M. Iloabachie V. Benedict N. Iloabachie (2000)

LawGlobal-Hub Lead Judgment Report

OLAGUNJU, J.C.A. 

This is an appeal against the judgment of Ogidi Judicial Division of the Anambra State High Court dismissing the consolidated actions by the appellant who as the plaintiff sued the respondent as the defendant for libel in two separate actions claiming in each action the sum of N5,000:00 as special and general damages and also praying for an order of injunction restraining the respondent from further publication of the defamatory words.

As the causes of action arose from the controversy over the disposition of the property in dispute according as whether it is personal to the appellant or it belongs to the parties’ family, it will ease an appreciation of the issues raised by the appeal to note the root of title to the land in dispute and give a bird’s eye view of the lineage of the family and a resume of the immediate facts that led to the institution of both actions.

It is common ground that No.1, Allen Lane, Onitsha, from the commentary on the sale of which the libelous statements were made was acquired at some remote past from the Mgbelekeke family of Onitsha by the late Peter Iloabachie, the father of the respondent and the paternal grandfather of the appellant, who built a mud-house on the land which was later replaced by a one storey building. The late Peter Iloabachie was survived by three sons and three daughters, namely, in order of seniority. A. C. Iloabachie, James Iloabachie, the respondent, Mrs. Beatrice Obianwuna, the eldest child. Mrs. Rose Okoye and Madam Veronica Iloabachie. Upon the death of Peter Iloabachie, he was succeeded as the head of the family by his eldest son, A.C. Iloabachie, in whom the property of Peter Iloabachie including No.1, Allen Lane, were vested. A.C. Iloabachie died on 29/10/85 survived by the two brothers and the three sisters, a widow and the appellant as the only child, though when the dispute between the appellant and the respondent arose, about September, 1994, the respondent was the only surviving son of Peter Iloabachie upon whom fell the mantle of the headship of the family of Peter Iloabachie.

In addition to the children prominent in the male line of the direct descendants of Peter Iloabachie, are the appellant and one Comrade Emeka Iloabachie who are the sons of A.C. Iloabachie and James Ilobachie, respectively. Featuring in the dispute is also Mrs. Beatrice Obianwuna, the eldest child of Peter Iloabachie, and her son Richard Obianwuna, who were living at No.1, Allen Lane, Onitsha. Both Peter Iloabachie and A.C. Iloabachie, the father and son who administered the property in dispute in succession, died intestate.

The Immediate cause of the dispute was the letter dated 3/9/94, Exhibit ‘S’ written by the appellant to the respondent. In the letter the appellant informed the respondent that he had sold, shortly before he wrote, the property of his father, No.1, Allen Lane, Onitsha, to one Mr. Edward Obi of Oba, a pharmacist who was living in the USA for #1,200,000. He narrated his difficulty in getting an attractive offer for the property owing to the fact that the property had no time document; the difficulty which he intimated that he overcame by entering into an agreement with the original vendor of the property, the Mgbelekeke family of Onitsha who sold the land to his grandfather, Peter Iloabachie, and who at a charge of #200,000 provided him with a document of title that enabled him to sell off the property. He gave his outlay on the sale arrangement as payment of #200,000 to the Mgbelekeke family and #100,000 as commission to the land agents and that he paid the balance of N900,000 out of the purchase price into ‘an account in the Union Bank.’

According to the respondent, he wrote back to the appellant informing him that the house he purportedly sold is the property of Peter Iloabachie family and not the property of his late father and, therefore advised the appellant to rescind the sale and restore the property to the family of Peter Iloabachie. Following the appellant’s failure to rescind the sale, the respondent, on 26/9/94s wrote a letter, Exhibit ‘C’, to the Head of Mgbelekeke family of Onitsha protesting the sale of the property by the appellant and requesting that family to cancel the agreement which the appellant said he made with them that enabled him to convey the property to the purchaser. On 3/10/94 the respondent also wrote another letter, Exhibit ‘D’, to the Director-General. ‘Ministry of Land’ (sic), Awka, praying that the Governor should not give his consent to the appellant to assign or mortgage or to grant Certificate of Occupancy over the property in question and that if consent had already been given in error it should be revoked. The writer’s reason for so praying is because the appellant “without the family consent, fraudulently, ‘sold’ it to one Mr. Obi of Oba about two months ago, with forged documentation.”

As it will be shown at the appropriate juncture wherever it may be necessary to highlight the import or drift of a particular expression the respondent in the two letters used variously the words ‘forgery’, ‘fraudulent’, ‘dishonest’, ‘illegally’, ‘unprofessional’ and ‘breach of trust’ to describe the appellant’s act and conduct in selling the house. Thus the appellant’s action for libel against the respondent stemmed from the use of those expressions which he maintained are heavily laden with criminal imputations against him.

Reacting to the two letters, the appellants filed two separate actions against the respondent in libel with two separate pleadings, i.e. statements of claim. Statements of defence and replies to the statements of defence. The suits were later consolidated and tried. Suit No. 0/361/95, later renumbered as HID/132/97, was in respect of the letter of 3/10/94, Exhibit ‘D’, written to the Director-General, ‘Ministry of Lands’ (sic), Awka, while Suit No. 0/362/95, later renumbered as HID/482/97, was in respect of the first letter dated 26/9/94, Exhibit ‘C’, written to the Head of Mgbelekeke Family of Onitsha: both suits were filed on 13/6/95. Except in matter of details the pleadings in both suits are similar. In both suits the plaintiff/appellant set out his claims against the defendant/respondent giving as appropriate the variants of the meaning of the defamatory words which were reproduced in paragraphs 21 and 22, respectively, of the statements of claim. The particulars of the appellant’s good character, integrity and general reputation as also the particulars of malice and publication of the defamation were set out.

The defendant/respondent denied the claims with necessary facts pleaded in the amended statements of defence in which he set up the defence of qualified privilege. The appellant riled a reply to each or the statements of defence in which he traversed a number of issues raised in the statement of defence but he did not file a reply alleging express malice and furnishing particulars of the facts from which ‘express malice’ can be inferred as a counteraction to the success of the defence of qualified privilege. But one peculiar feature of the respondent’s pleadings that gave rise to a serious misapprehension was the application for further amendment of the statements of defence filed on 28/11/97 but were withdrawn on 5/12/98 and struck out. Because of an oversight the shelved amendment incorporating the defence of justification was treated as part of the respondent’s case as if the amendment had been granted. A mistake that was reflected in the judgment in which the defence of justification was resolved unsolicited in favour of the respondent.

In any case, at the end of the trial the plaintiff/appellant’s case was dismissed. The learned trial Judge found that the two letters, Exhibits ‘C’ & ‘D’ were defamatory in their natural and ordinary meaning and that they were published of the appellant but the Judge held that the respondent had established the defences of justification and qualified privilege which excused the acts of the respondent and a complete answer to the appellant’s actions.

The appellant is challenging that decision and filed with the Notice of Appeal ten grounds of appeal from which he formulated in his Brief of Argument eleven issues, one issue from each of the first nine grounds and two issues from ground ten. The Respondent filed a Respondent’s Notice under sub-rule 14(2) of Order 3 of the Court of Appeal Rules 1981. Praying this Court to affirm the decision of the court below on grounds other than those relied upon by that court and formulated three issues. The eleven issues formulated by the appellant read:

“1. Whether the learned trial Judge was right in considering the defence of justification whereas the defendant neither pleaded the said defence nor gave particulars thereof.

2. Whether the learned trial Judge was right in holding that proper foundation was not laid for the tendering of Exhibit ‘C’ and ‘D’ whereas the said Exhibits ‘E’ and ‘D’ were certified by the Assistant Chief Registrar of the Onitsha Chief Magistrate’s Court, and the defence never raised any objection against the tendering of the said Exhibits.
3. Whether the words which the plaintiff complained of in Exhibits ‘C’ & ‘D’ as well as the publication to Comrade Emeka Iloabachie enjoyed qualified privilege from the circumstances of this case.
4. Whether the words which the plaintiff complained of in Exhibits ‘C’ & ‘D’ were mere epithets and not made maliciously.
5. Whether the learned trial Judge was right in holding that the inventory form (Exhibit ‘L’) used by the Administrator General/Public Trustee of Anambra State to manage No.1 Allen Lane, Onitsha was falsely sworn to by the plaintiff.
6. Whether from the circumstances of this case, the defence of estoppel could avail the defendant.
7. Whether the learned trial Judge was right in deciding the issue of title to No.1. Allen Lane, Onitsha in a libel case.
8. Whether the case of Exhibits ‘C’ and ‘D’ by Comrade Emeka Iloabachie in Suit No. MO/942/94: Edward N. Obi v. Richard Obiamwuna was privileged as per the Torts Law Cap. 135 Vol. 3 Laws of Anambra State of Nigeria 1986.
9. Whether the defendant joined issues and/or rebutted the evidence of the plaintiff with regard to evidence on special and general damages aspect of the case.
10. Whether the learned trial Judge’s holdings on the character and reputation of the plaintiff were supportable having regard to Law of Evidence relating to libel and slander cases.
11. Whether the Court’s judgment is against the weight of evidence led in the case.”

Those issues require a close scrutiny before a review of the arguments. To begin with, as I noted earlier, the appellant formulated eleven issues from ten grounds of appeal. That is improper as it is wrong to formulate more issues than the grounds of appeal filed. See Oyekan v. Akinrinwa (1996) 7 SCNJ 165, 172; See: also (1996) NWLR (Pt.459) 128; and for some of the implications of which See Onyioha v. Ayashe (1996) 2 NWLR (Pt. 432) 567; (1996) 2 NWLR (Pt.432) 567; and Paye v. Gaji (1996) 5 NWLR (Pt. 450) 589; (1996) 5 NWLR (Pt.450) 589. Therefore, I will disregard Issue Eleven which is a caricature of an omnibus ground of appeal provided as an issue.

Issues 1 & 9 on the defence of justification and non rebuttal by the respondent of the plaintiff’s evidence of special and general damages will be examined separately starting with issue 1 and issue 9 bringing up the rear of the entire issues to be examined. Issues 3 and 8 are on the defence of qualified privilege corresponding to issues 2 and 3 in the Respondent’s Brief of Argument and to all of which is kindred the use of derogatory expressions framed as issue 4 in the Appellant’s Brief of Argument on ‘express malice’ the five issues will be examined together. I agree with learned counsel for the respondent that issues 5 and 10 touching upon the conduct, character and reputation of the appellant and to both of which is germane the question of estoppel raised by the appellant as Issue 6 should he examined together. The three are parallel to Issue 1 in the Respondent’s Brief of Argument which would be examined along with them. In order not to appear to be unduly technical I will not bother about Issue 4 and partly Issue 3 on ‘express malice’ based on grounds of appeal 4 and 3 which as I would note at the end of argument of Issue 4 are defective. However, I will, as a preliminary matter, begin with verification of how Issues 2 and 7 came to be characterized as legal issues with a view to determining their competence as a medium for probing the correctness of the judgment under review.

Issue Two in the Appellant’s Brief of Argument is canvassing the learned trial Judge’s observation that the plaintiff/appellant did not produce the original copies of Exhibits ‘C’ & ‘D’ containing the defamatory materials or lay the proper foundation for introducing secondary evidence of the documents, a view which learned counsel for the appellant contended to be wrong and therefore, urged this court to allow the appeal on that score. The pivot of the argument of the learned counsel is the principle in Dina v. New Nigerian Newspapers Ltd. (1986) 2 NWLR (Pt. 22) 353, that where a documentary evidence is admissible on the fulfillment of certain conditions admission of such document without objection by the adversary is a waiver of the condition precedent and cannot be reopened later in that proceeding or on appeal.

Admittedly, there was a bit of rigmarole by the learned trial Judge who traversed almost the full length of the rule of admissibility of documentary evidence in sections 91, 109, 111, 112 & 113 of the Evidence Act for the purpose of demonstrating that the presentation of those documents by learned counsel for the plaintiff/appellant was not as stipulated by the rules. However, at the end of the disquisition the learned trial Judge, nonetheless, came tacitly to the conclusion that the two documents have, following the respondent’s admission to be the maker of the documents, been properly received in evidence and on the basis of that finding he held that the two documents are defamatory of the appellant.

Since the end result of the admission of the two documents is the pronouncement that they are defamatory which have been achieved. However circuitously, I cannot see the purpose of what appellate end Issue Two is meant to achieve except for the narrow academic test of who between the learned trial Judge and learned counsel for the appellant is right in the pedagogical showmanship. That is a petty contest that does not advance the merit of this appeal an inch further. Because of the non-deliberative impact there Issue Two must rest as one without positive contribution to the probing of the merit of this appeal; a superfluous outfit.

The basis of Issue 7 is that in an action for libel which arose from a dispute over a landed property it is not necessary to decide the title to the property in dispute as it is not the matter in issue before the trial court. The appellant’s contention on this score is that the learned trial Judge was blowing hot and cold at the same time. While in one breath he insinuated that the appellant was using the actions for libel to establish his ownership of the property in dispute he shortly afterwards made a complete roundabout turn and in another breath invoked Ogidi customary law to decide the question of title to the same property in favour of the respondent. By so doing, learned counsel for the appellant argued, the learned trial Judge had anticipated the dispute in another suit before another court in which the title to the land in dispute is in issue and had thus given judgment in that other action against the appellant as well. See page 29 of the Appellant’s Brief of Argument.

With respect to learned counsel to the appellant his reasoning is far-fetched and the logic tenuous as regards the decision on title to the land in dispute. On both the evidence and the decision on the point the learned counsel appears to lay it with a trowel as what the learned trial Judge was trying to demonstrate is the conflicting claims by the parties that gave rise to the defamatory words and the evidence on which each party relied. Whatever misunderstanding might have been engendered by the learned trial Judge’s reference to Ogidi customary law of inheritance upon which the respondent founded his claim the learned Judge’s comments, at page 367 of the records, before he made reference to Ogidi Customary law have clearly obviated any misapprehension of the issue which he canvassed and upon which he reached a decision. The learned trial Judge said, inter alia, as follows:

“It was the plaintiff who asserted that Peter Iloabachie made an inter vivos gift, or donation, of No.1. Allen Lane, Onitsha, to Chief Alfred C. Iloabachie now deceased. The plaintiff on oath testified that he was not born when the said gift was made. The defendant on the other hand said on oath as he had pleaded that his late father Peter Iloabachie never gave the said property to late Chief Alfred C. Iloabachie. It is a question of judicial balancing of the two stories. I believe that Suit No. 0/204/95 will be of great help in the determination of the true owner of the said property.” (italics mine)

What is Suit No. 0/204/95 mentioned above about? In paragraph 27(d) of the Statement of Claim in Consolidated Suit No. HID/132/97 and paragraph 26(d) of the Statement of Claim in Consolidated Suit No. HID/482/97, both on appeal, the plaintiff/appellant described Suit No. 0/204/95 as the action instituted against him by one Emeka Iloabachie for selling the property in dispute. He further averred that ‘the said suit is currently pending in court. At page 28 of the Appellant’s Brief of Argument the suit was similarly described.

If, on the Appellant(s) own showing, Suit No. 0/204/95 is to determine the title to the land in dispute and the suit is still pending before a court of coordinate jurisdiction with the one which decision is on appeal and if the learned trial Judge of the court below expressed the belief that it is that particular action that would settle the question of who is the owner of the property in dispute it is beyond any peradventure that the learned trial Judge made no pretence of determining title to the land in dispute. Therefore, it is hypocritical and downright chicanery on the part of learned counsel to the appellant to impute, on the face of the evidence to the contrary, that the judgment on appeal has decided the title to the land in dispute in favour or the respondent. To make it a ground of appeal on which to formulate an issue in an appeal challenging that decision is not only mischievous but also perverse.

The implications of the wrong interpretation of the decision on appeal follow ineluctably. Firstly, what the learned trial Judge said about the customary law of Ogidi people are, in the con of an action for libel, obiter dicta and not the ratio decidendi. It has been held that “an appeal is usually against a ratio and not against an obiter except in cases where the obiter is so closely linked with the ratio as to be deemed to have radically influenced the latter. But even there, the appeal is against the ratio.” See Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387, 431. For other instances of the application of the principle. see Ogunbiyi v. Ishola (1996) 5 SCNJ 143, 153: (1996) 6 NWLR (Pt.452) 12 and Coker v. United Bank for African Plc, (1997) 2 SCNJ 130, 145: (1997) 2 NWLR (Pt.490) 641.

Secondly, a clear misrepresentation of the decision of the lower court on appeal vitiates the basis of the complaint. Thus, where the factual basis for attacking a judgment is false or non-existent the ground of appeal based on the fictitious or misleading premise is incompetent: See also (1998) 6 NWLR (552) 1; see Alakija v. Abdullai (1998) 5 SCNJ 1, 18, Consequently, since the 7th ground of appeal did not arise from the determination of the court below that ground of appeal is incompetent and so is issue 7 formulated from the incompetent ground of appeal. See, variously, Balogun v. Adejobi (1995) 6 SCNJ 44, 52: Nkodo v. Obiano (1997) 5 SCNJ 33, 43; (1997) 5 NWLR (Pt.503) 31: and Rotimi v. Faforiji (1999) 6 NWLR (Pt. 606) 305, 318.

Beginning with Issue One in the Appellant’s Brief of Argument the appellant’s contention therein then contrary to the learned trial Judge’s finding the respondent did not raise the defence of justification was conceded by learned counsel for the respondent. As I noted earlier, the error was occasioned by the mistake on the part of the learned trial Judge that the proposed amendments to the statements of defence in which the defence of justification to both suits was raised had been granted when in fact the proposed amendments were withdrawn by the respondent and struck out on 5/2/98. Thus what remains to be considered is the legal effect on the decision of the court below after discounting the defence of justification which was erroneously held in favour of the respondent.

In his reply to the Respondent’s Brief of Argument learned counsel for the appellant contended that as the respondent conceded that he never pleaded the defence of justification to sustain the contents of Exhibits ‘C’ and “D’ any evidence led by the respondent which purported to justify the offensive words in Exhibits “C” and ‘”O” should he disregarded as evidence of facts which the respondent did not plead in support of the defence of justification and upon which the trial court ought nor to have acted. The range of the objectionable evidence is vaguely drawn by the learned counsel to include any evidence touching upon ‘the conduct, character or reputation of the appellant’ among which is the evidence of the appellant’s own witness that is adverse to him. Learned counsel for the respondent did not elaborate on the consequence of the respondent being given credit for the defence which he did not raise beyond the concession that the defence of justification was on the pleadings not open to the respondent. But implicit in the submission of learned counsel for the respondent is the fact that the evidence led are applicable to the defence of qualified privilege which is quite as much a vindication of the defamatory words published by the respondent.

On my part, lack of specificity by learned counsel for the appellant about the corpus of the evidence that goes to sustain the defence of justification which must be excluded from consideration of the defence of qualified privilege which is open to the respondent on the facts of this case and properly pleaded by him made the argument of learned counsel for the appellant to be a bit troublesome. To sustain the argument of learned counsel for the appellant is to support the proposition that from the point of view of proof the defences of ‘justification’ and ‘qualified privilege’ are mutually exclusive in the sense that where evidence is led which cannot support the former because it was not pleaded the same set of evidence cannot be ‘appropriated’ or ‘utilized’ in examining the latter which was pleaded and canvassed. In the trial of an action evidence cannot be separated into such watertight compartments as I know of no rule of evidence that one piece of evidence cannot be used to prove two or more related heads of claim.

Therefore, in examining the defence or qualified privilege which was also resolved in favour of the respondent evidence which is exclusively concerned with the defence of justification would be disregarded evidence which is capable of supporting both forms of defence cannot he disregarded, Consequently, the appellant’s submission that the resolution of Issue One in favour of the appellant is a sufficient ground to allow the appeal is untenable. The law is that it is not every slip committed by a Judge in his judgment that will result in the appeal being allowed: for such a mistake to be final it must have occasioned a miscarriage of justice. See Dadi v. Garba, (1995) 9 SCNJ 232, 239: (1995) 8 NWLR (Pt.411) 12: Ogoyi v. Umagba (1995) 10 SCNJ 55, 63 -64; also (1995) 9 NWLR (Pt.419) 283: Gbafe v. Gbafe (1996) 6 SCNJ 167: 177: (1996) 6 NWLR (Pt.455) 417: and Akpan v. Otong (1996) 12 SCNJ 213, 227: (1996) 6 NWLR (Pt.476) 108. Accordingly, until other factors are established pointing to a miscarriage of justice this particular error cannot conclude our judgment on this appeal.

On the defence of qualified privilege, learned counsel for the respondent conceded another error on the part of the learned trial Judge who upheld the defence of qualified privilege by the respondent on the ground that the publication of the defamatory letters, Exhibits ‘C’ and ‘D’, to Comrade Emeka Iloabachie was not proved by the plaintiff/appellant. The learned counsel submitted that the conclusion by the learned trial Judge that the defence of qualified privilege was made out by the respondent was right hut the conclusion could have becn based not on the ground that there was no publication but on the ground that the publication was made to Comrade Emeka Iloabachie as a person who ought to have received the offending words because he has a legitimate common interest with the respondent over the property in dispute, i.e. No. 1, Allen Lane, Onitsha. The learned counsel has sought to rectify the position by filing on 7/12/98 a Respondent’s Notice under sub-rule 14(2) of order 3 of the Court of Appeal Rules. 1981 praying that:

“The decision of the court below that qualified privilege avails the said defendant/respondent despite the contention of the plaintiff/appellant that publication of the offending statements were made to Comrade Emeka Iloabachie. He affirmed on the ground that the statements and/or alleged publication of the offending documents were made by the defendant/respondent to Comrade Emeka Iloabachie in a subject matter (i.e. No. 1 Allen Lane, Onitsha) in which both the defendant/respondent and the said Comrade Emeka Iloabachie have legitimate common interest.” The respondent’s prayer is to retain the judgment but calling for variation of the findings of fact by the learned trial Judge in respect of matters which arose and were canvassed at the trial and which are subject of complaints in the 3rd and 8th grounds of appeal from which were formulated issues 3 and 8 in the Appellant’s Brief of Argument and issues 2 and 3 in the Respondent’s Brief of Argument on defence of qualified privilege. I am satisfied that what the respondent seeks to correct can be accommodated within the purview of sub-rule 14(2) of the Rules of this court on Respondent’s Notice as expounded by the Supreme Court in Adekeye v. Akin-Olugbade (1987) 6 SCNJ 127, 130; (1987) 3 NWLR (Pt.60) 214; Eze v. Obiefuna (1995) 7 SCNJ 75, 81; (1995) 6 NWLR (Pt.404) 639; and Nabisco Inc. v. Allied Biscuits Company Ltd, (1996) 7 SCNJ 235, 243; (1998) 10 NWLR (Pt.568) 16. Accordingly, the Respondent’s Notice filed by the respondent on 7/12/98 will be taken into account in the deliberations on the defence of qualified privilege in this appeal.

Against this background, issues 3 and 8 in which the appellant attacked the defence of qualified privilege raised by the respondent must be examined as well as issue 4 therein on ‘express malice’ along with issues 2 and 3 in the Respondent’s Brief of Argument. In issue 3 the appellant took up the offending expressions ‘fraudulent’, ‘illegal’, ‘forgery’, ‘dishonest’, ‘unprofessional’ and ‘breach of trust’ used variously in Exhibits ‘C’ and ‘D’ as the stings of the defamation which the respondent published to the addressees of the letters and Comrade Emeka Iloabachie to whom the respondent gave copies of the letters. He also took up the question of ‘express malice’ in the concluding limb of issue 3.

In his argument of the first Limb of the issue the learned counsel contended firstly, that a dispassionate report could be lodged with the addressees of the letters without making use or criminally insinuating and character damaging words employed by the respondent. Secondly, that the addressees of those letters and Comrade Emeka Iloabachie not bring persons who could redress the respondent’s grievances against the appellant publishing the letter to them cannot attract any privilege. Thirdly, that the respondent did not send copies or the letters to Chief N.C. Iloabachie, the overall head of the Iloabachie family. Fourthly, that the respondent did not give facts and particulars of the qualified privilege regarding the publication of the letters to Comrade Emeka Iloabachie as required by law. Fifthly, that the respondent’s denial in his pleadings of ever publishing the letters to Comrade Emeka Iloabachie robbed his subsequent evidence that he published the defamatory letters of any force as evidence led on facts not pleaded and can, therefore, not attract the defence of qualified privilege. Sixthly, that section 178 of the Torts Law of Anambra State cannot avail the respondent or the defence of qualified privilege for failure ‘to establish his interest over the property’ in dispute.

In reply, learned counsel for the respondent drew attention to the respondent’s testimony of his duty to the family of Peter Iloabachie as an excuse for writing and publishing the defamatory letters and to the examination or the defence of qualified privilege by the learned trial Judge. In particular, he highlighted six points showing the history of the property in dispute and the connection of the parties and Comrade Emeka Iloabachie with the property through their common ancestry. The findings of the learned trial Judge which are hound up with the parties pleadings and the respondent’s evidence on the interest of the addressees of the defamatory letters and Comrade Emeka Iloabachie in the knowledge of the information being disseminated by the respondent in those letters were highlighted by learned counsel for the respondent in the Respondent’s Brief of Argument.

Central to the issue of the defence of qualified privilege by the respondent is the appellant’s letter of 3/9/94 to the respondent, Exhibit ‘S’. It is the catalyst against which the respondent’s reaction must be examined in order to ascertain whether there was a tenable reason for the steps taken by the respondent or whether writing the letters, Exhibit ‘C and ‘D’, cannot be justified and therefore, defeats the defence of qualified privilege.

From the evidence before the trial court the respondent as the current head of Peter Iloabachie Family who had nursed the belief that No. 1 Allen Lane, Onitsha, which was acquired by his late father. Peter Iloabachie, was the property of that family was startled by the appellant’s letter, Exhibit ‘S’, informing him that he had sold single-handed No. 1, Allen Lane, Onitsha, which he claimed belonged to his late father A.C. Iloabachie, the elder brother to the respondent. He further disclosed in the letter that as the property was not covered by any document of title he approached the Mgbelekeke Family of Onitsha, the original owner of the land from whom Peter Iloabachie acquired it, who provided him with document of title with which he conveyed the property to the purchaser. The respondent informed the appellant that the property was that of Peter Iloabachie Family and not personal property of his late father A. C. Iloabachie, and advised him to rescind the sale and restore the property back to the family. The appellant did not budge. When the appellant remained adamant and ignored the respondent’s advice to rescind the sale what was the option left to the respondent? Could he have folded his arms and regarded the incident as a fait accompli with his duty as the head of the family or protest the appellant’s act to those who had a say in the matter? The learned trial Judge endorsed the initiative taken by the respondent and I cannot regard that decision as unreasonable.

Considering Exhibit ‘D’, the letter to the State Lands Department, the learned trial Judge acknowledged that department as the authority over land mattes within the state and recalled its traditional functions which include entertaining from an aggrieved person protest or application for redress over land matters. He, therefore, held, at page 365 to 366 of the record, that the State Land Department had a duty to receive the complaint in Exhibit ‘D’ which, correspondingly, the respondent had the right to present to it. The concurrence of the right and duty on the part of the writer and addressees of Exhibit ‘D’ is the basis of their common interest and is sufficient to sustain the defence of qualified privilege by the respondent.

On the letter to the Head of Mgbelekeke Family of Onitsha, Exhibit ‘C’, the learned trial Judge exonerated the act of the respondent from liability for libel holding, at page 368 of the record, inter alia as follows:

“By Exhibit S, the plaintiff said he paid N200,000 to Mgbelekeke family following an agreement reached in order to obtain a document of title from that family. I hold therefore, that in that situation, the Mgbelekeke family had the legal duty, the social and moral duty to receive Exhibit C to he informed of what the plaintiff did rightly or wrongly, on No. 1, Allen Lane, Onitsha, against the defendant, the son of the donee, or purchaser of the said property. I hold therefore, without much ado, that the defendant is entitled to the defence of qualified privilege, and not liable for the publication of Exhibit C to the Mgbelekeke family.”

As regards the publication of the libel to comrade Emeka Iloabachie, the privilege which applies to the addresses of the two letters, Exhibit ‘C’ and ‘D’, also applies to him. A fortiori, as he, in the same way as the appellant, is a principal member of Peter Iloabachie Family with a legitimate common interest in the property in dispute with both the appellant and the respondent and to whom the latter as the current head of that family had a moral duty to inform of what was happening to the property in dispute. In the family circle of Peter Iloabachie, Comrade Emeka Iloabachie falls within the amplitude of the relationship of duty described in Pullman v. Hill Ltd. (1891) 1 QB 524, 528, and Adam v. Ward (1917) AC 309, 334, the range of the beneficiaries or the duty which is within the court’s discretion to expand.

The appellant complained about the use of vitriols and vituperations in describing his acts and conducts in Exhibits ‘C’ and ‘D’. If in his evidence all oaths the appellant contradicted wholesale the material information he gave to the respondent in his letter. Exhibit ‘S’. as the learned trial Judge painstakingly dissected at pages 352 to 355 of the record that is a vindication of the lurid description of the appellant’s acts and conduct painted by the two letters confirming the hunch of the respondent who on the facts available to him as the head of the family and consequently, the repository of the family heirloom, came to the conclusion that his nephew was up to something shady. The flourish is not unsolicited as it is earned, with due deserts, from the appellant’s slipperiness betrayed by contrariety between his extra-judicial statements and his evidence on oath, with regard to failure of the respondent to send copies of Exhibits ‘C’ and ‘ D’ to ‘the patriarch’ and octogenarian of Iloabachie extended wing of Peter Iloabachie family, Chief N.C. Iloabachie, it is the absolute privilege of the respondent to select whoever he chose to involve in his protest over the matter and if he decided to confine the matter to the immediate Peter Iloabachie’s family that cannot justify raising eye-brows in a subtle attempt at discrediting giving copies of the letters to comrade Emeka Iloabachie instead.

On the question of not furnishing facts and particulars of the qualified privilege to enter the publication to Comrade Emeka Iloabachie and the wider issue or pleadings on publication of the defamatory letters generally, I am satisfied that paragraphs 7, 8 and 9 or the defendant/respondent’s statements of defence contain all the material facts that are required to be pleaded within the clarification of what is implied by ‘pleading material facts’ in Esso West Africa Inc. v. Oladiti (1968) NMLR 453, 454-455; and Okugbue v. Romaine (1982) 13 NSCC 130, 137-138; also (1982) 5 SC 133: and having regard to the provision of rule 38 of Order 9 of the Anambra State High Court Civil Procedure Rules, 1988, which reads:

“The defence of a defendant shall not debar him at the hearing from disproving any allegation of the plaintiff not admitted by the defence, or from giving evidence in support or a defence not expressly set up by the defence, except where the defence is such as, in the opinion or tile court, to have been expressly set up by the defence, or is inconsistent with the statements thereof, or is, in the opinion of the court, likely to take the plaintiff by surprise and to raise new issues not fairly arising out of the pleadings, as they stand, and such as the plaintiff ought not to be then called upon to try.”

The contention by learned counsel for the appellant that the respondent is not entitled to the defence of qualified privilege because he failed to establish his interest over the property in dispute as required by section 178 of the Torts Law of Anambra State, 1986, is wringing a false meaning out of the language of that section. The section speaks of interest in the subject matter of the libel which is a far cry from establishing a title to the subject matter. Such interest as it is necessary to establish by the respondent in the con of that section does not mean more than what he has shown, i.e. that No.1, Allen Lane, Onitsha, was acquired by his father with no information to his knowledge that in the life time of his father he had alienated his interest in the property.

That brings me to Issue 8 in the Appellant’s Brief of Argument on the publication of the defamatory letters, Exhibits ‘D’ and ‘D’, by Comrade Emeka Iloabachie in a further affidavit which he filed in Suit No. MO/924/94 between ‘Edward N. Obi’ and ‘Richard Obianwu’ to support his application that he be joined as a defendant to contest the action on behalf of Peter Iloabachie Family.

On the point of clarification, the argument of learned counsel for the appellant about the error of the learned trial Judge that there was no publication of Exhibits ‘C’ and ‘D’ to Comrade Emeka Iloabachie is no longer a live issue as the respondent who conceded the point has also filed a Respondent’s Notice praying this court to affirm the judgment of the court below on the ground that the respondent published the defamation to Comrade Emeka Iloabachie to whom he owed a duty because of their common interest in the property in dispute. The respondent is now arguing from the standpoint that there was publication of the defamatory letters to Comrade Emeka Iloabachie.

Subject to that correction the argument of learned counsel for the appellant is that by virtue of section 170 of the Torts Law of Anambra State the defence of qualified privilege does not avail the respondent who authorized Comrade Emeka Iloabachie to publish the libel in proceedings in which neither the respondent nor Comrade Iloabachie is a party. The occasion for publishing the libel, the learned counsel expatiated, was the application by Comrade Iloabachie to be joined as a party which was refused by the learned Chief Magistrate, It is the reasoning of learned counsel for the appellant that as Comrade Emeka Iloabachie wanted to be joined in the action on behalf of Peter Iloabachie Family he must have done so with the authority of the respondent as the head of Peter Iloabachie Family judging from the fact that the respondent admitted before the trial court that it was he who authorized Comrade Iloabachie, to institute the action in Suit No. 0/204/95 against the appellant and the purchaser of the disputed property who is also the plaintiff. In Suit No. MO/942/94 for the recovery of that property.

The issue raised here has opened up new vistas to the defence of qualified privilege the variant of which would have been greatly assisted by the decision of this court in Daily Times of Nigeria Ltd. v. Chief F. R. A. Williams (1986) 4 NWLR (Pt. 36) 526, in which there was a profound debate about the circumstances in which documents filed and used in court proceedings would attract the defence of qualified privilege in a libel action, but the wobbly state of the facts of this particular case cannot assimilate an elaborate discussion of an issue that is seriously confounded on law and can be better contained within the limited compass of its own facts.

It is not the appellant’s case that the respondent was the person who published the libel through the court’s proceedings. The respondent’s liability is vicarious and based on the presumption that because the respondent admitted in cross-examination that he authorized Comrade Emeka Iloabachie to sue in Suit No. 0/204/95 on behalf of Peter Iloabachie Family to recover the family property from the purchaser of the land in dispute he must be presumed to have authorized him to seek leave to be joined on behalf of the family in Suit No. MO/942/94 before the Chief Magistrate in pursuit of which Comrade Iloabachie deposed to the further Affidavit through which he disseminated the defamatory letters.

That stand is at variance with the parties’ pleadings. In paragraphs 25(b) and 24(b) of his statements of claim in Suit Nos. HID/132/97 and HID/482/97, respectively, the plaintiff/appellant pleaded the dissemination of the libel through the further affidavit to which the defamatory letters were attached which was deposed to ‘on the instruction’ of the respondent In paragraph 9 of the statement of defence corresponding to each claim the respondent pleaded the defence of qualified privilege to any publication mentioned by the appellant.

If the respondent joined issue with the appellant all the averments in the statements of claim that Comrade Iloabachie was his agent and representative it is elementary that the appellant must prove those averments. They cannot be left to conjectures and surmises as the appellant did when on page 31 of his Brief of Argument he argued with gusto that

“… whatever Comrade Emeka Iloabachie did in Suit No. MO/942/94 was equally the act of Benedict N. Iloabachie (the defendant/Respondent) because as per The title OF the further affidavit attached to Exhibit ‘D’, Comrade Emeka Iloabachie was seeking to be joined ‘for himself and as representing members of late Peter Iloabachie’s family.’ The present defendant/Respondent is the current head of the said family as he is used to giving Comrade Emeka Iloabachie such authorisation as could be seen at page 153 lines 1040-050 of the record.

The possibility might be strong that if the respondent could authorize Comrade Emeka Iloabachie to sue in the action before the High Court for the recovery of the family property he could also hale authorized him to join the defendant, a member or Peter Iloabachie family, to fight his ejection from the property in dispute by the new purchaser before the Chief Magistrate. But that remains a likelihood that lacks the certainty required to establish a claim or allegation in a judicial inquiry. The question of whether Comrade Emeka Iloabachie acted on the instruction of the respondent when he filed the further affidavit, portrayed by the appellant as an instrument used by Comrade Emeka Iloabachie to disseminate the libel is too important to be left to conjecture for upon it depends the equity of the respondent.

The respondent with utmost candour admitted that he published the two defamatory letters to Comrade Emeka Iloabachie from a sense of duty that is the limit of what he admitted. If he must be taxed with publishing the libel through Comrade Emeka Iloabachie there must be proof of the instructions alleged to have been given to Comrade Iloabachie or clear evidence from which it can be inferred that he acted as the respondent’s agent or representative.

I have examined the whole of the 19 paragraphs of the further affidavit through sub-paragraphs 6(iv) and (v) of which the 2 offending letters Exhibits ‘C’ and ‘D’ are annexed thereto. There is no mention that the deponent was acting on instruction from the respondent or any other person. The image portrayed by the deposition of the deponent is one of an independently minded person with an acute sense of family commitment who will not play second fiddle to another principal member or the family or be a stooge to the respondent where the family’s interest is involved.

Learned counsel for the appellant observed, at page 31 of the Brief of Argument, with a tinge of excitement and pleasure that Comrade Emeka Iloabachie’s application for joinder as a party to Suit No. MO/942/94 ‘was on 1st day of August refused by the Chief Magistrate…Onitsha’ with N1,000 cost awarded against him. After that facetious felicitation the serious question of law that arises from the rejection of the application is that if in its deliberations on whether Comrade Iloabachie should be joined as party to the action the court acted on the further affidavit which is steeped in libel it may be wondered whether the learned Chief Magistrate and his professional coterie of learned counsel before him who were awash with giggles were those to whom the libel was published. Can it be seriously argued that Comrade Iloabachie is not protected with ‘absolute privilege’ by section 170 of the Torts Law of Anambra State, 1986, which covers ‘communications… during the course and as part of a judicial proceeding in which he participates? Does application for joinder in a suit not amount to participation in ‘the proceeding’ even where participation in the suit as a party was rejected? In any case, is it still of any avail to canvass with pathos as the appellant averred in subparagraph 25(b) of his statement of claim in Suit No. HID/132/97 that:

“On the 23rd day of May, 1995 before Chief Magistrates Court 2 Onitsha and before the full glare of members of the public present in court (including Maxwell Egbuna and Chris Obi Udoka) Arthur Obi Okafor Esq. the defendant’s counsel made copious use of the said document and portrayed the plaintiff before all and sundry as a fraudulent lawyer.”

Ironically, the question does not have to be answered on behalf of Comrade Emeka Iloabachie who provided the opening for the dissemination of the libel but who not being a defendant in the court below cannot be made to answer any query on the matter. The respondent not having been shown to be the principal of Comrade Emeka Iloabachie or the latter the proxy of the respondent the responsibility for the ‘juridical burlesque’ engendered by the further affidavit is abated.

In sum, Issue 8 is idle and superfluous. The respondent having been held to be protect cd by the defence of qualified privilege for publishing the defamatory letters to Comrade Emeka Iloabachie the protection does not cease because the defamatory documents were later introduced into judicial proceedings where there is no evidence that Comrade Emeka Iloabacbie who deposed to and filed the affidavit acted on the authority of the respondent. Admittedly, the proceedings in question are a fall-out from the sale of the property in dispute which was the occasion for the defamatory letters as it is an action between the purchaser of that property and a tenant on the property who is a member of the family of the appellant and the respondent in this appeal but that coincidence with nothing more cannot render the respondent liable for republishing the libel by Comrade Emeka Iloabachie.

To establish liability on the ground that the respondent caused the publication in the judicial proceedings of 23/5/95 before the Chief Magistrate, Onitsha, the appellant must prove that the deponent, Comrade Emeka Iloabachie, was acting on the instruction of the respondent. That fact cannot be presumed nor can it be inferred from the fact that on a previous occasion the respondent gave Comrade Emeka Iloabachie instruction to institute action against another person on the properly in dispute: the law is that a person can be an agent for one particular purpose and not for another purpose: See Oyegun v. Igbinedion (1992) 3 NWLR (Pt. 226) 747, 761: and Ayua v. Adasu (1992) 3 NWLR (Pt. 231) 611, 612.Issue No.4 which the appellant combined with the concluding limb of Issue 3 deals with ‘express malice’ which is urged to be inferred from the crop of invectives with which the defamatory letters are laden as a countermove to neutralize the defence of qualified privilege, Learned counsel for the appellant took to task the learned trial Judge who expressed the view that the expressions ‘illegal’, ‘forging’, ‘with forged documentation’, ‘fraudulently’, ‘fraudulent moves’, ‘vincent’s illegal’, ‘fraudulent’ and ‘unprofessional action’, ‘dishonest’ and ‘forgeries’ used variously by the respondent in Exhibits ‘C’ and ‘D’ are epithets used by the respondent to demonstrate his opposition and reaction to the appellant’s acts in relation to the property in dispute. The learned counsel countered that those words were maliciously used by the respondent and were never intended as mere epithets. He canvassed the grammatical meaning of the word ‘epithet’ which he demonstrated to be the antithesis of what the word ‘censure’ or ‘reproof’ stands for and submitted that failure of the respondent to explain the sense in which he used the offensive words in those letters does not remove their injurious connotations which are replete with insinuations that the appellant was guilty of criminal acts and professional misconduct.

The learned counsel further contended that, assuming without conceding that the respondent had properly established the defence of qualified privilege “his malicious intent in authorising and publishing Exhibits ‘C’ and ‘D’ had defeated that defence” craving in aid section 191 of the Torts Law of Anambra State, 1986. He submitted that a person who publishes a libel cannot escape liability by showing that it was published without the intention to defame founding for support on Akintola v. Anyiam (1961) All NLR 508. Relying on Atoyebi v. Odudu (1990) 10 SCNJ 52; (1990) 1 NWLR (Pt.157) 384; the learned counsel further submitted that “where defamatory words are published without lawful excuse, the law conclusively presumes that the defendant is motivated by malice and in such a situation, the plaintiff is not required to give particulars of the facts on which he seeks to rely in support of the allegation that the words were published maliciously.”

‘Malice is still malice’, whether it is express or implied, he submitted emphatically, adding that “the Torts Law of Anambra Slate did not draw a distinction between them and it did not provide that only express malice could defeat the defence of qualified privilege.” He finally submitted that, the words complained of in Exhibits ‘C’ and ‘D’ went beyond the just requirements of the occasion, i.e., report of an alleged grievance, as to amount in themselves to sufficient evidence of malice buttressing that preposition with the decision of the English House of Lords in Turner v. M-g-m Pictures Ltd. (1950) 1 All ER 449, 470.

In his reply which skirted around the central point learned counsel for the respondent highlighted the evidence of the appellant on malice which he argued bore no relevance to the appellant’s submissions on pages 6 to 18 of his Brief of Argument. He disparaged the submission of learned counsel for the appellant that the Torts Law of Anambra State does not draw a distinction between implied and express malice which he submitted is contradicted by section 177 of that Law, Express malice, he contended, must be proved by evidence and cannot be established by drawing inferences from the words used in the defamatory statements as learned counsel for the appellant urged. He further argued that, a collection of offensive words to which the appellant raised objection cannot take the place of malice as they are no more than mere epithets as the learned trial Judge rightly described them. He contended that the learned trial Judge having found the defence or qualified privilege to be proved by the respondent it was the duty of the appellant to dislodge that privilege by proof of express malice. That onus, he argued, the appellant failed to discharge and his reliance on express malice must, therefore, fail. He urged me to reject the appellant’s reliance on express malice and to uphold the defence of qualified privilege as found by the learned trial Judge.

The drawback of the handling of this issue by learned counsel for the appellant is one of ploughing a lonely furrow unaided by the nitty-gritty of the field. Bogged down by the handicap the sum total of the argument in support of the Issue 4 is that substantial amount of invectives in the defamatory letters, Exhibits ‘C’ and D’, are, in law, a repository of evidence from which the court can infer express malice sufficient to defeat the defence of qualified privilege, That is monstrous, a misconception that led to the novel but inane proposition of the law by the learned counsel that the Torts Law of Anambra Stale does not draw a distinction between ‘express malice’ and ‘implied malice’. Section 177 of the Torts Law debunks that fallacy as fiddlesticks. It reads:

‘One who published defamatory matter of or concerning another person is not liable therefore if:

(a) it is published on an occasion of qualified privilege; and

(b) the privilege is not defeated by express or actual malice:’

But proof of ‘express or actual malice’ also known as ‘malice in fact’ in contradistinction to ‘implied malice’ is shrouded in technicalities that are bound up with the rule of pleadings. Sub-rule 1(8) of Order 9 of the Anambra State High Court Civil Procedure Rules, 1988, reads in part:

“The plaintiff may file a reply to the statement of defence, (and shall do so… in a suit for defamation if the statement of defence pleads matters as a result of which the plaintiff shall rely on actual malice)

…”(italics mine for emphasis).

The provision is more specifically stated in rule 21 of the same, Order 9, presumably for emphasis.

Where no reply is filed by the plaintiff to the statement of defence in which the defence of ‘fair comment’ or ‘qualified privilege’ is pleaded by the defendant express malice is not in issue on the pleadings and it is erroneous for a trial Judge to consider it. In Chief S.B. Bakare v. Alhaji Ado Ibrahim (1973) 6 SC 205, the decision of the trial court was reversed on appeal where the learned trial Judge dabbled into the plea of ‘express malice’ in an action for defamation in which the plea of fair comment was raised by the defendant but the plaintiff did not file a reply giving particulars of the facts from which express malice was to be inferred. The Supreme Court, per Ibekwe, JSC, expounded, at page 215, that:

“… in an action for defamation, where it is intended La allege express malice in answer to a plea of fair comment or qualified privilege, it is necessary to deliver a reply, giving particulars of the facts from which express malice is to be inferred. And since express malice defeats the plea of fair comment or qualified privilege, we think it is only fair, and indeed, quite in keeping with the principles of justice, that the defendant, whose defence is fair comment or qualified privilege, ought not to be exposed to any kind of surprise.”

The operation of the principle calls for some clarifications. In Atoyebi v. Odudu, supra, the Supreme Court revisited the principle in Bakare v. Ibrahim, supra, which was restated clarifying what appeared to be an over-generalization in the application of the principle. The position is that in an action for defamation failure of the plaintiff to file a reply to the defence of fair comment or qualified privilege raised by the defendant does not defeat the plaintiffs action where, as in the former case, there was clear evidence of an implied malice in which the defendant’s allegation of misconduct against the plaintiff was found to be groundless. In such a case where the defence of fair comment or qualified privilege cannot be sustained the plaintiff is at liberty not to file a reply to the defence in which case the question of ‘express malice’ is not in issue such that the plea is no longer open to the plaintiff if for any misadventure either of the defence is sustained calling for express malice to checkmate it.

In other words, failure of the plaintiff to file a Reply to the Defence of fair comment or qualified privilege in an action for defamation does not per se defeat the plaintiff’s action where there is strong evidence of implied malice. But where the defence of fair comment or qualified privilege is sustained thus rebutting implied malice the plaintiff cannot fall back upon the plea of express malice to defeat the defence of fair comment or qualified privilege since that plea could not have been raised as an issue on the parties’ pleadings.

The result is that, if as in the case in hand, the plaintiff/appellant chose not to file a Reply to the defence of qualified privilege by the defendant/respondent it is an acceptable ploy. But the plaintiff/appellant would find himself at sea if the defence of qualified privilege succeeds as it has done in this appeal and there is the rub.

Applying the principles distilled from those decisions to the facts of this case the plaintiff/appellant did not file a Reply to the defendant/respondent’s defence of qualified privilege and thus express malice was not made an issue at the trial.

Therefore, taking a strict view of the law grounds of appeal Nos. 3 and 4 from which issue of express malice is formulated are incompetent ab initio as complaints not arising from the proceedings of the court below and with the grounds must also fall the issues Formulated from those grounds. In any case, having exercised the indulgence to examine the two issues on the merits notwithstanding the blemish it will be enough to resolve Issue 4 against the appellant and I do so. By the same token, Issues 3 and 8 in the Appellant’s Brief of Argument considered along with Issues 2 and 3 in the Respondent’s Brief of Argument are also resolved against the appellant.

That brings me to Issues 5 and 10 in the Appellant’s Brief of Argument relating to casting aspersions on the conduct, character and reputation of the appellant by the trial court which are parallel to Issue I in the Respondent’s Brief of Argument to which is germane the question of estoppel raised as Issues 6 in the Appellant’s Brief of Argument all of which will be examined together.

In Issue 5, learned counsel for the appell