Sanya Ayeni, Esq. V. Navy Capt. Abimbola Adesina (2007)

LawGlobal-Hub Lead Judgment Report

MSHELIA, J.C.A.

This is an appeal against the decision of the Lagos State High Court sitting in Ikeja and delivered by Kekere-Ekun, J. on 2nd May, 2003, in suit No. ID/954/97 wherein, the learned trial Judge found in favour of the plaintiff/respondent in respect of his claims against the defendant/appellant.

The plaintiff before the lower court filed a 29 paragraph statement of claim and claimed from the defendant the following reliefs:-

(a) N1,00.00 (sic) (One million Naira) being general aggregated and exemplary damages for libel.

(b) An order directing/compelling the defendant herein to retract in writing all his said defamatory statements about the plaintiff to the Nigeria Police.

(c) A perpetual injunction restraining the defendant from further defamatory publication against the plaintiff.

Parties exchanged pleadings. At the trial the plaintiff testified in support of his case but did not call any witness. While defendant gave evidence and called one witness. The brief summary of plaintiff’s case as pleaded and testified to is that on 10th September, 1996 he and his friend one Mr. Kunle Oshingbesan went to Mr. Oshingbesan’s land outside Beckley Estate. On their way back they met the defendant and his workmen working on a different plot of land belonging to the defendant. Plaintiff stated that he inquired from the defendant what he was doing on the land. The inquiry sparked off a quarrel between them. He denied beating defendant. As a result defendant wrote a letter in form of a petition to the Commissioner of Police, Lagos State in connection with the incident, and copied same to him. The said letter or petition was admitted in evidence as exhibit ‘P1’. Plaintiff claimed that exhibit ‘P1’ contained defamatory statements, hence the action for libel.

Defendant on the other hand testified that while on his land with his workmen working, the plaintiff in an unruly manner asked him his mission on the land which belong to him. When the plaintiff asked him as to his interest plaintiff became abusive and beat him up, threatening to kill him for his effrontery to him. He then wrote a petition to Commissioner of Police, Lagos State copy of which was served on the plaintiff. He maintained that the content of exhibit ‘P1’ was what transpired between him and plaintiff on the date of the incident. Defendant put up defence of justification and qualified privilege. Parties at the close of defence case addressed the court on all the issues raised. The learned trial Judge after reviewing the evidence and submissions of counsel held that exhibit ‘P1’ (Petition) is libelous of the plaintiff and that the defences put forward by the

defendant did not avail him of liability. The learned trial Judge in a considered judgment at page 110 of the record stated as follows:-

“In conclusion the plaintiffs claim succeeds. Judgment is hereby entered in favour of the plaintiff as follows:-

1. The plaintiff is hereby awarded the sum of N250,000.00 against the defendant being general damages for the libel published of the plaintiff by the defendant contained in a letter dated 10th August, 1996 addressed to the Commissioner of Police, Lagos State.
2. The defendant is hereby ordered to retract in writing the said defamatory statements made about the plaintiff to the Nigeria Police as contained in his letter dated 10th August, 1996.

The defendant shall retract the said statements not later than 7 days from today.

3. I hereby make an order of perpetual injunction restraining the defendant from making any further defamatory publications against the plaintiff.”

Being dissatisfied with the judgment, the defendant filed a notice of appeal dated 5th day of May, 2003 with 6 (six) grounds of appeal.

See pages 129 to 133 of the record of appeal. The defendant (hereinafter) referred to as appellant filed his brief of argument on 30th June, 2004. Plaintiff (hereinafter) referred to as respondent also filed respondents brief dated 4th April, 2005 and filed on 5th April, 2005.

When the appeal came up for hearing on 16th November, 2006, appellant appeared in person and argued his appeal. He adopted his brief of argument. Appellant cited additional authority. See Seismograph Service (Nig.) Ltd. v. Chief Keke Ogbenegweke Eyuafe (1976) 9 & 10 SC 135 and Nziwu v. Onuorah (2002) 4 NWLR (Pt. 756) 22 at 27 para. F-4.

Respondents counsel also adopted respondents brief of argument after he applied to regularize it by deeming same as filed and served. Learned counsel also cited additional case of Adike v. Obiareri (2002) 4 NWLR (Pt. 758) 537 at 568 on issue of admission.

The five issues formulated by the appellant from the six grounds of appeal with which the respondent agreed in toto are reproduced hereunder as follows:-

(i) Whether exhibit ‘P1’ (The petition complained of) is defamatory of the respondent bearing in mind the ingredients of the tort of libel? (Ground 1 of the grounds of appeal).

(ii) Based on the available evidence before the trial court, has there been legal proof of publication of exhibit ‘P1’ to either the addressee or any third party? (Ground II of the grounds of appeal).

(iii) Are the defences of justification and qualified privilege put up by the appellant not sufficient to avail him of any liability even if exhibit ‘P1’ ex-facie appears libelous of the respondent?

(iv) Whether the available evidence is generally in support of the decision of the lower court? (Ground v of the grounds of appeal).

(v) Is there any legal justification for the award of N250,000.00 as damages made in favour of the respondent in the circumstances of the case presented at the lower court? (Ground vi of the grounds of appeal).

In resolving the issues formulated, I will consider them serially as treated by appellant since respondent did not formulate different issues. The first issue for determination is whether exhibit ‘P1’ which is the publication complained of is defamatory of the respondent in law.

While arguing this issue, appellant in his brief referred to the case of Sketch Publishing Co. Ltd. and Anor v. Alhaji Azeez Ajagbemokeferi (1989) 1 NWLR (Pt. 100) 678 wherein the word defamation was defined as “a statement which, if published of and concerning a person is calculated to lower him in the estimation of right thinking men or cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him, disparaging or injurious to him in his office, profession, calling, trade or business”. Appellant contended that the above definition has qualification. The tort of defamation whether slander or libel consists in publication of false and derogatory words concerning another person without lawful justification. Appellant submitted that in determining if the contents of exhibit ‘P1’ is libelous of the respondent, the court ought to evaluate the evidence before it to see if the contents of exhibit ‘P1’ are false and defamatory of the respondent without lawful justification. In Adewusi v. The Sketch Publishing Co. Ltd. (1978) 10-112 CC HC] 58. It was held that “a statement in a newspaper does not give rise to a cause of action in libel against the publisher merely because it causes damage to the plaintiff. The statement itself must be false and it must be defamatory of the plaintiff.” If exhibit ‘P1’ is read as a whole, it will be clear that no case of libel has been made by the respondent he argued. All the appellant did as shown in exhibit ‘P1′ is a report to the Commissioner of Police, Lagos State who is the person entitled in law to look into complaints of any aggrieved person about conduct likely to cause a breach of peace. Appellant submitted further that respondents case will either fail or succeed based on the opinion and view the light thinking members of the public will form or hold concerning the attitude of the respondent to the appellant on the 10th September, 1996 when the respondent went to the appellants land to beat him up for no just cause. He submitted that the lower court did not take into consideration the event of 10th September, 1996, it is not all publications that tend to injure the reputation of a complainant that constitutes libel. Such publication must be false and without lawful justification. Appellant also contended that it is not every annoying statement that is defamatory. The words used may annoy the complainant but if, it is true it cannot justify an action in libel or slander. See The Sketch Publication Company Ltd. and Anor. v. Alhaji Azeez A. Ajagbemokerefi (supra). He said vulgar statement, abuse and insult is not actionable.

In response to the submission of appellant on issue No. 1 respondents’ counsel submitted in his brief that the words complained of in exhibit ‘P1’ are defamatory of the respondent. Learned counsel contended that the question of whether, or not a publication complained of is defamatory of a party is not a question or issue for either the plaintiff or the defendant to determine on his own or by his opinion. The position of the law is that whether or not the words complained of in a libel case are defamatory of the plaintiff is for the trial court to decide based on the evidence adduced in support of the complaint. See Omole v. Abubakar (2002) FWLR (Pt. 126) 904, 905 – 906; NEPA v. Inameti (2002) FWLR (Pt. 130) 1695, 170102; (2002) 11 NWLR (Pt. 778) 397.As to the definition of defamatory word/statement learned counsel also relied on the case of NEPA v. Inameti (supra) page 1716 paras. B-C; N. T.A. v. Babatope (1996) 4 NWLR (Pt. 440) 75 at 88 ratio 1and Sketch Publishing Co. Ltd. v. Ajagbemokerefi (supra).

On whether the words complained of in this case convey defamatory meaning, respondents counsel contended that the test here is objective. Whether under the circumstances a reasonable man to whom the publication was made would be likely to understand it in a libelous sense. The court would also construe the words according to the fair and natural meaning which would be given to those words by reasonable persons of ordinary intelligence. See N.T.A. v. Babatope (supra) at 79 and NEPA v. Inameti supra at 1902.

Learned counsel further contended that the manner or approach employed by the trial court in this case to arrive at an interpretation or understanding which a reasonable man of ordinary intelligence would ascribe to the words complained of in exhibit ‘P1’ is the best.

He urged us to uphold the lower court’s reasoning and conclusion on this issue which according to counsel appeared at pages 15, 16 and 17 of the decision of the lower court.

It was also his contention that the words complained of refer to the respondent as exhibit ‘P1’ contains the name “Navy Captain Abimbola” a name which respondent answers to. Appellant conceded that exhibit ‘P1’ refers to the respondent but his own contention was that it was true of him i.e. the respondent.

On whether the words complained of defamed the respondent learned counsel submitted that based on the natural meanings of the words complained of and the fact that they all refer to the respondent there is no doubt that those words defamed the respondent. Learned counsel contended that those words indeed if not retracted have effect of lowering the respondent in the estimation of the Commissioner of Police, Lagos State who is a Public Officer and also as well other right thinking members of public, members of Legal Profession, which the respondent belongs, right thinking members of the Nigerian Navy and members of his community i.e. Beckley Estate.

It is trite that Court of Appeal will not normally interfere or tamper with the evaluation of evidence or findings of fact and as such he urged the court that the evaluation of the lower court in this regard and its findings of fact as contained in pages 16, 17 and 18 of the decision should not be tampered with by this court since appellant has not shown any recognized exceptions that will justify/warrant an interference of this court. Learned counsel urged the court to resolve issue No.1 in favour of the respondent.

In resolving issue No.1 it is pertinent at this stage to examine exhibit ‘P1’ the publication complained of. The defamatory words are as contained in the petition (exhibit ‘P1’) portion of same reproduced in paragraph 17 of the statement of claim. Paragraph 17 read thus:-

“17. The plaintiff avers that amongst other, the defamatory contents of the said petition are as follows:-

‘From what other residents made me behalf (sic) he is a nuisance that if not called to order he will not stop his act of nuisance. He has constituted himself to nuisance to the civilians in the Estate and for him to have turned me to a punch bag shows his mental state.’

‘Being a retired military ought to reflect a lot of discipline in him, rather he is an embodiment of indiscipline. ‘

‘ … NAVY CAPTAIN ABIMBOLA dealt me a blow’

Before that he had said to my hearing and that of my workmen that he kills me.’

‘ … I want it on record that if anything happens to me, he should be held responsible.’

‘ … One wonders whether it is the practice for a retired officer to be beating his neighbour and be threatening their lives. ”

I think it would be of great assistance if the whole of exhibit ‘P1’ is also reproduced for ease of reference and emphasis. Exhibit ‘P1’ read thus:-

“SANYA AYENI & CO.

BARRISTERS, SOLICITORS &

LEGAL CONSULTANTS

Our Ref: SA/GC/131/96 Date: 12th Aug., 1996

The Commissioner of Police

Lagos State Police Command

Oduduwa, Ikeja

Lagos

Dear Sir,

THREAT TO MY LIFE BY ONE NAVY CAPTAIN ABIMBOLA (RTD) OF BECKLEY ESTATE WASISI OJOKORO

This protest becomes necessary in view of the recent happenings in the country. I am a Solicitor and Advocate of the above named address.

On Saturday the 10th August, 1996 I was at the site of my newly purchased property at Wasimi Ojokoro with my workmen when one Navy Captain Abimbola Rtd. a resident of Beckley Estate came to meet me in company of one A. A. Oshingbesan of Berger Paints.

On their arrival I exchanged greetings with Mr. Oshingbesan whom I know. To my surprise however, the retired Navy Captain (Abimbola) started making noise that I should get off my land. I then asked him his interest on the land which he could not state. It was Mr. Oshingbesan who told me that he came to see me based on one Ademosu family’s claim that they too have interest on the land. I explained to Mr. Oshingbesan that I purchased my land from the rightful owner whose title dated back to 25th Sept., 1911 while I was discussing with Mr. Oshingbesan who was polite to me, Navy Captain Abimbola dealt me a blow. Before that he had said to my hearing and that of my workmen that he will make sure he kills me.

From what other residents made me believe, he is such a nuisance that if not called to order he will not stop his act of nuisance. He has constituted himself to nuisance to all the civilians in the estate and for him to have turned me to a punch bag shows his mental state.

His threat to terminate my life should not be taken lightly by the police.

I am not calling on the police to adjudicate on land matter. He is not laying claim to my land, we do not share boundary neither do I have anything to do with him. Whilst I shall make recourse to the court for the battery committed on my person by him, I want it on record that if anything happens to me, he should be held responsible. Being a retired Military ought to reflect a lot of discipline in him, rather he is an embodiment of indiscipline. One wonders whether it is the practice for a retired officer to be beating his neighbours and be threatening their lives. It may interest you too to note that the Ademosu’s are well enlightened and know where to go if they feel their right is being infringed by anyone. If you do not know we are already in court with them in a number of cases. At the appropriate place and time we shall know if it is permissible for you to be harassing innocent people on their properties.

Be it noted that you shall be held responsible for any damage to my property on the land while as contained in my petition to the state Commissioner of Police your threat to terminate my life is not to be taken lightly. While others in your locality can condone your nuisance, you are warned to keep off my Land. The Ademosu’s have their solicitor who they have been using and are still using. Your entering my land is an act of trespass which you are to desist from forthwith.

Yours faithfully,

SGD

SANYA AYENI, ESQ.

PP. SANYA AYENI & CO.”

What is defamation? In the case of The Sketch Publishing Co. Ltd. and Anor. v. Alhaji Azeez A. Ajagbemokerefi cited supra by appellants’ counsel, the word defamation is defined as “a statement which if published of and concerning a person, is calculated to lower him in the estimation of right thinking men or cause him to be shunned or avoided or to expose him to hatred, contempt, or ridicule or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business.”

It is settled law that the question as to whether the words complained of are in their natural and ordinary meaning defamatory is a question of fact. In Lewis v. Daily Telegraph Ltd. (1964) A.C.

234-259 and 260 at page 258 Lord Reid spelt out the for determining the natural and ordinary meaning of words as follows:

“There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: It is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs … What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meanings of the words … But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning …. The test, according to authorities, is, whether under the circumstances in which the writing was published, reasonable men to whom the publication was made, would be likely to understand it in a libelous sense ….. What the ordinary man, not avid for scandal, would read into the words complained of must be a matter of impression.”

It is trite that in action for defamation it is the court that decides in the end whether the words complained of are defamatory. See The Sketch Publishing Co. Ltd. v. Ajagbemokeferi supra and African Newspaper v. Ciroma (1996) 1 NWLR (Pt. 423) 156 at 163.

In determining whether the words are defamatory or not the first step to be taken by the trial Judge is to consider the meaning the words would convey to the ordinary person. See Okolo v. Midwest Newspaper Cooperation and Ors. (1977) NSCC 11; (1977) 1 SC 33. Having ascertained that, the next step is to consider the circumstances in which the words were published and determine whether in those circumstances the reasonable person would be likely to understand them in a defamatory sense. See Okafor v. Ikeanyi (1979) Vol. 12 NSCC 43; (1979) 3-4 SC 99.

Having defined what defamation is and how it is ascertained, the next question is whether the natural and ordinary meaning of the words complained of set out supra in paragraph 17 of the statement of claim and the entire petition exhibit ‘P1’ convey defamatory meaning. I have earlier stated the guiding principle which is to the effect that:-

The ordinary and natural meaning of the words are to be seen from the eyes of a reasonable man of ordinary intelligence guided by general knowledge and not from the eyes of a person who is fettered by legal rules of construction or forced into an utterly unreasonable interpretation. See Jones v. Skelton (1963) 1WLR 1362 pages 1370 -1371. Adopted with approval by the Supreme Court in Maurice Dumbo and Ors. v. Stephen Idugboe (1983) 1 SCNLR 29 page 47 – 48.

Applying the principle to the words complained of in exhibit ‘P1’ the necessary inference a reasonable man would draw from the words complained of is what the learned trial Judge ended up with in the judgment at pages 99 – 102 of the record of appeal. In particular at page 102 the trial Judge had this to say:

” … would a reasonable person understand the words in a defamatory sense? I am of the view that the status of the plaintiff in the society having regard to the various positions he has held and the fact that he is a retired military officer and a legal practitioner are relevant factors in determining whether the words are defamatory of the plaintiff. It is well known that any person who has served in any of the military forces is regarded as an embodiment of discipline. The fact that the plaintiff was appointed head of security by the Landlords Association of Beckley Estate also point to the fact that he was respected within his community and considered to be a disciplined person. To describe such a person as an embodiment of indiscipline is certainly calculated to lower him in the esteem of right thinking persons in the community and expose him to hatred or contempt. I also agree with the plaintiff as pleaded in paragraphs 18 and 19 of the statement of claim and as stated by him during his testimony that the words in exhibit ‘P1’ to the effect that he uses his position as a retired military officer to beat up his neighbours and threaten their lives portrays him as someone, who terrorizes his neighbours and engages in disgraceful conduct. As observed earlier, I also hold that the reference to the plaintiff’s mental state suggests that he is not in full possession of his faculties. I therefore hold that the words complained of are defamatory of the plaintiff.”

As the authorities have shown, the test is not what a man avid of scandal or a jester, or an opponent of the person allegedly defamed would read into the words complained of nor is it how any of such persons would react as a result of his reading the words. It is whether reasonable readers of exhibit ‘P1’ under the circumstances of the case were likely to understand the publication in a libelous sense.

The approach and finding of the learned trial Judge that the words complained of in exhibit ‘P1’ are defamatory in their natural and ordinary meaning cannot be faulted. Referring to plaintiff as a

nuisance, embodiment of indiscipline and making expression that alleged behaviour of the plaintiff shows his mental state would clearly have the effect of lowering him in the estimation of right thinking persons or cause him to be shunned or avoided particularly having regard to the circumstances the words were uttered. There is an unchallenged evidence in the record that the words referred to the respondent. Appellant admitted writing exhibit ‘P1’ but only pleaded that the words contained therein are true. Paragraph 20 of the statement of defence is relevant. It is hereunder reproduced for ease of reference. Paragraph 20 read thus:

“20. The defendant avers that contrary to the averments in paragraphs 16, 17, 18, 19,20 and 21 of the statement of claim, the petition to the Commissioner of Police contained the true position of what the plaintiff did to the defendant.”

Accordingly, I uphold the finding of the learned trial Judge that the words complained of in exhibit ‘P1’ are defamatory in their natural and ordinary meaning and they refer to the respondent.

Consequently, issue No. 1 distilled from ground 1 is resolved in favour of the respondent. In other words appellants ground of appeal No.1 fails along with the issue No.1 distilled from it.

The second issue is whether based on the available evidence before the trial court, there has been legal proof of publication of exhibit ‘P1’ to either the addressee or any third party. Or in other words is there Legal Proof of Publication of exhibit ‘P1’. While arguing this issue, appellant contended that the law places burden on the person alleging defamation to prove positively that the words complained of has been circulated to a third party. Appellant submitted that there was no evidence that the Commissioner of Police, Lagos State received exhibit ‘P1’. The burden of proving publication lies on the respondent who was plaintiff at the lower court. He contended that respondent did not discharge the burden of proof of publication rather he testified that he received a copy of exhibit ‘P 1’ which was sent to him by the appellant. See pages 21 lines 20 – 25 of the record. Respondent stated that he was not invited by Commissioner of Police in respect of exhibit ‘P1’ and was never questioned in respect thereof. He referred to page 21 lines 32 – 36 of the record. It was further contended that there was no evidence relating to making known of the contents of exhibit ‘P1’ to addressee nor any third party. The admission by the appellant that he wrote exhibit ‘P1’ does not constitute publication in law. The onus is on the plaintiff/respondent to prove that appellant wrote exhibit ‘P1’ and that the addressee of exhibit ‘P1’ received same. There must be positive proof of publication. See Ajakaye v. Okandeji (1972) 1 SC 92 and Thievent v. Daily Times suit No. LD/1067/79 delivered on 5th October, 1984 and reported in Nigeria Law of Libel and the Press by Chief Gani Fawehinmi Chapter 6 Article 84.

Appellant further contended that mere receiving same does not constitute publication, there must be evidence that it was either read by the addressee or a third party. It was also his contention that there can be no presumption of implied proof of publication as erroneously held by the trial com1, the provision of S. 75, Evidence Act, Cap. 112, Laws of Federation, 1990 relied upon by the trial court does not provide for waiver of proof of publication required in libel or defamation cases. The law requires positive proof of publication.

What the appellant admitted is the writing of exhibit ‘P1’ as opposed to publication of exhibit ‘P1’ to the named addressee. He said there is distinction between writing a letter and publication of the contents of the letter to a third pal1y. Paragraph 29 of the statement of defence does not constitute an admission of publication of exhibit ‘P1’ as required by the law. The fact that he pleaded justification as a defence does not relieve the respondent the burden of proof of the three essential ingredients highlighted in African News Papers v. Ciroma (supra). What the respondent proved was delivery to him of the copy of the letter allegedly written and addressed to the Commissioner of Police, Lagos State and not the proof of delivery to the addressee or a third party. No person was called to give evidence of delivery of exhibit ‘P1’ to him and no evidence of a third party having read or seen exhibit ‘P1’ apart from the respondent.

He said contrary to the view held by the lower court, the plea of justification does not serve as admission of publication. Neither does plea of justification serve as a waiver of proof of publication legally required by the law. He urged the court on this failure to prove publication to set aside the judgment of the lower court.

Respondent’s counsel in his brief, in response contended that there was publication of exhibit ‘P1’ to a person other than himself, that is the Commissioner of Police, Lagos State. He submitted on page 9 of his brief that this issue was properly and extensively considered by the lower court in pages 13 (paragraph 3) 14 and 15 of the decision, and he entirely agreed with the reasonings, findings and conclusion of the lower court. He urged the court to accept and confirm the findings of the lower court. Learned counsel contended that appellant by paragraphs 15,20 and 29 of his statement of defence, (especially paragraph 29) admitted publishing/making known/delivered the said exhibit ‘P1’ to the addressee. Appellant’s contention in his pleadings and evidence was that though he published/sent exhibit ‘P1’ to the addressee, he believes the content/words complained therein were true and privileged. It was the contention of learned counsel that the lower court correctly held on page 14 of the decision (last paragraph) that the issue of publication of exhibit ‘P1’ was not in dispute through out the whole proceedings.

See page 9 of respondent’s brief. He further submitted that the oral evidence of publication was not rebutted or controverted by the appellant during the course of his own evidence. The conclusion of the court on whether there was publication of exhibit ‘P1’ was anchored on 2 strong grounds – namely admission by the appellant and the uncontroverted evidence of the respondent on the issue. It is true that whoever raises a defence/plea of justification or qualified privilege in libel case is understood to be saying “Yes I published the words complained of but those words complained of are true and as such I am not guilty of defamation”. That has been the reasoning of the court in various cases such as Obakpolor v. Oyefeso (1997) 6 NWLR (Pt.508) 256 at 272- 273 para H-D. He urged us to resolve this issue in his favour. There are three constituents of libel, namely:

(a) Publication

(b) Whether the words complained of were published by the defendant; and

(c) Whether the words referred to the plaintiff. See African Newspaper Ltd. v. Ciroma (1996) 1 NWLR (Pt. 423) 156 and Ugo v. Okafor (1996) 3 NWLR (Pt. 438) 542.The question now is whether there was publication of the alleged libel, in this case exhibit ‘P1’. The apex court held in Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285, 297-298 Per Obaseki, JSC that,

“By publication is meant the making known of the defamatory matter to some persons other than the person of whom it is written ….

It is the reduction of libelous matter to writing and its delivery to any person other than the person injuriously affected thereby that is publication. The name of the person to whom delivery of the libelous document was made must be pleaded”.

Belgore, JSC in his own contribution at page 299 para. H had this to say:-

“The cardinal principle of libel in law is that there must be publication of libelous matter to a third person other than the person libeled; this is because a person’s reputation is not based on the good opinion he has of himself but the estimation in which others hold him”.

Furthermore, in Ugo v. Okafor (1996) 3 NWLR (Pt. 438) 542 at 560. It was held that in order to succeed in an action for defamation, a plaintiff must prove that the libel or slander has been published, that is communicated to some other person or persons other than the plaintiff himself. See also Okpara v. Umeh (1997) 7 NWLR (Pt.511) 95 at 98 and NEPA v. Inameti supra.

It is trite that he who asserts must prove the assertion by credible admissible evidence. In libel case the burden is on the respondent to prove publication. I have carefully gone through the record of appeal which includes the pleadings, evidence adduced and the judgment of the trial court. Respondent in the course of trial before the lower court, testified but did not call any witness. The publication complained of i.e. exhibit ‘P1’ was addressed to the Commissioner of Police of Lagos State but respondent did not call him to confirm whether exhibit ‘P1’ was actually received and read by him or any other person. Respondent relied heavily on the issue of admission. Reference was made to section 75 of the Evidence Act and cases of Adike v. Obiareri (2002) 4 NWLR (Pt. 758) page 537 at 568 and Olugbode v. Sangodeyi (1996) 4 NWLR (Pt. 444) 500 at 516 paras. C-D. (Ratio 8) to support he position of the law that facts admitted need no further proof. This in effect means the calling of the Commissioner of Police as witness was unnecessary. The trial Judge appeared to have relied heavily on paragraph 25 of the statement of claim and paragraphs 15, 20 and 29 of the statement of defence in coming to the conclusion that publication was proved. The trial Judge at pages 77 – 78 of the record had this to say:-

“From the pleadings of the defendant reproduced supra above it is evident that the issue of publication of exhibit ‘P1’ is not in dispute. The defendant has clearly admitted the communication of exhibit ‘P1’ to someone other than the plaintiff. His averment in paragraph 29 further buttresses the fact that there was publication of exhibit ‘P 1’. In his evidence under cross-examination the defendant testified as to the efforts he made to follow up on exhibit ‘P1’. He did not at any time suggest that the petition was not received. Rather he implied that it was likely that the Commissioner of Police did not act on it because the plaintiff is a former Military Officer. I have considered the authorities cited by the defendant regarding proof of publication. I am of the view that section 75 of the Evidence Act, Cap. 112, LFN, 1990 is applicable in the present circumstances. I hold that as the defendant has admitted publication of exhibit ‘P1’ to someone other than the plaintiff that such requires no further proof.”

I am of the humble view that the learned trial Judge misconstrued the law relating to defamation by saying that admission is sufficient.

The general principle relating to admission in civil matters cannot be invoked to prove publication in libel case. There must be positive proof of publication. It is worthy to note the decision of the Supreme Court in Ajakaiye v. Amodu Okandeji (1972) 1 SC. 92 cited by appellant in his brief of argument. The apex court in its judgment said:

“We see no substance in this appeal. We think the learned trial Judge was entitled on the evidence before him to come to the conclusion that the plaintiff failed to prove publication of the libel complained of. The admission that the Daily Times was printed and published did not of itself establish publication. The appeal is accordingly dismissed with 37 guineas costs to the respondents.”

Respondent had also raised a point in his brief that appellant (DW1) under cross-examination admitted following up the petition as such it could be inferred that it was received by Commissioner of Police and that constitutes prima facie proof of publication. It is apt to B refer to the evidence of the appellant under cross-examination at page 43 lines 24 – 30 of the record. He said,

“I do not know what the Police did about my petition. I followed it up. I went to the Police several times. I do not know what must have transpired between the Police and the plaintiff. He is a retired Military Officer. I am not in a position to know whether my allegation about the plaintiff were confirmed by the Police”.

By this piece of evidence, it is evident that appellant was not sure whether the Commissioner of Police actually received exhibit ‘P1’ relied upon. To say otherwise would amount to speculation. It is not the duty of court to speculate. There is nothing from the pleadings or evidence of DW1 (appellant) to suggest the mode of delivery of exhibit ‘P1’ to the Commissioner of Police, Lagos State. Had it been there is evidence to the effect that exhibit ‘P1’ was posted to the Commissioner of Police then possibly there could be presumption of delivery of exhibit ‘P1’ (The petition) under section 149 Evidence Act though rebuttable.

Another point worthy of consideration is the contention of respondent’s counsel in his brief that it is not necessary in all cases to prove that the libelous matter was actually brought to the notice of a third party. If it is made a matter of reasonable inference that such was the fact, a prima facie case of publication will be established. He relied on the case of Ugo v. Okafor supra to buttress his submission. I have had the privilege of reading the case of Ugo v. Okafor supra. The case involved publication in a newspaper. It is worthy to note the observation of Tobi, JCA (as he then was) at page 561, paras. A – D of Ugo v. Okafor supra:-

” … In Awoniyi and Others v. The Registered Trustees of The Rusicrucian Order (AMORC) (1990) 6 NWLR (Pt. 154) 42, this court held as follows:

(1) The law is that a libel does not require publication to more than one person.

(2) It is not necessary in all cases to prove that the libelous matter was actually brought to the notice of some third party. If it is made a matter of reasonable inference that such was the fact, a prima facie case of publication will be established. This is particularly so when a book, magazine or newspaper containing a libel is sold by the defendant.

(3) A libel in any of such documents like a book, a magazine or a newspaper or a post card (posted) is therefore prima facie evidence of publication by the proprietor, editor, printer, and publisher and any person who sells, or distributes it.”

The libel complained of in the case at hand is a petition which is a private communication. I am of the view that the situation envisaged in Ugo v. Okafor supra cannot be extended to a letter or private communication. The argument of respondent’s counsel cannot be sustained.

I also wish to comment on another point raised by respondents counsel in his brief, as to whether or not the fact that the appellant raised a plea of justification and qualified privilege is not an indication or evidence that exhibit ‘P1’ was published or communicated to the Commissioner of Police. He referred to the case of Obakpolor v. Oyefeso supra and contended that the findings of the lower court on this issue was correct. That whoever raises a defence/plea of justification or qualified privilege in libel case is understood to be saying “Yes I published the words complained of but those words complained of are true and as such I am not guilty of defamation.” According to the respondent defences raised constitutes admission of publishing exhibit ‘P1’ to the Commissioner of Police, Lagos State. Agreed evidence on record clearly shows that appellant never at any time disputed the fact that he wrote exhibit ‘P1’ and that a copy was sent to Commissioner of Police, Lagos State and one to the respondent. But the material pmt of a cause of action in libel is not the writing of libelous matter complained of but the publication of the libel i.e. its delivery to any person other than the person injuriously affected. The learned trial Judge in my humble view wrongly came to the conclusion that the plea of justification and qualified privilege constitutes admission of publication of exhibit ‘P1’. The fact that appellant admitted writing exhibit ‘P1’ does not relieve respondent the burden of proof of publication. It is settled law that plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s case. See Igwe v. Alozieuwa (1990) 3 NWLR (Pt. 141) 735 at 747 and Nsirim v. Nsirim (2002) 2 SCNJ 46; (2002) 3 NWLR (Pt. 755) 697.

It is trite that who asserts or claims a relief must prove it by credible admissible evidence and judgment for and grant of such claims must be based on legal evidence of the highest probative value and weight. See A.-G., Oyo State v. Fairlakes Hotels (No.2) (1989) 5 NWLR (Pt. 121) 255. In Nsirim v. Nsirim supra, Obaseki,

JSC at page 297 paragraph G had this to say:-

“An action for libel must fail if publication of the defamatory matter is not proved. This 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 is not the writing, but the publication of libel. The act of publishing the libelous matter constitutes the cause of action.The omission by respondent to call the Commissioner of Police, Lagos State or any other person who might have read exhibit ‘P1’ to confirm receipt of same is therefore fatal to his case. By proving receipt of exhibit ‘P1’ by Commissioner of Police, Lagos State would not amount to respondent contributing to the spread or further publication of exhibit ‘P1’ in question as argued by counsel. Such evidence in my considered opinion would only confirm that the libelous document was received by a person other than respondent who was defamed. The fact that exhibit ‘P1’ was found to be defamatory of the respondent is not sufficient to satisfy the requirement of proof of publication as there can be no cause of action in libel in absence of proof of publication. I entirely agree with the submission of appellant on this issue.

It is trite that an appellate court will only interfere with the findings of fact of a trial court in the under-mentioned circumstances where:-

(f) the findings are perverse; or

(g) the findings are not supported by evidence; or

(h) the findings have not been arrived at as a result of a proper exercise of judicial discretion; or

(i) the trial court has not made a proper use of the opportunity of seeing and hearing the witnesses at the trial or

(j) the trial court had drawn wrong conclusion from accepted credible evidence or

(k) the trial court had taken an erroneous view of the evidence adduced before it or

(l) the findings were reached as a result of wrong application of some principles of substantive law or procedure: See Awara v. Alalibo (2002) 18 NWLR (Pt.799) 484 at 552 paras. E – Hand Ebba v. Ogodo (1984) 1 SCNLR 372.

In the instant case the learned trial Judge wrongly arrived at the conclusion that publication has been proved having regard to the earlier reasons stated in this judgment. Under the circumstances this court is entitled to disturb the findings of fact made by the trial Judge.

From the totality of the evidence adduced on record, I hold the view that respondent failed to discharge the burden of proof of publication, in absence of which there can be no cause of action in libel. Where a plaintiff has failed to discharge the burden which lies on him of proving his case, then the proper judgment will be for the defendant. In the instant case the appropriate order which lower court ought to have made was one of dismissal of plaintiff/respondent’s claim.

I therefore resolve issue No.2 in favour of the appellant. Ground 2 from which issue 2 is distilled also succeeds. Since issue No.2 succeeds it becomes unnecessary to resolve issues No.3, 4 and 5 formulated by appellant. The plea of defences of justification and qualified privilege and claim for damages are relevant only where publication is proved and libel established. Attempting to resolve these issues, having arrived at the conclusion that there is no cause of action will only amount to academic exercise. Issue 2 in my view has disposed off the entire appeal.

In the result, I hold that the appeal is meritorious and it succeeds.

It is allowed by me. Accordingly, the decision of the lower court is hereby set aside.

In its place, I enter order of dismissal of the plaintiff/respondent’s claim in toto. Parties to bear own costs.

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Other Citations: (2007)LCN/2226(CA)