Gregory Chidi Ojukwu V. J.S.O. Nnoruka (1999)

LawGlobal-Hub Lead Judgment Report

UBAEZONU, J.C.A.

The respondent sued the appellant at the High Court of Anambra State in Onitsha Judicial Division claiming N10,000,000 (Ten Million Naira) as damages for slander. At the conclusion of the hearing the learned trial Judge, Olike, J., found for the respondent and awarded him N1.2 Million as damages and N10,000 (Ten Thousand Naira) as costs. Against that judgment, the appellant has appealed to this court. The appellant has also filed his brief of argument and therein formulated three issues for determination thus:
“1. Did the Defendant receive a fair hearing in all the circumstances of this case in accordance with section 33(1) of the 1979 Constitution of the Federal Republic of Nigeria and the old principle of audi alteram partem (Ground 1 of the Original grounds of appeal at p.28 of the Records).
2. Did the trial Judge comply with the principles in Mogaji v. Odofin in his evaluation of the evidence before the Court All (sic) be it the evidence of P.W.1, PW2, DW1 and DW2, and did he come to the right conclusion upon the said evidence.
If not, was there a miscarriage of justice? (Ground 3 of the Original grounds of appeal at page 28 of the records and grounds 4 – 6 of the additional grounds of appeal at pp 38-40).
3. Was the award of N1.2m general damages and costs of N10,000.00 a reasonable award (Ground 2 of the original grounds of appeal at p.28 of the records).”

Arguing his 1st issue, learned counsel for the appellant contends that his client did not receive a fair hearing. He refers to a number of decided cases on fair hearing viz:
“1. Folbod Invest Ltd. v. Alpha Merchant Bank Ltd. (1996) 10 NWLR (Pt.478) 344 at 357
2. Iwuoha v. Okoroike (1996) 2 NWLR (Pt.429) 231 at 246.
3. Olumesan v. Ogundepo (1996) 2 NWLR (Pt.433) 628 at 653.
4. Obera v. Okpe (1996) 9 NWLR (Pt.473) 401 at 439.”
Counsel submits that the facts of the cased o not show that the appellant was not serious in defending the case. He argues that the statement of the learned trial Judge that he was not impressed by the medical certificates sent to the court by the appellant was unfortunate in that the Judge did not state why he was not impressed by the certificates. Learned counsel made a veiled and subtle charge of bias against the Judge. He concedes that justice delayed is justice denied but says that the courts ought to lean against hasty trials and judgments.

On appellant’s issue No.2, counsel argues that the learned trial Judge did not properly evaluate the evidence before him. He refers to Sol Fond Ltd. v. Elerewe (1996) 8 NWLR (Pt.465) 245 at 253. He describes P.W.2 as a tainted witness who was merely out to protect the respondent. He refers to Alani v. State ( 1993) 7 NWLR (Pt.303) 112 at 123, 126 and 127. Counsel also referred to a number of cases on evaluation of evidence viz:
I. Akpan v. Otong (1996) 10 NWLR (Pt.476) 108 at 124 and 131
2. Whyte v. Jack (1996) 2 NWLR (Pt.431) 407 at 441 – 444
3. Okereke v. Ejiofor(1996) 3 NWLR (Pt.434) 90 at 107 – 108
4. Hill Station Hotel Ltd. v. Adeyi (1996) 4 NWLR (Pt.442) 294 at 311
The 3rd and last issue of the appellant is on the quantum of damages and costs awarded by the trial court. Learned counsel rightly stated the law on the attitude of the appellate court towards damages and costs when he said that an appellate court will not interfere with the award of damages made by the trial court unless the trial court acted upon some wrong principles of law in making the award or the amount awarded was so extravagant or so small as to make it an entirely erroneous estimate of damages. He refers to Incar (Nig.) Plc v. Uralo Cen. Ent. Ltd. (1998) 13 NWLR (Pt.582) 346 at 363 – 5. He submits that the award was based on:
(i) Wrong principles of law
(ii) Poor evaluation of evidence
(iii) Punitive in nature whereas circumstances are such as to obviate any such punitive damages
(iv) The damages and costs did not flow from the facts of the case.
Counsel refers to Ugo v. Okafor (1996) 3 NWLR (Pt.438) 542 at 569 on damages in libel cases. It is submitted that there is no nexus between the ostracism and the letters complained of.

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On being served with the respondent’s brief, the appellant filed a reply brief in which it is contended that the medical certificates were shown to the court during the hearing of the case. Counsel concedes that although the medical certificates were not tendered as exhibits in court, the court should nevertheless look at them as they form part of the record of the court. He referred to Babatunde v. Olatunji (1994) 4 NWLR (Pt.339) 488; Aghahomoro v. Eduyegbe (1999) 3 NWLR (Pt.594) 170 at 182. The rest of the submissions of counsel in the reply brief is largely a repetition of the submissions he had made in his brief.
The respondent also filed a brief in which he formulated three issues for determination viz.
“a. Whether a party (such as the appellant in the instant case) who had been given ample opportunity to present his case before the trial court but who chose to rely on pleadings and evidence given by witnesses called on his behalf and neglected to appear and testify in his own behalf can seek to affect the judgment of the court with the virus of non-compliance with the constitutional dictate of fair hearing.
b. Whether the plea of justification is available to a defendant when the defamatory words are false in all material particulars.
c. The Respondent accepts the issues for determination numbered as 2 and 3 in the Appellants Brief of Argument.”
Arguing his 1st issue, learned counsel for the respondent submits that the principle of fair hearing is entrenched in Section 33(1) of the 1979 Constitution of Nigeria and has been pronounced upon by our courts – see Nwokoro v. Onuma (1990) 3 NWLR(Pt.136) 22 at 31; Iwuoha v. Okoroike (1996) 2 NWLR (Pt.429) 231 at 248.

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It is however submitted that in the peculiar circumstances of this case the important point is whether the trial court afforded the appellant the opportunity to present his case before the Court. Counsel traced the history of the case which shows that the appellant was consistently absent from the court to continue his case. Counsel submits that the lower court was right in holding that the medical certificates were irrelevant to the issue before the court and that the Judge was not impressed by them. He submits that a ruling was given by the court on the medical certificates on 23/5/97 but there was no appeal against the ruling. It is wrong to re-open the issues relating to the medical certificates in this appeal as it is no longer a life issue. Counsel refers to:
1. Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417.
2. Oluma v. Onyuna (1996) 4 NWLR (Pt.443) 449.
3. Okudo v. Inspector-General of Police & Ors. (1998) 1 NWLR (Pt.533) 335 at 341.

It is further submitted that a party can waive his right to fair hearing. Counsel refers to Governor of Oyo State v. Folayan (1995) 8 NWLR (Pt.413) 292. See also Kaduna Textiles Ltd. v. Umar (1994) 1 NWLR (Pt.319) 143 at 159; Ajaokuta Steel Co. Ltd. v. O. O. Biosah & Co. Nig. Ltd. (1997) 11 NWLR (Pt.527) 145 at 157.

On his 2nd issue, it is submitted that the lower court properly considered and evaluated the evidence in support of the defence of justification put up by the respondent and concluded by disbelieving the appellant’s story that the respondent uttered the words contained in the defamatory letters. Counsel submits that such a finding shall not be disturbed by an appellate court – refers to Okafor v. Idigo (1984) 1 S.C.N.L.R. 481; Ogbeche v. Onochie (1988) 1 NWLR (Pt.70) 370 at 391. See also Dumbo v. Idugboe (1983) 1 SCNLR 29 at 51; A.C.B. Ltd. v. Apugo (1995) 6 NWLR (Pt.399) 65 at 86; Alade v. Alemuloke (1988) 1 NWLR (Pt.69) 207 at 215 – 225 on proof of justification in libel.

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In his 3rd issue, the respondent adopts the appellant’s issues Nos.2 and 3. The appellant’s issue No.2 deals with evaluation of evidence which has been dealt with in this judgment. Counsel further submits that after considering the evidence of D.W.2 and D.W.1., the court preferred and believed the evidence of P.W.2 as against that of D.W.1. These were the people who were present at the scene of the incident that gave rise to the writing of the letters the contents of which are complained of in this suit.

On the issue of damages and costs awarded by the lower court, learned counsel drew the attention of the court to the persistence of the appellant in repeating the slander by the plea of justification. He refers to Gatley on Libel & Slander 7th Edition at page 507 paragraph 1240; Obakpolor v. Oyefeso (1997) 6 NWLR (Pt.508) 256 at 272. He submits that an appellate court does not ordinarily interfere with the award of damages made by the lower court – refers to Odogu v. Attorney-General of The Federation (1996) 6 NWLR (Pt.456) 508 at 523. See also
1. Ijebu-Ode Local Government & Co. Ltd. (1991) 71 NWLR (Pt. 166) 1 at 19 & 27
2. Onwu & Ors v. Nka and 7 Ors (1996) 7 NWLR (Pt.458) 1 at 19 & 27.
3. Union Bank of Nigeria Ltd. v. Odusote Book Stores Ltd. (1995) 9 NWLR (Pt.421) 558
4. Shell Petroleum Development Co. Nig. Ltd. v. Tiebo VII & Ors (1996) 4 NWLR (Pt.445) 657 at 688.
Counsel stated the factors which the court will normally take into account and submits that in the instant case the lower court was right in awarding the damages and costs it awarded. He says that no reason has been given why this court should interfere with the award made by the lower court. In court both counsel adopted their respective briefs. Mr. Amene, learned counsel for the appellant said that his client fell ill and was unable to conclude his defence. He urges the court to allow the appeal and send back the case for rehearing. Mr. Ikwueto for the respondent said that the medical certificates were not evidence before the court. He stated that the medical certificates were attached to a motion for a stay of execution after the case had been completed. Some medical certificates were shown to the court during the hearing of the case and the court gave its ruling then on 23/5/97. There is no appeal against the ruling. He urges the court to dismiss the appeal.

The first and very important issue which I shall consider in this appeal is the issue of fair hearing. This issue is raised by both sides to the appeal. The issue is-was the appellant denied fair hearing by the lower court? To answer this question, I shall review the proceedings in the lower court which led to the court closing the appellant’s case for him on 18/7/97 and adjourning for judgment on 26/9/97.