EDDY I. ONAH V SCHLUMBERGER (NIG) LTD & ANOR (2018)

EDDY I. ONAH V SCHLUMBERGER (NIG) LTD & ANOR

(2018) LCN/4599(SC)

In the Supreme Court of Nigeria

Thursday, May 31, 2018


Case Number: SC. 90/2007

 

JUSTICES:

JOHN INYANG OKORO

AMIRU SANUSI

OLABODE RHODES-VIVOUR

MARY UKAEGO PETER-ODILI

SIDI DAUDA BAGE

 

APPELLANTS

EDDY I. ONAH

RESPONDENTS

1. SCHLUMBERGER (NIG) LTD2. MR. PHILIP MAQUET

FAILURE TO FILE REPLY BRIEF
“When the respondent argues his Preliminary Objection in the respondents brief the appellant is expected to respond by filing a Reply brief. Where, as in this case the appellant fails to file a Reply brief the Preliminary Objection is deemed to have been conceded by the appellant. In such a case, the court should still examine the preliminary objection to ensure that it does not hear an incompetent or fundamentally defective appeal. See Nwankwo v Ecumenical Development Co. Society (2002) 1NWLR (Pt749) D.513.”
NATURE OF A PRELIMINARY OBJECTION
“Order 2 Rule 9 (i) of the Supreme Court Rules provides for the filing of Preliminary objection. In Isah vINEC & 2ors (2014) 1-2 SC (Pt.M D.101. I said that: A Preliminary Objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. The purpose of a preliminary objection is to convince the court that the appeal is fundamentally defective in which case the hearing of the appeal comes to an end if found to be correct. Where a preliminary objection would not be the appropriate process to object or show to the court defects in processes before it a motion on notice filed complaining about a few grounds or defects would suffice. See also Nwaolisah v Nmhufoh (2011) 8-7SC (Pt. ii) p.138. (Pt.iii) P.104; Wachukwu & anor v Owunwanne & anor (2011) 5SC (Pt. i) P.168.”
DIFFERENCE BETWEEN RATIO DESCIDENDI AND OBITER DICTUM
“There is a clear distinction between ratio decidendi and obiter dicta. The former has a binding effect in a judgment. It is authority for what the case decides or stands for. The ratio decidendi of the judgment of the Court of Appeal is that the defence of qualified privilege is established when the person who makes the publication has a moral duty to make it to the person to whom he makes it and the person who receives it has an interest in hearing it and since these twin conditions exist there was no malice and so qualified privilege availed the appellants/respondents. On the other hand obiter dicta are mere observations of the court and a court is entitled to make observations in the process of preparing its judgment. The issue of justification was not an issue formulated for determination by either party, and it was not one of the two issues considered by the Court of Appeal. In the process of considering the defence of qualified privilege the Court of Appeal explained the difference between it and the defence of justification. This was obiter dictum of the court.”
CAN AN APPEAL LIE AGAINST AN OBITER DICTUM
“Now, Grounds of Appeal must question the ratio decidendi and not the obiter dicta. That is to say an appeal does not lie against an obiter dictum. It lies against the ratio decidendi. The defence of justification was commented on by the Court of Appeal. The comments amounts to obiter dictum of the court and nothing more. Since it is well settled that grounds of appeal must relate to, and challenge the decision appealed against, while the issues must arise from the grounds.”
WHAT AMOUNTS TO AN INCOMPETENT GROUND OF APPEAL
“A ground of appeal would be incompetent if the adversary is left in doubt as to what the complaint of the appellant really is. See Aderounmu v Olowu 2000 SCNJ p. 180.
MEANING OF TORT OF DEFAMATION
“The tort of defamation is either libel or slander. The former is written while the latter is spoken. Libel or slander is thus written or spoken words that exposes a person to hatred, ridicule or contempt. That is to say to be shunned or avoided and to be lowered in the estimation of right thinking people in society. To disparage a person in his profession or trade. See Guardian Newspapers Ltd v Ajeh (2011) ALL FWLR (Pt.584) p.1.”
ESSENTIAL INGREDIENTS OF LIBEL
“The essential ingredients of libel are: 1. The words complained of must have been written; 2.The libelous matter must be published; 3.The words must refer to the plaintiff; 4.It must be the defendant who published the words; 5.The onus is on the plaintiff to prove that he was the one referred to in the alleged libel; 6.The publication must be false except when the defence of qualified privilege is relied on.”
WHAT IS “PUBLICATION” IN AN ACTION FOR LIBEL
“The writing of Libelous matter does not constitute publication. Once the libelous matter is made known (i.e. read) by someone other than the person of whom it is written (in this case the plaintiff/appellant) there is publication. That is to say that once libelous matter is written and delivered to anyone other than the plaintiff, publication is complete and an action for libel can be filed.”
DEFENSE OF QUALIFIED PRIVILEDGE

“The defence of qualified privilege is available when there is a common interest between the maker of a defamatory statement and the person to whom it is made. There must be reciprocity of interest. The maker of the defamatory statement must have an interest or duty, legal, social or moral to make it and the person to whom it was made must have a corresponding interest or duty to receive it.”

REQUIREMENTS ON RULE OF COURT ON PLEADINGS

“Rules of court on pleadings require a party to state concisely in numbered paragraphs the material facts of his case on which he relies but not the evidence with which those facts are to be proved.

 

 

 

DEFINITION OF RATIO DESCIDENDI

“Again in the case of Kupolati v Oke (2009) ALL FWLR (Pt.486) 1858 at 1873, ratio decidendi was defined as follows:- “Ratio Decidendi has been defined according to the Latin interpretation as the “reason for deciding”. It is also defined as- (1)The principle or rule of law on which a court’s decision is founded. (2)The rule of law on which the later court thinks that a previous court founded its decision: a general rule without which a case must have been decided otherwise often shortened to the ratio”.

 

 

GENERAL DUTIES OF THE POLICE

“Section 4 of the Police Act Cap.349, LFN 1990 states the general duties of the Police. For ease of reference, the section is hereby reproduced:- The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged and shall perform such military duties within or without Nigeria as may be required by them or under the authority of this or any other Act.”

(DELIVERED BY OLABODE RHODES-VIVOUR, JSC)
Proceedings leading on to this appeal were first instituted in a Port Harcourt High Court, River State of Nigeria. Osu J presided and in that court the plaintiff/appellant claimed as per paragraph 21 of his amended statement of claim:
(a)The sum of seven million naira being general damages for libel contained in the letter dated 2nd day of March, 1992 written and published or caused to be written and published by the defendants’ and concerning the plaintiff captioned THREATS FROM THE MANAGER OF CHILKED SECURITY SERVICES.
(b)An injunction restraining the defendants’, their servants and/or agents from writing and publishing or causing to be written and published any similar libel of and concerning the plaintiff.
The plaintiff is the Managing Director of Chilkied Security Services and Dog Farms Ltd, while the 2nd respondent is the head of Administration of the 1st respondent. The 1st respondent awarded a contract to the plaintiff. The plaintiff was to provide Security Services at the residential Camp, office, and Warehouse of the 1st appellant.
The plaintiff went to work, but after a while the contract was terminated. The 2nd respondent claimed that the termination of the contract did not go down well with the plaintiff. He claimed that he was threatened by the plaintiff in messages sent by the plaintiff to him (the 2nd respondent). The 2nd respondent wrote a letter exhibit C to the Commissioner of Police reporting the threats of the plaintiff and seeking Police protection. The plaintiff claimed that the contents of exhibit C. are defamatory of him. The defendants’ relied on the defence of justification and qualified privilege pleadings were filed and served. Trial was heard on the plaintiff’s amended statement of claim filed on 14 April, 1994 and the defendants’ second amended statement of defence filed on 10 July 1996. The plaintiff gave evidence and called two other witnesses. The defendants’ called two witnesses and a total of six documents were admitted as exhibits, A, B, C, D, E, and F.
In a considered judgment delivered on 28 November, 1997 the learned trial judge agreed with the plaintiff. His lordship found that the plea of qualified privilege cannot be sustained.
Awarded the sum of 2,500, 000.00 (Two million, five hundred thousand Naira) in favour of the plaintiff against the defendants’ jointly and severally, and made an order of injunction restraining the defendants’ their servants and/or agents from writing and publishing or causing to be written and published any similar libel of and concerning the plaintiff.

Dissatisfied with the judgment of the trial court, the defendants’ filed an appeal. It was heard by the Port Harcourt Division of the Court of Appeal. That court set aside the judgment of the trial court, and ordered that all monies paid in satisfaction of the judgment shall be refunded to the respondents (appellants’ in the Court of Appeal).
This appeal is against that judgment. Briefs were filed and exchanged. The appellant’s brief was filed on 24 March 2009 but deemed properly filed and served on 1 July 2009.
The respondents’ brief was filed on 4 July, 2011 but was deemed duly filed and served on7 June, 2017. Learned counsel for the appellant, Mr. O. Iheniyen formulated two issues for determination from two grounds of appeal:

1.Whether despite properly stating the effect of malice on the defence of qualified privilege the lower court properly considered same in this suit vis a vis the evidence before the court.
2.Whether after determining that a defence of justification would constitute an uphill task to establish and that the justification purportedly set up by the respondents’ was “feeble” and “half-heartedly pleaded”, the Court of Appeal was right to have held that the trial judge did not make a finding as to whether the respondents’ actually uttered the words or not. This issue is elicited from grounds 2 of the Notice and Grounds of Appeal.
Learned counsel for the respondents’ Mr. S.A. Somiari also formulated two issues for determination:
1. Whether the Court of Appeal properly considered the effect of malice on the defence of qualified privilege in line with the evidence before the court.

2. Whether the Court of Appeal was right to have held that the trial judge did not make a finding as to whether the respondents’ actually uttered the words or not when it had already stated that the defence of justification raised by the respondents’ as feeble and half-heartedly pleaded.
Learned counsel for the respondents gave notice of Preliminary Objection brought under Order 2 Rule 9(i) of the Supreme Court Rules. The Preliminary Objection was argued in the respondents’ brief. Arguing a Preliminary Objection in the respondents’ brief has been accepted practice for quite a long time. It obviates the need to file a separate Notice of Preliminary Objection. See Ajide v Kelani (1985) 3NWLR (Pt.12) p.240 Maigoro v Garba (1999) 10 NWLR (Pt. 624) p.570. When the respondent argues his Preliminary Objection in the respondents brief the appellant is expected to respond by filing a Reply brief. Where, as in this case the appellant fails to file a Reply brief the Preliminary Objection is deemed to have been conceded by the appellant. In such a case, the court should still examine the preliminary objection to ensure that it does not hear an incompetent or fundamentally defective appeal. See Nwankwo v Ecumenical Development Co. Society (2002) 1 NWLR (Pt. 749) p.513.
PRELIMINARY OBJECTION
Order 2 Rule 9 (i) of the Supreme Court Rules provides for the filing of Preliminary objection. In Isah v INEC & 3ors (2014) 1-2 SC (Pt. iv) p.101.
I said that:
“A Preliminary Objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. The purpose of a preliminary objection is to convince the court that the appeal is fundamentally defective in which case the hearing of the appeal comes to an end if found to be correct. Where a preliminary objection would not be the appropriate process to object or show to the court defects in processes before it a motion on notice filed complaining about a few grounds or defects would suffice.”
See also Nwaolisah v Nwabufoh (2011) 8-7 SC (Pt.ii) p.138. Dakolo & 2 ors v Dakolo & 3ors (2011) 6-7 SC (Pt.ii) p.104. Wachukwu & anor v Owunwanne & anor (2011) 5 SC (Pt.i) p.168
Learned counsel for the respondent filed this preliminary objection because according to him the two grounds of appeal are incompetent. If found to be correct there would be no grounds on which to formulate issues to hear the appeal. In the circumstances a preliminary objection was properly filed against the hearing of this appeal.
The complaint of the respondent reads:
1. That the grounds of appeal in the appellant’s notice of appeal dated and filed on 1 March, 2006 are incompetent.
2. That the appeal be dismissed for being incompetent.
The grounds of the said objection are:
(a)That ground 2 of the grounds of appeal does not arise from the judgment of the lower court.
(b)That ground 2 of the grounds of appeal arose out of an obiter dictum of the Court of Appeal.
(c)That the said ground 2 is not related in any way to the ratio decidendi of the judgment of the Court of Appeal and is thus incompetent.

(d)That the issues raised and argued on a sole ground of appeal (ground 1) in the appellant’s brief are incompetent.
(e)That as such, the grounds of appeal and the appeal itself are incompetent.
In his argument in support of his Preliminary objection learned counsel for the respondent, distilled two issues for determination. They are:
1.Whether ground 2 of the notice of appeal is in any way related to the ratio decidendi of the judgment of the Court of Appeal.
2.Whether the appellant can raise and argue two (2) issues on a single ground of appeal.
On issue 1 learned counsel for the respondent observed that in ground 2 the issue of justification was raised by the appellant. He argued that justification as raised by the appellant is an obiter dictum of the Court of Appeal, and it cannot form the ratio decidendi of a case. He submitted that a ground of appeal is on the ratio decidendi of a case and an issue can only be formulated from such a ground. Reference was made to Adelekan v Ecu-line N.Y. (2006) ALL F.W.L.R (pt.321) p.1213.
He observed that since issue 2 arose from the obiter dicta of the Court of Appeal, there is in law no ground 2, contending that issue 2 formulated from ground 2 is incompetent. Reliance was placed on Odife v Aniemeka (1992) 7 NWLR (Pt.251) p.25 Oikherhe v Iwanefero (1997) 7 NWLR (Pt. 512) p.226.
He urged the court to strike out ground 2 and issue 2 formulated from it.
On issue 2, learned counsel for the respondent observed that since ground 2 of the notice of appeal is incompetent this court cannot determine the appeal, further observing that since ground 1 of the notice of appeal is also incompetent a party cannot formulate two or more issues from a single ground of appeal. Reliance was placed on Bepco v Nasr Mgt Services Ltd (1993) 7 NWLR (Pt. 305) P.369.
He submitted that the issues raised by the appellant are incompetent. He urged the court to dismiss the appeal.
It is important at this stage that I reproduce the Notice of Appeal along with the issue formulated from it. I start with ground 2.
GROUND TWO
MISDIRECTION
The learned Justice of Court of Appeal misdirected itself when it properly agreed feeble and “half-hearted” and that the trial judge was right in rejecting same but went ahead to hold that “the learned trial judge did not make a finding as to whether the respondents’ actually uttered those words or not.”
PARTICULARS
(i)It is trite law that the defence of justification in an action for libel is an attempt to show the truth or falsity of communication or publication hence the Court of Appeal commended the trial judge for rejecting the defence of justification.
(ii)The Appeal Court fell into the same mistake when it stated that “No evidence was placed before the trial court to show that the respondent as plaintiff could not possibly have made those threats”………… The Court of Appeal also said that “……….. No investigation was conducted by the 2nd defendant……… to find out the truth of information …………”

These are apparent references to the need to prove the falsity or otherwise of the communication which the court earlier said the trial court was right in rejecting.
It is clear from the above that the complaint of the appellant is on the defence of justification.
Issues 2 formulated from ground 2 above reads:
“Whether after determining that a defence of justification would constitute an uphill task to establish and that the justification purportedly set up by the respondents’ was “feeble and half-heartedly pleaded”, the Court of Appeal was right to have held that the trial judge did not make a finding as to whether the respondents’ actually uttered the words or not.
There is a clear distinction between ratio decidendi and obiter dicta. The former has a binding effect in a judgment. It is authority for what the case decides or stands for. The ratio decidendi of the judgment of the Court of Appeal is that the defence of qualified privilege is established when the person who makes the publication has a moral duty to make it to the person to whom he makes it and the person who receives it has an interest in hearing it and since these twin conditions exist there was no malice and so qualified privilege availed the appellants/respondents. On the other hand obiter dicta are mere observations of the court and a court is entitled to make observations in the process of preparing its judgment. The issue of justification was not an issue formulated for determination by either party or it was not one of the two issues considered by the Court of Appeal. In the process of considering the defence of qualified privilege the Court of Appeal explained the difference between it and the defence of justification. This was obiter dictum of the court.
Now, Grounds of Appeal must question the ratio decidendi and not the obiter dicta. That is to say an appeal does not lie against an obiter dictum. It lies against the ratio decidendi. The defence of justification was commented on by the Court of Appeal. The comments amount to obiter dictum of the court and nothing more. Since it is well settled that grounds of appeal must relate to, and challenge the decision appealed against, while the issues must arise from the grounds. Grounds 2 which is on the obiter dicta of the court is incompetent. So also is issue 2 formulated from it? The end result is that ground 2 and issue 2 are incompetent and are hereby struck out.

The top court is a court of last resort. It is always competent to entertain a point of law raised for the first time before it, when the justice of the case so demands. The point must be a substantial point. However the top court may refuse to entertain a question of law if it is satisfied that the Court of Appeal would have been in a better position to deal with the matter. In this case the issue of defence of justification is important, but it was not raised by other party in the Court of Appeal or by the Court of Appeal. The party that relied on it, that is the respondents’ in this appeal succeeded in the Court of Appeal on the defence of qualified privilege. The defence of justification is not a substantial point worth considering by this court, since the party to rely on it never bothered to raise it in the Court of Appeal. There would thus be no need for this court to examine it. Once again Ground 2 and Issue 2 are struck out for being incompetent.
GROUND 1
The learned Justices of the Court of Appeal erred in law when despite properly stating the state of the law relating to qualified privilege they failed to apply the issue of malice pleaded in the amended statement of claim and upon which evidence was given by PW1.
PARTICULARS
i.The learned Justices of the Court of Appeal found that the words used in exhibit C are quite plain and ordinary in my humble opinion……….hence the judge found the terms of exhibit C as sufficiently plain and explicit and therefore require no further decoding” …….Exhibit C the letter sent to the Commissioner of Police Rivers State Command contained defamatory words.”
ii.Having come to the above conclusion the learned justices thereafter correctly too discussed the defence of qualified privilege pleaded by the respondent. In its reasoning the court said “while it is correct that malice destroys the defence of qualified privilege the said malice must be established and the burden of proof lies squarely on the plaintiff…………”
iii. The appellant had in his amended statement of claim at paragraph 20(e) (i) and (ii) at page 34 lines 5-26 of the record of appeal at the lower court stated the malice which actuated the writing of exhibit C. The respondents’ only response at paragraph 15 of their second further amended statement of defence is that the averments “are speculative and imaginary aimed at weeping up sentiment against the second defendant. The 2nd defendant had at no time commissioned and/or proposed to the plaintiff to make false allegation against any person.”
iv. At the hearing PW1 gave evidence of the malice and tendered exhibit E, see pages 42 lines 20-32 and page 43 lines 1 -10. The cross-examination of PW1 recorded at pages 47-48 of the record at the trial shows that no question was asked relating to the evidence of malice. In his defence DW1 only reference to malice was when he stated that “exhibit C which is a letter dated 2/3/92 was not made in malice as the informant i.e. Mr. Guy and J. Bedford did not deny that what they said to the 2nd defendant were not true.” Consequently and by rules of evidence the defendants/respondents are deemed to have abandoned their pleadings (if any) relating to malice as pleaded by the appellant.
v. The appellant had in his amended statement of claim stated that there were other security outfits operating within the Rumuogba Presidential Camp – a fact admitted by DW1 under cross-examination when he said “I know Mr. Lataitra very well He was a security consultant…………………………I know Karaka Security Company. This company provides security services at Rumuogba Camp at a given time. Chilkied Security Services and – Dog Farm Limited was providing security services at Rumuogba Camp at the same time …………. paragraph 6 suggested the removal of the services of the camp boss and resident camp supervisor …………. The camp boss is the same as the camp supervisor. He is one and the same person. Mr. Guy is the supervisor acting as the camp boss.” It is to be noted that the said Mr. Guy who claimed to have been told the threat leading to the writing of exhibit C is the same person who the appellant recommended to be removed from Rumuogba Camp. Despite the above the learned Justices of the Court of Appeal were unable “………… to see clearly any element of improper motive or malice …….”in the writing of exhibit C. This is so in-spite of the fact that at paragraph 2 of page 16 of the judgment of the Court of Appeal confirmed that the “relationship between the respondents and appellant had soured up so much.” The court failed to look up the reasons for the souring up as pleaded by the appellant and admitted by the respondents. The court ought to have realized that since appellant had recommended the removal of Mr. Guy the same had enough reason and motive for framing up the complaint that led to the writing of exhibit C.
vi. It is the law that in a case where the defence of qualified privilege may apply there can be no imputation of malice unless and until express malice is pleaded and proved and once so pleaded and proved the same destroys the defence of qualified privilege. In this case the express malice was pleaded and proved; the same was not challenged by the pleadings of the respondents. The respondents in their evidence failed, refused or neglected to give evidence in rebuttal of the express malice so pleaded and proved.
Learned counsel for the appellant claims that issue No1 was formulated from Ground 1 reproduced above. Issue 1 reads:
“Whether despite properly stating the effect of malice on the defence of qualified privilege the lower court properly considered same in this suit vis a vis the evidence before the court.

Learned counsel for the respondents’ submitted that ground 1 is incompetent, and that two issues cannot be formulated from a single ground of appeal.
A ground of appeal would be incompetent if the adversary is left in doubt as to what the complaint of the appellant really is. See Aderounmu v Olowu 2000 SCNJ p. 180.
After reading Ground 1 and the particulars, the ground and issue 1 formulated from it asks the question whether the Court of Appeal properly considered the defence of qualified privilege and the effect of malice on such a defence. This ground is against the ratio decidendi of the judgment of the Court of Appeal. I am in the circumstances satisfied that issue 1 was not formulated from ground 2 but from ground 1.
Ground 1 and Issue 1 are thus competent.
The Preliminary Objection succeeds in part. The appeal would be heard and determined on Ground 1 issue 1.
I have examined issue 1 and I am not satisfied with how it was framed. The grievance of the appellant is that the Court of Appeal was wrong to find that the defence of qualified privilege avails the respondents’. This calls for a thorough review of the reasoning of the Court of Appeal, and in that regard I am firmly of the view that the sole issue for determination is reframed to read:
“Whether the defence of qualified privilege avails the respondents’.
Learned counsel for the appellant submitted that the plea of qualified privilege as relied upon by the respondents’ is destroyed by malice as can be seen as aforestated by paragraphs 4 and 20 (a to e) of the amended statement of defence at pages 33 – 34 of the Record of Appeal. Further submitting that the particulars of malice are evidence from which to infer that the publication was actuated by malice. Reliance was placed on Emeagwara v Star Publishing Co. Ltd (2000) 10 NWLR (Pt.676) p.409. Esenowo v Ukong (1999) 6 NWLR (Pt.608) p.620. Concluding he submitted that the plea of qualified privilege relied upon by the respondents has been destroyed by malice. He urged this court to allow them appear and set aside the judgment of the Court of Appeal and affirm the judgment of the trial court. Responding, learned counsel for the respondents’ observed that the Court of Appeal properly considered the effect of malice on the defence of qualified privilege before setting aside the judgment of the trial judge. Reliance was placed on Kanu v Oparaocha (2006) ALL FWLR (Pt. 309) p.1499 Oyelola v Bannekan (2005) ALL FWLR (Pt.257) p.1586.
He urged this court to hold that the Court of Appeal was correct in its reasoning and conclusions.
The tort of defamation is either libel or slander. The former is written while the latter is spoken. Libel or slander is thus written or spoken words that expose a person to hatred, ridicule or contempt. That is to say to be shunned or avoided and to be lowered in the estimation of right thinking people in society. To disparage a person in his profession or trade. See Guardian Newspapers Ltd v Ajeh (2011) ALL FWLR (Pt.584) p.1
Exhibit C is what the appellant claims was defamatory of him, this appeal is on Libel.
The essential ingredients of libel are:
1. The words complained of must have been written;
2.The libellous matter must be published;
3.The words must refer to the plaintiff;
4.It must be the defendant who published the words;
5.The onus is on the plaintiff to prove that he was the one referred to in the alleged libel;
6.The publication must be false except when the defence of qualified privilege is relied on.
The publication of libellous matter gives the plaintiff the cause of action. This is well settled position of the law that libel is all about the estimation in which others hold the plaintiff and not what he thinks of himself.
Exhibit C is a letter written to the Rivers State Commissioner of Police. It is this letter that the appellant says is libellous. It reads:
The Commissioner of Police
Rivers State Police Command,
Port Harcourt.
Attn: Mr. O.O. Onogie
Dear Sir,
SUBJECT: THREATS 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 went to the residential camp supervisor Mr. Guy, whom he (Manager of Chilkied) now told to relay to me, the following:
1.That himself (the chilkied Services Manager) Would organize for Messrs GUY LETARTRE & MAGUET, to be shot.

2.He had armed robbers on his monthly payroll and 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 affected 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 (sic) as property by taking whatever actions you deem fit, to avoid any unpleasant incident.
Yours faithfully,
SCHLUMBERGER (NIG) LTD
P. MAGUET
East Nigeria District Manager.”
Was there publication of exhibit C?
The writing of libellous matter does not constitute publication. Once the libellous matter is made known (i.e. read) by someone other than the person of whom it is written (in this case the plaintiff/appellant) there is publication. That is to say that once libellous matter is written and delivered to anyone other than the plaintiff, publication is complete and an action for libel can be filed.
Both parties agree that there was publication. The respondents’ wrote exhibit C and sent it to the Commissioner of Police Rivers State. There was publication of exhibit C since the Commissioner of Police is a person other than the person of who exhibit C was written.
The words complained of were written (see exhibit C). The libellous matter was published.
This was done when the respondents’ sent it to the Commissioner of Police and the libellous matter referred to the appellant.

The respondents pleaded the defence of qualified privilege. A defence of qualified privilege would only be considered if it is robustly pleaded, so that the plaintiff has good notice of the defence. Simply pleading that the defendant relies on the defence of qualified privilege or that the publication of the defamatory statements was made on a privileged occasion would be inadequate.
The respondents’ as defendants robustly pleaded qualified privilege with detailed particulars in paragraph 8(a – k) of the second further amended statement of defence. I am satisfied that the defence of qualified privilege was properly pleaded. Why did the respondents’ write exhibit C to the Commissioner of Police?
After the respondents terminated the appellant’s security contract the appellant reacted angrily to the loss of job and sent threat messages to the respondents’. The respondents’ felt threatened and duly lodged a report to the Commissioner of Police (exhibit C) for protection.
The respondents’ maintain that they were merely reporting the appellant’s words and were relying on the defence of qualified privilege. The Court of Appeal agreed with the respondents’. After examining the defence of qualified privilege that court found that the defence of qualified privilege availed the respondents’ and that no effort was made to establish the malice of the 2nd respondent who wrote and published exhibit C.
The defence of qualified privilege is available when there is a common interest between the maker of a defamatory statement and the person to whom it is made. There must be reciprocity of interest. The maker of the defamatory statement must have an interest or duty, legal, social or moral to make it and the person to whom it was made must have a corresponding interest or duty to receive it. The court must consider the motive for the publication to be satisfied that the maker of the defamatory statement was not actuated by malice. The defence of qualified privilege collapses when malice is established, and the onus is on the plaintiff to satisfy the court that the publication was actuated by malice. The truth or falsity of the libellous matter is irrelevant when considering the defence of qualified privilege. See Emeagwara v Star Publishing & Publishing & Company Ltd & ors (2000) 5 SCNJ p.175 Offoboche v Ogoja Local Government & anor (2001) 7 SC (Pt.iii) p.107; Iloabachie v iloabachie (2005) 18 NWLR (Pt.950) p.510; Mamman v Salaudan (2005) 18 NWLR (pt.958) p.510; Esenowo v Ukong (1999) 6 NWLR (Pt.608) p.620
Applying the above to the facts of the case, exhibit C is the letter that the respondents’ wrote and sent to the Commissioner of Police, Rivers State.
No doubt, it contained defamatory words, but the Commissioner of Police is a public officer as provided by the Constitution with the responsibility for the maintenance of law and order. Exhibit C was addressed to the Commissioner of Police in his official capacity. The Commissioner of Police has a corresponding duty to receive a complaint from a person who is duty bound to report such a complaint. The essential requirement of reciprocity of interest is established.
Malice means a feeling of hatred. Can it be said that exhibit C was sent to the Commissioner of Police by the respondents’ because they hate the appellant. The onus is on the appellant, as the plaintiff to satisfy the court that exhibit C was actuated by malice.
On whether the appellant as plaintiff was able to satisfy the court that exhibit C was actuated by malice, the Court of Appeal said:
“………… The plaintiff rather concentrated on establishing defamation by publication actuated by malice. Where malice? No efforts were made to establish the malice of the 2nd appellant who wrote and published exhibit C to the Commissioner of Police ………………..The basis for the supposed malice was therefore not established before the court.”

In paragraph 5 – 12 on page 7 of the appellant’s brief he submitted that the particulars of malice are evidence from which to infer that the publication was actuated by malice.
Rules of court on pleadings require a party to state concisely in numbered paragraphs the material facts of his case on which he relies but not the evidence with which those facts are to be proved. Pleadings without evidence to support or sustain it are worthless. In view of the above the particulars of malice can never be evidence from which to infer that the publication was actuated by malice. Malice is proved only is evidence. The onus is on the appellant, as plaintiff to adduce credible and convincing evidence to show that exhibit C was actuated by malice. This, the appellant failed woefully to do. The Court of Appeal was correct that malice was not established.
Since the respondents’ had a moral duty to make a report of the threats to their safety to the Commissioner of Police and the Commissioner of Police as security officer of Rivers State had an interest in hearing it, Reciprocity of interest is clearly established and malice cannot even be imagined, the defence of qualified privilege avails the respondents.
Finally I must state that the defence of qualified privilege avails a defendant in an action for libel once there is corresponding interest and absence of malice and both are very present in this case. Accordingly this appeal is dismissed. The judgment of the Court of Appeal is hereby affirmed.
AMIRU SANUSI, JSC: I read before now, the Judgment just rendered by my learned brother Rhodes-Vivour, JSC. I am in entire agreement with his reasoning and conclusion that this appeal lacks substance and therefore it is accordingly dismissed by me

SIDI DAUDA BAGE, JSC: I have had the benefit of reading in draft the lead Judgment of my learned brother Olabode Rhodes-Vivour, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything to add. The appeal lacks merit, and it is accordingly dismissed by me.

JOHN INYANG OKORO, JSC: I read in advance the lead judgment of my learned brother, Olabode Rhodes-Vivour, JSC Just delivered. I agree that this appeal lacks merit and deserves an order of dismissal. I adopt both the reasons adduced and the conclusion that the defence of qualified privilege availed the Respondents as no iota of malice could be established in Exhibit C.
The Respondents, who believed that their lives were in danger, wrote to the Commissioner of Police making allegation against the Appellant. The onus was on the Appellant to show that the Respondents wrote exhibit C as a result of hatred and/or malice. This was not done; Accordingly, I agree that there is no merit in this appeal. It is hereby dismissed. I affirm the judgment of the Court of Appeal. I make no order as to costs.
Appeal Dismissed.

MARY UKAEGO PETER-ODILI, JSC: I am in total agreement with my learned brother, Oladode Rhodes-Vivour JSC in the judgment just delivered and in support with the reasoning’s from which the decision came about, and I shall make some comments.
This is an appeal by the appellant against the decision of the Court of Appeal, Port Harcourt Division wherein the judgment of T. K. Osu J of the High Court of Rivers State was set aside on the 5th day of December, 2005.
The full details of the facts leading to this appeal are well set out in the lead judgment and I shall not repeat them, save for when the occasion calls for the use of any part thereof.
On the 5th day of March, 2018 date of hearing, learned counsel for the appellant, Mr. Osahon Ihenyen adopted the brief of argument filed on 24th March,2009 and deemed filed on 1st July 2009.
1.Whether despite properly stating the effect of malice on the defence of qualified privilege the lower court properly considered same in this suit vis a vis the evidence before the court. This issue is elicited from ground 1 of the Notice and Grounds of Appeal.
2.Whether after determining that a defence of justification would constitute an uphill task to establish and that the justification purportedly set up by the respondents was “feeble” and “half-heartedly pleaded”, the Court of Appeal was right to have held that the trial judge did not make a finding as to whether the respondents actually uttered the words or not. This issue is elicited from ground 2 of the Notice and Grounds of Appeal.
Learned counsel for the respondent, S.A. Somiari adopted the brief of argument settled by A.J. Jambo Esq, filed on 4th July 2011 and deemed filed in 7th June,2017. In brief the respondent raised and argued a Notice of Preliminary Objection. In the event that the Preliminary Objection failed the respondent identified two issues for determination which are thus:-
1. Whether the Court of Appeal properly considered the effect of malice on the defence of qualified privilege in line with the evidence before the court.
2. Whether the Court of Appeal was right to have held that the trial judge did not make a finding as to whether the respondent uttered the words or not when it had already stated that the defence of the justification raised by the respondents as feeble and half-heartedly pleaded.
It needs no saying that preliminary Objection would be first dealt with before anything else as the competence of the appeal and jurisdiction of the court are in question.

NOTICE OF PRELIMINARY OBJECTION
TAKE NOTICE that the respondents herein named intend at the hearing of this appeal to rely upon the following preliminary objection notice whereof is hereby given to you viz:-
1.That the grounds of appeal in the appellant’s notice of appeal dated and filed on 1st March, 2006 are incompetent.
2.That the appeal be dismissed for being in competent.
3.For any other orders or further orders as the Honourable court may deem fit to make in the circumstances.
AND TAKE FURTHER NOTICE that the grounds of the said objection are as follows:
1.That ground 2 of the grounds of appeal does not arise from the judgment of the lower court.
2.That ground 2 of the grounds of Appeal arose out of an obiter dictum of the Court of Appeal.
3.That the said ground 2 is not related in any way to the ratio decidendi of the judgment of the court of appeal and is thus incompetent.
4.That the issues raised and argued on a sole ground of appeal (ground 1) in the appellant’s brief are incompetent.
5. That as such, the grounds of appeal and the appeal itself are incompetent.
ISSUES FOR DETERMINATION IN RESPECT OF PRELIMINARY OBJECTION
1.Whether ground 2 of the Notice of Appeal is in any way related to the ratio decidendi of the judgment of the Court of Appeal?
2.Whether the appellant can raise and argue two (2) issues on a single ground of appeal?
The appellant did not file a reply brief in answer to the Preliminary Objection with learned counsel for the appellant stating there was no need for such a response as the Preliminary Objection was not sustainable.
Arguing for the Objector learned counsel, Mr. Ihenyen stated that the ground 2 does not refer to the ratio decidendi of the judgment of the Court of Appeal but that the issue of jurisdiction as referred to by the Court of Appeal had to do with an obiter dictum which the court had a right to make but which cannot form a ground of appeal. He cited Ikyernwun v Lorkumbor (2002) 11 NWLR (PT.777) 52 AT 78-79.
That the reference of qualified privilege and jurisdiction that made the court to make the obiter dictum. That the major difference between the defence of qualified privilege and that of justification is that in the case of qualified privilege, once there is a corresponding interest and absence of malice, the case is proved. He referred to Ologe v Ukaeje (1998) 12 NWLR (Pt. 576) 23 at 26; Kupolati v Oke (2009) ALL FWLR (Pt. 486) 1858 at 1873; Adelekan v Ecu-Line N.Y. (2006) ALL FWLR (Pt. 321) 1213 at 1216-1217.
Learned counsel for the respondent/objector submitted that ground 1 of the Notice of Appeal is incompetent as a party cannot formulate two or more issues from a single ground as the appellant has done. He cited BEPCO v NASR MGT. Services Limited (1993) 7 NWLR (Pt. 305) 369 at 379; Chikweilo v Nwali (1998) 8 NWLR (Pt. 560) 114 at 121.

It is necessary to recast the Ground 2, basis of the first point of the Preliminary Objection wherein the objector contends should be struck out as not stemming from the ratio decidendi of the judgment of the court below but rather obiter dicta. It is thus along with the particulars:-
“GROUND 2”
MISDIRECTION
The learned justices of the Court of Appeal misdirected itself when it properly agreed that the defence of justification was “feeble” and “half hearted” and that the trial judge was right in rejecting same but went ahead to hold that “The learned trial judge did not make a finding as to whether there respondents actually uttered these words or not”
PARTICULARS
1. It is trite law that the defence of justification in an action for libel is an attempt to show the truth or falsity in communication or publication hence the Court of Appeal commended the trial judge for rejecting the defence of justification.
2. The Appeal Court fell into the same mistake when it stated that “no evidence was placed before the trial court to show that the respondent as plaintiff could not possibly have made these threats….” The Court of Appeal also said that “…No investigation was conducted by the 2nd Defendant… to find out the truth of the information”.
These are apparent references to the need to prove the falsity or otherwise of the communication which the court earlier said the trial court was right in rejecting.
What the respondent/objector has brought up is for the court to consider the distinction between the ratio decidendi of a judgment which would ground an appeal and the obiter dictum that does form the basis upon which a ground of appeal can stand. In case of the ratio decidendi, it has a building effect in a judgment while the latter are mere observations which the court is entitled to make as comments or remarks along the way to the decision and generally regarded as side comments on which an appeal cannot lie. However it is not easily defined and dispensed with once the comments come in as obiter dicta since the said remarks may be so intertwined with the substance or ratio decidendi that harm could be done to the appeal if the said comments are jettisoned without more. Therefore caution is the watch word so as not to throw away the baby with the bath water; I refer to the case of Ikemurn v Lorkumbor (2002) 11 NWLR (Pt.777) 52 at 78-79, a judgment of this court.
Again in the case of Kupolati v Oke (2009) ALL FWLR (Pt. 486) 1858 at 1873, ratio decidendi was defined as follows:-
“Ratio Decidendi has been defined according to the Latin interpretation as the “reason for deciding”. It is also defined as –
(1)The principle or rule of law on which a court’s decision is founded.
(2)The rule of law on which the later court thinks that a previous court founded its decision: a general rule without which a case must have been decided otherwise often shortened to the ratio”.

The way and manner the ascertainment of the ratio decidendi of a case is made is found in the same case of
Kupolati v Oke (Supra) at 1875 thus:-
“There are two steps involved in the ascertainment of the ratio decidendi. First, it is necessary to determine all the facts of the case as seen by the judge, it is necessary to discover which of these facts were treated as material to the judge”.
Having stated what a ratio decidendi is and what it is not, I shall quote excerpts of the judgment of the Court of Appeal, Thus:-
“It is a cardinal principle of the law on defamation that the truth or the falsity of the communication does not form part of the plea of qualified defence. Otherwise, observed Salami J.C.A., “there will be no distinction or difference between a plea of justification and that of qualified difference…”
(Refer FREDERICK O. OBASUYI v LUKE L. EZEIGHU (supra)
“What is required is that the statement is made at an opportune time (privileged) in terms of duty and responsibility. That was the circumstance of this case. I cannot see it in any other way. In the case of V. M. iloabachie ESQ V Benedict N. Iloabachie (2005) 13 NWLR (Pt. 943) p. 695 at 702, the Supreme Court expounded on what constitutes a defence of qualified privilege. The apex court held that qualified privilege is:
“…a defence to an untrue publication…”
When the occasion of the publication is shown to be privileged, the court held that an occasion:
“…is privileged when the person who makes the publication 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…”
Learned counsel for the objector contended that the issue of justification as raised by the appellant in his second ground of appeal is an obiter dictum of the Court of Appeal and being an Obiter cannot form the ratio decidendi of a case which is the only issue upon which a ground of appeal can be raised.
Bearing that submission in mind, one is conscious of the fact that grounds of appeal must relate to and challenge the validity of the decision appealed against while the issues for determination must arise from the grounds of appeal. Grounds of appeal must attack the ratio decidendi and not the obiter dicta of the decision but where there is an intermingling of the two situations the appellate court such as the apex court is enjoined to let matters be until the determination of the appeal as striking out what on the face of it has the appearance of obiter dicta could be an action taken prematurely with the possible consequence of determining in limine the appeal without either party firing a shot or defending and the justice of the matter lost. See Adelekan V Ecu-Line N.Y. 1213 at 1216-1217.
What I see in the attack by the Respondent/objector to ground 2 on its competence at this stage is a posture to have the appeal determined without a proper hearing and without the real issues in contention being well addressed by both parties especially the appellant whose interest would have been compromised or even annihilated without his being heard. It is on this note that I can see easily why the appellant did not bother with a reply to the Preliminary Objection as he knew as the court also knew objection is baseless and gone into recklessly the meat of the matter at this preliminary, immature stage, a situation for the proper hearing of the appeal, See section 36 of the 1999 Constitution of the Federal Republic of Nigeria.
Ground 2 being competent therefore and on its own can sustain the appeal; the matter of two issues distilled from the single ground one would not change anything if the said ground 1 is struck out being incompetent for being a sole ground on which two or more issues are distilled and there is nothing on which the grouse here can anchor. See BEPCO v NASR Mgt. Services Limited (1993) 7 NWLR (Pt. 305) 369 at 379. Chikweilo v Nwali (1998) 8 NWLR (Pt. 560) 114 at 121.
In the main this Preliminary Objection is dismissed as lacking in merit.
MAIN APPEAL
I shall for ease of reference use the issue as crafted by the appellant.
ISSUE NO 1
Whether despite properly stating the effect of malice on the defence of qualified privilege the lower court properly considered same in this suit vis-a-vis the evidence before the court.
Learned counsel for the appellant contended that the plea of qualified privilege as relied upon by the respondents has been destroyed by malice as can be seen and as stated in the Amended Statement of Defence paragraphs 4 and 20 ( a-e). That Exhibit C is vitriolic, malicious as it contains extraneous matters which impugn on the character of the appellant and consequently the plea of qualified privilege is immediately destroyed by the plea of malice and particulars thereof as pleaded and as shown in evidence by PW1 He cited Joseph A. Ojemme v Prince M.J, Momodu (1994) 1 NWLR (Pt. 330) 685 at 700-701; Mamman v Salaudeen (2005) 18 NWLR (Pt. 958) 478 at 510 etc.
That exhibit C could not have been written devoid of any influence from or by exhibit E as this is more so when the evidence by PW1 disclosed that DW2 is closely related to 2nd respondent who anchored exhibit C. That since the effect of malice was not applied by the Court of Appeal in this case there has been a miscarriage of justice and that the decision of the trial court should be restored. He cited Emeagwawa v Star Publishing Co Ltd (2000) 10 NWLR (Pt. 676) 489; Esenowo v Ukpong (1999) 6 NWLR (Pt. 608) 620.
In response, learned counsel for the respondents contended that the Court of Appeal properly considered the effect of malice on the defence of qualified privilege in line with the evidence before setting aside the judgment of the learned trial judge. That when the defendant had raised the issue of qualified privilege the onus is on the plaintiff to rebut the presumption. He cited iloabachie v Philips (2000) 14 NWLR (Pt. 686) 43 at 57.
That the respondents’ motive for writing exhibit C being honest and having a duty to send same to the Police and the Police have a corresponding duty to receive same makes the defence of qualified privilege raised by the respondent, a complete defence. He cited Kanu v Oparaocha (2006) ALL FWLR (Pt. 309) 1499 at 1501-1502.
For the respondent it was further submitted that the appellant failed to prove how the latter, Exhibit E would have got into 2nd respondent’s possession because the 2nd respondent is not an employee of Dowella Schlumberger who the appellant claims engaged his services.
Also that there was no credible evidence showing how the DW1 and DW2 got the information in Exhibit ‘E’ enough to bring up the issue of malice. He cited Adam v Ward (1917) AC 334; Maman v Salaudan (2005) 18 NWLR (Pt. 958) 510.
The crux of the judgment of the court below on the issue of malice and qualified privilege stated hereunder, viz:-
“In the case of Joseph A. Jeme v Prince Mark J. Momodu (1994) 1 NWLR (Pt. 330) 685 at 700-701, qualified privilege was defined as an occasion where the maker of a publication has an interest or a duty whether legal, social, and moral to make it to a person who has a corresponding interest or duty to receive it.”
The existences of such an interest or duty declare their lordship destroys the inference of malice, which the law makes and allows for the occasion.
The exception is where there is evidence of actual or express malice. See Obasuyi v Ezeighu (supra). The
learned trial judge held that there is no evidence by the defendant to show the corresponding interest that the Commissioner (sic) of Police had in the contract as the Commissioner of Police was in his way connected with the execution nor non-execution of the .. Contract…
What ‘contract’ one is to ask? Exhibit C made no reference to any contract. The contents of Exhibit C are clear and plain. The respondent is alleged to have held out threats for the information of the 2nd defendant. The 2nd defendant received the messages, took them seriously and reported to the Commissioner of Police”.
Section 4 of the Police Act Cap.349, LFN 1990 states the general duties of the Police. For ease of reference, the section is hereby reproduced:-
“The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged and shall perform such military duties within or without Nigeria as may be required by them or under the authority of this or any other Act”.
Section 5 sets out the constitution of the Police while section 6 provides as follows:
“The force shall be under the command of the Inspector-General and contingents of the force stationed in a state, subject to the authority of the Inspector-General, are under the command of the Commissioner of that state.”
“The Commissioner of Police by these provisions is the Chief Law Enforcement Officer of a State, charged with the maintenance of law and order. Threats, as reported in exhibit C are clearly matter that directly touch on his area of jurisdiction. One of the functions of Police is detection and prevention of crime. The Commissioner of Police is therefore an interested person who has the corresponding duty to protect the appellants, their employers and property and indeed the society at large”.
The learned authors of Gatley on libel and slander give the definition of qualified privilege 7th Edition paragraph 14 pages 186. Among eleven main classes of qualified privilege discussed by the authors, the 4th is found to be the most appropriate and it is to the effect that statements made by the defendant to obtain redress for a grievance, when made to a person whose power or duty is to grant such redress or to punish or reprimand the offender its privilege if made in good faith and not for the purpose of slandering the plaintiff.
The learned trial judge did not make a finding as to whether the respondent actually uttered these words or not. The evidence placed before the trial court was the testimonies of DW1 and DW2.
The witnesses were not effectively challenged; their testimonies were not demolished by cross-examination. No evidence was placed before the trial court to show that the respondent as plaintiff could not possibly have made these threats. Plaintiff rather concentrated on establishing defamation by publication actuated by malice. Whose malice? No efforts were made to establish the malice of the 2nd appellant who wrote and published Exhibit C to the Commissioner of Police.
Further, it was not established by credible evidence that the respondents’ report addressed to the 2nd appellant indicting the DW1 and DW2 were copied to the duo. The basis for the supposed malice was therefore not established before the court.
A reiteration of what the law has laid down is that proof of malice destroys the defence of qualified privilege and that proof of malice is not found in this case at hand and no evidence proffered in that regard nor did appellant lead evidence denying making the statements that led to Exhibit C being sent to the Commissioner of Police. The court cannot act on evidence of malice not pleaded in the appellant’s statement of claim which evidence would naturally go to no issue. In spite of that lacuna, the respondent had in defence pleaded qualified privilege, which is defined in case of Mammon v Salaudeen (2006) ALL FWLR (Pt. 298) 1169 at 1174 of this court to be thus:-
“Qualified Privilege or privileged occasion is an occasion when the person who makes a 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 it is so made has a corresponding interest or duty to receive it. This reciprocity is essential,”
Bearing the above principle in mind, in the case at hand, the 2nd respondent on behalf of 1st respondent wrote Exhibit C on an allegation of threat to life and damage to property to the Commissioner of Police. The 2nd respondent has an interest as the manager of the 1st respondent to make the report. Also to be noted is that he had the moral duty to report all such threats to the Police and the Commissioner of Police as the head of the Nigeria Police in Rivers State which primary duty is the maintenance of Law and Order and the investigation of complaints with the right to receive such complaints.
Also to be said is that when it comes to qualified privilege it does not matter whether the publication is true or false. In this regard I cite the case of Kanu v Oparaocha (2006) ALL FWLR (Pt.309) 1499 at 1501 -1502, where it was held thus:-
“The term qualified privilege defies direct definition. An action for a redress lie against a person who makes a malicious publication of words or statements that are false in fact and injurious to the character and reputation of another person to whom these words are directed. The law considers the publication of such false and injurious words or statements as malicious unless it can be established that the person who made the Communication of such words is a person who has an interest or a duty, be it legal, social or moral, to make it to the person to whom it is made and that person to whom it is so made has a corresponding duty or interest to receive it. In law, a communication bonafide, made upon any subject matter in which the party communicating has an interest is privilege and It is often said to have been made on a qualified privilege is said to avail a person who is sued as a defendant in such circumstances.”
What Exhibit ‘C’ reported was a claim by the PW1 to have armed robbers in his payroll and that he would burn down the respondent’s residential camp. That was the threat the 2 respondent reported.
The case of Kanu v Oparaocha (supra) at 1502 stated further thus:-
“The defence of qualified privilege if it is not characterized by gross and unreasonable prejudice is a complete defence. In effect, if the occasion for making the communication has reference to that occasion and publication or communication was from right and honest motives, a defence of qualified privilege will be on a terra firma.”
It follows that once the defendant/respondent had raised the issue of qualified privilege, the onus shifted to the plaintiff to rebut the presumption. In this I rely on lloabachie v Philips (2000) 14 NWLR (Pt.686) 43 at 57.
I agree with learned counsel for the respondent that appellant had failed to prove how the letter Exhibit E which he assented was written by him to Dowells Schlumberger and which he also claims is an entity, separate from the 1st respondent would have got into the 2nd respondent’s possession because the 2nd respondent is not an employee of Dowells Schlumberger who the appellant claims engaged his services. Again to be said is that there was no credible evidence showing how the DW1 and DW2 got the information to Exhibit ‘E’ enough to bring up the issue of malice.
To be noted is that the Police Act expressly provides the Nigeria Police the right to investigate issues of threat to life. The 2nd respondent who wrote Exhibit C was the District Manager of the 1st respondent and this clearly within the ambit of the fact that 2 respondent has a corresponding duty to report the threat to life and to receive the said communication. See Adam v Ward (1917) AC 334 per Lord Akinom cited with approval by Onnoghen JSC (as he then was) in Mamman v Salaudeen (2005) 8 NWLR (Pt. 985) 510.

This issue of corresponding interest or reciprocity in libel does not mean that there must be a special relationship between the defendant and the person to whom the communication was made rather it is that the interest has to exist. Taking this in context with the evidence on ground, it was established that 2nd respondent who wrote Exhibit ‘C is the head of administration of 1st respondent and wrote same to the commissioner of Police strictly for his attention. The said Exhibit ‘C was written under a sense of duty and without malice towards the appellant and in the honest belief that the facts stated therein are true.
Furthermore, the 2nd respondent, Mr. J. Bedford, DW1 and DW2 attended the interview at the Police Headquarters and each of them confirmed the allegations in their respective statement to the Police in the presence of the appellant. In their testimonies in court DW2 testified in line with the facts in the said Exhibit C and neither DW2 nor Mr. J. Bedford was charged for giving false information. It is therefore not surprising when the Court of Appeal held thus:-

The learned trial judge held that there is no evidence by the defendant to show the corresponding interest that the Commissioner (sic) of Police had in the contract as the Commissioner of Police was in his way connected with neither the execution nor non-execution of the …contract…
What ‘contract’ one is to ask? ‘Exhibit C’ made no reference to any contract. The content of Exhibit C is clear and plain. Respondent is alleged to have held out threats for the information of the 2nd defendant. The 2nd defendant received the messages, took them seriously and reported to the Commissioner of Police.”
This court had laid down what is regarded as twin conditions that are to exist for defence of qualified privilege to be sustained in the case of lloabachie v Philips (2005) 13 NWLR (Pt. 943) 695 at 702 where this court held that qualified privilege is a defence to an untrue publication and in the words of the court thus:-
“…is privileged when the person who makes the publication 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…

In the instant case, the twin conditions eminently co-exist and thereby render the imputation of malice totally impotent.”
The Court of Appeal applied this principle to the instant suit when at page 200 of the records it states thus:
“… The respondent is alleged to have held out threats for the information of 2nd defendant. The 2nd defendant received the messages, took them seriously and reported to the Commissioner of Police.”
Section 4 of the Police Act Cap 349, LFN 1990 states the general duties of the Police.
“… The Commissioner of Police, by these provisions is the chief law enforcement officer of a state, charged with the maintenance of Law and Order. Threats as reported in Exhibit C are clearly matters that directly touch on his are of Jurisdiction. One of the functions of the Police is the detection and prevention of crime. The Commissioner of Police is therefore clearly an interested person who has the corresponding duty to protect the appellants, their employees and property and indeed the society at large…”
In the instant case, the twin conditions eminently co-exist and thereby render the imputation of malice totally impotent.”
The Court of Appeal applied this principle to the instant suit when at page 200 of the records it states thus:
“… The respondent is alleged to have held out threats for the information of 2nd defendant. The 2nd defendant received the messages, took them seriously and reported to the Commissioner of Police.”
Section 4 of the Police Act Cap 349, LFN 1990 states the general duties of the Police.
“… The Commissioner of Police, by these provisions is the chief law enforcement officer of a state, charged with the maintenance of Law and Order. Threats as reported in Exhibit C are clearly matters that directly touch on his are of Jurisdiction. One of the functions of the Police is the detection and prevention of crime. The Commissioner of Police is therefore clearly an interested person who has the corresponding duty to protect the appellants, their employees and property and indeed the society at large…”
In the last paragraphs of page 202, the Court of Appeal held further that:-
“The 2nd appellant had the administrative responsibility to report to the police, not DW1 and DW2 and this he did. If the head of the administration of an organization does not report an alleged threat to the lives and properties under his care, who else will? If the said head of administration does not report such threats to the Commissioner of Police concerned, to whom should he report…?
What can be seen and quite clearly is the Court of Appeal’s review of the trial court’s evaluation of evidence before it and in doing so considered the issue of qualified as privilege posited by the respondent and came rightly to the conclusion as follows:-
“No evidence was placed before the trial court to show that the respondent as plaintiff could not possibly have made these threats. The plaintiff rather concentrated on establishing defamation by publication actuated by malice. Whose malice? No efforts were made to establish the malice of the 2nd appellant who wrote and published Exhibit C to the Commissioner of Police. Further, it was not established by credible evidence that the respondent’s report addressed to the 2nd appellant indicating the DW1 and DW2 were copied to the duo. The basis for the supposed malice was therefore not established before the court”.
The stance of the court below in overriding the decision of the court of first instance is without fault as the Court of Appeal duly applied the operative legal principles necessary to deal with the issues before it and which the trial court had a misdirection which led that court to come to wrong summation. This issue is resolved against the appellant.
ISSUE NO 2
Whether after determining that the defence of justification would constitute an uphill task to establish and that the justification purportedly set up by the respondents was “feeble” and “half-heartedly pleaded”, the Court of Appeal was right to have held that the trial judge did not make a finding as to whether the respondents actually uttered the words or not.
Learned counsel for the appellant contended that the respondents did not plead the two defences as an alternative which if driven would have mutually excluded the other. The onus of proving that the contents of Exhibit C emanated from the appellant was never discharged by the respondents. That the court should set aside the judgment of the lower court and affirm that of the trial court because it is not the place of the Court of Appeal to hold that the appellant may have uttered the offensive threats in exhibit C without thinking that DW2, who stood to benefit and indeed benefitted from the removal of the appellant from the contract was in a position to manufacture lies and falsehood against the appellant. That the court below seemed to have been in confusion as to what contract was in issue. He stated further that the court below entered the arena and presented a defence that the appellant said what is alleged against him. That the appellant in his evidence and by the evidence of PW3 had shown that he did not threaten the respondents and he was not challenged or contradicted under cross-examination and so this was another instance of speculation in the decision making of the Court of Appeal. He cited Archibong v State (2006) 14 NWLR (Pt. 1000) 349.
Responding, learned counsel for the respondent contended that the issue of justification as addressed by the court below was an obiter and not a ground of appeal or issue before the court and so cannot affect the reasoning of the court. He stated that the major difference between the defence of qualified privilege and that of justification is that in the case of justification there is the need to prove the truth of the statement that was made while in the case of qualified privilege, once there is a corresponding interest and absence of malice, the case is proved. He Cited Ologe v Ukaeje (1998) 12 NWLR (Pt.576) 23 at 26.
Learned counsel stated on for the respondent that the issue of justification was not a ground of appeal of the respondents at the court below even though respondents had pleaded the defence of justification at trial court and same decided that since it was not appealed on is deemed abandoned and cannot be now raised at the Supreme Court. That the Court of Appeal did not err when it set aside the judgment of the trial court because it did so in line with laid down principles as to when an appellate court will interfere with the judgment of a lower court and so the appeal should be dismissed.
The court below ought not to be crucified for holding that in determining that a defence of justification constitutes an uphill task to establish and that the defence of justification purportedly set up by the respondent was ‘feeble5 and ‘half-heartedly pleaded’. This is because in so holding there is no conflict with what the court had earlier concluded in relation to issue one that is, that qualified privilege was available to the respondent. I say so because in law qualified privilege is distinct as a defence to justification. In justification there is a need to prove the truth of the statement that was made while in the case of qualified privilege, once there is that corresponding interest and absence of malice the defence is proved. The struggle to show what I am trying to impart has been well captured in the case of Ologe v Ukaeje (1998) 12 NWLR (Pt. 576) 23 at 26 thus:-
“A plea of justification means that all the words alleged to be defamatory are true and covers not only the bare statements of fact in the alleged libel but also any imputations which the words in their context may be taken to convey… where a defendant pleads justification, the burden lies on him to prove the truth of the words in their natural and ordinary meaning”.
That definition in Ologe’s case well represents my humble view even though in a way the matter of justification cannot be over flogged here being an issue firstly pleaded by respondent at the trial court and decided upon and was not a ground of appeal in the Court of Appeal and so cannot be considered herein at this appeal since it is not founded upon any ground of appeal and the appellant had not cross appealed at the lower court. It is a matter abandoned and cannot be a source of headache at this point. This issue is resolved against the appellant being a non-issue.
Finally along the better reasoning in the leading judgment and the foregoing, I too see no merit in this appeal which I dismiss.
I abide by the consequential orders made.

COUNSELS

Osahon Ihenyen for the Appellant|S.A. Somiari Esq for Respondent and with him is I.L. Okoye Esq.|

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