Skye Bank Plc V Chief Moses Bolanle Akinpelu (2010)

LAWGLOBAL HUB Lead Judgment Report

J.O. OGEBE J.S.C. 

The respondent who was the plaintiff at the High Court sued the appellants as the defendants before the High Court of Justice Ibadan on the 31st of July 1999 seeking the following reliefs:

1. The Plaintiffs claim is for perpetual injunction restraining the Defendants by themselves or their Agents, Servants and Privies or otherwise howsoever from taking any steps or further steps towards or in pursuance of the decision by the 1st Defendant, through the 2nd Defendant or anybody whatsoever to sell the Plaintiffs property situate, lying and being at Ijebu-Ode/lbadan Motor Road, Ibadan in Oluyole Local Government Area, Ibadan in Oyo State of Nigeria and as described in the Lands Registry a $ Instrument No. 56 at page 56 in Volume 434 and Certificate of Occupancy Registered as Instrument No.1 at page 1 in Volume 2974 in the Lands Registry in the Office at Ibadan in satisfaction on the mortgage aliegedly taken by one Mr. S. A. Oshinowo who does not own the property.
2. Declaration that the purported threat by the 1st Defendant through the 2nd Defendant to sell the property on or about 5/9/91 in consequence of the Auction Notice dated 6/7/91 pasted on the property by the 2nd Defendant is null, void, illegal and of no effect as the property belongs to the Plaintiff and not Mr. S. A. Oshinowo.
3. Damages of N20,000 for trespass committed on the Plaintiffs land by the Defendants.
4. Damages of N1 00,000 for defamation of character resulting from the action of the Defendants who presented the Plaintiff to the public as a debtor and thereby cause him embarrassment whereby he sustains disaffection and spite by well meaning members of the public.’

The case of the respondent at the trial court was that the appellants pasted an Auction Notice on his property when he was in no way indebted to the 1st appellant. It was his contention that the action of the appellant amounted not only to trespass but also to defamation of his character. He gave evidence on his own behalf and called a witness, Ayodele Akinbiyi who gave evidence that he saw the Auction Notice which did not have the name of the respondent but had the name of one Oshinowo as the debtor.

He said that as a result of the notice he avoided contact with the respondent. The 1st appellant gave evidence through the 2nd appellant that they mistakenly pasted the Auction Notice on the property in question.

The learned trial Judge in his judgment found as a fact that the respondent was not in possession of the property in question at the time the Auction Notice was pasted but one M r Adeyeri who had bought the property. He therefore dismissed the claim for trespass. He however found the libel proved and awarded N20, 000 damages against the appellants in favour of the respondent. He also made an order of perpetual injunction restraining the appellants from future violation of the respondents rights to the property and publication of offensive material. The appellants were dissatisfied with the judgment and appealed to the Court of Appeal, Ibadan Division which granted the appellants leave to argue the appeal on their brief alone as the respondent failed to file a brief. The Court of Appeal dismissed their appeal on the 23rd May 2002. The appellants still dissatisfied further appealed to this Court and the learned counsel for them filed an amended brief and identified 4 issues for determination as follows:

i. Whether the lower court was right in holding that the respondent was still the owner who was presumed to be in possession of the uncompleted building on which the alleged Auction Notice was pasted after admitting during the trial that he had sold it to one Mr. Olu Adeyeri. (Covers grounds 1 & 3).

ii. Whether the lower court was right in holding that the Respondent was entitled to both damages for trespass and injunction after the dismissal of the claim for trespass by the trial court. (Covers ground 2.)

iii Whether the lower court was right in holding that the appellants did not proffer arguments on submissions on issues No.1 and 2(sic) formulated for determination And therefore deemed same abandoned. (covers ground 6)

iv. Having regard to the pleadings, the evidence led in support and documents tendered from the record, whether or not the lower court was right in dismissing the appellants (sic) appeal’ The learned counsel for the respondent filed a brief in which he adopted the issues formulated by the appellants. The appellants filed a reply brief.

On the first issue the learned counsel for the appellants submitted that the respondent pleaded that he had sold the property in question and given possession to one Mr. Adeyeri when the offensive Auction Notice was pasted on the land. It was on that basis that the trial court dismissed the claim for trespass. He argued that the Court of Appeal was wrong to hold that the respondent was still in actual or physical possession of the property since the process of transfer to Mr Adeyeri had not been completed. He accused the lower court of making a case of its own outside the evidence on record, and relied on the .case of Adeniji V Adeniji (1972) 4 SC 10 in which Udo Udoma JSC at page 17 said: ‘It will not be competent for the court to make a case of its own or to formulate its own case from the evidence before it and thereafter to proceed to give a decision based upon its own postulate quite contrary to the case of the parties before him’.

In reply to this issue the learned counsel for the respondent submitted that the trial Judge found as a fact that the respondent was still the owner of the house at the time the offensive Auction Notice was pasted. The appellant did not appeal against this finding of fact, which in his submission still stands as affirmed by the Court of Appeal. He submitted that there is nothing perverse in this finding. This issue turns entirely on pleadings and evidence. All parties and the courts are bound by the pleadings and evidence. See Iheanacho V. Chigere (2004) 17 NWLR (pt. 901) 130 and Akanni V.Odejide(2004) 9 NWLR (pt. 879) 575. The respondents case in the court of first instance is primarily for trespass.

In paragraph 15 of the Statement of Claim the respondent averred as follows: ‘That the plot and the development thereon was eventually sold to one Mr. Isaac Adeyeri of S7/467C Felele Rab Challenge, Ibadan.’

In his evidence at page 38 lines 8 and 9 of the printed record the respondent said:

‘I resolved to dispose it, I did dispose it to Mr. Adeyeri of Exid Battery’ Under cross-examination, he stated as follows:

‘I gave Mr. Adeyeri copies of Exhibits A and A1 in the course of the search he conducted in the Ministry that he paid me N55,000.00. I thereafter took him to the land. I gave him possession. He then instructed a gardener to clear the land. It was while he was in possession that the offensive notice was pasted on the land.’

His evidence tallied with the pleadings that he had disposed of the property. Since he had disposed of the property what was the basis of his action for trespass or any other relief? The trial court rightly dismissed the respondents claim for trespass based on his pleadings and evidence; and the Court of Appeal was wrong in holding that the respondent was still the owner of the property in question and was in constructive possession thereof.

This is no more as the respondent did not cross-appeal to challenge the finding of the trial court that he was not in possession of the land. Further more as that was not the case made out before the trial court; it was not the duty of the lower court to make out its own case outside the evidence and pleadings of the parties. See the cases of Adeniji V Adeniji(1972) 4 SC 10; Dipcharima V Alii (1974) 1 SC 45; Overseas Construction Company Limited V Greek Nigeria Limited & Another (1985) 3 NWLR Pi. 13, 407. I resolve this issue in favour of the appellants. On the 2nd issue, the learned counsel for the appellants submitted that since the trial court dismissed the claim for trespass and the evidence showed that the respondent had disposed of the property in dispute, there was no basis for the order of injunction.

He relied on the case of Udo V Obot (1989) 1 SC 64. I agree with this submission since the respondent with his own mouth said he had disposed of the property in question, there was no justification for granting any order of injunction in his favour. See Nwosu V Otunola (1974) 4. SC 21; Ajuwa V Odili (1985) 2 NWLR Pt. 9, 710. On the 3rd issue, regarding the failure of the lower court to consider issues 1 & 2 in their brief, I am of the view that the issue is now academic having regard to my view on issues 1 & 2 before this Court. It will be a wasteful exercise to delve into it.

On the 4th issue, it is the contention of the appellants counsel that the Notice of Auction which was the basis for the claim in libel was never proved and the respondent also admitted under cross–examination that the Auction Notice did not bear his name but the name of one Mr. Oshinowo. It followed therefore, that the lower courts were wrong in PAGE| 8 finding defamation proved and awarding damages of N20,000 in favour of the respondent He relied on the case of Onu V Agbese (1985) 1 NWLR pt. 4, 704. In reply, the learned counsel for the respondent submitted that the appellants admitted pasting the Auction Notice on the respondents property and there was therefore no need to tender the Auction Notice or plead the exact words used in it in proof of defamation.

The law is trite that to succeed in an action of libel the plaintiff must prove 3 fundamental elements of defamation constructively:

1. that there is the publication of the material complained of by the defendant;
2. That the publication refers to no other person but the plaintiff conclusively;
3. That the publication is defamatory of the plaintiff. See the cases of Sketch V Aiaqbemokeferi (1989) 1 NWLR Pt.100 678; Onu V Agbese (1985) 1 NWLR Pt. 4, 704 and Service Press Limited V Nnamdi Azikiwe 13 WACA 301.

Applying the principles to the facts of this case it is not in dispute that the respondent did not tender the Auction Notice which he claimed was defamatory of him. The fact that the appellant admitted pasting an Auction Notice is not proof of its contents. It was the duty of the respondent to prove the content of the defamatory statement and failure to do so was fatal to his claim for libel. In addition to this, PW2 Mr Ayodele Akinbiyi who was called by the respondent to testify about the defamatory words stated at page 41 of the printed record as follows:

‘When I saw the Auction Notice I moved near it to see its content, I saw the name of Oshinowo as mortgagor and the 1st defendant as mortgagee, as well the 2nd defendant as auctioneer. The plaintiffs name did not appear hence my surprise.’

From the plaintiffs own showing the offensive publication did not refer to him at all. It could not therefore possibly be defamatory of him. For all I have said in this judgment I see a lot of merit in this appeal. The two lower courts were wrong in their judgments in favour of the respondent. Consequently I set aside the judgments of the two lower courts and in their place I dismiss the respondents claim at the court of first instance and the Court of Appeal. The respondent shall pay costs of N50,000 in favour of the appellants.

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SC. 38/2003