HON. LUCKY ODILI v. NIGERIA AGIP OIL COMPANY LIMITED
(2018)LCN/11775(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of June, 2018
CA/PH/455/2014
RATIO
ESSENCE OF A REGISTER’S SIGNATURE
It should be clear that the signature and stamp of the Registrar is for certification and no more. The Registrar is to issue the Writ of Summons, hence his signature. per AHMAD OLAREWAJU BELGORE, J.C.A.
A TRUE ALLEGATION CANNOT BE MALICIOUS
It was further argued on the issues of falsity of the petition and malice that an allegation which is true cannot be malicious at the same time. per AHMAD OLAREWAJU BELGORE, J.C.A.
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
HON. LUCKY ODILI Appellant(s)
AND
NIGERIA AGIP OIL COMPANY LTD Respondent(s)
AHMAD OLAREWAJU BELGORE, J.C.A. (Delivering the Leading Judgment):
The Appellant as plaintiff before the High Court of Rivers State instituted an action against the Respondent who were the Defendant vide a writ of Summons and Statement of Claim filed on the 30th day of March, 2012, upon the following Claims:
(a) A Declaration that the Defendant?s petition against the claimant are deceitful, malicious, unwarranted, and negligently executed with intention to spread falsehood, and damage the person and character of the claimant;
(b) An Order of Perpetual Injunction restraining the Defendant from raising further petition built on falsehood against the claimant and/or further defamation of character and person of the claimant.
(c) The sum of N500,000,000.00 (Five Hundred Million Naira) only being and representing adequate compensation against the defendant for the malicious falsehood against the claimant, and the defamation of the person and character of the claimant.
Upon the order of the lower Court granting an extension of time, the Respondent filed his statement of defence on the 28th day of June, 2012 wherein he denied Appellant?s allegations in the statement of claim and urged the trial Court to dismiss the claimant?s case with substantial cost. Written addresses were also filed and exchanged.
Upon consideration of the case of both parties, the learned trial Judge found the claimant?s case lacking in merit, dismissed same in its entirety and awarded a cost of N50,000.00 in favour of the Respondent.
Dissatisfied with the findings and conclusion of the learned trial Judge, Hon. Justice A. I. Iyayi-Lamikanra in his judgment dated the 11th day of March, 2013, the Appellant approached this Court vide a Notice of Appeal filed on the 21st day of May, 2014 upon the following grounds:
(A) GROUND ONE: ERROR IN LAW
The learned trial Judge erred in law when he stated thus:
?In other (Sic) to succeed in this case, the claimant must prove that Exhibit D is false. What was the Defendant?s General Manager District (Sic) supposed to do after receiving a threat message to the defendant?s operation? Was he supposed to keep quiet and do nothing about it? I think not ?..?
Without any proper evaluation of the case presented by the parties.
PARTICULARS OF ERROR:
(a) The case complained by the Appellant relates to malicious falsehood against him, not to anyone else.
(b) There was evidence that Respondent wrote the petition; Exhibit D and directly mentioned Appellant by name and phone number. The phone No. (Sic) and company name turned out to be false.
(c) Exhibit D even ex facie indicted the Appellant on facts which turned out to be false.
(d) The question before the trial Court was as to the liability or otherwise of the Respondent for making allegations against the Appellant which were subsequently found to be false especially as it relates to the Appellant.
(e) The issue for determination before the lower Court was not as to whether or not a threat message was sent to the Respondent.
(f) The trial Court was not called upon by either of the parties to ascertain the falsity of Exhibit D in its entirety.
(g) No proper evaluation was made by the learned trial Judge of the fact and documents presented in the case to arrive at a just conclusion as to whether Exhibit D was false.
(h) Apart from the Ipsi dixit of CW3 which was misrepresented, the learned Judge did not evaluate the Police report itself. Exhibit A.
(i) The denial of the said letter, Exhibit D, by the Respondent albeit evasively was not considered.
(j) The facts stated by the learned Judge at page 5 of the judgment in defence of the actions of the Respondent is not the case which was presented in their pleadings and evidence.
(k) Rather than carry out a proper evaluation of the case as required by law, the learned Judge raised question, and supplied evidence, and made suppositions not in the contemplation of the parties
(l) The dismissal of the Appellant?s case was too magisterial and denial of any proper legal consideration of the available evidence.
(m) Facts raised by the Appellant regarding-
(i) The timing of the allegation.
(ii) Failure of Respondent to respond to the invitation by the Police to assist in the investigation.
(iii) The Publication of the allegation on radio as stated by CW1 and CW2 the Police investigation.
(v) That the phone No. (Sic) and company name belong to Respondent?s business associates.
(vi) The fact that Respondent had access to Appellant and could have double checked the alleged information before the conclusive indictment of the Appellant.
(vii) Indictment of the Respondent as required by law by the Police were all not evaluated. See Exhibit A.
(viii) The conclusion reached was faulty and perverse.
(n) All these overwhelming evidence of bad faith and/or malice was overlooked and/or ignored by the lower Court.
(B) GROUND TWO: ERROR IN LAW
The learned trial Judge erred in law when he held as follows:
?That the Police exonerated the claimant cannot make Exhibit D to be false and malicious because exonerating the claimant is not conclusive evidence of malice or prima facie evidence of being malicious. I do not see any recklessness in Exhibit D, in fact, I do see what the General Manager or the defendant has done wrong?
Which is contrary to the available evidence in the case and this occasioned a miscarriage of Justice to the Appellant.
PARTICULARS OF ERROR
(a) Prima facie that the Police report exonerated the Appellant is indicative of the falsehood of Exhibit D.
(b) The Petition Exhibit D therefore was clearly false and has caused damage and injury to the Appellant.
(c) Malice is inferred and imputed, it may not be vivid on the face of Exhibit D
(d) Vital and material facts exist imputing malice in the actions of Respondent against the Appellant which the learned Judge clearly ignored.
(e) That the author of Exhibit D failed refused and neglected to respond to the Police invitation to test the veracity of his allegation indicate he was reckless in making it.
(f) No excuse whatsoever was proffered to explain the refusal of the Respondent to honour the Police invitations.
(g) Moreso, there was no evidence before the Honourable trial Court that the Appellant?s name was contained in the Sms (message(Sic)
(h) The content of the purported message complained about was clearly quoted on Exhibit D and duly highlighted. No name was mentioned therein.
(i) There is nothing to support the trial Court?s assumption that the ?phone number and name? is that of the Appellant. Moreso, the phone containing the purported Sms message was not tendered and admitted in evidence.
(j) That the said author of Exhibit D also failed to testify in Court for the defence of this case is further proof of his recklessness in setting the law against the Appellant for no tangible reason.
(k) The trial Court was thus relying on mere conjectures when he held that the name of the Appellant was contained in the message.
(l) It is the conduct of the author ipso facto Respondent subsequent to issuing the said Exhibit D that malice can be imputed from contrary to the holding of the learned judge.
(m) Of course, ibijusibire medium (Sic)
(n) Of course, these postulations and suppositions were not the defence of the Respondent both in its pleadings and evidence.
(o) The conclusion of the learned trial Judge was without evidential basis and clearly resulted in a miscarriage of justice.
(C) GROUND THREE: MISDIRECTION IN LAW
The learned trial Judge misdirected himself when he stated thus:
?This is because the Defendant?s General Manager District (Sic) received a threat message, and reported same to the Police. How the Police carried out their investigation should not be the Defendant?s concern. I observed that the Police is not joined as a party in this suit. At any event it is the constitutional duty of the Police to act upon the complaint of any member of the public when reasonable suspicion of crime is reported.”
PARTICULARS OF MISDIRECTION
(a) It is the duty of the Police to receive complaints bordering on breach of the law.
(b) It is not the duty of the Public to give to the Police false and malicious information which can of course, give rise to prosecution for giving false information to the Police.
(c) The Public (Respondent inclusive) have the duty to make a report to the Police and also a corresponding duty to assist police in their investigation of any report made.
(d) Failure to assist the Police in the course of investigation of a report can give rise to criminal and civil liabilities as in this case and also imputation of malice. See Exhibit A ? Police Report.
(e) Contrary to the statement of the learned trial Judge, the Police is not a dumping ground for all sorts of reports against innocent citizens.
(f) Police did no wrong to the Appellant in this case, it was the Respondent that sent the Police after the Appellant on a false allegation thus causing him injury and damage.
(g) The law is trite that he who acts through another, acts for himself.
(h) It is the law that both principal and agents are joint tort-feasort who may be sued jointly or severally.
(i) It is not in doubt that Exhibit D set in motion all the acts complained and inconveniences of by the Appellant (Sic).
(j) (Sic) it is a misstatement of law that Respondent has no further duty leading to liability after making a report of serious allegations to the Police against a citizen.
(k) Note the evidence of CW3 that Police could not verify the allegation of threat as in Exhibit D as respondent refused or failed to show up during investigation.
(D) GROUND FOUR: ERROR IN LAW
The learned trial Judge erred in law when he proceeded suo motu to raise and/or build up a defence on behalf of the Respondent and this occasioned a gross miscarriage of justice to the Appellant.
PARTICULARS OF ERROR
(a) The Respondent at the lower Court categorically denied making Exhibit D.
(b) The trial Court in its judgment found as a fact that the defence put up by the Respondent does not stand as the Court held that Exhibit D was written for and on behalf of the Respondent.
(c) The trial Judge thereafter proceeded to advocate and build up a defence totally different from that put by the Respondent.
(d) The trial Judge also dismissed the Appellant?s case solely on the defence which he suomotoraised on behalf of the Respondent.
(E) GROUND FIVE ERROR IN LAW
The learned trial Judge erred in law when he placed an unusual burden on the Appellant and this occasioned miscarriage of justice.
PARTICULARS OF ERROR
(a) The Court in the judgment found as a fact that Exhibit D was made by the Respondent.
(b) In civil cases, parties are bound by their pleadings.
(c) From the evidence before the Court, the sms complained about by the Respondent in Exhibit D did not emanate from the Appellant.
Briefs of Argument were filed and exchanged. In the Appellant?s Brief of Argument filed on the 4th day of July, 2014, the Appellant?s counsel submitted three issues for the determination of this honourable Court; to wit:
(1) Was the learned trial Judge not wrong in failing to evaluate the evidence placed before him by the parties before reaching its decision thereby giving rise to a gross miscarriage of justice against the Appellant? [GROUNDS 1 AND 4].
(2) Was the learned trial Judge correct to raise suo motu a defence for the Respondent and reach a conclusion therefrom?
(3) Whether from the facts and evidence presented in the case, the learned judge adequately considered the burden of proof before arriving at a conclusion that the Respondent was not liable [GROUNDS 3, 5 and 6].
In arguing the first issue, Appellant?s counsel argued that the Appellant?s case at the Court below primarily rests on whether the said petitions was based on false allegations against the Appellant which was written out of malice, and not whether Exhibit D which is the said Petition was false or not. It was submitted for the Appellant that there was no basis for placing an unusual burden on the Appellant by requiring him to prove that no threat Sms was at any time sent to the Respondent by anybody, the Court having agreed that the allegations against the Appellant by the Respondent were not true, and more so in view of the fact that Respondent shunned all invitations by the Police aimed at substantiating the claim.
Learned counsel referred this honourable Court to NEWBREED ORG LTD V. ERHORMOSELE (2006) 5 NWLR [PT. 974) 499 @ 544-545 Paras F-C.
It was further argued that rather than act on Exhibits A-C and E ?P tendered by the Appellant which would have shown inferred malice not vivid on the face of Exhibit D, the trial Judge merely wrongfully descended into the arena to reach conclusions not based upon documents/evidence before him. We were referred to the cases of SUBERU V. STATE (2010) 3 SC [PT.11) 105, B.P.E. (NIG) LTD V. ROLI HOTELS LTD (2006)ALL FWLR (PT 314) @ 211 and ADEBAYO V. ADUSEI (2004) 4 NWLR (PT.816) 44.
It was finally submitted on this issue that the learned trial Judge failed to properly evaluate all the evidence placed before him before reaching his decision.
On the second issue, learned counsel for the Appellant submitted that the learned trial Judge failed to maintain judicial neutrality as an unbiased umpire.
It was submitted in argument that the Respondent having clearly denied making Exhibit D, the lower Court was wrong to have set up a case for the Respondent different from that which they set up in their pleading. This Court was referred to OGUNDELE V. AGIRI (2010) ALL NLR 1 @ 31, ONIAH V. ONYIA (1989) 2 SC (PT.1) 6 (1989) 1 NWLR (PT. 99) P.514.
On issue three, Appellant counsel submitted that from the totality of evidence adduced, the Respondent was negligent in making the allegation contained in Exhibit D against the Appellant. It was argued that the trial Court failed to consider the timing of the publication and other surrounding circumstances. It was submitted that this failure led the learned trial Judge to arrive at a perverse decision.
This Court was finally urged to allow this appeal, set aside the judgment of the Court below and enter judgment for the Appellant.
On the part of the Respondent, a Respondent?s Brief of Argument was deemed filed on the 8th day of February, 2016 wherein a preliminary objection was raised against the competence of the Appellant?s appeal.
The objection is premised on the following grounds:
(1) The writ of Summons initialling Suit No. PHC/694/2012 before the trial Court was not signed by a legal practitioner as required by law and ab-initis did not ignite the jurisdiction of the trial Court. Consequently the proceedings and judgment of the Court below are null and void.
(2) The null proceedings and judgment of the Court below are incapable of sustaining this appeal and the Court of Appeal, as a result, is deprived of jurisdiction to entertain the appeal.
From the above grounds, a sole issue was raised for the determination of this honourable Court to wit:
Did the writ of Summons which was not signed by a legal Practitioner validly initiate Suit No.PHC/455/2012 so as to ignite the jurisdiction of the trial Court?
In arguing the Preliminary objection, the Respondent submitted that the writ of Summons dated the 30th March, 2012 is incurably defective having not been signed. It was further argued that the writ did not activate the jurisdiction of the lower Court, and consequently this Court.
This Court was referred to – BRAITHWAITE V. SKYE BANK OF NIGERIA PLC (2013) 5 NWLR [PT. 1346], MADUKOLU V. NKEMDILIM (1962) ALL NLR 587 @ 595, SLB CONSORTIUM LTD V. NNPC (2011) 9 NWLR [1252] 317 @ 332-333 PARAS F ?A.
This Court was urged to hold as a nullity, the proceedings and judgment of the Court below in this suit and dismiss this appeal.
On the substance of the Respondent?s Brief, learned counsel for the Respondent submitted a sole issue for determination and same is reproduced below:
Whether the learned trial Judge was not right in holding that the claimant?s (Appellant?s) case is lacking in merit and proceeding to dismiss same.
In arguing the sole issue, the Respondent?s counsel submitted that the Appellant failed to establish any of the ingredients of the tort of malicious falsehood or of defamation and thus not entitled to judgment.
?
It was argued that Appellant?s claim is based on alleged malicious falsehood as well as on defamation; both of which are hinged on Exhibit D. Learned Counsel for the Respondent maintained that the precise words of defamation were not pleaded and relied upon to sustain the claim of defamation, while malice, falsehood and actual damage being the ingredients of malicious falsehood were equally not proved. This court was referred to:
YESUFU V. GBADAMOSI (1993) 6 NWLR [PT. 299] 363, BANK OF THE NORTH LTD V. ALHAJI MAMMAN MURI (1998) 2 NWLR [536] 153 @ 168 PARAS C-D and NEWBREED ORGANISATION LTD V. ERHOMOSELE (2002) 13 NLWR [PT. 784] 251 @ 261 -262 G-C, (SUPRA) @ 261 -262 PARAS G-C.
It was further argued on the issues of falsity of the petition and malice that an allegation which is true cannot be malicious at the same time. Learned counsel for the Respondent maintained that having found as a fact that the General Manager District received a threat from the GSM Number, the burden of establishing the falsity of the threat, the burden was on the Appellant which they could not have been discharged through call history as testified by CW3 in place of the message portal of the said GSM Number. This court was referred to:
CDC (NIG) LTD V. SCOA (NIG) LTD (2007) 6 NWLR [PT. 1030] 300 @327 PARAS A- B.
They further submitted in argument that there was no proof of damage suffered by the Appellant as a result of the written words having failed to lead evidence in proof of the alleged inconvenience.
This Court was finally urged to dismiss the appeal and affirm the Judgment of the Court below.
The Appellant, in reaction to the Respondent?s Brief of Argument further filed an Appellant?s Reply Brief of Argument on the 10th day of February, 2016 containing response to both the preliminary objection and the Respondent?s substantive arguments.
In response to the objection, it was argued that by virtue of Order 3(3) and Order 6(2) (1) of the High Court of Rivers State (Civil Procedure) Rules, 2010, the signature of the Legal Practitioner is not a pre-requisite to the issuance of a writ of Summons. They maintained that once the writ is signed by the Registrar and the necessary accompanying process are signed by the legal practitioner as in the instant case, the suit can be said to be validly instituted. This honourable Court was consequently urged to dismiss the preliminary objection for lacking in merit.
In reply to the substantive arguments of the Respondent, it was submitted that the Respondent?s argument are an attempt to change their case which cannot be sustained.
This Court was referred to the case of FATUNBI V. OLANLOYE (2004) SC. 68.
It was also submitted on the issue of non-joinder of the Police in the matter that the Appellant need not join the Police since Respondents acted through the Police. It was maintained that:
(1) He who acts through another act for himself.
(2) Where there are two or more joint tort feasors, the claimant is at liberty to sue them either jointly or severally.
(3) A matter shall not be defected by reason of the non-joinder of parties.
This Court was referred to:
R. O. IYERE V. BENDEL FEED AND FLOUR MILL LTD (2008) 7-12 SC 151, IFEANYI CHUKWU (OSONDU) LTD V. SOLEH BONEH LTD (2000) 5 NWLR [PT. 656] @ 322.
This Court was urged to discountenance the argument of the Respondent and allow this appeal.
The Preliminary Objection is based solely on the fact that the Writ of Summons, being the originating process was not signed either by the Appellant or his Legal Practitioner. The Appellant?s response is that by virtue of Order 3, Rule 3 and Order 6, Rule 2 (1) of the High Court of Rivers State (Civil Procedure) Rules, 2010, it is not a pre-requisite that Writ of Summons must be signed by the Legal Practitioner.
Order 3, Rule 3 and Order 6 Rule 2 (1) provide as follows:-
?Order 3, Rule 3-
Except in the cases in which any different forms are provided in these rules, the Writ of Summons shall be in Form 1 with such modification or variation as circumstances may require;
Order 6, Rule 2 (1) ?
The Registrar shall sign and stamp every originating process where upon it shall be deemed to be issued.”
Learned Senior counsel for the Appellant limited his submissions to provisions of the Rules of the lower Court here above quoted which on its face gives the impression that it is only the Registrar that is required to sign an originating process. It has also been submitted for the Appellant that it is not only the Writ of Summons that constitutes originating process. It is his submission that statement of claim, verifying affidavit, witness statement, an oath, etc filed along with the Writ of Summon together form the initiating originating process.
?With due respect, I beg to differ. What the learned Silk is saying here cannot represent the law as it stands today.
All those processes listed by him are only required to be front-loaded and filed along with the originating process, i.e. the Writ of Summons. While none of those processes can stand alone as originating process, Writ of Summon has globally been accorded that designation. This stand maintained by the learned Senior counsel for the Appellant explains why he restricted himself to citingOrder 3, Rule 3 and Order 6, Rule 2 (1) of the High Court of Rivers State (Civil Procedure) Rules, 2010. He should have gone further to cite Order 6, Rule 2 (3) of the same Rule which provides as follows:
?Order 6, Rule 2 (3) ?
Each copy shall be signed and stamped by the Legal Practitioner or by a claimant where he sues in person and shall be certified after verification by the Registrar as being a true copy of the original process filed.”
It should be clear that the signature and stamp of the Registrar is for certification and no more. The Registrar is to issue the Writ of Summons, hence his signature.
The suit initiated through the instrumentality of a Writ of Summons is purely the business between the claimant and his Legal Practitioner.
It does not involve the Registrar and he has no business signing a document of which he is not the author or maker. His business is that of verification and certification. Neither the claimant nor his Legal Practitioner can abdicate their duty to sign the originating process.
Failure in the instant case on the part of the Appellant or his Legal Practitioner to sign the Writ of Summon is fatal to the Appellant?s case. By virtue of Order 6, Rule 2 (3) the claimant or his Legal Practitioner is still required to sign the originating process, which in the instant case is the Writ of Summons. Omission of the Appellant or Legal Practitioner to sign the Writ of Summons has rendered the entire proceedings before the lower Court a nullity. Both the trial Court and this Court lack the jurisdiction to entertain this action, and I so hold.
The action before the lower Court in Suit No. PHC/694/2012 being incompetent cannot donate jurisdiction to either the lower Court or to this Court.
The Preliminary Objection succeeds and it is hereby upheld.
In the premises, this appeal is liable to be struck out and is hereby struck out.
The suit in High Court is also hereby struck out.
Cost assessed at N150,000.00 is awarded in favour of the Respondent.
FATIMA OMORO AKINBAMI, J.C.A.: I agree
PAUL OBI ELECHI, J.C.A.: I agree
Appearances:
G.I. Abibo, SAN with him, M.O. Onyi, Esq., S.M. Ewvigbe, Esq., P. Bereweriso,Esq. and T. P. ItumuroalaFor Appellant(s)
O.J. Irerhime, Esq.For Respondent(s)
Appearances
G.I. Abibo, SAN with him, M.O. Onyi, Esq., S.M. Ewvigbe, Esq., P. Bereweriso,Esq. and T. P. ItumuroalaFor Appellant
AND
O.J. Irerhime, Esq.For Respondent
