Prophet Ifeanyi Emeagwara V. Star Printing And Publishing Co. Ltd & Ors (2000)
LAWGLOBAL HUB Lead Judgment Report
KALGO, J.S.C.
The appellant was the plaintiff in the High Court of Plateau State holden in Jos where he took out a writ of summons against the respondents jointly and severally claiming the sum of N200,000.00 as aggravated or exemplary damages for libel published in the Daily Star of 18th of January, 1988. He also sought for an injunction to restrain the respondents from further publication of the libel. The publication concerns the appellant and the Christ Bible Mission, Jos of which he was the founder. Both parties filed and exchanged pleadings.
Paragraph 5 of the statement of claim of the appellant inter alia reads:
On the 18th day of January, 1988, the defendants falsely and maliciously wrote and printed and published on the back page of the issue of “Daily Star” dated that day of and concerning the plaintiff under the caption titled “Prophet docked over indecent assault”, the words following that is to say:-
“A Jos Chief Magistrate Court has heard that a Prophet with the “Christ Bible Mission”, Nassarawa-Gwom, Jos, allegedly removed pubic hairs and finger nails of a lady adherent of the Mission, in a pre to pray for her with those materials”.
The Prophet, Ifeanyi Emagwara, who is now standing trial before the court on a charge of indecent assault allegedly committed the offence between May and June last year, according to the prosecution …”
The respondents in paragraphs 4 and 5 of their statement of defence pleaded thus:-
“4. The defendants admits (sic) the publication as contains (sic) paragraph 5 of the statement of claim but aver that the publication was not false and malicious. The defendants aver that in so far as the said publication consists of allegation of fact, they are true in substance and in fact, in so far as it consists of expression of opinion, they are fair comments and made in good faith and without malice against the plaintiff.
- In further answer to paragraph 5 of the statement of claim, the defendants aver that the publication was part of the proceedings in the Chief Magistrate’s Court, Jos which is privileged. The defendants will at the trial rely on the said proceedings of the said case”.
(Italics mine)
At the trial, the appellant called 3 witnesses to prove his case and the respondents called only 2 witnesses in their defence. At the end of the evidence in the case, counsel addressed the court on the evidence and the law applicable. On the 28th of May 1991, learned trial Judge, Azaki J, delivered his judgment and came to the following conclusion:-
“In my judgment, although the complained publication was defamatory in substance, but being a fair and accurate report of judicial proceedings, the publication was privileged. To this extent, I dismiss the plaintiff’s claim against the defendant. (Italics mine)
Notwithstanding this clear finding, the learned trial Judge proceeded to award the sum of N20,000.00 to the appellant which he considered as adequate compensation for the injury suffered by the appellant as a result of the publication, in case an appeal court finds his judgment to be erroneous.
The appellant was not satisfied with this decision and he appealed to the Court of Appeal. The Court of Appeal dismissed the appeal and held, per Musdapher JCA who wrote the leading judgment, thus:-
“In my view, the respondents are completely exonerated from any legal liability and therefore, the question of the assessment of damages does not arise on the appeal”.
Still the appellant was dissatisfied and he now appealed to this court on only two grounds. Both parties later filed their briefs and exchanged them between themselves. The appellant formulated two issues for the determination of this court in the appeal which read:-
“(a) Whether or not the publication in the Daily Star Newspaper of 18/1/88 is a fair and accurate report of judicial proceedings so as to avail the defendants of the defence of qualified privilege.
(b) Whether or not the publication was malicious having regard to all the circumstances of its publication and whether malice has been established” .
For the respondents the only issue raised was:-
“Whether in the circumstances of the case, the defence of qualified privilege was available to the respondents.”
Having regard to the two grounds of appeal filed by the appellant in his appeal, I am of the view that the two issues for determination raised by the appellant for consideration of this court are quite proper and germane. I intend however to consider them together because in the treatment of the issue of qualified privilege, the issue of malice must necessarily come up.
At common law, qualified privilege primarily relates to statements made in the performance of a duty or in pursuit of a common interest or generally on matters in which the public had legitimate interest. Most of these occasions now covered under the Defamation Act, 1996 in England are now conferred statutory qualified privilege. We are not here concerned with the said English Act, but it has been established that even at common law, to sustain a plea of qualified privilege in respect of a report or publication, such report or publication must be proved to be “fair and accurate”. See Kingshott v. Associated Kent Newspaper (1991) 1Q.B 88 at 98, and “accurate” means substantially accurate. See Bruton v. Estate Agents Licensing Authority (1996) 2 V.R. 274 at 309. And although the report or publication must be fair and accurate, it needs not be verbatim or word for word. What is essential as in this case is that it must be fair, even if very brief, summary of the proceedings to qualify for the privilege. See Tsikita v. Newspaper Publication (1997) 1 All E.R. 655, Cook v. Alexander (1974) Q.B. 279.
The 3rd respondent was the reporter of the 1st respondent. He was DW. 2 at the trial and in his evidence, he testified that he made the publication complained of in his capacity as a reporter. He confirmed that he was in the Chief Magistrate’s Court 1, Jos on 22/12/87 and witnessed the proceedings concerning the matter. It was after the proceedings that he wrote the report which was published in the Daily Star of 18/1/88.
In Gatley on Libel and Slander, 11th Edition paragraph 15.4, the learned authors said:-
“The theory is that the reporter represents the public – he is their eyes and ears and he has to do his best, using his professional skill to give them a fair and accurate picture. Nor need the report be accurate in every detail. If the report be as a whole a substantially fair and correct account of the proceedings, a few slight inaccuracies will not deprive it of protection. But where the inaccuracies are of a substantial kind, there is no immunity”.
Let me now examine the relevant proceedings in Exhibit 3 and compare its contents with those of the publication in Exhibit 1.
The publication complained of and which gave rise to this action was published in the Daily Star (Northern Edition) of Monday 18th January, 1988 on the back page. It was admitted in evidence at the trial as Exhibit 1 and the relevant publication reads:-
” ‘Prophet’ docked over indecent assault;
from
Obi Udefuna,
Jos,
A Jos Chief Magistrate Court has heard that a prophet with the “Christ Bible Mission”, Nassarrawa-Gwom, Jos, allegedly removed pubic hairs and finger nails of a lady adherent of the mission, in a pre to pray for her with those materials”.
The Prophet, Ifeanyi Emeagwara, who is now standing trial before the Court on a charge of indecent assault, allegedly committed the offence between May and June last year, according to the prosecution.
Said the prosecuting Police Officer, Sergeant Kujiral Audu: “The accused lured Miss Patricia Ogbonna into one of the rooms in the church, and began to rub her private parts with an oil.
“Consequently, the accused began to remove the hairs in the girl’s private region and later cut her finger nails”.
Thereafter, the prosecution told the court, Miss Patricia Ogbonna of No.8, Maichibi Street, Jos, reported the matter to the police. Ifeanyi pleaded not guilty and the Magistrate, Mr. Pius Damulak, adjourned for further hearing”.
Also at the trial, certified true copy of the criminal record of proceedings before Mr. P.D. Damulak, Chief Magistrate 1, Jos, was admitted in evidence as Exhibit 3. The First Information Report (FIR) on page 2 of the record reads in part:-
“Nature of Information: Assault on a woman with intent to outrage her modesty:- On the 14/12/87 at about 0800hrs, one Mrs. Rose Otwanye ‘F’ of No.8 Maichibi Street, Jos came to ‘C’ Division Police Station Jos, and reported that sometimes last year, 1987 between the months of May and June, one prophet Ifeanyi O. Emeagwara invited her in a private room in the Church and started cutting hairs of her private part in a pre that he was going to pray for her – Section 268 suggested.
(Italics mine)
Page 3 of the record also reads:-
“Court:- Particulars of the offence read and explained to accused.
Accused: I do understand the offence alleged. I have cause to show. The allegation is a lie. I do not know the woman.
Court: The accused denies the allegation”
(Italics mine)
In looking at the words italicized both in the publication (Exhibit 1) and the F.I.R. and page 3 of the record (Exhibit 3), it is very clear that both have shown that:-
(a) The allegation was the removal of pubic hair of a lady;
(b) In a pre to pray for her;
(c) The person alleged to have done the act was Prophet Ifeanyi Emeagwara;
(d) It took place between May and June last year (1987);
(e) The lady’s address was No.8 Maichibi Street, Jos;
(f) The lady reported the matter to the Police;
(g) Offence contrary to Section 268 of Penal Code;
(h) The accused pleaded not guilty to the offence;
(i) The Magistrate was Mr. Pius Damulak.
All these clearly appeared without any ambiguity in both Exhibits 1 and 3. In respect of (h), the slight difference is that in Exhibit 3, the record says that the accused “denies” the allegation. This in effect means that the accused pleaded not guilty of the offence. The items listed above constitute in my view, the substance of what is contained in the publication complained of, in short. The rest are mere details which cannot change the meaning of what the publication contained.
The learned trial judge listed about 6 areas of differences in his judgment between the publication and the contents of the record of proceedings in the matter but came to the following conclusion:-
“Going back to the entire inaccuracies, I am inclined to the view that they did not substantially distort the impression cast by the proceedings of the court as reported and published by the defendants. The inaccuracies did not make verse (sic) the nature of the allegation of indecent assault for which the plaintiff was arraigned before the learned Chief Magistrate on the F.I.R. I therefore hold that the inaccuracies were minor and did not disentitle the defendant of the defence of qualified privilege”.
The Court of Appeal, per Musdapher JCA in his lead judgment concurred by Muhammad and Orah JCA, said on page 63 of the record of appeal:-
“On the facts of this case, it is not disputed that the appellant was arraigned before the Chief Magistrate Court for the offence of assault on a woman with intent to outrage her modesty contrary to Section 268 of the Penal Code Law of Plateau State; The First Information Report was read and explained to the appellant in open court. The appellant denied the allegation and the matter was adjourned”.
He went on further to say:-
“In order to be privileged, the report must be a fair and accurate account of what took place in court. If what is stated is substantially a fair account of what took place, there is complete immunity for those who publish it. But where the inaccuracy is of a substantial kind, the newspaper report will loose the privilege”.
I entirely agree with this statement of the facts and the law by the Court of Appeal in relation to this appeal.
The learned counsel for the appellant Mr. Okafor SAN, submitted in his brief and emphasised by his oral argument in court, that the 6 items or incidents of inaccuracies found and listed by the learned trial Judge in his judgment, taken as a whole, constituted grave and substantial indicator to the fact that the publication was malicious and could not be protected by law. He drew the attention of the court to the decided cases contained in his list of additional authorities in support of this contention.
The point has already been made earlier in this judgment that D.W. 2 (the 3rd respondent), who made the report which was published in Exhibit 1, did so in his capacity as a reporter of the 1st respondent and that he reported what he perceived in court and in his presence. In his cross-examination, he bluntly denied that he had any malice against the appellant whom he said he did not know at all before the publication.
I have also made a comparative analysis of the publication with what was contained in court record of the proceedings (Exhibit 3) and listed nine incidents or items appearing in both which I found to be substantially constituting a fair and accurate summary of what actually took place on 22/ 12/87 in the Chief Magistrate’s Court 1, Jos.
I have also examined the question of the 6 items of inaccuracies detected by the learned trial Judge which he found to be inconsequential and unlikely to affect the substantiality of the publication. The Court of Appeal agreed with him and restated briefly as quoted above, the substance of the allegation as contained in the publication and concluded that –
” … discrepancies are minor and are of no consequence and do not disentitle the respondents from the plea of qualified privilege.”
I have carefully gone through the decided cases referred to the court by the learned counsel for the appellant and found none of them useful in supporting the contention of the learned counsel.
From the above findings, I have inevitably come to the conclusion that the publication in Exhibit 1 complained of by the appellant is in substance, a fair and accurate report of what took place in court as recorded in Exhibit 3. I so find.
The fact that the publication is fair and accurate in substance, does not automatically make it privileged. The privilege is not absolute but qualified and can easily be defeated by malice. In the Oxford Advanced Learners Dictionary “Malice” is defined as “the desire to harm; hatred for”. And in Gatley on Libel and Slander, 11th Edition, the learned authors in dealing with malice under paragraph 16.4 on page 428 wrote:-
“Malice means making use of the occasion for some indirect purpose. If the occasion is privileged, it is so for some reasons, and the defendant is only entitled to the protection of the privilege if he uses the occasion for that reason. He is not entitled to the protection if he uses the occasion not for the reason which makes the occasion privileged, but for an indirect or wrong motive”.
Therefore, before the qualified privilege of the publication is destroyed, it must be proved expressly or by some evidence from which to infer that the publication was for a purpose or motive other than its privileged occasion. See Williams v. Daily Times (1990) 1 NWLR (Pt. 124) 1 at 50-51; Atoyebi v. Odudu (1990) 6 NWLR (Pt. 157) 384; Clark v. Molyneux (1877) 3 Q.B.D. 237 at 246; Groom v. Crocker (1939) 1 KB 194 at 206 – 207.
While the onus of proving that the report of publication is fair and accurate lies on the defendant, the burden of proving malice rests solely on the plaintiff-in this case, the appellant. There was no evidence of malice in this case and nothing to infer that from. In fact, the author of the publication, D.W. 2 asserted in his cross-examination, that he believed in the truth of the publication. There was no evidence to show what other interest or motive the author had in making the publication or report in the 1st respondent’s newspaper except to give information to the public which as a reporter, he has a duty to do. Therefore in my respectful view, as long as the publication was made bona fide and without actual malice, it is privileged. See Searles v. Scarlett (1882) 2 QB 56 at 60; Kimber v. Press Association (1893) 1 QB 65 at 72; Amiekhai v. Okwilage (1962) 2 All NLR.
From all what I have said above, I find that the publication complained of was a fair and accurate report of judicial proceedings of 22/12/87 in Chief Magistrate’s Court 1, Jos, and that in the circumstances of this case, it enjoys the protection of being privileged. I answer both issues against the appellant.
It should be noted here that there are concurrent findings of fact by the trial court and the Court of Appeal. It is trite law that this court will not interfere with such findings where there is sufficient evidence in support of such findings and where no substantial error is apparent on the record such as miscarriage of justice or violation of some principles of law or procedure. See Ezeonwu v. Onyechi (1996) 3 NWLR (pt. 438) 499 at 526; Ivienagbor v. Bazuaye (1999) 9 NLWR (pt. 620) 552 at 559 Ogunbiyi v. Adewunmi (1988) 5 NWLR (pt. 93) 215. I find no such error, miscarriage of justice or violation of principle of law or procedure in this case and see no ground to interfere with the decisions arrived at by those courts in this appeal.
In the circumstances, I find that there is no merit in this appeal. I dismiss it and affirm the decision of the Court of Appeal made on the 17th February, 1994.
I award N10,000.00 costs against the appellant in favour of the respondents.
SC.168/1994