MR. BANKOLE MAKINDE & ORS. V. PRINCE GODWIN OMAGHOMI
(2010)LCN/3791(CA)
In The Court of Appeal of Nigeria
On Thursday, the 13th day of May, 2010
CA/I/27/2005
RATIO
TORT: WHAT DOES LIABILITY FOR LIBEL DEPEND ON
the law is already trite that liability for libel does not depend on the intention of the defamer, but on the fact of defamation. PER SIDI DAUDA BAGE, J.C.A.
DAMAGES: WHAT CONSTITUTES DAMAGES
“It is said that damages are compensation in money.” “They are a sum of money given to a successful Plaintiff as compensation for loss or harm of any kind. It seems that, once a party has been fully compensated for the loss or harm suffered by him, it should not be open to the Court to proceed to award him any other kind of additional damages that may look like a bonus”. See:- the Supreme Court’s decision in Anthony M. Soetan & Another Vs. Z. Ade Ogunwo (1975) 6 SC 67 At 72. PER SIDI DAUDA BAGE, J.C.A.
DAMAGES: FACTORS CONSIDERED IN THE AWARD OF DAMAGES IN AN ACTION FOR DEFAMATION
The factors to be considered in awarding damages in an action for defamation were enumerated in the case of NEPA Vs. INAMETI (2002) FWLR (Part 130) 1695 at 1704 as follows:-
(1) The conduct of the Plaintiff;
(2) The Plaintiff’s position and standing;
(3) The nature of the libel;
(4) The mode and extent of the publication;
(5) The absence or refusal of any retraction or apology;
(6) The whole conduct of the Defendants from the time when the libel was published down to the very moment of the verdict. PER SIDI DAUDA BAGE, J.C.A.
APPEAL: ATTITUDE OF THE APPELLATE COURT TOWARDS INTERFERENCE WITH THE ASSESSMENT OF DAMAGES MADE BY TRIAL COURT
The next thing to consider is whether this Court can interfere with the assessment of damages done by the trial Court which is the kernel of the Appellant’s appeal before this Court. The Supreme Court has since put this issue to rest in the case of Onwuka Vs. Omugui (1992) 3 NWLR (Part 230) 392 At 400 Ratio 8, per Nnanemeka Agu, JSC(as he then was) when he stated:-
“Section 16 of the Court of Appeal Act, 1976, as indeed Section 22 of the Supreme Court Act, 1960, has given to the Court full jurisdiction and powers over such matters as if it were a Court trial. See: on this, Edigbonya Vs. Dumez Nig. Ltd. (1986) 3 NWLR (Part 31) 753; Solel Bonneh Nig. Ltd. Vs. Ayodele & Another (1989)1 NWLR (Part 99) 549 At 559. As such is the position, there is now no need for this Court or Court of Appeal to look at an issue of damages as if it were a sacred cow reserved for the Court of trial. The correct approach ought to be that unless an issue of credibility of witnesses as to damages arises in the proceeding the appellate Court ought, on entering or affirming a judgment in favour of Plaintiff to assess and award damages to which he is entitled. This was infact, the attitude adopted by the Court of Appeal in England per Denning L. J. in Ward Vs. James (1966) 1 Q. B. 273, Pages 301- 303”.
Also, Section 15 of the Court of Appeal Act, 2004, under the general powers of Court of Appeal provides that this Court ………..”general shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a Court of first instance”. The principles upon which an appellate Court will act in reviewing an award of damages are now well settled. An appellate Court is not justified in substituting a figure of its own for that award by the lower Court simply because it would have awarded a different figure if it had tried the case at first instance. PER SIDI DAUDA BAGE, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
KUDIRAT M. O. KERERE-EKUN Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
Between
(1) MR. BANKOLE MAKINDE
(2) MR. FEMI ADEOTI
(3) AFRICAN NEWSPAPERS OF NIG. PLC. Appellant(s)
AND
PRINCE GODWIN OMAGHOMI Respondent(s)
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Oyo State sitting in Ibadan, presided over by Hon. Justice A. A. Sanda, delivered on the 30th June, 2004. The Plaintiff/Respondent’s claims against the Defendants/Appellants jointly and severally at the lower Court are for:-
(a) N5 Million (Five Million Naira) being damages for libel contained in pages 2 & 3 of Sunday Tribune Edition of 7th March 1999, captioned I do not know Clifford Orji” says Ibadan mystery man printed and published and circulated by the Defendants concerning the Plaintiff.
(b) Injunction restraining the Defendants, their agents, servants or privies from further publishing and or circulating the said or any similar libel concerning the Plaintiff.
The background facts are that, the 1st and 2nd Appellants who are staff of the 3rd Appellant, caused a story to be published on the Respondent in the Sunday Tribune, one of the tabloids of the 3rd Appellant on March 7, 1999 captioned I DONT KNOW CLIFFORD ORJI SAYS IBADAN MYSTERY MAN.The said story, falsely and maliciously portrayed the Respondent as an occultist, queer and dangerous person. The publication was widely read in Ibadan and other part of the country portrayed the Respondent as a ghost, a reincarnated man who sells his wares only to the fairies and rulers of the universe.
The Respondent wrote a petition dated 29th March, 1999 to the Appellants complaining against the publication of 7th March, 1999 and demanding for apology. The Appellants rather than apologizing as demanded by the Respondent, published again on the 4th April, 1999 same story without any apology to the Respondent. The Respondent later instructed his Solicitor to write a letter to the Appellants demanding for apology written on the 21st July, 1999. It was the failure of the Appellants to tender the requisite apology on the misinformation it published about the Respondent that was the cause of the suit in the Court below.
At the end of the trial, the learned trial Judge awarded the sum of N500,000.00 (Five Hundred Thousand Naira) as damages against the 1st, 2nd and 3rd Appellants jointly and severally in favour of the Respondent. In the Notice of Appeal dated 22/07/2004 there were eight (8) grounds of appeal from which the Appellants distilled five issues for determination of this Court. The Issues are:-
(1) Whether the words complained of constituted the tort of libel and the Defendant justly hold liable by the trial Court.
(2) Whether the defence of fair comment raised by the Defendants was not properly made in the circumstances of this case.
(3) Whether the learned trial Judge could rightly speculate on evidence in considering factors for award of damages.
(4) Whether the sum of N500,000.00 (Five Hundred Thousand Naira) awarded as damages is not manifestly high in the circumstances of this case and arrived at through speculation on evidence regarding the factors to be considered in the award of damages.
(5) Whether the cost of N10,000.00 (Ten Thousand Naira) awarded is not excessive in the circumstances having found and held in the judgment that cost should not be punitive but compensatory.
On the part of the Respondent three Issues were formulated. They are:-
(1) Whether the Respondent succeeded in proving the case of libel against the Appellants.
(2) Whether the amount of N500,000.00 (Five Hundred Thousand Naira) damages awarded by the learned trial judge was excessive in the circumstances of this case.
(3) Whether the sum of N10,000.00 (Ten Thousand Naira) cost awarded against the Appellants by the trial Court was excessive in the circumstances of this case.
In the Appellant’s Brief of Argument dated 3/11/2006 filed on 6/11/2006, deemed as properly filed on 7/11/2006 adopted and relied upon when the appeal was argued, the learned Counsel to Appellants – Alhaji Akinjide Sadiq, in respect of his first Issue, submitted that, the law is well settled that the trial Court trying a libel suit must first determine whether the words complained of in the action are capable of conveying a defamatory meaning. Learned Counsel submitted further that to be defamatory, an imputation must tend to lower the Plaintiff in the estimation of right thinking members of the society generally. To determine this, the Judge will construe the words according to the fair and natural meaning which would be given them by reasonable persons of ordinary intelligence and will not consider what persons setting themselves to work to deduce some unusual meaning might succeed in extracting from them. See:- Ajagbe Mokeferi Vs. Sketch Publishing & Coy. Ltd. (1989) 1 N.W.L.R. (Part 100) 678.
Learned Counsel submitted further that, it is not enough to say some person might have understood the words complained of in a defamatory sense; it is unreasonable that where there are a number of good interpretations, only the bad one should be seized upon to give a defamatory sense to the document. See:- Nevil Vs. Fine Arys & CO. (1987) A.C. 68 At 73; Stubbs Vs. Russell (1913) A.C. 386 At 399.
Learned Counsel submitted further that, in the suit now on appeal, the Respondent relied on the natural and ordinary meaning of the words published. The words are therefore to be construed as they stand since no innuendo was pleaded. The publication complained of in this case was the of an interview granted by the Respondent to the Appellants even though it contained some comments necessary to introduce the subject of the interview.
Learned Counsel further submitted that during the interview, the Respondent agreed that the questions put to him were based on what the people in his neighbourhood were saying about him same of which he had himself been confronted with. The Respondent took his time to react to all the things being said about him giving detail account to debunk all of them. Learned Counsel submitted further that in the publication, the Respondent discovered some errors in the report of his reactions. He promptly wrote Exhibit ‘PG02’ and he demanded that Exhibit ‘PG02’ should be published in order to correct those errors. The letter was published and the society is given the benefit of knowing the Respondent better. This is borne out by the evidence of the Respondent under cross-examination on page 13 of the records.
Learned Counsel submitted further that, to succeed in an action of libel, the onus lies on the Respondent to show to the Court, how the publication had caused him to be shunned by reasonable men in the society. PW3 said clearly that inspite of the publication, he still relates with the Respondent as a friend because he knew what the people said about him was not true. PW2 said that, what infuriated him about the publication was the aspect that said that his father, had no wife or children. PW2 was obviously reacting to what the people said about his father and not the response of the Respondent to the question. Having confessed that he did not himself read the publication. The Respondent when confronted with the question during the interview, gave account of his wives and children. Some of whose names were contained in the publication. The Respondent led no evidence of how the publication affected his business. Learned Counsel further submitted that since no innuendo was pleaded, the words complained of cannot be interpreted to give any of the meanings ascribed to them in the pleadings and in the evidence led by the Respondent at trial. The conclusion and findings of the trial Court that the publication contained untrue imputation against the Respondent and amounted to tort of libel should be set aside.
On Issue No.2, learned Counsel to the Appellants submitted that, the comment with which the subject matter of the publication was introduced is certainly fair. It is the law that such comment would not be rendered unfair either because it was merely or grossly exaggerated. The comment may still be termed fair no matter how wrong the opinion expressed therein may be in point of truth or however prejudiced the writer may be. It is irrelevant whether the Court agrees or not with the opinion expressed by the Defendant in the comment. See: Sketch Vs. Ajagbe Mokeferi (supra).
Learned Counsel submitted further that so long as the publication is a comment and fair and based on a matter of public interest, the lower Court should have upheld the plea as having been properly made out.
On Issues 3 and 4 which flows from and relate to grounds 4, 5, 6 and 7 of the grounds of appeal, learned Counsel to the Appellants submitted that, the Court has a duty to confine itself to the issues raised by the parties in their pleadings and must not make any case for parties other than that submitted to it by the parties. See:- Ajayi Aruba Vs. Fatai Aiyeleru & Others (1993) 2 SCNJ 90. Learned Counsel further submitted that, it is conceded that the factors relied upon by the trial Judge should normally be considered, but consideration must be situated within the pleadings of the party in whose favour the Court had used them. If a party suing another for libel did not bring forward evidence on extent of publication and the character of the Defendant as habitually disparaging other people’s reputation, how will the Court know this unless it speculates. In this case, the Respondent neither pleaded anything on the extent of circulation nor the habit of the Defendants.
Learned Counsel further submitted that the finding, prima facie, is a speculation by the lower Court based on the biased mind of the Judge about the purported habit of the ‘Sunday Tribune’. The award based on bias and speculation ought not to be allowed by this Court. See:- the case of Alhaji A. F. Alawiye Vs. Mrs. E. A. Adesanya (2004) 4 NWLR (Part 864) 486 At 514-515 Paragraphs H-A.
Learned Counsel submitted further that though, the extent of publication is a relevant factor for consideration, the Court can only arrive at a just award by actually gauging the extent of the publication and this Court cannot do unless same is pleaded and evidence led thereon. An attempt to gauge the extent of publication with facts about it not being pleaded can only be a guess work. It will also amount to making a new case for the Respondent. See:-. Reverend Moses Abeigbe Vs. Edherem Ugbodume (1991) SCNJ 1. Learned Counsel submitted further on the status of the Respondent who pleaded no special status to warrant the amount awarded by the trial Court. The Respondent calls himself a Prince. The status was not explained both in the pleadings and through evidence. The Respondent did not give any particulars of any damage suffered in his status as a Prince. The Respondent is a petty trader dealing in electrical parts at Ayeye – a street in Ibadan. The status paraded by the Respondent cannot justify the award made in the sum of N500,000.00 (Five Hundred Thousand Naira).
Learned Counsel submitted further that Exhibit ‘PG02’ was couched with such words as to make it clear that publishing the letter within the stipulated days was enough to assuage the Respondent’s feeling. It also showed that the Appellants never intended to defame the Respondent. It showed remorsefulness and the attitude is conciliatory. This, it is humbly contended, ought to have positively affected the mind of the Court for the award of nominal damages. Learned Counsel further submitted that the factors relied upon by the trial Court for award of damages were wrongly applied to the facts of this case and this Court is urged to set aside the award made by the trial Court entirely or substitute therefore an award of a lower figure as nominal damages.
On Issue 5 which flow from ground 8, learned Counsel to the Appellants submitted that, it is conceded that costs normally follow events. Although, the trial Judge rightly observed that costs should be compensatory and not punitive, but still went ahead to award N10,000.00 (Ten Thousand Naira). The costs awarded in the circumstance of this case is punitive and ought to be set aside.
Finally, learned Counsel submitted that for all the arguments proffered, this appeal should be allowed.
Learned Counsel to the Respondent, Babatunde Oni, Esq., in arguing Issue No. 1 submitted that, the position of law is that, for a trial Court to determine an issue of tort of libel, it has to consider the ingredients of libel as enumerated in Sketch Publishing Company Vs. Ajagbe Mokeferi (1989) 1 NWLR (Part 100) 678. See also:- Concord Press Nig. Ltd & Others Vs. Femi Ashaolu (1999) 10 NWLR (Part 621)128; Samson Owie Vs. Solomon E. Ighiwi (2005) All FWLR (Part 248) 1762 At 1978 Paragraphs D-E; Nitel Vs. Prof. Tugbeyele (200S) All FWLR (Part 247) 357 Paragraphs E& F; Alhaji A. R. Sule & 2 Others Vs. Mr. J. Orisajinmi (2006) All FWLR (part 343)1686 At 1717 Paragraphs A-E. On Issue No.2, learned Counsel to the Respondent submitted that, libel is actionable perse, once the Respondent has established all ingredients of libel, damages will automatically flow from the publication of defamatory statement. See:- Concord Press Nig. Ltd. & Others Vs. Femi Ashaolu (supra).
Learned Counsel submitted further that the assessment of damages is peculiar within the province of the trial Court, as the assessment of damages does not depend on any legal rule. See:- African International Bank & 2 Ors. Vs. Femi Ashaolu (2005) All FWLR (Part 270) 2092 At 2132 Paragraph D. Learned Counsel further submitted that the sum awarded against the Appellants by the trial Court are compensatory in nature which may include not only actual pecuniary loss or any social disadvantage which result or may result from the wrong which has been done. Also, even the record of appeal has shown and justifies the award of damages and the DW1, an Editor of the Sunday Tribune and a Staff of 3rd Appellant, on page 17 of the record, confirmed the words complained of, was printed by the Appellants.
Learned Counsel further submitted that, the trial Court considered all the factors in awarding damages in an action for defamation as enumerated in NEPA Vs. INAMETI (2002) FWLR (Part 130) 1695 At 1704. Learned Counsel submitted further that assuming without conceding that the trial Court gave wrong reasons for the decision, such mere wrong reason will not be a ground for setting aside the judgment of the trial Court by the appellate Court, as the paramount consideration for the appellate Court is whether the decision is right not necessarily what the reason are. See: A.L.C Ltd. Vs. N.N.P.C (2005) All FWLR (Part 270 1945 at 1956 Ratio 13 particularly at page 1977 Paragraphs D- F.
On Issue No.3 which is the cost of N10,000.00 (Ten Thousand Naira) awarded against the Appellants, learned Counsel to the Respondent submitted that, it is trite the award of cost is at the discretion of the trial Court which the Court of Appeal is usually very slow in interfering with except in very exceptional circumstances. The trial Court having examined the cost of filing of the suit which was N5,130.00 (Five Thousand, One Hundred and Thirty Naira) paid by the Respondent, and the number of appearances from the inception of the suit till when the verdict was delivered on the 30th June, 2004, the trial Court rightly awarded the sum of N10,000.00 (Ten Thousand Naira) against the Appellants. This Court is urged not to interfere with the said award. See: Mathew Akinpelu Vs. Paulinius Chukwu & 4 Others (2005) All FWLR (Part 269) 1852 At 1876 Paragraphs A-B.
Learned Counsel to the Respondent finally submitted that, this Court should uphold the judgment of the trial Court and dismiss this appeal.
Looking at the Issues formulated by the parties in this appeal, they are substantially identical. Although, the Respondent on his part, had considered the Issues for determination to three, as against the five by the Appellants; it should be noticed that, the three (3) Issues of the Respondent’s Brief of Argument has encompassed all the Five (5) Issues formulated by the Appellants in their Brief of Argument which becomes coterminus in all respect, they raised the same question as to whether the publication made by the Appellants against the Respondent was libelous or not, and also whether the award of damages by the lower Court in favour of the Respondent against the Appellants is appropriate or excessive and the award of cost punitive.
On Issue No. 1 – libel, how can libel be considered to be defamatory? Catley on libel and slander Ninth Edition provides:-
“Any imputation which may tend to cause a person to be hated is defamatory of him.”
The grouse of the Respondent, then Plaintiff at the lower Court was the Appellants, 1st, 2nd and 3rd publishers of the African Newspaper of Nigeria Plc. published in their Sunday Tribune of 7th March, 1999 conveying the caption:-
“I don’t know Clifford Orji says Ibadan mystery man.”
Accordingly, it was the word the ‘mystery man’ that baffles the Respondent contained in Pages 2 and 3 of the Newspaper tendered and admitted marked Exhibit ‘PG01’. Also, that reading the Newspaper and the word ‘mystery’ in Exhibit ‘PG01’ made him to worry, because ‘mystery man’ means that, he is a dead man; that the news is connected to him that the word ‘mystery man’ means that he is a dead man living, that he is dangerous to somebody and to the community.
As a result of this publication, the respondent wrote a petition on false publication dated the 29th March, 1999, addressed to the management Editor and Writer, African Newspaper of Nigeria Plc. Tendered and marked as Exhibit ‘PG02’. The opening paragraph of that petition states:-
“I refer to your publication of Sunday Tribune dated 7th day of March, 1999, for which I was misquoted in the interview; I granted the Sunday Tribune on the understated issue that are damaging to my image.”
In conclusion, the Respondent stated in the petition as follows:-
“I will therefore appreciate the publication of this protest letter as a rejoinder to the interview published. In order to correct every wrong or false impression painted of me by the said interview. This should be done within fourteen (14) days from the date of receipt of this protest letter.”
Also at page fourteen (14) of the Sunday Tribune of the 4th April, 1999, the Respondent published the content of the petition on false publication sent by the Respondent to it, Exhibit ‘PG02’, in column called the ‘FEEDBACK’.
In furtherance to this, the Respondent through his Counsel, Soji Opabunmi Esquire in another letter dated the 21st July, 1999, tendered and admitted in evidence marked Exhibit “PG04”, captioned “Re Malicious publication against Prince Godwin Omaghomi” which stated as follows:-
“On April 4th, 1999, in your edition of same day you purportedly carried a minor piece titled “Feed back”- Ostensibly in compliance with our client’s demand. However, our client has expressed his displeasure over your purported rejoinder as there was no acknowledgement of any sort by your newspaper about the outright false hood earlier published against Our client. Consequently, our client is demanding through this office an unequivocal letter of apology from your newspaper (which must be published and given a good measure of prominence) regarding the misinformation and outright false hood contained in your publication of 7th day of March, 1999 and which he highlighted in this letter aforementioned.
This he expects you to do in your next publication coming out on Sunday, the 25th day of July, 1999 failing which we have full and firm instructions to institute legal action against your newspaper for defamation of character…”
The Appellants in their response to these facts, maintained that, since no innuendo was pleaded, the words complained of cannot be interpreted to give any of the meanings ascribed to them in the pleadings and in the evidence led by the Respondent at the trial. The conclusion and findings of the trial Court that the publication contained untrue imputation against the Respondent and amounted to tort of libel should be set aside. Also, the comment with which the subject matter of the publication was introduced is certainly fair. It is the law that such comment would not be rendered unfair either because it was merely or grossly exaggerated. The comment may still be termed fair no matter how wrong the opinion expressed therein may be in point of truth or however prejudiced the writer may be. It is irrelevant whether the Court agrees or not with the opinion expressed by the Defendant in the comment.
This Court examines critically the position taken by the learned trial Judge confronted with the arguments in his judgment. At page 42 of the record, he stated:-
“The Defendants in their pleadings and address submit that they rely on defence of fair comment. In order that a Defendant will be availed of defence of fair comment, the following conditions must be present:-
(1) It must be based on facts truly stated;
(2) It must be honest expression of the writer’s real opinion;
(3) It must not contain insinuations of corrupt or dishonourable motives on the person whose conduct or work is criticized save in so far as such imputation warranted by facts. See:- Davis Vs. Shipstone (1886) 11 Appeal Cases Page 29.”
At Page 44 of the record, it stated:-
“For a comment to be fair and avail the Defendant a defence in libel, it must be an honest comment as referred to above the caption in instance took its root from rumour and gossip.”
In the opinion of this Court, the trial Court got the position of the law correctly. The words used which constitute the comment relied upon, must always be examined to determine whether they are fair. The position in common law which is also adopted in this country in determining the words, the intention and knowledge of the publisher is immaterial. What imputation is conveyed by any particular words is to be determined on an objective test, that is, by the meaning in which the ordinary reasonable person would understand them; and is not to be determined by what the Defendant intend to convey. See:- Mapp Vs. News Group Newspapers, The Times, (1997) C.A. 10, it was held:-
“Liability for libel does not depend on the intention of the defamer, but on the fact of defamation.”
The Nigerian Courts had interpreted and expressed the same position in various decided cases. See:- Dr. Momoh Anate Vs. Abubakar Sanusi (2001) 11 NWLR (Part 725J 542; Professor Tam David West Vs. Mr. Biodun Oduwole & Ors. in CA/236/2001 delivered by Court of Appeal Ibadan Division on 3rd April, 2003; Edem Orpheo Nigeria Ltd. (2003) 10 MJSC 28; Mr. Emmanuel Agbanelo Vs. Union Bank of Nigeria Ltd. (2000) 7 NWLR (Part 666) 534; (2000) 4 SCNJ; 353, 356; Dr. Mattuas Oko Offoboche Vs. Ogoja. Local Government & Another (2001) FWLR (Part 68) 1057; Isaac D. O. Ejabulor Vs. H. H. B. Osha (1990) 5 NWLR (Part 148) 1; NEPA Vs. Inameti (2002) 13 WRN 108; Dumbo & Ors. Vs. Idugboe (983) ANLR37
.
As stated earlier, the law is already trite that liability for libel does not depend on the intention of the defamer, but on the fact of defamation.
The defence put forward by the Appellants for publishing their article was that, it is a media set up, they had a social responsibility in the ordinary course of their duties to inform and educate the public, and that the publication was a fair comment. This Court will state here and now that, the social responsibility of the media is a fact which is judicially noticed. However, reports must be accurate and must not constitute an infraction on the right and dignity of any member of the society; and more specifically the Respondent in this appeal. It is a fact the Appellants on the 7th day of March, 1999, did the publication “I don’t know Clifford Orji says
Ibadan mystery man” – Exhibit “PG01”. The Respondent wrote a petition, Exhibit “PG02” dated 29th March, 1999 addressed to the Management Editor and Writer African Newspaper of Nigeria Plc., for which he maintained he was misquoted in the interview he granted to the Appellants and gave seven (7) reasons how the fact of misquoting him had damaged his image. He demanded the publication of Exhibit “PG02”, his letter, to serve as a rejoinder to interview published by the Appellants. The Appellants on the 4th April, 1999, published in its Sunday Tribune at page 14 (Exhibit “PG03”) what it called “FEED BACK”. It published the content of Exhibit “PG02”, the petition written to it by the Respondent on the 29th of March, 1999, but excluded the name and address of the Respondent at the letter head and also to whom the letter was addressed to. Clearly therefore, there is a missing link between the publication and the Feed Back which the petition had sought to be remedied. On a plain examination by an ordinary reasonable reader, no one can say who made the Feed Back when the name and address of the Respondent clearly stated in the first publication, is deliberately removed from the second publication. This act of the Appellants prompted the Respondent to instruct his Solicitor to write to the Appellants. Exhibit “PG04” dated the 21st July, 1999 demanding an unequivocal letter of apology to be published and given a good measure of prominence regarding the misinformation and what the Respondent termed as outright false hood contained in the publication of 7th day of March, 1999, Exhibit “PG01”; and that to be done in the next publication coming out on the 25th of July, 1999. The Appellants failed to do; and hence the action at the lower Court. On the plain facts of what is before this Court, I cannot, but agree with the findings and the conclusion reached by the trial Court that the publication made by the Appellants contained in Exhibit “PG01” is libelous to the Respondent and I resolve Issue One (1) in favour of the Respondent.
In considering the second Issue – damages, “It is said that damages are compensation in money.” “They are a sum of money given to a successful Plaintiff as compensation for loss or harm of any kind. It seems that, once a party has been fully compensated for the loss or harm suffered by him, it should not be open to the Court to proceed to award him any other kind of additional damages that may look like a bonus”. See:- the Supreme Court’s decision in Anthony M. Soetan & Another Vs. Z. Ade Ogunwo (1975) 6 SC 67 At 72.
In the present appeal before this Court, it is resolved that Respondent was defamed. The issue in contention here, is whether the trial Court after examining the nature, the content and the surrounding circumstances of that publication, rightly or wrongly assessed the quantum of damages as compensation to the Respondent against the Appellants.
The factors to be considered in awarding damages in an action for defamation were enumerated in the case of NEPA Vs. INAMETI (2002) FWLR (Part 130) 1695 at 1704 as follows:-
(1) The conduct of the Plaintiff;
(2) The Plaintiff’s position and standing;
(3) The nature of the libel;
(4) The mode and extent of the publication;
(5) The absence or refusal of any retraction or apology;
(6) The whole conduct of the Defendants from the time when the libel was published down to the very moment of the verdict.
In considering the factors enumerated above in the assessment of the damages, the trial Court in its judgment, at page 45 of the records paragraph 25 stated:-
“Another salient consideration in assessing damages is the conduct of the Defendant.
There is evidence of that when the Plaintiff complained that what the Defendant published in Exhibit ‘PG01’ is not the correct version of the Defendant’s interview of the Plaintiff, the Plaintiff wrote Exhibit ‘PG02’, the Defendant then published Exhibit ‘PG03’, that Exhibit ‘PG03’ did not contain apology, but a follow up”.
Also at page 46 in reaching a verdict, the last paragraph of the trial Court stated:-
“Having found that the publication as contained in Exhibit ‘PG01’ of the 7th March, 1999, is libellous of the Plaintiff, having considered the status in life of the Plaintiff, i.e., a Prince; and the nature of the libel, the mode of spread of the publication and the totality of the conduct of the Defendant, i.e. no apologetic, I hereby award N500,000.00 (Five Hundred Thousand Naira) as damages against the 1st, 2nd and 3rd Defendants jointly and severally in favour of the Plaintiff”.
Considering the initial claim of the Respondent, then Plaintiff at the trial Court, for N5 Miliion (Five Million Naira) claim for damages for libel contained in pages 2 and 3 of Sunday Tribune Edition of in March, 1999, the trial Court after assessment of all the facts before it, awarded to the Respondent, then Plaintiff, the sum of N500,000.00 (Five Hundred Thousand Naira) as damages. The Respondent accepted the assessment and the final award made by the trial Court; hence he did not file a Cross-appeal before this Court challenging same. On the contrary, the Appellants by this appeal, are urging this Court to dismiss the entire award or alternatively, a substantial reduction of the damages awarded by the lower Court.
The next thing to consider is whether this Court can interfere with the assessment of damages done by the trial Court which is the kernel of the Appellant’s appeal before this Court. The Supreme Court has since put this issue to rest in the case of Onwuka Vs. Omugui (1992) 3 NWLR (Part 230) 392 At 400 Ratio 8, per Nnanemeka Agu, JSC(as he then was) when he stated:-
“Section 16 of the Court of Appeal Act, 1976, as indeed Section 22 of the Supreme Court Act, 1960, has given to the Court full jurisdiction and powers over such matters as if it were a Court trial. See: on this, Edigbonya Vs. Dumez Nig. Ltd. (1986) 3 NWLR (Part 31) 753; Solel Bonneh Nig. Ltd. Vs. Ayodele & Another (1989)1 NWLR (Part 99) 549 At 559. As such is the position, there is now no need for this Court or Court of Appeal to look at an issue of damages as if it were a sacred cow reserved for the Court of trial. The correct approach ought to be that unless an issue of credibility of witnesses as to damages arises in the proceeding the appellate Court ought, on entering or affirming a judgment in favour of Plaintiff to assess and award damages to which he is entitled. This was infact, the attitude adopted by the Court of Appeal in England per Denning L. J. in Ward Vs. James (1966) 1 Q. B. 273, Pages 301- 303″.
Also, Section 15 of the Court of Appeal Act, 2004, under the general powers of Court of Appeal provides that this Court ………..”general shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a Court of first instance”. The principles upon which an appellate Court will act in reviewing an award of damages are now well settled. An appellate Court is not justified in substituting a figure of its own for that award by the lower Court simply because it would have awarded a different figure if it had tried the case at first instance.
Before the appellate Court can properly intervene, it must be satisfied either that, the Judge in assessing the damages, applied a wrong principle of law, such as taking into account some irrelevant factor or leaving out of account same relevant factor, or the amount awarded is either so ridiculously low or so ridiculously high that it must have been a wholly erroneous estimate of the damage. See:- Flint Vs. Lovelt (1935) 1 K.B. 354 At 360: Agaba Vs. Otobusun (1961) 1 All N.L.R. 299 At 300; Khawam Vs. Chellaram & Sons (Nig.) Ltd. (1964) 1 W.L.R. 711 At 714 (PC); Shodipo & Cor. Ltd. Vs. Daily Times of Nigeria Ltd. (1972) 1 All N.L.R. (Part 2) 406 at Pages 411, 412; His Highness Uyo .I Vs. Nigeria National Press Ltd. (1974) 6SC 103 at Pages 10.5, 106; Samuel Obere Vs. The Board of Management Eku Baptist Hospital (1978) 6 & 7 SC 15 at 24.
I have carefully examined the judgment of the trial Court delivered on the 30/06/2004. I am satisfied that the trial Judge applied the law correctly on the subject of libel, and assessed the damages fairly. The claim of the Plaintiff before him was for the sum of N5 Miliion (Five Million Naira). The trial Judge after a very careful review of the case, assessed damages in favour of the Plaintiff now Respondent at the sum of N500,000.00 (Five Hundred Thousand Naira). I do not find any reason to interfere with the award of damages of N500,000.00 (Five Hundred Thousand Naira) in favour of Respondent, and it remains so before this Court.
On the Issue of Cost of N10,000.00 (Ten Thousand Naira) which was purely an exercise of discretion by the trial Judge, whether this Court can intervene. The Plaintiff now Respondent, in response to the challenge posed by the Appellants on the issue of cost of N10,000.00 (Ten thousand Naira) as being on the high side, stated that the trial Court having examined the cost of filing of the suit which was N5,130.00 (Five Thousand, One Hundred and Thirty Naira) paid by the Respondent vide the receipt No JO 16603 of 5/10/99, and the number of appearance from the inception of the suit till when the verdict was delivered on 30th June, 2004 according to him the trial Court was right to award the cost. The Appellants did not offer any reason to counter this fact by the Respondent, but maintained the cost was too high, and this calls for the intervention of this Court.
This Court stated earlier on that the issue of the cost is purely discretional on the part of the trial Court. Unless shown to be otherwise, the proper role of a Court of Appeal, where there is proper exercise of discretion is not to interfere with the discretion. To do so merely on the ground that the appellate Court would have; exercised the discretion differently, is an assault on justice and not within the statutory powers of the Appeal Court. See:- Hadmor Productions Ltd. Vs. Hamilton (1983) A.C. 191 At 220; Dr. Sola Saraki Vs. N.A.B. Kotove (1990) 6 SCNJ 31 At 57 where it was held:-
“It is well settled that the Court of Appeal cannot set aside a discretion exercised by the High Court because it would have exercise the discretion differently”. See also: Solake Vs. Ajibola (1968) 1 All N.L.R. 46 At 51.
The award of N10,000.00 (Ten Thousand Naira) cost made by the trial Court in favour of the Respondent against the Appellants remains, hence not interfered with by this Court.
On the whole having resolved the Three (3) Issues in this appeal in favour of the Respondent against the Appellants, this appeal fails, and it is hereby dismissed. The judgment of Hon. Justice A. A. Sanda of the High Court of Oyo State sitting in Ibadan in Suit No. 1/694/99 delivered on the 30th June, 2004, is hereby affirmed by this Court. Cost is awarded in the sum of N30,000.00 (Thirty Thousand Naira) in favour of the Respondent against the Appellants.
STANLEY SHENKO ALAGOA, J.C.A.: I read before now the Judgment just delivered by my brother Sidi Dauda Bage (JCA) and I agree that the appeal lacks merit and should be dismissed. I dismiss same and abide by the orders contained in the said lead Judgment including order on costs.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the privilege of reading before now the judgment of my brother S. D. BAGE, JCA just delivered. His Lordship has meticulously considered and resolved all the issues in contention in this appeal. I agree with his reasoning and conclusion. I also dismiss the appeal. I abide by the consequential orders contained in the lead judgment including the order on costs.
Appearances
Mr. S. I. AdepojuFor Appellant
AND
S. O. Olayemi Esquire holding Babatunde Oni’s BriefFor Respondent
