Libel: Entitlement Of Defendant To Qualified Privilege (III)

Avraham Modechai Zabusky

V

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

In considering the role placed upon this court by law to perform both the role of a judge and jury under section 15 of the Court of Appeal Act, 2004, this court will proceed to determine how the trial court treated the issue of malice by the respondent which accompanied the publication of exhibit ‘G’. The trial court at this stage is to examine the statement published, then make up an opinion as to whether what was published as actually actuated by malice or not. The position of the law here is that, once malice is established, the defence of qualified privilege is completely destroyed. The Supreme Court in case of Basorun v. Ogunlewe (2000) I NWLR (Pt. 640) 221 at 236 paras. A-B stated this fact. The same Supreme Court in Emeagwara v. Star Printing & Publishing Co. Ltd. (2000) 10 NWLR (Pt. 676) 489 at 509 paras. G-H held that:

“Malice means use of a privilege 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 protection if he uses the occasion not for the reason which makes the occasion privileged, but for an indirect or wrong motive”.

The trial court in its judgement on page 82 of the records the last paragraph in determining whether there was malice or not in this dispute stated:

“The onus is heavy on the claimant to show express malice. 1st defence witness Mrs. Jones who has just joined the defendant’s firm knew the goings on between the claimant and Mr. Shynader. There is a missing link I believe the buck ends with the Agent who processed the immigration papers of the parties. Since it was the claimant’s company who engaged an agent to process both his papers and those of Mr. Shynader, failure to call that crucial evidence leaves much doubt in my mind as to the malice alleged against the defendant. To that extent therefore I hold that the claimant has not been able to prove any measure of malice against the defendant”.

I do agree with the trial court that, the burden to establish malice is on the claimant or plaintiff. It is not the responsibility of the respondent to prove to court, what he published against the claimant was devoid of malice. The Supreme Court, in the case off Mr. Justice Sylverster Onu v. Dan Agbese and Plateau Publishing Company Ltd (1985) 5 SC 242 at 272 (1985) I NWLR (Pt. 4) 304 stated:

“The law is now trite that for a plaintiff to succeed in an action of defamation he must not only prove that the defendant published the defamatory words, he must identify himself and the person defamed”.

On the issue of burden to establish malice on the claimant and not defendant, that is appellant and respondent in this court, see: Batley on Libel and Slander 7th Edition at page 281.

This court will state here that from the circumstances of this case, as rightly observed by the trial court, prima facie, the words published, exhibit ‘G’ may be defamatory but, what remains lacking in the case of the appellant is, the proof of malice.

The parties re ad ident that exhibit ‘G’ was published on an occasion of qualified privilege. However the appellant failed to remove the privilege from the respondent, by proving express malice, the defence of qualified privilege must therefore succeed. This court holds that the defence succeeds to the benefit of the respondent. Issue No. I resolved in favour of the respondent.

Issue No.2

This issue concerns the lower court’s assessment of the sum of N50,000.00 as damages it would have awarded had it found in favour of appellant appropriate in the circumstances, both the learned counsel to the appellant and respondent provided argument for and against the question of adequacy or inadequacy. The fact remain that, the subject of the assessment of N50,000.00 damages, if court finds in favour of appellant remains hypothetical. It is trite law that courts should not engage hypothetical question on matter before it. The duty of the court is to determine the merit of the case of dispute before it. The merit of the case is the real or substantial ground of an action or defence in contradistinction to some technical or collateral matter raised in the cause of the case. It is in practice a matter of substance as distinguished from a matter of form. A matter of adjectival or procedural nature is generally not on merit. See: national Inland Waterways Authority v. S.P.D.C. Nig. Ltd. (2008) 5-6 SC (Pt.1) 172, (2008) 13 NWLR (Pt. 1103) 48.

The trial court fell into a grave error on page 83 of the records wherein it said:

“Having treated the 1st and 2nd issues, it is needless to waste energy on the plaintiff’s claim for exemplary damages. Even if I had found in favour of the claimant, I would not have awarded any damages beyond the limit of N50,000.00.

This court stated earlier the position of the trial court in respect of the above statement is hypothetical, devoid of any merit. The court has not shown in any given respect the mode or basis in which it had used to arrive at its hypothesis of N50,000.00. This is quite out of context. Without any hesitation this court has set aside this statement of the trial court contained on page 83 of the records. “I would not have awarded any damages beyond the limit of N50,000.00.

In the exercise of the powers of this court under section 15 of the court of appeal Act 2004, this court shall proceed to consider the 2nd issue in the appellant’s brief which is related to the assessment of the damages.

The law in respect of the assessment of damages requires the court to study all the surrounding circumstance of the injury suffered by the complainant, and award what is reasonable, and adequate, the repair and the damage caused by the publication. The supreme court in the case of His Highness Uyo 1 v. Felix Egware (1974) 1 All NLR (Pt. 1) 293 at 297 stated:

“Such  an award must be adequate to repair the injury to the plaintiff’s reputation which was damaged, the award must be such as would be atone for the assault on the plaintiff’s character and pride which were unjustifiably invaded; and it must reflect the reaction of the law to the imprudent and illegal exercise in the course of which the libel was unleashed by the defendant”.

This court in its determination to issue No.1 held that the defence of qualified privilege had succeeded and the respondent can avail himself of that defence. The court had determined that malice was not proved in respect of the disputed publication. In that regard therefore, this court is in no position to assess damages out of nothing. No damages are therefore warded by this court issue No.2 is resolved in favour of the respondent, and against the appellant.

Having resolved all the two (2) issues in this appeal in favour of the respondent and against the appellant, the appeal is unmeritorious and is hereby dismissed by this court.

The judgement of Akinsanya, J. of the High Court of Lagos State in Suit No. LD/1592/97 delivered on the 18th of March, 2005 is here affirmed by this court.

No order as to costs.

Ogunwumiju, J.C,A.: I have read the judgment just delivered by my learned brother Sidi Dauda Bage, JCA. I am in complete agreement with his reasoning and conclusion that the appeal lacks merit and must be dismissed.

I will add a few words. This is no doubt that the words published were defamatory, however, the respondent can avoid any liability where the claimant cannot prove malice in circumstances where the respondent uses the defence of qualified privilege as a shield. The defence of privilege can only be dislodged by pleading and proving express malice. See M.T.. Mamman v. A.A. Salaudeen (2005) 12 SCNJ 1, (2005) 18 NWLR (Pt. 958) 478. There is no reason to change the finding of the trial judge that the appellant as claimant was unable at the trial court to prove express malice.

On the 2nd issue which may brother has astutely treated, there is no doubt that the question of what would have been the appropriate damages if libel had been proved is a hypothetical question which the courts would not deign to answer. The appeal is dismissed. I abide by the consequential order as to costs.

Okoro, J.C.A.: I read before now the judgment of my learned brother, Bage, JCA just delivered and I agree with him that this appeal is devoid of merit and is hereby dismissed. I adopt both the reasoning and conclusion of my learned brother as mine and abide by all the consequential orders made in the lead judgment. I also make no order as to costs.