F.R.S.C. & ORS v. INCORPORATED TRUSTEES OF RISK & ACCIDENT PREVENTION SOCIETY OF NIG (2020)

F.R.S.C. & ORS v. INCORPORATED TRUSTEES OF RISK & ACCIDENT PREVENTION SOCIETY OF NIG

(2020)LCN/14670(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, October 06, 2020

CA/A/462/2012

RATIO

JURISDICTION: AT WHAT STAGE CAN THE ISSUE OF JURISDICTION BE RAISED

The settled position of the law is that it does not matter how issue of jurisdiction is raised, once it is raised the Court will consider it as it can be raised at any stage of proceedings at the trial Court or Appellate Court. See BARRISTER ORKER JEV & ORS VS SEKAN IZUA IYORTOM & ORS (2014) 14 NWLR (PART 1428) 575 AT 608 D -E per OKORO, JSC who said:-

“Let me quickly add here that a preliminary objection which borders on Jurisdiction cannot be brushed aside by the Court but must be considered by the Court regardless of the manner in which it was raised. Such issue, I must say can be raised for the first time in this Court with or without leave. Nnonye v Anyichie (2005) All FWLR (Pt. 910) 623.” PER IGE, J.C.A.

ACTION: RULE ON INITIATION OF AN ACTION

A suit or an action must be originated or initiated in full compliance with all relevant laws and procedure or due process as an incompetent Originating Summons or Writ of Summons cannot confer or give jurisdiction to Court or Tribunal to adjudicate on the subject matter of the action or suit.
1. JAFAR SANI BELLO V ABBA K. YUSUF & ORS (2019) 15 NWLR (PART 1695) 250 AT E – H per KEKERE-EKUN, JSC
2. ALHAJI FATAI O. YUSUF VS MOBIL OIL NIGERIA PLC (2020) 3 NWLR (PART 1710) 1 AT 15 F- H per OKORO, JSC who said:
“In other words, the Court will have no Jurisdiction to hear and determine an incompetent process. I made this point very clear in Union Bank of Nigeria Plc. v. Alhaji Sadiku Lawal (2011) LPELR – 8879 (CA) at page 10 paragraphs E – F; (2012) 6 NWLR (Pt. 1295) 186 when I stated as follows:
“Where however a Court process is fundamentally defective ab initio, it is incompetent and does not exist at all in law. Consequently, such an incompetent process cannot be amended.”
The truth must be told that where a writ of summons or statement of claim is incompetent, as in this case, the Court would lack the Jurisdiction to entertain the matter. Where the matter is heard and determined on the incompetent process, the Court would have engaged in a wasteful judicial exercise, no matter the efforts put in it. The entire proceedings are void and liable to be set aside.”
3. MOHAMMED KIDA V A.D. OGUNMOLA (2006) 13 NWLR (PART 997) 377 AT 394 F – G per MUSDAPHER, JSC later CJN, RTD) who said:
“In my view, the validity of the originating processes in a proceeding before a Court, is fundamental, as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside and a nullity. It clearly borders on the issue of Jurisdiction and the competence of the Court to adjudicate on the matter. Such issue can be raised at any time and it can never be alien to the proceedings as claimed by the learned trial Judge.” PER IGE, J.C.A.

PROCESS: MANNER AND PROCEDURE OF SIGNING LEGAL PROCESS

The manner and procedure of signing legal process by a Legal Practitioner has been stated and re-enacted in numerous cases by this Court and the apex Court right from the leading case on the subject namely; OKAFOR V NWEKE (2007) 5 SCM 180 and it is now cast in iron that any legal process that is not signed by a Legal Practitioner called to the Nigerian Bar in accordance with Sections 2 and 24 of Legal Practitioners Act will be rendered incompetent and the offending process will be liable to be struck out. See;
1. SLB CONSORTIUM V. NNPC (2011) 5 SCM 187 AT 197 – 198 per ONNOGHEN, JSC later CJN Rtd.;
2. DR. AJEWUMI BILLY RAJI VS UNILORIN & ORS (2018) 15 NWLR (PART 1642) 220 AT 235 B – D per PETER-ODILI JSC where my Lord said:-
“The position stated above is reiterated for emphasis by this Court in the case of Okafor v. Nweke (2007) All FWLR (Pt. 368) 1016 at 1026 – 1027; (2007) 10 NWLR (Pt. 1043) 521 to the effect that a process as the notice of appeal must be signed by a legal practitioner known to law, thus the identity of the person who signed the notice of appeal must be disclosed to assist Court to confirm that the person who signed the document is a legal practitioner indeed. What is meant by this policy is not to await the clarification by affidavit as to the identity of the owner of the signature on the particular process. What the appellant is asking of the Court is to authenticate an absurdity; where the Supreme Court has to suspend action and ascertain first of all that the person who signed the starting point of an appeal when it has not been signed by the appellant himself but a person who claims to be a legal practitioner, that he is indeed a legal practitioner. Such a surveying duty is not for the Court and nothing has happened yet to show that it is likely to be commenced now.”
On page 236 D – H RHODES-VIVOUR, JSC said:
“Where a notice of appeal is not signed, and the Court proceeds to hear the appeal, it would be as if the hearing never took place. This is so since one cannot put something on nothing and expect it to stand. See UAC v. Macfoy (1962) AC 152.
In SLB Consortium Ltd. v. NNPC (2011) 4SC (Pt. i) p. 86; (2011) 9 NWLR (Pt. 1252) 317 at pg. 337-338, paras. G-A.
I said that:
“Once it cannot be said who signed a process it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot overrule the law (i.e. the Legal Practitioners Act). All processes filed in Court are to be signed as follows: Firstly, the signature of counsel, which may be any contraption. Secondly, the name of counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of Legal Firm.
The notice of appeal was signed by “someone” on behalf of Dap Akinlaja Esq. That “someone” deposed to an affidavit explaining the blunder.
On looking at the notice of appeal it is impossible to say who signed it for Dayo Akinlaja Esq.
On this fact alone the notice of appeal is a nullity. Deposing to an affidavit to explain irredeemable flaws in the signing of the notice of appeal is a worthless exercise since processes must be seen to have been properly signed, just by looking at it and not by examining affidavit evidence.” PER IGE, J.C.A.
PROCESS: HOW A LEGAL PRACTITIONER SHOULD SIGN A PROCESS

This Court had hitherto given insight on how compliance with the provisions of Section 2 of the Legal Practitioners Act can be said to have been met in the case of SLB Consortium Ltd. v. NNPC (2011) 4 SC (Pt. 1) 97, (2011) 9 NWLR (Pt. 1252) 317 where Rhodes- Vivour, JSC stated thus:-
“What then is so important about the way counsel chooses to sign processes. Once it cannot be said who sign (sic) a process it is incurably bad, and rules of Court that seems to provide a remedy are of no use as a rule cannot override the law (i.e. Legal Practitioners Act) All processes filed in Court are to be signed as follows:-
First, the signature of counsel, which may be by any contraption. Secondly, the name of the counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of the legal firm.
See also Reg. Trustees Apostolic Church v. Akindele (1967) NSCC (Vol.5) 117, (1967) SCNLR 205 where this Court also held that a Notice of Appeal which mentioned the Legal Practitioner’s name as J.A. Cole & Co and the said process was signed as J.A. Cole for J.A. Cole & Co was held to be in order and correct. PER IGE, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

FEDERAL ROAD SAFETY COMMISSION 2. FEDERAL ROAD SAFETY CORPS (FRSC) 3. THE CORPS MARSHAL/CHIEF EXECUTIVE FEDERAL ROAD SAFETY COMMISSION APPELANT(S)

And

INCORPORATED TRUSTEES OF RISK & ACCIDENT PREVENTION SOCIETY OF NIGERIA RESPONDENT(S)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): By his Writ of Summons filed at the Federal Capital Territory High Court on 23rd of October, 2009 the Respondent sought against the Appellants as Defendants at the said Court the following relief namely:-
1. “A declaration that the newspaper Publication made by the Defendants, the various newspapers, viz-a-viz page 11, LEADERSHIP WEEKEND August 1st 2009; page 52, SUNDAY SUN, August 1st 2009; page 52, SUNDAY SUN, August 2nd 2009, page 63, THE GUARDIAN Thursday 6th 2009, page 42, THE GUARDIAN TUESDAY, AUGUST 11th 2009 are defamatory.
2. An order of the Honorable Court compelling the defendants to render an unreserved apology to the plaintiff and retract the defamatory publications publish same in the LEADERSHIP, SUN and THE GUARDIAN Newspapers.
3. An order of perpetual injunction restraining the Defendants from publishing defamatory words against the plaintiff.
4. General damages in the sum of N200,000,000.00 (Two Hundred Billion Naira) only.
5. Cost of litigation.

The said reliefs were replicated in paragraph 48 of the statement of claim of the Respondent. The Appellants

filed their statement of Defence to also included counter-claim against the Respondent as follows:
1. And by way of Counter-claim the 1st Defendant herein, restates all the allegations contained in all the paragraphs of its Statement of Defence.
2. Declaration that it amounts to a usurpation of the statutory functions of the 1st Defendant, for the Plaintiff to purport to have power to organize and or carry out any National Visual Testing and Safety Certification Scheme.
3. A Declaration that it is ultra vires the powers of the Plaintiff to carry out any National Visual Testing and Safety Certification Scheme.
4. An order of perpetual injunction restraining the Plaintiff from carrying out, organizing and or advertising any National Visual Testing and Safety Certification Scheme by whatever name called.
5. N100 million naira general damages.
6. Interest on the above sum calculated at the rate of 10% from the date of judgment until final liquidation.
7. The cost of this suit.

The matter proceeded to trial and after the addresses of Learned Counsel for the parties the Learned trial Judge gave a considered Judgment on 5th

November, 2015. The Learned trial Judge (ONIYANGI – J) gave judgment in favour of the Respondent as follows:
“In conclusion, I hereby hold that the Defendants i.e. the 1st to 3rd Defendants are hereby jointly and severally liable to the Plaintiff and I accordingly declare as follows:
1. That the newspaper publication made by the Defendants in various newspapers vis-a-vis pages 11 Leadership Weekend, August 1st 2009, page 52, Sunday Sun, August 2nd and 2009, page 63, The Guardian Thursday, 6th August, 2009 and page 42, The Guardian Tuesday, August 11th 2009, are defamatory.
2. The Defendants should tender an unreserved apology to the Plaintiff and retract the defamatory Publication and publish same in any two of either Leadership, Sun or Guardian newspapers forthwith.
3. The Defendants are hereby perpetually restrained from publishing defamatory words against the Plaintiff forthwith.
4. The Defendants to pay general damages assessed at N20,000,000.00 (Twenty Million Naira) to the Plaintiff.
5. The Defendants shall also bear the cost of these proceedings.

The Appellants were aggrieved by the decision and have by their further

Amended Notice and Grounds of Appeal dated 19th day of December, 2013 and filed on 20th day of December, 2013 appealed to this Court on twelve (12) grounds which without their particular are follows:
1. The trial Court erred in law and occasioned a grave miscarriage of justice when it heard and delivered Judgment on the Respondent’s Writ of Summons, which was not signed by a Legal Practitioner whose name is on the Roll of Legal Practitioners at the Supreme Court.
2. The trial Court erred in law and occasioned a miscarriage of justice, when it assumed jurisdiction and proceeded to hear and determine the Respondent’s action in libel, against Appellants who are public officers.
3. The trial Court erred in law when it held that the 2nd Appellant’s publications, contained in the Leadership Weekend Newspaper of August 1, 2009, Sunday Sun Newspaper of August 2, 2009, Guardian Newspaper of Thursday, August 6, 2009, and Tuesday, August 11, 2009, were defamatory of the Respondent.
4. The trial Court erred in law when in deciding whether Appellants’ publications were defamatory of the Respondent it dwelt extensively and placed heavy reliance on the

meaning of the word “risk”, in isolation of the entire publication.
5. The trial Court erred in law when it failed to expunge from its record, and relied heavily upon Exhibit P25, a letter dated 11th December, 2009, which was made during the pendency of the suit, in holding that the Respondent suffered an adverse damage to its reputation, by the Appellants publications.
6. The trial Court erred in law when it held that the defences of qualified privilege and justification did not avail the Appellants and that the defence of the Appellants put together was suggestive of a fear of competition in the aim and objective of the Respondent and an act of outright jealousy.
7. The trial Court erred in law, occasioning a miscarriage of justice, when in considering the defence of the Appellants; it proceeded to determine the defence of fair comment which was never raised by the Appellants.
8. The trial Court erred in law when in dismissing the Appellants defence of qualified privilege, it failed to appreciate when the burden of proof shifted to the Respondent to establish malice on the part of the Appellants, by filing a Reply to the Joint Statement

of Defence, where the defence of qualified privilege was raised.
9. The trial Court erred in law when it held that the aims and objectives of the Plaintiff do not violate or infringe on any of the statutory responsibilities of the Defendants’ and that the Respondent’s proposed National Visual Testing and Safety Certification scheme was not ultra vires its functions under its Constitution.
10. The trial Court erred in law when it granted the reliefs sought by the Respondent and made a further award of damages in the sum of N20,000,000.00 (Twenty Million Naira).
11. The trial Court erred in law when it admitted in evidence and relied upon the testimony of PW2, which was hearsay evidence, in assessing the quantum of damages awarded to the Respondent in the sum of N20,000,000.00 (Twenty (Million Naira).
12. The trial Court erred in law when in dismissing the Appellants counter-claim; it failed to properly evaluate the evidence led by the Appellants in proof of same.”

The Appellant’s Brief of Argument dated 19th day of December, 2013, was filed 20th day of December, 2013 and deemed filed on 27th day of April, 2017. The Respondent’s Brief

of Argument was filed on 26th day of May, 2017, though dated 28th day of May, 2017.
The appeal was heard on 8th July, 2020 when the Learned Counsel to the parties adopted their briefs of arguments.

The Learned Counsel to the Appellant KAUNA PENZIN, ESQ who settled the Appellant’s Brief of Argument distilled nine issues for determination as follows:
“Issue One (Ground 1)
Whether the Judgment of the trial Court was delivered without Jurisdiction, considering that the Writ of Summons upon which the suit was commenced, was not signed by a Legal Practitioner whose name is on the Roll of Legal Practitioners in the Supreme Court.
Issue Two (Ground 2)
Whether the lower Court had jurisdiction to hear and determine the Respondent’s action in libel, when the Appellants are public officers/offices, in line with the decision of the Court of Appeal in Omega Bank Plc v. Govt. Ekiti State (2007) 15 NWLR (Pt.1061) p. 455 that public officers/offices cannot sue and be sued in libel.
ISSUE Three (Grounds 3 and 4)
Whether from the circumstances of this case the trial Court was right In holding that the Appellants’ publications in several

newspapers were defamatory of the Respondent, when in reaching such a conclusion, it relied heavily on the meaning of the word “risk”, out of context of the entire publications.
Issue Four (Ground 5)
Was the trial Court right, when it failed to expunge Exhibit P25 from its record (a letter dated 11th December, 2009), but rather relied on same in entering judgment in favour of the Respondent, when the said Exhibit was made during the pendency of the suit, which was instituted on 23 rd October, 2009.
Issue Five (Grounds 6 and 8)
Whether the trial Court was right, when it dismissed the defences of qualified privilege and justification, put up by the Appellants, even when the burden of proving express malice had shifted to the Respondent but it failed to discharge same, by filing a Reply to the Joint Statement of Defence.
Issue Six (Ground 7)
Whether the trial Court was right when, instead of considering the defence of qualified privilege raised by Appellants, it considered the defence of fair comment, which was never raised by the Appellants.
Issue Seven (Ground 9)
Whether the aims and objectives of the Respondent are not a

violation and infringement of the Appellants’ statutory responsibilities under the Federal Road Safety Commission (Establishment) Act, 2007, and the Respondent’s proposed National Visual Testing and Safety Certification Scheme was not ultra vires its functions under its enabling Constitution.
ISSUE Eight (Grounds 10 and 11)
Was the trial Court right, when it granted the reliefs sought by the Respondent, including the award of damages in an excessive sum of N20,000,000.00 (Twenty Million Naira), when the Respondent did not prove its claim, and when assessment of the quantum of the said Sum was based on the inadmissible hearsay evidence of PW2.
Issue Nine (Ground 12)
Whether the trial Court was right when it dismissed the Appellants Counter-claim, without evaluating the evidence led in proof of same.”

The Learned Counsel to the Respondent M. J. NUMA, ESQ. adopted the nine issues nominated by the Appellant. The appeal will be determined on the issues raised by the Appellants.

PRELIMINARY OBJECTION
It is relevant to say that Respondent filed Preliminary Objection which reads:-
“MOTION ON NOTICE CHALLENGING GROUND 1 AND

ISSUE 1 ON APPELLANT FURTHER AMENDED NOTICE OF APPEAL AND APPELLANT’S JOINT BRIEF OF ARGUMENT”

The Respondent’s learned Counsel is of the view that additional ground of appeal raises fresh issue not covered by any evidence on record of appeal.

The said Motion on Notice and its grounds reads:-
“1. AN ORDER of this Honourable Court striking out grounds one of the further amended Notice of Appeal deemed properly filed and served on the 27th day of April, 2017 for being incompetent.
2. AN ORDER discountenancing the arguments advanced in respect of the issue one distilled from the said ground one as contained in the appellant’s brief of argument at pages 4-8 for being equally incompetent being borne out of an incompetent ground.
3. AND such further order as this Honourable Court will deem fit to grant in the circumstance.
GROUNDS FOR THE APPLICATION.
1. That on the hint of this Honourable Court on the 21th day of April 2017, the respondent/applicant reserved its objection to the competence of the appellants’ fresh ground of appeal and the related issue not contained in the record of appeal.
2. That the fresh Grounds one of

appeal involves a new issue of fact or at best of mixed law and fact not canvassed at the lower Court thus extraneous and/or not supported by the records of appeal.
3. That this Court is bound by the record of appeal transmitted to it from the lower Court.
4. That the issues agitating in the said grounds require adducing further oral evidence of facts not contained in the record of appeal.
5. That the issue agitating in the said ground might also requires calling for expert evidence as to the regularity of a signature in contention.
6. That the arguments advanced with respect of ground one are founded on speculations leaving the Court to conjecture as to the regularity of the signature of counsel.
7. That the fresh issue had it been raised at the lower Court the respondent would have answered to it.
8. That the refusal to consider the fresh issue will not occasion any miscarriage of Justice to the appellant on the merit of this appeal.
9. That the fresh issue of law is totally incompetent as it is a disingenuous attempt to map out an entire new line of defence on appeal based on technicality.”

The impugned ground One

with its particulars read:-
“GROUND ONE (FRESH ISSUE) – ERROR IN LAW: The trial Court erred in law and occasioned a grave miscarriage of Justice when it heard and delivered Judgment, on the Respondent’s Writ of Summons, which was not signed by a Legal Practitioner whose name is on the Roll of Legal Practitioners at the Supreme Court.
PARTICULARS OF ERROR
a. Respondent instituted this action on the 23rd of October, 2009, and the Statement of Claim, Witness Statements on Oath, List of Witnesses, List of Documents to be tendered at trial and Certificate of Pre-action Counseling, were signed by the learned Senior Advocate. Karina Tunyan, SAN.
b. The Respondent’s Writ of Summons was not signed and settled by a Legal Practitioner whose name is on the Roll of Legal Practitioners at the Supreme Court.
c. The Writ of Summons was signed by an unnamed person, who claimed to have signed for Chief Karina Tunyan, SAN, without disclosing his name and designation.
d. The Judgment of the trial Court delivered on the 17th day of November, 2011, on a Writ of Summons not signed by a Legal Practitioner whose name is on the Roll of Legal Practitioners

at the Supreme Court was given without Jurisdiction.
e. The Judgment of the trial Court delivered upon an invalid Writ of Summons is null and void and of no legal effect.”

The learned Counsel to the Respondent stated that the entire issue borders on the regularity of the signature of CHIEF KARINA TUNYAN, SAN who signed the Originating Process. He submitted that this is an issue of fact which requires further evidence if not evidence of an expert to dispute the signature in contention. That it will occasion no injustice to the Appellants if the issue is not countenanced. That it is too late in the day for Appellant to raise the issue. He relied on the cases of:-
1. THE VESSEL M V. NAVAL GENT. & ORS V ACI LTD (2015) LPELR-25972 CA, and BULLET INTL (NIG) LTD V OLANIYI (2016) 10 NWLR (PT. 1521) 580 AT 608 B – E.
That it will require oral evidence to prove the allegation.

The Appellant responded to the Motion and argument canvassed on it in their Appellants’ ARGUMENT IN OPPOSITION TO RESPONDENT’S MOTION/REPLY BRIEF filed on 7/2/2018 deemed filed on 10/4/2018.

The learned Counsel to the Appellant submitted that no further evidence

is required apart from what is contained in the record of appeal particularly as the issue in contention concerning signature of learned Counsel on the Writ of Summons is already before the Court and enough to resolve the issue of jurisdiction inherent therein. He submitted that grave injustice will be suffered by the Appellants if the issue is discountenanced.

He reiterated his submission that facts and evidence on record in the record of appeal can fully and effectually resolve this issue of jurisdiction with respect to which this Court has already granted leave on 27/4/2017.

I am of the firm view that the issue raised in Ground One of the Further Amended Notice of Appeal and Issue 1 as distilled in the Appellants’ Joint Brief of Argument touches and concerns jurisdiction.
The settled position of the law is that it does not matter how issue of jurisdiction is raised, once it is raised the Court will consider it as it can be raised at any stage of proceedings at the trial Court or Appellate Court. See BARRISTER ORKER JEV & ORS VS SEKAN IZUA IYORTOM & ORS (2014) 14 NWLR (PART 1428) 575 AT 608 D -E per OKORO, JSC who said:-

The Respondent’s application seeking to strike out ground one for being incompetent is hereby dismissed. No Order as to Costs.

ISSUE 1
Whether the Judgment of the trial Court was delivered without jurisdiction, considering that the Writ of Summons upon which the suit was commenced, was not signed by a Legal Practitioner whose name is on the Roll of Legal Practitioners in the Supreme Court.
The bone of contention here is that the Plaintiff commenced the suit vide a Writ of Summon dated 23/10/2009 which was not signed by a Legal Practitioner whose name is on the Roll of Legal Practitioners in the Supreme Court in breach of Sections 2 and 24 of Legal Practitioners Act, 2004. The Appellant contended that it is not discernible whether the person who signed the writ on behalf of KARINA TUNYAN, SAN have his name on the Roll

of Legal Practitioners entitled to practice in Nigeria. That being an originating process which is not signed as required by law it is incompetent and robbed the Court of trial jurisdiction to have entertained the matter. The learned Counsel to the Appellant KAUNA PENZIN urged the Court to resolve issue one in Appellant’s favour.

On his part, the learned Senior Counsel to the Respondent submitted that contrary to the content of the Appellants that the writ of summons which is the foundation of the present appeal was signed “for and on behalf” of KARINA TUNNYAN, SAN by an undisclosed and unidentified person, the writ was indeed Senior Counsel, CHIEF KARINA TUNNYAN, SAN who is a Legal Practitioner whose name is on the roll of the Legal Practitioners and member of the inner Bar making it valid and that the lower Court rightly assumed jurisdiction.

RESOLUTION OF ISSUE 1
A suit or an action must be originated or initiated in full compliance with all relevant laws and procedure or due process as an incompetent Originating Summons or Writ of Summons cannot confer or give jurisdiction to Court or Tribunal to adjudicate on the subject matter of the action or

suit.
1. JAFAR SANI BELLO V ABBA K. YUSUF & ORS (2019) 15 NWLR (PART 1695) 250 AT E – H per KEKERE-EKUN, JSC
2. ALHAJI FATAI O. YUSUF VS MOBIL OIL NIGERIA PLC (2020) 3 NWLR (PART 1710) 1 AT 15 F- H per OKORO, JSC who said:
“In other words, the Court will have no Jurisdiction to hear and determine an incompetent process. I made this point very clear in Union Bank of Nigeria Plc. v. Alhaji Sadiku Lawal (2011) LPELR – 8879 (CA) at page 10 paragraphs E – F; (2012) 6 NWLR (Pt. 1295) 186 when I stated as follows:
“Where however a Court process is fundamentally defective ab initio, it is incompetent and does not exist at all in law. Consequently, such an incompetent process cannot be amended.”
The truth must be told that where a writ of summons or statement of claim is incompetent, as in this case, the Court would lack the Jurisdiction to entertain the matter. Where the matter is heard and determined on the incompetent process, the Court would have engaged in a wasteful judicial exercise, no matter the efforts put in it. The entire proceedings are void and liable to be set aside.”
3. MOHAMMED KIDA V A.D. OGUNMOLA (2006) 13 NWLR

(PART 997) 377 AT 394 F – G per MUSDAPHER, JSC later CJN, RTD) who said:
“In my view, the validity of the originating processes in a proceeding before a Court, is fundamental, as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside and a nullity. It clearly borders on the issue of Jurisdiction and the competence of the Court to adjudicate on the matter. Such issue can be raised at any time and it can never be alien to the proceedings as claimed by the learned trial Judge.”

will be liable to be struck out. See;
1. SLB CONSORTIUM V. NNPC (2011) 5 SCM 187 AT 197 – 198 per ONNOGHEN, JSC later CJN Rtd.;
2. DR. AJEWUMI BILLY RAJI VS UNILORIN & ORS (2018) 15 NWLR (PART 1642) 220 AT 235 B – D per PETER-ODILI JSC where my Lord said:-
“The position stated above is reiterated for emphasis by this Court in the case of Okafor v. Nweke (2007) All FWLR (Pt. 368) 1016 at 1026 – 1027; (2007) 10 NWLR (Pt. 1043) 521 to the effect that a process as the notice of appeal must be signed by a legal practitioner known to law, thus the identity of the person who signed the notice of appeal must be disclosed to assist Court to confirm that the person who signed the document is a legal practitioner indeed. What is meant by this policy is not to await the clarification by affidavit as to the identity of the owner of the signature on the particular process. What the appellant is asking of the Court is to authenticate an absurdity; where the Supreme Court has to suspend action and ascertain first of all that the person who signed the starting point of an appeal when it has not been signed by the appellant himself but a person who

claims to be a legal practitioner, that he is indeed a legal practitioner. Such a surveying duty is not for the Court and nothing has happened yet to show that it is likely to be commenced now.”
On page 236 D – H RHODES-VIVOUR, JSC said:
“Where a notice of appeal is not signed, and the Court proceeds to hear the appeal, it would be as if the hearing never took place. This is so since one cannot put something on nothing and expect it to stand. See UAC v. Macfoy (1962) AC 152.
In SLB Consortium Ltd. v. NNPC (2011) 4SC (Pt. i) p. 86; (2011) 9 NWLR (Pt. 1252) 317 at pg. 337-338, paras. G-A.
I said that:
“Once it cannot be said who signed a process it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot overrule the law (i.e. the Legal Practitioners Act). All processes filed in Court are to be signed as follows: Firstly, the signature of counsel, which may be any contraption. Secondly, the name of counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of Legal Firm.
The notice of appeal was signed by “someone” on behalf of Dap Akinlaja Esq. That “someone”

deposed to an affidavit explaining the blunder.
On looking at the notice of appeal it is impossible to say who signed it for Dayo Akinlaja Esq.
On this fact alone the notice of appeal is a nullity. Deposing to an affidavit to explain irredeemable flaws in the signing of the notice of appeal is a worthless exercise since processes must be seen to have been properly signed, just by looking at it and not by examining affidavit evidence.”
A close perusal or examination of the signature on the Writ of Summons which initiated this action was signed for someone to the far left of page 2 of the Record of Appeal.
Though the name of Chief KARINA TUNYAN, SAN is stated to have issued the Writ but the signature aforesaid was not on his name, It is the duty of the Registrar of the Court below to issue writ of summons while the name of the learned Counsel who prepares and signs the writ of summons must be stated on the Writ with his address and signature properly signed on top of his name. The learned Counsel to the Respondent strongly submitted that the signature on page 2 of the Record is that of KARINA TUNYAN, SAN. However anyone can see clearly on

page 4 of the Record the signature of Chief KARINA TUNYAN, SAN on Certificate of Pre-Counseling and on page 17 of the record showing the signature of the learned Silk, his name, his Firm name, Address and Telephone number. The Signature on the writ of summons is not identifiable and cannot be ascribed to any Legal Practitioner and same is not in accordance with the prescription laid down by the Supreme Court. The contraption or signature relied upon as that of learned Silk is strikingly dissimilar to the signature on pages 4 and 17 of the record. There is no signature on top of the name of the learned Silk to the Respondent on the writ of Summons. I hold that this is fatal and it renders the writ of summons which initiated this action incompetent. See CHIEF ALBERT ALIKOR & ORS v. REV CHIEF M. W. OGWO & ORS (2019) 15 NWLR (PART 1695) 331 AT 364 H T- 366 per ABBA AJI, JSC who said:-
“Once it cannot be said who signed a process it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot overrule the law (i.e. the Legal Practitioners Act). All processes filed in Court are to be signed as follows: “Firstly, the signature of

counsel, which may be any contraption. Secondly, the name of counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of Legal Firm.
The notice of appeal was signed by “someone” on behalf of Dap Akinlaja Esq. That “someone” deposed to an affidavit explaining the blunder. On looking at the notice of appeal it is impossible to say who signed it for Dayo Akinlaja Esq. On this fact alone the notice of appeal is a nullity.”
I am conscious of the decision in the case ofHIS ROYAL HIGHNESS OBA S. A. ADEGBOLA & ORS VS MR JAMES ALOKUNDE IDOWU & ORS (2020) 7 NWLR (PART 1722) 94.
The way and manner the signature was executed on the writ in the case is significantly different from the mode of signing on the writ of summons that founded this action. This was made clear on page 117H – 119A where my Lord SANUSI, JSC said:-
“To my mind, therefore all the cases cited and relied on by the learned senior counsel for the appellants are not applicable to the situation in the instant case where as I stated supra, all the relevant conditions required by Section 2 of the Legal Practitioners Act are met, as they all exist in the writ

of summons, which is the originating process and which was clearly signed by “Lasun Sanusi” followed by the chambers i.e. Lasun Sanusi & Co”.
This Court had hitherto given insight on how compliance with the provisions of Section 2 of the Legal Practitioners Act can be said to have been met in the case of SLB Consortium Ltd. v. NNPC (2011) 4 SC (Pt. 1) 97, (2011) 9 NWLR (Pt. 1252) 317 where Rhodes- Vivour, JSC stated thus:-
“What then is so important about the way counsel chooses to sign processes. Once it cannot be said who sign (sic) a process it is incurably bad, and rules of Court that seems to provide a remedy are of no use as a rule cannot override the law (i.e. Legal Practitioners Act) All processes filed in Court are to be signed as follows:-
First, the signature of counsel, which may be by any contraption. Secondly, the name of the counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of the legal firm.
See also Reg. Trustees Apostolic Church v. Akindele (1967) NSCC (Vol.5) 117, (1967) SCNLR 205 where this Court also held that a Notice of Appeal which mentioned the Legal Practitioner’s name

as J.A. Cole & Co and the said process was signed as J.A. Cole for J.A. Cole & Co was held to be in order and correct.
As I said above, all the decided authorities relied on by the learned silk for the appellants are not apposite to the situation in this instant case with regard to the competence of the originating process filed in the suit wherein, learned counsel had signed the writ of summons and stated his name as LASUN SANUSI, and appended his signature on same before stating below his name, the name of his firm and the address where the law firm is situate and as such had duly complied with the conditions provided in Section 2 and Section 24 of the Legal Practitioners Act as adumbrated ably and adequately in the case of SLB Consortium v. NNPC (supra).
The resultant effect of all that I have posited above is that the writ of summons, which is the originating process, was duly issued in compliance with the Act and is therefore competent.
It is in view of the above that I am inclined to agree with the lower Court when in its Judgment, it stated as follows:-
By the clear replica of the process at page 153 it is discernible,

indeed, it is distinct that the originating process was duly signed by a legal practitioner whose name and firm name were separately stated and the process duly signed.”
Issue 1 is resolved in favour of the Appellant.

ISSUE 2
Whether the lower Court had jurisdiction to hear and determine the Respondent’s action in libel, when the Appellants are public officers/offices, in line with the decision of the Court of Appeal in Omega Bank Plc v. Govt. Ekiti State (2007) 15 NWLR (Pt. 1061) p. 455 that public officers/offices cannot sue and be sued in libel.

The substratum of the submission of the Appellant’s learned Counsel on this issue which also touches and pertains to jurisdiction of lower Court can be found in paragraph 4.9 of the Appellant’s Brief of Argument wherein it is stated that:-
“The Respondent’s action at the lower Court was based on the tort of libel. In the case of OMEGA BANK PLC VS GOVT. OF EKITI STATE (2007) 16 NWLR (PART 1061) P. 455, the Court of Appeal decided the issue of competent parties in an action in libel. The Appellate Court stated clearly that the public officer/offices cannot sue or be sued in libel.”

In his response to the above submission, M. J. NUMA, ESQ who settled the Brief of Argument on behalf of Respondent, argued that the case is not on all fours with the facts in this case. On page 9 paragraph 4.20(b) of Respondent’s Brief the learned Counsel argued thus:-
“b. In the OMEGA BANK decision this Court decided that an action in libel cannot be maintained by a public office or officer. Unlike the facts in this case this Court never stated in his lead judgment in OMEGA BANK that an action in; libel cannot be maintained by a public office who is a Juristic person Big difference. (Emphasis mine).

RESOLUTION OF ISSUE 2
I have read the case of OMEGA BANK (SUPRA) and I believe that the facts of this case are quite different from the facts of the case at hand. A case is only an authority for what it decided based on the facts and circumstances.
The right of access to Court has been given to all persons or authority in this Country to approach the Court and sue whoever is perceived to have infringed or threatens to affect their rights and obligations of other persons as protected under Section 6(6)(b) of the Constitution of Federal Republic of Nigeria 1999 as amended

which provides that:-
“The Judicial powers vested in accordance with Section 6(6) of the Constitution.
“6(6)(b) shall extend to all matters between persons or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto for the determination of any question as to the civil rights and obligations of that person.”
There is nothing in the law preventing the Appellants from suing or being sued in the appropriate Court in the land. This is in consonance with the Federal Road Safety Act Cap F LFN 2004, Section 1(1) thereof which provides:-
“There is established for Nigeria a Federal Road Safety Commission (in this Act referred to as “the Commission”) which shall be a body corporate with perpetual succession and a common seal, and may sue and be sued in its corporate name and whose members shall exercise the functions specified in this “Act”.
The Federal Road Safety Act Cap F19 LFN 2004 gives the Appellant the toga of legal personality that can sue and be sued.
Issue 2 is resolved against the Appellant.

Resolution of issue one against the Respondent is enough to

terminate this appeal in favour of the Appellants because the lower Court lacked the jurisdiction to have entertained the suit for having been commenced by an incompetent process.
It is now settled to the effect that if this Court should find in any matter that comes before it on an appeal, that it has no jurisdiction to entertain it either because the lower Court is devoid of jurisdiction or that the appeal is afflicted by any other legal malaise, it should nonetheless consider the merit of the appeal since this Court is a penultimate Court. There would be no need for the apex Court to send the appeal or the matter back to this Court for a rehearing if this Court is found to be wrong on point of jurisdiction. See.
1. ISAAC OBIUWEUBI V CBN (2011) 7 NWLR (PART 1247
2. ALHAJI JIBRIN TSAH VS INEC & ORS (2014) 12 SCM (PART 2) 297 AT 335 G-I TO 336A per RHODES-VIVOUR, JSC.

NOW TO THE MERIT OF THE APPEAL ON ISSUES 3 – 9.
Issue Three (Grounds 3 and 4)
Whether from the circumstances of this case, the trial Court was right in holding that the Appellants’ publications in several newspapers were defamatory of the Respondent, when

in reaching such a conclusion, it relied heavily on the meaning of the word “risk”, out of context of the entire publications.

It is the submission of the Appellant’s Learned Counsel that there are six coterminous ingredients of libel which the Respondent must establish to succeed as stated in the case of FMBN v. ADESOKAN (2000) 11 NWLR (PART 667) 141 at 108-109 per ONNOGHEN, JCA (later CJN, RTD) as follows:
“(1) Publication of the offending words;
(2) That the words complained of refer to the Plaintiff;
(3) That the words are defamatory of the Plaintiff;
(4) Publication to third parties;
(5) Falsity or lack of accuracy of the words complained of, and
(6) That there are no Justifiable legal grounds for the publication of the words.”

That in this case the Respondent failed to establish that the words complained of were defamatory. That the Respondent failed to establish that there were no justifiable legal grounds for the publication. He submitted that the Respondent failed to establish that it is empowered by its Constitution to organize the proposed National Visual Testing and Safety Certification Scheme or produce

Examination Certificates which shall be in possession of all drivers operating any vehicle in Nigeria as Respondent sought to achieve. That Respondent’s Constitution did not empower it to raise funds by asking the general public to buy forms at the cost of N3500,00 (Three Thousand and Five Hundred Naira) each. It is also submitted that Respondent did not prove that the said venture of the Respondent is not an infringement on the Appellant’s powers as contained in the Road Safety Act 2007. That Respondent also failed to prove that the Appellants were aware of the Respondent project. He submitted that the defences of qualified privilege and justification raised by the Appellant were not dislodged by the Respondent,

Responding to issue 3, the Learned Counsel to the Respondent submitted that Respondent led cogent and credible evidence which the learned trial Judge rightly relied upon in reaching his conclusion on the nature and the effect of the publication and that the trial Judge did not place undue reliance on the word “risk” and did not isolate the word “risk” from the rest of the publication.

He relied on the evidence of PW1 and PW2 and the

exhibits marked P7, P10, P11, P12 and 15 and the objectives of the Appellant. He also relied on pages 410 and 414 of the record to contend that the learned trial Judge made faultless pronouncement in his judgment.

That DW1 and DW2 confirmed all correspondence between the Appellant and the Respondent. That the Appellants had in the past referred to them as worthy partners and as such their defence of qualified privilege or justification is defeated. That evaluation of evidence is that of trial Court and that this Court hardly interfere with evaluation of evidence by the lower Court.

RESOLUTION OF ISSUE 3
The law is trite an Appellant who wants the Appellate Court to set aside the findings and conclusion of a Lower Court or Tribunal must establish that the Court or Tribunal was influenced by extraneous facts and that the said Court or Tribunal made improper use of the opportunity of its having seen and heard the witnesses testified before it. It must be proved that the learned Trial Judge or Tribunal did not properly appraise the oral and documentary evidence placed before it. The Appellant must demonstrate that the failure on the part of the

Trial Court or Tribunal actually occasioned a miscarriage of justice. See;
1. CHIEF ALEX OLUSOLA OKE & ANOR. VS. DR. R. O. MIMIKO & ORS. (2014) NWLR (PART 1388) 332 at 397 G – H.
2. CHIEF O. B. AJIBULU VS. MAJOR GENERAL O. O. AJAYI (RTD) (2014) 2 NWLR (PT. 1392) 483 AT 502 D-H to 503A, per OGUNBIYI, JSC who said:
“The law is well established, that under our adversarial system of jurisprudence, civil cases are decided on preponderance of evidence. See Mogaji v. Odofin (1978) 3-4 SC 91. In summary, before the trial Court accepts or rejects the evidence of either side, it is expected of the Judge to construct an imaginary scale of Justice whereupon he is expected to weigh the evidence of both sides for purpose of determining to which side the pendulum will tilt; the determination which is not dependent upon number of witnesses called. It is rather the credibility that gives probative value to witnesses.
In the evaluation of evidence therefore, the central focus expected of a Trial Court is whether it made proper findings upon the facts placed before it. In other words, as long as a Trial Court Judge does not arrive at his Judgment simply

by considering the case of one party and not the other but properly evaluate both sides, the decision will not be set aside merely because he adopts a method which is novel to the usual system. The measuring yardstick is the consideration of the totality of the entire case thus arriving at the just determination of the issues in controversy. The test is that of the perception by an ordinary reasonable man. See Woluchem v. Gudi (1981) 5 SC p. 291
The Trial Court has the benefit of hearing and assessing the demeanour of witnesses. It is not within the powers of the Appellate Court to encroach upon that privilege by way of interfering with the Trial Judge’s findings unless they are shown to the perverse, unsupported by evidence or based on evidence not legally admissible.”

Where, however, it is also the contention of the Appellant that the documents tendered and forming the bedrock of the disputes between the parties, were not properly evaluated by the trial Court, this Court is in the same position as the trial Court when it comes to evaluation of documentary evidence. See CHIEF NYA EDIM EKONG VS. CHIEF ASUQUO E. OTOP & 7 ORS (2014) 11 NWLR

(PART 1419) 549 at 573 F – H per OKORO, JSC who said:
“It is trite that all documents tendered before a Court at the trial of a case is part and parcel of the evidence to be considered in the determination of issues before the Court. Such documents usually referred to as exhibits are subject to scrutiny and to be tested for credibility and weight by the trial Court. Where the trial Court fails to examine documents tendered before it, an appellate Court is in a good position to evaluate such exhibits. See Ayeni v. Dada (1978) 3 SC 35; Bamgboye v. Olarenwaju (1991) 22 NSCC (Pt. 1) 501; (1991) 4 NWLR (Pt. 184) 132. I think since exhibit C was tendered before the trial Court and was part of the record of appeal before the Court below, the Justices of that Court were eminently qualified to draw such inferences as they found fit and proper so to do.”

There is no doubt that in libel action the learned trial Judge must read the entire words contained in the document alleged to be libelous or defamatory as a whole. The words therein contained should not be read in convenient installments as this will truncate the real meaning or intention the alleged

defamatory document intends to convey to the third party or general public.
The Respondent had contended that the “publication was malicious and reckless” and established that fact before the lower CourtIt must be borne in mind that the Appellants in their statement of Defence had raised defence of qualified privilege. They also pleaded that they – Appellants – did not authorize the Respondent to embark of any proposed National Visual Testing and Safety Certification Scheme for motorists all over Nigeria as it is a violation of the Appellants duties under the law establishing them that is Federal Road Safety Commission Establishment Act 2007 Sections 3-10 thereof.
The Respondent failed to file any Reply to the Appellants Statement of Defence and Witness Statement on Oath contained on pages 196 – 207. The Appellants also pleaded that the Respondent lacks the power to conduct and or carry out a National Visual Testing and Safety Certification for Motorists all over Nigeria.
I think it is here relevant to reproduce paragraphs 15 – 23 of the Appellant(s) Statement of Defence showing clearly the defence of qualified privilege and justification. They

are as follows:
15. The Defendants caused the said publication to be made in order to inform the general public who wrongly believed that the 1st Defendant was involved in the Plaintiff’s Visual Testing Certification Scheme.
16. The Defendants never defamed the Plaintiff in any manner whatsoever.
17. The Plaintiff lacks the power to conduct and or carry out a National Visual Testing and Safety Certification Scheme as advertised by the Plaintiff.
18. The publication by the Plaintiff was perceived by the 1st Defendant as an usurpation of the statutory functions of the FRSC (1st Defendant) especially those enshrined in Section 10 Sub-section 3 particularly’ paragraphs (d), (e), (n) of the Federal Road Safety Commission (Establishment) Act, 2007.
19. The powers claimed by the Plaintiff in the said advertisement is ultra vires the functions and or powers of the Plaintiff.
20. The advertisement will either create the impression that the Plaintiff had sought the co-operation of the 1st Defendant prior to the said advertisement or that it had the power to conduct and issue certificates in respect of her proposed National

visual testing scheme.
21. The claim by the Plaintiff that it will employ Thirty Thousand (30, 000) professionals to be engaged in road safety activities gives the impression that the Association is setting up a parallel road safety organization. The figure far exceeds that of the 1st Defendant (a body statutorily vested with the functions of road safety and regulations) which presently has a workforce of less than twenty thousand (20, 000) employees.
22. The various publications made by the 1st Defendant were neither defamatory, malicious nor were they intended or used to lower the reputation of the Plaintiff.
23. The various publications made by the 1st Defendant were made in good faith and in discharge of the 1st Defendant’s duty to the members of the general public who inundated the 1st defendant with inquiries as to her involvement in the Plaintiff’s advertised National Visual Testing and Safety Certification Scheme. ”
It behoved the Respondent to file a Reply to the Appellants Defence to plead express malice against the Appellants for the publication. The Respondent is deemed to have no answer or response to the defence raised and

set up in the Appellants pleading. See
1.CHIEF S. B. BAKARE ANOR VS. ALHAJI ADO IBRAHIM (1973) 1 ALL NLR (PART 1) 751 at 757 – 758 the Supreme Court per IBEKWE Ag. JSC (as he then was) held:
“The law in its wisdom insists that words which are capable of leaving a stain on the reputation of another should not, in the absence of lawful excuse, be uttered or published of and concerning a person. Where defamatory words are published without lawful excuse, the law conclusively presumes that the defendant is motivated by what is often described as malice in law; accordingly, the plaintiff is usually not required to give particulars of the facts on which he seeks to rely in support of the allegation that the words were published ‘maliciously.’
We think it is necessary to stress here that the word ‘maliciously,’ as usually pleaded in defamation actions, has a technical meaning. We think that in pleadings, sufficient care should be taken to draw a clear distinction between this ‘technical malice,’ if we may say so, and actual malice. In our view, each has a definite place in the pleadings, and each also has a distinct role to play at the trial. It

should always be borne in mind that once the plea of fair comment or qualified privilege is made out, as it has been in the present case, the inference of malice is rebutted; and the burden is thrown upon the plaintiff of showing and proving ‘express malice’ against the defendants. This is generally known as ‘malice in fact,’ and to be able to discharge this onus at the trial, it is important that the plaintiff should deliver a reply, alleging express malice and giving particulars of the facts from which such malice is to be inferred.”
On page 759 his lordship said on page 759 that:
“We are decidedly in support of the well-known rule of pleading and practice that, in an action for defamation, where it is intended to allege express malice in answer to a plea of fair comment or qualified privilege, it is necessary to deliver a reply, giving particulars of the facts from which express malice is to be inferred. And since express malice defeats the plea of fair comment or qualified privilege, we think it is only fair and indeed, quite in keeping with the principles of Justice, that the defendant, whose defence is fair comment or qualified privilege, ought

not to be exposed to any kind of surprise. Moreover, it is evident that ‘malice’ has a wide meaning, and is perhaps incapable of complete definition.”
And on page 760 – 761 his lordship also said:
“There is another angle to this case. As we indicated earlier on in this Judgment, the learned trial Judge did find that the facts alleged in support of the plea of fair comment had been substantially proved to be true. That in effect means that the presumption of malice had gone, and the defence of fair comment should stand, unless actual malice could be established against the defendants. Obviously, the burden of establishing “express malice” rested squarely on the plaintiff and at no time did it shift to defendants; nor was it ever discharged. On the whole, we fail to see how the plaintiff can succeed on this score.”
The failure of Respondent to file a Reply to the Statement of Defence to plead express malice against the Appellants was fatal to Respondent’s case as Plaintiff at the Court below.
The law is also settled that in the interpretation of document like the publication in contention in this case exhibits P16, PI7, P18, P24 and P21 must be

construed as a whole giving them literal meaning.
On page 410 of the record the learned trial Judge said:
“The combined effect of the foregoing can be traced to the action by the Bank as revealed in the testimony of PW2 who went to the Bank to purchase the application form and a Bank staff warned him to the contrary and that the sale of the forms had been stopped due to the publication by the Defendants.
Further to this is the action by Fidelity Bank of stopping or and dishonouring the cheques by the Plaintiff to draw from her account with the Bank. See Exhibits 22, 23 and 24 respectively.
Looking at the publication and particularly the tail end where the Defendants said:
“…Any member of the public who applies to this Organization does so at his or her own risk.”
The key word here is “RISK”. What is Risk? On page 859 of New Webster’s Dictionary International Edition, the word “RISK” is ascribed with the following meaning:
“The possibility of danger, injury, loss etc. (Insurance) the possibility of loss in the case of goods covered by an Insurance policy, the possibility of such loss, a person or thing with

reference to the hazard involved in insuring him or it, a good risk at owners risk on condition that the owner bears the risk in case of loss, to run a risk or expose oneself or be exposed to danger, injury, loss etc (2) to expose to danger, injury, loss etc..”
In my humble view and having regard to that part of the publication, the Defendants are putting the general public on notice that if they deal with the Plaintiff based on the publication they are susceptible to imminent danger and loss. That therefore would create a withdrawal syndrome from any interaction or relating with the Plaintiff or ginger up a sense of reasoning to the effect of looking at whether to start, or continuing any relationship with the Plaintiff. That danger effect negated the bid by the second witness of the Plaintiff from securing a form from the Bank.”
I agreed with the submission of the learned Counsel to the Appellants that the learned trial Judge was unduly swayed by the word “Risk” contained in the publication to conclude that the publication was calculated to disparage and bring down the Respondent’s business.
If the Learned trial judge had read the

publication as a whole it would have been clear to the lower Court that the Appellants acted in the best interest of the public, its name and for the protection of their mandate under the Federal Road Safety Commission Establishment Act, 2007.
The warning that any member of the public who applied was on his own and that the Appellants will not be responsible or liable to anyone is well founded and justified.
Reading the entire publication as a whole does not reveal the imputations or innuendoes placed on the publication by the learned trial Judge. The pleadings of the parties to this appeal; the evidence of their witnesses and documents tendered do not support the findings of the lower Court. The Respondent failed to establish that the publication by the Appellants is defamatory, The publication(s) is and are not libelous and are not defamatory.
Issue 3 is resolved in Appellant’s favour.

ISSUE 4
Whether the Court was right when it failed to expunge Exhibit 25 from its record (a letter dated 11th December, 2009) but rather relied on the same in entering judgment in favour of the Respondent when the said Exhibit was made during

the pendency of the suit which was instituted on 23rd October, 2009 (Ground 5)

The contention of the Appellant is that the letter Exhibit P25 was written during the pendency of the action and admitted in contravention of Section 83(3) of the Evidence Act, 2011 which provides:-
“83(3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”

That the contents of the said letter dwelt on facts sought to be established in-this case because the letter stated that further activity on Respondent Bank Account with its Bankers had been temporarily stopped due to publications by the Appellants in Newspapers. That the learned trial Judge was wrong in placing reliance on the letter Exhibit P25 and in failing to expunge it from the record.

The Respondent’s learned Counsel conceded that pursuant to Section 83(3) of the Evidence Act its provisions prohibit admissibility or otherwise of a document made during pendency of trial. He however submitted that it is not devoid of

exception. He stated that for a document to be caught up by this provision it must have been made by a person interested in the outcome of the proceedings in anticipation of litigation.

RESOLUTION OF ISSUE 4
The entire content of Exhibit P25 was reproduced in the judgment of lower Court pages 388 – 389 of the record of appeal.
The content reads:
“December 11, 2009.
The Chairman/Chief Executive
Risk & Accident Prevention
Society of Nigeria.
Suit 5C Sabondale Complex
Jabi,
Garki, FCT, Abuja
ATTN: NWIKE EMMANUEL B.
Dear Sir,
RE. CLARIFICATION ON STATUS OF ACCOUNT NUMBER 029415010000055 RISK AND ACCIDENT PREVENTION SOCIETY OF NIGERIA RAPSON
We refer to your letter with reference No. RAPSON/ FDB/VOL.11902 dated 25th November 2009.
Please be informed that your aforesaid account with us is presently active and devoid of an encumbrance.
As regards the returned cheques attached to your foregoing letter, you will recall that the Federal Road Safety Commission (FRSC) placed an advert in the Guardian Newspaper of 14th July, 2009 disclaiming any knowledge of the activities of RAPSON and

warning members of the public that any dealing with RAPSON was at their own risk.
You will also recall that all the funds that came into your account was as a result of inflow from the sale of your employment application forms to members of the public through the various branches of our Bank and as responsible Bank we owe a statutory duty of care to the public to ensure that the said funds are safe.
The returned cheques were presented for payment at the time the misunderstanding between your organization and FRSC was still raging, we were therefore compelled as a responsible corporate citizen to temporarily stop further activity on the account until the issues were resolved.
If however the funds you sought to withdraw had been directly deposited by you, we would have had no reservation in allowing you to withdraw same since its funds will merely be going back to source, but this was not the case. Our action was meant to protect members of the public who bought your application forms through us, safeguard your image as a customer of the Bank and also guard against the regulatory authorities visiting us with sanctions.
Thank you.
Yours faithfully,<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

For: Fidelity Bank Plc
Signed
Authorized signatory
Signed.
Authorized signatory”

The above letter Exhibit P25 was triggered by Exhibit P24 written by the Respondent to the Fidelity Bank on why its cheques were dishonoured. Both Exhibits P24 and P25 were written during the pendency of this action at the lower Court. Exhibit P24 was written on 25th November, 2009. There is no dispute between the parties that both letters came into existence during the pendency of this suit leading to the appeal herein. Exhibit P25 is contingent on Exhibit P24 and I am of the firm view that both letters Exhibit P24 and P25 are caught in the shackle of Section 83(3) of the Evidence Act and the Respondent and the writer of Exhibit P25 are persons interested in the outcome of the proceedings initiated by the Respondent. The letters were no doubt written to aid the postulated case of the Respondent as laid out in the Statement of Claim and Witness Statement on Oath of PW1. The letters contained all facts pertaining to the dispute between the parties. The said Exhibit P25 is clearly inadmissible and the learned trial Judge ought to have expunged it from the

record or treated Exhibit P25 as of no probative value. No finding can be anchored on it and the trial Judge ought not to have relied upon it to find in favour of the Respondent. See;
1. CSP L. L. ANAGBADO V ALHAJI ID’FARUK (2019) 1 NWLR (PART 1653) 292 AT 308 D – H who said:
“In this instant case, the trial Court had carefully considered the documents produced by the plaintiff/respondent, namely exhibits P1 -P8 and also compared or weighed alongside them with exhibits 02 and 03 which are the documents of title produced, tendered and relied on by the defendant, (now appellant) to contest the plaintiffs/respondent’s claim. After analysing the entire documentary evidence and evaluating them, the Court found thus; inter alia
“Exhibit P6 affirmed the allocation of the land to the respondent. It is to be noted that exhibits D2 and D3 were procured at the time the appellant had instituted the action against the respondent before the lower Court. Are exhibits D2 and D3 of any evidential value? The law is settled, documents made or produced at a time an action is pending before a Court of law by an interested party cannot be of any evidential value in the same matter

that is pending. See Abdullahi v. Hashidu (1999) 4 NWLR (Pt. 600) 638 e 645- 646, paras. G-A wherein it was held that.-
“The next issue is as to the status of exhs JJ and KK. There is no doubt that when these documents were made, pleading have been filed and served. Therefore they were made at the time of the proceedings of the case. Exh M2 is a document which on its face value appears to be government’s expression of its acceptance of the recommendation of the Judicial commission of inquiry which indicted the 1st respondent. Exhs JJ and KK with on their face seek to explain the Federal Government’s position on M2 were obviously wrongly admitted as they were made in the course of the proceedings. Therefore they are of no evidential value in assessing the worth of these documents..”
See also Asuquo v. Asuquo (2009) 16 NWLR (Pt.1167) 225 at 1252.”
The lower Court finally affirmed the finding of the trial Court that exhibits D2 & D3 which are the documents relied on by the appellant/defendant in defence of the suit and also in proof of his counter claim as inadmissible and therefore of no evidential value. I think the two lower Courts are

flawless in such finding and cannot be faulted hence I accordingly endorse such finding. ”

That is not the end of the matter, the document Exhibit P25 was tendered howbeit with consent of the parties by learned Senior Counsel to the Respondent from the Bar without the maker of Exhibit P25 or its employee or staff testifying on Exhibit 25. No one was examined and cross examined on the document. This is evident on pages 375 – 376 of the record where the following transpired viz:-
“Chief Tunyan SAN – The case is for continuation of the Plaintiffs case. We subpoena a witness from Port Harcourt to testify and produce a document. The witness has produced the document and I have shown a copy to the defence Counsel. We have agreed to tender same from the bar. The document relates to document pleaded in paragraph 30, 1 and 32 of the statement of claim: I hereby apply to tender same with the consent of the Defendant from the bar.
Mr. Osigwe -I have no objection. We agree that the document be tendered from the bar as Exhibit.
Court – By consent of Counsel the document with the heading – Re-clarification on status of account number 029415010000055 RISK

AND ACCIDENT PREVENTION SOCIETY OF NIGERIA[RAPSON] dated 11th December, 2009 tendered from the bar is admitted as Exhibit P25.
Signed:
Hon. Judge.
18/10/2010.”
It was the learned Senior Counsel to the Respondent who informed the Court the part of the Respondent’s case to which Exh. P25 related, namely paragraphs 30, 31, 32 and 34 of the Statement of Claim all of which read:-
30. The plaintiff avers that the Fidelity Bank after seeing the publication frozen the plaintiffs account No. 029415010000055 with it.
31. The plaintiff avers that after the publication, several of its cheques were dishonoured including the one issued on 15th and 30th September, 2009 in favour of NICON LUXURY HOTEL and BINA PACKAGE. The said cheques dated 15th and 30th September, 2009 are hereby pleaded.
32. The plaintiff avers that the sole reason for freezing of the account was that Federal Road Safety Corps published that this Organization is dubious, fraudulent, a cheat, dishonest and not known to the law.
33. The plaintiff avers that due to this freezing of the account the organization has no access to its account and funds.
34. The plaintiff

avers that other losses it has suffered as a result of these publications is that, it cannot transact business with people and its clients.”
The Appellant called no witness to-utilize Exhibit P25 or to relate Exhibit P25 to the facts pleaded in the said paragraphs of Respondent’s pleading mentioned above.
There is nothing in Exhibit P25 stating that Appellants referred to the Respondent as “dubious, fraudulent, a cheat, dishonest and not known to the law”. See;
1. IKPEAZU V. OTTI (2016) 8 NWLR (PT. 1513) 38 AT 93 B per GALADIMA, JSC who said:-
“It is settled law that a party who did not make a document is not competent, to give any evidence on it. This is the situation here PW19 did not make Exhibit PWC2, she cannot competently tender it. The maker must be called to testify to credibility and veracity.”
2. UDOM GABRIEL EMMANUEL VS UMANA OKON UMANA & ORS (2016) 12 NWLR (PART 1526) 270 AT 286 G – H TO A – B per NWEZE, JSC who said:-
“However, I wish to further emphasize on the rather reckless behavior of the Court below in refusing to be guided by the decision of this Court but relied on its own decision to decide that it was

unnecessary to call the makers of documents exhibits 317 and 322 to testify in this case. The law is well settled that documents produced by parties in evidence in course of hearing are to be tested in open Court before the Court can evaluate them to determine their relevance in the determination of the case upon which the documents are relied upon. For this reason, any document tendered from the bar without calling the maker thereof—attracts no probative value in the absence of opportunity; given to the other party (to cross-examine for the purpose of testing its veracity. See Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 at 322-323 which the Court below refused to apply in place of its own decision in Aregbesola v. Oyinlola (2011) 9 NWLR (Pt. 451…”
Exhibit P25 is nothing but documentary hearsay. See SENATOR RASHIDI ADEWOLU LADOJA VS SENATOR ABIOLA A. AJIMOBI & ORS (2016) 10 NWLR (PT. 1519) 87 AT 146 F – H TO A – B PER OGUNBIYI, JSC who said:-
“This Court in the case of Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 at 323, 332 drove home the point when it held “Documentary evidence, no matter its relevance, cannot on its own speak

for itself without the aid of an explanation relating its existence.”
At page 6146 of the record, the lower Court found that PW1, not being the maker of exhibits 1 – 192, 201 and 203-216 was not competent to lead evidence on the contents of those documents. It is also held that PW 1, not being a polling unit or ward agent for the appellant was not privy to the making of any of the electoral forms or documents neither was he present when they were made. This was how their Lordships concluded on PW1.
“Any evidence so adduced by him as to the contents of those documents would be hearsay and therefore inadmissible.”
The view taken by the lower Court cannot be faulted, moreso where the appellant has not presented any cogent argument to the contrary upon which this Court may be invited to interfere with the well reasoned finding of the lower Court. Premised on the unassailable and the detailed review of the evidence of PW1 by the lower Court therefore, it was proper that it upheld the decision of the trial tribunal in rejecting the report/analysis qua opinion of PW 1 . ”
Issue 4 is hereby resolved in Appellant’s favour.

ISSUES 5 & 6
Issue Five (Grounds 6 and 8)
Whether the trial Court was right, when it dismissed the defences of qualified privilege and justification, put up by the Appellants, even when the burden of proving express malice had shifted to the Respondent but it failed to discharge same, by filing a Reply to the Joint Statement of Defence.
Issue Six (Ground 7)
Whether the trial Court was right when, instead of considering the defence of qualified privilege raised by Appellants, it considered the defence of fair comment, which was never raised by the Appellants.

The learned Counsel to the Appellants stated under issue 5 that both Appellants and Respondent are engaged in Road Traffic matters and that they pleaded in paragraph 13 – 15 that they had a legal, moral and special duty to inform the general public that they were unaware of the project the Respondent embarked on by way of information to the public and to guide members of the public accordingly, the fact that Appellants were not part of the National Visual Testing and Safety Certification Scheme and that Appellants are not connected with it.

That the Appellants raised the defence of

qualified privilege and led evidence on it as contained on paragraphs 14-16 of witness statement on oath of the Appellant’s DW1. That the Respondent failed to file Reply to the said defence of qualified privilege and did not cross examine the DWs 1 & 2 on his evidence.

On what must be established by the Appellant learned Counsel stated that in order to sustain the defence it must be shown that there exist between the maker of statement and the person to whom it was made that the defence could be negative by evidence of actual or express malice. That Respondent ought to have filed a reply to debunk Appellants’ position.

Under issue 6 which also deals with whether instead of considering the defence of qualified privilege the trial Judge was not wrong in considering defence of fair comment which learned Counsel to the Appellants said they did not raise. He relied on page 413 of the Record. He submitted that a Court cannot make case for the parties. That consideration of case not made by the Appellants led to a miscarriage of justice.

In his reply to issue five, the learned Counsel to the Respondent contended that the issue is a duplication of

issue 3 but nonetheless, he submitted that a defence of qualified privilege will not avail a defendant unless the statement made is fair and accurate. He argued that the publication giving rise to this instant appeal was malicious, borne out of bad faith and competition. He also submitted that the Respondent is not bound to file a Reply to substantiate malice or debunk plea of qualified privilege in so far as malice has been pleaded in the statement of claim paragraphs 20 – 30 of Respondent’s Statement of claim.
That the Appellant did not expressly plead qualified privilege or fair comment as required under Order 23 Rule 33 of the FCT High Court (Civil Procedure) Rules, 2009.

That even if the Appellant had rightly pleaded the defence still, all defence is not available to the Appellant in view of what he stated to be the unchallenged evidence on record against the Appellants.

On issue 6, the learned Counsel to the Respondent agree with the Appellants that parties are bound by their pleadings and that the Court cannot go outside the case of the parties. He referred to pages 196 – 199 of the record to contend that the Appellants did not specifically plead defence

of qualified privilege or any special defence.

RESOLUTION OF ISSUES 5 AND 6
The trite position of the law is that where new issues or special defence are contained in Statement of Defence upon which the Defendant rely for his defence, it behoves the Plaintiff to positively react to such a defence whether in ordinary civil proceedings or in a libel suit so that issues could be properly joined on the defence raised in the pleading by the Defendant.
The apex Court has in numerous cases espoused and expounded the real import, function, meaning and scope of a “Reply” as part of pleadings in Civil Proceedings. Suffice it to refer to the case of DR. RASAKI OSHODI & ORS. VS. YISA OSENI EYIFUNMI & ANOR. (2000) 13 NWLR (PART 684) 298 at 326 G-H to 327 A-C per IGUH, JSC who said:-
“The main function of pleadings is to ascertain with as much certainty as the various matter there are actually in dispute and those in which there are agreement between the parties and thus to appraise the opposing party in the action of the case the pleader is making so as to avoid any surprise at the hearing and to ascertain the issue or issues in controversy

between the parties. In this regard, the parties will be enable to settle beforehand the evidence it shall adduce at the hearing. Pleadings are closed when parties come to issue. If both the Statement of Claim and the Statement of Defence do not bring the parties to issue on all the claims, the plaintiff shall file a reply. Where no Counter-Claim, as in the present action, is filed, further pleadings by way of a reply to the Statement of Defence is generally unnecessary if the sole purpose is to deny the averments contained in the defendant’s Statement of Defence. See Aziz Akeredolu and others vs. Lasisi Akinremi and Others (1989) 3 NWLR (Part 108) 164 at 172. However, a reply may be filed to plead relevant additional facts which will make any particular defence pleaded in the Statement of defence untenable or negate the application of such defence.
A reply is the defence of the Plaintiff to the Counter-Claim of the defendant or to the new facts raised by the defendant in his defence to the plaintiff’s Statement of Claim and shall therefore be filed to answer the defendant’s averment in his Counter-Claim or to such new facts that have been raised in

the Statement of Defence. I think it may also be said that as a general rule, where because of the-defence filed, the plaintiff proposes to lead evidence in rebuttal or to raise issues of fact not arising out of the two previous pleadings, he shall in such circumstances, file a reply as he may not lead evidence of any material facts he had failed to aver in his pleadings.
See Bakare and Another vs. Ibrahim (1973) 6 S.C. 205.
(Underlined mine). ”

Paragraphs 12 to 15 of the Appellants Statement of Defence at pages 196 – 199 of the record are as follows:
“12. The claims by the Plaintiff to have powers to train and issue certificates (CERTIFICATION) in respect of the Visual Testing Scheme, is a clear contravention of the relevant provisions of the FRSC Act, since the FRSC is the only body statutorily charged with the responsibility of determining, from time to time, the requirements to be satisfied by an applicant for a driver’s licence.
13. The Defendants caused the publications the subject matter of this suit to be made in the discharge of her public duty after receiving several calls and inquiries from members of the public seeking a

clarification as to the 1st Defendant’s involvement in the Plaintiffs proposed scheme to train and issue certificates (CERTIFICATION) in respect of the Visual Testing Scheme.
14. These inquiries revealed that the members of the general public were of the belief that the plaintiffs Scheme was with the blessing and or co-operation of the 1st Defendant:
15. The Defendants caused the said publication to be made in order to inform the general public who wrongly believed that the 1st Defendant was involved in the Plaintiff’s Visual Testing Certification Scheme.”

I am of the view that the above assertions of the Appellants constitute special Defence of qualified privilege and or justification in the publication it made in the newspapers. There was no Reply from the Respondent to controvert or join issues on the defence put forward by. The only reasonable inference one can draw therefrom is that the Respondent has no answer to the facts pleaded and the defence set up against the libel action of the Respondent against the Appellants. The Respondents having failed to file a Reply to the Appellants’ defence of qualified privilege or “fair comment”

according to the learned trial Judge, the defence is deemed established by the Appellant. See CITI BANK (NIG) LTD VS MR. MARTINS IKEDIASHI (2020) 13 NWLR (PART 1741) 337 AT 365b – H TO 366 A per ARIWOOLA, JSC who said:
“In this case, the appellant had pleaded and called evidence to show that the occasion of the alleged defamation was privileged in that it owed it a duty to the sister bank to whom the cheque was returned to know why the appellant could no longer process the cheque and the reason is, as stated on the said cheque – the account was already closed, even though before its closure it was in credit. The law is that there must exist a common interest statement and the person to whom it was made. Reciprocity of interest is an essential element in the law of qualified privilege. See; Adam v. Ward (1917) A. C. 09 at 334; Ademola Atoyebi v. William Odudu (1990) 6 WLR (Pt. 157) 384 at 405; (1990) LPELR – 594 (SC).
However, the facts relied upon by the maker must be true to sustain the defence of qualified privilege. See; Hebditch v. Macllwaine (1844) Z QB 54.
It is trite law that in order to debunk or destroy the defendant’s

defence of fair comment or qualified privilege, a plaintiff must file a reply to specifically plead and call credible evidence of malice in the defendant. The respondent herein neither filed a reply to plead any element of malice in the appellant in endorsing the alleged defamatory words.
It is noteworthy that the respondent herein, did not file any reply to the amended statement of defence, earlier alluded to wherein the appellant pleaded the defence and called credible evidence to support the defence. By the state of the pleadings and the evidence led, I am satisfied that the appellant is covered with the defence of qualified privilege. The lower Court was therefore wrong to have failed to uphold the defence in favour of the Appellant.”
See also page 368 D-E where my Lord KEKERE-EKUN, JSC said:-
“An occasion is said to be privileged where there is a common interest between the maker of the statement and the person to whom it was made. A privileged occasion is an occasion where the person who makes a communication has an interest or duty, legal, social or moral, to write it to the person to whom it is made has the person to whom it is made

has a corresponding duty to receive it. See: Akomolafe v. Guardian Press Ltd. (Printers) & Ors. (2010) 3 NWLR (Pt. 1181) 338; Iloabachie v. Iloabachie (supra); Atoyebi v. Odudu (1990) 9-10 SC 150, (1990) 6 NWLR (Pt. 157) 384.”

I am of the view that the Appellants owe the public the duty and obligation to let them know that it has no hand in any scheme known as National Visual Testing and Certificate Scheme and training of motorists and to let even the Respondent know their position. The Respondent communicated to the Public through advertisement, there is nothing injurious or inimical or libelous or defamatory in the publication placed in the Newspapers just like the Respondent did when it created the impression to the public that the Appellants gave them authority to do so on their behalf. The Respondent is unable to produce any iota of evidence to show that the Appellants were the partners of the Respondent with respect to the proposed training and issuance of certificates in respect of Visual Testing Scheme the Respondent embarked upon at the relevant period.

Issues 5 and 6 are hereby resolved against the Respondent and in favour of the

Appellants.

ISSUE 7
Whether the aims and objectives of the Respondent are not a violation and infringement of the Appellants’ statutory responsibilities under the Federal Road Safety Commission (Establishment) Act, 2007 and the Respondent’s proposed National Visual Testing and Safety scheme was not ultra vires its function under its enabling Constitution.
The submission of the Appellant under issue 9 is that the Respondent’s action is a violation of its statutory functions as conferred on it under Section 10 of the Federal Road Safety Commission (Establishment) Act, 2007.

The Respondent as the Plaintiff at the Court below pleaded in paragraphs 15 – 18 of its Statement as follows:-
“15. The plaintiff avers that apart from its aims and objectives as contained in its constitution, the Federal House of Representatives’ House Committee on Governmental Affairs authorized the plaintiff vide a letter dated the 29th October 2007 addressed to it, the plaintiff entitled “Approval for Implementation of the National Drivers Visual Examination and Accident Intervention Scheme”. The said letter is hereby pleaded.
16. The plaintiff states that it

sent a letter to the Defendants dated 12th July, 2007 titled “Launching of the National Road Traffic Accident Electronic – Reporting System and Drivers Visual Examination. Scheme reference: RAPSON/VO/1/194 intimating the Defendants of the need to implement the communique and solicited their partnership for the smooth take off implementation and enforcement”. The said letter is hereby pleaded and the defendants are put on Notice to produce the said letter.
17. The plaintiff states that owing to the need to implement its scheme the communique jointly issued, its s aims and objectives and the authority given to it from the Federal House of Representatives’, advertised in the Guardian Newspaper calling for applicants to fill the vacant positions to enable it carry cut its functions. The said advert in Guardian of 10th March, 2009 and July 14th 2009 are hereby pleaded.
18. The Plaintiff avers that before the advert in the Guardian Newspaper, it wrote to the Defendants asking them to provide it with Accident Data and Permit to Operate in First Aid and Administration and Assisting Accident Victims to Hospital. The said letter is herby pleaded and

shall be relied upon. The Defendants are hereby put on Notice to produce the said letter.
19. The plaintiff avers that in reply to the letter written to them, the Defendants caused a letter to be written to this plaintiff dated 22nd June, 2005 with reference FRSC/HQ/ABJ/H1210/VOL.VII/245 with the attachments showing the Road Traffic Accident summary from 19602004. The said letter and its attachments are hereby pleaded.”

The same assertions are contained in paragraphs 29-34 of Witness Statement on Oath of the Executive Director, Legal Services of the Respondent.

In his argument under issue 71 the learned Counsel to the Respondent is of the view that the contention of the Appellant is preposterous and incompetent. That the issue runs away from the fact in issue which is whether Appellant’s publication were defamatory.

Respondent relied on Exhibit 12 and the findings of the lower Court on page 416 of the records and Exhibits P7, P 10, P11, P12 and P15 all of which he said made the Appellants aware of Respondents aims and objectives and that even if it were true that Respondents actions infringe on the powers of the Appellants, that they

are estopped by conduct from making assertions they made against Respondents “having previously sought their cooperation in related safety matters all aims at securing the highways in Nigeria” according to learned Counsel to the Respondent relying on Section 169 of the Evidence Act, 2011.

RESOLUTION OF ISSUE 7
The contention of the Respondent to the effect that issue 7 is a deviation cannot be true. This is because the Appellants are also counter-claimant and ground 9 of the grounds contained in Appellants’ Notice of Appeal challenges the finding of the lower Court.

It has long been settled that in the interpretation of a statute or document, the Court must give the words in the statute their natural and ordinary meaning in order to bring out clearly the intention of the lawmakers. The Court will not lend its weight to any interpretation which will defeat the obvious object or intendment of the legislature. See;
1. WIKE EZENKWO NYESOM VS HON. (DR) DAKUKU ADOL PETERSIDE & ORS (2015) 11-12 SCM 139 AT 164 per SANIJSI, JSC who said:
“It is trite law that provisions of statutes should not be construed in a way as would defeat the

intention of the legislature or to defeat the ends it was meant to serve or where it will cause injustice.”
2. ATIKU ABUBAKAR VS INEC & ORS (2019) 12 SCM 1 AT 88 C – D per OKORO; JSC who said:-
“The law is trite, that Courts should not construe statute to deny a party any right he is entitled to. See AGWUNA v AG FEDERATION (1995) SCNJ 66 at 72. It is also a cardinal principle of interpretation that Courts should, while construing a provision of statute should give it broad, ordinary and liberal interpretation to manifest its purpose and also should avoid narrow or conservative construction. See RABIU V THE STATE [1980] 8-11 SC 30; ONYEMA V OPUTA (1987) 6 SC 362 at 371.”
3. PDP VS. HON. (DR) HARRY N. ORANEZI & ORS (2018) 7 NWLR (PART 1618) 245 at 257 H to 258A per M. D. MUHAMMAD, JSC who said.-
“Now, a cardinal principle of interpretation we must not forget, which learned appellant’s counsel however seems to ignore, is that provisions of a statute, an instrument or indeed pleadings should not be read in isolation of the other parts of the statute, instrument or pleadings. In order to determine the intendment of the makers of the

statute, instrument or pleadings, same should be read as a whole. Thus a clause in any of these must be construed together and with reference to the context and other clauses in the statue, instrument or pleadings in ensuring the discovery of a consistent meaning of the whole, here, the pleading being considered. See Oyeyemi v. Commissioner for Local Government (Kwara State) (1992) 2 SCNJ 266 at 280; (1992) 2 NWLR (Pt. 226) 661 and Artra Industry Nigeria Limited v. NBCI (1998) 3 SCNJ 97 at (1998) 4 NWLR (Pt. 546) 357.”

I have calmly read the statute establishing the 1st and 2nd Appellants and the Constitution of 1st Respondent Exhibit P2 and I have no doubt in my mind that the finding of the learned trial Judge holding that the aims and objectives of the Plaintiff do not violate or infringe on any of the statutory responsibilities of the Defendants is patently wrong and erroneous.
The long title to the Federal Road Safety Commission (Establishment) Act, 2007 can be enlisted or utilized to discern the functions and duties of the Appellants. Long title has been held to be useful guide in the

interpretation of a Statute or law. See;
1. SKYE BANK PLC VS VICTOR ANAEMEM IWU (2017) 16 NWLR (PART 1590) 24 AT 95H TO 96A – B per NWEZE, JSC who said:-
“Although, from a historical perspective, Courts excluded titles of statutes when construing them, Salked v. Johnson (1848) 2 Exh. 256; R. v. Wilcock (1945) 7 QB 317; that approach now belongs to the past. The current trend is that the title of a statute is an important part of the enactment and may be referred to for the purpose of ascertaining its general Scope.
The cases on this point are numerous and so, only a handful will be cited here to illustrate this point, Jones v. Sherrington (1908) 2 KB 539, 547; Jeremiah Ambler and Amp; Sons Ltd. v. Bradford Corporation (1902) 2 Ch. 585, 594; Haines v. Herbert (1963) NWLR, 1401, 1404; Osawaru v. Ezeiruka (1978) LPELR 2781 (SC) 17; A-F; Bello and Ors v. AG, Oyo State (1986) LPELR SC. 10411985; (1986) 5 NWLR (Pt. 45) 828; Ogbonna v. A.G, Imo State (1992) LPELR Sc. 22/1990; (1992) 1 NWLR (Pt. 220) 647 (1992) 2 SCNJ 26; (1992) 1 NWLR (Pt. 220) 647; A.G, Abia State v. A.G. Federation (2005) All FWLR (Pt. 275) 414 – 450, (2006) 16 NWLR (Pt. 1005) 265;

Ondo v. A.G, Ekiti State (2001) FWLR (Pt. 79) 1431,1472 -1473; (2001) 17 NWLR (Pt. 743) 706.”
2.COCACOLA NIGERIA LTD & ANOR VS MRS TITILAYO AKINSANYA (2017) 17 NWLR (PART 1593) 74 AT 164 H per NWEZE, JSC who again reiterated the same position.
The said long title of the Federal Road Safety Commission (Establishment) Act 2007 No. 22 provides:-
“AN ACT TO REPEAL THE FEDERAL ROAD SAFETY COMMISSION ACT, CAP, 141 LEN, 1990 (As AMENDED) TO ESTABLISH THE FEDERAL ROAD SAFETY COMMISSION WITH THE RESPONSIBILITY FOR TRAFFC MANAGEMENT, PREVENTTNG AND MINIMIZING ACCIDENTS ON THE HIGHWAYS, THE SUPERVISION OF USERS OF SUCH HIGHWAYS, THE REGULATION OF TRAFFIC THEREON AND CLEARING OF OBSTRUCTIONS ON ANY PART OF THE HIGHWAYS, FOR EDUCATING DRIVERS, MOTORISTS AND OTHER MEMBERS OF THE PUBLIC GENERALLY ON THE PRIOR USE OF HIGHWAYS AND FOR RELATED MATTERS TO SAFETY ON THE HIGHWAYS.”
If the long title reproduced above is read alongside with Section 10(1), (2) and (3) of the said Federal Road Safety Commission (Establishment) Act, 2007, it is very clear as crystal that what the Respondent sought to do, is clearly in violation of the Federal Road Safety

Commission (Establishment) Act, 2007 which has vested all powers and responsibilities for matters contained in the said long title to the Act in the Appellants. Section 10(1)(2) and (3) provide:-
“10(1) There is established for the Commission a body to be known as the Federal Road Safety Corps (in this Act referred to as “the Corps”) which shall consist of such number of Uniformed and non-uniformed member as may be determined from time to time, by the Commission.
(2) The Corps shall discharge functions relating generally to,
(a) making the highway safe for motorists and other road users;
(b) recommending works and devices designed to eliminate or minimize accidents on the highways and advising the Federal and State Governments including the Federal Capital Territory Administration and relevant governmental agencies on the localities where such works and devices are required ; and
(c) educating motorists and members of the public on the importance of discipline on the highway,
(3) In particular, but without prejudice to the generality of the provision of subsection (2) of this section, members of the Corps shall, subject to the

provision of this Act, be charged with responsibilities for-
(a) Preventing or minimizing accidents on the highway;
(b) clearing obstructions on any part of the highways;
(c) educating drivers, motorists and other members of the public generally on the proper use of the highways;
(d) designing and producing the driver’s licence to be used by various categories of vehicle operators,
(e) determining, from time to time, the requirements to be satisfied by an applicant for a driver’s licence:
(f) designing and producing vehicle number plates;
(g) the standardisation of highway traffic codes; preventing or minimising accidents on the highways;
(i) clearing obstructions on any part of the highways;
(j) educating drivers, motorists and other members of the public generally on the proper use of the highways;
(k) giving prompt attention and care to victims of accidents;
(l) conducting researches into causes of motor accidents and methods of preventing them and putting into use the result of such researches
(m) determining and enforcing speed limits for all categories of roads and vehicles and

controlling the use of speed limiting devices;
(n) co-operating with bodies or agencies or groups engaged in road safety activities and the prevention of accidents on the highways;
(o) making regulations in pursuance of any of the functions assigned to the Corps by or under this Act;
(p) regulating the use of sirens flashers and beacon lights on vehicles than Ambulances and Vehicles belonging to the Armed Forces, Nigeria Police, Fire Service and other Para-military Agencies:
(q) providing roadside and mobile clinics for the treatment of accident victims free of charge;
(r) regulating the use of Mobile Phones by motorists;
(s) regulating the use of seat-belts and other safety devices;
(t) regulating the use of motorcycles on the highway;
(u) maintaining the validity period for drivers licences which shall be three years, subject to renewal at the expiration of the validity period; and
(v) performing such other functions as may, from time to time, be assigned to the Corps by the Commission.”
(Underlined mine)
In view of all the aforementioned reasons the Respondent has no power whatsoever to embark

on all matters contained in its advertisement as they contravene the powers vested in the Appellants under the Federal Road Safety Commission (Establishment) Act Sections 1, 2, 3, 4, 5, 6 and 10 thereof.
The Respondent itself acknowledged that it has no power to embark on the proposed National Visual Testing and Safety Certification Scheme and that was the reason the Respondent sought for collaboration of the Appellants and backing from House of Representatives. The issuance of Driver’s Licence and Visual, Testing of Motorists or Applicants for Licence is the prerogative of the Appellants. There is no law cited giving powers to the Respondent or any other Organization apart from Appellants to conduct National Visual Testing and Safety Certification of Applicants for Driving Licence or Motorists.
Issue 7 is resolved in Appellants’ favour.

ISSUE EIGHT
“Was the trial Court right, when it granted the reliefs sought by the Respondent, including the award of damages in an excessive sum of N20,000,000.00 (Twenty Million Naira), when the Respondent did not prove its claim, and when assessment of the quantum of the said sum was based on the

inadmissible hearsay evidence of PW2.”
It is the submission of the Appellants’ Learned Counsel that a trial Judge has a duty to assess damages in line with the legal principles before making an award and that a party claiming damages must prove in libel case that the Appellants publications has defamed it.

That the lower Court relied on exhibit 25, letter written by Fidelity Bank informing Respondent that it was Appellants publication that led to the stoppage of operation on the Respondent’s Account.

That PW2’s evidence paragraphs 7-11 of his Witness Statement on Oath was also relied upon. PW2 told the Court that Fidelity Bank informed him of it. That PW2’s evidence is hearsay because he neither saw nor read the alleged defamatory publication. That PW2 said a staff of Fidelity Bank discouraged him from purchasing application form of Respondent for the proposed project. The said staff was not called. He relied on the case of NSIRIM V. NSIRIM (1990) 2 NWLR (PART 138) 285 at 298 – 299 F – C.

The Learned Counsel to the Respondent adopted the submissions under issue 4 and further submitted that the evidence of PW2 was corroborated by Exhibit P25.

He relied on Section 43 of the Evidence Act and the case of DAGAYYA v. THE STATE (2006) 7 NWLR (PART 980) 637.

That evidence of PW2 in the instant case “was simply to establish that indeed the bank took action because of the appellant’s publication and as such PW2’s evidence is not hearsay.”

RESOLUTION OF ISSUE 8
A plaintiff in libel action must first establish his case against the Defendant to enable the Court assess the damages suffered. The onus to prove the libel lies on the Plaintiff and he must establish at least the following facts:-
(a) That the defendant published a statement in a permanent form.
(b) That the statement referred to him.
(c) That the statement was defamatory of him in the sense that it lowered him in the estimation of right thinking members of the society; or it exposed him to hatred, ridicule or contempt or it injured his reputation in his office, trade or profession or it injured his financial credit. See
1. ALHAJI A. R. SULE & ORS V. MR. J ORISAJIMI (2019) 12 (PART 2) SCM 88 at 102 to 103 A per BAGE JSC.
2. CSS & DF LIMITED VS. SCHLUMBERGER (NIG) LIMITED (2018) 15 NWLR (PART 1642) 238

AT 258 A – F per NWEZE, JSC, who said:
“In all, these authorities are unanimous that such a plaintiff can only be entitled to Judgment if he proves that the defendant:
(i) published a statement in a permanent form;
(ii) that the statement referred to him;
(iii) that the statement was defamatory of his person in the sense that-
(a) it lowered him in the estimation of right-thinking members of the society or
(b) it exposed him to hatred, ridicule or contempt: or
(c) it injured his reputation in his office, trade or profession; or
(d) it injured his financial credit.
The cases are many. We shall only cite one or two of them here, Sketch Publishing Co Ltd v. Ajagbemokeferi (1989) LPELR -3207 (SC) 37, B-G. (2011) 10 NWLR (Pt. 1256) 574; African Newspapers Ltd v. Ciroma (1996) 1 NWLR (Pt. 423) 156; Ugo v. Okafor (1996) 3 NWLR (Pt. 438) 542; Guardian Newspapers Ltd and Anor v. Ajeh (2011) LPELR – 1343 (SC) 15; B-D, (2011) 10 NWLR (Pt. 1256) 574; Iloabachie v. Iloabachie (2005) 13 NWLR (Pt. 943) 695, 736.
Although, the “right-thinking person” standard has become a subject of scathing strictures, Markesinas and

Deakin, Tort Law (1994); Professor Prosser, Prosser and Keaton on Torts (1984, 5th edition), cited in A. Mullis, (supra), Nigerian Courts still espouse that standard, Sketch Publishing Co. Ltd v. Ajagbemokeferi (supra); African Newspapers Ltd v. Ciroma (supra); Ugo v. Okafor (supra); Guardian Newspapers Ltd and Anor v. Ajeh (supra); Iloabachie v. Iloabachie (supra).
Failure to establish anyone of these ingredients is fatal to the plaintiff’s case, Okolo v Midwest Newspapers Corp. (1977) NSCC II; Okafor v Ikeanyi (1979) NSCC 44; Sketch Publishing Co Ltd v Ajagbemokeferi (Supra). African Newspapers Ltd v. Ciroma (1996) 1 NWLR (Pt. 423) 156; Ugo v. Okafor (1996) 3 NWLR (Pt. 438) 542; Din v. African Newspapers of Nig Ltd (1990) 3 NWLR (Pt. 139) 392; Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285.”
3. ONAH V. SCHLUMBERGER (NIG) LIMITED (2018) 17 NWLR (PART 1647) 84 AT 100 E F per RHODES-VIVOUR, JSC.

There is no doubt that Appellate Court can reverse or set aside award of general damages made in favour of a party. The Appellate Court can exercise the discretion in any or more of the ways laid down by the decisions of apex Court. Suffice to refer

to the case of BRITISH AIRWAYS V. MR. P. O. ATOYEBI (2014) 13 NWLR (PART 1424) 253 at 287 G – H to 288 A-C per KEKERE-EKUN JSC who said:
“The Learned Senior counsel (respondent) reiterated the legal position that general damages are by their nature what the law would presume to be the direct, natural and probable consequence of the act complained of and need not be strictly proved. An award of damages is within the discretionary powers of the Court. An appellate Court would not usually interfere with a previous award unless satisfied:
(a) that the trial Court acted under a mistake of law; or
(b) where the trial Court acted in disregard of some principle of law; or
(c) where it acted under a misapprehension of facts; or
(d) where it has taken into account irrelevant matters or failed to take into account relevant matters; or
(e) where injustice would result if the appellate Court does not interfere; or
(f) where the amount awarded is either ridiculously low or ridiculously high that it must have been a wholly erroneous estimate of the damage. See: Shell Petroleum Devt. Co. Nig. v. Tiebo (supra); Shodipo & Co. Ltd. v. Daily Times of Nig. Ltd.

(1972) 1 All NLR (Pt.2) 406; Acme Builders Ltd. v. Kaduna State Water Board (1999) C 2 NWLR (Pt.590) 288; Mutual Aids Society v. Akerele (1965) 4 NSCC 268 @ 272.”

I am of the view that upon close study of the facts pleaded and issues joined by the parties and upon critical reading and examination of words published against the Respondent, I am of the solemn view that the publication is not in any way defamatory of the Respondent.

The award of N20,000,000.00 (N20 Million Naira) is also based on Exhibits P24 and P25 in particular which are inadmissible documents same having been made during the pendency of this action. The said Exhibit P25 has been adjudged inadmissible and of no probative value. It is not enough for a party to place meaning the members of the public may think of the words complained of or the publication in question convey, the Plaintiff must lead cogent and credible evidence against the Defendant(s) in order to actually sustain the libel action. There is no strong evidence against the Appellants to prove the alleged libel. It is glaring that there is no letter or document from the Appellants to show remotely

or directly that it encouraged the Respondent to embark on the venture leading to the alleged publication. There is nothing libelous in the publications. The public were justifiably warned of the fact that Appellants were not part of the proposed National Visual Testing and Safety Certification Scheme for Motorists being touted by Respondent.

The lower Court erred in awarding the sum of against the Appellants for libel. The Respondent is not entitled to the said sum of or any sum at all.

In case there is a further appeal from this Court and it is found that the Respondent made out a case for award damages for libel, then my decision would be that the amount of N20,000,000.00 is excessive. I will award the sum of N5,000,000,000 in favour of the Respondent. I agree with Appellants submissions that the Respondent failed to make out any case against the Appellants for an award of damages. Issue 8 is resolved in favour of the Appellants.

Issue Nine (Ground 12)
Whether the trial Court was right when it dismissed the Appellants Counter-claim, without evaluating the evidence led in proof of same.
There is no doubt that a counter-claim is an

independent action and distinct from the action wherein the Counter Claim is set up. The Counter – Claim must however have affinity with the subject matter of the main claim or upon facts that are relevant to the facts in the main claim or action. The onus of proof is on the same pedestal as in the main action. The Counter-Claimant must also lead credible evidence to establish his or her case.

The Counter Claim of the Appellant consists of claim for six (6) reliefs which are as follows:
1. And by way of Counter-claim the 1st Defendant herein, restates all the allegations contained in all the paragraphs of its Statement of Defence.
2. A Declaration that it amounts to a usurpation of the statutory functions of the 1st Defendant, for the Plaintiff to purport to have power to organize and or carry out any National Visual Testing and Safety Certification Scheme.
3. A Declaration that it is ultra vires the powers of the Plaintiff to carry out any National Visual testing and Safety Certification Scheme.
4. An order of perpetual injunction restraining the Plaintiff from carrying out, organizing and or advertising any National Visual

Testing and Safety Certification Scheme by whatever name called.
5. N100 million naira general damages.
6. Interest on the above sum calculated at the rate of 10% from the date of Judgment until final liquidation
7. The cost of this suit.

The Counter Claimant must rely on the strength of its own case and not on the weakness of the Respondent/ Defendant to the Counter-Claim.
It is the submission of the Appellants that they led credible evidence which the lower Court did not evaluate before dismissing it.

In his own argument, the Learned Counsel to the Respondent stated that the learned trial Judge painstakingly addressed the scope of the Appellant’s statutory powers upon which the Counter Claim was premised. That the lower Court rightly found that road traffic safety was not the exclusive duty of the Appellant but collective duty of the entire citizenry.

RESOLUTION OF ISSUE 9
Yes it is true that the maintenance of road traffic safety is not exclusive to the Appellants but where as in this case the statute establishing the Appellants specifically confers duties or functions on Appellants to be solely responsible for

issuance of licence to motorists and matters pertaining to it no other body or authority can share or exercise the powers or functions with the Appellants all and singular.
There must be a law expressly permitting the Respondent to perform duties already assigned to the Appellants. Section 10 of the Federal Road Safety (Establishment) Act 2007 cannot be interpreted as accommodating the National Visual Testing and Safety Certification Scheme in favour. It is only the Appellants that can delegate such duty or function on the Respondent to be performed on behalf of Appellants if Appellant so wish.
The Respondent cannot be permitted to take over the function of the Appellants and cannot be allowed to erode the functions or powers of Appellants as it has tried to do by calling on Motorists to apply for training or participate in National Visual Testing and Safety Certification.

The lower Court ought to have found for the Appellants on their Counter Claim in terms of reliefs 2, 3 and 4 contained on the Counter Claim and an award of commensurate damages ought to have been granted in favour of the Appellants.

In the result I found that the

Respondent failed to prove any of the reliefs sought against Appellants on its Writ of Summons and the Statement of Claim.

Consequently, the judgment of the FCT High Court of Justice delivered on 17/11/2011 in favour of the Respondent is HEREBY SET ASIDE. The judgment of the said Court dismissing the Appellants/Counter Claim is hereby set aside.

Judgment is hereby entered in favour of the Appellants on their Counter Claim in terms of reliefs 2, 3 and 4, as follows:
2. A Declaration that it amounts to a usurpation of the statutory functions of the 1st Defendant, for the Plaintiff to purport to have power to organize and or carry out any National Visual Testing and Safety Certification Scheme.
3. A Declaration that it is ultra vires the powers of the Plaintiff to carry out any National Visual Testing and Safety Certification Scheme.
4. An order of perpetual injunction restraining the Plaintiff from carrying out, organizing and or advertising any National Visual Testing and Safety Certification Scheme by whatever name called.

The sum of N5,000,000,000 is also hereby awarded as general damages in the favour of the Appellants against

the Respondent. The Plaintiff/Respondent’s action is hereby dismissed in its entirety.

However since I have found that the writ of summons was not signed by a Legal Practitioner called to the Nigerian Bar, the entire suit of the Respondent as Plaintiff in the main action is hereby struck out for want or lack of jurisdiction on the part of the lower Court.
There will be no order as to cost.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother LORD JUSTICE PETER OLABISI IGE, J.C.A.

I agree with the decisions therein except the decision that the writ of summons is incompetent. With due respects to my Learned brother, I do not agree with the decision that the Writ of Summons that commenced suit No: FCT/HC/CV/54/09 at the trial Court was incompetent because it was not personally signed by the Plaintiff’s legal Practitioner, Chief Karina Tunyan SAN who is stated on the Writ of Summons to have filed and issued same and that therefore the trial Court lacked the jurisdiction to entertain, try and determine the suit.
The Writ of Summons having been issued by the Registrar of the

trial Court in accordance with Order 4 Rules 1(1) and 15 of the High Court of the Federal Capital Territory (Civil Procedure) Rules 2004 (the then applicable Rules), it became competent and the trial Court validly exercised jurisdiction to try the suit commenced by it, The absence of the signature of the plaintiff or his legal practitioner on the Writ of Summons cannot be of any moment and had no legal effect on the validity and competence of the Writ of Summons.
There is nothing in the said 2004 Rules requiring that the Writ of Summons be signed by the Plaintiff or his legal Practitioner. What the Rules require of a Plaintiff who sues by a legal Practitioner to commence civil proceedings by a Writ of Summons are clearly stated therein. Order 4 Rule 2 requires that the Plaintiff’s Counsel apply in writing for the issuance of the Writ of Summons by completing Form I as in the Appendix to the Rules. Rule 12 (1) states that the Writ shall be endorsed with the Plaintiff’s name and business address of his within the jurisdiction of the Court.
The Form I presented by the Learned SAN for the Plaintiff for filing contains what Form I in the appendix of the

Rules prescribe in accordance with Rules 2 and 12 (1) of Order 4 of the 2004 Rules. The Rules did not provide that the Plaintiff’s legal practitioner sign the Form I presented for filing. The Form I in the appendix to the Rules did not provide for the plaintiff’s legal practitioner’s signature.
Since the Rules that regulate the issuance, form and content of a Writ of Summons do not require the Plaintiff’s legal Practitioner to sign the Writ of Summons, he has no obligation to do so and the absence of such signature on the Writ is of no legal effect. There is no part of the Legal Practitioners Act that imposes such an obligation on a plaintiff’s legal Practitioner where there is no legislative prescription that a Court process issued by the Court officer empowered to do so be signed by a legal Practitioner.
These points are settled by the decisions of this Court in Leadership Newspaper Group Ltd v. Ogbe (CA/A/689/2013 of 29-3-2017), Mobil Oil Producing Nig. Limited v Kudehinbu & Ors (CA/A/43/2012) of 17-11-2017, Abdu v. Pali & Ors (CA/A/242A/2016 of 30-62017).
As this Court held inAbdu v. Pali & Ors (supra), judicial authorities that

apply S.2 of the Legal Practitioners Act in cases of absence of the signature of a legal Practitioner on processes that a law requires a legal Practitioner to sign, such as notice of appeal, motion, pleading, brief of argument, e.t.c are not applicable to where as in this case, there is no law requiring a legal Practitioner to sign the process in issue. The obvious reason is that where a law requires that a legal Practitioner sign a process, such as a pleading, a motion, notice of appeal and brief of argument, the process would be considered issued and valid only if it is signed by a legal Practitioner. In the case of Writ of Summons to commence a suit in the FCT High Court, Order 4 Rule 1(1) of the 2004 Rules clearly vest the power to issue the Writ on the Registrar or other officer of the Court and Rule 15 of the same Order 4 states that the Writ is issued when it is signed by the Registrar. The Writ of Summons is issued by the Registrar or other officer of the Court and not the Plaintiff’s legal Practitioner.
The Plaintiff’s legal Practitioner has no role to play concerning the issuance of the Writ of Summons. Upon being issued by the Registrar, the

Writ of Summons becomes valid and competent. As held by the Supreme Court in Famfa Oil Ltd v. AG. Federation & Anor (2003) LPELR – 1239 (SC), once the Plaintiff or his legal Practitioner has presented his claim in Form I to the Registrar for the assessment of the necessary fees payable and fully paid such fees, his responsibility ceases. The issuance of the Writ of Summons is done by the Court Officer empowered by the Rules to do so.
In the light of the foregoing I hold that the Writ of Summons that commenced the suit at the trial Court is valid and competent and that the trial Court had properly exercised its jurisdiction to try the suit commenced by the Writ of Summons.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the privilege of reading in advance the Judgment just delivered by my learned brother, PETER OLABISI IGE, JCA and I agree with the reasoning and conclusions arrived at.

My lord in a concise and succinct manner dissected the issues donated for resolution in such a way that the conclusion is well grounded and uncontestable. I agree that the publication made by the Appellant is in conformity with its duty to the

general public and therefore, it cannot be injurious or defamatory. More so, because the Respondent by its showing admitted that it did not have the statutory power to carry out the exercise.

I too allow the appeal and enter Judgment in favour of the Appellant in terms reliefs 2, 3, and 4 of the counterclaim. I also abide by the other orders made in the lead Judgment.

Appearances:

KAUNA PENZIN, ESQ., with him, BENNY KANYIP, ESQ. For Appellant(s)

J. NUMA, ESQ., with him, T. M. EKE, ESQ. and L. A. EDE, ESQ. For Respondent(s)