IN THE COURT OF APPEAL OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON THURSDAY, THE 4TH DAY OF APRIL, 2024
BEFORE THEIR LORDSHIPS:
JIMI OLUKAYODE BADA JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
PAUL AHMED BASSI JUSTICE, COURT OF APPEAL
APPEAL NO. CA/L/414/2014
BETWEEN:
PRINCE HILARY IZUNDU UNACHUKWU ------------- APPELLANT
AND
CHIEF JONATHAN OBIJIAKU ------------------------- RESPONDENT
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
This appeal is against the Judgment of the High Court of Lagos State (the lower Court) delivered by Okuwobi, J., (Mrs) on 24th February, 2014, in Suit No: LD/1452/2008 as contained at pages 240-263 of the Record of Appeal.
The Respondent in the instant appeal, Chief Jonathan Obijiaku, as Claimant in the lower Court, took out a Writ of Summons against the Appellant, as the Defendant in the lower Court, Prince Hilary Izundu Unachukwu, as contained at pages 1-2 of the Record claiming in his Statement of Claim, dated 6th November 2008 but filed on 7/11/2008, the following reliefs:
1. The sum of N100,000,000.00 being exemplary damages for libel.
2. An Order of Perpetual injunction restraining the Defendant whether by himself or his agent or any person whosoever acting for and on his behalf from further writing and publishing the same or similar libel concerning the Claimant or from publishing any words of similar or like effect concerning the Claimant.
3. The cost of this action.
By his Statement of Defence, the Appellant denied the claim and urged the lower Court to dismiss same with substantial cost for being frivolous, speculative, vexatious and an abuse of Court process.
The fulcrum of the case of the Respondent, as heard and determined by the lower Court is that, the Appellant had defamed him vide a letter dated 1st September, 2008, addressed to the Inspector General of Police and endorsed to Igwe Kenneth Orizu III of Nnewi and three Obis, to wit; the obi of Uruagu, Nnewi; the Obi of Umudim, Nnewi and the Igwe of Nnewichi, Nnewi respectively. The Respondent’s complaint was that the words used in the said publication was in reference to him and his person and that it portrayed him as a murderer, ritualist, and as someone who professes Christianity yet is diabolical.
The Appellant denied authoring the letter, Exhibit C1, but admitted that he wrote Exhibit D7 to the Inspector General of Police only and that the contents of the alleged defamatory letter was true, and also that the contents of the letter was privileged, with the recipients being entitled to receive same. The Respondent filed a Reply to the Statement of Defence after which the trial commenced. At the conclusion of the trial, the lower Court, in its considered judgment, delivered on 24th February, 2014, found in favour of the Respondent. The Appellant became aggrieved by the said decision and filed a Notice of Appeal on 3rd March, 2014 containing four grounds of appeal.
The Appellant, in line with the rules of this Court, filed the Appellant’s Brief of Argument on 16th April 2018 which was deemed properly filed and served on 31st May, 2023, same was settled by Okafor, C.I.A, Esq., Nnabike Nwosu, Esq. and Innocent Igbokwe, Esq. On the other hand, the Respondent’s Brief of Argument was filed on 26th May, 2023 and was deemed properly filed and served on 31st May, 2023. It was settled on behalf of the Respondent by Aderemi Adekile; Okon Uye, Esq., Dr Susan Agu; Ngozi Nwanze; Daniel Anumiten, Esq., Endurance Abiodun, Esq., and Tamara Akpo-Dougha. No Reply Brief was filed by the Appellant.
Arguing the appeal in his Brief of Argument, learned counsel for the Appellant formulated three (3) issues for determination, reproduced as follows:
Learned Counsel for the Respondent on the other hand nominated two (2) issues for determination, as follows:
A careful perusal of the issues for determination in the appeal, as set down by the parties in the appeal, would reveal that the issues are better reframed in order to lead to a more judicious and proper determination of the instant appeal and to narrow the issues in controversy in the interest of accuracy, clarity and brevity. See: Unity Bank of Nigeria vs. Bouari (2008) 7 NWLR (Pt. 1086) 372; Awojugbagbe Light Industries Ltd. vs. Chinukwe (1995) 4 NWLR (Pt. 390) P. 379.
The reframed issues, therefore, are as follows;
SUBMISSION OF COUNSEL ON THE 2 RE-FRAMED ISSUES
In arguing the first issue for determination in the appeal, the Appellant raised a poser, which premised on whether the High Court of Lagos State has jurisdiction in the libel matters, where the cause of action arose from Anambra State of Nigeria and/or the Federal Capital Territory Abuja. Learned counsel, Charles Ikechukwu Okafor, Esq., adverted the attention of the Court to the Appellant’s earliest Application dated 20th December, 2013 contained in pages 167-172 of the Record, where the Appellant had brought the said Application seeking the Order of the lower Court striking out the suit, the subject of this Appeal, for want of jurisdiction. The lower Court after considering the above Application of the Appellant and the Counter-Affidavit of the Respondent dated 6th January, 2014 contained at pages 173-177 of the Record together with the Appellant’s reply on point of law, dated 13th January, 2014 in pages 178-188 of the Record, dismissed the Appellant’s aforementioned Application in its ruling delivered on 24th February, 2014 contained at Pages 228-239 of the Record.
The Appellant’s counsel contended that nowhere was it pleaded that the alleged defamation was published in Lagos State by the Appellant to the Appellant’s Administrative Staff contrary to the finding of the lower Court. It is thus the opinion of Counsel to the Appellant that since no paragraph in the Statement of Claim and the Reply to the Statement of Defence above alluded that the alleged defamatory petition was published in Lagos State by the Appellant, the Lagos State High Court was divested of the requisite jurisdiction and ought not to have assumed jurisdiction in the suit which birthed this instant Appeal.
Counsel restated that the relief sought in the Respondent’s Statement of Claim, and not evidence adduced at the trial or the statement of defence; determines the lower Court’s jurisdiction to hear and determine the suit brought before it. In support of the assertion, learned counsel referred the Court to the following cases: Adekola vs. Ailara (2011) FWLR (Part 572) 1696 AT 1736-7; T.P.P Ltd vs. UBN Plc (2007) 1 WRN PAGE 117 AT PAGE 133-134 LINES 30-5; Chevron (Nig) Ltd vs. L.D.N (2007) 36 WRN 1 AT PAGE 25 LINES 30-40; Ladoja vs. INEC (2007) 40 WRN PAGE 1 AT PAGE 37-38, LINES 25-40; Warri Refinery and Petrochemical Co. Ltd & Anor vs. E. ONWO (1999) 13 NWLR (Part 630) AT 312 AT 326.
It was the contention of Appellant’s counsel that in libel cases, like in the instance, the venue for adjudication is the place where the defamatory matter is published. Counsel cited and relied on the cases of Dairo vs. UBN Plc (2007) 11 MJSC PAGE 74 AT PAGES 69-99; Ezomo vs. Oyakire (1986) 2 SC 260; Egbue vs Araka (1988) SCNJ 190; Ezeugha vs Adimola (1993) 1 NWLR (Pt.271) 620, to submit that Abuja in the FCT and Nnewi in Anambra State ought to be the venue for the adjudication in the matter. In view of this, the Appellant urged the Court to resolve the issue in his favour.
In response to the foregoing, counsel for the Respondent, Aderemi Adekile, Esq., argued that all facts pleaded and evidence adduced before the lower Court never controverted that Exhibit C1 was indeed in existence and likewise published to several persons, he contended that the Appellant, during trial before the lower Court, even tendered his own version of the said libelous letter which was marked as Exhibit D7. He stated that in a suit for Libel, each and every place in which the offending publication is made can give rise to a separate cause of action, it was submitted that where an act of libel happens in several jurisdictions, an action could be competently taken in any of such jurisdictions, relying on the cases of DIN vs. African Newspapers Limited (1990) 3 NWLR (Pt.139) 392; Amadi vs. NNPC (2001) 10 NWLR (Pt.678) 676.
The Court was urged to discountenance the submission made by the Appellant in this regard, and also, to resolve the issue in favour of the Respondent.
Arguing issue two in the Appellant’s Brief, which queries whether or not the Respondent was able to prove the publication of the libelous material as it relates to the four (4) traditional heads in Nnewi, Anambra State, as well as to the administrative staff of the Appellant, Mr. Ikechukwu Okafor, of counsel for the Respondent, submitted that action in libel must fail if publication of the defamatory matter is not proved. Counsel for the Appellant further argued that the proof must be attained by admissible evidence as it is the publication of the libelous material to a third party that gives rise to a cause of action in libel, not the mere writing.
He contended that throughout the trial at the lower Court, the Respondent who alleged publication to the four (4) Traditional Heads of Nnewi never proved such publication of the content of Exhibit “C1” to the four (4) Traditional Heads of Nnewi. Counsel also contended that none of the Respondent’s witnesses proved publication by the Appellant to them and that none of the Four (4) (CW1-CW4) were present when the Appellant allegedly published Exhibit “C1” to the four (4) Traditional Heads of Nnewi in Anambra State. Whilst praying the Court to set aside the finding of the lower Court on this issue, counsel argued that the Respondent never pleaded in his Statement of Claim and the Reply that the Appellant published Exhibit “C1” to his administrative staff by name, Mr. Onyenezi and Mr. Martins Nkanor in Lagos.
It was also argued that the Appellant had in Paragraph 7 of the Statement of Defence denied making or delivering Exhibit “C1” to the four (4) Traditional Heads of Nnewi and that by denying the publication, the onus of proof has shifted to the Respondent to prove that the Appellant is the maker of Exhibit “C1” and that Exhibit “C1” was published to the traditional heads of Nnewi. Appellant’s counsel posited that the name of the person to whom the libelous document was published must be pleaded and that this was not done by the Respondent in their Statement of Claim and Reply to the Statement of Defence. He maintained that the Respondent’s witnesses did not testify that Exhibit “C1” was published to them by the Appellant but by some named and unnamed persons and that those named by the witnesses were never called as witnesses to testify neither was their names pleaded in the Respondent’s Statement of Claim and Reply.
Learned counsel asserted that the evidence of CW1, CW2, CW3 and CW4 as to how they got Exhibit “C1” was hearsay evidence, arguing in the circumstance that Exhibit “C1” has no lawful origin and that the said Exhibit was, in effect, published by the Respondent to himself and to his witnesses (“CW1-CW4”). The Court was urged to hold that the alleged publication of Exhibit C1 by the Appellant to the four (4) Traditional Heads of Nnewi and to the Appellant’s Administrative Staff is not proved by any admissible evidence and to resolve this issue in favour of the Appellant, citing in support, the following cases: Hebadutch vs. Macil Waine & Ors (1894) 2 Q.B S4 at 61; Josadeg Nig Ltd vs. NDIC (2005) 22 WRN PAGE 21 at 36 LINES 45-5; Salaudeen vs. Mamman (2006) 9 WRN PAGE 1 at PAGE 31 LINE 35; Nsirim vs. Nsirim (2004) 26 WRN PAGE 13 at PAGE 30 LINES 15.
The Respondent, on the other hand, argued that it was the Appellant who wrote and published Exhibit C1 and that the publication was written to the Inspector General of Police and copied to the four (4) Traditional Heads of Nnewi in Anambra State. It is the argument of the Respondent that the testimonies of CW1, confirms the fact that the CW1 saw and read Exhibit C1. Counsel submitted that the testimony of CW2, Wahab Sakiru, CW3, Godwin Enegbahu and DW2, Martin Nkano, the Personal Assistant of the Appellant confirms that the publication was read by third parties and that Exhibit C1 was produced by the Appellant. Counsel for the Respondent further argued that it was the totality of these testimonies that the lower Court found that the Appellant admitted authoring and publishing Exhibit C1. He urged the Court to hold that the findings of the lower Court as it relates to the publication remains unimpeachable.
On the reframed issue 2 for determination, which borders on whether or not the defence of qualified privilege avails the Appellant, counsel argued that the Appellant had in paragraph 7 of his Statement of Defence denied being the author of Exhibit C1 or making or delivering the said Exhibit to either the Inspector General of Police in Abuja or to the four (4) Traditional Heads of Nnewi in Anambra State. Counsel argued that the Appellant had in his pleadings and at trial contended the propriety of Exhibit “C1” which was juxtaposed with Exhibit D7, a similar petition which the Appellant addressed to the Inspector General of Police against a prior petition written by the Respondent against the Appellant accusing the Appellant of being a murderer, killer etc. He also argued that the Appellant had launched a serious attack on Exhibit “C1” on the ground that it did not emanate from the Appellant and described Exhibit “C1” as a forgery with particulars of forgery pleaded in paragraph 7 of the Statement of Defence.
The Appellant further argued that Exhibit D7 which he submitted to the Inspector General of Police on the subject matter is a communication made on privileged occasion and adopted same as his defence. Counsel itemized his status in Nnewi and why he is in such a privileged position to write the Petition, Exhibit D7. The Appellant extensively canvassed arguments to convince the Court that the publication contained in Exhibit D7 was a communication made on privileged occasion. The reasons and justifications for the publication were also proffered in the arguments and posed a poser to the effect that the Appellant has a duty by legal, social, private or moral obligation to write exhibit D7 and that the recipient of the Petition, The Inspector General of Police has a corresponding duty or interest to receive exhibit D7. The Appellant urged the Court to find and hold that Exhibit C1 is forged and that the defence of qualified privilege avails the Appellant contrary to the findings of the lower Court.
In his response, the Respondent argued that Exhibit D7 which the Appellant is relying upon is in pari-materia with Exhibit “C1”and submitted that assuming for the sake of argument that there is anything to find in the defence of qualified privilege, that the defence is in itself an admission of publication of Exhibit C1.
Counsel for the Respondent submitted that the Appellant has not in any way shown his interest in the matter between Middle Point Nigeria Limited and Chigozie Okeke and Emeka Ulasi and that the Appellant also failed to show what moral, legal right or duty he has to make the communication to the entities and people copied in the petition.
Counsel further submitted that malice and falsehood destroy the defence of qualified privilege, and that the Appellant has failed to prove that Exhibit “C1” was forged and thus urged the Court to jettison the argument of the Appellant in that regard.
RESOLUTION
I shall commence the resolution of this appeal with the issue of whether or not the defence of qualified privilege inures to the advantage of the Appellant in the circumstance of the case leading to this appeal.
I have carefully looked into the submission made by counsel for the respective parties in the appeal, it is apparent, from the Record, that the parties are ad idem on some areas, to wit; that contents of Exhibit C1/D7 was authored by the Appellant herein; that the said Exhibit was indeed delivered to the office to which it was addressed, i.e., the office of the IGP in Abuja; that the exhibit was produced in Lagos; that some parts of the statement credited to the Appellant were indeed libelous; amongst others.
Parties are, however, at variance, whether the said document was delivered to those endorsed on the face of the said letter, the four named Traditional Rulers in Nnewi, Anambra State and whether the administrative staff of the Appellant were inundated with the contents of the exhibit to qualify same as a publication of same in Lagos State. I shall revert to this in the course of the judgment. In the meantime, I find it apt to relate further on the fact of the case that led to the suit in the lower Court, decision of which birthed the instant appeal.
The Appellant and the Respondent, at all material times prior the institution of the litigation in the lower Court, were in their respective private and business lives, however, they both hailed from the same locality in Nnewi, Anambra State. Both are chieftaincy title holders from their community. Both also profess to be into philanthropy and of high personality ratings in the said community. The Appellant, on 1st September, 2008, authoured Exhibit C1/D7 and addressed same to the office of the IGP, the content of which the Respondent found to be referring to him and whose publication was said to have brought him odium, contempt and had suffered distress humiliation and had been seriously injured in his credit, integrity and reputation.
The Appellant, in his defence to the Respondent’s claim, stated that the contents of the letter were true, thereby making him not liable to the Respondent at all. He also contended that the defence of qualified privilege inures to his protection from liability therefrom. The matter went to trial which culminated into and the judgment delivered on 24th February, 2014, wherein the learned trial Judge held that the Appellant was liable to the Respondent and consequently awarded damages in favour of the Respondent against the Appellant.
It is pertinent to briefly restate what libel, as a civil wrong and tortious liability, connotes. It is settled law that libel is a defamatory publication in writing. It is a tort in which the writer or publisher attacks the reputation, integrity, and fidelity of the victim of the publication. It is injurious to the reputation of someone else and causes the victim to be lowered in the estimation of right-thinking members of the society. See: Sifax (Nig) Ltd vs. Phoenix Capital Ltd & Anor (2023) LPELR-59979 (SC); Iloabachie vs. Iloabachie (2005) LPELR-1492 (SC)
It is a slur, a stigma and a disparagement on the character of the victim with the uncanny effect of looking down on the victim by the society as a societal misfit; one who is loved to be slummed and disliked. See: Weekly Insight and Communication Network Ltd & Anor vs. Peter & Ors (2019) LPELR-46847 b(CA) (Pp. 13).
In the case of Society BIC S.A & Ors vs. Charzin Industries Limited (2014) LPELR-22256 (SC), the Supreme Court stated that a successful claim of libel is dependent on whether the contents of the defamation is proved to be untrue. See: Sifax (Nig) Ltd vs. Phoenix Capital Ltd & Anor (supra).
In the instant case, there was no dispute as to whether the Appellant herein authoured the letter under focus, but the pertinent question is whether the contents of the said letter were truly defaming to entitle the Respondent to damages thereon, or whether the contents of the letter are true which will avail the Appellant’s the defence of justification or whether the defence of qualified privilege as contended on behalf of the Appellant, will avail him from liability thereof.
I find as necessary to reproduce the said letter for the purpose of clarity, as found in pages 52-54 of the Record.
RE: ILLEGAL MANHUNT: CRIMINAL DEFAMATION: PERSECUTION: THREAT TO MY LIFE BY MR. JONATHAN OBIJIAKU OF NO 23 LUGARD AVENUE IKOYI, LAGOS
As a man of modest means and ardent believer in fair play equity and justice, it has become a matter of serious concern to me and the Nnewi Community in Anambra State where I hail from, that I bring to your notice the persecution, malicious prosecution and illegal manhunt launched of me and members of my community by one Mr. Jonathan Obijaku
It is the case of members of my community that Mr. Jonathan Obijiaku, a business man, resident in Lagos, has been terrorizing, intimidating and arresting members of the community in Nnewi on the pretext that the members of the community view his sources of wealth as suspect. Hence, his bogus complaint to the police, leading to numerous arrests, unlawful detentions and trumped-up criminal charges without any iota of proof or legal basis
The said Mr. Jonathan Obijiaku chased a member of my community Mr. Peter Okeke, detained the latter two years at Ikoyi prison where he contacted several ailments and died recently in July 2008. Attached and marked annexure I & II are Advise from the prison doctor and the petition against the judge that granted the said Peter Okeke bail both written by the said Jonathan Obijiaku.
Being apprehensive of the reaction of the community, Mr. Obijiaku proceeded to court "Ex Parte", without notice to members of Mr. Okeke family to secure court order to conduct Autopsy/ port mortem of the dead, wherefore I called his attention, to let the bereaved bury their dead Attached and marked annexure III is the "Ex Parte court process filed by Mr. Obijiaku.
I became the next target.
To my greatest surprises, I stirred up at about 4.30am on Monday 25th August, 2008 to the noise and threat of men I believed to be men of the under-world in my premises in a commando style who turned out to be police men from your esteemed office at Abuja, who stated that their instructions were to whisk me off to Abuja like a common criminal on the petition of Mr. Jonathan Obiajiaku, that I am "a killer" and have been involved in several killings in my community.
These allegations are weighty and serious and demands discreet and dispassionate investigation by your office with dispatch. If proven, the law should take its course, if not proven, I demand among others:
(a) That Jonathan Obijiaku be caused to write and undertaken against the life of my family and myself as same cannot be guaranteed in our community Nnewi where he has stated that I have been involved in several killings.
(b) That his source of wealth which has been the community's heightened fear be investigated by the police to ascertain the veracity or otherwise of his involvement in rituals which he complains quite often as he is commonly identified with.
I am optimistic that this matter would receive the prompt response in respect of the foregoing demands as a matter of urgency to save a soul in view of the substantial injury and inversion the said Jonathan Obijiaku. of my constitutional right by
Thank you,
Yours faithfully,
PRINCE HILARY I. UNACHUKWU
Cc:
1. Igwe Kenneth Orizu III
2. The Obi of Uruagu, Nnewi
3. The Obi of Umudim, Nnewi
4. The Obi of Nnewichi, Nnewi
The Respondent, in paragraph 14 of the statement of claim in pages 5-6 of the Record, specifically pleaded as being defamatory, the usage, by the Appellant, of the following words:
---
“.. is the case of members of my community that Mr. Jonathan Obijiaku, a businessman, resident in Lagos, has been terrorizing, intimidating and arresting members of the community in Nnewi on the pretext that the members of the community view his sources of wealth as suspect. Hence, his bogus complaint to the police, leading to numerous arrests, unlawful detentions, and trumped-up criminal charges without any iota of proof or legal basis.”
And also, that;
“(b) That his source of wealth which has been the community's heightened fear be investigated by the police to ascertain the veracity or otherwise of his involvement in rituals which he complains quite often as he is commonly identified with”.
A cursory look into the statement in contention gives it out as being defamatory of the Respondent, who was said to be a successful businessman; a philanthropist; Igwe of Nnewi cabinet member; prominent member of Nnewi council of chiefs, inter alia. The Respondent averred, in paragraphs 20 and 21 of the statement of claim, in page 6 of the Record, that the;
20. the allegation is false in all material particulars to the knowledge of the defendant
21. ..allegation was actuated by malice and in spite of the claimant by the Defendant in order to settle personal scores and to outwit the claimant in pursuance of chief’s hierarchy and importance in the community”
The Appellant, who maintained that the said contents were true, was unable to convince the learned trial Judge to drive home the justification of the statement he claimed to be true. He however based his defence predominantly on the defence of qualified privilege. By the defence of a qualified privilege, he admitted authoring the statement in issue but contends that the statement was fairly made by him in the discharge of his duty owed to the people of his community as the professed titleholder of Ogbata Onua-Nnewi, the traditional prime minister of Nnewi, he also stated that he was the grand-patron of Nnewi Indigenes in Lagos.
From the Record in cold print before this Court, it is apparent that the parties are at loggerheads over issues not unrelated to the affairs involving some of the indigenes of their community of Nnewi. The Appellant noted at pages 33-34 of the Record, in relation to the said letter dated 1st September, 2008, that;
c. The said letter dated 1st September, 2008, subject matter of this suit;
i. was not malicious and false but actually captured the inglorious action of the claimant who is the habit of laying bogus complaints to the police, leading to numerous arrest, unlawful detention and trump-up criminal charges without any iota of proof or legal basis;
ii. was only written as a complaint and reaction to the claimant’s earlier petition to the IGP against the defendant and stated to be copied to four (4) other persons, being the traditional rulers of segments of the Nnewi community;
iii. when read in totality, it is not defamatory but a complaint to constituted legal authority against the claimant’s uncanny behaviour; and
iv. was necessitated by the exigency and was honestly made to secure the Defendant’s welfare.
The foregoing formed the basis of the defence of the Appellant to the claim of the Respondent before the lower Court. Without mincing words, the defence, as pleaded by the Appellant, is laid at the doorstep of being that of a qualified privilege.
The law is settled that a situation of qualified privilege presupposes that hitherto malicious publication of a statement, found to be false in fact and injurious to the character of another, which the law considered malicious, would be excusable if it is found to be fairly made by a person in the discharge of some public or private duty whether legal or moral or in the conduct of his affairs, in matters where his interest is concerned. A defence of privilege qualification prevents the inference of malice which ought to have been drawn from unauthorized communications and thereby affords a defendant to be admitted into qualified defence. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society. See: Mamman vs. Salaudeen (2005) 12 SC (Part II) Pg. 46, also cited by the Appellant.
In the issue at hand, the Appellant asserted that his action was necessitated by the exigency and was honestly made to secure the Defendant’s welfare. The million-dollar question, at this juncture is, whether in the circumstance of the case, the defence of qualified privilege will avail the Appellant herein.
To be better guided, I make another foray into the decision of the Supreme Court in the case of Mamman vs. Salaudeen (supra), wherein the Apex Court pointedly stated the law on what necessitates the defence of privilege qualification, thus:
"In Adam v. Ward (1917) A.C. 309 at 334, Lord Atkinson defined qualified privilege inter alia, thus:- 'A privileged occasion is ... an occasion where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential." See also Harrison v. Bush (1855) EXB 344 at 348 - 349 per Lord Campbell, CJ.'"
Onnoghen, JSC, (as he then was), in Mamman vs. Salaudeen (supra) at (Pp. 33-35) elucidated the tests for the determination of when a statement would be eligible as that of qualified privilege, thus;
"When the test for determining whether the statement was made in a qualified occasion is that of duty to make the statement, Earl Loreburn in James v. Baird (1916) SC (H.L) 158 at 163 -164 stated the position thus:
"In considering the question whether the occasion was an occasion of privilege, the court will regard the alleged libel and will examine by whom it was published, to whom it was published, when, why, and in what circumstances it was published, and will see whether these things establish a relation between the parties which gives rise to a social or moral right or duty, and the consideration of these things may involve the consideration of the question of public policy."
On the other hand, if the test to be used is that of protection of interests, Lord Esher, M.R. in Hunt vs. Great Northern Railway (1891) 2 Q.B. 189 at 191, laid down the following: -
"The occasion had arisen if the communication was of such a nature that it could be fairly said that those who made it had an interest in making such a communication, and those to whom it was made had a corresponding interest in having it made to them. When those two things co-exist, the occasion is a privileged one."
Still on protection of interest as constituting a ground for the defence of qualified privilege, Lord Young in Shaw v. Morgan (1888) 15 R 865 at 870 stated the position, inter alia, as follows: -
"If the statement is made ... in the reasonable attention to a man's own business and affairs, which gives him legitimate cause to write or speak of his neighbour, the occasion displaces the presumption of malice ... and he is only answerable if malice be shown to have existed in fact."
It is very important to note that whether the statement is made in a discharge of a duty or in protection of an interest, there must be reciprocity on the person receiving same otherwise the defence cannot avail the defendant."
See also: Onwurah & Ors vs. Nwumeh & Anor (2016) LPELR-40304 (CA) and Ajileye vs. Awe (2019) LPELR-47094 (CA).
In applying the law as stated afore to the instant case, it is not in dispute that the Appellant undoubtedly has sufficient interest in the issue at stake, to which he was also seised with both moral and social duty to intervene.
The letter being complained about was addressed and delivered to the IGP who is the chief law enforcer of the federation, and without doubt, had the legal duty to receive same and act thereupon with dispatch. Also, it is my view that the petition written, sometime in August, 2008, against the Appellant at the instance of the Respondent, which was not denied, could be a valid ground making the Appellant, to be so interested, both personally and on behalf of the kinsmen, id est; in the affairs at their homestead in Nnewi.
The Respondent reported an allegation of threat to his life, amongst others against the Appellant, this was in addition to the reported incessant arrests involving the Respondent and some Nnewi indigenes, both in Lagos and at Nnewi/Anambra State. Though the Respondent disagreed that the Appellant was the Traditional Prime Minister of Nnewi, as claimed, a claim admitted by CW2 at trial, the Respondent however, did not contend that the Appellant was the Grand Patron of the Nnewi Indigenes in Lagos State and that the Appellant had at various times intervened in the issue of arrests of some named Nnewi Indigenes by the Respondent in Lagos. This much was admitted by the Respondent’s witness, CW1, when he gave evidence under cross examination, at pages 189-192 of the Record thus “
“… I have known (both) the claimant and the defendant for over 20 years, … the defendant is from a royal family of the chief line. I do not know the claimant know the aforesaid fact. It is possible that the claimant is one of Nnewi Traditional Chief in Council (member). I now say he is a member of that council. I know the defendant has a traditional title in Nnewi, but I do not know that title. … I will not be surprised, if the title means traditional prime minister. … I hope the claimant knows that the defendant the is a traditional title bearer and (a) member of the Nnewi Traditional Council. I know that the role of members of the traditional council is to look after the well-being of people of Nnewi. I do not know if the defendant is the grand patron of the Nnewi indigenes in Lagos. I do not know the defendant as traditional prime minister since 1988 when I was 17 years old. I got to know the defendant for at least 21 years as a businessman, I know him as the prime minister and a businessman in Lagos. I have had no personal dealing with the defendant at all …”
The evidence of the Respondent’s witness which establishes both parties’ importance and roles in the traditional setting of their native home, in my humble opinion confers, the social and moral duty on the Appellant to bring to the notice of the traditional leaders of their community as done in the instance when the names of the 4 traditional leaders were endorsed on the face of Exhibit C1/D7. I am convinced too that the traditional leaders are equally with corresponding duty as their leaders to receive such ugly development, obviously with a view to nipping same in the bud. I find that there is reciprocity of duty and interests between the title holder of the traditional prime minister and the Igwe, vis-à-vis, the three Obis, to whom the exhibit was endorsed. I cannot, therefore, agree with the learned trial Judge when he found as follows:
There was no reciprocal interest in the publication of Exhibit C1 or D7. The publication, I find, given their ordinary and natural meaning, conveyed criminal imputation. See page 259 of the Record. I am convinced that there exist areas of common interest, to wit; to look after the well-being of people of Nnewi, between the Appellant, as the traditional prime minister of Nnewi, on one side, and the Igwe with the Obis of the segments of Nnewi, on the other.
It was not denied that the Respondent initiated a petition to the office of the IGP against the Appellant alleging that the Appellant had been involved in several killings. He admitted, at trial, that the Appellant was arrested and taken to police formation as a result of the said petition. Other cases which involved the other indigenes of Nnewi and the Respondent, in my view, will engender the requisite social and moral right and duty on the Appellant, as the traditional prime minister of Nnewi and the grand patron of the Nnewi people in Lagos state, the circumstance, to so act and be duly protected; while the traditional heads, the recipients of the information, have the reciprocal duty and interest to receive the nature of such information.
I find that the co-existence of the duty and interest between the Appellant, as the author of Exhibit C1/D7, and the traditional heads in Nnewi, as the recipients of the exhibit, is a privileged one, and therefore, displaces the presumption of malice in the publication of the contents of the said document by the Appellant.
In Atoyebi vs. Odudu (1990) 6 NWLR (Part 57) 384 at 399, the Apex Court restated the importance of the rule of reciprocity of interests thus;
“Reciprocity of interest is an essential element in the law of qualified privilege; that for the defence of qualified privilege to avail a defendant in an action for defamation, there must exist a common interest between the maker of the statement and the person to whom it was made”.
I hold the considered view that Exhibit C1/D7 was made and published by the Appellant to the office of the IGP and rightly copied to the offices of the Igwe of Nnewi; Obi of Uruagu; Obi of Umudim and the Obi of Nnewichi in the reasonable attention to his own affairs and that of his kinsmen, which gives him a legitimate cause to write of the conduct of the Respondent, who is another kinsman of his. I hold that the occasion displaces the presumption of malice. I am unable to see malice at play in the circumstance of the instant case.
The Respondent stated in paragraphs 5.12 and 5.13 of the Respondent’s Brief thus;
5.12
“Evidence abound on record that the letter of 1st September, 2008 (C1) was clearly malicious. It’s on record that at the inception of the complaint by middle point Nig. Ltd against Mr. Chigozie Okeke, the Appellant ordered the Respondent to withdraw the complaint against Mr. Chigozie Okeke which the Respondent refused.
5.13
The Appellant who claims to be the “god” of the Okeke’s and the Okafor felt slighted that his orders were not obeyed”
My lords, it is clear beyond peradventure, from the foregoing, that the Appellant was engrossed with efforts at resolving the incessant disputes involving the Respondent and other members of the same Nnewi communities, the facts that most of those involved were based in Lagos which makes the position of the Appellant relevant and duty bound to make effort at resolving same. Submission of the counsel for the Respondent to the effect that there was occasion of malice does not hold water, I hereby discountenance same.
I also find that the established fact that the traditional rulers were involved, by the Appellant’s endorsement of exhibit C1/D7, created a reciprocity of interest.
In view of the foregoing reasons and analysis, I entertain no doubt that the Appellant, in the circumstance of this case, is entitled to the defence of qualified privilege and I so hold. The second issue as reframed is accordingly resolved in favour of the Appellant.
I will now revert to the first reframed issue which borders on the place of publication of the content of exhibit C1/D7. The Appellant argued that the contents of exhibit C1/D7 was only published to the office of the IGP in Abuja, and not to his admin staff nor to the traditional rulers to which it was intended to be copied. The Respondent contended that the said publication was made in the three places, to wit; Lagos, Abuja and Nnewi.
The issue that calls for determination is whether the lower court had jurisdiction to so entertain the claim of the Respondent as it did.
The law is well settled that jurisdiction is a threshold issue and can be regarded as the livewire that determines the authority of a Court of law or Tribunal to entertain a case before it - NDIC vs. CBN & Anor (2002) 7 NWLR (Part 766) 273; Petrojessica Enterprises Ltd & Anor vs. Leventis Technical Co. Ltd (1992) 5 NWLR (Pt.244) 675. Where a Court proceeds to hear and determine a matter without the requisite jurisdiction, it amounts to an exercise in futility and the proceedings and judgment generated therefrom are null, void and of no effect no matter how well conducted. See: Orji vs. Chima & Ors (2023) LPELR-60345 (SC)
Having highlighted the essence of jurisdiction, it behoves me to look into the Statement of Claim of the Respondent as filed in the lower Court, as the law is trite that the claim of the Plaintiff determines the jurisdiction of the Court to entertain the suit. See: Adetayo & Ors vs. Ademola & Ors (2010) 15 NWLR (Pt\.1215) 169; Abia State Transport Corporation & Ors vs. Quorum Consortium Ltd (2009) 9 NWLR (Pt.1145) P.1; Salik vs. Idris & ors (2014) 15 NWLR (Pt.1429) 36.
From the statement of claim before the lower Court, it is clear that the Respondent was aggrieved with the publication of some words, as contained in exhibit C1/D7, which he regarded as defamatory. The Respondent, through his solicitors, Okon Uye, Esq., of God’s Will Chambers, demanded from the Appellant the retraction of the said libel and an apology, amongst other reliefs, failure of which the suit in the lower Court was filed. However, the grey area of the matter is whether the said libel was equally published in Lagos as to confer on the lower Court the requisite jurisdiction to entertain the matter.
The lower Court delivered its considered ruling on the application of the Appellant for an order striking out this suit for want of Jurisdiction by the Honourable Court to hear and determine same as presently constituted. In the ruling dated 24th February, 2014, copied at pages 228-239 of the Record, the learned trial Judge held that:
On the whole I find the application totally lacking in merit. There was Publication of the offending Statements made which the claimant wants the Court to pronounce upon in Lagos.
In resolving the issue of the jurisdiction of the lower Court to hear the instant case, I will be guided by the settled position of the law that in the determination of whether a Court is seised with the requisite jurisdiction to entertain a particular case, it is the claim of the Claimant; as endorsed in the Writ/Statement of Claim or any originating processes, as well as reliefs sought, that ought to be considered and nothing else. See Boothia Maritima Inc. vs. O.T. & T.A Ltd (2001) 8 N.W.L.R (Pt.716) 534 at 543 and Inakoju vs. Adeleke (2007) 4 N.W.L.R (Pt.1025) 423 S.C; Iboke vs. Chukwu & Ors (2023) LPELR-60104 (SC).
This court restated the law in Ashorobi v. Akinole & Ors (2019) LPELR-47506 (CA) (Pp. 25-27) per Tom Yakubu, JCA (of blessed memory), thus:
"The jurisdiction of the Court is determined by the cause of action of the plaintiff as endorsed on the writ of summons or from both the writ of summons and the statement of claim. …
These would be relied on if the facts placed before the Court as contained in the statement of claim or the affidavit in the case of originating summons are clear and unambiguous to enable it (to) determine the issue. This is because it is the plaintiff who invokes the constitutional right for a determination of his right and accordingly the exercise of the judicial powers of the Constitution vested in the Courts…”
The contention of the Appellant on this issue is that the content of the libelous document, Exhibit C1/D7, was not published in Lagos, but rather in Abuja and Nnewi in Anambra State. But the lower Court believed that there was publication of the letter in Lagos as well. It is clear from the Record that both parties in the appeal agreed that in an action for libel the proper venue for the adjudication of the matter is where the cause of action arose. See Dairo vs. UBN Plc (supra).
In libel, the law is well settled that publication of libelous material determines the jurisdiction of the Court. Mere production of libelous material without corresponding publication of the material, will not activate a cause of action in libel. Hence, in an action for libel, publication of the libelous material is the essential element of the cause of action. It is the publication, and not production, simplicita, of a libelous material that is the actionable wrong. This is so because, injury in libel will arise from the effect the libel produced upon reasonable audience of such publication. See: Dairo vs. Union Bank & Anor (supra); Emiator vs. Nigerian Army (1999) 12 NWLR (Pt.631) 362; People’s Voice Communication Ltd & Anor vs. Lawal & Anor (2004) LPELR-6036 (CA)
In the instant case on appeal, I have carefully scrutinized the Writ of Summons and the Statement of Claim that initiated the action in the lower Court with a view to determining whether the libel was indeed published in Lagos to robe the lower Court with the power to competently hear and determine the suit filed before it. I am unable to see where the Respondent or his witnesses alluded to the fact that the alleged defamatory words were published in Lagos. For the purpose of clarity, I find it necessary to extract some relevant portion of the originating processes filed to commence the suit by the Respondent. In paragraph 13 of the Statement of Claim, reproduced at pages 3-7 of the Record, it was averred thus;
13. The said letter was falsely and maliciously written and published concerning the Claimant to HRH Igwe Kenneth Orizu III, (the Igwe of Nnewi) and Grand Patron of Anambra Traditional Rulers (Council), the Obi of Uruagu, (Chief Nnamdi Obi), the Obi of Umudim (Chief Z.C Okafor) and the Obi of Nnewichi (Chief Onyekaba) all leaders of Nnewi Community
14. In the said letter, the Defendant and (sic) wrote and publish concerning the Claimant the following:
The said libelous words were thereafter reproduced in the subsequent paragraphs, but no mention was made of any other publication of the libel. Even, at the closing of the said Statement of Claim, one could deduce that the complaint of the Respondent, in the suit, centered around the publication in their local community in Nnewi, thus, in paragraphs 23 and 24, it was stated thus;
23. the Claimant states that words complained of have seriously disparaged him and prejudiced the discharge of his function at his village as he is now seen as a murderer and a cheat and people now avoid him.
24. by reason of those words, the Claimant suffered huge loss and damage.
In addition to the foregoing, the Respondent, in his statement on oath, filed in the lower Court and reproduced at pages 9-11 of the Record, repeated the same storyline, emphasizing in the following paragraphs, thus;
16. These words are making rounds in the Nnewi Community and beyond as the letters were read in the various council of Chiefs and communicated to members of the public.
He added during cross-examination, at pages 199-200 of the Record, thus;
“My assertion is that exhibit C1 defamed me. I see it as a letter circulated in Nnewi and copied to Igwe Nnewi … I would not know if it was taken to the IGP. I see exhibit C1 addressed to the IGP and copied to 3 Obis in Nnewi.” (Underlined for emphasis)
Other witnesses who testified for the Respondent at the lower Court maintained the same position, for instance, CW1, one Mr. Raphael Odunuwe, who resided in Lagos, testified at page 191 of the Record, thus; “C1 was being circulated in Nnewi. I got my copy there. A man on the street gave me my copy…”
This was apart from his earlier sworn witness statement at page 15 of the Record, where he stated at paragraph 9 thus;
“I also got another copy of the said letter from another friend, Mr Ernest Ofili in Lagos when I came back to Lagos. I know the letter has been widely circulated because the Defendant wants same to have a pre-determined negative effect on the Claimant”
In a similar vein, CW 3, one Mr. Godwin Eneghalu who lived in Nnewi, got a copy of C1 “from Obi of Umudim … a copy of exhibit C1 was photostated and given to Chairman of various villages by Obi of Umudim..”.
On his part, the CW2, one Wahab Sikiru, a member of staff of the Respondent’s company; Middle Point Nigeria Limited, Lagos, who lived in Lagos, testified to have gotten a copy of exhibit C1 from “a friend and a native of Nnewichi Community in Nnewi”. He stated that the friend copied the letter to him, adding that the unnamed friend,
“.. sent a copy of letter dated 1st September, 2008 to me in my office, located at Dolphin Estate, Ikoyi Lagos and advise me to leave my employment that the Claimant is a ritualist. I was very scared when I received the news. I know as of fact that the letter was widely circulated amongst friends and people from (of) Igbo extraction. …”
In the determination of the instant appeal, I deem it necessary to meticulously enumerate the evidence adduced before the lower Court in order to ensure that material evidence, is not lost from being properly evaluated. The lower Court, in my opinion, excluded in its judgment, the glaring evidence as related above. I find that the Respondent and his witnesses on Record clearly and unequivocally stated where the alleged libel was published to be in Nnewi and not Lagos as found by the lower Court. They were unanimous on this position.
On the evidence of CW1 who claimed that a friend of his, one Mr. Ernest Ofili, gave him another copy of the letter when he returned to Lagos, the missing link is that the said Mr. Ofili was not called in evidence at the trial to state how he came by the letter. I view this omission as fatal to the Respondent’s case. See Nsirim vs. Nsirim (supra).
While the Appellant was insisting that the letter was only published in the IGP’s office in Abuja, the Respondent, through all the relevant pleadings and evidence maintained that same was published in Nnewi.
It is plain, on the basis of the relevant Court’s processes, that the lower Court lacked jurisdiction to entertain the matter, as the publication of the alleged libel, which gives rise to a cause of action, was neither pleaded nor proved to have taken place in Lagos. See Dairo vs. UBN Plc (supra).
In libel, publication denotes the passing across of defamatory information to persons other than the person to whom it was written. See: Nsirim vs. Nsirim (supra). In the instant case, I find that publication could not be inferred as done by the lower Court, with respect to the personal staff of the Appellant. I hold that publication was not proved in the case of the Secretary and Personal Assistant of the Appellant. That the two named staff accompanied the Appellant to Abuja to submit the letter at the office of the IGP and also that they scrutinized Exhibits C1 and D7 after the commencement of the suit, would not, in my opinion, suffice as a publication.
It is important to note that, though the law recognizes that in the course of the production of the defamatory material, a form of publication of the libel may occur, the cause of action in the tort of libel remains that of where the libel is published, in the instant appeal, at Abuja and Nnewi. I agree with counsel for the Appellant that the contention of the Respondent that the libel was published in Lagos was an afterthought and was unsupported by pleadings and evidence on record.
It is apparent that the lower Court deliberately excluded relevant averments in the pleadings and testimonies of witnesses on record, in coming to the conclusion that it had jurisdiction to entertain the matter. I also find that the lower Court has deviated to consider extraneous facts of publication of the libel to the Appellant’s staff. Olorunfemi v. Asho (1999) 1 NWLR (Pt. 585) 1; Atanda v. Ajani & Ors (1989) 3 NWLR (Pt. 111) 511; Ezeafukwe v. John Holt Ltd (1996) 2 NWLR (Pt.432) 511 and A.G. Ekiti State & Ors v. Daramola & Ors (2003) 10 NWLR (Pt.827) 104.
I find the decision of the lower Court in this regard, perverse and capable of, and did in fact occasioned a miscarriage of justice to the Appellant. The perversity afforded this Court the power to interfere with the preserved duty of evaluation of evidence, which is the exclusive power of the lower Court as the Court of trial. See Musa vs. State (2019) LPELR- 46350 (SC); Jolayemi & Ors. vs. Alaoye & Anor. (2004) 12 NWLR (Pt.887) 322; Federal Republic of Nigeria vs. Iweka (2011) LPELR-9350 (SC); Nagogo vs. CPC & Ors. (2012) LPELR-15521 (SC).
The territorial jurisdiction of the High Court of Lagos State, in this instance, is clearly out of the way in terms of its competence to hear and determine a libel suit said to be published in either Abuja or Nnewi in Anambra State. I find that the lower Court lacks the jurisdiction to hear and determine the suit filed before it. This issue is resolved against the Respondent in favour of the Appellant.
In conclusion, I find it superfluous to consider the third issue in the Appellant’s brief, in relation to whether or not publication of the libel to the traditional rulers in Nnewi, Anambra State, was sufficiently proved. However, for purposes completeness, I shall briefly look into that issue, in the event the parties herein approaches the Apex Court. An intermediate Court, like ours, must pronounce on all issues submitted to it, one way or the other. That remains the law. See Marine Management Associates Inc. vs. NMA (2012) LPELR (20618) at 27.
The Appellant contended that Exhibit C1/D7 was only delivered to the IGP and was not published in the case of the 4 traditional rulers to whom the letter was endorsed. The Respondent, however, led evidence to show that copies of the said letter was delivered to the 4 traditional rulers, who let out the letter to the members of the communities, part of whom were the Respondent and 2 of his witnesses in the lower Court. Here, I shall adopt my views as expressed in the resolution of issue 1 supra.
In addition to the earlier opinion as expressed in this judgment, I find it apt to state further that publication in libel, means the making known of the defamatory matter to some person other than the person to whom it is written. The writing of a libel to the person or party libeled does not constitute publication for the purpose of a civil action. It is the reduction of the libelous matter to writing and its delivery to any person other than the person injuriously affected thereby that is publication. The name of the person to whom delivery of the libelous matter was made, must be pleaded. The Supreme Court in Nzirim vs Nzirim (supra), stated that;
"The cardinal principle of libel in law is that there must be publication of the libelous matter to a third person other than the person libeled, this is because a person's reputation is not based on the good opinion he has of himself but the estimation in which others hold him."
It must be reiterated that publication of defamatory material is not merely that the defamation was written of the Claimant, but that it was published or conveyed to a third person, who must be called to give such evidence of receiving same. See: The Registered Trustees of the Rosicrucian Order (ARMORC) Nigeria vs. Henry Awoniyi, supra; Okpanum vs. Odinamba & Ors (2017) LPELR-42678 (CA) (Pp. 9-10)
On the strength of the above, I find the failure or neglect of the Respondent to call any of the traditional rulers to give evidence, stating categorically that the Appellant delivered the libelous material to them, as fatal to his case. Evidence was adduced by the Respondent and CW1 & CW3 on how they came across the libelous material, either from Obi of Umudim or from a man on the street respectively. But it was conspicuous, the missing link of how the traditional leaders came about the material, calling them to give evidence would have filled the vacuum so created. Mere assertion of a fact without more, would not take the place of credible evidence of the fact asserted. The party making the assertion is duty-bound to proceed beyond ordinary assertion into proving same with evidence that would be accorded evidential weight. See: Minister, FCT vs. Centurion Defence Tech. Ltd (2023) LPELR-60990 (CA).
The only reasonable conclusion to arrive at is to resolve this issue in favour of the Appellant. Consequently, I resolve the third issue in the Appellant’s Brief in favour of the Appellant. In the result, I hold that this appeal is meritorious and deserves to be allowed, and I hereby allow it. The judgment of the lower Court in Suit No. LD/1452/2008, which found in favour of the Respondent herein, is hereby set aside.
I assess cost in the sum of N500,000.00 (Five Hundred Thousand Naira) and award same in favour of the Appellant against the Respondent.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
Ike Okafor for the Appellant.
Aderemi Adekile with Okon Oye & Olufemi Abidogun for the Respondent.
