Alhaji K.A. Giwa V. S.A. Ajayi & Ors (1992)
LawGlobal-Hub Lead Judgment Report
UBAEZONU, J.C.A.
The appellant sued the four respondents for libel claiming N1,000,000 (One Million Naira) as damages. The appellant was at all material times to the action a civil servant as a controller of Low Housing Projects with the Lagos State Development and Property Corporation (hereinafter referred to as “the Corporation”). The respondents were staff and members of the Workers Union of the aforementioned corporation. The appellant’s cause of action is founded on the minutes of a joint meeting between the Management of the Corporation and the defendants’ union. The defendants represented their union. Paragraph 4 of the appellant’s statement of claim states as follows:-
“4. The plaintiff avers that by Minutes of the said meeting of Friday, 10th June, 1983, at 10.30a.m., the defendants falsely and maliciously published of concerning the plaintiff the words following, that is to say.
A HOUSE AT ISOLO: The union alleged that one of our staff bought a housing unit at Isolo, then put up a complete house within the housing unit using corporation’s material and labour. The union alleged further that the corporation Internal Audit Department went into the matter sometime ago to investigate, but nothing was heard of the result of the investigation. When the chairman asked the name of the staff concerned it was disclosed as Alhaji K.A. Giwa, the controller of low cost Housing projects.”
In their statement of defence (paragraph 6) the respondents pleaded that the averment in paragraph 4 of the statement of claim was “true in substance and in fact.” In paragraph 7(sic) of the statement of defence the respondents raised a defence of qualified privilege. They pleaded as follows:-
“The occasion of publication was an occasion of qualified privilege.
Particulars
1. The LSDPC is a corporation of the Lagos State Government and the employer of the plaintiff as well as the 1st, 2nd and 3rd Defendants.
2. The plaintiff belongs to the Management cadre of the LSDPC by virtue of his position as controller of Low Cost Housing Projects. While the 1st, 2nd and 3rd defendants are members of the Workers Union of the LSDPC, a unit of the NUPCE, a National Trade Union Body.
3. The NUPCE caters for the welfare of the class of workers to which 1st, 2nd and 3rd defendants belong and they are in fact officers of the LSDPC unit of the NUPCE. They hold the following offices:-
1st Defendant:- Chairman, LSDPC workers union and National Vice President NUPCE
2nd Defendant:- Vice-Chairman. LSDPC Workers union.
3rd Defendant:- Treasurer, LSDPC Workers union:
4. The 4th defendant is the Lagos State Secretary and Assistant General Secretary of the NUPCE.
5. The occasion at which the words complained was said to have been published was in the minutes of an official meeting of the LSDPC as a union represented by the defendants and presided over by the LSDPC’s chairman.
6. The topic under “A HOUSE AT ISOLO” complained of by the plaintiff was only one of the plaintiff was only one of the grievances discussed at the meeting. Grievances to which the union seeks solutions from the LSDPC.
7. The words complained of by the plaintiff was a fair information on matters of mutual interests to the union and the LSDPC.
A. UNION’S INTERESTS:
(i) That the labours of its members were legitimately utilized on their Employers Business and not for the financial gains of individuals.
(ii) That the members of the union and the Management have a stake in the Corporation and should be judiciously managed so as not to cause undue hardship on the union members.
8. LSDPC’S INTEREST:
Judicious Management and Public Accountability of the Board of Directors and Management to the Lagos State Government.”
After the pleadings were duly exchanged, the trial came before A.L.A.L. Balogun J. at the Ikeja Division of the High Court of Lagos State. The learned trial Judge heard evidence from both sides and in a considered judgment dismissed the appellant’s claim. Dissatisfied with the judgment, the appellant has appealed to this court. He filed three grounds of appeal. In view of what I shall say later in this judgment on the appellant’s brief, I shall set out his grounds of appeal. They are as follows:-
“(1) The learned trial judge misdirected himself in law and upon the facts when he held that there was strong and abundant evidence that some of the building materials used by the plaintiff in constructing the two bedroom flat extension belonged to LSDPC, and that all the workmen used by him in constructing the same were LSDPC workmen.
(2) The learned trial judge erred in law when he held that the communication made by the Defendants to the Management of LSDPC concerning the plaintiff were made on a privileged occasion and that the evidence so adduced also established clearly that some duty or interest existed in the party to whom the communications were made as well as in the parties making them; and the duty or interest actually existed at the time of the communications and that the interest of the recipient was a legitimate interest which the court must recognize and protect.
(3) The judgment is against the weight of evidence adduced at the trial.”
The parties filed and exchanged briefs of argument and formulated issues therein. The appellant formulated the following 5 issues for determination:-
“(i) Whether on the evidence, the plaintiff proved that the additional two-bedroom flat was built with materials which he bought.
(ii) Whether the LSDPC’s materials and labour were used in effecting repairs on the plaintiff’s’ main building and not in constructing the additional two-bedroom flat.
(iii) Whether at the time the Defendants published the words complained of they were capable of conveying a defamatory meaning.
(iv) Whether the statements complained of were made on privileged occasion.
(v) Whether the learned trial judge properly directed himself as to the burden of proof concerning the issues before him particularly with regard to the issue of the commission of a crime by the plaintiff in using the LSDPC’s materials and labour to build the additional two-bedroom flat.”
The respondents on the other hand formulated the following three issues vis
“(a) Whether the learned trial judge was right in concluding that some (or perhaps most) of the building materials used by the plaintiff in constructing the two bed-room flat Extension belonged to LSDPC and also the workmen used by the plaintiff in constructing same were LSDPC workmen.
(b) Whether the words complained of were published on a privileged occasion.
(c) Whether the defendants had successfully discharged the burden of proof required of them by law in a civil case on the pleadings and evidence led.”
Both counsel adopted and relied on their respective briefs. The 1st ground of appeal which alleges a misdirection “in law and upon the facts” is incompetent and is hereby struck out. The appellant is left with two grounds of appeal vis the ground on qualified privilege and the ground on weight of evidence. Issue No. III does nor relate to any of the grounds of appeal. Beside issue No. IV which relates to the 2nd ground of appeal, the rest of the issues formulated by the appellant may be said to relate to the ground on weight of evidence. Issues for determination must be formulated in such a way as to relate to specific grounds of appeal. Issues which do not relate to a ground of appeal are incompetent.The argument of counsel for the appellant centred mainly on the weight of evidence and the issue of qualified privilege. On weight of evidence counsel contends that the evidence of the defence witnesses was contradictory and ought not to have been accepted or acted upon by the learned trial judge. Learned counsel referred to Murana Elemo v. Fasasi Omolade (1968) NMLR 359 and Imana v. Robinson (1979) 3 – 4 S.C. 1 on the burden of proof. See also the case of Aikhionhare v. Omoregie (1976) 12 SC 11. On contradiction, counsel referred to Adeyemi v. Bamidele (968) 1 All NLR 31. As to whether the communication was made on a privileged occasion counsel referred to Turner v. M.G.M. (1950) 1 All E.R. 449 at 462 and Morris Dumbo & Ors. v. Stephen Iguegboe (1983) 2 S.C. 14 at 61. Counsel submits that where the commission of a crime by a party to a civil case is directly in issue section 137(1) of the Evidence Act requires that the other party must prove the commission of the crime beyond reasonable doubt. He refers to Benson Ikokwu v. Enoch Oil (1962) 1 All NLR 194 at 199 – 200; Godwin Nwankware v. Joseph Adewunmi (1966) 1 All NLR 129; Pedro v. Orafidiya (1975) 1 NMLR 336; Nwobodo v. Onoh (1984) 1 SCNLR 1 at 17.
Learned counsel for the respondent in support of the issues formulated by him said that there was evidence unchallenged and uncontradicted of the defence which the trial judge accepted. He referred to the case of Wiri v. Wuche (1980) 1 – 2 S.C. 1 at 6 -7; Agongo v. Asekele (1967) NMLR 21 at 22; Omoregbe v. Lawani (1980) 3 – 4 S.C. 108 at 117. On quantum of proof, counsel referred to Woluchem v. Gudi (1981) 5 S.C. 291. Counsel dealt with matters to be proved by the plaintiff in a case of libel and submits that the matter complained of was not typed/printed by the defendants but by the LSDPC (the corporation). He refers to the cases of Sketch v. Ajagbemokeferi (1981) 1 NWLR (Pt. 100), 678; Onu v. Agbese (1985) 1 NWLR (PT. 4) 704.
On qualified privilege, learned counsel submits that the respondents having made a plea of qualified privilege in their statement of defence, the appellant ought to have filed a Reply to plead express malice – see the case of Bakare v. Ibrahim (1973) 6 S.C. 205; Horrecks v. Louse (1974) 1 All E.R. 662.
In a case of defamation of character, be it libel or slander, there are certain basic facts which a plaintiff must prove for his case to take off. They include:-
(i) Publication of the defamatory matter;
(ii) The publication must refer to the plaintiff;
(iii) The publication must have been made by the defendant;
(iv) The publication must be false.
The plaintiff in order to succeed must plead and prove these facts. In this case on appeal, there is no averment in the statement of claim as to whom the alleged defamatory matter was published.
D.W.2 testified that Mr. Ajayi handed over to him a pamphlet containing Exhibit P1 which contains the material complained of, that material fact of publication by Mr. Ajayi is not pleaded and therefore goes to no issue. The publication which was pleaded in paragraph 4 of the statement of claim was said to have been made on Friday, 10th June, 1983 at 10.30a.m., at a meeting of the Maintenance and the Workers Union of the Corporation. This is the only publication with which this case is concerned.
The issues raised in this appeal may be considered under two main heads vis the issue on qualified privilege and the issue on weight of evidence. A statement made about a person may be false and defamatory of him yet the person may not be able to maintain an action of defamation on it if such a statement is made on an occasion of qualified privilege. In such a case, the law does not presume the existence of malice in the making of such a statement. For a plaintiff to succeed in such an action, he must plead and prove express malice(or malice in fact) in the making of the statement by the defendant. Such statements “are Protected for the common convenience and welfare of society”- per parke B. in Toegood v. Spyring (1834) 1 C.M. & R. at page 193. The rule being founded on the general welfare of the society, new occasions for its application will arise with continually changing conditions- see Gatley on Libel & Slander 7th Edition page 186. Statements or communications made on a number of occasions have been judicially recognised as attracting a defence of qualified privilege.For our purposes in’ this appeal, the pronouncement of Lord Campbell C.J., while delivering the judgment of the Exchequer Chamber in Harrison v. Bush (1855) 5 E & B at page 348 is opposite. He said –
“A communication bona fide made upon any subject-matter in which the party communicating has an interest is privileged, if made to a person having a corresponding interest or duty; although it contains criminating matter which, without the privilege, would be slanderous and actionable.”
Again, in Stuart v. Bell (1891) 1 Q.B. at page 354, Lopes L.J., had this to say-
The occasion is privileged where the defendant has an interest in making the communication to the third person and the third person has a corresponding interest in receiving it.”
I shall refer to one more judicial pronouncement on this matter before applying the principle to the instant case. In Hunt v. Great Northern Railway (1891) 2 Q.B. at page 191, Lord Esther M.R. said:-
“A privileged occasion arises if the communication is of such a nature that it could be fairly said that those who made it had an interest in making such a communication, and those to whom it was made had a corresponding interest in having it made to them. When these two things co-exist the occasion is a privileged one.”
Applying the principle enunciated above to the case on appeal, the statement of claim alleges a publication on Friday 10th June, 1983 at 10.30a.m. at a joint meeting between the Management of the Lagos State Development and Property Corporation (the Corporation) and the workers union or the said corporation – see paragraphs 3 and 4 of the statement of claim as contained in page 4 of the record of appeal. The words complained of have already been set out earlier in this judgment. The minutes of the said meeting are contained in Exhibit P1. It is clear from the statement of claim and Exhibit P1 that the words complained of are as contained in the minutes (Exhibit P1) of the said meeting. The publication complained of is what transpired at the said meeting on the 10th June, 1983. No other publication is complained of in the statement of claim. The respondents in their statement of defence (paragraph 12 wrongly numbered 7) copiously pleaded an occasion of qualified privilege and gave particulars of the qualified privilege. The averments of the respondent’s setting up a defence of qualified privilege have been set out earlier in this judgment.
It is my considered view that the communication made by the union at the meeting about a “house at Isolo” and about the plaintiff on a question by the chairman is a communication made by a “person (or persons) who had an interest in making such a communication, and the person (or persons) to whom it was made had a corresponding interest in having it made to them.” It is my further view that the occasion in which it was made was an occasion of qualified privilege. For the appellant to succeed, he must file a Reply and plead and prove express malice.
This, the appellant failed to do.
What is worse in the appellant’s case is that it is not the publication that he pleaded that he gave evidence of. In his statement of claim he pleaded that “by the minutes of the said meeting of Friday, 10th June, 1983 at 10.30a.m., the defendants falsely and maliciously published of, and concerning the plaintiff the following, that is to say, A HOUSE AT ISOLO……” He did not plead the person to whom the publication was made. In his evidence in court his only witness (D.W.2) said that Mr. Ajayi (1st Respondent) delivered a pamphlet containing the minutes of the meeting to him at the Land Department of Lagos State at Alausa. No such publication was pleaded and so the evidence of the D.W.2 as to what transpired between him and 4th respondent goes to no issue. There is no evidence that the respondents published anything at the said meeting. Exhibit P1 does not show that. No witness said so. It was only the appellant who gave legally admissible evidence for himself in the whole case. Most unfortunately for the appellant, he was not present at the meeting and so could not give any evidence as to what transpired at the meeting. Exhibit Plan which the appellant founds his claim says that “the union alleged” what the appellant is complaining about. The respondents have not been shown to have published the words complained of, and that, again, ought to be the end of the appellant’s case. The crucial matter in a case of libel or slander is publication. Once a publication is not properly pleaded and proved the case is bound to collapse. It is publication that gives such a case its cause or action.
Issues No. 1, 2 and 5 in the appellant’s brief of argument and issues No (a) and (c) in the respondents’ brief can be dealt with under the umbrella of the weight of evidence. There are sufficient facts to support the finding of fact made by the learned trial judge. There is no basis for disturbing the said findings.
In the final analysis this appeal has no merits and is hereby dismissed. I affirm the judgment of the lower court. The respondents shall have the costs of this appeal assessed and fixed at N500.00.
Other Citations: (1992)LCN/0127(CA)
