MRS. ABIOLA BABALOLA & ORS v. MRS. CLARA OYE OTOKI & ANOR
(2019)LCN/12808(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of March, 2019
CA/L/1018/2016
RATIO
DEFENCE: DEFENCE OF JUSTIFICATION
“It is hornbook law that where the defence of justification is set up in an action for defamation, it implies an admission that the publication was made, but that it is true. It is then for the defendant raising the defence of justification to prove the veracity of the publication. Where he is able do so then he cannot be liable in damages, since damages are awarded where the publication is false: OJUKWU VS. NNRUKA (1998) LPELR (5683) 1 at 24-25. Paucis verbis, the plea of justification, does not mean that the claimant in an action for libel does not have a cause of action. It simply means that if justification is proved then the action will not succeed.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
ACTION: CAUSE OF ACTION
“The phrase ’cause of action’ has been variously defined in judicial decisions as the fact or combination of facts which give rise to a right to sue, which consists of the wrongful act of the defendant which gives the plaintiff the right to complain and the damage consequent due to the wrongful act. See EGBUE vs. ARAKA (1988) 3 NWLR (PT 84) 598 at 613, ECOBANK (NIG.) PLC vs. GATEWAY HOTELS LTD (1999) 11 NWLR (PT 627) 397 at 418, EGBE vs. ADEFARASIN (1987) 1 NWLR (PT 47) 1 at 20, AFOLAYAN vs. OGUNRINDE (1990) 1 NWLR (PT 127) 369 at 373 and SAVAGE vs. UWECHIA (1972) 1 All NLR (PT I) 251 at 257 or (1972) 3 SC 214 at 221. Cause of action is the factual basis or some factual situations a combination of which makes the matter in litigation an enforceable right or an actionable wrong. See IBRAHIM vs. OSIM (1988) 1 NNSC 1184 at 1194 (per Uwais, JSC as he then was) and TUKUR vs. GOVT OF GONGOLA STATE (1989) 4 NWLR (PT 117) 517 at 581.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
1. MRS. ABIOLA BABALOLA
2. MS. MOJISOLA RHODES
3. MRS. OLAYEMI BADEWOLE Appellant(s)
AND
1. MRS. CLARA OYE OTOKI
2. MR. OLUFEMI OLULOWO Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment):
This appeal was spawned by the disceptation arising from the letting out of the premises that housed the Law Office of the Late Chief Babashola Rhodes, SAN. The 1st & 2nd Appellants, who are daughters of the Late Chief Babashola Rhodes, SAN, contending that the Respondents do not have any authorization to partition and let out the office space of the Law Office of the Late Chief Babashola Rhodes, SAN, instructed the 3rd Appellant, a legal practitioner to write to the persons who were put into possession of the office space.
The Respondents, being the sole surviving sibling of the Late Chief Babashola Rhodes and the Head of Chambers at the Law Office of the Late Chief Babashola Rhodes respectively, considered the said letter libellous and in consequence instituted proceedings at the High Court of Lagos State in SUIT NO. LD/1432/2012: MRS CLARA OYE OTOKI & ANOR. vs. MRS. ABIOLA BABALOLA & ORS. wherein they claimed the following reliefs:
a. A declaration that the phrase ?These unscrupulous unauthorized persons employed by the Defendants in their letter dated 5th July, 2102 [sic] and the entire content of the said letter is libelous of the Claimants.
b. An award of the sum of N100, 000,000.00 (One Hundred Million Naira) to the 1st Claimant as general damages for libel against the Defendants jointly and or severally.
c. An award of the sum of N100, 000,000.00 (One Hundred Million Naira) to the 2nd Claimant as general damages for libel against the Defendants jointly and or severally.
d. An Order of Court directing the Defendants to retract the libelous letter dated the 5th of July, 2012 from all the entities to whom they have been published and a letter of apology to the Claimants respectively.
The parties filed and exchanged pleadings and the matter proceeded to trial. In the course of the testimony of the CW1, the Appellants filed an application for an order striking out the statement of claim and dismissing the Respondents claim for being on abuse of Court process. The application was contested and in a considered Ruling delivered on 22nd June, 2016 the lower Court dismissed the application. The Appellants were dissatisfied with the decision and appealed against the same on 4th July, 2016. The Ruling of the lower Court is at pages 55-60 of the Records while the Notice of Appeal is at pages 61-65 of the Records.
The Records of Appeal were compiled and transmitted and the Appellants filed their brief of argument on 20th October 2016. The Respondents failed to file their brief, consequent upon which the Court ordered on 20th June 2018 for the appeal to be heard on Appellants Brief alone. At the hearing of the appeal on 14th January 2019, the Respondents, though duly served with a hearing notice, were absent; whereupon Kingsley Oduah, Esq. (with Joseph Elofuke, Esq.), learned counsel for the Appellants adopted and relied on the Appellants Brief in urging the Court to allow the appeal.
The Appellants formulated two issues for determination as follows:
1. Whether the lower Court erred in law in dismissing the Appellants’ Motion dated 30th October 2014 objecting to the jurisdiction of the Lower Court when it held that on the face of the Respondents’ pleading there is a prima facie and/or arguable cause of action based on libel in relation to the Appellants’ letter dated 5th of July 2012 (Issue 1 is distilled from ground 1 of the Appeal.)
2. Whether the Respondent’s claim against the Appellants is an abuse of Court process. (Issue 2 is distilled from grounds 2, 3 and 4 of the Appeal).?
The issue distilled by the Appellants are intertwined and interwoven and dovetail one into the other. Accordingly, I would consider the submissions of the Appellants counsel and seamlessly resolve the appeal en bloc.
SUBMISSIONS OF THE APPELLANTS’ COUNSEL
It was submitted that the Respondents were busybodies and meddlesome interlopers who went into office of administrators by intrusion and lack the legal capacity to institute the action for libel as they were never appointed as legal representatives of the Estates of Late Chief Babashola Rhodes and Late JFD Branco, the owner of the building where the Law Office is situate. The legal capacity to sue, it was asserted, was a condition precedent to a determination of a case on the merits vide OWODUNNI vs. REGD TRUSTEE OF THE CCC (2000) 6 SC (PT III) 60.
It was stated that the Respondents, not having been lawfully appointed administrators or executors of the Estates, were executors de son tort and cannot benefit from their own wrongdoing and they therefore have no arguable or prima facie right of action and cause of action against the Appellants who were the duly appointed representatives of the Estate of the Late Chief Babashola Rhodes, SAN. The case of RUTHLINZE INTER? INVESTMENT LTD vs. IHEBUZOR (2016) 11 NWLR (PT 1524) 409 at 427, UDENSI vs. MOGBO (1976) 7 SC 1 and Black?s Law Dictionary, 8th Edition were referred to on the meaning of executor de son tort.
It is the further submission of the Appellants that the Respondents’ action is an abuse of Court process as there is no iota of law supporting the claim. Order 15 Rule 18 of the High Court of Lagos State (Civil Procedure) Rules, 2012 and Section 6 (6) (a) of the 1999 Constitution were invoked for the contention that the Court has the inherent jurisdiction to prevent abuse of its process. The cases of PALMER vs. STOCK (1953) 14 WACA 333, MANSON vs. HALLIBURTON ENERGY SERVICES LTD (2007) 2 NWLR (PT 1018) at 211, USMAN vs. BABA (2004) 48 WRN 47 at 68 and CBN vs. AHMED (2001) 28 WRN 38 were cited in support.
It was asserted that the Respondents’ claim is an abuse of Court process as there is not the slightest cause of action against the Appellants vide ELEKO vs. BADDELEY (1925) 5 NLR 65 at 68 and that the Respondents have no legal rights to vindicate as they are mere busybodies and meddlesome interlopers in estate matters. The action against the Appellants, it was maintained, was without substance, groundless, vexatious and brought mala fide. It was stated that based on the doctrine of in pari delicto, the Respondents who took upon themselves the office of administration of estate by intrusion cannot recover damages arising from their wrongdoing since they are in pari delicto.
It was opined that in considering the issue of jurisdiction or process of the Court being abused, resort is had to the facts deposed in the affidavit, the writ of summons and statement of claim filed. It was posited that Court is not confined to the pleadings, but may resort to extrinsic evidence by way of affidavit. It was stated that the depositions in the Appellants’ affidavit objecting to the jurisdiction of the Court were never challenged or controverted by the Respondents and are in consequence admitted as true. The case of MABAMIJE vs. OTTO (2016) 13 NWLR (PT. 1509) 171 at 192-193 was called in aid. The Court was conclusively urged to hold that the Respondents’ claim against the Appellants is an abuse of process being mala fide, frivolous, vexatious and oppressive.
RESOLUTION
I stated at the outset that the two issues distilled by the Appellants were intertwined and interwoven. Indeed, the Appellants submissions on the issues are so intimately and intricately related that the resolution of the one will be the resolution of the other. The Appellants contention is that the Respondents action is an abuse of Court process because it does not disclose the slightest cause of action since the Respondents are executors de son tort, in pari delicto and mere busybodies and interlopers. The converse of the Appellants contention will be that where there is a cause of action, then the action would not be an abuse of process. Let me hasten to state that the cause of action which the Respondents are ventilating at the lower Court is not whether or not they are administrators of the Estates of the Late Chief Babashola Rhodes, SAN and JFD Branco. No; the cause of action of the Respondents is for the alleged libel in the letter written by the Appellants. The Appellants, inter alia, in their Amended Statement of Defence raised the defence of truth and justification; so the fact of the Appellants not being administrators, if established by the evidence, would only go to afford a defence to the action for libel. It would not, before it is so established by the evidence, deprive the Respondents of their cause of action which is for libel.
It is hornbook law that where the defence of justification is set up in an action for defamation, it implies an admission that the publication was made, but that it is true. It is then for the defendant raising the defence of justification to prove the veracity of the publication. Where he is able do so then he cannot be liable in damages, since damages are awarded where the publication is false: OJUKWU VS. NNRUKA (1998) LPELR (5683) 1 at 24-25. Paucis verbis, the plea of justification, does not mean that the claimant in an action for libel does not have a cause of action. It simply means that if justification is proved then the action will not succeed.
I iterate that hub of the Appellants’ contention is that the Respondents do not have the slightest cause of action as a result of which their action is an abuse of process, frivolous, mala fide, vexatious and oppressive. What then is a cause of action on the basis of which a claimant can maintain an action against a defendant
The phrase ’cause of action’ has been variously defined in judicial decisions as the fact or combination of facts which give rise to a right to sue, which consists of the wrongful act of the defendant which gives the plaintiff the right to complain and the damage consequent due to the wrongful act. See EGBUE vs. ARAKA (1988) 3 NWLR (PT 84) 598 at 613, ECOBANK (NIG.) PLC vs. GATEWAY HOTELS LTD (1999) 11 NWLR (PT 627) 397 at 418, EGBE vs. ADEFARASIN (1987) 1 NWLR (PT 47) 1 at 20, AFOLAYAN vs. OGUNRINDE (1990) 1 NWLR (PT 127) 369 at 373 and SAVAGE vs. UWECHIA (1972) 1 All NLR (PT I) 251 at 257 or (1972) 3 SC 214 at 221. Cause of action is the factual basis or some factual situations a combination of which makes the matter in litigation an enforceable right or an actionable wrong. See IBRAHIM vs. OSIM (1988) 1 NNSC 1184 at 1194 (per Uwais, JSC as he then was) and TUKUR vs. GOVT OF GONGOLA STATE (1989) 4 NWLR (PT 117) 517 at 581.
In THOMAS vs. OLUFOSOYE (1986) 1 NWLR (PT. 18) 669 at 682, the Supreme Court (per Obaseki, JSC) adopted the dictum of Pearson, LJ in DRUMMOND-JACKSON vs. BRITISH MEDICAL ASSOCIATION (1970) 1 WLR 688 at 696 where the phrase ?reasonable cause of action? was defined thus:
No exact paraphrase can be given, but I think ‘reasonable cause of action’ means a cause of action with some chance of success, when?only the allegations in the pleadings are considered. If when those allegations are examined it is found that the alleged cause of action is certain to fail, the statement of claim should be struck-out.?
(Emphasis supplied)
In determining whether a cause of action is disclosed, the Court needs only to look at and examine the averments in the statement of claim. See AJAYI vs. MILITARY ADMINISTRATOR, ONDO STATE (1997) 5 NWLR (PT 503) 237, 7UP BOTTLING CO. LTD vs. ABIOLA [2001] 29 WRN 98 at 116 and OTUBU v OMOTAYO (1995) 6 NWLR (PT 400) 247.
The statement of claim must set out the legal right of the claimant and the obligation of the defendant. It must then go on to set out facts constituting infraction of the claimant?s legal right or failure of defendant to fulfil his obligation in such a way that if there is no proper defence, the claimant will succeed in the relief or remedy he seeks: THOMAS vs. OLUFOSOYE (supra), EGBE vs. ADEFARASIN (supra) and RINCO CONSTRUCTION CO. LTD vs. VEEPEE INDUSTRIES LIMITED (2005) 9 MJSC 197 at 204. It is sufficient for a Court to hold that a cause of action exists once the processes filed disclose some cause of action or some questions fit to be decided by a Judge, notwithstanding that the case is weak or not likely to succeed. The perceived weakness of the case and/or even the fact that the case is not likely to succeed are not sufficient reasons to stop a claimant from coming before the Court to determine the infraction of his civil rights and obligations arising from the transactions alleged in the action.
See ATIBA IYALAMU SAVINGS & LOANS LTD vs. SUBERU (2018) 13 NWLR (PT. 1637) 387 at 413 & 414. The proper course for the defendant to take is to wait and take advantage of the weakness, if any, of the case of the claimant when the action goes to trial. See IBRAHIM vs OSIM (supra) at 1198, A-G (FEDERATION) vs. A-G (ABIA) (2001) 40 WRN 1 at 52 and MOBIL PRODUCING NIGERIA UNLIMITED v LASEPA (2003) 1 MJSC 112 at 132. In the diacritical circumstances of the matter, the allegation of the Appellants that the Respondents are executors de son tort are matters they are to take advantage of at the trial to prove their defence of justification. It cannot be the basis on which to scuttle the Respondents’ action in limine. It has to be first established by the evidence at the plenary hearing to be availing.
It is important to emphasize that in an application alleging non-disclosure of a cause of action; it is the defect in the statement of claim itself that must be relied upon for its success. Any fact introduced aliunde or from an affidavit in support of the application cannot be relied upon. No evidence is admissible in an application seeking to strike out a case for non-disclosure of a cause of action. The application must accept the facts as averred, and the Court will determine the issue on the statement of claim alone.
See IBRAHIM vs. OSIM (supra) at 1197, SHELL BP PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD vs. ONASANYA (1976) 6 SC 89 at 94 and CHEVRON (NIG.) LIMITED vs. LONESTAR DRILLING (NIG.) LIMITED (2007) 16 NWLR (PT 1059) 168 at 179. The Appellants? contention that their unchallenged and uncontroverted affidavit in support of their application ought to have been relied upon by the lower Court does not represent the correct legal position in respect of an application for an action to be struck out for not disclosing a cause of action. The attack is on the statement of claim so it is the statement of claim that is examined to see if it discloses a cause of action: DANTATA vs. MOHAMMED (2000) LPELR (925) 1 at 27, OPIA vs. INEC (2014) LPELR (22185) 1 at 20 and ATIBA IYALAMU SAVINGS & LOANS LTD vs. SUBERU (supra) at 413.
It is beyond confutation that the averments in paragraphs 17-24 of the Amended Statement of Claim (see pages 3-6 of the Records) set out the legal rights of the Respondents and the obligation of the Appellants. It further sets out the facts constituting the alleged infraction of the Respondents’ legal rights.
The said averments, when taken alone, disclose some cause of action or some questions fit to be decided by a Judge, which would entitle the Respondents to judgment if the Appellants do not have a proper defence. Undoubtedly, the Respondents disclosed a cause of action in libel, whether it is weak, it will succeed or fail based on the defence of justification raised is an entirely different consideration which does not change the fact that a cause of action has been disclosed. The Respondents cannot be shut out in limine; they are entitled to have their day in Court.
In arriving at the conclusion that the Respondents action disclosed a cause of action and was not an abuse of process, the lower court reasoned and held as follows at page 60 of the Records:
It is inevitable but to agree with Claimants Counsel that all these factual allegations and assertions by the Defendants of Claimants in pari delicto wrongdoing and intermeddling with Estate Property and constituting themselves into executors de son tort are facts-in-issue Joined between the Parties on their pleadings which cannot be tested and resolved by way of Affidavit evidence. They are issues of fact which are in controversy and will need to be properly and evidentially established on the merits by the Defendants at plenary trial.
In the final analysis, all these factual allegation by the Defendants in reality constitute their defence of Justification against this present Claim for Libel against them and both parties will need to go into the witness box at plenary trial to discharge the competing evidential burdens that rest on their respective shoulders.
Accordingly, I hold that on the face of the Claimants pleading there is a prima-facie and/or arguable cause of action based on Libel in relation to the Defendants 5/7/2012 letter (supra) and the Defendants having Joined issues on their own pleadings relying inter-alia on Justification, there is really no merit to the Defendants Motion on Notice dated 30/10/2014 which seeks to dispose of at an interlocutory stage, on the platform of affidavit evidence, a dispute that can only be tested and evaluated in a fair and just manner at substantive plenary trial. The Defendants Motion on Notice dated 30/10/2014 is misconceived, lacking in merit and is Dismissed forthwith.?
The above pericope from the decision of the lower Court is sound and cannot be faulted. Having held that the Respondents’ Amended Statement of Claim discloses a cause of action based on libel, the Respondents claim is not an abuse of process. There is therefore no merit in the appeal. The appeal is dismissed and the decision of the lower Court, Coram Judice: Candide-Johnson, J. is affirmed. There shall be no order as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the concise Judgment prepared by my learned brother, Ugochukwu Anthony Ogakwu, J.C.A., which I had the advantage of reading in draft.
TOBI EBIOWEI , J.C.A.: I have read in draft the judgment of my learned brother, Ugochukwu Anthony Ogakwu, JCA just delivered. I agree and have nothing to add.
Appearances:
Kingsley Oduah Esq. with him, Joseph Elofuke, Esq.For Appellant(s)
Respondents absent and not represented by counsel For Respondent(s)
