MR. SAMUEL ONWURAH & ORS v. MR. MICHAEL NWOZOEKWE NWUMEH & ANOR
(2016)LCN/8464(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of April, 2016
CA/E/63/2008
RATIO
TORT: DEFAMATION; WHEN WILL A PUBLICATION BE DEFAMATORY IN NATURE
If a matter which on the face of it is capable of being regarded as defaming a particular person, who is mentioned by name, is proved to have been published to any one whosoever, the tort of libel is committed. But if the matter on the face of it is not capable of being regarded as defamatory, or if defamatory, it cannot be regarded as defaming a particular person, the person to which it was published must possess knowledge which would suffice to enable him to realise that the matter was defamatory or defamatory of the claimant as the case may be. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
TORT: DEFAMATION; DEFENCES AVAILABLE TO A CLAIM OF DEFAMATION
There are a number of defences available to a claim of defamation which include justification, fair comment, privilege which may be either absolute or qualified. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
TORT: DEFAMATION; HOW SHOULD THE DEFENCE OF JUSTIFICATION BE PROVEN
A defendant willing to rely on the defence of justification must establish by evidence, the truth in his publication even if he acted out of spite. This is because an indiscriminate affliction of truth on a person is not actionable merely because people think worse of a person when they hear the truth about it. For a defence of justification to hold water in Court, it must be true in substance. See Prophet Ifeanyi Emeagwara v Star Printing & Publishing Company Ltd & Ors (2000) 5 SCNJ 175.
Everything in the defamatory publication which adds weight to the imputation is material. It is essential for the plaintiff to give particulars of any defamatory meaning which is not the plain, ordinary meaning of the words, so also must the defendant make clear and explicit the meaning he seeks to justify. The standard of proof of justification is one of balance of probabilities. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
TORT: DEFAMATION; HOW SHOULD THE DEFENCE OF QUALIFIED PRIVILEGE BE PROVEN
For the defence of qualified privilege to avail them, they have to prove that they acted honestly and without malice. Malice means use of the privileged occasion for some improper purpose. It has been defined by the learned author Gatley in Libel and Slander, 11th Ed. On Pg. 428 thus:
“malice means making use of the occasion for some indirect purpose. If the occasion is privileged it is so for some reason, and the defendant is only entitled to the protection of privilege if he uses the occasion for that reason. He is not entitled to the protection if he uses the occasion not for the reason which makes the occasion privileged, but for an indirect or wrong motive.”
A privileged occasion is an occasion where the person who makes a communication has an interest, or a legal, social or moral duty, 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. See Atoyebi v Odudu (1990) 6 NWLR (Pt.157) 384.
When a letter is addressed to a particular person, the writer is not as a general rule responsible except for a publication to that person. If it is stolen and published by the thief, the writer will not be liable but if the sender knows or ought to know that the letter will probably be read by some person other than the addressee, he will be responsible if the letter is read by that person. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
1. MR. SAMUEL ONWURAH
2. MR. CHUKWUNENYE ADUM
3. MR. OLUCHUKWU NWIBE Appellant(s)
AND
1. MR. MICHAEL NWOZOEKWE NWUMEH
2. MR. NWEKE AKABUEZE Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Anambra High Court, Awka delivered on 22/5/2006 by Hon. Justice P.C. Obiorah wherein His Lordship gave judgment in favour of the Respondents. The facts that led to this appeal are as follows:
?On or about 27/09/2004, the Appellants, then Defendants at the Court below, wrote a letter alleging that the Respondents who were Plaintiffs at the Court below, were making trouble for the Appellants’ families by laying claim to a heritage called Ngwulu-be-Gbuga belonging to the families of the Appellants which the Respondents had no right to since they did not share any ancestral lineage with the Appellants. The letter stated that the Respondents even instituted an action for the declaration of their right to the Ngwulu-be-Gbuga in the Awka division of the Anambra State High Court. The letter stated further that the Respondents’ ancestor, Nwaonwanegbu was from Omenife family. That Okukwa, Amansea was taken to the Ugorji household of the Appellants’ extended Ejim kindred, Umunnoke, and he later bought his freedom and
was allowed to live among the Appellants’ kindred.
The letter further stated that the Appellants will take action against the Respondents both before a Court of law and with traditional juju unless the Respondents desisted from these claims.
The Respondents who were plaintiffs at the trial Court initiated an action against the Appellants for defamation of character by summons on 21/12/04 at the High Court of Anambra State. During the trial, The Respondents called three witnesses-PW1-PW3, and tendered 7 Exhibits. The Appellants called four witnesses viz- DW1-DW4.
At the close of trial, judgment was given in favour of the Respondents.
Dissatisfied with the judgment of the Court below, the Appellants have initiated this appeal by a Notice of Appeal filed on 30/05/06 and transmitted records on 26/2/08 praying this Court to set aside the judgment of the trial Court. Appellants’ brief was filed on 11/7/08 which deemed filed on 23/9/10. Appellants also filed a Reply brief on 12/11/10. The Respondents’ brief was filed on 28/10/10 which encompassed a notice of Preliminary Objection.
At the hearing of this appeal,
Respondents? counsel submitted that counsel had replied the Preliminary Objection in the Appellants? reply brief and urged this Court to dismiss same. This Court observed that the records were out of time which meant that there was no record before the Court. Appellants? counsel applied orally for extension of time to compile and transmit records to this Court. Respondents? counsel submitted that he had no objection but withdrew the Respondents? preliminary objection on terms of N100,000 costs because the preliminary objection had been raised since 2008 and the Appellants refused to do their part. This Court observed that since the Court is a Court of equity and justice, it was expedient to avoid further delay by granting the motion for extension of time and granted the Order as prayed deeming the records transmitted on 26/02/08, with N40,000 costs to the Respondents against the Appellants. The Preliminary Objection filed by the Respondent on 28/10/10 was struck out having been withdrawn.
?In the Appellants? brief settled by Ude Ifeanyi Udogu, Esq, two issues were identified for determination as follows:
1. Whether the trial Court was right in considering the issue of express malice and finding it proved where the plaintiffs did not deliver a reply alleging such malice and giving particulars to the facts from which such malice relied upon to support that the statements complained of are statement of fact and therefore true in substance and are fair comment on a matter of public interest.
2. Whether from the totality of the pleadings and the evidence adduced at the trial of the case it is correct to hold as the trial judge did “that the words complained of are defamatory of the plaintiffs in their natural and ordinary meaning”.
In the Respondents’ brief of argument settled by Chukwudi Nwankwor Esq, two issues were also identified for determination in this appeal as follows:
1. Whether having pleaded and given particulars of malice in their statement of claim, it will still be necessary for the Respondents to file, deliver a separate reply containing or encompassing the particulars of the facts and matters from which such malice can be inferred.
2. Whether the words complained
of are defamatory of the Respondents, in their ordinary and natural meaning.
From these issues, I have crystallised a sole issue for determination as follows:
Sole Issue
Whether in the circumstances of this case, the Respondents adequately pleaded and proved that the words complained about are defamatory of the Respondents in their natural and ordinary meaning.
Learned Appellants’ counsel submitted that once the plea of fair comment or qualified privilege is made out, the presumption of malice is rebutted and the burden is then put on the plaintiff to establish express malice which must be established by evidence and it is necessary for the Respondents to deliver a reply alleging such malice and give particulars. Counsel cited Bakare & Anor v Alhaji Ado Ibrahim (1973) 1 All NLR (Pt. 1) 751.
Counsel submitted that the allegations against the Respondents were not contested nor was there any evidence before the Court alleging malice and giving the particulars of the facts from which the malice is to be inferred. Counsel urged this Court to reverse the judgement of the
Court below and dismiss this suit.
Appellants’ counsel contended that there was nothing defamatory about the tone and content of Exhibit A since there was nowhere the Respondents were referred to as slaves or descendants of slaves in the letter. Counsel submitted that one can only glean that the Respondents were laying claim to family land which did not belong to them from the face of the letter.
Counsel submitted further that even if the Respondents chose to rely on the parts of Exhibit A that said their ancestors “bought his freedom” that phrase also exonerates the Appellants, for it is clear from same that a man that has bought his freedom is no longer a slave.
Counsel submitted further that where there is proof that the words complained of are not false, as in this case, a plea of justification is a complete bar to any relief sought by a party who complains of defamation. Counsel cited Registered Trustees of Amorc v Awoniyi (1991) 3 NWLR (Pt.178) 245 at 257.
Learned Respondents’ counsel on this issue argued that the Appellants’ act of writing or publishing Exhibit A despite the pendency of Suit No A/284/03 was with
malicious intent and a desire to harm the Appellants. Counsel cited Newbreed Organization Ltd v J.E. Erhomosele (2006) 5 NWLR (Pt. 974) Pg. 499 at 539. Counsel argued further that if Exh A was not done maliciously, it should have been incorporated into the Appellants? statement of defence in Suit No A/284/03 which was already pending before the Court.
Counsel submitted that failure of the Respondents to deliver a separate reply encompassing particulars which had been incorporated in Respondents’ statement of claim when they were plaintiffs at the Court below and failure to deliver a separate reply is in no way fatal to the Respondents’ case, and the case of Bakare v Ado (Supra) cited by the Appellants was inapplicable in this case. Counsel cited Balogun v Egba Onikolobo Community Bank (Nigeria) Ltd. (2007) 5 NWLR (Pt.1028) Pg. 584 at 610-611.
Counsel submitted further that the purpose of a reply is to raise an answer to the defence of any matter that must be specifically pleaded and since the Respondents were not asserting any new additional facts, it was unnecessary to repeat what had already been pleaded in their statement of
claim in a separate reply. Counsel cited Unity Bank Plc v Buoari (2008) 7 NWLR (Pt. 1086) Pg. 372 at 406-407.
Counsel argued that where a plaintiff merely wishes to deny the allegations in the defence, no reply is needed and none should be served for there is an implied joinder of issue on the defence if no reply is served. Counsel cited Olobudun v Lawal (2008) 17 NWLR (Pt.1115) Pg. 1 at 41.
Counsel submitted that the essence of delivering a reply as contemplated by Order 9 Rule?21 of the High Court Rules of Anambra State is not to answer or debunk every point raised by the Appellants one by one, but to show that the defamation of the Respondents by the Appellants was actuated by malice and the Courts should be minded to do substantial justice and not technical justice. Counsel cited Broad Bank of Nigeria Ltd v Alhaji S Olayiwola & Sons Ltd (2005) 3 NWLR (Pt.912) Pg.434 at 450; Nicholas Bossa v Julius Berger PLC (2005) 15 NWLR (Pt. 948) Pg. 408 at 422; Olabiyan v Oyewole (2008) 5 NWLR (Pt.1079) Pg.114; Obichefu v Governor, Imo State (2008) 14 NWLR (Pt. 1106) Pg.22 at 46.
Counsel submitted that the matter before the trial Court was purely one of
libel and the Respondents have proved that the Appellants libelled them and had debunked the defences of justification and qualified privilege raised by the Appellants.
Learned Respondents? counsel contended that in an action for defamation, the published words complained of must be read as a whole, which was what the learned trial judge did in drawing the only logical inference that the Appellants were provoked by the suit initiated at the High Court by the Respondents which made them publish Exh A. Counsel cited Okolie v Marinho (2006) 15 NWLR (Pt.1002) Pg. 316 at 334; Otop v Ekong (2006) 9 NWLR (Pt.986) Pg.533.
Counsel submitted that a comprehensive reading of Exh A showed that it was a malicious publication meant to cast doubt on the authenticity of the lineage of the Respondents in the minds of those who read it, and it did since PW2 gave evidence that he started to see the Respondents as lesser people because of Exh A.
Counsel submitted that evidence of PW2 as contained on Pg. 53 of the Record not only showed the publication of the libellous material to a third party but also the extent of damage caused by the publication to the
Respondents. Counsel cited Labati v Badmus (2007) 1 NWLR (Pt.1014) Pg.199 at 216.
Counsel submitted that further proof of the publication of Exh A was provided by DW2 when he admitted to reading photocopies of Exh A at the Youths meeting of 26th December, 2004 and the contention of the Appellants that a slave who buys his freedom now has the status of a freeborn is untrue since DW1 told the Court on Pg. 72 of the Record that a stranger and specifically the Respondents do not enjoy full rights in the village,, and the DW2 said he knows the Respondents father was bought into the Ugorji family as a result of the letter.
Counsel gave the definition of a slave according to the Oxford Advanced Learners? Dictionary International Student?s Edition; 21st Century Chambers Dictionary Pg. 1316 and Blacks Law Dictionary 8th Edition Pg.1403. Counsel submitted that a person who is bought or who bought his freedom is a slave and regardless of the Appellants’ contention, the Respondents still suffer discrimination on account of Exh A.
Counsel submitted that the plea of justification and qualified privilege cannot be made available to the
Appellants who knew that their publication was in respect of a matter that is sub-judice .
RESOLUTION
In general, an action lies for the deliberate publication of statements which are false in fact and injurious to the character of another. The law considers such publications 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 unauthorised communications, and affords a qualified defence depending upon 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 the society; and the law has not restricted the right to make them within any narrow limits. See Toogood v Spyring (1834) ICM&R 181; Mamman v Salaudeen (2005) 12 SCNJ 1.
There is no actionable wrong of defamation unless the words are communicated to at least one person other than the plaintiff. The publication
does not necessarily mean in a book or newspaper, but communication to some persons other than the plaintiff. Publication to one person may be sufficient. Let me reproduce here, the letter, the subject matter of this suit as contained on Pg. 3 of the Record.
“UMUOGWO FAMILY
C/O SAMUEL ONWURAH
(ONYEOMA GUE-AGU-AWKA)
UMUNNOKE VILLAGE,
AWKA.
27TH SEPTEMBER, 2004
OMENIFE FAMILY
OKUKWA VILLAGE,
AMANSEA.
AWKA NORTH L.G.A.
SIR,
RESTRAIN MICHAEL NWOZOEKWE NWUME FROM HIS TROUBLE MAKING IN OGWO FAMILY, UMUNNOKE VILLAGE, AMAENYI-AWKA
It is with great pains in our hearts that we the Umuogwo family of Umunnoke village, Awka, write to draw the attention of your family of Omenife family, Okukwa Village, Amansea, to the constant provocations, harassment and annoyance of some of your own, Michael Nwozoekwe Nwume and Co, in our family kindred mentioned above.
Going down memory
lane, you will recall that due to the circumstances that prevailed in those days one of your own called Nwaonwunegbu from Omenife family, Okukwa, Amansea was brought into Ugorji house-hold of our extended Ejim Kindred, Umunnoke, Amaenyi-Awka
As time progressed the said Nwaonwunegbu bought his freedom and later married a wife from Nwekele Awka called Nwumeh. Through Nwumeh, Nwonwegbu Nwumeh. Akabueze has since joined his ancestors and his people at Amansea in spirit.
Our consternation is not with the staying back in umunnoke village, Awka, in Ugorji family by Michael Nwozoekwe Nwumeh but his proclivity in recent times to fermenting serious troubles in our peaceful family of Umuogwo and desecrating our family heritage.
Just recently your Michael Nwumeh in league with his nephew one Nweeke Akabueze started to lay claim of an ancient obu in our family called Ngwulu-be-Gbuga. They claimed that Gbuga was their ancestor and therefore that they are entitled to take part in inheriting the said Ngwulu (Homestead) at Amaenyi- Awka. Nwozoekwe is even claiming the abominable act of a stranger like him to
try to minister to the deity in the Nwgulu-be-Gbuga.
To show that they are serious with what they are saying, they instituted a claim for a declaration of their right to Ngwulu-be-Gbuga against our Umuogwo family members of Umunnoke Village, Awka in High Court Awka in Suit No. A/284/03: Michael Nwumeh and Ors v Samuel Nwanagor and Ors.
There is a saying in Igbo proverb that a foolish fly that has no adviser follows the smell of corpse into the grave. When a man has passed the threshold of sanity, his kinsmen are approached to reproach him because it may lead to handcuffing him if that will bring back sanity to him for his goodness.
We the members of Ogwo family, Umunnoke village, Awka, are ready and prepared to defend our heritage against all persons to every limit including consulting all alusi, iyi and law Court to press our rights. In doing so, we are prepared to pray the alusi, iyi or Court to bond our oppressor(s) his/their image and family known and unknown to wrought vengeance for us. It is because of our realization of the potency of such prayers of the oppressed against the
oppressor that we deem it proper to bring this complaint to the attention of your family to exonerate us from blame should our action in any way effect you to which Nwaonwunegbu then to Akabueze and Nwozoekwe to Nweke Akabueze belong.
Another Igbo proverb has it that ?ekwughi ekwu melu onu ma anughi anu melu nti?
Please refrain your men (family members aforesaid) and warn them to hands off Ngwulu-be-Gbuga of Ogwo family, Umunnoke- Awka, for they are not the descendants of Gbuga or Ogwu.
Thanks.
Yours faithfully,
Sign. Samuel Onwurah Sign. Chukwunenye Adum Sign. Oluchukwu Nwibe
HEAD OF FAMILY, PRINCIPAL MEMBER, PRINCIPAL MEMBER
“FOR AND ON BEHALF OF UMUOGWO FAMILY, UMUNNOKE VILLAGE , AWKA
COPY TO UMUNNOKE VILLAGE, AWKA.
COPY TO H.R.H. IGWE K.O. OKONKWO
OSUOFIA 1 OF AMANSEA”
If a matter which on the face of it is capable of being regarded as defaming a particular person, who is mentioned by name, is proved
to have been published to any one whosoever, the tort of libel is committed. But if the matter on the face of it is not capable of being regarded as defamatory, or if defamatory, it cannot be regarded as defaming a particular person, the person to which it was published must possess knowledge which would suffice to enable him to realise that the matter was defamatory or defamatory of the claimant as the case may be.
There are a number of defences available to a claim of defamation which include justification, fair comment, privilege which may be either absolute or qualified.
?A defendant willing to rely on the defence of justification must establish by evidence, the truth in his publication even if he acted out of spite. This is because an indiscriminate affliction of truth on a person is not actionable merely because people think worse of a person when they hear the truth about it. For a defence of justification to hold water in Court, it must be true in substance. See Prophet Ifeanyi Emeagwara v Star Printing & Publishing Company Ltd & Ors (2000) 5 SCNJ 175.
Everything in the defamatory publication which adds weight to the imputation is
material. It is essential for the plaintiff to give particulars of any defamatory meaning which is not the plain, ordinary meaning of the words, so also must the defendant make clear and explicit the meaning he seeks to justify. The standard of proof of justification is one of balance of probabilities.
The Appellants may be absolved of liability in this case if they can prove that their freedom of communication to disseminate this information is more important than the protection of the Respondents’ reputation. For the defence of qualified privilege to avail them, they have to prove that they acted honestly and without malice. Malice means use of the privileged occasion for some improper purpose. It has been defined by the learned author Gatley in Libel and Slander, 11th Ed. On Pg. 428 thus:
“malice means making use of the occasion for some indirect purpose. If the occasion is privileged it is so for some reason, and the defendant is only entitled to the protection of privilege if he uses the occasion for that reason. He is not entitled to the protection if he uses the occasion not for the reason which makes the occasion
privileged, but for an indirect or wrong motive.”
A privileged occasion is an occasion where the person who makes a communication has an interest, or a legal, social or moral duty, 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. See Atoyebi v Odudu (1990) 6 NWLR (Pt.157) 384.
When a letter is addressed to a particular person, the writer is not as a general rule responsible except for a publication to that person. If it is stolen and published by the thief, the writer will not be liable but if the sender knows or ought to know that the letter will probably be read by some person other than the addressee, he will be responsible if the letter is read by that person. In this case, the Appellants addressed the letter to the Youth Association, and the Umunnoke village any reasonable man should know that a letter addressed to an association and a village should and will be circulated to the members of the Association or village as the case may be. It is the duty of a judge in the first instance to put an accurate interpretation
on the words used, and having done so, to make up his mind whether they are capable of a defamatory meaning or not. It is insignificant in my opinion whether copies of the letter were distributed to the entire public or whether the contents of the letter were read to the entire public. Contents of the letter was communicated to at the very least, all members present at the youth meeting on 26/12/04. The damage is already done. On Pg. 101 of the Record, the Learned trial judge held as follows:
“I have duly considered the words complained of as pleaded in paragraph 4 of the statement of claim and Exh A and applying the test of a reasonable person of ordinary intelligence, I hold that the words complained of are defamatory of the Plaintiffs in their natural and ordinary meaning.”
A false non-defamatory statement may cause damage by influencing the way in which other persons behave towards the Plaintiff. It is only where a desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that malice can properly be found. 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 publications 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. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society. It must be fair and accurate. See Prophet Ifeanyi Emeagwara v Star Printing & Publishing Company Ltd & Ors (Supra); Tsikita v Newspaper Publication (1997) 1 All E.R.655; Williams v Daily Times (1990) NWLR (Pt. 124) 1; Atoyebi v Odudu (1990) 6 NWLR (Pt.157) 384.
I agree with the reasoning of the trial Court on this issue. Where defamatory words are published more extensively than the occasion requires, or maliciously published, the defences of privilege or fair comment are forfeited. See Saraki v Soleye (1972) 2 UILR 271; Oweh v Amalgamated Press of Nigeria Ltd (1957);
Aruna v Taylor( 1977); Okon v The C.O.R Advocate Ltd (1961).
The Appellants in this matter have consistently claimed that there is need to deliver a separate reply to give particulars of express malice. It is trite that the issue of express malice can be raised in a reply as provided by the Rules of Court. Ideally, where no particulars have been filed, no such favourable finding can be found by the trial Court for a plaintiff. “Express malice” otherwise known as malice in fact unlike “technical malice” otherwise referred to as malice in law is never presumed but must be pleaded and be proved by evidence. See N.T.A v Babatope (1996) 4 NWLR (Pt. 440) 75; Ciroma v Ali (1999) 2 NWLR (Pt.590) 317. The Supreme Court, per Ibekwe, JSC expounded In Chief S. B. Bakare v Alhaji Ado Ibrahim (1973) 6 SC 205 at Pg 215, that:
“…in an action for defamation, where it is intended to allege express malice in answer to a plea of fair comment or qualified privilege, we think it is only fair, and indeed, quite in keeping with the principles of justice, that the defendant, whose defence is fair comment or qualified privilege,
ought not to be exposed to any kind of surprise.”
In the circumstances of this case, however, the Appellants cannot claim to be taken by surprise. Particulars of the malice have been clearly spelt out on the face of the statement of claim as reproduced below:
1. The plaintiffs are natives of and resident at Umunnoke village, Awka within the jurisdiction of this Honourable Court.
2. The defendants are also natives of and resident at Umunnoke village, Awka, within the jurisdiction of this Honourable Court.
3. The 1st Plaintiff is the eldest or ?Otochalu? or ?Onye-ishi? of both Umugbuga family and the entire Umunnoke Village Awka, while the 2nd plaintiff is an elderly person, a highly responsible and respectable citizen of Awka town. He (2nd Plaintiff) is also about 75years old and a holder of the prestigious ?ajaghija? title in Umunnoke village, Awka. The 1st Plaintiff is also a holder of the said prestigious “ajaghija” title in Umunnoke village, Awka and the Secretary for a long time now, of the Ayom-na-Okpala Ajaghija
Society.
4. On or about 27th day of September, 2004, the defendants, without provocation, did publish of and concerning the plaintiffs the following wicked, malicious and libellous words vide the letter of 27th day of September, 2004, written to the Omenife family, Okukwa Village?
5. The said above wicked and malicious publication which is hereby specifically pleaded and will be heavily relied upon at trial was not only published to the members of Omenife family of Okukwa village, Amasea, Awka North Local Government Area but was also extended to many citizens of Umunnoke Village, Awka and Awka town in general to wit: Messrs Osita Nwosu, the Chairman of Umunnoke village, Awka, Andre Onyekuba and other officers and members of the Umunnoke Village, Awka, too numerous to mention. The publication was also made to H.R.H. Igwe K.O Okonkwo (Osuofia 1 of Amansea) and others. As if this is not enough, the defendants on or about 15/11/04 further published the said wicked, malicious and libellous word vide a letter or document dates 15/11/04 addressed to Izu Umunnoke village, Awka and copied to Anadumma Umunnoke Lagos,
Ayom-na-Okpala Quarters and others too numerous to mention. The said document where the defendants continued to further malign and defame the plaintiffs is pleaded and will be founded upon at trial. The said letters of 27/9/04 and 15/11/04 were also sent to the plaintiffs by the defendants.
6. The Plaintiffs state further that the said libellous publication was made in utter bad faith to frustrate the plaintiffs from pursuing the case they took out at the Awka High Court against the defendants in Suit No. A/284/2003. Michael Nwumeh & Ors v Samuel Nwanagor & Ors. The said suit is pleaded and will be founded upon at trial.
7. The Plaintiffs state further that they do not know anybody called Nwaonwunegbu from Omenife family, Okukwa, Amansea or any other Nwaowunegbu for that matter. The plaintiffs also don?t know anybody called Nwumeh who is a woman from Nkwelle, Awka. The Nwumeh they know is the father of the 1st plaintiff. He is not from Nkwelle, Awka but from Umogbuga family, Umunoke village, Awka.
8. The plaintiffs state further they are not strangers or descendants of any slave in
Awka town or descendants of slaves as slaves don?t take titles such as the prestigious ?Ajaghija? title or Ozor title. They are never elevated to the status or position of the eldest or ?Otochalu? or ? Onyeishi? of a family, village or town
9. The Plaintiffs are well known in both Umunnoke village and Awka town as lovers of peace and have never caused any troubles in any family called Umuogwo family in Umunnome village, Awka. The only offence committed by the Plaintiffs was that they were two (2) of the Plaintiffs in the hereinbefore mentioned Suit No: A/284/2003, an action taken out to protect the Umugbuga family land, no more, no less. The said action was taken out in a representative capacity and was never taken out in the plaintiff?s personal capacities.
10. By the above wicked, malicious and libellous publication which was also copied or published to the entirety of the Umunnoke village, Awka, Igwe K.O Okonkwo (Osuofia 1 of Amansea) and many other persons too numerous to mention, the Plaintiffs have been portrayed as the descendants of slaves, slaves and strangers
in Umunnoke village and Akwa town, persons who should be isolated, avoided and discriminated against due to their background, antecedents or origin, perpetrators of trouble, people who try to partake in things that do not belong to them, etc. people in fact isolate and discriminate against the plaintiffs due to the said publication. The plaintiffs by the above publication have been greatly disparaged and injured in their persons.
11. By the above said publication, the plaintiffs? reputation, esteem, credit were thus injured and lowered in the eyes of the right thinking members of the public and thus the plaintiffs have suffered serious damages. The plaintiffs are now being castigated and looked down upon by people and those with whom they interact with and the entirety of Awka people.
The position here is that in an action for defamation, failure of the plaintiff to file a reply does not defeat the plaintiff’s action where, there are clear allegations made out in the plaintiff’s claims of an implied malice in which the defendant?s allegations against the plaintiff is found to be groundless. In such a
case where the defence of fair comment or qualified privilege cannot be sustained, the plaintiff is at liberty not to file a reply to the defence. Conversely, the question of “express malice” is not an issue such that the plea is no longer open to the plaintiff if for any misadventure either of the defence is sustained calling for express malice to checkmate it. See Ferdinand Ekpo Mbang V Guardian Newspapers Ltd & Anor (2010) LPELR-4479 CA.
The Appellants in their statement of defence did very little to cast shadow on the claims of the Respondents. On Pg. 103 of the Record, the trial Court observed that:
“Surprisingly, the defendants did not deny that the 1st Plaintiff is the “otochalu” in Umugbuga family and Umunnoke village or deny that both plaintiffs are not “Ajaghija” title holders and most importantly, deny the clear averment in Paragraph 8 of the statement of claim, to the effect that strangers or slaves cannot take such titles or occupy the position of “otochalu.”
It is trite law that parties are bound by their [leadings and that evidence on facts which are
not pleaded go to no issue. In addition, parties are not allowed to set up a different case from their pleadings at trial.
The effect of the defendants’ failure to deny specifically the above crucial statements in their statement of defence, amounts to an admission…”
The need for the plaintiff to file a Reply to the defence of fair comment or qualified privilege in an action for defamation does not per se defeat the plaintiff?s action where there is strong evidence of implied malice. But where the defence of fair comment or qualified privilege is sustained thus rebutting implied malice, the plaintiff cannot fall back upon the plea of “express malice” to defeat the defence of fair comment or qualified privilege since that plea could not have been raised as an issue on the parties pleadings. See Iloabachie v Iloabachie (2005) 13 NWLR (Pt.943) 695; Ferdinand Ekpo Mbang V Guardian Newspapers Ltd & Anor (Supra).
A man has a right to the unimpaired possession of his reputation and good name during his lifetime. Reputation depends on opinion and opinion mainly on the communication of thought and
information from a person to another. Therefore, a person who communicates to another an untrue information which is likely in the natural course of things to disparage the reputation of a third person, is on the face of it, guilty of a legal wrong, and is liable in damages.
There was no reason to publish the contents of the letter outside the Court room. It was used to malign and blackmail the Respondents. I believe the evidence of the Respondents in this regard.
I agree with the following reasoning of the learned trial judge at page 106 of the Record, and I could not have explained the matter better when his Lordship said:
“I am satisfied that the plaintiffs have proved their case on the preponderance of evidence and thus entitled to the reliefs sought. There is no doubt in my mind that the plaintiffs have suffered deprivation, odium or disgrace by the false and malicious imputation that they are strangers or slaves. Even the defendants admitted in their evidence, that strangers do not enjoy full rights in the village. I have considered the extent of the publication of the words complained of which among others, was read in a
village meeting of 26/12/04 and as far as in Amansea, as testified by DW3 and the effect such false and malicious publication will have on the mind of the villagers to whom it was published.
I have also considered the circumstances of the publication which is over a matter that is sub-judice and the fact that the defendants did not show any remorse throughout the trial but rather tried, albeit unsuccessfully, to defend their position. In all, I hold that the plaintiffs are entitled to compensation for the unjustifiable attack to their person and credit by the defendants.”
In the circumstance, I affirm the judgment of Hon. Justice P.C. Obiorah delivered on 22/5/06 in Suit No. A/287/2004 as I also affirm the award of damage against the Appellants. Appeal dismissed. N100,000 costs against the Appellants for the Respondents.
TOM SHAIBU YAKUBU, J.C.A.: Having had the advantage of reading the draft of the erudite judgment rendered by my Lord, HELEN MORONKEJI OGUNWUMIJU, JCA., I am fully satisfied with the resolution of the issues thrown up in the appeal, against the appellants.
I, therefore dismiss the appeal and affirm the judgment of P. C. Obiora, J., in re-suit No.A/287/2004 delivered on 22nd May, 2006. I adopt the award of N100,000 costs for the Respondents, against the appellants.
EMMANUEL AKOMAYE AGIM,?J.C.A.: I had a preview of the judgment delivered by my Learned Brother,?HELEN MORONKEJI OGUNWUMIJU, JCA. I agree with reasoning conclusions and orders therein.
Appearances
U. J. UdoguFor Appellant
AND
Emeka Nwankwo with him, Ebuka UgwuFor Respondent
