Cletus Uwadiegwu Ogbonnaya & Anor V. Eze R. U. Mbalewe (2004)
LawGlobal-Hub Lead Judgment Report
KUMAI BAYANG AKAAHS, J.C.A.
This appeal is against the decision of the High Court of Imo State, presided over by Hon. Justice Ogu-Ogoagwu in suit No. HOW/352/86, which was delivered on 19/3/91. The subject matter of the proceedings in the court below is alleged libel published in the 15th August, 1986, issue of the Imo Community Concord which is a weekly newspaper.
The plaintiff now respondent in the appeal is the traditional ruler of Uvuru Autonomous Community in Aboh Mbaise Local Government Area of Imo State and goes by the title of Eze Oha 1 of Uvuru Ikedinairi. Before his ascension to the throne as a traditional ruler of Uvuru Autonomous Community, he worked with the SCOA (Nigeria) Limited for 37 years where he rose to become the General Manager iles Division before retiring in 1982. He participated in Community Service by being a member of the Uvuru Development Union (U.D.U.). He also served as the Chairman Mbaise Traditional Rulers Conference from January, 1985, to February, 1990.
He was a member of the Imo State Council of Chiefs. He holds the chairmanship of the following companies namely:
(1) Everlast Industries (Nig.) Limited;
(2) International Management System Limited;
(3) M. K. Engineering Ltd.; and
(4) Rumba (Nig.) Limited.
Originally, there were three (3) defendants in the suit. The 1st defendant, one of the subjects of the plaintiff/ respondent is a well known public figure in Owerri, Imo State. The 2nd and 3rd defendants are the editor and publisher respectively of the Imo Community Concord.
The plaintiff sued the defendants both jointly and severally claiming damages for libel because they published an article concerning the plaintiff by way of his office as a traditional ruler in an article in the Imo Community Concord Edition of 15th day of August, 1986, bearing the caption: “Uvuru Community Demands Eze’s Removal”. At the hearing, the 1st defendant who testified as DW3 tendered an unreserved apology to the plaintiff which the latter accepted. Thereupon plaintiff’s counsel applied to withdraw the claim against the 1st defendant and the claim against him was struck out. The plaintiff proceeded against the 2nd and 3rd defendants and obtained judgment against them and was awarded N450,000.00 as damages. It is against this judgment that the remaining defendants decided to appeal.
The original notice of appeal contained two grounds on which the appellants’ brief dated 26/11/99, raising a single issue for determination was based. A motion which was brought seeking leave to argue additional grounds of appeal was granted on 15/3/2004, but the appellants’ brief was not amended. The arguments in the respondent’s brief asking this court to strike out paragraphs 4.02 and 4.03 of the appellants’ brief since no complaint was made either in the original grounds or in the issue framed raised any argument on pleading express malice as a rebuttal to a plea of qualified privilege and fair comment must have been responsible for the filing of the additional grounds of appeal. The issue formulated in the appellants’ brief is:
“Whether the learned trial Judge rightly held the appellants liable for libel in the circumstances of this case?”
The respondent also filed his brief of argument raising two issues, namely:
“(1) In the conduct of the proceedings did the Judge accord the appellants fair hearing?
(2) Is the liability of the defendants in the suit joint or several or are they joint tortfeasors?”
The appellants argued that there was a denial of fair hearing by the learned trial Judge when he failed to evaluate the evidence of DW1 and DW2 and also his refusal to allow the appellants a reasonable time or ample opportunity to present their defence as compared with the respondent who was indulged in every latitude.
Learned Counsel contended that the appellants raised a defence of qualified privilege and fair comment in their pleadings, but the respondent failed to reply and plead any particulars of malice against the appellants. This failure he submitted is fatal to the respondent’s case and relied on the following cases for the submission: Lardner Sketch Publishing Co. Ltd. (1979) 3 LRN 77; Daily Times Nigeria Ltd. v. F.R.A. Williams (1986) 4 NWLR (Pt. 36) 526; S. B. Bakare & Anor. v. Alhaji Ado Ibrahim (1973) 6 SC 205.
It is learned Counsel’s contention that as registered newspaper publishers, the appellants have a duty to inform the general public of events which occur in the society on matters of public interest in the absence of any malice on their part and it was not disputed that a public demonstration took place which the appellants merely reported.
As the respondent pleaded and maintained in evidence that the 1st defendant at the trial was the prime mover of the demonstration and publication of his discharge after DW1 and DW2 had testified confirming that the demonstration (which the appellants covered and reported) actually took place, their liability must therefore flow from the liability of the 1st defendant as their report was factual. Although, the 1st defendant apologised to the respondent, he did not admit on any occasion that the words published were false and so the issue for determination is whether the event they reported, i.e. demonstration occurred or not.
This the trial court never found as a fact that it did not occur and this occasioned a miscarriage of justice. He maintained that the discharge of the 1st defendant should imply a discharge of the appellants since the respondents’ witnesses testified that the publication did not change their regard towards the respondent and urged the court to allow the appeal and set aside the judgment and either dismiss the plaintiff’s claim or order a trial de novo.
In his reply, learned Counsel for the respondent argued that in the particulars of claim, the plaintiff’s claim is said to be jointly and severally and that it is trite law that a claim against several defendants may be made jointly and severally or in the alternative. It is his contention that the appellants have no-where demonstrated that as joint tortfeasors, the withdrawal of the claim against the 1st defendant would automatically lead to the abatement of the claims against the other defendants. The attention of this court was drawn to the amended statement of claim, which incorporated particulars of “express malice”.
Although, he conceded that the particulars should have been better set out in a reply, he argued that the appellants have not demonstrated what prejudice or detriment they have suffered by the particulars being incorporated in the further amended statement of claim. He urged this court to strike out all the submissions contained in paragraphs 4.01 – 4.03 (pages 3 – 5) of appellants’ brief as they do not relate either to the grounds of appeal filed by the appellants or to the issues for determination formulated by them in the appeal.
Dealing with the issue of fair hearing, learned Counsel for the respondent observed that the problem raised by the appellants in their brief of argument is to know where to draw the line between fair hearing or bias and the exercise of a Judge’s right to grant or refuse an adjournment. While agreeing that fair hearing is a right guaranteed by the Constitution, learned Counsel argued that justice in a case must be done to all parties and not just to one party alone as the constitutional right to fair hearing inures to the benefit of the appellant and the respondent alike. He is of the view that the adjournment, which was sought for by the appellants, was intended to frustrate the hearing of the case, as counsel well knew that the learned trial Judge would soon proceed on retirement. Learned Counsel therefore urged us to dismiss the appeal.
I wish to observe that in this appeal, the appellants’ brief did not specifically raise the issue of fair hearing, even though there is a complaint of fair hearing in ground 1. It is expected that lack of fair hearing should have been made one of the issues in the appeal instead of making a passing reference to it. Having filed additional grounds of appeal the proper thing to do was for the appellants to amend the brief but they did not. It was necessary to amend the appellants’ brief, since the respondent had argued in paragraph 4.02 that neither in the grounds of appeal nor in the issues formulated did the appellants raise any argument on express malice in rebuttal to the plea of qualified privilege and fair comment.
It is in an attempt to remedy the error that the appellants filed the application to argue additional grounds of appeal and raised the complaint in ground 4, which read:
“The learned trial Judge misdirected himself in law, when he failed to advert to or address the principal issue which arose for trial from the pleading and evidence at the trial namely:
‘Whether the publication complained of falls within the cover of the defence of privilege which the appellants raised in their pleadings.’
Particulars of Misdirection
(i) The appellants pleaded the defence of privilege and that the publication was made in the course of their duty as a registered newspaper publisher, on a matter of public interest.
(ii) The respondent filed no reply to the appellants’ pleadings, but they only alleged malice in their statement of claim, which did not actually pertain to the appellants.
(iii) It was admitted on record that the respondent is a public figure and the protest published pertained to a matter of public interest.
The learned trial Judge had a duty to identify that issue and to decide on it, but he failed to do so and occasioned a miscarriage of justice.”
It is my view that the issue raised and argued in paragraph 4.01 (page 3) of the appellants’ brief flows from the ground of appeal reproduced above and notwithstanding the argument of the respondent’s counsel in paragraph 4.02 of the respondent’s brief, this court is in a position to deal with the arguments on the issue. After all, a decision arrived at by the court which is based on a technicality is no decision as technicality in the administration of justice shuts out justice. It is therefore better to have a case heard and determined on the merits than to leave the court with a shield of victory on mere technicality – per Adio, JSC in Ayan Koya v. Olukoya (1996) 4 NWLR (Pt. 440) 1.
In dealing with the issue in this appeal, it is necessary to consider the pleadings and evidence adduced and their appraisal by the learned trial Judge to see if the decision arrived at is correct or not. But before then, it is necessary to state that libel is actionable per se while slander is actionable only on proof of actual damage. (See Street on Torts 4th Edition, page 290). The principle of law regarding liability is that where a defamatory matter is contained in a book, periodical or newspaper, there are normally a series of publications each of which constitutes a separate tort. First, there is a publication by the author to the publisher for which the author is solely liable. Secondly, there is the publication by the author and publisher jointly to the printer, for which the author and publisher are jointly liable. See: Cuther v. Mcphail (1962) 2 Q.B. 292. It is usually open to the plaintiff to sue in respect of the separate publications set out above.
See: Cuther v. Mcphail supra at page 296. The submission by learned Counsel for the appellants that as their liability flows from the liability of the 1st defendant (who the plaintiff described as the prime mover of the libelious publication), his discharge should imply their discharge too would depend on whether his discharge amounts to the release of a joint tortfeasor which would have extinguished the cause of action against the other tortfeasors.
The general rule at common law is that where there is a joint cause of action against two or more persons, a discharge as against one of them operates as a discharge against all. If accord be made with one joint tortfeasor and satisfaction accepted, or if he be released, all others are discharged. See: Bulmer Rayon Co. v. Freshwater (1933) A.C. 661. In the words of A. L. Smith, L. 1. in Duck v. Mayeu (1892) 2 Q.B. 511 at p. 513:
“It is, we think, clear law, that a release granted to one joint tortfeasor or to one joint debtor, operates as a discharge of the other joint tortfeasor, or the other joint debtor, the reason being that the cause of action, which is one and indivisible, having been released, all persons otherwise liable thereto are consequently released.”
The common law rule was practically most inconvenient to the plaintiff, and was accordingly limited by the courts in various ways. Thus, it was held that a covenant or agreement not to sue does not get rid of the cause of action and therefore only operates in favour of the person with whom it is made. See: Hutton v. Eyre (1815) 6 Taunt 289; Gardiner v. Moore (1969) 1 Q.B. 55.
It was also held that an order of court staying an action against one joint tortfeasor, pursuant to such an agreement, does not extinguish the cause of action against the other. See: Apley Estates Co. v. De Bernales (1947) Ch. 217. And most important, if a party purports to release one wrongdoer with a reservation of his right of action against another, this is to be taken as an agreement not to sue rather than as a release. This was the view of Lord Diplock in Bryanston Finance v. De Vries (1975) 2 WLR 718 at 741, which Lawton, L. J. agreed with, but Lord Denning, M. R. thought differently.
What is the position as regards the situation here in Nigeria? The Torts Law, Cap. 125 of the Laws of Eastern Nigeria, Vol. VII deals with the issue under section 5, which provides as follows:
“5(1) Where damage is suffered by any person as a result of a tort (whether crime or not) –
(a) judgment recovered against a tortfeasor liable in respect of that damage shall not be a bar to an
action against any other person who would, if sued, have been liable as a joint tortfeasor in respect of the damage;
(b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered, or for the benefit of the estate, or of the dependant of that person, against tortfeasors liable in respect of the damage (whether as joint tortfeasors or otherwise) the sums recoverable under the judgment given in these actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by, the judgment first given; and in any of these actions, other than that in which the judgment is first given, the plaintiff shall not be entitled to costs unless the court is of the opinion that there was reasonable ground for bringing the actions;
(c) a tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been liable in respect of the same damage whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from a person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought.
(2) In any proceedings for contribution under this section the amount of contribution recoverable from a person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage; and the court shall have power to exempt a person from liability to make contribution, or to direct that the contribution to be recovered from a person shall amount to a complete indemnity.”
This provision is similar to section 6(1) & (2) of the Law Reform (Married Women and Tortfeasors) Act, 1935, which was considered by the Privy Council in Wah Tat Bank Ltd. v. Chan Cheng Kum (1975) 2 WLR 475, where it was decided that if the plaintiff takes judgment against one of the defendants for an ascertained sum, and it is satisfied, it is a barrier to his going on against the other. But if that judgment is not satisfied, the plaintiff is able to go on against the other wrong doer and get judgment against him, but he cannot get more in total than against the first. In deciding not to proceed against the 1st defendant for what he considered to be a libelous publication it would appear to me that the plaintiff merely released the 1st defendant but reserved his right of action against the other defendants, which he is entitled to do. The decision by the plaintiff to discontinue the action against the 1st defendant did not therefore extinguish his cause of action against the 2nd and 3rd defendants.
Learned Counsel for the appellants argued that the appellants raised a defence of qualified privilege and fair comment but the respondent failed to file a reply to plead any particulars of malice against the appellants and this is fatal to the respondent’s case. But in his submission, learned Counsel for the respondent referred to the further amended statement of claim in which the particulars of express malice were incorporated as they were set out in paragraph 14 of the said amended statement of claim. The further amended statement of claim dated 29/10/90 and the amended statement of defence dated 24/1/91 are to be found on pages 203 – 208 and pages 281 – 284 of the records respectively.
In paragraphs 13 and 14 of the further amended statement of claim the plaintiff pleaded as follows:
“13. On or about the 15th day of August, 1986, the defendants, falsely, maliciously and without any justification, wrote printed and published, and/or caused to be written, printed and published, on page 12 of the issue of the said Imo Community Concord, dated Friday, 15th August, 1986 of and concerning the plaintiff in the way of his office as a traditional ruler, the following defamatory words, that is to say:
‘Uvuru Community Demands Eze’s Removal’
Members of Uvuru community in the Aboh-Mbaise Local Government Area have called for the removal of their incumbent traditional ruler, Eze R. U. Mbalewe. This is the latest demand of the members, who had previously petitioned the State Governor on various vexed issues.
Among their complaints is an alleged indiscriminate imposition of levies on Uvuru people without rendering account of money collected, and without any sign of projects for which the money collected was used.
They specifically alleged that Eze Mbalewe, in 1983, collected six Naira from all Uvuru Women for the erection of a Maternity Ward at Uvuru Basic Health Centre, but unfortunately, the said project was never carried out.
The proceeds from 475 market stalls at Orie Uvuru Market since 1977 have been kept by Eze Mbalewe, without rendering any account, they further alleged. According to Mr. G. A. Isiguzo’s letter of July 1, to Eze Mbalewe and copied to Chief M. U. Amanze, Nze Peter Amacha and Mr. C. U. Chukwuka, the traditional ruler was given 21 days ultimatum within which to render the accounts.
14. The aforesaid publication as contained in the said Imo Community Concord referred to in paragraph 13 of the amended statement of claim above, which is expressly malicious, false and without any justification is hereby pleaded and to be founded upon at the trial.
Particulars of Express Malice:
(a) The aforesaid publication was excessive in that it was published not only to people in Uvuru Autonomous Community, it was also published to people who had no business with the matter or anything concerning Uvuru Autonomous Community, or any corresponding interest or duty to receive such information; for example, copies of the said Imo Community Concord of 15th August, 1986, containing the said libellous publications against the plaintiff were bought and read by many people within and outside lmo State, and those include Dr. Rowland Anyanwu, Arch. Prince A. O. Oyenuga, Eze G. C Njoku, Mr. Henry H. Agbamu, Chief H. E. H Onukogu, Chief M. U. Amanze, Mr. Nelson Olumba, Mr. & Mrs. Eugene lroha and many others, known and yet unknown. After reading the aforesaid publication, Mr. Henry H. Agbamu, who is the Company Secretary/Legal Adviser of SCOA Nigeria, Limited, where the plaintiff last worked, could not hide his feelings and consequently wrote to the plaintiff a disturbing letter. The said letter dated 31st October, 1986 is hereby pleaded.
(b) At the time the aforesaid libellous article was published, the defendants knew or ought to have known that the publication or the matters published were false.
(c) Before the aforesaid publication, the 1st defendant in company of his friend, the 2nd defendant on record: were attending and watching the criminal trial of the accused persons in Aboh Mbaise Chief Magistrate Court 1 in Charge No. AM/432C/86 Commissioner of Police v. Nnodim Amuruibeanya & 9 Ors. The criminal charge was as a result of two letters written to the plaintiff and three others by Barrister G. A. Isiguzo on behalf of the accused persons and their supporters of which the 1st defendant was one of the accused supporters. The two letters, dated the same 1st July, 1986, of which one is written with the said Barrister’s headed paper were tendered at the said criminal trial.
Photocopies, or certified true copies of the said two letters of 1st July, 1986 respectively, shall be founded upon at the trial. Imo Community Concord Newspaper of plaintiff is hereby pleaded.
(d) The reply of the aforesaid two tellers of Barrister G. A. Isiguzo were replied and signed by the principal officers of the Uvuru Development Union, namely, the chairman, the secretary and the treasurer and copied to the plaintiff.
If the defendants appreciated the evidence of the witnesses in the said Magistrate’s Court trial and also cared to read the reply of the said two letters from Barrister Isiguzo, they would have known that the plaintiff had no business on the facts published in the said Newspaper. The said reply letter to Barrister Isiguzo or that copied to the plaintiff is hereby pleaded and to be founded upon at the trial.
(e) Even if there were other publications as pleaded in paragraph 6(d)(i), (ii), (iii), (iv) and (v) of amended statement of defence of the 2nd and 3rd defendants, the publication the plaintiff is complaining of in this action is that published in the aforesaid Imo Community Concord of 15th August, 1986.
(f) The defendants before the publication knew that or Development Union (U.D.U.) the plaintiff cannot hold ought to have known that by the Constitution of Uvuru any office, including the office of a treasurer or that of a financial secretary. The said Constitution of the said U.D.U is hereby pleaded and to be founded upon at the trial. The plaintiff further states that if he signs any document containing a decision of the Uvuru Development Union (U.D.U) or a decision of its executive, he does so as one of his legal functions as the traditional ruler to encourage development projects of his community, and not as a member of the Uvuru Development Union Executive.
(g) The 1st defendant, who is the prime mover of this campaign of calumny against the plaintiff, has at all times privately and publicly opposed the plaintiff as a recognised traditional ruler of Uvuru Autonomous Community and stops at nothing to defame him. The 1st defendant is not a Chief in Uvuru Autonomous Community, nor did the plaintiff authorise any other traditional ruler to confer chieftaincy title on him. It is the custom of the Mbaise Council of traditional rulers to seek and obtain permission from the traditional ruler of the person intended to be conferred a chieftaincy title before such conferment. In pursuance of the aforesaid 1st defendant’s campaign of calumny against the plaintiff, he is shown in a photograph wearing an Igbo traditional dress appearing at the same page 12 of the said Imo Community Concord of Friday, 15th August, 1986, when he was handing over what was described as a petition against the plaintiff to one Mr. Eze C, addressed as the representative of Aboh Mbaise Local Government Area.”
The 2nd and 3rd defendants averred in paragraphs 5 and 6 of the amended statement of defence as follows:
“5. In answer to paragraph 13 of the amended statement of claim the 3rd defendant admits publishing the words quoted in the said paragraph 13 of the amended statement of claim, but deny that the words were published falsely or maliciously or in any manner libellous of the plaintiff.
6. In further answer to paragraph 13 of the amended statement of claim the 2nd and 3rd defendants say that the said words complained of were published bona-fide and without malice on an occasion to qualified privilege that is to say:
(a) The words complained of are a fair and accurate report published in the Imo Community Concord Newspaper of the proceedings at a public meeting/demonstrations bona-fide and lawfully held for the purpose of furthering a matter of public concern to which newspaper reporters were admitted.
Particulars
(i) On or about August, 1986, there was a public demonstration/meeting at the Aboh Mbaise Local Government Council Headquarters by the people of Uvuru Autonomous Community against the plaintiff, their Eze, calling for the Eze’s removal as their Eze. A petition to that effect was handed over by the demonstrators to the Secretary of the Aboh Mbaise Local Government Council.
(ii) Information about the demonstration reached the press and several journalists including those from the Satelite, the Punch and the Imo Community Concord Newspapers were present. Publications similar to the one in the Imo Community Concord complained of, were first published by the Satelite of Friday, 8th August, 1986 and the Punch of Saturday, 9th August, 1986. These publications are hereby pleaded in order to show that the public demonstration aforesaid took place and that newspaper reporters were admitted.
(iii) The 2nd defendant, a journalist and at all material times under the employment of the 3rd defendant was one of the journalists present during the public demonstration.
(b) The words complained of were published in the discharge of a public duty on a matter of public concern and for the benefit of the public and without any malice towards the plaintiff and in the honest belief that the statement therein were true.
Particulars
(i) The 2nd defendant is a journalist, who was present at the public demonstration by Uvuru people, against the plaintiff an Eze, at the Aboh Mbaise Local Government Headquarters in August, 1986.
(ii) It was the duty of the 2nd defendant to report what happened in his presence. It was also the public duty, of the 3rd defendant to publish what happened – the fact of the demonstration.
(iii) There has not been any previous quarrel or misunderstanding between the plaintiff and either the 2nd or 3rd defendant, who have no ill-motive in discharging their duty as journalist and newspaper publishers respectively:
(c) The words complained of were published under a sense of duty to inform the public pertaining a subject matter in which, both the 2nd and 3rd defendants and the public to whom the statements were made have a legitimate common interest.
Particulars
(i) The publication was made bona-fide on the subject matter of the public office of Eze of Uvuru Autonomous Community. The 2nd and 3rd defendants have interest to report on the conduct and affairs about public institutions. The public has a corresponding interest or duty to receive information pertaining to public institutions.
(ii) The Eze of Uvuru Autonomous Community is a public institution recognised by the Government. Matters affecting or touching on his conduct of affairs of the community or about his administration are of interest to newspapers and the public. The 2nd and 3rd defendants are under a sense of duty to inform the public about that subject matter and the public have the corresponding duty and interest to receive the information.
(iii) During the aforesaid demonstration at the Aboh Mbaise Local Government Headquarters touching on the Ezeship of Uvuru Autonomous Community, information also reached newspaper reporters in the discharge of their duty that Uvuru Community previous to demonstration written letters dated 1st July, 1986 and 24th July, 1986, through their Solicitor G. A. Isiguzo, Esq. to the plaintiff and the Divisional Police Officer, Aboh Mbaise respectively, in connection with the matters in controversy within the Uvuru Autonomous Community.
(iv) The content of the petition given by the Uvuru demonstrators to the Secretary of the Aboh Mbaise Local Government Council in August, 1986, was made known to the press during the public demonstration/meeting aforesaid.”
In paragraphs 7 and 8 of the 1st defendant’s amended statement of defence he pleaded the following facts:
“7. The said words are part of a fair and accurate report published in the said newspaper of the proceedings of a public meeting bona-fide and lawfully held for the purpose of furthering a matter of public concern to which newspaper reporters were admitted.
8. The said report was published without malice and the said proceedings were of public concern and the said publication was for a public benefit.”
The 1st defendant did not retract what he averred in his amended statement of defence. His apology came about as a result of the toll the misunderstanding between him and the plaintiff was taking on the development of the community. He did not say that what the newspaper carried never took place. Earlier at page 366 of the records, the learned trial Judge had reproduced what 1st defendant did in court, which led to the withdrawal of the suit against him when he stated at lines 1 – 13:
“He testified that the plaintiff is his traditional ruler, that he had ‘been to the plaintiff to plead with him to forgive me in whatever form I have offended him in view of the fact that the misunderstanding between us has affected the development of my community – Uvuru Autonomous Community of which plaintiff is the traditional ruler.’ I am sincerely sorry for what I have done to offend the plaintiff. I appeal to the court to give this my passionate apology to the plaintiff a blessing.”
Despite the apology tendered by the 1st defendant, the plaintiff was not relieved of the burden of filing a reply to the defence of qualified privilege raised by the appellants in paragraph 6 of the amended statement of defence. There is no dispute that a public demonstration took place which the 1st appellant reported and was subsequently carried by the Imo Community Concord of 15th August, 1986. All the witnesses for the respondent agreed under cross-examination that the publication complained of was made on a matter of public interest and that the respondent is a public figure whose affairs should be of interest to the public. The appellants did not make any comment in respect of the allegations made by the protesters. They did not plead justification. The appellants did not comment in respect of the allegations made by the protesters, but merely published that the demonstration took place and the allegations the demonstrators made against the respondent.
Since they denied that the publication was malicious, and proceeded to plead qualified privilege, for the respondent to succeed in his action, he had to deliver a reply giving full particulars of the facts from which express malice which negatives the defence of qualified privilege would be inferred. See: S. B. Bakare & Anar. v. Alhaji Adda Ibrahim (1973) 6 SC 205; Lardner v. Stech Publishing Co. Ltd. (1979) 3 LRN 77; Daily Times Nigeria Ltd. v. F.R.A. Williams (1986) 4 NWLR (Pt. 36) 526. From the pleadings which have been reproduced in this judgment, there is no doubt that particulars of malice were given in paragraph 14 of the further amended statement of claim but they relate only to the 1st defendant. As explained by Ibekwe, Ag. J.S.C. in Bakare v. Ibrahim supra at page 462:
“It should always be borne in mind that, once the plea of fair comment or qualified privilege is made out, as it has been in the present case, the inference of malice is rebutted, and the burden is thrown upon the plaintiff of showing and proving ‘express malice’ against the defendants. This is generally known as ‘malice in fact’ and to be able to discharge this onus at the trial, it is important that the plaintiff should deliver a reply, alleging express malice and giving particulars of the facts from which such malice is to be inferred.”
Learned Counsel for the respondent sought to justify the continuation of the action against the appellants on the ground that the claim was made both jointly and severally. Since the prosecution of the claim and liability of the appellants thereof is based on the principle of severance, it follows therefore that the reply to be delivered pleading express malice must relate to the appellants and if this is not done the appellants cannot be found to be liable. The conclusion I have reached is that no reply was delivered pleading express malice which negatived the defence of qualified privilege or fair comment made by the appellants in the amended statement of defence; consequently the action ought to have failed.
The conclusion which I have arrived at should have ended this judgment, but I find it very necessary to comment on the whole conduct of the trial. Even from the printed records a discernible inclination by the trial Judge to the respondent can easily be detected so much, so that it cannot be said that the entire proceedings were fairly and impartially conducted. There can be no justification whatsoever for the haste in which this case was handled simply because the learned trial Judge was proceeding on retirement. In the result, I find there is merit in the appeal and it is accordingly allowed.
The judgment of Ogu-Ogoagwu, J. delivered on 19/3/91 is hereby set aside; so also is the award of damages of N450,000.00 and costs.
In its place the plaintiff’s action fails and it is hereby dismissed. I award N5,000.00 costs in favour of the appellants against the respondent.
Other Citations: (2004)LCN/1579(CA)
