SKYE BANK PLC V CHIEF MOSES BOLANLE AKINPELU
(2010) LCN/4020(SC)
In the Supreme Court of Nigeria
Friday, March 5, 2010
Case Number:SC. 38/2003
RATIO
“To succeed in an action of libel the plaintiff must prove 3 fundamental elements of defamation constructively:
1. that there is the publication of the material complained of by the defendant;
2. That the publication refers to no other person but the plaintiff conclusively;
3. That the publication is defamatory of the plaintiff”. Per OGEBE JSC
REQUIRED PLEADINGS IN LIBEL
“The primary requirement in a claim of libel is that the plaintiff must plead the alleged libel and the precise words of libel alleged, and thereafter tender it in evidence.” Per MUKHTAR JSC
JUSTICES:
NIKI TOBI MUKHTAR , JUSTICE, SUPREME COURT
ALOMA MARIAM, JUSTICE, SUPREME COURT
IKECHI FRANCIS OGBUAGU , JUSTICE, SUPREME COURT
JAMES OGENYI OGEBE , JUSTICE, SUPREME COURT
JOHN AFOLABI FABIYI , JUSTICE, SUPREME COURT
APPELLANTS
SKYE BANK PLC
ALHAJI A. L. AJIBOLA
RESPONDENTS:
CHIEF MOSES BOLANLE AKINPELU
J.O. OGEBE J.S.C. (Delivering the Judgment by the Court):
The respondent who was the plaintiff at the High Court sued the appellants as the defendants before the High Court of Justice Ibadan on the 31st of July 1999 seeking the following reliefs:
1. The Plaintiffs claim is for perpetual injunction restraining the Defendants by themselves or their Agents, Servants and Privies or otherwise howsoever from taking any steps or further steps towards or in pursuance of the decision by the 1st Defendant, through the 2nd Defendant or anybody whatsoever to sell the Plaintiffs property situate, lying and being at Ijebu-Ode/lbadan Motor Road, Ibadan in Oluyole Local Government Area, Ibadan in Oyo State of Nigeria and as described in the Lands Registry a $ Instrument No. 56 at page 56 in Volume 434 and Certificate of Occupancy Registered as Instrument No.1 at page 1 in Volume 2974 in the Lands Registry in the Office at Ibadan in satisfaction on the mortgage aliegedly taken by one Mr. S. A. Oshinowo who does not own the property.
2. Declaration that the purported threat by the 1st Defendant through the 2nd Defendant to sell the property on or about 5/9/91 in consequence of the Auction Notice dated 6/7/91 pasted on the property by the 2nd Defendant is null, void, illegal and of no effect as the property belongs to the Plaintiff and not Mr. S. A. Oshinowo.
3. Damages of N20,000 for trespass committed on the Plaintiffs land by the Defendants.
4. Damages of N1 00,000 for defamation of character resulting from the action of the Defendants who presented the Plaintiff to the public as a debtor and thereby cause him embarrassment whereby he sustains disaffection and spite by well meaning members of the public.’
The case of the respondent at the trial court was that the appellants pasted an Auction Notice on his property when he was in no way indebted to the 1st appellant. It was his contention that the action of the appellant amounted not only to trespass but also to defamation of his character. He gave evidence on his own behalf and called a witness, Ayodele Akinbiyi who gave evidence that he saw the Auction Notice which did not have the name of the respondent but had the name of one Oshinowo as the debtor.
He said that as a result of the notice he avoided contact with the respondent. The 1st appellant gave evidence through the 2nd appellant that they mistakenly pasted the Auction Notice on the property in question.
The learned trial Judge in his judgment found as a fact that the respondent was not in possession of the property in question at the time the Auction Notice was pasted but one M r Adeyeri who had bought the property. He therefore dismissed the claim for trespass. He however found the libel proved and awarded N20, 000 damages against the appellants in favour of the respondent. He also made an order of perpetual injunction restraining the appellants from future violation of the respondents rights to the property and publication of offensive material. The appellants were dissatisfied with the judgment and appealed to the Court of Appeal, Ibadan Division which granted the appellants leave to argue the appeal on their brief alone as the respondent failed to file a brief. The Court of Appeal dismissed their appeal on the 23rd May 2002. The appellants still dissatisfied further appealed to this Court and the learned counsel for them filed an amended brief and identified 4 issues for determination as follows:
i. Whether the lower court was right in holding that the respondent was still the owner who was presumed to be in possession of the uncompleted building on which the alleged Auction Notice was pasted after admitting during the trial that he had sold it to one Mr. Olu Adeyeri. (Covers grounds 1 & 3).
ii. Whether the lower court was right in holding that the Respondent was entitled to both damages for trespass and injunction after the dismissal of the claim for trespass by the trial court. (Covers ground 2.)
iii Whether the lower court was right in holding that the appellants did not proffer arguments on submissions on issues No.1 and 2(sic) formulated for determination And therefore deemed same abandoned. (covers ground 6)
iv. Having regard to the pleadings, the evidence led in support and documents tendered from the record, whether or not the lower court was right in dismissing the appellants (sic) appeal’ The learned counsel for the respondent filed a brief in which he adopted the issues formulated by the appellants. The appellants filed a reply brief.
On the first issue the learned counsel for the appellants submitted that the respondent pleaded that he had sold the property in question and given possession to one Mr. Adeyeri when the offensive Auction Notice was pasted on the land. It was on that basis that the trial court dismissed the claim for trespass. He argued that the Court of Appeal was wrong to hold that the respondent was still in actual or physical possession of the property since the process of transfer to Mr Adeyeri had not been completed. He accused the lower court of making a case of its own outside the evidence on record, and relied on the .case of Adeniji V Adeniji (1972) 4 SC 10 in which Udo Udoma JSC at page 17 said: ‘It will not be competent for the court to make a case of its own or to formulate its own case from the evidence before it and thereafter to proceed to give a decision based upon its own postulate quite contrary to the case of the parties before him’.
In reply to this issue the learned counsel for the respondent submitted that the trial Judge found as a fact that the respondent was still the owner of the house at the time the offensive Auction Notice was pasted. The appellant did not appeal against this finding of fact, which in his submission still stands as affirmed by the Court of Appeal. He submitted that there is nothing perverse in this finding. This issue turns entirely on pleadings and evidence. All parties and the courts are bound by the pleadings and evidence. See Iheanacho V. Chigere (2004) 17 NWLR (pt. 901) 130 and Akanni V.Odejide(2004) 9 NWLR (pt. 879) 575. The respondents case in the court of first instance is primarily for trespass.
In paragraph 15 of the Statement of Claim the respondent averred as follows: ‘That the plot and the development thereon was eventually sold to one Mr. Isaac Adeyeri of S7/467C Felele Rab Challenge, Ibadan.’
In his evidence at page 38 lines 8 and 9 of the printed record the respondent said:
‘I resolved to dispose it, I did dispose it to Mr. Adeyeri of Exid Battery’ Under cross-examination, he stated as follows:
‘I gave Mr. Adeyeri copies of Exhibits A and A1 in the course of the search he conducted in the Ministry that he paid me N55,000.00. I thereafter took him to the land. I gave him possession. He then instructed a gardener to clear the land. It was while he was in possession that the offensive notice was pasted on the land.’
His evidence tallied with the pleadings that he had disposed of the property. Since he had disposed of the property what was the basis of his action for trespass or any other relief? The trial court rightly dismissed the respondents claim for trespass based on his pleadings and evidence; and the Court of Appeal was wrong in holding that the respondent was still the owner of the property in question and was in constructive possession thereof.
This is no more as the respondent did not cross-appeal to challenge the finding of the trial court that he was not in possession of the land. Further more as that was not the case made out before the trial court; it was not the duty of the lower court to make out its own case outside the evidence and pleadings of the parties. See the cases of Adeniji V Adeniji(1972) 4 SC 10; Dipcharima V Alii (1974) 1 SC 45; Overseas Construction Company Limited V Greek Nigeria Limited & Another (1985) 3 NWLR Pi. 13, 407. I resolve this issue in favour of the appellants. On the 2nd issue, the learned counsel for the appellants submitted that since the trial court dismissed the claim for trespass and the evidence showed that the respondent had disposed of the property in dispute, there was no basis for the order of injunction.
He relied on the case of Udo V Obot (1989) 1 SC 64. I agree with this submission since the respondent with his own mouth said he had disposed of the property in question, there was no justification for granting any order of injunction in his favour. See Nwosu V Otunola (1974) 4. SC 21; Ajuwa V Odili (1985) 2 NWLR Pt. 9, 710. On the 3rd issue, regarding the failure of the lower court to consider issues 1 & 2 in their brief, I am of the view that the issue is now academic having regard to my view on issues 1 & 2 before this Court. It will be a wasteful exercise to delve into it.
On the 4th issue, it is the contention of the appellants counsel that the Notice of Auction which was the basis for the claim in libel was never proved and the respondent also admitted under cross–examination that the Auction Notice did not bear his name but the name of one Mr. Oshinowo. It followed therefore, that the lower courts were wrong in PAGE| 8 finding defamation proved and awarding damages of N20,000 in favour of the respondent He relied on the case of Onu V Agbese (1985) 1 NWLR pt. 4, 704. In reply, the learned counsel for the respondent submitted that the appellants admitted pasting the Auction Notice on the respondents property and there was therefore no need to tender the Auction Notice or plead the exact words used in it in proof of defamation.
The law is trite that to succeed in an action of libel the plaintiff must prove 3 fundamental elements of defamation constructively:
1. that there is the publication of the material complained of by the defendant;
2. That the publication refers to no other person but the plaintiff conclusively;
3. That the publication is defamatory of the plaintiff. See the cases of Sketch V Aiaqbemokeferi (1989) 1 NWLR Pt.100 678; Onu V Agbese (1985) 1 NWLR Pt. 4, 704 and Service Press Limited V Nnamdi Azikiwe 13 WACA 301.
Applying the principles to the facts of this case it is not in dispute that the respondent did not tender the Auction Notice which he claimed was defamatory of him. The fact that the appellant admitted pasting an Auction Notice is not proof of its contents. It was the duty of the respondent to prove the content of the defamatory statement and failure to do so was fatal to his claim for libel. In addition to this, PW2 Mr Ayodele Akinbiyi who was called by the respondent to testify about the defamatory words stated at page 41 of the printed record as follows:
‘When I saw the Auction Notice I moved near it to see its content, I saw the name of Oshinowo as mortgagor and the 1st defendant as mortgagee, as well the 2nd defendant as auctioneer. The plaintiffs name did not appear hence my surprise.’
From the plaintiffs own showing the offensive publication did not refer to him at all. It could not therefore possibly be defamatory of him. For all I have said in this judgment I see a lot of merit in this appeal. The two lower courts were wrong in their judgments in favour of the respondent. Consequently I set aside the judgments of the two lower courts and in their place I dismiss the respondents claim at the court of first instance and the Court of Appeal. The respondent shall pay costs of N50,000 in favour of the appellants. J.O. OGEBE, JUSTICE, SUPREME COURT A.OLAWOYE ESQ. FOR THE APPELLANTS DR. J. NWOBIKE FOR THE RESPONDENT JUDGMENT
A. M. MUKHTAR, JSC:
This appeal emanated from the decision of the Court of Appeal, Ibadan division, which dismissed the appellants appeal to it. The appellants in the lower court still appealed to this court on six grounds of appeal, from which they distilled the following issues for determination, which were also adopted by the respondent in his brief of argument.
‘(i) Whether the lower court was right in holding that the Respondent was still the owner who was presumed to be in possession of the uncompleted building on which the alleged Auction Notice was pasted after admitting during the trial that he had sold it to one Mr. Olu Adeyeri.
(ii) Whether the lower court was right in holding that the Respondent was entitled to both damages for trespass and injunction after the dismissal of the claim for trespass by the trial court.
(iii) Whether the lower court was right in holding that the Appellants did not proffer arguments on submissions on issues No.1 and 2 formulated for determination and therefore deemed same abandoned.
(iv) Having regard to the pleadings, the evidence led in support and documents tendered from the record, whether or not the lower court was right in dismissing the Appellants appeal.
‘ Issue (1) supra revolves around who was in possession of the property lying at Ijebu Ode/Ibadan Motor Road, Ibadan at the time of the offensive action complained of. First and foremost I will like to consider and comment on the plaintiff/respondents pleadings. In doing so I have observed that the plaintiff has in his statement of claim approbated and reprobated, which the law does not allow. An instance is his averment in paragraph (8) of the statement of claim which reads thus:-
‘8. The Plaintiff immediately took possession of the land and has since been exercising undisturbed or unchallenged by anybody whatsoever his right of ownership regularly clearing the weeds to the knowledge of neighbours.’ PAGE| 11 Then in paragraphs (15) and (16) the following averments weremade:-
’15. That the plot and the development thereon was eventually sold to one Mr. Issac Olu Adeyeri of S 7/4670 Felele Rab Challenge, Ibadan.
16. That the Plaintiff was shocked, disturbed and very much embarrassed when his purchaser Mr.Adeyeri came sometime in July 1991 to inform him that the second defendant, acting on the instruction of the first defendant had pasted an Auction notice on the property threatening to sell the property on 5th August, 1991.’
The pertinent question to ask, on the position of these averments is, how could the plaintiff have still been in possession of the property if he had already sold it to some one else. It is to be noted that the plaintiff either advertently or inadvertently did not state the date he sold the property. At any rate, bearing in mind the position of the law that pleadings is not tantamount to evidence, and so it must be supported by evidence, (See Hutchful v. Biney 1971 1 All NLR 268), I will reproduce the relevant evidence to the averments here below.
They read: ‘P. W.
1. At a stage 1 resolved to dispose of it. I did dispose of it to Mr. Adeyeri of Exide Battery. This was in 1991. I prepared a deed of assignment in his favour. As he was processing this deed in the secretariat he approached me that he was no longer interested in the sale because he saw an auction notice in respect of the property.
He then wrote me a letter for a refund of the purchase price.’ In his evidence under cross examination PWI said interalia thus:-
‘1 gave Mr. Adeyeri copies of Exhibits A and Al in the course of the transaction between us. It was on conclusion of the search he conducted in the Ministry that he paid me N55,000.00. I thereafter took him to the land. I gave him possession. He then instructed a gardener to clear the land. It was while he was in possession that the offensive notice was pasted on the land.’
It is obvious from the above pieces of evidence that the plaintiff quickly retraced his steps when he was cross examined on the issue of who was in possession of the property at the time of the alleged trespass. It is clear from the evidence under cross examination that possession had already passed to a Mr. Adeyeri as at the time the auction notice was pasted on the property. That the evidence of the plaintiff was demolished and discredited in the course of cross examination is undoubtable, and so the learned trial judge was at liberty not to accept and rely on the evidence under examination in Chief. The learned trial judge was therefore in order when in his judgment he found thus:- ‘One of my findings above is that at the time of entry and pasting of the auction notice, Adeyeri was in possession. As the plaintiff was not in possession, he cannot maintain an action in trespass. This head of claim will be refused.’
These findings are based on facts and are not perverse, hence in my opinion the lower court was in error when it interfered with the above finding and substituted its finding which reads:
‘Under the circumstances, I find it difficult to accept or agree with the finding of the learned trial judge in his judgment (at page 52 of the record), that the respondent was not in possession of the land at the time of pasting the auction notice. This finding is contrary to the pleadings and evidence of the said respondent as PW 1 where it is categorically stated that even though he had disposed of the land to Mr. Adeyeri, the transaction was not complete as the deed of assignment in favour of the said Mr. Adeyeri had not been processed or was at the processing stage at the time of the pasting of the auction notice (see page 38 of the record),’
I disagree with the Court of Appeal on the above, and in the circumstance, resolve issue (1) supra in favour of the appellants. In the same token, I resolve issue ii) in the appellants favour for where exclusive possession and trespass have not been the proved, then the entitlement of damages does not arise. The complaint under issue (3) is against the treatment of issues (1) and (2) in the appellants brief of argument by the lower court. It is on record that Adamu J.C.A in his lead judgment, observed and found thus:
‘it is clear that as they have not canvassed any arguments or submissions on other issues (i.e issues 1 and 2) as formulated in their brief, they have or should be treated or deemed as abandoning the said other issues which have not been argued at all in their brief. See Adepade vs. Babatunde 2002 4 NWLR pat. 756) 99 at 1ll, 2002) Vol. 8 WRN 128 at 134. Consequently I will, in this judgment, deal with the only issue argued in the appellants brief (i.e issues 3) while disregarding the other two issues which are only formulated in the said appellants brief without proffering any arguments or submissions to butress them (i.e. issues 1 and 2). Now, what did these issues read? They read:
‘1. Whether from the state of the pleadings the plaintiff made a case for determination.
2. Whether there was publication of the alleged libel.’ The crucial question here is, were there arguments proffered to cover the issues? Of course there were, as can be seen on pages 69-70, scanty as they may have been. The position of the law is that arguments canvassed in respect of a validly formulated issue for determination must be considered by an appellate court and found on, the argument being concise notwithstanding. On the contrary, a brief that contains concise arguments deserves commendation. As stated by Achike l.S.C. (of blessed memory) in the case of F.S.B. int.Bank Ltd v. Imano (Nig.) Ltd 2000 11 NWLR part 679, page 620:
‘A brief submitted on behalf of each party to an appeal, as the term readily suggests is a précis or an abridgment of the relevant submissions a disciplined counsel would wish to put across for consideration by the court demonstrating lucidly and succinctly why his contentions should be preferred rather than those of the opposing counsel. Counsel should caution oneself and be reminded that good advocacy, like writing a good brief, does not accommodate unnecessary repetition since it has long been established that repetition does not improve an argument.’ If the lower court had borne the above in mind it would not have considered issues (1) and (2) before it abandoned. The lower court in my view failed in its duty to deal with the argument proffered by the appellants counsel in their brief of argument and it was in error in this respect.
However, the Supreme Court Act, Cap. 424 Law of the Federation of Nigeria 1990 permits this court to treat the arguments and find on them, and as it is not on record that the issues were specifically abandoned by the learned appellants counsel, I will do so in this judgment. See Bamaiyi v. State 2001 4 S.C. (pt 1) 18, and Katto v.C.B,N. 1999 6 NWLR part 607 page 390 relied upon by learned counsel. Learned counsel for the appellants further submitted that the failure of the lower court to consider the said issues is a breach of the fundamental right ofthe appellants to fair – hearing provided in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, and it has occasioned a miscarriage of justice. The learned counsel for the respondent has argued that the lower court was not bound to consider portions of the appellants brief of argument which were filed but not before it. I am not sure I know exactly what he means. However, he conceded that Section 22 of the Supreme Court Act supra allows this court to consider the arguments covering the said issues (1) and (2) supra. At this juncture, I will reproduce the pleadings that are pertinent to this argument.
They read:-
’16. That the plaintiff was shocked, disturbed and very much embarrassed when his purchaser Mr. Adeyeri came sometime in July 1991 to inform him that the second defendant, acting on the instruction of the first defendant had pasted an auction notice on the property threatening to sell the property on 5th August, 1991.
22. The argument advanced by the first defendant to counter the claim of the plaintiff was based on a false and mistaken identity that by a Deed of Mortgage dated 17th January, 1991 and registered as Instrument No. 14 at page 14 in Volume 3012 one Mr. S. A. Oshinowo mortgaged the property to them.
25. That since the action of the first and second defendants the Plaintiff was looked upon by other residents and landlords in the Area, friends and admirers as a fraud, a cheat, and a highly dishonest person thereby making him an object of ridicule by well thinking person who have decided not to have any dealing with him any longer so that they may not fall victim to his fraudulent and deceitful attitude.
26.The action led to Plaintiff being ostracized and avoided by well and right thinking men in the society thus affecting him phsychologically (sic) and rending (sic) him seriously upset and miserable leading to his being attended to by Doctor for treatment of hypentension (sic) and mental disturbance.
27. That the Plaintiff cannot move freely any more in the society where he had previously been enjoying the highest respect, affection and admiration.’
The primary requirement in a claim of libel is that the plaintiff must plead the alleged libel and the precise words of libel alleged, and thereafter tender it in evidence. In the instant case, no such requirement was met by the plaintiff/respondent. The learned counsel for the appellants has submitted that since the text of the publication was neither pleaded nor proved in evidence the plaintiff has failed to prove defamation. I endorse the submission. See Professor O. Adeniji v. Professor B.L.A. Fetuga 1990 5 NWLR part 150 page 375, Chief Ogunbadejo v. Otunba Omoyemi 1993 1NWLRpart271 page 517, Chief O. L. Okafor v. D. O. Ikeanyi & Ors 1990 3/4 SC 99, and Benue Printing and Publishing Company Ltd. v. Gwawada 19894 NWLR part 116 page 439.
In the same vein, none of the allegations pleaded in the reproduced averments above were proved by the respondent. Besides, it is on record that the said publication neither bore the name of the respondent nor referred to it. It has also been held that the respondent was not in exclusive possession of the property where the alleged offensive publication was pasted, so the content of the alleged publication could not have been alluded to the respondent. I therefore fail to fathom how readers of the alleged publication would deduce that it was targeted at the respondent. To my mind it is a matter of making a mountain of a mole hill. In this light I resolve the issues raised in the appellants brief of argument in the lower court in their favour, and allow the related grounds of appeal. These three issues are the issues I wish to highlight. In totality I find substance in this appeal and allow it. For the foregoing and the more detailed reasoning in the lead judgment, I am in full agreement with my learned brother Ogebe JSC. I abide by the consequential orders made in the lead judgment.
I. F. OGBUAGU, JSC.:
This is an appeal against the Judgment of the Court of Appeal, Ibadan Division (hereinafter called “the court below’) delivered on 23rd May 2002, affirming the Judgment of the Oyo State High Court sitting at Ibadan – per Lajide, J. (of blessed memory) in respect of the claim relating to libel and injunction. Dissatisfied with the said Judgment, the Appellants, have appealed to this court. They have formulated four (4) issues for determination, namely,
“(i) Whether the lower court was right in holding that the Respondent was still the owner who was presumed to be in possession of the uncompleted building on which the alleged Auction Notice was pasted after admitting during the trial that he had sold it one Mr. Olu Adeyeri. (sic) (Covers grounds 1 & 3).
(ii) Whether the lower court was right in holding that the Respondent was entitled to both damages for trespass and injunction after the dismissal of the claim for trespass by the trial court (Covers ground 2)
(iii) Whether the lower court was right in holding that the Appellants did not proffer arguments on submissions on issues No.1 and 2 formulated for determination and therefore deemed same abandoned. (covers ground 6).
(iv) Having regard to the pleadings, the evidence led in support and documents tendered from the record, whether or not the lower court was right in dismissing the Appellants appeal’. The said issues, have been adopted by the Respondent.
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COUNSELS
