His Excellency, Mr. Ayo Fayose V. Independent Communications Network & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A (Delivering the Leading Judgment)

On the 19th March, 2009, the High court of Justice, Ado-Ekiti presided over by A.S. Daramora, J., dismissed the action of the appellant who was the plaintiff in the suit No: HAD/81/2004. The plaintiff in that action had claimed the sum of one Billion Naira (N1bn) as damages against the respondents, for libel published of him and contained in The News Magazine, Vol .23, No.18 Edition of 8th November, 2004.

The caption in the said magazine was “My brother is wild and cruel – The shocking Testimony of Governor Fayose’s sister.” one Peter Morakinyo Ogele also, in the said publication, had addressed a press conference wherein he stated in a thereat, that the appellant had wanted to kill him; which precipitated the action against the respondents.

The parties called witnesses at the trial and at the end of which, written addresses were filed and exchanged between them. The trial court, in its judgment found for the respondents and dismissed the claim.

This appeal is sequel to the dismissal of the plaintiff’s action.

The appeal is anchored on six grounds. The appellant, in prosecuting the appeal filed his brief of argument dated 16th September, 2009 on 26th September, 2009. In it, the appellant identified three issues for determination as follows:

“1. whether the Honourable trial Judge was right in relying on exhibit “C” and “G” and also relying on the events that happened after the libelous Publications in dismissing the Plaintiff’s claim.

2. whether there are admissible evidence on record for the defence of Justification found in favour of the respondents by the Honourable trial court.
3. Whether a judge can Substitute his personal feelings or knowledge of a litigant for facts adduced in evidence in arriving at a decision in his judgment.”

The respondents, filed their briefs of argument dated 14th March, 2011, on the same date and on the 21st June, 2011 with the leave of this court, the same was deemed as having been properly filed and served. The respondents distilled four issues for determination in their brief of argument, to wit:

“1. WHETHER the learned trial judge was night when he said that there was no evidence that the Appellant, “was shunned, hated, despised and ridiculed by right thinking people on the basis of the alleged libel by the Defendants,” (Ground IV).

2. WHETHER there was a basis for the learned trial judge to have held that the evidence of the Appellant that “chicken and eggs from the poultry were on sale and also being exported outside country were an obvious lie”. (Ground VI).
3. WHETHER the respondents were able to justify the alleged libelous publication complained of by the Appellants (Grounds V).
4. WHETHER the learned trial judge was right relying on Exhibits “C” and “G”. (Grounds I, II, III).”

The appellant, on receipt of the respondents’ briefs of argument, filed a Reply brief of argument dated 5th July, 2011; on the same date.

Learned counsel to the respective parties, at the hearing of the appeal on 20th February, 2012, each adopted their briefs of argument, above mentioned.

Mr. Owoseni Ajayi, learned counsel to the appellant, arguing Issue No. 1, submitted that the issue for the determination of the learned trial judge was predicated on a libelous publication at the instance of the respondents on 8th November, 2004 and the appellant led evidence to that effect.

Learned counsel, however submitted, that the respondents tendered in evidence a Newspaper Publication dated 13th March, 2006 which contained a report of the State Security Services (SSS) and the same was received into evidence as Exhibit “C”.

He contended that the said Exhibit “C” is of doubtful origin since no staff of the State Security Services (SSS) who were said to have made it, was not called as a witness and that the learned trial judge heavily relied on Exhibit “C” to dismiss the appellant’s claim. Furthermore, Mr. Ajayi submitted that the allegation contained in Exhibit “C” being criminal in nature, must be proved beyond reasonable doubt and must be clear and unequivocal. He referred to SPDC (Nig.) Ltd. Vs. Olanrewaju (2003) FWLR (pt.540) 1640 at 1663; Aderounmu vs Olowu (2000) 4 NWLR (pt.652) 253 at p.364; Garuba vs K.I.C.I.D (2005) 5 NWLR (Pt.917) 160 at P.176.