Air Vice Marshal Mahmoud Yahaya (Rtd.) V. Major Hassan T. Munchika (Rtd.)(2000)

LawGlobal-Hub Lead Judgment Report

MAHMUD MOHAMMED, J.C.A.

 This is an appeal against the judgment of the High Court of Justice Kaduna State at Kaduna delivered by Abiriyi J. on 1/4/98 dismissing the suit of the appellant. The claim of the appellant who was the plaintiff against the respondent who was the defendant at the High Court as contained in the writ of summons is for:-

“Damages against the defendant in the sum or N10,000.000.00 (Ten Million Naira only) arising from a libel which the defendant falsely and maliciously wrote and published in a letter titled “PETITION FOR REDRESS AGAINST AVM YAHAYA MAHMOUD (RTD) AND SQN LDR AMEGO” addressed to the Commissioner of Police dated 31st December, 1996 and copied to several notable personalities in the country of and concerning the plaintiff in the following manner amongst others:-

‘…from all indications they had put a full stop to the case since they retrieved their car which was barely damaged impact’. Page 4 of the petition.

The AVM, who was not the driver of the vehicle has used his position as a retired senior military officer to see that his son does not face the law as required, and together with SQN LDR Amego have violated all procedures of law as laid down in a civil case of which this is one page 5 of the petition.”

The appellant as the plaintiff duly filed his statement of claim which was duly served on the defendant/respondent, who despite several adjournments granted to him by the trial court, failed to file and serve his statement of defence. The case was accordingly heard and determined by the trial court on the plaintiff/appellant’s statement of claim alone with the appellant as the only witness for the plaintiff. The defendant/respondent who did not file his statement of defence did not also call evidence nor even cross-examine the plaintiff/appellant after testifying in chief. All the same, the learned trial Judge in his judgment delivered on 1/4/98 after reviewing the evidence on record came to the conclusion that the plaintiff/appellant did not prove his case against the defendant/respondent and therefore dismissed the claim. Part of that judgment reads:-

“For the foregoing finding of this court that there was no publication and no defamatory meaning can be given to the words complained of. I am of the view that the case of the plaintiff should be dismissed.”

Aggrieved by that judgment, the plaintiff/appellant had appealed against it to this court upon his Notice of Appeal containing 6 grounds of appeal including the omnibus ground of appeal No.1 which was framed as follows:-

“1. The decision is unreasonable and cannot be supported having regard to the evidence before the court.”

At the hearing of the appeal on 19/1/2000, learned counsel to the respondent raised objection to this ground of appeal as being incompetent. Learned counsel to the appellant had no answer to the objection. I entirely agree with the learned counsel to the respondent that the above quoted ground: one of the word appellant’s grounds of appeal as presently couched plainly leaving out the word ‘weight’, the present appeal being a civil appeal, the ground is clearly incompetent having regard to the following decisions in the cases of ATUYEYE V. ASHAMU (1987) 1 NWLR (Pt.49) 267; IHEWUEZI V. EKEANYA (1989) 1 NWLR (Pt.96) 239: ROYAL NETHERLANDS V SAMA (1991) 2 (Pt.171) 64 and ABASI V. THE STATE (1992) 8 NWLR (Pt.260) 383. Accordingly, ground one of the appellant’s grounds of appeal is hereby struck out. In any case, it is observed that in fact, no issue for determination was specifically framed from that ground of appeal now struck out.

Briefs of argument were duly filed and served between the appellant and the respondent. In the appellant’s brief of argument the following two issues for determination were formulated from the remaining 5 grounds of appeal.

“1. Whether upon the state of pleadings and evidence, the necessary ingredients of libel were established to make a dismissal of the suit unjustifiable.

2. If libel was proved whether the alternative award by the learned trial Judge was adequate.”

In the brief of argument filed by the respondent however, four issues for determination were identified. The issues are:-

“1. Whether the 1st ground of appeal is valid having regard to the fact that this is a civil, not a criminal case,