Alahji Daudu Olaniyi V. Ajibade Elero (2006)
LawGlobal-Hub Lead Judgment Report
JOHN INYANG OKORO, J.C.A.
This is an appeal against the judgment of the Honourable Justice A. Adeniran of the Oyo State High Court delivered on 30th March, 1999 in a suit which the appellant was the plaintiff and the respondent the defendant. In it the plaintiff, now appellant claimed as follows:
“The plaintiff’s claim against the defendant is for the sum of ONE MILLION NAIRA (N1,000,000.00) being general damages for identifying the plaintiff as an armed robber that robbed his house sometimes in August 1996 and publishing to the Anti-robbery Police at Mokola, Ibadan, telling Akinfenwa Ifesowapo Landlord Association, Old Ife Road, Ibadan and some people at New Gbagi Ibadan that the plaintiff is an armed robber and that he was one of the robbers that robbed his house in August, 1996. Thereby the plaintiff has been defamed without lawful justification and thereby loses reputation, integrity and dignity”.
Pleadings were filed and exchanged and the plaintiff in paragraph 24 of the statement of claim claimed N1,000,000.00 being general damages for unlawful defamation of character as per his writ of summons. The defendant in his statement of defence denied the claim and stated that he never made any malicious and false report to the Police against the plaintiff and that the plaintiff’s claim is frivolous, vexatious, scandalous and an abuse of court process, and should be dismissed with substantial costs.
The facts of this case as stated by the plaintiff only, the defendant not having given evidence but resting his case on that of the plaintiff are as follows:-
The appellant and respondent are both landlords at Akinfenwa Area, Off Old Ife Road, Ibadan. The appellant used to buy grinding mill from the respondent but on one occasion the appellant had to recover the sum of N35,000 which he paid for a grinding mill to the displeasure of the respondent. On 31st August, 1996, the appellant was arrested by the Police and was detained at the Anti-robbery Police Station at Mokola, Ibadan for 12 days. Appellant’s vehicle was detained for 22 days. It later turned out, according to the appellant that he was detained upon an allegation made by the respondent that the appellant was the armed robber that robbed his house. That when the Akinfenwa Ifesowapo Landlord Association called a meeting while the appellant was still in the Police cell, the respondent allegedly refused to heed the advice of the Association to let him of the hook. He rather maintained that he was the armed robber that robbed his house. Also, that the respondent told some people at the new Gbagi Old Ife Road that the appellant was an armed robber. On proper investigation by the police, the appellant concluded, the actual robbers were apprehended and the appellant was subsequently released from detention. That the allegations were defamatory and the appellant has lost his personal reputation, prestige and had become ridiculed and lowered before the people.
As I have already stated, the respondent did not give evidence but rested his case on that of the appellant.
The learned trial Judge after taking the evidence as stated above and upon being addressed by both learned counsel for the parties, found the claim of the plaintiff incompetent and dismissed it.
The plaintiff, dissatisfied with the dismissal of his action, has appealed to this court. The notice of appeal dated the 6th day of April, 1999 has five grounds of appeal without their particulars where furnished, are as follows:-
“1. The learned trial Judge erred in law in holding in his judgment that the actual words complained of in the case were not stated by the plaintiff.
- The learned trial Judge erred in law by failing to make an award of general damages in the alternative in favour of the plaintiff in case the court of appeal over ruled his decision of dismissal of the plaintiffs case.
- The judgment is against the weight of evidence.
- The learned trial Judge erred in law in not considering that the actions of the defendant as endorsed in the writ of summons are defamatory to warrant the award of general damages in favour of the plaintiff.
- The learned trial judge erred in law in not making specific findings in his judgment having regards to the evidence before the court”.
The relief sought by the appellant is “to set aside the judgment of Ibadan High Court dated 30th March, 1999 and allow the plaintiff’s claim”.
In, the appellant’s brief of argument three issues were formulated for determination as follows:-
“(1) Whether the defendant’s action in identifying the plaintiff as an armed robber and reporting the same to the Anti-Robbery Police Mokola, Ibadan which led to the subsequent arrest of the plaintiff by the Anti-Robbery Police, Mokola, lbadan and subsequent detention of him in the police cell was defamatory or not.
(2) Was the learned trial Judge right in holding in his judgment that the “words complained of’ were not pleaded in the statement of claim.
(3) Whether the learned trial Judge was justified in not evaluating the plaintiffs evidence and making specific findings of fact before dismissing the plaintiff’s action in its entirety”.
It is proper to also set down the issues crystallized by the respondent for determination by this court. These are:-
“(1) Whether the appellant can raise fresh point on appeal without seeking and obtaining leave of the Court of Appeal.
(2) Whether the learned trial Judge, having found that issues were not joined in the pleadings, was required to make findings offact on the evidence led”.
In order to fully appreciate the issues raised by both parties for determination of this appeal vis-a-vis the facts of the case and decision of the learned trial Judge, it is necessary and proper to bring to the fore the meaning of defamation which is the area of the law which this appeal relates.
The tort of defamation has to do with injury to the reputation of a person resulting from words written or spoken by others against him. A defamatory statement has the following effects:-
(i) To lower the plaintiff in the estimation of right-thinking members of the society generally, or
(ii) to expose him to hatred, contempt or ridicule; or
(iii) to cause other persons to shun or avoid him; or
(iv) to discredit him in his office, trade or profession; or
(v) to injure his financial credit.
(see Gatley on Libel and Slander (7th Edition) Chapter 2.
Defamation has two arms:-
(1) Libel and
(2) Slander.
Libel is defamation in a permanent form mostly written or printed words in a book, letter, notice, newspaper etc, whereas slander is usually expressed through speech. It is made viva voce.
Again Libel is always actionable per se that is, without the need to prove special or actual damage whereas slander is not actionable per se, except in certain cases, such as:-
(i) Imputation of crime
(ii) Imputation of certain diseases such as sexually transmitted diseases
(iii) Imputation of unchastely or adultery especially of a woman
(iv) Imputation affecting professional business reputation.
Where any of the above is present slander is actionable per se and damages are presumed. See Egbe v. Adefarasin (1987) 1 NWLR (Pt.47)1; (1987) 1 SC 1 at p. 20.
Whether the action is libel or slander as this appeal appear to cover both, having regards to the facts of this case, a plaintiff must of necessity plead in verbatim in his statement of claim the exact words uttered or written by the defendant and in the language rendered. This is important in order to give the defendant notice of the real cause of action he is coming to meet arid to give him opportunity to react to it. See Chief S.O.N Okafor v. D.O Ikeanyi & ors (1979) 3-4 S.C 99, at P.103. That is the position and has not changed.
Having said that let me now consider the issues raised and argued by learned counsel for the parties.
Arguing the first issue which is on page 2 of the appellants’ brief, the learned counsel for the appellant submitted that “tagging the plaintiff/appellant as an armed robber had ridiculed him and he had been lowered in the estimation of right thinking Nigerians”. That was all the argument the learned counsel made in respect of this issue.
On the 2nd issue, appellant’s counsel submitted that the learned trial Judge was misconceived in law to have held that the actual words had not been stated in the statement of claim when in fact the actual words were spelt out in paragraphs 7 and 11 of the said statement of claim. Moreso, that a defamatory statement is not necessary because the mere detention of the appellant at anti-robbery Police Station as an armed robber is itself defamatory in that it speaks for itself. She cited the cases of Youssoupoff v. Metro-Goldwyn Mayer Pictures (1934) 50 TLR Page 581. Dalumo v. The Sketch Publishing Coy Ltd (1972) 1 ALL NLR page 130. She concluded on that issue that a man may defame another by his acts since actions as well as words may be defamatory. (underlining mine)
On the last issue which she formulated for determination, she submitted that the learned trial Judge failed to evaluate the evidence before dismissing the claim. That there is a difference between the summary of evidence and evaluation of same. She cited these cases:-
(1) Imah v. Okogbe (1993) 9 NWLR (Pt. 316) Page 159 at 177.
(2) Woluchem v. Gudi (1981) 5 SC page 291 at 306
(3) Mogaji v. Odofin (1978) 4 SC page 91 at 93 and 94.
She urged this court to evaluate the evidence since the trial court failed to do so. She referred to the case of Akibu v. Opaleye (1974), 11 SC pages 189 at 204.
Finally, she submitted that the learned trial Judge while dismissing the plaintiffs case ought to have made an award of damages in the alternative in case the Court of Appeal should find that his approach and judgment were wrong and on this she cited the case of Bello v. The Diocesan Synod of Lagos and 24 ors (1973) 3 SC page 103-148.
The respondent’s counsel in his brief of argument had formulated two issues already set out above. His submission as regards the first issue is that the appellant’s issue No 1 and arguments on issue No.2 are incompetent and should be disregarded on the ground that they do not arise from issues dealt with by the trial court and that they raise fresh points on appeal without first seeking and obtaining the leave of the Court of Appeal. That issues 1 and 2 of the appellant’s brief refer to actions of the defendant when the case of the plaintiff at the trial court as per paragraph 7 of the statement of claim was that the respondent had reported him to the Police in writing and that in paragraph 11 of the said statement of claim, the plaintiff contended that the defendant said he was a robber. On this he cited the following case:-
(1) Ezekude v. Odogwu (2002) 13 NWLR (Pt.784) 366; (2002) FWLR part 121 1927 at 1931
(2) Peter v. Okoye (2002) 3 NWLR (Pt.755) 529; (2002) FWLR part 110, 1864 at 1880 .
(3) Bamgboye v. University of Ilori (1999) 10 NWLR (Pt.6222) 290; (2001) FWLR part 32, 12 at 19.
On issue No.2 in the respondent’s brief which is appellant’s issue NO.3, the learned respondent’s counsel submitted that since the appellant failed to plead the exact words constituting the alleged libel, there was no issue for the respondent to meet or join in respect of which evidence could be adduced and that where, as in this case evidence was led, such evidence goes to no issue and should be discountenanced as was rightly done by the learned trial Judge. He cited the cases of Adeleke v. Iyanda (2001) 13 NWLR (Pt.729)1; (2001) FWLR part 60, 1580 at 1592, and Olaifa v. Aina (1993) 4 NWLR part 286 page 192 at 200.
In the appellant’s reply brief, learned counsel for the appellant submitted that all matters relating to the actions of the respondent highlighted in his brief are not fresh issues at all as alleged by the respondent but that they were the basis or the foundations of the actions put before the court below for determination. Moreso, that the respondent’s issue No 1 does not arise from any ground of appeal as she never raised any fresh issue in this appeal. She finally urged the court to allow this appeal.
It seems to me that issue No.1 and arguments relating to issue No 2 formulated by the appellant have introduced new matters not canvassed at the lower court. The appellant asserts that the words which defamed him were pleaded in paragraphs 7 and 11 of the statement of claim and at the same tithe argues on page 3 of his brief paragraph 2.03 that it was the acts of the respondent that constituted the defamation. I think at this stage it is necessary to reproduce paragraphs 7 and 11 of the statement of claim and the argument in paragraph 2.03 of appellant’s brief for a clearer perception of the issues.
Paragraphs 7 and 11 of statement of claim state as follows:-
“(7) The Police thereafter informed the plaintiff that one Mr. Ajibade had reported to them in writing that his house was robbed sometimes ago and that the plaintiff was amongst the robbers that robbed the said house. Then the police took statement from the plaintiff in connection with the said robbery of which he was alleged.
(11) The defendant reacted sharply to the chairman’s appeal for the release of the plaintiff from the police cell at Anti-Robbery Police station and he said at the meeting that he would not yield to that appeal in that he knew that the plaintiff was a robber and that he was one of the robbers that robbed his house. The meeting came to an end abruptly”.
Paragraph 2.03 of the appellant’s brief on page 3 which is argument for issue No. 2 states:-
“I humbly submit that a defamatory statement is not necessarily made in words either written or spoken. A man may defame another by his acts no less by his words”. (emphasis mine)
I have carefully read the entire statement of claim particularly paragraphs 7 and 11. Nowhere in the paragraphs are stated the actual words written or spoken by the respondent against the appellant. Paragraph seven alleges that the respondent made a report to the police in writing. In paragraph 11, the appellant alleges that the respondent made a verbal statement that he is an armed robber in the presence of the chairman and members of Akinfenwa Ifesowapo Landlords Association. Although the appellant stated in paragraph 21 of his statement of claim that he would rely on the respondent’s petition to the police, none was tendered before the lower court nor were the contents made available to the court. This court and even the Supreme Court have stated in several authorities that it is of necessity in an action for defamation either in libel or slander, that the actual words complained of and not merely their substance must be set out verbatim in the statement of claim for it is on the perusal of the actual words complained of as pleaded that the court will determine whether or not the words convey defamatory meaning.
See Akin Olaifa v. Gabriel Adedeji Aina (1993) 4 NWLR part 286 page 192 at 200 paragraph H, Chief S.O.N Okafor v. D.O. Ikeanyi (supra), Sketch Publishing Company Ltd v. Ajagbemokeferi (1989) 1 NWLR (part 100) 678 at 695.
In the instant case, no such words were pleaded. I hold that the learned trial Judge was right in holding that failure to plead the actual words used was fatal to the appellant’s case. It appears that learned counsel for the appellant realized this but instead of throwing in the towel and conceding to the legal position, she decided to raise a fresh issue which was not canvassed in the court below and that without the leave of this court.
What was before the court below was that the respondent made a written report to the police and a verbal statement to the Landlords Association alleging that he is an armed robber. Learned counsel in her first issue for determination and part of argument for issue No 2 brought in a new matter, i.e. acts of the respondent. She had argued that “a man may defame another by his acts no less by his words”.
Learned counsel for the respondent had argued that there was nowhere in the statement of claim that the plaintiff contended that it was the acts or actions of the defendant that constituted defamation to the plaintiff. He had urged the court to regard issue No. 1 and argument for issue No.2 as incompetent and should be disregarded.
As already stated “acts” or “actions” of the respondent complained about are issues which are completely new as they were not pleaded in the statement of claim nor were they canvassed in the court below. To introduce them in this court, leave ought to have been first sought and obtained. In H.H Erejuwa II, the Olu of Ward and others v. Kperegbeyi and ors (1994) 4 NWLR (part 339) 416, the Supreme Court said:-
“It is a sweeping statement for learned counsel for the appellants to say that an issue of law not raised in the trial court can be raised in an appellate court without leave. Decisions of this court are in abundance that such an issue, whether of law or facts can only be raised after the leave of the appellate court has been sought and obtained”. (Per Wali, JSC at page 442).
I hold that issue No. 1 of the appellant’s briefing of argument contained on page 2 of the appellant’s brief and part of argument for issue N.2 particularly paragraphs 2.02 and 2.03 on pages 3 and 4 of the appellant’s brief are incompetent having introduced new issues without the leave of this court. In the circumstance, issue No.1 of the appellant’s brief and the argument on issue No.2 as highlighted above are hereby discountenanced and disregarded.
See Ezekude v. Odogwu (supra), Peter v. Okoye (supra) and Bamgboye v. University of Ilorin (supra).
Iam now left with issue No 3 of appellant’s brief and issue No.2 of respondent’s brief. In it, the learned counsel for the appellant submitted that the learned trial Judge failed to evaluate the evidence led before him and that this failure led him to reach a wrong conclusion. It was the contention of the counsel for the respondent that since the alleged defamatory words were not pleaded; the evidence led by the appellant was of no legal significance.
It is a well settled principle of law that evidence which is not founded on any fact pleaded goes to no issue. What ever evidence is led at the trial to support a fact not pleaded lacks a foundation to rest upon and as such cannot escape an imminent collapse. In the instant case, the appellant having failed to plead the exact words alleged to be a libellous, there was nothing to lead evidence on, and where as in this case evidence was led; the trial Judge was bound to disregard such evidence as he did. The evidence lacked a launching pad and was worthless.
See Bassil v. Fajebe (2001) FWLR (part 51) 1914 at 1927; (2001) 11 NWLR (Pt.725) 592; Adeleke v. Iyanda (2001) FWLR (part 60) 1580 at 12592; (2001) 13 NWLR (Pt.729) 1.
It is trite that both the plaintiff and defendant are bound by their pleadings. Where the plaintiff fails to plead relevant facts that would present an opportunity for the defendant to join issues with him, it is his own failing and it is fatal to his case. The trial Judge saw, and properly too, that there was no cause of action and having led evidence which was hanging, he was right to disregard it as one cannot put something on nothing. It will collapse.
See Macfoy v. United Africa Company Ltd. (1961) 3 All E.R page 1169 at 1172.
I am still unable to comprehend the submission of appellant’s Counsel on page 6 of her brief of argument. She submitted inter-alia:-
“I submit that the learned trial Judge while dismissing the plaintiffs action ought to have made an award of damages in the alternative in case the court of appeal should find that his approach and judgment were wrong”
This is novel and very misleading. How could a trial Judge after dismissing a claim, turn round to award damages in the alternative in case an appeal succeeds? This argument in issue No.3 of appellant’s brief, to say the least, lacks substance and merit. It is unrelated and I have no hesitation in discountenancing such unprofessional argument and submission.
Finally, let me say here that this appeal lacks merit as the appellant failed woefully to make out his case at the lower court. The learned trial Judge was perfectly right in dismissing the appellant’s claim against the respondent. In the circumstance, this appeal fails.
It is accordingly dismissed with N4,000.00 costs to the Respondent.
Other Citations: (2006)LCN/2087(CA)
