ISAAC E. NWAENANG V. CHIEF EDET W. NDARAKE & ORS
(2013)LCN/6175(CA)
In The Court of Appeal of Nigeria
On Thursday, the 9th day of May, 2013
CA/C/178/2011
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
ISAAC E. NWAENANG Appellant(s)
AND
1. CHIEF EDET W. NDARAKE
2. CHIEF EDMOND N. OKON
3. CHIEF NKPOUTO B. ESSIEN
4. CHIEF BEN EKPENYONG
5. CHIEF IYAKE OKON UKOETE
6. CHIEF OKON UBONG EKONGITO
7. CHIEF BASSEY NELSON UKOETTE
8. BASSEY ASUQUO ASUQUO
9. ALOYSIUS E. ASUQUO
10. ABANG OKON ABANG Respondent(s)
RATIO
DEFINITION OF A COUNTER-CLAIM
A counter claim is a cross action by a defendant usually incorporated in his statement of defence, which is made against the plaintiff in the main or initial action and for the purposes of the rules of pleadings and proof, the defendant who makes a counter claim becomes the plaintiff and the plaintiff against whom it was made, becomes the defendant in respect of the counter claim. See Dabup v Kolo (1993) 12 SCNJ, 1; Odunsi v. Bamgbala (1995) SCNJ 276 at 286; Usman v Garke (2003) 7 SC 33, (03) 14 NWLR (840) 261; Ogli Oko Mem. Farms Ltd. (1098) 412; Effiom v Ironbar (2000) 11 NWLR (678) 344.
For our purpose here, Order 17 Rule 6 of the Akwa Ibom State High Court Civil Procedure Rules, 2009 (to be called the High Court Rules hereafter) provide for counter claim as follows:-
“17- 6. Where any defendant seeks to rely upon any ground as supporting a right of set off or counter claim, he shall in his defence state specifically that he does so by way of supporting a right of set-off or counter claim.”
In simple language, these provisions require that, where a defendant to an action wishes to make and rely on a counter claim, or set-off; as the case may be, he shall do so in his defence, setting out the facts on which he intends to rely for the counter claim or set-off. Because a counter claim is a separate and independent action to the main claim, the defendant who makes a counter claim against a plaintiff and desired that the trial court enters judgment in his favour in respect thereof, owes the legal burden of proof in law in respect thereof. For the rules of pleadings, he becomes the plaintiff and he can only succeed in respect of the counter claim if he discharges the initial evidential burden of proof. The burden of proof in respect of a counter claim only shifts to a plaintiff in the main action but defendant to the counter claim, when the trial court was satisfied that the defendant had discharged the burden of proof. See Jeric Nig. Ltd. v UBN Plc (2000) 12 SCNJ, 184 at 201; General Oil Ltd. v F.S.B. International Bank Plc (2005) 5 NWLR (979) 579 at 597. PER GARBA, J.C.A.
THE TORT OF LIBEL OR DEFAMATION
The law is that a person commits the tort of libel or defamation when he or she publishes to a third person, words, orally or in writing, containing untrue or false information against the reputation and integrity of another. See Ciroma v Alli (1999) 2 NWLR (590) 317; F.M.B. v Adesokan (2003) 3 NWLR 19 at 29; Akintola v Avum (1961) ALL NLR, 508; Ishaku v Aina (2003) 11 NWLR (883) 146; Esika v Medolu (1997) 2 NWLR (485) 54 at 58; Concord Press Nig. Ltd. v Asaolu (1999) 10 NWLR (621) 123; Sketch v Mokeferi (1989) 1 NWLR (100) 678. From the definition of the tort of libel or defamation therefore, for a plaintiff to succeed in an action for the tort, he has to prove the following essential ingredients on the preponderance of evidence:-
a) that the words or statement were spoken or made by the defendants
b) that such words or statement referred to him;
c) that the words or statement were spoken to or communicated to a third party; that i.e., the words or statement were published
d) that the words or statement were defamatory or libelous of him,
e) that the words or statement were false or untrue and
f) that there was no justifiable legal grounds for the publication of the words or statement.
See Labati v Badmus (2006) 1 NWLR (1041) 199; Ihoaba-Chie v. Iloaba Chie (2005) 13 NWLR (943) 695; NEPA v Inameti (2002) FWLR (130) 1695; Mayange v. Punch Newspapers Nig. Ltd. (1994) 7 NWLR 358.
Another point of law worthy of mention here is that it is the court that decides or determines in the end, whether the words complained of in an action for libel or defamation are in fact and law, defamatory or libelous of the plaintiff after assessing the evidence adduced and the peculiar circumstances of the case. See Okafor v Ifeanyi (2007) 12 NSCC, 43; Giwa Amu v Guardian Newspapers (1999) 8 NWLR (616) 568; Ayeni v Adesina (2007) 7 NWLR (1033) 233, (07) ALL FWLR (370) 1451; African Newspapers v Ciroma (1996) 1 NWLR (423) 156 at 163; Sketch v Ajagbemokeferi (supra); Vanguard v Olafisoye (2011) LPELR, 42. PER GARBA, J.C.A.
MOHAMMED LAWAL GARBA, J.C.A (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Akwa Ibom State, Uyo in the Appellant’s suit No. HU/77/95 delivered on the 8/4/2011. The Appellant’s case against the Respondents before the High Court was set out in the paragraphs 7 – 10 of the Amended Statement of Claim dated and filed on the 7/7/1997 as follows:-
“7. On the 13th December, 1994, the defendants and two others namely, Chief David E, Akpakip and Chief Okon Ndem jointly and severally falsely and maliciously published of and concerning the plaintiff;
A letter titled – Re: Petition, Factors Necessary for Peaceful Co-existence to the Chairman & Managing Director of Mobil Producing (Nig.) Unlimited, Victoria Island, Lagos. The said letter is hereby pleaded.
8. At pages 1 and 2 of the aforesaid fetter, the defendants made the following libelous statements against the Plaintiff;
(i) “That no good community as ours would allow someone with dubious behavior to lead them. It could be recalled in the history of Mkpanak that Mr. Isaac E, Nwaenang who claimed to be the co-ordinator of none existing body was found to be the leader of 419 gang during the Nigerian Civil War. He deceitfully collected some items such as heads of tobacco, bags of salt to mention but a few on behalf of Mkpanak Council of Chiefs invited him with his gang for interrogation. There he was found guilty and was punished accordingly together with others.”
“In another development, he insulted the Chiefs of Mkpanak and took them to the former Eket Local Government Council where he went back with shame. He was asked to give one goat and not drink as fine to the Chiefs which he had not done it till now.”
The said words referred to and were understood to refer to the Plaintiff on record.
9. The above statements were written of and concerning the plaintiff and were published to many people including:-
i) Operations Manager, Mobil producing (Nig.) Unlimited, Qua Iboe Terminal.
ii) The Area Operations Manager, Mobil Producing (Nig.) Unltd., Qua Iboe Terminal
iii) Otunba Solomon A. Oladumni (Mobil House, Lagos)
iv) Public Affairs Adviser, Mobil producing (Nig.) Unlimited; Qua Iboe Terminal.
v) The Chief Registrar, Ministry of Justice, Akwa Ibom State, Uyo.
vi) Owong Barrister A. M. Ukot, Clan Head of Ibeno.
10. By the said statements/words in their natural and ordinary meanings, the defendants meant and were understood to mean that the plaintiff is a social misfit, a fraudster, a thief, an outcast and a renegade who cannot lead his.”
In the Respondents’ Amended statement of defence dated the 1/11/99, the Respondents denied the Appellants’ case and in a separate counter claim dated the same date but filed on the 11/11/99, counter claimed against the Appellant in respect of the petitions written by him to Mobil Producing Nigeria Unlimited, in terms similar to those claimed by the Appellant. The Appellant denied the counter claims by the Respondents in the defence to the counter claim dated the 20th but filed on the 23/12/1999.
At the trial, the Appellant testified and called one other witness in support of his case while the 1st, 3rd and 10th Respondents testified in defence and support of the counter claim and after taking final addresses from the learned counsel for the parties, the High Court entered the aforementioned judgment in the following terms:-
“On the totality of the evidence before me, the statement by and 2nd – 10th defendants in Exhibit 3 in respect of the war time relief materials against the plaintiff was libelous of him. The statements made in exhibits 1 and 2 against the 1st defendant by the plaintiff were libelous of the 1st defendant. The plaintiff and the 1st defendant have separately proved that libel was published of them without justification. Their causes of action are complete and they need not prove that they suffered any resulting actual damage or injury to their reputation. Such damage is presumed. This is so because every person is entitled to his reputation and good name. See the case of: Inland Bank (Nig.) Ltd. v F&S Co. Ltd. supra Held 8.
Award of general damages in a case of libel is discretionary depending on the peculiar facts and circumstance of each case. See the case of:- Asheik v Media Trust Nig. Ltd. supra Held 16
In the final result it is ordered that judgment be and is hereby entered against the 2nd – 10th defendants who signed Exhibit ‘3’ as follows:
1) The 2nd – 10th defendants shall jointly and severally pay to the plaintiff a sum of N3,000,000.00 as general damages for publishing libelous material against the plaintiff in respect of the relief materials.
2) The 2nd – 10th defendants are hereby restrained by themselves, their servants, agents or privies from further publishing the said words or similar words as regards the war time relief materials against the plaintiff.
In respect of the counter claim and as been shown that the plaintiff carried out the initial attack on the 1st defendant, it is ordered that judgment also be and is hereby entered against the plaintiff as follows:-
a) The plaintiff shall pay to the 1st defendant a sum of N3,000,000.00 as general damages for publishing libelous materials against the 1st defendant.
b) The plaintiff is hereby restrained by himself, his agents and servants from further publishing the said or similar libel of and concerning the 1st defendant.”
The Appellant’s notice of appeal against the above judgment contains four (4) grounds of dissatisfaction with it and in the Appellants’ brief filed with the leave of the court on the 5/12/12, Dr. Akwaowo Essien, Esq., had submitted the following issues for determination in the appeal:-
“3.01. Whether the court below was right in denying the appellant the opportunity of leading evidence on his defence to counter-claim including tendering pleaded documents as the counter-claimants failed to swap position and lead evidence on their counter-claim thus occasioning miscarriage of justice on the part of the appellant.
3.02 Whether the court below was right in awarding damages for libel in favour of the 1st respondent when exhibits 1 and 2 were fair comments on matters of public interest to the parties’ and were made to people who had corresponding interests to receive them and the occasion, therefore, privileged?
3.03 Whether the court below was right when it held that the decision of the Secretary of Eket Council was binding upon the parties and would be taken to be conclusive as any decision of a legally constituted court of law whereas it was not in accordance with the custom of the parties regarding deforestation of primeval forest.
3.04 Whether the court below was right in awarding the appellant a paltry damage not commensurate with the standing in society, the mode, extent and the effect of the libelous words on the appellant as laid down in David West v Odumote (2003) FWLR (Pt. 163) 146 Ratio 4.
As can easily be observed, there is no indication in the brief from which of the grounds of the appeal each or any of the above issues was distilled, as required by prudent and diligent practice of brief writing. It is merely simplistic to assume that because there are four (4) grounds of appeal, the issues were formulated from them. Because of the law is that for every issue in an appeal to be competent for consideration and determination in the appeal, it must be distilled from the competent grounds of the appeal or at least from a ground of the appeal, the need for a specific indication in the briefs of argument by learned counsel for the parties to an appeal, from which of such grounds of appeal they formulate issues for decision in the appeal, cannot be over emphasized. The point must not be left to assumption or even speculation by the court in the course of deciding an appeal.
From the record of the court, on the 4/12/12 when Ubong Edemekong, Esq., of counsel for the Appellant was granted extension of time to file the Appellants’ brief within seven (7) days thence and the appeal set down for hearing on the 18/3/13, Chief E. E.. Eneyo, Esq., of counsel for the Respondents was in court. A copy of the Appellant’s brief was served on him along with the motion for extension of time to file it and he said he had no objection to the grant of the motion.
On the 18/3/2013 when the appeal came up for hearing because Chief E. E. Eneyo, Esq., was award of the date, but was absent from court without any communication to the court to excuse the absence and the fact that he had not filed the Respondent’s brief within the time prescribed by the Rules of court and there was no record before the court of any step taken by him to do so, the court proceeded to with the hearing of the appeal as scheduled. The court was satisfied from an endorsed copy of the Appellants’ brief filed on the 5/12/12 that Chief Eneyo was duly served therewith, on the 12/2/13. There is therefore no Respondents’ brief in the appeal, which as a consequence, is left uncontested. Although the appeal is in law uncontested, the same law imposes a duty on the court to still consider and determine whether the appeal is sustainable on the grounds upon which it is premised because the absence of the Respondents’ brief did not in any way mitigate the duty on the Appellant to satisfy the court that he is entitled to succeed in the appeal. The absence of the Respondent’s brief in an appeal does not guarantee an automatic success of the appeal which at all time, is to succeed on its merit or fail for the lack – of it. See John Holt Ventures Ltd. v Oputa (1996) 9 NWLR (470) 101; Solau v Par-Kovi (2001) 13 NWLR (731) 602; Echere v. Ezirike (2006) ALL FWLR (323) 1597.
Looking at the Appellant’s grounds of appeal, the issues formulated by learned counsel would appear to be derivable from them and so I would consider the issues as formulated.
The 1st issue is whether the Appellant was denied the opportunity to lead evidence on his defence to the counter claim. It was submitted that a counter claim is a cross action which serves the same purpose as a statement of claim; thereby making the counter-claimant, a plaintiff for the purposes of the rules of pleadings. That a counter claim is therefore, to all intents and purposes, a separate action although for convenience and speed, it is included in the defendant’s statement defence, citing Ogbonna v A-G. Imo State (1992) NWLR (220) 647 at 654 and O.M.T.C. Ltd. v B. V. Ltd. (2011) NWLR (1252) 303 at 306. Learned counsel then referred to page 270 of the record of appeal and said he had raised the issue of the counter claim but the High Court did not deal with it saying that it did not know how he wanted to go about it if he did not treat it before closing his case. He submitted that the parties did not swap positions in respect of the counter claim and so the Appellant was not able to lead evidence on his defence to counter claim.
Learned counsel referred to and set out the ruling of the High Court on the issue at page 276 of the record of appeal, against which he said there was no appeal. According to him, the nature of the Appellant’s defence to the counter claim, at pages 119 – 123 of the record of appeal, in which documents were pleaded, made it absolutely necessary for the parties to swap positions in the counter claim to enable them lead evidence thereon and that the Appellant never intended to abandon his defence to the counter claim. That because the parties did not swap positions in respect of the counter claim, the Appellant was denied fair hearing enshrined in Section 36 of the 1999 Constitution (as altered). It was the further submission by counsel that in exceptional situation where there was one plaintiff and one defendant, “the ruling by the High Court may well be tendered but not so in the circumstances of this appeal “. He said the High Court in the ruling did not advert to the fact that evidence was not led on the defence to the counter claim as cross-examination could not have been legally used to have done so. We were urged to allow the appeal on the issue.
On his issue 2, learned counsel had submitted that the damages awarded to the Appellant against the 2-10th Respondents were ridiculously low and that awarded against him in favour of the 1st Respondent, was ridiculously high and oppressive for singling him out of the people who signed Exhibits 1 and 2. According to him, exhibits 1 and 2, written by the Peoples Forum, Mkpanak Communities of which he was the Co-ordinator, contain facts about the going-ons in their community and speak for themselves. Further, that the Forum was opposed to the 1st Respondent not to continue to act any more as the “mouthpiece for Mobil” and that Exhs. 1 and 2 were copied to people who had interest to receive them as fair comments on matters of public interest to the parties in the communities. It was his contention that since no witness was called from Mobil to testify that the Exhibits were defamatory of the 1st Respondent or DW3 and that no damages were suffered, the Exhibits were not defamatory, relying on ACB Ltd. v Apugo (2001) 84 LRCN, 688. In further argument, learned counsel said if the Appellant had been allowed to give evidence on his defence to the counter claim, a complete defence of justification and fair comment would have been disclosed to the counter claim against him. Citing the statement of Belgore, JSC, in Din v African Newspaper Ltd. (1990) 3 NWLR (139) 392 at 398 that “the law of defamation in Nigeria has not changed even by latest developments in law, for a man is still entitled to his good name and to be called what he is but not when he as a slur, he submitted that the High Court was in grave error in awarding the 1st Respondent any damages. He urged us to allow the appeal on the issue and set aside the damages awarded the 1st Respondent.
Issue 3 was whether the High Court was right in holding that the decision by the Secretary of Eket Council was binding and conclusive. The submissions by counsel are that customary arbitration is a common method of settling disputes in our indigenous communities which is founded on the voluntary submission of the parties to the decision of the arbitrators. That it becomes binding after signification of its acceptance. It was contention of counsel that the decision of Secretary of the Eket Council lacked the ingredients and pre-conditions for a valid customary arbitration which were laid down in the case of Okereke v Nwankwo (2003) 9 NWLR (826) 592 as follows:
a) There had been a voluntary submission of the parties in the dispute to an arbitration of one or more persons.
b) It was agreed by the parties either expressly or by implication that the decision of the arbitrators would be accepted as final and binding.
c) The arbitration was in accordance with the customs of the parties or their trade or business.
d) The arbitrators reached a decision and published their award.
e) The decision or award was accepted at the time it was made. See also Agu v Ikewibe (1991) 3 NWLR (Pt. 180) 385; Odonigi v Oyeleke (2001) 6 NWLR (Pt. 708) 12.”
Learned counsel submitted that of particular importance is ingredient (c) above which requires that the arbitration be in accordance with the customs of the parties or their trade or business. He said it is a generally recognized custom that whoever clears a forest from its primeval state, has title to it and that the Appellant had in fact defended the inheritance left by his father when he was taken before the Secretary of Eket Council. Counsel argued that the decision by the Secretary can hardly be said to be in accordance with the customs of the parties or that the parties voluntarily submitted to arbitration, consciously indicated their willingness to be bound by the result and accepted same after the award. He said the decision by the Secretary cannot therefore create estoppels per rem judicatam, citing Okereke v Nwankwo (supra), that it was not binding on the Appellant. We were urged to allow the appeal on the issue.
On the last issue 4, learned counsel had submitted that the assessment of damages in a successful libel action is not dependent upon any successful legal rules but on the peculiar circumstances of the case. That a person is entitled to his good name and reputation and where a person is unduly besmirched without good cause or justification, as in the case of the Appellant, he is entitled to recover damages as a solace for his injured reputation and proof of damages is unnecessary. The cases of Emeagwara v. Guardian Newspapers Ltd. (1998) 1 NWLR (535) 610 and UBN Ltd. v Oredein (1992) 6 NWLR (247) 355 were relied on for the submission. Furthermore, it was submitted that in awarding damages, a trial court is entitled to consider the decline in the purchasing power or value of the naira as a medium of exchange between the time an action was filed and when judgment was actually delivered, on the authority of Asheik v M. T. Nig. Ltd. (2010) 15 NWLR (1215) 114 at 129. It was pointed out that it was more than sixteen (16) years between the filing of the writ of summons and delivery of judgment in the Appellant’s case. It was then submitted that general damages which the law presumes to flow from the wrong complained of, are discretionary and dependent on the peculiar facts and circumstances of a case and so one case is a binding authority for another. Factors to be considered by a court in awarding damages for libel, as set out in the case of Akomolafe v Nig. Exchange Insurance Ltd. (2000) FWLR (27) 2010 at 2020, were referred as follows:
1) The standing and position of the plaintiff;
2) The nature of the libel and innuendo;
3) The gravity of the words complied of;
4) The absence of apology or retraction;
5) The extent and mode of publication; and
6) The conduct of the defendants from the time of publication to the time of trial and verdict.
The case of West v Odumole (2003) FWLR (163) 146 was referred to on the factors by counsel who argued that the High Court failed to consider the Appellant’s standing in his society, state and country in awarding him damages. Cross examination of PW2 at page 195 of the record of appeal was cited and it was contended that Exhibit 3 was actuated by malice and selfishness in order to improve their financial and economic fortunes. Counsel submitted that the High Court was in grave error in failing to take into consideration, the factors set out above and playing down the standing of the Appellant. We were urged by learned counsel to set aside the award of damages to the 1st respondent and “to augment the N3m awarded the Appellant against the 2nd – 10th respondent”.
In conclusion, learned counsel urged that the appeal be allowed in terms of the above submissions.
It may be recalled that the complaint of the Appellant in the issue 1 was that he was not given or afforded the opportunity to lead evidence on his defence to the counter claim. Learned counsel is right on the position of the law on the status of a counter claim in an action that it is a separate and distinct claim by a defendant, which is usually raised in a counter statement of defence filed in the main action. A counter claim is a cross action by a defendant usually incorporated in his statement of defence, which is made against the plaintiff in the main or initial action and for the purposes of the rules of pleadings and proof, the defendant who makes a counter claim becomes the plaintiff and the plaintiff against whom it was made, becomes the defendant in respect of the counter claim. See Dabup v Kolo (1993) 12 SCNJ, 1; Odunsi v. Bamgbala (1995) SCNJ 276 at 286; Usman v Garke (2003) 7 SC 33, (03) 14 NWLR (840) 261; Ogli Oko Mem. Farms Ltd. (1098) 412; Effiom v Ironbar (2000) 11 NWLR (678) 344.
For our purpose here, Order 17 Rule 6 of the Akwa Ibom State High Court Civil Procedure Rules, 2009 (to be called the High Court Rules hereafter) provide for counter claim as follows:-
“17- 6. Where any defendant seeks to rely upon any ground as supporting a right of set off or counter claim, he shall in his defence state specifically that he does so by way of supporting a right of set-off or counter claim.”
In simple language, these provisions require that, where a defendant to an action wishes to make and rely on a counter claim, or set-off; as the case may be, he shall do so in his defence, setting out the facts on which he intends to rely for the counter claim or set-off.
Because a counter claim is a separate and independent action to the main claim, the defendant who makes a counter claim against a plaintiff and desired that the trial court enters judgment in his favour in respect thereof, owes the legal burden of proof in law in respect thereof. For the rules of pleadings, he becomes the plaintiff and he can only succeed in respect of the counter claim if he discharges the initial evidential burden of proof. The burden of proof in respect of a counter claim only shifts to a plaintiff in the main action but defendant to the counter claim, when the trial court was satisfied that the defendant had discharged the burden of proof. See Jeric Nig. Ltd. v UBN Plc (2000) 12 SCNJ, 184 at 201; General Oil Ltd. v F.S.B. International Bank Plc (2005) 5 NWLR (979) 579 at 597.
The primary complaint of the Appellant in respect of his defence to the counter claim by the Respondents is that he was not allowed to lead evidence on it. He referred to page 270 of the record of the appeal where the issue was said to have been raised at the trial. In the course of cross examination of DW3 i.e. the 1st Respondent, the learned counsel for the Appellant had sought to tender a letter in evidence to which the learned counsel for the Respondent objected and so the following arguments ensued between learned counsel at page 270 of the record of appeal:-
“Dr. Essien: The defendants ‘counsel has brought a new issue. The court must note the issue of counter claim.
Court: I have considered every issue raised by both counsel vis-a-vis the document sought to be tendered as an Exhibit and later sought to be withdrawn. The witness said under cross-examination that he was aware that Chief Nkpouto Essien wrote a petition against him. That presupposed that it was Nkpouto Essien alone and no-one else wrote the petition. The first point to note is that the document sought to be tendered was not written by Chief Nkpouto Essien alone but by four persons including Saviour Bassey, Esendffi, J. A. Mboso, A.E. Asuquo and Nkpouto Essien, So when the witness said he was aware of the petition written by Chief Nkpouto Essien, he may not have meant the one written by four persons Nkpouto Essien. It is possible for Nkpouto Essien to write a petition alone against the witness and also join others to unto another petition against the witness. To that extent the fact that the witness said he was aware of a petition written by Chief Nkpouto Essien is not enough to hold as relevant for the purpose of tendering as an exhibit, a petition allegedly written by Nkpouto Essien in conjunction with others. Another point to note is the issue of counter claim, I don’t know how the plaintiff waited to handle it if he did not make some inroad unto it before he closed his case.
The High Court then said at page 27I on the issue of the counter-claim, that
“Another point to note is the issue of counter-claim. I don’t know how the plaintiff waited to handle it if he did not make some inroad unto it before he closed his case.”
Briefly, the learned counsel for the Appellant had said the letter he sought to tender in evidence was relevant in rebutting the counter claim and he withdraw it, if the Respondents were not making counter claim. Inspite of the objection to the withdrawal of the letter, the High Court allowed it to be withdrawn, making the above statement on the counter claim.
The learned counsel for the Appellant had also raised the issue of the counter claim at the close of the Respondents’ case where at page 275 of the record of appeal, the proceedings were thus:
“Chief Eneyo: That’s the case for the defendants.
Dr. Essien: The defendants did not lead evidence on their counter claim.
Chief Eneyo: In the course of filing our witnesses they testified on the counter claim.
Dr. Essien: The witnesses did not testify on the counter claim.
The law is that when counter claim is heard the parties swooped portions and we did not swoop any portions in the case.”
Thereafter the High Court observed at page 276, that:-
“Court: If the defendants had laid evidence on their counter claim it will show in the court’s records but if they did not it would mean that they abandoned same. Once there is evidence on counter claim, it would not matter that portions were not physically changed. Everything can be inferred from questions that were asked and answered in cross examination.”
It is clear that from the statement by the learned counsel for the Appellant, his position is that the Respondents did not lead evidence on their counter claim in because the parties did not swap positions in the course of the trial of the counter claim. The position of the learned counsel for the Respondents was that the witnesses who testified in the case, have testified on the counter claim. This raises the issue of procedure and practice of how a counter claim is to be proved by a defendant and how a defence there to shall be proved by a plaintiff in the course of the proceedings of the trial of the main action. The learned counsel for the Appellant would appear to suggest that after the plaintiff had led evidence to prove his claim against the defendant in the main action and the defendant had led evidence to defend that action, the parties would then lead separate evidence in respect of the counter claim by the defendant, as plaintiff thereto and the plaintiff as defendant thereto. Although the learned counsel had said that the law is that when a counter claim is heard, the parties swap positions, he did not cite or refer to any authority on the point as to how the positions are to be swapped by the parties at the hearing. However, like I have stated before now, the law is that for the purposes of rules of pleadings and proof, a counter claimant is a plaintiff and the party against which the counter claim was made, becomes the defendant in respect of the counter claim.
The High Court Rules do not contain provisions on how the proof of a counter claim is to be made or defended except that each party owes the burden of proving any claim he makes against another, whether as a plaintiff in the main claim or as a counter claimant, in a counter claim. Because as stated earlier, a counter claim is a cross or independent action, the pleadings thereof take the place of statement of claim and is governed by the rules of pleadings by which the defendant automatically assumes the position of a plaintiff for the purpose of proof. See Haido v Usman (2004) ALL FWLR (201) 1765 at 1781-2; Ige v Farinde (1995) 7 NWLR (354) 42. However, in the course of the proceedings of the case in which a defendant makes a counter claim, the defendant would still be referred to as the defendant although for the purposes of his counter claim, he assumes the role of a plaintiff who bears the legal burden of proving it if he was to succeed on it. This is usually done in order to avoid confusion in the interchanging roles of the parties in the case as was pointed out by the apex court in the case of Okukuje v Akwido (2001) FWLR (39) 1487 at 1546.
By way of general practice, although a counter claim is a separate or cross action from the main action, the two are tried and heard together for convenience and in order to save time in line with the general objective of the Rules of court which permit or require a defendant to include a counter claim in his statement of defence to the main action instead of filing a separate action against the plaintiff. It is therefore desirable that where the crucial issues that are raised in both the main action by the plaintiff and the counter claim by the defendant, arose from the same transaction and can be determined together from the same set of facts and circumstances evidence of which would substantially prove or disprove either that they be heard together. In that situation, each of the parties, bearing in mind its position and role in each of the transactions as prescribed by the rules of pleadings and proof, would lead evidence to prove and defend its case respectively. This can be done in either of the two ways:-
i) the plaintiff to the main action would call or lead evidence first, to prove his claim against the defendant and also to defend the counter claim by the plaintiff in line with the pleadings contained in the statement of defence to the counter claim, if any. After leading such evidence, the plaintiff then ends or closes his case for the defendant to start or open his own defence and proof of the counter claim.
The defendant would then adduce or call evidence to defend the action of the plaintiff and also in proof the counter claim he made against the plaintiff, again in line with the facts and issues found in the pleadings in the counter claim.
This procedure is one which saves time and more convenient even though it appears to have overlooked the requirement that as a plaintiff for the purposes of a counter claim, the defendant was to have started the proof his counter claim before the plaintiff and defendant thereto was to make his defence to it. However that has, in my view, been taken care of by the fact that having joined issues in their pleadings in the counter claim, each of the pafties has therefore narrowed down the evidence to be led in respect of their cases in the counter claim and the law is that none of them can validly lead evidence outside his pleadings. Consequently, none of them would be taken by surprise if evidence was led by them in line with pleadings on the counter claim. Their appropriate positions in the main action and in the counter claim would therefore be presented by the evidence led or adduced by them in its entirety as it relates to the burden of proof which lies on each of them. Whether or not each has discharged the burden which lies on him as required by law, would be considered by the court in its evaluation of that evidence at the conclusion of hearing in the case. Under this procedure, the swapping of positions by the parties in respect of the counter claim would therefore arise in the consideration and assessment of the evidence adduced by them in respect thereof. See Oyegbola v Esso W.A. Incorp. (1966) 1 ALL NLR, 170; Okwoko v Co-op & Comm. Bank Plc (1997) 6 NWLR (507) 48.
Or.
(ii) The plaintiff would first prove his claim by leading evidence on the pleadings contained in his statement of claim and then at the end or close of that evidence, the defendant would lead evidence to defend the claim by the plaintiff at the end of which, he then separately lead evidence in support of the counter claim he made against the plaintiff. At the end of the defendant’s evidence on the counter claim, the plaintiff would lead evidence separately to defend the counter claim as a defendant thereto. This is the procedure alluded to by the learned counsel for the Appellant when he, in his submissions on the issue insisted that the parties did not swap positions on the counter claim. However, learned counsel, as seen in the extract of the proceedings at page 275 of the record, had maintained that the Respondents did not lead evidence and that their witnesses did not testify on the counter claim. If that was his position, why is he complaining now that he was denied opportunity to lead evidence on the defence to the counter claim? Of what legal use and value would the evidence on defence of the counter claim would have been in the counter claim if counsel believed that the Respondents did not call evidence to prove it at the trial? Was the proposed evidence intended to disprove that which he said was not proved by the Respondents? There can be more questions to be asked on the point but in view of paragraph 4.3.01 of the learned counsel’s final address in the case, which appears at page 138 of the record of the appeal, I would ask no more. This was what he said in that paragraph:-
“4.3.01. The defendants filed a counter-claim in this suit and led evidence in their attempt to prove same but woefully failed to do so…”
As can easily be observed, the above position is a dramatic flip and complete summersault from the position taken by learned counsel at the trial that the Respondents’ witnesses did not testify on the counter claim and that no evidence was led on it.
Be that as it may, the High Court had provided a complete answer to whether or not evidence was led on the counter claim by the Respondents when it said at page 276 of the record of the appeal that:-
“Court: If the defendants had laid evidence on their counter claim it will show in the court’s record but if they did not it would mean that they abandoned same. Once there is evidence on the counter claim, it would not matter that portions (sic) were not physically changed. Everything can be inferred from questions that were asked and answered in cross examination.”
Perhaps I should say that whichever of the two procedures set out above was adopted by a trial court in the hearing of a counter claim, as long as the parties were provided with opportunity to state their respective cases, they cannot complain that one and not the other procedure was adopted by the trial court if they voluntarily acquiesced in the one adopted.
I have observed that inspite of the above position by the High Court and the earlier withdrawal of a document which he said was relevant to the defence to the counter claim, learned counsel for the Appellant did not make any attempt to lead evidence on the defence to the counter claim. It was the duty of learned counsel to have notified the High Court at the close of the Respondents’ evidence that he intended and desired to lead evidence in defence of the counter claim if he did not do so before he closed the case for the Appellant because he was waiting to “swap position) in the counter claim. It may be remembered that the High Court had forewarned the learned counsel for the Appellant on the counter claim when it said at page 271 of the record of appeal in the ruling on the document tendered by him during the cross examination of the 1st Respondent. Once more, this was what that court said:-
“Another point to note is the issue of counter claim. I don’t know how the plaintiff waited to handle it if he did not make some inroad unto it before he closed his case.”
So if at the close of the Respondents’ evidence, learned counsel for the Appellant did not inform the High Court that he intended to lead evidence in defence of the counter claim, including the document it permitted him to withdraw, can he conscientiously and seriously complaint at this stage that he was not given or afforded the opportunity to lead such evidence? Was the Appellant denied fair hearing in the circumstances of the case, as it I relates to the counter claim. My firm answer is that the learned counsel for the Appellant has not demonstrated from the record of the appeal, that the procedure adopted by the High Court at the hearing of the case before it, had denied the Appellant the opportunity to lead evidence on the defence to the counter claim. What the record of the proceedings show in respect of the counter claim in particular, is that the Appellant and counsel had adequate and reasonable opportunity to lead whatever evidence they desired in support of the defence to the counter claim but failed to utilize it diligently. Learned counsel cannot now properly claim that the Appellant was denied fair hearing in respect of the counter claim if he did not notify the High Court that he intended to call and lead evidence on the defence thereto and was refused the opportunity to do so. See ANPP v INEC (2010) 13 NWLR (1212) 549; Chami v UBA Plc (2010) 6 NWLR (1191) 474 at 497. For these reasons, I resolve the issue against the Appellant.
The issue 2 is whether the High Court was right to award damages for libel in favour of the 1st Respondent when the contents of Exhibits 1 and 2 were fair comment and privileged. By way of introduction, the tort of libel, also known as defamation, is a statement made either orally or written, by a person in respect of or against another calculated to bring him into hatred, ridicule, contempt, disrepute and odium and which tends to lower the person concerned, in the estimation of right thinking members of the society and which causes him to be avoided or shunned by people with whom he ordinarily and normally relate. Generally, the statement is made to another or other persons with the intention and calculated to injure the person in respect of whom it was made, in his office, profession or trade, his standing and reputation in the society generally. The law is that a person commits the tort of libel or defamation when he or she publishes to a third person, words, orally or in writing, containing untrue or false information against the reputation and integrity of another. See Ciroma v Alli (1999) 2 NWLR (590) 317; F.M.B. v Adesokan (2003) 3 NWLR 19 at 29; Akintola v Avum (1961) ALL NLR, 508; Ishaku v Aina (2003) 11 NWLR (883) 146; Esika v Medolu (1997) 2 NWLR (485) 54 at 58; Concord Press Nig. Ltd. v Asaolu (1999) 10 NWLR (621) 123; Sketch v Mokeferi (1989) 1 NWLR (100) 678. From the definition of the tort of libel or defamation therefore, for a plaintiff to succeed in an action for the tort, he has to prove the following essential ingredients on the preponderance of evidence:-
a) that the words or statement were spoken or made by the defendants
b) that such words or statement referred to him;
c) that the words or statement were spoken to or communicated to a third party; that i.e., the words or statement were published
d) that the words or statement were defamatory or libelous of him,
e) that the words or statement were false or untrue and
f) that there was no justifiable legal grounds for the publication of the words or statement.
See Labati v Badmus (2006) 1 NWLR (1041) 199; Ihoaba-Chie v. Iloaba Chie (2005) 13 NWLR (943) 695; NEPA v Inameti (2002) FWLR (130) 1695; Mayange v. Punch Newspapers Nig. Ltd. (1994) 7 NWLR 358.
Another point of law worthy of mention here is that it is the court that decides or determines in the end, whether the words complained of in an action for libel or defamation are in fact and law, defamatory or libelous of the plaintiff after assessing the evidence adduced and the peculiar circumstances of the case. See Okafor v Ifeanyi (2007) 12 NSCC, 43; Giwa Amu v Guardian Newspapers (1999) 8 NWLR (616) 568; Ayeni v Adesina (2007) 7 NWLR (1033) 233, (07) ALL FWLR (370) 1451; African Newspapers v Ciroma (1996) 1 NWLR (423) 156 at 163; Sketch v Ajagbemokeferi (supra); Vanguard v Olafisoye (2011) LPELR, 42.
Since the Appellant’s issue is confined to whether or not the words complained of by the Respondents were fair comment and privileged, I do not need here to consider whether or not the High Court’s decision that the words were defamatory, was right. I would go straight to see whether or not the Appellant had adduced before the High Court evidence to make out the defence of fair comment. Before then however, I should state that the law on defamation or libel has recognized situations which would constitute a complete defence to an action for defamation or libel. For instance, there are occasions on which the law regards the freedom of speech as essential and provides a defence of absolute privilege which can never be defeated no matter how untrue the words or statement may be. Such occasions includes when the words or statement were said or made in parliament, i.e. the National and State Houses of Assembly, words or statements said or made in the course of judicial proceedings by judges, counsel, witnesses and other officials or persons which relate to the proceeding, communication between lawyers and their clients in relation to the cases handled by them, statements made by officers of the State to one another in the course of performing or discharging their official duty, etch. See Majekodumi v. Olopade (1963) NWLR 12; Adene v. Oyeyemi (1969) NWLR 37; Hamilton v. Al-Fayed (2001) AC, 15; Mamman v. Salaudeen (2006) ALL FWLR (298) 1169. There are other situations which constitute defences to the action such as justification, qualified privilege, fair comment, etc. see Gomez v. Punch Nig. Ltd. (1999) 5 NWLR (602) 303; Anyah v. African Newspapers of Nig. Ltd. (1992) 7 SCNJ 47; Atoyebi v Oduelu (1990) 9-10 SC, 150. The case of the Appellant here is that the contents of Exhibits 1 and 2 were “facts about the going on in their community and dispatched to people who had a corresponding interest to receive them. Also that they were fair comment on matters of public interest. Because the learned counsel had said in his brief that the contents of the Exhibits speak for themselves, I invite them to do so now.
Exhibit 1: A copy of the fetter addressed by the Peoples Forum Mkpanak Communities to the Chairman/Managing Mobil Director (sic) dated 12/3/94 as thus:-
The Peoples Forum-Mkpanak Communities
c/o P. O. Box 116,
Uyo – Akwa Ibom State.
March 12, 1994.
The Chairman & Managing Director,
NIEL P. Blackburn,
Mobil House,
Lekki Expressway, Victoria Island
P.M.B., 12054,
Lagos – Nigeria.
Resulting from Chief Ndarake’s utterance and actions and associations, the people of Mkpanak have little or no confidence in him and are very apprehensive of his role between Mobil and Ibeno people. Right as it stands Mobil may be given to understand that Ibeno people are very ignorant because we do not harass Mobil Producing Nigeria Unlimited for their apparent indifference to the welfare of the Ibeno Communities where they operate. We are people with due understanding, it is not because of far of anything for we know that whatever problems we may have from Mobil have likely arisen from the Chief’s mode of presentation of the people’s views and needs, if at all.
It is unfortunate that Mobil has allowed herself to be so manipulated into this type of mess because of the inherent desire by companies to exploit circumstances human and otherwise for their maximum profit. Mobil should as from this time on not regard Chief Edet W. Ndarake as the mouthpiece of Mkpanak people.
Again we stress that Chief Ndarake be not trusted with anything which pertains to the welfare of Mkpanak people for the people have lost complete confidence in him.
On its part, Exhibit 2; a Reminder from the above Forum addressed as in Exhibit 1, dated the 29/9/94, says:
We are not writing this to urge you to do anything which you are not convinced about, but we may suggest that it may perhaps be wiser to keep aside in the main time your pride of place and look into the points we have released in our two letters. From all indication it does appear that Chief Edet W. Ndarake is being paid by Mobil specially to disstabilize Ibeno Clain in order that Mobil may find some excuses for shirking her responsibilities to the people of Ibeno. Further, it appears Chief Ndarake has been directed by Mobil to meet the people in Mobil’s behalf lest Mobil will have any direct dealings with the people. We cannot blame you for that but we are to make Mobil understand that such manipulations, if at all. Do not help in any way for peaceful co-existence. This Chief is one of us and we have told you out stand about him. In spite of the above understanding on our part, we had to tolerate him at two meetings where he gave his explanations, which virtually, merely confirmed all the points raised in our last letter. After all the explanations given have not in any way lifted you out of your predicament, because he thought he was talking to his illiterate village council who would swallow anything he would tell them. Please note that our last letter was addressed to the Chairman and Managing Director of Mobil at Lagos and not to Chief Edet W. Ndarake. He was merely copied as one of the Chief actors in the dream between Mobil and Ibeno.
In our last letter, we had intimated you of the role your Public Relations Department at QIT, Ibeno has played in colluding and collaborating with Chief Edet W. Ndarake to make the people of Mkpanak communities and for that matter the whole of Ibeno Clan to suffer from lack of Mobil presence. It cannot be denied that we are your host. Our observations and remarks do not in any way suggest that we are to dictate to you whom to employ or whom not to employ. All we are saying is that the headship of that department should be properly scrutinized as it is becoming more obvious that that department is out to create an atmosphere of discord between Mobil and the people of Ibeno. Recently, it is reliably learnt that the Vice President of Mobil arrived Nigeria from the United States of America and was at your operational base, Qua Iboe Terminal, Ibeno between 22nd and 24th August, 1884. The Ibeno people were not aware of the August visit, neither the Clan Head nor the Ibeno Liaison Committee was intimated of the event. The people of Ibeno seriously frown at such a slight in the clan. But from some confirmed sources Chief Edet W. Ndarake was part of the whole show, which act is to affirm and confirm the department’s collusion and collaboration with Chief Edet W. Ndarake as earlier alleged. One now wonders whether it was a deliberate act by Mobil or the fault of the department for the Vice President of Mobil to have come into and gone out of Ibeno Land incognito? It is strongly felt that the people of Ibeno Clan deserve some explanation from Mobil for such a slight.
There was an earlier development about May/June 1994 when there was another oil spillage which this department is collaboration with Chief Edet W. Ndarake would have covered up to the detriment of the people but for the timely intervention of the Ibeno Liaison Committee who exposed the incident to the Government.”
What evidence did the Appellant lead to show that the contents of the above exhibits were fair comments on matters of public interest and that they were published to people who had corresponding interest to receive them? I have read the record of the entire evidence given by the Appellant as PW1 and apart from merely restating that the said exhibits were written by the Forum of which he was the Co-ordinator and Secretary to Mobil on the “going on” in the Mkpanak communities, there was no evidence of the fact that the contents are true and that the people to whom they were published had an interest to receive them. Although the Appellant had denied being the brain behind the exhibits, he, as the coordinator and secretary of the Forum, was the Alfa and Omega who authored them, since none of the other people who were said to have co-authored the Exhibits was called by him to own up the contents at the trial. I am unable to find any evidence by the Appellant on any of the legal defences listed earlier to the counter claim in respect of the Exhibits 1 and 2. In fact, the learned counsel had conceded that no evidence was led by the Appellant at the trial to defend the counter claim, at paragraph 5.2.05 on page 12 of the Appellant’s brief when he said thus:-
“5.2.05- The circumstance surrounding evidence of the Appellant rerating to his defence to counter claim has been canvassed in Issue No.1. It was not led in evidence.”
In the above circumstances, the High Court was right when it stated in its judgment, at page 303 of the record of appeal, that-
“The plaintiff has not shown that the statements made by him concerning the 1st defendant were true.”
Since the Appellant did not read evidence on the defence to the counter-claim, although learned counsel had argued that he did not intend to abandon the defence, failure by him to call such evidence in a tacit abandonment of the defence in law. The law is trite that pleadings on which no evidence was adduced by a party, are deemed abandoned. See Haruna v. Ojukwu (1991) 7 NWLR (165) 53; Ezennah v. Atta (2004) 2 SC (Pt.II) 75; Arabambi v. Advance Dev. Ind. Ltd. (2005) 12 SC (Pt.1) 60.
The submissions by learned for the Appellant on the issue are wanting in merit and not sustainable in law. The issue is therefore resolved against the Appellant.
Issue 3 is whether the decision of the Secretary, Eket Council was binding on the parties. The finding by the High Court on the issue is contained at pages 299-300 of the record of appeal and as follows:
“The plaintiff also complained of the defendants’ statement in respect of the communal land. DW1 on behalf of the defendants testified in this respect that the Chairman of Eket Local Government went into the matter and gave a decision that the plaintiff was wrong to encroach on the community land and asked the plaintiff to pay a traditional fine of one goat and some drinks to appease the village chiefs so that they would bless him. He tendered Exhibit 8 to show communication on the matter. DW2 also testified in that vein. Their evidence was not contradicted under cross-examination. I have gone through Exhibit 8 which consists not three letters dated 7th June, 1978, 16th June, 1978 and 27th June, 1978. The letter of 7th June, 1978 was written by the Secretary, Eket Local Government to the plaintiff and its opening sentence reads:-
“It has been brought to my notice that you willfully demolished Mkpanak village shed at Iwo Okpom and in its place erected a shed for your private use. This is an act likely to cause a breach of the peace which punishable under the criminal code.”
In the letter, the Secretary offered to act as mediator between the plaintiff and Mkpanak people. The endorsement on the letter of 16th June, 1978 shows that the mediation meeting was held on 26th June 1978 at Eket Local Government Council hall. The matter was decided in favour of Mkpanak people and as given in evidence in court by DW1 and DW2 in support of their pleading, the plaintiff was traditionally fined and asked to give to the people goat, drinks, etc. What happened was that the plaintiff and the people of Mkpanak submitted themselves to the Eket Council to arbitrate in their dispute over the land and a settlement was reached. The decision was binding on them and would be taken as conclusive as any decision of a legally constituted court of law. See the case of Uzoewulu v Ezeaka (2000) 14 NWLR (Pt. 688) p.629 Held 1; Environmental Dev. Const. v Umara Associates (2000) 4 NWLR (Pt. 652) p.293 Held 10.
After the decision was reached, the plaintiff wrote back on 27th June, 1978 and said among others:-
“….. All the above notwithstanding I still agree in the interest of peace and progress that the village may use the plot and in addition I hand over to the village the shed I have built as my own share towards that progress we so badly need …”
That is a clear indication that he agreed to and accepted the arbitration.”
The learned counsel for the Appellant had contended that the arbitration by the Secretary, Eket Council did not meet the conditions for a valid customary arbitration as laid out in the case of Okereke v. Nwankwo (supra). However as can easily be seen in the above finding by the High Court, it did not say that the arbitration was a customary arbitration. For the avoidance of doubt, the finding by the High Court was that:
“What happened was that the plaintiff and the people of Mkpanak submitted themselves to the Eket Council arbitrate in their dispute over the land and a settlement was reached.”
I have read the evidence of DW1 and PW2 referred to by the High Court on the issue which appears at pages 208 and 231 of the record of appeal respectively and there was no cross examination or any dispute by the Appellant that the dispute between him and the village over the land in question was taken to the Eket Local Government Council for settlement.
The Appellant and the representatives of the village freely attended the meetings at which the dispute was considered and eventually settled. Thus the parties voluntarily submitted themselves to the council for the settlement of the dispute between them. After the settlement, the parties again, freely and voluntarily accepted and agreed to abide by and be bound by the settlement of the dispute by the council. The Appellant in particular, did not dispute that he wrote the letter dated 27/6/78 after the settlement, which was quoted by the High Court above, to expressly and openly agree to abide by the settlement.
With this undisputed record of free and voluntary submission to and agreement by the Appellant to abide by the outcome of the settlement of the dispute between him and the village made by the Eket Council, can the argument by the learned counsel now be enough to effectively alter that position? It should be noted that the primary and crucial elements of an arbitration, whether statutory or customary, are that the parties to a dispute should freely agree to refer and submit their depute to a third party for settlement and voluntarily accept to abide and be bound by the outcome or decision by that party in the settlement. All other requirements that may be stipulated either by statute or customs are secondary and would not materially affect the validity of an arbitration that satisfied the primary and crucial elements which form its substance.
The Supreme Court in the recent case of Agala v. Okusin (2010) 10 NWLR (1202) 412 at 448, per Ogbuagu, JSC, had defined arbitration simply as follows:-
“An arbitration is a reference to the decision of one or more persons with or without an umpire of a particular matter indifference between the patties.”
See also NNPC v Lutin Investment Ltd. (2006) ALL FWLR (301) 1760 Black’s Law Dictionary, 6th Edition, Ihunwo v Ihunwo (2004) ALL FWLR (199) 1444 at 1453.
From the evidence before the High Court, the Appellant had freely submitted to the settlement of the dispute between him and the village, had agreed to abide and be bound by the outcome and had voluntarily, accepted the decision of the Eket Council on the dispute as final by his letter referred to earlier. In the circumstances, the decision by the council on the dispute was binding on the parties to the dispute, including the Appellant who cannot now resile from or even dispute it. Even as a customary arbitration, the decision was reached in accordance with the custom of the parties since the parties freely agreed to them and made known to them, thereby being published. It would purely be technical and chasing shadows rather than the substance to insist that the arbitration by the Eket Council must meet the form of a customary arbitration before the settlement or decision of the dispute would be valid and binding on the parties who freely and voluntarily submitted themselves and at the end of it, accepted the outcome as a final settlement of their dispute. Gone for long now in our courts, are the days when parties can pick their ways through the web of crass technicality in order to gain at the swing, what was lost at the roundabout. I find no merit in the submissions by the learned counsel for the Appellant on the issue which for that reason, is resolved against the Appellant.
The last issue was on the award of damages to the Appellant which was said to be ridiculously low and not commensurate to his standing and the extent and effect of the words he complained of. Learned counsel is right in his submissions on the law and so I agree with him, that the assessment of damages in an action for libel is not dependent of any rules, but depends on the peculiar facts and circumstances of a case. Also, that there are judicially recognized and established factors which a trial court considers in the assessment and award of damages in such actions and that proof of the damages on the part of the successful party, is unnecessary. The cases cited by him on the points are adequate authorities on the law, however I would like to restate that in assessing damages in cases of libel or defamation, a trial court should consider and take into account the following:-
a) the position and standing of the plaintiff in the Society
b) the nature and overall impact of the words complained of on the plaintiff; personally, morally and professionally etc.
c) the mode and extent of the publication of the words
d) the absence or refusal of a retraction or apology by the defendant,
e) the entire conduct and attitude of the defendant from the time of the publication to the time of judgment by the court
f) absence of any legal justification for the defamation
g) the depreciation of national currency from the time of the publication to the time of the judgment by the court,
These factors are not closed since the facts and circumstances of cases vary and they determine which may be relevant for consideration in the assessment of damages to be awarded by the court. See NEPA v Inameti (supra); Abamiye v Ogunsanya (2004) 4 NWLR (864) 486; NITEL v Tugblyele (2005) 3 NWLR (912) 334; Dina v New Nigerian Newspapers Ltd. (1986) 2 NWLR (22) 323; Williams v Daily Times (1990) 1 NWLR (124) 15; ACB v Apugo (2001) FWLR (42) 38 at 35. In the present appeal, the case of the Appellant is that the High Court failed to consider, the Appellant’s standing in the society, Akwa Ibom State and beyond on the ground that he was head of Biafra/Nigerian Currency Exchange during the Nigerian Civil War and a gifted mathematician. Also that the Respondents were actuated by malice and selfishness in order to improve their financial and economic fortunes.
In its judgment, the High Court in awarding damages to the Appellant in particular, had merely said at page 304 of the record of appeal, that:-
“Award of general damages in a case of libel is discretionary depending on the peculiar facts and circumstances of each case. See the case of Asheik v. Media Trust Nig. Ltd. (supra) held 6. In the final result it is ordered that judgment be and is hereby entered against the 2nd – 10th defendants who signed Exhibit 3 as follows:-
1) The 2nd – 10th defendants shall jointly and severally pay to the plaintiff a sum of N3,000,000.00 as general damages for publishing libelous material against the plaintiff in respect of the relief materials.”
Clearly, the High Court did not indicate in the above decision, how and what factors, facts or circumstances of the Appellants’ case or the Respondents’ defence it considered in assessing the damages due and the amount eventually awarded to the Appellant as general damages. Undoubtedly, the law is that general damages are a class of damages presumed by law to flow naturally from an alleged and proved wrong to a party and usually awarded to compensate him for the injury or loss he has suffered or sustained from the wrong done him.
In cases of defamation or libel, damages are usually awarded to vindicate or as vindication of the good reputation, character, integrity, standing, etc. of the successful plaintiff in the society. See Bashorun v. Ogunleye (2000) 1 NWLR (640) 221.
The High Court is right that the assessment and award of general damages in a given case in its primary duty and to a large extent, discretionary. However, the law is now elementary that the exercise of every judicial discretion by a court of law, must be both judicial and judicious at all times. Whether or not the exercise of a judicial discretion was in line with the established principles of law, can only be determined on the record of the exercise by the trial court as contained in its record of proceedings.Since there is no record of how the High Court arrived at the sum of damages awarded to the Appellant in this appeal, can it be said that that court exercised the discretion both judicially and judiciously? In the case of Eronini v Iheuko (1989) 2 NWLR (101) 46 at 60 and 61, the Supreme Court had defined the phrases “Judicial” and “Judicious ” in relation to the exercise of a court’s judicial discretion. This is what the apex court said:-
“Acting judicially imports a consideration of the interest of both sides and weighing them in order to arrive at a just or fair decision.”
Page 60.
“Judicious means:-
a) proceeding from or showing sound judgment;
b) having or exercising sound judgment;
c) marked by discretion, wisdom and good sense.” page 61.
These requirements cannot be said to have been met in the exercise of a judicial discretion if there is no record of reasons which would form the basis of how a trial court arrives at a given decision for it to be called a sound judgment marked by discretion, good sense and wisdom. There is the need and duty on courts not only to state that they are exercising a discretion but to clearly record how and why the discretion was exercised in a particular way or manner for it to be capable of being said to have been exercised both judicially and judiciously.
I am aware of the law ‘that this court does not make a practice of routinely interfering with the award of damages made by a trial court. Generally, the court can only validly interfere with the award of damages by a lower court when it was demonstrated that that some wrong principles of law or that the amount awarded was extremely high or so very ridiculously low or small as to make it, in this court’s judgment, an entirely erroneous estimate of the damages to which the successful party was entitled. See Idahosa v Oronsaye (1959) SCNLR, 407; Zik Press Ltd. v Ikoku 13 WACA; 188; Bala v Bankole (1986) 3 NWLR (27) 141; Ijebu-Ode Local v Balogun (1991) 1 NWLR (66) 136; Elf Nig. Ltd. v Sallo (1994) 6 NWLR (350) 256 at 274.
There is no doubt that the Appellant as a gifted mathematician, a head of currency exchange during the Nigerian Civil War, a retired educationist who had trained countless students and a member of some boards of some institutions, is a man of high standing in his society. I have also noted that the writ of summons in the case was taken out by him since the 21/3/1995 that the judgment of the High Court was delivered, as stated at the beginning, on the 8/4/2011, a period of about sixteen (16) years during which the Nigerian currency had depreciated in value, that the words he complained of were engendered by the Exhibits 1 and 2 which the Appellant authored, were published to the same class of people to who the said Exhibits were circulated by him and the conduct of the 2nd – 10th Respondents as disclosed in the evidence before the High Court, throughout the relevant time. From the above factors, I am of the view that the award of the sum of N3,000.000.00 (Three Million Naira) as general damages to the Appellant is not ridiculously low or small as to make it an entirely erroneous estimate of the damages to which he is entitled for the libel committed by the 2nd – 10th Respondents against him.
In the circumstances, I find no justification for interfering with the award by the High Court.
Under the issue, the learned counsel had urged us to set aside the award of damages made to the 1st Respondent but did not demonstrate why the court should interfere with the award except to repeat some of the words found to be libelous of the 1st Respondent by the High Court. No reason whatsoever was given by the learned counsel in the submissions on the issue on which the court can properly set aside the award of damages made to the 1st Respondent. The court cannot in the circumstance, interfere with that award. In the result, for the reasons which are set out above the issue is resolved against the Appellant.
In conclusion, since all the issues submitted by the learned counsel for the Appellant have been found not tenable in law and resolved against the Appellant, this appeal is bereft of merit. It is dismissed accordingly and in consequence, the decision by the High Court is hereby affirmed.
Since the Respondents did not participate in the prosecution of the appeal, I make no order on costs.
JOSEPH TINE TUR, J.C.A: I have read the judgment delivered by my Lord, Mohammed Lawal Garba, JCA, and I concur with the conclusions arrived at. I shall only comment on issue one in the appellant’s brief, namely:
“Whether the Court below was right in denying the appellant the opportunity of leading evidence on his defence to counter-claim including tendering pleaded documents as the counter-claimants failed to swap position and lead evidence on their counter-claim thus occasioning miscarriage of justice on the part of the appellant.”
This question has arisen because Counsel that appeared in the lower Court and in this Court on behalf of the appellant is not conversant with the provisions of the High Court (Civil Procedure) Rules, 2009 applicable to Akwa Ibom State. Order 1 rule 1(1) of the rules (supra) provides that, “These Rules shall apply to all proceedings including all part heard cases and matters.” This suit was filed before the High Court of Justice, Uyo Judicial Division, Akwa Ibom State on 21st day of March, 1995. The appellant claimed and the respondents filed a defence and also counter-claimed. The appellant filed a defence to the counter-claim. After pleadings closed actual hearing commenced on 31st day of May, 2000. The appellant testified as Pw1 and put in documentary exhibits. Pw1 was cross-examined and re-examined. Fidelis Okon Etim started testifying on 10th day of January, 2002 as Pw2. on 14th day of February, 2002 the following dialogue is recorded after Pw2 was cross-examined and re-examined by learned Counsel to the respondent:
“RE-EXAMINATION:
Mobil came to Ibeno in 1970.
Dr. Essien: That’s all for the witness and that is the case for the plaintiff.
Chief Eneyo: I apply for a date to open our defence.
Court: With consent of both Counsels the matter is adjourned to 10/4/2002 for defence.
Sgd. Andrew E. Okon, Judge, 14/2/2002.”
See page 199 lines 1-9 of the printed record.
That is to say that the learned Counsel to the appellant voluntarily closed the appellant’s case on 14th February, 2002. The defence opened on 10th day of April, 2002 with Chief (Hon.) Mkpouto Bassey Essien testifying as Dw1 followed by Abang Okon Abang (Dw2) on 20th day of June, 2005. The witness continued his evidence on 21st December, 2005. The respondents also tendered documentary exhibits. Before Dw2 would complete his testimony in chief the following dialogue again ensured in Court:
“Chief Eneyo: I apply for an adjournment. When we come back we shall go into our counter-claim.
Court: The case is adjourned with consent of both Counsels to 15th February, 2006 for continuation of defence.
Sgd. Andrew E. Okon, Judge, 21/12/2005.”
See page 234 lines 12-19 of the printed record.
The issue of the learned Counsel going into “our counter-claim” arose when Dw2 was testifying. By 5th May, 2010 when the defence closed the Akwa Ibom State High Court (Civil Procedure) Rules, 2009 had come into effect since 1st day of December, 2009. Order 30 rule 11(1) and (2) of the Rules (supra) provides that:
“11(1) A party shall close his case when he has concluded his evidence. Either the claimant or defendant may make oral application to have the case closed.
(2) Notwithstanding the provisions of sub-rule 1 above, the Judge may suo motu where he considers that either party fails to conclude his case within a reasonable time, close the case for the party.”
When Dr. Essien, Esq. of Counsel to the appellant informed the Court on 14th February, 2002 that, “That’s all for the witness and that is the case for the plaintiff,” the legal implication is that Counsel had adduced what he considered sufficient evidence to prove the appellant’s claim and disprove the counterclaim. This is because a party shall close his case when he has concluded his evidence.
Upon the parties closing their respective cases, Order 30 rules 14-16 of the Rules is the next port of call:
“14. Where the other party calls evidence he shall within 21 days after the close of evidence file address.
15. Upon being served with the other party’s written address the party beginning shall within 21 days file his own written address,
16. The party who file the first address shall have a right of reply on points of law only. The reply shall be filed within 7 days after service of the other party’s address. ”
The purpose of a claim and counter-claim being tried together is explained in Order 15 rule 1(2) of the Rules (supra):
“(2) A defendant shall file hrs statement of defence, or counter-claim, if any, not later than 42 days after service on him of the claimant’s originating process and accompanying documents. A counter-claim shall have the same effect as a cross action, so as to enable the Court pronounce a final judgment in the same proceedings. A self-off must be specifically pleaded.”
The fact that a counter-claim is a separate cause of action or is a cross action does not mean that the plaintiff will put in evidence in support of his claim, wait for the defendant to do likewise in support of the defence; thereafter the parties will “swoop position” as argued by learned Counsel to the appellant in the Court below and in this Court. That procedure is unknown to the High Court (Civil Procedure) Rules, 2009 applicable to the Court below; it is indeed a strange procedure to me. In the process of the plaintiff leading evidence to prove the claim, evidence shall also be led to disprove the counter-claim. Likewise, as the counter-claimant adduces evidence to disprove the main claim, at the same time, he shall put in evidence to establish the counter-claim. The whole purpose is to ensure speedy trial and minimize cost of litigation in order to enable the Court to pronounce a final judgment in the same proceedings. Let me refer to the learned authors of the Supreme Court Practice, 1997, in England, with specific reference to Order 18 rule 18 page 327, paragraph 18/18 to 18/18/11 as follows:
“18. Without prejudice to the general application of this Order to a counterclaim and a defence to counterclaim, or to any provision thereof which applies to either of those pleadings specifically:-
(a) Rules 12(1A), (1B) and 1(C) and 15(1) shall apply to a counterclaim as if the counterclaim were a statement of claim and the defendant making it a plaintiff;
(b) Rules 8(2), 16 and 17 shall, with the necessary modifications apply to a defence to counterclaim as they apply to a defence.
Effect of rule – The effect of this rule is, from the point of view of pleading, to assimilate a counterclaim with a statement of claim, and the defence to counterclaim with a defence. A counterclaim is therefore governed by the same rules of pleading as a statement of claim, and the defence to counterclaim by the same rules as a defence.
All the facts relied on by way of counterclaim must be stated in numbered paragraphs under the heading “Counterclaim, ” so as to distinguish them from the facts alleged by way of defence. If any of the facts on which the counterclaim is founded have been already stated in the defence, they need not be restated in the counterclaim, but may be incorporated by reference. A counterclaim may comprise several distinct causes of action. But in that case the facts on which each cause of action is founded must be stated, as far as may be, separately and distinctly (r6(2)), and the relief or remedy prayed stated specifically, either simply or in the alternative (r.15(1)). And the several causes of action must be such as could properly be joined in one independent action (Compton vs. Preston (1822) 21 Ch.D.138). O.15 applies to joinder of claims in a counterclaim (Padwick vs. Scott (1876) 2 Ch.D. 736). But to a claim for the recovery of land, the defendant may counterclaim for relief against forfeiture (Warden, etc, of Cholmeley’s School vs. Sewell, (1893) 2 Q.B. 254; and to a claim for damages for infringing a patent, the defendant may counterclaim for the revocation of the plaintiff’s patent (Patents Act, 1977, s.72).
Similarly, with the defence to counterclaim, every ground of defence relied on must be specifically pleaded as required by r.8(1), and so must the defence of tender under r.16, or the defence of set-off under r.17 and every allegation of fact in the counterclaim which the plaintiff does not intend to admit must be specifically traversed by him in his defence to counterclaim, otherwise he will be deemed to admit the same (r.13).
For the purpose of the Limitation Act, 1980, a counterclaim is a new claim and is deemed to be a separate action and to have been commenced on the same date as the original action (s.35).”
Having voluntarily closed the appellant’s case on 14th day of February, 2002 it does not lie within the mouth of the appellant to argue that he had been denied the right to fair hearing. No where has the appellant shown how the learned trial Judge breached the twin pillars upon which justice is founded, namely, audi alteram partem or nemo judex in casa sua as enshrined under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999. It is part of the honour of a learned Counsel to admit that he did not know the law, substantive or procedural, hence, in the course of performing his judicial assignment, he committed blunders, errors or mistakes, rather than laying blame at the doorstep of a learned trial or appellate Judge. In Agu vs. Odofin (1992) 3 SCNJ 161 at 179 Olatawura, JSC held at page 129 as follows:
“…A mistake of Counsel readily admitted by Counsel is part of the honour of Counsel which is relied upon by Court not to visit the mistake of Counsel on litigants.”
I endorse the views of the learned trial judge at page 276 lines 1-10 of the printed record when he held as follows.
“Court: If the defendants had laid evidence on their counter-claim it will show in the Court’s records but if they did not it would mean that they abandoned same. Once there is evidence on counterclaim, it would not matter that portions were not physically changed. Everything can be inferred from questions that were asked and answered in cross-examination. Both sides having closed their cases, it is ordered that the defendants’ Counsel shall within 30 days hereof file his written address for service on the plaintiff’s Counsel who on being served with same shall else within 30 days hereof file his written reply address for service on the defendants, Counsel who shall within 7 days file his written rejoinder on points of law if any. The case is adjourned to 12/7/2010 for adoption of written addresses. ”
This suit was filed in the Court below on 21st day of March, 1995. The High Court (Civil Procedure) Rules, 2009 came into effect on 1st December, 2009. The Rules were designed to apply to all part-heard cases and matters. The Rules are meant to ensure speedy and efficient trial hence the introduction of the “front loading” system whereby the plaintiff files his writ of summon accompanied with statement of claim, list of witnesses to be called at the trial, written statements on oath and copies of every document to be relied on at the trial. See Order 3 rule 2(1)(a)-(d) of the Rules (supra). Upon service the defendant does likewise. See Order 15 rule 1(2) of the Rules.
A simple procedure is prescribed as to how trial is to be conducted under Order 32 rule 1-4 and 2(11-(2) of the Rules to:
“1(1) Subject to these rules and to any enactment relating to evidence any fact required to be proved at the trial of any action shall be proved by written deposition and oral examination of witnesses in open Court.
(2) All agreed documents or other exhibits shall be tendered from the bar or by the party where he is not represented by a Legal Practitioner.
(3) The oral examination of a witness during his evidence-in-chief shall be limited to confirming his written deposition and tendered in evidence all disputed documents or other exhibits referred to in the deposition.
(4) Real evidence shall be tendered during the trial.
2(1) A Judge may, at or before the trial of an action, order or direct that evidence of any particular fact be given at the trial in such manner as may be specified by the order or direction.
(2) The power conferred by sub-rule 1 of this Rule extends in particular to ordering or directing that evidence of any particular fact be given at the trial:
(a) By statement on oath of information or belief;
(b) By the production of documents or entries in books;
(c) By copies of documents or entries in books; or
(d) In the case of a fact which is or was a matter of common knowledge either generally or in a particular district, by the production of a specified newspaper which contains a statement of that fact.”
Unwarranted application for adjournments or lengthy cross-examination of witnesses can be avoided by the adoption of written depositions and admission of documents from the Bar depending on the circumstance of each case. If Counsel adheres to the provisions of the rules of practice and procedure, speedy trial shall be guaranteed. I cannot end without referring to what Lord Sankey L.C. said in Mechanical and general Inventions Co. Ltd.; and Lehwess vs. Austin and Austin Motor Co. Ltd. (1935) All E.R. Rep. 22 at 27 paragraphs F-I and page 28 paragraph “A” to wit:
“I cannot part from this without referring to the remarks made in the Court of Appeal upon the method in which it was conducted in the court of first instance. The learned Master of the Roll/s said;
“There remains one feature of this case upon which, in association with my colleagues, I desire to make serious comments that is the cross-examination to which the leading actors on either s/de, Mr. Lehwess and Sir. Herbert Austin, were subjected. Measured by the shorthand note, it appears that Mr. Lehwess’s examination occupied eight pages; his cross examination occupies 265. The examination of Sir Herbert Austin occupied thirty-nine pages and his cross-examination 148 pages. There is a tedious iteration in some of the questions asked, and prolonged emphasis is laid on some matters, trivial in relation to the main issues. Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to the hands of Counsel in the confidence that it will be used with discretion, and with due regard to the assistance to be rendered by it to the Court, not forgetting at the same time the burden that is imposed upon the witness. We desire to say that in our opinion the cross-examination in the present case did not conform to the above conditions, and at times it failed to display that measure of courtesy to the witness which is by no means inconsistent with a skillful, yet powerful, cross-examination.”
With that censure I agree, except that I cannot think it can be justly applied to the Counsel who appeared on behalf of the appellants or to any of the Counsel who appeared at the Bar of your Lordships’ House. It is right to make due allowance for the irritation caused by the strain and stress of a long and complicated case, but a protracted and irrelevant cross-examination not only adds to the cost of litigation, but is a waste of public time. Such a cross-examination becomes in defensible when it is conducted, as it was in this case, without restraint and without the courtesy and consideration which a witness is entitled to expect in a Court of law. It is not sufficient for the due administration of justice to have a learned, patient and impartial judge. Equally with him, the solicitors who prepare the case and the counsel who present it to the court are taking part in the great task of doing justice between man and man.”
Had counsel given heed to the rules of practice and procedure from 1st December, 2009 this protracted litigation would have been avoided.
There is no substance in issue one. I also uphold the judgment of the learned trial Judge and dismiss this appeal. I abide by the orders of my Lord.
ONYEKACHI A. OTISI, J.C.A: I have had the opportunity of reading in draft the Judgment of my learned Brother, Mohammed Lawal Garba JCA in this appeal. I am in complete agreement with his reasoning and conclusion that this appeal is without merit. I will only add a few comments in support.
A counter-claim is a cross-action and not merely a defence to the Plaintiff’s claim. A defendant in any action who alleges that he has any claim or is entitled to any relief against a plaintiff in an action may instead of bringing a separate action make a counter-claim in respect of that matter; and where he does so he must odd the counter-claim to his defence.
Although such counter-claim shall have the same effect as a Statement of Claim in a cross-action and as if the defendant making the counter-claim were the plaintiff and the plaintiff against whom is made, the defendant, the counter-claimant, however remains the defendant, while the original plaintiff against whom the counter-claim is made, remains the plaintiff . And they are respectively ref erred to as such in the pleadings of the parties. See: Usman vs. Garke (2003) 7 S.C. 33.
The plaintiff ought to file a reply in defence to the counter-claim. Where the plaintiff fails to take such a step, the Court is entitled, and in fact obliged to assume that the plaintiff has no defence to the counter-claim and may enter judgment for the defendant accordingly. See: Nigerian Housing Development Society Ltd. v. Mumuni (1977) 2 S.C. 57; Ogbonna v. A.G. Imo State (1992) 1 N.W.L.R. (Pt. 220) 647. Once the parties have filed their pleadings on the claim and counter-claim, it is for the parties to prove their respective cases. See: Kyari vs. Alkali (2001) 5 SC 192; Jeric (Nig.) Ltd vs Union Bank of Nigeria Plc. (2000) 15 NWLR (PT 691) 447.
The counter-claim is an independent action and not part of the original action, though for convenience the two are tried together. Thus, there is no separate hearing for a counter-claim. Usual practice is for the plaintiff to give evidence on his pleadings, which would include his reply to the counter-claim. Where a plaintiff fails to do so, he would be deemed to have abandoned his defence to the counterclaim. It is trite that a plaintiff who has been given every opportunity to defend a counterclaim cannot complain of lack of fair hearing. See: Newswatch Communications Ltd V. Atta (2006) 4 S.C. (PT. II) 114; Okotcha v. Herwa Limited (2000) 15 NWLR (Pt. 690) 249 of 257 – 258; A.S.R. Co. Ltd v. O.O. Biosah & Co. Ltd. (1997) 11 NWLR (Pt.527) 145.
All the issues raised in this appeal for determination have been sufficiently resolved in the lead Judgment. As earlier specified, I am in complete agreement; and I also dismiss this appeal.
Appearances
Ubong Edemekong, Esq.For Appellant
AND
E.E. Eneyo, Esq.For Respondent
