ARGUNGU v. IGBOELI (2021)

ARGUNGU v. IGBOELI

(2021)LCN/15153(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, March 26, 2021

CA/A/604/2017

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

MOHAMMED ARGUNGU APPELANT(S)

And

PROSPER IGBOELI RESPONDENT(S)

RATIO

IMPORTANCE OF THE PUBLICATION(COMMUNICATION) OF THE DEFAMATORY MATTER TO SOME PERSONS OTHER THAN THE PERSON INJURIOUSLY AFFECTED THEREBY

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) LPELR-2265(SC) at Pages 13-14 Para F-A 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 OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

ESSENTIAL INGREDIENTS OF LIBEL

The essential ingredients of libel are: 1. The words complained of must have been written; 2. The publication must be false; 3. The words must be defamatory or convey defamatory imputation; 4. The words must refer to the plaintiff; 5. It must be the defendant who published the words;.6. The onus is on the plaintiff to prove he was the one referred to in the alleged libel. See Guardian Newspapers Ltd & Anor V. Ajeh (2011) LPELR-1343(SC) at Page 5; (2011) 10 NWLR Part 1256 Page 574, per Rhodes-Vivour JSC. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

WHEN CAN A WORD OR STATEMENT BE SAID TO BE DEFAMATORY

Words are said to be defamatory where they have the effect of: (i) lowering the plaintiff in the estimation of right-thinking members of society generally, or (ii) exposing him to hatred, contempt or ridicule, (iii) causing other persons to shun or avoid him; or (iv) discrediting him in his office, trade or profession; or (v) injuring his financial credit. See Sun Publishing Ltd v Dumba (2020) 2 NWLR Part 1708 Page 325 at 343 Para A-C per Abiru JCA. The Supreme Court in the oft cited case of The Sketch Publishing Co Ltd & Anor V. Ajagbemokeferi (1989) 1 NWLR Part 100 Page 678; (1989) LPELR-3207(SC), per Wali JSC at P. 19 Para A-C, on the definition of a defamatory statement held: “A defamatory statement is defined in “Words and Phrases Legally Defined “Vol. 8.p. 28 as “a statement which, if published of and concerning a person, is calculated to lower him in the estimation of the right-thinking men or cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade, or business.” In an action for defamation, the onus is on the Plaintiff to prove that the words complained of conveyed a defamatory meaning to whom they were published.” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

EFFECT OF AN UNPROVED AVERMENTS IN PLEADINGS

It has been severally held that averments in pleadings, no matter their eloquence, unless where admitted by the opposite party, must be established or proved by evidence, failing which they must be discountenanced as unsubstantiated. They cannot be construed as evidence. See Ahmed v The Registered Trustees of Archdiocese of Kaduna of The Roman Catholic Church (2019) 5 NWLR Part 1665 Page 300 at 318 Para C-E per Okoro JSC; Omisore v. Aregbesola (2015) 15 NWLR Part 1482 Page 1 at 280 Para D-E; (2015) All FWLR Part 813 Page 1673 at 1735 Para F, per Nweze JSC; Odunsi v. Bamgbala (1995) 1 NWLR Part 374Page 641 at 656-657, Para H-A, per Ogwuegbu JSC. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

HOW TO DETERMINE WHETHER A PLEA OF QUALIFIED PRIVILEGE ARISE

The Supreme Court, in the case of Iloabachie V. Iloabachie (2005) LPELR-1492(SC) held, per Pats-Acholonu JSC, at Page 17 Para A-C: “A privileged occasion arises if the communication is of such a nature that it could be fairly said that those who made it had an interest in making a communication and those to whom it was made had a corresponding interest in having it made to them. Where those two co-exist the occasion is privileged….In order to destroy or neutralize the defence of privilege or qualified privilege, it is incumbent on the appellant to prove malice.” It was further held in the same case by the same respected Jurist, as follows: “Consider too the case of Pullman v. Hill Ltd. (1891) 1 QB. Where Lord Esher, M. R. said:- “…Equally too, the Court should consider the motive for the publication to examine whether it is actuated by purely altruistic principles or tendencies, or malicious and injurious motive.” 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, 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.” It was similarly held, in the case of Mainstreet Bank v Binna (2016) 2 SCNJ Page 422 at 442 lines 8-20, per Kekere-Ekun JSC, similarly reading the lead judgment and adopting the dictum in Chief S.B. Bakare v Alhaji Ado Ibrahim (1973) 6 SC 147 at 152-153 where it was held: “If the publication is shown to be false, malice is inferred by operation of law, it is enough to show that the words complained are completely false…Where defamatory words are published without lawful excuse, the law conclusively presumes that the Defendant is motivated by what is often described as malice in law, accordingly, the Plaintiff is usually not required to give particulars of the facts on which he seeks to rely in support of the allegation that the words were published ‘maliciously’ ”. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

WHETHER IN AN ACTION FOR LIBEL, THE PLAINTIFF MUST SET FORTH IN HIS STATEMENT OF CLAIM THE EXACT WORDS COMPLAINED OF TO BE DEFAMATORY OF HIS PERSON.

It is well settled that a Plaintiff in an action for libel must set out in his Statement of Claim the exact words complained of to be defamatory of his person. In the oft cited authority of Okafor v Ikeanyi (1979) 3-11 SC Page 65 at 68 Lines 4-15 per M. Bello JSC (as he then was), it was held as follows: “It has always been the law in England that in an action of libel the precise words of the document are material within the meaning of the rule regulating the content of pleading in that country and it has always been the practice to set out verbatim the words complained of in the statement of claim ….. In a recent case, the Court of Appeal in England has stated that where libel arises out of a long article in a newspaper, the Plaintiff must set forth in his Statement of Claim the particular passages which he complains of and if he complains of the whole publication, then the whole publication must be set forth in the Statement of Claim” It was also held in Onyejike V. Anyasor (1992) NWLR Part 218 Page 437 at 450 Para Para E-F, per Katsina-Alu, JCA (as he then was), that: “In a libel action, the words complained of must be pleaded. The words used are the material facts and they must therefore be set out in the Plaintiff’s pleadings to enable the Court determine whether they constitute a ground of action. The law requires him to set out the words in his pleadings with reasonable certainty … However, if the action is in respect of certain libelous passages in a letter, the Plaintiff is not required to set out the whole letter, it is sufficient to set out the passages complained of only provided their meaning is clear.” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

PRINCIPLES TO OBSERVE IN AN AWARD FOR DAMAGES IN LIBEL

The principles to observe in an award for damages in libel were stated by the Supreme Court in the case of Guardian Newspapers Ltd v Ajeh (2011) 10 NWLR Part 1256 Page 574, also found at (2011) LPELR – 1343 (SC) Page 17 Para B-C, per Rhodes-Vivour JSC as follows: “In libel cases, once the offensive article is found to be libelous of the Plaintiff, damages follow and the damages awarded is general damages. On the other hand, where there is direct pecuniary benefit from the offensive publication punitive damages are awarded…The award of damages, once libel is established is an exercise of discretion by the learned trial Judge, and as with all orders etc granted on the exercise of discretion the trial Judge must consider the following factors when exercising his discretion: (a) The standing of the Plaintiff in society (b) The nature of the Libel (c) The mode and extent of the publication (d) The refusal to retract or render an apology to the Plaintiff (e) The value of the local currency” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

PRINCIPLES THAT WOULD BE CONSIDERED BY AN APPELLATE IN DECIDING WHETHER OR NOT TO INTERFERE WITH THE DISCRETION OF THE LOWER COURT WITH REGARD TO THE AWARD OF DAMAGES

On the powers of the Court to interfere with the discretion of the lower Court with regard to the award of damages, the learned Jurist, Rhodes-Viviour JSC had this to say: “This Court, as indeed an Appeal Court is always loath to interfere with the discretion of the learned trial Judge but would be compelled to interfere if it finds that the Judge acted upon an erroneous estimate, or a wrong principle of law was applied, such as taking into account some irrelevant factors or leaving out some relevant facts or that the award is either so ridiculously low or so ridiculously high that it must have been a wholly erroneous estimate of damage. Fabiyi JSC, concurring, held: “This Court has developed certain principles which should serve as guide in the determination of what is adequate damage in libel cases. From the decisions in His Highness Uyo II v. N.N.P.L (1974) 6 SC 103; (1974) NSCC 304; Offoboche v. Ogoja Local Government (2001) 7 SC (Pt.111) 107; the following facts ought to be taken into consideration: – 1. The award must be adequate to repair the injury to the plaintiff’s reputation. This does not require proof of pecuniary loss. 2. The award must atone for the assault on the plaintiff’s character and pride which were unjustifiably invaded. 3. It must reflect the reaction of the law to the impudent and illegal exercise in the course of which the libel was unleashed by the defendants. 4. It must also take into account the loss of social esteem and the natural grief and distress to which the plaintiff may have been put. 5. The fact that the defendants did not show any remorse and did not care whether or not the plaintiff’s reputation or feeling was injured. 6. The social standing of the plaintiff must also be considered. 7. The rate of inflation which has adversely affected the value of the national currency. As a matter of general principle, an Appellate Court would not interfere with an award of damages by a Trial Court simply because if faced with a similar situation and circumstance it would have awarded a different amount…. Libel is a wrong to which the law imputes general damages. Once a plaintiff proves that a libel has been published of him without legal justification, his cause of action is complete. He needs not prove that he has suffered any resulting actual damage or injury to his reputation as such damage is presumed… An award of general damages must be adequate to assuage for the injury to the plaintiff’s reputation. It must atone for the assault on the plaintiff’s character and pride which were unjustifiably invaded.” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal by the Appellant, as Defendant before the lower Court, against the judgment of the High Court of the Federal Capital Territory delivered on the 9th day of May, 2018, by Hon. Justice S.E. Aladetoyinbo, in favour of the Respondent, Dr. Prosper Igboeli.

The Respondent, as Plaintiff at the lower Court, had by his Statement of Claim filed on 24/9/2013, sued the Appellant, his former landlord, in respect of the property at No. 39 T.Y. Danjuma Street, Asokoro, FCT, seeking the following reliefs:
“1. A sum of N2,000,000,000.00 (Two Billion Naira) on the footing of aggravated and exemplary damages for the libelous letter of 3rd October, 2012 addressed to the Medical and Dental Practitioners Investigative Panel by the Defendant against the Plaintiff which said letter has attracted embarrassment to the Plaintiff and negatively affected the public estimation of his person and qualification as a medical practitioner and reduced the level of patients’ patronage of his In vitro- Fertilization (IVF) and Fertility Clinic.
2. AN

ORDER directing the Defendant to make and/or render public, clear, categorical and unequivocal retraction of said malicious and libelous letter.
3. AN ORDER directing the Defendant to render and/or tender an unreserved apology in writing to the Plaintiff for the said letter.
4. AN ORDER of perpetual injunction, restraining the Defendant, either by himself, his officers, agents, privies, servants or acting through any person or persons howsoever or by any means whatsoever from publishing or further writing, disseminating the said libelous publications/writings concerning or relating to the Plaintiff and his medical practice.
5. The cost of this suit which is N1,000,000.00 (One Million Naira).
6. And for such FURTHER ORDER(S) that the Honourable Court may deem fit to grant in the circumstances of the case.”

The Appellant, by his Amended Statement of Defence filed on 23/2/2015, denied the claim, raising the defences of justification and privileged communication.

At the hearing, the Respondent, a Consultant Obstetrician and Gynecologist, testified as PW1, in addition to another witness, Dr. Ikechukwu Onwuka Kalu, also a Medical

Doctor and Consultant Obstetrician/Gynecologist, who testified as PW2. Eighteen documents were tendered in evidence at the trial by the Respondent. The Appellant did not testify, neither did he call any witness. Following conclusion of evidence and the exchange of written addresses by both sides, the trial Judge delivered her judgment, holding the letter written by the Appellant to the Medical and Dental Council of Nigeria (MDCN), of and concerning the Respondent, to be defamatory. She rejected the defences of Justification and Qualified Privilege raised by the Appellant and awarded the sum of One Hundred Million Naira (N100,000,000.00) as damages against the Appellant, who was ordered to write a letter of retraction to MDCN and another to the Respondent.

Dissatisfied, the Appellant filed a Notice of Appeal on 23/5/2017 of 21 grounds, and a subsequent one on 4/7/2017 of 22 grounds, opting in his Appellant’s Brief of Arguments to rely on the latter Notice.

ISSUES FOR DETERMINATION
Appellant
The issues for determination distilled by the Appellant’s Counsel, Shareef Mohammed Esq in the Appellant’s Brief of Arguments filed on

11/4/2018 and deemed as properly filed by this Court on 30/10/2018, are the following:
“1. Whether there was publication of the alleged defamatory material having regard to the evidence led.
2. Whether the trial Court was right by holding that the Appellant was liable in damages for publication of the alleged defamatory matter, the substance of a complaint to the Medical and Dental Practitioners Disciplinary Committee without more.
3. Whether the learned trial Judge was right in not considering the defences of the appellant.
4. Whether the defence of qualified privilege availed the appellant.
5. Whether the tenancy agreement (Exhibit ‘11”) executed between the Appellant’s agent — Clem Eze & Co and the Respondent herein In respect of the Appellant’s property No.39 TY Danjuma street Asokoro, Abuja in which the Appellant’s agent to the full knowledge of the Respondent, falsely presented itself as the landlord, collected N67m rent in its name, issue receipt in its name etc was lawful in the absence of a prior written authority of the appellant to his agent to so do and the Respondent can

rightly be said to be a lawful tenant of the Applicant.
6. Whether the Court below was right in relying on paragraphs of the Appellant’s petition to the Medical and Dental council (Exh.G1) not pleaded and reproduced in the statement of claim to establish the tort of libel against the appellant.
7. Whether the N100m monetary award has any basis and assuming but not conceding that it has, same was not excessive against the Appellant and ought to attract 10% interest.
8. Whether the judgment is against the weight of evidence”.

Respondent
The issues for determination formulated by the Counsel to the Respondent, Chris Kelechi Udeoyibo Esq, in the Respondent’s Brief of Arguments filed on 21/3/19 and deemed properly filed on 3/2/21 are the following:
“1. Having regard to the pleadings and evidence led at the trial, whether the lower Court was right in holding that the Appellant was liable for the publication of defamatory material in Exhibit G1 to the Medical and Dental Practitioners Disciplinary Committee.
2. Whether the lower Court was right in holding that the defences of justification and qualified

privilege did not avail the Appellant.
3. Whether the lower Court was right in holding that the Respondent entered the Appellant’s premises after executing a valid tenancy agreement (Exhibit B1) with Appellant’s agent of (Clem Eze & Co) and payment of rent and therefore was in lawful occupation of the premises.
4. Whether the paragraphs of the libelous Petition (Exhibit G1) relied on by lower Court in making a finding of tort of libel against the Appellant were not pleaded and reproduced in the Plaintiff/Respondent’s pleadings.
5. Whether the award of damages in the sum of One Hundred Million Naira (N100,000.000:00) with post judgment interest of 10% against the Appellant was wrong.
6. Whether the judgment of the trial Court is against the weight of evidence”.

The issues for determination raised by both Counsel are similar, I note. I shall thus adopt as the issues for determination, an amalgam of the issues raised by both Counsel, commencing with the 1st two issues formulated by the Appellant’s Counsel.

The salient issues that I thus consider that arise for determination are, in consequence,

the following:
“1. Whether there was Publication of the alleged defamatory material having regard to the evidence led.
2. Whether the trial Court was right by holding that the Appellant was liable in damages for publication of the alleged defamatory matter to the Medical and Dental Practitioners Disciplinary Committee.
3. Whether the paragraphs of the libelous Petition (Exhibit G1) relied on by the lower Court in making a finding of the tort of libel against the Appellant were pleaded and reproduced in the Respondent’s pleadings.
4. Whether the award of damages in the sum of One Hundred Million Naira (N100, 000.000:00) with post judgment interest of 10% against the Appellant was wrong.
5. Whether the judgment of the trial Court is against the weight of evidence”.

The 1st issue for determination:
Whether there was Publication of the alleged defamatory material.

Appellant’s Submissions
Learned Counsel to the Appellant, citing Nsirim v Nsirim (1990) 3 NWLR Part 138 Page 285, submitted that the essential part of the cause of action in libel is publication of the alleged libelous material. The

mere fact that a Defendant admits writing and publishing the words complained of, does not constitute publication for the purpose of a legal action in libel. He denied that publication was proved, contending that if a mere petition or complaint to a statutory body, as the MDCN, against its members will be held to amount to publication, citizens of this nation who have genuine grounds will, out of fear of being held liable in damages for libel, think twice before making a complaint to the Council. The Court below was therefore in error when it held that the Medical Council is a third party and that by admitting writing the petition or Exhibit G1 to the Council, the Appellant is liable in libel, holding that the tenancy issue between the parties had nothing to do with the Council and therefore ought not to have been written to it. Counsel contended further that neither the Medical Council nor its members were called to testify to say what effect Exhibit G1 had on them with regard to the Respondent. No other person, including PW2 testified about reading exhibit G1. PW2’s evidence was therefore hearsay.

Counsel argued that the Appellant petitioned the

Medical Council, who, in exercise of its statutory function, found the petition worthy of being looked into, availed the Respondent of a copy with a covering note, to respond to the allegations contained thereon (Exhibit G1). It was thus the Medical Council, which wrote the Respondent along with a copy of the Appellant’s petition (Exhibit G1), that was responsible for the publication and not the Appellant. Even if the Council is held to be a third party, it ought to have been brought to testify that they read the petition or the words complained of and in the absence of this, mere admittance of authorship of Exhibit G1 is not enough to ground libel. He again contended that that there is no admissible evidence of the publication, as the document addressed to it is a public document which can only be proved by a certified true copy. He cited Alamieyeseigha v. FRN (2006) 16 NWLR (Pt. 1004) 1 at 106 -107 paras. F -C Ogunbiyi J.C.A

Respondent’s Submissions
Learned Counsel to the Respondent contended to the contrary, submitting that the Appellant admitted publishing the defamatory petition, however pleading the defences of justification and

qualified privilege. He similarly cited the definition of publication given in Nsirim v Nsirim Supra and Gatley on Libel and Slander

RESOLUTION
The letter containing the alleged libel is Exhibit G1, dated 3rd of October, 2011 and written by the Appellant to the Medical and Dental Practitioners Disciplinary Council had the heading:
“COMPLAINT OF GROSS PROFESSIONAL MISCONDUCT, DISHONESTY, DECEPTION AND BRINGING THE COUNCIL AND THE PROFESSION INTO DISREPUTE AGAINST DR. PROSPER IECHUWU IGBOELI AND DR. EVANS ONYEKELE FOR CRIMINAL CONSPIRACY, BREACH OF TRUST, PUBLIC NUISANCE, FRAUDULENT REGISTRATION OF AND USING MY PROPERTY COMPRISING OF 2 NOS. BEDROOMS AND 1 NO. 6 BEDROOMS DETACHED HOUSES EACH WITH A 2 BEDROOM BOY’S QUARTERS AND GENERATOR HOUSES SITUATED AT NO. 39 T.Y DANJUMA STREET, ASOKORO,, ABUJA, AS AN ILLEGAL INFERTLITY HOSPITAL WITHOUT MY PRIOR CONSENT OR APPROVAL”.

The letter, as pleaded and as testified by the Respondent, was received by the Committee, who set up an Investigative Panel and wrote to the Respondent vide a letter of 25th July, 2012, forwarding a copy of the petition to him and demanding his response. The authorship and

delivery of the letter by the Appellant to the Medical and Dental Council of Nigeria (MDCN) was admitted by the Appellant in Paragraphs 17 and 18 of his Amended Statement of Defence, at Pages 129-130 of the Record.

The lower Court, in holding publication proved, referred for its definition of publication to the cases of Ukachukwu v Uzodinma (2007) 9 NWLR Part 1038 Page 187 and Nsirim v Nsirim Supra and held:
“Paragraphs 14 and 15 of the Statement of Claim of the Plaintiff stated unequivocally that the Defendant wrote Exhibit G1 to the Medical and Dental Council of Nigeria, some of the paragraphs of Exhibit G1 were reproduced i.e paragraph 15 which the Defendant claimed damaged his character. Paragraphs 17,18 and 26 of the amended Statement of Defence of the Defendant admitted publishing Exhibit G1 to the Medical and Dental Council of Nigeria. Part of paragraphs 17, 18 and 26 of the Amended Statement of Defence are hereby reproduced as follows………In paragraph 17, 18, 26 and 27 of the Amended Statement of Defence, the Defendant admitted writing Exhibit G1, the libelous letter to the Medical and Dental Council who is a 3rd party

in this case. In the face of such admission the Plaintiff did not need to prove publication where the Defendant has admitted it”

I have no reason to disagree with this very lucid reasoning of the lower Court. The Appellant, I note, never denied in his pleading that he wrote the offending letter (Exhibit G1). He also never denied that the letter was delivered to the Council and indeed admitted same, as pointed out above.
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) LPELR-2265(SC) at Pages 13-14 Para F-A 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.

It is clear from the foregoing that the fact of publication of the alleged defamation was proved, the letter having been delivered to the Council, as admitted by the Appellant and as acknowledged by the Council in their correspondence to the Respondent.

It is a misconception of the law by the Appellant to regard the letter as a public document

for which a certified true copy is required.
Section 102 of the Evidence Act 2011 (as amended) defines public documents as:
(a) documents forming the official acts or records of the official acts of-
(i) the sovereign authority; (ii) official bodies and tribunals; or (iii) public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and
(b) public records kept in Nigeria of private document.
Section 103 of the said Act states:
“All documents other than public documents are private documents.”
The Medical and Dental Council of Nigeria, by its mandate, is a body set up to regulate the practice of Medicine, Dentistry and Alternative Medicine. Exhibit G1, written by the Appellant to the Council, not being a public body as contemplated by the Sections above, is thus a private and not a public document, for which there was no requirement to produce a certified true copy of same, I hold.

In any event, Exhibit G1 and its contents were admitted by the Appellant. The only reason behind the requirement by the law for the production of certified true copies of public

documents is to ensure their authenticity and to preserve original copies for posterity. There is no magic to it. I also hold that there was publication of the alleged defamatory material and this, by legally admissible evidence. Consequently, the 1st issue for determination is resolved against the Appellant.

The 2nd issue for determination is:
“Whether the trial Court was right by holding that the Appellant was liable in damages for publication of the alleged defamatory matter to the Medical and Dental Practitioners Disciplinary Committee”.

This issue involves a determination of whether the defences pleaded by the Appellant of Justification and Qualified Privilege were available to the Appellant but were not considered by the lower Court, before holding him liable in damages for libel.

It is apt at this stage to go into the facts leading to the institution of the suit before the lower Court, as presented by the Respondent in his Statement of Claim and in his witness statement on oath.

The case of the Respondent is that sometime in September, 2009, one Justina Onuoha, a property agent, introduced him to the

Appellant’s property at No 39 T.Y. Danjuma Street, Asokoro District, FCT, Abuja, for the purpose of renting the same. The property had a “To Let” sign on the sign board of “Clem Eze & Co”. After inspecting the property, he indicated his interest and was taken to the Appellant, who he notified of his desire to take the property for a long lease. The Appellant requested for assurance of the qualification of the Respondent as a medical doctor and the use to which the property would be put. In consequence, he (Respondent) wrote a letter of undertaking and an FCTA Temporary Approval was obtained for the purposes of a clinic. The transaction was almost concluded with the Appellant, who, at the point of travelling overseas, to London, directed him to his (Appellant’s) agent, Clem Eze & Co, instructing the said agent not to hand over the property to the Appellant until he had paid all the agreed rent en-bloc and in advance for the three-year period. The Respondent, in consequence, paid the sum of N67, 650,000 (Sixty Seven Million, Six Hundred and Fifty Thousand Naira) by certified bank draft dated 6th October, 2011 representing

three years rent of N66 Million, at an annual rent of N22 Million, with the added commission of N1,650,000 (One Million Six Hundred and Fifty Thousand Naira) as agency fees, all issued in the name of the agent, Clem Eze & Co. He was issued with a receipt by the said firm for the amount paid.

Subsequently, a tenancy agreement (Exhibit B1) was executed between Clem Eze & Co and M. & M. Hospital Ltd for the term of three years, from the 5th of October, 2009 to 4th of October 2012.

After execution of the Tenancy Agreement, however and the payment of the rent demanded, the Appellant called his agent, (Clem & Eze) and informed him of his intention to terminate the agreement and withdraw from the transaction. He instructed Clem & Eze to refund the rent paid by the Respondent and retrieve the key of the premises. In spite of advice from his agent of the consequences to both the Respondent, who had moved his equipment to the hospital, and the Appellant for breach of contract, the Appellant insisted, writing petitions to the Police and to the EFCC accusing him of criminal trespass and alleging that the Respondent was into unethical medical practice and

fraudulently using the premises in connivance with his agent and without his (Respondent) approval and that of FCTA.

Based on the Appellant’s petition against the Respondent to the Inspector General of Police, an agreement was reached by the parties, viz Clem Eze, the Appellant and the Respondent, at the instance of one DCP Dan Bature, (now D.I G Police) at the Force Headquarters, Abuja, that the Appellant would refund all the monies paid as rent once the Respondent packed out of the premises. In compliance, the Respondent vacated the premises in May, 2011. Several attempts by the Respondent to hand over the keys to the Appellant between June and July, 2011 in order to get a refund of his rent, proved abortive, leading to his filing of SUIT NO. FCT/ABJ/CV/569/11 against them both for breach of contract and refund of his rent paid. The Court entered judgment, per Sadiq J, on Wednesday, 21st March, 2018, in favour of the Respondent and against the Appellant and Clem Eze & Co, his agent.

When the Police Investigation Report of the Appellant’s petition to them was eventually released, dated 5th December, 2012 (Exhibit E3), he was absolved

by the Police of all the damaging allegations in the Appellant’s Petition, which letter concluded that “there is no evidence that can establish a case of criminal conspiracy, fraudulent dealings in property, public nuisance, criminal breach of trust, cheating and criminal trespass against the suspect, Clem & Eze, Dr. Prosper I. Igboeli.”

Long after the Respondent had vacated the Appellant’s premises and was waiting to be refunded his rent, the Appellant wrote the Petition in question dated 3rd October, 2011 to the Medical and Dental Council of Nigeria (hereafter referred to as “the Council”) on the personal character and medical practice of the Respondent (Exhibit B1). The Council wrote a letter to him of 25th July, 2012 forwarding a copy the petition written by the Appellant and demanding his response, to enable the Medical and Dental Council of Nigeria Investigative Panel carry out investigation. He was directed to forward to them his response to the allegations and a copy of his practicing licence, among others. Following his response, he was informed, by letter dated 21st December, 2012 written to him, that the

Disciplinary Panel considered the matter and found that it was not within its jurisdiction and therefore dismissed the matter. In consequence of the foregoing, he instituted the case before the lower Court.

The Appellant, in his response, averred in his Statement of Defence, that he was a former principal of Clem Eze & Co and agreed that he authorized Clem Eze, his agent and the Principal Partner to source for tenants for the said property. He averred that he refused the use of the premises for a hospital but that the Respondent agreed to obtain a change of purpose certificate from the FCT Minister. He denied that he authorized his agent to let the property to the Respondent and disclaimed the tenancy agreement entered into between the Respondent and the agent. He accused them of fraud, denying that his agent had his consent to execute any tenancy agreement with the Respondent or to collect rent on his behalf. He agreed that he petitioned the Medical and Dental Council of Nigeria, complaining about the “dishonorable involvement (which is unbecoming/indecent … as a Medical Doctor) in the criminal trespass and illegal occupation of his property

under the fraudulent tenancy without his consent…”
He denied that the petition was defamatory and that it was “in exercise of his obligation to report the criminal trespass and unlawful occupation of his property to carry out their corresponding duties to receive such petitions and investigate same with a view to sanctioning the likes of the Plaintiff so as not to bring the medical profession into disrepute as a result of the unwholesome conduct of members”. He thus pleaded the defenses of justification and privileged communication.

Appellant’s Submission
Learned Counsel, referring to the case of Sketch Publishing Co V. Ajagbemokeferi (1989) 1 NWLR Part 100 Pg. 678 at 695 para A-C defined the tort of libel and its requirements, which tort, he said, must be established before any defence of qualified privilege or justification arises. He denied that the petition was defamatory of the Respondent. It was also not proved that the words complained of were false or that they lowered the estimation of the Respondent in the eyes of right-thinking members of the public. The testimony of those to whom it was published was

not in evidence. He submitted that in a libel action, the evidence of witnesses other than the person defamed is necessary to prove the effect the words complained of had on the Respondent which admissible evidence was not adduced in the instant case on appeal. Just as in the case of Nwadinobi V. Botu (2000) 9 NWLR (Part 672) 220 at 229 paras A-B; where it was held that an alleged publication of libelous words to the police in the course of lodging a complaint cannot form the basis of a claim for libel, so also the Appellant cannot be held liable, as the alleged libelous words were published in the course of lodging a complaint with the Medical and Dental Council.

Respondent’s Submission
The Respondent’s Counsel, similarly defining the tort of libel, submitted that the onus lies on the person alleging libel to show that the published words complained of are defamatory or that they convey a defamatory imputation. However, where the words complained of are defamatory in their natural and ordinary meaning, the Plaintiff has no legal duty to lead any evidence to show additional defamatory meaning as understood by persons possessing some

peculiar facts. He cited Union Bank (Nig) Ltd v. Oredein (1992) 6 NWLR (Pt.247) 355 at 372. He pointed out that the Appellant admitted publishing the defamatory petition, pleading the defences of justification and qualified privilege. The Appellant however did not lead any evidence in support of his defences, choosing instead to rest his defence on the Respondent’s case. Submitting that, though the circumstances under which the defamatory letter was written is privileged, the qualified privilege is not absolute and is demolished once evidence is led, as in the instant appeal, to show that the publication was false and tainted with malice or bad faith. In order to destroy or neutralize the defence of qualified privilege, the law requires the Plaintiff to prove malice. Where it is necessary, a reply to a defence of qualified privilege should resonate with facts and particulars that show malicious intention of the publisher of the statement. The defence of justification also failed as the Respondent equally proved at the trial that all the allegations in the Petition are false, citing the case of Iloabachie v. Iloabachie (2005) 13 NWLR (Pt.943) 695 at 734.

He distinguished the cases cited by the Appellant, pointing out that the Appellant presented no evidence in proof of his defences, also pointing out that letters written to the Police or an investigative panel are only protected by qualified privilege when the allegations are true, honest, made in good faith and without malice. It is for the Court to look at the surrounding circumstance in the case to see whether privileged occasion will avail the Appellant as a defence and this Court can determine whether the Appellant was under any duty to make the communication, thereby coming within instances of privileged occasion.

Even if the occasion is privileged, Counsel argued, the defence of qualified privilege will not avail the Appellant as the defamatory words were proven to be false, irrelevant, inappropriate and actuated by malice. Making reference to the Police Investigation Report by the Deputy Inspector-General of Police (Exhibit E3), he stated that from the documentary and oral evidence of PW1 and PW2, it was established that the Appellant deliberately wrote the said malicious and false petition, driven by malice, ill-feeling and with the intention of

damaging the name and reputation of the Respondent and his medical practice, without any justification.

RESOLUTION
The heading of Exhibit G1, the letter alleged by the Respondent to be defamatory, already set out in the resolution of issue 1 above, is as follows:
“COMPLAINT OF GROSS PROFESSIONAL MISCONDUCT, DISHONESTY, DECEPTION AND BRINGING THE COUNCIL AND THE PROFESSION INTO DISREPUTE AGAINST DR. PROSPER IKECHUKWU IGBOELI AND DR. EVANS ONYEKELE FOR CRIMINAL CONSPIRACY, FRAUDULENT DEALINGS IN PROPERTY, CRIMINAL TRESPASS, AIDING AND ABETTING, CRIMINAL BREACH OF TRUST, PUBLIC NUISSANCE, FRAUDULENT REGISTRATION OF AND USING MY PROPERTY COMPRISING OF 2 NOS. 5 BEDROOMS AND 1 NO. 6 BEDROOMS DETACHED HOUSES EACH WITH A 2 BEDROOM BOY’S QUARTERS AND GENERATOR HOUSES SITUATED AT NO 39 T.Y. DANJUMA STREET, ASOKORO, ABUJA, AS AN ILLEGAL INFERTILITY HOSPITAL WITHOUT MY PRIOR CONSENT OR APPROVAL”.

It was again written in Paragraphs 10 and 11 of the said letter as follows:
10. It would appear that after failing to obtain Hon. Minister’s Certificate for the purpose, Dr. Prosper colluded with Mr. Clem Eze claimed to be both the owner

and the landlord of my three houses and also illegally allowing the houses to be used as an illegal hospital. Please see Appendix A, for a copy of the fraudulent Tenancy Agreement.
11. In furtherance of their fraudulent conspiracy, they enlisted the support and help of Dr. Evans Onyekeke, Registrar, F.C.T. Private Health Establishments, Registration and Monitoring Committee, Federal Capital Territory Administration, Health Human Services Secretariat, who has given them a certificate of registration dated 3rd November, 2009 at my houses without my prior knowledge and consent as the bonafide owner of the houses, and without Hon. Minister’s Certificate for a change of purpose. Please see Appendix B for a copy of the fraudulent certificate of registration of the Hospital at my three houses”.

Further, in Paragraph 32 of the said letter, were written the following words:
“…Dr. Prosper, in utter desperation to move into my houses at all costs, did everything possible, no matter how fraudulent and criminal to allow him move into the premises. Records are extant to prove that, as far as I am concerned, Dr. Prosper was nothing but

a fraudulent and criminal trespasser of my premises, and there was no way for him to wish that away”.

The essential ingredients of libel are:
1. The words complained of must have been written;
2. The publication must be false;
3. The words must be defamatory or convey defamatory imputation;
4. The words must refer to the plaintiff;
5. It must be the defendant who published the words;
6. The onus is on the plaintiff to prove he was the one referred to in the alleged libel.
See Guardian Newspapers Ltd & Anor V. Ajeh (2011) LPELR-1343(SC) at Page 5; (2011) 10 NWLR Part 1256 Page 574, per Rhodes-Vivour JSC.

in the oft cited case of The Sketch Publishing Co Ltd & Anor V. Ajagbemokeferi (1989) 1 NWLR Part 100 Page 678; (1989) LPELR-3207(SC), per Wali JSC at P. 19 Para A-C, on the definition of a defamatory statement held:
“A defamatory statement is defined in “Words and Phrases Legally Defined “Vol. 8.p. 28 as “a statement which, if published of and concerning a person, is calculated to lower him in the estimation of the right-thinking men or cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade, or business.”
In an action for defamation, the onus is on the Plaintiff to prove that the words complained of conveyed a defamatory meaning to whom they were published.”

These words written by the Appellant of and concerning the Respondent are clearly defamatory of the Respondent, I hold. They are extremely damaging and injurious to his reputation and profession, portraying him as a trespasser, a criminal and fraudster.

The issue to be determined, however, is whether the defences raised by

the Appellant of Justification and Qualified Privilege were available to the Appellant and whether the trial Court was right to hold him liable in damages for defamation.

The lower Court, in arriving at its decision, set out the accusations against the Respondent as contained in the letter. It also set out depositions in the witness statement of the Respondent. Relying on the authority of Isitor v Fakarode (2008) 1 NWLR Part 1069 Page 601, it held that the evidence given by the Respondent, remaining unchallenged and uncontradicted by the Appellant, is to be accepted and acted upon by the Court. It referred to the admission in Paragraph 4 of the Appellant’s Amended Statement of Defence, in which the Appellant admitted that Clem Eze, trading under the name and style of “Clem Eze & Co” was his agent in respect of the instant transaction.

The Court, in holding the allegations of criminal trespass unproved against the Respondent, observed:
“… the Plaintiff gave oral evidence to the effect that he first contacted the Defendant and commenced negotiations about the lease of the property with him. The Defendant was

the person who directed him to his agent Clem Eze & Co. This evidence remained uncontradicted and unchallenged…In the eyes of the law all the transactions the Plaintiff made with Clem Eze in respect of tenancy agreement and payment of rent was actually made with the Defendant. “

The Court held that the Respondent “entered the premises after a valid tenancy agreement had been executed between him and the agent of the Defendant Clem Eze & Co and after payment of rent, the Plaintiff was in lawful occupation of the premises. The payment of rent made to Clem Eze was in law made to the Defendant”.

It concluded that whether or not the agent acted beyond the authority given to him by his principal were matters between them, holding the Respondent to be the victim, as it was the Appellant that directed him to his agent.

On the availability to the Appellant of the defence of justification, the Court held:
“Clem Eze & Co is authentic (sic) agent of the Defendant and therefore the Plaintiff cannot be referred to as fraudulent trespasser or as operating an illegal hospital in the premises of the

Defendant….the Defendant did not give evidence in support of his pleadings which means same had been abandoned, however the Counsel to the Defendant raised the defence of qualified privilege and justification in his final written address, such defence ought to be established by evidence and not by final written address which cannot be substitute (sic) for evidence. Justification as a defence in libel only protects the freedom of the Defendant to tell the truth, the Defendant must establish that Exhibit G1, the libelous letter is true in both substance and fact. This he had failed to do ….”

It thus held that the Respondent had established that the libel had been published of him without justification.

I cannot but agree. In the case of Sule v Orisajimi (2019) 10 NWLR Part 1681 Page 513 at 531 Para A-B the Supreme Court, per Aka’ahs JSC, reading the lead judgment, held:
“…where the defence pleads justification, it is admitting the fact that the publication is libelous of the Plaintiff but that the Plaintiff has no reputation whatsoever …”

As held by the lower Court, which observation was well

founded on the facts before it, the Respondent proved and as also admitted by the Appellant, that the firm of Clem Eze & Co was introduced to the Respondent as the Appellant’s agent for the letting of the property. The Respondent then proceeded to enter into a tenancy agreement with the agent.

As rightly held by the trial Judge, the fact that the tenancy agreement was in the name of Clem Eze as the Landlord, is not connotative of fraud between the Respondent and the agent, as averred by the Appellant in his Statement of Defence. This is because, as admitted by him in paragraph 4 of his Amended Statement of Defence, the said firm was his agent and as averred therein, “he orally authorized (through his Principal Partner, Mr. Clem Eze) to only source for tenants to rent or lease his aforesaid property and pursuant to which oral instruction, the sign board of Clem Eze & Co was placed on the property with the consent/authority of the Defendant”

Having introduced the Respondent to his agent and which agent entered into a tenancy agreement with the Respondent and who paid the agreed fee for tenancy, and a permit obtained to use

the premises as a hospital, the plea of justification was rightly rejected by the lower Court.

Furthermore, and as rightly observed by the lower Court, even though the Appellant, in his Statement of Defence, pleaded justification, he did not testify or call evidence to prove this defence. It has been severally held that averments in pleadings, no matter their eloquence, unless where admitted by the opposite party, must be established or proved by evidence, failing which they must be discountenanced as unsubstantiated. They cannot be construed as evidence. See Ahmed v The Registered Trustees of Archdiocese of Kaduna of The Roman Catholic Church (2019) 5 NWLR Part 1665 Page 300 at 318 Para C-E per Okoro JSC; Omisore v. Aregbesola (2015) 15 NWLR Part 1482 Page 1 at 280 Para D-E; (2015) All FWLR Part 813 Page 1673 at 1735 Para F, per Nweze JSC; Odunsi v. Bamgbala (1995) 1 NWLR Part 374Page 641 at 656-657, Para H-A, per Ogwuegbu JSC.
The law thus presumes the Appellant to have abandoned his defence and to have admitted the truth of the evidence of the Respondent, of the falsity of the publication.

On whether the Appellant was entitled to rely on the

plea of qualified privilege, the lower Court held:
“The Defendant had earlier written on same issues to the Police and EFCC but it appears the responses from these security agencies were not satisfactory to him, he decided to write Exhibit G1 to the Medical and Dental Council of Nigeria who has nothing to do with public interest. The Defendant wrote Exhibit G1 to MDCN with malice.”
It cited the case of Tsikata v Newspaper Publishing (1997) 1 All ER 655 where the Court observed:
“The defence of qualified privilege may be lost if the publication is misleading in the light of subsequent developments, as this may not be in the public interest or may be evidence of malice.”
The Supreme Court, in the case of Iloabachie V. Iloabachie (2005) LPELR-1492(SC) held, per Pats-Acholonu JSC, at Page 17 Para A-C:
“A privileged occasion arises if the communication is of such a nature that it could be fairly said that those who made it had an interest in making a communication and those to whom it was made had a corresponding interest in having it made to them. Where those two co-exist the occasion is privileged.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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…In order to destroy or neutralize the defence of privilege or qualified privilege, it is incumbent on the appellant to prove malice.”
It was further held in the same case by the same respected Jurist, as follows:
“Consider too the case of Pullman v. Hill Ltd. (1891) 1 QB. Where Lord Esher, M. R. said:-
“…Equally too, the Court should consider the motive for the publication to examine whether it is actuated by purely altruistic principles or tendencies, or malicious and injurious motive.”
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, 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.”
It was similarly held, in the case of Mainstreet Bank v Binna (2016) 2 SCNJ Page 422 at 442 lines 8-20, per Kekere-Ekun JSC, similarly reading the lead judgment and adopting the dictum in Chief S.B. Bakare v Alhaji Ado Ibrahim (1973) 6 SC 147 at 152-153 where it was held:
“If the publication is shown to be false, malice is inferred by operation of law, it is enough to show that the words complained are completely false…Where defamatory words are published without lawful excuse, the law conclusively presumes that the Defendant is motivated by what is often described as malice in law, accordingly, the Plaintiff is usually not required to give particulars of the facts on which he seeks to rely in support of the allegation that the words were published ‘maliciously’ ”.
In the instant case, it is not in doubt that the Medical and Dental Council of Nigeria is a body which has an interest in receiving complaints

against members of its body. The twin question, however, has also to be answered in favour of the Appellant and that is whether the Appellant had a moral duty to make the complaint to the Council and whether the letter was actuated by purely altruistic principles or from a malicious and injurious motive.
As observed by the lower Court, the Appellant had written similar letters to both the Police and the EFCC, the former of which had absolved the Respondent of any wrong-doing. Not satisfied, it again wrote to the Medical and Dental Council, making the same allegations. It is instructive to note that the letter to the Council was written well after the Respondent had vacated the premises and was demanding for a refund of his rent, and was after the Respondent had instituted an action against both the Appellant and his agent.
Exhibit G1 was clearly not written for any altruistic motive but was a venomous vendetta against the Respondent, for no apparent reason except to destroy the Respondent’s career as a doctor or possibly an attempt to stall or stop the Respondent from collecting a refund of his rent paid to his agent.
The defence of

qualified privilege has been proved by the Respondent as actuated by malice and thus “collapses”, I hold.

Contrary to the submissions of the Appellant’s Counsel, the lower Court did consider these defences put up by the Appellant in his Statement of Defence and rightly rejected them. I accordingly hold that the trial Court was right by holding that the Appellant was liable in damages for publication of the alleged defamatory matter to the Medical and Dental Practitioners Disciplinary Committee. I again resolve the 2nd issue for determination against the Appellant.

The 3rd issue for determination is:
“Whether the paragraphs of the libelous Petition (Exhibit G1) relied on by the lower Court in making a finding of the tort of libel against the Appellant were not pleaded and reproduced in the Respondent’s pleadings”.

Appellant’s Submissions
It is counsel’s contention that in an action for libel, the Plaintiff must set out in his Statement of Claim the exact words complained of to be defamatory, but that in the instant case, the passages mostly relied upon by the lower Court in finding the

Appellant liable, were not pleaded and reproduced in the Statement of Claim.

Respondent’s Submissions
The Respondent’s Counsel, however submitted that the Respondent pleaded the libelous letter of 3rd October, 2011 and set out paragraphs therein, which the lower Court held to be libelous. The fact that the lower Court also referred to other paragraphs in the Respondent’s pleadings which it found libelous is not a reason, he said, to fault or challenge its decision.

RESOLUTION
It is well settled that a Plaintiff in an action for libel must set out in his Statement of Claim the exact words complained of to be defamatory of his person.
In the oft cited authority of Okafor v Ikeanyi (1979) 3-11 SC Page 65 at 68 Lines 4-15 per M. Bello JSC (as he then was), it was held as follows:
“It has always been the law in England that in an action of libel the precise words of the document are material within the meaning of the rule regulating the content of pleading in that country and it has always been the practice to set out verbatim the words complained of in the statement of claim ….. In a recent case, the Court

of Appeal in England has stated that where libel arises out of a long article in a newspaper, the Plaintiff must set forth in his Statement of Claim the particular passages which he complains of and if he complains of the whole publication, then the whole publication must be set forth in the Statement of Claim”
It was also held in Onyejike V. Anyasor (1992) NWLR Part 218 Page 437 at 450 Para Para E-F, per Katsina-Alu, JCA (as he then was), that:
“In a libel action, the words complained of must be pleaded. The words used are the material facts and they must therefore be set out in the Plaintiff’s pleadings to enable the Court determine whether they constitute a ground of action. The law requires him to set out the words in his pleadings with reasonable certainty … However, if the action is in respect of certain libelous passages in a letter, the Plaintiff is not required to set out the whole letter, it is sufficient to set out the passages complained of only provided their meaning is clear.”

In the instant case, the Respondent set out in paragraphs 14, 15 and 37 of his Statement of Claim, portions in Exhibit G

alleged to be defamatory of him. Paragraph 14 contained the heading of the letter and which has been set out above.

In Paragraph 15 of the Statement of Claim it was averred as follows:
“That on pages 4 and 5 of the letter, particularly at paragraph 10 and 11 Mohammed Aliyu Argungu, made the following damaging and defamatory assertions which are the thrust of his allegations and character smearing writing against the person and reputation of Plaintiff as follows:
“10. It would appear that after failing to obtain Hon. Minister’s Certificate for the purpose, Dr. Prosper colluded with Mr. Clem Eze claimed to be both the owner and the landlord of my three houses and also illegally allowing the houses to be used as an illegal hospital. Please see Appendix A, for a copy of the fraudulent Tenancy Agreement.
11. In furtherance of their fraudulent conspiracy, they enlisted the support and help of Dr. Evans Onyekeke, Registrar, F.C.T. Private Health Establishments, Registration and Monitoring Committee, Federal Capital Territory Administration, Health Human Services Secretariat, who has given them a certificate of registration dated

3rd November, 2009 at my houses without my prior knowledge and consent as the bonafide owner of the houses, and without Hon. Minister’s Certificate for a change of purpose. Please see Appendix B for a copy of the fraudulent certificate of registration of the Hospital at my three houses”.

Paragraph 37
“Plaintiff states further that by the said damaging letter, the Defendant maligned and described the Plaintiff in this manner on page 10 paragraph 32 thereof in the following words:
“…Dr. Prosper, in utter desperation to move into my houses at all costs, did everything possible, no matter how fraudulent and criminal to allow him move into the premises. Records are extant to prove that, as far as I am concerned, Dr. Prosper was nothing but a fraudulent and criminal trespasser of my premises, and there was no way for him to wish that away”.

The lower Court held, at Pages 347 – 349 of the record, as follows:
“The basis of the tort of defamation is that a person has a right to the protection of his good name, reputation and the estimation in which he stands in the society of his fellow citizens.

Therefore, anybody who publishes anything injuring that good name, reputation or estimation commits the tort of libel if it is written, or slander, if oral…..The libelous letter is attached to Exhibit G1, the heading of the letter can be summarized as follows:
“A. Complaint of Gross Professional Misconduct, Dishonesty, Deception and bringing the council and the profession into disrepute against Dr. Prosper Ikechukwu Igboeli.
B. And criminal conspiracy, fraudulent dealings in property criminal trespass, aiding and abetting, breach of Trust, Public nuisance, fraudulent registration of using my property… as an illegal infertility Hospital without any prior consent and approval.
C. The offending paragraphs of the said letter are paragraphs 10, 11, 14, 16, 17, 27 and 32, same have earlier been reproduced in this judgment. The contents of those paragraphs tend to support the heading of the letter Exhibit G1 are capable of conveying defamatory meaning is a question for the Judge to determine in other words, it is not the responsibility of the parties to determine whether the consents of exhibit G1 as enumerated above are

defamatory or not”.

The lower Court, citing decided cases in resolution of whether the words were defamatory, thence held:
“The Court hereby comes to the conclusion that the heading of the letter written by the Defendant to Medical and Dental Council of Nigeria Exhibit G1 and paragraphs 10, 11, 14, 16. 17, 27 and 32 are defamatory against the Plaintiff.”

Further on, in its judgment, at Page 350 of the Record, held:
“The libelous words published by the Defendant against the Plaintiff is actionable per se because same imputed criminal offences against the Plaintiff which he never committed. The following criminal offences were imputed against the Plaintiff in Exhibit G1.
(a) Criminal conspiracy
(b) Fraudulent dealing in property
(c) Criminal trespass
(d) Criminal breach of trust
(e) Operating an illegal infertility Hospital
(f) Illegally allowing the houses to be used as an illegal hospital
(g) Gross Professional misconduct
(h) Fraudulent and criminal trespass
The above criminal offences which were never committed by the Plaintiff were imputed against the Plaintiff by the Defendant

recklessly therefore the libel is actionable per se”

From this finding above, it is patent that in arriving at its conclusion, the lower Court relied on the pleaded paragraphs in the Respondent’s Statement of Claim. Any reference that may have been made to any other paragraphs in the letter, which paragraphs were not pleaded or set out, do not detract, I hold, from the germane conclusions made by the lower Court of the tort of libel contained in the pleaded paragraphs and which were explicitly set out.

I accordingly hold that the paragraphs of the petition (Exhibit G1) relied on by the lower Court in making a finding of the tort of libel against the Appellant were pleaded and reproduced in the Respondent’s pleadings. I again resolve the 3rd issue for determination against the Appellant.

The 4th issue for determination, is:
“Whether the award of damages in the sum of One Hundred Million Naira (N100,000.000.00) with post judgment interest of 10% against the Appellant was wrong”.

Appellant’s Counsel
Learned Counsel argued that a Plaintiff who alleges defamation must lead credible evidence in support

of his claims, to be entitled to damages, citing the case of Iwueke v. IBC (2005)17 NWLR Part 955 Page 457 on the general principles as applied to liquidated and unliquidated damages. He argued in the alternative, that in the event that the Respondent is held to have no need to prove that he suffered any damage, the award of N100 million was excessive and that the interest of 10% awarded ought not to have been awarded, as the same was not an issue for contemplation in libel cases. Even if it can be granted, it was excessive, being the highest percentage allowed under the Federal Capital Territory Civil Procedure Rules.

Respondent’s Submission
In his response, learned Counsel to the Respondent submitted that the law is firmly settled that every libel is of itself a wrong to which the law imputes general damages. Where a Plaintiff proves that a libel has been published of him without legal justification, his cause of action is complete and he needs not prove that he has suffered any resulting actual damage or injury to his reputation for such damage is presumed by the law, citing C.R.S.N. Corporation V. Oni (1995) 1 NWLR (Part 371) 270 at 292

– 293. The award of damages, he said, is at the discretion of the Court who takes into consideration factors such as the position and social standing of the Plaintiff; the nature of the libel and its effect, the attitude/conduct of the Defendant, the rate of inflation etc.

It was Counsel’s further submission that, given the status of the Respondent, the lower Court was entitled to award the damages it did.

RESOLUTION
The lower Court, in awarding damages observed:
“In the instant case, the Respondent is a renowned Medical Practitioner of International repute, licensed to practice both in Nigeria and in the United States of America. A Consultant in Obstetrics, Surgery and Gynecology with Specialty in In Vitro Fertilization (IVF). He has over 35 years’ experience and was a former president of the Medical and Dental Council of Nigeria. The libel in question was published to the Medical and Dental Council of Nigeria, his professional body bringing disrepute to his professional capacity. More so Exhibits E1 and E2 are copies of the Respondent Solicitors’ letters of Demand to the Appellant asking the Appellant to

retract the libel, tender an apology and make restitution which the Appellant ignored showing that he had no remorse for his actions. Offoboche V. Ogoja Local Government Area (supra) 458 at 491 – 492”.

The principles to observe in an award for damages in libel were stated by the Supreme Court in the case of Guardian Newspapers Ltd v Ajeh (2011) 10 NWLR Part 1256 Page 574, also found at (2011) LPELR – 1343 (SC) Page 17 Para B-C, per Rhodes-Vivour JSC as follows:
“In libel cases, once the offensive article is found to be libelous of the Plaintiff, damages follow and the damages awarded is general damages. On the other hand, where there is direct pecuniary benefit from the offensive publication punitive damages are awarded…The award of damages, once libel is established is an exercise of discretion by the learned trial Judge, and as with all orders etc granted on the exercise of discretion the trial Judge must consider the following factors when exercising his discretion:
(a) The standing of the Plaintiff in society
(b) The nature of the Libel
(c) The mode and extent of the publication
(d) The refusal to

retract or render an apology to the Plaintiff
(e) The value of the local currency”
On the powers of the Court to interfere with the discretion of the lower Court with regard to the award of damages, the learned Jurist, Rhodes-Viviour JSC had this to say:
“This Court, as indeed an Appeal Court is always loath to interfere with the discretion of the learned trial Judge but would be compelled to interfere if it finds that the Judge acted upon an erroneous estimate, or a wrong principle of law was applied, such as taking into account some irrelevant factors or leaving out some relevant facts or that the award is either so ridiculously low or so ridiculously high that it must have been a wholly erroneous estimate of damage.
Fabiyi JSC, concurring, held:
“This Court has developed certain principles which should serve as guide in the determination of what is adequate damage in libel cases. From the decisions in His Highness Uyo II v. N.N.P.L (1974) 6 SC 103; (1974) NSCC 304; Offoboche v. Ogoja Local Government (2001) 7 SC (Pt.111) 107; the following facts ought to be taken into consideration: –
1. The award must be

adequate to repair the injury to the plaintiff’s reputation. This does not require proof of pecuniary loss.
2. The award must atone for the assault on the plaintiff’s character and pride which were unjustifiably invaded.
3. It must reflect the reaction of the law to the impudent and illegal exercise in the course of which the libel was unleashed by the defendants.
4. It must also take into account the loss of social esteem and the natural grief and distress to which the plaintiff may have been put.
5. The fact that the defendants did not show any remorse and did not care whether or not the plaintiff’s reputation or feeling was injured.
6. The social standing of the plaintiff must also be considered.
7. The rate of inflation which has adversely affected the value of the national currency.
As a matter of general principle, an Appellate Court would not interfere with an award of damages by a Trial Court simply because if faced with a similar situation and circumstance it would have awarded a different amount…. Libel is a wrong to which the law imputes general damages. Once a plaintiff proves that a libel has been

published of him without legal justification, his cause of action is complete. He needs not prove that he has suffered any resulting actual damage or injury to his reputation as such damage is presumed… An award of general damages must be adequate to assuage for the injury to the plaintiff’s reputation. It must atone for the assault on the plaintiff’s character and pride which were unjustifiably invaded.”
It is clear from the authorities above cited that the contention of the Appellant that no member of the public or the Council was called to testify of the effect of the letter on the reputation of the Respondent or that the witness of the Respondent gave hearsay evidence of the libel, is thus of no moment, as once the Respondent proved the publication of libel of him without legal justification, he need not prove resulting damage or injury to his reputation. This is presumed, as libel, being in a written or permanent form is actionable per se. See The Sun Publishing Company Ltd v Duraclean Specialist (Nig.) Ltd. (2019) 9 NWLR Part 1678 Page 510 at 531 Para G-H per Mshelia JCA.

As observed by the lower Court in awarding damages, the

Respondent is a Consultant in Obstetrics, Surgery and Gynecology with a specialty in In Vitro Fertilization (IVF), with over 35 years’ experience as a Medical Practitioner. He is licensed to practice both in Nigeria and in the United States of America. He was also the President of the Nigerian Medical Association from 2008-2010.

The lower Court also took into cognizance the letters written to the Appellant by the Respondent’s Solicitor requesting that he retract the allegations therein, but with no response. As held in the case of Guardian Newspapers Ltd v Ajeh Supra, this Court should be loath to interfere with the award given by the lower Court, taking into consideration the social standing of the Respondent and the virulent assault of his character and pride which was so unjustly and unjustifiably tarnished.

These factors, taken together with the total lack of remorse shown by the Appellant, justified the award given by the lower Court, I hold.

The award of 10% post judgment interest awarded, as permitted by the Rules, being a matter for the discretion of the trial Court, cannot also be faulted, I hold. I accordingly again

resolve this issue for determination against the Appellant.

The 5th issue for determination:
“Whether the judgment of the trial Court is against the weight of evidence”.

With all that has been held above, it follows that the 5th and final issue for determination with regard to the weight of the evidence, preponderated heavily in favour of the Respondent and against the Appellant, as in civil cases, facts are proved on the preponderance of evidence. Where there is nothing on the other side of the balance, the Appellant having called no evidence, the onus of proof is discharged on minimal proof. See Chiadi v Aggo (2018) 2 NWLR Part 1603 Page 175 at 211 at 222 Para H per, Aka’Ahs JSC.
This burden the Respondent successfully discharged, I hold.

CONCLUSION
In consequence of the resolution of all the issues above against the Appellant, this appeal fails and is hereby dismissed. The judgment of the lower Court is consequently affirmed. The Appellant shall pay costs of N250,000.00 to the Respondent.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in advance,

the dexterous leading judgment delivered by my learned brother, Oludotun Adebola Adefope-Okojie, JCA. I endorse, in toto, the reasoning and conclusion in it.

Indisputably, the respondent, a distinguished/accomplished medical doctor, proved that his reputation was defamed by the appellant. The importance of character in human existence cannot be over-emphasised. Its essentiality, in life, is located in the philosophical adage, videlicet: “When wealth is lost, nothing is lost, when health is lost, something is lost, but when character is lost, everything is lost”, see Mirchandani v. Pinheiro (2001) 3 NWLR (Pt. 701) 557. This, amply, justifies the struggle by everyone to husband his/her integrity. In effect, the lower Court did not fracture the law on defamation as to magnet the intervention of this Court. Consequently, I , too, visit a deserved dismissal on the appeal in the manner decreed in the erudite leading judgment.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned brother, O. A. Adefope-Okojie, JCA and I agree that this appeal should be dismissed. My learned

brother has dealt exhaustively with the issues for determination. I have nothing more useful to add.

For the detailed reasons and conclusion in the lead judgment, I too dismiss the appeal. I abide by all other orders in the lead judgment including the order as to costs.

Appearances:

Shareef Ahmed Mohammed Esq., with him, Abu Samson Alaweno, Esq. and Muhamad Zakariya, Esq. For Appellant(s)

Christian Kelechi Udeoyibo, Esq. For Respondent(s)