HIGH CHIEF BASHIRU S. OLAJOGUN (OSOLO) & ORS v. CHIEF JIMOH OSHO AGORO (2014)

HIGH CHIEF BASHIRU S. OLAJOGUN (OSOLO) & ORS v. CHIEF JIMOH OSHO AGORO

(2014)LCN/7399(CA)

In The Court of Appeal of Nigeria

On Friday, the 11th day of July, 2014

CA/I/290/2009

RATIO

PRACTICE AND PROCEDURE: PLEADINGS; WHETHER PARTIES ARE BOUND BY THEIR PLEADINGS AND THE AIM OF PLEADINGS

TORT: TORT OF DEFAMATION; WHEN IS A STATEMENT SAID TO BE DEFAMATORY

The question here is whether or not the petition is defamatory of the respondent. There is generally no single comprehensive definition of the tort of defamatory language. A statement is defamatory if it tends:
(a) To lower the plaintiff in the estimation of right thinking member of society generally or to expose him to hatred, contempt or ridicule or to cause other persons to shun or avoid him, or to discredit him in his office, trade or profession or to injure his financial credit.
See the following case Labati v. Badmus (2007) 1 NWLR (pt. 1014) 199, NITEL v. Tugbiyele (2005) 3 NWLR (pt. 912) 334, Edem v. Orpheo (Nig.) Ltd. (2003 13 NWLR (pt. 838) 537.
Let me venture to bring out some of the instances courts have pronounced on:
(a) That a medical practitioner has a “fake” degree and that he exploited the public.
(b) That a public officer was corrupt or had been arrested on suspicious corrupt practices, or
(c) That a legal practitioner had defrauded his client or
(d) That a University lecturer had committed adultery with a female student or
(e) That the plaintiff had stolen the defendants coco-yams or
(f) That the plaintiff’s house was to be sold by public auction to satisfy a mortgage debt. per. MUDASHIRU N. ONIYANGI, J.C.A.

TORT: LIBEL; WHAT IS LIBEL AND WHETHER LIBEL IS ACTIONABLE PER SE

The case at hand is that of libel. Libel is defamation in writing or some other permanent form such as a tape or video recording, radio or television. Broadcast and computer generated transmission are also in the category of libel. Libel is actionable per se, that is without the need to proof special or actual damage – see the case of Labati v. Badmus (2007) 1 NWLR (PT. 1014) 199. per. MUDASHIRU N. ONIYANGI, J.C.A.

TORT: LIBEL AND DEFAMATION; WHETHER DAMAGES THAT FLOW FROM LIBEL AND DEFAMATION IS ACTIONABLE PER SE WITHOUT PROOF OF INJURY AND WHAT THE COURT MUST TAKE INTO ACCOUNT IN ASSESSING DAMAGES IN AN ACTION FOR DEFAMATION

The law presumes that damages flow from libel and defamation is actionable per se without proof of injury. See Gidendo v. Chief Imam Ado-Odo (1962) NNLR 122. In assessing damages in an action for defamation of a person by a publication, the court must take into account the following factors, recklessness of publication the nature of the libel whether it was news or opinion, plaintiff standing in the society failure of defendant from the time the libel was published down to the moment of the court’s verdict; any anticipatory preliminary loss or social disadvantage and natural injury to the feeling of the plaintiff, the decline in the publishing power of the plaintiff etc. per. MUDASHIRU N. ONIYANGI, J.C.A.

JUSTICES

M. B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

MUDASHIRU N. ONIYANGI Justice of The Court of Appeal of Nigeria

Between

1. HIGH CHIEF BASHIRU S. OLAJOGUN (OSOLO)
2. EVANG. OYEWOLE ADENIJI OLALUDE
3. CHIEF HARUNA MALOMO OLAJOGUN
4. PRINCE BASHIRU OLADELE ADENIJI OLALUDE
5. CHIEF ISHOLA MORONFOLU (ODOFIN)
6. CHIEF SULAIMON FABOLUDE
7. CHIEF (MRS) ADUNNI
8. CHIEF KEHINDE ODUNTAN
9. CHIEF KOLAWOLE ORIYOMI
10. CHIEF JAMES SHOWEMIMO
11. CHIEF JIMOH BANKOLE
12. MR. ADISA ONIFADE Appellant(s)

AND

CHIEF JIMOH OSHO AGORO Respondent(s)

MUDASHIRU N. ONIYANGI, J.C.A. (Delivering the Leading Judgment): At the High Court of Ogun State the plaintiff who is the Respondent in this appeal claimed against the defendants/appellants jointly and severally as follows:
(a) The sum of N50,000,000.00 (Fifty Million Naira) being aggravated and exemplary damages for libel published of and concerning the plaintiff by the defendants in the letter to Chief (Mrs) Salmot Badiru, the Deputy Governor of Ogun State and to other persons dated the 28th day of September, 2004.
(b) An order of perpetual injunction restraining the defendants their agents, servants and privies from further publishing the libel complained of or any similar libel or other libelous matter whatsoever of and concerning the plaintiffs.
Pleadings were exchanged and settled.

The summary of the plaintiffs’ case as can be garnered from the record is that he was installed as Aare of Gan-un and that his installation was published in the Daily Sketch of 20th September 1977 (See Exhibit “A”) Amongst those who congratulated him on his appointment is Chief Oladipo, the then Chairman of Ifo Local Government, the letter was admitted and marked Exhibit “B”. By virtue of this appointment he receives monthly stipend from the local government. The Gan-un community sent invitation to him whenever there was any important event in the community. He tendered in evidence some of these letters of invitation. They are marked as Exhibit “C1”. According to him, he filed the suit because of the malicious petition written against him by the appellants to the Deputy Governor of the State, and copied to the State Commissioner of Police, himself and so many others. Those copied, acknowledged receipt (See Exhibit “D”). He said he was called a thief, a 419 man, that he collected money from the Local Government. He added that the first appellant and himself had a disagreement and it was resolved.

The reason for the soiled relationship was because the first appellant was interested in the Baaleship stool of the town and he believed the respondent is also interested in the Baaleship stool. He testified to his standing in the community. He occupied several positions, of honour and amongst which are:
(a) One time president of Ifo Customary Court (See Exhibit “E1” and “E2”)
(b) A state delegate of the Social Democratic Party (SDP)
(c) Involved in Boundary settlement dispute “Exhibit “G”

The Local Government also sent him for a Leadership Training Course at Iperu. His Lawyer wrote to the signatories of the petition. See Exhibit (I). The local government, Obas in the community tried to settle the issue by asking the Appellants to withdraw the petition and apologise but they refused. He said people kept on asking him why he did what he was alleged to have done. He denied the allegations in the petition. He took the matter to court. In the end the court below concluded as follows:
“… I take into account the fact that the plaintiff hold several position of honour in his community, he is a politician, a businessman and the fact that the defamatory letter was widely circulated to highly placed state government and local government officials and even the commissioner of police and traditional ruler. I therefore award the sum of N6 million against all the defendants in favour of the plaintiff.
The second prayer of the plaintiff is an order of perpetual injunction restraining the defendant, their agents, servants or privies from further publishing the libel complained of or any similar libel or other libelous matters whatsoever of and concerning the plaintiff. The circumstances of this case calls that the order be made.
An order of perpetual injunction is hereby made against the defendants, their agents, servants and privies from further publishing the libel complained of or any similar libel whatsoever of and concerning the plaintiff.
I award the sum of N10, 000.00 cost to the plaintiff”

Against the foregoing findings and order hence this appeal. The amended notice of appeal dated 11th day of February and filed on 14/2/2011 contains the following grounds:
Ground One
The learned trial judge erred in law when she admitted Exhibit “D” (a photocopy) when the law requires the plaintiff to produce and tender the original letter claimed to have been written against the plaintiff and addressed to the deputy governor of Ogun State, Alhaja Salimot Badru.
Ground Two
The learned trial judge erred in law when she granted the claim of the plaintiff when there is no evidence that he had suffered any damage loss of integrity, injury, disrepute or loss of respect or esteem from the public.
Ground Three
The learned trial judge erred in law when she held that Exhibit “D” is the copy served on plaintiff by the defendant when there is no such record.
Ground Four
The learned trial judge erred in law when she granted the plaintiff the sum of N6, 000,000.00 (Six Million Naira only) which is apparently excessive.
Ground Five
The learned trial court misdirected itself when it held that there is no justification for the defamatory words used by the defendants against the plaintiff when there is evidence led before the honourable court by the defendant which justifies the content of Exhibit “D”.
Ground Six
The learned trial judge erred in law when she held that from all the documents tendered by the plaintiff, he was addressed as the Aare of Gan-un and not as Oba or Baale of Gan-un whereas the plaintiff was referred to as BALE in Exhibit “C” and “C1”.
Ground Seven
The learned trial judge erred in law when she held that the defendants have not been able to justify the precise imputation complained of when there is abundant evidence to establish the said imputation.
Ground Eight
The learned trial judge erred in law in granting the claim of plaintiff when the plaintiff has failed to discharge the burden placed on him by the law to succeed in his claim.
Ground Nine
The learned trial judge failed to consider or give adequate consideration to the plea of fair comment and or justification when there was abundant evidence place before the trial court to support both plea or defence.

The appellant brief of argument dated 12th February 2011 was filed on 14th February 2011. The appellant condensed the following issues for determination
(a) Whether Exhibit D is admissible having regard to the respondents pleading and evidence led before the lower court? (Grounds 1 and 2).
(b) Whether the respondent had discharged the burden placed on him by the law to entitle him to the reliefs sought in this case (Grounds 2, 5, 7 and 9).
(c) Whether the trial court was right in rejecting plea of justification and fair comment relied upon by the appellant in this case? (Grounds 5, 8 and 10).
(d) Whether the sum of N6,000,000.00 (Six Million Naira) granted by the lower court was not excessive and in contravention of the principle laid down by the court? (Ground 4)

Reacting to the foregoing the respondent vide the order of this court filed his amended brief dated 25th day of February 2011 but filed on 24th March 2014. Therein he formulated the following issues for determination:
(1) Whether Exhibit D (the libel in question) was properly admitted in evidence and the learned trial judge was right in relying on the same in her judgment (Grounds 1 and 3).
(2) Whether the learned trial judge rightly held that Exhibit D was defamatory of the respondent and that (the respondent was consequently entitled to the reliefs sought in this case. (Grounds 2 and 8)
(3) Whether the trial court was right to hold that the defences of justification and fair comment do not avail the appellants on the circumstance of this case (Grounds 5, 7 and 9) and
(4) Was the sum of N6 million awarded by the learned trial judge out of a total sum of N50,000.00 claimed by the respondent as aggravated and exemplary damages for libel exercise in the circumstance of this case. (Ground 4).

The appellant filed a reply brief to the brief by the respondent dated 6th April 2011 and deemed filed vide the order of this court on 5th March 2012.
It is worthy of note that the respondent in paragraph 2.00 of his amended brief dated 25th February 2011 raised a preliminary objection challenging the competence of grounds 1, 2, 3, 5, 6, 7, 8 and of the amended notice of appeal and issues formulated by the appellants from those grounds. The response to the preliminary objection by the appellant is contained in the reply brief of the appellant dated 6th April 2011.

Not this alone the respondent also filed a cross appeal. Based on that, he filed a supplementary record entered on the 14th day of October 2009. He filed his brief of argument in that respect dated 14/10/2009 and filed on the same date. The appellant respondent counsel filed cross respondent brief of argument filed on 23/11/09 and deemed filed on 5th March 2012. The Counsel adopted their respective brief while the appellant urged the court to allow the appeal and dismiss the cross-petition, the respondent urged the court to dismiss the appeal and allow his cross-appeal.

In the light of the foregoing I would treat first the notice of preliminary objection by the respondent and there after attend to the main appeal and then the cross appeal.

NOTICE OF PRELIMINARY OBJECTION
The argument of the respondent here is that the particulars furnished in Ground (1) of the amended notice of appeal are unrelated to the complaint in the said ground. Ground (1) complains of inadmissibility of Exhibit D (photocopy of the libel in this case).
“When the law requires the plaintiff to produce and tender the original letter…”
The relevant law was not stated in the particular. Rather the particulars are at large and consist of independent complaint e.g. particular (d) which complains of distribution of the libel cannot conveniently be said to form part of Ground (1) which complains of inadmissibility of the document. The particulars of a ground must be in tandem with it. Where the particular or any part of thereof are at cross purposes with the ground as in this case, it becomes defective and liable to be struck out pursuant to Order 6 Rule 3 of the Court of Appeal Rules 2007. Because the court will not carry out a surgical procedure of exercise of bad particulars from the ground. He relied on Olufeagba v. Abdul Raheem (2009) 18 NWLR (pt. 1173) 384 at 462 para F, ASR Co. Ltd. v. O.O. Biosah & Co. Ltd. (1997) 11 NWLR (pt. 527) 145 at 156 para H; Orakwute v. Umolu (1998) 7 NWLR (pt. 557) 266 at 274 para G.

He added, that issue of admissibility of a document is a complaint which is interlocutory in nature and ought to be laid before the appellate court with the leave of the court below or this court sought and obtained. He cited Order 25 (2) (a) of the Court of Appeal Act. Since no leave was obtained the ground he submits is incompetent and is liable to be struck out. At the hearing of this appeal the court asked the respondent applicant whether his notice of preliminary objection is competent. He was rattled by the question and sought for an adjournment so as to put his house in order. His request was turned down, he courageously decided to proceed with the appeal.

Looking at this notice of preliminary objection which he argued in the brief of argument to the main appeal, it is bewitched with lack of foundation. That is to say that the objector did not file any application which should be the vehicle through which his missile would have been launched. See the Provision of Order 7 Rules 1 and 2 of the Rule of the Court of Appeal Rules 2011.

There is nothing on record to show that the respondent complied with this rule. Rules of court are meant to be obeyed. This assists in regulating the conduct of cases in courts. As it is, this preliminary objection has no tripod upon which it would stand. It is therefore struck out for non compliance with the rules and which renders it incompetent.

I would now consider the main appeal. A quick look at the four issues distilled by the appellant can be put into two compartments. The first classification is the compartment housing issues 1, 2 and 3 and the other one is issue number 4. Issues 1, 2 and 3 to my understanding are challenging the decision of the court admitting Exhibit “D” in evidence, whether the respondent discharged the burden of prove placed on him and whether the trial court was right in rejecting the plea of justification and fair comment.

The contention of the appellant on Exhibit “D” is that it is a photocopy and ought not to be admitted by the trial court as Exhibit. The contention of the respondent is that it is the copy served on him that he tendered as exhibit.
The question therefore is to assertion what form of the petition was served on the respondent.

In his statement of claim contained on pages 3 to 8 of the record the respondent reproduced the content of the petition written against him by the appellants. In paragraph 5 he averred as follows:
“On 28th September 2004 the defendant falsely and maliciously wrote and published or caused to be published of and concerning the plaintiff in the form of a type written letter to Chief (Mrs) Salmot Badru the Deputy Governor of Ogun State and to other persons the following disparaging and defamatory words, to wit:
“We the undersigned, feel seriously constrained and compelled to put forward this petition at this very material time against one Jimoh Osho, a self acclaimed and unlawful Baale of Gan-un town in Ifo Local Government Area. A Baale which does not even exist in the town several years past, thus this man in question is a dubious and questionable personage to wit, committing and reveling in illegality and impersonation, Jimoh Osho Agoro should be brought to book because his criminal action is amount to circumvention and jettison the law of the land, jaundiced and tendentious…”

In paragraph six of the statement of claim, the plaintiff respondent pleaded thus:
Para 6:
“The defendants served a copy of the said letter on the plaintiff and the following persons all of who acknowledged service on the plaintiff’s copy which should be relied upon at the trial ….”

In the light of the foregoing, it is clear that the plaintiff respondent was only served with a copy of the petition. That averment gave proper notice on the plaintiff appellant what form of the petition was served on him. In a very clear term he said he was served with a copy. He has tendered in court the copy served on him. The object of pleadings is to compel parties to define accurately and precisely the issue upon which the case between them is to be contested to avoid element of surprise by either party. By paragraph six of the statement of claim the respondent has observed strictly the rule of pleading. See Oshodi v. Eyifunmi (2000) 7 SC (pt. 11) 145.

It is trite that parties are bound by their pleadings. See Adeleke v. Iyanda (2001) 13 NWLR (pt. 729) 1. Also the aim of pleading is to give notice of case of one party to the other and which would enable the other party to prepare his evidence and argument upon issue raised. See Bunge v. Gov. Rivers State (2006) 12 NWLR (pt. 995) page 573. That averment constitutes notice and clearly state the form of the petition served on the respondent. He cannot be made to give what he was not given nor have. The learned trial judge was right to admit the copy of the petition tendered by the respondent. I accordingly hold that Exhibit “D” is admissible.

Issue B
Whether the respondent had discharged the burden placed on him by the law to entitle him to the relief sought in this case.
The contention of the appellant is that the respondent had failed woefully to satisfy the requirement of the law to entitle him to the reliefs sought. In other words, the respondent has not discharged the burden placed on him by the law when it involves libel to the effect that a member of the public must be called to testify about the status of the plaintiff before the alleged libel and his status after the publication. They cited Unity Bank Plc v. Abiola (2009) All FWLR (pt. 452) pg. 1082 at para C-G.

The respondent submits that the contention of the appellant on the case cited is misconceived. He added that to determine whether a publication is defamatory, the applicable is as stated by the Supreme Court in Dumbo v. Idugboe (1983) 1 SCNLR 29. He said it is the duty of the court to apply the reasonable man’s test whether the words are capable of defamatory meaning in the mind of reasonable people in the circumstances of this particular case. Looking at Exhibit. D, he said a reasonable person would find Exhibit D defamatory because it portrays the respondent as a fraudster, thief, criminal, 419 and impersonator and a dupe who is collecting illegal salary which he is not entitled to. He said the evidence of PW2 is that of a reasonable person. He testified on the qualification of the plaintiff/respondent. He added that reputation or integrity is an intangible asset the loss of which can only be established by inference from averred or proved facts. He cited the case of Ofoegbu v. Onwuka (2008) All FWLR (pt. 412) 1141 at 1161 where Adekeye JCA (as she then was) said:
“What is important in a libel or defamation is the reaction of a third party to the publication complained of.”

The reaction here he submits was the request for apology. The request in the instant case by the third parties herein suggests that they felt or had an impression that the appellant have spoiled the respondent’s name and ought to show remorse.

Words which imputes to the respondent the commission of crime like theft, 419, impersonation and fraud as in the present case for which he can be made to suffer severe sanctions, embarrassment and hardship and which words were copied to the commissioner of police for prosecution are actionable without proof of special damage. He referred to Ukachukwu v. Uzodinma (2007) 9 NWLR (pt. 1038) 157 at 191, F.B.N. Plc. V. Aboko (2007) 1 NWLR (pt. 1014) 129 at 150.
He urged the court to hold that the learned trial judge was right in granting the relief sought by the respondent having found Exhibit D to be defamatory.

The learned trial judge reproduced the petition in question (Exhibit D) – See page 164 of the records. Let me put on record here that the appellants did not deny the authorship of the petition. (Exhibit D) They did not deny also that it was written against the respondent. They equally did not deny that it was sent to the deputy governor, commissioner of police, chairman of the local government, traditional rulers and the like. At page 167 of the record the trial court said:
“There is no doubt that the defendant published Exhibit “D” in a paramount form, that Exhibit “D” referred to the plaintiff and that it conveyed a defamatory meaning to those whom it was published and that the statement was defamatory of the plaintiff as the plaintiff gave evidence that people asked him why he did what he was alleged to have done. More over in the case of Labati v. Badmus (supra) the court held that:
“Publication is the live wire of an action in libel. And the sting in an action for libel is the publication of an offensive article to a third party. It is actionable per se once proved. It is therefore my conclusion on issue 2 that Exhibit “D” is defamatory of the plaintiff’s character.”
(See page 167 of the record)

The evidence of PW1, the plaintiff respondent and his said witness, coupled with the fact that the local government chairman invited both the plaintiff respondent and the appellant with a view of making peace between them is an eloquent testimony to the fact that the meeting was convened as a result of the publication in Exhibit “D”. The words used in Exhibit “D” connotes the meaning that speaks for itself. I have no hesitation in my mind in agreeing with the learned trial judge that Exhibit D is defamatory of the respondent.

Where words in their natural meaning are defamatory plaintiff need prove nothing more than publication. Onus would then lie on the defendant to prove circumstances of use and qualified priviledge.

In this case the appellant said the following about the respondent in Exhibit “D” (See from page 4 of the petition Exhibit “D”
“…. Your Excellency ma, as we enunciated and honestly and sincerely alleged in this letter, this petition, however is well motivated as part of effort to expose frauster(s) and corrupt elements in our society for the reason that fraud and corruption are pervasive and indeed, endemic in our society. All these social and societal vices and storms have to be nipped in the bud, Jimoh Osho Agoro should be a scapegoat and of course, sacrificial lamb for others to learn—
That your Excellency ma, may we formally now advise you to take this development up officially with the chairman if Ifo Local Government council, the commissioner of police, Ogun State, the chairman of Egba traditional council, the Olota of Ota, the Olofin of Isheri and all the appropriate council officers in connection to this. This we feel is necessary because of future probable developments. This man, Jimoh Osho Agoro and his accomplices should be spotted out and made known to the law enforcement agents. He Jimoh Osho should be made to face the wrath of law of the land accordingly.
That this foolish, criminal and illegal action of Jimoh Osho Agoro is retrogressive, travel and wittingly contributing to the advanced fraud known as 419 and corruption—”
Putting all the foregoing together it is clear that the publication was publicized and communicated to various bodies. I find no reason to disturb the finding of the court on this issue number two and I answer the question in the affirmative.

The plea of justification by the appellant in the circumstance of the fact of this case is untenable, weighing the words used and the allegations levied against the respondent. The reason behind this publication is simply because the plaintiffs are not happy about the title given to the respondent, the payment of allowance to him by the local government, the issue of sale of land and his chairmanship of an organization. In my view, the appellant would have approached the court for a declaratory order against the stool occupied by the respondent rather than engage in such petition wherein the respondent is described as a 419, and a fraud star.
Good name in man or woman is the immediate fuel of their soul. Who steals my pause steals thrash, —– But who flinches from me my good name robs me of that which not enriches him. And makes me poor indeed.
I therefore in view of the foregoing answer issue number three in the affirmative. That is that the learned judge was right in rejecting the plea of justification and fair comment relied upon by the appellant.

Lastly is the question wherein the sum of N6,000,000.00 (Six Million Naira only) granted by the lower court was excessive and in contravention of the principle laid down by the court. This forms the bases of issue number 4.

The law presumes that damages flow from libel and defamation is actionable per se without proof of injury. See Gidendo v. Chief Imam Ado-Odo (1962) NNLR 122.

In assessing damages in an action for defamation of a person by a publication, the court must take into account the following factors, recklessness of publication the nature of the libel whether it was news or opinion, plaintiff standing in the society failure of defendant from the time the libel was published down to the moment of the court’s verdict; any anticipatory preliminary loss or social disadvantage and natural injury to the feeling of the plaintiff, the decline in the publishing power of the plaintiff etc.

The appellants in their petition as I said before described the respondent as dubious, fraud star, 419, etc. the totality of the testimony of PW1 to 5 have no legal justification to warrant all those heavy and damaging words used against the respondent. I agree with the trial court that the appellants have not justified the imputation complained of rather the respondent has established his claim for libel. And he is entitled to damages while I answer this issue in the negative I hold that the N6,000,000.00 damages is not excessive nor in contravention of the principles laid down by the court.

The sum total of the foregoing is that the appeal lacks merit and is hereby refused and dismissed. I affirm the judgment of the Ogun State High Court delivered by Hon. Justice A.O. Asenuga on 14th day of May 2009.
Nest is the cross appeal by the respondent. The supplementary record for this cross appeal was entered on the 14th day of October 2009.
The notice of the cross appeal is dated 31st day of July 2009 and filed same date.

The ground of appeal is:-
Ground of Appeal
The learned trial judge erred in law in awarding a paltry sum of N6 million out of a total sum of N50 million claimed by the appellants as aggravated and exemplary damages for libel and thereby occasioned a miscarriage of justice in the circumstances of this case.

Particulars of Error
(1) The respondents relied on the defences of justification and fair comment which means that they intentionally published the libel.
(2) The defences were found not to have been proved by the court.
(3) The court equally found the libel malicious and to have been published with a guilty knowledge as to merit punishment.
(4) Respondent failed to apologize or show remorse trusting in their ability to pay the total sum claimed as holders of high chieftaincy title.
(5) The court neglected to consider and apply all the principles formed by it to be governing the award of aggravated and exemplary damage in the circumstance of this case.

Based on the foregoing grounds the respondent cross petitioner is claiming as follows:
“To vary the N6 million damages awarded by the lower court by awarding N50 million claimed by the appellant as aggravated and exemplary damages for libel.”

The brief of argument in respect of this cross appeal is dated 14th October 2009 and filed same date. The lone issue for determination is:
Whether the trial court was right to have awarded a paltry sum of N6 million out of the N50 million claimed by the cross appellant as aggravated and exemplary damages for libel in the circumstance of this case.

The petitioner respondent filed his cross reply brief of argument. It is dated 20th November 2009 and filed on 23/11/2009. It is deemed filed on 5th day of March 2012. He also distilled one issue for determination.
The issue is:
Whether award of N6 million in this case by the trial court is justified in law when the claim for exemplary and aggravated damages by the plaintiff is not supported by the evidence nor proved?

Both counsel adopted their respective brief. The cross appeal is centered on the sufficiency or otherwise of the award of N6,000,000.00 for aggravated and exemplary damages. The answer to this question informed the respective issues formulated. The issues therefore are designed to achieve result. Adopting any of the issues for the determination of this cross appeal would lead to and achieve some purpose either in the negative or in the affirmative. I would therefore adopt the issue formulated by the cross petitioner.

I have considered the argument on both sides. Equally I have visited the consideration, finding and conclusion of the learned trial judge in his judgment dated 14/05/2009. The damages we are considering here is general damages. General damages are that which the law implies or presumes to have occurred from the wrong complained of. They are presumed to flow from the immediate, direct and proximate result of the wrong complained of. All the court need do in exercising its discretion is to calculate what sum of money will be reasonable in the circumstance of the case. See the cases of Akanmu v. Olugbode (2001) 13 WRN 132 at 139, Ijebu-Ode Local Government v. Adedeji Balogun & Co. (1991) 1 NWLR (pt. 166) 136 and Garuba v. Kur (2003) 11 NWLR (pt. 831) 280.

In the case at hand the learned trial judge on page 170 to 172 meticulously considered the available evidence from both sides and after putting some on an imaginary scale came to the conclusion of awarding N6,000,000.00 against the appellant respondent to the cross appeal. The question here is whether or not the award is reasonable and sufficient.
Certainly I answer the question in the affirmative. Since issue of award of damages is discretionary and in the absence of any justifiable convincing reason suggesting that the award is ridiculously low or too low not that the award is excessive, I am not persuaded to act either way and tamper with the exercise of discretion by the court below. That is to say that the cross appellant has failed to justify the need to change the award of damages by the court below.

In consequence, the cross appeal fails in its entirety and is hereby dismissed.
There shall be no order for cost.

MONICA B. DONGBAN-MENSEM, J.C.A.: I agree with my learned brother Mudashiru Nasiru Oniyangi, JCA who prepared the lead judgment.
The Appellants went out on a character assassination alleging the defence of justification which they failed to establish.

I adopt the lead Judgment in its entirety as my own. I too hereby dismiss this appeal and affirm the decision of the trial High Court of Ogun State coram: A. O. Asenuga (J).
The cross-appeal is also dismissed for want of substance.

HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading in advance the judgment delivered by my learned brother, Mudashiru N. Oniyangi, JCA.

My learned brother comprehensively considered all the pertinent issues that came up for determination in this appeal. I agree with the reasoning and conclusion reached by my learned brother. I have nothing else to add that will add value to this appeal. Accordingly, I agree that the appeal lacks merit. It is thus dismissed. I also dismiss the cross appeal.
I abide by the order on costs.

Appearances

T. G. ADEOSUNFor Appellant

AND

S. O. OYEWOFor Respondent