Legalpedia Citation: (2024-04) Legalpedia 82119 (CA)

In the Court of Appeal

Holden at Abuja

Mon Apr 8, 2024

Suit Number: CA/ABJ/CV/981/2022

CORAM

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Peter Chudi Obiorah Justice of the Court of Appeal

PARTIES

1. GABRIEL ADUDA.

APPELLANTS

1. SIMINIALAYI YOUNG PEPPLE

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

In the trial at the High Court of the Federal Capital Territory, Abuja, the Respondent, as the plaintiff, sued the Appellant for libel published against him in several publications. The Respondent sought general and exemplary damages of N50,000,000.00 and requested that the Court order the Appellant to publish an apology in two national newspapers.

The parties joined issues through their pleadings, and during the trial, the Appellant chose to rest his case on that of the Respondent. After receiving the final addresses from both parties, the learned trial Judge delivered a judgment in favor of the Respondent, granting the reliefs sought.

Dissatisfied with this outcome, the Appellant invoked the appellate jurisdiction of this Court via a Notice of Appeal.

HELD

Appeal allowed

ISSUES

 Whether the Court and the parties are not bound by law to confine themselves to the pleadings, the issues joined and the evidence adduced by the parties?

 Whether the issuance of a defamatory material amounted to publication in law?

 Whether there was indeed evidence of publication of defamatory materials which warranted the award of the exorbitant sum of N20,000,000.00 (Twenty Million Naira) only as general and exemplary damages in libel?

RATIONES DECIDENDI

DEFENDANT – WHERE A DEFENDANT CHOOSES TO REST HIS CASE ON THAT OF THE CLAIMANT

As earlier pointed out, the Appellant as Defendant chose not to call evidence in support of his pleadings but rather rested his case on that of the Respondent who was Claimant at trial. Where a defendant chooses this line of defence, he is by implication accepting the case of the Plaintiff or Claimant as presented and saying that even if the entire case of the Plaintiff or Claimant as presented was accepted as true, he would not be liable. This point was made abundantly clear by OGBUAGU, JSC thus:

“It is now settled that the implication where a defendant rests his case on the plaintiffs case, it may mean that:

(a) that the defendant is stating that the plaintiff, has not made out any case for the defendant to respond to; or

(b) that he admits the facts of the case as stated by the plaintiff or

(c) that he has a complete defence in answer to the plaintiffs case.

See the cases of Akanbi v. Alao (1989) 3 NWLR (Pt.108) 118; (1989) 5 SCNJ 1 and NEPA v. Olagunju & Anor (2005) 3 NWLR (Pt.913) 603 @ 632 C.A. In the case of Aguocha v. Aguocha (2005) 1 NWLR (Pt.906) 165 @ 184 citing Akanbi v. Alao (supra), it is stated that a situation where a defendant failed/fails to lead evidence in defence, but rested his case on that of the plaintiff, it is regarded as a legal strategy and not a mistake. If he succeeds, then it enhances his case, but if he fails, that is the end of his case. See THE ADMIN. & EXEC. OF THE ESTATE OF ABACHA VS EKE-SPIFF & ORS (2009) LPELR-3152(SC) at 59-60. The downside is that the onus on the Plaintiff or Claimant is reduced to the barest minimum. This much was emphasized by MUKHTAR, JSC (as he then was) thus:

“When a defendant refuses to adduce evidence in his defence, and rests his case on the evidence of the plaintiff, then he has himself to blame if the trial Court finds for the plaintiff based on his evidence, as was done in the instant case. The position of the law is that where an adversary fails to adduce evidence to put on the other side of the imaginary scale of justice, a minimum evidence adduced by the other side would suffice to prove its case.” See Buraimoh v. Bamgbose (1989) 3 NWLR (Pt.109) page 352 and Nwabuoku v. Ottih (1961) 2 SCNLR page 232. See NEWBREED ORGANISATION LTD VS ERHOMOSELE (2006) LPELR-1984(SC) at 26 and AONDO VS BENUE LINKS (NIG) LTD (2019) LPELR-46876(CA). – Per J. O. K. Oyewole, JCA

LIBEL – THE ESSENTIAL PART OF THE CAUSE OF AN ACTION FOR LIBEL

At the heart of sustaining the cause of action of libel is publication of the libelous material not the writing or authorship thereof. See MAMMAN VS SALAUDEEN (2005) LPELR-1833(SC) at 31 where ONNOGHNEN, JSC (as he then was) while delivering the leading judgment stated thus:

“The essential part of the cause of action in libel is publication of the libelous matter complained of, not in the writing of the libelous matter. That being the case, it is trite law that an action for libel cannot be sustained without proof of publication. See Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) 285.” – Per J. O. K. Oyewole, JCA

PUBLICATION – MEANING OF PUBLICATION

Publication has been defined as the making known of the defamatory matter to some person other than the person of whom it is written. See OFFOBOCHE VS OGOJA LG (2001) LPELR-2265(SC), NSIRIM VS NSIRIM (1990) 3 NWLR PART 138 285 at 297 and ARGUNGU VS IGBOELI (2021) LPELR-54162(CA). – Per J. O. K. Oyewole, JCA

BURDEN OF PROOF – BURDEN OF PROOF IN A CIVIL PROCEEDING

The pleadings therefore indicate a firm joinder of issues by the contending parties and the burden of proof was thereby on the Respondent who as Claimant was the party asserting the affirmative of the allegations and he was the party who will lose if no evidence was adduced by either side. See Sections 132 and 133 of the Evidence Act, 2011, MAKANJUOLA VS AJILORE (2001) 12 NWLR (PT. 727) 416, KLIFCO (NIG) LTD. VS N.S.I. T.FM.B (2005) 6 NWLR (PT. 922) 445, DANA IMPEX LTD & ANOR VS. ADEROTOYE (2005) LPELR-5534(CA) and AMINU & ORS VS. HASSAN & ORS (2014) LPELR-22008(SC) at 38-39. – Per J. O. K. Oyewole, JCA

LIBEL – DUTY OF A CLAIMANT SUING FOR LIBEL

The said press statement said to have been issued by the Appellant was never tendered, neither was any evidence adduced establishing a nexus between the Appellant and the publications tendered as Exhibit A at the trial. Having expressly alleged that the Appellant published libelous materials against him, it was not enough for the Respondent to make the allegations and tender the publications at trial, he must link the Appellant with the publications. To succeed in discharging the burden of proof on him he must adduce evidence showing that the Appellant was responsible for the said publications.

Pleadings must be backed by evidence otherwise such would be considered abandoned. See AKITI VS PUNCH NIG. LTD & ORS (2009) LPELR-3665 (CA). – Per J. O. K. Oyewole, JCA

LIBEL – WHERE THE CLAIMANT FAILS TO ESTABLISH THAT THE DEFENDANT WAS THE PUBLISHER OF THE LIBELOUS PUBLICATION

The failure to adduce evidence in support of the allegation that the Appellant was the publisher of the alleged libelous publications meant that there was no duty on the Appellant to adduce evidence in rebuttal. See BALA & ANOR VS HASSAN (2014) LPELR-23997 (CA) at 41, NSIRIM VS NSIRIM (supra) and AWOJUGBAGBE LIGHT INDUSTRIES LTD VS CHINUKWE (supra). – Per J. O. K. Oyewole, JCA

CROSS-EXAMINATION – THE EFFECT OF FAILURE TO CROSS-EXAMINE A WITNESS ON A PARTICULAR MATTER

See OFORLETE VS STATE (2000) LPELR-2270 (SC) where ACHIKE, JSC at 24-25 propounded the position of the law thus:

“… where the adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of that matter as led in evidence. See Akinwunmi v. Idowu (1980) 3-4 SC 108, Bello v. Eweka (1981) 1SC 101, M.T.A. & Sons v. F.H.A. (1991) 8 NWLR (Pt.209) 295, p.313, Omoregbe v. Lawani (1980) 3-4 SC 108, Azeez v. The State (1986) 2 NWLR (Pt.23) 541 and Broadline Enterprises Ltd. v. Monterey Maritime Corporation & Anor (1995) 9 NWLR (Pt.417) 1, 27. – Per J. O. K. Oyewole, JCA

CROSS-EXAMINATION – THE IMPORTANCE OF CROSS-EXAMINATION

After all, the noble art of cross-examination constitutes a lethal legal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party. It is therefore good practice for counsel not only to put across his client’s case through cross- examination, he should, as a matter of the utmost necessity, use the same opportunity to negative the credit of that witness whose evidence is under fire. Plainly, it is unsatisfactory if not suicidal bad practice for counsel to neglect to cross-examine a witness after his evidence-in-chief in order to contradict him or impeach his credit while being cross-examined but attempt at doing so only by calling other witness or witnesses thereafter. That is demonstrably wrong and will not even feebly dent that unchallenged evidence by counsel leading evidence through other witnesses to controvert the unchallenged evidence.” – Per J. O. K. Oyewole, JCA

LIBEL – WHETHER AUTHORSHIP OF LIBELOUS MATERIAL IS SAME AS PUBLICATION THEREOF

As earlier pointed out, authorship of a libelous material is different from publication thereof. A material with libelous content does not constitute libel unless and until it is published to third parties. See NSIRIM VS NSIRIM (supra).  – Per J. O. K. Oyewole, JCA

COURTS – WHETHER COURTS CAN SPECULATE IN THE ABSENCE OF EVIDENCE

Courts cannot speculate in the absence of evidence. The learned trial Judge cannot speculate or conclude as was done in the absence of evidence. See EJEZIE & ANOR VS ANUWU & ORS (2008) LPELR-1063 (SC), AMASA & ORS VS. THE CHAIRMAN, NATIONAL POPULATION COMMISSION & ORS (2014) LPELR-22772 (CA), SHARING CROSS EDUCATIONAL SERVICE LTD VS. UMARU ADAMU ENTERPRISES LTD & ORS (2015) LPELR-24661(CA) and SPDC VS. RACCAH & ORS (2022) LPELR-58736 (CA). – Per J. O. K. Oyewole, JCA

PUBLICATION – WHETHER PUBLICATION IS ESSENTIAL FOR ESTABLISHING A CASE OF DEFAMATION

As highlighted in the leading judgment, proof of publication of the statement complained of is an essential pre-requisite for establishing a case of defamation. This is because by its definition, defamatory statement is one which injures the reputation of another, tending to lower him in the estimation of right-thinking members of the society, causing him to be regarded With contempt, ridicule, disdain, fear, hatred or disesteem. Such an injury can only occur where the statement is proved to have been published to some person other than the one of whom the statement was made. See NEPA v CHIEF INAMETI (2002) FWLR (Pt. 130) 1695 at 1716, ABALAKA v AKINSETE & ORS (2023) LPELR-60349(SC) at 11 paras. D – F, THE SKETCH PUBLISHING CO. LTD & ANOR v AJAGBEMOKE-FERI (1989) LPELR-3207(SC) at 19. paras. A – C and NWAKOBY v AHAM & ORS (2016) LPELR-41511(CA). – Per A. B. Muhammed, JCA

DEFAMATION – MEANING OF DEFAMATION

As highlighted in the leading judgment, proof of publication of the statement complained of is an essential pre-requisite for establishing a case of defamation. This is because by its definition, defamatory statement is one which injures the reputation of another, tending to lower him in the estimation of right-thinking members of the society, causing him to be regarded With contempt, ridicule, disdain, fear, hatred or disesteem. Such an injury can only occur where the statement is proved to have been published to some person other than the one of whom the statement was made. See NEPA v CHIEF INAMETI (2002) FWLR (Pt. 130) 1695 at 1716, ABALAKA v AKINSETE & ORS (2023) LPELR-60349(SC) at 11 paras. D – F, THE SKETCH PUBLISHING CO. LTD & ANOR v AJAGBEMOKE-FERI (1989) LPELR-3207(SC) at 19. paras. A – C and NWAKOBY v AHAM & ORS (2016) LPELR-41511(CA). – Per A. B. Muhammed, JCA

PLEADINGS – WHERE EVIDENCE IS NOT LED ON PLEADINGS

There is no doubt that by our well-established legal precedents that pleadings on which no evidence is led is deemed abandoned. See Mobil Produce (Nig.) Ltd. v. Umenweke (2002) 9 NWLR (Pt. 773) 541, Raimi Olarewaju v. Amos Bamigboye & Ors (1987) 3 NWLR (Pt. 60) 313, Eseigbe v. Agholor & Anor (1993) 9 NWLR (Pt. 316) 128 and Oduwole & Ors v. West (2010) LPELR-2263(SC). – Per P. C. Obiorah, JCA

PLEADINGS – THE EFFECT WHERE A PARTY DOES NOT GIVE EVIDENCE ON PLEADINGS

However, such act of a party deciding not to give evidence on his pleadings which is tantamount to abandonment or a party not even filing a defence to a suit does not ipso facto mean that the action of the claimant will succeed. The non-filing of defence or failure to lead evidence on the pleadings may make the burden of proof lighter as the claimant may succeed on minimal proof, but still the claimant is bound to establish his entitlement to the reliefs sought by proving the ingredients necessary for him to succeed.

In other words, a claimant can still lose a case even where there is no defence to the suit. Conversely, a defendant who did not lead evidence during trial may still be entitled to the judgment of the Court where the evidence of the claimant is so patently weak or failed to prove the ingredients of the claim or offence. See UNIUYO v. UDO (2023) LPELR-61414(CA) and ORJI V. UGOCHUKWU (2009) 14 NWLR (Pt. 1161) 207. – Per P. C. Obiorah, JCA

LIBEL – ESSENTIAL INGREDIENTS TO ESTABLISH A CASE OF LIBEL

In the instant, which is an action in defamation by libel, the Respondent had a duty to prove the necessary ingredients to ground a finding of defamation in his favour. In the case of ILOABACHIE v. ILOABACHIE (2005) LPELR-1492(SC) at page 44, paras. B – E, Akintan, JSC held that:

“The law is settled that to sustain an action for libel, the plaintiff must prove that: (1) The publication was in writing; (2) The publication was false; (3) The false publication was made to a person apart from the plaintiff and the defendant; (4) The publication referred to the plaintiff and was defamatory of the said plaintiff, and (5) The publication was made by the defendant: See Din v. African Newspaper of Nig. Ltd. (1990) 3 NWLR (Pt. 139) 392, Onyejike v. Anyasor (1992) 1 NWLR (Pt. 218) 437, Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285 and Onu v. Agbese (1985) 1 NWLR (Pt. 4) 704.” – Per P. C. Obiorah, JCA

PUBLICATION – THE IMPORTANCE OF ESTABLISHING PUBLICATION IN AN ACTION FOR LIBEL

The making of a statement is one thing while the publication thereof is another thing. In the absence of evidence that the publication of the statement was made by the Appellant, the fact that he did not lead any evidence at the trial does not aid the case of the Respondent since the burden of proof rests on him by virtue of Sections 131, 132 and 133 of the Evidence Act, 2011. – Per P. C. Obiorah, JCA

CASES CITED

STATUTES REFERRED TO

1. Evidence Act, 2011
2. Constitution of the Athletics Federation of Nigeria 2017
   

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