EMEKA IZEJIOBI v. EVARISTUS O. EBGEBU (2016)

EMEKA IZEJIOBI v. EVARISTUS O. EBGEBU

(2016)LCN/8529(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of April, 2016

CA/OW/132/2014

RATIO

PROCEDURE: AT WHAT STAGE OF PROCEEDINGS CAN PLEADINGS BE AMENDED
One of the general principles in matters of this nature is that pleadings may be amended at any stage of the proceedings before judgment so long as such amendment does not alter the character of the case. See the cases of OSINUPEBI v. SAIBU (1982) 7 SC. 104; SHELL BP v. JAMAAL ENGINEERING (1974) 4 SC. 33 and OGUNTIMEHIN v. GUBERE (1964) 1-2 NLR 176. PER FREDERICK OZIAKPONO OHO, J.C.A.
PROCEDURE: FACTORS CONSIDERED BY COURT BEFORE GRANTING AN APPLICATION FOR AMENDMENT OF PLEADINGS
I also need to state that an amendment will also be allowed by Court when it is intended to do substantial justice to the parties to the action before Court. However, an amendment will not be allowed where it is to create a cause of action where none existed. For this, see the old case of OLOTO v. A. G. (1972) F.S.C. 74. It is also trite that an amendment will be granted even at a later stage in the proceedings, if such does not take the other party by surprise or intended to overreach the case of the other party. See OGUNTIMEHIN v. GUBERE (supra). Usually in the exercise of the Courts discretion on whether to grant an application for an amendment or not, the Court must consider the following three (3) factors, namely:-
“1. The materiality or the necessity of the amendment being sought.
2. The rules of audi alteram partem.
3. The genuineness of the amendment sought.”
See NURU v. KORE (1997) 6 NWLR (pt. 509) 496 at 505 Paragraphs E-F. See also ABOJOJOYE v. UBA (1986) 2 NWLR (pt. 20) 101 at 109, where this Court per WALI, JCA (as he then was) observed as follows;
In considering whether or not to grant amendment to pleadings, the Court must always be guided by the materiality of the amendment sought, the rules of audi alteram partem and the genuineness of the amendment. But the Court will not grant an amendment which would cause injustice to the other party- TAIWO ODUWAIYE v. ONA OKESANYA (1968) NWLR 430: DOMINION FLOUR MILLS LTD v. ABIMBOLA GEORGE (1963) 1 ALL NLR 71 PER FREDERICK OZIAKPONO OHO, J.C.A.
WORDS AND PHRASES: MEANING OF OVERREACHING
In the case of NATIONAL INLAND WATERWAYS AUTHORITY v. SPDC NIGERIA LTD (2008) LPELR-1963 SC, the Supreme Court per TOBI, JSC defined ‘overreaching’ in the following words;
“Overreaching means to circumvent outwit or get the better of something by cunning or artifice. It also means to defeat ones object by going too far. It connotes smartness on the part of a party in the litigation to defeat his opponent by a thoroughly organized plan to frustrate the intention and intendment of the adverse party. An overreaching conduct is an inequitable conduct because it is not fair and just.” PER FREDERICK OZIAKPONO OHO, J.C.A.
COURT: DUTY OF COURT NOT TO ALLOW AMENDMENT WHERE IT IS SHOWN THAT IT WILL PREJUDICE THE ADVERSE PARTY
The settled position of the law is that the Court would not allow an amendment if it is shown that the adverse party would be prejudiced by the amendment. It would be disallowed where the award of damages would not be enough to assuage for the inconveniences caused the adverse party. An amendment would also be refused where the application is brought mala fide due to reason of the introduction of an issue which was nonexistent and now tends to project the case of one party at the expense of the other. By allowing the amendment there was brought to bear in the case, an issue of extreme importance which succeeded in changing the character, complexion and coloration of the case originally brought by Claimant to the Lower Court for adjudication. The application therefore, ought to have been struck out by the Lower Court. PER FREDERICK OZIAKPONO OHO, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

EMEKA IZEJIOBI Appellant(s)

AND

EVARISTUS O. EBGEBU Respondent(s)

FREDERICK OZIAKPONO?OHO, J.C.A. (Delivering the Leading Judgment): The source of the dispute between the parties to this Appeal is a letter written by a member of a caretaker committee of a town progressive Union, resigning his position as member. In the letter dated the 15th day of December, 1998 and addressed to His Royal Highness, the EZE URUALLA, EZE EDDY OKOSISI EZEANYIKA XI he had expressed his disappointment in the activities of the caretaker committee and had said so in the following language at paragraph two (2);
?The leadership is full of disorder, it is very weak, crooked, Deceitful and selfish. There is no sincerity of purpose in all our deliberations. I am highly demoralized and disappointed.?

As a result of this letter, the Respondent as Claimant, that is the said EVARISTUS O. EGBEBU instituted on the 28-1-2002 an action against the Defendant, EMEKA IZEJIOBI claiming the sum of Five Million (N5) Naira as damages for libel among other reliefs. In the Statement of Claim, the Respondent as Claimant sought for:
?A Declaration of the Court that the publication in the letter dated 15-12-98 by the Defendant

against the Plaintiff is malicious, libelous and in absolute bad faith?

In Paragraphs 4, 5, 6 and 8 of his Statement of Claim, the Respondent pleaded as follows:
?4. The Defendant who has an overzealous ambition confiscated invitation letters meant for Aba Branch of the Union of which he belongs. He claimed handing over the invitation letters to the Secretary of the Committee who is also of Aba Branch. An enquiry by a member of the Union from Aba Branch proved the Defendant?s claim as false and blamed him for his callousness in deliberately seizing the invitation letters. The invitation letters were issued by the Plaintiff on behalf of the Union.
5. The Plaintiff wrote the Chairman of Aba Branch of our Union to verify the circumstances of the absence of his members at the said meeting which invitation letters were confiscated by the Defendant. Plaintiff shall rely on the said letters at this trial.
6. For fear of the outcome of the probe, the Defendant wrote and circulated a letter to all branches and members of the Union in Nigeria and in diaspora. In the said letter dated 15-12-98, the Defendant resigned his appointment

as a member of the Care Taker Committee and wrote of the Plaintiff as follows:
?THE LEARDERSHIP IN FULL DISORDER, IT IS VERY WEAK, CROOKED, DECEITFUL AND SELFFISH. THERE IS NO SINCERITY OF PURPOSE IN ALL OUR DELIBERATIONS I AM HIGHLY DEMORALIZED AND DISAPPOINTED.? These words of the Defendant were understood by all those who read the letter to mean that the Plaintiff is unreliable, dishonest, fraudulent, not straight in his dealings, insincere, self centered, deceitful, untrustworthy, questionable and dubious. The letter although circulated all over the country and abroad was not copied to the Plaintiff or other members of the committee. Plaintiff shall rely on the said letter at this hearing.
8. Many of the recipients of the said letter believed its contents as there was no response from the Plaintiff. Plaintiff?s professional colleagues, clients, friends and contemporaries who read the letter intimated the Plaintiff of its contents. Plaintiff then sought and obtained a copy of the letter and was shocked at the extent of damage to his person and reputation.?
?
Pleadings were ordered, filed and exchanged. The

Respondent?s witnesses testified asserting malice and absolutely bad faith against the Appellant. Respondent did not file a reply to qualified privileged pleaded by the Defendant now Appellant. Respondent however pleaded malice and absolute bad faith in his statement of claim. On the closure of their respective cases before Court, Appellant?s written final address emphasized on the failure of the Respondent as Claimant to have filed a reply to the Appellant?s Statement of Defense, obviously making a rather belated reply to the Appellant?s defense of qualified privilege.
?
To do this, the Respondent at pages 86 ? 88 of the Records of Appeal filed a motion for extension of time to file a reply, amending Respondent?s pleading by filing a reply and deeming the reply already filed and served as proper. The motion was contested as shown in pages 99 ? 104 of the Records and in a well considered ruling delivered on 6-3-2009 at page 115 of the records, the Lower Court granted the prayers sought in the said motion. Thereafter the Court adjourned to 18th March, 2009 to enable the parties amend written final addresses before

adoption if they deemed it necessary in the circumstance.

On 18th March, 2009 at page 144 of the records the matter was formally adjourned to 27th March, 2009 for adoption of the Written Final Addresses of the parties. The Written Addresses of both parties are at pages 79-83 for the Appellant and 89-95 for the Respondent. On 20th May, 2009, the Lower Court delivered a well considered judgment at pages 105-111 of the records in favour of the Claimant now Respondent. The Court below found the publication defamatory in the following terms:
?I hereby declare that the publication in the letter dated 15th December, 1998 by the Defendant against the Plaintiff is malicious, libelous and in absolute bad faith. The Defendant is hereby ordered to pay the Plaintiff Evaristus D. Egbebu the sum of N2,000,000.00 (Two Million Naira) as damages for libel. The Defendant shall pay cost to the Plaintiff which I assess and fix at N8,000.00 (Eight Thousand Naira)?.

Dissatisfied with the said judgment the Appellant has appealed to this Court vide it Notice of Appeal dated the 21-5-2009 but filed the 27-5-2009. There are five (5) Grounds of Appeal filed

which are reproduced here without their Particulars as follows;
GROUNDS OF APPEAL;
1. The learned trial Judge erred in law when she held that the plaintiff was defamed by the publication in Exhibit D.
2. The learned trial judge erred in law when she held that the defense of qualified privilege did not avail the defendant and thereby occasioned a miscarriage of justice.
3. The Hon. Court erred in law when in its ruling of the 6th March 2009, it granted the Plaintiff leave to amend the Statement of Claim by filing a reply to the Statement of Defense and deeming same as properly filed and served.
4. The Lower Court erred in law when it admitted in evidence photocopy of letter dated 15th December, 1998 addressed to Traditional Ruler of the EZE URUALLA as Exhibit D, without proper foundation.
5. The Hon. Court erred in law when it relied on the belated reply to Statement of Defense to hold that the Plaintiff has proved malice on the side of the Defendant thereby occasioning miscarriage of Justice

A total of four (4) issues were nominated for determination by the Appellant;
“1. Whether the Paragraph in the letter of

resignation refers to the Claimant alone as a person or to the Caretaker Committee members as a group and did the said letter libel the Claimant.
2. If the answer in Paragraph two is in the affirmative does the defense of qualified privilege not avail the Defendant?
3. Whether the Lower Court was right to grant the Claimant/Appellant leave to amend his pleadings and file reply after the Defendant Counsel has files and served the Claimant his Written Address where he raised the issue of failure of Claimant to file reply.
4. Whether the Lower Court was right to admit the Photocopy of letter dated 15th December, 1998 addressed to the Traditional Ruler and the Eze Urualla as Exhibit D without proper foundation.”

On the part of the Respondent, a total of four issues were also nominated for the Court?s determination as follows;
“1. From the evidence before the Court below whether the letter dated 15-12-98 written by the Appellant marked Exhibit D in the Lower Court is defamatory of the Respondent?
2. Whether the defense or qualified privilege avails the Appellant in this matter.
3. Having pleaded malice and absolute bad faith

ab-initio whether the leave granted by the Lower Court to the Respondent to amend his pleadings by filing a REPLY to the Statement of defense to include the particulars of malice and absolute bad faith is sustainable?
4. Whether the Lower Court?s admission of the document dated 15-12-98 titled letter of resignation as an Exhibit and marking same Exhibit D is lawful.”

Learned Respondent?s Counsel also filed a Notice of Preliminary Objection on the 10-3-2015 in which learned Respondent?s Counsel urged the Court to strike out the Appeal for reason of its being incompetent. The Grounds of the Objection were as follows;
”1. Appellant?s brief of argument failed to comply with the mandatory provision in ORDER 18 Rule 3 (4) of the Rules of this Court.
2. There is a proliferation of issues in Appellant?s brief of argument making his argument on issues 1 and 2 incompetent.
3. The Hon. Court cannot entertain a fundamentally defective and incompetent process.”

Respondent?s preliminary Objection was argued at Paragraphs 1.01 to 1.04 of the Respondent?s brief of argument. In response and in opposition to

the grant of the Objection, learned Appellant?s Counsel filed a Reply Brief on the 18-3-2015. As the practice of this Court, there will first be the need to dispose of the Notice of Preliminary Objection before delving into the resolution of the substantive Appeal.

NOTICE OF PRELIMINARY OBJECTION;
It is contended by learned Respondent?s Counsel that the Appellant did not comply with Order 18 Rule 3 (4) of the Rules of this Court. Counsel argued that the word; SHALL in legal parlance connotes a directive which is mandatory and does not permit of any discretion. Counsel cited a few decided authorities on this issue and further contended that Rules of Court must be obeyed by parties. Counsel submitted that the failure on the part of the Appellant to comply with Order 18 Rule 3 (4) of the Rules of Court makes the Appellants Brief of Argument incompetent and therefore liable to be struck out. His grouse was that Appellant did not include a numbered summary of the points to be raised and the reasons upon which his arguments are founded in his brief of argument. Counsel said that the Appellant?s brief shows that ?issue number one

flows from ground one and two of the Amended Notice of Appeal filed on 21-11-2014. Counsel cited the case of DARE v. GUSAU (2013) ALL FWLR (PT. 690) 1440 AT 1448 in support of his contention and urged the Court to strike out issues one and two as formulated by Counsel.

In his response, learned Appellant?s Counsel conceded that the Appellant?s brief was indeed not concluded with a numbered summary of the points raised but quickly submitted that the effect it created was that it made the brief inelegant and no more and that the Respondent did not say that he was misled in any way by this failure. Counsel charged that the Supreme Court has on several occasions stated that the Court may waive non-compliance by Counsel with procedural rules guiding brief writing where the other side was not misled. Counsel cited in this connection to the cases of SURAKATU v. NIG. HOUSING DEV. SOCIETY LTD. (1981) 1 ALL NLR (PT. 2) 230; EMORDI v. KWENTO (1996) 2 NWLR (PT. 433) 656 AT 666. Learned Counsel further disagreed with the Respondent?s assertion that there was a multiplicity of issues as he said that the Appellant settled four issues from the

grounds of Appeal, each of which dealt with specific points raised in the ground of Appeal. Counsel finally urged the Court to dismiss the preliminary objection and hear the Appeal on its merit.

Order 18 Rule 3 (4) of the Rules of the Court of Appeal, 2011 simply provides as follows;
?All briefs shall be concluded with a numbered summary of the points to be raised and the reasons upon which the argument is founded.?
The purpose of Order 18 of the Rules of this Court as a whole is to provide some form of guidelines for the format, the contents, preparation and general presentation that a brief of argument to be used in the prosecution of a given Appeal shall take. The fact that the provision is a Rule of Court means that it ought to be obeyed as it is with every other Rule of Court. The effect, however, where there appears not to be a strict compliance with the Rule shall only result in the presentation of a bad brief and no more. In the case of OBIORA v. OSELE (1989) NWLR (PT. 97) 279 the Supreme Court, per OPUTA, JSC had this to say about the presentation of bad briefs.
?A bad, faulty and or/inelegant brief will surely

attract some adverse comments from the Courts but it will be stretching the matter too far to regard such defective Brief as no Brief. A faulty Brief is a Brief which is faulty. One cannot close ones eyes to the fact of its existence.?
In the case of NATIONAL INLAND WATERWAYS AUTHORITY v. SHELL PETROLEUM DEVELOPMENT CO. LTD (2008) 13 NWLR (PT. 1103) 48 what the Supreme Court per TOBI, JSC said on the issue was not different when he said;
?A defective, faulty and inelegant brief will certainly attract the attention and comment of an Appellate Court, but beyond that, nothing should happen, unless the defect, fault or inelegance of the Brief affects the merits of the Appeal.?

I have carefully examined the Brief of argument of the Appellant in this Appeal and do not see how the failure to comply with Order 18 Rule 3 (4) of the Rules of this Court has affected the merits of this Appeal. Notice of Preliminary Objection hereby fails and it is accordingly dismissed.
?
Having therefore ruled thus, in favour of the dismissing the preliminary Objection, the Court shall therefore decide this Appeal on the basis of the issues nominated

by the Appellant for the determination of this Appeal. The reason for the decision is not farfetched. The issues identified by the both sides are the same except on grounds of semantics.

ARGUMENTS OF LEARNED APPELLANT?S COUNSEL;
ISSUE ONE;
Whether the Paragraph in the letter of resignation refers to the Claimant alone as a person or to the Caretaker Committee members as a group and did the said letter libel the Claimant.

The crux of the matter Counsel argued is whether the second Paragraph in the letter dated 15 December, 1998 refers to the Claimant and if at all, whether the Paragraph defamed the Claimant. Counsel answered in the negative as he argued that the paragraph does not refer to the person of the Claimant. He further argued that if the Appellant had intended to make reference to the Claimant, he would have made reference to the Claimant by stating his name or his office as Chairman or President. Counsel argued that rather the paragraph refers to the group, the Caretaker Committee and not to one person. For clarity, learned Counsel reproduced the said paragraph and underlined sections of it for purposes of emphasis as

follows;
?The leadership is full of disorder?, it is very weak, crooked, Deceitful and selfish. There is no sincerity of purpose in all our deliberations. I am highly demoralized and disappointed.?

He urged the Court to take a close look at the following sentences contained in the said Paragraph, thus;
1) ?The Leadership full of disorder?
2) ?There is no sincerity of purpose in all our deliberations.?

He further argued that the above two sentences show clearly that the reference in the above Paragraph is to the Caretaker Committee and not to the Claimant personally. Counsel urged the Court to agree with Appellant that this Paragraph does not refer to the Claimant/Appellant personally. Counsel cited the decision of Court in DALUMO v. SKETEH PUBLISHING (1972) ALL NLR 567 AT 571-572; where the Supreme Court per FATAI WILLIAMS, JSC said;
?I refer to the case of KNUPFFER v. LONDON EXPRESS NEWSPAPER LTD (1994) ALL ERP 496, where Viscount Simon L. C. stated; ?if a man wrote that all lawyers were thieves no particular lawyer could sue him unless there is something to point to the

particular individual. Where the Claimant is not named, the test which decides whether the words used refer to him is the question whether the words are such as would reasonably lead persons acquainted with the Claimant to believe that he was the person referred to. ”
See Laws of Nigeria by SASEGBON Vol. 16 page 195 Paragraph 418.
It was further argued by learned Counsel that if the Court will agree that when the Defendant said that; ?there is no sincerity of purpose in our deliberations?, that he, Defendant was referring to the Committee including himself, then that the Paragraph is not defamatory. Counsel said that the Defendant merely expressed his opinion about what is happening in the Caretaker Committee. In this connection, Counsel urged the Court to hold that the Paragraph in question is not defamatory.

In an alternative argument Counsel submitted that in law the alleged offending paragraph, if it did not refer to the Respondent cannot be said to have libeled him as he cannot be libeled by the Paragraph of the letter of resignation which did not specifically refer to him in person. Counsel said that if the Court agrees with the

Appellant that the Paragraph in contention does not refer to the Respondent in person, but to the Caretaker Committee to which the Appellant also belongs, then it cannot be said that the paragraph libeled the Respondent. Counsel also argued that the law on the issue is that where defamatory words are written of a whole class of persons (e.g. that; ?all lawyers are thieves?) no individual member of that class can sue for libel unless the class is so small or ascertainable that what it said of the class is necessarily said of each and every member of it. Counsel cited the case of ZIK ENTERPRISES LTD v. AWOLOWO (1995) 14 WACA 696 where the Court held that reference to Action Group cannot be taken as reference to the Claimant. Counsel urged the Court to hold that the said Paragraph in question did not libel the Claimant/Respondent.

ISSUE TWO;
If the answer in Paragraph two is in the affirmative does the defense of qualified privilege not avail the Defendant?

It was the contention of learned Appellant?s Counsel that the defense of qualified privilege inures in favour of the Appellant. Counsel said that in the evidence in Chief of

the Appellant on the 14-10-2006, the Appellant as Defendant said that; ?I addressed the said letter to the Traditional Ruler because I saw the Traditional Ruler as the right (sic) person being the custodian of the Town. The Traditional Ruler as the custodian of the Town has special interest in the way the Caretaker Committee is run. I copied the letter to a few prominent people in Urualla Town and these are the people I meant by ?all concerned?. The prominent people I addressed the letter to, are Chieftains of the Community and opinion molders of the Community. These prominent persons also share the same interest with the Traditional Ruler of the Community.? See page 68 of the Record of Appeal.

Counsel also said that the PW2, under cross-examination on the 21-6-1996 said; ?ordinarily every Urualla man or woman is interested in the affairs of the Union. ?As an indigene of Urualla, I am interested on (sic) how the Affairs of the Union are run the interest which I have should normally be satisfied by way of information by officers of the Union?. See page 62 of the Record of Appeal. In view of the forgoing, it was

submitted by Counsel that the Appellant merely gave information to those who he has a duty to give such information and that those people have a corresponding duty to receive such information. For this reason, Counsel argued that the occasion is no doubt a privileged one and therefore, that the defense of qualified privilege inures in favour of the Appellant. Counsel drew Court?s attention to Paragraphs 6 (v), a, b, c and d of the Statement of Defense where the Appellant pleaded qualified privilege.

It was further argued by Counsel that the position of the Supreme Court is that the defense of qualified privilege will avail a Defendant if there is a common interest between the maker of the statement complained of and the person to whom it was made. He said that this is what is often referred to as ?reciprocity of interest?. Counsel cited the case of MAMAN v. SALAUDIN (2005) 18 NWLR (PT. 958) 511 PARA C in support.
Learned Counsel further queried whether the defense of qualified privilege invoked by the Appellant was negative-ed as expected by the Respondent. It was argued by Counsel that under the law that the only way to negative

the defense of qualified privilege is to plead and prove express malice on the part of the Defendant which the Respondent did not do. Counsel cited the case of MAMAN v. SALAUDIN (Supra) at Page 513 ? 514 Paras H ? B. Counsel further added that the place to plead express malice is in a reply to the Statement of Defense. He cited the case of BAKARE & ANOR v. ADO IBRAHIM (1973) 6 SC 205 AT 215 in support.

According to learned Counsel the Respondent did not bother to file a reply to the Statement of Defense as required. Counsel said that he therefore did not plead or prove any express malice against the Appellant as Defendant. That being the case the defense of qualified privilege relied upon by the Defendant was not negative. Counsel told this Court that on the 6th day of March, 2009, the Lower Court against all opposition by the defense Counsel granted the Respondent leave to amend this Statement of Claim and filed a reply to enable him plead facts to negative the qualified privilege pleaded by the Defendant. It was argued by Counsel that this was after parties had closed their case, and the defense had served on the Claimant, its Written

Address and made elaborate arguments about the failure of the Claimant to file a reply. It was further argued that the decision in the Lower Court?s Ruling forms part of the grounds of this appeal and shall be addressed as issue number three (3).

In the event that his Court holds that the Lower Court was right in granting the Claimant/Respondent leave to amend, Counsel argued further that the facts pleaded in the said reply filed on 13-3-2008, (Page 84 of the Record of Appeal) are not sufficient to negative the defense of qualified privilege relied upon by the Defendant/Appellant. According to Counsel, the Claimant/Respondent pleaded that the Defendant/Appellant wrote the letter of resignation, Exhibit D because of the panel of enquiry set up by the Aba Branch of the Union at the instance of the Claimant/Respondent. It was submitted by Counsel that the position of the law is that the defense of qualified privilege is not defeated merely because the statement was made in answer to an enquiry. Counsel cited the case of F. T. in ECONOMIDES v. ROHMOPUHUS (1956) 1 FSC AT 11 and urged the Court to hold that even with the reply the Claimant failed to

negative the qualified privilege pleaded by the Defendant.

ISSUE THREE;
Whether the Lower Court was right to grant the Claimant/Appellant leave to amend his pleadings and file reply after the Defendant Counsel has files and served the Claimant his Written Address where he raised the issue of failure of Claimant to file reply.

Learned Counsel told Court that on the 28th of November, 2007, after the Defendant, now Appellant closed his case, the Court ordered the parties to file final Written Addresses and that on the 29-2-2008 the Defense Counsel filed his final Written Address and served same on the Claimant, who is Respondent in this case. In the final Written Address of Appellant, he relied on the defense of qualified privilege and argued that since the Claimant/Respondent failed to negative the plea by pleading malice and giving evidence of malice, that the allegation of libel remained un-proved. Learned Counsel further argued that for malice to properly pleaded in the circumstances it has to be done in a reply to the Statement of Defense by the Claimant and which he failed to do.

Learned Counsel also told Court that in response to the

argument of the defense Counsel, the Claimant hurriedly filed a Motion seeking the leave of the Lower Court to amend his Statement of Claim and to extend the time for him to file a reply to the Statement of Defense. Counsel said that this was opposed by the defense on the ground that the application was intended to overreach the defendant?s defense. But that despite this opposition, the Lower Court went ahead and granted the application. (See page 73 to 115 of the printed Records.) Arising from this position, Counsel submitted that the Lower Court granted this application in error. Learned Counsel conceded that even though the grant of an application of this nature is discretionary, that it may be necessary to draw attention of Court to what the Supreme Court said per BELLO, JSC in the case of OKAFOR v. IKEANYI (1979) 12 NSCC 43 AT 47-48 as follows;
?The correct principle for the guidance of a Court in the exercise of its discretionary power under the order was fully considered by this Court in CHIEF OJAH & others vs. CHIEF EYO OGBONI & Ors (1976) 4 SC 69. It was stated in that case that an amendment of pleading for the purpose of

determining the real questions in controversy between the parties ought to be allowed unless such amended will entail injustice or surprises or embarrassment to the other party or the Applicant is acting mala fide or by his blunder the Applicant has done some injury to the Respondent which cannot be compensation by cost or otherwise. In other words, the discretion ought to be exercised so as to do what justice and fair play require in the particular case.” See also OGUNTIMEYIN vs. GUBERE & ANOR (1964) 1 ALL NLR 176.

It was further contended by Counsel that the grant of leave to amend the Claimant/Respondent?s pleading at a time when the Appellant had filed its final written address was actually meant to overreach the Appellant. Counsel urged the Court to hold that the said application was granted in error and accordingly set it aside.

ISSUE FOUR;
Whether the Lower Court was right to admit the Photocopy of letter dated 15th December, 1998 addressed to the Traditional Ruler and the Eze Urualla as Exhibit D without proper foundation.

This Court was informed that on the 20th of February, 2004, the Claimant/Respondent tendered an

Exhibit D, which is a Photocopy of the letter of resignation dated 15th December, 1998, the Paragraph two (2) of which gave rise to this action. According to learned Counsel what the Claimant tendered was a photocopy of the said letter of Resignation addressed to the Traditional Ruler, of EZE URUALLA and not to the Claimant/Respondent. Counsel contended that apart from the fact that the letter was not addressed to the Respondent, it was also not specifically pleaded anywhere in the pleadings and so was the photocopy. In addition, Counsel said that the letter of resignation was not copied to the Claimant as the Claimant stated in evidence. In short Counsel said that no foundation was laid for the tendering of the said photocopy. He argued that the Claimant/Respondent was neither the maker nor the person to whom it was addressed. It was argued that the document and ?photocopy of the letter of resignation? did not meet the requirement of the Evidence Act for its admission. Counsel referred Court to Section 85 of the Evidence Act which provides that contents of documents may be proved either by primary or by secondary evidence. He said that primary

document is by tendering the Original Document itself. He further said Sections 89, 90- and 91 provides the conditions and circumstances for tendering Secondary Documents. But that in all other cases documents or contents of documents must be proved by primary evidence. (See Section 88 of the Evidence Act).

It was argued by Counsel that the letter of resignation ought to be tendered by the Traditional Ruler to whom the letter was addressed and that for any other person to tender the document, a serious foundation needed to be laid to show why the Traditional Ruler did not come forward to tender the letter. Counsel urged this Court to agree with Appellant?s argument and strike out or reject Exhibit D as it was admitted in error. In the final analysis, Counsel urged Court to allow the appeal of the Appellant and set aside the Judgment of the Lower Court.

ARGUMENTS OF LEARNED RESPONDENT?S COUNSEL;
ISSUE ONE;
Counsel said that the document marked Exhibit D in the Court below is the letter dated 15th December, 1998. He said that the letter is at page 130 of the records and that it is written by the Appellant to Eze Urualla and copied

to all concerned all concerned. According to Counsel the Appellant and a few others were appointed members of URUALLA Town Union Care Taker Committee with the Respondent who as Chairman and leader of the said Care Taker Committee. Counsel said that members of the Committee were not appointed in writing and that the Appellant after serving in the Committee for a while published Exhibit D resigning his membership. He said that although Exhibit D was copied to all concerned, that the Appellant did not give copies to any member of the Committee. Counsel said that Appellant admitted making the publication but contends that it is not defamatory of the Respondent but that the Lower Court held otherwise.

According to Counsel the law is settled that to understand the import of a document, the document must be read as a whole and not in piece meal and that no paragraph shall be read in isolation but as part of the whole document. Counsel cited the case of ORUBU v. NEC (1988) 5 NWLR (PT. 94) 323. Counsel further argued that Paragraph 1 of Exhibit D states that the Appellant can no longer continue as a member of ?Urualla Care Taker Committee? while

Paragraph 2 of the said Exhibit D dwells on Appellant?s reason for discontinuing his membership. Counsel argued that all his reasons refer to ?the leadership of Urualla Caretaker Committee? and that the leader of the said Committee is the Respondent in this appeal. Learned Counsel told Court that Paragraph 1 of the Statement of Claim at page 9 of the records described the Respondent as follows:
?The Plaintiff was a Ford Foundation Scholar, a 1977 graduate of the University of Nigeria, a senior member of Government College Old Boys Association, a retired Superior Police Officer, the President of Urualla Town Union otherwise known as Urualla Progressive Union, a legal practitioner and Head of Iwuoha Chambers with Chief M. I Ahamba, SAN as the Principal Counsel, an active member of the Nigeria Bar Association Owerri branch, an active member of Saint John and Michael Catholic Churches Urualla and Amakohia Owerri.?

Learned Counsel said that Appellant did not deny the above description of the Respondent but merely made a general traverse at Paragraph 2 of his defense which does not suffice as a denial. Counsel queried whether

the Appellant?s description of the Respondent as being deceitful, crooked, insincere, very weak, selfish, disorderly are complimentary or defamatory of a legal practitioner, Head of a Law Chambers, A Ford Foundation Scholar, a 1977 University graduate, an active member of the Bar, a retired Superior Police Officer, a President of his Town Union and Old Boy of a Government College and an active church member? He cited the case of AKOMOLAFE v. NEIC LTD (2000) FWLR (PT. 27) 2016, where it was said that a publication that; ?a lawyer failed in all his claims against a company? was held to be quite libelous as it portrayed the lawyer as one who is never serious with his cases and stained the image and reputation of the lawyer.

In the instant case, Counsel said that criminal and unwholesome conducts are alluded to the Respondent in the publication as one who is deceitful, crooked and insincere. Counsel also submitted that such references to a lawyer are worse that merely saying the lawyer lost all his claims to a company as was the case in AKOMOLAFE Case (supra). Counsel also cited the case of MAYENGE v. PUNCH NIG. LTD (1994) 7 NWLR (PT.

358) 570, where it was held that a publication of words or allegation which import commission of a crime for which the Plaintiff can be made to suffer corporally is actionable. In adopting the decision in AKOMOLAFE?S case, Counsel submitted with respect that the publication in the letter tendered in the Lower Court and marked Exhibit D is to say the least excessively and extremely defamatory as well as libelous of the Respondent.

It was further argued by Counsel that the said publication was made to a group of persons who are members of Urualla Community members. He further said that the PW2 who is a member of Urualla Community, Senior Lecturer in Imo State University and the Secretary of the addressee?s cabinet who testified showing his understanding of the words used in the letter. Counsel also said that the PW2 emphatically reiterated that the Respondent was the leader of Urualla Care Taker Committee at the time the publication was made. Still in his arguments, Counsel said that the Evidence of the PW2 is at pages 55 ? 65. It was also argued by Counsel that the denial by the Appellant that his publication did not refer to the

Respondent is belated as the Appellant did not say so when the addressee of the publication (Eze Urualla) invited him and advised that he rendered an apology.

In determining whether the publication in Exhibit D in the circumstances it was made was defamatory of the Respondent, Counsel relied on the principle laid down in AKOMOLAFE v. NEIC (supra) where it was held that a publication is defamatory if it is calculated to lower the Plaintiff in the estimation of right thinking people or to cause him to be shunned or avoided, or expose him to hatred, contempt or ridicule or to disparage him in his office, profession or calling or reflect on his character. See also SECTION 3 (1) (a) ? (c) DEFAMATION EDICT 1994 LAWS OF IMO, SKETCH v. AJAGBEMAKOFERI (1989) 1 NWLR (PT. 100) 678; GIWA v. AJAYI (1993) 5 NWLR (PT. 294) 428. Counsel urged the Court to resolve this issue in the affirmative and hold that the publication marked Exhibit D in the Lower Court is defamatory of the Respondent.

ISSUE TWO;
Counsel told Court that Appellant did not deny publishing the letter marked Exhibit D which is the cause of action in this matter. But that he relied on

the defense of qualified privileged as his defense. Counsel referred to the learned Author of GATELY ON LIBEL AND SLANDER 8TH EDITION at Paragraph 441 stated the position of the law on qualified privilege as follows:
?There is an occasion upon which, on grounds of public policy and convenience, a person may, without incurring legal liability, make statement about another which are defamatory and in fact untrue. On such occasion, a man stating what he believes to be true about another, is protected in so doing, provided he makes the statement honestly and without any indirect or improper motive These occasions are called occasions of qualified privileged for the protection which the law, on groups of public policy, affords is not absolute but depends on the honesty of the purpose with which the defamatory statement is made? (Underlining, that of Counsel).

From the cited above learned Counsel reeled out what he considered the conditions for the application of the plea of qualified privilege to as follows:
(a) He must state what he believes to be true of the Respondent at the time he made the publication.
(b) He must make the

publication honestly, without any indirect or improper motive.
(c) The honesty of the purpose with which the defamatory statement is made by the Appellant (publisher) must be glaring and not doubtful.
Learned Counsel cited the case of FIRST BANK OF NIGERIA PLC v. ABOKO (2006) ALL FWLR (PT. 301) 1897 where this Court held that for a plea of qualified privilege to apply, the communication must be made ?bona-fide, honestly and without any direct or indirect motive, and the publication must not be actuated by malice?.
In EMEAGWARA v. STAR PRINTING AND PUBLISHING CO. LTD (2000) 5 SCNJ 115 AT 185 cited by Counsel he said that the Supreme Court held that for:
?A report to be privileged must be fair and accurate. What is stated must be substantial and fair comment of what occurred to earn a defense of privilege.?

Learned Counsel therefore posed a number of questions, and in answering in which he argued that the publication in Exhibit D was not made bona-fide, honestly and in which the contents cannot be believed to be true; and that it was not made without any direct, indirect or improper motive and for an honest

purpose. Again, that the publication was not a fair and accurate account of what occurred devoid of malice. And in addition, that the Appellant did not state what he believed to be the truth of the Respondent at that point in time. It was therefore contended by Counsel that the Appellant had the onus to answer these questions to substantiate his claim to qualified privilege which he failed to discharge. Counsel added that the Lower Court could not act on instincts but on facts before it.

Learned Counsel said that the Appellant made heavy weather of the failure to file a Reply to the Statement of Defense until the Lower Court granted leave to the Respondent to do so. It was held in PETERSIDE v. FUBARA (2006) ALL FWLR (PT. 297) 1064 AT 1079 Paragraphs F ? G that
It is necessary to deliver a reply averring therein particulars of express malice. However, failure to file such a reply does not defeat the Plaintiff?s action where there is a clear evidence of malice in which the allegation of misconduct against the Plaintiff is adjudged to have no foundation. In such a case, the defense of qualified privilege is adjudged to be

without any legal efficacy.?

Counsel further argued that in this matter, the Appellant failed in all ramifications to lay any foundation or substantiate his allegations that the Respondent is deceitful, crooked, insincere, disorderly, weak, selfish etc as stated in his publication. Consequently, Counsel said that the Appellant?s defense of qualified privilege lacks legal efficacy. Counsel urged this Court to resolve this issue in favour of Respondent.

ISSUE THREE;
Learned Counsel drew attention to Paragraph (12) (i) of the Statement of Claim at page 12 of the records of appeal, where the Respondent sought the following relief from the Lower Court:
?A declaration of the Court that the publication in the letter dated 15/12/98 by the Defendant against the Plaintiff is malicious, libelous and in absolute bad faith ?

Counsel said that Respondent later followed this up by bringing a motion before the Court below for extension of time to amend his pleadings by filing a Reply to the Statement of Defense to include particulars of malice and absolute bad faith already pleaded. Counsel directed Court to pages 86-88

and 99-101 of the printed records for the motion, affidavit and written arguments at the Lower Court. Respondent cited and relied on several Supreme Court authorities including CROPPER v. SMITH (1984) 36 CHD 710-711; OGUNTIMEHIN v. GUBERE (1984) 1 ALL NLR 176 at 180 ENGLAND v. PALMER (1955) 14 WACA 569 AT 661, ADEKEYE v. AKIN OLUGBADE (1987) 3 NWLR (1987) 3 NWLR (PT. 60) 214 AT 223-224.

After taking arguments from both Counsel at pages 102 ? 104 the Lower Court at page 115 of the records ruled and granted the prayers sought. The matter was then adjourned to the 18-3-2009 to enable parties take necessary action to amend their addresses if necessary and on the said 18-3-2009 matter was further adjourned to 27-3-2009 for adoption of written addresses as both Counsel confirmed that no amendment was required in their addresses.

What the reply to the statement or any Reply to the Statement of Defense merely included in this particular case, Counsel said are the particulars of malice as part of Respondent?s pleadings since malice and bad faith were already pleaded in Paragraph 12 (i) of the Statement of Claim. It was contended by Counsel that

the parties in the Court below proceeded with the suit as if the Respondent?s pleadings have been what it became after the amendment as if the particulars of malice and bad faith were part of Respondent?s pleadings. He said in addition that all that the ruling of the Lower Court did was to write down the reply to the Statement of Defense which the Appellant had known all along to be the Respondent?s case. Counsel contended that the inclusion of the particulars of malice in the reply did not take the Appellant by surprise as the evidence on malice with particulars were already in the evidence of the witnesses forming the records of proceeding in the Lower Court.

In COPPER v. SMITH (1984) 36 CHD 710-711 BOWEN LJ held:
?I think it is well established principle that the object of Courts is to decide the rights of the parties and not punish them for the mistake which they make in the conduct of their cases by deciding otherwise that in accordance with their rights. I know of no error or mistake which if not fraudulent? the Court ought not correct.”

It was contended by Counsel that Appellant did not plead fraud in his

counter affidavit to the motion. Counsel cited the case of ADEKEYE v. AKIN-OLUGBADE (1987) 3 NWLR (PT. 60) 214 AT 223-224 where the Supreme Court per OPUTA, JSC (of blessed memory) had this to say;
?An amendment is nothing but the correction of an error committed in any process, pleading or proceeding in law or in equity? The object of Court is to decide the rights of the parties and not to punish them for mistakes they may make in the conduct of their cases by deciding otherwise than in accordance with their rights? Blunders may occur and nowadays they do occur with disturbing regularity, but all the same the Court should not be stampeded into chasing the shadows of these blunders rather than facing the substance of justice of the case. The Courts have therefore through the ages taken a stand that however negligent or careless may have been the slip, however late the proposed amendment it ought to be allowed.? (Underline, that of Counsel.).

All said and done Counsel urged the Court to resolve this issue in favour of the Respondent.

ISSUE FOUR;
It was contended by learned Counsel that the letter dated 15th

December, 1998 and titled LETTER OF RESIGNATION at page 130 of the records of appeal was addressed to Eze Eddy Okosisi Ezeanyika XI by Emeka C. Izeji (Ike-Oha 1) and copied to all concerned. Counsel said that the author of the letter was the Defendant in the Court below and now the Appellant herein. According to Counsel, the said letter which was the cause of action in the Lower Court is pleaded in Paragraphs 6 and 8 of the Statement of Claim at page 12 of the record of Appeal wherein the allegedly defamatory words/sentences were reproduced. Counsel also said that in Paragraph 6 of the Statement of Defense at page 28 of the records of appeal, the Appellant admitted publishing the said letter but relied on the defense of qualified privilege and also pleaded that the document made no reference to the Respondent. He said that the document was copiously pleaded in the Lower Court, and that it is relevant being the cause of action and that its publication was admitted by the Defendant now Appellant. Counsel said that the document is admissible in law, and that Notice to produce the original having been given to the Appellant at pages 23 and 32 of the records of

appeal. He also said that the Notice to produce was admitted as Exhibit A in the Lower Court. He further said that admissibility of this notice to produce is among other requirements, a fulfillment of the requirement of the law which were glaringly satisfied in this matter. He cited the cases of ANAJA v. UBA (2011) ALL FWLR (PT. 600) 1289 AT 1310 Paragraphs E ? G; DUNIYA v. JIMOH (1994) 3 NWLR (PT. 334) 609; OKONJI v. NJOKINMA (1999) 14 NWLR (PT. 638) 250.

Counsel said that in Paragraph 8 of the Statement of Claim at page 12 of the records, the Respondent stated that he sought and obtained a copy of the letter Respondent went further to file and serve Notices to Produce Documents on the Appellant. He said that the letter dated 15-12-98 (cause of action) is among the documents sought to be produced in the Notice marked Exhibit A in pages 23 and 32 of the records:
Counsel referred Court to the case of OCEANIC BANK INTERNATIONAL LTD v. UDUMEBRAYE (2008) ALL FWLR (PT. 430) 769 AT 784 B ? D where the Court of Appeal held:
?A Notice to produce a document only entitles the party serving the Notice to

adduce secondary evidence where the party who is in adverse possession of the primary evidence fails or refuses to produce the evidence stated in the Notice.?
See also the decision in YUSUF v. OBASANJO (2006) ALL FWLR (PT. 294) 387 AT 476 B ? D where the Court held:
?The position of the law is very clear, that is, a person on whom Notice to produce is served to produce documents, is not obliged to produce same or tender the document named in the Notice, let alone to tender by himself in evidence. In such situation, the party that issued the Notice, having satisfied that the opponent party has failed to produce the document, secondary evidence of the document can be tendered.?
See also BUHARI v. OBASANJO (2005) ALL FWLR (PT. 273) 1.?In line with the above authorities, the Respondent in his evidence at page 35 of the records tendered the Notice to produce which was admitted in evidence and marked Exhibit A. Counsel finally urged the Court to dismiss this Appeal and affirm the decision of the Lower Court.

RESOLUTION OF APPEAL;
ISSUES ONE & TWO;
“1. Whether the Paragraph in the letter of resignation

refers to the Claimant alone as a person or to the Caretaker Committee members as a group and did the said letter libel the Claimant.
2. If the answer in Paragraph two is in the affirmative does the defense of qualified privilege not avail the Defendant?”

It was the contention of learned Appellant?s Counsel that the second Paragraph of the letter whose contents is in dispute does not refer to the person of the Claimant, claiming in the process that if the Appellant had intended to refer to the person of the Claimant, he would have gone ahead to do so by stating his name or his office as Chairman or President of the Town?s Caretaker Committee. Counsel argued that, rather the paragraph refers to the group, the Caretaker Committee and not to any one person. On the part of the Respondent, a learned legal practitioner who appeared in person was of the view that the second Paragraph of the contentious letter referred to the ?very weak, crooked, deceitful and selfish leadership? of the Town?s Caretaker Committee which referred to his person. He said that criminal and unwholesome conducts are alluded to his person in the

publication as one who is deceitful, crooked and insincere and as a result of which he has suffered damages.

Generally, the tort of defamation is a complex and detailed one. A defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt, or ridicule, or which tends to lower him in the estimation of right-thinking members of society. See the cases of ALAWIYE v. OGUNSANYA (2004) 4 NWLR (PT. 864) 486; GUARDIAN NEWSPAPER v. AJEH (2005) 12 NWLR (PT. 938) 205 in this connection.

Subject to the differences between the two types of defamation, which are libel and slander the claimant in an action for defamation has the onus of proving five (5) coterminous ingredients as follows; (1) That the statement was defamatory; (2) That it referred to him; (3) That it was published, i.e., communicated, to a third party; (4) The falsity or lack of accuracy of the words complained of and (5) That there are no justifiable grounds for the publication of the words. See the case of ILOABACHIE v. ILOABACHIE (2005) 13 NWLR (PT. 943) 695. Usually, it is after the Claimant discharges the onus placed on it that the onus then shifts to the

defendant to prove any of the following three defenses: (1) truth (or justification); (2) fair comment on a matter of public interest, or (3) that it was made on a privileged occasion.

It must be borne in mind that an action for defamation is a purely personal action. The claimant must be the person who has been directly and personally defamed. The statement must refer to the claimant, i.e., identify him or her, either directly or indirectly. A major argument which featured very prominently in this Appeal is the issue of whether a class or group of persons can be defamed, the Appellant having repeatedly maintained that the second Paragraph of the contentious publication referred to anyone but the person of the Respondent as it was directed at the Caretaker body of Urualla Town Progressive Union.

The settled position of the law is that a class of persons cannot be defamed as a class, nor can an individual be defamed by a mere general reference to the class to which he belongs; but a person or persons may bring a claim if he is or they are pointed to by the words complained of. The example is often made of the analysis given by WILLES, J in EASTWOOD

v. HOLMES (1858) 1 F&F 347 at 349 where he said that;
“If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there was something to point to the particular individual”
Where, however, the statement made refers to a limited group of people, for instance, where the tort-feasor says that; “all Tailors are deceitful?, it would not be considered defamatory. It would however be a different kettle of fish where what is said is referred to all the Tailors from a particular Garment Factory. See BROWNE v. DC THOMSON (1912) SC 359. This issue was also considered by the House of Lords in KNUPFFER v. LONDON EXPRESS NEWSPAPER LTD [1944] AC 116. The argument of Respondent in this Appeal is that although the second Paragraph of the contentious letter referred to a class, which happens to be the Caretaker Committee of the Towns Union, the letter invariably referred pointedly at his person by the reference made to the leadership of the Committee.
The test to be applied is whether the defamatory statement is capable of being understood as referring to the person of the Claimant. The publisher’s intention is usually

irrelevant in the scheme of things. It would be recalled that the source of dispute in this matter is the contentious publication made by the Appellant, a member of the Urualla Community Caretaker Committee appointed to oversee the activities of the Urualla Town Progressive Union. In seeking to resign his membership of the said caretaker committee, the Appellant wrote a letter dated the 15th day of December, 1998 which he addressed to His Royal Highness, the EZE URUALLA, EZE EDDY OKOSISI EZEANYIKA XI where he expressed his disappointment in the activities of the Committee of which he was member and had said so in the following words at Paragraph two (2);
?The leadership is full of disorder, it is very weak, crooked, Deceitful and selfish. There is no sincerity of purpose in all our deliberations. I am highly demoralized and disappointed.?

I have taken a rather very calm consideration of the said contentious second Paragraph of the letter dated the 15th day of December, 1998. The argument of the Respondent, which I unfortunately find hard to follow, is that the Appellant?s use of the word; ?Leadership? in the paragraph

clearly refers to his person as the President of the Caretaker Committee. To therefore carefully construe the contentious publication I have had to pay serious attention to the wisdom in the Respondent?s submission in ensuring that what was published in the second Paragraph is not only read as a whole, but also that it is not considered in piece meal; in addition to the fact that no word in the paragraph is read in isolation but as part of the whole document. Consequently, I simply cannot say that I am in agreement with Respondent?s interpretation of the contentious publication.

It is obvious that the word; ?Leadership? used in the said publication and in the con in which it is used, is mainly generically employed in describing the activities of the Caretaker Committee body, which he was no longer ?well pleased? as one of its members of its Executive. Still on the use of the word: ?Leadership?, it is to be recalled that the purpose of appointing a Caretaker Committee for Urualla Community is to assist in re-organizing the Urualla Progress Union as contained at Paragraph 3 of the

Claimants/Respondent?s statement of claim which is reproduced here for the avoidance of doubt;
?3. In 1998 the Plaintiff was appointed the Chairman of a Caretaker Committee (hereinafter referred to as the Committee) to reorganize Urualla Progress Union (hereinafter referred to as the Union). The defendant was a member of the Committee.?

What could therefore be logically deduced from the foregoing is the fact that with the appointment of the Caretaker Committee, the leadership position hitherto enjoyed by the dissolved Urualla Progressive Towns Union is automatically transferred to the Caretaker Committee as a Community based internal self-governing body. As with all such changes, the mantle of leadership of the people of Urualla Community fell squarely on the shoulders of the members of the newly appointed Caretaker Committee. Therefore, when the Appellant made his description concerning the activities of the Committee thus; ?full of disorder?very weak, crooked, deceitful and selfish? and ?which had no sincerity of purpose in all our deliberations?, he could not be said to have referred to any one

person, let alone the Chairman of the Committee who is the Respondent in this Appeal. As a member of the Committee, it is important to note that the description also includes him and by so doing he was only expressing his disappointments with the activities of Committee of which he was a member and was no longer pleased with. It is on this score that I am unable to agree with Respondent that the use of the word; ?Leadership? in the second paragraph of the contentious publication frontally referred to the person of the Respondent. I would rather the use of the word referred as a whole to the Caretaker Committee now occupying leadership position in the lives and in the affairs of the members of the Urualla Community.

On the question of whether the defense of qualified privilege avails the Appellant, it may be proper to note that the defense operates only to protect statements which are made without malice (i.e., spitefully, or with ill-will or recklessness as to whether it was true or false). Usually, the defense of qualified privilege will apply where the statements are made in pursuance of a legal, moral or social duty, and only if the party

making the statement had an interest in communicating it and the recipient had an interest in receiving it. Generally, statements made in the protection of an interest, e.g., public interests or the defendant’s own interests in property, business or reputation, will qualify as privileged Communication. See ECONOMIDES v. THOMOPOLOUS (1956) NLR 7; DIKEY v. ODENIYI (1960) WNLR 102; MAJEKODUNMI v. OLOPADE (1963) WNLR 12; OMO-OSAGIE v. OKUTOBO (1969) 2 ALL NLR 175.

Fair and accurate reports of parliamentary proceedings and fair and accurate reports of public judicial proceedings especially when the report is not published contemporaneously with the proceedings will also qualify under the defense. Perhaps, to demonstrate the fine points of this defense, the Learned Authors, of SALMOND and HEUSTON on the Law of Torts, 1996, p. 154 made the following examples;
?Dictating a defamatory letter to a typist is probably slander, but when the letter is published to a third party it is libel. However, in BRYANSTON FINANCE v. DE VRIES [1975] QB 703 it was held that where a letter was written to protect the interests of the business there was a common

interest between the employer and employee, and so a letter dictated to a secretary in the normal course of business was protected by qualified privilege?.

At page 68 of the printed Records of Appeal, Appellant testified before the Lower Court that the contentious letter and subject matter of this Appeal was addressed to the Traditional Ruler of Urualla because he is the custodian of the moral values of the Town. Appellant further testified that the Traditional Ruler as the custodian of the Town has a special interest in the success of the Caretaker Committee?s work and the overall well-being of the Community. He also testified that he had to copy the letter to a few notable and prominent people in Urualla Town and Chieftains of the Community who shared a common interest in the ways of the Community. At page 47 of the printed records, Respondent also told Court under cross examination that membership of the Urualla Progressive Town Union runs into several thousand as every male adult of the Community is a member, while there is also a women?s wing. It is to be further recalled that the purpose of appointing a Caretaker Committee for the

Urualla Progressive Town Union is to assist for whatever reasons, in re-organizing and repositioning of the Urualla Progress Union, to ensure its effectiveness in its tasks of Community development.

In therefore taking a cue from the foregoing analysis and the argument of Appellant in this connection the letter written and published on the 15th day of December, 1998 and addressed to His Royal Highness, the EZE URUALLA, EZE EDDY OKOSISI EZEANYIKA XI, so long as it is one published to a third party, may be seen as an act of libel, but as long as the letter was written with the aim of protecting the common interests of the Community, it becomes one that is definitely protected by the defense of qualified privilege. A common interest between the Appellant as the writer of the letter and who is also a member of the Caretaker Committee, writing to the Traditional Ruler as the custodian of the values of the people, is definitely one that cannot be taken for granted so long as the writer and the recipients share a common interest in the overall well-being and progress of the Community. The two issues are therefore resolved in favour of the Appellant.
?

ISSUE?THREE;
Whether the Lower Court was right to grant the Claimant/Appellant leave to amend his pleadings and file reply after the Defendant Counsel has filed and served the Claimant his Written Address where he raised the issue of failure of Claimant to file reply.

The Appellant?s grouse under this issue arose from the fact that on the 28-11-2007, the Appellant as Defendant closed its defense and the Court ordered the filing of written addresses. After the defense filed and served its written address on the Claimant on the 29-2-2008, in which the Appellant as defendant raised and argued the defense of qualified privilege, the Respondent as Claimant, realizing that it did not negative the plea of qualified privilege, hurriedly filed a Motion seeking the leave of the Lower Court to amend his Statement of Claim and to extend time for him to file a reply to the Statement of Defense. On the part of the Appellant as defendant the grant of the application was stoutly opposed on the ground that its grant was intended to overreach the defendant?s defense.

In answer, learned Respondents Counsel told Court that the Claimant at Paragraph (12) (i)

of its Statement of Claim had originally pleaded that the publication in the letter dated 15-12-1998 is malicious, libelous and in absolute bad faith and that the motion brought before the Lower Court for extension of time to amend his pleadings by filing a Reply to the Statement of Defense was merely to include the necessary particulars of malice and absolute bad faith which had already been pleaded. However the question that arises at this stage to be considered is whether or not the lower Court can amend the Respondent?s pleadings at that stage of the case. One of the general principles in matters of this nature is that pleadings may be amended at any stage of the proceedings before judgment so long as such amendment does not alter the character of the case. See the cases of OSINUPEBI v. SAIBU (1982) 7 SC. 104; SHELL BP v. JAMAAL ENGINEERING (1974) 4 SC. 33 and OGUNTIMEHIN v. GUBERE (1964) 1-2 NLR 176.

I also need to state that an amendment will also be allowed by Court when it is intended to do substantial justice to the parties to the action before Court. However, an amendment will not be allowed where it is to create a cause of action where

none existed. For this, see the old case of OLOTO v. A. G. (1972) F.S.C. 74. It is also trite that an amendment will be granted even at a later stage in the proceedings, if such does not take the other party by surprise or intended to overreach the case of the other party. See OGUNTIMEHIN v. GUBERE (supra). Usually in the exercise of the Court?s discretion on whether to grant an application for an amendment or not, the Court must consider the following three (3) factors, namely:-
“1. The materiality or the necessity of the amendment being sought.
2. The rules of audi alteram partem.
3. The genuineness of the amendment sought.”
See NURU v. KORE (1997) 6 NWLR (pt. 509) 496 at 505 Paragraphs E-F. See also ABOJOJOYE v. UBA (1986) 2 NWLR (pt. 20) 101 at 109, where this Court per WALI, JCA (as he then was) observed as follows;
?In considering whether or not to grant amendment to pleadings, the Court must always be guided by the materiality of the amendment sought, the rules of ?audi alteram partem? and the genuineness of the amendment. But the Court will not grant an amendment which would cause injustice to the

other party- TAIWO ODUWAIYE v. ONA OKESANYA (1968) NWLR 430: DOMINION FLOUR MILLS LTD v. ABIMBOLA GEORGE (1963) 1 ALL NLR 71

Here was a situation in which trial had been concluded, and the Defendant, now Appellant had filed its final written address in Court, raising and arguing the defense of qualified privilege. The Claimant?s/Respondent realizing afterwards that it did not file a Reply as required to supply the particulars of malice, then decided to amend its pleadings by filing the said Reply. The contention of Claimant/Respondent as it relates to this application is that it is intended to include the particulars of malice which had been pleaded in Paragraph 12 of the statement of Claim. I have carefully considered the objection raised by the Defendant/Appellant in opposition to the grant of the application for amendment against the reasons given in support of its grant by the Claimants. Appellant had contended that the Lower Court?s amendment of the Respondent?s pleading resulted in overreaching the Appellant?s defense. In the case of NATIONAL INLAND WATERWAYS AUTHORITY v. SPDC NIGERIA LTD (2008) LPELR-1963

SC, the Supreme Court per TOBI, JSC defined ‘overreaching’ in the following words;
?Overreaching means to circumvent outwit or get the better of something by cunning or artifice. It also means to defeat one?s object by going too far. It connotes smartness on the part of a party in the litigation to defeat his opponent by a thoroughly organized plan to frustrate the intention and intendment of the adverse party. An overreaching conduct is an inequitable conduct because it is not fair and just.?

The settled position of the law is that the Court would not allow an amendment if it is shown that the adverse party would be prejudiced by the amendment. It would be disallowed where the award of damages would not be enough to assuage for the inconveniences caused the adverse party. An amendment would also be refused where the application is brought mala fide due to reason of the introduction of an issue which was nonexistent and now tends to project the case of one party at the expense of the other. By allowing the amendment there was brought to bear in the case, an issue of extreme importance which succeeded in changing the

character, complexion and coloration of the case originally brought by Claimant to the Lower Court for adjudication. The application therefore, ought to have been struck out by the Lower Court.

On the question of the seriousness of failure to file a Reply to the statement of defense where a defense of qualified privilege is raised by the defendant in a civil claim grounded in the tort of defamation, learned Respondent cited the case of PETERSIDE v. FUBARA (Supra) where this Court per OMAGE, JCA held the view that failure to file such a reply does not necessarily defeat the Plaintiff?s action where there is a clear evidence of malice. This however, was actually a minority view of this Court on the issue, where the lead judgment had found that malice was neither pleaded nor evidence led thereof and that it was fatal to the case of the claims for defamation.

The pertinent question to address here is; whether there is clear evidence of malice in the second paragraph of the publication by which the Respondent claimed to have been defamed. It must be borne in mind that in this case, qualified privilege was pleaded based on the need to get things

going rightly in Urualla Community and also to attract the Traditional Ruler?s intervention in remedying the sordid situation which Respondent felt existed. At Paragraph 6 (v) the Appellant as Defendant pleaded as follows;
?In the alternative, the Defendant hereby pleads qualified privilege because the said words were published on an occasion of qualified privilege.
(a) The Defendant was a member of Caretaker Committee raised in a hurry because election into the Town Union Offices of Urualla Town Union could not take place in that year.
(b) In the course of the meetings of the Committee it became clear to the Defendant that some of the Committee members had a different agenda which they wanted to implement.
(c) The Defendant unable to arrest the situation, decided to resign his position in the Committee.
(d) The letter of resignation was addressed to the EZE of the Community who had a duty to receive it.?

Qualified privilege as a defense is one which can only be claimed where the occasion of the publication is shown to be privileged. Where, as in the instant Appeal, the Caretaker Committee said to have been

raised in a hurry and intended to salvage the dwindling fortunes of the Community from its path of perfidy is seen by an insider to have veered off its path of righteousness, with members having different agendas, one would hardly be justified in insisting that their activities should not be made known by the Appellant who has a moral duty to do so. In the case of ILOABACHIE v. ILOABACHIE (Supra) PATS-ACHOLONU, JSC (of Blessed Memory) was of the view that the interest of the addressee is important in considering privilege whether qualified or not and that the Court should consider whether the motives are altruistic or malicious. I simply cannot agree less. The motive of the Appellant in the instant Appeal is clearly borne out of the fact that he was incensed by the decline in the fortunes of Urualla Community in the face of lack of genuine commitment on the part of the Caretaker Committee, which he saw to be divided amongst members who had different personal agendas of their own, at the expense of the Community.

All said and done, what Respondent should perhaps, be made to understand here is that it is mandatory for the Claimant to deliver a Reply to

show that the Defendant was actuated by express malice and that where the Claimant fails to deliver the mandatory Reply, the failure is fatal to the Claimant?s claim. There is Supreme Court decisions in support of this position and shall be referred to in the course of this judgment. The need to deliver a Reply is actually a requirement of the Rules of Court. See Order 17 Rules 1, 2 and 3 of the Imo State (Civil Procedure) Rules, 2008 which is reproduced as follows for the avoidance of a doubt;
“1. Wherever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred.
2. Where in an action for libel or slander the defendant pleads that any of the words or matters complained of are fair comment on a matter of public interest or were published upon a privilege occasion, the Plaintiff shall, if he intends to allege that the defendant was actuated by express malice, deliver a Reply giving particulars of the facts and matters from which such malice is to be inferred.

3. Where in an action for libel or slander the defendant alleges that in so far as the words complained of consists of statements of facts, they are true in substance and in fact, and in so far as they consists of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the like effect, he shall give particulars stating which of the facts and matters he relies on in support of the allegation that the words are true.?
Order 17 Rules 1, 2, and 3 of the Imo State High Court (Civil Procedure) Rules 2008 has a similar provision as Order 82 Rule 3 of the Rules of the Supreme Court PRACTICE of England 1965, which states that where in an action for libel the defendant pleads fair comment on a matter of public interest or published upon a privileged occasion, the Claimant if he intends to allege that the defendant was actuated by express malice shall deliver a Reply giving particulars of the facts and matters from which such malice is to be inferred. This Rule of Court was interpreted by the Supreme Court in the case of CHIEF S. B. BAKARE, WEST AFRICAN PILOT LTD. v. ALHAJI ADO IBRAHIM (1973) 3 SC 205. The effect of failure to

file the mandatory Reply shall preclude the Claimant from raising the plea of express malice to defeat the defenses of fair comment and qualified privilege.

Having said much, this issue is resolved in favour of the Appellant.

ISSUE FOUR;
Whether the Lower Court was right to admit the Photocopy of letter dated 15th December, 1998 addressed to the Traditional Ruler and the Eze Urualla as Exhibit D without proper foundation.

There shall be no need to pore over dusty volumes in the Court?s bid to resolve the issues raised in arguments here. Where a document that is copiously pleaded and is considered relevant especially where it constitutes the cause of action and its publication in a defamation action is admitted by the Defendant now Appellant; and where a Notice to produce the original has been given to the adverse party considered to be in possession of the original, the Court is entitled to admit into evidence, the copy tendered where the original is not produced before Court. See the cases of ANAJA v. UBA (2011) ALL FWLR (PT. 600) 1289 AT 1310 Paragraphs E ? G; DUNIYA v. JIMOH (1994) 3 NWLR (PT. 334) 609; OKONJI v. NJOKINMA

(1999) 14 NWLR (PT. 638) 250.

This issue is resolved against the Appellant. In spite of this position, the Appeal is adjudged meritorious and it is therefore allowed. The judgment of U. D. Ogwuruike, J of the High Court of Imo State sitting at Owerri and delivered on the 20-5-2009 is hereby set aside. There shall be cost of N50,000.00 in favour of the Appellant.

IGNATIUS IGWE AGUBE, J.C.A.: I have the privilege of reading in advance the judgment of my learned brother, F. O. Oho, JCA, I agree with his reasoning and conclusions. I am also of the view that the Appeal is adjudged, meritorious and should be allowed. I abide by the consequential order made thereto.

ITA GEORGE MBABA, J.C.A.: I had the privilege of reading, in draft, the lead judgment, just delivered by my learned brother, FRED. O. OHO JCA and I agree with his reasoning and conclusions, completely.

The Respondent was wrong to take what, I consider, Appellant?s sincere assessment of the leadership of a committee, which he too served, personal. Appellant had said:

?The leadership is full of disorder, it is very

weak, crooked, deceitful and selfish. There is no sincerity of purpose in all our deliberations. I am highly demoralized and disappointed.?

I think, that was a self reflection on the Committee in which Appellant served and he was telling himself and his colleagues the hard truth, which should have made the head and other members of the Committee to sit up and adjust and correct themselves, where they found substance in Appellant?s criticism or assessment. That the Appellant said ?There is no sincerity in ?all our deliberations?, shows, clearly, that he was not targeting the Respondent, personally, as an individual but was but was taking the Committee he served to the cleaners, and he was part of the mess. It was an insider?s self indictment, which should be privileged, especially as it explained the reason for (his) Appellant?s resignation from membership of the Committee and the letter, complained of, was addressed to the Eze of the Union and branches/members of the Town Union (Organization) which the Committee served.
?

To establish defamation (and libel

in particular), the plaintiff must prove that:
“(1) The words complained of were defamatory;
(2) and were published, in writing (in permanent form) to, at least, one person other that the plaintiff. (Where it is slander the words are communicated in transient form e.g. orally)
(3) That the words referred to him (plaintiff) and
(4) That the person(s) to whom it was published was not entitled or privileged to receive the publication.” See the case of Akahie v. Ochulor (2015) LPELR ? 24552 (CA); Emmanuel Bekee & Ors v. Friday Ebom Bakee (2012) LPELR ? 21770 CA. See also Skye Bank Plc v. Akinpelu (2010) 9 NWLR (Pt.1198) 179, where the Supreme Court said:
?The law is trite that to succeed in an action of libel the plaintiff must prove 3 fundamental elements of defamation constructively:
(1) That there is the publication of the material complained of by the defendant;
(2) That the publication refers to no other person but the plaintiff conclusively;
(3) That the publication is defamatory of the plaintiff,?
In the case of Asaa v. Ojah (2015) LPELR 24278 CA, this Court held:

the defamatory words must have been published to a 3rd party, who, by law, was not entitled or privileged to hear/receive the offending words/writing, the same being damaging to the reputation of the plaintiff. See Daura v. Danhauwa (2011) All FWLR (Pt.558) 991; Mamman v. Salahudeen (2006) All FWLR (Pt.298) 469; Independent Newspapers Ltd vs. Idiong (2012) All WLR (Pt.647) 677. Iloabachie v. Ilogbachie (2005) 13 NWLR (Pt.943) 695.
See also Onu v. Agbese (1985) NWLR (Pt.4) 704; (1985) LPELR ? 2698 (SC): The law is not trite that for a plaintiff to succeed in an action of defamation he must not only prove that the defendant published the defamatory words, he must identify himself as the person defamed?

I do not see how, the Respondent can claim that the words complained of in the letter referred to him, personally, even if the same were adjudged defamatory of the members of the Care-taker Committee and was not a privileged communication to the Eze of the Town Union and its members (which is not conceded).

I too allow the appeal and set aside the decision of the trial Court. I abide by the consequential order in the

lead judgment.

Appearances

Prince Chinedu Odoemena Esq.For Appellant

AND

Chief Evaristus D. EgbebuFor Respondent