CHIEF IKANG EDET OKON v. ETINYIN BASSEY BASSEY OBO (2013)

CHIEF IKANG EDET OKON v. ETINYIN BASSEY BASSEY OBO

(2013)LCN/6011(CA)

In The Court of Appeal of Nigeria

On Thursday, the 7th day of March, 2013

CA/C/184/2011

RATIO

DEFAMATION: SCOPE

Defamation lies in the publication of the defamatory words.
Defamation is concerned with injury to reputation resulting from words written or spoken by others.
A defamatory statement may be defined as a statement which tends:
(a) to lower the claimant in the estimation of right thinking members of society generally, or
(b) to expose him to hatred, contempt or ridicule, or
(c) to cause other persons to shun or avoid him, or
(d) to discredit him in his office, trade or profession; or
(e) to injure his financial credit.
– Sim vs. Stretch (1936) 2 All ER 1237
– Alawiye vs. Ogunsanya (2004) 4 NWLR (pt. 864) 486
– Guardian Newsp. Ltd vs. Ajeh (2005) 12 NWLR (pt 938) 205
– Ayeni vs. Adesina (2007) All FWLR (pt.370) 1451.PER UZO I. NDUKWE-ANYANWU, J.C.A.

DEFAMATION: WHEN CAN WORDS BE SAID TO BE DEFAMATORY IN NATURE

Words are said to be defamatory if in their ordinary meaning they render the person about whom they are spoken to odium shame and disgrace. See Guardian Newspaper Ltd vs. Ajeh (2005) 12 NWLR pt 938 page 205, Ishaka vs. Aina (2004) 11 NWLR pt 883 page 146, Alawiye vs. Aina (2004) 4 NWLR pt 864 page 146, page 486, Adeyemo vs. Akintola (2004) 12 NWLR pt 887 page 390.PER UZO I. NDUKWE-ANYANWU, J.C.A.

DEFAMATION: WHAT THE PLAINTIFF HAS TO PROVE IN AN ACTION FOR DEFAMATION

In an action for defamation, the plaintiff has to prove not only were the offending words written but that they were infact published to a third person other than the defendant.PER UZO I. NDUKWE-ANYANWU, J.C.A.

DEFAMATION: ONUS OF PROOF IN AN ACTION FOR DEFAMATION

The onus of proof of a defamatory statement is on the defendant/Appellant to prove the truth of a defamatory statement rather than for the claimant to prove its untruth. Akomolafe vs. Guardian Press Ltd (2004) 1 NWLR pt 853 page 1.PER UZO I. NDUKWE-ANYANWU, J.C.A.

LIBEL: THE IMPORTANCE OF PUBLICATION IN AN ACTION FOR LIBEL
Publication is the live wire of an action in libel. Publication of an alleged defamatory word is fundamental element that must be established in an action for libel. Therefore, it is sufficient if it is proved that publication of the alleged defamatory material was made to at least one person other than the claimant in such a manner that it would convey the defamatory meaning and that the person acquainted with the claimant understood it to refer to the claimant.PER UZO I. NDUKWE-ANYANWU, J.C.A.

LIBEL: ESSENTIAL INGREDIENTS IN AN ACTION FOR LIBEL
To succeed in an action for libel, the plaintiff must prove upon balance of probability that the libelous material;
(a) Was in writing;
(b) Was published;
(c) Referred to him;
(d) was published to some person other than himself;
(e) Was defamatory;
(f) Was false;
(g) There was no justifiable grounds for the publication of the words.PER UZO I. NDUKWE-ANYANWU, J.C.A.

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

CHIEF IKANG EDET OKON Appellant(s)

AND

ETINYIN BASSEY BASSEY OBO Respondent(s)

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State sitting at Calabar delivered on 30th March, 2011.
The Respondent as Plaintiff in the trial court took out a writ against the Appellant as defendant and claimed the following reliefs.

(1) Declaration that the Defendant has defamed the Plaintiff by the said publication dated 10th March, 2008, addressed to the Chairman, Calabar Municipal Council, as it condemns the Plaintiff in his offices and as members of exalted court of the Obong of Calabar and that of the Traditional Rulers Council of Calabar Municipality.

(2) An order compelling the Defendant to recant the false representation made to the Chairman, Calabar Municipal Council concerning the Plaintiff.

(3) An order compelling the Defendant to apologize in writing to the Plaintiff and to forward same to the Chairman, Calabar Municipal Council.

(4) An order of Perpetual Injunction restraining the defendant or any person or body, his servants, agents or hirelings or whomsoever by his direction to desist from continuing the publication of the said publication.

(5) N2,000.00 (Two Million Naira) Damages.

The Appellant filed his statement of defence and the trial began. The Respondent gave evidence for himself and called one witness. The Appellant gave evidence for himself and called one witness also. At the end of the trial, the trial Judge delivered his considered judgment in favour of the Plaintiff/Respondent.
Being dissatisfied, the Appellant filed his notice and one ground of appeal on 1st June, 2011. The Appellant filed his brief on 26th September, 2011 and articulated only one issue for determination thus:
Whether the Learned Trial Judge was right to discountenance the Defendant’s defences of justification and qualified privilege as inapplicable in this case?
The Respondent filed his Respondent brief on 21st October, 2011 and articulated one issue for determination also.

ISSUE FOR DETERMINATION:
The only issue for determination herein is whether the trial Judge was right in upholding the case of libel against the defendant/appellant and declaring as inapplicable the defences of justification and qualified privilege as canvassed by the defendant/appellant while entering judgment for the plaintiff/respondent.
Both issues articulated by the parties are basically the same.
I will therefore use the issue as articulated by the Appellant.

ISSUE 1

The learned counsel to the Appellant submitted, that the Appellant published a letter to the Chairman, Calabar Municipal Council titled.

“PLANNED ATTACK, KILLING, ARSON AND DESTRUCTION OF PROPERTIES BY ONE ASUQUO SUNDAY BLACKWELL AIDED BY CLAN HEAD OF EFFIOATAI CLAN, HIS HIGHNESS BASSEY BASSEY OBO IN COLLABORATION WITH THE DISPLACED PEOPLE OF IKOT OFFIONG”

The counsel argued that the Appellant had to write the Chairman Calabar Municipality as Chief Security Officer of the Local Government Area in which the land is situate, of the likelihood of a breakdown of law and order in his village and for his intervention. Counsel referred the court to the case of M. T. Mamman Vs. A. A. Salaudeen (2009) 24 NSCQ page 360 where the Supreme Court quoted with approval lord Atkinson in Adams Vs Ward 1917 A.C page 309 where he defined qualified privilege inter alia thus:
“A privileged occasion is an occasion where the person who makes communication has an interest or a duty legal, social or moral to make it to the person to whom it is made and the person to whom is so made has a corresponding interest or duty to receive it. This reciprocity is essential.”

The Supreme continued to hold:
“…From the principle of law involved in the defence of qualified privilege as reproduced supra the privileged occasion recognized by the common law can be classified into one of two classes viz:
(a) Where the maker of the statement has a duty (whether legal, social or moral) to make the statement and the recipient has a corresponding interest to received it, or

(b) Where the maker of the statement is acting in a matter in which he has a common interest with the recipient.”

Counsel continued that the Chairman received the letter and convened a meeting as a person interested in the peace and security of the area. Counsel argued that the Respondent did not plead facts and particulars that show the malicious intentions of the Appellant in writing the said letter to the Chairman, Calabar Municipal Council. See Iloabachie vs Iloabachie (2005) NSCQR pt II page 689 where the Supreme Court held what a reply to a defence of qualified privilege should contain as follows:

“… A reply to a defence of qualified privilege should resonate with facts and particulars that show the malicious intention of the publisher of the statement. It is to say that implicit in such a publication would readily depict a mind poisoned or jaundiced by the prejudice and evil disposition bent on destructive calumny against the Plaintiff.”
Counsel also referred the court to Newbreed Organization Ltd Vs. J. E. Erhomosele (2006) 5 NWLR pt 974 page 499 where Ejiwunmi JSC of blessed memory stated as follows:
“Before concluding, it is I think germane and on the proof of malice in the con of the claim in the instant appeal to refer to the speech of Lord Diplock in Horrocks Vs. Lowe (1974) 1 All ER. 662 at 669 – 670. (1975) A.C. 135 at 150. That was an appeal arising out of an action for slander during the course of a meeting of a local council. The defence was qualified privilege to which the plaintiff replied that the defendant was actuated by malice. The speech of Lord Diplock reads in part, thus:
“…What is required on part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published, or as it is generally though tautologously termed, ‘honest belief. If he publishes untrue defamatory matter reckless, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral’ duty or in protection of a legitimate interest’ the law must take them as it finds them. In ordinary life, it is rare indeed for people to form their beliefs by a process of logical deduction from facts, ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree, according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognize the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief that the conclusions they reach are true. The law demands no more. Even a positive belief in the truth of what is published on a privileged occasion, which is proved, may not be sufficient to negative express malice, if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill-will towards the person he defames. If this be proved, then even position belief in the truth of what is published will not enable the defame to avail himself of the protection of the privilege to which he should otherwise have been entitled. There may be instances of improper motives which destroy the privilege apart from personal spite. A defendant’s dominant motive may have been to obtain some private advantage unconnected with the duty or interest which constitutes the reasons for the privilege. If so he loses the benefit of the privilege despite his positive belief that what he said or wrote was true. Judges and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity’.
Counsel submitted that the defence of qualified privilege avails the defendant, who as Village Head wrote to the Chairman of Calabar Municipal Council about the volatile security situation in his village caused by the activities of one Asuquo Sunday Blackwell and the Respondent. Counsel submitted that the Appellant stated the real owners of the land in the offending letter and the Appellant was justified in stating so. Counsel referred the court to the case of Iloabachie vs. Iloabachie (supra) where the Supreme Court held as follows:
“…One of the defences available to a defendant in an action for libel is that of justification. It is therefore a complete defence to an action for libel or slander that the defamatory imputation is true. The truth of the imputation is an answer to the action because the law presumes that the plaintiff has no right to a character free from that imputation if he has no right to it. He cannot in justice recover damages for the loss of it. He is not entitled to, and as such the allegation in a defence that the words complained are true is therefore called a plea of justification. A defence of justification is therefore a complete bar to any relief sought by a party who complains of defamation. It is appropriately described in the latin maxium “damnum absque injuria”. Until it is clearly established that an alleged libel is untrue, it will not be clear that any right at all has been infringed. See Registered Trustees of Amorc Vs. Awoniyi (1994) 3 NWLR (pt 178) 245 at 257.”
Also in the Registered Trustees of Rosicrician Order, AMORC (Nig) v. Henry O. Awoniyi & Ors (1994) 7 – 8 SCNJ page 390 where the Supreme Court held:
“For the defence of justification to succeed, it is not necessary to prove the truth of each and every word comprised in the alleged libel. It suffices if the defendant establishes that the main substance of the libelous statement is true and justified. The defendant need not justify statements or comments which do not add to the sting of the charge or introduce any matter by itself actionable”
Counsel submitted finally that the Appellant’s letter of 10th March, 2007 did not refer to the character or reputation of Plaintiff in anyway, but complained about the security situation in his village and who was causing the problem. Counsel urged the court to resolve this lone issue in favour of the Appellant. In reply, the respondent’s learned counsel submitted that the law is clear that libel is actionable and also the Appellant has admitted publishing the words contained in the letter written to the Chairman Calabar Municipal Council. Counsel argued that what is admitted need no further proof. The defence of qualified privilege cannot avail the Appellant as his report failed the test of being fair, made out of good faith, published without malice and being accurate or true.
The malice in the publication is emphasized when the Appellant refused to retract the publication and apologise to the Respondent. See Newbreed Organisation Ltd vs. Erhomosele (supra) where Muktar JSC held as follows:

“It is always very difficult to conceive whether a publication is done maliciously or not I can only deduce that it was so done when ever after writing the defendant/appellant Exhibit D, and demanding retraction of the article, it refused to do so, even at the threat of imminent legal action. In African Newspaper Limited Vs. Ciroma (supra) factors indicating malice were also put forward as: 1) inaccuracy of the report made; 2) bold heading to the report made and relating to the plaintiff/respondent; and 3) lack of apology when confronted.”

Counsel submitted that for qualified privilege to avail the defendant, it has been held in Peterside vs. Fubara (2006) All FWLR pt.297 page 1064.
“the law will consider any libelous publication injurious words or statement as malicious unless it can be established that the person who makes the communication of such injurious and malicious words is a person who has an interest or a duty: legal, social or moral, to make it to the person to whom it is made and the person to whom it is so made has a corresponding duty or interest to receive same. This position of reciprocity of interest has been highlighted in Ademola Atoyebi vs. Williams Odudu (1990) 10 SCNJ 52; (1990) 6 NWLR (pt.157) 384 and African Newspapers Limited vs. Ciroma (1996) 1 NWLR (Pt.423) 157;”

Counsel to the Respondent referred the court to Newbreed vs. Erhomosele (supra) where Ejiwunmi JSC (of blessed memory) adopted the dictum of Lord Diplock in Horrocks vs. Lowe (1974) 1 All ER page 662 and said it was applied out of con by the Appellant’ s counsel. The dictum as held by Lord Diplock is as follow:
“What is require on the part of the defamer to entitle him to the protection of the privilege position is belief in the truth of what he published… if he publishes untrue defamatory matter reckless(ly), without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false.’ His Lordship states further that: ‘Even a positive belief in the truth of what is published on a privileged occasion, which is proved, may not be sufficient to negative express malice, if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill-will towards the person he defamest.’ In the same vein, the defendant/appellant reliance in the dicta in Iloabachie vs. Iloabachie (2005) 22 NSCQR (Pt.II) 672 and The registered Trustees of Rosicrucian Order, AMORC (Nigeria) vs Henry O. Awoniyi (1994) 7-8 SCNJ 390 is misconceived and out of con, too, as none of the words in the libel complained of is true. The plaintiff/respondent is not a murder, is not an arsonist and had never planned any attack nor had hired or collaborated with any person to hire hoodlums to perpetrate felony on his behalf anywhere in his village and clan.”
Counsel further submitted that the Respondent is not a murderer, is not an arsonist and had never planned any attack nor had hired or collaborated with any person to hire hoodlums to perpetrate felony on his behalf anywhere in his village and clan.
Counsel submitted that the appellant and witness admitted the publication of the infamous letter. The appellant did not regret publishing the letter rather insisted that the Respondent attacked the Appellant when he knew the statement to be false and made to spite the Respondent. The ulterior dominant motive was to hasten the Respondent’s Expulsion from the courts of Obong of Calabar and that of the Paramount Ruler of Calabar Municipality as being an unfit character.
Counsel further submitted that the Appellant never proved the truth of his communication at any time during the trial. See Dumbo vs. Idingboe (1983) 1 SCN LR page 29. Where it was held that the defendant in a defence of justification must prove that the defamatory imputation is true not only in its allegation of fact, but also in any comments made thereon.”
Finally, the learned counsel for the Respondent submitted that the Respondent had proved his case against the Appellant. It is the requirement in law:
“that for there to be libel there must be publication in permanent form referring to the plaintiff, conveying defamatory meaning to those whom it is published and the statement was defamatory of the plaintiff to lower him in the estimation of right thinking members of the public: or to expose him to hatred ridicule or contempt, or it injured his reputation in his office, trade or profession; or it injured his financial credit. See Anate v. Sanusi (2002) FWLR Pt.93 page 1902; NEPA v. Inameti (2002) FWLR (PT.130) page 1695.”

In Edem vs. Orpheo (Nig.) Ltd. (2003) 13 NWLR (Pt.838) page 537, the Supreme Court held:
“…a defamatory imputation consists of the publication to a third person or persons of any words or matter which tend to lower the person defamed in the estimation of right thinking members of society generally or to cut him off from society or to expose him to hatred, contempt or ridicule or to injure his reputation in his office, trade or profession or to injure his financial credit.”
Counsel submitted that the Appellant had admitted publication and therefore needed no proof. Counsel urges the Court to resolve this issue in favour of the Respondent.
The Appellant on the 10th March, 2008, wrote a letter Exhibit 1 to the Chairman Calabar Municipality with a caption like this:
“PLANNED ATTACK, KILING, ARSON AND DESTRUCTION OF PROPERTIES BY ONE ASUQUO SUNDAY BLACKWELL AIDED BY THE CLAN HEAD OF EFFIO-ATAI CLAN, HIS HIGHNESS BASSEY BASSEY OBO IN COLLABORATION WITH THE DISPLACED PEOPLE OF IKOT OFFIONG”

The Chairman convened a meeting to discuss this letter on 21st July, 2008. The meeting was however suspended indefinitely following a court action instituted by the Appellant.
The Respondent being aggrieved by the letter of the Appellant to the Chairman retained the services of a Legal Practitioner. The Respondent instructed the counsel to write to the Appellant Exhibit 2. The Respondent requested the following from the Appellant to

TAKE NOTICE that our standing instruction is to commence a Legal action against you and claim damages for LIBEL in the High Court of Cross River State forthwith, unless you within 7 (seven) CLEAR DAYS upon the receipt of this letter:-
(1) Recent the false representation to the Chairman of Calabar Municipal Government.
(2) Apologize in writing to our client and forward a copy of such apology to the chairman, Calabar Municipal government.
(3) Compensate our cient with N2,000,000.00 (Two Million naira) only, as a RECOMPENSE for legal cost and humiliation suffered by him (our client) by reason of your reckless and false representation which has cause our client, a most respectable which has caused our client, a most respectable Clan Head in both courts of the Obong of Calabar and that of Ndidem, the Paramount ruler of Calabar Municipality, huge embarrassment, opprobrium and low esteem amongst his contemporaries at Council’s meeting and outside.
The Appellant ignored the request and thereafter, the Respondent as Plaintiff sued the Appellant as defendant. The Appellant claimed the following.

(1) Declaration that the Defendant has defamed the Plaintiff by the said publication dated 10th March, 2008, addressed to the Chairman, Calabar Municipal council, as it condemns the Plaintiff in his offices and as members of exalted courts of the Obong of Calabar and that of the Traditional Rulers Council of Calabar Municipality.
(2) An order compelling the defendant to recant the false representation made to the Chairman, Calabar Municipal Council concerning the Plaintiff.
(3) An order compelling the Defendant to apologize in writing to the Plaintiff and to forward same to the Chairman, Calabar Municipal Council.
(4) An order of perpetual injunction restraining the defendant or any person or body, his servants, agents or hirelings or whomsoever by his direction to desist from continuing the publication of the said publication.
After a full trial the trial Judge found for the Respondent and held as follows:
Consequently, I hold that the plaintiffs case against defendant succeeds and judgment is hereby entered in his favour in the following terms:
1. It is hereby declared that the defendant had defamed the plaintiff by the said publication dated 10th March, 2008.
2. Defendant is hereby ordered to recant false representation contained in the publication of 20th March, 2008 made to the Chairman, Calabar Municipal council concerning the plaintiff.
3. Defendant is ordered to apologize in writing to plaintiff and forward same to Chairman, Calabar Municipal Council.
4. An order of perpetual injunction is hereby granted restraining defendant, his agents, servants or hirelings from further defamation of plaintiff by any further publication; and
5. The sum of N200,000.00 damages is awarded in favour of the plaintiff against defendant for defamation.

In an action for defamation, the plaintiff has to prove not only were the offending words written but that they were infact published to a third person other than the defendant. In the instant case, the Appellant admitted writing the letter Exhibit 1 and publishing it to the Chairman. The respondent has therefore proved that the Appellant indeed published the offending words.
The Appellant admitted publishing those offending words to the Chairman but put up a defence of justification. The onus of proof of a defamatory statement is on the defendant/Appellant to prove the truth of a defamatory statement rather than for the claimant to prove its untruth. Akomolafe vs. Guardian Press Ltd (2004) 1 NWLR pt 853 page 1.The appellant in this appeal was not able to prove the truth of what he had published in the letter to the Chairman Calabar Municipality Exhibit 1.
The Respondent had proved all the six ingredients in the published letter. The ordinary meaning of the words published are clear to the ordinary man on the street. The words used are not words that any other meaning can be inferred except what it is. Planned attack, killing, arson and destruction of properties. These words are ordinary words that nothing can be inferred from them other than what the words mean. Not only were the words published the Appellant used them in connection with the Respondent. The appellant was unable to prove that the words were true in connection with the Respondent. The appellant couldn’t prove that the Respondent did infact plan any attack or carried out any. The Respondent had not killed anybody nor caused any arson or destruction of any property. In sum the Appellant could not prove that the publication was true. Having failed to prove the truth of these words, the defence of privilege did not therefore avail the Appellant in this appeal.
The Respondent in his part proved the publication of those offensive words.
Publication is the live wire of an action in libel. Publication of an alleged defamatory word is fundamental element that must be established in an action for libel. Therefore, it is sufficient if it is proved that publication of the alleged defamatory material was made to at least one person other than the claimant in such a manner that it would convey the defamatory meaning and that the person acquainted with the claimant understood it to refer to the claimant.
Publication has been proved in this case. The appellant admitted publishing the letter Exhibit 1 to the Chairman Calabar Municipal Council. It therefore needs no further proof by the Appellant. On the strength of that publication the Chairman convened a meeting that never held.
To succeed in an action for libel, the plaintiff must prove upon balance of probability that the libelous material;
(a) Was in writing;
(b) Was published;
(c) Referred to him;
(d) was published to some person other than himself;
(e) Was defamatory;
(f) Was false;
(g) There was no justifiable grounds for the publication of the words.

All these have been proved by the Respondent and not denied by the appellant. The appellant failed to prove the defence of privilege he put up. There was no iota of prove to any of the allegations contained in the letter Exhibit 1
The appellant knowing that the Respondent occupied a sensitive post in the community, he would have been more circumspect with his choice of words. Naming the Respondent categorically was in very bad taste. It was actually published maliciously to bring the Respondent to odium, shame and disgrace. The Respondent proved that he has been defamed by what was published about him without justification. The Respondent’s cause of action is complete and does not need to prove that he had suffered any resulting actual damage or injury to his reputation for such damage to be presumed. CRSN Corp. vs. Oni (1995) 1 NWLR pt 371 page 270.
The trial Judge was right when he held that the Respondent couldn’t prove his defence of privilege and went ahead to award damages to the respondent.
The sole issue articulated by the Appellant is therefore resolved against him. This appeal is unmeritorious and therefore fails. It is hereby dismissed. I affirm the judgment of the trial Judge including all the consequential orders contained therein. I will repeat it here for clarity.
Consequently, I hold that the plaintiff’s case against defendant succeeds and judgment is hereby entered in his favour in the following terms:
1. It is hereby declared that the defendant had defamed the plaintiff by the said publication dated 10th March, 2008.
2. Defendant is hereby ordered to recant false representation contained in the publication of 20th March, 2008 made to the Chairman, Calabar Municipal council concerning the plaintiff.
3. Defendant is ordered to apologize in writing to plaintiff and forward same to Chairman, Calabar Municipal Council.
4. An order of perpetual injunction is hereby granted restraining defendant, his agents, servants or hirelings from further defamation of plaintiff by any further publication; and
5. The sum of N200,000.00 damages is awarded in favour of the plaintiff against defendant for defamation.
Cost of this appeal is assessed at N50,000.00 against the Appellant in favour of the Respondent.

JOSEPH TINE TUR, J.C.A.: I read an advance copy of the lead judgment delivered by my Lord Uzo I Ndukwe-Anyanwu, JCA, and I concur that the appeal be dismissed. I shall add the following comments.
Paragraphs 1-9 of the Statement of claim pleaded the following facts:

“1. The plaintiff is the clan Head of Effio-Atai clan, as well as the Village Head of Ikot Ekpo village in the Calabar Municipality and resides at No.1 Bassey Ette Street, Ikot Ekpo within the jurisdiction of this court. He is both a member of the Obong council, as well as the Traditional Rulers council of the Calabar Municipality.

2. The defendant purports to be the village Head of Aso Adim in Bacoco (Mbakoko) Qua Clan in the Calabar Municipality where he a/so resides within the jurisdiction of the Honourable court. He is alleged a non-indigene document do this effect shall be relied upon.

3. On the 10th day of March, 2008, the defendant without any provocation by the plaintiff, published to the chairman, Calabar Municipal council, a letter title “Planned attacked, killing arson and destruction of properties by one Asuquo Sunday Blackswell aided by the clan Head of Effio-Atai clan, His Highness Bassey Bassey Obo in collaboration with the displaced people of Ikot Offiong” whereupon he defamed the plaintiff copy of which letter shall be relied upon during trial.

4. By reason of the letter to the Chairman, a meeting was convened for 21st July, 2008 and the meeting was only suspended indefinitely purported following a Court action by the defendant. Copy of the letter addressed to the plaintiff shall be relied upon during trial.

5. The plaintiff is not a party to the said litigation, as no Writ has been served him.

6. On the 18th August, 2008, the plaintiff being aggrieved by the publication, retained Robin A. Umiom, Esquire of Counsel who wrote the Defendant. Copy of the letter shall be relied upon during trial.

7. The 7 (Seven) clear days ultimatum given the defendant:

(1) To recant the false representation to the Chairman of Calabar Municipal Council;
(2) To apologize in writing to the plaintiff for the said defamation;
(3) To recompense the plaintiff for the libelous publication;
had since expired without any reaction from the Defendant one way or the other.

8. The plaintiff who belongs to the two Courts of the Obong of Calabar, as wells as that of the Paramount Ruler of the Calabar Municipality by virtue of his position as the Clan Head of Effio-Atai Clan, has been defamed by the publication of the Defendant to the Chairman, Calabar Municipal Council which cannot be substantiated.

9. By reason of that publication, the plaintiff to any reasonable man is seen and regarded as a murderer and an Arsonist who is not fit to occupy these positions he presently holds.”

Paragraphs 1-18 of the Appellants Statement of Defence also plead the following facts:

“1. Save as it is hereby specifically admitted the defendant denies each and every averment of fact in the Statement of claim as if each such fact was set out seriatim and in like manner specifically traversed.

2. The Defendant admits paragraph 1 of the Statement of claim.

3. Save and except that the defendant is the Village Head of Aso Adim Village in Bacoco (Mbakako) Qua Clan in the Calabar Municipality, the defendant denies the averment in paragraph 2 of the statement of claim.

4. The defendant in answer to paragraph 2 of statement of claim states that in 1980 the Federal Housing Authority acquired a parcel of land at Ikot Ekpo village for the purpose of establishing a Housing Estate thereon and commenced construction without paying compensation.

5. Ikot Omin and Ikot Ekpo Communities took out an action in suit No.C/49/1984. Ntoe Edet E. Omin & Anor. vs. Chief Lands Officer & Anor seeking a declaration that they were entitled to the compensation over the Federal Housing project site phase 1, Ikot Ekpo village.

6. The Federal Housing Authority admitted the claim of Ikot Omin and Ikot Ekpo Communities for compensation in suit No.C/49/1984 and judgment was entered in favour of the Communities on the 18th of March, 1985. The defendant will rely on a certified true copy of the said judgment.

7. The Federal Housing Authority on the 29th of February, 1987 paid the sum of N29,735.00 (Twenty Nine Thousand Seven Hundred and Thirty Five Naira) only as compensation for communally owned crop, Ikot Omin Community as Landlord and Ikot Ekpo village as customary tenant shared the said compensation.

8. In 1993 the Cross River State Government through its Cross River State Property Development and Investment Limited acquired additional land adjacent to the Federal Housing project site (Phase 1) Ikot Ekpo village, which included part of Aso Adim. The Government wrote to the Clan Head of Ikot Omin to assist in identifying the beneficiaries for compensation.
The defendant will at the trial rely on the letter written to the Clan Head of Ikot Omin dated 15th April, 1993 at the trial.

9. The Cross River State of Nigerian by notice dated the 26th day of May, 2007 and published in the Nigerian Chronicle of June 27, 2007, released/reverted an area measuring approximately 13,544 Hectares, shown on plan No.CR/C830 (Tracing No.CRC.7287) to the original title holders, Ikot Ekpo and an area of approximately 13.428 Hectares and shown on plan No. CR/C830 (Tracing No.CRC.7288) released to Madam Inyang Eneyo as another grantee, all being part of the land acquired for the Federal Housing project site (Phase 1) Ikoy Ekpo village.

10. The plaintiff, Etubom Ekpo Eyo Bassey, Arc Bassey Eyo Ndem and Asuquo Sunday Blackswell entered into the released portions of Ikot Omin land, laid it out into plots and started to sell same.

11. The Defendant and Ikpai Omin, Community challenged the plaintiff and others on the land warning them that they were not entitled to it not being the original title holders of the land.

12. The plaintiff did not heed the warning of Ikpai Omin community but instead made a report against the defendant at the Zone “6” Police Command, Calabar accusing him of Attempted Murder, Forcible entry, stealing and conduct likely to cause a breach of the peace.

13. The defendant was served with a Police invitation letter dated 28th February, 2008. The defendant honoured the said invitation and the complaint of the plaintiff turned out to be frivolous and false. The defendant will rely on a copy of the police invitation dated 28th February, 2008 at the trial.

14. The plaintiff and Asuquo Sunday Blackswell engage the services of Ikot Offiong displaced people and put them on the land to bolster their claims and to resist Ikpai Omin Community from coming on to the land.
15. The defendant further state that because of his opposition to the activities of Asuquo Sunday Blackswell and the plaintiff, he was informed of a planned attack en him and other prominent members of Ikpai Omin Qua Clan by Ikot Offiong mercenaries, that would trigger communal crisis in the area. The defendant as the Village Head of Aso Adim wrote to the Chairman, Calabar Municipal Council, soliciting his intervention to prevent any crisis in the area.

16. Save and except that the defendant wrote to the Chairman, Calabar Municipal Council about the volatile situation on the released lands and his information of an impending communal crisis, the Defendant denies paragraph 3 of the Statement of claim.

17. The Defendant further states that as Village Head of Aso Adim within Calabar Municipality he was under and obligation to inform the chairman as a person in authority, and in a position to receive such reports of any situation likely to cause a breach of the peace in the area.

18. The defendant denies that he defamed the plaintiff in any manner whatsoever and that his letter 10th of March, 2008 was written on a privilege occasion to a person in authority and in a position to receive such complaints.”

The real dispute will therefore show that both parties are contesting ownership of the land in dispute situate at Ikot Ekpo Village which the Federal Housing Authority acquired for the purposes of establishing a housing estate subject to the payment of compensation. The appellant did not deny writing the letter pleaded in paragraph 3 of the statement of claim by the Respondent but pleads qualified privilege and justification as a defence. The appellant testified at the lower Court and was cross-examined by the Respondent’s Counsel. The appellant gave evidence as follows:
“Continuation of Cross-examination – Dw1:
When I received Exhibit “2”, I did not regret what I did. That’s why I did not apologize because I did no wrong. I have not sued Asuquo Daniel, but the Community did. Ikpai Omin community did. It is the same as Ikpai Omin clan. I am a member of the clan being an indigene. Aso Adim is my village, for which I am the head. Aso Adim is in Bakoko clan. Gorshed published something about Clans. Government says Bakoko is a clan. Claimant clan is Effio Atai Clan. Don’t know if government made it possible too. I know that of Bakoko. I wrote Exhibit “1”, but not libel. Claimant was a clan Head when I write Exhibit “1”. I don’t know if he murdered anybody when I write Exhibit “1”. He attacked somebody (i.e.) the village Head of Aso, Edim through his agent that is Chief Ikang Edet Okon. He did not burn down anybody’s property. Chairman of Calabar Municipality is the chief security officer of the Council.
I am representing “Ikpai Imin clan interest at Asor Edim, because Aso Adim belonged to Ikpai Omin. Before creation of clans all of us belong to Ikpai Omin clan. I did not mean to rubbish claimant by writing Exhibit “1”. When I got to the Aso Adim land that he annexed, he attacked me. I have sued for trespass against him. I sued him after I wrote Exhibit “1”. If is suit No.C/96/2008, The matter is still pending till date, Boundary commission is not a human being. Bakoko and Effio Atai clans are separate. That is all Umiom
Re-Cross-Examination – Nil.”
The learned trial Judge considered the oral and documentary exhibits before holding at page 92 to 93 of the printed record as follows:
“…Meanwhile it is common ground that the publication in Exhibit “1” was actually served on the Chairman, Calabar Municipal Council, a third party which gave rise to Exhibit “3”. Therefore, a substantive issue is whether indeed Exhibit “1” is defamatory of the plaintiff. Again Exhibit “1” speaks for itself. But to be specific paragraph 1 of the same stafes inter alia:
“I am writing this report to you for quick and urgent action of impending planned attack, killing, arson and destruction of the people properties to be carried out by one Asuquo Sunday Blackswell aided by the Clan Head of Effio Atai and their hired assassins the displaced people of Ikot Offiong.”
I have understand the word hired assassins for effect and without ado it is not only my view but I hold that the words are defamatory of the plaintiff who is agreed to be the Clan Head of Effio Atai Clan. Also it his been proved that the publication was actually made to a third party, i.e. Chairman of Calabar Municipal Council. Also the defendant admitted in Court that he indeed wrote Exhibit “A” and in law that which is admitted need no further proof. Defendant did not deny receiving Exhibit “2” yet he refused to apologize or retract the publication.
I have examined and considered the defendant’s defences of justification and qualified privilege and in my view they are inapplicable to this case and are discountenanced.
Consequently, I hold that the plaintiff’s case against the defendant succeeds and judgment is hereby entered in his favour in the following terms:
‘1. If is hereby declared that the defendant had defamed the plaintiff by the said publication dated 10th day of March, 2008.
2. Defendant is hereby ordered to recant false representation contained in the publication of 10th day of March, 2008 made to the Chairman, Calabar Municipal Council concerning the plaintiff.
3. Defendants is ordered to apologize in writing to plaintiff and forward same to Chairman, Calabar Municipal Council.
4. An order of perpetual injunction is hereby granted restraining defendant, his agents, servants, or hirelings from further defamation of plaintiff by any further publication; and
5. The sum of N200,000.00 damages is awarded in favour of the plaintiff against defendant for defamation.”
In Gatley on Libel and slander, 9th edition, page 325 paragraphs 14.3 and 14.4 appears the following statement by the learned authors on the defence of qualified privilege:
“14.3 Fairly warranted by the occasion: To gain necessary for the performance of the duty or the protection of the interest which underlies the privilege. This may exclude the publication of some irrelevant matter, but it also means that the Court may have to balance the relative harm to the defendant if the statement’s not published and to the plaintiff’s reputation if it is.
14.4 The main classes of common law: The following classes of statement illustrate but do not exhaust the general principle of qualified privilege at common law; for we may not substitute a catalogue for a principle:
(1) Statements made in the discharge of a public or private duty.
(2) Statement made on a subject matter in which the defendant has a legitimate interest.
(3) Statement made by way of complaint about those with public authority or responsibility.
(4) Reports of parliamentary proceedings.
(5) Copies of or extracts from public registers.
(6) Reports of judicial proceedings.
Categories (4) and (5) are to be covered by a statutory qualified privilege and the common law is probably henceforth of little or no importance. Category (6) is, in the case o United Kingdom proceedings and certain international proceedings to be covered by absolute privilege and also by a statutory qualified privilege which will apply to” proceedings abroad and will therefore a/so now be of little or no practical importance.”
Furthermore, as regards the plea of justification the learned authors have stated at page 233 paragraph 11.1 that:
“11.1 Terminology and policy: It is a defence for the defendant to establish that the imputation in
respect of which he is sued is substantially true and the defence is called a plea of justification. The name is unfortunate because while its meaning may be clear to lawyers it may convey to lay people the idea that there must be some good reason for the publication, whereas in fact, with one minor exception, it is not actionable maliciously to publish the truth. Nevertheless, the usage’s so inveterate in England that it is adhered to in this chapter. Whether truth should in all circumstances be a defence’s controversial and the law has been altered in a number of common law jurisdictions so that the defence’s confined to cases where the publication is “for the public benefit” or “relates to a matter of public interest”. If this course is followed one in effect introduces in an indirect way a limited form of liability for invasion of privacy by the revelation of embarrassing private facts.”
Where the defamation consists of fact and opinion the learned authors have also stated at page 237 paragraph 11.5 (supra) that:
“11.5 Fact and opinion: If the libel contains defamatory statements both of fact and of opinion, the learned statements of opinion are correct. “A plea of justification means that the libel is true not only in ifs allegations of fact, but also in any comments made… The defendant has to prove not only that the facts are truly stated hut also that any comments upon them are correct.” “In a plea of justification the defence that a matter of opinion or inference is true is not that the defendant truly made that inference, or truly held that opinion, but is that the opinion and inference are both of them true.” Hence if an article in a newspaper is introduced by a defamatory headline in the nature of a comment, evidence that the facts stated in the article were true is not sufficient to support a plea of justification unless the defendant convinces the jury that the headline was a true view of the state of affairs disclosed by the facts. A plea of justification in respect of a comment may succeed where a plea of fair comment would fail because the defendant was actuated by malice; contrariwise, a plea of justification may fail in circumstances in which a plea of fair comment would succeed because the comment, though untrue, Was such as an honest or fair-minded person might have made and was made without malice.”
From the evidence on record no attempt whatsoever was made by the appellant to establish either the defence of qualified privilege or justification. Rather the appellant was indifferent to the truth or falsity of what he wrote as he could not prove same at the trial. The publication was to give vent to his personal spite or ill-will towards the Respondent over land dispute. I see no merit in this appeal which I also dismiss. I abide by the orders made by my Lord.

ONYEKACHI A. OTISI, J.C.A.: I have had the opportunity of reading in draft the Judgment just delivered by my learned Brother, Uzo Ndukwe-Anyanwu JCA. I am in complete agreement with both the reasoning and conclusion. I also hold that the appeal is completely without merit.
I abide with the Orders made in the lead Judgment, including the order as to costs.

Appearances

S. N. Chukwuma Esq.For Appellant

AND

Robin A. Umiom, Esq.For Respondent