Libel: Entitlement Of Defendant To Qualified Privilege

Avraham Modechai Zabusky

V

Mr O. DEBAYO-DOHERTY

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

Issues:

1.Having held that the words complained about in exhibit “G were defamatory was the trial court right to have held that the respondent was not liable.

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

Facts:

The appellant at the High Court of Lagos State filed a suit in libel against the respondent claiming that the respondent published libelous words in a letter dated 16th April 1997 to the Council for the Registration of Engineering in Nigeria (COREN). The appellant claimed against the respondent as follows:

1. N4,000,000.00 as damages for the libelous words published by the respondent.

2. Nl ,000,000.00 as exemplary damages.

3. An injunction restraining the respondent, his servants, agents and privies from further repetition and’ or publication of the said words defamatory of the appellant.

The respondent had filed its defence thereto while the appellant filed a reply ‘to the statement of defence.

At the end of the trial, the court held that there was no merit in the claim of the appellant and same was dismissed.

Dissatisfied with the judgment, the appellant appealed to the Court of Appeal.

Held (Unanimously dismissing the appeal):

1. On Need for defendant to furnish plaintiff with particulars of defence of qualified privilege –

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. [Obikoya

v. Ezenwa 3 ECSLR 1069 referred to.] (P. 331, paras.

C-D)

2. On What amounts to defamatory words –

In libel cases, 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 or Judge. If the words are so capable.then it is a question for the jury whether the words do in fact convey a defamatory meaning. If a publication, either standing alone, or taken in connection with other circumstance, is reasonably capable of a libelous construction, it is for the jury and not for the Judge to say whether a libelous construction should be put on it. [Dumbo v. Idugboe (1983) 2 SC 18 referred to.] (Pp. 331—332, paras. H-C) 3. On What can destroy a defence of qualified privilege-

Once malice is established, the defence of qualified privilege is completely destroyed. A respondent can avoid any liability where a claimant cannot prove malice in circumstances where the respondent uses the defence of qualified privilegd as a shield.

The defence of privilege can only be dislodged by pleading and proving express malice. (Pp. 332, paras. G; 336, paras. A-B)      , Per BAGE, J .C.A. at page 331, paras. E-G:

“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 xhibit

“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. “

[Bosorun v. Ogunlewe (2000) 1 NWLR (Pt. 640) 221; Mamman v. Salaudeen (2005) 18 NWLR (Pt. 958) 478 referred to.]

4. On Meaning of malice in ‘Libel proceedings and when defendant entitled protection of priviledge –

Malice is the 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. [Emeagwara v. Star Printing & Publishing Co. Ltd. (2000) 10 NWLR (Pt. 676) 489 referred to.]

(P. 33,paras.A-B)

5. On Whom lies the burden to establish malice in libel proceedings –

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. [Onu v.

Dan Agbese and Plateau Publishing Co. Ltd. (1985) 5 SC 242 referred to.] (P. 333, paras. E-F)

6.On Attitude of courts to hypothetical question –

Courts should not engage in hypothetical question on matters before it. The duty of the court is to determine the merit of the case or 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. [National Inland Waterways

Authority v. S’pD.C. Nig. Ltd. (2008) 13 NWLR (Pt. 1103) 48 referred to.] (P. 334, paras. D-F)

7. On Principles guiding award of damages in libel cases by trial court –

The law in respect of the assessment of damages requires the court to study all, the surrounding circumstances of the injury suffered by the complaint and award what is reasonable and adequate, the repair and the damage caused by the

publication. [His Highness Uyo I v. Egware (1974) 1 All NLR (Pt. 1) 293 referred to.] (P. 335, paras.

A-B)

Nigerian Cases Referred to in the Judgment:

Basorun v. Ogunlewe (2000) 1 NWLR (Pt. 640) 221 Dumbo v.ldugboe (1983) 1 SCNLR 29 Emeagwara v. Star Printing & Publishing cs: Ltd. (2000) 10 NWLR (Pt. 676) 489

BAGE, J.C.A. (Delivering the Leading Judgment): The appeal

arose from the judgment of the High Court of Lagos State sitting at Lagos (herei nafter called (“the trial court”) del i vered by Hon. Justice D.F. Akinsanya on 18th March, 2005.

The claimant caused to be issued a writ of summons dated 4th June 1997, claiming the following:

“1. N4,000,000.00 as damages for the libelous words published by the defendant.

2. N1,000,000.00 as exemplary damages.

3. An injunction restraining the defendant, his servants, agents and privies from further repetition and or publication of the said words defamatory of the plaintiff.

The writ of summons was accompanied by a statement of claim.

The defendant filed a defence on 8th January 1998, while the claimant filed a reply to the statement of defence on 29th July 1998.

The said claimant’s reply was further amended by the process dated 24th April 2002.

The respondent was alleged to have published in a letter dated 16th April 1997 to the council for the Registration of Engineering in Nigeria (COREN) concerning the appellant the following

statement:

“The situation is that our client’s immigration situation was supposed to have been handled by one Avraham Zabusky with whom we believe that you may be familiar. We were told by immigration in the presence of Mr. Zabusky that all documents presented by Mr. Zabusky in regard to his own immigration situation as regards himself are forgeries.”

The statement the appellant claimed referred to him was false and injured his credit and reputation. At the end of the day the trial

A judge held that there was no merit in the claim of the claimant, and same was dismissed.

Not satisfied with the judgment the appellant has filed this appeal. The notice of appeal contains four (4) grounds of appeal to wit:

2.

The lower court erred in law when it held that paragraph 3 of the amended reply to statement of defence was not a proper denial of paragraph 4(d) and (e) of the statement of defence and this amounted to an admission.

Particulars

(a)  Paragraph 3 of the amended reply to the statement of defence challenges and contradicts the assertion of facts in paragraph 4( d) and (e) of the statement of defence.

(b)  Paragraph 3 of the amended reply to the statement of defence raised the issue as to whether or not the Honourable Minister of Internal Affairs uttered the statement attributed to him in paragraph 4( d) and (e) of the statement

of defence and to that extent it amounted to an effective traverse under the law.

(c)  Appellant’s pleadings before the lower court should have been read as a whole before the court can arrive at the conclusion that by not effectively denying paragraph 4(d) and (e) of the statement of defence, appellant has thus admitted the said paragraph.

(d)  Looking at the totality of appellant’s pleadings before the lower court and paragraph 3 of the amended reply to statement of defence in particular they cannot be said to be definite, unambiguous and unequivocal as to be an

admission of paragraph 4(d) and (e) of the statement of defence.

The lower court erred in law and on facts when it held that “I hold that the claimant has not been able to prove ‘any measure of malice against the defendant.”

Particulars

(a)  It was clear from the evidence led and from decided authorities that “malice” means making use of a privilege occasion for an indirect purpose 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.

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.

The lower court erred in law when it held that “Having treated the I” 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.