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SERVICE PRESS LIMITED AND OTHERS
V.
NNAMDI AZIKIWE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
23RD DAY OF NOVEMBER, 1951
2PLR/1951/58 (WACA)
OTHER CITATION(S)
2PLR/1951/58 (WACA)
(1951) XIII WACA PP. 301-303
LEX (1951) – XIII WACA 301-303
BEFORE THEIR LORDSHIPS:
VERITY, C.J., NIGERIA
LEWEY, J.A.
JIBOWU, J.
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BETWEEN:
1. THE SERVICE PRESS LIMITED
2. MOBOLAJI ODUNEWE
3. HAMZAT IDEWU – Defendants-Appellants
AND
NNAMDI AZIKIWE – Plaintiff-Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. CIV.APP.3522.
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REPRESENTATION
F. R. A. Williams with Kayode – for Appellants
J. I. C. Taylor – for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
TORT AND PERSONAL INJURY:- Action for libel – Where name used in libellous publication different from that of Plaintiff – Where no evidence led to prove that the person mentioned in libellous publication was the same as Plaintiff – Assertion by Plaintiff that defence filed admitted by necessary implication that publication referred to Plaintiff rejected – Where defence included a general traverse but no specific traverse – Legal effect
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PRACTICE AND PROCEDURE ISSUE(S)
PLEADINGS – TRAVERSE:- General traverse – When would be deemed sufficient for specific averment – Relevant considerations
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CASE SUMMARY
The appellants were the defendants.
The publication complained of referred to Ben Azikiwe, whereas the name of the respondent-plaintiff was Nnamdi Azikiwe. The respondent failed to call evidence to prove that Ben Azikiwe referred to in the article was the same person as Nnamdi Azikiwe. His Counsel, however, argued that the first appellant had admitted in the defence he filed that the respondent was the man referred to as Ben Azikiwe. The pleadings contained no specific denial that the article referred to the respondent, but paragraph 1 stated that the defendants deny each and every allegation of fact contained in the plaintiff’s particulars of claim as if each had been separately set out and specifically traversed.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
1. Paragraph 1 of the defence was not merely a general denial but purported to deny each and every allegation of fact in the particulars of claim. This paragraph reinforced other paragraphs of the defence that might prove faulty or defective.
2. Taking the defence as a whole it contained no admission that the respondent was the same man as Ben Azikiwe. The respondent had therefore failed to prove that he was the person libelled and his action should have been dismissed.
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MAIN JUDGMENT
The following judgment was delivered:
JIBOWU, J.
This is an appeal from a judgment of Rhodes, J., whereby theappellants were ordered to pay £500 damages to the respondent for an alleged libellous publication contained in the Daily Service of the 9th December, 1948. The words complained of were set out in paragraph 4 of the respondent’s particulars of claim, and they referred to one Ben Azikiwe, which is not the respondent’s name.
The respondent, Nnamdi Azikiwe, did not give evidence at the trial of the action, and though Adolphus Blankson, the only witness called for the respondent, described Azikiwe referred to in the alleged libellous article as the Federal President of the N.C.N.C., he did not say that Azikiwe, the Federal President of the N.C.N.C., was the same person as Nnamdi Azikiwe, the respondent. There was, therefore, no proof that Ben Azikiwe referred to in the article complained about was the same person as Nnamdi Azikiwe, the respondent.
The appellants’ first ground of appeal is that “the learned trial Judge was wrong in giving judgment to the plaintiff when there was no proof of the identity of the said plaintiff with the person alleged to have been defamed”.
Mr. J. I. C. Taylor, Counsel for the respondent, admitted that there was no evidence identifying the respondent with Ben Azikiwe referred to in the alleged libel, and he did not contest the appeal so far as the second and third appellants were concerned, as they specifically denied printing and publishing the alleged libel of the respondent, but he contended that the first appellant admitted in the defence filed that the respondent was the man Ben Azikiwe referred to.
Mr. Fani-Kayode, for the appellants, contended that there was no such admission as alleged in the first appellant’s defence, and submitted that paragraphs 1 and 6 of the defence negatived the suggestion of such an admission.
Mr. J. I. C. Taylor argued that paragraphs 4 and 5 of the respondent’s particulars of claim contained important facts which should have been traversed specifically, and that paragraph 1 of the defence was not sufficient traverse of the facts alleged in paragraphs 4 and 5 of the particulars of claim. It is enough to state that paragraph 4 of the particulars of claim set out the alleged libel and alleged that it was printed and published of the plaintiff, now’ respondent, and that paragraph 5 set out an innuendo alleging that the alleged libel referred to the plaintiff, not respondent.
Order 32, rule 9, of the Supreme Court Rules on pleadings requires that the defendant in an action shall deny all material allegations in the plaintiff’s statement of claim and provides that every allegation of fact, which is not denied specifically or by necessary implication or stated to be not admitted shall be taken as established at the hearing.
Order 32, rule 10, reads:-
“It shall not be sufficient to deny generally the facts alleged by the statement of claim, but the defendant must deal specifically therewith, either admitting or denying the truth of such allegation of fact seriatim, as the truth or falsehood of such is within his knowledge, or (as the case may be) stating that he does not know whether such allegation or allegations is or are true or otherwise.”
In view of the provisions of Order 32, rule 10, I agree with the submission of the learned Counsel for the respondent that paragraphs 4 and 5 of the particulars of claim should have been specifically traversed.
Mr. Fani-Kayode submitted that paragraph 1 and 6 of the defence complied with the rules of pleadings and it is therefore for the Court to examine the defence to find out whether it has sufficiently traversed the allegations made in paragraph 4 and 5 of the particulars of claim.
Paragraph 4 of the defence admitted that the first defendant, now first appellant, printed and published the words quoted in paragraph 4 of the particulars of claim, but denied that the said words were published falsely and maliciously. It, however, omitted to say whether the words were published of the respondent, and it appears to me for that reason to be evasive. All the arguments now addressed to this Court and those addressed to the Court below would have been saved if the words “of the plaintiff ” had been added to paragraph 4 of the defence.
Paragraph 6 of the defence denied the innuendo alleged in paragraph 5 of the particulars of claim, and thereby denied that the respondent was the person referred to as Ben Azikiwe.
Paragraph 8 of the defence stated that the words complained of by the plaintiff, in so far as they consisted of statements of facts, were true in substance and in fact, and that in so far as they consisted of comments, were fair comments made in good faith and without malice on a matter of public interest.
By this paragraph the alleged libel was justified and the defence of privilege raised. The expression “the words complained of by the plaintiff”, in my view, means nothing more than the alleged libellous matter, and does not go so far as to say that the words were true of the plaintiff, now respondent.
The words complained of referred to Ben Azikiwe and paragraph 8 of the defence, in my opinion, implies that the words were true about Ben Azikiwe
With respect to the learned trial Judge, I do not share the view that the paragraph is an admission that the man referred to in the alleged libel was the respondent.
I now come to paragraph 1 of the defence which reads:-
“Save as is herein expressly admitted, the defendants deny each and every allegation of fact contained in the plaintiff’s particulars of claim as if each has been separately “set out and specifically traversed.”
This form of pleading is common and is used in precedents of defence Nos. 39(a), 39(b} and 40 in the third edition of Gatley on Libel and Slander, which is one of the standard works on the subject. It is clear from the Record of Appeal that the learned Counsel for the respondent did not, at the time of trial, consider that anything was wrong with the paragraph and there was no attempt made to get it struck out. From the language employed in the paragraph one cannot hold that the paragraph contains a general denial of the allegations, contained in the particulars of claim as it purports to deny each and every allegation of fact in the particulars of claim as if each has been separately set out and speci1ically traversed.
The paragraph gave definite notice to the respondent that no allegations in his particulars of claim which were not speci1ically admitted, were admitted. It appears to me that the paragraph reinforces other paragraphs of the defence that might prove faulty or defective.
Taking the defence as a whole, I am unable to see that it contains any admission that the respondent was the man Ben Azikiwe referred to in the alleged libel, and the submission of the learned Counsel for the respondent on the point must, therefore, be rejected. The onus of proving that the respondent was the man Ben Azikiwe referred to in the alleged libel rested on -the respondent, and that onus he failed to discharge. His action should therefore have been dismissed.
In my opinion, the appeal should be allowed on the first ground, which makes it unnecessary for the Court to deal with the submissions made on the other grounds.
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VERITY, C.J.
I concur.
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LEWEY, J.A.
I concur.
Appeal allowed.
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