The Hon. Mr. Justice Kalu Anyah V. African Newspapers Of Nigeria Ltd.(1992)

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OLATAWURA, J.S.C. 

The issue that calls for determination in this appeal is on whom lies the onus of proof as a result of the pleadings. The appellant by his endorsed writ of summons sued the respondent in the High Court of Lagos State for defamation claiming the sum of “N1 million as damages for words falsely and maliciously printed out and published by the defendants concerning the plaintiff and of him in the way of his office as Chief Judge of Borno State in the “Nigerian Tribune” issue of Wednesday 15th August 1984 on page 2 and which words carried the caption “PURGE IN THE JUDICIARY”.

The Statement of Claim was filed along with the Writ of Summons. The statement of Defence was filed and the defence was based on justification.

The plaintiff under Order 26 rule 6(3) of the Lagos High Court (Civil Procedure) Rules applied to the High Court to give directions for trial on the grounds stated therein, to wit:

“I. On the pleadings, the onus lies on the plaintiff to establish only publication, damages and other formal matters:

II. the onus of establishing justification lies on the Defendant and the Plaintiff cannot anticipate the evidence that will be led and counter it in anticipation;

III. the plaintiff must elect to give evidence in rebuttal all at one go either before or after evidence has been led by the Defendant on its plea of justification;

IV. In the circumstances it is in the interest of justice and in accordance with the usual practice in defamation cases to allow the Plaintiff to reserve his evidence in rebuttal till after the evidence of the Defendant in proof of justification where the plaintiff so indicates and where no injustice will be done to the Defendant.”

After counsel on both sides had addressed the learned trial Chief Judge, he refused the application. The plaintiff’s appeal to the Court of Appeal was dismissed by a majority decision of two to one. The plaintiff has further appealed to this Court. In view of the only question or issue raised for determination in this appeal, I deem it necessary for a proper understanding of this issue to set out the grounds of appeal. These grounds read as follows:

“(i) The Court of Appeal erred in law in failing to observe that the provisions of Order 32 rule 11-16 in no way inhibit the inherent and discretionary powers of the court in a libel case to grant the prayers contained in the plaintiff’s motion before the High Court dated 12/2/86.

(ii) The Court of Appeal erred in law in holding that – “By refusing the application the appellant has not been able to show that any injustice has been done to him whatsoever.”

Particulars of Error

It is unconstitutional and against all principles of fair hearing to insist that a person accused of grave misconduct which amounts to crime should first prove his innocence before his accuser is called upon to prove his charges.

(iii) The Court of Appeal misdirected itself in law in holding as follows;