‘In An Action Of Defamation, There Is Presumption That An Imputation Is False’

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

Between:

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.

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.WJK. states thus: August 24, 2006.

Mr. Edward Hudson/Moore Stephens I, Snow Hill London ECIA 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 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.