PASTOR BODE AJAYI v. PRINCE SUNDAY AKINWUMI FAYAN (2014)

PASTOR BODE AJAYI v. PRINCE SUNDAY AKINWUMI FAYAN

(2014)LCN/7619(CA)

In The Court of Appeal of Nigeria

On Monday, the 8th day of December, 2014

CA/AK/95/2012

RATIO

TORT: TORT OF DEFAMATION; WHAT THE PLAINTIFF MUST PROVE IN A LIBEL SUIT

However, the position of the law is that defamatory words in a libel suit does not necessarily ground a case of libel, the plaintiff must prove the following to succeed.
(a) Publication of the defamatory matter
(c) The publication must refer to the plaintiff.
(c) The publication must have been made by the Defendants
(d) The publication must be false.
See: Akiti vs. Punch (Nig.) Ltd. (2009) 11 NWLR PG. 296 paragraph 2 – 8.
Also in the case of Federal Mortgage Bank of Nigeria vs. Dr. Adesokan (2000) 11 NWLR (Pt.677) 108 @ 124 – 125 the court held that for an action of defamation to succeed, the plaintiff must prove the following:
(a) Publication of the offending words;
(b) That the words complained of refer to the plaintiff;
(c) That the words are defamatory of the plaintiff;
(d) Publication to third parties;
(e) Falsity or lack of accuracy of the words complained of; and
(f) That there are no justifiable legal grounds for the publication of the words. per. SOTONYE DENTON WEST, J.C.A.

DAMAGES: DAMAGES IN A DEFAMATORY CASE; WHAT THE COURT MUST ENSURE IN THE ASSESSING OF DAMAGES

However, it is trite law that in assessing of damages in a defamatory case, the court must ensure that the award made is adequate to assuage the injury to the reputation, character and pride of the Plaintiff which were violated, See: Sonibare vs. Soleye (2009) 12 N.W.L.R. (Pt.115) 275 @ 283 – 284. And to do this, the court takes the following into consideration, namely:
(1) Conduct of the plaintiff,
(2) The station in life of the plaintiff
(3) The mode and extent of the publication,
(4) The conduct of the Defendant from time to the libel was published right through to the time of judgment.
Also see First Bank of Nig. Plc vs. Mrs. Dibo Abbo (supra) @ 150 D – E. per. SOTONYE DENTON WEST, J.C.A.

JUSTICES

SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria

MOHAMMAD AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

PASTOR BODE AJAYI Appellant(s)

AND

PRINCE SUNDAY AKINWUMI FAYAN Respondent(s)

SOTONYE DENTON WEST, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ondo State in Suit No. AK/134/2010 delivered on 26th March, 2012 by Honourable Justice D. I. Kolawole of the Akure Judicial division (hereinafter referred to as the lower court).

SUMMARY OF FACTS
In an amended statement of claim filed on 27th of June, 2011, the Respondent as the Plaintiff claimed as follows:-
“WHEREOF the Plaintiff claims against the Defendants the sum of N250, 000,000 (two hundred and fifty million Naira) as general and special damages for libel.” (See page 15 Record of Appeal).

In an Amended Statement of Defence dated 20th day of October, 2011 and filed on 21st day October, 2011, the Defendant while admitting paragraph 6 of the Amended Statement of Claim, denied others and while putting the Plaintiff/Respondent to the strict proof of all those denied averments pronounced the claim in the action to be frivolous, scandalous, vexatious, gold-digging.

Parties exchanged pleadings and the case proceeded to trial. The Plaintiff testified through five witnesses while the defence called four witnesses.
Altogether, five exhibits were tendered and marked ‘A’, ‘B’, ‘C’, ‘D’ and E’. At the conclusion of hearing and after the filing and exchange of addresses of learned counsel of either side, the learned trial Judge, in a considered judgment delivered on 26th, March 2012, the lower court observed and decided thus:-
“Having considered the above scenario, I believe a sum of two hundred thousand Naira (N200,000.00) is sufficient to assuage the feeling of the plaintiff. I therefore award the sum of two hundred thousand Naira (N200,000.00) to the Plaintiff and against the 1st Defendant as general damages for the publication of Exhibit B to PW4 and some others which is defamatory of the plaintiff. I assess cost as ten thousand Naira (N10,000.00) and this shall be paid to the Plaintiff by the Defendants.”

Being dissatisfied with the decision, the Appellants here appealed to this court vide a Notice of Appeal dated and filed the 28th day of March 2012, containing 8 Grounds of Appeal.

In similar vein, the Respondent being dissatisfied with the quantum of the Judgment award as being manifestly small, cross-appealed vide a Notice of Appeal dated 21st day of June, 2012 and filed 25th day of June, 2012, containing a sole Ground of Appeal.

The Appellants/Cross-Respondents in compliance with the rules of this court filed their respective Briefs of Argument dated land filed 27th day of September, 2012. The Appellant’s Brief of Argument was settled by TEMITOPE ADEDIPE ESQ. and adopted by BABATOPE FAJIRE. The Respondent also filed their Brief of Argument dated 14th day of October, 2013 and filed on 17th day of October, 2013 in addition to their Cross-Appellant’s Brief of Argument on same date. Both their Respondent’s brief and their Cross-Appellant’s brief were settled by NIRAN DISU ESQ, and adopted by same.

The Appellant’s brief formulated and argued 5 Issues devoid of their particulars for the determination of this appeal, they are:-
“(A) whether there is credible evidence of publication by the Appellant.
(B) Whether there was any evidence before the trial court that the Appellant is literate to read Exhibit B, Ground 3.
(C) Whether the learned trial court was right in making out a case for the Respondent.
(D) whether Exhibit A is a public document required to be certified.
(E) whether the learned trial Judge was right in awarding the sum of established.

In the Respondent’s Brief of Argument, a lone issue was formulated which is:
“whether the trial court is right in holding that Exhibit ‘B’ is libellous and thereby awarding N200,000.00 damages against the Appellant for libel.”

A lone issue was likewise formulated by the Respondent in the Respondent’s cross-appeal Brief of Argument thus:
“Whether the award of N200,000.00 (two hundred thousand Naira) damages for libel by the trial court in favour of the Cross-Appellant is not too manifestly low or small in view of the evidence and finding of the trial court.”

In arguing the 1st Issue, learned counsel to the Appellant began by pointing out that the learned trial Judge relied on the evidence of PW4 in arriving at the conclusion that the Appellant published Exhibit B. he referred to the following pages 25 – 27 of the Evidence of PW4 on the issue of publication while under examination in chief which runs thus:
“… As the issue was ranging, the 1st Defendant brought out a letter from his pocket and he read its contents to my hearing and he also gave me a copy of the letter. He equally gave my friend who went with me and PW2 a copy of each of the letters read:”
“When the 1st Defendant read the contents of Exhibit B, I felt bad about the matter because I believe it affects the character of the plaintiff –
“I know the plaintiff cannot kill anyone/ so I was baffled by the allegation made against him in Exhibit B”
I, PW2, PW2’s father and a friend of mine Johnson were all present when the 1st Defendant distributed Exhibit B to me and gave a copy of the same to others, I cannot read and write but I can sign my name.”
“I remember sometime in 2009, it was in February, the Defendant came to our house…
They spoke with my father… They said they have written a petition and the petition was dropped with my father.”
“This is the copy that was dropped with my father which my father later gave to me.”

The learned counsel for the Appellant argued that the Appellant in reaction to the above quotes denied ever knowing the house of PW2 and further contended that they were not given a copy of Exhibit A by their solicitor. He added further’ that an action for libel must fail if publication of the defamatory matter is not proved by admissible evidence, as the material part of the cause of action in libel is not the writing but the publication of delivery of the libel to any person other than the person injuriously affected. He cited the case of Nsirim vs. Nsirim (1990) 3 NWLR (PT.138) 285 @ 297 – 298; Fawehinmi vs. Akilu (1994) 6 NWLR (Pt.351) 387 @ 424; Douglas vs. Peterside (1994) 3 NWLR (PT.330) 37 @ 48. Counsel therefore submitted that the evidence of publication as proffered by PW4 which was relied upon by the learned trial Judge was not credible and admissible evidence of publication for the following adduced reasons:
(a) PW4 could not read or write and therefore was not in a position to understand what was allegedly read to him.
(b) Evidence of PW4 on publication, circumstances, persons to whom publication was made was completely contradictory to that of PW2.

According to the learned counsel, PW2 had testified to the effect that he was not at home when the publication was made, thus:
“They said they have written a petition and the petition was dropped with my father which my father later gave me.”
And PW4 had contradicted the above statement under cross-examination, by stating thus:
1st Defendant brought out a letter from his pocket and he read its content to my hearing and he also
gave me a copy of the letter. He equally gave my friend who went with me and PW2 a copy each of the letter read.”

The learned counsel stated further that this amounted to contradiction and not discrepancy as held by the learned trial Judge, he cited the case of Osadim vs. Taiwo (2010) ALL FWLR (PT. 534) 146 @ 165 where the court held that:
“Where witnesses of a party gave inconsistent and/or contradictory evidence on … facts, their evidence or the point must be regarded as unreliable and also must be rejected…”

He further argued that since the Appellant contended that he was not given a copy of the letter written by his solicitors and that he does not know the house of Adeloyo Olaleye (PW2), who was alleged to have made the publication, the court was under a duty to review the evidence placed before it and make pronouncement on all adduced sundry issues. He cited the case of Abubakar vs. Chuks (2008) ALL FWLR (PT. 408) 207 @ 237 – 238 where the Supreme Court held that:
“Courts are enjoined that issues raised before them must be pronounced upon.”
He therefore urged this court to re resolve this issue in favour of the Appellant.

ISSUE TWO
Whether there was any evidence before the trial court that the Appellant is literate to read Exhibit B. Ground 3
On this issue, the learned counsel for the Appellant stated that the Appellant who testified as DW2 had elected to speak in Yoruba language because he was not literate in English language and therefore could not read and write, and therefore could not have read the letter to the hearing of PW4.

He contended further that the Appellant’s testimony under cross-examination that he had been a pastor of 20 years calling and was well versed in the Bible having undergone several theological training does not mean that the Appellant was literate in English and no such evidence was availed to prove that the theological training he had were done in English language. He therefore urged this court to resolve this one in his favour.

ISSUE THREE
Whether the learned trial court was right in making out a case for the Respondent.
The learned counsel for the Appellant had this to say that in review of the evidence of PW4, the learned trial Judge stated thus:
“PW4 said he was not happy about the allegation levelled against the plaintiff in Exhibit A and since Exhibit A was written he had reviewed his relationship with the plaintiff as he now considers him in the light of what was written. He does not want to associate with an assassin.”

In further buttress of his argument vis-a-vis the above quote, learned counsel quoted ipsimma verba the evidence of PW4 before the trial court as contained on pages 25 to 27 of the records. This is to the effect that nowhere was it stated inferred or alluded to that PW4 had reviewed his relationship with the Respondent or that he no longer wants to associate with an assassin.

Furthermore, the learned counsel argued that the Respondent in paragraph 8 of the Statement of Claim pleaded and sought to rely on police investigation, findings/report and yet no report was tendered, rather PW3, the investigating police officer (IPO) only testified without tendering the report of his investigation. Counsel submitted that a report of police investigation could not in any way be oral but documentary and the failure of the Plaintiff to produce same either through PW1 or PW3 ought to be fatal to their case especially on the falsity of the content of Exhibit A and he therefore alleged collusion between the police and the Respondent.

On the issue, counsel finally submitted that the evaluation of evidence of PW4 by the trial court that:
“PW4 said he was not happy about the allegation levelled against the Plaintiff in Exhibit A, since Exhibit A was written he had reviewed his relationship with the Plaintiff as he now considers him in the light of what was written. He does not want to associate with an assassin”

and the conclusion that Plaintiff did not plead “written report” amounted to making out a case and imaginary evidence, which are not within the province of competence of the court to evolve a case for parties or by its own (the court) exercise to supply or imagine evidence. He cited the case of Osadim vs. Taiwo (2010) ALL FWLR (PT.534) 140 @ 167 A – B 167 – 1678 E – A.
He urged the court to resolve this issue in favour of the Appellant.

ISSUE FOUR
The learned counsel faulted the lower court’s admission of Exhibit ‘A’, the Appellant Solicitor’s letter to the Divisional Police Officer. Also in same vein, faulted the lower court’s admission of the Exhibit ‘B’, a photocopy of same letter.
He argued that the admissibility of Exhibit ‘A’ and ‘B’ by the lower court as original document which needed no certification ran afoul of Section 102 of the Evidence Act 2011 which provides for documents that qualify as public documents. Learned counsel in furtherance of his argument cited the supreme Court decision in Tabik Investment Ltd. vs. G.T.B. Plc (2011) ALL FWLR (PT.602) 1592 @ 1607 F – G that:
“By the provisions of section 318(h) of the constitution of the Federal Republic of Nigeria; 1999 and section 18(1) of the Interpretation Act, a police officer is a Public officer and so all documents from the custody of the police especially documents to be used in court are public especially documents to be used in court are public document…
…Before a public document can be tendered and accepted by the court it must be certified…”

Learned counsel therefore’ submitted that Exhibits A and B being public documents bereft of certification, their admission in evidence by the lower court was wrong and thereby urged this court to discountenance the said exhibits.

ISSUE FIVE
Learned counsel for the Appellant contended that the trial Judge relied on the evidence of the Respondent under examination-in-chief that:
“I am a trader; I also practice as an agent, am the proprietor of Akinwumi & Sons, I am a member of Jehovah Witness…The petition affected my character as some of my associates now see me as a bad person”
to award the sum of N200,000 “to assuage the injury to the reputation, character and pride of the Plaintiff.” Counsel postulated further that from the totality of the evidence of all the Respondent’s witnesses, its noteworthy that:
a. No iota of evidence that the reputation of the Respondent was lowered in the estimation of any of the witnesses.
b. No single associate of the Respondent testified before the court that the Respondent is seen as a bad person consequent to the Appellant Solicitor’s letter, Exhibit A.
c. Evidence of PW2 and PW4 is to the effect that they still hold the Respondent in high esteem in spite of the Appellant Solicitor’s letter.
d. No credible/Admissible evidence of publication.
Learned counsel hinged this submission on the Supreme Court’s case of Skye Bank Plc. vs. Akinpelu (2010) ALL FWLR (PT. 520) 460 @ 485 G – H where it held that:
“In defamation or libel cases, what is important is the reaction of a third party to the publication complained of. It is not what the Plaintiff thinks about himself, but what a third party thinks of the Plaintiff as regards his reputation. In other words, a person’s reputation is not based on the good opinion he has of himself but the estimation in which others hold him.”

Counsel further cited Ugbomor vs. Hadomeh (1997) 9 NWLR (Pt.520) 307 @ 312, while urging this court to so hold and resolve this issue in the Appellant’s favour, he concluded that the Respondent having failed to adduce any cogent, credible and admissible evidence of publication before the trial court, he urged this court to set aside the judgment of the lower court and allow this appeal.

Learned counsel for the Respondent formulated a lone issue:
Whether the trial court was right in holding that Exhibit ‘B’ is libelous and thereby deserving of the award of N200,000 damages against the Appellant for libel.

According to the learned counsel, there abound abundant evidence before the trial court to show that Exhibit ‘B’ was published, he asserted that PW4 testified that the Appellant along with Tayo Ojo, the 2nd Defendant in the suit did bring out a letter (Exhibit ‘B’) from his pocket and read the contents to him and gave a letter to PW4 and other friends. And that the trial court in reviewing the evidence of PW4 held thus:
“It must however be said that the evidence of PW4 to the effect that it was the 1st Defendant that brought out the letter, read and then distributed it. Although, the 2nd Defendant joined, in instructing the Defendant’s solicitor to write Exhibit A which was published to the police and which I said cannot be a subject of defamation, however the 2nd Defendant did not in any way contribute to the publication of Exhibit B which is the Linchpin of the defamation complaint of the Plaintiff and which I believe is on terrafirma. In view of this, I believe only the 1st Defendant/Appellant is liable for the libel that is contained in Exhibit B. Pages 52 – 53 of the records.

The counsel for the Respondent while urging this court to uphold the findings and decision of the trial court submitted that the evidence of PW4 as to the publication of the defamed material was direct, credible, reliable and satisfactory. He cited the case of Nsirim vs. Nsirim (1990) 3 NWLR (Pt.138) page 285 @ 297; Nzeribe vs. Anyim (2009) ALL FWLR (Pt.488) page 378 @ page 395; Concord Press Nigeria Ltd. vs. Odutola (1999) 9 NWLR (Pt.620) page 578 @ 588.

Also in reaction to the assertion of the Appellant being illiterate and unable to read or write in English Language, and also on the seeming contradiction in evidence of PW4 and PW2. The learned counsel submitted that the evidence before the court was that the Appellant took the defamatory matter, Exhibit B from his pocket and read it to PW4, handed it over to PW4 and others present.
He opined that the pertinent question ought to be whether the Appellant did or did not distribute, circulate and publish Exhibit B to the PW4 and others, which according to him, the answer is yes. As per the issue of contradiction in evidence between PW2 and PW4, counsel submitted that there wasn’t any contradiction between the evidence of PW4 and PW2 as to what transpired, what was brought out and how copies of Exhibit B was circulated, distributed, published to one Johnson and PW2’s father. Also that PW2 was present and testified that copies of Exhibit A & B were given to his father which came to the knowledge of PW2. The fact that PW4 testified that the Appellant gave a copy of Exhibit B to PW2 can only mean that the father of PW2 gave him a copy of Exhibit B. The counsel’ surmised that in any case the court only found there was publication only to PW4. He therefore urged the court to debunk this assertion on contradiction.

He argued further that the position of the Appellant in paragraph 4.01 of his brief that no credible evidence was elicited to show that any copy of the either of Exhibits ‘A’ ‘B’ & ‘E’ was given to him was a deviation from the evidence of DW3 who testified that it was their usual practice to give copies of any letter written on a client’s behalf to that client and further more DW3 under cross-examination agreed that Exhibits A & B were of same origin. ‘H” summed that the totality of the evidence was to the effect that Exhibit A, B, & E emanated from a single source; the chambers of the Appellant’s lawyer. He therefore urged this court to so hold.

On the issue of the lower court not making a finding as to whether or not the Appellant knew the house of PW2. Learned counsel for the Respondent reacted that it was not an issue in the case that rather what was in issue was whether there was indeed publication and who authorised the defamatory material. According to the learned counsel, all the parties live in Akure and do know themselves having been involved in some land disputes, some of which are still before the court.

On the submission by the Appellant’s counsel that the Appellant was not literate in English language; the Respondent’s counsel argument was that the evidence before the lower court showed otherwise, having testified under cross-examination that he was a Pastor of over 20 years, well versed in the Bible and attended several theological training. Counsel summed up that there was no available evidence before the court to demonstrate the Appellant’s inability to read in English language and therefore urged this honourable court to so hold.

Also on the issue canvassed by the Appellant in paragraph 5.3 of his brief that PW4 never did allude in his evidence to any fact that he had reviewed his relationship with the Respondent or that he does not want to associate with an assassin. The learned counsel for the Respondent submitted that from the totality of the evidence before the trial court, PW4 felt bad about the publication as it affects the character of the Plaintiff who on account of the Exhibit was arrested and detained.

Likewise on the issue as canvassed in paragraph 5.4, 5.5, 5.6 of the Appellant’s Brief as to the absence of a police report; counsel asserted that the best evidence in the circumstance was the testimony of the Investigating police officer (I.P.O.) who investigated the contents of Exhibit A and that he gave a detailed account in evidence of how PW2 and the Respondent were arrested in account of Exhibit ‘A’ and that after investigation, found out that the allegation was false, spurious and thereby let the Respondent off the hook.

Reacting to the submissions of the Appellant’s counsel that Exhibit ‘A’ and ‘B’ were public document and being uncertified, their admissibility in evidence was wrong. The learned counsel for the Respondent however opined that Exhibit A being the original letter of petition delivered to the Divisional Police Officer (D.P.C.) and having been placed on subpoena to tender the said letter (Exhibit A) which was complied with, the said letter required no certification.
On the issue of the award of the sum of N200,000 general damages against the Appellant, learned counsel for the Respondent submits that ample evidence abound before the trial court to uphold the judgment and justification of the judgment sum, the lower court having arrived at the award after taking consideration the principles guiding assessment of damages in defamatory cases and libel being actionable per se. He cited the cases of Nsirim vs. Nsirim (supra); Nzeribe vs. Anyim (supra); Oluwole vs. Tom David West (2010) ALL FWLR (Pt.532) page 1643 @ 1648. Furthermore, learned counsel contended that Exhibit B was malicious, untrue in all ramifications and the Appellant through the course of the trial never retracted the false statement nor apologized or showed remorse.

He conclusively submitted that hinged on these circumstances and available evidence before the court, the reputation of the Respondent was considerably lowered and thereby urged this honourable court to so hold and uphold the award of N200,000.00 in favour of the Respondent.

CROSS-APPEAL
The learned counsel for the Respondent formulated a lone issue that:
Whether the award of N20QO00 (two hundred thousand Naira) damages for libel by the trial court in favour of the Cross-Appellant is not too manifestly law or small in view of the evidence and findings of the trial court.

The learned counsel contended that the lower court having observed that the Cross-Appellant is a businessman, who manages a company, an Estate Agent, a member and Elder of Jehovah Witness of many years standing and the Appellant having not shown any remorse or retraction, then the lower court having given all these a thorough consideration (paragraph 53 – 54 of the records) ought to have awarded a higher sum above the award of N200,000. He cited the cases of Aniekan Amos Peters vs. Assistant Inspector General of Police (2001) FWLR (PT. 49) page 1449; U.B.N. Ltd. v. Odusote (1995) 9 NWLR (Pt.553) page 36; Nwobodo vs. C.A. (1998) 6 NWLR (Pt.464) page 658.

More so, the learned counsel for the Cross-Appellant contended that in a claim for general damages, minimum or slight satisfactory evidence could ordinarily be required in proof which the Cross-Appellant has done. Also cited was Narindex Trust Ltd. vs. NICMB Ltd. (2001) FWLR (PT. 49) page 1546 @ 1564.

In his submission, learned counsel opined that the Court of Appeal will not interfere with the findings of the trial court as to the amount of damages unless it is satisfied that the Judge acted on wrong principle of law or that the amount awarded is so high or so low as to make in entirety an erroneous estimate of damages to which the claimant is entitled to. The learned counsel for the Cross-Appellant referred to the cases of Royal Petroleum Company Ltd. vs. First Bank of Nigeria Plc (19997) 7 NWLR (Pt.510) page 584 @ 598; Aniekan Amos Peter vs. Assistant Inspector General of Police (supra).
The learned counsel for the Cross-Appellant also contended that the said Exhibit ‘B’ having brought ridicule and contempt to the Cross-Appellant in the eyes of the PW2, PW4 and the society and in view of the cost of litigation and the decline in the purchasing power of the Naira currency, the award sum of N200,000 as damages is not adequate and therefore urged this court to review upwards the judgment award.

CONSIDERATION AND RESOLUTION
From a careful study of Issues No. one, two, three, four, five (i.e. A – E) as formulated by Appellant in the Brief of Argument, page 2 and 3 and Issue One formulated by Respondent in his Respondent’s Brief of Argument, the issues are virtually the same though couched differently. I therefore find Issue Five as formulated by the Appellant and Issue One by Respondent appropriate and apt for the determination of the appeal.

Taking into consideration, the pleadings, evidence adduced and the judgment, I adopt the sole issue formulated by the Respondent for the determination of the appeal.

I therefore intend in the determination of the appeal to consider the submissions of both counsel and the lower court relevant to the said issues only.

The first limb of the sole issue as formulated by Respondent hinges on the question of the rightness of the court in holding that a case of libel was established against the Appellant at the lower court.

Dictionary of Law 6th Edition by L.B. CURZON defined libel as the publication in permanent form of a statement which tends to expose a person to hatred, ridicule or contempt.
The Black’s Law Dictionary 8th Edition also defined libel as a defamatory statement expressed in a fixed medium, especially writing but also a picture, sign or electronic broadcast.
(2) The act of making such a statement, publication of defamatory matter by written or printed words by its embodiment in physical form or by any other form of communication that has the potentially harmful qualities characteristics of written or printed words.

Now before delving into the probity or otherwise of the said libel material/labeled ‘A’, we ought to know the words as contained therein, they are:
“…Their lives have been under serious threat by Adeloye Olaleye and Mr. Sunday Fayan who have vowed to ensure the termination of the lives of our client.

The grouse of these hoodlums borders on a land dispute which was resolved in favour of our client. Also the said Adeloye Olaleye is standing trial at the Chief Magistrate Court, Akure for the offence of assault occasioning harm, which our client are principal witness.
We most humbly seek your swift action in bringing these culprits to book as our client can no longer sleep in their respective houses…” (Underlined for emphasis)

From the face of the above excerpts, purport of the above is that the lives of the petitioner(s) is being threatened. Furthermore, the use of the underlined words, hoodlum and culprit (in reference to the Respondent) is to the effect that the lives of the petitioner are being threatened by a violent criminal gang. See: Oxford Advanced Learner’s Dictionary, 7th Edition by A.S. Harnby.

Having noted earlier that the words in Exhibit ‘A’ are defamatory, it is instructive to also note that the Appellants in their testimonies conceded to instructing their lawyer to issue Exhibit ‘A’ and it was on the basis of Exhibit ‘A’ that PW2 was arrested (see page 32 and 34 of Record). However, the court have held that an alleged publication or libelous words made to the police in the course of lodging a complaint with the police cannot form the basis of a claim for libel. See: Monday Nwadinobi vs. Mrs. Mary Botu (2000) 9 N.W.L.R. (Pt. 672) 220 @ 229. Therefore, if the libelous words made to the police by the Appellants does not constitute a claim for libel, what does?

In Nsirim vs. Nsirim (1990) 3 NWLR (Pt. 738) 285 @ 298, a publication for purpose of libel was said to be the reduction of libelous matter to writing and its delivery to any person other than the person injuriously affected thereby. It went further to state that the name of the person to whom delivery of the libelous document was made must be pleaded. The learned counsel for the Respondent in asserting his pleading as contained in paragraph 13 of the Amended Statement of Claim that the Appellants published and distributed the libelous words to Adeloye Olaleye and the general public.

On the part of the Appellant their contention was that apart from Exhibit ‘A’; which was given to the police, in exercise of their constitutional right (which I agree), they contended that there was no other libelous document published nor circulated to some third party either in photocopies or any form. To buttress their point further, they sought to rely on the evidence of DW3, the litigation officer of the law firm who wrote the letter on their behalf.

In my humble opinion the evidence elicited from DW3, at best pales in the light of the testimonies of PW2 and PW4, not only was DW3 certain that Exhibit A (letter address to the police) and Exhibit B (letter allegedly given to third parties, DW2 and PW4) are of the same origin. He also testified that it was their usual practice to give a copy of any letter written on behalf of our clients to such clients. (See page 33 and 34 of Records). Now whether the Appellant exercised this right to a copy of his authored work or not is not an exercise for this court but would have been the expectations of this court being the reasonable thing to do.

On the other hand, the evidence of PW4 is clear that he was given Exhibit ‘B’ by the 1st defendant (Appellant) whether the Appellant was literate in English and could read and write is of no material at this moment, for having instructed his lawyer to write the petition, he had an understanding of the contents and that was paramount. In fact, the learned trial Judge had this to say
“The available evidence shows that he is not literate. He has been a pastor for twenty years, versatile in Bible verses and he had undergone several theological trainings. I am inclined to believe that he is lettered, although he may not be too lettered. The Defendant also did not impress me at all about their credibility.
They deny obvious facts. I believe the Defendants were given a copy of Exhibit A and the Defendant went to the house of the father of PW2 where the 1st Defendant read a copy of the letter, Exhibit A and subsequently distributed a copy to PW4 and some others. I therefore hold that the Plaintiff has proved that there was publication by the Defendant of Exhibit A to other people who are not policemen.”

Though quite frankly, in my humble opinion, it is not enough to adjudge a man literate in English language by the number of theological trainings he had undergone or years put in biblical works, as these could have been done in other languages. However, I would not look away from the fact that in evaluation of evidence of parties, the trial court is enjoined to consider the totality of evidence (demeanor, inclusive) led by each party. It then places it on the imaginary scale of justice to see which of the two sides weigh more creditably than the other.
This evaluation of evidence entails the assessment of same as to give value or quality to it, rather than swallow the story of one party, hook, line and sinker.
Such evaluation of evidence should necessarily involve a reasonable preference of one version to the other. See: LAGGA vs SARHUNA (2008) NWLR (PT.114) 427 @ 460, para E – H. In my estimation this is what led the trial judge to arrive at the above conclusion on the first ingredient of proof in a case of libel and I totally align myself as well, I do not see any contradictory evidence as alleged by the Appellant material enough to dislodge the credibility of the evidence of the Respondent.

On prove of the second ingredient of libel, it is a clear case of res ipsa loquitor as the name of the Respondents were clearly spelled out in the libellous material.
Also, on the third ingredient, it has been established earlier that the words are defamatory and therefore requires no further deliberation.

Also on the falsity or lack of accuracy of the offending words, PW3 who was the police officer instructed to investigate the petition (Exhibit A) in his testimony said “after his investigation he discovered that the allegations contained in the petition were spurious as the Plaintiff had no case to answer.”

It is curious to note that the response of the Appellant to this was the allegation of collusion between the investigating police officer and the Respondent without any evidence adduced. In any case the court is not inclined to giving its decision based on the ‘ipse dixit’ for anybody could do that.

Consequently, in the overall sense of it all, I am firmly of the view that the lower court clearly and unequivocally established a case of libel for the Respondent.

On the second leg as regards the rightfulness or otherwise of awarding the sum of N200,000.00 (two hundred thousand Naira) to the Respondent, it was the learned counsel for the Appellant’s argument that the trial Judge relied on the evidence of Respondent in awarding the sum of N200,000.00 (two hundred thousand Naira) thus:
“I am a trader, I also practice as an estate agent, I am the proprietor of Akinwumi & Sons, I am a member of Jehovah Witness. The Respondent went further in his examination-in-chief that: “The affection affected my character as some of my associates now see me as a bad person.”

Counsel for the Appellant contended that what was important in a libel case was the reaction of a third party to the publication complained of and not what the Plaintiff thinks of himself in assessing of damages.

On the other hand, the counsel for the Respondent and the learned trial Judge both submitted that libel is actionable per se and being a wrong that the law imputes damage, it is not necessary to prove actual damage or injury to the reputation of tire Plaintiff before damages will be awarded.

Clearly, the learned counsel for the Appellant underscores the fact that once an action for libel is proved, the court inputs damages and in doing so the court takes into consideration
(a) The conduct of the Plaintiff;
(b) The station in life of the Plaintiff;
(c) The mode and extent of the publication;
(d) The absence or refusal of any retraction or apology;
(e) The conduct of the Defendant from time the libel was published through to the time of judgment.
See: First Bank of Nigeria Plc vs. Mrs. Dibo Aboko (supra) @ 150 D – E.
From the foregoing, it is clear that the assessment of damages in a libel action is usually subjective and left at the discretion of the court. ACB Ltd. vs. Apugo (1995) 6 NWLR (PT. 399) 65 @ 88.

On the second leg of this issue, I therefore resolve in favour of the Respondent and it is according so resolved. The several ingredient and limbs of the sole issue having been resolved in favour of the Respondent, the appeal of the Appellant should be dismissed.

CROSS-APPEAL
The Respondent cross-appealed on the following ground reproduced immediately hereunder without the particulars. Whether the award of N200,000.00 (two hundred thousand Naira) damages for libel by the trial court in favour of the Cross-Appellant is not too manifestly low or small in view of the evidence and finding of the trial court.

It was the Cross-Appellant’s contention that evidence abounded before the trial court to show that the Cross-Appellant is a businessman, the Managing Director of a company, Estate Agent, member of Jehovah Witness of many years and a Church Elder. Also that there has not been any retraction of the defamatory material nor an apology tendered rather the Cross-Respondent I still of the firm belief in the truthfulness of the defamatory words.

My honest reaction to this is that though it is a notorious fact that people everywhere are as hungry for respect as they are hungry for bread, there isn’t really a fixed price for the value of a man’s true worth in award of damages in libel cases. A popular saying is that character makes the man therefore if one’s character or reputation has been injured, is there really a price to adequately return it to status quo ante? I dare say NO. However, it is trite law that in assessing of damages in a defamatory case, the court must ensure that the award made is adequate to assuage the injury to the reputation, character and pride of the Plaintiff which were violated, See: Sonibare vs. Soleye (2009) 12 N.W.L.R. (Pt.115) 275 @ 283 – 284. And to do this, the court takes the following into consideration, namely:
(1) Conduct of the plaintiff,
(2) The station in life of the plaintiff
(3) The mode and extent of the publication,
(4) The conduct of the Defendant from time to the libel was published right through to the time of judgment.
Also see First Bank of Nig. Plc vs. Mrs. Dibo Abbo (supra) @ 150 D – E.

It is noteworthy that there has not been any retraction of the defamatory material nor an apology tendered by the Cross-Respondent rather he still maintains the firm belief of the truthfulness of the defamatory words. It would therefore be manifestly unfair, to the Respondent if the award of N200,000.00 (two hundred thousand Naira), which is just about one percent of the amount sought, i.e; N250,000,000.00 (two hundred and fifty Million Naira) is left unreviewed.
I therefore resolve the lone issue in the cross appeal in favour of the Respondent. The award is reviewed to the sum of N750,000.00 (seven hundred and fifty thousand Naira) to the Cross-Appellant and against the Cross-Respondent as general damages for the publication of Exhibit B to PW4 and others.

On the other hand, having resolved the lone issue as formulated by the Respondent in favour of the Respondent, this appeal is hereby dismissed and the judgment of the lower court delivered by Hon. Justice D. I. Kolawole of Ondo State High Court of Justice, Akure Judicial Division delivered on the 26th day of March, 2012 is hereby affirmed by me with the payment of the reviewed award of N750,000.00 (seven hundred and fifty thousand Naira) against the Appellant and in favour of the Respondent as general damages.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree.

JAMES SHEHU ABIRIYI, J.C.A.: I agree.

Appearances

Babatope Fajire Esq. for Appellant/Cross-RespondentFor Appellant

AND

J.O. Disu and F.O. Ogun for Respondent/Cross-Appellant.For Respondent