The Hon. Mr. Justice Kalu Anyah V. African Newspapers Of Nigeria Ltd.(1992)

LawGlobal-Hub Lead Judgment Report

OLATAWURA, J.S.C. 

The issue that calls for determination in this appeal is on whom lies the onus of proof as a result of the pleadings. The appellant by his endorsed writ of summons sued the respondent in the High Court of Lagos State for defamation claiming the sum of “N1 million as damages for words falsely and maliciously printed out and published by the defendants concerning the plaintiff and of him in the way of his office as Chief Judge of Borno State in the “Nigerian Tribune” issue of Wednesday 15th August 1984 on page 2 and which words carried the caption “PURGE IN THE JUDICIARY”.

The Statement of Claim was filed along with the Writ of Summons. The statement of Defence was filed and the defence was based on justification.

The plaintiff under Order 26 rule 6(3) of the Lagos High Court (Civil Procedure) Rules applied to the High Court to give directions for trial on the grounds stated therein, to wit:

“I. On the pleadings, the onus lies on the plaintiff to establish only publication, damages and other formal matters:

II. the onus of establishing justification lies on the Defendant and the Plaintiff cannot anticipate the evidence that will be led and counter it in anticipation;

III. the plaintiff must elect to give evidence in rebuttal all at one go either before or after evidence has been led by the Defendant on its plea of justification;

IV. In the circumstances it is in the interest of justice and in accordance with the usual practice in defamation cases to allow the Plaintiff to reserve his evidence in rebuttal till after the evidence of the Defendant in proof of justification where the plaintiff so indicates and where no injustice will be done to the Defendant.”

After counsel on both sides had addressed the learned trial Chief Judge, he refused the application. The plaintiff’s appeal to the Court of Appeal was dismissed by a majority decision of two to one. The plaintiff has further appealed to this Court. In view of the only question or issue raised for determination in this appeal, I deem it necessary for a proper understanding of this issue to set out the grounds of appeal. These grounds read as follows:

“(i) The Court of Appeal erred in law in failing to observe that the provisions of Order 32 rule 11-16 in no way inhibit the inherent and discretionary powers of the court in a libel case to grant the prayers contained in the plaintiff’s motion before the High Court dated 12/2/86.

(ii) The Court of Appeal erred in law in holding that – “By refusing the application the appellant has not been able to show that any injustice has been done to him whatsoever.”

Particulars of Error

It is unconstitutional and against all principles of fair hearing to insist that a person accused of grave misconduct which amounts to crime should first prove his innocence before his accuser is called upon to prove his charges.

(iii) The Court of Appeal misdirected itself in law in holding as follows;

“I may add in passing that I have not succeeded in tracing any provision for a departure from the rules of the High Court of Lagos Civil Procedure Rules 1972 which enables the High Court to depart from laid down rules of court. It is also my view that in view of the express provision of the High Court of Lagos Civil Procedure Rules, 1972, the case of Pedro v. Orafidiya relied upon by the appellant will be of no assistance here”.

Particulars of Error

(a) The rule of practice on which the plaintiff based the application contained in his Motion on Notice dated 12/2/86 is in no way inconsistent with the provisions of Order 32 rules 11-16 of the High Court of Lagos Civil Procedure Rules. Accordingly the application of the said rule of practice in no way involves any departure from the aforementioned High Court Rules.

(b) Even if(which is not conceded) there is any inconsistency between the aforesaid rule of practice and the High Court Rules, the latter should have given way in so far as its enforcement in the circumstances of this case would amount to a contravention of the plaintiff’s fundamental right to a fair hearing.

(c) The Lagos High Court Rules cited by the Court of Appeal are exactly the same as Order 26 rules 10-16 of the rules which were in force in the High Court of Western Nigeria at the time of the decision of the Western State Court of Appeal in Pedro v. Orafidiya and so it was wrong for the Court of Appeal to have purported to distinguish that case on the basis of “the express provisions of the High Court of Lagos Civil Procedure Rules.”

(iv) The Court of Appeal erred in law in failing to observe that there was absolutely no material before the High Court to justify the view that (a) injustice would not be done to the plaintiff unless the order sought for was made and (b) this is not a proper occasion to rule in favour of the plaintiff’s application dated 12/12/86.”

` The argument and submissions before us are almost the same submissions made before the lower court except that Chief Williams S.A.N, the learned counsel for the Appellant laid more emphasis on the case of Pedro v. Orafidiya (1975) NMLR 336. However, I will, if only for the purpose of emphasis, summarise the oral submissions of learned counsel for both parties made in addition to the briefs filed by them.

In his oral submissions Chief Williams referred to the defence which is justification and that the imputations include improper conduct and certain criminal offences, he then drew the attention of the court to the case of Pedro v. Orafidiya (1975) 1 NMLR 336 and urged the court to follow the procedure laid down in the case otherwise the plaintiff would have to prove his innocence that he is not a rogue. He further submitted that the plaintiff should be given the presumption of innocence, he referred to Gatley on Libel and Slander 8th Edition paragraph 1335: He referred to the majority decision of the Court of Appeal to the extent that the rule does not justify the application of PEDRO’S (supra). On the issue of fair hearing Chief Williams submitted the plaintiff should not be allowed to prove his innocence first. Convenience and discretion referred to by Galley on Libel and Slander should be taken together. He finally urged that the court should accept the procedure in Pedro’s case as the general rule.

In his own oral submission, Mr. Adesanya the learned counsel for the respondent submitted that the interest of justice must be paramount. If the plea is that of a general accusation that the plaintiff is a rogue Mr. Adesanya agreed that the plaintiff could not anticipate the defence on the contrary learned counsel contended the pleadings are clear. He referred to the words complained of in the statement of claim and the statement of defence. Learned counsel referred to the brief filed in the lower court. He then submitted that it was after the learned trial Chief Judge had gone through the pleadings that he exercised his discretion in favour of the respondent and that the appellant has not stated how the ruling has affected his case. Further, learned counsel pointed out that the appellant has said nothing about the way the discretion has been exercised but merely relied on Pedro’s case. He submitted that the decision of the erstwhile Western State Court of Appeal has only a persuasive effect on Lagos High Court and that decision did not take away the right of exercise of discretion by the Judge. He urged that the appeal be dismissed.

Chief Williams in reply pointed out that Mr. Adesanya has failed to draw the necessary distinction between allegation and evidence and that it is evidence in support of the allegation that appellant wants to know about.

“The learned Chief Judge in refusing the application said: “In exercising discretion as to what direction to give in this matter, I have taken note of the purpose of pleadings which principally is to settle on its face the issues in dispute between the parties. Once it is done the correct practice in my considered view is for the procedure at the hearing to take the normal and generally accepted course………………………….

I am of the view that in this case with the defences pleaded. it would be a wrong exercise of discretion to alter the usual procedure at the hearing”,

I will refer to what the learned Chief Judge referred to as “the usual procedure” later.

The only question for determination formulated by the appellant is:

“Whether the provisions of the rules of Court in force in Lagos State make it impossible for the Lagos High Court to follow the decision of the Western Slate Court of Appeal in Pedro v. Orafidiya (1975) 1 NMLR 336”.

Chief Williams in his brief has pointed out that the only Nigerian legal authority on the matter now before us is Pedro’s case supra. I tried unsuccessfully to find any other Nigerian authority but my efforts yielded no fruitful result. Before considering the ratio decidendi in Pedro’s case; it will be helpful to give a resume of the facts. One Mr. Pedro wrote a letter to the Chairman, Local Government Service Board of Western State of Nigeria complaining of corrupt conduct against Mr. Orafidiya who was then one of the Presidents of the Customary Courts Grade in that State. A copy of this letter was sent to the Chief Justice, Western State of Nigeria. Mr. Pedro’s allegation was that Mr. Orafidiya received a piece of farmland as bribe from one Mr. John Atepo in respect of a matter pending before him. Mr. Pedro set up a defence of justification. He was unable to prove this and judgment was entered in favour of the plaintiff- Mr. Orafidiya. It was in the course of the trial that the learned trial Judge Adewale Thompson J. enunciated the principle to be followed, to wit:

“(i) the plaintiff would first tender the document complained of and then give formal evidence of the libel

(ii) the defendant would then lead evidence in support of his plea of justification; and

(iii) the plaintiff could then give evidence in rebuttal”

This procedure was approved by the then Western State Court of Appeal as being in accordance with the law. It is this procedure that the Appellant is urging this court to accept and should be followed by the Lagos State High Court.

It is necessary to go a little bit into our past Constitutional set up. Prior to the 1979 Constitution of the Federal Republic of Nigeria, the Constitution in force was the 1963 Constitution. Western Nigeria had its Constitution Under s.52 of the 1963 Constitution of Western Nigeria a Court of Appeal was established for the Region. The Western State Court of Appeal was set up in 1967. The commencement date was 1st April 1967 – See Western Nigeria Legal Notice 19 of 1967.

Appeals from the various courts in that State had to go through the hierarchy of Courts in the Western State before reaching the Western State Court of Appeal. From the Western State Court of Appeal, appeals went to the Federal Supreme Court. No doubt the decisions of the Western State Court of Appeal were binding on the subordinate Courts in the Western State. Until such a decision was approved by the Federal Supreme Court, it was only of persuasive authority in the courts or other States. Section 3 of Decree No. 27 – Constitution (Miscellaneous Provisions (No.2) restricted appeals from the High Court of Western State directly to the Supreme Court unless appeals filed before 1st June 1967. As from 1st June 1967 Appeals from the High Court of the State went to the Western State Court of Appeal. Where a decision of the Western State Court of Appeal was in support of rules in any State that State might follow it, however, if the decision of the Western State Court of Appeal is in conflict with the Rules of procedure in any State, that State is not bound to follow the decision.

In this case on appeal, although the application for direction was made under Order 26 rule 6(3) of the High Court of Lagos (Civil Procedure) Rules 1972, hereinafter referred Was the Lagos High Court Rules, the rules governing trials are as clearly set out in Order 32 of the Lagos High Court Rules.

The relevant rules and described as “the usual procedure” by the learned Chief Judge are 11, 12. 13, 14, 15, 16 and 17. These read as follows:

“11. The order of proceeding at the trial of a cause where pleadings have been filed shall be as prescribed in the following Rules.

12. The party on whom the burden of proof is thrown by the nature of the material issues or questions between the parties, according as the Court may determine, shall begin. He shall state his case. He shall then produce his evidence and examine his witnesses.
13. When the party beginning has concluded his evidence, he shall ask the other parry if he intends to call evidence (in which term is included evidence taken by affidavit or deposition, or under commission, and documentary evidence not already read or taken as read): and if answered in the negative he shall be entitled to sum up the evidence already given, and comment thereon; but if answered in the affirmative he shall wait for his general reply.
14. When the party beginning has concluded his case, the other party shall be at liberty to state his case and to call evidence, and to sum up and comment thereon.
15. If no evidence is called or read by the latter party, the party beginning shall have no right to reply, unless he has been prevented from summing up his case by the statement of the other party of his intention In call evidence.
16. The case on both sides shall then be considered closed.
17. If the party opposed to the party beginning calls or reads evidence, the party beginning shall be at liberty to reply generally on the whole case, or he may, by leave of the Court, call fresh evidence in reply to the evidence given on the other side, on points material to the determination of the issues, or any of them, but not on collateral matters.”

The Appellant’s brief has referred to the discretion of the Court with regard to direction for trial, Rules of Court, Constitutional guarantee more so section 33(1) of the 1979 Constitution on fair hearing and provision of section 184 of the Evidence Act.

In this case on appeal, pleadings had been settled. I will repeat what I said in the case of Ohmiami Brick & Stone (Nig.) Ltd v. African Continental Bank Ltd. (1992) 3 NWLR (Pt.229) 260 where the purpose of pleading is clearly stated on pages 293H to 294A thus:

“It must be appreciated that there cannot be a better notice of the case a party intends to make than his pleading. It is a mere notice and can never be substituted for the evidence required in proof of the facts pleaded, subject however to an admission made by the other party. Unless a party through skilful cross-examination discredits the case of the other party, he is still bound to lead evidence in support of his own pleading.”

In the majority decision of the lower court Kutigi J.C.A. (as he then was) said:

”The ruling of the learned Chief Judge in this case was clearly a result of the exercise by him of his judicial discretion. And unless that discretion is shown to have been wrongly exercised or shown to have been exercised upon wrong principles or that the exercise was tainted by some illegality or substantial irregularity. This court will on principle not interfere with the exercise of that discretion.”

I agree.

In support of his application Chief Williams relied on Gatley on Libel and Slander 8th Edition paragraph 1335. The same principle can be found on pages 509-510 paragraphs 1245 of 7th Edition. This paragraph reads:

“1245. Practice based on general convenience. Where there is a plea of justification on the record, it is within the discretion of the court to allow the plaintiff either to give all the evidence he intends to offer in rebuttal at the outset, or to postpone giving such evidence and leave it to the defendant to make out his plea, and then give evidence of any mailers which are properly admissible to rebut the plea. There is no hard and fast rule, and the practice is based on general convenience. If the Judge does consider that the plaintiff should be allowed to reserve his answer to the plea of justification, the defendant’s counsel cannot offset that by asking questions on that issue in order to draw the plaintiff’s witness. In any event, the plaintiff is not entitled to call some evidence in rebuttal in the first instance, and to reserve the remainder for reply to the defendant’s case.

The same rule, semble, applies where fair comment is pleaded. “Under a plea of justification, the onus is on the defendant to show that the alleged libel is true; in fair comment the onus is on him to show that the facts commented on are acknowledged to exist or are true .If the defendant brings evidence to prove the facts commented upon to be true or acknowledged to exist, the plaintiff should be entitled to produce evidence that they are neither acknowledged nor true. But he cannot divide his proof, bringing forward part of his evidence in the first instance and more in reply.”

It is evident from the above quoted passage that a lot depends on the discretion and convenience of the Court. Besides there is provision under Order 32 rule 17 of the Lagos High Court Rules quoted above for the plaintiff to call evidence in rebuttal. As Mr. Adesanya submitted in the respondent’s brief the appeal is in the main against the exercise of the Judge’s discretion. The principle stated above by Gatley on Libel and Slander gives two guide-lines to a Judge: to use his discretion and to consider the convenience of the court. In my view any Judge in such a situation, more so in a case to be tried by him, is the sole arbiter of the convenience which a departure from the rules of court will cause. Unless a discretion is wrongly exercised, the appellate court should not interfere with the exercise of that discretion. No one discretion can be a precedent. Kay LJ, it in succinctly in Jenkins v. Bushby (1891) 1 CH. 484/495 where the learned Lord Justice said:

“Of course, in a question of discretion, authorities are not of much value. No two cases are exactly alike, and even if they were, the court cannot be bound by a previous decision, to exercise its discretion in a particular way; because that would be in effect putting an end to the discretion.” It admits of no argument that the onus of proof is on the person who asserts. This is a case of defamation in which the respondent’s defence is based on justification. As in the case of Pedro (supra) if the respondent fails to prove the allegations, of course that will be the end of that defence. Let me quote some of the words under the caption – PURGE IN THE JUDICIARY – complained of: ……………………………………”

Allusion to two specific cases will suffice for now. Borno State Chief Judge Kalu Anya should be removed from the Bench because of allegations of impropriety, corruption and abuse of office leveled against him. The allegations include his purchase, from a litigant in his court, of a Mercedes Benz 230 car; false declaration of the year of manufacture of the car to evade appropriate customs duties; inability to account for the funds he took to purchase judicial robes in Hong Kong; alteration of the record of proceedings in his court and issuance of a dud cheque for the purchase of a Peugeot 504 pick-up van and sitting as Judge in his own cause. These are weighty allegations on the strength of which Justice Anya, ought to quit in honour.”

The respondent in its statement of Defence averred in paragraphs 4, 5, 6 and 7 thus:

“4. As to so much of the words complained of as alleged that the Plaintiff purchased a Mercedes Benz car from a litigant in his Court, they are true in substance and in fact.

5. If and in so far as the words complained of mean that the Plaintiff should not continue to hold office as a Judge or Chief Judge of Borno State, the said words are fair comments on a matter of pubic interest namely; the comments of Mr. Justice K.M. Kolo in His Lordship’s ruling in Suit No. M/65/83 and the findings of fact by Mr. Justice W.O. Kuyatsemi in his judgment in Suit Nos. 11/113/82 and 82 all at the High Court of Justice Borno State Holden at Maiduguri on the conduct of the Plaintiff, a public officer in the exalted position of a Chief Judge of a State in the Federal Republic of Nigeria.
6. As to using public funds without duly accounting for same and altering record of proceedings in his court, they are fair and accurate report of the judgments in Suit Nos.M/113 & M/114/82 delivered at the Maiduguri High Court in Borno State and are privileged.
7. Further and in the alternative to paragraph 6 above, they are true in fact and in substance.”

I cannot see how the plaintiff can complain of fair hearing where he has not been shut out from putting his case across or where under the rules of court, no party is allowed to go outside his pleadings so that the plaintiff can complain of surprise. Apart from the fact that the Lagos High Court is not bound by the case of Pedro (supra), the court cannot brush aside its own rules which allow the Judge untrammelled discretion whether to allow the plaintiff to give the entire evidence in rebuttal before he closes his case or to postpone giving the evidence so as to rebut the plea of justification. The facts pleaded in justification as stated by the respondent in its pleading must be shown to be true before it can be accepted as proof. There is nothing unconstitutional in this plea. Since there is an allegation of crime the proof required is proof beyond reasonable doubt – See s. 137 of the Evidence Act; See Nwobodo v. Onoh (1984) 1 S.C.1.,(984) 1 SCNLR 1 To my mind the injustice the Court of Appeal referred to and quoted by the appellant as being an error in law is that no injustice can be shown by the appellant since the “facts and figure” of the allegations are contained in the pleading.

Where a Judge has no discretion in a matter or under a rule, the strict provision of the rules must be complied with. A discretion will cease to be one if it can only be exercised in one particular form. The misapprehension of what the lower Court said and which is ground 1 of the grounds of appeal gives the impression, albeit untrue, that the appellant is being asked to prove his innocence.

The plea of justification in libel cases if sustained is a complete defence.

Chief Williams contention that Mr. Adesanya has failed to draw the necessary distinction between allegation and evidence overlooks the plain rule of pleadings that facts and NOT evidence are pleaded. Once a pleader has not tried to blend fiction with facts, it is the law that before those facts are taken as established evidence must be led in support. To establish the facts pleaded evidence relevant to the facts must be led in support of those facts. The pleader will then certainly run into trouble with the issue of fiction.

Finally, I will conclude that the case of Pedro v. Orafidiya (supra) has not taken away the discretion the Judge has under the Lagos High Court Rules and neither is it an authority that where an allegation of crime has been made in a plea of Justification to an action of libel that the defendant must first of all lead evidence in proof of that allegation before the plaintiff proves his case. I will therefore dismiss the appeal with costs assessed at N1,000.00 in favour of the respondent.

M. L. UWAIS, J.S.C.: I have had the privilege of reading in draft the judgment read by my learned brother Olatawura, J.S.C. I entirely agree that the appeal has no merit and that it should be dismissed for the reasons given in the said judgment.

Accordingly, the appeal is hereby dismissed with N1,000.00 costs to the respondent.

S. M. A. BELGORE, J.S.C.: The procedure for trial of civil matters in the Lagos High Court is governed by the Civil Procedure Rules of that Court. There is no ambiguity as to who should start to prove. The onus in the instant case rests on the person who asserts that he has been defamed to prove. The mere plea of justification or fair comment on an alleged defamatory publication imputing criminality cannot shift the burden. I therefore agree with the judgment of Olatawura, J.S.C. whose reasoning and conclusions. I adopt as mine, in dismissing this appeal with N1.000.00 costs to the respondent.

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SC.75/1988