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Defamatory publication becomes irrelevant when action cannot be proved

FACTS
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.

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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” and it read thus:

“The Chief Medical Director of the University of Nigeria Teaching Hospital (UNTH) Enugu, Dr. B. A. N. Nwokoby has been arraigned before an Enugu Chief Magistrate Court charged with stealing.
Charged along with him were the Zonal Manager of the National Insurance Corporation of Nigeria (NICON) Mr. Jonathan Obas, Assistant Director of finance, UNTH, Mr. Ferdinand A. Maduka, the UNTH cashier, Mr. Maxwell Ezepue and a representative of NICON at UNTH, Mr. Boniface Ekula.”

According to the prosecution, the accused persons were said to have conspired among themselves and stole N839, 797.66 belonging to NICON thereby committing an offence punishable under Section 353(12) of the Criminal Code, Cap 36 Volume 1 Laws of Anambra State of Nigeria as applicable in Enugu State.

The said amount represented the accruable money to NICON as insurance premium from UNTH.

It was said that the money was paid in cash on or about November 3, 2000, to the fifth accused person, Boniface Ekula who was NICON’S representative to UNTH for onward transmission to NICON but the amount did not get to the insurance company hence the matter was referred to the police.

Following this development, the police was said to have spread their dragnet and arrested Mr. Ekula who allegedly implicated the rest of the accused persons.

No plea was taken when the accused persons appeared before the Chief Magistrate, Mrs. P. I. Enejere but court adjourned the matter indefinitely and referred the case file to the Director of Public Prosecution (DPP) for necessary action.”

Sequel to the above; the appellant instructed his solicitors to write to the Respondents to retract the said publication as same was untrue. The Appellant vide Exhibit C; a letter ref. No. 12/02 dated 22nd July, 2002 demanded an apology and retraction of the story. The respondents refused to act and the Appellant took out a writ of Summons against them, but the claim was dismissed and hence this appeal.

HELD:
On the nature of the tort of libel.
The tort of libel is committed through the publication of defamatory words in writing. It is a tort in which the writer or publisher attacks the reputation, integrity, standing and /or fidelity of the victim of the publication.

On what plaintiff must prove to sustain action for libel: To sustain an action for libel, the plaintiff must prove the follow:- The publication was in writing; The publication was false; The false publication was made to a person apart from the plaintiff and the defendant; The publication referred to the plaintiff and was defamatory of the said plaintiff; The publication was made by the defendant, and That there are no justifiable legal grounds for the publication of the words.

See ILOABACHIE -V- ILOABACHIE (Supra) and OLOGE – V-NEW AFRICA HOLDINGS LTD(2013) 17 NWLR(Prt 1384) 449.
On what a defamatory statement is: A defamatory statement has been defined in OLAGE –V- NEW AFRICA HOLDING LTD (Supra) as a statement which tends to:-
a. Lower the claimant in the estimation of right thinking members of society generally, or
b. Expose him to hatred, contempt or ridicule,
c. Cause other persons to shun or avoid him, or
d. Discredit him in his office, trade or profession, or
e. Injure his financial credit.

On the onus on plaintiff to prove that the published words are defamatory: 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.

On whether an accurate and fair report in a newspaper is defamatory: 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 (Supra)

On the essential elements of the defence of qualified privilege: 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.

On the burden on a plaintiff faced with the defence of qualified privilege: The burden is on the plaintiff to prove that the publication was not based on right and honest motive.

On the distinction between the defence of fair comment and that of qualified privilege: 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.

On whether a consideration of malice or qualified privilege is necessary where a court finds the published words not defamatory: 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.
JUDGMENT
(DELIVERED BY MUHAMMED L. SHUAAIBU, JCA)


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