THE SKETCH PUBLISHING COMPANY LTD. & ANOR V. ALHAJI AZEEZ A. AJAGBEMOKEFERI
In The Supreme Court of Nigeria
On Friday, the 17th day of February, 1989
SC.47/1986
JUSTICES
ANDREWS OTUTU OBASEKI Justice of The Supreme Court of Nigeria
CHUKWUDIFU AKUNNE OPUTA Justice of The Supreme Court of Nigeria
ABDUL GANIYU OLATUNJI AGBAJE Justice of The Supreme Court of Nigeria
ABUBAKAR BASHIR WALI Justice of The Supreme Court of Nigeria
EBENEZER BABASANYA CRAIG Justice of The Supreme Court of Nigeria
Between
- THE SKETCH PUBLISHING COMPANY LTD. & ANOR
2. ALHAJI SHEHU AKOREDE AZEEZ Appellant(s)
AND
ALHAJI AZEEZ A. AJAGBEMOKEFERI Respondent(s)
RATIO
THE DUTY OF THE COURT IN DECIDING WHETHER WORDS ARE CAPABLE OF CONVEYING DEFAMATORY MEANING
In deciding whether words are capable of conveying defamatory meaning, the court will reject that meaning which can only emerge as the product of some strained or forced or utterly unreasonable interpretation (per Lord Morris in Jones v. Skelton (1963) 1 W.L.R. at p. 1370).
The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense. In determining whether the words are capable of a defamatory meaning, 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. The test according to Lord Selborne is whether, under the circumstances in which the writing was published, reasonable men to whom the publication was made would be likely to understand them in a libellous sense.”
See also the case of Okofo v. Midwest Newspaper Corporation (1977) 1 S.C. 33 and Okafor v. Ikeanyi (1971)3-4 S.C.99. PER WALI, J.S.C.
THE TORT OF DEFAMATION
The tort of defamation arises because every person has a right to the protection of his good name, reputation and the estimation in which he stands in the society of his fellow citizens: Scott v. Sampson (1882) 8 Q.B.D. 491 at p.503
Anybody who publishes anything injuring that good name, reputation or estimation commits the tort of libel (if written) and slander (if oral). The onus on the plaintiff in an action for libel is to prove that the defendant.
(i) published in permanent form a Statement;
(ii) that the statement referred to him;
(iii) that the statement was defamatory of him in the sense that;
(iv) it lowered him in the estimation of right-thinking members of the society or
(v) it exposed him to hatred, ridicule or contempt; or
(vi) it injured his reputation in his office, trade or profession; or
(vii) it injured his financial credit. PER WALI, J.S.C.
WALI, J.S.C. (Delivering The Leading Judgment): In the High Court of justice of Oyo State, Ibadan Judicial Division, the Plaintiff sued the Defendants in Suit No. 1/259/78 claiming for damages for libel falsely and maliciously published of and concerning him in a 1979 almanac called “Voice of Islam” by the 1st Defendant at the instance of the 2nd Defendant. Pleadings were ordered, delivered and exchanged. In that Plaintiff’s Statement of Claim, he alleged that the Defendants defamed him by falsely and maliciously printing and publishing of and concerning him in a 1474 Almanac called “Voice of Islam” as revealed hereunder in the following paragraphs of his Statement of Claim:-
“(5) The Plaintiff is a great Muslim Evangelist and preacher and has his reputation throughout the Muslim world as a prolific preacher and converter of many people to Islam through his preaching, that he was nicknamed and called Ajagbemokeferi, meaning that his vocality to pagans has converted many to the Muslim religion. In consequence of his depth of the Islam religion and a strong believer in the tenets and ideals of the Muslim religion and a prolific preacher and crusader he was conferred with the Chieftaincy Title of OTUN BALOGUN ONIWASU by the Chief Imam of Ibadan ABDULAHI ALHAJI MUYILI, the head and leader of the Muslim community in Ibadan and was turbanned on 5th August. 1978.
(6) The Plaintiff has a slot every Friday on the National Television Authority, Ibadan and his programme centres on the preaching of Islam from the Holy Koran. By this Television Programme, the Plaintiff is known throughout the length and breath of Nigeria as a devoted and upright Muslim.
(7) The Defendants jointly and severally published falsely and maliciously in the said Almanac under the photograph of the Plaintiff the following words in Yoruba Language to wit “ALHAJI A. A. AJAGBEMOKEFERI (OTUN BALOG UN ONIWASU)
Oye yi je oye yeye gegebi oye Adadale. ti Islam ko patapata Egbo bi ANOBI ti wi ki Ike at ola Olorun ki o maba. Ina ni ile gbogbo Aladadale” which literally translated into English Language means that the Chieftaincy title of the Second in rank to the General of Muslim preachers held by the plaintiff is a worthless and valueless Chieftaincy just like Chieftaincy titles of impostors and contrary to the tenets and teachings of Islam. By the word of ANOBI (ALLAH) woe betides such holders of such Chieftaincy and their place is in hell after death.
(8) By the said words pleaded in paragraph 7 supra reasonable people have understood it to mean that the Plaintiff is not a fit and proper person to be conferred or holder of a religious Chieftaincy of Muslim Leader, more especially by this Chieftaincy he has acted contrary to the teachings and tenets of Islam and his final place is in hell and not paradise.
(9) By reason of the publication of the words and photograph of the Plaintiff, the Plaintiff has been greatly injured in his character, credit and reputation and has suffered damage. Many people have shunned the plaintiff and have avoided the Plaintiff for assistance in prayers.”
Whereupon the Plaintiff Claims from the Defendants jointly and severally as follows:-
“(i) The sum of N1,000,000.00 (ONE MILLION NAIRA) being damages for libel contained in an almanac “VOICE OF ISLAM” written by the 2nd Defendant and published by the 1st Defendant which Almanac is widely circulated in Nigeria and throughout the West Coast of Africa in the community known as Economic Community of West African States (ECOWAS),
(ii) An injunction restraining the Defendants, their agents or servants or otherwise from further printing, circulating, distributing or otherwise, publishing any copies of the said Almanac,”
The Defendants admitted printing and publication of the words complained of, but put up a plea of justification, fair comment and privilege, In paragraphs 12, 13, 14, 15, 16 and 17 of the 2nd Defendant’s Statement of Defence, he avers that:-
“12. With further reference to paragraphs 5 and 6 of the Statement of Claim that 2nd defendant says that the plaintiff is a local preacher who is usually referred to as ‘Oko Ololu’ meaning Ololu’s Husband, until 5th August, 1978, when he was conferred with the Chieftaincy title ‘Otun Balogun’ 2nd Defendant, were present.
13. At the time of the plaintiff’s installation as Otun Balogun Oniwasu there has never been such title or vacancy in Mujaiduna Islam Society or in any muslim religion society in Ibadan or anywhere in Nigeria or in the entire muslim world.
14. With reference to paragraphs 7 & 8 of the Statement of Claim the 2nd defendant says and will contend that:
(i) The words complained of did not bear and were not understood to bear any defamatory meaning.
(ii) The statement was not made concerning the plaintiff but in respect of the chieftaincy title and its creators of which the plaintiff was not named as one of them.
(iii) The words complained of were published bonafide and without malice towards the plaintiff on the occasion of qualified privilege.
(iv) In so far as the words complained of consist of statements of facts they were true in substance and in fact.
(v) The words were fair bonafide comment without malice towards the plaintiff of facts truly stated which were a matter of public interest.
15. The 2nd defendant will rely on the following facts and matters in support of allegations in paragraph 14(iv) above that:
(i) The statement literally translated into English means “This chieftaincy title is a ridiculous title like a self-established title to which Islam is completely opposed.” Hear what Mohammed said (Peace & Blessing of Allah be upon him) “Hell is the abode of all these who indulge in self-establishment (i.e. of things contrary to the tenets and teachings of Islam).”
(ii) The statement imports no imputation or reference to the propriety, suitability or otherwise of the Plaintiff either personally or as a Muslim preacher in being conferred with such a title or that the plaintiff is fake.
(iii) The title “OTUN BALOGUN”s a secular one pertaining to traditional Chief with superior and subordinate ranks or offices.
(iv) “Oniwasu” literally translated into English means “a preacher” and it has no hierarchy in Muslim religion, teaching and law.
(v) The naming or installing of a person as Otun Balogun (Secular Chieftaincy title) is self-created practice contrary to the tenets and teachings of Mohammed and the practice cannot be supported by the Holy Koran nor can it be found in any of the Hadiths.
16. With further reference to paragraph 14(v) of the Statement of Claim the 2nd defendant says that the installation and acceptance of secular chieftaincy title by Muslim preachers is a matter of public interest and the 2nd defendant as 2nd Editor of Voice of Islam is entitled to comment on it being matters agitating the minds of muslims and the public in general and on which the public should be enlightened.
7. With reference to paragraph 9 of the Statement of claim the 2nd defendant denies that the plaintiff has been greatly injured or injured at all or in any respect whatever by the said statement and neither was he shunned nor avoided.”
While the 1st Defendant avers in paragraph, 4, 5, 6 & 7 of his Statement of Defence as follows:-
“(4) IN THE ALTERNATIVE the 1st Defendant admits printing the Almanac referred to in paragraph 3 of the Statement of Claim but specifically denies ever printing the said Almanac maliciously or with knowledge that any of the contents was false.
(5) The 1st Defendant will contend at the trial of the case that it was neither the editor nor the publisher of the Almanac referred to in paragraph 3 of the Statement of Claim.
(6) The 1st Defendant avers that the said Almanac was printed in its Commercial Printing Department and that the printing was done as a purely commercial transaction between it and the 2nd Defendant without malice to the Plaintiff or knowledge of any malicious intention to the Plaintiff.
(7) FURTHER IN THE ALTERNATIVE the 1st Defendant will rely on the defence of fair comment at the trial, in that the words complained of and set out in paragraph 7 of the Statement of Claim were fair comments made in good faith and. without malice upon a matter of public interest, namely the conferment of a chieftaincy title on the Plaintiff, purporting it to he a chieftaincy title in the moslem community of Ibadan, and which conferment is not in accordance with the tenets of the Islam Religion nor the dictates of the Koran.
WHEREOF the 1st Defendant says that the Plaintiffs claim is misconceived, speculative and vexatious and ought to be dismissed with substantial costs.”
The Plaintiff filed a reply to the Statement of Defence.
The parties called witnesses in proof of the averments contained in their respective pleadings, and at the conclusion of the hearing, the learned trial Judge, Ayorinde J. after evaluating the evidence and making several findings among which are –
(a) ‘There is evidence before me from all the plaintiffs witnesses and the 2nd Defendant that the Plaintiff is a prolific Moslem preacher. It has also been said that in consequence he was given this title. According to 5th plaintiff witness, the plaintiff would not be conferred the title if he did not want it. I accept these pieces of evidence. The only reasonable reaction that ordinary reasonable people will have to the picture, the chieftaincy title and the comment complained of in exhibit “B” is that the plaintiff is also a despicable character whose final abode will he hell. In the circumstance, I find as a fact that the words complained of refer to the plaintiff and arc capable of hearing defamatory meaning. The court needs only to he satisfied that expressly or impliedly allegedly offending words refer to the plaintiff and are capable of defamatory meaning to the plaintiff. See S.B. Salumo v. The Sketch Publishing Company (1972) 1 ALL N.L.R. (Part 2) 130. An ordinary person should regard the offending words in the circumstances as being capable of bearing defamatory meaning and it is the test of the ordinary person that I should adopt.
(b) It is my view and I find as a fact that the comments made arc on matter of public interest in view of the fact that it is accepted by all sides that the plaintiff is a public figure. The title given to him generated a lot of controversy. The evidence of the 2nd defendant whom I believe refers; the words complained of can only he regarded as criticism of the conferment of the chieftaincy title conferred on the plaintiff. The criticism has been said to be an honest opinion and as I have found are supported by the relevant provisions of the Koran and Hadith referred to. It follows that the publication is privileged.
(c)I should refer to Section 16(1) and (2) of the Defamation Law Cap. 32 of the Laws of Western Nigeria which is yet applicable in Oyo State. As the plaintiff has failed to sustain any malice against the 1st defendant. it follows that no liability would attach to the publication being complained of; he concluded-
“the action of the Plaintiff fails and it is dismissed in its entirety.”
Aggrieved by the decision of the trial court, the Plaintiff appealed to the Court of Appeal, Ibadan Division. The appeal was unanimously allowed, and in the lead Judgment of that court prepared by Belgore, J.C.A. (as he then was) the following order was further made:-
However the issue of quantum of damages was not addressed upon by the parties before the learned trial Judge, Ayorinde. J., and I remit this back to him for assessment of damages on which he could be addressed by the counsel for the parties.”
With the leave of this Court, the Defendants have now appealed to this court on several grounds. The parties filed and exchanged briefs which they adopted during the hearing and made oral submissions in elaboration thereof.
For the purpose of this appeal, both the Plaintiff and the Defendants will henceforth be referred to as the Respondent and the Appellants, respectively.
The only issue formulated for determination in this appeal and on which the parties are at ad idem reads-
‘Whether or not having regard to the facts of this case, the defence of fair comment was available to the Defendants.’
I agree with the issue formulated and reproduced supra; I am also of the view that in the light of the evidence, the other additional issue will be-
“Whether the words, even if defamatory, refer to the Plaintiff/Respondent.”
The facts of this case simply put, are as follows:-
The Plaintiff/Respondent is a renowned Islamic Preacher of good repute and resides at Ife Road, Ibadan. Because of his evangelical work to Islamic religion, he was given the nickname of “Ajagbemokeferi” and in further recognition of this continuing crusade work, the Chief Imam of Ibadan and head leader of the Muslim Community, conferred on the Plaintiff/Respondent the Chieftaincy Title of “Otun Balogun Oniwasu” and was so turbanned on August 5th, 1978.
The 1st Defendant/Appellant is a publisher and printer of the newspaper known as and called Daily Sketch while the 2nd Defendant/Appellant is the editor of and publisher of a Muslim monthly newspaper called “Voice of Islam” and other publications for the propagation of Islam. In the publication of the “Voice of Islam” described as Almanac for 1979, photographs of many eminent Muslim leaders in Nigeria including that of the Plaintiff/Respondent were printed. The Defendants/Appellants jointly and severally printed and published under the Plaintiff/Respondent’s photograph in the said Almanac some words in Yoruba language, alleged to be defamatory of the Plaintiff, and which when translated into English language, bear the following meaning:-
“That the Chieftaincy title of the second in rank to the general of Muslim preachers held by the Plaintiff is a worthless and valueless Chieftaincy just like chieftaincy title of impostors and contrary to the tenets and teachings of Islam. By the word of ANOBI (ALLAH), woe betides such holders of such chieftaincy and their place is in hell after death.”
Whereupon, the Plaintiff/Respondent filed the suit claiming the reliefs earlier set out in this judgment.
As the learned Counsel for the Appellants said in his brief and with which I agree, the real issue contested in the High Court was the religious propriety or otherwise of introducing as an innovation, the Yoruba traditional title of Otun Balogun, to purely Islamic affairs. This was further made clear by the portion of the words complained of that the title….. “a worthless and valueless chieftaincy.” Learned counsel submitted that the purport of paragraphs 1, 5 and 6 of the Respondent’s statement of claim is to portray him as a public figure in Islamic religious affairs and that religion is a matter of public interest. In support of the submission above, learned counsel referred to and relied on a portion in the Respondent’s evidence and to paragraphs 701 at page 292 of Gatley on Libel and Slander (7th Edition). He therefore submitted that even if the words complained of arc found to be defamatory, the Appellants are covered by the defence of fair comment as decided by the learned trial Judge. He further submitted that it was common ground between the parties that the title conferred on the Respondent docs not exist in either the Holy Koran or the Hadith (authentic sayings and deeds of the Holy Prophet Muhammad) and same is therefore an innovation.
Learned Counsel also argued that the statement, even if found to be defamatory, was covered by the defence of qualified privilege as found by the learned trial Judge.
In reply to arguments supra, learned Counsel for the Respondent submitted that the Court of Appeal was right in its judgment when it held that the defences of fair comment and justification were not available to the Appellants-since the words complained of were not fair comments but categorical and authoritative assertions of fact and that the authorities quoted and relied upon have clearly vindicated that not all innovations are forbidden in Islam and that the traditional title conferred on the respondent is such one of them. Learned Counsel also referred to the evidence of the 2nd defendant/appellant, particularly under cross-examination and submitted that it was a further indication of malicious motive of the 2nd defendant in the publication of the libelous words against the respondent. It was also the submission of learned counsel for the respondent that the appellant did not specifically plead that respondent was a public figure and therefore the Court of Appeal finding to that effect was justified. He cited numerous authority in support of his submission above and concluded.
That the fact that the plaintiff was a public figure was not pleaded and therefore went to no issue.
2. That although the subject-matter of the publication, religion, is a matter of public interest, the Defendants exceeded the ambit or the defence of fair comment as (regarding) held by the Court of Appeal.
3. That the libelous statement referred to the Plaintiff and not merely to his title.
4. That the Defendants were actuated by malice in publishing the libelous statements.
He urged this court to dismiss the appeal.
Before going into the main issue canvassed in this appeal, it is pertinent to deal now with the procedural issue of whether the Appellants in their respective pleadings, pleaded that the Respondent is a public figure and there fore entitled to comment on it.
In paragraph 5 of the Statement of Claim, the Respondent averred that:-
“5. The plaintiff is a great Muslim Evangelist and has his reputation throughout the Muslim world as a prolific preacher and converter of many people to Islam through his preaching, that he was nicknamed and called Ajaghemokeferi, meaning that his vocality to pagans has converted many to the Muslim religion. In consequence of his depth of the Islam religion and a strong believer in the tenets and ideals of the Muslim religion and a prolific preacher and crusader, he was conferred with the Chieftaincy Title of OTUN BALOGUN ONIWASU by the Chief Imam of Ibadan ABDULAHI ALHAJI MUYILI., the head and leader of the Muslim community in Ibadan and was turbanned on 5th August, 1978.”
The averments supra were later supported by the evidence called by the Respondent. The 2nd Appellant himself in his evidence agreed that the Respondent is a Muslim preacher, although he called him a local preacher. There is an unchallenged as well as undiscredited evidence that the Respondent is a Muslim Evangelist and a preacher. He was given a slot every Friday on the National Television Authority, Ibadan to preach and propagate Islam. In recognition of his contribution, he was conferred with, by the Chief Imam of Ibadan, the Chieftaincy title of Otun Balogun Oniwasu. These facts, in my view, depicted the Respondent as a public figure within the locality of his own community. These facts were pleaded in paragraphs 5 & 6 of the Plaintiff’s Statement of Claim, and for the Appellant’s to comment on the issue, they need not plead the fact again.
The complaint is therefore baseless and devoid of any merit.
The next and main issue is one of defamation. A defamatory statement is defined in Words and Phrases Legally Defined Vol. 8.p. 28 as “a statement which, if published of and concerning a person, is calculated to lower him in the estimation of the right-thinking men or cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade, or business.”
In an action for defamation, the onus is on the Plaintiff to prove that the words complained of conveyed a defamatory meaning to whom they were published.
In the present case, it is an undisputed fact that the Respondent is an eminent Islamic religious preacher and in recognition of his contributions in this field, the Chief Imam of Ibadan. in his capacity as the leader of the local Muslim Community, conferred on Respondent, the honorary Chieftaincy ‘Title of OTUN BALOGUN ONIWASU’ which means “the next in rank or the right hand man to the Moslim Leader.”
After the Respondent was conferred and installed as Otun Balogun Oniwasu, the 2nd Appellant wrote and published of and concerning the Respondent through the 1st Appellant the words complained of.
In actions involving libel, it is settled law that the question whether the words complained of are, in fact, defamatory of the Plaintiff, is a matter for the jury and it is for the Judge to decide on the evidence adduced in support of the complaint, whether they are capable of referring to the Plaintiff as well as capable of conveying defamatory meaning in the minds of reasonable persons in the circumstances of the particular case. In Knupffer v. London Express Newspaper Ltd. (1944) A.C. 116 and Nevill v. Fine Art and General Insurance Co. (1987) A.C.68. Since the trial by jury system no longer exists in this country. the trial Judge discharges the two functions.
In this case, the words complained of are contained in the 1979 Almanac described as “Voice of Islam.” The Almanac showed inter alia, the photograph of the Appellant with the following words under it in Yoruba language:-
“ALHAJI A.A. AJAGBEMOKEFERI
(OTUN BALOGUN ONIWASU)
Oye yi je Oye yeye gegebi oye Adadale, ti Islam ko patapata.
Egbo bi ANOBI ti wi ki Ike ati ola Olorun ki o ma ba. Ina ni ile gbogbo Aladadale
Meaning in English language that” Alhaji A.A. Ajagbemokeferi (second in command to the general of Muslim preachers). This Title is a worthless chieftaincy just like chieftaincy titles of impostors and contrary to the tenets and teachings of Islam. Hear the words of Anobi; hell is the abode of all inventors.”
It is common ground that the title conferred on the Respondent does not exist in the Koran or Hadith. It is also agreed by both parties that such title is a Yoruba traditional chieftaincy title and therefore an innovation since same was neither mentioned in the Koran nor in the Hadith. It is therefore an innovation. But as stated in the evidence adduced by the Respondent not all innovations arc barred by Islam and declared illegal. This was confirmed by the undiscredited evidence of P.W.1, P.W.2, P.W.3, P.W.6 and P.W.7:
It is not a correct interpretation of the verses of the Holy Koran and the Hadith referred to by the 2nd Appellant when he opined that anything not mentioned in the Koran or the Hadith is a bad innovation. The innovations or inventions prohibited by Islam are those that are against and contradict the tenets of Islam. This was confirmed by the 2nd Appellant himself in his evidence. Therefore the chieftaincy title – Otun Balugun Oniwasu, that is second in command to the general of Muslim Preachers, though an innovation is not against the Islamic religious tenets and not prohibited. It is a permissive innovation.
The next thing to consider is whether the words are infact defamatory and on the evidence adduced, capable of referring to the plaintiff as well as capable of conveying a defamatory meaning in the minds of reasonable persons in the circumstances of that particular case.
From the evidence, it is accepted that the chieftaincy conferred on the Respondent is only a practice among the Yoruba Muslim Community of Ibadan. It is a local affair which has neither national nor international recognition. It is a statement of fact that it is an innovation. The words that the title is a worthless chieftaincy just like that of innovators contrary to the tenets and teachings of Islam” is nothing more than an expression of opinion.
The words “Hell is the abode of all innovators” can be a statement of fact as well as an expression of opinion. It is a statement of fact in so far as they arc taken to be the words of the Prophet Mohammed and related to innovations strictly prohibited, and an expression of opinion if such an innovation is permissive.
Then reading the whole words in the con and circumstances they were used, it is my view that they are not defamatory. This is confirmed by the evidence of the majority of the Plaintiffs witnesses. The evidence shows that from the time the words were allegedly published of and concerning the Respondent, he was not avoided or shunned. Nor did the evidence show that his status was lowered in the estimation of the right thinking men of his community or that he was exposed to hatred, contempt or ridicule. There is no reliable evidence showing that the imputation on him is injurious to him in his office, profession, trade or business. He is still being respected as a prominent and respectful Islamic preacher by his local community. This is evidenced by his retention to continue with his weekly Friday sermon.
The innuendo pleaded by the respondent alleges that the Plaintiff is not a fit and proper person to be conferred or holder of a religious chieftaincy of Muslim leader; more especially by this chieftaincy he has acted contrary to the teachings and tenets of Islam.
In the first place, reading the words in the con they were used, could it be said that they refer to the Respondent My answer shall certainly be in the negative.
What was condemned in the words are the innovation and the innovators. The plain meaning of the words as translated can give no other meaning. As regards the innuendo, upon a reasonable construction of the words, they could not be regarded as referring to the Respondent but, as I have earlier said, to the innovation and the innovators. The Respondent is not one of the innovators. Even if they are taken to be so, the innuendo was not such as reasonable persons would draw the conclusions inferred therein.
The 2nd Appellant is a prominent member of the Muslim organization called Mujaidunal Islam and is in fact the Editor of the Almanac in which the alleged defamatory words were printed and published. The purpose of the magazine is the propagation of Islam.
The Respondent is an eminent public religious figure engaged in the propagation of Islam. The title conferred on the Respondent has a religious connotation. In my view, the 2nd Appellant in his capacity as the editor of Voice of Islam, had a duty to comment on the conferment of the chieftaincy on the Respondent as it was a matter of public interest. The publication even if remotedly considered to be defamatory, is well covered by the defence of fair comment.
In Hon. O. Awolowo v. Zik Enterprises Ltd. & Anor. 14 W.A.C.A. 696 where the innuendos pleaded were that the Plaintiff and certain other Ministers held a conference with the Government and a meeting with the Governor in order to interfere with the course of justice in certain cases- mentioned in the alleged libelous statements, it was held by the West African Court of Appeal that upon a reasonable construction, the first article could not be regarded as referring to the Plaintiff, but at the policy of the party, that is, Action Group; and that the second article in the first suit though it was capable of referring to the Plaintiff, the innuendo was not such as a reasonable person would draw.
Also in C. Nwachukwu v. J. Nnoremele (1957) 2 E.R.L.R. 50 where the Respondent sued the Appellant in the Magistrate Court alleging that the words uttered by the Appellant that “You silly Joseph Osu like you, you have no right to question my father.” The words were uttered at a meeting of the local village of Akwu Ato, in Owerri to which community both Appellant and Respondent belonged; it was held on appeal by Mbanefo J. (as he then was) that – (i) since the Osu system did not obtain throughout the region and had a local connotation, where it did obtain, it was essential for the Plaintiff to prove that a defamatory meaning would be placed on the expression “Osu” by those to whom the word was published, and that he had failed to do so; and (ii) the word “Osu” is not a word which the courts in the absence of evidence, can regard as being defamatory in its natural and ordinary meaning, for its meaning may vary from locality to locality.”
I am in entire agreement with the exposition of the law as above and I adopt it. The mere fact that you say to a man that he will go to hell because he is an innovator is not defamatory of him nor could such a defamatory meaning be inferred. The test has always been as Obaseki, J.S.C. has succinctly restated it in the following words in Dumbo v. Idugboe (1983) J.S.C. N.L.R. 29 at 48
In deciding whether words are capable of conveying defamatory meaning, the court will reject that meaning which can only emerge as the product of some strained or forced or utterly unreasonable interpretation (per Lord Morris in Jones v. Skelton (1963) 1 W.L.R. at p. 1370).
The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense. In determining whether the words are capable of a defamatory meaning, 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. The test according to Lord Selborne is whether, under the circumstances in which the writing was published, reasonable men to whom the publication was made would be likely to understand them in a libellous sense.”
See also the case of Okofo v. Midwest Newspaper Corporation (1977) 1 S.C. 33 and Okafor v. Ikeanyi (1971)3-4 S.C.99
The hierarchy of the Chieftaincy title in question is only limited to Ibadan and its Muslim community and the words complained of are not such that can be regarded as being defamatory in both their natural and ordinary meaning. They are nothing but vulgar statement and mere abuse. If the statement that a person will go to hell simpliciter is construed to be defamatory our courts of law will be honey-combed by litigation in defamation by opposing sects and groups in Islam as each regard certain religious practices in the other as inventions and those who practice them as innovators or unbelievers, whose actions will ultimately land them in hell fire.
For the reasons stated above, I shall allow this appeal, set aside the judgment of the Court of Appeal and in place thereof restore the order of dismissal of the suit, entered by the High Court. The suit is accordingly dismissed. The Appellants are awarded N500.00 costs in this appeal and N300.00 in the Court of Appeal.
OBASEKI, J.S.C.: I have had the advantage of a preview in draft of the judgment just delivered by my learned brother, Wali, J .S.C. and I agree I with my learned brother that there is substantial merit in the appeal and that it should be allowed…I find that the opinions of my learned brother in the said judgment on all the issues raised in the appeal for determination accord with mine and I hereby adopt them as my own.
The appellants were the defendants in a claim for N1,000,000.00 (One Million Naira) damages for libel and injunction instituted against them by the respondent as plaintiff. More expressly, the plaintiff claims:
(1) the sum of N1,000,000 (One Million) being damages for libel contained in an almanac “Voice of Islam” written by the second defendant which almanac is widely circulated in Nigeria and throughout the West Coast of Africa in the community known as Economic Community of West African States (ECOWAS);
(2) an injunction restraining the defendants, their agents or servants or otherwise from further printing, circulating, distributing or otherwise publishing any copies of the said Almanac.”
The Statement of claim in paragraphs 7, 8 and 9 alleges that:
“7. the defendants jointly and severally published falsely and maliciously in the said almanac under the photograph of the plaintiff the following words in Yoruba language to wit:
“Alhaji A.A. Ajagbemokeferi (Otun Balogun Oniwasu) Oye yi je oye yeye gegebi oye adadale ti Islam ko patapata. Egbo bi Anobi ti wi ki ike ati ola Olorun ko O ma ba. Ina ni ile gbogbo aladadale.” which literally translated into English language means that the chieftaincy title of the second in rank to the General of Muslim preachers held by the plaintiff is a worthless and valueless chieftaincy just like the chieftaincy titles of impostors and contrary to the tenets and teachings of Islam.
8. By the word of Anobi (Allah) woe betides such holders of such chieftaincy and their place is in hell after death. By the said words pleaded in paragraph 7 supra, reasonable people have understood it to mean that the plaintiff is not a fit and proper person to be conferred or holder of a religious chieftaincy of Muslim leader, more especially by this chieftaincy he has acted contrary to the teachings and tenets of Islam and his final place, is in hell and not paradise.
9. By reason of the publication of the words and the photograph of the plaintiff, the plaintiff has been greatly injured in his character, credit and reputation and has suffered damage. Many people have shunned the plaintiff and have avoided the plaintiff for (sic) assistance in prayers.”
The defendants/appellants in their statement of defence denied the facts pleaded in paragraphs 7, 8 and 9 of the statement of claim.
Paragraph 14 of the statement of defence then pleaded facts which negate the allegation in the statement of claim that the words were defamatory. It reads:
“With reference to paragraphs 7 and 8 of the statement of claim, the 2nd defendant says and will contend that
(i) the words complained of did not bear and were not understood to bear any defamatory meaning
(ii) the statement was not made concerning the plaintiff but in respect of the chieftaincy title and its creators of which the plaintiff was not named as one of them:
(iii) the words complained of were published bona fide and without malice towards the plaintiff on the occasion of qualified privilege;
(iv) in so far as the words complained of consists of statements of facts, they were true in substance and in fact;
(v) the words were fair bona fide comment without malice towards the plaintiff of facts truly stated which were a matter of public interest.”
The 2nd defendant then went on to plead in paragraph 15of the statement of defence that
“15. The statement literally translated into English means ‘This chieftaincy title is a ridiculous title like a self-established title to which Islam is completely opposed.”Hear what Mohammed said (Peace & Blessing of Allah be upon Him). “Hell is the abode of all those who indulge in self-establishment (i.e. of things contrary to the tenets and teachings of Islam)”
ii. The statement imports no imputation or reference to the propriety, suitability or otherwise of the plaintiff either personally or as a muslim teacher, preacher in being conferred with such a title or that the plaintiff is fake.”
The issue of;
(1) whether the words were defamatory;
(2) if defamatory whether the words were defamatory of the plaintiff were joined and became questions for determination by the learned trial Judge. The third issue is:
(3) if defamatory, whether the words were fair comment.
The learned trial Judge, Ayorinde J. considered these issues. He erroneously, in my view, held:
(1) that the words were defamatory in their meaning
(2) that they were defamatory of the plaintiff but
(3) that the words constituted fair comment.
I say the learned trial Judge was in error because the natural meanings of the words complained of cannot by any stretch of imagination be an attack on the suitability of the plaintiff to be conferred with or to be a holder of a religious chieftaincy of a Muslim leader.
However, the learned trial Judge dismissed the claim on the ground that the words were fair comment.
The plaintiff naturally appealed to the Court of Appeal on the grounds that the words were not fair comment. The defendants did not cross-appeal against the finding that the words were defamatory.
The Court of Appeal considered the oral and written submissions made to it and allowed the appeal. Belgore, J.C.A. (as he theft was), who read the lead judgment (concurred in by Omololu Thomas, J.C.A. and Onu, J.C.A.) held erroneously, in my view, that there was no evidence that the plaintiff/respondent was a public figure. He erroneously held that the idea that the plaintiff is a public figure was not pleaded by the 2nd defendant/respondent nor was it pleaded by the 1st respondent.
There is evidence by the plaintiff himself that he is a public figure. His witnesses also testified to that effect and that he is a forceful preacher. Paragraph 12 of the statement of defence of the 2nd defendant/respondent pleaded that he was a local preacher and was conferred with a chieftaincy title. It cannot be denied that a local preacher is a public figure neither can it be questioned that a chief is a public figure.
Departing from the libel pleaded, the learned justice said:
“To say that a muslim preacher by taking on a title has by that singular act made himself a sure candidate of hell is to say the least that he is no more a muslim and that nobody should listen to all his preachings as a muslim leader.
This was not the libel pleaded in paragraph 8 of the statement of claim. He then proceeded to observe that:
“It is however clear from the judgment of the learned trial Judge that he found the appellant had been defamed but unfortunately his holding that the words complained of amounted to fair comment is neither supported by evidence nor by law.
He then allowed the appeal and set aside the decision of the learned trial Judge and remitted the case to the High Court for assessment of damages by the learned trial Judge. Ayorinde J. The defendants have from this decision appealed to this court.
Briefs of argument have been filed by counsel to the parties and at the oral hearing, learned counsel elaborated on the submissions made in the written briefs. Only one issue was formulated in the appellants” brief. It is:
“whether or not having regard to the facts of this case, the defence of fair comment was available to the defendants.”
At the oral hearing, the issue on which the defence of fair comment is predicated surfaced. This issue is:
“whether the words complained of were defamatory having regard to the libel pleaded in paragraph 8 of the statement of claim.”
These issues have been fully examined and dealt with in the judgment of my learned brother. Wali, J.S.C. and I only have to add that I too can find no defamatory matter in the words complained of having regard to the facts pleaded in paragraph 8 of the statement of claim.
There is also abundant evidence from the plaintiffs witnesses that the words complained of have not brought the plaintiff into contempt and ridicule.
I will also and thereby allow the appeal. The decision of the Court of Appeal is hereby set aside and in its stead the claim is hereby dismissed (for reasons totally different from those given by the learned trial Judge) in that the words complained of were not defamatory of the plaintiff/respondent.
The appellants will have costs in this appeal fixed at N500.00 each and in the Court of Appeal N300.00 each.
OPUTA. J.S.C.: I have had the advantage of a preview in draft of the lead judgment just delivered by my learned brother, Wali. J.S.C. and I am in complete agreement with him that this appeal has merit and that same ought to be allowed.
The claim before the trial Court was for libel. The alleged libel appeared in an almanac tendered as Exh. B. On the right-hand corner of Exh. B was the photograph of the plaintiff and under that photograph appeared the words alleged to constitute the libel translated from Yoruba to English as follows:-
The Chieftaincy title of the second in rank to the general of Muslim preachers held by the plaintiff is a worthless and useless chieftaincy title of impostors and contrary to the tenets and teachings of Islam, By the words of Anobi (Allah) “woe betides such holders of the chieftaincy and their place is in hell after death.”
The plaintiff pleaded thus:
“8. By the said words pleaded in paragraph 7 supra reasonable people have understood it to mean that the plaintiff is not a fit and proper person to be conferred or holder of a religious Chieftaincy of Muslim Leaders more especially by this Chieftaincy he has acted contrary to the teachings and tenets of Islam and his final place is in hell and not paradise.
By reason of the publication of the words and the photograph of the Plaintiff, the Plaintiff has been greatly injured in his character, credit and reputation and has suffered damage. Many people have shunned the plaintiff and have avoided the plaintiff for assistance in prayer.”
The 2nd Defendant countered/as follows:-
With reference to paragraphs 7 and 8 of the Statement of Claim the 2nd Defendant says and will contend that:-
(i) The words complained of did not bear and were not understood to bear any defamatory meaning.
(ii) The statement was not made concerning the plaintiff but in respect of the Chieftaincy title and its creators of which the plaintiff was not named as one of them.
(iii) The words complained of were published bona fide and without malice towards the plaintiff on the occasion of qualified privilege.
(iv) ………………
Issues were therefore joined inter alia on:-
(i) Whether or not the words published were defamatory at all.
(ii) Whether or not the words referred to the plaintiff.
(iii) If the answers to (i) and (ii) above are both in the affirmative, whether or not the defences of fair comment and/or qualified privilege will avail the Defendants.
The learned trial Judge, Ayorinde, J. reviewed the available evidence and at p.178 lines 23 to 30 held as follows:-
“In the circumstance, I find as a fact that the words complained of refer to the plaintiff and are capable of bearing defamatory meaning.”
And ending his judgment at p.180, the learned trial Judge, after considering the defence of fair comment, reached the following conclusion:-
“It is my view and I find as a fact that the comments made are on a matter of public interest in view of the fact that it is accepted on all sides that the plaintiff is a public figure.”
Following the above finding, the learned trial Judge dismissed the plaintiff’s case “in its entirety.”
Dissatisfied and aggrieved, the Plaintiff appealed to the Court of Appeal Ibadan Division coram Belgore, Omololu Thomas and Onu, JJ.C.A. In a lead judgment (to which the other Justices of Appeal concurred), Belgore, J.C.A. (as he then was) held that:-
1. “The idea that the plaintiff is a public figure was not pleaded by the 2nd defendant/respondent nor was it pleaded by the 1st respondent and there was no evidence as to it (p.218 lines 17-20).
2. A defamatory statement of fact must be justified, if it is not justified it cannot be subject of privilege because the defence affair comment relates only to a statement made authoritatively as a fact which may not after all be true” (p.219 lines 5-8).
Having so held as above; the Court of Appeal allowed the Plaintiffs appeal and set aside the judgment of Ayorinde, J. and remitted the case to the trial Court for assessment of damages.”
The Defendants have now appealed to this Court. In their Brief of Argument, the Defendants! Appellants criticised one of the foundations of the Court of Appeal’s decision to reverse the judgment of the trial Court viz:-
“The second ground upon which the Court of Appeal reversed the judgment of the High Court can be gleaned from the last lines of page 218 where His Lordship said:-
‘Once’ the Judge had found that the words were not only capable of being defamatory but were in fact defamatory and indeed referred to the appellant he was in error to have held that the appellant is a public figure. The Law is very clear on what a Court has to do in determining what is fair comment.”
Learned Counsel for the Appellants argued that the above statement constituted a serious misdirection submitting that:-
“It is only after deciding that the words were capable of being defamatory; that they referred to the plaintiff; and were defamatory of him; that a consideration of the defence of fair comment (or any other defence) and its elements fell to be decided” (Italics mine).
Further on in the Brief, it was argued that the Plaintiff will have to make out a case – a prima facie case – before the defendants will be called upon for their defence. It is on this that I will like to make my own contribution.
The Issue for Determination as formulated in the Appellants’ Brief looks inelegant as it did not bring out forcibly and succinctly the contention that there ought to be established by evidence that there was a libel of the plaintiff before any defence to that libel can be usefully inquired into. The tort of defamation arises because every person has a right to the protection of his good name, reputation and the estimation in which he stands in the society of his fellow citizens: Scott v. Sampson (1882) 8 Q.B.D. 491 at p.503
Anybody who publishes anything injuring that good name, reputation or estimation commits the tort of libel (if written) and slander (if oral). The onus on the plaintiff in an action for libel is to prove that the defendant.
(i) published in permanent form a Statement;
(ii) that the statement referred to him;
(iii) that the statement was defamatory of him in the sense that;
(iv) it lowered him in the estimation of right-thinking members of the society or
(v) it exposed him to hatred, ridicule or contempt; or
(vi) it injured his reputation in his office, trade or profession; or
(vii) it injured his financial credit.
In other words, an imputation to be defamatory will have to he proved to have been to the discredit of the plaintiff. Two issues went to trial from the pleadings of the parties namely whether the words complained of referred to the Plaintiff and whether they were defamatory of the Plaintiff. What was the available evidence” P.W.2 Yisau Alamu testified at p.43 as follows:- “The said writing in exhibit “refers to the title conferred on the plaintiff as a worthless title. After reading exhibit “B” I did not regard plaintiff as a true believer and I ceased to have faith in him. Since the publication I have not seen many people from Togo to ask for introduction to the plaintiff. Before the publication, I used to bring persons to the plaintiff for prayers.”
The evidence of the P.W.2 above is that the writing in Ex. B referred to the title conferred on the plaintiff. Referring to the Plaintiff and referring to the title conferred on the Plaintiff are two different things. In the law of defamation what is to be proved is reference to the Plaintiff and not reference to any title conferred on him. This is hurdle No.1 which was not cleared.
The P.W.3, Alhaji Abdul Wahab Alagufon Mogaji Agba Agbeni Ibadan in his evidence testified:-
According to what is written in exhibit “8” it is a great insult to the Chief Imam and other moslems in Ibadan to say that they are inventors. The title being referred to as a worthless title is the one conferred on the plaintiff.”
Again it is the title conferred on the Plaintiff that is being referred to and not the Plaintiff. If Ex. B contains any libel at all, it ought to be one committed against the title conferred on the Plaintiff – that is if one can libel a title. Continuing his evidence the P.W.3 made this significant statement at P.47:-
‘The Chief Imam and we who belong to his sect were annoyed by this statement written below the photograph of the plaintiff. The statement is an insult to the sect.’
Not every statement that annoys is ipso facto defamatory nor is every abuse or insult actionable. In any event, the Plaintiff is not the Chief Imam and his (Plaintiffs) case is not group libel. But the part of the evidence of P.W.3 that is most relevant to the issue of libel is that at pp.47 and 49 viz:-
After I read the statement written under the photograph of the plaintiff in exhibit ‘B’ my sect did not think of removing the plaintiff from his title and the statement Ex. ‘B’ cannot remove him from his title p.47 and at p.49:-
“With or without the chieftaincy title the plaintiff is a respected preacher in his own right. Whatever anybody says about him will not affect my opinion of the plaintiff.”
If therefore the comments below the photograph of the plaintiff in Ex. B did not affect P.W.3’s opinion of the plaintiff then it follows that the very essence of defamation (lowering the reputation of the plaintiff in the opinion of right-thinking members of the society) is absent here or that P.W.3 is not a right-thinking member of the community. Why was he (P.W.3) called then
As if to seal the doom of plaintiffs case, the P.W.4 Mrs. Esther Olayemi Roberts at p.57 categorically gave the correct rendition of the alleged libel thus:-
“This chieftaincy is worthless like the chieftaincy titles that are fabricated and which Islam opposes vehemently. Heed what Prophet Mohammed said – Peace and Blessing of Allah be upon him. Hell is the abode of all fabricators.”
Then comes the evidence of P.W.4 expatiating on the alleged libel as follows:-
“The person who fabricates something is quite different from the person who wears the fabricated material or thing. The word ‘abricators’ in Ex. B refers to the persons who confer the title in question on the Plaintiff.. … The chieftaincy title conferred on the Plaintiff does not affect my relationship with him. I know the plaintiff as a Chief after I read Ex. ‘B’.”
On re-examination, P.W.4 made her point even clearer thus:-
…. The chieftaincy is the fabricated thing. The person on whom it is conferred is the plaintiff. The fabricators will be in the Islamic faith.
Now if the sting of the alleged libel EX.B is the expression – “Hell is the abode of all fabricators” then the evidence of P.W.4 has put it beyond doubt that the Plaintiff not being a fabricator was not the party being defamed.
From the evidence of P.W.2, P. W.3 and P.W.4, it is as clear as crystal that Ex.B, is not defamatory; that it does not refer to the Plaintiff; that the 3 witnesses called by the Plaintiff himself (P.Ws. 2, 3 & 4) have not thought G less of the Plaintiff because of EX.B. If then the Plaintiff was in fact not libeled in Ex. B, what is the need for the Defendants to set up any defence at all – Whether it be fair comment, qualified privilege or any other defence
In his own evidence at p.87lines 10 to 15 of the record, the Plaintiff himself testified that:-
“The writings in exhibit “B” refer to the Chieftaincy title which was conferred on me. In the writings, it is said that myself and all the persons who conferred the title on me will go to hell. My picture put above the writings complained of connects me with the writings.”
There is no doubt that EX.B connects the Plaintiff being the recipient of the chieftaincy title. But that is not to say that the Plaintiff by the mere presence of his picture in Ex. B. automatically became “an innovator” or “a fabricator.” Those warned against hell fire (not consigned to hell fire) were innovators and fabricators. Again is it not a dangerous departure from known legal procedure to make the civil Courts arbiters in matters of sin, heaven and hell My personal view is that our civil Courts are not proper for the discussion and determination of religious matters. Again even if one accepts the evidence of the Plaintiff that “the writings in Ex. B said that myself and all the persons who conferred the title on me will go to hell” then that becomes a group libel. There the onus is on the Plaintiff to show that the defamation, if any, referred to him individually since he is the complaining Plaintiff. This has not been done.
Another fatal flaw in the conduct of this case in the two courts below is that the facts and the issues in controversy were not adequately treated. It has to be observed that the law can only be successfully applied when issues of fact had been settled. Two issues arose from the pleadings of the parties. I listed these earlier on in this judgment viz:-”
1. Were the words in EX.B defamatory at all
2. Did these words refer to the Plaintiff
The trial Court finding that “the words complained of are capable of bearing defamatory meaning” did not answer the question whether the Plaintiff was defamed by those words. Also in a rolled up plea which is the essence of a defence of fair comment, the parties are entitled to have the finding of the jury on:-
1. Are the words complained of statements of fact or expression of opinion or partly one and partly the other
2. In so far as they are statements of fact are such statements of fact true
3. In so far as they are expressions of opinion do such expressions of opinion exceed the limits of fair comments
The two Courts below, with the greatest respect, did not advert their minds to the above requirement of the law. Seen in this light, one can then appreciate the point being made in the Issue for Determination as formulated in the Appellants’ Brief.
“Whether having regard to the facts of this case was the defence of fair comment available to the Defendant”
The answer should be that having regard to the evidence of P.W.2, P.W.3 and P.W.4 and even the evidence of the Plaintiff himself, no defamation had been established and therefore no defence of fair comment or any other is necessary.
In the final result and for all the reasons set out above and for the fuller reasons in the lead judgment of my learned brother, Wali, J.S.C., which I now adopt as mine, I hold that the learned trial Judge was right in dismissing the Plaintiffs case but he gave a wrong reason. The Plaintiffs case foundered on failure to prove that Ex.B was defamatory of the Plaintiff. This has to be established before the defence of fair comment can even arise. And the defence as pleaded was that Ex.B was not defamatory. Fair comment was thus pleaded in the alternative. I will allow this appeal, set aside the judgment of the Court below and restore the judgment of the trial court dismissing the plaintiffs claim. I will award N500 costs to the Defendants/Appellants in this Court and N300.00 in the court below.
AGBAJE, J.S.C.: The plaintiff, Alhaji Azeez A. Ajagbemokeferi, sued the defendants Sketch Publishing Company Ltd. and Alhaji Shehu Akorede Azeez in an Ibadan High Court claiming N1,000.000.00 (One Million Naira) damages for libel. The alleged libellous publication according to the plaintiff was contained in a 1979 Almanac titled Voice of Islam published by the 2nd defendant and printed by the 1st defendant.
Pleadings were ordered and delivered in the High Court. The relevant portions of the Statement of Claim of the plaintiff for the purposes of the appeal now before us are as follows:-
“1. The Plaintiff is a prolific muslim Preacher and ardent believer in the tenets and ideals of Islam and resides at IFE ROAD, IBADAN.
5. The Plaintiff is a great Muslim Evangelist and preacher and has his reputation throughout the Muslim world as a prolific preacher and converter (sic) of many people to Islam through his preaching, that he was nicknamed and called Ajagbemokeferi, meaning that his vocality (sic) to pagans has converted many to the Muslim religion. In consequence of his depth of the Islam religion and a strong believer in the tenets and ideals of the Muslim religion and a prolific preacher and crusader he was conferred with the Chieftaincy Title of OTUN BALOGUN ONIWASU by the Chief Imam of Ibadan ABDULAHI ALHAJI MUYILI, the head and leader of the Muslim community in Ibadan and was turbaned on 5th August, 1978.
6. The Plaintiff has a slot every Friday on the National Television Authority, Ibadan and his programme centres on the preaching of Islam from the HOLY KORAN. By this Television Programme the Plaintiff is known throughout the length and breadth of Nigeria as a devoted and upright Muslim.
7. The Defendants jointly and severally published falsely and maliciously in the said Almanac under the photograph of the Plaintiff the following words in Yoruba Language to wit:
“ALHAJI A. A. AJAGBEMOKEFERI (OTUN BALOGUN ONIWASU) Oye yi je oye yeye gegebi oye Adadale, ti Islam ko patapata Egbo bi ANOBI ti wi ki Ike ati ola Olorun ki omaba. Ina ni ile gbogbo Aladadale” which literally translated into English Language means that the Chieftaincy title of the Second in Tank to the General of Muslim preachers held by the plaintiff is a worthless and valueless Chieftaincy just like Chieftaincy titles of Impostors and contrary to the tenets and teachings of Islam. By the word of ANOBI (ALLAH) woe besides (sic) such holders of such Chieftaincy and their place is in hell after death.
8. By the said words pleaded in paragraph 7 supra reasonable people have understood it to mean that the Plaintiff is not a fit and proper person to be conferred or holder of a religious Chieftaincy of Muslim leader, more especially by this Chieftaincy he has acted contrary to the teachings and tenets of Islam and his final place is in hell and not paradise.”
Both defendants denied liability in their Statements of Defence. By paragraphs 14and 15of his Statement of Defence the 2nd defendant pleaded thus:-
“14. With reference to paragraphs 7 & 8 of the Statement of Claim the 2nd defendant says and will contend that:-
(i) The words complained of did not bear and were not understood to bear any defamatory meaning.
(ii) The statement was not made concerning the plaintiff but in respect of the chieftaincy title and its creators of which the plaintiff was not named as one of them.
(iii) The words complained of were published bonafide and without malice towards the plaintiff on the occasion of qualified privilege.
(iv) In so far as the words complained of consists of statement of facts they were true in substance and in fact.
(v) The words were fair bonafide comment without malice towards the plaintiff of facts truly stated which were a matter of public interest.
15. The 2nd defendant will rely on the following facts and matters in support of allegations in paragraph 14(iv) above that.
(i) The statement literally translated into English means “This chieftaincy title is a ridiculous title like a self-established title to which Islam is completely opposed. Hear what Mohammed said (Peace & Blessing of Allah be upon him) ‘Hell is the abode of all these who indulge in self-establishment (i.e. of things contrary to the tenets and teachings of Islam)’
(ii) The statement imports no imputation or reference to the propriety, suitability or otherwise of the plaintiff either personally or as a Muslim preacher in being conferred with such a title or that the plaintiff is a fake.
(iii) The title “OTUN BALOGUN” is a secular one pertaining to traditional Chiefs with superior and subordinate ranks or offices.
(iv) Oniwasu literally translated into English means ‘a preacher’ and it has no hierarchy in Muslim religion, teaching and law.
(v) The naming or installing of a person as Otun Balogun (Secular Chieftaincy title) is self-created practice contrary to the tenets and teachings of Mohammed and the practice cannot be supported by the Holy Koran nor can it be found in any of the Hadiths.”
The case proceeded to trial before Ayorinde J. who having heard the parties and their witnesses held that the words complained of by the plaintiff referred to him and were capable of hearing defamatory meaning and were infact defamatory of the plaintiff. The learned trial Judge however eventually dismissed the plaintiffs claim on the grounds that the defendants’ defences of fair comment and qualified privilege succeeded. It is worthy of note that the learned trial Judge accepted the meaning in English language which the 2nd defendant both in his pleading and in evidence in court ascribed to the words of Yoruba language complained of by the plaintiff.
The plaintiff appealed against the judgment of the High Court Ibadan to the Court of Appeal Ibadan Division. That court reserved the decision of the trial court holding that it was wrong in upholding the defences of fair comment and qualified privilege or either of them set lip by the defendants. The Court of Appeal, the lower court remitted the case to the trial court for assessment on damages.
The defendants hearing dissatisfied with the judgment of the Court of Appeal have now appealed against it to this court. Briefs of arguments were filed on both sides. It appears clear from the briefs of arguments that the only issue for determination in this appeal is whether or not having regard to the facts of this case the defence of fair comment raised by the defendants succeeded as the trial court held.
Before I proceed I must say that the question whether the words complained of were in fact defamatory of the plaintiff is not an issue before us. The point must also be made that the plaintiff in his statement of claim is complaining about the literal and ordinary meaning of the words giving rise to this action. No innuendo was pleaded and consequently none was given in evidence. No doubt the plaintiff ascribed to the words complained of the meaning which according to him the words were capable of bearing. The 2nd defendant did the same thing. And as I have said above the learned trial Judge accepted the version of the 2nd defendant, which I have already copied above.
In the case of words defamatory in their ordinary sense, as is the case here, the plaintiff has to prove no more than they were published: he cannot call witnesses to prove what they understood by the words nor will it avail the defendant to call any number of witnesses to say that they did not believe the imputation. The only question is: ‘might reasonable people understand them in a defamatory sense See Hough v. London Express (1940) 2 K.B. 507 at p.515 per Goddard L.J.
In the circumstance, this court is in a good a position as the learned trial judge to determine what is the natural and ordinary meaning of the words complained of See Slim v. Daily Telegraph Ltd. (1968) 2 Q.B. 157 at 177.
The only thing this court cannot now do is to reverse the finding of the trial court that the words were defamatory of the plaintiff since that issue is not before us in this appeal. However this court in maintaining that part of the finding of the trial Judge is not necessarily bound by the reasons given by the learned trial Judge for coming to that decision. This court as I have said is in the same position as the trial Court was to draw the proper inferences from the words complained of since no question of credibility of witnesses was involved. See also involved. See also Oluwo v. Akinola (1962) 1 ALL N.L.R. (Part 11) p. 224.
As I have said the only issue for consideration in this case is whether or not the plea of fair comment by the defendants ought to succeed. As to the law on the point, counsel to the respondent Dr. Aremu has correctly directed this court as follows in his brief of arguments for the plaintiff.
“In Gatley on Libel and Slander, it is provided at paragraph 704 that:
To succeed in a defence of fair comment the words complained of must be shown to he:
(1) Comment
(2) Fair comment
(3) Fair comment on some matter of public interest.”
Paragraph 716 of Gatley further provides that in order that a comment may be regarded as fair, the following conditions must be satisfied:
(a) It must be based on facts truly stated.
(b) It must not contain imputations of corrupt or dishonourable motives on the person whose conduct or work is criticized, save in so far as such imputations are warranted by the facts.
(c) It must he the honest expression of the writer’s real opinion.” – See Silkin v Beaverbrook Newspapers (1958) 2 ALL E.R. 516; (1958) 1 W.L.R.743.”
Counsel for the respondent has also candidly pointed out to this court that the following are common grounds in the case now before us on appeal:-
“(a) That the Plaintiff was conferred with the title of Otun Balogun Oniwasu” of Oyo State.
(b) That the title is a Yoruba traditional title.
(c) That the title is an innovation.”
I may only add to this that the plaintiff as the 8th Plaintiff witness himself said in cross-examination as follows:-
It is a fact that Anobi Mohammed said any person who could add innovation to what I have said would go to hell.”
So it can safely be said that it is common ground in this case too that the passage in the words complained of wherein it is said that Holy Prophet Mohammed said hell is the abode of all innovators is common ground in the sense that infact the Holy Prophet Mohammed said so.
For ease of reference I reproduce the words complained of in their English version according to the 2nd defendant which the learned trial Judge accepted:-
15 (i) The statement literally translated into English means “This chieftaincy title is a ridiculous title like a self-established title to which Islam is completely opposed. Hear what Mohammed said (Peace & Blessing of Allah be upon him) “Hell is the abode of all these who indulge in self-establish merit (i.e. of things contrary to the tenets and teachings of Islam)”.
We can also take the common grounds in this case as I have stated them as the facts in the offending publication. The rest of the publication is comment on those facts. The comment is therefore as follows:-
“Alhaji A. A. Ajagbemokeferi (Otun Balogun Oniwasu) Oye yi je oye yeye gegebi oye aladadale ti Islam kole patapata.” meaning:-
“This title is a worthless chieftaincy just like chieftaincy titles of inventors and contrary to the tenets and teachings of Islam.”
So the question is whether or not the defence of fair comment will avail the defendants in the circumstances of this case as I have just stated them. The comment no doubt is on religious matters. Counsel for the plaintiff was again candid enough to concede it that religious matter may amount to matters of public interest. He referred to the case of London Artists v. Littler (1969) 2 Q.B. 375 at 391 per Lord Denning and Gatley on Libel and Slander 7th edition paragraph 736. I agree with him.
There can be no doubt that on the facts pleaded in paragraphs 1, 5 and 6 of the plaintiffs Statement of Claim the plaintiff is evidently a public figure and since those facts have been pleaded by the plaintiff himself there is no need for the defendant to plead any further facts showing that the plaintiff is a public figure or to lead evidence to that effect. The fact that the defendants did not admit any averments pleaded by the plaintiff in his Statement of Claim will not make such averments less binding on the plaintiff for the simple reason that a party is bound by his pleadings. I am satisfied that this is not a situation where the defendants need to aver in their Statement of Claim the fact that the plaintiff is a public figure before they can rely on that fact in the trial of this case.
The true legal position is this: A defendant is not entitled to rely upon a defence which is based upon facts not stated in the Statement of Claim unless he alleges such facts specifically in his pleadings by way of special defence. See National Investment and Property Company Ltd. and Anor. v Bank of West Africa Ltd. (1962) 1 ALL N.L.R. (part 4) 556, 557 and 566.
So I am satisfied that the Court of Appeal was wrong in coming to the conclusion that in the instant case on the state of the pleadings the plaintiff was not a public figure.
I have isolated the comments from the facts in this case. I have also said that the comments are on matters of public interest seeing that the comments relate to religious matters.
What remains to be decided now is whether the comments amount to a fair comment. It is crystal clear that the comments relate to the chieftaincy title itself and to the actions of innovators, the inventors of the title. The comments cast no aspersion whatsoever on the person of the plaintiff the recipient of the chieftaincy title. Having regard to the saying of the Holy Prophet Mohammed that hell is the abode of all innovators one cannot help but come to the conclusion that the opinion expressed in the comment was honestly held by the writer of the comment.
In the following passage from his summing-up in Stopes v. Sutherland, House of Lords printed cases (1924) at p.375 Lord Hewart C.J. points out the latitude of fair comment:
What is it that fair comment means It means this-
and I prefer to put it in words which are not my own; I refer to the famous judgment of Lord Esher M. R. in Merivale v. Carson: ‘Every latitude, said Lord Esher, ‘must be given to opinion and to prejudice, and then an ordinary set of men with ordinary judgment must say (not whether they agree with it, but) whether any fair man would have made such a comment: Mere exaggeration, or even gross exaggeration, would not make the comment unfair. However wrong the opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within the prescribed limit. The question which the jury must consider is this – would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said’ Again as Bray J. said in R. v. Russell: ‘When you come to a question of fair comment you ought to he extremely liberal, and in a matter of this kind – a matter relating to the administration of the licensing laws – you ought to be extremely liberal, because it is a matter on which men’s minds are moved, in which people who do know, entertain very, very strong opinions, and if they use strong language every allowance should be made in their favour. They must believe what they say, but the question whether they honestly believe it is a question for you to say. If they do believe it, and they are within anything like reasonable bounds, they come within the meaning of fair comment.
If comments were made which would appear to you to have been exaggerated, it docs not follow that they arc not perfectly honest comments.’
That is the kind of maxim which you may apply in considering whether that part of this matter which is comment is fair. Could a fair-minded man, holding a strong view, holding perhaps an obstinate view, holding perhaps a prejudiced view-could a fair-minded man have been capable of writing this – which, you observe is a totally different question from the question, do you agree with what he has said’
Having regard to the latitude of fair comment as I have just stated it, I am satisfied that the learned trial Judge was right in the views he expressed in the following passage from his judgment:-
“It is my view and I find as a fact that the comments made are on matter of public interest in view of the fact that it is accepted by all sides that the plaintiff is a public figure. The title given to him generated a lot of controversy. The evidence of the 2nd defendant whom I believe refers; the words complained of can only be regarded as criticism of the conferment of the chieftaincy title conferred on the plaintiff. The criticism has been said to be an honest opinion and as I have found are supported by the relevant provisions of the Koran and Hadith referred to.”
I am therefore satisfied that the learned trial judge was right in upholding the plea of fair comment out up by the defendants and the Court of Appeal was wrong in overturning that decision.
A plea of fair comment is predicated on the point that the words complained of were defamatory and I have made the point that the issue as to whether the words complained of were defamatory was not an issue before us in this appeal. If that issue had been open to the decision of this court I would have held that the whole of the words complained of in their natural and ordinary meaning are not capable of being defamatory of the plaintiff and were in fact not defamatory of him. The whole criticisms in the words complained of were directed against the innovators that is, the creators of the chieftaincy title conferred on the plaintiff. There is no direct or indirect attack on the plaintiff in the words complained of. This being so I would have held that the trial court was even wrong in holding that the words were defamatory of the plaintiff. In any case the point does not arise here. So I leave it at that.
For the above reasons and the fuller reasons given in the lead judgment of my learned brother Wali, J.S.C. which 1 have had the opportunity of reading in draft, I will allow the defendants’E2’80’99 appeal, set aside the decision of the Court of Appeal, Ibadan Division and in its place restore the judgment of Ayorinde J. dismissing the plaintiffs claim. The defendants are entitled to their costs in this court and in the Court below, the Court of Appeal, which I assess at N500.00 and N300.00 respectively.
CRAIG, J.S.C.: I have had a preview of the judgment of my learned c brother Wali, J.S.C., and I am in complete agreement with him that this appeal should be allowed.
The action which gave rise to this appeal was commenced at the Ibadan High Court by a Writ of Summons in which the Plaintiff claimed a sum of N1,000,000.00 (One Million Naira) being damages for libel:
“falsely and maliciously published of the plaintiff in a 1979 Almanac, known as the “VOICE OF ISLAM” which Almanac was printed and which almanac has been sold throughout the Federal Republic of Nigeria and the West Coast of Africa in the region covering ECOWAS.”
The plaintiff set out the words complained of, and later in paragraphs 5-9 of his Statement of Claim, he gave more details of the libel. In those paragraphs, he pleaded that:
The Plaintiff is a great Muslim Evangelist and preacher and has his reputation throughout the Muslim world as a prolific preacher and converter of many people to Islam through his preaching, that he was nicknamed and called Ajagbemokeferi, meaning that his vocality to pagans has converted many to the Muslim religion. In consequence of his depth of the Islam religion and a strong believer in the tenets and ideals of the Muslim religion and a prolific preacher and crusader he was conferred with the Chieftaincy Title of OTUN BALOGUN ONIWASU by the Chief Imam of Ibadan ABDULAHI ALHAJI MUYILI, the head and leader of the Muslim community in Ibadan and was turbaned on 5th August 1978.
6. ……………………………………
7. The Defendants jointly and severally published falsely and maliciously in the said Almanac under the photograph of the Plaintiff the following words in Yoruba Language to wit.
“ALHAJI A.A. AJAGBEMOKEFERI (OTUN BALOGUN ONIWASU) Oye yi je oye yeye gegebi oye Adadalc, ti Islam ko patapata. Egbo bi ANOBI ti wi ki Ikc ati ola Olorun ki omaba. Ina ni ile gbogbo Aladadale” which literally translated into English Language means that the Chieftaincy title of the Second in rank to the General of Muslim preachers held by the plaintiff is a worthless and valueless Chieftaincy just like Chieftaincy titles of impostors and contrary to the tenets and teachings of Islam. By the word of ANOBI (ALLAH) woe betides such holders of such Chieftaincy and their place is in hell after death.
8. By the said words pleaded in paragraph 7 supra reasonable people have understood it to mean that the Plaintiff is not a fit and proper person to be conferred or holder of a religious Chieftaincy of Muslim Leader, more especially by this Chieftaincy he has acted contrary to the teaching and tenets of Islam and his final place is in hell and not paradise.
9. By reason of the publication of the words and the photograph of the Plaintiff, the Plaintiff has been greatly injured in his character, credit and reputation and has suffered damage. Many people have shunned the plaintiff and have avoided the Plaintiff for assistance, in prayers.”
Both Defendants deny the above averments and put the plaintiffs to the strict proof of them. In particular, the 2nd Defendant denied that he had libeled the plaintiff and gave what he considered to be the correct translation of the words complained of. This is what he averred:
’14. With reference to paragraphs 7 and 8 of the Statement of Claim the 2nd defendant says and will contend that:-
(i) The words complained of did not bear and were not understood to bear any defamatory meaning.
(ii) The statement was not made concerning the plaintiff but in respect of the chieftaincy title and its creators of which the plaintiff was not named as one of them.
(iii) The words complained of were published bonafide and without malice towards the plaintiff on the occasion of qualified privilege.
(iv) In so far as the words complained of consists of statement of facts they were true in substance and in fact.
(v) The words were fair bonafide comment without malice towards the plaintiff of facts truly stated which were a matter of public interest.
15. The 2nd defendant will rely on the following facts and matters in support of allegations in paragraph 14(iv) above that:
(i) The statement literally translated into English means “This chieftaincy title is a ridiculous title like a self-established title to which Islam is completely opposed. Hear what Mohammed said (Peace and Blessing of Allah be upon him) “Hell is the abode of all these who indulge in self-establishment (i.e. of things contrary to the tenets and teachings of Islam)”.
(ii) The statement imports no imputation or reference to the propriety, suitability or otherwise of the plaintiff either personally or as a Muslim preacher in being conferred with such a title or that the plaintiff is a fake. (Italics mine).
The alleged defamatory words were written in Yoruba language, and this means that if the Plaintiff’s translation is correct, then the words would, prima facie, be libelous. The plaintiff states that he is “a great Muslim Evangelist” and a “prolific preacher” with reputation “throughout the Muslim world.” It would therefore in my view, prima facie, be defamatory for the defendants to refer to him as an “impostor.”
But if the Defendant’s translation of the libel were correct, then, it would appear that the Defendants’ comments were directed at the ‘originators’ or ‘inventors’ of new titles and not to the ‘holders’ of those titles.
The trial Court seemed to have accepted the plaintiffs version of the translation for it eventually found that the defendants had defamed the plaintiff although it later upheld the Defendant’s plea of fair comments and dismissed the suit.
Now, it did not appear that the learned trial Judge gave any consideration to the evidence of the plaintiffs witnesses whose translation of the words agreed with that of the Defendants. The 2nd P.W. Yisau Alamu stated:
“The said writing in Exhibit “B” refers to the title conferred on the plaintiff as a worthless title”
and when cross-examined:
‘I agree with Counsel that the plaintiff is not being regarded as the inventor.’
The 3rd P.W. Alhaji Abdul Wahab Alagufon, also said:
I can read Yoruba language. It is said in Exhibit B that the title conferred on the plaintiff is a worthless title. According to what is written in Exhibit ‘B’ it is a great insult to the Chief Imam and other moslems in Ibadan to say that they are inventors. The title being referred to as a worthless title is the one conferred on the plaintiff. The statement “Ina ni ile gbogbo aladadale” in Yoruba means in English ‘Hell is the Home of Inventors.’ The Chief Imam and we who belong to his sect were annoyed by this statement written below the photograph of the plaintiff. The statement is an insult to the sect.”
In her own evidence, Mrs. Esther Olayemi Roberts 4th P.W. was asked to translate the offending words and she said:
“I now refer to the writings in Yoruba below the photograph of the plaintiff in Exhibit B. It reads:
“This chieftaincy is worthless like the chieftaincy titles that are fabricated and which Islam oppose vehemently. Hear what Prophet Mohammed said – Peace and Blessing of Allah be upon him. Hell is the abode of all fabricators.”
The person who fabricates something is quite different from the person who wears the fabricated material or thing. The word “fabricators” in Exhibit ‘B’ refers to the persons who confer the title in question on the Plaintiff.”
Earlier in the proceedings, in the course of the evidence of the 2nd P.W., the Clerk of Court was asked to translate the words complained of into English, and he is recorded at page 43 of the Records as saying:
‘Translated by the Clerk of court as ‘This chieftaincy title is like a self-made title that Islamic Religion is against. You hear what Anobi said – May the blessing of Allah be with him – Hell is the Home of Inventors.”
Lastly, the 6th P.W. Alhaji Oseni Ibiyemi Atoyebi gave this succinct interpretation of the offending words:
“This chieftaincy is an innovation. Every innovator is going to Fire or Hell.”
I have gone to this lengthy extent in order to show that on the most generous interpretation of the words complained of, the appellant could not have succeeded on his claim for libel. The alleged defamatory words do not refer to him and he was in fact not libeled; what is more, his witnesses said so. It seems to me, from all these that the trial Judge was wrong to have found that the words were defamatory of the plaintiff.
Now, the appeal which went before the Court of Appeal was on the sole issue as to whether the defendants” plea of fair comments could be sustained.
The lower Court held that it could not, thus in effect agreeing with the trial Judge that the plaintiff had been libeled.
In consequence, the lower Court sent the case back lathe trial Court for an assessment of the appropriate damages payable to the plaintiff. The Defendants were dissatisfied with that judgment and have appealed to this Court on several grounds of appeal, but in their Briefs of argument, both Counsel are agreed that the only issue for determination is:
“Whether or not having regard to the facts of this case, the defence of fair comments was available to the Defendants.”
It seems to me that on that agreed issue as formulated by both parties, this Court is being asked to examine the words written by the Defendants, and to say whether in Law and on the facts of this case, it is reasonable to hold that those words had given rise to a plea of fair comments.
It is accepted that a plea affair comments is one of the defences available to a defendant in a claim for libel: other defences are those of justification and privilege…
In my view, the Court would have to satisfy itself first, that the case for libel has been established, before it goes on to consider any defence which the defendant has put up in answer to the libel.
In the instant case, the plaintiff’s witnesses stated that the words complained of did not refer to the plaintiff and as I previously said, his claim for libel should have been dismissed.
In that event, if the plaintiff was not defamed, it became unnecessary for either the trial Court or the Court of Appeal to consider the issue whether or not the plea of fair comments would succeed.
For these reasons and as well as for the fuller ones contained in the lead judgment, I would allow this appeal and set aside the judgment of the lower Court. I would also make the same consequential orders as have been made by my learned brother WALI, J.S.C.
Appeal Allowed.
Appearances
Chief M. Esan (with him, Mrs. O. Olatunji) For Appellant
AND
Dr. L. O. Aremu For Respondent