ANI v. UGWUOKE & ORS (2020)

ANI v. UGWUOKE & ORS

(2020)LCN/14806(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Friday, November 20, 2020

CA/E/564/2014

RATIO

EVIDENCE: PRIMARY DUTY OF THE TRIAL COURT

The law is trite that it is the primary duty of the trial Court to properly evaluate and ascribe probate value to the evidence led by both parties before making its finding on the specific issues raised by the parties. The basic procedure for evaluation of evidence has been stated in a plethora of cases. The trial Court must properly appraise and evaluate the relevant and material evidence led in the case. After the evaluation, the evidence is placed on an imaginary scale to determine on which side the scale tilts. That is to say which of the evidence weighs more and should attract higher probative value? See ABISI & ANOR. V. EKWEALOR & ORS. (1993) LPELR-44 (SC) AT 53-54 (C-E). OGUDO V. STATE (2011) LPELR-860(SC) AT 29-30. NNEJI & ORS. V. CHUKWU & ORS. (1996) LPELR-2057(SC) AT 8-9 (E-A). MKPINANG & ORS. V. NDEM & ORS. (2012) LPELR- 15536(SC) AT 13-14 (F-B). In EZECHUKWU & ANOR. V. I.O.C. ONWUKA (2016) LPELR- 26055 (SC) AT 16-18 (D-A), the Supreme Court held that:
“To arrive at enduring decisions, the two Courts must correctly evaluate the affidavit evidence of the contending parties and apply the relevant laws to the ascertained facts. In Mogaji V Odofin (1978) 4 SC 65 at 67 this Court has outlined the proper procedure to be adopted by Courts in the particular task thus:- “In short, before a Judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weight them together. He will then see which is heavier not by the number of witnesses called by each party, but by quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the judge will naturally have regard to the following:-(a) Whether the evidence is admissible;(b) Whether it is relevant;(c) Whether it is credible;(d) whether it is conclusive; and(e) Whether it is more probable than that given by the other party. Finally, after invoking the law, if any, that is applicable to the case, the trial judge will then come to his final conclusion based on the evidence which he has accepted. “The above17 procedure applies to affidavit evidence as it does to oral evidence. See also Adeyeye v. Ajiboye (1987) 3 NWLR (Pt.61) 432 at 451.” PER BOLAJI-YUSUFF, J.C.A.

APPEAL: ATTITUDE OF THE APPELLATE COURT TO FINDINGS OF A TRIAL COURT

CRIMINAL LAW: WHO IS A PRIME SUSPECT

A prime suspect is a main suspect in a criminal investigation by the police. He is the person the police believe probably committed the crime being investigated. The police or any law enforcement agent may consider a person to be a prime suspect if his name is mentioned by witnesses or he is positively identified as the only person seen at or near the crime scene at the time the crime was committed or he is linked to the offence by some form of credible evidence or circumstance. PER BOLAJI-YUSUFF, J.C.A.

TORT: CLASSES OF PRIVILEGED STATEMENTS

Sections 180,181,184(1) and 190 (1) (e) of the TORTS LAW OF ENUGU STATE, CAP 150 VOLUME VI provides that:
180. “(1)Subject to the provisions of this part of this Law the Court is entitled to hold that the following classes of statements are privileged, that is to say:-
(a) Statements made in the discharge of public or private duty;
(b) Statements made on a subject-matter in which both the defendant and the person to whom the statements are made have legitimate common interest;
(c) Statements made by the defendant in the conduct of his own affairs in a matter in which his interest is concerned;
(d) Statements made by the defendant to obtain redress for a grievance;
(e) Statements made by the defendant in reply to inquires by, or on behalf of, the plaintiff or at his invitation.
(2) Notwithstanding the provisions of this section, the Court is also entitled to hold that any other statement not falling within the class of statements mentioned in subsection (1) in a matter that is before it, shall nevertheless be privileged if it is made on an occasion upon which, on grounds of public policy and convenience, a person ought to be free, without incurring legal liability, to make such statement about another even if it is otherwise defamatory.”
181. “Where there is duty, legal or moral, to make a statement, and such duty forms the grounds of privilege, the person making such statement is entitled to use all reasonable means of doing so although such means may include the introduction of a third person, when that is reasonable in the ordinary course things.”
184. (1) “Subject to this section, the publication in a newspaper of any such report or other matter as is mentioned in Section 189 and 194 shall be privileged unless the publication is proved to be made with malice.
190. (1) “A newspaper statement shall be privileged subject to explanation or contradiction if it is-
(e) A copy of a fair and accurate report or summary of any notice or other matter issued for the information of the public by or on behalf of a Government department, office of State, Local Government Council or superior officer of police.” PER BOLAJI-YUSUFF, J.C.A.

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

INNOCENT ANI APPELANT(S)

And

1. FRANCIS UGWUOKE 2. LEADERS & COMPANY LIMITED 3. SIMON KOLAWOLE RESPONDENT(S)

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): The appellant herein instituted suit no. E/6/2009 against the respondents wherein he claimed the following reliefs:
(i) “#100,000,000.00 (One Hundred Million Naira) damages for libel.
(ii) An injunction restraining the defendants from further publication of the said libel.
(iii) An order of court compelling the defendants to publish in the This Day unqualified apology in favour of the plaintiff.”

The suit was commenced against 4 defendants. The Commissioner of Police, Enugu State was the original 1st defendant. The appellant filed a notice of discontinuance of the case against the Commissioner of Police. Upon the striking out of the name of the Commissioner of Police from the case, the respondents became the 1st – 3rd defendants. The gist of the appellant’s case is contained in paragraphs 1 and 6-11 of the statement of claim wherein he averred that:
1. “The plaintiff is a medical practitioner and was at the material time to this case a medical officer working at the University of Nigeria Teaching Hospital, Enugu.
6. On 6th

October, 2008, the 1st defendant ostensibly acting as the Commissioner of Police in charge of Enugu State Command reportedly called a press conference of the various media in the country the 4th defendant inclusive and falsely presented the plaintiff as being involved in a syndicate of child traffickers who is on the run and has been declared wanted by the Nigerian Police Force.
7. On page 14 of the This Day published for sale on Tuesday, 7th October 2008 the defendants acting in concert falsely and maliciously published of and concerning the plaintiff, the following story defamatory of the plaintiff, that is to say:-
POLICE RAID ANOTHER ‘BABY FACTORY’ from Francis Ugwoke in Enugu
Enugu State Police Command yesterday raided another maternity home suspected to be involved in breeding babies for sale and arrested seven teenage pregnant girls confined in the hospital awaiting delivery.
…However, the police declared that four prime suspects, Dr. Ani Innocent, Dr Nwachukwu, Matron of the Hospital, Mrs Chizoba Eneh and another described as the King pin of child-trafficking business, Mrs Mamere were at large.
Enugu State

Commissioner of Police Mr Sani Magaji, told newsmen yesterday that a manhunt has commenced for the suspects.
…Magaji said efforts were on to arrest all the suspects at large adding that the teenage pregnant girls, including the suspects would be handed over to the National Agency for the Prohibition of Trafficking in persons and other Related Matters (NAPTIP) for further action…
The plaintiff pleads a copy of the said newspaper more particularly page 14.
8. The said newspaper sold to the public (sic) including the plaintiff’s friends in Enugu and elsewhere who telephoned him expressing their disgust that the plaintiff was declared wanted by the police. It was also read on the internet.
9. It is utterly untrue that the plaintiff was ever involved in any child trafficking, the running of any illegal foster home and/or was he invited by the police. Neither is it to the knowledge of the plaintiff that Chief Dennis Memorial Hospital where the plaintiff did work as part-time medical officer was ever involved in such act.
10. The plaintiff states that if the defendants had made even a casual enquiry they would have found out that the

plaintiff was still working at the said hospital and also at the University of Nigeria Teaching Hospital, Ituku-Ozalla, Enugu, at the time of the report and that nobody ever contacted him or even invited him to any police station.
11. The said publication has lowered the plaintiff in the estimation of his numerous friends, relations and associate bodies and exposed him to odium and ridicule.”

The respondents’ defence is contained in paragraphs 4, 5, 10 and 11 of their amended statement of defence wherein they averred that:
4. “Paragraph 6 of the plaintiff’s statement of claim is admitted to the extent that on the said day, the Head of the Police Force in Enugu as at that time invited the Media Houses in Enugu with the 2nd-4th defendants included in which they exposed the efforts being made by the police to checkmate child trafficking in Enugu as (sic) also their attempt to carry out the proper investigation as to the truth or otherwise of the names of the people who were suspected to be involved.
5. Paragraph 7 of the statement of claim is admitted to the extent only that what was published in the news was in line

with the Press Release issued concerning the activities of the Police in Enugu State. The police have not denied that they caused the publication to be made or that they have concluded their investigation of the issues which is the subject matter of the claim and mandate. It is stoutly denied that the defendants acting in concert falsely and maliciously published any story defamatory concerning the plaintiff. What the defendants published was a Press Release concerning police activities in the East with respect to child care and welfare which the police have the full authority to conduct enquires to issues relating to child welfare and care not only in Enugu State but also in the whole country. The 2nd-4th defendants shall at the trial contend that the publication of the police at the Press Conference called by them dealt with issues within their rights and competence and police did not say that one had been proved to be correct or false. The 2nd-4th defendants further aver that they do not know who the plaintiff is and have no reason whatsoever to damnify or calumniate the persons mentioned in the Newspaper Publication.
10. The 2nd-4th defendants deny

paragraphs 12, 13, 14 and 15 of the statement of claim and aver that the plaintiff shall at the trial be put to the strictest proof thereof as indeed the whole story made by the plaintiff has to be seen as an exclusive matter between the plaintiff and the 1st defendant. The 2nd–4th defendants were not involved. Plaintiff shall at the trial be put to very strict proof thereof. It is equally denied that 2nd–4th defendants received any letter from the plaintiff concerning the issues in controversy. The 2nd–4th defendants shall at the trial contest that the contents of the Press Release published by the police was in the main a privileged occasion by which every responsible journalist is expected to display a keen sense of journalism.
11. The 2nd–4th defendants deny paragraph 16 of the statement of claim and further state that what they published was a Press release made by the 1st defendant and that they are not in position to compensate the plaintiff for a matter which is of public interest as at the time and which was also published by various Newspapers. 2nd – 4th defendants do not know who the plaintiff is and it will be wrong to

accuse the 2nd – 4th defendants of having any malice towards the plaintiff- a person they do not know nor had they had any dealings with him nor have they had any interactions with him whatsoever. 2nd – 4th defendants shall at the trial contend that issues relating to child welfare and care are matters within the competence and authority of the Nigerian Police to investigate and implore every necessary legal step for their protection. The 2nd – 4th defendants hereby deny paragraph 16(i), 16(ii) and 16(iii) of the statement of claim, it being that they owe nobody any apology for publishing the News that the Police has the authority to protect the interest of the children and issues concerning child welfare of which, the police and the press are seriously and joined to protect.”

The appellant filed a reply to the statement of defence wherein he averred that:
2. “In answer to paragraphs 5, 7, 8, 10, 11 and 12 of the 2nd – 4th defendants’ statement of defence the plaintiff reiterates that the publication was made in bad faith and with malice against the plaintiff.
3 The plaintiff says that the above-

mentioned paragraphs are falsehood and the plaintiff puts the defendants to strictest proof of the averments therein.
4. The plaintiff denies that the defence of qualified (and/or occasioned privilege avails the defendants as stated in paragraph 10 of the statement of defence.
5. In further answer the plaintiff repeats that the defendants published the said statement with malice and to show same the plaintiff says as follows:-
(i) The defendants neglected and/or failed to take due diligence by reporting a false story not backed by any letter of invitation and/or press statement.
(ii) The plaintiff challenges the defendants to produce the letter of invitation and the press release/statement it received from the Nigeria Police in respect of the alleged press briefing.
(iii) By letter dated 10th October, 2008, the defendants were availed of the untruth of the allegations they published and asked to make amends yet they never deemed it fair in the interests of their alleged ‘responsible journalism’ to inform the general public of true information. The plaintiff will at the trial rely on the proof of delivery of the letter.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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(iv) The same letter gave the defendants the opportunity to cross-check the true facts of the false story it published knowing same to be false but they still ignored to take the advantage.
(v) Not all the news media carried the said story and/or published similar story.
(vi) The defendants bluntly and with malice refused to state the other side of the story it published which is in favour of the plaintiff.
(vii) The defendants failed to use the opportunity given to them to retract the story and/or publish the true facts to the public.
(viii) The defendants even failed in their alleged responsible journalism (public duty) to further inform the general public of the follow up outcome of its celebrated story.
(ix) In order to sell many copies of its dailies and maximize profit the defendants neglected their sacred duty to the public of informing it of the truth no matter whose ox is gored instead they continued to suppress the truth while maligning the plaintiff.”

The appellant testified in support of his case and called one other witness. The defendants called one witness. Parties filed and adopted written addresses. The

Court delivered its considered judgment on 16/5/2013 and dismissed the appellant’s case. Being dissatisfied with the judgment, the appellant filed a notice of appeal against the judgment on 13/8/2013 wherein he raised the following grounds of appeal:
GROUND 1
“The learned trial judge erred in law when he held that what is material to the determination of the case before it was whether some people were arrested and paraded before pressmen on 6th October, 2008. This is a wrong evaluation of the evidence submitted by the parties.
GROUND 2
The learned trial Court erred in law by considering and evaluating extraneous matters not placed before it and using same to arrive at its decision, an action which influenced its ignoring the proper evaluation of the evidence placed before it.
GROUND 3
The learned trial Court erred in law when it held that the plaintiff was not defamed as a close examination of the contents of the publication by the defendants only disclosed the plaintiff as being a prime suspect.
GROUND 4
The learned trial Court erred in law when it held that the plaintiff is one of the suspects invited by

the police for purpose of investigations of case of child trafficking and that it was by exhibit 5 that the plaintiff was invited to report on Thursday 23rd October, 2008, to assist in the ongoing investigation.”

The appellant’s brief of argument was filed on 23/1/2017. It was deemed as properly filed and served on 5/4/17. The respondent’s brief was filed on 28/4/2017. The appellant’s counsel referred to the only issue decipherable in his brief as issue B. I cannot find any issue A formulated by the appellant’s counsel. Thus the sole issue formulated by the appellant’s counsel is:
“Did the appellant discharge the onus of proof placed on him in respect of the libel as claimed in this suit.”

The respondent’s counsel formulated the following issue for determination:
“Whether the learned trial judge did proper evaluation of evidence before dismissing appellant’s case at the lower Court in its entirety.”

I find the two issues formulated by the counsel to both parties to be relevant to the determination of this appeal. The two issues shall be considered

together as they are interwoven.

The appellant’s counsel referred to GUARDIAN NEWS PAPERS V. AJEH (2005) 12 NWLR (PT.938) 205 AT 225 (F-H) and 226 (A-B). OTOP V. EKONG (2006) 9 NWLR (PT.986) 533 AT 554 (B-B) on the ingredients of defamation which must be established by the plaintiff. He submitted that the appellant proved the publication of the words complained of and that the words complained of referred to him. It is further submitted that the appellant also proved that the use of the words prime suspects and kingpins in relation to child trafficking syndicate and running a baby factory were defamatory of him and PW2’s evidence showed that the publication was seen by 3rd parties. Counsel contended that the Court below misinterpreted the provisions of Sections 190(1) (c) and 194 (1) (a) of the Torts Law of Enugu State as the respondents never established the truth of the publication or that the plaintiff’s name was ever mentioned by the police. He further contended that the Court below did not carefully evaluate the evidence led that no invitation to a press conference or a press release exists or that the alleged press conference where

the appellant’s name was mentioned took place and DW1 who testified for the respondents admitted that he was not present at the alleged press conference. He submitted that the admissions of the respondents about the publication of the words complained of, their inability to prove the source of the publication alleged to have been given to them by the Commissioner of Police and the unchallenged evidence of PW2 (a 3rd party to whom publication was made) are sufficient without more to prove libel. He referred to ATOYEBI V. ODUDU (1990) 6 NWLR (PT.157) 384 AT 399 (H) MAKINDE V. OMAGHOMI (2011) ALL FWLR (PT.578) 989 AT 1000 (G), 1002-1003 (H-C).

In response, the respondent’s counsel submitted that it can be inferred from exhibits 1 and 2 tendered by the appellant that there was actually a press briefing by the police on 6/10/2008 concerning child trafficking and it is not in dispute that the appellant is the doctor in charge of Chief Dennis Memorial Hospital which was being investigated for child trafficking. He further submitted that by virtue of Section 131 (1) and (2) of the Evidence Act, 2011, the burden to prove that what the 2nd respondent

published was not a true reflection of the police briefing lies on the appellant. He referred to ADEGOKE V. ADIBI (1992) 5 NWLR (PT.242) 410, (1992) 6 SCNJ 136.

It is submitted that Exhibit 6 having stated that “alleged criminal activities of the staff of the hospital have been uncovered and the appellant having admitted that he is a staff of Chief Dennis Memorial Hospital, the publication in the 2nd respondent’s This Day newspaper is a fair and accurate report or summary of the police press briefing issued on 6/10/2008. Therefore, the defence of fair comment avails the defendants by virtue of Sections 190 (1) (c) and 194 (1) the Torts Law. Counsel finally submitted that the observation of the court below that child trafficking has become a social evil and a matter of public interest is not an extraneous matter as it is supported by the contents of exhibits 1, 5, 6 and 7 tendered by the appellant. He urged the court to dismiss the appeal.

RESOLUTION
The appellant contended that the Court below did not carefully evaluate the evidence before giving judgment against the appellant. The law is trite that it is the primary duty of the trial

Court to properly evaluate and ascribe probate value to the evidence led by both parties before making its finding on the specific issues raised by the parties. The basic procedure for evaluation of evidence has been stated in a plethora of cases. The trial Court must properly appraise and evaluate the relevant and material evidence led in the case. After the evaluation, the evidence is placed on an imaginary scale to determine on which side the scale tilts. That is to say which of the evidence weighs more and should attract higher probative value? See ABISI & ANOR. V. EKWEALOR & ORS. (1993) LPELR-44 (SC) AT 53-54 (C-E). OGUDO V. STATE (2011) LPELR-860(SC) AT 29-30. NNEJI & ORS. V. CHUKWU & ORS. (1996) LPELR-2057(SC) AT 8-9 (E-A). MKPINANG & ORS. V. NDEM & ORS. (2012) LPELR- 15536(SC) AT 13-14 (F-B). In EZECHUKWU & ANOR. V. I.O.C. ONWUKA (2016) LPELR- 26055 (SC) AT 16-18 (D-A), the Supreme Court held that:
“To arrive at enduring decisions, the two Courts must correctly evaluate the affidavit evidence of the contending parties and apply the relevant laws to the ascertained facts. In Mogaji V Odofin (1978) 4 SC 65 at 67 this

Court has outlined the proper procedure to be adopted by Courts in the particular task thus:- “In short, before a Judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weight them together. He will then see which is heavier not by the number of witnesses called by each party, but by quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the judge will naturally have regard to the following:-(a) Whether the evidence is admissible;(b) Whether it is relevant;(c) Whether it is credible;(d) whether it is conclusive; and(e) Whether it is more probable than that given by the other party. Finally, after invoking the law, if any, that is applicable to the case, the trial

judge will then come to his final conclusion based on the evidence which he has accepted. “The above17 procedure applies to affidavit evidence as it does to oral evidence. See also Adeyeye v. Ajiboye (1987) 3 NWLR (Pt.61) 432 at 451.”

In the instant case, the Court below in discharging its duty referred to the evidence of PW1 and DW1 and the exhibits tendered by the appellant. The Court at pages 154-155 of the record analyzed and evaluated the evidence as follows:
“A close examination of the contents of the publication by the defendants discloses that the plaintiff has been described as a prime suspect. According to Blacks Law Dictionary 9th Edition at page 1311 the word prime means “to take priority over”. The word suspect has been defined as considering a person as having probably committed wrong doing but without certain truth. As a matter of fact suspicion connotes the apprehension or imagination of the existence of something wrong based only on inconclusive or slight evidence. Flowing from the above analysis, the plaintiff and three others have been published by the defendants to be suspects that ought to be given priority in

the case of child trafficking being investigated by the police.
Section 190 (1) (c) of the Torts Law of Enugu State Cap 150 Revised Laws of Enugu State 2004 provides as follows:
“A newspaper statement shall be privileged subject to explanation or contradiction if it is a copy of fair and accurate report or summary of any notice or other matters issued for the information of the public by or on behalf of government department, office of State Local Government council or superior officer of police.”
Furthermore, Section 194(1) (a) of the Torts Law (supra) provides that “fair comment shall be a defence in an action for libel or slander if such comment is based on facts truly stated.
The publication complained of in this suit was published in other newspapers apart from that of the defendants.
I therefore find as find as a fact from the exhibits tendered by the plaintiff himself that the police paraded some teenage girls described as social mothers, nurses and other staff of Chief Denis Okafor Memorial Hospital in the presence of press men on 6th October 2008. I also find as a fact that the plaintiff is one of the

suspects invited by the police for purpose of investigation of the case of child trafficking after the raid carried out in the hospital where the plaintiff is part time medical practitioner. It is not in evidence that the defendants published his name as a kingpin of child trafficking contrary to the claim of learned counsel in his final address in this case. Rather he has been described as a prime suspect.
A wrong impression has been created by the plaintiff in this case to the effect that by the publication he has become a child trafficker. But the police in the instant case carried out the raid and other acts in suspicion; which it is authorized to do while exercising its power of detection and investigation of criminal activities in the society pursuant to the Police Act. What is material in the case before the Court is whether some people were arrested and paraded before pressmen by the police on 6th October 2008. Whether it is referred to as press release or parading of suspects before newsmen or pressmen or by whatever name called, the truth of the matter is that the defendants published an actual event that took place on 6th October 2008. It is

not the eventual outcome of the police investigation that is material in this case. It is the act of publishing an event that actually occurred.
I therefore hold that the defendant’s action was based on the publication of an event that occurred and that the words published are true. It is on a matter of public interest and the contents were a fair presentation from the facts. See the case of Turner V. Metro-Godwin (1950) 1 All ER 40. South HcHon Coal Corporation Vs. North Eastern News Association (1894) 1 QB 133.”

The law is trite that an appellate Court cannot disturb the findings of a trial Court where the Court has properly evaluated the evidence led i.e. to say when all the principles of law relevant are properly considered. Findings of fact by the trial judge involve both perception and evaluation. It is clear from the portion of the judgment of the Court below quoted above that the Court below evaluated the evidence led, both oral and documentary, made its findings before applying the provisions of the relevant law to the findings and then came to the conclusion that the appellant’s action is misconceived.

I have perused

the pleadings and the evidence on record. By paragraph 6 of the statement of claim, the plaintiff himself pleaded that the Commissioner of Police in charge of Enugu State Command reportedly called a press conference of the various media in the country including the respondents and falsely presented him as being involved in a syndicate of child traffickers who is on the run and has been declared wanted by the Nigerian Police Force. The law is settled that what is admitted needs no further proof. Once the appellant admitted that the police called a press conference where he was allegedly falsely presented as being involved in the alleged child trafficking, there was no onus on the respondents to lead evidence on that fact.
The appellant’s argument that no invitation to the press conference or a press release exists to show that the press conference took place and that the name of the appellant was mentioned amounts to speaking from both sides of the mouth and an afterthought. Apart from the pleadings of the appellant, paragraph 1 of Exhibit 3 written by the appellant’s counsel to the Commissioner of Police clearly stated that “The Vanguard

published on Tuesday 7th day of October, 2008 and The Sun published on Wednesday, 8th October, 2008, both carried a story on pages 13 and 7 respectively, crediting their report to you that Ani Innocent, a medical doctor, is one of the kingpins of ‘the child trafficking syndicate and was declared wanted”. Exhibits 9A-9D confirmed that the police arrested and paraded some pregnant ladies and staff of the hospital suspected to be involved in the alleged child trafficking. The finding of the Court below that the respondents published an actual event that took place on 6th October 2008 is supported by the evidence on record.
The grouse of the appellant is that his name was not mentioned by the police at the press conference or during the parade of the suspects. DW1 in paragraph 9 of his statement on oath on page 62 of the record stated that the respondents did not know the appellant before the press conference by the police. The evidence was not challenged under cross examination. If the appellant’s name was not mentioned at all by the police, how did the respondents come about the name of the appellant? How did The Vanguard and The Sun newspapers

come about his name. On the appellant’s own showing through Exhibit 3, the appellant cannot turn round to say that his name was not mentioned at the press conference.
There is no dispute that the appellant was working in the hospital as a medical practitioner and medical officer as at the date the hospital was raided and the pregnant teenage girls found therein were paraded by the police. A close reading of the publication upon which this action is predicated shows that the word kingpin did not in fact refer to the appellant. The word referred to another person whose name was not mentioned. The portion of the publication where the word was used reads: “the police declared that four prime suspects, Dr. Ani Innocent, Dr Nwachukwu, Matron of the Hospital, Mrs Chizoba Eneh and another described as the King pin of child-trafficking business, Mrs Mamere were at large.”
The 3 persons whose names were mentioned were referred to as prime suspects. A prime suspect is a main suspect in a criminal investigation by the police. He is the person the police believe probably committed the crime being investigated. The police or any law enforcement agent may

consider a person to be a prime suspect if his name is mentioned by witnesses or he is positively identified as the only person seen at or near the crime scene at the time the crime was committed or he is linked to the offence by some form of credible evidence or circumstance. In the instant case, the police had a good reason to consider the appellant a prime suspect in the investigation of the alleged baby factory and child trafficking. He is a medical practitioner and was the medical officer in the hospital when several pregnant teenage girls who were said to be “social mothers”, whatever that means were found being harboured in the hospital. The appellant was still a suspect, nowhere in the publication is it stated that he committed the crime. The Court below properly evaluated the evidence. The finding that the appellant wrongly created the impression that by the publication he has been presented as a child trafficker is sound, correct and cannot be disturbed by this Court.
Sections 180,181,184(1) and 190 (1) (e) of the TORTS LAW OF ENUGU STATE, CAP 150 VOLUME VI provides that:
180. “(1)Subject to the provisions of this part of

this Law the Court is entitled to hold that the following classes of statements are privileged, that is to say:-
(a) Statements made in the discharge of public or private duty;
(b) Statements made on a subject-matter in which both the defendant and the person to whom the statements are made have legitimate common interest;
(c) Statements made by the defendant in the conduct of his own affairs in a matter in which his interest is concerned;
(d) Statements made by the defendant to obtain redress for a grievance;
(e) Statements made by the defendant in reply to inquires by, or on behalf of, the plaintiff or at his invitation.
(2) Notwithstanding the provisions of this section, the Court is also entitled to hold that any other statement not falling within the class of statements mentioned in subsection (1) in a matter that is before it, shall nevertheless be privileged if it is made on an occasion upon which, on grounds of public policy and convenience, a person ought to be free, without incurring legal liability, to make such statement about another even if it is otherwise defamatory.”
181. “Where there is duty,

legal or moral, to make a statement, and such duty forms the grounds of privilege, the person making such statement is entitled to use all reasonable means of doing so although such means may include the introduction of a third person, when that is reasonable in the ordinary course things.”
184. (1) “Subject to this section, the publication in a newspaper of any such report or other matter as is mentioned in Section 189 and 194 shall be privileged unless the publication is proved to be made with malice.
190. (1) “A newspaper statement shall be privileged subject to explanation or contradiction if it is-
(e) A copy of a fair and accurate report or summary of any notice or other matter issued for the information of the public by or on behalf of a Government department, office of State, Local Government Council or superior officer of police.”
The statement made by the police was made in the discharge of its statutory and constitutional duty to prevent and detect crime, apprehend offenders, preserve law and order, protect life and property and enforce all laws and regulations with which they are directly charged

under Section 4 of the POLICE ACT. The issue of child trafficking is an issue in which both the police and the press who are the eyes and the ears of the society at large are interested. The police have a duty to inform the public about their investigative activities and are entitled to use all reasonable means to do so. There is no doubt that the publication is a fair and accurate report of what happened at the press conference held by the Commissioner of Police who no doubt is a superior officer of the police for the information of the public.
The Court below correctly applied the provisions of Section 190 (1) (e) of the TORTS LAW OF ENUGU STATE to the facts and circumstances of this case. The argument of the appellant’s counsel that the Court below failed to appreciate that a press release is a written or recorded communication directed at the members of a news media is totally misconceived in the face of Exhibits 9A-9D which are the photographs of the pregnant girls and suspects taken by the police at the said press conference. Exhibit 2 written to the Commissioner of Police clearly confirmed that the police arrested and paraded pregnant teenage

girls referred to as “social mothers”, nurses and other staff of the hospital suspected of being involved in child trafficking. The photographs in my view spoke louder than written documents.
The Court below in concluding that the appellant’s claim lacked merit held as follows at page 155-156 of the record that:
“The daily newspapers of recent are inundated with reports of arrest of pregnant teenage girls sheltered in hospitals. The reports are that they are used in a baby factory for the purpose of trafficking in children. It has apparently become a social evil and a matter of public interest. I do not see how the present report on the activities of the police to eradicate the evil practice can become a subject matter of litigation in an action for defamation. All the essential ingredients of defamation as stated in the case of Guardian Newspapers Ltd V. Ajeh (2005) 12 NWLR (Part 938) 205 at 225 are not present in this case. There is no falsity or lack of accuracy of the words complained of by the plaintiff.
The plaintiff’s action is not only misconceived. It is a fruitless exercise in prospecting and digging for

gold where there is none. The entire claims before the Court lack merit. This suit is hereby dismissed. On the issue of costs it seems to me that the defendants are entitled to costs. I therefore award #10,000.00 (Ten Thousand Naira) costs against the plaintiff in favour of each of the 1st, 2nd and 3rd defendants.”
The appellant’s counsel submitted that the above observation showed that the Court was swayed by extraneous facts which were not before it in the determination of the appellant’s claim. The observation of the Court is amply supported by Exhibit 7 tendered by the appellant wherein it is stated that several similar cases have been discovered in Nigeria in recent years. Apart from Exhibit 7, I do not think the Court can pretend or closed its eyes to the realities of our time and one of the realities is the emergence of baby factories, child trafficking and child abuse. These are issues in which unarguably the public is interested.
The law is settled that in order to succeed in a claim for defamation, the plaintiff must prove the following ingredients of defamation: (1) Publication of the offending words. (2) That the words

complained of refer to the plaintiff. (3) That the words were published to third parties. (4) That the words are defamatory of the plaintiff. (5) That the words were false or lack accuracy, and (6) That there are no justifiable legal grounds for the publication of the words. See OLOGE & ORS. V. NEW AFRICA HOLDINGS (2013) LPELR-20181 (SC) AT 19 (A-C). EKONG V. OTOP & ORS.(2014) LPELR-23022 (SC) AT 20 (A-F). In the instant case, the appellant proved publication of the words complained of, the fact that the words prime suspects referred to him and that the word was published to a third party. The appellant failed to prove that the words are defamatory of him, that the words were false or lack accuracy or that there are no legal grounds for the publication of the words.
The facts and circumstances established by the evidence on record shows that the publication is a fair and accurate report of the press conference held by a superior officer of the police for the information of the public who has interest to receive it. An occasion is privileged when the person who makes the publication has a duty to make it to the person to whom he makes it and the person

who receives it has an interest in hearing it. These two conditions must exist in order that the occasion may be privileged. The conditions exist in this case. Therefore, the publication in this case was absolutely privileged. The assertion that the publication was made in bad faith and with malice is unfounded. See ILOABACHIE VS ILOABACHIE (2005) 5 SCNJ 84 at 293-294. NWAKOBY V. AHAM & ORS. (2016) LPELR- 41511(CA) AT 21-23 (F-A). SULE & ORS. V. ORISAJIMI (2019) LPELR-47039 (SC) AT 12-15 (B-A). The Court below was on very firm ground when it dismissed the appellant’s claim for lacking in merit.

In conclusion, the appeal fails. It is hereby dismissed. The judgment of the High Court of Enugu State delivered by R.O.OGUDU, J in suit no. E/6/2009 on 16/5/2013 is hereby affirmed. There shall be #100,000: 00 costs in favour of the respondents against the appellants.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother MISITURA OMODERE BOLAJI-YUSUFF, JCA and I totally endorse the reasoning and conclusion therein.

For the more detailed

reasoning in the lead judgment, I equally find no merit in this appeal and I accordingly dismiss it.

ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, MISITURA OMODERE BOLAJI-YUSUFF, JCA, just delivered. I am in total agreement with the decision reached and the reasoning behind the decision.

For the above reasons and of course the detailed ones adumbrated in the lead judgment, I too, hold that the appeal lacks merit. Same is equally dismissed. I abide by the order as to cost made in the lead judgment.

Appearances:

Ifeanyi Okumah
For Appellant(s)

T. Odili For Respondent(s)