CHIEF GARDEN GBENEYEI v. MR. AUSTIN LOGBOWEI & ORS
(2019)LCN/12557(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of January, 2019
CA/B/409/2013
RATIO
TORT LAW: PUBLICATION OF A LIBELLOUS MATTER
“The law is settled that the onus is on the plaintiff to prove publication of a libellous matter concerning him and where he fails to do so, he is deemed to have no cause of action against a defendant. See ONU VS. AGBESE (1985) 1 NWLR (PT. 4) 704. In other words, the fundamental part of the cause of action in libel is not just the writing but the publication of the libellous statement. See NSIRIM VS. NSIRIM (1990) 3 NWLR (PT. 138) 285 and SALAWU VS. MAKINDE (2002) LPELR 12318 (CA), wherein it was also held that publication in libel matters means the making known of the defamatory statement to some persons other than the persons to who it was written. See also OMO-AGEGE VS. OGHOJAFOR (2011) 3 NWLR (PT. 1234) 341, where this Court held at page 356 of the report that:
?Publication in libel cases bears a special technical meaning and it means the making known of a defamatory matter to some persons other than the person of whom it is written. There is no doubt that publication of an alleged defamatory material is at the heart of an action for libel. In order to succeed, the plaintiff must prove that the libellous material has been published same having been communicated to some persons other than the plaintiff himself.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
CHIEF GARDEN GBENEYEI Appellant(s)
AND
1. MR. AUSTIN LOGBOWEI
2. MR. A.O. TAIWO
3. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Delta State sitting in Effurun Judicial Division and delivered on the 31st day of October, 2008 wherein the plaintiff?s (now Appellant) claim for libel and malicious prosecution was dismissed.
The summary of the facts as can be gleaned from the plaintiff’s (now Appellant) claim is that he is a chief in Okia community in Burutu Local Government Area of Delta State. The members of the said Okia community were at a time dissatisfied with the award of surveillance and security contract to the 1st Respondent who is from a neighbouring Ageh community because there was already a mutual understanding between the Okia Community and the 3rd Respondent that such ?non-technical contracts’ should be awarded to the host community. With the continued grievance, particularly between the Appellant and the 1st Respondent, the Appellant on behalf of Okia community wrote a letter to the 3rd Respondent to revoke the contract between it and the 1st Respondent within a specified period.
Before the expiration of the ultimatum news came that the 3rd Respondent?s flow station was shot down. The 2nd Respondent who was in charge of the 3rd Respondent’s security, wrote a letter to the police accusing the Appellant of being responsible for the shut down and this led to his arrest and detention for three weeks. However, at a subsequent parliamentary meeting, it was revealed that the 1st Respondent was responsible for the shutdown of the pipeline in order to deal with the Appellant.
Incensed by his arrest and detention based on the said letter to the police by the 2nd Respondent, the Appellant commenced an action in the lower Court and by his 2nd amended statement of claim filed on 20/6/2008, he claimed against the defendants (now Respondents) as follows:
1. The sum of N200,000,000.00 (Two Hundred Million Naira) as damages for the libel contained in the 2nd and 3rd defendants letter ref: No. AV.2034/PRW-SHY/53A/VOL.1/62, titled: RE: LETTER OF PROTEST AND SHUT DOWN OF SPDC FACILITY AT AGEH dated 19th November, 2001 and addressed to the D.P.O at Nigeria Police Divisional Headquarters, Ekpan.
2. The sum of N200,000,000.00 (Two Hundred Million Naira) being general damages against the defendants for inducing unlawful arrest, false imprisonment or detention and humiliation of the plaintiff.
3. Perpetual injunction restraining the defendants, their servants, agents, privies or otherwise howsoever called from further writing, circulating or publishing of the plaintiff the said letter or any similar libel.
4. AN ORDER of this honourable Court directing the 2nd and 3rd defendants to publish in any National Newspaper an apology/advertisement exonerating the plaintiff from the allegation of economic sabotage they levelled against him.
At the trial, the Appellant testified and called two other witnesses. The 2nd and 3rd Respondents in their defence called one witness and tendered some documents.
Judgment was subsequently delivered on 31/10/2008 wherein the Appellant’s claim was dismissed.
Dissatisfied with the said judgment, the Appellant filed notice of Appeal dated 20/5/13 pursuant to the leave of this Court granted on 7/5/2013.
The Appellant’s brief of argument was filed on 25/11/2013 while the 3rd Respondent’s brief was filed on 17/4/2014. The 1st and 2nd Respondents did not file any brief of argument. At the hearing of the appeal on 15/11/2018, the Appellant?s brief was duly adopted and relied on while the 3rd Respondent’s brief was deemed argued pursuant to Order 19 Rule 9 of the Rules of this Court 2016.
In the Appellant’s brief of argument, the following three issues were distilled for determination.
(1) Whether from the evidence before the Court, the plaintiff has not proved publication of the offensive material, Exhibit B?
(2) Whether the defence of qualified privilege can avail the defendants where malice has been established?
(3) Whether the Appellant is not entitled to damages in view of the evidence before the Court.?
The 3rd Respondent on the other hand formulated the following two issues for determination.
(1) Whether the complaint made to the police upon which the police acted formed the basis for a claim for libel?
(2) Whether there was publication of Exhibit ?B? to a third party
I will adopt the three issues as formulated in the Appellant?s brief of argument in the resolution of this appeal.
ISSUE 1
Herein, learned counsel for the Appellant referred to Exhibit B (the letter allegedly written by the 2nd Respondent to the police) to argue that it’s meaning and intention is not in dispute given the available evidence that the Appellant was arrested and detained for a period of over three weeks, as well as the evidence of PW2 as per the angry reaction of the community to the content of Exhibit B.
On whether there was publication of the said letter Exhibit ?B?, learned counsel submitted that once a defamatory material is handed out to a third party or any other person apart from the party defamed, it amounts to publication and the author is liable for libel unless there is a good defence. The following cases were cited in support. ZABUSKY VS. ISRAELI AIRCRAFT INDUSTRIES (2007) All FWLR (PT. 352) 1759; GUARDIAN NEWSPAPERS LTD. VS. AJEH (2011) All FWLR (PT. 504) 1 AT 13; NSIRIM VS NSIRIM (1990) 3 NWLR (PT. 138) 285.
Learned counsel further submitted that there was evidence before the trial Court that the 2nd Respondent who was an employee of the 3rd Respondent wrote (Exhibit B) a letter to the Divisional Police Officer, Ekpan Police Division and this constitutes publication but the learned trial Judge reasoned to the contrary because the 2nd Respondent is a police officer who wrote Exhibit B to another police officer within the police force.
He therefore contended that the said Exhibit B having been written on the 3rd Respondent’s letter headed paper to the police, it ceases to be an internal memo, but a publication of the offensive material to a third party.
Added to that is the evidence of PW2 who is not a member of the police force but was shown the letter by the police when they went to the police station to secure the release of the Appellant from police custody.
He added that the 2nd Respondent having set the chain of publication in motion by writing Exhibit B, he is liable as the publisher even though he did not intend others to see the letter. He referred to the following cases. FASAYE VS. BAJULAIYE (2003) 41 WRN 33; UGO VS. OKAFOR (1996) 3 NWLR (PT. 438) 542; DIN VS. A.N.N LTD (1990) 3 NWLR (PT. 139) 392; OGUNBADEJO VS. OWOYEMI (1993) NWLR (PT. 271) 517.
ISSUE 2
Dwelling on this issue, learned counsel for the Appellant submitted that a defence of qualified privilege cannot avail the Respondents because the Appellant had proved by evidence that there was malice showing that prior to the writing of Exhibit B, there had been existing conflict between the Appellant and the Respondents as a result of the surveillance contract as shown in Exhibits ‘C’, ‘D’, ‘E’ and ‘F’.
On this, learned counsel referred to the following cases. UBA PLC VS. DAVIES (2011) All FWLR (PT. 576) 547; MAMMAN VS. SALAUDEEN (2006) 3 MJSC 160; MAKINDE VS. OMAGHOMI (2011) All FWLR (PT. 578) 989; INDEPENDENT NEWSPAPER LTD VS. IDIONG (2012) ALL FWLR (PT. 647) 682.
ISSUE 3
Herein, learned counsel submitted that since the publication of Exhibit B was not by the Respondents and the defence of qualified privilege does not avail them, the Appellant is therefore entitled to damages for defamation of character as held in MAKINDE VS OMAGHOMI (2011) All FWLR (PT. 578) 989 AT 1002; ALAWIYE VS. OGUNSANYA (2003) 39 WRN 140 and OMEGA BANK PLC VS. GOVERNMENT OF EKITI STATE (2007) All FWLR (PT. 386) 658.
It was also submitted that by virtue of Section 15 of the Court of Appeal Act 2004, this Court has the power to award damages where appropriate.
On the factors to be considered in assessing damages, he referred to the case of GUARDIAN NEWSPAPERS LTD VS. AJEH, supra at page 26 and OFFOBOCHE VS. OGOJA LOCAL GOVERNMENT (2007) FWLR (PT. 68) 1051; OFOEGBU VS. ONWUKA (2008) All FWLR (PT. 412) 1441.
It was then urged on this Court to allow the appeal.
Replying as per their issue 1, learned counsel for the 3rd Respondent submitted inter alia that to succeed in an action for libel, the onus is on the Appellant to prove relevant factors as enumerated by the Supreme Court in the case of SKETCH VS. AJAGBEMOKEFERI (1989) 1 NWLR (PT. 100) 678 AT 704.
Referring to Exhibit B, learned counsel submitted that, before it was written by the 2nd Respondent to the police, the Appellant had also written Exhibit F and addressed to the 3rd Respondent wherein he gave the 3rd Respondent 14 days ultimatum to revoke the pipeline surveillance contract awarded to the 1st Respondent and re-award same to him, and which Exhibit was tendered in evidence by the 3rd Respondent.
He added 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 as held in the case of PGSS IKACHI VS. IGBUDU (2005) 12 NWLR (PT. 940) 543, therefore Exhibit B was written by the 2nd Respondent on behalf of the 3rd Respondent based on the receipt of Exhibit ‘F’ from the Appellant.
Learned counsel also submitted that the Appellant did not prove malice against the Respondents as there was no evidence before the trial Court to show that the 3rd Respondent took further steps after Exhibit B was written. Moreso that the Appellant did not file a reply showing particulars of any malice, hence the learned trial Judge concluded as he did at page 130 of the record.
On when a publication would be held to be privileged, learned counsel referred to the following authorities. UMAGBA VS. OGBE (1996) 8 NWLR (PT. 468) 621; ILOABACHIE VS. ILOABACHIE (2005) 13 NWLR (PT. 943) 695) AT 713; ONYEJIKE VS. ANYASOR (1992) 1 NWLR (PT. 218) 437 AT 456.
Also relying on the case of BAKARE VS. IBRAHIM (1973) All NLR (VOL. 1) 653, it was submitted that the Appellant failed to show malice on the part of the 3rd Respondent.
On issue 3, that is whether there was publication of Exhibit B to a third party, learned counsel for the 3rd Respondent submitted that in order to succeed in an action for libel, the Appellant must prove six ingredients as enumerated in the case of OGBODU VS. S.S.A.U.S.T.H.R.I.A.I (2013) 3 NWLR (PT. 1341) 261.
He contended that in the instant case, the Appellant failed to prove publication of Exhibit B to third parties and particularly the name of the person to whom the libellous document was delivered as held in the case of NSIRIM VS. NSIRIM (1990) 3 NWLR (PT. 138) 285) and BALOGUN VS. OGUNLEWE (2000) 1 NWLR (PT. 640) 221; OTOP VS. EKONG (2006) 9 NWLR (PT. 986) 533 AT 554; ROYAL DUTCH AIRLINES VS. TAHER (2014) 2 NWLR (PT. 1393) 137.
This Court was then urged to resolve the two issues against the Appellant and dismiss the appeal.
Now, on issue (1) as raised by the Appellant and consistent with 3rd Respondent’s issue No. 2, that is whether from the evidence before the trial Court, the Appellant proved publication of Exhibit ‘B’.
The law is settled that the onus is on the plaintiff to prove publication of a libellous matter concerning him and where he fails to do so, he is deemed to have no cause of action against a defendant. See ONU VS. AGBESE (1985) 1 NWLR (PT. 4) 704. In other words, the fundamental part of the cause of action in libel is not just the writing but the publication of the libellous statement. See NSIRIM VS. NSIRIM (1990) 3 NWLR (PT. 138) 285 and SALAWU VS. MAKINDE (2002) LPELR 12318 (CA), wherein it was also held that publication in libel matters means the making known of the defamatory statement to some persons other than the persons to who it was written. See also OMO-AGEGE VS. OGHOJAFOR (2011) 3 NWLR (PT. 1234) 341, where this Court held at page 356 of the report that:
?Publication in libel cases bears a special technical meaning and it means the making known of a defamatory matter to some persons other than the person of whom it is written. There is no doubt that publication of an alleged defamatory material is at the heart of an action for libel. In order to succeed, the plaintiff must prove that the libellous material has been published same having been communicated to some persons other than the plaintiff himself.
It is also a requirement of the law that the third party must not only be named but must also be clearly identifiable and identified. See GIWA VS. AJAYI (1993) 5 NWLR (PT. 294) 423.
In the instant case, the Appellant?s contention is that the 2nd Respondent who is in the employment of the 3rd Respondent wrote Exhibit ?B? to the Divisional Police Officer (DPO) of Ekpan Division and which Exhibit ?B? was written in the 3rd Respondent?s letter headed paper. This he says, constitutes publication. Also that PW2 also gave evidence to the effect that himself and the two other chiefs who went to the police station to negotiate for the release of the Appellant where shown Exhibit ?B? by the police as forming the basis for the arrest and detention of the Appellant and this amounts to publication to a third party.
The 3rd Respondent on the other hand was of the stance that there is no proof of publication to a third party because the name of the person to whom delivery of the libellous document was made was not pleaded, neither was the name or particulars of the police officer who was alleged to have shown the letter to PW2 and others was not pleaded or given in evidence.
Now from the evidence on record and with particular reference to Exhibit B there is no doubt that the 2nd Respondent who is the author of same is a senior police officer hence he signed the letter as:
The Commanding Officer
The Nigeria Police Force
(SPDC)
Shell Police Command
Ogumu-Warri
Delta State
Therefore, contrary to the Appellant?s claim that he is an employee of the 3rd Respondent, the 2nd Respondent is a senior police officer in charge of the Shell Police Command in Warri overseeing the security demands of the 3rd Respondent. Hence in his evidence in chief, the DW1 testified thus:
‘I am a police officer attached to the SPDC. My force No. is 50264. I am an Assistant Superintendent of Police (ASP). I am a crime officer in Shell police. My duties are to investigate cases, vetting of case files and handling of letters between shell police command and the regular police stations. I know the 2nd Defendant. He was my commanding officer and I worked directly under him.’
The said Exhibit ‘B’ was said to have been necessitated by Exhibit ‘F’ which is a letter written by the Appellant to the 3rd Respondent requesting it to cancel the surveillance contract it awarded to the 1st Respondent and to re-award same to him (the Appellant) and two weeks ultimatum was given for the 3rd Respondent to do so. Sequel to the said Exhibit ‘F’, the 3rd Respondent’s oil pipeline within the Appellant’s community was shut down. This prompted the 2nd Respondent who was the commanding officer in charge of the shell police command to write Exhibit ‘B’ to the Divisional Police Officer in charge of Ekpan police station under whose jurisdiction the 3rd Respondent is located to investigate the matter.
The learned trial Judge, in this regard made the following findings at page 129 of the record.
‘In this case, Exhibit B is a letter written by the Nigeria Police (Shell) to the Divisional Police Officer Nigeria Police, Ekpan. The letter is not copied to any other person (human or corporate). The 2nd Defendant is a Police Officer writing to another Police Officer within the same Police Force. I take the Nigeria Police Force whether in Shell or at Ekpan as one, this makes it difficult to establish that there was indeed a publication according to law.’
As much as it may be proper to endorse the above findings of the learned trial Judge on the premise that the 2nd Respondent and the Divisional police Officer are working hand in hand for the prevention, detection and investigation of crimes and having regard to the nature of the content of Exhibit ‘F’ written by the Appellant, it will not be out of place to hold that there is no publication as between the two police officers aforementioned.
However, the learned trial Judge seemed to have ignored the aspect of the publication by the police to the PW2 and two other chiefs when they went to the police station to negotiate the release of the Appellant from police custody. The evidence of PW2 to the effect that Exhibit ?B? was shown to them by the police was not discredited or contradicted. At page 104 of the record the PW2 Barda Benson stated thus:
‘When we learnt of the arrest of the plaintiff at the Nigeria Police Station Ekpan, the community delegated three persons including myself to the police station.’
We pleaded for his release on bail, but the police refused insisting that the offence for which he is held is serious one as he led others to shut down SPDC facility. The police showed us a letter written by the 2nd Defendant on behalf of the 3rd Defendant. If I see the letter that I was shown I can identify it. This is the letter Exhibit ‘B’ is identified. When we got back, we reported our findings to community. The community was angry and threatened to withdraw the chieftaincy title. After six days, he was released from custody.
The facts relevant to the above set out evidence was pleaded in paragraph 10 of the 2nd Amended Statement of Claim at page 93 of the record and given that there is no evidence to the contrary, I am of the humble view that the act of showing the PW2 Barda Benson and his two other colleagues Exhibit B at the police station constitutes publication within the meaning of the law.
This issue is therefore resolved in favour of the Appellant.
On issue 2, that is, whether the defence of qualified privilege can avail the defendants where malice has been established.
For the Appellant, the contention is that the defence of qualified privilege cannot avail the Respondents because there is evidence before the trial Court that there was malice in writing Exhibit B with the aim of silencing the Appellant who was agitating against the award of surveillance contract to the 1st Respondent to the detriment of the Appellant and his community.
For the 3rd Respondent, however, Exhibit B was borne out of a public duty to avert crime and criminal activities as implied in Exhibit ‘F’ written by the Appellant to the 3rd Respondent with a two week ultimatum and the Appellant did not prove malice against the 3rd Respondent as to negative the plea of qualified privilege.
Now qualified privilege is occasioned when the person who authored the libellous material has a moral duty to write it to the person to whom he does write it and the person who receives it has an interest in hearing it. Both conditions must exist in order to establish a privileged publication. See ILOABACHIE VS. ILOABACHIE (2005) 13 NWLR (PT. 943) 695; OJEME VS. MOMODU (1994) 1 NWLR (PT. 323) 685); CITIBANK NIGERIA LTD VS. IKEDIASHI (2014) LPELR 22447 (CA).
In the recent case of MAINSTREET BANK LTD VS BINNA (2016) 12 NWLR (PT. 1526) 316 AT 343, the Supreme Court in analysing what amounts to privileged occasion in relation to plea of qualified privileged and when the plea will avail a defendant held as follows:
‘It is settled law that an occasion of qualified privilege is one in which the maker of a publication has an interest or duty, whether legal, social or moral, to make the publication to a person who has a corresponding interest or duty to receive the publication. It is the existence of such interest or duty that destroys the inference that the maker of the publication was actuated by malice and, which the law usually makes in areas of defamation, and allows for the occasion to be privileged, except where there is evidence of actual or express malice.’ See also OJEME VS. MOMODU (supra).
At page 340 their Lordship also held that:
‘The position of the law is that once the plea of qualified privilege is made out, the inference of malice is rebutted and the burden is thrown upon the plaintiff to show and prove ‘express malice’ against the defendants. To discharge this onus, the plaintiff must deliver a reply alleging express malice and give particulars of the facts from which such malice is inferred.’
In relying on the defence of qualified privilege, the 3rd Respondent averred in paragraphs 8, 11, 12, 13 and 14 of the statement of defence as follows:
8. Further to paragraph 7 of this statement of defence, the defendant further avers as follows:
(a) That the said plaintiff had on the 5/10/2001 written a personal letter to the defendant in which he solicited for the surveillance contract for himself and as a nominee of his community.
(b) That the plaintiff by another letter dated the 14/11/2001 to the defendant gave the defendant an ultimatum of two weeks to withdraw the surveillance contract awarded to the 1st defendant by the defendant. The letter was signed by the plaintiff. The defendant shall at the trial rely on these two letters.
11. Further to paragraph 8 of this statement of defence the defendant received a letter dated 26/02/2002 and headed Shell’s Alleged Plot to Eliminate Chief Garden Gbeneyei from the plaintiff. Defendant replied the said letter by a letter dated 8/03/2002 reference PPW/02.2002.007. The defendant shall rely on the said letter at the trial. Notice is hereby given to the plaintiff to produce the said letter at the trial.
12. The defendant shall at the trial contend that the defendant’s oil facilities were shut down by some intruders and the defendant in order to protect herself and her facilities (properties) from further intrusion and serious damages reported the matter to the Nigeria Police Ekpan Effurun through its Shell Police Command.
13. The defendant shall at the trial contend that it did not at any time conspire with anybody to eliminate the plaintiff or at all.
14. The defendant shall at the trial contend that it had qualified right or privilege to report the said unlawful closure/shut down of its facilities and the unlawful intrusion into its properties to the Nigeria Police.
From the above set out averments and the evidence on record, it is not in dispute that the making of Exhibit ?B? was necessitated by Exhibit ‘F’ and the subsequent shutting down of the 3rd Respondent’s oil facilities within the period of the ultimatum given in Exhibit ‘F’.
For the purposes of clarity, the contents of the two documents, Exhibit ‘F’ and ‘B’ are hereinbelow set out:
Exhibit F
Sir,
LETTER OF PROTEST
Sequel to the letter written to you titled: revocation of ALPHA-AMICUS NIGERIA LIMITED SURVEILLANCE CONTRACT date 5th October, 2001, the entire people of Okia Community are protesting for their indigenous right. Since the commencement of your operation, S.P.D.C has failed to recognize the Okia Community in which this Trans Ramus pipeline is situated and as such you have disregarded the rightful owners of the land. Having watched your silence over this issue for a long time now, your constant indifference over this has infuriated the entire Community.
The following enumerated factors need to be redressed:-
1. Ever since when the surveillance contract was awarded there have never been mutual dealing between S.P.D.C. and the Community or the contractor. We consider it as an act of oppression.
2. The Community did not present the contractor.
3. The contractor is a non-indigene of Okia Community.
4. There was no consultation with the people of Okia Community as regard employment whereas pipeline security was suppose to be from the village (Okia). With the above factors, it is the irreversible decision of the entire Community that we order the immediate withdrawal of the contract from Alpha-Amicus Nig. Ltd. we give you an ultimatum of two weeks from the date (15/11/2001) of receiving this letter.
For the avoidance of any problem, we advice that this letter should be given serious attention to expedite action in other not to exceed the ultimatum day.
Thanks for your anticipated cooperation.
Signed
Exhibit B
The Commanding Officer
The Nigeria Police Force
(SPDC)
Shell Police Command
Ogunu-Warri
Delta State
Dated 19th November, 2001
The DPO
The Nigeria Police
Divisional Headquarters
Ekpan.
RE: LETTER OF PROTEST AND SHUT DOWN OF SPDC FACILITY AT AGEH
‘On Saturday 17th November, 2001, SPDC?s Facility was allegedly shut down by Okia Community led by one Chief Gordon Gbeneyei who was also alleged to have written the attached letter.
As a result of his group’s action, the Federal Government of Nigeria now lose about 150,000 barrels of crude oil per day, a serious act of economic sabotage.
You are kindly requested to investigate this matter urgently to enable restoration of production and bring the culprits to justice, please.
Signed
A.O. TAIWO ASP
Commanding Officer
Shell Police
Command-Warri.’
From the contents of Exhibits ‘F’ and ‘B’ as above set out, it is not in doubt and I agree with the submission of learned counsel for the 3rd Respondent that Exhibit B was written by the 2nd Respondent who was the chief security officer in charge of the Shell Police Command, in response to the threat contained in Exhibit F and the subsequent shut down of the 3rd Respondent’s oil facility in the area.
In justifying the Respondent’s defence of qualified privilege the learned trial Judge held at page 130 of the record as follows:
‘This brings me to the next point that is qualified privilege which was canvassed by both Defence Counsel.
InILOABACHIE VS ILOABACHIE (SUPRA) page 232 the Supreme Court stated on qualified privilege thus:
‘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. Both these condition must exist in order that the occasion may be privileged.’
In my humble view, both conditions exist in this case for the defence of qualified privilege to be invoked. Clearly the Nigeria Police Force has an interest in hearing and receiving a case of a broken oil pipeline, moreso as an ultimatum and threat have been issued with regard to the pipelines. This defence therefore avails the 2nd Defendant and by extension the 3rd Defendant.
I indeed, endorse the above set out holding of the trial Court and in furtherance of same I rely on the case of UMAGBA VS. OGBE (1996) 8 NWLR (PT. 468) 621 AT 626 – 627 also referred to by the 3rd Respondent. Therein this Court per Oguntade JCA (as he then was) held inter alia that:
‘Statements are privileged if made bona fide in the prosecution of an inquiry into a suspected crime and for the purpose of detecting and bringing to punishment the criminals or of recovering stolen goods.’
Thus a person who suspects and has a reason to suspect another of a particular theft may with a view to enquiry task that individual with the theft and although the suspicion turns out to be erroneous, the law gives no redress to the party accused. If the Defendant continue to propagate the story to strangers, that would furnish evidence of malice, but if he could not lawfully charge the person suspected on reasonable grounds though innocently, of having committed theft, it would be quite impossible for a man who is robbed to inquire with any safety after the stolen goods.
In the instant case, the 2nd Respondent took the path of caution and safeguard to forestall further damage to oil pipeline facilities for which he is duty bound to protect as the officer in charge of the Shell Police command hence he made Exhibit B. There is no evidence that any of the Respondents thereafter took any further action to facilitate the publication of the said Exhibit B to any stranger.
The Appellant had also strongly contended that the making of Exhibit B was borne out of malice in which case the plea of qualified privilege cannot stand.
The answer to this contention is found among many other authorities, in the case of MAINSTREET BANK LTD VS. BINNA (supra) wherein the Supreme Court at page 340 of the Report held per Kekere-Ekun JSC that:
‘The position of the law is that once the plea of qualified privilege is made out, the inference of malice is rebutted and the burden is thrown upon the plaintiff to show and prove express malice against the defendants. To discharge the onus, the plaintiff must deliver a reply alleging express malice and give particulars of the facts from which such malice is to be inferred.’
In the instant case, and as rightly found by the learned trial Judge and correctly argued by learned counsel for the 3rd Respondent, the Appellant did not adduce convincing evidence before the trial Court to rebut the plea of qualified privilege by showing malice, neither did he file any reply showing particulars of malice on the part of any of the Respondents. In other words, there is no proof on record showing wrong motive, personal spite or ill will on the part of any of the Respondents to defeat the plea of qualified privilege.
This issue is therefore resolved against the Appellant.
On issue 3, which is whether the Appellant is entitled to damages in view of the evidence before the Court.
Having resolved issue 2 against the Appellant, issue 3 therefore becomes otiose. It will not serve any useful purpose to embark on any discourse on same.
In conclusion therefore, notwithstanding the resolution of issue 1 in favour of the Appellant, the appeal is still found to be lacking in merit. It is accordingly dismissed.
The judgment of the High Court of Delta State delivered on the 31st day of October, 2008 is hereby affirmed.
I make no order as to costs.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading the draft of the Judgment just delivered by my learned brother SAMUEL CHUKWUDUMEBI OSEJI, JCA; I am in full agreement with the reasoning and conclusion therein. I also find this appeal to be lacking in merit and deserving to be dismissed.
I agree that the judgment of the High Court of Delta State delivered on 31/10/2001 should be affirmed.
I make no order as to cost.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read in draft form, the judgment just delivered by my learned brother, SAMUEL CHUKWUDUMEBI OSEJI, JCA.
I agree that this appeal is devoid of merit and for the elaborate reasons advanced by my learned brother, I also dismiss the appeal.
There is no order as to costs.
Appearances:
F. J. OdeyaleFor Appellant(s)
Respondents not represented.For Respondent(s)
