DR. HARRY ORANEZI V. DR. CHRIS NWABUEZE NGIGE & ANOR (2013)

Background

Dr. Chris Nwabueze Ngige, then Executive Governor of Anambra State, commenced an action for libel at the High Court of Kaduna State against Dr. Harry Oranezi and Punch Nigeria Ltd. The claim arose from a newspaper story published on 12 January 2005 under the headline “They want to kill me, Lawmaker Petitions Obasanjo.” Ngige contended that the publication falsely portrayed him as a murderer who enjoyed killing political opponents. He alleged that the article damaged his reputation, caused him embarrassment and injured his standing as a public officer and professional.

Ngige sought three billion naira in damages, a retraction, a full and unqualified public apology, injunctive relief against further defamatory publications and costs. Although Oranezi was served with the originating processes, he did not file a statement of defence. Instead, he filed preliminary objections challenging the jurisdiction of the trial court. Those objections were dismissed. He subsequently stopped participating in the proceedings, despite hearing notices. Punch Nigeria Ltd was later struck out of the action after Ngige withdrew the claim against it. The trial proceeded against Oranezi in his absence. The High Court awarded Ngige twenty million naira in damages and ordered a retraction, an apology and an injunction.

Issues

1. Whether the High Court was right to hold Oranezi liable for libel and to award damages.
2. Whether the trial court violated Oranezi’s constitutional right to fair hearing by hearing Ngige’s written address before Oranezi’s time for filing his own address had expired.
3. Whether the High Court of Kaduna State had jurisdiction when the parties were not resident in Kaduna State and did not carry on business there.

The Court of Appeal also considered whether certain arguments concerning earlier interlocutory rulings could properly be raised in an appeal against the final judgment.

Ratio Decidendi

The Court of Appeal held that a notice of appeal is the foundation and “spinal cord” of an appeal. It defines the decision being challenged and binds the parties. An appellate court may only review the judgment or ruling identified in the notice of appeal and cannot use an appeal against a final judgment to reopen earlier decisions against which no appeal was filed. The issues concerning section 308 of the Constitution, the striking out of Punch Nigeria Ltd and the non-service of processes had been determined in earlier rulings. Since those rulings were not separately appealed, the related grounds and issues were incompetent and were struck out.

On libel, the court reaffirmed that the claimant must establish that the publication was written, false, communicated to a third party, referred to the claimant and was defamatory, and was made by the defendant. Libel is actionable per se: once an unjustified defamatory publication is proved, damage to reputation is presumed and the claimant need not prove specific financial loss or other actual damage. The court further held that a defendant who fails to file a defence leaves the material averments in the statement of claim unchallenged and, subject to obvious exceptions, those averments are deemed admitted. A defendant who rests his case on that of the claimant is likewise treated as accepting the case made out by the claimant.

The defence of qualified privilege was unavailable to Oranezi because it had neither been pleaded nor supported by evidence at trial. A privilege defence cannot be raised for the first time in an appellate brief merely by argument.

Court Findings

The trial court had found that the publication was in writing, false, defamatory, referred to Ngige and was published in newspapers with nationwide circulation. The Court of Appeal observed that Oranezi did not appeal against the specific findings concerning the first four ingredients of libel. Those findings therefore remained binding and unassailable. His failure to file a defence and his failure to cross-examine Ngige’s witnesses meant that the evidence supporting publication and authorship was unchallenged. The court consequently upheld the finding that Oranezi caused the publication.

The complaint concerning damages also failed. The appellate court will not interfere with an award unless the trial court acted on a wrong legal principle or the amount is so excessive or inadequate as to constitute an erroneous estimate. Oranezi challenged the entitlement to damages rather than the amount of twenty million naira itself. Since libel is actionable per se and no proper challenge was made to the quantum, there was no basis for interference.

On fair hearing, the court recognised that fair hearing is both a common-law and constitutional right under section 36 of the 1999 Constitution. However, the right requires that a party be given a genuine opportunity to be heard; it does not require the court to compel a party to use that opportunity. Oranezi and his counsel had notice of the proceedings, attended to interlocutory applications and had more than the twenty-one days prescribed by the rules to file a written address. They did not attend when the address was adopted and did not file an address before judgment. The court therefore held that the complaint of denial of fair hearing was unfounded.

Finally, the court held that Kaduna State had jurisdiction because there was unchallenged evidence that the newspapers containing the defamatory publication were circulated, sold and read in Kaduna. In a libel action, publication is an essential part of the cause of action. The place where the defamatory material was published may therefore provide the territorial venue for the action. The objection was, at most, one of convenience of forum rather than want of jurisdiction.

Conclusion

The appeal was dismissed. The judgment of the High Court of Kaduna State in suit No. KDH/KAD/446/2005, delivered on 27 March 2009, was affirmed. The orders for twenty million naira damages, retraction, public apology and injunction remained in force. Ngige was awarded fifty thousand naira costs of the appeal.

Significance

The decision illustrates the consequences of non-participation in civil proceedings. A party who deliberately declines to plead, attend trial, cross-examine witnesses or file a final address cannot ordinarily complain that the court proceeded without hearing him. It also reinforces disciplined appellate practice: grounds and issues must relate to the decision appealed against, and an unchallenged interlocutory ruling cannot ordinarily be attacked indirectly in an appeal from a later judgment. In defamation litigation, the case confirms the importance of pleading all available defences, including qualified privilege, and confirms that publication in a particular State can confer territorial jurisdiction on that State’s High Court.