PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment):

This Appeal is against the Judgment of the Imo State High Court contained in the judgment of U. D. UGWURUIKE, J. delivered on the 28th day of March, 2012.

The Respondent, Chief Godwin Anaejionu who is a native of UMUAGHARA OBIBII in NGURU NWEAFOR AUTONOMOUS COMMUNITY in Aboh Mbaise Local Government Area of Imo State sued the following persons at the lower court viz:
 

1.  IWUAGWU PETER NWANERI

2.  DONATUS I ONYUKWU

3.  CHRISTIAN ONYENWE And      

4.  NDUBUISI JOSEPH MARY NJOKU

Claiming as follows:

"The Plaintiff's claim is for:

"The sum of N8, 000, 000 (Eight Million Naira) damages against the Defendants jointly and severally for defamation of his character, reputation, credit and person.

C.      An order of Injunction restraining the Defendants jointly and severally and their agents or privies from further defamation of his character, reputation, credit and person.

It must be stated however that the claim was modified in paragraph 22 of the Respondent's Statement of Claim wherein he claimed thus:

"22.   The Plaintiff has been injured and his reputation, office, trade, possession and financial credit damaged by the malicious and false publication and therefore claim from the Defendants jointly and severally as follows:

a)      The sum of N8,000,000 (Eight Million Naira) General Damages for defamation or libel.

b)      An Injunction restraining the Defendants and their agents and privies from further Defamation of the Plaintiff's Character and reputation and credit." (Pages 3 -8) of the Record.

The four Defendants filed joint Amended Statement of Defence. Two of the Defendants namely IWUAGWU PETER NWANERI and DONATUS I. ONYEKWU were reported dead in the course of the hearing of the matter at the lower court and their names were struck out leaving the two Appellants herein.

At the trial, the Respondent as Plaintiff's Witness gave evidence in support of this case and called two other witnesses. The Appellants' first witness was Donatus I. Onyukwu who died before the conclusion of his Cross Examination.

The 2nd Appellant then testified as D.W 1 after the evidence of Donatus I. Onyukwu had been expunged from the Record on the application of Respondent's Learned Counsel C. I. Ugwoji Esq without any objection from the Appellant's Learned Counsel D. O. Nwalor Esq.

After the adoption of Final Written Addresses from Learned Counsel to the parties, the learned trial Judge gave a considered judgment on 28th day of March, 2012. On page 127-128 of the Record of Appeal the learned trial Judge held:
 

"In the final analysis and in the light of the foregoing, I hereby enter judgment in favour of the Claimant against the Defendants and order as follows:
 

1)      The Defendants jointly and severally shallforth with pay to the Claimant the sum of N1,000,000 (One Million Naira)  being damages for libel.

2)      The Defendants by themselves or by their agents and privies are hereby restrained from further defamation of the Claimant's character, reputation and credit.

The Defendants shall pay costs to the Claimant which I asses and fix at N8,000 (Eight Thousand Naira)."

The Appellants were dissatisfied and Appealed against the said judgment vide their Notice of Appeal dated 30th day of March, 2012 and filed on 2nd day of April, 2012. It contained two Grounds of Appeal. The Appellants filed another Notice of Appeal dated 28th day of May, 2012 on 1st day of June, 2012 containing fourteen (14) Grounds of Appeal.

The Appellants have on page 5 of their Appellants' Brief of Argument abandoned the Notice of Appeal filed on 2/4/2012 dated 30th day of March, 2012 and have now argued the Appeal on the Notice of Appeal dated 28th day of May, 2012 and filed on 1st day of June 2012. The said fourteen grounds of Appeal without their particulars are as follows:

"3. GROUNDS OF APPEAL

GROUND ONE: ERROR IN LAW

The Learned Trial Judge erred in law by holding that paragraph 18 of the 2nd Appellant's Witness Statement which he adopted on oath in the witness box at the trial left the court to speculate as to whether or not the denial of paragraphs 16 and 18 in that deposition is referable to paragraph 16 and 18 of the statement of claim.

GROUND TWO: ERROR IN LAW

The Learned Trial Judge erred in law by holding that the deposition of the DW1 (Ndubuisi Joseph Mary Njoku) which is adopted by him as his evidence in the case contained mere sweeping, unsubstantiated statements apparently geared to draw the court to the field of speculation.    

GROUND THREE

The Learned Trial Judge erred in law by holding that the issues for determination in the suit are:

"(1)   whether the claimant has proved that the alleged words are defamatory of him.

(2)     whether the claimant is entitled to the relief claimed.

GROUNDS FOUR: ERROR IN LAW

The Learned Trial Judge erred in law by holding that the evidence of the PW1 was not damaged by the Defence under Cross-Examination.

GROUND FIVE: ERROR IN LAW

The Learned Trial Judge erred in law by holding that the PW2 and PW3 also told the court that the content of the publication lowered their estimation of the Claimant and caused them to shun him at the time.

GROUND SIX: ERROR IN LAW

The Learned Trial Judge erred in law by holding that "I believe the Claimant's evidence that the publication in Exhibit "J" concerning him are completely false. I hold that the ordinary meaning that a reasonable man will give to the said published words is that the Claimant is a notorious political [tout], a man that has no means of livelihood, a criminal and an instigator, a trouble shooter and an irresponsible person given to instigating trouble where bloodshed would result. I hold further that the said offensive words or publication in Exhibit "J" refer to Claimant and is capable of a defamatory meaning and it is indeed and in fact defamatory of the Claimant."

GROUND SEVEN: ERRORS IN LAW

The Learned Trial Judge erred in law by holding that paragraph 20 of the deposition of the DW1 and paragraph 19 of the Statement of Defence admitted publishing Exhibit "J" by implication.

GROUNDS EIGHT: ERROR IN LAW

The Learned Trial Judge erred in law by holding that the submission of counsel to the Appellants which was made in the alternative is an implied admission of the publication of Exhibit "J" by the Appellants.

GROUND NINE: ERROR IN LAW

The Learned Trial Judge erred in law by holding that the Claimant proved and established publication and that the defamatory matter was published to many persons other than the Claimant.

GROUND TEN: ERROR IN LAW

The Learned Trial Judge erred in law by holding that the Appellants did not prove qualified privilege and by placing the burden on the Appellants to prove qualified privilege.

GROUND ELEVEN: ERROR IN LAW

The Learned Trial Judge erred in law by holding that the Respondent proved his case at the trial.

GROUND TWELVE: ERROR IN LAW

The Learned Trial Judge erred in law by awarding the sum of N1,000,000.00 (One Million Naira) in favour of the Respondent and against the Appellants.

GROUND THIRTEEN: ERROR IN LAW

The Learned Trial Judge erred in law by relying on Exhibit "J" in reaching a decision against the Appellants and by believing PW1, PW2 and PW3.

GROUND FOURTEEN

The judgment is against the weight of evidence.

The Appellants filed their Brief of Argument in this Appeal on 22nd day of April, 2013. It is dated 19th day of April, 2013. The Respondent's Brief of Argument dated 21st day of May, 2013 was filed on 9th day of July 2013.

The Appellants filed Appellant's Reply Brief dated 30th day of July, 2013 on 6th August, 2013. The Appeal was heard on 3rd day of December, 2013 when the Learned Counsel to the parties adopted their respective Briefs of Argument. The Appellants' Learned Senior Counsel D. C. DENWIGWE, S.A.N, formulated six issues for determination namely:

a.       Whether the construction which the trial Court placed on paragraphs 16, 18 and 20 of the deposition and the evidence of the DW1 generally and paragraph 16 and 18 of the Appellants Pleadings is justified (Grounds 1, 2 and 7).

b.       Whether the trial court was right when it held that the only issues for determination at the trial are:-

"(i)     Whether the Claimant has proved that the alleged words are defamatory of him?

(ii)     Whether the Claimant is entitled to the relief claimed? (Ground 3 and 9)?"

c.       Whether the construction and reliance which the trial court placed on Exhibit "J" is justified? (Ground 6)

d.       Whether the trial court was right by holding that the submission of counsel to the Appellants which was made in the alternative is an implied admission of the publication of Exhibit "J" by the Appellants (Ground 8)

e.       Whether the trial court was right by holding that the Appellants did not prove qualified privilege (Ground 10)

f.       Whether the Respondent proved his case at the trial? (Ground 4, 5, 11, 12, 13 and 14)

The Learned Counsel to the Respondent C. I. Ugwoji Esq., distilled two Issues viz:
 

1.       Whether the trial court was right by holding that the Appellant did not prove qualified privilege.

2.       Whether the Respondent proved his case at the trial.

I am of the view that having regard to the facts relating to this Appeal and in particular the Grounds of Appeal filed, the issues for determination are the following namely:

1.       WHETHER THE RESPONDENT PROVED HIS CASE AT THE TRIAL (GROUNDS 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 14)
 

2.       WHETHER THE TRIAL COURT WAS RIGHT IN HOLDING THAT THE CLAIMANT IS ENTITLED TO THE RELIEFS CLAIMED (GROUND 12 & 13)

ISSUE ONE

WHETHER THE RESPONDENT PROVED THIS CASE AT THE TRIAL

The Learned Senior Counsel D.C. Denwigwe, S.A.N for the Appellants referred to the pronouncement of the Learned trial Judge on pages 121-122 of the Record on paragraphs 16, and 18 of Appellants' Pleadings.

That the trial Court was wrong in presuming and coming to the wrong conclusion that the Pleadings contained in those paragraphs were merely sweeping and unsubstantiated. That the trial Court ought to have dealt with the totality of the evidence and the parties' case and not to look at the defence in isolation. That Respondent gave oral evidence even though he never filed a Written Deposition for himself. That by Order 32 Rule 1(3) of the Imo State High Court Rules the 1st DW did the right thing by adopting his Written Deposition on Oath. That the comments of the trial Judge gave the impression that DW1 was wrong in adopting his Written Statement on Oath that the trial Court owed it a duty to accept and act on the deposition as evidence that supports the Appellant's case.

The Learned Silk submitted that it is also wrong for the Learned trial Judge to rely on paragraphs 19-20 of the Amended Statement of Defence in coming to the conclusion that the Appellants had admitted publishing the offensive letter Exhibit "J"

That throughout the Cross Examination of DW1, he was never asked question on Exhibit "J" and was not shown Exhibit: J" so as to own up any signature on it or to deny it. He relied on pages 75-78 of the record and pages 80-84 of the record. That the DW1 denied writing Exhibit J.

That for inexplicable reasons, the Respondent's Learned Counsel at the Court below applied that the evidence in chief of the DW1 be expunged; on the ground that he was not cross examined before his death. That it was a misrepresentation of the record as the Learned trial Judge did not cross check his record. That the witness was vigorously cross examined. Learned Silk acknowledged the fact that the Learned Counsel to the Appellant at the lower Court did not object to the expunction of DW1's evidence.  

The Learned Silk for the Appellant stated that what was expunged was the Evidence-in-Chief and Not the Cross Examination of DONATUS ONYUKWU (reported dead) who gave evidence as Original DW1.

That the cross examination revealed that the privileged occasion of their letter complained to persons who had a duty, legal, social and moral to receive the complaint.

That the evidence cast the burden upon the Respondent to prove that Exhibit 'J' is the letter which the Appellant wrote. That Respondent cannot discharge that burden without

(i)      demonstrating that the Appellants actually published the letter to that named source.

(iii)    Showing that Exhibit J is actually a true copy of that letter.

He relied on the case of SALUDEEN VS MAMMAN (2000) 14 NWLR (Pt. 686) 63 at 85 G-H. That the Respondent ought to have proved that the letter Exhibit J was received or given to PW2 and PW3. He relied on OBAKPOLOR VS OYEFESO (1997) 6 NWLR (PART 508) 256 at 273 A-F.

That the new DW1 was also not confronted with Exhibit J and that Exhibit J is not an original copy of any letter.  That it is not a duplicate but a photocopy allegedly made by a person in Abuja who was never named or called as a witness so as to make him available for Cross Examination, as to who he or she is and the person who published Exhibit J to him or her. And to know whether he or she is a member of "the Ofeama Development Union Abuja"

That some of the friends the Claimant pleaded were not called or named.  
That the source of Exhibit "J" are "Some of his friends in Abuja"
That hearsay evidence does not cease to be hearsay because it is printed. That Exhibit "J" is documentary hearsay which according to learned silk is statutorily inadmissible. He relied on following cases viz:

See OSUOHA vs. THE STATE (2010) 6 NWLR (Pt. 1219) 364 at 401-402 H-G and 400 C-F.

OPAYEMI vs. THE STATE (1985) 2 NWLR (Pt. 5) 101 at 108-109.
BUHARI vs. INEC (2008) 19 NWLR (Pt. 1120) 246 at 396 C and 386 SALAWU OLUKADE vs. ALABODE (1976) 2 SC 183.

OLANLOYE vs. FATUMBI (1999) 8 NWLR (Pt. 614) 203

A-G LEVENTIS (NIG) PLC vs. AKPU (2007) 17 NWLR (Pt. 1063) 416.

On the duty to construe Pleadings as a whole the Learned Silk referred to (1) BUHARI vs. INEC (Supra) at 421 C- H.

(2)     EIGBE vs. N.U.T (2006) 16 NWLR (Pt. 1005) 244 at 258 C - H, 258 -259 H - A. And

(3)     NGIGE vs. OBI (2006) 14 NWLR (Pt. 999) 1 at 117 E - H and 142 C - F.

That a Defence in the alternative will only arise if the substantive defence fails and that it does not deprive the party the benefit of the principal defence. This court is urged to decide the issue in favour of the Appellants.

 
In response to the submissions of the Appellants on Issue 1, the Learned Counsel to the Respondent stated that the comment made concerning paragraphs 16, 18 and 20 of the Amended Statement of Defence of the Appellants was not unfair nor is it a wrong presumption. That the comment did not affect the judgment of the trial Court as the Court rightly presumed the paragraphs to be that of the Claimant being denied by Appellants in their Pleadings. That what the judge said is that the evidence of DW1 was a mere reproduction of the Statement of Defence which was not explained and supported by evidence to prove the deposition of DW1. That the Appellants are merely attacking mere observation and comments of the Judge and not the substance or merit of the case or judgment. That there was no specific denial of Exhibits J and K by the Appellants in their Amended Statement of Defence and the deposition of DW1 on pages 12 and 34 of the Record. That the Appellants admitted those Exhibits. That what they are denying is the construction placed on Exhibit "J" by the lower Court that the Appellants did not lead evidence to substantiate their allegations or assertions contained in paragraphs 16, 18 19 and 20 of their Statement of Defence. That he who asserts must prove. He relied on the cases of

1.       ONYEKA ONWU vs. EKWUBIRI & ORS (1966) ALL NLR 34

2.       BALOGUN vs. SHITTA LABIRAN (1988) SCNJ 71 at 72

3.       PHARMACIST BOARD OF NIGERIA vs. ADEGBESOTE (1986) 10-11 SC 97 at 120.

4.       AKIN OMOBORIOMO vs. AJASIN (1984) 1 SC 206 at 207.

That it is not enough to merely reproduce Statement of Defence. There must be evidence to support it.

He relied on the evidence of PW2 who said on page 54 of the Record that he was the Chairman of Aladinma and that the Appellants never held any executive position in ALADINMA OF OFEAMA OBIBII NGURU. That Exhibit J was an impersonation by Appellant and never came from the Aladinma Executives. That the trial Judge was right in his findings and conclusions.

That the issue of who signed Exhibit J was not in issue. That the DW1 never denied his signature on Exh. "J"; that since he never denied the signature when issues were being joined, there was no need to confront him with the signature on Exhibit "J". That the signature of DW1 is on Record before the court and it could be compared with signature on Exhibit J. That he signed his Witness Statement on Oath and that the issue of signature was too late in the day. He relied on Section 101 of the Evidence Act and the cases of OGHENEONU vs. FEDERAL REPUBLIC OF NIGERIA (2013) ALL FWLR (Pt. 667) 704 at 732-733.

On evidence on pages 75-78 of the Record of Appeal, Ugwoji Esq., submitted that reliance placed on the evidence which belonged to original DW1 is misleading and calculated to deceive the court. That the evidence was totally expunged from the record and that any reliance on it goes to no issue.

He submitted that whether the trial Judge made a slip or not in expunging the evidence of former DW1, the facts remained that the totality of the evidence had been expunged and that cross-examination cannot stand on evidence-in-chief that has been expunged from the record. He relied on page 88 paragraph 3 of the record.

On the issue of publication of Exhibit "J" the Learned Counsel submitted that Respondent, from the record, proved the publication even though there was no burden on him to prove what have been admitted and not in issue. That the Appellants in paragraphs 13, 14, 15, 16, 17 and 19 of their Statement of Defence admitted the publication claiming privilege, reasons for the publication, that it is a mere crying out to persons in authority.

According to Learned Counsel, the issue of publication had been settled in the Pleadings and that the trial court gave adequate consideration to the meaning conveyed by Exhibit "J" and considered the defence of privilege raised by the Appellants. He urged this Court not to disturb the findings and conclusion of the learned trial Judge.

Now by the Imo State High Court (Civil Procedure) Rules 2008 Order 32 Rule 1(3) thereof, a party is expected to prove facts pleaded in his or her pleading and Witness Statement on Oath by entering the witness box, sworn to testify and then adopt under Examination-in-Chief, his Witness Statement on Oath which is an embodiment of facts pleaded in the pleadings of the party concerned save that it is on Oath. Upon adoption of the Witness Statement on Oath, all that is contained in the said Witness Statement on Oath becomes the witness's evidence before the court.

If there are documents to be tendered he will tender them subject to conditions for admissibility provided in the Evidence Act or other relevant enactment. The witness will then be handed over to his adversary for Cross- Examination on his evidence as adopted. See DR. OLUSEGUN AGAGU Vs RAHMAN OLUSEGUN MIMIKO & ORS (2009) 7 NWLR (Pt. 1140) 34 at 424 E-H to 425 A where ABDULLAHI President Court of Appeal (Rtd) had this to say:

"The contention of the learned senior Counsel for the appellant that no modicum of oral evidence in chief was produced on the documents is erroneous. The provisions of the Election tribunal and court Practice Directions dispensed of oral evidence-in-chief. The witnesses are to enshrine their evidence-in-chief in depositions which will be adopted at the trial by the deponents who will then be cross-examined and be re-examined. See Paragraph 4(1) and (3) of the Practice Directions which provides as follows:  

"4(1) Subject to any statutory provisions or any provisions of these paragraphs relating to evidence any fact required to be proved at the hearing of a petition shall be proved by written deposition and oral examination of witnesses...

(3)     There shall be no oral examination of a witness during his Examination-in-Chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or other exhibits referred to in the deposition."

 It is clear from the foregoing provisions of the Election Tribunal and Court Practice Direction, that facts are receivable in evidence by Witness' Statement and viva voce examination of the witnesses.

After leading a witness to adopt his statement, he can then be cross-examined and re-examined viva voce."

It is easily inferable to know that "paragraphs 16 and 18 are denied" to which reference and comments were made by learned trial Judge concerning Witness Statement on Oath of new DW1 can only mean paragraphs 16 and 18 of the Statement of Claim. The whole of the facts pleaded in the Amended Statement of Defence became evidence and defence of the Appellants to the Respondent's averments in the Statement of Claim upon the adoption of WITNESS STATEMENT ON OATH OF NDUBUISI JOSEPH MARY NJOKU. That is the evidence in support of Appellants case. Whether it is substantiated or not is a matter of evaluation and belief or disbelief of same by the trial court.

A careful reading of the Witness Statement on Oath makes it clear what the Appellants are or were referring to are facts pleaded by Claimant in his Statement of Claim. There is no speculation in there. The Claimant had pleaded in paragraph 19 of his claim thus:

"The Defendant published the document maliciously and falsely to injure the Plaintiff and exposed him to ridicule and contempt and to lower his estimation to these persons they published it to namely:

a.       The Chairman of Aboh Mbaise

b.       The DPO, Aboh Mbaise

c.       The Ministry of Land, Survey and Urban Development, Owerri

d.       The Central Police Office Owerri

e.       The Ofeama Development Union, Abuja

f.       The Ofeama Development Union, Lagos

g.       Aladinma Umuezi

h.       Aladinma Obokwu

i.        Aladinma Ngali

j.        The Parish Priest of St. Anne's

k.       The Parish Priest of Holy Trinity Obibii

l.        Chief Dr. J. A. Iroegbu

m.      Rev. Fr. Dr. Cletus Ogu"

And Appellants by paragraph 16 of the Amended Statement of Defence pleaded in reply to the said Statement of Claim in their own paragraph 19 thereof thus:
 

“Paragraphs 16 to 18 are denied. The Defendants have never set out to tarnish the image or any reputation of the Plaintiff. Instead, the Plaintiff duly cry out to officers and persons who occupy social, religious, cultural, moral and governmental positions over matters which pertain to the Plaintiff and the Defendants equally. All the persons pleaded in Plaintiff's paragraph 19 occupy such standing.”

In effect there is nothing sweeping or speculative in the evidence of the DW1. The learned trial Judge should only have concerned himself with what weight or value the pieces of evidence given by DW1 commanded in his view.

The Appellants have also complained that the learned trial Judge did not make use of the evidence of DONATUS I. ONYUKWU who was the original DW1 in the case but whose evidence was expunged from the Record by the Learned trial Judge upon application of Claimant's Learned Counsel which was not opposed by Learned Counsel to the Appellants at the court below. The circumstances leading to the expunging his evidence can be found on pages 79 of the Record thus:
 

"RESUMED AT ABOH MBAISE ON MONDAY 26TH JULY, 2010
BEFORE HIS LORDSHIP HON. JUSTICE U. D. OGWURIKE

Suit No. HAM/17/2006

Parties present except 1st and 2nd Defendants.

C. I. UGWOJI Esq. for the Claimants.

D. O. Nwalor Esq. for the Defendants. He states that it is for continuation

of cross examination of D.W.1. He states that 1st and 2nd Defendants are dead and applied that their names be struck out.

Counsel for the Claimant does not object.

Court: In view of the Application of learned counsel for the Defendants that the names of the 1st and 2nd Defendants on Record be struck out because they are dead, the names of the said 1st and 2nd Defendants that is Iwuagwu Peter Nwaneri and Donatus I. Onyukwu are hereby struck out. He states that he applies for adjournment to field next witness.

Counsel for the Claimants applies that the evidence in chief of Donatus I. Onyukwu be expunged now that he is dead. Counsel for the Defendants does not object.

Court: In view of the fact that the D.W.1 Donatus I. Onyukwu is dead and he was not cross examined before his death, the Application of counsel for Claimant that the evidence in chief of the said Donatus Onyukwu be expunged is granted as prayed; the said evidence in chief is hereby expunged. On agreement of counsel, this case is adjourned to Monday 25th October and Monday 6th December 2010 for continuation.

(SGD.) U. D. UGWURIKE

JUDGE
26/7/2010"

I must state that where a witness gives evidence in proceeding whether after Examination-in-Chief or in the course of Cross Examination and died without completing his evidence under any of the two situations, the fact of his death will not render his evidence useless or irrelevant in that proceeding. The Court depending on the circumstances can still accord the evidence of a deceased witness some weight or value. See MAFIDOH OKWA vs. IYERE IWEREBOR & ORS (1969) NSCC 73 at 75 per ADEMOLA, CJN of blessed memory who held thus:

"The law as to the position of a witness who died before cross-examination of his evidence in chief appears to be settled. It is clear that it is accepted that such evidence is legal but the weight to be attached to such evidence should depend upon the circumstance of each case. In Rex v. Doolin: Jebb C.C. 123 where a prosecution witness was taken seriously ill whilst under cross-examination, his evidence was taken into consideration, and the conviction based on it was held good. And in Davies v. Otty (1865) 34 LJ. Ch 252 where a witness gave evidence on 28th August and she died two or three days afterwards so that it was not possible to cross-examine her on her evidence, Lord Romily Master of the Rolls said:-

"..but as there was no impropriety and nothing wrong in examining her, and as she was not kept out of the way to prevent cross-examination, I must receive her evidence and treat it exactly as is should the evidence of any other witness who, from any other cause whatever, either had not been or could not have been cross-examined."

All English authorities as well as Indian authorities on this point were referred to in the Indian case Kuer v. Rajab, All I.R (1936) Patna 34.
 

In our judgment therefore, the Learned Judge was in error when he held that it was fatal for the Plaintiff's case that the learned Magistrate relied on the evidence in chief."

I am of the view that the lower court was misled into expunging the evidence of the original DW1 by both the learned counsel to the Respondent and the learned counsel to the Appellants. The court cannot be blamed. The Appellants as well as their respected Learned Counsel are bound by the order expunging the evidence on pages 75-78 of the Record.

The net effect is that it is as if DONATUS I. ONYUKWU now late, never testified in the action. His evidence thus becomes otiose, irrelevant and no longer of any moment in this Appeal.

On whether the Appellants admitted the publication of Exhibit J as pleaded by the Claimant and as found by the trial judge, I think it is relevant to say that the onus is always on Plaintiff in an action for defamation to prove the publication and that it is in permanent form. He must also establish that the words complained of are referable to him and defamatory in ordinary meaning. See
 

1. SKETCH PUBLISHING CO. LTD & ANOR vs. ALHAJI AZEEZ AJAGBO MOKEFERI (1989) 1 NSCC 346.

2. GUARDIAN NEWS PAPERS LTD & ANOR vs. REV. PASTOR C. I. AJEH (2011) 10 NWLR (Pt. 1256) 574 at 588 D-H to 589 (A) per RHODES VIVOUR JSC who said:
 

"Both courts below found as a fact that the contents of the article published in the Guardian Newspaper on the 3rd of December, 1995 was libelous of the Respondent. Libel is statement(s) in written form which causes a person to be exposed to hatred, ridicule or contempt, i.e. to be shunned or avoided and to be lowered in the estimation of right thinking people in the society. Put in another way to be disparaged in his profession or trade. The tort of defamation is either libel or slander, the difference being that the former is written while the latter is spoken.

The essential ingredients of libel are:

1.       The words complained of must have been written;

2.       The publication must be false;

3.         The words must be defamatory or convey defamatory imputation;

4.       The words must refer to the Plaintiff;

5.       It must be the Defendant who published the words;

6. The onus is on the Plaintiff to prove he was the one referred to in the alleged libel

In case of libel, pleadings are of tremendous importance, and so the Plaintiff who claims that an article is libelous of him must reproduce the whole article verbatim or the particular passage he complains of his pleadings. No matter how long the article is, it must be reproduced.

See D.D.G.A. Pharmaceuticals Ltd. v. Times Newspapers Ltd. (19973) 1 QB p 21 relied on by this Court in Okafor v. Ikeanyi and Ors (1979) 12 NSCC p 43, (1979) 3-4 SC 99. Issue No. 1 questions whether the provisions of Order 9 rule 4 of the High Court of Anambra State Rule 1988, were properly construed in view of the judgment of this court in Okafor v. Ikeanyi (supra) that the full text of the publication or any part of it companied of must be set out verbatim in the pleadings."

The Respondent pleaded in paragraphs 16, 17, 18 and 19 of his Statement of Claim as follows:

16.     That the Defendants in their bid and aim to injure, tarnish, damage, discredit the Plaintiff's reputation, character, political life, trade, credit and estimation, wrote and published a document or letter captioned "save us FROM BLOOD BATH" dated October 31, 2005 which publication or letter/document is calculated to lower and indeed lowered the Plaintiff person in the estimation of his community, which include political groups, business Associates and Religious Associates. The publication caused him to be avoided, shunned and exposed him to hatred, contempt and ridicule. A copy of the said letter or document of 31/10/2005 is hereby pleaded. The Plaintiff has a photocopy of the publication which he obtained from one of those it was published to and shall rely on that and gives the Defendants notice to produce the original.

17.     The entire publication in the said document is defamatory but the Plaintiff shall rely strongly on this particular passage of the document or letter thus:

a)      "SAVE US FROM BLOOD BATH"

b)      "For the past one year now since we passed a vote of no confidence on Mr. Cyriacus Ihekoronye's led Aladinma Ofeama administration, heaven has been let loose. The people of Umuaghara, men and women alike, led by their Chairman, one Mr. Theodore Ekechukwu supported by one notorious political tout who has no personal means of livelihood, Chief Godwin Anaejionu, have continued to interfere, to intrude in the affairs of our village and to shoot out trouble capable of causing blood bath in the community."
 

c)       On Friday, the 9th of September, 2005 as early as 6.30am many youths of Umuaghara numbering over 150 led by the notorious Chief Godwin Anaejionu swooped into our village, some armed with weapons. They held a meeting at our village square, made provocative utterances capable of causing the breach of the peace. At the end, Chief Anaejionu addressed them and they all dispersed.
 

d)      That is not all, there is a matter due to go to court now and it was at the instigation of Umuaghara people, particularly their Chairman Mr. Theodore Ekechukwu and Chief Godwin Anaejionu. Our people went to our farm to harvest palm fruits. The Umuaghara group instigated the dissident to attack us in our farm and they did. They overpowered our people and carried all the palm fruits we harvested into the house of one Mr. Uwazie. Then we reported the matter to the person.

18.     That the above passages from the publication is particular in their ordinary and natural meaning, sense and interference meant that the Plaintiff is a man without any means or visible means of livelihood, a politician tout/thug, a notorious person and criminal, a trouble maker, an instigator, a well known criminal, capable of causing blood bath and criminal breach of peace and trouble in the community and conducts likely to cause breach of peace. A person who organizes and unlawfully assembles youths for unlawful purpose and uses them and illegally armed them to carry out criminal activities and cause trouble and breach of peace in the community.

The Appellants in paragraphs 16, 17, 18 and 19 of the Amended Statement of Claim pleaded and responded to the Claimant's allegation as follows:

"16.   Paragraphs 16 to 18 are denied. The Defendants have never set out to tarnish the image or any reputation of the Plaintiff. Instead the Plaintiff duly cried out to officers and persons who occupy social, religious, cultural, moral and governmental positions over the matters which pertain to the Plaintiff and the Defendants equally. All the persons pleaded in Plaintiff's paragraph 19 occupy such standing.
 

17.     The Defendants deny the construction and meanings pleaded the Plaintiff paragraph 18.

18.     The Defendants deny the occasions of publication pleaded in the Plaintiff's paragraphs 20 and 21. The Defendants deny defaming the Plaintiff at all.

19.     The Defendants plead that all statements in whatever form which ever issued from them jointly or severally were made on privilege occasions to persons who have either a social, moral, religious or official duty or obligation to receive same and in good faith."

The Respondent and Appellants testified along the line of the Pleadings. I agree with the learned trial Judge with his finding that by paragraphs 19 and 20 of the Appellants' Amended Statement of Defence that the Appellants admitted publication of the libel complained of by the Respondent as per Exhibit "J".

I am not unmindful of the complaint of the Appellants that Exhibit "J" is not original copy or the alleged libel document because according to them, a copy cannot be admissible.

The law is settled that in both civil and criminal cases that objection to admissibility of a document must be promptly raised at the point of tendering. Where as in this case Exhibit "J" was tendered without any objection from Appellants or their counsel it is too late in the day to complain of any inadmissibility of Exhibit "J". The Appellants have waived their right to complain on its admissibility and the lower court was right in according it weight in arriving at its decision. See CHIEF BRUNA ETIM & ORS v. CHIEF OKON UDO EKPE & ANOR (1983) NSCC 86 at 95-96 per ANIAGOLU, JSC who said:
 

"Turning now to the exhibits (4, 6, to 10) which were not objected to all of them previous proceedings and leases. It is something perplexing to see how counsel could turn round on Appeal (before the Court of Appeal) to complain about the admissibility of a document to which he did not object when it was tendered in the court below in the course of trial.

It is a cardinal rule of evidence, and of practice, in civil as well as in criminal cases that an objection to the admissibility of a document sought by a party to be put in evidence is taken when the document is offered in evidence. Barring some exceptions where by law certain documents are rendered inadmissible (consent or no consent or the parties notwithstanding) for failing to satisfy some conditions or to meet some criteria, the rule still remains inviolate that where objection has not been raised by the opposing party to the reception in evidence of a document(or other evidence see: Chukwura Akunne V. Mathias Ekwuna (1952) 14 W.A.C.A 59), the document will be admitted in evidence and the opposing party cannot afterwards be heard to complain about its admission (see: Alade V. Oluade (1976) 2 S.C. 183 at 188-9; for criminal trials - R. vs. Hammond (1941) 3 All E.R 318; R. vs. Patel (1951) 2 All E.R. 29). Such exceptions would, among others include an

i.        Unregistered instrument required by law to be registered (see: Abdullah Jamal v. Namih Saidi and Another (1993) 11 N.L.R. 86; Elkali and Another v. Fawaz (1940) 6 W.A.C.A. 212; Idowu Alase and Others v. Ilu and Others (1965) N.M.L.R 66);

ii.       Unsigned deed of grant (or copy of copy thereof) (Abdul Hamid Ojo v. Private Adejobi and Others (1978) 3 S.C. 65;

iii.      Unstamped instrument or document requiring to be stamped, unless it may legally be stamped after execution and the duty and the penalties are paid (see: ROUTLEDGE v. MCKAY (1954) 1 All E.R 855 at 856; 1 W.L.R 615 at 617.)

The contention as to the admissibility of those Exhibits to which objection was not raised is clearly misconceived and entirely without substance."
(Underline mine)

Fact admitted requires no further proof See Section 123 of the Evidence Act and the case of MR SUNDAY ADEGBITE TAIWO V. SERAH ADEGBORO & ANOR (2011) 11 NWLR (PART 1259) 562 AT 583 G-H TO 584 A-C PER RHODES-VIVOUR, J.S.C. who said:

"Finally on this point, in the Court of Appeal, Learned Counsel for the Bank and the auctioneer, Mr. Lambo Akanbi (as he then was) agreed that the notice of only one day given by the auctioneer before the auction sale of the property on 17/6/89 was contrary to the requirements of section 19 of the Auctioneers Law.

Section 75 of the Evidence Act states that:

75. No fact need be proved in any civil proceedings which the parties thereto or their agent agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have been admitted by their pleadings. Provided that the court may, in its discretion, require the facts admitted to lie proved otherwise than by such admissions.
 

See CARDOSO V. DANIEL (1986) 2 NWLR (PT.20) P.1. Judicial admissions are conclusive. That is to say where a party agrees to a fact in issue, it is no longer necessary to prove that fact. In effect after an admission no further dispute on the fact admitted should be entertained by the court. This is the strongest proof of the fact in issue."

The Appellants also argued that the learned trial Judge was wrong in holding that the Appellants did not prove qualified privilege. Appellants submitted that qualified privilege is a defence which absolves the Defendant from liability of the publication which is made bona fide to persons who have a duty, legal, social cultural or moral to receive such publication. Reliance was placed on the case of AKOMOLAFE VS GUARDIAN PRESS LTD (2010) 3 NWLR (PART 1181) 338 at 351, 353-338 at 353, - 354 H-B.

The Learned Counsel to the Respondent contended that the Appellants did not prove any defence of qualified privilege.

The law is trite that, a defence of qualified privilege will only avail a defendant in libel suit if he can cumulatively prove or establish two conditions that must co-exist namely;

(a)     There must exist a common interest between the maker of the statement and the person or persons to whom it was made. Reciprocity of interest is therefore an essential element in law of qualified privilege.
 

(b)     the facts relied on by the maker must be true; a mere belief will not sustain the defence.

See: ADEMOLA ATOYEBI VS WILLIAM ODUDU (1990) 3 N.S.C.C. 334 at 345 where OLATAWURA, JSC had this to say

"I now come to the issue of qualified privilege. There must exist, a common interest between the maker of the statement and the person to whom it was made. Reciprocity of interest is an essential element in the law of qualified privilege. Adam v. Ward (1917) A.C. 334. White v. J. & F. Stone (1934) 2 K.B. 827 Pullman v. Hill (1891) 1 Q.B. 528. The facts relied upon by the maker must be true; a mere belief will not sustain the defence. Hedoitch v. Macllwaine (1894) 2 Q C. 54. The question then is: Was Exhibit 7 i.e. the Disclaimer, published so as to set in motion the disciplinary machinery which the statutory body charge with the discipline of member has? From the evidence of P.W.1. P.W.2 and P.W.3 this is not the case. An allegation of professional misconduct implies an offence against the rules and practice of the particular profession. In this case the alleged misconduct can only be sustained after due investigation in which the Appellant accused of profession misconduct was given an opportunity to defend himself. No personal, not even a professional body can be allowed to make such a grave accusation without due investigation. To ground such a grave accusation on reasonable belief of the person making the accusations to give a licence to malign others. It is not unusual to deprecate a man's conduct but vilification should not form part of a disclaimer. Those who publish disclaimer should be cautious not to infringe on the rights of others. Where caution is thrown into the wind recklessness is enthroned"

I cannot find any facts in the Amended Statement of Defence or from the evidence led to show that the Appellants are entitled to defence of qualified privilege or under any legal duty social, moral or religious duty to write to the persons listed in paragraph 19 of the Statement of Claim and admitted in paragraph 16 of Appellants' pleading in the reckless way the Appellants have done by referring to the Respondent as:

"... One notorious political tout who has no personal means of livelihood Chief Godwin Anaejionu, have continued to interfere, to intrude in the affairs of our village and to shoot out trouble capable of causing blood bath in the community."

I have carefully gone through the Record of Appeal and all arguments canvassed for and against the Appeal in all the Briefs filed including Appellants Reply Brief and I am satisfied that the Learned trial Judge was amply justified and right on the construction placed on Exhibit "J" the libelous documents. The Respondent was in fact defamed.

All the issues or complaints raised against the judgment of the lower Court are not weighty enough to upturn the judgment of the lower Court.
It is not every slip, error or mistake of the lower Court that will lead to reversal of the decision of trial court by an Appellate Court.
See POPOOLA OLUBODE & ORS V. ALAAJI SALAMI (1985) 4 SC (Pt 1) 41 at 48 per Coker JSC who said

"It is my view that the function of an Appeal Court is to determine whether error had been committed by the trial Court. If error has been committed, it must then decide whether such error was of such grave and magnitude to necessitate the reversal of the judgment of the trial Court. It is not every error that would lead to a reversal by an Appeal court. Such error must have substantially affected the result of the decision."

There is no such error in the judgment Appealed against. Consequently issue one is resolved against the Appellants and in favour of the Respondent.

ISSUE 2

WHETHER THE TRIAL COURT WAS RIGHT IN HOLDING THAT THE CLAIMANT IS ENTITLED TO THE RELIEFS CLAIMED

The Appellants adopted all arguments under issue one and drew attention to what is the standard of proof for success in a case of libel by relying on the cases of

1.       GUARDIAN NEWS PAPERS LTD VS AJEH (2005) 12 NWLR (PART 938) at 225 F-H to 226 A-B
 

2.       OMO AGEGE VS OGHOJA for (2011) 3 NWLR (PART 1234) 341 at 354.
 

3.       EDEM VS ORPHEO (NIG) LTD (2003) 13 NWLR (Pt 838) 537 at 558  C -D

The Learned Silk to the Appellants finally urged the Court to decide the case against the Respondent while the Respondent's learned Counsel C.I Ugwoji Esq. maintained his stance that the lower Court's judgment ought to be upheld.  

Now the Learned trial Judge had awarded the sum of N1, 000,000 (One million naira) against the Appellants.

The settled principle of law in award of damages in libel cases is that it is at the discretion of the Court hearing the matter taking the following factors into consideration viz:

(a)     The standing of the Plaintiff in the society

(b)     The nature of the libel.

(c)     The mode and extent of the publication

(d)     The refusal to retract or render an apology to the Plaintiff.

(e)     The value of local currency.

See the case of GUARDIAN NEWS PAPERS LTD V. AJEH SUPRA page 594 F-G per RHODES-VIVOUR J.S.C.

The Learned trial Judge took all these factors into consideration before arriving at the award of N1, 000,000 Damages in favour  of the Respondent. I will not interfere with the award.

In the result I hold that the Appeal of the Appellants is not meritorious and it is hereby dismissed.

The Judgment of the Imo State High Court contained in the judgment of U.D. UGWURIKE, J., delivered on 28th day of March, 2012, in favour of the Respondent (Claimant at the Lower Court) is hereby confirmed. The Appellants shall pay costs assessed at N30, 000.00 (Thirty Thousand Naira) in favour of the Respondent.

UWANI MUSA ABBA AJI, J.C.A.:

I have had the privilege of reading in advance the lead judgment of my learned brother, P. O. Ige, J.C.A., just delivered.

The issue of publication was well established in the pleadings of the Respondent and supported by evidence. What the Appellants put in issue were construction and meaning to the publication not done or set or tarnish the Respondent's image or reputation as averred in paragraph 16 of the Appellants' Statement of Defence and paragraph 18 of the Deposition of DW1. There is nowhere in the Pleadings and evidence of the Appellants' Statement of Defence and paragraph 18 of the Deposition of DW1. There is nowhere in the pleadings and evidence of the Appellants where such was established.

The onus is on the Appellants to prove qualified privilege but failed to do so. The law is trite that a defence of qualified privilege will only avail a Defendant in libel suit if he can cumulatively prove or establish that there exists a common interest between the maker of the statement and the person or persons to whom it was made. That is, reciprocity of interest is therefore an essential element in law of qualified privilege, and secondly, that the fact relied upon by the maker must be true, a mere belief will not sustain the defence. See Atoyebi v. Odudu (1990) 3 NSCC 344 at 345. The learned trial judge was therefore right on the construction placed on Exhibit J, the libelous document that in fact shows the Respondent was defamed.

I completely agree with the reasoning and conclusions of my learned brother that this Appeal lacks merit and it is also dismissed by me. The judgment of the lower court delivered on the 28th day of March, 2012 is also affirmed by me.
I abide the consequential order made in the lead judgment including order as to costs.

PHILOMENA MBUA EKPE, J.C.A.:

I have had the privilege of reading in draft the judgment just delivered by my learned brother, P. O. Ige, J.C.A. His Lordship has painstakingly dealt with all the issues raised in this Appeal. I am in total agreement with all the reasoning and conclusions therein. I however, wish to add a few comments of my own.

The law is that a Plaintiff's general character or reputation need not be transparently stainless, unimpeachable and without any blemish before he can successfully maintain an action in defamation. SEE CRSN Camp. v. Oni (1995) 1 NWLR (Pt.371) 270.

In an action for libel, the question whether the words complained of are in fact defamatory and whether they are capable of conveying a defamatory meaning in the minds of reasonable person in a particular case, are to be determined by the court. See Sketch v. Ajagbemokeferi (1989) 1 NWLR (Pt.100) 678; Ciroma v. Ali (1999) 2 NWLR (Pt.590) 317.

In this case, the learned trial judge founds as such and I tend to agree with his decision in toto, in arriving at the award of damages of N100, 000.00

Accordingly, I too hold that the Appeal is lacking in merit and is hereby dismissed. The judgment of the lower court delivered on the 28th day of March, 2012 is hereby affirmed. I abide by His Lordship's order as to costs.