Dr E.J. Esenowo Vs Dr I. Ukpong & Anor (1999)

LAWGLOBAL HUB Lead Judgment Report

M. A. BELGORE, J.S.C.

This appeal is in respect of alleged libelous publication concerning the plaintiff/appellant, Dr. Esenowo Johnson Esenowo. The appellant is a medical doctor who was at the material time of the alleged offensive publication the Medical Director in charge of Memorial Specialist Clinic, Uyo. The first defendant/respondent is also a medical doctor employed, at the material time of this alleged libel, by the Mobil Producing Nigeria Limited, the second defendant/respondent. In the final amended statement of claim the appellant averred inter alia as follows:

“4. In or about the month of May, 1984, the first defendant falsely and maliciously wrote an undated memo in longhand, signed it and published it to one MII (whose full name is Moses I. Itam) of and concerning the plaintiff in the way of the plaintiff’s profession the words following, that is to say:-

‘Dr. E. J. Esenowo (meaning thereby the plaintiff) is not registered with Nigerian Medical Council. Bill cannot therefore be reimbursed.’”

Mr. Moses I. Itam, referred to as “MII”, was an official of the second defendant/respondent and his duties included reimbursement of medical fees to second respondent’s employees. Thus the memorandum, Exhibit H at the trial court, is held out as libelous by the appellant. The bill, on Exhibit H, is in respect of medical treatment Mr. Itrechio had in the clinic of the appellant. The first respondent minuted on it to Moses I. Itam that the appellant’s name was not in the register of the medical practitioners and in the statement of defence averred inter alia as follows:-

“7(a) … that although the 1st defendant minuted upon Mr. Itrechio’s Medical Receipt Re-Imbursement Application for 2nd May. 1984 to the effect that the name of the Doctor stated in the application by Mr. Itrechio, that is Dr. E. J. Esenowo: is not listed in the current Nigerian Medical Council’s register (i.e. Medical Council Register for 1980) and sent the document back to another officer of the 2nd defendant, Moses I, Itam. He, the 1st defendant, did not thereby or in any other way publish the said words or any words of similar purport to Mr. Itrechio nor to anyone else,”

The 1st respondent further averred that neither he nor Mr. Moses I. Itam published anything to anybody. Exhibit H was an internal memorandum of the second respondent and was not supposed to be taken out of the possession of the company.

The PW7, Moses Itam, was surprised that Exhibit H got out of the company’s possession as it was an entirely internal memorandum. PW6, Mr. Itrechio, testified that he was not happy his medical bill was not going to be refunded and he took Exhibit H to the appellant who held on to it and refused to release it to him. He remembered that some employees were once found to be patronizing quack doctors leading to their dismissal from the company. Exhibit H mentions Dr. E.J. Esenowo, but the receipts/bills forming Exhibits P and P1 were issued by one Dr. E. A. Esenowo. It seems the confusion was between the names – Dr. E. A. Esenowo. Dr. J. E. Esenowo and Dr. E. J. Esenowo. The Nigerian Medical Council register for 1980 and 1981 did not list the appellant as Dr. E. J. E Esenowo but as J. E. Esenowo and the normal practice, as clearly’ in evidence before the court, was to ask the employee claiming reimbursement to bring photocopies of the doctor’s registration with the Council. The bills, Exhibit P and P1, given by the appellant to the PW6 were signed by E.A. Esenowo as Medical Director. E. A. Esenowo is not a registered medical practitioner. But one fact is uncontroverted and that is that the document Exhibit H is an internal memorandum of the second respondent exchanged by first respondent and M.I.Itam (PW7) in the course of their official duty with the second respondent. Secondly, all that the PW6 had to do to get reimbursed for the bills – Exhibits P and P1 – was to satisfy the company that the appellant was registered with the Nigerian Medical Council. Thus, Exhibit H, between first defendant/respondent PW7 (M.I. Itam) and Mr. Itrechio (PW6), is an internal memorandum executed in the course of official duty.

The trial High Court, after reviewing the evidence and the pleadings, found for the plaintiff in libel and awarded damages in consequence. The defendants appealed to the Court of Appeal where the appeal was allowed. The Court of Appeal came to its conclusion by holding that the plaintiff/appellant caused the confusion by the way his name was registered in the Medical Directory of 1980, which was the then current edition with second defendant, the name entered was J. E. Esenowo, this is Exhibit E. This prompted the first defendant to minute as he did in Exhibit H as follows:-

“Dr. E. J. Esenowo is not registered with the Nigerian Medical Council, Bill cannot therefore be reimbursed.”

The Court of Appeal held that what the first defendant wrote in Exhibit H was true because the professional register for 1980 and 1981 entered the name “Esenowo, J.E.” not “E.J. Esenowo”. In professional matters it is always of great importance to have one’s name inserted correctly. The Court of Appeal therefore held that the Dr. Esenowo in the register of medical practitioners was J.E. Esenowo not E. J Esonowo, a correct statement of fact. Thus the plaintiff has appealed to this Court.

The appellant has set out four issues for determination as follows:-

“(i) Whether the learned Justices of the Court of Appeal were right in holding that the defence of justification was available to the respondents when that defence was neither pleaded, canvassed at the trial nor an issue before the Court of Appeal.

(ii) Whether upon the evidence the defence of justification had, in fact, been established, even if pleaded.