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SUPREME COURT OF NIGERIA
(1973) All N.L.R 720
BEFORE THEIR LORDSHIPS:
Tort – Defamation – Claim for damages for libel – Defence of privilege
Civil Procedure -Application for further and better particulars – Pleadings.
Chief F.R.A. Williams (with him Mr. Bayo Kehinde) for the Appellants.
Mr. A. O. Orakwusi for the Respondents.
UDOMA, J.S.C. (Delivering the judgment of the Court): This is an appeal by the plaintiff against the defendants on 22nd February, 1971 in favour of the defendants by Odesanya, J. in Suit No. LD/502/70 in the High Court of Lagos State. The appeal raises an important point of law on pleading, practice and procedure.
The claim is for the sum of £50,000 being damages for libel alleged to have been published in an issue of the ‘Daily Express’ newspaper of 20th July, 1970 and for an injunction.
Pleadings having been ordered were duly filed and delivered. Only paragraph 4 of the statement of claim and paragraphs 7,8 and 9 of the statement of defence need be referred to In this judgment, as we think they are the only parts of the pleadings which are of relevance to the issue in controversy in the appeal.
In paragraph 4 of the statement of claim, the plaintiff set out in substance the libel complained of in the following terms:
“4. On page 6 of the issue of the said newspaper dated July 20th 1970 under the caption ‘warning’ the Defendants falsely and maliciously printed and published or caused to be printed and published of the plaintiff and of him in the way of his said offices and in relation to his conduct therein the following words:-
The Public are hereby informed that Mr. Oluwole Obikoya is not the Manager, director, or chairman or Managing Director of Pool House Group Nigeria Limited and has no authority to so represent himself or transact any business for and on behalf of the Company.
Any person who deals with him In any capacity whatsoever or have so dealt with him does so or have done so at his or her own risk.”’
In answer to the averments contained in paragraph 4 of the statement of claim, the defendants purported to set up a defence of privilege. This, as pleaded in paragraph 7 and 8 reads:
“7. In further answer to paragraph 4 of the statement of claim the 2nd and 3rd Defendants say that they printed or published the said words (if at all) bona fide and without malice upon a privileged occasion.”
The said words were printed and published by the 2nd and 3rd defendants in the ordinary course of business and such printing and publication was reasonably incidental to their transmission to the public by the 1st defendant as holder of the offices herein mentioned in the said Company and in the fulfillment or exercise of his rights and duties as such holder.”
There was also paragraph 9 of the statement of defence, the averments contained therein being as follows:
“9. TheIstdefendantadmitscausingtheprintingandpublishingofthesaidwords but deny malice or falsity. The said words were published of the Plaintiff bona fide and without malice towards the Plaintiff and under a sense of duty In the honest belief that they were true. The occasion is therefore privileged.”
In view of the defence of privilege purportedly raised in paragraph 7 of the statement of defence, the plaintiff by letter addressed to the solicitor for the defendants requested for further and better particulars of the facts and circumstances to be re lied upon by the defendants as rendering the occasion of the publication complained of privileged. The request was subsequently followed by an application to the court by motion for direction that further and better particulars be supplied to the plaintiff for the avoidance of embarrassment at the trial; and that paragraph 8 of the statement of defence be struck out as “it does not contain any defence to the action.”
The motion was heard in due course. In resisting the application, the defendants maintained that paragraph 8 of the statement of claim contained sufficient and adequate particulars In support of the plea of privilege pleaded In paragraph 7 of the statement of defence.
In his ruling, the learned Judge, after setting out paragraph 8 of the statement of defence in extenso, refused the plaintiffs application to strike out. He held that both paragraph 8 and 9 of the statement of defence contained all the particulars “called for” and even “adds justification to the defence.”
The plaintiff now appeals against the ruling on three grounds, which was argued before us may be stated in the following tern or terns to like effect:-
The three grounds of appeal were by leave of the court argued together.
In his submissions, Chief Williams stated as a general proposition of law of undoubted authority that in an action for libel, once a defence of qualified privilege has been properly pleaded, it becomes the duty of the plaintiff, if he is to succeed in his action, to prove express malice; in which event the plaintiff may consider it prudent to file and deliver a reply to the defence of privilege by alleging express malice. It follows, therefore, that a defence of qualified privilege must be clearly and unambiguously pleaded; and that the facts and circumstances which would be relied upon at the trial as rendering the occasion of the publication privileged must be set out in the pleadings in terms sufficient to give adequate notice to the plaintiff of the case he is to meet at the trial.
Learned counsel then drew the attention of the court to paragraph 4 of the statement of claim and the defence thereto as contained in paragraph 7 of the statement of defence. He stressed that the publication complained of concerns a company; and contended that such a publication, the subject matter of the libel, could not be covered by a defence or qualified privilege. He submitted that where a statement of defence contains an averment purported to be a defence which plainly and obviously cannot be supported in law as disclosing such a defence, the plaintiff is entitled to move the court to have such an averment struck out on the ground that it does not disclose a defence to the action; that on the face of the statement of defence it is plain and obvious that paragraph 7 and 8 of the statement of defence are incapable of supporting a defence of qualified privilege and ought to have been struck out by the learned Judge; that the learned Judge was wrong in law in particular to have rejected the plaintiff’s application to strike out paragraph 8 of the statement of defence, and to have refused to order further and better particulars of paragraph 7 of the statement of defence and that this court should so hold. In support of these submissions, learned counsel cited and relied on Greenslade v. Swaffer (1955) 1 W.L.R. 1109; Kemsley v. Foot (1952) A.C. 345; Adam v. Warri(1917) A.C. 309; Boston v. Bagshawand Sons 91966) 2 All E.R. 906; Chapman v. Ellesmere (1932) 2 K.B. 431; Cutler v. McPhail (1962) 2 O.B. 292; and Standen v. South Essex Recorders Limited & Anor. 50 T.L.R. 365.
For the defendants, Mr. Orakwusi referred to Gatley on Libel and Slander, 6th Edition at page 243 paragraph 528, which according to him, sets out the circumstances in which a defence of qualified privilege could avail a defendant in a libel action. He then contended that, where a defence of qualified privilege has been pleaded and an application is made by the plaintiff for further and better particulars, on the authority of Elkington v. London Association for the Protection of Trade (1911) 27 T.L.R. 329, it is necessary that the particulars requested be clearly identified in such an application; and that the learned Judge was right in refusing to strike out paragraph 7 of the statement of defence because the issues as pleaded were clearly identified, there being no ambiguity.
Learned counsel, however, conceded that the defendants in their submission in resisting the application of the plaintiff before the learned Judge did not crave in aid the averments contained in paragraph 9 of the statement of defence upon which the learned Judge relied for his decision. Further, he contended that even so, the application was rightly refused as it was unnecessary, as the matter could have been dealt with at the trial.
Now we think that the issue in controversy is a very simple one. Put in a nutshell, the main issue for decision by this court is as to whether or not the learned Judge ought to have struck out paragraph 8 of the statement of defence as disclosing no defence of qualified privilege in the absence of allegation of facts and circumstances upon which the defendant proposed to rely at the trial to sustain the defence, and whether the absence of such facts and circumstances was likely to cause embarrassment to the plaintiff at the trial and also as to whether the learned Judge ought to have ordered that further and better particulars of the averments contained in paragraph 7 of the statement of defence be supplied to the plaintiff.
Only two of all the English authorities cited to us we find of some assistance and as relevant to the point at issue in this appeal. For instance, Standen v. South Essex Records Limited & Anor. (supra); Adam v. Warri (supra); and Chapman v. Ellesmere & Others (supra) are irrelevant to the issue for decision in this appeal because all of those cases had proceeded to trial and evidence was duly and properly heard before decisions were reached. It is of course true that in Standen v. South Essex Recorders Limited & Anor. (supra), in particular, it was ruled by the court that the defence of privilege was not open to the defendant therein but that he could proceed on the other grounds raised in the defence – namely, that the publication complained of was a fair comment on a matter of public interest; and that the facts which were stated in the alleged libel were true in substance and in fact. But that decision was arrived at after the hearing of evidence in the case on the defence of privilege as a preliminary issue.
No question of application for further and better particulars arose for consideration by the court prior to the hearing as in the present case on appeal. No evidence of any kind has been given in this case since that stage has not been reached in the proceedings, having regard to the application for particulars made to the learned Judge.
On the other hand, the circumstances which arose in Kemsley v. Foot (supra), although not quite opposite in that the defence pleaded therein was fair comment and not privilege, would appear to approximate to the circumstances of the present appeal. In that case, after the close of pleadings, an application by summons was made under Order 19, Rule 27 and Order 25 Rule 4 of the English Rules to strike out the defence of fair comment as pleaded in paragraph 5 of the statement of defence therein and particulars thereunder “on the ground that the same are vexatious and contrary to the rules and tend to embarrass prejudice and delay the fair trial of the action and disclose no reasonable answer and are frivolous.
The Master to whom the application was made refused to strike out the said paragraph or any of the particulars thereunder. On appeal, Parker, J. in chamber struck out the paragraph and all the relevant particulars. On a further appeal, the Court of Appeal allowed the appeal and restored the order which was made by the Master
The appeal was finally taken to the House of Lords. There one of the points argued was whether an application in chambers to strike out paragraph 5 of the defendant’s defence was properly the subject of such a summons or whether the matter should not have been dealt with by other means, e.g. by an objection taken in the pleadings and by setting down the point for argument under Order 25, Rule 2.
In dealing with this point, Lord Porter at pages 353-354 said:
“This application to strike out was in fact made on a summons in a libel action under Order 19, r.27, and Order 25, r.4. The comment upon these matters is said to be criticism of the way in which the plaintiff’s newspapers are conducted and to assert that that conduct is of a low character, that the defendants are entitled to criticise that conduct, and, as it is a matter of public interest, to comment fairly upon it. The plaintiff, on his part, maintains that the right of comment is dependent upon the existence in the words alleged to be libellous of a statement of some fact or facts upon which comment is made so that those reading the comment may be able to Judge for themselves whether it is justified or not.
The defendants say that, in a case where the dispute between the opposing sides is one of this nature, an attempt to strike out paragraph 5 of the defence under the rules and orders specified above is not justified. Those rules should, they maintain, be used only in plain and obvious cases: H a serious discussion of legal principles is required, the point at issue should be taken in the pleadings and set down for argument under Ord. 25, r.2. at the request of both parties, however, the Court of Appeal decided the substantive question as well as that concerned with procedure, and as they have done so, all your Lordships have thought ft proper to determine that matter and have not heard argument upon the technical question as to the propriety of the course adopted. They have assumed that the application to strike out was rightly made and accordingly have confined their consideration to the question of the correctness of the order made by the Court of Appeal in refusing to strike out paragraph 5 of the defence on the ground that no, or no sufficient, statement of the facts on which the comment is made appears in the article complained of.”
In Elkington v. London Association for Protection of Trade (supra) – the defendants, an association of traders formed for the purpose, inter alia, of supplying information on its members, issued a report in which appeared an enquiry as to the address of the plaintiff above named. The plaintiff sued the defendants in respect of the publication, alleging that by ft the defendants meant and were understood to mean that he had moved from the address where he resided for 8 years and where he still resided, without leaving any indication of his movements, with the object of avoiding the payment of his debts.
The defendants denied the innuendo and pleaded that the words were published on a privileged occasion and without malice. By their particulars the defendants stated that a member of their association made an enquiry with regard to the plaintiff, and the secretary, in pursuance of his duty to further the objects of the association, instructed their enquiry officer to enquire for the plaintiff and that the enquiry officer was informed that the plaintiff had left. Thereupon the defendants in the honest belief that this was true, published the information for the benefit of the members.
On application, further and better particulars were ordered by the Master. The order was affirmed by the Judge in chambers. On appeal to the Court of Appeal, ft was held that the defendants were bound to give further particulars to enable the plaintiff therein to test the question whether the enquiry was made by a member of the defendant’s association.
In his judgment, Farewell, L.J. said at page 330, that the object of particulars was to enable the side to whom they were given to know what evidence they ought to be prepared with; and that the particulars as they stood did not enable the plaintiff to test the question whether the enquiry was made by a member of the association. On a careful consideration of the point at issue, we think that for our decision in this appeal, it is not necessary to wander as far afield as the English rules of practice and procedure. Order 32, Rule 19 of the Rules of the High Court of Lagos makes ample provision for this purpose, the terms whereof are the following:-
“The Court may at anytime, on the application of either party, strike out any pleading or any part thereof, on the ground that it discloses no cause of action, or no defence to the action, as the case may be, or on the ground that it is embarrassing, or scandalous, or vexatious, or an abuse of the process of the court, and the court may ether give leave to amend such pleading or may proceed to give judgment for the plaintiff or defendant, as the case may, or may make such other order, and upon such terms and conditions, as may seem just.”
It occurs to us that on the authority of the above rule, a party is entitled to apply to strike out any pleadings purporting to be a defence or any part thereof on the ground that it discloses no defence to the action or that it is embarrassing and the court may either give leave to amend such pleading or may make such other order as may seem just.
We have examined paragraph 7 of the statement of defence and are of the view that as it stands, without more, it does not disclose a defence of qualified privilege. The plaintiff is entitled to be supplied with, and the defendants are bound to supply to him further and better particulars of the circumstances which would be relied upon at the trial as rendering the occasion of the publication of the alleged libel privileged. Such particulars would enable the plaintiff to know the type of defence he is to meet and the nature of the evidence likely to be produced at the trial and may necessitate his filing a reply thereto.
The averments contained in paragraph 8 of the statement of defence relied upon by the defendants herein as supplying the requisite particulars cannot be said to contain such particulars as would render the occasion of the publication privileged. It is not therein disclosed the circumstances which would render the occasion privileged or the nature or type of duty owed to the public by the first defendant, who is described as Permanent and Managing Director and Chairman of an apparently private company, to communicate information, the subject of the alleged libel to members of the public and the right of the public to be regaled with such information concerning a “minority shareholder.”
The learned Judge was in error in refusing to strike out the paragraph. Furthermore, the learned Judge misdirected himself in holding that paragraph 9 of the statement of defence supplied some of the requisite particulars as that was contrary to the submission of the defendants who relied mainly on the averments contained in paragraph 8 of the statement of defence. If, as it is alleged in paragraph 9 of the statement of defence, the matter complained of was published in the honest belief that it was true, then, we believe, that would appear to be a straight plea of justification. This belief is reinforced by the fact that soon thereafter, the plea of justification is clearly set out in paragraph 10 and subsequent paragraphs thereto of the statement of defence.
In the result this appeal succeeds. It is allowed. The order of the learned Judge refusing to order further and better particulars of the averments contained in paragraph 7 and to strike out paragraph 8 both of the statement of defence, the latter as disclosing no defence to the action is set aside; and we make the following orders:
Costs of this appeal to the appellant are assessed and foted at N121.00.