IN THE COURT OF APPEAL ENUGU JUDICIAL DIVISION HOLDEN AT ENUGU ON THURSDAY THE 7TH DAY OF DECEMBR, 2017 BEFORE THEIR LORDSHIPS:
JUSTICE HUSSEIN MUKHTAR; JUSTICE MUHAMMED L. SHUAIBU, JUSTICE FREDERICK. O. OHO
APPEAL NO: CA/E/13/2013
DR. B.A.N. NWAKOBY – APPELLANT
1. EMEKA MAMAH
2. VANGUARD MEDIA LTD
3. GBENGA ADEFAYE — RESPONDENTS
The Appellant was the Chief Medical Director of the University of Nigeria Teaching Hospital, Enugu. The appellant and 4 others were charged to the Enugu Magistrate Court for stealing in charge No. ME/75C/2002 before Magistrate P .I. Enejere. The case came up before the Magistrate Court on 26/3/2002, 9/3/2002 and 10/4/2002 but same was struck out upon entering of a nolle prosequi by the Attorney-General of Enugu State.
On page 8 of the Vanguard Newspaper of Wednesday, the 3rd day of April, 2002, under heading – “Chief Medical Director, others docked for stealing.”The said publication is contained in Exhibit “A”
(DELIVERED BY MUHAMMED L. SHUAAIBU, JCA)
I have considered the various formulations as well as the submission of the counsel in respect of same; it is however my considered view based on the record, that the 1st and 2nd issues formulated for the Respondents, if compressed can comprehensively accommodate all the remaining issues in the two briefs. They are concise and apposite to the just determination of the appeal.
In an action for libel, the onus is on the plaintiff to show that the published word complained of are defamatory or that they conveyed a defamatory imputation. However, where the words complained of are defamatory in their natural and ordinary meaning, the plaintiff has no legal duty to lead any evidence to show additional defamatory meaning as understood by persons possessing some particular facts.
In the instant case, the caption in Exhibit “A” is Chief Medical Director, others “Docked” and “Arraigned”. The appellant while testifying as PW1 at page 40 of the record of appeal said “the defamatory matter I am complaining is that my name appeared in the Newspaper I know nothing about.”
Learned Appellant’s counsel has argued that the entire stories published were not true as a reasonable man in the street does not have the opportunity to inquire further to know whether the person in question actually appeared in court for the arraignment or not. Thus, the publication referred the Appellant as somebody capable of stealing and not worthy of holding a public office.
There is no denying the fact that there was a valid criminal proceeding pending at the material time of the said publication against the Appellant. The Appellant may not have been formally arraigned but was represented by a lawyer when the charge was mentioned in court as evident in Exhibits B – B2. Therefore, the charge was the basis for the publication and the said publication was only a report on the charge sheet in the language of a reporter. A publication in a newspaper is not defamatory if it is an accurate and fair report of what transpired, and it need not be verbatim or word for word. If what is stated is substantially a fair and accurate account of what is sought to be conveyed, then the statement cannot be said to be defamatory. See OLOGE –V- NEW AFRICAN HOLDINGS LTD .
I am therefore in agreement with the finding of the learned trial judge that the message the said publication conveys to the readers is that the person named in Exhibit “A” were charged to court for alleged offences of conspiracy and stealing and no more. And the fact that the Appellant was not present in court when the charge was read does not obviate from the fact that he was so charged. The test of the defamatory meaning is the impression the words of publication, taken as a whole, would convey to the reasonable reader presumed not naïve, but capable of reading between the lines and not unduly suspicious so that he would choose a defamatory meaning over a non-defamatory meaning.
The next germane issue is whether the defence of fair comment and qualified privilege avails the Respondents in the instant case. In UGO –V- OKAFOR (1996) 3NWLR (Prt 438) 452; it was held that for a comment to be regarded as fair, the following conditions must to be satisfied – It must be based on facts truly stated, It must not contain imputation of corrupt or dishonorable motives on the persons whose conduct or work is criticised save in so far as such imputation are warranted by the facts, It must be the honest expression of the writers’ real intention.
The essential elements for the defence of qualified privilege on the other hand are:-
The privileged occasion must be fit; The matter which is subject of the action must have reference to the occasion, and It must be published from right and honest motives. The burden is on the plaintiff to prove that the publication was not based on right and honest motive. The distinctive feature of the two is that the defence of fair comment permits untrammelled discussion of matters of public interest with impunity. One principal safeguard of the reputation of the citizen in regard to the defence of fair comment is that facts must be distinguished and that facts commented upon must not be invented or distorted but must be real and founded in truth. But in defence of qualified privilege, the defamatory matter need not be true provided there is not such recklessness as would be indicative of malice. See NTA –V- BABATOPE(1996) 4 NWLR (Prt 440) 75 at 100. I have found elsewhere in this judgment that the publication in Exhibit A is fair and accurate account of what transpired at the Magistrate Court when the charge, the basis of the publication was read. And that the publication was only a report on the charge.
The decision of this court above is no doubt in tune with the correct legal position; however the said principle applies where the court found the publication defamatory. But once the words or publication complained of as in the instant case, has been found not to be defamatory, the occasion in which the words were published or the publication was made becomes very irrelevant. There was indeed no basis for the trial court, having rightly found, in my view, that the publication in Exhibit “A” was not defamatory to even consider the defence of qualified privilege.
In conclusion, I find no merit in this appeal and it is hereby dismissed with costs assessed at N60,000 against the Appellant and in favour of the Respondents.
MUHAMMED L. SHUAIBU, JUSTICE, COURT OF APPEAL.
APPEARANCES: Fidelis Mbadugha (with James Nwanyanwu): Appellant,
G.U. Moneke (With Joe Ezeh): Respondents.