Cletus Uwadiegwu Ogbonnaya & Anor V. Eze R. U. Mbalewe (2004)

LawGlobal-Hub Lead Judgment Report

KUMAI BAYANG AKAAHS, J.C.A.

This appeal is against the decision of the High Court of Imo State, presided over by Hon. Justice Ogu-Ogoagwu in suit No. HOW/352/86, which was delivered on 19/3/91. The subject matter of the proceedings in the court below is alleged libel published in the 15th August, 1986, issue of the Imo Community Concord which is a weekly newspaper.

The plaintiff now respondent in the appeal is the traditional ruler of Uvuru Autonomous Community in Aboh Mbaise Local Government Area of Imo State and goes by the title of Eze Oha 1 of Uvuru Ikedinairi. Before his ascension to the throne as a traditional ruler of Uvuru Autonomous Community, he worked with the SCOA (Nigeria) Limited for 37 years where he rose to become the General Manager iles Division before retiring in 1982. He participated in Community Service by being a member of the Uvuru Development Union (U.D.U.). He also served as the Chairman Mbaise Traditional Rulers Conference from January, 1985, to February, 1990.

He was a member of the Imo State Council of Chiefs. He holds the chairmanship of the following companies namely:
(1) Everlast Industries (Nig.) Limited;
(2) International Management System Limited;
(3) M. K. Engineering Ltd.; and
(4) Rumba (Nig.) Limited.

Originally, there were three (3) defendants in the suit. The 1st defendant, one of the subjects of the plaintiff/ respondent is a well known public figure in Owerri, Imo State. The 2nd and 3rd defendants are the editor and publisher respectively of the Imo Community Concord.

The plaintiff sued the defendants both jointly and severally claiming damages for libel because they published an article concerning the plaintiff by way of his office as a traditional ruler in an article in the Imo Community Concord Edition of 15th day of August, 1986, bearing the caption: “Uvuru Community Demands Eze’s Removal”. At the hearing, the 1st defendant who testified as DW3 tendered an unreserved apology to the plaintiff which the latter accepted. Thereupon plaintiff’s counsel applied to withdraw the claim against the 1st defendant and the claim against him was struck out. The plaintiff proceeded against the 2nd and 3rd defendants and obtained judgment against them and was awarded N450,000.00 as damages. It is against this judgment that the remaining defendants decided to appeal.

The original notice of appeal contained two grounds on which the appellants’ brief dated 26/11/99, raising a single issue for determination was based. A motion which was brought seeking leave to argue additional grounds of appeal was granted on 15/3/2004, but the appellants’ brief was not amended. The arguments in the respondent’s brief asking this court to strike out paragraphs 4.02 and 4.03 of the appellants’ brief since no complaint was made either in the original grounds or in the issue framed raised any argument on pleading express malice as a rebuttal to a plea of qualified privilege and fair comment must have been responsible for the filing of the additional grounds of appeal. The issue formulated in the appellants’ brief is:
“Whether the learned trial Judge rightly held the appellants liable for libel in the circumstances of this case?”

The respondent also filed his brief of argument raising two issues, namely:
“(1) In the conduct of the proceedings did the Judge accord the appellants fair hearing?
(2) Is the liability of the defendants in the suit joint or several or are they joint tortfeasors?”

The appellants argued that there was a denial of fair hearing by the learned trial Judge when he failed to evaluate the evidence of DW1 and DW2 and also his refusal to allow the appellants a reasonable time or ample opportunity to present their defence as compared with the respondent who was indulged in every latitude.

Learned Counsel contended that the appellants raised a defence of qualified privilege and fair comment in their pleadings, but the respondent failed to reply and plead any particulars of malice against the appellants. This failure he submitted is fatal to the respondent’s case and relied on the following cases for the submission: Lardner Sketch Publishing Co. Ltd. (1979) 3 LRN 77; Daily Times Nigeria Ltd. v. F.R.A. Williams (1986) 4 NWLR (Pt. 36) 526; S. B. Bakare & Anor. v. Alhaji Ado Ibrahim (1973) 6 SC 205.

It is learned Counsel’s contention that as registered newspaper publishers, the appellants have a duty to inform the general public of events which occur in the society on matters of public interest in the absence of any malice on their part and it was not disputed that a public demonstration took place which the appellants merely reported.

As the respondent pleaded and maintained in evidence that the 1st defendant at the trial was the prime mover of the demonstration and publication of his discharge after DW1 and DW2 had testified confirming that the demonstration (which the appellants covered and reported) actually took place, their liability must therefore flow from the liability of the 1st defendant as their report was factual. Although, the 1st defendant apologised to the respondent, he did not admit on any occasion that the words published were false and so the issue for determination is whether the event they reported, i.e. demonstration occurred or not.

This the trial court never found as a fact that it did not occur and this occasioned a miscarriage of justice. He maintained that the discharge of the 1st defendant should imply a discharge of the appellants since the respondents’ witnesses testified that the publication did not change their regard towards the respondent and urged the court to allow the appeal and set aside the judgment and either dismiss the plaintiff’s claim or order a trial de novo.

In his reply, learned Counsel for the respondent argued that in the particulars of claim, the plaintiff’s claim is said to be jointly and severally and that it is trite law that a claim against several defendants may be made jointly and severally or in the alternative. It is his contention that the appellants have no-where demonstrated that as joint tortfeasors, the withdrawal of the claim against the 1st defendant would automatically lead to the abatement of the claims against the other defendants. The attention of this court was drawn to the amended statement of claim, which incorporated particulars of “express malice”.