Libel: Entitlement Of Defendant To Qualified Privilege (II)

Avraham Modechai Zabusky

V

Mr O. DEBAYO-DOHERTY

(Trading under the name & style of DEBAYO-DOHERTY & Co.

Particulars

It was clear from the evidence led and from decided authorities that “malice” means making use of a privilege occasion for an indirect purpse an act which the defendant was clearly guilty of.

(b) The defence of qualified privilege did not avail the defendant in this case.

(c) Irrelevant issues considered by the lower court greatly influenced the court in arriving at a wrong conclusion that there was no malice on the part of the defendant when it wrote the libelous letter.

3.  The lower court erred in law when it held that the contents of the letter – exhibit “G” was defamatory of the plaintiff but failed to find the defendant liable for damages.

Particulars

(a) All the conditions necessary for proving defamation were established.

(b) Defendant failed to call any evidence whatsoever in support of the main plank of his pleading that it was true that the papers used by the plaintiff in support of his immigration status were forgeries and that the Hon. Minister of Internal Affairs had remarked that the plaintiff’s immigration papers were forged/faked.

(c) Defendant issued exhibit G at the behest of his client who had scores and issues to settle with the plaintiff.

(d) Exhibit G was published recklessly without any regard whatsoever as regard the truth of the assertion contained therein.

4. The lower court erred in law when it held that “Having treated the 1st and 2nd issues, it is needless to waste any energy on the plaintiff’s claim for exemplary damages. Even if I find in favour of the claimant (sic) I would not have awarded any damages beyond the limit of N50,000.00.

Particulars

(a) Defendant issued exhibit ‘G’ recklessly and maliciously without any regard whatsoever regarding the truth of the assertion contained therein.

(b) Defendant set out to deliberate injures plaintiff’s reputation and lower his esteem amongst his peers.

(c) The sum of N50,000.00 which the lower court stated it would have awarded in favour of the plaintiff had fond for him is inadequate considering the circumstances of this case.

The amended appellant’s brief of argument was dated 13th October 2009, and filed on the 15th October 2009, but deemed properly filed on the 21st of October 2009.

The respondent’s brief was dated and filed the 21st of May 2009.

Appellant’s counsel M.J. Onigbanjo, Esq. identified two (2) issues for determination as follows:

(1) Having held that the words complained about in exhibit were defamatory was the lower court right to have held that the respondent was not liable.

(2)        Is the lower court’s assessment of sum of N50,000.00 s damages it would have awarded had it found in favour of the appellant appropriate in the circumstance.

On the other hand, respondent’s counsel identified the following four (4) issues for determination as follows:

(a) Was the learned trial Judge entitled to find, on the pleadings, that the appellant had admitted that the words complained of were true (Ground I).

(b) If the learned trial Judge was entitled to find an admission on the part of the appellant, was the respondent obliged to call evidence to prove such admitted facts and did the evidence of the appellant contradicting such admitted facts go to no issue? (Grounds I&3).

(c) Did the appellant prove that the respondent was actuated by express malice in writing the words complained of and thereby defeat the defence of qualified privilege? (Grounds 2&3).

Having regard to the grounds of appeal and the arguments presented to the court below, a sub-issue is raised in this regard namely:

(a) Is the appellant entitled to complain that the learned trial judge failed to make any finding that words complained of were published on an occasion of qualified privilege?

(b) Did the appellant make out any case at all for exemplary damages?

Having examined the two sets of issues as formulated by the parties. I intend to be guided by the issues as formulated by the appellant. The two (2) issues are all encompassing to the grounds as contained in the notice of appeal, and have adequately captured the four (4) issues raised by the respondent.

Issue One

In arguing issue one, learned counsel to the appellant submitted that the issue is distilled from grounds one, two and three of the notice of appeal. The trial court at page 80 of the records, resolved the issue of whether the words complained of an exhibit G was defamatory when it held as follows:

Reading the said statement of the hearing of an ordinary citizen gives the impression of a defamatory communication which is capable of tarnishing the image of the person mentioned in the said communication.

The respondent however pleaded that the words complained of were published on an occasion of qualified privilege. The appellant in response pleaded that the respondent was actuated by express malice in publishing the words complained. The learned trial judge considered the defence of qualified privilege and held that the appellant had failed to discharge the heavy onus on him to prove express malice.

The short history of the dispute between the parties revolves on exhibit ‘G’. The issue of “forgeries” the respondent maintained emanated from a qualified privilege. It was a meeting with the Immigration Officers, and in the presence of appellant, that the officers said, the immigration documents presented by the appellant, that the officers said, the immigration documents presented by the appellant were all “forgeries”. The respondent too was physically present. The appellant at that time material did not deny this assertion of the government officials. The respondent wrote exhibit  ‘G’ to COREN because in his evidence at the trial court he testified a follows:

“I believe what is wrote in exhibit G in respect of exhibit F must be the truth because we expect our client to tell us the truth.”

“I have not seen the plaintiff’s immigration documents before other than information  furnished to us” “We did not detect (sic-detest) him or consider him to be a man of bad character who will forge (sic-forge) documents”.

The central issue at this stage is that of qualified privilege. The Supreme Court in the case of Albert Oluwole Obikoya v. Peter Ezenwa & Ors. 3 ECSLR 1069 at 1075 stated.

“The plaintiff is entitled to be supplied with, and the defendants are bound to supply him further and better particulars of the circumstances which would be relied upon at the trial as rendering the occasion of the publication of the alleged libel privileged. Such particulars would enable the plaintiff to know the type of defence he is to meet and the nature of the evidence likely to be produced at the trial and may necessitate his filing a reply thereto”.

In the instant appeal the circumstances which rendered the occasion of the publication of exhibit ‘G’ is not in any doubt and not disputed by the appellant. It was at the immigration office, where both the appellant and respondent were physically present, that the officers of the immigration service said, all the immigration documents presented by the appellant were “forgeries”. The appellant who was present there made no denial of same before the officers. Again this episode attracted the comments of the Hon. Minister of Internal Affairs on the subject. The grouse of the appellant is not on the occasion of the publication, but rather the respondent’s malice which accompanied the publication of exhibit “G”. The trial court considered the defence of qualified privilege and held that the appellants had failed to discharge the heavy onus on him to prove express malice.

The Supreme Court per Obaseki, JSC (of blessed memory) in Maurice Dumbo & Ors. v. Chief Stephen Idugboe (1983) 2 SC at pp. 18-20, (1983) 1 SCNLR 29 at 46, paras, F-B stated:

“In libel cases, it well settled that the question whether words which are complained of are capable of conveying a defamatory meaning is a question of law and is therefore one calling for the decision of the court of judge sec: Morgan v. Odham Press (1970) I WLR 820 (CA); (1971) I WLR 1239 (HL). If the words are so capable, then it is a question for the jury whether the words do in fact convey a defamatory meaning. Sec: Jones v. Skelton (1963) I WLR at page 1376 (PC); Capital and Countries Bank v. Henty (1882) 7 App. Cas. 741. If a publication, either standing alone, or taken in connection with other circumstance, is reasonably capable of a libelous con construction, it is for the jury and not for the judge to say whether a libelous  a libelous construction should be put on it (per Lord Penzance in Capital and Countries Bank v. Henty (1882) 7 App, Cas, at p. 777). The plaintiff cannot succed unless he gets both the court and the jury to decide for him Per Lord Blackburn in Capital and Counties Bank v. Henty (supra) at p. 776. In this country, since the trial Judge or court performs the function of Judge and Jury, the Appeal Court (Federal Court of Appeal) hearing an appeal from the decision of a judge of the High Court, but virtue of the powers conferred upon it by section 16 (now Section 15) of Federal Court of Appeal Act, is competent to assume the role of judge and jury in the mater and correct all errors of law and conclusions, inferences and findings of fact”.