Eddy I. Onah V Schlumberger (Nig) Ltd & Anor (2018)

LAWGLOBAL HUB Lead Judgment Report

OLABODE RHODES-VIVOUR, JSC

Proceedings leading on to this appeal were first instituted in a Port Harcourt High Court, River State of Nigeria. Osu J presided and in that court the plaintiff/appellant claimed as per paragraph 21 of his amended statement of claim:

(a)The sum of seven million naira being general damages for libel contained in the letter dated 2nd day of March, 1992 written and published or caused to be written and published by the defendants’ and concerning the plaintiff captioned THREATS FROM THE MANAGER OF CHILKED SECURITY SERVICES.

(b)An injunction restraining the defendants’, their servants and/or agents from writing and publishing or causing to be written and published any similar libel of and concerning the plaintiff.

The plaintiff is the Managing Director of Chilkied Security Services and Dog Farms Ltd, while the 2nd respondent is the head of Administration of the 1st respondent. The 1st respondent awarded a contract to the plaintiff. The plaintiff was to provide Security Services at the residential Camp, office, and Warehouse of the 1st appellant.

The plaintiff went to work, but after a while the contract was terminated. The 2nd respondent claimed that the termination of the contract did not go down well with the plaintiff. He claimed that he was threatened by the plaintiff in messages sent by the plaintiff to him (the 2nd respondent). The 2nd respondent wrote a letter exhibit C to the Commissioner of Police reporting the threats of the plaintiff and seeking Police protection. The plaintiff claimed that the contents of exhibit C. are defamatory of him. The defendants’ relied on the defence of justification and qualified privilege pleadings were filed and served. Trial was heard on the plaintiff’s amended statement of claim filed on 14 April, 1994 and the defendants’ second amended statement of defence filed on 10 July 1996. The plaintiff gave evidence and called two other witnesses. The defendants’ called two witnesses and a total of six documents were admitted as exhibits, A, B, C, D, E, and F.

In a considered judgment delivered on 28 November, 1997 the learned trial judge agreed with the plaintiff. His lordship found that the plea of qualified privilege cannot be sustained.

Awarded the sum of 2,500, 000.00 (Two million, five hundred thousand Naira) in favour of the plaintiff against the defendants’ jointly and severally, and made an order of injunction restraining the defendants’ their servants and/or agents from writing and publishing or causing to be written and published any similar libel of and concerning the plaintiff.

Dissatisfied with the judgment of the trial court, the defendants’ filed an appeal. It was heard by the Port Harcourt Division of the Court of Appeal. That court set aside the judgment of the trial court, and ordered that all monies paid in satisfaction of the judgment shall be refunded to the respondents (appellants’ in the Court of Appeal).

This appeal is against that judgment. Briefs were filed and exchanged. The appellant’s brief was filed on 24 March 2009 but deemed properly filed and served on 1 July 2009.

The respondents’ brief was filed on 4 July, 2011 but was deemed duly filed and served on7 June, 2017. Learned counsel for the appellant, Mr. O. Iheniyen formulated two issues for determination from two grounds of appeal:

1.Whether despite properly stating the effect of malice on the defence of qualified privilege the lower court properly considered same in this suit vis a vis the evidence before the court.

2.Whether after determining that a defence of justification would constitute an uphill task to establish and that the justification purportedly set up by the respondents’ was “feeble” and “half-heartedly pleaded”, the Court of Appeal was right to have held that the trial judge did not make a finding as to whether the respondents’ actually uttered the words or not. This issue is elicited from grounds 2 of the Notice and Grounds of Appeal.

Learned counsel for the respondents’ Mr. S.A. Somiari also formulated two issues for determination:

1. Whether the Court of Appeal properly considered the effect of malice on the defence of qualified privilege in line with the evidence before the court.
2. Whether the Court of Appeal was right to have held that the trial judge did not make a finding as to whether the respondents’ actually uttered the words or not when it had already stated that the defence of justification raised by the respondents’ as feeble and half-heartedly pleaded.

Learned counsel for the respondents gave notice of Preliminary Objection brought under Order 2 Rule 9(i) of the Supreme Court Rules. The Preliminary Objection was argued in the respondents’ brief. Arguing a Preliminary Objection in the respondents’ brief has been accepted practice for quite a long time. It obviates the need to file a separate Notice of Preliminary Objection. See Ajide v Kelani (1985) 3NWLR (Pt.12) p.240 Maigoro v Garba (1999) 10 NWLR (Pt. 624) p.570. When the respondent argues his Preliminary Objection in the respondents brief the appellant is expected to respond by filing a Reply brief. Where, as in this case the appellant fails to file a Reply brief the Preliminary Objection is deemed to have been conceded by the appellant. In such a case, the court should still examine the preliminary objection to ensure that it does not hear an incompetent or fundamentally defective appeal. See Nwankwo v Ecumenical Development Co. Society (2002) 1 NWLR (Pt. 749) p.513.

PRELIMINARY OBJECTION

Order 2 Rule 9 (i) of the Supreme Court Rules provides for the filing of Preliminary objection. In Isah v INEC & 3ors (2014) 1-2 SC (Pt. iv) p.101.

I said that:

“A Preliminary Objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. The purpose of a preliminary objection is to convince the court that the appeal is fundamentally defective in which case the hearing of the appeal comes to an end if found to be correct. Where a preliminary objection would not be the appropriate process to object or show to the court defects in processes before it a motion on notice filed complaining about a few grounds or defects would suffice.”

See also Nwaolisah v Nwabufoh (2011) 8-7 SC (Pt.ii) p.138. Dakolo & 2 ors v Dakolo & 3ors (2011) 6-7 SC (Pt.ii) p.104. Wachukwu & anor v Owunwanne & anor (2011) 5 SC (Pt.i) p.168

Learned counsel for the respondent filed this preliminary objection because according to him the two grounds of appeal are incompetent. If found to be correct there would be no grounds on which to formulate issues to hear the appeal. In the circumstances a preliminary objection was properly filed against the hearing of this appeal.

The complaint of the respondent reads:

1. That the grounds of appeal in the appellant’s notice of appeal dated and filed on 1 March, 2006 are incompetent.
2. That the appeal be dismissed for being incompetent.

The grounds of the said objection are:

(a)That ground 2 of the grounds of appeal does not arise from the judgment of the lower court.

(b)That ground 2 of the grounds of appeal arose out of an obiter dictum of the Court of Appeal.

(c)That the said ground 2 is not related in any way to the ratio decidendi of the judgment of the Court of Appeal and is thus incompetent.

(d)That the issues raised and argued on a sole ground of appeal (ground 1) in the appellant’s brief are incompetent.

(e)That as such, the grounds of appeal and the appeal itself are incompetent.

In his argument in support of his Preliminary objection learned counsel for the respondent, distilled two issues for determination. They are:

1.Whether ground 2 of the notice of appeal is in any way related to the ratio decidendi of the judgment of the Court of Appeal.

2.Whether the appellant can raise and argue two (2) issues on a single ground of appeal.

On issue 1 learned counsel for the respondent observed that in ground 2 the issue of justification was raised by the appellant. He argued that justification as raised by the appellant is an obiter dictum of the Court of Appeal, and it cannot form the ratio decidendi of a case. He submitted that a ground of appeal is on the ratio decidendi of a case and an issue can only be formulated from such a ground. Reference was made to Adelekan v Ecu-line N.Y. (2006) ALL F.W.L.R (pt.321) p.1213.

He observed that since issue 2 arose from the obiter dicta of the Court of Appeal, there is in law no ground 2, contending that issue 2 formulated from ground 2 is incompetent. Reliance was placed on Odife v Aniemeka (1992) 7 NWLR (Pt.251) p.25 Oikherhe v Iwanefero (1997) 7 NWLR (Pt. 512) p.226.

He urged the court to strike out ground 2 and issue 2 formulated from it.

On issue 2, learned counsel for the respondent observed that since ground 2 of the notice of appeal is incompetent this court cannot determine the appeal, further observing that since ground 1 of the notice of appeal is also incompetent a party cannot formulate two or more issues from a single ground of appeal. Reliance was placed on Bepco v Nasr Mgt Services Ltd (1993) 7 NWLR (Pt. 305) P.369.

He submitted that the issues raised by the appellant are incompetent. He urged the court to dismiss the appeal.

It is important at this stage that I reproduce the Notice of Appeal along with the issue formulated from it. I start with ground 2.

GROUND TWO

MISDIRECTION

The learned Justice of Court of Appeal misdirected itself when it properly agreed feeble and “half-hearted” and that the trial judge was right in rejecting same but went ahead to hold that “the learned trial judge did not make a finding as to whether the respondents’ actually uttered those words or not.”

PARTICULARS

(i)It is trite law that the defence of justification in an action for libel is an attempt to show the truth or falsity of communication or publication hence the Court of Appeal commended the trial judge for rejecting the defence of justification.

(ii)The Appeal Court fell into the same mistake when it stated that “No evidence was placed before the trial court to show that the respondent as plaintiff could not possibly have made those threats”………… The Court of Appeal also said that “……….. No investigation was conducted by the 2nd defendant……… to find out the truth of information …………”

These are apparent references to the need to prove the falsity or otherwise of the communication which the court earlier said the trial court was right in rejecting.

It is clear from the above that the complaint of the appellant is on the defence of justification.

Issues 2 formulated from ground 2 above reads:

“Whether after determining that a defence of justification would constitute an uphill task to establish and that the justification purportedly set up by the respondents’ was “feeble and half-heartedly pleaded”, the Court of Appeal was right to have held that the trial judge did not make a finding as to whether the respondents’ actually uttered the words or not.

There is a clear distinction between ratio decidendi and obiter dicta. The former has a binding effect in a judgment. It is authority for what the case decides or stands for. The ratio decidendi of the judgment of the Court of Appeal is that the defence of qualified privilege is established when the person who makes the publication has a moral duty to make it to the person to whom he makes it and the person who receives it has an interest in hearing it and since these twin conditions exist there was no malice and so qualified privilege availed the appellants/respondents. On the other hand obiter dicta are mere observations of the court and a court is entitled to make observations in the process of preparing its judgment. The issue of justification was not an issue formulated for determination by either party or it was not one of the two issues considered by the Court of Appeal. In the process of considering the defence of qualified privilege the Court of Appeal explained the difference between it and the defence of justification. This was obiter dictum of the court.

Now, Grounds of Appeal must question the ratio decidendi and not the obiter dicta. That is to say an appeal does not lie against an obiter dictum. It lies against the ratio decidendi. The defence of justification was commented on by the Court of Appeal. The comments amount to obiter dictum of the court and nothing more. Since it is well settled that grounds of appeal must relate to, and challenge the decision appealed against, while the issues must arise from the grounds. Grounds 2 which is on the obiter dicta of the court is incompetent. So also is issue 2 formulated from it? The end result is that ground 2 and issue 2 are incompetent and are hereby struck out.

The top court is a court of last resort. It is always competent to entertain a point of law raised for the first time before it, when the justice of the case so demands. The point must be a substantial point. However the top court may refuse to entertain a question of law if it is satisfied that the Court of Appeal would have been in a better position to deal with the matter. In this case the issue of defence of justification is important, but it was not raised by other party in the Court of Appeal or by the Court of Appeal. The party that relied on it, that is the respondents’ in this appeal succeeded in the Court of Appeal on the defence of qualified privilege. The defence of justification is not a substantial point worth considering by this court, since the party to rely on it never bothered to raise it in the Court of Appeal. There would thus be no need for this court to examine it. Once again Ground 2 and Issue 2 are struck out for being incompetent.

GROUND 1

The learned Justices of the Court of Appeal erred in law when despite properly stating the state of the law relating to qualified privilege they failed to apply the issue of malice pleaded in the amended statement of claim and upon which evidence was given by PW1.

PARTICULARS

i.The learned Justices of the Court of Appeal found that the words used in exhibit C are quite plain and ordinary in my humble opinion……….hence the judge found the terms of exhibit C as sufficiently plain and explicit and therefore require no further decoding” …….Exhibit C the letter sent to the Commissioner of Police Rivers State Command contained defamatory words.”

ii.Having come to the above conclusion the learned justices thereafter correctly too discussed the defence of qualified privilege pleaded by the respondent. In its reasoning the court said “while it is correct that malice destroys the defence of qualified privilege the said malice must be established and the burden of proof lies squarely on the plaintiff…………”

iii. The appellant had in his amended statement of claim at paragraph 20(e) (i) and (ii) at page 34 lines 5-26 of the record of appeal at the lower court stated the malice which actuated the writing of exhibit C. The respondents’ only response at paragraph 15 of their second further amended statement of defence is that the averments “are speculative and imaginary aimed at weeping up sentiment against the second defendant. The 2nd defendant had at no time commissioned and/or proposed to the plaintiff to make false allegation against any person.”

iv. At the hearing PW1 gave evidence of the malice and tendered exhibit E, see pages 42 lines 20-32 and page 43 lines 1 -10. The cross-examination of PW1 recorded at pages 47-48 of the record at the trial shows that no question was asked relating to the evidence of malice. In his defence DW1 only reference to malice was when he stated that “exhibit C which is a letter dated 2/3/92 was not made in malice as the informant i.e. Mr. Guy and J. Bedford did not deny that what they said to the 2nd defendant were not true.” Consequently and by rules of evidence the defendants/respondents are deemed to have abandoned their pleadings (if any) relating to malice as pleaded by the appellant.

v. The appellant had in his amended statement of claim stated that there were other security outfits operating within the Rumuogba Presidential Camp – a fact admitted by DW1 under cross-examination when he said “I know Mr. Lataitra very well He was a security consultant…………………………I know Karaka Security Company. This company provides security services at Rumuogba Camp at a given time. Chilkied Security Services and – Dog Farm Limited was providing security services at Rumuogba Camp at the same time …………. paragraph 6 suggested the removal of the services of the camp boss and resident camp supervisor …………. The camp boss is the same as the camp supervisor. He is one and the same person. Mr. Guy is the supervisor acting as the camp boss.” It is to be noted that the said Mr. Guy who claimed to have been told the threat leading to the writing of exhibit C is the same person who the appellant recommended to be removed from Rumuogba Camp. Despite the above the learned Justices of the Court of Appeal were unable “………… to see clearly any element of improper motive or malice …….”in the writing of exhibit C. This is so in-spite of the fact that at paragraph 2 of page 16 of the judgment of the Court of Appeal confirmed that the “relationship between the respondents and appellant had soured up so much.” The court failed to look up the reasons for the souring up as pleaded by the appellant and admitted by the respondents. The court ought to have realized that since appellant had recommended the removal of Mr. Guy the same had enough reason and motive for framing up the complaint that led to the writing of exhibit C.

vi. It is the law that in a case where the defence of qualified privilege may apply there can be no imputation of malice unless and until express malice is pleaded and proved and once so pleaded and proved the same destroys the defence of qualified privilege. In this case the express malice was pleaded and proved; the same was not challenged by the pleadings of the respondents. The respondents in their evidence failed, refused or neglected to give evidence in rebuttal of the express malice so pleaded and proved.

Learned counsel for the appellant claims that issue No1 was formulated from Ground 1 reproduced above. Issue 1 reads:

“Whether despite properly stating the effect of malice on the defence of qualified privilege the lower court properly considered same in this suit vis a vis the evidence before the court.

Learned counsel for the respondents’ submitted that ground 1 is incompetent, and that two issues cannot be formulated from a single ground of appeal.

A ground of appeal would be incompetent if the adversary is left in doubt as to what the complaint of the appellant really is. See Aderounmu v Olowu 2000 SCNJ p. 180.

After reading Ground 1 and the particulars, the ground and issue 1 formulated from it asks the question whether the Court of Appeal properly considered the defence of qualified privilege and the effect of malice on such a defence. This ground is against the ratio decidendi of the judgment of the Court of Appeal. I am in the circumstances satisfied that issue 1 was not formulated from ground 2 but from ground 1.

Ground 1 and Issue 1 are thus competent.

The Preliminary Objection succeeds in part. The appeal would be heard and determined on Ground 1 issue 1.

I have examined issue 1 and I am not satisfied with how it was framed. The grievance of the appellant is that the Court of Appeal was wrong to find that the defence of qualified privilege avails the respondents’. This calls for a thorough review of the reasoning of the Court of Appeal, and in that regard I am firmly of the view that the sole issue for determination is reframed to read:

“Whether the defence of qualified privilege avails the respondents’.

Learned counsel for the appellant submitted that the plea of qualified privilege as relied upon by the respondents’ is destroyed by malice as can be seen as aforestated by paragraphs 4 and 20 (a to e) of the amended statement of defence at pages 33 – 34 of the Record of Appeal. Further submitting that the particulars of malice are evidence from which to infer that the publication was actuated by malice. Reliance was placed on Emeagwara v Star Publishing Co. Ltd (2000) 10 NWLR (Pt.676) p.409. Esenowo v Ukong (1999) 6 NWLR (Pt.608) p.620. Concluding he submitted that the plea of qualified privilege relied upon by the respondents has been destroyed by malice. He urged this court to allow them appear and set aside the judgment of the Court of Appeal and affirm the judgment of the trial court. Responding, learned counsel for the respondents’ observed that the Court of Appeal properly considered the effect of malice on the defence of qualified privilege before setting aside the judgment of the trial judge. Reliance was placed on Kanu v Oparaocha (2006) ALL FWLR (Pt. 309) p.1499 Oyelola v Bannekan (2005) ALL FWLR (Pt.257) p.1586.

He urged this court to hold that the Court of Appeal was correct in its reasoning and conclusions.

The tort of defamation is either libel or slander. The former is written while the latter is spoken. Libel or slander is thus written or spoken words that expose a person to hatred, ridicule or contempt. That is to say to be shunned or avoided and to be lowered in the estimation of right thinking people in society. To disparage a person in his profession or trade. See Guardian Newspapers Ltd v Ajeh (2011) ALL FWLR (Pt.584) p.1

Exhibit C is what the appellant claims was defamatory of him, this appeal is on Libel.

The essential ingredients of libel are:

1. The words complained of must have been written;

2.The libellous matter must be published;

3.The words must refer to the plaintiff;

4.It must be the defendant who published the words;

5.The onus is on the plaintiff to prove that he was the one referred to in the alleged libel;

6.The publication must be false except when the defence of qualified privilege is relied on.

The publication of libellous matter gives the plaintiff the cause of action. This is well settled position of the law that libel is all about the estimation in which others hold the plaintiff and not what he thinks of himself.

Exhibit C is a letter written to the Rivers State Commissioner of Police. It is this letter that the appellant says is libellous. It reads:

The Commissioner of Police

Rivers State Police Command,

Port Harcourt.

Attn: Mr. O.O. Onogie

Dear Sir,

SUBJECT: THREATS FROM THE MANAGER OF CHILKIED SECURITY 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 went to the residential camp supervisor Mr. Guy, whom he (Manager of Chilkied) now told to relay to me, the following:

1.That himself (the chilkied Services Manager) Would organize for Messrs GUY LETARTRE & MAGUET, to be shot.

2.He had armed robbers on his monthly payroll and 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 affected 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 (sic) as property by taking whatever actions you deem fit, to avoid any unpleasant incident.

Yours faithfully,

SCHLUMBERGER (NIG) LTD

P. MAGUET

East Nigeria District Manager.”

Was there publication of exhibit C?

The writing of libellous matter does not constitute publication. Once the libellous matter is made known (i.e. read) by someone other than the person of whom it is written (in this case the plaintiff/appellant) there is publication. That is to say that once libellous matter is written and delivered to anyone other than the plaintiff, publication is complete and an action for libel can be filed.

Both parties agree that there was publication. The respondents’ wrote exhibit C and sent it to the Commissioner of Police Rivers State. There was publication of exhibit C since the Commissioner of Police is a person other than the person of who exhibit C was written.

The words complained of were written (see exhibit C). The libellous matter was published.

This was done when the respondents’ sent it to the Commissioner of Police and the libellous matter referred to the appellant.

The respondents pleaded the defence of qualified privilege. A defence of qualified privilege would only be considered if it is robustly pleaded, so that the plaintiff has good notice of the defence. Simply pleading that the defendant relies on the defence of qualified privilege or that the publication of the defamatory statements was made on a privileged occasion would be inadequate.

The respondents’ as defendants robustly pleaded qualified privilege with detailed particulars in paragraph 8(a – k) of the second further amended statement of defence. I am satisfied that the defence of qualified privilege was properly pleaded. Why did the respondents’ write exhibit C to the Commissioner of Police?

After the respondents terminated the appellant’s security contract the appellant reacted angrily to the loss of job and sent threat messages to the respondents’. The respondents’ felt threatened and duly lodged a report to the Commissioner of Police (exhibit C) for protection.

The respondents’ maintain that they were merely reporting the appellant’s words and were relying on the defence of qualified privilege. The Court of Appeal agreed with the respondents’. After examining the defence of qualified privilege that court found that the defence of qualified privilege availed the respondents’ and that no effort was made to establish the malice of the 2nd respondent who wrote and published exhibit C.

The defence of qualified privilege is available when there is a common interest between the maker of a defamatory statement and the person to whom it is made. There must be reciprocity of interest. The maker of the defamatory statement must have an interest or duty, legal, social or moral to make it and the person to whom it was made must have a corresponding interest or duty to receive it. The court must consider the motive for the publication to be satisfied that the maker of the defamatory statement was not actuated by malice. The defence of qualified privilege collapses when malice is established, and the onus is on the plaintiff to satisfy the court that the publication was actuated by malice. The truth or falsity of the libellous matter is irrelevant when considering the defence of qualified privilege. See Emeagwara v Star Publishing & Publishing & Company Ltd & ors (2000) 5 SCNJ p.175 Offoboche v Ogoja Local Government & anor (2001) 7 SC (Pt.iii) p.107; Iloabachie v iloabachie (2005) 18 NWLR (Pt.950) p.510; Mamman v Salaudan (2005) 18 NWLR (pt.958) p.510; Esenowo v Ukong (1999) 6 NWLR (Pt.608) p.620

Applying the above to the facts of the case, exhibit C is the letter that the respondents’ wrote and sent to the Commissioner of Police, Rivers State.

No doubt, it contained defamatory words, but the Commissioner of Police is a public officer as provided by the Constitution with the responsibility for the maintenance of law and order. Exhibit C was addressed to the Commissioner of Police in his official capacity. The Commissioner of Police has a corresponding duty to receive a complaint from a person who is duty bound to report such a complaint. The essential requirement of reciprocity of interest is established.

Malice means a feeling of hatred. Can it be said that exhibit C was sent to the Commissioner of Police by the respondents’ because they hate the appellant. The onus is on the appellant, as the plaintiff to satisfy the court that exhibit C was actuated by malice.

On whether the appellant as plaintiff was able to satisfy the court that exhibit C was actuated by malice, the Court of Appeal said:

“………… The plaintiff rather concentrated on establishing defamation by publication actuated by malice. Where malice? No efforts were made to establish the malice of the 2nd appellant who wrote and published exhibit C to the Commissioner of Police ………………..The basis for the supposed malice was therefore not established before the court.”

In paragraph 5 – 12 on page 7 of the appellant’s brief he submitted that the particulars of malice are evidence from which to infer that the publication was actuated by malice.

Rules of court on pleadings require a party to state concisely in numbered paragraphs the material facts of his case on which he relies but not the evidence with which those facts are to be proved. Pleadings without evidence to support or sustain it are worthless. In view of the above the particulars of malice can never be evidence from which to infer that the publication was actuated by malice. Malice is proved only is evidence. The onus is on the appellant, as plaintiff to adduce credible and convincing evidence to show that exhibit C was actuated by malice. This, the appellant failed woefully to do. The Court of Appeal was correct that malice was not established.

Since the respondents’ had a moral duty to make a report of the threats to their safety to the Commissioner of Police and the Commissioner of Police as security officer of Rivers State had an interest in hearing it, Reciprocity of interest is clearly established and malice cannot even be imagined, the defence of qualified privilege avails the respondents.

Finally I must state that the defence of qualified privilege avails a defendant in an action for libel once there is corresponding interest and absence of malice and both are very present in this case. Accordingly this appeal is dismissed. The judgment of the Court of Appeal is hereby affirmed.

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SC. 90/2007