People?s Voice Communication Ltd. & Anor V. Alhaji Mohammed Lawal & Anor (2004)
LawGlobal-Hub Lead Judgment Report
JA’AFARU MIKA’ILU J.C.A.
The respondents as plaintiffs instituted an action by way of writ of summons against the appellants/defendants. The writ of summons was dated 28th August, 2000 and filed before the Kwara State High Court of Justice, on 28th July, 2000.
The claim against the appellants as per paragraph 20 of the statement of claim is shows as follows:
1. The 1st plaintiff claims the sum of N500 million naira as damages for libel published of and concerning the 1st plaintiff, the following words under captioned “LATEST ON N600M SCAM GOV. SEEKS LEGISLATORS, MONARCHS’ HELP” the particulars of which are stated in paragraph 7 above as contained in Vol. 1 No. 28 of the July 20-26 edition of the People’s Advocate, published by the 1st defendant and edited by the 2nd defendant.
2. The 2nd plaintiff claims, the sum of N200 million damages for the libel published of and concerning the 2nd plaintiff the following words under the captioned “LATEST ON N600M FINANCIAL SCAM GOV. SEEKS LEGISLATORS, MONARCHS’, HELP” particulars of which are stated in paragraph 7 above as contained in vol.! No. 28 of the July 20 – 26 edition of the People’s Advocate published by the 1st defendant and edited by the 2nd defendant.
3. An order of injunction restraining the defendants whether by themselves, their agents, servants or howsoever called from further writing or publishing or causing to be written, printed or circulated or otherwise publishing of the plaintiffs the said similar libel.
This was suit No. KWS/89/2000 and the same date suit KWS/90/2000 was filed by them. Then the respondent/ plaintiffs through motion ex parte obtained an interim order from the court which reads as follows:
“It is hereby ordered that the defendants/respondents be and are hereby restrained whether by themselves, their servants, agents, privies or whatsoever called from further writing, printing or causing to be published or printed or circulated or otherwise publishing (sic of and concerning the plaintiffs the libel contained in vol. 1 No. 28 of July 20-26, 2000 edition of the People’s Advocate titled “LATEST ON N600 FINANCIAL SCAM GOV. SEEKS LEGISLATORS, MONARCHS’ HELP” or similar libel, pending the determination of the motion on notice.
Motion on notice is adjourned to 10th day of August, 2000, for hearing.
Given at Ilorin under the seal of the court and the Hand of the Presiding Judge this 28th day of July, 2000.”
The appellants on their part came up with a motion on notice dated and filed 1st August, 2000, praying the trial court for the following:-
“(i) An order striking out and or dismissing the plaintiffs’ action/actions as:-
(a) same discloses or disclose no reasonable cause of action against any of the defendants and/or;
(b) same constitutes or contribute an abuse of the process of court and/or;
(c) same intends or intend to curtail, infringe and breach the defendants constitutional rights and/or;
(d) plaintiff have no locus standi to institute this action and/or;
(e) same is/are not properly constituted.
(ii) An order striking out the entire action/actions as same is/are not properly constituted and as such does/do not vest any jurisdiction on the court to adjudicate upon.
(iii) An order setting aside or discharging the ex parte order made against the defendants by this Honourable court on 28th July, 2000 and on the grounds that:
(a) plaintiff’s misled the court to grant or make the order;
(b) plaintiff’s misrepresented facts to the court to obtain order;
(c) order of ex parte injunction cannot be made in this type of case;
(d) and for such further order(s) as this Honourable court may deem to make in the circumstances of this case.”
The trial court having heard the parties on the above motion delivered its ruling on 22nd August, 2000, in which it dismissed the application as groundless, unfounded, as well as lacking in merit. On 10th August, 2000, the appellants appealed against the grant of the ex-parte motion. Dissatisfied with the ruling of 22nd August, 2000, the appellant also filed an appeal before this court containing ten grounds of appeal which has subsumed the earlier appeal. The ten grounds of appeal are:-
1. The learned trial Judge erred in law by holding that each of the plaintiffs has locus standi to institute this action against the defendants.
2. The learned trial Judge erred in law by holding thus:
“it is erroneous and also misconceived of the learned Counsel to the defendants, Chief Olanipekun, (SAN) to have submitted that with the ex parte order granted the plaintiff on 28/7/2000, there has been a conclusion that libel had been committed by defendants. It is erroneous and misconceived because the wordings of that order were not that of the court. The wordings in the order contained reliefs which the applicants were seeking for and the reliefs were set out in their application papers. The court in its ruling set out supra merely asked the registrar of the court to draw out the order accordingly”.
3. The learned trial judge misdirected herself in law by conclusively holding and determining as follows:-
“Suffice it to say that the words would be understood by reasonable people to refer (sic) to the plaintiff”.
4. The learned trial judge erred in law and also abdicated her duty by her failure to make a pronouncement on the submission or that an ex parte injunction is not usually issued or granted in a libel matter, particularly a libel matter like the one before her.
5. The learned trial judge misdirected herself in law by holding that the claim of the plaintiffs raises a reasonable cause of action.
6. The learned trial judge misdirected herself in law by her refusal to discharge the interim order made by her on 28th July, 2000.
7. The learned trial judge misdirected herself in law by concluding that the filing of two different actions on the same day by the plaintiffs in respect of the same publication and/or set of publications does not mount to an abuse of the court process.
8. The learned trial judge erred in law, misconstrued the submissions of the appellants’ counsel and thereby came to a perverse decision when she invoked the provisions of Order 11 rule 1 of the Kwara State High Court (Civil Procedure) Rules, 1987, to hold that the plaintiffs’ action is properly constituted or properly joined.
9. The learned trial judge erred in law when she held thus:-
“In action for libel, each false publication constitutes a cause of action.
See Halsbury’s Laws of England, Volume 28, 4th Edition, page 40 paragraph 80. Besides, the plaintiffs, deposed to the fact that in the two publications, although, one is a follow up to the other, there are different issues of law to be raised at the trial of the two suits”.
10. The trial Judge misdirected herself in law when she held thus:-
“In the matter now at hand, both plaintiffs are alleging in their statement of claim unwarranted transgression against their personal interest, and personal reputation as affecting their status standing in the society or community. Thus, the publications, the plaintiffs are complaining of in their pleadings do not relate to or affect people generally, but themselves, the two plaintiffs”.
The relief being sought by the appellants in this appeal are:-
(i) To allow the appeal, strike out the plaintiffs action(s), and or dismiss the same.
(ii) In the alternative to (i) supra, discharge and/or set aside the ex parte order made by the trial court on 28th July, 2000:
(iii) Direct that the case(s) be sent to the Chief Judge of Kwara State for re-assignment to another Judge in view of some conclusive findings of the learned trial Judge even if the ex parte application stays.
When this matter came up for hearing on 25th February, 2004, the learned Counsel for the appellants, A. O. Adelodun adopted the appellants’ brief of argument of 28th August, 2000, and the appellants’ reply brief of 20th October, 2000. The respondent counsel was absent.
In the appellants’ brief of argument, six issues have been formulated for the determination of this court in this appeal. The respondents’ brief of argument contains also six issues for determination which are not dissimilar to the ones in the appellants’ brief of argument.
Issues (i) and (ii) in the appellants’ brief of argument have been argued together and are said to cover ground 5. The preliminary objection in respondents’ brief of argument in which this court is urged to strike out ground 5 of the notice of appeal on the ground that the appellants have abandoned it having failed to file any brief in support of it cannot be upheld.
Issues I and II reads:-
(i) Do the plaintiffs jointly and severally have locus standi to institute this action against the defendants? – Grounds 1 and 10.
(ii) Do the claims of the plaintiffs disclose any reasonable cause of action? – Ground 5.
In accordance with the appellants’ brief of argument, germane to the determination and the resolution of these two issues are the five exhibits attached to the plaintiffs’ motion ex parte dated 27th July, 2000, marked exhibit A, B, B1, B2 and C read together with four exhibits attached to the defendants’ motion on notice dated 1st August, 2000, marked exhibits 1, 2, 3, and 4 which exhibits are the same. This court has also been referred to paragraph 7 of the statement of claim under which the purported offending portion of the defendants’ publication has been reproduced.
It can also be found on page 1 of exhibit A or exhibit. The learned Counsel has reproduced the portion as below:-
“A State Governor (name withheld) who was reportedly stopped from travelling abroad with the equivalent of about N600 million has resorted to the use of spiritual marabouts, traditional rulers’ influence and huge financial bribes to hire crowds for solidarity rallies…”
He has averred that by the above the following facts are clear:-
(i) No name of any Governor is mentioned;
(ii) No State or antecedent of any Governor is given;
(iii) No Profession of any Governor if referred to;
(iv) No geographical zone or location of any Governor is printed;
(v) No reference of whatever description is given of any commissioner, whether of finance or of any other port folio.
The learned Counsel for the appellant has also referred to the letter dated 20th July, 2000, written to the 2nd defendant by Chief Afe Babalola, SAN where he concluded:
“Although, our client’s name was not mentioned in the publication, we are strongly convinced that by innuendoes, the said publication was understood by the generality of Kwara State indigenes to refer to our client.”
He has added that in reply to the above letter, the defendant emphatically stated that they never wrote about the 1st plaintiff. Then he opines:
(i) That the 1st plaintiff knew that the publication did not (and does not) refer to him.
(ii) That as at 20th July, 2000, i.e. 8 days before the court granted an ex parte order, the 2nd plaintiff had not woken up to realize that the purported publication libeled him.
(iii) Chief Afe Babalola, SAN, especially wrote on behalf of the 1st plaintiff, whom he unequivocally referred to as his client.
With the above, the learned Counsel argues that the term locus standi has been defined as:-
“A place of standing, standing in court. A right of appearance in a court of Justice, or before a legislative body, on a given question “Black’s Law Dictionary, 6th Edition, page 941.”
That it is also defined as the ‘right to appear in court or be heard on any question’ in New Lexicon Webster’s Dictionary of the English Language Deluxe Encyclopaedic Edition, page 582. Having indicated that the same pattern has been followed in judicial decisions and pronouncements in various courts of the common law countries, particularly in Nigeria, he has submitted that in all cases where the “standing” of the plaintiffs has been found to be questionable, nebulous or unsubstantiated, such plaintiffs’ cases have been struck-out or dismissed without much ado.
He has relief upon several cases and among them Gamioba & Ors. v. Ezezi (1961) 1 All NLR 584, 588; (1961) 2 SCNLR 237 and the case of Adesanya v. President of the Federal Republic of Nigeria (1981) 5 SC 112 -191; (1981) 1 NCLR 249 where Fatayi-Williams (C.J.N.) at 140 stated as follows:-
“The law is now well settled that a plaintiff would have locus standi in the matter only, if he has a special legal right or alternatively, if he has specific or special interest in the performance of the duty sought to be enforced.
At 143 his Lordship posited again:-
“Undoubtedly, certain matters, such as the appointment of the Chairman and members of the Federal Electoral Commission, may sometimes present great controversies, such controversies are however, nonsuited for resolutions by the court since … they have been entrusted for other branches of the Government … for the deliberation eventual resolution.”
At page 152, Bello, J.S.C. (as he then was) remarked that “a general interest common to all members of the public is not a litigable interest to accord standing”. The learned Counsel in this case has other statements as follows:-
‘The type of a case or controversy which will justify the exercise of a court of its judicial power must be judicial power justiciable and based on a bonafide assertion of right by the litigants before it” – Idigbe, JSC, 165.
“The mere fact that an act of an executive is unconstitutional without any allegation of infraction of or its adverse effect on one’s civil rights and obligation poses no question between the appellants and the respondent as to the civil rights and obligations of the appellant” – Obaseki, J.S.C., 187.
“The litigant must show that the act which he complains affects rights and obligations peculiar or personal to him.” – Nnamani, J.S.C., 187.
With the above, the learned Counsel for the appellant has submitted that viewed from any of parameters set down by the Supreme Court in the locus classicus case of Adesanya (supra) none of the plaintiffs herein has the locus standi to institute this action.
He has added that an individual cannot sue or maintain an action in respect of a general interest common to everybody. That the 1st plaintiff in particular, in this case, cannot maintain an action in respect of a common wrong purportedly done to all 36 Governors of Nigeria, relying upon Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669; 670 – 671, where the apex court dismissed the plaintiffs’ action on the ground that they did not possess the standing to challenge the translation of Bishop Adetiloye to the Lagos Seat inspite of the fact that they claimed to be communicants of the Anglican Communion. He also relied on Re: Adetona (1994) 3 NWLR (Pt. 333) 481, where the Court of Appeal held that locus standi can only arise from a cognizable right which is clear and that it cannot be presumed or implied. In other words, it is not within the wishes or fancies of imaginations of the plaintiffs, as it is being done in this case, but it has to be something factual and even patent.
Then the learned Counsel for the appellant refers to the ruling of the lower court where it held as follows:-
“It therefore follows that the plaintiffs whose occupations and status are disclosed in the statement of claim, and which facts are not in dispute, and also after a careful perusal (sic) of the contents of exhibits, 1, 2, 3 and 4 attached to this application, and the two writ of summons (sic) and the statements of claim, I am of the view that the two plaintiffs herein have locus standi to bring this action and same is properly constituted before this court.”
On the above, the averment of the learned Counsel for the appellants is that the fundamental question of locus standi is not resolved or wished away by mere looking at the occupation and status of a plaintiff, even if those are not disputed. He refers to paragraphs 1 and 2 of the statement of claim which talk of the positions held by the two plaintiffs – the 1st plaintiff as retired Rear Admiral in the Nigerian Navy, while nothing is said about the profession or antecedents of the 2nd plaintiff. He opines that the lower court is not even correct in the above conclusion referring to Contract Resources (Nig.) Ltd. v. Wende (1998) 5 NWLR (Pt. 549) 243, 264, where this court held that the burden is always on the plaintiff to prove that he has the locus standi to commence an action and that where he fails to discharge the burden, the action must fail. As far as the learned Counsel for the appellants is concerned the 2nd plaintiff is a complete stranger with no imaginable nexus between him and the publication, despite the 2nd plaintiff’s claim to be the ‘guardian of the funds of the state’ which claim will be lidiculous in the extreme to be sanctioned.
On the question of cause of action, the learned Counsel for the appellants has submitted that ’cause of action’ has been defined as an actual situation the existence of which entitled one persons to obtain from the court a remedy against the other person in A.-G., Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) 645; 663. It was also held that before trial, a cause of action is determined upon a view of the plaintiff’s endorsement on the writ of summons and statement of claim. He has concluded that a reasonable cause of action does not enure… to plaintiffs, who constitute themselves into busy body, a mischief maker urging the court to resolve the two issues in favour of the appellants and strike out or dismiss the claim of the respondents. He refers to Akintola v. Solano (1986) 2 NWLR (pt.24) 598; 623 and Badejo v. Federal Ministry of Education (1996) 8 NWLR (Pt.464) 15.
In the respondents’ brief of argument, many cases have been referred to in defining locus standi. The learned Counsel for the respondents has maintained that in dealing with the locus standi of the plaintiff, his statement of claim alone has to be carefully scrutinized with a view to ascertain whether or not, it has disclosed his interest and how such interest has arisen in the subject matter of the action. That where the averments therein disclose the right or interest of the plaintiff which have been, or are in danger of being, violated or invaded or adversely affected by the act of the defendant complained of, such a plaintiff would be deemed to have shown sufficient interest to give him the locus standi to litigate over the subject matter in issue .. He refers to the case of Owodunni v. Registered Trustees Celestial Church (2000) 10 NWLR (pt.675) 315; (2000) FWLR (Pt. 9) 1455; 1479 paragraphs E to H, where Ogundare, J.S.C. stated as follows:-
“…The plaintiff or claimant must show that he has some justiciable interest which may be affected by the action or that he will suffer injury or damages as a result of the action.”
He has also cited at length, the statement of Iguh, JSC at page 1495 paragraphs B to D, with this he has drawn the attention of this court to paragraph 20 of the statement of claim of the respondent containing the claim of the respondents against the appellants jointly and severally. He opines that the relevant paragraphs of the statement of claim, reproducing the same, are paragraphs 1, 2, 7, 8 and 9(a) & (b) submitting that having; regard to the averments in the statement of claim, the learned trial Judge was right, when she held that the plaintiffs/respondents have locus standi to institute the action. He avers that the basis on which he held that the plaintiffs have locus stand which can not be faulted and which the appellant omitted to refer to in the brief are as follows:-
(a) That she made a careful perusal of the writ of summons and the statement of claim exhibits 1, 2, 3, 4, see page 90 para. 3.
(b) That she considered the nature of claim and cause of action and applied the case of Yusuf v. Akindipe a Supreme Court decision which is quite apposite.
(c) That both plaintiffs alleged unwarranted transgression against their personal interest and personal reputation as affecting their status and standing in society.
He has added that she held rightly that, the complains in their pleadings do not relate to or affect people generally, but themselves and relied on the case of Dalumo v. The Sketch Publishing Co. Ltd. (1972) 5 SC 308; (1972) 1 All NLR (Pt. 11) 130 a Supreme Court decision. He refers to Halsbury’s Laws of England, 4th Edition, Vol. 28, page 20 para. 39, where on the need for reference to the plaintiff in a libel action, it has been stated as follows:-
“However, it is not essential that the plaintiff should be named in the statement. Where the words do not expressly refer to the plaintiff, they may be held to refer to him, if ordinary sensible readers with knowledge of special facts could and did understand them to refer to him; such facts are material facts, must be pleaded in the statement of claim must be proved in evidence in order to connect the plaintiff with the words complained of. In certain circumstances, the plaintiff may require to identify the persons who are alleged to know the special facts. It does not matter that the special or extrinsic facts are unknown to those responsible for the publication.”
He also places reliance on Dalumo v. The Sketch Publishing Co. Ltd. (1972) 5 SC p. 308, where it it was clarified as follows:-
“It is not necessary that the words should refer to the plaintiff by name. Provided that the words would be understood by reasonable people to refer to him, and this is the test in every case, it is sufficient.”
With the above, the learned Counsel for the respondents has submitted that the averments in paragraphs 1, 2, 7, 8, 9(a) and (b) of the statement of claim show that the plaintiffs have locus standi to institute the action. He has added that contents of exhibits 2 and 4 are irrelevant to issue whether or not, the publication referred to the plaintiffs/respondents. He has added the cited paragraphs of the statement of claim to show that also, the 2nd plaintiff is legally competent to claim as he has claimed that he was defamed by the offending publication. He has concluded by urging this court to affirm the decision of the learned trial Judge that the plaintiffs/respondents have locus standi to institute this action.
In respect of the question of cause of action the learned Counsel for the respondents has averred that the appellants have termed the claim of the respondents as based on conjuncture, imaginary, bogus and functions without referring to the judgment of the trial Judge. On his part, he refers to the judgment of the lower court on p. 88, 4th paragraph to p. 89 which reads:-
“A cause of action is a reasonable one, where the pleadings raise some questions fit to be determined by the court. In considering whether a pleading discloses a reasonable cause of action, only the allegations in the writ of summons and statement of claim are examined.”
The respondents’ counsel maintains that having regard to the statement of claim particularly paragraphs 7 – 19; the respondents have placed before the court not only an arguable case but a prima facie case which would entitle them to judgment under it. On meaning of cause of action he cites Yusuf v. Akindipe (2000) 8 NWLR (Pt.669) 376; 386 as follows:-
“A reasonable cause of action means a cause of action with some reasonable chance of success when only the allegations in the pleading (statement of claim) are considered. So long a statement of claim discloses some cause of action, or raises some question fit to be decided by a Judge as in this case. The mere fact that the case is weak, and not likely to succeed, is no ground for striking it out or dismissing it.”
He has also cited the statement of Kalgo, JSC in Dantata v. Mohammed (2000) 7 NWLR (Pt. 664) 176; 213 as follows:-
“In determining the cause of action, or a reasonable cause of action, it is irrelevant to consider the weakness of the plaintiff’s claim; what is important is to examine the averments in the statement of claim and see if they disclose some cause of action or raise some question fit to be decided by the court.”
The learned respondents’ counsel avers that the plaintiffs/respondents’ claim discloses reasonable cause of action. He urges this court to hold so.
Both counsel in this case, have advanced meanings of ‘locus standi’ as well as ‘reasonable cause of action’, each relying upon several authorities such as Adesanya v. President (supra); Owodunni v. R.T C. (supra) and several others. Even in the case of Adenuga v. Odumeru (2003) 8 NWLR (Pt. 821) 163; 184, the Supreme Court has made it clear that locus standi denotes the legal capacity, based upon sufficient interest in a subject-matter, to institute proceedings in a court of law to pursue a certain cause. Thus, to ascertain whether a plaintiff has locus standi, the statement of claim must be seen to disclose a cause of action vested in the plaintiff and also, establish the rights and obligation or interest of the plaintiff which have been or are about to be violated, and in respect of which he ought to be heard upon the reliefs he seeks. The interest which the plaintiff alleges must be real not superficial or merely imaginary.
A careful study of the cases discloses that locus standi denotes legal capacity to institute an action before a court of law which is established by showing in the statement of claim of a party or parties instituting the action, the existence of legal right of the party or parties to secure the audience of the court over an issue brought before it thereby creating a corresponding legal duty on the court to hear and determine the action. In determining locus standi of a party the entire statement of claim should be looked into and not merely a part of it. In our case, all the averments of the learned Counsel for the appellants are based on a part of the statement of claim of the respondents and not on all the contents thereof. The learned Counsel for the appellants seems to be of the view that the trial court should have considered the statement of defence as well.
It is trite law that in determination of locus standi of a party only the statement of claim of a party should be considered. Refer to Global Trans Oceanico SA v. Free Ent. (Nig.) Ltd. (2001) 5 NWLR (Pt. 706) 426.
As for cause of action, it signifies the entire set of facts or circumstances giving rise to an enforceable claim, including all things necessary to give a right of action and every fact which is material to be proved to entitle the plaintiff to succeed. A tort of libel itself arises from anything written, printed or published which reflects adversely on the character or conduct of another person and is published without any lawful justification or excuse. Thus, in a tort of libel, such as the case at hand, it is the publication of the libel which in itself gives rise to the cause of action. Refer to Emiator v. Nigerian Army (1999) 12 NWLR (Pt. 631) 362.
In resolving the issue of locus standi, the trial court has made clear its reasoning on p. 89 of the record as follows:-
“In the matter now at hand, both plaintiffs are alleging in their statement of claim unwarranted transgression against their personal interest, and personal reputation as affecting their status in the society or community. Thus, the publications, the plaintiffs are complaining of in their pleadings, do not relate to or affect people generally, but themselves, the two plaintiffs.”
The trial court has added that it is not necessary that the words complained of should refer to the plaintiffs by name and that it would be sufficient if the words are understood by reasonable people to refer to the plaintiff. The trial court has concluded as follows:-
“It therefore follows that the plaintiffs whose occupations and status are disclosed in the statement of claim, and which facts are not in dispute, and also after a careful perusal (sic) of the contents of exhibits 1, 2, 3 and 4 attached to this application and the two plaintiffs herein have locus standi to bring this action and same is properly constituted before this court.”
The learned Counsel for the appellant in the appellants’ brief of argument has placed too much reliance on Adesanya v. The President of Nigeria (1981) 2 NCLR 358, and other cases based on public law. As a result, his averment is that the issue in this case involves all the 36 states Governors of Nigeria. I do not agree with him as the alleged publication clearly as indicated thereof affects only one Governor. So any of the Governors who alleges that it can be reasonably connected to him would have locus standi to institute an action and the burden would be for him at the trial to establish if it connects to him in person. In the case of libel it is not essential that no name has been used in the publication as the learned Counsel for the appellant is of the view. The mere fact that the trial court in its ruling has made a statement that “the plaintiffs – whose occupations and status are disclosed in the statement of claim, and which facts are not in dispute”, does not negate its earlier decision that ‘the publication the plaintiffs are complaining of in their pleadings do not relate to or affect people generally, but themselves, the two plaintiffs’. I do agree with the learned Counsel for the respondent that the trial court was right in holding that the plaintiffs have locus standi.
On question of reasonable cause of action the trial court has held that a cause of action is a reasonable one where the pleadings raise some questions fit to be examined. Perusing the writ of summons and the statement of claim, it has been of the view that the action discloses a reasonable cause of action. In this regard, the appellants in the appellants’ brief have only submitted that, perusing through the statement of claim the same does not disclose any reasonable cause of action. Without any hesitation they aver that the claim is based on conjunctive that it is imaginary, bogus fictitious and having hypothetical undertones.
However, the counter-argument of the respondents is that having regard to the statement of claim and particularly paras. 7 – 19 they have placed before the court not only an arguable case but a prima facie case which would entitle the plaintiffs a judgment under it. They have however maintained that the respondents’ claim as adumbrated in the statement of claim discloses reasonable cause of action. As indicated earlier, it is the publication of libel which in itself gives rise to the cause of action.
Refer to Emialar v. Nigerian Army (supra). In this case, the publication has been alleged in the statement of claim and they have also alleged therein that they have been greatly injured in their credit, character and reputation by the said publication see paras. 7 – 12 of their statement of claim. I think the trial court was right to hold that they have reasonable cause of action.
At this stage, I will have to comment on the averments of the appellants in respect of 2nd plaintiff, whom they have termed meddlesome interloper. Their view is that there is no clear nexus between him and the publication and for him to institute this case or action is ridiculous in the extreme. It is the counter-argument of the respondents’ counsel that the 2nd plaintiff cannot be regarded as a meddlesome interloper in this case, having regard to the paragraphs of statement of claim reproduced by the respondents’ counsel 1, 2, 7, 8 & 9(a) & (b). It suffices here to say that the 2nd plaintiff together with 1st plaintiff have by the said paragraphs averred to facts sufficient enough to give each of them standing to institute the action. To say more may lead to determining the case of the 2nd plaintiff before trial.
The two questions raised on issues (i) and (ii) are hereby answered in the positive. The averments of the appellants on the first two issues fail.
The 3rd issues as in the appellants’ brief is framed as follows:-
iii) Even if either or both of (i) and (ii) supra is/are resolved in favour of the 1st plaintiff and against the 2nd plaintiff due to the state of the pleadings, the action should not still be struck-out or dismissed – Ground 8.
Issue (iii) as framed in the respondents’ brief of argument – on ground 8 also is different from the issues (iii) above as formulated by the appellants in their brief. It reads as follows:-
“Issue iii
Was the learned trial Judge right in holding that the respondents’ action is properly constituted – Ground 8”
I think the third issue as formulated by the respondent is misconception of the averment of the appellants on issue (iii) of their briefs. The averment of the appellants is that based on the state of pleadings the action is not maintainable in favour of one plaintiff, once the name of one of the plaintiffs is struck out. Specifically, they are averring that if either or both of the first two issues is/are resolved against the 2nd plaintiff then, the action is not maintainable by the 1st plaintiff due to the state of pleadings. The first two issues having both been decided in favour of both plaintiffs/respondents answering the third issue would now amount to a mere academic exercise entitling the appellants to nothing. It is not for a court to indulge itself into a mere academic exercise and therefore third issue goes to no issue.
The issue No. (iv) reads as follows:-
“(iv) Whether or not, the institution by the plaintiffs suits numbers KWS/89/2000 and KWS/90/2000 against day and/or on the same subject matter does not constitute a patent abuse of the court process – Grounds 7 and 9.”
It is the averment of the appellants that on the same day and at the same time, the plaintiffs instituted suits KWS/89/2000 and KWS/90/2000 against the defendants, based on the same set of publication(s) and the pleadings are virtually the same with the exception of paragraphs 7 and 20 in each of them. Here, reference is made to paragraphs 5 and 6 of the counter affidavit of the plaintiffs against the defendants’ application for the striking out of the action deposed to by one Kamal Fagbemi and paragraphs 7, 8 and 9 of the affidavit in support of the ex parte application. The appellants on this have pointed out the following:-
(i) The main reason for bringing an application for an order of interim injunction by the plaintiff suit number KWS/89/2000 was as a result of the application being complained of in suit number KWS/90/2000 and which publication was made in July 6-12th 2000, although it was erroneously deposed to in the affidavit that it was made on 20th July, 2000.
(ii) That the publications are in respect of the same subject matter.”
With the above they have submitted that the filing or institution of the two actions, is a clear demonstration of an abuse of court processes. That they constitute multiplicity of actions on the same subject matter against the same opponents, amounting to improper use of judicial process to harass, intimidate, annoy and irritate the defendants, which steps have been deprecated by courts.
On this, reliance has been made on the following authorities:-
1. A.C.E. Plc. v. Nwaigwe (2000) 1 NWLR (Pt.640) 201; 210.
2. Aruba v. Aiyeleru (1993) 3 NWLR (Pt. 280) 12
3. Globe Motors Holdings Ltd. v. Honda Motors Co. Ltd. (1998) 5 NWLR (Pt. 550) 373; 383.
They have indicated that in each of the above cases, the appellate courts held that where an abuse of court process is established, the action is liable to be dismissed.
As far as the respondents are concerned the issue is whether or not, the learned trial Judge was right in her view that the institution of the two actions by the respondent in suit No. KWS/89/2000 and KWS/90/2000 against the appellants in respect of different offending publications by the appellants on different dates does not constitute abuse of process of court.
Their submission is that the filing of the two actions in this case is not and can never be an abuse of process of court for the following reasons:-
1. The two actions are in respect of different publications by the appellants made at different dates.
2. The time honoured is that, each false publication constitutes a cause of action see Halsbury’s Laws of England, Vol. 28, 4th Edition, page 40 para. 80.
3. The publication in the two suits are different, even though the publications in suit KWS/…/2000.
The first publication deals with N600 million financial scam, while the second deals with the alleged acts of bribery, the employment of traditional rulers and spiritual marabouts …the Governor to settle the necessary investigation by the House of Assembly in the fraud.
They have added that the trial court realised this and therefore, held that even though the parties are the same, the publication complained of in the two suits are not entirely the same.
The trial court has made its decision very clear on this point in the following words:-
“A careful perusal (sic) of the two suits – namely – suit No.KWS/89/2000; and suit No. KWS/90/2000 filed by the plaintiffs on 28/7/2000; show that even though the parties are the same, the publication complained of in the two suits are not entirely similar.
By endorsement in the writ of summons of suit No.KWS/89/2000 the claim of the plaintiffs is in respect of the publication in Vol. 1, No. 28 of July 20-26 edition of the peoples advocate titled or captioned “LATEST ON N600M FINANCIAL SCAM; GOVERNOR SEEKS LEGISLATORS, MONARCHS’ HELP.”
Whereas in suit No. KWS/90/2000 its writ of summons by endorsement thereon, the claim of the plaintiffs is in respects of the publication of the defendants made in Vol. 1 No. 26 of the July 6-12 edition; in which was the publication titled “GOVERNOR HELD ATTEMPTING TO EXPORT N600 MILLION” see p. 87 of the record.”
With the above, the trial court has concluded by making it clear that in an action for libel each false publication constitutes a cause of action. It is therefore clear that in this case though the two suits can be said to be on the same subject matter, they are based on two distinct and separate publications and the 2nd publication contains different wordings. In African Reinsurance Corporation v. J.D.P Construction (Nig.) Ltd. (2003) 13 NWLR (Pt.838) 609; (2003) 23 WRN 1, it has been made clear by Tobi, JSC, that abuse of process of court is a term generally applied to a proceeding which is wanting in bona fide and is frivolous, vexatious or improper use of legal process. That it always involves bias, malice, some deliberateness, some desire to misuse or pervert the system.
He has added that there is said to be an abuse of the process of the court, when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponent, such as instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue. It has also been made clear in Onyeabuchi v. INEC (2002) 8 NWLR (Pt. 769) 417, that it will be an abuse of the process of court for the plaintiff to litigate again over an identical question which had already been decided against him, or where proceedings which were triable when instituted have by reason of subsequent events become inescapably doomed to fail. In our case, the two suits being on two separate publications cannot be said to be an abuse of judicial process. Therefore all the averments of the appellants in this regard fail.
Issues (v) and (vi) have been argued together. They read:-
(v) Considering the nature of the case presented before the lower court and the material supplied by the plaintiffs, whether or not, the lower court was right in granting the interim order it did on 28th July, 2000 and in refusing to vacate same on 22/8/2000 – Grounds 4 and 6.
(vi) What is the effect of the conclusive pronouncement made by the lower court in its order/rulings. – Grounds 2 and 3.
It is the averment of the appellants that the lower court has already made up on the “guilt” of the defendants/ appellants as against the “righteousness” of the plaintiffs, that she has finally decided the case of the plaintiffs, leaving only the award of damages which is just a question of formality. On this, the appellants are relying on the wording of the ex parte order granted by the court and its statements in the ruling as follows:-
1. “In the matter now at hand, both plaintiffs are alleging in their statement of claim unwarranted transgression against their personal interests and personal reputation as affecting their status and standing in the society or community. Thus, the publications the plaintiffs are complaining of in their pleadings do not relate to or affect the people generally, but themselves, the two plaintiffs.
2. Suffice it to say that the words would be understood by reasonable people to refer (sic) to the plaintiff (sic}.”
The appellants’ submission is that in … of cases it has been held that in deciding an interlocutory or interim application a court must guard against making pronouncements or findings which may affect the merit of the substantive case or destroy the substratum or subject matter in contention. Reference is made to Salim v. Ifenkwe (1996) 5 NWLR (Pt.450) 564; 583 and P.E.F.M.B. v. Grenigas (1986) 5 NWLR (Pt. 39) 132.
It is also averment of the appellants that an injunction is not usally granted in a defamatory or libel matter referring to Gately on Libel and Slander page 639 and Injunctions and Enforcement of Order by Afe Babalola, SAN, pages 175-178. Their other contentions here can be summarised as follows:-
(i) No reason whatsoever was given by the court for granting the interim order.
(ii) The order was made pursuant to misrepresentation of facts before the Court. While it was based on publication of 20-22nd July, 2000, the supporting affidavits relate to publication of July 6-12th, 2000 and exhibits attached predated July 20-22nd, 2000.
(iii) The order restrained the practice of the appellants trade and their constitutional lights as preserved under section 39(1) and (2) of the 1999 Constitution.
(iv) An injunction will not be granted and if granted ex parte would be discharged, if it will have the effect of determining the substantive case or patt thereof. Salim v. Ifenkwe (1996) 5 NWLR (Pt. 450) 564 referred to.
The respondents have counter-argued that an injunction is not usually granted in a defamation or libel case is a principle of law, but that principle does not necessarily decide the outcome of any application for injunction in any libel case. They have reiterated that there is no rule of law that injunction is not granted in libel cases. I do agree with the respondents that the appellants seem to have construed the principle that injunction is not usually granted in libel matter to mean that it must not or cannot be granted. Undoubtedly, the grant of interlocutory injunction is meant to protect a plaintiff against the injury that may be inflicted on a party by violation of his right. However, even the appellants in their reply brief have conceded that the injunction is rarely granted except only in clearest of cases and with a lot of caution. I am of the view that there is no rule of law prohibiting the court from the grant of interlocutory injunction in libel cases.
However, the principle is that the court should be cautions in the exercise of its discretion to grant the same.
The appellants have contended rightly that any order drawn by a court carries the words of court and that the mere fact the court orders that ‘the order is granted as prayed does not in anyway negate this. However, I do not agree with their contention that no reason was given by the court below for granting the interim order. It is clear from page 29 of the record that in granting the order the court below had listened to the counsel for the plaintiff and has perused the seventeen paragraphs affidavit deposed to by one Kamal Fagbemi. While there is nothing like misrepresentation of facts to the court the appellants can also not be heard to complain that the order restrained the practice of their trade and their constitutional right as preserved under section 39(1) and (2) of the 1999 Constitution because they are not completely shut out from the practice of their trade.
As indicated earlier, it has been averred by the appellants that an injunction will not be granted and if granted ex parte would be discharged, if it will have the effect of determining the substantive case or part thereof, relying upon Salim v. Ifenkwe (supra). Undoubtedly, it has been made clear in the Miscellaneous Offences Tribunal & Anr. v. Okoroafor &Anr. (2001) 18 NWLR (Pt. 745) 295, that the court ought to refrain from making pronouncements touching upon the main issue that would have to be determined between the parties. In our case, the statements made by the trial court was in the exercise of determining the locus standi of the plaintiffs and or cause of action. In the exercise, the court below had a duty to consider the alleged facts in the statement of claim.
The portions cited by the appellants are commentaries made during that exercise on the facts alleged and not decision, upholding the facts. I have therefore seen no reason of discharging the ex parte order or directing the Chief Judge to assign the case to another Judge.
In the final conclusion the appeal fails. The decision of the court below is affirmed. The appeal is dismissed as it lacks merit. I make no order as to costs.
Other Citations: (2004)LCN/1580(CA)