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In The Supreme Court of Nigeria

On Friday, the 18th day of May 1990

SC 101/1988

 

Before Their Lordships

 

 

Andrew Otutu Obaseki

......

Justice, Supreme Court

Augustine Nnamani

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Salihu Modibbo Alfa Belgore

......

Justice, Supreme Court

Abubqkar Bashir Wali

......

Justice, Supreme Court

  

Between

 

Chief P.N. Nsirim 

(Otherswise known as the  Apiti of Rumueme) 

......

Appellants

 And

E.A. Nsirim

.......

Respondent

 

Judgement of the Court

Delivered by

Obaseki. J.S.C.

 

 

 

Proceedings in the matter of appeal to this court were first instituted in the High Court of the Rivers State of Nigeria Holden at Port Harcourt. In that court, the plaintiff/appellant claimed as per paragraph 8 of the statement of claim:

 

N100,000 (one hundred thousand Naira) being general damages for libel published of and concerning the plaintiff on the 20th day of April, 1982 in a document of that date circulated by the defendant to all and sundry.

 

Pleadings were filed and served and at the close of pleadings, the issues joined came before Jacks. J.. for hearing and determination. The defendant/respondent while admitting writing the offending document, denied its publication. The offending libel was pleaded in paragraph 3 of the statement of claim as follows:

 

On or about the 20th day of April, 1982, the defendant without reasonable and probable cause held a press conference at the press centre in which the defendant alleged falsely and mali­ciously of and concerning the plaintiff in the presence of most of the editors and reporters of the national newspapers in Port Har­court and headed 'MY LIFE IS IN DANGER' the following:

 

'Gentlemen of the Press, lam happy for your honouring my invitation today the 16th day of April, 1982. It is my wish to brief you this morning of insecurity of some of us in Rumueme Community especially the threat of our leader to eliminate me and any aspiring youth and the members of Rumueme welfare organisation by our community leader.

 

Of late, our lives are in danger. He has been organising meeting announcing to them that very soon some of us could be found dead at night.

 

Chief 0. N. Nsirim has also giving (sic) a special mes­sage through one Grace Nworgumati to be delivered to me that he has given me and one Mr. Lawson Chinda the last warning, that anything can happen to us any moment from now and nobody is going to talk of it as far as this State is concerned.

 

This threat comes from a big man and I feel any big man can do anything at any time because they say money is the root of all evils.

 

For some time now, the Chief has been chasing me from pillar to post using his wealth and position to influence the police and Nigerian Security Organisation to harass me almost everyday and the youth of this community.

 

Because of this I have written series of letters to the Chief and copied to the Commissioner of Police, Governor and the Attorney-General informing them of the danger I have been placed upon.

 

Gentlemen, up to this point of briefing you, I have I neither heard anything from the police nor the Government. In other words, if I have been killed before, nobody would have been held responsible.

 

It is in view of this that I have decided to invite you to tell the world through your media the danger facing me.

 

It will be recalled that the rule of law in a civilised world like ours is not in existence in this our community Rumueme because of our leader who claim that he has right to do whatever he likes.

 

Since the leader of this community has announced to the people of this community sometime in November last year that he has decided a state of emergency in this com­munity, from that day, things have been falling apart al­most every day in this community which resulted that on the 2nd day of January, 1982, a house being built by one Vincent Ehule, a final year student in U.S.A., who is due to be back by June this year was bulldozed down by the Chief.

 

The matter was reported to the Police, but was in si­lence up till today.

 

Youths are no longer given farm lands because of their opposition to injustice in Rumueme. On Monday the 12th day of April, 1982, some group of people acting by the 

order of the Chief broke and entered into my Estate and knocked down one of the flats in the Estate for which the Chief sued me in the High Court, Port Harcourt.

 

One wonders why the rule of law is not in practice in this part of the State.

 

I would like to take you round to the site for which you members of the Press to see things for yourselves.

 

I am calling on every Nigerian particularly the Law En­forcement Agencies to come to my aid. Firstly, to give me protection for my life because my life is really in danger.

 

The chief has vowed to kill me at all costs and nobody will talk of it.     

 

As I told you before, any big man can do anything at any time and get out of it.

 

They say ‘prevention is better than cure' by that I mean, it will be better to prevent my life (being taken) rather than to set up enquiry into circumstances surrounding the death.

 

Please gentlemen. help to deliver my message to the people of this country for their information and to alert them that we here are living under Autocratic Rule.

 

Thank You,

 Sgd.  Mr. E. A. Nsirim

 

What is said at the Press Conference was in a typewritten document copies of which were circulated and distributed to those present at the Conference. The plaintiff will at the trial rely on the said document signed by the defendant.

 

4.   The natural and ordinary meaning in that publication is that the plaintiff is a man of very doubtful character, dishonest and unde­mocratic in the way he carries on the affairs of Rumueme. Furthermore, he does not encourage competitive progress in Rumueme community. He is oppressive and a criminal.

 

5.   The defendant was understood to mean by those to whom the words were published of and concerning that the plaintiff is a dishonest man and plaintiff is of dubious character, oppressive and undemocratic in all his ways and a criminal.

 

In his statement of defence, he denied the above paragraphs of the statement of claim as well as paragraphs 6 and 8 not reproduced herein.

 

The defendant denied publication of the said defamatory statement and went on to plead in paragraph 3 and 4 of his statement of defence as follows:

 

3.   The defendant denies paragraph 3 of the statement of claim and would at the trial put the plaintiff to the strictest proof of all the H averments in that paragraph.

 

4.   In further answer to the said paragraph the defendant would state as follows:

 

(a)    that there was no press conference held by him at any time and at any place;

 

(b)    that in fact a press conference was contemplated and for which purpose the said publication was prepared by him, but on a second thought, the idea was shelved;

 

(c)    that the said publication was therefore not published to anyone but was rather kept in his office under lock and key;

 

(d)    that as a result of trouble between the plaintiff and the de­fendant over certain piece of land at Rumueme and over the running of O.C.C. Nigeria Limited, the plaintiff on several occasions and especially on 26th April, 1982, broke into the defendant's private business premises and removed several documents including the said publication;

 

(e)    that it was the plaintiff himself who published the contents of the said intended press briefing if at all.

 

5.     It will be contended at the trial that the defendant did not publish or procure the publication of the words referred to in the statement of claim.

 

There was therefore a serious issue joined on publication.

 

The issue went to trial and the learned trial Judge, Jacks, J., found in favour of the plaintiff/appellant and awarded him general damages in the sum of N100,000.00 with N200.00 costs. The defendant appealed to the Court of Appeal and won.

 

On the issue of publication. the learned trial Judge said -

 

Plaintiff's witness, Tons Fetepigi, who is not an interested wit-ness and at the material time the Group News Editor of the Nigerian Tide Newspaper has given evidence to the effect that one of the reporters brought a copy of the press release to them on 20th April, 1982 and that defendant later went to him to solicit publi­cation. I have no hesitation in believing his evidence. Therefore plaintiff could not have removed defendant's file including what he called the intended press release after 20th April, 1982. 1 therefore find as a fact that the offending press release was pub­lished by defendant on 20th April. 1982. In addition, Exhibit 'A' which is a copy of the press release confirms this fact.

 

On this issue of publication, the Court of Appeal had a lot to say. Akpata, J.C.A.(delivering the lead judgment concurred in by Aseme, J.C.A. and Ogundare, J.C.A.) said:

 

It is clear that the learned trial Judge rejected the defence of appellant that the publication was done by the respondent himself. The issue therefore is whether he was right in holding as he did that the offending document was published by the defendant on 20th April, 1982.

 

The learned trial Judge up to this point of the judgment, av­oided or inadvertently omitted to state where the document was published and to whom …………………………...................

 

There is nothing to suggest in the judgment of the learned trial Judge that he accepted the case for the respondent that the pub­lication was at the press centre………………………….. ......

To crown the whole folly, the respondent concluded his case without calling as a witness one of the reporters to whom copies of Exhibit A was published.

 

I find myself unable to accept the contention of the respon­dent's counsel that the evidence of the respondent himself which has not been shown to have been believed by the trial Judge or the fact that the appellant approached P.W.1 with a copy of Exhibit A to solicit its publication which is inadmissible in evi­dence established his claim against the appellant as pleaded by him. The fact that the learned trial Judge rejected the defence of the appellant is no proof that he published Exhibit A and copies thereof at the press centre on 20th April, 1982.

So far, I have based this judgment on the ground that it was not established by the respondent that the appellant published the offending document at the press centre………………………

 

More importantly, it is wrong to show the inference of publication from the contents of a libellous matter. Another faux pas in the judgment of the trial Judge is the erroneous sweeping statement that

 

‘In law the writer of a libel is responsible for its publication’………................................

 

It is only left for me to say that publication to P.W. I was not pleaded .....................………

 

The issue in this appeal is not so much whether there was publication at all but whether there was publication as pleaded. Parties are bound by their pleadings…………………………………………………….....................................................

 

……….The observation of the learned trial Judge that

 The plaintiff in the present suit has discharged his onus (to prove publication)' is erroneous.

 

The appeal therefore succeeds.

 

The plaintiff was dissatisfied with the decision of the Court of Appeal and brought this appeal to this court on 3 grounds. These 3 grounds of appeal read (without their particulars):

 

1.    Error in Law  

The learned Justices of the Court of Appeal erred in law by allowing and or permitting arguments on any or all the grounds of  appeal when all the grounds offend the law:

Particulars of Error Omitted  

2.        Error in Law

 

The learned Justices of the Court of Appeal erred in law by hold­ing that the onus of proof of the publication of the libel Exhibit 'A' was not discharged by the plaintiff/appellant in that the latter did not say where or to whom the same was published when the law says the contrary, a decision which has occasioned a miscarriage of justice.

Particulars of Error Omitted  

3.       Error in Law

 

The learned Justices of the Court of Appeal erred in law by re­evaluating well considered evidence of the trial court when the conditions for the exercise explicit in Chief Frank Ebba V. Warri Ogodo [1984] 1 SCNLR 372; (1984)4 S.C. 84 at p.99 for such re­evaluation were not present.

Particulars of Error Omitted

The parties filed their briefs of argument in this appeal and their counsel at the oral hearing adopted them.

Although the appellant formulated 5 issues for determination in this appeal, I found that the main issue for determination is whether publication of the libel complained of was proved as pleaded. The importance of this issue lies in the fact that if publication is not pleaded, there is no cause of action disclosed in the statement of claim and if publication is pleaded and not proved, the action must fail and the claim dismissed. The issues formulated by the appellant in his brief are five-fold as follows:

 

i.       Was the Court of Appeal right in law to have allowed the defendant/appellant respondent argue his grounds of appeal in the said Court when objection was promptly taken on grounds of law against the said grounds of appeal which objections, if sustained, would have determined the appeal?

 

ii.     Was it proper in law for the Court of Appeal to have totally ignored in its judgment objections taken against the validity of the ground of appeal when such objections were raised in argument in the brief of argument of one of the parties?

 

iii.   Has a plaintiff who conclusively proves that a document which is libellous of him was published to a "third party" even if not specifically named not discharged the onus of proof of publication placed upon him?

 

iv.   Where a party proceeds to explain how a libellous document written by him and also kept by him at all times "under lock and key" got to a third party; but the explanation collapses and is dis­believed by the trial court, would the court not be right to accept the only alternative explanation on version placed before it?

 

v.    In a case like this in which the defendant/appellant/respondent admits the writing and authorship of the libellous document, on whom does the onus for the proof of publication or absence of it lie?

The respondent formulated the issues for determination in his brief dif­ferently. He formulated four issues as follows:

1.  Whether the Court of Appeal was right to have allowed the respondent to argue his grounds of appeal when an objection to those grounds was only raised in the appellant's brief but was not argued on the date of hearing.

 

2.   If the answer to (1) is in the negative, whether those grounds of appeal argued at the Court of Appeal are incompetent.

3.   Whether, having regard to the pleading filed in this case and the evidence led, the plaintiff has the onus of proving publication.

4.   Whether in all the circumstances of this case, the Court of Appeal was right in reversing the judgment of the trial court.

The appellant and the respondent are agreed on the first and second issues although differently worded. It is therefore common ground that the appellant took an objection albeit in the brief to all the 4 grounds of appeal. I have examined the record of proceedings and found that the appellant did raise the objection in the following terms:

7     (b)     OBJECTION. All the 4 grounds of appeal filed did raise or allege MISDIRECTION' OR ERROR OF LAW against the trial Judge. But under none did the appellant provide particulars of error of misdirection as required by Order 3 Rule 3(2) of the Court of Appeal Rules, 1981.

 

(c)    The respondent humbly urges on their Lordships to strike out these grounds of appeal or that the appellant should not be allowed to argue these grounds.

These issues raise the important questions of the procedure of raising preliminary objections to grounds of appeal.

Is it sufficient to set out the objection in the brief without moving the court at the oral hearing?

The Rules of the Court of Appeal 1981 as amended provides the answer. The objection was raised under Order 3 Rule 2(2) which reads

If the grounds of appeal alleges misdirection or error in law the particulars and the nature of the misdirection or error shall be stated.

If any ground of appeal is incompetent the court has power to strike it out. If all the grounds of appeal are incompetent thereby making the notice of appeal a nullity, the Court of Appeal has power to strike out the Notice of Ap­peal under Order 3 Rule 2(7) of the Court of Appeal Rules, 1981. This sub-rule reads:

The court shall have power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.

Sub-rule 2 of Rule 2 empowers the Court of Appeal to strike out any ground of appeal which is vague or general in terms or which discloses no reasonable ground of appeal on its own motion or on the application by the respondent. The manner in which the application can be made is set out by Order 3 Rule 3(1) which reads:

Every application to the Court shall be by notice of motion supported by affidavit. It shall state the rule under which it is brought and the ground for the relief.

The respondent in the instant appeal has contended that although the objection was stated in the brief the court was not moved at the oral hearing  of the appeal to strike out the grounds for failure of particulars of error. He therefore submitted that the appellant herein should be taken to have abandoned the objection more so as it was not an issue for determination in the appeal before the Court of Appeal.

In my opinion, there is substantial merit in the contention of the respondent. Being a preliminary objection, the objection should have been by motion or notice before the hearing of the appeal so that arguments on it can be heard by the court. While notice of objection may be given in the brief, it does not dispense with the need for the respondent to move the court at the oral hearing for the relief prayed for.

This preliminary objection not having been raised and argued at the oral hearing the Court of Appeal cannot be condemned as having erred in al­lowing the then appellant (now respondent) to argue his appeals. Be that as it may, the question may be asked if the objection would have been upheld?

I have examined the five grounds of appeal and I find that each of the grounds was framed or couched in an unorthodox style. They all contain part­iculars of misdirection or errors and their nature. The particulars were in­corporated into the body of the ground of appeal and not set out under the usual heading of PARTICULARS in bold letters as is now the normal practice.

It cannot therefore be said that the respondent (then appellant) failed to supply the particulars and nature of error of misdirection so alleged in the said grounds. If the said grounds had contained no particulars and nature of errors and misdirection they would have been liable to be struck out under the Rules. This course of action is supported by a long line of authorities. See Okeke Anadi v. Okeke Okoli (1977) 7 S.C. 57 at 63; Mba Nta v. Anigho (1972) 5 S.C. 156 at 164; Osawaru v. Ezeiruka (1978) 6-7 S.C. 135; and Okorie v. Udom (1960) 5 FSC 162 at 164.

The respondent relied on Ajide V. Kelani (1985)3 N.W.L.R. (Pt.12) 248; (1985) Vol.16 NSCC. 1296 to show that where notice of preliminary objection is given in the brief it was to be argued in open court to call for a decision. The respondent further contended that the use of the word may in 'may be struck out' in the Rule shows that it is not mandatory that the ground without particulars must be struck out. However, the grounds are not incompetent because they contained the particulars and nature of the errors and misdirection complained of - Atuyeye v. Ashamu (1987)1 N.W.L.R. (Pt.49) 267 at page 282; (1987) Vol.18 NSCC. 117. Grounds I and 2 fail and the 1st and 2nd issue must be resolved in favour of the respondent since the said grounds contain the nature and particulars of errors. See Atuyeye v. Ashamu (1987) Vol. 18NSCC. 116; (1987)1 N.W.L.R. (Pt.49)267at282.

I now go to the main issue in this appeal which is the issue of publication of the libel. An action for libel must fail if publication of the defamatory mat­ter is not proved. This proof must be given by admissible evidence as it is the publication that gives a cause of action. The material part of the cause of ac­tion in libel is not the writing, but the publication of the libel. See Hebditch V. Macilwaine & Ors. (1894) 2 Q.B. 54 at 61 per Lord Esher, M.R., per Davey, L.J., at p.64; Bata V. Bata (1948) WN 366; Thomson V. Lambert (1938) 2 DLR 545 (S.C. Canada). The act of publishing the libellous matter Constitutes the cause of action. Keefe V. Walsh (1903) 2 I.R. 706.

 

What then is meant by 'Publication'? By publication is meant the making known of the defamatory matter to some persons other than the person of whom it is written.

The writing of a libel to the person or party libelled does not constitute  publication for the purposes of a civil action. Thus, the publication to the appellant of the libel complained of does not constitute publication to found an action for libel.

Learned counsel for the appellant submitted on this issue of publication that the appellant pleaded that the libellous document Exhibit 'A' was circu­lated to press men at the Press centre by the respondent and by the defendant to all and sundry. Re then contended that it cannot be said that publication to p.w.1 was not pleaded. Re then cited Pullman V. Hill & Co. (1891)1 Q.B. 524 at 527. It is observed that the pleading did not mention the name of any person to whom the statement 'A' was delivered.

It is the reduction of libellous matter to writing and its delivery to any person other than the person injuriously affected thereby that is publication. The name of the person to whom delivery of the libellous document was made must be pleaded.

 

The evidence of p.w.1 that one of the reporters brought Exhibit 'A' to him is of no probative value. This is more so having regard to the evidence of the respondent that he did not make any photocopy of the document. The reporter who gave Exhibit 'A' to p.w.1 never testified. The evidence of the appellant in his testimony was

 

Defendant circulated some document after reading it to the crowd. This was at the Press Conference

P.W. 1 in his testimony in chief said:

Sometime on the 20th April, 1982 one of my reporters brought to me a press release which was signed by the defendant for the purpose of publication in the Nigerian Tide. I see Exhibit A. It is the press release that was brought to me…….. ......I made a study of Exhibit A meticulously and……….. I therefore declined to publish it.

Under cross-examination, part of his testimony reads

The Exhibit A was shown to me. The defendant also came to my office with a counterpart of Exhibit A soliciting publication.

It is observed that Exhibit A was produced and tendered in evidence by the plaintiff. The only witness called by the plaintiff Tons Fetepigi was never at the press conference. He was shown Exhibit A by his reporter. The repor­ter was never named and not called to testify. The defendant never gave a copy when he went to him to solicit publication. The evidence was therefore not a proof of facts pleaded and went to no issue. The facts pleaded were

 

What was said at the Press Conference was in a type-written document copies of which were circulated to those present at the Conference. The plaintiff will at the trial rely on the said docu­ment signed by the defendant.

The plaintiff has not pleaded that he was at the Press Conference. Re has also not pleaded that Tons Fetepigi was at the Press Conference. In the cir­cumstances, I agree with Akpata, J.C.A., when he said;

Contrary to the finding of the learned trial Judge, it cannot be said, on the totality of the evidence, that the publication by the           appellant pleaded in paragraph 3 of his amended statement of claim,

Parties are bound by their pleadings. See George V. Dominion Flour Mills Ltd. (1963)1 All N.L.R. 71. National Investment and Properties Co. Ltd. v. The Thompson Organisation Ltd. (1969)1 All N.L.R. 138 and evidence of facts outside the pleadings must be jettisoned as they go to no issue.

If the pleadings of the appellant had shown that the respondent pub­lished the defamatory matter to Tons Fetepigi, p.w.1, the evidence of p.w.1, on the issue would have been admissible. If also the pleadings of the appellant had averred that the respondent showed Exhibit A, the defamatory matter to P.W. 1, the evidence would have been relevant and admissible. But these facts were not pleaded. Finally and most importantly, it is clear from Exhibit A that the Conference was held on the 16th day of April, 1982 not on the 20th day of April, 1982 as pleaded and testified to. This is fatal to the case of the appellant.

The appeal fails and I hereby dismiss it with N500.00 costs to the respondent.

 

 

Judgment delivered by

Nnamani, J.S.C.

 

I have a preview of the judgment just delivered by my learned brother, Obaseki, J.S.C. and I entirely agree with hi~ reasoning and conclusions.

It is trite now that publication is an essential ingredient which must be proved if an action for libel is to succeed. The appellant seems to have foun­dered on this. His witness, Mr. Fetepigi claims that he got the allegedly libellous document from a reporter he sent to cover the appellant’s alleged press conference. The reporter did not give evidence. The respondent ad­mits being the author of the offending document but insists he did not pub­lish it to anybody. Rather he says he locked it up in his drawer.

I am of the view that the Court of Appeal was right in holding that there was no publication. I too do dismiss this appeal. I endorse the order for costs in the lead judgment.

 

 

Judgment delivered by

Karibi-Whyte, J.S.C.

 

I have read the judgment of my learned brother Obaseki, J.S.C., in this appeal. I agree with the reasoning and con­clusion that this appeal should fail. I also will dismiss and hereby dismiss the appeal.

Appellant shall pay N500 to the Respondent.

 

 

Judgment delivered by

Belgore, J.S.C.

 

I read in advance, in draft form, the judgment of my learned brother, Obaseki, J.S.C., with which I am in full agreement. The cardinal principle of libel in law is that there must be publication of libellous matter to a third person other than the person libelled; this is because a person's reputation is not based on the good opinion he has of himself but the estimation in which others hold him. In the present appeal, could it be said there was a publication? Tom Fetepigi, News Editor of  "Nigenan Tide", never testified that the appellant actually delivered the defamatory matter to him. he merely mentioned that he received it from a reporter – whether named or not is not relevant - who was not called as a witness. Fetepigi's testimony, at best, is hearsay evidence which is inadmissible by the rules of evidence. Apart from this there was no publication; and in law this is no evi­dence of publication for purposes of libel. Publication directly to a man defamed, without more is no publication [Pullman V. Hill (1891)1 Q.B. 527.]

 

It is for the foregoing reasons and fuller reasons in the judgment of Obaseki, J.S.C. (which I adopt as mine) that I find no reasons to disturb the decision of the Court of Appeal. I also dismiss this appeal with N500.00 costs to the respondent.

 

 

Judgment delivered by

Wali, J.S.C.

 

I have had the opportunity of reading in advance the judgment read by my learned brother, Obaseki, J.S.C. I agree with his reasoning and the conclusion that the appeal lacks merit and it should be dismissed. It is for those same reasons in the lead judgment which I hereby adopt as mine that I too dismiss this appeal with N500.00 costs to the Respondent.

 

 

Counsel

 

J.O.  Okonkwo, Esq.

  ........

For the Appellants

M. O. Abudu, Esq.

  ........

For the Respondents