➥ CASE SUMMARY OF:
Mr. Zik Gbemre v Hon. Justice Godwin Ejeata Gbemre (2023) – CA/AS/114/2020
by Branham Chima.
Mr. Zik Gbemre
Hon. Justice Godwin Ejeata Gbemre
Court of Appeal – CA/AS/114/2020
➥ JUDGEMENT DELIVERED ON:
Friday the 2nd day of June 2023
➥ THIS CASE IS AUTHORITY FOR:
⦿ DEFINITION OF DEFAMATION
In resolving Issue 1, the courts especially the Apex court have in plethora of cases judicially defined defamation as: “a tort whether libel or slander, it is any written words in a permanent form or printed article which is published to a third person or persons without lawful justification or excuse which tends to lower the person defamed in the estimation of right thinking members of the society or to expose him to hatred, contempt, ridicule or to injure him in his profession, office or trade or to injure his financial credit”. See the cases of SKETCH PUBLICATIONS LTD v. AJAGBOMKEFERI (1989) 1 NWLR (PT.100) 678 SC, NSIRIM v. NSIRIM (1990) 3 NWLR (PT.138) 285 @ 297, CHILKIED SECURITY SERVICES AND DOG FARMS LIMITED V. SCHLUMBERGER NIGERIA LTD (2018) LPELR-44391 (SC), STEPHEN EMMANUEL V. CHRISTIANA FELIX & ORS (2022) LPELR-57960 (CA). — A.O. Obaseki-Adejumo, JCA.
⦿ PUBLICATION IS A REQUIREMENT TO SUCCEED IN DEFAMATION
It is the settled position of the law that defamatory words are actionable once it is libelous and has been published to a 3rd party. Publication is one of the basic ingredients of defamation. For a Claimant/plaintiff to succeed in libel there must be proof by evidence of publication to a third party and the reaction of the 3rd party to such publication. See the cases SKETCH PUBLICATIONS LTD v. AJAGBOMKEFERI (SUPRA), NSIRIM v. NSIRIM (SUPRA). — A.O. Obaseki-Adejumo, JCA.
⦿ WHAT NEED BE PROVED TO SUCCEED IN DEFAMATION
It is trite that for a claimant to succeed in an action for defamation, he needs to prove the following; (a) That the words are defamatory which exposes him to hatred, ridicule, contempt in the estimation of right thinking members of the society and has the tendency to injure his reputation, profession or trade. That the false words referred to him (the Plaintiff) and are to discredit him. (b) (c) That the words were published (to at least one person other than the plaintiff). It is the position of the law in the case of STEPHEN EMMANUEL v. CHRISTIANA FELIX & ORS (2022) LPELR-57960 (CA) that; “It is indeed the correct position of law that at least one witness must be called who actually perceived the defamatory words by reading the written words or by hearing in its oral form.” See also the case of OKECHUKWU v. UBA PLC & ANOR (2017) LPELR-43100 (CA). — A.O. Obaseki-Adejumo, JCA.
⦿ IMPUTATION OF CORRUPTION ON A MAN IN OFFICE IS DEFAMATORY
It is settled law that it is defamatory to impute to a man in any office, whether public or private, any corrupt, dishonest or fraudulent conduct or other misconduct or inefficiency in it or unfitness or want of ability to discharge his duties. See the case of CITIBANK NIGERIA LIMITED v. IKEDIASHIO (2014) 7 CLRN (CA). — A.O. Obaseki-Adejumo, JCA.
⦿ RELYING ON THE PLEA OF DEFENCE OF JUSTIFICATION
It is trite that for a defendant to rely on a plea of Justification, the words spoken or written must be true. The defence of justification is made out the moment a defendant establishes that the alleged libelous words are true. All the defendant has to do, is to justify the substance of the publication by showing that the main charge or gist of the libel is true. See the case of RAFIU AJIBOLA OKIKIOLA OGBARA v. KAZEEM OLORUNIMBE OGBARA (2022) LPELR-59307(CA). A plea of justification means that the libel (defamatory words) is true, not only in its allegation of facts but also in any comment made there on. The defendant who pleads justification is required to deliver full particulars of the facts and matters upon nich he relies in support of such a plea inits statement of defence and the evidence at the trial in support of this plea of justification. See the case of FIRST BANK OF NIGERIA V. GHANNY INTERNATIONAL LIMITED & ANOR (2022) LPELR-58083 (CA). The defendant must prove that the statement made is true in substance and fact, irrespective of whether the statement was made out of malice or as fair comment. The duty of proving the truth of the statement is on the defendant, and the plea of justification must be broad enough to cover every injurious imputation contained in the libel.A summary is that he must justify his action. Strict proof is required not a mere ipsi dixitin pleadings. — A.O. Obaseki-Adejumo, JCA.
⦿ THE DEFENCE OF QUALIFIED PRIVILEGE
The defence of qualified privilege is a defence to an untrue publication. It can only be claimed however when the occasion of the publication is shown to be privileged. An occasion is privileged when the person who makes the documentation has a moral duty to make to the person to whom he does make it and the person who receives it has an interest in hearing it. Both these conditions must exist in order for the occasion may be privileged. See the case of MAINSTREET BANK LIMITED & ANOR v. DOMINIC BINNA (2016) LPELR-48351 (SC).PUNCH (NIG) LTD V OVBEREDJO (2018)LPELR-44540(CA) The defence of qualified privilege will not avail a defendant if there is evidence of actual or express malice. If the action of the defendant is actuated by malice. See the cases of UKO v. MBABA (2001) 4 NWLR (PT 704) 460 CA; CHIEF S. B. BAKARE & ANOR v. ALHAJI ADO IBRAHIM (1973) 6 SC 147 @ 152-153. — A.O. Obaseki-Adejumo, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Abimbola Osarugue Obaseki-Adejumo, JCA
⦿ FOR THE APPELLANT
Abdul Fatai Oyedele Esq.
⦿ FOR THE RESPONDENT
Chief V.E. Otomiewo
➥ CASE FACT/HISTORY
A brief fact of the case is that the Respondent as the Claimant at the trial court commenced the suit by the Writ of Summons and a Statement of claim filed on the 22nd day of March, 2018 and claimed the following reliefs: a) A prompt and prominent retraction of the publications accompanied with an unconditional apology to the claimant, Hon. Justice Godwin Ejaete Gbemre. b) The said retraction and apology is to be published on the defendant’s facebook wall, filed in the Registry of the Highcourt of Justice, Warri Judicial Division and given a wide and prominent publicity as the defamatory publications. c) The sum of N250, 000, 000.00 (Two Hundred and Fifty Million Naira) as compensation and/ or reparation for the injury to the Claimant’s reputation as a result of the damaging publication. d) An order of perpetual injunction restraining the Defendant by himself, or by his servants, agents or otherwise howsoever from the publication of the said words or any of them or of any similar words in any format whatsoever.
By his pleadings, the Respondent’s case before the lower court was that the Appellant had sent him two (2) text messages via his Globacom Line (08052106013) on the 6th day of August, 2017 which were false, malicious, defamatory and injurious to his reputation, status and position as a Judicial Officer (Judge of the Delta State High court). That the text messages were published and widely circulated to the following persons; Chief Judge of Delta State, Chief Kenneth Gbagi, Chief Moses Odibo, Attorney-General and Commissioner of Justice, Delta State, Commissioner of Police, Delta State and Mr. Ray Ukueku amongst others. That the Appellant wrote a Petition against him to the National Judicial Council (NJC). The Appellant’s case was that the Respondent had imposed one Mr. James Mukoro as Chairman of Iwhrekan community when it was not supposed to be. He and the Respondent are related and were in very good terms before June 2017. That the Respondent had earlier sent him various text messages on the 6th day of August, 2017 and he sent the two (2) text messages in issue as a response to the disagreement between them. That the text messages and Petition were not injurious as the Respondent successfully retired as a Judge of Delta State High court on the 24th day of March, 2018.
In this instant case the Appellant sent text messages to the Respondent and I reproduce thus: ‘Justice Godwin Ejeata Gbemre, if you don’t know, I am still doing a lot for Shell (SPDC). You are just an ignorant judge begging for alms here and there. Please try and develop your fullpotentials which you will use to earn a legitimate living after retirement. I am capable of using a large crowd of women to gang up against you as well. I have overgrown that kind of primitive lifestyle. You are still living in an outdated world. All you know best is to collect brown envelopes and organize hidden meetings in your house built by Chief Kenneth Gbagi for you in Iwhrekan. Nonsense’.
The Appellant being dissatisfied with the Judgment of the trial court filed a Notice of Appeal on the 1st day of June, 2020 containing Nine (9) grounds of appeal. The parties filed and exchanged their respective Briefs of argument.
This is an Appeal against the judgment of the Delta State High Court of Justice sitting at Warri, coram; Hon. Justice R. D. HARRIMAN (MRS.) delivered on the 8th day of May, 2020. Wherein, the learned trial Court gave its judgment in favour of the Respondent.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the Respondent proved his claim of defamation against the Appellant and whether the lower court properly evaluated the entire evidence adduced in the case?
RULING: IN RESPONDENT’S FAVOUR.
A. THE RESPONDENT WAS DEFAMED AS THE PUBLICATION WAS DEFAMATORY
[‘The above text message was published and sent to the Chief Judge of Delta State, Chief Kenneth Gbagi, Chief Moses Odibo, Chief Sam Odibo, the Attorney-General and Commissioner of Justice, Delta State, the Commissioner of Police, Delta State and Mr. Ray Ukueke as these persons called the Respondent that they received the text messages from the Appellant. (See page 7 of the Record of Appeal). The Respondent’s witness (CW2 Mr. Moses Odibo) adduced evidence of receiving the text messages from the Appellant on the 6th day of August, 2017 and CW3 (Mr. Henry Okotie, Registrar of court) adduced evidence to the fact that one Noah Edeamorigho also acknowledged the defamatory words sent by the Appellant against the Respondent. (See page 239 of the Record of Appeal) The Appellant admitted under cross-examination that he sent the text messages to the Respondent and that he also wrote a petition to National Judicial Council (NJC) against the Respondent which was dismissed by the NJC. (See page 240 of the Record of Appeal). It is trite law that what is admitted needs no further proof. Considering the above text message sent by the Appellant which he admitted he sent and the evidence adduced by the Respondent’s witnesses, it is clear that the text message was defamatory and was published to a third party by the Appellant. The Appellant also wrote a petition to the NJC with contents that accused the Respondent of creating, instigating and causing a lots of problems and crises in the Iwhrekan Community, sponsoring and romancing with hired youths/cultists, using his powers as a judge to infiltrate, interfere and influence the happenings in the community and interfering with police investigation (See Exhibit CL7-8, Pages 49-51 of the Record of Appeal). It is the duty of the court to first consider whether the words in question are capable of carrying defamatory meaning at all. See the cases of KATO C.B.N (1999) 6 NWLR (PT.607)390 @ 407 SC, CHIDI ODINAKALU & ANOR v. SIR (DR) PETER ODILI (2022) LPELR 58717 (CA). The trial court considered the words used by the Appellant in this instant case and found them to be defamatory.’
‘The Respondent was able to prove and establish by the evidence adduced that the text message was defamatory (libelous) which imputed in their natural and ordinary meaning that he is a corrupt judge, he does not know what he is doing, irresponsible and he abuses his office/official position to beg and influence decisions to whosoever’s favour. These words were clearly demeaning words published to a 3rd party. More importantly the added twist is that the Respondent was also, (as at the time of the publication), was a serving judicial officer (a Judge of Delta state High court) whose reputation was likely to be injured by those words and the Appellant also petitioned the Respondent to the NJC in a bid to further discredit his reputation as a judge and possibly get him indicted hence the Respondent was entitled to the award of damages as compensation.’]
II. Whether or not the defences of justification and qualified privilege avails the Appellant in this suit?
RULING: IN RESPONDENT’S FAVOUR.
A. THE DEFENCE OF QUALIFIED PRIVILEGE & JUSTIFICATION IS ABSENT
[‘In this case there was no public inquiry or investigation on going or at all to claim an exercise of duty or interest thereon for the publication. The defence of privilege did not exist. A plea of qualified privilege is an admission of the falsity of the publication in contradiction to the insistence that the facts were true; and the occasion of the publication is privilege see NTA V BABATOPE (1996)4NWLR (PT 440) 75AT 96 F-G, EMEAGWARA V STAR PUBLISHING CO, LTD (2000) 10 NWLR (626) 489. In this instant case, the Appellant admitted sending the text message and writing of the Petition to National Judicial Council (NJC), his grouse was that the Respondent was interfering with community matters (See the Amended Statement of Defence on Page 148 of the Record of Appeal). No evidence was adduced in support of his defence except to point to malice, no proof that respondent collected brown envelopes nor that his house was built by chief Gbagi, or the meetings were organized by him in his house neither was any iota of truth of the allegation pleaded and proved in evidence. Section 132 of evidence act 2011 is to the effect that the burden of proof is on who ever will lose if the facts alleged by him are not proved, definitely it is the appellant who will lose. see EMEGOKWUE V OKADIGBO (1973)ALLNLR 314 It is clear that there was no credible explanations for the text messages to the respondents and published to others in and out side the community. These actions of the Appellant are borne out of malice and he did not adduced evidence to show that the defamatory words were true. It is clear evidence that he had a quarrel with the Respondent due to the Chairmanship position of Iwerehkan community and that he did not like the interference of the Respondent in community matters which did not favour him which lead to the disagreement between them. Furthermore, the findings of the learned trial court that privilege had not been established cannot be faulted. I therefore hold that the defences of plea of justification and qualified privilege does not avail the Appellant.’]
‘Having resolved the two issues against the Appellant, this Appeal fails and lacks merit and is hereby dismissed. The Judgment of the High Court of Delta State, Warri judicial division, per Hon. Justice R. D. HARRIMAN (MRS.) delivered on the 8th day of May, 2020 in SUIT NO W/76/2018 is hereby affirmed. Cost of N600,000 is awarded to the Respondent.’
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)