CHILKIED SECURITY SERVICES AND DOG FARMS LIMITED v. SCHLUMBERGER NIGERIA LIMITED & ANOR(2018)

CHILKIED SECURITY SERVICES AND DOG FARMS LIMITED v. SCHLUMBERGER NIGERIA LIMITED & ANOR

(2018) LCN/4623(SC)

In The Supreme Court of Nigeria

On Friday, the 27th day of April, 2018

SC.85/2007

RATIO

MEANING AND NATURE OF THE TORT OF DEFAMATION

Defamation, as a tort, whether as libel or slander, has been judicially defined to consist 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, opprobrium or ridicule or to injure his reputation in his office, trade or profession or to injure his financial credit. See: NITEL Vs. Tugbiyele (2005) ALL FWLR (PT. 246) 357; Edem vs. Orpheo Nig. Ltd. (2003) 7 SC 92 @ 101. Every person has a right to the protection of his good name, reputation and the estimation in which he stands in the society. Therefore, whoever publishes anything injurious to that good name or reputation commits the tort of libel. Slander consists of a false and defamatory statement (of a transient nature) made or conveyed by spoken words, looks, signs and gestures or in some other non-permanent form. Libel, on the other hand is required to be in some permanent form. To be defamatory, the libel or slander must have been published of and concerning the plaintiff, to a person other than the plaintiff, without lawful justification or excuse. See: Egbe Vs. Adefarasin (1987) 1 NSCC (vol. 18) 1; Oruwari vs. Osler (2013) 5 NWLR (pt. 1348) 535; Ekong vs. Otop & Ors. (2014) 5-6 SC (pt. 1) 33 @ 55. The test of whether a statement is defamatory or not consider what the meaning of the words would convey to an ordinary person. See: Okolo Vs. Mid-West Newspaper Corp. (1977) NSCC 11; Dumbo vs. Idugboe (1983) 1 SCNLR 29; Agbanelo vs. Union Bank of Nig. Ltd. (2000) 7 NWLR (Pt.566) 534. The onus is on the plaintiff to prove that the words conveyed an extraordinary meaning to those to whom they were published. See: The Sketch Publishing Co. Ltd. Vs. Ajagbemokeferi (1989) 1 NWLR (pt.100) 678; (1989) 2 SC (Pt. II) 73; Agbanelo Vs. Union Bank of Nig. Ltd. (supra); Ekong Vs. Otop (supra). PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

WHETHER A LIMITED LIABILITY COMPANY CAN SUE FOR DEFAMATION

In Oduntan Vs. General Oil Ltd. (1995) LPELR-2249 (SC) 1 @ 14 A – B; (1995) 4 NWLR (Pt. 387) 1 @ 14 C – D. this Court held thus: “A company can sue for defamation. It has reputation and goodwill which can be protected. An injury to its reputation can lead to loss of its goodwill. The Courts will, in appropriate cases, protect the reputation and goodwill of a company by award of damages and injunction. While it is true that a company, being an artificial person, is incapable of having natural grief and distress, this does not mean the same thing as its reputation in the way of its trade and business.” See also: Edem Vs Orpheo Nig. Ltd. (supra) @ 102 – 103. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

WHETHER IN AN ACTION FOR DEFAMATION THERE IS THE NEED TO PROVE MALICE; POSITION OF THE LAW WHERE THE DEFENCE OF QUALIFIED PRIVILEGE IS RAISED

Malice is implied from the mere publication of the defamatory matter. One of the exceptions is where the publication was made on a privileged occasion i.e. a defence of qualified privilege is a complete defence to an action for defamation. In the case of NTA Vs. Babatope (1996) 4 NWLR (Pt. 440) 75 @ 96 F – G, it was held that qualified privilege is a defence to an untrue publication, which can only be claimed when the occasion of the publication is privileged. This Court in the case of Iloabachie Vs. Iloabachie (2005) 5 SC (Pt. II) 146, cited with approval, the dictum of Lord Esher, MR in Pullman Vs Hill Ltd. (1891) 1 QB, on what is meant by qualified privilege, to wit: “An occasion is privileged when the person who makes the documentation has a moral duty to make it to the person to whom he does make it and the person who receives it has an interest in hearing it. Both these conditions must exist in order that the occasion may be privileged.” See also: Bakare vs. Ibrahim (1973) 6 SC (Reprint) 147 @ 152 – 153, where this Court held thus: “In an action for defamation, it is usual to allege in the statement of claim that the words were printed and published “falsely and maliciously”. If the publication is shown to be false, malice is inferred by operation of law; it is enough to show that the words complained of, 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”… It should always be borne in mind that, once the plea of fair comment or qualified privilege is made out, … the inference of malice is rebutted and the burden is thrown upon the plaintiff of showing and proving ‘express malice’ against the defendants. This is generally known as “malice in fact,” and to be able to discharge the onus at the trial it is important that the plaintiff should deliver a reply, alleging express malice and giving particulars of the facts from which such malice is to be inferred.” See also: Mainstreet Bank Ltd. & Anor. Vs. Binna (2016) 1- 2 SC (Pt. IV) 140 @ 145 – 148. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

JUSTICES

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

PAUL ADAMU GALINJE Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

CHILKIED SECURITY SERVICES AND DOG FARMS LIMITED Appellant(s)

AND

SCHLUMBERGER (NIG) LTD
2. MR. PHILIPS MAQUET Respondent(s)

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Port Harcourt Division delivered on 13/4/2006 setting aside the judgment of the High Court of Rivers State sitting at Port Harcourt delivered on 28/11/97.

The appellant herein, a limited liability company, instituted an action before the High Court of Rivers State, seeking N10 million damages for libel and an order of injunction against the respondents. The appellant is a security company engaged by the 1st respondent to provide security guards for its various properties, including its office and warehouse, residential estate and youth corpers’ residence at different locations within Port Harcourt. As a result of incessant complaints of stealing and breaking into apartments in the staff quarters at the residential estate, its contract was terminated. It was the appellant’s contention at the trial Court that the respondents by their letter dated 2/3/92 titled “Threats from the manager of Chilkied Security Services,” published libel against it to the following persons:

(i) the Commissioner of Police Rivers State, Mr.O.O. Onogie,
(ii) the Police,
(iii) the Chief Security Officer at the University of Science and Technology, Port Harcourt, and
(iv) the general public.

It was its further contention that the publication was actuated by malice and for the purpose of discrediting and ruining its business. The appellant also claimed that as a result of the libel, it had lost the custom of 21 companies, whose names were pleaded in paragraph 20 of its Amended Statement of Claim. The respondents filed an Amended statement of Defence wherein they raised the defences of qualified privilege and justification. At the trial, the appellant called three witnesses while the respondents called two witnesses in their defence. Documentary evidence was also tendered and relied upon. At the conclusion of the trial, the learned trial Judge entered judgment in the appellant’s favour. He awarded the sum of N3,500,000.00 as general damages for libel and granted the order of injunction. The respondents were dissatisfied with the judgment and appealed to the lower Court.

In a considered judgment delivered on 13/4/2006, the appeal was allowed and the judgment of the trial Court was set aside.

The appellant is aggrieved by the decision and has appealed to this Court via a Notice of Appeal filed on 12/7/2006 containing four grounds of appeal. At the hearing of the appeal on 29/1/2018, OSAHON IHENYEN ESQ. adopted and relied on the appellant’s brief, which was deemed filed on 27/2/2008, in urging the Court to allow the appeal and restore the judgment of the trial Court. S.A. SOMIARI ESQ., leading I.L. OKOYE ESQ, adopted and relied on the respondents’ brief deemed filed on 29/1/18 in urging the Court to dismiss the appeal. Learned counsel for the appellant formulated four issues for determination as follows:
1. Whether the Justices of the Court of Appeal properly considered the effect of malice on the defence of qualified privilege as raised by the respondents even where there is reciprocity of interest between the writer and the receiver.
2. Whether the Justices of the Court of Appeal were right or wrong in their evaluation of the facts when they held that the trial Court failed to consider the truth of the information.

Whether the Justices of the Court of Appeal erred in law when they held that the appellants case failed because the situation in which the words were published were privileged without applying the legal effect of malice as pleaded by the appellant.
4. Whether the Justices of the Court of Appeal properly evaluated the facts when they held that the effect of the words on third parties was not brought to the fore at the hearing.Learned counsel for the respondents adopted the issues formulated by the appellant. Learned counsel for the appellant argued Issues 1 and 3 together, while learned counsel for the respondents argued them separately as Issues 1 and 2. Since Issues 1 and 3 are two sides of the same coin, I shall adopt the appellant’s method and consider them together.

ISSUES 1 & 3
Whether the Justices of the Court of Appeal properly considered the effed of malice on the defence of qualified privilege as raised by the respondents even where there is reciprocity of interest between the writer and the receiver.
Whether the Justices of the Court of Appeal erred in law when they held that the appellants case failed because the situation in which the words were published were privileged

without applying the legal effect of malice as pleaded by the appellant.

Before delving into the submissions of learned counsel, I deem it appropriate at this stage to reproduce paragraph 5 of the Amended Statement of Claim wherein the alleged libel was pleaded:
“5. On or about the 2nd day of March 1992, the 1st defendant through the 2nd defendant falsely and maliciously wrote and published or caused to be written and published in a type-written letter signed by the said 2nd defendant to the Commissioner of Police, Rivers State Command, Mr. O.O. Onege of and concerning the plaintiff the following: –
Our Ref. No. 92/SNL/PM/II/087
02/03/92
The Commissioner of Police
Rivers State Police Command,
Port Harcourt.
Attn: O.O. Onege
Dear Sir,
SUBJECT: THREAT FROM THE MANAGER OF CHILKIED SECUTIRY SERVICES
I am bringing forward to your office and your direct notice various incidents which demand your immediate attention.
Before the removal of Chilkied Security Services from the Schlumberger residential camp at Rumuogba, the Manager of Chilkied Security Services went to the residential camp

supervised by Mr. Guy whom he (Manager of Chilkied) now told to relay to me the following:
1. That himself (the Chilkied Service Manager) would organize for Messrs GUY, LETARTRE AND MANQUET to be shot.
2. Iterated that he had armed robbers on his monthly payroll and that he was well able to employ their services to do the above job.
3. The Manager of Chilkied Security Services further went ahead to inform one of the expatriates, Mr. J. Bedford that he would set fire to hall (sic) the residential camp.
Notwithstanding the above threats, we have effected his removal. We wish to bring the above to your notice, Sir, in order that you may assist in ensuring both the safety of lives and property by taking whatever actions you deem fit, to avoid any unpleasant incident.
Yours faithfully;
SCHLUMBERGER (NIG) Ltd.
P. MAQUET
East Nigeria District Manager.”

The said letter was admitted in evidence at the trial and marked Exhibit B. Learned counsel for the appellant referred to the case of Edem vs. Orpheo Nig. Ltd. (2003) 13 NWLR (pt. 838) 537 @ 558 C-D, where it was held that

“a defamatory imputation consists of publication to a third person or persons of words or matter which tend to lower the person defamed in the estimation of right thinking members of the society generally …. or to injure his reputation in his office, trade or profession or to injure his financial credit.” He submitted that the word “person” in this con under Nigerian Law admits of and includes artificial persons such as a corporation sole, a company, or any body of persons corporate or incorporate. He argued that in the circumstance, the appellant, a limited liability company, is capable of being defamed and was indeed defamed by Exhibit B. He relied on the dictum of Ayoola, JSC in Offoboche Vs. Ogoja Local Government (2001) 16 NWLR (Pt. 739) 458 @ 485 A – D. He argued that to publish words to the effect that a security company has armed robbers on its payroll is defamatory and injurious to the company’s reputation in its office, trade and profession.

He submitted that it is not necessary for a plaintiff to prove publication where the publication has been admitted, and that what the plaintiff is required to establish is the reaction of a third party to the publication.

He cited the case of Iwueke Vs Imo Broadcasting Corporation (2005) 17 NWLR (Pt. 955) 447 @ 482 – 483 G – A & 483 E – F. He submitted that in the instant case the publication of Exhibit B is not in doubt, as there was evidence before the trial Court to show that not only did the Police receive it, it also acted upon it. He submitted that the publication of Exhibit B is actionable per se, without further ado. He relied on Clerk and Lindsell on Torts, 14th edition at page 945. He argued that a defence of qualified privilege will be defeated where it is shown that the publication was actuated by malice. He referred to: Emeagwara Vs Star Publication Co. Ltd. (2000) 10 NWLR (Pt. 676) 489 @ 515 F – G. He noted that the Police investigated the respondents’ complaints and found them to be unfounded and advised the respondents to tender an apology to the appellant. He submitted that a letter was also written by its solicitors demanding an apology but the respondents remained adamant and refused to comply.

Learned counsel submitted that the learned trial Judge was right when he held that the respondents’ plea of qualified privilege could not be sustained, having regard to the outcome of the Police investigation, which found that their allegations were unfounded. He submitted that the finding of the learned trial Judge was borne out of a proper assessment of the witnesses and evaluation of evidence, which is the primary function of a trial Court. He posited that the trial Court having correctly carried out its duty, what the lower appellate Court was required to do was to ascertain whether there was evidence on the record which supports the conclusion reached. He submitted that once there is sufficient evidence, the appellate Court was not at liberty to interfere. He relied on: Ezekwesili vs. Agbapuonwu (2003) 9 NWLR (pt. 825) 337 @ 380 – 381 G-E; Iwuoha vs. NIPOST (2003) 8 NWLR (pt. 822) 308 @ 344 C-D.

Learned counsel relied on the definitions of various forms of malice contained in Black’s Law Dictionary, 6th edition at page 957 and submitted that the respondents’ conduct has shown that the libelous statements were actuated by “particular malice” i.e. malice directed against a particular individual.

He submitted that three elements are necessary in order to establish a defence of qualified privilege, to wit: the occasion must be fit; the matter must have reference to the occasion; and it must be published from right and honest motive. He referred to Clerk and Lindsell (op. cit.) at page 998 paragraph 1739. He submitted that the conduct of the respondents, as depicted in the evidence before the trial Court, woefully failed to meet the criteria for the defence. He submitted that the respondents’ failure to impeach the appellant’s testimony regarding malice is fatal, as the evidence is deemed admitted.

Learned counsel for the respondent, in opposition, submitted that once the defence of qualified privilege is raised and proved, it is a complete defence to an action for defamation. He submitted that for the defence to be made out, there must be a reciprocity of interest between the writer and the receiver. While conceding that the evaluation of evidence and ascription of probative value thereto is the exclusive preserve of the trial Court, he submitted that an appellate Court would interfere with the findings of a trial Court where the findings are perverse. He relied on: Ayeni vs. Adesina (2007) ALL FWLR (Pt. 370) 1451, wherein the special circumstances that would render a finding perverse, were spelt out.

Learned counsel submitted that in considering the allegation of malice pleaded by the appellant, the learned trial Judge relied solely on the Police report without ascertaining the truth of the allegation in Exhibit B. In other words, the trial Court failed to consider whether or not the threats alleged in Exhibit B were in fact made. He noted that in leading evidence on the alleged malice, PW1, the Managing Director of the appellant, testified that the appellant was commissioned by its employer, Dowell Schlumberger, to advise it on the security problems of Rumuogba camp and to recommend permanent solutions. The recommendations were contained in a document, which was admitted in evidence as Exhibit H. He noted that it was the appellant’s contention that the 2nd respondent was not pleased with the recommendations, and therefore Exhibit H was one of the reasons for the malice. He submitted that in resolving the issue of malice, the learned trial Judge relied on Exhibit H, which was not addressed to any of the respondents nor was there any evidence that the document came into their possession.

He referred to the evidence of DW1 to the effect that there are several companies under the Schlumberger group, which are limited liability companies and independent of each other and that Dowell Schlumberger, which purportedly commissioned the appellant to assess the existing security arrangements and make recommendations, is not the same company as the 1st respondent. He noted that under cross examination, DW2, to whom the threat referred to in Exhibit B was allegedly made, stated that he was not aware of the recommendation made in Exhibit H to the effect that he and one Mr. Letartre should be removed. He noted that DW2 further testified that Mr. Letartre was not an employee of the 1st respondent. He submitted that the learned trial Judge totally misconceived the law relating to defamation in this case.

He submitted that there was no evidence to show that the 2nd defendant and DW2 had any axe to grind with the appellant nor was there any evidence of any ill feelings between the 2nd defendant and PW1. He contended further that it was the duty of the Court to determine whether or not the statement in Exhibit B was made. He was of the view, in the circumstances, that the learned trial Judge did not make

proper use of the opportunity of seeing and hearing the witnesses testify in reaching the conclusion that malice had been proved and the lower Court therefore rightly intervened.

He submitted that once the respondents had raised the defence of qualified privilege, the onus was on the appellant to rebut the presumption, which it failed to do. He referred to: Iloabachie Vs. Phillips (2000) 14 NWLR (PT. 686) 43 @ 57. He argued further that it is not the duty of DW1 or DW2 to discover the truth of the alleged threat contained in Exhibit B, as DW2 had consistently maintained even under cross examination that PW1 made the statements. He submitted that it was the duty of the learned trial Judge who had the benefit of seeing and hearing the witnesses testify and of observing their demeanour to determine the truth.

On the requirement of a corresponding interest where the defence of qualified privilege is raised, he submitted that there need not be a special relationship between the defendant and the person to whom the communication was made, but there must be an interest in the party to whom the communication was made as well as in the party making it.

He relied on: Mamman vs. Salaudeen (2006) ALL FWLR (PT. 298) 1169. He noted that in the instant case, the 2nd respondent who wrote Exhibit B is the head of administration of the 1st respondent and he wrote it in that capacity, strictly for the attention of the Commissioner of Police. He argued that Exhibit B was written under a sense of duty and without malice towards PW1 or the appellant, in the honest belief that the facts stated therein were true and in order to seek protection. He submitted that the Commissioner of Police has a legal and moral duty to receive such complaints and the respondents also have a corresponding duty to make such complaints.

On what constitutes qualified privilege, he referred to the case of: Kanu Vs. Oparaocha (2005) ALL FWLR (Pt. 309) 1499. He noted that in Exhibit B, it is not stated that the appellant is an armed robber or that it has armed robbers on its payroll but rather that PW1 allegedly made such a claim. He maintained that the 2nd respondent had an honest motive in reporting the threat to the Police.

He submitted that the defence of qualified privilege was properly made out by the respondents and the Court below rightly found in their favour.

To be defamatory, the libel or slander must have been published of and concerning the plaintiff, to a person other than the plaintiff, without lawful justification or excuse. See: Egbe Vs. Adefarasin (1987) 1 NSCC (vol. 18) 1; Oruwari vs. Osler (2013) 5 NWLR (pt. 1348) 535; Ekong vs. Otop & Ors. (2014) 5-6 SC (pt. 1) 33 @ 55. The test of whether a statement is defamatory or not consider what the meaning of the words would convey to an ordinary person. See: Okolo Vs. Mid-West Newspaper Corp. (1977) NSCC 11; Dumbo vs. Idugboe (1983) 1 SCNLR 29; Agbanelo vs. Union Bank of Nig. Ltd. (2000) 7 NWLR (Pt.566) 534. The onus is on the plaintiff to prove that the words conveyed an extraordinary meaning to those to whom they were published. See: The Sketch Publishing Co. Ltd. Vs. Ajagbemokeferi (1989) 1 NWLR (pt.100) 678; (1989) 2 SC (Pt. II) 73; Agbanelo Vs. Union Bank of Nig. Ltd. (supra); Ekong Vs. Otop (supra).

It is noteworthy that the appellant in this appeal is a limited liability company. Can a limited liability company sue for defamation The answer is in the affirmative. In Oduntan Vs. General Oil Ltd. (1995) LPELR-2249 (SC) 1 @ 14 A – B; (1995) 4 NWLR (Pt. 387) 1 @ 14 C – D. this Court held thus:

“A company can sue for defamation. It has reputation and goodwill which can be protected. An injury to its reputation can lead to loss of its goodwill. The Courts will, in appropriate cases, protect the reputation and goodwill of a company by award of damages and injunction. While it is true that a company, being an artificial person, is incapable of having natural grief and distress, this does not mean the same thing as its reputation in the way of its trade and business.”
See also: Edem Vs Orpheo Nig. Ltd. (supra) @ 102 – 103.

In an action for defamation, there is no need to prove malice. Malice is implied from the mere publication of the defamatory matter. One of the exceptions is where the publication was made on a privileged occasion i.e. a defence of qualified privilege is a complete defence to an action for defamation. In the case of NTA Vs. Babatope (1996) 4 NWLR (Pt. 440) 75 @ 96 F – G, it was held that qualified privilege is a defence to an untrue publication, which can only be claimed when the occasion of the publication is privileged. This Court in the case of Iloabachie Vs. Iloabachie (2005) 5 SC (Pt. II) 146, cited with approval, the dictum of Lord Esher, MR in Pullman Vs Hill Ltd.

(1891) 1 QB, on what is meant by qualified privilege, to wit:
“An occasion is privileged when the person who makes the documentation has a moral duty to make it to the person to whom he does make it and the person who receives it has an interest in hearing it. Both these conditions must exist in order that the occasion may be privileged.”
See also: Bakare vs. Ibrahim (1973) 6 SC (Reprint) 147 @ 152 – 153, where this Court held thus:
“In an action for defamation, it is usual to allege in the statement of claim that the words were printed and published “falsely and maliciously”. If the publication is shown to be false, malice is inferred by operation of law; it is enough to show that the words complained of, 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”…

It should always be borne in mind that, once the plea of fair comment or qualified privilege is made out, … the inference of malice is rebutted and the burden is thrown upon the plaintiff of showing and proving ‘express malice’ against the defendants. This is generally known as “malice in fact,” and to be able to discharge the onus at the trial it is important that the plaintiff should deliver a reply, alleging express malice and giving particulars of the facts from which such malice is to be inferred.”
See also: Mainstreet Bank Ltd. & Anor. Vs. Binna (2016) 1- 2 SC (Pt. IV) 140 @ 145 – 148.

In the instant appeal, the publication of the alleged libellous statement is not in dispute. The appellant’s contention is that malice was specifically pleaded and proved and therefore the defence of qualified privilege did not avail the respondents. From the authorities cited above, the law presumes malice from the fact of the publication of the alleged libel. The trial Court held that the respondents’ defence of qualified privilege did not avail them because they failed to prove the allegations in Exhibit B beyond reasonable doubt.

The Court noted that the Police investigated Exhibit B and found that there was no evidence that the threatened parties were shot nor any evidence that the hall in the camp was actually burnt down. It also held that the appellant had proved that the respondents were actuated by malice. The lower Court, on the other hand, held that what the trial Court ought to have considered is whether Mr. Guy, who conveyed the threat to the 2nd respondent, was actually given that information. The Court held that having failed to consider the truth of the information, there was no publication of Exhibit B to found an action in libel.

It should be reiterated at this juncture, that Exhibit B was a letter written to the Commissioner of Police in Rivers State by the 2nd respondent, seeking protection on account of a threat allegedly issued by the Managing Director of the appellant, which was relayed through Mr. Guy. There can be no doubt that a person to whom a threat of violence has been made has a moral duty to report such threat to the Police and the Police, charged with the protection of lives and property, has a corresponding duty to receive the information. The police, in this case did not ascertain whether or not such a threat was made.

The focus of its investigation was to determine whether the appellant had armed robbers in its employ, whether any of the named persons in Exhibit B had been shot and whether the hall at the residential camp had been burnt down. In other words, the Police sought to determine whether the threat had actually been carried out. The learned trial Judge relied on the outcome of this investigation for his findings. I agree entirely with the learned Justices of the lower Court, that the issue that should have engaged the mind of the learned trial Judge was whether in fact the threat to Mr. Guy, the Camp Supervisor, which gave rise to the request for protection, was actually made. Having failed to conduct this enquiry, the unchallenged evidence before the Court was that the respondents genuinely feared for the safety of lives and property and sought the protection of the Police to avert any unpleasant incident. The respondents clearly made out the defence of qualified Privilege.

It is true that the appellant pleaded malice. As stated earlier, in a defamation matter, where the words complained of are found to be defamatory and are shown to have been

published to a third party other than the complainant, malice is presumed. However, where a defence of qualified privilege is made out, the presumption of malice is rebutted. The plaintiff then has the onus of proving express malice against the defendants. See: Bakare Vs. Ibrahim (supra) at 153 lines 15 – 22. The appellant was unable to prove express malice in this case. While it was alleged that there was bad blood between the 2nd respondent and the Managing Director of the appellant because of a recommendation made to Dowell Schlumberger, a separate company from the 1st respondent, the appellant failed to lead any evidence to show that the said recommendation ever came to the notice of either of the respondents. Furthermore, as rightly pointed out by the lower Court, a close examination of Exhibit B shows that the complaints therein are against the Manager of Chilkied Security Services in his personal capacity. The said Managing Director, who testified as PW1 was never a party to the proceedings. In the circumstances, I hold that the lower Court was right when it held that the publication of Exhibit B to the Police could not found an action in libel.

The respondents had a duty to report the threat of violence to the police and the police had a corresponding duty to receive the complaint. The reciprocity of interest between the writer and the receiver was duly established. I also agree with the learned Justices that the words used in Exhibit B were not shown to be injurious to the appellant. I also hold that the lower Court properly considered the effect of malice on the defence of qualified privilege and rightly held that malice was not proved.

Issues 1 and 3 are accordingly resolved against the appellant.

Issue 2, which challenges the finding of the lower Court that the trial Court failed to consider the truth of the information contained in Exhibit B, has been addressed in the course of resolving Issues I and 2. I answered the issue in the affirmative. What was relevant was whether the threats mentioned in Exhibit B were actually made and not whether the threats were carried out. Issue 2 is accordingly resolved against the appellant. Having resolved Issues 1, 2 and 3 against the appellant, I do not deem it necessary to consider Issue 4.

The defence of qualified privilege having been properly made out by the respondents, the claim for damages and injunction could not succeed.

In conclusion, I hold that the appeal lack merit. It is hereby dismissed. The judgment of the Court of Appeal in Appeal No. CA/PH/101/2001 delivered on 13/4/2006, setting aside the judgment of the trial Court, is hereby affirmed. The respondents are entitled to costs, which I assess at N250,000 against the appellant.

CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading the draft of the leading judgement which my Lord, Kekere-Ekun, JSC, just delivered. I agree with His Lordship that this appeal, being unmeritorious, should be dismissed.

writers and jurists are ad idem that the province of the tort of defamation, either in its written genre [technically known as libel] or in its transient species [called slander], is the injury occasioned on another person’s reputation by either written or spoken words, P. Milmo and W Rogers (eds), Gatley on Libel and Slander (Ninth Edition) (London: Sweet and Maxwell, 1998) paragraph 1. 5; G.; G. Fawehinmi, Nigerian Law of Libel and the Press (Lagos: Nigerian Law Publications Ltd, nd) passim;

Kodilinye and O. Aluko, Nigerian Law of Torts (Ibadan: Spectrum Books Ltd. 2007) (Reprint) 136; Tolley v. Fry [1930] 1 KB 467, 479, approvingly, endorsed in Egbuna v. Amalgamated Press of Nigeria Ltd (1967) 1 All NLR 25, 29; Byrne v. Dean (1937) 1 KB 818.
True, indeed, the Law takes the view that nothing could be more intangible than a person’s reputation, dignity or feelings. In essence, the injury to these intangible attributes forms the essence of the tort of defamation, Offoboche v. Ogoja Local Government (2001) LPELR -2265 (SC) 28, or, more accurately, the law of libel and slander, A. Mullis, “The Law of Defamation,” in A. Grubb (ed), The Law of Tort (London: Butterworths, 2002) 1014, Paragraph 24. 1.
Like English Law, which gives effect to the Biblical ninth commandment that a man shall not speak evil, falsely of his neighbour [and supplies a temporal sanction], per Lord Diplock in Horrocks v. Lowe (1975) AC 135, 149, cited in A. Mullis, “The Law of Defamation” (supra), Nigerian Law does not brook the habit of people maligning or disparaging their neighbours before third parties, Sketch Publications Ltd v. Ajagbemokeferi [1989] 1 NSCC 346;

Ciroma v. Alli (1999) 2 NWLR (pt. 590) 317; Nsirim v. Nsirim (1990) 3 NWLR (Pt 138) 285, 297.
Such statements either tend (a) to lower the plaintiff 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, Sketch Publications Ltd v. Ajagbemokeferi (supra); Corabi v. Curtis Publications Co 441 pa. 432, 273 A 2d, 899, 904, cited, with approval, in Guardian Newspapers and Anor v. Ajeh (2011) LPELR – 1343 (SC) 42-43; C-A.
However, to constitute a cause of action, Dairo v. UBN Plc (2007) 7 SC (Pt. 11) 97, citing Ezomo v. Oyakhire [1985] 1 NWLR (pt. 2) 195); Egbue v. Araka (1988) 3 NWLR (pt 84) 598, they must be false and disparaging statements against a person to a third person, Sketch Publications Ltd v. Ajagbemokeferi (supra); Ciroma v. Alli (1999) 2 NWLR (pt. 590) 317; Nsirim v. Nsirim [1990] 3 NWLR (pt. 138) 285, 297; that is, the injury must be to the plaintiff’s reputation in the minds of right-thinking people, Edem v. Orpheo Nig, Ltd [2003] 13 NWLR (pt. 838) 537, 558;

Sketch Publications Ltd v. Ajagbemokeferi (supra); Gatley on Libel and Slander (supra).

The Nigerian jurisprudence on the constitutive ingredients which a plaintiff in an action for libel must prove now spans a wide compass. We can only scratch the periphery, Iloabachie v. Philips (2008) 8 WRN 79; [2005] All FWLR (pt. 272) 223; (2005) 5 SCNJ 84; [2005] 13 NWLR (pt. 943) 695; Din v. African Newspaper (Nig.) Ltd (1990) 3 NWLR (pt. 139) 392; Sketch Publishing Co. Ltd v. Ajagbemokeferi (supra); Ekanem-Ita v. Fetuga [1991] 7 NWLR (pt. 204) 449, Concord Press (Nig) Ltd v. Olutola [1999] 9 NWLR (pt. 620) 578; African Newspapers of Nigeria Ltd v. Coker (1973) 1 NMLR 386; Benue Printing and Publishing Corporation v. Gwagwada (1989) 4 NWLR (pt. 116) 439 etc.
In all, these authorities are unanimous that such a plaintiff can only be entitled to judgement if he proves that the defendant: (i) published a statement in a permanent form; (ii) that the statement referred to him; (iii) that the statement was defamatory of his person in the sense that -(a) it lowered him in the estimation of right-thinking members of the society or (b) it exposed him to hatred, ridicule

or contempt; or (c) it injured his reputation in his office, trade or profession; or (d) it injured his financial credit.
The cases are many. We shall only cite one or two of them here, Sketch Publishing Co Ltd v. Ajagbemokeferi (1989) LPELR -3207 (SC) 37, B-G; African Newspapers Ltd v. Ciroma [1996] 1 NWLR (pt. 423) 156; Ugo v. Okafor [1996] 3 NWLR (pt. 438) 542; Guardian Newspapers Ltd and Anor v. Ajeh (2011) LPELR -1343 (SC) 15, B-D; Iloabachie v. Iloabachie (2005) 13 NWLR (pt. 943) 695, 736.
Although, the “right-thinking person” standard has become a subject of scathing strictures, Markesinas and Deakin, Tort Law (1994); Professor Prosser, Prosser and Keaton on Torts (1984, 5th edition), cited in A. Mullis, (supra), Nigerian Courts still espouse that standard, Sketch Publishing Co. Ltd v. Ajagbemokeferi (supra); African Newspapers Ltd v. Ciroma (supra); Ugo v Okafor (supra); Guardian Newspapers Ltd and Anor v. Ajeh (supra); Iloabachie v. Iloabachie (supra).
Failure to establish any one of these ingredients is fatal to the plaintiff’s case, Okolo v. Midwest Newspapers Corp (1997) NSCC 11; Okafor v. Ikeanyi (1979) 1 NSCC 44;

Sketch Publishing Co. Ltd v. Ajagbemokeferi (supra); African Newspapers Ltd v. Ciroma [1996] 1 NWLR (pt. 423) 156; Ugo v. Okafor [1996] 3 NWLR (pt. 438) 542; Din v. African Newspapers of Nig Ltd (1990) 3 NWLR (pt. 139) 392; Nsirim v. Nsirim (1990) 3 NWLR (pt. 138) 295.

In the instant appeal, the respondents successfully made out their defence of fair comment or qualified privilege hence, rebutting the presumption of technical malice or malice in law. In the circumstance, the appellants were left with one option; they had the onus of proving express malice or malice in fact against the respondents. As this Court explained in S. B. Bakare v. Alhaji A. Ibrahim (1973) All NLR 653; (1973) 6 SC 147:
We think it is necessary to stress here that the word ‘maliciously,’ as usually pleaded in defamation actions, has a technical meaning. We think that in pleadings, sufficient care should be taken to draw a clear distinction between this ‘technical malice,’ if we may say so, and actual malice. In our view, each has a definite place in the pleadings, and each also has a distinct role to play at the trial. It should always be borne in mind that, once the plea of fair comment

or qualified privilege is made out, … the inference of malice is rebutted, and the burden is thrown upon the plaintiff of showing and proving ‘express malice’ against the defendants.
This is generally known as ‘malice in fact,’ and to be able to discharge this onus at the trial, it is important that the plaintiff should deliver a reply, alleging express malice and giving particulars of the facts from which such malice is to be inferred…
…. ‘technical malice’ otherwise known as malice in law is always presumed in the plaintiffs favour. While ‘express malice,’ otherwise known as malice in fact, is never presumed, it must be proved by evidence. In our view, therefore, it is equitable to expect that just as the defendants (as in this case) are required to give particulars of the facts on which the plea of fair comment is based, so also is the plaintiff (where he intends to defeat such defence of fair comment) obliged to deliver a reply alleging malice against the defendants, and setting out particulars of the facts from which actual malice may be inferred.
Per Ibekwe, Ag. JSC, approvingly, adopting the views of Vaughan Williams, L, J. in Dawson v. Dover and County Chronicle Limited (1913) 108 L.T. 481, 484.

and County Chronicle Limited (1913) 108 L.T. 481, 484.
The appellants failed to plead and prove actual malice or malice in fact. Against this background, therefore, this appeal must fail. Appeal is hereby dismissed.

EJEMBI EKO, J.S.C.: My learned brother, K. M. O. KEKERE-EKUN, JSC had availed me in advance the draft of the judgment just delivered. I hereby adopt it, as I agree entirely with the judgment.

Let me, however, add that no cause of action vested in the Appellant, as the plaintiff, providing him the locus standi to maintain this action in libel, in the first place. His action was for libel to protect, supposedly his reputation. The offensive letter is Exhibit B, which was loudly pleaded in paragraph 5 of the Amended statement of claim. In the said pleading the Appellant, as the plaintiff, averred that the Respondent, as defendants, “falsely and maliciously wrote and published or caused to be written and published – – – the letter – to the Commissioner of Police, Rivers State Command, of and concerning the plaintiff the following:

Our ref. No. 92/SCL/PM/II/087
02/03/92
The commissioner of Police
Rivers State Command,
Port Harcourt
Attn: O. O. Onege
Dear Sir,
SUBJECT: THREAT FROM THE MANAGER OF CHILKIED SECURITY SERVICES
I am bringing forward to your office and your direct notice various incidents which demand your immediate attention. Before the removal of Chilkied Security Services from the Schlumherger residential camp at Rumuoagba, the manager of Chilkied Services went to the residential camp supervised by Mr. GUY whom he (Manager of Chilkied) now told him to relay to me the following:
1. That himself (the Chilkied Service Manager) would organise for Messrs Guy, Letarte AND MAQUET to be shot.
2. Iterated that he had armed robbers on his monthly payroll and that he was well able to employ their services to do the above job.
3. The Manager of Chilkied Security Services further went ahead to inform one of the expatriates, Mr. J. Bedford, that he would set fire to hall the residential camp.
Notwithstanding the above threats, we have effected his removal. We wish to bring the above to your notice, sir, in order that you may assist in ensuring both the safety

of lives and property by taking whatever actions you deem fit, to avoid any unpleasant incident.
Yours faithfully,
SOHLUMBERGER (Nig) LTD
P. MAQUET
East Nigeria District Manager

No complaint in the letter, Exhibit B (above reproduced), was made against the Appellant, as the plaintiff, who sued as “CHILKIED SECURITY SERVICES AND DOG FARMS LIMITED”. At the hearing of the suit Pw.1, who testified for the plaintiff, described himself as the Manager of the Plaintiff. The Pw.1 testified as a natural person. The plaintiff/appellant is a juristic persona, or an artificial person, being an entity created by law and given certain legal rights and duties of a human being. Such an artificial entity or person is distinct from the human beings who are its promoters or officers. Both, though, can be defamed or libelled. An artificial person, as EDEM v. ORPHEO NIG LTD (2003) 13 NWLR (pt. 838) 537 at 558 demonstrates, can be “defamed in the estimation of right thinking members of the society generally-“. It can be libelled.
The cause of action vesting in either the natural person or the artificial person (the legal entity) cannot be lawfully subrogated by one for the other.

Thus, where the cause of action vests in the natural person, the human being; the artificial person, the corporate entity, cannot usurp it to maintain an action to lay claim to any legal remedy or reliefs. Similarly, the cause of action vesting in the corporate entity cannot be usurped by the natural person to predicate an action thereon for any relief or redress against another.
It is clear from Exhibit B, above reproduced, that the person who can in law, lay claim to the cause of action for libel, if any at all, is not the present Appellant but the person referred to as “the Manager of Chilkied security services” or “he (the Manager)” etc. The said manager unveiled himself as the Pw.1. He erected not to maintain any action, preferring only to play the role of a witness i.e. the Pw.1, for Appellant. No cause of action vested, lawfully, in the plaintiff on the record who clearly had usurped the right to the cause of action allegedly disclosed by Exhibit B from “the Manager of Chilkied security services” or “he (the Manager)”. As the evidence on the record shows the Pw.1 was, in actuality, the person the author of Exhibit B complained about to the

Commissioner of Police, I should think, jurisprudentially, no right exists in law for subrogation of causes of action or the right to any causes of action.
The cause of action, being an aggregate or a bundle of facts, which in law gives the plaintiff a substantive right to make the claim against the relief or remedy being sought against the defendant (KUSADA v. SOKOTO N. A. (1968) 1 ALL NLR 377; BELLO v. A.G., OYO STATE (1986) 5 NWLR (pt. 45) 828 at 876), is a determinant of the jurisdiction the trial Court has to entertain the particular civil cause or matter. The absence of the cause of action giving the plaintiff the right to maintain the action, consequently, robs the trial Court of its jurisdiction to entertain the action. The defect is fatal. It renders both the action and the Court incompetent: MADUKOLU v. NKEMDILIM (1962) ALL NLR 581; SOSSA v. FOKPO (2001) 1 NWLR (pt. 693) 16.
The suit was incompetent ab initio, the Appellant having no right in law, in the first place, to bring the action against the defendants on the record upon the cause of action, allegedly, disclosed by Exhibit B.

Accordingly, any discussion on the defence of qualified privilege availing the defendants against the Appellant, as the plaintiff, was a non-starter. And even if the cause of action vests in the Appellant, the defence still avails the author of Exhibit B.

This appeal is frivolous and vexatious. It has no iota of any meaningful substance. I also dismiss it in its entirety and abide by all orders as to costs made in the lead judgment.

PAUL ADAMU GALINJE, J.S.C.: I have had the privilege of reading in draft the judgment just delivered by my Learned brother, Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC and I entirely agree with the reasoning contained therein and the conclusion arrived thereat. The facts of the case have been elaborately set out in the lead judgment. The Appellant’s complaints are against the words contained in Exhibit B which it considered defamatory. Exhibit B contains words which could be defamatory of the Appellant, but the occasion of the publication is privileged, because the Respondent had a duty to communicate the information contained in Exhibit B to the police officers.

Relatively the police officers had a duty to receive and act on the information. I find defence of privileged communication sustainable in this case. Accordingly, this appeal is devoid of any merit. I therefore join my brother in dismissing same. I endorse all the consequential orders made in the lead judgment including order as to costs.

SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Kekere-Ekun, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. The appeal lacks merit and it is accordingly dismissed by me. I abide by all the orders contained in the lead judgment.

Appearances:

OSAHON IHENYEN, ESQ. For Appellant(s)

S.A. SOMIARI, ESQ. with him, I.L. OKOYE, ESQ. For Respondent(s)

Appearances

OSAHON IHENYEN, ESQ. For Appellant

AND

S.A. SOMIARI, ESQ. with him, I.L. OKOYE, ESQ. For Respondent