G. CAPPA LIMITED v. DAILY TIMES OF NIGERIA LIMITED (2013)

G. CAPPA LIMITED v. DAILY TIMES OF NIGERIA LIMITED

(2013)LCN/6469(CA)

In The Court of Appeal of Nigeria

On Thursday, the 3rd day of October, 2013

CA/L/14/2002

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

Between

G. CAPPA LIMITED Appellant(s)

AND

DAILY TIMES OF NIGERIA LIMITED Respondent(s)

RATIO

CRITERIA THAT GOVERN THE ADMISSIBILITY OF A DOCUMENT

DEFINITION OF AN “EDITORIAL”

An Editorial is – “an article in a newspaper or magazine that expresses the opinion of its editor or publisher” – see Encarta Dictionaries. A Privilege “grants someone the legal freedom to do or not to do a given act; it immunizes conduct that under ordinary circumstances would subject the actor to liability”, see Black’s Law Dictionary, 9th Ed. Editorial Privilege is also defined therein as “a publisher’s protection against defamation lawsuits when the publication makes fair comment on actions of public officials in matters of public concern”. PER AUGIE, J.C.A.

THE BEST TIME TO OBJECT TO THE ADMISSIBILITY OF A DOCUMENT

The best time to object to the admissibility of a document is at the trial – see Fatubi v. Olanloye (2004) 12 NWLR (Pt. 887) 229 SC, wherein it was observed –
“- – The document – – is admissible and was in fact admitted – – without objection. It is therefore late for the Respondent to raise objection to its admissibility now”.
In other words, it is better to object to the admissibility of a document when it is being tendered because it will be too late to complain on appeal – see Ibori V. Agbi & Ors (2004) 6 NWLR (Pt. 868) 78 at 136, where Uwais, CJN, observed-
“As to the admissibility of Exhibit ‘A’ before the trial court, the Appellant heard to complain. All the parties before the learned trial judge including the Appellant agreed, by consent, to address the Court on the document. The implication of this is that all the parties were at one that the Exhibit was admissible. A document may be inadmissible but the parties in the case can consent to its being admitted. Once this has happened, none of the parties will be allowed to resile from such an agreement. They are estopped to do so”. PER AUGIE, J.C.A.

ADMISSIBILITY OF A PUBLIC DOCUMENT

In this case, the Appellant complained especially about Exhibit D4, which is clearly a public document, and it was properly admitted because it is settled that any person, who has a certified true copy of a public document in his possession, can tender it – see Agagu v. Dawodu (1990) 7 NWLR (Pt. 160) 56.
And Anatogu V. H.R.H. Iteka II (supra) where Uwais, JSC (as he then was) said –
“The documents could only be admitted in evidence if they satisfied the provisions of Section 90(1) or Section 111 of the Evidence Act – – The latter Section allows for the certified true copies of the documents to be produced, but even then, what were sought to be tendered in this case were not certified true copies but the original public documents. Had the procedure under Section 110 and 111 been adhered to by the Respondents, the certified true copies of the documents would automatically become admitted in evidence by the trial Judge without PW1 giving evidence of them. In other words, the documents would have been directly admissible without any foundation being laid”.

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): The Respondent published an Editorial in its Newspaper of 17th February, 1982 captioned “Send Cappa Packing”. Offended by the publication, the Appellant instituted an action at the High Court of Lagos State, wherein it claimed –

“N1,000,000.00 damages for injurious Falsehood maliciously published by the Defendants [the Respondent] and calculated to damage the plaintiff [Appellant’s] business as Building and Civil Engineering Contractors”.

Upon being served with the relevant Court processes, the Respondent entered appearance and filed a Statement of Defence that was amended during trial. The Appellant did not call any witness, but Chief F.R.A. Williams (SAN) applied to tender the publication from the Bar. Mr. Kehinde Sofola (SAN) objected, and in overruling his objection, the learned trial Judge, Adeyinka, J., held that –

“- – A newspaper just like a gazette can be tendered from the bar. The fact that other party has no opportunity to cross-examine on the newspaper goes to weight. The objection is overruled. The Daily Times Newspaper on 17th February, 1988 is admitted in evidence as EXHIBIT P1”.
The said Exhibit P1 reads as follows-

“Within the last 16 months, 14 Nigerians have died and 29 others injured as a result of the collapse of two building at the Barnawa Federal Housing Estates, Kaduna. What is most painful about this uncalled for deaths and wanton destruction of property is the fact that the houses were built by G. Cappa, a construction company that has worked in Nigeria for many years. If experience is a criterion for excellence then one would have expected durable houses from the company, but regrettably, they capitalized on inadequate supervision by the Federal Housing Authority to do a shoddy job. We see this as a complete unwillingness on the part of the company to contribute meaningfully to our development efforts. It will be preposterous to believe that G. Cappa is incapable of doing a decent job if it wants to. But its performance at the Barnawa Estate creates the impressions that the company is all out to exploit this nation. There is no gainsaying the fact that G. Cappa got an insignificant fraction of the amount and maximize profit though it was supposed to be aware through its building experts that the houses were defective. This deliberate action to do second rate work after receiving huge amount from the government is one of the things that has slowed down the development of this country. That is why more often than not our government award contracts for the reconstruction of roads, houses and other projects which were completed few years earlier, thereby wasting money unnecessarily on the same programme instead of executing new ones. We believe that G. Cappa and its ilk purposely do these poor jobs with the hope that the same project will be rewarded to them in a few years’ time at higher prices because of the world-wide galloping inflation. As a country that is in a hurry to develop we cannot allow unscrupulous companies like G. Cappa to continue to exploit us. The Kaduna State Government probably realized this hence it black-listed G. Cappa soon after the first incident of September, 23, 1980 which claimed six lives. Unfortunately, other Governments did not follow the prudent reprisal of the Kaduna State Authorities. The life of every Nigerian is precious. We cannot, therefore allow G. Cappa to continue not only to destroy lives and property, but also to hinder National progress. We, therefore, want the Federal Government to blacklist the company immediately. There is no need for probes that will not benefit this country. The collapse of the two building within this short period is enough evidence of either incompetence or exploitation”.

After tendering Exhibit P1, Chief F.R.A. Williams (SAN) said – “I close my case”.

The Respondent called three witnesses and tendered the following Exhibits –
– Exhibit D1 – A story captioned “Eight killed as Building collapses” at page 32 of the New Nigerian Newspaper of Monday February 15 1982;
– Exhibit D2 – Page 1 of the same New Nigerian Newspaper of 15th February, 1982, containing an Editorial captioned “One too many”;
– Exhibit D3 – A photocopy of the Daily Times issue of 17th February 1982; and
– Exhibit D4 – A Certified True Copy of the Kaduna State Government White paper on the Report of the Certified True Copy of Enquiry on the BARNAWA Flat Disaster.
The Respondent did not deny Exhibit P1 but it offered a defence of privilege, justification and fair comment. Thereafter, learned senior counsel addressed the Court, and in his Judgment delivered on 30/11/90, Adeyinka, J. concluded-

“The defence of privilege, justification and fair comment having succeeded, they are complete answers to the Plaintiff’s claim. The issue of damages and the Plaintiff’s claim are thus defeated. This action fails and is hereby dismissed”.

Aggrieved by the decision, the Appellant appealed to this Court with a Notice of Appeal containing 6 Grounds of Appeal, and the Appellant distilled one Issue therefrom in its Brief of Argument prepared by M. B. Idris Kutigi, Esq.; that is –
“Whether the learned trial Judge was right in dismissing the Plaintiff’s claim for the various reasons given in his judgment”.

The Respondent, however, submitted in its brief prepared by B. C. Igwillo, Esq., that the sole issue that calls for determination in this appeal is as follows –
“Whether the learned trial Judge was right in dismissing the Plaintiff’s claim when the evidence adduced at the trial supported the Defendant’s plea of privilege, justification and fair comment.”

From all indications, both parties formulated the same issue, and whether it is “for the various reasons given in his Judgment” or that the evidence supported the Respondent’s plea of privilege, justification and fair comment, the issue is simply whether the lower Court was right to dismiss the Appellant’s claim.

To appreciate their various arguments, we will have to look at the facts.
The Respondent called John Araka, one of its Journalists, who testified as DW1 that the said editorial was based on the story and Editorial in Exhibits D1 & D2. He said the Newspaper carried out investigations, and discovered that –

“The buildings, the subject matter of Exhibits P1, D1 and D2 did in fact collapse. The people in fact died as a result of the collapse of the building. Those referred to in the Exhibits as having been injured were in fact injured. The Plaintiff [Appellant] was the contractor that built the building that collapsed”.
DW1 further explained as follows –
“We have no malice against the plaintiff in publishing Exhibit P1. We were serving the public interest. We had no intention to injure the Plaintiff in the way of its business. By the time we published Exhibit P1, we were convinced that it was true. Fourteen Nigerians had died as we said in the Editorial and as Nigerians we feel that life of every Nigerian is important and precious. Our motivation, therefore, was to make Government take action to prevent a re-occurrence”.
As regards a similar episode in 1980, DW1 further testified as follows –
“There was a similar collapse of building in the same estate in Kaduna. G. Cappa Ltd. constructed those buildings that collapsed in 1980. The Kaduna State Government blacklisted G. Cappa because of the collapse. The Federal Government and the other State Governments did not blacklist the Plaintiff when the collapse occurred in 1980, we disseminated the information to our readers at that time…”
DW1 also testified that they have “two editions of our newspaper every day”.

Apparently, the first edition of the paper is for the North and the East, and it “leaves Lagos the day before”. The 2nd edition is for the West, Lagos, Bendel and Ondo, and it leaves Lagos “very early in the morning”. A photocopy of the 2nd Edition of the Daily Times Newspaper of 17th February 1982 was later admitted in evidence as Exhibit D3 through DW2, Olatunji Okegbola, who is a Librarian with the Respondent. DW2 also stated the difference as follows –
“I see Exhibit D3 the Editorial “SEND CAPPA PACKING” at the end thereof. It contains an Editor’s note. I see Exhibit P1. It does not contain the Editor’s note in Exhibit D3. Exhibit P1 was issued on 17th February 1982. Exhibit P1 is the 1st Edition”.

The Editor’s Note set out at page 116 of the Record by the lower Court, reads-
“After our Editorial had gone out, we observed a one inch story in the New Nigerian in which G. Cappa denied the construction of the two – storey building, which collapsed at No. 24 Zaria Road, Barnawa Kaduna. We want the government to carry out full investigation to determine the authenticity of the denial. And whoever is found responsible should be penalized.”

At this stage, the Respondent was granted leave to amend its Statement of Defence by pleading specifically the Kaduna State Government White Paper on the Report of the Commission of Inquiry on the Barnawa Flat Disaster as additional Particular of the Facts Relied Upon”. The PARTICULARS OF FACTS RELIED UPON in Paragraph 4 of the Amended Statement of Defence states that –
(a) On 15th February 1982, the “New Nigerian” published a story alleging that some 8 people were killed and 16 others were injured as a result of the collapse of some buildings constructed by G. Cappa Construction Company under the heading – “Tragedy at Barnawa again”. The story as published is as follows –
“Eight Killed as Building Collapses – Tragedy struck at the Barnawa Federal Housing estate in Kaduna in the early hours of Friday when another two-story building of six flats collapsed killing eight occupants and injuring 16 others. The incident occurred at No. 24 Zaria Road, Barnawa and was the second in the Housing estate within 17 months. The first disaster occurred on the night of September 23, 1980 when a similar two-storey of six flats collapsed killing six of the occupants and injuring 13 others. Friday’s disaster, according to an eye witness, occurred at about 4.30 a.m. when some of the occupants, mostly workers, were getting ready for work. Hospital authorities later confirmed that by 5p.m. last Saturday, eight people had died. Some of the dead occupants of the affected block included one housewife, three mole adults, two girls and a boy all of whom are yet to be identified. The affected block was constructed by G. Cappa Construction Company for the Federal Government Housing Authority. The scene of the disaster was very pathetic as women, children, sympathizers and relatives were seen waiting. Household furniture and utensils were also seen being salvaged from the debris.
A journalist, a nursing mother and her son were among the injured. Another eye witness living in the adjacent block of the affected building told the New Nigerian that he was preparing for work when he heard a thunderous splitting crack that made him run away panicking. He raised an alarm in the process to attract the attention of other tenants in other buildings. A combined team of firemen, policemen, soldiers, as well as engineers from Chiyode Chemical Engineering and Construction Co. joined in the rescue work using crane and bulldozers to remove the debris. The rescue operation which began immediately the building sank came to all those trapped in the debris were rescued. Already, tenants occupying similar houses at the Estate have started vacating their houses in large numbers and moving into the Federal “high Cost” bungalows in nearby Narayi Village. A lucky housewife rescued from the debris, Mrs. Agnes Musa – had since been admitted into the female surgical ward of Ahmadu Bello University Teaching Hospital for fractures. Another lucky tenant, Habibu Abubakar, an employee of the Kaduna State Ministry of Information, Film Unit, who dived out of the crumbling building sustained minor injuries. Mallam Ahmed Tijani also escaped unhurt. Narrating his story – Mallam Ahmed a staff of the Kaduna Co-operative bank said that he thought it was a nightmare when suddenly he saw his bed revolving while asleep. But when the bed continued to revolve, he got up and saw that the walls of the building were crackling. He quickly summoned courage, woke up his brother who was living with him, and both of them jumped through the window”.
(b) On the same day, 15th February, 1982, the said Newspaper, the “New Nigerian”, further published in respect of the said tragedy that the Kaduna Government ordered the demolition of all the blocks of flats at the Barnawa Federal Low Cost Housing estate with immediate effect.
(c) Based on the facts stated herein, the said “New Nigerian” under an Editorial headed “One Too Many” said as follows-
“The collapse of a two storey, block of flats at the Barnawa Low Cost Housing Scheme – – which has resulted in eight dead and the sixteen injured forces us once again to return to a second time such a tragic event has occurred in sixteen months, altogether causing the death of 14 people. Yes, 14 lives lost because of the greed of a few contractors and of a few conniving heartless Government Officials charged with the supervision of a project. This is simply unpardonable. Yet, if what has happened in the past are things to go by, no specific individual or corporate entities will actually get punished for this callous negligence. But perhaps, the authorities would for once disappoint a public whose fail in probes in at best very shaky. The last time the tragic incident happened G. Cappa, which was the contractor, was blacklisted by the Kaduna State Government. That was not enough. The Company should also have been made to reparations to the families of the deceased. Also, the supervisors on Government’s side should have been identified and punished. If these were done, the public was never told. This time, the Kaduna State Government has felt concerned enough to decide on a wholesome demolishing of flats. Commendable as this show of concern is, the decision is perhaps too drastic. Rather than completely demolish the flats, tests should be conducted to identify those that are unsafe. Only these need be pulled down. What is more important, however, is the issue of the continued patronage of companies who have clearly shown themselves to be cheats. All too often, a company which gets blacklisted in one part of the country moves to another to do brisk business. This kind of thing must stop. All the Governments in the Country must compare notes on this matter. Once it is clearly established that a company has committed a deliberate error in one contract, every Government owes its subjects the duty to protect them from the Company’s sharp practices”.
(d) The Defendant wrote the Editorial Opinion complained of on the basis of the facts stated in (a), (b), and (c) herein.
(e) The buildings, which collapsed in 1980 referred to herein, were constructed by the Plaintiff.
(f) Many lives were lost and several people were injured as a result of the collapse of the said buildings referred to in (e) above.
(g) The Kaduna State Government White paper on the Report of the Committee of inquiry on the Barnawa Flat Disaster.

A certified true copy of the White Paper was admitted as Exhibit D4 through Osarugue Abimbola Obaseki, a legal practitioner with Mr. Kehinde Sofola SAN. The lower Court accepted its defence and found in the Respondent’s favour. As is typical with any appeal, the Appellant picked a lot of holes in the decision of the lower court, and the Respondent summarized its arguments as follows –
1. The Appellant need not adduce evidence in support of the allegation that the words were published falsely and maliciously for the law presumes these facts in its favour;
2. If the words are defamatory, the law presumes that they are false and it is for the Defendant to plead and prove that the words are true;
3. The learned trial Judge acted under a gross misconception of the law to treat that contents of Exhibit D1, D2 and D3 and the White Paper (D4) as proof of the truth of their contents when what those Exhibits contain are not admissible for such purpose;
4. The defence of qualified privilege is available only where there exists, on the part of the Defendant, an interest or a duty to receive it;
5. The learned trial Judge in holding that the defence of fair comment succeeded considered the provisions of section 7 and 8 of the Defamation Law when those statutory provisions were not pleaded and;
6. The defence of fair comment can only succeed when the alleged facts upon which a comment is based are established.

The Respondent’s summary captures the gist of the Appellant’s arguments, and I will follow the sequence. The Appellant started with the complaint that the lower Court misunderstood the issue about false and malicious publication.
It submitted that a Plaintiff does not need to adduce evidence in support of the allegation that the words were published “falsely and maliciously” for the law presumes this fact in his favour and referred us to the 3rd Edition of
Carter-Buck on Libel and Slander, where the learned Authors explained that –
“In any action for defamation, whether it be libel or slander, the Plaintiff must prove that the matter complained of – (1) Is defamatory (Publication); (2) Refers to the Plaintiff (Identification) (3) Has been published to a third person (Publication).
The burden is upon the Plaintiff to prove these three essential ingredients and if he cannot do so his action is bound to fail. These being the only essentials to found an action for determination it follows that certain presumptions are made in favour of the Plaintiff. Two of such presumptions which are of great practical importance are that it is presumed in all actions for defamation that the matter complained of is untrue and it is presumed in all actions for libel and in those actions for slander which are said to be actionable per se, that damage has been caused to the Plaintiff. This means that the entire burden of proving that the matter complained of is true or that it has not caused the Plaintiff damage is generally on the Defendant”
Thus, the Plaintiff does not have to prove falsity or malice to establish his case; if the words are defamatory, the law presumes that they are false and it is for the Defendant to plead and prove that the words are true, citing Precedents of Pleading (Bullen & Leake & Jacobs) 13th Ed., wherein the Authors wrote –
“It was the practice to plead in the Statement of Claim that the Defendant “falsely and maliciously” published the words complained of. However, these words are unnecessary and confusing. The falsity of the words is always presumed in the Plaintiff’s favour”.
The Appellant contends that the lower Court misunderstood the issue, and as result it made erroneous findings of law that led finally to a wrong conclusion.

The Respondent conceded that a Plaintiff is not bound to prove falsity or malice because in the eyes of the law, defamation is prima facie unjustifiable, citing S.W. Miner’s Federation V. Glamorgon Local Co. (1905) A.C. 239 (250). But it submitted that when the Defendant pleads there was a lawful excuse, the Plaintiff must prove that the Defendant has abused that privilege actuated by malice, and that the lower Court understood this principle when it tasked the Appellant on the requirement of establishing that it was actuated by ill-will or improper motive or that it did not honestly believe what it wrote to be true.

In response to the Appellant’s arguments (1) and (2), the Respondent also referred us to Clark and Lindsell on Torts, 16th Ed., wherein it was stated –

“Prima Facie the publication of defamatory matter is a cause of action. The Plaintiff must in his pleading be able to set out with reasonable certainty defamatory words. He must also allege in his pleading that the imputation published is false, and it is usual, though no necessary, to allege that it is malicious; but the burden of proof of neither of these allegations lies upon him. In fact no Plaintiff was ever non-suited for failing to prove malice in the first instance, and further the law assumes in his favour the prima facie falsity of the statement in question. It is not to be assumed that anyone is of bad character, and therefore defamation of an individual is taken to be false until it is proved to be true. As for the word “malicious” it is used in a technical sense, as referring to a wrongful intention which is presumed by the law for certain purposes when a wrongful act if done without just cause or excuse, and malice in this sense is presumed by law from the fact of publication. This presumption may be rebutted by the Defendant showing some just cause or excuse for the publication, as for instance, that the occasion was one of qualified privilege. The onus is then on the plaintiff to prove the existence of malice in the popular sense, that is to say, of some improper or indirect motive under the influence of which the Defendant abused the privileged occasion”

It argued that it not only pleaded but proved the truth of the published words; that it rebutted the presumption of malice presumed by law; and that the Appellant was entitled to prove malice in the popular sense, which it did not, citing Akamagwuna v. SBN (supra), where Gambari, JCA (as he then was) held –

“Let me say straight away that it is not enough for the plaintiff to allege in his statement of claim that the Defendant falsely and maliciously published a defamatory matter concerning himself, in paragraph 15 of the statement of claim, although the Appellant alleged that the Defendant falsely and maliciously wrote the published words or caused to be written and published by its Personnel Manager the defamatory words concerning the Appellant the mere allegation of falsely and maliciously publishing published defamatory words should be accompanied by a reply to the statement of defence invoking qualified privilege so as to establish how it cannot be said that the publication was so privileged and t must say that apart from that, the Plaintiff ought to have given evidence showing that such publication was made in bad faith and with express or actual malice or malice in fact. Apart from pleading generally that the publication was false and malicious, a Plaintiff must take care to plead express malice together with some particulars of such malice because it should be borne in mind that once a plea of qualified privilege is raised, as it has been raised in the present case, the inference of malice is rebutted and that places the burden on the plaintiff of showing and proving “express malice” against the Defendants. That is what makes it necessary for the Plaintiff to file a reply alleging actual malice, or malice in fact, giving particulars thereof of the facts from which such malice is to be inferred”.

Apparently, in arguing as it did, the Appellant quoted only part of what the lower Court actually said. The full statement at pages 107/108 is as follows –

“The issue is whether the Defendant falsely and maliciously made the publication in dispute. The issue was joined in paragraphs 2 and 5 of the Statement of Claim and paragraphs 3, 4, 5 and 9 of the Amended Statement of Defence. I refer to Section 134 of the Evidence Act and hold that the burden of proof was on the Plaintiff to prove that the publication was false and malicious. The onus of proof will then shift on the Defendant to prove that the publication was true in fact and substance. The Plaintiff did not give evidence on the falsity and malice of the publication. A Plaintiff need not give evidence in a case of defamation unless he claims special damages, for the law presumes falsity and malice of the publication. The Court will have to determine whether the words complained of are capable of defamatory meaning and whether they do convey a defamatory meaning – – “.

Clearly, the lower Court did acknowledge that “the law presumes falsity and malice of the publication”, and it did not really consider it an issue. At any rate, the Respondent is right; the law is that a defence of qualified privilege is not available if the publication was actuated by malice – see Newbreed Org. Ltd. Erhomosele (2006) 5 NWLR (Pt. 974) 499 SC, where the Supreme Court held –
“In defamation, there is no need to prove malice. From the mere publication of a defamatory matter, malice is implied, unless the publication, was on what is termed “a privileged occasion”. – – As a matter of fact, the state of mind or mere belief is immaterial except, of course, in a privileged occasion, in which case, the Plaintiff has to prove actual malice in the popular sense of the term. This is because the law looks at the consequence of a publication and not the motive or intention of the publishers”. (Highlight mine)

In this case, the Respondent relied on the defences of privilege, justification, and fair comment, and after finding that the words complained of in this case “are capable of defamatory meaning”, the lower Court went on to say that –
“The onus of proof then shifted to the Defendant to justify the publication by establishing that the facts were true in substance and in fact.”
It set out the Respondent’s case, including the Exhibits, and held as follows –

‘The facts to be proved by the Defendant to be true are that 14 people were killed and 29 others injured; the Plaintiff built the two collapsed houses and that the Plaintiff got enough money from the government and used an insignificant fraction and maximized its profit. – – I refer to Section 108 Evidence Act and hold that – – Exhibit D4 was a Public document. The Newspapers Exhibits P1 – D1 are not public documents within the meaning of Section 108 Evidence Act. The essence of the certified true copy of a public document is that it may be proof that its contents are the same as the public document itself but not as proof of the truth of its content.
The Court will consider Exhibit D4 and the other evidence before the Court to determine what evidential value to place on the White Paper Exhibit D4. I refer to P.1 of Exhibit D4. The Committee of Inquiry was made up of a Chairman and five other members and one Alhaja M. Lawal as a Secretary. The Defendant having produced Exhibit D4, which made some allegations of facts in respect of the Plaintiff, the onus was on the Plaintiff to prove the contrary although some allegations had to be strictly proved by the Defendant. Paragraph 3 P.1 of Exhibit D4 state the terms of reference of the Committee. Paragraph 4 of Exhibit D4 states as follows:-
“The Committee invited and received written memoranda in addition to hearing oral evidence of 16 people. To evaluate the causes of this tragedy, the committee studied the architectural and structural designs, construction, materials used in the building as well as supervision both from the contracting firm and the client Ministry responsible for the project. Maintenance of the building since completion to the time of collapse was also considered.”
Exhibit D4 went on at P.8 paragraph (c)(iii) to state as follows:-
“From the contractor’s side, though two supervisors were stationed on the site, when interviewed by the Committee, they were both found to be technically in adequate.”
Exhibit D4 shows that the Plaintiff appeared before the committee and its two supervisors were interviewed by the Committee. The onus then shifted on the Plaintiff to prove that Exhibit D4 was conducted without its knowledge. The Committee found faults on the part of the Ministry and on the part of the Plaintiff. The Committee found at P.3 paragraph (c) as follows-
“Construction: Findings – The construction work was carried out by Messrs. G. Cappa Ltd. – – -Kaduna. It was observed that the quality of the construction and materials used leaves much to be desired for the following reasons”.
The Plaintiff did not deny that it constructed the collapsed building of 23rd September, 1980. The Kaduna State Government then commented and took some decisions at p. 4 – 5 of Exhibit D4 as follows-
“Comment: Government accepts this recommendation and directs the Ministry of Works and Housing to implement it. But Government believes that it is necessary to penalize G. Cappa and any official involved in the gross dereliction which had led to such disaster involving the death of five people, injuries and damage to property. Allowing this well-known construction company and the officials to get away without the appropriate penalties would amount to disrespect for human life and condoning such irresponsible and corrupt behaviour in an industry which is very crucial in all aspects of our development. The following penalties are to apply to G. Cappa Ltd:-
(1) This company is forthwith blacklisted and shall not be considered for the award of any contract by the Government, its parastatals and limited liability companies.”
I refer to the two stories in the New Nigerian – – Exhibits D1 & D2 and its editorial Exhibit D3. The facts contained in Exhibit D1, D2 and D3 compared with – – – Exhibit D4 are substantially true in fact and in substance. It follows that Exhibit P1 based on Exhibit D1, D2 and D3 and upon the Evidence of the 1st DW is also true and substance in respect of the first incident of 23rd September, 1980. The defence of justification therefore avails the Defendant in respect of the first incident”.

As to the second incident or disaster, the lower Court reasoned as follows –
“The second paragraph of the Editorial Note shows that the Defendant had doubt as to the authenticity of the denial by the Plaintiff. It does not follow that because the Plaintiff constructed the first collapsed building in September, 1980, it must be the contractor of the second collapsed building in February, 1982 notwithstanding that the two incidents happened in the same Barnawa Estate. The Defendant had failed to prove that the Plaintiff constructed the collapsed building of 12th February, 1982. I hold that the facts in Exhibit P1 that the Plaintiff constructed the collapsed building of 12th February, 1982 are not proved to be true in fact and substance. The Defendant did not also prove that the Plaintiff got enough money from the Government and used insignificant fraction of the amount and maximized its profit. Exhibit D2 on the incident of 23/9/80 stated that 8 people were killed while 16 injured and that at the incident of 12th February, 1982 6 people were killed while 13 others were injured. The Defendant relied on Exhibit D1 to say that 14 people were killed and 29 others injured at the two incidents which was arithmetically correct. The White Paper Exhibit D4 stated that five people were killed at the first incident and injuries caused. The figures of those killed and injured may well be exaggeration, Exhibit D2 having been written almost immediately after the two incidents as opposed to Exhibit D4 an inquiry held later by the Government, the publication is substantially true in substance and in fact. The publication in respect of the first incident was justified. The publication in respect of the second incident conveyed the defamatory meaning that the Plaintiff constructed the two collapsed building of 12th February, 1982 and that the Plaintiff a building contractor was incapable of constructing a good building that would not collapse and lead to loss of lives and property”.

The Appellant has argued that the lower Court erred in treating contents of the Exhibits as proof of its truth when what they contain are not admissible for such purpose as “it is only admissible evidence for that purpose in accordance with express statutory provisions such as Sections 34 or 91 of the Evidence Act”. Furthermore, that the contents of Exhibit D4 are also irrelevant since they consist of the opinion of a Committee, and those that testified behind its back at the Inquiry were not called to give evidence before the lower Court; and it referred us to Gatley on Libel, 9th Ed, where the Author explained as follows –

“The Defendant must prove that the defamatory imputation is true. It is not enough for him to prove that he believed that the imputation was true, even though it was published on belief only. If I say of a man that I believe he committed murder, I cannot justify by saying and proving that I did believe it. I can only justify it by proving the fact of the murder. The same is true if the defendant says that he is only repeating what others have said or that it is a rumour. So if the Defendant has said “A said that P had been convicted of theft”, it will be no defence for the Defendant to prove that A did tell him so, that he honestly believed what A said, and only repeated it. He must prove as a fact that P was convicted of theft. “If you repeated a rumour you cannot say it is true by proving that the rumour in fact existed; you have to prove that the subject-matter of the rumour is true”. Again, if the words impute the commission of the specific offence, it is not enough to prove that the plaintiff was suspected of the alleged offence, or that he has a general reputation of committing such offences, although that may be proved in mitigation of damages. To succeed in his plea of justification the Defendant must prove as a fact that the plaintiff did commit the offence. The basis of this rule is to prevent an invitation to the jury to conclude that a statement based on a rumour or hearsay is thereby true or bears a less defamatory meaning than the original allegation. Its existence is confirmed by the fact that reports of judicial proceedings in open court are protected by the separate defence of privilege. If justification were applicable to reports of defamatory statements of witnesses privilege would be unnecessary”.

However, the Respondent submitted that Exhibits D1 – D3 passed the test of admissibility under Sections 108, 110 & 111 of the Evidence Act and Exhibit D4 passed it by virtue of section 112 (a) (iv); that although Ogbunyiya v. Okudo (1979) 12 NSCC 17 dealt with Section 112(a)(iv), the Section was considered in respect of Exhibit D4, printed by the Kaduna State Government and containing facts of a public nature, which the Government intended to notify the public; and that raising the issue of non-compliance with Section 34 and 91 is totally unfounded as it is clear from Exhibit D4 that the Respondent was present and testified before the Committee, the report of which is Exhibit D4. It referred us to the case of Anatogu v. H.R.H. Iteka II (1995) 8 NWLR (Pt. 415) 547, and submitted that proper foundation was laid before Exhibits D1, D2, D3 and D4 were admitted in evidence; that the Appellant did not object to the Exhibits being tendered, citing Concord Press v. Olutola (1999) 9 NWLR (Pt. 620) 578; that not having objected to the admissibility of the said Exhibits in evidence, the lower court had no choice but to rely on them in reaching its decision after considering what weight was to be attached to them as could be seen on pages 112 – 116 of the Records, as such the Appellant cannot be heard to complain about their admissibility; and that it is trite law that the time to object to a document at the trial is when the document is produced for that purpose, citing V.S.T. Co. Ltd. v. Xtodeus (1993) 5 NWLR (Pt. 296) 675 at 695.

In resolving this issue, we must remember that the admissibility of a document in evidence is one thing while the probative value that may be placed thereon is another – see Okonji V. Njokanma (1999) 14 NWLR (Pt. 638) 250 SC, wherein Achike, JSC, added that three main criteria govern the admissibility of a document, namely- Is the document pleaded? Is it relevant to the inquiry being tried in Court? And is it admissible in law? In that case, a record of proceedings was admitted despite opposition, and Achike, JSC, further held –
“- – The Appellants further canvass the point that Exhibit B is inadmissible on the grounds that the requirements of Section 34(1) [Evidence Act] have not been met- – The aim of Exhibit B from the Respondent’s pleadings was to introduce the evidence of one Obidi in Suit 1/1931, which was inadmissible in evidence in that the requisite evidentiary foundation for its admissibility was not laid – – I must hasten to say that a document may be admissible in evidence if it satisfies the prescribed conditions for admissibility for that purpose yet those conditions may be wholly unsatisfactory if such document is sought to be admitted in evidence for yet a different purpose. This is another way of saying that even if a document is admissible under certain provisions of the Evidence Act that does not ipso facto make the same document admissible for all intents and purposes because where such document is intended in proof of a specific item under the relevant law, the specific requirements or provisions under that law must be satisfied to the hilt in order to effectuate the reception of the document in evidence”.
The Supreme Court per Achike, JSC, concluded as follows at page 272-
“The sum total of what we are trying to establish is that the statement made by one Obidi in Suit 1/1931 in Exhibit B, which is crucial to the Respondent’s case that could have been admitted in evidence under Section 34(1) of the Evidence Act had the proper foundation been laid both in the Respondent’s pleadings and in evidence. If the matter of admissibility of Exhibit B rested on whether Exhibit B was a relevant, genuine and public document, no doubt, the cumulative effect of the provisions of Sections 111, 112 and 130 of the Evidence Act would ordinarily have given the admissibility of Exhibit B the necessary pass mark. But, on the contrary, the admissibility of Exhibit B was predicated on the strict compliance with the provisions of Section 34(1), which the lower Court, as we had earlier shown, neglected to give any consideration whatsoever”.
In that case, Okonji V. Njokanma (supra) the proper foundation was not laid, and admissibility of the said Exhibit B rested on the strict compliance with the provision of Section 34(1) of the Evidence Act. In this case, the Appellant alleged that the Respondent “maliciously published” the Editorial [Exhibit P1] in order to damage its “business as Building and Civil Engineering Contractors”.

The Respondent pleaded and tendered Exhibits D1, D2, D3 and D4 to show that it’s opinion about the Appellant’s role in the buildings that collapsed and killed some of the occupants was a fair comment; not a malicious publication.

The Appellant did not call any witness or adduce evidence to challenge the authenticity of any of the Exhibits, and it did not object to its admissibility. The best time to object to the admissibility of a document is at the trial – see Fatubi v. Olanloye (2004) 12 NWLR (Pt. 887) 229 SC, wherein it was observed –
“- – The document – – is admissible and was in fact admitted – – without objection. It is therefore late for the Respondent to raise objection to its admissibility now”.
In other words, it is better to object to the admissibility of a document when it is being tendered because it will be too late to complain on appeal – see Ibori V. Agbi & Ors (2004) 6 NWLR (Pt. 868) 78 at 136, where Uwais, CJN, observed-
“As to the admissibility of Exhibit ‘A’ before the trial court, the Appellant heard to complain. All the parties before the learned trial judge including the Appellant agreed, by consent, to address the Court on the document. The implication of this is that all the parties were at one that the Exhibit was admissible. A document may be inadmissible but the parties in the case can consent to its being admitted. Once this has happened, none of the parties will be allowed to resile from such an agreement. They are estopped to do so”.

In this case, the proceedings of 24/7/1990 at page 81/22 of the Record, reads-
“Mr. Sofola: We served the subpoena on the witness at Kaduna. The Plaintiff’s representative informed me that he left money for the transport and accommodation of the witness to be in Court. The only testimony we require of him is to substantiate par. 4(g) of the Defence. I have the certified true copy with me. If my learned friend consents, we tender it and I close my case, otherwise, I will ask for an adjournment.
Chief Williams: There is a technicality in my consenting and they putting it in. I will have no objection if my learned friend puts it in from the Bar or through his clerk. Mr. Sofola: I will ask my junior- Miss Obaseki to go into the witness box”.

His junior, Osarugue Abimbola Obaseki, took an oath as DW3, and explained that she had applied for a C.T.C. of the Kaduna State Government White Paper, and it was admitted in evidence as Exhibit D4. Unfortunately, the said Exhibit was not transmitted to this Court. The Appeal was initially heard on the 11th of April 2013, and after all the efforts to get hold of the said Exhibit failed, parties were invited to address this Court on the 9th of July 2013 “on the issue of the missing Exhibit D4”. Miss Chidinma Osaji, holding brief for B.C. Igwilo, Esq., learned counsel for the Respondent, informed the court as follows –

“Chief Sofola SAN tendered the Exhibit at the lower Court and handed the appeal over to us without the Exhibit – we have made all efforts to trace the Exhibits at the lower Court but all efforts failed. There was no objection to the Exhibits being tendered at the lower court and the Appellant have not appealed or complained about the use of the said Exhibit by the lower Court”.

Mr. A. O. Akerele, Esq. learned counsel for the Appellant, replied as follows –
“We have no objection and we are content with this Court relying on the said Exhibit D4 as reproduced by the lower Court in its Judgment”.
We may not have direct access to Exhibit D4 but it was pleaded; it is relevant to this appeal, and so, it is admissible in law – See Okonji v. Njokanma (supra).

In any case, the Appellant did not object to its admissibility in evidence, and the Respondent is right – the lower Court had no choice but to rely on it. On the question of whether the publication was privileged, it held as follows –

“- – In view of the first collapsed building of September 1980 – – and the stories and the Editorial by the New Nigerian of 15th February, 1982 in respect of that first incident which was true in fact and substance, and the uncontroverted evidence of the 1st Defence/Witness that the second building did collapse in February, 1982 in the same Barnawa Estate, the Defendant had both an interest and duty to publish an incident that resulted in loss of lives and properties of Nigerians both to the public and the Government. The Defendant a member of the Nigerian Press the 4th Arm of the realm and watch dog of the Government and the governed has an interest and duty to publish the collapse of the building at Barnawa Estate in February, 1982. The Public and the Government also had interest to receive the publication from the Defendant. I hold that the occasion of the collapsed building of February, 1980 – was privileged.

The Appellant, however, argued that the defence of qualified privilege is only available where the Respondent has an interest/duty to publish the words and persons to whom it was made had corresponding interest/duty to receive it, citing Toogood v. Spyring (1834) 1 GM & R 181 at 193, where Parke B. said –

“In general, an action lies for the malicious publication of statements, which are false in fact and injurious to the character of another, and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral or in the conduct of his own affairs in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications and affords a qualified defence depending on the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society”.

And Adam v. Ward (1917) A.C. 309 at 334, where Lord Atkinson said that-
“A privileged occasion – – is an occasion where the person who makes a communication has an interest or a duty, legal, social or moral to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential”.

It further argued that a publication in a Newspaper will not attract privilege unless it comes within the common law privileges for reports (e.g. of judicial and parliamentary proceedings) or within the provisions of part 3 of the Defamation Law which, in any case, was not pleaded by the Respondent.

Furthermore, that there is no evidence upon which the lower Court could reasonably find that the defence of qualified privilege exists; that the lower Court’s finding that the Respondent – “a member of the Nigerian Press, the 4th arm of the realm and watchdog of the Government and the governed has an interest and duty to publish the collapse of the building” is misplaced in law because under the law, it has no special position or privilege as “a member of the Nigerian Press, the 4th arm of the realm and a watchdog of the Government and the governed”; and as such the lower Court’s findings are unreasonable.

The Respondent argued to the contrary that the said defence avails it, and the Press, the fourth estate of realm has a vital role to play not only in relation to information dissemination but also in nation building; that its role is so fundamental that a place was found for it in the constitution – Section 39 on “Right to freedom of expression and the press” that guarantees freedom of speech and freedom to hold opinions; that its comment on the menace of collapsed building which are often fatal, in the course of the sacred, legal, moral and social duty towards advancing the welfare of society is germane and constitutes qualified privilege, citing Dumbo v. Idugboe (supra),Din v. African Newspaper Ltd. (1990) 3 NWLR (Pt. 139) 392, Registered Trustees of AMORC v. Awoniyi (1994) 7 NWLR (Pt. 355) 154; that although the lower Court found that the words complained of are capable of defamatory meaning, it still held that having given viva voce evidence and tendered Exhibits establishing that they were true in substance and in fact, it had discharged the burden placed on it by law, so, the publication of the first incident in 1980 was justified; and that as far as the publication of the second incident in 1982 was concerned, the lower Court held that the defence of the privilege and fair comment availed it though the words complained of were not totally proved to be true.

The Respondent also referred us to our decision in the case of Gomez v. Punch (Nig.) Ltd. (1999) 5 NWLR (PT. 602) 303 at 311 – 312 as follows-
“By the defence of qualified privilege, a Defendant is simply stating that even through the publication complained of by the Plaintiff might be defamatory of him or that it might even be untrue or false, however, since it was published to the generality of the people, who the law recognizes as persons who have a corresponding interest to receive the publication from the Defendant that has the duty to publish it on account of public policy, the Defendant cannot incur any legal liability if the publication is not actuated by malice. It is usually the defence put up by media houses, who themselves are the mouthpiece of the public. Thus, when the publication is made honestly and without any indirect or improper motive a newspaper can legitimately take cover under the defence of qualified privilege and consequently it is immune from liability – – A privileged occasion where the person who makes a communication has an interest or duty, legal, social or moral to make it to the person to whom it is made has corresponding interest or duty to receive it – – All instances of qualified privilege can be subsumed within one general principle that they exist for the common convenience and welfare of society”
And our decision in NTA V. Babatope (1996) 4 NWLR (Part 440) 75, thus-
“Qualified privilege is a defence to an untrue publication. However, it can only be claimed when the occasion of the publication is shown to be privileged – – A publication is privileged where it is made with a view to giving public information on a matter of public interest if is the duty of the Defendant to communicate it to the general public. – – It is for the Judge to determine whether an occasion is privileged, and to decide whether the Defendant was under a duty to make the communication. The Judge is entitled to take the entire prevailing circumstances into account in reaching a decision – – in considering whether the occasion was an occasion of privilege, the Court will regard the alleged libel and will examine by whom it was, to whom it was published, when, why and in what circumstances, it was published, and will see whether these things established a relation between the parties which give rise to a social or moral right or duty and consideration of those things may involve the consideration of question of public policy”.

In this case, the lower Court’s conclusion that the Respondent “has an interest and duty to publish the collapse of the building (and) the Public – – also had interest to receive the publication”, cannot be faulted. “News” is “information about recent events or developments; information about current events printed in newspapers or broadcast by the media; and somebody or something considered as being of interest to people in general” – and “information” is “definite knowledge acquired or supplied about something or somebody; the communication of facts and knowledge” – see Encarta Dictionaries.

Surely, the information the Respondent garnered from the story carried by New Nigerian Newspaper of 15/2/1982 headed “Tragedy at Barnawa Again” about people killed/injured when two buildings collapsed in Kaduna is “news, and being a newspaper, it had an interest or duty to inform the public about it.
More importantly, the public had a corresponding interest or duty to receive it – see Adam V. Ward (supra). This issue is resolved against the Appellant.

The Appellant also complained that the lower Court considered Sections 7 and 8 of the Defamation Law, which were not pleaded by the Respondent in its Statement of Defence. It referred us to Order 16 rule 11 of the High Court (Civil Procedure) Rules, Nwadialo’s Civil Procedure in Nigeria 2nd Ed., Malomo v. Olushola (1995) 15 WACA 12 and Akwei Vs. Akwei (1945) 9 WACA 111.
But the Respondent countered that it is not the law that a statute has to be pleaded before a party can rely on it; that he can only plead material facts, citing Anyawu V. Mbara (1992) 5 NWLR (PT. 242) 386 SC, where it was held –
“The law now is that it is no longer necessary to plead statutes and sections thereof before reliance can be placed thereon. It is sufficient to plead material facts, which will lead to a certain legal result and, once such material facts have been pleaded, the inference to be drawn from such pleaded facts and the particulars of law to be relied upon for such an inference need not be pleaded. Thus, even if, for convenience, a party pleads a legal result, he is not bound by, or limited to, what he has stated. He can present, in argument, any legal consequence of which the facts permit.”
It added, citing Onamade v. ACB Ltd. (1997) 1 NWLR (Pt. 480) 123 & Finnih v. Imade (1992) 1 NWLR (PT. 219) 511, that its pleadings complied with the law, and also referred us to Ogbonna V. The President (1990) 4 NWLR (Pt. 142) 138 and Guinness v. Agoma (1992) 7 NWLR (Pt. 256) 728,wherein it was held-
“A statute has the force of law which compels everyone within the realm of its application to be found by its provisions. Thus, whether or not issue is joined by the parties to a suit on a particular statute, the Court is not precluded from looking at and construing its provisions – – PARTIES NEED NOT JOIN ISSUES IN THEIR PLEADINGS ON A POINT OF LAW OR STATUTORY PROVISIONS. Once a law or statutory provision is found applicable, it will be readily applied by the Court notwithstanding that parties have not expressly joined issues on it in their pleadings”

In resolving this particular issue, we must bear in mind that there is a general rule but there are also exceptions to that rule – see UBA Plc. v. G.S. Ind. (Nig.) Ltd. (2011) 8 NWLR (Pt. 1250) 590, where Lokulo-Sodipe, JCA, observed that –
“Though the law of pleadings in some circumstances requires that some specific laws should be pleaded (e.g. statutory defence such as the Limitation Statute), it is generally not the law of pleadings that any law to be relied upon by a party must be pleaded. As a matter of law, what a good pleading is to contain are facts relied upon by the parties and they should be positively, precisely and succinctly stated”.
And Anyanwu v. Mbara (1992) 6 SCNJ 90, where Nnaemaka-Agu, JSC, explained-
“It must be noted that one inevitable result of the fact that pleadings need no longer be technical in terms is that it is, now, no longer necessary to plead statutes and sections thereof expressly. It is sufficient if the material facts which will lead to a certain legal result are pleaded. Once such material facts have been pleaded, the inference to be drawn from such pleaded facts and the particulars of the law to be relied upon for such inference need not be pleaded”.
In other words, law need not be pleaded before a party can rely on the same. But a party relying on a special statutory provision for his defence must plead that defence specifically – see Ojiogu v. Ojiogu (2010) 9 NWLR (Pt. 1198) 1 SC and Oyebanji V. Lawanson (2008) 15 NWLR (Pt. 1109) 122 SC where the Supreme Court held – “a party wishing to rely on a statute of limitation or the Administration of Estates Law must- specifically plead same”. In this case, the Respondent relied on the defences of privilege, justification, and fair comment. The lower Court, in finding that the defence of fair comment succeeded, held –
“The state of mind of the Defendant at the time he published the defamatory words is most material. The comment in the publication was inspired in the Defendant by the second collapsed building and loss of lives and property just less than two years after the first incident of collapsed building. If the plaintiff had been blacklisted by the Kaduna State Government in 1982, it is a fair comment that the company be sent packing if it was responsible for the second incident of the collapsed building of 1982. The language used in the publication was very strong but was courageous. The Defendant proved part of the facts to be true in substance and in fact and failed to prove some part of the publication. Sections 7 and 8 Defamation Law, Cap 34 Laws of Lagos State provide that the defences of justification and fair comment shall not fail by reason only that the truth of every allegation of fact is not proved. The publication Exhibit P1 has to be read as a whole. The Defendant was concerned with the safety of lives and properties and vigilance by the government and government officials. The defence of fair comment succeeds”.

The said Sections 7 and 8 of the Defamation Law that it referred to, provides –
7. In an action for libel or slander in respect of words containing two or more distinct charges against the Plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the Plaintiff’s reputation having regard to the truth of the remaining charges.
8. In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.

In arguing that the lower Court erred in relying on the afore-said provisions, the Appellant relied on Order 16 rule 11 of the High Court Rules that says –
“The Defendant or Plaintiff – – must raise by his pleadings all matters which show the action or counter-claim not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply – – as if not raised would be likely to take the opposite party by surprises, or would raise issues of fact not arising out of the preceding pleadings, as – – fraud, limitation law, release, payment, performance, facts showing illegality either by an enactment or by common law, or by the Law Reform (Contracts) Laws”
And the following commentary by Fidelis Nwadialo, SAN, at p. 329 of his book –
“There are certain matters which by the Rules of Court or of practice are required to be specifically pleaded. The object of these requirements is to foster still the need for avoidance of surprise to the party against whom any such matter may be raised at the trial. Some of these facts are collated in Order 25 Rule 6(10) of the Uniform High Court Rules and in Order 17, Rule 11 of the Lagos State High Court Rules which makes provisions in that regard.”

Observably, the said Sections 7 and 8 cannot be equated with limitation laws or statutes dealing with fraud, etc. A limitation law prescribes a period within which an action must be commenced, so, a Plaintiff, who might otherwise have had a cause of action, loses the right to enforce it by judicial process as the period of time laid down by the limitation law for instituting such an action has elapsed – see Oba J. A. Aremu II v. S.F. Adekanye & Ors (2004) 13 NWLR (Pt. 891) 572 SC, where the Supreme Court also explained that the rationale or justification for the existence of statutes of limitation, includes the following-
(1) That long dormant claims have more of cruelty than justice in them;
(2) That a Defendant might have lost the evidence to disprove a stale claim; and
(3) That persons with good causes should pursue them with reasonable diligence.

It is also settled that fraud vitiates even the most solemn of transactions.
“In fact, fraud vitiates everything even Judgments and orders of the Court” – see Ugo v. Obiekwe & Anor (1989) 2 SC (Pt. II) 41. This is why the law insists that an imputation of fraud must be pleaded with the utmost particularity – see Onamade & Anor. V. ACB Ltd. (supra) where Iguh, JSC, further stated-
“No rule is more clearly established than that fraud must be distinctly alleged and proved, and that it is not permissible to leave fraud to be inferred from the facts”.

In this case, the Appellant claimed that the Respondent’s Editorial [Exhibit P1] amounted to “Injurious Falsehood” that was calculated to damage its business, and the Appellant’s case is that it carried out investigations and found out that the “buildings, the subject matter of Exhibits P1, D1 and D2, did in fact collapse” and that while the Appellant did not construct the second building that collapsed, it actually constructed the first building that collapsed in 1980.

Surely, the Respondent did not have to specifically plead and prove Section 7 of the said Defamation Law, which says that in an action for libel in respect of words containing two or more charges, a defence of justification will not fail just because “the truth of every charge is not proved”, as long as the words not proved true do not materially injure the Plaintiff’s reputation, and Section 8 of the same Law, which adds that a defence of fair comment will not fail simply because “the truth of every allegation of fact is not proved”, if the expression of opinion is fair comment having regard to such facts proved.

In the circumstances of this case, there was no evidence on the part of the Appellant to counter the Respondent’s assertions, it must go without saying that the lower Court was right to apply the provisions of the Sections of the Defamation Law to the material facts pleaded and proved by the Respondent.
It is a different matter altogether if there was no basis at all for its conclusions, but the Appellant’s complaint about its reliance on the said law is uncalled for.

However, to buttress its final argument, the Appellant referred us to the 9th Edition of Gatley on Libel and Slander, wherein the learned Author wrote –

“If the facts stated in the publication as a basis for comment are themselves defamatory, the Defendant must plead justification or privilege in relation to them, and fair comment will be no defence. But even if they are not defamatory they must – – be shown to be true; a writer may not suggest or invent facts, or adopt as true the untrue statements of fact mode by others, and then comment on them on the assumption that they are true. If the facts upon which the comment purports to be made do not exist, the defence of fair comment must fail. Comment based on matters of opinion only, which may or may not be true, equally affords no defence. In order to give room for the plea of fair comment the facts must be truly stated. If the fact upon which the comment purports to be made do not exist the foundation of the plea fails. The comment must not misstate facts because a comment cannot be fair which is built upon facts which are not truly stated. If the Defendant makes a misstatement of any of facts upon which he comments, he at once negatives the possibility of his comment being fair. The omission of a highly relevant fact may amount to such a misstatement. Where the words which are alleged to be defamatory allege or assume as true, facts concerning the Plaintiff which the Plaintiff denies, and which either involve a slanderous imputation in themselves, or upon which the comment bases imputations or inferences injurious to the Plaintiff, it is settled law that the defence of fair comment fails unless the comment is truthful in regard to its allegation or assumption of such facts. It is not comment – – grossly to misrepresent the conduct of a public man, and then to hold him up to execration for his alleged wrongdoing. To say that you may first libel a man and then comment upon him is obviously absurd”.

And Sutherland V. Stopes (1925) A.C. 47 at 62, where the House of Lords held –
“It is clear that the truth of a libel affords a complete answer to civil proceedings. This defence is raised by plea of justification on the ground that the words are true in substance and in fact. Such a plea in justification means that the libel is true in its allegations of fact but also in any comments made therein. The defence of fair comment on matters of public interest is totally different. The Defendant who raises this defence does not take upon himself the burden of showing that the comments are true. If the facts are truly stated with regard to a matter of public interest, the Defendant will succeed in his defence to an action of libel if the jury are satisfied that the comments are fairly and honestly made. To raise this defence, there must, of course, be a basis of fact on which the comment is made. For a good many years past a practice has prevailed of raising this defence by what has been called the “rolled plea” but it will be found that this term is a misnomer based on a misconception of the nature of the plea. Such a plea states that the allegations of fact in the libel are true, that they are of public interest and that the comments upon them contained in the libel were fair. The allegation of truth is confirmed to the facts averred and the averments as to the comments is not that they are true but only that they were made in good faith, and that they are fair and do not exceed the proper standard of comment upon such matters”. [Berton v. Board (1929) 1 KB 305 and Cawford v. Albu (1917) AC 117, also cited.]

It argued that what the interest of citizens requires is freedom of discussion rather than of statement, citing Streeter V. Emmons County Press (1928) 222 N.N. 455 (N.D.); and that the lower Court erred in holding that the Respondent established the defence of fair comment when the alleged facts upon which the comments are based were not established, and statements in the Exhibits are not admissible at common law to prove the truth of what is stated therein.

The Respondent, however, submitted that the lower Court set out the ingredients of the said defence and applied them to the facts before arriving at its decision that its defence of fair comment succeeded, and it referred us to Concord Press (Nig.) Ltd. V. Olutola (1999) 9 NWLR (PT. 620) 578, and Ugo V. Okafor (1996) 3 NWLR (Pt. 438) 542 at 566 – 567, wherein it was held that –
“In a defence of fair comment, the Court must make a finding on the following –
(a) Are the words complained of a statement of fact or expression of opinion or partly one and partly the other?
(b) In so far they are expressions, are they within the limits of fair comment?”
It also cited Registered Trustees of AMORC V. Awoniyi (1994) 7 NWLR (Pt. 355) 154 and Concord Press (Nig.) Ltd. V. Olutola (supra), where it was held –
“The Defendant who pleads fair comment must show:
(a) That the matter is of public interest;
(b) That the comment is founded or based on true facts; and
(c) That the comment on the fact is fair.
Thus if the facts are truly stated with regard to a matter of public interest the Defendant will succeed if the Court is satisfied that the comments are fairly and honestly made. In the instant case, the evidence by Respondent and DW1 showed that the comment by Respondent is fair and based on truth”.
It also argued that it complied with the law by showing that the comments that had to do with a matter of public interest were fairly and honestly made, so the lower Court had no choice but to hold that the said defence succeeded. Furthermore, that whilst a Plaintiff need not give evidence in a libel case unless special damages is being claimed, but where the Defendant, as in this case, raises the defence of qualified privilege or fair comment, it is incumbent on the Plaintiff to file a reply as the burden of proof in a civil case has shifted to him.

We now come to the last lap of this appeal, and to resolve this last issue, we must note when a Defendant avers as his defence that the comment is a fair one, he is saying no more than that the story was based upon true facts, which were in existence when the comment was made – see Basorun v. Ogunlewe (2000) 1 NWLR (Pt. 640) 235, wherein it was further explained that-
“This is so because before a comment can be said to be fair the truth of the facts upon which it is predicated must first be established – – – For the law does not permit a person to invent untrue facts or stories about a man and then comment upon them. In other words, the defence of fair comment will avail the Defendants if they can show that they had only, in good faith expressed their opinion based on facts truly stated on a matter of public interest”. (Per Aderemi, JCA (as he then was).
See also Sketch Publishing Co. Ltd. & Anor v. Ajagbemokeferi (1989) 1 NWLR (Pt. 100) 678, where the Supreme Court adopted the following passage from the summing up in Stopes v. Sutherland, House of Lords Printed cases (1924), in which Lord Hewart, C.J. observed as follows on the latitude of fair comment-
“What is it that fair comment means? It means this – and I prefer to put it in words, which are not mine; I refer to the famous Judgment of Lord Esher M.R. in Merivale V. Carson: ‘Every latitude, said Lord Esher, must be given to opinion and to prejudice, and then an ordinary set of men with ordinary judgment must (not whether they agree with it, but) whether any fair man would have made such a comment: Mere exaggeration, or even gross exaggeration, would not make the comment unfair. However wrong the opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within the prescribed limit. The question which the jury must consider is this – would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said? Again as Bray, J. said in R. Russel: ‘When you come to the question of fair comment you ought to be extremely liberal, and in a matter of this kind – a matter relating to the administration of the licensing laws – – you ought to be extremely liberal, because it is a matter on which men’s mind are moved, in which people who do know, entertain very, very strong opinions, and if they use strong language every allowance should be made in their favour’ They must believe what they say, but the question whether they honestly believe it is a question for you to say. If they do believe it, and they are within the bounds anything like reasonable bounds, they came within the meaning of fair comment. If the comments were made which would appear to you to have been exaggerated, it does not follow that they are not perfectly honest comments’. That is the kind of maxim, which you may apply in considering whether that part of this matter, which is comment is fair. Could a fair-minded man, holding a strong view, holding perhaps a prejudiced view – could a fair minded man have been capable of writing this? – which, you observe is a totally different question from the question, do you agree with what he has said?”

Applying these principles to this case, we must ask whether a fair minded man, who is told that people died or were injured when two buildings collapsed, could author a publication to criticize or censure the Company that built them? Is the publication (Exhibit P1) a fair comment upon a matter of public interest?
On the face of it, the answer is – Yes to both questions, and in such a situation, the law says that just as a Defendant is required to give particulars of the facts on which the plea of fair comment is based, so also is the Plaintiff, where he intends to defeat such a defence of fair comment, obliged to deliver a Reply alleging malice against the Defendant – see Bakare v. Ibrahim (1973) 6 SC 147.
See also Atoyebi v. Odudu (1990) 6 NWLR (Pt. 157) 384 SC, cited by the Respondent in its brief, where Nnaemeka-Agu JSC, aptly observed as follows –
“- – The need to deliver a reply to plead express malice arises not merely because a Defendant has filed a defence of qualified privilege or fair comment. Rather, it arises because he had made out the defence. To put it in another way, it is a duty, which is cast on him by the shifting of the burden of proof in the civil case and not merely as a rule of pleading. It is a matter of common sense that legal defences are never made out by a Defendant merely filing his defence, but by his calling cogent evidence in proof of the defence filed. I believe it is always open to a Plaintiff faced with a defence of qualified privilege to decide whether he can, as in this case, rely on need for his pleading express malice, the onus of proof of which is on him. On when he believes that such a defence will probably be made out, he may and should seek to destroy it by pleading and showing that the publication was actuated by malice”.

The Respondent also referred us to the case of Akamagwuna v. Savannah Bank of Nigeria Ltd. (1995) 3 NWLR (Pt. 383) 343, wherein it was held that –
“Where a plea of fair comment or qualified privilege is made out, the inference of malice is rebutted, and the burden is thrown upon the Plaintiff of showing and proving express malice against the Defendant. This is generally known as “malice in fact” and to be able to discharge this onus at the trial it is important that the Plaintiff should deliver a reply, alleging express malice and giving particulars of the facts from which such malice is to be inferred”.

The Respondent contends that it discharged the onus of pleading and proving the defence, so, the burden of proving malice shifted to the Appellant; and its failure to file a Reply to its Amended Statement of Defence and proving that the said publication was actuated by malice did serious violence to its case.
Once again, I have to agree with the Respondent. There is no question at all that the Appellant was standing on very shaky grounds at the lower Court as it did not adduce evidence to deny the allegation that it built the first building that collapsed in the said Estate in 1980; Exhibit P1 was tendered from the Bar, and it closed its case. It did not also file a Reply to the Respondent’s Statement of Defence, and the lower Court was, therefore, right to conclude as follows –
“The Defendant having established the defences of privilege and fair comment, the onus then shifted on the Plaintiff not only to file a Reply but also to prove express or actual malice of the Defendant. The Plaintiff did not file a Reply nor give evidence of actual malice. Malice may be inferred from the publication and the circumstances of the publication. It is now settled that malice in the law of defamation means some dishonest or improper motive – – I refer to the Defendant’s editorial note in Exhibit D3. The fact that the Defendant doubted the Plaintiff’s denial that it erected the collapsed building of February, 1982 does not mean that the Defendant was dishonest or had an improper motive. Paragraph (1) p. 5 of – – Exhibit D4 states- –
(1) “This Company is blacklisted from carrying out any construction in the State. If it is presently engaged in any work, it shall be allowed to complete it”.
It follows that the Plaintiff might be allowed to complete his contract with the State Government after the incident of September 1980. It was therefore not unreasonable for the Defendant to call on the government to investigate the Plaintiff’s denial a fortiorari when the two incidents occurred in the same Barnawa Estate – and within less than two years. I cannot infer from the publication or the circumstances of the publication any dishonest or improper motive on the part of the Defendant”.

The bottom line is that the Respondent was able to make out that it had no malice against the Appellant, and that it was serving a public interest when it published Exhibit P1, and the Appellant had no legs to stand on because it failed to plead or adduce evidence to show that Exhibit P1 was actuated by malice.

The end result is that the appeal lacks merit, and it is hereby dismissed.
There will be no order as to costs.

CHIMA CENTUS NWEZE, J.C.A.: My noble and inimitable Lord, Augie JCA, obliged me with the draft of the leading judgment just delivered now. I am enamoured of the eloquent reasoning and cogent conclusion. The lower court’s conclusion that the Trinitarian defences of privilege, justification and fair comment availed the respondent [as defendant] is, in my humble view, unassailable.

Long before Nigeria began to flirt with constitutional democracy, the common law of England had conceded to the Media (otherwise known as “the Fourth Estate of the Realm”), the prerogative of disseminating communication to all and sundry for the common convenience and welfare of society. In other words, the common law recognized the media as the mouthpiece of the inarticulate majority who, pre-occupied with the drudgery of a concatenation of existential challenges, are, almost always, oblivious of the happenstances which impinge on their welfare.

Most of the illustrious authorities on the law of Tort are unanimous on this, W.V. H. Rogers (ed), Winfield and Jolowicz on Tort (18th edition) (London: Sweet and Maxwell, 2010) passim; Clarke and Lindsell on Torts (15th edition) (London: Sweet and Maxwell Ltd, 1982) passim; A Street, The law of Torts (6th edition) London. Butterworths, 1976); W.L. Prosser, A Handbook on the law of Torts; Gatley on Libel (9th edition); G.J. Flemming, The law of Torts (London: Sweet and Maxwell Ltd, 1977); J.W. Salmond, Salmond and Heuster, Law of Torts (15th edition); Toogood v. Spyring (1834) 1 GM and R 181, 193; Adam v. Ward (1917) AC 309, 334. As in England, so also in Nigeria, Newbreed Org. Ltd v. Erhomosele (2006) 5 NWLR (Pt.974) 499; Dumbo v. Idugboe (supra); Din v. African Newspapers Ltd. (1990) 3 NWLR (Pt.139) 392; Registered Trustees of AMORC V. Awoniyi (1994) 7 NWLR (Pt.355) 154. I agree with the leading judgment that the publication in question, being a publication on a matter of public concern, did not, in any way, expose the defendant to liability.

It is for the above reasons, and the more detailed reasons in the leading judgment, that I, too, shall enter an order dismissing this appeal as unmeritorious. Appeal is hereby dismissed. I abide by the consequential orders in the leading judgment.

CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, AMINA ADAMU AUGIE JCA. He has thoroughly reviewed the law and authorities applicable in the circumstances. I agree with his reasoning and conclusions. With the failure of the Appellant to file a reply to the amended statement of defence to enable it allege and prove malice, its case came to an abrupt end. It is always better in matters of this nature not to put all of one’s eggs in one basket but to err on the side of caution by covering all possible angles. I agree that the appeal lacks merit. I also dismiss it. I abide by the order in the lead judgment as to costs.

Appearances

O. A. Akerele, Esq., with Mrs. M. EnemosahFor Appellant

AND

B. C. Igwilo, Esq., with Charles Nzegbuna, Esq., and Miss Chidinma OsajiFor Respondent