defamatory of the said plaintiff, and (5) The publication was made by the defendant.”

The question now is, “was the 1st Respondent able to prove all the ingredients before the trial Court, particularly the ingredient bordering on the identification of the 1st Respondent as the person mentioned in the libellous publication which has been vehemently contended by the Appellant?”. It was contended by the Appellant that the claimant in an action for libel must prove conclusively that the publication of the material complained of refers to him and to no other person. He stressed that none of the witnesses testified that the 1st Respondent has changed his name from Comrade Osamuyi Osahon to Osamuyi of Depot and that the 1st Respondent in his pleading and evidence gave his name as Comrade Osahon.

The issue in contention in this appeal is whether it was established that it was the person of the 1st Respondent the publication referred to. It is absolutely imperative that the identification of the plaintiff in the defamatory material must be established. It is trite law that in defamation claims, the element of identification is crucial in bringing a cause of action because if the plaintiff is not identified then he is not defamed. In an Article titled “Identification of Plaintiff in Defamatory Material by Harris Defamation, Australian Lawyers, it was stated that there are few components to be considered when determining whether identification of the plaintiff has been established including whether the plaintiff has been identified directly or indirectly, the relevance of the defendant’s intention at the time of the publication and other circumstances that may arise. It was stated that there are two ways that a Plaintiff can be identified in a publication, that is, directly and indirectly. While it may not always be the case, for a Plaintiff to be identified directly, the plaintiff must be named in the publication. In other circumstances, the Plaintiff can be identified by his address, title, or photograph. This list is not exhaustive. There is some controversy regarding whether naming a Plaintiff and publishing his photograph or image without naming him are the same. Justice Hunt in Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 35 insisted that they were different while in Dwek v Macmillan Publishers Ltd [2000] EMLR 284 at 294-5, the Court contended that there is no difference in logic or fact that the Plaintiff be identified by photograph or name. Direct identification of a Plaintiff in a publication means that he would be identified with the natural and ordinary meaning of the publication. For example, in Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, the Plaintiff was identified in the publication by his title in office as the ‘Prime Minister of Australia‘, without further naming him. In comparison, establishing direct identification is much easier than indirect identification.
Indirect identification of a Plaintiff in a publication requires more analysis. In Consolidated Trust Co Ltd v Browne (supra), Chief Justice Jordan explained that the less indicative the description of the Plaintiff, the less likely it will be to prove identification. It was said that often, indirect identification is where the Plaintiff has not been named in the publication, rather there is some inference to the Plaintiff where he or she could be identified. In such circumstances, to establish identification, the publication must refer to something that connects to the Plaintiff by way of innuendo. Subsequently, the Plaintiff must particularise extrinsic facts that can demonstrate that he or she was identified in the publication. This requires the test that the ordinary, reasonable reader with knowledge of these extrinsic facts would be able to identify the Plaintiff. A Plaintiff can call witnesses to express that they were able to connect the Plaintiff to the publication, to strengthen the argument of identification. Examples of indirect identification include phone numbers, initials, caricatures, or paintings. Due to the contention of photographs directly identifying a Plaintiff, such a situation would require that one or more people connected the photograph to the Plaintiff, Dwek v Macmillan Publishers Ltd [2000] EMLR 284 at 291.

It is instructive to note that in defamation claims, whether a Defendant had the intention of identifying the Plaintiff or not is irrelevant. See E Hulton & Co v Jones [1910] AC 20 at 24 per Lord Loreburn LC. The reasoning behind this is that, should a Plaintiff be identified in a publication, a Plaintiff will suffer harm to his or her reputation regardless of whether a Defendant intended to refer to a Plaintiff. Unfortunately, in either situation a Defendant can be held liable for a publication.
Also, where a Defendant does not have the intention of identifying a Plaintiff, he may intend to identify another person with the same name as the Plaintiff. Again, in such circumstances, a Defendant can be held liable for defamation should the Plaintiff be reasonably identified from the publication. In Lee v Wilson & Mackinnon, (1934) 51 CLR 276 at 286 per Justice Starke. a prisoner gave the Defendant information that ‘Detective Lee’ of the Motor Registration Branch accepted bribes in a police inquiry. The Defendant published the information provided by the prisoner inaccurately. At the time of publication, three officers with the surname ‘Lee’ were serving in the police force. Subsequently, two of the officers commenced defamation proceedings and the Court ruled in favour of them. The Court held that where a publication is capable of identifying more than one person, the Defendant will be held liable. Intention in such circumstances is not relevant.
Similarly, a Defendant who publishes material referring to a fictitious character can be held liable if a real Plaintiff can be identified from the publication. Effectively, the Plaintiff can call a witness to provide evidence of identifying the Plaintiff with the publication. Again, intention of the Defendant is irrelevant in this situation.
The case of E Hulton & Co v Jones,[1910] AC 20 was one of a plaintiff barrister, named Thomas Artemus Jones and was known commonly as ‘Artemus’. A newspaper published an article about a fictitious character by the same name, who ‘misbehaved’ with another woman at a festival, whilst married. While the publisher of the article provided evidence that the character was not a reference to the barrister, the barrister was able to prove, by calling five witnesses to establish that they had identified the barrister as the character in the article. Further, the barrister was a long-time contributor to the newspaper. The Court awarded damages to the Plaintiff concluding that the Defendant was reckless in the publication.

In the instant appeal, even though the Appellant had contended that he referred to a fictitious Osamuyi of Depot in his publications, the 1st Respondent was able to call witnesses who testified to the fact that they were able to link him (the 1st Respondent) to the publication. This was highlighted by the lower Court when it said at pages 257-263 of the record of appeal thus:
“In the instant case, there is ample evidence to show that there was publication of the libellous matter other than to the Claimant.
The next issue to be dealt with is whether the defamatory words referred to the Claimant. What exactly is the Claimant expected to establish in this regard? In the case of AROMOLARAN V. AGORO (SUPRA) the Supreme Court held that the Plaintiff must prove
“(ii) That the words complained of need not necessarily refer to him by name but would be understood by reasonable people to refer to him”.
Also in the case of AMUZIE V. ASONYE (SUPRA) the Court of Appeal held inter alia “…it is necessary for the Plaintiff to prove the following:
“(b) That the statement referred to, or by implication referred to the Plaintiff’.
The Claimant in his testimony stated the reasons why the defamatory words referred to him. There is also overwhelming evidence from the Claimant’s witnesses which show that the words referred to the Claimant.
CW1 stated that when the 1st Defendant referred to Claimant as Osamuyi of depot” in his music, he knew that the 1st Defendant was referring to the Claimant as the Claimant was the only person known and referred to by friends as Osamuyi of depot, having been chairman of Benin Tankers Union for several years.
CW2 in his evidence-in-chief stated thus:
“That I know that the 1st Defendant was referring to the Claimant when he mentioned Osamuyi of depot in the music as the Claimant is the only person known and referred to by friends as Osamuyi of depot having been chairman of Benin Tankers Driver Union for several years…”
It is worthy of note that there is a link between the testimony of the Claimant and the translated version of the defamatory material. The Claimant in his evidence-in-chief stated that the 1st Defendant accused him of circulating the news that the 1st Defendant was arrested in Europe. The same story the 1st Defendant mentioned in paragraph 9 of Exhibit B’ and paragraph 12 of Exhibit ‘B3’. This further confirms the fact that the 1st Defendant referred to the Claimant when he mentioned “Osamuyi of depot” in the said music.
There is also evidence before Court that the Claimant and 1st Defendant have known themselves for a long time. The production of the defamatory music is not a coincidence but rather a calculated attempt to defame the Claimant due to the quarrel between the two of them. Having regard to the evidence and surrounding circumstance, I hold that the said defamatory words refer to the Claimant.
It is necessary to consider if the music titled “AKPASUBI” is defamatory to the Claimant. As earlier stated in the course of this judgment, the defamatory materials are contained in Exhibits A, A1 and A2 and Exhibits B, B1, B2, B3 and B4 respectively. The Defendants did not however deny the defamatory nature of the published musical works, but only contended that it did not refer to the Claimant. In the said defamatory music audio and video compact disc, the 1st Defendant mentioned “Osamuyi of depot” and also compared him to a vile Benin character called “AKPASUBI”. In Exhibit B, B3 and B4 the translation from Edo Language to English Language, the 1st Defendant defamed the Claimant when he stated in his music that the Claimant was a bad person, an ingrate just like the notorious “AKPASUBI” in the Benin folk tale.
In paragraphs 1 and 2 of Exhibit B3, it states:
“Akpasubi beat up his in-laws, he is a bad and dangerous person”
Paragraph 10 of Exhibit B3 states:
“Oh idiotic man, you may destroy my name by saying that I Akobe was in Overseas and was caught involved in cocaine or drug peddling and that the idiotic and foolish man, went ahead to say with certainty that his own relation witnessed the arrest of Akobe overseas”.
In his evidence under cross-examination CW2 stated that “Akpasubi” is a curse. CW3 in his evidence also stated that “Akpasubi” in Benin is a stupid and very bad man in the society. The Claimant stated under cross-examination that “Akpasubi” is a curse in Bini and that it is not a name.
From the evidence of the Claimant and CW1, CW2 and CW3, comparing the Claimant with the legendary “Akpasubi” and referring to him in the music No doubt has brought embarrassment and defamed the character of the Claimant. It is the evidence of the Claimant that since the publication, some of his friends and family members mock and make jest of him while some sing the 1st Defendant’s song whenever they see him. He testified that he has lost self-esteem among his friends and family members.
However, the Defendants contend that the defamatory music does not refer to the Claimant.
It was only in the pleadings and deposition on oath that the 1st Defendant introduced the story of the guitarist at the rubber deport. He argued that the father told him the story. However this story, or line of defence is not contained in the defamatory music, ranging from Exhibits A, A1, A2, B, B1, B2, B3 and B4. This no doubt amounts to an afterthought on the part of the 1st Defendant.
In the circumstance, the 1st Defendant has no defence to the claim of the Claimant.
Learned Counsel for the 1st and 2nd Defendants have argued that there are many Osamuyi besides the Claimant and that the “Osamuyi of depot” mentioned in the music does not necessarily refer to the Claimant.
It should be stated that this argument is of no moment as credible evidence has been led to relate the defamatory music to the Claimant in the instant case.
In the same vein, the defence of qualified privilege does not avail the 2nd Defendant. He has not proved the counter-claim. He is not entitled to damages.
The Counter-Claim is dismissed.
As regards paragraph 19 of the Further Statement of Claim, the Court does not make order in vain. I do not think it is practicable for the 1st and 2nd Defendants to withdraw all the copies of the audio and video music CD containing the libellous music now in circulation. This relief is refused.
The Claimant no doubt has led strong and credible evidence that the libellous words in the music referred to him and that the publication of same has caused public sandal and contempt. In this regard, the Claimant is entitled to award of damages.
On the whole and in sum I hereby hold that the Claimant has proved the case of libel against the 1st and 2nd Defendants and I hereby enter judgment in favour of the Claimant on the following terms:
1. I hereby make an order compelling the Defendants to tender an unreserved apology to the Claimant, to be published in one local and national newspaper.
2. The 1st and 2nd Defendants are to compose and publish a new song retracting all they have earlier said concerning the Claimant and also apologize for their misdeed.
3. I hereby award the sum of N10,000,000 (Ten Million Naira) jointly and severally Against the Defendant as damages for the libellous publication which defamed the Claimant’s character and brought the Claimant into public scandal, odium, pains, shame, ridicule and contempt.
The cost of N20,000 is awarded in favour of the Claimant.”

It is clear in this case that the 1st Respondent’s surname was used in the publication even though as the Appellant tended the Court to believe, he was not the only one with the surname “Osamuyi”. The fact remains that he, the 1st Respondent, was able to produce evidence through his witnesses establishing that he was easily identified as the Osamuyi of Depot referred to in the music. I completely agree with the assessments made by the lower Court and in so doing, I find strength in one case outside the Nigerian jurisdiction, that is to say, a decision of the Supreme Court of Illinois in the case of Kimberly Bryson v. News America Publications, Inc., 174 Ill. 2d 77 (Ill. 1996)672 N.E.2d 1207 published on Oct 24th, 1996 where Kimberly Bryson, brought an action against the defendants, News America Publications, Inc., and Lucy Logsdon claiming that she was defamed by the publication of an article entitled Bryson, which was written by defendant Logsdon and published by defendant News America in the March 1991 edition of Seventeen magazine. The publication was a short story entitled Bryson, written by defendant Logsdon, and published by the defendant News America in the March 1991 issue of Seventeen magazine as part of a group of stories entitled “New Voices in Fiction”. The story, written in the style of a first-person narrative, recounts a conflict between the unidentified speaker and her high school classmate, Bryson. According to the speaker, Bryson, “[a] platinum-blond, blue-eye-shadowed, faded-blue-jeaned, black polyester-topped shriek” who lives “on the other side of town” was “after” her. In the course of describing events that led up to an after-school fight between Bryson and the speaker, the speaker discusses an incident that occurred two months earlier:
“About two months ago Bryson was at a bonfire with these two guys that nobody knew. One had a tattoo, and they were all drinking. Lots. Who knows what guys like that made Bryson do. The next day she came into school with a black eye. Beth Harper looked at her too long, and Bryson slammed her up against a glass door and cracked her one clean in the mouth.
Later that afternoon, as Bryson shouted down the hallways like always, I remembered what a slut she was and forgot about the sorriness I’d been holding onto for her.”
The story continues as the speaker describes the fight that ensues between the speaker and Bryson. A footnote at the end of the story identifies the author, Lucy Logsdon, as a “native of southern Illinois.”
The plaintiff’s second-amended complaint, which was dismissed by the trial Court, contained six counts. Each count alleges that the March 1991 edition of Seventeen magazine, including the article entitled Bryson, was published to the general public. The counts further allege that defamatory language appeared in that magazine “in that the article referred to the [plaintiff]as a ‘slut’ and implied that the [plaintiff] was an ‘unchaste’ individual.” Each count further alleges that this language and implication were false and that each defendant permitted a false statement to appear through “malice or actual negligence.”
Counts I and II, which attempt to state a cause of action for defamation per se against each defendant, allege damage to the plaintiff’s reputation and seek appropriate compensatory relief, as well as punitive damages. Counts III and IV also attempt to state a cause of action for defamation, but allege that the damage to the plaintiff’s reputation caused her to suffer pecuniary loss in the form of lost business opportunities and/or lost employment. Counts V and VI, which attempt to state a cause of action for invasion of privacy/false light against each defendant, assert that the article placed the plaintiff in a false light in the community which would be objectionable to a reasonable person. These counts further alleged that the false light in which the plaintiff was placed caused her to suffer pecuniary losses stemming from lost business opportunities and/or employment and sought compensatory, as well as punitive, damages.
The defendants raised three arguments in support of the trial Court’s dismissal of the defamation per se. They first claim that the statements do not fall within any of the limited categories of statements that are considered actionable per se. Second, they argue that the statements may not be considered actionable per se because they are reasonably susceptible to an innocent construction. Finally, the defendants claim that, even if the statements may be considered actionable per se, they are nevertheless expressions of opinion, protected under the first amendment to the United States Constitution. U.S. Const., amend. I. We consider each of these arguments in turn.
The defendants next argue that the innocent construction rule must apply in this case because the article may reasonably be construed as referring to someone other than the plaintiff. The defendants note that the complaint does not allege any facts to demonstrate that third persons would reasonably conclude that the character “Bryson” is the plaintiff, Kimberly Bryson. The defendants argue that, under Illinois law, where an allegedly defamatory statement does not mention the plaintiff by name, the plaintiff must plead extrinsic facts to demonstrate that third persons believed that the libellous statement referred to the plaintiff. Barry Harlem Corp. v. Kraff, 273 Ill. App.3d 388 (1995); Homerin v. Mid-Illinois Newspapers, 245 Ill. App.3d 402 (1993); Moore v. Streit, 181 Ill. App.3d 587, 597-98 (1989); Voris v. Street Smith Publications, 330 Ill. App. 409 (1947).
We agree with the general proposition that, where a libellous article does not name the plaintiff, it should appear on the face of the complaint that persons other than the plaintiff and the defendant must have reasonably understood that the article was about the plaintiff and that the allegedly libellous expression related to her. See 33A Ill. L. Prac. Slander Libel §§ 93, 13, at 97, 28-29 (1970); Coffey v. MacKay, 2 Ill. App.3d 802, 807 (1972). Neither this principle nor the cases upon which the defendants rely, however, apply here.
The article at issue did, of course, use the plaintiff’s last name. The name “Bryson” is not so common that we must find, as a matter of law, that no reasonable person would believe that the article was about the plaintiff. The cases that the defendants cite all involve circumstances in which the allegedly libellous article or statement did not use the plaintiff’s name. In Voris, the defamatory article referred only to a person named “Snapper Charlie.” Voris, 330 Ill. App. 409. Homerin involved a political cartoon that supposedly depicted the plaintiff’s likeness, but did not identify him by name. Homerin, 245 Ill. App.3d 402. Barry Harlem Corp. likewise involved an article that did not mention the plaintiff by name. Barry Harlem Corp., 273 Ill. App.3d 388. Under the present facts, we reject the defendants’ claim that the story must be innocently construed as referring to someone other than the plaintiff.
The defendants also argue that the article may be construed as not referring to the plaintiff simply because the story is labeled “fiction” and, therefore, does not purport to describe any real person. We are not persuaded by this contention. In her complaint, plaintiff Bryson claims that she is the character “Bryson” depicted in the defamatory story. The fact that the author used the plaintiff’s actual name makes it reasonable that third persons would interpret the story as referring to the plaintiff, despite the fictional label. In addition, the setting of the story, the events described therein, and the identification of the writer as a native of southern Illinois all lead to a reasonable conclusion that third persons familiar with both the plaintiff and the defendant would understand the story as referring to the plaintiff.”
Similar scenarios played out in the instant appeal and they were clearly captured in the findings of the lower Court. The 1st Respondent was able to establish through his witnesses that he was the person indirectly referred to by the Appellant in the song about Osamuyi of Depot likened to a vile Benin character called “Akpasubi”. Therefore, I have no difficulty in acceding to the finding of the lower Court that the 1st Respondent established that he was the person referred to in the defamatory publication made by the Appellate and the 2nd Respondent.

Regarding the second issue, and as rightly observed by the lower Court, the paragraphs containing the reliefs sought by the 1st Respondent are not well couched, but they unambiguously conveyed the prayers sought by the 1st Respondent. It was contended that since the 1st Respondent never asked the Court for a declaratory relief, whether it was right for the lower Court to have declared that the said music works are defamatory of the Respondent.

Paragraph 19 of the 1st Respondent’s claim made it clear that the audio and video music contain the defamatory and libellous music now in circulation. Paragraph 20 is devoid of any speculation because it asked for N100 million punitive/exemplary damages for the libellous publication which defamed the claimant’s character and brought the claimant into public scandal, odium, pains, shame, ridicule and contempt. I believe it was a misconception on the part of the Appellant to have imagined that declaratory relief was granted by the lower Court.

On issue 3, the law as expressed by the Supreme Court, per Nnaemeka-Agu, JSC., in Ogunbadejo vs. Owoyemi (1993) 1 NWLR Part 271 page 517 on the duty of a plaintiff who comes to Court in a case of libel is: “Now, the first duty of a plaintiff who comes to Court in a case of libel contained in a document is, subject to recognized exceptions, to produce and tender the whole of the original document complained of as well as any connected documents which are capable of throwing any light on the meaning of the words complained of, to be read and construed by the Court. This is a duty which the plaintiff owes to the defendant and the Court. See Plato Films v. Speidel (1961) A.C. 1126, at pp. 1143-1144; also, R. v. Lambert (1810) 2 Camp. 398, at pp. 400-401, per Lord Ellenborough.” He went further to say that “This important rule obliging the plaintiff to produce and tender the whole of the original document complained of can only be relaxed in three situations. The first is where secondary evidence is admissible and the plaintiff has laid the proper foundations and taken the necessary steps for admission of such secondary evidence (see Johnson v. Hudson (1836) 7 A. and E. 233n, 234n; also. Rainy v. Bravo (1872) L.R. 4 P.C. 287. The second is where the document in question is shown to be in the possession of the defendant or his solicitor and the plaintiff has served upon them a proper notice or subpoena duces tecum but they have failed to produce it: see Doe & Phillips v. Morris (1835) 3A and E.4). The last is where it has been shown that the libel is contained in a document or in such a form which it is physically impossible or highly inconvenient to produce same in Court see Owner v. Beehive (1914) 1 K.B.105.at p.108: also Sayer v. Glossop (1848) 2 Exch. at p.411. A good example of the last exception is where the alleged libel is written in an immovable structure, the production of which in Court would be impossible or highly inconvenient. Unless a plaintiff who comes to Court in a case of libel based on a document or other publication in a permanent form can bring his case within one of the above three exceptions. The rule that he must produce and tender not only the whole of the original document said to contain the libel but also other connected documents has full force and effect. If the document is in the possession of a person who is not a party to the proceedings but is within jurisdiction, the plaintiff must serve him with the appropriate subpoena to come and produce the document. See on these: Gately: On Libel & Slander (7th Edn.) paragraph 1209 to 1213.”
By the above decision, it is clear that the plaintiff is the one to produce and tender the libellous material except where it is not in his possession.

It is evident in the entire record of appeal before this Court that the Appellant never disputed the contents and the translated version of the said exhibits. He admitted producing the songs. I would at this stage reference the opinion expressed by Rhodes-Vivour, JSC., in Dickson vs. Sylva (2016) LPELR-41257(SC) thus: “Section 84 of the Evidence Act must now be examined. It reads:- “84 (1) In any proceeding a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Subsection (2) of this Section are satisfied in relation to the statement and computer in question. (2) The conditions referred to in Subsection (1) of this Section are – (a) that the document containing the statement was produced by computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not by anybody, whether corporate or not, or by any individual; (b) that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived; (c) that throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and (d) that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary cause of these activities. 84 (4): In any proceeding where it is desired to give a statement in evidence by virtue of this Section a certificate – (a) Identifying the document containing the statement and describing the manner in which it was produced; (b) Giving such particulars of any device involved in the production of that document may be appropriate for the purpose of showing that the document was produced by computer; (c) Dealing with any of the matters to which the conditions mentioned in Subsection (2) above relate, and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate; and for the purpose of this Subsection, it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. A diligent examination of Section 84 of the Evidence Act reveals that the Section does not say that the computer or electronic device used in playing the DVD in open Court requires certification, rather it is only the computer that produces the DVD – Exhibit ‘P42B’ that requires certification. Section 84 in the Evidence Act is all about ascertaining the authenticity of the device from which the exhibit was produced. Exhibit ‘P42B’, electronically generated evidence was admitted in evidence as an exhibit after the Tribunal was satisfied that there was compliance with the provisions of Section 84 of the Evidence Act, (See Exhibit ‘P42A’). After the DVD was admitted as Exhibit ‘P42B’ compliance with Section 84 of the Evidence Act is no longer required as that threshold had been well and timely passed once the DVD becomes an exhibit. The examination of the DVD (an exhibit) includes playing it, and the DVD must be examined at some stage. In other climes, the DVD would have been played by the Court’s device and the Court’s device would not require certification. The refusal by the Tribunal to play the DVD to my mind was wrong. An exhibit, documentary evidence is a thing relied on by the party producing it for the sole purpose of strengthening his case. Once such evidence supports oral testimony such oral testimony becomes more credible. See Omoregbe v. Lawani 1990 3-4 SC p.117: Kimdey and Ors v. M G of Gongola State 1988 2 NWLR R/77 p. 473. The Petitioner must be allowed to present and ventilate his case within the confines of the law and procedural requirements. Playing the DVD (Exhibit ‘P42B’) in Open Court is very much within the standards required.”
The Exhibits were tendered and admitted before the lower Court. The only thing he disputed was that the 1st Respondent was not the one he compared with the character, “Akpasubi” in the alleged defamatory songs. The lower Court observed that the Appellant admitted producing the said documents therefore, the need to comply with Section 84 did not arise. Issues 2 and 3 are resolved in favour of the 1st Respondent. Accordingly, this appeal is dismissed with no order as to costs.

JAMES GAMBO ABUNDAGA, J.C.A.: My Lord, Theresa Ngolika Orji-Abadua, JCA graciously availed me a draft of the judgment delivered by him in this appeal. Having painstakingly read same, I have no reason to differ from him on the resolution of the germaine issues in the appeal.

Therefore, I also dismiss same, and in consequence, abide by all the orders made including order as to costs.

ADEMOLA SAMUEL BOLA, J.C.A.: I have read in draft, the judgment of my learned brother, THERESA NGOLIKA ORJI-ABADUA, PJCA. I am in agreement with his reasoning and conclusion. I adopt them as mine.
I abide by the consequential orders made.

Appearances:

E. O. Afolabi, Esq. with him, Fidelis Oriaifo, Esq. and S. O. Oni, Esq. For Appellant(s)

H. O. Etukudo, Esq. For Respondent(s)