Salaudeen V. M.t. Mamman (2000)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A. 

The plaintiff sued the defendant claiming general damages for malicious publication by defendant concerning the plaintiff in the defendant’s letter to the plaintiffs’ employers dated 28th of January, 1993 to wit:

“I hereby affirm that the conclusion we agreed on at the meeting under your reference letter written to us, is still hold, and we still state that the inability to regularise the account in question is as a result of compulsory bribe taken by Mallam M.T. Mamman, the predecessor manager which is above N600,000 and as mentioned in the meeting, we attribute this predicament to his contribution i.e. compulsory bribe taken.

We request your urgent intervention on this issue in order to bail us out if we may recall the second meeting held with Mallam M. T. Mamman was with the motive of agreement on how to settle the debt between us i.e. M.T. Mamman A. A. Salaudeen but since nothing came out of this and your letter of today 25th January, 1993 we still maintained that the payment of the debt should be a joint effort…”

(Italics mine).

Pleadings were filed and exchanged as statement of claim, statement of defence and a two paragraph reply to statement of defence. But in the statement of claim apart from quoting in paragraph 3 of the statement of claim letter already quoted above, the plaintiff recited the contents of two other documents which can respectively be found in paragraphs 4 and 5 thereof. It is appropriate, at this stage to recite the contents of the three paragraphs of the statement of claim. Paragraphs 3, 4 and 5 read as follows:-

“3. On or about the 28th of January, and in a letter dated the said 28th of January, 1993 addressed to the Branch Manager, Trade Bank Plc, Kaduna and signed by the defendant which letter is hereby pleaded, the defendant falsely and maliciously wrote, printed and published or caused to be written, printed and published in the said letter concerning the plaintiff the following words:

“Re: Application for Temporary Facility:

I hereby affirm that the conclusion we agreed on at the meeting under your reference letter written to us, is still hold. And we still state that the inability to regularise the account in question is as a result of compulsory bribe taken by Mallam M. T. Mamman, the predecessor manager which is above N600,000 and as mentioned in the meeting, we attribute this predicament to his contribution i.e. compulsory bribe taken …

We request your urgent intervention on this issue in order to bail us out if we may recall the second meeting held with Mallam M.T. Mamman was with the motive of agreement on how to settle the debt between us (i.e. M.T. Mamman A. A. Salaudeen) but since nothing came out of this and your letter of today Jan., 1993 we still maintained that the payment of the debt should be joint effort …”

4. That the defendant further falsely and maliciously caused his solicitors to write, print and publish words concerning the plaintiff in a letter Ref: NO SNC/09/93, dated 8th February, 1993 to the plaintiff’s employer by their said solicitors. The plaintiff hereby pleads and shall rely on a copy of the letter at the hearing of this suit. The said letter is published to the following effects:-

Re: Letter of Demand on Mr. A.A. Salaudeen on behalf of Trade Bank Plc.

“…we are given to understand by our client that the account is jointly operated by himself and your clients former Kaduna Branch Manager, now Area Manager (North) Mallam M. T. Mamman. It is also our client’s contention that Mallam M.T. Mamman aforesaid has benefited from the account to the tune of about N600,000 (six hundred thousand Naira only) with effect that all our client’s effort to liquidate and/or regularise the said account has been reduced to nothingness …”

(Italics mine).

5. On or about the 27th January, 1993 and in the minutes of a meeting held on the same date which minutes is hereby pleaded, the defendant falsely and maliciously caused to be written, printed and published the following words concerning the plaintiff:-

Visitation report to Alh. A. A. Salaudeen shop:

” … The main issue deliberated on was how to regularise the account in question by the family. They however maintained that if they are to pay the debt off, it has to be between the Area Manager in person of Mr. M.T. Mamman. We later asked them for the reason why it should be so and we were told as claimed by the customer that his inability to regularise the account is as a result of the compulsory bribe taken by the then Branch Manager which was above N1 million in less than a year.

(Italics mine)

Clearly, the three letters were written by different authors the first letter was written by the defendant personally while the remaining two were written respectively by the defendant’s counsel and officials of the plaintiff’s employer.

The plaintiff testified in support of his claim. The defendant also gave evidence in his own defence. Apart from each party adducing evidence in support of his own case, neither party called further witnesses. The learned trial Judge, in a reserved and considered judgment, concluded as follows:-

“In view of all the foregoing, it is my finding that the plaintiff is entitled to be awarded aggravated and exemplary damages. I assess and fix same at N750,000.00 (seven hundred and fifty thousand Naira only). The plaintiff is also entitled to his prayers nos. 2 and 3 of paragraph 9 of the statement of claim dated the 9th day of January, 1995. They are hereby granted as prayed”.

The respondent’s claim which went to trial reads as follows:-

Whereof the plaintiff claims as follows:-

1. Aggravated or exemplary damages in the sum of N3,000,000.00 (Three million Naira only).
2. Apology letter to be written to the plaintiff and copied to the Managing Director of the plaintiff and all the plaintiff’s employer’s branches in the North.
3. An order of perpetual injunction restraining the defendant by himself or by his servants or agents or otherwise howsoever from the publication of the said words or any of them to the like effect concerning the plaintiff.”

The defendants (hereinafter referred to as appellant) was aggrieved by the decision of the learned trial Judge and appealed to this court on 4 original and 8 additional grounds of appeal.

Learned counsel, at the hearing of the appeal, adopted their respective briefs of argument on behalf of their clients. In the briefs issues for determination were identified. The appellants identified nine issues as calling for determination in this appeal. Two of the issues that is issues 7 and 8 appear to me to be incompetent as they smack more of an inchoate grounds of appeal complaining of misdirection in law without particulars. The appellant’s formulation reads as follows:-

“1. Whether the issues joined in the pleadings filed by the parties in this case included any matter relating to publication of the words complained of to persons other than the employer of the respondent via the letters referred to in paragraphs 3, 4 and 5 of the statement of claim and whether evidence relating to the publication to such other persons including the brother of the defendant and the Auditor of Trade Bank were properly and validly admitted in evidence and if these pieces of evidence were wrongly admitted whether the learned trial Judge was wrong in holding that the defence of privilege does not avail the defendant based on those pieces of evidence in the circumstances.

2. Whether in the assessment of damages the learned trial Judge followed the guiding principles in determining quantum of award of general damages and in particular award of damages in similar cases as should have been the case.
3. Whether a finding that the words complained of in a libel action is false disentitles a plea of qualified privilege from any chance of succeeding.
4. Whether the statement of claim in this action discharged a cause of action following its failure to give the name of any human being who read the contents of the words complained of by the plaintiff.
5. Whether the learned trial Judge erred in law in holding that the burden of prove was on the defendant of proving the alleged receiving of bribe beyond reasonable doubt when the plaintiff to whom the allegation relates is not a public officer and is therefore incapable of committing the offence imputed to him under the criminal law, Penal Code of Kaduna State which is applicable.
6. Whether the learned trial Judge erred in law in holding that the words complained of was proved and that the defence of qualified privilege did not avail the defendant. The decision was perverse also.
7. Whether the learned trial Judge misdirected himself in holding as follows:-

“Now the allegation contained in exhibits 4, 5 and 6 are criminal in nature. They required proof beyond reasonable doubt particularly by the force of section 138(1) of the Evidence Act. In the instant case, there is no proof beyond reasonable doubt that the plaintiff has received bribe. See also Garba v. University of Maiduguri (supra) at 609 where the Supreme Court held that persons accused of committing a criminal offence must be taken before a court of law for trial in the instant case there is no evidence of such a trial. I therefore find the writing, printing and publishing of exhibits 4, 5 and 6 as defamatory.

8. Whether the learned trial Judge misdirected himself when he held as follows:-

“It has also been established that the allegation of crime has not been investigated and subsequently tried before a court of law. The accounts ledger of the defendant said to be jointly operated has not been brought to the court. It has not been shown to me that the typist in town who typed Exhibit 4 has the corresponding interest to receive the contents of the said Exhibit 4. For all the reasons set out, I am of the firm view that the defence of qualified privilege does not avail the defendant.”

9. Whether the plaintiff proved publication of the words complained of on the admissible evidence in this case and whether there was any proper finding of fact that the words complained of were defamatory.”

Learned counsel for plaintiff (hereinafter referred to as respondent) framed only three issues as calling for determination in the appeal. The three issues which are not related to any of the grounds of appeal read as follows:-

“1. Whether in the light of pleadings and the totality of credible evidence led at the trial of this case, the respondent established his case against the appellant as required by law.

2. Whether the defence of truth, justification and qualified privilege are available to the appellant in this case and whether the respondent’s failure to deliver a reply giving particulars of malice in fact is fatal to his case when from their circumstances of this case malice could be and was actually inferred by operation of law.
3. Whether the award of N750,000.00 (Seven Hundred and Fifty Thousand Naira Only) as damages for libel is proper in the circumstances of this case.”

(Italics mine).

On issue 1, learned counsel for the appellant referred to publications pleaded in paragraphs 3, 4 and 5 of the statement of claim. He contended further that all that was required of the court was to decide on whether or not the publication was made on privilege occasion since the parties did not join issue on excess of privilege.

In the respondents brief, it was contended that he pleaded the minutes of a meeting which minutes was admitted as Exhibit 5. He contended further that at paragraph 3 of the statement of claim respondent pleaded and tendered a letter dated 28/1/93 which was also admitted as Exhibit 4. He argued that appellant admitted under cross-examination that:-

“In the presence of five (5) people in Exhibit 5, I told them that the plaintiff took bribe of over N600,000,00. I do not type. Exhibit 4 was typed by a typist in town…”

He contended that it is apparent on Exhibit 5 that the names of persons were stated including the name of the appellant at p. 29 lines 30-32 of the records that:-

“sometime, he will come to collect it in company from my senior brother Alhaji Abdulazeez Salaudeen.”

Learned counsel for respondent contended that it is good law that where a document is pleaded by a party, the document is deemed in law to have been reproduced in the pleading thus forming part of the pleadings. He relied on Nigerbrass Shipping Line Ltd & Another v. Aluminium Extrusion Industries Ltd. (1994) 4 NWLR (Pt. 341) 733, 743. It is not the law according to respondent as suggested by the appellant in his brief that answers elicited from a witness under cross-examination ought to have been pleaded before admitting them in evidence as such answers emanating from examination remain unchallenged.

Learned counsel for respondent further submitted that publication of a libelous letter by a person who is not a solicitor, acting in the course of his duties for a client, is actionable. I propose to dispose off the last submission of the learned counsel for respondent before returning to the other argument canvassed by both counsel under this issue. The learned trial Judge in the course of his judgment said “I therefore find the writing printing and publishing of exhibits 4, 5 and 6 as defamatory”. But on the submission of the respondent’s counsel this finding cannot be wholly correct. The respondent while testifying in court said:-

I am also aware of a document titled visitation report on the shop of Alhaji A. A. Salawu. I am also aware of the letter dated 8/2/93 from the defendant’s solicitors. These are the 3 documents.

Ogbonna:- We apply to tender them by consent.

Oko:- No objection.

Court:- Letter dated 28/1/93 is admitted as Exhibit 4, photocopy of visitation report Exhibit 5 and the solicitor’s letter dated 8/2/93 is admitted as Exhibits 6.”

(Italics mine).

Clearly, on the submission of the learned counsel for respondent Exhibit 6 which is a letter written by a solicitor acting in the course of his duties of his client cannot be defamatory. See Boxsius v. Goblet Freres (1891) 4 All ER 1178 at 1180; Kopes, L.J. cited his decision in Pullman v. Hill (1891) 1 Q.B 524 at 530 with approval.

I agree with the learned counsel for appellant that not only parties are bound by their pleadings the court too is bound and must not base its judgment on a matter which is not pleaded. The parties are bound by triable issues in their pleadings.

Facts not pleaded go to no issue and must be discountenanced: Ochonma v. Unosi (1965) NMLR 321, 323; Njoku v. Eme(1973) 5 SC 293, 300; Total v. Nwako (1978) 5 SC 1, 16-17; James v. Mid-Motors Nigeria Ltd. (1978) 11-12 SC 3163-64; Yakassai v. Incar Motors Ltd (1975) 5 SC 107; Usenfowokam v. Idowu (1969) NMLR 77, 81 and Abike v. Adedokun (1986) 3 NWLR (Pt. 30) 548, 554. I also agree with him that counsel has a duty to object to the evidence not pleaded. Where matter has been improperly received in evidence through oversight it should be disregarded or rejected in the course of writing judgment National Investment & Property Corporation v. Thompson Organisation (1969) 1 All NLR 138, 142-143.

The learned trial Judge having let in or allowed the answers he should have ignored them as they went to no issue as settled by the pleading. This view is in agreement with the decision in George v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71, (1963) 1 SCNLR 117 and also with the dictum of the Federal Supreme Court in the case Idahosa v. Orosanye (1959) 4 FSC 166, 171, (1959) SCNLR 407 and in S. O. Bada v. Chairman L.E.D.B. & others unreported decision in suit No. SC. 502/65 delivered on 23rd June, 1967 where the Supreme Court observed inter alia as follows:-

“The evidence in regard to long possession did not pertain to matters arising out of the pleading and so should have been ignored and rejected by the learned trial Judge who should have confined himself to determining the issue raised by the pleadings, as was said by Lord Summer in North Western Salt Co. Ltd v. Electrolytic Alkali Co. Ltd. (1914) AC 461 at 481

‘Much of the oral evidence was strictly immaterial since though obtained in cross-examination, it went to no issue.’

See also Usenfowokan v. Sule Salami Idowu & Another (1969) 1 All NLR 125, 132 where Supreme Court stated as follows:-

“…The learned trial Judge accepted and acted upon the facts elicited from the appellant under cross-examination, when clearly those facts should have been ignored by him as not properly arising for consideration on the issue pleaded before him. We are unable to come to any conclusion on what would have been the judgment of the learned trial Judge had he considered only the evidence properly admitted and certainly this court cannot say whether he would have come to the same conclusions on those facts.”

And where matter has been improperly received in evidence in the court below, even when no objection has been raised, it is the duty of the appellate court to ignore and reject it and decide the case on legal evidence Jacker v. International Cable Co. Ltd (1888) 5 TLR 13, The respondent relied on publication to certain class of persons pleaded in paragraphs 3, 4 and 5 of the statement of claim. The learned trial Judge in his judgment went ahead to consider publication to a typist, and four or five other persons which evidence were founded on facts not pleaded. All that was required of the learned trial Judge, having regard to the state of pleadings, was whether the publication was made on a privileged occasion and if he so found he was bound to throw out the respondent’s claim. It was not part of the respondent’s case on the pleadings that there was excess of privilege the question of appellant exceeding his privilege does not, therefore arise not to talk of consideration and determination thereon. The submission of the learned counsel for respondent, based on the case of Nigerbrass Shipping Line Limited & Another v. Aluminium Extrusion Industries Limited (1994) 4 NWLR (Pt. 341) 733, 743 to the effect that once a document is pleaded by a party it is deemed to have been incorporated or reproduced in the pleading and thus forming part of the pleading, does not assist the respondent’s case. The respondent, on this authority, is not relieved of the burden to plead the publication of Exhibit 5 to four or five persons including the brother of appellant, Alhaji Abdulazeez Salawu so as to demonstrate the publication of Exhibit 5 to them exceeded appellants’ privilege: What the case of Nigerbrass (supra) relieves the respondent of its proof of the person to whom the respondent published the matter contained in Exhibit 5 because once we look at that document these people’s name would be found there but whether the presence of their names pro tanto amounts to excess of privilege is what called for pleadings: In this connection Singleton, J., said in Day v. William Hill (Park Lane) Ltd. (1949) 1 All ER 219, 221 where Singleton said:-

“I am not sure that there was any necessity for the affidavit sworn on behalf of the defendants. All that that affidavit did was to exhibit the documents referred to in the statement of claim. It should be clear that, if documents are referred to in a pleading, they become part of the pleading, and it is open to the court to look at them without the need of any affidavit exhibiting them”.

(Italics mine)

The essence of pleading excess of privilege is to avoid taking the appellant by surprise. The document in issue in Exhibit 5, titled Visitation Report to Alhaji A.A. Salaudeen shon, was not prepared by the appellant. It was a report prepared by two officials of respondent’s employer in its bid to recover the money. It was jointly signed by one A. O. Orugun, Senior Manager and F.O. Balogun Advances Supervisor. For easy reference I reproduce the document immediately hereunder:

“VISITATION REPORT TO ALH. A. A. SALAUDEEN SHOP:

We visited the above customer’s shop on 11th December, 1992 as a follow-up to our numerous visits to his shop with a view to making them regularise their account which is in debt. Alhaji Salaudeen took us to his senior brother in person of Alhaji Azeez Salaudeen, who claimed that he had wanted to come to us inviting us for a meeting with their family. This meeting is aimed to bailing them out. He later gave us appointment for 12.00 noon that day.

The meeting started 12.10 p.m., in attendance are:

1) Alhaji Yekeen Oyeleke

2) Alhaji Lamidi Adeyemi

3) Alhaji Raifu Ade Olawuyi

4) Alhaji Azeez Salaudeen

5) Alhaji Abdul-Rasaq Salaudeen

The main issue deliberated on was how to regularise the account in question by the family. They however maintained that if they are going to pay the debt off, it has to be between the Area Manager, the predecessor of the present Branch Manager in person of M.T. Mamrnan. We later asked them for the reason why it should be so and we were told as claimed by the customer that his inability to regularise the account is as a result of the compulsory bribe taken by the then Branch Manager which was above N1.0 million in less than a year. The family later resolved to have a meeting with us including the accused Manager before they could settle the debt.

(Sgd) (Sgd)

A. O. Orugun F. O. Balogun

Senior Manager Advances Supervisor

Clearly appellant is not the author of Exhibit 5 which is pleaded in paragraph 5 of statement of claim. The five persons respondent claimed the court had in mind in holding that the appellant exceeded his privilege actually attended the meeting at the instance of the bank official not appellant’s. If the document was defamatory of the respondent, Mr. A. O. Orugun, F. O. Balogun the co-authors, and not the appellant, should be held liable.

What appellant said at the meeting and which probably formed the basis of the minute was oral and has not been pleaded as required in defamatory cases.

What is presently pleaded is the impression of the co-authors of what transpired at the meeting. There is neither pleading nor scintilla of evidence that the respondent published the minutes contained in Exhibit 5 to any person or group of persons:

If the evidence extracted from the appellant under cross-examination that:-

In the presence of five (5) people in Exhibit 5, I told them that the plaintiff took bribe of over N600,000.00. I do not type. Exhibit 4 was typed by a typist in town…”

and the matter was not pleaded already by either party it goes into no issue and to make it admissible the respondent had a bounding duty to plead same. To reinforce the need to plead the material inadvertently injected on the record through cross-examination the issue of the typist was not discussed nor raised in any of the three documents pleaded in paragraphs 3, 4 and 5 of the statement of claim which are now admitted as exhibits 4, 5 and 6. The Supreme Court decisions in Woluchem v. Gudi (1981) 5 SC 291, 320-321 cited in the appellant’s brief Bada v. Chairman L.E.D.B (supra) strengthened my view that evidence extracted during cross-examination are not special species excluded from the rules of pleadings.

The learned trial Judge fell into grievous error in considering and placing reliance on evidence adduced in respect of facts not pleaded.

This is a convenient point to dispose of the incidental issue of whether defence of qualified privilege is voided by the appellant who cannot type, in making a statement on a privilege occasion, delivering the letter to a typist for purpose of having it typed? Certainly not. This is a publication which is permitted in ordinary course of business. The document sought to be or typed written, though defamatory, but the privileged words do not lose their privilege by submitting it to a typist in the reasonable course of business Lawless v. Anglo-Egyptian Cotton & Oil Co. (1869) LR4 QB 262, Boxsius v. Goblet Freres (1894) 1 QB 842, Roff v. British & French Co. (1918) 2 KB 677 and Edmondson v. Birch Co. (1907) 1 KB 371, 380. At page 382 of the Edmondson’s case Fletcher Moulton L.J. said:-

“If a business communication is privileged, as being made on a privileged occasion, the privilege covers all the incidents of the transmission and treatment of that communication which are in accordance with the reasonable and usual course of business”.

The appellant is entitled, if the communication is privileged for being made on a privileged occasion, to means of facilitating the communication.

The answer to appellant’s issue 1 is answered in the negative. Evidence extracted from appellant in the course of his cross-examination establishing publication to persons other than as pleaded in paragraphs 3, 4 and 5 of the statement of claim are hereby expunged because they do not arise as parties did not join issue on them.

Next to be considered is appellant’s issue 3. In this connection learned counsel for the appellant pleaded justification and qualified privilege and they must be deemed as having been pleaded in the alternative. Learned counsel for appellant contended that to defeat a plea of qualified privilege the respondent has to plead and prove that the defendant did not believe in the truth of what he published.

In the respondent’s brief, learned counsel for respondent contended that the totality of evidence led by the parties shows that the allegation by the appellant that the respondent took bribe was reckless, false an unjustified and the trial court was right when he held that:-

“…the truthfulness and justification of the publications in exhibits 4, 5 and 6 have not been established. I find the publications in exhibits 4, 5 and 6 to have been made out of spite and malevolence as averred in paragraph 8 of the statement of claim.

They are all untrue. The defences put up do not avail the defendant …”

Learned counsel further submitted in the respondents brief that for the defence of truth, justification and qualified privilege to avail the appellant, in this case, he must establish the following ingredients jointly:-

(a) That there exist a common interest between himself (the maker of the statement) and the persons to whom it was made.

(b) That the facts he relied upon were true.

With respect both the learned trial Judge and the learned counsel for respondent quibbled on the nature of defences the appellant put up at the trial. The two defences are justification and qualified privilege both require different considerations.

Learned trial Judge and learned counsel for respondent respectfully fell into serious error when they rolled up the two separate and distinct defences into one and considered them as if there is no difference between them the two defences can, therefore, not be treated together as the learned trial Judge did in the passage quoted above from his judgment.

The submission of the learned counsel for respondent that existence of common interest and truthfulness of the statement must co-exist or must be jointly present before the appellant can take benefit of the defences is equally erroneous.

There is nothing further from the truth. That is not the law. The correct position is that the two pre-conditions which learned counsel contended must exist jointly to avail the appellant of the defences of justification and qualified privilege are respectively for the defences. A defendant who raised a defence of qualified privilege has the onus of showing that there exist a common interest between himself (the maker of the statement) and the person to whom it is communicated. On the other hand, the defence or justification, to be successfully foisted, demands of the defendant that the facts he relied upon were true. In the circumstance here, the fact whether or not the allegations of the defendant in the offending publication are true is relevant only when the plea of justification is being considered. The defence of justification can be raised disjunctively or conjunctively where the latter approach is adopted it is in the alternative. Both or either may avail the defendant. In A.C.E. Jimona v. NEC Ltd. (1966) I All NLR 122, 124 cited in the appellant’s brief and Agidigbi v. Agidigbi (1996) 6 NWLR (Pt. 454) 300, 313 it was held that inconsistent defence are permissible in pleadings and when raised each defence is taken to be in the alternative.

I agree with learned counsel for appellant that to thwart appellant’s plea of qualified privilege the plaintiff has to aver in his reply of statement of defence and establish by credible evidence that the appellant did not believe in the truth of what he stated. What is normally involved in the defence of qualified privilege is that it is the occasion on which the statement is made that is privileged. The statement having been made on a privileged occasion malice (technical or actual) or express malice cannot be implied from the defamatory expression thereon, but must be proved as a real fact. The burden of proving express or actual malice in fact is on a plaintiff who is to plead and show that a defendant did not believe the truth of what he published of and concerning him. In the instant case, the burden of proof is on the respondent to establish that the appellant wrote the letter of and concerning him for a wrong, improper and indirect motive and not for the purpose of regularising his account with respondent’s employer. The finding of the learned trial Judge that “I find the publications in exhibits 4, 5 and 6 to have been made out of spite and malevolence as averred in paragraph 8 of the statement of claim is respectfully erroneous. Such finding cannot be done on the basis of averment in the statement of claim rather it has to be alleged and proved on preponderance of evidence that the appellant was actuated by express malice which cannot be implied from the defamatory expression in the manner learned trial Judge seems to have done. There is no allegation nor evidence that the defendant did not honestly believe that what he published of and concerning the respondent is true.

Learned counsel for respondent, both in this court and in the trial court, conceded this much and the learned trial Judge equally found that he failed to plead not to talk of proving actual or express malice.

In this connection, I refer to the decision of this court in Obasuyi v. Ezeighu (1991) 3 NWLR (Pt. 181) 585 at pages 594-595 where the court said:-

“…of our law that the defendant in raising this plea must show the truth of the defamatory words. A person can publish of and concerning another without incurring any liability on an occasion of privilege without showing the truth of the communication. It is settled law that the occasion is privileged if the defendant believed in the truth of the communication. The tenor of the defamatory document is not in doubt. The appellant positively believed that the respondent constituted a threat or danger to the well being of his family when he undoubtedly has moral or social duty to protect and earnestly or honestly believe that he could achieve safety and peace for them by having a change of flat whereby he would cease to be respondent’s neighbour. In Stuart v. Bell (1891) 14 L.T. 633, Lindley L.J. Said at p. 638:-

” … I can find no better answer to this question than that given by Parke, B., in Toogood v. Spyrino (ubi Sup.), and by Earle, CJ., in Whiteley v.Adams (ubi Sup.) In Toogood v. Spyring, Parke, B., in speaking of the publication of statements false in fact and injurious to the character of another said:-

“The law considers such publication as malicious unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs in matters where his interest is concerned.

In such cases, the occasion prevents the inference of malice which the law draws from unauthorised communications and affords a qualified defence depending on the absence of actual malice. If fairly warranted by any reasonable occasion of exigency and honestly made, such communications are protected, for the common convenience and welfare of the society; and the law has not restricted the right to make them within any narrow limits.”

See also Watt v. Longsdon (1930) 1 KB 130, 143; and Harrocks v. Lowe (1975) AC 135, 149 where Lord Diplock said:-

“The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny, has nevertheless to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognises that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kinds is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue…”

(Italics mine)

Having shown that a person may, without incurring legal liability, make statement about which are defamatory and infact while on an occasion of qualified privilege, I need not go further to consider what constitutes a privileged occasion and whether the appellant’s communication to the respondent’s employer falls within the contemplation of the defence. The reason being that learned trial Judge fell into grievous error in his consideration of the two defences the appellant put forward.

Learned counsel for appellant canvassed issues 5, 6, 7 and 8 together rather than treating them separately. I agree with the learned counsel for appellant that the defence of receiving gratification under section 115 and 116 of the Penal Code is predicated upon the receiver being a public officer. In the instant appeal the respondent failed to allege and prove that he is a public officer. What is pleaded and proved in the trial court is that he was an employee of a public limited liability company which is in the business of banking. In the circumstance, he cannot be charged talkless of being convicted of the offence of receiving gratification under the two sections in the Penal Code. It is, therefore, erroneous to allege that the respondent was accused of crime. It must first be shown that receiving gratification is a criminal offence for which the appellant could be charged and possibly convicted before the onus of proof beyond reasonable doubt can be in issue. The burden of proof on appellant as defendant was therefore not one beyond reasonable doubt. See Farashi v. Yakubu (1970) NNLR 17, 19. It is only when a person is accused of an offence or crime in respect of which he can be charged that the defamation or slander is actionable per se.

In the respondent brief, it was sought to argue that the accusation was that of commission of a crime by virtue of section 43(1) and (2) of Banks and other Financial Institutions Decree No. 25 of 1991 which provides that it is an offence for a manager or any officer of a bank or any other person receiving renumeration from a bank to ask for, receive, consent or agree to receive any gift, commissions, money, property or thing of value for his own personal benefit or advantage from any person for procuring or endeavouring to procure for any person any advances, loans or credit facility from the bank. This cannot avail the respondent, at this stage of the proceedings because the word complained of amounted to receiving gratification. Any receiving of gratification was the only innuendo the learned trial Judge considered and found upon.

Even if the words are capable of interpretation alleging that the appellant accused respondent of committing a crime the plea of the qualified privilege avails him because it is not his duty to prove the truth of his allegation. What he is required to prove is honesty for making it which defence the learned trial Judge failed to consider. It is immaterial whether or not he has reasonable ground for making the allegation. Tumer v. M. G. M. Pictures Ltd. (1950) 1 All ER 449, 465, Bullen and Leake Precedent of Pleadings 12th Edition. Privilege is founded on the relationship between the parties and the duty therefrom; Phoebus Economides v. Thomopulous & Co. Ltd (1956) SCNLR 40, (1956) 1 FSC 7. The relation of the parties was one of customer and banker and the privileged occasion had to do with the protection of the appellant’s pecuniary interest. See Bullen and Leake 12th Edition Pp. 1173, 1174 where the learned authors said:-

“If the defendant, at the time of making the privileged communication complained of, honestly believe it to be true, it has been immaterial that he has no reasonable grounds for so believing (Clark v. Molyneux (1877) 3 QBD 237, cited in Turner v. MGM Pictures Ltd. (1950) All ER 499 at 462; honesty, not reasonableness, is the state of mind required to rebut malice ibid., per Lord Porter at 463; and Harrocks v. Lowe (1974) 2 WLR 282 H.L”. The learned counsel for the appellant on issue 9 contended that it is trite law that the plaintiff in an action for defamation must establish three elements which are:-

“1. That the words are defamatory.

2. That the words referred to the plaintiff.
3. That the words were published to at least one person other than the plaintiff.”

Learned counsel for appellant further contended that in the case Dr. L. Nthenda v. Paul Alade & other (1974) NNLR 94 it was held that in determining whether the words are defamatory or not the learned trial Judge:-

(a) must make a ruling upon the evidence whether the words complained of are capable of referring to the plaintiff.

(b) must then decide on the evidence as a question of law whether the words are capable of being defamatory in meaning in the minds of reasonable men in all the circumstance of the case; and

(c) if the words are so capable in law or conveying a defamatory meaning, he must then find as a question of fact whether the words do in fact convey a defamatory meaning. Learned counsel for appellant argued that as a result of the failure of the trial Judge to make such finding in this case the appeal must succeed and the judgment of the trial Judge set aside.

In the respondent’s brief of argument, learned counsel for respondent contended that a specific finding that the words are defamatory in the circumstance of this case on the finding of the learned trial Judge that the publication was libelous and criminal (see page 48 of the records) is superfluous. He also contended that the court is not required to specifically find that the words were defamatory especially where truth and justification are put up as defences and the words are already admitted as being criminal and defamatory of the respondents in this case.

He referred to the case of Atoyebi v. Odudu (1990) 10 SCNL 52, 63, (1990) 6 NWLR (pt.157) 384. He finally submitted, in case the court, inspite of pleadings, evidence, and findings of fact of the trial court, is of the opinion there is a need for such a specific finding, that is, that the words are defamatory the court should rely on S.16 Court of Appeal Act 1976 in making such finding based on the record of appeal.

‘I cannot find at page 48 of the record of appeal where the learned trial Judge found that the publication was “libelous and criminal”. He, however, found at page 47:- “I therefore found the writing, printing and publishing of exhibits 4, 5 and 6 as defamatory.” Exhibits 4, 5 and 6 are written by three different persons. They were written respectively by the appellant, officials of the respondent’s employer in the course of their duty and appellant’s solicitors, S. N. Chukwurah. I have already found that exhibit 6 is privileged. I have equally found that exhibits 5 was not printed, written or published by the appellant personally nor at his instance. The question whether the publications are individually or jointly defamatory is not stated and cannot be answered by me. If the document is cumulatively defamatory the appellant can only be found liable for his own contribution and the effect his own writing had on the mind of the learned trial Judge is not ascertainable. There is no finding that Exhibit 4 on its own is defamatory. I now return to the question raised in issue 9. The finding of the learned trial Judge that those documents are defamatory is not clear whether it is in law or in fact. The learned counsel for respondent apparently, in the respondent brief, did not contest that the matter was published to any person other that the respondent’s employer. The learned trial Judge, however, found that exhibit 4 was published to the typist who typed it on behalf of the appellant. The fact that the question of publication to the typist is not pleaded have been exhaustively dealt with in his judgment. I do not propose to further go into the matter.

Exhibit 4 was appellant’s reaction to the letter of demand from respondent’s employer demanding for repayment of his overdraft or loan.

It is pertinent to repeat the letter which reads as follows:-

“A. A. Salaudeen

P. P. 5 Ibrahim Taiwo Road

Kaduna

28-01-95

The Branch Manager

Trade Bank Plc,

Kaduna

Dear Sir,

Re-Application for Temporary Overdraft Facility:

With reference to your letter Ref No. KD/070/93/118/RG71930 dated 28th Jan., 1993.

I hereby affirm that the conclusion we agreed on at the meeting under your reference letter written to us, still hold. And we still state that the inability to regularise the Account in question is as a result of compulsory bribe taken by Mallam M. T. Mamman, the predecessor Manager which is above N600,000.00 and as mentioned in the meeting, we attribute this predicament to his contribution i.e. compulsory bribe taken.

We request your urgent intervention on this issue in order to bail us out if we may recall the second meeting held with Mallam M. T. Mamman was with the motive of agreement on how to settle the debt between us (i.e. M. T Mamman A. A. Salaudeen) but 84 Nigerian Weekly Law Reports 27 November 2000 (Salami, J.C.A.) since nothing came out of this and your letter of today 28th Jan., 1993 we still maintain that the payment of the debt should be a joint effort.

Thank you,

(Italics mine)

In the connection learned trial Judge in respect of corresponding interest rightly state the principles thus:-

“A defendant pleading the defence of qualified privilege must establish that the person who made the communication complained about had an interest or duty to make it and the person to whom it was so made had a corresponding interest or duty to receive it:-

See Akamagwuanna v. SBN Ltd. (1995) 3 NWLR (Pt. 383) page 343 at 352 – 353 …”

The learned trial Judge then after discussing other unrelated matters returned to the issue of matching interest or otherwise thus:

“It has not been shown to me that the typist who typed Exhibit 4 has the corresponding interest to receive the contents of the said Exhibit 4 for all the reasons set out, I am of the firm view that the defence of qualified privilege does not avail the defendant.” The learned trial Judge was portentously silent on whether there was matching or corresponding interest between the appellant and the respondent’s employer which ominous silence is deemed as acceptance of existence of such duty. He adroitly but not candidly pegged his objection of the appellant’s defence of qualified privilege on publication to an unknown typist in the town. But whether identified or not the publication of Exhibit 4 of the typist did not form part of the respondent’s case at the trial court. The inclusion of typist is otiose or irrelevant to the issue before him.

If the learned trial Judge had properly directed himself he would have come to the inevitable conclusion that appellant established that he had interest or duty to write Exhibit 4 and the person to whom it was communicated has corresponding interest to receive same. Where a business communication is privileged for being made on a privileged occasion, the privilege extends to incident of transmission and treatment of that communication which are in accordance with reasonable course of business.

On issue 2 in the appellant’s brief, it was contended that the learned trial Judge in awarding the sum of N750,000 failed to state the principle which guided him in coming to that quantum of damages. It was submitted that like in all other torts award of general damages must take into account of awards in similar cases.

It was further contended that the reputation of the respondent had been restored by the judgment and argued that the publication was directed at the respondent who can read and appreciate the judgment. He referred to Isola Dina v. New Nigerian Newspapers (1986) 2 NWLR (Pt. 22) 353 where publication was to the whole world.

In this connection, the respondent counsel in his brief contended that refusal of appellant to retract the said publication when asked to do so also go to further buttress the correctness of the award of N750,000.00 as damages. This submission along with other submissions of the respondent touches upon the principle of award of damages. The learned trial Judge in the instant case failed in his judgment to consider the principles which guided him in coming to the damages he awarded. All his submissions are based on speculation or forcing this court to do the work of the trial court.

I agree with learned counsel for appellant that the object of awarding damages in comparable cases is not to “kill” or ruin the defendant.

The basis upon which a Court of Appeal will intervene in award of damage is either it is too low or excessive. I endorse the dictum of Fakayode, C.J., though merely persuasive, in the case of Brigadier Oluwole Rotimi v. African Newspapers of Nigeria Ltd (1979) 2 OYSHC 1 at 14 which is commended to this court in the appellant’s brief when His Lordship said:-

“Now I must let the hammer fall on the defendant’s heads by way of damages for libel. But I must not hold the sledge hammer of damages high up and I must not let it fall devastatingly on the heads of defendants otherwise I shall cause them financial ruin.”

He then awarded N4,000.00. Similarly in the most recent case of Emeagwara v. Guardian Newspapers Ltd & others (1998) 1 NWLR (Pt. 535) 610, N60,000.00 damages was awarded and in Isola Dina case award of N4,000 was made. All were cases of publication in the newspapers with wide circulations both locally and abroad. But in the instant case considering the plumating value of our currency and the fact that the publication was a mere letter to the respondent’s employer complaining about the manner respondent was running the business of his master I think a general damages of N5,000.00 would have met the justice of the case but the learned counsel in the appellant’s brief conceded N10,000.00. I award the amount conceded to.

Learned counsel for appellant, on his issue 4 submitted that defamation to be actionable has to be published to a third party who should be a human being.

He contended that the statement of claim in the instant case does not name any person other than plaintiff and defendant. He conceded that a publication in a newspaper or magazine is deemed to be published to the world there is no need to mention name of a human being.

In view of disorderly manner the respondent’s brief was written, I am not quite sure whether he responded to the appellant’s issue 4. In any way I cannot find one.

This is not the case of publication of libel or defamation in a newspaper or magazine which by their very nature are publication to the whole world and, therefore, when their contents are complained of in a defamatory action it is unnecessary to mention name or names or biological person to whom they are published since they are deemed to have been read by some persons however poor the circulation of the relevant newspaper or magazine might be. The subject of this appeal does not fall within the contemplation of defamatory publication contained in a newspaper, prospectus handbill or magazine. I cannot lay my hands on the case of Olatosi v. Oladeinde (1969) 2 All NLR 1 on which learned counsel for appellant based his submission that the statement of claim therefore fails to disclose a cause of action.

The authority, however, is that, in the case of a letter or other private communication the name of each person to whom publication is claimed to have been made must be stated in the pleadings or if his name be unknown he must be described in such a manner that disclosed his identity. If this is not complied with the plaintiff, in the absence of special circumstance, will not be permitted at the trial to prove publication to such person: Davey v. Bentinck (1893) 1 QB 185; British Legal and United Provident Assurance Co. v. Sheffield (1911) 1r R 69; Russel and Another v. Stubbs Ltd. (1913) 2 KB 200 and Barham v. Lord Huntingfield (1913) 2 KB 193. The evidence extracted from the appellant under cross-examination seeking to show that there was publication to a typist in town and five other persons mentioned in Exhibits 5 are inadmissible for want of pleadings. But the plaintiff pleaded in respect of Exhibit 4 that “and in a letter dated the said 28th of January, 1993, addressed to the Branch Manager, Trade Bank Plc, Kaduna”. The description had indicated in such a way that will identify him, I mean the manager. The plaintiff can, however, not alleged that the name of his successor as Kaduna Branch Manager of Trade Bank Plc is unknown to him and he failed to state it. I think his pleas fall short of what is required of him except our duty to do substantial justice can be taken as existence of exceptional circumstance. These cases do not support the submission of the learned counsel for the appellant that failure to aver to the name of person or persons to whom a letter complained of amounts to want of cause of action which if sustained would have earned the plaintiff a mere striking out of his action. The authorities merely debar him from leading evidence in respect of such persons whose name are not mentioned in the pleadings.

All issues having been resolved against the respondent and in favour of the appellant the grounds of appeal succeed and are allowed. The appeal equally succeeds and it is allowed. The decision of the learned trial Judge is set aside and the plaintiff’s claim is consequently dismissed. There shall be order of costs in this appeal which I assess at N4,000.00 and in the court below at N2,000.00. The cost ordered in the court below, if it has been paid, should be refunded to the appellant.

In parenthesis the judgment in this appeal is delivered outside the prescribed period of three months because the record was misplaced and was not easily located in the wake of Kaduna sectarian crises.

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Other Citations:(2000)LCN/0786(CA)