H. O. OGBODU, ESQ. V. SSAUIHRIAI & ORS.
(2012)LCN/5314(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 25th day of April, 2012
CA/B/50/2007
RATIO
TORT: TEST TO ESTABLISH DEFAMATORY MEANING
The test to establish defamatory meaning is that the words should be given the natural and ordinary meaning that would be conveyed to the reasonable reader who is presumed not to be naive but capable of reading between the line and not to be unduly suspicious so that he will choose a defamatory meaning over a non defamatory meaning. See the case of:
SKUSE VS. GRANADA TELEVISION LTD. (1996) EMLR 278
AYENI VS. ADESINA VS. ADESINA (2007) ALL FWLR (PT.370) 1451
Words also are said to be defamatory if in their ordinary meaning they render the person about whom they are spoken of odium, shame and disgrace. PER GEORGE OLADEINDE SHOREMI, J.C.A.
TORT: INGREDIENTS OF PROVING DEFAMATION
Therefore a plaintiff in an action for defamation has the onus of proving six ingredient as follows:
(1) Publication of the offending words
(2) That the words are defamatory of the defamation claimant
(3) That the words complained of refer to the claimant
(4) That the word were published to third parties
(5) Falsity or lack of accuracy of the words complained of and
(6) That there are no justifiable legal ground for the publication of the words
See: ILOABACHIE VS. ILOABACHIE (2005) 13 NWLR PT. 943, 695 SC
GUARDIAN NEWSPAPER LTD V. AJEH (2005) 12 NWLR (PT. 938) 205
N.A.C.B LTD VS ADEAGBO (2004) 13 NWLR (PT.894) 551 PER GEORGE OLADEINDE SHOREMI, J.C.A.
APPEAL: ATTITUDE OF THE APPELLATE COURT TOWARDS INTERFERING WITH THE FINDINGS OF THE TRIAL COURT
The Law is that an appellate court will not ordinarily interfere with the findings of the trial court except in circumstance such as where the trial court has not made proper use of the opportunity of seeing and hearing the parties at the trial or where it has drawn wrong conclusion from accepted credible evidence or the conclusion is perverse or unsupported by the evidence
See: OKPIRI VS. JONATHAN (1961) 1 SC NLF 174 PER GEORGE OLADEINDE SHOREMI, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
FOLAYEMI OYEBISI OMOLEYE Justice of The Court of Appeal of Nigeria
Between
H. O. OGBODU, ESQ. Appellant(s)
AND
1. SENIOR STAFF ASSOCIATION OF UNIVERSITIES TEACHING HOSPITALS RESEARCH INSTITUTE AND ASSOCIATED INSTITUTIONS (SSAUIHRIAI) 2. MEDICAL AND HEALTH WORKERS UNION OF NIGERIA (M & HWUN)
3. DEACON NOSA OBADIARU
4. COMRADE CHURCHILL E. ASEMOTA
5. A. I. AKHAZE Respondent(s)
GEORGE OLADEINDE SHOREMI, J.C.A., (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Edo State sitting at Ubiaja delivered on the 25th of September, 2006.
The Appellant who was the plaintiff in the lower court claimed as in his paragraph 22 of his amended statement of claim on which the case was fought reads as follows and I quote.
’22. Wherefore the Plaintiff claims against the Defendants jointly and or severally:-
(a) N50,000,000.00 (Fifty million naira) against the Defendants jointly and or severally in that on or about the 29th day of July, 2003 the Defendant falsely and maliciously wrote and published to 1. The President and Commander in Chief of Armed Force of the Federal Republic of Nigeria, Chief Olusegun, through the Head of Civil Service, Federal Ministry of Establishment, Abuja. The Permanent Secretary, Federal Ministry of Health, Abuja. Copying His Excellency, Chief Atiku Abubakar The Vice President, Abuja. The Chairman, Independent Corrupt Practices and other Related Offences Commission (ICPC), Abuja. The President of the Senate National Assembly, Abuja. The Speaker, House of Representative, National Assembly, Abuja. The Inspector General Police, The Police Head Quarters, Abuja. The Secretary to Civil Service, Federal Ministry of Establishment, Abuja. The Attorney General of the Federation/Minister of Justice, Abuja. The Honourable Minister Federal Ministry of Health, Abuja. The Director, Transparency in Nigeria, General R.O. Ishola Williams, The Director, Nigerian Human Rights Commission, Plot 800, Blantyre Street, Wuse II Garki Abuja, The Manager African Independent Television (AIT) Abuja. The Press (The ‘Tell’ Magazine) of and concerning him the words’ following that is to say:-
“…….. Justice Nwazota also authorized the payment of the sum of N9,000,000.00 (Nine million naira) to H.O. Ogbodu Esq., as Consultancy fee, with voucher number Mar./E/2002 on 13th March, 2003 drawn with cheque number 2441852 from the Pension and Gratuity Account with the United Bank of African (UBA) Ugbowo Branch, Benin City. This money was taken from the payment mode by the Niger Insurance Company to UBTH, for the payment of Pensioners, thereby depriving these Senior Citizens of their Entitlements as at when due”.
By the Publication of the said words, the Plaintiff has been greatly injured in his credit and reputation and has been brought into scandal, Odium and contempt.
(b) Retraction of the said publication and public apology.
(c ) Perpetual injunction restraining the Defendants from Further publication(s) of the said libel pertaining to the Plaintiff.
The fact briefly stated are that –
“The 3rd and 4th respondents are members of the Board of Trustees of the Unified Pension Gratuity Scheme of University of Benin Teaching Hospital set up by the Federal Government. The 3rd and 4th Respondents are also Chairman of the 1st and 2nd respondents’ respectively while the 5th Respondent is also a member of the 1st Respondent. The Respondents having observed that huge sum of money was illegally removed from the Pension and Gratuity account of UBTH with the United Bank for Africa Ugbowo Branch, Benin City of which they are trustees wrote a petition to the President of the Federal Republic of Nigeria through the Head of Service and the Permanent Secretary Federal Ministry of Health complaining of how certain sum of money in the said account which was meant for a specific purpose was withdrawn by the management of UBTH led by Justice Nwazota (Rtd) who was the chairman of the Management Board at that time.
Pleadings were fully exchanged between the parties with the respondents to this appeal relying on a joint statement of defence. Thereafter the action proceeded to trial. The appellant testified and called six other witnesses while the respondents called a witness who is a staff of University of Benin Teachings Hospital who tendered some documents showing the existence of the Trust Deed and circular letter emanating from the office of the Head of service of the Federation in respect of the Trust Deed for the pensioners of UBTH. One of the respondents also testified in line with the pleadings of the respondents as shown in the joint statement of defence.
At the end of the trial, the learned trial judge after an appraisal of all issues raised in the case both at law and in fact dismissed the claims of the appellant. The Judgment of the lower court can be found at pages 71 to 98 of the records of appeal. The plaintiff being dissatisfied with the judgment appealed to this honourable court vide his notice and grounds of appeal and the said notice and grounds of appeal can be found at pages 100 – 115 of the records.
The grounds of appeal as couched by the appellant reads thus and I quote.
GROUND 1:
The decision is against the weight of evidence.
GROUND 2:
The Court misdirected itself in Law when it held:-
“Before embarking on examination of the above formulated issues, I must quickly dispose of what I consider a novel point addressed to Court by Plaintiff qua Counsel. The point made by Counsel was to the effect that the evidence proffered by 3rd Defendant must be taken as representing evidence in defence of himself only and that as the other defendants did not personally testify they were to be deemed as having led no evidence in the defence of themselves. I do not know of any such general principle of law nor has learned Counsel troubled to bring one to the attention of Court. I am therefore unimpressed and not persuaded by such submission, especially calling to mind the facts that Defendants are jointly sued and they put up a joint defence. Separate and apart from that, by the nature of the evidence led by the said 3rd Defendant, given in the presence of the others, it is clear he testified for the defence without any exception. I accordingly reject learned Counsel’s contention on the point”.
GROUND 3:
The Court misdirected itself in Law when it held:
“What the last phrase simply mean is that “all the published words complained of” as distinct from “all the published words” simpliciter as Chief Ogbodu wants me to believe must be read together. It does not mean that all the words contained in the document (those complained of and those not complained of alike) must be read together to find for defamation. I therefore do not accept learned Counsel’s contention on the point as well as his view on the case of Katto -V- CBN, Supra.
What I understand Plaintiff to mean by a combination of Second and third points is that if for example ‘A’ and ‘B’ are called thieves in one part of a document, ‘C’ who is mentioned in another part of the document in circumstances that do not amount to an infraction of his legal right can maintain on action in libel, drawing strength from what was said about ‘A’ and ‘B’. I do not accept such absurd proposition. On the 4th – 6th points which really are repetitions of each other, I must state very clearly that they do not in any way enhance the case of Plaintiff for the reason that the circumstance in which his name is mentioned in Exhibit P2 is quite different from those in which the names of others her referred to were mentioned. As a matter of fact, in the portion complained of, the name of Prof Obasohan was not in any way referred to and even reference to Justice Nwazota in the said portion does not amount to saying he had committed a criminal offence. At best, he is therein accused of having done something irregular by taking money without following due process and paying same to Plaintiff. I have serious doubt in my mind that upon the words, Justice Nwazota can himself maintain an action for defamation, lf therefore Justice Nwozota is not accused of crime by the words complained of, Plaintiff cannot be said to have been accused of criminal complicity. There is therefore no way this Court can justifiably strain outside the words used and complained of to other areas in the document where some other persons might have been accused of some wrongdoings but in which no iota of reference is made to Plaintiff s name in order to find for him in libel. The case of Annuobi – V – Nigerian National Press Ltd. Supra cited by Plaintiff qua Counsel does not aid his case. In that case, the Court found that the letter complained of contained inter alia a report which depicted Plaintiff as its author and against whom acts of subversion were alleged. The letter was found to have been forged apparently to do Plaintiff in. The Court accordingly held that it was defamatory. Similarly, in the English case of Monson,- V – Tussands Ltd. Supra, Plaintiff s picture was placed amongst those of murderers in an Exhibition. Nothing more was said and the Court held that the act of placing the picture as was done was defamatory.
The point which separates Monson’s case from the instant one is that in Monson’s case placing Plaintiff’s picture amongst those of murderers without more gave the impression that he too was a murderer. However, in the instant case, it is true that Plaintiff’s name, amongst others, is mentioned in Exhibit P2 but the different manners and circumstances, in which the names are mentioned, cannot be ignored. That is to say, in the instant case what was stated about Plaintiff in Exhibit P2 are discernable to the eyes and can therefore be read and understood but the same cannot be said of Monson’s case supra”.
GROUND 4
The Court misdirected itself in Law when it held:-
“In the circumstances of all I have so far stated, I hold that the words complained of, in their natural and ordinary meaning or by whatever innuendo that may be ascribed, are not defamatory of Plaintiff.”
GROUND 5
The Court misdirected itself in Law when it held:-
The Court misdirected itself in the Law when it held:-
“The foregoing analysis clearly point to the fact that that two words that is “Consultancy” and “professional in quite reasonable number of cons, admit of interchangeable use. Therefore, it amounts to making a mountain out of a mole-hill to cry over defendants describing the fees paid to Plaintiff as consultancy fee. Like Mr. Afolabi had contended on behalf of the defence and I agree with him, whether the fee is called Consultancy or Professional fee, it makes no difference because each takes it’s bearing from client-solicitor relationship.”
GROUND 7
“So far, it is clear from the Exhibits considered above that the payment made to Plaintiff was made in respect of the Pension money he recovered and also that he demanded a certain percentage of the amount recovered but through negotiations, he was finally paid the sum of N9,000.000.00 I do not find any difficulty in drawing the inference that the fees paid to Plaintiff was paid from the funds and this lead me to further inference that the fees was paid from the Account relating to the Pension Scheme as alleged by Defendants in Exhibit 2.”
GROUND 8
The Court misdirected itself in Law when it held:-
“Two points stand out clearly from the foregoing analysis I have made in relation to the third ground and these are that:-
(a) as alleged by the Defendants, the fees paid to Plaintiff was paid from the money recovered and the contention by Plaintiff to the contrary has a tendency to deceive. What is more, if it was Plaintiff’s position that he was not paid out of the Pensioners’ funds, he was under some obligation to produce evidence relevant to the payment to disprove the defendants’ allegation. Rather than do that he has unwittingly produced materials which completely punctured his case and strengthened that of the Defendants on the point.
(b) If the sum of N9,000,000.00 was taken from the recovered Pensioners’ funds, it leads to the logical inference that some of the Pensioners for whom the money was meant, thereby had their entitlements compromised. The Management of the Hospital that allowed such to happen cannot be said to have acted prudently. In consequence, the evidence of PW4 (Mrs. Okonkwo) to the effect that as a Pensioner she was not deprived of her entitlement as a result of the payment made to Plaintiff is not helpful to Plaintiff’s case. It may well be that she was not deprived of her own but it does not go to say that some other persons were not deprived. Be that as it may, that witness merely told the Court, in relation to others, that she was not aware that any one was denied of his entitlement. If she was not aware, it does not also follow that no one was deprived of his entitlement. The witness told the Court she was Chairperson of the Pensioners Association and not the person charged with responsibility to make payments to Pensioner.”
GROUND 9
The Court misdirected itself in Law when it held:-
“To press the point, it is the view of this Court it is a matter of logical reasoning and sound judgment that
if part of money meant to pay the entitlements of persons in a group in their individual rights is tampered with or otherwise diverted for some other purpose of purposes (as in the instant case), it follows that what is left to meet the actual purpose will not be enough to meet such purpose and for that reason, some members of the group will of necessity be left without payment. Accordingly, it is a matter of logical deduction that payment of the sum (N9,000,000 to Plaintiff from the Pension and Gratuity funds as professional fee (as he wants it to be called) or consultancy fee (as defendants have described it in Exhibit P2), meant that some of the beneficiaries thereunder were left without their benefits being realized. It is also a matter of logical inference that the realization of part of the funds for purpose of paying the Plaintiff was made possible because as shown in Exhibits D5 and D6, certain top officers of the Hospital are co-trustees. These includes the Chief Medical Director who passes as the Administrative alter-ego of the Hospital and who, as also shown in Exhibit D6, is the Chairman of the Board of Trustee and the Assistant Director, (Finance).
Given the foregoing, it is clear that I have dealt with the last two grounds, namely: (1) whether the fee paid was taken from the Pension & Gratuity Account and (2) whether or not any pensioner was deprived of his entitlement as a result of payment mode to plaintiff from the fund. In the light of the appraisal so far made, I have no difficulty in coming to a conclusion as I here do that the words complained of are not defamatory of Plaintiff, I so hold.”
GROUND 10
The court erred in Law when it held:-
“In the light of the appraisal so far made, I have no difficulty in coming to a conclusion as I here do that the words complained of are not defamatory of the Plaintiff. I so hold. Assuming without conceding that they do have such effect, to the extent that they represent the truth of what transpired, the defence of justification very well avails each of the defendants”.
GROUND 12:
The Court erred in Law in refusing to follow and be bound by the Supreme Court decision in OFFOBOCHE Vs. OGOJA LG (2001) 16 NWLR (PT 739) P.458 but rather preferred the Court of Appeal cases of N.T.A Vs. BABATOPE (1996) 4 NWLR (PT 440) and OLOGE VS. WEST AFRICAN HOLDINGS LTD (2002) FWLR (PT. 119) P. 1614, 1622 – 1623 and thereby occasion miscarriage of Justice.
GROUND 13:
The Court misdirected itself in Law when it held:-
“I accordingly distinguish the case of OFFOBOCHE V. OGOJA LG, supra from instant case. I depart from that decision but rely on two other cases -N.T.A V. BABATOPE (1996) 4 WNLR (PT.440) P.75 A and OLOGE V. WEST AFRICAN HOLDINGS LTD. (2002) FWLR PT. 119) P.1614, 1622-1623. In each of the two cases, it was held that where the defendant had a duty to report complained of to a person who had a corresponding duty to receive it, an occasion of qualified privilege is said to have arisen. On the point whether or not the addressee had a corresponding duty to receive the report of the Defendants, I recall that under cross-examination, PW.4 (MRS. OKONKWO) admitted that the Federal Government sets up a Board of Trustees for the Management of the Hospital’s Pension and Gratuity Funds. That piece of evidence is strengthened by the fact contained in both Exhs. D5 and D6 to the effect that the Presidency and the Federal Ministry of Health are both represented on the Board. I therefore find as a fact the Presidency has a representative on the Board and arising from that finding, I hold that just as the Defendants as Trustee had a duty to make the report in Exhibit P2 (as already held) so too the addressee had a duty to receive it”.
GROUND 14
The Court erred in Law by its display of absolute bias in the Judgment against the Plaintiff in favour of the Defendants in clear breach of its role as an impartial and independent arbiter and thereby completely violated the plaintiff’s right to fair hearing as guaranteed under S.36(1) of the 1999 Constitution of the Federal Republic of Nigeria.
In this court parties filed briefs of argument. When the case came up for hearing Mr. Ogbodu who is the appellant appeared in person. He identified his brief of argument dated 10/10/08 deemed properly filed on 15/4/10. He adopted and relied on same and he urged the court to allow the appeal. Mr. Layi Afolabi leading other counsel for the Respondent identified his brief dated 21/6/10 deemed filed on 9/11/10. He adopted same and relied on it as his argument that the appeal be dismissed. The appellant raised 3 issues for determination.
Issue for determination
The Appellant submits, most humbly that from the ground of Appeal, the following issues for determination in this Appeal, are as hereunder quoted:
1. Whether from all available evidence before the court, the learned trial judge was right in holding that the Appellant has failed to establish a case of libel against the Respondent? (Grounds 1, 3, 4)
2. Whether from evidence, the learned trial judge was right when he held that the 3rd Defendant testified for the defence without any exception?
(Ground 2)
3. Whether the learned trial judge was right in holding that the defences of justification and qualified privilege was available to the respondents having regard to the pleadings of the parties and the evidence adduced before the trial court?
(Grounds 5, 6, 7, 8, 9, 10, 11, 12 and 13)
On the other hand the Respondent is of the view that one issue will determine the appeal that is –
“Having regards to the pleading of the parties coupled with the oral and documentary evidence available before the lower court, whether the findings of the trial court that the word complained of are not defamatory of the appellant is not justified”
Let me observe here that I am not comfortable with the grounds of appeal as drafted by the appellant. A ground of appeal must not be vague or general in terms.
A ground which is vague or general in terms is not permissible. Vagueness of a ground may arise as it is in this instant case couched in a manner that deem not provide any explicit standard for its being understood or when what is stated is so uncertain that it is susceptible to be misunderstood such grounds of appeal leaves the judge to speculate.
A ground of Appeal which stated thus –
“the learned trial Judge failed (1) to direct his merit to the lack of evidence to support vital averment in the plaintiff pleading”.
was held to be vague, general in terms and to disclose no reasonable appeal. The court frowns on grounds of appeal and their particulars which are couched in such a manner that is merely argumentative.
A ground of appeal is required to set forth concisely not supposed to be argumentative. As shown above the appellant distilled 3 issues from 13 grounds of appeal leaving ground 14.
Ground 14 is deemed abandoned and it is hereby struck out. The main contention in the lower court is based on the complaint that the particular portion of a petition to the head of State contained in Exhibit P2. The relevant part as relating to the appellant reads as follows:-
“Nwozota also authorized the payment of the sum of N9,000.000.00 (Nine Million Naira to H.O Ogbodu Esq. as Consultancy Fee with voucher Number 2441852 from the Pension and Gratuity Account with the United Bank for Africa (UBA) Ugbowo Branch, Benin City. This money was taken from the payment mode by the Nigerian Insurance Company UBTH for payment Pensioners thereby depriving these Senior Citizen of their entitlements as at when due”.
The above quoted words were the issues tried by the trial court which found against the appellant.
Notwithstanding the numbers of ground of appeal I believed one issue will suffice to determine this appeal. That is – Having regard to the pleadings of the parties coupled with the oral and documentary evidence available before the lower court the trial Judge was right to hold that the words complained of are not defamatory is justified”
In his brief the appellant argued that this court correcting the errors of law and conclusion of the lower court is entitled to correct all errors made by the trial Judge citing the case of DINBO VS. CHIEF S. IDUGBOE (1983) 2 SC 14 AT 52 – 53. It also that either standing alone or taken in connection with other circumstance is reasonably capable of a libel. He argued that the words shown construe the words according to their form and natural meaning which will be given them by reasonable persons of ordinary intelligence. He cited the case of DUMBO Vs IDIAGHE supra
He also argued that word should be considered in what the conclusion could reasonably be drawn from there. He then argued that the words meant that because he was paid N9,000,000.00 as consultancy fee from Pension and Gratuity Account of UBTH to appellant, pensioner who are senior citizens were deprived their entitlement. He said what the learned trial Judge ought to have determined is whether or not it is true that the appellant was paid some money but whether the fact of payment led to deprivation of senior citizens of the payment of their pension allowances. He argued that the words complained of taken in connection with other circumstance is reasonably capable of a libelous construction.
He said the lower court refused to read exhibit P2 as a whole when it relied on KATTO Vs CBN (1999) 6 NWLR (PT. 102) 370, 480. He said the trial Judge misconceived the case.
He argued that the learned trial Judge failed to appraise the fact that in libel cases it is the bad impression conveyed by the libel that has to be considered and not the meaning of each word LAWS Vs DAILY TELEGRAPH (1904) AC 234.
He further argued that the trial Judge failed to consider the fact that –
(1) In libel matters the document must be read as a whole and that includes the headline and comments.
(2) To associate the name of someone with criminal matters and infamous character is libelous.
He argued that the Judge was wrong to have decided on justification. He said no justification is relied upon as a defence. The implication is that defamation has been admitted Refer to IRALHI Vs AINA
He then argued on the question whether the trial Judge was right in holding that defence of justification is available to the defence.
He further argued that malice in law destroy privilege whether absolute or qualified
Refer to the case of – ALL AFRICAN NEWSPAPERS VS. COTEAN (1973) ALL NLR (Reprint 479).
(Reprint 479.
In conclusion he urged this court to allow the appeal and set aside the Judgment of the lower court.
The Respondent on the other hand argued vehemently that the lower court was right when he held that the words complained of in their ordinary and natural meaning is not defamatory. He argued that it is the duty of the Judge as a matter of law to construe them according to their fair and natural meaning which will be given by reasonable persons of the ordinary intelligence.
He cited the case of
CAPITAL AND COUNSELLORS BANK VS. HENRY (1881 – 82) LR 7 AC 741
JONES VS. SICELTON 1963 3 ALL ER 952.
OKOLO VS. MIDWEST NEWSPAPER CORPORATION & 3 ORS. (1977) 1 SC 38
OKAFOR VS IKEANJU & 3 ORS (1979) 314 SC
He argued that the trial Judge before considering the evidence led by the parties stated the correct position of the law in relation to libel at Page 79 – 80 of the Record.
He further argued that the court applied the objective as distinct from subjective Test before arriving at the conclusion. He referred to line 24 at Page 87 – 88 of the record where the findings fully considered the evidence of the appellants witness especially PW2. He submitted that there is no way an ordinary man would infer corruption or fraud because a certain amount was paid to the appellant.
The court finds that the appellant was indeed paid the money which was contained in the petition. He argued that the lower court read the publication as a whole before arriving at its conclusion.
He further argued that justification was pleaded and evidence on it is on record. Refer to paragraph 8, 9, 10, and 11 Page 21 of the Record.
The Respondent commended the case of OSAYANDE VS. ETUK (2008) 11 NWLR (PART 1068) 211 AT 25. That members of the public have a duty to complain of another to the police and the police have a duty to receive the information legal or moral- PULLMAN VS. HILL & CO. LTD. (1891) 1 QBD 524.
He concluded that the evidence of the 3rd defendant/Respondent on the following parties was not challenged.
(1) That the payment was made by the management of University of Benin Teaching Hospital was irregular.
(2) That the only body authorized to administer the fund is the Board of Trustee of University Teaching Hospital which did not authorize the payment.
(3) That it was taken from the Pension Account with UBA Ugbowo Branch. He then urged the court to dismiss the appeal.
The test to establish defamatory meaning is that the words should be given the natural and ordinary meaning that would be conveyed to the reasonable reader who is presumed not to be naive but capable of reading between the line and not to be unduly suspicious so that he will choose a defamatory meaning over a non defamatory meaning. See the case of:
SKUSE VS. GRANADA TELEVISION LTD. (1996) EMLR 278
AYENI VS. ADESINA VS. ADESINA (2007) ALL FWLR (PT.370) 1451
Words also are said to be defamatory if in their ordinary meaning they render the person about whom they are spoken of odium, shame and disgrace. Therefore a plaintiff in an action for defamation has the onus of proving six ingredient as follows:
(1) Publication of the offending words
(2) That the words are defamatory of the defamation claimant
(3) That the words complained of refer to the claimant
(4) That the word were published to third parties
(5) Falsity or lack of accuracy of the words complained of and
(6) That there are no justifiable legal ground for the publication of the words
See: ILOABACHIE VS. ILOABACHIE (2005) 13 NWLR PT. 943, 695 SC
GUARDIAN NEWSPAPER LTD V. AJEH (2005) 12 NWLR (PT. 938) 205
N.A.C.B LTD VS ADEAGBO (2004) 13 NWLR (PT.894) 551
In the case of P.G.S.S. IKACHI VS. IGBUDU (2005) 12 NWLR (PT.940) 513 and UMAGBA VS. OGBE (1196) 8 NWLR (PT. 468) 621-
This court held the view that it is the duty of everyone who knows or reasonably believes that a crime has been committed to assist in the discovery of the wrong doer.
Any complaint made or information given for that purpose to those interested in investigating the matter will be in the interest of society be privileged and the mere fact that the defendant volunteered the information will make no difference.
In RULLMON VS. HILL LTD. (1891) 1 QB LORD ESHER MR. SAW
“An occasion is privileged when the person who makes the documentation has a moral duty to make it to the person to whom he does make it and the person who receives it has an interest in hearing it when this condition is present the occasion is privileged “.
It is the argument of the appellant that this respondent did not plead justification or privilege I disagree with the submission and even if am wrong the determination by the trial Judge that the words are not defamatory conclude the matter. The tort of libel or defamation whether slander related essentially to damage the character of the person.
It was held in the case of PUNCH NIG. LTD VS EJITERE (2001) 17 NWLR (PT.74) 1228.
That words are not defamatory however much they may damage a man in the eyes of a sector of the community unless they also amount to disparagement of his reputation in the eyes of right thinking men generally, to write or say of a man something that will disparage him in the eyes of a particular section of the community but will not affect his reputation in the eyes of the average thinking man is not actionable in the law of defamation.The appellant has called upon this court to upturn the Judgment of the trial court.
The Law is that an appellate court will not ordinarily interfere with the findings of the trial court except in circumstance such as where the trial court has not made proper use of the opportunity of seeing and hearing the parties at the trial or where it has drawn wrong conclusion from accepted credible evidence or the conclusion is perverse or unsupported by the evidence
See: OKPIRI VS. JONATHAN (1961) 1 SC NLF 174
IKE VS. UGBOAJA & GUCHI (19935) NWLR (PT. 301) 539 applied in MAMMAN VS. SALAUDEEN (2005) 10. 12 SC 45.
“In an action for defamation, it is the court that decides in the end whether the words complained of are defamatory. In determining whether the words are defamatory or not, the first steps to be taken by the trial judge is to consider the meaning the words would convey to the ordinary person. Having ascertained that, the next steps is to consider the circumstances in which the words were published and determine whether in those circumstances, a reasonable person would be likely to understand them in a defamatory sense.
– Ayeni V. Adesina (2007) ALL FWLR (PT.370) 1451 CA
– Okafor V. Ifeanyi (2007) 12 NSCC 43.From the consideration of the fact on record and the authorities held that the Judgment of the lower court is not perverse and from all consideration including the defence of justification there is no miscarriage of Justice by the trial Judge.
I agree with him that the words spoken of the appellant are not defamation when viewed from the eyes of a reasonable man.
In the final analysis the appeal fails and ought to be dismissed with cost.
I dismiss same and I award N20,000.00 costs to Respondent.
RAPHAEL CHIKWE AGBO, J.C.A.: I have been privileged to read in advance the judgment written and delivered by my learned brother Shoremi, JCA and I agree completely with his reasoning and conclusions.
The appellant acted as a solicitor to the university of Benin Teaching Hospital. He forwarded his bill and was paid by the hospital management. Nobody challenged his right to that fee. What the respondents took umbrage about in their letter was the SOURCE of the money with which the management of the hospital paid the appellant. That was internal to the hospital. It was never the case that the offending letter alleged or insinuated that the appellant manipulated or coerced the hospital management into paying the appellant from the pension funds. There is no basis for interference with the judgment of the trial court as by no stretch of imagination can it be inferred that the offending letter defamed the appellant.
I too dismiss this appeal and abide by all the consequential orders contained in the lead judgment including the order as to costs.
Appearances
H.O. Ogbodu,
E.O. Afolabi,
Mr. W. AdunFor Appellant
AND
MRS. J.O. Otokiti and
Mrs. A.I. TsactoFor Respondent
