BARRISTER EMMANUEL OBOH v. GUARDIAN NEWSPAPER LIMITED
(2018)LCN/12165(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of November, 2018
CA/L/1213/2015
RATIO
TORTS LAW: WHETHER WORDS ARE DEFAMATORY
“The principle that evolved from the above authorities and many more, is that what constitutes defamatory words does not lie and depend on the emotional, sentimental or personal good opinion a complainant has and hold of himself, but on the estimation of other people in the society who are ordinary and right thinking and not sectional, special or biased on any ground. It is the estimation of such ordinary and right thinking people of the society of a person that is relevant in the determination of whether words published of him are defamatory in the circumstances of the publication. In the case of Reg. Trustees of R. O. (AMORC) Nigeria v. Awoniyi (1994) 7 NWLR (355) 15, it was held that: ‘Words are not defamatory, however much they damage a man in the eyes of a section of the community, unless they also amount to disparagement of his reputation in the eyes of right-thinking men generally. To write or say of a man, something that will disparage him in the eyes of a particular section of the community but will not affect his reputation in the eyes of the average right-thinking man, is not actionable within the law of defamation…'” PER MOHAMMED LAWAL GARBA, J.C.A.
EVIDENCE: BURDEN OF PROOF
“This position of the law was the same in the previous Evidence Acts and was enunciated on in several judicial authorities, some of which are E. D. Tsokwa & Sons Ltd v. U. B. N. Ltd (1996) 10 NWLR (478) 281; Mandilas Ltd v. Ayanru (2000) 4 NWLR (653) 438; Dabo v. Abdullahi (2005) 7 NWLR (923) 181; Vanguard Media Ltd v. Olafisoye (2012) 18 NWLR (1321) 109. In addition, as provided for in Section 134 of the Evidence Act, the standard of proof required in civil matters or cases, is on the balance of probabilities or preponderance of evidence. Kaydee Ventures Ltd. v. Min., FCT. (2010) 7 NWLR (1192) 171; Ohochukwu v. A. G., Rivers State (2012) 6 NWLR (1295) 53; Purification Technique Nig. Ltd. v. Jubril (supra).” PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
BARRISTER EMMANUEL OBOH Appellant(s)
AND
GUARDIAN NEWSPAPER LIMITED Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment):
By Writ of Summons taken out of the Registry of the Lagos State High Court, Ikeja, by the Appellant against the Respondent and another person, he sought the following reliefs from that Court:
“a) N50,000,000 (fifty Million Naira) only as damages for libel including exemplary damages.
b) Perpetual injunction restraining the Defendants jointly and severally whether by themselves, privies, servant, or otherwise howsoever from further printing and publishing or causing to be published in any media including the Guardian Newspaper the said or similar words defamatory of the Claimant.”
The reliefs were predicated on the publication by the Respondent in its Tuesday; 1st February, 2011 Edition of Newspaper, of words which the Appellant said, were libelous or defamatory of him. The words, with the headline “Babalola explains refusal to sign NPL’s MOU”, are: “I was invited to Lagos on December 28, 2010 by the Acting Chairman of NPL, Sheu Gusua, to sign an MOU between NPL and MTN, but on getting to the office of the lawyer, the document I was asked to sign was between NPL and Total Promotion and this is contrary to the MTN that was announced as the winner of the bid. I therefore declined to sign the document.
He added that he became more suspicious of the proceedings at the office of Barrister Emmanuel Oboh because there was no MTN official present at the meeting.
He explained: “They tried to convince me to sign the document but I resisted and asked why no MTN official was there to sign since they were announced as the winner of the title rights.”
The Respondent and the other person denied the claims and after the settlement of pleadings, the matter went to trial at which the Appellant testified and called one other witness in support of the claims. The Respondent also called a witness and the other person testified to defend the claims.
In a judgement delivered at the end of the trial, on the 17th June, 2015, the High Court dismissed the Appellant’s claims on the grounds that he failed to prove that the words published were libelous of him and that the defence of qualified privilege availed the Respondent and the other person.
Being aggrieved by the judgement and in the exercise of the Constitutional right to do so, the Appellant brought this appeal vide the Notice of Appeal dated 11th but filed on 15th September 2015, on five (5) grounds.
In the Appellant’s brief filed on 8th January, 2016, three (3) Issues were formulated from the grounds for decision by the Court as follows: –
“1. Whether the trial judge was right in his decision that the words complained of were not defamatory of the Appellant. (Grounds 1 and 2)
2. Whether the defence of qualified privilege availed the Respondent as held by the trial judge. (Ground 3)
3. Whether the Appellant was not entitled to damages for any injury done to his reputation and his professional standing arising from the proved libel. (Ground 4).”
The issues were repeated, substantially, in the Respondent’s Brief filed on the 13th July 2016, deemed on the 15th October 2018, in reaction to which, the Appellant filed Reply brief on the 19th September 2016, also deemed on 15th October, 2018.
At paragraph 4.3.4 on page 19 of the Respondent’s brief, it is argued that the Appellant?s Issue 3 “does not in any way relate to the substance… or the particulars listed as a-d” under ground 4 of the Notice of Appeal. On the authority of Ayorinde v. Kuforiji (2007) 4 NWLR (1024) 303 @ 367, the ground 4 is liable to be deemed abandoned by the Appellant. There is no response to the point in the Appellant’s Reply brief and the legal consequence is that the Appellant concedes to it. See Okongwu v. NNPC (1989) 4 NWLR (115) 296; Ayalogu v. Agu (1998) 1 NWLR (532)) 129; Gigai v.Nanchang (2005) ALL FWLR (240) 41. The concession by the Appellant to the point does not however translate, automatically, to the success of the point, which would depend on its sustainability in law, which is, among other principles, that a ground of an appeal from which no issue was distilled for decision by the appellate Court, is deemed abandoned, Newswatch Comm. Ltd v. Atta (2000) 2 NWLR (646) 592; Nwankwo v. E. D. C. S. U. A. (2007) 5 NWLR (1027) 377; Imasuen v. Univ. of Benin (2010) 3 NWLR (1182) 591. Similarly, an issue raised in an appeal which is not related to, connected with and is not derivable from any of the grounds of the appeal, would be irrelevant to and so incompetent in the determination of the appeal.Adelekan v. Ecu-Line NV (2006) 12 NWLR (993) 33; Aduku v. FRN (2009) 9 NWLR (1146) 370; Emenike v. PDP (2012) 12 NWLR (1315) 556.
As seen earlier, the Appellant’s Issue 3 is indicated in the Appellant’s brief to have been distilled from ground 4 of the Notice of Appeal which is in the following terms: –
“GROUND FOUR:
The learned trial judge erred in law when he held that the Claimant/Appellant pleaded some facts which he failed to substantiate to enable him to damages, including exemplary damages, and thereby occasioned a miscarriage of justice.
Particulars of Error:
a. The claimant/Appellant pleaded and proved every fact necessary to entitle him to an award of damages including exemplary damages.
b. The Claimant/Appellant need not plead actual damages to succeed.
c. The offensive publication was a reckless attack on the professional practice and integrity of the Claimant/Appellant and ought to attract adequate damages including exemplary damages.
d. The Defendant/Respondent?s conduct against the Claimant/Appellant as legal practitioner was sufficiently outrageous to merit punishment.”
Without any difficulty, even a passing glance at the ground along its particulars (a-d) and the Issue 3 of the Appellant would readily show that they are not only related but that the issue is a question which is directly derivable from the complaint in ground 4. The issue is therefore one that is correctly and rightly distilled from the ground 4 of the Notice of Appeal, thereby rendering the argument in the Respondent’s brief on it, misconceived and liable to fail. It does and the Appellant’s Issue 3 is competent and valid for consideration in the appeal.
For being the specific complaints/questions raised by the Appellant against the decision by the High Court, his issues are apt for consideration in the determination of the appeal.
Issue 1: Appellant’s Submissions:
It is submitted by the Appellant that the test of whether words complained of in a libel case are libelous, is an objective one of how a reasonable man reading or hearing the words, would understand them in the circumstances in which they were made. Reference was made to Omole v. Abubakar (2002) FWLR (126) 904 @ 913; Amu v. Guardian Newspaper Ltd. (1999) 8 NWLR (616) 568; Sketch v. Ajagbemokeferi (1989) 1 NWLR (100) 678); Okafor v. Ikeanyi (1979) 3-4 SC, 99, for the position and it is argued that the words published by the Respondent are defamatory of the Appellant even in his professional standing or capacity. According to the Appellant, from the facts as to the natural and ordinary meaning as well as the innuendoes in the words, they command defamatory imputation to an ordinary man who will understand them to be saying that the “suspicious” transaction happened in his office.
Also, that the Appellant was one of the people who tried to convince, confuse or hoodwink Babalola to sign a contract, which he refused to sign because the winner of the bid had been fraudulently removed from the contract with the connivance of the Appellant who is solicitor to the Natural Premier League (NPL). The Court is urged to hold that the High Court erred in not applying the objective test in the determination of the defamatory nature of the words published of the Appellant by the Respondent. It is the contention of the Appellant that the High Court did not make a rational pronouncement on the question even though it made reference to authorities which appear to support that the words are defamatory of the Appellant. He said in applying the objective test, the circumstances that ought to weigh on the mind of the Court include:
(a) that Appellant was at the material time, the Solicitor to the NPL;
(b) that Babalola, was at the time, Acting Executive Secretary of the NPL, which portrayed the Appellant as a dishonest solicitor who wanted fraudulently, using his position, award the right due to MTN, to Total Promotion, by the use of the word “suspicious” which ordinarily means “questionable”, “distrustful”.
In further argument, the Appellant says he proved the innuendoes and was supported by the case of the 2nd Defendant who denied granting the interview to the Respondent or any other medium, in which the words were attributed to him. Cases, including Ekong v. Otop (2015) 20 WRN, 1 @ 18, were cited on when a statement can be said to be defamatory and it is submitted that the conclusion by the High Court that the words are not defamatory of the Appellant has no basis in fact or law since it did not give the reason for the decision as was required in judicial authorities which include State v. Atoki (2015) 15 WRN, 65 @ 114. Relying on Katto v. CBN (1999) 6 NWLR (607) 390 @ 407 and Ekong v. Otop (supra).
Appellant contends that the consideration of the defence of qualified privilege by the High Court is a clear pointer that defamation was proved as a condition precedent to the consideration of the defence.
The Court is urged to resolve the issue in Appellant?s favour.
Respondent’s Submissions:
The Submissions by the learned Counsel are that whether the words complained of by the Appellant are defamatory in their ordinary and natural meaning, was a question of fact to be proved by evidence, which the Appellant failed to prove and that the High Court was right to have so held after a consideration of the words without any strained or forced interpretation, citing Egbuna v. Amalgamated Press of Nig. Ltd (1967) ALL NLR, 27. He said that there was no reference to the Appellant in person, but to his office, in the words complained of and the Appellant did
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not adduce evidence that the publication lowered him in the estimation of right thinking members of the public since the evidence of the witness called by the Appellant shows that his estimation of the Appellant was not lowered by the words as he did not believe them. Among others, the cases of Iwueke v. IBC (2005) 17 NWLR (955) 477 @ 482-4 and Ebong v. Udoh (2014) -23447(CA) were referred to on the submission and the Court is urged to hold that the Appellant failed to call any 3rd party evidence to show the negative perception the words complained of had on him, lowering his reputation in the estimation of such 3rd party.
The Court is also urged to dismiss the appeal on this ground.
Resolution
By way of a restatement of the elementary position of the law in Sections 131 and 132 of the Evidence Act, 2011, the initial burden of proof of a fact or facts asserted and relied on by a party who desires any Court to give judgement as to any legal right or liability in a case, lies on that party as one who would fail if no evidence at all were given on either side in the case. This position of the law was the same in the previous Evidence Acts and was enunciated on in several judicial authorities, some of which are E. D. Tsokwa & Sons Ltd v. U. B. N. Ltd (1996) 10 NWLR (478) 281; Mandilas Ltd v. Ayanru (2000) 4 NWLR (653) 438; Dabo v. Abdullahi (2005) 7 NWLR (923) 181; Vanguard Media Ltd v. Olafisoye (2012) 18 NWLR (1321) 109. In addition, as provided for in Section 134 of the Evidence Act, the standard of proof required in civil matters or cases, is on the balance of probabilities or preponderance of evidence. Kaydee Ventures Ltd. v. Min., FCT. (2010) 7 NWLR (1192) 171; Ohochukwu v. A. G., Rivers State (2012) 6 NWLR (1295) 53; Purification Technique Nig. Ltd. v. Jubril (supra).
By the operation of the law, the Appellant who sought judgement from the High Court in the suit he filed against the Respondent had the legal duty and evidential burden of proving the assertions of facts he made in his pleadings on the balance of probability by way of credible and sufficient evidence if judgement was to be entered in his favour by that Court.
?In the famous case of Sketch v. Ajagbemokeferi (supra), a popular authority on libel/defamation cases, Oputa, JSC (of blessed memory) has stated that:
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“The tort of defamation arises because every person has a right to the protection of his good name, reputation and the estimation, in his stands in the society of his fellow citizens: SCOH v. Sampson (1882) 8 Q.B.D. @ 503. Anybody who publishes anything injuring that good name, reputation or estimation commits the tort of libel (if written) and slander (if oral). The onus on the plaintiff in an action for libel is to prove that the defendant:
(i) published in permanent form, a statement;
(ii) that the statement referred to him;
(iii) that the statement was defamatory of him in the sense that;
(iv) it lowered him in the estimation of right-thinking members of the society; or
(v) it exposed him to hatred, ridicule or contempt; or
(vi) it injured his reputation in his office, trade or profession; or
(vii) it injured his financial credit.
?In other words, an imputation to be defamatory will have to be proved to have been to the discredit of the Plaintiff. See also Alawiye v. Ogunsanya (2004) 4 NWLR (864) 486; Iloabachie v. Iloabachie(2005) 13 NWLR (943) 695; Asheik v. Media Trust Nig. Ltd (2010) 15 NWLR (1215) 114; Vanguard Media Ltd v. Olafisoye (supra).
Now, what were the facts pleaded by the Appellant and the evidence he adduced in order to discharge the burden of proving the above elements for the claim for defamation/libel against the Respondent?
The relevant facts are in paragraphs 6, 7, 8, 9, 15, 16, and 23 of the statement of claim dated and filed on the 25th March 2011, which are thus: –
“6. In their natural and ordinary meanings the said publication and banner heading meant and were understood to mean that:
a) The Claimant is not straight, honest and forthright.
b) That the integrity of the Claimant is questionable.
c) That the Claimant fraudulently attempted to exert undue influence on the 2nd Defendant.
d) That the Claimant attempted to trick the 2nd Defendant to sign a Memorandum of Understanding on behalf of the Nigeria Premier League against his wish.
e) The Claimant exerts undue influence on his Clients.
7. By way of innuendos, the words complained of in paragraph 4 above meant and were understood to mean that:
a) The Claimant is not straight, honest and forthright.
b) That the integrity of the Claimant is questionable.
c) That the Claimant fraudulently attempted to exert undue influence on the 2nd Defendant.
d) That the Claimant attempted to trick the 2nd Defendant to sign a Memorandum of Understanding on behalf of the Nigeria Premier League against his wish.
e) The Claimant exerts undue influence on his Clients.
8. In consequence, thereof, the Claimant?s reputation and professional integrity have been damaged and the Claimant has suffered considerable distress and embarrassment.
9. The Claimant avers that he was inundated with inquiries by professional colleagues, families, friends and the general public about the publication referred to in paragraph 4, whereupon he instructed his solicitor to write separate letters to the Defendants and that the two separate letters were dated 7th February, 2011.
15. The Claimant avers that the defamatory publication of the Defendants has caused him considerable damages as some of his friends and associates, including, but not limited to, Barrister Osondu Onwunmere personally told him that the said defamatory publications was a big surprise to him as he is aware that his Chambers closed for the Christmas and New Year celebrations from 22nd of December, 2010 to the 10th of January, 2011.
16. The Claimant avers that Barrister Osondu Onwunmere, as a result of the said publication, told him personally that he is disappointed with the said publication and that the said publication has eroded his trust and confidence in him.
23. Claimant avers further that the accusation and imputations of dishonesty, lack of forthrightness and integrity; intention to exert undue influence as well as tricking clients are unfounded and false but maliciously printed, caused to be printed and published by the Defendants in order to lower the Claimant in the estimation of right thinking members of the legal profession and members of the society generally and to ruin the Claimant?s goodwill, business and estimation in the sight of his professional colleague, family, friends, associates and the society in general.”
The evidence of the Appellant in support of the above facts is contained in the same numbered paragraphs of the Statement on Oath deposed by him on the same date with the Statement of Claim and a word to word, alphabet to alphabet, repetition of the pleadings. Paragraphs 3, 4, 5 and 6 of the Statement on Oath of CW2; Barrister Osondu Onwumere, No. 3, deposed to on the same 25th March, 2011 was also filed in support of the Appellant’s case.
Since the Appellant bore the initial evidential burden of proof, until he satisfactorily discharges it, there would be no case which the Respondent was to defend and so there will be no duty on the Court to consider any defence presented by the Respondent. See Aromire v. Awoyemi (1972) 2, SC, 1; Magaji v. Odofin (1978) 4 SC 234, @ 243-4; Agu v. Nnadi (2002) 18 NWLR (798) 103 @ 128.
In the case before the High Court, there was no dispute that the words complained of by the Appellant were in fact, published by the Respondent and that reference was made to the Appellant therein. Publication and reference to the Appellant therein are therefore not disputed by the parties and so do not require or need to be proved by the Appellant since proof presupposes the existence of a dispute of a fact between two (2) or more parties. Consequently, where facts are not in dispute, the parties have not joined issues on the acts which would call for and make proof necessary. Akibu v. Oduntan (1992) 2 NWLR (222) 210 @ 226-7; Nwakanma v. Mil. Adm.; Abia State (1995) 4 NWLR (388) 155; United Nig. Ins. Co. Ltd v. Universal Comm. & Ind. C. Ltd (1999) 3 NWLR (593) 17 @ 25.
Issue of dispute between the parties is, primarily, whether the words published by the Respondent which made reference to the Appellant are libelous or defamatory of the Appellant in their ordinary and natural meaning in the con and the circumstances of the publication. The evidence of the Appellant was that the publication has lowered his professional reputation and the estimation, the right thinking of members of the public including CW2, had of him before then. In his statement on oath CW2, in paragraph 6, said: –
“That I am disappointed with the said publication and the said publication has eroded my trust and confidence in the Claimant.”
Under cross-examination, CW2 stated that:
“When I read the publication I called him and asked if he has gone this low. He answered that it not true.”
The High Court, after making reference to judicial and other authorities as the law on the definition, proof and the test to be applied in ascertainment of defamation, in its judgement, asked the question:
“Do the alleged defamatory statements therefore disparage or lower the integrity of the Claimant in the estimation or (sic) right thinking members of the society?” At page 372 of the Record of Appeal. It went ahead to answer the question thus:
“Barrister Osundu Onwumere also further testified that when that he read the publication he called the Claimant to inform him and the Claimant told him all that is in the publication is not true. I must say that the Claimant nor witness have proofed or shown that statements contained in the publication have in any way lowered the integrity of the Claimant in the mind of the right thinking man.
Thus, I hold that the Claimant has not adduced sufficient evidence to show the Court that the innuendo pleaded in his statement of claim can be adduced from the publication and I hold that the words published by the 1st Defendant are not defamatory of his character. I therefore resolve this issue in favour of the Defendants and I hold that the words written and published by the Defendants in a publication dated the 1st of February 2011 to in the Guardian Newspaper is not capable of being libellous of the Claimant.”
It may be recalled that the Appellant has submitted that although the High Court had made reference to the authorities on the application of an objective test in the determination of whether the words were defamatory, it failed to arrive at a clear rational pronouncement which the authorities appear to support and that the finding that the words complained of are not defamatory, is erroneous.
Is the High Court wrong in law, on the finding that the Appellant did not prove that in their ordinary and natural meaning and the innuendoes ascribed to them by him, from the evidence before it, that the words complained of are defamatory of him in the con of the publication.
The law is firmly settled for a long time now, that the issue or question of whether words complained of in an action for libel or defamation are, in their natural and ordinary meaning, defamatory, is one of fact to be determined on the credible evidence placed before a Court by a Plaintiff or complainant. See Okafor v. Ikeanyi (1979) 3-4 SC, 65, (1979) ALL NLR (1979) LPELR-2418(SC) wherein, the apex Court, per Bello, JSC referred to with approval, the statement by Lord Reid on the test for determining the natural and ordinary meaning of words in such cases, in the case of Lewis v. Daily Telegraph Ltd (1964) AC, 234 @ 258. The learned English Law Lord has stated that:
“There is no doubt that in actions for libel, the question is what the words would convey to the ordinary man: it is not a question of construction in the legal sense. The ordinary man does not live in the ivory tower and is not inhibited by the 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 sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning “.
The test according to the authorities, is, whether under the circumstances in which the writing was published reasonable man to whom the publication was made would be 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.”
See also Sketch v. Ajagbemokeferi (supra); Okolo v. Midwest Newspaper Corp (1977) 1 SC, 20; Agbanelo v. UBN Ltd (2000) 4 SC (Pt. 1) 233; (2000) 7 NWLR (666) 534; Vanguard Media Ltd v. Olafisoye (supra).
The principle that evolved from the above authorities and many more, is that what constitutes defamatory words does not lie and depend on the emotional, sentimental or personal good opinion a complainant has and hold of himself, but on the estimation of other people in the society who are ordinary and right thinking and not sectional, special or biased on any ground. It is the estimation of such ordinary and right thinking people of the society of a person that is relevant in the determination of whether words published of him are defamatory in the circumstances of the publication. In the case of Reg. Trustees of R. O. (AMORC) Nigeria v. Awoniyi (1994) 7 NWLR (355) 15, it was held that:
“Words are not defamatory, however much they damage a man in the eyes of a section of the community, unless they also amount to disparagement of his reputation in the eyes of right-thinking men generally. To write or say of a man, something that will disparage him in the eyes of a particular section of the community but will not affect his reputation in the eyes of the average right-thinking man, is not actionable within the law of defamation.”
See also B.O.N. v. Adegoke (2007) LPELR-8471(CA); Punch Nig. Ltd v. Eyitene (2001) 17 NWLR (741) 228.
In order to prove that ordinary and right-thinking members of the society view and consider the words complained in an action for libel/defamation, as in fact, disparaging the reputation of a complainant such as to lower their estimation of him and expose him to hatred, contempt, ridicule or injure his reputation in his office, trade or profession, it is essential and vital that an ordinary and right thinking man, as described by Lord Reid in Lewis v. Daily Telegraph Ltd. (supra) is called to give evidence of his understanding of the words in the con and circumstances in which they were published of the complainant. See B.O.N. Ltd v. Adegoke (supra); Unity Bank, Plc v. Oluwafemi (2006) LPELR-9847(CA); Nsirim v. Nsirim (1990) 3 NWLR (138) 285) @ 289; Skye Bank, Plc v. Akinpelu (2010) 9 NWLR (1198) 179 @ 211; ZP Ind. v. Samotech (2007) 16 NWLR (1060) 315.
In the case of the Appellant, since his case is that the words he complains of have damaged his reputation and professional integrity as a lawyer and so lowered the estimation the ordinary and right-thinking members of society had of him before the publication, he needs the evidence of either his clients or people he dealt with in the course of his legal practice or other people he related with ordinarily in the society who read the words to show their understanding and inference they made after reading the words in relation to the Appellant. The Appellant needed the evidence of a third (3rd) party who would testify as to the opinion he had of the Appellant before the publication and has after reading it.
In the case of Iwueke v. IBC (supra) the law was re-stated by the apex Court that:
“For a plaintiff to succeed in libel, there must be proof, by evidence by a third party of the effect of the alleged publication on him i.e the reaction of a third party to the publication ? It is settled that what is important in a libel or defamation ‘is the reaction of a third party to the publication complained of. It is not what the plaintiff thinks about himself, rather what a third party thinks of the plaintiff as regards his reputation’. Therefore, a person’s reputation is not based on the good opinion he has of himself, but the estimation in which others hold him ”
See alsoReg. Trustee of Rosic. Order (AMORC) v. Awoniyi (supra); Okafor v. Ikeanyi (supra); Vanguard Media Ltd v. Olafisoye (supra) Ebong v. Udoh (2014) LPELR-23447 (CA); B. O.N. Ltd v. Adegoke (supra).
In that regard, the evidence of CW2 that he was disappointed with the said publication which has eroded his trust and confidence in the Appellant does not qualify as evidence of an ordinary client or right thinking member of the society with who the Appellant relates ordinarily, but as evidence of witness who shares common interest of a professional class with the Appellant.
In the words of Onnoghen, JSC (now CJN) in the case of Ologe v. New Africa Holdings Ltd (2013) LPELR-20181(SC):
“The reasonable man to be used by the judge in determining whether the words are defamatory in their ordinary meaning, are men of ordinary intelligence while the publication is to be considered as a whole.”
See also Dumbo v. Idugboe (supra); Dina v. New Nig. Newspapers Ltd (1986) 2 NWLR (22) 353; Lewis v. Daily Telegraph Ltd (supra).
The Appellant in paragraphs 13 and 14 of both the statement of claim and statement on oath averred and stated as follows:
“13. That legal practice in Nigeria thrives basically on goodwill, reputation and trust of the people as Legal Practitioners in Nigeria are not allowed to advertise.
14. That I labored over the years to build a reputation of honesty, forthrightness, trust and high integrity in my legal practice.”
The clear purport of these averments and depositions is that the reputation, trust and integrity allegedly damaged or disparaged by the publication, are in respect of the Appellant’s Legal practice and relation with his clients and other ordinary members of the society.
Considering the words in their ordinary and natural meanings, in the con in which they were published, as against any strained, forced, or unusual meaning; see Dumbo v. Idugboe (1983) 1 SCNJ 29 @ 48, an ordinary man and right thinking member of the society would not see them in a libelous sense and infer or impute any defamation on the part of the Appellant since only the meeting referred to in the publication was said to have been held in his office.
The Appellant was not specifically mentioned in his person as having participated in any way or manner in the meeting or had taken any part in the preparation or signing of the “MOU” in question. From the publication, it is not ordinarily apparent that the Appellant was a Solicitor to the Nigeria Premier League (NPL) or any of the parties to the meeting that was said to have been held in his office for an ordinary and right thinking man who knows the Appellant to believe that he was/is dishonest, not trust worthy and to lower his estimation of the Appellant’s reputation and integrity as a Legal Practitioner. imputed the alleged innuendoes in the words complained of because of his specialized training, professional knowledge and intelligence as a Legal Practitioner and not a person of ordinary intelligence in the society who knows and related to him before the publication; either professionally or communally.
The evidence of CW2, also a Legal Practitioner, does not support the innuendoes attributed to the words by the Appellant, in the con in which they were published since by paragraphs 3, 4 and 5 of his statement on oath, the witness had deposed that he knows the Appellant as a straight, honest and forthright Barrister and Solicitor of unquestionable integrity and was aware that the Appellant’s Chambers closed for the 2010 Christmas and 2011 New Year celebrations from 22nd December, 2010 to the 10th January, 2011. The depositions by CW2 were sworn to on 25th March, 2011, as stated earlier, almost two (2) months after the publication and reading by CW2 of the words complained of by the Appellant. If after reading the publication of the words complained of by the Appellant CW2 still swore in paragraph 3 of his statement on Oath that the Appellant is
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a straight, honest and forthright Barrister and Solicitor of unquestionable integrity, one may ask the question; where is the credible and believable evidence that the words in fact, lowered his estimation of the Appellant?s professional reputation and integrity.
The deposition by CW2 in paragraphs 3, 4 and 5 of his statement on Oath undoubtedly show that he did not believe that words as they related to the Appellant and so even after reading them, he apparently had no doubt about the professional reputation and integrity of the Appellant as a Barrister and Solicitor.
In this regard, the High Court is right when it stated and held in its judgement at page 375 of the Record of Appeal, that:
“In the instant case it is evidenced that the Claimant took offence with the content of Exhibit A wherein it was stated thus:
‘He added that he became more suspicious of the proceedings at the office of Barrister Emmanuel Oboh because there was no MTN official present at the meeting’. He explained: ‘They tried to convince me to sign the document but I resisted and asked why no MTN official was there to sign since they were
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announced as winner of the title rights’. He has complained that the words can be mean he is a person of questionable character, who is not honest and forthright, who has fraudulently attempted to exert undue influence on the 2nd Defendant. Nothing in the statement can however be said or imputed to mean any of the words alleged by the Claimant, and nothing in my opinion and to any reasonable thinking mind from the words can be said to mean that the Claimant is of questionable character. To my mind, the 1st Defendant was only trying to convey that the agreement was not signed and not that the Claimant is a person that is not honest.”
I should emphasize that it is not every word or words published of a person which is/are not true and so may be embarrassing, uncomplimentary and so annoying to the person that would constitute the tort of libel or defamation against him see Sketch v. Ajagbemokeferi (supra).
The law, as demonstrated above, is that in their ordinary and natural meaning in the con in which they are published, the words must be understood by an ordinary man of ordinary intelligence in the society, to be such as would disparage his reputation, integrity and trust and expose him to either hatred, contempt or ridicule. That is not the position of the words complained of by the Appellant, from the material evidence he placed before the High Court.
In the result, the High Court is right that the Appellant did not prove that the words are in fact and deed, defamatory/libelous of him to sustain the claims against the Respondent. I find no merit in the arguments of the Appellant on the issue and resolve it against him.
The resolution of issue 1 has effectively taken “the wind out of the sail” of the Appellant?s appeal and so overtaken the other issues on defence of qualified privilege and damages which have thereby been subsumed. In the absence of satisfactory proof of the tortful wrong of libel/defamation by the Appellant, the issue or question of defence thereto, would be non-sequitor and would not arise. In the case of Ekong v. Otop (supra) the position of the apex Court is that: –
“Where it is determined that the words complained of do not constitute the tort of defamation, it becomes unnecessary to consider any defence that may be available to the Defendant”.
In the earlier case of Katto v. CBN (1999) 5 SC (Pt. II) 390, (99) 6 NWLR (607) 390 @ 407, (99) LPELR-1677 (SC) (cited in the Appellant’s brief) the final Court in the land had laid down the law that:
“There is a duty on the trial Court to rule in the first instance as a matter of law whether the words in question are capable of carrying a defamatory meaning at all. If the words complained of are not so capable of defamatory meaning, the Court will rule accordingly and end the proceedings at that stage”. See Sketch v. Ajagbemokeferi (supra), Bashorun v. Ogunlewe (2001) 1 NWLR (640) 221.
In the appeal, merely because the High Court considered the defence raised by the Respondent in its pleadings does not necessarily mean that there was sufficient and satisfactorily proof that the words complained of were defamatory. As clearly indicated in the judgement, consideration and pronouncement on the defence, was in the alternative and in the event that its emphatic and unequivocal decision that the Appellant had failed to prove that the words were defamatory of him, was wrong.
Furthermore, the consideration of the defence by the High Court even after its finding of failure by the Appellant to prove the defamation alleged, was only in the discharge of the duty on its part to consider and make pronouncements on all issues placed before it in the pleadings and evidence of the parties in the case and not on the ground suggested by the Appellant. The law is known that a Court has the legal duty and judicial obligation to consider and make pronouncements on all the issues properly raised and placed before it in a case by the parties as was stated and re-stated in legion of judicial authorities which include Akpan v. Bolo (2010) 17 NWLR (1223) 421 (SC); Ojoh v. Kamalu (2006) ALLFWLR (297) 978 (SC); Cookey v. Fombo (2005) 5 SC (Pt. II) 102; Adebayo v. Attorney General, Ogun State (2008) 4 MJSC, 80; Okonji v Njokanma (1991) 4 NWLR (202) 131 (SC), Gambari v Mahmud (2010) 3 NWLR (1181) 278 (CA).
In the premises of the law, the High Court only acted dutifully in considering the defence raised by the Respondent in both pleadings and evidence as an issue properly placed before it, after the finding that the Appellant had failed to prove defamation.
In addition, the law is that where there is no wrong, there can be no damages since damages are a form of financial reward for a plaintiff who has suffered a wrong caused or precipated by the wrongful act or conduct of a defendant which breaches his legal right. See ADENIRAN V. Alao (1992) 2 NWLR (223) 550 @ 372, Ijebu-Ode Local Government v. Balogun (1991) 1 SCNJ, 1.
In the final result, with the resolution of the Appellant’s issue 1 against him, the duty of the Court to proceed with the consideration of the other issues in the appeal abates.
The appeal is dismissed for lacking in merit and consequently, the judgement by the High Court delivered on the 17th June, 2015 in the Appellant’s Suit No: ID/350/2015, is hereby affirmed in its entirety.
Parties to bear their respective costs of prosecuting the appeal.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the succinct judgment prepared by my learned brother, Mohammed Lawal Garba, J.C.A., (Hon. P.J.)
JAMILU YAMMAMA TUKUR, J.C.A.: My lord MOHAMMED LAWAL GARBA J.C.A., afforded me the opportunity of reading before today the lead judgment just delivered.
I agree that the appeal should be dismissed. I dismissed same and abide by the consequential orders made therein.
Appearances:
Appellant in person For Appellant(s)
G. E. Ojonah For Respondent(s)
