S. B. Bakare v. Alh Abo Ibrahim (1973)
LawGlobal-Hub Lead Judgment Report
IBEKWE, AG. J.S.C.
The plaintiffs claim before the Lagos High Court in Suit LD/618/68 was for “damages for libel” contained in a newspaper known as the “West African Pilot” of 29th August, 1968 printed and published by the 2nd defendants, at the instance of the 1st defendant.
By his statement of claim the plaintiff (herein respondent) alleged that the defendants defamed him in that they falsely and maliciously printed and published of and concerning him the plaintiff, the words following which are set out in paragraphs 10, 11 and 12 of the statement of claim:
- In the issue of 2nd defendant’s newspaper, the West African Pilot, of 29th August, 1968 the defendants falsely and maliciously printed and published of and concerning the plaintiff on the front page the following words, that is to say
WARNING
IT HAS COME TO MY NOTICE THAT ONE ALHAJI ADO IBRAHIM OF 17 MARTINS STREET, LAGOS, AND OF 15 THORBURN AVENUE, YABA, LAGOS, TRADING UNDER THE NAME STYLE OF ADO IBRAHIM AND COMPANY LIMITED (AICO GROUP OF COMPANIES) HAS BEEN SOLICITING WITH MEMBERS OF THE PUBLIC INVITING THEM TO BUY SHARES IN “KIFI LIMITED” OF 18 RHODES CRESCENT, APAPA, LAGOS. MEMBERS OF THE PUBLIC ARE HEREBY WARNED, IN THEIR OWN INTERESTS, THAT NEITHER MYSELF, AS THE CHAIRMAN OF THE BOARD OF DIRECTORS, NOR ANY ACCREDITED MEMBER OF THE SAID KIFI LIMITED DID AUTHORISE THE SAID ALHAJI ADO IBRAHIM TO SOLICIT FOR SHARES ON BEHALF OF “KIFI LIMITED.” ANY PERSON, PERSONS, OR COMPANIES WHO NEGOTIATE OR BUY SHARES FROM THE SAID ALHAJI ADO IBRAHIM DOES SO AT HIS, HER OR THEIR OWN RISK.
CHIEF S. B. BAKARE,
Chairman,
Board of Directors, Kifi Limited
- By the said words the defendants meant and were understood to mean that the plaintiff has no connection whatsoever with Kifi Limited, that the plaintiff had fraudulently solicited monies from the public pretending that he was connected with the said Kifi Limited; whereas his business connection was only with Ado Ibrahim Ltd., and that the plaintiff intended to keep monies thus fraudulently collected to himself and that the plaintiff was out to cheat the public. The plaintiff relies, for the said meaning on the natural and ordinary meaning of the said words.
- By reason of the premises the plaintiff has been much injured in his credit and reputation and in his character as a company director and has been brought into public scandal, odium and contempt AND THE PLAINTIFF CLAIMS 50,000 pounds DAMAGES.”
The defendants (herein appellants) by their defence admitted publication of the words set out” in the statement of claim, but put forward a plea of “fair comment” in the form of a rolled-up plea; they also supplied particulars of the facts upon which they rely in their defence of fair comment.
The relevant portions of the statement of defence are as follows:
‘5. The defendants admit writing and publishing the publication complained of.
- The defendants aver that in so far as the words complained of in the statement of claim consist of statement of fact the said words are in their natural and ordinary meaning and without the alleged meanings averred in paragraph 11 of the statement of claim true in substance and in fact; and in so far as the said words consist of expressions of opinion they are fair comment made in good faith and without malice upon the said facts which are a matter of public interest.
Particulars;
(i) The plaintiff, in fact solicited contributions from members of the public to buy shares in Kifi Limited.
(ii) The plaintiff, in fact, had no authority from the board of directors of Kifi Limited to solicit for such contributions.
(iii) The plaintiff, in fact, told those to whom he appealed for contributions that the first defendant was the chairman and a share-holder in the said Kifi Limited.
(iv) The plaintiff at no time told the first defendant of plaintiff’s activities in collecting funds from the public and making use of first defendant’s name for the purpose.
(v) The plaintiff gave no account whatever of his activities to the first defendant or to the board of directors of Kifi Limited.”
The plaintiff did not deliver a reply alleging “express malice”. We shall later on in this judgment revert to this omission on the part of the plaintiff to serve a reply.
The facts are straightforward. The plaintiff is a director of a limited liability company known as Kifi Ltd., and the 1st defendant is the chairman of the said company, the second defendants are the printers and publishers of a newspaper known as the “West African Pilot”. As could be seen therefore, pleadings were ordered and filed, and at the trial, the following exhibits were admitted by consent:
(a) Memorandum and Articles of Kifi Ltd. as exhibit B. (b) Particulars of directors of Kifi Ltd. as exhibit C. (c) Certificate of incorporation of Kifi Ltd. as exhibit D.
The plaintiff gave evidence and called one witness. The 1st defendant and two other witnesses testified for the defence. As emerges from the pleadings, this action originated from a warning published by the 1st defendant in the 2nd defendants’ newspaper, the West African Pilot, alleging that the plaintiff was soliciting and inviting members of the public to buy shares in the Kifi Ltd., and that he, plaintiff, was doing so without the knowledge and consent of the board of directors and that, whoever buys the shares, does so at his or her own risk.
Like every other private company, Kifi Ltd., has its Memorandum and Articles of Association.
Article 1 (b) of the Memorandum and Articles of Association of Kifi Ltd. reads as follows:
“Any invitation to the public to subscribe for any shares or debentures or debenture stock of the Company is hereby prohibited.”
Whilst article 7 of the same Memorandum and Articles of Association provides thus:
“Unless otherwise determined by the Company in General Meeting any shares shall, before they are issued, be offered to the members in proportion, as nearly as may be, to the number of shares held by them . . . The Directors may dispose of any shares not accepted by the existing members in such manner as they think most beneficial to the Company.
At the conclusion of the hearing, the learned trial judge reviewed and summarised the evidence before him. He went carefully into the case presented by either side and after considering the plea of fair comment set up by the defendants, he arrived at the following conclusion:
“It has been proved true that the plaintiff solicits for purchase of shares of Kifi Ltd., from members of the public and that he has not been authorised to do so by the Board of Directors of the Company. It is true also that the publication omitted to state that the plaintiff is connected with Kifi Ltd., in any shape or form. But when these are taken together, it is my view that the facts in the publication have been proved to be substantially true, because the facts in the publication are;
(a) the plaintiff solicits for shares in Kifi Ltd., from members of the public;
(b) that he does this without the authority of the Board of Directors. ”
We think that there is ample evidence to justify this finding made by the learned trial judge. To sustain their defence, it was not necessary for the defendants to prove the truth of every allegation of fact contained in “the particulars. As was stated by Lord Porter in Kemsley v. Foot [1952] A.C. 345, at page 358:
“In the present case, for instance, the substratum of fact upon which comment is based is that Lord Kemsley is the active proprietor of and responsible for the Kemsley Press. The criticism is that that press is a low one. As I hold, any facts sufficient to justify that statement would entitle the defendants to succeed in a plea of fair comment. Twenty facts might be given in the particulars and only one justified, yet if that one fact was sufficient to support the comment so as to make it fair, a failure to prove the other nineteen would not of necessity defeat the defendant’s plea. ”
In the present case, the defendants went as far as establishing all but one of the facts set out in the particulars in support of their defence. As found by the learned trial judge, “the facts in the publication have been proved to be substantially true. ” In view of that finding by the learned trial judge, it seems to us that the alleged falsity of the publication has been refuted, and as such, the presumption of malice in plaintiffs favour has been rebutted. In that event, the plea of “fair comment” should have succeeded.
But, for one reason or another, the learned trial judge proceeded to consider the effect of “express malice” on the defence, an issue which in no way was ever raised on the pleadings. It is true that, in his statement of claim the plaintiff averred in the usual form that the defendants “falsely and maliciously” printed and published of and concerning the plaintiff, the words complained of. But such averment merely raises a reputable presumption of malice in law, in favour of the plaintiff.
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. According to Brett L.J. in Clark v. Molyneux (1877) 3 Q.B.D. 237, at page 247:
“If a man is proved to have stated that which he knew to be false, no one need enquire further. Everybody assumes thenceforth that he was malicious, that he did do a wrong thing for some wrong motive.”
The law in its wisdom insists that words which are capable of leaving a stain on the reputation of another should not, in the absence of lawful excuse, be uttered or published of and concerning a person. 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.
We think it is necessary to stress here that the word “maliciously”, as usually pleaded in defamation actions, has a technical meaning. We think that in pleadings, sufficient care should be taken to draw a clear distinction between this “technical malice”, if we may say so, and actual malice. In our view, each has a definite place in the pleadings, and each also has a distinct role to play at the trial. It should always be borne in mind that, once the plea of fair comment or qualified privilege is made out, as it has been in the present case, 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 this 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.
As we have stated, the learned trial judge in his judgment adverted to the issue of “express malice” (which, on the pleadings, was not before him) and found as a fact that the defendants were actuated by malice. From this decision of the learned trial judge the defendants have appealed to this Court.
Arguing the only ground of appeal (the omnibus ground) which was filed before us, Chief F. R. A. Williams, learned counsel for the appellants, submitted that there was no evidence to justify the finding of “malice” made by the learned trial judge. After drawing our attention to the fact that the plaintiff did not deliver a reply after the statement of defence containing a plea of fair comment had been served on him, Chief Williams contended that as “express malice” was not an issue on the pleadings, the learned trial judge erred in considering the matter at all. Finally, Chief Williams submitted that as there was no evidence of malice before the Court, the learned trial judge misdirected himself in holding, as he did, that “express malice is proved and the plea of fair comment is defeated.”
Replying Mr. L. V. Davis, learned counsel for the respondent, after conceding that no reply was indeed delivered by the plaintiff, and urged it upon us to ignore the omission and to uphold the judgment of the learned trial judge. At first, learned counsel for the respondent had contended that it was not necessary for the plaintiff to deliver a reply alleging express malice, but he eventually applied for leave to amend his pleadings by filing a reply, alleging “express malice”. We refused this application of Mr. Davis, as we do not see how we could really entertain or allow it at that stage. It was not in the strict sense an application to amend; rather, it was an application to file and serve on the defendants a reply at that very late stage in the proceedings. In our view, it would have been inequitable to grant this application. The plaintiff should have made it in the court below.
As Chief Williams quite rightly pointed out, if the application were to be allowed, it would entail having to call, or recall witnesses, on the part of the plaintiff. And the interest of justice demands that the defendants should also be afforded the opportunity to cross-examine such witnesses.We are decidedly in support of the well-known rule of pleading and practice that, in an action for defamation, where it is intended to allege express malice in answer to a plea of fair comment or qualified privilege, it is necessary to deliver a reply, giving particulars of the facts from which express malice is to be inferred. And since express malice defeats the plea of fair comment or qualified privilege, we think it is only fair and indeed, quite in keeping with the principles of justice, that the defendant, whose defence is fair comment or qualified privilege, ought not to be exposed to any kind of surprise. Moreover, it is evident that “malice” has a wide meaning, and is perhaps incapable of complete definition.
In its generally accepted sense, malice means “spite or ill-will”. But in law, malice means more than that. In defamation cases, the dicta and decisions dealing with malice are broad in their scope. To mention just a few:-In Dickson v. Earl of Wilton (1859) 1 F. & F. 419 at page 427, Lord Campbell said: “any indirect motive, other than a sense of duty, is what the law calls ‘malice’.”
In Turnbull v. Bird (1861) 2 F. & F. 508 at p. 524, Erie C. J. put it thus:-“Malice means any corrupt motive, any wrong motive, or any departure from duty.” Also in Brown v. Dunn, (1893) 6 R. 67 at p. 72, Lord Herschell said: “Malice means making use of the occasion for some indirect purpose.” Again, in Stuart v. Bell [1891] 2 Q.B. 341 at p. 351, the point was stated by Lindley L.J. as follows: “Malice, in fact, is not confined to personal spite and ill-will, but includes every unjustifiable intention to inflict injury on the person defamed.”
As we have said earlier on, “technical malice” otherwise known as malice in law is always presumed in the plaintiffs favour. While “express malice”, otherwise known as malice in fact, is never presumed, it must be proved by evidence. In our view, therefore, it is equitable to expect that just as the defendants (as in this case) are required to give particulars of the facts on which the plea of fair comment is based, so also is the plaintiff (where he intends to defeat such defence of fair conunent) obliged to deliver a reply alleging malice against the defendants, and setting out particulars of the facts from which actual malice may be inferred.
The case of Dawson v. Dover and County Chronicle Limited (1913) 108 L.T. 481 at p. 484, is in point. In that case the plaintiff claimed damages for an alleged libel contained in the defendants’ newspaper. The defendants pleaded (1) fair comment, and (2) privilege. The plaintiff did not deliver a reply alleging express malice. He sought to interrogate the defendants:
(a) as to whether they had been requested to attend a certain meeting, (b) as to whether they had been paid remuneration for reporting the proceedings. Bailhache J. at chambers, affirming the master, refused to allow the interrogatories. The Court of Appeal upheld the decision, and Vaughan Williams, L. J. in his judgment said:
“The pleadings, it will be observed, do not on the face of them raise the question of express malice . . . I think that the case would have been different if the plaintiff had replied express malice, but he has not done so; in fact, express malice is not an issue on the pleadings. ”
We also agree with learned counsel for the appellants that in the present case, “express malice” was not an issue on the pleadings; and that being the case, we hold the view that the learned trial judge should not have gone into it at all.
There is yet another angle to this case. As we indicated earlier on in this judgment, the learned trial judge did find that the facts alleged in support of the plea of fair comment had been substantially proved to be true.
That in effect means that the presumption of malice had gone, and the defence of fair comment should stand, unless actual malice could be established against the defendants. Obviously, the burden of establishing “express malice” rested squarely on the plaintiff, and at no time did it shift to the defendants; nor was it ever discharged. On the whole, we fail to see how the plaintiff can succeed on this score.
In this connection, we draw support from the stand taken by the House of Lords in the case of Esso Petroleum Co. Ltd. v. Southport Corporation [1956] A.C. 218 where at p. 237, in his judgment Earl Jowitt said:
“In the present case every allegation of negligence has been answered by the finding of the judge, and there was no allegation of unseaworthiness.
That being so, I do not think that the present appellants, the owners of the Inverpool, can be held responsible because they did not negative some possible case which had never been alleged against them in the pleadings or made against them in the course of trial.”
And in his own judgment, at p. 239, Lord Normand had this to say:
“I wish to associate myself with the observations of my noble and learned friend, Lord Radcliffe, on the value of the pleadings. To condemn a party on a ground of which no fair notice has been given may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded.”
We are satisfied that, in the case before us, the allegation of malice in law has been negative by the findings of the learned trial judge; and evidently, there was no proof of express malice. In the circumstances, we are of the opinion that the learned trial judge erred in holding that the 1st defendant was actuated by express malice-an issue which was never raised on the pleadings. We see no reason to hold otherwise.
For the reasons we have given, we will allow this appeal. The appeal succeeds and is allowed. We order that the decisions of the High Court, Lagos State in Suit No. LD/618/68, in so far as it awarded judgment to the plaintiff, and in so far as it ordered the defendants to pay the costs of the action to the plaintiff, is hereby set aside. We order that the plaintiff’s case be dismissed with costs and this shall be the judgement of the court.We further order that the plaintiff shall pay to each defendant the costs fixed in this court at N170 and in the High Court at N100.
Appeal allowed; plaintiff’s case dismissed.
Other Citation: (1973) LCN/1686(SC)
