⦿ CASE SUMMARY OF:
Fred Egbe v. The Hon Justice J. A. Adefarasin (1987) – SC
– Statute barred;
– Right of Action;
– Cause of Action;
The Hon Justice J. A. Adefarasin
(1987) 1 S.C 1;
(1987) All N.L.R 1;
(1987) 1 NWLR pt 47;
⦿ LEAD JUDGEMENT DELIVERED BY:
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
In this action founded in slander, the Appellant, a legal practitioner resident at 197 Adeleke Adedoyin Street, Victoria Island, Lagos, sued the defendant, the then Chief Judge of Lagos State, claiming N500,000 (five hundred thousand Naira) being general and special damages suffered as a result of the slander of the Plaintiff by the Defendant on the 23rd day of March 1978.
The defence put up by the Respondent were in short: (i) that under section 10 of the Limitation Law Cap. 70 Laws of Lagos State 1973 the action was statute-barred;
(ii) that in fact there was no slander of the plaintiff by the defendant; and
(iii) that the words alleged spoken by the defendant caused plaintiff no damage.
The High Court, per Candide Ademola Johnson, J. (as he then was) dismissed the claim not only on the ground that it was statute-barred but also on the ground that it was totally without merit.
On appeal to the Court of Appeal, that Court (Nnaemeka-Agu, Kutigi and Pepple, JJ.C.A.) upheld the judgment of the High Court and dismissed the appeal.
Appellant has appealed to this Court
1. Whether or not the action is statute barred?
⦿ HOLDING & RATIO DECIDENDI
1. For ISSUE 1, judgement was given in favour of the respondent.
i. Returning to the Appellant’s first reason why his action was not barred by statute, namely, that damage resulting from the slander had not occurred until his membership of the Eagle Lighterage Companies ceased, the evidence on the issue, accepted by the trial judge, should be remembered. It was the evidence of Ayida. In evidence-in-chief, Ayida said: “Plaintiff told me that after this publication that he felt honour bound to withdraw from any business transaction with his colleagues. He then withdrew from Trunen and Eagle Lighterage Companies in which we were both involved.” Under cross-examination. Ayida concluded his evidence thus: “We were in the process of promoting the Company and plaintiff was to take shares and be a Director. He resigned as a director and took no shares. The company was registered. What I want to say was that the Plaintiff resigned as a director of the Companies and informed the board that he could not continue as a shareholder.” Clearly emerging from his evidence is the fact that it was the Appellant who withdrew from the Companies and not that the Companies threw the Appellant out following any slanderous allegation. His withdrawal from the Companies was not dictated by any utterance of the alleged slanderous words. His was a voluntary resignation. And so, his premise that time did not run until he suffered damage was ill-conceived.
ii. It follows that the two reasons given by the Appellant why time could not run against him, and his action could not be statute-barred, cannot apply and must be rejected. The action was clearly caught by section 10 of the Limitation law Cap. 70 Laws of Lagos State 1973 and, therefore, was statute-barred.
⦿ SOME PROVISIONS
Section 10 of Limitation Law Cap 70 of Lagos State reads: “An action claiming damages for slander shall not be brought after the expiration of three years from the date on which the cause of action accrued”.
⦿ RELEVANT CASES
In Philipps v. Philipps & Ors (1878), 4 Q.B.D. 127 at 134 it was held that a plaintiff may rely upon several different rights “alternatively, although they may be inconsistent”.
Equally, in BERDAN v. GREENWOOD (1878), Ex. D. 251 at 255, Thesiger, L.J.. held a defendant entitled to “raise by his defence without leave as many distinct and separate, and therefore inconsistent defenses, as he may think proper.”
⦿ NOTABLE DICTA
Clearly, a defendant is by the Law of pleadings, including in a defamatory action, permitted to plead in the alternative. – Aniagolu, JSC. Egbe v. Adefarasin (1987)
Now this Court as well as the Court of Appeal are appellate Courts. They do not try issues. Rather they examine the way issues had been tried by trial Courts in order to ensure that the case was properly tried. It is thus very necessary to look at the findings of the trial Court on the various issues agitated before it. – Oputa, JSC. Egbe v. Adefarasin (1987)
Before going into the merits of the grounds canvassed in the Brief, it may be necessary to observe that a Brief should as far as it is possible be dispassionate and not emotional, be objective, accurate and clear. In the “Introduction” effort should be made to state the facts of the case on appeal as clearly and as concisely as is consistent with the duty of counsel as a minister in the sacred temple of justice. To this end counsel should not be too personally involved with the case he is briefed to prosecute. A fortiori counsel should endeavor to brief another counsel when cases concern them personally otherwise objectivity and detachment can hardly be maintained. – Oputa, JSC. Egbe v. Adefarasin (1987)
Now let us look at the meaning of cause of action. It is admittedly an expression that defies precise definition. But it can safely be defined as the fact or facts which establish or give rise to a right of action – It is the factual situation which gives a person a right to judicial relief. – Oputa, JSC. Egbe v. Adefarasin (1987)
How does one determine the period of limitation? The answer is simple by looking at the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing that date with the date on which the Writ of Summons was filed. – Oputa, JSC. Egbe v. Adefarasin (1987)
A statute of limitation removes the right of action, the right of enforcement, the right to judicial relief and leaves the Plaintiff with a bare and empty cause of action which he cannot enforce. – Oputa, JSC. Egbe v. Adefarasin (1987)