THE SUN PUBLISHING LIMITED & ORS v. DURACLEAN SPECIALIST NIGERIA LIMITED
(2018)LCN/12233(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 4th day of December, 2018
CA/J/29/2017
RATIO
COURT AND PROCEDURE: WHETHER COURT CAN MAKE OUT CASE FOR PARTIES
“The law is settled that the Court cannot make out a case for parties other than the one set up by parties themselves. See Suberu v The State (2010) 3 SCNJ 491 @ 504 lines 1-5, Yahaya v Dankwambo (2016) 7 NWLR (pt.1511) 284 @ 333 paras B-D.” PER ADZIRA GANA MSHELIA, J.C.A.
TORT LAW: THE MEANING OF ‘DEFAMATION’
“What is defamation? The word defamation is defined as a statement which if published of and concerning a person, is calculated to lower him in the estimation of right thinking men or cause him to be shunned or avoided or to expose him to hatred, contempt, or discreparaging or injurious to him in his office, profession, calling, trade or business. See The Sketch Publishing Co. Ltd and Anor v Alhaji Azeez A. Ajagbe Mokerefi (1989) 1 NWLR (Pt.100) 678, Ayeni v Adesina (2007) 7 NWLR (Pt.1033) 233, Labati v Badmus (2006) 1 NWLR (Pt.1014) 199, Gately on libel and slander 7th Edition, Chapter 1 pages 2 and 6 paragraph 4, Ishaku & Anor v Aina (2004) 11 NWLR (Pt.883) 146” PER ADZIRA GANA MSHELIA, J.C.A.
TORT LAW; WHETHER LIBEL IS ACTIONABLE WITHOUT PROOF OF DAMAGES
“The law is trite that libel is actionable without proof of damages because it is in a written or permanent form. See Ogbonnaya v Mbalewe (2005) 1 NWLR (Pt.907) 252. The learned trial Judge in assessing damages considered the standing of the plaintiff in the business community, the conduct of the plaintiff, the nature of libel which was baseless and unprovoked, the fact that Sunday Sun Newspaper has wide circulation, absence of retraction and lack of remorse on the part of the Appellant.” PER ADZIRA GANA MSHELIA, J.C.A.
TORT LAW: TO PROVE LIBEL
“The plaintiff must satisfy the trial Court in line with the position espoused in Supreme Court case of V.M Iloabachie, Esq. v Benedict N. Iloabachie (2005) 5 SCNJ 284 @ 314. To sustain an action for libel, the plaintiff must prove that: 1) The publication was in writing, 2) The publication was false, 3) The false publication was made to a person apart from the plaintiff and the defendant, 4) The publication referred to the plaintiff and defamatory of the said plaintiff, and 5) The publication was made by the Defendant.” PER ADZIRA GANA MSHELIA, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
1. THE SUN PUBLISHING LTD
2. FUNKE EGBEMODE
3. DANIEL ALABRAH Appellant(s)
AND
DURACLEAN SPECIALIST (NIG) LTD Respondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Judgment of High Court of Justice Plateau State delivered on 15/07/2016 by Y.G Dakwak J. in Suit No. PLD/J84/2010.
The plaintiff a Limited Liability Company (now Respondent) by a writ of summons commenced an action at the High Court claiming against the defendants (now Appellant) jointly and severally as per paragraph 38 of its statement of claim as follows:
a) A Declaration that the act of the defendants whereby they listed and published the name of the plaintiff among others under the heading ‘ANALYSIS OF SUSPICIOUS CONTRACTS AWARDED, EXECUTED AND PAID FOR IN NIPSS, WITH RESIDENT DUE PROCESS COMMITTEE, DG?S TENDER BOARD AND BMPIU APPROVALS’ in their publication, Sunday Sun edition of October 19, 2008 at page 4 and particularly page 8 amounts to libel.
b) An order of Court directing the Defendants to publish a retraction of the said story as it concerns the plaintiff in a prominent part of two National Newspapers and the Sunday Sun Newspaper together with a written apology.
c) N100,000,000.00 (One Hundred Million Naira) only as general damages against the Defendants jointly and severally for libel.
d) The costs of this action.
The Respondent (plaintiff at the trial Court) proceeded to call 3 witnesses to prove its case and thereafter closed same after the Defendants/Appellants had failed to put in appearance or a defence within the time allowed by the rules of the trial Court. Subsequently, after the Respondent had closed its case, the Appellants with leave of Court, put in an appearance and after waiving their right to recall the Respondent’s witnesses for cross-examination, called a sole witness in defence of the writ and closed their case. After both parties had filed and exchanged their written addresses the trial Court delivered a well considered Judgment in which it found the Appellants liable for libel and granted the reliefs sought by the Respondent with such variations as it deemed fit.
Unhappy with the said Judgment, Appellants lodged an appeal to this Court vide their Notice and Grounds of Appeal dated 3rd day of August 2016 containing five grounds of appeal.
In compliance with the rules of Court, parties exchanged their respective Briefs of Argument. The Appellants Brief settled by Dr. Ehiogie West-Idahosa, Esq., Dolly Irabor, Esq., S.A Abbah, Esq., Uju Chukwura, Esq. and S.O Okpanachi, Esq. was dated 22nd day of November 2017 and filed on 24/11/2017. While the Respondent’s Brief settled by Mogbeyi Tolu Omatsola, Esq., T.J.J Danjuma Esq. and Christiana N. Bitrus Esq. was dated 26th January 2018 and filed on 29th January 2018 but deemed properly filed and served on 26th February 2018. When the appeal came up for hearing both counsel adopted their respective briefs of argument. Appellants’ counsel urged the Court to allow the appeal. While Respondent’s counsel urged the Court to dismiss the appeal.
In the Appellants Brief of Argument three issues were distilled for determination by the Court as follows:
1. Whether the Respondent established a case of Defamation by libel against the Appellant at the lower Court, having regards to the requirement of the law to prove same.
2. Whether the defence of qualified privilege by the Appellants was defeated to entitle the Respondent to the Reliefs granted at the lower Court.
3. Whether the award of the sum of N10,000,000.00 (Ten Million Naira) was justifiable taking into account the entire circumstances of the case.
On the other hand the Respondent’s Brief contained two issues for determination in this appeal as follows:
a) Whether the trial Court was right to find that the Appellants article contained in the Sunday Sun Newspaper publication of October 19th, 2008 at page 4 and particularly page 8 amount to Defamation by Libel under the heading. ANALYSIS OF SUSPICIOUS CONTRACTS AWARDED, EXECUTED AND PAID FOR IN NIPSS, WITH RESIDENT DUE PROCESS COMMITTEE, DG’S TENDER BOARD AND BMPIU APPROVALS, contained in the Sunday Sun Newspaper publication of October, 19th 2008 at page 4 and particularly page 8 amounts to Defamation by Libel.
b) Whether the trial Court was right to find that the attempt by the Appellants to plead the defence of qualified privilege at the trial Court was defeated by the reckless way and manner that they (Appellants) reported the article contained on the Sunday Sun Newspaper publication of 19th October, 2008 at page 4 and particularly page 8 of same.
I have examined the issues raised by both counsel for determination in this appeal. I am inclined to adopt the issues raised by the Appellant. The Respondent’s issues will be treated along with that of the Appellants. Appellants argued issues 1 and 2 together.
ISSUES 1 AND 2
In arguing these issues, learned counsel for the Appellant submitted that the case of the respondent against the Appellants is predicated on article published in the Sunday Sun Newspaper on the 19th October, 2008, tendered in evidence as Exhibit 1. Counsel contended that a careful perusal of the entire article under reference which covers several pages reveal that no word, phrase or sentence refers to Respondent in a negative sense. That the only reference to the Respondent in the entire article which began at page of Exhibit 1 can be seen at page 8 as rightly reflected in paragraph 21 of the witness statement of PW1. Learned counsel submitted that paragraphs 23, 25, 26, 31 and 34 of the witness statement on oath which can be seen on pages 19-20 of the record confirms that the figures and the entire information regarding the respondent is correct and also that the publication did not apply to the Respondent.
That the only quarrel of the Respondent was the use of the word ‘suspicious’ in the heading of the article. It was what formed the basis of the Judgment by the learned trial Judge. See pages 215-216 of the record. According to counsel the use of suspicious on its own cannot be a conclusion of any opinion. That the law is settled that in considering the words in a publication in a case of libel, it is the brand and general impression conveyed by the publication that has to be considered and not the meaning of each word under analysis taken out of con. Reliance placed on Ologe v New Africa (2013) 3 SCNJ 96 @ 110 lines 25-32. That the trial Judge did not evaluate the body of the article to say what was false and/or defamatory against the respondent. That for there to be valid finding on libel, the publication must be evaluated as whole to convey defamatory meaning. See Ologe v New Africa (supra) @ 122 lines 30-36.
Learned counsel faulted the finding of the trial Judge when it singled out the word ‘suspicious’ and defined it and relied on it to find that the case of libel has been made out. That the learned trial Judge never alluded to which part of the body is defamatory against the respondent.
The law is settled that the Court cannot make out a case for parties other than the one set up by parties themselves. See Suberu v The State (2010) 3 SCNJ 491 @ 504 lines 1-5, Yahaya v Dankwambo (2016) 7 NWLR (pt.1511) 284 @ 333 paras B-D.
Counsel maintained that the con in which the word suspicious was used could not have been in relation to the respondent. That it was used to describe the activities of the contract awarding authorities at NIPSS.
Counsel submitted that since the word complained of was not a direct description of the Respondent, he has a duty to show that the word contained in the caption of the publication is defamatory or convey a defamatory imputation. That the Respondent and his witnesses failed to do so. Cited in aid Chief Nsirim v Nsirim (1990) 3 NWLR (pt.138) 285 at 289.
Counsel cited Okolo v Mudivest Newspaper Corporation (1977) 1 SC 33, wherein the Supreme Court held that in considering whether publication in a newspaper is libelous, it is the broad impression reasonably conveyed by the publication to an ordinary man that is relevant and not the meaning of each word used in the publication. See also Ologe & Ors v New Africa Holdings Ltd (2013) 3-4 SC *Pt.1) (no page reference). That the Court is bound to consider every material fact(s) or evidence before reaching its decision and where this is not done as in the instant case, such decision cannot stand. See Jimjaja v C.O.P (2011) NWLR (Pt.1213) 375 @ 391-392 paras B-C.
It was further submitted that after considering the pleadings and evidence of both parties, the learned trial Judge rightly found and held that the Appellants raised the defence of qualified privilege. That the learned trial Judge suo motu discarded this defence. Reference was made to the finding at page 217-218 of the Record of Appeal. Counsel submitted that the position of the law is clear that when the defence of qualified privilege is raised, for the plaintiff to succeed in a claim of libel, he has a duty to plead and prove malice. That where a defendant on the other hand raised a defence of qualified privilege as found by the trial Judge in the instant case, the burden shifts to the plaintiff to plead and prove express malice by mandatorily filing a reply to the statement of defence to give details of the express malice alleged against the defendant. Reliance placed on Mainstreet Bank Ltd v Binna (2016) 12 NWLR (Pt.1526) 316 @ 332-333 paras G-D.
That the effect of failure to file reply to the Statement of Defence where there is finding that a defence of qualified privilege has been raised by the defendant is fatal to the case of the Respondent. Cited in aid Sun Publishing Ltd v Aladinma Medicare Ltd (2016) 9 NWLR (Pt.1518) page 557 at 605 paras D-H. That Respondent in this case did not deem it necessary to file any reply in rebuttal of the defence of qualified privilege raised by the Appellants. That the Court is simply an arbiter as such it is for parties to present their case and not for the Court to decide the matter as prescribed by them. He urged the Court to resolve the two issues in favour of the Appellants.
In the Reply Brief of Appellants counsel, counsel submitted that Respondent’s counsel misconceived the law when he argued that the Appellants failed in its entirety to Cross-Examine the 1st Respondent’s witness PW1 at the lower Court and that such failure amounts to an admission of the evidence of PW1, hence the respondent was entitled to Judgment thereupon. That Respondent relied on the case of Newbreed Org. Ltd v Erhomosele (2006) 5 NWLR (Pt.656) 499 at 507, (2006) ALL FWLR (Pt.307) pages 1118 paras C-E. That a casual perusal of the above case show that the case is inapplicable to the present case before the Court. That Appellants had put a defence to the evidence led by the Respondent and did not rest their case on that of the Respondent.
Counsel also cited case of Akporo v Ughalaa 91995) 8 NWLR (Pt.4111) to show that failure of the Appellants to cross-examine PW1 will not amount to an admission. Counsel maintained that the argument of the Respondents is misconceived and urged the Court to allow the appeal. in the allegation that Appellants did not plead qualified privilege in their statement of defence, counsel referred to pages 96-97 of the record particularly paragraph 6 to show that same was pleaded. That Appellant were under a great legal and moral duty to make the publication. Cited in aid Akomolafe & Anor v Guardian Press Ltd & Ors (2003) LPELR 5910 (CA). That the duty of the Appellants is enshrined under S.22 of the 1999 Constitution.
He concluded that the Appellants acted in line with their legal and moral duty and was not actuated by malice.
In response to the 1st and 2nd issue, learned counsel for the Respondent posed a question whether the trial Court was right to find the Appellants article under the heading:
“ANALYSIS OF SUSPICIOUS CONTRACTS AWARDED, EXECUTED AND PAID FOR IN NIPSS, WITH RESIDENT DUE PROCESS COMMITTEE, DG’S TENDER BOARD and EMPIU APPROVALS”.
Contained in the Sunday Sun Newspaper publication of October, 19th 2008 at page 4 particularly page 8 amounts to defamation by libel?.
Counsel answered in the affirmative. On definition of what amounts to tort of defamation counsel referred to Daura v Danhauwa (2011) ALL FWLR (Pt.558) 999-1,000 paras H.A. Learned counsel submitted that it can be gleaned from the originating process and statement of claim. See pages 40-75 of the record. That the grouse of the Respondent who was the plaintiff at the trial Court is frontly steeped in the listing or naming of the Respondent as one of the companies whose dealings with the National Institute for Policy and Strategic Studies Vom, (NIPSS) were suspiciously awarded, executed and paid for in NIPSS, in the Appellant’s Sunday Newspaper publication of the 19th October, 2008 at pages 4 and particularly at page 8 of the said publication.
Learned counsel submitted that since the said acts of defamation were in permanent written form, the Respondent had the onus of proving/sustaining an action of libel, the plaintiff must satisfy the trial Court in line with the position espoused in the Supreme Court case of Iloabachie Esq. v Benedict N Iloabachie (2005) 5 SCNJ 284 @ 314 and also 315. According to counsel, at the trial Court, the Respondent called three witnesses one of which was one Mr. Haroun Audu, who attested to the good reputation and who also stated that he was a long time patron of the Respondent.
He also attested to the fact that reading the Appellant’s article in Sunday Sun Newspaper of 19th October, 2008 had upset him as same had the tendency to create a bad/negative impression in the minds of those that did not know the Respondent as much as he did. That at the trial Court Respondent also tendered several documents to prove its case including the Sunday Sun Newspaper publication of 19th October, 2008 published by the Appellants herein and carrying the permanently written publication which claimed to analyze suspiciously awarded, executed contracts between the National Institute for Policy and Strategic Studies (NIPSS) Vom and other companies one of whom was the Respondent herein. That Appellant never controverted the evidence of the Respondent and it is trite law the opposing party that has failed to controvert the evidence of an opponent accepts same as the true fact or position of the suit. Reliance placed on Newbreed Org. Ltd v Erhomosele (2006) ALL FWLR (Pt.307) page 1118 paras C-E.
Learned counsel at page 6 of the brief set out facts in paragraph 4.06 (a) – (e) that supports their case. According to counsel the trial was indeed overwhelmed with facts that supports the standards required to establish defamation by libel which it rightly held in favour of the Respondent and as a corollary to same and urged Court to find same and resolve the first issue in favour of the Respondent.
On the issue of qualified privilege learned counsel submitted that the defence of qualified privilege is one of the potent defences to the allegation of defamation. Reference made to Iloabachie v Iloabachie (supra) at pages 293-297. That though defence of qualified privilege was expressly pleaded by the Appellants at the trial Court, the Appellants did plead in paragraph 9 of their Statement of Defence that the content of their publication was in the public interest. See pages 98 and 99 of the Record of Appeal. Counsel submitted that in this instant appeal indeed there is a potent exception to the need to file a reply to a Statement of Defence where the Defendants have pleaded the defence of qualified privilege especially as it concerns a newspaper outfit.
The exception was captured in the case of African Newspapers (Nig.) Plc v Useni (2015) 3 NWLR (Pt.1447) page 486-487 paras C-A. On how to negative defence of qualified privilege in action for libel, counsel cited the case of African Newspapers (Nig.) Plc v Useni (supra). See also Mamman v Salaudeen (2005) 18 NWLR (Pt.958). Counsel submitted that the Appellants elected to make a mere blanket statement that its actions to wit: Its publication in The Sun Newspaper on 19th October, 2008 at page 4 and particularly page 8, was in the interest of the public without stating or pleading anything more for instance, its source of information, mode of investigation or any other pleading to show that it had carried out its duty to the public in a responsible or diligent manner.
Counsel also referred to the contradictory evidence of the sole witness called by the Appellants. He urged the Court to resolve the issue in favour of the Respondent.
ISSUE 3
While arguing issue three, Appellants counsel conceded that where libel is proved before a Court, the assessment of damages is subjective. That this would be so whether the successful party proved that he had suffered any resulting actual damage or injury to his reputation, for such damages are presumed as held in Oduwole & Ors v Prof. Tam David West (2010) 10 NWLR (Pt.1203) 598 SC. That in the instant case libel was not proved as required by law as argued in issues one and two above. According to counsel the suit of the Respondent ought to be dismissed. That trial Court ought to have considered the circumstances of the case. According to counsel the caption of the story ought to have been read together with the story to see whether the story was indeed defamatory as to attract the N10 Million damages awarded against the Appellants by the trial Court.
Counsel submitted that the learned trial Judge relied on the standing of the Respondent in the business community to entitle it to the sum of N10 Million (Ten Million Naira) only as general damages, even though the Exhibits tendered in an attempt to establish the standing of the Respondent in the business community was that of PW1 who is not a party in this case and a distinct legal entity with the Respondent.
That whatever the position of PW1 he is different from Respondent. See Akpan v UBN Plc (2011) NWLR (Pt.123) 399 @ 415 paras D-F. That assuming without conceding that the Respondent proved his case for libel before the trial Court, the damages awarded against the Appellant was punitive, taking into consideration all the instances of this particular case. Reliance placed on Labati v Badmus (2006) LPELR -5854 (CA). He urged the Court to resolve issue 3 in favour of the Appellants.
In response to the third issue raised by the Appellant, Respondent’s counsel submitted that this issue will for intents and purposes be rendered an academic issue by the time the Court consider the two issues raised herein by the Respondent for germane consideration of this appeal. That the award of damages for libel is discretionary. Reference made to African Newspapers (Nig.) Plc v Useni (supra), wherein the Court found that for an Appellate Court to interfere with the amount of damages awarded by a trial Court, the following ingredients must be established. The ingredients enumerated are as follows:
a) The trial Court acted upon a wrong principle of law,
b) The trial Court acted under misapprehension of facts.
c) The trial Court took into account irrelevant matters or failed to take into account relevant matters.
d) Injustice will result if Appellate Court does not interfere.
e) The amount awarded is either ridiculously too high or too low.
f) The amount was entirely erroneous and unreasonable estimate having regard to the circumstances of the case.
Counsel contended that the trial Court duly considered the circumstances of the libel and none of the ingredients listed above were established either at the trial Court or at this instant appeal. He urged Court to discountenance issue 3 raised by the Appellants.
In resolving issues 1 and 2, it is pertinent at this stage to examine Exhibit ‘1’ the publication in the Sunday Sun Edition of 19th October 2008 complained of. The defamatory words are as contained in the publication (exhibit 1) portion of same reproduced in paragraph 5 of the statement of claim. Paragraph 5 read thus:
“The plaintiff avers that by a publication of the Sunday Sun edition of October, 19 2008 her name was listed and published among others under the heading ANALYSIS OF SUSPICIOUS CONTRACTS AWARDED, EXECUTED AND PAID FOR IN NIPSS, WITH RESIDENT DUE PROCESS COMMITTEE, DG’S TENDER BOARD AND BMPIU APPROVALS” at page 4 and particularly page 8 of the Defendants Newspaper thus:
Duraclean Specialist (Nig.) Ltd
Cleaning of facilities of NIPSS (Unity HNI, Restaurant and Auditorium
N543,600.00
Approved by DG recommendation of the DGBT Minutes of meeting of Friday 2 November, 2005
Contesting with choice cleaning co. @N935,550.00 and D.A cleaning Enterprises @ N898,330.00
What is defamation? The word defamation is defined as a statement which if published of and concerning a person, is calculated to lower him in the estimation of right thinking men or cause him to be shunned or avoided or to expose him to hatred, contempt, or discreparaging or injurious to him in his office, profession, calling, trade or business. See The Sketch Publishing Co. Ltd and Anor v Alhaji Azeez A. Ajagbe Mokerefi (1989) 1 NWLR (Pt.100) 678, Ayeni v Adesina (2007) 7 NWLR (Pt.1033) 233, Labati v Badmus (2006) 1 NWLR (Pt.1014) 199, Gately on libel and slander 7th Edition, Chapter 1 pages 2 and 6 paragraph 4, Ishaku & Anor v Aina (2004) 11 NWLR (Pt.883) 146.
It is settled law that the question as to whether the words complained of are in their natural and ordinary meaning defamatory is a question of fact. In Lewis v Daily Telegraph Ltd (1964) A.C 234-259 and 260 at page 258 Lord Red spelt out the test for determining the natural and ordinary meaning of words as follows:
“Therefore is no doubt that in actions for libel the question is what the words would convey to the ordinary man. It is not one of construction in the legal sense. The ordinary man does not live in an Ivory tower and he is not inhibited by knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs’ what the ordinary man would infer without special knowledge has generally been called the natural and ordinary meanings of the words, But more often the story is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regard as part of their natural and ordinary meaning “.
The test, according to authorities, is whether under the circumstances in which the writing was published, reasonable men to whom the publication was made, would likely to understand it in a libelous sense . What the ordinary man not avid for scandal, would read into the words complained of must be a matter of impression?.
It is trite that in an action for defamation it is the Court that decides in the end whether the words complained of are defamatory. See The Sketch Publishing Co. Ltd v Ajagbe Mokeferi (supra) and African Newspaper v Ciroma (1996) 1 NWLR (pt.423) 156 at 163. In determining whether the words are defamatory or not the first step to be taken by the trial Judge is to consider the meaning the words would convey to the ordinary person. See Okolo v Midwest Newspaper Cooperation & Ors (1977) NSCC 11, (1977) 1 SC 33.
Having ascertained that, the next step is to consider the circumstances in which the words were published and determine whether in those circumstances the reasonable person would be likely to understand them in a defamatory sense. See Okafor v Ikeanyi (1979) Vol. 12 NSCC 43, (1979) 3-4 Sc 99.
Having defined what defamation is and how it is ascertained, the next question is whether the natural and ordinary meaning of the words complained of set out supra in paragraph 5 of the statement of claim (Exhibit 1) and the entire content of paragraph 6 of the statement of claim convey defamatory meaning. I have earlier stated the guiding principle which is to the effect that: The ordinary and natural meaning of the words are to be seen from the eyes of a reasonable man of ordinary intelligence guided by general knowledge and not from the eyes of a person who is fettered by legal rules of construction or forced into an utterly unreasonable interpretation. See Jones v Skelton (1963) 1 NWLR (Pt.1362) 1370-1371 adopted with approval by Supreme Court in Maurice Dumbo and Ors v Stephen Idugboe (1983) 1 SCNLR 29 page 47-48.
Applying the principle to the words complained of in Exhibit ‘1’ the necessary inference a reasonable man would draw from the words complained of is what the learned trial Judge ended with in the Judgment at pages 215-216 lines 14 of the record of appeal wherein he said:
“The evidence as led by the PW1, PW2, PW3, which was not controverted, showed that the article was not only libelious but also false from their knowledge of the reputation of the plaintiff. The PW3 in my view, who is neither a staff or has any interest in the plaintiff ought to qualify as a right thinking member of the society. I have read the heading and the entire body of the article in question, and they are exactly set out in the Exhibit 1, I hold the most considered view that when the heading of the article is read together with the body of the article, a defamatory meaning will be conveyed to ordinary person. This is because from the heading, the impression conveyed to an ordinary man is that is reasonable, is that the plaintiff with other companies were involved in the award, execution, and payment for suspicious contracts at the National Institute of Policy and Strategic Studies.
The word ‘suspicious’ is defined in the Oxford Advanced Learned Dictionary 6th Edition as follows, ‘feeling that somebody has done something wrong, illegal or dishonest without having any proof (2) making you feel that something is wrong, illegal or dishonest (3) not willing or able to trust something’. The word ‘suspicious’ in the con in which is used in the article, in my view connote, dishonesty, illegality in relation to the contracts in question. The law is now trite, that as a matter of law, such words are defamatory in their ordinary and natural; meaning and are capable of bearing defamatory meanings in the minds of reasonable men. N.T.B Lawson v Kevin Mahor & Anor (1975) NWLR (Pt.154). In an action for libel the question whether the words complained of are infact defamatory; and whether they are capable of conveying a defamatory meaning in the minds of reasonable persons in a particular case are to be determined by the Court. Sketch v Ajagbe Mokeferi (supra), Ciroma v Ali (1992) 2 NWLR (Pt.590) 317.
I have considered the article in question, from the heading to the body and within the con it was written, I am satisfied that the article is not only capable of conveying defamatory meaning, in the eyes of reasonable persons in this case but that it is also false particularly as it relates to the plaintiff.
As the authorities have shown the test is not what a man avid of scandal or a jester, or an opponent of the person allegedly defamed would read into the words complained of nor is it how any of such persons would react as a result of his reading the words. It is whether reasonable readers of Exhibit ‘1’ under the circumstances of the case were likely to understand the publication in a libelious sense. The approach and finding of the learned trial Judge that the words complained of in Exhibit ‘1’ are defamatory in their natural and ordinary meaning cannot be faulted.
As could be gleaned from the originating processes, statement of claim, see pages 40-75 of the record of appeal, the grouse of the Respondent, who was the plaintiff at the trial Court is firmly steeped in the listing or naming of the Respondent as one of the companies whose dealings with the National Institute for Policy and Strategic Studies, Vom, (NIPSS) were suspiciously awarded, executed and paid for in NIPSS in the Appellants’ Sunday Sun Newspaper publication of 19th October, 2008 at pages 4 and particularly page 8 of the said publication. Since the said acts of defamation were in permanent written form, the Respondent had the onus of proving/sustaining an action of libel.
He who asserts must prove by credible admissible evidence.
The plaintiff must satisfy the trial Court in line with the position espoused in Supreme Court case of V.M Iloabachie, Esq. v Benedict N. Iloabachie (2005) 5 SCNJ 284 @ 314. To sustain an action for libel, the plaintiff must prove that:
1) The publication was in writing,
2) The publication was false,
3) The false publication was made to a person apart from the plaintiff and the defendant,
4) The publication referred to the plaintiff and defamatory of the said plaintiff, and
5) The publication was made by the Defendant.
The Respondent called three witnesses at the trial Court, one of which was one Mr. Haroun Audu (PW2), who attested to the good reputation of the Respondent and who also stated that he was a long time patron of the Respondent. He attested to the fact that upon reading the Appellant’s article published in the Sunday Sun Newspaper of 19/10/2008 he was upset because same had the tendency to create a bad/negative impression in the minds of those that did not know the Respondent as much as he did. The publication was permanently written publication made by the Appellant, which was directed against the Respondent was found to be false.
The Appellant failed to controvert the evidence adduced by the Respondent. It is trite law that the opposing party that has failed to controvert the evidence of an opponent accepts same as the true fact or position of the suit. See Newbreed Org. Ltd v Erhomosele (2006) ALL FWLR (Pt.307) pages 1118 paras C-E, Ogunleye v Oni (1990) 2 NWLR (Pt.135) 745. The law is that what is admitted need no further proof. The publication of the Sunday Sun Newspaper dated the 19th October 2008, clearly listed the Respondent as a company which had fallen under the suspicious dealings with the National Institute of Policy and Strategic Studies thereby imputing their involvement in their observation contained on page 9 of the said publication Appellant did not deny the publication but only put up a defence of qualified privilege. Appellant claimed that the publication was done in public interest. The only witness (DW1) called by the Appellant testified under cross examination as follows:
“I am an employee of the 1st Defendant in this suit. Yes I was the author of the article subject of this suit. The article is on page 8. I don’t have any document to back up the observation I made in the article in question. I obtain the document I need from National Institute for Policy and Strategic Studies. I am a journalist for 15 years.”
Accordingly, I uphold the finding of the learned trial Judge reproduced (supra) that the words complained of in Exhibit 1 are defamatory in their natural and ordinary meaning and they refer to the respondent.
The next issue to resolve is whether the defence of qualified privilege is available to the Appellant. The defence of qualified privilege as re-stated in Iloabachie v Iloabachie (supra)
“is a defence to an untrue publication it can be claimed when the occasion of the publication is shown to be privileged.”
In the instant appeal, the defence of qualified privilege was not expressly pleaded by the Appellants at the trial Court but in paragraph 9 of their statement of defence they averred that the content of their publication was in the public interest. See pages 98 and 99 of the record of appeal. The appellants contended in their brief that when a Defendant raises a defence of qualified privilege as found by the trial Judge in the instant case, the burden shifts to the plaintiff to plead and prove express malice by mandatorily filing a reply to the statement of defence to give details of the express malice alleged against the Defendant. See Mainstreet Bank Ltd v Binna (supra). According to the Appellants the failure to file the reply to the Statement of Defence to give details of the express malice alleged against the Defendant is fatal to the case of the Respondent. See Sun Publishing Ltd v Aladinma Medicare Ltd (supra).
The Respondent on the other hand submitted that to every general rule there is an exception and in this instant appeal, there is a potent exception to the need to file a reply to a Statement of Defence where the defendants have pleaded the defence of qualified privilege especially as it concerns a newspaper outfit. The position stated by this Court in the case of African Newspapers (Nig.) Plc v Useni (supra) is relevant to the case at hand. It is necessary to note a portion of what was said at pages 496-487 thus:
“A Newspaper being a publishing outfit has 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 investment and is fairly accurate.”
It is evident from the case at hand that the Appellants did not investigate the information to confirm the correctness of same. If they had carried out their duty properly, the name of the Respondent would not have been included. The article published by the Appellants against the Respondent was clearly libelious and in my humble view it was a reckless publication. The pleadings and evidence clearly supports this fact. The case of African Newspapers (Nig.) Ltd v Useni (supra) supports the fact 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. See also Duyile & Anor v Ogunbayo & Sons Ltd (1988) NWLR (Pt.72) 6.
Even the answers given by PW1 under cross-examination support the contention of the Respondent that the publication was recklessly made. DW1 admitted under cross-examination that he had no documents to back up the observations made in the article in question. The learned trial Judge was therefore right to find as follows:
“I have studied the article in question and from the pleadings and the evidence from both sides, the article was written without any basis, it was written not based on any iota of belief in its truthfulness. It was written with malice which has clearly defeated the defence of qualified privilege raised by the defendants.”
There is no dispute as to the fact that the duty of the Appellants is enshrined under Section 22 of the 1999 Constitution (As Amended).
However, even if the publication is for public interest, the Appellants also have corresponding duty to ensure that the information is properly investigated and confirmed correct before publishing same. I am also satisfied that qualified privilege cannot avail the Appellants in the circumstances of this case. This issue is also resolved in favour of the Respondent.
The complaint of the Appellants under issue 3 is in respect of the damages awarded by the trial Court. The contention of the Appellants is that the award of damages is excessive.
The assessment of damages is within the discretion of the trial Judge who is expected to take into account all the circumstances of the case. The Court of Appeal is reluctant to interfere with assessments of damages save in cases where the trial Judge has applied wrong principle or is otherwise clearly wrong.
As a matter of general principle, an appellate Court would not interfere with an award of damages by a trial Court simply because faced with a similar situation and circumstances it would have awarded a different amount. An Appeal Court will however, interfere with an award by a trial Court where it is clearly shown:
(a) that the trial Court acted upon 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 Biodun Oduwole & Ors v Tam David West (2010) LPELR ? 2263 (SC), Williams v Daily Times (1990) 1 NWLR (Pt.124) 1 at 49 and Cross River State Newspaper Corporation v Oni & Ors (1995) 1 NWLR (Pt.371) 270.
Having regard to the facts and circumstances of this case, I am of the firm view that this is a proper case for this Court to interfere as the award made by the trial Court is excessive.
The law is trite that libel is actionable without proof of damages because it is in a written or permanent form. See Ogbonnaya v Mbalewe (2005) 1 NWLR (Pt.907) 252. The learned trial Judge in assessing damages considered the standing of the plaintiff in the business community, the conduct of the plaintiff, the nature of libel which was baseless and unprovoked, the fact that Sunday Sun Newspaper has wide circulation, absence of retraction and lack of remorse on the part of the Appellant.
It has to be noted that Respondent is a corporate body. In the case of Duyile & Anor v Ogunbayo & Sons Ltd (1988) NWLR (Pt.72) 601, (1988) NSCC 385 the Supreme Court clearly stated what should be considered while assessing the quantum of damages in relation to a corporate body. In the lead Judgment His Lordship Belgore, JSC stated thus:
“Unlike human being a corporate body suing for defamation, seeks only damages for pecuniary loss it can suffer and not for things only possible in personal feelings. It can sue for loss of profit, shortfall in turnover or anticipatory loss but not natural grief and distress, and not for social disadvantage. A company in law is person that can sue and be sued, but it can only do these through the agency of its directors who think for it and carry out its objectives. Accompany is a legal person but it is inanimate. It has got no personal feeling of grief or distress. Accompany can only be injured as to its earnings and not as to its feelings. It can be injured by libel and that injury must be related to its loss in money terms. Its loss of earning, loss of profits and loss of goodwill are matter that libel can bring as misfortune for the company. It is because of special attributes of accompany that in an action in defamation, a company does not need to prove special damage or even financial loss to recover damages for the injury to its reputation in the way of its trade or business.? See Lewis v Daily Telegraph (1964) A.C 262.
The Appellants were reckless in the extreme by publishing an information which was offensive to the Respondent and defamatory. Having regard to the facts and circumstances of the case the Respondent in my humble view is entitled to N3 Million Naira damages only and not N10 Million Naira as awarded by the lower court.
In the result, I will partly allow the appeal. Appeal allowed in part. The Judgment of the High Court of Justice Plateau State delivered on 15/07/2016 by Hon. Justice Y.G Dakwak in suit No. PLD/J84/2010 is hereby affirmed, with the exception of quantum of damages which is varied to N3 Million Naira Only. Parties to bear their respective costs.
TANI YUSUF HASSAN, J.C.A.: I had the advantage of a preview of the judgment just read by my learned brother, ADZIRA GANA MSHELIA, PJCA. I agree with the reasoning and conclusion reached. I agree that the appeal should be allowed in part. I abide by the order made therein.
BOLOUKUROMO MOSES UGO, J.C.A.: My learned brother ADZIRA GANA MSHELIA, J.C.A., (PJ) had earlier availed me his lead judgment and I agree with him on his reasoning and conclusion including the decision to interfere with the quantum of damages awarded by the trial Court to respondent. While it is Court settled that an appellate Court will not interfere with damages awarded by a lower Court simply because faced with a similar situation and circumstance it would have awarded a different amount, it will interfere where, among others, the amount awarded by the lower Court is outrageously high or ridiculously low or the amount was an entirely erroneous and unreasonable estimate having regard to the circumstances of the case: Guardian Newspapers Ltd. V. Ajeh(2011) 10 NWLR (Pt. 1256) 574 @ 603.
This case is a fairly uncommon one, in that it is not a human being with feelings whose reputation has been hurt by libel that sued, it is rather a company which does not have feelings to be hurt that sued. Yes, a company can sue for libel and be awarded damages, but the principle on which a company is so awarded damages is fairly different from that of a natural person.
My learned brother in his lead judgment cited the case of Duyile & Anor. v. Ogunbayo & Sons Ltd (1988) NWLR (Pt. 72) 601 where the apex Court citing the English case of Lewis v. Daily Telegraph Ltd (1964) A. C. 234 restated the principles for award of damages to a company in libel. Duyile & Anor. V. Ogunbayo & Sons Ltd is one of the very few reported cases of a libel action instituted by a company. It is normally the other way round with newspaper publishing companies as defendants, they being the butt of libel actions by the nature Of their business. Because of the rarity of this type of actions, I wish to cite the statement of the law on award of damages to a company in libel actions as put forth by Lord Morris of Borth-y-Gestin Lewis v. Daily Telegraph Ltd at p. 262. There His Lordship said
“Let me take first the case of the plaintiff company. A company cannot be injured in its feelings; it can only be injured in its pocket. Its reputation can be injured by a libel but that injury must sound in money. The injury need not necessarily be confined to loss Of income. Its goodwill may be injured. But in so far as the company establishes that the libel has, or has probably diminished its profits, I think that Gurley’s case is relevant. ”
“The position with an individual plaintiff is rather different. He may be entitled to very substantial damages although his income has not been affected by the libel.”
That is the position: proof of fiscal loss from the libel is a key factor in the award of damages in libel against a company. Fiscal loss from the loss was proved by the plaintiff company in Duyile v. Ogunbayo & Sons Ltd, but not so in this case hence the award of the huge amount of to the respondent company by the trial judge – in as much as I concede it is entitled to damages, for libel is actionable per se – was in my opinion on the outrageously high side and needed to be tinkered with.
It is for this little bit and the fuller reasons in the lead judgment of my learned brother MSHELIA, J.C.A., which I here adopt as mine that I also allow the appeal partly.
I abide the order as to costs as contained in the lead judgment.
Appearances:
J.U Pius, Esq.For Appellant(s)
J. J Danjuma with him, C.N Bitrus, Esq.For Respondent(s)
