M. Iloabachie, Esq. V Benedict N. Iloabachie (2005)
LAWGLOBAL HUB Lead Judgment Report
PATS-ACHOLONU, J.S.C.
The appellant had instituted an action against the respondent for defamation for publishing a document which he complained had libelled him. The alleged libellous statements were said to have been published by the respondent sequel to a complaint by him that the appellant had committed certain ignoble acts in respect of the sale or purported sale of one Peter Iloabachie’s property by the appellant which land is situate at No.1 Allen Lane, Onitsha. The statement claimed that the sale was fraudulently made without any authorization or consent of the respondent and that the act of the appellant by the sale bespeaks of unprofessional and unethical behaviour as the appellant, a mere grandson of late Peter Iloabachie was not the owner of the property which said property devolves on the whole family, i.e. the children of Peter Iloabachie. The appellant said that by the said publication; his name was tarnished and brought into odium and ridicule more so as he is a solicitor, an alumnus of prestigious University of Nigeria, Nsukka, and is married to a woman from a reputable family in Edo State. He stated that he is a member of Inwelle Age Grade, Ogidi, and happens to be the only solicitor from Ogidi appointed by their Igwe (King) to be a member of an arbitration panel in the area. The respondent replicando stated that the property purportedly sold belongs to his late father Peter Iloabachie and that during his lifetime no permanent building was erected there after the land was bought from Mgbelekeke family of Onitsha. It was his case that in 1963, the members of Peter Iloabachie family including the respondent contributed money to put the magnificent edifice that now adorned the place. He denied that the property belonged to Alfred Iloabachie i.e. the father of the appellant. The respondent stated that as the only surviving son of Peter Iloabachie and the head of that family, the publications he made in that capacity in respect of the sale were privileged and were addressed to the people to whom such letters should be written in the circumstances and denies any liability.
In the High Court, the suit filed by the appellant was dismissed, and on appeal to the Court of Appeal his appeal was equally dismissed. Thereupon he filed another appeal to this court and from the grounds of appeal he distilled 4 (four) issues for determination, which are as follows:
3.01 Whether from the evidence led in this case, the defence of qualified privilege is available to the respondent herein having regard to the vital ingredient of reciprocity involved in the said defence and which the respondent failed to establish
3.02 Whether the appellant filed reply to the respondent’s amended statement of defence alleging malice in order to meet the defence of qualified privilege pleaded by the respondent
3.03 Whether from the respondent’s pleading and evidence, the defence of estoppel by conduct can avail the respondent
3.04 Whether the judgments of the courts below are supportable having regard to the grossly deficient evidence of the respondent
Respondent framed only one issue which is:-
“Whether the Court of Appeal was justified in dismissing the appellants appeal then before it or was the judgment of the Court of Appeal right”
I must say straight away that the issues made out by the appellant appear woolly, overly generalized and do not reflect in the most succinct and discerning manner the main issues to be pointedly determined by the court. It is nebulous. Issues formulated should have the distinctive quality of clarity, precision and accuracy. That observation notwithstanding I shall now take the first issue.
The appellant’s counsel referred the court to the observations of the court below which run thus;
“The concurrence of the right and duty on the part of the writer and addressee of ex D is the basis of their common interest and is sufficient to sustain the defence of qualified privilege of the respondent … As regards the publication of the libel to Comrade Emeka Iloabachie the privilege which applies to the addresses of the two letters exs. “C & D also applies to him.”
The learned counsel for the appellant submitted that it must be a common interest between the maker of the statement and the person to whom it was made to sustain the defence of qualified privilege. He referred the court to Watt v.Longsdon (1930) 1 K.B. 130, White v. Stone Ltd. (1939) 2 K.B. 827 at 535 and Atoyebi v. Odudu (1990) 6 NWLR (PU57) 384; (1990) 10 S.C.NJ. 52 at 66. The kernel of the appellant’s case is that the respondent merely pleading that the addresses of the persons to whom the publications regarded as offensive to the appellant were interested in the outcome of the No. 1 Allen Lane, Onitsha, is not enough. He submitted that they must be called to show that they have interest in the matter. He contended that there was no evidence linking whatsoever interest the addresses of exh. C & D have with the land in question. (exh. C and D are the letters regarded as defamatory). I must hasten to add here and it must be pointed out that this court is not concerned with the dispute as to the ownership of No. 1 Allen Lane, Onitsha but with the alleged libelling of the appellant. This alleged libel arose from the perceived right whether convoluted or not of the respondent to publish and inform some people of the sale of the property said to belong to the whole family of Iloabachie.
The appellant is the son of Alfred the deceased first son of Peter Iloabachie. In the course of the proceedings in this case the appellant repudiated the assertion built in the case of the respondent that the publication of the alleged defamatory statements was in any case privileged in that the dissemination was made to people who should be made to be aware of the development in respect of No.1 Allen Lane, Onitsha. Let me delve in a short form into the nuances of the expression “privileged” and “qualified privilege”. In the case of Nigeria Television Authority v. Ebenezer Babatope (1996) 4 NWLR (Pt. 440) 75 at p. 6 Uwaifo, JCA (as he then was) said
“Qualified privilege is a defence to an untrue publication. It can only be claimed however when the occasion of the publication is shown to be privileged.”
In that case one Chief Daboh had published of the respondent, then the director of U.P.N. (a political party in the 2nd Republic) that he the respondent collected N250,000 from each of the five Governors in 5 States to make same available for the party’s campaign in 1983. The respondent went to court. The appellant while admitting that it made the broadcast, denied making it maliciously and contended that it had the constitutional duty to disseminate such information having regard to the position held by the appellant.
In that case I said as follows:
“Can it in all honesty be said that given the facts that are attendant to this case that the circumstances in which the publication was made was not protected by defence of qualified privilege.
In this case, I think that Nigerians are entitled to know what goes on in a party organization. It is their duty to be so informed for the people did not and cannot be said to have taken the political parties as secret organizations whose activities when sordid should not be disclosed to them. Some party men could only have known of what happened by the publication. In that case it is the moral duty of Nigerians to be informed as it is their duty to receive and know such a matter.”
Consider too the case of Pullman v. Hill Ltd. (1891) 1 QB. Where Lord Esher, M. R. said:-
“An occasion is privileged when the person who makes the documentation has a moral duty to make it to the person to whom he does make it and the person who receives it has an interest in hearing it. Both these conditions must exist in order that the occasion may be privileged.”
I believe that where a court is considering the defence of privilege whether qualified or not, there are some empirical factors that should be taken into consideration and these include the interest of any of the persons to whom the document was published, and the circumstances of the matter in question. If the person against whom the publication is made is a public officer, consideration should be given to the position he holds vis-a-vis the interest of the public or those to whom the alleged and or offensive publication was made to. Equally too, the court should consider the motive for the publication to examine whether it is actuated by purely altruistic principles or tendencies, or malicious and injurious motive. See James v. Baird (1916) S.C. 158 at 163.
In his summation of the case the learned trial Judge had made these findings:
“In exhibit “S” at pages 2 and 3, it was untrue for the plaintiff to inform the defendant that;
1.There is no single document of title concerning the property, for my step mother destroyed all of them”.
2.”The documents were never registered at the Land Registry from where I could apply for and obtain a certified true copy”
3.”Nevertheless, I continued scouting for a buyer but no person was ready to part with his money without documents evidencing root of title”.
4.”When I narrated my plight to a lawyer from Onitsha who is my close friend, he came to my rescue by taking me to the people of Mgbelekeke who are the original owners that granted same to my grand father”.
5.”An agreement was reached that they would enter into an agreement with me on the basis of that document, I could then sell the property”.
6.”Their fees for the arrangement was eventually priced down to N200,000.00″ I was helpless because you cannot sell a property without a written evidence of ownership and so I accepted their condition”.
7.”It was on that score that one man from Oba by name Mr. Obi who is a pharmacist based in America came into contact with me and we settled the price at N1.2 million and I accepted same since he was the highest bidder”.
8 I then paid the sum of N200,000.00 to the Mgbelekeke family and the sum of N100,000.00 on commission to the land agents”.
The tort of defamation, whether libel or slander, relates essentially to damages to the character of the person. In other words a plaintiff who institutes an action for libel has invariably put his character in issue. He is understood to be telling the whole world what a good person he is, and stating that some one is trying to destroy his enviable good name. He puts his reputation at stake depending of course on what the defamation is all about. In the course of consideration of the case but particularly as in this case where the appellant has shown through his pleadings what a person of great repute and of unblemished character he is, he has literally thrown his hat on the ring, caution to the wind, and dares the defamer to disprove his good and admirable character. Where in the process of the proceedings, facts elicited in the evidence portray him as an inveterate liar incapable of distinguishing truth from falsehood he might have unwittingly succeeded by his inconsistent statements and falsehoods destroyed his character which he has held out to the world to be clean. In such a case he cannot complain if the court finds out that he is a chronic, or penitus insitus liar.
The High Court took great exception to this man of seemingly great repute who swore falsely in respect of ex. L. where he stated that the only property of his father A. C. Iloabachie is No.1 Allen Lane, Onitsha, yet he mentioned not less than 5 houses belonging to the same late A. C. Iloabachie during his cross-examinations. The court below had in relation to the observation of the trial court to the inconsistent testimony in respect of the number of property owned by A. C. Iloabachie and the false oath in respect to ex. L. commented tritely and observed as follows;
“On that requirement, the appellant is on a sticky wicket as learned counsel for the respondent has submitted, rather derisively, that the body of evidence from which a dent was made on the character of the appellant was not from the testimonial (sic) of the respondent who gave no evidence about the character of the appellant; rather, from the evidence given by the appellant himself extracted under cross-examination from the documents tendered by the respondent through him. The learned trial Judge expressed the view that the appellant had no good reputation or good character to protect because of ‘the revelations in the exhibits above mentioned and my observations and highlights thereof. The observations and highlights are shown on the record, in respect of exhibit ‘S’ on pages 352 – 354, exhibits ‘R’, ‘T’, and ‘Q’- 355 and exhibit ‘L’ on pages 355 – 356. Having shown as above demonstrated that the evidence on which the learned trial Judge based his finding on the character of the appellant are not from the testimony of the respondent the argument of learned counsel for the appellant that the evidence of the appellant’s character had no legal plank on which to stand is grossly erroneous as a delirious gaffe.”
Further below the Court of Appeal said:
“The subject matter of what was deposed to being an estate of a deceased person I agree with the learned trial Judge that section 63 of the Administration and Succession (Estate of Deceased Persons) Law of Anambra State is apposite. I also agree with his finding that the grant of exhibit ‘R’, i.e. the letters of Administration to the Administrator-General/Public Trustees, Enugu, by the Probate Registrar, Enugu, “was based inter alia, on exhibit ‘L’, a false inventory and a false testimony in … judicial proceedings”.
The appellant had at all times held out that he sold a property which he inherited and therefore he had no need to consult anyone. The respondent had repudiated this and based his letter under probe to ex. S written to him by the appellant. He used some words which the appellant described as being libelous and held himself out to the world to being a person of impeccable character not used to ignoble ways. Is this really so. Can this seemingly pompous and self aggrandisement stand the test when shown in the mirror of character analysis. The learned trial Judge pointed out and indeed analytically showed all the falsehoods told by the appellant including false oath. The respondent’s description of him as someone without consideration of the ethics of his profession cannot in my view be considered an overstatement seeing that the appellant’s skewed philosophical bent could be hinged on the Machivelli Philosophy that the “end justifies the means”. The respondent had libelled him as a forger and one lacking in ethics. I tend to believe that the worst mistake the appellant made was in instituting this action and putting his name in the mirror to be x-rayed. In his bid to show what a great person he is and who has been unjustifiably libelled, he cuts a very poor figure and succeeds in showing how unreliable he is and therefore really has not much of a character to protect. By this I do not mean that if a man is convicted of burglary or rape, a defamer should go scot-free by calling him a murderer or even an armed robber. In a case where a defendant feels genuinely affronted by an act of a relative in respect of disposing or alienating a property of which he the defendant strongly feels that as the head of the family, no such disposition could validly take place without his consent, and he upbraided the relation who purported to make the sale, it is his duty to inform those who ought to be told and I believe he may be exonerated by use of a language which fits the occasion having regard to the circumstances of that case.
I really believe that issue I & II ought to be taken together as issue II relates as to whether the appellant in this case filed a reply to the amended statement of defence of qualified privilege. He submitted that he filed a reply contrary to the holding of the court below and referred this court to the records. I have carefully read the paragraphs as contained in the record. It is a fact that the appellant filed a reply to the defence but the question to be determined is whether the reply is on the question of qualified privilege. I hereby set down paragraph 7 of that reply.
“(7)(i) The defendant is not in the employ of the Anambra State Government and the Director-General, Ministry of Lands, Awka did not authorize the defendant to go ahead and start publicating the said letter.
(ii) The defendant made sure that the nails in the coffin of the reputation of the plaintiff are properly fastened by clearly underlying the venomous parts of the said letter of 3/10/94 for clearer picture and ease of reference.”
A careful examination of this paragraph seems to show that of all the paragraphs in the reply this seems to be the only one with a modicum of effort to reply to the defence of qualified privilege. A reply to a defence of qualified privilege should resonate with facts and particulars that show the malicious intention of the publisher the statement. It is to say that implicit in such a publication would readily depict a mind poisoned or jaundiced by the prejudice and evil disposition bent on destructive calumny against the plaintiff. With greatest respect to the submission of the appellant’s counsel, the reply does not seem to me to wear this kind of garb. The communication to others was to my mind in order. For example it was the appellant in ex S who asked the respondent to communicate to Emeka. He cannot be heard to complain. Thus in Hunt v. Great Northern Railway Co. (1891) 2 QB 191 Lord Esher 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 a communication and those to whom it was made had a corresponding interest in having it made to them. Where those two co-exist the occasion is privileged.”
See also Giwa v. Ajayi (1993) 5 N.W.L. R (Pt. 294) 423, Ugo v. Okafor (1996) 3 N.W.L.R. (Pt. 438) 542 and Ojeme v. Momodu (1994) 1 N.W.L.R. (Pt. 323) 685 which I now cite with approval being only Court of Appeal judgments.
In order to destroy or neutralize the defence of privilege or qualified privilege, it is incumbent on the appellant to prove malice. From the facts of the case given in the letter ex. S written to the respondent, and the letters he the respondent wrote which he duly amplified in his pleadings and the evidence in court, can it really in all honesty and seriousness be contended and argued that he had no protectible interest. In other words, was the respondent not really actuated by moral consideration and what may be considered a dutiful effort to prevent the alienating of their property by someone who he claimed he was in loco parentis after his father’s death and who he helped financially during his schooling days. To my mind the people to whom the letters were written were those who ought to be informed about what was going on. It was essentially to alert them on what he considered a perfidious act of the appellant. I believe that this issue is resolved against the appellant.
Let me now address on the 3rd issue raised which is whether from the respondent’s pleadings and evidence the defence of estoppel by conduct can avail the respondent. The appellant submitted that there is nothing in the respondent’s pleadings from which the appellant or any discernible mind can infer or deduce estoppel by conduct and in this he referred the court to ex S. which the respondent pointed out was the document written by the appellant to him that made him write exs. C & D. I have read ex. S. wherein the appellant informed the respondent that due to the nature of legal practice prevailing in Onitsha he was impecunious and had decided to sell his father’s property situate at No.1 Allen Lane. He stated that he sold the house and paid Mgbelekeke family N200,000.00 (even though he denied it in court) and paid a commission of N100,000.00 to the agents. Equally too in that letter, he acknowledged the respondent as the head of the family when he said:
“We have no other earthly father to run to, but you and we pray God to give you long life to enable you see your children and also to enable you continue your laudable work to humanity … It is in the light of the above that I intend telling Emeka through you as the head of the family to tell the people occupying the main house to look for alternative accommodation”
It cannot be denied that, pained or piqued by the contents of the letter, and incensed by the brazen effrontery to sell the property which the respondent felt belongs to the family, he reacted sharply. Surely the tone of the letter ex. “s” definitely invited a response. It was inevitable and the appellant should not quarrel about the reaction of the respondent. In my view estoppel by conduct should be read in the letter.
On issue No.4 it is at all times the duty, nay the responsibility of an appellant to prove his case on the balance of probability. He is the proponent of the action. Although there may be an occasion when the burden of proof may shift, but this can only take place when the appellant has satisfactorily discharged his burden. He took umbrage with the lower court for holding that the respondent inform the appellant that the property was that of Peter Iloabachie and asked him to rescind the sale and that when he refused to comply, he, (the respondent) had to do what he did. He further submitted that even if respondent had an interest to protect, that did not give him a license to malign others. I agree with the proposition, but one had to put himself in the frame of mind of the respondent who stated that on the death of this appellant’s father he became the head of the family. Being the head of the family and as he stated, one of those who contributed to the construction of the house at No.1 Allen Lane, it would be assumed that he was angered by the sale. Besides, if the property was the one the appellant could dispose of as he liked why did he strive to inform the respondent. As I had held earlier, the respondent conceived that he had a protectible interest and in that vein he has a duty to himself at all times to do all things possible to stop or have the sale rescinded.
A proper evaluation and appraisal of the appellant’s case does not portray him as a consistent person. In one breath he hailed the respondent highly and wished that God would give him good health and longevity and in another he lampooned and upbraided him as an evil man bent on destroying him. As Shakespare said in Macbeth;
“Such welcome and unwelcome news at once. It is too hard to reconcile”.
There is simply no merit in the case. Therefore I dismiss the appeal and affirm the judgment of the court below. As I have found out that the respondent is the head of the family per the ipse dixit of the appellant, and he took the respondent as a father, it is a family quarrel badly handled by an impetuous young man, I make no order as to costs.
SC.137/2000
