IKPEME v. REGISTERED TRUSTEES OF THE PRESBYTERIAN CHURCH OF NIGERIA (2021)

IKPEME v. REGISTERED TRUSTEES OF THE PRESBYTERIAN CHURCH OF NIGERIA

(2021)LCN/14940(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, January 08, 2021

CA/C/26/2018

RATIO

TRIAL: NATURE OF A TRIAL

A trial is not an investigation and investigation is not the function of the Courts. A trial is the public demonstration and testing of the evidence of the contesting parties. The demonstration is by evidence and the testing is by cross examination.
The function of the trial Court is to decide between the parties based on the quality and weight of evidence. PER MOJEED ADEKUNLE OWOADE, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

CHARLES FRANCIS IKPEME APPELANT(S)

And

REGISTERED TRUSTEES OF THE PRESBYTERIAN CHURCH OF NIGERIA RESPONDENT(S)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Cross River State presided over by Hon. Justice Maurice O. Eneji sitting in Calabar on 18/10/2017.

The Appellant as Claimant took out a Writ of Summons accompanied by Statement of Claim against the Defendant Respondent on 28/1/2014. The claims of the Appellant summed up in paragraph 31 of the Statement of Claim on page 10 of the Record of Appeal thus:
By reason of the said false and malicious publication the Claimant has been injured in his reputation and character and has consequently suffered damage and therefore claims from the Defendant as follows:
1. The sum of N25,000,000.00 (Twenty Five Million Naira) only being damages for libel.
2. The sum of N19,000,000.00 (Nineteen Million Naira) only being estimated loss of annual income for 10 (ten) years from the Claimant’s last employers.
3. Full Page Publication of a retraction of the libelous publication under reference and appropriate apology in not less than two nationally-read newspapers and continuously for not less than 5 (five) days.

Pleadings were filed and exchanged culminating to the Amended Statement of Defence of 9/3/2016 and the Reply to Statement of Defence of 5/11/2015.

The Appellant as Claimant alleged libelous publication by the Respondent as contained in the Respondent’s 2011 Synod Reports – Exhibit I which caused the Graphic Plus Communications to disengage him from its services as in Exhibit 1.

The Respondent denied the existence of Graphic Plus Communications, admitted the publication but pleaded that it was a privileged publication. The Appellant witnessed as CW1 and the Respondent also called a sole witness as DW1.

At the end of the trial, the learned trial judge found that the Appellant failed to prove defamation in that the Appellant did not call a third party to witness the publication and the impression it caused on the Appellant. Appellant’s Claimant’s case was dismissed for lack of evidence.

The elaborate reasoning of the learned trial judge in coming to the conclusion to dismiss the Appellant’s case could be found starting from page 188 of the Records. In particular, after referring to the case of EKONG v. OTOP (2014) 11 NWLR

(Pt. 1419) 549 @ 567-568 on page 189 of the Records, the learned trial judge continued and held thus:
From the above decision, it is expected that in an action for libel, the Claimant must be able to establish that the publication was made to a third party, who in fact must testify to his understanding of the wordings of the publication and his feelings about the Claimant after coming into contact with the publication.
The Claimant in the instant case has not called any third party as a witness to the defamatory publication. He has stated that his friends, relations, colleagues and associates read and called him over the defamatory publication. Yet he did not call any of them as his witness. He has equally stated that the Defendant published the libelous materials in her “2011 Synod Report” to the entire Presbyterian Church of Nigeria, Calabar Synod and beyond, (see paragraph 3 and 6 of the Claimant’s Statement of Claim and oath). Yet not one member of the entire Presbyterian Church has come to testify in his support in the above regard. The Claimant has in paragraphs 22 and 23 of his Statement of claim and oath, stated that as a

result of the defamatory publication by the Defendant via Exhibit 1, Graphic Plus Communications, disengaged him from their company on 30th December, 2011. Yet not even one executive member or employee of that company, has testified before this Court, adducing evidence to the effect that he/she read the defamatory publication, and that it informed their company’s decision to disengage the Claimant from their company.
The entire evidence led by the Claimant in this case, points to the fact that he has been allegedly libeled. But the offensive publication in law, is not addressed to him/published to him. The law contemplates that it should be published to a third party/an entirely different person other than himself, the Claimant. So his failure to a call a third party to testify in proof of the defamatory publication, is completely fatal to his case, as it cannot and remains unproved in the absence of a third party evidence.

Dissatisfied with the judgment, the Appellant filed a Notice of Appeal containing two (2) grounds of Appeal in this Court on 21/11/2017.
Appellant’s brief of Argument was filed on 8/2/2018. It is settled by Eyo

Nsa Ekpo, Esq.
Respondent’s brief of Argument was filed on 23/3/2018. It is settled by A. A. Asuquo, Esq.

Learned counsel for the Appellant nominated two issues for the determination of the Appeal. They are:
1. Whether the learned trial judge was right to ignore Exhibit II which shows that the defamatory content of Exhibit 1 was duly published to a third party in consequence of which the Claimant/Appellant was injured in the estimation of right thinking members of the public, injured in his reputation, his office, trade and profession and also injured in his financial credit?
2. Whether by her evidence led, the Respondent had raised any reasonable defence in this suit in opposition to the evidence of the Appellant and whether the Appellant has not established a prima facie case of publication of Exhibit 1?

Learned counsel for the Respondent adopted the two issues nominated by the Appellant for the determination of the appeal.

On Issue No. 1, learned counsel for the Appellant reiterated the ingredients of the tort of libel through the case of SKETCH PUBLISHING CO. LTD. v. AJAGBEMOKEFERI (1989) 2 SCNJ 151 @ 169 to wit:

The publication was in a permanent form.
ii. The statement referred to him.
iii. The statement is defamatory to him in the sense that:
(a) It lowered him in the estimation of right thinking members of the society.
(b) It exposed him to hatred, ridicule and contempt or
(c) It injured his financial credit.

He submitted in the light of the foregoing, that Exhibit 1, the defamatory material was published in a permanent form and specifically referred to the Appellant by mentioning his name. He reasoned that the learned trial judge was wrong to conclude that the defamatory content of Exhibit 1 was not published to a third party. This, he said is because Exhibit II which was admitted without objection is a letter dated 30th December, 2011 written by the Appellant’s last employer to the Appellant stating clearly that because of the defamatory content of Exhibit 1, the Appellant is being disengaged.

He submitted that Exhibit II being a document is the best evidence and having been admitted without objection, the lower Court was bound to accept it in proof of the issue contested between the parties and act upon it. He referred to

the cases of FOLORUNSHO & ANOR v. SHALOUB (1994) 3 NWLR (Pt. 333) 413 @ 433; UBN LTD. v. OGBOH (1995) 2 NWLR (Pt. 380) 647 @ 654 AND 669, and concluded on Issue No. 1 that the learned trial judge was wrong to ignore Exhibit II and in consequence thereof arrived at the wrong conclusion that the defamatory contents of Exhibit I was not published to a third party.

On Issue No. 1, learned counsel for the Respondent submitted that Exhibit II was tendered to show that the libellous publication in Exhibit I was actually published against him to a third party – Graphic Plus Communications. That the Appellant did not call any person from Graphic Plus Communications to testify in the lower Court for the purpose of showing the extent for which he (Appellant) was lowered in estimation of the company – Graphic Plus Communications.

Learned counsel for the Respondent submitted that the Appellant misconstrued the purport of the decision in SKETCH PUBLISHING CO. LTD. v. AJAGBEMOKEFERI (1989) 2 SCNJ 151 @ 169. That flowing from the case of SKETCH PUBLISHING CO. LTD. v. AJAGBEMOKEFERI (supra), the reasoning of the Appellant as regards libel cases is

that once a defamatory material is published against a plaintiff, damages flow once the plaintiff can prove publication. But that the position of the law is that it is only when the publication is published to a third party who having read same, change his or her opinion about the plaintiff and so testifies in Court on his new feelings about the plaintiff.

In other words, to succeed in a case of libel, the underlisted conditions according to Respondent’s counsel must be satisfied.
(a) There was a publication in a permanent form.
(b) The publication referred to the plaintiff.
(c) The publication is defamatory of the plaintiff in the sense that:
(i) It lowered the plaintiff in the estimation of right thinking members of the society.
(ii) It exposes him to hatred, ridicule and contempt; or
(iii) It injured his financial credit.

Learned counsel for the Respondent referred to the meaning of “publication” as stated in the 6th Edition of the Black’s Law Dictionary and further referred to the case of MOHAMMED v. BABALOLA (2012) 5 NWLR (Pt. 1293) 398 @ 425 and submitted that to prove publication by

admissible evidence to some person other than the person to whom the matter was written means that a person other than person to whom the matter was written must testify in Court and show how he felt after the defamatory article was read to him. That, he said is the only way to prove libel.

He submitted that in the instant case, Exhibit I was proved to have been published but nobody came out to say how he felt about the plaintiff on receiving or reading Exhibit 1.
That Exhibit II was a mere letter purportedly terminating the Appellant as a staff of a company known as and called Graphic Plus Communications, an advertising company.

Learned counsel for the Respondent submitted further that in paragraphs 16, 17 and 18 of the Amended Statement of Defence, the Respondent/Defendant denied that Graphic Plus Communications is a private company known to law and that the letter of employment, Exhibit 10 was made for the purpose of this case. That by denying the legal entity of the Graphic Plus Communications, the legal burden had shifted to the Appellant to discharge the burden of establishing that Graphic Plus Communications is a legal entity.

He referred on this to the cases of REPTICO S. A. GENEVA v. AFRIBANK NIG. PLC. (2013) 14 NWLR (Pt. 1373) 172 @ 211; EKWEOZOR v. THE REGISTERED TRUSTEES OF SAVIOUR’S APOSTOLIC CHURCH OF NIGERIA (2014) 16 NWLR (Pt. 1434) 433 @ 465.

He submitted that in the instant appeal, apart from the fact that the Appellant admitted the pleading of the Respondent that Graphic Plus Communications is not an incorporated company known to law, he did not lead any evidence in establishing the existence of the company. Besides, according to Respondent’s counsel, nobody from Graphic Plus Communications testified in support of Exhibit II to show that the publication in Exhibit I actually defamed the Appellant and so lowered him in the estimation of the company to the extent that the company could not retain him.

He added that the failure of the Respondent to object to the admissibility of Exhibits I and II and the fact that they were admitted in evidence did not make any difference or added any value to the case of the Appellant.

He concluded on Issue No. 1 that the authorities cited by the learned counsel for the Appellant as documents being the best evidence

are not applicable in the instant case. This, he said is because while relevancy governs admissibility, no amount of documents tendered and admitted as exhibits in libel case can ground a claim on libel. Libel can only be proved by a third party who read the publication and is willing to testify to that fact in open Court.

In deciding Issue No. 1, one would say that Exhibit 1 tendered by the Appellant and admitted by the Respondent established the publication of a statement by the Respondent, however Exhibit II did not and could not have established the fact that the publication in Exhibit I was defamatory of the Appellant.
The reason for the above is not just because of the allegation by the Respondent that Exhibit II is a lie nor just because the Appellant did not deny the Respondent’s allegation that Exhibit II is a lie.
The more important reason for the lack of proof that the publication in Exhibit I was defamatory of the Appellant in the context of the case is that Exhibit II was not demonstrated or ignited by oral evidence. The proof of publication being defamatory cannot be done by a document such as Exhibit II per se which was not spoken

A trial is not an investigation and investigation is not the function of the Courts. A trial is the public demonstration and testing of the evidence of the contesting parties. The demonstration is by evidence and the testing is by cross examination.
The function of the trial Court is to decide between the parties based on the quality and weight of evidence.
In relation to cases of libel, this was exactly what the Court of Appeal had in mind when it held in the case of MOHAMMED v. BABALOLA (2012) 5 NWLR (Pt. 1293) 398 @ 425 that:
“——- publication in this regard means the making known of the defamatory matter to some persons other than the person to whom the matter was written.”
In the instant case, both the learned trial judge and the learned counsel for the Respondent in this case were right to say that the position of the law is that it is only when the publication is published to a third party who having read same, changed his or her opinion about the plaintiff and so testifies in Court on his new feelings about the plaintiff that claim of libel can succeed.
Issue No. 1 is resolved against the Appellant.

On issue No. 2, learned counsel for the Appellant submitted that by their pleadings, the Respondent asserted the following:
i. Claimant did not work with Graphic Plus Communications.
ii. The Defendant’s publication contained in Exhibit 1 was privileged.
iii. The publication in Exhibit 1 is the truth.
iv. Graphic Plus communication is not a body known to the law.

Learned counsel for the Appellant submitted that the evidential burden of proving the above assertions rests squarely on her shoulders, a burden which he said the Respondent failed to discharge.

He submitted that, it is not necessary in every case that words complained of were brought to the actual attention of some third party.
He argues that if the plaintiff proves facts, as in this case, from which it can be inferred that the words were brought to the attention of some third party, he will establish a prima facie case of publication. This, said counsel is particularly so where the defamatory material complained of are contained in a book, newspaper, magazine, post card or journal. The production of a copy such as Exhibit I will generally be accepted in Court as

prima facie evidence of publication.

He submitted that the law presumes that by their very nature the aforementioned documents are presumed to be read by some other persons however poor their circulation.

He referred to the cases of UGO v. OKAFOR (1996) 3 NWLR (Pt. 438) 542 @ 561; AMATE v. SANUSI (2002) FWLR (Pt. 93) 1902 @ 1924; REGISTERED TRUSTEES OF THE ROSICRUCIAN ORDER (AMORC) v. AWONIYI (1990) 6 NWLR (Pt. 154) 42; SALAUDEEN v. MAMMAN (2000) FWLR (Pt. 17) 20.

Learned counsel for the Appellant added that the Respondent had failed to rebut the presumption of publication raised by the Appellant having tendered and admitted Exhibit I without objection.
He concluded that the Respondent did not raise any or reasonable defence to the case of the Appellant because the entire evidence of DW1 amounted to inadmissible hearsay.

On issue 2, starting from the contention of the Appellant that the evidential burden of proving that Graphic Plus Communications does not exist, learned counsel for the Respondent submitted that the law is settled that where as in this case the legal status of a company is denied, the burden automatically shifts to the

party that alleges the existence of that company to establish its existence.

On this, learned counsel for the Respondent referred again to the cases of REPTICO S. A. GENEVA v. AFRIBANK NIG PLC (2013) 14 NWLR (Pt. 1373) 172 @ 211 and EKWEOZOR v. THE REGISTERED TRUSTEES OF SAVIOUR APOSTOLIC CHURCH OF NIGERIA (2014) 16 NWLR (Pt. 1434) 433 @ 465.

He reiterated that the burden was on the Appellant to have established the fact that Graphic Plus Communications is a company known to law. And, that having not established that Graphic Plus communication is known to law, the fact whether or not the said company actually employed the Appellant does not arise and was no issue in the Court below.

On the contention of the Appellant that once a defamatory material is published, libel is established, Respondent’s counsel submitted that the Respondent did not deny the publication in Exhibit I. However, that the Appellant failed to lead evidence to show that he was actually defamed by the publication and so did not discharge the burden placed on him by law.

Learned counsel for the Respondent reiterated that the key factors required to establish libel are

that there must be publication of libellous document to a third party and that the publication must have the effect of injuring the plaintiff in his office, trade or profession.
He referred to the cases of PROFESSOR KINGSLEY OWONIYI OLOGE & ORS. v. NEW AFRICAN HOLDINGS (2013) 17 NWLR (Pt. 1348) 449 @ 469; and MOHAMMED v. BABALOLA (2012) 5 NWLR (Pt. 1293) 395 @ 425.

Finally, learned counsel for the Respondent referred to the case of SALEH v. BANK OF THE NORTH (2006) 6 NWLR (Pt. 976) 316 @ 326 – 327 to the effect that the evidence of DW1 who testified for the Defendant/Respondent as the Education Secretary of the Calabar Education Authority, the department the Appellant worked could not be regarded as hearsay evidence. This, he said is because DW1 gave evidence of recorded transactions on behalf of a corporate body and needed not to have actually took part in the said transaction.
He urged us to hold that the lower Court was right in dismissing the case of the Appellant.

In between the parties to this appeal, I cannot see the difference in their submissions on issue No.1 and issue No. 2. For this reason, I whole heartedly adopt my

decision on issue No. 1 to the resolution of issue No. 2.

For emphasis, the Appellant as plaintiff kept on hammering on the issue of publication, yet the fact of publication of Exhibit I was indeed admitted by the Respondent/Defendant. The failure of the Appellant’s case which left no evidential burden on the Respondent was the failure to prove by evidence that the Respondent’s publication was defamatory of the Appellant. Here, I repeat, that feat was not and could not have been achieved by the tendering and admission of Exhibit II.

The Appellant needed to call oral evidence to prove the content of Exhibit II or perhaps he needed a witness to have spoken to and/or demonstrate the content of Exhibit II.

This failure by the Appellant amounted to not proving a vital ingredient of the tort of libel and even without pleadings by the Respondent/Defendant; the Appellant’s case would have failed.

The learned trial judge was right to have dismissed the Appellant’s case for failure to call a third party apart from himself unlike it happened in other decided cases cited by the Appellant to prove that the publication was indeed

defamatory of the Appellant.
Issue No. 2 is resolved against the Appellant.
Having resolved the two (2) issues in this appeal against the Appellant, the appeal lacks merit and it is accordingly dismissed.
Parties to the appeal are to bear their respective costs.

HAMMA AKAWU BARKA, J.C.A.: I was opportuned to have seen in draft the judgment just delivered by my Learned brother Mojeed Adekunle Owoade, JCA.

Having also perused the records and listened to the submissions of learned counsel, I agree with the reasoning and the conclusion reached to the effect that the appeal lacks merit and it is hereby dismissed by me.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother, Mojeed A. Owoade, JCA.

My Learned brother has carefully and meticulously dealt with the two issues nominated by the appellant in this appeal. I entirely agree with the reasoning and conclusion reached in the dismissing this appeal. I also dismiss the unmeritorious appeal and abide by the consequential orders.

Appearances:

EYO NSA EKPO, ESQ. For Appellant(s)

A. ASUQUO, ESQ. For Respondent(s)