Honourable S.o. Ajileye V Honourable E.O. Fakayode & Anor (1990)

LawGlobal-Hub Lead Judgment Report

SULU-GAMBARI, J.C.A.

In this case, the plaintiff/appellant had sued the 1st defendant (Hon. Justice E.O. Fakayode, Rtd.) and the New Nigerian Newspapers Limited as the 2nd defendant in the High Court of Justice, holden at Ibadan, before Hon. Justice Akin. Apara for libel contained in an article in the New Nigerian Newspaper published by the 2nd defendant in the following terms:

“The former Chief Judge said that he first heard of the case in 1982 at a time he was about to determine the appointment of some new Judges and discovered one of those to be considered was involved and as such he raised objection. There Mr. Justice Fakayode further told the New Nigerian that he discovered in the file that the D.P.P., Chief Ajileye, whose name was among those to be screened for the appointments was the very officer who signed the papers of advice to the Governor in the case.

He added that Chief Ajileye admitted that as D.P.P. he did not know if an appellant has such right. He explained that as a result he did not approve the appointment of Chief Ajileye as a Judge but Chief Bola Ige as the then Governor of Oyo State however overruled him and appointed Chief Ajileye as a Judge. By the said words the defendants meant and were understood to mean that: (i) The plaintiff was an incompetent Lawyer. (ii) The plaintiff had given wrong advice to the Governor of Oyo State with the result that persons convicted of murder but who had appealed had been wrongfully executed before their appeal was determined.

(iii) The plaintiff was not competent as D.P.P. of Oyo State. (iv) The plaintiff was not a fit and proper person to be appointed a High Court Judge.’ The plaintiff then claimed for N2,000,000.00K against the defendants jointly and severally as damages for the libel. The plaintiff is Hon. Justice S.O. Ajileye, a retired Judge of the High Court of Oyo State.

He later filed p and served a statement of claim on the defendants. The 1st defendant entered appearance for himself while the 2nd defendant who was represented by a counsel also entered a conditional appearance. On the 14th day of December, 1988, the plaintiff applied under Order 6 Rule l(6)(b) of the High Court Civil Procedure Rules of Oyo State seeking to set aside the conditional appearance made by the 2nd defendant and to enter judgment against it for failing to enter an appearance.

The application was fixed for 23rd of January, 1989. On the 23rd of January, 1989, the plaintiff was present and so was his counsel but none of the defendants was  present nor represented in court. At that stage, the learned trial Judge raised an issue suo motu as contained in his observation which reads as follows:- ‘There is no doubt that under the law, this Court has jurisdiction to adjudicate over this matter. However, considering the special circumstances of this case, particularly the past positions held in this judiciary by the plaintiff and the 1st defendant, and the very nature of the case itself, will it be in the interest of justice for this court, or any other court for that matter in the Judiciary of Oyo State to adjudicate over this matter? That is the question posed. Counsel will address the court on this question.’

The case was adjourned till 31st of January, 1989 for address by counsel for all the parties. On the adjourned date, a letter written by counsel for the plaintiff was produced through the Court Registrar suggesting that the court should refer the matter to the Chief Judge for re-assignment to another Judge. The learned trial Judge directed counsel from the chambers of Chief G.O.K. Ajayi, S.A.N., from where the letter emanated to read out the said letter in court.

The Judge then noted the absence of the 1st defendant while ascertaining that the 2nd defendant was represented by a counsel, Mr. Odutola. Mr. Odutola, learned counsel for the 2nd respondent, submitted that he saw no reason why the court should not continue to adjudicate over the matter and pointed out that the whole matter rested on the discretion of the court.

The court then embarked upon a consideration of the question the learned trial Judge posed earlier on as to whether he as the trial Judge could take the matter at all. He stated as follows:- ‘As the required assistance from the bar is not forth-coming, the court will have to fall back on its own resources.’ At the end, the learned trial Judge came to the following conclusion:-

“The long and short of all this is that in law I have jurisdiction to adjudicate over this matter, but considering the past positions held in this judiciary by the plaintiff and the 1st defendant and particulary the valedictory speech made about the plaintiff by the Hon. Chief Judge, and the fact that I must consider the equal rights to justice of the parties before me, will the ends of justice be served if I adjudicate over this matter. I therefore hold that in the interest of justice, I should not adjudicate over this matter. That is so far as the positions held by the two parties in this case affect this case.

If neither I nor any other court in this State Judiciary will not (sic) take this matter because of the reasons I have adduced, will the door of justice be closed against the plaintiff to seek redress in the court as he has every right to do? The case he has brought is one of libel. The 2nd defendant is the New Nigerian Newspaper, a newspaper which has a very wide circulation in Nigeria.

Anywhere this newspaper, which contained the publication complained of, has been read in the country would be proper venue and the High Court in that State will have jurisdiction to entertain this suit. So, the door to justice in this instance is not being closed against the plaintiff with a dreadful finality. He can take his action to any other State in Nigeria where the New Nigerian Newspaper carrying the publication in question has been read, so that the litigants can have the benefit of a fresh mind applied to the matter.

On all the foregoing, the case of the plaintiff is struck out so that he can institute a fresh action in any other State of the Federation, if he so desires.’ Learned counsel for the appellant filed a brief of argument. Learned counsel for the 2nd respondent also filed a brief of argument. No brief was filed for the 1st respondent. At the hearing of the appeal before us, the 1st respondent was conspicuously absent and no counsel represented him. In short, he did not contest this appeal.