WEEKLY INSIGHT AND COMMUNICATION NETWORK LIMITED & ANOR v. MR. FRANCIS GREEN PETER & ORS
(2019)LCN/12844(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2019
CA/C/190/2017
RATIO
COURT AND PROCEDURE: POWER OF THE COURT
“The law is settled that Courts have absolute power to look at the documents in their files and utilize them to support established facts. Thus, the learned counsel for the appellants is right that the trial court has abdicated its inherent power of making use of all evidence and materials placed before it. See AGBAISI V EBIKOREFE (1997) 4 NWLR (pt 502) 630, ADEBO V EXECUTIVE GOVERNOR OF OYO STATE (2018) LPELR ? 44734, UZODINMA V IZUNASO (NO 2) (2011) 17 NWLR (pt 1225) 30 at 90, EDIRU V F.R.S.C. (2016)4 NWLR (pt 1502) 209 and EDILCO (NIG) LTD V UBA PLC (2017) LPELR 42342.” PER MUHAMMED LAWAL SHUAIBU, J.C.A.
INTERPRETATION: MEANING OF LIBEL
“Libel is a defamatory publication in writing. It is a tort in which the writer or publisher attacks the reputation, integrity and fidelity of the victim of the publication. It is a slur, a stigma and a disparagement on the character of the victim. The effect, the victim of the libelous publication is looked upon as a societal misfit. He is slummed and disliked. In an action for libel, the plaintiff must therefore prove the following:- (a) That the publication was in writing (b) That the publication was false, (c) That the publication was published to some other person aside from the plaintiff and the defendant. (d) That the publication referred to the plaintiff and was defamatory of him, and (e) That the publication was by the defendant. See NSIRIM V NSIRIM (1990) 3 NWLR (pt 138) 285, DIN V AFRICAN NEWSPAPERS OF NIGERIA LTD (1990) 3 NWLR (pt 139) 393, ONYEJIKE V ANYASOR (1992) 1 NWLR (pt 218) and U.B.N. LTD V OREDEIN (1992) 6 NWLR (pt 247) 355.” PER MUHAMMED LAWAL SHUAIBU, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
1. WEEKLY INSIGHT AND COMMUNICATION NETWORK LIMITED
2. DAVID AUGUSTINE – Appellant(s)
AND
1. MR. FRANCIS GREEN PETER
2. MRS. AFFIONG ETIM OTON
3. MR. GREEN PETER IKPE
4. COMMISSIONER OF POLICE, AKWA IBOM STATE – Respondent(s)
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment):
On Wednesday, 18th February, 2009, the Defendants (now appellants) published an article in their weekly insight captioned ?Evil Son Arranges kidnappers to Abduct mother?. The article at page 6 stated how police detective thought that it was the 1st respondent herein that was the real instigator of a plan to abduct his mother so as to give to the concerned gang the purported five million naira sent to the mother by her daughter abroad.
The 1st & 3rd respondents therefore filed an action on libel against the appellants in the High Court of Akwa Ibom State claiming the sum of twenty million naira damages and retraction of the said publication.
Pleadings were ordered and exchanged. In paragraphs 8 – 12 of the amended statement of claim, the 1st & 3rd respondents as plaintiffs averred as follows:-
8. The words complained of where contained both at the front and sixth pages of the first defendant and were circulated for public consumption of which the 1st plaintiff saw and bought a copy therefrom.
9. The words, complained of were written falsely and maliciously without authorization from both the 2nd and 3rd plaintiffs and/or legal backing like a judgment of a Court of competent jurisdiction to that effect but they were published by the Defendants without thorough investigation as to the veracity of the said words.
10. The said words were published to the entire public across Akwa Ibom State and Nigeria at large.
11. (a) By the words complained of, the 1st plaintiff is portrayed to be a criminal who committed a criminal offence of attempted abduction, stealing, kidnapping and robbery…
(b) That the 1st plaintiff is a person who cannot be entrusted with money and/or any valuable items.
(c) That the 1st plaintiff is not competent to hold a public office as he had contested the last councillorship election in his word and failed for he would be disqualified at the next election for reasons stated above.
12. The 1st plaintiff neither admitted nor confessed to the commission of the said abduction or kidnapping to the police or Defendants. There is no statement to the police that the 1st plaintiff ever admitted or confessed to them except by way of manipulation, dectoring or under duress for the 1st plaintiff is a lettered person.
Both the 1st and 2nd appellants as well as the 4th respondent denied the claims. In paragraphs 3 ? 5 of their statement of defence, 1st and 2nd appellants averred as follows:-
3. The Defendants denies the averment in paragraph 6 of the statement of claim of the plaintiffs and state that the 1st plaintiff was indeed arrested on the 5th February 2009 by the police on an allegation of plans to kidnap the 2nd plaintiff who incidentally is the mother of the plaintiff so as to extort the sum of five million Naira from the sister who resides abroad. The complaint was made by one Ifiok James Usanga of No. 8 Okokon Etuk Street, Uyo. The statement of the complainant is hereby pleaded and shall be relied upon at the trial.
4. The Defendants further stated that the 1st plaintiff made statement to the police where he admitted committing the said crime and was granted bail but instead of reporting back to the police he absconded. The statement of the 1st plaintiff to the police is here pleaded and be relied upon at the trial.
5. In further answer to paragraph 6 of the statement of claim of the plaintiffs, the defendants state that police paraded suspects who are in police custody including the 1st plaintiff to the press wherein the 2nd defendant interviewed the 1st plaintiff and he confessed to having committed the crime.
On the part of the 3rd respondent, it averred in paragraphs 3 ? 6 of the 3rd defendant?s statement of defence averred:-
3. The 3rd Defendant denies paragraph 7 of the amended statement of claim. In answer thereto; the 3rd defendant states that on or about 5th February, 2008 one Ifiok James Usanga of No.8 Okokon Etuk Street, Uyo informed the 3rd Defendant that the 1st plaintiff conspired with him, asked him to arrange with some boys so as to kidnap the 2nd plaintiff with a view of getting N5 million ransom from the 2nd plaintiff children staying abroad. The 3rd Defendant will at the trial rely on the extract of the report from his crime diary.
4. Following the report, the case was incidented and referred to the corporal Edet Owowo and others for investigation. The investigation officers namely Edet Owowo, Young Ushie and others left for Okokon Etuk Street where the 1st plaintiff and the said Ifiok James Usanga were awaiting the arrival of the rest of the kidnappers. Both the 1st plaintiff and the said Ifiok James Usanga were arrested and taken to the station.
5. At the station, the 1st plaintiff and Ifiok James Usanga made statements both confessing to the crime. The 3rd defendant will at the trial rely on the statements made by the 1st plaintiff and Ifiok James Usanga.
6. The 3rd defendant denies paragraph 9 and representation of the facts as they were revealed at the end of police investigation.
The matter proceeded to trial with the 1st ? 3rd respondents calling four witnesses and tendering the said publication which was admitted and marked Exhibit ?A?. The appellants called one witness and upon the 3rd respondent raising a no case submission, the claim against the 3rd respondent was accordingly dismissed and his name struck out by the trial Court. The learned trial judge after considering the evidence before him entered judgment against the appellants and in favour of 1st respondent at pages 205 ? 206 of the record of appeal as follows:-
In the end, this case succeeds in part. Accordingly, the defendants be and are hereby directed to forwith retract the said libelious publication and give the retraction as much prominence as they gave the original news report in the front page of their tabloid, The defendant shall without delay pay to the 1st plaintiff damages which I assess at N3,000,000.00 (Three Million Naira) only in view of the times we have found ourselves in this country and the fact that our currency is now worthless on account of the economic recession and which free fall is continuous, the 2nd and 3rd plaintiffs case fails and is hereby dismissed. Cost of action in favour of the 1st plaintiff above is assessed and fixed at N50,000 (Fifty Thousand Naira) only against the defendants.
Dissatisfied with the judgment; the appellants appealed to this Court through a notice of appeal filed on 26/10/2016. The initial notice of appeal contained two grounds but by leave of this Court granted on 6/4/18, the appellants amended their notice of appeal which contains five grounds.
Briefs of argument were filed and exchanged.
Appellants also filed a reply brief. Appellants formulated the following four issues for determination:-
1. Whether the trial Court properly evaluated the evidence as presented by the parties in this case to arrive at the decision of finding the appellants liable when the 1st ? 3rd Respondents evidence lacks the ingredients required for the Court to so find. (Distilled from ground 1).
2. Whether the Writ of summons that originated this suit was properly signed according to law to have invoked the adjudicating power of the trial Court (Distilled from ground 2).
3. Whether a Court of competent jurisdiction is precluded from looking at the Courts record even after a party had been struck out. (Distilled from ground 3).
4. Whether the 1st respondent in the circumstances of this case and facts lead at the trial, is entitled to damages if he is, whether the sum of N3,000,000.00 awarded by the trial judge is not grossly excessive to warrant the interference of the Court of Appeal (Distilled from ground 4).
The respondents have tangentially adopted the appellants? issues for determination.
On issue Nos.1 & 3 learned counsel for the appellants, Chief Godwin O. Effiong while referring to the findings of the trial Court at page 204 of the record to wit, ?consequently, this Court agrees with the plaintiffs that aside from the fact, the said words are defamatory in their ordinary and material meaning the same were carelessly receivable?, submitted that the forgoing facts were never offered in evidence and thus different from the case of the respondents. He referred to ADDAH V UBANDAWAKI (2015) ALL FWLR (pt. 775) 200 at 214.
It was also the contention of the appellants that the amended statement of claim was merely filed without obtaining the required leave of Court sought and obtained. The said process was therefore abandoned and a Court cannot on its own get into such an abandoned process to grant any relief or even comment thereon. He referred to SOCIETY BIC S.A. V CHARZIN INDUSTRIES LTD (2014) ALL FWLR (pt 739) 1212 at 1244 in submitting that the trial Court anchoring its judgment on the said abandoned process has occasioned a miscarriage of justice.
Still on the evidential value of the witnesses of the 1st – 3rd respondents, learned counsel submitted that words in themselves are not defamatory and unless such words lower the integrity of the person in the eyes of the reasonable public, same cannot be defamatory. He submitted that it is inconceivable for the trial Court to disbelieved pw2, pw3 and pw4 and then found for pw1. And that in the absence of evidence showing that the words complained of have lowered the plaintiffs in the eyes of others, the findings of the trial Court is perverse. Also had the trial Court looked at the other processes in the Court’s file, it would have found that extra-judicial statement of the 1st respondent is in tandem with the appellants’ defence.
Dealing with the admissibility of the weekly insight Newspaper by the trial Court, learned counsel submitted that same being a public document, it is required to be produced from proper custody relying on Section 148 of the Evidence Act, 2011 and the case AFOLABI V ALAREMU (2013) ALL FWLR (pt 691) 1621 in urging this Court to expunge the said publication, Exhibit ‘A’.
Learned counsel for the 1st – 3rd respondents, Effiong S,. Udofia on his part contended that the statement of claim superseded the Writ of summons and that the trial Court had evaluated the evidence of each of the respondents before arriving at its decision. He thus submitted that where the words complained of are defamatory in their natural and ordinary meanings, the plaintiff has no legal duty to lead any evidence to show additional defamatory meaning as understood by persons possessing same particular facts. He referred to ILOABACHIE V ILOABACHIE (2005) LRCN 1775.
On the trial Court’s failure to look at its record particularly the documents of the 4th respondent herein, learned counsel submitted that having not objected to the striking out of the name of the 4th respondent herein, in the suit, whatever right they might have had in retaining the name, same had been waived and could not be resuscitated. He referred to NWADINOBI V NICC (NIG) LTD (2016) 1 NWLR (pt 1494) 427 at 448 and ADELEYE V STATE (2015) 3 NWLR (pt 1446) 229 at 246 to the effect that a Court cannot in chambers look for evidence to establish a fact which was not prove during trial.
On the wrongful admission of Exhibit ‘A’ learned counsel argued that where a document is admissible under certain conditions and same is admitted with procedural defect but without objection, the appeal Court will not upset the trial Court?s decision solely on ground of inadmissibility of such document.
On the appellants’ complaint of failure to obtain the leave of Court to validate the amended statement of claim; learned counsel contended that the issue of miscarriage of justice will not avail the appellants as the original statement of claim subsists. And the major feature of the supposed amendment was to emphasize on some aspects of the case. Thus, the appellants were not misled in any way.
The appellants’ main complaints on issues No.1 and 3 are the failure of the trial Court to evaluate the evidence presented by the parties and also overlooking crucial pieces of evidence alleging that the evaluation by the trial Court was skewed in favour of the 1st respondent. It is no doubt the primary duty of the trial Court to evaluate the evidence produced by the contending parties in support of their contention before arriving at its decision in one way or the other. It does so by putting the totality of the acceptable testimony adduced by both parties on an imaginary scale with the evidence of the plaintiff on one side while that of the defendant is put on the other side. The Court then weighs them together to see which is heavier not by number of witnesses called by each party, but by the quality or probative value of the testimony of those witnesses. Where the trial Court abdicates this sacred duty or when it demonstrates that it had not taken proper advantage of having heard and seen the witness testify, evaluation of evidence is said to be at large. See EBBA V OGODO (2000) FWLR (pt 27) 2094 at 1861, SHA JNR V KWAN (2000) 8 NWLR (pt 670) 685 and AYUYA V YONRIN (2011) ALL FWLR (pt 583) 1842 at 1846.
I have reproduced the pertinent averments of the parties pleadings and the plank of the respondents’ case was that by the words complained of in the appellant?s publication, Exhibit A, the 1st respondent was portrayed to be a criminal who committed a criminal offence of attempted abduction, stealing, kidnapping and robbery.
Libel is a defamatory publication in writing. It is a tort in which the writer or publisher attacks the reputation, integrity and fidelity of the victim of the publication. It is a slur, a stigma and a disparagement on the character of the victim. The effect, the victim of the libelous publication is looked upon as a societal misfit. He is slummed and disliked.
In an action for libel, the plaintiff must therefore prove the following:-
(a) That the publication was in writing
(b) That the publication was false,
(c) That the publication was published to some other person aside from the plaintiff and the defendant.
(d) That the publication referred to the plaintiff and was defamatory of him, and
(e) That the publication was by the defendant.
See NSIRIM V NSIRIM (1990) 3 NWLR (pt 138) 285, DIN V AFRICAN NEWSPAPERS OF NIGERIA LTD (1990) 3 NWLR (pt 139) 393, ONYEJIKE V ANYASOR (1992) 1 NWLR (pt 218) and U.B.N. LTD V OREDEIN (1992) 6 NWLR (pt 247) 355.
The learned trial judge had rejected the evidence to pw2 – pw4 but relied on the evidence of PW1 and DW1 in arriving at his decision. He concluded at page 199 of the record of appeal thus:-
In this case and I have already found and it is not in dispute that the said news report was published in a permanent form (Exhibit ?A?). It is not equally a matter for argument that the publication refers to the 1st plaintiff. I need not emphasize that to publish such words and describe the 1st plaintiff as an ?Evil son? conveys a defamatory meaning and any reasonable member of the society who reads the news report will ordinarily conclude that the 1st plaintiff is indeed evil. The news report is capable, to lower the 1st plaintiff in the estimation of right thinking members of the society who read it. The same is also capable to expose him to odium ridicule and contempt.
Hitherto, at page 198 of the record of appeal, the learned trial judge held as follows:-
I think it is not in dispute at all that the 1st plaintiff had been arrested by the police. The arrest of course, had to do with the alleged plan by the 1st plaintiff and a criminal gang to kidnap the mother of the 1st plaintiff (i.e the 2nd plaintiff) for a ransom.
In the light of the above, did the 1st respondent discharge the burden placed on him in law and was the learned trial judge right in holding that the said publication was capable of exposing the 1st respondent to ridicule and contempt? Having found as a fact that the arrest of the 1st respondent was as a result of the alleged plan by him and a criminal gang to kidnap his mother for ransom, that undoubtedly in my view negates the trial Courts findings of malice and falsity in the said publication.
Learned counsel for the appellants also argued that the refusal by the trial Court to look at the statements of the 1st respondent and that of his accomplice in its record constitute a grave miscarriage of justice.
I have shown that the trial Court had established the facts of the arrest of the 1st respondent and another member of the criminal gang in respect of a plan to kidnap the 2nd respondent for a ransom based on the evidence before it.
The law is settled that Courts have absolute power to look at the documents in their files and utilize them to support established facts. Thus, the learned counsel for the appellants is right that the trial court has abdicated its inherent power of making use of all evidence and materials placed before it. See AGBAISI V EBIKOREFE (1997) 4 NWLR (pt 502) 630, ADEBO V EXECUTIVE GOVERNOR OF OYO STATE (2018) LPELR ? 44734, UZODINMA V IZUNASO (NO 2) (2011) 17 NWLR (pt 1225) 30 at 90, EDIRU V F.R.S.C. (2016)4 NWLR (pt 1502) 209 and EDILCO (NIG) LTD V UBA PLC (2017) LPELR 42342.
The 1st respondent’s extra judicial statement which was touchstone of the trial Court?s findings, formed part of the evidence before the lower Court. The said statement and that of Ifiok James Usanga were not extrinsic to the trial Court and its proceedings. Therefore, the trial Court was firma terra, in law, not to have overlooked that crucial piece of evidence.
On the admissibility of the publication, Exhibit ‘A’, I cannot but agree totally with the submission that the said newspaper and or magazine, though private but same fall within the meaning of public document by virtue of Section 102 of the Evidence Act read together with Section 2 (2) (a) of the National Library Act, Cap. N56 Laws of the Federation, 2004.
The law is firmly settled that a document is presumed genuine when it is produced from proper custody and is substantially in the proper form required by law. See ATUCHUKWU V ADINDU (2012) 6 NWLR (pt. 1297) 534.
The Supreme Court in TORTI V UKPABI (1984) 1 SCNLR 214 at 227 ? 228 has held the view that where a document is admissible, the issue of proper custody is irrelevant to the issue of admissibility.
Now the central question is whether Exhibit ?A? is admissible in the first place.
I have held that Exhibit ‘A’ is a public document which ought to have been produced from proper custody by virtue of Section 156 of the Evidence Act, 2011. And had the trial Court addressed its mind adequately to the issue of proper custody of Exhibit ‘A’, it would certainly have come to the conclusion that the said publication was inadmissible.
The appellants have in the course of trial, objected to the admissibility of Exhibit ‘A’ but same was overruled. It is however the law that when a document is inadmissible in all events; objection, or no objection it remains inadmissible and an appellate Court has the inherent jurisdiction to exclude it. Regrettably, the ruling on the wrongful admission of Exhibit ?A? was neither appealed against nor been made a ground of appeal in the instant case. This Court can only expunge an Exhibit suo motu after hearing parties on the issue.
Whereas in this case, the trial Court had failed in its duty to properly consider the evidence placed before it and which led it to draw wrongful conclusions from the evidence it accepted, the appeal Court will be perfectly justified in re-evaluating and reconsidering the whole evidence in order to arrive at a just decision. An amended statement of claim filed but not moved is liable to be struck out by the trial Court. See ALECHENU V OSHOKE (2002) FWLR (pt 85) 281 at 288.
On issue No.2, the main contention is whether the writ of summons that originated the suit was properly signed according to law. A Court is competent to hear and determine a case when:-
(a) It is properly constituted as regards the number and qualification of its members of the Bench, and no member is disqualified for one reason or another,
(b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction, and
(c) The case coming up before the Court was initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See MADUKOLU V NKEMDILIM (1962) 2 NSCC 374.
By virtue of Order 6 Rule 3 of the Akwa Ibom State High Court (Civil Procedure) Rules 2009, a plaintiff or claimant suing on his own or through a legal practitioner, shall sign and stamp each copy of the originating process. A careful perusal of the originating writ of summons in the instant case at pages 2-3 at the record of appeal leaves no one in doubt that same was neither signed by the 1st & 3rd respondents nor their legal practitioners.
Learned counsel for the 1st ? 3rd respondents has strenuously argued that an appeal being a continuation of trial, the question of non signing of the originating process is a fresh issue and as such could not be raised on appeal without leave of Court. The law is trite that an issue of jurisdiction is fundamental to adjudication and can be raised at any stage in the proceedings even for the first time in the Supreme Court. I therefore agree with the submission of the learned counsel for the appellants in their reply brief that the argument that the objection ought to have been taken before the trial Court is erroneous since the issue involved is not a matter of irregularity in procedure but of substantive law i.e an issue of jurisdiction of the Court to hear and determine the matter as constituted. See GALADIMA V TAMBAI (2000) FWLR (pt 14) 2369. In SLB CONSORTIUM LTD V NNPC (2011) ALL FWLR (pt 583) 1902 at 2904 the Supreme Court was emphatic that once it cannot be said who signed a process it is incurably bad, and the rules of Court that seem to provide a remedy are of no use as a rule of Court cannot override the law.
See also OKAFOR V NWEKE (2007) ALL FWLR (pt 368) 1026 ALAWIYE V OGUNSANYA (2013) ALL FWLR (pt 665) 800, and R. A. OLIYIDE & SONS LTD V O. A. U. ILE IFE (2018) 8 NWLR (pt 1622) 564. It thus follows that the trial Court lacked the jurisdiction to hear and determine the suit. An issue of jurisdiction is not a fresh issue and can be raised at any time by various means.
Issue No. 4 deals with proportionality of the damages awarded to the 1st respondent by the trial Court. But having held the view that the non signing of the Writ of Summons has deprived the trial Court of the requisite jurisdiction and that the trial Court has failed to properly evaluated the evidence adduced before it, all the four issues are invariably resolved in favour of the appellants and against the respondents.
In the result, I allow the appeal and strike out suit NO HU/94/2009 filed at the High Court of Akwa Ibom State sitting at Uyo. The 1st respondent shall pay costs assessed at N100,000.00 to the appellants.
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to read, in draft, the concise leading judgment delivered by my learned brother: Muhammed L. Shuaibu, JCA. I am in total agreement with the reasoning and conclusion in the judgment. I, too, allow the appeal. I abide by the consequential orders decreed in the leading judgment.
Appearances:
Chief Godwin O. Effiong with him, John Ekpe, Esq.For Appellant(s)
Effiong Udofia, Esq. with him, Iniobong Williams, Esq. 1st – 3rd RespondentsFor Respondent(s)
