(2016) LPELR-40784(CA)

Transcription

1 EZEGBO & ANOR v. IGBOKWE CITATION: JIMI OLUKAYODE BADA HAMMA AKAWU BARKA In the Court of Appeal In the Benin Judicial Division Holden at Benin ON WEDNESDAY, 15TH JUNE, 2016 Suit No: CA/B/408/2010 UGOCHUKWU ANTHONY OGAKWU 1. CHIEF SIR A.O. EZEGBO 2. CHIEF DOM C. OKEKE Before Their Lordships: Between And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) GEORGE C. IGBOKWE - Respondent(s) RATIO DECIDENDI 1. ACTION - VENUE: Proper venue for the commencement of an action for libel "In an action for libel the proper venue for adjudication of the matter is where the cause of action arose i.e. where the alleged libel was published and not necessarily where the defendant resides. Furthermore, in order to ascertain where the libellous matter is published, recourse must be made to the statement of claim."per BADA, J.C.A. (P. 15, Paras. E-F) - read in context

2 2. APPEAL - UNAPPEALED FINDING(S)/DECISION(S): Effect of unappealed finding(s)/decision(s) of court "It is the law that any finding of fact made by a trial Court for which there is no appeal remain valid and subsisting. Put in another way, where a trial Court makes a crucial findings of fact on an issue before it and upon which the Judgment of the Court is made and such findings are not appealed against or challenged on appeal, such findings remain valid and subsisting. Such findings of fact made by the trial Court and in which there is no appeal are deemed admitted by the Appellant or the party against whom they were made and the appellate Court will be right to act on it. See the following cases: - - AMOSHINA VS. STATE (2011) 14 NWLR Part 1268 Page 530; - L.H.A.B.U.M.B. VS ANYIP (2011) 12 NWLR Part 1260 Page 1; - EBENIGHE VS. ACHI (2011) 2 NWLR Part 1230 Page 65; - S.P.D.C.N. LTD VS. EJEBU (2011) 17 NWLR Part 1276 Page 324; - C.P.C. VS. INEC (2011) 18 NWLR Part 1279 Page 493." Per BADA, J.C.A. (Pp , Paras. D-B) - read in context 3. APPEAL - INTERFERENCE WITH AWARD OF DAMAGES: Circumstances in which an appellate court will interfere with award of damages made by a trial Court "In the case of C Per BADA, J.C.A. (Pp , Paras. A-C) - read in context 4. APPEAL - INTERFERENCE WITH AWARD OF DAMAGES: Circumstances in which an appellate court will interfere with award of damages made by a trial Court "For an appellate Court to interfere with the exercise to the Lower Court's discretion in the award of damages, it must be shown that:per OGAKWU, J.C.A. (P. 73, Paras. A-F) - read in context 5. COURT - JURISDICTION: What determines jurisdiction of Court to entertain a cause/matter "Similarly in BABINGTON-ASHAYE VS. E.M.A.G. ENT (NIG) (2011) 10 NWLR Part 1256 Page 479. This Court held among others that:- ''Jurisdiction is determined by the plaintiff's claim. In other words, it is the claim before the Court that has to be looked at or examined to ascertain whether it comes within the jurisdiction of the Court. The Court turns to the claim endorsed on the writ of summons or particulars of claim where one exists or a statement of claim. It is from one or more of these processes filed by the plaintiff that cause of action which is described as a bundle or aggregate of facts in relation between the parties which the Court will recognize as enabling the Plaintiff to enforce the claim against the Defendant." See also DAIRO VS U.B.N. (Supra) Page 99." Per BADA, J.C.A. (Pp , Paras. F-D) - read in context

3 6. DAMAGES - ASSESSMENT OF DAMAGES: Factors to be considered in assessing damages in libel cases "In considering the quantum of damages to be awarded to a successful party in a libel suit, the trial Courts will take into consideration the nature of the libel published among other things. See the following cases:- - MAYANGE VS. PUNCH (Supra); - SONIBARE VS. SOLEYE (Supra); - EJABULOR VS. OSHA (Supra)."Per BADA, J.C.A. (P. 44, Paras. B-D) - read in context

4 7. DAMAGES - ASSESSMENT OF DAMAGES: Factors to be considered in assessing damages in libel cases "Now coming to the general principle in assessment of damages for libel, I am of the view that it is clearly within the absolute province of the trial Judge to determine, taking into consideration the peculiar circumstances of each case and the evidence led therein and the essence of award of damages. I am fortified in the above view in view of the decision of the Supreme Court in SONIBARE VS. SOLEYE (SUPRA) where Ogbuagu JSC held as follows at page 284 Paragraph G to C: Whatever method of assessment is employed, a great part of the exercise of assessment is arbitrary but the entire exercise must at all stages have reference to the evidence in the case and the subject matter of the action. The award must be adequate to repair the injury to the Plaintiff's reputation which was damaged. The award must be such as would atone for the assault on the Plaintiff's character and pride which were unjustifiably invaded and it must reflect the reaction of the law. Also in EJABULOR VS. OSHA (SUPRA) the Supreme Court per Akpata JSC held as follows:- There is no doubt that if it had occurred to him that the action was based on libel he would have found that the Court of Appeal proceeded on the right principles in assessing damages. That Court was satisfied that the principle enumerated at Paragraph 1358 page 558 of Gatley on Libel and Slander was valid. The learned author made the point that the Court or jury in assessing the conduct of the Plaintiff, his position and standing, the nature of the libel, the mode and extent of the publication, the absence or refusal of any retraction or apology and the whole conduct of the Defendant from the time when the libel was published down to the very moment of their verdict. The Court of Appeal correctly took into consideration the fact that the Plaintiff is a recognized traditional ruler, the fact that the Defendant was unrepentant and that throughout trial repeated the offending words and maintained that they were true. Furthermore on this issue, in MAYANGE VS. PUNCH (SUPRA), the Court in an avowed determination to punish unjust publication of libel against innocent citizen held as follows: - per Muhammed JCA at page 586; In awarding damages in libel case, the Court will take among others the following factors into consideration- (a) The Plaintiff's position in the society; (b) Whether the defendant was reckless in publishing the libel; (c) The conduct of the defendant from the time of the publication to the time judgment was delivered; (d) The volumes of circulation; (e) Pecuniary loss or social disadvantage and the injury to the appellant's feelings; (f) Whether or not the defendant has published a retraction or an apology. Per Orah JCA at page that:-per BADA, J.C.A. (Pp , Paras. F-D) - read in context

5 8. DAMAGES - ASSESSMENT OF DAMAGES: Assessment of damages in a libel action "Generally, an order for damages for defamation is at the discretion of the trial Court. The assessment does not depend on strict legal rules. The discretion of the Court in awarding damages is limited by the usual caution of prudence and remoteness of damages. The award of damages in libel is not limited to any specific pecuniary loss but the damage resulting from an unjustifiable attack on the reputation of a person defamed may inure throughout the lifetime of the person. See ALAWIYE VS. OGUNSANYA (2003) 39 WRN 140 AT 159. A succinct statement on the principles for award of damages in an action for libel is as stated by Coker, JSC is HIS HIGHNESS UYO I vs. NIGERIAN NATIONAL PRESS LIMITED IN RE: FELIX EGWARE (1974) NSCC 304 at 307 as follows: Whatever method of assessment is employed, a great part of the exercise of assessment must be arbitrary, but the entire exercise must at all stages have reference to the evidence in the case and the subject matter of the action. Such an award must be adequate to repair the injury to the plaintiff's reputation, which was damaged; the award must be such as a would atone for the assault on the plaintiff's character and pride, which were unjustifiably invaded; and it must reflect the reaction of the law to the imprudent and illegal exercise in the course of which the libel was unleashed by the defendants. See also OFFOBOCHE VS. OGOJA LOCAL GOVERNMENT (Supra) at 20. In assessing damages in libel cases the Court is entitled to take into consideration the conduct of the plaintiff, his position and standing, the nature of the libel, the mode and content of the publication, the absence or refusal of any retraction or apology and the whole conduct of the defendant from the time when the libel was published down tot eh very moment of the judgment. See NEZAN vs. BENUE PRINTING Per OGAKWU, J.C.A. (Pp , Paras. E-D) - read in context 9. TORT - DEFAMATION: Difference between libel and slander "The tort of Defamation is either libel or slander, the difference being that the former is written while the later is spoken."per BADA, J.C.A. (P. 10, Paras. D-E) - read in context 10. TORT - LIBEL: Ingredients of libel "The essential ingredients of libel are as follows:- 1. The words complained of must have been written; 2. The Publication must be false; 3. The words must be defamatory or convey defamatory imputation; 4. The words must refer to the Plaintiff; 5. It must be the Defendant that published the words; 6. The onus is on the Plaintiff to prove that he was the one referred to in the alleged libel. See the case of GUARDIAN NEWSPAPERS LTD Per BADA, J.C.A. (Pp , Paras. E-B) - read in context

6 11. TORT - DEFAMATION: Ingredients which a plaintiff must prove to succeed in an action for defamation "In order to succeed in a tort of defamation i.e. libel, the Plaintiff must plead and prove all the three fundamental ingredients of the tort of defamation i.e. (i) That there is a publication of the material complained of by the Plaintiff; (ii) That the publication refers to no other person but the Plaintiff conclusively; (iii) That the publication is defamatory of the Plaintiff. See SKY BANK VS. AKINPELU (2010) 187 LRCN Page 1 at 110 particularly at 122." Per BADA, J.C.A. (P. 11, Paras. B-D) - read in context 12. TORT - LIBEL: Whether libel is actionable per se "Publication is the live wire of an action in libel. And the sting in an action for libel is the publication of an offensive article to a third party. It is actionable per se once proved. See the following cases:- - ILOABACHIE VS. PHILIPS (2000) 14 NWLR Part 686 Page 43; - NITEL LTD VS. TUGBIYELE (2005) 3 NWLR Part 912 Page 334; - DAIRO VS. UBN PLC (Supra)."Per BADA, J.C.A. (P. 15, Paras. B-D) - read in context 13. TORT - LIBEL: Modes of publication of libel "I am fortified in my view above by the decision of the Supreme Court in NSIRIM VS NSIRIN (Supra) Page 285 where it was held per Obaseki JSC at 297 as follows:-...the material part of the cause of action in libel is not the writing but the publication of the libel the act of publishing the libellous matter constitutes the cause of action... What then is publication? By publication is meant the making known of the defamatory matter to some persons other than the person to whom it is written. From the above, it is plain that it is the place a libel is published that the cause of action arose...per BADA, J.C.A. (Pp , Paras. F-F) - read in context

7 14. TORT - LIBEL: Whether libel is actionable per se "There is no equivocation on the fact that libel is a wrong to which the law imputes general damages. Once a Plaintiff proves that libel has been published of him without legal justification, his cause of action is complete. He needs not prove that he has suffered any resulting actual damage or injury to his reputation as such damage is presumed. See - JONES VS. JONES (1916) 2 A.C Page 481 at GUARDIAN NEWSPAPERS LTD AND ANOR VS REV. PASTOR C.I. AJEH (2011) LPELR 1343 SC 234/2005. In this respect, I agree with the learned counsel for the Respondent submission that libel as with all other aspects of civil law, can only be proved by establishing that ingredients that constitute the cause of action which enables the plaintiff to be entitled to the relief claimed. See the following cases:- - CONCORD PRESS VS. OLUTOLA (Supra) Page OKOLO VS. MIDWEST NEWSPAPER CORP (1997) NSCC Page 11 - Z.P. INTERNATIONAL LTD VS. SAMOTECH (2007) 16 NWLR Part 1060 Page 315." Per BADA, J.C.A. (Pp , Paras. F-E) - read in context 15. TORT - LIBEL: Whether libel is actionable per se "It must be emphasised that libel is actionable per se and once it is proved, damage is presumed."per BADA, J.C.A. (P. 24, Para. C) - read in context 16. TORT - LIBEL: What a plaintiff must plead in establishing a claim of libel "In libel cases, the duty on the Plaintiff is limited to reproducing verbatim in his pleading, the whole article (or the particular passage thereof) complained of. Where the complaints of the Plaintiff relates to and can be fully determined by reference to a particular passage of an entire article, the law permits him to plead only that passage in line with the trite rule that pleadings must contain only material facts. In GUARDIAN NEWSPAPER VS. AJE (Supra), the Supreme Court restated the principles in clear terms when it held per Rhodes-Vivour JSC at page that: A Plaintiff who claims that an article is libellous of him must reproduce the whole article or the particular passage the Plaintiff complains of verbatim. No matter how long the article is it must be reproduced by the Plaintiff. In this case the Respondent reproduced verbatim the particular passage he complained of in his pleadings...see also OKAFOR VS. IKEANYI (Supra).''Per BADA, J.C.A. (Pp , Paras. B-A) - read in context

8 17. TORT - DEFAMATION: Test of a reasonable man in determining whether words used in a publication are defamatory "The question whether or not the words complained of are defamatory is a question of fact within the province and sole prerogative of the Judge to interprete and determine. In doing this, the Judge only ascribes the fair and natural meaning that would be given to the words by reasonable persons of ordinary intelligence. In LEWIS VS. DAILY TELEGRAPH LTD (1964) A.C. Page 234 it was held among others that... it is not necessary to go beyond the words themselves as where the Plaintiff has been called a thief or a murderer...also in ALAWIYE VS. OGUNSANYA (2004) 4 NWLR Part 864 Page 486 at 509 Paragraphs B - C, this Court per Omage JCA held that It is actionable... to utter words about a person which injure that person in his trade, profession, office or calling..."per BADA, J.C.A. (Pp , Paras. E- C) - read in context 18. TORT - LIBEL: Nature of justification as a defence to libel "One of the defences available to a defendant in an action for libel is that of justification. It is therefore a complete defence to an action for libel or slander that the defamatory imputation is true. The truth of the imputation is an answer to the action because the law presumes that the Plaintiff has no right to a character free from that imputation if he has no right to it. He cannot in justice recover damages for the loss of it. He is not entitled to benefit from the loss of a reputation he is not entitled to and as such the allegation in a defence that the words complained are true is therefore called a plea of justification."per BADA, J.C.A. (Pp , Paras. F-C) - read in context 19. TORT - LIBEL: Whether libel is actionable per se "It is trite law that libel once proved is actionable per se meaning that the law presumes damages to the Plaintiff without the need to prove special or actual damage. In EJABULOR VS. OSHA (Supra) at Page 15, the Supreme Court per Akpata JSC held that: -... Questions relating to proof of damages are totally alien to an action for libel...in OLANIYI VS. ELERO (Supra), this Court per Okoro, JCA held at page 527 Paragraphs D - E that: - "... libel is always actionable per se, that is without the need to prove special or actual damages... Also in LEADERS Per BADA, J.C.A. (Pp , Paras. F-F) - read in context

9 20. TORT - DEFAMATION: Essence of the tort of defamation "Now, it is generally accepted that a plaintiff's general character or reputation need not be stainless, unimpeachable and without any blemish before he can maintain an action in defamation. See CROSS RIVERS STATE NEWSPAPER CORPORATION vs. ONI (1995) 1 NWLR (Pt.371) 270. The proper purpose of an action for defamation has been held to be to vindicate the character of the person defamed. See EMEAGWARA VS. STAR PRINTING AND PUBLISHING COMPANY (2000) 14 WRN 89 AT 111. The law is that nothing can be more intangible than a man's reputation, dignity or feeling, and it is injury to a person's reputation, dignity or feeling that forms the essence of the tort of defamation.the general theory that damages are compensatory and are awarded on the basis of restitution falters when faced with the truth that it is almost a fiction that money can be used to restore a man's injured reputation or dignity to its former condition. Indeed, in the words of Oputa, JSC: who shall estimate the cost of priceless reputation that impress which gives this human dross its currency, without which we stand despised, debased, depreciation? Who shall repair it injured? Who can redeem it lost? See OLANIYAN Per OGAKWU, J.C.A. (Pp , Paras. E-E) - read in context 21. WORDS AND PHRASES - "LIBEL": Meaning of "libel" "What is libel? Libel has been defined as a statement in written form which causes a person to be exposed to hatred, ridicule or contempt i.e. to be shunned or avoided and to be lowered in the estimation of right thinking people in the society." Per BADA, J.C.A. (P. 10, Paras. C-D) - read in context 22. WORDS AND PHRASES - "CHARGE": Meaning of "charge" "See Black's Law Dictionary, 8th Edition page 248, where the word charge was defined to mean: -" To accuse a person of an offence."per BADA, J.C.A. (P. 43, Paras. B-C) - read in context

10 JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of High Court of Justice, Benin City in the Edo State of Nigeria in Suit No. B/119/2003. GEORGE C. IGBOKWE VS CHIEF SIR A. O. EZEGBO AND ANOR delivered on the 27th day of July As a result of the transfer of the learned trial Judge to Auchi, the case was concluded at Auchi High Court of Edo State of Nigeria. Briefly the facts of the case are that by Paragraph 18 of the amended statement of claim, the Plaintiff claimed jointly and severally against the Defendants (now Appellants) the sum of Fifty Million Naira (N50,000,000.00) as damages for libel. Pleadings were filed and exchanged by the parties. The case proceeded to hearing, and at the conclusion of hearing, Judgment was entered against the Defendants (now Appellants) jointly and severally and to pay (N10,000,000.00) Ten million Naira as damages for the libellous publication in Exhibit A1 against the person of the Plaintiff now Respondent. Dissatisfied with the Judgment of the Lower Court, the Appellants appealed to this Court. The learned 1

11 counsel for the Appellants formulated six issues for the determination of this appeal. The issues are reproduced as follows:- ISSUES FOR DETERMINATION 1. Whether the Lower Court had the jurisdiction to hear and determine this suit in Benin. 2. Whether the Lower Court can make any other findings on defamation in favour of the Plaintiff apart from the relief of fifty million Naira damages for libel which he claimed. 3. Whether the trial Court was right in law when it only considered in isolation the portions of Exhibit A1 which the Plaintiff/Respondent complained about and refused to consider the aforesaid Exhibit A1 in its entirety. 4. Whether the Lower Court was right in law when it failed to consider the defence of justification and refused to evaluate Exhibits G1, G2, and G3 tendered by the Defendants and also refused to consider the evidence of DW1, DW2, DW3, and DW4. 5. Whether the Lower Court was right in law when it held that the Defendants directly charged Plaintiff with the offence of murder. 6. Whether the damages awarded to the Plaintiff/Respondent was not excessive in view of the 2

12 finding of the trial Court and the pleadings and evidence before the trial Court. The learned counsel for the Respondent on the other hand, adopted the six issues formulated for the determination of the appeal on behalf of the Appellants. At the hearing of the Appeal, the learned counsel for the Appellants stated that the appeal is against the Judgment of Edo State High Court delivered on 27/7/2010. The notice of appeal was filed on 25/8/2010. The record of appeal was transmitted out of time and it was deemed as properly compiled and transmitted on 3/2/2016. The Appellants brief of argument was filed on 17/3/2011 while the Appellants reply brief of argument and Cross- Respondent s brief was filed on 9/11/2012. The said briefs of argument were deemed as properly filed on 3/2/2016. The learned counsel for the Appellants adopted the two briefs as his argument in urging that the appeal be allowed and Judgment of the Lower Court set aside and to dismiss the Plaintiff now Respondent s case. On the other hand, the learned counsel for the Respondent stated that there is a Cross-Appeal filed on 4/10/2010. She 3

13 referred to the Respondent/Cross-Appellant s brief of argument filed on 28/11/2011 which was deemed as properly filed on 3/2/2016. She adopted the said brief as her argument in urging that the appeal be dismissed and allow the Respondent s Cross- Appeal and review the damages awarded to him upwards. ISSUES FOR THE DETERMINATION OF THE APPEAL. ISSUE NO. 1 Whether the Lower Court had the jurisdiction to hear and determine this suit in Benin. (Distilled from Ground 1) The learned counsel for the Appellants referred to Order 10 Rule 4 of the Bendel State High Court (Civil Procedure) Rules 1988 which is applicable in Edo State which states inter alia that all other suits shall be commenced and determined in the Judicial Division in which the Defendant resides or carries on business or in which the cause of action arose. He stated further that Order 10 Rule 5 of the said rules gives the Defendant the right to plead specifically in objection to the jurisdiction before or at the time which he is required to state his answer or to plead in such case. It was contended on behalf of the Appellants that Benin High Court has no

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15 territorial jurisdiction over the case and that it is Ogidi High Court in Anambra State that has the territorial jurisdiction and should therefore be the proper venue for the hearing and determination of the suit. In proof of the assertion above learned counsel referred to the Addresses for service of the writ of summons on the Defendants/ Appellants. It was also stated that the writ of summons was endorsed for service outside Jurisdiction to wit Ogidi in Anambra State. He therefore submitted that it is Ogidi High Court that has territorial jurisdiction on the matter. He relied on the following cases: - LABARAN VS OKOYE (1995) 4 NWLR Part 389 Page 303 at 321; - UNIVERSITY PRESS LTD VS I.K. MARTINS NIG. LTD (2000) 4 NWLR Part 654 Page 584. He also referred to the testimony of the 1st Defendant who testified as DW 5 on 8/6/2009 to the effect that he read the address in question in Ikenga Ogidi Civil Centre and not in Benin City. He stated further that the said address was not sent with the Notice of Meeting (Exhibit A) and that there is no branch of Ikenga Ogidi Family Union in Benin. And that one Ike Onwuteaka atimes 5

16 attended meetings at Ogidi. The evidence of 1st Defendant as DW5 was also referred to where he stated that he did not circulate Exhibit A to delegates but rather that the delegates took copies of it. It was submitted on behalf of the Appellants that there must be evidence that the document was published in Benin and the names of the person to whom the words were published must be pleaded. He relied on the following cases:- - UGBOMOR VS HADOMEH (1997) 9 NWLR Part 520 Page 307 at 327 to 328 Paragraphs G D; - OSAYANDE VS ETUK (2008) 8 NWLR Part 1068 Page 211 at 227 Paragraphs B C. The learned counsel for the Appellants again referred to the evidence of DW5 who is the 1st Defendant where he testified that the Ikenga Ogidi Family Union has branches all over Nigeria but that Benin City has no branch. It was contended on behalf of the Appellants that the issue in dispute is not the publication which was made by the 1st Defendant in Ogidi Anambra State but the issue is the alleged publication which was made in Benin without the knowledge, authority or consent of the Defendants/Appellants. The learned counsel

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18 for the Appellants submitted that the High Court of Justice Benin City lacked jurisdiction to entertain the matter. He went further that there is no evidence linking the said publication in Benin with the Defendants/Appellants. He relied on the following cases:- - OSAYANDE VS ETUK (Supra) Page 227 Paragraphs B D; - AKITI VS PUNCH NIGERIA LTD (2009) 11 NWLR PART 1152 Page 281 at Paragraph A. It was contended on behalf of the Appellants that publication was not proved because the Respondent refused to produce evidence that is material to prove publication. He therefore urged this Court to presume that such evidence if produced would be unfavourable to the Respondent. He relied on the case of:- - MAIGORO VS BASHIR (2000) 11 NWLR Part 679 Page 453 at 474 Paragraphs G H. It was finally submitted on behalf of the Appellants that this issue be resolved in favour of the Appellants because publication of the said address Exhibit A1 in Benin was not proved. In her response, the Learned Counsel for the Respondent, submitted that the learned trial Judge was right in assuming jurisdiction to

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20 hear and determine the suit in Benin City. She went further in her submission, that in an action for libel, that proper venue for adjudication of the matter is where the cause of action arose i.e. where the alleged libel was published and not where the Defendant necessarily resides and to ascertain where the libellous matter is published, recourse must be had to the statement of claim. She relied on the following cases:- - IBRAHIM VS. OSIN (1987) 4 NWLR Part 67 Page 965; - NSIRIM VS. NSIRIM (1990) 3 NWLR Part 138 Page 285; - DAIRO VS U.B.A. (2007) 16 NWLR Part 1059 Page 99; - MBADINUJU VS I.C.N. LTD (2007) 15 NWLR Part 1058 Page 524; - EGBUE VS. ARAKA (1988) 3 NWLR Part 84 Page 598; - EMEKA VS. EMORDI (2004) 16 NWLR Part 1900 Page 433. The learned counsel for the Respondent also referred to the evaluation of evidence and the finding of the learned trial Judge on the fact of publication and the existence of Ikenga Ogidi Family Union Benin branch, she then submitted that there is no appeal on the said findings of fact of publication and existence of Benin Branch of Ikenga Ogidi Family Union. The decision according to

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22 counsel stands binding on all parties. She relied on the following cases:- - AGAGU VS. MIMIKO (2009) 7 NWLR Part 1140 Page 342 at 416; - ADEJOBI VS. THE STATE (2010)12 NWLR Part 1261 Page 347; - F.C.D.A. VS. NAIBI (1990)3 NWLR Part 138 Page 270; - I.H.A.B.U.M.B. VS ANYIP (2011)12 NWLR Part 1260 Page 1; - ODEDO VS. INEC (2008)17 NWLR Part 1117 Page 554. Respondent s Counsel therefore urged this Court to hold that Ikenga Ogidi family Union, Benin branch exists and that the word complained of by the Respondent was published. She finally urged that this Issue No. 1 be resolved against the Appellants. In the reply brief of argument, the learned counsel for the Appellants submitted that Ground One of the Notice of Appeal was not challenged by the Respondent and that the said ground encompasses the specific findings of fact by the trial Court. He submitted that the compliant of an Appellant is best appreciated when the grounds of appeal as contained in the notice of Appeal are read with its particulars. He relied on the following cases:-

23 - PETER VS. NNPC (2010) 8 NWLR Part 1195 Page 173 at 184 Paragraph D 9

24 IBRAHIM VS MOHAMMED (2003) 6 NWLR Part 817 Page 615 at Paragraphs H A. The learned counsel for the Appellants also argued that publication must be by the person who wrote the letter or document to another person. 1st Appellant according to him read the address at Ikenga Civil Centre Ogidi. He stated further that Mr. Jude Okeke who purportedly read it in Benin did not have the authority of the 1st Defendant/Appellant. He finally submitted that this Issue No. 1 be resolved in favour of the Appellants. What is libel? Libel has been defined as a statement in written form which causes a person to be exposed to hatred, ridicule or contempt i.e. to be shunned or avoided and to be lowered in the estimation of right thinking people in the society. The tort of Defamation is either libel or slander, the difference being that the former is written while the later is spoken. The essential ingredients of libel are as follows:- 1. The words complained of must have been written; 2. The Publication must be false; 3. The words must be defamatory or convey defamatory imputation;

25 4. The words must refer to the 10

26 Plaintiff; 5. It must be the Defendant that published the words; 6. The onus is on the Plaintiff to prove that he was the one referred to in the alleged libel. See the case of GUARDIAN NEWSPAPERS LTD & ANOR VS. REV. PASTOR C.I. AJEH (2011) 4 SCNJ Page 152 at In order to succeed in a tort of defamation i.e. libel, the Plaintiff must plead and prove all the three fundamental ingredients of the tort of defamation i.e. (i) That there is a publication of the material complained of by the Plaintiff; (ii) That the publication refers to no other person but the Plaintiff conclusively; (iii) That the publication is defamatory of the Plaintiff. See SKY BANK VS. AKINPELU (2010) 187 LRCN Page 1 at 110 particularly at 122. The first issue for determination of this appeal is whether the Lower Court had jurisdiction to hear and determine this suit in Benin. Applying the principles of law enumerated above to the facts of this case, the Respondent testified and called one witness while the Appellants called four witnesses i.e. DW1 DW4. The 1st Appellant testified as DW5 while the 2nd

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28 Appellant did not testify. The Respondent testified as follows at the Lower Court (see pages 148 to 149 of the Record of Appeal).... I am a legal practitioner. I know the defendants. The 1st defendant is a pharmacist based in Ogidi Anambra State at all times material to this matter, he was the Chairman of Ikenga Ogidi Interim Management Committee while the 2nd defendant was the secretary of the said committee. Myself and the two defendants are from Ikenga-Ogidi in Ndemili North Local Government of Anambra State. The family union has branches all over Nigeria including Lagos, Abuja, Kaduna, Port-Harcourt, Benin City and other major cities in Nigeria. Sometimes in August 2002, the two defendants wrote and signed an address dated 10th August 2002 which they attached to a notice of meeting dated 23/8/2002 which they circulated to all the branches of Ikenga Family Union including Benin City. The publication contained a paragraph of page 4 directed at my person and my profession to the effect that I am incompetent and am accomplice to 12

29 murder... The attached address is admitted in evidence as Exhibit and marked as Exhibit A1.... The only witness called by the Plaintiff/Respondent also testified on pages of the record of appeal. The said Plaintiff/Respondent s witness testified inter alia as follows:-... My name is Obiora Onwuteaka... I am a management consultant with Heltoni Services Ltd, Benin City... 13

30 I know Ikenga Ogidi family union. I am member of the union in Benin. The union has branches in other cities in Nigeria. I remember 1/9/02, it was a meeting day for Ikenga Ogidi family Union, Benin branch. At the meeting after the opening formalities. During the period of correspondence, a letter was read by the secretary. The letter was written by the two defendants who were Chairman and secretary of the Interim Administrative Caretaker Committee. It was read out to the whole meeting. The members and I present were shocked at the contents of the letter. The contents of the letter shows that the Plaintiff was involved in murder of one Lawrence. I asked to see the letter to be sure of what the secretary read out. I can identify the letter. It is Exhibit A. We were all shocked at the contents of Exhibit A because we had always held Plaintiff at high esteem and knowing his antecedents one could not put his person to be involved in such act considering his profession and person. This letter influenced the way we now look at him. His character was now in question. Some people lost their regard for him. I personally was surprised and I 14

31 look at him as a suspicious character. Before Exhibit A I knew the Plaintiff as a Senior Lawyer, has held positions in Nigerian Bar Association and has being the National Secretary in 2001 in the NBA. He was also Chairman of Ogidi Think Tank Constitution Drafting Committee. With this I took him as a person highly respected and regarded. He is a family man. Publication is the live wire of an action in libel. And the sting in an action for libel is the publication of an offensive article to a third party. It is actionable per se once proved. See the following cases:- - ILOABACHIE VS. PHILIPS (2000) 14 NWLR Part 686 Page 43; - NITEL LTD VS. TUGBIYELE (2005) 3 NWLR Part 912 Page 334; - DAIRO VS. UBN PLC (Supra). In an action for libel the proper venue for adjudication of the matter is where the cause of action arose i.e. where the alleged libel was published and not necessarily where the defendant resides. Furthermore, in order to ascertain where the libellous matter is published, recourse must be made to the statement of claim. I am fortified in my view above by the decision of the Supreme Court in NSIRIM VS NSIRIN 15

32 (Supra) Page 285 where it was held per Obaseki JSC at 297 as follows:-...the material part of the cause of action in libel is not the writing but the publication of the libel the act of publishing the libellous matter constitutes the cause of action... What then is publication? By publication is meant the making known of the defamatory matter to some persons other than the person to whom it is written. From the above, it is plain that it is the place a libel is published that the cause of action arose... Also in MBADINUJU VS I.C.N. LTD (Supra) Page 524 at 534, it was held by this Court per Odili JCA as he then was, that:-... The tort of libel is committed where the publication is read by a third party and not where it was written or authored or where the act complained of took place. See EZEUGWA VS. ADIMORAN (1993) 1 NWLR Part 271 Page 620. NAS VS. ADESANYA (2003) 2 NWLR Part 803 Page 97 Similarly in BABINGTON-ASHAYE VS. E.M.A.G. ENT (NIG) (2011) 10 NWLR Part 1256 Page 479. This Court held among others 16

33 that:- Jurisdiction is determined by the plaintiff s claim. In other words, it is the claim before the Court that has to be looked at or examined to ascertain whether it comes within the jurisdiction of the Court. The Court turns to the claim endorsed on the writ of summons or particulars of claim where one exists or a statement of claim. It is from one or more of these processes filed by the plaintiff that cause of action which is described as a bundle or aggregate of facts in relation between the parties which the Court will recognize as enabling the Plaintiff to enforce the claim against the Defendant." See also DAIRO VS U.B.N. (Supra) Page 99. In the appeal under consideration, the learned trial Judge took into consideration the pleadings in Paragraphs 4 and 4a of the amended statement of claim at page 87 of the record to hold that the action was brought within jurisdiction. In the course of evaluation of evidence, the learned trial Judge made definite findings of fact on the issue of publication as follows:-... there was a publication of the matter being complained of in Benin City 17

34 as given in evidence by the Plaintiff and PW1 and supported by 1st Defendant to an extent when he said that Mr. Onwuteaka from Benin was at the venue of the meeting and collected a copy of the address. Moreover the pleadings in Paragraph 35 by the Defendants shows that the Benin branch of Ikenga Ogidi Family Union exists (See page i.e. line and 1 2 of the record)... At the general meeting of 28th September 2002 at Ikenga Civil Centre Ogidi of the Ikenga Ogidi Family Union of all branches where copies were picked up including one Mr. Ike Onwuteaka from Benin who took a copy, PW1 said he was at the meeting and took a copy. DW2 also confirmed that branches of the Union collected copies. This is enough publication as he is a 3rd party and read it for himself. (See page 204 lines of the record.) Consequent upon the foregoing, it is my view that the learned trial Judge was right in drawing the conclusion it did that the pleadings of the Plaintiff/Respondent, the evidence of the Plaintiff, his witness and that of 1st Appellant and Exhibits A and A1 18

35 showed that Benin branch of the Ikenga Ogidi Family Union is in existence. And further that the words complained of was published in Benin City. Therefore the Lower Court had jurisdiction to hear and determine the suit in Benin. This issue No 1 is therefore resolved in favour of the Respondent and against the Appellants. ISSUE NO 2. Whether the Lower Court can make any other finding on defamation in favour of the Plaintiff apart from the relief of Fifty Million Naria damages for libel which he claimed. (Distilled from Grounds 2 and 3) The learned counsel for the Appellants submitted that in an action for defamation the Plaintiff must prove the following ingredients (a) Publication of the offending words; (b) That the words complained of refer to the Plaintiff; (c) That the words are defamatory of the Plaintiff; (d) Publication to the parties; (e) Falsity or lack of accuracy of the words complained of; (f) That there are no justifiable legal grounds for the publication of the words. See CONCORD PRESS NIG. LTD VS. OLUTOLA (1999) 9 NWLR Part 620 Page 578 at Pages 593 to 595 Paragraphs G

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37 A. The learned counsel for the Appellants contended that it is for the Court to make above findings based upon the Pleadings and evidenced. He relied on the case of CIROMA VS. ALI (1999) 2 NWLR Part 590 Page 317 at 330 Paragraphs A B. It was contended on behalf of the Appellants that the Plaintiff claimed only one relief in Paragraph 18 of his amended statement of claim. And that there is no claim for the Court to make a finding that the Plaintiff was libelled. He submitted that a Court will not grant a party a relief his did not claim. He relied on - A.G. FEDERATION VS. A.I.C. LTD (2000) 10 NWLR Part 675 Page 293 at 305; - AWONIYI VS. REG. TRUSTEES OF AMORC (2000) 10 NWLR Part 676 Page 522 at 539 Paragraph A. The learned counsel for the Appellants submitted further that the Lower Court ought to have dismissed the Plaintiff s claim because there was no claim for defamation of character. He went further that there was no reply from the Respondent on that issue and stated that the Respondent is deemed to have conceded the point. He relied on the following cases:- - UGBOAJA VS. SOWEMIMO

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39 (2008) 16 NWLR Part 1113 Page 278 at Paragraphs H A. - DARAMOLA VS A.G. ONDO STATE (2000) 7 NWLR Part 665 Page 441 at 468 Paragraph B. He urged this Court to allow this appeal on the ground that as at the time the Lower Court found that the submission of counsel for the Appellants was misconceived, the Court did not consider the argument on the issue in question. In her response the learned counsel for the Respondent submitted that the learned trial Judge was correct in the judgment delivered on the issue that the submission of learned counsel for the Appellant was misconceived. She submitted that the ingredients that constitutes the cause of action are borne out of the pleadings and are never claimed as reliefs. She went on to emphasise that the Lower Court did not grant any relief not claimed by the Respondent. It was also contended on behalf of the Respondent that the Appellants counsel is wrong in equating finding of fact with granting of reliefs. Learned counsel for the Respondent urged this Court to discountenance the cases of A.G.FEDERATION VS. A.I.C. (Supra) and AWONIYI VS. AMORC (Supra)

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41 cited on behalf of the Appellants because they are not applicable to this particular case. On the remark of the trial Judge that it is the Defendants pleadings that should have been headed Joint Statement of Defence the learned counsel for the Respondent contended that it is a genuine and true observation in view of the fact that there were two Defendants who filed the same statement of defence. She relied on the case of:- GARBA VS. OMOKHEDION (2011) 14 NWLR Part 1269 Page 145. Finally on this issue, the learned counsel for the Respondent stated that the Appellants have not shown how and where the decision of the Lower Court on the issue affected the decision of the Lower Court. She urged that this issue be resolved in favour of the Respondent. The issue for consideration here is whether the Lower Court can make any other findings on defamation in favour of the Plaintiff apart from the relief of Fifty Million Naira Damages for libel which he claimed. There is no equivocation on the fact that libel is a wrong to which the law imputes general damages. Once a Plaintiff proves that libel has been published of him

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43 without legal justification, his cause of action is complete. He needs not prove that he has suffered any resulting actual damage or injury to his reputation as such damage is presumed. See - JONES VS. JONES (1916) 2 A.C Page 481 at GUARDIAN NEWSPAPERS LTD AND ANOR VS REV. PASTOR C.I. AJEH (2011) LPELR 1343 SC 234/2005. In this respect, I agree with the learned counsel for the Respondent submission that libel as with all other aspects of civil law, can only be proved by establishing that ingredients that constitute the cause of action which enables the plaintiff to be entitled to the relief claimed. See the following cases:- - CONCORD PRESS VS. OLUTOLA (Supra) Page OKOLO VS. MIDWEST NEWSPAPER CORP (1997) NSCC Page 11 - Z.P. INTERNATIONAL LTD VS. SAMOTECH (2007) 16 NWLR Part 1060 Page 315. In this appeal under consideration, the Respondent pleaded and led evidence at the Lower Court on the ingredients of the libel against him. Part of the evidence was set out earlier in this Judgment. The fact that libel can only be proved by establishing the ingredients that constituted the cause of action was even conceded 23

44 by the Appellants in Paragraph 5.03 i.e. page 12 of the Appellant s brief of argument. The learned trial Judge also made findings on each of the ingredients before granting the relief claimed. The Lower Court did not grant a relief not claimed by the Respondent. The relief claimed as per the writ and statement of claim was for (N50,000,000.00) Fifty Million Naira as damages for libel and the Lower Court awarded the sum of Ten Million Naira to the Respondent. It must be emphasised that libel is actionable per se and once it is proved, damage is presumed. The cases of A.G. FEDERATION VS. A.I.C. (Supra) and AWONIYI VS. AMORC (Supra), are therefore not relevant in the case under consideration. Furthermore, though the learned trial Judge made a remark that in the Judgment, that it is the Defendant s pleading that should have been headed Joint Statement of Defence but this did not affect the decision of the Lower Court in anyway. In conclusion, this Issue No. 2 is therefore resolved in favour of the Respondent and against the Appellants. ISSUE NO. 3 Whether the trial Court was right in law when it only

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46 considered in isolation the portion of Exhibit A1 which the Plaintiff/Respondent complained about and refused to consider the aforesaid Exhibit A1 in its entirety. (Distilled from Ground 4) The learned counsel for the Appellants referred to part of the Judgment of the trial Court where it was held among others that: - It is noteworthy that their Paragraph 7 of their pleadings quotes from Exhibits A1 more extensively. However, for the purpose of this case, it is only the aspect complained of by the Plaintiff that will be considered. See pages 205 lines 9 to 11 of the Record of Appeal. It was submitted on behalf of the Appellants that the finding above is wrong and the following cases were relied upon: - - AKITI VS. PUNCH NIG LTD (Supra) page 281 at 299 to 300 Paragraphs H A. - OGUNBADEJO VS. OWOYEMI (1993) 1 NWLR Part 271 Page 517 at 533 Paragraphs F G. The learned counsel for the Appellants submitted that the trial Court should not have isolated a few words and hold them to be defamatory without considering the whole Exhibit A1 especially the preceding paragraphs

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48 which gave rise to the conclusion complained of and examine same vis-à-vis other documents and evidence before it, like Exhibits J and J1. He stated further that Exhibits J and J1 were tendered in evidence to prove the defence of justification and fair comment. He went further that the Lower Court refused to consider the evidence of the Defendants in explanation of the reason why they came to the said conclusion based on the fact that the youths started terrorizing the village after their joinder as signatories to the said Bank Account. It was also contended that the Defendants/Appellants were not parties to the arraignment of the Plaintiff/Respondent. The learned counsel for the Appellants submitted that the ruling on bail application and DPP s advice, Exhibits D and E are extraneous matters that ought to have no bearing on the case as the Defendants did not know about it and were not connected with it as shown in the evidence and in the pleadings as the Plaintiff did not prove that they instigated it or made any statement against him. It was 26

49 concluded on behalf of the Appellants that had the trial Court considered the entire contents of Exhibit A1 together with the evidence and pleadings of the Appellants as Defendants before the Lower Court, the Court should have arrived at a different conclusion. Learned counsel for the Appellants in conclusion urged that this issue be resolved in favour of the Appellants. In her response to the submissions of the learned counsel for the Appellants, the Respondent s counsel submitted that the finding of the learned trial Judge that...it is only the aspect complained by the Plaintiff that will be considered cannot be faulted in law, practice and procedure. He relied on the following cases: - OKAFOR VS. IKEANYI (1979) 3 4 SC Page GUARDIAN NEWSPAPERS VS. AJEH (Supra) Page 574. The Respondent s counsel submitted that the contents of the passage tendered as Exhibit A1, showed that the passage referred to the Plaintiff/Respondent and his profession, therefore that the trial Judge was right in holding that it was only the aspect of Exhibit A1 (Paragraph 5 of

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51 the Statement of Claim) complained of by the Respondent that she considered. Learned counsel for the Respondent urged that this issue be resolved in favour of the Respondent. In libel cases, the duty on the Plaintiff is limited to reproducing verbatim in his pleading, the whole article (or the particular passage thereof) complained of. Where the complaints of the Plaintiff relates to and can be fully determined by reference to a particular passage of an entire article, the law permits him to plead only that passage in line with the trite rule that pleadings must contain only material facts. In GUARDIAN NEWSPAPER VS. AJEH (Supra), the Supreme Court restated the principles in clear terms when it held per Rhodes-Vivour JSC at page that A Plaintiff who claims that an article is libellous of him must reproduce the whole article or the particular passage the Plaintiff complains of verbatim. No matter how long the article is it must be reproduced by the Plaintiff. In this case the Respondent reproduced verbatim the particular passage he complained of in his pleadings... See also OKAFOR VS. IKEANYI 28

52 (Supra). In this appeal under consideration, the Respondent s complaint was on a passage in page 4 of the article written and published by the Appellants, tendered in evidence as Exhibit A1. The said passage was pleaded and set out verbatim in Paragraph 5 of the amended Statement of Claim at page 87 of the record of appeal as follows:... the restive youth was thus ill advised, misinformed and misdirected by their sponsors Uba Onubogu and George Igbokwe. That singular event marked a remarkable turning point in the history of Ikenga and the beginning of the gathering dark cloud that eventually disastrously enveloped Ikenga Ogidi on January 5, 2002 when Mr. Law Ikwuemesi was murdered by the same youth under their godfather and legal adviser. The contents of the passage set out above i.e. Paragraph 5 of the statement of claim showed clearly that the passage referred to person and profession of the Respondent. His name was specifically mentioned as well as his profession. See the following cases: - - DELUMOR VS. SKETEL (1972) AII NLR Page 567; - ONU VS. AGBESE (1985) 1 NWLR Part 4 Page

53 Furthermore, a careful examination of the said passage set out above showed that the passage contained defamatory words to wit ill advised, misinformation, misdirection and murder which is clearly directed at the person and profession of the Respondent. The allusions to the Plaintiff/Respondent and his profession forms and falls within the essential ingredients of libel and are enough to prove and establish libel without reference to other parts of Exhibit A1. It is very clear that the Respondent was not complaining about the entire publication but only about the material passage set out earlier in this Judgment which is also set out in Paragraph 5 of the amended statement of claim. In my humble view, the learned trial Judge was right in holding that it was only the aspect of Exhibit A1 complained of by the Respondent that she considered. The question whether or not the words complained of are defamatory is a question of fact within the province and sole prerogative of the Judge to interprete and determine. In doing this, the Judge only ascribes the fair and natural meaning that would be given to the 30