BRIEF ON SKYE BANK PLC V. AKINPELU  3 (Pt. I) MJSC 158: PROVING LIBEL
1.0. BRIEF SUMMARY OF FACTS
This is a Supreme Court decision delivered on the 5th of March, 2010. The Respondent as Plaintiff in the Trial High Court had filed this suit against the Appellants as Defendants alleging that the pasting of an Auction Notice over his property did not just amount to a trespass on his property but also to a defamation of his character. He testified on his own behalf and called another witness i.e. Ayodele Akinbiyi who testified that after seeing the Auction Notice which did not have the name of the Respondent but that of one Oshinowo as the debtor and that he subsequently and consequently avoided contact with the Respondent. The auction notice was not pleaded and thus not tendered in evidence. However, the Appellants admitted pasting the auction notice and that they instructed their agent(s) to remove the auction notice. The trial court found that trespass was not proved as the Respondent was not in possession but found defamation i.e libel proved. The Court of Appeal agreed with this decision thus this appeal.
2.0. HOLDING OF THE COURT
The majority of the Court represented by Ogebe JSC held on the issue of libel that: “The law is trite that to succeed in an action of libel the Plaintiff must prove 3 fundamental elements of defamation constructively: (1) That there is the publication of the material complained of by the Defendant; (2) That the publication refers to no other person but the Plaintiff conclusively; (3) That the publication is defamatory of the Plaintiff. See the cases of Sketch v. Ajagbemokeferi (1989) 1 NWLR (Pt. 100) 678; Onu v. Agbese (1985) 1 NWLR (Pt. 4) 704 and Service Press Limited v. Nnamdi Azikiwe 13 WACA 301. Applying the principles to the facts of this case it is not in dispute that the Respondent did not tender the Auction Notice which he claimed was defamatory of him. The fact that the Appellant admitted pasting an Auction Notice is not proof of its contents. It was the duty of the Respondent to prove the content of the defamatory statement and failure to do so was fatal to his claim for libel. In addition to this, PW2 Mr. Ayodele Akinbiyi who was called by the Respondent to testify about the defamatory words stated at page 41 of the printed record as follows: ‘When I saw the Auction Notice I moved near it to see its content, I saw the name of Oshinowo as mortgagor and the 1st Defendant as mortgagee, as well the 2nd Defendant as auctioneer. The Plaintiff’s name did not appear hence my surprise.’ From the Plaintiff’s own showing the offensive publication did not refer to him at all. It could not therefore be defamatory of him.”
3.0. ANALYSING THE HOLDING OF THE COURT
The majority of the court in this holding referred to above raised two major issues:
a) The proof of an alleged defamatory document which the Appellant/Defendant has admitted publishing though the Appellant/Defendant did not necessarily admit that the document was defamatory.
b) Was there reference to the Respondent/Plaintiff?
While the majority of the court thought that even though the Defendant had admitted pasting the auction notice and even removing the auction notice, there was still need to prove the content of the auction notice, the dissenting view of Ogbuagu JSC is to the effect that: ‘With respect, much fuss or heavy weather has been made that the said publication was not produced or tendered in the trial court. Surely, one cannot produce or tender what one does not have. There is the evidence of the 2nd Appellant at pages 41–42 of the Records, that he received Exhibit C. “stating that the house on which the Auction Notice was pasted belonged to the Plaintiff. The name of the Plaintiff was not in the Auction Notice….” This witness swore that the said auction had been removed. He did not say who removed it. The Respondent saw the notice and so did the PW2. But as I had noted in this judgement, the Appellants in paragraph 4 of their Statement of Defence, admitted the pasting of the Auction Notice, but said it was by mistake. I have stated that it is now firmly settled that what is admitted need no further proof. I repeat that the cause of action, arose or was based, on the said pasting of that notice on the wall of the house/property of the Respondent. It is now settled that it is not necessary for a Plaintiff to prove publication where the Defendant has admitted it.’
Though, ‘It is now firmly settled that documentary evidence, is the Best evidence. In fact, the document being the best proof of its contents, no oral evidence, will be allowed to discredit or contradict the said contents except in cases where the fraud is pleaded.’ Per Ogbuagu JSC at page 190 of the Report. The question to be put to the majority of the court, is how can the Respondent tender a document which is obviously with the other party? Section 89 of the Evidence Act 2011 provides that:
Secondary evidence may be given of the existence, condition or contents of a document in the following cases:
(a) when the original is shown or appears to be in the possession or power-
i. of the person against whom the document is sought to be proved, or
ii. of any person legally bound to produce it, and when after the notice mentioned in section 91 such person does not produce it.
The notice referred to above is adumbrated upon in Section 91 of the Evidence Act in this words:
“Secondary evidence of the contents of the documents referred to in section 89(a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is or to legal practitioner employed by such party, such notice to produce it as is prescribed by law: and if no notice to produce is prescribed by law then such notice as the court considers reasonable in the circumstances of the case
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the court thinks fit to dispense with it-
a) when the document to be proved is itself a notice;
b) when, from the nature of the case, the adverse party must know that he will be required to produce it;
c) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
d) when the adverse party or his agent has the original in court: or
e) when the adverse party or his agent has admitted the loss of the document. (Emphasis mine).”
The question to be asked the majority in this case is, can it not be said that from the nature of this case, the adverse party i.e. the Appellants ought to have known that he will be required to produce it? Thus, entitling the Appellants to prove the content of the auction notice via secondary evidence. And did the Respondent prove the content of the auction notice? I think he did via the testimony of PW2 quoted and relied upon by Ogebe JSC at page 175: ‘When I saw the Auction Notice I moved near it to see its content, I saw the name of Oshinowo as mortgagor and the 1st Defendant as mortgagee, as well the 2nd Defendant as auctioneer. The Plaintiff’s name did not appear hence my surprise.’ Shouldn’t this amount to sufficient proof of the contents of the Auction Notice? I think it does.
Now to the second question of: whether there was reference to the Respondent, this writer turns to. It is clear that the Respondent was not referred to by name. It is also clear that the property in question was owned by the Respondent during the material time. Though, “It has also been held that the Respondent was not in exclusive possession of the property where the alleged offensive publication was pasted, so the content of the alleged publication could not have been alluded to the Respondent.” Per Mukhtar JSC at page 183–184.
Ogebe JSC held on how to prove libel that, “The law is trite that to succeed in an action of libel the Plaintiff must prove 3 fundamental elements of defamation constructively: (1) That there is the publication of the material complained of by the Defendant; (2) That the publication refers to no other person but the Plaintiff conclusively; (3) That the publication is defamatory of the Plaintiff.”
The question then is: from the circumstance of this case, can it be said that there was reference to the Respondent?
Order 15 Rule 3(2) of the High Court of Lagos State (Civil Procedure) Rules 2012 provides that: “In an action for libel or slander if the claimant alleges that the words or matter complained of were used in a defamatory sense other than their ordinary meaning, he shall give particulars of the facts and matters on which he relies in support of his allegation.” Fatai-Williams JSC in Dalumo v. The Sketch Publishing Co. Ltd. (1972) 1 All NLR 130 held that: ‘It is not necessary that the word should refer to the plaintiff by name provided that the words could be understood by reasonable people to refer to him, … it is sufficient. As the law stands, the text of whether words that do not specifically name a plaintiff refer to him or not is this: are the words such as, reasonable in the circumstances, would lead persons who knew the plaintiff to believe that he was the person referred to?’
Were the words in the auction notice such as would lead persons who knew the plaintiff to believe that he was the person referred to? For all intents and purposes, I think they were. For example, one Isaac Olu Adeyeri, the person to whom the Respondent wanted to sell the parcel of land upon which the auction notice was pasted wrote a letter which effectively repudiated the contract of sale on the basis of the Auction Notice. Secondly, I think the reasoning of the learned trial judge quoted with approval in the dissenting view of Ogbuagu JSC at page 192 is apposite. The Learned Trial Judge opined thus: ‘On the incontrovertible evidence which I regard as proved, the Defendants caused to be displayed on the Plaintiff’s uncompleted building, an Auction Notice which however does not contain his name. A casual observer, that is, one who does not care to read the whole notice will go away with the impression that he is a debtor. Someone who reads the notice will however go away with the impression that he is not the owner, if he knows him and has been seeing there, his impression is likely to be that he is not the owner and that he is a false claimant or tender. Either way libel has been committed against him.’
This writer holds the view that the learned trial judge applied the right test.
In conclusion, it would seem that the Supreme Court raised the standard of proof in defamation to beyond a reasonable doubt and thus demanded more from the Respondent/Defendant beyond the requirement of the law. Section 134 of the Evidence Act 2011 is clear that: ‘The burden of proof shall be discharged on the balance of probabilities in all civil proceedings.’ Section 167(d) of the Evidence Act 2011 went on to provide that: ‘The court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the court may presume that- evidence which could be and is not produced would if produced, be unfavourable to the person who withholds it’
Oputa JSC in Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 109) 250 at 274 relied on in Jev v. Iyortom  2 MJSC (Pt. II) 1 at 23 per Mohammed JSC observed that: ‘We are final not because we are infallible, rather we are infallible because we are final. Justices of this court are human beings, capable of erring. It will certainly be short-sighted arrogance not to accept this obvious truth. It is also true that this court can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through its mistakes. When therefore it appears to learned Counsel that any decision of this Court has been given per in curiam, such counsel should have the boldness and courage to ask that such decision shall be over-ruled. This Court has the power to overrule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to persevere in error.’ This writer thus hopes that the next time the Supreme Court has an opportunity to consider facts similar to this in respect to defamation that the Court will review the decision in Skye Bank v. Akinpelu and probably come to a different decision.