Tony Anozia v. The A.G. Lagos State & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

UWANI MUSA ABBA AJI, JSC (Delivering the leading judgment)

The appellant as claimant instituted an action against the defendant, Ndubusi Ikem Mbanugo, as successor to Chief O.C Mbanugo (deceased), donor of a power of attorney in 1990 in suit No. ID/197/90.

At the pendency of the suit, the Honourable Judge assigned to hear the suit retired from service and the next one was transferred to another division.

Subsequently, it was re-assigned to another Judge for hearing. In the meantime, the appellant did not open his case before the advent of the High Court of Lagos (Civil Procedure) Rules, 2004.

By the new rules, the appellant was supposed to frontload by filing necessary processes in the said suit he earlier filed.

On 19/1/2005, the appellant commenced an action against the respondents seeking for damages for loss or destruction of his case file in suit No. ID/197/90.

Consequently, he maliciously and defamatorily published in the statement of claim and vide a letter to the Administrative Judge the gross negligence of the respondents.

In response, the respondents counter claimed, which caused the appellant to raise a preliminary objection on lack of locus standi, non-closure of cause of action and that the counter claim was not proper before the court.

The preliminary objection was heard and struck out by the trial court. The appellant appealed and lost at the lower court, hence this appeal, wherein he seeks for determination:

1. Whether the words contained in a question in a letter to the respondents’ alter ego and a sentence of lamentation therein, not been positive statements can be said to refer to the respondents to make them have locus standi.
2. Whether the 1st, 3rd and 4th respondents being functionaries/offices of the 2nd respondent can have locus standi along with the body they serve.
3. Whether a letter written by a counsel/ litigant to the respondents representative, the Administrative Judge whose duty is to assign case files to other Judges, enquiring about the appellant’s missing or hidden case file in the middle of litigation, is not covered as privileged communication robbing on the cause of action.
4. Whether a plea in a counter claim in an action for libel which does not disclose publication to a 3rd party can be said to disclose a cause of action.
5. Whether the non-plea of innuendo in the circumstances where words or the sentence are not positive reference to the respondents, does not impugn the cause of action.
6. Whether a counter claim which does not comply with the rules of court as to frontloading of documents, claimants and witnesses’ depositions on oath can be said to be properly before the court.

The 1st, 2nd, 3rd and 4th respondents separately filed their briefs but chorused their issues for determination thus:

1. Whether the respondents have locus standi to institute the counter claim incorporated in their statement of defence?
2. Whether the respondents have reasonable cause of action against the appellant?
3. Whether the counter claim brought by the respondents is proper before the court?

The issues for determination can be suitably compressed into two thus:

1. Whether by the respondents’ statement of defence and counter claim, there was reasonable cause of action against the appellant to give locus standi to the respondents?
2. Whether there was a proper counter claim before the trial court?

Issue one:

Whether by the respondents’ statement of defence and counter claim, there was reasonable cause of action against the appellant to give locus standi to the respondents?

The appellant’s submission is that the alleged libel is a lamentation of the appellant into the missing or hidden file, which cannot give rise to locus standi in libel. The ingredients of libel enunciated in Iloabachie v. Philips (2004) 14 NWLR (Pt.686) 43 cannot be found in a statement of claim or defence. He submitted that none of the functionaries/ offices of the Attorney General, the Chief Judge and Chief Registrar can institute an action for libel for itself or jointly with the established body. He cited in support UBA Ltd. v. Oredein (1992) 6 NWLR (Pt.247) 35. He added that a letter by a lawyer to the Administrative Judge is a privileged communication that bars cause of action. He relied on Salaudeen v. Mamman (2000) 14 NWLR (Pt.686) 63.