In the High Court of the Federal Capital Territory, Abuja Judicial Division, Holden at Wuse, Zone 5 Court 9, Abuja.
Before His Lordship: Hon. Justice O.O. Goodluck, Suit No. FCT/HC/CV/129/06
Mr. Kayode Sunmola (plaintiff) and
Bashurun J. K. Randle (defendant).
Relying on this provision, defendant’s counsel has submitted that the facts averred in paragraphs 4, 6,9, 14, 15, 17, 21, 24, 35 of the statement of defence should be deemed as being true in the absence of a denial of these facts by the plaintiff. Furthermore, A Ajaniyi, reasons that the general rule in civil proceeding is that where issues are joined, parties are obliged to lead evidence in support or rebutted of the issues joined. He has rightly submitted that there is no need to lead evidence in proof of a fact that is not disputed by the adverse party.
In sum, defendant’s counsel has urged this court to admit that all the facts that have not been expressly denied by the defendant need not prove facts that are deemed admitted. Learned counsel for the plaintiff, Demola Bukre, on the contrary, referred this court to order 23 rule 10(1) and (4) of this court (civil procedure) rules submitting that by the combined effect of the aforestated rules of court, there is an implied joinder for every defence even where no reply hs been filed. He went further to rely on the decision in Orja v. Ugochukwu (2009) 14 N. W1, R(Part 116) page 207 wherein it was held that “The general rule in civil procedure is that issues are joined upon pleadings and when issues are joined by parties, then evidence is led to support or rebuttal on the issues joined. What flows from that is there is no right to call evidence on a matter upon which issues are not joined”.
With respect to learned counsel for the plaintiff, this court is of the view that he failed to appreciate the full purpose of order 23 of this court’s (civil procedures) Rules 2004, which deals with the rules of pleadings generally. Besides, the case cited by him in my view fortifies the submission of learned counsel for the defendant.
This court’s position on the issue of pleadings is that even where there is an implied joinder, both patties are legally obliged to proffer evidence in support or rebuttal of the facts pleaded. Failure to advance evidence in support of pleaded facts would amount to an abandonment of the impliedly or expressly pleaded facts. In such a case, the court will rely on the evidence of the party who proceeds to lead evidence on the joined issues while discountenancing the facts pleaded by the party who has failed to lead evidence in proof of the pleaded facts. Where issues are not joined the court can deem the pleaded facts, which have not been controverter by the adverse party as the truth or admitted facts.
It is noteworthy to state that even where a party denies a fact, it shall not be sufficient to deny any allegation of fact. He must expressly react by stating cogent and substantial facts in answer to the allegation. See Order 23 Rule 13, 14(1) and (2) of the civil procedures Rules of this court.
Upon a careful perusal of the state of pleadings, it is noted that the defendant raised fresh issues in his statement of defence, which ought to have been denied by the plaintiff by way of a reply. In the instant case, the plaintiff failed to file a reply to the defendant’s assertions in paragraphs 14, 14(a-e) of the defendant’s statement of claim.
The effect of the plaintiff’s failure to file a reply is that the plaintiff failed to join issues with the defendant on those paragraphs. In effect, this court will deem the averments to the effect that the plaintiff diverted cheques to the firm’s dominant Skye bank account and swallowed up all the firm funds for his personal use and investment account as being true as these facts were not challenged by pleadings or evidence. In the light of the foregoing, this court’s answer to defendant’s issue three is answered in the affirmative.
That said plaintiffs issue one, as well as the defendant’s issue one, would be considered together, noting that they move or less overlap and relate to the main cause action in this suit”.
See the case of Mayange v. Punch (Nig) Ltd (19947 N.WLR(Part.358 page 578 at page 585 paragraphs D.E and the case of Nigeria v. Nsirim v. Nsirim 3 N.WLR. (Part 138) page 285.
All these enunciated principles must be established by the plaintiff herein in order to succeed in his action for defamation.
Taking the third principle first, that is, could it be said the words complained of are defamatory of the plaintiff? In the case of AMORC v Awoniyi & ORS (1994) 7N. WLR (Part 355) page 154. The Supreme Court cited with approval the decision of Green LJ in the case of Tolley v. Fry 1930 JKB467 where his Lordship held that Words are not defamatory, however much they may damage a man in the eyes of a section of the community unless they also amount to disparagement of his reputation in the (eyes of right thinking man generally to write or say of a man something that will disparage him in the eyes of a particular sections of a community but will not affect his reputation in the eyes of the average right-thinking man is not actionable with the law of defamatory”.
Applying the Apex Court reasoning to the case (before this court, the crucial question is whether the words used by the defendant amounts to the vilification of plaintiffs reputation in the eyes of the average right-thinking man? In answering this poser, I consider it expedient to reproduce hereunder the letters giving rise to this action against the defendant with the objective of determining (whether the words used therein are libelous.
Plaintiff in paragraphs 19 and 26 of his statement B of claim pleaded the letters dated August 15, 2006, and contended that the words herein greatly injured his credit and professional reputation.
The letter of August 15, 2006, exhibit P. WID goes thus Mr. Akinsola Akinfenwa Managing Director, Skye Bank Group Plot 707 Adeola Hopewell Street Victoria Island. Dear Sir, Re: Kayode Summolal shall be grateful if you would urgently investigate the circumstances whereby the above named was liable to open an account at your 142 Ahmadu Bello Way, Victoria Island, Lagos in the name of my firm without my knowledge and consent. Cheques belonging to the firm were subsequently diverted to the account and within a matter of days were siphoned off.
A copy of the bank statement is attached herewith. This is clearly a fraudulent transaction and I shall hold your bank responsible for any loss suffered by my negligence.
J. R. Randle & Co.
Bashorun J. K. Randle Chairman and Chief Executive cc: (1) Professor Charles Soludo, Governor Central Bank of Nigeria.
(2) Alhaji Musliu Smith Chairman Skye Bank Group. The 2nd letter, admitted as exhibit P.WJK. states thus: August 24, 2006.
Mr. Edward Hudson/Moore Stephens I, Snow Hill London ECIA 2HD.
Please find enclosed herewith a copy of statement of account opened by Kayode Sunmola without my knowledge,
J.K. Randle & Co
(SGN) Bashorun J.J. Randle.
Chairman and Chief Executive This dormant account was utilized by Kayode to siphon funds from the firm”.
Having carefully examined both exhibits P.W.IK and P.W. ID this court is not left in doubt that both documents impute a fraudulent conduct or involvement of the plaintiff in the handling of the firm’s account. Consequently, a cause of action in libel lies against the author of both letters, without need for proof of actual or special damages suffered by the plaintiff. See again the case of Mayange v. Punch supra at page 582 paragraph B.
Flowing from the leadings and evidence adduced by both parties, this court can reasonable hold that other ingredients of defamation enunciated in the Mayange v. Punch case supra has been established before the court, this court holds that there was a publication of defamatory words in exhibits P.W.ID and P.W.IK without doubt, the publication of the instant case the defendant has admitted the communication of the letter to Edward Hudson, Professor Soludo, while copies of exhibit P.W.ID were copied to Alhaji Musliu Smith, as well as Mr. Akinsola Akinferiwe, Skye Bank’s manager.
The bone of contention going by the state of pleadings filed by the parties is on the falsehood (or otherwise) of the allegedly offending words contained in exhibits P.W.ID and P.W.IK Demola Bakre, counsel for the plaintiff, in his written address dated May 24, 2010, has commended this court to the learned author Gartley in his book titled: Gatley on libel and slander: paragraph 113, There, it was held that in an action for defamation, as opposed to all other actions, there is a presumption that an imputation is false. There is thus a burden on the defence to prove otherwise. Thus being the case, the next hurdle for the defendant is to discharge the burden of proof by establishing that the offending words are true.
Learned counsel for the plaintiff has submitted that there was no evidence to show the reason why the funds were transferred from the firm’s account to a partners account. He further posits that it would be wrong for this court to speculate that the firm’s funds were fraudulently transferred without proof. He referred the case of CAP Plc v. Vital Investment Ltd (2006) 6 N.W.L.R. (Part 976) and urged this court to hold that the defendant has failed to establish that the funds were fraudulently transferred. It appears that the plaintiff’s counsel lost sight of the defendant’s pleadings and evidence in this regard, while admitting the fact that he wrote exhibits P.W.ID and P.W.IK D W. I assets in paragraphs 11, 12, 13, 14, 15 (a-c) that the firm of J.K. Randle opened the Skye Bank account with the objective of obtaining a loan which was not granted.
He further disclosed that the account became dormant. D.W.I averred that the plaintiff diverted the funds paid vide the firm’s cheques from this account into his personal account until the entire funds were swallowed up by him for his personal use.
Defendant further assets that the reactivation and transfer of the firm’s account from its domicile branch to Victoria Island was without his authorisation or knowledge, weighty as these allegations are the plaintiff failed to file an answer in reaction. Besides, the testimony of D.WI in this regard was not impugned under cross-examination by the plaintiff.
Judiciary As Last Hope Of The Common Man
The judiciary is said to be the last hope of the common man. If there is no judiciary or where the judiciary is shut, the hope of the common man is dashed. If the saying is anything to go by, one is shocked that for nearly two months, the last bastion of hope of the masses was shut by striking workers, yet it has been business as usual. Both the government and the workers union are not bothered about the ugly situation.
Judiciary Staff Union of Nigeria (JUSUN) is on indefinite strike nationwide to protest the inability of both the federal and some state governments to grant financial autonomy to the judiciary. The independence of the judiciary is contained in Nigeria’s grundnorm, the Constitution of the Federal Republic of Nigeria 1999 as amended. Just as the positions of President and Governors of states are creations of the constitution, so also is the independence of the judiciary.
The truth of the matter is that JUSUN does not need to go on strike before the two tiers of government can implement the financial autonomy of the judiciary. It is a constitutional provision and political office holders swore to implement the spirit and letters of the Constitution.
Indeed, the judiciary and legislature are supposed to be independent as provided in the Constitution. When the three arms of government are independent, separation of powers is assured. This is because it will prevent fusion of powers which leads to tyranny. Fusion of powers smacks of dictatorship. In many states of the federation, governors have become absolute rulers.
It is becoming common that some state governors find it easy to shut the judiciary in order to have their way when unfavourable conditions tend to persist in their states.
For eight months, Rt. Hon. ChibuikeAmaechi shut the judiciary following an indefinite strike embarked upon by JUSUN. The closure of the courts caused a lot of hardship for both practising lawyers and litigants. Some lawyers who could not make ends meet died as a result. Litigants suffered lack of access to justice.
The indefinite strike embarked upon by JUSUN to demand financial autonomy is commendable because of its insistence on propriety obviously intended to prevent state chief executives from ruling on their whims and caprices.
But pathetically, many governors are unwilling to allow an independent judiciary that they will no longer hoodwink or coerce to do their biddings. The delay in implementing the autonomy is predicated on the fact that most of our leaders are bigger than the country’s institutions.
Hence, we have strong leaders and weak institutions. At the federal and state levels, the suppression of the country’s main institution has aided tyranny.
Consequently, the governors and even the president can afford to do anything unconstitutional and go scot-free with it.
The national and some state Houses of Assembly have become rubber stamps ready for the masters’ use anytime. Therefore, one hardly finds meaningful debates in the legislature except in states that have strong opposition. In the states, where all the members of the legislature come from the ruling party, meaningful debate is moonshine.
The fashionable term is “Carry go”. The term “Carry go” literally means treat as requested. There is obviously no alteration or modification. The application of “Carry go” has continued to worsen the state of our democracy. The governors or the president can afford to do anything he likes without any compunction. Consequently, the masses and indeed the electorate do not have a voice anymore. The voices of the electorate are lost in the legislators’ inefficiency and cowardice.
The country is worse for it. What we have in most states of the skewed Nigerian federation are monarchs, who brook no challenges. They rule howsoever they like, for themselves and their various families. They have goons all over their states whose duty it is to defend them. If not for the state of our nation where rust is ripeness, do the President and Governors have no choice in implementing the constitution?
Many state chief executives implement and execute projects that would facilitate corruption yet any project that would better the lot of the people is either treated with levity or left undone. The question that readily comes to the mind is: whose interest are the leaders working for? Is it for themselves or the populace?
By: Chidi Enyie
Elele OSPAC Seeks Govt’s Assistance
Elele Security Planning and Advisory Committee has appealed to the state government to come to their aid.
The local vigilante often called ESPAC said the call became imperative following its key role in sustaining peace in the communities.
In a chat with newsmen in his office yesterday, the commander, Daniel Wosa disclosed the unbearable situation his men faced on daily basis without anything to take home.
Wosa said some of his men had threatened to quit the voluntary job since nobody appreciated them.
The commander expressed regret that ESPAC members had volunteered to sacrifice their lives for the society yet nobody appreciated them.
“Some struggle to feed their families. It is unfair …”
“We appeal to governor Nyesom Wike to consider us because of the key role we have been playing in Rivers state.
“Today communities,road users and business men can attest to our untiring effort since we came on board.”
“No more kidnapping, killing and other vices which threatened the peace of the land,” he noted.
“Boys under me who volunteered to sacrifice for the wellbeing of others need recognition,” he stated.
Wosa said there was no security challenge the group could not contend if only government could give them support.
He specifically commended the executive Chairman, Ikwerre Local Government Area, Hon Samuel Nwanosike for his assistance and said if not Ikwerre Council boss the situation would have degenerated.
Wosa said some time now he had been using his hard-earned money to appease his men.
Wosa said it was on record Elele OSPAC had never been found wanting in the cause of its duty and explained that the group worked in collaboration with the conventional police to achieve desired objective
Meanwhile,a youth leader in Ikwerre Local Government, Comrade Eleonu Chukwuka says Hon Samuel Nwanosike’ s achievement in security has given him the second term ticket.
Comrd Chukwuka said Ikwerre Council Boss had written his name in gold by surmounting the security situation in Ikwerre.
The youth leader while chatting with newsmen said the introduction of OSPAC by Nwanosike led to other infrastructural and human capital development and pointed out that peace was key to development.
It is a thing of joy that farmers can return to farm. Normal life has returned.
It is the greatest achievement which snowballed to what we are seeing today in Ikwerre.
Ikwerre people are proud of him and will back till eternity.
Legal Departments In LGAs And Justice Dispensation
Lawyers at the Local Government (LG) Legal Department would supervise and undertake prosecu-torial activities in magistrate courts, and represent their respective local governments in area courts, Magistrates Courts, High Courts, among others.
They would be on hand to render necessary legal advisory services to their local governments.
They could be in charge of advising their LG Chairmen on legal issues relating to issuance of the Customary Right of Occupancy at the LG level, thereby playing roles similar to those being played by the ministries of Justice and Lands at the State level in the Statutory Right of Occupancy. Section 6 of the Land Use Act, 1978 provides: “It shall be lawful for a Local Government in respect of land not in an urban area. (a) to grant customary rights of occupancy to any person or organi-sation for the use of land in the Local Government areas for agricultural, residential and other purposes. (b) to grant customary right of occupancy to any person or organisation for the use of land for grazing purposes and such other purposes ancillary to agricultural purposes as may be customary in the local government area concerned”.
They could take steps to set up (citizens) ADR/Mediation centres at the LG level, as well as render other legal aid/advisory services aimed at helping the local community or to make justice more affordable and easily accessible by local inhabitants.
Establishing a legal department at the LG level will tremendously reduce the pressure of having all lawyers striving to settle down only in major cities, such as Lagos, Port Harcourt, Kano, Onitsha, Aba, Ibadan, Jos, Abuja, Enugu City, Uyo, Warri, Calabar, Kaduna City, etc; lawyers employed by the various local governments would have to relocate to the local council headquarters where they’d live and operate from, with their families.
Establishing a legal department at the LG Level would bring lawyers and legal services closer to the people at the grass-root; residents of local communities will no longer need/have to travel to the major cities in order to get the services of lawyers to draft their various agreements, contracts, or to render other legal services.
Lawyers in the LG Legal Departments will, apart from attending to the legal needs of the local government councils, assist in prosecution of some cases, especially in courts located within the local council areas. This will minimise involvement of law prosecutors in criminal prosecution. Lay police officers‘ and non-lawyers’ continued involvement in criminal prosecution in Nigeria, is partly responsible for the worsening cases of awaiting trial cases and prison congestion in the country.
This is because of their professional limitations in this area, so many of the so-called police prosecutors are not able to match or withstand the legal firework of professionally qualified lawyers who act as defence counsel in courts during criminal prosecutions; these lay police officers and non-lawyers hardly understand the intricacies of formal courtroom proceedings and trial procedure, and more often than not, have very little or no preparation prior to their court appearances.
It may therefore be seen that the clamour for extrication of lay policemen from criminal prosecution is primarily not targeted at creating more jobs for lawyers, but rather at leaving criminal prosecution in the hands of qualified personnel (lawyers) who alone understand the law and are well able to match the expertise of defence counsel in court, in order to ensure that justice was dispensed in good time and more effectively.
Gradually, from among these lawyers, who are LG legal officers, some magistrates or even judges are appointed, just as it is done at the state level.
Establishing a legal department at the LG level would provide huge job/employment opportunities for lawyers in Nigeria.
Imagine, if all the 774 local government areas in Nigeria could create and have legal departments, and each local government (depending on capacity) employs an average of 10-20 lawyers in its legal department, we’d have at least 7,740 to 15,480 lawyers or much more immediately gainfully employed at the local government level.
Establishing a legal department at the LG level would redress the existing inequity and unfairness at the local government level. The following departments already exist in all the LGAs in Nigeria: Education, Health, Agriculture, Finance, Information, and Works. It’s gross marginalisation against the legal profession that there’s not yet a legal department in all LGAs in Nigeria. This obvious anomaly, which has wreaked huge havoc, considering the undeniable importance of law and lawyers in society, needs to be be urgently corrected to provide the needed balance that would make lawyers more relevant to society and move society forward.
B) Stakeholders To Make This All-Important Project A Reality:
The Nigerian Bar Association (NBA) at both the National and Branch levels: NBA has responsibility to set the ball rolling. Indeed, if the NBA does nothing, nothing happens.
The Attorney-General of the Federation of Nigeria, considering that he is the Chief Law officer of the Federation.
Attorneys-General of the various states in Nigeria.
The Chief Justice of Nigeria.
The President of the Court of Appeal.
The Chief Judge of the Federal High Court and the President of the National Industrial Court of Nigeria.
The Chief Judge of the Federal capital High Court and the High Courts of the various States in Nigeria.
The House of Assembly of the various States in Nigeria.
The Nigerian Governors‘ Forum and the Governors of the various States in Nigeria.
The Body of Senior Advocates of Nigeria (BOSAN), the Egbe Amofin Lawyers, the Body of Benchers (BOB), the Eastern Bar Forum (EBF), the Muslim Lawyers’ Association of Nigeria (MULAN), the Mid-West Bar Forum (MBF), the Christian Lawyers’Association of Nigeria (CLASFON), the National Association of Catholic Lawyers (NACL), etc.
C) Conclusion: What Does This Take As A First Step?
It starts with an amendment to the Local Government Law of each State, to create a legal department in the LGAs in the state.
This is long overdue. Provision of necessary logistics and support infrastructure would then follow.
This writer believes that there would be business enough for lawyers in Nigeria, only if the lawyers could, by themselves and working hand in hand with their Bar Associations, put their acts together and stand up to do something concrete and constructive for themselves and their profession.
Time for action is now; there is no time to wait or waste, because time will never be right. Barack Obama said, “the change we desire will not come if we wait for some other person or some other time. We are the ones we’ve been waiting for. We are the change that we seek. A stitch in time saves nine.”
It would be recalled that lawyers under the employment of Local Government Authorities in Rivers state, penultimate week, demonstrated for full recognition and salary increment to match that of their counterparts in the employment of the State Government, while the Authorities are against such on the ground that they (lawyers), are first and foremost, not employed as lawyers by the authorities, thus, may be making an unlawful request.
Udemezue is of the Civil Litigation Department with the Nigeria Law School.
By: Sylvester Udemezue with reports from King Onunwor
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