NIGERIAN WESTMINISTER DREDGING AND MARINE LIMITED v. CHIEF TUNDE SMOOT & ANOR
(2011)LCN/4363(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of March, 2011
CA/B/191/2006
RATIO
LIBEL: WHETHER PROOF OF DAMAGES IS NECESSARY FOR AN ACTION IN LIBEL
The law is that libel is a actionable and proof of damages is unnecessary. The reason for the law on this point as it stands is not far fetched. Libel is a civil wrong and the law implies general damages once libel is proved, there is a presumption of damages. The primary aim of damages is to place the Plaintiff in as good a position as far as money can do it, as if the matter complained of had not occurred. See the case of ACCESS BANK PLC V. M.F.C.C.S. (2005) ALL FWLR PT. 251 at 305. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
DECISIONS OF COURT: WHETHER CASES CAN ONLY BE DECIDED BASED ON EVIDENCE BEFORE THE COURT
It is trite that cases must be decided only based on the evidence before the court and their peculiar facts and circumstances. This principle of law is most germane and appropriate in the adjudication of libel case. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
PUBLICATION: WHETHER THE ESSENTIAL MANDATORY REQUIREMENT OF PUBLICATION IN LIBEL CASES INCLUDES THAT A PERSON’S REPUTATION IS NOT THE GOOD OPINION HE HAS OF HIMSELF BUT IN THE ESTIMATION OF OTHER PEOPLE, OR A CLASS OF PEOPLE
In addition to the essential and mandatory requirement of publication in libel cases, it is also part and parcel of it that a person’s reputation is not the good opinion he has of himself but in the estimation of other people, or a class of people. It is the protection of that estimation that is the real subject and aim of the law. It is also not any estimation, be it emotional, biased, parochial, patronizing, sectional etc that is protected, but that estimation which has passed the test of reasonableness both in its content and the person holding the estimation. Without any doubt therefore, the determination of what constitutes publication is solely the decision of the Court having regards to the pleadings and the evidence adduced in support of same. See AFRICAN NESWPAPER V. CHIROMA (1996) 1 NWLR (PT.423) 156 at 163-164.PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
PLEADING: WHETHER PLEADINGS COULD CONSTITUTE EVIDENCE
It must be noted and emphasized that pleadings no matter how far reaching or elaborate do not constitute evidence. It is therefore wrong for any Court to treat averments in pleadings without more as evidence of matters stated therein. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
LIBEL: ESSENCE OF COMMUNICATION OF A LIBELOUS STATEMENT TO SOME OTHER PERSON IN PROOF OF PUBLICATION OF AN ALLEGED LIBELOUS STATEMENT
The law maintains that for the purpose of proof of publication of an alleged libelous statement, it is the communication of the libelous statement to some other persons that was relevant and crucial. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
BURDEN OF PROOF: WHETHER A PLAINTIFF IN A CIVIL LITIGATION CAN ONLY SUCCEED ON THE STRENGTH OF THE CASE HE WAS ABLE TO ESTABLISH BEFORE THE COURT AND NOT ON THE WEAKNESS OF THE DEFENCE AGAINST HIS CASE
It is axiomatic that in civil litigations a Plaintiff only succeeds on the strength of the case he was able to establish before the Court and not on the weakness of the defence against his case. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
LIBEL: WHETHER PUBLICATION IS THE ESSENTIAL INGREDIENT IN LIBEL CASES
Both the Supreme Court and this Court have remained steadfast and consistent that the publication in its technical sense is always an essential ingredient in libel cases. See AJAKAIYE V. OKANDEJI (1972) 1 SC 92, NSIRIM V. NSIRIM, ANATE V. SANUSI and GIWA V. AJAYI (1993) 5 NWLR (Pt.294) 423. The decision of the Supreme court in AJAKAIYE V. OKANDEJI (supra) is so succinct and terse and leaves no one in doubt as to its effect. The effect was re-echoed by Tobi, JCA (as then was) in GIWA V. AJAYI (supra) at 433 D-F. His Lordship said: – “One basic ingredient of defamation, whether it is libel or slander, is publication. In order to succeed, the Plaintiff must prove the fact of publication. In other words, the Plaintiff is under a burden to prove that the defamatory matter was published to a third party. And the law requires that the third party must not only be named but must also be clearly identifiable and identified.” With respect to the facts and circumstance in GIWA V. AJAYI (supra) this Court held that: – “In the instant case, there is no evidence as to whom the alleged defamatory matter was published. Since the Plaintiff did not lead evidence on this very important aspect this court is entitled to conclude that there was in law and in fact no publication of the alleged defamation. To me, that ends the matter.” In the instant appeal paragraphs 12, 13 and 14 of the 2nd Further Amended Statement of claim identified some of the persons to whom the alleged defamation was published but no such evidence was forthcoming from any of them. In UGBOMOR V. HADOMEH (1997) 9 NWLR (PT.520) 307, the decision in GIWA V. AJAYI was considered approved and applied after an analysis and overview of the averments in paragraphs 36 and 37 of the statement of claim there in. The Court held further as per Akpabio, JCA at page 321 H that: – “………the crucial matter in a case of libel or slander is publication, failure to properly plead and prove publication is fatal to the case and it is bound to collapse. This is because it is publication that gives such a case its cause of action.” PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
NIGERIAN WESTMINISTER DREDGING AND MARINE LIMITED Appellant(s)
AND
1. CHIEF TUNDE SMOOT
2. SMU-TUNS MARINE SERVICES (NIG.) LTD. Respondent(s)
ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Delta State High Court, Warri Division, delivered on 28th February, 2006 in Suit No. W/183/2004 per Onajite-Kuejubola, J.
In a 2nd Further Amended Statement of Claim dated and filed on 26th May, 2005, the Respondents, as the plaintiffs before the lower Court claimed for the following reliefs:-
1. A declaration that the petition of the plaintiff against the Defendant which contains the following:
a) “where it became obvious to Ramah Petroleum that we cannot without specific instructions from APC pay any money to them.
They sought the services of one chief Tunde smooth to raid our vessels any time they are traveling on the waterways. This, Chief Smooth accomplishes with the aid of militant Ijaw youths. Ramah petroleum has despite the refusal of A.P.C. to request us to pay, continued to put pressure on us through Chief Smooth and his gang of pirates” amounts to defamation of character.
2. A claim for the sum of N100,000,000.00 (One Hundred Million Naira) only from the Defendant as general damage.
3. A claim for the sum N57,000,000.00 (Fifty-Seven Million Naira) only as special damage. Break down of special damage.
Gross profit of the contract of hiring of Tug boat between SEIYA TRANSPORT (NIG.) LTD and the second Plaintiff for two years at N36,000,000.00 (Thirty-Six Million) per annual N72,000,000.00.
b) Anticipated Net Profit, after deduction of N15,000.000.00 as cost of salaries and maintenance, is N57,000,000.00 (Fifty-Seven Million).
In a Further Amended Statement of Defence dated and filed on 7th June, 2005 pursuant to the order of the Court made on 1st June, 2005, the Appellant, as the Defendant, denied the claims of the Plaintiffs/Respondents and called on the lower Court to dismiss same with substantial costs. To further add flesh and substance to their claim the Plaintiffs/Respondents filed a reply to the further amended statement of defence. Issues now having been duly joined in the pleadings, the matter went to trial on 23rd May, 2005.
At the trial, the 1st Plaintiff gave oral evidence on behalf of himself and the 2nd Plaintiff. Some documents were also tendered and admitted through the witness. At the end of his evidence in-chief the 1st Plaintiff was extensively cross-examined and later re-examined.
Also, in the course of the trial, the Defendant/Appellant called and relied on the oral evidence of one Mr. Ejiko Lee. At the end of the evidence of these 2 witnesses respective learned Counsel took turns to address the Court. After the addresses of Counsel the matter was adjourned for judgment.
In its judgment, the lower court observed, remarked and held thus: –
“The Plaintiff no doubt have given credible evidence for himself and on behalf of 2nd plaintiff, to establish defamation of its character by Defendant company upon a preponderance of evidence therefore, all ingredence of defamation have being successfully adduced by plaintiff, who led unshaken evidence and rebutted the defence of qualified privilege put up by defence, it cannot be over-emphasized that he is entitled to damages as sought in his claim- what measure of damages therefore are Plaintiff entitled to, having proved his character was defamed, and his company 2nd plaintiff was also defamed by defendant Company?
The law is that libel is a actionable and proof of damages is unnecessary. The reason for the law on this point as it stands is not far fetched. Libel is a civil wrong and the law implies general damages once libel is proved, there is a presumption of damages. The primary aim of damages is to place the Plaintiff in as good a position as far as money can do it, as if the matter complained of had not occurred. See the case of ACCESS BANK PLC V. M.F.C.C.S. (2005) ALL FWLR PT. 251 at 305. The Plaintiff led uncontradicted evidence of him, he is a well known learned man in the society. A traditional title holder in his community and more I award to the Plaintiff per the general damages sought, the sum of N90, Million Naira under the head of general damages and the entire sum of N72 Million Naira as gross profit for special damages and N57 Million as anticipated net profit, also under special damages against defendant Company in favour of 1st and 2nd Plaintiff.” (See Pages 91-92 record of appeal).
The Defendant/Appellant was dissatisfied with this judgment and appealed to this Court in a Notice of Appeal dated and filed on 16th May, 2006. I now-wish to reproduce the said grounds of appeal with all their particulars; thus: –
GROUNDS OF APPEAL
1. The learned trial Judge erred in law when she found the Defendant liable for libel on a petition written to the Commissioner of Police.
PARTICULARS
i. A complaint made in a petition to the police does not ground a cause of action in libel.
ii. The petition made no reference either directly or as an innuendo to the 2nd Plaintiff.
2. The learned trial Judge erred in law when she held that all the ingredients of defamation have been proved in this case.
PARTICULARS
i. There was no iota of evidence of publication before the learned trial Judge.
ii. A petition written to the Commissioner of Police and which was not copied to any other person cannot amount to publication in law.
3. The learned trial Judge erred in law when she failed to hold that the defence of qualified privilege was available to the Defendant.
PARTICUALRS
i. The cause of action is a petition from the Defendant to the Commissioner of Police.
ii. The Defendant has a duty in law to make the complaint in the petition to the Police.
iii. The Commissioner of Police to whom the petition was sent has a duty to receive same.
iv. The Plaintiffs did not discharge the onus of proving that the Defendant was actuated by malice.
4. The learned trial Judge erred in law when she awarded to the Plaintiffs the sum of N90, M (Ninety Million Naira) as General damages for the alleged libel.
PARTICULARS
i. The amount awarded is excessive and unreasonable in the circumstances of the case.
ii. The Court acted on wrong principles of law in the assessment of damages.
5. The learned trial Judge erred in law in awarding to the Plaintiffs the sum of N72. M (Seventy-Two Million Naira) as gross profit special damages.
PARTICULARS
i. This is an item of special damages that requires strict proof.
ii. No iota of evidence of any kind of damages caused and/or suffered by any of the Plaintiffs necessitating the award of such a huge sum as damages.
iii. No single evidence of loss of profit of any kind was given at the trial.
iv. The sum awarded is excessive and unreasonable.
6. The learned trial Judge erred in law when she awarded the sum of N57.M (Fifty-Seven Million
Naira) as “anticipated net profit” special damages when there is no such claim before the Court.
PARTICULARS
i. The court lacks the jurisdiction to award what is not claimed by the Plaintiff.
ii. The relevant Statement of Claim in this suit made no claim for any amount as special damages.
iii. The sum is excessive, unreasonable and based on wrong principle of law.
iv. No iota evidence on the claim for “anticipated net profit” special damages before the Court.
7. The learned trial Judge erred in law when she awarded the sums of N90.M, N72.M and N57.M
jointly to the Plaintiffs as general damages, gross profit damages and “anticipated net profit” special damages respectively.
PARTICULARS
i. A lump sum of N90.M as general damages to two Plaintiffs, each with different considerations in the award of damages is bad in law.
ii. The 1st Plaintiff did not claim for loss of profit, which the court jointly awarded in the sum of N72.M.
iii. A lump sum of N57.M as special damages to two Plaintiffs each with different legal considerations in the award of damages is bad in law.
8. The judgment is against the weight of evidence.
To argue the appeal, learned Counsel to the Appellant Mr. Ojo Abijogun filed a brief of argument dated 27th June, 2006.
With the leave of this Court, learned Counsel to the Respondents Chief Fedude Zimughan filed a brief of argument dated 4th January, 2007 which was deemed to have been properly filed and served on 20th March, 2007. Also, learned Counsel Mr. Abijogun filed a reply brief dated 13th April, 2010 but deemed to have been properly filed and served on 26th May, 2010.
In his brief of argument, learned Counsel Mr. Abijogun for the Appellant, formulated and argued the following 4 issues’ They are:-
1) Whether the learned trial Judge was right in finding that all the ingredients of defamation were proved in this case entitling the Respondents to the award of damages.
2) Whether the defence of qualified privilege does not avail the Appellant in the light of the circumstances of this case.
3) Whether the award of the sum of N90 Million as general damages to the Respondents is justifiable in the circumstances of this case-
4) Whether the awards of the sum of N72 Million “as gross profit for special damages” and another sum of N57 Million as “anticipated net profit” are justifiable in the circumstances of this case.
On his own part, learned Counsel Mr. Zimughan for the Respondents formulated 3 issues for the determination of this appeal.
They are: –
1) whether the learned trial Judge was right in entering Judgment in favour of the Respondents having regard to their claim and the evidence tendered at the trial?
This issue covers grounds 1 and 2 of the Appellant’s grounds of appeal.
2) Whether the learned trial Judge was right in holding as she did that the defence of qualified privilege did not avail the Appellant. This issue covers ground 3 of the Appellant’s ground of appeal.
3) Whether the learned trial Judge was right in awarding general damages to the Respondents in this case? This issue covers grounds 4, 5, 6 and 7 of the Appellant’s grounds of Appeal.
At the hearing of the appeal before us on 7th December, 2010, respective learned Counsel, without more adopted and relied on their respective briefs of argument. While learned Counsel Mr. Abijogun, on behalf of the Appellant urged the Court to allow the appeal, Mr. Zimughan, on behalf of the Respondents, urged on us to dismiss this appeal for being devoid of any merit.
Now, having regards to the facts and the entire circumstances of this appeal, the issues formulated by the appellant in my view appear to fully cover the grievance of the appellant as contained in the grounds of appeal. I will therefore proceed to consider the argument of respective learned Counsel on the 4 issues formulated by learned Counsel Mr. Abijogun.
In arguing the 1st issue he formulated, learned Counsel Mr. Abijogun set the ball rolling by trying to identify the ingredients of the tort of defamation. This, he did with reference to the decisions in ANATE V. SANUSI (2002) FWLR (PT.93) and SKETCH NEWSPAPER LTD V. AJAGBEMOKEFERI. According to learned Counsel, the Supreme Court has established that for a claim in an action for defamation to succeed it must be shown to the satisfaction of the Court that the defendant(s) published a false statement in a permanent form which referred to the Plaintiff. It must also be fully established that the statement as published conveyed a defamatory meaning to whom it was published. Learned Counsel also added that a statement could be defamatory of a Plaintiff if it lowered him in the estimation of right thinking members of the society or it exposed him to hatred, ridicule or contempt or where it injured his reputation in his office, made, profession or financial credit.
Against this background, learned Counsel underscored some basic facts as set out in paragraphs 8, 9, 10 and 11 of the 2nd further Amended Statement of Claim. He then referred to and reproduced them seriatim. Learned Counsel pointed out that the Defendant/Appellant admitted these facts but pleaded the defence of qualified privilege. While referring to the cases of SANUSI V. ANATE (supra) and ILOABACHIE V. ILOABACHIE (2005) ALL FWLR (PT.272) 223 at 252, learned Counsel explained that a person suing for libel can only succeed if he was able to prove all the ingredients set out above and it is only upon the full proof of all those elements that the issue of award of damages would arise.
While putting the judgment of the lower Court in proper perspective, more especially the award of N219 Million in damages, learned Counsel observed that the alleged libelous statement in paragraph 9 of the claim made no reference to the 2nd Respondent at all but the award of damages was made to include it. According to learned Counsel, to the extent that the alleged libelous words were not made concerning the 2nd Respondent, any award of damages in its favour was clearly made without jurisdiction. Still on this point, learned Counsel referred to and reproduced paragraph 11 of the 2nd further Statement of Claim and drew the attention of the Court to the ubiquitous and dominant presence of the words “first Plaintiff’ therein. Despite all this, learned Counsel maintained, the lower Court inspite of the pleadings and the evidence on it, still went ahead to hold that all the ingredients of defamation were proved and proceeded to award general and special damages to the tune of N219 Million.
He urged this Court to set aside the award. After all the arguments and submissions against all the positive findings and award in favour of the 2nd Respondent, Learned Counsel went to the next level and explained that publication of an alleged libelous material or statement is an essential ingredient or element that must be proved and an action for libel will fail if this publication is not proved. While referring to NSIRIM V. NSIRIM (1990) 5 SCNJ 174 at 183 lines 15-18, learned Counsel submitted that proof of publication must be given by admissible evidence as it is the publication of the alleged libelous statement that gives rise to the cause of action. He argued further that the name or names of persons to whom publication was made must be pleaded and proved. Upon this argument, learned Counsel submitted that Exhibits B1 and B2 relied on by the lower Court to sustain proof of libel do not constitute publication. He urged the Court to hold that there was no evidence of publication.
In what appeals to me to be his response on the issue of publication, learned Counsel Chief Zimughan for the Respondents referred to and reproduced paragraph 17 of the Amended Statement of Defence and its particulars as well as the oral evidence of DW1 in-chief and his answers under Cross examination, and maintained that the Appellant wrote and published Exhibit D to the Commissioner of Police. While making this as his yardstick or benchmark, Chief Zimughan contended that where the writing and publication of a defamatory matter is admitted or otherwise proved, it then becomes the duty of the Court to determine whether the words complained of are defamatory or capable of conveying a defamatory meaning. He referred to the OKAFOR v. IFEANYI & ORS (1979) NSCC 43 at 49 and LEWIS V. DIALY TELEGRAPH LTD (1964) AC 234 at 258 and argued that the words in Exhibit D in their ordinary and natural meaning are defamatory of the 1st respondent and the lower Court, according to learned Counsel, rightly so found. He argued further that it is evidence that Exhibit D directly referred to the 1st Respondent as a pirate and this without more was defamatory and actionable. He then maintained that the learned trial Judge was right in entering judgment for the Respondents based on the evidence before him. He urged this Court to resolve this issue against the appellant.
Before going further, I wish to at this stage tackle and resolve an issue that appears to have now been settled and conceded based on the submissions and arguments of respective learned Counsel. This is the issue of the judgment of the lower Court being concerned with the 2nd Respondent herein. Learned Counsel Mr. Abijogun vigorously argued and made very far reaching and cogent submissions against the judgment of the lower Court being made to extend to and favour the 2nd Respondent.
Based on the cardinal principle of adjudication in civil matters that parties are absolutely bound by their pleadings and also that no party will be allowed to adduce evidence on an unpleaded fact or assertion, I wish to point out that the 2nd Further Amended Statement of Claim has remained very haphazard as far as the 2nd Plaintiff/2nd Respondent was concerned. There also appears to be a palpable confusion in the mind of the person who drafted the paragraphs of this claim. For example, paragraph 2 introduced the 2nd Respondent thereafter paragraph 4 referred to Plaintiffs in the plural and also some involvement of the 2nd Plaintiff (2nd Respondent) or its workers being involved in the events that led to this cause of action (paragraphs 5 and 7) but from then on it remained only the 1st Plaintiff (1st Respondent) being involved as the sole person in all the other subsequent events despite the continued use of the word “Plaintiffs”. For example paragraph 11 made reference to “Plaintiffs” but ended up only showing that the complaint was only meant to be for the 1st Plaintiff.
Also, in the entire evidence adduced on behalf of the Respondents it was only the certificate of incorporation of the 2nd Respondent that was identified, tendered and admitted in evidence (Exh. A) but thereafter every reference to events and their effects were with respect to the first person singular, rather than 1st person plural to indicate the involvement of more than one entity.
Having been faced with this state of pleadings and evidence, it remained very perplexing and a total misconception for the learned trial Judge to find as she did that the 1st Respondent had proved before her that his character was defamed and his Company, the 2nd Plaintiff was also defamed. Towards the end of the judgment at page 92 of the record of appeal the learned trial Judge fell into a serious error she decided –
“The Plaintiff led uncontradicted evidence of him, he is a well known learned man in the society. A traditional title holder in his Community (sic) and more I award to the Plaintiff per the general damages sought, the sum of N90 Million Naira under the heard (sic) of general damages and the entire sum of N72 Million Naira as loss of profit for special damages and N57 Million as anticipated net profit also under special damages against defendant Company in favour of 1st and 2nd Plaintiff (sic)”.
This is manifestly a total misconception of the facts and the law. I therefore hold that there were no adequate pleadings and evidence to warrant any significant or far reaching findings and/or award of damages in favour of the 2nd Respondent.
I have also carefully considered all the argument and submissions of respective learned Counsel on the issue of publication and its effect in an action for libel. I have further taken into account the pleadings and evidence led in support of by the respective witnesses as well as the various decided cases referred to by learned Counsel. In the course of this, I found that the averments in paragraphs 8,9, 10, 11, 12, 13,14 and 15 of the 2nd Further Amended Statement of Claim to be relevant as well as paragraphs 3, 6,7,8,9, 10, 11, 12, 13, 14, 15, 16 and 17 of the Further Amended Statement of Defence. For clarity and ease of reference, I hereby reproduce the said paragraphs.
2ND FURTHER AMENDED STATEMENT OF CLAIM
8) That surprisingly, the first Plaintiff was invited by the Delta State Police Command, Asaba, Force Quarter in a letter dated 8th of June, 2000 issued by Inspector Nnamdi Aligbo of the criminal Investigation Department, Asaba, Delta State on allegation of sea piracy alleged by the Defendant.
The said letter is hereby pleaded and the Plaintiff shall rely on it at the hearing of this suit.
9) That the first Plaintiff further avers that Inspector Nnamdi Aligbo showed him a copy of the petition which content is as following:-
“where it became obvious to Ramah Petroleum that we cannot without specific instructions from APC pay any money to them, they sought the services of one Tunde Smooth to raid our vessels any time they are traveling on the waterways. This Chief Smooth accomplishes with the aid of militant Ijaw youths. Ramah Petroleum has despite the refusal of A.P.C. to request us to pay, continued to put pressure on us through Chief Smooth and his gang of pirates.”
That these words described the Plaintiffs as pirates.
The petition is hereby pleaded and the Plaintiffs shall rely on it at the hearing of this suit.
10) That a copy of the petition is in the custody of the Defendant and the Nigerian Police Command, Asaba, Delta State. NOTICE IS HEREBY SERVED on the defendant to produce the petition.
11) That the Plaintiffs understood the contents of the petition of the Defendant to mean:
a) That the first Plaintiff is the head of a militant Ijaw youths.
b) The first Plaintiff incessantly raided the Defendant with the aid of his militant group.
c) The first Plaintiff is a sea pirate.
d) The first Plaintiff with his gang of sea pirate raided the Defendant on the high sea.
12) That this imputation of crime from the Defendant has reduced the Plaintiff to the status of criminals in the yes of the general Public.
13) That the first Plaintiff being a respected traditional Chief of two kingdoms in Ijaw land, wit: the prime minister of Obotiebe kingdom in Burutu L.G.A., and the Ebiduwei of Ogbe-Ijoh kingdom in Warri South-West L.G.A. and also patron of Warri Club, Road Safety Club suffered great humiliation and relegation from the kings of the above mentioned kingdoms when rumour made the round that he was invited by the C.I.D. Asaba on allegation of sea piracy.
14) That the first Plaintiff further avers that the king of Obotiebe kingdom wrote a letter dated 17th of June, 2000 asking him to clarify the sea piracy allegation that was making the round, failure in which the king threatened to strip him off, of the chieftaincy title. The said letter is hereby pleaded and the Plaintiff shall rely on it at the hearing of this suit.
15) That the petition has also exposed the Plaintiffs to hatred and contempt as some of his business associates were no longer willing to do business with the Plaintiffs.
FURTHER AMENDED STATEMENT OF DEFENCE
3) The Defendant denies paragraphs 1, 2, 4, 5, 6, 7, 8, 9,10, 11, 12, 13, 14, 15, 16, 17 and 18 of the 2nd Amended statement of claim and the Plaintiffs are put to the strictest proof of all the averments therein.
6) In specific response to the said paragraphs’ the Defendant avers that sometime in 1999 when the River Niger Dredging project was about to take off, the Defendant and another company called Ramah Petroleum & Marine Limited were separately contracted by a major consultant of the project, Afri Project consortium (APC) to carry out survey services at the preparatory stage of the project.
7) As a result of the above, APC paid some money to the defendant up-front towards the execution of the Defendant’s own Part of the job.
8) The project was subsequently put on hold as a result of the Environmental Impact Assessment (EIA) report which some of the stakeholders in the project insisted upon.
9) While the Defendant was waiting for the issue to be resolved before continuing with the job, the Defendant received a plea from APC to pay on their behalf the sum of N6,107,447.93 to Ramah Petroleum & Marine Limited for services allegedly rendered to APC. The Defendant shall rely on APC’s letter of 18th July, 2000 ref. APC/PTF/NIWP/GEN/EI/0299 on this issue.
10) That as the Defendant still had part of APC’s money paid up-front, the plea was granted and the said sum was paid to Ramah petroleum & Marine Limited.
11) The Defendant avers that subsequently, Ramah Petroleum & Marine Limited requested the defendant to pay another sum of N9,989, 892.45 being the sum in an Invoice submitted to Ramah Petroleum & Marine Limited by smu-Tuns Transport Company Nigeria Limited and/or Smu-Tuns Marine Services Nigeria Limited (both companies are owned by the 1st plaintiff. The Defendant pleads and shall rely on a photocopy of the said Invoice No. 1432 of 18-02-2000.
12) The Defendant refused to pay the sum and made it clear to Ramah Petroleum & Marine Limited that the fact that the Defendant obliged APC the first payment does not make the Defendant responsible for all APC’s bills. This is more so when APC made it clear to the Defendant that the claim (N9,989 ,892.45) was unauthorized and unsubstantiated. The Defendant shall rely on APC’s letter of 18th July, 1999 and 6th April, 2000 ref. APC/PTF/WT01C/0100.
13) The Defendant avers that the sum in question belongs to the 1st Plaintiffs Company.
14) The Defendant avers that when it became obvious to Ramah Petroleum & Marine Limited that the Defendant would not pay the sum demanded without specific instructions from APC to that effect, her officials with the aid of the 1st Plaintiff raided repeatedly the Defendant’s vessels with the aid of some militant Ijaw youths. Sometimes they would block the waterways and ensure that the Defendant’s vessels do not sail to meet her contractual obligations to other clients.
15) The Defendant aver that all efforts to resolve the matter with the 1st Plaintiff failed as even the SSS summoned the 1st Plaintiff, the Defendant and others interested in the matter could not persuade the 1st Plaintiff to leave the Defendant out of the matter. The Defendant may lead evidence on all the meetings/efforts made with the Plaintiff.
16) The Defendant avers that at all times material, the events in the Niger Delta, particularly Warri and its environs, created a near lawless situation where militant youths harass, blocked waterways, extort money, seized equipments and sometimes personnel of companies operating in the area.
17)That in response to paragraphs 7, 8 and 9 of the 2nd Amended Statement of claim which are denied’ the Defendant avers as follows:
i. Admits that she wrote a letter to the Commissioner of Police, Delta State and to no one else.
ii. The Defendant shall contend that the said letter was published only to the said commissioner and on an occasion of qualified privilege.
PARTICULARS
a) Before the said letter, the events narrated in paragraphs 6 to 16 above existed.
b) That there from, it became the duty of the Defendant to write the said letter to seek for protection of the Police. The said letter contains the words complained about in this suit.
c) The said written under sense of duty and without malice towards the Plaintiffs and in honest belief that the statement made therein which the Plaintiffs complained about was true.
d) In the premises the Defendant was under a duty to publish to the commissioner of Police who has a duty to receive such complaints.
The following was recorded as the evidence of the plaintiffs/Respondents in support of the Pleadings and claim in the 2nd Further Amended Statement of Claim. It goes thus in part: –
“The defendant wrote a petition to Police against me. The copy I have is a certified True copy, the original copy is with the Police (Exh.D).
As a J.P. and I was called a sea-pirate, the public took me as a pirate, and my clients. I didn’t secure militant Ijaw youths to raid defendant, it’s a lie that I was quoted by S.S.S. blue (sic) to the raid on defendant, it’s a lie that I forced defendant to write the letter of apology…… As a J.P., a learned man in Delta state, I sue (sic) defendant for compensation of N100,000,000.00 (One Hundred Million Naira (sic) as damages N57,000,000.00 for special damages.”
(See page 67 of record of appeal).
Also during cross-examination, the 1st Respondent as PW1 at the lower Court was put on record to have said thus:-
“I was called upon (sic) so I explained and they said they should settle with me, he being a troublesome man, i.e. the money involved be paid to me.
Exhibit B invitation from police commissioner (sic) office, I honourd (sic) it.
The C.P. advised (sic) defendant to go and pay me. The defendant agreed to pay me……after being advised (sic) to pay me by the state (sic) government. I didn’t report were (sic) my vessel was attacked because it was a community problem. Otherwise, I would have reported to the police and mentioned men as a good citizen.” (underlining mine for emphasis).
(See pages 67 to 68 of record of appeal).
In his evidence in-Chief DW1 for the Defendant/Appellant said:
“Between 199-2003, I worked with Defendant. That was crisis period, which called for kidnapping attacks, work stoppage (sic). The youth invaded vessels to stop jobs. It also affected defendant. The Sum-Tuns Marine services Company Ltd is for Plaintiff: chief Tunde smooth, M.D. of Sum-Tuns Nig. Ijaw man, could use Ijaw boys to get his money, so defendant wrote a letter to the C of Police (sic). ….Exh. D, identified to my knowledge no other person was written to or copied. Defendant is not being law enforcement agent, the defendant had to write to them”‘
(See pages 69 to 70 of record of appeal).
During Cross-examination, DW1 told the Court further that: –
“A petition was written to the Commissioner of Police, where Chief T. Smooth was called leader of gangs of sea
pirate. sea Pirate (sic) are robbers, like armed robbers on land.”
(See page 70 of record of appeal).
The record of appeal was very badly compiled. Also, both the recording of evidence and the of the judgment of the lower Court posed very serious challenge to me in terms of style, elegance and presentation. I only managed to do the best that was possible under the circumstance.
It is trite that cases must be decided only based on the evidence before the court and their peculiar facts and circumstances. This principle of law is most germane and appropriate in the adjudication of libel case. From the above quoted part of the evidence before the lower court, it appears that the writing of Exh. D was quite a normal exercise required of any good citizen. It also highlights the state of insecurity in the Niger Delta Region of this Country. In the absence of any guidance to the contrary, I would adopt the principles laid down by this Court in the case of ANATE V. SANUSI (supra) as urged upon by learned Counsel Mr. Abijogun. There is no doubt that publication of an alleged defamatory libelous material is at the heart of an action of this nature. All the decided cases referred to by respective learned Counsel on the point have remained settled that “publication” in libel cases bears a special technical meaning; and is meant the making known of the alleged libelous statement to some persons other than the person to whom it was written. For example in NSIRIM V. NSIRIM (supra) the Supreme Court held that in order to succeed in an action for libel, a Plaintiff must prove that the libelous material has been published by same having been communicated to some persons other than the Plaintiff himself. It is therefore either a total misconception or naivety for learned Counsel to the Respondents to submit as he did that publication in the con of libel merely means the writing of an alleged libelous material.
It is beyond speculation or peradventure that only 2 witnesses testified in the course of the trial of this matter.
In addition to the essential and mandatory requirement of publication in libel cases, it is also part and parcel of it that a person’s reputation is not the good opinion he has of himself but in the estimation of other people, or a class of people. It is the protection of that estimation that is the real subject and aim of the law. It is also not any estimation, be it emotional, biased, parochial, patronizing, sectional etc that is protected, but that estimation which has passed the test of reasonableness both in its content and the person holding the estimation. Without any doubt therefore, the determination of what constitutes publication is solely the decision of the Court having regards to the pleadings and the evidence adduced in support of same. See AFRICAN NESWPAPER V. CHIROMA (1996) 1 NWLR (PT.423) 156 at 163-164.
It must be noted and emphasized that pleadings no matter how far reaching or elaborate do not constitute evidence. It is therefore wrong for any Court to treat averments in pleadings without more as evidence of matters stated therein. A very careful consideration and analysis of the facts in paragraphs 11, 12, 13, 14 and 15 of the 2nd Further Amended Statement of Claim, as set out hereinabove will indicate that the 1st Respondent was reporting the feelings and attitude among other things of other persons towards him after the people began to hear that a petition was made against him to the Police alleging that he and some Ijaw youths were engaged in sea piracy.
The opening words in paragraph 11(supra) are thus: –
“That the Plaintiffs understood the contents of the petition to the defendant to mean:-”
While this paragraph refers to the estimation of the 1st Plaintiff of himself paragraph 12 refers to the estimation of the 1st Plaintiff in the eyes of members of the public. In an attempt to breakdown the issues further, the 1st Respondent referred to the estimation of particular persons in paragraphs 13 and 14.
The law maintains that for the purpose of proof of publication of an alleged libelous statement, it is the communication of the libelous statement to some other persons that was relevant and crucial. The 1st Respondent testified on his behalf and did not call any other person or persons to give evidence of their being aware of the existence of the alleged libelous statement and what opinion they formed of the 1st Respondent after they became aware of such statement. The failure of the 1st Respondent to call and rely on the oral evidence of any or such that could be identified of the persons set out in the statement of claim places this case in a very dangerous and precarious course.
It is axiomatic that in civil litigations a Plaintiff only succeeds on the strength of the case he was able to establish before the Court and not on the weakness of the defence against his case. Both the Supreme Court and this Court have remained steadfast and consistent that the publication in its technical sense is always an essential ingredient in libel cases. See AJAKAIYE V. OKANDEJI (1972) 1 SC 92, NSIRIM V. NSIRIM, ANATE V. SANUSI and GIWA V. AJAYI (1993) 5 NWLR (Pt.294) 423.
The decision of the Supreme court in AJAKAIYE V. OKANDEJI (supra) is so succinct and terse and leaves no one in doubt as to its effect. The effect was re-echoed by Tobi, JCA (as then was) in GIWA V. AJAYI (supra) at 433 D-F. His Lordship said: –
“One basic ingredient of defamation, whether it is libel or slander, is publication. In order to succeed, the Plaintiff must prove the fact of publication. In other words, the Plaintiff is under a burden to prove that the defamatory matter was published to a third party. And the law requires that the third party must not only be named but must also be clearly identifiable and identified.”
With respect to the facts and circumstance in GIWA V. AJAYI (supra) this Court held that: –
“In the instant case, there is no evidence as to whom the alleged defamatory matter was published. Since the Plaintiff did not lead evidence on this very important aspect this court is entitled to conclude that there was in law and in fact no publication of the alleged defamation. To me, that ends the matter.”
In the instant appeal paragraphs 12, 13 and 14 of the 2nd Further Amended Statement of claim identified some of the persons to whom the alleged defamation was published but no such evidence was forthcoming from any of them. In UGBOMOR V. HADOMEH (1997) 9 NWLR (PT.520) 307, the decision in GIWA V. AJAYI was considered approved and applied after an analysis and overview of the averments in paragraphs 36 and 37 of the statement of claim there in. The Court held further as per Akpabio, JCA at page 321 H that: –
“………the crucial matter in a case of libel or slander is publication, failure to properly plead and prove publication is fatal to the case and it is bound to collapse. This is because it is publication that gives such a case its cause of action.”
In view of the total failure of the Respondents to call evidence from any of the persons identified or identifiable in and from the statement of claim. I am of the firm view that there was no publication of the alleged defamatory words contained in Exhibit D. I agree with learned Counsel Mr. Abijogun that it was erroneous for the learned trial Judge to make a finding on publication upon the reading of Exhibit B1 and B2. There is no iota of evidence to justify or sustain a finding to anchor publication in its technical meaning. Upon this, I am unable to find any reasons to agree with the learned trial Judge that there is any merit in this matter. In the absence of publication of alleged libelous words or statement an essential ingredient is totally lacking to constitute an actionable tort of libel in the circumstances of this matter. Without any hesitations or reservations at all issue one as formulated by the appellant is hereby resolved against the Respondents.
Having resolved issue one in favour of the Appellant renders this action liable to being dismissed without much ado.
In the circumstance, there is therefore no further need to consider, decide and pronounce on the remaining issues formulated by the Appellant as the decision on issue one has sufficiently determined this appeal.
Appeal is therefore hereby allowed. The judgment of Kuejubola, J. delivered on 28th February, 2006 in Suit No. W/183/2004 is hereby set aside. The award of damages under the various heads is also set aside and Suit No. W/183/2004 is dismissed. I order for N30,000.00 costs against the 1st Respondent in favour of Appellant.
OYEBISI FOLAYEMI OMOLEYE, (J.C.A) I have read in draft, the leading judgment delivered by my learned brother, A.A.B. Gumel J.C.A. I agree with his line of reasoning and the conclusion that this appeal is devoid of merit and should be dismissed.
Upon perusal of the printed record of appeal, I fail to see any concrete assertions in the pleadings and the evidence adduced in proof of same, to link the 2nd Respondent with the allegations leveled against the Appellant. There was no contest between the 2nd Respondent and the Appellant. Therefore, I hold the view that, the findings by the leaned trial Judge in favour of the 2nd Respondent being without justification, was erroneous and perverse.
By virtue of Section 135 (1) of the Evidence Act, whoever desires any court to give judgment as to a legal right or liability must assert facts upon which same are hinged and prove that those facts exist. See the cases of-
1. OSUJI V. EKEOCHA (2009) 52 WRN P. 1; 2. MINI LODGE LTD. V. NGEI (2010) 10 WRN P. 58;
3. BUNGE V. GOV. RIVERS STATE (2006) 6 SC P.81 and
4. JONASON TRIANGLES LTD. V. C. M. & P. LTD. (2002) 15 NWLR (Pt. 789) P.194.
Importantly, the main issue for resolution in this appeal is, whether upon the state of the Respondents’ statement of claim and the evidence adduced by them, the necessary ingredients of libel were established to justify the declaration that the Respondents’ suit was successful, by the trial Court. In the case of: UNION BANK OF NIGERIA LTD. V. OREDEIN (1992) 6 NWLR (Pt. 247) P. 355, Tobi JCA (as he then was) listed the essential ingredients of the tort of defamation and libel which a plaintiff must prove in order to succeed in his claim. These requirements are that, the publication was in writing, that, it was false, that, it was defamatory of the plaintiff, that, it was published to a third party and that, it was the defendant who published the defamatory words.
In the instant matter, the main grouse of the Respondents is that, exhibit D 1, the alleged defamatory words complained of were published to some third parties, other than the Respondents themselves. It is well settled that, no civil action for libel is maintainable unless the words complained of have been published. Hence, the material part of the cause of action in libel is not writing per se, but the publication. In order to constitute publication, the defamatory matter must be published to a third party and not merely to the plaintiff himself. Publication is the making known of the defamatory matter, after it had been written by the defendant, to a third party other than the plaintiff. See the cases of:
1. EJABULOR V. OSHA (1990) 5 NWLR (Pt.148) p.20 and
2. YAHAYA V. MUNCHIKA (2000) 7 NWLR (Pt. 664) P. 300.
Hence, to merely plead and testify that exhibit D 1 was published to some persons, is certainly not enough. In the instant matter, not one of the persons was called by the Respondents to testify that the content of exhibit D 1 was read by him/her.
In the case of: OJO v. RASAKI (2010) 7 WRN p. 117 at pgs. 141-142, lines 45 – 10, Denton – west, JCA had the following to say, that:
…the law is clear and settled that pleading is not synonymous with evidence and so cannot be considered as such in the determination of the merit of otherwise of a case. A party who seeks judgment in his favour is required by law to produce adequate credible evidence in support of his pleadings, and where there is none then the averments in the pleadings are deemed abandoned.
on the pleadings and the evidence on record, I vehemently disagree with the learned trial Judge that the Respondents had succeeded in proving that the contents of the alleged defamatory material, exhibit D1, was published to any other person other than, in particular, the 1st Respondent himself. The Appellant has demonstrated to this Court how the findings by the trial Court can be said, to be, altogether perverse, to warrant the intervention of this Court. In the circumstance, the findings must be disturbed by this Court. See the cases of :
1. WOLUCHEM V. GUDI (2004) 2 WRN p.20;
2. THOMPSON V. AROWOLO (2003) 24 WRN p.1 and
3. BALOGUN V. AGBOOLA (1994) 1 All NLR (Pt.2) p. 66
In conclusion, I too find no merit in this appeal, which I accordingly dismiss. I equally endorse all the orders in the leading judgment, including that for costs.
CHIOMA EGONDU NWOSU-IHEME, (Ph.D) (J.C.A): I have read the Judgment just delivered by my learned brother, ALI ABUBAKAR BABANDI GUMEL, J.C.A. I am in complete agreement with his conclusion that the appeal be allowed. I will however add a few words.
paragraphs 12 14 of the 2nd Further Amended Statement of Claim specifically identified persons whom the defamation was allegedly published. It is pertinent to note that none of those people gave evidence of such publication to them before the trial court.
The failure to prove publication regrettably affected the appeal adversely. This fatal consequence is bound to be disastrous for the Appellant. Publication is the whole essence in a case of libel.
In the absence of publication therefore, the entire essence of libel crumbles.
There was therefore no reason or justification to award damages under the various heads as ordered by the learned trial Judge without proof of publication.
The Judgment is set aside as well as the award of damages. I also order N30, 000.00 costs to the Appellant.
Appearances
Mr. Ojo AbijogunFor Appellant
AND
Chief Fedude Zimughan (with him Mr. A.Y. Abdullahi)For Respondent
