DR. B. A. N. NWAKOBY V. UBA AHAM & ORS. (2016)

Background

This appeal arose from a libel action instituted by Dr. B. A. N. Nwakoby, then Chief Medical Director of the University of Nigeria Teaching Hospital, Enugu, against Uba Aham, Bayo Onanuga and Independent Communications Network Ltd. The respondents were associated with the publication of The News magazine. The appellant and four other persons had been charged before the Enugu Magistrates’ Court in connection with the alleged disappearance or stealing of approximately N800,000 belonging to the National Insurance Corporation of Nigeria (NICON). The criminal proceedings were subsequently struck out after the Attorney-General of Enugu State entered a nolle prosequi.

Before the criminal proceedings were concluded, the respondents published a story under the headline “Enugu/UNTH’s Boss in Theft Scandal.” The report stated, among other things, that unless his lawyer succeeded in proving his innocence beyond reasonable doubt, the appellant might soon be on his way to prison. It also stated that he had allegedly colluded with four others to steal N800,000 and had been “dragged to” the Enugu Magistrates’ Court. The appellant considered the publication false and injurious to his reputation. He demanded an apology and retraction, but the respondents did not comply. He therefore commenced an action claiming N10 million in damages for libel.

The High Court of Enugu State dismissed the claim. The trial court accepted that the publication was essentially a report of judicial proceedings and held that the respondents were protected by qualified privilege. The appellant appealed to the Court of Appeal, arguing that the publication was defamatory, was not a fair and accurate report of the proceedings, and that the trial court ought at least to have assessed the damages that would have been payable.

Issues

1. Whether the trial court was correct to hold that the respondents’ publication was not defamatory of the appellant.
2. Whether the lower court ought to have quantified or assessed damages notwithstanding its conclusion that the appellant had not established liability.
3. As a preliminary matter, whether a ground of appeal referring to the wrong date of the Magistrates’ Court proceedings was incompetent.

Ratio Decidendi

The Court of Appeal held that the purpose of a ground of appeal is to identify clearly the complaint against the judgment and give adequate notice to the opposing party. An appellant is bound by the grounds filed and cannot argue a complaint unrelated to the decision under appeal. Nevertheless, the inclusion of an erroneous date did not make the ground vague or incompetent where the substance of the complaint remained clear. The preliminary objection was therefore dismissed.

On libel, the court restated that a claimant must establish: a written publication; falsity; publication to a person other than the claimant and defendant; reference to the claimant; defamatory meaning; and publication by the defendant. A publication is defamatory if it tends to lower a person in the estimation of right-thinking members of society or exposes that person to contempt, ridicule, hatred, disdain or disesteem.

The court disagreed with the trial court’s conclusion that the words were not defamatory. In particular, the expression “dragged to court,” read alongside the sensational headline and the assertion that the appellant was on his way to prison, was capable of conveying a defamatory meaning. A statement that appears innocent on its face may become defamatory when considered with surrounding or extraneous facts. The court consequently recognised that the words published could be defamatory.

However, the recognition of defamatory meaning did not end the case. The respondents had pleaded qualified privilege. Such privilege arises where the publisher has a legal, social or moral duty or interest to communicate the information and the audience has a corresponding duty or interest in receiving it. Reports concerning court proceedings and matters of public interest may attract the defence, provided the occasion is not misused.

Malice defeats qualified privilege, but malice is not presumed. The claimant must plead and prove particulars showing that the publication was actuated by an indirect, improper, spiteful or otherwise malicious purpose. The court found that the appellant had failed to provide sufficient evidence that the respondents published the report out of personal spite, ill-will or another improper motive. The respondents were therefore entitled to the protection of qualified privilege.

Court Findings

The court held that freedom of the press under section 22 of the Constitution is not a licence to defame. Media freedom must be balanced against the rights to privacy, dignity and reputation. The court criticised sensational journalism and the tendency of media organisations to use exaggerated language to attract attention. Nevertheless, despite these concerns, the evidence in this particular case did not establish express malice capable of defeating qualified privilege.

Because the appellant failed on liability, his claim for damages could not succeed. The issue of assessing damages was hypothetical and became otiose once the court concluded that the respondents had a valid defence. Courts do not assess damages “out of nothing” where no actionable liability has been established.

Conclusion

The Court of Appeal dismissed the appeal as lacking merit and affirmed the result in favour of the respondents. The preliminary objection was dismissed, but the substantive appeal failed because qualified privilege was established and malice was not proved. Each party was ordered to bear its own costs.

Significance

The decision illustrates the distinction between defamatory meaning and liability in defamation proceedings. A publication may contain words capable of damaging reputation, yet the defendant may still succeed by proving a recognised defence. It also confirms that qualified privilege depends on the circumstances of publication and can be defeated only by persuasive proof of express malice. Finally, the judgment serves as a caution that constitutional press freedom does not immunise newspapers from defamation claims, although the claimant must still satisfy the evidential burden required to displace a privilege.