AFRICAN NEWSPAPERS OF NIGERIA PLC & ANOR v. LT. GEN. JEREMIAH USENI (RTD) (2014)

AFRICAN NEWSPAPERS OF NIGERIA PLC & ANOR v. LT. GEN. JEREMIAH USENI (RTD)

(2014)LCN/7196(CA)

In The Court of Appeal of Nigeria

On Friday, the 16th day of May, 2014

CA/L/320/2010

RATIO

CONDITION TO RELY ON THE DEFENCE OF QUALIFIED PRIVILEGE

It is apparent then that for a defendant to be able to rely on the defence of qualified privilege in these circumstances, the defamatory statement must be made honestly and without any indirect or improper motive or malice as it is generally described. Doubtless, any matter relating to an attempted coup is a matter of public interest. The Appellants being a publishing outfit have a duty to disseminate information to the general public. But that duty carries with it the responsibility of ensuring that the information was subjected to proper investigation and is fairly accurate. In Gomes v. Punch (Nig) Ltd & anor (1995) 5 NWLR (pt. 602) 303 Aderemi JCA (as he then was) observed:

“…I should here say that it is much to be desired that newspapers, televisions or news media generally should be free to bring to the notice of the public any matter of public interest or concern. But in order to be deserving of that freedom, the press must show itself worthy of it. A free press cannot be deserving of that appellation unless it is a responsible press. The power of the press is enormous. It must not abuse that power. If a newspaper should act irresponsibly then it forfeits any claim to the defence of qualified privilege. The press in a society that upholds the rule of law as a way of life has a solemn duty to feed the society with true facts and honest comments….” Per CHINWE EUGENIA IYIZOBA, J.C.A.

WHEN A CAUSE OF ACTION IN A LIBEL CASE IS COMPLETED

Once the plaintiff in a libel case proves that a libel has been published of him without legal justification, his cause of action is complete.

Damage is presumed and he need not prove that he has suffered any actual damage or injury to his reputation. Cross River State Newspapers Corporation v. Oni (1995) 1 NWLR (Pt. 371) 270.

The amount to be award as damages in libel cases is a matter at the discretion of the trial Judge and the factors which the courts usually consider are:

Theconduct of the plaintiff;
Theposition and standing of the plaintiff;
Thenature of the libel;
Themode and extent of the publication;
Theabsence or refusal of any retraction or apology; and
Thewhole conduct of the defendant from the time when the libel was published down to the very moment of the judgment.

See EJABULOR V. OSHA (1990) 5 NWLR (PT. 148) 1 @ 16 A-C; PROF TAM DAVID WEST V. ODUWOLE (2003) FWLR (PART 163) 146 AT 161. Per CHINWE EUGENIA IYIZOBA, J.C.A.

WHETHER AN APPELATE COURT IS TO BE CONCERNED WITH THE REASON FOR THE DECISION OF THE COURT BELOW

It is now trite that an appeal court is concerned with whether the decision reached by the court below is right, not whether the reasons necessarily were; unless the reasons materially affect the decision of which was not the case here. See Ukejianya v. Uchendu 13 W.A.C.A. 45 at 46, Taiwo and Ors. v. Sowemimo (1982) 5 S.C. 60 at 74 – 75, Ibuluya v. Dikibo (2011) 3 W.R.N. 1 at 23. Per JOSEPH SHAGBAOR IKYEGH, J.C.A.

CONSIDERATIONS IN DETERMINING THE AWARD OF DAMAGES IN A LIBEL CASE

(a) The position and standing of the plaintiff in the society; (b) the nature of the publication (c) the effect of the publication on the plaintiff (d) the absence or refusal of retraction and apology by the defendant (e) the recklessness with which the libel was published and (f) the current value of the country’s official currency.

See OFFOBOCHE V. OGOJA LOCAL GOVERNMENT (2001) 16 NWLR (PT 739) 458; DAVID WEST V. ODUWOLE (2003) 12 NWLR (PT 835) 682 and MERCHANDANT V. PINHEIRO (2001) 3 NWLR (PT 701) 577. Per SAMUEL CHUKWUDUMEBI OSEJI, J.C.A

WHETHER AN APPELATE COURT CAN INTERFERE WITH THE AWARD OF DAMAGES BY THE TRIAL COURT

It is however apposite to note that the law on powers of the Appellate court to interfere with the award by the trial court is settled. To justify reversal or interference with the amount of damages awarded by a trial court, it will be generally necessary for the appellate court to be convinced that:-

(a) the trial court acted upon wrong principle of law.

(b) The trial court has acted under misapprehension of facts.

(d) where injustice will result if the appellate court does not interfere

(e) The amount awarded is either ridiculously too high or very small as to make it, in the judgment of the appellate court, an entirely erroneous estimate of the damages to which the plaintiff is entitled.

See generally USONG V. HANSEATIC INTERNATIONAL LTD (2009) 11 NWLR (PT 1153) 522; IDAHOSA v. ORONSAYE (1959) SC NLR 407; BALA v. BANKOLE (1986) 3 NWLR (PT 127) 141; ZIK’s PRESS LTD v. IKOKU (1951) 13 WACA 188; UBN LTD v. ODUSOTE (1995) 9 NWLR (pt 421) 558; UMOETUK V. UNION BANK PLC (2001) FWLR (PT 81) 1849 and EBERE V. ABIOYE (2005) ALL FWLR (PT 264) 945. Per SAMUEL CHUKWUDUMEBI OSEJI, J.C.A

JUSTICES:

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

1. AFRICAN NEWSPAPERS OF NIGERIA PLC
2. SEGUN OLATUNJI – Appellant(s)

AND

LT. GEN. JEREMIAH USENI (RTD) – Respondent(s)

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): In the High Court of Lagos State, at the Lagos Judicial Division in suit no. LD/805/2004, the claimant now the Respondent claimed against the Defendants now the appellants jointly and severally in paragraph 17 of his further amended statement of claim as follows:
“17. WHEREOF the Claimant Claims against the 1st and 2nd Defendants jointly and severally as follows:-
i. A DECLARATION that the publication captioned “COUP – Malu, Useni and Magashi arrested” at pages 1 and 4 of the Nigerian Tribune No. 13, 346 of Monday the 15th day of April, 2004 is libellous and has discredited and damaged the reputation of the Claimant in the eyes of the general public.
ii. N1 billion (one Billion Naira) being damages against the Defendants jointly and severally for the libellous and mendacious publication of and concerning the Claimant.
iii. Cost of Litigation”

THE FACTS:
In the Tribune Newspaper of 5th April, 2004 the Appellants published an article captioned “Coup – Malu, Useni, Magashi Arrested”. The Respondent through his counsel wrote a letter dated 5th April, 2004 to the Appellants complaining that the contents of the publication was false and sought both a retraction and an unreserved apology on account thereof.
The Appellants did not reply the letter. The Respondent then instituted a suit at the High Court of Lagos State. The Respondent’s case was that the publication of 5th April, 2004 was false and that same painted him in bad light to the general public on account of the criminal allegation imputed to him in the libellous publication. The Respondent contended in his pleading and through evidence led that the Appellants knew or ought to have known at the time of the publication that the facts contained therein are false or at the least unsustainable, same having been expressly denied by the official spokes person of the president of the Federal Republic of Nigeria.

In their defence, the Appellants relied on the defence of fair comments and qualified privilege. They claimed that being a publishing outfit, they had a duty to disseminate information to the general public.

The Respondent in proof of his case called five witnesses CW1 – CW5. Three exhibits were tendered. The Respondent through his witnesses categorically denied being involved in a coup and stated that the said publication was false. They also testified that the Respondent found it extremely difficult to purchase a copy of the newspaper as same had been sold out, transmitting to enormous financial gain to the Appellants.

The Appellants called one witness DW1 who acknowledged being the author of the libellous publication and who identified Exhibits DF1, DF2, DF3 and DF4 which are publications of the Vanguard Newspaper of the 1st, 2nd, 3rd and 4th of April, 2004 wherein the presidential spokesperson denied the existence of a coup and these publications predate the Tribune publication of the 5th of April, 2004.

The learned trial Judge Taiwo, J. in his judgment delivered on the 2nd day of December, 2009 found the Appellants liable jointly and severally for the libellous publication concerning the Respondent and accordingly awarded him damages in the sum of N10 Million.

Dissatisfied with the decision of the trial Judge, the Appellants appealed to this Court by a Notice of Appeal containing three grounds of appeal out of which they distilled two issues thus:
a) Whether in the circumstances should of this case, the learned trial Judge not have held that the defence of qualified privilege avails the defendants
b) Whether the award of N10, 000,000.00 (Ten Million Naira) as damages to the claimant is not excessive in view of the evidence adduced.

The Respondent in his brief adopted the issues formulated by the Appellants.
ISSUE 1:
Whether in the circumstances of this case, the learned trial Judge should not have held that the defence of qualified privilege avails the defendants
APPELLANT’S ARGUMENTS:
Learned counsel for the Appellants on this issue submitted that they are entitled to rely on the defence of qualified privilege because as averred in their pleading and evidence in court, the publication was in respect of a matter of public interest devoid of any malice express or implied. Counsel referred to various parts of the judgment of the learned trial Judge and submitted that the learned judge having agreed with them that the defence of qualified privilege would avail the defendant, erred in turning round to hold that the privilege was abused and not available.
Counsel submitted that since the defendant successfully proved qualified privilege as held by the learned trial Judge and the claimant did not file a Reply alleging malice as required by Order 15 Rule 17 (2) of the High Court of Lagos State Civil Procedure Rules, the finding of the Court that the Defendants had abused the privileged occasion is faulty. Counsel argued that the existence of qualified privilege had destroyed the inference of malice and that malice so destroyed cannot be resurrected in law. He relied on the case of OBASUYI V. EZEIGHU (1991) 3 NWLR (PT 181) 585 at 596.

Learned counsel submitted that the view held by the learned trial Judge that the Defendants’ interest which smacks of malice was to sensationalize the issue with a view to selling more papers is speculative. Counsel submitted that the view is not supported by any evidence before the Court. Counsel further submitted that the only pedestal on which the claimant would have proved actual or express malice was to file a reply pleading facts that show actual or express malice as provided in Order 15 rule 17(2) of the High Court of Lagos Civil procedure Rules.
Counsel submitted that this important substantive law was not complied with by the Respondent. He argued that it must be borne in mind that this defence of qualified privilege was put in place for the protection of the society and the press which is the tool through which the society gauges the performance of the rulers. He contended that the proposition of the law is further confirmed by the Supreme Court in MAMMAN v. SALAUDEEN (2005) 18 NWLR (PT. 958) 478.
Counsel argued that in order to prove that the Defendants had no ulterior motive behind this publication, their sole witness averred in his amended written statement on oath dated 24th June 2009 thus:
“10. That I know as a fact that the defendant took all necessary Precautionary measures before publishing the story by calling all those alleged to have been arrested in connection with the Coup plot.
11. That I know as a fact that when one of my colleagues Mr. Olawale Rasheed, contacted one Mr. Ibrahim Modibbo, a friend and aide to the claimant over the “Coup arrest” story, he was evasive in his response.
12 That the said Mr. Ibrahim Modibbo however invited us to meet the claimant at a time our source hinted that the claimant was just left off the hook by the security agents and when we decided to visit the residence of the claimant, the appointment was cancelled and the next thing we heard was that the claimant was on his way to Langtang.”

Counsel submitted that the witness was never cross examined on the above averment. He further submitted that the defendants took positive steps to verify the story and that the claimant was given an opportunity to deny or confirm the story. In addition, at paragraph 15 of the amended written statement on oath the witness stated thus:
“The defendant has a legal as well as social duty to inform the public of the happening in Government circles that are of public interest. I did not write the story on the instruction of any management staff to deliberately malign or injure the reputation of the Claimant.”

Counsel submitted that in the light of the above, the claimant has not been able to prove the existence of express or actual malice that could have deprived the defendant of the benefit of the defence of qualified privilege. He finally urged us to hold that the defence of qualified privilege availed the defendant.

RESPONDENT’S ARGUMENTS:
Learned counsel for the Respondent in reply submitted that he does not dispute that the 1st Appellant has a duty to disseminate crucial information of public interest to the general public but contends that the privilege was abused by the Appellants by the publication of a false story of such sensitivity despite the fact that same had been categorically and clearly denied by the Federal Government through the Presidential spokesperson and the Chief of Army Staff prior to the Appellants’ publication and accordingly, the defence of qualified privilege had been destroyed by publishing known falsehood.

Counsel submitted that the Appellants’ contention is that as a media outfit, the 1st Appellant has a duty to disseminate crucial information to the general public. Counsel however contended, relying on of Atoyebi v. Odudu (1990) 6 NWLR (Pt 157) 384 @ 399 that for such plea of qualified privilege to avail the Appellants successfully, the fact relied upon by the Appellants must be true and that even a mere belief will not sustain the defence. Counsel also cited Esenowo v. Ukpong (1999) 6 NWLR (Pt. 608) 617 @ 620 where it was held that once a defamatory statement is proved to be false and malicious, the defence of qualified privilege would not be open to the defendant.

Counsel submitted that in this case, there was evidence before the Trial Court in Exhibits DF1, DF2, DF3 and DF4 which are publications of the Vanguard Newspaper of the 1st, 2nd, 3rd and 4th of April, 2004 that prior to the Appellants’ publication of 5th April, 2004 that the Presidential spokesperson and the Chief of Army Staff had denied the contents of the publication and accordingly, as at the time of publishing the defamatory story, subject matter of this appeal, the Appellants knew or are deemed to have known that the contents thereof were false. Counsel submitted that in the Respondent’s demand letter for a retraction and apology dated April, 2004, the Respondent also denied being involved in plotting a coup but despite the categorical denial, the Appellants refused to retract the story when it was obvious without any iota of doubt that the story was not only misleading but also false. On the issue of arrest, the Respondent presented unchallenged evidence reported in the This Day Newspaper of 7th April, 2004 stating that on the 6th of April, 2004, the Respondent who was alleged to be falsely arrested on account of the coup was being inaugurated at the State House as a member of the Presidential Task Force on the Jos crisis.

Counsel submitted that the evidence of DW1 revealed that no thorough or proper investigation was conducted before the sensitive publication. He submitted that at the trial the Appellants could neither authenticate nor justify the facts in the publication which the Respondent uncontrovertibly proved to be false. Counsel further submitted that the failure of the Appellants to react to the Respondent’s Counsel’s letter of 5th April, 2004 and the subsequent events which made it undoubtedly clear that the authenticity of the publication was in question negate the appellants’ claim to honesty of purpose.

On the issue of the failure of the Respondent to file a Reply, the Appellants having raised the issue of qualified privilege, counsel submitted that the law as laid down in the case of Atoyebi v. Odudu (Supra) and the case of Bakare v. Ibrahim (supra) is that the duty on a plaintiff to file a reply alleging express malice arises and becomes crucial when a defendant pleads and has actually made out a defence of qualified privilege. Consequently, where a defendant’s defence of qualified privilege is faulted on the basis of falsehood as in the present case, failure to file a reply to establish malice becomes a non issue.

Counsel submitted that the Appellants did not transcend the stage for establishing the truth of the facts in its publication of 5th April, 2004 to warrant the need of filing a Reply to establish malice. Where a publication is not based on truth, the defence of qualified privilege becomes totally negated. Counsel submitted that in Atoyebi v. Odudu (supra), the Supreme Court held that where defamatory words are published without lawful excuse, the law conclusively presumes that the defendant is motivated by what is often described as malice in law. Accordingly, in such a situation, the plaintiff is usually not required to give particulars of the facts on which he seeks to rely in support of the allegation that the words were published “maliciously”. Also in Ogoja L.G. v. Offiboche (1996) 7 NWLR (Part 458) 48 at 81-82, the Court of Appeal in treating the issue of whether proof of falsity of words complained of is sufficient to establish malice held that although mere falsehood is no disproof of bona fide, however, proof that the defendant knew that the statement was false or that he had no genuine belief in its truth when he made it would usually be conclusive evidence of malice.

Counsel finally submitted that the Learned Trial Judge was right in finding that the Appellants have a duty of disseminating information of public interest but that the defence of qualified privilege did not avail the Appellants as the publication of 5th April, 2004 which imputed criminal allegation of and concerning the Respondent was based on falsehood and this being the case, any form of defence of qualified privilege becomes negated.

RESOLUTION:
The narrow issue for determination here is whether the defence of qualified privilege can avail the appellants. What is meant by the term ‘qualified privilege?’ In First Bank Nigeria PLC v. Aboko (2005) LPELR-7494 (CA) Aderemi JCA (as he then was) stated:
“The term “Qualified Privilege” would seem to defy direct definition. It seems to me that for a proper understanding of what it connotes, an explanation, in words, is the proper approach. Generally a court action for a redress lies for the malicious publication of words or statements that are false in fact and injurious to the character and reputation of the person seeking the redress. The law considers the publication of such false and injurious words or statement as malicious unless it can be established that the person who makes the communication of such injurious and malicious words is a person who has an interest or a duty – be it legal, social or moral – to make it to the person to whom it was made and that the person to who it was so made has a corresponding duty or interest to receive same. In other words, in law, a communication bona fide, made upon any subject matter in which the party communicating has an interest is privileged and in legal parlance, it is said to have been made on a privileged occasion and therefore a defence of qualified privilege will avail a person who is sued as a defendant in such circumstances. By this defence, a defendant in a libel case is saying no more than that even though the words complained of may be defamatory of the person of whom it was published to the person or persons whom the law recognises as persons who have corresponding interest to receive it, the defendant cannot incur any legal liability if the publication was not actuated by malice. So when the words published are made honestly and without any indirect or improper motive, a person sued as a defendant can legitimately take cover under the defence of qualified privilege, he will be immune from liability. It seems to me that the principle here is founded for the general welfare of the society….”
The above principles are further elucidated by the Learned Authors of GATLEY ON LIBEL AND SLANDER 16th edition) Paragraph 441 at page 201 helpfully quoted by the appellants in their brief:
“There are occasions upon which, on grounds of public policy and convenience, a person may without having legal liability, make statements about another which are defamatory and in fact untrue. On such occasions, a man stating what he believes to be the truth about another is protected in so doing provided he makes the statement honestly and without any indirect or improper motive. These occasion are called occasion of Qualified privilege, for the protection which the law, on grounds of public policy affords is not absolute but depends on the honesty of purpose with which the defamatory statement is made. The rule being founded on the general welfare of society, new occasions for its application will necessarily arise with continually changing conditions.”

It is apparent then that for a defendant to be able to rely on the defence of qualified privilege in these circumstances, the defamatory statement must be made honestly and without any indirect or improper motive or malice as it is generally described. Doubtless, any matter relating to an attempted coup is a matter of public interest. The Appellants being a publishing outfit have a duty to disseminate information to the general public. But that duty carries with it the responsibility of ensuring that the information was subjected to proper investigation and is fairly accurate. In Gomes v. Punch (Nig) Ltd & anor (1995) 5 NWLR (pt. 602) 303 Aderemi JCA (as he then was) observed:
“…I should here say that it is much to be desired that newspapers, televisions or news media generally should be free to bring to the notice of the public any matter of public interest or concern. But in order to be deserving of that freedom, the press must show itself worthy of it. A free press cannot be deserving of that appellation unless it is a responsible press. The power of the press is enormous. It must not abuse that power. If a newspaper should act irresponsibly then it forfeits any claim to the defence of qualified privilege. The press in a society that upholds the rule of law as a way of life has a solemn duty to feed the society with true facts and honest comments….”

The public undoubtedly would be outraged if they are told that there has been an attempted coup and that the Respondent has been arrested for questioning if they later find out that nothing of the sort happened. Surely, the duty on a publishing outfit to disseminate information on matters of public interest must be circumscribed by the need to properly investigate and authenticate information before publication. Where there is evidence that the defendant being aware of the falsity of the information still went ahead to publish the false information, qualified privilege cannot avail it. The appellants in the instant case would no doubt be able to claim qualified privilege if at the time the information was disseminated they made it bona fide and in honest belief in its truth. But that is not the case. There was evidence by the sole witness of the Appellants under cross-examination that before the date of the publication on 5/4/04, Vanguard Newspapers had carried articles Exhibits DF1, DF2, DF3 and DF4 on 1st, 2nd, 3rd and 4th of April, 2004 where the existence of a coup was denied by the presidential spokesperson. The evidence of DW1 under cross-examination ran thus:
“The consequences of planning a failed coup are jail term or death. Someone who plans a coup wants to disrupt the Nigerian system. This is very bad. In my statement I admitted writing the story, ‘Coup Malu Oseni Magashi Arrested’. In Exhibit DF1 no mention was made of the claimant as having organised a coup. In Exhibit DF2 no mention was made of the Claimant in relation to any coup…..Exhibit DF3 came out on 03/04/2004 before my publication. Exhibit DF3 did not mention the claimant in relation to any coup. In Exhibit DF3 the Presidency denied a coup but admitted there was a security breach. The Chief of Army staff denied that there was a coup. Exhibit DF4 came out on 04/04/2004 before my publication.
The Presidential Spokes person Mrs. Remi Oyo denied the existence of a coup. From Exhibits DF2-DF4 the publications mentioned security breach.
My own came in on 05/04/2004 and I headed my publication “Coup; Malu, Oseni Magashi Arrested.” As at the time I published my story at best what was admitted was a security breach not a coup. I do not know if a Presidential spokes person has knowledge of what she is talking about, she will say what favours the Presidency. From DF4, the Presidential spokes person made a clear distinction between a coup and national security breach. Despite the distinction, I still headed my publication “Coup”

Before the offensive publication, the appellants had sufficient knowledge from the highest government source that there was no coup. By their own admission, the appellants were unable to confirm the information they got from ‘their source’ that the respondent was indeed arrested before they published the defamatory matter. They attempted but were unable to reach the Respondent for confirmation of the information. In paragraph 12 of his written deposition at page 166 of the Record, DW1 averred that the Claimant’s aide one Mr. Ibrahim Modibbo invited them to meet the claimant at a time when ‘their source’ hinted that the claimant was just left off the hook by security agents. This piece of information supports the view that the Appellants knew that the publication “Coup Malu Oseni Magashi Arrested” was not accurate but so sensational that any reader would assume that the respondent was under arrest for attempted coup. With the denial of a government spokes person that there was a coup, which denial was widely publicised in the dailies especially, in the Vanguard newspaper, the appellants as responsible journalists ought to have given a second thought to publishing the defamatory matter especially when ‘their source’ had informed them that he had been left off the hook. Throwing caution to the wind, they went ahead to publish such damaging information against a citizen with respect to such a heinous crime. The defence of qualified privilege cannot be open to a person guilty of such irresponsible behaviour.

Although the learned trial Judge at the end came to the conclusion that the conduct of the appellants was an abuse of privileged occasion which is evidence of malice, his Lordship’s style in the evaluation of the evidence caused some confusion as regards the availability of the defence of qualified privilege to the appellants. The appellants naturally tried to capitalize on the error. It is necessary for a better appreciation of the issue, to reproduce in extensio the relevant part of the judgment at pages 287-289:
“As regards the defence of qualified privilege which is a defence to an untrue publication it can only be claimed when the occasion of the publication is shown to be privileged. An occasion is privileged when the person who makes the document has a moral duty to make it 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 that the occasion may be privileged. See the Case of ILOABACHIE V. ILOABACHIE (SUPRA) RAYNOLD V. TIMES NEWSPAPER LTD AND ORS (1999) 4 ALL ER 609, section 9 Defamation Law Cap D2 Laws of Lagos State and section 39(1) 1999 constitution of the Federal Republic of Nigeria on the right to freedom of expression of the press.
In the instant case, I have taken into consideration that the Claimant is a public officer who held a high position in the Military and in society. His accomplishments, status and position in society are of public knowledge. Thus the Defendants had a legal, moral and social duty to the general public to publish the material in question and the general public had a corresponding interest in receiving the information.
In fact the story of the security breach was headline news.
The defence witness stated that the defence of qualified privilege avails it, as the publication was of a matter of public interest devoid of any malice either express or implied; that he has a legal as well as social duty to inform the public of the happenings in government circles that are of public interest and that he did not write the story to deliberately malign or injure the reputation of the Claimant.
On this issue I am inclined to agree with learned counsel for the Defendant that the defence of qualified privilege would avail the Defendant in this case
………
Learned Counsel for the defence referred the court to Section 39(1) and (2) of the Constitution of the Federal Republic of Nigeria which state as follows…..
He submitted that the defendants derive their duties from the Constitution of the Federal Republic of Nigeria as quoted above…….
He submitted that the Defendants have been able to prove the defence of qualified privilege which destroys the presumption of malice on the part of the Defendant.
Learned counsel for the defence also drew the attention of the court to Order 15 Rule 17(2) of the High Court of Lagos State Civil Procedure Rules which state that if the Claimant intends to allege that the Defendant was activated by express malice he shall file a reply giving particulars of the facts and matters from which such malice is to be inferred.
He submitted that failure on the part of the Claimant to file a reply and prove actual or express malice against the Defendants’ plea of qualified privilege reinforces the Defendants’ entitlement to the plea of qualified privilege.
In the case of OBASUYI v. EZEIGHU (1991) 3 NWLR (PART 181) 585 AT 596 SALAMI JCA defined qualified privilege thus “Qualified privilege is an occasion where the maker of a publication has an interest or duty whether legal, social or moral to make it to a person who has a corresponding interest or duty to receive it. The existence of such an interest or duty destroys the inference of malice which the taw makes and allows for the occasion to be privileged except there is evidence of actual or express malice.”
See also the case of OLOGE V. NEW AFRICA HILDINGS LTD (2002) FWLR (PART 119) 1614.
From the above definition it is my humble view that the Defendant has been able to prove the defence of qualified privilege to the extent that the occasion was privileged. The alleged coup in April, 2004 was of interest to every Nigerian at that time. The claimant did not file a reply as provided in order 15 Rule 17(2) of the High Court Civil Procedure Rules. However counsel for the Claimant submitted that there is ample evidence that goes to show that the Defendant had no honest belief in the truth of his statement which is evidence of malice. He observed that it is clear that DW1 had sufficient knowledge, facts and information of the denial by the highest government source that no coup existed. That from DW1’s deposition it is apparently clear that he never verified the information of his alleged source because according to him the Claimant who had allegedly been arrested was on his way to Lantang. The question is how could a person purportedly arrested and detained for planning a coup be on his way to Lantang.
This statement of DW1 shows that the Claimant was not arrested and detained at the time of publication. However DW1 went ahead to publish boldly on the front page of Exhibit ‘A’ that claimant was arrested.
This in my view is an abuse of privileged occasion which is evidence of malice. There is no doubt that the defendant had a duty to inform the public but he abused this privilege by publishing a story headed or captioned “coup” when there was ample indication that the government denied the existence of a coup but only admitted to a security breach. It is my view that the Defendants’ intention which smacks of malice was to sensationalise the issue with a view to selling more papers than vanguard that had already on the 1/4/04, 2/4/04, 3/4/04 and 4/4/04 carried a similar story.
In the final analysis it is my considered view that the Defendant have abused the privileged occasion and therefore the defence of qualified privilege cannot avail them…”
The problem with the evaluation of evidence by the trial Judge which I have highlighted above is that the trial Judge appeared to be approbating and reprobating. At one point he stated categorically that the defence of qualified privilege can avail the appellants. At another point he tried to explain what he meant by saying “from the above definition it is my humble view that the Defendant has been able to prove the defence of qualified privilege to the extent that the occasion was privileged.” At yet another point, the learned judge said that the defendants have abused the privileged occasion and that the defence of qualified privilege cannot avail them. What the learned trial Judge had in mind and was trying to say, in my humble view, was simply that the occasion was a privileged one. It is impossible in one breadth to say that the defence of qualified privilege can avail the defendants and then turn around in another breadth to say that the Defendants have abused the privileged occasion and therefore the defence of qualified privilege cannot avail them. It is either that the defence can avail them or it cannot. It is as clear as day light that the defence of qualified privilege can not avail the appellants in the circumstances of this case. Why would they choose to deceive the public by talking about a coup and mentioning names when there had been earlier publications saying there was no coup but only a security breach? Why would they publish that the Respondent had been arrested when their effort to confirm the information yielded no result? When a journalist encounters difficulty in confirming information, is it not wiser to tarry in publicising the matter, instead of throwing caution to the wind and publishing none the less? Any reasonable observer would come to the conclusion that this defamatory publication was made maliciously. It was not made bona fide. It was made for an indirect or improper motive. Why would a newspaper take the risk of publishing such sensational and seriously defamatory matter in the front page of their newspaper? Obviously for more sales of their newspaper with of course the attendant financial returns. Once a defamatory publication is made under such circumstances, the defence of qualified privilege cannot avail the defendant. The learned trial Judge eventually and correctly came to this conclusion. Learned counsel for the Appellants had submitted that the view of the learned trial Judge that the defendant wanted to sensationalise the issue so as to sell more papers is not supported by any evidence before the Court. This is not correct. The Respondent under cross-examination as CW4 at page 268 of the Record said:
“The Defendants benefited greatly from the sale of the publication. My proof is that it was very hard to get a copy because the newspaper was sold out.”
The trial Judge’s view that the Appellants sensationalized the publication with a view to selling more papers is neither speculative nor imaginary but supported by evidence led at the trial.

The Appellants had further submitted that the Respondent could not now raise the issue of malice because he failed to file a reply as required by Order 15 rule 17 (2) of the High Court of Lagos State (Civil Procedure) Rules 2004 which provides:
“Where in an action for libel or slander the defendant pleads that any of the words or matters complained of are fair comment on a matter of public interest or when published upon a privilege occasion, the claimant shall, if he intends to allege that the defendant was actuated by express malice, deliver a reply giving particulars of the facts and matter from which such malice is to be inferred.”
It thus appears that the only way to negative the defence of qualified privilege in an action for libel is to plead and prove express malice on the part of the defendant See Mamman v. Salaudeen (2005) 18 NWLR (Pt 958) 478; It is my view however that the plea of malice need not be in the Reply brief only. If by the pleadings there are facts showing malice, the failure of the Claimant to file a reply brief will be of no moment. It is then indeed unnecessary. The Defendants in their pleading and evidence referred to various publications in the Vanguard newspapers in which a top government official said there was no coup. They consequently knew before they published the defamatory matter that there was no coup but only a security breach. If they chose to ignore the statement of the government official, they did so at their own great peril. Although the occasion was a privileged one, the defence of qualified privilege could not avail the appellants because the publication was malicious. Learned Counsel for the Appellants in his brief referred to the learned Authors of GATLEY ON LIBEL AND SLANDER 6th Edition Pages 273-274 Paragraph 590 where it was stated:
“….If the Judge rules that the occasion is privileged, the plaintiff must, in order to succeed in the action, prove that the defendant was not using the occasion honestly for the purpose for which the law gave it to him, but was actuated by some indirect or ulterior motives, e.g. malice in the popular acceptation of the term.”
When the honesty of purpose with which the defamatory statement is made is in question and is apparent in the pleadings, there is no need for a reply as the defence of qualified privilege cannot avail the defendant.

The instant case is distinguishable from the case of Akomolafe v. Guardian Press Ltd (2004) 1 NWLR (pt 853) 1 where the Respondent successfully pleaded the defence of qualified privilege. There, several articles were published in the Guardian Newspaper about the state of affairs in the Company Registry. The 1st appellant was the Registrar of the Company Registry and the 2nd Appellant, her husband. The various articles detailed the graft, corruption, nepotism and storage cum retrieval problems hampering efficiency and fair play at the Registry. The newspaper claimed to have seen a complimentary card on which the lawyer-husband of the Registrar had written a note to his wife requesting that a client be helped to register a company. The various publications apparently led to the retirement of the Registrar. She and her husband sued Guardian Newspapers and others for libel. The judgment of the trial court dismissing the case was affirmed by the Court of appeal. The court observed:
“By the defence of qualified privilege, a defendant is saying no more than that even though the publication complained of by the plaintiff may be defamatory of him, since it was published to the generality of the public who the law recognises as having a corresponding interest to receive it from the defendant that has a standing duty to publish it on account of public policy, he the defendant cannot incur any legal liability so long as the publication was not actuated by malice. In the instant case, because the words were also shown to be true, the respondents were privileged and not liable for words that would have otherwise been libellous…”
In the instant case, the publication was actuated by malice because not only that the publication was false, there was evidence that the appellants knew it was false. The learned trial Judge was consequently right in holding that the appellants abused the privileged situation and could not rely on the defence of qualified privilege. Issue 1 is resolved against the appellants and in favour of the Respondent.

ISSUE 2:
Whether the award of N10, 000,000.00 (Ten Million Naira) as damages to the claimant is not excessive in view of the evidence adduced.

APPELLANTS’ ARGUMENTS:
Learned counsel’s submissions were more or less re-argument of his appeal on issues already resolved under issue 1 in order to convince the court that the award of N10, 000,000.00 (Ten Million Naira) was excessive. On principles governing award of damages, Counsel referred to the case of AFRICAN NEWSPAPER OF NIGERIA LIMITED V. ADAMU CIROMA (1996) 1 NWLR (PART 423) 156 AT PAGE 167-8.
Counsel also referred to PROF TAM DAVID WEST V. ODUWOLE (2003) FWLR (PART 163) 146 AT 161 where the court held that one of the factors that could be considered in awarding damages in libel matters is the recklessness with which the libel was published. Counsel submitted that the appellants were not reckless as steps were taken to verify the information but were frustrated in their attempts. He urged the court to allow the appeal and set aside the judgment of the lower court.

In the alternative, counsel prayed the court to reduce the amount of damages awarded considerably on the following grounds:
a) that it has been established that the defendants took precautionary measures to verify the story but that their efforts were frustrated when the claimant cancelled a meeting through which progress would have been made,
b) that the court should take judicial notice of the prevalent global economic meltdown which is affecting companies’ fiscal liquidity (including the first defendant’s).
Learned Counsel urged us to allow the appeal and set aside the judgment of the lower court and dismiss the suit as lacking in merit or alternatively to reduce the damages awarded considerably.

RESPONDENT’S ARGUMENTS:
Learned counsel on the quantum of damages payable for libel, referred to the cases of Mamman v. Salaudeen (2005) 18 NWLR part 958, page 478 at 488-489 and Mirchandani v. Pinheiro (2001) 3 NWLR (Part 701) Page 557 @ 576. Learned counsel submitted that in the instant case, the Respondent as CW4 at pages 267 to 268 of the Record of Appeal and through his witnesses, CW1, CW2, CW3 and CW5 at pages 262 to 269 of the Record gave evidence as to his social and political standing in society and as to the impact of the defamatory statement on his political career. He also gave the impact on his family, establishing emotional and psychological trauma. Counsel submitted that the Appellants through the evidence of their sole witness DW1 acknowledged the Respondent’s social and political standing in the society and the gravity of the nature of the offence of which the Appellants falsely alleged the Respondent was involved in.

Counsel further submitted that even though there was no iota of doubt that the Appellants’ publication of 5th April, 2004 was false, the Appellants failed, refused and/or neglected to exercise damage control by retracting same. The Appellants also showed the extent of the damage by admitting and acknowledging the fact that the Tribune Newspaper through which the false story was published is widely read throughout the country and even abroad via the internet.

Counsel submitted that both in their evidence and written address, the Appellants admitted that the issue of a security breach was prevalent during the time of the reckless and mendacious publication of and concerning the Respondent who at that point in time was the Deputy National Chairman of the opposing Political Party in the country and taking into consideration the military background of the Respondent (a retired Lieutenant General in the Nigerian Army) such publication carried extra sensitivity. Counsel contended that the Appellants can not be said to have conducted themselves professionally in the way and manner of releasing information to the public; that contrary to the Appellants’ arguments, that they did not exercise sufficient due diligence in verifying the authenticity of their story taking into account its sensitivity and the fact of the repeated categorical denials by very senior and top government officials.

Counsel submitted that the Respondent is a Retired Lieutenant General in the Nigerian Army who had occupied numerous positions both in the Army and in Government. He was the Deputy Chairman of a leading political party in Nigeria and an elder statesman. Counsel submitted that these facts were acknowledged by the Appellants through their sole witness DW1. Counsel submitted that the status of the Respondent naturally generated intense interest in the defamatory publication. He opined that aside from the huge financial profit the Appellants would have made from the sale of the false publication, a lot of right thinking persons would have been disgusted by the fact that a major political player was involved in attempting to overthrow a democratically elected government.

Counsel submitted that the 1st Appellant is the publisher of the Tribune Newspapers whilst the 2nd Appellant is the author of the libelous publication of and concerning the Respondent. He argued that the Tribune Newspaper is a widely read newspaper both within the country and abroad and as such, the extent of the publication was enormous and far reaching and that taking into consideration the instability of the country around that period, right thinking persons within the country and abroad would have believed the content of the unauthenticated and false publication.

Counsel submitted that the conduct of the Appellants from the time the libel was published to the time judgment was delivered left much to be desired. In spite of knowledge of the falsity of the publication and the call by the Respondent for retraction of the publication, the Appellants stubbornly and irresponsibly failed, refused and/or neglected to do so leaving in the minds of millions of readers the impression that the Respondent actually did plan a coup and was arrested, consequently stigmatising the Respondent with many people till date believing that the Respondent was involved in a coup and arrested for same, thereby branding him a saboteur.

Counsel submitted that taking the above into consideration and in view of the huge financial benefits made by the appellants from the sale of the newspaper that the mount awarded was not excessive. Counsel finally submitted that the appellants were not repentant and have not shown any remorse. He urged us to uphold the Judgment of the Learned Trial Judge and to dismiss the Appellants’ appeal as lacking in merit.

RESOLUTION:
The general rule is that an appeal court will not interfere with an award of damages by a trial court except where it is shown:
(a) That the trial court acted upon a wrong principle of law or
(b) That the amount awarded by the trial court is ridiculously too high or too low;
(c) That the amount was an entirely erroneous and unreasonable estimate having regard to the circumstances of the case.
See the cases of Zik’s Press Ltd v. Ikoku (1951) 13 WACA 188; Idahosa v. Oronsaye (1959) SCNLR 407; Eboh v. Akpotu (1968) 1 All NLR 220; James v. Mid Motors (Nig) Ltd (1978) 11-12 SC 31; Williams v. Daily Times (1990) 1 NWLR (Pt. 124) 1 @ 49; Guardian Newspapers Ltd v. Ajeh (2011) LPELR-1343 (SC); AFRICAN NEWSPAPER OF NIGERIA LIMITED V. ADAMU CIROMA (1996) 1 NWLR (PART 423) 156 AT PAGE 167-8

Once the plaintiff in a libel case proves that a libel has been published of him without legal justification, his cause of action is complete.

Damage is presumed and he need not prove that he has suffered any actual damage or injury to his reputation. Cross River State Newspapers Corporation v. Oni (1995) 1 NWLR (Pt. 371) 270.

The amount to be award as damages in libel cases is a matter at the discretion of the trial Judge and the factors which the courts usually consider are:
a. The conduct of the plaintiff;
b. The position and standing of the plaintiff;
c. The nature of the libel;
d. The mode and extent of the publication;
e. The absence or refusal of any retraction or apology; and
f. The whole conduct of the defendant from the time when the libel was published down to the very moment of the judgment.
See EJABULOR V. OSHA (1990) 5 NWLR (PT. 148) 1 @ 16 A-C; PROF TAM DAVID WEST V. ODUWOLE (2003) FWLR (PART 163) 146 AT 161.
The learned trial Judge in his judgment at page 289 of the Record took into consideration these factors. He observed:
“In the instant case there is substantial evidence of the Claimant’s position and status in society. He is an elder statesman, a military officer, former governor and minister.
Furthermore, the libel was such that it recklessly damaged the reputation of the Claimant amongst his family and friends
This fact has not been rebutted by the defence.
Also although the Defendant was given every opportunity to make amends, the Defendant up to date has refused or neglected to do so. Therefore I am satisfied that the Claimant is entitled to an award of damages. It was held by Ayoola JSC in OFFOBOCHE V. OGOJA LOCAL GOVERNMENT (2001) FWLR (Part 68) 105 that “A man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation.”
The person who has injured him in his reputation must pay for the injury that the Claimant has suffered. To this extent there is an element of compensation in the award of damages made.
Having considered the standing of the Claimant and the unrepentant attitude of the Defendant, I hereby award the sum of N10 Million as damages against the Defendants jointly and severally for the libellous publication concerning the Claimant. ”
The learned trial Judge did consider all that needed to be considered in assessing the amount he awarded as damages. The libellous publication was indeed a very serious one. The appellant through their sole witness DW1 at page 271 of the record under cross-examination admitted that the consequences of planning a failed coup are jail term or death. It was not an issue to be toyed with at all. The conduct of the defendants throughout was defiant. There was no remorse at all. On the contrary they stood their ground even in the face of overwhelming evidence that there was no coup and that the Respondent was not arrested. At the material time, the respondent was the leader of a political party and the libellous publication affected his standing both in Nigeria and within the International Community as the Defendants’ paper was published on line and read outside the country. There was also evidence that the publication earned the appellant huge revenue. Learned counsel for the Appellant in praying the court to reduce the amount of damages awarded had asked the court to take judicial notice of the prevalent global economic meltdown which is affecting companies’ fiscal liquidity. This is a factor the Appellants should have thought of when they misguidedly, adamantly and with a good measure of bravado refused to back down even up to the point of this appeal. There is no reason whatsoever to interfere with the amount awarded by the lower court as damages.

This appeal is unmeritorious. It is hereby dismissed. The judgment of Taiwo J. of the High Court of Lagos, Lagos Judicial Division in suit no LD/805/2004 delivered on the 2nd day of February 2009 is affirmed with costs assessed at N50, 000.00.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree explicitly with the judgment prepared by my learned brother, Chinwe Eugenia Iyizoba, J.C.A., which I had the benefit of reading in advance. I do not find any need to add anything further of my own to the painstaking lead judgment, save to emphasise that the conclusion reached by the court below is correct and supported by weight of evidence as the publication of the defamatory matter, was deliberate and in utter disregard and mockery of the true position of the facts on ground at the material time.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A: I have had a preview of the lead judgment just delivered by my learned brother, C.E. Iyizoba, JCA. I am in complete agreement with the reasoning and conclusion contained therein, given the fact that my learned brother exhaustively considered the issues raised, the relevant facts and the laws applicable thereto, thus leaving nothing useful for me to add.

I will however emphasize that the award of damages for libel is discretionary and as such, there are no set rules or criteria for determining the quantum. Each case is decided upon its peculiar facts and circumstances. Some guidelines do however exist which the court would consider in determining the amount of damages it would award in a libel case. They include:-
(a) The position and standing of the plaintiff in the society; (b) the nature of the publication (c) the effect of the publication on the plaintiff (d) the absence or refusal of retraction and apology by the defendant (e) the recklessness with which the libel was published and (f) the current value of the country’s official currency.
See OFFOBOCHE V. OGOJA LOCAL GOVERNMENT (2001) 16 NWLR (PT 739) 458; DAVID WEST V. ODUWOLE (2003) 12 NWLR (PT 835) 682 and MERCHANDANT V. PINHEIRO (2001) 3 NWLR (PT 701) 577.
It is however apposite to note that the law on powers of the Appellate court to interfere with the award by the trial court is settled. To justify reversal or interference with the amount of damages awarded by a trial court, it will be generally necessary for the appellate court to be convinced that:-
(a) the trial court acted upon wrong principle of law.
(b) The trial court has acted under misapprehension of facts.
(c) the trial court has taken into account irrelevant matters or failed to take into account relevant matters.
(d) where injustice will result if the appellate court does not interfere
(e) The amount awarded is either ridiculously too high or very small as to make it, in the judgment of the appellate court, an entirely erroneous estimate of the damages to which the plaintiff is entitled.
See generally USONG V. HANSEATIC INTERNATIONAL LTD (2009) 11 NWLR (PT 1153) 522; IDAHOSA v. ORONSAYE (1959) SC NLR 407; BALA v. BANKOLE (1986) 3 NWLR (PT 127) 141; ZIK’s PRESS LTD v. IKOKU (1951) 13 WACA 188; UBN LTD v. ODUSOTE (1995) 9 NWLR (pt 421) 558; UMOETUK V. UNION BANK PLC (2001) FWLR (PT 81) 1849 and EBERE V. ABIOYE (2005) ALL FWLR (PT 264) 945.

In the instant case the learned trial judge duly considered the circumstances of the libel, the conduct of the appellant before and during the trial as well as the position of the Respondent in the society vis-a-vis the impact of the libelous publication on his reputation before reaching the decision to award the sum of N10 million as damages.
The said sum is to my mind reasonable and adequate and as such will not deserve any interference by this court.
For this and the fuller reason contained in the lead judgment, I too hold that this appeal lacks merit and is hereby dismissed.

The judgment of the lower court delivered on the 2nd day of February 2009 is hereby affirmed. I also abide by the consequential orders in the lead judgment including that of costs.

Appearances

TOKUNBO OSINOWO For Appellant

AND

TUNDE AKINRIMISI For Respondent