VANGUARD MEDIA LTD v. BRIGHTWATERS ENERGY LTD & ANOR
(2022)LCN/16604(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Monday, August 22, 2022
CA/A/54/2020
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
VANGUARD MEDIA LIMITED APPELANT(S)
And
1. BRIGHTWATERS ENERGY LIMITED 2. SCOTT GREGORY RESPONDENT(S)
RATIO
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
It has been settled by numerous cases without limit, that jurisdiction is the life wire of a case, and for that reason deserves to be determined first in time, the rationale being that where a Court lacks the jurisdiction to determine a case, the proceedings remain nullity ab initio, regardless of how well conducted and decided the case may be. See Oloba vs. Akereja (1988) 3 NWLR (pt. 84) 508, Odofin vs. Agu (1992) 3 NWLR (pt. 229) 350. PER BARKA, J.C.A.
ESSENTIAL ELEMENTS TO PROVE THE TORT OF LIBEL
The Apex Court in the case of CSSD Farms Ltd vs. Schlumberger (2019) ALL FWLR (pt. 972) 180 AT 212, enumerated the essential elements that must be proved in establishing the tort of libel to include:
i. Published a statement in a permanent form
ii. The statement referred to him
iii. The statement was defamatory of his person in the sense that:
i. It exposed him to hatred, ridicule or contempt.
ii. It lowered him in the estimation of right-thinking members of the community/society
iii. It injured his reputation in his office, trade or profession
iv. It injured his financial credit.
All the ingredients of the offence must be established, and where any of the elements remains unproven, the action fails. PER BARKA, J.C.A.
WHETHER OR NOT PUBLICATION IS AN ESSENTIAL ELEMENT IN PROVING THE TORT OF LIBEL
Dr. Frank Chude, the learned counsel for the appellant argued, and correctly too in my view that publication is an essential element in proving the tort of libel, and that which gives the Court the jurisdiction determining the suit. Further still, it is where the publication is published and read by a third party that determines the territorial jurisdiction of the Court.
See also Sketch Publishing Co. Ltd vs. Ajagbemokeferi (1989) 1 NWLR (pt. 100) 678, Iloabachie vs. Ilobachie (2005) ALL FWLR (pt. 272) 223, Guardian Newspapers Ltd vs. Ajeh (2011) 10 NWLR (pt. 1256) 574 AT 588, amongst many other cases. This is so because in the consideration of whether the words complained of are defamatory, the language employed and the nature of the claim allows the Court to infer whether reasonable men would come to the conclusion that the words convey imputations suggested by the plaintiff, and the effect on the person to whom it was published. See CSSD Farms Ltd vs. Schlumberger (supra) AT 205, Sketch Publishing Company Ltd vs. Ajagbemokeferi (1989) 1NWLR (pt. 100) 678, Okolo vs. Midwest Newspaper Corporation (1977) 1SC 33, UBA Plc vs. Davies (2011) 11NWLR (1259) 591 AT 624, per Hussain Muktar JCA. It flows therefrom as posited that for a plaintiff to succeed in a case of libel, there must be proof by evidence of the reaction of a third party after reading the published material or publication, since a person’s reputation is gauged on the estimation of others on him as against what he thinks his reputation is. See Nsirim vs. Nsirim (1990) SCNJ 174 AT 184, Iwueke vs. Imo Broadcasting Corporation (2005) 17NWLR (pt. 955) 447 AT 482. This Court had held in the case of Popoola vs. Edobor (2017) LPELR-42539 (CA) per Fasanmi JCA that:
“In defamation matters, the mere making of the defamatory statement to the plaintiff does not constitute a cause of action as the defamatory statement must be published to a third party. The reason for this is that defamation does not consist in what the plaintiff thinks of himself, but of the opinion that others hold of him. Thus, one basic ingredient of defamation whether libel or slander is publication. In other words, the plaintiff is under a burden to prove that the defamatory statement was published to a third party and the law requires that the third party must not only be named but must be clearly identifiable and identified. Once a publication is not clearly pleaded and proved, the case is bound to collapse.” PER BARKA, J.C.A.
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): This appeal is against part of the decision of Hon. Justice S. Garba of the High Court of Justice, Federal Capital Territory, Abuja in suit with No. FCT/HC/CV/2282/2017, delivered on the 22nd day of November, 2019. In the said judgment located at pages 501 – 543 of the record, the lower Court held that:
In conclusion, I am of the firm view that the claimants have proffered credible and cogent evidence to warrant judgment in their favor. Accordingly, judgment is entered in favor of the claimants against the defendants as follows:
i. That the advertorial published of and concerning the claimants and the claimant’s business, which advertorial was in large and prominent full-page type in a conspicuous place on page 39 of Vol. 25 No. 63319 in the Vanguard Newspaper of Monday 26th June, 2017, and was read and seen by subscribers of Vanguard Newspapers and others who purchased and/or read the Newspaper, is libelous of the claimants and a defamation of the claimants.
ii. The sum of N10, 000, 000.00 (Ten Million Naira) only is awarded as general damages against the defendant for the defamation of the claimant’s reputation, character, goodwill and business by reason of the defendant’s publication of an advertorial captioned “AMCON VS. UNION WORKERS OF WILBROS NIGERIA: MR PRESIDENT, SENATE AND HOUSE OF REPRESENTATIVES, PLEASE SAVE US AND COME TO OUR RESCUE” on Monday 26th June, 2017 on page 39 of Vol. No. 63319 of the Vanguard Newspaper.
iii. The defendant by itself or through its agents or through third parties, proxies or servants howsoever described are restrained from further publication, writing, printing, circulating or causing to be written, printed, circulated or otherwise published any further scandalous defamatory statement or concerning the claimants.
HISTORY OF THE CASE.
The Respondents on the 2nd day of August, 2017 filed a writ of summons against the respondents, later amended with the leave of Court, and by the amended writ and statement of claim filed, the claimants, now respondents, sought for the following reliefs:
i. A declaration that the advertorial published of and concerning the Claimants and the Claimants’ business, which advertorial was in large and prominent full page type in a conspicuous place on page 39 of Vol. 25, No. 63319 in the vanguard Newspaper of Monday, 26th June, 2017, and was read and seen by subscribers of Vanguard Newspaper and others who purchased and/or read the newspaper, is libelous of the Claimants and a defamation of the Claimants.
ii. The sum of N 1,237,374,336.6 (One Billion, Two Hundred and Thirty-seven Million, Three Hundred and Seventy-four Thousand, three Hundred and Thirty-six Naira Forty Kobo) only as special damages for the losses and damages incurred by the Claimants as a result of the Defendant’s defamatory publication.
iii. The sum of Ten Billion Naira (N10,000,000,000.00) as general damages for the defamation of the Claimants’ reputation, character, goodwill and business by reason of the Defendant’s publication of an advertorial captioned “AMCON VS UNION WORKERS OF WILBROS NIGERIA: MR. PRESIDENT, SENATE AND HOUSE OF REPRESENTATIVES, PLEASE SAVE US AND COME TO OUR RESCURE” on Monday, 26th June, 2017, on page 39 of Vol. 25, No. 63319 of the ‘Vanguard Newspaper’ a nationally and international circulated newspaper including Abuja within the jurisdiction of this Court.
iv. A perpetual injunction restraining the Defendant by itself or through its agents, or through third parties, proxies or servants howsoever so described from further publication, writing, printing, circulating or causing to be written, printed, circulated or otherwise published any further scandalous defamatory statements of or concerning the Claimants.
v. A written apology from the Defendants, and a retraction of the advertorial of Monday, 26th June, 2017, on page 39 of Vol. 25, No. 63319 of the ‘Vanguard Newspaper’ captioned “AMCON VS UNION WORKERS OF WILBROS NIGERIA: MR. PRESIDENT, SENATE AND HOUSE OF REPRESENTATIVES, PLEASE SAVE US AND COME TO OUR RESCURE” in Five (5) National Daily Newspapers with similar coverage to the Vanguard Newspaper (With full page devoted for the retraction in each of the Five (5) newspapers).
vi. The cost of this suit including attorney fees in the sum of US $150, 000.00 (One hundred and Fifty Thousand US Dollars) or N54, 000,000.00 (Fifty-Four Million Naira) only.
Upon service of the amended writ of summons, statement of claim and all other processes on the defendants now appellants, Appellants filed a statement of defense also amended with the leave of Court on the 14th day of June, 2018. This is located at pages 392 – 408 of the record, wherein the defendant denied the claim by the claimants and also raised the defense of qualified privilege. Issues having been joined, trial proper commenced with the 2nd respondent Scott Gregory, testifying as well as the 1st respondent, tendering in the process several documents including the said defamatory advertorial of the 26th of June, 2017 marked as Exhibit 5, and sundry other documents.
At the close of trial, and adoption of written addresses by the learned counsel representing the parties, the trial Court considered the totality of the case in reaching the vexed judgment delivered on the 22nd day of November, 2019 in favor of the plaintiffs/Respondents to the effect that:
i. That the advertorial published and concerning the claimants and the claimant’s business, which advertorial was in large and prominent full-page type in a conspicuous place on page 39 of Vol. 25 No. 63319 in the Vanguard Newspaper of Monday 26th June, 2017, and was read and seen by subscribers of Vanguard Newspaper and others who purchased and/or read the Newspaper is libelous of the Claimants and a defamation of the Claimants.
ii. The Sum of N10,000.000.00 (Ten Million Naira) only is awarded as general damages against the Defendant for the defamation of the Claimants’ reputation, character, goodwill and business by reason of the Defendant’s Publication of an advertorial caption.“ AMCON VS UNION WORKERS OF WILBROS NIGERIA: MR. PRESIDENT, SENATE AND HOUSE OF REPRESENTATIVES, PLEASE SAVE US AND COME TO OUR RESCUE” on Monday 26th June, 2017 on page 39 of Vol. 63319 of the Vanguard Newspaper.
iii. The Defendant by itself or through its agents or third parties, privies or servant howsoever are restrained from further publication, writing, painting, circulating or otherwise published any further scandalous defamatory statement of or concerning the Claimants. (See page 501-543 of the Records).
The Appellant was unhappy with the decision rendered by the lower Court, and in showing his displeasure filed a notice of appeal on the 6th day of December, 2019 predicated on 16 grounds of appeal. From the said grounds of appeal, and in the appellant’s estimation the following issues were said to have arisen for the resolution of the appeal:
i. Whether the trial Court has the requisite jurisdiction to hear and determine this case as presently constituted? (Grounds 4 &13)
ii. Whether the learned trial judge was right when he held that the appellant defamed the respondents (Grounds 1, 8, 9, 12 and 16).
iii. Whether the learned trial judge was right when he found for the respondents in the absence of a third party’s evidence (Grounds 2, and 6)
iv. Whether the defense of qualified privilege availed the appellant? (Ground 3 and 11)
v. Whether the trial Court properly evaluated the evidence and issues before it viz-a-viz the exhibits (Ground 7 and 14).
vi. Whether the learned trial Court was right to have awarded the sum of N10,000,000.00 (Ten Million Naira) only as general damages (Grounds 5 and 15).
The respondents also proffered the following issues in the determination of the appeal:
i. Whether the learned trial Court was right when it held that the Respondents/Cross-Appellants proved that the advertorial by the Appellant/Cross-Respondent in a large and prominent full-page type in a conspicuous place on page 39 of Vol. 25, No. 63319 in the Vanguard Newspaper of Monday, 26th June, 2017, was defamatory of the Respondents/Cross-Appellants. (Distilled from grounds 1, 2, 5, 6, 9, 10, 12, 15 and 16)
ii. Whether the learned trial Court was right to have assumed territorial jurisdiction and had considered all the issues submitted by the Appellant/Cross-Respondent in its final written address and adequately and properly evaluated the evidence of parties before making its finding and reaching the final decision. (Distilled from grounds 3, 4, 7, 13 and 14)
iii. Whether the defense of qualified privilege could have availed the Appellant/Cross-Respondent in the circumstance of the Respondent/Cross-Appellant’s suit. (Distilled from grounds 8 and 11).
Having carefully studied the grounds of appeal, the record and submissions of the learned counsel, I am of the humble view that the appeal can be resolved using the issues formulated by the learned counsel for the appellant. Accordingly, I elect to be guided by those issues enumerated by the appellant, but intend to consider issues 1, 2 and 3 at the same time, and thereafter issues 4, 5 and 6, being that the issues are intertwined and interrelated.
ISSUES 1, 2 and 3.
– Whether the trial Court has the requisite jurisdiction to hear and determine this case as presently constituted?
– Whether the learned trial Judge was right when he held that the Appellant defamed the Respondents.
– Whether the learned trial Judge was right when he found from the Respondents in the absence of a third parties Evidence.
The learned counsel for the appellant argued the three issues spanning from pages 4 – 12 of the appellant’s brief. On the first issue, it was submitted that the trial Court had no jurisdiction over the matter as there was no cause of action, and the claimants who are now respondents failed to call a witness who testified that he read the vexed publication in Abuja within the jurisdiction of the Court. Learned counsel submitted also that the proof of publication is an essential element upon which the success of the tort of libel is anchored, and therefore goes to the jurisdiction of the Court. He argued that where the publication is read determines the territorial jurisdiction of the Court, and referred to the case of Iwueke vs. Imo Broadcasting Corporation (2005) 17NWLR (pt. 955) 447 AT 482. He posits that the only reason for the failure of a third-party adducing evidence aside the claimant, is that no one else beside the claimant read the alleged offensive publication. Further referring to the case of Alhaji Wada Nas vs. Senator (Chief) Abraham Adesanya (2002) LPELR – 7070 (CA) and Mbadinuju vs. Independent Communications Network (2007) LPELR – 4240 (CA), to submit that there was neither a cause of action, moreso as there was no evidence to show that the libelous material was read in Abuja within the jurisdiction of the Court.
On the holding that Appellant defamed the Respondent, learned counsel argued that the alleged offensive publication was a sponsored advertorial duly paid for by a named customer, the professional integrity group, published without variation or addition, for which the claimants failed to lead evidence of the alleged defamatory imputation. Counsel further argued that documents were merely dumped on the Court without any effort at linking them to the facts of the case citing Odeh & Anor vs. Ahubi & Ors (2015) LPELR – 41783 (CA). He accused the Court for trying to link the dumped documents to the claimant’s case, thereby contradicting himself. He referred to the cases of SOA Popoola Esq. vs. Mr. Ebenezar Edobor & Ors (2017) LPELR-42539 (CA) and Unity Bank Plc vs. Mr. Akinlabi S. Oluwafemi (2006) LPELR – 9847 (CA) to argue that the evidence adduced before the lower Court comprised of what the claimants think of themselves as against the opinion others hold of them, contending that there was no basis upon which the trial Court ought to have found that appellants defamed the respondents.
Further submitting on whether the trial Court was right to have found for the respondent in the absence of evidence from a third party, counsel stated that the respondent failed to call any witness, being that the 2nd Respondent the owner of the 1st Respondent, gave evidence in respect of same which was not enough to have discharged the onus entitling them to judgment. He placed reliance on the case of Nigerian Westminister Dredging vs. Tunde Smooth & Anor (2011) LPELR – 4619 (CA). He maintains that for a plaintiff to succeed in libel cases, there must be proof by a third party on the effect of the publication and relied on the case of Daily Telegraph Publishing Ltd vs. Ekeuwei (2019) 14NWLR (pt. 1693) finally submitting that respondents failed to discharge the legal burden on them in proof of defamation and thereby urged the Court to resolve the issues in its favor.
With respect to the fourth issue, whether the defense of qualified privilege is available to the appellant, learned counsel made reference to the statement of defense before the lower Court, where the ingredients of qualified privilege were outlined positing that appellant in the circumstance was duty bound to publish such information for the benefit of the public. He also referred to Order 15 Rule 17(2) of the High Court of the Federal Capital Civil Procedure Rules 2018, which provision is mandatory contending that respondents failed to establish malice, and the case of Inland Bank Plc vs. F & S (2010) 15 NWLR (pt. 1216) 395 (CA) referred to. Learned counsel then drew the attention of the Court to the provision of Section 22 of the CFRN 1999 (as amended), along with the case of Gomes vs. Punch (1999) 5 NWLR (pt. 603) 303 @ 311, on the duty of the press with regards to dissemination of information, submitting that the contentious publication was made without malice and in the discharge of its public duty.
On whether the lower Court properly evaluated the evidence before it, it was contended that the trial Court failed to resolve all the issues raised by the parties. In particular, learned counsel alluded to the issue of jurisdiction raised by the appellants, relying on the decision of Rhodes-Vivour JSC, in Mbadinuju vs. Independent Communications Network (supra), which the trial Court brushed aside, thereby breaching appellant’s constitutional right to fair hearing. Lastly, on the award of the sums of Ten Million Naira to the respondent, it was contended for the appellant that the award had no basis in that respondent failed to prove its case. He alluded to the finding of the lower Court in the judgment, but wondered how the Court now somersaulted to award the sum of Ten Million Naira as damages. He urged the Court to resolve the issue against the respondents and to conclusively allow the appeal, and set aside the judgment of the Court below.
Mr. Robert Odihii, of learned counsel, proffering arguments in response to the submissions of the learned counsel for the appellant, and in his own estimation identified three issues, argued simultaneously from pages 8 – 31 of the brief. With respect to his first issue, whether respondent proved that the publication in issue was defamatory of the respondent, alluded to the advertorial contained in Exhibit 5 before the trial Court, contending that the finding of the lower Court that the publication is defamatory of the respondent is well founded. Learned counsel identified the essential ingredients that can sustain an action based on libel and quoting extensively the holding of the trial Court at pages 523 – 524 maintained that the finding of the lower Court is without fault. On the appellant’s arguments in their issue three, hinged on the decision of Nigerian Westminster Dredging vs. Tunde Smooth & Anor (supra), it was argued that the situations and circumstances in the two cases are not the same, and therefore that authority not applicable. Learned counsel also referred to paragraphs 2-4 of Exhibit 90, retorting that the respondent is not mandatorily required to call a third party. He contended that evidence was led to show that the publication was false intended to injure, vex, harass annoy and hurt the respondent’s goodwill thus resulting to exposing the respondent to ridicule, contempt, hatred and public odium.
On whether the trial Court was right to have assumed territorial jurisdiction and considered all the issues submitted by the appellant, and adequately and properly evaluated the evidence of the parties, it was submitted that the trial Court eminently evaluated the evidence before it to the conclusion that it had territorial jurisdiction to have entertained the suit. It was argued still that the lower Court considered the preliminary issue raised by the appellant at page 517 – 518 of the record and dismissed the same. On the failure of the respondents to call a third party, counsel referred to page 524 of the record, contending that the issue was considered by the trial Court. Pursuant thereto counsel urged the Court to resolve the issue against the appellant.
Also submitting on whether the defense of qualified privilege could have availed the Appellant, learned counsel relied on the English case of Adam vs. Ward (1917) AC 309 @ 334, Ojeme vs. Momodu (1994) 1 NWLR (pt. 323) 701, and Gomes vs. Punch (Nig) Ltd (1999) 5 NWLR (pt. 602) 303 @ 312 on the properties of the defense of qualified privilege, and further alluded to the findings of the lower Court at page 530 – 533 of the record insisting that the finding on the issue by the trial Court cannot be faulted. On the duty of the appellant to publish the advertorial for the interest of the public, it was contended that appellant had the corresponding duty to verify or investigate the information so as to verify the veracity of such information and relied on African Newspapers (Nig) Plc vs. Useni (2015) NWLR (pt. 464) 486 – 487, Din vs. African Newspapers (Nig) Plc (1990) 3NWLR (pt. 139) 392 @ 408. On the argument that respondent failed to file a reply to the amended statement of defense stating the particulars of malice, it was argued that the actual malice by the appellant was clearly established having recklessly failed to investigate the falsity or otherwise of the advertorial before publication, and therefore needless filing a reply thereto. He posited that the finding of the lower Court in that regard was clearly justified, pointing out that the defense of qualified privilege couldn’t have availed the appellant having regard to the careless manner in which the publication was made on Monday the 26th day of June, 2017. He urged the Court to resolve the issue against the appellant and to dismiss the appeal in its entirety.
Responding on points of law, and with respect to issue one argued by the learned counsel for the respondent, Dr. Chude, the learned counsel for the appellant made reference to the holding of the lower Court at page 524 – 525, and also alluded to the two letters authored by the appellant to the respondent contending that the conclusion of the lower Court that respondents had proved by documentary evidence that the publication was read by a third party misplaced and misconceived. He argued still that claimants were required in defamatory cases to call the right witnesses, a third party who read the alleged defamatory publication and in whose eyes the estimation of the respondents had been lowered as a result of the reading of the publication. Also responding on the issue of territorial jurisdiction, learned counsel opined that there must be concrete evidence from a third party who read the publication in Abuja so as to confer jurisdiction on the lower Court, further arguing that a weighty issue like the issue of jurisdiction cannot be glossed over as done by the lower Court. Lastly counsel argued that to neutralize the defense of qualified privilege it is mandatory that malice be proven by the claimant, failing which the holding of the lower Court cannot be maintained.
Let me first of all consider the issue raised by the appellants, seeking to question the jurisdiction of the lower Court in entertaining. The basis for so doing, is because jurisdiction is not only paramount and fundamental, but the basis upon which any Court or Tribunal derives its authority to try a matter before it. It has been settled by numerous cases without limit, that jurisdiction is the life wire of a case, and for that reason deserves to be determined first in time, the rationale being that where a Court lacks the jurisdiction to determine a case, the proceedings remain nullity ab initio, regardless of how well conducted and decided the case may be. See Oloba vs. Akereja (1988) 3 NWLR (pt. 84) 508, Odofin vs. Agu (1992) 3 NWLR (pt. 229) 350.
Now, ground 4 of the grounds of appeal is to the effect that the Court was obviously in error when it assumed jurisdiction over the matter when there was evidence that the publication took place in Lagos, while ground 13 sought to complain that the Court having proceeded to hear and to determine the matter when it did not have territorial jurisdiction acted in grave error. A sober perusal of the record, bears out that the matter generating the instant appeal arose from the decision of the High Court of the Federal Capital Territory Abuja, per Justice, Salisu Garba. On whether the High Court of the FCT, i.e. the lower Court had territorial jurisdiction to have entertained the matter before it, I make reference to the recent decision of the Apex Court in Samuel Anyakorah vs. Peoples Democratic Party & Ors (2022) LPELR – 56876 (SC) per Jauro JSC. My lord of the Apex Court held therein that:
“The extent of the territorial jurisdiction of the High Court of the FCT Section 257 of the Constitution has been the subject of judicial pronouncements in numerous cases of this Court. Section 299 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that the provisions of the Constitution shall apply to the Federal Capital Territory as if it were one of the states of the Federation. Similarly, the jurisdiction of the High Court of the FCT conferred by Section 257 of the Constitution much like the High Courts established for other states of the Federation does not extend beyond the territory of the of the Court. In this case the Federal Capital Territory. The trial Court therefore lacked the jurisdiction to entertain the appellant’s suit as the dispute therein arose in Anambra State. See Mailantarki vs. Tongo & Anor (2017) LPELR – 42467 (SC), Dalhatu vs. Turaki & Ors (2003) LPELR –917 (SC).”
It follows from the case just cited that for the jurisdiction of the High Court of the FCT to entertain any matter before it, it must arise from its territorial area which is the FCT. The contention of the appellant by their ground 13 of the grounds of appeal, seeks to challenge the determination of the lower Court, contending that the cause of action arose outside its jurisdiction, and therefore denied it the jurisdiction to entertain the suit. It is my intention considering the instant argument, looking at the submissions of the learned counsel for the appellant on the two other issues which are in focus, which are the 2nd and third issue herein, to wit whether the lower Court was right in holding that the respondent was defamed. It is elementary the fact that defamation is the act of damaging the good reputation of someone generally consisting of libel and slander. The plaintiff had complained that the appellants by way of a large and prominent full-page type in a conspicuous place on page 39 of Vol. 25 No 63319 in the Vanguard Newspaper of Monday, 26th June, 2017 published by the appellant, Exhibit B, a statement which the respondents claimed was defamatory of them. In order words, the alleged defamation complained of, is in the nature of a libel, a published false statement damaging to a person’s reputation. A written defamation. The Apex Court in the case of CSSD Farms Ltd vs. Schlumberger (2019) ALL FWLR (pt. 972) 180 AT 212, enumerated the essential elements that must be proved in establishing the tort of libel to include:
i. Published a statement in a permanent form
ii. The statement referred to him
iii. The statement was defamatory of his person in the sense that:
i. It exposed him to hatred, ridicule or contempt.
ii. It lowered him in the estimation of right-thinking members of the community/society
iii. It injured his reputation in his office, trade or profession
iv. It injured his financial credit.
All the ingredients of the offence must be established, and where any of the elements remains unproven, the action fails.
Dr. Frank Chude, the learned counsel for the appellant argued, and correctly too in my view that publication is an essential element in proving the tort of libel, and that which gives the Court the jurisdiction determining the suit. Further still, it is where the publication is published and read by a third party that determines the territorial jurisdiction of the Court.
See also Sketch Publishing Co. Ltd vs. Ajagbemokeferi (1989) 1 NWLR (pt. 100) 678, Iloabachie vs. Ilobachie (2005) ALL FWLR (pt. 272) 223, Guardian Newspapers Ltd vs. Ajeh (2011) 10 NWLR (pt. 1256) 574 AT 588, amongst many other cases. This is so because in the consideration of whether the words complained of are defamatory, the language employed and the nature of the claim allows the Court to infer whether reasonable men would come to the conclusion that the words convey imputations suggested by the plaintiff, and the effect on the person to whom it was published. See CSSD Farms Ltd vs. Schlumberger (supra) AT 205, Sketch Publishing Company Ltd vs. Ajagbemokeferi (1989) 1NWLR (pt. 100) 678, Okolo vs. Midwest Newspaper Corporation (1977) 1SC 33, UBA Plc vs. Davies (2011) 11NWLR (1259) 591 @ 624, per Hussain Muktar JCA. It flows therefrom as posited that for a plaintiff to succeed in a case of libel, there must be proof by evidence of the reaction of a third party after reading the published material or publication, since a person’s reputation is gauged on the estimation of others on him as against what he thinks his reputation is. See Nsirim vs. Nsirim (1990) SCNJ 174 AT 184, Iwueke vs. Imo Broadcasting Corporation (2005) 17NWLR (pt. 955) 447 AT 482. This Court had held in the case of Popoola vs. Edobor (2017) LPELR-42539 (CA) per Fasanmi JCA that:
“In defamation matters, the mere making of the defamatory statement to the plaintiff does not constitute a cause of action as the defamatory statement must be published to a third party. The reason for this is that defamation does not consist in what the plaintiff thinks of himself, but of the opinion that others hold of him. Thus, one basic ingredient of defamation whether libel or slander is publication. In other words, the plaintiff is under a burden to prove that the defamatory statement was published to a third party and the law requires that the third party must not only be named but must be clearly identifiable and identified. Once a publication is not clearly pleaded and proved, the case is bound to collapse.”
See also Giwa vs. Ajayi & Ors (1992) LPELR – 14922 (CA). The Apex Court on the issue, gave its stamp of finality to the legal principle, having held that:
“For a plaintiff to succeed in libel, there must be proof by evidence of a third party of the effect of the alleged publication on him i. e. the reaction of a third party to the publication. Afterwards, libel consists in the publication by the respondent, by means of printing, writing, pictures or the like signs of a matter defamatory to the plaintiff.” See Iwueke vs. Imo Broadcasting Corporation (2005) 17NWLR (pt. 955) 447 AT 482, (2005) LPELR – 1567 (SC) per Ogbuagu JSC.
See also Daily Telegraph Publishing Ltd vs. Ekeuwei (2019)14NWLR (pt. 1693).
The burden of establishing the fact that he was defamed is that of the plaintiff, failing which his case collapses. In the case at hand, the respondent through the 2nd respondent gave evidence to the fact that the advertorial carried in the appellants newspaper was widely circulated everywhere in the country, but failed to lead evidence pertaining to whether a third party, (especially AMCON in this case) read the said advertorial, and his reaction to the contents with regards to the reputation of the respondents. Parties appear to be on common ground having stated that Exhibit 5, the advertorial was published by the appellants. The question thereafter is whether Exhibit 5, is defamatory of the respondents? The lower Court attempted the question from pages 526 – 530 of the record, referred to the evidence of the Pw1 on the issue in arriving at the conclusion that respondents were indeed defamed. Having studied the glaring facts placed before the lower Court, my humble view is that that reasoning by the lower Court and indeed the conclusion drawn therefrom, cannot be supported having run contrary to the settled principles of law. If I may ask, how did the lower Court come to that conclusion, since there was no evidence was proffered to that effect by the claimants, and would it be right for the Court to speculate in its findings, contrary to the legal position that Courts do not act on speculations, let alone conjectures that are ambiguously speculative. See Martins vs. The State (2019) LPELR – 48889 (SC), Dalfam Nig. Ltd vs. Okaku International Ltd (2002) FWLR (pt. 96) 501 AT 541, Oyinloye vs. Esinkin (1999) 10 NWLR (pt. 624) 540. It has been conceded even by the respondents, that no third party was called to give evidence. The respondent relied on the Court of appeal case of Asheik vs. M.T.Nig. Ltd (2010) 15 NWLR (pt. 1215) 114 AT 164 per Odili JCA as he then was, that where words in their ordinary sense are defamatory, the plaintiff need no more than that they were published, and therefore need not call witnesses to prove what they understood by the words, but that the relevant question would be whether reasonable people understood the words in their defamatory sense. This Court relying on decided cases, held that:
“In Nigeria as in England no civil action will lie for damages for defamation unless the defamatory matter has been published. In law, publication of a defamatory matter occurs or is said to have taken place when it is communicated to anyone other than the person defamed. It is thus the making known of the defamatory matter after it has been written or made to some other person other than the person of whom it was written or uttered that constitutes publication in the tort of defamation.”
See Mr. Olusola A.B. George-Olumoroti vs. Mr. Ide O. Owodiong-Idemeko (2017) LPELR – 51546 (CA). This is against the established legal position that the plaintiff is duty bound proving that the words complained of conveyed a defamatory meaning to whom they were published. See The Sketch Publishing Company Ltd & Anor vs. Alh. Azeez Ajagbemokeferi (1989) LPELR – 3207 (SC). The reliance on the cases of SOA Popoola vs. Mr. Ebenezer Edobor & Ors (2017) LPELR – 42539, Unity Bank Plc vs. Mr. Akinlabi S. Oluwafemi (2006) LPELR – 9847 (CA), Nigerian Westminister Dredging vs. Tunde Smooth & Anor (2011) LPELR – 4619 (CA), all to the effect that the defamatory statement must be published to a third party translated that the case relied upon by the respondent is no more good law. To buttress this fact further is the finding of the lower Court, having stated that:
“…However going by the content of Exhibit 93, the refusal to approve the expenses particularized at paragraph 23 of the amended statement of claim and paragraph 24 of PW1’s statement on oath was not as a result of the defamatory publication against the claimants… It is clear as crystal that the refusal by AMCON to approve payments for the purported expenses incurred by the claimants had no nexus with the defamatory publication. I so hold”,
clearly depicts the fact that the lower Court only speculated in arriving at its conclusion that the said publication was defamatory of the respondent. This finding evidently has no evidential support and cannot be allowed to stand. I agree with the learned counsel for the appellant relying on the recent case of Daily Telegraph Publishing Ltd vs. Ekeuwei (2019) 14 NWLR (pt. 1693), that the evidence of a third party to whom the defamatory statement is published concerning the plaintiff is a necessary component in proving the tort of defamation. See also Iwueke vs. Imo Broadcasting Corporation (2005) 17 NWLR (pt. 955) 447 AT 482. The presence of such a third party who is expected to testify on the publication made and the effect of such publication on him or his estimation of the state or status of the person alleged to have been defamed is material.
In the case at hand, the plaintiff before the lower Court failed to call any witness apart from the 2nd plaintiff, a claimant in his own right to testify, the consequence of which is that the conclusion by the lower Court that the respondents were defamed cannot be maintained and issues one, two and three accordingly resolved in favor of the appellant.
Issues four, five and six also read together reads as follows:-
i. Whether the defense of qualified privilege availed the appellant? (Ground 3 and 11)
ii. Whether the trial Court properly evaluated the evidence and issues before it viz-a-viz the exhibits (Ground 7 and 14).
iii. Whether the learned trial Court was right to have awarded the Sum of N10,000,000.00 (Ten Million Naira) only as general damages (Grounds 5 and 15).
Contending on whether the defense of qualified privilege availed the appellant, appellant’s counsel made reference to pages 394 – 395 of the records, where appellant gave particulars of the defense, insisting that the publication was a privileged one. He maintained that the appellant was under a duty to publish such information which was the true representation of the content of the advert and gladly received by the public. He then alluded to the provision of Order 15 Rules 17(2) of the High Court of the Federal Capital Territory Civil Procedure Rules 2018, and the cases of Inland Bank vs. F & S (2010) 15NWLR (pt. 1216) 395 (CA), Gomes vs. Punch (1999) 5NWLR (pt. 602) 303 AT 311 and Section 22 of the CFRN 1999 as amended to contend that the publication having been made without malice, and same in the discharge of a public duty and in the interest of the maker and the receiver, this Court should allow the appeal on the score.
On whether the trial Court properly evaluated the evidence and issues before it, vis a vis the exhibits, learned counsel made reference to the final written address of the appellant before the lower Court wherein it raised a preliminary point pertaining to the jurisdiction of the Court to entertain the suit. He pointed out that by the decision of Mbadinuju vs. Independent Communications Network (supra), the tort of libel is committed where the publication is read by a third party and not where it was written or authored. He argued that since both parties that testified resided in Lagos, the claimant was forum shopping bringing the case to Abuja. He argued also that the Court’s are enjoined to consider all issues raised, but the trial Court glossed over the issue thus failing to resolve the fundamental issue of territorial jurisdiction raised by the appellant as well as the effect of the failure by the claimant to call the evidence of a third party.
He leveraged on the case of Arulogun vs. COP Lagos State & Ors (2016) LPELR-40190 (CA) per Augie JCA as he then was, to posit that the failure by the lower Court to consider the all-important points which were germane to the determination of the suit goes to tell that the lower Court failed to properly evaluate the evidence in the case.
Lastly, the learned counsel for the Appellant complained about the award of Ten Million Naira only as general damages awarded against the appellant contending that the claimants having failed to prove their case are not entitled to the award granted. He alluded to a portion of the judgment of the lower Court on the issue of the costs awarded, contending that since the claimants did not suffer any loss or damages traceable to the alleged offensive publication, the award of ten Million Naira against the appellant should not be allowed to stand.
In fine, learned counsel urged the Court to allow the appeal.
Mr. Odihi, the learned counsel for the respondent in his response, particularly on whether the defense of qualified privilege could have availed the appellant posited that the defense of qualified privilege avails a maker or author of a publication where such a maker has an interest or duty whether legal, social or moral to make such a publication to a group of persons having a corresponding interest or duty to receive such publication. Citing the cases of Ojeme vs. Momodu (1994) 1 NWLR (pt. 323)701, Gomes vs. Punch (Nig) Ltd (1999) 5 NWLR (pt. 602) 303 AT 312 and the English case of Adam vs. Ward (1917) AC 309 AT 334, learned counsel argued that where there is evidence of malice in the publication, the defense of qualified privilege will not avail the publisher. On the issue of the territorial Jurisdiction of the Court, and whether the lower Court considered all the issues submitted by the appellant before reaching its decision, the learned counsel for the respondents relying on the case of Mbadinuju vs. Independent Communications Network (2007) LPELR – 4240 (CA) is of the view that it is the place where the libelous publication is published and read that determines the territorial jurisdiction of the Court. He posited that the lower Court considered the issue at pages 517 – 518 of the record, adequately evaluated the evidence adduced before it and referred to the Court to page 524 of the record of proceedings. He finally urged the Court to resolve the issues posited upon against the appellant.
The case of Gomes vs. Punch (1999) 5NWLR (pt. 602) 303 AT 311 per Aderemi JCA, agrees with the general legal view that the defense of qualified privilege avails mostly the media formations, being the mouth piece of the public as well as the public informants. Therefore, where a statement is honestly published without an unjust motive the defense of qualified privilege can avail the media outfit or person.
In the case at hand, it is evident that appellant raised the defense of qualified privilege, and gave particulars of same in the following manner:
i. The alleged publication is an advertorial concerning a government agency.
ii. The Asset Management Corporation of Nigeria (AMCON) is a Federal Government Agency saddled with among others other things the responsibility of taking over the management of ailing or dead corporation and company in order to resuscitate or revive it.
iii. The affairs and activities of Asset Management Corporation of Nigeria are of public interest.
iv. The alleged advertorial was also addressed to the office of the Federal Republic of Nigeria which are public offices and institutions with the caption, “Amcon vs. Union Workers, Wilbros Nigeria: Mr. President, Senate and House of Representatives, please save us and come to our rescue”.
v. The public is interested in knowing how the Asset Management Corporation of Nigeria conducts itself and carries out its activities.
vi. The defendant is a media outfit with a duty of disseminating information of public interest.
vii. The management of Choba and Isiodu yards in Rivers State is of public interest and the public is interested in knowing what is being done and how it is managed.
viii. The alleged advertorial was published under a sense of duty and without malice towards the claimants or anybody.
ix. The defendant investigated the story diligently and thoroughly before publishing same.
To destroy the defense, the claimant is under a duty to prove that the publication was maliciously so published. SeeInland Bank vs. F & S (2010) 15NWLR (pt. 1216) 395. The question for resolution is whether the claimant before the Court was able to show in the circumstance that the publication was done or propelled by malice on the part of the defendants. The fact that a newspaper has a duty to disseminate information to the general public is indisputable. See African Newspapers (Nig) Plc vs. Useni (2015) 3NWLR (pt. 464) 486. The right to comment freely on matters of public interest has been held to be one of the fundamental rights of free speech. See Din vs. African Newspapers Ltd (1990) 3 NWLR (pt. 139) 392 AT 408. Even though the claimants failed to rebut or file a reply to the particulars of malice, contended just like the lower Court that the publication was reckless and false with the intent to harm. In the same vein the lower Court was of the view that the refusal of AMCON to approve certain payments was not induced by the publication being complained upon. The term Malice was given meaning in the case of Eromosele vs. Wermer & Ors (2014) LPELR – 22183 (CA)., as meaning an act intentionally done without just cause, the desire to harm, or hatred for. Making use of the occasion for some indirect purpose or a wrong motive. See Emeagwara vs. Star Printing & Publishing Co. Ltd & Ors (2000) LPELR – 1122 (SC). The fact that the publication published was false or reckless as the lower Court termed it, once malice is not imputed to the application, the defense of privileged information will avail the defendant. To defeat that defense there must be evidence that even though the defendant knew of the falsity of the publication, yet went ahead to publish the same for reasons which are meant to harm the claimant. I have carefully weighed all the circumstance in the case at hand, and do with humility disagree with the lower Court that the publication was not privileged in the circumstance. The appellant in this case has a constitutional duty of disseminating information, which duty must never be hampered or stifled, as to do so would spell the end of the freedom of the press. I remember with nostalgia, the days of decree no. 4. That era must never return and I resolve this issue in favor of the appellant. The next complaint by the appellant relates to the evaluation of the evidence by the lower Court, most particularly with regards to the submission by the appellants that the claimants failed to call a third party in proof of their case. I have been referred to page 524 of the record of proceedings, where the lower Court alluded to the question, and thereby urged to respect the evaluation made by the lower Court on the issue. I totally agree with the legal position that the evaluation of evidence is principally the duty of a Court of trial, and the Court sitting on appeal rarely interferes with such evaluation and finding unless found to be perverse. It is the law that evaluation of evidence entails the assessment of the evidence adduced, and the ascription of evidential value thereto. It is for the Court to peruse the evidence led, appraise the said evidence and to see whether there is evidence on which the trial Court could have based its findings thereon. See Sule Anyegwu & Anor vs. Aidoko Onuche (2009) 3NWLR (pt. 1129) 659, Ecobank Plc vs. Mohammed (2014) LPELR – 23990 (CA), Buhari vs. INEC (2008) LPELR – 814 (SC). It is difficult in the circumstance to agree with the lower Court to accept as due evaluation the comments made in page 524 of the record as being an evaluation of the issue raised by the parties, and accordingly fault the lower Court in that regard, thus resolving the issue in favor of the appellant. Lastly on the issue of the award of the sum of N10,000,000.00 to the respondents against the appellant, I am of the view that this issue must similarly be resolved in favor of the appellant, being that the claimants case was unestablished and that which ought to have been dismissed for reasons stated before now.
Having resolved all the issues in favor of the appellant, this appeal being meritorious must be and is hereby allowed by me, and the judgment of the lower Court set aside.
The Cross-Appeal.
The cross-appellant filed a notice of appeal against part of the decision of the lower Court on the 3rd of March, 2022 with the leave of Court, predicated on three grounds. The cross-appellant filed a brief on the 31/3/2022, settled by Robert Odihi and argued by him. The following issues were raised for the resolution of the cross-appeal:
i. Whether the cross-appellants proved the claim for special damages and were entitled to the relief sought.
ii. Whether the cross-appellants were entitled to costs of the action including the solicitors’ fees.
iii. Whether the cross-appellants were entitled to a written apology and a retraction of the defamatory advertorial of Monday, 26th June, 2017 from the cross-respondents and the refusal or failure of the learned trial Court to grant same, has occasioned a miscarriage of justice to the cross-appellants.
The cross-respondent in opposing the cross-appeal filed a brief on the 25th of May, 2022 settled by Dr. Frank Ike Chude, and at page 3 of the brief raised the following issues for resolution:
i. Whether the cross-appellants proved the claim for special damages and were entitled to the said relief.
ii. Whether the cross-appellant’s claim for solicitors’ fees which does not form part of their cause of action can be granted.
iii. Whether the cross-appellants are entitled to a written apology and retraction of the publication when they have not proved by credible evidence that same is defamatory of them.
On the 30th of May, 2022, appellant yet again filed a reply brief also settled by the said Mr. Robert Odihi, the learned counsel representing the cross-appellant. It should be noted also that a supplementary record was compiled and transmitted to this Court on the 22nd of March, 2022. The appeal as well as the cross-appeal was heard on the 1st day of June, 2022.
The two set of issues crafted by the parties in the cross-appeal are not in any way dissimilar. I intend therefore to adopt those issues formulated by the cross-appellant in the determination of the cross-appeal.
Whether the cross-appellants proved the claim for special damages and were entitled to the relief sought.
The complaint by the cross-appellant marshalled from page4 – 15 of the brief is that the special damages pleaded and proven before the lower Court was not awarded. He made mention of paragraphs 17 – 36 of the amended statement of claim, as well as paragraphs 18 – 32 of the statement on oath by his witness, contending that in spite of the specific averments and evidence on same, the lower Court failed or refused to award the special damages proved. He faults the reliance of the lower Court on Exhibit 93 to refuse granting the head of claim and relied on the case of Ibrahim & Ors vs. Obaje (2017) LPELR – 43749 (SC), arguing that the finding of facts by the lower Court was perverse and occasioned a miscarriage of justice as the sums claimed were not speculative as held. He urged the Court to revisit the issue and to hold that the cross-appellant had specially pleaded special damages, and strictly proved same at the trial and therefore entitled to the grant of same.
Responding, the learned counsel for the cross-respondent from page 3 – 15 of the brief, while conceding to the state of the law with regards to special damages, contended that the trial Court upon a thorough evaluation of the case made by the cross-appellants found that there was no nexus with the advertorial and that the claim was speculative. He alluded to the finding of the lower Court at pages 537 and 538 of the record to the effect that by Exhibit 93, the basis for the reason for the refusal to approve the expenses as not connected or related to the advertorial, but incurred without authorization. He argued that there was nothing in the letters of termination suggesting that the termination of the cross-appellant’s contracts with the Bear Marine Service and Enikkom Construction Limited was consequent on the advertorial as erroneously concluded or alleged by the cross-appellant. He argued that for special damages to be recoverable, they must flow directly and immediately from the breach or act complained of, and must be reasonably foreseeable. He argued further that in the present case, the damages are or foreseeable but speculative for which the Court cannot give consideration. The case of Olateru-Olagbaegi 111 & Ors vs. Majekodunmi (2013) LPELR – 22167 (CA) was relied upon. He maintained that special damages must not only be specially pleaded, but must be strictly proved by the claimant, relying on Luke Nwanewu Onyiorah vs. Benedict C. Onyiorah & Ors (2019) LPELR – 49096 (SC), Gari vs. Seirafina Nigeria Ltd & Anor (2007) LPELR – 8397 (CA) and Orji vs. Ugochukwu & Ors (2010) LPELR – 9136 (CA). he urged the Court to hold that the claim by the cross appellants has no nexus with the issue of the advertorial and thereby discountenance the same.
It is obvious that this head of claim is premised on the assumption that appellants issue two in the main appeal would be determined in favor of the Respondent/cross-appellant to the effect that the appellant/cross-respondent defamed the cross-appellant. Having decided that the respondents/cross-appellant failed to establish that they were defamed, this issue must fail ab initio and the consideration of same becoming academic. In the event, it is hereby resolved against the cross-appellant. On, whether the cross-appellants were entitled to costs of the action including the solicitors’ fees, the law is certain that for a claim for solicitor’s fees not borne or not being part of the claimant’s cause of action, such a claim is not grantable. The cases of Michael vs. Access Bank (2017) LPELR – 41981 (CA) and Chris Baywood Ibe & Anor vs. Bonum Nigeria Ltd (2019) LPELR cited by the learned counsel for the cross-respondent is apt on the issue amongst others. The cross-appellant is however correct in asserting that a successful party is entitled to be indemnified for the cost of litigation as stated in Naude & Ors vs. Simon (2013) LPELR-20491 (CA). The claim for solicitor’s fees must however be pleaded and proved in the nature of special damages. This however cannot be maintained in the case at hand in view of the conclusion reached to the effect that the cross-appellant failed to prove his case before the lower Court. In the event, this head of claim must also fail, and the appeal on same determined against the cross- appellant. Lastly, Whether the cross-appellants were entitled to a written apology and a retraction of the defamatory advertorial of Monday, 26th June, 2017 from the cross-respondents and the refusal or failure of the learned trial Court to grant same, has occasioned a miscarriage of justice to the cross-appellants.
This issue likewise must be determined against the cross-appellant in view of the success of the appeal.
Hence having determined all the issues against the cross-appellant, the irretrievable conclusion is that the cross-appeal fails and it is hereby dismissed by me.
On the whole, the appeal succeeds and it is hereby allowed, while the cross-appeal fails for lack of merit and it is hereby dismissed. I make no order with regards to costs.
STEPHEN JONAH ADAH, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, Hamma Akawu Barka, JCA.
My learned brother has in an elaborate manner dealt with all the issues generated in the appeal. I am in full agreement with the reasoning and the conclusion which I adopt as mine that the appeal succeeds and should be allowed. I equally agree with the conclusion that the cross-appeal is lacking in merit and should be dismissed. It is for those same reasons that I allow the appeal and dismiss the cross-appeal.
I abide by the consequential order as made therein.
DANLAMI ZAMA SENCHI, J.C.A.: I am privilege to read before now the lead judgment of my learned brother, HAMMA AKAWU BARKA, JCA just delivered and I agree with the finding and conclusion reached therein that the instant appeal has merit and it is allowed. The Cross-Appeal fails and it is dismissed by me as well.
I make no order as to costs.
Appearances:
Dr F.I. Chude, with him, E.F. Olowofela For Appellant(s)
Robert Odihi, with him, James Udor Abe For Respondent(s)
