Fred Egbe V. The Hon Justice J. A. Adefarasin (1987)
LawGlobal-Hub Lead Judgment Report
In this action founded in slander, the Appellant, a legal practitioner resident at 197 Adeleke Adedoyin Street, Victoria Island, Lagos, sued the defendant, the then Chief Judge of Lagos State,claiming N500,000.00 (five hundred thousand Naira)”being general and special damages suffered as a result of the slander of the Plaintiff by the Defendant on the 23rd day of March 1978. ”
Although for the resolution of this appeal only one solitary legal issue needs to be dealt with, yet for a proper understanding of the dispute between the parties it is necessary to look at the background facts of the case as adduced in evidence.
It all began in 1977. The Appellant was visited in his office in Western House by a legal practitioner, one Dele Ogedengbe, who informed him that he had reached an agreement with a man called Bennie, who was the Managing Director of Laing Construction Limited, for him to rent a house situated at Victoria Island belonging to the defendant. Mr. Ogedengbe was acting for the defendant. He said he had come on the instruction of the defendant to request the Appellant to accelerate the preparation of legal documents so that Mr Bernie could pay the agreed rent of N50,000.00 (fifty thousand Naira) per annum, payable 5 years in advance, to the defendant.
Mr. Ogedengbe however informed the appellant that there was another house belonging to one Mr. Dove Edwin, the then Nigerian Ambassador to France, which they needed to hire in respect of which the preparation of legal documents should be given priority. The rent of Mr Dove Edwin’s house was N42,000.00. The reason why they required Dove Edwin’s house for immediate occupation was because it was a specially designed house having over half an acre of grounds as against the house of the Respondent. The house of the Respondent was to be kept in view to await further instructions.
To the surprise of the Appellant, on 23rd March 1978 the appellant was arraigned before a Magistrate V.B.A. Famakinwa, charged with one Mr Le Fevre, with stealing N450,000.00 property of the American International Insurance Company of Nigeria Limited. The charge
(Exhibit 1) reads:
“IN THE MAGISTRATE’S COURT OF LAGOS STATE
HOLDEN AT COURT No.1, LAGOS
THURSDAY THE 23RD DAY OF MARCH, 1978
BEFORE HIS WORSHIP
V.B.A. FAMAKINWA, ESQ.
CHIEF MAGISTRATE GRADE 1
FRED EGBE VS. HON I.A. ADEFARASIN (COURT 2) 6/10/81
CHARGE NO. A/22/73
COMMISSIONER OF POLICE V.
- LOUIS DUBOIS LEFEVRE (m)
- FRED EGBE (m)
“That you Louis Dubois Lefevre and Fred Egbe between the 28th day of November, 1977 and 10th day of February 1978 at Lagos in the Lagos Magisterial District, conspired together to commit a felony to wit: Stealing the sum of N450,000.00 (Four hundred and fifty thousand Naira) property of American International Insurance Company Nigeria Limited and thereby committed an offence punishable under Section 516 of the Criminal Code.
2nd Count: That you Louis Dubois Lefevre and Fred Egbe between 10th day of February, 1978 and the 14th day of February, 1978 at Lagos, in the Lagos Magisterial District stole the sum of N450,000.00 (Four Hundred and fifty thousand naira) property of the American International Insurance Company Nigeria Limited and thereby committed an offence contrary to Section 390(9) of the Criminal Code.”
Although Magistrate Famakinwa had offered bail to the Appellant the Appellant oddly enough, refused to go on bail and chose to be remanded in custody. He remained in custody up to 30th April 1978. It was while he was in custody that he was visited by one Mr Aderemi Odofin who told him what the Respondent had said that the amount involved in the matter was N4 million and that one Mr. Allison Ayida was present when the respondent spoke.
The Appellant on 17th November 1980 wrote a letter (Exhibit 5) to the Respondent which letter was replied on the instruction of the respondent by the Personal Secretary to the Respondent, one Mrs. I.O. Oluwole (Exhibit 6). The two letters read.
Exhibit 5 Fred Egbe,
17th Floor , Western House,
8-10 Broad Street,
P.O. Box 2845
The Hon. Mr Justice A. Adefarasin,
Chief Judge of Lagos State,
Lagos High Court,
I have been told recently that you have made two specific complaints about me, the first being that in 1977, I was instrumental in depriving you of profitable tenancy arrangement in connection with your properties in Victoria Island, and the second to the effect that I have made away with some four million Naira, the property of some unspecified persons.
With regard to the first point, whilst it is true that a legal practitioner by the name of Ogedengbe had informed me that you had reached an agreement with Laing Construction Ltd. (my then clients) in connection with your property in Victoria Island, and that you would appreciate an expedition of documentation, I state categorically that the eventual breakdown in negotiations between yourself and Laing Construction had nothing to do with me whatsoever. I would also like to state that the said Laing Construction did not take any property belonging to me, and that I did not in any way benefit from their decision to rent a property belonging to George Dove-Edwin, our present Ambassador in Paris.
On the second point, I would like to state that I have never taken anybody’s money, whether in the sum of four Million Naira or any other amount, and that I should be grateful if you would be kind enough to make available to the proper authorities any evidence you may have to the contrary.
(Sgd.) FRED EGBE”
Mr. Fred Egbe,
8/10 Broad Street,
P.O. Box 2845,
Dear Mr. Egbe,
I am directed by the Hon. the Chief Judge of Lagos State to refer to your letter dated 17th November 1980 and to express His Lordship’s shock at reading the content of the letter. Not only was his Lordship never aware of any of the matters referred to by you, he had never made any complaint about you to anyone, orally or in writing, about any matter whatsoever or any of the ones mentioned in your letter.
His Lordship wishes me to say that he had no agreement or discussions whatsoever, in 1977 or at any other time, with Laing Construction Limited about any property or any other subject. He had never known anyone connected with that Company and had never authorized anyone to hold any discussions with the Company.
If Mr. Ogedengbe had said anything to you concerning any agreement, which allegation he had denied, it was not to his Lordship’s knowledge or on his authority.
“I am to add that his Lordship knows nothing whatever about the matters you have alleged in your letter. He wonders what would be the purpose of making such an insulting, unwarranted and unjustified attack on a Judicial officer.
(Sgd.) MRS I.O. OLUWOLE
PERSONAL SECRETARY TO THE
HON. CHIEF JUDGE.”
It would appear that for the prosecution of the Appellant a consent order (Exhibit 2) was granted to the prosecutor, one Mr. Ilori, by the Respondent. Exhibit 2 reads:
CHIEF JUDGE’S CHAMBERS
HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
THE STATE VERSUS FRED EGBE (M)
I JOSEPH ADETUNJI ADEFARASIN. CHIEF JUDGE of the High Court of Lagos State, hereby give my consent to a Criminal Information being preferred in the above indictable offence under and by virtue of paragraph 8 sub-section 240 of the Criminal Procedure Law.
(Sgd.) J .A. Adefarasin
HIGH COURT OF LAGOS STATE.
Dated this 11th day of October, 1978″.
The appellant testified that Mr. Bennie told him that the Defendant complained bitterly about his house not being rented and that in fact he was angry.
The Appellant’s complaint was that all that facade of his being charged before the Magistrate and the subsequent consent order granted by the Respondent, were all done, not for a prosecution of due judicial process, but by the contrivance of the Respondent to punish him for his Victoria Island house not being rented by Laing Construction Ltd. It was, as he termed it in his brief, “judicial oppression”. The implication was that the Respondent was using judicial process to even out scores with him. He had committed no offence; did not steal any money from any insurance company, and no one complained that he had stolen any money. The further implication was that the Respondent’s judicial action in granting the consent order was malicious.
Pleading were ordered and filed. The defence put up by the Respondent were in short:
(i) that under section 10 of the Limitation Law Cap. 70 Laws of Lagos State 1973 the action was statute-barred;
(ii) that in fact there was no slander of the plaintiff by the defendant; and
(iii) that the words alleged spoken by the defendant caused plaintiff no damage.
The High Court, per Candide Ademola Johnson, J. (as he then was) dismissed the claim not only on the ground that it was statute-barred but also on the ground that it was totally without merit. On appeal to the Court of Appeal, that Court (Nnaemeka-Agu, Kutigi and Pepple, JJ.C.A.) upheld the judgment of the High Court and dismissed the appeal.
Appellant has appealed to this Court upon four grounds of appeal set out hereunder:
“GROUNDS OF APPEAL
The learned Justices of Appeal erred in law in rejecting the Appellant’s contention that a finding by the learned trial judge that Appellant’s action was statute barred under Section 10 of the Limitation Law implied that there was a cause of action and that the cause of action was one for slander which was actionable per se.
A finding that an action is statute barred, is a conclusive application of statute law to a given set of facts, which facts must be either admitted or established by evidence. A fortiori, a cause of action cannot be statute barred unless it exists as a fact.
The learned Justices of Appeal erred in law in failing to apply the principle of estoppel enshrined in the authority of Tuburvill (sic) – vs Ham Corporation 1950 2 K.B. 208 to the circumstances of the present case with a particular reference to Exhibit 6-the letter dated 21st November, 1981 addressed to the Appellant on behalf of and by the authority of the Respondent in which the Respondent denied ever publishing or communicating any information concerning the Appellant:
The learned Justices of Appeal erred in law and in fact in holding that there was no evidence disproving the contents of Exhibit 6 or establishing that the document is false.
(a) Matters referred to in the Appellant’s letter of 17th November, 1980 of which the Respondent was “never aware” are inter alia the Respondent’s instructions to Mr Ogedengbe a Lagos Lawyer to let the Respondent’s house in Victoria Island. It was established through the evidence of Mr Ogedengbe on oath that he had acted for the defendant and had let both the Respondent’s houses on that same plot in Victoria Island.
(b) In Exhibit 6 the Respondent “knows nothing whatever” about the allegation that the Appellant had taken some 4 million Naira from some unspecified persons. It was established in the judgment that Respondent had revealed in March 1978 that he had heard that the Respondent had taken 4 million Naira.
(c) The Appellant denied that there was a meeting between himself and Messrs Allison Ayida and Remi Odofin in March, 1978. There was a finding by the Judge that such a meeting did take place.
indeed was “surprised” not that Fred was alleged to have (sic) taken money nor because he had taken money from an insurance company but because he had been told that the amount involved was about 4 million. This was the slanderous publication.
(c) The learned trial judge also accepted and the learned Justices of Appeal agreed that
At this stage Mr. Allison Ayida insisted (which incidentally he need not have done).
“I assured him that it was N450,000.00 as I was from Fred and he told me so. He then said if it was N450,000.00 he would be very surprised because he cannot see Fred being tempted by such an amount. If it were 4 million then anybody would be tempted” .
(d) The Justices of Appeal have like the learned trial judge ignored the principal slander and have given “an erroneous construction to a supplementary statement made by the Respondent in an attempt at devaluing (sic) Mr. Ayida’s assurances and in reinforcement of the principal and slanderous statement.
(e) The Respondent had either clearly fabricated the story himself or was repeating a defamatory communication originated by others”
I consider the issue of Limitation under section 10 of the 1973 Laws of Lagos State raised by the defence as of paramount importance since no useful purpose will be served in dealing with other issues in the Appeal if the action was, indeed, statute-barred. However meritorious the other issues in the appeal might be, if the action was barred by Statute, no amount of resort to the merits of the Appellant’s contentions will serve to keep the action in being.
The said Section 10 of Law Cap 70 of Lagos State reads:
“An action claiming damages for slander shall not be brought after the expiration of three years from the date on which the cause of action accrued”.
The learned Justices of appeal erred in law and in fact in holding that the words proven to have been spoken by the Respondent concerning the Appellant, were not defamatory of the Appellant.
(a) The learned trial judge and the learned Justices of Appeal did not disagree with the following words spoken by the Respondent “Allison I am surprised to hear that because 1 was told that the amount involved was about 4 million”.
(b) The Resift, as it was alleged, the defendant uttered the slanderous words on 23rd March 1978 then three years from that date would arrive on (not counting the day 23/3/78) 24th March 1981. But the Appellant took out his writ on 6th October 1981. Prima facie, he would be about six months out of time.
The Appellant has, however, argued both orally before us and in his brief, that on principle, he was not out of time because:
(i) the damage resulting from the slander had not occurred until the date he was forced out of the Company in which he shared membership with Mr. Allison Ayida; and
(ii) that having denied in his letter to the Appellant (Exhibit 6) that he uttered the words complained of to Ayida and/or Odofin, and/or at all-which denial was a lie-the defendant was stopped by his conduct from raising the issue of Limitation of time,in either case of which the plea of limitation of time would fail.Relying on the brief filed by Chief F.R.A. Williams, Mr. Oladipo Williams who argued the Respondent’s appeal, contended that the question of the Statute of Limitation was fundamental and went to the root. Once the Court agrees that the action is statute-barred, he said, no further issue in the appeal need be considered.
In respect of the other grounds of appeal, he said, the appellant was bound by his pleadings. The words complained of are contained in paragraph 7 of the statement of claim. He said that appellant had called two witnesses, namely, Ayida and Odofin, to prove that allegation. The trial Court had accepted the evidence of Ayida and rejected that of Odofin. The accepted evidence of Ayida was, he said, in conflict with the rejected evidence of Odofin. The acceptance of the evidence of Ayida was not appealed against by the Appellant. That being so the words of Ayida, which were accepted, were not defamatory of the plaintiff. Therefore, quite apart from the Statute of Limitations, there was no defamation proved.
Finally, on the arguments put forward, the Brief of the Respondent and quite rightly stated that it was not easy to follow the Appellant’s argument on the question of estoppel. He had said that the contents of Exhibit 6 where untrue and their untruth constituted a misconduct on the part of the Respondent, which misconduct the Respondent could not be heard to rely upon to raise the issue of limitation of action. As I understand this argument, what the Appellant is saying is that because the Respondent denied in Exhibit 6 uttering the alleged slanderous words – a denial which he says is untrue- the Respondent cannot be allowed to plead that the Plaintiff/Appellant instituted his action outside the period of time allowed by Statute. The reasoning is to me, obviously non-sequitur.
When asked by this Court if the defendant/Respondent was not permitted in law to plead or to argue in the alternative, Mr. Egbe, in some sort of apparent desperation, stated:
“A person who has a Judge as a defendant is in hell.”
-a statement which is rather unkind to the impeccable history of adjudication in this country-carrying as it does the unarticulated implication that a ‘defendant-Judge’ had the cause of justice tilted in his favour by reasoning of his being a Judge. Nothing is further from the truth.
Clearly, a defendant is by the Law of pleadings, including in a defamatory action, permitted to plead in the alternative. (See : Order 16 Rules 11, 19 and 2 of the High Court of Lagos (Civil Procedure) Rules Cap 52 Vol. III Laws of the Lagos State of Nigeria 1973).
In PHILIPPS v. PHILIPPS And Other (1878), 4 Q.B.D. 127 at 134 it was held that a plaintiff may rely upon several different rights
“alternatively, although they may be inconsistent”.
Equally, in BERDAN v. GREENWOOD (1878), Ex. D. 251 at 255, Thesiger, L.J.. held a defendant entitled to “raise by his defence without leave as many distinct and separate, and therefore inconsistent defenses, as he may think proper.”
A defence, it was said in RE MORGAN, (1887) 35 Ch.D 492 at 496, is not necessarily embarrassing merely because it contains inconsistent averments, provided they are not fictitious.
Returning to the Appellant’s first reason why his action was not barred by statute, namely, that damage resulting from the slander had not occurred until his membership of the Eagle Lighterage Companies ceased, the evidence on the issue, accepted by the trial judge, should be remembered. It was the evidence of Ayida. In evidence-in-chief, Ayida said:
“Plaintiff told me that after this publication that he felt honour bound to withdraw from any business transaction with his colleagues. He then withdrew from Trunen and Eagle Lighterage Companies in which we were both involved.”
Under cross-examination. Ayida concluded his evidence thus:
“We were in the process of promoting the Company and plaintiff was to take shares and be a Director. He resigned as a director and took no shares. The company was registered. What I want to say was that the Plaintiff resigned as a director of the Companies and informed the board that he could not continue as a shareholder.”
Clearly emerging from his evidence is the fact that it was the Appellant who withdrew from the Companies and not that the Companies threw the Appellant out following any slanderous allegation. His withdrawal from the Companies was not dictated by any utterance of the alleged slanderous words. His was a voluntary resignation. And so, his premise that time did not run until he suffered damage was ill-conceived.
But even so, Turburville and Another v. West Ham Corporation (1950) 2 K.B.D. 208 on which the Appellant heavily relied, did not propound the law which the Appellant has put forward. It has not stated that time, in a slander actionable per se, does not start ,to run until damage occurs to the plaintiff. Indeed, it could not in law say so because slander actionable per se does not require damage to be proved in order to ground the action. It is actionable without proof of special damage. In Turberville it was held, inter alia, that the plaintiffs’ cause of action did not accrue until they received notice of rejection of their claims on 25th February 1946, and therefore the time limit had not expired when the writs were issued on 2nd January 1947.
It was a case of some assistant school teachers and the adjustment of their salaries during the 2nd World War. The teachers put salary claims which their corporation-employer rejected. Time, it was held, would not commence in respect of their cause of action, consequent upon the rejection of their claims, until that rejection was communicated to them and not before. Turberville has no relevance to the present proceedings.
The Daley Main Collier Company v. Mitchell (1886) 11 A.C. 127 is a good example of a continuing injury in respect of which time will not run until the subsequent injury had occurred. But it again, has no bearing on the present case on appeal.
It follows that the two reasons given by the Appellant why time could not run against him, and his action could not be statute-barred, cannot apply and must be rejected. The action was clearly caught by section 10 of the Limitation law Cap. 70 Laws of Lagos State 1973 and, therefore, was statute-barred.
The appeal must therefore be dismissed, and is hereby dismissed, with costs to Respondent hereby assessed at N300.00.
KAZEEM, J.S.C.: I have had the privilege of reading the draft of the judgment just delivered by my learned brother Aniagolu, J.S.C. and I entirely agree that it has adequately dealt with the submissions made before the court in this matter. As a matter of fact, the Appellant in the course of his submissions said “I am willing to accept that the action is barred by statute in that the defamation was committed in March 1978′. Also when he was replying to the submissions made by learned counsel for the respondent Mr. Egbe (who appeared for himself) said “I have not said that the period of limitation should run from Exh. 6” (the reply letter dated 18th November, 1980, from the Respondent). Having regards to the above admissions by the Appellant himself and the findings of the two lower courts that the Appellant’s action was statute barred, I am satisfied that the appeal lacks merit and I will also dismiss it with N300.00 costs to the Respondent.
KARIBI WHYTE, J.S.C.: I have had the privilege of reading in draft form the judgment in this appeal of my learned brother, Aniagolu, J.S.C. I agree entirely with the reasoning and conclusions therein and that the appeal be dismissed. I too will dismiss this appeal for the same reasons.
I hereby therefore dismiss this appeal against the judgment of the High Court, dismissing his action against the respondent/Defendant, claiming N500,000 (Five hundred thousand naira only) being general and special damages suffered as a result of slander of the Appellant/ Plaintiff by the Defendant/Respondent.
Appellant shall pay to the Respondent costs of this appeal assessed at N300.