IN THE HIGH COURT OF JUSTICE OF PLATEAU STATE OF NIGERIA
IN THE JUDICIAL DIVISION
HOLDEN AT JOS
THIS 3RD DAY OF MAY, 2018
BEFORE HIS LORDSHIP: HON, JUSTICE C.L. DABUP……………JUDGE
SUIT NO: PLD/J166/14
BETWEEN:
BCC TROPICAL LTD…………………………….PLAINTIFF
AND
THE NEWSGATE COMMUNICATIONS
CHIEF AMB. NANYAH ANDREW DAMAN………….DEFENDANT

JUDGMENT:
This action was commenced by the Plaintiff who filed a writ of summons together with his statement of claim on 26-0302014 against both defendants. By an amended pleading dated 18-06-2014 but deemed filed on 23-06-2014 vide order of court; the plaintiff claims the following reliefs.
A DECLARATION that the defendants publication in the NEWSGATE Magazine, Volume 14 No. 122 of 1st to 5th March, 2014 at page 16 under the caption “Contractor Swindles PLSG on Stadium Contract”………. “Constructs 15,000 Seats Instead of 45,000”, a magazine which circulates in Jos Plateau State and throughout Nigeria containing the following materials and statement against the plaintiff is defamatory and libelous of the plaintiff.
AN ORDER for the publication of an apology, retraction and rebuttal of the libelous materials in the defendants, THE NEWSGATE publication widely read magazine and another National daily for 5 (five) consecutive days.
DAMAGES  in the sum of N1,000,000,000.00 (One Billion Naira) Only for libel for the malicious and false defamatory materials published by the defendants in their publication in the NEWSGATE Magazine, Volume 14 No. 122 of 1st to 5th March, 2014 captioned; “Contractor swindles PLSG on stadium Contract”, at page 16 of the same publication under the same heading above maliciously published as follows:- “Constructs 15,000 Seats instead of 45,000”, which was widely and extensively distributed and sold all over Nigeria and more particularly within the jurisdiction of this Hon. Court.
AN ORDER OF PERPETUAL INJUNCTION restraining the defendants or their cronies, group of people, association or anyone however so called through THE NEWSGATE Magazine or any other newspaper/magazine or other publication(s) owned by the defendants or others from further publishing or disseminating the libelous materials or similar ones against the plaintiff forthwith.
The cost of this action.
Issues were joined  by the parties and two witnesses testified for each side with the plaintiff tendering eleven exhibits, Exhibits ‘P1’ – ‘P11’ while the defendant tendered two, Exhibits ‘D1’ and ‘D2’.
The documents admitted in evidence are;
Bundle of document known as Award of contract by Plateau State government dated 7-12-2010 is to be marked Exhibit ‘P1’.
Newsgate Magazine of 1st – 15th March, 2014 is to be marked Exhibit ‘P2’
BCC Tropical Limited Certificate of Incorporation to be marked Exhibit ‘P3’.
Plaintiffs letter of demand dated 13-10-2009 is to be market  Exhibit ‘P4’
Plaintiff letter addressed to Plateau State government dated 13-10-2009 is to be marked Exhibit ‘P5’.
Letter of intent and consultancy Agreement is to be marked Exhibit ‘P6’.
Letter of Acceptance dated 7-12-2010 is Exhibit ‘P7’.
Contractors Registration documents in respect of Federal ministry of Defence. Works and water resources and that of  Benue state to be marked as exhibits ‘P8A’ ‘B’ ‘C’ and ‘D’ respectively.
C.T.C. of particulars of director is to be marked Exhibit ‘P9’.
The Newsgate Magazine of 15-4-2014 to be marked Exhibit ‘P10’.
Plateau State of Nigeria Tenders Board Certificate of Works Registrations Exhibits ‘P11’.
Country Watch Magazine Exhibit ‘D1’.
Fountain Magazine Exhibit ‘D2’.
Below is a summary of the evidence adduced by the parties.
The plaintiff opened its case by calling two witnesses PW1 and PW2 and tendered eleven documents as Exhibit ‘P1’ – ‘P11’. While the defendants called two witnesses DW1 and DW2.
PW1 Mr. Plamen lliev adopted his witness statement on oath wherein he testified that he is the managing Director  of the plaintiff.
That the plaintiff is a private company limited by shares, engaged in the business of civil engineering construction.
He stated that the company is the sole contractor and firm handing the completion of the Plateau State Government owned New Zaria Road Stadium complex, Jos.
That the 1st Defendant is a private limited company, with head office in Jos and is the  publisher of the NEWSGATE magazine, and engaged in the business of news publication within and outside Plateau State, the defendant has wide circulation across every state in the federation of Nigeria and through its website www.newsgate.com, available all over the globe. The 2nd defendant is the publisher and group managing editor of the 1st defendant and responsible for all publications and activities of the 1st defendant and its reporters and staff.
He further stated that the plaintiff is currently undertaking the completion of the abandoned main bowl of the stadium and construction of additional sporting facilities with several pavilion, and arena all within the complex known  and called The Jos New Zaria Road Stadium Complex. That the contract for the completion of the abandoned Zaria Road Stadium was awarded to the plaintiff by the plateau state Government (PLSG) in the year 2010.
He stated that the initial design of the seating capacity of the stadium was 27,000 to 28,000 (not the 15,000 published by the defendants) and plaintiff merely proposed to the client to increase same to 32,000 (not to the 45,000 published by the defendants) and to effect changes in the roofing structure.
He further stated that the entire  spectator capacity of the stadium complex upon completion is a targeted 44,000 which is inclusive of the various sporting facilities which are part and parcel of the complex. That the defendants in their publication in  the NEWSGATE magazine, volume 14 No. 122 of 1st to 5th March, 2014 on the front page wrote. “Contractor swindles PLSG on stadium contract”. And at page 16 of the same publication under the same heading above maliciously published as follows:- “Constructs 15,000 seats instead of 45,000”. That the defendants at paragraph 2 of the page 16 of the publication wrote. “The NEWSGATE magazine investigation revealed that the State Government and its representatives in the Ministries of Urban Development and sports signed a contract for a 45,000 seater stadium but the contractor made arrangements for only 15,000 seats in a bid to defraud the state government”.
That in the same publication, the defendants went further to public at paragraphs 3 and 7 that the contractor handling the Zaria Road stadium project might defraud the people of the state and indeed Nigerian to the tune of 30,000 unconstructed seats”. And “the contractor doles out money to whoever raises an eyebrow over the project hence the reluctance of this reporter to approach him for comments”.
He further stated that not only were these publications manifestly false and made without references to it as clearly stated in the words of the defendant, the clients were also not contracted for their comments in the true ethic of the profession of journalism before rushing to the press and by these comments and publication of the defendant, plaintiff was caused so much damages from the date the magazine hit the stands, with not only the associates and other clients of the plaintiff in various parts of Nigeria calling to confirm what was happening, but also the client questioning the innuendoes contained in the publication as it concerns the integrity and standing of the plaintiff.
He added that by the said publication the estimation of the plaintiff and its integrity was lowered before right-thinking members of the public and has caused it to be shunned and avoided. That it has also exposed the plaintiff to hatred, contempt or ridicule, and conveyed the imputation on it, disparaging or injurious to it in its, line of business, trade, calling and business community within and outside Nigeria. That the plaintiff has been in business for over 20 years and has constructed several projects in various parts of Nigeria and it has an enviable board of directors with partners and associates all over the world, most of whom have heard and/or read about the publication and have adopted an attribute of extra due diligence in dealings with the plaintiff. That plaintiff wrote to the defendants on the 10th of March, 2014 to redress the damages, but same was ignored by the defendants.
Under cross examination PW1 told the court that the contract document had no mention of number of seats which came to the fore in 2009.
That on additional 5,000 – 7,000 seats are to be constructed even though he did not know the number of existing seats.
Looking at Exhibit ‘P3’ ‘PW1 confirmed that the company name changing to ‘BCC Tropical Limited. Though he admitted that the company name is not stated on Exhibit ‘P2’, he maintaining that there is only one stadium along Zaria Road. PW1 stated that the stadium construction began in 1988 with the original contractors as Transproject Nigeria Ltd and Archi organic partnership as consultant.
Witness confirmed that he had never built a stadium but that BCC Tropical Ltd was appointed to do integrity test of the structure in 2010 and assess the stage of work with a view to upgrade the design and add seats.
PW1 said he granted audience to government officials and press in respect of the work being done.
He said that the entire number of seats at completion will be about 44,000- 45,000.
PW2 engr. Sunday Kwaja adopted his witness statement on oath and testified that he is a civil engineer with over 25 years working and practice experience.
That he knows the plaintiff and has professionally associated with it and its key staff for over twenty years. He said that the plaintiff is a civil engineering construction company of repute and he is privileged to know the plaintiff. That he was part of the construction of the stadium from inception and he is right now involved in the plaintiff’s contract for the completion of the abandoned New Zaria Road Stadium, a project of the government of Plateau State as the Chief engineer of the consultants. He testified that the Plaintiff is the sole contractor of the project and by the contract documents which he has seen severally by virtue of his function that same is conspicuously written on the project Billboard by the entrance to the project site.
Witness said he saw and read the publication of the NEWSGATE magazine volume 14 No. 122 of 1st to 5th March, 2014 and upon reading the article, had no doubt in his mind that same referred to the plaintiff.
He testified that he was surprised by the name calling and allegation of fraud leveled against the plaintiff in the magazine.
He further testified that he was surprised that the sitting capacity of the stadium was alleged to be 45,000 seats though not expressly stipulated in the contract agreement between plaintiff and the client, the Government of plateau State. That the capacity being envisaged upon competition is between 30,000 and 32,000 seats, when the stands and seats of the other sporting activities within the complex are considered, only then can a number of about 45,000 be achieved. That he also read the second publication of the defendant of 15th of April, 2004 and had no doubt as to reference to the plaintiff.
He further stated that at the commencement of the project in 1988, the original design was to have the concrete precast stabs as the seats without introduction of additional installed seats made of either plastic or graphite and the actual capacity was provisional but the project was between 26,000 and 28,000 seating capacity. That as a consultant to the project, quality works of Integrity are ongoing and the plaintiff is competent with adequate and qualified manpower on site and working. That at all times materials to the commencement of works at Zaria Road stadium the sole contractor has remained the plaintiff herein and this fact is known to all, even as the project billboard mounted by the gate of the stadium since 2011 clearly bears the facts of the status of the plaintiff vis-à-vis the Jos Zaria Road stadium project.
When he was cross examined PW2 confirmed that he came to court on subpoena. He said that the stadium construction started in 1988 with Transproject a Limited liability company. As a civil servant and the Plateau State structural engineer then, witness said he supervised the job. That he knew PW1 as one of those charged with the job but later he was given the contract. He said that as consultant he was satisfied with the plaintiff’s job. Having been confronted with Exhibit ‘P2’ at pg. 15 which witness read, he said he knew the plaintiff was doing an excellent job, so he did not believe the story.
In respect of the defendants DW1 Chief Amb. Nanyah Andrew Daman testified as DW1 adopting his witness statement on oath. He stated that the 1st defendant is not the publisher of the NEWSGATE Magazine. That he and the 1st defendant are not and cannot by any stretch of imagination or contemplation bear any form of liability for any publication made in or carried by the NEWSGATE Magazine. That they do not have any such website as alleged or any functional website at all. That he is neither the publisher nor Group Management Editor of the 1st Defendant, as it neither has a publisher nor Group Managing Editor.
He further stated that the contract awarded by the Plateau State Government for the completion of the Zaria Road Stadium, Jos was for the construction of 45,000 spectators seating capacity stadium and this fact had been variously stated by Government and private media, Plateau State Government officials and its representatives and other sources connected to the Plateau State government. That both the Plateau State Government (the client) and Mr. Plamen lliev have variously maintained that the agreed seating capacity of the stadium was 45,000 and between 42,000-45,000 respectively. That beyond the all important issue of seating capacity of 45,000 which the general public has been made to believe to be the seating capacity on the main bowl, the stadium has been  published by the contracting parties and their representatives, and privies to be a Federation of international Football Association (FIFA) standard approved stadium which is not only going to be superior to the National Stadium in Abuja, but one of the best in the African sub-region and comparable to any other in the world.
DW1 stated that the publication was made in the following the Country Watch, a publication of Broadway communication; Jos Vol 1. No. 1, March/April Edition, particularly Article by Chris Gyang, personal Assistant to the Plateau State Governor (pg.11-14)which was published earlier than the publication in issue so the Nigerian tribunal of 10th April, 2012 article by Isaac shobayo. FOUNTAIN, Vol,1 no.5 june, 2012. A publication of the directorate of the press and public affairs, Governor’s office, Jos, plateau state.
DW1 said the publication in the NEWSGATE Magazine volume 14 No. 122 of 1st – 5th March, 2014 was neither published by him nor the 1st defendant.
He further told the court that the said publication in the issue of the NEWSGATE Magazine of the complained statement was not made with reference to the plaintiff, that it was not made maliciously or with intent to disparage the contractor or any person, but a fair, just and honest publication made in good faith of the outcome of the resources information gathered by the publisher on the facts pertaining to the way and manner in which the construction of the Zaria Road stadium was being carried out by the contractor. That the publication was and constituted the publisher’s comment on the work being carried out on the Plateau State Government owned Zaria Road Stadium which is a matter which the public had legitimate interest and deserved to know whether same was being done as specified or as the government had always published or declared to the public without hesitation, agitation, denial or even correction by the contractor. That the Plateau State Government, (the client) the Governor, government officials as well as sources connected to the client had on several occasions publicly declared or published to the knowledge of the contractor that the seating capacity of the stadium was 45,000 without any specific denial, rejection or correction of the said fact by the contractor. That the words consist of allegations of facts, which are true in substance and in fact and also consist of expression of opinion which are fair comments made in good faith and without Malice upon acts which are matters of public interest.
He further testified that he witnessed when some phone calls were put through to the Hon. Commissioner of Urban Development, Engr. Solomon Maren at 10:13 am and 10:14am on February; 6th 2014 to verify the position of the client on the matter. That the phone calls were put to the commissioner through his mobile phone No. 08094431228 and he neither received the calls that actually went through nor returned the calls, to date.
He testified that the Plaintiff is not the subject of the publication and no reasonable person reading same will understand it to refer to the plaintiff. That the publication was not made maliciously, but an honest press comment on public matter in which the public had a legitimate interest. That he was served with a letter dated 10th March, 2014 authorized by the plaintiff’s, counsel addressed to him and “The publisher, the NEWSGATE MAGAZINE.
DW2 Nannim Hydro Jangtur adopted his statement in which he testified that he is a builder and the principal administrative officer in the Building Department of Ministry of Housing and Urban Development Jos, Plateau State. That the Plateau State Government had awarded the contract of expanding and completing the construction of the Zaria Road Stadium sometime between the year 2010 and 2011 to the plaintiff.
He stated that he was part of the Plateau State Technical Team/project supervisors from the  Ministry of Housing and Urban Development deployed to carryout assignment in respect of the completion of the construction of the Zaria Road Stadium by the Plaintiff, BCC Tropical Nig. Ltd That he was the project Builder to Government/Clients of the aforementioned team, as at June, 2011 DW2 testified that as a builder, he knows that building projects are carried out in two major stages, viz the design and the execution. That in the design stage, the architect carries out the design while the quantity surveyor or guiders in terms of the cost implication of the project. He stated that in the execution stage, it is the duty of the builder to implement the project physically as contained in the design and he is saddled with the responsibility of guaranteeing quality of the work. That a contract can be awarded to one as a consultant only, Contractor only, and or both consultant and contractor. He added that when a contract is awarded to someone as a consultant only, it means such a person will provide special skills required for the work from inception to conclusion of the project. While as a contractor only,  such a person will be requires to provide Goods and services needed to bring the work of the consultation to reality.
Witness said when one is both consultant and contractor, it will require the performance of both functions stated above. He further testified that when the project took off, there was no one appointed as consultant and the plaintiff had posed merely as a contractor only but the supervising team had to require of the plaintiff the services of the consultant because the plaintiff already had the client’s brief, (i.e. the task or instruction to expand the capacity of the stadium from 27,000 to 45,000 seaters and roofing. That the plaintiff breached up to the task and charged the  client for the consultancy services, for which it was paid accordingly. That the type of contract awarded to the plaintiff in this suit was Design and build. That means the plaintiff was to prepare the drawings, produce the bill of Quantity and other relevant quality Management documents for reference by the client including health and safety management,  program of work, methodology and early warning system, that where no quality documents as above, it means there would be no determination of the quality of the contract. DW2 stated that the plaintiff did not have any of these documents available. He state that absence of program of work entailed that no period of completion was stipulated because the period ought to be stipulated in the said documents.         
Furthermore DW2 testified that the stadium’s original structure was first laid/built sometime in 1988 with a total seating capacity of twenty seven (27,000). That the original seating capacity of the stadium as at the time the contract was awarded to the plaintiff  was the same twenty seven thousand (27,000). That the contract was awarded to the plaintiff, from the outset at the rate of three Billion and Eighty Thousand Naira  only (N3,000,080,000.00) only.
That the Government/client brief to the plaintiff required the addition of Eighteen Thousand (18,000) seating capacity to the initial twenty seven thousand (27,000), bringing the total seating capacity to 45,000 which in additional the Managing Director of the plaintiff confirmed to the client that it would work to achieve. That be contract sum has steadily moved upward from three Million and eighty thousand Naira (N3,000,080,000.00) only to Eleven Billion Naira only (11,000,000,000.00). that there had been some variation of the contract sum, but does not know the number of times it had been so varied.
He stated that he know that the maximum variation allowed by the relevant building and construction financial regulation is 30% of the original contract sum. In need for variation occurs when a pieces of work needs to be preparation of  Bills of quantity to be priced by the contractor and that no proposal for a variation situation was referred to them as the government physical team for scrutiny and approval before the addition of the contract sum of (11,000,000,000,00) in excess of the 30% approval limit.
That as a builder he knows that the additional 18,000 seating capacity entailed architectural designs, expanding the built stadium by 66-67% aside the design of the stadium. Witness said that the plaintiff neither increased occupied by the built stadium nor increased its volume by an inch. He stated that it is impossible to load a structure standing with its bearing additional 18,000 seaters load without expanding it. That professionally, can be able to accommodate the percentage increase on the existing design by simple tinkering with the design as built. That a certain consultant named “Akioganik” was later appointed by the client, midway into the contract execution when the plaintiff already had an obligation to serve both as contractor and consultant.
That the appointment consultant did nothing different from the task already being performed by the plateau state technical team/project supervisor from the ministry of housing and urban development. That the plaintiff has so far been paid it contract fee to the tune of about 10,000,000,000,00 (ten billion Naira), only. That to date the plaintiff has not delivered the contract awarded and there are so much more work to be done on site.
During cross examination  DW2 stated that he is a builder holding a B.sc degree in building and he is a staff of the ministry of education but formerly of the minister of housing and urban development. That he was part of the technical project team supervising of the project led by Architect Sam Jatau, but he has creased to be a member having left the ministry.
He explained that he is not satisfied with the work of the plaintiff and he complained severally to his former minister. That he stands by all that contained in his witness statement on oath particularly with regard to paragraphs 20,29,31and 33 to which his attention was drawn. He said that gravity of the work is the root which is not in place. He confirmed being present at the meeting he made reference to in paragraph  20 of his statement on oath.
Upon the close of evidence the court directed parties to file and exchange written addresses. Before the date of adoption of the addresses, learned counsel behalf of the  plaintiff sought and obtained the level of this court to further  amend the writ of summons and pleadings to reflect the name of the plaintiff as BCC Tropical Limited.
On  the  09-02-2018 written addresses were adopted by counsel on behalf of the parties.
For the defendants a joint reply address was also filed and adopted.
The defence counsel formulated for issues for determination viz:
Whether this suit as constituted is not incompetent, considering the fact that the writ of summons was issued by Messrs Okey Akobundu & Co.
Whether the plaintiff has proved that it has been defamed by the publication  in exhibit ‘P2’.
Whether the defence of fair comment is not available to the defendants.
Whether the plaintiff has shown its entitilement to the sum of 1 billion claimed against the defendants.
Similarly the plaintiff also canvassed argument on four issues being:
Whether or not the action of the plaintiff is incompetent.
Whether or not the publication of the defendants in exhibits ‘P2’and ‘P10’are defamatory of the plaintiff.
Whether or not the said publication is malicious and false and calculated to blemish the person and character of the plaintiff.
Whether or not the plaintiff is entitled to damages for defamation and character assassination of the person and the character of the plaintiff.
I have carefully perused the two set of issue formulated by the counsel representing the parties, four each making a total of Eight. I am of the opinion however that issue 1 of the defendant and issue 1 of the plaintiff are identical and will be taken as one.
The 2nd issue of the respective parties will be taken together, the 3rd issue of the defendant, then issue 4 is the 3rd issue of plaintiff while the 4th issue of the parties will be taken together as issue Five.
The court will therefore consider five issue in all.
ISSUE ONE
This issue as to whether this suit as constituted is not incompetent considering the fact that the writ of summons was issued by Messrs okey Akpbundu & Co, learned counsel to the defendants submitted the Order 5, Rule 1 of the Plateau State High Court Rules 1987 is very clear on who is empowered to issue a writ of summons.
The law provides as follows:
“A writ of summon shall be issued by a judge, or an officer of the court empowered to issue summons, on application”. He submitted that the writ in suit which represents form 1 in the Appendix to these rules was not competed and issued by counsel or a legal practitioner but by a law firm; Messrs, Okey Akobundu & Co that of pages 5 of the writ reads thus:
“This writ was issued by Messrs Okey Akobundu & Co.
He submit that by form 1, the writ should have been issued and signed by a named legal practitioner whose name is on the roll, and not a law firm. That the law is long settled that originating processes of course signed by a law firm instead of a legal practitioner are a nullity he relied on the case of HAMZAT VS. SANNI (2015) NWLR (pt. 1453) p. 486 at 499.
He further submitted that the above cited case, the processes of court were issued  or signed by a law firm. The court held that not being a legal practitioner whose name is on the roll of legal practitioners in Nigeria kept at the Supreme Court, the process is incompetent. Similarly, the originating process in this case was issued by the law firm of Messrs Okey Akobundu & Co not a legal practitioner. Counsel further submits that the condition of the writ in the above cited Case was even more worthy of sympathetic consideration compared to the condition of the writ in this suit, reason being that while the writ in that case was signed by a law firm stead of a legal practitioner, the writ in this suit only contains the name of the law firm as the plaintiff’s counsel simpliciter, with no signature.
He concluded that issued of the writ by or at instance of a law firm, Messrs Okey Akobundu & Co, renders the writ a nullity and ought to be dismissed and urged the court to so hold.
In reply to the argument of the defence counsel regarding the competence of the action by the writ of the plaintiff, the plaintiff’s counsel contends that by virtue of Orders 5 Rule 1 of the extant rule of this court, the court and not counsel is authorized to issue writs. He added that the writ was endorsed by counsel on 26th March, 2014 at pages 5 while the court issued the writ on 3th April, 2014. The Plaintiffs counsel submitted that the case of HAMZAT VS. SANNI (supra) cited by the defendant counsels inapplicable to his suit.
In the defendants joint reply address it was further argued that the alleged endorsement by counsel at page 5 of the writ of summons is at large as the  capacity in which it was signed is not disclosed and neither the party being represented. The court was referred to the case of YAKUBU VS. F.M.B.N LTD (2015) 11 NWLR (pt. 140) 232 at 242 paragraphs F-N.
The defence counsel contends that failure of the plaintiff’s counsel indicate the capacity in which he signed the writ of summons or whom he represents as required by the decision of the Supreme Court in SLB CONSORTIUM LRD VS. NNOC (Supra) renders the writ of summons incurably bad and liable to be struck out.                   
The writ of summons issued in this case has put under the stay in view of the arguments of the learned counsel in this case.
I now turn attention to the originating process in this suit for examination and scrutiny.
At page 5 of the process the following appears;
This writ was issued by Messrs OKEY AKOBUNDU & Co, legal practitioners whose address for services is No. 4b Barracks Road, Off Ahmadu Bello Way, Jos. Plateau State solicitors to the plaintiff .
Endorsement to be made on the writ forthwith after service.
Endorsed on the 24th day of 26th March, 2014.
Signed:
Okey Akobundu, (FCI Arb) UK
Okwudiri Nwosu, Esq.,
Thunnaya Oranye, (MCI arb) UK
As a signature above the dotted lines above the list of names.
A close look at the document shows the names of five counsel listed below the signature, but it is not clearly indicated who signed and  there is no indication below it as to who counsel represents.
The case of YAKUBU VS. F.M.B.N. Ltd (Supra) followed the decision of the Supreme Court in SLB CONSORTIUM LTD VS. NNPC (Supra) per Rhodes Vivor, JSC who held that “… once it cannot be said who signed a process it is incurably bad. He went on to give the following guidelines on how processes filed in court ought to be signed.
The signature of counsel, which may be any contraption.
The name of counsel clearly written.
Who counsel represents;
Name and address of legal firm”.
While it is conceded to the plaintiff that the writ of summons bears a signature, it is however unascertainable whose signature. It is but more particularly who counsel represents.
Order 5 rule 1 of the extant Rules of this court make provision for what to be contained in a writ to be issued in accordance with form 1 in the Appendix to these rules Paragraph 4.0.3. of the defendants written address has pot this requirement, succulently.
In this vein, the submission of the defence counsel inclusive the authorities relied upon is upheld to the extent that the Writ in this suit is not signed by a named legal practitioner, but issued by a law firm of Messrs OKEY AKOBUNDU & CO, as shown on line 1 of page 5 of the plaintiff’s writ of summons. Having upheld the submission of the defendants in respect of issue 1, the writ is consequently vitiated and same is declared to be a nullity put another way the originating process (writ) initiating this suit is found to be incompetent thus the court lacks the jurisdiction to adjudicate on it.
Assuming though not conceding that I have come to the wrong conclusion in issue one above. I shall proceed to consider the other issues.
ISSUE TWO:
Whether the plaintiff has proved that it has been defamed by the publication in Exhibit ‘P2’.
In regard to this issue learned counsel for the defendants referred the court to the case of NZERIBE VS. ANYIM (2009) ALL FWLR (pt 488) 378 at 395 where the court stated what a plaintiff must prove to succeed in an action for defamation as follows:
“In an action for defamation, the plaintiff must prove the following six coterminous ingredients”.
Publication of the offending words.
That the words refer to the plaintiff.
That the words were defamatory of the plaintiff
Publication of the word to parties.
Falsity of the words; and
That there is no legal justification for the publication of the words complained of……………….”.
It is the contention of the defence counsel that the plaintiff has not proved any of these six ingredients defamations as required by law.
In respect of item a. whether there was publication of the offending words, the defence counsel submitted that “publication” goes beyond mere writing or printing of the statement complained of counsel invited the attention of the court to page 16 of exhibit ‘P2’ and submitted that the name of the plaintiff is not mentioned, slated or quoted there in that the plaintiff’s name on record is BCC Tropical Limited and that name is not stated anywhere in the publication.
That the plaintiff has resorted to the technical and of innuendo to connect the plaintiff to the publication, the court was referred to paragraph 11 of the amended statement of claim.
Continuing his submission counsel said that it is the law that the identity of the person claiming to have been defamed must be easily ascertainable that looking at the statement in issue, it is not easily ascertainable that it refers to the plaintiff.
That the plaintiff failed to heed the admonition in the case of DAILY TIMES VS EMZUOM (supra) to call evidence in proof that it is the one referred to in publication complained of.
The defense counsel argued further that by reason of special and technical relationship inherent between plaintiff and PW1 and PW2, both witnesses are not qualified as reasonable person’s to prove that publication refers to the plaintiff.
On the complained statement -------------the contractor doles out money to whoever raises an eyebrow over the project hence the reluctance of the reporter to approach him for his comment” which the plaintiff says refers to him it  is the contention of the defendants that no other person knows the plaintiff as the contractor.
 That while PW1 the managing director and PW2 associated with and part of personnel involved in the construction in question. The counsel referred the court to paragraph 3 of the statement of PW2 and his evidence under cross examination by which PW2 referred to the PW1 as plaintiff.
That PW2 used the word “HIM” to refer to the plaintiff and so it can not be taken that he was referring to a registered body such as BCC Tropical Limited, but to PW1. The counsel concluded that the plaintiff has failed to establish that the publication referred to it.
He added that where his second ingredient is not proved, i.e that the words refer to the plaintiff, then law requires no further proceeding to determine other factors and the court would be required to dismiss the suit reliance was placed on the case of DAILY TIMES VS. EMEZUOM (supra).
On whether the words are defamatory of the plaintiff the defendants submitted that the plaintiff has not proved that the alleged libelous work are defamatory of it or that it has caused other persons to shun or avoid it on that to reputation and integrity have been lowered in the estimation of other. Submitting that it is trite for a plaintiff to establish that the defamatory words have lowered his reputation and integrity in the estimating of right thinking member of the society, counsel referred he court to the definition of the word defamatory in blacks law dictionary (Ninth Edition) at page 480 thus.
“A communication is defamatory if it tend so to harm the reparation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him’
Having recourse to the definition above, the counsel on behalf of defendants submitted that the plaintiff has not shown how the alleged publication has harmed its deportation or forwarded its integrity before right thinking, members of the public.
The defendants alluded to non pleading by plaintiff of injury to its earnings but feelings which is only identifiable with natural beings. That paragraph 13 of the amended statement of claim has not been proved and neither did the plaintiff prove that its hard earned reputation has been subjected to unnecessary scrutiny.
In respect of the 4th ingredient publication of the word to the parties the defense counsel adopted his earlier submission in regard to the 1st ingredient above. He added that the plaintiff failed to prove any publication as required by law and could not also prove that the alleged defamatory words were published to anyone.
Next on the question whether the words are false, the defendants submitted that the plaintiff failed to prove that alleged defamatory publication is untrue. That if the alleged defamatory words are placed side by side with the evidence of the plaintiff it will be seen that the plaintiff clearly conceded the truth of the said words. The defendants asked the court to view the pleadings and evidence of the plaintiff which gave the sitting capacity of the stadium to target 32,000 as the alleged defamatory statement that gave the figure of 45,000 sitting capacity contracted.
The court was further referred to the evidence of PW1 under cross examination where he gave the number of seats upon completion of the stadium complex to be 44,000-45,000.
That the defendants tendered exhibit ‘D2’ which carries the publication of earlier interview granted by PW1 in which he had given the figure of 42,000- 45,000
Seats in the stadium, reference was made to page 15 paragraph 10 of exhibit ‘D2” where PW1 said the original number of 20,000 was increased to between 42,000-45,000 sitting capacity, so also paragraphs 8 and 9 of exhibit ‘D2’at page 15 where the commissioner for sports Mr. James Yakubu was credited as saying that the initial sitting capacity was 20,000 but increased to 45,000.
The defendants urged the court to put the testimony of PW1 alongside his averment in paragraph 6 of the amended statement and find that there is irreconcilable conflict between them as to the number of seats.
In view of that counsel urged the court to confirm the truthfulness of the publication is exhibit ‘D2’ which also confirm the evidence of DW1 at paragraph 12 of page 10 of his witness statement oath.
Counsel urged the court to find the alleged defamatory publication as true
Finally as to whether there is no legal justification for the publication of the words complained of it was submitted that all the words complained of are true the defendants adopted their submission in respect of the 5th ingredient and added the plaintiff has not shown any lack of justification for the alleged defamatory publication.
On the part of the plaintiff it is conceded that the alleged defamatory wards contained in exhibits ‘P2’ and ‘P10’ are pleaded in paragraphs 8,s 9 and 10 of the amended statement of clam.
The plaintiff’s counsel submitted the 2nd defendant not only admitted publication of the statement but also that he is the maker of the report. That ability for publishing defamatory words falls on all persons who participated or authorized it  is counsel contention therefore that the editor, printer publisher of the newspaper are jointly and severally liable for any libel which appears in the publication unless it is proved that they not aware of the defamatory material or that it was likely to contain such.
The court was referred to the case of VANGUARD MEDIA LTD VS. OLAFISOYE (2011) 14 NWLR (pt. 126) 207 at 245.
The plaintiff’s counsel’s contention that the defamatory statement must be published and must also be communicated to a third party is stating the obvious position of the law as also conceded by the defendants it behoves on the plaintiff to prove that the statement made was defamatory of him and same is capable of lowering him in the estimation of right thinking members of the society or lends to cause him to be shunned or avoided or even to be exposed to hatred contempt and ridicule as held in the case of KLM ROYAL DUTCH AIRLINES VS. MUSTAPHA TAHER (2014) 3 NWLR (pt. 1393) 137 at 202.
From the pleadings and evidence of the defendants it is not in dispute that some material was published, the question however is whether the plaintiff pleaded same.
In the case of  N.E.P.A  INAMETA (supra) it was held that publication of defamatory material must be to third party.
The court has gleaned through the pleadings of the plaintiff for the purpose of ascertaining whether a third party has been named to whom the alleged defamatory publication was make.
The court has not found any reference to a specific third party named in the pleadings except for ‘associated’ it true however witnesses calmed  for the plaintiff.  PW1 Mr. Plamen lliev and Engr. Sunday Kwaja PW2 both plaintiff and defendants agree that PW1 is the Chief Executive Officer and Managing Director of the plaintiff. The plaintiff as well as Pw1 as can be rightly inferred to be one and the same person as argued by the defendants. What then is the status of PW2? He rectified that he read the alleged defamatory statement but did not believe what he read. In effect the witness who said he has known and worked closely with PW1 as project supervisor since in the 1980’s said the contractor to doing an excellent job.
It must be borne in mind that the wrong of defamation consists of the publication society generally or which tends to make them shun or avoid the person. That is to say that the statement must be false and defamatory concerning and other person injure his reputation in his office, trade or professions
In the case under review the plaintiff is a corporate body BCC Tropical Limited and the particular words allegedly used by the defendants in paragraph 10 of its by the plaintiff’s counsel that the defendants wanted to damage the character of the plaintiff. The counsel added that the words were published by the defendant as contained in Exhibit ‘P2’ There is evidence before the court as earlier indicated that the defendants publish the alleged material even though no person was singled out as one to whom it was published in the pleadings of the plaintiff it is true that the words were published as admitted by the defendant in Exhibit ‘P2’ and “p10’ and also DW1 who is the 2nd defendant testified under cross examination that Exhibit. ‘P2’ is the publication of the 1st defendant and the caption in page 16 contractor singles Plateau State is the opinion of 1st defendant and not his (2nd defendant). He confirmed that his name as the group managing editor of Newsgate Magazine  and edits before sending the material for publication. In regard to Exhibit ‘P10’ DW1 said his name is on page 5 as group managing editor. Though admitting that the designation ascribed to his name on both Exhibit ‘P2; and ‘P10’ is wrong. Being typographical errors, he still stood by his publication.
The court concedes to the plaintiff the position of the aw that publication must not be to more than one person and also that it is not necessary in all cases to prove that the libelous matter was brought to the notice of some third party contains prima facie evidence of publication by the proprietor, editor printer publisher and any person who sells or distributes it.
Still in refreeze to the alleged defamatory statements, the plaintiff contends that the allegations damaged the corporal personality and character of the plaintiff because they are false and injurious. The plaintiff counsel asserts that the defendants knew words to be false when they published them to the whole world, and were recklessly indifferent as to whether the words were true or not.
The plaintiff’s counsel urged that the evidence of the plaintiff be taken as proved. Reliance was placed on the case of NATE VS. SANUAI (2001) NWR (pt. 725)
542 at 556 and Gatiey on Libel and slander, sweet and Maxwell 8th Editor pages 301-330
Arguing further that can action for libel is actionable parse, the plaintiff’s counsel said they every person has a right to protection of this good name reputation and the estimation which he stands in society of his fellow citizens
He submitted further that in the instant case malice is automatically inferred and damages follow for the test or determining whether the words complained on injure a reasonable man; the court was referred to the case of CHIEF NYA EDIM EKONG VS. CHIEF ASUQUO OTOP & 2ORS (2014)  11 NWR (pt. 1419) 549 at 566 – 579.
The submission of the plaintiff’s counsel is upheld, the plaintiff counsel in reaction to the argument of defendants in respect of the ingredients to be proved for plaintiff to succeed in a claim for defamation as laid down in the case of NSIRIM VS. ANYIM (supra) submitted that the words refer to plaintiff as there is only one contractor handing the stadium project in issue and that is valid point which the defendants cannot run away from.
The defendants relying on the plea of justification affirm that the words complained of are true since the plaintiff has not shown them to be false the defendant content that the seating capacity of the stadium is in doubt because in one breath the plaintiff’s managing director (PW1) who granted several audience to the effect that the contract was for construction of 44,000-45,000 where as palaintiff was planning to construct a 32,000 seating capacity. The defendant referred to the testimony pf DW2 (Nannim Hydro Janglur) in paragraph 11,12,20,26,27, and 28 figure to be between 5,000 and 7,000 seats. On the part of PW2, les stated that “that issue of 30,000-32,000 seats was dependent on size of seats”.
Form all the above pieces of evidence the court is deposed to agreeing with the defendants that there is uncertainty of the exact number of seat whether it is 32,000 or 45,000
Having recourse to the foregoing the plea of justification is sustained. In the circumstance of failure to prove the ingredients set down in the case of NZERIBE VS. ANYIM (supra) the court resolves issue two in favor of the defendants.
ISSUE THREE:
Whether the defense of fair comment is not available to the defendants. The defendants content that the defense of fair comment is available for the for the definition of fair comment the defendants referred the court to page 674 of Blacks Law Dictionary 9th Edition which is to the effect that it is a statement based on the writer’s or speaker’s honest opinion about a matter of public concern.
The defendant equally relied on the book DEFAMATION LAWS PRACTICE AND PROCEDURE (2ns Edition) by T.A.O d Tugbiyele at page 193 for what a defendant must prove as fair comment “where the defendant relies on a plea of lair comment he must prove that he subject matter commented on is one of public interest, and that the words complained of are a fair comment thereon”
The court was referred to the case of SKETCH VS. AYAGBEMOKERFI (supra) 710 to underscore the fact that the words companied of must be shown to be comment, fairly made and thirdly, on some matter of public interest.
The defendant referred to paragraph 6(c), (d) and (g) and 9(b) of their amended statement of defense together with paragraphs 12,13,15,and paragraph 19 of the  witness statement on oath of DW1 to submit  the have established them reliance on the pleas of fair comment.
The Zaria Road Stadium is project of public interest same being over the plateau state government as a public faculty . the court was also relayed  on the evidence of PW1 under cross examination when he said yes I knew that the general public has interest in the project I am carrying out now”. 
That by the status of the defendants media organization and report respectively it is common place to write and publish their comment on the condition and progress of work been done. The defendants again clam the case of SKETCH VS. AYAGBEMOKEREFI (supra) 697 and urged the court to be urged by the decision and to hold that the 2nd defendant being editor in-claim that the which he discharged to comment on the condition of work on the government stadium.
It was further submitted that the defendant as established 3rd ingredient i.e that the words complained to their to comment in the interest.
As to whether the statement/ comment is fair, it must be shown to be build on facts truly stated and secondly it must not contain imputations of corrupt on dishonorable motive on the person whose conduct or work is contain so far as such as imputation are warranted by the fact.
Thirdly it must be the honest expression of the writer’s real opinion
The defendant submitted that the publication is base on fact thoroughly State counsel pointed out that the number of seats in the stadium are less than mandate given to the contractor.
That , that was the basis of the comment made in the publication and the court was referred to the interviews PW1 confirmed granting at different for a where in he said the total seats will be between 44,000-45,000.
Defendant relied on Exhibit ‘D2’ page 15 paragraphs 8-12 and 14-17 so also Exhibit ‘D1’ page 14 paragraph 11-14. The attention of the court drawn to the witness statement on oath of PW1 in paragraph 5 thus”------------ and plaintiff merely propose to the client to increase same to 32,000” additionally the defendant appoint PW1 severally told the court the a deferent figure of 44,000 -45,000 as against his witness statement in paragraph 5 where he gave the number as 32,000 seat.
The court was urge to note the discrepancies in the plaintiff’s position and also bear in mind the fact that DW1 testify that the interviews granted by PW1 formed part of the sources of his publication Exhibit ‘P2’.
That in view of the discrepancies above noted it is inescapable to draw a conclusion that the contractor was out to defraud its client that the plateau state government. Further more a defendant urged the court to find that the imputation of a dishonorable motive has been establish.
In reply the plaintiff’s counsel said that the augment of the defense predicated on fair comment does not avail them.
It is the contention of the learned plaintiff’s counsel that the defendant allege fraud and that being criminal in nature ought to be proved beyond reasonable doubt.
That the court should not rely on the evidence of DW2 who is not witness of truth and stated clearly that his assessment was based on what he observed as he passed by the stadium he concluded that whatever comment or justification from such witness is anybody’s guess/ the plaintiff’s counsel cited the case of GIWA VS. JEJLOLA (2014) LPELR 22692 (CA) and submitted that the plea of justification means all words were true and cover not only the bare statements of facts only but any imputation the words may be taken to convey. The decision commended by the plaintiff’s counsel cannot be faulted because that represents the position of the law, but note however that the 2nd defendant who testified as DW1 took responsibility  for the reportage, based on their Amended Statement of defense paragraphs 6,(c),(b)and (g) and  9(b)
“6c. the said publication was not made maliciously or with intent to disparage the contractor or any person, but a fair, just and honest publication made in good faith, of the outcome of resourced information gathered by the publisher on the facts pertaining to the way and manner in which the contraction of Zaria Road Stadium was being carried out by the contractor.
(g)in so far as the words consist of allegations of fact, the are true in substance and I fact, and in so far as they consist of expressions of opinion they are fair comments made in good faith and without malice upon facts which are matters of public interest”.
“9(b). the publication was not made maliciously, but an honest press comment on public matter in which public had a legitimate interest”.
See also paragraph 19 of the witness statement of DW1. I refer also to paragraph 9 of the same witness statement on oath of DW1. The said witness made reference to the publications which were admitted in evidence as Exhibit ‘D1’ and ‘D2’ being News publications know as count in which Newspaper and the fountain Magazine a publication of the directorate of press and Public Affair
Governor’s office jos plateau state. The above exhibit formed part of the source of his reportage.
Having considered the whole game of the his pleadings and evidence in relation to his report and opinion, the court is of the view that plea of fair comment avails the defendant in this instance see SKETCH VS. AJAGBEMOKEFERI (supra) consequently issue three is resolved in the affirmative.
ISSUE FOUR:
Whether or not the said publication is malicious and false and calculated to blemish the person and character of the plaintiff.
Counsel on behalf of the plaintiff of the plaintiff referred the court to paragraph 10 of the amended statement of claim where the words “defraud and doles out money” were used by the defendants in their publication exhibits ‘P2’ and ‘P10’ and the fact that DW1 who is the 2nd defendant admitted making them.
It is counsel’s submission that the words and phrases complained of constitute libel as same were published to third parties, they were false or lack accuracy and are not legally justifiable.
Going by both the pleadings and evidence adduced in this case the fact of publication is not in dispute. What is in dispute is the aspect to falsehood and legal justification.
Both of these point have been considered in issuers two and there with resolutions reached.
The court adopts the findings on these aspects and resolves this issue in the negative,
ISSUE FIVE:
Whether or not the plaintiff, is entitled to damaged for defamation character assassination of the person and character of the plaintiff.
On behalf of the plaintiff learned counsel contends that the ton of defamation spoken or written is always adorable if damage is proved.
 Counsel added that the law will infer damage needed to found the action when written or printed words impute a crime punishable with imprisonment.
It is conceded to the plaintiff as firmly settled in law that ever, libel amount to a wrong whereby the law imputes damages upon proof by plaintiff that libel has been published against him without legal justification.
The case of CROSS RIVER STATE NEWSPAPER CORPORATIION VS. ONI & ORS (1995) 1 NWLR (pt. 371)270 was commended on this point.
In the instant case the aspect of legal justification has been dealt with under issue two and same having been resolved in favor of he defendant, the court will only adopt the reasoning therein.
The court has exhaustively considered the pleadings, evidence and also exhibit tendered in this case, being a action for defamation, the plaintiff has the burden of proving that the words complained of conveyed a defamatory meaning to whom they were published.
This burden has not been discharge as  even PW2, the associate PW1 emphatically told the court that he did not believe the statement because he know PW1 very well.
In sum the court is of the can did but firm view that the plaintiff has not proved his claim on the balance of probabilities to be entitle to damage issue five is consequently resolved against the plaintiff in the final analysis the court find no merit in the plaintiff’s claim and the suit is accordingly dismissed.
There is no cost awarded.

Hon. Justice C.L. Dabup
Judge
03-05-2018



Appearances:
A.I. Okafor Esq., with A.C. Akonani Esq., and A.M. Hassan Esq., for Plaintiff.
T.B. Kabang Esq., with M.J. Mwoltit Esq., for defendants.