APPI-AGAMA v. GEORGE N.D. (2020)

APPI-AGAMA v. GEORGE N.D.

(2020)LCN/14563(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Friday, August 14, 2020

CA/PH/38/2017

RATIO

PLEADINGS: LIBEL

The fundamental significance and objective of libel is that the libelous material subsists permanently. Thus, by the nature thereof, libel is continuous. Contrariwise, however, the fact that a document is in existence does not necessarily make it libelous until it is made known to a third party. The term ‘publication’ denotes making known of the defamatory matter to some persons other than the very person to whom it is written. See NSIRIM VS. NSIRIM (1990) 3 NWLR (PT. 138) 285 at 297 paragraph G.
Analogically, every blessed time a libelous material is made known to a third party, publication in all its ramifications takes place. The question of continuous publication of a libelous material is alien to the concept of the law of defamation. Thus, each time a person who is privileged to have knowledge of the contents of a libelous/material, reads and reads same to himself does not amount to a fresh publication. As aptly held by the Supreme Court: –
There is no concept of “continues publication” in the law of determination. Every publication and republication is complete in itself in founding a cause of action. A party who alleges the single publication and makes that the foundation of his cause of action cannot exceed the period of accrual of cause of action merely by pleading further publications respect of which he has not sued.
See OFFOBOCHE VS. OGOJA LOCAL GOVT (2001) LPELR – 2265 (SC) per Ayoola JSC at 13 – 14 paragraphs F – G.
As aptly posited by learned erudite jurist, Ayoola, JSC the law was well stated by Gatley in LIBEL AND SLANDER, 9th Edition at paragraphs 18 – 21:
Each and every publication of libel gives a distinct and separate cause of action and the action may be brought against the publisher within the limitation period thereafter although by reason of the lapse of time no action would lie for the original.
See DUKE OF BRUNSWICK VS. HARMER (1849) 14 QB 185, wherein it was aptly held that time began to run from the date the issue of the paper containing a libelous material was purchased, notwithstanding that the original publication was made 17 years earlier.

In the instant case, the Respondent has averred in the consequential statement of defence thereof thus:
7(b) The Defendant avers: –
(i) That while both letters were written to the Chairman of the Nembe Chiefs Council, the Head of the traditional government in Nembe it was only the 2nd letter dated 5th February, 2005 that was endorsed to the DPO, Nigeria Police Nembe, the bishop of the Diocese of the Niger Delta West and Chief Kulo/Head Chief of Kulo/ Koko Group of house)
(ii) That the letter was endorsed to the police as a report of the criminal activities of the youths who came to the Church and to the bishop as the Administrative and Spiritual Head of the Church on whose behalf the letter was written and to Chief Offrey Kulo to report the involvement of Plaintiff as his house Chief and the dastardly role played by youths from his house.
8(a) Plaintiff denies the averments in paragraphs 7, 8, 9 and 10 of the amended statement of claim and states: –
(i) That he, defendant, is not aware that a query was issued to the Plaintiff by Chief Kulo.
(ii) That Defendant is not aware that Plaintiff replied to the query from Chief Kulo or any query at all Defendant is unaware if Plaintiff exonerated himself.
(iii) That whatever happen between Chief Kulo and the Plaintiff was an internal affair of the Kulo/Koko Group of House to which defendant does not belong.
(iv) Defendant pleads qualified privilege for endorsing the 2nd letter to the Nigeria Police, the Bishop of Diocese of the Niger Delta West and Chief Offrey Kulo to whom he defendant owed a duty. To the Police because of criminal report was made in the interest of society and to the other 2 (two) persons because they has jurisdiction or control over the Plaintiff and the defendant respectively.
(v) Defendant pleads that the Police, the Bishop and Chief Offrey Kulo have corresponding interest to receive the report. . Per IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

RATIO

PLEADINGS: DEFENCE OF QUALIFIED PRIVILEGE

It is trite, that a plea of qualified privilege when duly established tantamounts to a complete defence to a libel action. See OBIKOYA VS. NIGERIAN NATIONAL PRESS LTD. UBN LTD VS. OREDEIN (1992) 6 NWLR (Pt. 247) 355; ADAM VS. WORD (1917) AC.
Having amply satisfied itself that the defense so far put forward by the Respondent had been duly proved, the Court below came to the following conclusive judgment at page 163 of the Record: –
In my humble view that this defence avails the defendant and had the view that this has been proved. The fact that Plaintiff/Claimant was not invited by the police for any investigation of fact finding mission on the matter does not make any difference as loud as the maker of publication was an interest or duty whether legal social or moral to make it to a person who has a corresponding interest or duty to receive it.
In my considered view, the conclusive findings of the Court below copiously alluded to above, are cogent, unassailable and duly supported by the pleadings and evidence on record. In the circumstances, the first and second issues ought to be, and same are hereby resolved against the Appellant. It is axiomatic, that in civil matters, a claimant ought to succeed on the strength of his case he is able to establish, and not on the apparent weakness of the defence.
With particular regard to claim of libel, as in the instant case, the law is trite as alluded to above that the publication, in its technical sense is always a crucial ingredient. See AJAKAIYE VS. OKANDEJI (1972) 1 SC 92; NSIRIM VS. NSIRIM (supra); GIWA VS. AJAYI (1993) 5 NWLR (Pt.294) 423; UGBOMOR VS. HADOMEH (1997) 9 NWLR (Pt. 520) 3.
Afortiori, the law is equally trite, that a plea of qualified privilege, when duly established, as in the instant case, tantamounts to a complete defense to a libel action. See OBIKOYA VS. UN PRESS LTD (supra); UBN LTD VS. OREDEIN(1992) 6 NWLR (Pt.247) 355; ADAM VS. WORD (1917) AC. Per IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

Before Our Lordships:

Ibrahim Mohammed Musa Saulawa Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Between

CHIEF S. S. N. APPI-AGAMA APPELANT(S)

And

EGI GEORGE N. D. RESPONDENT(S)

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The instant appeal is a fall-out of the Judgment of Bayelsa State High Court, holden at Nembe Judicial Division, delivered on December 15, 2010 in Suit No. NHC/6/2008. By the Judgment in question, the Court below Coram L. M. Boufini, J, dismissed the Appellant’s suit.

BACKGROUND FACTS
The nature and circumstances surrounding the instant appeal are very much gleanable from the Records of Appeal.

The suit was instituted in the Court below by the Appellant on September 16, 2008. Vide a writ of summons. By paragraph 20 of the Further Amended statement of claim, filed on 30/03/2010, the Appellant claimed the following relief against the Respondent:
9. The plaintiff has in consequence been seriously injured in his character, credit and reputation and has been brought into public scandal, odium and contempt and the Plaintiff claims the sum of Fifty Million Naira (N50,000,000.00) being damages for Libel as contained in a letter of the defendant dated 5th February, 2005 and published by the Defendant to the Nembe Chief council as well as the cost of this action.

Contrariwise, by the Amended statement of Defence (Consequential) thereof, filed on 21/01/2010, the Respondent vehemently denied the Appellants claim in toto:
14. In answer to paragraph 20 of the amended statement of claim defendant:
(a) States that the plaintiff is not entitled to the prayers he is seeking; and
(b) Urges the Court to dismiss the suit with substantial costs for being unmeritorious speculative gold digging.

Pleadings having been filed and exchanged by the respective parties, the suit proceeded to trial. At the end of thereof, the Court below delivered the vexed judgment to the conclusive effect:
In all the Court must be satisfied that the totality of the evidence that the defence put up is proved.
It is my humble view that this defence avail the defendants and hold the view that this has been proved. The fact the Plaintiff/Claimant was not invited by the police for any questioning of act finding mission on the matter does not make any difference as long as the maker of the publication has an interest or duty whether legal, social or moral to make it to a person who has a corresponding interest or duty to receive

it…
In the light of the above, the defence of qualified privilege is proved and this being the case the claim should fail and I so hold.
It is against this background that this case is hereby dismissed.

The originating notice of appeal was dated 04/11/2016 but filed on 14/11/2016. See pages 165-167 of the Record of Appeal transmitted on 24/01/2017.

The Appellant’s brief of argument was filed on 10/03/2017 by Vicar I. Oguator Esq. That brief spans a total of 16 pages. At page 4 thereof, two issues have been raised:
(1) Whether in the totality of the evidence before the Trial Court, the trial judge was right in dismissing the Appellant claim against the Respondent, when it was obvious that the evidence of the Appellant far outweighs the evidence of the Respondent on the proof of the Libel Claim.
(2) Whether the defence of qualified privilege set up by the Defendant can avail him in the defence of the Libel.

The issue No 1 is extensively argued at pages 5 – 9 of the said brief. In a nutshell, it is argued that the Court below was wrong to have dismissed the Appellant’s case when there was

over-whelming evidence before it, to the effect that the claim of Libel was duly established against the Respondent as set up in the pleadings. For the trite principles of proof of Libel, reliance is placed upon the cases of GIWA VS. AJAYI (1993) 5 NWLR (PT. 294) 423 @ 431; N. T LTD VS. TUGBIYEYE (2005) ALL FWLR (PT 241) 35M @ 372 A-F; ACB LTD VS ASAOLU (2005) ALL FWLR (PT – 270) 2092 @ 2137 F – G. NSIRIM VS. NSIRIM (1990) 3 NWLR (PT. 138) 285 @ 298; et al.

Alluding to the evidence of PW1, PW2, DW1, DW2, DW3, DW4 and DW5 vis-a-vis Exhibits A. A1, B1, B2, and B3, BC, it was argued that the only reasonable inference that could be drawn was that Exhibit B was indeed a falsehood and an attempt to blackmail the Appellant.

The Court is urged to so hold that the Appellant was entitled to the reliefs sought, as per the statement of claim thereof.

The issue No. 2, predicated on ground 2 of the notice of Appeal, has been canvassed at pages 9 – 14 of the brief. In the main, it’s argued that in the case at hand, the defence of qualified privilege cannot avail the Respondent because (i) the publication of Exhibit B was not a fair and

accurate account of all that transpired; (ii) there’s no evidence before the Court below to support the facts that the Appellant actually did; (iii) that it was not shown in Exhibit G3 that the allegation was true and same duly proved before the Court below; (iv) that the Respondent was also guilty of malice against the Appellant, as there was no justifiable reason for the Respondent in making the publication against the Appellant. See GOMES VS. PUNCH (NIG) LTD (1999) 5 NWLR (PT.602) 303 @313 C – A; et al.

The Court is urged to so hold, that the plea of qualified privilege as set up by the Respondent cannot mitigate the Libel claim of the Appellant as was held by the Court below.

Conclusively, the Court is urged upon to allow the appeal, set aside the vexed judgment and grant the reliefs as per the Appellants statement of claim.

Contrariwise, the Respondents brief settled by Felix O. Asotie Esq. on 29/03/2017, spans a total of 17 pages. At page 2 thereof, the Respondent raises a couple of issues:
1. Whether from the evidence before the trial Court the Appellant established the claim of Libel.
2. Whether the learned trial

Judge was right in holding that defence of qualified privilege availed the defendant and therefore mitigated the claim.

The issue 1 has been canvassed at pages 2 to 5 of the said. It is submitted in the main, that the Appellant has failed to prove Libel against the Respondent. That the Appellant has failed to prove that publication (of Exhibit B) was false, and that it was published by the Respondent. See NSIRIM VS. NSIRIM (1990) 3 NWLR (PT. 138) 287, 297 Paragraph G – I.

It was argued, that the Respondent admitted that he wrote Exhibit B, but he did not admit publishing or delivering of the content of Exhibit B to anybody. See MAMMAN VS. SALAUDEEN (2005) 18 NWLR (PT.958) 478 @ 509 Paragraph H.; NSIRIM VS . NSIRIM (supra) @ 285.
The Court is urged to so hold, and resolve issue 1 in favour of the Respondent.

The issue 2 was extensively argued at pages 5-14 of the brief, to the effect that the Court below was right in holding that the defence of qualified privilege availed the Respondent and therefore mitigated the claim. See OBASUYI VS. EZEIGBE (1991) 3 NWLR (PT.181) 585 @ 596 Paragraphs D – E; OBASUYI VS MOMODU (1994) 1 NWLR

(PT.323) 685 @ 701 Paragraphs B – C; et al.

Further argued, that the Appellant has failed to plead to prove any fact showing malicious intention of the Respondent. Therefore, the defence of qualified privilege having not been disclosed by express malice, same avails the Respondent of the Libel claim.
The Court is urged to so hold, and resolve issue 2 in favour of the Respondent.
Conclusively, the Court is urged up to dismiss the appeal in its entirety for lacking in merits.

Having accorded an ample regard upon the nature and circumstances surrounding the instant appeal vis-à-vis the submissions of the learned counsel contained in their respective briefs of argument, I have deemed it expedient, at this point and stage, to adopt the two issues raised and canvassed by the Appellant in the brief thereof for the determination of the appeal, anon.

ISSUES NO. 1
The first issue is distilled from grounds 1 and 3 of the notice of appeal, thereby raising the vexed question of whether or not on the totality of the evidence before it, the Court below was right in dismissing the Appellant’s claim when it was obvious

that the said evidence far-outweighs that of the Respondent on proof of the Libel claim.

ISSUE NO. 2
The second issue raises the vexed question of what the defence of qualified privilege put up by the Respondent can avail him. The issue is distilled from ground 2 of the notice of appeal. I have deemed it expedient to determine both issues together, anon.

The genesis of the case leading to the instant appeal is traceable to February 5, 2005. That was the day the Respondent allegedly wrote and published libelous letter (Exhibit B) to the Appellant and members of the Nembe Council of Chiefs. The said Exhibit B (titled “OSUMAEGBE ORACLE DECLARE WAR AGAINST GOD”, dated 05/02/2005) has been copiously alluded to at page 157 of the Record of Appeal by the Court below this:
We write to inform you again that operators of the Osumaegbe Oracle has decided to wage war against God. The reason for this was of course is best known to them. It would be recalled that a letter titled “Report on a case of Trespass by the Osumagbe Ebibege (Oracle)” and dated 23rd December, 2004 was sent to the Chiefs’ council. In it, it was

reported how on the 5th of October, 2004, the Osumagbe Ebibege controlled by four gentlemen led the oracle into the church, when some female worshipers were in the church for a programme. While we are patiently waiting for the outcome of that letter, it is the worst that has happened. On the 29th of January, 2005, a marriage blessing ceremony between Chief S.O. Obiene Afa Natebo and his wife was going on in the church. To the surprise and embarrassment of everybody, some group of youths (males), all wearing black and tying various items either round their waist, the forehead or upper arm handling all sorts of weapons including guns, matchets, etc with war songs and drums forced themselves into the church, after firing two to three shots of guns by the church door. The remains of the fired missiles are with the church as evidence. Sir we have also been reliably informed that Chief S.S. Appi-Agama of the Kulo/Koko group of houses is behind and in full support of the group.

As claimed by the Appellant, the publication of Exhibit B by the Respondent to the Chairman and members of the Nembe council of chiefs in question has greatly injured the

Appellant’s credit and reputation. Most particularly, it was pleaded by the Appellant in the further Amended Statement of Claim thus:
15. That by the publication of the aforesaid words by the defendant, the Plaintiff is now projected in the minds of the right thinking members of the Nembe Chief’s Council and the entire Nembe Community as a violent, irresponsible and devilish person among the Nembe community.
16. The plaintiff shall contend at the trial that the said publication made by the Defendant was indeed offending and does not refer to the true state of affairs.
17. Particularly, the plaintiff states that the said publication referred to him, and by their ordinary meaning, the words are defamatory.
18. In that regard, the plaintiff avers further that the publication was made to third parties particularly the parties the letter was endorsed to and members of the Nembe council of Chiefs and members of the Kulo/Koko Group of Houses where the letter was read openly to the public.
19. Finally, the plaintiff states that the said letter was falsehood in its entirety and there was no legal justification for the

publication by the Defendant.
20. The plaintiff has in consequence been seriously injured in his character, credit and reputation and has been brought into public scandal, odium and contempt AND the plaintiff claims the sum of Fifty Million Naira (N50,000,000.00) being damages for libel as contained in a letter of the defendant dated 5th February, 2005 and published by the Defendant to the Nembe Chief’s Council as well as the cost of this action.

By the witness deposition thereof, the Appellant avers that a copy of Exhibit B was endorsed to Chief Offrey Kulo (Head Chief Kulo/Koko Group of Houses). Consequent whereupon the Appellant was queried on 04/03/2005 by the Head of Koko Group of Houses (Chief Kulo) in question in recalled to the alleged complaint Exhibit B.

On the other hand, the Respondent averred in the consequential Amended Statement of defence, inter alia:
13. At the trial, the Plaintiff shall rely on the various membership certificates, memos, weekly publications and documents in proof of the facts pleaded in Paragraph A-H Above.
14. The Plaintiff further avers that despite several entreaties on the Defendant by the

Plaintiff through the Plaintiff’s Solicitors to retract the libelous materials the defendant has failed and/or neglected to do so. A copy of Plaintiff’s Solicitor’s letter addressed to the Defendant requesting the Defendant to retract the libelous material is hereby pleaded and shall be relied upon during the trial of this suit.

In defence thereof, the Respondent equally called a total of 5 witnesses who appeared in Court, tendered and adopted their respective depositions. All in all, 19 Exhibits were tendered in the course of the trial.

publication in all its ramifications takes place. The question of continuous publication of a libelous material is alien to the concept of the law of defamation. Thus, each time a person who is privileged to have knowledge of the contents of a libelous/material, reads and reads same to himself does not amount to a fresh publication. As aptly held by the Supreme Court: –
There is no concept of “continues publication” in the law of determination. Every publication and republication is complete in itself in founding a cause of action. A party who alleges the single publication and makes that the foundation of his cause of action cannot exceed the period of accrual of cause of action merely by pleading further publications respect of which he has not sued.
See OFFOBOCHE VS. OGOJA LOCAL GOVT (2001) LPELR – 2265 (SC) per Ayoola JSC at 13 – 14 paragraphs F – G.
As aptly posited by learned erudite jurist, Ayoola, JSC the law was well stated by Gatley in LIBEL AND SLANDER, 9th Edition at paragraphs 18 – 21:
Each and every publication of libel gives a distinct and separate cause of action and the action may be brought

against the publisher within the limitation period thereafter although by reason of the lapse of time no action would lie for the original.
See DUKE OF BRUNSWICK VS. HARMER (1849) 14 QB 185, wherein it was aptly held that time began to run from the date the issue of the paper containing a libelous material was purchased, notwithstanding that the original publication was made 17 years earlier.

involvement of Plaintiff as his house Chief and the dastardly role played by youths from his house.
8(a) Plaintiff denies the averments in paragraphs 7, 8, 9 and 10 of the amended statement of claim and states: –
(i) That he, defendant, is not aware that a query was issued to the Plaintiff by Chief Kulo.
(ii) That Defendant is not aware that Plaintiff replied to the query from Chief Kulo or any query at all Defendant is unaware if Plaintiff exonerated himself.
(iii) That whatever happen between Chief Kulo and the Plaintiff was an internal affair of the Kulo/Koko Group of House to which defendant does not belong.
(iv) Defendant pleads qualified privilege for endorsing the 2nd letter to the Nigeria Police, the Bishop of Diocese of the Niger Delta West and Chief Offrey Kulo to whom he defendant owed a duty. To the Police because of criminal report was made in the interest of society and to the other 2 (two) persons because they has jurisdiction or control over the Plaintiff and the defendant respectively.
(v) Defendant pleads that the Police, the Bishop and Chief Offrey Kulo have corresponding interest to receive the report.

It is axiomatic, that in civil matters, a claimant ought to succeed on the strength of his case he is able to establish, and not on the apparent weakness of the defence.
With particular regard to claim of libel, as in the instant case, the law is trite as alluded to above that the publication, in its technical sense is always a crucial ingredient. See AJAKAIYE VS. OKANDEJI (1972) 1 SC 92; NSIRIM VS. NSIRIM (supra); GIWA VS. AJAYI (1993) 5 NWLR (Pt.294) 423; UGBOMOR VS. HADOMEH (1997) 9 NWLR (Pt. 520) 3.
Afortiori, the law is equally trite, that a plea of qualified privilege, when duly established, as in the instant case, tantamounts to a complete defense to a libel action. See OBIKOYA VS. UN PRESS LTD (supra); UBN LTD VS. OREDEIN(1992) 6 NWLR (Pt.247) 355; ADAM VS. WORD (1917) AC.

Hence, having resolved both issues against the Appellant, the appeal most inevitably is grossly unsuccessful, and same is hereby dismissed by me.

Consequently, the judgment of the Bayelsa State High Court delivered on December 15, 2010 in suit No. NHU/6/2006, by Hon. Justice L.M. Boufini, J; is hereby affirmed.
There shall be no order in regard to costs.

TUNDE OYEBAMIJI AWOTOYE, J.C.A.: I entirely agree.

ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the Judgment just delivered by my learned brother I.M.M. Saulawa, JCA, I agree with the reasoning and conclusion reached therein. I too affirm the Judgment of the Bayelsa State High Court in suit No. NHU/6/2006, by Hon. Justice L.M. Bonfini J. I also abide by all consequential orders including order as to cost.

Appearances:

Vicar I. Oguafor, Esq., with him, M. E. Jonnas, Esq. For Appellant(s)

F. Asotie, Esq., with him, N. Akujuo, Esq. For Respondent(s)