TELL COMMUNICATIONS LIMITED & ORS v. BALA JAMES NGILARI
(2019)LCN/12823(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of March, 2019
CA/J/173/2012
RATIO
DEFENCE: DEFENCE ON JUSTIFICATION, PRIVILEGE AND FAIR COMMENT
“On whether the defences of justification, qualified privilege and fair comment availed the appellants, the appellants contention is that all the defences avail them. The respondent on the other hand that said there is no truth in the publication to justify the defences claimed by the appellants. That for any of the defences to avail the appellants, the truthfulness of the publication must first be established. Qualified privilege is a defence to an untrue publication, which can be claimed when the occasion is privileged. An occasion is privileged when the maker of a publication has an interest or duty, whether legal, social or moral, to make the publication to a person who has a corresponding interest or duty to receive the publication. It is the existence of such interest or duty that destroys the inference that the maker of the publication was actuated by another, which the law usually makes in area of defamation, and allow for the occasion to be privileged, except where there is evidence of actual or express malice Mainstreet Bank Ltd. Vs. Binna (2016)12 NWLR (Pt. 1526) 316 at 320-321. See also M.T.S. Ltd. Vs. Akinwunmi (2009)16 NWLR (Pt. 1168) 633 and Ojeme Vs. Momodu (1994)1 NWLR (Pt. 323) 685. A plea of fair comment succeeds as a defence in an action for defamation if the facts relied upon by the defendant are sufficient to justify the statement or publication that the plaintiff finds to be libelous. The facts must be the truth. See Ekong Vs. Otop (supra), Akomolafe Vs. Guardian Press Ltd. (2010)1 SC (Pt. 1181) 338.” PER TANI YUSUF HASSAN J.C.A
TORT LAW: DEFAMATORY STATEMENT
“A statement is defamatory, where if published of and concerning a person, is calculated to lowering him in the estimation of right thinking men or cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business. And the test for determining whether words complained of are defamatory is always that of a reasonable man. That is, the interpretation of the words by a man of ordinary understanding having regards to the circumstances in which the words were made and published. See Sketch Publishing Co. Ltd. Vs. Ajagbemokeferi (supra) and Offoboche Vs. Ogoja LG. (2001) 16 NWLR (Pt. 739) 458…It is trite that statement, to found an action in libel must be false and defamatory of the plaintiff. See Access Bank Plc. Vs. Muhammad (2014) 6 NWLR (Pt. 1404) 613 at 616; Anyike Vs. Anyaso (1992)1 NWLR (Pt. 218) and Dumbo Vs. Idugboe (1983) 1 SCNLR 29. ” PER TANI YUSUF HASSAN J.C.A
JUSTICES
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
1. TELL COMMUNICATIONS LTD
2. NOSA IGIEBOR
3. SHOLA OSHUNKEYE
4. AKIN ORIMOLADE Appellant(s)
AND
BALA JAMES NGILARI Respondent(s)
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of Plateau State High Court sitting at Jos delivered on the 14th day of June, 2012 by Honourable Justice L.C. Dakyen, C.J in Suit No.PLD/J/400/2003.
The respondent as plaintiff at the lower Court instituted an action by Writ of Summons and Statement of Claim filed on the 3rd day of November, 2003 against the appellants as defendants therein, jointly and severally as follows:
(a) The sum of N10,000,000.00 (Ten Million Naira) only as damages for false and malicious publication contained under the caption ‘IBORI’S LIES PUNCTURED’ at pages 20-23 of the TELL Magazine No. 9, March 3, 2003, (the relevant having been set out above) jointly printed, published, circulated and distributed by the Defendants throughout Nigeria including Jos which was calculated to and indeed injured the plaintiff?s reputation on his office and also brought the plaintiff into public scandal, ridicule, odium and contempt.
(b) An injunction restraining the defendants their agents or privies from further writing, printing, publishing, circulating, distributing or otherwise publishing the same or any further or similar publication concerning the plaintiff in Plateau State.
The defendants/appellants filed a Notice of preliminary objection on the 11th of February, 2004 and with the leave of the Court filed a memorandum of appearance and statement of defence on the 2nd of July, 2004. The preliminary objection was determined and dismissed. At the conclusion of trial, judgment was entered in favour of the plaintiff/respondent. Being dissatisfied, the appellants appealed to this Court.
The Amended Notice of Appeal dated 5th March, 2018 was filed on the 9th of March, 2018. It contained eight grounds of appeal with their particulars and reliefs sought.
The appellants’ brief of argument dated 5th March, 2018 was filed on the 9th of March, 2018. In it five issues were distilled for determination as follows:
1. Whether this action filed by the respondent is competent (Grounds 7 and 8)
2. Whether in the light of evidence before the trial Court, it was right for it to hold that the publication complained of was defamatory of the respondent. (Grounds 1 and 2)
3. If the answer to issue 2 above is in the positive, whether the trial Court was right in holding that the defences of qualified privilege, fair comment and justification raised by the appellants did not avail them in the circumstance? (Grounds 3 and 5)
4. Whether the trial Court was right in re-visiting the issue of admissibility of exhibits 2 and 3 and in refusing to accord any weight to them in the circumstances of this case (Ground 4)
5. Whether the sum awarded as damages in favour of the respondent is justifiable under the facts of this case? (Ground 6)
The appellant’s reply brief dated the 6th day of November, 2018 was filed on the 13th of November, 2018 and deemed properly filed on 4th February, 2019. Learned counsel for the appellants adopted the briefs and urged the Court to allow the appeal.
The respondent’s brief was dated and filed on 11th April, 2018. Learned counsel for the respondent adopted the issues as formulated by the appellants. He adopted the brief and urged the Court to dismiss the appeal. I shall be guided by the issues identified by the appellants, while issues 2 and 3 will be taken together.
In brief the facts of the case are that there was allegation that the former Governor of Delta State Chief James Ibori was convicted by an Upper Area Court Bwari, Abuja. Tell Magazine carried out investigation and they published the outcome of their investigation notwithstanding the Supreme Court decision that the former Governor was not the person allegedly convicted as alleged. That on the 3rd of March, 2003, the appellants? TELL Magazine No.9 published an article titled ‘IBORI’S LIES PUNCTURED’ in which the name of the respondent a counsel to Governor Ibori was alleged to have been defamed in the article. The alleged defamation gave rise to the institution of the action by the respondent at the lower Court.
RESOLUTION
ISSUE ONE
Whether this action filed by the respondent is competent.
The contention of the learned counsel for the appellants on this issue is that the Writ of Summons meant for service outside jurisdiction was not signed by any legal practitioner or properly endorsed as required under Sections 97 and 99 of the Sheriffs and Civil Process Act and no prior leave was obtained for issuance of the said Writ of Summon. That the writ was signed by the Registrar of the Court on 3rd November, 2003 and by the judge on 7th November, 2003 and the Ex-parte Motion was heard and granted by the trial judge on 11th November, 2003. Learned counsel argued that, the leave to issue the writ prayed for, was obtained after the writ had been issued. Referring to Order 5 Rule 15 of the High Court of Plateau State (Civil Procedure) Rules 1987, it is submitted that the writ was signed before the order was made. Relying on Nwabueze Vs. Okoye (1988)4 NWLR (Pt. 91) 664 at 667 and Purecham Ind. Ltd. Vs. Spica Shipping Co. Ltd. (2012)3 NWLR (Pt. 492) 195 at 204, it is submitted that non-compliance with the fundamental requirement for exercise of jurisdiction renders the writ incompetent.
Learned counsel for the appellants submitted that the issue of jurisdiction in this case which had not been raised earlier in this case is non-signing of the writ by a legal practitioner as required by the Rules and communion interpretation of Sections 2 and 24 of the Legal Practitioners Act, to which leave is now being sought in this appeal to argue the new point. Referring to the cases of Registered Trustees of Apostolic Church, Lagos Area Vs. Akindele (1967) NWLR 263; First Bank of Nigeria Ltd. Vs. Maiwada (2013)5 NWLR (Pt. 1348) 444; SLB Consortium Ltd. Vs. NNPC(2011)9 NWLR (Pt. 1252) 317 among others, it is submitted that, an originating process of Court which is not signed by a legal practitioner renders the process and the entire action incompetent.
Responding, it is submitted for the respondent, that the argument canvassed by the appellant under issue one is not backed up by any ground of appeal. It is argued that the appellants in paragraph 2.05 of their brief proposed that they will raise the point of non-signing of the writ of summons on appeal but failed to do so.
Relying on Lyen Vs. F.R.N. (2010) 2 NWLR (Pt. 1177) 1 at 14 and N.I.W.A. Vs. S.P.D.C.N. Ltd. (2011)6 NWLR (Pt. 1244) 618 at 627, it is submitted that, the appellants cannot proffer argument on the non-signing of the writ of summons by the plaintiff/respondent?s counsel and the argument proffered should be discountenanced.
It is also the submission of the respondent’s counsel that in case he is wrong on his submission, he said the Plateau State Rules do not require a Legal Practitioner to sign a writ of summons as Courts in Nigeria have different Rules governing their practices and procedures. He referred to Salami Vs. Yahaya (2009)17 NWLR (Pt. 1171) 581 at 600 and Plateau State High Court Civil Procedure Rules, 1987.
It is further submitted that by the provisions of the Plateau State High Court Civil Procedure Rules, the writ was sufficiently endorsed, having been signed by the trial judge. The Court was referred to A.S.T.C Vs. Quorum Consortium Ltd. (2009)9 NWLR (Pt. 1145) 1 at 21.
Learned counsel for the respondent referred to page 8 of the record that the writ of summons was accompanied by a statement of claim making it a specially endorsed writ and was signed by the plaintiff/respondent’s counsel, which solves the appellants’ problem in this matter.
That the appellant’s reliance on Sections 2 and 24 of the Legal Practitioner’s Act and host of cases cited in their brief are not applicable to this case as they deal with the principle that a legal practitioner cannot sign a Court process in the name of a legal firm which is not the case here.
Learned counsel for the respondent contended that the appellants’ argument from paragraphs 4.01-4.05 contained in their brief centered on the failure to obtain leave of the trial Court before the writ of summons was issued. That this issue based on grounds 7 and 8 is an appeal against the interlocutory ruling of the trial Court delivered on the 23rd of April, 2004, and there was no leave sought and obtained by the appellants to appeal against the said ruling.
Relying on the case of Kotun Vs. Olasewere (2010)1 NWLR (Pt. 1175) 411 at 429-430, the Court is urged to discountenance the argument of the appellants and strike out grounds 7 and 8 of the Amended Notice of appeal as incompetent. That Order 5 Rule 14 of the Plateau State High Court Civil Procedure Rules relied upon by the appellants is inapplicable to this case. The Court was referred to N.N.P.C Vs. Anwuta (2000)13 NWLR (Pt. 684) 363 at 375; Okafor Vs. Igbo (1991)8 NWLR (Pt. 210) 476 at 484-485 and B.B. Apugo & Sons Ltd. Vs. O.H.M.B (2016)13 NWLR (Pt. 1529) 206 at 248 among others, and the Ex-parte Motion for leave to issue the writ outside jurisdiction.
That the writ served on the appellants was duly endorsed as required by Section 97 of the Sheriffs and Civil Process Act, but the appellants’ failed to exhibit the writ complained of, which is a game of hide and seek that is not permissible in our jurisprudence. He referred to Bello Vs. N.B.N (1992)6 NWLR (Pt. 246) 200 at 218-220 and B.B.N Ltd. Vs. Olayiwola & Sons Ltd. (2005)3 NWLR (Pt. 912) 434 at 45 among others.
We are urged to discountenance the submissions of the appellants and strike out grounds 7 and 8 of the Notice of Appeal.
On the competency of action, learned counsel for the appellants in their reply brief referred to the Motion on Notice dated 29th November, 2017 by which they prayed among other reliefs for leave to raise fresh issue of law on appeal, to wit, that this action is incompetent, the writ of summons not having been signed by a legal practitioner. That this point of law has been distinctly raised by counsel as it is an issue of jurisdiction that can also be raised at any stage of the matter. He referred to Zakirai Vs. Muhammad (2017)17 NWLR (Pt. 1594) 181 at 258 F-G; B.B.N Ltd. Vs. Olayiwola & Sons Ltd. (2005)3 NWLR (Pt. 912) 434 at 458; Agbiti Vs. Nigerian Navy (2011)4 NWLR (Pt. 1236) 175 at 207 and First Bank of Nigeria Ltd. Vs. Maiwada (2013)5 NWLR (Pt. 1348) 444 at 483.
The contention of the appellant is that the writ of summons meant to be served outside jurisdiction was not signed by a legal practitioner or properly endorsed as required under Sections 97 and 99 of the Sheriffs and Civil Process Act. That there was also no prior leave obtained for issuance of the said writ of summons by the respondent.
A writ of summons is an originating process and its competence gives the Court the jurisdiction to look into the suit before it. It is fundamental as it is the first process to be filed in the Court by a plaintiff or claimant to invoke the jurisdiction of the Court. See Abbas Vs. Tera (2013)2 NWLR (Pt. 1338) 284 and WAEC Vs. Akinkunmi (2008)9 NWLR (Pt. 1091) 151.
In determining this issue, it is necessary to look at the provisions of the Plateau State High Court Civil Procedure Rules in relation to the filing of processes in Plateau State High Court. The appropriate applicable rule is provided for under Order 5 Rule 1 of the Plateau State High Court Civil Procedure Rules, 1987 which states in clear terms thus:
‘A writ of summons shall be issued by a judge, or an officer of the Court empowered to issue summons, on application.’
Under the High Court Civil Procedure Rules, 1987 of Plateau State, it is the judge who has the duty to issue writ of summons by virtue of Order 5 Rule 1 of the Rules of the High Court and the exercise of that duty is a condition upon application being first made. There is no express provision in the rule aforesaid requiring a legal representative to sign the writ. However by the decision of this Court in Aunam (Nig.) Ltd. Vs. Leventis Motors Ltd. (1990)5 NWLR (Pt. 151) 458 the plaintiff or his counsel could authenticate or sign the statement of claim.
As it is not within the contemplation of Order 5 Rule I of the Plateau State High Court Civil Procedure Rules that the writ of summons will be signed by a legal practitioner, the reliance on Sections 2 and 24 of the Legal Practitioners Act 1990 by the appellants is of no moment. This is because the sections only defined a legal practitioner to be ?A person entitled in accordance with the provisions of the Act to practice as a Barrister and solicitor either generally or for the purpose of any particular office or proceedings.
In my view the reference point is the signature of the judge as it appears on the writ which is the requirement under the Plateau State High Court Civil Procedure Rules. Thus the rules applicable in one Court do not dictate matters of practice and procedure in another Court. It follows therefore, a Court must comply with the rules governing its practice and procedure.
I must say that the rules were complied with, in this case, the writ having been signed by the judge and authenticated by the endorsement on the statement of claim by the respondent?s counsel. The appellants have failed to place before the Court the writ which they alleged was not signed.
It is also the contention of the appellants that the motion ex-parte filed by the respondent where leave to issue the writ out of jurisdiction was prayed for and granted on the 11th of November, 2003, was obtained after the writ had been issued on the 7th of November, 2003 contrary to Order 5 Rule 15 of the Plateau State High Court Civil Procedure Rules, 1987.
Learned counsel referred to Order 5 Rule 14 on issuance of writ outside jurisdiction. Order 5 Rule 14 of the Plateau State High Court Civil Procedure Rules provides:
No writ which, or notice of which, is to be served out of the jurisdiction shall be issued without leave of the Court.
Order 5 Rule 15 provide:
Issue of a writ takes place upon its being signed by a judge or an officer of the Court duly authorized to sign the writ.
The submission of the appellants’ counsel in this regard is a misconception of the law. This is because, common sense dictates that it is only when the originating process is duly signed that it can be issued to the other party either within or outside jurisdiction. Service of the writ outside jurisdiction is the basis of the application and the consideration for granting same. Without the writ being signed as required by law, there is nothing to be served outside jurisdiction. It means therefore the writ must be duly signed as authenticated for application for leave to issue same outside jurisdiction to follow. It is my opinion that the motion ex-parte granted on the 11th of November 2003 is not in contravention of Order 5 Rule 15 of the Plateau State High Court Civil Procedure Rules, 1987 as contemplated by the appellants. The writ of summons issued in this suit having been complied with the Rules of Plateau State High Court Rules is competent and I so hold. Issue one is resolved in favour of the respondent against the appellants.
I discountenance the submission of the respondent?s counsel on issue one based on grounds 7 and 8 because by a motion on notice filed on 29th November, 2017, the appellants were granted leave on 26/2/2018 to raise fresh issues on appeal which is reflected in the Amended Notice of Appeal filed on the 9th of May, 2018. The argument is therefore discountenanced as it does not rise.
Issues two and three will be taken together.
ISSUE TWO
‘Whether in the light of evidence before the trial Court, it was right for it to hold that the publication complained of was defamatory of the respondent.’
ISSUE THREE
If the answer to issue 2 is in the positive, whether the trial Court was right in holding that the defence of qualified privilege, fair comment and justification raised by the appellants did not avail them in the circumstance.
On issue 2, the learned counsel for the appellants referred to the judgment of the trial Court at pages 215-217 of the record and submitted that in arriving at the conclusion that the publication complained of by the respondent was defamatory, the trial judge did not consider the entire facts as stated in the publication but only segments that appeared to have displeased the respondent. That the trial judge failed to appreciate the fact that the appellants merely presented the positive of the opposing camps in the Ibori Saga.
It is contended that there is no way the aspect of the publication could be rightly construed to amount to an assertion by the appellants that the respondent offered bribe as an agent of Ibori to induce those concerned to suppress the truth or to make them compromise, as the trial judge concluded.
That on the issue of agents of Ibori prowling the Federal Capital since the scandal burst, it is submitted that, that aspect of the publication did not refer to the respondent and that the trial Court was wrong to so conclude. Learned counsel argued that even if that aspect of the publication referred to the respondent, under the circumstances, it is justifiable from the facts of the case, the respondent having admitted not only seeking for a meeting with the judge Mohammed Awal Yusuf, he also met with the Police investigator, Police prosecutor and others said to be connected with the matter. Submitting further that the respondent in his evidence stated that he was not the only person at the Federal Capital, the Attorney General of Delta State and Ibori himself were there on the same mission.
That contrary to the finding of the trial judge, the evidence adduced before the trial judge justified the assertion that Ibori’s agents including the respondent were in town to meet the persons concerned on the matter.
Referring to the case of UBA Ltd. Vs. Oredein (1992) 6 NWLR (Pt. 247) 355 at 372 D-E, it is submitted that the trial Court was in error to have arrived at a conclusion that the publication was defamatory of the respondent when the truth is that the respondent arranged a meeting between the judge Mohammed Awwal Yusuf and Ibori to give evidence in favour of the Governor, Ibori. That there was nowhere in the publication the respondent was portrayed as an incompetent lawyer as alleged but was rather portrayed as a competent lawyer who had a different cause to solve, hence the statement in the article that ?If he had done so, it would have been easier for the proverbial clause to scale through the needle’s eye than for him, or any other lawyer for that matter to successfully prove the Delta State Governor innocent.
On issue 3, it is argued on behalf of the appellants that the defences of justification, qualified privilege and fair comment availed the appellants in the circumstances of this case. It is argued that the publication was based on interviews conducted on both the respondent and the judge Mohammed Awwal Yusuf and others by the appellants which was confirmed by the sole witness of the appellant when he testified in his evidence in chief at pages 142 and 145 of the record, and by the respondent at page 136 lines 17 and 18 of the record. It is submitted that it was wrong for the trial judge to jettison the defences properly and ably raised by the appellants on the excuse that exhibits 2 and 3 were worthless documents.
Learned counsel for the appellant also contended that based on the facts and circumstances of this case and the con published, the defence of justification availed the appellants. Relying on J.S. Tarka Vs. Sketch Publishing co. Ltd. reported in Gani Fawehinmi?s law of libel and the press at page 448, it is submitted that to establish the defence of justification, the appellants need not prove that Ibori was convicted or that he offered bribe but the allegations were in fact made as published.
That the respondent having admitted that he arranged a meeting between Ibori and the judge, and the judge who claimed to have been offered a bribe on that occasion, the publication of the two versions of claim in the appellants? article is justified. It is argued that the appellants cannot be accused of irresponsibility or recklessness since they never asserted the facts and the facts were not even disputed by the respondent. That exhibits 2 and 3 show clearly that the judge said he was offered bribe by Ibori. The Court was referred to Agbi Vs. Ogbe (2005) 8 NWLR (Pt. 926)40 at 116-119 and Agbi Vs. Ogbe (2006)11 NWLR (Pt. 990) 65.
On defence of qualified privilege, learned counsel for the appellant argued that the issue published in the article and the allegations made against the said James Ibori, who was then the sitting Governor of Delta State is of vital interest to the public, concerning a Governor seeking re-election and who was alleged to have been convicted of criminal offence and the Upper Area Court Judge who claimed to have convicted him, alleged that Ibori sought to bribe him. Relying on the case of Gomes Vs. Punch Nigeria Ltd. (1999)5 NWLR (Pt. 602) 303 at 311, it is submitted that even if the publication complained of, is defamatory of the plaintiff, since the publication is on ground of public policy, the appellants incurred no legal liability for the publication. Also referred are Adam Vs. Ward (2017) AC 309 at 334 and Akomolafe Vs. Guardian Press Ltd. (2010)1 SC (Pt. I) 58 at 86 paras 1-10. That members of the public have interest in knowing all the circumstances surrounding the matter and the duty of the appellants to publish such information is reinforced by Section 22 of the 1999 Constitution. Also that the Constitution enjoins the appellants to uphold the responsibility and accountability of Government to the people.
Referring to the case of Concord Press Nig. Ltd. Vs. Asaolu (1999)10 NWLR (Pt. 621) 123 at 135 E-H and Concord Press Nig. Ltd. Vs. Olutola (1999)9 NWLR (Pt. 620) 578 at 596 AC, it is submitted that the defence of qualified privilege is founded on the principle that public convenience is to be preferred to private interests and that communication which the interest of society require to be unfettered may freely be made by persons in actual honesty without actual malice notwithstanding that they involve relevant comments condemnatory of individuals. The Court was referred to NTA Vs. Babatope (1996)4 NWLR (Pt. 440) 75 at 97 para E-D and Bakare Vs. Ibrahim (1973)6 SC 205 at 2013.
On the defence of fair comment, the submission of the appellants counsel is that from the evidence before the Court, the fact upon which the publication was based, even if there was a case of defamation made, the defence of fair comment would avail the appellants as there was allegation that former Governor Ibori was convicted at Upper Area Court Bwari and the respondent was the lawyer to Ibori who arranged for the meeting and what transpired at the meeting. That given the facts published which were not asserted by the appellants support the defence of fair comment. The Court was referred to Ajileye Vs. Fakayode (1998) NWLR (Pt. 545) 184 at 195 para E-G on test to be determined whether a comment is fair or not.
We are urged to resolve the issues in favour of the appellants.
For his part, learned Senior counsel for the respondent in response to issue 2, referred to the findings of the trial judge at pages 197-201; 201-207 and 214-220 of the record and submitted that the learned trial judge did not only consider the whole publication but also the appellants? defence before arriving at the conclusion that the publication is defamatory. Relying on Gatley on Libel and slander 7th Edition at page 24 paragraph 50 and the cases of Economides Vs. Thomopulos & Co. Ltd. (1956) N.S.C.C. 9 at 12 and Ekong Vs. Otop (2014)11 NWLR (Pt. 1419) 549 at 567, it is submitted that in the light of the evidence before the Court, the trial Court was right to hold that the publication complained of is defamatory of the respondent.
On issue 3, learned Senior counsel for the respondent referred again to the findings of the trial Court at pages 236-238 and 242 of the record in considering the defences raised by the appellants at the lower Court and the evidence of DW1, the sole witness of the appellants and submitted that the appellants cannot be right when they argued that DW1 stated the truth when his evidence is one of hearsay. The cases of INEC Vs. Ray (2004)14 NWLR (Pt. 892) 92 at 127-128 and Summit Fin. Co. Ltd. Vs. Iron Baba & Sons Ltd. (2003)17 NWLR (Pt. 848) 89 at 113 were referred to. That the evidence of DW2 is also hearsay which is grossly inadmissible and with the damaging evidence, the appellants cannot insist to have made out good defences, when there is no truth on the publication to justify the defences. That for any defence to avail the appellants, the truthfulness of the publication must first be established. He referred to Onyejike Vs. Anyasor (1992)1 NWLR (Pt. 218) 437 at 451 para D and A.C.B. Ltd. Vs. Apugo (2001)5 NWLR (Pt. 707) 483 at 496.
Learned counsel for the respondent argued that the whole complaints stated in the publication raised criminal imputation against the respondent which requires proof beyond reasonable doubt. He relied on Obasuyi Vs. Ezeighu (1991)3 NWLR (Pt. 181) 587 at 591. The relevant portions of the publication, pleadings and evidence were referred to determine whether the appellants established the truth of the imputation.
On defence of qualified privilege, it is submitted that the appellants must first establish that the content of the publication is true. He relied on Duyile Vs. Ogunbayo & Sons Ltd. (1988)3 SC 1 at 17-18; African Newspaper Ltd. Vs. Ciroma (1996)1 NWLR (Pt. 423) 156at 165 and Atoyebi Vs. Odudu (1990)6 NWLR (Pt. 157) 384 at 399-401.
That on the decision of Anyejike Vs. Anyasor (1992)1 NWLR (Pt. 218) 437 at 451 and African Newspaper Vs. Ciroma (supra), it is submitted that a defence of qualified privilege has limitation and that the conclusion is that the defence of qualified privilege does not avail the appellants.
On defence of fair comment, learned Senior Counsel argued that the appellants never established that their publication was a comment, rather that their publication was a clear case of an attack on the character of the respondent. Relying on Ezekwe Vs. Otomewo (1957) NWLR 130 at 132, it is submitted that the publication cannot by any stretch of imagination, be said to be a fair comment. That the appellants having failed to establish the truth of the allegation, they are not entitled to the defences raised.
We are urged to resolve in favour of the respondent.
The contention of the appellant is that the trial Court having failed to consider the entire facts as stated in the publication was wrong to arrive at the conclusion that the publication complained of, was defamatory of the respondent. That the defences of justification, qualified privilege and fair comment avail the appellants in the circumstances of this case.
The Supreme Court in Ekong Vs. Otop (2014)11 NWLR (Pt. 1419) 549 at 554 enumerated the ingredients of libel which the plaintiff must prove, that:
(a) The defendant published in a permanent form a statement;
(b) The statement referred to the plaintiff;
(c) The statement conveys defamatory meaning to those to whom it was published, and
(d) The statement was defamatory of the plaintiff in the sense that;
(i) It lowered the plaintiff in the estimation of right thinking members of the society, or
(ii)It exposed the plaintiff to hatred, ridicule or contempt; or
(iii)It injured the plaintiff?s reputation in the plaintiff?s office, trade or profession, or
(iv)It injured the plaintiff?s financial credit.
See also Dalumo Vs. Sketch Publication Co. Ltd. (1972)5 SC 308; Sketch Publishing Co. Ltd. Vs. Ajagbemokeferi (1989)1 NWLR (Pt. 100) 678 and Guardian Newspapers Ltd. Vs. Ajeh (2011)11 NWLR (Pt. 1256) 574.
A statement is defamatory, where if published of and concerning a person, is calculated to lowering him in the estimation of right thinking men or cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business. And the test for determining whether words complained of are defamatory is always that of a reasonable man. That is, the interpretation of the words by a man of ordinary understanding having regards to the circumstances in which the words were made and published. See Sketch Publishing Co. Ltd. Vs. Ajagbemokeferi (supra) and Offoboche Vs. Ogoja LG. (2001) 16 NWLR (Pt. 739) 458.
In paragraph 13 of the statement of claim the defendant/respondent reproduced the statements in the Tell Magazine, exhibit ‘I’ that were made by the appellants which he opined were defamatory of him (respondent). The following statements allegedly made, read: For the over three years that the Justice Chukwudi Oputa-led Human Rights Violations Investigation Commission, HRVIC lasted, Bala Ngilari, a lawyer-member of the commission, shone like a thousand stars. He and other commissioners became instant celebrities as they were shown on prime television, night after night, exhibiting rare courage and unparalleled transparency, trying to sort Nigeria out of the crisis arising from its seasons of terror. In those seasons when men become scoundrels who swallow their tongues to save their mouths, the Adamawa Sate born lawyer and his fellow Oputa panelist sat, hours on end, struggling resolutely and confidently to liberate the nation from its incarcerated conscience.
But the Ngilari that faced a Tell team in the Magazine’s Abuja office, last Wednesday night was a shadow of the confident and coherent barrister the viewing public saw on television those three years. At the onset of the interview, he answered every question fired at him in his characteristic cool and calm way.
If he had not done so, it would have been easier for the proverbial camel to scale through the needle?s eye than for him, or any other lawyer for that matter, to successfully prove the Delta State Governor innocent of the charge (of being a convict) slammed against him by his accusers. He (Ngilari) would have perhaps blabbed, like he did at a point during last Wednesday?s interview with Tell when he was confronted with new overwhelming evidence yielding by another investigation by the magazine proving that James Onanefe Ibori, the current Governor of Delta State was in truth the same man tried, convicted and sentenced to a fine of N500 or six months imprisonment on each of the two counts on September, 28, 1995 by Bwari Court.
Still, the Ibori camp will not give up. On Monday, January, 20, this year, Ngilari paid a special visit to Yusuf in his chambers in Upper Area Court Abuja. Introducing himself as the same Ngilari of the popular Oputa panel, he said he had a massage from Ibrahim Sabo, a retired Brigadier General and former boss of the Directorate of Military Intelligence, DMI, under Ex-military Dictator, General Sani Abatcha, seeking his co-operation in the matter. The judge again reportedly turned down the request, advising Ngilari to return to the same Bwari Court and file a suit and get him, the commissioner of police (FCT) and Chief Registrar to come to testify, this Ngilari did on January, 23 through suit No. BWAC/CV/1010.
To end that meeting, however Ngilari reportedly requested the judge to meet the Governor at the Delta State Governor’s lodge in Asokoro. After much reluctance and some deep contemplation, the judge reportedly acquiesced.
The ‘meeting’ held the following day, Tuesday, January 21, at the Delta State liaison office, also in Asokoro. In attendance were Ibori, A.A. Otuama, a professor of law and Delta State Attorney General, whom the judge reportedly described as a man of a short height and black in complexion with medical glasses, Ngilari and the judge. Ibori was already seated when Ngilari and Yusuf arrived. And he was in no mood for verbose niceties, he went straight to the point.
‘Help us out of this mess’ the Governor reportedly told the judge ‘and I will make you for life.’ The magazine was informed last week that agents of Delta State Governor had been prowling the Federal Capital since the scandal burst, amounting tremendous pressure on people connected with the case, one way or the other, to ‘cooperate’ with Ibori. The nugget of the pressure perhaps, could be a N10 Million bribe allegedly offered Yusuf and other mouth – watering proposals to others.
Ngilari was livid when confronted with these suggestions last week ‘No, I never mentioned the name of General Ibrahim Sabo to him’, he thundered. But he admitted that he must have visited the judge on a couple of occasions, mostly ‘in his chambers’. I felt that will be most unkind and uncharitable of me to mention General Sabo. According to him the idea of bringing Awwal to talk with the Governor was in furtherance of the case we were to file and I was convinced then that this case is a case of impersonation. The meeting was not at the instance of the Governor at all.
Although Ngilari bluntly refused to disclose details of the meeting with Ibori, he however said the Governor never uttered a word during the meeting, let alone offer a bribe. Ibori was silent throughout the meeting, he said. The essence of inviting Yusuf to meet Ibori, he insisted, was to persuade him to be called as a witness in the case before the Bwari Court. In fact, he brandished a letter which he wrote to the judge and Ya’u inviting them as witnesses.
The plaintiff/respondent averred in paragraph 15 of his statement of claim at page 7 of the record that he never arranged any meeting for His Excellency, the Executive Governor of Delta State, Chief James Onanefe Ibori to bribe Alhaji Muhammed Awwal Yusuf, the Upper Area Court Judge as alleged in the above passage. In paragraph 16, it is deposed that the plaintiff in his capacity as counsel to the Governor, in the course of gathering material to challenge the alleged conviction of the Governor, approached Alhaji Muhammed Awwal Yusuf, the Upper Area Court Judge to enquire from him the relevant facts pertaining to the proposed case.
In paragraph 17 of the statement of claim it is averred that the Upper Area Court Judge told the plaintiff that the said Governor never appeared before him at the Bwari Upper Area Court throughout the period he sat there as the judge.
The plaintiff/respondent in paragraph 20 of the statement of claim averred that by the aforesaid publication quoted above, the imputations contained therein in so far as they attack the character of the plaintiff generally and/or in the way of his offices is false and malicious, and that by reason of the said publication the plaintiff/respondent had been greatly injured in his credit and reputation and also in his offices.
PW1 in his evidence before the Court at page 17 of the record said after reading the Tell Magazine, he was disappointed that the respondent was the go between the Governor and the Judge in relation to a bribe of N10,000,000.00 (Ten Million Naira). That it is a disappointment for a lawyer to arrange bribe for a judge.
The respondent who testified as PW2 at page 119 also said in his evidence that the publication portrayed him as an incompetent lawyer, unethical and encouraging monetary bribery to obtain justice which allegation is enough to debar him as a lawyer and cause his removal from the National Assembly as a representative of his people, while his people considered him morally, mentally and intellectually fit to represent them. The respondent said, by this publication he received several calls from within and outside the country to which the callers expressed their shock and astonishment, and this he said, has affected his reputation.
The appellants in paragraph 5 of their statement of defence at page 23 of the record denied that the said words set out in paragraph 13 of the statement of claim are defamatory of the respondent.
The trial judge at page 204-207 found:
A cursory look at the publication complained of in exhibit ‘I’ commencing from page 21 therein running down to page 23, a reasonable man would have no doubt that, though the heading (title) of the story is tagged at Ibori, the actual story is directed at the plaintiff and the facts stated in the article correspond with the facts pleaded by the plaintiff in para 1-6 of statement of claim.
As regards to whether or not a reasonable man who knows the plaintiff can come to the same conclusion that the article in fact referred to the plaintiff, I am not in doubt that a reasonable man will. This is because of the specific mention of the plaintiff?s name, portfolio and designation in the publication.
Beside, PW1 in his evidence stated that he identified the picture of the plaintiff in exhibit ‘I’ which made him to read the publication in issue. This to my mind means that both individuals did not have any difficulty in identifying the plaintiff as the central figure, as well in the publication in question.
At page 218 of the record, the trial Court also found:
The central character in the light of the prowling agents and persons connected to the convicted matter were the plaintiff and the Upper Area Court Judge. No doubt an ordinary (reasonable man) person in the circumstance would come off with the imputation that the plaintiff was a medium for some sort of corruption practice, which include but not limited to concealing the truth as to the conviction in connection. This indeed is capable of lowering the estimate of the plaintiff before the right thinking members of the society generally and expose him to ridicule or contempt and injurious to his reputation.
It is evident that the issue of the publication of the article in Tell Magazine No. 9 of 3rd March, 2003 is not in dispute. The appellants are not disputing the fact that the communication of the article are to some others, than the respondent. An action for libel must fail if publication of the defamatory matter is not proved. The proof must be given by the admissible evidence as it is the publication that gives a cause of action. See Ayeni Vs. Adesina (2007)7 NWLR (Pt. 1033)233 at 241.
DW1, under cross-examination at page 147 of the record said the basis of the interview was to verify if the plaintiff/respondent arranged a meeting between James Ibori and the Area Court Judge. Also to know if Ibori offered bribe to the judge or not, and the plaintiff/respondent denied the allegation of bribe. Still under cross-examination DW1 said the magazine (appellants) still stand by the story despite the Supreme Court decision that found the allegation as baseless.
It follows therefore that the appellants by their own showing admitted to the publication of the defamatory statement against the respondent. The respondent as plaintiff at the lower Court has proved that he was the one referred to in the article exhibit ‘I’. In his testimony as PW2 and the testimony of PW1 and in fact the identity of the respondent who was referred to in the article was never in issue. The article referred to the respondent and it is defamatory of him. The contents fall within the essential ingredients of, and enough to prove libel. The respondent’s witness has shown his disgust after reading the article. The appellants did not deny publishing the article. The appellants could not have denied having still stand by the published story.
It is trite that statement, to found an action in libel must be false and defamatory of the plaintiff. See Access Bank Plc. Vs. Muhammad (2014) 6 NWLR (Pt. 1404) 613 at 616; Anyike Vs. Anyaso (1992)1 NWLR (Pt. 218) and Dumbo Vs. Idugboe (1983) 1 SCNLR 29. The respondent in the instant case denied arranging a meeting for the Governor to offer bribe to the judge. The appellants did not counter this assertion of the respondent and did not call a witness to confirm or refute the respondent’s assertion. These facts are therefore deemed admitted as false statement of the respondent. The trial judge was right in finding the statement in the article as defamatory of the respondent.
On whether the defences of justification, qualified privilege and fair comment availed the appellants, the appellants contention is that all the defences avail them. The respondent on the other hand that said there is no truth in the publication to justify the defences claimed by the appellants. That for any of the defences to avail the appellants, the truthfulness of the publication must first be established.
Qualified privilege is a defence to an untrue publication, which can be claimed when the occasion is privileged. An occasion is privileged when the maker of a publication has an interest or duty, whether legal, social or moral, to make the publication to a person who has a corresponding interest or duty to receive the publication. It is the existence of such interest or duty that destroys the inference that the maker of the publication was actuated by another, which the law usually makes in area of defamation, and allow for the occasion to be privileged, except where there is evidence of actual or express malice Mainstreet Bank Ltd. Vs. Binna (2016)12 NWLR (Pt. 1526) 316 at 320-321. See also M.T.S. Ltd. Vs. Akinwunmi (2009)16 NWLR (Pt. 1168) 633 and Ojeme Vs. Momodu (1994)1 NWLR (Pt. 323) 685.
A plea of fair comment succeeds as a defence in an action for defamation if the facts relied upon by the defendant are sufficient to justify the statement or publication that the plaintiff finds to be libelous. The facts must be the truth. See Ekong Vs. Otop (supra), Akomolafe Vs. Guardian Press Ltd. (2010)1 SC (Pt. 1181) 338.
The issue for determination is whether the defences can avail the appellants’ By the defence of qualified privilege the appellants are saying no more than even though the words complained of may be defamatory, the appellants cannot incur any legal liability if the application was not actuated by malice.
It is apparent then, that for the appellants to be able to rely on the defence of qualified privilege in the circumstances, the defamatory statement must be made honestly without any improper motive. In the instant case the publication was established to be untrue. In the circumstance the occasion of the publication complained of was not privileged and the defence of qualified privilege does not avail the appellants.
For the appellants to rely on defence of fair comment, the facts must be the truth. Exhibit ‘I’ in which the article was published was not a fair comment. This is because the press in a society that uphold the rule of law as a way of life has a solemn duty to feed the society with the true facts and honest comments. The duty on a publishing outfit to disseminate information on matters of public interest must be circumscribed by the need to properly investigate and authenticate information before publication. This the appellants have failed to do in this case, and in which case there is no justification for the defences of qualified privilege and fair comment to avail them, as there was no evidence led in proof of their defences that the publication was true.
Issues 2 and 3 are resolved in favour of the respondent against the appellants. The appellants? reply brief on these issues is discountenanced because it is a repetition of what has already been canvassed.
ISSUE FOUR
Whether the trial Court was right in re-visiting the issue of admissibility of exhibits 2 and 3 and in refusing to accord any weight to them in the circumstances of this case.
On this issue, the appellants in contending that the trial Court considered the issue of admissibility and resolved in favour of the appellants, the trial judge was wrong in revisiting the issue of admissibility that the documents were not properly certified and consequently failed to accord any weight to them. That the only issue sought to be proved was the fact of existence of the documents and was not sought to establish the truth of the contents of the documents.
It is argued that the trial judge, having resolved the issue of admissibility, he has become functus officio but only to assess the probative value of the documents. The Court was referred to FBN Plc. Vs. TSA Ind. Ltd. (2010)15 NWLR (Pt. 1216) 247 at 296. We are urged to overrule the trial Court and hold that the documents deserve to be given probative value in the circumstances of this case. The Court is urged to resolve in favour of the appellants.
For his part, learned counsel for the respondent submitted that one of the grounds of his objection at the trial Court, was that the documents did not satisfy the requirement of Section 111 of the Evidence Act in the manner certification should be. That both exhibits ‘2’ and ‘3’ reveal that they were merely stamped certified true copies with unknown initials which falls short of the requirements of Section 111 of the Evidence Act. The Court was referred to Obinwunne Vs. Tabansi ? Okoye (2006)8 NWLR (Pt. 981) 104 at 116 para A-B and Ukachukwu Vs. UBA (No. 2) (2005)9 NWLR (Pt. 930)370 at 392 and Obadina Family Vs. Ambrose Family (1969) NWLR 24 at 30-31. That no reasonable Court would attach any reliance on exhibits ‘2’ and ‘3’. We are urged to dismiss ground 4 of the Amended Notice of Appeal and answer issue 4 in the affirmative.
Exhibits ‘2’ and ‘3’ are public documents. Section 104(1) of the Evidence Act 2011 provides:
Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.
104(2) ‘such certificate as is mentioned in subject (i) of this section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed whenever such officer is authorized by law to make use of a seal, and such copies shall be called certified copies.’
Exhibits ‘2’ and ‘3’ having fall short of the mandatory requirements of Section 104(1)(2) are inadmissible in the first place. Where the law declares a document inadmissible, the document cannot be admitted in evidence for any purpose even where there was no objection to its admissibility or even where the parties consent to it. If the document is admitted in evidence, the Court should not act on it. Furthermore, the appellate Court has the power to reject such evidence and decide the case on legal evidence. See Etim Vs. Ekpe (1983)1 SCNLR 120 and Alao Vs. Akano (2005)11 NWLR (Pt. 35)160.
In the instant case the trial Court was right to refuse to rely on exhibits ‘2’ and ‘3’ or attach any weight to the documents. The appellants argument that the trial Court ought to attach probative value to the documents will not hold. More so where the maker of the document is not called to testify, the document would not be accorded probative value even if the documents are certified. Mere stamping exhibits ‘2’ and ‘3’ as certified is not enough. The officer who certified must have his name and his official title indicated therein. It is mandatory. This exhibits ‘2’ and ‘3’ are lacking. The trial Court was right in attaching no weight to the documents.
Issue four is resolved in favour of the respondent and against the appellants.
ISSUE FIVE
Whether the sum awarded as damages in favour of the respondent is justifiable under the facts of this case.
The submission of the appellant?s counsel on this issue is that the trial Court took irrelevant factors into consideration when it awarded the full amount claimed by the respondent, that the publication was circulated worldwide when there was no evidence to that effect. That the huge amount awarded to the respondent is not justifiable as he would have been entitled to mere nominal damages to be awarded by the trial judge. We are urged to set aside the whole sum awarded to the respondent by the trial judge.
Responding, it is submitted on behalf of the respondent that the trial Court has the discretion to award damages as it deems fit. The case of Guardian Newspaper Ltd. Vs. Ajeh (2005) 12 NWLR (Pt. 938) 205 at 230 was referred to.
That it is trite law, the conduct of the defamer is a factor to be considered in determining the amount of damages to be awarded and the appellants have not convinced this Court why the amount of damages awarded should be tempered with.
Relying on the case of Onyejike Vs. Anyasor (supra) this Court held that in the assessment of damages the Court is entitled to consider everything and all circumstances including the conduct of the defendant from the time of the publication to the moment of the verdict. That the unrepentant appellants persisted on the publication. It is finally submitted that having regard to the circumstances surrounding this case, the sum of N10,000,000.00 (Ten Million Naira) is not too much for the person of the respondent taking into consideration theNdevaluation of the naira and the rate of inflation in the economy. The case of Benue Printing and Publishing Corp. vs. Gwagwada (1989)4 NWLR (Pt. 116) 439 at 456 was referred to.
We are urged to dismiss the appeal and affirm the judgment of the lower Court.
Learned Counsel for the appellant submitted in their reply brief that the trial Court in the exercise of discretion to award damages, the exercise of discretion should be judicially and judiciously having regards to the circumstances of the case. We are urged to set aside the whole sum awarded in favour of the respondent.
The general rule of law is that damages are awarded as compensation for the injury suffered by the plaintiff and not as punishment for wrong doing. In defamation cases, the law generally presumes damages. However the Court in awarding damages must exercise its discretion judicially and judiciously.
An appellate Court has the power to interfere with the award of damages by a trial Court. However, in order to justify a reversal or an interference with the amount of damages awarded by trial Court, it will be necessary for the appellate Court to be convinced that-
(a) The trial Court acted upon a wrong principle of law;
(b) The trial Court acted under misapprehension of facts.
(c) The trial Court took into account irrelevant maters or failed to take into account relevant matter.
(d)Injustice will result if the appellate Court does not interfere
(e) The amount awarded is either ridiculously too high or too low.
(f) The amount was an entirely erroneous and unreasonable estimate having regard to the circumstances of the case.
See Eboh Vs. Akpotu (1968) SCNLR 305; James Vs. Mid Motors (Nig.) Ltd. (1978)11-12 SC 31; African Newspaper (Nig) Plc. (2015)3 NWLR (Pt. 1447)464 at 475-476 and Sun Publishing Ltd. Vs. Aladinma Medical Ltd. (2016)9 NWLR (Pt. 1518) 557.
In the instant case although the trial Court considered the circumstances of the libel and the impact of the libelous publication on the reputation of the respondent before reaching the decision to award the sum of N10,000,000.00 (N10 Million) as damages, the sum in my view is too high. In the circumstance it is reduced to five million naira only.
Issue five is resolved in favour of the appellant. The appeal succeeds partially in respect of the award of damages only. The appeal is dismissed substantially. Judgment of the lower Court in suit No. PLD/J/400/2003 is hereby affirmed. Costs of N100,000.00 is awarded for the respondent against the appellants.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Tani Yusuf Hassan, JCA. His Lordship has ably cohsidered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusion reached therein. I only wish to comment on the first issue for determination agitated by the parties in this appeal.
The first issue for determination canvassed by the parties was as to the competence of the action filed by the Respondent, as plaintiff, in the lower Court. Counsel to the Appellants canvassed that the action was incompetent on two grounds
(i) that the writ of summons was served on the Appellants, as defendants, out of jurisdiction and that, by the Rules of the lower Court, leave of Court was required to issue a writ for service out of jurisdiction and that while the writ was signed and issued by the Judge on the 7th of November, 2003, the motion ex-parte seeking for leave to issue the writ of summons was granted on the 11th of November, 2003, after the writ had been issued and that as such the writ of summons served on the Appellants was issued without leave of Court. Counsel further contended under the first ground that the writ of summons served on the Appellants was also not endorsed as required by Sections 97 and 99 of the Sheriffs and Civil Process Act; and
(ii) that the writ of summons was not signed by Counsel to the Respondent as required by Sections 2 and 24 of the Legal Practitioners Act.
The records of appeal show that the issue of the incompetence of the writ of summons was not raised by the Appellants in the lower Court, and that neither of the two grounds upon which it is predicated on in this appeal was canvassed nor argued before the lower Court. The records of appeal show that upon being served with the writ of summons, the Appellants entered appearance, filed their pleadings, and contested the case on the merits from start to conclusion and judgment. It is correct that Rules of the High Court of Plateau State required that a writ of summons for service on a defendant outside the territorial jurisdiction of the Plateau State High Court shall be issued only with leave of Court.
It is also correct that Sections 97 and 99 of the Sheriffs and Civil Process Act state that such a writ of summons shall be endorsed with a notice stating the State it was issued in and also the State it is to be served in and that the defendant to be served has not less than thirty days within which to enter appearance. The question is where there is non-compliance with these provisions, what is the effect on the writ of summons so issued and served.
At a point in time there was so much confusion on the issue and this was brought about by the different decisions of the Supreme Court on the point. These were the decisions in Skenconsult (Nig) Ltd Vs Ukey (1981) 1 SC 6, Ezomo Vs Oyakhire (1985) 1 NWLR (Pt 2) 195, Nwabueze vs Okoye (1988) 4 NWLR (Pt 91) 664, Adegoke Motors Ltd vs Adesanya (1989) 3 NWLR (Pt 109) 250, and NEPA vs Onah (1997) 1 N WLR (Pt 484) 680. However, in Odu’a Investment Co. Ltd Vs Talabi (1997) 10 N WLR (Pt 523 1, the Supreme Court constituted a full panel of seven
Justices to consider the issue and to reconcile its conflicting decisions on the issue and the decision of the Court, by a majority of six to one, was read by Ogundare, JSC. The learned Justice stated at page 52 C-F thus:
“From all I have been saying, my answer to the question set out in this judgment, therefore, is that non-compliance with Section 97 and/or Section 99 of the Sheriffs and Civil Process Act and the rule of Court requiring leave of the Court or a Judge for a writ to be served out of jurisdiction renders the writ and/or service of it voidable and the defendant who complains of such non-compliance is entitled ex debitio justitiae to have same set aside as was done in Skenconsult, Nwabueze and NEPA, provided he has not taken fresh steps in the matter which will amount to a waiver of the irregularity complained of. Where the latter is the case, his application to set aside must be refused. I need point out, for the avoidance of doubt, that the power to set aside is without prejudice to the power of the Court to allow, in appropriate cases, such amendments to be made and to make such order dealing with the proceedings generally as it thinks fit.
Turning to the case on hand, the appellant from the various steps it took in the proceedings after service on it of the writ of summons cannot now be heard to complain of defects in the issue and service of the writ. It is too late in the day to do so. He has waived his right to complain. The trial must go on. Technicalities are a blot upon the administration of the law and the Courts have moved a long way from allowing them to make an ass of it and dent the image of justice.”
In other words, the position taken by the full panel of the Supreme Court was that non-compliance with the provisions of the High Court Rules and the Sheriffs and Civil Process Act only renders the writ voidable, not void, and that such a writ will be voided at the instance of a defendant who acts timeously and before further steps are taken the matter. The decision of the full panel of seven Justices of the Supreme Court not been surpassed or altered by another full panel of seven Justices of the Supreme Court and thus remains the law till date ? Zakirai v. Muhammad (2015) LPELR 40387(CA). The Appellants having filed processes before the lower Court and in the proceedings cannot be heard to now complain about lack of leave to issue the writ and/or of non-endorsement of the writ as required by Sections 97 and 99 of the Sheriffs and Civil Process Act.
On the second ground of the contention, the law is settled beyond per adventure that the practice of law in Nigeria is the exclusive preserve of legal practitioners that have formally qualified to practice law in the country and, by the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act, these are the persons whose names are listed on the Roll of Barristers and Solicitors in the Supreme Court. The Supreme Court has, in interpreting the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act in a long line of cases, stated and reiterated this fact and has opined that since the practice of law includes the drafting and signing of Court processes, only the persons so listed on the Roll of Barristers and Solicitors can sign Court processes for filing in our Courts, and that the only exception is where processes are signed by a litigant who chooses to represent himself.
Thus, the law is that all Court processes signed in the name of a law firm without specifically stating thereon the name of the individual legal practitioner who appended the signature on behalf of the law firm are null and void because a law firm is not one of the persons listed on the Roll of Barristers and Solicitors in Nigeria ? Okafor Vs Nweke (2007) 10 NWLR (Pt 1043) 521, Oketade vs Adewunmi (2010) 8 NWLR 1195) 63, SLB Consortium Ltd vs NNPC (2011) 9 NWLR (Pt 1252) 317, Braithwaite Vs Skye Bank Plc (2013) 5 NWLR (Pt 1346) 1, First Bank of Nigeria Plc Vs Maiwada & Ors (2013) 5 NWLR (Pt 1348) 444, Alawiye Vs Ogunsanya 2013) 5 NWLR (Pt 1348) 570, Minister of Works and Transport, Adamawa State vs Yakubu (2013) 6 NWLR (Pt 1351) 481, Okarika vs Samuel (2013) 7 NWLR (Pt 1352) 19.
The Supreme Court has stated severally that to constitute a proper signing of a Court process, it must carry the signature or mark of the legal practitioner whose signed it and that name of the said legal practitioner must be clearly indicated on the process as the person who affixed the signature or mark and that once it cannot be said who signed the process, then it is incurably bad Williams Vs Adold/Stamm International (Nig) Ltd (2017) LPELR 41559(SC), GT Bank Plc vs Innoson Nigeria Ltd (2017) LPELR 42368(SC), Nnalimuo vs Elodumuo (2018) LPELR 43898(SC). In SLB Consortium Ltd Vs NNPC supra, the Supreme Court further noted the signature of the legal practitioner on a Court process need not be anything special and the mere writing of the name of the legal practitioner can constitute a signature.
In the instant case, the writ of summons, as contained in the records of appeal, carries the name of the Counsel to the Appellant clearly written; it stated who the Counsel represents; and the name and address of the legal firm of Counsel. It also carries the signature of the Judge who issued the writ. There was no doubt as to the identity of the legal practitioner who took out the writ of summons and it was not in contest the identified legal practitioner is listed on the Roll of Barristers at the Supreme Court as someone entitled to practice law in Nigeria. The writ of summons met the essential requirements and satisfied the purpose of 2 (1) and 24 of the Legal Practitioners Act.
I endorse the deliberations on the other issues for determination contained in the lead judgment. I too find some merit in the appeal and I hereby allow it in part.
I affirm the judgment of the High Court of Plateau State delivered in Suit No PLD/J400/2003 by Honorable Justice L. C. Dakyen, Chief Judge, on the 14th of June 2012, save for the award of N10 Million as damages and which award is reviewed downwards to N5 Million. I abide the order on costs in the lead judgment.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I agree with the reasoning and conclusion in the lead judgment just delivered by my learned brother, TANI YUSUF HASSAN, JCA. I abide by the consequential orders contained therein including that on cost.
Appearances:
Nnaemeka AmaechinaFor Appellant(s)
Charles Obishai, SAN with him, Eric Goler, Miss Sabina Davou and Miss Blessing OchayiFor Respondent(s)
