FERDINAND EKPO MBANG V. GUARDIAN NEWSPAPERS LTD & ANOR
(2010)LCN/4073(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 30th day of November, 2010
CA/C/100/2008 & CA/C/98/2008
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
MASSOUD ABUDULRAJMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
FERDINAND EKPO MBANG Appellant(s)
AND
1. GUARDIAN NEWSPAPERS LTD
2. ANIETIE BEN AKPAN Respondent(s)
MASSOUD ABUDULRAJMAN OREDOLA, J.C.A.(Delivering the Leading Judgment): The appellant in this appeal was the plaintiff in Suit No. C/91/92 at the Calabar Division of the High Court of Cross River state. His claim which he commenced by a writ of summons and statement of claim filed on 6th October, 1992 was for N5, 000,000.00 damages against the respondents for libel, allegedly contained in the 8th May, 1992 edition of the Guardian Newspaper, published by the respondents. He also sought an order of injunction restraining further publication of the material.
The respondents denied the allegation through their statement of defence and further set up the defence that the words complained of were fair comments made in good faith and without malice and upon a matter of public interest in the investigation by the Cross River State House of Assembly. At the hearing, witnesses were called by the parties and in the lower courts judgment the sum of N750,000.00 was awarded to the appellant as damages as a result of the said publication. The appellant was dissatisfied with the assessment and award by the lower court and appealed to this court on three grounds. The respondents too felt aggrieved with the entire findings of the learned trial judge and filed their appeal originally numbered as CA/C/100/2008 but later by order of this court consolidated with the appellant’s appeal as CA/C/98/2008. The Appellants in CA/C/100/2008 will still be called the respondents/cross appellants while the appellants in CA/C/98/2008 will be referred to as appellant/cross respondent.
In his brief of argument, the appellant/cross respondent formulated one issue for determination. It goes thus:
“Whether the trial judge was right in the assessment of the quantum of damages to which the plaintiff was entitled.”
Learned appellant/cross respondents counsel contended that the assessment by the lower court was based on factors outside the legally established principles while the award of N750,000.00 was too negligible in the circumstances of the case. In their response to that contention, the respondent/cross appellant argued that the appellant/cross respondent did not fault the summary of the evidence upon which the court based its assessment and award and urged this court to dismiss the appeal.
Regarding the cross appeal, the respondents/cross appellants raised two issues in their brief of argument as follows:
1. Whether the publication was defamatory and if so whether the unrebutted defence of fair comment did not avail the appellant.
2. Whether the judgment of the learned trial judge ordering the appellants to pay N750,000.00 in damages based on an unsigned amended statement of claim was valid.
The learned counsel for the respondents/cross appellants contended on the first issue that the appellant/cross respondent who was an employee of Cross Lines as the serving manager did not prove that the words referred to him and so did not establish a vital ingredient of defamation, there being no allegation of comment against his person and that he had merely gone out of his way to overdramatise, sensationalize the issue and ascribed a meaning that is a far cry from the publication itself. He argued also that in the entire circumstances of this case the defence of fair comment was well made out and avail the respondents/cross appellants since the appellant/cross respondent failed to rebut that defence by failing to deliver a reply giving particulars of express malice as required under Order 25 Rule 23 (2) of Cross River State High Court (Civil procedure) Rules and the case of Bakare V. Ibrahim (1973) 8 NSCC 458 at 462.
On Issue 2, the respondents/cross appellants, counsel submitted that the judgment of the rower court was based on a defective amended statement of claim and hence that judgment was legally invalid. He cited Aunam (Nig) Ltd. V. Leventis Motors Ltd. (1990) 5 NWLR (Pt. 151) 458 and urged this court to set aside the judgment of the lower court in its entirety. Responding to this, the appellant/cross respondent formulated three issues for determination:
1. Whether the learned trial judge was right in holding that the publication was defamatory of the plaintiff.
2. Whether the learned trial judge was right in holding that the defence of fair comment did not avail the defendants.
3. Whether the learned trial judge was right to rely on and use the plaintiff’s amended statement of claim deemed properly filed and served by order of court.
Arguing Issue 1, the learned counsel submitted that in order to establish defamation, the words complained of need not necessarily refer to the plaintiff by name, so long as the words could be understood by reasonable persons to refer to the plaintiff. He cited Dalumo V. The Sketch publishing Co. Ltd. (1972) 5 SC 308; F.B.N. Plc V. Aboko (2007) 1 NWLR (Pt. 1014) 129, and stated that the publication in this case referred to the appellant/cross respondent in his full name and status.
On Issue 2, the learned counsel submitted on the authority of The Sketch Publishing Co. Ltd. Vs Ajagbemokeferi (1989) 1 NWLR (Pt. 100) 678 that for a comment to be regarded as fair with regards to a defamatory publication, it must be based on facts truly stated. He said that the respondents/cross appellants merely raised fair comment but failed to discharge the burden of proof on them in that regard.
On Issue 3, the learned counsel contended that since the respondents/cross appellants had failed to appeal against the ruling of the lower court that granted leave to amend the appellant/cross respondent’s statement of claim on 18th May, 2005, that they are now estopped from raising that issue in this appeal since equity does not aid the indolent. Again the appellant/cross respondent had canvassed as a preliminary point that the first ground of appeal of the respondent/cross appellants appeal had been abandoned as no issue was formulated therefrom. Hence, it should be struck out as an incompetent ground. In the respondents/cross appellants reply brief, it was their response that ground one of their cross appeal had been well covered by Issue 1 in their brief of argument, and even if the said ground is struck out this would not affect the case of the respondents/cross appellants which can be decided on the remaining grounds.
On this preliminary objection, what the appellant/cross respondent is objecting is the incompetence of ground one of the respondents/cross appellants’ appeal and not the competence of any of the issues formulated by them and the reason for the supposed incompetence of that ground of appeal is that no issue was formulated directly therefrom.
It is the established practice that more than one issue for determination should not be framed from one ground of appeal. Howbeit, an issue may encompass one or more grounds. See Agbetola V. Lagos State Executive Council (1991) 4 NWLR (pt. 188) 664; Osazuwa V. Edo State Civil Service Commission (1999) 4 NWLR (Pt. 597) 155/161.
The general law is that in a civil appeal the omnibus ground is that the judgment is against the weight of evidence. On the other hand, in a criminal appeal, the general ground is that the verdict is unreasonable or cannot be supported having regard to the evidence. See Adeyeri V. Okobi (1997) 6 NWLR (Pt. 510) 534; Gidado V. Lowgan (2004) 10 NWLR (Pt. 881) 374/386.
Ground 1 of the cross appeal is the omnibus ground that the judgment was not a product of the actual weight of the evidence. It is always a competent and valid ground, but I agree that no issue was directly distilled from that omnibus ground in this appeal, and where a ground of appeal does not constitute the basis of any issue for determination, such a ground is deemed abandoned. Thus, ground one of the cross appeal is so treated in this regard. The two issues raised for determination are however well distilled from the remaining grounds of appeal and constitute valid issues in this appeal.
The issue concerning the reliance placed by the learned trial judge on the unsigned amended statement of claim of the appellant is commonly canvassed by both parties in this appeal and I think it should be considered before other issues. Page 102 of the record of appeal shows that after the conclusion of evidence by the parties and the address of the learned defence counsel, the appellant/cross respondent (as plaintiff) applied by way of a motion on notice for amendment of the statement of claim and to deem the amended statement of claim annexed to the motion as properly filed. The appellant/cross respondent sought and wanted to add the word “general” to the damages he sought in the case so as to claim general damages. The defence counsel that is, learned counsel for the respondents/cross appellants herein, opposed the motion in general terms and with particular emphasis or reference to the annexed statement of claim. The learned counsel observed:
“…The name of Akumaye E. is on the document. He is not a legal practitioner, nor in practice, has Document not been endorsed by the author. Then it is of no issue. There is therefore no amended statement of claim before you. See Isalibawa V. Itabiba (1991) 2 NWLR (pt. 174) 461 at 465 held 6.”
See page 103 of the record of appeal. To this objection, the appellant/cross respondent’s counsel said on page 104 thus: “Original process was signed. Signature has not been changed.”
In the ruling delivered on that application on 18th May, 2005 the learned trial judge granted the prayers of the appellant including the one deeming the unsigned statement of claim as properly filed. In this vein, that amended statement of claim remained unsigned by anybody up to the time of the courts judgment. Astonishingly enough the learned trial judge did not make any remark or even comment on that point of objection. To my understanding, I do not think the approach of the learned trial judge in ignoring, discarding or glossing over the issue of an unsigned initiating or originating process before the court is correct. My reason simply, is that it is the statement of claims that constitutes the pleading on which the claim rests sinks or swims. According to Order 25 Rule 4 (1) of the relevant rules of court, it must be signed. That rule provides inter alia that “…pleadings shall be signed by a legal practitioner or by the party if he sues or defends in person.”
Invariably, the word “shall” in its ordinary meaning is a word of command and one which has always or which must be given a compulsory meaning as denoting obligation. It has a peremptory meaning and it is generally imperative and mandatory. It has the invaluable significance of excluding the idea of non – challenge or discretion to impose a duty which may be enforced.
Thus, if a statute, rules or regulation provides or requires that a thing “shall” be done, the natural and proper expectation is that a peremptory, compulsory mandate has been enjoined. See Achineku V. Ishagba (1988) 4 NWLR (Pt. 89) 411/414. Hence, in most cases, there is the need for compliance with such rules of court. It is elementary that rules of court must be obeyed or complied with, as they are not made either to be toyed with or for the fun of it. In Solanke V. Somefun (1974) 1 SC 141, Sowemimo JSC (as he then was) opined:
“Rules of court are meant to be complied with … Rules of court are made to be followed. They regulate matters in court and help parties to present their case for purpose of a fair and quick trial. It is the strict compliance with these rules of court that made for quicker administration of justice.”
See also, Ibodo V. Enarofia (1980) 5-7 SC 42;-John V. Black (1988) 1 NWLR (Pt. 72) 645; Dambam V. Lele (2000) 11 NWLR (Pt. 678) 413.
It has been said and well stated, that if the law provides the mode for doing an act, it stands to reason to expect that the act can only be considered properly done, if it is performed in the way and manner prescribed by the said law. That to my mind won’t amount to lowering of standards and an otherwise breach of statutory provisions, substantive or procedural. I do not see anything technical rather than substantial in the justice of complying with requirements of the law. This is moreso, because there should be no arbitrary shifting of the goal posts after commencement of the game. Indeed, certainty and predictability are essential elements of the law.
Consequently, non -compliance with the rules of court can either be curable or incurable. A non compliance will be curable if it is intangible, peripheral tangential and not affecting the merits of the matter. It is however, incurable if it is tangible and affects either the jurisdiction and or competence of the court to adjudicate on the matter. See Carribean Trading & Fidelity Corporation v. N.N.P.C. (1992) 7 NWLR (Pt. 252) 161/183. Indeed, non compliance with rules of court which affects the very foundation, or props of a case, cannot be treated by the courts as an irregularity but as a virus nullifying the entire proceedings. Once the non – compliance affects the substance of the matter to the extent that the merits of the case are ruined, then it is impossible to salvage the proceedings in favour of the party in blunder. Indeed, there is no amount of waiver by the other party that can be of any assistance to the adverse party. See Mobil Producing (Nig) Unlimited v. Monokpo (2003) 18 NWLR (Pt. 852) 346/435.
Consequently, issue of express malice can only be raised in a reply as provided for by the rules of court. Hence, where none has been filed, no such favourable finding can be found by the trial court for a plaintiff. “Express malice” otherwise known as malice in fact unlike “technical malice” otherwise referred to as malice in law is never presumed but must be pleaded vide the delivery of reply to a defence of qualified privilege or fair comment and must be proved by evidence. See N.T.A. V. Babatope (1996) 4 NWLR (Pt. 440) 75; Ciroma V. Ali (1999) 2 NWLR (Pt. 590) 317. It is clear in law that the word shall is not permissive but connotes mandatoriness or compulsion and by this token the failure to comply therewith cannot be a mere irregularity. It must be viewed as a vice on that process itself. By the order of the court this vicious process had taken over the original statement of claim alleged to be signed since it was expected to date back to the date of commencement of the action.
An unsigned document cannot generate or initiate an action. In law, an unsigned document is entitled, to no weight. It is incapable of being used by a court to resolve facts that are disputed in an action between the parties. See Garuba v. Kwara Investment Company (2005) 5 NWLR (Pt. 917) 160; Tsalisawa v. Habiba (1991) 2 NWLR (Pt. 174) 463. In my view therefore the judgment of the lower court was rendered invalid having been based on a statement of claim that was itself invalid in law. I agree with the learned counsel for the respondent/cross appellant on this issue.
Another common issue which is worth considering is whether the learned trial judge was right in holding that the publication was defamatory of the appellant/cross respondent. I will add this to the lone issue in his brief as to whether the award of N750,000.00 damages to him was proper in the given circumstances of this case. Let me briefly reiterate from the record that the appellant/cross respondent was at the time material to this case a public officer being the General Manager of Cross Lines Limited, a company substantially owned by Cross River State Government and which carried on business of transportation. The publication alleged to be libelous was published in the 18h May, 1992 edition of the Guardian Newspaper with the heading “CROSS LINES IN N9 MILLION RIDDLE.” It was stated therein that Mr. Ferdinand Ekpo – Mbang (appellant/cross respondent) was summoned before the Cross River State House of Assembly Committee investigating the activities of Cross Lines Ltd. and which had discovered an amount of $500,000.00 dollars of the company’s money in a Spanish account, the ownership of which account was not mentioned. It was further stated that the appellant/cross respondent who appealed before the House offered explanation on the discovery but declined comments on the issue when he was visited by the respondents/cross appellants.
It is a fundamental requirement for success in an action for libel that the plaintiff must establish the following:
(1) That there was publication in a permanent form by the defendant.
(2) That the statement published concerned the plaintiff.
(3) That the publication was defamatory of the plaintiff.
See Nsirim v. Nsirim (1990) 3 NWLR (pt. 138) 285; Onu V. Agbese (1985) 1 NWLR (Pt. 4) 704; Onyejike v. Anyasor (1992) 1 NWLR (Pt. 218) 437; Din v. African Newspapers Ltd. (1990) 3 NWLR (Pt. 139) 392.
The tort of libel is committed when a person writes or prints a statement to some person other than the plaintiff and therein attacks the reputation, integrity, standing and/or fidelity of the person concerned. See Iloabachie v. Iloabachie (2005) ALL FWLR (Pt. 272) 223.
The test for determining whether the publication complained of constitutes libel is not the subjective test of the plaintiff himself or even that of his witness. It does not rest on their personal imagination, figuration or belief; it is rather the meaning a reasonable man will attach to the publication. It will therefore not be of any moment that the plaintiff has stretched the publication beyond its ordinary or reasonable meaning so as to ascribe a defamatory meaning to it. The publication complained of in the instant case amounted to a report of proceedings before the parliament in Cross River State House of Assembly that summoned the appellant/cross respondent not on any indictment of him, but to explain issues concerning Cross Lines Ltd., a government establishment. It was made clear that the appellant/cross respondent was summoned in his capacity as the General Manager. Appellant/cross respondent and all the witnesses he called at the trial were ad idem that he appealed before the House of Assembly on the precise date stated in the publication, whether at plenary or committee level. All these facts have rendered the publication to be substantially or somewhat true and I will not follow the appellant or his learned counsel on the imputations of his being a corrupt or dishonest or incompetent officer that they want the court to read into the publication. They are far away from it. The assessment and award of N750,000.00 to the appellant/cross respondent is not derivable from the evidence in the case.
Like all civil claims, the plaintiff in a claim for defamation bears the burden of proving his assertion on a balance of probability. The burden can only shift after the plaintiff has satisfactorily established his claim. See Iloabachie v. Iloabachie (supra). I have found that the appellant/cross respondent as plaintiff failed to establish the claim before the lower court, the defence of fair comment is recognized as a defence to libel especially as in this case where the facts published are substantially true. The defendant is required by Order 25 Rule 23 of High Court (Civil Procedure) Rules to plead that defence and a plaintiff who intends to join issues thereon will file a reply otherwise the plea is deemed to have been admitted. It will therefore be wrong for the trial court to ignore this defence, which ought to avail the respondents/cross appellants.
For the foregoing reasons I find against the appellant/cross respondent on the lone issue in the appeal while I resolve the two issues in the cross appeal in favour of the respondents/cross appellants.
I conclude and state that the complaints and challenges mounted by the respondents/cross appellants herein are duly borne out and their cross appeal must and does succeed. It is accordingly allowed by me. The award of N750,000.00 damages made by the learned trial judge in favour of the appellant/cross respondent herein as the plaintiff in the High Court, Calabar, Cross River State in Suit No. C/91/92 of 10th March, 2006 is hereby set aside. Consequently, the appellant/cross respondent’s claim before the said lower court is accordingly dismissed. The appeal lodged by the appellant/cross respondent is also dismissed by me. Parties shall bear their respective costs in this matter. Ordered accordingly.
KUMAI BAYANG AKAAHS, J.C.A: The Plaintiff now Appellant sued the Defendants/Respondents in the Cross River State High Court, Calabar, claiming N5 Million as damages for liabel and obtained judgment for N750,000.00. He was dissatisfied with the assessment and award and appealed against the said award. The Notice in the main appeal No. CA/C/98/2008 contained three grounds of appeal from which the appellant formulated a lone issue as follows:
“Whether the trial Judge was right in the assessment of the quantum of damages to which the Plaintiff was entitled.
The Respondents agreed with the lone issue as formulated in the Appellant’s brief.
The Defendants also filed a separate appeal in their Notice dated 15th March, 2006. An application to amend this Notice was filed on 8/12/2009 and one of the prayers was to consolidate the two appeals. The said prayer was granted on 14/1/2010 and appeal No. CA/C/98/2008 was consolidated with Appeal No. CA/C/100/2008 and the records in appeal No. CA/C/100/2008 became the records for the consolidated appeals.
The plaintiff in the High Court shall be referred to as Appellant/Cross Respondent while the Defendants will be the Respondents/Cross-Appellants as the case may be.
In the cross-appeal, the following two issues have been raised namely:
1. Whether the publication was defamatory of the Respondent and if so whether the unrebutted defence of fair comment did not avail the appellants.
2. Whether the judgment of the learned trial Judge ordering the Appellants to pay N750,000.00 in damages based on an unsigned amended statement of claim was valid.
The Respondent to the Cross-Appeal filed a preliminary Objection to Ground 1 contained in the Notice of Cross – Appeal arguing that the said ground has been abandoned since no issue was formulated from it and urged this court to strike it out as incompetent. The said Preliminary Objection was argued in the brief. Learned counsel for the cross-Respondent proceeded to formulate the following three issues in his brief of argument:
1. Whether the learned trial Judge was right in hording that the publication was defamatory of the plaintiff.
2. Whether the learned trial Judge was right in holding that the defence of fair comment did not avail the defendants.
3. Whether the learned trial Judge was right to rely on and use the Plaintiff’s Amended Statement of Claim deemed properly filed and served by the order of court.
The Cross-Appellant filed a Reply in response to the Preliminary objection raised and submitted that issue 1 in the cross-appeal was distilled from grounds 1, 2 and 3 of the amended Notice as the complaints therein dealt with sufficiency and evaluation of evidence. He submitted in the alternative that even it ground 1 is struck out; it will have no effect on the cross-appeal.
I agree that the Preliminary objection raised is of no moment since the issue formulated in the cross-appeal will stand with or without the said ground 1. A ground does not become incompetent because no issue has been distilled from it. It becomes incompetent if it does not relate to the judgment being appealed against. A valid ground of appeal is liable to be struck out only when no issue is formulated from it either alone or from related grounds of appeal. It is not a mark of good advocacy for counsel to formulate an issue from every ground of appeal; moreso if the complaints from several grounds are similar and there is one issue which is central to those several grounds. I have perused grounds 1, 2 and 3 in the Amended Notice of Appeal. Ground 1 is the omnibus ground of appeal and it states:-
“That the judgment of the learned trial Judge is altogether unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.”
I consider the ground a valid ground of appeal but since no issue was distilled from it as to the weight of evidence relied on by the trial Judge in entering judgment for the plaintiff, it is deemed abandoned and liable to be struck out for that reason and not for incompetence.
The first issue in the Cross-Appeal is germane in the consideration of the appeal. The question to be answered is whether the publication was defamatory in view of the defence of fair comment raised by the Defence. In paragraph 5 of the statement of Defence it was averred as follows:
“In further answer to paragraphs 7 and 8 of the Statement of Claim, the defendants aver that the news item was published because the words complained of were fair comments made in good faith and without malice upon a matter of Public interest, namely, investigation by the then Cross River State House of Assembly on the lodgment of the sum of $500,00.00 by Cross Lines Limited in foreign account in Spain. (Copies of excerpts from the official report of proceedings of the Cross River State House of Assembly on Wednesday the 8th of April, 1992 on the Evaluation of the Operations of the Cross Lines Company Limited are hereby pleaded and may be relied upon at the trial of this suit.)”
Where the defence of fair comment is raised, it is incumbent on a Plaintiff to file a reply showing that the publication is actuated by express malice as Order 25 Rule 23(2) of the Cross River High Court (Civil Procedure) Rules 1987 provides:
“Where in an action for libel or slander the defendants plead that any of the words or matters complained of are fair comment or a matter of public interest or were published upon a privileged occasion, the plaintiff shall, if he intends to allege that the defendant was actuated by express malice, deliver a reply giving particulars of the facts and matters from which such malice is to be inferred.”
The Supreme Court has settled the issue of delivering a reply by a plaintiff when the defence in an action for libel pleads fair comment. This was done in BAKARE v IBRAHIM (1973) A.N.L.R. 653 at 660 where Ibekwe Ag. J.S.C. stated as follows:
“We are decidedly in support of the well-known rule of pleading 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 principle of justice, that the defendant, whose defence is fair comment or qualified privilege, ought not to be exposed to any kind of surprise…”
The learned trial Judge was wrong in holding that “the defendant cannot hang unto the defence of fair comment if the comments themselves have been proved to be inaccurate” when the plaintiff did not deliver a reply alleging express malice in the alleged defamatory publication. I am therefore of the considered view that the plaintiff failed to establish that the publication was libelous for which he was entitled to any damages. Since the defendants objected to filing of the amended statement of claim because it was not signed, the learned trial Judge should not have grossed over this fact since the authenticity of the document could not be guaranteed an order dismissing the Plaintiff’s claim. I endorse the more detailed reasoning contained in the leading judgment of my learned brother Oredola, J.C.A.
ISAIAH OLUFEMI AKEJU, (J.C.A): I have been privileged to read the draft of the judgment in this appeal just delivered by my learned brother, M. A. Oredola (J.C.A). I agree with the judgment as well as the consequential orders.
Appearances
Ayo Akam Esq.For Appellant
AND
Ekpedeme Nelson Iyoho Esq.For Respondent
