Air Vice Marshal Victor C. Akiti V. Punch Nigeria Limited & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
BABA ALKALI BA’ABA, J.C.A
This is an appeal against the judgment of the Kaduna State High Court of Justice, Kaduna Judicial Division delivered on the 30th day of November, 2004.
The appellant by his paragraph 15 of his statement of claim, claimed as follows:-
“WHEREOF the Plaintiff claims against the Defendants jointly and severally as follows:-
(a) A Declaration that the words complained of, published by the Defendants of and concerning the Plaintiffs are defamatory of the Plaintiff.
(b) An Order of permanent injunction restraining the Defendants either by themselves or through their servants, agents, proxies or howsoever from any further publication of the words complained of or any similar libelous words about the Plaintiff.
(c) The sum of N10,000,000.00 (Ten Million Naira) only being exemplary and/or aggravated general damages for libel.”
Pleadings were filed and exchanged by the parties.
The background facts leading to this appeal as gathered from the statement of claim briefly are as follows:
The appellant who was the plaintiff at the lower court, was a two star General in the Nigeria Airforce (NAF) and was at the material time, the Air Officer Personnel (A.O.P.) at the Defence Headquarters, Lagos. The appellant has served in various capacities in the Air Force, and in recognition of his meritorious services, he is the recipient of several awards, decorations and medals including the National Award of Commander of the Order of the Niger (C.O.N.).
The 1st respondent is a Lagos based Limited Liability Company and a registered print media house and the proprietor and publisher of THE PUNCH NEWSPAPER amongst other newspaper titled. The 2nd respondent was at the material time the Editor of THE PUNCH NEWSPAPER while the 3rd respondent was the Kaduna State reporter/correspondent of the said PUNCH NEWSPAPER. THE PUNCH which is published by the 1st respondent is a daily Newspaper which has a large circulation all over the world, Nigeria generally and Lagos State in particular (including Lagos Island) where the appellant resides and/or is carrying on his duties as a Two Star General in the Nigeria Airforce. The appellant avers that on the 31st day of July, 1998 at the back page of the PUNCH (VOL. 17, No. 17, 482) under the captioned “AIRFORCE SUED OVER ILLEGAL DETENTION” the respondents falsely and maliciously published or caused to be published, of, and concerning the plaintiff the following story/words:-
“THE Nigerian Airforce (NAF) has been dragged to the Federal High Court, Kaduna, over the illegal detention of some civilians in Jos and Lagos, in connection with the theft of N.4 million belonging to a Senior Air Force Officer. In the suit filed by the former Gongola State Military Governor, Colonel Yohanna Madaki (Rtd), on behalf of Esther Azi and Joy Ede, the Court heard that on April 28, 1998 an Air Force Personnel at NAF Headquarters, Lagos, AVM Victor Akiti, ordered the arrest of the Plaintiffs without resort to the due process of law.
According to the charges, AVM Akiti, who presided over the court marshal of nine Air Force Officers for fraud in 1996 was accused of illegally detaining Esther azi the fiancee of his orderly Mr. Ejike Oneli, following his inability to arrest his orderly for the alleged theft of N.4 million from his car boot.
Colonel Madaki prayed the court to award the sum of N3.7 million against the NAF, AVM Akiti and the Attorney-General of the Federation, as general and special damages to his clients jointly and severally, for indignity they suffered and for the violation of their rights in detention.
The Air Force Officer refused to be served the Court summons instead, he detained the Court Baliff who delivered the summons at the NAF Headquarters in Lagos.
The plaintiffs’ counsel has been granted leave to serve the defendants through courier.
In another development, a Lagos-based law firm, Shinkafi, Kusamotu, Olojo and Company, has also dragged the NAF and AVM Akiti before the Court over the illegal detention of Mr. Emmanuel Oneli, his orderly’s elder brother, Lance corporal Ejike Oneli, whom he accused of absconding with his N.4 million at a girl friend’s party.
The Plaintiff’s lawyer, stated that his client was detained on the orders of AVM Akiti on January 24, 1998 at the Air Force Base, Ikeja, after attempts to trace his orderly had failed. He urged that the action was in total violation of the rights of the detainee, who knew nothing about the alleged theft.
AVM Akiti had earlier accused his orderly of absconding with his N.4 million, removed from the boot of his official car on December 15, 1997 at a party in Lagos, which led to the arrest and detention of his relations, including his fiancee, Miss Esther Azi.
No date has been fixed for the hearing of the suits, but the Defendants, NAF, AVM Akiti and the Attorney-General have been asked to be served their summons by courier.”
The appellant further avers that the said words contained in the natural and ordinary meaning, meant and were intended to mean that:-
“(a) The Plaintiff is a lawless person who has no regard for the due process of law.
(b) The Plaintiff is a violent, angry and dangerous person who has no respect for human dignity. (c) The Plaintiff is a shameless and morally deprayed person who does not deserve the high office he occupies. .
(d) The Plaintiff is a dis-orderly, disoriented and aggressive person who has brought his exalted position nto disrepute.”
As the action was fought on the pleadings, it is pertinent to reproduce the relevant paragraphs of the pleadings of the parties relied upon in proof and defence of the action. Paragraphs 8, 9, 10, 11, 12, 13 and 14 of the statement of claim contained at pages 13 – 14 of the printed record are as follows:-
“8. The Plaintiff avers that though it is true that he is the First Defendant of three defendants in a Suit filed by one ESTHER B. AZI and MRS. JOY EDE (NEE ONELI) at the Federal High Court, Kaduna, pleadings had not been exchanged and hearing had therefore not commenced at the time of offending publication.
- The Plaintiff further avers and will contend at the trial that the story is entirely false, in so far as it relates to alleged court proceedings and the testimony of witnesses before the Federal High Court, Kaduna. The Plaintiff will at the Hearing rely on the certified true copies of all process/documents filed in Court as at 31st July, 1998 in Suit No. FHC/KD/CS/51/98 especially the following:-
(i) Application for Writ of Summons;
(ii) Baliff’s affidavits of service, and
(iii) Various motions filed by the Plaintiff in the case in issue.
- The Plaintiff avers that the story caused, quite a stir in official, unofficial circles, necessitating his explanation to various persons/groups in order to set the record straight.
- By the publication which is totally false and baseless, the Plaintiff has been injured in his credit, reputation and in his office and career and has been brought into public scandal, odium, riddicle and contempt.
- The Plaintiff avers that the publication was made in utmost bad faith, improper motive and was designed and calculated to destroy his image and personality especially in Government quarters and to jeopardize his career prospects.
- The Plaintiff’s solicitors by their letter of 28th September, 1998 for and on behalf of the Plaintiff on his instruction demanded, amongst others a retraction of the story and an apology from the defendants. Plaintiff shall rely on the said letter at the hearing of this suit.
- The Plaintiff avers that the Defendants in their wisdom refused to even acknowledge the said letter let alone comply with the demands therein.”
The relevant paragraphs of the joint statement of defence of the 1st – 3rd defendants/respondents are to be found at pages 35 – 36 of the record and are as follows:-
“SAVE AND EXCEPT as is hereinafter specifically admitted the 1st, 2nd and 3rd Defendants (hereinafter referred to as Defendants) deny each and every allegation of fact contained in the Statement of Claim as if they are set out seriatim and specifically traversed.
- Paragraphs 1, 2, and 5 of the Statement of Claim are denied and shall put the Plaintiff to the strictest proof thereof.
- The Defendants admit paragraphs 3 and 4 of the Statement of claim.
- With regard to paragraph 6 of the Statement of Claim (which is denied) the defendants state as follows:
a) That a Suit No. FHC/KD/CS/51/98 filed at Federal High Court in Kaduna having the Plaintiff as the 1st defendant and dated 7th October 1998 filed by the Chambers of Yohana Madaki and Company and containing the averments in paragraph 6 of the Statement of Claim; Certified True Copy of the processes of the said Suit obtained from the Court shall be relied upon.
b) The Chambers of the said YOHANA MADAKI & CO AND SHINKAFI, KUSAMOTU, OLOJO & CO have written letters concerning the illegal detention of ESTHERB. AZI, MRS. JOY EDE (NEE ONELI) and EMMANUEL IFEANYI ONELI on the Orders of the Plaintiff to the Plaintiff. The said letters shall be relied upon at the trial of this action.
c) The Defendants shall establish by documentary evidence that averments contained in paragraph 6 of the Statement of Claim is true in substance and in form.
- The Defendants deny paragraphs 10, 11 and 12 of the Statement of Claim and shall establish that the Plaintiff could not have suffered the injury mentioned in paragraph 11 of Statement of Claim as the publication was without malice or prejudice against the Plaintiff and the words therein were accurately stated.
- The Defendants will object at the trial of this action that the said words referred to in paragraph 6 of the Statement of Claim are not actionable without proof of special damage or otherwise.
- In further reference to paragraphs 10, 11 and 12 of the Statement of Claim the Defendants states that the words complained of in paragraph 6 did not bear or were understood to bear or are capable of bearing the meaning alleged in paragraphs 10, 11 and 12 of the Statement of Claim or any other meaning.
- The Defendants aver that the said words set out in paragraph 6 of the Statement of Claim were court records published on privileged occasion.”
The appellant at page 37 of the record filed a reply to the Statement of Defence.
As issues have been joined between the parties, hearing commenced with appellant as plaintiff testifying as P.W.l at pages 69 – 75 of the record. The 1st – 3rd respondents as defendants also called only one witness who testified at pages 75 – 95 of the record.
The proceedings of the lower court containing portion of the evidence of PW.1, at pages 70 – 72 of the record reads:-
“I know the 1st def, it is a publishing organisation which publishes the punch newspaper and distributes same around Nigeria, abroad and it is particularly prevalent in Lagos where I worked. I also know the 2nd and 3rd defendant. The 2nd defendant was the Editor of the 1st defendant. The 3rd defendant was at the time the Kaduna Correspondent of the 1st defendant. On 31/7/98 the Punch carried an article which stated that the Nigeria Airforce had been sued for illegal detention etc. The publication was precisely about me. I can identify the publication if I see it by the date and the headline. It carries the names of the Editor and the correspondents. I see this paper it is the publication.
Edegware: We seek to tender the Punch Newspaper in evidence.
Ogunbiade: We are objecting to its admissibility. The plaintiff has not complied with the provision of S.97(1)(e) E/A Newspapers are kept as public documents in Archives and Libraries. So it falls under the definition of public documents under section 109(b) E/A. There must be compliance with Section 111 E/A. The witness has not said he bought the Punch Newspaper. He has not stated how he got the paper. The document is not certified.
Edegware: The objection is misconceived for the following reasons:
- The publication is admitted by the defence, and for that reason there is no justification for the objection. Paras. 3 (a) & (c) of the S/D refers. We do not even have to prove the publication since it has been admitted.
- The publication is by a Private Limited Liability co by a none governmental media house. It is for all practical purposes not a public document. No law has cited to show that Newspaper must be kept in the Archives or Library; and the court should not be invited to make assumption even if by any stretch of the migration the documents is classified admitted by them and that admission supercedes any technicality the defence wants to raise.
Ogunbiade: We admitted the publication of the words and not the Newspaper sought to be tendered. The court is entitled to take cognizance of all laws. I am relying on Newspaper law, to say that it has to be kept as public document.
Edegware: I apply to withdraw the document.
Ogunbiade: I urge the court to rule on the admissibility of the document. They fulfill the conditions, and tender it.
Court: The plaintiff sought to tender a copy of a Newspaper and the defence objected to its admissibility on the grounds that the plaintiff has not satisfied certain conditions for its admissibility. The plaintiff now seeks to withdraw the paper and again the defence has objected and says there should be a ruling on the plaintiff’s application to tender the paper in evidence. Am of otherwise.
As I have said, the objection is that some conditions have not been met and Mr. Ogunbiade has also said that when the conditions have been fulfilled the plaintiff can come back to tender the document, in other words, it is not that the document is legally inadmissible in evidence. In my view therefore, the document can be withdrawn since no ruling has been made before the application to withdraw was made. Application to withdraw is therefore granted and the paper is accordingly withdrawn. ”
P.W.1 continues at pages 72:-
“The allegations are contained in my S/C para. 6 thereof. The story contained in para. 6 of my S/C is totally false without any iota of truth. It is malicious, deliberately published in order to portray me as lawless unfit to hold high offices, degrade and absolutely untrustworthy, irresponsible and thereby damaged my person, credibility, my family name and reputation. I am aware that there is a suit initiated by Col. Madaki’s chambers and I am a defendant in the suit. Hearing had not been commenced as at the time of the publication. The allegations or publication could not have been based on evidence in court. I instructed my lawyer to obtain from the court records information regarding the suit, these are the summons, motions, affidavit or service. I see these documents. They are the document obtained by my lawyer.”
At pages 75 – 95, D.W.1, Inuwa Bwala, the 3rd respondent testified on behalf of the 1st – 3rd defendants/respondents and denied the claim of the respondent as the plaintiff.
At the conclusion of the evidence of the parties, the trial court at pages 120 – 121, the learned trial Judge held:
“The plaintiff in this case did not call any third party who was given or purchased a copy of the story or document complained of, and referred to in paragraph 10 of the statement of claim. The effect of this in law is that there is no evidence of publication of the alleged defamatory matter or story to anybody at all. The plaintiff has therefore failed to proved publication.
It may well be that the defendants have admitted writing the story, going by the evidence of DW1, but which they denied in their paragraph 3 of their statement of defence, and the plaintiff failed to produce and tender a copy of it in evidence, but the plaintiff cannot succeed in the absence of the document complained of being in evidence and in view of the fact that there is no evidence of publication as required by law. I held the view that these are facts and matters that cannot be presumed.
In a case of defamation of character, be it libel or slander, there are certain basic facts which a plaintiff must prove for his case to take off and these include:
(a) Publication of the defamatory matter.
(b) The publication must refer to the plaintiff.
(c) The publication must have been made y the. Defendants (sic)
(d) The publication must be false.
The plaintiff in order to succeed must plead and prove all these facts.
In the instant case, the plaintiff has failed to prove the existence of the defamatory matter. He has failed to prove publication; and having failed to prove these facts, the question of proving that the publication was made by the defendants and that it was false, can hardly arise. They can only arise if the publication is first proved.”
The learned trial Judge concluded as follows:
“Having failed to prove the existence of the alleged defamatory matter and publication, I think that, like His Lordship TOBI, J.C.A. said in GIWA VS. AJAYI (supra), “To me, that ends the matter.”
The plaintiff having failed to prove the existence of any defamatory matter against, and concerning him, and having failed to prove publication of any such defamatory matter, his first prayer for a declaration that the words complained of, published by the defendants of, and concerning the plaintiff are defamatory of the plaintiff, cannot be granted. Same is accordingly dismissed.
In my respectful view, the second and third reliefs sought can only succeed if the first relief is granted. In other words, the second and third reliefs must necessarily collapse with the collapse of the first relief; consequently, the second and third reliefs also fail and are hereby dismissed. On the whole, the plaintiff’s case has not been proved and must be, and is hereby, dismissed.”
Being dissatisfied with the judgment of the trial court, the appellant, by his notice of appeal dated the 18th day of December, 2001 containing three grounds of appeal at pages 124 – 125 and are as follows:
“Ground 1:
The learned trial Judge erred in law when he held that plaintiff failed to prove the existence of the defamatory matter and the fact of publication.
Ground 2:
The learned trial Judge erred in law when he held that pleadings are mere allegations of facts and do not constitute evidence.
Ground 3:
The judgment is against the weight of evidence adduced at the trial in support of the claim and in rebuttal of the defence(s) advanced.”
Briefs of argument were filed and exchanged by the parties in accordance with the rules of Practice and Procedure of this Court.
At the hearing of the appeal which came up on the 24th day of March, 2009, counsel to the parties adopted their respective briefs without advancing any oral argument.
The appellant in his brief of argument dated the 29th day of October, 2004, filed on the 2/11/04 formulated two issues for determination in this appeal as follows:
“(1) Whether the failure of the appellant to tender the exact Newspaper publication containing the words complained of was fatal to the appellant’s case.
(2) Whether from the totality of the evidence adduced by the plaintiff and the defendants and considering the state of pleadings publication was in issue between the parties.”
The 1st – 3rd respondents on the other hand in their undated brief filed on the 12th day of January, 2005 formulated only a single issue as follows:
“Whether publication of the alleged libel was established by the plaintiff (appellant) at trial.” From a careful study of issue number one formulated by both the appellant and the respondents, the issue is virtually the same though differently couched, I therefore find issue number one formulated by the appellant and the 1st – 3rd respondents appropriate and apt for the determination of the appeal.
Taking into consideration, the pleadings, evidence adduced and the judgment I adopt the sole issue formulated by the 1st – 3rd respondents for the determination of the appeal. I therefore intend in the determination of the appeal to consider the submission of both counsel relevant to the said issue only.
The learned counsel for the appellants Mike Edegware, Esq, in the appellant’s brief dated the 29th day of October, 2004, commenced his submission by conceding that one of the basic ingredients which a plaintiff alleging defamation must prove is publication of the defamatory matter by the defendant. See DUMBO S. IBUGBOE (1983) 1 S.C.N.L.R. 29 at 46. It is also conceded that in the absence of proof of such publication, a plaintiff’s action must fail.
Learned counsel stated that however looking at the state of pleadings in this case, was publication really in issue as to warrant the plaintiff/appellant embarking in proof of same?
According to the learned counsel for the appellant the answer to the question raised by him is in the negative.
It is argued that by virtue of Section 75 of the Evidence Act, Cap 112 Laws of the Federation of Nigeria no facts need be proved in any civil proceedings which the party thereto or their agents agree to admits at the hearing or which before the hearing they agree to admit by any writing under their hands or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings.
Reference was made to paragraph 3(c) and 6 of the 1st – 3rd respondents’ statement of defence by the learned counsel for appellant who claimed that the 1st – 3rd respondents admitted the publication but pleaded justification. Pointing out that no where in the said statement of defence did the 1st – 3rd respondents alleged that the exact/entire words complained of by the appellant had not been reproduced. It is the view of the learned counsel for the appellant that it is not necessary to tender the printed publication. According to the learned counsel for the appellant the finding of the learned trial Judge that the 1st – 3rd respondents having admitted publication makes the tendering of the Newspaper publication in evidence surplussage consequently it makes no difference even though the plaintiff claim is declaratory in nature.
It is contended by the learned counsel for the appellants that the cases of IGBINOVIA VS. UNIBEN TEACHING HOSPITAL (2001) FWLR (PT.50) at 1745, FAPONME VS. UNILORIN TEACHING HOSPITAL BOARD (1991) 4 NWLR (PT. 183) 43 and AJAKAIYE VS. OKANDEJI &. 2 ORS. (1972) 1 S.C. 92 are inapplicable in this case.
In conclusion, learned counsel for the appellant urged the court to hold that the failure of appellant as plaintiff to tender the precise Newspaper publication was not fatal to the appellant’s case and allow the appeal.
Responding to the submission of the learned counsel for the appellant, learned counsel for 1st – 3rd respondents, stated that the whole essence of this appeal concerns the appellant’s contention that the defendants in their statement of defence admitted publication of the alleged defamatory matter, thus rendering further proof of it unnecessary at the trial by virtue of section 75 of the Evidence Act, and the rules of pleadings.
He submitted that the appellant has misconceived what amounts to publication in the tort of defamation, as pointed out by the learned trial Judge. It is further submitted by the learned counsel for the 1st 3rd respondents that it is the function of the learned trial Judge to determine whether a party admitted the publication in his pleadings and referred to Section 75 of the Evidence Act.
Reference was made to paragraph 3, 5, 6, 7 and 8 of the statement of defence of the 1st – 3rd defendants/respondents by the learned Judge who refused to agree with the submission of the learned counsel for the appellants that the respondents as appellants admitted the claim of the appellant as plaintiff.
It is further submitted by the learned counsel for the 1st – 3rd respondents that an action in libel is only maintainable when the words complained of as well as the defamatory imputations have been published, not simply to the plaintiff, but also to a third party and referred to GATLEY ON LIBEL AND SLANDER EIGHT EDITION PARAGRAPH 221 AT 101. He stated that it is not the mere writing of a defamatory matter that constitutes publication.
It is contended by the learned counsel for the 1st – 3rd respondents that the appellant was under obligation during the trial to establish inter alia the existence of the said Newspaper Edition containing the libel.
Concluding his submission, learned counsel for the 1st – 3rd respondents, urged the court to resolve the sole issue in favour of the 1st – 3rd respondents against the appellant and dismiss the appeal.
Now the first duty of a plaintiff who comes to court in a case of libel contained in a document is, subject to recognized exceptions to produce and tender the whole of the original document complaining of as well as any connected documents which are capable of throwing any light on the meaning of the word complained of to be read and construed by the court. This is a duty which the plaintiff owes to the defendant and the court. See PLATO FILMS VS. SPEIDEL (1961) A.C 1126 at PP 1143 – 1144, R.VS. LAMBERT (1810) 2 Camp 398 at 400 – 401 and OGUNBADEJO VS. OWOYEMI (1993) 11 NWLR (PT.271) 517 at 533.
Paragraph 221 at page 103 – 104 of GATLEY AND SLANDER SEVENTH EDITION referred to by the learned counsel for the 1st -3rd respondents, reads as follows:
“No civil action can be maintained for libel or slander unless the words complained of have been published. “That material part of the cause of action in libel is not the writing, but the publication of the libel.” By “publication” is meant “the making known of the defamatory matter, after it has been written, to some person other than the person of whom it is written. If the statement is sent straight to the person of whom it is written there is no publication of it.” “The uttering of a libel to the party libelled is clearly no publication for the purposes of a civil action.” A communication of the defamatory matter to the person defamed cannot injure his reputation though it may wound his self-esteem. A man’s reputation is not the good opinion he has of himself, but the estimation in which others hold him. If then the libellous matter be delivered only to the plaintiff himself there is no publication, and therefore no action will lie. Nor is there publication if it is handed, folded up but not sealed, to a third party to deliver to the plaintiff, and such person so delivers it without reading it himself or allowing anyone else to read it. So in the case of a slander, the words must be uttered in the hearing of some third person. If they are uttered in the hearing of the person slandered only, there is no publication, and therefore no action will lie.”
An action for libel must fail if publication of the defamatory matter is not proved. The proof must be given by admissible evidence as it is the publication that gives a cause of action. The material part of the cause of action in libel is not the writing, but the publication of the libel. See HEBDITCH VS. MACLWAINE & ORS. (1894) 2 Q.B. 54 at 61, BATA VS. BATA (1948) W.N. 366 and CHIEF O.N. NSIRIM VS. NSIRIM (1990) 3 NWLR (PT.138) 285 at 297.
What then is meant by publication?
By publication it is meant the making known of the defamatory matter to some persons other than the person of whom it is written. The writing of a libel to the person or ” party libelled does not constitute publication for the purposes of a civil cause of action. Thus, the publication to the appellant of the libel complained of does not constitute publication to fund an action for libel.
The first issue for the court to decide is whether there was publication of the complained of alleged to have been published in the Punch Newspaper of the 31st of July, 1998 Vol. 17 No.17, 482 under the caption “AIRFORCE SUED OVER ILLEGAL DETENTION.”
However, it is not necessary in all cases to prove that the libellous matter was actually brought to the notice of some 3rd party. If it is made a matter of reasonable inference that such was the fact, a prima facie case of publication would be established. This is particularly so where book, magazine or Newspaper containing a libel is sold by the defendant. A libel in any of such documents, is therefore prima facie evidence of publication by the Proprietor, Editor, Printer and publisher, and any person who sells or distributes it.
Pleadings serves as life-wire of a claim but without proof thereof it serves no effectual purpose. The primary function of a pleading is to defined and delimit with clarity and precision of the real matter in controversy between the parties upon which they can prepare and present their respective cases. In addition, it also serves the basis upon which the court will be called to adjudicate between them. This principle has been restated in the case of MR. OSAZEE OJO VS. MRS JACOB ESOHE &. ORS (1990) 5 NWLR (PT.603) 351 at 444.
It follows therefore that the two most significant aspect of a claim are pleadings and the evidence to prove thereof. Where evidence is not aligned with pleadings, it will serve no useful purpose to the claimant. The ultimate resultant effect will give rise to the pleadings being abandoned on the one hand while also expunging the unsupported evidence on the other hand which cannot stand without a foundational base.
It is trite law under the Evidence Act as in civil cases, the burden of proving a particular fact is upon the party who asserts it and who will fail if no evidence is called upon the issue, regard being to any presumption which may arise from the pleadings of the parties. This onus of proof is however not static if continually shifts from side to side in respect of a fact in issue until finally rests on a party against whom judgment will be given if no further evidence is proffered before the court. See IGWE VS. AFRICAN CONTINENTAL BANK PLC. (1999) 6 NWLR (PT.605) 1, FADLALLAH VS. AREWA ILES LTD. (1997) 8 NWLR (PT.518) 546, OKINDOLE VS. OYAGBOLA (1990) 4 NWLR (PT.147) 723 and H.M.S. LTD. VS. F.B.N. (1991) 1 NWLR (PT.167) 290 and FIRST AFRICAN TRUST BANK LTD. VS. PARTNERSHIP INVESTMENT COMPANY LTD. (2003) 18 NWLR (PT.881) 35 at 73.
As could be seen from the proceedings of the lower court herein reproduced, the appellant as plaintiff merely made an attempt to tender the publication complaint against at the hearing but withdrew his application as a result of an objection by the learned counsel for the 1st – 3rd defendants/respondents as a result the appellant closed his case without tendering the said publication in evidence.
It cannot therefore be disputed that in the instant appeal, the appellant failed to prove the first ingredient of the case that is proving the publication. It appears that the appellant relied on the excerpt reproduced in his pleading.
It must be appreciated that there cannot be a better notice of the case a party intends to make then his pleadings. It is a mere notice and can never be substituted for the evidence required in proof of the facts pleaded, subject however, to an issue made through skillful cross-examination which discredit the case of a party, he is still bound to lead evidence in support of pleadings. See NWANJI VS. COASTAL SERVICES NIG. LTD (1999) 11 NWLR (PT.628) 641 at 649.
In view of the aforesaid, I see no substance in this appeal.
In the result, I hold that the appeal lacks merit and is hereby dismissed by me. The judgment of the Kaduna State High Court in ” suit No. KDH/KAD/143/99, delivered on the 30th day of November, 2001, by G.I. Kurada, J, of the Kaduna State High Court is hereby affirmed with costs assessed at N30,000.00 favour of the 1st – 3rd respondents against the appellant.
Other Citations: (2009)LCN/3277(CA)
