Acka v. Akure (1987)


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23 February 1987

1.
PETER VANNERI ACKA

 2.
 BENUE PRINTING AND PUBLISHING CORPORATION

V.

S. J. I. AKURE

COURT OF APPEAL

(JOS DIVISION)

CA/J/31/86

ABDUL GANIYU OLATUNJI, J.C.A. (Presided)

UMARU ABDULLAHI, J.C.A.

WALLACE RONALD TISLINGTON MACAULAY, J.C.A. (Read the Lead Judgment)

THURSDAY, 27TH NOVEMBER, 1986

PRACTICE AND PROCEDURE – Adjournment – Principles governing.

PRACTICE AND PROCEDURE – Adjournment – Refusal of – Denial of fair hearing.

TORT – Defamation – Words spoken by one – Published by another – Whether speaker vicariously liable.

Issue:

Whether in the circumstances of the case, the refusal of an adjournment does not occasion a miscarriage of justice.

Facts:

By writ of summons dated 13/9/82 the plaintiff/respondent caused a writ to be issued against the defendants and claimed against them; jointly and severally the sum of N500,000 as damages for libel, and an injunction to restrain the defendants and their agents from publishing anything defamatory of the plaintiff.

The 1st defendant was the Adviser to the Governor of Benue State on Chieftaincy and Political Affairs while the 2nd defendant was a Statutory Corporation which printed and published a newspaper known as “The Nigeria Voice”.

The 1st defendant gave a press conference at which he uttered the alleged defamatory statement, and which was published by the Second defendant.

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At the trial, the plaintiff testified and closed his case and the defence started, but later found it impossible to continue because the three witnesses already subpoenaed were not in court. The defence then asked for an adjournment which was refused, whereupon the defence closed its case.

The defence again requested for 24 hours adjournment to prepare its address, and this was also refused by the court which reserved judgment, without hearing the defence witnesses and the address of its counsel. The learned Judge in his judgment found for the plaintiff and awarded damages in the sum of N65,000.00.

The defendants appealed to the Court of Appeal contending that the refusal of the requests for adjournment constituted a denial of fair hearing, and improper exercise of discretion.

The plaintiff/respondent however countered that the refusal to grant an adjournment to enable counsel prepare his address could not constitute a denial of fair hearing “since counsel’s address is merely to guide the court.”

Held (Allowing the appeal and ordering a retrial):

1.
Counsel’s address is neither a substitute for evidence which has not been adduced nor a supplement for the inadequacy of the evidence already given in court.

2.
A court is not bound to grant an adjournment, and the question of an adjournment is a matter in the discretion of the court concerned, and the exercise of the discretion must depend on the facts and circumstances of each case.

3.
Where the refusal of an adjournment would result in a serious injustice to the party requesting the adjournment, the adjournment should be refused only if that is the only way that justice can be done to the other party.

4.
Although the granting or refusal of an adjournment is a matter of discretion, If an appellate court is satisfied that the discretion has been exercised in such a way as would result in an injustice to one of the parties, the appellate court has both the power and the duty to review the exercise of the discretion.

5.
The refusal to grant an adjournment in the instant case amounted to a denial of fair hearing in that the defence was prevented from presenting its case, and a wrong exercise of the discretion by the learned trial Judge.

6.
It is not the law that an utterer of a defamation is liable without more for the individual or collective responsibility of those who choose to repeat whatever the utterer may have said.

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Nigeria Cases Referred to in the Judgment:

Adewoje v. Aina (1986) 3 N.W.L.R. (Pt. 20) 506

Odusote v. Odusote (1971) 1 N.M.L.R. 228

Sholanke v. Ajibola (1968) 1 ANLR 46

Surma v. Daboh FCA/J/99/83 delivered on 21st March 1985.

Uyo I v. Egware (1974) 1 A.N.L.R. 293

Yoye v. Olubode (1974) 1 A.N.L.R. (Part II) 118

Foreign Case Referred to In the Judgment:

Walker v. Walker (1967) 1 A.E.R. 412

Appeal:

This was an appeal from the decision of the Benue State High Court which found for the plaintiff. The Court of Appeal Jos allowed the appeal and ordered a retrial.

History of the Case:

Court of Appeal:

Court of Appeal from which the appeal was brought: Court of Appeal, Jos Division

Names of Justices that sat on the appeal: Abdul Ganiyu Olatunji Agbaje, J.C.A. (Presided), Umaru Abdullahi, J.C.A., Wallace Ronald Tislington Macaulay J.C A. (Read the Lead Judgment)

Appeal No:. CA/J/31/86

Date of Judgment. November, 27th November, 1986.

High Court:

Name of the High Court: High Court Benue State

Name of the Judge: A.P.  Anyebe, J.

Date of Judgment: Tuesday, 26th July 1983

Counsel:

Mr. Edward K. Ashiekaa – for the Appellants

Mr. Paul R. V. Belabo – for the Respondent

MACAULAY, J.C.A. (Delivering the Lead Judgment): By writ of summons dated 13/9/82, the plaintiff/respondent caused a writ to be issued against the above-named defendants and claimed against them, jointly and severally the sum of N500,000 (Five Hundred thousand Naira), as damages for libel. Also, an injunction to restrain the said defendants and their agents from publishing anything defamatory of the plaintiff.

In the statement of claim which supercedes the writ, the said respondent in the relevant particulars, inter alia, pleaded as follows, viz:

“Para. 1:

The plaintiff is a businessman and a member of the National Party of Nigeria – he resides at Nos. 11 and 13 Kambisa Street, High Level area of Makurdi;

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Para. 2

The 1st defendant is the adviser to the Governor of the Benue State of Nigeria on Chieftaincy and Political Affairs.

Para. 3

The 2nd defendant is a statutory corporation established by the Government of the Benue State of Nigeria.

Para. 4

The 2nd defendant prints and publishes among other things, newspapers and publishes a newspaper known as “The Nigeria Voice” which has a wide circulation both within and outside the Benue State of Nigeria;

Para 7

That on the 10th day of September, 1982, the second defendant falsely and maliciously published in “THE NIGERIA VOICE”, Vol. 1 No. 273, Friday, September, 10, 1982, and concerning the plaintiff, the following words, among others:

“Plateau State Government sponsored affidavit against Aku Acka;”

“Plateau State Government of Governor Solomon Lar, has been accused of giving financial backing to the court action filed by a Makurdi businessman Mr. S.J.I. Akure, against Benue State Governor Mr. Ape Aku”.

“Mr. Akure had in 16-point affidavit sworn to in Makurdi on Tuesday accused the Governor of certain wrong-doings since he assumed office in October 1, 1979”

Para 8

That the words complained of above have their ordinary and natural meanings and that the defendants meant, intended to mean, among others, that –

(a)
the plaintiff swore to an affidavit accusing Governor Aper Aku of wrong doings;

(b)
that in swearing to the said affidavit, the plaintiff was sponsored or given financial backing or aid by the Plateau State Government or Governor, Mr. Solomon Lai”

(c)
the plaintiff is a corrupt, and unscrupulous businessman who places his financial interests above and over other considerations;

(d)
The plaintiff’s action was filed “against Benue State Governor Mr. Aper Aku”;

Part II

PARTICULARS OF MALICE

(a)
That the first defendant has no material to “buttress his claim” (The allegation against the plaintiff) and yet he made the allegations at a press conference in Makurdi on 9/9/82 as contained in the “Nigeria Voice” of Friday, September 10, 1982 (a copy of which will be made available for use in evidence on the date of the hearing of this suit);

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(b)
That the 2nd defendant knew or had reason to believe that the 1st defendant had no material to back up the said allegations against the plaintiff and yet published them in the Nigeria Voice referred to above” (unquote)

(All italics mine).

In the answer to the above, the defendants have filed and served on the plaintiff the subsisting “Amended Joint statement of defence”, dated 17/3/83 in pursuance of the courts Order dated 16/3/83. Since no reply thereto which might have been filed by the plaintiff within 7 days at his option as ordered in fact has been filed, in that event, recourse will have to be had to the pleading of paragraphs 8-17 of this joint defence to see whether or not –

(i)
There is a nexus between the 1st and 2nd defendants to the extent of making the latter liable, vicariously or otherwise for the acts of the former.

(ii)
The 2nd defendant prints and publishes, amongst other things, newspapers, publishes a newspaper known as “The Nigeria Voice” with a large circulation within and outside Benue State of Nigeria.

(iii)
The 2nd defendant on the 10th day of September, 1982, falsely and maliciously published in that paper the words, among others, allegedly said to be conspicuous at the back page issue of that day, and carrying the words pleaded at para. 7 of the statement of claim.

(iv)
whether those words complained of, have their ordinary and natural meanings and that the defendants mean, intended to mean, and were understood to mean, among others, the meanings attributed to them, and pleaded at para 8 (a-d) of the statement of claim.

(v)
Whether the 1st defendant defamed, and if he did, whether he did so together with the 2nd defendant, or whether by himself he libelled the plaintiff, or could be said to have meant any of the meanings credited by the plaintiff to the ordinary or natural meaning of the words complained of, as stated at para 8 (a-d) of the statement of claim

(vi)
Finally, whether firstly, the 1st defendant, and/or, indeed both defendants, have any answer to the plaintiff’s averment as spelt out in para 11 of his statement of claim.

In due course, pleadings were filed and exchanged and after one adjournment, the plaintiff/respondent opened his case on 21/11/82, and wound up on 22/4/83  for defence case to open on 25/4/83. On the adjourned date, 3/5/83, after the testimony of the first witness, further hearing was adjourned to 5/7/83. It would appear that, just before this adjournment was granted, Mr. Ashieka had told the court of the absence of, and his intention to call three (3) more of his witnesses, viz:- James Ikuve, Mrs. Philomena Shilong and Richard Umoru – two of whom, Mrs. Shilong and Richard who live at Jos, and had been subpoenaed since April 14th – and that Mr. Ikuve who had not been subpoened, had been told orally. At the adjourned hearing on 5/1/83, the record of proceedings read as follows, Quote –                                        “Uloko, Ikongbe with him for the plaintiff. Plaintiff present.

Defendants absent. Mrs. C. Agbinda for the defendants.

Mrs. Agbinda: We subpoenaed 2 witnesses from Jos. They are not in

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court. They are the editor of Sunday Standard. Since they are not in court, we find it impossible to continue – We ask for a date to bring them to court.

Ct:      I need not hear the plaintiff in this matter. There has been enough adjournment in this case at the instance of the defendant. The adjournment sought cannot therefore be granted. The case will go on as scheduled.

(SGD) A.P. Anyebe

(Judge)

5/7/83″

Agbinda:

The defence closes its case. I need 24 hours I cannot address the court earlier than that.

Uloko: 

      I will address the court. Our case is proved” (unquote)

In his brief, Mr. Ashieka, learned counsel for the appellant has contended that this application for adjournment by defence counsel, though not objected to by the plaintiffs counsel, was refused.That a further application to prepare counsel’s address didn’t fare better because, after listening to plaintiff’s counsel address, the court, true to its earlier declaration, reserved judgment to 26th July 1986. In that judgment, the learned trial Judge found for the plaintiff and awarded general damages against both defendants in the sum of N65,000 (Sixty five thousand naira) with costs assessed at N629 (Six hundred and twenty nine naira). It is against this judgment that the defendants have appealed to this court. Originally three grounds of appeal were filed on 9/8/83. On 18/7/86, the appellant move the court by motion filed on 18/7/86 asking for two separate prayers. In the first, leave was sought for and granted to file and argue the two additional grounds of appeal exhibited thereon, and now standing on the records of this court as grounds 4 and 5. The second prayer asking for the court’s leave to depart from the rules requiring the filing of briefs, and ordering that the brief already filed by the appellant herein be deemed sufficient and proper for this appeal, was struck out as being no more applicable in the face of the first one. Further hearing of the appeal was then adjourned to 14/10/86.

For ease of reference, these are the five grounds, viz: Quote

           “Ground 1

The decision of the lower court is unreasonable, unwarranted and not supported by the weight of evidence.

Ground 2

The trial Judge erred in law when he failed to observe the rules of Natural Justice, equity and good conscience by not giving the defendants/appellants a chance during the tidal to properly defend themselves.

Ground 3

The award of N65,000.00 to the respondent is excessive and unreasonable having regard to the legal principles governing the award of damages.

Ground 4

That the learned trial Judge erred in law and misdirected himself upon the facts in holding that:

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“The claim is proved… No acceptable defence has been tendered…… I therefore hold both defendants jointly and severally liable to the plaintiff in defamation. They have committed libel against the plaintiff….”

when the plaintiffs claim did not disclose a cause of action for damages for libel against the 1st defendant.

PARTICULAR OF ERROR

(i)
In his statement of claim the plaintiff pleaded in paragraph 7 the publication of the words complained of.

(ii)
No where in his statement of claim is any allegation of publication made against the 1st defendant.

Ground 5:

That the refusal of the learned trial Judge to grant the application of counsel for defendants for an adjournment of 5th July 1983 was a wrong exercise of the discretion of the trial Judge, and consequently amounted to a denial of fair hearing.

PARTICULARS

(i)
Plaintiff’s (defence) counsel sought an adjournment so as to:

(a)
Call 2nd defendant to testify.

(b)
Call two vital witnesses, who had been subpoenaed.

(c)
Prepare counsel’s address.

(ii)
By the provisions of Order 24 Rule 4(1)(2)(3), the court is enjoined to grant an application for adjournment for the purposes of ensuring that justice is done.

(iii)
Properly understood and applied, Order 24 Rule 4 is authority for granting the defendants’ application –

Briefs of argument on both sides have been filed and exchanged. The respondent’s brief filed on 21/5/86, according to appellants’ counsel, was not in fact served on him until the morning of 21/7/86, he was in court to move his 2(two) prayers aforementioned, Understandably; learned counsel for the respondent may have been unaware of the two proposed additional grounds of appeal which had been filed with the motion dated 18/7/86, and set down for hearing, also on 21/1/86. This must explain Mr. Belabo’s misgivings when he submitted that, of the three questions raised in the appellants’ brief, only question (b) and (c), treated in the said brief as question Two and Three, are the only issues for determination, properly arising from the grounds of appeal filed. Even though lie rather darkly hinted that if question ONE is at all valid, he said that it would be treated under protest as an issue. However, by 14/10/86 when he opened the appeal on behalf of the respondent, learned counsel Mr. Belabo, having said his piece, intimated that he would be modifying his position with regard to the 1st appellant by removing his protest in not having been served in relation to question 1 raising the issue of publication of libel by the said 1st appellant, since it was conceded that those additional grounds were in fact argued in the appellants’ brief. Though he still said he had not been served, he has in argument before us submitted that the appeal should nevertheless be dismissed. When asked by the court what was the respondent’s factual pleading against the 1st defendant, learned counsel referred

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the court to a portion of the judgment at page 51 which, inter alia, reads thus: “In his evidence on oath before this court, the first defendant said as follows, In my office as Political Adviser, I made comment to press reporters, I see exhibit 1 back page. It reflects the comments I made’. I find therefore that the words in exhibit 1 back page reproduced above and about which the plaintiff herein complains were published by the defendants” (unquote) (Italics mine) – Learned counsel, reiterating an earlier submission in his brief, contended that “paras 8 and 11 of the statement of claim, read together, repute publication by the 1st defendant”, (unquote). As submitted in his brief of argument, it was otherwise the contention of learned counsel for the respondent that the learned trial Judge had correctly and judiciously exercised his discretion to refuse defendant/appellants application in the instant case. He said that there was no indication of the materiality of the evidence the witnesses were expected to give since the Judge had himself addressed this issue in extenso at page 4, 11 3-6 of the record where he declared, “I need not hear the plaintiff in this matter”; and also in his judgment at p.53 from 11 32 page 62 11 15. Leaving aside the side remarks by the learned Judge about defence counsel’s attempt, to quote him, “to confuse issues, not least the indifference, and other trifles and puerility shown at the trial,” it seems to me that those passages have given this court no indication of what the witnesses who were on subpoena, would have come to say. If anything, the cavalier way he guillotined any hearing rather suggest he was not interested to hear whatever these witnesses had to say.

Learned counsel has contended that to the extent that the witnesses in issue were merely to buttress publications already tendered in evidence as contended in the appellants brief, the inability to bring them, did not prejudice anything, having regard to the evidence of DW1 and the careful treatment of the said publications by the trial Judge at pp. 65 11.10 page 66 11.12, D.W1 had said, inter alia, “Exhibit 1 reflects only part of what I said. I issue press release to correct what was misquoted. It appears in the Nigeria Voice. Mr. Akure swore to an affidavit, later he filed a suit against N.P.N. restraining it from nominating Governor Aper Aku.

In the careful treatment of the said publication referred to above, the learned trial Judge said, inter alia, “I find that various papers alleged that the plaintiff swore to an affidavit against Governor Aper Aku but the plaintiff did not complain against these papers which are in exhibit before this court. The plaintiff made a press statement contained on page 22 exhibit 22 title not much in that press statement is relevant to the issue of libel before this court (unquote). Having only heard the 1st defendant DW1, how will the learned trial Judge know all that may be relevant to the issue of the alleged libel against both defendants without calling the second defendant to testify, the two vital witnesses who had been subpoenaed and entertaining the defence counsel’s address?

Learned counsel has met this concern when, in his brief he submitted that, quote, “nor can the refusal to grant an adjournment to prepare an address by appellant’s counsel be considered to be a denial of fair hearing since counsel’s address are merely to guide the court”. It seems to me that the crux of the pleading, particularly in relation to the 1st defendant (now 1st appellant), is to decide whether or not he defamed the respondent, and if he did, whether either by himself, or together with the 2nd defendant, any allegation(s) credited to him lays him open to an action for libel. If  I am right, then counsel’s submission that the witnesses in issue, that is the two on subpoena, had nothing new to add, but were merely to

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 buttress publications already tendered in evidence as contained in the appellant’s brief. I am also of the view that, on the face-value of the evidence of DW1, the careful treatment of the said publications as alleged, can hardly be a substitute for the evidence of the unheard witnesses. If, as he has quite rightly submitted, counsel’s address(s) are merely to guide the court, what guidance can a court get if vital evidence is shut out, particularly when there is no suggestion that those witnesses have been kept away by the defence? When it is recognised that those witnesses were on subpoena, and counsel for the defence had done all he need do, can it be said that any peremptory or pre-emption or exclusion of evidence may not perhaps be prejudicial to the defence case?

Before us, Mr. Ashieka, learned counsel for the appellants in answer to the court, has submitted that these two witnesses were to buttress the averments contained in their joint amended statement of defence as pleaded at paras 9, 11, 14 and 16. Pleadings in themselves do not constitute evidence and until the evidence now claimed to be vital is heard, can it be said that the presence of those two witnesses was expendable? It is clearly the law that, as far as facts of any given case are concerned, the address of counsel is supposed to deal only with the evidence before the court. This is so because the mere mention of a matter in the course of such address, is never a substitute for the evidence that has not been led. Nor can it supplement the inadequacy of the evidence already given at the trial. (See Yoye v. Olubode & Ors. (1974) 1 ANLR (Part 11) p. 118 at 123). So, that whilst there may be a case for saying that counsel’s address may not supply the needed guide, it seems to me that vital evidence, particularly from subpoenaed witnesses, cannot, without some harm to the defendants’ case, be shut out. I have no doubt in my mind that, on the pleadings referred to, in regard to the alleged publication, malice or fair comment, a judgment of this court to which learned counsel has referred this court, has adequately covered the points (See Chia Surma & A nor. v. Chief Godwin Daboh FCA/J/99/83, delivered on 21st March 1985). Learned counsel has also submitted that the refusal of the learned trial Judge to consider the adjournment, was a wrongful exercise of the powers of a Judge to grant an adjournment. He also cited the case of Adewoje v. Aina (1986) 3 . (Pt. 20) at p. 506; also Sholanke v. Ajibola (1968) 1 ANLR 46 at 51 and 53. This court will need some persuasion not to follow the above authorities -1 am persuaded that there is force in the submission that the refusal to grant the adjournment sought amounted to a denial of fair hearing in that the defence was prevented from presenting its own case, particularly when the plaintiffs counsel did not object. Learned counsel for the defence also submitted that the application by defence counsel to prepare final address was made independently of the application for application to call witnesses. In any event, he further contended that neither the plaintiff nor his counsel objected to the application for adjournment. That rather, in fact it was the court that declined to hear counsel on the application, preferring as it were, to summarily refuse the application.

These assertions do not seem to have disputed the suggestion that the refusal was not even in the plaintiffs interest. It seems to me therefore clear that even if the two applications could be considered in isolation as separate ones, there could be a case made out that even the plaintiff was not afforded an opportunity to conduct its own case as it might otherwise have wished to do.

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Learned counsel had contended, rather forcefully, that the wrong discretion was exercised because the provision of Order 24 Rule 4, sub-sections 1-3 were not observed by the learned trial Judge. These provide that – Quote.

“Rule 4(1) – The court may postpone the hearing of any cause on being satisfied that the postponement is likely to have the effect of better ensuring the hearing and determination of the questions between the parties on the merits, and is not made for the purpose of mere delay. The postponement may be made on such terms as the court may seem, just.

(2)
Where such application is made on the ground of the absence of a witness, the court shall require to be satisfied that his evidence is material, and that he is likely to be present and give evidence within a reasonable time.

(3)
Where an application is made for the purposes of enabling the party applying to obtain the evidence of a witness resident out of the jurisdiction, the court shall require to be satisfied that the evidence is material, and that he is permanently resident out of the jurisdiction, or does not intend to come within the jurisdiction within a reasonable time.”

(unquote).

Quoting with approval the case of Odusote v. Odusote (1971) 1 NMLR 228, Agbaje, J.C.A. said, inter alia, in the China Surma case, quote “of all the authorities cited to us in this regard, the Supreme Court decided that a court is not bound to grant an adjournment and that that question of an adjournment is a matter in the discretion of the court concerned, and the exercise of the discretion must depend on the facts and circumstances of each case. He cited with approval a passage from the Judgment of Sir Joselyn (President) in Walker v. Walker (1967) 1 AER 412 at 412 where an earlier opinion was re-inforced that the guiding principle must be two-fold, quote, “first, where the refusal of an adjournment would result in a serious injustice to the party requesting the adjournment, the adjournment should be refused only if that is the only way that justice can be done to the other party; and, secondly, that although the granting or refusal of an adjournment is a matter of discretion, if an appellate court is satisfied that the discretion has been exercised in such a way as would result in an injustice to one of the parties, the appellate court has both the power and the duty to review the exercise of the discretion” (unquote). On the facts so fat before us, using the above principles as a guide, I have no doubt that this was one case of a wrong exercise of the discretion by the learned trial Judge, resulting in probable injustice to both parties.

The purpose and value of pleadings cannot be over-emphasized. For a start, the parties, not least the court, will be bound by their pleadings. To this extent, a defendant who has been brought to court must be left in no doubt what case it has to answer in court, since on the whole, the burden of proving the positive assertion lies on the plaintiff, and this he must discharge by credible legal evidence. On the pleadings as they stand, can it be said that the 1st defendant defamed the plaintiff? If he did, did he libel the plaintiff/respondent? Do the pleadings as they stand, disclose a cause of action for damages for libel against him, since nowhere is it alleged that he published, or was privy to the publication of, the

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offensive words complained of. It is the respondent’s case that he has proved that both defendants maliciously wrote and published the offensive words at the back page of the “Nigeria Voice” of 10/9/82. Learned counsel for the respondent has submitted that paras 8 and 11 of the statement of claim, read together, repute such publication by the 1st defendant. The fallacy in this argument is obvious because on the pleadings at paragraph 7 of the statement of claim, apart from the fact that the 1st defendant was never mentioned, either by imputation or necessary implication, it was alleged that, quote, “on the 10th day of September, 1982, the 2nd defendant falsely and maliciously published in “The Nigerian Voice”, conspicuously at the back issue… The following words… para 8 followed up by alleging that the words complained of have their ordinary and natural meanings and that the defendants meant, intended to mean and were understood to mean, among others At para 11 it was then pleaded that 1st defendant has no material to “buttress his claim” (the allegation against the plaintiff) and yet… If 1st defendant was not the publisher of whatever appeared in “The Nigeria Voice”, in the absence of any pleading showing the allegation he made against the plaintiff, I fail to see how he could be imputed with knowledge of whatever the offensive words published by the 2nd defendant meant, were intended to mean or could be understood to mean.

    I am by no means saying that 1st defendant may not have said anything. In his own evidence, he said, quote, “exhibit 1 reflects only part of what I said.  I issued press release to correct what was misquoted. It appeared in the Nigeria Voice (unquote). The learned trial Judge in his judgment looked at this piece of evidence and must have interpreted it the way when he said, inter alia, quote “in his evidence on oath before this court, the first defendant said as follows “in my office as Political Adviser I made comment to press reporters – I see exhibit 1 back page it reflects the comments I made” – On this basis, the learned trial Judge went on to conclude as follows, quote, “I find therefore that the words in exhibit 1 back page reproduced above, and about which the plaintiff herein complaints, were made by the defendants” (unquote). With respect, I have a feeling that the learned trial Judge may have glossed over the point that para. 1 expressly pleaded that it was the 2nd defendant who published, or perhaps caused to be published, the words complained of. There is nothing in that pleading which expressly, or which by necessary implication, remotely suggests that the 1st defendant is vicariously liable for the tortuous acts of the 2nd defendant. If indeed evidence was adduced, or could have been adduced to show what in fact were the exact comments he made, as opposed to what he claimed were either “misquotes or reflections of only part of what he said,” there may well be a case that these words were, or could be regarded, as defamatory. In that event, there may well be a case of slander published on that occasion, on proof of which, he could be muleted in damages for slander, not libel. It will then be clearly the position in law that, should any of those press reporters present at the briefing where he made the comments, subsequently be adventurous enough even to repeat those words of mouth or in print, and even by express reference to the 1st defendant himself as the source of the words etc. will each be held answerable for the consequence(s) of his (their) action(s). It is not the law that in the event, the 1st defendant will be held liable, without more for the individual or collective responsibility of those who choose to repeat whatever the 1st defendant as Political Adviser may have said – I am not aware of any law that will make the 1st defendant liable by imputations as the learned trial Judge seems to imply.

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Finally, the basis by which he arrived at and his yardstick in quantifying the damages he awarded the plaintiff, has been called into serious question by the appellants. Learned Counsel Mr. Belabo seems to be in tune with the perception of the learned trial Judge when he held that, on the balance of the authorities, the case of His Highness Uyo 1 v. Felix Egware (1974) 1 ANLR 293, 295 at 296, is authority for the proposition that, the status of plaintiff is one of several serious factors to be considered in awarding damages for actionable libel. Since the point now to be decided in the short run is the adjournment issue, this court should be spared the requirement to concern itself with any pronouncement on the question of liability or damages at this stage. I am of the view, therefore, that on the facts before me, there is need for the whole case to be remitted to the High Court to be heard de novo, on the merits, before another Judge. In my view, the refusal to grant the adjournment was a wrong exercise of the learned trial Judge discretion, and I will for this reason allow the appeal. The appellants will be entitled to costs in this court assessed at N250 each against the respondent. The costs in the court below, if any, will abide the re-hearing at the High Court.

Appeal Allowed.

AGBAJE, J.C.A. (Presiding): I have had the opportunity of reading in draft the judgment just delivered by my learned brother, Macaulay, J.C.A. I too agree with his reasoning and the conclusions reached by him.

ABDULLAHI, J.C.A: I have had the benefit of reading in draft the lead judgment just delivered by my learned brother, Macaulay, J.C.A. I too agree with his reasoning and the conclusions reached by him.

Appeal allowed.

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