ISAAC WILLIE & ORS V. SUNDAY JAMES UDO IBIOK
(2012)LCN/5454(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 12th day of June, 2012
CA/C/154/2006
RATIO
“The hallowed principle of law is that facts admitted do not require further proof. See section 123 of the Evidence Act, 2011 (amended). See also the cases of Agbanelo v. UBN Ltd. (2000) 4 SC (Pt. 1) 233; Akpan v. Umoh (1999) 11 NWLR (pt. 627) 349 Federal College of Education, Okene v. Anyanwu (1997) 4 NWLR (pt. 501) 533; Jikantoro v. Dantoro (2004) 5 SCNJ 152; Iyere v. Bender Feed and Flour Mill Ltd. (2009) All FWLR (Pt. 453) 1217.” Per AKEJU, J.C.A
“It is the law that the assessment of damages is entirely the duty of the trial judge who exercises discretion in making the award. Such factors as the social standing of the victim of the libel the nature of the libel, as well as the value of the local currency are taken into consideration in the assessment of damages. See Ziks Press Ltd v. Ikoku 13 WACA 188; Daily Times (Nig) Ltd. v. Williams (1986) 3 NWLR (pt. 24) 543; Mayange v. Panoh Nig. Ltd. (1997) 7 NWLR (pt. 358) 570; Offoboche v. Ogoja LG (2001) 7 SCNJ 468.” Per AKEJU, J.C.A
TORT: LIBEL: INGREDIENTS TO PROVE LIBEL
“A plaintiff in an action based on libel is expected to establish the following ingredients: a. That there has been a statement in a written or other Permanent form; b. The statement was written by the Defendant who has published the some by making it known to at least one person other than the plaintiff; c. The statement refers to the plaintiff, and it is defamatory or conveys defamatory meaning or imputation; d. That the statement is false See Sketch vs. Ajagbemokeferi (1989) 1. NWLR (Pt. 100) 678; Din vs. African Newspaper of Nigeria Ltd. (1990) 3 NWLR (Pt. 139) 392; Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 295. Thus an action in libel is not established by merely showing that the statement was written. It is most significant that it must be established that the statement was published to at least someone other than the plaintiff himself. Publication which is the making known of such statement is the life and blood of an action in libel. See Ejabulor vs. Osho (1990) 5 NWLR (Pt. 148) 1; Yahaya vs. Munchika (2000) 7 NWLR (Pt. 664) 3000.” Per AKEJU, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
1. ISAAC WILLIE
2. AKPAN S. A. UDOH
3. OKON I. INWANG – Appellant(s)
AND
SUNDAY JAMES UDO IBIOK – Respondent(s)
HON. JUSTICE ISAIAH OLUFEMI AKEJU, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwa Ibom State, Ukanafun Division delivered on 26th June, 2006 in Suit No. HUK/12/92 commenced by the respondent through the Writ of summons filed at Uyo Division on 23rd April, 1992. The Statement of Claim was amended by the Amended Statement of Claim filed on 19th June, 2001, and in paragraph 17 thereof the respondent claimed against the appellants as follows:
“i. N1, 000,000.00 (One Million Naira) being special and general damages for libel in that the Defendant falsely, maliciously and vilely published of and concerning the plaintiff a letter title (sic) ‘VOTE-OF-NO-CONFIDENCE ON CHIEF SUNDAY UDO IBOK VILLACE HEAD OF NDOT IKOT EDA’ which letter was written and published to the President, Traditional rulers’ Oruk Anam Local Government council and also to the Clan Head Oruk Anam Local Government Area Secretary, Traditional Rulers’ Council all family Heads in Ndot Ikot Eda village, Ndot Clan Oruk Anam in which the Defendants particularly in paragraphs 1, 2 4 and 5 of the aforesaid letter called the plaintiff “a patron/mentor to celebrated thieves and all sorts of criminals”, armed robber etc which publication has greatly injured the plaintiff, a recognized village head, in his credit and reputation and has brought him into scandal, odium and contempt.
ii. An order directing the Defendants to publish a suitable retraction of the offending letter titled as above to all the quarters to which same was published and also and (sic) order directing the Defendant to publish in the Pioneer Newspaper offer an apology to the plaintiff, and
iii. An order of perpetual injunction restraining the Defendants by themselves servants, Agents and/or their privies from further publishing of the offending letter or one of a similar character against the plaintiff.”
Originally there were 9 defendants but as a result of death of some of them, only four of the defendants existed at the time of judgment on 26th June, 2006. The defendants’ (appellants’) Statement of Defence filed on 15th May, 1997 was amended through Amended Statement of Defence filed on 29th October, 2003 and the Further Amended Statement of Defence filed on 5th July, 2004.
At the trial, the respondent testified as PW1 and called another witness who was the PW2. Three witnesses testified for the defence as DW1, DW2 and DW3.
The facts relating to the respondent’s claim can be found in the paragraphs of the Statement of Claim (Amended) as follows:
“1. The Plaintiff is native of and resides at Ndot Ikot Eda village. He is also the village Head of Ndot Eda and had been so recognition (sic) by the then Civilian Government of Cross River State Chief (Dr) Clement N. Isong vide a Certificate of Recognition dated 7/9/82 which is hereby pleaded to be founded upon at the trial.
6. The plaintiff avers that on or about the 4th day of April, 1992 he received a letter dated 6th April, (sic) 1992 with Ref.
OA/TRC/AD/18/S.26.Vol.7 1/9 sent to the plaintiff by Mr. S. J. Isonguyo inviting Traditional Rulers council on Monday 13th April, 1992 for inquiry into an issue of vote-of-no-confidence passed on you by your subject.’ This letter is hereby pleaded to be founded at the trial.
7. The plaintiff avers that on or about the 20th August, 19991 (sic) he went to the Traditional rulers, council, Oruk Anam where he met the secretary, Mr. S. D. Isonguyo who gave him a letter written and signed by the Defendants, addressed to the Traditional rulers, council through the clan Head, Ndot Clan, and titled “VOTE OF NO CONFIDENCE ON CHIEF SUNDAY UDO IBOK, VILLAGE HEAD OF NDOT IKOT EDA. The Defendants ere hereby put on notice to produce the original of the aforesaid letter.
8. The plaintiff avers that upon going through the contents of the aforesaid letter written by the Defendants, he was seriously embarrassed and injured in his feelings and so took the letter to his solicitors of Dr. A. Essen & Co. at Uyo.
9. Upon going through both the letter and the invitation the solicitors aforesaid advises the plaintiff not to stand trial before the Traditional Rulers Council because the issues raised in the letter bothered on serious gate?
The solicitors aforesaid also wrote a letter doted 10th April, 1992 with Ref. No.AE/SC/192/35 to the President Traditional Rulers Council, Oruk Anam Local Government Area wherein they advised the council to stay action on any inquiry into the allegations contained therein as they all bothered on criminality.
A copy of the aforesaid letter which was handed (sic) over to the Plaintiff by the Secretary aforesaid is hereby pleaded to be founded upon at the trial of this suit.
The Plaintiff avers that apart from sending the defamatory letter to the Traditional Rulers Council, the Defendants also sent copies to all clan Heads in Oruk Anam who are all members of the council. They also sent copies to villagers in Ndot Ikot Eda and the adjourning villages.”
Indeed the offensive part of the letter is set out in paragraph 10 of the Statement of claim as follows:
“10. The Plaintiff avers that the Defendants maliciously in their letter aforesaid wrote of and concerning him the following defamatory words particularly on pages 1 and 2 thereof.
We, the entire people of Ndot Ikot Eda do unanimously pass a vote of no confidence on Chief Sunday Udo Ibok Head and therefore demand that Chief Sunday should be removed with immediate effect.
To sustain our unanimous decision, we hereby submit our ground to reject him as follows: They are:
1. That Chief Sunday is a person of questionable character. He harbours thieves and criminals and thereby promotes two armed robbery cases in the village.
2. That when goats and sheep are impounded destroying the school farm, he sells them and converts the proceeds to his personal use.
In violation of General Provisions Part Vi 31 subsection (g) he abets stealing by trickishly releasing two stealing culprits (Udo Ben Unanam and Akpan Sunday Udo Iwang) as if to send them to fetch drink. From that day till the present day, the two juveniles are no where to be found.
3. During his reign this village has fallen in every aspect of development. To substantiate the statements, Ndot Ikot Eda is the only village in this vicinity that has both launched Electricity and Water Projects. The neighboring villagers, examples Nket and Uruk Ata have completed planting their poles.
4. That Chief Sunday in charge of stealing refused to subject himself to a Court order in which he was to take the Customary native oath to clear himself. Mbiakot Court suit No. 17/89 between Mr. Udo Udo and Chief S. U. Ibok refers.
5. That he tries criminal cases like stealing and collect heavy sums of money from people. He is now facing serious charges of abuse of office, moral turpitude and felony at Oruk Anam police Station and Abak Police Stations.
6. Up till now, Chief Sunday has refused to select people from the ruling family to form the village council. He has only chosen to rule by intimidation and terror.
7. Sunday is not from the Ruling family in violation of CRS Edict 14 Section 71 subsection 1 (a).
8. Sunday being self elected, does not perform well. He uses circulars of instructions from government to villages as his personal property and stores them up in his bag. We therefore remain sealed up and totally blind to government proposals. For examples no single enlightenment campaign about the forth-coming Head Count was done in this village, with the result that the Recognition figures for this village is not clearly correct. Sunday is playing us the puppetry. Under his suppressive measures of rule we feel we don’t measure up with our sister villages and nearly loss a sense of belonging to this Noble State of Akwa Ibom.
9. In his place therefore we have unanimously elected Chief Michael Udo Udo to be our new village Head consequent upon your approval.
From the foregoing therefore we the entire people of this village do demand that Chief Sunday by (sic) removed in accordance with sub-section 1 (b) (c) (d) of Section 30 subsection 2(b) of Section 30 of the Traditional Rulers Edict No. 14 of 1978 Law of Cross River State as adopted in Akwa Ibom State and Section 31 (1) sub-section (e), (f) and (g) of Akwa Ibom State Edict No. 15 of 1990.”
The effects of the foregoing as pleaded in paragraph 14 are that:
“14. The plaintiff states that by the publication of the aforesaid letter the Defendant (sic) hove presented the plaintiff to all reasonable men in the villages of Ndot Ikot Eda, its environs especially at the Traditional rulers, council, Oruk Anam Local Government Area as:
(a) An armed robber.
(b) A financier, Patron and mentor to armed robbers or men of the underground world.
(c) A man that is not worthy of trust and completely without credibility.
(e) A contemnor who persistently resists and disobeys courts orders.
(f) A thief and a witch.
(g) A man who stole or counsel people to steal from Apostolic Faith Church, Ndot Ikot Eda village in 1984.
(h) A man who collaborates with the Police to subvert and pervert the course of justice, and
(i) An undeserving and unqualified Person who imposed himself as the village Head of Ndot Ikot Eda.”
The trial court in the judgment of 26th June, 2006 found in favour of the respondent. The court awarded, N100, 000.00 damages in favour of the plaintiff (respondent) to be paid by the defendants (appellants) jointly and severally for the libel the published concerning the respondent. The court also granted the two other reliefs claimed by the Plaintiff.
The defendants (henceforth called the appellants) felt dissatisfied with the trial court’s judgment. They filed their Notice of Appeal on 28th June, 2006 with the sole ground that the judgment is against the weight of evidence adduced at the hearing. With the leave of this court however, the appellants filed their Amended Notice and Grounds of Appeal on 17th October, 2007 with four grounds of appeal. The Appellants’ Brief of Argument prepared by Stephen Akpan Esq. subsequently filed on 19th September, 2008 was deemed filed on 22nd September, 2008. The appellants therein distilled the following issues for determination:
“1. Whether the Plaintiff successfully established his claims against the Defendants/Appellants and whether the Defendants/Appellants were not entitled to the defence of qualified privilege in law.
2. Whether the award of N100, 000.00 against the Defendants/Appellants was reasonable in the circumstance of this case.”
The Respondent’s Brief of Argument was filed on 20th February, 2009, more than 5 months after the filing of Appellants’ Brief and outside the statutory period of 30 days after the service of the Appellant’s Brief as allowed to a respondent under Order t8 Rule 4 (1) of Court of Appeal Rules, 2011. The respondent therefore sought, by way of a motion filed on the same 20th February, 2009, the order enlarging the period to file the brief, but on 15th November, 2011 when the motion came up for hearing, it was struck out for want of prosecution together with the Respondent’s Brief which had consequently been rendered incompetent.
For this reason this appeal will be considered and determined only on the appellants’ brief. It is pertinent to state here that the effect of the respondent’s failure to file a brief is that he has conceded the issues raised and canvassed in the appellants’ brief in so far as the issues can be found on the record. This failure however does not translate to automatic success of the appeal or afford the appellant any undue advantage as the appeal must still be considered strictly on its merit. See Echere vs. Ezirike (2006) All FWLR (Pt. 323) 1597; Ogbu v. State (2007) All FWLR (Pt. 361) 1561; Ugboaja vs. Sowemimo (2008) 10 MJSC 105.
At the hearing of the appeal on 2nd May, 2012, appellants’ learned counsel, Victor Offong Esq. adopted the Appellant’s Brief while the respondent was not represented by counsel.
On his first issue, appellants’ counsel had argued that the appellants successfully raised the defence of qualified privilege which they retied upon while the respondent did not establish his case.
It was submitted that the law in operation at the time the action arose in 1992 was the Akwa Ibom State Traditional Rulers Edict No. 15 of 1990 which has substantially the same provisions with Traditional Rulers Law Cap. 34 vol. 6 Laws of Akwa Ibom State, 2000 by section 31 (1) (c) (e) and (s) of which the appellants are entitled to the defence of qualified privilege.
According to learned counsel, the respondent failed to proof that the document in contention was given to nonmembers of the Traditional Rulers Council, Oruk Anam Local Government Area, and that section 31 of the Traditional Rulers Law does not require the appellants to prosecute the respondent before making allegations against him to the Traditional Rulers council which supervises the clan head or village head. It was submitted that the person to whom the allegation is addressed is only expected to exercise a discretion upon receipt of the complaint and his knowledge or its source can not be impeached relying on Suleman vs. COP Plateau State (2008) 8 NWLR (pt. 1089) 298. The learned counsel contended that the signatories to the document under contention had an interest or duty (legal social or moral) to the Traditional Rulers, council that had the corresponding interest to receive it and the appellants did not act with an improper motive. He submitted on the authority of FBN vs. Aboko (2007) 1 NWLR (Pt. 1014) 129 that communication made bonafide on a matter in which the party communicating has interest is privileged and is covered by the defence qualified privilege.
Arguing that the respondent failed to establish his case it was submitted that publication of the defamatory matter must be proved through admissible evidence otherwise the action must fail, citing Ayeni vs. Adesina (2007) 7 NWLR (Pt. 1033) 233. The respondent in the instant case failed to establish that there was publication of the letter complained of outside the Traditional Rulers Council, Orok Anam.
The claim of the respondent which I had earlier on set out in this judgment is founded upon libel allegedly committed by the appellants through a letter they wrote and titled “VOTE OF NO CONFIDENCE ON SUNDAY UDO IBOK, VILLAGE HEAD OF NDOT IKOT EDA.” I had also set out in extension the portion thereof that the respondent pleaded as offensive or libelous.
Libel means a defamatory statement expressed in a permanent form by writing or through sign, picture or electronic broadcast. It has been defined in the case of Guardian Newspaper Ltd vs. Ajeh (2011) vol. 3 and 4 MJSC 104 as at 140 per Fabiyi JSC at page 140:
“as a method of defamation expressed by print, writing, pictures or signs; any publication that is injurious to the reputation of another, a false and unprivileged publication in writing of a defamatory material; a malicious written or printed publication which tends to blacken a persons reputation or to expose him to public hatred, or ridicule, contempt or to injure him in his business.”
A plaintiff in an action based on libel is expected to establish the following ingredients:
a. That there has been a statement in a written or other Permanent form;
b. The statement was written by the Defendant who has published the some by making it known to at least one person other than the plaintiff;
c. The statement refers to the plaintiff, and it is defamatory or conveys defamatory meaning or imputation;
d. That the statement is false
See Sketch vs. Ajagbemokeferi (1989) 1. NWLR (Pt. 100) 678; Din vs. African Newspaper of Nigeria Ltd. (1990) 3 NWLR (Pt. 139) 392; Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 295.
Thus an action in libel is not established by merely showing that the statement was written. It is most significant that it must be established that the statement was published to at least someone other than the plaintiff himself. Publication which is the making known of such statement is the life and blood of an action in libel. See Ejabulor vs. Osho (1990) 5 NWLR (Pt. 148) 1; Yahaya vs. Munchika (2000) 7 NWLR (Pt. 664) 3000.
In the instant case, the respondent gave oral testimony and tendered the allegedly defamatory letter as exhibit C. The gist of his testimony is that exhibit C was written by the appellants and published by them by sending same to other persons apart from the Traditional Rulers Council to which it was addressed. The respondent said he was embarrassed and suffered loss of dignity and respect at least within the Community which he then headed. He has been regarded as an armed robber and someone who thwarts good things, all the allegations being false.
In their Further Amended Statement of Defence, the appellants pleaded in paragraphs 6, 7, 8, 9 and 10 that:
“6. Paragraphs 6 and 7 are true. The defendants aver that they were only signatories representing a community and the entire village of Ndot Ikot Eda. The writers of the document complained of were the entire members of the village and not only the defendants.
8. With regards to paragraphs 10 and 11, the defendants aver further that the write up complained by the plaintiff contained true facts without any iota of malice or spite. The defendants admit signing the letter complained of…
9. With respect to paragraph 12, the defendants aver that they did not send copies of the said letter to villagers in Ndot Ikot Edo and adjoining villages, rather the write up was copied to clan heads, the chairman Oruk Anam Local Government Area and the family heads in Ndot Ikot Eda for purpose of information that the village no longer wanted the Plaintiff as their village head.”
From the foregoing, the following were clearly admitted by the appellants:
1. The appellants were signatories to the letter, exhibit C.
2. Exhibit C was written of, and concerning the respondent.
3. Exhibit C was sent to Persons apart from the plaintiff, or put more appropriately,there was publication of exhibit C.
The hallowed principle of law is that facts admitted do not require further proof. See section 123 of the Evidence Act, 2011 (amended). See also the cases of Agbanelo v. UBN Ltd. (2000) 4 SC (Pt. 1) 233; Akpan v. Umoh (1999) 11 NWLR (pt. 627) 349 Federal College of Education, Okene v. Anyanwu (1997) 4 NWLR (pt. 501) 533; Jikantoro v. Dantoro (2004) 5 SCNJ 152; Iyere v. Bender Feed and Flour Mill Ltd. (2009) All FWLR (Pt. 453) 1217.
It has thus become established that the appellants authored exhibit C and published same of and concerning the respondent.The respondent’s evidence on record is that he was injured by the content of exhibit C.
On the burden on a plaintiff in an action for libel, it was stated in Iloabachie v. Iloabachie (2005) All FWLR (Pt. 272) 223; 252-253 that:
“The onus is on the plaintiff, in an action for libel, to show that the published words complained of are defamatory or that they convey defamatory imputation. However, where the words complained of are defamatory in their natural and ordinary meaning, the plaintiff has no legal duty to lead any evidence to show additional defamatory meaning as understood by persons possessing some particular facts.”
The learned trial judge after a thorough analysis of the evidence found that Exhibit C was libelous of the respondent. I do not find this to be perverse and I accordingly uphold this finding.
Is the defence of qualified privilege available to the appellants?
Exhibit C was addressed to the President and Secretary of Traditional Rulers Council, Oruk Anam Local Government Council, Chairman of the Local Government, Clan heads and all family heads in Ndot Ikot Eda village on matters that raise serious and weighty allegations of commission of most heinous crimes. The argument of the learned counsel is that they have solace under section 31 (a) (b) (e) of Traditional Rulers Law cap. 134, Laws of Akwa Ibom State 2000 in that the appellants have a duty to write, and the Traditional Rulers council have a corresponding duty to receive the content of exhibit C.
This position of the learned counsel as far as the law is concerned generally is correct to the extent that for a defendant to be covered by the defence of privilege the person making the statement must show a moral or social duty to make it to the person to whom it was made who must also have a corresponding duty to receive it or have interest in hearing it. The two must exist contemporaneously. See Ugo vs. Okafor (1996) 3 NWLR (Pt. 438) 542; Ojene vs. Momodu (1994) 1 NWLR (pt. 323) 685; Akomolafe v. Guardian Press Ltd. (printers) (2010) All FWLR (Pt. 517) 773.
The pertinent question in the instant case is what is the interest or duty of the Traditional Rulers Council in the criminal allegations made by the appellants?
I will refer to the organic law of this country which is the constitution of the Federal Republic of Nigeria, 1999, and which in its section 214 makes the following provisions:
“214 (1) There shall be a Police Force for Nigeria, which shall be known as the Nigeria police Force, and subject to the provisions of this Section no other police force shall be established for the Federation or any part thereof.
(2)(b)The members of the Nigeria Police Force shall have such powers and duties as may be conferred upon them by law.”
One of such laws is the Police Act, Cap. P19 Laws of the Federation of Nigeria 2004 section 4 of which confers on the Police the power to prevent commission of crime, apprehend offenders and conduct prosecution of criminals, powers which are not by any known law conferred on the Traditional Rulers Council.
Also, the defence of qualified privilege will have no place where malice is established. In the instant case it is obvious from exhibit C that the allegations therein are put together to achieve the objective stated at the conclusion thereof which is to ensure the removal of the respondent from office – i.e. calling the dog a bad name so as to hang it. The respondent pleaded and testified that the appellants had written letters of similar character against him which failed to yield the desire of the appellants.
I resolve issue 1 against the appellants.
The second issue concerns the award of N100, 000.00 damages which the learned counsel described as unreasonable in the circumstances of the case. It was argued that the learned trial judge considered irrelevant materials in awarding the damages by regarding the respondent’s standing as village head of Ndot Ikot Eda.
It is the law that the assessment of damages is entirely the duty of the trial judge who exercises discretion in making the award. Such factors as the social standing of the victim of the libel the nature of the libel, as well as the value of the local currency are taken into consideration in the assessment of damages. See Ziks Press Ltd v. Ikoku 13 WACA 188; Daily Times (Nig) Ltd. v. Williams (1986) 3 NWLR (pt. 24) 543; Mayange v. Panoh Nig. Ltd. (1997) 7 NWLR (pt. 358) 570; Offoboche v. Ogoja LG (2001) 7 SCNJ 468.
For the appellate court to interfere with the exercise of the lower court’s discretion in the award of damages it must be shown that:
1. The trial court acted under a mistake of law or upon some wrong principles of law; or
2. The award is arbitrary; or
3. The amount award is extremely high or ridiculously low; or
4. The lower court erroneously exercised its discretion or acted in disregard of principles in making the award; or
5. The trial court acted under a misapprehension of fact or took irrelevant factors into consideration or failed to consider relevant matters. See Guardian Newspapers Ltd. v. Ajeh (2011) vol. 3 & 4 MJSC 104.
I find no basis for interfering with the award of damages by the learned trial judge, and this issue is also resolved against the appellants.
The net result is that this appeal is grossly unmeritorious and it is accordingly dismissed. The judgment of the High Court of Akwa Ibom State, Ukanafun Division delivered on 26th June, 2005 is upheld. I award cost of N30, 000.00 against the appellants.
UZO I. NDUKWE-ANYANWU,J.C.A: I had the privilege of reading in draft form the judgment just delivered by my learned brother Isaiah Olufemi Akeju JCA. I agree with the reasoning and final conclusions of my learned brother in the lead judgment to dismiss the appeal it being unmeritorious. I abide by the order as to costs.
JOSEPH TINE TUR, J.C.A: Having read in advance the judgment of my Lord, I.O. Akeju, JCA I have no option but to concur with his reasonings and conclusions. I shall add the following comments of mine.
Sunday Udo Ibok (Respondent) is a chief and head of Ndot Ikot Eda village, Ndot clan in Oruk Anam community. The word “Chief” is defined as a person who is put above the rest, example as leader; the principal or most important person in the community. See Blacks Law Dictionary, 8th edition page 258.
In local parlance he is one of the most important local worthies/elders in the community. See Udo v. Melifonwu (1961) 5 ERNLR 93 at 96. Nevertheless, the appellant in his defamatory write-up referred to the Respondent in Exhibit “C” thus, “…that Chief Sunday is a person of Questionable character. He harbours thieves and criminals and thereby promote crime rate in his village. He was the brain behind the two armed robbery cases in the village.” Appellants did not deny writing Exhibit “C” and publishing same to for instance the Traditional Rulers Council, Oruk Anam Local Government Area and others. His Lordship found the contents of Exhibit “C” defamatory of the Respondent. Having considered the defences of justification, qualified privilege etc pleaded by the appellants his lordship held that these defences did not avail the appellants. His Lordship reasoned at page 185 lines 22 to 29 to page 186 lines 1-15 of the Printed record as follows:
“I hold that none of the defences put up by the defendants avail them. In sum therefore, I am of the respectful view that the allegations contained in Exhibit “C” are defamatory of the plaintiff. This allegation were published to many persons including the Paramount Ruler, Oruk Anam Local Government Area, the Chairman of that Local Government Area, all the clan Heads of Oruk Anam Local Government Area, the family Heads in Ndot Ikot Eda village and indeed, the villagers thereof, among others. That Exhibit “C” was written by the defendants inter alias, has not been denied. I therefore find the defendants jointly and severally liable to the plaintiff’s claim. It is only left for me assess damages. The principle in assessing damages in a case of libel as in the instant case is guided by the conduct of the plaintiff, his position and standing, the nature of the libel, the mode and extent of publication, the absence or refusal of retraction or apology and the whole conduct of the defendant from the time when the libel was published down to the very moment verdict. See Jahaya v. Munchika (2000) 7 NWLR Pt.664 page 300. Applying this principle therefore to the facts of this case, I am of the firm view that the plaintiff is entitleD to recover substantial damages having regard to his position and standing in his community as the village head of Ndot Ikot Eda, as at the time of the publication of the libelous material. Furthermore, the nature of the libel was such that the plaintiff was not only branded a thief but an armed robber, a heinous crime punishable by dead on conviction. The defendants made no attempt at showing remorse; rather, they stuck to their position as portrayed by the Further Amended Statement of Defence filed on 5th July, 2004….”
The appellants have been unable to disparage the above findings and conclusions of the learned trial Judge. The findings are amply supported by the evidence on record.
In Gatley on Libel and slander, 9th edition page 42 to 43 paragraphs 2-19 the learned authors stated that:
“…The importation of a criminal offence or conviction would usually be defamatory, but not, it is thought, in very minor cases …” It may be defamatory to say that someone is suspected of an offence even where that does not imply guilt; or that he has been charged with an offence.”
Again at page 53 paragraph 2.28 of Gatley on Libel and slander supra the learned authors have written that:
“…It is defamatory to impute to a person in any office any corrupt, dishonest or fraudulent conduct or other misconduct or inefficiency in it, or any unfitness or want of ability to discharge its duties, and this is so whether the office be public or private, or whether it be one of profit, honour or trust.”
If the contents of Exhibit “C” are not libelous of the Respondent, I wonder what they are!! There is no merit in this appeal. I too dismiss this appeal.
Appearances
Victor Offong Esq.For Appellant
AND
For Respondent
