JOE ODEY AGI ESQ. v. FIRST CITY MONUMENT BANK PLC (2013)

JOE ODEY AGI ESQ. v. FIRST CITY MONUMENT BANK PLC

(2013)LCN/6176(CA)

In The Court of Appeal of Nigeria

On Thursday, the 9th day of May, 2013

CA/C/19/2011

RATIO

WORDS AND PHRASES: DEFENCE OF QUALIFIED PRIVILEGE

The defence of qualified privilege has been considered in a long line of authorities. In Obasuyi v. Ezeighu (1991) 13 NWLR (PT. 181) 585, this Court, per Salami J.C.A (as he then was) held as follows:-
“It is settled on these authorities that qualified privilege is an occasion where the maker of a publication has an interest or duty whether legal, social or moral to make it to a person who has a corresponding interest or duty to receive it. The existence of such an interest or duty destroys the inference of malice which the law makes and allows for the occasion to be privileged except there is evidence of actual or express malice.”
See also: Adam v. Wards (1912) A.C. 309; Gomes v. Punch (Nig.) Ltd (1999) 5 NWLR (Pt. 603) 303; Atoyebi v. Odudu (1990) 6 NWLR (pt. 157) 384 at 399.

Thus, the two things that must co-exist before the occasion for the publication of offensive words could be said to be privileged are:
1. The communication must be of such a nature that it could be fairly and correctly said that those who made it had an interest or a duty, whether legal, social or moral, to communicate it; and,
2. The person to whom it was communicated had a corresponding interest, again whether legal, social or moral, in having it made to him. See: Gomes v. Punch (Nig.) Ltd (supra); Atoyebi v. Odudu (supra); Offoboche vs. Ogoja LG (2001) FWLR (PT 272) 223: Ologe vs. New Africa Holdings Ltd. (2002) FWLR (PT 119) 1614 at 1622-1623; FBN vs. Aboko (2006) ALL FWLR (PT 301) 1897.

The defence of qualified privilege, if it is not characterized by gross and unreasoning prejudice, is a complete defence. And, what was stated must be a substantially fair account of what occurred. See: Emeagwara v. Star Printing & Publishing Co. Ltd. (2000) 5 SCNJ 175 of 185.
But, where there is an allegation and proof of express malice by credible evidence, the defence of qualified privilege is defeated. It is incumbent on the Appellant to prove malice in order to destroy or neutralize the defence of privilege or qualified privilege. See: Iloabachie v. Iloabachie (supra), also reported in (2005) 5 S.C. (PT. 11) 149; Sule v. Orisajinmi (2006) ALL FWLR (PT 343) 1686 at 1712-1714. Express malice however, must of necessity be pleaded so that the Defendant is not taken by surprise. See: S.B. Bakare vs. Ado Ibrahim (1973) 3 ECSLR (PT 1) 485 at 489: M.T. Mamman vs. A.A. Saludeen (2005) 12 S.C. (PT. 11) 46. PER ONYEKACHI A. OTISI, J.C.A.

JUSTICES:

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

JOE ODEY AGI ESQ. – Appellant(s)

AND

FIRST CITY MONUMENT BANK PLC. – Respondent(s)

ONYEKACHI A. OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State sitting at Calabar, delivered on 12th July 2010. The Appellant had filed Suit No C/236/95 seeking the following reliefs:
(a) An order compelling the Defendant to publish in one National Daily and Cross River Radio for seven days an apology and retraction of the malicious and false publication.
(b) N10,000,000.00 (Ten Million Naira) as exemplary and general damages for false and malicious publication against the Plaintiff.
(c) N5, 000,000.00 (Five Million Naira) as exemplary and general damages for malicious prosecution.
In summary, the facts leading to this suit are as follows:
The Appellant, a legal practitioner, signed and undertook a guarantee on behalf of one Uma Dickson, doing business under the name and style of Uma Company Nigeria on 14/5/1991 to pay the sum of N1 Million only to the Respondent, then known as Co-Operative Development Bank; in the event of a default of repayment of the proposed loan to be given to Mr. Uma Dickson. One Dr. Adeyemi had also guaranteed the same loan as the second guarantor. After the conditions for the proposed loan had been signed and the guarantee agreement executed by the Appellant, the Respondent wrote Mr. Uma, rejecting his application for the loan. The Respondent returned the title deeds intended as security for the loan, but held on to the guarantee agreement.
The Appellant was shocked and embarrassed to receive a letter dated 23/4/1992, Exhibit 5, from the Respondent requesting him to offset his liability to the Respondent in respect of the guarantee agreement executed on 14/5/1991.
The Appellant wrote the Respondent, repudiating liability, with a caution, warning them of the danger of damaging his name. Mr. Uma Dickson also wrote the Respondent on 11/6/1992, Exhibit 6, reminding them that the subsequent overdraft facility granted to him was secured by his fixed deposit account with them. The Respondent however proceeded to represent to the Public Fund and Property Recovery Tribunal that the Appellant was its debtor, causing the Cross River State Radio to publish the following words concerning the Appellant:
The following debtor customers of the First City Monument Bank Plc are hereby summoned to appear before the Public Property and Recovery Tribunal on 20th October, 1994 at 9.00 a.m. prompt… Barrister Joe Odey-Agi – amount due N1, 000,000.00 (One Million Naira)…..
The announcements were made repeatedly for a week and subsequently the Appellant was served summons to appear before the Tribunal, which he did. He raised a preliminary objection, upon which the matter was adjourned for settlement.
The Appellant’s complaint is that he was disparaged and embarrassed by the said announcement. After the Tribunal struck out the suit, his Solicitors wrote the Respondent demanding for an apology to clear his name. The Respondent failed to tender the apology or retrieve the said publication, hence the suit instituted by the Appellant.
At the conclusion of the hearing, the trial court dismissed the Appellant’s suit. The Appellant, being dissatisfied with the judgment, filed this appeal.
In the Notice of Appeal filed on 11/10/2010, the Appellant raised two Grounds of Appeal and, sought an Order, setting aside the Judgment of the lower court; and, entering judgment in his favour.
The Appellant’s Brief of Argument was filed by Mohammed Shuai’bu, Esq. of Counsel on 18/4/12, and, deemed properly filed on 16/5/2012. Dr. J.A. Dodo of Counsel for the Respondent filed the Respondent’s Brief on 9/7/2012, deemed properly filed on 17/10/2012. The Appellant’s Reply was filed on 30/1/2013 and deemed filed on 26/3/2013. These Briefs were adopted by respective Counsel on 26/3/2013.
In the Appellant’s Brief, two issues were distilled for determination from the two Grounds of Appeal as follows:
1. Whether the learned trial judge was right in holding that the defence of qualified privilege availed the respondent.
2. Whether the appellant has made out a case of defamation and malicious prosecution when the suit before the tribunal was struck out.
The Respondent adopted the issues for determination as formulated for the Appellant.
On Issue No 1, learned Counsel referred to the Judgment of the lower court wherein the Learned Trial Judge had held on page 87 of the Record of Appeal as follows:
“I therefore find and hold that it is not true as published in the radio announcements that the Claimant was owing the Defendant N1 million at the time. The publication was false.”
But, that the trial judge had relied on the defence of qualified privilege to dismiss the Appellant’s claim without considering the pleading and evidence of bad faith/malice on the part of the Respondent. He referred particularly to paragraph 32 of the Statement of Claim where the Appellant had pleaded as follows:
32. The Defendant acted in absolute bad faith with the intention of embarrassing the plaintiff.
PARTICULARS OF BAD FAITH
(a) The Defendant knew from 1992 that the plaintiff was not owing them N1, 000,000.00 or any amount at all.
(b) The Defendants had expressed their willingness to embarrass the plaintiff in the letter of April 1992
(c) The Defendants had refused to apologize and compensate the Plaintiff.
(d) The Defendant did not publish the name of Dr. Adeyemi, one of the Purported guarantors.
(e) The Defendant knows that the Plaintiff is not its customer.
The Appellant had in proof of malice tendered Dr. Adeyemi’s guarantor’s form, Exhibit 3, and tendered the letter of demand of the alleged indebtedness, Exhibit 5, which was addressed to Uma Dickson and copied both to Dr. Adeyemi and the Appellant, wherein the Respondent had stated the indebtedness of Mr. Dickson to be N146, 883.01 as at 23/4/92. The Appellant had also tendered the letter, Exhibit 6, dated 11/6/1992, by which Mr. Dickson had expressly informed the Respondent that the Appellant and Dr. Adeyemi did not guarantee the overdraft but that it was secured with his fixed deposit of N100, 000.00. It is submitted that the Respondent did not deny the allegation of bad faith against the Appellant, relying on Paragraphs 22 and 23 of the Amended Statement of Defence. It is further submitted that elements of malice/bad faith were evidenced by the following facts:
1. That the Respondent knew as of 1992 that the indebtedness of Uma Dickson was nowhere near N1 million but went ahead to falsely publish that the Appellant was owing N1 million just to embarrass the Appellant.
2. That Uma Dickson had by Exhibit 6 written unequivocally absolving the Appellant of any liability to the Respondent in relation to the loan or overdraft. But two years after receipt of the letter the Respondent still went ahead to claim that the Appellant was a guarantor and so a debtor.
3. That the name of Dr. Adeyemi, the second guarantor, was not published and he was not pursued simultaneously with the Appellant.
4. The Respondent had threatened unpleasant consequences prior to the defamatory publication.
It is submitted that the Appellant having pleaded and adduced evidence of bad faith against the Respondent who failed to controvert the averment, that the lower court was duty bound to act on the uncontroverted evidence of the Appellant. It is submitted that where a Defendant fails to controvert an averment or pleading, he is deemed to have admitted it, relying on Amaonwu v. Ahaotu (1998) 9 NWLR (PT 566) 454 at 458; DPN v. UNCP (1998) 12 NWLR (PT 579) 528 at 530.
It is further submitted that the trial judge failed to consider the evidence and pleadings of bad faith against the Respondent, and, that this failure occasioned a miscarriage of justice. It is submitted that malice/bad faith on the part of the Respondent defeats completely the defence of qualified privilege, relying on Iloabachie vs. Iloabachie (2005) 13 NWLR (PT 943) 695, Schlumberger (Nig.) Ltd vs. Onah (2007) ALL FWLR (PT 389) 1327. It is submitted that the Respondent not having denied they acted in bad faith, the lower court was wrong to have availed them with the defence of qualified privilege. He also referred to Page 95 of the
Record of Appeal, where the trial Judge said:
“Malice must be presumed from prosecuting the Claimant unreasonably. That Presumption was not rebutted by the Defendant.”

On issue No 2, the Appellant submitted that malicious prosecution was not limited to criminal proceedings. He submitted, relying on Usifo 11 vs. Uke (1985) SCNLR 109, that the fundamental requirements to succeed in an action for malicious prosecution had been met. It is submitted that based on the entire facts and circumstance of this case including the evidence on record, the Claimant is entitled to the award of all the reliefs sought.

In response, the Respondent has submitted on issue No 1 that the law is well established that communications made in the discharge or performance of a duty, be it public or private duty, or made in protection of lawful interest are privileged, relying on Emeagwara vs. Star Printing & Publishing Co. Ltd (2000) 10 NWLR (PT 676), (2000) LPELR SC 1681-1994.
It is submitted that it is common ground that the Appellant stood surety for, and guaranteed the repayment of all advances, liabilities, bills and promissory notes incurred by Uma Dickson; and, that the alleged defamatory publication was made by the Public Property Recovery Tribunal. It is further submitted that at the time the alleged defamatory publication was made, Uma Dickson was still indebted to the Respondent; and the Respondent forwarded the name of the Appellant to the Tribunal owing to the outstanding indebtedness of Uma Dickson because it was under a legal duty to do so. In this circumstance, that the Respondent is entitled to the legal protection of the defence of qualified privilege.
On the contention of the Appellant that the Respondent’s actions were motivated by malice, it is submitted that where there is joint and several liability, the person to whom liability is owed can proceed against one or more of the persons who owe the liability. Accordingly, that forwarding the name of only one of the guarantors was not evidence of malice. It is further submitted that a careful perusal of the Defendant’s defence will lead to the conclusion that the defendant had denied malice. That the Respondent having shown it had an interest and a legal duty to forward the name of the Appellant to the Tribunal, which also had a corresponding legal interest and duty to receive it, the inference of malice is ipso facto destroyed, relying on Basorun v. Ogunlewe (2000) 1 NWLR (PT 640) 221 of 236: Emeagwara vs. Star Printing & Publishing Co. Ltd (supra).

On issue No 2, the Respondent submitted, relying on Iloabachie vs. Iloabachie 22 NSCQR 672 that the Appellant had failed to make out a case of defamation; and also failed to make out a case of malicious prosecution against the Respondent. The guarantee form executed by the Appellant is relied on to submit that although the N1 million loan being negotiated did not come to fruition, by the said executed guarantee form, the Appellant had undertaken to be liable for – “all advances, liabilities, bills and promissory notes …before or after the date hereof”. It is submitted that the practical and legal implication of this obligation is that the bond executed by the Appellant was a continuing security covering financial accommodations made before and after the execution of the instrument. It is submitted that the outstanding indebtedness of Uma Dickson was N326, 133.20, and that the demand made of the Appellant was this sum. That the publication was an honest demand to settle the outstanding debt which the Appellant voluntarily undertook to repay, and, cannot amount to defamation, the words being materially true.
It is further submitted that there was no Publication of the defamatory Statement by the Respondent. That publication is a key ingredient of defamation, and, that where a Defendant is not liable for the publication, he cannot be liable for defamation, relying on Okorocha vs. Olumese (1967) FNLR 174. It is submitted that the publication relied upon by the Appellant was the summons issued via Cross River Radio requesting the Appellant to appear before the Public Property and Recovery Tribunal; and, that the Respondent cannot be held liable for the act of the Tribunal. The provisions of section 5(1), (2) and Section 7(1), 7(1)(c) and 7(1)(d) of the Cross River Public Property and Recovery Tribunal Edict No 3 of 1990 were relied upon. It is submitted that prior to the acquisition of the Cooperative Development Bank by the Respondent, the Government of Cross River State had substantial shareholding in it. It was the State’s Bank which informed the invitation to the Appellant by the Tribunal, the Respondent being a public institution or corporation.

It is submitted that since the complaint of the Appellant is predicated on the publication by the Tribunal via radio broadcast and not the communication of the alleged indebtedness by the Respondent to the Tribunal, the case of the Appellant should fail.
It is also submitted that the Appellant did not make out a sustainable case of malicious prosecution against the Respondent. Failure to establish any of the ingredients of malicious prosecution will result in losing the action, relying on Usifo v. Uke (1958) 3 FSC 58; Obi vs. Chukwuma (1964) LLR 105; Aubiri vs. Ehunaku (1960) GLR 167.
Having already submitted that the Respondent was actuated by malice in setting the law in motion against Appellant, the Court is urged to resolve Issue No 2 in favor of the Respondent and dismiss the appeal.

In the Appellant’s Reply Brief, the Appellant submitted that the loan which both the Appellant and Dr. Adeyemi guaranteed was eventually refused by the Respondent, and the refusal communicated to him by letter, marked Exhibit 4. To reconfirm this position, the Appellant wrote Exhibit 6 to the respondent. That in spite of these facts, the Appellant’s name was forwarded to the Tribunal. It is submitted that the Respondent went beyond its moral, social or legal duty to the Tribunal when it published the name of the Appellant considering the fact that the loan was not granted and he consequently had no obligation to the Respondent.

I shall now consider the Issues raised for determination by the parties.

ISSUE NO 1.
The tort of defamation can either be libel or slander, the difference being that the former is expressed in permanent form such as by writing, sign, picture, cartoon, or electronic broadcast; while the latter is spoken. Both forms of defamation share the same features. A Statement (or Statements) which cause a person to be exposed to hatred, ridicule or contempt; or to be disparaged in his profession or trade is defamatory. An imputation which may tend to lower the Claimant in the estimation of right thinking members of society generally or to be shunned or avoided is defamatory of him. The test is whether a reasonable man with ordinary intelligence will likely understand the words as defamatory.

The essential ingredients of the tort of defamation are:
1. The words must refer to the claimant
2. The words must be defamatory or convey defamatory imputation;
3. The publication must be false;
4. It must be the Defendant who published the words:

The onus is on the Claimant to prove he was the one referred to in the alleged libel. See: OKAFOR V. IKEAYI (1979) NSCC 43: CLR 4(a) (SC); GUARDIAN NEWSPAPER V. AJEH 2011 CLR 4 (f) (SC). BANK OF THE NORTH V. AKINTOYE (1999) CLR 11(p) (CA).

In the judgment appealed against, the trial court found that the words in issue as announced over the radio did refer to the Appellant; and that the said words did convey defamatory imputation. The trial court also found and held that the publication was false. At page 88 of the Record of Appeal, the trial Judge said:
“I therefore find and hold that it was not true as published in the radio announcements that the Claimant was owing the Defendant N1 Million at the time. The publication was false.”
It was also the finding of the trial court that the publication of the false information regarding the Appellant was in two parts – by the Respondent to the Tribunal; and, by the Tribunal which initiated the summons to the Appellant through radio announcements. The learned trial judge considered the pleadings and evidence of the Respondent to the effect that the Respondent was under obligation by law to forward the names of its debtors, including the Appellant, to the Tribunal, thereby raising the defence of qualified privilege. The trial court then held as follows:
“In the end result I have found that the forwarding of Claimant’s name by the Defendant to the Tribunal/Court was privileged and cannot be defamatory of the Claimant as there was no publication of it, properly so called, to the Tribunal/Court.”

The Appellant had pleaded in Paragraph 33 of his Amended Statement of Claim as follows:
The Defendant acted in absolute bad faith with the intention of embarrassing the Plaintiff.

PARTICULARS OF BAD FAITH
(a) The Defendant knew from 1992 that the plaintiff was not owing them N1,000,000.00 or any amount at all.
(b) The Defendants had expressed their willingness to embarrass the plaintiff in the letter of April 1992.
(c) The Defendants had refused to apologise and compensate the Plaintiff.
(d) The Defendant did not publish the name of Dr. Adeyemi one (sic) the purported guarantors.
(e) The Defendant knows that the Plaintiff is not its customer.
In response, the Respondent pleaded at paragraphs 22 and 23 of the Further Amended Statement of Defence as follows:
22. The defendant strongly denies the averment in paragraphs 31, 32 and 33 of the statement of claim and shall put the plaintiff to the strictest proof thereof at the trial.
23. In further answer to paragraph 33 the Defendant states that it was not a term of the Guarantee that the Defendant could seek recovery from plaintiff without simultaneously seeking recovery from another Person, Dr. Adeyemi.
I shall proceed to examine the evidence proffered before the lower court in proof of these averments.
Uma Dickson was a long standing customer of the Respondent. In the course of business, Uma Dickson, as Uma & Company Nig., applied for a loan of N1 million from the Respondent for the importation of printing machines. Among the requirements of the Respondent for the grant of the loan was the provision of 2 guarantors. The Appellant and one Dr. Adeyemi signed the guarantor’s forms on his behalf, and, he submitted the said forms together with other requirements for the grant of the loan. Exhibits 2 and 3 were the said guarantor’s forms executed by the Appellant and Dr. Adeyemi respectively, dated 14th May, 1991. Unfortunately, the loan application was rejected, and, the loan not granted. The Respondent returned the documents submitted in respect of the loan but held onto the executed guarantees.
Concerning the said guarantee, the Respondent had pleaded in paragraphs 8 and 11 of the Further Amended Statement of defence thus:
8. The facts averred in paragraph 3 of the statement of claim are substantially false and misleading. Defendant denies same. In further answer thereto, Defendant states that plaintiff signed a Guarantee for Uma S. Dickson for all advances, loans, overdrafts and all financial accommodation which the Defendant might give/have given to the said Uma S. Dickson, but in any case not exceeding N1m (One million Naira).
Plaintiff was not to pay the Defendant N1m at all events but only in the event of Mr. Uma’s indebtedness being up to that sum. Defendant hereby pleads the Guarantee dated 14th May, 1991 and shall rely on same at the hearing of this case.
11. (a) Defendant admits paragraph 14 of the statement of claim but states further that it did not return the Guarantee which the plaintiff gave to the defendant concerning Mr. Uma Dickson.
(b) The Defendant shall contend that despite the failure of the loan, the Guarantee was still valid and subsisting against the plaintiff for other financial accommodation since it was a continuing security covering all present and future loans, overdrafts, advances or other financial accommodation granted or to be granted by the defendant to Mr. Uma S. Dickson. The Defendant states that in any event the overdraft to Mr. Dickson was made in July, 1991, based on the Guarantee which had already been given to the plaintiff by Defendant and by that time even the title deeds/document were not returned to Mr. Uma Dickson.
Ime Isang, Esq., Manager in the Respondent Bank testified as DW1. Her written deposition was Exhibit 8. She stated as follows in paragraphs 6 – 11:
6. That the said Mr. Samuel Uma Dickson sometime in May, 1991 applied for a loan of N1m (one million Naira) from the Defendant.
7. To facilitate the consideration of this loan and in order to secure repayment of the facility, the Defendant demanded from the plaintiff, the provision of two Sureties/Guarantors, among other conditions.
8. In further prosecution of this request, the said Mr. Dickson voluntarily nominated the Claimant and one Dr. Adeyemi to stand for him as his Guarantors. Consequently, he gave them the Guarantee Form prepared by the Defendant which they signed.
9. By the said Guarantee, the Plaintiff and the said Dr. Adeyemi undertook to repay all advances, and continuing advances and liability as may from time to time be made to the said Mr. Dickson by the Defendant.
10. That by the said Guarantee, the Claimant also agreed that, “to give effect to the guarantee, the Defendant may act as though the Claimant was the principal Debtor”. Consequently, the claimant was liable as a Principal Debtor for the debt of Mr. Uma Dickson.
11. That although the one million Naira loan was not eventually given to the said Mr. Dickson, while awaiting the grant of the N1m loan, Mr. Dickson enjoyed credit facilities in contemplation of the loan. These facilities were given upon the guarantee aforesaid. Regrettably and unfortunately however, the said Mr. Dickson defaulted in repayment.
The said guarantee stated that it is given:
“In consideration of your from time to time making or continuing advance to, or coming under liabilities or discounting bills for or otherwise giving credit or accommodation or granting time for as long as you think fit to Uma and Company (Nigeria), 25 ATAMUNU STREET CALABAR (hereinafter called “the Principal”) either alone or jointly with any other person or Persons if the undersigned hereby guarantee the due payment, two days after demand in writing, of all advances, liabilities, bills and promissory notes, whether made, incurred, or discounted before or after the date hereof , to or for the Principal, either alone or jointly with any other Person or persons, and also all bills, Promissory notes or guarantees held by you bearing the Principal’s signature together with interest, commission, and other Banking charges including legal charges and expenses. Provided always that the total amount which I shall be liable to pay under this guarantee shall not exceed N1, 000,000.00 (ONE MILLION NAIRA)…”
The evidence proffered revealed that as far back as 1990, Uma & Company Nigeria had an overdraft facility with the Respondent. Exhibit 9, dated 24th February, 1992, is a letter from the Respondent to Uma & Company Nigeria, which referred to the said facility as being granted in 1990. This facility is also referred to in Exhibit 6, which is a letter dated 11th June, 1992, written by Uma Dickson as Chief Executive Officer of Uma & Company Nigeria to the Respondent in response to their demand letter of 23rd April, 1992, Exhibit 5.
Exhibit 6 States in its 4th Paragraph as follows:
“We also wish to inform you that our inability to pay back this overdraft was as a result of your rejection of the said loan as the purported overdraft was granted to us on the strength of the (N100,000) One hundred thousand Naira Fixed Deposit we had with the bank as at then and in anticipation of the loan.”
Under cross examination on 19/5/2009, DW1 admitted that:
A customer can use money in a fixed deposit account to secure a loan and overdraft but he cannot get a loan.
Uma Dickson who testified as PW2, stated in paragraph 10 of his written deposition, adopted as his evidence on 20/5/2009, as follows:
“That I wrote to the Defendant that the Claimant did not guarantee any loan for me and that my overdraft was guaranteed or secured by my fixed deposit.”
PW2 was not cross examined on this piece of evidence at all.
The overdraft facility was in existence before the loan application was made. The guarantee was executed in respect of the loan application, as a necessary requirement. DW1 had testified that:
6. That the said Mr. Samuel Uma Dickson sometime in May, 1991 applied for a loan of N1m (One million Naira) from the Defendant.
7. To facilitate the consideration of this loan and in order to secure repayment of the facility, the Defendant demanded from the Plaintiff, the provision of two Sureties/Guarantors, among other conditions.
This evidence of DW1 underscores the fact that the guarantees provided by the Appellant and by Dr Adeyemi were tied to the loan application.
It is not in evidence that provision of a guarantee was either ever requested for, or ever in the picture as a pre-requisite for the grant of the overdraft facilities to Uma & Company Nigeria. DW1 had admitted under cross examination that overdrafts are distinct from loans. Therefore the guarantees provided by the Appellant and by Dr Adeyemi cannot be said to have been a condition for the grant of the pre-existing overdraft facility or for the grant of subsequent overdraft facilities, which were not in the picture at the time the guarantees were executed. The guarantees could not therefore have come into effect without the corresponding grant of the loan to which they were tied.
PW1 in evidence had said that –
“…the Claimant did not guarantee any loan for me and that my overdraft was guaranteed or secured by my fixed deposit.”
By failing to cross examine him on this score, it is my view that the Respondent did not challenge but acknowledged that the overdraft facility granted to Uma Dickson as Uma & Company Nigeria, was not in direct consequence of the guarantee executed by the Appellant and Dr. Adeyemi.
The lower court had considered the efficacy of the guarantee given by the Appellant in relation to the overdraft facility and found at page 86 of the Record of Appeal as follows:
“But was there really a contract of guarantee between the Claimant and the Defendant on the facts of this case. Mr. Uma’s application for the N1 million loan and all the security he offered was what it was, an application. In law of contract terms, it was an offer. The Defendant rejected the application vide Exhibit 4. In law of contract terms the Defendant rejected Mr. Uma’s offer. Exhibit 2, Claimants (sic) guarantee, was part of that offer which the Defendant rejected. Everything that went with that application/offer ended with Exhibit 2 which rejected them all. Agreed, as stated at paragraphs 9 and 10 of Exhibit 8 that the Claimant said the guarantee will cover present and future facilities given by the Defendant to Mr. Uma Dickson, but that was subject to the Bank accepting the offer and granting Mr. Uma’s application for the loan of N1 million. In fact, Exhibit 2 could not take effect until the N1 million loan was granted to Mr. Uma by the Defendant because it was part of the offer made for the N1 million loan. The Defendant cannot reject the offer of Mr. Uma for the N1 million loan and by the same transaction which it rejected constitute a contract between the Defendant and a guarantor of the rejected offer.
From the above it is clear that there was no contract between the Claimant and the Defendant based on Mr. Uma’s offer to be granted a loan of N1 million which offer the Defendant rejected.
The learned trial Judge was right in his summation.
Having refused the loan application to which the guarantee was tied, the Respondent cannot turn around to now Claim the guarantee was meant to secure all financial advances made by them to Uma and Company Nigeria, prior to and subsequent to the execution of the guarantee by the Appellant and Dr. Adeyemi.
It follows therefore, that the Respondent had no business regarding the Appellant as at all indebted to them. The Respondent had refused the loan application, which was the basis for the guarantee. All financial advances as covered by the guarantee were in relation to the loan applied for, which had been refused. The guarantee cannot now be said to have covered the grant of a pre-existing facility or a subsequent facility to Uma and Company Nigeria, without the knowledge and prior consent of the Appellant. The Respondent cannot, surreptitiously, I must say, turn around to claim other uses for the guarantee.
Exhibit 9 stated the debit balance of the facility, as at 24/2/1991, to be N140, 817.01. As at 23/4/92, the debit balance on the facility was N146, 883.01, see Exhibit 5. The Appellant pleaded in paragraphs 21 and 22 of his Amended Statement of Claim as follows:
21. The plaintiff further avers that he tune (sic) to the Cross River Radio and his wife and him heard his name being blared on air to appear before the public fund recovery Tribunal in the following terms:

‘PUBLIC ANNOUNCEMENT’
The following Debtor customers of the First City Monument Bank Plc are hereby summoned to appear before the Public Property and Recovery Tribunal on 20th October 1994 at 9.00 a.m. prompt….. Barrister Joe Odey-Agi – Amount due N1, 000,000.00 (One Million Naira)…”
22. The Plaintiff avers that the announcement continued unabated for one week.
In reply, the Respondent pleaded in paragraph 16 of their Further Amended Statement of Defence as follows:
16. As a response to paragraphs 19, 20 and 21 of the statement of claim, Defendant avers that by the Guarantee, plaintiff was liable as Principal Debtor for any indebtedness incurred by Mr. Uma Dickson from the Defendant. It was in this regard that the plaintiff was summoned, along with other debtors to the Defendant, notwithstanding how the debt arose, to appear before Public Funds Recovery Tribunal. N1m was the maximum amount which the plaintiff could owe the Defendant under the Guarantee and as at the time the plaintiff was summoned to the Tribunal, Mr. Uma Dickson was still owing the Defendant the sum of N326, 133.20 overdraft granted him on July, 1991.
(b) The defendant avers that after the names of the Debtors were submitted to the Public Funds Recovery Tribunal, the Defendant did not control or supervise the work of the Tribunal including issuing hearing notices or announcement on the Radio for the debtors to appear before the Tribunal.
DW1 also testified that as at the time the Appellant was summoned before the Tribunal, the debit balance on the overdraft facility granted to Uma and Company Nig. Ltd. was N326, 133.20. See paragraph 18 of Exhibit 8.
In other words, as at October, 1994 when the summons to the Appellant were issued by the Tribunal through radio announcements, the debit balance on the facility was nowhere near N1 million. But, the Respondent, by their own admission, went ahead to submit the Appellant’s name to the Tribunal as owing them N1 million! From the records kept by the Respondent itself, the information it supplied to the Tribunal was false.
It is clear therefore that the Respondent had no rational reason for forwarding the Appellant’s name to the Tribunal. The duty the Respondent had to the Tribunal was to forward names of its debtors. The Tribunal had corresponding interest in receiving such information. But, the Appellant was not a debtor of the Respondent. Indeed, he was not at all indebted to the Respondent. The Respondent cannot rely on a guarantee executed in respect of a loan application, which it had refused, to seek to recover all pre-existing and subsequent financial advances made to its customer, Uma and Company Nigeria.
The broadcasts were made based on the information provided by the Respondent. The information has been shown to be entirely false, utterly unreasonable and completely irrational.
The defence of qualified privilege is not necessarily defeated by the falsity of information published. But, the defendant must have acted with right and honest motives. In Obasuyi v. Ezeighu (supra), this Court per Salami JCA (as he then was) said:
“Actual or express malice is not restricted to personal spite and ill-will; it also includes every inexcusable intention to inflict injury on the Person defamed, or put in the words of Brett, L.J., in Cleark v. Molyneux 3 Q.B.D. 237 of 247 “every wrong feeling in a man’s mind.”

The Respondent has not shown that its motives were above board and without malice. The evidence shows that the Respondent had all the relevant records; and, knew that the information it had provided to the Tribunal was incorrect. But, it went ahead to deliberately supply that erroneous information to the Tribunal. The Respondent owed no duty to recklessly provide the Tribunal with such mendacious and inexcusably baseless information. There were therefore no justifiable legal grounds for the publication of the Appellant’s name to the Tribunal as being the Respondent’s debtor. I agree with the Appellant that the action of the Respondent was intentional and did not show good faith.
The defence of qualified privilege cannot avail the Respondent in this circumstance. See also Iloabahcie v. Iloabachie (supra). I therefore resolve issue No 1 in favor of the Appellant.

Issue No 2.
In an action for malicious prosecution, the plaintiff must plead and show by evidence that he was prosecuted by the defendant. In this regard, it must be shown clearly that the defendant set in motion against the plaintiff, the law leading to a criminal charge. Secondly, as a result of the prosecution aforementioned the plaintiff was discharged and acquitted, that is to say, that the prosecution was determined in the plaintiff’s favour. Thirdly, the plaintiff must plead and satisfy the court by evidence that the prosecution by the defendant was completely without reasonable and probable cause. Finally, that the prosecution was as a result of malice by the defendant against the plaintiff. All the four elements above must be present for successful action for malicious prosecution, and the onus is always on the plaintiff to prove each and every one of them.

Malicious prosecution is not limited to criminal proceedings. To prosecute within the purview of this tort is, in essence, to set in motion the law whereby an appeal is made to some person with judicial authority with regard to the matter in question: and, to be liable for malicious Prosecution, a person must be actively instrumental in setting the law in motion. See; Usifo 11 v. Uke (supra); Balogun v. Amubikahun (1989) 3 NWLR (Pt. 107) 18; Bayol v. Ahemba (1999) 10 NWLR (PT 623) 381.

In an action for malicious prosecution, the requirement that proceedings must terminate in favour of the plaintiff does not necessarily mean that the plaintiff was discharged on the merits. It is sufficient that the plaintiff was discharged or the Attorney General enters a nolle prosequi staying further proceedings, or where the plaintiff was acquitted of the charge in question but convicted of a lesser charge.

It is not in dispute that it was the Respondent that forwarded the Appellant’s name to the Tribunal as its debtor. In consequence, the Tribunal issued summons against the Appellant to compel his appearance. PW1 had said in evidence that:
“The announcement was during a Military regime. Defendants wanted me to be imprisoned.”
A defendant, who maliciously makes false Statement against a plaintiff and causes a judicial act, like the issue of a summons or warrant of arrest, to the prejudice of the plaintiff, will be liable for malicious prosecution even though he may not technically have been the prosecutor in the strict sense. See: Balogun v. Amubikahun (supra).

The lower court therefore rightly held that the Respondent was actively instrumental in setting the law in motion against the Appellant.
The learned trial Judge also rightly held, having regard to the evidence before the court, that the Respondent had no reasonable cause to forward the name of the Appellant to the Tribunal.

In Balogun vs. Amubikahun (supra) the Supreme Court per Belgore JSC (as he then was) said:
“The reasonable and probable cause to my mind, entails the Defendant having in his possession as a reasonable and sane person, a set of facts which to an ordinary man would lead to the conclusion that the plaintiff has committed a criminal offence. The belief in criminal culpability of the plaintiff must be honest, based upon full conviction, founded upon reasonable grounds in relation to a set of facts and circumstances which if true would lead every reasonable person to believe the plaintiff has committed an offence. The set of facts and circumstances must lead a prudent man to the conclusion that the plaintiff is probably guilty of the offence he is accused of committing (Herniman v. Smith (1938) A.C. 305).”

The reckless and unreasonable conduct of the Respondent in this regard has already been fully illustrated in this Judgment.
On the issue of malice, the trial Judge also rightly held that:
“Malice must be presumed from prosecuting the Claimant unreasonably. That presumption was not rebuffed by the Defendant.”
The trial Judge however was of the view that the Appellant had not discharged the onus of proving the 4th requirement in an action for malicious prosecution, which is that the matter must terminate in favour of the plaintiff.
The parties both agreed that the suit before the Tribunal against the Appellant was struck out; but, the relevant proceedings were not tendered in evidence. The learned trial Judge, in his judgment at page 94 of the Record of Appeal, said:
“Both sides are therefore agreed that the suit was struck out. I was not told why the Suit was struck out, but is a case which is struck out favourable to the Claimant, or indeed any of the parties to it. The outcome of the matter before the Tribunal is therefore at large. The onus lies on the Claimant to prove this ingredient which he has failed to do by producing a Certified True Copy of the proceedings before this Court.”
But, was the outcome of the matter really at large, having regard to the evidence available before the lower court? I am persuaded that the answer to that question is in the negative. An examination of the pleadings and evidence is instructive; and, demonstrates that the outcome of the matter was not at large.
The Appellant had pleaded in paragraph 29 of his Amended Statement of Claim as follows:
29. The matter came up and the Defendant withdraws (sic) the suit against the Plaintiff without even giving apology. The Plaintiff pleads the proceedings whereby his name was struck out.
The Respondent in paragraph 20 of the Further Amended Statement of Defence pleaded as follows:
20. In answer to the averment in paragraphs 26, 27, 28 and 29 the Defendant states that an amicable, out-of-court settlement was reached mutually between plaintiff and Defendant. This prompted the defendant’s withdrawal of the suit against the plaintiff wherefore the plaintiffs name was struck out. The withdrawal of the suit against plaintiff was based on the amicable settlement and not on preliminary objection raised by plaintiff.
The Appellant who testified as PW1 under cross examination said:
“I did not try to settle the case pending before the tribunal out of court. I appeared before the Tribunal and told them that the loan I guaranteed was not granted and showed the Tribunal the letter rejecting the loan application. I do not have a copy of the proceedings of the Tribunal.”
DW1 in paragraph 24 and 26 of her written depositions said:
24. That in order to maintain cordial relationship with the Claimant who was one of its customers, the Defendant initiated negotiated settlement of the matter before the Tribunal and consequently applied for its withdrawal. The suit was accordingly struck out.
26. That this suit is brought in bad faith because the suit then pending before the Tribunal was withdrawn partly on the understanding that the Claimant would thereby be assuaged of whatever loss he might have suffered in consequence of this suit.”
The proceedings before the Tribunal may not have been tendered: but, the evidence of the parties shows that the suit was struck out upon the admitted application of the Respondent, after the Respondent had initiated negotiations for settlement with the Appellant.
Going by the evidence of DW1 that the suit was struck out “…Partly on the understanding that the Claimant would thereby be assuaged of whatever loss he might have suffered in consequence of this suit”, the Respondent had acknowledged the Appellant had no business appearing before the Tribunal. One can only have regard to recompensing or assuaging another’s hurt feelings or injury when there is an acknowledged sense of guilt or remorse. If the suit was struck out even if partly on this basis, then the suit was terminated in favour of the Appellant.
On the State of the pleadings and evidence, I agree with the Appellant that the finding of the lower court that there was no evidence as to which party the suit ended in favour of is perverse.
I find that the Appellant established all ingredients required to prove the malicious prosecution. I therefore hold that the Appellant has successfully proved defamation and malicious prosecution against the Respondent. If a plaintiff proves that a libel has been published of him without legal justification, his cause of action is complete and he need not prove that he has suffered any resulting actual damage or injury to his reputation, for such damage is presumed. The law is that libel is actionable and proof of damages is unnecessary. See also: Cross River State Newspaper corporation vs. Oni (1995) 1 NWLR (PT 3710 270, (1995) 1 SCNJ 218: Biodun Oduwole & ors. v. Tom David West (2010) 10 NWLR (PT 1203) 598.

The primary aim of damages is to place the plaintiff in as good a position as far as money can do it as if the matter complained of had not occurred. See also: Access Bank Plc. v. Maryland Finance Company & ors LPELR (supra).

The guiding principles for assessment of damages in Claims for libel have been laid down in various judicial authorities. These principles are as follows:
(a) The standing of the plaintiff in society
(b) The nature of the Libel
(c) The made and extent of the publication
(d) The refusal to retract or render an apology to the plaintiff
(e) The value of the local currency
See: Ejabulor v. Osha (1990) 5 NWLR (Pt. 148) 1 at 16: Guardian Newspapers Ltd v. Ajeh (2011) CLR 4(f) (SC), (2011) LPELR-1343 (SC).
In His Highness Uyo 1 v. Nigerian National Press Ltd. & ors. (1974) LPELR-3451(SC) the Supreme Court per Coker JSC said:
“Whatever method of assessment is employed, a great part of the exercise of assessment must be arbitrary but the entire exercise must at all stages have reference to the evidence in the case and the subject-matter of the action.
Such an award must be adequate to repair the injury to the plaintiff’s reputation which was damaged: the award must be such as would atone for the assault on the plaintiff’s character and pride which were unjustifiably invaded; and it must reflect the reaction of the law to the imprudent and illegal exercise in the course of which the libel was unleashed by the defendant.”
See also: Offoboche vs. Ogoja LG (2001) 16 NWLR (PT 739) 459.

The Appellant is a reputable lawyer. He had pleaded that the defamatory false announcements had caused him great injury, disconcerting even his matrimonial home. It is in evidence that, after the defamatory publication, he later become a Senior Advocate of Nigeria. Under cross examination, he said:
“I became a SAN 12 years after. I could have been a SAN long before that but for the announcement. I was elected chairman NBA, Calabar 10 years after that. My reputation was damaged.”
In Access Bank Plc. v. Maryland Finance Company & ors LER (2004) CA/L/520/99 (2005) 3 NWLR (PT 913) 460 this Court per Aderemi JCA said:
“In modern days when good reputation is a scarce commodity among mankind possession of same by anybody is an invaluable asset which must be jealously guarded in the comity of good and virtuous people.”
The Appellant as PW1 said that the offending announcements went on for one week and, of a time when N1 Million was a lot of money. It has been established that the broadcasts were aired through the Cross River State Radio.
The Appellant submitted that the Cross River State Radio has a coverage that transcends Cross River State. He seeks an apology, as well as exemplary and general damages.
I firmly believe the Appellant is entitled to an apology from the Respondent.

Exemplary damages are usually awarded whenever the defendant’s conduct is sufficiently outrageous to merit punishment, such as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like. See: Eliochin (Nigeria) Limited & Ors v. Mbadiwe (1986) 1 NWLR (Pt. 14) 147: (1986) ANLR 1: Odogu v. Attorney General Federation [1996] 6 NWLR (PT. 456) 508.

The pleadings of the Respondent and the evidence of DW1 reveal that the Respondent did apply to withdraw the suit against the Appellant before the Tribunal, opting for an out of court settlement. The matter was thereupon struck out. To my mind, although the Respondent never formally apologized to the Appellant, their application before the Tribunal to withdraw the matter in the circumstance of the case does, somewhat, shows a measure of remorse. Exemplary damages may not therefore be appropriate. The Appellant is however entitled to general damages.
Accordingly, it is hereby ordered as follows:
(a) The Respondent is hereby ordered to publish in one National Daily Newspaper; and cause to be broadcast over Cross River Radio for seven days an apology to the Appellant and retraction of the malicious and false publication.
(b) N5, 000,000.00 (Five Million Naira) is awarded as general damages against the Respondent and in favour of the Appellant for false and malicious publication.
(c) N2, 000,000.00 (Two Million Naira) is awarded against the Respondent and in favour of the Appellant as general damages for malicious prosecution.
(d) Costs of N50, 000.00 are also awarded against the Respondents in favour of the Appellant.

UZO I. NDUKWE-ANYANWU J.C.A.: I read the draft of this judgment just delivered by my learned brother Onyekachi A. Otisi, JCA. I agree that most right thinking people guard their reputation jealously. My learned brother has adequately addressed all the issues articulated by the parties and reached the right decision.
This appeal is meritorious and is therefore allowed. I abide by all the consequential orders contained in the lead judgment including that, as to costs.

JOSEPH TINE TUR, J.C.A.: I have read the judgment just delivered by my learned brother Lord ONYEKACHI A. OTISI, JCA and I concur with the conclusions arrived at. I shall add the following comments of mine. At page 87 lines 18-29 of the printed record the learned trial Judge held as follows:
“If indeed a lesser sum was advanced to Mr. Dickson based on Exhibit “2”, why did the Defendant send the name of the claimant to the Tribunal as owing N1 Million and not the lesser sum advanced. Even in Court on 19th May, 2010 DW1 stated that the claimant was still owing the Defendant N320, 000.00 which the claimant guaranteed for Mr. Dickson. Where then did the N1 Million announced on radio come from, I was not told.
I therefore find and hold that it was not true as published in the radio announcements that the claimant was owing the Defendant N1 Million at the time. The publication was false.”
Having found that the radio announcement that the appellant was indebted to the respondent in the sum of One Million Naira was false, what is the effect of such a finding in this appeal? In Gatley on Libel, 9th edition page 46 to 47 paragraph 2.21:
“2.21 Insolvency and credit: While it is not defamatory, without more, to say that someone owes money, for that “is to say what is true of every house-holder… on most days of the months” it is defamatory to say that any person (whether or not he is a trader or in business and including a corporation) is insolvent, or cannot or will not pay his debt, or has delayed paying his debts. No element of misconduct is required; even if delay in paying or inability to pay a debt is the result of misfortune, to impute such delay or inability to someone would tend to injure his credit in a financial sense, which the law protects as part of his reputation. A statement may be defamatory without imputing actual insolvency. It is defamatory to suggest that the plaintiff is given to refusing or delaying to pay his debts in the ordinary and proper course, and it may therefore be defamatory of a person to say that he has relied on the Statute of Frauds or the Statute of Limitations in order to avoid paying a just debt. It is certainly defamatory to say of a person that he has taken any deliberate action to avoid paying his debts. If is defamatory to impute future insolvency to the plaintiff and may be so to state that he was once in pecuniary difficulties.”
At paragraph 16.16 page 430-437 (supra) the learned authors put it as follows.
“16.16 unreasonableness of claimed belief may be evidence of malice: All this is not to say that a defendant who asserts a belief that others find absurd will necessarily succeed in the defence of privilege for the unreasonableness of the belief may lead the jury to reject his contention that in fact he holds it. Furthermore, where the defendant purposely abstains from inquiring into the facts or from availing himself of means of information which lie at hand when the slightest inquiry would show that the imputation was groundless, or where he deliberately stops short in his inquiries in order not to ascertain the truth, a jury may rightly infer malice.”

On the issue of publication, Supreme Court held in Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) 285 at 298 paragraph “C” Obaseki, JSC that:
“It is the reduction of libellous matter to writing and its delivery to any person other than the person injuriously affected thereby that is publication. The name of the person to whom delivery of the libellous document was made must be pleaded.”
Furthermore, at page 297 paragraphs “G”-“H” of the judgment his Lordship held that:
“I now go to the main issue in this appeal which is the issue of publication of the libel. An action for libel must fail if publication of the defamatory matter is not proved. This proof must be given by admissible evidence as it is the publication that gives a cause of action. The material part of the cause of action in libel is not the writing, but the publication of the libel. See Hebditch Macilwaine & Ors. (1894) 2 Q.B. 54 per Lord Esher, M.R., per Davey, L.J., at p.64; Bata vs. Bata (1948) WN 366; Thomson vs. Lambert (1938) 2 DLR 545 (SC Canada). The act of publishing the libellous matter constitutes the cause of action. Keefe v. Walsh (1903) 2 I.R. 706.
What then is meant by “Publication?” By publication is meant the making known of the defamatory matter to some persons other than the person of whom it is written.”
Again at pages 299 paragraph “H” to page 300 paragraph “A”-“B” Belgore, JSC (as he then was) also held thus:
“The cardinal principle of libel in law is that there must be publication of libellous matter to a third person other than the person libeled; this is because a person’s reputation is not based on the good opinion he has of himself but the estimation in which others hold him. In the present appeal, could it be said there was a publication? Tom Fetepigi, News Editor of “Nigerian Tide”, never testified that the appellant actually delivered the defamatory matter to him, he merely mentioned that he received it from a reporter – whether named or not is not relevant – who was not called as a witness. Fetipigi’s testimony, at best, is hearsay evidence which is inadmissible by the rules or evidence. Apart from this there was no publication; and in law this is no evidence of publication for purposes of libel. Publication directly to a man defamed, without more is no publication (Pullman v. Hill (1891) 1 Q.B. 527).”

At page 87 lines 30 to page 88 lines 1-11 of the printed record the learned trial Judge found publication proved as follows:
“I will now consider the next ingredient of the tort of defamation: Publication. I must remind myself that there are two publications here; one from the Defendant to the Tribunal and the other from the Tribunal by radio announcements. The Defendant says, and that was not refuted or contested by the Claimant, that it forwarded the claimant’s name to the Tribunal as one of the Defendants debtors. I have held that that sending of the claimant’s name to the Tribunal was wrong because the claimant was not owing the Defendant. At paragraph 16 of the statement of defence and paragraphs 21 and 22 of Exhibit “8” the Defendant said it was under obligation by the law to forward the name of the Claimant to the Tribunal being one of its debtors. That raises the defence of qualified privilege.”
At common law every republication of a libel is a new libel and, if committed by different persons, each one is liable as if the defamatory statement had originated from him. See Morse vs. Times Republican Co. (1904) 124 lowa R 700 at 717 quoted with approval in Truth (N.Z) Ltd. v. Holloway (1960) 1 WLR 997 at 1002-1003 and Gatley On Libel (supra) paragraph 6.26 pages 150-152.

The appellant could have proceeded against the respondent and or Cross River Radio for republishing libellous matter from the respondent. In my humble opinion even if the respondent was under a legal duty to furnish the names of her debtors to the Public Funds and Property Recovery Tribunal, no such duty extended to the furnishing of the names of those who were neither her debtors nor guarantors of her customers indebtedness. See Economides v. Thomopulos (1956) 3 FSC 7 at 11-12.
The appellant led sufficient evidence to show that the respondent acted maliciously by forwarding his name to the Tribunal as a debtor or guarantor to enable the Tribunal investigate and assess the appellant’s indebtedness in the light of the false information given to the Tribunal. See Economides v. Thomopulos (supra) page 12-13. Paragraph 16.13 of page 434 of Gatley on Libel and Slander (supra) reads as follows:
“16.13 Untruth, privilege and malice: Where words are published on an occasion of qualified privilege the mere proof that they are untrue is not malice. But proof that the defendant published the words without an honest belief in their truth is normally conclusive evidence of malice. A positive belief in the truth of the statement will not necessarily be conclusive as to the absence of malice because the defendant may have acted from an improper motive in making the statement, though this is an inference which the Court should be slow to draw.”

For these and the fuller reasons given by my Lord, I also allow this appeal. I set aside the judgment of the lower court and abide by the orders made by my Lord.

Appearances

Mohammed Shuai’bu Esq. For Appellant

AND

Dr. J.A. Dodo For Respondent