FRED EGBE (APPELLANT)
THE HON. JUSTICE J.A. ADEFARASIN (RESPONDENT)
(1987) All N.L.R. 1
Division: Supreme Court Of Nigeria
Date of Judgment: 9th January, 1987
Case Number: (SC. 71/1985)
Before: Aniagolu, Kazeem, Karibi-Whyte, Kawu, Oputa; J.J.S.C
The appellant, a legal practitioner sued the respondent claiming
N500,000.00 (five hundred thousand naira) being general and special damages suffered as a result of an alleged slander of the appellant by the respondent on the 23rd March, 1978.
Prior to this time the appellant had been arraigned before a Magistrate Court with one Dubois Le Feure for conspiring and stealing the sum of
N50,000.00 (fifty thousand naira) property of the American International Insurance Company Nigeria Limited. It was when the appellant was in custody that he was told by one Mr A. Odofin that the respondent said the amount involved in the matter was N4 million and that the appellant was instrumental to his losing a profitable tenancy arrangement. The appellant then wrote a letter to the respondent informing him about what he heard, which the respondent denied through a letter written by his secretary.
It was these words that the appellant found defamatory and therefore sued. At the hearing of the case the respondent raised the following defences; that the action was statute-barred, there was no slander of the appellant by the respondent and that the words allegedly spoken by the respondent caused no damage to the appellant. While the appellant contended that the action was not statue-barred because damage resulting from the slander had not occurred until the date he was forced out of the company in which he shared membership with one Mr Allison Ayida and that the respondent having denied in his letter to the appellant that he uttered the words complained of (which denial was a lie) the respondent was stopped by his conduct from raising the issue of limitation of time.
The High Court dismissed the claim on the ground that the action was statute barred and also on the ground that the case was totally without merit. On appeal to the Court of Appeal, the judgment of the trial Court was upheld.
Being aggrieved by this decision the appellant then appealed to the Supreme Court on the following grounds:
(a) that the Court of Appeal erred in finding that the action was statute barred
(b) that the respondent was not stopped from pleading limitation of time
(c) that there was no evidence disproving the contents of the letter, or establishing its falsity
(d) that the words spoken were not defamatory of the appellant.
1. Section 10 of the limitation Law (Laws of Lagos State 1973) states that an action claiming damages for slander shall not be brought after the expiration of 3 years from the date of which cause of the action occurred. It was alleged that the respondent uttered the slanderous words on the 23rd March, 1978 and so the action would have become astute barred on the 24th of march, 1981. The appellant took out his writ on 6th October 1981 and so was prima facie 6 months out of time.
2. The contention of the appellant that he was not out of time because damage resulting from the slander had not occurred until the date he was forced out of the company in which he shared membership and that the respondent having denied in his letter to the appellant that he uttered the words complained of was stopped by his conduct from raising the issue of limitation of time is obviously non-sequitor.
A defendant is by the law of pleading including in defamatory actions, permitted to plead in the alternative.
Slander actionable per se does not require damage to be proved in order to ground the action.
Mr Fred Egbe in person
Chief F.R.A. Williams, SAN for Respondent
(with him O.A.O. Williams and Miss M. O. Euba)
Cases referred to:
1. Benmax v. Austin Motor Co. Ltd. (1955) AC 370 at 375, (1955) IM/ER 326 at 327 & 328.
2. Berdan v. Greenwood (1878) 3 Ex D 251 at 255.
3. The Darley Main Colliery Company v. Mitchell (1886) 1 AC 127.
4. Lewis v. Daily Telegraph Ltd (1963) 1 QB 340, 1964, AC 234.
5. Morgan, Re (1887) 35 CH.D 492 at 446.
6. Parmiter v. Coupland (1804) 6 M & W 105 at 108.
7. Philips v. Philips (1878) 4 QDB 127 at 134
8. Sims v. Stretch (1936) 52 TLR 669 at 671
9. Simmons v. Mitchell (1880) 6 A.C. 156.
10. Thompson v. Palmer (1933) 49 CLR 501 at 547
11. Tozer v. Marshford (1851) 6 Ex 539
12. Tuburville v. Western Corporation (1950) 2 KB 208.
Statutes referred to:
1. Criminal Procedure Law Limitation Law, Cap. 70 Laws of Lagos State.
2. High Court of Lagos (Civil Procedure) Rules.
Aniagolu, J.S.C. 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
N500,000.00 (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."
Although for the resolution of this appeal only one solitary legal issue needs to be dealt with, yet for a proper understanding of the dispute between the parties it is necessary to look at the background facts of the case as adduced in evidence.
It all began in 1977. The Appellant was visited in his office in Western House by a legal practitioner, one Dele Ogedengbe, who informed him that he had reached an agreement with a man called Bennie, who was the Managing Director of Laing Construction Limited, for him to rent a house situated at Victoria Island belonging to the defendant. Mr Ogedengbe was acting for the defendant. He said he had come on the instruction of the defendant to request the Appellant to accelerate the preparation of legal documents so that Mr Bernie could pay the agreed rent of
N50,000.00 (fifty thousand naira) per annum, payable 5 years in advance, to the defendant.
Mr Ogedengbe however informed the appellant that there was another house belonging to one Mr Dove Edwin, the then Nigerian Ambassador to France, which they needed to hire in respect of which the preparation of legal documents should be given priority. The rent of Mr Dove Edwin's house was
N42,000.00. The reason why they required Dove Edwin's house for immediate occupation was because it was a specially designed house having over half an acre of grounds as against the house of the Respondent. The house of the Respondent was to be kept in view to await further instructions.
To the surprise of the Appellant, on 23rd March 1978 the appellant was arraigned before a Magistrate V.B.A. Famakinwa, charged with one Mr Le Fevre, with stealing
N450,000.00 property of the American International Insurance Company of Nigeria Limited. The charge (Exhibit 1) reads:
"IN THE MAGISTRATE'S COURT OF LAGOS STATE
HOLDEN AT COURT No. 1, LAGOS
THURSDAY THE 23RD DAY OF MARCH, 1978
BEFORE HIS WORSHIP V.B.A. FAMAKINWA, ESQ.
CHIEF MAGISTRATE GRADE 1
FRED EGBE VS. HON J.A. ADEFARASIN (COURT 2) 6/10/81
CHARGE NO. A/22/73
COMMISSIONER OF POLICE
1. LOUIS DUBOIS LEFEVRE (m)
2. FRED EGBE (m)
"That you Louis Dubois Lefevre and Fred Egbe between the 28th day of November, 1977 and 10th day of February 1978 at Lagos in the Lagos Magisterial District, conspired together to commit a felony to wit: Stealing the sum of
(Four hundred and fifty thousand Naira) property of American International Insurance Company Nigeria Limited and thereby committed an offence punishable under Section 516 of the Criminal Code.
2nd Count: That you Louis Dubois Lefevre and Fred Egbe between 10th day of February, 1978 and the 14th day of February, 1978 at Lagos, in the Lagos Magisterial District stole the sum of
N450,000.00 (Four Hundred and fifty thousand naira) property of the American International Insurance Company Nigeria Limited and thereby committed an offence contrary to Section 390(9) of the Criminal Code."
Although Magistrate Famakinwa had offered bail to the Appellant the Appellant oddly enough, refused to go on bail and chose to be remanded in custody. He remained in custody up to 30th April 1978. It was while he was in custody that he was visited by one Mr Aderemi Odofin who told him what the Respondent had said that the amount involved in the matter was
N4 million and that one Mr Allison Ayida was present when the respondent spoke.
The Appellant on 17th November 1980 wrote a letter (Exhibit 5) to the Respondent which letter was replied on the instruction of the respondent by the Personal Secretary to the Respondent, one Mrs I.O. Oluwole (Exhibit 6). The two letters read.
17th Floor, Western House,
8-10 Broad Street,
P.O. Box 2845
Tel. 636314, 635745.
The Hon. Mr Justice A. Adefarasin,
Chief Judge of Lagos State,
Lagos High Court,
I have been told recently that you have made two specific complaints about me, the first being that in 1977, I was instrumental in depriving you of profitable tenancy arrangement in connection with your properties in Victoria Island, and the second to the effect that I have made away with some four million Naira, the property of some unspecified persons.
With regard to the first point, whilst it is true that a legal practitioner by the name of Ogedengbe had informed me that you had reached an agreement with Laing Construction Ltd. (my then clients) in connection with your property in Victoria Island, and that you would appreciate an expedition of documentation, I state categorically that the eventual breakdown in negotiations between yourself and Laing Construction had nothing to do with me whatsoever. I would also like to state that the said Laing Construction did not take any property belonging to me, and that I did not in any way benefit from their decision to rent a property belonging to George Dove-Edwin, our present Ambassador in Paris.
On the second point, I would like to state that I have never taken anybody's money, whether in the sum of four Million Naira or any other amount, and that I should be grateful if you would be kind enough to make available to the proper authorities any evidence you may have to the contrary.
(Sgd.) FRED EGBE"
Mr Fred Egbe,
"EXHIBIT 6 8/10 Broad Street,
P.O. Box 2845,
Dear Mr Egbe,
I am directed by the Hon. the Chief Judge of Lagos State to refer to your letter dated 17th November 1980 and to express His Lordship's shock at reading the content of the letter. Not only was his Lordship never aware of any of the matters referred to by you, he had never made any complaint about you to anyone, orally or in writing, about any matter whatsoever or any of the ones mentioned in your letter.
His Lordship wishes me to say that he had no agreement or discussions whatsoever, in 1977 or at any other time, with Laing Construction Limited about any property or any other subject. He had never known anyone connected with that Company and had never authorised anyone to hold any discussions with the Company.
If Mr Ogedengbe had said anything to you concerning any agreement, which allegation he had denied, it was not to his Lordship's knowledge or on his authority.
"I am to add that his Lordship knows nothing whatever about the matters you have alleged in your letter. He wonders what would be the purpose of making such an insulting, unwarranted and unjustified attack on a Judicial officer.
(Sgd.) MRS I.O. OLUWOLE
PERSONAL SECRETARY TO THE
HON. CHIEF JUDGE."
It would appear that for the prosecution of the Appellant a consent order (Exhibit 2) was granted to the prosecutor, one Mr Ilori, by the Respondent. Exhibit 2 reads:
CHIEF JUDGE'S CHAMBERS
HIGH COURT OF LAGOS STATE
IN THE HIGH COURT OF JUSTICE
IN THE LAGOS JUDICIAL DIVISION
THE STATE VERSUS FRED EGBE (M)
I Joseph Adetunji Adefarasin, Chief Judge of the High Court of Lagos State, hereby give my consent to a Criminal Information being preferred in the above indictable offence under and by virtue of paragraph 8 sub-section 240 of the Criminal Procedure Law.
(Sgd.) J. A. Adefarasin Chief Judge
HIGH COURT OF LAGOS STATE.
Dated this 11th day of October, 1978."
The appellant testified that Mr Bennie told him that the Defendant complained bitterly about his house not being rented and that in fact he was angry.
The Appellant's complaint was that all that facade of his being charged before the Magistrate and the subsequent consent order granted by the Respondent, were all done, not for a prosecution of due judicial process, but by the contrivance of the Respondent to punish him for his Victoria Island house not being rented by Laing Construction Ltd. It was, as he termed it in his brief, "judicial oppression." The implication was that the Respondent was using judicial process to even out scores with him. He had committed no offence; did not steal any money from any insurance company, and no-one complained that he had stolen any money. The further implication was that the Respondent's judicial action in granting the consent order was malicious.
Pleading were ordered and filed. 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 upon four grounds of appeal set out hereunder: "GROUNDS OF APPEAL
The learned Justices of Appeal erred in law in rejecting the Appellant's contention that a finding by the learned trial Judge that Appellant's action was statute barred under Section 10 of the Limitation Law implied that there was a cause of action and that the cause of action was one for slander which was actionable per se.
A finding that an action is statute barred, is a conclusive application of statute law to a given set of facts, which facts must be either admitted or established by evidence. A fortiori, a cause of action cannot be statute barred unless it exists as a fact.
The learned Justices of Appeal erred in law in failing to apply the principle of estoppel enshrined in the authority of Tuburvill (sic)-vs-West Ham Corporation 1950 2 K.B. 208 to the circumstances of the present case with a particular reference to Exhibit 6-the letter dated 21st November, 1981 addressed to the Appellant on behalf of and by the authority of the Respondent in which the Respondent denied ever publishing or communicating any information concerning the Appellant:
The learned Justices of Appeal erred in law and in fact in holding that there was no evidence disproving the contents of Exhibit 6 or establishing that the document is false.
(a) Matters referred to in the Appellant's letter of 17th November, 1980 of which the Respondent was "never aware" are inter alia the Respondent's instructions to Mr Ogedengbe a Lagos Lawyer to let the Respondent's house in Victoria Island. It was established through the evidence of Mr Ogedengbe on oath that he had acted for the defendant and had let both the Respondent's houses on that same plot in Victoria Island.
(b) Exhibit 6 the Respondent "knows nothing whatever" about allegation that Appellant had taken some 4 million Naira from some unspecified persons. It was established in the judgment that Respondent had revealed in March 1978 that he had heard that the Respondent had taken 4 million Naira.
(c) The Appellant denied that there was a meeting between himself and Messrs Allison Ayida and Remi Odofin in March, 1978. There was a finding by the Judge that such a meeting did take place.
The learned Justices of appeal erred in law and in fact in holding that the words proven to have been spoken by the Respondent concerning the Appellant, were not defamatory of the Appellant.
(a) The learned trial Judge and the learned Justices of Appeal did not disagree with the following words spoken by the Respondent "Allison I am surprised to hear that because I was told that the amount involved was about 4 million."
(b) The Respondent was "surprised" not that Fred was alleged to have been (sic) taken money nor because he had taken money from an insurance company but because he had been told that the amount involved was about 4 million. This was the slanderous publication.
(c) The learned trial Judge also accepted and the learned Justices of Appeal agreed that At this stage Mr Allison Ayida insisted (which incidentally he need not have done).
"I assured him that it was
N450,000.00 as I was from Fred and he told me so. He then said if it was N450,000.00 he would be very surprised because he cannot see Fred being tempted by such an amount. If it were 4 million then anybody would be tempted."
(d) The Justices of Appeal have like the learned trial Judge ignored the principal slander and have given "an erroneous construction to a supplementary statement made by the Respondent in an attempt at devaluing (sic) Mr Ayida's assurances and in reinforcement of the principal and slanderous statement.
(e) The Respondent had either clearly fabricated the story himself or was repeating a defamatory communication originated by others"
I consider the issue of Limitation under section 10 of the 1973 Laws of Lagos State raised by the defence as of paramount importance since no useful purpose will be served in dealing with other issues in the Appeal if the action was, indeed, statute-barred. However meritorious the other issues in the appeal might be, if the action was barred by Statute, no amount of resort to the merits of the Appellant's contentions will serve to keep the action in being.
The said Section 10 of 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." (Italics are mine)
If, as it was alleged, the defendant uttered the slanderous words on 23rd March 1978 then three years from that date would arrive on (not counting the day 23/3/78) 24th March 1981. But the Appellant took out his writ on 6th October 1981. Prima facie, he would be about six months out of time.
The Appellant has, however, argued both orally before us and in his brief, that on principle, he was not out of time because:
(i) the damage resulting from the slander had not occurred until the date he was forced out of the Company in which he shared membership with Mr Allison Ayida; and
(ii) that having denied in his letter to the Appellant (Exhibit 6) that he uttered the words complained of to Ayida and/or Odofin, and/or at all-which denial was a lie-the defendant was estopped by his conduct from raising the issue of Limitation of time,
in either case of which the plea of limitation of time would fail.
Relying on the brief filed by Chief F.R.A. Williams, Mr Oladipo Williams who argued the Respondent's appeal, contended that the question of the Statute of Limitation was fundamental and went to the root. Once the Court agrees that the action is statute-barred, he said, no further issue in the appeal need be considered.
In respect of the other grounds of appeal, he said, the appellant was bound by his pleadings. The words complained of are contained in paragraph 7 of the statement of claim. He said that appellant had called two witnesses, namely, Ayida and Odofin, to prove that allegation. The trial Court had accepted the evidence of Ayida and rejected that of Odofin. The accepted evidence of Ayida was, he said, in conflict with the rejected evidence of Odofin. The acceptance of the evidence of Ayida was not appealed against by the Appellant. That being so the words of Ayida, which were accepted, were not defamatory of the plaintiff. Therefore, quite apart from the Statute of Limitations, there was no defamation proved.
Finally, on the arguments put forward, the Brief of the Respondent and quite rightly stated that it was not easy to follow the Appellant's argument on the question of estoppel. He had said that the contents of Exhibit 6 where untrue and their untruth constituted a misconduct on the part of the Respondent, which misconduct the Respondent could not be heard to rely upon to raise the issue of limitation of action. As I understand this argument, what the Appellant is saying is that because the Respondent denied in Exhibit 6 uttering the alleged slanderous words-a denial which he says is untrue-the Respondent cannot be allowed to plead that the Plaintiff/Appellant instituted his action outside the period of time allowed by Statute. The reasoning is to me, obviously non-sequitur.
When asked by this Court if the defendant/Respondent was not permitted in law to plead or to argue in the alternative, Mr Egbe, in some sort of apparent desperation, stated:
"A person who has a Judge as a defendant is in hell."
-a statement which is rather unkind to the impeccable history of adjudication in this country-carrying as it does the unarticulated implication that a 'defendant-Judge' had the cause of justice titled in his favour by reasoning of his being a Judge. Nothing is further from the truth.
Clearly, a defendant is by the Law of pleadings, including in a defamatory action, permitted to plead in the alternative. (See: Order 16 Rules 11, 19 and 2 of the High Court of Lagos (Civil Procedure) Rules Cap 52 Vol. III Laws of the Lagos State of Nigeria 1973).
In PHILIPPS v. PHILIPPS And Other (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 defences, as he may think proper."
A defence, it was said in RE MORGAN, (1887) 35 Ch. D 492 at 496, is not necessarily embarrassing merely because it contains inconsistent averments, provided they are not fictitious.
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." (Italics mine)
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.
But even so, Turburville and Another v. West Ham Corporation (1950) 2 K.B.D. 208 on which the Appellant heavily relied, did not propound the law which the Appellant has put forward. It has not stated that time, in a slander actionable per se, does not start to run until damage occurs to the plaintiff. Indeed, it could not in law say so because slander actionable per se does not require damage to be proved in order to ground the action. It is actionable without proof of special damage. In Turberville it was held, inter alia, that the plaintiffs' cause of action did not accrue until they received notice of rejection of their claims on 25th February 1946, and therefore the time limit had not expired when the writs were issued on 2nd January 1947.
It was a case of some assistant school teachers and the adjustment of their salaries during the 2nd World War. The teachers put salary claims which their corporation-employer rejected. Time, it was held, would not commence in respect of their cause of action, consequent upon the rejection of their claims, until that rejection was communicated to them and not before. Turberville has no relevance to the present proceedings. The Darley Main Collier Company v. Mitchell (1886) 11 A.C. 127 is a good example of a continuing injury in respect of which time will not run until the subsequent injury had occurred. But it, against, has no bearing on the present case on appeal.
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.
The appeal must therefore be dismissed, and is hereby dismissed, with costs to Respondent hereby assessed at
Kazeem, J.S.C. I have had the privilege of reading the draft of the judgment just delivered by my learned brother Aniagolu, J.S.C. and I entirely agree that it has adequately dealt with the submissions made before the court in this matter. As a matter of fact, the Appellant in the course of his submissions said "I am willing to accept that the action is barred by statute in that the defamation was committed in March 1978'. Also when he was replying to the submissions made by learned Counsel for the respondent Mr Egbe (who appeared for himself) said "I have not said that the period of limitation should run from Exh. 6" (the reply letter dated 18th November, 1980, from the Respondent). Having regards to the above admissions by the Appellant himself and the findings of the two lower courts that the Appellant's action was statute-barred, I am satisfied that the appeal lacks merit and I will also dismiss it with
N300.00 costs to the Respondent.
Karibi Whyte, J.S.C. I have had the privilege of reading in draft form the judgment in this appeal of my learned brother, Aniagolu, J.S.C. I agree entirely with the reasonings and conclusions therein and that the appeal be dismissed. I too will dismiss this appeal for the same reasons.
I hereby therefore dismiss his appeal against the judgment of the High Court, dismissing his action against the respondent/Defendant, claiming
N500,000 (Five hundred thousand naira only) being general and special damages suffered as a result of slander of the Appellant/Plaintiff by the Defendant/Respondent.
Appellant shall pay to the Respondent costs of this appeal assessed at
Oputa, J.S.C. I have had the privilege of a preview in draft of the lead judgment just delivered by my learned brother and presiding Justice Aniagolu, J.S.C. I am in complete and total agreement with him that this appeal lacks merit and should be dismissed.
The facts of this case are quite simple and straightforward. They are by no means involved. These facts all seem to emanate from the Plaintiff (the Defendant gave no evidence) who in the Court of first instance sued the Defendant claiming half a million Naira (
N500,000.00) as general and special damages for slander. The slander was alleged to have been published by the Defendant to Messrs Aderemi Odofin and Allison Ayida on the 23rd day of March 1978.The trial court having refused to dismiss the Plaintiff's action in limine on the issue of limitation of action pursuant to Section 10 of the Limitation Law of Lagos State Cap 70 of 1973 ordered pleadings which were filed and exchanged. The case was ultimately fought on the Statement of Claim dated 22nd day of October 1981 and the Amended Statement of Defence-amended pursuant to an order of Court dated 31st day of May 1982.
The sting of the slander is pleaded in paragraph 7 of the Statement of Claim:-
"7 In March 1978-a few months after the event, the Defendant at the Defendant's residence falsely and maliciously spoke and published concerning the plaintiff to Messrs Aderemi Odofin.....and Allison Ayida.....amongst other persons present the following words:-
I hear that Fred Egbe has dealt irregularly with 4 million Naira the property of other persons."
How did the Defendant deal in his pleading with paragraph 7 of the Statement of Claim above? The Defendant's answer to paragraph 7 of the Statement of Claim will settle the essential issue or issues that will go on for trial before the trial Judge in paragraph 4 of this Amended Statement of Defence the Defendant denied paragraphs 7, 8 and 9 of the Statement of Claim and alleged that:-
"5 ....this action has been instituted for the purposes of throwing mud at the character of the defendant and not in a genuine effort to redress any grievance."
The Defendant pleaded further in paragraph 6 of his Statement of Defence:-
"6 The Defendant states that the allegation that he (the defendant) uttered the words complained of in paragraph 7 of the Statement of Claim has been made by the plaintiff falsely and maliciously or recklessly not caring whether it be true or false..."
From the pleadings of the parties the essential and vital issues are:-
1. Did the defendant utter the words complained of in paragraph 7 of the Statement of Claim?
2. Assuming that the Defendant did utter the words aforementioned were those words in all surrounding circumstances and in the context in which they were uttered defamatory of the Plaintiff?
It is to be observed that the Defendant did not and perhaps could not plead privilege and therefore any consideration of malice as a motivating factor to the publication will be totally uncalled for and irrelevant. Malice will not come in when the plea is-"I did not utter the words alleged." When as in this case the plea is non publication the onus is on the Plaintiff to prove either directly or circumstantially that the words complained of were in fact published to Aderemi Odofin and Allison Ayida.
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. Firstly on the issue of limitation of action the trial Court observed at pages 88/89:-
"According to the pleadings here, and as buttressed by the evidence of the Plaintiff and his witnesses, the date when the defendant was alleged to have uttered the slanderous words to Messrs Aderemi Odofin and Allison Ayida would appear to be on or about 23rd of March, 1978. This action was filed according to the records on the 6th of October, 1981. This, by simple calculation, in the computation of time would be outside three years since the cause of action is deemed to have accrued."
It is to be noted here that Section 10 of the Limitation Law of Lagos State Cap 70 of 1973 barred any action for damages for slander brought "after the expiration of three years from the date on which the cause of action accrued."
Secondly if as pleaded by the Plaintiff in paragraph 9 of his Statement of Claim that:-
"9 By reason of the publication of the said words the Plaintiff has been gravely injured in his character...and was forced to withdraw from Eagle Lighterage Company Limited a joint venture with Mr Allison Ayida valued at
Then the cause of action will accrue from the date the Plaintiff was forced out of the company because of the slanderous publication. The emphasis is on the expression forced out. Whether or not the Plaintiff was:
(i) forced out of the company
(ii) on account of the said slanderous publication are two issues of fact to be decided by the trial Court on relevant evidence. What was the finding of the trial Court on the issue of whether or not the Plaintiff suffered any damages? At page 89/90 of the record of proceedings the learned trial Judge found:-
"The Plaintiff in his evidence was completely silent on this issue of damages. His partner in business, from which he claimed he was forced to withdraw i.e. Allison Ayida did not talk of any coolness in the relationship between the plaintiff and himself."
The evidence was that the plaintiff voluntarily "withdrew from Tunex & Eagle Lighterage Companies in which we were both involved." The law, that volenti non fit injuria, still holds true. The Plaintiff could not have suffered any injury from his own voluntary act. So in this case there was no proof of any damage at all. From what date then ought time to start to run under S.10 of the Limitation Law Cap 70 of 1973 ? The Appellant's case as found is silent on this.
Thirdly whether in this case there was a publication of the alleged slanderous words will depend on whether it was proved that the Defendant even uttered the precise words alleged to constitute the slander as pleaded in paragraph 7 of the Statement of claim. To this end the plaintiff called Aderemi Odofin as P.W.2 and Allison Ayida as P.W.3. The learned trial Judge who saw those two witnesses, who listened to them giving their evidence and who watched their demeanour in the witness box found:-
1. "That no evidence had been led in support of the issue pleaded in the Statement of Claim" (para. 7).
2. That from the above "it would have been sufficient for the Court to hold that the plaintiff has failed to establish his case against the defendant."
Ab abundantia cautela the learned trial Judge went on what he called "a fact finding expedition, in an attempt to ascertain what merit, if any, there is in this action." After this self-imposed expedition he ended up by disbelieving the P.W.2 Aderemi Odofin holding:-
"I have no doubt in my mind that his account of the discussion between the defendant and both Allison Ayida and himself cannot be true and I believe it is not true to his own knowledge."
In other words the P.W.2 Aderemi Odofin's testimony was not accepted by the trial Judge in proof of the precise and exact words allegedly uttered by the Defendant and pleaded in paragraph 7 of the Statement of Claim.
The learned trial Judge believed the P.W.3-Alison Ayida's account of conversation between the Defendant on the one hand and Odofin and himself (Ayida) on the other hand. The judge then examined very carefully what the defendant was alleged to have said during the conversation or discussion with the P.W.2, Odofin and the P.W.3, Ayida and held:-
"Those words taken in their full context appears to me a good commendation of the plaintiff by the defendant. I also believe that the words accord with the opinion of right thinking members of society generally....Right-thinking members of society should understand defendant to be saying in a rejoinder to Mr Ayida's Statement,
N450,000.00? Fred is so self-sufficient and self-dependent to be tempted by such an amount. In that light it cannot be said that the words which even this Court accepts would be a true account of whatever the defendant said, is defamatory of the plaintiff."
The learned trial Judge then concluded that both from the technical objection of limitation of time and "equally on its true merits, this is an action which is liable to fail and ought not to have been instituted in fairness to the parties, justice and the profession."
The Plaintiff therefore lost in the Court of first instance not only on the technical point that his action was statute-barred by Section 10 of the Limitation Law of Lagos State Cap 70 of 1973 but also on the merit of the case. His action was held to be totally unmeritorious. Dissatisfied and aggrieved the Plaintiff appealed to the Court of Appeal Lagos Division coram Nnaemeka-Agu, Kutigi and Pepple, JJ.C.A. on 4 grounds. In a lead judgment to which Nnaemeka-Agu and Kutigi, JJ.C.A. concurred, Pepple, J.C.A. held that "the judgment of the Court below has not been faulted." He therefore dismissed the appeal. Still aggrieved and dissatisfied the Plaintiff having lost in the two Courts below has now appealed to the country's final Court of Appeal-the Supreme Court of Nigeria on 4 grounds. The Plaintiff/Appellant also filed a Brief on which he relied during the hearing of his appeal.
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. Afortiori counsel should endeavour to brief another counsel when cases concern them personally otherwise objectivity and detachment can hardly be maintained. In this case the Appellant, a very eminent counsel, undertook to conduct his case himself. He who descends into the arena of conflict cannot avoid the dust of the encounter. With the best will in the world he will not have that detachment expected of an advocate who merely argues the case as distinct from vouching the case. In his Introduction the Appellant in his Brief alluded to certain facts which do not form part of this case either as pleaded or as established by the evidence of the 9 witnesses who testified. To say the least the statements and insinuations in the Introduction to the Appellant's Brief were totally uncalled for and I may add, not in accord with the highest tradition of the bar. The Introduction contained what a Brief should not contain and the Brief itself omitted the most essential part of a Brief namely "Questions For Determination."
I will now proceed to consider the ground canvassed in the Brief and elaborated by oral argument in Court. Ground 1 complains:-
"The leaned Justices of Appeal erred in law in rejecting the Appellant's contention that a finding by the learned trial Judge that Appellant's action was statute-barred under Section 10 of the Limitation Law implied that there was a cause of action and that the cause of action was one for slander which was actionable per se" (The Italics are mine).
Having a cause of action is one thing but proving the case is an entirely different thing. It is thus necessary to have a clear idea of the expressions underlined in Ground 1 above. Legally, expressions like finding, action, cause of action are terms of art to which the law ascribes certain defined and definite meanings. A finding is a result of the deliberations of a jury or a court. It is a decision upon a question of fact reached as a result of a judicial examination or investigation by a court, jury, referee, coroner, etc. It is more appropriately called a finding of fact and as the name implies it is a determination from the evidence of a case concerning facts averred by one side and denied by the other side. Findings of fact are thus results of reasoning from evidentiary facts. They are conclusions drawn by the trial court from the facts without the application of law or the exercise of legal judgment. A trial court must first find the facts or make appropriate findings of fact on the issues in dispute before drawing from the facts as found inferences of facts and finally applying the relevant and applicable law. Findings of fact fall within the peculiar preserve of the trial Judge. Conclusions or inference from those facts can be drawn by any court including appellate Courts:-Banmax v. Austin Motor Co. Ltd. (1955) A.C. 370 at p. 375: (1955) 1 All E.R. 326 at pp. 327/328. Now a decision that a case is statute-barred is definitely more than a mere finding of fact.
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. A cause of action is to be distinguished from a right of action. A right of action is the right to enforce presently a cause of action. In other words a cause of action is the operative fact or facts (the factual situation) which give rise to a right of action which itself is a remedial right. Now Section 10 of the limitation Law of Lagos State Cap 70 of 1973 provides:-
"10 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." Section 10 above is a statute of limitation designed to bar, or hinder or obstruct by its interposition any legal redress or recovery of damages if as in this case an action for slander is taken after three years from the date on which the cause of action accrued. A cause of action is thus said to be statute-barred if in respect of it proceedings cannot be brought because the period laid down by the Limitation Law or Act had elapsed. 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. This can be done without taking oral evidence from witnesses. If the time on the Writ is beyond the period allowed by the Limitation Law then the action is statute-barred. Chief Williams, SAN, was right in filing a motion to strike out the action in limine. The trial Court was rather too lenient in allowing the action to proceed, and proceeding on what he called "a fact finding expedition" only ultimately to arrive at the conclusion that Section 10 of the Limitation Law of Lagos State Cap 70 of 1973 applied and that the action was statute-barred. Ground 1 of the ground of appeal confuses a cause of action and a right of action. 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. If that is what the Appellant wants he has it for the asking. Ground 1 has not pushed the Appellant's case one single inch forward.
Ground 2 of the Appellant's grounds of appeal complains that:-"Ground 2:
The learned Justices of Appeal erred in law in failing to apply the principle of estoppel enshrined in the authority of Turburville and Anor. v. West Ham Corporation (1950) 2 K.B.208 to the circumstances of the present case with particular reference to Exhibit 6-the letter dated 21st November, 1981 addressed to the Appellant on behalf of and by the authority of the Respondent in which the Respondent denied ever publishing or communicating any information concerning the Appellant."
Before considering what Turburville's case supra decided and whether or not the facts of that case are on all fours with the facts of the present case to enable any principle forming the ratio decidendi of that case to apply to the present case, it may be necessary to restate the law relating to estoppel. This was beautifully done by Sir Owen Dixon, C.G. in Thompson v. Palmer (1933) 49 C.D.R. 507 at p. 547:-
"The object of estoppel in pias is prevent an unjust departure by one person from an assumption adopted by another as the basis of some act or omission which unless the assumption is adhered to would operate to that other's detriment."
It is also to be noted that estoppel is but part of the law of evidence. It is no other than a bar to testimony and its sole office is either to place an obstacle in the way of a case which might otherwise succeed or to remove an impediment out of the way of a case which might otherwise fail: in estoppel is thus either a mine layer or mine sweeper. It is never a capital unit. Normally an estoppel ought to be pleaded by the party relying on it.
In this case neither in the Statement of Claim nor in his Reply to the Amended Statement of Defence did the Plaintiff/Appellant plead the letter EX.6 as an estoppel. Exhibit 6 was a reply to the Plaintiff's letter of 17th November 1980 tendered as Ex.5. the Plaintiff wrote to the Defendant stating inter alia:
"I have been told recently that you have made two specific complaints about me, the first being that in 1977, I was instrumental in depriving you of profitable tenancy arrangement in connection with your properties in Victoria Island, and the second to the effect that I made away with some four million Naira, the property of some unspecified persons."
What was the Defendant's reply to EX.5? If in his reply he owned up making the allegations contained in EX.5 then the Defendant will in the present action be estopped from alleging or proving the contrary. The Defendant's reply to EX.5 was a letter by his personal Secretary tendered as EX.6 Exhibit 6 reads in part:-
There is no paralled in EX.6 to the portion of Lord Oksey's judgment underlined above. Ground 2 therefore fails.
Ground 3 reads as follows:-"Ground 3:
The learned Justices of Appeal erred in law and in fact in holding that there was no evidence disproving the contents of EX.6 or establishing that the document is false."
The case before the trial Court was for
N500,000.00 damages for slander published by the Defendant to Messrs Aderemi Odofin and Allison Ayida in March 1978 as pleaded in paragraph 7 of the Appellant's Statement of claim. Exhibit 6 was a letter written on the 18th November 1980-that is 2 years and 8 months after the publication complained of. If EX.6 admitted publishing the slander then one can use it as an estoppel on the authority of Turnburville's case cited to us by the Appellant Barring such use I do not see the relevance of EX.6 to the two vital and live issues in this case namely:-
i Did the Defendant/Respondent utter the words complained of?
ii Were the words defamatory of the Appellant?
If EX.6 is irrelevant to prove or disprove any live issue in this case this Court cannot engage in the luxury of finding out whether EX.6 is or is not a lie.
I should have thought that a ground of appeal is one which touches an issue of fact or of law or of procedure in the case and which if upheld will lead to the appeal being allowed. Now can any Court allow this appeal solely on the ground that the Court below observed that "there was no evidence disproving the contents of EX.6 or establishing that the document is false"? My answer is an affirmative and unhesitating NO. But how did the Court below come to make the alleged observation? I will quote from the lead judgment of Pepple, J.C.A. at p.185:-
"I am directed by the Hon. the Chief Judge of Lagos State to refer to your letter dated 17th November, 1980 and to express His Lordship's shock at reading the content of the letter. Not only was his Lordship never aware of any of the matters referred to by you, he had never made any complaint about you to anyone, orally or in writing, about any matter whatsoever or any of the ones mentioned in your letter..." (the italics are mine).
I must confess to an inability to discover just how EX.6 above can ever operate as an estoppel. Littleton put it this way-"A man may be estopped or an estoppel may operate because a man" own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth":-Littleton S667. There was no acceptance by the Defendant in EX.6 that "he made a complaint to the effect that I (the Plaintiff) have made away with some four million Naira, the property of some unspecified persons." An estoppel does not operate in vacuo.
With regard to the judgment in Turburville's case supra Pepple, J.C.A. was right in holding that "it has no application in this case." The ratio decidendi in Turburville's case supra was that "the plaintiffs' cause of action did not accrue until they received notice of rejection of their claim on February 25, 1946, and therefore the time limit had not expired when the Writs were issued on January 23, 1947." By Section 21 of the Limitation Act 1939 an action must "be commenced before the expiration of one year from the date on which the cause of action accrued." Lord Oaksey in his judgment in Turburville's case at p.217 held:-
"On the last question (Is the action barred in the circumstances of these cases?) I am of the opinion that in any event the corporation cannot succeed in view of the correspondence, which shows that they led the plaintiff to believe that the question whether these payments were going to be made was under-consideration until February 1946. In such circumstances the Corporation cannot be heard to say that there was a cause for action before that date" (The Italics are mine).
"Now to turn to exhibit 6. The appellant said the document is a lie. For this document to be termed a lie, evidence must have been led to disprove the truth of its content. But I am unable to find any such evidence nor do I see where the learned trial Judge found it to be a lie."
Whether EX.6 is true or false is a question of fact to be decided by the trial Court. The Appellant gave evidence as P.W.1 and called 7 other witnesses. The only reference made to EX.6 was during the cross-examination of the Appellant at p.60 Lines 15-18 of the record of proceedings:-
"I also wrote to the defendant in 1980 about this matter and got a reply. This is the letter and the reply tendered. No objection Admitted Marked Exhibits 5 & 6."
Surely the above evidence was not in proof of the fact that EX.6 was a lie. Appellant Courts do not try issues of fact. The Court of Appeal was entirely justified in making the remarks it made above on EX.6 Ground 3 therefore fails.
Ground 4 complains:-"Ground 4:
The learned Justices of Appeal erred in law and in fact in holding that the words proven to have been spoken by the Respondent concerning the Appellant, were not defamatory of the Appellant."
The crux of the matter in this ground is-What is in law the meaning of "defamatory"? A man may be defamed in respect of his personal character, or of his office or vocation. The Appellant is a lawyer. There is no allegation in the Statement of Claim that the defamation alleged was in respect of the Appellant's office or vocation. One has then to conclude that it was in respect of his personal character. In such a case the old test usually applied was whether the matter complained of is calculated to hold the Appellant up to "hatred, contempt or ridicule." Parmiter v. Coupland (1804) 6M & W 105 at p.108 per Park B. I must hasten to add that this test is by no means exhaustive. Lord Atkin in Sim v. Stretch (1936) 52 T.L.R.669 at p.671 proposed and applied an easier test namely-"Would the words tend to lower the plaintiff in the estimation of right thinking members of society generally?" But it must be pointed out that in the final analysis whether the statement complained of is defamatory or not will surely depend upon all the probabilities of each individual case and upon the natural tendency of the publication having regard to the surrounding circumstances.
Now what was the slanderous allegation pleaded by the Appellant in paragraph 7 of his Statement of Claim? It is this:-
"I hear that Fred Egbe has dealt irregularly with 4 million Naira the property of other persons." (The Italics are mine).
What exactly is the meaning of the expression "has dealt irregularly"? The Appellant and his witnesses did not even mention that expression or the words pleaded in paragraph 7 of the Statement of Claim. The slanderous words pleaded in paragraph 7 above were said to have been published to Aderemi Odofin and Allison Ayida. These two gave evidence as P.W. 2 and P.W. 3. How did the trial court react to the evidence of publication given by these two witnesses? The answer is to be found at page 92 of the record of proceedings viz:-
"Let us bear in mind that if the defendant uttered any words, the content of those words would be known to three persons, namely, the defendant himself, Mr Aderemi Odofin and Mr Allison Ayida. I raise this issue because I appreciate
it is essential first to determine what are the precise words about which complaint is made. It is the one contained in paragraph 7 of the Statement of Claim; is it the different versions given by Mr Aderemi Odofin at different times or is it the version given in evidence to the Court by Mr Allison Ayida? Neither the conflicting versions credited to Mr Aderemi Odofin nor the one given by Mr Allison Ayida, agreed with the one actually averred in the Statement of Claim. Issues between the parties in trial before the High Court are expected to be joined and settled on the pleadings. If, therefore, at the trial any issue is raised outside the pleadings it goes to no issue and ought to be discountenanced by the Court. As it is, it would appear that no evidence has been led in support of the issue pleaded in the Statement of Claim. That account would have been sufficient for the Court to hold that the plaintiff has failed to establish his claim against the defendant."
The learned trial Judge was saying that the Appellant failed to establish the slander as pleaded by him. If there was such a failure and I agree there was, then the Plaintiff's case should be dismissed, as it was dismissed by the two Courts below.
It was after thus dismissing the Appellant's claim that the learned trial Judge indulged in the luxury of what he called "a fact finding expedition in an attempt to ascertain what merit, if any, there is in this action." At the end of his self-imposed "expedition" he found that the case had no merit. Ground 4 of the grounds of appeal thoroughly misconceived the import of the learned trial Judge's judgment. Having found that neither Odofin, P.W.2 nor Ayida. P.W.3 proved the words alleged in paragraph 7 of the Statement of Claim to constitute the slander, the judge's job was done. Everything he did after that was mere speculation and he made that clear for at page 93 Line 6-10 of the record the learned trial Judge said:-
"I shall for the moment do the plaintiff a favour of identifying the words complained of in the averment in the Statement of Claim as capable of being interpreted to relate and mean either of the words given by Odofin and Ayida respectively."
My only comment is that there is no duty on a trial Court to "do the plaintiff a favour." He either has proved his case or he has not and that should be the end of the inquiry. No appellate Court is obliged to follow the learned trial Judge on his "fact finding expedition" especially as those facts were not the ones pleaded, and being not pleaded go to no issue. Any remark the learned trial Judge made about the evidence of Ayida was therefore obiter and no one appeals against an obiter dictum.
Also if the words pleaded in paragraph 7 of the Statement of Claim are supposed to be an imputation of a criminal offence must be made in clear words. In Lewis v. Daily Telegraph Ltd. (1963) 10B 340 the Court held that spoken words which convey a mere suspicion that the plaintiff has committed a crime punishable by imprisonment will not support an action without proof of special damage. This judgment was affirmed by the House of Lords in (1964) A.C. 234 H.L. What exactly is the meaning of: "Fred Egbe has dealt irregularly with 4 million Naira the property of other people?" Will any jury be satisfied that the above words were equivalent to an absolute affirmation of guilty:-see Tozer v. Marshford (1851) 6 EX.839: Simmons v Mitchell (1881) 6 App. Cas. 156.
In the final result and for all the reasons given above and for the full reasons in the lead judgment of my learned brother Aniagolu, J.S.C. with which I am in complete agreement and which I now adopt as mine, I will dismiss this appeal. I will abide by the consequential orders made in the lead judgment.
Kawu. J.S.C. I have read in draft judgment of my learned brother, Aniagolu, J.S.C. which has just been delivered. I entirely agree with his reasoning and the conclusions therein. I agree that by virtue of the provisions of section 10 of the Limitation Law Cap 70 Laws of Lagos State 1973, the appellant's action was statute-barred. Accordingly I too will dismiss the appeal with
N300.00 costs to the appellant.