➥ CASE SUMMARY OF:
M. Iloabachie, Esq. v Benedict N. Iloabachie (2005) – SC.137/2000
by Branham Chima (SAL).
➥ COURT:
Supreme Court – SC.137/2000
➥ JUDGEMENT DELIVERED ON:
Friday, 27 May, 2005
➥ THIS CASE IS AUTHORITY FOR:
⦿ FACTORS TO BE CONSIDERED FOR THE DEFENCE OF QUALIFIED PRIVILEGE
I believe that where a court is considering the defence of privilege whether qualified or not, there are some empirical factors that should be taken into consideration and these include the interest of any of the persons to whom the document was published, and the circumstances of the matter in question. If the person against whom the publication is made is a public officer, consideration should be given to the position he holds vis-à-vis the interest of the public or those to whom the alleged and or offensive publication was made to. Equally too, the court should consider the motive for the publication to examine whether it is actuated by purely altruistic principles or tendencies, or malicious and injurious motive. See James v. Baird (1916) S.C. 158 at 163. — Pats-Acholonu, JSC.
⦿ CHARACTER IS PUT IN ISSUE IN A TORT OF DEFAMATION SUIT
The tort of defamation, whether libel or slander, relates essentially to damages to the character of the person. In other words a plaintiff who institutes an action for libel has invariably put his character in issue. He is understood to be telling the whole world what a good person he is, and stating that some one is trying to destroy his enviable good name. He puts his reputation at stake depending of course on what the defamation is all about. In the course of consideration of the case but particularly as in this case where the appellant has shown through his pleadings what a person of great repute and of unblemished character he is, he has literally thrown his hat on the ring, caution to the wind, and dares the defamer to disprove his good and admirable character. Where in the process of the proceedings, facts elicited in the evidence portray him as an inveterate liar incapable of distinguishing truth from falsehood he might have unwittingly succeeded by his inconsistent statements and falsehoods destroyed his character which he has held out to the world to be clean. In such a case he cannot complain if the court finds out that he is a chronic, or penitus insitus liar. — Pats-Acholonu, JSC.
⦿ HOW THE TORT OF LIBEL IS COMMITTED
The tort of libel is committed through the publication of defamatory words in writing. It is a tort in which the writer or publisher attacks the reputation, integrity, standing and or fidelity of the victim of the publication. However, published words which are considered to be vulgar abuses, will not normally ground an action for libel or slander. What could be regarded as vulgar abuse would however depend on the exact words published, the status of the parties and the circumstances when the publication is made. For instance, abusive words uttered by low class people or motor park drivers and workers which are usually uttered as prelude to a fight, are usually regarded as vulgar abuses as they are normally never taken very seriously and could therefore not ground an action for either slander or libel. See Sketch Publishing Company Ltd. v. Ajagbemokeferi (1989) 1 NWLR (Pt. 100) 678; Nwachukwu v. Nnoremeke (1957) 2 E.R.L.R. 50; and Union Bank of Nigeria Ltd. v. Oredein (1992) 6 NWLR (Pt. 247) 355. — Akintan, JSC.
⦿ TRUTH OF A DEFAMATORY STATEMENT IS JUSTIFICATION
One of the defences available to a defendant in an action for libel is that of justification. It is therefore a complete defence to an action for libel or slander that the defamatory imputation is true. The truth of the imputation is an answer to the action because the law presumes that the plaintiff has no right to a character free from that imputation if he has no right to it. He cannot in justice recover damages for the loss of it. He is not entitled to benefit from the loss of a reputation he is not entitled to and as such the allegation in a defence that the words complained are true is therefore called a plea of justification. A defence of justification is therefore a complete bar to any relief sought by a party who complains of defamation. It is appropriately described in the Latin maxim: damnum absque injuria.” Until it is clearly established that an alleged libel is untrue, it will not be clear that any right at all has been infringed: See Registered Trustees of Amore v. Awoniyi (1991) 3 NWLR (Pt. 178) 245 at 257. — Akintan, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Pats-Acholonu, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
The appellant had instituted an action against the respondent for defamation for publishing a document which he complained had libelled him. The alleged libelous statements were said to have been published by the respondent sequel to a complaint by him that the appellant had committed certain ignoble acts in respect of the sale or purported sale of one Peter Iloabachie’s property by the appellant which land is situate at No. I Allen Lane, Onitsha. The statement claimed that the sale was fraudulently made without any authorization or consent of the respondent and that the act of the appellant by the sale bespeaks of unprofessional and unethical behaviour as the appellant, a mere grandson of late Peter Iloabachie was not the owner of the property which said property devolves on the whole family, i.e. the children of Peter Iloabachie. The appellant said that by the said publication; his name was tarnished and brought into odium and ridicule more so as he is a solicitor, an alumnus of prestigious University of Nigeria, Nsukka, and is married to a woman from a reputable family in Edo State. He stated that he is a member of Inwelle Age Grade, Ogidi, and happens to be the only solicitor from Ogidi appointed by their Igwe (King) to be a member of an arbitration panel in the area. The respondent replicando stated that the property purportedly sold belongs to his late father Peter Iloabachie and that during his lifetime no permanent building was erected there after the land was bought from Mgbelekeke family of Onitsha. It was his case that in 1963, the members of Peter Iloabachie family including the respondent contributed money to put the magnificent edifice that now adorned the place. He denied that the property belonged to Alfred Iloabachie i.e. the father of the appellant. The respondent stated that as the only surviving son of Peter Iloabachie and the head of that family, the publications he made in that capacity in respect of the sale were privileged and were addressed to the people to whom such letters should be written in the circumstances and denies any liability.
This is the publication – ‘Peter Iloabachie family of Ogidi have subsequently ordered Vincent to return the money to the purported buyer and restore the property to the family. Vincent has no mandate to sell the property. The purported “sale” was not authorised, it is as illegal as it is fraudulent because Vincent never consulted or discussed with any member of the family before his action. The purported “sale” is also very unprofessional and against the ethics of the legal profession because no honest and responsible lawyer will sell what is being held in trust for the family without consultation. The team of solicitors to the Peter Iloabachie family are already looking into these illegal, fraudulent, unprofessional and various other aspects of Vincent’s action, and appropriate measures would soon be taken in the appropriate fora to address the situation.’
In the High Court, the suit filed by the appellant was dismissed, and on appeal to the Court of Appeal his appeal was equally dismissed.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
I. Whether from the evidence led in this case, the defence of qualified privilege is available to the respondent herein having regard to the vital ingredient of reciprocity involved in the said defence and which the respondent failed to establish?
RULING: IN RESPONDENT’S FAVOUR.
A. THE RESPONDENT IS COVERED BY QUALIFED PRIVILEGE
[‘The appellant had at all times held out that he sold a property which he inherited and therefore he had no need to consult any one. The respondent had repudiated this and based his letter under probe to ex. S written to him by the appellant. He used some words which the appellant described as being libelous and held himself out to the world to being a person of impeccable character not used to ignoble ways. Is this really so. Can this seemingly pompous and self aggrandisement stand the test when shown in the mirror of character analysis. The learned trial Judge pointed out and indeed analytically showed all the falsehoods told by the appellant including false oath. The respondent’s description of him. as someone without consideration of the ethics of his profession cannot in my view be considered an overstatement seeing that the appellant’s skewed philosophical bent could be hinged on the Machiavellian philosophy that the “end justifies the means.” The respondent had libelled him as a forger and one lacking in ethics. I tend to believe that the worst mistake the appellant made was in instituting this action and putting his name in the mirror to be x-rayed. In his bid to show what a great person he is and who has been unjustifiably libelled, he cuts a very poor figure and succeeds in showing how unreliable he is and therefore really has not much of a character to protect. By this I do not mean that if a man is convicted of burglary or rape, a defamer should go scot-free by calling him a murderer or even an armed robber. In a case where a defendant feels genuinely affronted by an act of a relative in respect of disposing or alienating a property of which he the defendant strongly feels that as the head of the family, no such disposition could validly take place without his consent, and he upbraided the relation who purported to make the sale, it is his duty to inform those who ought to be told and I believe he may be exonerated by use of a language which fits the occasion having regard to the circumstances of that case.’
‘In order to destroy or neutralize the defence of privilege or qualified privilege, it is incumbent on the appellant to prove malice. From the facts of the case given in the letter ex. S written to the respondent, and the letters he the respondent wrote which he duly amplified in his pleadings and the evidence in court, can it really in all honesty and seriousness be contended and argued that he had no protectible interest. In other words, was the respondent not really actuated by moral consideration and what may be considered a dutiful effort to prevent the alienating of their property by someone who he claimed he was in loco parentis after his father’s death and who he helped financially during his schooling days. To my mind the people to whom the letters were written were those who ought to be informed about what was going on. It was essentially to alert them on what he considered a perfidious act of the appellant.’
‘I agree with the proposition, but one had to put himself in the frame of mind of the respondent who stated that on the death of this appellant’s father he became the head of the family. Being the head of the family and as he stated, one of those who contributed to the construction of the house at No. I Allen Lane, it would be assumed that he was angered by the sale. Besides, if the property was the one the appellant could dispose of as he liked why did he strive to inform the respondent. As I had held earlier, the respondent conceived that he had a protectible interest and in that vein he has a duty to himself at all times to do all things possible to stop or have the sale rescinded.’]
.
.
II. Whether the appellant filed reply to the respondent’s amended statement of defence alleging malice in order to meet the defence of qualified privilege pleaded by the respondent?
RULING: IN RESPONDENT’S FAVOUR.
A. APPELLANT DID NOT REPLY TO THE RESPONDENT’S DEFENCE OF QUALIFIED PRIVILEGE
[‘whether the appellant in this case filed a reply to the amended statement of defence of qualified privilege. He submitted that he filed a reply contrary to the holding of the court below and referred this court to the records. I have carefully read the paragraphs as contained in the record. It is a fact that the appellant filed a reply to the defence but the question to be determined is whether the reply is on the question of qualified privilege. I hereby set down paragraph 7 of that reply. “(7)(i) The defendant is not in the employ of the Anambra State Government and the Director-General, Ministry of Lands, Awka did not authorize the defendant to go ahead and start publicating the said letter. (ii) The defendant made sure that the nails in the coffin of the reputation of the plaintiff are properly fastened by clearly underlying the venomous parts of the said letter of 3/10/94 for clearer picture and ease of reference.” A careful examination of this paragraph seems to show that of all the paragraphs in the reply this seems to be the only one with a modicum of effort to reply to the defence of qualified privilege. A reply to a defence of qualified privilege should resonate with facts and particulars that show the malicious intention of the publisher of the statement. It is to say that implicit in such a publication would readily depict a mind poisoned or jaundiced by the prejudice and evil disposition bent on destructive calumny against the plaintiff. With greatest respect to the submission of the appellant’s counsel, the reply does not seem to me to wear this kind of garb. The communication to others was to my mind in order. For example it was the appellant in ex S who asked the respondent to communicate to Emeka. He cannot be heard to complain.’]
.
.
III. Whether from the respondent’s pleading and evidence, the defence of estoppel by conduct can avail the respondent?
RULING: IN RESPONDENT’S FAVOUR.
A. ESTOPPEL BY CONDUCT AVAILS THE RESPONDENT
[‘I have read ex. S. wherein the appellant informed the respondent that due to the nature of legal practice prevailing in Onitsha he was impecunious and had decided to sell his father’s property situate at No. I Allen Lane. He stated that he sold the house and paid Mgbelekeke family N200,000.00 (even though he denied it in court) and paid a commission of N100,000.00 to the agents. Equally too in that letter, he acknowledged the respondent as the head of the family when he said: “We have no other earthly father to run to, but you and we pray God to give you long life to enable you see your children’s children and also to enable you continue your laudable work to humanity … It is in the light of the above that I intend telling Emeka through you as the head of the family to tell the people occupying the main house to look for alternative accommodation” It cannot be denied that, pained or piqued by the contents of the letter, and incensed by the brazen effrontery to sell the property which the respondent felt belongs to the family, he reacted sharply. Surely the tone of the letter ex. “S” definitely invited a response. It was inevitable and the appellant should not quarrel about the reaction of the respondent. In my view estoppel by conduct should be read in the letter.’
‘This was not a case of pleading estoppel by conduct or not pleading it. Was not the defendant entitled to represent the plaintiff to outsiders as a liar when obviously that was what the plaintiff showed himself to be? Even if the defendant had not pleaded estoppel by conduct, the nature of the case before the trial court was such that the trial court and the court below had to ask themselves whether or not there was justification for the defendant to publish exhibits ‘C’ and ‘D’ of and concerning the plaintiff.’]
.
.
.
✓ DECISION:
‘A proper evaluation and appraisal of the appellant’s case does not portray him as a consistent person. In one breath he hailed the respondent highly and wished that God would give him good health and longevity and in another he lampooned and upbraided him as an evil man bent on destroying him. As Shakespare said in Macbeth; “Such welcome and unwelcome news at once. It is too hard to reconcile.” There is simply no merit in the case. Therefore I dismiss the appeal and affirm the judgment of the court below. As I have found out that the respondent is the head of the family per the ipse dixit of the appellant, and he took the respondent as a father, it is a family quarrel badly handled by an impetuous young man, I make no order as to costs.’
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
⦿
Sections 177 and 178 of the Torts Law, Cap. 135, Laws of Anambra State provide: “177. One who publishes a defamatory matter of or concerning another person is not liable therefor if (a) it is published on an occasion of qualified privilege; and (b) the privilege is not defeated by express or actual malice. 178. An occasion is one of qualified privilege where the person who makes a communication has an interest or 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.”
➥ REFERENCED (CASE)
⦿ WHEN IS AN OCCASION PRIVILEGED
✓ Pullman v. Hill Ltd. (1891) 1 QB. where Lord Esher, M. R. said: “An occasion is privileged when the person who makes the documentation has a moral duty to make it to the person to whom he does make it and the person who receives it has an interest in hearing it. Both these conditions must exist in order that the occasion may be privileged.”
✓ In Hunt v. Great Northern Railway. (1891) 2 Q.B. 189, Lord Esher, M. R. discussing the essence of the defence of qualified privilege said: “A privileged occasion arises if the communication is of such a nature that it could be fairly said that those who made it had an interest in making such a communication and those to whom it was made had a corresponding interest in having it made to them. When these two things co-exist, the occasion is a privileged one.”
➥ REFERENCED (OTHERS)
