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Alhaji A.r. Sule & Ors V. Mr. J. Orisajimi (2019)

LAWGLOBAL HUB Lead Judgment Report

SIDI DAUDA BAGE, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Ilorin Division delivered on 5th January, 2006 in respect of an appeal filed by the Appellant against the judgment of the trial Court dated 2nd April, 2004. The Court of Appeal dismissed the appeal and confirmed the judgment of the trial Court. Still being dissatisfied, the Appellant filed the instant appeal vide a Notice of Appeal dated 22nd February, 2006.

SUMMARY OF FACTS:

The Respondent commenced this suit by a Writ of Summons dated 30th December 1999 claiming One Million Naira (N1,000,000.00) damages for alleged libel committed by publication in a document dated 18th August, 1997. The case of the Respondent was that he was employed by the 3rd Appellant in 1992 as a Principal Instructor Grade II. His appointment was later terminated by the Appellants through Exhibit P5. However, in paragraph 4 of the Exhibit, the 3rd Appellant expressed appreciation for the service of the Respondent during his tenure. The Respondent subsequently secured another employment at the Federal Polytechnic, Offa and applied to the 3rd Respondent for the transfer of his cumulative service.

In response to the request, the 3rd Appellant published a statement to the effect that the Respondent was involved in examination malpractices and financial impropriety. This statement was then published to the Federal Polytechnic, Offa without soliciting for same as contained in Exhibit 2. Consequently, the Respondent’s employment was terminated. At trial, the Court gave judgement in favour of the Respondent on the ground that he had proved his claim and that the defences of justification and absolute privilege did not avail the Appellants on the ground that they did not prove the truth of the allegations of examination malpractice against the Respondent. The Appellant appealed to the Court of Appeal which also dismissed the appeal and confirmed the judgment of the trial Court in a majority decision, with Aboji John Ikongbeh, JCA dissenting. Still being dissatisfied, the Appellant filed the instant appeal.

ISSUES FOR DETERMINATION:

The Appellant formulated three (3) issues for determination at paragraph 4, 4.01 of the Appellant Brief of Argument, thus:

“1) Whether the learned Justices of the Court of Appeal in their majority were right in holding that the trial Court had jurisdiction to hear and determine the suit which culminated into this appeal (Grounds 1, 2, and 5).

2) Whether the learned Justice of the Court of Appeal in their majority decision were right in holding that the defence of privilege was not made out by the Appellant on the ground that the truth of the words was not proved (Grounds 3, 4, and 6).

3) Whether the learned Justices of the Court of Appeal were right in holding that the Respondent discharged the onus on him merely upon proof that words imputing a crime were published of him, without further proof that the imputation of crime was false (Grounds 7 and 8).”

On its part, the Respondent also formulated three issued for determination at page 4 of Respondent Brief, thus:

“1) Whether the learned Justice of the Court of Appeal were right in holding that the Court has jurisdiction to hear and determine the suit which culminated in this appeal.

2) Whether the learned Justices of the Court of Appeal in their majority decision were right in holding that the

defence of qualified privilege which was not pleaded and the plea of justification cannot avail the Appellants.

3) Whether the learned Justice of the Court of Appeal were right in holding that the respondent had discharged the onus on him to prove libel.”

The issues formulated by the parties are similar in substance. The three issues formulated by parties are hereby adopted with slight modification for the purpose of determining this appeal thus:

“1) Whether the learned Justice of the Court of Appeal in their majority decision were right in holding that the Court has jurisdiction to hear and determine the suit which culminated in this appeal.

2) Whether the learned Justices of the Court of Appeal in their majority decision were right in holding that the defence of qualified privilege which was not pleaded cannot avail the Appellants.

3) Whether the learned Justice of the Court of Appeal were right in holding that the Respondent had discharged the onus on him to prove libel.”

CONSIDERATION OF ARGUMENTS AND RESOLUTION OF ISSUES:

ISSUE ONE:

“Whether the learned Justice of the Court of Appeal in their majority decision were right in holding that the Court has jurisdiction to hear and determine the suit which culminated in this appeal.”

The main contention of the Appellant is that the Court below was wrong in holding that the trial Court had jurisdiction to hear and determine the matter which was filed outside of the 3 (three) months limitation period prescribed by Section 2(a) of the Public Officers (Protection) Act, Cap 379, LFN 1990. The Appellants’ contention stem from the fact that the 1st and 2nd Appellants are Public Officers as defined by Section 18(1) of the Interpretation Act, while the 3rd Appellant is a Public Institution against whom any action cannot lie if not brought within 3 months of the act complained of. The Appellants relied on the case of HON. EMMANUEL OSELOKA ARAKA VS AMBROSE NWANKWO EJEAGWU (2000) 12 SC (Pt.1), 99 at 122-123.

The Appellants further contended that the publication complained of was made on 18/8/97 while the Writ of Summon was issued to complain of same on 30/12/99, a period of over 2 years after the publication complained of: see DR. MATHIAS OKO OFFOBOCHE VS OGOJA LOCAL GOVERNMENT (2001) 7 SC (Pt.3) 107 at

119-120; MICHEAL AROWOLO VS CHIEF TITUS IFABIYI (2002) 2 SC (Pt.1) 71 at 91. The Appellant therefore submitted that the learned Justice of the Court below in their majority decision were wrong to have held that the Appellants cannot rely on Section 2(a) of the Public Officers’ Protection Act because Exhibit was written in bad faith.

The Appellant further contended that there was no evidence of malice or untrue imputation against the Respondent’s reputation or other exceptional circumstances to justify the filing of the action outside the three months of issuing Exhibits P2 and P7, as such action will become statute barred. See NWANKWERE VS ADEWUNMI (1966) 1 All NLR 119; LAGOS CITY COUNCIL VS OGUNBIYI (1969) 1 All NLR, 297 and DR. MATHIAS OKO OFFOBOCHE VS OGOJA LOCAL GOVT & ANOR (Supra).

In the alternative, the Appellants submitted the suit is incompetent, quoting copiously from the decision in MADUKOLU VS NKEMDILIM (1962) 1 All NLR 587 at 595. The Appellants also relied on KALU MARK & ANOR VS GABRIEL EKE (2004) 1 SC (Pt. 2) 1 at 26; MA’AM GALADIMA VS ALHAJI ADAMU TAMBAI & ORS (2000) 6 SC (Pt.1) 196 at 203.

In his response, the Appellant contended that the purport of Section 2 (a) of the Public Officers Protection Act had been enunciated by the Supreme Court in the case of NWANKWERE VS ADEWUNMI (Supra), per Bret JSC thus:

“The law is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification.”

The Respondent contended that in the instant appeal, the Appellants acted in abuse of office and cannot benefit from the protection of Section 2 (a) of the Public Officers Protection Act. The intention of the Appellants by the content of Exhibit P2 which was sent to a third party, Federal Polytechnic, Offa was to undermine the Respondent, as he had never been indicted or queried in respect of the allegation forming the basis of Exhibits P2 and P7 and the Respondent had never appeared before any Panel on criminal allegation contained in the exhibits

On the issue of failure to pay appropriate filing fees for the amended statement of claim to adjust his claim from One Million to Five Million Naira, the Respondent contended that it is the duty of

the registrar of Court to assess processes for the purpose of paying filing fees and not that of the litigant. The Respondent contended that doing otherwise would amount to technical judgment, and urged that the libel on the Respondent should not be allowed to persist on the ground of Registrar’s wrong assessment. See FAMFA OIL LIMITED VS A.G. FED & ORS (2003) 1 FWLR (Pt.186) 25 at 31; LONG-JOHN VS BLAKK (1998) 5 SCNJ 73; ADEBAYO OGUNDOYIN & 2 ORS VS DAVID ADEYEMI (2001) 7 NSCQR 378 at 380.

I begin with the issue of filing fees. Payment of filing fees is a precondition to Court’s assumption of jurisdiction in a case. The rules of Court make this mandatory. SeeONWUGBUFOR VS OKOYE (1996) 1 NWLR (Pt. 424) 252 at 292 per Iguh, JSC. However, the Appellants’ contention is not that fees were not paid, but that the appropriate fees have not been paid by the Respondent. This is an assertion on the part of the Appellants. Proof is required as to what ought to be paid and what was actually paid. The Appellants have not proved that the assessment of the Court’s Registrar was wrong neither did they state the amount that the Respondent ought to pay.

On the issue of Section 2 (a) of the Public Officers’ Protection Act, I’m in agreement with the Court below. The law is now settled that Section 2 (a) of the Public Officers Protection Act had been enunciated by the Supreme Court in the case of NWANKWERE VS ADEWUNMI (Supra), per Bret JSC thus:

“The law is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification.”

See also LAGOS CITY COUNCIL (TRADING UNDER THE NAME OF LAGOS CITY TRANSPORT) VS & S.S.J. OGUNBIYI (1969) All NLR 287 at 289.

Clearly, the Appellants acted in abuse of office and cannot benefit from the protection of Section 2 (a) of the Public Officers Protection Act. The intention of the Appellants by the content of Exhibit P2 which was sent to a third party, Federal Polytechnic, Offa was to undermine the Respondent, as he had never been indicted or queried in respect of the allegation forming the basis of Exhibits P2 and P7 and the Respondent had never appeared before any Panel on criminal allegation contained in the exhibits.

The issue in this appeal goes beyond the three year rule of limitation of action against a Public Officer. In the con of this appeal, both the trial Court and the Court below saw the bigger picture of abuse of office for which the Respondent has suffered harm to his reputation and career. The 3-year under the above law cannot and must not be allowed as a shield to perpetrate administrative recklessness or to rob Courts of jurisdiction or be used as a basis for declaring a suit incompetent. In view of the above, I resolve issue one in this appeal against the Appellants, in favour of the Respondent.

In view of the foregoing, I resolve issue one in favour of the Respondent.

ISSUE TWO:

“Whether the learned Justices of the Court of Appeal in their majority decision were right in holding that the defence of qualified privilege which was not pleaded cannot avail the Appellants.”

The gravamen of the Appellants’ case on this issue was that in claims for damages in tort of defamation particularly where there is an imputation of crime, the Plaintiff has a duty not only to prove publication but also to prove that the imputation was false, see DR. E.J ESENOWO VS DR. I UKPONG & ANOR (1999) 4 SC

(Pt.1) 56 at 59 and 64 and SKETCH PUBLISHING CO. LTD. VS AJAGBEMOKEFERI (1989) 1 NWLR (Pt.100) at 678. The Appellants contended that the Respondent has failed to prove that the publication complained of was false. The Appellants submitted that the learned Court of Appeal in its majority decision was wrong not to have adverted its attention to the overwhelming evidence of PW.1 and Exhibit 11 which showed that the Respondent failed to disclose the basis of his termination to his subsequent employers, both Offa and Osun State Polytechnics.

In his response, the Respondent contended that the Appellants merely laboured to justify their libel by asserting that the Institute constituted a panel of investigation on the alleged examination and financial malpractices when in actual fact there is no evidence to show that the Respondent was invited to answer to any charges. The Respondent argued that assuming there was any report of the indictment, though not produced in Court, it should be presumed that the report is unfavourable to the Appellants by virtue of Section 149(d) of the Evidence Act.

The Respondent contended further that there is nowhere in the Appellants’ joint statement of defence where qualified privilege is pleaded. The Respondent therefore argued that the Appellants cannot therefore avail themselves of unpleaded defence of qualified privilege as a surprise to the Respondent who did not plead malice, see THOMAS CHUKWUMA MAKWE VS CHIEF OBANUWA NWUKOR (2001) 7 NSCQR 435 at 438.

One of the contentions of the Appellants was that since the Court held that they were not entitled to the defence of absolute privilege, they were nonetheless entitled to the defence of qualified privilege even though not pleaded. The law on this issue is long settled. In OFFOBOCHE VS OGOJA (Supra), this Court had this to say:

“Where in an action for defamation the defendant raises a defence of privilege, he should as a matter of pleadings aver the facts on which the defence is based… If it is clear on the face of the statement of claim that the occasion was absolutely privileged, it is sufficient to plead that the statement discloses no cause of action. But otherwise the defendant must plead the facts on which he relies as giving rise to the privilege, whether absolute or qualified.

In the absence of such plea, the defendant cannot adduce any evidence at the trial to establish such a defence nor cross-examine the plaintiff’s witnesses with a view to a submission that the occasion was privileged. It is not sufficient merely to aver that the defendant pleads the defence of qualified privilege, or to aver that the publication was made on a privileged occasion.”

The above sums it up. The appellants having failed to specifically plead qualified privilege they cannot be heard to complain that the trial Court was wrong. As rightly observed by the Court below, the findings of the lower Court on this issue is unassailable, sound and logical. The Appellant cannot be said to be entitled to the plea of qualified privilege in this case. In ILOABACHIE VS ILOABACHIE (2005) 5 SCNJ 84 at 293-294, the Supreme Court per Pats-Acholonu, JSC stated the legal position by relying onPULLMAN VS HILL LTD (1891) 1 Q.B. 528 where Lord Esher M.R. said that:

“An occasion is privileged when the person who makes the publication has a moral duty to make it to the person to whom he does make it and the person who receives it has an interest in hearing it.

Both these conditions must exist in order that the occasion may be privileged. I believe in considering the defence of privilege, whether qualified or not, there are some empirical factors that should be taken into consideration and these include the interest of any of the persons to whom the document was published and the circumstances of the matter in question. .. the Court should consider the motive for the publication to examine whether it is actuated by purely altruistic principles or tendencies or malicious and injurious motive…”

In this case, the assumed defence of qualified privilege is destroyed by ill-motive or malice where this is proved, as the Respondent had demonstrated by credible evidence in this case. In OFFOBOCHE VS OGOJA, this Court clearly set the record straight that malice would defeat the defence of qualified privilege, assuming this is pleaded by the Appellant. Whichever way one looks at the circumstances of this case, particularly issue two under consideration, the defence of qualified privilege cannot avail the Appellants for the simple fact that it was not specifically pleaded, and assuming it was, it would still have been vitiated by

obvious malice and ill-motive given the facts and circumstances of this case.

In view of this, I also resolve issue two against the Appellants.

ISSUE THREE:

“Whether the learned Justice of the Court of Appeal were right in holding that the Respondent had discharged the onus on him to prove libel.”

The basis of the Appellants’ contention is that the onus of proving libel is on the Plaintiff who should prove that:

“i) That the defendant published a statement in a permanent form

ii) That the statement referred to him.

iii) That the statement was defamatory of him in the sense that it lowered him in the estimation of right-thinking members of the society; or it exposed him to hatred, ridicule or contempt, or it injured his reputation in his office, trade or profession, or it injured his financial credit.”

The Appellants’ contention was that the evidence tendered by the Respondent ought not to have been accorded as much weight as to tilt the pendulum of victory in favour of the Respondent. The Appellants contended further that there is evidence to the effect that the publication complained of was made on a privileged

occasion, coupled with the self-dignifying Exhibits P11 made by the Respondent and tendered through him should have weighed heavily on the imaginary scale to dislodge the Respondent’s evidence. The Appellants therefore urged this Court to interfere with the concurrent finding of facts of the trial Court and Court below and dismiss the Respondent’s claims.

In his opposing arguments on the issue, the Respondent reiterated that the onus lies on the Appellants to prove the truth of the words so published. See A.C.B. LTD VS B.B. APUGO (2001) 5 NSCQR 549 at 552. The Respondent contended that he had successfully proved the publication, and that the statement in the said publication was defamatory of him in the sense that it injured his reputation in his office and that same led to his termination by Federal Polytechnic, Offa. The Respondent asserted that the Appellants could not prove the truth of the allegation contained in Exhibit P2.

The Respondent asserted that he had successfully proved that the allegation against him was false and that there was no time he was accused of examination malpractices or financial misconduct.

The Respondent submitted that in civil cases, the Court gives judgment to the Plaintiff on balance of probabilities, citing the case of NSIRIM VS ONUMA CONSTRUCTION COY. NIG.LTD. (2001) 5 NSCQR 759 at 760. The Respondent then submitted that the Plaintiff is not expected to prove his case beyond reasonable doubt but on preponderance of evidence, see PETER ADEBOYE ODOFIN VS DR. B. JIMOH ONI (2001) FWLR (Pt.36) 807 at 817.

In his final submission on the issue, the Respondent asserted that the Court of Appeal was right in its majority decision which confirmed the findings of the trial Court that the Respondent has proved all the ingredients of libel as adumbrated in the case of SKETCH VS AJAGBEMOKEFERI (Supra), and urged this Court to resolve issue three in favour of the Respondent and dismiss the appeal.

The onus of proving of proving libel rests on the Plaintiff. On the authority of SKETCH VS AJAGBEMOKEFERI (Supra), to succeed in a claim premised on libel, the Plaintiff must prove the following:

“i) That the defendant published a statement in a permanent form.

ii) That the statement referred to him.

See Also A.C.B. LTD VS B.B. APUGO (2001) 5 NSCQR 549 at 552.

In the instant case, the Respondent had pleaded and has successfully proved the publication. He also established that the statement in the said publication was defamatory of him in the sense that it injured his reputation in his office and that same led to his termination by Federal Polytechnic, Offa. More confounding is that having proven these, the Appellants have been unable to logically prove the truth of the allegation contained in Exhibit P2. The Respondent asserted that there was no time he was accused of examination malpractices or financial misconduct. A prudent defendant would have adduced facts and documentary evidence to debunk this vital assertion of the Respondent. Inability to do this only pushes the onus back to the Appellants.

Civil cases are decided on the balance of probabilities, as the Plaintiff is not expected to prove his case

beyond reasonable doubt but only on preponderance of evidence. See NSIRIM VS ONUMA CONSTRUCTION COY. NIG. LTD. (2001) 5 NSCQR 759 at 760. See PETER ADEBOYE ODOFIN VS DR. B. JIMOH ONI (2001) FWLR (Pt.36) 807 at 817.

In my view, the Court below was right in its majority decision which confirmed the findings of the trial Court that the Respondent has proved all the ingredients of libel as adumbrated in the case of SKETCH VS AJAGBEMOKEFERI (Supra).

I acknowledge the submission of the Appellants wherein the learned Appellants’ Counsel urged us to disturb the concurrent findings of the two Courts down the stairs of our judicial hierarchy. This Court cannot disturb concurrent finding of fact by the trial Court and Court below contrary to the supposition of the Appellants. The law is trite and well established that an appellate Court may interfere with findings of a trial Court when such findings have been made on legally inadmissible evidence, or they are perverse or are indeed not based on any evidence before the Court. See the cases of SELE VS THE STATE (1993) 1 NWLR (Pt.267) P.276 at 282 and IYARO VS THE STATE (1998) 1 NWLR (Pt.69) P.256.

See also Re: MOGAJI (1986) 1 NWLR (Pt.19) 759; SALAMI VS THE STATE (1988) 3 NWLR (Pt.85) 670; MBENU VS THE STATE (1988) 3 NWLR (Pt.84) 615. per Nnamani, Pg. 626 para A-B 8, Paras. D-F).

There are clear, direct, credible documentary evidence to justify the decisions of the trial Court and Court below. We are convinced that the findings are not perverse and are supported by credible documentary evidence, particularly Exhibits P2 and P7. The findings were neither reached as a result of a wrong approach to the evidence; or as a result of a wrong application of evidence; or as a result of a wrong application of any principle of substantive law or procedure which would have warranted our intervention. See ARABAMBI VS ADVANCE BEVERAGES IND. LTD. (2005) 19 NWLR (Pt.959) 1 per Onnoghen, JSC (P. 46, C-E). See also OCHIBA VS STATE (2011) 12 SC (Pt.IV) P.79. Per Rhodes-Vivour, JSC (PP. 51-52, Paras. F-B). See also CAMEROON AIRLINES VS OTUTUIZU (2011) 12 SC (Pt.III) P. 200; OLOWU VS NIG. NAVY (2011) 12 SC (Pt.II) P.1; AROWOLO VS OLOWOOKERE & 2 ORS. 2011 11-12 SC (Pt.II) P.98.

In view of the above, I also resolve issue three in favour of the Respondent.

I hold that the trial Court properly evaluated the evidence in the suit for the purpose of considering issues raised before it and the Court below was right in upholding the decision of the trial Court.

In view of the above, and as a consequence thereof, I hold that this appeal is lacking in merit. It therefore fails and is hereby dismissed for reasons as contained in the above analyses. The majority Judgment of the Court of Appeal sitting in Ilorin dated 5th January, 2006 is hereby affirmed.

This is an old appeal. The gains of this victory would appear to have been further eroded by inflationary trends. This is one situation in which reasonable cost is desirable and appropriate. I award cost of Two Million Naira in favour of the Respondent.

SC.46/2006

Alhaji A.r. Sule & Ors V. Mr. J. Orisajimi (2019) LLJR-SC

Alhaji A.r. Sule & Ors V. Mr. J. Orisajimi (2019)

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