PUNCH NIGERIA LTD. & ANOR v. B.E. EYITENE
(2012)LCN/5157(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2001
CA/B/268/92
RATIO
THE POSITION OF THE LAW ON THE FORMULATION OF MORE ISSUES THAN THE GROUND OF APPEAL
The formulation of more issues than the ground of appeal is against the rules of brief writing as an issue must arise from a ground of appeal. It is now settled that any issue for determination formulated, in either the brief of argument of the appellant or the respondent, in any case must be based on and be pertinent to the ground or grounds of appeal that give life to the appeal. If the issue or issues do not conform with the grounds of appeal, then they cannot stand for being irrelevant. It follows, therefore, that any argument in the brief based on the issue for determination is equally irrelevant to the appeal. See Omagbemi v. Guinness (Nig.) Ltd. (1995) 2 NWLR (Pt.377) 258 at 266-267. PER. BA’ ABA, J.C.A.
THE POSITION OF THE LAW ON THE DEFENCE OF JUSTIFICATION TO SUCCEED
For the defence of justification to succeed, it is not necessary to prove the truth of every word comprised in the alleged libel. It suffices if the defendant establishes that the main substance of the libelous statement is true and justified. The defendants need not justify statements or comments which do not add to the sting of the charge or introduce any matter by itself actionable. See Sutherland v. Stapes (1925) AC 47. The general principle of law is that the words complained of and published must be construed as a whole. See Okolo v. Midwest Newspapers Corporation & Ors. (1977) I SC 33; Lewis v. Daily Telegraph Limited (1964) AC 234. See also paragraph 361 of Gatley on Libel and Slander (8th Edition) page 154 where the author stated the law thus:- “361. Substantial Justification sufficient. It is not necessary to prove the truth of every word of the libel. If the defendant proves that “the main charge, or gist, of the libel” is true, he need not justify statements or comments which do not add to the sting of the charge or introduce any matter by itself actionable. “it is sufficient if the substance of the libelious statement be justified; it is unnecessary to repeat every word which might have been the subject of the original comment. As much must be justified as meets the sting of the charge, and if anything be contained in a charge which does not add to the sting of it, that need not be justified.”
Paragraph 364 of Gatly on Libel and Slander 8th Edition at page 155 reads:- “364. Inaccuracy of detail: Again, if the defendant can prove that the main charge or gist of the libel is true, a slight inaccuracy in one or more of its details will not prevent him from succeeding in a defence of justification.” PER. BA’ ABA, J.C.A.
JUSTICE
NIKI TOBIJustice of The Court of Appeal of Nigeria
BABA ALKALI BA’ ABAJustice of The Court of Appeal of Nigeria
KUMAI BAYANG AKAAHSJustice of The Court of Appeal of Nigeria
Between
1 PUNCH NIG. LTD.
2. ADE FAGBEMIAppellant(s)
AND
B.E. EYITENERespondent(s)
BA’ ABA, J.C.A. (Delivering the Leading Judgment): The plaintiff, now respondent took out a writ of summons in the High Court of the defunct Bendel State now Delta State of Nigeria, sitting at Warri, in which the following reliefs were claimed against the defendants now the appellants, jointly and severally,
“For the sum of N1,000,000.00 (One Million Naira) being damages for libel falsely and maliciously published through out the Federal Republic of Nigeria and far beyond by the defendants of and concerning the plaintiff in and contained on page 1 of the Punch Vol. 8 No. 14, 146 of Monday, 16th January, 1984 captioned FRONT PAGE COMMENT, Sad memories of State Police Commissioners, accusing the plaintiff of bastardizing democratic institutions including the judiciary in Anambra State, and imposing his party on the people of Anambra State.”
The plaintiff/respondent also cross-appealed against the judgment of the trial court.
Pleadings were ordered, filed and exchanged and amended. The defendants amended their statement of defence thrice while the plaintiff, amended his reply to the further amended statement of defence on 30/11/90. The case went to trial on the statement of claim dated 21/7/86, further statement of defence dated 22/10/90 and amended reply dated 30/10/90.
At the hearing of the case, the plaintiff, now respondent testified in support of his claim, called one witness and tendered ten documents. The defendants now appellants on the other hand called one witness and tendered 4 documents in their defence. At the conclusion of the evidence of the parties and address of counsel, in a reserved judgment delivered on 7/5/91, the learned trial Judge, found in favour of the plaintiff/respondent against the defendants/appellants and granted the following reliefs against the defendants/appellants:-
“In the result, I hereby enter judgment in favour of the plaintiff against the defendants jointly and severally for the sum of N80,000.00 (Eighty Thousand Naira) damages for the libel.”
Dissatisfied with the judgment of the trial court, the defendants lodged an appeal against it to this court, the notice of appeal at pages 151-154, contains only one ground of appeal as follows:-
“The learned trial Judge erred in law & misdirected himself on the facts when he held that the statements made by the defendant concerning the plaintiff were defamatory of the plaintiff.
Particulars
(i) The learned trial Judge though finding that the statements were capable of defamatory meaning failed to enquire as to whether from the evidence the plaintiff was capable of being defamed.
(ii) Evidence abound at the trial which established the kind of reputation possessed by the plaintiff as a Commissioner of Police.
(iii) The evidence available to the trial court clearly established that the plaintiff had no reputation that could be defamed.”
The brief facts of the case of the plaintiff/respondent as gathered from the pleadings and evidence adduced before the trial court runs thus:
The plaintiff, a retired superior Police Officer, rose to the rank of Commissioner of Police before he was retired in January, 1984.
According to the plaintiff, in 1980, he was the Commissioner of Police in charge of Administration at the Headquarters in Lagos until January, 1981, when he was transferred to Anambra State to take charge of the Anambra Police Command. He handed over as the Commissioner of police in charge of Anambra State to his successor on 30/10/82 and proceeded on leave. He left Anambra State finally for good in December, 1982.
On resumption of duty after his leave, which lasted till February, 1983, the plaintiff/respondent was posted to the Force Headquarters, Lagos. The plaintiff remained in the Force Headquarters, until his retirement. The plaintiff claimed that the defendants falsely and maliciously printed and published concerning the plaintiff/respondent the words complained of in the PUNCH Newspaper of the 16th day of January, 1984 vol. 8, No. 14,146. As a result of the said publication, the plaintiff/respondent, claimed that he was injured as to his reputation, character and credit. According to the plaintiff/respondent, the publication has brought him into a public scandal, odium and contempt hence the institution of the action against the defendants/appellants, leading to this appeal.
The case of the defendants/appellants on the other hand, is as follows:-
The defendants, that is the Punch Nigeria Limited and Ade Fagbemi, generally denied the claims of the plaintiff and stated that the publication complained of is true in substance and fact.
According to the defendants. the plaintiff did not suffer any loss of reputation and injury and that the plaintiff could not have suffered any injury or loss of reputation as a result of the alleged publication.
Briefs of arguments in respect of the appeal and cross-appeal were filed and exchanged between the parties in accordance with the rules of practice and procedure of this court.
When the appeal came up for hearing on 25/4/2001, counsel for the parties adopted and relied on their briefs in respect of the appeal as well as the cross-appeal. In their brief filed by the respondents/appellants, the following issues were formulated for determination in this appeal:-
“(i) Whether a person with bad reputation in one area can claim to have been defamed by statements (albeit defamatory) made in respect of that area where his bad reputation is already established?
(ii) Should the bad reputation of plaintiff not count against him in an award of damages for defamation?”
On his part, the plaintiff/respondent formulated one issue for determination in this appeal which reads:-
“Whether the statement made by the defendants/appellants concerning the plaintiff/cross-appellant/respondent is defamatory that is to say, neither true nor justifiable.”
Learned counsel for the appellant. Mr. Adebayo Osuntogun, in the appellants’ brief dated 2/7/98, on issue No.1, submitted that a person who sues for defamation must establish that he is otherwise of good reputation. He said this follows from the definition of defamation as the communication “to the mind of another matter untrue and likely in the natural course of things to substantially disparage the reputation of “another” referring to Clerk and Lindsel on Torts 14th Edition at page 495. It is submitted that the evidence before the trial court as contained in Exhibits D3 and D4 were to the effect that:
(i) The plaintiff willfully disobeyed court orders as Commissioner of Police in charge of Anambra State Command.
(ii) A Board of Inquiry set up by the Police Authorities upon allegations of corruption made against the plaintiff whilst he was Commissioner of Police in Anambra State and the report of the enquiry found the allegations were true, referred to pages 290-297 of Exhibit D4.
(iii) There was a rise of crime were in Anambra State during the plaintiff’s tenure.
(iv) The plaintiff was found to have collaborated with smugglers during his tenure as Commissioner of Police Anambra State.
(v) As Assistant Inspector General of Police stated that the Anambra Police Command stank of corruption during the plaintiff’s tenure.
Learned counsel for the defendants/appellants further stated that all these allegations are contained in public documents published to persons who know the plaintiff. He further submitted that the publications of the defendants which merely alleged that the plaintiff “bastardised” democratic institutions such as the courts during his tenure in Anambra State is very mild when compared to the negative reports on the plaintiff during the period. Learned Counsel pointed out that the learned trial Judge, placed much emphasis on the mere statement of Mr. Etim Inyang an Assistant Inspector-General of Police at the time that the allegations were “hearsay” and the certificate of service of the plaintiff issued on the 27th of December,1985, almost two years after the publication complained of by the plaintiff. He expatiated that what is material is the plaintiff’s reputation at the time the publication is made and not what whitewash was subsequently carried out years later, citing the English case of Dingle v. Associated Newspapers (1964) AC 371, 375.
It is the submission of the learned counsel for the defendants/appellants that the evidence before the court was that at the time of the publication the records of the plaintiff clearly showed that he had no record to protect and referred to Gatley on Libel & Slander Articles 2,39,40 and 42 in support of his submission.
Learned counsel contended that a plaintiff who brings an action in defamation puts his reputation in issue and a defendant in mitigation of damages may give evidence that the plaintiff bears bad character, citing authorities in support of his contention.
Furthermore, counsel submitted that the evidence of the plaintiff’s bad reputation as a Police officer was sufficient to mitigate the damages awarded by the learned trial Judge but the learned trial Judge din not even consider that in his judgment.
Learned counsel for the defendants/appellants, urged us to resolve the issues in favour of the appellants and allow the appeal.
Learned counsel for the plaintiff/respondents, Mr. Henry I. Yekovie, in reply in the respondent’s brief filed on 11/5/96, commenced his submission by reproducing a portion from Exhibit “P1”, the publication complained of by the plaintiff/respondent. He submitted that the learned trial Judge was justified in holding and/or coming to the conclusion that the statements were defamatory of the respondent in that the respondent led copious uncontroverted evidence in proof that the statements contain in Exhibit “P1” were defamatory of the respondent. That the learned trial Judge made findings of fact and held that the words published in Exhibit “P1” were capable of bearing defamatory meaning in the mind of reasonable person as they needed no extrinsic evidence to impute defamatory meaning to the said publication. It is further submitted that the publication was defamatory of the respondent in that it imputed corrupt and is honourable conduct by the respondent.
According to the learned counsel for the plaintiff/respondent, the allegations against the respondent in Exhibits “D3” and “D4” cannot be used against the respondent as proof of bad reputation as the then Assistant Inspector General of Police, Mr. Etim Inyang described the allegations as “pieces of hearsay” which cannot be corroborated and are inadmissible in evidence”, thus exonerating the respondent.
It is argued that Exhibit “P10” supercedes Exhibits “D3” and “D4”.
That Exhibit “P10” is based and derived from Exhibits “D3” and “D4” while Exhibit “P10” the certificate of service was signed by the then Head of State and Inspector-General of Police. Learned counsel submitted that it is settled law that for a defence of justification to be sustained, the appellants must not only prove that the facts are truly stated, but also the comments made upon them are correct, citing Fredrick Obasuyi v. Luke L. Ezeighu (1991) 3 NWLR (Pt.181) 585 to buttress his submission. He further submitted that the appellant’s brief does not successfully show the plea of justification as such as the appeal must fail, He in conclusion urged us to dismiss the appeal. Although the learned counsel for the defendants/appellants clearly stated in the appellant’s brief that the appellants appealed to this court on one ground of appeal, he nevertheless proceeded and formulated two issues for determination in this appeal based on the only one ground of appeal.
The formulation of more issues than the ground of appeal is against the rules of brief writing as an issue must arise from a ground of appeal.
It is now settled that any issue for determination formulated, in either the brief of argument of the appellant or the respondent, in any case must be based on and be pertinent to the ground or grounds of appeal that give life to the appeal. If the issue or issues do not conform with the grounds of appeal, then they cannot stand for being irrelevant.
It follows, therefore, that any argument in the brief based on the issue for determination is equally irrelevant to the appeal. See Omagbemi v. Guinness (Nig.) Ltd. (1995) 2 NWLR (Pt.377) 258 at 266-267.
For the reasons stated above, I will proceed to determine the appeal based on issue No.1, only.
As parties as well as the court are bound by pleadings in a civil case, such as the one under consideration, I consider it appropriate to start the determination of this appeal by first reproducing the relevant paragraphs in the statement of claim and the further amended statement of defence, relied upon by the parties in support of their respective case. See Commissioner for Works, Benue State v. Devcon Development Consultants Ltd. (1988) 3 NWLR (Pt.83) 407; Nigerian Housing Development Society Ltd. v. Mumuni (1977) SC 57; A.C.B. Ltd. v. A.-G., Northern Nigeria (1967) NMLR 231; Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1.
Paragraphs 7, 8, and 9 of the statement of claim are as follows:-
“7. In the issue of the “Punch” Vol. 8 No. 14,146 dated Monday, 16th January, 1984 on the front page thereof, under the heading:
Front Page Comment Sad Memories of State Commissioners.
The defendants falsely and maliciously printed and published or caused to be printed and published of and concerning the plaintiff the following words, that is to say:-
“If there is anything that has started to arouse the cynicism of many countrymen about the genuineness of purpose of the military administration, it has been the attitude of the regime to the Nigerian Police Force.
APART from causing the resignation of Sunday Adewusi, the man who as the Inspector-General symbolised in all its forms, all the sadistic outbursts of the Shehu’s tortuous four years of occupation, the new Federal Military Government, has tended to take the corrupt ridden force as part and parcel of the new administration.
This is as naive as it can be disastrous for a regime in desperate need of legitimacy and accountability.
To the ordinary man, there is no way one can separate the morbid abhorrence for Shehu Shagari’s reign of terror from the Adewusi inspired macabre adventure of the Nigeria Police Force.
SHAGARI’S vandalisation of the economy and the resultant harshly intolerable scenario were sordid and harrowing enough for the masses of our people. This fact of economic adversities can never be the crucial determination of Nigeria’s loss of faith in the democratic process.
The crucial factor lies in the gestapo-like operations of Adewusi and his much dreaded force which had made non-sense of the fact that Nigeria was operating a constitutional government.
Besides, the daylight robbery of ’83 elections put paid to the people’s faith in any democratic elections in the country.
Thanks to Sunday Adewusi and those of his ilk in the force.
In a classical display of the decaying national ethoes of the Shagari’s four-year misadventure, Adewusi was unable to differentiate between his role as the Inspector General of Police for Nigeria, and that of Adewusi the card holding member of the National Party of Nigeria. The story was once narrated on highly reliable authority how Adewusi once had the day in a muscle flexing between him and Adisa Akinloye, the Chairman of the defunct NPN, and one of the most wanted fugitives in the country today.
The bone of contention was the debate of who of them played the most hideous role in the criminal falsification of the people’s will in Oyo State.
ADEWUSI was not only able to convince Shehu Shagari, of unmourned memory that it was he and not Akinloye that delivered Oyo to the National Party of Nigeria but was able to force his girl friend on the President in preference to Akinloye’s choice.
Neither was Adewusi alone in his brazen show of shame by men of the force.
Except for Lagos where the commissioner stood firmly against any foul play, the story of NPN
shameless manipulations of the ’83 elections will be meaningless without highlighting the devilish role of police commissioners. A cursory review will illustrate this point. In Anambra State, Bishop Eyitene crowned his bastardisation of democratic institutions in the state, including the judiciary with his fact of imposing his party on the people of Anambra State.
In Borno State the man whose fanatical commitment to the National Party was so intense that he once reported to have subjected the State Governor, Goni to physical pummeling.
His avowed wish to make Borno State a domain of his party can be discerned in the disgraceful manner he stopped Dr. Nnamdi Azikwe and his entourage which included Jim Nwobodo of Anambra State, and even the Borno State Deputy Governor Ibrahim Anas, from campaigning for the defunct Nigeria People’s Party in the state.
And in Oyo State, after setting the unbeatable record in debauchery, the then Police Commissioner of Oyo State, Umoru Omolowo, transferred the baton to a man who was more NPN than himself.
Those who are critical of this claim should explain why NPN top notchers – Akinloye and -Richard Akinjide- who were being guarded by a battalion 246 of Police men at the time of the coup, suddenly became so inconsequently obscure as to have passed through the fotress of endless road blocks unnoticed and unrecognized.
Yet Nuhu Alihu was efficient enough to usurp the power of the military governor of Oyo State to settle an old score with the political forces.
In any case, is he not the same Nuhu Alihu who contested the NPN primaries against Awwal Ibrahim in Niger State, or is it a sheer coincidence?
The public deserves a clarification.
And in Ondo State, Police Commissioner Sheidu, the man, in an attempt to bring that state under the NPN empire subjected the people to all sorts of unprintable humiliations. He is in command. He therefore has an ample opportunity to complete his hitherto unfinished job. The same deadly partisanship is repeated in the rest of the country.
No matter how one looks at it, the present composition of Police Commissioners is no more than an extension of the regime of the National Party of Nigeria.
The regime’s futile attempt to pick a non-partisan police officer as Rivers State Governor illustrates the point.
In the face of intense public outcry, the Supreme Military Council dropped Netima on the ground that his wife was the personal secretary to ex-NPN Governor of the State, Melford Okilo.
But the wisdom of that decision is called into question by the choice of Oyakhilome, the man who was recently seriously indicted by the Supreme Court for the questionable role he played as the Imo State Police Commissioner in the criminal manipulation of elections in the Umuahia Senatorial Division of the State.
To continue to ignore this fact about the Nigeria Police may mean either of two things.
That the set of military rulers that raised the hope of Nigerians for a new lease of life on December 31 was not more than a continuation of the old order and the coup itself was no more than the fulfillment of the threat by some NPN stalwarts during the last election that they would rather hand over to the army than allow the democratic process to take its course.
And if we see the military men as the promised messiah, then the involvement of the police leadership in the house cleaning operations amounts to a monumental blunder and unpardonable ineptness.
It means the soldiers are trying to achieve a revolutionary change with a reactionary institution.
We sincerely hope the whole exercise is not afterall, a change of guard.
This is not only a mission doomed to fail but it is outrightly suicidal.
The precarious nature of our situation is clearly evident.
Apart from the pervasive nature of its influence within, the NPN has built during its four-year dammable reign, connection powerful enough to destabilise any regime.
The threat becomes more real when it is realised that the major actors in the NPN vicious game are now beyond our territorial waters.
These added to the immense financial resources at their disposal put them at a most vantage point.
That is why the first step in the current revolution is the dismantling of the existing reactionary Police States command which have done their damnest to plunge the nation into its present chaotic and ruinous mess.
The PUNCH is of the strong opinion that it will not be enough to probe the activities of these NPN ragtags in uniform of the Police Force but also send them packing as they constitute a menacing influence on the polity.
The PUNCH is worried about the gradual but perceivable dent the corrosive and despicable image of the Police Force is cutting on the renascent corporate image of the new military administration.
We therefore call for an immediate and ruthless dismemberment of the top notchers of the Police Force ranging from Chief Superintendents, Commissioners who may at one time or another had had something to do with the Police administration in any part of the country. They are a malignant pain on the neck of the nation.
The PUNCH owes the new military administration a sacred duty to advise it aright at all times since it mirrors the yearnings and groanings of the society.
There must be no room for the cysts in the new administration.
The police commissioners or assistant police commissioners or even the Chief Police Superintendents must be removed like a malignant boil. The country can do without them.
And today.
It will be in the interest of the new Federal Military Government to hearken to our advise and warnings.
IT can ignore them to its peril.
WE hope not.”
8. By the words printed and published as above, the defendants meant and were understood to mean that:-
(i) The plaintiff played a devilish role in the alleged NPN shameless manipulations of the 1983 election;
(ii) The plaintiff was a member of the NPN party in 1983 and imposed the party on the people of Anambra State of Nigeria.
(iii) the plaintiff bastardized democratic institutions in Anambra State, including the judiciary.
9. Furthermore, and/or by way of innuendo, the said words printed and published by the defendants meant and were understood to mean that:-
(i) The plaintiff rigged the 1983 elections in favour of the NPN party in Anambra State, and has therefore been guilty of the electoral law as well as the criminal laws of Nigeria;
(ii) The plaintiff has been an unpatriotic citizen/officer and/or not a law-abiding individual.
(iii) The plaintiff has been guilty of shameful and/or dishonourable or oppressive or undemocratic conduct.”
The relevant paragraphs of the further amended statement where issues were joined between the parties are paragraphs 5, 8, 9 and 12 which reads as follows:-
‘(5) The defendant shall further establish that paragraph 7 which CONTAIN THE FOLLOWING WORDS “His bastardisation of democratic institutions in the state including the Judiciary …” is true in substance and in fact.
(8) The defendants say that they were not moved by malevolence or spite in the alleged publication.
(9) The defendants will prove that the plaintiff did not suffer any loss of reputation or injury and that he could not have suffered any injury or loss of reputation as a result of the alleged publication and that the injury allegedly suffered in paragraphs 12 and 13 of the statement of claim were nothing but mere speculations.
(12) The defendants will rely at the trial of this action on the contents of the personal file of the plaintiff, a record kept by the Force Headquarters from the tenure as the Commissioner of Police in the Anambra State Police Command till his retirement from the Nigeria Police Force.”
The evidence of the plaintiff/respondent is contained at pages 1920 of the record and part of the evidence reads:-
“The words published about me were false. The defendants knew that the words were false and they deliberately published same. The defendants appeared to maintain a stand, that they published the truth of this matter and up till now there was no letter of any apology from them. They had refused or neglected to withdraw the words complained of. This is the copy of the letter forwarded to the defendants on my behalf.
The publication injured my character, credit and reputation and brought me into public scandal, odium and contempt. I am therefore claiming the sum of N1,000,000.00 (One Million Naira). I am sure that I was retired from the Police Force because of this publication as I got my letter of retirement a few days after the said publication.”
On cross-examination at page 53 of the record, the plaintiff/respondent, said:-
“I see Exhibit “P1″. This is the publication which forms the basis of this claim. I was not the only Police Officer mentioned in the said publication.
I am aware that Oyakhilome was a Police Commissioner in Imo State. I am aware that Oyakhilome is still a public servant up till this day.”
At pages 66-67 of the record the only witness for the defendants, one Boniface Ezike, testified for the defendants and tendered Exhibits “D3” and “D4”. the personal files of Mr. Eyitene, the plaintiff/respondent while Exhibit “P10” was tendered through him by Dr. Odje, SAN, the counsel for the respondent during cross-examination which runs thus:-
Cross-examination: There is always a certificate of service issued to a retiring Police Officer. I agree, that such certificate of service takes into account the contents of the personal files.
It is true, that such Certificate of Service is signed not only by the Inspector-General of Police but also by the Head of State. It is true, that the Head of State is the Head of the Police Council. I agree, that the Inspector-General is an important member of the Police Council.
I see this document now shown to me. It is the service certificate of the plaintiff.
Dr. Odje (SAN) seeks to tender the said document in evidence.
Mr. Osuntogun objects to its being tendered as it was being brought out for the first time.
Dr. Odje (SAN) says that the document was based on Exhibits D3 and D4.
Court: Mr. Osuntogun’s objection is overruled. The witness had told the court that the certificate of service was based on the contents of the personal files Exhibits D3 and D4.
The Certificate of Service is admitted in evidence and marked as Exhibit “P10″.
At pages 109-110 of his judgment, the learned trial Judge, said,
” Now, reading the said publication as an ordinary and reasonable man, the ordinary, natural or primary meaning or imputation it will convey to any reasonable man, is, that although the plaintiff was a Senior Police Officer, he was also a powerful member of the banned police party (N.P.N) in police uniform and did impose his said party on the people of Anambra State, while he was there as the Commissioner of Police in-charge of the said State Police command. The natural and the ordinary meaning the said publication conveys to a reasonable man of general know- ledge as opposed to special knowledge, is that he as a Public Officer, ought by his office to be impartial and non-partisan in the execution of his duties but that he did the opposite and therefore guilty of serious and dishonorable conduct.
It does not also need, any special knowledge for any reasonable man, to infer from the said publication, that the plaintiff though a Senior Police Officer took part in the alleged rigging of the 1983 General Elections which injured his credit and reputation. To me, the language used was clear and the words in their primary meanings are defamatory as they speak for themselves. I therefore hold on the evidence tendered before me, that these words complained of, were infact defamatory of the plaintiff as they injured his good name and reputation and lowered his estimation in which he stands in the society of his fellow citizens.”
As can be observed from the record, the plaintiff testified and called one witness, Martin Omini, a Superintendent of Police, Police Headquarters Enugu. Neither the plaintiff/respondent nor the witness who testified on his behalf, gave any evidence of the effect of the said publication on the plaintiff. The plaintiff/respondent in his evidence at pages 19-22 of the record, a portion of which is reproduced herein, merely stated on the effect of the publication as follows:-
“The publication injured my character, credit and reputation and brought me into public scandal, odium and contempt. I am therefore claiming the sum of N1,000.000.00 (One Million Naira). I am sure that I was retired from the Police Force because of the publication as I got my letter of retirement a few days after the said publication.”
While PW1, the Superintendent of Police, whose evidence is at pages 24 – 25 of the record merely tendered documents relating to the posting of Police Officers, in evidence. There is evidence that other Police Commissioners mentioned in the said publication along with the plaintiff/respondent were not retired but were instead promoted.
The evidence of the right thinking man or ordinary and reasonable man mentioned by the learned trial Judge is not available in the instant case to enable the trial court determine whether the said publication amount to disparagement of the plaintiff/respondent’s reputation in the eyes of the average right thinking members of the public. I doubt very much if the views of the learned trial Judge on the publication can be regarded as evidence of the average right thinking member of the public. The necessity of establishing disparagement that effected the reputation of a party claiming damages for defamation was discussed by the Supreme Court of Nigeria in the case of Reg. Trustees of AMORC v. Awoniyi (1994) 7 NWLR (Pt.355) 154 at 194, where the court, per Iguh, JSC had this to say:-
“In this regard it is well to recall what, Green L.J. said in Tolley v. Fry (1930) 1 KB 467 at 479 that:
“Words are not defamatory, however much they may damage a man in the eyes of a section of the community, unless they also amount to disparagement of his reputation in the eyes of right thinking men generally. To write or say of a man something that will disparage him in the eyes of a particular section of the community but will not affect his reputation in the eyes of the average right-thinking man is not actionable within the law of defamation.
I agree, as words, however much they may appear to damage a man in the eyes of only a section of the community, are not defamatory or actionable within the law of defamation, unless they amount to disparagement of his reputation in the eyes of the average right-thinking members of the public generally.”
The learned trial Judge commenced his judgment which is contained at pages 86-127 of the record by first stating the claims of the plaintiff/respondent, summary of the evidence adduced before the court and reproduction of the relevant paragraphs of both, the statement of claim and the further amended statement of defence. He then set out what he considered material facts of the publication, reproduced extensively the relevant contents of Exhibits ‘D3’ and ‘D4’ relied upon by the defendants/appellants in defence. Learned trial Judge considered particularly the plea of justification contained in the defendants/appellant’s further statement of defence as one of the points raised in defence. At pages 114-115 of the record, the learned trial Judge said:
“I have read through the records of service of the plaintiff Exhibits D3 and D4 and although there are certain areas which do not speak too well of the plaintiff but a lot can be found in his favour and to his credit.
The rise in crime wave can not be strictly attributed to his own person nor was he held and convicted for corruption and a general statement by an Assistant Inspector-General of Police that the whole State Command stinks of corruption cannot be of the plaintiff’s own personal doing. Indeed, he was cleared of corruption by Mr. Inyang, IGP. Again, Exhibit P10 gave the plaintiff a clean slate on retirement, a document signed by Mr. Inyang, IGP and Ibrahim Babangida, the President of this country as chairman of Police Council.”
I respectfully disagree with the learned trial Judge that Exhibit “P10” gave the plaintiff/respondent a clean slate on retirement for some reasons some of which I shall now state.
First, the learned counsel for the defendants/appellants, objected to the admission of Exhibit “P10” through cross-examination but his objection was overruled. There is no where in the statement of claim where Exhibit “P10” was pleaded.
Exhibit “P10” was admitted in evidence through cross-examination.
It is necessary to state that defence elicited from a party by his opponent during cross-examination cannot be used against the party if the material fact relating to the evidence was not pleaded.
See George v. U.B.A. (1972) (Pt. 2) 1 All NLR 347 and George v. Dominion Flour Mill (1963) 1 SCNLR 117 (1963) 1 All NLR 71.
I therefore hold that Exhibit “P10” was inadmissible and with respect to the learned trial Judge, he was wrong in admitting Exhibit “P10” in evidence and on placing much emphasis on it as rightly contended by the learned counsel for the defendants/appellants.
Assuming, the learned trial Judge was right in admitting Exhibit “P10” in evidence, what is the effect of Exhibit “P10” dated 27/12/85 on the publication dated 16/1/84, bearing in mind that what is material is the plaintiff/respondent’s reputation at the time of the publication and not whatever happened afterwards? If the learned trial Judge had adverted his mind to the difference in date of the publication and Exhibit “P10”, perhaps, he might not have placed much emphasis on Exhibit “P10”.
I observed with respect to the learned trial Judge, that he took it upon himself to explain or counter issues for a party in the course of his judgment when it is settled principle of law that it is not the function of the court to formulate issues for the parties or put forward a case for either of the parties.
In my humble view, the learned trial Judge, having said, “there are certain areas which do not speak too well of the plaintiff,” referring to the contents of Exhibits “D3” and “D4” put in evidence by the defendants/appellants in support of their plea of justification, the learned trial Judge ought to have sustained the plea of justification and dismiss the action against the plaintiffs/defendants.
For the defence of justification to succeed, it is not necessary to prove the truth of every word comprised in the alleged libel.
It suffices if the defendant establishes that the main substance of the libelous statement is true and justified. The defendants need not justify statements or comments which do not add to the sting of the charge or introduce any matter by itself actionable. See Sutherland v. Stapes (1925) AC 47. The general principle of law is that the words complained of and published must be construed as a whole.
See Okolo v. Midwest Newspapers Corporation & Ors. (1977) I SC 33; Lewis v. Daily Telegraph Limited (1964) AC 234. See also paragraph 361 of Gatley on Libel and Slander (8th Edition) page 154 where the author stated the law thus:-
“361. Substantial Justification sufficient. It is not necessary to prove the truth of every word of the libel. If the defendant proves that “the main charge, or gist, of the libel” is true, he need not justify statements or comments which do not add to the sting of the charge or introduce any matter by itself actionable. “it is sufficient if the substance of the libelious statement be justified; it is unnecessary to repeat every word which might have been the subject of the original comment. As much must be justified as meets the sting of the charge, and if anything be contained in a charge which does not add to the sting of it, that need not be justified.”
Paragraph 364 of Gatly on Libel and Slander 8th Edition at page 155 reads:-
“364. Inaccuracy of detail: Again, if the defendant can prove that the main charge or gist of the libel is true, a slight inaccuracy in one or more of its details will not prevent him from succeeding in a defence of justification.”
I have read exhibits “D3”, “D4”, and “P10” as well as the other Exhibits tendered in evidence. I do not share the view of the learned trial Judge or that of Dr. Mudiaga Odje, the learned Senior Advocate of Nigeria, counsel to the plaintiff/respondent at the trial court, that exhibit “P10” has cleared the plaintiff/respondent, at least as far as the publication complained of is concerned. I hold that the defence of justification succeeds and ought to have succeeded at the trial court. I think the point must be emphasized that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the court of trial who saw, heard and assessed the witnesses. Where a court of trial unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the Court of Appeal to substitute its own views for the views of the trial court. See Akinloye & Anor v. Eyiyola & Ors. (1968) NMLR 92 at page 95; Enang v. Adu (1981) 11-12 SC 25 at page 39;
Woluchem v. Gudi (1981) 5 SC 291 at page 320 etc. What the Court of Appeal ought to do is to find out whether there is evidence on which the trial court have acted. Once there is sufficient evidence on record from which the trial court made its findings of fact, the appellate court cannot intervene. See Akpagbue v. Ogu (1976) 6 SC 63; Odofin v. Ayoola (1984) 11 SC 72; Amadi v. Nwosu (1992) 5 NWLR (Pt.241) 273 at page 280 etc.
Where, however, the trial Judge failed to make a proper use of the opportunity of seeing, hearing and observing the witnesses at the trial or to exercise his discretion properly, or where the findings cannot be regarded as resulting from the evidence or where it has drawn wrong conclusion to accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings of fact are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence before the court, the appellate court will be at liberty to intervene and to make the necessary findings from such evidence. See Okpiri v. Jonah (1961) All NLR 102 at page 104; (1961) 1 SCNLR 174; Maja v. Stocco (1968) 1 All NLR 141 at page 149; Ike v. Ugboaja (1993) 6 NWLR (Pt.301) 539 at page 555; Chief Frank Ebba v. Ogodo (1984) 4 SC at page 90 – 91 etc; (1984) 1 SCNLR 372.
In view of the foregoing, I hold that the appeal has merits and must be allowed. I therefore resolve the only issue in favour of the defendants/appellants against the plaintiff/respondent.
I shall now proceed to deal with the cross-appeal filed by the plaintiff/respondent in which the following ground of appeal has been raised:-
“(i) The learned trial Judge erred in law and on facts in awarding in favour of the plaintiff only N80,000.00 damages in this case, which was an erroneous estimate and manifestly too small in that the said award was made without giving consideration and/or proper consideration to:-
(a) The amount of damages claimed;
(b) The grave but patently false imputations made against the plaintiff in the libellous publication in question;
(c) The abrupt and forced retirement of the plaintiff from the Nigeria Police with effect from 20th January, 1984 in the wake of the said libel published barely 4 (four) days earlier;
(d) The incalculable loss caused to the plaintiff by the said publication with respect to the opportunity and prospects fairly open to him of rising to the position of the Inspector-General of Police or near enough;
(e) The pain and humiliation suffered by the plaintiff at all times material to this action;
(f) The contemporary and current economic and financial trend in the country, coupled with the fast dwindling purchasing power of the Naira and,
(g) The issue of the adequacy of the amount of damages ample enough not only to repair the injury to the plaintiff’s reputation damaged by the said libel; but also to atone for the assault on his character and pride that were unjustifiably invaded by the said publication.”
From the sole ground of appeal, the plaintiff/cross-appellant formulated one issue which reads:-
“1. Whether the sum of N80,000.00 awarded by the learned trial Judge in favour of the plaintiff/cross-appellant is sufficient damages taking into consideration all the circumstances of the case.”
Again, the cross-respondent formulated two issues from one ground of appeal as follows:-
“(i) Whether this is an appropriate situation upon the legal principles to interfere with the award of damages by a trial court.
(ii) Whether indeed a higher award of damages is reasonable in the circumstances of the case.
The second is subsidiary to the 1st issue. ”
Learned counsel for the plaintiff/cross-respondent, Mr. Henry Yekovie, in the cross-appellant’s brief stated that in the statement of claim, the plaintiff/cross-appellant claimed the sum of N1,000,000.00 (One Million Naira) only jointly and severally against the defendant/cross-respondent for libel published on the widely circulated newspaper of the 1st defendant/cross-respondent. That the cross appellant in proving the case led copious uncontradicted evidence,
highlighted in the cross-appellant’s brief. He said the evidence adduced by the plaintiff/cross-appellant was accepted by the learned trial Judge and submitted that the learned trial Judge was left with no option but to award aggravated damages against the defendants/cross-respondents, citing a number of cases in support of his submission.
It is further submitted that the value of the Naira has seriously depreciated and this has affected the purchasing power of the Naira and as such N80,000.00 awarded as damages to the cross-appellant cannot be reasonable and adequate sum to vindicate his reputation which has been greatly dented since damages awarded in such instances are regarded as the demonstrative mark of that vindication, citing a number of cases to buttress his submission. He finally urged us to allow the cross-appeal and review the award by making it substantial and adequate having regard to all the circumstances of the case.
In reply, in the cross-respondent brief, though titled, ‘respondent’s brief’, learned counsel for the defendants/cross respondents, Mr. Adetayo Osuntogun, submitted that it is trite law that appellant courts are very reluctant to interfere with the amount awarded as damages by the trial court unless the trial court proceeded on a wrong principle of law in assessing the damages, considered irrelevant factors or the damages are so ridiculously high or low as to appear a wholly erroneous estimate of the damages to which the plaintiff is entitled, citing a number of cases in support of his submission. He said, the learned trial Judge in assessing the damages to be awarded enumerated the factors he considered and argued that no other factors were urged upon the learned trial Judge by the plaintiff/cross-appellant.
Learned counsel concluded that the cross-appeal lacks merit and should be dismissed.
I adopt my reasoning and conclusion in the main appeal in respect of the cross-appeal. Having held that the defendants/appellants successfully established a defence of justification based on which the main appeal is allowed, the cross-appeal on award of damages by the plaintiff/cross-appellant automatically fails and is hereby dismissed.
On the whole, having regard to the foregoing, I hold that the appeal succeeds and is hereby allowed. The judgment of the learned trial Judge, Unurhoro, J. delivered on 7/5/91 is hereby set aside and in its place, I enter a verdict of dismissal of suit No. W/80/86, with costs assessed at N3,000.00 in favour of the defendants/appellants against the plaintiff/respondent.
The cross-appeal lacks merit and is hereby dismissed with N3,000.00 costs in favour of the defendants/cross-respondents.
TOBI, J.C.A.: I entirely agree with the judgment of my learned brother, Ba’aba, JCA. Justification is a defence to an action on libel. If the defence is successful, it wipes out the libel in its entirety. In this appeal, there is plethora of evidence by way of Exhibits to sustain the defence of justification. I too therefore allow the appeal and dismiss the cross-appeal.
I award N3,000.00 costs in favour of the appellants.
AKAAHS, J.C.A.: I have read in draft the leading judgment of my learned brother Ba’aba, JCA with which I entirely agree. The learned trial Judge found the libel proved on the basis of Exhibit PI0 (the Certificate of Service of the plaintiff/cross-appellant) which was prepared long after the alleged libelous publication was made. It was not pleaded and so goes to no issue. See George v. U.S.A. (1972) (Pt.2) 1 All NLR 347; George v. Dominion Flour Mills (1963) 1 SCNLR 117,(1963) 1 All NLR 71. Even though objection for the admission of Exhibit P10 was taken since it was not pleaded, the learned trial Judge overruled the objection stating that the Certificate of Service was based on the contents of the Personal Files Exhibits D3 and D4 which had been pleaded. The law is that evidence elicited from a party by his opponent during cross-examination cannot be used against the party if the material fact relating to the evidence was not pleaded. See Dina v. New Nigerian Newspapers Ltd. (1986) 2 NWLR (Pt.22) 353 at 364.
Exhibit P10 was admitted through cross-examination of appellants’ witness by counsel to the plaintiff/cross-appellant and since it was the plank on which the libel was proved leading to the award of N80,000.00 damages in favour of the plaintiff/cross appellant the said award cannot stand since the document was inadmissible as there was no pleading to support it. Consequently, the main appeal must succeed and per force the cross-appeal has to fail. For this and the more detailed reasons contained in the leading judgment, I too will allow the main appeal and dismiss the cross appeal.
I abide by the order on costs made in the leading judgment.
Appeal allowed
Cross-appeal dismissed.
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Appearances
Adetayo OsuntogunFor Appellant
AND
Henry I. Yekovie, holding brief for Okeimute OdjeFor Respondent
