Alhaji Ahmadu Abubakar Daura V. Alhaji Abdulkadir Danhauwa (2009)

LawGlobal-Hub Lead Judgment Report

JOHN INYANG OKORO, J.C.A.

The action which gave birth to this appeal was instituted by the Respondent at the High Court of Justice, Katsina State. The Respondent took out a writ of summons dated 9th day of May, 2005 and filed a statement of claim on the same date. His claim before the trial court was for damages for defamation arising from an application to file criminal complaint bordering on misappropriation and cheating by the Appellant against him before Senior Magistrate Court V Katsina which was written on behalf of the Appellant by his Counsel. The suit before the Senior Magistrate was however struck out. The Respondent’s claims against the Appellant at the Court below were:-

1. Public apology from the Defendant (now Appellant) in a Newspaper circulating in Katsina State and beyond.
2. Ten million naira damages for defamation of character
3. Cost of filing the action.

At the trial the Respondent called three witnesses and tendered seven exhibits: The Appellant called just one witness for his defence as applications for adjournment to enable him call more witnesses were rejected by the Court. On 27th December, 2006, the trial court delivered its judgment and entered judgment for the Respondent as follows:-

“1. The defendant should tender an unreserved apology to the plaintiff in a Newspaper circulating within Katsina State and beyond.

2. The defendant should pay the sum of N50,000.00 as exemplary damages to the plaintiff.
3. The sum of N2,410.00 being the cost of filing this suit.”

Dissatisfied with the stance of the learned trial judge, the Appellant filed Notice of Appeal on 8th January, 2006 containing four grounds of appeal. In the Appellant’s brief dated 31st March, 2007, four issues have been distilled for the determination of this appeal as follows:-

“1. Whether having regard to the evidence adduced before the trial Court, the Appellant actually defamed the character of the Respondent (Ground 1).

2. Whether the trial Court was right when it awarded the sum of N50,000.00 as exemplary damages to the plaintiff (now ground two).
3. Whether the trial Court was right when it refused an adjournment of the case and closed down the Appellant’s defence (Ground three).
4. Whether the trial Court was right when it refused an application for an adjournment to enable Counsel prepare and address the Court (Ground four).

The learned Counsel for the Respondent formulated three issues thus:-

“1. Whether from admissible evidence before the Court, the lower Court was right in finding for the Respondent for defamation of character.

2. If the answer to (1) above is in the affirmative, whether the lower Court was right in awarding damages for defamation of character.
3. Whether the lower Court was right in exercising its discretion against the Appellant on 13th October, 2006 and 20th December, 2006 over applications for adjournment.”

When this appeal came up for hearing on 26th March, 2009, only the Appellant was represented by Counsel. The Respondent’s Counsel was absent but since both parties had filed and exchanged their briefs, the appeal was deemed as duly argued vide Order 17 Rule 9(4) of the Court of Appeal Rules, 2007.

The Respondent had filed Notice of Preliminary Objection dated 24th April, 2007 on the 25th April, 2007. His arguments in respect of the Objection are contained on pages 1 – 2 of the said brief. But it appears he had abandoned it as the notice was not moved by his Counsel. I need to emphasize that filing a process is different from arguing it in Court. Where notice of preliminary objection is filed, Counsel has a duty to move it to enable the Court rule on it one way or the other. Where a notice of preliminary objection is filed but not moved in Court, it is as good as not having been filed. See Oforkie Vs. Maduike (2003) 5 N.W.L.R. (Pt. 812) 165, UPS Ltd Vs. Ufot (2006) 2 N.W.L.R. (Pt. 963) 1.

Although a notice of objection may be given and argued in the brief, it does not dispense with the need for the Respondent to formally move the Court at the hearing of the appeal for the relief sought. Notice of preliminary objection whether filed separately or incorporated in the brief is akin to an expression of intent by the Respondent. Therefore, the Respondent must ask for leave to move the objection before the oral hearing of the appeal commences, otherwise it will be deemed to have been waived and therefore, abandoned. In the instant appeal, although the Respondent filed notice of preliminary objection and argued same in his brief, he did not move the Court as to that notice of objection. I am of the view that it was incumbent on the Respondent to have moved his preliminary objection before the hearing of the appeal proper particularly so when the Appellant in his reply brief responded to and attacked the preliminary objection with all vehemence. Not having moved his preliminary objection, the respondent must be taken to have abandoned it and it is accordingly struck out. See Nsirim Vs. Nsirim (1990) 3 N.W.L.R. (Pt. 138) 285, Ariori Vs. Elemo (1983) 1 S.C.N.L.R. 13 and Ajibade Vs. Pedro (1992) 5 N.W.L.R. (Pt. 241) 257.

Although the Appellant has formulated four issues for the determination of this appeal, there are basically three issues only as identified by the Learned Counsel for the Respondent in his brief. The 4th issue of the appellant’s brief is indeed a repetition of his issue No.3. Accordingly this appeal shall be determined based on the first three issues in the appellant’s brief which are the same as those couched by the Respondent.

In the brief prepared by Ahmed M. Danbaba Esq on behalf of the Appellant, it is submitted on the 1st issue that the trial Court erred in law when it failed to properly consider and evaluate the evidence and exhibits before it. That the evidence adduced by the Respondent did not prove the essential ingredients of defamation. Also that how and where the words complained of were uttered by the Appellant were wanting in the evidence of the Respondent before the Court. Learned Counsel submits finally on this issue that Exhibit G, which was the basis of the suit at the trial Court could not be interpreted by any means to ground action for defamation. That Exhibit G is a letter written by Counsel to the Appellant in the course of his duties to his client and as such it cannot be defamation since it was written on a privileged occasion relying on the case of Mamman Vs. Salaudeen (2005) 24 N.S.C.Q.R. 360.

It was however the contention of the Learned Counsel for the Respondent that the Respondent’s claim for defamation before the lower Court is hinged on Exhibit G, a direct complaint against the Respondent and that Exhibit G was admitted in evidence by the Court below without objection by Appellant’s Counsel. That the document speaks for itself and accused the Respondent not only of cheating and misappropriation but also of deceit. On principles governing the tort of defamation, Learned Counsel cited the case of Edem Vs. Orpheo Nigeria Ltd (2003) 13 N.W.L.R. (Pt. 838) 537

As to whether Exhibit G constitutes a privileged communication, he submitted that the issue was not part of Appellant’s case at the lower Court and that it does not arise from any ground of appeal and should be discountenced.

The tort of defamation is a statement made by a person against another calculated to bring a plaintiff into hatred, ridicule, contempt, disrepute and odium. It is a statement which tends to lower a person in the estimation of right-thinking members of the society and which causes him to be shunned and avoided or which is calculated to injure him, his office, profession or trade. See Bryne Vs. Deane (1937) 2 K.B.818.

A defamatory statement may be libel or slander. It is libel if it is published in a permanent form i.e. in writing, print, photograph, carving, statute or cartoon. See Monson Vs. Tussands Ltd (1994) 1 Q.B. 671, DPP Vs. Chike Obi (1961) 1 All N.L.R. 186. Slander on the other hand is defamatory statement which is published in a transient form i.e. by words spoken or gestures. Libel is always actionable without the need to prove actual damage i.e. actionable per se, whereas in slander, except in certain cases, it is only actionable on proof of particular damage i.e. it is not actionable per se.

In the instant case and in any other case of defamation, the plaintiff must prove three things and these are:-

(a) that the words complained of were defamatory

(b) that the words referred to him

(c) that the words were published to at least one person other than the plaintiff.

Both the Appellant and the Respondent agree that the Respondent’s claim for defamation is hinged on Exhibit G, a direct criminal complaint against the Respondent which was written by Counsel to the Appellant to the Registrar, Senior Magistrate Court V, Katsina. The said letter being so important to this case and very short, I shall reproduce it here as follows:-

“APPLICATION TO FILE DIRECT CRIMINAL COMPLAIN (SIC) AGAINST ALHAJI ABDULKADIR DAN HAUWA YAMEL”

We act as Counsel to Alhaji. Amadu Abubakar Daura hereinafter called “our client” on whose behalf we write to you.

Our client informed us that sometimes in 2001, he was approached by Alhaji Abdulkadir Dan Hauwa Yamel to enter into partnership agreement and he submitted a business name Tabshe General Enterprises to be used as a business name for the partnership.

That our client was deceived into entering into the said agreement by Alhaji Abdulkadir Dan Hauwa Yamel. Consequent upon the agreement they jointly bought a plot of land and developed it so that they would use it as their office.

Our client also contributed money and they bought a tipper vehicle valued as at then N1,000,000.00, Sunny Saloon car valued N317,601.00, Block making machine valued at N100,000.00 and watering machine valued at N25,000.00. They also contributed the sum of N1,409,657.00 as a working capital.

Our client further informed us that Alhaji Abdulkadir Dan Hauwa Yamel deceived him by pretending that all the proceeds of the partnership would be lodged in a bank account to be managed by the two of them.

However since the commencement of the partnership agreement in 2001, he refused to give account or give anything to our client and has now converted everything to his own use despite all attempts to make him do so.

We suggest that he be tried under sections 309 and 322 of the Penal Code.”

That letter is dated 11th day of May, 2005 and signed by Ahmed M. Danbaba Esq, Counsel to Alhaji Amadu Abubakar Daura.

The evidence of the plaintiff (now Respondent) as Pw1 starts from page 41 of the record and particularly at page 43 which relates to the words used which the Respondent says are defamatory are as follows:-

“Pw1 – I was not happy about the use of the word cheating because there was nothing like that because it was not true. I am still doing my business. This allegation has affected my business greatly. The matter was heard (sic) by the KTTV Television those who heard it came and told me. They said one Alhaji Ahmadu Abubakar Daura has sued one Alhaji Abdulkadir Dan – Hauwa before Upper Shari’ a Court Katsina on a case of cheating and criminal breach of Trust.”

Invariably, the Respondent’s grouse against the appellant was the use of the word “cheating”. But a careful perusal of Exhibit G shows that no such word was used. At least the letter is there for all to see. However, if it was used during the television broadcast, there is no evidence that it was the Appellant who made the broadcast or that he sponsored it. It is not the place of the court to speculate on the issue. Unfortunately, the Court below did not consider all this.

There is the need to point out here that Exhibit G which is alleged to contain the defamatory words (though none exists) is a letter written by a solicitor in the course of his duties to his client. The law is very clear on this. Such a letter cannot be defamatory since it is written on a privileged occasion. In Boxsus Vs. Goblet (1891) 4 All E.R. 1178 at 1180, KOPES, L.J. stated that:

“For the proposals of the present case, I am prepared to lay down this rule that, if a communication made by a solicitor to a third party is reasonably necessary and usual in the discharge of his duty to his client, and in the interest of his client, the occasion is privileged.”

See also Mamman Vs. Salaudeen (2005) 24 N.S.C.Q.L.R. 360 at 386 -per Onnoghen, JSC.

I think it will be inappropriate to say that Exhibit G constituted defamation against the Respondent taking into consideration the facts of this case. Both the Appellant and the Respondent were business partners and when the relationship went sour, the Appellant made several frantic efforts to get the Respondent to the negotiation table. They went to the High Court, Upper Sharia Court, and the Magistrates’ Court. They also went to the Police Station all to resolve this matter. On page 68 of the Record of Appeal, the Dw1 states thus:-

“When the police investigated they discovered that the plaintiff has cheated the defendant. Then the matter went back to Court. A Court order was served on the Sharia Court from High Court 4 presided over by Justice Saulawa the case continued in Court 4. On the allegation of reformative (sic), I will not say the defendant has deformed (sic) the plaintiff because he was looking for his entitlements.”

Private Duty or made on a subject matter in which the defendant has a legitimate interest as in this case are statements made on a privileged occasion. So also are statements made by way of reports of judicial proceedings. So even if the statement was made on the KTTV as a report of the proceedings of the Court, this is made in a privileged occasion. See Generally GATLY ON LIBEL AND SLANDER 9th Edition (1998) paragraph 14.4.

See also Atoyebi Vs. Odudu (1990) 6 N.W.L.R. (Pt. 157) 384 at 399.

In the instant case, there is nothing defamatory in Exhibit G which warrants the holding that judgment be entered for the Respondent. The letter is a complaint to the Court in respect of a partnership agreement which according to the appellant has been breached by the Respondent. The Appellant was looking for a way of getting his share of the partnership and nothing more. The decision of the Lower Court, apart from the summary of evidence and address of Counsel for the plaintiff, is a one paragraph judgment thus:-

“I hold that the plaintiff has proved his case against the defendant. I however wish to say that on the issue of damages the learned Counsel has failed to prove by way of evidence the manner in which the estimation of the right thinking members of the public has affected the plaintiff. It is agreed that there is publication of the defamatory words which as rightly pointed out are libelous. However to rely on the case of Edem Vs. Ophero (Supra) for this Court to determine the extent of the effect of the damage is fatal to the plaintiffs case. This Court therefore cannot award the sum of N10,000, 000.00 as prayed by the plaintiff. It is in view of the above that I hold that the plaintiff’s case succeeds in part and I order as follows:-

1. The defendant should tender an unreserved apology to the plaintiff in a newspaper circulating in Katsina State and beyond.
2. The defendant should pay the sum of N50,000.00 as exemplary damages to the plaintiff.
3. The sum of N2,410.00 being the cost of filing this suit.”

With due respect to the learned trial judge, it seems to me that he could not see his way through in this matter. In one breadth he held that the plaintiff “has failed to prove by way of evidence the manner in which the estimation of right thinking members of the public has affected the plaintiff’ and that “this Court cannot therefore award the sum of N10,000,000.00 as prayed by the plaintiff’ and in another breadth he holds that the defendant should pay the sum of N50,000.00 to the plaintiff as exemplary damages. This in my opinion is at variance with the evidence adduced at the trial. I find it difficult to pitch my tent with the learned trial judge that the plaintiff proved a case of defamation against the defendant. There was absolutely no evidence at all to warrant judgment being entered for the plaintiff having regard to the evidence adduced in that court, for, whereas the Respondent (then plaintiff) says that he is alleged to have cheated the Appellant in Exhibit G, no such word exists in exhibit G. It is on this note that I agree that this issue be resolved in favour of the appellant.

The second issue is whether the Court was right when it awarded the sum of N50,000.00 as Exemplary damages to the plaintiff. The learned counsel for the Appellant submitted that it was not proper for the lower Court to have awarded N50,000.00 to the plaintiff as exemplary damage as the plaintiff. The learned counsel for the Appellant submitted that it was not proper for the lower Court to have awarded N50,000.00 to the plaintiff as exemplary damage as the plaintiff did not claim it nor was evidence led to prove same. It was however the view of Learned Counsel for the Respondent that since the Respondent had claimed damages, the fact that the word “exemplary” was used does not make any difference. Once defamation is proved, damages is presumed, he opined citing the case of David West Vs. Oduwole (2003) 12 N.W.L.R. (Pt. 835) 682.

Let me quickly point out here that exemplary damages are usually awarded whenever the defendant’s conduct is sufficiently outrageous to merit punishment, as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like. See Odogu Vs. Attorney General of the Federation & 6 Ors (1996) 7 S.C.N.J. 132 at 139 – 14, Eliechin (Nig) Ltd & Ors Vs. Mbadiwe (1986) 1 N.W.L.R. 47.

In Odogu’s case (Supra) at page 140, the Apex Court stated emphatically per Ogundare, JSC that:-

“Exemplary damages must be claimed there was no evidence to warrant the award of same. The learned trial judge was therefore in grave error in awarding exemplary damages in the circumstance. This issue is also resolved in favour of the Appellant.

The last issue has to do with the exercise of discretion on issue of adjournment by the learned trial judge. It is the submission of the Learned Counsel for the appellant that the trial Court erred when it refused an application for adjournment but the Learned Counsel for the Respondent contends that an appellate Court will only interfere with the exercise of discretion by a trial Court if only it is satisfied that the discretion was exercised arbitrarily or illegally or without due regard to the circumstances of the particular case citing the case of United Spinners Nigeria. Ltd Vs. Chartered Bank Ltd (2001) 14 N.W.L.R. (Pt. 732) 195.

On this issue, a scrupulous perusal of the record of appeal seems to thrust the following germane facts into the front burner:-

The defendant (now appellant) was to open his defence on 21st June, 2006 but he could not do so until 25th October, 2006 when DW1 testified. The matter was adjourned to 13th.

The defendant (now appellant) was to open his defence on 21st June, 2006 but he could not do so until 25th October, 2006 when DW1 testified. The matter was adjourned to 13th November, 2006 for continuation of defence. On that date, the defence could not produce witnesses and the matter was further adjourned to 13th December, 2006. The matter was furthermore adjourned to 20th December, 2006. Yet the Learned Counsel gave another excuse that he recorded the 27th December, 2006 in his diary instead of 20th December 2006. He then asked for another adjournment to 27th December 2006. At that stage, the patience of the Court was overstretched and exhausted and the learned trial judge refused to grant further adjournment and ordered Counsel to address the Court. This exercise of discretion by the learned trial judge is being challenged by the appellant in this court.

The law is now well settled that a discretion properly exercised by a Court will not be lightly interfered with by an appellate Court even when the appellate Court is of the opinion that it might have exercised the discretion differently. This Court will only interfere where the trial Court or Lower Court exercised a discretion upon a wrong principle. Mamman Vs. Salaudeen (Supra) at 379 – 380 per Onnoghen, JSC. Saraki Vs. Kotoye (1990) 4 N.W.L.R. (Pt. 143) 144, Ngwu Vs. Onuigbo (1999) 13 N.W.L.R. (Pt. 636) 512, Oyekanmi Vs. NEPA (2000) 15 N.W.L.R. (Pt. 690) 414.

In the circumstance of this case and having regard to the facts thereof, I have no reason to fault the learned trial judge who in my opinion properly exercised his discretion in refusing to grant further adjournments when it appeared to him that the defendant was not serious in defending the suit. There must be an end to litigation. Counsel who appears in Court should not stretch the patience of presiding judges to the limit. Adjournments should not be used as a tool to delay proceedings in Court. It should be granted only when it is necessary to do so and in the interest of justice. It should not be exploited to frustrate the other party and court’s discretion in this regard must be exercised judiciously and judicially. This last issue is, as clearly shows, resolved against the appellant. On the whole, I hold the view that the learned trial judge was wrong in holding that a case of defamation was made out against the appellant when there was no evidence to so hold. As it is, this appeal has merit and is hereby allowed. The judgment of the lower Court is accordingly set aside.

The appellant is entitled to costs and is assessed at N30, 000.00.

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Other Citations: (2009)LCN/3506(CA)