Hon. Justice James Omo-agege (Rtd) V. John Oghojafor & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: (Delivering the Leading Judgment)

This is an appeal against the decision of the Delta State High Court, Asaba Division, delivered on 20/10/2004 in Suit No.A/235/2002.

In an amended statement of claim deemed properly filed and served on 30th July, 2003, the Appellant, as the Plaintiff claimed for the following reliefs: –

1a) The sum of N100,000,000.00 (one Hundred Million Naira) on the footing of aggravated and exemplary damages for libel contained in pages 32 and 33 of the Insider Weekly No. 39 dated 30th September, 2002;

b) A retraction of the said publication accompanied with an unconditional apology in 3 subsequent publications of the 3rd Defendant’s Weekly Magazine; and

c) An injunction to restrain the defendant and each of them by themselves or by their servants, agents or otherwise howsoever, from the publication of the said words or any of them or similar words.

In a statement of defence dated 14th February, 2003, earlier on filed in response to the main statement of claim, the Respondents, as the defendants, denied the claims of the Appellant and called on the lower Court to dismiss same in their entirety.

Upon this background the case went to trial. At the trial the Appellant testified as PWI and was duly cross-examined by learned Counsel to the respondent. In the course of his testimony a number of documents were tendered and admitted in evidence. Out of these documents, Exhibit E was admitted as the alleged libelous publication.

It was at this stage that learned Counsel closed the case for the Appellant. Also at that stage, learned Counsel to the Respondents contemplated calling witnesses in defence of the action. On a further thought learned Counsel abandoned the idea of calling witnesses. Thereafter respective learned Counsel took turns to address the Court. After these addresses, the matter was adjourned for judgment.

In its judgment, the lower Court along the line dismissed the claim of the Appellant when it held thus: –

“…the plaintiff has not established publication. In the result the suit ought to be and is hereby dismissed at this stage.” (See page 98 lines 25 – 28 of record of appeal).

In what appears to be an ex abundante cautela approach, and appropriately so, the learned trial Judge went further to say: –

“In the event that the Court is wrong in dismissing this suit on the ground of publication was not proved, I shall proceed to deal with other aspects of the case.” (See page 98 lines 29 – 32 of the record of appeal).

At the end of this whole exercise, during which the learned trial Judge did an impressive and elaborate review of the facts and circumstances of this matter the one hand and the law and decided cases on the subject of libel on the other. Being convinced and satisfied the lower Court found the Respondents liable to the Appellant and went further to award the sum of N300,000.00 as aggravated and exemplary damages to the Appellant against all the Respondents.