Publication as an Essential Ingredient of Libel, Effect of Failure to Prove Same

ONYEBINANMA v. COVENANTED NEWDAWN LTD
CITATION: (2022) LPELR-58936(CA)
In the Court of Appeal
In the Abuja Judicial Division
Holden at Abuja

ON THURSDAY, NOVEMBER 24, 2022
Suit No: CA/A/180/2014

Before Their Lordships:

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice, Court of Appeal
UGOCHUKWU ANTHONY OGAKWU Justice, Court of Appeal
BATURE ISAH GAFAI Justice, Court of Appeal

Between

MR. BRIGHT CHIMEZIE ONYEBINANMA – Appellant(s)

And

COVENANTED NEWDAWN LIMITED – Respondent(s)

LEADING JUDGMENT DELIVERED BY UGOCHUKWU ANTHONY OGAKWU, J.C.A.

FACTS

This appeal emanated from the High Court of the Federal Capital Territory, Abuja.

The appellant, a legal practitioner, was posted to the respondent company for his primary assignment during his compulsory National Youth Service Corps (NYSC) Programme. In the course of the said primary assignment, the appellant had cause to travel outside the Federal Capital Territory (FCT), Abuja, in order to attend the wedding ceremony of his sister in Abia State. He duly obtained the permission of FCT State Coordinator of NYSC to proceed on the journey. Upon his return, the respondent, apparently not pleased with the appellant having left his primary assignment to travel, wrote to the NYSC FCT State Coordinator with the request that the appellant be reabsorbed and reposted to another establishment, which was done.
The appellant, contending that the respondent’s said letter was defamatory, instituted proceedings in the High Court of the Federal Capital Territory, Abuja.
The parties filed and exchanged pleadings and the matter proceeded to hearing where oral and documentary evidence was adduced by the parties. After the final address by learned counsel for the parties, the trial Court in its judgment dismissed the appellant’s case.
The appellant peeved by the decision of the High Court appealed to the Court of Appeal.

ISSUES FOR DETERMINATION
The Court of Appeal determined the appeal based on the following issues for determination:
1. Whether from the entire circumstances of the case, the learned trial Judge was correct when His Lordship held that the appellant failed to present any credible and plausible evidence of publication of exhibit PW1C to a third party?
2. Whether the learned trial Judge was correct when His Lordship dismissed the appellant’s case?

APPELLANT’S SUBMISSION
On the first issue, the appellant submitted that the High Court was wrong to hold that he did not present any credible and plausible evidence of the publication of the defamatory letter, Exhibit PW1C, to a third party. It was argued that contrary to the decision of the lower Court, the pleading of the name of the NYSC FCT State Coordinator to whom Exhibit PW1C was addressed was not required, but that even if required, since the same was not raised or contested by the parties, the High Court was precluded from raising and deciding the issue suo motu and using it as a basis to dismiss the appellant’s case without hearing the parties on the issue. The cases of FAWEHINMI vs. AKILU (1994) 4 NWLR (PT 351) 387 at 452, TRANS-ATLANTIC SHIPPING AGENCY LTD vs. DANTRANS NIG LTD (1996) 10 NWLR (PT 478) 360, COMM. FOR WORKS, BENUE STATE vs. DEVCON LTD (1988) 3 NWLR (PT 83) 407, were referred to among others.

The appellant further contended that the High Court was wrong when it held that the NYSC State Coordinator must give evidence that he received and read the defamatory letter, Exhibit PW1C. It was maintained that the passive recipient of a defamatory material is not the operative factor in publication, since publication is effected by conveying the defamatory meaning to the person to whom it is communicated. The appellant relied on Gatley on Libel and Slander, 6th Edition, page 118 paragraphs 232-233, Clerk & Lindsell on Torts, 14th Edition, page 978 paragraph 1707 and OKORONKWO vs. CHUKWUEKE (1992) 1 NWLR (PT 216) 175.

On the second issue, the appellant submitted that the High Court was wrong to dismiss the appellant’s case after having found that the basic ingredients in a defamation action were proven and it was further opined that there was enough evidence for the Court to find that the defamatory material was published to a third party. It was maintained that the libel having been proved, the High Court ought to have awarded damages in the appellant’s favour, taking into consideration the respondent’s conduct in the deliberate and malicious libel and its refusal and failure to make any offer of amends. Section 6 (1) of the Defamation Act, Cap. 492 Laws of the Federation of Nigeria (Abuja) and the cases of AFRICAN NEWSPAPERS OF NIGERIA LTD vs. CIROMA (1996) 1 NWLR (PT 423) 156, CONCORD PRESS LTD vs. OBIJO (1990) 7 NWLR (PT 162) 302, EMEAGWARA vs. GUARDIAN NEWSPAPERS LTD (1998) 1 NWLR (PT 535) 610 and MAYANGE vs. PUNCH NIG. LTD (1994) 7 NWLR (PT 358) 570 were cited in support.

RESPONDENT’S SUBMISSION
Arguing the issues, the respondent submitted that the appellant did not state how the alleged defamatory letter humiliated, disgraced and exposed him to contempt. It was maintained that the lower Court specifically found that there was no publication to the third party as the letter was not addressed to a named person and no one was called from the office of the NYSC FCT State Coordinator to affirm the letter and whether they found the letter defamatory. The cases of FAWEHINMI vs. AKILU (1994) 6 NWLR [no part stated] 387 at 458, GEORGE vs. OWODIONG 1 (2018) ALL FWLR (PT 952) 110 at 140 and PULLMAN vs. HILL (1891) 1 QB 524 at 527 were called in aid.

RESOLUTION OF ISSUES
In resolving the issues, the Court of Appeal started by stating the trite position of the law that an appellate Court is concerned with whether the decision appealed against is the correct decision and not whether the reasons for the decision are correct. Where the decision is the correct decision, it becomes immaterial whether the reasons given for the decision are wrong. An appellate Court will not set aside the correct decision of a Court on the basis that the reasons given for arriving at the correct decision are wrong. The Court relied on the authorities of NDAYAKO vs. DANTORO (2004) 13 NWLR (PT 889) 189 at 220, DAIRO vs. UBN PLC (2007) 16 NWLR (PT 1059) 99 at 161 and POATSON GRAPHIC ARTS TRADE LTD vs. NDIC (2017) LPELR (42567) 1 at 36.

Going further, the Court of Appeal held that the material part of the cause of action in libel is not the writing per se, but the publication that is, the act of publishing the libelous matter which constitutes the cause of action. It was held that the technical sense which publication connotes in the law of libel is the effect, which the defamatory words have on the persons to whom it was published, and the esteem in which they hold the person defamed. In this regard, the Court of Appeal agreed with the holding of the High Court on the need for the NYSC FCT State Coordinator to testify since the effect the libelous publication had on the person to whom it was made is an integral aspect of publication in the tort of libel. Where the recipients of the defamatory publication are not swayed by it in their opinion of and esteem in which they hold the person defamed, then defamation cannot be said to have occurred. This is in consonance with the ingredients of the tort of libel as held in the cases of See SKETCH vs. AJAGBEMOKEFERI (1989) 1 NWLR (PT 100) 678 at 704, ILOABACHIE vs. ILOABACHIE (2005) LPELR (1492) 1 at 44 among others. Thus, a plaintiff in the tort of libel has to establish by the evidence, not just that there was publication, but also that the publication lowered him in the estimation of right-thinking members of the society and that his reputation and esteem were affected by the publication.

Still on the issue of publication, the Court of Appeal held that a person’s reputation is not based on the good opinion he has of himself, but the estimation in which others hold him. Therefore, the material and cardinal evidence in defamation or libel cases is the reaction of a third party to the publication complained of. It is not what the plaintiff thinks about himself, but what a third party thinks of the plaintiff as regards his reputation. The cases of STANDARD CHARTERED BANK NIGERIA LTD vs. AMEH (2022) 15 NWLR (PT 1854) 559 at 598 and 603, NSIRIM vs. NSIRIM (1990) 5 SCNJ 174 at 184 or (1990) 3 NWLR (PT 138) 285 at 297 and 299, IWUEKE vs. I.B.C. (2005) LPELR (1567) 1 at 37, OMO-AGEGE vs. OGHOJAFOR (2010) LPELR (4775) 1 at 13-17, AJAKAIYE vs. OKANDEJI (1972) 1 SC 92 and ANATE vs. SANUSI (2001) 11 NWLR (PT 725) 542 at 558-559 were relied upon.

On the issue of the High Court raising an issue suo motu, the Court of Appeal relying on the authorities of OSHODI vs. EYIFUNMI (2000) 13 NWLR (PT 684) 298 at 332, MOJEKWU vs. IWUCHUKWU (2004) LPELR (1903) 1 at 25 and SANI vs. AYE (2022) LPELR (58094) 1 at 12-15, restated the trite position of the law that a Court should not raise an issue suo motu and unilaterally resolve the same without hearing the parties, particularly the party that may be adversely affected by the issue raised. The Court of Appeal however held that the High Court alluding to the fact of the name of the person to whom the defamatory letter, Exhibit PW1C, was delivered was not raising an issue suo motu. Rather, it was a consideration of the essential ingredients of libel as it relates to publication of the defamatory matter. The cases of IKENTA BEST (NIG) LTD vs. A-G RIVERS STATE (2008) 6 NWLR (PT 1084) 612 at 642 or (2008) LPELR (1476) 1 at 28-29, OTU vs. ANI (2013) LPELR (21405) 1 at 31-34 and ADEMOK CONTINENTAL LTD vs. OGUN STATE GOVT (2022) LPELR (56418) 1 at 11-16 were further cited in support.

In concluding, the Court of Appeal held that the decision of the High Court was correct, and thus the Court of Appeal will not interfere regardless of whether the reasons for the decision were correct or not. The Court cited the cases of AJADI vs. OKENIHUN (1985) 1 NWLR (PT 3) 484 at 492, NGWU vs. ONUIGBO (1999) LPELR (1992) 1 at 12, UZOCHUKWU vs. ERI (1997) LPELR (3454) 1 at 25-26 and SET SUCCESS ENTERPRISES AND CO LTD vs. IBEJU-LEKKI LOCAL GOVT COUNCIL (2021) LPELR (56608) 1 at 12-13 in support.

HELD
The appeal was dismissed for lacking in merit.

APPEARANCES:
Dr. Sonny Ajala, SAN, with him,
A. S. Nnok-Nduu, Esq. and C. C. Ndukwe, Esq. – For Appellant(s)

Ademola Adewoye, Esq. – For Respondent(s)