Alhaji Ahmadu Abubakar Daura V. Alhaji Abdulkadir Danhauwa (2009)

LawGlobal-Hub Lead Judgment Report

JOHN INYANG OKORO, J.C.A.

The action which gave birth to this appeal was instituted by the Respondent at the High Court of Justice, Katsina State. The Respondent took out a writ of summons dated 9th day of May, 2005 and filed a statement of claim on the same date. His claim before the trial court was for damages for defamation arising from an application to file criminal complaint bordering on misappropriation and cheating by the Appellant against him before Senior Magistrate Court V Katsina which was written on behalf of the Appellant by his Counsel. The suit before the Senior Magistrate was however struck out. The Respondent’s claims against the Appellant at the Court below were:-

1. Public apology from the Defendant (now Appellant) in a Newspaper circulating in Katsina State and beyond.
2. Ten million naira damages for defamation of character
3. Cost of filing the action.

At the trial the Respondent called three witnesses and tendered seven exhibits: The Appellant called just one witness for his defence as applications for adjournment to enable him call more witnesses were rejected by the Court. On 27th December, 2006, the trial court delivered its judgment and entered judgment for the Respondent as follows:-

“1. The defendant should tender an unreserved apology to the plaintiff in a Newspaper circulating within Katsina State and beyond.

2. The defendant should pay the sum of N50,000.00 as exemplary damages to the plaintiff.
3. The sum of N2,410.00 being the cost of filing this suit.”

Dissatisfied with the stance of the learned trial judge, the Appellant filed Notice of Appeal on 8th January, 2006 containing four grounds of appeal. In the Appellant’s brief dated 31st March, 2007, four issues have been distilled for the determination of this appeal as follows:-

“1. Whether having regard to the evidence adduced before the trial Court, the Appellant actually defamed the character of the Respondent (Ground 1).

2. Whether the trial Court was right when it awarded the sum of N50,000.00 as exemplary damages to the plaintiff (now ground two).
3. Whether the trial Court was right when it refused an adjournment of the case and closed down the Appellant’s defence (Ground three).
4. Whether the trial Court was right when it refused an application for an adjournment to enable Counsel prepare and address the Court (Ground four).

The learned Counsel for the Respondent formulated three issues thus:-

“1. Whether from admissible evidence before the Court, the lower Court was right in finding for the Respondent for defamation of character.

2. If the answer to (1) above is in the affirmative, whether the lower Court was right in awarding damages for defamation of character.
3. Whether the lower Court was right in exercising its discretion against the Appellant on 13th October, 2006 and 20th December, 2006 over applications for adjournment.”

When this appeal came up for hearing on 26th March, 2009, only the Appellant was represented by Counsel. The Respondent’s Counsel was absent but since both parties had filed and exchanged their briefs, the appeal was deemed as duly argued vide Order 17 Rule 9(4) of the Court of Appeal Rules, 2007.

The Respondent had filed Notice of Preliminary Objection dated 24th April, 2007 on the 25th April, 2007. His arguments in respect of the Objection are contained on pages 1 – 2 of the said brief. But it appears he had abandoned it as the notice was not moved by his Counsel. I need to emphasize that filing a process is different from arguing it in Court. Where notice of preliminary objection is filed, Counsel has a duty to move it to enable the Court rule on it one way or the other. Where a notice of preliminary objection is filed but not moved in Court, it is as good as not having been filed. See Oforkie Vs. Maduike (2003) 5 N.W.L.R. (Pt. 812) 165, UPS Ltd Vs. Ufot (2006) 2 N.W.L.R. (Pt. 963) 1.

Although a notice of objection may be given and argued in the brief, it does not dispense with the need for the Respondent to formally move the Court at the hearing of the appeal for the relief sought. Notice of preliminary objection whether filed separately or incorporated in the brief is akin to an expression of intent by the Respondent. Therefore, the Respondent must ask for leave to move the objection before the oral hearing of the appeal commences, otherwise it will be deemed to have been waived and therefore, abandoned. In the instant appeal, although the Respondent filed notice of preliminary objection and argued same in his brief, he did not move the Court as to that notice of objection. I am of the view that it was incumbent on the Respondent to have moved his preliminary objection before the hearing of the appeal proper particularly so when the Appellant in his reply brief responded to and attacked the preliminary objection with all vehemence. Not having moved his preliminary objection, the respondent must be taken to have abandoned it and it is accordingly struck out. See Nsirim Vs. Nsirim (1990) 3 N.W.L.R. (Pt. 138) 285, Ariori Vs. Elemo (1983) 1 S.C.N.L.R. 13 and Ajibade Vs. Pedro (1992) 5 N.W.L.R. (Pt. 241) 257.

Although the Appellant has formulated four issues for the determination of this appeal, there are basically three issues only as identified by the Learned Counsel for the Respondent in his brief. The 4th issue of the appellant’s brief is indeed a repetition of his issue No.3. Accordingly this appeal shall be determined based on the first three issues in the appellant’s brief which are the same as those couched by the Respondent.

In the brief prepared by Ahmed M. Danbaba Esq on behalf of the Appellant, it is submitted on the 1st issue that the trial Court erred in law when it failed to properly consider and evaluate the evidence and exhibits before it. That the evidence adduced by the Respondent did not prove the essential ingredients of defamation. Also that how and where the words complained of were uttered by the Appellant were wanting in the evidence of the Respondent before the Court. Learned Counsel submits finally on this issue that Exhibit G, which was the basis of the suit at the trial Court could not be interpreted by any means to ground action for defamation. That Exhibit G is a letter written by Counsel to the Appellant in the course of his duties to his client and as such it cannot be defamation since it was written on a privileged occasion relying on the case of Mamman Vs. Salaudeen (2005) 24 N.S.C.Q.R. 360.

It was however the contention of the Learned Counsel for the Respondent that the Respondent’s claim for defamation before the lower Court is hinged on Exhibit G, a direct complaint against the Respondent and that Exhibit G was admitted in evidence by the Court below without objection by Appellant’s Counsel. That the document speaks for itself and accused the Respondent not only of cheating and misappropriation but also of deceit. On principles governing the tort of defamation, Learned Counsel cited the case of Edem Vs. Orpheo Nigeria Ltd (2003) 13 N.W.L.R. (Pt. 838) 537