➥ CASE SUMMARY OF:
Ayo Fayose V. Independent Communications Network & Ors. (2012) – CA/AE/58/2010
by Branham Chima (SAL).
Court of Appeal – CA/AE/58/2010
➥ JUDGEMENT DELIVERED ON:
30 March 2012
➥ THIS CASE IS AUTHORITY FOR:
Distilling issues from grounds of appeal;
Notice of preliminary objection in respondent’s brief;
➥ PRINCIPLES OF LAW
⦿ INCLUDING NOTICE OF PRELIMINARY OBJECTION IN BRIEF
‘Thus, a respondent who has any application to make in respect of a pending appeal, can without the leave of this court, raise the objection in a Respondents’ notice in his brief of argument, and proffer argument in support of the objection, in his brief of argument, without necessarily filing a Notice of Preliminary objection, formally. The essence of indicating in the respondents’ brief of argument, a notice of Preliminary objection is to enable the appellant to respond to it in a Reply brief of argument, upon the service of the respondents’ brief of argument on the appellant. The supreme court in Charles Chikwendu Odedo v. Independent National Electoral Commission (INEC) (2008) 7 SCNJ 1 at pg.25, provided a guide as to how a preliminary objection can be raised in a brief of argument. It is to be raised under a conspicuous title or heading of “PRELIMINARY OBJECTION” followed by the grounds of the objection and supported with the argument thereon. Further see. Chief Emmanuel Osita Okereke v. Alhaji Umaru Musa Yar’Adua and Ors (2008) 5 SCNJ 1; Ralph Uwazurike v. Attorney General of the Federation (2007) 2 SCNJ 369 at P.380; Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248. I have perused the Respondents’ briefs of argument dated 14th March, 2011 and at page 3: paragraph 3.00, the NOTICE OF PRELIMINARY OBJECTION was conspicuously given therein; the grounds for the objection were also stated and thereafter the arguments on the preliminary objection were proffered by learned to the respondents. I am therefore satisfied that the notice of preliminary objection, by the respondents, is competent and I shall proceed to consider and determine it.’ — T.S. YAKUBU, JCA.
⦿ TWO ISSUES CANNOT ARISE FROM A SINGLE GROUND OF APPEAL
‘Unarguably, issues No. 1 and 2 were distilled from ground 1, albeit with other grounds of appeal Mr Ajayi for the appellant, had no answer to the contention of Mr. Falana, for the respondents, on this vital issue of law Thus, I take it that he has conceded to it. The law is that a ground of appeal is not to be split into two issues. That is, a ground of appeal is not to carry two issues or put in another way, two issues are not to be formulated from a ground of appeal. See the more recent decision of the Supreme Court in Adekunle Teriba v. Ayoade Tiamiyu Adeyemo (2010) 4 SCNJ 59 at P.67. Thus, whilst one issue for determination is permitted to be distilled from one ground of appeal or two or more grounds of appeal, two issues for determination cannot be distilled from one ground of appeal, otherwise both the issues and the ground of appeal will be liable to be struck out as being incompetent. See: Odoemena Nwaigwe and Ors v. Nze Edwin Okere (2008) 5 SCNJ 256; Yadis Nig. Ltd. v. Great Nigeria Insurance Co. Ltd. (2007) 5 SCNJ 86.’ — T.S. YAKUBU, JCA.
⦿ ISSUE MUST FLOW FROM GROUND OF APPEAL
‘The law is that, an issue for determination must flow from and be supported by a ground of appeal. see Jimoh Garuba v. Isiaka Yahaya (2007) 1 SCNJ 352; Khaled Chami v. UBA Plc (2010) 2 SCNJ 23 at P.36.’ — T.S. YAKUBU, JCA.
⦿ COURT DOES NOT DETERMINE ISSUES THAT ARE INCOMPETENT
The law is that once a preliminary objection succeeds in respect of some issues for determination in an appeal, there will be no need to go further to consider the arguments proffered on those issues formulated for determination which have been found to be infirmed and incompetent. See: Mosoba v. Abubakar (2005) 6 NWLR (Pt. 922) 460; NEPA v. Ango (2001) 15 NWLR (pt. 737) 627 at 645-6 46; Ralph Uwazurike and Ors v. Attorney General of the Federation (2007) 2 SCNJ 369 at p.380; B.A.S.F. Nig. Ltd v. Faith Enterprises Ltd (2010) 1 SCNJ 223 at P.249. — T.S. YAKUBU, JCA.
⦿ THE APPELLATE COURT IS IN A GOOD POSITION TO EVALUATE EVIDENCE AS THE TRIAL JUDGE
Indeed, if there is a complaint that a trial judge did not make findings based on the evidence placed before him, the appellate court is in as good position as the trial court to do its own evaluation of the evidence contained in the records of appeal. See: Narumai and Sons Nig. Ltd v. Niger Benue Transport Co Ltd (1989) 2 NWLR (Pt.106) 730. And where the appellate court finds that there are inadequacies on the part of the trial judge in reaching his decision or finding that is perverse, the appellate court has a duty to examine the inferences and conclusions drawn by the trial judge and then re-evaluate the evidence in order to come to its own judgment, to see that justice is done. See: Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360; Eki v. Giwa (1977) 2 SC, 131; Lion Building Ltd v. Shadipe (1976) 12 SC 135. — T.S. YAKUBU, JCA.
⦿ WHAT IS A PERVERSE FINDING?
A perverse finding is when it runs against and counter to the evidence led and the pleadings of the parties or where it has been shown that the trial judge took into consideration or account of matters which he ought not to have taken into account or shuts his eyes to the obvious. See: Akinloye v. Eyiola (1968) NWLR 92; Isah Onu and Ors v. Ibrahim Idu and Ors (2006) 6 SCNJ 23 at Pg. 45-46. — T.S. YAKUBU, JCA.
⦿ EXCLUDING PAGES FROM RECORD OF APPEAL IS CHILDISH
I should say a word on the records of appeal transmitted to this court on 28th September, 2009. It surreptitiously, did not contain the pages in the records of proceedings of the trial court on 13th June, 2006 when the appellant was cross-examined by Mr. Femi Falana, for the defendants/respondents. And if not for the compilation of the Additional Records of Appeal at the instance of learned counsel to the respondents, this court could have been denied the truth of the existence of the cross examination of the appellant on this matter. It is tantamount to trying to cover the sun or the moon with one’s finger. But nothing can be done against the truth, but for the truth. It is sad that a game of hide and seek usually associated with little children can be played by adults, to this court. It is reprehensible and unacceptable. I say no more. — T.S. YAKUBU, JCA.
⦿ INGREDIENTS TO PROVE LIBELOUS PUBLICATION
In proof of a libelous publication or to sustain an action for libel, the plaintiff must prove that: (a) There was a publication. (b) The publication was false. (c) The publication was in writing. (d) The publication was made to a person apart from the plaintiff and the defendant. (e) The publication referred to the said plaintiff. (f) The publication was made by the defendant. See Iloabachie v. Iloabachie (2005) 4 FWLR (Pt.281) 469 SC at 511, Paras. E-F; Guardian Newspaper and Anor v. Ajeh (2011) 1 LPELR-SC. 234. — S.D. West, JCA.
⦿ ACTUAL DEFAMATORY WORDS MUST BE STATED IN THE PLEADINGS
More so, it is of necessity in an action for defamation either libel or slander, that the actual words complained of and not merely their substance must be set out verbatim in the statement of claim. It is on the perusal of the actual words complained of as pleaded that the court will determine whether or not the words convey defamatory meaning. Failure to plead such actual words is fatal to the plaintiff’s case. See. Olaifa v. Aina (1993) 4 NWLR (Pt286) 192; Okafor v. Ikeanyi (1979) 1 NWLR (Pt. 100) 678; Olaniyi v. Elero (2008) All FWLR (Pt.411) 975 at 986 Paras C-E. — S.D. West, JCA.
⦿ EFFECTS OF DEFAMATORY STATEMENTS TO BE PROVED
Similarly, the tort of defamation has to do with injury to the reputation of a person resulting from words written or spoken by others against him. A defamatory statement has the following effects: (a) To lower the plaintiff in the estimation of right thinking members of the society generally; or (b) To expose him to hatred; contempt or ridicule; or (c) To cause other persons to shun or avoid him; or (d) To discredit him in his office, trade or profession; or (e) To injure his financial credit. Thus, to succeed in an action for libel, the plaintiff, must establish the aforementioned as the effects of the defamatory publication of him. See Olaniyi v. Elero (Supra) at 983 Paras A-C. … Generally, the onus is on the plaintiff to show that the published words complained of are defamatory or that they convey a defamatory imputation. However, where the words complained of are defamatory in their natural and ordinary meaning, the plaintiff has no legal duty to lead any evidence to show additional defamatory meaning understood by persons possessing some particular facts. — S.D. West, JCA.
⦿ JUSTIFICATION IS A DEFENCE TO DEFAMATION
Defamation however, is not without a defence. Justification is a complete and a veritable defence to an action for libel or slander, that the defamatory imputation is true. Simply put, the truth of the imputation is an answer to the action because the law presumes that the plaintiff has no right to a character free from that imputation, and If he has no right to it, he cannot in justice recover damages for the loss of it. He is not entitled to benefit from the loss of a reputation he is not entitled to. See Iloabachie v. Iloabachie (Supra) at 517 paras A-D; Amorc v. Awoniyi (1991) 3 NWLR (PT. 178), 245. — S.D. West, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Tom Shaibu Yakubu, J.C.A.
⦿ FOR THE APPELLANT
Mr. Owoseni Ajayi.
⦿ FOR THE RESPONDENT
Mr. Femi Falana.
➥ CASE FACT/HISTORY
On the 19th March, 2009, the High court of Justice, Ado-Ekiti presided over by A.S. Daramora, J., dismissed the action of the appellant who was the plaintiff in the suit No: HAD/81/2004. The plaintiff in that action had claimed the sum of one Billion Naira (1₦bn) as damages against the respondents, for libel published of him and contained in The News Magazine, Vol .23, No.18 Edition of 8th November, 2004 The caption in the said magazine was “My brother is wild and cruel – The shocking Testimony of Governor Fayose’s sister.” one Peter Morakinyo Ogele also, in the said publication, had addressed a press conference wherein he stated in a text thereat, that the appellant had wanted to kill him; which precipitated the action against the respondents.
The parties called witnesses at the trial and at the end of which, written addresses were filed and exchanged between them. The trial court, in its judgment found for the respondents and dismissed the claim. This appeal is sequel to the dismissal of the plaintiff’s action.
➥ ISSUE(S) & RESOLUTION(S)
[PRELIMINARY OBJECTION: SUCCEEDS IN PART]
I. Whether the issues formulated by the Appellant are competent?
RULING: IN RESPONDENT/APPLICANT’S FAVOUR.
A. THE ISSUES 1 & 2 FORMULATED BY THE APPELLANT ARE NOT COMPETENT
[‘Thus, whilst one issue for determination is permitted to be distilled from one ground of appeal or two or more grounds of appeal, two issues for determination cannot be distilled from one ground of appeal, otherwise both the issues and the ground of appeal will be liable to be struck out as being incompetent. See: Odoemena Nwaigwe and Ors v. Nze Edwin Okere (2008) 5 SCNJ 256; Yadis Nig. Ltd. v. Great Nigeria Insurance Co. Ltd. (2007) 5 SCNJ 86. In the circumstances of this appeal, it is crystal clear that issues one and two formulated for determination by the appellant were distilled from ground 1 of the notice of appeal. This is wrong and in consequence, issues one and two, with ground l are liable to be struck out. Furthermore, Mr. Falana submitted that contrary to the stand of the appellant that issue II was formulated from grounds I and IV, the said issue II relates to the question of justification which is not the complaint in either ground I or IV of the notice of appeal. I have myself perused ground 1 of the notice of appeal. The complaint in it is in respect to the reliance on an inadmissible document by the learned trial judge, when the maker of the said document was not called as a witness at the trial. On my perusal of issue II, it clearly seeks to ventilate on the defence of justification by the respondents as found by the trial Court. Therefore, issue II is not in tandem and does not flow from ground 1 of the notice of appeal. The law is that, an issue for determination must flow from and be supported by a ground of appeal. see Jimoh Garuba v. Isiaka Yahaya (2007) 1 SCNJ 352; Khaled Chami v. UBA Plc (2010) 2 SCNJ 23 at P.36. Ground IV of the notice of appeal from where the appellant also formulated issue II, does not seem to provide any support for the said issue II. Ground IV is a complaint against the finding of the learned trial judge that “there is no shred of evidence before me is this matter that the plaintiff, a very popular politician was shunned, hated, despised and ridiculed by right thinking people on the basis of the alleged libel by the defendants.” This, unarguably has no relationship with whether or not the defence of justification was available to the respondents as indicated under issue II. Therefore, again the said issue II has no support from Ground IV of the notice of appeal. So, on all premises, issue II is infirmed and incompetent. In consequence, Grounds I and IV are incompetent, since no valid issue had been formulated from them for determination in this appeal, by the appellant.’
‘It is settled that appeals are considered and determined on the issues raised for determination and successfully canvassed or ventilated by the parties and not on the grounds of appeal simpliciter which generated no valid issues for determination, See: Niger Construction Ltd v. Okingbeni (1957) 4 NWLR (Pt.404) 787; Chief A.A. Adeogun and Anor v. Honourable Fashogbon and 2 Ors (2011) 3 SCNJ 342 at 359. Hence, issue I with grounds I, II, III, and v. are each struck out. So also, issue II being incompetent, for not having emanated from either ground I or IV of the notice of appeal, must be struck out together with the said ground IV which has no valid issue formulated from it for consideration and determination of this appeal. Hence, the said issue II with ground IV are each struck out.’]
[MAIN APPEAL: DISMISSED]
I. Whether the remarks/finding by the learned trial judge at page 110 of the records of appeal relating to the evidence by the appellant that “chicken and eggs from the poultry were on sale and also being exported outside the country, were an obvious lie”, were borne out of the evidence on the records or from the learned judge’s personal knowledge of the appellant?
RULING: IN RESPONDENT’S FAVOUR.
A. THE REMARKS BY THE TRIAL JUDGE ARE BORNE OUT OF THE RECORDS OF APPEAL
[‘I have painstakingly perused the ipse-dixit of the appellant in respect of the poultry farm project and whether or not “chicken and eggs from the poultry were on sale and also being exported outside the country…” See pages 121 and 122 of the Additional Records of Appeal. Hear the appellant, to wit: “You can buy chicken if you want now but the products of the farm are not meant to be consumed locally. A foreigner could also buy chicken in Ekiti State today. As I speak, about 30 Thousand birds are getting to the stage of cropping in Ado-Ekiti, chicken could also be bought at five other centres.” From the above testimony by the appellant regarding the poultry farm project, the latter was a thriving and productive business in Ekiti State. Answering another question under cross-examination, the appellant made a volt-de-face and reversed himself, when he testified that, inter alia: “As of now, the state Government has not made any money from the project because it has not been completed. Despite that I do not know the total amount already paid to the contractor, I am in a position to say I am satisfied with the pace and level of the project.” The clear inference drawn from the latter testimony of the appellant was that the poultry project was yet to be completed. Therefore, he could not be telling the truth in his earlier testimony that chicken were already being produced from the poultry farm and could be purchased by a foreigner in Ekiti State! To my mind, it is against the backdrop of the inconsistent pieces of evidence by the appellant relating to the poultry project which led to the finding by the learned trial judge at P.110 of the records of appeal, to the effect that the appellant was a liar. Hear the learned trial judge, to wit: “I should say here again that the impression which the plaintiff conveyed when he testified before me was that of one who was palpably averse to the truth. He denied the very obvious and invented fictitious stories which were plainly laughable. When he was cross-examined on the status of the poultry business that his government was heavily involved in them, he testified that chicken and eggs from the poultry were on sale and being exported out of this country, an obvious lie.” In my considered opinion, the learned trial judge was within the law and his province, having watched the appellant in the witness box testify and contradicted himself in respect of the poultry farm project, when he rightly found that the appellant was an untruthful and unbelievable witness. The learned trial judge was very modest in his description of the appellant as a liar, not because of the former’s personal knowledge of the appellant, but because of the inconsistent pieces of evidence given by the latter in respect of the poultry farm project.’
‘In the circumstances of this case, the appellant has failed woefully to demonstrate that the finding of the learned trial judge was perverse. To my mind, it would have been perverse if the learned trial judge had said that the appellant was a truthful witness, which he certainly was not. And if a piece of evidence is not true but a lie, the person who gave that piece of evidence is an untruthful witness.’]
‘I am certain and of the firm opinion that issue III has no merits and it is resolved against the appellant. Ground VI of the notice of appeal therefore fails. The appeal is devoid of merits and I accordingly dismiss it. I affirm the judgment of the Ekiti State High Court on Suit No: HAD/81/2004, delivered on 19th March, 2009. I award cost of ₦50,000.00 only against the appellant, in favour of the respondents.’
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ TRIAL JUDGE MAKING FINDINGS AND DECISIONS AT JUDGEMENT WRITING STAGE
Melford Agala and 9 ors v. Chief Benjamin Okusin and 3 Ors (2010) 4 SCNJ, 1 at p.18 where my Lord Mukhtar, JSC, succinctly restated the law, that: “A trial judge at the stage of writing a judgment and making findings and decisions, appraises the evidence of each side of the divide, and give the evidence of each side the probative value it deserves before arriving at a just conclusion of the case. In the process of doing so he determines which of the relevant evidence to believe, whether they are contradicted or not because he had the singular advantage of listening and watching the demeanour of the witnesses.”
➥ REFERENCED (OTHERS)