Law/Judiciary
‘In An Action Of Defamation, There Is Presumption That An Imputation Is False’
In the High Court of the Federal Capital Territory, Ahuja judidal Division,
Holden at Wuse, Zone 5 Court 9, Abuja,
Before His Lordship: Hon. Justice O. O. Goodluck, Suit No. FCT/HC/C/CV/129/06
Between:
Mr. Kayode Sunmola (plaintiff) and
Bashorun J. K Randle (defendant).
Relying on this provision, defendant’s counsel has submitted that the facts averred in pcrragraphs 4,6,9, 14,15,17,21,22,23,24,28,29-35 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 Ayanniyi, reasons that the general rule in civil proceedings is that where issues are joined, parties are obliged to lead evidence in support or rebuttal 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 Bakre, 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 to every defence even where no reply has been filed. He went further to rely on the decision in Orja v. Ugochukwu(2009)14 N.W.L.R(Part 1161) 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 in support or rebuttal on the issues joined. What flows from that is there is no need 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 purport of order 23 rules (9), 10(1)(2) and (4) vis-a-vis the entire provisions of order 23 of this court’s (civil procedure) 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 take on the issue of pleadings is that even where there is an implied joinder, both parties 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 issued while discountenancing the facts pleaded by the party who has failed to lead evidence in proof of his 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 procedure 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-c) 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 dormant 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 to defendant’s issue one, would be considered together, noting that they more or less overlap and relate to the main cause action in this suit”.
See the case of Mayange v. Punch (Nig.) Ltd. (1994) 7 N.WLR (Part 358}-585 page 570 at page 585 paragraphs D-E and the case of 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) 7 N.WLR (Part 355) page 154. The Supreme Court cited with approval the decision of Green L J. in the case of Tolley v. Fry 1930 IKB 467 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 men 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 August and 24, 2006, and contended that the words herein greatly injured his credit and professional reputation.
The letter of August 15, 2006, exhibit P.W1D goes thus Mr. Akinsola Akinfenwa Managing Director, Skye Bank Group Plot 707 Adeola Hopewell Street Victoria Island. Dear Sir, Re: Kayode Sunmolal 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 here-with. This is clearly a fraudulent transaction and I shall hold your bank responsible for any loss suffered by my firm through your bank negligence
Yours faithfully,
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.W.J.K states thus: August 24, 2006.
Mr. Edward Hudson/Moore Stephens I, Snow Hill London EC1A 2HD
Dear Eddie,
Please find enclosed herewith a copy of statement of account opened by Kayode Sunmola without my knowledge.
Yours sincerely
J. K. Randle & Co
(SGN) Bashorun J. J. Randle
Chairman and Chief Executive This dormant account was utilised 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.