In The Court of Appeal of Nigeria
On Friday, the 23rd day of February, 2018
Before Their Lordships
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
ACCESS BANK PLC-Appellant
MRS CECILIA AJAYI-Respondents
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is in respect of the judgment of the Lagos State High Court delivered on the 25th May, 2015 by HON. JUSTICE M.O. OBADINA wherein the Court below dismissed the claim of the Claimant and entered judgment for the defendant/counter claimant for libel. Dissatisfied with the decision, the Appellant filed a Notice of Appeal on the 30/6/15 setting out 8 grounds of appeal.
The Appellant as claimant filed a claim before the Court below and sought for the following:
1. The sum of N1,431,863,050’26 (One Billion, Four Hundred and Thirty One Million, Eight Hundred and Sixty Three Thousand, Fifty Naira and Twenty Six Kobo) being the outstanding unpaid principal sum and accrued interest thereon in respect of the facility granted the 1st defendant by the Claimant and guaranteed by the 2nd defendant.
2. Interest at rate of 21% from 14th May 2009 until judgment and thereafter at the rate of 7% per annum until final liquidation.
3. N500,000.00 (Five Hundred Thousand Naira) being cost of this action.
The facts leading to this appeal are simply that the parties entered into an agreement to deal in stocks and shares and set up a Central Security Clearing System account which was to be jointly managed by the parties. The sum set aside for the purchase was N1.5Billion and the money was advanced to the Respondent’s company- De-Lords Securities Ltd. The amount advanced was used to buy shares and was under the control of the Appellant. The Appellant warehoused the shares and later made a demand on the Respondent for failure to repay the money advanced and because the Respondent had allegedly disposed of the shares and failed to repay the loan. It was contended by the Appellant that the Respondent breached the agreement entered into by the parties thus the claim. The claim was denied and the statement of defence was filed with a counter claim for libel because the Appellant wrote a complaint to the Nigeria Police which in turn declared the Respondent wanted through a newspaper publication. That was the basis for the counter claim which states thus:
The Defendant’s counter-claim is for the sum of N10Billion only as well as general damages for the negligent mis-statement, false and malicious publications wrote, printed and published or caused to be written, printed and published as a letter to the police, and consequent actions taken by the police in publishing Special Police Gazette Bulletin No. CR/3150/29/04/09 posted all over Nigeria and concerning the Defendant/Counter-Claimant.
The trial was duly conducted and the Court below dismissed the main claim and allowed the counterclaim.
The Appellant’s Brief is dated 26th February, 2016 filed on the same day but deemed on the 30/11/16. It distilled 4 issues for determination as follows:
i. Whether or not the learned trial Judge breached the principle of fair hearing as enshrined in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as Amended) when the learned trial Judge respectfully proceeded in the judgment to proffer evidence in support of the Respondent’s claim for defamation which the Respondent herself did not do in open Court?
ii. Whether or not the learned Trial Judge was right in law when the judge held that the Respondent need not call as a witness, a person who had read Exhibits D16, D17, and D18 to show that the reputation of the respondent had actually been lowered in the eyes of such a person, and whether based on facts pleaded and exhibits admitted, the learned trial Judge was right in holding that the purported libelous words in Exhibits D16, D17 and D18 were indeed reproduced verbatim in the Respondent’s pleadings as prescribed by law?
iii. Whether or not the learned trial Judge was right in law in awarding to the respondent the sum of N10,000,000.00 (Ten Million Naira) as general damages to be paid by the Appellant for the publication made by the Police in the Punch Newspaper as per Exhibits D16, D17 and D18 based on the false premise that the Appellant’s petition (Exhibits D2), led to the issuance of Exhibits D16, D17 and D18 by the police which exhibits were said to impugned the character and reputation of the respondent, whether the use of the word ‘fraudulent’ in Exhibit D2 automatically imputes a crime?
iv. Whether or not the learned trial Judge was right in law when the judge held that the Respondent’s reputation was ruined based on the purported publication of Exhibits D16, D17 and D18 by the Appellant and the Police, favor of the Respondent?
The Respondent’s Brief dated 19th day of December, 2016 and filed on the 20th December, 2016, donated a sole issue for determination as follows:
Whether having regard to the pleadings and the evidence before the Court, the respondent is entitled to succeed in her claim for libel and malicious publication against the Appellant.
I have carefully considered the Notice of Appeal, the Record of appeal and the briefs of the parties before the Court and the issues put forward by the appellant covers all the areas of complaint against the judgment. I shall adopt the said issues for determination in this judgment though the issues shall be resolved all at once.
The Appellant in arguing the appeal, restated the principle of law as it relates to fair hearing and relied on OLUFEAGBA V ABDUL-RAHEEM (2009) 18 NWLR (PT. 1173) 453-454, AG RIVERS STATE V UDE (2006) 17 NWLR (PT 1008) 436 @ 456, TERAB V LAWAN (1992) 3 NWLR (PT. 231) 569 @ 590, INIAMA V AKPABIO (2008) 17 NWLR (PT 1116) 225 CA and Section 36 of the 1999 Constitution (as amended) in support. The Appellant further submitted that by linking the publication of Exhibits D16, D17 and D18 to the Appellant in her private chambers without giving the parties an opportunity to proffer evidence on this in open Court, the trial judge had erred in law and breached the Appellant’s constitutional right to fair hearing. It argued that the publications were made by the Police and there was no evidence to show that the publications were sponsored or authored by the Appellant. The Appellant further argued that it is not the duty of the Courts to make a case for a party as was done in this case and that a Court should be bound by its record premised on adduced evidence, referred to OKPULOR V STATE (1990) 11-12 SC 151, NWOPARA OGBOGU & ORS V EGBUCHIRI UGWUEGBU & ORS (2003) 6 SCM 72, AGIP (NIG) LTD V AGIP PETROLI INT’L (2010) 5 NWLR (PT 1187) 348 @ 431, AGBI V OGBEH (2006) 11 NWLR (PT 990) 65 @ 135.
On issue 2, the Appellant submitted that failure to call a party who has read a libelous matter to confirm that he had been negatively affected by the publication is fatal to the case of the party alleging defamation, referred to NSIRIM v NSIRIM (1990) 3 NWLR (PT 138) 285. The Appellant argued that Exhibit D2, the complaint to the Police cannot be considered as a libelous publication within the context of the law, referred to DWIN V NWANGWU (2006) 5 SC 70, ISHENO V JULIUS BERGER (2008) 6 NWLR (PT 1084) 582, FAJEMIROKUN V COMMERCIAL BANK (NIG) LTD (2009) ALL FWLR (PT 487) and it is surprising that the Appellant can be held liable for the publication of Exhibit D16, D17 and D18 without any evidence on record. Furthermore, the Appellant argued that in an action for libel, the actual words complained of and not merely their substance must be set out verbatim in the statement of claim and failure to do this as in this instance is fatal to the case, referred to ZENITH PLASTIC INDUSTRY LTD V SAMOTECH LTD (2007) 16 NWLR (PT 1060) 315 @ 347.
On issue three, the Appellant challenged the decision of the trial Court in awarding the sum of Ten Million Naira against the Appellant for the publication made in the papers. It argued that it is the duty of the police to arrest offenders and persons reasonably suspected of committing offences and that the petition the Appellant submitted to the police was done as a preventive act and does not amount to a publication, referred to Section 4 of the Police Act and the cases of FAWEHINMI V IGP (2005) 5 SC (PT. 1) 63, GBAJOR V OGUNBIREGUN (1961) ALL NLR 853 @ 855, ADEFUNMILAYO V ODUNTAN (1958) WNLR 31, DWIN V NWANGWU (SUPRA), FAJEMIROKUN V COMMERCIAL BANK OF NIG LTD (supra) in support. Further argued that the way and manner the police decides to investigate complaints made to it is at the discretion of the police and the Appellant cannot be liable for it, it relied on FAWEHINMI V IGP (2002) 8 SCM 77, OSAYANDE V ETUK (2008) 1 NWLR (PT 1068) 211, P.G.S.S. IKACHI V IGBUDU(2005) 12 NWLR (PT 940) 543 @ 574, UMAGBA V OGBE (1996) 8 NWLR (PT 458) 626. The Appellant submitted that it was justified in making the report to the police because it is fraudulent for a party not to respect an agreement voluntarily executed, cited MAMMAN V SALAUDEEN (2005) 18 NWLR (PT 958) 511. The Appellant argued that the authority of ZABUSKY V ISREALI AIRCRAFT INDUSTRIES (2008) 2 NWLR (PT 1070) 121 relied on by the trial Judge was cited out of context and that the use of the word fraudulently in the petition written to the police does not ipso facto form the basis of a claim to a crime, cited AROWOLO V IFABIYI (2002) 4 NWLR (PT. 757)
356, GODWIN NWANKERE V ADEWUNMI (1967) NMLR 45. Finally, on this point, the Appellant argued that the Respondent failed to prove the essential ingredients of libel and this failure is detrimental to the Respondent’s claim. It referred to SKETCH PUBLISHING CO. LTD V ALHAJI AZEEZ AJAGBEMOKEFERI (1989) 1 NWLR (PT 100) 678, ANATE V SANUSI & ORS (2011) 11 NWLR (PT 725) 542, OGBAJI V AREWA TEXTILES PLC (2000) 11 NWLR (PT 678) 322 @ 342 in support of its submissions.
On issue four, the Appellant argued that the Respondent failed to prove that her reputation was damaged in the opinion of right thinking persons, that the request for clarification by the Chartered Institute of Arbitrators does not amount to a denigration of the Respondent’s reputation and the lower Court erred in holding otherwise. It referred to EMEGOKWE V OKADIGBO (1973) 4 SC 113, SHELL BP LTD V ABEDI (1974) 1 ALL NLR (PT. 1) 1, PAN BISBILDER (NIG) LTD V FBN LTD (2000) 1 NWLR (PT. 642) 684 and urged this Court to set aside the decision of the lower Court.
In reply to the submissions of the Appellant, the Respondent argued that no evidence was proffered by the learned trial Judge outside the pleadings and evidence in open Court. The Respondent submitted that the statement of claim itself shows that the malicious publication and words came from the Appellant as no other bank had such business transactions involving the exact amount published and no other bank toed the line followed by the Appellant. It urged this Court to take into account the admissions and facts tendered in evidence to find that the Appellant is responsible for the publication, referred to Section 5, 6, 7 and 21 of the Evidence Act and OLOKUN v AIYELABEGAN (2004) 2 NWLR (PT. 858) 504, AGBERAH v MIMRA (2008) 2 NWLR (PT. 1071) 378. It further argued that the Appellant negligently referred to the Respondent as fraudulent and criminal in its petition and that where as in this case the Appellant made a direct and positive admission, it is not necessary to prove publication in an action for libel, referred to AMUZIE v ASONYE (2011) 5 NWLR (PT. 1242) 19. The Respondent further argued that a Defendant is liable for a publication which is the natural and probable result of his original publication. She referred to Law of Tort (Street on Torts) 6th Ed. 361, AKPAN V STATE (1994) 9 NWLR (PT. 368) 437, DOUGLAS V PETERSIDE (1994) 3 NWLR (PT. 330) 37, UGO V OKAFOR (1996) 3 NWLR (PT 438) 542.
On the issue of damages and whether the Respondent must call as a witness a person who has read the libelous words, the Respondent argued that if a plaintiff can prove that a libel has been published without justification, his cause of action is complete and he need not prove that he has suffered any actual damage, referred toINLAND BANK NIG PLC V FISHING & SHRIMPING CO. LTD. (2010) 15 NWLR (PT. 1216) 395. On the Appellant’s submission that the words to the police cannot be considered as a publication within the context of the law, the Respondent argued that this issue does not form part of any ground of appeal and therefore incompetent and should be struck out, referred to MADUMERE V OKAFOR (1996) 4 NWLR (PT. 445) 637, CCB LTD V NWOKOCHA(1998) 9 NWLR (PT 564) 998. In any case, the Respondent argued that the Appellant failed to raise any issue of qualified privilege in its defence and considering the fact that the petition is malicious, the defence of qualified privilege cannot be considered, referred to THE PRINCIPAL GOVT SECONDARY SCHOOL IKACHI V IGBUDU (2005) 12 NWLR (PT. 940) 543. She further submitted that where malice is shown, it will rob the publication of any element of good faith. Respondent referred to VANGUARD MEDIA LTD V OLAFISOYE (2011) 14 NWLR (PT 1267) 207, NEW BREED ORGANISATION LTD V ERHOMOSELE (2006) 5 NWLR (PT 974) 499, UMAGBA V OGBE (1995) 8 NWLR (PT 48) 621 in submitting that the reasons given by the Appellant for the publication cannot justify the making of such publication. The Respondent argued that the case of FAJEMIROKUN v COMMERCIAL BANK OF NIGERIA LTD Supra relied upon by the Appellant is not relevant here because the report to the police was done malafide. The Appellant submitted that the lower Court was right in its findings and that the decision should be upheld. Finally, the Respondent argued that contrary to the submissions of the Appellant, the lower Court reproduced the content of the libelous words in Exhibit D16, D17 and D18 in her pleadings. Besides, it argued that if the action is in respect of a libelous passage in a letter, it is sufficient if the meaning of the passage complained of is clear and referred to ONYEJIKE v ANYASOR (1992) 1 NWLR (PT 218) 450 in support.
The Appellant’s reply brief is merely an adumbration of its submissions in the Appellant’s brief which ought not to be. It is hereby discountenanced; see OMNIA (NIG.) LTD V. DYKTRADE LTD. (2007) 15 NWLR (PT.1058) 576 AT 610 – 611.
The initial complaint is a fundamental one, it is an alleged infraction of a pillar of fair trial and fair hearing. All judicial process or trials must be founded on the twin pillars to stand, these are: Audi alteram partem hear the other side and Nemo judex in causa sua, no one should be a judge in his own cause. See PAM V MOHAMMED(2008) 16 NWLR (PT. 1112) 1 S.C., BAMGBOYE V UNIVERSITY OF ILORIN (1999) 10 NWLR (PT. 622) 290.
It is also trite that any breach would have a catastrophic effect on such a process as it will fall short of the Constitutional requirement. See EZE V UNIJOS (2017) LPELR – 42345 (SC). The basic ingredients and sacred principles are also constitutionally enshrined in Section 36 of the 1999 Constitution (as amended). It is therefore the right of every party in a judicial proceeding before our Courts to be accorded these rights and the Courts must observe the fundamental principles of fair hearing as any breach vitiates the entire process, see OVUNWO & ANOR V WOKO & ORS (2011) LPELR – 2841 (SC).
The Appellant here contends that the Court below imported evidence not established by the parties and relied on same to determine the counterclaim. Generally, a judge is duty bound to consider only evidence established during trial, extraneous matters should not find a place in the midst of evidence of parties. Evaluation of evidence is carried out on what the parties presented through their witnesses and which remained standing after cross examination. The judex is an impartial umpire and therefore restrained and restricted to that which was placed before it by the parties.
The contention of the Appellant relates to Exhibits D16, D17 and D18 tendered before the Court. These were publications made by the Nigeria Police in respect of the Respondent. The Appellant was allegedly linked to the publications by the Respondent in her evidence in support of the counterclaim. More so, the Respondent admitted being indebted to other banks. However, the Court below relied on it to find the appellant liable in damages for defamation.
Documentary evidence is said to be the best form of evidence. It is the hanger by which to assess the veracity of oral testimony, see OMOREGBE V LAWANI (1980) 3-8 SC 137. A document can be used to resolve an issue on which the parties have tendered conflicting evidence as held by the apex Court in BUNGE V GOVERNOR OF RIVER(2006) 12 NWLR (pt. 995) 573 at 629. It therefore follows that there has to be oral evidence that would activate the document to speak and then it becomes evidence on which the Court can determine the matter, see ADEBISI ADEGBUYI ESQ & ANOR V HON. RAMONI OLALEKAN MUSTAPHA & ORS (2010) LPELR- 3600(CA) which held as follows:
The authorities are well settled that a party relying on documentary evidence to prove his case has a duty to specifically relate each document to the part of his case in respect of which the document is being tendered. See also AWUSE V ODILI (2005) 16 NWLR (PT.952) 416; TERAB V LAWAN (1992) 3 NWLR 559; EJIOGU v ONYEAGUOCHA (2006) ALL FWLR (PT.317) 467; EMENUO V DIM (2002) FWLR (PT.126) 1004 and NWOLE V IWUAGWU (2005) 16 NWLR (PT. 952) 543.
It is trite too that a judge is not allowed to engage in inquisitorial examination of documents in the recess of his chambers, the apex Court in the case SENATOR IYIOLA OMISORE & ANOR V OGBENI RAUF ADESOJI AREGBESOLA & ORS (2015) LPELR- 24803 (SC) said as follows:
It cannot be otherwise for it has long been settled that a judge is not permitted to embark on an inquisitorial examination of documents outside the Court room. Worse still, he is not allowed to act on what he discovered in such a document in relation to an issue when that was not supported by evidence or was brought to the notice of the parties to be agitated in the usual adversarial procedure. See also IVIENAGBOR V BAZUAYE (1999) 9 NWLR (PT. 620) 552; BORNU HOLDING CO. LTD V ALHAJI HASSAN BOGOCO (1971) 1 ALL NLR 324 AT 333;UGOCHUKWU v CO-OPERATIVE BANK (1996) 7 SCNJ 22 and JALINGO V NYAME (1992) 3 NWLR (PT. 231) 538.
A document must be tied to the case of a party by a witness otherwise, such will be considered as having been dumped on the Court. Going by the answers to questions in cross examination, the Respondent was hesitant reading Exhibit D16, D17 and D18 because they
were full pages of content, then the Court below volunteered to read the Exhibits, see page 794 of the record. The Respondent admitted that the exhibit did not mention the name of the Appellant but insisted that the Appellant’s petition triggered the publication. It is obvious therefore, that the Respondent in testifying did not tie or use the 3 exhibits as a hanger to verify her oral testimony linking the Appellant to the publication. The Court in chambers read and picked out what it considered essential for the case of the Respondent and used same in arriving at a decision. This is totally against settled principles of fair hearing. It is not the duty of the trial Court to assist a party in making its case for judgment. The duty of the Court is to give equal opportunities to parties in presenting their cases. The duty of the judge is to evaluate evidence, ascribe value and use same to decide the issues raised on the pleadings before the Court. The trial judge cannot offer assistance to any party. The trial judge is an adjudicator and cannot therefore leave its exalted seat to share the lowly seat with a party, that will mean the judge descended into the arena of battle circumscribed by the parties. The trial judge erred when it excused the witness from tying the Exhibits to her case to prove her counterclaim. The Court below has no legal duty in that regard. I agree with the Appellant that its right to fair hearing was breached because the Court took the place of the Respondent in picking relevant pieces of evidence from the exhibits which was used to establish the counterclaim. The duty was strictly that of the Respondent and not the Court, there must be even handed justice in the determination of matters. The other alternative would have been for the Respondent to apply that the exhibits be taken as read in the open Court, that way the Court could look into same and evaluate evidence therein in determining the counterclaim. Even at that, it is the duty of the witness to orally tie his testimony to the document. I find for the Appellant and issue one is resolved in favour of the Appellant that there was a breach of fair hearing, the Court below had no business sifting out relevant evidence on behalf of the Respondent.
Under issue two of the Appellant, the case for the Appellant is that the Respondent’s failure to call a third party who must have read the publications in Exhibit D16, D17 and D18 and which must have negatively influenced his opinion of the Respondent means the claim for defamation was not proved. Furthermore, the Appellant argued that the alleged libelous words were not pleaded as required by law.
To be able to deal with the issue properly there will be need to look at the pleadings in the counter claim. By paragraph 19 the Respondent claimed as follows:
The Defendant’s counter – claim is for the sum of N10 Billion Only as well as general damages for the negligent mis-statement, false and malicious publication wrote, printed and published or caused to be written, printed and published as a letter to the Police, and consequent actions taken by the Police in publishing Special Police Gazette Bulletin No. CR/3150/29/04/09 posted all over Nigeria and concerning the Defendant/Counter-Claimant.
The claim is therefore situated as malicious publication and not libel which is the appropriate categorization. The Respondent’s pleadings, by paragraphs 7-16 is specifically on the malicious publication. Paragraph 7 says:
On the 12th day of May 2009, the Police acting on the letter written by the Claimant’s solicitors falsely and maliciously wrote, printed and published, or caused to be written, printed and published a notice titled: SPECIAL POLICE GAZETTE BULLETIN NO. CR: 3150/29/04/09 with the defendant’s photograph and posted same on many public and private locations including all police stations, immigrations offices, airports, offices in Nigeria concerning the defendant the words following:
WANTED BY THE OFFICE OF THE COMMISSIONER OF POLICE SPECIAL FRAUD UNIT, LAGOS The above named person is hereby declared wanted by the Nigeria Police Force on C.R.O Form 5, issued by the office of the Commissioner of Police Special Fraud Unit, ‘D’ Department (Force C.LD.), Sunday Adewusi House, 13, Milverton Road, Ikoyi, Lagos. Warrant of Arrest has been duly obtained from Magistrate Court in Lagos.
She is wanted for the offence of Conspiracy, Forgery and obtaining the sum of N1,500,000,000.00 (One Billion Five Hundred Million Naira) under False Pretenses in Lagos on 22/04….. Method used in committing the Offence is by
through forgery and uttering False Documents to obtain Loan Facilities with a view to utilizing it for the Expansion of her Company DE-LORDS SECURITIES.
Last known Address: Plot 54, Road 14, Adebayo St., Off Admiralty Way, Lekki Phase 1, V/Island. Occupation: Business/Stock Broker: Tribe: Yoruba, Age 60 Years, Height 5FT, Nose Broad,. …… Small, Lips Thin, Teeth Good, Eye State Colour, Build Medium, Face Round, Complexion … Chin Round, Hair State Colour, Head Small, Forehead Low, Dress Always Corporate and ….time Native.
If Found, She should be apprehended and handed over to any Police Formation … Commissioner of Police Special Fraud Unit, ‘D’ Department (Force C.I.D), Sunday Adewusi ….. 13, Milverton Road, Ikoyi, Lagos OR Call: 08038658106.
There is reward for any person or persons who can give useful information to en….
It is clear that the publication in issue here was made by the police and not the Appellant/Claimant/Defendant to counter claim. The Appellant sent a petition to the Nigeria Police concerning the outstanding unpaid sum in respect of a facility granted the company and guaranteed by the Respondent. What is a publication? A publication has been defined as:
A statement in writing and one calculated to lower the person in the estimation of right- thinking men or cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business. See COMPLETE COMM LTD & ANOR V ONOH (1998) 5 NWLR (PT. 549) 197.”
From the pleadings, the alleged libel was published by the Appellant by means of Police Bulletins in newspaper which are defamatory of the Respondent. To prove libel, the claimant must establish the following:
i. The words complained of must have been written;
ii. The publication must be false.
iii. The words must be defamatory or convey defamatory imputation.
iv. The words must refer to the claimant.
v. It must be the defendant who published the words;
vi. The onus is on the plaintiff to prove he was the one referred to in the alleged libel. See GUARDIAN NEWSPAPERS LTD & ANOR V REV PASTOR C. I. AJEH (2011) LPELR-1343(SC).
It was established by evidence that the alleged publication was done by the Nigeria Police based on the Appellant’s petition to the Police. Before delving into whether the ingredients were established, there is need to resolve the burning issue of whether a complaint or petition to the Nigeria Police qualify is a publication to a third party? The Court in the case PASTOR BODE AJAYI V PRINCE SUNDAY AKINTAN FAYAN (2014) LPELR- 24344 (CA) held thus:
However, the Court held that an alleged publication or libelous words made to the police in the course of lodging a complaint with the police cannot form the basis of a claim for libel. See Monday Nwadinobi v Mrs Mary Botu (2000) 9 NWLR (Pt. 672) 220 at 229. Therefore, if the libelous words made to the police by the Appellants does not constitute a claim for libel, what does? In Nsirim v Nsirim (1990) 3 NWLR (Pt. 735) 285 at 298, a publication for purpose of libel was said to be the reduction of libelous matter to writing and its delivery to any person other than the person injuriously affected thereby. It went further to state that the name of the person to whom delivery of libelous document was made must be pleaded.”
Since it was established that there was a publication by the police and it is the law that the complaint by the Appellant to the police cannot qualify as libelous, it therefore means that it was not the Appellant that did the publication. The Nigeria Police who did the publication is not a party to the counterclaim and even if they were, the law absolves them from liability from such claims except if the claimant can prove malice and that the Appellant did more than filing a report.
Furthermore, the counter claimant is expected to plead to whom the publication was made, here it said to be the general public. This is another fundamental element missing in the entire case presented by the Respondent. A libel is a statement which exposes the person referred to hatred, odium, ridicule, or to be shunned or avoided and to be lowered in the estimation of right thinking people in the society. In establishing any of the above, the third party who was influenced by the said publication must be called to state so. The burden to prove the injury to the reputation of the counter claim is on the Respondent and it is the opinion of the third
party that matters and not the person whose reputation was injured. There must be proof by way of evidence that a third party read the publication and in whose opinion the publication made him have less respect for the claimant. See CHIEF SEN. LUKA GWOM & ANOR V PRINCE S.A. OROKOYO (2015) LPELR-24823(CA) where the Court held thus:
The fundamental principle is that the matter must be communicated to a third party in such a manner as to be capable of conveying the defamatory imputation about the plaintiff.
See also AMUZIE V ASONYE (2010) LPELR – 4758 (CA) where the Court held:
Thus there must be strict and positive of the essential ingredient of libel which is the publication of the libel to a third person. The onus is on the party alleging publication to prove same. Thus publication – that is the making know of the defamatory matter to some persons other than the person of whom it is written must be prove by the Appellant on the balance of probabilities. Where a plaintiff does not prove publication, no cause of action has arisen. See DAIRO v. UNION BANK (2007) 16 NWLR Pt.1059 pg.99
Merely giving evidence on the defamatory material is not enough in cases of libel where it is always emphasized that its publication be pleaded and testified upon before it can be regarded as proved. See OTOP V EKONG (2006) 9 NWLR Pt.986 P9.533.
The Respondent did not call anybody or a third party to show that the defamatory publication was read and that omission is fatal to the case of the Respondent. The opinion of the damaging effect of the publication cannot come from the Respondent alone. Reputation damaged is naturally the opinion of third parties and the person affected. The fact that the Chartered Institute of Stockbrokers asked for more clarifications as to how the Respondent resolved a publication in the newspaper declaring herself and her husband wanted is not proof of damaged reputation. And those are precautionary steps the Board has to take before it can consider a grant of fellowship status to the Respondent. That cannot without more correct the fundamental defect of failing to call a third part to testify. There is no proof to ascertain that the Institute had a damaging impression of the Respondent as a result of the publication. All that the Institute sought was for comprehensive details as to how the matter was resolved. In fact, the letter by the Institute did not directly make mention of any particular publication so there is no proof that its reference was to the publications in Exhibit D16, D17 and D18 made by the police. The apex Court in the case of AGBI v OGBEH(2006) 11 NWLR (Pt. 990) 65 has admonished Courts of law not to speculate on possibilities which are not supported by any evidence. No doubt, the Respondent failed to prove that her reputation was defamed in the mind of the Institute Board of Fellows. See OGBAJI V AREWA TEXTILES PLC (2000) 11 NWLR (PT. 678) 322 at 342 where it held thus:
To sustain a claim in damages under a claim for defamation, the plaintiff must prove not only the publication of the defamatory words about himself by the defendant; he must show that the words published are calculated to reduce his reputation in the opinion of other right thinking persons. This is so because the opinion of the plaintiff of himself does not count to establish a liability against the defendant, defamation can arise only where the plaintiff has proved his case.
See also the case of OGBONNAYA V FIRST BANK NIGERIA PLC (2015) LPELR 24731 (CA) where this Court per OBASEKI-ADEJUMO, JCA held thus:
Let me hasten to say here again that it is the impression a third party forms of the Plaintiff allegedly defamed that is relevant and not that which the Plaintiff forms of himself. Therefore, unless and until it is shown that a third party expresses his impression in relation to the alleged defamatory material, there cannot be any defamation in the legal sense.
As to whether a citizen commits libel by making a report to the police, the answer is No. Every citizen has a duty to report what he perceives as a crime to the Nigeria Police whose duty is to investigate crimes. what happens after the report or how the Police proceeds with the said investigation is purely their discretion. The defective pleading here which omitted the third party who read the publication and developed an adverse opinion of the Respondent and the failure to call such a third party to testify are fundamental defects that must defeat the counter claim.
On the second leg of the Appellant’s complaint
that the exact offending words must be pleaded, the Court below found that the words were pleaded. The publication cannot be the complaint written to the Nigeria Police, so the only publication to be looked into is the one in the newspapers [Exhibits D16 , D17 and D18] and since that was not by the Appellant, the issue of publication cannot therefore arise here.
On issue three, the natural consequences of what has been resolved hereinbefore, the award of N10 million made in favour of the Respondent cannot be justified as the counterclaim was not proved according to law. The offending publication was done by the Nigeria police in the course of their investigation and not the Appellant. This fact was admitted by the Respondent in answer to questions under cross-examination and this was fatal to the case of the Respondent. The Appellant cannot therefore shoulder the blame of the Nigeria Police, if any. Arguments by the Respondent that some situations of libel do not require third party evidence may be correct but that applies where the party alleged made the publication and not when the publication was made by a different party entirely. More so, the petition cannot qualify as publication. The facts here do not qualify for the application of those exceptions as in the cases cited by the Respondent, like inapplicability of qualified privilege and malice.
In the case of OSAYANDE v ETUK (2008) 1 NWLR (PT. 1068) 211, the Court held:
Members of the public have a duty to complain of another to the police, and the police have a duty to receive the information. The duty to receive the information may be legal or moral. The occasion is privileged, and no publication of libel is made in such event. In the instant case, the police from commissioner to Inspector in Lagos and Uyo, had a legal duty to receive complaints from members of the public including the appellant on a privileged occasion. [Mamman v Salaudeen (2005) 18 NWLR (Pt. 958) 478.] Per. OMAGE, J.C.A. The Court in the same case per NGWUTA, JCA further held:
It will be a serious setback in the investigation and prevention of crime in this country to hold,Â as the Court below did hold, that the assignment of a complaint by a superior, to a subordinate police officer for investigation amounts to publication of libel in the complaint to the Investigating police officer for the purpose of damages for libel. Citizens of this nation who have genuine grounds for complaint to the police will out of fear of being held liable in damages for libel, think hard and twice before making a complaint to the police and society wilt be worse off for it.
See also the case of GBAJOR v OGUNBIREGUN (1961) ALL NLR 853 @ 856. The alleged libelous publications here are Exhibits D16 , D17, and D18 and all were by the Police. I am of the view that libel was not established according to law to warrant the judgment. In the absence of proof of all the ingredients of libel, damages cannot be lawfully awarded. The award is unjustified and cannot stand.
Flowing from above, issue four becomes otiose and superfluous because the essence of the issue has been resolved earlier in this judgment. The alleged offensive publication was by the police and not the Appellant and they are not parties to this case, neither was a third party called to justify the defamation. The petition by the Appellant to the police does not qualify as publication. Ultimately, the counter claim was not made out and ought to have been dismissed. The Court also did the unthinkable of being an extension of the counter claimant in reading exhibits and sifting out favourable evidence to establish the counterclaim. That breached the rule of fair hearing. The appeal is meritorious.
The appeal succeeds and the judgment of the trial Court delivered by HON. JUSTICE M.O OBADINA delivered on the 25th of May, 2015 is hereby set aside. The counter claim is dismissed for lacking in merit.
No order as to cost.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in draft the closely-reasoned judgment prepared by my learned brother Yargata Byenchit Nimpar, J.C.A., with which I agree with nothing extra to add.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: My learned brother, Yargata Byenchit Nimpar, JCA, made available to me the draft of the lead judgment which has just been delivered.
Having also read the Records of Appeal and briefs of argument I find that the manner of resolution of the issues in the lead judgment accord with my views. It is therefore for the same reasons therein contained that I also join in allowing the appeal. I abide by the consequential orders made in the lead judgment.
A.O.S HODONU with him,
O.S HODONU, I.O.S HODONU
and E.A ADEWUNMI-For Respondent