Air Vice Marshal Mahmoud Yahaya (Rtd.) V. Major Hassan T. Munchika (Rtd.)(2000)
LawGlobal-Hub Lead Judgment Report
MAHMUD MOHAMMED, J.C.A.
This is an appeal against the judgment of the High Court of Justice Kaduna State at Kaduna delivered by Abiriyi J. on 1/4/98 dismissing the suit of the appellant. The claim of the appellant who was the plaintiff against the respondent who was the defendant at the High Court as contained in the writ of summons is for:-
“Damages against the defendant in the sum or N10,000.000.00 (Ten Million Naira only) arising from a libel which the defendant falsely and maliciously wrote and published in a letter titled “PETITION FOR REDRESS AGAINST AVM YAHAYA MAHMOUD (RTD) AND SQN LDR AMEGO” addressed to the Commissioner of Police dated 31st December, 1996 and copied to several notable personalities in the country of and concerning the plaintiff in the following manner amongst others:-
‘…from all indications they had put a full stop to the case since they retrieved their car which was barely damaged impact’. Page 4 of the petition.
The AVM, who was not the driver of the vehicle has used his position as a retired senior military officer to see that his son does not face the law as required, and together with SQN LDR Amego have violated all procedures of law as laid down in a civil case of which this is one page 5 of the petition.”
The appellant as the plaintiff duly filed his statement of claim which was duly served on the defendant/respondent, who despite several adjournments granted to him by the trial court, failed to file and serve his statement of defence. The case was accordingly heard and determined by the trial court on the plaintiff/appellant’s statement of claim alone with the appellant as the only witness for the plaintiff. The defendant/respondent who did not file his statement of defence did not also call evidence nor even cross-examine the plaintiff/appellant after testifying in chief. All the same, the learned trial Judge in his judgment delivered on 1/4/98 after reviewing the evidence on record came to the conclusion that the plaintiff/appellant did not prove his case against the defendant/respondent and therefore dismissed the claim. Part of that judgment reads:-
“For the foregoing finding of this court that there was no publication and no defamatory meaning can be given to the words complained of. I am of the view that the case of the plaintiff should be dismissed.”
Aggrieved by that judgment, the plaintiff/appellant had appealed against it to this court upon his Notice of Appeal containing 6 grounds of appeal including the omnibus ground of appeal No.1 which was framed as follows:-
“1. The decision is unreasonable and cannot be supported having regard to the evidence before the court.”
At the hearing of the appeal on 19/1/2000, learned counsel to the respondent raised objection to this ground of appeal as being incompetent. Learned counsel to the appellant had no answer to the objection. I entirely agree with the learned counsel to the respondent that the above quoted ground: one of the word appellant’s grounds of appeal as presently couched plainly leaving out the word ‘weight’, the present appeal being a civil appeal, the ground is clearly incompetent having regard to the following decisions in the cases of ATUYEYE V. ASHAMU (1987) 1 NWLR (Pt.49) 267; IHEWUEZI V. EKEANYA (1989) 1 NWLR (Pt.96) 239: ROYAL NETHERLANDS V SAMA (1991) 2 (Pt.171) 64 and ABASI V. THE STATE (1992) 8 NWLR (Pt.260) 383. Accordingly, ground one of the appellant’s grounds of appeal is hereby struck out. In any case, it is observed that in fact, no issue for determination was specifically framed from that ground of appeal now struck out.
Briefs of argument were duly filed and served between the appellant and the respondent. In the appellant’s brief of argument the following two issues for determination were formulated from the remaining 5 grounds of appeal.
“1. Whether upon the state of pleadings and evidence, the necessary ingredients of libel were established to make a dismissal of the suit unjustifiable.
- If libel was proved whether the alternative award by the learned trial Judge was adequate.”
In the brief of argument filed by the respondent however, four issues for determination were identified. The issues are:-
“1. Whether the 1st ground of appeal is valid having regard to the fact that this is a civil, not a criminal case,
- Whether paragraphs 3 ,4 and 5 of the statement of claim qualified as averments of publication and proof of publication of Exhibit 1, the alleged defamatory letter.
- Whether it was not inherent and apparent in Exhibit 1 itself and the evidence adduced by PW1 to justify the decision that a prima facie case of defamation was not made out to warrant a defence.
- Whether having regard to the fact that no apology was sought before the suit and the holding that circulation of Exhibit 1 to anyone else was not proved, was the hypothetical award of N50,000.00 damages not unnecessarily generous?.”
It is observed that as the respondent’s issue No.1 arising out of his preliminary objection to the appellant’s ground of appeal No.1 has been disposed of already while the respondent’s Issue No.4 is the same as the appellant’s Issue No.2 and the respondent’s Issues 2 and 3 are virtually the same as the appellant’s Issue No.1, the three issues in the respondent’s brief are in fact the same as the two issues in the appellant’s brief of argument. I shall therefore proceed to determine this appeal on the two issues as identified in the appellant’s brief of argument.
The first issue for determination therefore is whether having regard to the state of pleading and the evidence, the necessary ingredients of libel were established to make the dismissal of the appellant’s action by the lower court unjustifiable. Learned counsel to the appellant referred to the provision on Order 26 Rule 4 of the Kaduna State High Court (Civil Procedure) Rules 1987 and submitted that since the respondent did not file any statement of defence to the appellant’s claim, the appellant is deemed to have established his case and as such the learned trial Judge was left with only the task of assessing damages. Citing the decision of this Court in the case of UNION BANK OF NIGERIA LTD. V. OREDEIN (1992) 6 NWLR (Pt.247) 355 at 371, learned counsel argued that all the ingredients a plaintiff is required to prove in a claim for libel have been established by the appellant in the present case as his evidence remained uncontradicted and unchallenged.
On requirement of publication, the appellant’s counsel referred to paragraph 3, 4 and 5 of the appellant’s statement of claim and the contents of Exhibits 1 and argued that the form of the defamatory material being in writing was not in doubt. That as there was no statement of defence to controvert the facts averred in paragraphs 12, 13, 14, 15 and 16 of the Statement of claim in which the appellant denied the allegations and insinuations in Exhibit 1, on the authority of AMERICA CYNAMID v. VITALITY PHARM. LTD (1991) 1 NWLR (P1.171) 15 at 30, these paragraphs were deemed admitted without further proof. That in the circumstances of this case and the case of BAMGBOYE V. OLAREWAJU (1991) 4 NWLR (PI.184) 132 at 144 – 145 the finding of the lower court that there was no publication of the contents of Exhibit 1 including to the Police and the fact that the appellant had interfered with the Police investigation in the matter were in fact perverse as they constitute a defence of justification which was not put up by the respondent.
On the requirement of publication to a third party, appellant’s counsel relied on the definition of the word ‘copy’ in Black’s Law Dictionary and argued that since the respondent did not join issue with the appellant on any aspect of this case including the issue of publication, the claim was deemed admitted and hence the need to lead evidence in proof of publication did not arise. That in any case, since on the face of Exhibit 1, it has been shown that it was copied or circulated to the people mentioned therein, on the authority of the cases of NSIRIM V. NSIRIM (1990) 3 (Pt.138) 285 at 298 and EJABULOR V. OSHA (1990)5 NWLR (Pt.148) 1 at 13, on the admission of the respondent, publication was deemed proved.
On the requirement of whether publication referred to the appellant, learned counsel submitted that the appellant pleaded and gave evidence on this fact. That the appellant was falsely accused in Exhibit 1 of interfering in the Police investigation of the case involving his son by preventing the law from taking its course and perverting the course of justice. Learned counsel concluded that to level such false attack on the appellant who is a retired – two star General, had indeed exposed him to contempt and ridicule in the society and therefore constituted a defamation of his character as to have entitled the appellant to judgment.
It was contended for the respondent however that paragraphs 3 ,4 and 5 of the appellant’s statement of claim do not amount to publication because paragraph 3 merely stated that Exhibit 1 was dropped at the residence of the appellant while paragraph 4 and 5(a) – (f) merely gave caption to Exhibit 1 and stated those people Exhibit 1 was said to have been copied to respectively. That since Exhibit 1 did not state those listed in it were also copied the document, there is no evidence of receipt by any other person. Learned counsel referred to the definition of the word ‘delivery’ in Black’s Law Dictionary and submitted that the word ‘copied’ relied upon by the appellant does not satisfy the requirement or delivery even if Exhibit 1 were copied to the parties listed therein. That the case of Ejabulor v. Osha (1990) 5 NWLR (Pt.148) relied upon by the appellant is distinguishable with the present case because in that case there was a press release delivered at a press conference.
As for the requirement that the contents of Exhibit 1 were false, learned counsel to the respondent contended that the requirement was not proved because even the evidence of the appellant himself substantially supported the contents of Exhibit 1. That for that reason, the inference drawn by the learned trial Judge from the oral evidence of the appellant and the contents of Exhibit 1, does not amount setting up a defence of justification for the respondent but that the conclusion that the appellant had failed to prove his case was quite in order having regard to the case of EKANEM-ITA V. FETUGA (1991) 7 NWLR (Pt.204) 449 at 474.
With regard to the reliance on Order 26 Rule 4 of the Kaduna State High Court (Civil Procedure) Rules 1987 by the appellant, learned counsel observed that as the issue was not raised at the lower court, it cannot now be raised before this court on appeal without leave as was stated in the case of TUKUR V. TARABA STATE (1997) 6 SCNJ 81 at 99; (1997) 6 NWLR (Pt.510) 549. That in any case, argued the learned counsel, admissions do not constitute conclusive proof of matters admitted but may operate only as estoppel as was decided in KAMALU V. UMUNNA (1997) 5 SCNJ 191 at 206-207: (1997) 5 NWLR (Pt.505) 321.
On the question of whether the contents of Exhibit 1 particularly the facts averred in paragraph 6 of the appellant’s statement of claim are defamatory, learned counsel referred to EKANEM-ITA V. FETUGA (SUPRA) and argued that taking into consideration the entire circumstances and the sense in which Exhibit 1 was written, the contents are not at all defamatory and relying on the case of BALOGUN v. U.B.A (1992) 6 NWLR (Pt.247) 336 at 351-35, the respondent was right in resting his case on that of the appellant resulting in the dismissal of the case of the appellant by the trial court.
Indeed, the main issue for determination in this appeal is whether upon the state of the appellant’s statement of claim and his evidence, the necessary ingredients of libel were established thereby making the dismissal of the appellant’s suit by the lower court unjustifiable. In his arguments in support of this main issue for determination the appellant’s counsel relied on the decision of this court in UNION BANK OF NIGERIA LTD. V. OREDEIN (1992) 6 NWLR (Pt.247) 355 at 371 and 375 where my learned brother Tobi J.C.A. listed down the essential ingredients of the tort of defamation and libel which a plaintiff must prove in order to succeed in his claim. These requirements are that the publication was in writing, that it was false, that it was defamatory of the plaintiff, that it was published to a third party and that it was the defendant who published the defamatory words. Once the requirements are proved by the plaintiff, his claim must succeed. See NSIRIM V. NSIRIM 1990) 3 NWLR (Pt.138) 285: DIN V. AFRICAN NEWSPAPERS OF NIGERIA LTD. (1990) 1 NWLR (Pt.139) 392 and ONYEJIKE v. ANYASOR (1992) 1 NWLR (Pt.218) 437.
In the present case having regard to the arguments advanced in the respondent’s brief of argument and the fact that Exhibit 1 containing the alleged defamatory materials was duly admitted in evidence in the course of the proceedings at the lower court which were not contested by the respondent, the respondent appeared to have conceded that Exhibit 1 was written by him and that was indeed in writing. Therefore, the ingredients that are being contested in this appeal are the fact that the publication Exhibit 1 was false, that it was published to some other persons other than the appellant and that it was referred to the appellant who was the plaintiff and was defamatory of him.
In determining whether or not the word or publication complained of are false, it is necessary to quote paragraph 6 of the statement of claim where the words were pleaded. Paragraph 6 of the statement of claim reads:-
”6. At pages 4 and 5 of the said letter, the defendant wrote of and concerning the plaintiff in the following manner:
‘By the time we got to the station on Monday as appointed, I was informed by the DPO that he was having difficulty in contacting the AVM, the SQN LDR, or the AVM’s son. From all indications, they had put a full stop to the case since they had retrieved their car which was barely damaged by the impact… I am by this petition sir, appealing that you use your good office to see that justice prevails. The AVM, who was not the driver of the vehicle has used his position as a retired Senior Military Officer to see that his son does not face the law as required, and together with SQN LOR, Amego have violated all procedures of the law as laid down in a civil case of which this is one.’
The plaintiff shall rely on the whole letter at the trial of this case.”
In order to determine whether the paragraph of the statement of claim complained of is true or false, it is necessary to refer to the evidence of the appellant himself on the events regarding the accident of his son that gave rise to the action now on appeal. The appellant testified at pages 15 and 16 of the record as follows:
“I retired on 23/9/90. I spent 30 years in the Nigerian Air force. I first met the defendant on 25/12/96. On that very day I was in my house my son sent a message that he had an accident that I should come. That was around 3.00 pm… I went the scene of the accident. There I discovered that the car my son was driving Reg. No.FC5052C was bashed at the rear. At the time I went the defendant was not there. I met my son there. Shortly, the defendant came on a motorcycle with a civilian who was purported to be a Policeman. The Policeman came and made a statement that my son was at fault without stating the situation…
When the Policeman started drawing the sketch, my son objected… At that point, I asked who was the defendant and he was mentioned to me. I asked him what the problem was. At that point, he told me that my son hit his car. When the policeman finished the sketch there was a dispute. My son said he was not satisfied with the sketch. I was about to go home. I told my son to go to the Provost Command so that they can come and see that justice is done. He went and the Provost Personnel came together with a Police Sgt. At that point, my son complained to the Police Sgt that he was not satisfied with the police in Mufti that came to draw the sketch. Before then, the policeman who came with the Provost Personnel draw another sketch. To the best of my knowledge both sketches were not signed. I was present when my vehicle was driven to the DPO’s Office by Squadron Leader Amego…The next day the same plain clothed policeman came to my house. He asked for my son and my son went/came to meet him…The following day the Squadron Leader applied for the car from the DPO and it was released to him. We parked it for over six months. Squadron Leader Amego came and said the V.I.O. requested for the car. He took it to the V.I.O. and returned it to later to the house. After that i.e. about two to three days later the D.P.O U/Rimi came to my office and introduced himself as D.P.O. U/Rimi Station. He said he came to discuss about the accident and that he would like my son to go and give a written statement. I said I had no objection, since then, the case had been in court.”
Taking into consideration that the accident involving the appellant’s son took place on 25/12/96 and by the time the appellant was giving the above quoted evidence at the lower court on 27/10/97, the case against his son was still in court and that the DPO had to seek for the appellant’s consent before the statement of his son involved in the accident with the respondent could be recorded by the police in the course of their Investigation into the case. I am also of the view that the contents of Exhibit 1 and particularly the part quoted in paragraph 6 of the appellant’s statement of claim are in fact not false. That essential ingredient in proof of a claim for libel had therefore not been established by the appellant.
Next for determination is whether the words complained of were in fact published to any third party other than the appellant himself. It is well settled that no civil action for libel is maintainable unless the words complained of have been published. The Supreme Court held in NSIRIM V. NSIRIM (1990) 3 NWLR (Pt.138) 285 that material part of the cause of action in libel is not writing per se, but the publication. In order to constitute publication, the defamatory matter must be published to a third party and not merely to the plaintiff himself. See NSIRIM V. NSIRIM (SUPRA) where the plaintiff alone discovered the defamatory material where the defendant kept it.
Publication is the making known of the defamatory matter, after it had been written and sent to a third party other than the plaintiff. See EJABULOR V. OSHA (1990) 5 NWLR (Pt.148) 1 at 20.
In the present case, were the contents of Exhibit 1 particularly the part quoted in paragraph 6 of the appellant’s statement of claim made known to any other party other than the appellant himself? The answer of course is in the negative. The stand of the appellant that since the respondent did not contest the action he was deemed to have admitted publication by virtue of the judgment of the lower court having been obtained under Order 26 Rule 4 of the Kaduna State High Court (Civil Procedure) Rules 1987, this point of law was not raised and dealt with at the lower court as the appellant did not apply for judgment under that Rule at the lower court. In the absence of any law granted by the lower court or this court to the appellant to raise this new point of law before this court in this appeal, I cannot now rely on it in the determination of this appeal. See ORDER 2 RULE 2 (6) OF THE COURT OF APPEAL RULES 1981 AND UNION BANK OF NIGERIA LTD V. ODUSOTE BOOKSTORE LTD (1995) 9 NWLR (PT.421)588.
Although, it is observed from the appellant’s claim in the writ of summons that he specifically complained that the alleged defamatory material in Exhibit 1 was published by the respondent, such allegation on publication of the material by the respondent was not pleaded in any of the Appellant’s paragraphs in his statement of claim and not to talk of giving evidence on the same. To merely plead and testify that Exhibit 1 was copied to the parties listed therein, is certainly not enough. In any case on the face of Exhibit 1, there is nothing to show that it was copied to the parties listed therein not to talk of making the contents of Exhibit 1 known to the parties. On the pleading and the evidence on record therefore, I entirely agree with the learned trial judge that the appellant had failed to prove that the contents of the alleged defamatory material complained of was published to any other person other than the appellant himself.
Next for determination is whether the words complained of in paragraph 6 of the appellant’s statement of claim are in fact defamatory of the appellant as he claimed. In deciding whether a word is capable of defamatory meaning, the court will reject that meaning which can only emerge as the product of strained or forced or utterly unreasonable interpretation. See DUMBO V. IDUGBOE (1983) 1 SCNLR 29 At 48. The test is whether under the circumstances in which the writing was published, reasonable men to whom the publication was made would be likely to understand them in libelous sense. See JONES V. SKELTON (1963) 1 WLR 1362. The meaning ascribed to the whole of Exhibit 1 and paragraph 6 of the appellant’s statement of claim by the learned trial Judge is quite in order. In any case this court is also in as a good position as the trial court to determine what is natural and ordinary meaning of the words complained of. See the SKETCH PUBLISHING CO. LTD V. ALHAJI AJAGBEMOKEFERI (1989) 1 NWLR (PT.100) 678. In this respect I entirely agree with the inferences drawn by the learned trial Judge from the evidence before him including Exhibit 1 that the contents of Exhibit 1 and particularly paragraph 6 of the appellant’s statement of claim are not defamatory. I have myself scrutinized the contents of the alleged defamatory words and having regard to the evidence adduced by the appellant, I have also drawn the same inference from those words and came to the conclusion that the words were not in fact defamatory. The exercise here is to give the words complained of their natural and ordinary meaning. It would have been otherwise if the trial Judge had based his findings entirely on credibility of the witnesses. See AKINOLA V. OLUWO (1962) 1 ALL NLR 224. (1962) 1 SCNLR 352. In fact taking into consideration the evidence of the appellant in support of his claim, the fact that as a retired two Star General, being a highly respected member of the Armed Forces of this country and being once a member of the highest Ruling Body in the country, the Armed Forces Ruling Council, all the same the appellant chose not only to attend but also to remain at a scene of a minor road accident involving his son and the respondent for hours where he showed no faith in the authority of the police under our laws to investigate and apportion blame for the accident and preferred provost personnel of the Nigeria Air force to do justice to the case when he ought to have known that the provost personnel have no power under the law to do ‘justice’ to the case, the words complained of as defamatory are nothing but a fairly accurate description of the conduct of the appellant in the transaction. This is particularly so when the poor investigating Police Officer and the D.P.O. Ungwan Rimi himself had to personally call on the appellant to allow his son being accused of a minor traffic offence to go to the police station so that his written statement could be recorded. The very fact that the accident occurred on 25/12/96 and by the time the appellant was testifying at the lower court on 27/10/97, the case against his son on this minor traffic accident was still pending in court, has surely confirmed the fears of the respondent that the appellant and the provost personnel he had sent for to do ‘justice’ to the case particularly the role of Squadron Leader Amego who obtained the release of the appellant’s car involved in the accident a day after the accident and who also took the same car to the V.I.O. from the house of the appellant for examination, were trying to put a full stop to the case against the appellant’s son.
Although the learned counsel for the appellant had made a heavy storm over the failure of the respondent to defend the action relying on the case of MOGAJI & ORS V. ODOFIN & ORS (1978) 4 SC 91 that the respondent not having filed a statement of defence nor called any evidence, the appellant whose evidence was not challenged was entitled to judgment, the position of the law does not relieve the appellant in such circumstances of his responsibility to prove his case. For issues in such circumstances in which a defendant calls no evidence are provable by the plaintiff on minimal of proof. See NWABUOKU V. OTTI (1961) 1 ALL NLR (PT.2) 489; (1961) 2 SCNLR 232; ATTORNEY GENERAL OYO STATE V. FAIR LAKES HOTELS LTD (NO.2) (1989) 5 NWLR (PT.121) 255 AND BALOGUN V. U.B.A. LTD. (1992) 6 NWLR (PT.247) 336 AT 351.
Furthermore, the claim of the appellant being in the nature of declaration that the alleged defamatory material were libelous of his reputation and character, before any award of damages could follow, the court does not grant such declaration of right in default of defence or indeed on admission, without hearing evidence. See BELLO V. EWEKA (1981) 1 SC 101; MOTUNWASE V. SORUNGBE (1988) 4 NWLR (PT.92) AND OGUNJUMO V. ADEMOLU (1995) 4 NWLR (PT.389) 254 AT 269. In the final analysis, this main issue in the determination of this appeal is resolved against the appellant.
The second issue for determination is whether the sum of N50.000.00 damages assessed in favour of the appellant if the claim had succeeded was adequate. Learned counsel to the appellant had argued that the amount awarded was too small having regard to the service record of the appellant, absence of apology by the respondent, the extent of circumstances and the circumstances that led to the writing. Citing and relying on the case of EJABULOR V. OSHA (1990) 5 NWLR (PT.148) 1. Learned counsel urged this court to allow the appeal on this issue.
The respondent however relying also on the same case of Ejabulor v. Osha (supra) had retorted that the award of N50.000.00 made by the lower court was excessive having regard to the conduct of the appellant, the nature of the alleged libel and the extent of circulation of the alleged defamatory material.
The principle in assessing damages in a case of libel as in the present case is as stated or enunciated at paragraph 1358 PAGE 558 OF GATLEY ON LIBEL AND SLANDER. The learned Author made the point that the court or jury in assessing damages should take into consideration:-
“the conduct of the plaintiff, his position and standing, the nature of the libel, the mode and extent of publication, the absence or refusal of retraction or apology and the whole conduct of the defendant from the time when the libel was published down to the very moment or their verdict.”
In arriving at the N50.000.00 as damages if the appellant had succeeded in his claim, the trial court was correctly guided by the above quoted principle which was outlined by Akpata J.S.C. (of the blessed memory) in the case of EJABULOR V. OSHA (1990) 5 NWLR (PT.148) 1 AT 16, which was relied upon by both parties in this appeal. I am therefore of the view that having regard to the conduct of the appellant in inviting Squadron Leader Amego to supervise the police in carrying out their lawful duties of investigating the case involving the appellant’s son and prosecuting him for the minor traffic offence under the law, the nature of the alleged libel which was not shown to have been published even on the face of Exhibit 1 and the conduct of the respondent who did not even contest the case which could have generated other conducts which might have aggravated damages, the award of N50.000.00 by the lower court to the appellant in the circumstances was quite adequate.
On the whole the appeal fails as it totally lacks merits. It is accordingly hereby dismissed with costs which I assess at N5,000.00 for the respondent against the appellant.
Other Citations: (2000)LCN/0714(CA)
