Chief Emmanuel Ogunbadejo v. Otunba A.L.A Oyeyemi

The defendant (who is now the appellant before us), is the head of the Kingmakers to the Dagburewe of Idowa Chieftaincy. At all times relevant to this action, that is, 1982, there was a vacancy in the chieftaincy. The plaintiff (who is now the respondent before us) and one Alhaji Yinusa Adekoya were nominated by the Agbonmagbe Ruling House to fill the vacancy. The kingmakers met and made a recommendation to the Governor of Ogun State. Protests followed and the State Government set up an administrative panel to look into the dispute.

Meanwhile, one B.O. Akala of the Arijeloye Royal family of ldowa had on 6th September, 1982, written a letter to the plaintiff, a copy of which was sent to the defendant. During the proceedings of the fact finding administrative panel set up by the Ogun State Government. The defendant produced his own copy of the said letter and handed it over to the chairman of the panel. The chairman read out the letter at the Inquiry and admitted it in evidence. It is the contents of this letter that the plaintiff complained of in the subsequent action instituted by him against the defendant as constituting libel of him. He claimed N5,000.00 damages in the said action. At the hearing of the action, the plaintiff, in proof of the alleged libel, tendered in evidence a certified true copy of the report of the fact finding administrative panel. The report at page 119 of it contains a reproduction of the letter containing the alleged defamatory words. Defendant’s counsel objected to the admissibility of this report but was over-ruled. He also objected to the admissibility of page

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119 of the report containing the reproduction of the said letter. He was also overruled. The report was admitted in evidence as Exhibit A-A 139 and page 119 of it as Exhibit A 119. The defendant led no evidence at the trial at the conclusion of which.

After addresses by learned counsel for the parties, the learned trial Judge found for the plaintiff and awarded him N5,000.00 damages. The defendant was displeased with this judgment and appealed to the Court of Appeal. The plaintiff who was aggrieved as to the quantum of damages filed a  respondent’s Notice to vary the award of damages by increasing same. The Court of Appeal dismissed the defendant’s appeal and after holding that the plaintiff could not come by way of a Respondent’s Notice to vary an award of damages, struck out the notice filed by the plaintiff. Both parties are aggrieved by the decision of the Court of Appeal and have appealed to this court. The main issue that calls for determination in the defendant’s appeal is as to whether or not the report of the administrative panel was admissible in evidence and whether Ex. A119 could be held to constitute proof of the alleged libel.

In respect of tile cross-appeal, the main question for determination is as to whether the Court of Appeal was right in holding that the plaintiff could not complain against award of damages by way of a Respondent’s Notice. Both parties filed and Exchanged their respective briefs of arguments on the two appeals and learned counsel addressed us in oral argument. I shall deal first with the main appeal, that is, the defendant’s appeal. Mr. Ayanlaja learned counsel for the defendant in submitting that

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Exhibit A,A 139, that is, the report of the fact finding administrative Panel of Inquiry set up by the Ogun State government was inadmissible in the present proceedings relied on section 10 of the Commission of Inquiry Law Cap.24 Laws of Ogun State, Mrs. Obe learned counsel for the plaintiff/respondent submitted that reliance on section 10 of the Commission of Inquiry Law by learned counsel for the appellant was a new issue as the point was never raised in the courts below. She also submitted that the Law being a state legislation could not override the provisions of the Evidence Act. She finally submitted that the report being a public document was admissible in evidence under the Evidence Act.

To succeed in a claim for libel, it is settled law that the actual defamatory words complained of must be proved. To do this the plaintiff must tender in evidence the document containing the alleged libel. Where a plaintiff is unable to produce the original libel, however, he can give secondary evidence of it. In order to discharge this burden, the plaintiff in the case on hand tendered in evidence a certified true copy of the report of the administrative panel set up by the Ogun State Government. This report contains a page wherein the letter allegedly containing the defamatory words was reproduced. It is the contention of learned counsel for the defendant that the report is inadmissible in law. He relies on section 10 of Cap.24 Laws of Ogun State in support.

Mrs. Obe of counsel for the plaintiff submits that learned counsel for the defendant/appellant has raised a new issue. I do not agree with this. The issue in contention is the admissibility or otherwise of the report of the panel. By

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citing before us section 10 not cited in the courts below, learned counsel for the appellant is only raising a new argument to support his submission that the report is inadmissible. Now section 10 reads:

“No evidence taken under this law shall be admissible against any person in any civil or criminal proceedings whatever, except in the case of a person charged under section 12 of this Law with giving false evidence before the Commissioners.”

To the extent that the report tendered in evidence at the trial of the action leading to this appeal contains the evidence led at the inquiry it is clearly inadmissible under the above provision. Furthermore, that part of the report which contains the facts as found by the administrative panel cannot be said to be relevant to the issue of libel, the subject matter of the plaintiff’s action and that part will equally be inadmissible.

Having regard to section 10 and the rule of evidence as to relevancy, therefore, Exhibit A to A139 was wrongly admitted in evidence and should be expunged from the record.

Mrs. Obe submits that section 10 being a State legislation cannot override the provisions of the Evidence Act. She has not directed our attention to any section of the Evidence Act which makes the report of a Tribunal or Commission of Inquiry admissible in evidence. On the contrary, section 8 of the Tribunals of Inquiry Act Cap. 447 of the Laws of the Federation of Nigeria 1990 prohibit, like section 10 of Cap.224 of Ogun State, the admissibility of evidence taken at an Inquiry under the Act. It is my conclusion that section 10 is not in conflict

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with the Evidence Act. The report, Exhibit A/97A 139 being inadmissible and the letter containing the libel not having been tendered in evidence, it follows that the alleged libel was not proved by plaintiff and on that ground alone his action ought to have been dismissed. Assuming, but without deciding, that the report is admissible in evidence, Exhibit A/19 is at best only secondary evidence of a letter said to have been produced at the Inquiry by the defendant. Section 97(1) of the Evidence Act lays down the conditions under which secondary evidence would be admissible.

I can see no evidence on record to support in this case the admissibility of secondary evidence in place of primary evidence of the contents of the letter containing the alleged defamatory words. There is no evidence as to why the original of that letter was never produced, moreso when it was written to the plaintiff himself. Nor is there any evidence as to why the copy sent to the defendant and said to have been tendered by him during the proceedings of the panel (and presumably still in the possession of the Panel’s Secretary) was not tendered in evidence at the trial of the  action. The learned trial Judge was clearly wrong in admitting page 119 of the report in evidence and the Court of Appeal was equally wrong in affirming that decision. Thus both under section 10 of the Commission of Inquiry Law of Ogun State and section 97(1) of the Evidence Act the report and, in particular, page 119 thereof were wrongly admitted in evidence.

Having come to this conclusion it follows that the appeal must succeed and it is hereby allowed. The plaintiff having  failed to prove the defamatory words complained

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of by him, his action fails and it is hereby dismissed by me. The learned trial Judge found in favour of the plaintiff and awarded him N5,000.00 damages. The plaintiff considered this amount too low but rather than appeal against it, his learned counsel at the Court of Appeal filed a respondent’s Notice under Order 3 Rule 14(1) of the Court of Appeal Rules.

The Court of Appeal  in its judgment, per Omololu Thomas, J.C.A., held the view that the Notice to vary the award of damages by increasing same was incompetent. I entirely agree with the Court of Appeal. Order 3 Rule 14(1) of the Court of Appeal Rules states:

“A respondent who, not having appealed from the decision of the court below, desires to contend on the appeal that the decision of that court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect, specifying the grounds of that contention and the precise form of the order which he proposes to ask the court to make, or to make in that event, as the case may be.”

Pursuant to this rule the respondent in the Court of Appeal who is now the cross appellant before us filed a respondent’s Notice praying the court below to substantially increase the award of damages made by the trial Judge upon the grounds that:

“1. The learned trial Judge erred in law in holding that the damages caused by the publication of the words complained of was limited in scope, when:

(i) There was uncontradicted and uncontroverted evidence before the learned trial Judge that the name of Senyoruwa was notorious in Idowa history as a person

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who had attempted to dethrone a reigning Oba, and who had never himself become an Oba;

(ii)The plaintiff was one of two contestants for the vacant Obaship of Idowa at the time of the publication of the words complained of;

(iii)There was uncontradicted and uncontroverted evidence that as a result of the publication of the words complained of, the plaintiff lost a lot of support in his candidacy for the vacant Obaship of Idowa, and was shunned by the citizens of Idowa over whom he aspired to rule:

(iv) In this circumstance, the sum of N5,000.00 damages awarded in favour of the plaintiff was most inadequate to compensate for the harm done to him by the malicious publication of the words complained of:

2. The learned trial Judge misdirected herself in law and on the facts when she said as follows: ‘There must have been some exchanges of uncharitable words in the course of enquiry.’ When:

(i) there was no evidence before the learned trial Judge to support this conclusion;

(ii) it was never suggested either during the course of evidence or during address by counsel that uncharitable words had been exchanged;

(iii) the learned trial Judge was thereby making out a case to excuse the defendant’s actions which the defendant had not made out for himself.”

In effect the defendant contends that the reasoning of the learned trial Judge leading to her award of damages is erroneous and ought to be set aside. Can he maintain this contention on Respondent’s Notice? Or must he file an

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appeal challenging the correctness of the learned trial Judge’s reasoning? If one goes by the argument in the respondent’s brief in the court below, one would see that the defendant’s contention was to the effect that the learned trial Judge’s award of damages was affected by wrong principles of law.

This court dwelt fully on the characteristics of a Respondent’s Notice when considering Order 7 Rule 13(1) of the former Rules of this Court. Order 3 Rule 14(1) of the Court of Appeal Rules under consideration is inpari materia with Order 7 Rule 13(1) of the former Rules of the Supreme Court.

Delivering the judgment of this court in Lagos City Council v. Ajayi (1970) 1 All NLR 291, G.B.A. Coker. J.S.C. observed at page 296 of the report:- “Another characteristic of Order 7, rule 13(1) is that it is applicable only where the respondent intends to retain the judgment but at the same time wants it varied; so where a respondent intends for instance to dispute the jurisdiction of the court of trial or to contest competency of the entire proceedings or to maintain the absence of a fundamental prerequisite, it seems he cannot come under this rule.” In that case he has to file a substantive cross appeal. The basis for this is clear for a man cannot at the same time obtain an advantage by maintaining a particular standpoint and then seek to discard that same standpoint whilst keeping the advantage. As Lord Esher, M.R. observed in Roe v. Mutual Loan Fund Ltd. (1887) 19 Q.B.D. 347 at p. 350:- ‘I base my judgment on this, that the bankruptcy proceeded on the basis that the bill of sale was valid, and that this was with the knowledge and

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acquiescence and for the benefit of the plaintiff, who thereby affirmed that the bill of sale was valid, and cannot now be heard to say that it was invalid in order to obtain a further advantage. I cannot therefore agree with the judgment appealed from, and the appeal must be allowed.’  Continuing, the learned Justice of the Supreme Count at pages 296 to 297 concluded:-

“The result of the enquiry therefore is that the notice under Order 7, rule 13(1) applies where a particular point in the appeal of the appellant is being stretched by rile respondent who contends for its maintenance but proposes a variation of it if that be the only way by which he could be enabled to retain the judgment. It would seem however that once a respondent’s notice has been given, the appellant cannot prevent the respondent having the point raised in his notice argued by withdrawing his (appellant’s) notice of appeal. See in Re Cavander’s Trusts, supra. The notice filed by the respondent in his case clearly seeks to retain the judgment but requests a variation of the amount awarded by that judgment. The notice postulates that the approach of the learned trial Judge to the case was correct, but that his conclusions had adversely affected the respondent who thereby contends that by the same reasoning of the learned trial Judge he should have received a greater award.” (Italics is mine for emphasis).

Again in Eliochin (Nig) Ltd. V. Mbadiwe (1986) 1 NWLR (Pt.4) 47, this court had another opportunity of examining the scope of a Respondent’s Notice and it held that the respondent seeking to set aside a finding which is crucial and fundamental to a case can only do so through a

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substantive cross’ appeal and not by way of a Respondent’s Notice, Oputa. J.S.C. in his judgment in the case observed at pages 72-73:

“I will now consider the provisions of Order 7 rule 13(1) of the Supreme Court Rules 1977 (now Order 8 Rule 3) of the Supreme Court Rules 1985 dealing with affirming the judgment appealed against on other grounds. That Order stipulates: Order 7 Rule 13 (1) It shall not be necessary for the respondent to give notice of motion by way of cross-appeal, but if a respondent intends upon the hearing of the appeal to contend that the decision of the court below should be varied, or that it should be affirmed on grounds other than those relied on by that court he  shall within one month after service on him of the notice of appeal cause written notice of such intention to be given to every party who may be affected by such contention……… In such notice the respondent shall clearly state the grounds on which he intends to rely . The most important word in the rule reproduced above is “decision”. By section 277(1) of our 1979 Constitution:”S.277(1) ”decision” means, in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation. Decision as defined above does not mean judgment although it includes a judgment. In the case on appeal, the fulcrum around which everything else revolves is the issue whether or not the plaintiffs were in lawful possession or in unlawful possession and therefore trespassers. The determination of  the Court of Appeal was that the plaintiffs were all in lawful possession. They were not trespassers. It was also a determination of the

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Court of Appeal that the defendant’s action amounted to trespass. If these two determinations or decisions are affirmed as requested by the defendant/respondent in his notice, then the logical and in fact the only result will be not a dismissal of the appeal, definitely not, but the allowing of the appeal. Chief Onyiuke, SAN, gallantly conceded that if trespass is proved against the defendant, the  plaintiffs’ claim for exemplary damages will be no reason or excuse for denying the successful plaintiffs some damages, be that general or even nominal. Both parties – plaintiffs/ appellants and defendant/respondent – therefore agreed that the Court of Appeal was wrong in not awarding damages of any kind simply because exemplary damages were claimed. What decision of the Court of Appeal now remains to be affirmed on grounds other than those relied upon by the court below? I do not see any. The ground relied upon by the Court of Appeal in dismissing the plaintiffs’ appeal was unfortunately Erroneous and cannot be affirmed in any event and on any ground. The present appeal does not therefore lend itself to the invocation of the procedure under the then Order 7 Rule 13(1) now Order8 Rule 3, Rules of the Supreme Court 1985. It lends itself only to a cross-appeal to reverse the pernicious and devastating findings of the court below without which this court cannot but allow the appeal. A respondent can only come under Order 8 Rule 3 of the Supreme Court Rules (or the old Order 7 Rule 13) if On the fact and on the law the decision of the court below will in any event be affirmed.” (ltalicising mine).

In Adekeye & Ors v. Akin Olugbade (1987) 3 NWLR (Pt.60) 214 this court affirmed its earlier decisions

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in Lagos City Council v. Ajayi (supra) and Elochin (Nig) Ltd. v. Mbadiwe (supra). See also Ogunlade v. Adeleye (1992) 8 NWLR (Pt.260) 409, 424. 425.

It is clear from the grounds of appeal and the arguments in the respondent’s brief in the court below that the defendant was challenging the reasoning of the learned trial Judge in arriving at the award of N5,000.00 damages. In my view he could only do so successfully by appealing and not by way of respondent’s Notice. In Lagos City Council v. Ajayi (supra), the appellant appealed against the award of damages made by the trial Judge complaining of misdirection by the learned trial Judge in arriving at the conclusion on which he had based his decision. Thus the setting aside of the decision of the trial Judge in that case on the quantum of compensation was challenged by the appeal. The respondent however, sought to retain that decision but contended that the award made be increased on the ground that if the learned trial Judge had not erred in law, he would have assessed the monetary compensation at a much higher figure. This court held in that case that a respondent could come by way of a respondent’s Notice.

In the present case, the  appeal to the Court of Appeal was not on the issue of quantum of damages but rather on liability. The defendant, who, as respondent in the court below, sought to challenge the reasoning of the trial Judge in arriving at the quantum of the award made could, in my view, only do so by way of an appeal and not by way of a respondent’s Notice.

In conclusion therefore, I am of the view that the court below was right in striking out the respondent’s Notice

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and consequently the cross-appeal fails and it is dismissed by me. The defendant having succeeded in the main appeal and the cross-appeal is entitled to his costs both in this court and in the courts below. I award to him N 1,000.00 costs of this appeal, N500.00 costs of the appeal in the Court of Appeal and N300.00 costs of the trial making a total of  N1,800.00 costs to be paid by the  plaintiff/respondent.