Mrs. Matilda Aderonke Dairo V Union Bank Of Nigeria Plc & Anor (2007)

LAWGLOBAL HUB Lead Judgment Report

I. T. MUHAMMAD, J.S.C

The plaintiff at the Lagos State High Court of Justice holden at Ikeja within the Ikeja Judicial Division, took a writ of summons against the defendant. She indorsed the following claim:-

“Plaintiff claim is for N25 million damages for the libelous publication pasted by the second defendant on the plaintiff’s one story building of No.12, Adegbite Street, Iju-Ajuwon, Agege.”

Background facts giving rise to the above claim as contained in the printed record of appeal show that the plaintiff is a banker of repute with the Nigerian Arab Bank Ltd. holding the post of an Assistant Manager in the bank. She is the owner of a property known and described as No. 12, Adegbite Street, Iju-Ajuwon, Agege in the Ikeja Local Government Area of Lagos State. The plaintiff claimed that on or about the 10th of January, 1981, the 1st defendant caused an auction notice to be pasted on her one storey building at No. 12, Adegbite Street, Iju-Ajuwon, Agege. The plaintiff never had any transaction with the 1st defendant or authorized any person to mortgage the property for any consideration. She claimed that many people went to her house to inquire about her indebtedness to the 1st defendant. She was as a result, subjected to embarrassment, queries and humiliation by her employers at the Nigerian Arab Bank Ltd.

On enquiring from the Land Registry, Abeokuta, Ogun State, it was discovered that the officials of the 1st defendant at its Oni-Panu branch executed a deed of mortgage on the property for one of their customers, Alhaji Mojeed Alepo Bakare from whom the plaintiff bought the land upon which the one storey building at No. 12, Adegbite Street, Iju-Ajuwon, Agege was erected without the said Alhaji Mojeed Alepo Bakare depositing any title documents. Action was commenced at the Ota High Court of Ogun State whereby the said mortgage deed dated 13th September. 1985, registered No. 13 at page 13. in vol. 276 of Land Registry. With the consent of the Govenor were quashed by order of certiorari in suit No. MT/7/91 – Matilda Aderonke Dairo v. Military Governor of Ogun State & Ors. (5/3/92).

The plaintiff maintained that by pasting the said auction notice on her property that portrayed her in bad faith and unworthy of any credit. The plaintiff demanded, through her solicitor, an apology and compensation from the 1st defendant to which the latter remained adamant.

By reason of pasting the auction notice on the premises the plaintiff has been injured in her credit and reputation and has been brought into public scandal, odium and contempt. The plaintiff thus claimed against the defendants jointly and severally as per her writ of summons.

Meanwhile, a motion on notice was filed and moved before the trial court for an order striking out the suit on the ground that the trial court had no jurisdiction as the cause of action -libel- arose in Ogun State. After having a thorough examination of the writ of summons, the statement of claim and the affidavit evidence, the learned trial Judge ruled that he had no jurisdiction to try the case as the cause of action arose in Ogun State while he was presiding over a Lagos State High Court. He accordingly struck out the suit with costs in favour of the defendants.

Dissatisfied with the ruling of the trial court, the plaintiff/applicant filed her notice of appeal to the Court of Appeal. Three grounds of appeal were set out therein. The Court of Appeal dismissed the appeal. The appellant now comes to this court. She set out four grounds of appeal in the notice of appeal.

Briefs were filed and exchanged by the parties. The respondents filed a notice of preliminary objection whose arguments were incorporated in the respondent’s brief of argument.

Learned counsel for the appellant formulated one issue for the determination of this court. It reads as follows:-

“Whether the Court of Appeal was right in upholding the decision of the High Court”

Learned counsel for the respondents formulated two issues. They are as follows:-

(1) Whether the Court of Appeal was right when it held that the High Court of Lagos State has no jurisdiction in a libel suit in which the publication of the libelous document did not take place within the jurisdiction of the court.

(2) Whether in this libel action, the Court of Appeal was bound by the decision of the Supreme Court in the fatal accident’s case of Olayiwola Benson & Anor: v. Joseph Oladipupo Ashiru (1967) 1 All N.L.R. 184 which was stated to be an obiter dictum.”

Permit me my Lords to deal with the notice of the preliminary objection raised by the respondents first. The notice of the preliminary objection was dated 22nd April, 2003 but filed on 13/10/03 (a period of almost six months between the date of making and the date of filing in court). It reads:-

Take notice that the respondents will raise by way of preliminary objection in its brief of argument that the issue raised by the appellant did not flow from the grounds of appeal in the notice of appeal and furthermore that the grounds of appeal are grounds of fact or at best grounds of mixed law and fact. AND for such order or other order as this Honourable Court may deem fit to make in the circumstances.”

Four grounds upon which the preliminary objection was based are as follow:-

1. The only issue raised by the appellant did not flow from the grounds of appeal in the notice of appeal filed by the appellant at pages 103 to 104 of the record of appeal.
2. The grounds of appeal filed by the appellant are grounds of facts or at best mixed law and fact and the leave of either the lower court or this Honourable Court was not sought before the notice of appeal was filed.
3. By virtue of the provisions of section 233(2) of the Constitution of the Federal Republic of Nigeria, 1999 an appellant can only appeal as of right to the Supreme Court if the grounds of appeal involve questions of law alone.
4. It is only after leave had been obtained under section 233(3) of the said Constitution can grounds of appeal involving questions of fact or mixed law and fact be competent before the Supreme Court.”

In his brief of argument, learned counsel for the respondents classified his preliminary objection into two: (a) that all the grounds of appeal were premised on grounds of fact or at best grounds of mixed law and fact and that by the provision of section 233(3) of the Constitution an appellant can have a right to appeal only with the leave of either the Court of Appeal or this court. That as leave was never sought or obtained, this court is urged to strike out the appeal. Learned counsel cited and relied on several cases including, inter alia, Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484 at 491; Godwin v. C.A.C. (1998) 14 NWLR (Pt. 584) 162. (b) that the only issue for determination raised by the appellant did not seem to flow from the three grounds of appeal filed and more so when the same is read in conjunction with the statement of facts of the appellant at page 2 paragraph 0/4 of the appellant’s brief of argument especially the point that the learned trial Judge did embark on a voyage of discovery. This point, the learned counsel argued, was not placed before the learned trial Judge. It thus became a fresh issue which was never canvassed before the learned trial Judge. That issue, learned counsel argued further, never formed any ground in the grounds of appeal and no leave of this court was obtained before canvassing arguments on the point. Learned counsel urged this court to discountenance the issue and that the appeal should be dismissed. Learned counsel cited the case of Oje v. Babalola (1991) 4 NWLR (Pt. 185) 267 at 280 paras. A-B in support of his arguments.

On the date this appeal was slated for hearing, the appellant and her counsel were not in court. They did not file a reply brief in answer to the notice of preliminary objection filed by the respondents. Learned counsel for the respondents argued that the implication of appellant not filing a reply to the notice of preliminary objection is that she had nothing to answer.

Starting from our own court’s rules, Order 6 rule 5(3) stipulates as follows:-

“The appellant may also file in the court and serve on the respondent a reply brief within four weeks after service of the brief of the respondent on him but, except for good and sufficient cause shown, a reply brief shall be filed and served at least three days before the date set down for the hearing of the appeal.”

Although the Supreme Court Rules as cited above have not stated the aim, role or purpose of a reply brief I think ‘the function, aim, role or purpose of a reply brief is to answer or deal with any new points arising from the respondent’s brief. Nnaemeka-Agu. JSC; in the case of Okpala and another v. Ibeme and Others (1989) 2 NWLR (Pt. 102) 208,220 made the same observation and he said:

“What is provided for is a reply brief, where necessary … Even so, where it is necessary, it should be limited to … any new points arising from the respondent’s brief.” It is interesting to note what Kendall Griffith, a lawyer and past President of the Appellate Lawyers Association of Illinois Bar, said on reply brief in his aJ1icie titled “Effective Brief Writing”, contained in a Journal called ‘The Forum” (1980 – 81) Vol. 16 at page 469 that: “A reply brief if filed at all should be short and hard hitting. It should answer any matter raised for the first time on the appellee’s brief if the appellee has completely missed the point or has confused a legitimate point a reply is appropriate, Clarification should be succinct and brisk.”

Although by Order 6 rule 5 of this court’s rules, it is not mandatory to file a reply brief where a respondent’s brief raises issues or points of law not covered in the appellant’s brief, an appellant ought to file a reply brief. See: Popoola and Ors. v. Adeyemo and Anor: (1992) 8 NWLR (Pt. 257) 1; Shzwibu v. Maihodu (1993) 3 NWLR (Pt. 284) 748, Chukwuogor v. Attorney-General, Cross River State (1998) 1 NWLR (Pt. 534) 375. I agree entirely with the learned counsel for the respondent that where an appellant fails to file a reply brief where it is necessary for him to do so, as in this appeal, he will be deemed to have conceded all the new points or issues arising from the respondent’s brief. See: Okoye & Ors. v. Nigerian Construction & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501 at 516 where this court per Akpata, JSC held: “The appellant’s completely ignored the relevance of Order 29 and its effect in the entire proceedings in the trial court. No reply brief was filed to meet the contention of the defendant/respondent on the issue. I am in agreement with the Court of Appeal that the appellants are deemed to have conceded that Order 29 rightly took care of the plaintiffs/appellants suit.” See further: Popoola & Ors. v. Adeyemo & Anor: (supra); Ayalogu v. Agu (1998) 1 NWLR (Pt. 532) 129: Shuaibu v. Maihoda (supra): Ogidi v. Egba (1999) 10 NWLR (Pt. 621) 42. It is a practice long established that where a respondent raises issues or points of law not covered by the appellant’s brief, the appellant is under a reciprocal duty to file a reply brief to answer such issues or points. It helps to reduce the time the appellant may take in replying to such issues or points during oral argument at the hearing of the appeal.

Thus, where an appellant fails to file a reply to a point of law raised in the respondent’s brief and merely adopts and relies on his brief of argument at the hearing of the appeal without an oral reply it may amount to a concession of the points of law or issues raised. The situation in the present appeal is even worse; the appellant failed to file a reply brief to the notice of preliminary objection raised and duly argued in the respondents’ brief of argument and she failed also to put any appearance to put up any oral argument in answer to the preliminary objection raised. Now,the challenge posed to the grounds of appeal touches on the jurisdiction of this court. Jurisdiction is the life-wire of a court as no court can entertain a matter where it lacks jurisdiction. Issue of jurisdiction can be raised at anytime even on appeal to this court. Because of its decisive nature, jurisdiction cannot be conferred on or taken away from any court just because the parties have agreed or consented to do so. Although the non-filing of a reply brief by the appellant may amount to a concession to the points raised by the respondents in their notice of preliminary objection, arguments of which are contained in the respondent’s brief of argument, I think this court is still under a duty to consider the points of objection raised by the respondents as a challenge to the jurisdiction of this court. In doing so, I would like to have a cursory look at the criteria set out by a long list of decided cases on how to distinguish a ground of appeal based on law alone; on facts alone or on mixed law and facts. The following principles may serve as a guide:

i. Where the court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the respondent was based, such a ground of appeal is a ground of mixed law and fact, See: Maigoro v. Garba (1999) 10 NWLR (Pt. 624) 555. A ground of appeal which challenges the findings of fact made by the trial court or involves issue of law and fact is a ground of mixed law and fact. See: Maigoro v. Garba (supra). Where the evaluation of facts established by the trial court before the law in respect thereof is applied, is under attack or question, the ground of appeal is one of mixed law and facts; See: Maigoro v. Garba (supra).

IV. Where evaluation of evidence tendered at the trial is exclusively questioned, it is a ground of fact simpliciter. See: Ogbechie v. Onochie (supra).

V. Where it is alleged that the trial court or an appellate

court misunderstood the law or misapplied the law to the admitted or proved facts, such a ground of appeal is one of law simpliciter. See: Nwadike v. Ibekwe (supra).

VI. It is a ground of law if the adjudicating tribunal or court took into account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or, if, although in applying the correct criteria, it gave wrong weight to one or more of the relevant factors. See: 0 ‘Kelly v. Trusthouse Forte Plc (1983) 3 All E.R. 456 at P. 486; Nwadike v. Ibekwe (1987) 12 SC 14.

VII. Several issues that can be raised on legal interpretation

of deeds, documents, term of art, words or phrases, and inferences drawn there from are grounds of law. See: Ogbechie v. Onochie (supra) pp. 491-492.

VIII. It is a ground of law where the ground deals merely with a matter of inference even if it is limited to admitted or proved and accepted facts. See: Nwadike P. Ibekwe (supra).

IX. Where it is alleged that there was no evidence or no admissible evidence upon which a finding or decision was based, this is regarded as a ground of law, See: Ogbechie P. Onochie (supra) where, Eso, JSC, at page 491 citing with approval an article by C. T. Emery in Vol. 100 LQR held: “If the tribunal purports to find that a particular event occurred although it is seized of no admissible evidence that the event did in fact occur, it is a question of law.” It was the contention of learned counsel for the respondents that all the three grounds of appeal in the appellant’s notice of appeal dated 25th July, 2001 and filed on 19th September, 2001 are grounds of fact or at best grounds of mixed law and fact: I think I should quote hereunder, these grounds of appeal:

“(3) Grounds of appeal: (a) The learned trial Judges of the Court of Appeal erred in law by not following the decision of the Supreme Court in the case of Olayiwola Benson & Anor: v. Joseph Oladipupo Ashiru (1967) NMLR page 363 on the grounds that the decision therein was obiter.

Particulars

a) The decision in the case of Olayiwola Benson v. Oladipupo Ashiru (1967) NMLR page 363 ratio 2 is not obiter. The reporter of the (1967) 1 All NLR page 184 wrongly put the word obiter at the top of all the holdings of the court contrary to the contest of the judgment as contained on page 188 of the report.

b) The learned Judges of the Courts of Appeal erred in law by following the Supreme Courtdecisions in the cases of Egbue v. Araka (1988) 3 NWLR (Pt. 84) page 598 and Ezeugwa v. Adimorah (1993) 1 NWLR (Pt. 271) page 620 at 625.

Particulars

i) The operation of Order 1A rule 4 High Court of Lagos State (Civil Procedure) rules, 1972 and the decision of the Supreme Court in the case of Nneji v. Chukwu (1988) 3 NWLR (Pt. 81) page 184 on the bindingness of the role of each court on its operation were not raised and considered in the two cases.

c) The learned trial Judges of the Court of Appeal erred in law by not considering the applicability of the rules of common law of England on questions of Private International Law in the High Court of Lagos State as highlighted in the case of Olayiwola Benson v. Joseph Oladipopu Ashiru since the learned trial Judges of the Court of Appeal held that it did not come for decision in that case.

Particulars

The doctrine of stare decisis does not preclude a lower court from pronouncing on a point of law not yet decided by the superior court.

d) Other grounds of appeal are to be filed on the receipt of the proceedings of the Court of Appeal.”

I have had a careful examination of the above grounds of appeal. In ground one or (a) the appellant is complaining that the Justices of the court below refused to follow the decision of the Supreme Court in the case of Olayiwola Benson & Anor v. Joseph Oladipopu Ashiru (1967) NMLR page 363 on the ground that the decision therein was obiter. In the only particulars provided for the ground and indicated in another (a) the appellant stated that the said decision is not an obiter. This, in my view, will involve the question of whether the law applied in Benson’s case is applicable to the appeal on hand.

The complaint in this appeal is on refusal to apply some principles of law. The ground, in my view is a ground of law. The same principle of law applies to ground No.2 or (b) as it alleges that the Justices of the court below wrongly followed the Supreme Court decisions in the cases of Egbue v. Araka (1988) 3 NWLR (Pt. 84) page 598 and Ezeugwa v. Adimorah (1993) 1 NWLR (Pt. 271) 620 at 625. Thus, ground No. (b) is also a ground of law. Appellant’s ground No. (c) alleges that the learned Justices of the court below erred in law in not considering the applicability of the rules of common law of England on questions of Private International Law in the High Court of Lagos State as highlighted in Benson’s case (supra). In its particulars, it is stated that the doctrine of stare decisis does not preclude a lower court from pronouncing on a point of law not yet decided by the superior courts. This ground in my view is purely one of law. See generally: Ogbechie & Ors. v. Onochie & Ors. (1986) 1 NSCC 443 at 446; (1986) 2 WLR (Pt. 23) 484 at 491, Board of Customs and Excise v.Barau (1982) 10 SC 48 at page 137: Godwin v. C. A. C. (supra). The issue or distinguishing a ground of law from that of fact or that of mixed law and fact is indeed a thorny one. It tasks the mind of an appellate Judge. See: Ogbechi v. Onochie (supra); Nwadike & Ors. v. Ibekwe & Ors. (1987) 12 SC 14 at page 53: (1989) 4 NWLR (Pt. 67) 718. Although the decision on whether a ground of appeal raises a question law alone does not depend on the label an appellant may give to the ground in question, it is evident in this appeal that from all the grounds set out by the appellant. he was certainly raising grounds of law. especially when the totality of each of the grounds along with its particulars is taken together. This, exactly. is what this court did in the case of Ojemon & 3 Ors. v. His Highness William O. Momodu & 2 Ors. (1983) 3 SC 173. The settled principle of law on the validity of a notice of appeal is that when a ground of appeal involves a question of law, it alone can sustain that notice of appeal. Thus, by the provision of section 233(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999, such a ground of law confers right of appeal on an appellant without the necessity of seeking or obtaining leave from any court including this court or the court below. The first leg of the preliminary objection fails. On the second leg of the preliminary objection that the only issue formulated by the appellant did not arise from any of the grounds of appeal. I have already set out the grounds of appeal above. Let me now reproduce the issue formulated for the determination of this appeal. It reads as follows:

“Whether the Court of Appeal was right in upholding the decision of the High Court.”

It is the submission of learned counsel for the respondents that the issue being canvassed as regards the learned trial Judge embarking on a voyage of discovery and determining issues not placed before him is a fresh issue which was never canvassed in the lower court and which did not form any ground of the grounds of appeal filed by the appellant. Learned counsel urged this court to discontinuance the issue as it did not flow from the grounds of appeal.

What is the decision of the trial court On page 63 of the record of appeal, the learned trial Judge held as follows:

“After a thorough examination of “the writ of summons and the statement of claim, I rule that this court has no jurisdiction to try this case as the cause of action arose in Ogun State. The suit is accordingly struck out.” The court below dismissed the appeal and affirmed the trial court’s decision. I think. when a sole issue is formulated from several grounds of appeal, except those which are found to be incompetent, defective or academic, and the appellant did not isolate any ground to which that issue relates, the presumption is that, it relates to all the grounds. See: Olowosago v. Adebanjo (1988) 4 NWLR (Pt, 88) 275: Adamu v.lkharo (1988) 4 NWLR (Pt. 89) 474. It is thus, my humble view that the issue is a Live issue and competent. The primary concern of an appellant in formulating issues for the determination of his appeal is that such issues must stem from the grounds of appeal. Consideration of statement of facts giving rise to the matter on appeal is irrelevant and inconsequential at that stage. I find no merit in this leg of the objection and it too, fails.

Finally, the respondents’ preliminary objection lacks any merit. I accordingly overrule and dismiss it. In considering the appeal I shall limit myself to the issue formulated by the appellant. It reads as follows:

“Whether the Court of Appeal was right in upholding the decision of the High Court”

Making his submissions in the brief of arguments, learned counsel for the appellant stated that the Court of Appeal was wrong in upholding the decision of the trial court as the issue determined before the trial court was not placed before it. The trial court lacked jurisdiction to suo motu formulate issues and thereafter embark on a voyage of discovery to make findings on them. Learned counsel cited in support the case of Adeniran v. Alao (2001) 12 SC (Pt. 2) 59 at page 87; (2001) 18 NWLR (Pt. 745) 361. Secondly, the issue which came up before the Supreme Court’s decision in the case of Egbue v. Araka (1988) 3 NWLR (Pt. 84) 598 was based on the provision of Order 1A rule 2 of the Lagos State High Court Rules, 1972. Nowhere, it was argued further, in that decision, where the Supreme Court held that before the High Court of a State can have jurisdiction in the publication of a libelous article the publication must have taken place within the jurisdiction of the court as carried by ratio 6 of the report. That piece of statement was said by Mr. Kehinde Sofola (SAN) on pages 606-607 of the report. Learned counsel for the appellant made a short comparison between the provisions of Order 9 and Order 7 of the Lagos State High Court (Civil Procedure) Rules, 1972. He argued that the learned Justices of the court below were wrong to have relied on Order 9 rule (1)(f) of the Lagos State High Court Rules (supra) which he said did not specifically confer jurisdiction on the commencement of libel action on the place of publication of the libelous document. The learned counsel submitted further, that contrary to the decision of the Court of Appeal, the Supreme Court decision in Olayiwola Benson v. Oladipopo Ashiru (supra) on page 363 of the report, ratio 2 was an obiter as the reporter therein wrongly put the word obiter at the top of all the holdings of the court contrary to the contents of the judgment as contained on page 188 of the body of the report. Learned counsel argued that it was still open to the Court of Appeal Justices to make a pronouncement on the applicability of the rules of the common laws of England on question of Private International Law in the High Court of Lagos State as the Court of Appeal would not be caught by the doctrine of stare decisis. He referred to the case of 7-Up Bottling Co. Ltd. & Ors. v. Abiola & Sons (Nig.) Ltd. (1995) 3 NWLR (Pt. 383) 257 at pages 207-271. Learned counsel submitted that the Supreme Court decision in Olayiwola v. Ashiru (supra) is still good law as it has not been overruled subsequently by the same court and the Court of Appeal is bound by it. The appellant urges this court to set aside the decision of the Court of Appeal and order the trial court to hear the suit on its merits. On the main appeal, learned counsel for the respondents formulated two issues for determination. I already set out these issues earlier. Appellants lone issue has comprehensively taken care of these two issues. I shall consider them together in line with the appellant’s lone issue. Learned counsel referred this court to the motion on notice together with the supporting affidavit at pages 7 – 10 of the record of appeal for this court to see how unmeritorious the appeal is. He referred to paragraphs 5 – 10 of the supporting affidavit and some part of the trial court’s proceedings. Learned counsel submitted strongly that flowing from the oral submissions of learned counsel for the respondents, Mr. Adeneji and that of the appellant Mr. Dairo, the pith of the respondents prayer was that being a libel action, the High Court of Lagos State has no jurisdiction in the matter as the alleged libel arose in Ogun State. Learned counsel submitted that in the circumstances, the learned trial Judge was quite in order when she raised the question which the appellant had complained of her brief of argument and it was not a voyage of discovery, or formulating issues suo motu by the learned trial Judge as arguments on the issues were earlier canvassed by both counsel before the learned trial Judge raised such issues. Learned counsel urged us to reject the submission of the appellant that the learned trial Judge embarked on a voyage of discovery by suo motu formulating issues which were not canvassed before the court and that the lower court compounded the error in their judgment. If was argued for the respondents that the references to Order IA rule 4 of the High Court of Lagos State (Civil Procedure) Rules.

1972, which was applicable when the action was instituted at the court or first instance, the provisions of that rule were of no use or helpful to the appellant. Learned counsel for the respondents set out the rule in his brief in extenso. He set out also Order 7 rule 1(f) of the said Rules. Learned counsel argued that it is the Place a libel is published that the cause of action arose. He cited the cases of Ezomo v. Oyakhire (1985) 2 SC 260, (1985) 1 NWLR (Pt. 2) 195: Egbue v. Araka (1988) 3 NWLR (Pt. 84) 598. On the case of Benson v. Ashiru (supra) learned counsel submitted that the case had not been adopted in any other case by the Supreme Court to enable it acquire the force of a ratio decidendi and the same was not made per incuriam as stated in the said law Report (NLR), the statement of the Supreme Court was made obiter. The case of Benson v. Ashiru (supra) was in relation to fatal accident and not libel. On the applicability of the rules of common law of England on the question of Private International Law in the High Court of Lagos o State, this court is urged to ignore appellant’s submission as same was never raised as a ground of appeal and or part of issues for determination of the appeal before the lower court. Learned counsel for the respondents urged us to dismiss this appeal and uphold the judgment of the court below. I think the primary role of an appeal court is to hear and determine appeals that are brought before it. In its determination of an appeal, it may grant, refuse reliefs in an interlocutory application arising therein. It may allow or dismiss an appeal. It may make consequential orders as the circumstances of the appeal may warrant.Where the appeal court upholds or affirms the decision of the trial court or a court lower to it, it means that the appeal before it is dismissed. Where it allows the appeal, it means the decision of the trial court or the court lower to it is set aside. It may also make amendments on some decisions of the trial or lower court. In discharging its duties, the appeal court is always guided by the principles of justice. The main complaint against the lower court’s judgment is that it upheld the decision of the trial court when it was the trial court that formulated issues suo motu and arguments were not canvassed before it by the parties. I agree with the learned counsel for the appellant to the extent that the law is quite settled that where a court raises issues suo motu, the parties should be given equal opportunity to address the court on such issues. Failure to do so will ender the proceedings of that court. however well conducted, a nullity. See: Nteogwuile v. Otuo (2001) 16 NWLR (Pt. 738) 58: Adigun v. AG.Oyo State (1987) 1 NWLR (Pt. 53) 678. But is that what happened in this case It is clear from the record of appeal (pages 28 – 29) that there is a proceeding by the trial court in respect of a motion on notice filed by the defendants praying for an order striking out the suit for lack of jurisdiction. Learned counsel for the defendants/ applicants, Mr. Adeneji, moved the motion. Mr. Dairo for the plaintiff/respondent/appellant, responded. In his response

(submissions) he stated, inter alia;

“The publication we are complaining about was pasted in Ogun State but the publication emanated from the office of the auctioneer (the 2nd defendant) in Lagos as reflected in the endorsement of our writ of summons

… my submissions are that the defendants are in Lagos and I submit that the 2nd defendant (the auctioneer) also committed publication in Lagos. The posters comanated from his office in Lagos.”

After summarizing the submissions of the respective counsel, the learned trial Judge asked (himself) the following questions:

1) “Where does the cause of action arise in the case herein

2) Does reference to the location of the office and sub- office of the auctioneer with the writ of summons with the averment in the statement of claim that publication took place in the free of the auctioneer in Lagos.”

The learned trial Judge then went ahead to answer the two questions posed above which resulted in his declining jurisdiction. From the above, I am not ready to accept the submission of learned counsel for the appellant that the learned trial Judge formulated new issue suo motu, which were neither placed nor canvassed before him thereby embarking on a voyage of discovery. Issues are said to be raised suo motu when they are not covered in the pleadings at the trial court or where on appeal such issues do not form part of the grounds of appeal or issues for the determination of the appeal. There is a distinction between the circumstances in the case of Adeniran v. Alao (supra) or as reported in (2001) 18 NWLR (Pt. 745) 361: cited by learned counsel for the appellant and the present appeal. In the former’s case it was a land matter where both parties did not raise the issue of due execution of the deed of conveyance relied upon by the appellant. At the conclusion of hearing, the trial court dismissed the appellant’s claim on the ground that the appellant did not establish due execution and due authentication of the deed of conveyance relied upon by him. On appeal to the Court of Appeal, the Court of Appeal affirmed the judgment of the trial court and B held further that the respondents established the equitable defences of laches and acquiescence. The Supreme Court, per Uwaifo, JSC at page 366 stated: “in the present case, the two courts below went into diversionary issues not relevant and not canvassed by the parties” As seen earlier in the present appeal, the points raised by the learned trial Judge stemmed from the parties affidavits on the motion on notice for an order striking out the suit before the trial court. The two cases are quite distinguishable. I must emphasize the point that it is not prohibited for a court to raise issues suo motu. It can, in its discretion, do so if it sees it fit to so do, provided the discretion is exercised sparingly and in exceptional circumstances. Moreover, where points are taken suo motu, the parties must be given opportunity to address the court before the decision on the points is made. In the appeal on hand, the two points raised by the learned trial Judge were properly addressed by the parties and rightly decided by the two lower courts as the points were contained within the four corners of the parties affidavit evidence and the respective submissions made by the learned counsel for the parties. With regard to some orders cited from the Lagos State High Court (Civil Procedure) Rules, 1972, such as Order 9, rule 1(f). Order 1A, rule (4); I fail to see their relevance in this appeal as they make provisions applicable to Lagos State High Court whereas that court itself declined jurisdiction on the matter in litigation. Another point which was vigorously argued by learned counsel for the appellant is the holding of the lower court on the case of Benson v. Aslziru (supra). It is important here too, to distinguish the case of Benson v.Ashiru (supra) from the appeal on hand. In Benson’s case it is reported that the plaintiff/respondent, for and on behalf of himself and the dependant relatives of the deceased, whom he described as his wife, took an action against the appellants in the High Court of Lagos under the Fatal Accident Act, 1846 (of England) for the recovery of damages representing the pecuniary loss sustained by her death through the negligent driving of the second defendant at Iperu in Western Nigeria. The trial Judge held that it was the Fatal Accident Act, 1846 that was the applicable law and that the plaintiff had proved that the death of the deceased was caused by the negligence of the second defendant and the latter finding was not contested on appeal. He held again that the plaintiff had failed to prove that he was married to the deceased and awarded damages only for the benefit of the children and parents, as well as for funeral expenses. On appeal, it was contended that since the accident occurred in Western Nigeria the law applicable was the Torts Law of Western Nigeria and not the Fatal Accident Act, 1846. The Supreme Court held, per Brett, JSC at page 187-188 as follows:-

“On the material date, damages for causing the death of a human being were recoverable in Lagos under the Fatal Accidents Act, 1846 and 1864, which applied as statutes of general application which had been in force in England on the 1st January, 1900 … They were recoverable in Western Nigeria under part 2 of the Torts Law. The trial Judge was of the opinion that the Fatal Accidents Acts applied in Westem Nigeria concurrently with the Torts Law, but in this he overlooked the Law of England (application) Law (Cap. 60) under which English Statutes of general application ceased to apply as such in Western Nigeria from and after the 1st July, 1959 … the rules of the Common Law of England on questions of private lnternational Law apply in the High Court of Lagos. Under these rules an action of tort will lie in Lagos for a wrong alleged to have been committed in another part of Nigeria if two conditions are fulfilled: first, the wrong must be of such a character that it would have been actionable if it had been committed in Lagos; and secondly it must not have been justifiable by the law of the part of Nigeria where it was done.” The grudges of the appellant was that the trial court refused to follow the case of Benson v. Ashiru (supra) which the court below affirmed. What is gatherable from the record of appeal is that the learned counsel for the appellant who appeared for his client throughout in both the trial court and the court below, stated while

making his submission on the motion on notice before the trial court, which was moved on 28th March, 1994. that: .” also regard to the Rules for Auction for Tort .

The Common Laws of Private International Law applies in Lagos State. I refer to Olayiwola Benson and Another v. Joseph Oladipupo Ashiru (1957) NWLR page 363 at 367. I urge the court to apply the reasoning in that case.” The trial court did not make any reference to the above case in its ruling. Ground No. (a) of the appellants grounds of appeal attacked the trial court’s decision on its failure to follow that decision. Learned counsel for the appellant encapsulated that ground under the sole issue he raised for the determination of the court below. He argued it in the appellant’s brief (page 71 of the record). In its judgment, the court below considered the issue thoroughly and held as follow:- ‘The learned counsel for the appellant made reference to the Supreme Court decision in Olayiwola Benson v. Joseph Oladipupo Ashiru (1967) 1 All NLR 184, that questions of Private International Law apply in the High Court of Lagos. That case is not on all fours with this present case. That case, it would appear, involved issues relating to the fatal accident and not libel. Besides, that statement of the Supreme Court was made obiter. As obiter dictum it is not binding on the lower court as precedent as far as the doctrine of stare decisis is concerned. See P. 85 line 35 of the reports as obiter (1)

which shows clearly that the statement was an obiter dictum. In view of the position of the law this Supreme Court decision is not binding on the lower court as a precedent. The lower court was right to have refused to be bound by it or over considered it. Apart from the position of the law being very clear as regard venue I have shown above that the Constitution of the action for libel in case of Olayiwola v. Ashiru (supra) appears to be archaic and not in tune with the position of the law as explained above.” think before I go ahead to consider whether the decision in Benson v. Ashiru (supra) was as an obiter or not, it is germane at this juncture to state that law generally, whether statute or case law, I an organic phenomenon which develops along with the society. It is worthy of note that the Benson’s case (supra) was decided in 1967. I think I am entitled to take judicial notice that by 1967, this country was experiencing its 1st Military Rule which was by Decrees.C.) and Edicts in addition to adopted laws of general application applicable in the courts and Nigeria was just broken into 12 States from the then Regional Governments. So there were still some hangovers and fusions of laws, rules and practices of the regions into the newly created states. This continued for sometime. However, in 1979, a Constitution for the whole Federation was enacted into law which demarcated the territorial jurisdiction of each State with its Local Governments. The 1999 Constitution provided for the demarcation to each of the states including new ones. Lagos and Ogun States are by that exercise two different States, each with its separate geographical entity and Local Governments. The 1979 Constitution in section 3(1) provides:

“3(1) there shall be nineteen states in Nigeria, that is to say, Anambra, Bauchi, Bendel, Benue, Borno, Cross River, Gongola, Imo, Kaduna, Kano, Kwara, Lagos, Niger, Ogun, Ondo, Oyo, Plateau, Rivers and Sokoto. Each State of Nigeria named in the First Column of Part 1 of the First Schedule to this Constitution shall consist of the area shown opposite thereto in the Second Column of that Schedule. (Italics supplied for emphasis)

The First Schedule, Part 1 thereof, for the purposes of this appeal provides the area covered by each of the two States of Lagos and Ogun as follows: State Area Lagos Lagos-Island, Lagos Mainland, Shomolu, Mushin, Epe, Badagry,lkorodu, lkeja, Abeokuta, Odeda, Obafemi-Owode, Iro-Gita, Egbado North, Egbado South, Ijebu-Ode, Ijebu-North, ljebu-East, Ijebu-Remo (Italics supplied for emphasis)

Each of the two States mentioned above, by the operation of the new Constitution, has its own judiciary and personnel with no (2) Ogun State Headquarter Ikeja Abeokuta one overlapping or dependant on the other.

Section 6 of the said Constitution provides: “(2) The judicial powers of a state shall be vested in the courts to which this section relates being courts established, subject as provided by this Constitution, for a State.” Section 234(1) of the same Constitution established a High Court for each State of the Federation with its Chief Judge and other Judges (Section 270 of the 1999 Constitution).

Each of the High Courts has its own rules of practice and procedure which operate independent of one another.

Thus, if a cause of action arises in any of the States of the Federation within the period when the 1979 Constitution staJ1ed to be in application, and except where jurisdiction is taken away by the same Constitution, jurisdiction must reside in the respective court of that State. The subject matter of litigation in this appeal is libel. Generally, a cause of action in the tort of libel arises where the libel is published See: Ezomo v. Oyakhire (1985) 2 SC 260, (1985) 1 NWLR (Pt 2) 195; Egbue v. Araka (1988) 3 NWLR (Pt. 84) 598; O’Keefe v. Walsh (1903) 2 TR 706;Powel v. Gelsteln (1916) 2 K.B. 615.

There is a finding by the teamed trial Judge which has not been appealed against that Chief Dairo, learned counsel for the appellant in his reply conceded that because the libel was pasted on a property situate in Ogun State, publication must be assumed to have taken place in Ogun State. This automatically confers jurisdiction on the High Court of Justice of Ogun State and not that of Lagos State. This is because in a defamatory action, publication of the defamatory statement is an essential element of the cause of action. So, it is the publication not the composition of a libel which is the actionable wrong as the injury alone by it arises from the effect produced upon its readers. See: Lee v.Wilson (1934) 51 C.L.R. 276 at 287.

Although the learned counsel for the appellant had invoked the jurisdiction of the High Court of Lagos State to try the matter on hand, he should be reminded that it is not the wishes or consent of a party that confers jurisdiction on a court. It is the nature of the claim before the court and the Constitution or other statutes that confer jurisdiction on a court. The jurisdiction in this matter is that of venue or place of trial. Going by the provisions of the Constitution of the Federal Republic of Nigeria. 1979 (including the 1999 Constitution) it is the High Court of Ogun State that can properly exercise its jurisdiction on a libel matter that arise in Ogun State irrespective of which Judicial Division handles the suit in Ogun State. It is very certain that where a cause of action is instituted and tried in a court outside the territorial jurisdiction of a state where the cause of action arose is different from instituting an action outside the Judicial division in the same state where the cause of action arose.

In the case of International Nigerbuild Construction Co. Ltd. v. Giwa (2003) 13 NWLR (Pt. 836) 69 at 75, the Court of Appeal stated in that respect as follows:

“there is a world of distinction between jurisdiction as it relates to the territorial, geographical jurisdiction of a court and jurisdiction in relation to the judicial division within which to commence an action. The distinction between venue, as an aspect of jurisdiction which could be administrative or geographical, in which a suit may be heard, is often provided in the rules of court of various States of the Federation. But when it comes to territorial jurisdiction, which is whether a suit ought to have been brought in one state but brought in another, the criteria

is different. In such a case, the court has no jurisdiction and it cannot be conferred by agreement or consent of the parties.”

I am in complete agreement with that holding. Thus, territorial and subject matter jurisdiction are very concomitant to the exercise of jurisdiction by a Lagos State High Court in this matter. It certainly lacked both. Any decision done by that court will be a nullity. See: Madukom v. Nkemdilim(1962) 2 SCNLR 341, (1962) 1 All NLR 587. Now coming back to the case of Benson v. Ashiru (supra). I think I should start by commenting that it is not desirable or ideal for a counsel to rely and cite holdings or editors summary of a case. That in my view is a lazy counsel’s approach. A counsel who is serious must devote his time and attention to go deep into the judgment of a court in order to arrive at the exact holding of that court. This will certainly obviate occurance of avoidable mistakes.I find support in my view in what Uwais, former Chief Justice of Nigeria once said in the case of Franchal (Nig.) Ltd. v. N. A. B. Ltd. (2000) 9 NWLR (Pt. 671) 1 at pp. 13 – 14 H – A: “It is lazy for counsel to rely on headnotes in law reports instead of reading the whole of the facts of the case he is relying on to see how relevant the decision in the case is to his own case.” The present appeal, in principle, is like that of Amanambu v. Okafor (in unreported Supreme Court Appeal No. 278/1965) which was cited in the case of Benson v. Ashiru (supra) by the appellants therein, asking the Supreme Court to follow it. The facts in Amanambu v. Okafor were that the negligent act and the death had taken place in Northern Nigeria and the Supreme Court held that an action did not lie in the High Court of Eastern Nigeria under the Fatal Accidents Law of Eastern Nigeria. I have digested the decisions of both the trial court and the court below. As I observed earlier, the trial court did not say anything about Benson v. Ashiru’s case. The attempt of the court below was to distinguish the facts of the appeal before it and that of Benson v.Ashiru (supra). My understanding is that different criteria applied altogether in both cases especially with regard to the conditionalities laid in Benson v. Ashiru on the applicability of statutes of general application and the common law doctrine of private international law. In practice, two or more cases may present facts which may appear to be similar. On closer examination however, some fine distinctions may well be noted and the set of laws applicable to the two cases may have to differ. This was the purpose of the court below’s decision although put in stronger language. I do not think that a foul language, if at all, used by a court, although uncalled for and always discouraged, has the effect of changing a law. The two cases i.e. Benson v. Ashiru (supra) and this appeal, are in my view, quite distinguishable and governed by different principles of the law. The issue of whether Benson case was obiter or not, seems to me to an unnecessary splitting of the hair which has no real effect on the present appeal. In the final analysis, I find no merit in this appeal. I hereby dismiss the appeal and affirm the court below’s judgment. The respondents are entitled to N10.000.00 costs from the appellant.

---

SC.187/2002