VANGUARD MEDIA LTD v. ALI & ORS (2022)

VANGUARD MEDIA LTD v. ALI & ORS

(2022)LCN/16603(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, June 02, 2022

CA/A/436/2011

Before Our Lordships:

Hamma Akawu Barka Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

VANGUARD MEDIA LIMITED (Publishers Of Vanguard Newspapers) APPELANT(S)

And

1. ALHAJI SIDI H. ALI 2. ARC. C. C. ILOZUMBA 3. BARRISTER CHIZOBA NNAGBOH RESPONDENT(S)

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION OF THE COURTS

Jurisdiction is the life-wire of a Court as no Court can entertain a matter where it lacks jurisdiction. It is rudimentary law that jurisdiction is the authority which a Court has to decide matters that are laid before it for adjudication, or to take cognisance of matters presented in a formal way for its determination. The concept or content of jurisdiction as it applies to Courts can mean one of two things:

1. The abstract right of a Court to exercise its powers in causes of a certain class, or

2. The right of a Court to exercise its powers with respect to a particular subject matter.

THE POSITION OF LAW IN ASCERTAINING TERRITORIAL JURSIDICTION OF A COURT

Therefore, in ascertaining territorial jurisdiction, the place of publication of the defamatory material is vital. The writing of the libelous material in itself is not actionable, it is the publication that gives rise to the cause of action. The cause of action in the tort of libel arises where the libel is published: DAIRO vs. UBN (supra) at 143, 156 and 165, EZEUGWA vs. ADIMORAH (1993) 1 NWLR (PT 271) 620, EZEGBO vs. IGBOKWE (2016) LPELR (40784) 1 at 15 and OLUMOROTI vs. IDEMEKO (2017) LPELR (51546) 1 at 37-38.

It is hornbook law that a Court in one State does not have jurisdiction to hear and determine a matter which is within the jurisdiction of another State. See NDAEYO vs. OGUNAYA (1977) LPELR (1967) 1 at 12-14 and RIVERS STATE GOVT vs. SPECIALIST KONSULT (2005) 7 NWLR (PT 923) 145. PER OGAKWU, J.C.A.

THE POSITION OF LAW ON UNTRUE PUBLICATION AS A DEFENCE OF QUALIFIED PRIVILEGE

Now, the defence of qualified privilege is a defence to an untrue publication. However, it can only be claimed when the occasion of the publication is shown to be privileged. An occasion is privileged when the person who makes the documentation has a moral duty to make it to the person to whom he makes it and the person who receives it has an interest in receiving it. The two conditions must exist in order for the occasion to be privileged: ILOABACHIE vs. ILOABACHIE (2005) LPELR (1492) at 9-10. In AFRICAN NEWSPAPERS OF NIGERIA PLC vs. USENI (2014) LPELR (22954) 1 at 21-23, Iyizoba, JCA stated as follows:
“What is meant by the term ‘qualified privilege?’ In First Bank Nigeria PLC v. Aboko (2005) LPELR-7494 (CA), Aderemi, JCA (as he then was) stated:
“The term “Qualified Privilege” would seem to defy direct definition. It seems to me that for a proper understanding of what it connotes, an explanation, in words, is the proper approach. Generally, a Court action for a redress lies in the malicious publication of words or statements that are false in fact and injurious to the character and reputation of the person seeking the redress. The law considers the publication of such false and injurious words or statement as malicious unless it can be established that the person who makes the communication of such injurious and malicious words is a person who has an interest or a duty – be it legal, social or moral – to make it to the person to whom it was made and that the person to whom it was so made has a corresponding duty or interest to receive same. In other words, in law, a communication bona fide, made upon any subject matter in which the party communicating has an interest is privileged and in legal parlance, it is said to have been made on a privileged occasion and therefore a defence of qualified privilege will avail a person who is sued as a defendant in such circumstances. By this defence, a defendant in a libel case is saying no more than that even though the words complained of may be defamatory of the person of whom it was published to the person or persons whom the law recognises as persons who have corresponding interest to receive it, the defendant cannot incur any legal liability if the publication was not actuated by malice. So when the words published are made honestly and without any indirect or improper motive, a person sued as a defendant can legitimately take cover under the defence of qualified privilege, he will be immune from liability. It seems to me that the principle here is founded for the general welfare of the society… ‘ PER OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): There was an action before the High Court of the Federal Capital Territory, Abuja in SUIT NO. FCT/HC/CV/1390/2002: ALHAJI SIDI H. ALI vs. ARC. C. C. ILOZUMBA & ORS. It was an action for defamation. The 1st Respondent herein was the Plaintiff at the lower Court and he claimed the following reliefs in the action:
“(a). The sum of N500,000.00 (Five Hundred Million Naira) [sic] damages for libel published by the Defendants of an [sic] concerning the plaintiff at page 32 of the 3rd Defendant’s Newspaper (Vanguard Newspaper) of 23rd August, 2002.
i) A written apology to the Plaintiff by the Defendants published in three national dailies retracting their earlier publication.
b) A perpetual injunction restraining the Defendants from further publication of and concerning the Plaintiff
c) The cost of this suit.”

The matter was subjected to a full blown plenary trial, based on the pleadings filed and exchanged by the parties; whereat the parties adduced testimonial and documentary evidence. In its judgment which was delivered on 18th November 2010, the lower Court found in favour of the 1st Respondent and awarded the sum of N25,000,000.00 (Twenty-Five Million Naira) as damages for libel with 10% post-judgment interest on the judgment sum until liquidated, as well as written apology to be published in three Newspapers and injunction from further publication of the libelous material or similar libel.

The Appellant herein was the 3rd Defendant at the lower Court. It was dissatisfied with the judgment of the lower Court. It appealed against the same by Notice of Appeal filed on 30th November 2010. In prosecution of the appeal, the Record of Appeal was compiled and transmitted on 2nd August, 2011, but deemed as properly transmitted on 10th February 2014. The Appellant filed its brief of argument on 15th April 2014, which brief was deemed as properly filed on 7th March 2016. The Respondents did not file any briefs of argument and on 23rd January 2019, this Court ordered for the appeal to be heard on the Appellant’s brief alone. At the hearing of the appeal, Dr. I. F. Chude (with Ms. E. F. Olowofela), of Counsel for the Appellant adopted and relied on the Appellant’s brief in urging the Court to allow the appeal. On their part, Ayo Omoleaupen, Esq. for the 1st Respondent and Olanrewaju Yusuf, Esq for the 2nd and 3rd Respondents informed the Court that they did not file any brief of argument.

Let me hasten to state that the absence of a respondent’s brief does not connote that the appeal must willy-nilly succeed. It is abecedarian law that an appellant is to succeed on the strength or merit of the grounds of appeal and issues canvassed in the appeal and not on the absence of a respondent’s brief to answer those issues. An appellant is therefore not automatically entitled to judgment in an appeal simply because the respondent(s) in the appeal neglected to or did not file a brief of argument. Before an appellant can succeed in such circumstances, he has the Legal duty to show by the submissions in support of his appeal and convince the Court that the appeal is sustainable in law. The appellant must succeed or fail on the merits and sustainability of the submissions in his brief of argument; the absence of a respondent’s brief does not change this Legal position. See ECHERE vs. EZIRIKE (2006) LPELR (1000) 1 at 20, AKAS vs. MANAGER (2001) 8 NWLR (PT 715) 436 at 442, AJONYE vs. NWACHUKWU (2011) LPELR (3677) 1 at 9-10, SAIPEM CONTRACTING NIGERIA LTD vs. FIRS (2018) LPELR (45118) 1 at 66 and KANTOMA vs. WUTA (2022) LPELR (57060) 1 at 6-7. The absence of a Respondent’s brief is therefore mere cold comfort for the Appellant. There is no shortcut. It still behoves this Court to consider the merits of the appeal and ascertain if there is any justification in the Appellant’s complaints against the decision of the lower Court.

The Appellant distilled six issues for determination in the appeal, videlicet:
“1. Whether from the pleadings and evidence led there was publication of the alleged words and, the Plaintiff/1st Respondent was defamed by the publication complained of. (Grounds 8 and 12).
2. Whether the trial Court had the territorial jurisdiction to entertain the plaintiff’s suit. (Grounds 1, 2, 3 and 4).
3. Whether the trial Court was right in holding that the 3rd Defendant/Appellant was not entitled to the Defence of qualified privilege. (Ground 5 and 11),
4. Whether there was evidence before the lower Court that the publication was actuated by express malice. (Ground 6)
5. Whether the defence of fair comment availed the 3rd Defendant/Appellant. (Ground 9)
6. Whether the trial Court was right in the award of N25,000,000 (Twenty Five Million Naira only as damages to the Plaintiff/1st Respondent). (Ground 10)”

The issues distilled by the Appellant are idoneous and firmly rooted in the grounds of appeal. It is therefore on the basis of the said issues that I will consider the submissions of learned Counsel for the Appellant and resolve this appeal. I will however start with the Appellant’s issue number two which raises an issue of jurisdiction, which is threshold in nature. I will thereafter consider the remaining issues in related clusters by taking issue numbers three, four and five together since they are of the same genus and then issue numbers one and six.

ISSUE NUMBER TWO
Whether the trial Court had the territorial jurisdiction to entertain the Plaintiff’s (1st Respondent’s) Suit.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the tort of libel arises at the place where the libel is published and so the lower Court did not have the territorial jurisdiction to entertain the action since the testimony of the PW2 is that he read the publication in Lagos. It was therefore asserted that it is the High Court of Lagos State that has jurisdiction to entertain the action vide DAIRO vs. UBN PLC (2007) 16 NWLR (PT 1059) 99 at 143.

RESOLUTION OF ISSUE NUMBER TWO
Jurisdiction is the life-wire of a Court as no Court can entertain a matter where it lacks jurisdiction. It is rudimentary law that jurisdiction is the authority which a Court has to decide matters that are laid before it for adjudication, or to take cognisance of matters presented in a formal way for its determination. The concept or content of jurisdiction as it applies to Courts can mean one of two things:

1. The abstract right of a Court to exercise its powers in causes of a certain class, or

2. The right of a Court to exercise its powers with respect to a particular subject matter.

In the broader sense, jurisdiction refers to the legal authority, the legal capacity to adjudicate at all; while in the narrower sense, it refers to the power over the subject matter of the action. The subject matter of a case has to come within the Court’s jurisdiction. The nature of the subject matter or the territorial limits over which the Court can exercise jurisdiction restricts the exercise of jurisdiction by a Court. it is the territorial jurisdiction, or venue, or the area of authority; the geographical area beyond which the Court’s power, its legal jurisdiction is not to be extended that is in issue in this appeal. See generally DAIRO vs. UBN PLC (supra) at 130, 164-165, FBN LTD vs. ABRAHAM (2008) LPELR (1281) 1 at 15, ALADE vs. ALEMULOKE (1988) LPELR (398) 1 at 12, ONYEMA vs. OPUTA (1987) LPELR (2736) 1 at 39-40 and TUKUR vs. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT 117) 517 at 560-561.

It is the statute which creates a Court that sets out its jurisdiction. The lower Court, the High Court of the Federal Capital Territory, Abuja is established by Section 255 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (1999 Constitution). The jurisdiction of the lower Court is set out in Section 257 of the 1999 Constitution thus:
“257.- (1) Subject to the provisions of Section 251 and any other provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of the Federal Capital Territory, Abuja shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
(2) The reference to civil or criminal proceedings in this Section includes a reference to the proceedings which originate in the High Court of the Federal Capital Territory, Abuja and those which are brought before the High Court of the Federal Capital Territory, Abuja to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction.”
By Section 270 of the 1999 Constitution, a High Court is established for each State of the Federation. Section 3 (2) of the 1999 Constitution stipulates that each State in Nigeria named in the First column of Part I of the First Schedule to the 1999 Constitution shall consist of the area shown opposite thereto in the Second column of the Schedule. By Section 6(2) of the 1999 Constitution, the judicial powers of a State shall be vested in the Courts established for a State. Section 297 (1) of the 1999 Constitution has defined the area known as the Federal Capital Territory, Abuja. It is this area that comprises the geographical area beyond which the power or legal jurisdiction of the lower Court, the High Court of the Federal Capital Territory, Abuja is not to be extended.
Therefore, territorial jurisdiction implies a geographical area within which the authority of the Court may be exercised and outside which the Court has no power to act. Each of the States of the Federation and the Federal Capital Territory mentioned in the 1999 Constitution has been created for it by the Constitution, its own judiciary. The extent of the territorial jurisdiction of the High Court of the Federal Capital Territory, Abuja, the lower Court, by the provisions of Section 257 of the 1999 Constitution, does not extend beyond the Federal Capital Territory. See DARIYE vs. FRN (2015) LPELR (24398) 1 at 29, MAILANTARKI vs. TONGO (2017) LPELR (42467) 1 at 29-32, GOLIT vs. IGP (2020) LPELR (50636) 1 at 22, ANYAKORAH vs. PDP (2022) LPELR (56876) 1 at 42 and DALHATU vs. TURAKI (2003) LPELR (917) 1 at 23-24.

Let me iterate that the 1st Respondent’s cause of action at the lower Court is for defamation. There is no actionable wrong in defamation unless there is publication of the defamatory material to at least one person, not being the person defamed.

So in order for the lower Court to have the requisite jurisdiction, it has to be pleaded and evidence adduced of the publication of the libelous material within the Federal Capital Territory. I iterate that the proper venue for the adjudication of an action in libel is where the cause of action arose, id est, where the alleged libel was published and not necessarily where the defendant resides or carries on business.

The 1st Respondent’s witness, the PW2, testified that he read the alleged libelous publication in Gbagada, Lagos (See pages 204-205 of the Records). So by his testimony, the publication was in Lagos, outside the jurisdiction of the lower Court. It is therefore little wonder that the lower Court disregarded the testimony of the said PW2. Hear the lower Court at page 250 of the Records:
“There is no where in the Statement of Claim of the Plaintiff where it was pleaded that the publication was made in Lagos, the evidence of PW2 to the extent that he read Exhibit A32 at Gbagada, Lagos rendered the words in Gbagada, Lagos non-issue…
…the evidence of PW2 which tend to show that publication was made in Gbagada, Lagos is hereby disregarded.”

The importance of pleadings in cases of libel cannot be understated. It is from the pleaded facts that it can be ascertained where the cause of action arose and eo ipso, the proper venue for the trial of the action: DAIRO vs. UBN PLC (supra) at 165-166. We therefore turn to the pleadings to see if there is any averment as to where the publication of the alleged libelous material took place. Paragraphs 4, 10, 11, 13, 13a, 14, 15, 16 and 17 of the Amended Statement of Claim are relevant. They read:
“4. The 3rd Defendant is a company incorporated in Nigeria, Publishers of Vanguard Newspapers, who has its head office in Lagos and a branch office in Abuja.
10. The Plaintiff avers that on or about 23rd day of August 2002, the 1st and 2nd Defendants published a statement in the newspaper of the 3 Defendant at page 32, which is libelous [sic].
11. The Plaintiff avers that the 3rd Defendant at the instance of the 1st and 2nd Defendants published or caused to be published at page 32 of Friday Vanguard Newspaper of 23rd August 2002 the following:
‘This is more so when your Excellency’s claims about the claimed insolvency of the State, and to help package a way out.

Anything short of this may never earn the people’s sympathy. This is more so when your Excellency has recent cash donation of N2 Million to NANS (National Association of Nigeria Students) at Abuja and the sponsor of Alhaji Sidi Ali family’s pilgrimage to Mecca. For those who do not know, Alhaji Sidi Ali, is the member of governing council of Nnamdi Azikiwe University Awka (UNIZIK) who has been working hard to undermine the Administration of UNIZIK. The alliance between your Excellency and Alhaji Sidi Ali, an itinerant Northern politician to undermine the Administration of UNIZIK is understandable for the reason that Professor Pita Ejiofor, the incumbent Vice-Chancellor of the UNIZIK is a Roman Catholic’.
The said publication is hereby pleaded and shall be relied in evidence.
13. The Plaintiff avers that the said words or publication in their natural and ordinary meaning, meant and were understood to mean that the Plaintiff is collecting money from His Excellency, Dr. C. C. Mbadinuju to work against the members of Catholic Church in Anambra State.
13a. Indeed, the Plaintiff avers that the Pro-Chancellor of the Nnamdi Azikiwe University, Awka has by the ‘Minutes of the Special Meeting of Senate with the Governing Council delegation held on Tuesday 22nd October, 2002 in the Council/Senate Chambers’ stated that the said publication was false. The Plaintiff shall rely on pages 11 and 12 of the minutes of the said meeting in evidence.
14. Furthermore, the said words meant and were understood to mean that the Plaintiff who is a successful businessman, a Journalist, a Muslim and Politician is insolvent.
15. By reason of the premises the Plaintiff who is a successful businessman, Muslim, Journalist and a Politician has been greatly injured in his credit, character, reputation and as a good Muslim and in his occupation and personal belief has been brought to hatred, ridicule and contempt, which led him to resign as a member of Nnamdi Azikiwe governing council and Tender Board Committee.
16. The Plaintiff further states that the Defendant intentionally concocted the malicious allegation in an attempt to tarnish his reputation, public image, and respectability. It was aimed at exposing him, the Plaintiff to hatred amongst the Igbos, the public, mistrust and contempt by those having dealings with him and also with intent to lower the Plaintiff in estimation of the right thinking members of the society including people in high position.
17. The Plaintiff avers that the said act of Defendants have indeed caused him disrepute, disrespect, generated hatred, caused him ridicule and contempt and generally lowered him in the estimation of right thinking members of the society.”

It is effulgent from a scrutiny of the above relevant paragraphs that there is no averment that the alleged libel was published within the Federal Capital Territory, the geographical area of competence; the territorial jurisdiction of the lower Court. Strikingly absent in the facts averred in the Amended Statement of Claim is any averment that the Vanguard Newspaper where the alleged libelous publication was made is a national newspaper circulating within the entire Federation of Nigeria, including the Federal Capital Territory. In holding that the 1st Respondent established publication of the alleged libelous material, the lower Court held as follows at page 261 of the Records:
“In the instant case PW1 tendered Exhibit A1-A46, she is a librarian from National Library of Nigeria, Abuja. PW2 confirmed to the Court that he read Exhibit A32; publication had been established by the evidence of PW1 and PW2.
(i) In the instant case Exhibit A1-A46 Vanguard Newspaper widely published and distributed throughout Nigeria by agents of the 3rd Defendant can be presumed to have been published.

In the first place as earlier stated, the lower Court had disregarded the testimony of the PW2 (see page 250 of the Records) so it is odd for the lower Court to have relied on the same testimony of publication in Lagos outside the territorial jurisdiction of the lower Court. Secondly, I have gone through the Record of Appeal with the finery of a judicial toothcomb and there is neither pleadings nor evidence that could have informed the lower Court holding that Vanguard Newspaper is “widely published and distributed throughout Nigeria”. A Court acts on evidence before it and furthermore, whether Vanguard Newspaper is “widely published and distributed throughout Nigeria” is not a matter that a Court can take judicial notice of under Section 122 of the Evidence Act. Thirdly, the PW1, a staff of the National Library, was subpoenaed to produce a copy of the Vanguard Newspaper kept by the National Library, in the discharge of its statutory responsibility under Section 2 (2) (a) of the National Library Act to assemble and maintain, inter alia, a collection of newspapers. The production of the said newspaper by the PW1, in the absence of pleading and evidence that the libel was published in the Federal Capital Territory, coupled with absence of evidence that the Vanguard Newspaper circulates nationally, cannot establish publication of the libel within the Federal Capital Territory; more so, when by Section 2 (2) (b) of the National Library Act, a branch of the National Library is to be established and maintained in each State.

In the absence of averments in the Amended Statement of Claim that the libel was published in the Federal Capital Territory, coupled with the absence of testimony from any witness that he read the defamatory material within the Federal Capital Territory; it has not been established that the cause of action arose in the Federal Capital Territory in order for the action to come within the territorial jurisdiction and geographical competence of the lower Court. See EGBUE vs. ARAKA (1988) 3 NWLR (PT 84) 598, EZOMO vs. OYAKHIRE (1985) 1 NWLR (PT 2) 195 and NSIRIM vs. NSIRIM (1990) 3 NWLR (PT 138) 285. Each State High Court including the lower Court, the High Court of the Federal Capital Territory, Abuja; is given exclusive jurisdiction over the area of that State and no more. See O. F. (NIG.) LTD vs. VEEPEE IND. LTD (2009) 5 NWLR (PT 1135) 430 at 444-445, URICH AUTO SUPPLY CO. LTD vs. AZUBIKE (2002) 16 NWLR (PT 793) 343 at 355 and ONYEMA vs. OPUTA (supra) at 295. For the purpose of exercising jurisdiction, each State is independent of the other and the jurisdiction of its Court is limited to matters arising in its territory. In splice, this issue is resolved in favour of the Appellant. The lower Court did not have the territorial jurisdiction to entertain the action.

It is trite law that when a Court has no jurisdiction, the proper order to make is to strike out the matter: DAIRO vs. UBN PLC (supra) at 156, ARJAY LTD vs. AIRLINE MANAGEMENT SUPPORT LTD (2003) 7 NWLR (PT 820) 577 and OKOYE vs. N.C.F.C. LTD (1991) 6 NWLR (PT 199) 501. Having held that the matter was not within the territorial jurisdiction of the lower Court, the 1st Respondent’s action is hereby struck out.

I ought to end this judgment at this stage; but I am neither the repository of knowledge nor do I lay claim to infallibility. Therefore, being an intermediate appellate Court and given the rare, but unlikely chance that I may have arrived at a wrong resolution on issue number two, I will proceed to consider and resolve the remaining issues.

ISSUES NUMBERS THREE FOUR AND FIVE
Whether the trial Court was right in holding that the 3rd Defendant/Appellant was not entitled to the Defence of qualified privilege.
Whether there was evidence before the lower Court that the publication was actuated by express malice.
Whether the defence of fair comment availed the 3rd Defendant/Appellant.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
It is the contention of the Appellant that the lower Court was wrong to hold that the defence of qualified privilege was unavailing, particularly when the 1st Respondent did not file a Reply to the defence to plead any particulars from which malice can be inferred as required by Order 23 Rule 23 (2) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004.

The case of M.T.S. LTD vs. AKINWUNMI (2009) 16 NWLR (PT 1168) 633 at 651-652 and 656-657, GOMES vs. PUNCH (1999) 5 NWLR (PT 602) 303 at 311 and page 192 of the Legal literature, “WHAT NEXT IN THE LAW” by Lord Denning were relied upon.

It was further submitted that the 1st Respondent did not prove malice on the part of the Appellant in making the publication. The cases of ODUWOLE vs. WEST (2010) 10 NWLR (PT 1203) 598 and MTS LTD vs. AKINWUNMI (supra) at 638 were referred to on the meaning of malice. It was maintained that the 1st Respondent failed to discharge the onus of proving malice in order to destroy the defence of qualified privilege vide MTS LTD vs. AKINWUNMI (supra) at 657 and INLAND BANK vs. F & S (2010) 15 NWLR (PT 1216) 395.

The Appellant’s submission on his issue number five is that the publication was a fair comment bordering on the governance of a State in Nigeria, which the Appellant had a moral/legal duty to disseminate to the electorate, which had a corresponding moral/legal duty to receive the information. It was stated that the contention was whether it was Anambra State or Abia State that sponsored the 1st Respondent on pilgrimage to Mecca; but that evidence of the 1st Respondent was contradictory having stated in evidence in chief that he was sponsored by Abia State and under cross-examination he stated that he went with his own money through Abia State delegation.

Relying on pages 185, 187 and 188 of Lord Denning’s “WHAT NEXT IN THE LAW’,’ the Appellant submitted that in the absence of proven malice, fair information on a matter of public interest should be protected under the doctrine of public interest and fair comment. It was asserted that the truth or falsity of a publication does not form part of the defence of qualified privilege since it is different from a defence of justification. The case of OBASUYI vs. EZEIGHU (1991) 2 NWLR (PT 181) 585 at 603 was cited in support.

RESOLUTION OF ISSUE NUMBERS THREE FOUR AND FIVE
The disceptation under these issues is on the defence of qualified privilege and fair comment which the lower Court held was unavailing. In asserting qualified privilege and fair comment, the Appellant contends that the publication bordered on the governance of a State of Nigeria and so it had a duty to make the publication, with a corresponding duty on the electorate in the said State to receive the publication in order to see how the State was being governed. It is further argued that the 1st Respondent did not file any reply to the defence to allege malice on the part of the Appellant, in order to negative the defence of qualified privilege.

Now, the defence of qualified privilege is a defence to an untrue publication. However, it can only be claimed when the occasion of the publication is shown to be privileged. An occasion is privileged when the person who makes the documentation has a moral duty to make it to the person to whom he makes it and the person who receives it has an interest in receiving it. The two conditions must exist in order for the occasion to be privileged: ILOABACHIE vs. ILOABACHIE (2005) LPELR (1492) at 9-10. In AFRICAN NEWSPAPERS OF NIGERIA PLC vs. USENI (2014) LPELR (22954) 1 at 21-23, Iyizoba, JCA stated as follows:
“What is meant by the term ‘qualified privilege?’ In First Bank Nigeria PLC v. Aboko (2005) LPELR-7494 (CA), Aderemi, JCA (as he then was) stated:
“The term “Qualified Privilege” would seem to defy direct definition. It seems to me that for a proper understanding of what it connotes, an explanation, in words, is the proper approach. Generally, a Court action for a redress lies in the malicious publication of words or statements that are false in fact and injurious to the character and reputation of the person seeking the redress. The law considers the publication of such false and injurious words or statement as malicious unless it can be established that the person who makes the communication of such injurious and malicious words is a person who has an interest or a duty – be it legal, social or moral – to make it to the person to whom it was made and that the person to whom it was so made has a corresponding duty or interest to receive same. In other words, in law, a communication bona fide, made upon any subject matter in which the party communicating has an interest is privileged and in legal parlance, it is said to have been made on a privileged occasion and therefore a defence of qualified privilege will avail a person who is sued as a defendant in such circumstances. By this defence, a defendant in a libel case is saying no more than that even though the words complained of may be defamatory of the person of whom it was published to the person or persons whom the law recognises as persons who have corresponding interest to receive it, the defendant cannot incur any legal liability if the publication was not actuated by malice. So when the words published are made honestly and without any indirect or improper motive, a person sued as a defendant can legitimately take cover under the defence of qualified privilege, he will be immune from liability. It seems to me that the principle here is founded for the general welfare of the society… ‘
The above principles are further elucidated by the Learned Authors of GATLEY ON LIBEL AND SUNDER 16th edition) Paragraph 441 at page 201 …: ‘There are occasions upon which, on grounds of public policy and convenience, a person may without having legal liability, make statements about another which are defamatory and in fact untrue. On such occasions, a man stating what he believes to be the truth about another is protected in so doing provided he makes the statement honestly and without any indirect or improper motive.

These occasions are called occasions of qualified privilege, for the protection which the law, on grounds of public policy affords is not absolute but depends on the honesty of purpose with which the defamatory statement is made. The rule being founded on the general welfare of society, new occasions for its application will necessarily arise with continually changing conditions. ‘
It is apparent then that for a defendant to be able to rely on the defence of qualified privilege in these circumstances, the defamatory statement must be made honestly and without any indirect or improper motive or malice as it is generally described… The Appellants being a publishing outfit have a duty to disseminate information to the general public. But that duty carries with it the responsibility of ensuring that the information was subjected to proper investigation and is fairly accurate.
In Gomes v. Punch (Nig) Ltd & Anor (1995) 5 NWLR (pt. 602) 303, Aderemi, JCA (as he then was) observed:
‘…I should here say that it is much to be desired that newspapers, televisions or news media generally should be free to bring to the notice of the public any matter of public interest or concern. But in order to be deserving of that freedom, the press must show itself worthy of it. A free press cannot be deserving of that appellation unless it is a responsible press. The power of the press is enormous. It must not abuse that power. If a newspaper should act irresponsibly then it forfeits any claim to the defence of qualified privilege. The press in a society that upholds the rule of law as a way of life has a solemn duty to feed the society with true facts and honest comments… “
See also AKOMOLAFE vs. GUARDIAN PRESS LTD (2010) LPELR (366) 1 at 27, MAMMAN vs. SALAUDEEN (2005) LPELR (1833) 1 at 32 and CITIBANK (NIG) LTD vs. IKEDIASHI (2020) LPELR (49496) 1 at 37-38.

On the reciprocity of interest of the person making the publication and the person who receives it, Onnoghen, JSC (later CJN) stated as follows in MAMMAN vs. SALAUDEEN (supra) at 36-37:
“In Gatley on Libel and Slander, 9th Edition, paragraph (1998) 14.9 it is stated thus:-
‘This word “interest” is not used in any technical sense. It is used in the broadest popular sense, as when we say that a man is “Interested” in knowing and not interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its more quality as news.’
The learned authors went on to state in paragraph 14.10 inter alia:
“Reciprocity of “interest” does not mean that there must be some special relationship between the defendant and the person to whom he makes the communication. All it means is that the interest must exist in the party to whom the communication is made as well as in the party making it.”

Based on the broad sense in which the interest is construed, it can, prima facie, be said that the Appellant and the readers of its newspaper who are from Anambra State have a reciprocal interest in matters relating to the state of governance of Anambra State, which is what the publication relates to; against the background of the claim by the Government that Anambra State was insolvent. But did the Appellant ensure that the information it was imparting was fairly accurate?

The matter does not end with the reciprocity of interest simpliciter; the Appellant has the responsibility of ensuring that the information was subjected to proper investigation and that it is fairly accurate. The evidence adduced by the PW3 and PW4 (see pages 53-55, 57-58 and 221-225 of the Records) clearly establishes that there is nothing accurate in the information that the 1st Respondent and his family were sponsored on a pilgrimage to Mecca by Anambra State Government. What is more, the Appellant’s sole witness, the DW1 testified under cross-examination (See page 238 of the Records) that the information was received and they published the same and she could not say whether the information which was published was true or not. It is therefore limpid that the Appellant did not carry out any proper investigation to ascertain that the information was fairly accurate before publishing the same. This therefore dislodged the occasion of qualified privileged claimed by the Appellant as there cannot be any reciprocity of interest in the dissemination of information which the Appellant as a media house and the mouthpiece of the public did not subject to proper investigation to ensure it was fairly accurate before dissemination of the information.

The Appellant has raised the contention that the 1st Respondent did not file a reply alleging malice in order to negative the defence of qualified privilege as required by Order 23 Rule 23 (2) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004. Let me hasten to state that the duty to file a reply alleging malice arises, not merely because a defence of qualified privilege or fair comment has been raised; rather it arises where the said defence of qualified privilege has been made out. Put differently, where the defence of qualified privilege has not been made out, then it is not fatal that a reply was not filed alleging malice: HEBDITCH vs. MACILWAINE (1844) 2 QB 54, CITIBANK (NIG) LTD vs. IKEDIASHI (supra) at 33, ATOYEBI vs. ODUDU (1990) 6 NWLR (PT 157) 384 at 404 and MAINSTREET BANK vs. BINNA (2016) LPELR (48351) 1 at 29.

It remains to consider whether the defence of fair comment avails the Appellant in the diacritical circumstances of this matter. For the defence of fair comment to succeed in an action for defamation, the following ingredients have to be proved:
1. The facts on which the comment is based must be true and existing facts.
2. The matter has to be one of public interest, and
3. The comment was a fair inference from the facts.
The facts must be correctly stated or the premise upon which the comment is based must be correctly stated and must be the whole truth. In AFRICAN NEWSPAPERS OF NIGERIA LTD vs. COKER (1973) 5 SC 257 at 274, it was held that in the defence of fair comment, the whole of the facts must be correct, and fairly stated, or the premise upon which the comment is based must be the whole truth. Anything short of these would destroy the defence of fair comment. It therefore means that the facts stated must be existing facts. See EKONG vs. OTOP (2014) LPELR (23022) 1 at 34, VANGUARD MEDIA LTD vs. OLAFISOYE (2011) LPELR (8938) 1 at 67-68, G. CAPPA LTD vs. DAILY TIMES (2013) LPELR (22028) 1 at 60-62 and WESTERN PUBLISHING CO. LTD vs. FAYEMI (2015) LPELR (24735) 1 at 77-79. As I have already stated in the course of this judgment, the evidence established that the 1st Respondent and his family were not sponsored on a pilgrimage to Mecca by Anambra State Government, so the premise upon which Appellant’s fair comment is predicated was not correctly stated and is not based on the whole truth.

The summation of the foregoing is that these issue numbers three, four and five must be resolved against the Appellant. The decision of the lower Court that the defences of qualified privilege and fair comment did not avail the Appellant is the correct decision.

ISSUE NUMBERS ONE AND SIX
Whether from the pleadings and evidence led there was publication of the alleged words and, the Plaintiff/1st Respondent was defamed by the publication complained of.
Whether the trial Court was right in the award of N25,000,000 (Twenty Five Million Naira) only as damages to the Plaintiff/1st Respondent.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that a defamatory material is material which tends to lower the plaintiff in the estimation of right thinking members of the society, causes the plaintiff to be shunned and avoided and exposes the plaintiff to hatred, ridicule or contempt. It was stated that the reasonable man test is applied to determine if the words complained of are defamatory and that in this regard, the entire publication complained about is taken as a whole vide CONCORD PRESS NIG LTD vs. ASAOLU (1999) 10 NWLR (PT 621) 123 at 133, UBN vs. OREDEIN (1992) 6 NWLR (PT 247) 355 and Gatley on Libel and Slander 10th Edition, page 110 paragraph 3.29.

It was asserted that the cardinal principle in the law of defamation is that of evidence in proof from persons whose views or opinion of the plaintiff were adversely affected by the publication. The cases of IWUEKE vs. IMO BROADCASTING CORPORATION (2005) 17 NWLR (PT 955) 447 at 482 and 483 and BANK OF THE NORTH vs. ADEGOKE (2008) 8 WRN 159 at 185 were referred to. It was opined that from the facts pleaded in paragraph 1 (g) and (h) of the Amended Statement of Claim, the 1st Respondent was given appointments by the Government after the alleged publication, which shows that his estimation was not lowered before right thinking members of the society.

It was further submitted that the publication of the alleged defamatory words and the persons to whom it was published was not proved as the 1st Respondent did not plead the persons to whom the alleged defamatory words were published. The case of OSAYANDE vs. ETUK (2008) 1 NWLR (PT 1068) 211 at 227 was called in aid. It was maintained that the 1st Respondent failed to prove that the alleged defamatory words were published to a third party.

The Appellant’s submission on its issue number six is that the 1st Respondent did not suffer any loss of esteem or reputation in order to entitle him to the award of damages, having failed to prove that his estimation was lowered before right thinking members of the society.

RESOLUTION OF ISSUE NUMBERS ONE AND SIX
I have already set out the alleged defamatory material complained about. The Appellant’s case is that the alleged libelous material was received for publication from the 2nd and 3rd Respondents who authored the same. It is settled law that every person who participated or authorized publication of libel in a newspaper is prima facie liable, unless they can show that they did not know that the publication contained defamatory material: VANGUARD MEDIA LTD vs. OLAFISOYE (supra) at 51-52.

Let me punctus temporis state that the plaintiff in an action for libel must prove the following elements or ingredients namely:
1. That the defendant published in a permanent form a false statement.
2. That the statement referred to the Plaintiff
3. That the statement conveys a defamatory meaning to those to whom it was published, and
4. That the statement was defamatory of the plaintiff in the sense that it lowered him in the estimation of right-thinking members of the society; or it exposed him to hatred, ridicule or contempt, or it injured his reputation in his office, trade or profession or it injured his financial credit.
See SKETCH vs. AJAGBEMOKEFERI (1989) 1 NWLR (PT 100) 678 at 704, ILOABACHIE vs. ILOABACHIE (supra) at 44, ACB LTD vs. B. B. APUGO (2001) 5 NSCQR 549 at 552 and SULE vs. ORISAJIMI (2019) LPELR (47039) 1 at 17-18.

The crux of the Appellant’s contention is that the 1st Respondent did not establish by the evidence that the publication lowered him in the estimation of right-thinking members of the society since he was even given appointments by the Government after the publication, which shows that his reputation and esteem was not affected by the publication. The 1st Respondent in proof of his case called four witnesses and also testified at the trial. The PW1 was the staff of the National Library who was subpoenaed to produce the chafed Vanguard Newspaper publication. The PW2 testified that he read the publication in Gbagada Lagos, consequent upon which the lower Court disregarded his testimony. The thrust of the testimony of the PW3 and PW4 was that Anambra State did not sponsor the 1st Respondent to Mecca on pilgrimage but that he was sponsored by Abia State. They did not give any testimony on how they relate to the 1st Respondent consequent upon the publication.

Apart from the 1st Respondent himself, the only witness who testified as to any stigma that was attached to the 1st Respondent as a result of the publication was the PW2. However, as already stated, the lower Court disregarded his testimony as a result of which it did not constitute Legal evidence on which a Court could act. So the only Legal evidence on record on the publication having lowered the 1st Respondent in the estimation of right-thinking members of the society is the testimony of the 1st Respondent himself.

It is abecedarian law that a person’s reputation is not based on the good opinion he has of himself, but the estimation in which others hold him. Therefore the material and cardinal evidence in defamation or libel cases is the reaction of a third party to the publication complained of. It is not what the plaintiff thinks about himself, but what a third party thinks of the plaintiff as regards his reputation. See the cases of NSIRIM vs. NSIRIM (1990) 5 SCNJ 174 at 184 or (1990) 3 NWLR (PT 138) 285 at 297 and 299, IWUEKE vs. I.B.C. (2005) LPELR (1567) 1 at 37, OMO-AGEGE vs. OGHOJAFOR (2010) LPELR (4775) 1 at 13-17, AJAKAIYE vs. OKANDEJI (1972) 1 SC 92 and ANATE vs. SANUSI (2001) 11 NWLR (PT 725) 542 at 558-559. The 1st Respondent did not adduce evidence establishing that the publication lowered him in the estimation of right-thinking members of the society. The lower Court therefore erred when it found in favour of the 1st Respondent and awarded damages in his favour. These issue numbers one and six are resolved in favour of the Appellant.

The manner of resolution of issue number two wherein I held that the lower Court did not have territorial jurisdiction to entertain the action connotes that the appeal succeeds. The judgment of the lower Court delivered on 18th November 2010 is hereby set aside for want of jurisdiction. Since the lower Court did not have the requisite jurisdiction, the 1st Respondent’s action in SUIT NO. FCT/HC/CV/1390/2002 is hereby struck out for want of jurisdiction.
There shall be no order as to costs.

HAMMA AKAWU BARKA, J.C.A.: The judgment of my learned brother Ugochukwu Anthony Ogakwu JCA, was made available to me in draft before now.

Having also studied the grounds of appeal, the issues and record of proceeding I am pleased to note that my lord eloquently dissected the issues and admirably reached a conclusion which is agreeable to me. I agree that jurisdiction being crucial, and the lower Court bereft of same, all the proceedings conducted however brilliant amounted to no work done.

The appeal succeeds and it is hereby allowed by me. I make no order on costs.

BATURE ISAH GAFAI, J.C.A.: I have before now read in draft, the judgment delivered by my learned brother Ugochukwu Anthony Ogakwu, JCA. I am in full agreement with the reasonings expressed therein and the conclusion thereby reached.

I adopt those reasonings as mine; by which I too hold that the lower Court wrongly assumed jurisdiction on the 1st Respondent’s suit and thus proceeded in a voyage of nullity; the legal consequence of which is that none of it could be validly recognized under the law.

In consequence, I too hereby set aside the proceedings and Orders of the lower Court in the suit. Proceeding under the provisions of Section 15 of the Court of Appeal Act 1976, I too hereby order what that Court ought to have properly ordered ab initio; that is, an Order striking out the Suit No. FCT/HC/CV/1390/2002. In effect, the suit is struck out.