EBONG V. UNIVERSITY OF UYO (2019)

Background

Dr. Inih A. Ebong, an associate professor and former acting head of department at the University of Uyo, challenged the termination of his employment and a newspaper disclaimer published after the termination. The disclaimer, published in The Punch newspaper by or on behalf of the University, stated that Dr. Ebong was no longer employed by the University and warned that anyone dealing with him on behalf of the University would do so at his or her own risk. Dr. Ebong contended that the publication was libellous, malicious and damaging to his professional reputation. He sued the University of Uyo and Punch (Nigeria) Ltd., seeking declarations, retraction, public apology, injunctions and substantial general, aggravated, exemplary and special damages.

The action was initially commenced at the Federal High Court but was transferred to the High Court of Akwa Ibom State for want of jurisdiction. The High Court dismissed the claim. Dr. Ebong appealed to the Court of Appeal, arguing principally that the trial court had improperly raised issues suo motu, failed to evaluate the evidence properly and wrongly held that publication to a third party had not been established.

Issues

1. Whether the trial court’s decision to raise questions concerning publication to a named third party, after the parties had settled an issue for determination, occasioned a miscarriage of justice.
2. Whether Dr. Ebong was required to plead that a particular third party, including PW2, had read the publication.
3. Whether the trial court was right to require evidence showing how the witness understood the allegedly defamatory words.
4. Whether the evidence had been improperly evaluated or left unevaluated.

Ratio Decidendi

The Court of Appeal held that a court may raise an issue suo motu where doing so serves the interests of justice. However, the court must give the parties, particularly the party likely to be prejudiced, an opportunity to address the issue before relying on it. This requirement is rooted in the constitutional guarantee of fair hearing. In the present case, the trial court had invited the parties to address it on the publication issue. Consequently, no miscarriage of justice was established.

The court further held that publication is an essential element of libel. It is not enough to prove that the defendant printed or circulated the words. The claimant must show that the defamatory matter was communicated to a person other than the claimant and must, in principle, plead publication to a named or identifiable third party. Although a newspaper publication may reach an indeterminate class, the claimant must lay an appropriate pleading foundation, such as an averment that the words were published to persons not yet identifiable and that reliance would be placed on persons subsequently discovered to have read them.

Dr. Ebong pleaded publication to “the Nigerian public and the world at large,” but did not identify PW2 as a person who read the disclaimer or plead the facts establishing that PW2 was the relevant third party. Evidence cannot properly be founded on facts absent from the pleadings. The court therefore upheld the finding that publication, in the legal sense required for defamation, had not been proved.

Court Findings

The court also considered the intrinsic meaning of the disclaimer. A defamatory statement is one that lowers a person in the estimation of right-thinking members of society, exposes the person to hatred, contempt or ridicule, causes others to shun or avoid the person, discredits the person in his or her profession, or injures financial reputation. Words must be given their ordinary and natural meaning, not a strained or forced interpretation.

The court concluded that the disclaimer, viewed in its ordinary meaning, merely informed the public that Dr. Ebong was no longer employed by the University and warned that he had no authority to represent it. It did not expressly accuse him of fraud, misconduct or criminality. The extensive innuendos pleaded by Dr. Ebong— including allegations that he was a fraudster, cultist, criminal or public risk—could not be imported into the publication from unrelated disputes or other documents. The alleged defamatory meaning had to arise from the publication itself.

In addition, the University was entitled, on the evidence, to rely on justification and qualified privilege. The statement that Dr. Ebong was no longer employed was true, and the University had a legitimate interest and public duty to prevent members of the public from mistakenly dealing with him as its representative.

On the complaint of wrongful evaluation, the appellate court held that an appellant must identify the specific evidence not evaluated or improperly evaluated and demonstrate convincingly that correcting the error would have produced a different result. Dr. Ebong failed to meet that burden. The trial court’s discussion of the evidence, including its alternative observation that the claim might otherwise have succeeded, demonstrated that the evidence had been considered.

Conclusion

The appeal was dismissed. The judgment of the High Court of Akwa Ibom State, which dismissed Dr. Ebong’s defamation claim, was affirmed. The Court of Appeal made no order as to costs.

Significance

The decision reinforces the importance of pleading and proving publication in Nigerian defamation actions. It clarifies that publication to “the general public” does not automatically dispense with the need to establish communication to a third party. It also confirms that courts may raise decisive legal issues on their own initiative, provided parties are heard, and that appellate intervention in the evaluation of evidence is exceptional and dependent on a clear demonstration of material error.