CHIKA OKAFOR & ORS v. LINUS IBEGBU
(2016)LCN/8266(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 9th day of March, 2016
CA/S/19/2014
RATIO
APPEAL: WHETHER AN APPELLATE COURT IS ALLOWED TO OVERTURN THE FINDINGS OF FACT OF A TRIAL COURT
This Court is an appellate Court which is not allowed to overturn the findings of fact of a trial Court but attach the greatest weight to the opinion of the trial Judge who saw and heard the witnesses, the reason being that a finding of fact involves both perception and evaluation. See ISMAIL V THE STATE (2011) LP ELR – SC 85/2009 at 46. However when the findings of fact are perverse having regard to the evidence before the Court and are not based on the fact of the trial Judge having seen and heard the witnesses, a Court of Appeal can disturb such findings. See OLAREWAJU V GOVERNOR OF OYO STATE (1992) NWLR (PT 265) 335; BAMGBOYE & ORS V OLAREWAJU (1991) 5 SC. 104; NARUMAL & SONS NIG LTD V NIGER BENUE COMPANY LTD (1989) 2NWLR (PT 106) 730 at 762; WOLUCHEM V GUDI (1981) 5 SC 319 at 326; AKPAPUNA V NZEKA (1983) 2 SC NLR 1. per. TUNDE OYEBANJI AWOTOYE, J.C.A.
TORT: TORT OF SLANDER AND LIBEL; WHAT IS SLANDER AND LIBEL AND WHAT MUST THE PLAINTIFF PROVE TO SUSTAIN AN ACTION IN LIBEL
What is slander? It is spoken libel. It is slander because it is not in written form. Akintan JSC. In ILOABACHIE V ILOABACHIE (supra) explained what the plaintiff must prove to sustain an action in libel thus
“The law is settled that to sustain an action in libel the plaintiff must prove that
(1). the publication was in writing
(2). the publication was false.
(3). the false publication was made to a person apart from the plaintiff and the defendant.
(4). the publication referred to the plaintiff and was defamatory of the said plaintiff and
(5). the publication was made by the defendant. See DIN V AFRICAN NEWSPAPER OF NIGERIA (1990) 3NWLR (PT 139) 392; ONYEJIKE V ANYASSOR (1992) 1 NWLR (PT 218) 437; NSIRIM V NSIRIM (1990) 3 NWLR (PT 138) 285 and ONU V AGBESE (1985) INWLR (PT 4) 704.
The onus is on the plaintiff in an action for 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 person possessing some particular facts. See UNION BANK NIGERIA LTD V OREDEIN (supra) 355 at 372 per. TUNDE OYEBANJI AWOTOYE, J.C.A.
THE DEFENCE OF QUALIFIED PRIVILEGE: THE NATURE OF THE DEFENCE OF QUALIFIED PRIVILEGE
In ILOABACHIE V ILOABACHIE (2005) 13 NWLR (PT 943) 695, Acholonu JSC defined it thus:
“Qualified privilege is a defence to an untrue publication it can only be claimed however when the occasion of the publication is shown to be privileged.”
His lordship added
“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”
His lordship Pats Acholonu JSC explained further Thus:
?”Where a Court is considering the defence of privilege whether qualified or not, there are some empirical factors that should be taken into consideration and these include the interest of any of the persons to whom the document was published and the circumstances of the matter in question – — —
Equally too the Court should consider the motive for the publication to examine whether it is actuated by purely altruistic principle or tendencies or malicious motive. See also EMEAGWARA V STAR PRINTING AND PUBLISHING COMPANY LTD (2000) 10 NWLR (PT 676) 489″ per. TUNDE OYEBANJI AWOTOYE, J.C.A.
DAMAGES: WHAT THE COURT MUST TAKE INTO CONSIDERATION IN AWARDING DAMAGES
In awarding damages, the Court will take into consideration (a) the standing of the plaintiff in the society (b) the impact of the words complained on the career of the plaintiff (c) the moral standing of the plaintiff (d) the impact of the words complained of on the marital status of the plaintiff (e) the unjustifiability of the attack on the plaintiffs reputation (f) the depreciation in the value of the currency due to inflation. See ALAWIYE V OGUNSANYA (2004) (PT 864) 486. per. TUNDE OYEBANJI AWOTOYE, J.C.A.
JUSTICES
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MUHAMMED L. SHUAIBU Justice of The Court of Appeal of Nigeria
Between
CHIKA OKAFOR & 3 ORS Appellant(s)
AND
LINUS IBEGBU Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal lodged by the appellants via their Notice of Appeal filed on 20/8/2013.
It is an appeal against the decision of Hon. Justice Bello Abbas of High Court of Justice Sokoto State in Suit No SS/4/2009 delivered on 2/8/2013.
The plaintiff (now the respondent) at the Lower Court had instituted an action against the defendants (now appellants in this Court) claiming as per his endorsement on his writ of summons as follows:-
“The plaintiff’s claims against the defendants jointly and severally as follows:
1. N6 Million Naira damages.
2. 10% interest on judgment sum from date of judgment to date of final payment of judgment sum.
3. Cost of action.
The plaintiff and the defendants are all businessmen and woman, all resided in Sokoto within the jurisdiction of this Court.
Sometime (sic) respectively on 3/12/2008; 4/12/2008 and 5/12/2008 the defendants jointly and severally maliciously defamed the character of the plaintiff by publishing to the hearing of many 3rd parties respectively at the
residence of the plaintiff’s in-law in Sokoto and at plaintiff’s business place at Ahmadu Bello Way. Sokoto the following words about and concerning the plaintiff “that the plaintiff raped his 10 years old house girl and also had sexual intercourse with his mother in-law and that he did so for money ritual.”
The plaintiff did none of those actions alleged and he is the chairman of his community meeting in Sokoto, also holds many other offices in many other associations/clubs in Sokoto and is well respected, even in his Church.
The plaintiff has been so discredited, humiliated, disparaged and damaged in the eye of every right thinking person, his church members, business associates and customers, in ? laws and friends who are now afraid of him and don’t trust him again since after he is said to be a rapist and a ritualist.
Whereof, the plaintiff claims against the defendants jointly and severally as per above.”
Parties filed and exchanged pleadings. After hearing the parties, learned trial Judge gave judgment in favour of the plaintiff inter alia as follows
?”Going by
the pieces of the evidence adduced by the contenting parties, the evidence called by the plaintiff PW?s 1 to 9 as well as the evidence offered by the defence D. W.?S 1 to 4 in this suit, clearly there is an admission by the defendants themselves of publishing the malicious false allegation against the person of the plaintiff in this suit (sic) Linus Ibegbu allegedly said to have raped his ten years old house girl Chinaza for money rituals published by the defendants to third parties with a view to (sic) damage his character.
The offence of injuring a person character, fame or reputation by false and malicious statements, the term seems to be comprehensive of both libel and slander.
A false statement that is made by on person about another person shared with a third party or persons it is usually a damaging statement.
A false statement that injures some one?s reputation and exposes him to public contempt, hatred, ridicule or condemnation.
By the averment in the pleadings the plaintiff has led credible and acceptable evidence in support to prove his claim against all the defendants jointly and severally who by their led
evidence of D.W?S 1 to 4 failed to show how they could be shielded by privileged occasion and justification which they put up as a defence in the alternative from the peculiar facts and circumstances of this case.
The defendant have failed to prove the defence justification by the said false and malicious statement concerning the person of the plaintiff.
Having therefore proved his claim on preponderance of evidence, the plaintiff is entitled to his claim against the defendants as claimed in paragraph 23 item 1 in the sum of 6M. Damages jointly and severally against the defendants with the exception of items ii & iii on the interest and cost.
Judgment entered for the plaintiff against the defendants.?
Miffed by the above decision, the appellants appealed to this Court, challenging the decision of the Lower Court on 6 grounds.
The 6 grounds of appeal are produced hereunder for ease of reference (particulars of the grounds are excluded):
?Ground One
The decision of the Court below is against the weight of the evidence.
Ground Two
The Court below erred in law when it held that the
appellants defamed the character of the respondent and awarded N6 Million as general damages against the appellant in favour of the respondent despite the fact that in the course of the trial, the respondent failed to lead evidence in support of the exact defamatory words alleged uttered by the appellants against the respondent as pleaded in paragraph 5 of the respondent?s amended statement of claim.
Ground Three
The Court below erred in law when it held the 2nd appellant liable in damages for allegedly defaming the character of the respondent despite the fact that no evidence was led by the respondent to prove that the defamatory words purportedly uttered by the 2nd appellant as pleaded in paragraph 6 of the respondent?s amended statement of claim was referable to the respondent.
Ground Four
The Court below erred in law when it found for the respondent and awarded general damages against the appellants for allegedly defaming the character of the respondent despite the fact that the respondent never pleaded the fact of publication of the alleged defamatory statements to identified and named third parties in the
respondent?s amended statement of claim as required by law.
Ground Five
The Court below erred in law when it dismissed the defenses of the qualified privilege and justification raised by the appellants at the trial despite the fact that sufficient evidence was placed before it to sustain the said defences.
Ground Six
The general damages of N6 million claimed by the respondent in the amended statement of claim of the respondent and which was wholly adopted and awarded by the Court below is unreasonable, excessive, arbitrary and at a variance with principles of law applicable in the award of general damages in respect of tortuous claims as in the instant matter.?
The record of this appeal was transmitted to this Court on 17/2/2014 but deemed properly compiled and transmitted on 2/7/2014.
Subsequently, parties filed and exchanged briefs of argument.
The appellant?s brief was filed on 3/9/2015. It was settled by their counsel Sebastine Okeh. Learned counsel to the appellant formulated Six (6) issues for determination.
The issues are:-
?Issue one:
Whether the trial Court was right
in holding that the appellants/defendants defamed the character of the Respondent/plaintiff despite the fact that the respondent failed to set out verbatim the exact defamatory words on his statement of claim as required by law. This is distilled from ground 2.
Issue Two:
Whether the trial Court was wrong to have held that the 2nd appellant defamed the character of the Respondent vis a vis the purported defamatory words in the pleadings and in the circumstances of the alleged statement. From ground 3.
Issue Three:
Whether the trial Court erred in law when it upheld the claimed by the respondent/plaintiff without the respondent properly pleading publication by clearly naming the 3rd parties or the circumstances of such publication as to exclude the naming of the 3rd parties in his statement of claim. Distilled from ground 4.
Issue Four:
Whether the Judge was right when he held in his judgment that the defendants/appellants admitted publication. This is distilled from ground 7.
Issue Five:
Whether the trial Court erred in law when awarded Six million Naira in general damages against the appellants without
proper assessment. This is formulated from ground 6.
Issue Six:
Whether the defence of qualified privilege availed the Defendants/appellants on this case. Taken from ground 5.”
On issue One, the learned counsel submitted that the respondent, in violation of the requirement of law, did not plead verbatim the purported defamatory words, the words stated in paragraph 5 of the amended statement are mere imaginations and fabrications of the respondent.
On issue Two, the learned counsel submitted that the sentence purportedly uttered by the 2nd Appellant as rendered in paragraph 6 of the statement were vague and meaningless without the needed facts as required by the provisions of Order 23 Rules 5 of the Sokoto State High Court (Civil Procedure) Rules 1987 CAP 61 P. 955.
On issue Three, learned counsel submitted that the third parties to whom the defamatory words were published must be named and identifiable in the pleadings. On this submission, he relied on the decision of this Court in Hon. JAMES OMO – AGEGE V JOHN OGHOJAFOR AND 2 ORS (2010) LPELR – 4775 (CA). The learned counsel further submitted that the
respondent/plaintiff failed to disclose the names of the persons to whom publication were made in his amended statement of claim. He urged this Court to disapprove the evidence adduced in proof of publication by the PW2, PW3, PW4 and PW5, as they were not named in the pleadings to identify them with certainty as the 3rd parties to whom the publication was made.
On issue four, the learned counsel submitted that the trial Court was prima facie wrong to have held in his judgment that the defendant admitted publication. Learned counsel submitted further that the consideration of the defence qualified privileged by the Court is only in the light of ?even if? when accepted and it is only an alternative defence not the main defence, he relied in the decision of the Supreme Court in NEWBREED ORGANIZATION LTD V ERHOMOSES (2006) 5 NWLR (PT 947) 499 AT 544 PARAGRAPHS D – C, per Ogbuagu JSC.
On issue five, the learned counsel submitted that the wrong admission and the use of Exhibit A (the medical report) was a clear misapprehension of the quality of the facts pleaded and the evidence led in this trial. He relied on the decision of the Supreme Court
in HARKA AIR SERVICES NIGERIA LTD V KEAZOR ESQ. (2011) 3 NWLR (PT.1264) 320. The learned counsel contended that it was the erroneous consideration of such inadmissible evidence that got the trial Judge to award aggravated sum of N6,000,000.00k as damages.
The learned counsel further submitted on issue five that a perusal of the plaintiff?s statement of claim showed that he did not plead special damages, thus the loss in his business which were in fact necessary to prove such special damages goes to no issue and should not be annexed to nor joined when assessing the general damages of N6,000.000.
On issue Six, the learned counsel submitted for the 1st, 3rd and 4th defendants that even if the claim of the plaintiff against the defendant was upheld, (but which is still vehemently denied as canvassed at the trial Court) the defendant?s in the alternative submitted at the trial Court the alleged statement were made on privileged occasion, and if the trial Court had considered this, it would have come to a different conclusion.
Learned counsel to the appellant humbly urged the Court to grant the reliefs sought and allow this appeal.
The respondent’s brief was filed on 20/11/2015. It was settled by their counsel A. O. Nkanor. Learned counsel to the Respondent formulated Seven (7) issues for determination.
The issues are:
Issue One:
Whether Emmanual Onyeka (the 3rd Appellant) who was always in Court during hearing but failed to testify in is defence, not represented by any of the defence witnesses and had no reason given for his failure to testify at the Lower Court, can be heard to complain against the Lower Court judgment? This is distilled from ground 1,2,4,5 and 7 of appeal.
Issue Two:
Whether the exact defamatory words were set out verbatim by the respondent in his statement of claim or the circumstances of such publication as to exclude the naming of the 3rd parties in the respondent’s statement of claim as required by law. This is a reply to appellant?s issue number 1.
Issue Three:
Whether the trial Court was right to have held that the 2nd appellant defamed the character of the Respondent through the defamatory words admitted by the 2nd appellant herself to have been published by her against the respondent. This is in
reply Appellant’s issue No. 2.
Issue Four:
Whether the Respondent did not name any third party to whom publication was made or the circumstances of such publication as to exclude the naming of the third party in his statement of claim. Distilled from ground Four (4) of the appeal.
Issue Five:
Whether the defence of a qualified privilege and justification avert the appellant in the suit now appealed against. Distilled from ground five (5) of appeal.
Issue Six:
Whether the Respondent’s claim and evidence of witnesses before the Court were evaluated before judgment. Founded on ground 6.
Issue Seven:
Whether the Lower Court was right when it held that the appellants admitted publication. Distilled from ground seven of appeal.
On issue one, the learned counsel submitted that no defence and not even the defence of justified privilege or justification were available for the 3rd Appellant. He urged this Court to answer issue one in the negative.
On issue Two, the learned counsel submitted that the word said to be defamatory in paragraph 5 and 6 of the first statement of the claim(in pages 5 and 6
of the records of proceedings) are not outside the holding in the case of DAUDA OLANIYI V AJIBADE ELARO (2008) ALL FWLR. He further submitted that no witness was expected to memorize what was spoken by someone or more than one person at different occasions and dates and to repeat them verbatim subsequently many months or years thereafter; the true test was to consider the evidence by the witnesses agreed with the facts pleaded. He urged this Court to consider issue two in the positive.
On issue three, the learned counsel submitted that the fact that ?Lanco? was not stated in the statement of claim as plaintiff?s nickname, could not be said to be fatal to the plaintiff?s case as it was not all details that must be stated in the pleading. He relied on the decision of the Court in DALIMO V THE SKETCH PUBLISHING COMPANY. LTD (1972) 7 NSCC 414 R. I.?The learned counsel further submitted that following the admission by the 2nd appellant herself of making the defamatory statement against the respondent to NAPTIP officials as third party to NAPTIP office and also to plaintiff?s wife to the hearing of one Abdullahi who testified as
Pw4, the Respondent was deemed to have proved the fact that the 2nd Appellant (Stella Nnebedim) made the defamatory statement complained of against the Respondent. He urged this Court to answer this issue in the positive.
On issue four, the learned counsel submitted to whom the publication was made were described by the Respondents. He further submitted that not naming of 3rd parties in pleading could be exclused where the facts had been admitted by the adverse party.
On issue five, the learned counsel submitted that for the defence of qualified privilege to avail the Appellants, they must show that they said what they said in the course of a duty or that they have interest or a combination of both, and so also the 3rd party to whom the publication was made. He further submitted that the appellants failed to plead the defence of qualified privilege in any part of their statement of defence, hence the defence of qualified privilege did not avail any of the appellants. He urged this Court to answer this issue in the negative.
?On issue Six, the learned counsel submitted that the Lower Court did evaluate the claim of the respondent (as plaintiff
at Lower Court), vis – a – vis the evidence of all the witnesses in court before giving its judgment.
He referred this Court to pages 145 ? 226 of the record of proceedings where the Lower Court Judge made reference to the evidence of each of the witnesses and evaluated them before arriving at its findings. He urged this Court to answer this issue in the positive.
On issue seven, the learned counsel submitted that the 3rd appellant ( as 4th defendants) who intentionally refused or failed to give evidence in defence of himself even when he was in Court to hear the evidence of the plaintiff and his witnesses against the defendants which included himself as having made the said publication against the Respondent in the house of the respondent?s-in?law at U/Rogo Sokoto and also even when he was in Court to hear the evidence of 2nd Appellant (as 3rd defendant) as the person who accompanied him to NAPTIP office to make the said publication complained of by the Respondent (supra) and who did not make any effort to have any other witness to testify on his behalf and who did not give any excuse for not testifying, was deemed to have
admitted the plaintiff?s claim against him. He urged this Court to answer this issue in the negative.
Learned counsel to the Respondent urged this Honorable Court to dismiss this appeal in its entirety and confirm the judgment of the Lower Court with award of substantial cost in favor of the Respondent.
The Appellant?s Reply Brief was filed on 27/01/2016. It was settled by their counsel Okeh Sebastine.
Learned counsel to the appellant contended that the Respondent raised a new issue in ?whether Emamanual Onyeka (the 3rd Appellant who was always in Court during the hearing but failed to testify in defence, not represented by any of the defence witness and had no reason given for his failure to testify at the Lower Court judgment?. He further contended that this issue cannot be fixed on any of the grounds of Appeal filed by the Appellant.
Learned counsel to the Appellants urged this Court to declare the offending issue 1, 2, 3, 4, 5 and 7 raised in the Respondent ?s brief as defective and incompetent. He urged this Court to allow the appeal.
?I have carefully considered the submissions of the learned
counsel on both sides as per their respective briefs of argument, and the contents of the record of this appeal.
I have deeply considered the issues formulated for determination by learned counsel on both sides. I am of the respectful view that they can be condensed into three as below:
?ISSUE ONE:
Whether from the pleading of the parties and the evidence adduced by the learned trial Judge, rightly evaluated the evidence and arrived as a just decision in the circumstances of this case.
ISSUE TWO:
Whether the defence of qualified privilege was available to the defendants in the circumstances of the case.
ISSUE THREE:
Whether the award of six million naira damages against the appellants was right in having regard to the circumstances of this case.?
I shall proceed to decide this appeal in the light of the above three issues.
ISSUE ONE:
Whether from the pleadings of the parties and the evidence adduced the learned trial Judge rightly evaluated the evidence and arrived at a just decision.
In resolving
this issue, there is need to reproduce paragraphs 4 ? 15 of the plaintiff?s amended statement of claim which are very pertinent:-
?4. The plaintiff aver that sometimes respectively on 3/12/2008, 4/12/2008, 5/12/2008 and 10/12/2008 the defendant jointly and severally maliciously defamed the character of the plaintiff by publishing to the hearing of 3rd parties respectively at the resident of the plaintiff?s in ? law at U/Rogo Area in Sokoto; at plaintiff?s business place along Ahmadu Bello way, Sokoto; at Sahara Area, Sokoto and also at Diplomat Area, Sokoto.
5. The plaintiff aver that the defamatory word/publication uttered by the defendants against and concerning the plaintiff, include: 17
That ?Linus Ibegbu (the plaintiff) raped his 10 years old house girl and also had sexual intercourse with his mother in ? law and ?that? he did so for money rituals.?
6. That the plaintiff aver that when he attempted to defend himself, the 3rd defendant said to hearing of those people at present:
?Lanco, you fucked your girl, you are a ritualist.?
7. The
plaintiff aver that the said publications were made in English, Hausa and Igbo Language to the 3rd parties who hear and understand the said three languages.
8. The plaintiff aver that the 3rd parties to whom the said publications were made, include the plaintiff?s in ? law, plaintiff?s sales boys, driver, business partners, friends, customers, church members and kinsmen.
9. The plaintiff aver that he did not commit any of the above acts maliciously alleged against him by the defendants.
10. the plaintiff aver that following the allegation of rape of his house girl and the plaintiff?s denial the said girl by name CHINAZA ONYEKA was taken to UDUTH where she was then referred to the Anatomy Department of the Usman Danfodio University, Sokoto on 2/12/2008 for medical examination and report same was carried out.
The plaintiff pleads and shall rely on copy of the said medical report and receipt of payment for the medical examination at the trial.
11. The plaintiff aver that despite the medical report, the defendants still continued with the said publication (supra) even thereafter.
12. The plaintiff aver that
the defendants have been trying on many occasions, to intimidate, or induce or entice the said plaintiff?s house girl too make her allege in support of their malicious allegation that the plaintiff raped the girl, so as to justify their publications.
13. The plaintiff aver that even again on 16/1/2009 the 3rd defendant still went to NAPTIP office at No. 4 Kalgo Road, R/Sambo, Sokoto and lodge a complaint against the plaintiff alleging that the plaintiff raped his 10 years old minor house girl by name Chinaza.
14. The plaintiff aver that the NAPTIP officials investigated the rape allegation and discovered that it was false, yet the defendants are still busy defaming the character of the plaintiff on that allegation.
15. the plaintiff aver that the said house girl was beaten for disobedient, in the course of which she sustained injury on her face and skin on the 3/12/2008 but not raped nor was there any rape attempt on her?.
It is necessary to state that the 1st defendant at the Lower Court is not a party to this appeal.
?From the statement of claim, the defamatory words were published on 3/12/2008, 4/12/2008, 5/12/2008
and 10/12/2008 by the defendants jointly and severally. In his evidence in chief, the plaintiff explained in details what happened as follows:-
“(1) 3/12/2008:
The 1st, 2nd, 4th and 5th defendants went to Mr. and Mrs. Onyeka and told them that the plaintiff (Respondent in this appeal) raped his ten years old girl. 2nd, 4th and 5th are 1st, 3rd and 4th appellants in this appeal.
RESULT:
Mr. Onyeka, the guardian of the house girl, Chinaza Onyeka took the girl to the hospital for medical examination.
(ii). 4/12/2008:
The 3rd defendant at the shop of the plaintiff at Ahmadu Bello Way Sokoto shouted and said that the plaintiff raped his 10 years old girl Chinaza and had sexual intercourse with his mother in ? law for ritual purpose to the hearing of plaintiff?s wife, and Abdullahi Ibrahim and Mrs. Durathy Onyeka.
(iii). 5/12/2008:-
3rd defendant repeated the defamatory words to the hearing of plaintiff?s wife.
(iv). 10/12/2008:-
5th defendant told Mr. Jeen Ohiya and Felix Ogbunna that the plaintiff raped his house girl.?
?I also want to properly identify the personalities
involved.
The 1st defendant is dead. This leaves the 2nd ? 5th defendants who are now 1st ? 4th appellant.
2nd defendant is a son of the deceased 1st defendant and a brother to the 3rd defendant. 4th defendant is a cousin to the 2nd defendant. 5th defendant however is an uncle to the 2nd defendant.
The plaintiff is their in law. The plaintiff is married to Chioma Onyeka, daughter of Joseph Onyeka; the brother of the 4th and 5th defendants, according to the plaintiff himself on page 19 of record. The meaning of the above is that the incident now on appeal happened between in ? laws (marital relations).
What was published? This is clear from the pleadings and the evidence. The parties are not in doubt on this. The meaning of the words and their defamatory nature are also not in doubt. They are to the effect that the plaintiff raped his ten years old house girl and had sexual intercourse with his mother in law. It is an imputation of criminal offence.
?Who published what and when was the publication done?
It is clear even from the evidence of the plaintiff that the event that took place on 3/12/2008 was a
family meeting for the purpose of settling a family issue. The incident of 3/12/2008 involved 1st, 2nd, 4th & 5th appellants. It needs be stated at this juncture that the discussion of 3/12/2008 was between interested members of the family on the fate of Chinaza. The purpose was to resolve the family issue. It appears to me clear that what was discussed during the attempt to settle the incident enjoyed qualified privileged. I shall comment on this later in this judgment.
If what was said in 3/12/2008 enjoyed qualified privilege, that of 4/12/2008 and 10/12/2008 did not. That of 4/12/2008 involved the 2nd appellant while that of 10/12/2008 involved the 4th appellant.
I have thoroughly gone through the entire proceedings and the evidence of each of the witnesses at the Lower Court. I am unable to see where the 1st and 3rd appellant admitted publishing false allegation against the person of the respondent. The only incident involving the 1st and 3rd appellant was that of 3/12/2008 at the family meeting convened to resolve the Chinaza issue. The meeting ended with prayer.
This Court is an appellate Court which is not allowed to overturn the
findings of fact of a trial Court but attach the greatest weight to the opinion of the trial Judge who saw and heard the witnesses, the reason being that a finding of fact involves both perception and evaluation. See ISMAIL V THE STATE (2011) LP ELR – SC 85/2009 at 46. However when the findings of fact are perverse having regard to the evidence before the Court and are not based on the fact of the trial Judge having seen and heard the witnesses, a Court of Appeal can disturb such findings. See OLAREWAJU V GOVERNOR OF OYO STATE (1992) NWLR (PT 265) 335; BAMGBOYE & ORS V OLAREWAJU (1991) 5 SC. 104; NARUMAL & SONS NIG LTD V NIGER BENUE COMPANY LTD (1989) 2NWLR (PT 106) 730 at 762; WOLUCHEM V GUDI (1981) 5 SC 319 at 326; AKPAPUNA V NZEKA (1983) 2 SC NLR 1.
His lordship failed to view the incidents of 3/12/2008, 4/12/2008 and 10/12/2008 as involving different parties. This is in my view has led to miscarriage of justice in the sense that the 1st and 3rd appellants have been penalized in damages for the incident of 4/12/2008 and 10/12/2008 which did not involve them at all. The findings of facts of the Lower Court as they affect the 1st and 3rd
appellants have to be disturbed on the ground of being perverse.
However, as concerning the 2nd and 4th appellants there is sufficient evidence on record to sustain the judgment of the Lower Court.
What is slander? It is spoken libel. It is slander because it is not in written form.
?Akintan JSC. In ILOABACHIE V ILOABACHIE (supra) explained what the plaintiff must prove to sustain an action in libel thus
“The law is settled that to sustain an action in libel the plaintiff must prove that
(1). the publication was in writing
(2). the publication was false.
(3). the false publication was made to a person apart from the plaintiff and the defendant.
(4). the publication referred to the plaintiff and was defamatory of the said plaintiff and
(5). the publication was made by the defendant. See DIN V AFRICAN NEWSPAPER OF NIGERIA (1990) 3NWLR (PT 139) 392; ONYEJIKE V ANYASSOR (1992) 1 NWLR (PT 218) 437; NSIRIM V NSIRIM (1990) 3 NWLR (PT 138) 285 and ONU V AGBESE (1985) INWLR (PT 4) 704.
The onus is on the plaintiff in an action for 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 person possessing some particular facts. See UNION BANK NIGERIA LTD V OREDEIN (supra) 355 at 372?
I agree totally with the learned trial Judge that the plaintiff proved the claim of defamation (slander) against the 2nd and 4th appellants. The defendants could not prove the truth of the allegations made against the plaintiff.
It has been argued that the exact words used by the defendants were not pleaded by the plaintiff. In truth, the Supreme Court in OLAIFA V AINA (1993) 4NWLR (PT 286) 192; OKAFOR V IKEANYI (1979) 3 ? 4 SC 99; SKETCH PUBLISHING COMPANY LTD v AJAGBE MOKEFERI (1989) 1 NWLR (PT 100) 678, had held that it is necessary that the exact words used should be pleaded. This is to enable the Court determine whether or not the words used were actually defamatory. However in this case, the slanderous statements were admitted by the defendant. See paragraphs 18, 20, 21, 23 of the Joint Statement of Defence. There
is also no doubt as to their defamatory nature being imputation of crime. The defamatory nature of the statements are not disputed by the parties. So the facts of the above cases are distinguishable from the facts of this instant appeal.
Again, it has been submitted that the names of persons to whom the defamatory statement was published ought to have been pleaded by the plaintiff, but he failed to do so. This, in my view is not correct.
In paragraph 8 of his amended statement of claim, the plaintiff averred as follows,
“The plaintiff aver that the 3rd parties to whom the said publication were made include plaintiffs in ? law. Plaintiff?s sales boys, driver, business partners, friends, customers, Church members and kinsmen”
In evidence, the plaintiff called Felix Ogbunna, PW2, his kinsmen PW3, Joseph Onyeka, his in-law PW4 Abdullahi Ibrahim his driver and Terry Julius Gande, 5th PW, who used to buy accessories for POP in ceiling from the plaintiff to confirm the slander.
I am of the considered view that the plaintiff proved his claim.
I therefore have no hesitation in resolving issue no 1 in
favour of the 1st and 3rd appellants.
ISSUE NO 2:
Whether the defence of the qualified privilege was available to the defendants in the circumstances of this case.
What is qualified privilege?
In ILOABACHIE V ILOABACHIE (2005) 13 NWLR (PT 943) 695, Acholonu JSC defined it thus:
“Qualified privilege is a defence to an untrue publication it can only be claimed however when the occasion of the publication is shown to be privileged.”
His lordship added
“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”
His lordship Pats Acholonu JSC explained further Thus:
?”Where a Court is considering the defence of privilege whether qualified or not, there are some empirical factors that should be taken into consideration and these include the interest of any of the persons to whom the document was published and the
circumstances of the matter in question – — —
Equally too the Court should consider the motive for the publication to examine whether it is actuated by purely altruistic principle or tendencies or malicious motive. See also EMEAGWARA V STAR PRINTING AND PUBLISHING COMPANY LTD (2000) 10 NWLR (PT 676) 489″
Was the defence available to any of the defendants?
As aforestated earlier in this judgment, the alleged defamatory statements were made on three different occasion ? 3/12/2008, 4/12/2008 and 10/12/2008.
The event of 3/12/2008 involved the 1st, 2nd, 4th and 5th defendants who are now 1st, 3rd and 4th appellants. They are all in – laws of the Respondent.
The respondent was also present at the meeting held to resolve the issue of alleged rape of Chinaza. The meeting ended with a prayer after the respondent had apologized for what is not clear from the proceedings.
A meeting between in-laws to resolve such an ugly issue like alleged rape of a house-girl is in my view, a meeting between interested parties with altruistic and the moral motives. In my view, the defence of qualified privilege is
available in respect of statements made in the course of that meeting. In other words, any statement made by any of the 1st and 3rd appellants at that meeting was covered by the defence of the qualified privileged. It needs to be noted that the 1st and 3rd appellants were only involved in the incident of 3/12/2008. They could therefore not be punished or penalized for what was said during subsequent events. The defence of the qualified privilege is however not available in respect of subsequent events of 4/12/2008 and 10/12/2008. I therefor resolve issue No 2 against the Respondent.
I have gone through the pleadings particularly paragraph 9-17 of the Joint Statement of Defence of the Defendants. I am convinced that there are sufficient averment therein to sustain the defence of qualified privilege in favour of the 1st and 3rd appellants.
The phrase QUALIFIED PRIVILEGE is not a magical phrase that must be specifically invoked for the defence to be raised, inspite of sufficient details supplied in the pleading of the defendant. The plaintiff (now respondent) could not (reasonably) have been taken by surprise at the trial Court in the face of
the detailed pleadings on the defence. See Order 24 Rule 6 (1) Court Civil Rule Sokoto State.
ISSUE THREE
Whether the award of 6 million naira damages against the appellants is right in the circumstances of this case.
I need to first state under this issue that having regard to what had be stated earlier to the effect that the defence of qualified privilege is available to the 1st and 3rd appellants the resolution of issue No 3 will only affect the 2nd and 4th appellants.
What is the nature of the defamatory statement? It is an imputation of crime. The respondent was alleged to have raped his 8 years old house girl. A slander, when it is an imputation of crime is actionable per se. OLANIYI V ALERO (2008) ALL FWLR (PT 411) PAGE 983; EGBE V ADEFAFARASIN (1987) I SC. 1 at 20.
In awarding damages, the Court will take into consideration (a) the standing of the plaintiff in the society (b) the impact of the words complained on the career of the plaintiff (c) the moral standing of the plaintiff (d) the impact of the words complained of on the marital status of the plaintiff (e) the unjustifiability of the attack on the
plaintiffs reputation (f) the depreciation in the value of the currency due to inflation. See ALAWIYE V OGUNSANYA (2004) (PT 864) 486.
I have gone through the judgment of the learned trial Judge. The learned trial Judge failed with due respect to disclose what factors he took into consideration in awarding 6 million naira damages jointly and severally against the defendants.
The test for whether damages are excessive is whether it exceeds the highest sum that any reasonable jury might have considered appropriate. See KIAM V MGN LTD (2002) EWCA CIV 43.
According to Sir Thomas Bingham M. R. (1996) 2ER 35
“It is our view offensive to public opinion and rightly so that the defamation (sic) plaintiff should recover damages for injury to his reputation greater, perhaps by a significant factor than if that same plaintiff had been rendered a helpless cripple or an insensate vegetable”
I have deeply considered the above principles alongside the facts of this case, and the award of six million naira awarded by the learned trial Judge. I have also considered the fact that the appellants did not apologize but kept on hammering on
the slander even during the proceedings. I have also noted the fact that the Respondent was at all material time the chairman of his tribal community meeting in Sokoto.
The award of one million naira as damages against the each of the 2nd and 4th appellant is in my view adequate compensation for the Respondent. I resolve issue No 3 in favour of the appellants.
In the circumstances, this appeal succeeds in part. The judgment and award of damages of the Lower Court as they affect the 1st and 3rd appellants are hereby set aside. I hereby order that the plaintiff’s claim against each of the 1st and 3rd appellants fail and it is hereby dismissed. I award 1 million naira damages against each of the 3rd and 5th defendants (2nd and 4th appellants) but in favour of the plaintiff/respondent.
PAUL ADAMU GALINJE, J.C.A.: I have read before now the judgment just delivered by my learned brother Awotoye JCA, and I agree with the reasoning contained therein and the conclusion arrived thereat. Appeal allowed in part. I endorse the consequential orders made therein including order as to costs.
MUHAMMED L.?SHUAIBU, J.C.A.: I agree
?
Appearances
O. Okeh Esq. with him, T. M. Itumu Esq.For Appellant
AND
A. O. Nkafor Esq.For Respondent
