Chilkied Security Services And Dog Farms Limited V. Schlumberger Nigeria Limited & Anor (2018)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Port Harcourt Division delivered on 13/4/2006 setting aside the judgment of the High Court of Rivers State sitting at Port Harcourt delivered on 28/11/97.

The appellant herein, a limited liability company, instituted an action before the High Court of Rivers State, seeking N10 million damages for libel and an order of injunction against the respondents. The appellant is a security company engaged by the 1st respondent to provide security guards for its various properties, including its office and warehouse, residential estate and youth corpers’ residence at different locations within Port Harcourt. As a result of incessant complaints of stealing and breaking into apartments in the staff quarters at the residential estate, its contract was terminated. It was the appellant’s contention at the trial Court that the respondents by their letter dated 2/3/92 titled “Threats from the manager of Chilkied Security Services,” published libel against it to the following persons:

1

(i) the Commissioner of Police Rivers State, Mr.O.O. Onogie,

(ii) the Police,

(iii) the Chief Security Officer at the University of Science and Technology, Port Harcourt, and

(iv) the general public.

It was its further contention that the publication was actuated by malice and for the purpose of discrediting and ruining its business. The appellant also claimed that as a result of the libel, it had lost the custom of 21 companies, whose names were pleaded in paragraph 20 of its Amended Statement of Claim. The respondents filed an Amended statement of Defence wherein they raised the defences of qualified privilege and justification. At the trial, the appellant called three witnesses while the respondents called two witnesses in their defence. Documentary evidence was also tendered and relied upon. At the conclusion of the trial, the learned trial Judge entered judgment in the appellant’s favour. He awarded the sum of N3,500,000.00 as general damages for libel and granted the order of injunction. The respondents were dissatisfied with the judgment and appealed to the lower Court.

2

In a considered judgment delivered on 13/4/2006, the appeal was allowed and the judgment of the trial Court was set aside.

The appellant is aggrieved by the decision and has appealed to this Court via a Notice of Appeal filed on 12/7/2006 containing four grounds of appeal. At the hearing of the appeal on 29/1/2018, OSAHON IHENYEN ESQ. adopted and relied on the appellant’s brief, which was deemed filed on 27/2/2008, in urging the Court to allow the appeal and restore the judgment of the trial Court. S.A. SOMIARI ESQ., leading I.L. OKOYE ESQ, adopted and relied on the respondents’ brief deemed filed on 29/1/18 in urging the Court to dismiss the appeal. Learned counsel for the appellant formulated four issues for determination as follows:

1. Whether the Justices of the Court of Appeal properly considered the effect of malice on the defence of qualified privilege as raised by the respondents even where there is reciprocity of interest between the writer and the receiver.
2. Whether the Justices of the Court of Appeal were right or wrong in their evaluation of the facts when they held that the trial Court failed to consider the truth of the information.

3

Whether the Justices of the Court of Appeal erred in law when they held that the appellants case failed because the situation in which the words were published were privileged without applying the legal effect of malice as pleaded by the appellant.

4. Whether the Justices of the Court of Appeal properly evaluated the facts when they held that the effect of the words on third parties was not brought to the fore at the hearing.Learned counsel for the respondents adopted the issues formulated by the appellant. Learned counsel for the appellant argued Issues 1 and 3 together, while learned counsel for the respondents argued them separately as Issues 1 and 2. Since Issues 1 and 3 are two sides of the same coin, I shall adopt the appellant’s method and consider them together.

ISSUES 1 & 3

Whether the Justices of the Court of Appeal properly considered the effed of malice on the defence of qualified privilege as raised by the respondents even where there is reciprocity of interest between the writer and the receiver.

Whether the Justices of the Court of Appeal erred in law when they held that the appellants case failed because the situation in which the words were published were privileged

4

without applying the legal effect of malice as pleaded by the appellant.

Before delving into the submissions of learned counsel, I deem it appropriate at this stage to reproduce paragraph 5 of the Amended Statement of Claim wherein the alleged libel was pleaded:

“5. On or about the 2nd day of March 1992, the 1st defendant through the 2nd defendant falsely and maliciously wrote and published or caused to be written and published in a type-written letter signed by the said 2nd defendant to the Commissioner of Police, Rivers State Command, Mr. O.O. Onege of and concerning the plaintiff the following: –

Our Ref. No. 92/SNL/PM/II/087

02/03/92

The Commissioner of Police

Rivers State Police Command,

Port Harcourt.

Attn: O.O. Onege

Dear Sir,

SUBJECT: THREAT FROM THE MANAGER OF CHILKIED SECUTIRY SERVICES

I am bringing forward to your office and your direct notice various incidents which demand your immediate attention.

Before the removal of Chilkied Security Services from the Schlumberger residential camp at Rumuogba, the Manager of Chilkied Security Services went to the residential camp

5

supervised by Mr. Guy whom he (Manager of Chilkied) now told to relay to me the following:

1. That himself (the Chilkied Service Manager) would organize for Messrs GUY, LETARTRE AND MANQUET to be shot.
2. Iterated that he had armed robbers on his monthly payroll and that he was well able to employ their services to do the above job.
3. The Manager of Chilkied Security Services further went ahead to inform one of the expatriates, Mr. J. Bedford that he would set fire to hall (sic) the residential camp.

Notwithstanding the above threats, we have effected his removal. We wish to bring the above to your notice, Sir, in order that you may assist in ensuring both the safety of lives and property by taking whatever actions you deem fit, to avoid any unpleasant incident.

Yours faithfully;

SCHLUMBERGER (NIG) Ltd.

P. MAQUET

East Nigeria District Manager.”

The said letter was admitted in evidence at the trial and marked Exhibit B. Learned counsel for the appellant referred to the case of Edem vs. Orpheo Nig. Ltd. (2003) 13 NWLR (pt. 838) 537 @ 558 C-D, where it was held that

6

“a defamatory imputation consists of publication to a third person or persons of words or matter which tend to lower the person defamed in the estimation of right thinking members of the society generally …. or to injure his reputation in his office, trade or profession or to injure his financial credit.” He submitted that the word “person” in this con under Nigerian Law admits of and includes artificial persons such as a corporation sole, a company, or any body of persons corporate or incorporate. He argued that in the circumstance, the appellant, a limited liability company, is capable of being defamed and was indeed defamed by Exhibit B. He relied on the dictum of Ayoola, JSC in Offoboche Vs. Ogoja Local Government (2001) 16 NWLR (Pt. 739) 458 @ 485 A – D. He argued that to publish words to the effect that a security company has armed robbers on its payroll is defamatory and injurious to the company’s reputation in its office, trade and profession.

He submitted that it is not necessary for a plaintiff to prove publication where the publication has been admitted, and that what the plaintiff is required to establish is the reaction of a third party to the publication.

7

He cited the case of Iwueke Vs Imo Broadcasting Corporation (2005) 17 NWLR (Pt. 955) 447 @ 482 – 483 G – A & 483 E – F. He submitted that in the instant case the publication of Exhibit B is not in doubt, as there was evidence before the trial Court to show that not only did the Police receive it, it also acted upon it. He submitted that the publication of Exhibit B is actionable per se, without further ado. He relied on Clerk and Lindsell on Torts, 14th edition at page 945. He argued that a defence of qualified privilege will be defeated where it is shown that the publication was actuated by malice. He referred to: Emeagwara Vs Star Publication Co. Ltd. (2000) 10 NWLR (Pt. 676) 489 @ 515 F – G. He noted that the Police investigated the respondents’ complaints and found them to be unfounded and advised the respondents to tender an apology to the appellant. He submitted that a letter was also written by its solicitors demanding an apology but the respondents remained adamant and refused to comply.

8

Learned counsel submitted that the learned trial Judge was right when he held that the respondents’ plea of qualified privilege could not be sustained, having regard to the outcome of the Police investigation, which found that their allegations were unfounded. He submitted that the finding of the learned trial Judge was borne out of a proper assessment of the witnesses and evaluation of evidence, which is the primary function of a trial Court. He posited that the trial Court having correctly carried out its duty, what the lower appellate Court was required to do was to ascertain whether there was evidence on the record which supports the conclusion reached. He submitted that once there is sufficient evidence, the appellate Court was not at liberty to interfere. He relied on: Ezekwesili vs. Agbapuonwu (2003) 9 NWLR (pt. 825) 337 @ 380 – 381 G-E; Iwuoha vs. NIPOST (2003) 8 NWLR (pt. 822) 308 @ 344 C-D.

Learned counsel relied on the definitions of various forms of malice contained in Black’s Law Dictionary, 6th edition at page 957 and submitted that the respondents’ conduct has shown that the libelous statements were actuated by “particular malice” i.e. malice directed against a particular individual.

9

He submitted that three elements are necessary in order to establish a defence of qualified privilege, to wit: the occasion must be fit; the matter must have reference to the occasion; and it must be published from right and honest motive. He referred to Clerk and Lindsell (op. cit.) at page 998 paragraph 1739. He submitted that the conduct of the respondents, as depicted in the evidence before the trial Court, woefully failed to meet the criteria for the defence. He submitted that the respondents’ failure to impeach the appellant’s testimony regarding malice is fatal, as the evidence is deemed admitted.

Learned counsel for the respondent, in opposition, submitted that once the defence of qualified privilege is raised and proved, it is a complete defence to an action for defamation. He submitted that for the defence to be made out, there must be a reciprocity of interest between the writer and the receiver. While conceding that the evaluation of evidence and ascription of probative value thereto is the exclusive preserve of the trial Court, he submitted that an appellate Court would interfere with the findings of a trial Court where the findings are perverse. He relied on: Ayeni vs. Adesina (2007) ALL FWLR (Pt. 370) 1451, wherein the special circumstances that would render a finding perverse, were spelt out.

10

Learned counsel submitted that in considering the allegation of malice pleaded by the appellant, the learned trial Judge relied solely on the Police report without ascertaining the truth of the allegation in Exhibit B. In other words, the trial Court failed to consider whether or not the threats alleged in Exhibit B were in fact made. He noted that in leading evidence on the alleged malice, PW1, the Managing Director of the appellant, testified that the appellant was commissioned by its employer, Dowell Schlumberger, to advise it on the security problems of Rumuogba camp and to recommend permanent solutions. The recommendations were contained in a document, which was admitted in evidence as Exhibit H. He noted that it was the appellant’s contention that the 2nd respondent was not pleased with the recommendations, and therefore Exhibit H was one of the reasons for the malice. He submitted that in resolving the issue of malice, the learned trial Judge relied on Exhibit H, which was not addressed to any of the respondents nor was there any evidence that the document came into their possession.

11

He referred to the evidence of DW1 to the effect that there are several companies under the Schlumberger group, which are limited liability companies and independent of each other and that Dowell Schlumberger, which purportedly commissioned the appellant to assess the existing security arrangements and make recommendations, is not the same company as the 1st respondent. He noted that under cross examination, DW2, to whom the threat referred to in Exhibit B was allegedly made, stated that he was not aware of the recommendation made in Exhibit H to the effect that he and one Mr. Letartre should be removed. He noted that DW2 further testified that Mr. Letartre was not an employee of the 1st respondent. He submitted that the learned trial Judge totally misconceived the law relating to defamation in this case.

He submitted that there was no evidence to show that the 2nd defendant and DW2 had any axe to grind with the appellant nor was there any evidence of any ill feelings between the 2nd defendant and PW1. He contended further that it was the duty of the Court to determine whether or not the statement in Exhibit B was made. He was of the view, in the circumstances, that the learned trial Judge did not make

12

proper use of the opportunity of seeing and hearing the witnesses testify in reaching the conclusion that malice had been proved and the lower Court therefore rightly intervened.

He submitted that once the respondents had raised the defence of qualified privilege, the onus was on the appellant to rebut the presumption, which it failed to do. He referred to: Iloabachie Vs. Phillips (2000) 14 NWLR (PT. 686) 43 @ 57. He argued further that it is not the duty of DW1 or DW2 to discover the truth of the alleged threat contained in Exhibit B, as DW2 had consistently maintained even under cross examination that PW1 made the statements. He submitted that it was the duty of the learned trial Judge who had the benefit of seeing and hearing the witnesses testify and of observing their demeanour to determine the truth.

On the requirement of a corresponding interest where the defence of qualified privilege is raised, he submitted that there need not be a special relationship between the defendant and the person to whom the communication was made, but there must be an interest in the party to whom the communication was made as well as in the party making it.

13

He relied on: Mamman vs. Salaudeen (2006) ALL FWLR (PT. 298) 1169. He noted that in the instant case, the 2nd respondent who wrote Exhibit B is the head of administration of the 1st respondent and he wrote it in that capacity, strictly for the attention of the Commissioner of Police. He argued that Exhibit B was written under a sense of duty and without malice towards PW1 or the appellant, in the honest belief that the facts stated therein were true and in order to seek protection. He submitted that the Commissioner of Police has a legal and moral duty to receive such complaints and the respondents also have a corresponding duty to make such complaints.

On what constitutes qualified privilege, he referred to the case of: Kanu Vs. Oparaocha (2005) ALL FWLR (Pt. 309) 1499. He noted that in Exhibit B, it is not stated that the appellant is an armed robber or that it has armed robbers on its payroll but rather that PW1 allegedly made such a claim. He maintained that the 2nd respondent had an honest motive in reporting the threat to the Police.

14

He submitted that the defence of qualified privilege was properly made out by the respondents and the Court below rightly found in their favour.

Defamation, as a tort, whether as libel or slander, has been judicially defined to consist of the publication to a third person or persons of any words or matter which tend to lower the person defamed in the estimation of right thinking members of society generally or to cut him off from society or to expose him to hatred, contempt, opprobrium or ridicule or to injure his reputation in his office, trade or profession or to injure his financial credit. See: NITEL Vs. Tugbiyele (2005) ALL FWLR (PT. 246) 357; Edem vs. Orpheo Nig. Ltd. (2003) 7 SC 92 @ 101. Every person has a right to the protection of his good name, reputation and the estimation in which he stands in the society. Therefore, whoever publishes anything injurious to that good name or reputation commits the tort of libel. Slander consists of a false and defamatory statement (of a transient nature) made or conveyed by spoken words, looks, signs and gestures or in some other non-permanent form. Libel, on the other hand is required to be in some permanent form.

15

To be defamatory, the libel or slander must have been published of and concerning the plaintiff, to a person other than the plaintiff, without lawful justification or excuse. See: Egbe Vs. Adefarasin (1987) 1 NSCC (vol. 18) 1; Oruwari vs. Osler (2013) 5 NWLR (pt. 1348) 535; Ekong vs. Otop & Ors. (2014) 5-6 SC (pt. 1) 33 @ 55. The test of whether a statement is defamatory or not consider what the meaning of the words would convey to an ordinary person. See: Okolo Vs. Mid-West Newspaper Corp. (1977) NSCC 11; Dumbo vs. Idugboe (1983) 1 SCNLR 29; Agbanelo vs. Union Bank of Nig. Ltd. (2000) 7 NWLR (Pt.566) 534. The onus is on the plaintiff to prove that the words conveyed an extraordinary meaning to those to whom they were published. See: The Sketch Publishing Co. Ltd. Vs. Ajagbemokeferi (1989) 1 NWLR (pt.100) 678; (1989) 2 SC (Pt. II) 73; Agbanelo Vs. Union Bank of Nig. Ltd. (supra); Ekong Vs. Otop (supra).

It is noteworthy that the appellant in this appeal is a limited liability company. Can a limited liability company sue for defamation The answer is in the affirmative. In Oduntan Vs. General Oil Ltd. (1995) LPELR-2249 (SC) 1 @ 14 A – B; (1995) 4 NWLR (Pt. 387) 1 @ 14 C – D. this Court held thus:

16

“A company can sue for defamation. It has reputation and goodwill which can be protected. An injury to its reputation can lead to loss of its goodwill. The Courts will, in appropriate cases, protect the reputation and goodwill of a company by award of damages and injunction. While it is true that a company, being an artificial person, is incapable of having natural grief and distress, this does not mean the same thing as its reputation in the way of its trade and business.”

See also: Edem Vs Orpheo Nig. Ltd. (supra) @ 102 – 103.

In an action for defamation, there is no need to prove malice. Malice is implied from the mere publication of the defamatory matter. One of the exceptions is where the publication was made on a privileged occasion i.e. a defence of qualified privilege is a complete defence to an action for defamation. In the case of NTA Vs. Babatope (1996) 4 NWLR (Pt. 440) 75 @ 96 F – G, it was held that qualified privilege is a defence to an untrue publication, which can only be claimed when the occasion of the publication is privileged. This Court in the case of Iloabachie Vs. Iloabachie (2005) 5 SC (Pt. II) 146, cited with approval, the dictum of Lord Esher, MR in Pullman Vs Hill Ltd.

17

(1891) 1 QB, on what is meant by qualified privilege, to wit:

“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.”

See also: Bakare vs. Ibrahim (1973) 6 SC (Reprint) 147 @ 152 – 153, where this Court held thus:

“In an action for defamation, it is usual to allege in the statement of claim that the words were printed and published “falsely and maliciously”. If the publication is shown to be false, malice is inferred by operation of law; it is enough to show that the words complained of, 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”…

18

It should always be borne in mind that, once the plea of fair comment or qualified privilege is made out, … the inference of malice is rebutted and the burden is thrown upon the plaintiff of showing and proving ‘express malice’ against the defendants. This is generally known as “malice in fact,” and to be able to discharge the onus at the trial it is important that the plaintiff should deliver a reply, alleging express malice and giving particulars of the facts from which such malice is to be inferred.”

See also: Mainstreet Bank Ltd. & Anor. Vs. Binna (2016) 1- 2 SC (Pt. IV) 140 @ 145 – 148.

In the instant appeal, the publication of the alleged libellous statement is not in dispute. The appellant’s contention is that malice was specifically pleaded and proved and therefore the defence of qualified privilege did not avail the respondents. From the authorities cited above, the law presumes malice from the fact of the publication of the alleged libel. The trial Court held that the respondents’ defence of qualified privilege did not avail them because they failed to prove the allegations in Exhibit B beyond reasonable doubt.

19

The Court noted that the Police investigated Exhibit B and found that there was no evidence that the threatened parties were shot nor any evidence that the hall in the camp was actually burnt down. It also held that the appellant had proved that the respondents were actuated by malice. The lower Court, on the other hand, held that what the trial Court ought to have considered is whether Mr. Guy, who conveyed the threat to the 2nd respondent, was actually given that information. The Court held that having failed to consider the truth of the information, there was no publication of Exhibit B to found an action in libel.

It should be reiterated at this juncture, that Exhibit B was a letter written to the Commissioner of Police in Rivers State by the 2nd respondent, seeking protection on account of a threat allegedly issued by the Managing Director of the appellant, which was relayed through Mr. Guy. There can be no doubt that a person to whom a threat of violence has been made has a moral duty to report such threat to the Police and the Police, charged with the protection of lives and property, has a corresponding duty to receive the information. The police, in this case did not ascertain whether or not such a threat was made.

20

The focus of its investigation was to determine whether the appellant had armed robbers in its employ, whether any of the named persons in Exhibit B had been shot and whether the hall at the residential camp had been burnt down. In other words, the Police sought to determine whether the threat had actually been carried out. The learned trial Judge relied on the outcome of this investigation for his findings. I agree entirely with the learned Justices of the lower Court, that the issue that should have engaged the mind of the learned trial Judge was whether in fact the threat to Mr. Guy, the Camp Supervisor, which gave rise to the request for protection, was actually made. Having failed to conduct this enquiry, the unchallenged evidence before the Court was that the respondents genuinely feared for the safety of lives and property and sought the protection of the Police to avert any unpleasant incident. The respondents clearly made out the defence of qualified Privilege.

It is true that the appellant pleaded malice. As stated earlier, in a defamation matter, where the words complained of are found to be defamatory and are shown to have been

21

published to a third party other than the complainant, malice is presumed. However, where a defence of qualified privilege is made out, the presumption of malice is rebutted. The plaintiff then has the onus of proving express malice against the defendants. See: Bakare Vs. Ibrahim (supra) at 153 lines 15 – 22. The appellant was unable to prove express malice in this case. While it was alleged that there was bad blood between the 2nd respondent and the Managing Director of the appellant because of a recommendation made to Dowell Schlumberger, a separate company from the 1st respondent, the appellant failed to lead any evidence to show that the said recommendation ever came to the notice of either of the respondents. Furthermore, as rightly pointed out by the lower Court, a close examination of Exhibit B shows that the complaints therein are against the Manager of Chilkied Security Services in his personal capacity. The said Managing Director, who testified as PW1 was never a party to the proceedings. In the circumstances, I hold that the lower Court was right when it held that the publication of Exhibit B to the Police could not found an action in libel.

22

The respondents had a duty to report the threat of violence to the police and the police had a corresponding duty to receive the complaint. The reciprocity of interest between the writer and the receiver was duly established. I also agree with the learned Justices that the words used in Exhibit B were not shown to be injurious to the appellant. I also hold that the lower Court properly considered the effect of malice on the defence of qualified privilege and rightly held that malice was not proved.

Issues 1 and 3 are accordingly resolved against the appellant.

Issue 2, which challenges the finding of the lower Court that the trial Court failed to consider the truth of the information contained in Exhibit B, has been addressed in the course of resolving Issues I and 2. I answered the issue in the affirmative. What was relevant was whether the threats mentioned in Exhibit B were actually made and not whether the threats were carried out. Issue 2 is accordingly resolved against the appellant. Having resolved Issues 1, 2 and 3 against the appellant, I do not deem it necessary to consider Issue 4.

23

The defence of qualified privilege having been properly made out by the respondents, the claim for damages and injunction could not succeed.

In conclusion, I hold that the appeal lack merit. It is hereby dismissed. The judgment of the Court of Appeal in Appeal No. CA/PH/101/2001 delivered on 13/4/2006, setting aside the judgment of the trial Court, is hereby affirmed. The respondents are entitled to costs, which I assess at N250,000 against the appellant.

---

SC.85/2007