David-west V. Oduwole (2003)

LawGlobal-Hub Lead Judgment Report

MURITALA AREMU OKUNOLA, J.C.A. 

This is an appeal against the judgment of the High Court of Oyo State of Nigeria holden at Ibadan presided over by R. G. Oyetunde, J., and delivered on 1st day of July, 1999.

The facts of this case briefly put were as follows:

The writ of summons and statement of claim in this matter were filed on the 8th of October, 1996, plaintiff therein claimed against the defendants damages for libel contained in the Nigerian Tribune of Monday, 2nd September, 1996. The pleadings were subsequently amended and the prevailing statement of claim and statement of defence are the further amended statement of claim and the further amended statement of defence. Plaintiff called four witnesses including himself in proof of his case, defendants elected not to give evidence in rebuttal and after addresses by learned counsel for the parties, the trial Judge gave judgment on the 1st of July, 1999. In the judgment, the learned trial Judge held that only one allegation made by the defendants against the plaintiff was libelous and awarded N10,000.00 to the plaintiff as damages against the defendants for the libel proved.

Dissatisfied with this judgment, the plaintiff appealed to this court on two original grounds of appeal and with leave of court granted on the 18th of March, 2002, filed three additional grounds of appeal. From the five grounds, the appellant herein formulated three issues for determination in this appeal, viz:
“1. Whether from the facts of this case, the statement that plaintiff “left the Ministry of Petroleum Resources in a comatose State” is an opinion, not a statement of fact and therefore irrelevant?.
2. Whether the learned trial Judge was right when he cast the burden of proving fair comment on the plaintiff?.
3. Whether the quantum of damages awarded in this case was fair and adequate?.”

The respondents also formulated a single issue which but for style used is the same with issue No.3 of the appellant.

Both learned counsel to the parties filed their briefs of argument on behalf of their respective clients. On 23/1/03, when this appeal came for hearing, learned counsel for the parties adopted and relied on their respective briefs and addressed us viva voce. Learned counsel for the appellant, Mr. T. R. Ikpotor adopted and relied on the appellant’s brief filed herein on 20/5/02 and urged the court to allow the appeal. By way of reply, learned counsel for the respondents, Mr. Akin Ige adopted and relied on the respondents’ brief filed herein on 12/7/02 and urged the court to dismiss the appeal. He also moved in terms of the preliminary objection contained in the respondents’ brief. Mr. Ikpotor said he had nothing to add.

I have considered the submissions of both learned counsels to the parties highlighted above. It is now necessary to consider the three (3) issues raised by the appellant vis-a-vis the records and the prevailing law particularly as reiterated in their briefs of argument.

I shall take issues 1 and 2 together. On issue No. 1, bordering on whether from the facts of this case, the statement that plaintiff “left the Ministry of Petroleum Resources in a comatose state” is an opinion, not a statement of fact and therefore irrelevant, both learned counsel to the parties made copious submissions in their respective briefs of argument. On pages 2 & 3 of the appellant’s brief, learned counsel to the appellant submitted that the trial court was wrong when he held that the above quoted statement is an opinion, not a statement of fact and therefore irrelevant.

After defining a fact as distinct from an opinion from Ballentine’s Law Dictionary, 3rd Edition, learned counsel contended that in the instant case, the defendants never gave evidence to establish any fact that the plaintiff left the Ministry of Petroleum Resources (hereinafter referred to as the Ministry) in a comatose state and that neither did they tender any fact that could lead to such a conclusion or inference. Learned counsel recalled the evidence of the plaintiff that he left the Ministry in a stronger and healthier state on which he tendered exhibit ‘U’.

In conclusion, learned counsel submitted that the trial Judge was clearly wrong not to have concluded that the statement was libelous of the plaintiff.

On Issue No.2 which centres on whether the learned trial Judge was right when he cast the burden of proving fair comment on the plaintiff, both learned counsel made their submissions in their respective briefs of argument. By way of summary, learned counsel to the appellant on pages 3 & 4 of the appellant’s brief submitted that it is trite that though in civil proceedings, the onus of proof is not static as it shifts but the burden of proving that the comment is fair and not actuated by malice is on the defendant who relies on the defence.

Consequently, learned counsel submitted that since there was no evidence on record by the defendants, that the comment was fair or honestly made, the learned trial Judge was wrong to hold that the allegations concerning the setting up of the Commission of Enquiry into the Rivers State Ministry of Education, the controversy over the M. V. Tuma and plaintiff’s conviction of November 16, 1990 were not libellous of plaintiff.

By way of reply, learned counsel to the defendants/respondents raised a preliminary objection with respect to grounds 1, 3 & 4 of the grounds of appeal on which issues 1 & 2 are predicated, submitting that both the grounds, the issues and the arguments canvassed in support thereof contained in the appellant’s brief are totally misconceived and ought to be struck out for the following reasons: