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EDDY I. ONAH V SCHLUMBERGER (NIG) LTD & ANOR

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EDDY I. ONAH V SCHLUMBERGER (NIG) LTD & ANOR

Legalpedia Citation: (2018) Legalpedia (SC) 71131

In the Supreme Court of Nigeria

HOLDEN AT ABUJA

Thu May 31, 2018

Suit Number: SC. 90/2007

CORAM



PARTIES


EDDY I. ONAH APPELLANTS


1. SCHLUMBERGER (NIG) LTD2. MR. PHILIP MAQUET RESPONDENTS


AREA(S) OF LAW



SUMMARY OF FACTS

SUMMARY OF FACTS
The Plaintiff/Appellant was the Managing Director of Chilkied Security Services and Dog Farms Ltd, while the 2nd Respondent is the head of Administration of the 1st Respondent. The 1st Respondent awarded a contract to the Plaintiff to provide Security Services at the residential Camp, office, and Warehouse of the 1st Respondent. The Plaintiff went to work, but after a while the contract was terminated. The 2nd Respondent claimed that the termination of the contract did not go down well with the Plaintiff hence; he was threatened by the Plaintiff in messages sent by the Plaintiff to him (the 2nd Respondent). The 2nd Respondent wrote a letter exhibit C to the Commissioner of Police reporting the threats of the Plaintiff and seeking Police protection. The Plaintiff claimed that the contents of exhibit C are defamatory of him. The Defendants’ relying on the defence of justification and qualified privilege filed and served pleadings. At the conclusion of trial, the court in a considered judgment agreed with the Plaintiff, awarded the sum of N 2,500,000.00, against the Defendants’ jointly and severally, and made an order of injunction restraining the Defendants’ their servants and/or agents from writing and publishing or causing to be written and published any similar libel of and concerning the Plaintiff. Dissatisfied with the judgment of the trial court, the Defendants’ filed an appeal in the Court of Appeal. The court set aside the judgment of the trial court, and ordered that all monies paid in satisfaction of the judgment shall be refunded to the Respondents. This appeal is against that judgment. The Respondent filed a Notice of Preliminary Objection against the hearing of this appeal on grounds that the appeal is incompetent as the grounds of appeal did not arise from the judgment of the lower court but arose out of an obiter dictum of the Court of Appeal.


HELD


Appeal Dismissed


ISSUES


Whether the defence of qualified privilege avails the respondents


RATIONES DECIDENDI


REPLY BRIEF – EFFECT OF AN APPELLANT’S FAILURE TO FILE A REPLY BRIEF TO A PRELIMINARY OBJECTION


“When the respondent argues his Preliminary Objection in the respondents brief the appellant is expected to respond by filing a Reply brief. Where, as in this case the appellant fails to file a Reply brief the Preliminary Objection is deemed to have been conceded by the appellant. In such a case, the court should still examine the preliminary objection to ensure that it does not hear an incompetent or fundamentally defective appeal. See Nwankwo v Ecumenical Development Co. Society (2002) 1NWLR (Pt749) D.513.”


PRELIMINARY OBJECTION – PURPOSE OF A PRELIMINARY OBJECTION


“Order 2 Rule 9 (i) of the Supreme Court Rules provides for the filing of Preliminary objection. In Isah vINEC & 2ors (2014) 1-2 SC (Pt.M D.101. I said that:
A Preliminary Objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. The purpose of a preliminary objection is to convince the court that the appeal is fundamentally defective in which case the hearing of the appeal comes to an end if found to be correct. Where a preliminary objection would not be the appropriate process to object or show to the court defects in processes before it a motion on notice filed complaining about a few grounds or defects would suffice.
See also Nwaolisah v Nmhufoh (2011) 8-7SC (Pt. ii) p.138. (Pt.iii) P.104; Wachukwu & anor v Owunwanne & anor (2011) 5SC (Pt. i) P.168.”


RATIO DECIDENDI AND OBITER DICTUM – DISTINCTION BETWEEN RATIO DECIDENDI AND OBITER DICTUM


“There is a clear distinction between ratio decidendi and obiter dicta. The former has a binding effect in a judgment. It is authority for what the case decides or stands for. The ratio decidendi of the judgment of the Court of Appeal is that the defence of qualified privilege is established when the person who makes the publication has a moral duty to make it to the person to whom he makes it and the person who receives it has an interest in hearing it and since these twin conditions exist there was no malice and so qualified privilege availed the appellants/respondents. On the other hand obiter dicta are mere observations of the court and a court is entitled to make observations in the process of preparing its judgment. The issue of justification was not an issue formulated for determination by either party, and it was not one of the two issues considered by the Court of Appeal. In the process of considering the defence of qualified privilege the Court of Appeal explained the difference between it and the defence of justification. This was obiter dictum of the court.”


OBITER DICTUM – WHETHER AN APPEAL CAN LIE AGAINST AN OBITER DICTUM


“Now, Grounds of Appeal must question the ratio decidendi and not the obiter dicta. That is to say an appeal does not lie against an obiter dictum. It lies against the ratio decidendi. The defence of justification was commented on by the Court of Appeal. The comments amounts to obiter dictum of the court and nothing more. Since it is well settled that grounds of appeal must relate to, and challenge the decision appealed against, while the issues must arise from the grounds.”


GROUND OF APPEAL- WHAT AMOUNTS TO AN INCOMPETENT GROUND OF APPEAL?


“A ground of appeal would be incompetent if the adversary is left in doubt as to what the complaint of the appellant really is. See Aderounmu v Olowu 2000 SCNJ p. 180.”


TORT OF DEFAMATION – MEANING OF THE TORT OF DEFAMATION


“The tort of defamation is either libel or slander. The former is written while the latter is spoken. Libel or slander is thus written or spoken words that exposes a person to hatred, ridicule or contempt. That is to say to be shunned or avoided and to be lowered in the estimation of right thinking people in society. To disparage a person in his profession or trade. See Guardian Newspapers Ltd v Ajeh (2011) ALL FWLR (Pt.584) p.1.”


LIBEL- ESSENTIAL INGREDIENTS OF LIBEL


“The essential ingredients of libel are:
1. The words complained of must have been written;
2.The libelous matter must be published;
3.The words must refer to the plaintiff;
4.It must be the defendant who published the words;
5.The onus is on the plaintiff to prove that he was the one referred to in the alleged libel;
6.The publication must be false except when the defence of qualified privilege is relied on.”


LIBEL – NATURE OF THE CAUSE OF ACTION IN AN ACTION FOR LIBEL


“The publication of libelous matter gives the plaintiff the cause of action. This is well settled position of the law that libel is all about the estimation in which others hold the plaintiff and not what he thinks of himself.”


LIBEL – WHAT CONSTITUTES ‘PUBLICATION’ IN AN ACTION FOR LIBEL?


“The writing of Libelous matter does not constitute publication. Once the libelous matter is made known (i.e. read) by someone other than the person of whom it is written (in this case the plaintiff/appellant) there is publication. That is to say that once libelous matter is written and delivered to anyone other than the plaintiff, publication is complete and an action for libel can be filed.”


DEFENCE OF QUALIFIED PRIVILEGE- WHEN CAN THE DEFENCE OF QUALIFIED PRIVILEGE BE CONSIDERED?


“A defence of qualified privilege would only be considered if it is robustly pleaded, so that the plaintiff has good notice of the defence. Simply pleading that the defendant relies on the defence of qualified privilege or that the publication of the defamatory statements was made on a privileged occasion would be inadequate.”


QUALIFIED PRIVILEGE – WHEN IS THE DEFENCE OF QUALIFIED PRIVILEGE AVAILABLE?


“The defence of qualified privilege is available when there is a common interest between the maker of a defamatory statement and the person to whom it is made. There must be reciprocity of interest. The maker of the defamatory statement must have an interest or duty, legal, social or moral to make it and the person to whom it was made must have a corresponding interest or duty to receive it.”


DEFENCE OF QUALIFIED PRIVILEGE -WHEN WILL THE DEFENCE OF QUALIFIED PRIVILEGE NOT AVAIL A PARTY?


“The court must consider the motive for the publication to be satisfied that the maker of the defamatory statement was not actuated by malice. The defence of qualified privilege collapses when malice is established, and the onus is on the plaintiff to satisfy the court that the publication was actuated by malice. The truth or falsity of the libelous matter is irrelevant when considering the defence of qualified privilege. See Emeagwara v Star Publishing & Publishing & Company Ltd & ors (2000) 5SCNJ p.175 Offoboche v Ogoja Local Government & anor (2001) 7SC (Pt.iii) p.107; Iloabachie v Iloabachie (2005) 18 NWLR (Pt.950) p.510. Mamman v Salaudan (2005) 18 NWLR (pt.958) p.510. Esenowo v Ukong (1999) 6NWLR (Pt.608) p.620.”


PLEADINGS – REQUIREMENT OF THE RULES OF COURT ON PLEADINGS


“Rules of court on pleadings require a party to state concisely in numbered paragraphs the material facts of his case on which he relies but not the evidence with which those facts are to be proved.


RATIO DECIDENDI – DEFINITION OF RATIO DECIDENDI


“Again in the case of Kupolati v Oke (2009) ALL FWLR (Pt.486) 1858 at 1873, ratio decidendi was defined as follows:-
“Ratio Decidendi has been defined according to the Latin interpretation as the “reason for deciding”. It is also defined as-
(1)The principle or rule of law on which a court’s decision is founded.
(2)The rule of law on which the later court thinks that a previous court founded its decision: a general rule without which a case must have been decided otherwise often shortened to the ratio”.


RATIO DECIDENDI – MANNER OF ASCERTAINING THE RATIO DECIDENDI OF A CASE


“The way and manner the ascertainment of the ratio decidendi of a case is made is found in the same case of Kupolati v Oke (Supra) at 1875 thus:-
“There are two steps involved in the ascertainment of the ratio decidendi. First, it is necessary to determine all the facts of the case as seen by the judge, it is necessary to discover which of these facts were treated as material to the judge”.


QUALIFIED PRIVILEGE – WHETHER QUALIFIED PRIVILEGE CONSIDERS WHETHER A PUBLICATION IS TRUE OR FALSE


Also to be said is that when it comes to qualified privilege it does not matter whether the publication is true or false. In this regard I cite the case of Kanu v Oparaocha (2006) ALL FWLR (Pt.309) 1499 at 1501 -1502, where it was held thus:-
“The term qualified privilege defies direct definition. An action for a redress lie against a person who makes a malicious publication of words or statements that are false in fact and injurious to the character and reputation of another person to whom these words are directed. The law considers the publication of such false and injurious words or statements as malicious unless it can be established that the person who made the Communication of such words is a person who has an interest or a duty, be it legal, social or moral, to make it to the person to whom it is made and that person to whom it is so made has a corresponding duty or interest to receive it. In law, a communication bonafide, made upon any subject matter in which the party communicating has an interest is privilege and It is often said to have been made on a qualified privilege is said to avail a person who is sued as a defendant in such circumstances.”


POLICE – GENERAL DUTIES OF THE POLICE


“Section 4 of the Police Act Cap.349, LFN 1990 states the general duties of the Police. For ease of reference, the section is hereby reproduced:-
The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged and shall perform such military duties within or without Nigeria as may be required by them or under the authority of this or any other Act.”


CASES CITED



STATUTES REFERRED TO


Constitution of the Federal Republic of Nigeria, 1999 as amended|Police Act Cap.349, LFN 1990|Supreme Court Rules|


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