ERHIEKEVWE v. URHOBO TIMES PRESS LTD & ORS (2021)

ERHIEKEVWE v. URHOBO TIMES PRESS LTD & ORS

(2021)LCN/15121(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Wednesday, March 17, 2021

CA/AS/538/2017

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

HRH EDWARD IGHO ETADAFERUA ERHIEKEVWE (The Ovie Of Igjerhe Kingdom) APPELANT(S)

And

URHOBO TIMES PRESS LTD 2. SHEDRACK ONITSHA (Editor, Urhobo Times Press Ltd.) 3. OMAFUME AMURUN (News Reporter) RESPONDENT(S)

RATIO

PURPOSE OF THE LAW OF DEFAMATION

The law of defamation is that aspect of private law that seeks to protect reputations, either of the person as a natural or juristic person. Thus, a person may be a natural person or an office or institution and the law recognises and protects the enjoyment of such reputation and good will such that it may be entitled to and which it enjoys by ensuring the protection and recognition of such rights. The violation thereof, without justification may be sanctioned in damages and the award of such equitable reliefs such as injunction, prohibition etc. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

BURDEN PLACED ON A CLAIMANT TO SUCCEED IN A CLAIM OF LIBEL

To succeed in a claim of libel, the claimant must prove that he has been discredited by the imputation in the alleged written statement but without justification. Before any consideration of Defence the Court must satisfy itself that the Defendant published in a permanent form, a statement: b. That the statement referred to him; c. That the statement was defamatory of him in that: (i) It lowered him in the estimation of right thinking members of the society; or (ii) It exposed him to hatred, ridicule or contempt or (iii) It injured his reputation in his office, trade or profession; or (iv) It injured his financial credit. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

WHETHER FOR AN ACTION IN LIBEL TO SUCCEED, THE TESTIMONY OF ONE PERSON TENDERING A PUBLICATION IS SUFFICIENT EVIDENCE OF ITS PUBLICATION

In Gatley on Libel and Slander, 7th Edition paragraph 1198, the learned Author states thus: “A libel does not require publication to more than one person.” That simply means that the testimony of one person tendering a publication is sufficient evidence of its publication. Indeed, paragraph 1199 is to the effect that “the sale of a book containing a libel by a servant of the Defendant at his shop is prima facie evidence of a publication by the Defendant.” Further, a libel in a Newspaper is prima facie evidence of a publication by the proprietor, editor printer and publisher and any person who sells or distributes the paper. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

MEANING OF LIBEL

Libel, being the publication of false and disparaging matter against a person to a third party, see SKETCH PUBLISHING CO. LTD. VS. AJA GBEMOKEFERI (1989) 1 NWLR (PT. 100) 678 per Belgore J.S.C. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

WHETHER A TRUE AND FACTUAL STATEMENT CAN CONSTITUTE LIBEL

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This an Appeal against the dismissal of the Plaintiff/Appellant’s claim for N100,000 general damages for libel published by the Respondents in their National Newspaper called “Urhobo Times” of November 29th Vol. 2. 184 and injunctive orders.

It was began by a writ of summons and statement of claim at the High Court of Justice, Delta State before Kwame O. Okpu, J. at the Oghara judicial Division.
The claimant testified and tendered the Newspaper containing the libel; the alleged libel and print out of it in the internet.

Three witnesses were called and who testified that they read the libel and identified the Newspaper publication and the internet publication of it on the defendants’ world-wide website.

The Defendants filed their joint Statement of Defence wherein they pleaded justification, fair comment and after admitting the publication of the Newspaper.
They did not call any witness nor gave any evidence impugning the claim.

After Cross-examination, the parties filed their respective final addresses which they adopted and the Defendants urged that the case be dismissed on the ground that the Plaintiff had not proved publication.
The trial Court agreed with the view of the Defendants and entered judgment dismissing the claim.

Aggrieved, the Appellant by his Amended Notice of Appeal dated 1st February, 2021 and filed on 2nd February, 2021 but deemed filed on 11th February, 2021 by leave of Court raised the three Ground of Appeal thus:
GROUND ONE (1)
The judgment of the Honourable Trial Court is against the weight of evidence.
GROUND TWO (2)
The learned trial Judge erred in law when he held that the libel complained of was not published.
Particulars of Error
(a) The libelous statement complained of was published in the widely read Urhobo Time Newspaper of November, 2012. Vol. 2 184. Titled “Jesse Crisis: The untold story” “Ovie romance with Ghana-Burger, SEPLAT cost him his palace”.
(b) The libel was also published by the 1st Defendant on their website www.urhobotimes.com with a Worldwide coverage and readership.
GROUNDS THREE (3)
The learned trial Judge erred in law when he failed to properly

evaluate the evidence of witnesses.
Particulars of error
(a) The CW1 bought and read the Urhobo Times Newspaper in Lagos on the 24th November, 2012.
(b) The CW1 having bought the said libelous publication was disgusted and disappointed over the story and that has lowered the Claimant in his thinking.

Upon the transmission of the Record of Appeal and the filing and exchange of their respective Brief of Argument to wit; the Appellants Brief filed on 12th December, 2017 and the Respondents Brief filed 8th January, 2018, the Appellant filed an Appellant’s Reply Brief of Argument on 5th February, 2021. It is a Reply to the Respondents’ preliminary objection as raised in the Respondents’ Brief of Argument.

Raising his sole issue “from these 3 original grounds of Appeal”, the Appellant’s learned counsel donates the issue thus:
“Did the Appellant not sufficiently plead and prove against the Defendants/Respondents libel published in their Newspaper called the Urhobo Times of 29th November, 2012 Vol. 2 No. 184 and their website of www.urhobotimes.com to entitle him to judgment in his favour in the circumstances of this case? (Ground 1, 2 and 3).

At the hearing, the briefs were adopted by the respective counsel.
For the Appellant, it was argued that there was sufficient pleadings of material facts which constituted the offensive words in the Respondents’ Newspaper as published. That the words were reproduced in the writ of summons and statement of claim; they were pleaded as published in the Respondents’ website www.urhobotimes.com which version was read, printed and tendered and admitted in evidence as Exhibit ‘E’ through CW4 Eric Osemwengle; learned counsel submitted that in compliance with Order 15 Rules 2(1) (4) and Rule 4 that material facts be pleaded the material facts being the alleged words in the libel suit had been pleaded.

OKAFOR VS. IKEANYI & ORS (1979) 3 & 4 SC 99 AT 104 to the effect that what was required was the identification of the Newspaper in the pleadings or the publication or Article setting forth the whole or material portion or part of same complained of-support and reliance was placed on Gatley on libel and slander (1st edn.) at para.984 thus:

“If the Plaintiff is suing in respect of certain libelous passages in an article or letter, it is sufficient to set out the libelous passages only, provided their meaning be clear and distinct.”

The learned counsel submitted that there was the adequacy of pleadings of the facts of libel and the trial Court was wrong in finding to the contrary.

Counsel contends that there was publication contrary to the view point of the learned trial Judge that there was none and upon reliance on the cases of OMO-AGEGE V. OGHOJAFOR & ORS. (2011) 3 NWLR PT. 1234; GIWA V. AJAYI (1993) 5 NWLR (PT. 294) 423; ANATA V. SANUSI (2001) 11 NWLR (PT. 725) 542 and AJAKAIYE V. OKANDEJI (1972) 1 SC 92 as made.

It was submitted that the libelous words were testified to by the evidence in chief orally adopting the written statement on oath of the claimant and which was not cross-examined. That it proved as publication to various persons (third parties) and its defamatory nature. That this proof was not based on pleadings but upon evidence.

The learned counsel argued that the evidence led without any cross-examination thereon stood as unchallenged and proved. That the Court was entitled to

act on the unchallenged evidence.OMOREGBE V. LAWANI (1980) 3-4 SC 108 and ADEYEMI V. BAMIDELE (1968) ALL NLR 31 AT 36 relied upon.

That 2nd, 3rd and 4th claimants’ witnesses were third parties and paragraphs 2 and 4 of the 4th (CW4) witness statement on oath and Exhibit ‘E’ were proofs of the content of the publication and the third parties.

That there was indeed publication as defined by the Supreme Court inNSIRIM V. NSIRIM (1990) 3 NWLR (PT. 138) 286 AT 297-298.
That publication pleaded and proved in the mode of Newspaper publication and internet or Electronic publication existed. That publication had been made to third parties is on the facts by evidence led. That even inferentially, it was proved that publication to third parties had been made.

It was argued that the words published relate\refer to and connect the claimant with the publication by referring to him by name, position, office and business. That he was named by his burnt palace. That the words were both ordinarily libelous and even by innuendo. That the placing of the photograph of the claimant and the publication alongside the pictures of criminals in

chain was one portraying the claimant as unworthy of his position as the leader (Ovie) of his people. The evidence of CW2 – a parlance chief is that he was disappointed and disgusted on the publication that he pulled a phone call to the claimant. That corroborated the claimants’ Evidence of receiving distress calls from the public on the publication, Exhibit ‘B’.

The learned counsel relied on Gatley on Libel and Slander, 7th Edition and paragraph 1198 thereof and also submitted that in this civil case the proof of publication was not one to be beyond reasonable doubt.

On the whole, we have been urged to allow the appeal and to set aside the decision of the trial Court as having occasioned grave injustice to the claimant, who had proved his case.

Ukusare, Esq. for the Respondents had by the Respondents’ Brief of Argument Deemed filed on 20th January, 2021 and adopted at the hearing on 11th February, 2021 raised a preliminary objection. The Respondents had filed a notice of preliminary objection on 8th January, 2018 contending thus:

NOTICE OF PRELIMINARY OBJECTION
ORDER 10 RULE 1 OF THE COURT OF APPEAL RULES, 2016
TAKE NOTICE that at the hearing of this appeal, the respondent shall apply to their lordships to DISMISS this appeal.
TAKE FURTHER NOTICE that the grounds upon which the respondents rely as follows:
1. The Appeal is deemed abandoned in that no issue(s) was/were formulated from the three (3) grounds of appeal raised in the Notice of Appeal at pages 157-158 of the Record of Appeal.
2. The sole issue formulated for determination and canvassed in the Appellant’s Brief is not distilled from any of the three (3) Grounds of Appeal in the Notice of Appeal at pages 157-158 of the Record of Appeal.
3. An issue for determination must flow from and be related to the ground of appeal. Where it is not so done, the issue must be discountenanced by the Court, together with the arguments there under.

Arguing the said preliminary objection at pages 2-3 of the Respondents’ Brief of Argument, Respondent argues that the objection was brought under Order 10 Rule 1 of the Court of Appeal Rules 2016 for the determination of the competence of the sole issue vis-a-vis the 3 Grounds of Appeal filed. That none of the Grounds of

Appeal can support the issue distilled and that the issue does not flow from any of the Grounds of Appeal.
AHMADDAMZOMO VS. MUSA (2014) ALL FWLR (PT. 743) 1866 AT 1875.

Analysing the 3 Grounds of Appeal distinctly, and as to the purport of each of the grounds of Appeal, it was submitted that none of them could support the lone issue formulated and that the issue was, therefore, “formulated from the blues and the three (3) Grounds of Appeal were deemed abandoned. Counsel contended that no issue was distilled from the abandoned Grounds and the Grounds stood abandoned.
OKEREKE VS UMAHI (2016) ALL FWLR (PT. 833) 1902 AT 1017 (PAR. C) was relied upon for this position of the law. It was therefore, submitted that an abandoned ground(s) culminated into an abandoned appeal, which was liable to be dismissed under Order 17 Rule 18 of the Court of Appeal Rules. That the appeal should be dismissed.

On the merit of the appeal, it was argued that the Appellant had failed to sufficiently plead the alleged Defamatory words and had also neglected to lead evidence to establish the tort of defamation in libel.

The learned counsel referring to ZENITH PLASTICS LTD. VS. SAMOTECH LTD. (2008) ALL FWLR (PT. 427) 176 AT 202 PARAS C-D; D. D. G. D. PHARMACEUTICALS LTD. V. TIMES NEWSPAPERS LTD. (1973) 1QB 21; OKAFOR V. IKEANYI (1979) NSCC 44 said it is only in paragraph 1 of the statement of claim (at pages 4-6 of the Record of Appeal) that the Appellant purportedly quoted the alleged defamatory article/story.

That placed side by side Exhibit ‘B’, page 5 thereof the averment in paragraph 1 of the statement of claim does not amount to a verbatim statement of the story as published.
The learned counsel also submitted that aside the pleadings, the words were not in their ordinary and natural meaning defamatory.
That it is not every statement or publication which is made and which annoys a person that is defamatory. It is not every vulgar statement, mere abuse or insult which is actionable.
Counsel submitted that whether words were defamatory, was a question of fact.

Counsel concedes that to prove those facts, witnesses must be called by the Appellant to give evidence of the effect the words published have or had on him. ZENITH PLASTICS LTD. V. SAMOTECH LTD. (supra) relied on and that none of the witnesses called by the Appellant gave evidence to that effect.

Counsel submitted that Chief Samuel Otojareri, one of Appellant’s witnesses said he bought the Urhobo Times of November, 29th 2012, that the vendor was rushed by many potential buyers while others were reading the story but that, he did not say he himself read the story. That he called the Appellant and expressed his disgust and disappointment over the story. That he did not say that he was disgusted with the claimant.
That it did not mean that the witness held the Appellant in ridicule, scorn and/or in lower esteem.

That he was disgusted by the story is to say that he was annoyed as a result of the story not that he was annoyed with the Appellant. That the reasons and circumstance of being disgusted and its effect was not testified to. On the whole, the Respondent contended that no libel had been established and that there was, after all, no competent appeal.

In reply to the preliminary objection, Chief A.P.A. Ogefere Esq. for the Appellant, had by his Reply Brief of Argument filed on 5th February, 2021 and adopted at the hearing on 11th February,

2021, conceded the principle of law that where no Ground of Appeal exists in support of an issue, the said ground of appeal is deemed abandoned; but contends however, that the issue distilled emanates from the 3 grounds of Appeal raised.

He added that a single issue may be distilled from more than one ground of appeal as herein; he relies onAJA VS. OKORO (1991) 7 NWLR PT 360 AT 273; MADAGWA VS STATE (1988) 5 NWLR PT. 92, 60; AGBETOBA V. LAGOS STATE EXECUTIVE COUNCIL(1991) 4 NWLR (PT. 188) 664 and STIRLING CIVIL ENGINEERING NIG. LTD V. YAHAYA (2011) NWLR (PT. 4) 186 AT 202 for the view.

The counsel reproducing each of the Grounds of Appeal and relating them to the trial Judge’s findings and submitted that the issue was clearly supported by all the 3 Grounds of Appeal and the appeal had a valid issue raised from the 3 Grounds of Appeal; and the Appeal was not an “issueless” Appeal and, therefore, not abandoned as argued by the Respondents.

RESOLUTION OF THE PRELIMINARY OBJECTION
I have no hesitation in finding against the preliminary objection, as it is baseless.
The issue raised is based on whether or not libel had

been proved at the trial Court. Even upon the Ground 3 of the Notice of Appeal alone, the issue is competent and validates the existence of the ground 3. Indeed, ground 2 that questions if there was publication of a Defamation in this case arising from the evidence led was sufficiently covered by the issue raised, to wit; whether in law there was no publication even on the documents tendered alone? This issue aptly arose from the Ground 2, as publication has a technical meaning in law and can be satisfied as proved by the mere content of a document been shown to exist in circumstances that communication of same is deemed, in law; so long as its content can be adjudged to be defamatory. Its existence in circumstances that knowledge of it can be imputed to a third party publication will be deemed in law.
The preliminary objection is without merit. It is dismissed.

RESOLUTION OF THE APPEAL
The law of defamation is that aspect of private law that seeks to protect reputations, either of the person as a natural or juristic person. Thus, a person may be a natural person or an office or institution and the law recognises and protects the enjoyment of

such reputation and good will such that it may be entitled to and which it enjoys by ensuring the protection and recognition of such rights. The violation thereof, without justification may be sanctioned in damages and the award of such equitable reliefs such as injunction, prohibition etc.

To succeed in a claim of libel, the claimant must prove that he has been discredited by the imputation in the alleged written statement but without justification. Before any consideration of Defence the Court must satisfy itself that the Defendant published in a permanent form, a statement:
b. That the statement referred to him;
c. That the statement was defamatory of him in that:
(i) It lowered him in the estimation of right thinking members of the society; or
(ii) It exposed him to hatred, ridicule or contempt or
(iii) It injured his reputation in his office, trade or profession; or
(iv) It injured his financial credit.

The Appellant herein, had proved publication of the words alleged to be Defamatory. The article as contained in the website of the Defendant/Respondent www.urhobotimes.com. the fact of the printing of the words or statement concerning the Appellant and his office alone constitutes publication in law.

In Gatley on Libel and Slander, 7th Edition paragraph 1198, the learned Author states thus:
“A libel does not require publication to more than one person.”
That simply means that the testimony of one person tendering a publication is sufficient evidence of its publication.
Indeed, paragraph 1199 is to the effect that “the sale of a book containing a libel by a servant of the Defendant at his shop is prima facie evidence of a publication by the Defendant.”
Further, a libel in a Newspaper is prima facie evidence of a publication by the proprietor, editor printer and publisher and any person who sells or distributes the paper.
There was evidence at the trial Court of the Newspaper containing the alleged statement on the Appellant and his office, a Royal stool; there was also the further documentary evidence of the print out from the Respondents’ website www.urhobotimes.com. i.e., site of the News item pertaining the Appellant herein.

The News items remained posted on the website and was accessible to all and sundry that could read. There was no obligation to call any reader of the website as publication was complete in law and a worldwide readership was guaranteed.
In the same manner the hardcopies of the Newspaper was out and evidence led to its further publication or dissemination. The claimant/Appellant testified in chief and was not cross-examined. The evidence was not faulted. His evidence on the crucial issue of the publication as made was one that the Court may deem as established.
OMOREGBE VS LAWANI(1980) 3-4 SC 108, ADEYEMI V. BAMIDELE (1968) ALL NLR 31 AT 36 where unchallenged evidence was disregarded by the trial Court but the apex Court held allowing the appeal, that unchallenged evidence not disbelieved by the Court should be acted upon.
The evidence of the claimant and CW1 was obvious on the publication made. The CW4 was a third party and who read the story. There was, therefore, publication to a third party even if it is contended (which I do not concede) that Exhibit E was not sufficient.
NSIRIM V. NSIRIM (1990) 3 NWLR (PT. 138) 286 AT 297-298 on publication to a third party was satisfied.

The two modes of publication, i.e., Newspaper and Internet or electronic publication were pleaded and proved.
As I had stated earlier, the inference of publication to third parties was the natural thing to expect in the circumstance. See AWONIYI V. REGISTERED TRUSTEES OF ARMORC (1994) 7 NWLR PT. 355, 154.

The next thing to prove is whether the words were ordinarily or by innuendo referable to the Appellant and offensive in the manner that constitutes libels.
There is no ambiguity that the publication referred the Appellant in his name, position, office and business. He was named by his burnt palace.
The Exhibit B with the bold lines with the picture of arrested criminals in chains depicts the Appellant as being in the class of criminals and who should be so arrested and treated as such.
The innuendo suggests that the Appellant is not fit for the exalted position of a king (the Ovie of his kingdom). The placing of his picture beside pictures of criminals shows or portrays him as dishonourable and as shown in expatiation in the story and comments therein by the Respondents. The evidence of CW2, a palace chief of the Appellant who, ordinarily must be

loyal and would hold the Appellant, the king in whose domain and palace or council he serves as a title holder in high esteem, is obvious; and speaks for itself. That he was disgusted and annoyed, clearly shows that his estimation of the Appellant fell. He was irritated and disappointed as his perception and view on the integrity of the chief had been denigrated. The respect and honour due and accorded had waned in his sight in the face of the publication which he saw and testified to.
He could not have felt disgusted and annoyed without reading the publication. At least he was not cross-examined on that. He – CW2 did not give the hearsay evidence of the content of Exhibit ‘B’. The ordinary and only reasonable inference to draw when a witness talks or testifies with reference to a document he tenders or that has been tendered is that he had read same.
This CW2, therefore, corroborated the evidence of the claimant/Appellant that he received distress calls from the public on the publication.
The publication and its effect was not one that merely touched on the ego or self pride of the claimant; to depict a man – in Royalty

and leadership position as unfit and as romancing with criminals and working against the economic well-being of his kingdom and people and promoting private or personal aggrandizement and interest and in collaboration with political interest groups and criminals cannot but be the gross act of libel, if it cannot be justified.
The Appellant’s learned counsel has aptly, in his Appellants Brief of Argument relied on the Shorter Oxford English Dictionary page 558, thereof for the definition of the words ‘disappointment’ as used by the CW2 when he read the publication in issue. The CW2 was in a state of disappointment.
That simply means that his hitherto held views and thoughts and estimation of the Appellant was shattered. He was forced by the episode to doubt, recoil and to hold the opposite view. That is to say, he was disappointed by the Appellant in the face of the publication.
That the CW2 also stated in his evidence that he was disgusted, shows the aptness of the reference to paragraph 567 of the Shorter Oxford English Dictionary as made by the Appellant’s counsel.

Disgust is defined as “strong repugnance excited by that which is loathsome or offensive, profound intuitive dissatisfaction; that which cause repugnance and annoyance.”
How else can the words as printed be described to pigeon hole them to the tort of libel in their effect on the Appellant?
There was no discrediting evidence against the Appellant’s (CW1) that he was not right thinking member of the society and that the publication did not have that effect on right thinking members of the society; there was no cross-examination of the CW2 to show that he was not a right thinking member of the society or that he did not hold the Appellant in any high esteem and, therefore, could not have been disappointed or be disgusted.
There was no evidence showing the contrary that the publication did not expose the Appellant to ridicule, hatred or contempt or injured his reputation as there was no justification pleaded and proved.
The Respondents would appear to anchor on the defence of privilege of journalist; however, the defence of privilege can only be justified where there is no malice shown.

The juxtaposition of the pictures of the Appellant with his burning palace alongside the pictures of arrested criminals in chains and the content of the publication given comments and belief in the veracity of the claims on what the Defendant/ Respondents said were rumors (they being clever by half in what i will call “tongue in-the-cheek Defence”, with due respect.)
The admixture of poison with the meek lamp milk does not give out the server thereof as an innocent steward to a hungry public desiring information. It does not also constitute an alibi in favour of any claim to performance of constitutional duty or right to disseminate information.
It is not a privilege exercised. It was an abuse thereof; the language of the law must remain the same in times of war and in peace; in furtherance of the Rule of Law. No extenuating circumstances had been shown to take out this palpably libelous publication from its cubicle. No man may be oppressed by the privilege of the pen, for it will be discriminatory and unconstitutional.
Lord Penzance had said it all, as Gartley on Libel and Slander referred by both parties have clearly reiterated.

The learned counsel for the Appellant has aptly x-rayed the facts of cases of ANATE VS. SANUSI & 2 ORS. (2001) 1 NWLR (PT. 725) 542 and applied correctly to his submission that there was proof of the publication of libel where a third party had read or had been communicated, the said libelous words. The testimony of CW2 and CW4 were clear on the rush to read and purchase of the publication i.e Newspaper such that they read same. That CW2 rushed an unscheduled call on the Appellant, tells of the precipitate anxiety and reaction to the said publication on account of its content and resultant effect on the witnesses, particularly CW2, who read the publication.
ANATE VS. SANUSI & 2 ORS. (supra) was misapplied by the trial Court and its decision was not in consonance with that decision clearly made applicable by the facts established.
The testimony of the plaintiff/Appellant’s witnesses on Exhibit ‘A’ which is the Newspaper publication, was not a hearsay evidence. He testified of what he saw. i.e., that he saw people reading the Exhibit ‘A’ and scrambling or struggling for copies at Yaba, in Lagos. The opinion of both the literate and illiterate members of the public who could either

read or even see the juxtaposed pictures of the criminals arrested and in chains with the burning palace and reference to the Appellant, was such that was capable of lowering the estimation of the Appellant.
Libel, being the publication of false and disparaging matter against a person to a third party, see SKETCH PUBLISHING CO. LTD. VS. AJA GBEMOKEFERI (1989) 1 NWLR (PT. 100) 678 per Belgore J.S.C., I am not unaware of the position of the law that no civil action for defamation will be maintained unless the words complained of have more than their ordinary meaning and the onus will be on the plaintiff to prove the extra ordinary meaning of the words used.
The words in the Exhibits tendered were not only published to CW2 and CW4 but indeed to the whole world as in the website of the Respondents testified to.
The Respondents did not deny the publication. They did not say that it was not true. It cannot therefore be said to be true as the burden of proof in rebuttal is on the Respondent, once the allegations are denied; since it is the Respondent that had asserted the position.

Indeed where a Defamatory statement is proved to be false and malicious, the Defendant cannot be entitled to the defence of privilege which exists when the publication is to a person entitled to it; for instance, publication to a staff by the Employer in the course of duty. Where it is a publication not in anticipation of the publisher, there can be no liability see POWELL VS GELSTON(1916) 2KB615. If the content of the publication were not libelous, its publication to a third party would have been of no moment. A true and factual statement does not constitute libel. The content of the publication was plain and did not suffer any equivocation that the Appellant was of low integrity and of a character and association with disreputable persons and an arch enemy of his people and their economic and social wellbeing.
This case, on the facts and circumstances, was distinguishable from the case of DR. E. J. ESENOWO VS. DR. I. UKPONG & ANOR (1999) LPELR-1166 SC but the principles of law enunciated therein the case supra are applicable and against the Respondent herein.
The trial Court, no doubt with respect did not appreciate the applicability of the cases of AMATE VS. SANUSI & 2 ORS.(2001) 11 NWLR PT. 725 AT

542 (supra); THE QUEEN VS. AMALGAMATED PRESS OF NIGERIA & ANOR(1962) WNLR 272 AT 272 aptly cited but applied in default.
Indeed, there was no failure of proof or any weakness in the plaintiff/Appellant’s case to merit any decision in favour of the Defendant/Respondent who could not rebut the case on the balance of probability clearly established by the Appellant. “The cover story and the Jesse Crisis: The untold story” as published, to me portrays not a news item per se but News laced with the strong opinion of the publishers which they have not justified by any evidence led. Even the palace chief said to have been interviewed was not called. I do not see the publication as privileged or based on justification or statement of facts. The sub titles “Ovie’s romance with Ghana-Burger, Seplar cost him his palace” is clear on the strong belief and conviction of the publishers of the Article in the reasons for the crisis.
The Appellant had amended its statement of claim to incorporate the offensive publication.

Being unjustified, as the evidence for appropriating same and justifying same was not led, the malice therein was presumed.
I find merit in this appeal.

It is allowed by me. Accordingly, the decision of the High Court of Justice, Delta State per K. O. Okpu, J. sitting at the Oghara Judicial Division holden at Oghara and delivered on January, 2017 in Suit No. HCH/7/2013 between the parties herein is set aside.

In its place, I enter judgment for the Appellant, per his claims at the trial Court being what the Court below ought to have done.
Appeal is allowed.
Costs: I award a cost of N300,000 (three hundred thousand naira only) in favour of the Appellant and against the Respondents jointly and severally.

JOSEPH EYO EKANEM, J.C.A.: I had the privilege of reading in advance the lead judgment of my learned brother, MOHAMMED AMBI-USI DANJUMA. J.C.A. which has just been delivered. I agree with the reasoning and conclusion therein which I adopt as mine in allowing the appeal and setting aside the decision of the trial Court. I abide by the consequential orders made in the lead judgment.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read in advance the lead Judgment of my learned brother,

MOHAMMED AMBI-USI DANJUMA, J.C.A., and I am in agreement with the Judgment, and find that the reasoning and conclusions therein have covered the field. I have nothing more to add. I join my learned brother in allowing this appeal and judgment of lower Court is set aside. The Appeal is allowed.

Appearances:

Chief A.P.A. Ogefere, Esq., A. P. A. Ogefere & Co. For Appellant(s)

E. Okusare Esq., M. E. Okusare & Associates For Respondent(s)