Joab U. Ezomo V. George B. L. Oyakhire (1985)

LawGlobal-Hub Lead Judgment Report

N. ANIAGOLU, J.S.C. 

The proceedings in a case for slander, giving rise to this appeal, originated in the High Court of the Auchi Judicial Division of Bendel State, holden at Auchi, where the respondent; a traditional Chief in Okpokhumi-Emai in Owan Local Government Area, sued the appellant, who was at the material time a Senior State Counsel in the Ministry of Justice, Enugu, Anambra State, claiming N50,000.00 as general damages.

The case was heard by MOJE BARE, J., upon pleadings which were ordered and filed. At the conclusion of trial, judgment was entered for the plaintiff for a sum of N2,000.00 (Two thousand Naira) general damages and N200.00 (Two hundred Naira) costs.

From this judgment, the appellant appealed to the Court of Appeal, holden at Benin City, on diverse grounds of both law and facts and at the conclusion thereof, that Court dismissed the appeal as lacking in merit.

The appellant has now appealed to this Court against the judgment of the Court of Appeal and filed ten grounds of appeal on law, facts and mixed law and facts. He also filed a Notice of Motion seeking leave to adduce further evidence before this Court but on better reflection, withdrew the motion which was dismissed with costs.

Preliminary objection was raised by the respondent, by motion, under Order 7 Rule 14 of the Supreme Court Rules, 1977, against the appeal being heard at all, on the ground, as contended by Chief Eruaga, learned Counsel, that the appeal was not competent by reason of the failure of the appellant to obtain leave either of the Court of Appeal or of this Court before filing his appeal. When, however, it was pointed out to Mr. Eruaga that the appellant was entitled as of right to file an appeal on law alone, he conceded and restricted his objection to the grounds of appeal dealing with facts or with mixed law and facts pursuant to Section 213(3) of the Constitution of the Federal Republic of Nigeria, 1979.

The appellant admitted that he neither sought for, nor obtained the leave of Court. Accordingly, grounds 5, 7, 8, 9 and 10 which were on facts or on mixed law and facts were struck out. The appeal was thus restricted to grounds of Law alone in grounds 1, 2, 3, 4 and 6.

In arguing the appeal the appellant took the grounds in this order, namely, 4; 6;1; 2 and 3 argued together. I shall follow that order in dealing with those grounds.

Grounds 4 complains that the evidence of P.W. 2 Wilson Eguaje was inadmissible because his name was not pleaded. This is how the ground, with its particulars was worded:

“4. The learned Justices of the Federal Court of Appeal erred in law when they held that the learned trial judge was right in dismissing the contention that the evidence of P.W.2 Wilson Eguaje whose name was not pleaded was inadmissible.

PARTICULARS

1. The case of Barham v. Hunringfield (1913) KB 193 cited by the learned trial judge is inapplicable to the respondent’s case and does not support it.
2. Save in exceptional circumstances a plaintiff in a slander action will not be allowed to prove at the trial publication to any person who is not named or identified in the statement of claim: Bradbury v. Cooper (1884) 12 QB. 94.
3. Under Order 13 Rule 5 of the High Court Law of Bendel State, every pleading shall contain a statement of all material facts on which the party pleading relies. The respondent does not plead in his statement of claim that the alleged words were spoken to persons present who were unknown to him at the time of commencing the action. Therefore he cannot call a witness whose name is not specified to prove the alleged slander.”

Appellant, on this ground, argued that the plaintiff was obligated by accepted rules of pleadings and in particular Order 13 Rule 5 of the Bendel State High Court (Civil Procedure) Rules (hereinafter simply referred to as the Bendel High Court Rules) to plead all material facts and these would include the date of the alleged slander; the person or persons to whom the slander was uttered; and those words complained of which were published. The persons mentioned in paragraph 5 of the amended statement of claim to whom the slander was alleged to have been published, he pointed out were:

(i) Corporal Alex Ifijeh

(ii) Corporal S. Igbinosa