Oliver O. Amuzie Esq V. Arch. Chris O. Asonye (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Abia State presided over by His Lordship. Hon. Justice A. U. Kalu delivered on 14/12/06 wherein the claim of the Plaintiff was dismissed. The Plaintiff therein is the Appellant herein and the Defendant is the Respondent herein.

The facts that led to this appeal are as follows:

By a letter dated 28th September, 2005, admitted as Exh. G, the Appellant, a legal practitioner, wrote to the Respondent demanding a total sum of N380,000.00, which he claimed was unpaid professional fees owed to him by the respondent for legal services he rendered to the respondent. Respondent replied to this letter by his own letter dated 12th Nov, 2005, Exh. A & H, wherein he berated Appellant for inter alia denying the payments the Respondent did in fact make and deceiving him into believing that Appellant was conducting respondent’s matter for and on behalf of the law firm of A. A. Ibebunjo & Co when in fact he had diverted the matter to his personal brief, Exh. A & H are the same letter on which the action is based. I will refer to the letter henceforth as Exh. A. Appellant conceived Exh. A as libelous of himself and filed this action against the respondent at the High Court of Abia State sitting at Umuahia, wherein he claimed the sum of N20m as general damages for defamation and an injunctive relief.

Respondent in his statement of defence admitted writing Exh. A to the Appellant and generally denied all other allegations in the statement of claim except the home address and former abode of Respondent. He also pleaded justification and fair comment. Appellant also filed a reply to the statement of defence in which he denied receiving any professional fee from Respondent whatsoever. At the trial, the Appellant testified on his own behalf and called two other witnesses. Respondent also called three witnesses including himself.

The learned trial judge after evaluating the evidence delivered his judgment and found that the Appellant failed to prove the publication of the alleged libelous material by the Respondent, and dismissed the suit on this sole ground. Then in exercise of its inherent powers, the lower court directed that the judgment be copied to the Nigerian Bar Association, Umuahia Branch and the Commissioner of Police, Abia State for any action they may deem necessary to take after investigation into the conduct of the Appellant. It is against this judgment that the Appellant filed a notice of Appeal on 18/12/06 containing eight (8) grounds of appeal. Respondent reacted to this by filing a Respondent’s notice on 5/6/07 containing two grounds wherein the court of appeal is urged to affirm the lower court’s judgment on other grounds than that relied upon by the learned trial judge. The Appellant filed a brief dated 11/6/10 on 14/6/10 and a reply brief dated and filed on 27/9/10. The Respondent filed a brief dated 2/8/10 on 10/8/10. Issues were joined by the parties in this court.

The Appellant identified the following issues for determination:

“1. Whether from the admissible, evidence and circumstance of the case, the Appellant did not prove publication of the said defamatory letter by the Respondent to any third party? (derived from grounds 1, 3, 4, 5, and 6 of the Grounds of Appeal).

2. Whether the learned trial judged was right in basing his decision in the matter purely on extraneous matters not supported by pleadings and admissible evidence before the courts? (Derived from Grounds 2, 5 and 6 of the Grounds of Appeal.
3. Whether the findings and uncomplimentary remarks made by the learned trial Judge against the person of the Appellant based on extraneous matters are proper in the circumstance of the case? (Derived from grounds 5 and 6 of the Grounds of Appeal).
4. Whether the granting of orders not asked for by any party to the case in favour of non parties by the learned trial judge was proper in the circumstance of the case? (Derived from ground 7 of the Grounds of Appeal).
5. Whether the trial judge properly evaluated the evidence of parties and if the decision of the trial court was not against the weight of evidence before the court? (Derived from Grounds 4 and 8 of the Grounds of Appeal).
6. Whether in the circumstances of the case, the Appellant was not defamed by words published by the Respondent and if the Respondent established the defence of jurisdiction to escape liability? (Derived from grounds 4 and 8 of the Grounds of Appeal).”

The respondent donated the following issues for consideration:

“(a) Whether the learned trial judge was right in his finding that Appellants failed to prove publication of the alleged libel and dismissing the suit of the Appellant on that ground (Derived from grounds 4 and 8 of the Notice and grounds of Appeal).

(b) Whether the defences of justification and fair comment also avail the Respondent in this suit (Derived from ground 1 of the respondent’s Notice).

(c) Whether in the circumstances of this case, the learned trial judge was not justified in making the consequential orders he made in his judgment (Derived from grounds 6 and 7 of the notice and Grounds of Appeal).

(d) Whether in the circumstances of this case, the Appellant has any character worthy of protection by the law (Derived from ground 2 of Respondent’s Notice).

Let me say that issues 3 and 4 submitted for determination by the Appellant though derived from grounds 5, 6 and 7 of the Ground of Appeal are in my humble view irrelevant being academic issues not worthy of our consideration. They seek our opinion on whether the learned trial judge’s uncomplimentary remarks were proper and whether the orders made by the learned trial judge on the Inspector General of Police to investigate the Appellant were legal. It is my humble view that the right of appeal conferred by the constitution on a litigant does not donate unlimited right on an Appellant to raise all manner of grounds of appeal. There is no doubt that the comments and orders of the learned trial judge in respect of the Appellant were by way of obiter dictum and are thus not subject matter of appeal. See DR. IME SAMPSON UMANAH v. OBONG VICTOR ATTAH (2006) 9 SCNJ 75. The judgment of a court, the legal principle formulated by that court which is necessary in the determination of the issues raised in the case, that is the binding part of the decision, is its ratio decidendi as against the remaining parts of the judgment which merely constitute obiter dicta; that is to say what is not necessary for the decision. See DAIRO v. UBN (2007) 16 NWLR Pt. 1059 Pg. 99 at 158-159. Any valid issue for determination must arise from the ground of appeal that attacks the ratio in the judgment on appeal. See VICTOR ADELEKAN v. ECU-LINE NV (2006) 5 SCNJ 137. This court is not obliged to consider issues that are not part of the live issues in this appeal. The learned trial judge at pages 62-63 of the judgment after finding the claim not proved dismissing same and awarding costs against the Appellant in favour of the respondent held thus: