Does The Defence Of Qualified Privilege Collapse When Malice Is Established?

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CASE TITLE:                         MOHAMMED ARGUNGU v. PROSPER IGBOELI

JUDGMENT DATE:           26TH MARCH, 2021

JUSTICES:                            OBANDE FESTUS OGBUINYA, JCA

JAMES SHEHU ABIRIYI, JCA

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA

DIVISION:                            ABUJA

PRACTICE AREA:               Tort

FACTS:

The Respondent, as Plaintiff at the High Court of the Federal Capital Territory, had by his Statement of Claim sued the Appellant, his former landlord, in respect of the property at No. 39 T.Y. Danjuma Street, Asokoro, FCT, seeking the following reliefs:

“1. A sum of N2,000,000,000.00 (Two Billion Naira) on the footing of aggravated and exemplary damages for the libellous letter of 3rd October 2012 addressed to the Medical and Dental Practitioners Investigative Panel by the Defendant against the Plaintiff which said letter has attracted embarrassment to the Plaintiff and negatively affected the public estimation of his person and qualification as a medical practitioner and reduced the level of patients’ patronage of his In-vitro- Fertilization (IVF) and Fertility Clinic.

2. AN ORDER directing Defendant to make and/or render public, clear, categorical and unequivocal retraction of said malicious and libellous letter.
3. AN ORDER directing Defendant to render and/or tender an unreserved apology in writing to Plaintiff for the said letter.
4. AN ORDER of perpetual injunction, restraining the Defendant, either by himself, his officers, agents, privies, servants or acting through any person or persons howsoever or by any means whatsoever from publishing or further writing, disseminating the said libellous publications/writings concerning or relating to the Plaintiff and his medical practice.
5. The cost of this suit, N1,000,000.00 (One Million Naira).
6. And for such FURTHER ORDER(S) that the Honourable Court may deem fit to grant in the circumstances of the case.”

The Appellant, by his Statement of Defence, denied the claim, raising the defences of justification and privileged communication. After the trial, the Court found the letter written by the Appellant to the Medical and Dental Council of Nigeria (MDCN), of and concerning the Respondent, to be defamatory. The trial Court rejected the defences of Justification and Qualified Privilege raised by the Appellant and awarded the sum of One Hundred Million Naira (N100,000,000.00) as damages against the Appellant, who was ordered to write a letter of retraction to MDCN and another to the Respondent. Dissatisfied, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION:

The Court determined the appeal on the following issues:

“1. Whether there was Publication of the alleged defamatory material having regard to the evidence led.

2. Whether the trial Court was right by holding that the Appellant was liable in damages for the publication of the alleged defamatory matter to the Medical and Dental Practitioners Disciplinary Committee.
3. Whether the paragraphs of the libellous Petition (Exhibit G1) relied on by the lower Court in making a finding of the tort of libel against the Appellant were pleaded and reproduced in the Respondent’s pleadings.
4. Whether the award of damages in the sum of One Hundred Million Naira (N100, 000.000:00) with post-judgment interest of 10% against the Appellant was wrong.
5. Whether the judgment of the trial Court is against the weight of evidence”.

DECISION/HELD:

In conclusion, the Court resolved all the issues for determination against the Appellant. The Court held that the appeal fails and was thereby dismissed.

RATIOS:

1. TORT – LIBEL: What constitutes publication of a libel

“The learned authors of GATLEY ON LIBEL AND SLANDER 9th Edition at Page 127, Paragraph 6.1, stated:

“No civil action can be maintained for libel or slander unless the words complained of have been published.

The material part of the cause of action in libel is not the writing, but the publication of the libel. In order to constitute publication, the matter must be published to (communicated to) a third party, that is to say, at least one person other than the Plaintiff.”

Underlining Mine

As also held by the Supreme Court in the case of Nsirim v Nsirim (1990) 3 NWLR Part 138 Page 285 at 297 Para H per Obaseki JSC:

“By publication is meant the making known of the defamatory matter to some persons other than the person of whom it is written… It is the reduction of libellous 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 libellous document was made must be pleaded”.

The same Court, per His Lordship, Ayoola JSC in Offoboche v Ogoja LG (2001) LPELR-2265(SC) at Pages 13-14 Para F-A held:

“The essence of libel is that the libellous material exists in permanent form. It is thus essentially continuous in existence. However, its publication is a different matter. What exists in a permanent form is not ‘published’ until it is made known”

Thus, the publication is simply the making known of the defamatory matter to some person other than the person of whom it is written.” Per ADEFOPE-OKOJIE, J.C.A.

2. TORT – QUALIFIED PRIVILEGE: Circumstance where a defendant will not be entitled to the defence of qualified privilege

“On whether the Appellant was entitled to rely on the plea of qualified privilege, the lower Court held:

“The Defendant had earlier written on same issues to the Police and EFCC but it appears the responses from these security agencies were not satisfactory to him, he decided to write Exhibit G1 to the Medical and Dental Council of Nigeria who has nothing to do with public interest. The Defendant wrote Exhibit G1 to MDCN with malice.”

It cited the case of Tsikata v Newspaper Publishing (1997) 1 All ER 655 where the Court observed:

“The defence of qualified privilege may be lost if the publication is misleading in the light of subsequent developments, as this may not be in the public interest or may be evidence of malice.”

The Supreme Court, in the case of Iloabachie V. Iloabachie (2005) LPELR-1492(SC) held, per Pats-Acholonu JSC, at Page 17 Para A-C:

“A privileged occasion arises if the communication is of such a nature that it could be fairly said that those who made it had an interest in making a communication and those to whom it was made had a corresponding interest in having it made to them. Where those two co-exist the occasion is privileged.

…In order to destroy or neutralize the defence of privilege or qualified privilege, it is incumbent on the appellant to prove malice.”

It was further held in the same case by the same respected Jurist, as follows:

“Consider too the case of Pullman v. Hill Ltd. (1891) 1 QB. Where Lord Esher, M. R. said:-

“…Equally too, the Court should consider the motive for the publication to examine whether it is actuated by purely altruistic principles or tendencies, or malicious and injurious motive.”

In Onah v Schlumberger (Nig.) Ltd. (2018) 17 NWLR Part 1647 Page 84 at 102 Para A-C, the same Court held, per Rhodes-Vivour JSC, reading the lead judgment, as follows:

“The defence of qualified privilege is available when there is a common interest between the maker of a defamatory statement and the person to whom it is made. There must be a reciprocity of interest….The Court must consider the motive for the publication, to be satisfied that the maker of the defamatory statement was not actuated by malice. The defence of qualified privilege collapses when malice is established, and the onus is on the Plaintiff to satisfy the Court that the publication was actuated by malice. The truth or falsity of the libellous matter is irrelevant when considering the defence of qualified privilege.”

It was similarly held, in the case of Mainstreet Bank v Binna (2016) 2 SCNJ Page 422 at 442 lines 8-20, per Kekere-Ekun JSC, similarly reading the lead judgment and adopting the dictum in Chief S.B. Bakare v Alhaji Ado Ibrahim (1973) 6 SC 147 at 152-153 where it was held:

“If the publication is shown to be false, malice is inferred by operation of law, it is enough to show that the words complained are completely false…Where defamatory words are published without lawful excuse, the law conclusively presumes that the Defendant is motivated by what is often described as malice in law, accordingly, the Plaintiff is usually not required to give particulars of the facts on which he seeks to rely in support of the allegation that the words were published ‘maliciously’ “.

In the instant case, it is not in doubt that the Medical and Dental Council of Nigeria is a body that has an interest in receiving complaints against members of its body. The twin question, however, has also to be answered in favour of the Appellant and that is whether the Appellant had a moral duty to make the complaint to the Council and whether the letter was actuated by purely altruistic principles or from a malicious and injurious motive.

As observed by the lower Court, the Appellant had written similar letters to both the Police and the EFCC, the former of which had absolved the Respondent of any wrongdoing. Not satisfied, it again wrote to the Medical and Dental Council, making the same allegations. It is instructive to note that the letter to the Council was written well after the Respondent had vacated the premises and was demanding for a refund of his rent, and was after the Respondent had instituted an action against both the Appellant and his agent.

Exhibit G1 was clearly not written for any altruistic motive but was a venomous vendetta against the Respondent, for no apparent reason except to destroy the Respondent’s career as a doctor or possibly an attempt to stall or stop the Respondent from collecting a refund of his rent paid to his agent.

The defence of qualified privilege has been proved by the Respondent as actuated by malice and thus “collapses”, I hold.” Per ADEFOPE-OKOJIE, J.C.A.

3. TORT – LIBEL: Whether words alleged to be libellous must be specifically pleaded

“It is well settled that a Plaintiff in an action for libel must set out in his Statement of Claim the exact words complained of to be defamatory of his person.

In the oft-cited authority of Okafor v Ikeanyi (1979) 3-11 SC Page 65 at 68 Lines 4-15 per M. Bello JSC (as he then was), it was held as follows:

“It has always been the law in England that in an action of libel the precise words of the document are material within the meaning of the rule regulating the content of pleading in that country and it has always been the practice to set out verbatim the words complained of in the statement of claim ….. In a recent case, the Court of Appeal in England has stated that where libel arises out of a long article in a newspaper, the Plaintiff must set forth in his Statement of Claim the particular passages which he complains of and if he complains of the whole publication, then the whole publication must be set forth in the Statement of Claim”

It was also held in Onyejike V. Anyasor (1992) NWLR Part 218 Page 437 at 450 Para Para E-F, per Katsina-Alu, JCA (as he then was), that:

“In a libel action, the words complained of must be pleaded. The words used are the material facts and they must therefore be set out in the Plaintiff’s pleadings to enable the Court determine whether they constitute a ground of action. The law requires him to set out the words in his pleadings with reasonable certainty … However, if the action is in respect of certain libellous passages in a letter, the Plaintiff is not required to set out the whole letter, it is sufficient to set out the passages complained of only provided their meaning is clear.” Per ADEFOPE-OKOJIE, J.C.A. 

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