M. Iloabachie, Esq. V Benedict N. Iloabachie (2005)

LAWGLOBAL HUB Lead Judgment Report

PATS-ACHOLONU, J.S.C.

The appellant had instituted an action against the respondent for defamation for publishing a document which he complained had libelled him. The alleged libellous 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.1 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.

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. Thereupon he filed another appeal to this court and from the grounds of appeal he distilled 4 (four) issues for determination, which are as follows:

3.01 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

3.02 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

3.03 Whether from the respondent’s pleading and evidence, the defence of estoppel by conduct can avail the respondent

3.04 Whether the judgments of the courts below are supportable having regard to the grossly deficient evidence of the respondent

Respondent framed only one issue which is:-

“Whether the Court of Appeal was justified in dismissing the appellants appeal then before it or was the judgment of the Court of Appeal right”

I must say straight away that the issues made out by the appellant appear woolly, overly generalized and do not reflect in the most succinct and discerning manner the main issues to be pointedly determined by the court. It is nebulous. Issues formulated should have the distinctive quality of clarity, precision and accuracy. That observation notwithstanding I shall now take the first issue.

The appellant’s counsel referred the court to the observations of the court below which run thus;

“The concurrence of the right and duty on the part of the writer and addressee of ex D is the basis of their common interest and is sufficient to sustain the defence of qualified privilege of the respondent … As regards the publication of the libel to Comrade Emeka Iloabachie the privilege which applies to the addresses of the two letters exs. “C & D also applies to him.”

The learned counsel for the appellant submitted that it must be a common interest between the maker of the statement and the person to whom it was made to sustain the defence of qualified privilege. He referred the court to Watt v.Longsdon (1930) 1 K.B. 130, White v. Stone Ltd. (1939) 2 K.B. 827 at 535 and Atoyebi v. Odudu (1990) 6 NWLR (PU57) 384; (1990) 10 S.C.NJ. 52 at 66. The kernel of the appellant’s case is that the respondent merely pleading that the addresses of the persons to whom the publications regarded as offensive to the appellant were interested in the outcome of the No. 1 Allen Lane, Onitsha, is not enough. He submitted that they must be called to show that they have interest in the matter. He contended that there was no evidence linking whatsoever interest the addresses of exh. C & D have with the land in question. (exh. C and D are the letters regarded as defamatory). I must hasten to add here and it must be pointed out that this court is not concerned with the dispute as to the ownership of No. 1 Allen Lane, Onitsha but with the alleged libelling of the appellant. This alleged libel arose from the perceived right whether convoluted or not of the respondent to publish and inform some people of the sale of the property said to belong to the whole family of Iloabachie.

The appellant is the son of Alfred the deceased first son of Peter Iloabachie. In the course of the proceedings in this case the appellant repudiated the assertion built in the case of the respondent that the publication of the alleged defamatory statements was in any case privileged in that the dissemination was made to people who should be made to be aware of the development in respect of No.1 Allen Lane, Onitsha. Let me delve in a short form into the nuances of the expression “privileged” and “qualified privilege”. In the case of Nigeria Television Authority v. Ebenezer Babatope (1996) 4 NWLR (Pt. 440) 75 at p. 6 Uwaifo, JCA (as he then was) said