ANYANWU v. AGBAHIWE (2022)

ANYANWU v. AGBAHIWE

(2022)LCN/16231(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Thursday, March 31, 2022

CA/OW/384/2018

Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Ibrahim Wakili Jauro Justice of the Court of Appeal

Between

H.R.H EZE RUFUS ANYANWU APPELANT(S)

And

AUSTIN AGBAHIWE RESPONDENT(S)

RATIO

THE POSITION OF LAW ON MAINTAINING A CIVIL ACTION FOR LIBEL OR SLANDER

The learned authors of GATLEY ON LIBEL AND SLANDER 9th Edition at Page 127, Paragraph 6.1, stated:
“No civil action can be maintained for libel or slander unless the words complained of have been published.
The material part of the cause of action in libel is not the writing, but the publication of the libel. In order to constitute publication, the matter must be published to (communicated to) a third party, that is to say, at least one person other than the Plaintiff.” Underlining Mine
As also held by the Supreme Court in the case of Nsirim v Nsirim (1990) 3 NWLR Part 138 Page 285 at 297 Para H per Obaseki, JSC:
“By publication is meant the making known of the defamatory matter to some persons other than the person of whom it is written … It is the reduction of libelous matter to writing and its delivery to any person other than the person injuriously affected thereby that is publication. The name of the person to whom delivery of the libelous document was made must be pleaded”.
The same Court, per His Lordship, Ayoola, JSC in Offoboche v Ogoja LG (2001) 16 NWLR Part 739 Page 458 at 483 Para D held:
“The essence of libel is that the libelous material exists in permanent form. It is thus essentially continuous in existence. However, its publication is a different matter. What exists in a permanent form is not ‘published’ until it is made known”
Thus, publication is simply the making known of the defamatory matter to some person other than the person of whom it is written. PER ADEFOPE-OKOJIE, J.C.A.

WHETHER OR NOT QUALIFIED PRIVILEGE IS A DEFENCE TO AN UNTRUE PUBLICATION

The Supreme Court, in the case of Iloabachie V. Iloabachie (2005) 13 NWLR Part 695 Page 695 at 712 Para B-H per Pats Acholonu, JSC, reading the lead judgment, held that:
“Qualified privilege is a defence to an untrue publication. It can only be claimed however when the occasion of the publication is shown to be privileged…. 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 conditions must exist in order that the occasion may be privileged.”
The learned Jurist held further at Page 717 Para C:
“In order to destroy or neutralize the defence of privilege or qualified privilege, it is incumbent on the appellant to prove malice.”
In Onah v Schlumberger (Nig) Ltd (2018) 17 NWLR Part 1647 Page 84 at 102 Para A-C, the same Court held, per Rhodes-Vivour, JSC, also reading the lead judgment, as follows:
“The defence of qualified privilege is available when there is a common interest between the maker of a defamatory statement and the person to whom it is made. There must be a reciprocity of interest…. The Court must consider the motive for the publication, to be satisfied that the maker of the defamatory statement was not actuated by malice. The defence of qualified privilege collapses when malice is established, and the onus is on the Plaintiff to satisfy the Court that the publication was actuated by malice. The truth or falsity of the libelous matter is irrelevant when considering the defence of qualified privilege.” PER ADEFOPE-OKOJIE, J.C.A.

THE POSITION OF LAW ON THE DUTY OF THE TRIAL COURT

It must always be borne in mind that it is the duty of the trial Court which sees and hears witnesses to evaluate the evidence, pronounce on their credibility and ascribe probative value thereto. The Court, while evaluating the evidence, is duty bound to put the entire evidence on an imaginary scale in determining in whose favour the balance tilts. See Statoil (Nig) Ltd v Inducon (Nig) Ltd (2021) 7 NWLR Part 1774 Page 1 at 55-56 Para H-A per M.D. Muhammad JSC; Obi v Uzoewulu (2021) 8 NWLR Part 1778 Page 352 at 373 Para G-H per Aboki JSC.
The appellate Court is always loath to interfere with this duty of the trial Court except for strong reasons or where the judgment is perverse. See Ismail v Federal Republic of Nigeria (2020) 2 NWLR Part 1707 Page 85 at 127 Para B per Peter-Odili, JSC; All Progressive Grand Alliance (APGA) v. Al-Makura (2016) 5 NWLR Part 1505 Page 316 at 348 Para E-F per Nweze JSC. PER ADEFOPE-OKOJIE, J.C.A.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Imo State, Nkwere Judicial Division (hereafter referred to synonymously as “the Lower Court”/ ”Trial Court”) delivered on the 26th day of June, 2018 in Suit No: HON/21/2012 by S.I. Okpara J, dismissing the claim of the Appellant for libel. Aggrieved, the Appellant filed a Notice of Appeal on 26/07/2018.

SUMMARY OF FACTS:
The Appellant who was the Plaintiff at the Court below had taken out an action against the Respondent, who was the Defendant, claiming as follows:-
1. The sum of N500,000.00 (Five Hundred Thousand Naira) being general damages for libel in that on or about the 16th day of April 2012 at Owerri, Ibele, Umuaka and many other places, the Defendant falsely and maliciously published of and concerning the Claimant a letter dated April 16th, 2012 titled “TYRANNIC RULE ON ‘COOKED– UP’ CONSTITUTION” BY EZE RUFUS ANYANWU IN IBELE AUTONOMOUS COMMUNITY– CALL FOR GOVERNMENT INTERVENTION addressed to the Executive Governor of Imo State through “The Special Assistant Peace and Conflict Resolution Government House, Owerri Imo State, and published to many other people, on account of which the Claimant has suffered loss and injury.
2. Perpetual injunction restraining the Defendant from further publishing the said libelous letter about and concerning the Claimant.
3. A written apology which the Defendant should also send to all those to whom he had sent the said libelous letter.

It is the case of the Appellant that he is the traditional ruler of Ibele Autonomous Community made up of 4 zones i.e Okwudor, Oru, Ndiuhu and Ndiokwu, while the Respondent is his subject and who hails from Okwudor zone. He alleged that some dissidents from Okwudor zone are currently challenging his “Ezeship” in the High Court in Suit No HON/49/2003. However, whilst the “Ezeship matter” was still pending, on April 16th, 2012, the Respondent wrote a letter addressed to the Executive Governor of Imo State through the Special Assistant, Peace and Conflict Resolution, Government House, Owerri Imo State, headed “Tyrannical Rule on “Cooked –up Constitution” by Eze Rufus Anyanwu in Ibele Autonomous Community – call for Government Intervention” and copied the letter to the Hon Commissioner Ministry of Local Government and Chieftaincy Affairs Imo State and also published same to many other people in Owerri, Ibele and Umuaka including Chief Eugene Iheme, Chief Sixtus Onwumere, Christian Durugo, Emmanuel Muna, Oliver Eneuka and others yet unknown to Appellant.

That in the said letter, the Respondent had alleged inter alia;
1. That the Appellant on several occasions threatened to kill him.
2. That Ibele Community submitted a cooked-up Constitution to the Government of Imo State when the Community sought autonomy.
3. That the said cooked up Constitution was made by the Appellant and members of his family.
4. That the Appellant misrules the community using this Constitution, and
5. That the Appellant is tyrannical.

It is the defence of the Respondent that though he wrote the said letter, the same was only delivered to the Executive Governor of Imo State through the Special Assistant, Peace and Conflict Resolution, Government House, Owerri Imo State and copied to the Hon. Commissioner, Ministry of Local Government and Chieftaincy Affairs, Imo State. He wrote the letter without malice and only made a fair comment on the matter of public interest relating to the State of Affairs in Ibele Community to the appropriate body, in a genuine desire for the restoration of peace, security, mutual trust and development, which had been elusive in Ibele Community. He alleged that the further publication of the petition/letter was done by the Appellant himself and which fact the Appellant admitted.

On the 26th June 2018, the lower Court delivered its judgment, dismissing the case of the Appellant. It held that the defences of qualified privilege and fair comment availed the Respondent. Dissatisfied by this judgment, the Appellant filed the instant appeal.

ISSUES FOR DETERMINATION:
In the Appellant’s Brief of Arguments filed on 25/02/2019 but deemed as properly filed on 30/09/2021, the following were the issues for determination formulated by their Counsel, C. T. Okeke Esq:
1. “Whether the lower Court was right when it held that the Appellant did not prove publication
2. Whether the lower Court was right when it held that Exhibit A (the Respondent’s petition) did not injure the reputation of the Appellant because the publication of same was not proved by the Appellant.
3. Whether the lower Court was right when it held that the defence of qualified privilege and fair comment availed the Respondent
4. Whether the lower Court was right when it held that the Appellant did not prove any malice against the Respondent
5. Whether the trial Court was right when it failed to make a finding as to whether the defence of justification availed the Respondent
6. Whether the lower Court was right when it dismissed the Appellant’s case and awarded a cost of N100,000.00 to the Respondent.”

In the Respondent’s Brief of Arguments filed on 24/12/21 and deemed properly filed on 02/03/2022, settled by their Counsel, J. I. Ogamba, the issues for determination formulated by the Appellant were duly adopted. The Appellant also filed a Reply Brief on 11/2/2022 but deemed properly filed on 2/3/2022.

I shall adopt the 6th issue formulated by the Appellant as the singular issue for determination and under which the other issues shall be considered, namely:
Whether the lower Court was right when it dismissed the Appellant’s case and awarded costs of N100,000.00 to the Respondent.

APPELLANT’S SUBMISSIONS
The Appellant’s Counsel commenced by submitting that the lower Court was wrong to hold that the Appellant did not prove the publication of Exhibit “A”, the offensive letter, as the Appellant had amply proved the publication of the letter by calling CW1, one of the people to whom the letter was published and who gave evidence that Exhibit “A” exposed the Appellant to hatred and injured his reputation. The Court was thus not right to hold that the said letter did not injure the reputation of the Appellant.

Learned Counsel further contended that contrary to the decision of the lower Court, the defence of qualified privilege was not available to the Respondent, as the facts relied upon by the Respondent are not true, for had the alleged threats to kill been true, the same would have been reported to the Police. In addition, the Special Assistant to the Governor on Peace and Conflict Resolution has no power or authority to investigate allegations of crime. He therefore has no common interest with the Respondent over the allegation of crime made against the Appellant. He accused the Respondent of failing to produce the allegedly forged Constitution by the Appellant. The evidence of malice, he said, destroyed the defence of qualified privilege, citing UBA PLC V Davies (2011) 11 NWLR (Part 1259) page 591. Agreeing that the lower Court considered the defences of fair comment and qualified privilege, it was his contention that he refused to consider the defence of justification, as the onus lies on the defendant who relies on the defence of justification to prove the truth of the words complained of in their ordinary and natural meaning. He cited Din V African Newspapers Ltd (1990) 3 NWLR (Part 139) 392 at 409 Para D-E. He alleged that the Respondent deliberately refused to produce the Constitution, because if he had, it would have been obvious to the Court that same was not forged as the Respondent alleged.

Citing the case of Ezegbo V Igbokwe (2016) LPELR 40784 and Nsirim V Nsirim (2004) 26 WRN 13 at 29 Counsel submitted that from the facts of this case, the Appellant proved all the ingredients of libel and that the lower Court was wrong to have dismissed the case of the Appellant and awarded costs of N100,000.00 against the Appellant, in favour of the Respondent.
RESPONDENT’S SUBMISSIONS
Learned Counsel submitted that it was not in issue that the Respondent wrote the letter to the Governor of Imo State, he however denied publishing the letter to persons other than the Executive Governor of Imo State through the Special Assistant, Peace and Conflict Resolution and the Hon. Commissioner Ministry of Local Government and Chieftaincy Affairs. The other persons mentioned by the Appellant were those to whom the Appellant himself published the letters to, being his kinsmen and relations. In addition, the Appellant is deemed to have admitted the evidence of the Respondent on this point having not cross-examined the Respondent on this crucial point, citing Mr. Innocent Ibe V. Mr. Stephen Ibhaze (2016) LPELR-41556 (CA) at 19-20 per Adefope-Okojie, JCA.

He accused the Appellant’s witness, CW1, of prevaricating on this point, as rightly observed by the lower Court. As the publication of the libel was not proved, the action must fail and the issue of injuring of the Appellant’s reputation was not proved. He pointed out that the Appellant admitted that the Adviser to the Governor on Peace and Conflict resolution gave him a copy of Exhibit A to react to and that he (Appellant) sent a copy to his brother (Abel Anyanwu). Any further publication of the letter was therefore orchestrated by the Appellant and not the Respondent. He disagreed that the burden of producing the Constitution was on the Respondent, as the Respondent had been given Notice to produce the Original Copy of the Constitution, which he failed to produce. Efforts made by the Respondent to tender photocopies of the said Constitution were stiffly challenged by the Appellant and upheld by the trial Court on 27th day of March, 2018.

On the question of failing to report the threats to his life to the Police, the Appellant’s Counsel referred to the evidence of DW1, contending that the Respondent’s failure to report the threat to the Police does not negate the fact that the threat was made. Justifying the defences relied upon by the Respondent, Counsel submitted that the Respondent wrote Exhibit A to the Governor of Imo State honestly complaining about the State of Affairs in his community, Ibele, giving reasons why the events are occurring and proffering solutions to the social problem. He denied the existence of malice, pointing out that the Respondent is not a plaintiff in the said Suit HON/149/2003 and has never challenged the “Ezeship” of the Appellant. In addition, the persons to whom the complaint was made are offices created to assist the Governor in good governance and maintenance of peace and security in the State, most especially at the local government level. The Respondent and the Governor of Imo State, the Special adviser and the Commissioner thus have reciprocity of interest in the subject matter of Exhibit A, citing Sketch V. Ajagbemokeferi (1989) LPELR-3207 (SC) Per Agbaje JSC at 52-54.

On justification, learned counsel submitted that the Respondent tendered Exhibits L, P and Q to show that the Okwudor Village was not aware of the making of the Constitution and that Chief Philip Okwara who signed the said Constitution on behalf of Okwudor Village was not yet the village head of Okwudor as at the 1st day of January, 1994 when he purportedly signed the constitution. The said Constitution of Ibele is being duly amended as directed by the Peace and Conflict Resolution, thanks to the letter/petition of the Respondent.

RESOLUTION
The first point to determine is whether there was publication. This is because unless the words complained of have been published, no action can be maintained for libel and slander.
The learned authors of GATLEY ON LIBEL AND SLANDER 9th Edition at Page 127, Paragraph 6.1, stated:
“No civil action can be maintained for libel or slander unless the words complained of have been published.
The material part of the cause of action in libel is not the writing, but the publication of the libel. In order to constitute publication, the matter must be published to (communicated to) a third party, that is to say, at least one person other than the Plaintiff.” Underlining Mine
As also held by the Supreme Court in the case of Nsirim v Nsirim (1990) 3 NWLR Part 138 Page 285 at 297 Para H per Obaseki, JSC:
“By publication is meant the making known of the defamatory matter to some persons other than the person of whom it is written … It is the reduction of libelous matter to writing and its delivery to any person other than the person injuriously affected thereby that is publication. The name of the person to whom delivery of the libelous document was made must be pleaded”.
The same Court, per His Lordship, Ayoola, JSC in Offoboche v Ogoja LG (2001) 16 NWLR Part 739 Page 458 at 483 Para D held:
“The essence of libel is that the libelous material exists in permanent form. It is thus essentially continuous in existence. However, its publication is a different matter. What exists in a permanent form is not ‘published’ until it is made known”
Thus, publication is simply the making known of the defamatory matter to some person other than the person of whom it is written.

In the instant case, the letter, Exhibit A, was sent to the Executive Governor of Imo State through the Special Assistant, Peace and Conflict Resolution and the Hon. Commissioner Ministry of Local Government and Chieftaincy Affairs, as admitted by both parties, there was thus publication of the letter.

In his defence, however, the Respondent has alleged that the letters were written to these officers under circumstances of qualified privilege and fair comment. Counsel submitted that the Respondent wrote Exhibit A to the Governor of Imo State honestly complaining about the State of Affairs in his community, Ibele, giving reasons why the events are occurring and proffering solutions to the social problem.
The lower Court, referring to the evidence before it and the Statement of Defence of the Respondent held:
“It is not in doubt in this case that the Plaintiff is the Traditional Ruler of Ibele Autonomous Community where the defendant hails from. Exhibit ‘B’ – the Plaintiff’s Certificate of recognition from Imo State Government, paragraphs 1 and 2 of the statement of claim and paragraph 3 of the statement of defence are clear on the aforesaid point. Therefore, the defendant had the right/duty to complain to the appropriate bodies i.e. Special Adviser on Peace and Conflict Resolution and the Commissioner for Local Government and Chieftaincy affairs on any perceived matter he (the defendant) is not comfortable with in his town, Ibele… I therefore hold that the occasion under which the defendant wrote Exhibit ‘A’ and delivered same to the Special Adviser on Peace and Conflict Resolution and the Commissioner for Local Government and Chieftaincy affairs Imo State is privileged. It is also covered by the defence of fair comment in that the defendant was explicit in Exhibit ‘A’ that the purpose of the Writing was to achieve peace in Ibele town and nothing more.”
The Supreme Court, in the case of Iloabachie V. Iloabachie (2005) 13 NWLR Part 695 Page 695 at 712 Para B-H per Pats Acholonu, JSC, reading the lead judgment, held that:
“Qualified privilege is a defence to an untrue publication. It can only be claimed however when the occasion of the publication is shown to be privileged…. 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 conditions must exist in order that the occasion may be privileged.”
The learned Jurist held further at Page 717 Para C:
“In order to destroy or neutralize the defence of privilege or qualified privilege, it is incumbent on the appellant to prove malice.”
In Onah v Schlumberger (Nig) Ltd (2018) 17 NWLR Part 1647 Page 84 at 102 Para A-C, the same Court held, per Rhodes-Vivour, JSC, also reading the lead judgment, as follows:
“The defence of qualified privilege is available when there is a common interest between the maker of a defamatory statement and the person to whom it is made. There must be a reciprocity of interest…. The Court must consider the motive for the publication, to be satisfied that the maker of the defamatory statement was not actuated by malice. The defence of qualified privilege collapses when malice is established, and the onus is on the Plaintiff to satisfy the Court that the publication was actuated by malice. The truth or falsity of the libelous matter is irrelevant when considering the defence of qualified privilege.”
Yet again, the same Court held, in the recent case of Citi Bank (Nig)Ltd v Ikediashi (2020) 13 NWLR Part 1741 Page 357 at 368 Para B-F per Kekere-Ekun, JSC as follows:
“On the issue of the defence of qualified privilege relied on by the Appellant, it is a defence to an untrue publication. It can only be claimed when the occasion of the publication is shown to be privileged. See: Iloabachie v. Iloabachie (2005) 13 NWLR (Pt.943) 695: An occasion is said to be privileged where there is a common interest between the maker of the statement and the person to whom it was made. A privileged occasion is an occasion where the person who makes a communication has an interest or duty, legal social or moral, to write it to the person to whom it is made, and the person to whom it is made has a corresponding duty to receive it. See: Akomolafe v. Guardian Press Ltd. (Printers) & Ors.(2010) 3 NWLR (Pt. 1181) 338; Iloabachie v. Iloabachie (supra);Atoyebi v. Odudu (1990) 9-10 SC 150, (1990) 6 NWLR (Pt. 157)384.
The defence of qualified privilege is a shield relied upon by a defendant where it is proved that the statement complained of is untrue.”
In the instant case, the lower Court agreed with the Respondent that he, as an indigene of Ibele Autonomous Community, whose traditional ruler is the Appellant, had the right to complain to the bodies that he wrote to, “on any perceived matter he is not comfortable with”. I see no reason to disagree with the lower Court on this finding, as the letter was complaining of happenings in the community and accusing the Appellant of “cooking” up a Constitution which was never agreed to by them, making the stool hereditary. He proffered solutions to the problem and also complained of threats to his life because of the position taken by him.
There was thus reciprocity of interest, I hold, between the Respondent and the recipient of the letter, being the Governor of the State, through the Special Assistant, Peace and Conflict Resolution and copied to the Commissioner, Ministry of Local Government and Chieftaincy Affairs, Imo State. The only deterrent that would render this defence unavailable to the Respondent is proof of malice by the Appellant.
In order to defeat this defence, the Appellant must file a Reply to plead the incidents of malice. So held the Supreme Court, per Ariwoola, JSC at Page 365 Para G in the case of Citi Bank (Nig)Ltd v Ikediashi Supra, as follows:
“It is trite law that in order to debunk or destroy the defendant’s defence of fair comment or qualified privilege, a plaintiff must file a reply to specifically plead and call credible evidence of malice in the defendant.”
Similarly, describing the manner of rebuttal required, His Lordship Pats Acholonu, JSC in the case of Iloabachie v Iloabachie Supra, held at Pages 716-717 Para H-A as follows:
“A reply to a defence of qualified privilege should resonate with facts and particulars that show the malicious intention of the publisher of the statement. It is to say that implicit in such a publication would readily depict a mind poisoned or jaundiced by the prejudice and evil disposition bent on destructive calumny against the plaintiff.”
The lower Court, ruling on whether malice was proved by the Appellant, held as follows:
“The Plaintiff had not succeeded in proving any malice against the defendant. As I have shown above, the pleadings in this case, evidence and Exhibits thereon, particularly Exhibits A, D, J, K, L, M, N, P and O have shown that the defendant was activated by public interest, his duty and interest to complain to the appropriate authorities and the corresponding duties of the appropriate authorities to receive his complaints.”
I am again in agreement with the lower Court. Not only did the Reply filed by the Appellant failed to disclose any malice, the fact that there was in existence a case filed in the Courts at the time this letter was written, is by itself no evidence of malice. This is in particular as the Respondent has alleged that he is not a party in that case.

The Appellant has again contended that the letter was not only published to the Government institutions mentioned above but also to certain individuals. One of the named persons was CW1, Chief Eugene Iheme, whose deposition, at Page 18 of the Record is that while he was at Afor Umuaka market the Respondent handed him the petition.

Under cross-examination, he was challenged as to the falsity of the contention, with the lawyer asking:
“You have no business or brotherly relationship at all with the Defendant”
His response was that:
“The Defendant is not my relative but I know him as an indigene of Ibele Okwudor precisely”
He was further challenged by the question:
“The Defendant is a General Manager of First Bank Nigeria Plc and you told us here in Court that you are an Okada rider.”
His response was:
“Yes, that is true”

On a question that “Therefore, there is no meeting point wherein the Defendant gave you “Exhibit A” to which he responded “The Defendant knows me as the Paramount Chief of Ndiokwu and the Defendant comes to my house”.

The lower Court, commenting on the answers given by this witness under cross-examination, held:
“From the evidence of the CW1, Chief Eugene Iheme under cross-examination, Chief Eugene Iheme failed to respond directly to the direct questions thrown at him as regards his deposition in paragraph 3 of his two depositions but chose to prevaricate and did not confirm what he asserted in his evidence in chief…With the express denial of the Defendant in his pleading and in his evidence in this Court on 4/7/17 and 20/10/17 that he did not publish his said petition to Chief Eugene Iheme and other named persons in the Statement of Claim, the prevarication of Chief Eugene Iheme (CW1) under cross-examination as shown above and the express admission of the Plaintiff that he got a copy of the Defendant’s petition from the Special Adviser on Peace and Conflict Resolution and sent same by email to his brother, Abel Anyanwu, this Court cannot therefore on the balance of probability hold that the Plaintiff has proved the publication of the Defendant’s petition, Exhibit A to Chief Eugen Iheme and others mentioned in the Plaintiff’s Statement of Claim. To worsen the case of the Plaintiff in respect of proof of publication, the Plaintiff did not call other persons, namely Chief Sixtus Onwumere, Christian Durugo, Emmanuel Muna and Oliver Egeuka as witnesses in this case, having mentioned them in paragraph 5 of his Statement of Claim as those who the Defendant also published his said petition (Exhibit A) to.”

It must always be borne in mind that it is the duty of the trial Court which sees and hears witnesses to evaluate the evidence, pronounce on their credibility and ascribe probative value thereto. The Court, while evaluating the evidence, is duty bound to put the entire evidence on an imaginary scale in determining in whose favour the balance tilts. See Statoil (Nig) Ltd v Inducon (Nig) Ltd (2021) 7 NWLR Part 1774 Page 1 at 55-56 Para H-A per M.D. Muhammad JSC; Obi v Uzoewulu (2021) 8 NWLR Part 1778 Page 352 at 373 Para G-H per Aboki JSC.
The appellate Court is always loath to interfere with this duty of the trial Court except for strong reasons or where the judgment is perverse. See Ismail v Federal Republic of Nigeria (2020) 2 NWLR Part 1707 Page 85 at 127 Para B per Peter-Odili, JSC; All Progressive Grand Alliance (APGA) v. Al-Makura (2016) 5 NWLR Part 1505 Page 316 at 348 Para E-F per Nweze JSC.

The lower Court, in this case, as stated by it, reviewed the evidence of all the witnesses, the documents tendered and resolved the facts on the balance of probability, arriving at the decision it did. I see nothing perverse about this decision, with no requirement to interfere with the same.

The Appellant has again complained that the lower Court made no findings on the defence of justification. However, the trial Judge having held that there was no publication to the other persons mentioned in the claim of the Appellant and he having held that the defence of qualified privilege availed the Respondent, there was no requirement, I hold, for the Court to further consider the defence of justification.

For all the reasons given above, I hold that the lower Court was right to have dismissed the Appellant’s case. As the award of costs is incidental to the success of a party, the lower Court was right to have awarded costs of N100,000 to the Respondent against the Appellant. I thus resolve the sole issue for determination against the Appellant.

This appeal accordingly fails and is dismissed. I however make no order as to costs.

RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother, OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA.
I agree with his reasoning and conclusions. The appeal is dismissed.

The judgment of the High Court of Justice of Imo State, Nkwere Judicial Division, delivered on the 26th day of June, 2018 in Suit No: HON/21/2012 is hereby affirmed.

IBRAHIM WAKILI JAURO, J.C.A.: I have before now read the draft judgment just delivered by my learned brother Adefope-Okojie, JCA. I am in complete agreement of his Lordship who gave a dispassionate consideration of this appeal and arrived at the conclusion of which I equally adopt same. The appeal I agree is lacking in merit and must fail.
I too dismiss same with no order as to costs.