HON. JUSTICE JAMES OMO-AGEGE (RTD) v. JOHN OGHOJAFOR & ORS.
(2010)LCN/3633(CA)
In The Court of Appeal of Nigeria
On Thursday, the 18th day of March, 2010
CA/B/220/2005
RATIO
JUSTICE: WHAT IS THE CARDINAL PRINCIPLE IN THE ADMINISTRATION OF JUSTICE AND ADJUDICATION
It is a cardinal principle in the administration of justice and adjudication in this Country that cases must be decided based only on the evidence before the Court and the peculiar facts and circumstances of each. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
TORT: LIBEL; NATURE OF PUBLICATION IN LIBEL CASES
There is no doubt that publication of an alleged defamatory or libelous material is at the heart of an action of this nature. All the decided cases that I have come across are unanimous that “publication” in libel cases bears a special technical meaning and is meant the making known of the defamatory matter to some persons other than the person of whom it is written. For example in NSIRIM v. NSIRIM (supra) the Supreme Court held that in order to succeed in an action for libel, a plaintiff must prove that the libelous material has been published by same having been communicated to some persons other than the Plaintiff himself. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
TORT: WHAT CONSTITUTES DEFAMATION
It is also part and parcel of the law of defamation that a person’s reputation is not in the good opinion he has of himself but in the estimation of other people, or a class of people. It is the protection of that estimation that is the real subject and aim of the law. ‘It is also not any estimation, be it emotional, biased or sectional etc that is protected, but that estimation which has passed the test of reasonableness both in its content and the person holding the estimation. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
JUSTICES
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
HON. JUSTICE JAMES OMO-AGEGE (RTD) Appellant(s)
AND
1. JOHN OGHOJAFOR
2. OSA DIRECTOR
3. INSIDER COMMUNICATION LTD Respondent(s)
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the decision of the Delta State High Court, Asaba Division, delivered on 20/10/2004 in Suit No.A/235/2002.
In an amended statement of claim deemed properly filed and served on 30th July, 2003, the Appellant, as the Plaintiff claimed for the following reliefs: –
1a) The sum of N100,000,000.00 (one Hundred Million Naira) on the footing of aggravated and exemplary damages for libel contained in pages 32 and 33 of the Insider Weekly No. 39 dated 30th September, 2002;
b) A retraction of the said publication accompanied with an unconditional apology in 3 subsequent publications of the 3rd Defendant’s Weekly Magazine; and
c) An injunction to restrain the defendant and each of them by themselves or by their servants, agents or otherwise howsoever, from the publication of the said words or any of them or similar words.
In a statement of defence dated 14th February, 2003, earlier on filed in response to the main statement of claim, the Respondents, as the defendants, denied the claims of the Appellant and called on the lower Court to dismiss same in their entirety.
Upon this background the case went to trial. At the trial the Appellant testified as PWI and was duly cross-examined by learned Counsel to the respondent. In the course of his testimony a number of documents were tendered and admitted in evidence. Out of these documents, Exhibit E was admitted as the alleged libelous publication.
It was at this stage that learned Counsel closed the case for the Appellant. Also at that stage, learned Counsel to the Respondents contemplated calling witnesses in defence of the action. On a further thought learned Counsel abandoned the idea of calling witnesses. Thereafter respective learned Counsel took turns to address the Court. After these addresses, the matter was adjourned for judgment.
In its judgment, the lower Court along the line dismissed the claim of the Appellant when it held thus: –
“…the plaintiff has not established publication. In the result the suit ought to be and is hereby dismissed at this stage.” (See page 98 lines 25 – 28 of record of appeal).
In what appears to be an ex abundante cautela approach, and appropriately so, the learned trial Judge went further to say: –
“In the event that the Court is wrong in dismissing this suit on the ground of publication was not proved, I shall proceed to deal with other aspects of the case.” (See page 98 lines 29 – 32 of the record of appeal).
At the end of this whole exercise, during which the learned trial Judge did an impressive and elaborate review of the facts and circumstances of this matter the one hand and the law and decided cases on the subject of libel on the other. Being convinced and satisfied the lower Court found the Respondents liable to the Appellant and went further to award the sum of N300,000.00 as aggravated and exemplary damages to the Appellant against all the Respondents.
Dissatisfied with this judgment particularly as it relates to the issue of publication and quantum of damages, the appellant appealed to this Court in a notice of appeal dated 17th December, 2004 predicated on 4 grounds of appeal with very copious particulars. With the leave of this Court granted 22/11/2006, the appellant filed and argued 2 additional grounds of appeal. In a brief of argument dated 28/11/06, the appellant formulated 3 issues for determination in this appeal. They are as follows: –
i. Having regards to the state of the pleadings and, the unchallenged and uncontradicted evidence led in this case, was the learned trial Judge right when she held that the appellant did not prove the fact of publication of the libelous words?
ii. Whether the learned trial Judge was right when she held that the appellant did not establish that he was in fact defamed by the words complained of.
iii. Whether on a calm and proper appraisal of the entire evidence in this case, the award of N300,000.00 (Three Hundred Thousand Naira) as aggravated and exemplary damages is sufficient and adequate.
The case for the Respondents was argued in a brief, dated 4th June, 2007 but deemed properly filed on 15/11/07. The Respondents formulated the following single issue for the determination of this appeal. It is: –
“Whether having regard to the totality of the facts of this case the appellant proved a case of libel against the respondents?”
At the hearing of the respective appeal learned Counsel adopted and relied on their respective briefs of argument.
In arguing the 1st issue, learned Counsel to the Appellant started by reproducing the amended statement of claim as well as the statement of defence and noted also that paragraph 6 of the amended statement of claim is significant to the case of the Appellant notwithstanding the averment in paragraph 3 of the statement of defence. According to learned Counsel irrespective of the averment in paragraph 3 of the statement of defence, there is no doubt that the respondents could not have denied the Appellant’s pleadings with respect of the publication of the alleged libel. To support this view learned Counsel recalled the legal principle that a general traverse does not constitute a defence where a specific denial is required. He relied on the decisions in AKINTOLA V. BALOGUN (2000) 1 NWLR (PT.642) 532 at 545, SUFFIANU V. ANIMASHANU (2000) 4 NWLR (PT.688) 650 at 663 etc.
Upon this background, learned Counsel attacked the decision of the learned trial Judge that the averments in paragraphs 5-8 of the Statement of defence do not amount to admission of publication in the sense of having made the offensive words known to a third party.
Added to this, learned Counsel referred to the oral evidence of the Appellant and Exhibit E and then maintained that the learned trial Judge fell into an error when he failed to understand and find that there was sufficient unchallenged and uncontradicted evidence of publication. To anchor this point, learned Counsel referred to the decision of this Court in FAWEHINMI V. AKILU (1994) 6 NWLR (PT.351) 387 at 455-456 where it was held that the mere publication of a newspaper, book or magazine etc which is widely disseminated is good and prima facie evidence of publication as an essential ingredient in the proof of a libel. Learned Counsel also added the decision of this Court in UGO V. OKAFOR (1996) 3 NWLR (PT.438) 542 at 561 where it was held that it is not necessary in all cases to prove that the libelous matter was actually brought to the notice of some third party. While, also referring to GATLEY ON LIBEL AND SLANDER, 7th Edition page 1200 paragraph 1198 lines 22-30, learned Counsel underscored the point that the sale of a copy of a newspaper containing a libel at the newspaper office is evidence of a publication by the proprietor. Upon the foregoing learned Counsel submitted that the lower Court was wrong when it held that the appellant did not prove publication. He urged this Court to hold otherwise and set aside that finding of the lower Court.
In what I consider to be the reply of the Respondent on the issue of publication in his single issue for determination, learned Counsel referred to and reproduced paragraphs 10 and 11 of the amended statement of claim and juxtaposed same with the oral evidence of the Appellant at page 50 of the record. Learned Counsel referred to the Appellant as having said that the material publication in Exhibit E was done in bad faith and it had brought him into ridicule, contempt and general odium. According to learned Counsel, though the Appellant had expressed a desire to call more witnesses, the idea was abandoned in the course of the proceedings before the lower Court.
In trying to explain and restate the principles of law involved in this appeal learned Counsel said that in an action for libel the plaintiff must prove publication and this is known to involve making known of the publication complained of to a third party other than the plaintiff. Learned Counsel added that no action for libel can be sustained unless publication is proved. He then submitted that based on the facts and circumstances of this appeal, the Appellant had failed to prove publication of the alleged libelous material. In. support of this submission learned Counsel referred to the decisions of this Court in GIWA V. AJAYI (1993) 5 NWLR (PT.294) 423 and UGBOMMO V. HADOMEH (1997). 9 NWLR (PT.520) 307 as well as the decisions of the Supreme Court in the old case of AJAKAIYE V. OKANDEJI (1972) 1 SC 92, NSIRIM v. NSIRIM (1990) 3 NWLR (Pt.138) 285 and REGISTERED TRUSTEES OF AMORE v. AWONIYI (1994) 7 NWLR (PT.355) 154 and quoted very extensively from them.
With this as his spring board, learned Counsel explained that in the instant appeal, the persons referred to in paragraph 10 of the amended statement of claim who were averred to have over burdened the Appellant with incessant phone calls, letters and personal calls were never called to give oral evidence. Taking this matter to the next level, learned Counsel distinguished the cases of AFRICAN NEWSPAPERS LTD V. CIROMA (1996) 1 NWLR (PT.423) 156, UGO V. OKAFOR (1996) 3 NWLR (PT.438) 542 against the facts and circumstances of this appeal and submitted that the principles laid down therein were not applicable to this appeal. Learned Counsel referred to the case of ANATE V. SANUSI (2001) 11 NWLR (PT.725) 542 at 558 where the position of the law as he understood it was explained and re-stated and where also the comment of Uwaifo, JCA (as he then was) in AWONIYI (supra) was held to be obiter. He therefore urged this Court to hold that the Appellant had failed to prove publication thereby affirming the decision of the lower Court and its dismissal of the claim of the Appellant.
“I have carefully considered all the arguments and submissions of respective learned Counsel on the issue of publication and its effect in an action for libel. I have also taken into account the pleadings and the evidence led by the Appellant in support of the amended statement of claim as well as the various decided cases of this Court and the Supreme Court referred to in the briefs of respective learned Counsel.
Out of all these, I isolated the averments in paragraphs 9, 10 and 11 of the amended statement of claim and put them under scrutiny with a view to seeing whether the issue of publication revolving around them can be resolved. I wish now reproduce them thus: –
9. By the said words in their natural and ordinary meaning the defendants meant, and were understood to mean: –
vi. That the Plaintiff is a criminal.
vii. That the Plaintiff is not a fit and proper person to be appointed to head a sensitive and vital public office as the Delta State Independent Electoral Commission or any other public office for that matter.
viii.. That the Plaintiff is corrupt, fraudulent, perverse and undermining the growth and development of his Community.
ix. That the Plaintiff is dishonest, disloyal, unlawful, unfaithful and untrustworthy to his Traditional Ruler, his Community and the society in general.
x. That the Plaintiff is not worthy of any title/honour in his Community and in the society in general.
10. By the publication of the said words, the plaintiff has been over burdened by incessant phone-calls, letter and personal calls from concerned friends and members of the public.
11. By the publication of the said words the plaintiff has been greatly injured in his credit and reputation and has been brought into scandal, odium and contempt.
In his evidence before the lower Court, the appellant after debunking the statements concerning him in the alleged libelous material, went on to state that the publication was made in bad faith and same had brought him into contempt, ridicule and odium. He added further that the “publication” boosted the finances of the Respondents. There is no dispute that no further evidence was given on this subject by the Appellant and no other witnesses were called on either side to give more oral or documentary evidence.
It is a cardinal principle in the administration of justice and adjudication in this Country that cases must be decided based only on the evidence before the Court and the peculiar facts and circumstances of each. This principle is most germane in the adjudication of libel cases. There is no doubt that publication of an alleged defamatory or libelous material is at the heart of an action of this nature. All the decided cases that I have come across are unanimous that “publication” in libel cases bears a special technical meaning and is meant the making known of the defamatory matter to some persons other than the person of whom it is written. For example in NSIRIM v. NSIRIM (supra) the Supreme Court held that in order to succeed in an action for libel, a plaintiff must prove that the libelous material has been published by same having been communicated to some persons other than the Plaintiff himself.
It is also part and parcel of the law of defamation that a person’s reputation is not in the good opinion he has of himself but in the estimation of other people, or a class of people. It is the protection of that estimation that is the real subject and aim of the law. ‘It is also not any estimation, be it emotional, biased or sectional etc that is protected, but that estimation which has passed the test of reasonableness both in its content and the person holding the estimation.
Therefore, the determination of what constitutes publication is solely the decision of the Court having regards to the pleadings and the evidence adduced in support of same. See AFRICAN NEWSPAPERS V. CIROMA (1996) 1 NWLR (PT.423) 156 at 163-164.
It must be noted and emphasized that pleadings do not constitute evidence and a party must lead evidence oral or documentary in support of facts stated in his pleading. Averments in pleadings are mere paper tigers and are not evidence. It is therefore wrong for any Court to treat an averment in a pleading without evidence as evidence of matters averred therein.
However, because what is admitted need no further proof, an averment admitted by an adverse party does not necessitate any proof.
An analysis of the naked facts in paragraphs 9-11 of the amended statement of claim shows that the Appellant was reporting the feelings and attitude of other persons towards him after the publication of the alleged libelous news report. For example in paragraph 9 it was averred in part that: –
9. “By the said words in their natural and ordinary meaning the defendants meant, and were understood to mean…”
One may wish to ask “meant, and were understood” by who? The pleadings did not answer this poser and also none of the evidence adduced before the lower Court manages to have done so. Also in paragraph 10, it was averred that the Appellant was over burdened by incessant phone-calls, letters and personal calls from concerned friends and members of the public. For example, no transcripts of telephone calls, other calls records, letters or other record to show that this averment was no more than a mere statement was adduced in the course of this trial. Also no such members of the public or “concerned friends” were brought to testify. In my humble view it is this evidence that is significant or crucial for a successful prosecution of a libel action. In civil litigations, a plaintiff succeeds only on the strength of the case he is able to establish and not on the weakness of the case of the defendant(s). The Supreme Court has consistently remained steadfast that publication in its technical sense was always an essential ingredient of libel. See AJAKAIYE V. OKANDEJI, NSIRIM V. NSIRIM etc and this Court has also toed the path, charted by the Supreme Court. See for example, DOUGLAS V. PETERSIDE (1994) 3 NWLR (PT.330) 37, UGBOMOR V. HADOMEH (1997) 9 NWLR (PT.520) 307, ANATE V. SANUSI (2001) 11 NWLR (PT.725) 542 and GIWA V. AJAYI (1993) 5 NWLR (PT.294) 423.
The cases of UGBOMOR V. HADOMEH (Supra) and GIWA V. AJAYI are clear. In ANATE V. SANUSI (Supra) this Court saw the need for the Supreme Court to review its decision in AJAKAIYE V. OKANDEJI (Supra). No such review has to my knowledge taken place. The decision in OKANDEJI is so succinct and terse and leaves no one in doubt as to its effect. The effect was re-echoed by Tobi, JCA as then was : GIWA V. AJAYI (supra) at 433 D-F His Lordship said:
“One basic ingredient of defamation, whether it is libel or slander, is publication. In order to succeed, the plaintiff must prove the fact of publication. In other words, the plaintiff is under a burden to prove that the defamatory matter was published to a third party. And the law requires that the third party must not only be named but must also be clearly identifiable and identified.”
With respect to the facts and circumstances in GIWA, the Court held further: –
“In the instant case, there is no evidence as to whom the alleged defamatory matter was published. Since the plaintiff did not lead evidence on this very important aspect this Court is entitled to conclude that there was in law and in fact no publication of the alleged defamation. To me, that ends the matter.”
In the instant appeal paragraph 10 identified the persons to whom the alleged defamation was published but no such evidence was forthcoming from any of them.
In UGBOMOR V. HADOMEH (Supra) the decision in GIWA V. AJAYI was considered approved and applied after an overview of the averments in paragraphs 36 and 37 of the statement of claim therein. The Court held further as per Akpabio, JCA at page 321 H that: –
“the crucial matter in a case of libel or slander is publication, failure to properly plead and prove publication is fatal to the case and it is bound to collapse. This is because it is publication that gives such a case its cause of action.”
In view of the decisions of the Supreme Court in AJAIKAIYE v. OKANDEJI and NSIRIM v. NSIRIM the cases of FAWEHINMI v. AKILU and UGO v. OKAFOR could only have been specially decided by the Court of Appeal on their peculiar facts and circumstances as to render the Supreme decisions necessarily inapplicable.
In view of the failure of the appellant to call oral evidence from any of the persons identified in paragraph 10 of the amended statement of claim, I am of the firm view that there was no publication of the alleged defamatory words contained in Exhibit E. I therefore uphold and affirm the finding of the lower Court that there was no publication of libelous material. I also affirm the order dismissing the action in suit No.A/235/2002. This appeal totally lacks merit and it is hereby dismissed. I make no order for costs.
Because this issue has fully determined this appeal I do not see any need to go into the 2nd and 3rd issues formulated and argued in the Appellant’s brief of argument.
GEORGE OLADEINDE SHOREMI J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Gumel JCA. I am in perfect agreement with his reasoning and conclusion I adopt same as mine. The Appellant at the trial court took the matter so lightly as to omit what was has necessary for him to prove his case. He failed to call relevant and necessary witnesses to prove his averment in his pleadings. I therefore affirm and uphold the judgment of the lower court. The appeal is dismissed as lacking in merit. I award no cost.
CHIOMA EGONDU NWOSU-IHEME (Ph.D) J.C.A.: I agree
Appearances
Chief V. E. OtomiewoFor Appellant
AND
Edwin Anikwen Esq.For Respondent
