"The last but most important element of the tort of libel is the fact of the publication of the alleged defamatory statement in a permanent form. There is no contention to the fact of the exhibit, (exhibit K) being in a permanent form. Having been reduced to a circular as commonly termed by all the parties. The bone of contention appears to be whether the respondent proved the fact that the alleged defamatory statement was published to a third party other than the respondent as demanded by law.
The appellant strongly argue that respondent failed to prove that the defamatory statement was published; that he did not state to whom the defamatory statement was published to, and failing which, the lower Court succumbed to the temptation of fishing for evidence to arrive at the finding of the proof of publication, by placing reliance on the dictionary meaning of the word circular, addressed to a group of persons. It is trite as stated in Guaranty Trust Bank Plc vs. Mr Hussein Fadlallah (2009) LPELR - 8355 (CA), that a defamatory imputation consists of the publication of the alleged defamatory statement to a third person (s) of any words or matter which tend to lower the person defamed in the estimation of right thinking members of the community. To constitute publication, all that is required is the making known of the defamatory matter to some persons other than the person to whom it is written. See also, Ayo Fayose vs. Independent Communications Network & ors (2012) LPELR 9833 (CA), Okafor vs. Ifeanyi (1979) 384 SC 99, Ufua vs. Eborieme (1993) LPELR- 23674 (CA), Nsirim vs. Nsirim (1990) 3 NWLR (pt. 138) 285.
In asserting that appellant published the alleged defamatory words, respondent as plaintiff referred to paragraphs 4, 7 and 10 of the statement of claim, and paragraphs 12, 13 and 13(n) of the amended reply to the amended statement of defense, and argued that the gravamen of the appellant's complaint with regards to this issue relates to the fact that respondent did not publish the names of the persons or clearly identified such persons to which the defamatory words were published to. Relying on the case of KLM Royal Dutch Airline vs. Taher (2014) 3 NWLR (pt. 1393) 137 @ 202, and Isikwenu vs. Iroh (2013) 11 NWLR (pt. 1365) 250 @ 280, which is to the effect that the third party must not only be named but must also be clearly identified, argued that appellant did not by any clear and unequivocal averment admit to the publication of the defamatory statement exhibit K to any 3rd party. The lower Court in the consideration of the issue and at pages 502 to 503 of the record reasoned that:
'It is instructive to note that both the claimant and the defendant have agreed that the offending words are contained in a circular Exhibit K, the question is what is a circular now becomes relevant. According to the Oxford Advanced Learners Dictionary, 7th Edition, a circular is a printed letter, notice of advertisement that is sent to a large number of people at the same time............indeed it is clear from exhibit K, that the circular was directed to all academic staff. This was clearly stated in the circular. The lower Court then concluded that; "There is therefore in my view, no reason for the mentioning of names of persons who have seen and read the circular by the claimant. Suffice that he had called Pw 2 and Pw 3 to give evidence in that regard."
This finding by the lower Court is central to the appellant's complaint, which is that the lower Court made out a case outside the evidence and pleadings of the parties before it. I accept the contention that the law forbids speculation in the adjudicatory process, which is a trite principle of law, and also trite is the principle of law established in Olalomi vs. NIDB Ltd (2007) 16 NWLR (pt. 1167) 266 @ 304, to the effect that a Court of law can make or draw inferences or analytical situations from established facts and situations before it. See Finnih vs. Imade (1992) 1 NWLR (pt. 219) 511, Kwara State Polytechnic Ilorin vs. Shitu (2012) LPELR 9843 (CA). In the case of Dantiye vs. Kanya (2008) LPELR - 4021 (CA) per Okoro JCA, as he then was, where it was held that a judge by the nature of his adjudicatory functions can draw inferences from stated facts in a case, and by such inferences the judge can arrive at conclusions.
It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu, or in the instant case that the judge was fishing for evidence. Coming to the argument on whether the lower Court having labeled the document as a circular, instead of update, the circumstances of the present case to me offers no difference to the issue under contention, after all it is clear from the processes filed including that of the appellant that exhibit K was referred to as a circular. See also the respondents statement of claim, particularly paragraph 4 thereof and paragraph 4 of the defendants amended statement of defence. The contention of the appellant in that regard is not denying that his name is a cock but a male hen. I would rather think that the determinant issue capable of settling the instant problem rests on the premise of whether as decreed in Ayeni vs. Adeshina (supra) the name of the person to whom delivery of the libelous document was made must be pleaded, named and identified, or whether the legal position is as held in the case of Enterprise Bank Ltd vs. Amoa (supra), that it is not in all circumstances that the names of the person to whom the alleged libelous document is delivered to, can be numerically mentioned. In the recent case of Okechukwu vs. UBA Plc (2017) LPELR-43100 (CA) Tur JCA, while referring to the decision of Obaseki JSC in the case of Nsirim vs. Nsirim (1990) 3 NWLR (pt. 138) 285 @ 297, where the erudite jurist stated that:
"By publication is meant the making known of the defamatory matter to some person other than the person to whom it is written. The writing of a libel to the person or party labeled does not constitute publication for the purpose of a civil action. It is the reduction of the libelous matter to writing and its delivery to any person other than the person injuriously affected thereby that is publication. The name of the person to whom delivery of the libelous matter was made, must be pleaded. See also the cases of The Rosicrucian Order (AMORC) Nigeria vs. Henry Awoniyi (1994) 7 -8 SCNJ (pt. II) 390 @ 427. I must also in that regard make reference to the opinion of Ayoola JSC, in the case of Offoboche vs. Ogoja Local Government (2001) 16 NWLR (pt. 739) 459 @ 483, where the erudite jurist had this to say: "the essence of libel is that the libellious material exists in permanent form.
It is essentially continuos in form. It is thus essentially continuos in existence. However publication is a different matter, for what exists in a permanent form is not "published" until it is made known. Every time it is made known to another, publication takes place". The entire scenario to my understanding entails the making known of the defamatory statement to a person identified, who gives evidence to that effect. This Court per Denton West JCA, relying on the cases of Esenowo vs. Ukpong (1990) 6 NWLR (pt. 608) 611 @ 621, a decision of the Supreme Court per Achike JSC, held the view that it is not in all circumstances that the names of the persons to whom the alleged libelious document is delivered to can be numerically mentioned. In the instant case, exhibit K was a circular, containing what the appellant described as an update. It was palpably addressed to the University community. Dr Makanjuola by his written deposition at pages 211 to 214, particularly paragraph 8, stated that: 8. That sometimes in May, 2011 I received a circular purportedly published by ASUU Unilorin, and when I read through the contents and I was shocked to say the least. The said circular was dated 9th of May 2011 and titled "Oloruntoba at it again", and the following words were used therein to describe the claimant thus; ........" Dr Adejumo, PW 2 on his part and by paragraph 10 and 11 of his deposition, averred that: 10. That sometime in May, 2011 I came across a circular dated 9th of May, 2011, titled "Oloruntoba-Oju at it again". 11. that it was to my shock and surprise when I read the words used in describing the claimant thus:..."
The lower Court rightly in my view, sought for the definition of circular in assisting him to see whether the document was indeed published, and thereafter arrived at the conclusion that it was indeed published. I see with the respondent that publication can be proved in different ways, owing to the peculiarity of each given situation, so long as the person to whom the defamatory statement was published to is a different person from the claimant and identifiable. I tend to understand the decisions of Nsirim vs. Nsirim (supra) and Offoboche vs. Ogoja Local Government (supra), both decisions of the Supreme Court in that light."
Per BARKA, J.C.A. ADEOYE v. OJU CITATION: (2018) LPELR-44976(CA)
