KEDCO & ANOR v. SINTILMAWA
(2022)LCN/16991(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Friday, March 04, 2022
CA/K/529/2018
Before Our Lordships:
Ita George Mbaba Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Between
1.KANO ELECTRICITY DISTRIBUTION COMPANY PLC (KEDCO) 2. AMINU IBRAHIM APPELANT(S)
And
HARUNA USMAN SINTILMAWA RESPONDENT(S)
RATIO
WHETHER OR NOT A TRIAL COURT IS DUTY BOUND TO EVALUATE EVIDENCE BEFORE IT
It is trite and in fact good law that a trial Court is duty bound, after receiving evidence from parties and their witnesses, to evaluate impartially such evidence before arriving at its decision, a duty described by Onnoghen JSC (later CJN) in Fagbenro v. Arobadi (2006)7 NWLR (PT. 978) 172 AT 193 as “sacred”. In performing that sacred duty the Court is bound to set out its appraisal and thoughts showing how and why it came to its findings of fact and final determination on the issues. See UBA v. Mustapha (2004) 6 NWLR (PT 652) 468 AT 469, 472 para D. If it fails in that duty an appellate Court will intervene either to re-evaluate the evidence or send the case back for retrial, depending on whether or not the unevaluated evidence bordered on credibility of witnesses. See Anyanwu v. Uzowuaka (2009) ALL FWLR (Pt 499) 411, Mainnage v. Gwama (2004) 12 MJSC 34, Woluchem & Ors v. Gudi & Ors (1981) 12 NSCC 214 AT 220-211, Atolagbe v. Shorun (1985) 1 NWLR (PT 2) 360, C.P.C. v. I.N.E.C. (2012) ALL FWLR (PT 617) 605 AT 633 and Anyanwu v. Uzowuaka (2009) ALL FWLR (Pt 499) 411 AT 426-427. Section 15 of the Court of Appeal Act 2004 also specifically states that this Court in hearing appeals “shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a Court of first instance and may re-hear the case in whole or in part…”
In Wassah v. Kara (2015) ALL FWLR (PT 769) 1034 AT 1954, it was said (Rhodes-Vivour, J.S.C.) that:
“There are few cases where a retrial order should not be made. If after examining the evidence this Court finds that it is in a position to do justice, this Court should proceed to correct the decision, and, in such circumstances, it would be wrong to order a retrial.” PER UGO, J.C.A.
WHETHER OR NOT SLANDER AND LIBEL CAN LIE IN ACTIONS AND GESTURES
I should pause to point out here that, the fact that slander and even libel can also lie in actions and gestures, and not only by spoken words, is not open to doubt. In Hirat Aderinsola Balogun v. National Bank Nigeria Limited (1978) LPELR-723 (SC) Idigbe, J.S.C., made that point very clear when he said (at pages 22-23) that:
“After all, it is now well known that slander exist as much in spoken words as in gestures or actions. Sometimes a mere act may convey a defamatory imputation if it would be so understood by reason of a convention meaning or by reason of inferences to be drawn from it, whether by the ordinary man, or by some person with special knowledge to whom it was published (see Gatley on Libel and Slander 7th Ed. p.83 Art. 85). Thus it was held in Jeffries v. Duncombe (1809) 2 Camp. 3, that it was defamatory to place a burning lantern in front of a man’s house during the hours of day (i.e. daytime) thereby intending to make out the house as a bawdy-house, that is, a brothel; and in Cox v. Cox (1814) 3 M & Sat 114 Lord Ellenborough C.J. was of the opinion obiter, that the act of holding up an empty purse before a crowd and gesticulating in the plaintiff’s direction could be considered defamatory, although there were no slanderous words accompanying the action.” PER UGO, J.C.A.
WHETHER OR NOT THE COURT CAN ACCEPT EVIDENCE THAT IS NOT CHALLANGED
The law is settled that in such circumstances the Court has a duty to accept and act on the evidence that is not challenged by the person who had the opportunity to challenge it. SeeOgunyade v. Oshunkeye & Anor (2007) LPELR-2355 (SC); Odulaja v. Haddad (1978) 2 S.C. 79, Oforlete v. State (2000) FWLR (PT 12) 2081, (2000) 12 NWLR (PT 681) 451 (SC). PER UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from the judgment of the High Court of Justice of Jigawa State of 05/07/2018. Respondent, a former casual staff of 1st appellant, took out writ of summons in the High Court of Jigawa State against the two appellants, the latter being his former employer’s Business Manager, for double-barreled claims of slander and breach of his fundamental right to personal liberty.
He averred in his statement of claim that he was employed by 1st appellant as its casual support staff, precisely Customer Relations Officer, for three Quarters in Ringim Town in Ringim Local Government Area of Jigawa State on 16/02/2015, but was disengaged by 1st appellant summarily, seven months later on 8/09/2015, on grounds that he failed to meet targets set for him by them. In a bid to regain his employment, he sought the help of two politicians, Hon. Mohammed Gusau Boyi member of House of Representatives representing Ringim/Taura Federal Constituency and the Senator Abdullahi Ojo Gumel representing Jigawa North-West Senatorial District in the Senate, both of whom he described as his ‘political masters/mentors, to plead with appellants to re-engage him. When the two politicians called 2nd appellant separately on telephone to speak with him on the matter, he said and it was confirmed by P.W.1 in his witness statement on oath which he adopted in Court, that 2nd appellant replied them in Hausa Language in words which, translated to English Language, mean:
“Your boy is a thief, he stole KEDCO’s money ₦8,800,000.00 and he is a drunkard, womanizer and his mother is a staunch supporter of PDP.”
Both politicians he said related to him what second appellant told them about him, went on to express their disappointment with him and then terminated their intervention in the matter and shunned him.
Some days later, precisely on 25/10/2015, he said two policemen accompanied by two staff of 1st appellant came to his village of Dandali in 1st appellant’s vehicle and arrested him in the Village Centre on an allegation of criminal breach of trust and cheating 1st appellant to the tune of ₦8,800,000.00 for electricity bills collected by him during his employment with it. He denied the allegation, but the policemen told him that it was 2nd appellant who laid the complaint against him on behalf of 1st appellant and 2nd appellant actually insisted that the complaint is not frivolous, that he would bring documents to substantiate it. Because of 2nd appellant’s insistence on the truth of their allegations, he said he was detained overnight at Duste Police Division. The following day, he was informed by the Police that, because of the huge amount of money involved in the complaint, he would be transferred to State Criminal Investigation Department (C.I.D.), and was actually so transferred on 26/10/2015 and detained in State C.I.D., Dutse, for further four (4) days.
At State C.I.D., he said, 2nd appellant brought electricity bills, duplicate receipts and record books issued by 1st appellant to its customers covering his area of responsibility when he was in their employment. He said he told the police that 73 of the about 300 electricity bills submitted by 2nd appellant were non-existing because either the addresses in them had no electricity connection or the addresses were outright inexistent, but his assertion was disputed by appellants who instead provided the police with 1st appellant’s vehicle, put him in the vehicle in handcuffs and, accompanied by four of appellant’s own staff and three policemen, took him to Katutu, Galadad and Walawa Quarters of Ringim town that were his area of responsibility and conducted a house to house investigation of the complaint. That inquiry he said confirmed his assertion that 73 of the about 300 electricity bills submitted to the police by appellants were indeed non-existing and appellants’ complaint false, as what they were alleging as debt was what 1st appellant owed its customers.
During the said house to house investigation, he claimed, people in the community used to follow them, with some of them even chanting that he was a thief and had stolen 1st appellant’s money, while others video-recorded him in handcuffs and shared the images on social media sites with the caption that he had stolen money.
He claimed too that during his four-day detention at State C.I.D., his mother (P.W.3) made several attempts to bail him and even pleaded with the police to release him on bail but the police always told her that the money involved in the complaint of appellants against him was huge so appellants would not take it lightly with them if they released him on bail.
He was eventually released on bail by the police on 30/11/2015 after signing bail bond of ₦10,000.00 and on condition that he report back on Monday 2/11/2015.
When he reported back on Monday 2/11/2015 as agreed, he was informed by the police that appellants had withdrawn their complaint. He demanded evidence and the Police gave him a Withdrawal Letter, Exhibit DW1, signed by 1st appellant’s Security Officer, one Capt. H.A Hassan who later testified for them as their first defence witness, D.W.1, in the trial.
He complained that since the complaint against him by appellants became public knowledge through the house to house search it conducted with him in handcuffs, he had found it difficult to secure a job to take care of his family of a wife and two children; that people in his community and Ringim town where the investigation was conducted now see him as a thief who stole 1st appellant’s ₦8,800,000.00 and are no longer willing to interact or transact any business with him; that even his two political mentors Senator Abdullahi Ojo Gumel and Hon. Muhammad Gusau Boyi no longer hold him in the same esteem that they used to; that they are no longer willing to entrust him with anything.
As a politician, he said he was even planning to contest the Councillorship of his Ward in the future but appellants’ allegation has destroyed his ambition as he no longer commands respect in the Ward.
He said he is married with a wife and two children and taking care of his aged mother. He averred, too, and proved it with documentary evidence, that he had formal education and even obtained a National Certificate of Education, NCE.
He claimed to have also suffered psychological and mental distress and so took out writ of summons in the High Court of Jigawa State and claimed from against appellants (1) a declaration that appellants by their act and utterances as aforementioned defamed his character, (2) an order directing 2nd appellant to offer a public apology to him via two reputable radio stations covering the jurisdiction of the High Court of Jigawa State in jingles of twice a day – morning and evening – for seven days; (3) General damages of ₦50,000,000.00 (Fifty Million Naira) for defamation; (4) a declaration that his arrest and detention for five days by the Police on the false and frivolous allegation of the appellants was in breach of his fundamental right to personal liberty; (5) General damages of ₦50,000,000.00 (Fifty Million Naira) against appellants jointly for breach of his fundamental right to personal liberty and, finally, cost of the action.
Appellants in their defence admitted that he was their casual worker but added that his sack was not just for his failure to meet working target but also for non-remittance of money collected by him on behalf of 1st appellant through distribution of bills to customers. They admitted, too, that following his sack, 2nd appellant was called by the two Lawmakers mentioned by respondent to intercede on his behalf but that 2nd appellant simply replied the two politicians that he was not the one that terminated respondent’s employment; that they should rather plead directly to the Managing Director of 1st appellant.
They also maintained in their joint statement of defence that, upon going through the bills assigned to him for various customers, they discovered that the sum of ₦8,800,000.00 was outstanding and unremitted by him, Respondent, hence 1st appellant petitioned the police and both parties, appellant and them, were invited by the Dutse Police Division and a preliminary investigation conducted. They confirmed his assertion that the case was transferred to State C.I.D, at Police Headquarters in Dutse, but added that at State C.I.D., he cried and pleaded profusely with them to withdraw the complaint; that his mother was seriously ill and suffering hypertension and if the case continued she might likely die because she was so disturbed about the trouble he had put himself. Because of his pleas for forgiveness and remorse, which they said further attracted the intervention on one Senator Ubale Shittu who ran into him at State C.I.D and equally pleaded with them to forgive him, hence they finally withdrew their complainant. They ended up by labeling his action frivolous, vexatious and gold-digging and urged that it be dismissed.
Respondent filed a reply and there denied ever crying or pleading with appellants for forgiveness and/or withdrawal of their complaint. While he admitted that Senator Ubale Shittu saw him at State C.I.D and volunteered to intervene in the matter if appellants would withdraw the complaint, he said the Senator’s offer was rejected by appellants. He denied, too, that the Senator saw him cry or beg appellants for forgiveness.
The case eventually went to trial and witnesses were called by both sides. Respondent as claimant testified a P.W.4 after calling his ‘master’ Hon. Muhammad Gusau Boyi as his first witness (P.W.1), one Maduwa Garba (also a former casual of 1st appellant who like him was also sacked by appellants) as P.W.2, and finally his mother as P.W.3.
In their defence, 2nd appellant testified as D.W.2 after 1st appellant’s Chief Security Officer, Retired Captain Hussain, had testified as D.W1. It is necessary to mention even now that appellants in their defence at the trial did not produce their electricity bills, receipt booklets and duplicates that they claimed justified their lodging with the police their complaint of stealing of their ₦8,800,000.00 by respondent.
At the close of evidence and addresses by counsel to parties, the learned trial Judge, Isah Gumel J., in his judgment of 5/7/2018 which ran into 65-pages the greater part of which he devoted to summarizing the evidence and arguments of counsel, held Respondent’s claims proved and entered judgment for him by making the two declarations he sought; directed that appellants make public apology to him via twice-daily radio jingles for five days and also awarded him damages of Five Million Naira (₦5,000,000.00) for defamation and another five million (₦5,000,000.00) for their breach of his right to personal liberty.
Vexed by that decision, appellants lodged this appeal against it. They filed two notices of appeal but adopted their second Notice of Appeal of 14 grounds of appeal and formulated from them the following four issues for determination, which issues were also adopted by Respondent:
1. Whether the trial Court evaluated or properly evaluated the evidence led by the parties before finding them liable for defamation of respondent and breach of his fundamental rights to liberty and whether on the state of the pleadings and evidence before that Court its judgment can be supported and respondent’s case proved by preponderance of evidence.
2. Whether on the facts and circumstances of this case 1st appellant can be held vicariously liable for the defamatory words allegedly uttered by 2nd appellant to make it jointly and severally liable with 2nd appellant in respect of them.
3. Whether on the facts and circumstances of the case, the trial judge’s award to respondent of ₦5,000,000.00 general damages for defamation of his character and ₦5,000,000.00 general damages for breach of his fundamental right to personal liberty as well as the order directing the 2nd appellant to offer public apology to respondent via two reputable Radio stations in a jingle twice a day for four days is not excessive, justifiable and reasonable.
4. Whether the claims of the Respondent relating to the alleged breach of his fundamental rights to personal liberty without resort to the fundamental rights (Enforcement Procedure) Rules 2009 are competent to confer jurisdiction on the trial Court to entertain same.
On issue 1, they (appellants) submitted that what the trial judge simply did in his judgment was to summarize the evidence of the parties and even that in a lopsided manner in favour of respondent and then find them liable without evaluating the evidence that was adduced before him. Summary of evidence, they argued and cited Mkpinang v. Ndem (2013) 4 NWLR (PT. 1344) 302 AT 315, (2012) LPELR-15536 (SC) AT 22-24, is not the same thing as evaluation of evidence; that it is the duty of a trial Court to evaluate and ascribe probate value to evidence adduced by parties before it and put same on the imaginary scales to decide which evidence preponderates before reaching its decision. Had the trial judge properly evaluated the evidence adduced and weighed it on the scales of justice, they submitted, he would have seen that respondent did not prove his claims. His conduct of the case, they thus submitted, occasioned a miscarriage of justice. Where a trial Court fails to evaluate evidence or do that properly, they asserted, an appellate Court would intervene and evaluate the same evidence in an appropriate case and reach a correct decision, especially where the evidence is documentary and does not require serious consideration of credibility or demeanour of witnesses. This Court, they thus urged, should so intervene, as the evidence adduced by parties before the trial Court, according to them, comprised essentially of written depositions of witnesses and documentary exhibits. If that exercise is done, they submitted, it would be seen that respondent did not prove his claims, as his witness, P.W.1, according to them, contradicted himself on material issues first as to when he called 2nd appellant on phone and when the said defamatory utterance was made by 2nd appellant to him. All that, they argued, shows that Respondent did not prove publication of the alleged defamatory words to P.W.1 or any other person as alleged.
In the same vein, they submitted, Respondent did not also establish his case of breach of his fundamental right to personal liberty as he was by his own showing, according to them, arrested and detained by the police and not by them who merely lodged a complaint to the police. For them to be liable for his arrest and detention, they argued and cited Isheno v. Julius Berger (Nig.) Plc (2008) 6 NWLR (PT 1084) 582 AT 597 (SC), (2008) LPELR-1544 (SC) p.15-16, he must establish not only that that they lodged the complaint that led to his arrest but also that the said complaint was frivolous or malicious and that they actively directed the police to arrest and detain him. That, they submitted, was missing in this case, for he was only able to show that they made a complaint of cheating and criminal breach of trust against him to the police at Dutse Police Division when they discovered that their ₦8,800,000.00 in respect of electricity bills collected by him from 1st Appellant’s customers was unremitted. They maintained that it was the police that used their discretion to arrest and detain him; that aside the fact that they assisted the Police with their vehicle for the investigation, he did not allege or prove that they specifically directed the police to arrest or detain him. They referenced paragraph 22 of his statement of claim as showing that they actually produced electricity bills, duplicates, receipts and record books issued by 1st appellant to its customers covering his area of responsibility in Ringim, which fact, they further submitted, substantiated their claim. They asserted that it is their constitutional right to make complaint to the police; that they cannot be held responsible for the independent actions of the police in arresting and detaining anyone in the course of their investigation the subject of their complaint which in this case is respondent.
They argued, too, that even though respondent in his statement of claim labeled their complaint frivolous and false, he did not tender the report of the police or call any police witness to testify on the outcome of their investigation, meaning that no admissible evidence was adduced by him to establish that assertion.
On the withdrawal of their complaint from the police, they said the evidence before the trial Court showed that they withdrew it upon entreaties from respondent and one Senator Ubale Shittu.
Regarding Respondent’s assertion that he was paraded around Ringim town handcuffed from house to house in the course of the investigation, they said respondent also admitted under cross-examination that he was handcuffed but the handcuffs were removed at Ringim. They submitted further that Respondent did not also tender documentary evidence to support his assertion that people made snapshots and video recordings of him and uploaded same on social media sites while he was being paraded round Ringim Town in handcuffs in the course of the house to house investigation.
All the foregoing, they submitted, showed that Respondent did not prove his allegation of breach of his right to personal liberty by them on preponderance of evidence and we should so hold and set aside the judgment of the lower Court and make an order dismissing his case for lack of merit.
Respondent in answer submitted that it is not enough for appellants to only complain that the trial judge failed to evaluate the evidence adduced before him; that for them to succeed in persuading this Court to tamper with that Court’s decision they must go further to show that that omission occasioned miscarriage of justice or that the judgment was manifestly perverse. His counsel cited passages from three decisions of this Court in Mabaiyedun v. Olabode (2015) ALL FWLR (PT 792) 1628, Nkado v. Obiano (1997) 5 NWLR (PT 503) 31, and Abakpa v. Onoja (2015) ALL FWLR (PT 792) 1729 all of which I note dealt with the issue only of when a judgment is said to be perverse and liable to be set aside for that reason. He then went on to submit that the trial judge ‘painstakingly’ considered the submissions of counsel to parties on the three issues he, the judge, formulated so appellants’ complaint is frivolous and should be rejected. That is even as he also seems to recognize that the trial judge did not do any proper evaluation of the evidence led by parties before him; for he also said at paragraph 4.19 of his brief of argument that: “My Lords, since the trial Court considered review of evidence though in the address of the respondent alone, [it] serves the purpose of evaluation of evidence on the trial Court as it encompasses both evidence led by the respondent and the appellants.”
On appellants’ invitation to us to evaluate the same evidence, he argued that the gamut of the evidence adduced before the trial judge was oral and not documentary evidence so this Court is not in as good a position as the trial Court to evaluate it.
Coming to appellants’ attack of the evidence of P.W.1 on grounds of contradictions, he argued, first, that there was actually no contradiction in the evidence of P.W.1; that what appellants pointed out was at best discrepancies in his evidence, that even if there was contradiction at all it did not impinge on the material issue in the case which is whether 2nd appellant did receive a telephone call from P.W.1 asking him to re-engage him, in response to which 2nd appellant told PW1 that he (Respondent) was a thief, womanizer and drunkard. He pointed out that that material fact was proved beyond reasonable doubt especially as P.W.1 was not challenged on it by appellants during his cross-examination even when P.W.1 deposed to it in paragraph 5 of his witness statement on oath. The Court, he submitted, has a duty to accept and act on evidence that is not challenged.
He submitted too that he also proved breach of his right to liberty by appellants. He said that unlike Isheno v. Julius Berger supra cited by appellants, appellants did not merely report commission of crime to the police, they specifically mentioned his name to the police and went ahead to convey him in their own vehicle to his hometown accompanied by their officers and influenced the police to detain him beyond the reasonable time of twenty-four hours provided by the Nigerian Constitution.
He pointed out that throughout the trial in the lower Court appellants could not even present to it the bills, record books and duplicate receipts in their possession to prove their allegation even as he gave them notice to produce them.
Resolution of issue
It is trite and in fact good law that a trial Court is duty bound, after receiving evidence from parties and their witnesses, to evaluate impartially such evidence before arriving at its decision, a duty described by Onnoghen JSC (later CJN) in Fagbenro v. Arobadi (2006)7 NWLR (PT. 978) 172 AT 193 as “sacred”. In performing that sacred duty the Court is bound to set out its appraisal and thoughts showing how and why it came to its findings of fact and final determination on the issues. See UBA v. Mustapha (2004) 6 NWLR (PT 652) 468 AT 469, 472 para D. If it fails in that duty an appellate Court will intervene either to re-evaluate the evidence or send the case back for retrial, depending on whether or not the unevaluated evidence bordered on credibility of witnesses. See Anyanwu v. Uzowuaka (2009) ALL FWLR (Pt 499) 411, Mainnage v. Gwama (2004) 12 MJSC 34, Woluchem & Ors v. Gudi & Ors (1981) 12 NSCC 214 AT 220-211, Atolagbe v. Shorun (1985) 1 NWLR (PT 2) 360, C.P.C. v. I.N.E.C. (2012) ALL FWLR (PT 617) 605 AT 633 and Anyanwu v. Uzowuaka (2009) ALL FWLR (Pt 499) 411 AT 426-427. Section 15 of the Court of Appeal Act 2004 also specifically states that this Court in hearing appeals “shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a Court of first instance and may re-hear the case in whole or in part…”
In Wassah v. Kara (2015) ALL FWLR (PT 769) 1034 AT 1954, it was said (Rhodes-Vivour, J.S.C.) that:
“There are few cases where a retrial order should not be made. If after examining the evidence this Court finds that it is in a position to do justice, this Court should proceed to correct the decision, and, in such circumstances, it would be wrong to order a retrial.”
Having carefully gone through the lower Court’s judgment myself, I am not by any means persuaded that it did any evaluation of the evidence that was adduced before it before accepting respondent’s case and entering judgment for him. All it seems to have done in its 65-page judgment is simply to summarize the evidence of the six witnesses that testified before it, formulate three issues, reproduce the arguments of counsel to parties and then affirm the same arguments of respondent’s counsel and enter judgment in respondent’s favour. That much I have shown respondent also seems to concede when he said at paragraph 4.19 of his brief of argument that:
“My Lords, since the trial Court considered review of evidence though in the address of the respondent alone, [it] serves the purpose of evaluation of evidence on the trial Court as it encompasses both evidence led by the respondent and the appellants.” (Emphasis mine)
Summarization of evidence is not the same as evaluation of evidence. See Mkpinang v. Ndem (2013) 4 NWLR (PT. 1344) 302 AT 315, (2012) LPELR-15536 (SC) AT 22-24 and Anyanwu v. Uzowuaka (2009) ALL FWLR (Pt. 499) 411(SC).
I am therefore of the same opinion with appellants that the justice of this case requires that this Court evaluate the evidence by itself and reach a decision. That exercise, I am again of the opinion, can be effectively carried out by this Court by relying on settled principles of law in drawing necessary inferences from the evidence adduced by parties and the pleadings of parties before the Court. I proceed to do that now.
I start with the evidence adduced by parties as it relates to respondent’s claim for defamation. On that, I must first observe that, contrary to appellants’ thinking, a calm reading of the way respondent framed his claims suggests clearly that his claim for slander is not founded on only the utterance of 2nd appellant to P.W.1 and Senator Gumel during the phone calls but also in the manner he was said to have been handcuffed and paraded as a common criminal around Ringim town in the course of the police investigation of appellants’ complaint. That much he made clear when after averring to the alleged slanderous utterances of 2nd appellant to the two politicians in the course of their telephone conversation with him, he went on to further aver in paragraphs 26, 28, 35, 36 and 37 of his statement of claim as follows:
26. The claimant avers that 2nd defendant denied the claimant’s claim at State CID in paragraphs 24 and 25 and provides (sic) vehicle of the 1st defendant Hilux model and the police used it to convey the claimant, three police officers, supporting staff of the 1st and 2nd defendant Aminu Yusha’u, lineman, Sabutu Alasan, Chief Accountant, Computer Operation Officer and driver to the Katutu Quarters, Galdanci Quarters and Walawa Quarters all in Ringim Town, Ringim Local Government, Jigawa State (areas of responsibility of the claimant when he was working under the 2nd defendant) with the claimant handcuffed where they conducted house-house investigation.
28. The claimant further avers that during the above investigation people in the community used to follow them chanting that the claimant is a thief and had stolen 1st defendant’s money. Some of them made video recording with their handset of the claimant handcuffed and shared it with others. Some of them made snapshot of the claimant and upload same on social media (Facebook) with caption that the claimant had stolen the 1st defendant’s money.
35. The claimant avers that since the allegation against him by the defendants became public knowledge through house to house investigation by the police which lead video covering and snapping the claimant handcuffed and releasing same on Facebook the claimant had found it difficult to secure job to take care of his family.
36. The claimant avers that people from his community and Ringim Town now looked (sic) down at the claimant as thief who stole the 1st defendant’s ₦8,800,000.00 and no longer willing to interact with the claimant or deal with him in any business transaction.
36. The claimant avers that his political mentors Sen. Abdullahi Ojo Gumel and Hon. Muhammed Gusau Boyi no longer held (sic) him in the same esteem as before and no longer willing to entrust him anything.
38. The claimant avers that he is a politician and planning to contest for councillorship of Sintilmawa ward in future Local Government elections but the above allegations by the defendants destroy my ambition as I now no longer command respect in my ward.
To erase any doubt that his claim for defamation was not based on only the utterances of 2nd appellant in his telephone conversation with his two ‘mentors’ but also in his parade by appellants in handcuffs around the three quarters of Ringim town aforementioned, respondent framed his first declaratory relief thus:
“Whereof the claimant claimed against the defendant as follows:
1. A declaration that the defendants by their acts and utterances as contained in the statement of claim defamed the character of the claimant.” (Italics mine)
I should pause to point out here that, the fact that slander and even libel can also lie in actions and gestures, and not only by spoken words, is not open to doubt. In Hirat Aderinsola Balogun v. National Bank Nigeria Limited (1978) LPELR-723 (SC) Idigbe, J.S.C., made that point very clear when he said (at pages 22-23) that:
“After all, it is now well known that slander exist as much in spoken words as in gestures or actions. Sometimes a mere act may convey a defamatory imputation if it would be so understood by reason of a convention meaning or by reason of inferences to be drawn from it, whether by the ordinary man, or by some person with special knowledge to whom it was published (see Gatley on Libel and Slander 7th Ed. p.83 Art. 85). Thus it was held in Jeffries v. Duncombe (1809) 2 Camp. 3, that it was defamatory to place a burning lantern in front of a man’s house during the hours of day (i.e. daytime) thereby intending to make out the house as a bawdy-house, that is, a brothel; and in Cox v. Cox (1814) 3 M & Sat 114 Lord Ellenborough C.J. was of the opinion obiter, that the act of holding up an empty purse before a crowd and gesticulating in the plaintiff’s direction could be considered defamatory, although there were no slanderous words accompanying the action.”
With that, I return to the question, first, of whether respondent proved his cause of action of slander of imputation of crime, etc, by way of appellants’ utterance and actions.
Taking on first the alleged utterance of 2nd appellant to P.W.1 (Hon. Boyi) that appellant was a thief and stole 2nd respondent’s ₦8,800,000.00, etc, which utterance of stealing is slander actionable per se if proved, it cannot be seriously argued that that allegation was not proved. Why? Because P.W.1, to whom those words were alleged made by 2nd appellant, was not challenged at all on it by appellants when he entered the witness box to adopt his witness statement on oath where he deposed in paragraph 5 that: “5. I called the 2nd defendant in order to plead to him to re-engage the claimant but the 2nd defendant told me in Hausa language to the effect that “Yaronka barawo ne ya saci kudin KEDCO ₦8,800,000.00 kuma shashaye yake da neman mata kuma babarsa ‘yar gani kashenin PDP ce,” meaning “your boy is thief, he stole KEDCO’s money ₦8,800,000.00 and he is a drunkard, womanizer and his mother is a staunch supporter of PDP.” (See p. 105-106 of the ecords).”
Appellants, particularly 2nd appellant, who denied in their joint statement of defence that 2nd appellant ever uttered such words to P.W.1 during their telephone conversation, simply chickened out when brought face to face with P.W.1. The law is settled that in such circumstances the Court has a duty to accept and act on the evidence that is not challenged by the person who had the opportunity to challenge it. SeeOgunyade v. Oshunkeye & Anor (2007) LPELR-2355 (SC); Odulaja v. Haddad (1978) 2 S.C. 79, Oforlete v. State (2000) FWLR (PT 12) 2081, (2000) 12 NWLR (PT 681) 451 (SC).
Juxtapose that on appellants’ admission in paragraph 12 of their amended statement of defence that 2nd appellant actually spoke with P.W.1 on the telephone on respondent’s re-engagement and one will be left with no other option than to agree with respondent that the discrepancies in the evidence of P.W.1 as to dates, etc, when the said telephone interview took place that are being harped on by appellants are completely irrelevant and of no effect to the evidence of PW1. This is because the law is again well settled that for contradictions to have effect on the evidence of a witness, they must relate to material issues in the case, as mere inaccuracies by witnesses on immaterial issues like dates events in issue took place have no adverse effect on the evidence of a witness where the happening of the event is clear on the evidence and pleadings before the Court. That much is settled beyond dispute by a long line of cases more particularlyState v. Salawu (2011) 18 NWLR (PT. 1279) 883 AT 913, 916-918 (SC), Mamuda v. State (2019) 5 NWLR (PT 1664) 128 AT 141 (SC); Egesimba v. Onuzuruike(2002) LPELR-1043 p. 21-22 (SC); Nwokoro v. Onuma (1999) 9 SCNJ 63 AT 75-76 (SC).
As regards the other limb of the same slander founded on the actions of the appellants as earlier highlighted, the sting of the alleged slander there seems to lie in the handcuffs respondent claims he was made to wear during the house to house investigation, which he said portrayed him to the people in Katutu Galadanci and Walawa Quarters, all in Ringim Town, that he was a thief who had stolen 1st appellant’s money. He made heavy weather of the said handcuffs in both his statement of claim and witness statement, for he also seems to realize that without those handcuffs on his wrists the imputation/inference he was relying on could well be difficult to draw, as any onlooker who is not familiar with the story behind his being in the company of the police and his former employee could also interpret it to mean that the police and his former colleagues were perhaps just only giving him security cover for the purposes of his work. So did he prove this averment that he was actually wearing or made to wear handcuffs during the house to house investigation at Ringim? Certainly not; for Respondent, when quizzed on it under cross-examination, capitulated and admitted that:
“Yes, I was handcuffed but at Ringim the handcuff was removed.”
Yes, it is true his 3rd witness (P.W.3), Maduwa Garba, a fellow sacked former colleague of his at 1st appellants, swore both in his witness and cross-examination that he actually saw respondent in handcuffs during the house to house investigation his Galadanci, but it is clear that like respondent, P.W.2 also exaggerated what he saw, or may not have even seen at all, when he claimed to have seen respondent in handcuffs during the investigation in Ringim town. This becomes even clearer when one again juxtaposes first Respondent’s averment in paragraph 26 of his statement of claim that Galadanci quarters of P.W.3 is also in Ringim town where he said his handcuffs were removed. Put simply, this limb of Respondent’s claim of slander was not made out by him.
That takes me to his complaint of breach of his right to personal liberty by appellants. Here, appellants’ contention is that they simply made a complaint and it is the police that arrested and detained respondent so they cannot be properly held liable for his arrest and detention. That is even as they admitted that they went the extra mile of providing the Police with their own vehicle for the arrest and investigation of their complaint. They argued, too, that to hold them liable respondent needed to prove that their complaint was false or malicious and or that they actively directed the Police to arrest and detain him. They submitted that the fact that Respondent also admitted that they presented to the Police electricity bills, duplicates, receipt booklets and record books issued by 1st appellant to its customers in Ringim covering the area of his responsibility shows that they substantiated their complaint so it cannot be described as frivolous and they cannot be held responsible for any action taken on it by the police. They argued, too, that it was Respondent’s duty to call the Police to testify given his pleading that the police confirmed to him that their complaint was false; that his failure to call the Police meant that the falsity of their complaint was not proved. They maintain that the evidence before the trial Court showed that they withdrew their complaint upon entreaties from Respondent and one Senator Ubale Shittu and we should so hold especially as Respondent also admitted that the said Senator Shittu actually volunteered on his behalf.
First, the true position of the law in this area was stated in Okafor v. Abumofuani (2016) 12 NWLR (PT 1525) 117, (Sanusi J.S.C) as follows at p.140:
“It is trite law that where a report is made against a person specifically mentioned as a suspect or accused and the report is later found to be false, malicious, ill-motivated or unfounded, the person so reported and arrested and detained is entitled to damages to be paid to him by the person who made the false report since he is the person who set the law in motion against the victim falsely. The victim also needs not join the police as party as he can sue in his personal capacity as done by the respondent in the present case. See Okonkwo v. Ogbogu supra.”
Okoro JSC in the same case clarified the issue further and drew a fine distinction between Okafor v. Abumofuani and Isheno v. Julius Berger Nig. Plc (2008) 6 NWLR (Pt. 1084) 582 relied on by appellants where arrest and detention is made by the police upon a genuine complaint made to it by a person, in which case the person making such complaint is not liable, when His Lordship said thus in his concurring opinion:
“It is trite that where a person makes a genuine complaint against another to the Police and the latter is arrested, detained and prosecuted by the Police, he cannot be said to have put the law in motion against him. See Gbajor V. Ogunburegui (1961) 1 All NLR (Pt. 1) 853, Isheno V. Julius Berger Nig. Plc. (2008) 6 NWLR (Pt. 1084) 582. However, where a report is made to the Police and the suspect is specifically mentioned, and the report is found to be false, malicious, ill-motivated and tissues of lies, in a claim for damages, the victim of the report shall be entitled to damages. In such a suit, the Police are not a necessary party because part of their duties is to receive complaint and act on it accordingly.” (Emphasis all mine)
As to who bears the burden of proof of justification for the arrest and detention in that situation, I once again refer to Clerk and Lindsell on Torts, 16th Ed, at Article 17-39 where it is stated thus:
“Whereas in an action for malicious prosecution the plaintiff must establish absence of reasonable cause, in an action for false imprisonment the burden lies on the defendant to justify the arrest.” (Italics mine)
See also Fajemirokun v. C.B. (C.L.) (Nig.) Ltd (2002) 10 NWLR (PT 774) 95 AT 111, Obinna Obiegue v. A.G.F. supra at p.216, Jim-Jaja v. C.O.P. (2011) 2 NWLR (PT 1231) 375 AT 393 and 398 (C.A.), Ubani v. Director, S.S.S. & Another (1999) 11 NWLR (PT 625) 129 AT 143.
So clearly the burden of proof lay on appellants as defendants to show that the complaint they made to the police against Respondent, which complaint resulted in his arrest and detention but was later withdrawn by them even after investigation had commenced, was not ill-motivated or unfounded nor frivolous. Did they discharge that burden? Again I have no difficulty holding that they did not. If anything, the fact that they did not allow their complaint of stealing of their over ₦8m to run its full course with the police but chose to withdraw it even after investigation had commenced raises the presumption that something was very wrong with the complaint. That presumption is also supported by Section 167 of the Evidence Act 2011 mandating the Court to presume the existence of any fact which it deems likely to have happened, regarding being had to the common course of natural events, human conduct and public and private business in their relationship to the facts of the particular case. It was therefore their duty to show that there was indeed some substance in their complaint and it was not by any means ill-motivated. And they do not do that by merely asserting, as they did, that they produced some documents to the police to substantiate the complaint, or that Respondent cried and begged them for forgiveness at the police station and even one Senator Ubale Shittu also intervened on his behalf hence they withdrew their complaint. Since those allegations were denied by respondent in his reply with even a further assertion that even when Senator Shittu tried to intervene in the matter appellants rejected the offer, it was appellants’ duty to call Senator Shittu and even the policemen before whom they claim respondent begged for forgiveness and withdrawal of the complaint to testify to those allegations. Having omitted to do that, the least they could have done next in that direction was to tender at the trial Court their said electricity bills, receipts, duplicates and booklets to show that those documents somehow support their complaint so there was reason for the complaint.
Those are the only reasonable ways to erase the impression that could be created in the mind of the Court and any impartial onlooker that they withdrew their complaints because they may have come to the realization, especially after investigation, that respondent did not actually steal or divert their funds as they initially thought so their complaint was frivolous as he always maintained and the sooner they terminated it by withdrawing it the better.
That necessarily activates the law as set out in Okafor v. Abumofuani supra that they, appellants, are the ones who set the law in motion against Respondent with their said ill-founded withdrawn complaint to the police for which they even went the extra mile to zealously provide the police with their own vehicle to investigate, even as there is nothing on the records to suggest that the police did not have its own vehicle to carry out their investigation. In summary, I hold that Respondent proved that appellants were responsible for his arrest and five-day detention and so liable for breach of his right to personal liberty.
Issue 2: That takes me to issue 2 where Mr. M. I. Abubakar for appellants argued that the lower Court was in any case wrong in finding 1st appellant vicariously liable for slander for words only alleged uttered by 2nd appellant to PW1. He said that Respondent did not establish:
(1) the liability of 1st appellant for the said defamation, and,
(2) that 2nd appellant uttered the said words in the course of his employment as to render 1st appellant liable vicariously.
As regards his argument that Respondent did not establish the liability of 1st appellant for the said defamation, learned counsel relied on appellants’ earlier arguments of contradictions in the evidence of PW1 to whom the slanderous words were alleged published by 2nd appellant. I have since rejected that argument while considering issue 1 and so shall it remain.
On the second leg of his argument of need for respondent to prove that 2nd appellant uttered the said slanderous words to P.W.1 in the course of his employment, counsel cited the cases of Ifeanyi Chukwu (Osondu) Co. Ltd. v. Soleh Boneh (Nig.) Ltd (2000) LPELR-1432 (SC) and Dantata & Sawoe Construction Co. Nig Ltd & Anor v. Ajayi (2013) LPELR-20492 (CA) p.27 to submit that 1st appellant can only be held vicariously liable for the tort of his employer, the 1st appellant, if it is shown that he uttered the said words in the course of his employment with 1st appellant. That, he said was not the case here as respondent neither alleged nor proved that it was 2nd appellant that dismissed him from the service of 1st appellant or that it was within the scope of duties of 2nd appellant to re-engage him. In further support of that contention, counsel referenced what he called P.W.1’s admission in cross-examination that his telephone discussion with 2nd appellant was a private one. He submitted that even the tenor of their discussion showed that it was a private one by P.W.1 soliciting the assistance of 2nd appellant in re-engaging Respondent in 1st appellant’s employment so 2nd appellant was not in the course of his employment with 1st appellant when he engaged in that telephone conversation with P.W.1.
In reply, Respondent argued that it is not in issue that there existed a master and servant relationship between appellants; that they admitted that fact in their joint statement of defence. He further submitted that PW1 called 2nd appellant in his capacity as 1st appellant’s Business Manager and their discussion was in respect of 1st appellant’s business so it follows naturally that 2nd appellant uttered the defamatory words in question in the course of his employment with 1st appellant and as its servant.
Resolution of issue
The law is that where the relationship of master and servant exists, the master is liable for the torts of his servant so long as they are committed in the course of his employment. The nature of the tort is immaterial and the master is liable even where liability depends on a specific state of mind and his own state of mind is innocent. Clerk and Lindsell on Torts, 16th Ed, at Article 3-17 at p.209. It is equally settled that slander may be joint tort, as where one instigates another to utter the slander, or similarly in the case of master and servant. See again Clerk and Lindsell on Torts, 16th Ed, at Article 21-48 at p. 1119.
In determining whether a wrongful act was done by a servant in the course of his employment, all the surrounding circumstances must be taken into account and not merely the particular act that leads to the damage: Clerk and Lindsell on Torts, 16th Ed, at Article 3-19 at p. 213. Following this lead and taking into account the whole of the surrounding circumstances of the case as presented earlier in this judgment, including the fact (1) that 1st appellant also saw need to formally lay a complaint to the police of the same stealing allegation against Respondent which its Business Manager, 2nd appellant, alleged against Respondent, (2) the fact that 1st appellant joined 2nd appellant to vigorously pursue that complaint to the extent of even making available its vehicle and staff to the police to pursue the same allegation of ‘you are a thief; you actually stole my ₦8,800,000.00,’ and (3) given Respondent’s assertion in his evidence under cross-examination that 2nd appellant was at the time a member of 1st appellant’s Management, which assertion 1st appellant did not also try to challenge, I am unable to reach any other conclusion than that 2nd appellant, who 1st appellant by its new stance seeks to throw under the bus, actually uttered those words in the course of his employment with it, so 1st appellant is vicariously liable for his said slanderous utterances to P.W.1. This issue is accordingly resolved against appellants.
Issue 3: Whether on the facts of this case the trial judge’s award to respondent of ₦5,000,000.00 general damages for slander and another ₦5,000,000.00 for breach of his fundamental right to personal liberty, as well as order directing 2nd appellant to offer public apology to Respondent via two reputable Radio stations in a jingle twice a day for four days, is not excessive, unjustifiable and unreasonable.
Here appellants first submitted that although an appellate Court will not ordinarily interfere with award of general damages by a trial Court simply because it would have awarded a different amount in similar situation and circumstances, it would interfere if it is shown that the trial Court acted under a mistake of law, the award is arbitrary or the amount awarded is extremely high or too low as to make it in the judgment of the appellate Court an entirely erroneous estimate of the damages to which the plaintiff is entitled, or where there was a wrong exercise of discretion in the award, or the trial Court acted in disregard of principles of law or acted under a misapprehension of fact or took into account irrelevant matters, or where injustice will be done.
And descending specifically on the ₦5,000,000.00 damages awarded Respondent by the lower Court for slander, Mr. Abubakar for appellants cited NTA v. AIC Ltd (2018) LPELR-45320 (CA) p. 36-38 to submit that the factors the Court considers in assessing quantum of damages in defamation actions are the conduct of the plaintiff, his position and standing in life, the nature of the libel, the mode and extent of publication, conduct of the defendant and his refusal to retract or render apology to the plaintiff. Counsel then related these factors to the instant case by starting with the conduct of the plaintiff and pointed out that it is common ground that the telephone conversation between 2nd appellant and PW1, in which the alleged slanderous words were made, was prompted by respondent when he requested PW1 to plead with 2nd appellant to make 1st appellant re-engage him.
On the position and standing of respondent alleged defamed, counsel observed that respondent was just a casual employee of 1st appellant on ₦20,000.00 monthly salary; that he had even already lost that job at the time of the slander. Counsel next emphasized the fact that Respondent was just a political thug as P.W.1 confirmed under cross-examination. He said the nature of the alleged defamation was also non-permanent and the alleged defamatory words uttered only via a telephone call to just PW1 – the allegation that the same words were also uttered to Senator Gumel having been abandoned, according to counsel, as no evidence was led in that regard. He submitted, too, that 2nd appellant did not utter the said words maliciously, and that respondent did not even give appellants the opportunity to make a retraction or apologize by drawing their attention to the slander and demand an apology. Had the trial judge adverted his mind to all these, counsel submitted, he would not have awarded respondent damages of ₦5,000,000.00 which according to him was arbitrary and excessive. He concluded on this sub-issue by wondering what is the good character and reputation of the political thug that respondent is that is worthy of vindication by award of damages of as much as ₦5,000,000.00.
Coming to the ₦5,000,000.00 damages awarded respondent by the lower Court for breach of his fundamental right to personal liberty, counsel submitted that the same principles for award of general damages adumbrated above are ‘largely’ applicable to it too. He submitted that that award was also excessive and amounts to a wrong exercise of discretion by the trial judge. He once again stressed the evidence of PW1 that Respondent is his political thug and submitted that, being a political thug, Respondent is a person of very low standing and reputation in society; that he was even unemployed at the time of his detention which also lasted for ‘just’ five days, as counsel put it. There was also no allegation that he was tortured while in detention, just as it was not proved, too, that appellants were malicious in lodging their complaint against him to the police. On the contrary, counsel submitted, the pleadings and evidence before the trial Court showed that appellants had reasonable grounds for making their complaint.
Learned counsel next took on the order of the trial judge directing appellants to offer public apology to Respondent via twice a day radio jingles and submitted that that order was also unjustified, unreasonable and bears no correlation to the nature and mode of publication of the defamatory words, which he again pointed out were only uttered in the course of a private telephone conversion to P.W.1 alone. Counsel urged us to intervene and set aside that order too.
Respondent was in support of all the orders and awards of the trial Court attacked by appellants. His counsel Mr. Baffa Alasan drew our attention to the fact what appellant actually claimed in his action was ₦50,000,000.00 damages for defamation and breach of his fundamental right by appellants, for which the Court awarded him just ₦10,000,000.00 which is only 10% of the amount he claimed. He submitted that the defamatory words imputed commission of crime by Respondent, which entitles him to award of damages and public apology. He then stressed the fact that he was arrested and detained for five days at the instance of appellants, which also entitles him to compensation. Counsel said respondent was ‘not a thug but a respectful law-abiding citizen.’ He submitted that taking everything into account, the awards and directives of the trial Court were properly made.
Resolution of issue
As appellants also correctly pointed out, an appellate Court does not interfere with award of general damages by a trial Court simply because it would have awarded a different amount if faced with similar situation and circumstances. This is so because award of general damages is simply an exercise of discretion by the trial Court. An appellate Court will however interfere if it is shown that the trial Court acted under a mistake of law, the award is arbitrary or the amount awarded is extremely high or too low as to make it in the judgment of the appellate Court an entirely erroneous estimate of the damages to which the plaintiff is entitled, or where there was a wrong exercise of discretion in the award, or the trial Court acted in disregard of principles of law or acted under a misapprehension of fact or took into account irrelevant matters, or where injustice will be done. See Access Bank Plc v. Ugwuh (2013) LPELR-20735 (CA) 36-38.
I shall now apply these principles to the damages awarded by the trial Court for the two causes of action of slander and breach of respondent’s right to personal liberty.
Starting first with the damages of ₦5,000,000.00 awarded by the trial judge to Respondent for slander, the relevant factors the Court takes into account in assessing damages in defamation actions are the conduct of the plaintiff, his position and standing in life, the nature of the libel, the mode and extent of publication, conduct of the defendant in the case, including how he defended the case as well as his refusal to retract or render apology to the plaintiff. See NTA v. AIC Ltd (2018) LPELR-45320 (CA) P. 36-38. Here, two complaints of the appellants stand out. First is their complaint of the excessiveness of the ₦5,000,000.00 damages the lower Court awarded Respondent for slander having regard to the evidence they elicited from P.W.1 during cross-examination that respondent was P.W.1’s political thug. They have argued rather strenuously that that evidence ought to have weighed with the trial judge in assessing damages to respondent for it shows that respondent being a political thug has none or not much of a reputation to lose from the slander to merit damages of ₦5,000,000.00 that the trial Judge awarded him. I am afraid this complaint is flawed in two respects. First, the case at hand having been tried on pleadings, any evidence, including evidence elicited during cross-examination as it is here that Respondent is a political thug of P.W.1 now sought to be relied on by appellants, must relate to facts pleaded before same can be admitted in evidence and acted upon by parties and the Court. That point is too settled in our jurisprudence to require any debate, the cases of Edward Okwejiminor v. G. Gbakeji & Anor (2008) LPELR-2537 (SC) p. 19, 36, 58; (2008) 5 NWLR (PT 1079) 172; (2008) ALL FWLR (PT 408) 405, Isheno v. Julius Berger (Nig.) Plc (2008) ALL FWLR (PT 415) 1632 AT 1647-1648 and p. 1653 (Tobi JSC, Onnoghen, JSC), Woluchem & Ors v. Gudi & Ors (1981) NSCC 214 AT 290 and Ogunmakinde v. Akinola (2002) FWLR (PT 105) 781 AT 798, B-F have put it beyond disputation. If appellants felt respondent was really a political thug and it should weigh with the Court in mitigating damages, they ought to have pleaded it so that respondent can also be afforded the right of joining issues with them on his said status by denying or accepting it, after all the rule that parties plead the facts they intend to rely on at the trial is based on fair hearing and the principle of audi alteram partem. The rationale for is that, by that way each party will be notified of the case he is coming to face and so prepare for it accordingly. See Atanda v. Ajani (1989) 3 NWLR (PT. 111) 511 AT 546 (SC). Without first pleading the said status of respondent as a fact in issue in the case neither appellants nor the Court can rely or act on it.
At any rate, even if appellants had pleaded it, it is doubtful if it would have counted for anything, because, for any fact to properly mitigate damages in a defamation action it must bear some relation to the matter complained of by the claimant. That is not the case here of appellants calling respondent a thief, drunkard and womanizer. That much is again borne out by the following passage of Clerk and Lindsell on Torts, 16th Ed, at Article 21-181 at p.1214:
“A defendant may give evidence of the plaintiff’s general bad reputation in respect of the subject matter in question.
… It is of course immaterial, if the cause of action be an imputation of drunkenness, to show that the plaintiff is reputed to be dishonest for the bad reputation which is pleaded in mitigation must bear some relation to the libel complained of.” (Emphasis all mine).
The other point counsel to appellants also tried to stress with some gusto is that the slanderous utterance of 2nd appellant was only made in a telephone conversation to P.W.1 so the publication was limited and that also ought to affect the assessment of damages. They added that Senator Abdullahi Ojo Gumel to whom the same words were also allegedly published by 2nd appellant was not called so the allegation of publication to him was abandoned. I am afraid they are wrong again. In the first place, I never came across any portion of the records of appeal where Respondent told the lower Court that he was abandoning his assertion that 2nd appellant uttered the same slanderous words to Senator Abdullahi Ojo Gumel too. On the contrary, his deposition in paragraphs 12 and 13 of his witness statement that 2nd appellant also defamed him to the Senator in the same words was not even challenged by appellants when he adopted that witness statement in the witness box and presented himself for cross-examination by them. Facts that are not disputed by the party who had the opportunity to challenge them, I repeat, are deemed admitted and so no longer in issue to require further proof. But even come to think of it: appellants never showed remorse in their defence. On the contrary, in their statement of defence and witness statements, they contumeliously labeled respondent’s suit ‘frivolous, vexatious and gold digging, totally lacking in merit and so deserving of an order dismissing it,” thereby further wounding his feelings, cause him unnecessary anxiety and so aggravate damages – a point the lower Court is entitled to take into consideration in assessing damages in defamation cases. See Western Publishing Co. Ltd & Anor v. Dr. Kayode Fayemi (2017) NWLR (PT 1582) 218. In those circumstances, it is hard to agree with appellants on their attack of the damages awarded by the trial Court. At any rate, an appellate Court does not interfere with damages awarded by a trial Court simply because given the same facts it would have awarded a different amount. See Guardian Newspapers Ltd v. Ajeh (2011) 10 NWLR (PT. 1256) 574 at 603 (S.C.), Access Bank v. Ugwuh (2013) LPELR-20735 (CA) 36-37.
As for their complaints about the damages of ₦5,000,000.00 also awarded by the lower Court for breach of respondent’s right to personal liberty, the facts of the said breach and appellant’s conduct as already highlighted is so egregious that one is even surprised that appellants could even complain of the award. The law attaches supreme importance to the liberty of the individual and if he suffers a wrongful interference with that liberty it remains actionable even without proof of special damage. Even under common law, damages awardable for such interference are at large and even where there has been no physical injury, substantial damages may be awarded for the injury to a man’s dignity or for the discomfort or inconvenience. Where liberty has been interfered with damages is awarded even though no pecuniary damage has been suffered. The time, place, manner of the trespass on the person of the claimant and the conduct of the defendant may be taken into account and the Court may award even aggravated damages on these grounds. It is also not necessary for the claimant to give evidence of damage to establish his cause of action or to claim any specific amount. See Okonkwo v. Ogbogu (1996) 5 NWLR (PT. 446) 420, (1996) LPELR-2486(SC) p. 127; Clerk and Lindsell on Torts, 16th Ed, at Article 17-39 and 17-58. It is the same importance the Constitution of this country attaches to the liberty of the person in its Chapter IV hence it is the only fundamental right that the Constitution expressly provides for compensation and even public apology once breach is proved. Such order for payment of compensation, it has been further stated, can be made even where a claim for compensation is not endorsed by the victim in his action. See Jim-Jaja v. CO.P. Rivers State (2013) 6 NWLR (PT 1350) 244-245. In summary, I have no hesitation in dismissing this limb of appellants’ compliant on this issue.
And now the final limb of the argument of appellants on this same issue 3 which this time relates to the propriety of the order of the trial judge that 2nd appellant make public apology to respondent via two reputable radio stations in a jingle twice a day for four days. As appellants also observed, correctly in my opinion, it appears clearly that this order was specifically made by the trial judge in respect of the slanderous words uttered by 2nd appellant against Respondent and not for the breach of the right to personal liberty of respondents by the two appellants, for it were otherwise the order would have been made against both appellants. That being the case, I am of the opinion that this relief/order of offer of public apology, which prayer and order is unfortunately becoming quite common in recent times in libel actions in this country, is not grantable. The reason for that is mainly that the Court cannot dictate the terms of the apology. See Winfield & Jolowicz Tort, 18th Ed. by W.V.R. Rogers, Art. 12-70 at p. 662 and Tort Law: Text and Materials, 3rd Ed. by Mark Lunney and Ken Oliphant, p. 760. On that ground, the lower Court’s order for 2nd appellant to make public apology to respondent must be and is hereby set aside.
In summary, issue 3 succeeds partially as to the order for public apology made by the lower Court but fails as to the damages awarded.
On issue 4, appellants’ argument was simply that relief 4 and 5 of the respondent’s writ of summons and statement of claim are incompetent and null and void for non-compliance with Order II Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009 because, according to them, fundamental rights enshrined in Chapter IV of the 1999 Constitution of this country has their own special rules for enforcement, which is the Fundamental Rights (Enforcement Procedure) Rules 2009, so the action of Respondent brought by way of writ of summons to enforce fundamental rights was incompetent and deprived the Court of jurisdiction to entertain it. Again I see no merit whatsoever in this argument. Fortunately, I had occasion to tackle this same argument in my lead judgment in the case of Professor Ango Abdullahi & Ors v. Nigerian Army (2019) LPELR-46925 (CA). There, in rejecting this argument of appellants, I first cited Eso, J.S.C. on the point in Saude v. Abdullahi (1989) LPEL-3017 (SC) where His Lordship said at p.50 thus:
“It seems to me that the whole complaint of the appellant in this respect is an attempt to draw a red herring. Let us ask the question: has the Court, that is, the High Court, jurisdiction to take an originating summons on the issues affecting Fundamental Rights? Of course, the answer is in the affirmative. The Constitution itself [that is the 1979 Constitution] spells out in its Chapter IV the Fundamental Rights of the citizen. So be it, but it did not stop there. Section 42 of the 1979 Constitution gives the High Court a special jurisdiction in respect thereof. It provides-
’41 – Any person who alleges that any of the provisions of this Chapter has been, is being or is likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
“To stop here for a moment, it is my view that it would not matter by what manner that application has been made, once it is clear that it seeks redress for infringement of the rights so guaranteed under the Constitution. Assuming the Statutory Instrument – S. 1.1 of 1979 had not been made, the person seeking redress could bring the action to Court in any manner that clearly depicts complaint of the infringement of the rights. Indeed the Statutory Instrument is so clearly worded that it does not lay the procedure therein as the only procedure by which redress could be sought. Fundamental rights are so important and they are not just mere rights. They are fundament. They belong to the citizen. These rights have always existed even before orderliness prescribed rules for the manner to be sought.” (Italics mine)
I then continued thus:
“His Lordship had espoused similar view in Ransome Kuti’s case (1985) LPELR-2940 at p. 38 by relying on among others the dicta of Fatai-Williams, J.S.C., in Aoko v. Fagbemi (1961) 1 ALL N.L.R. 40. …… It is worth pointing out, however, that, as opposed to His Lordship’s (Eso J.S.C.) correct observation in Saude v. Abdullahi that the 1979 Statutory Instrument was ‘so clearly worded’ (given that Order 2 Rule 2(2) of the 1979 Rules clearly stated that the application ‘must be made by notice of motion or by originating summons to the appropriate Court), the provisions of Order 2 Rule 2 of the 2009 Rules are not by any means that clear. And that is the reason for the understandably sharp divergence of opinions/interpretation by the trial judge, Mr. Usman for appellants and Mr. Mbah for respondents.
“For ease of reference, let me again reproduce Order 2 Rule 2 of the 2009 Fundamental Rights (Enforcement Procedure) Rules. It reads as follows:
An application for the enforcement of the Fundamental Rights may be made by any originating process accepted by the Court which shall, subject to the provisions of these rules, lie without leave of Court.
“First query is: Why say that an application for enforcement of Fundamental Rights may be made by ‘any originating process’, only to immediately qualify that statement by conferring discretion on the Court hearing such application to decide the particular originating process that shall be acceptable to it?
“Secondly, the rules having by its Interpretation provision in Order 2 earlier defined an ‘application’ thus:
“Application’ means an application brought pursuant to these rules by or on behalf of any person to enforce or secure the enforcement of his fundamental right.”
“and Rules 3, 4 and 5 of the same Order 2 on Commencement of Action having set out how an application under the said ‘Rules’ shall be by stating that:
3. An application shall be supported by a Statement setting out the name and description of the applicant, the relief sought, the grounds upon which the relief is sought, and supported by an affidavit setting out the facts upon which the application is made.
4. The affidavit shall be made by the applicant, but where the applicant is in custody or if for any reason is unable to swear to an affidavit, the affidavit shall be made by a person who has personal knowledge of the facts or by a person who has been informed of the facts by the Applicant, stating that the Applicant is unable to depose personally to the affidavit.
5. Every application shall be accompanied by a written address which shall be succinct argument in support of the grounds of the application,”
“will an originating process like a Writ of Summons, which is incidentally the most common type of originating process in litigation, be excluded from the meaning of ‘any originating process’ that Rule 2 of Order 2 says may be employed for enforcement of Fundamental Rights? If Writ of Summons can be employed, how does one bring it within the definition of ‘Application’ defined by the same rules as an application ‘brought pursuant to the Rules’ given that Rules 3, 4 and 5 of Order 2 require that such ‘application’ must be accompanied with Statement in Support, Grounds for the application, Affidavit and Written Address, when all of that are peculiar to originating motion and originating summons and not Writ of Summons? Does that mean that a Writ of Summons as an undoubted originating process is not acceptable as a means of commencing Fundamental Right Enforcement proceeding under the 2009 Rules as Mr. Mbah for respondents contends? Or does it simply mean that an applicant for fundamental rights enforcement proceeding who elects to proceed by way of Writ of Summons must reconfigure his Writ of Summons and statement of claim by introducing into them, or accompanying them with, the processes set out in Rules 3, 4 and 5 of Order 2 otherwise his process is defective and unacceptable as the trial Judge ruled in this case? Or could it even be that Mr. Usman S.A.N. is correct in his postulation that a simple and regular Writ of Summons without more meets the provisions of Order 2 Rule 2?
“I am not under any doubt that there is need for a revisit of the Fundamental Rights (Enforcement Procedure) Rules 2009 by the appropriate authority. It is in dire need of some tinkering, because, depending on the angle one decides to view it, all three different views espoused by counsel on both sides and the learned trial judge seems to be, and can be, accommodated by the 2009 Rules as they presently stand.
“Until that happens, I will rather go with the interpretation of Mr. Yunus Ustaz Usman, S.A.N., that a simple Writ of Summons, being an originating process under Order 2 Rule 2 of the Rules is and should be, acceptable for enforcement of fundamental rights pursuant to Chapter IV of the 1999 Constitution of this Country, PROVIDED the applicant or plaintiff avers clearly in his Writ and Statement of Claim that his action is for enforcement of fundamental right under Chapter IV of the Constitution and equally sets out clearly the particular fundamental right of his that has been breached for which he seeks redress. Not only do I think this view is supported by the importance of Fundamental Rights and the need to protect them as shown by even the importance the Constitution of this country attaches to them (a position further underscored by dicta in both Ransome-Kuti v. A.G., of the Federation and Saude v. Abdullahi supra), I also find further support for it in the Preamble to the 2009 Rules itself as signed into law by former Chief Justice of Nigeria Idris Legbo Kutigi. That Preamble begins this way:
1. The Court shall constantly and conscientiously seek to give effect to the overriding objectives of these Rules at every stage of human rights action, especially whenever it exercises any power given it by these Rules or any other law and whenever it applies or interprets any rule. (Italics mine)
“It goes on in Paragraph 2 to also enjoin parties and their legal representatives to help the Court further the overriding objectives of the Rules, saying:
2. Parties and their legal representatives shall help the Court to further the overriding objectives of the Rules.
“What are these overriding objectives of the Rules? They are contained in Paragraph 3 and states among others as follows:
3. The overriding objectives of these Rules are as follows:
(a) The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realizing the rights and freedoms contained in them and affording the protections intended by them.
(b) ………
(c) ……
(d) The Court shall proactively pursue enhanced access to justice for all classes of litigants, especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated, and the unrepresented. (Italics mine)
(e) …….
(f) The Court shall in a manner calculated to advance Nigerian democracy, good governance, human rights and culture, pursue the speedy and efficient enforcement and realization of human rights.
(g) Human rights suits shall be given priority in deserving cases. Where there is any question as to the liberty of the applicant or any person, the case shall be treated as urgent.
“The adjective ‘Overriding’ means more important than anything else in a particular situation. In other words, the Fundamental Rights (Enforcement Procedure) Rules 2009 itself also requires that more important than anything else, any Court dealing with fundamental right enforcement action shall ensure that the Constitution, especially Chapter IV (as well as the African Charter) are ‘expansively and purposely interpreted and applied with a view to advancing and realizing the rights and freedoms contained in them and affording the protections intended by them.’ It requires that the Court shall proactively pursue enhanced access to justice for all classes of litigants, particularly the poor, the illiterate, the uninformed, the vulnerable, the incarcerated and even the unrepresented who may not know a thing about the niceties of the Fundamental Rights (Enforcement Procedure) 2019 Rules let alone its nuances that learned trial judge, counsel and we here have been laboring to explain.
“It also says the Court should also approach cases of fundamental rights enforcement in a manner calculated to among others advance human rights and culture, pursue the speedy and efficient enforcement and realization of human rights.
“The technical approach adopted by the trial Judge and the even more stilted interpretation of Mr. Mbah for respondents is not in tandem with these overriding objectives. Yes, the law, generally, is that Preamble would not be taken into account where the enacting part of a statute or instrument is clear, it is equally settled too that a preamble can be an aid to construction when there is an ambiguity or when there are two conflicting views on the true meaning of an enactment, in which case the view which fits with the preamble ought to be preferred. See Ogbonna v. Attorney General of Imo State (1992) 1 NWLR (PT 220) 647, (1992) LPELR-2287 (S.C.) P. 24 – 25, 76. In any case, this preamble, as already pointed out here, is not only special the rule-maker also directs that it shall guide interpretation.”
See also Maitagaran v. Dankoli (2020) LPELR-52025 (CA).
On that basis, I also resolve this issue against appellants.
In conclusion, the appeal succeeds only as to the order of the lower Court that 2nd respondent offer public apology by radio jingles to Respondent for his slanderous utterance. For every other issue argued, the appeal fails and is dismissed and the orders of the lower Court, less the order for public apology, are affirmed.
The appeal having succeeded in part, parties are to bear their costs.
ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the lead judgment by my learned brother, B.M. Ugo JCA, and I agree completely with his reasoning and conclusion reached, which show great and robust legal considerations and industry.
The complaint against award for violation of fundamental rights was clearly misconceived as the suit was brought by writ of summons, and I think, inclusion of claim for breach of Respondent’s fundamental right under the relevant section of the Constitution was properly located in the Writ of Summons and protected in the Suit, by law.
The Respondent would only have had problems, in my view, if he had originated the Suit by means of the Fundamental Rights (Enforcement Procedure) Rules, 2009 and then included the claims for defamation. This is because the Fundamental Rights (Enforcement Procedure) Rules, 2009 is a specialized procedure, that is sui generis and discriminates against and/or does not admit of any other head of claim, and making same a principal or primary objection/subject of litigation. That is to say, that fundamental rights actions brought under the Fundamental Rights (Enforcement Procedure) Rules, 2009, pursuant to Section 46(1) of the 1999 Constitution (as amended), does not admit of any other head of claim, as primary focus of litigation. See the case of Henry Vs Bassey & Ors (2021) LPELR 56081 (CA):
The main grievance was that the Appellant trespassed into the 1st Respondent’s land and destroyed blocks she left on the land. She reported the matter to the Police. Then the Appellant “over reported” her and the other Respondents to the Police by going to three levels of the Police force including Force C.I.D, Annex, Alagbon, Lagos. It is immaterial that the reliefs sought are silent about the land dispute. The fact that counsel has drafted the reliefs as seeking the enforcement of the Respondents’ fundamental rights does not bring their grievance or complaint under the Fundamental Rights Enforcement Procedure Rules. In PETERSIDE v. I.M.B. (1993) 2 NWLR (Pt. 278) 712 at 718-719, Tobi JCA (as he then was, later JSC and now of blessed memory) stated thus: “It has now become a fashion or style of parties to push or force the provisions of Chapter IV into most claims which cannot in law be accommodated by the Chapter. This in my view was not a fundamental rights action. It was therefore incompetent under the Fundamental Rights Procedure.”
Per ABIRIYI, JCA
See also Ezeilo & Anor Vs Ezeonu (2019) LPELR – 48336 (CA), Abuja Electricity Distribution Company Plc & Ors vs Akaliro & Ors (2021) LPELR – 54212 (CA) and Nwachukwu Vs Nwachukwu & Anor (2018) LPELR – 44696 (SC), where my Lord Eko JSC, held:
“The application for the enforcement of the Appellant’s fundamental rights to personal property, family and private life, dignity of her person and against discrimination was brought at the trial Court in subtle way to settle the Appellant’s matrimonial dispute with her estranged husband and brother-in-law, respectively the 1st and 2nd Respondents herein. The Appellant had ingenuously crafted an otherwise matrimonial causes matter to fit into the special procedure offered by the Fundamental Rights (Enforcement Procedure) Rules (FREPR). That special procedure, on the peculiar facts of this case, does not avail her to ventilate her matrimonial dispute. A recap of the facts constituting the cause of action on which the Appellant, as the applicant at the trial Court, brought her application for enforcement of her fundamental rights, allegedly violated, will eloquently attest to this posture. The 1st Respondent is the husband of the Appellant. He resides in Lagos. The Appellant, a petty trader, was living in the Respondents’ family house in their hometown in Imo State. The Appellant and the 1st Respondent had misunderstanding which occasioned the intervention of the Social Welfare Officer for the settlement of the domestic issues. In the course of resolving the domestic dispute, the social welfare officer ordered the Appellant and 1st Respondent, respectively wife and husband, to undergo HIV tests. They did. The Appellant tested Positive. The 1st Respondent tested negative. On these facts, the social welfare officer advised the 1st Respondent to keep off the Appellant, sexually. The dispute between the Appellant and the 1st Respondent persisted, The latter, in his bid to cause separation allegedly disclosed the Appellant’s HIV status,
In the application, the Appellant alleged that the Respondents in her absence stigmatized her publicly with placard and that also, in her absence, the Respondents allegedly employed thugs to throw out her personal belongings from her matrimonial home. It is on these facts that the Court of Appeal, reversing the decision of the trial Court, allowed the Respondents’ preliminary objection, which the trial Court dismissed, that the trial Court lacked jurisdiction under FREPR Rules to entertain the action. The cause of action placed the Appellant’s suit within matrimonial causes in respect of which the FREPR is inapplicable. The orders made by trial Court, directing inter alia that the Appellant and her property be restored to her matrimonial home and restraining the Respondents from violating her private and family life are not orders the trial Court could make under FREPR. I hold the firm view the rights to conjugal rights, to continue to be married to an unwilling spouse, and not to separate and call quits to a marriage are not fundamental rights guaranteed under Chapter IV of the Constitution, 1999. The matrimonial causes so called under Section 114 of Matrimonial Causes Act which include dissolution and nullification of marriage, separation and restitution of conjugal rights, though apparently statutory, do not constitute fundamental rights under Chapter IV of the Constitution and for the purpose of FREPR.”
I think a flippant, who runs down the reputation of another person and subjects that person to the kind of ordeal that the Respondent went through in this case, should rather feel ashamed and remorseful, on coming to realize the full impact of his slanderous mouth, instead of aggravating the injuries he inflicted, on his victim, on appeal, by repeating his condemned words/stand, which he could not justify at the trial.
I too dismiss the appeal, in the main, and abide by the consequential orders in the lead judgment.
ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, BOLOUKUROMO MOSES UGO, JCA, and I am in complete agreement with the conclusion and reasoning reached therein that the appeal succeeds in part. I too allow the appeal in part and abide by all the consequential orders as contained in the lead judgment.
Appearances:
M.I. Abubakar, Esq. with him Yusuf Chiroma, Esq. For Appellant(s)
Baffa Alasan ,Esq. with him M.A. Auwal, Esq. For Respondent(s)
