Guaranty Trust Bank Plc V. Mr. Hussein Fadlallah (2009)

LawGlobal-Hub Lead Judgment Report

BABA ALKALI BA’ABA, J.C.A.

The respondent in this appeal was the plaintiff before the lower court, in the writ of summon, dated the 28th day of March, 2001, filed on the 14th day of May, 2001, he claimed as follows:-

“(1) A declaration that the purported deed of personal guarantee allegedly by the plaintiff for the full repayment of the full amount of N20,000,000.00 plus the accrued interest thereon, granted to Abdulhassan Sulaiman & Sons Limited is fictitious, fraudulent, nonexistent and therefore null and void.

(2) A declaration that the plaintiff is not indebted or liable to the defendant to the tune of N20,000,000.00 plus the accrued interest thereon or in any other sum at all, based on the purported deed of personal guarantee dated 12-01-96.

(3) A declaration that the contents of the defendant’s letter addressed to the plaintiff and dated 10th March, 1999 are frivolous, malicious and defamatory of the plaintiff.

(4) Damages in the sum of N50,000,000.00 (Fifty Million Naira) for defamation of character, mental agony and emotional stress resulting from the defendant’s frivolous claims, unlawful threats, etc. contained in its said letter of 10th March, 1999.

(5) An order of perpetual injunction restraining the defendant either by itself, servants, agents, receivers, managers, known or called from exercising any rights, powers, authority, etc. directed to or against the plaintiff or his other related business interests under or in pursuance of the purported deed of personal guarantee.

(6) An order of perpetual injunction restraining the defendant either by itself, servants, agents privies, or howsoever known or called from further publishing anything that is capable of defaming the plaintiff’s character.

(7) An order directing the defendant t make amends by tendering an unreserved written apology to the plaintiff.

(8) The Court rate interest of 10% per annum on any judgment sum from the date of judgment until full and final liquidation.

(9) The cost of filing and prosecuting this action as well as legal costs.”

Pleadings were ordered, filed and exchanged.

As the action was brought on the pleadings, it is pertinent to reproduce the pleadings of the parties that I consider relevant in determining whether evidence was led by the party in support of his case.

From a careful examination of the statement of claim contained at pages 4 – 6 of the printed record, I find the paragraphs reproduced below relevant:

“3. On the 10th day of March, 1999, the defendant caused to be published a letter titled “Re: AbdulHassan Suleiman &. Sons Ltd; call on Personal Guarantee” wherein the defendant stated; that the plaintiff by a Personal Guarantee dated 12th January, 1999 the plaintiff guaranteed a facility of N20,000,000.00 (Twenty Million Naira) granted to one AbdulHassan Suleiman &. Sons Ltd and that the said facility had expired but has not been retired.

4. The plaintiff avers and will prove at the trial that the purported guarantee dated 12th January, 1996 was never issued by him.
5. The plaintiff avers further that the purported guarantee dated 12th January, 1996 is infact non existent, fictitious, fraudulent.
6. The plaintiff avers and will prove that the defendant knew fully well that the plaintiff did not issue the alleged guarantee dated 12th January, 1996 and the defendant Banks alleged claim of N20, 000,000.00 under the said guarantee is baseless, but the defendant deliberately published its letter of the 10th of March, 1999 in order to embarrass, harass, cause mental agony psychological

problem and emotional grieve and distress to the plaintiff.

7. The plaintiff avers that the contents of the defendants letter of 10th March, 1999 was injurious falsehood, malicious propaganda, calculated to expose the plaintiff to hatred and did infact caused the plaintiff such public ridicule, public odium and hatred.
8. The plaintiff avers further that he suffered great mental agony, emotional stress and psychological problems and enormous distress arising from the publication by the defendant to several public and private for a of the contents of the letter dated 10th March, 1999.
9. The plaintiff avers that he is still suffering from these adverse and negative consequence of the defendants conduct.
10. The plaintiff avers that to further harass, intimidate embarrass and scandalize the plaintiff, the defendant instructed a solicitor to institute an action in furtherance of the bogus and baseless claim, the defendant and the said solicitor further caused to be published a sworn affidavit and filed same in court in suit No: K/551/99 to the effect that the plaintiff is a debtor when such a claim is baseless and without any foundation whatsoever. ”

The paragraphs of the statement of defence that I consider relevant are as follows:-

“SAVE AND EXCEPT as it is hereinafter admitted the defendant denies each and every allegation of fact contained in the statement of claim as if the same were set out seriatim and traversed paragraph by paragraph.

1. The defendant admits the averments in paragraphs 1, 2 and 3 of the statement of claim. The defendant shall aver however that the letter in issue is against the Guarantee dated 23rd of January, 1996 (and not 12th January, 1996) but also “in the interest thereon and all other charges, costs expenses payable” thereunder.
2. Further to the above, the defendant avers that the principal debtor, Abdul-Hassan Suleiman &. Sons Ltd’s indebtedness as at 30/6/99 is N126,080,493.50 which the plaintiff herein guaranteed. The plaintiff guarantee as well extend for all moneys borrowed and liabilities incurred until liquidation of the entire facility.
3. The defendant bank had issued a writ for the recovery of this debt against the said principal debtor and the plaintiff herein in Suit No. K/551/99. The plaintiff had put up appearance therein. The defendant shall lead evidence that this action is an abuse of court process.
4. The defendant denies paragraph 4 of the statement of claim and shall contend at the trial that the plaintiff issued a personal guarantee dated 23rd day of January, 1996 in favour of the defendant to guarantee the account of Abdul-Hassan Suleiman &. Sons Ltd. The defendant shall at the trial of this suit, rely on the said personal guarantee. The plaintiff is merely playing on the error of date contained therein to avoid its liability in the Guarantee. There is only one Guarantee in issue.
5. Paragraph 5 of the statement of claim is denied. The plaintiff would contend at the trial that there is an existing personal guarantee executed in favour of the defendant for the facility granted Abdul-Hassan Suleiman & Sons Ltd.
6. The defendant denies paragraph 6 of the statement of claim and says that it’s letter of 10th day of March 1999 was a simple demand on the plaintiff to meet his obligation arising from the said personal guarantee, the defendant in the letter, called in the facility which as at then and against the plaintiff is N20 Million.
7. The defendant avers that it will contend at the trial that interest of over N5 Million accrues from the amount guaranteed by the plaintiff.
8. The defendant avers further to paragraph 4 of the statement of defence above that the plaintiff has not suffered any of the things he alleged to have suffered in paragraph 7, 8 and 9 since he has always been aware of his commitment to the defendant because of the said personal guarantee.

In the alternative, the defendant states that those sufferings are self-inflicted arising from the plaintiff’s indebtedness to so many banks, and in respect of various facilities. The defendant shall lead evidence in proof of this averments.

10. The defendant admits paragraph 10 of the statement of claim only to the extent that it brought an action before the Kano State High Court against Abdul-Hassan Suleiman & Sons Ltd and his guarantors including the plaintiff to pay their indebtedness to the defendant on account of overdrawn account of the said Abdul-Hassan Suleiman & Sons Ltd which the plaintiff and two others guaranteed.
11. The defendant shall at the trial of this suit rely on the current statements of the said Abdul-Hassan Suleiman & Sons Ltd with the defendant bank and the personal guarantee of the plaintiff and other letters and correspondences with the plaintiff and they are hereby pleaded.”

Having joined issues in their pleadings, hearing commenced with the respondent who was the plaintiff giving evidence for himself but did not call any other witness. The evidence of the respondent as plaintiff is contained at pages 11 – 14 of the printed record.

The appellant as defendant also testified at pages 19 – 20 of the record but did not call any other witness.

At the conclusion of the hearing and address by counsel to the parties, the learned trial Judge, in his reserved and considered judgment contained at pages 26 – 36 inter alia held at page 33 of the record as follows:-

“It is normally in respect of the case of publication that proceedings for libel are brought. It is very clear that the orders to write the defamatory false and careless letter came from the management of the bank. Then the letter was typed by the typist or computer operator, sighed the 2 signatories and sent to the plaintiff through a messenger who was a given a copy of the letter. The copy of the same letter was shown to the secretary of the plaintiff who read the letter before signing the acknowledgment copy. Then the acknowledged copy was returned to the accountant of the bank for his action in 7 days time.

The court must hold that there are so many publication letters to third parties who are themselves liable to be jointly sued for the libel against the plaintiff. ”

The learned trial Judge at page 34 further held:

“It is very clear that the words in exhibit 1 letter dated 10th March, 1999 was defamatory and that it was calculated to lower the estimation of the plaintiff among his business partner, customers and bankers.

The court must hold that the defendant bank are fully liable for the authorization and publication of the defamatory letter among their staff and the staff of the plaintiff.”

In conclusion at pages 35 – 36 of the record, the trial Judge held:

“In the circumstances the court has decided to enter judgment for the plaintiff on the following terms:-

(1) That the purported deed of personal guarantee allegedly by the plaintiff to the tune of N20 Million plus the accrued interest thereon, granted to Abdul-Hassan Suleiman & Sons Ltd is fictitious fraudulent null and void. The guarantee never existed at all.

(2) That the plaintiff is not indebted or liable to the defendant to the tune N20 Million plus the incurred interest thereon or in any way based on either the purported guarantee dated 12th January, 1996 for N20 Million or even the proper guarantee dated 23rd January, 1996 which no facility was granted and subsequently discharged.

(3) That the contents of the defendants letter addressed to the plaintiff and dated 10th March, 1999 are frivolous malicious and defamatory of the plaintiff.

(4) That the defendant is perpetually restrained either by itself, servants, agents, receivers, auctioneers or howsoever known or called from exercising any rights, powers, authority etc directed to or against the plaintiff or his other related business interests under or in pursuance of the purported deed of personal guarantee dated 12th January, 2002 except with the orders of a court of law.

(5) That the defendant is perpetually restrained either by itself, servants, agents, privies or howsoever called or known from publishing any allegation of indebtedness against the plaintiff or publishing anything that is capable of defaming the plaintiff’s character.

(6) That the defendants are ordered to make amends by tendering unreserved and unconditional written apology to the plaintiff.

(7) That the defendant shall pay N500,000.00 (Five Hundred Thousand Naira) as damages for defamation of character, mental agony and emotional stress resulting from the defendants frivolous claims, unlawful treats etc contained in its said letter dated 10th March, 1999.

(8) That if the defendant fails to offer apology within 30 days they shall pay additional N100,000.00 (One Hundred Thousand Naira) as further damages”

The appellant was dissatisfied with the judgment of the lower court as a result he filed a notice of appeal at pages 68 – 71 of the record consisting of eight grounds of appeal.

The appellant in his appellant brief dated the 28th day of January, 2005, filed on the 31st day of January, 2005, sought for leave of this Court to file two additional ground of appeal and amend the original notice of appeal, the said application was granted by this Court on the 22nd day of March, 2005 and the amended notice of appeal attached to the application was deemed properly filed and served on the 22nd day of March, 2005.

Briefs of argument were filed and exchanged between the parties in accordance with the Rules of Practice and Procedure of this Court.

At the hearing of this appeal which came up on the 21st day of April, 2009, counsel to the parties adopted their respective briefs without advancing any oral argument.

The appellant, in the appellant’s brief dated and filed on the 9th day of May, 2005, formulated four issues for determination in this appeal from his grounds of appeal contained in his amended notice of appeal. The four issue at page 5 of the appellant’s brief are as follows:-

“(i) Whether in the circumstances of this case and having regard to the contents of exhibit 1, it is defamatory of the respondent.

(ii) Whether in all the circumstances of this case publication of the alleged defamatory letter was proved.

(iii) Whether the learned trial Judge gave adequate consideration to the evidence adduced by the parties before him.

(iv) Whether the respondent proved the case made out by him on his pleadings. ”

The respondent on the other hand in the respondent’s brief of argument dated the 27th day of April, 2006, deemed filed on the 6th day of April, 2006 formulated a single issue for determination in this appeal at page 8 of the respondent’s brief as follows:-

“Whether in all the circumstances of this case, and having regard to the contents of Exhibit 1, the pleadings, the evidence led and the state of the law, the plaintiff/respondent made out a case of libel against the defendant/ appellant before the Court of trial.”

The respondent at pages 2 – 3 of the respondent’s brief filed a notice of preliminary objection part of which reads as follows:

“The grounds of is as follows:

(1) That the Notice of Appeal, which is the foundation of the appeal is incompetent as it does not contain all the essential particulars of a valid Notice of Appeal, thereby affecting the jurisdiction of this Court to hear the appeal.”

Arguing the preliminary objection at pages 3 – 8 of the respondent’s brief, he stated that it must be borne in mind that the Notice of Appeal is a very important document because it is the foundation of the/ appeal. Pointing out that everything that makes it valid must be clearly set out therein as a defective Notice of Appeal goes beyond mere irregularity but touches upon the jurisdiction of the Court to entertain it. He further stated that one of the most important features of a valid Notice of Appeal is that it must state clearly the suit number of the judgment/case being appealed against which must be clearly set out in the body of the Notice of Appeal. It is however, interesting to note in the instant appeal that both the original and amended Notices of Appeal filed in this appeal that the suit number of the case in respect of which judgment an appeal is taken is omitted.

Reference was made to the original notice of appeal and amended notice of appeal stressing that the suit in respect of which judgment and an appeal is taken is omitted.

In support of his submission he placed reliance on the authority of FUND LINK FINANCE AND INVESTMENT LTD & ANR. VS. CONFIDENCE INSURANCE PLC (2001) FWLR (PT.35) 805 and INYANG & ORS VS. EBONG (2002) 2 NWLR (PT.751) 284 at 305.

According to the learned counsel for the respondent, the question as to whether a proper Notice of Appeal has been filed against a judgment of the court below is a matter which touches on the jurisdiction of the Court of Appeal not merely a matter of procedural law but that of substantive law. It is argued that if no proper notice has been filed by the appellant, the appellate court has no jurisdiction to entertain the appeal. See OYEBADE VS. AJAYI (1993) 1 NWLR (PT. 269) 316 at 330. Learned counsel for the respondent emphasized that the defect cannot be cured by filing an amended Notice of Appeal. It is contended that in the instant appeal, the judgment appealed against is not related to any suit consequently there is no valid Notice of Appeal.

In conclusion, learned counsel for the respondent urged the court to strike out the appeal as being incompetent.

In the appellant’s reply brief dated the 22nd day of April, 2007, learned senior counsel for the appellant, in reply stated that it is the contention of the respondent that the appeal is incompetent and invalid because the Notice of Appeal does not contain all the essential particulars, it is expected to contain.

Based on the contention of the learned counsel for the respondent, he submitted that no where throughout the argument of the learned counsel for the respondent stated the Rules of Court which states that it is not sufficient to state the number of the suit at the tops right hand corner of the Notice of Appeal or any where on the Notice of Appeal provided it is discernible.

Learned senior counsel for the appellant referred to the case of FUNDS LINK FINANCE AND INVESTMENT LTD & ANR VS. CONFIDENCE INSURANCE PLC (supra) relied upon by the learned counsel for the respondent and stated that the case is not applicable to issue in this appeal in that the issue above mentioned was a case in which the prayer in the motion on notice failed to state the suit number on which the applicant applied for an order. The basis of the decision in that case was the fact that it was impossible for the Court to make an order without knowing the suit number about which the order sought to be made. Learned senior counsel reproduced the ruling of the Court of Appeal in respect of the case in his reply brief at pages 2 – 3.

It is argued by the learned senior counsel that in the instant appeal, it is not the contention of the learned counsel for the respondent that there was no suit number in respect of the case appealed against but that the suit number ought to have been stated after the words “NOTICE OF APPEAL” and not before the words “NOTICE OFAPPEAL”.

It is further submitted by the learned senior counsel for the appellant that no rules of Court was referred by the learned counsel for the respondent in support of the claim of the learned counsel for the respondent that this notice is invalid. According to the learned senior counsel for the appellant that the High Court suit number appearing on the top right corner of the Notice of Appeal has substantially complied with the requirement of the law.

He referred the Court to the case of the BANK OF THE NORTH AND ONE OTHER VS. C.T. AKPAJA (2003) FWLR 693 at 701 and urged the Court to overrule the objection.

From the submission of the learned counsel for the respondent it appears to me that the respondent is not contending that the suit No. of the High Court case appealed against has not been stated but that it ought to have been stated after the word, “NOTICE OF APPEAL”.

In other words the learned counsel for the respondent is complaining against the form rather than the substance.

I have carefully examined the two Notices of Appeal, the original and the amended notice of appeal I find that the High Court suit number K/314/2001 appears in both Notices of Appeal. I do not think anybody from a glance of the said Notices of Appeal will have any difficulty in knowing that the appeal is in a particular suit number.

The Supreme Court of Nigeria in the case of FAMFA OIL LTD VS. ATTORNEY – GENERAL OF THE FEDERATION AND ANR (2003) 18 NWLR (PT.852) 453 at 471 – 472, held that the Supreme Court has consistently shifted away from the narrow technical approach to justice which characterized some earlier decisions of Court on substantial matters and now pursue instead the case of substantial justice.

Accordingly, Court should not be unduly tied down by technicalities, particularly where no miscarriage of justice would be occasioned.

Justice can only be done in substantive and not by impeding it with new technical procedural irregularities that occasioned no miscarriage of justice.

In my humble view, the learned senior counsel for the appellant having stated the suit number appealed against stated earlier in this ruling he has substantially complied with the requirement of the law and for that reason, the preliminary objection is hereby overruled in the interest of justice to the parties.

Having overruled the preliminary objection, I will now proceed to consider and determine the appeal.

Perhaps, I should make it clear from the onset that having carefully examined the issues formulated by the learned counsel to the parties, they appear to be the same though differently worded. I find the sole issue formulated by the learned counsel for the respondent all encompassing and apt for the determination of this appeal.

The learned senior counsel for the appellant in the appellant’s brief commenced his submission by stating that the learned trial Judge in his judgment held that the letter exhibit I, in the proceedings is defamatory of the respondent. Reference was made to the judgment of the lower court particularly to the contents of exhibit I, the letter of demand to the respondent by the appellant. It is submitted by the learned senior counsel for the appellant that exhibit I, is a letter of demand and not defamatory of the respondent. He reproduced the contents of the said letter at page 6 of the appellant’s brief. He stated that sting of the libel according to the respondent is that there is no guarantee dated 12th January, 1996, instead there is guarantee dated 23rd January. That the amount guaranteed is N5 Million and not N20 Million as stated and the guarantee has been discharged and the company did not obtained any money from the guarantee. It is contended by the learned senior counsel for the appellant that the respondent claim that the guarantee has been discharged is not supported by evidence. He pointed out that at the trial the date of the guarantee was also put in issue as the letter exhibit 1 states that the guarantee is dated 12th January, 1996, but exhibit 2 at the trial shows that the guarantee was for N5 Million Naira dated 23rd January, 1996.

Learned senior counsel for the appellant submitted that from the evidence, it could be seen that there is a guarantee by the respondent for the indebtedness of the company. He pointed out that there was evidence that the respondent guaranty was for N5 Million, which has not been disputed by the respondent. Learned senior counsel stated that although the respondent claimed that the guaranty has been discharged, there is no evidence in support of his claim. It is further submitted that there is evidence from the appellant, stating that the N5 Million guarantee has risen to N12 Million Naira.

Reference was also made to the date of the guaranty by learned senior counsel for the appellant which he said was not put in issue at the trial.

It is pointed out that although the letter of demand stated the date of the guaranty to be 12/1/96, but exhibit 2 admitted in the trial stated the date of the guarantee as 23/1/96.

It is argued that inspite of the difference in the dates of the guarantee it could be seen that there was a guarantee for indebtedness by the respondent to the Bank, that is the appellant.

Learned senior counsel for the appellant based on the evidence referred posed a question as to what then is the sting of the libel? In an attempt to answer the question, learned senior counsel for the appellant stated that from the way the respondent stated his case before the trial Court that the failure to get accurate date of guarantee and the amount guaranteed that the respondent complained about is being defamatory. It is argued that the respondent did not plead the material facts in his pleadings at the trial.

Reference was made to the case of THE SKETCH PUBLISHING CO. LTD. & ANR. v. ALHAJI AZEEZ A. AJAGBEMO KEFERI (1989) 1 NWLR (PT.100) 678 at 698, on the definition of defamation and submitted that the words in the letter of 10th March, 1999 are not defamatory of the respondent as exhibit A, is a mere letter of demand, requesting the respondent to pay up the amount he guaranteed.

He referred to the evidence of the sole witness for the appellant in the lower court who confirm the guarantee of N5 million Naira and further state that the amount has risen to N12 Million but contended that there is no finding by the learned trial judge as to outstanding amount guaranteed or to the discharge of the said guarantee as demanded by the respondent.

In conclusion, learned senior counsel for the appellant urged the court to allow the appeal.

In his response, learned counsel for the respondent submitted that there are specific allegations in exhibit I that is the respondent guaranteed a facility of N20 Million Naira that the guarantee is dated 12th January, 1996, that the guarantee is overdue for payment, that the respondent has not paid and the respondent is by virtue of this is now indebted to the appellant in the sum of the guarantee but all the allegations turned out to be false and incorrect.

According to the learned counsel for the respondent, exhibit I in the present circumstance was injurious to the financial credit of the respondent. It is the submission of the learned counsel for the respondent that the law looks at the tendency and consequences of the publication matter than the motive or intention of the publisher. See NEVILL v. FINE ARTS CO. (1895) 2 Q.B. 156 at 163.

At page 15 of the respondent’s brief stated by the learned counsel for the respondent that publication is the making known of the defamatory matter after it has been written to some person other than the person of whom it is written. That if the statement is sent straight to the person of whom it is written, there is no publication of it because you cannot publish a libel of a man to himself.

In the view of the learned counsel for the respondent, the respondent as plaintiff did not have to prove the libelous contents of exhibit I which were infact brought to the notice of some third party.

Learned counsel for the respondent concluded that no one other than the respondent who was the plaintiff testified but it is not true that there was no proof of publication having regard to the general circumstances of the case and urged the court to hold that there was publication of exhibit I. Learned counsel for the respondent urged the court to 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 v. SPEIDEL (1961) A.C 1126 at PP 1143 – 1144, R.v. LAMBERT (1810) 2 Camp 398 at 400 – 401 and OGUNBADEJO v. OWOYEMI (1993) 11 NWLR (PT.271) 517 at 533. Paragraph 221 at page 103 – 104 of GATLEY AND SLANDER SEVENTH EDITION 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.”

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 respondent of the libel complained of does not constitute publication to found an action for libel.

The first issue for the court to decide is whether there was publication of the complained alleged to have been made in the letter dated the 10th day of March, 1999, admitted in evidence marked exhibit I.

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.

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 it 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, only the respondent testified and tendered the alleged defamatory letter, admitted in evidence marked exhibit I. The respondent who was the plaintiff, however, did not call any other witness to prove publication of exhibit I, the letter from the appellant alleged to be defamatory hence the publication of the letter exhibit I has not been proved. In the absence of proof of publication, the most important ingredient of libel has not been established.

In the circumstance of this appeal, it is therefore unnecessary to even consider and determine the sting of the letter exhibit I.

Having regard to the aforesaid, I hold that the appeal is meritorious and is hereby allowed.

In the result, the judgment of the Kano State High Court in suit No. K/41A/2003, delivered on the 14th day of May, 2003, by B.S. Adamu, J, of the Kano State High Court, is hereby set aside and substituted with an order of dismissal of the suit with costs assessed at N5,000.00 at the lower court and N30,000.00 in this Court against the respondent in favour of the appellant.

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Other Citations: (2009)LCN/3344(CA)