In The Supreme Court of Nigeria
On Friday, the 5th day of October 1990
Ademola Atoyebi ...... Appellant
William Odudu ....... Respondent
Judgment of the Court
Olajide Olatawura. J.S.C.
When this appeal came before us on 9th July, 1990, l allowed the appeal and indicated that the reasons for allowing the appeal would be given today. I now give my reasons.
The appellant who was the plaintiff sued the respondent, the defendant in the High Court of Kwara State, claiming the sum of Seventy Thousand Naira (N70,000.00) as Special and General Damages for "words falsely written and circulated at Ilorin in Kwara State of Nigeria in a Circular dated 15th August, 1979 titled "DISCLAIMER" addressed to all practising Estate Surveyors in Ilorin by the defendant to the discredit of the plaintiff and which circular the defendant meant to and, which does in fact, refers (sic) to the plaintiff, as a result of which the plaintiff has been greatly injured in reputation, and has been brought into public scandal, ridicule and contempt."
In his Statement of Claim dated 2nd day of January, 1980 and filed on 4th January, 1980 the plaintiff averred as follows:-
1. That plaintiff is a reputable Chartered Surveyor, Estate Agent and Valuer and was formerly a Senior Estate Surveyor and Valuer with the defendant.
2. The plaintiff resides at No.17 Yoruba Road, Ilorin.
3. The defendant is also Chartered Surveyor, Estate Agent and Valuer and the Managing/Senior Partner of Odudu & Co., a firm of Chartered Surveyors carrying on business at 124 Ibrahim Taiwo Road, Ilorin.
4. The plaintiff was employed by the defendant on 31st August, 1976 and he was with the defendant until 13th August, 1979.
5. Between 31st August, 1976 and 13th August, 1979, the plaintiff rose from the post of an Assistant Estate Manager to that of a Senior Estate Surveyor, that is from an annual salary of N4,000.00 to that of N 6,500.00, having been promoted five times by the defendant for what the defendant always described as the "plaintiff's good performance."
6. The plaintiff will rely on his promotion letter of 31/8/76, 16/2/77, 24/8/77, 17/7/78 and 25/6/79 at the hearing of this suit.
7. On 17th March, 1978, the defendant promoted the plaintiff as Associate Member of his Firm. The promotion letter is hereby pleaded.
8. By a letter dated 13th August, 1979 and signed by the defendant, the defendant terminated the plaintiff's employment without notice and without giving the plaintiff an opportunity to defend himself on the unsubstantiated charges levelled against him (plaintiff).
9. By a circular dated 15th August, 1979, signed by the defendant, titled DISCLAIMER and to all Estate Surveyors and some other people in and outside Ilorin, the defendant falsely and maliciously wrote and communicated to the said Surveyors of and concerning the plaintiff and of him in the way of his occupation, the words following. that is to say. "That is to inform you that the appointment of Mr. A.A. Atoyebi, who was in our employment until 13th August. 1979, has been terminated for professional misconduct. (italics ours) Any person transacting business with him on our behalf does so at his or her own risk". The plaintiff hereby pleads the said circular.
10. The said words, particularly terminated for proffessiona1 misconduct in their natural and ordinary meaning meant and were understood to mean:-
(a) that the plaintiff, as a Chartered Estate Surveyor and Valuer, was a dishonest and dishonourable person who in the least should not be trusted as a Chartered Estate Surveyor and Valuer.
(b) That the plaintiff is unfit and/or incompetent to be trusted or employed to carry out any work as a Chartered Estate Surveyor.
(c) That the plaintiff has abused the confidence reposed in him by clients as a Chartered Estate Surveyor and Valuer.
(d) That the plaintiff is a man of dubious character who in the course of his professional calling has grown to be a cheat, a dupe and/or a fraud.
(e) That the plaintiff was of a dissolute and profligate character.
11. Further or in the alternative, the said words meant and were understood to mean:
(a) That the plaintiff, in the course of his employment with the defendant, was involved in some dirty deeds and/or deals unbecoming of a Chartered Estate Surveyor and Valuer.
(b) That the plaintiff has thrown overboard all the rules and/or professional ethics guiding the Institute of Chartered Surveyors and Valuers in Nigeria.
(c) That ( the plaintiff should be treated with suspicion by both co-professionals and clients since he is not a fit and proper person to be called a Chartered Estate Surveyor and Valuer .
(d) That an embargo should be placed on the plaintiff from operating or carrying out business as a Chartered Estate Surveyor and Valuer in and outside Ilorin since the plaintiff is a disgrace to the profession of Estate Surveyors and Valuers.
(e) That the plaintiff was unfit to associate with respectable persons.
12. The plaintiff will at the hearing of this suit rely on the circular addressed to Messrs Opaleye & Co., dated 15th August, 1979 and signed by the defendant.
13. Furthermore, the plaintiff pleads another memorandum dated 13th August, 1979 signed by the defendant and addressed to one Mr. D.O. Akinola, another Estate Surveyor in the employment of the defendant.
14. The defendant knew and believed the said words to be false but he only wanted to damage the plaintiffs reputation for some unsubstantiated and flimsy excuses.
15. The plaintiff will contend at the trial that throughout his 3 - year stay in the employment of the defendant, he was never given any query neither was he found wanting in the discharge of his duties by the defendant.
16. The said circular, particularly the words terminated for professional misconduct were calculated to and they did disparage the plaintiff in his said profession as a Chartered Estate Surveyor and Valuer.
17. In consequence of the said words, that is, terminated for professiona/ misconduct, the plaintiff has been greatly injured in his credit. character and reputation and in his said profession as a Chartered Estate Surveyor and Valuer and he has been brought into hatred, scandal, ridicule and contempt.
18. WHEREUPON the plaintiff claims against the defendant the sum of N70,000.00 being general damages."
In his Amended Statement of Defence the defendant averred as follows:-
1. The defendant will raise a preliminary objection during the trial of this Suit that the proper person had not been sued.
2. The defendant denies paragraph 1of the Statement of claim and while the defendant will put the plaintiff to its strictest proof during the trial of this Suit, the defendant will also contend that the plaintiff has never been a member of the Royal Institute of Chartered Surveyors (RICS)
3. The defendant is not in a position to admit or deny paragraph 2 of the Statement of Claim and will put the plaintiff to its strict proof at the trial of this Suit.
4. The defendant admits paragraph 3 of the Statement of claim only to the extent that the defendant is a Chartered Surveyor, Estate Agent and valuer as well as the Managing/Senior Partner of Odudu & Co. but the defendant denies that it carries on business only at No.124 Ibrahim Taiwo Road, Ilorin. The defendant will prove at the trial of this Suit that defendant carries on business also at (a) 5, Beirut Road, Kano (b) 15, Isheri Road, Ikeja, Lagos. (c) 25 Akpakpava Street, Benin City.
5. The defendant admits paragraph 4 of the Statement of claim.
6. The defendant admits paragraph of the Statement of claim only to the extent that the plaintiff's Salary was increased from N4,000.00 to N6,500.00between August, 1978 and August,1979 but the defendant will contend at the trial of this suit that increment of salary does not ipso facto amount to Promotion and the defendant will put the plaintiff to its strictest proof at the trial of this suit.
7. The defendant is not in a position to admit or deny paragraph 6 of the Statement of Claim and will therefore put the plaintiff to its strictest proof at the trial of this suit.
8. The defendant denies paragraph 7 of the Statement of Claim and will put the plaintiff to its strict proof at the trial of this suit.
9. The defendant admits paragraph 8 of the Statement of Claim only to the extent that the defendant wrote a letter to the plaintiff in which the defendant terminated the plaintiff's appointment,but the defendant will contend at the trial of this suit that the plaintiff's appointment was terminated as a result of misconduct The defendant will prove the misconduct of the plaintiff through a letter written by Akinola to the plaintiff dated 9.45 a.m. on 14/8/79 as well as all other malpractices by the plaintiff such as the following which the defendant will rely on at the trial of this Suit.
(i) Between June & July, 1979 the plaintiff met one Mr. Seith Maiyekogbon of Alma Industrial and Managing Consultant of 147 Ibrahim Taiwo Road, Ilorin to canvass for jobs for himself personally whereas the jobs should be for the defendant since the plaintiff was at the material time in the Employment of the defendant.
(ii) The said Seith Maiyekogbon knowing that the plaintiff was in the employment of the defendant at the material time refused to give the jobs being sought for from the said Seith Maiyekogbon by the plaintiff and the said Seith Maiyekogbon later reported the matter to the defendant.
(iii) As a result of the report lodged by the said Seith Maiyekogbon to the defendant, the defendant warned the plaintiff verbally but as the plaintiff did not change his dishonest act, the defendant wrote a letter to the plaintiff, terminating the plaintiff's appointment.
10. The defendant admits paragraph 9 of the Statement of Claim only to the extent that the defendant wrote a circular dated 15/8/ 79 to the Estate Surveyors and valuer in Ilorin but the defendant denies that that letter was false or malicious. The defendant will prove during the trial of this Suit that the Company of Estate Surveyors in Ilorin to whom the disclaimer was addressed have interest in receiving such information as they belong to the same Professional body with the plaintiff.
11. The defendant denies paragraphs 10 (a-c) 11 (a)-(c) of the Statement of claim and conversely, the defendant will contend at the trial of this Suit that the words terminated for Professional misconduct- complained of
(a) Did not bear and were not understood to bear (and were not capable of bearing or being understood to bear - the alleged or any defamatory meaning.
(b) The defendant was privileged as the person to whom the words were communicated to and the defendant have a common interest in the matter since they belong to the same Professional body.
(c) The defendant was justified in Communicating the said words to the people to whom they were communicated.
(d) The defendant wrote the words to protect his interest and business.
12. The defendant denies paragraphs 14,15,16, and 17 of the Statement of Claim and will put the plaintiff to their strictest proof. The defendant will also rely on the defences raised in paragraph 11 of this statement of defence for the defence of this paragraph.
13. The defendant denies being liable to the plaintiff in the sum of N 70,000.00 as general damages or in any sum whatsoever.
14. The defendant prays this Honourable Court to dismiss the plaintiff's claim as being vexatious frivolous and an abuse of the Court's process.
On 24th June, 1980 the learned Counsel for the defendant applied to withdraw paragraph 1 of the Amended Statement of Defence. It was accordingly struck out.
From the pleadings and evidence led there is not much in dispute. Evidence was given in line with the Statement of Claim filed. The plaintiff who is an Estate Surveyor and Valuer was originally employed by the defendant on 31st August, 1976. He worked for about 3 years until his appointment was terminated on 13th August, 1979 by the defendant. Between the date of the employment and the termination of his appointment his salaries were increased. On 25th June, 1979 he was promoted to the post of Senior Estate Surveyor and Valuer. Before his terminations of appointment he had no query of any kind and in fact his last salary was N 6,500.00 per annum. After the termination of his employment he started to look for job in the course of which he approached one Mr. Opaleye for employment. Mr. Opaleye was also formerly employed by the defendant. He (Mr. Opaleye) had earlier on left the defendant and set up his own practice as an Estate Surveyor and Valuer. It was Mr. Opaleye that showed him a letter written by the defendant headed "Disclaimer." Mr. Opaleye informed him that unless the circular letter headed "Disclaimer" was withdrawn by the defendant, he (Mr. Opaleye) would not employ him. He saw the contents of the Disclaimer which he said were untrue and false. He could not go further to approach any other person as he was ashamed of the serious allegations of professional misconduct levelled against him by the defendant. Under cross-examination he denied diverting the business meant for the defendant to other persons. He was sure that the disclaimer was sent to some of their clients such as Albaji Ojolowo,Maiye Engineering, Banks, Companies and some Ministries especially Ministry of Lands and Housing. He called 3 witnesses: Mr. Opaleye a Chartered Surveyor who tendered the Circular Letter titled "Disclaimer" and received in evidence as Exhibit 7, Mr. Benjamin Dadson Olle another Estate Surveyor and Valuer who was the acting Chief Lands Officer Kwara State and one Mr. Ezekiel Oladipo Toki a Chartered Estate Surveyor. All these witnesses were of the opinion that the plaintiff's reputation as a Surveyor was damaged as a result of the publication i.e. Exhibit 7.
The defendant gave evidence, he admitted appointing the plaintiff as "an associate." He said he trained him and paid him salary, and increments at various times. It was towards the end of 1978 he discovered he deteriorated in the performance of his duty as a surveyor for he was no longer devoting his time to the work in the office. He was reported by some of their clients. He also found him to be disloyal. As to whether he signed the Disclaimer i.e. Exhibit 7, the defendant said:-
I signed a letter of disclaimer because the plaintiffs appointment was terminated as a result of professional malpractices. I felt it was my duty as a Senior member of the Profession to inform my other Professional Colleagues and a few of our key clients. I informed Messrs Toki, Atta & Co., E.O. Opaleye & Co., and Messrs Lawrence and Moses all in Ilorin ..I sent the Notice to my Colleagues because the plaintiff is dishonest to my company and my colleagues have a common interest to protect the integrity of the profession.
He called two witnesses, Matthew Odudu (the defendant's brother) and Seith Abel Maiyekogbon. Both counsel addressed the court. After a meticulous review of the evidence led and a consideration of the submissions made, the learned trial Judge, Gbadeyan J. found in favour of the plaintiff and awarded him the sum of N10,000.00 as damages. It is against that judgment the defendant appealed to the Court of Appeal.
The Court of Appeal, Kaduna Division, set aside the judgment of the Court of first instance and dismissed the claim. The plaintiff who is now the appellant in this court has appealed to this court and with the leave of the court filed 5 amended grounds of appeal. They read as follows:-
(1) That the judgment is against the weight of evidence.
(2) That the Court of Appeal erred in law and in fact by holding that the respondent is covered "by the law of defamation relating to qualified privilege" on the ground that the appellant "was soliciting for valuation job of the nature D.W.2 normally passed to Odudu and Co.
Particulars of Error
(i) The purported job which the appellant solicited for with the D.W.2 was not meant for an Estate Surveyor.
(ii) The said job which the appellant purportedly solicited for with D.W.2 was not given to the respondent or that it was already completed before the appellant purportedly went to D.W.2's office.
(iii) D.W.2 is not a client of the respondent.
(iv) Exhibit 7 on which the appellant's complaint relates was not copied to D.W.2 by the respondent.
(3) The Court of Appeal erred in law by holding that the respondent could avail himself of the defence of qualified privilege.
(i) As between the respondent and his professional colleagues to whom copies of Exhibit 7 were sent to, they do not share any reciprocity of interest in any action that destroys the career of another colleague:
(ii) The respondent and the other people (beside Estate Surveyors) to whom Exhibit 7 was copied do not share any corresponding interest in the profession of Estate Surveyors and Valuers.
(iii) No report of the appellant's purported professional; misconduct was lodged with the Institution of Estate Surveyors and Valuers.
(4) The Court of Appeal misdirected itself in law by holding (relying on Bakare & Another V. Aihaji Ado Ibrahim (1973) 6 S.C.205) that if counsel for the appellant wanted to establish malice in fact he ought to have filed a reply to that effect.
(a) It had inter alia held (per Akpata, J.C.A.) that "I wish to state emphatically that I cannot hold as a fact that the respondent committed professional misconduct."
(b) It is shown on the pleadings and evidence that the respondent sent copies of Exhibit 7 to some individuals and institutions who are not Estate Surveyors and the Court of Appeal agreed that this might be evidence of malice.
(c) The publication being complained of, to wit, Exhibit 7 is false and unjustified and the learned trial Judge so found.
(d) In Bakare v. Ibrahim supra the Supreme Court held that if a publication is shown to be false, malice is inferred by operation of law.
(e) After alleging that Exhibit 7 is false and/or without any lawful excuse in both his statement of claim and evidence, the appellant was not required to file any reply to the statement of defence alleging malice.
(5) The Court of Appeal erred in law and in fact when it held as follows:-
The fact remains however that the appellant honestly believed that the respondent committed professional misconduct. It has not been disputed that the appellant terminated the appointment of the respondent for professional misconduct. The respondent did not tender in evidence the letter terminating his appointment for obvious reason.
Particulars of Error
(i) The only reason on record while the respondent "believed" that the appellant committed professional misconduct is traceable to the evidence of D.W.2 and there are no good other reasons for his so believing.
(ii) Exhibit 7 was not communicated to D.W.2.
(iii) The other purported reason which made the respondent B believe that the appellant committed professional misconduct, to wit, "Exhibit D2 rejected" was not, in the Court of Appeal's opinion, relevant to the respondent's case.
(iv) Since the plaintiff appellant was not suing for termination of appointment, the letter terminating his appointment was/is not relevant.
(v) In the alternative to sub-paragraph iv supra the onus was on the respondent to tender the purported letter terminating the appellant's appointment for professional misconduct.
The crucial issue in the appeal is whether the Disclaimer Exhibit 7 published by the respondent was defamatory. Disclaimer in its ordinary meaning means denial or renunciation. It is now almost a daily publication in our National Dailies. Published ordinarily in respect of anybody, it is to show that the person should no longer be associated with a particular office or his place of work. The Disclaimer i.e. Exhibit 7 reads:-
This is to inform you that the appointment of Mr. A.A. Atoyebi, who was in our employment until 13th August, 1979 has been terminated for professional misconduct. Any person transacting business with him on our behalf does so at his or her own risk.
The appellant had no quarrel with the simple fact of termination of appointment, but was piqued by the reason stated i.e. "for professional misconduct." As said earlier he claimed the sum of N70,000.00 as general damages for libel contained in the Disclaimer which was circulated not only to members of his profession, it was also advertised in one of the Nigerian Dailies -Nigerian Herald. The respondent did not deny publishing Exhibit 7 but pleaded and relied on qualified privilege. In his address before the court of trial the learned Counsel who appeared for the defendant (the respondent in this court) and anchored his defences on:
(1) The words complained of did not bear and were not understood to bear and were not capable of bearing or being understood to bear the alleged or any defamatory meaning
(2) Justification to publish the words "Professional misconduct" complained of
(3) Qualified privilege.
The trial Court made some findings of fact which have not been attacked on appeal. In fact the lower court came to the same conclusions on these findings. The lower Court as per Akpata, J.C.A. (as he then was) in his lead judgment said:-
This appeal turns mainly on the legal defence of qualified privilege (sic) and the question of malice in an action for libel."
Having concluded that the defence was rightly raised and proved, the lower court did not, and rightly too, consider the ground which dealt with damages.
Briefs were filed. The appellant raised six issues but three are germane to this appeal. They are:-
1. Whether the defence of qualified privilege can avail the respondent herein.
2. Whether in order to establish malice the appellant ought to have filed a reply (to the Statement of Defence) when:-
(a) It was held by both the High Court and the Court of Appeal that the Appellant did not commit any professional misconduct.
(b) It was shown that the DISCLAIMER (Exhibit 7) is false.
3. Whether the failure of the appellant to file a reply giving particulars of malice in fact was raised before the Court of Appeal and if raised, whether it was fatal to his case when from the circumstances of this case, malice could and was actually inferred by operation of law.
Closely connected with the above issues the respondent raised issues which are almost similar:-
1. Whether the defence of qualified privilege can avail the respondent herein.
2. Whether the appellant ought to have filed a reply in order to establish malice.
3. Whether the failure to file a reply by the appellant and giving particulars of malice in fact was raised at the Court of Appeal, and if raised it was fatal to appellant's case when malice in law has been inferred by the trial court.
I will point out before the consideration of these issues that Exhibit D2 rejected by the learned trial Judge was ruled by the lower court to have been wrongly rejected. Exhibit D2 now forms part of the record of the appeal. It would however appear, notwithstanding its admission, not to have much hearing on the case or if it does its evidential value is minimal because the lower Court said:-
The appellant stated in his evidence that Exhibit D2 rejected was attached to a valuation report.
I cannot make much out of the rejected document. (italics mine).
In his oral submission, Mr. Wole Olanipekun the learned Counsel for the appellant adopted his brief: he pointed out and rightly too that Exhibits 7 and 8 uc the same though sent to different people. He contended that the lower court misinterpreted and misapplied the case of Bakare and Anor. V. Alhaji Ado Ibrahim (1973)6 S.C.205 in that the lower Court said that the appellant ought to have filed a reply if he had wanted to rely on malice and submitted that there was no qualified privilege established. The learned Counsel for respondent Mr. Akintoye relied on his brief.
I now come to the issue of qualified privilege. There must exist a common interest between the maker of the statement and the person to whom it is made. Reciprocity of interest is an essential element in the law of priviledge. Adam v. Ward (1917) A.C.309 at 334; White v. J & F Stone 2 K.B.827; Pullman v. Hill (1891)1 OB 524 at 528. The facts relied upon by the maker must he true; a mere belief will not sustain the defence.Hebditch y. Macllwaine (1894)2 Q.B. 54. The question then is: Was Exhibit 7 i.e. the Disclaimer, published so as to set in motion the disciplinary machinery which the statutory body charged with the discipline of members has? From the evidence of P.W.1, P.W.2 and P.W.3.,this is not the case. An allegation of professional misconduct implies an offence against the rules and practice of the particular profession. In this case the alleged misconduct can only be sustained after due investigation in which the appellant accused of professional misconduct was given an opportunity to defend himself. No person, not even a professional body, can be allowed to make such a grave accusation without due investigation. To ground such a grave accusation on reasonable belief of the person making the accusation is to give a licence to malign others. It is not unusual to deprecate a man's conduct but vilification should not form part of a disclaimer. Those who publish disclaimer should be cautious not to infringe on the rights of others. Where caution is thrown into the wind recklessness is enthroned. Exhibit 7 i.e. the disclaimer appears to me a reckless outburst of a disgruntled boss. There is ample justification for the learned trial Judge's findings:-
I find no evidence to convince me that the plaintiff engaged in any activity which would amount to a misconduct let alone professional misconduct. There is also no evidence whatsoever that the plaintiff has ever been queried by his employer or tried by any tribunal
This in my view is an implied rejection or disbelief of the evidence of D.W.2 Seith Abel Maiyekogbon. The finding of the trial Judge was confirmed by the Court of Appeal, per Akpata, J .C.A. (as he then was) when his Lordship said:-
I wish to state emphatically I cannot hold as a fact that the respondent committed professional conduct.
This in my view ought to have been the end of the matter in so far as qualified privilege is concerned. But the Court of Appeal based the success of the defence of qualified privilege on the honest belief of the respondent. The Court said:-
The fact remains however that the appellant honestly believed, and there are good reasons for his believing, that the respondent committed professional misconduct.
It would have been different if the report was made to a professional body. The conclusion of the Court of Appeal in my view contradicts the earlier statement quoted above. Such conclusion was based on the evidence of D.W.2 which was impliedly rejected. The lower Court relied very much on the case of Bakare and Anor. v. Alhaji Ado Ibrahim (supra) to reach the conclusion that absence of a reply was fatal in order to establish malice in fact. I will come to the ratio decidendi of this case later.
In the respondent's brief, Mr. Akintoye had virtually admitted that the proof required in any case where crime is alleged is proof beyond reasonable doubt. On page 5 of the appellants brief: 4.8 (in the lower Court) the learned Counsel said:-
It is admitted that the quasi-criminal nature of professional misconduct must be proved beyond reasonable doubt. Agreed, this must be tried and pronounced by the professional body trying it. Nevertheless this does not mean that it cannot be charged with professional misconduct before it is tried......
It is this allegation that formed the basis of Exhibit 7-the disclaimer which is the cause of action. Learned Counsel appeared to have overlooked the provision of s.137(1) of the Evidence Act which requires burden of proof beyond reasonable doubt the principle of a law earlier enunciated by the same counsel. Learned Counsel again relied on Exhibits Dl and D2 which were rejected but on which the Court of Appeal did not place much evidential value. It should be appreciated that honest belief in the commission of a crime to ground a conviction is not synonymous with the mandatory requirement of section 137(1) of the Evidence Act.
I now come to Bakare's case in so far as it affects the requirement of filing a reply by the plaintiff where the defendant relies on qualified privilege. On page 212 of the Report in Bakare's case the Supreme Court said:-
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."
In my view, the respondent in this appeal has failed to prove that he had lawful excuse for the publication. His reliance on DW2 is unhelpful to his defence. The case of Hulton v. James (191O) A.C.23/24 covers this point where Loreburn L.C. said:-
A man in good faith may publish libel believing it to be true and it may be found by the jury that he acted in good faith, believing it to be true, but in fact the statement was false. Under those circumstances he has no defence to the action however excellent his intention.
I agree with the submission of Mr. Olanipekun in his brief when he said:-
This finding of the trial Court as regards the presumption of malice in law was what the respondent attacked before the Court of Appeal and not that of malice in fact which the Court of Appeal based its judgment upon.
A Court should adjudicate on matters or issues properly submitted by the parties and not on matters not raised by the parties. The Court in that circumstance will be making a case for the parties.
Since the defence relied upon by the respondent has been proved to be false a defence of qualified privilege does not avail the respondent. Duyile & Anor. v. Kelly Ogunbayo & Sons Ltd. (1988)1 N.W.L.R. (Pt.72) 601.
On the whole the appeal succeeds. The judgment of the Court of Appeal dated 27th January, 1987 is hereby set aside. The judgment of the High Court dated 4th September, 1981 is hereby restored. Costs of the appeal in this Court is assessed at N 500.00. Costs in the lower court is assessed at N 300.00 in favour of the appellant.
Judgment delivered by
On the 9th day of July, 1990,1 allowed this appeal after hearing counsel's submission at the oral hearing and reading the briefs of argument together with the record of proceedings and judgment of the court below. I then reserved my reasons for the judgment till today.
I have since then had the advantage of reading in advance the Reasons for judgment just delivered by my learned brother, Olatawura, J.S.C. and I find his opinions on all the issues raised for determination in this appeal in perfect accord with mine. I therefore adopt them as my own. Those were the Reasons on which I based my judgment in allowing the appeal.
Judgment delivered by
On the 9th July, 1990, I summarily allowed the appeal of the appellant, after hearing oral argument from both counsel who relied and elaborated on their briefs of argument. I also had read the record of proceedings in this appeal. I stated then that there was considerable merit in the appellant's arguments, and that I would give my reasons for allowing the appeal on the 5th October, 1990.
I have read the reasons for judgment of my learned brother, Olatawura, J.S.C. in this appeal. I agree entirely with them and I adopt them as mine.
Judgment delivered by
This appeal was heard on the 9th of July, 1990 and allowed summarily. But I postponed the reasons for my judgment to today. I now give my reasons.
The appeal calls for a consideration of one of the usual defences in libel namely: QUALIFIED PRIVILEGE.
The action for libel arose in this way. The plaintiff, Ademola Atoyebi, a Chartered Surveyor, Estate Agent, and Valuer was employed in his professional capacity by the defendant. William 0. Odudu in his firm of F Odudu & Co., a firm of Chartered Surveyors carrying on business at 124, lbrahim Taiwo Road, Ilorin. Between 16th February, 1977 and 25th June, 1979 the plaintiff rose from the position of Assistant Estate Manager to that of a Senior Estate Surveyor as result of a series of promotions. On 13th Au-gust, 1979 the defendant terminated the appointment of the plaintiff. Following this, the defendant wrote a Disclaimer in these words.
This is to inform you that the appointment of Mr. A.A. Atoyebi who was in our employment until 13th August, 1979 has been terminated for professional misconduct. Any person transacting business with him on our behalf does so at his or her own risk.
This was circulated to all the Estate Surveyors in and around Ilorin, and a number of establishments including banks, and published in the "Nigerian Herald" Newspaper.
The plaintiff sued the defendant for libel and later filed his Statement of Claim. In the defendant's statement of defence he pleaded justification and privilege. After trial the learned Judge, Gbadeyan, J.,found for the plaintiff and awarded him a sum of N 10,000.00 as damages. On appeal to the Court of Appeal that court per Wali, Akpata, JJ.C.A. (as they then were) and Ogundare, J.C.A. reversed the decision and dismissed the plaintiff's case.
The plaintiff hereinafter called the appellant has appealed further to this Court. The defendant shall hereinafter be referred to as the respondent.
Parties have exchanged their briefs. I may mention that, although learned counsel for the appellant made some half hearted submissions on justification, that issue in fact is not, and cannot be, a life issue in this appeal. This is because the two lower courts found as a fact that the main sting in the publication, that is the imputation that the appellant has been found guilty of professional misconduct was not proved. It is indisputable that it is within the right and power of the professional body of both parties to try and find the appellant guilty of professional misconduct; that the respondent had not the competence so to do; that in case of such a trial strict proof is required; and that there was not the calibre and standard of evidence required for the proof thereof. In the circumstances, in so far as truth is the kernel of the defence justification in libel, it must be conceded that the defence failed in the above state of the facts. It is immaterial that the respondent believed it to be true. See: on this Peters V. Bradlaugh (1884)4 T.L.R.467; Truth (N. Z.) Limited V. Holloway (1960)1 W.L.R.997 (P.C.). And what is required is strict proof of the imputation complained of.
The decisive issue is, therefore: was the defence of qualified privilege available to the respondent. On this, Akpata, J.C.A. (as he then was) stated in his judgment:-
It is true, as stated by the learned trial Judge that where defamatory words are published without lawful excuse, the law presumes that the defendant is motivated by what is often described as malice in law. The position of the law however, as it stands,and as rightly stated by the appellant, is that if a defendant files a defence of fair comment or privilege the presumption of malice in law is lost. It then behoves the plaintiff who alleges malice to file a reply raising the allegation of malice. Once a plaintiff fails, as in this case, to file a reply the court would not presume malice and the plaintiff cannot plead evidence of malice. Apart from English authorities on the matter, the outstanding Nigerian authority on it is the case of Chief S. B. Bakare and Anor. v. Alhaji Ado Jbrahim (1973)3 E.C.S.L.R. (Pt.1) 485 at page 489. Italics mine.
With greatest respects, I believe that the eminent and respective Justice slipped there. In the first place, the Case of Bakare did not say that the duty to file a reply alleging express malice arises once a defendant files a defence of fair comment or qualified privilege. Rather it says that that duty arises when such a defence has been made out. It is useful in this respect to quote the ipsissima verba of Ibekwe, J.S.C. (as he then was) in the Case of Bakare. He said at page 489 of the report.
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.
It appears clear from the above words that the need to deliver a reply to plead express malice arises not merely because a defendant has filed a defence of qualified privilege or fair comment. Rather, it arises because he has made out the defence. To put it in another way, it is a duty which is cast on him by the shifting of the burden of proof in the civil case and not merely as a rule of pleading. It is a matter of commonsense that legal defences are never made out by a defendant merely filing his defence but by his calling cogent evidence in proof of the defence filed. I believe it is always open to a plaintiff faced with a defence of qualified privilege to decide whether he can, as in this case, rely on the fact that the defence is not made out, at which case there is no need for his pleading express malice, the onus of proof of which is on him. Or, when he believes that such a defence will probably be made out, he may and should seek to destroy it by pleading and showing that the publication was actuated by malice. In this case in which he obviously opted for the first alternative he does not fail simply because he did not plead express malice. And as respondent did not discharge the onus of proving the defence the burden of pleading and proving express malice has not shifted to the appellant, as plaintiff.
It is also necessary to comment upon another statement of the learned Justice of Appeal, as he then was, which underpins his erroneous approach to the defence of qualified privilege be stated:-
There are occasions upon which, on grounds of public policy and convenience, a person may, without incurring legal liability, make statements about another which are defamatory and infact untrue. On such occasions a man stating what he believes to be the truth about another, is protected in doing so provided he makes the statement honestly and without indirect or improper motive. (See Gatley on Libel and Slander 7th Edition paragraph 441 at page 186).
My first observation is that this is an introductory paragraph to the whole of chapter 13 of the learned author's work. Understandably therefore it is a form of a general statement which was later explained, cut down, and delimited in subsequent paragraphs. From the authorities, however, the law appears to be that it is only when the plaintiff has put a defendant's intention in issue by serving a reply alleging express malice that the belief or non-belief of the defendant becomes material. See: on this: Plymouth Mutual Cooperative and Industrial Societiy, Limited V. Traders Publishing Association, Limited (1906)1 K.B.403 at page 418, per Fletcher Moulton, L.J. Indeed the learned author of Gatley himself made the same point in paragraph 1177 of the work where he stated:-
Where the defence of qualified privilege or fair comment is pleaded, and the plaintiff has served a reply alleging express malice, the condition of mind of the defendant when he published the words is a matter directly in issue.
See also: Dewsan V. Dover Chronicle(1913) 108L.T. at page 484; also Caryll v. Daily Mail (1904)90 L.T. 307. Local decisions are also in line with the fact that a defendant's belief in the truth of such allegation cannot be a ground for exculpating him when there is no issue of express malice which can only be raised in a reply. See: Ezekwe V. Otomewo (1957) W.N.L.R.130 also Dr. Louis Nthrenda V. Paul Alade & Anor. (1957) N.N.L.R.94 where Bello, S.P.J., quoted with approval the dicta of Lord Loreburn, L.C. in Hulton v.Jones (1910) A.C.20 at pages 23-24 to the like effect. It is clear, therefore, from the above authorities that where a man in good faith publishes a libel believing it to he true whereas infact the statement was false, he cannot hide under the defence of qualified privilege which is not clearly made out no matter how innocent his intention were, unless and until after he has prima facie made out the defence his intention has been put in issue by the plaintiff delivering a reply pleading express malice on the part of the defendant. Also it is only when the issue of express malice is being tried or for purposes of mitigation of damages that the defendant's intention in making the publication may be relevant. In the instant case where express malice was never made an issue, it was wrong, in my view, for the learned Justice of Appeal to have come to the conclusion that the respondent was immune from liability simply because he probablv believed in the truth of what he published which was found to be defamatory of the appellant.
Finally I shall deal with the question; was a defence of qualified privilege made out so that it can be said that as the appellant failed to plead or prove express malice the defence of qualified privilege succeeded? To answer this question correctly I shall be guided by what I said in Dayo Dayile & Anor. V. Kelly Ogunbayo & Sons Limited (1988)3 S.C.J. (Pt. 1) page 1, at page 12; (1988) I N.W.L.R. (Pt.72) 601 at Pg.614. There I stated that the fact that an occasion is privileged affords no panacea for publication of libellous imputations unnecessary or irrelevant to the privileged occasion. I cited with approval the dictum of Lord Atkinson in Adam v. Ward (1917) A.C.309 at Pages 320-321.
Now the sting of the publication complained of in this case is the imputation that the appellant had been found guilty of professional misconduct as a Chartered Surveyor, Estate Agent, and Valuer, As it turned out, he was never tried of such an offence by his fellow members of his professional body. The respondent had not the competence to try him, and, in any event, could not rightly be witness, jury and judge at the same time. The two lower courts found, and I agree with them, that professional misconduct was not proved. Worse, evidence given at the trial by the respondent himself shows that there was no ground at all for imagining that the appellant committed any professional misconduct by canvassing for jobs for himself while he was in respondent's appointment. It is enough for me to quote two pieces of evidence, among others, on this. Under cross-examination, the respondent admitted:-
Exhibit I' is a letter of the plaintiff's appointment by me. Exhibit 'I' does not forbid the plaintiff from doing another private job.
Later on, he also admitted:-
I mandated all associates in my company to canvass for business for the company and they are entitled to a percentage of the fees from such job above certain limits.
When the appellant's letter of appointment does not forbid him from doing any private job and the employer himself admitted that he mandated his employees to canvass for jobs, I do not see the basis of the respondent's complaint. Neither do I see how a professional employee can be held guilty of professional misconduct for practising his profession in a way not shown to be contrary to any rule or the terms of his employment. The conclusion I have reached, therefore, is that the publication complained of was not only false; it was also completely groundless. Also guided by what I said in Duyile case I referred to above, it would have been sufficient, if the respondent's interest, were merely to protect his business interest, to stop by merely stating that the appellant was no longer in his employment. It was absolutely unnecessary to add the sting that he was guilty of professional misconduct. Moreover he did not confine the publication of the defamatory matter to the professional colleagues of the appellant and the respondent and, perhaps, his clients. He went ahead to publish it to the whole world. It must be noted that such an excessive publication is a ground for aggravation of damages; but as this has not been asked for, I say no more about it. I am, however, satisfied that the publication complained of was libelous of the plaintiff to the extreme, as well as it was groundless and unnecessary. Yet it was over-publicised and the respondent had no defence to the action.
For the above reasons and the fuller reasons contained in the reasons for judgment just delivered by my learned brother, Olatawura, J.S.C. which I adopt as my own, I allowed the appellant's appeal on the 9th of July, 1990 and reserved the reasons for my judgment till today. I have now given my reasons
On the 9th of July, 1990, Nnamani, J.S.C indicated his concurrence in unanimously allowing the appeal. Unfortunately, His Lordship died on Saturday, 22nd September, 1990 before the Reasons for Judgment were given on 5th October, 1990.
Wole Olanipekun, Esq.
For the Appellant
D. Akin Akintoye, Esq.
For the Respondent