M. Iloabachie V. Benedict N. Iloabachie (2000)

LawGlobal-Hub Lead Judgment Report

OLAGUNJU, J.C.A. 

This is an appeal against the judgment of Ogidi Judicial Division of the Anambra State High Court dismissing the consolidated actions by the appellant who as the plaintiff sued the respondent as the defendant for libel in two separate actions claiming in each action the sum of N5,000:00 as special and general damages and also praying for an order of injunction restraining the respondent from further publication of the defamatory words.

As the causes of action arose from the controversy over the disposition of the property in dispute according as whether it is personal to the appellant or it belongs to the parties’ family, it will ease an appreciation of the issues raised by the appeal to note the root of title to the land in dispute and give a bird’s eye view of the lineage of the family and a resume of the immediate facts that led to the institution of both actions.

It is common ground that No.1, Allen Lane, Onitsha, from the commentary on the sale of which the libelous statements were made was acquired at some remote past from the Mgbelekeke family of Onitsha by the late Peter Iloabachie, the father of the respondent and the paternal grandfather of the appellant, who built a mud-house on the land which was later replaced by a one storey building. The late Peter Iloabachie was survived by three sons and three daughters, namely, in order of seniority. A. C. Iloabachie, James Iloabachie, the respondent, Mrs. Beatrice Obianwuna, the eldest child. Mrs. Rose Okoye and Madam Veronica Iloabachie. Upon the death of Peter Iloabachie, he was succeeded as the head of the family by his eldest son, A.C. Iloabachie, in whom the property of Peter Iloabachie including No.1, Allen Lane, were vested. A.C. Iloabachie died on 29/10/85 survived by the two brothers and the three sisters, a widow and the appellant as the only child, though when the dispute between the appellant and the respondent arose, about September, 1994, the respondent was the only surviving son of Peter Iloabachie upon whom fell the mantle of the headship of the family of Peter Iloabachie.

In addition to the children prominent in the male line of the direct descendants of Peter Iloabachie, are the appellant and one Comrade Emeka Iloabachie who are the sons of A.C. Iloabachie and James Ilobachie, respectively. Featuring in the dispute is also Mrs. Beatrice Obianwuna, the eldest child of Peter Iloabachie, and her son Richard Obianwuna, who were living at No.1, Allen Lane, Onitsha. Both Peter Iloabachie and A.C. Iloabachie, the father and son who administered the property in dispute in succession, died intestate.

The Immediate cause of the dispute was the letter dated 3/9/94, Exhibit ‘S’ written by the appellant to the respondent. In the letter the appellant informed the respondent that he had sold, shortly before he wrote, the property of his father, No.1, Allen Lane, Onitsha, to one Mr. Edward Obi of Oba, a pharmacist who was living in the USA for #1,200,000. He narrated his difficulty in getting an attractive offer for the property owing to the fact that the property had no time document; the difficulty which he intimated that he overcame by entering into an agreement with the original vendor of the property, the Mgbelekeke family of Onitsha who sold the land to his grandfather, Peter Iloabachie, and who at a charge of #200,000 provided him with a document of title that enabled him to sell off the property. He gave his outlay on the sale arrangement as payment of #200,000 to the Mgbelekeke family and #100,000 as commission to the land agents and that he paid the balance of N900,000 out of the purchase price into ‘an account in the Union Bank.’

According to the respondent, he wrote back to the appellant informing him that the house he purportedly sold is the property of Peter Iloabachie family and not the property of his late father and, therefore advised the appellant to rescind the sale and restore the property to the family of Peter Iloabachie. Following the appellant’s failure to rescind the sale, the respondent, on 26/9/94s wrote a letter, Exhibit ‘C’, to the Head of Mgbelekeke family of Onitsha protesting the sale of the property by the appellant and requesting that family to cancel the agreement which the appellant said he made with them that enabled him to convey the property to the purchaser. On 3/10/94 the respondent also wrote another letter, Exhibit ‘D’, to the Director-General. ‘Ministry of Land’ (sic), Awka, praying that the Governor should not give his consent to the appellant to assign or mortgage or to grant Certificate of Occupancy over the property in question and that if consent had already been given in error it should be revoked. The writer’s reason for so praying is because the appellant “without the family consent, fraudulently, ‘sold’ it to one Mr. Obi of Oba about two months ago, with forged documentation.”

As it will be shown at the appropriate juncture wherever it may be necessary to highlight the import or drift of a particular expression the respondent in the two letters used variously the words ‘forgery’, ‘fraudulent’, ‘dishonest’, ‘illegally’, ‘unprofessional’ and ‘breach of trust’ to describe the appellant’s act and conduct in selling the house. Thus the appellant’s action for libel against the respondent stemmed from the use of those expressions which he maintained are heavily laden with criminal imputations against him.

Reacting to the two letters, the appellants filed two separate actions against the respondent in libel with two separate pleadings, i.e. statements of claim. Statements of defence and replies to the statements of defence. The suits were later consolidated and tried. Suit No. 0/361/95, later renumbered as HID/132/97, was in respect of the letter of 3/10/94, Exhibit ‘D’, written to the Director-General, ‘Ministry of Lands’ (sic), Awka, while Suit No. 0/362/95, later renumbered as HID/482/97, was in respect of the first letter dated 26/9/94, Exhibit ‘C’, written to the Head of Mgbelekeke Family of Onitsha: both suits were filed on 13/6/95. Except in matter of details the pleadings in both suits are similar. In both suits the plaintiff/appellant set out his claims against the defendant/respondent giving as appropriate the variants of the meaning of the defamatory words which were reproduced in paragraphs 21 and 22, respectively, of the statements of claim. The particulars of the appellant’s good character, integrity and general reputation as also the particulars of malice and publication of the defamation were set out.

The defendant/respondent denied the claims with necessary facts pleaded in the amended statements of defence in which he set up the defence of qualified privilege. The appellant riled a reply to each or the statements of defence in which he traversed a number of issues raised in the statement of defence but he did not file a reply alleging express malice and furnishing particulars of the facts from which ‘express malice’ can be inferred as a counteraction to the success of the defence of qualified privilege. But one peculiar feature of the respondent’s pleadings that gave rise to a serious misapprehension was the application for further amendment of the statements of defence filed on 28/11/97 but were withdrawn on 5/12/98 and struck out. Because of an oversight the shelved amendment incorporating the defence of justification was treated as part of the respondent’s case as if the amendment had been granted. A mistake that was reflected in the judgment in which the defence of justification was resolved unsolicited in favour of the respondent.

In any case, at the end of the trial the plaintiff/appellant’s case was dismissed. The learned trial Judge found that the two letters, Exhibits ‘C’ & ‘D’ were defamatory in their natural and ordinary meaning and that they were published of the appellant but the Judge held that the respondent had established the defences of justification and qualified privilege which excused the acts of the respondent and a complete answer to the appellant’s actions.

The appellant is challenging that decision and filed with the Notice of Appeal ten grounds of appeal from which he formulated in his Brief of Argument eleven issues, one issue from each of the first nine grounds and two issues from ground ten. The Respondent filed a Respondent’s Notice under sub-rule 14(2) of Order 3 of the Court of Appeal Rules 1981. Praying this Court to affirm the decision of the court below on grounds other than those relied upon by that court and formulated three issues. The eleven issues formulated by the appellant read:

“1. Whether the learned trial Judge was right in considering the defence of justification whereas the defendant neither pleaded the said defence nor gave particulars thereof.

2. Whether the learned trial Judge was right in holding that proper foundation was not laid for the tendering of Exhibit ‘C’ and ‘D’ whereas the said Exhibits ‘E’ and ‘D’ were certified by the Assistant Chief Registrar of the Onitsha Chief Magistrate’s Court, and the defence never raised any objection against the tendering of the said Exhibits.
3. Whether the words which the plaintiff complained of in Exhibits ‘C’ & ‘D’ as well as the publication to Comrade Emeka Iloabachie enjoyed qualified privilege from the circumstances of this case.
4. Whether the words which the plaintiff complained of in Exhibits ‘C’ & ‘D’ were mere epithets and not made maliciously.
5. Whether the learned trial Judge was right in holding that the inventory form (Exhibit ‘L’) used by the Administrator General/Public Trustee of Anambra State to manage No.1 Allen Lane, Onitsha was falsely sworn to by the plaintiff.
6. Whether from the circumstances of this case, the defence of estoppel could avail the defendant.
7. Whether the learned trial Judge was right in deciding the issue of title to No.1. Allen Lane, Onitsha in a libel case.
8. Whether the case of Exhibits ‘C’ and ‘D’ by Comrade Emeka Iloabachie in Suit No. MO/942/94: Edward N. Obi v. Richard Obiamwuna was privileged as per the Torts Law Cap. 135 Vol. 3 Laws of Anambra State of Nigeria 1986.
9. Whether the defendant joined issues and/or rebutted the evidence of the plaintiff with regard to evidence on special and general damages aspect of the case.
10. Whether the learned trial Judge’s holdings on the character and reputation of the plaintiff were supportable having regard to Law of Evidence relating to libel and slander cases.
11. Whether the Court’s judgment is against the weight of evidence led in the case.”

Those issues require a close scrutiny before a review of the arguments. To begin with, as I noted earlier, the appellant formulated eleven issues from ten grounds of appeal. That is improper as it is wrong to formulate more issues than the grounds of appeal filed. See Oyekan v. Akinrinwa (1996) 7 SCNJ 165, 172; See: also (1996) NWLR (Pt.459) 128; and for some of the implications of which See Onyioha v. Ayashe (1996) 2 NWLR (Pt. 432) 567; (1996) 2 NWLR (Pt.432) 567; and Paye v. Gaji (1996) 5 NWLR (Pt. 450) 589; (1996) 5 NWLR (Pt.450) 589. Therefore, I will disregard Issue Eleven which is a caricature of an omnibus ground of appeal provided as an issue.