Bayode Afolabi V. Chief Samuel Fehintola Alaremu (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE E. IYIZOBA, J.C.A (Delivering the Leading Judgment)

The appellant sued the respondent for libel claiming N5 million as damages. The appellant, a pensioner and former Principal Registrar of Ondo State Judiciary is a native of Daja Village, Ajowa, Akoko North West Local Government of Ondo State. The respondent, a former employee of N.E.P.A and also a native of Daja village denies that the appellant is from Daja village. The respondent had interest in the Shaba chieftaincy stool of Daja-Ajowa.

Due to certain disputes regarding the stool, the respondent instituted a suit at the High court and then instructed his lawyer to write a letter complaining about the activities of the appellant regarding the suit he filed. The appellant’s cause of action is founded on the contents of the letter written by the respondent’s lawyer. Paragraphs 4 and 5 of the appellant’s 2nd amended statement of claim state as follows:

“4. Subsequent to the aforementioned suit filed by the defendant, the defendant caused his solicitors, R.A. Olagunju & co to write to the Secretary of Akoko North West Local Government, Ondo State, copies of which were made available to Oba Julius Kehinde, the Oludaja of Daja, Ajowa Akoko, the Divisional Police Officer, the Nigerian Police Station, Oke-Agbe, Akoko North West Local Government and natives and members of Daja and Ajowa communities and in the said letter dated 4th April, 1997, the defendant falsely and maliciously wrote and published to the aforementioned of and concerning the plaintiff, the words following, that is to say “we are writing you this letter to bring to your notice…the activities of one Mr. Bayode Afolabi, a sojourner at Daja who now, according to our instructions, is claiming to be leader of the people of Daja at Ajowa”

5. In the same letter, the defendant in paragraph 4 said “…in the hope that you will call Mr. Bayode Afolabi to order, before he precipitates a breakdown of law and order in the area”….”

In his statement of defence, the respondent pleaded that the averments above were true. He pleaded as follows:

“2. In answer to paragraph 1 of the amended statement of claim the plaintiff is indeed a pensioner having retired from the judiciary of Ondo State; but denies that he is a native of Daja, Akoko as his native town is a place called “EJE” town far away from Daja town in Ajowa. In support of this assertion the defendant shall rely on a copy of a petition written by “The Chiefs of Oyagi Quarters Daja – Ajowa, dated 2/7/58, titled Oludaja Chieftaincy Kingmakers:

Appointment of the Chief Shaba of Daja-matters affecting, and addressed to the Chieftaincy Committee, Ajowa Local Council, c/o Secretary/Treasurer, Ajowa Council, Ajowa, and signed by Chiefs (1) Elejiyan (2) Obanubi (3) Oludo (4) Obarinde (5) Eleta (6) Obaniyi and (7) Obademi.

2(a). Further to paragraph 2 above the defendant avers that one Josiah Obarishe referred to in paragraph 3 of the petition was Plaintiff’s father; the defendant pleads a portion of the judgment in SUIT NO. 15/35: JOSIAH SHABA (M) OF DAJA ON BEHALF OF HIMSELF AND HIS FAMILY 30 MALES OF DAJA IKARAM GROUP, VERSUS THE OLOJO OF OJO ON BEHALF OF JOEL YAYA AND THE PEOPLE OF ARIGIDI GROUP, in which plaintiff’s father deposed, inter alia at page 2 of the said judgment in the following words; “the land belonged to my father. It neither belongs to Daja nor Ojo but to my family, the EJE family, who had a village of their own but joined Daja before my great grandfather’s time. EJE is the name of my family. It has no special meaning” as constituting a statement against interest by plaintiff’s father, and by operation of law, against plaintiff’s interest.

“6. In answer to paragraph 4 and 5 of the statement of claim, the defendant avers that he instructed his lawyers, Messrs R.A. Olagunju and company to protest against activities of the plaintiff in respect of a suit, he, the defendant instituted at the High court in respect of Shaba Chieftaincy in Daja-Ajowa.

7. Further to paragraph 6 above, the defendant avers that he did not mean to insult or defame the plaintiff in any manner when he called him a sojourner at Daja; that he merely brought to the notice of the Local Government Secretary that the plaintiff was not a native of Daja and ought not to meddle in respect of Shaba Chieftaincy which in no way concerned him.”

After pleadings were duly exchanged the trial came before E.A. Komolafe J at the Akure division of Ondo State High Court. The learned trial judge heard evidence from both sides and admitted in evidence as Exhibit p8 the petition referred to in paragraph 2 of the amended statement of defence as set out above but rejected as inadmissible the certified true copy of the judgment in suit no. 15/35 referred to in paragraph 2(a) of the amended statement of defence. The learned trial Judge in a considered judgment dismissed the appellant’s claim. Dissatisfied with the judgment, the appellant has appealed to this court.

Briefs were filed and duly exchanged. The appellant formulated six issues for determination:

1. Whether legally inadmissible evidence which is wrongly admitted by the trial court can be used to form the basis of a just judgment.
2. Whether the learned trial judge can rely on the quoted passage on page 1 of exhibit p8, also on paragraph 2(a) of the Amended Statement of Defence when the document upon which the statement was made was not before the court.
3. Whether paragraph 2(a) of the Defendant’s Amended Statement of Defence without more can form the basis upon which Judgment is given without the benefit of admissible evidence.
4. Whether the failure of the plaintiff to call evidence to discredit exhibit p8 entitled the court to believe the averments in the Defendant’s statement of Defence and consequently base his judgment thereon.
5. Whether the defendant proved the truth of the publication made by him concerning the plaintiff and if so whether the plea of Justification was available to the respondent.
6. Whether the appellate Court seized of the matter is competent to evaluate the whole evidence and award damages claimed in the lower court.

The respondent formulated only one issue for determination:

1. Whether a plea of justification is available to the respondent on the facts of this case.

Both counsel adopted and relied on their respective briefs.

ISSUE NO. 1