VANGUARD MEDIA LIMITED & ORS V. OTUNBA ADEBIYI O. OLAFISOYE (2011)

VANGUARD MEDIA LIMITED & ORS V. OTUNBA ADEBIYI O. OLAFISOYE

(2011)LCN/4453(CA)

In The Court of Appeal of Nigeria

On Monday, the 11th day of April, 2011

CA/L/926/2008

RATIO

LIBEL: BURDEN PLACED ON A CLAIMANT TO SUCCEED IN AN ACTION FOR LIBEL

It is trite law and as rightly submitted by both counsel that to succeed in a claim of libel, the claimant must have to prove that he has been discredited by the imputation in the alleged statement without legal justification. PER CLARA BATA OGUNBIYI, J.C.A.

DEFAMATION: WHETHER IN AN ACTION FOR DEFAMATION, A PERSON’S REPUTATION IS BASED ON THE ESTIMATION IN WHICH OTHERS HOLD OF HIM

It is also trite law that a person’s reputation is not based on the opinion he has of himself but rather the estimation in which others hold of him. PER CLARA BATA OGUNBIYI, J.C.A.

DEFAMATION: WHETHER THE THE COURT MUST APPLY THE TEST OF REASONABLENESS TO DETEMINE WHETHER OR NOT A WORD CONVEYS A DEFAMATORY MESSAGE

In order for the court to determine whether the words convey a defamatory message, the test of reasonableness must be applied for deciding that purpose. The court will therefore construe the words according to the fair and natural meaning which would be given them by reasonable person of ordinary intelligence. Again see the cases of Giwa Adamu v Guardian Newspaper Ltd., Sketch Publishing Co. Ltd. V Ajagbemokeferi (supra) and punch (Nig.) Ltd. V Eyitene (2001) 17 NWIR (pt.741) p.228″. PER CLARA BATA OGUNBIYI, J.C.A.

LIBEL AND SLANDER: DEFINITION OF THE LAW ON LIBEL AND SLANDER

The Law on libel and slander has been clearly defined in the introduction to the eighth edition of Gatley on Libel and Slander published in 1981 by Sweet and Maxwell, London as, “a man’s right to his un-dented reputation.” The corollary therefore is apt that where a man’s reputation is dented as a result of words spoken or written about him in permanent form by another person, he is deemed to have been defamed. At paragraph 4 of page 6 of the publication, the author had thus to say:- “Any imputation which may tend “to lower the plaintiff in the estimation of right-thinking members of the society generally,” “to cut him off from society,” or “to expose him to hatred, contempt or ridicule” is defamatory to his reputation.” PER CLARA BATA OGUNBIYI, J.C.A.

DEFAMATION: WHETHER THE TEST IN DETERMINING WHETHER CERTAIN WORDS ARE DEFAMATORY OR NOT IS THAT OF REASONABLE PEOPLE IN THE CIRCUMSTANCES OF EACH CASE

An imputation may be defamatory whether or not it is believed by those to whom it is published. It can also be defamatory whether or not it is true; conversely, untruth alone does not render an imputation defamatory. In the case of Dina v New Nigerian Newspaper (1985) 2 NWLR (Pt.22) 353, it was held that the test in determining whether certain words are defamatory or not is that of reasonable people in the circumstances of each case. The interpretation of the words written or spoken is a question of fact and is what the ordinary man would infer without special knowledge. PER CLARA BATA OGUNBIYI, J.C.A.

DEFAMATION: DEFINITION ON THE LAW OF DEFAMATION

Also at paragraph 3 page 4 of the same write up by Gatley on libel supra the law of defamation and the offence of libel are further also defined as follows:- “A man commits the tort of defamation when he publishes to a third person words (or matter) containing an untrue imputation against the reputation of another… Broadly speaking, if the publication is made in permanent form or is broadcast or is part of a theatrical performance, the matter published is a libel…” PER CLARA BATA OGUNBIYI, J.C.A.

DEFAMATION: WHETHER PUBLICATION OF DEFAMATORY WORDS GIVES RISE TO A PRIMA FACIE CAUSE OF ACTION AND WHAT IS A DEFAMATORY PUBLICATION

At paragraphs 5-6 at page 6 of the said write up the author in explaining the effect of publication said:- “The publication of words defamatory of the plaintiff gives rise to a prima facie cause of action. The law presumes in the plaintiff’s favour that the words are false, unless and until the defendant proves the contrary. Nor need the plaintiff prove malice on the part of the defendant unless and until, the judge rules that the words were published on a privileged occasion. In libel, damages to the plaintiff are presumed and libel is actionable without proof of special damages.” The same author at paragraph 1065 went further to emphasize that:- “The statement of claim must, in principle, show that the words were published on a stated occasion to a named person or persons other than the plaintiff.” In the case of Basorun v Ogunlewe (2000) 11 NWIR (pt.640) pages 223-238 at 231 Aderemi JCA (as he then was) held and said:- “Publication of a defamatory statement is an essential element of the cause of action in libel cases……. And publication is the act of making the defamatory statement known to any person other than the plaintiff himself. Of course publication must be proved by credible evidence.” Again and in a further decision of this court in the case of Okolie v Marinho (2005) 15 NWLR (Pt.1002) at page 335, Akaahs JCA found and said:- “A defamatory publication is one that is calculated to lower the person in the estimation of 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. The test to be applied in determining whether or not the words complained of are defamatory in their natural and ordinary meaning is whether under the circumstances of reasonable man to whom the publication was made would likely understand it in a libelous sense. Furthermore, in defamation the published word complained of must be read as a whole.” PER CLARA BATA OGUNBIYI, J.C.A.

JUSTICES

CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

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

Between

1. Vanguard Media Limited

2. Mr. Kunle Oyatomi

3. Mr. Sam Amuka-Pemu

4. Alhaji Kola Animasaun – Appellant(s)

AND

Otunba Adebiyi O. Olafisoye – Respondent(s)

CLARA BATA OGUNBIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the final judgment of the Lagos High Court delivered on the 18th July, 2008, wherein judgment was given in favour of the respondent/claimant.

The action was commenced by the Respondent/Claimant against the Appellants/Defendants by a writ of summons dated 19th July, 2002 and a statement of claim dated 8th day of July, 2002. In the writ of summons and the statement of claim the Respondent/Plaintiff at pages 77 and 78 of the record claimed against the defendants jointly and severally as follows:-

“(a) The sum of N100, 000, 000.00 (one Hundred Million Naira) being general damages suffered by the plaintiff on account of the malicious and libelous publication by the Defendants of an Article captioned; “This man could commit murder” in the 8th July 2001 edition of the Sunday Vanguard, which was widely and extensively sold and distributed all over Nigeria, overseas and more particularly in Lagos within the jurisdiction of this Honourable Court;

(b) The sum of N100, 000, 000.00 (one Hundred Million Naira) being damages for the libel of the plaintiff by the malicious And false publication by the defendants of an Article captioned: “so, ignorance is expensive!” in the 19th August 2001 edition of the Sunday Vanguard, which was widely and extensively distributed and sold all over Nigeria and overseas and more particularly within the jurisdiction of this Honourable court.

(c) The sum of N100, 000, 000.00 (one Hundred Million Naira) being aggravated damages for the repeated publication of libel against the plaintiff by the defendants.

(d) An order of perpetual injunction restraining the defendants, their servants, agents or privies from further writing, printing, publishing or causing to be written, printed or published the aforesaid Articles or words used therein or similar words defamatory of the plaintiff.

The said writ of summons and statement of claim were however amended pursuant to the order of court and consequent upon which an amended writ of summons and an amended statement of claim containing reliefs as in the earlier writ of summons dated 19th July, 2002 and the statement of claim dated 8th July 2002 were filed accordingly. Pages 71,-78 of the record of appeal are in evidence.

In response to the claims of the Respondent/Claimant, the 1st Defendant through her solicitors filed a statement of defence and counter-claim, dated 13th September 2002 vide pages 88-92 of the record of appeal. An amended statement of defence and counter claim dated 18th November 2002were also later filed as shown at pages 93-92 of the record of appeal.

The respondent/claimant in response to the amended statement of defence filed a Reply and a Defence to the counter claim dated 3rd February 2003 as shown also at pages 108 – 109 of the record of appeal.

Trial commenced on 15/3/06. In the course of the evidence in chief of claimant and after three witnesses had given evidence, defence counsel approached the court for settlement out of court in 2006 as evidenced at paragraphs 4-5 of page 158 of the Record. The settlement however broke down and the parties had to return to court and the trial ended on 22nd January 2008.

The Respondent/Claimants’ case during the trial was that the Defendant/Appellants libeled him by publishing in the 8/7/01 and 19/8/01 editions of the Sunday Vanguard Articles that described him as insane, a murderer who could kill. The claimant stated that the defendant libeled him when the 4th defendant/appellant published in his “voice of reason” column of 8th July 2001 the words:-

“There is this thing about the rabid dog: it usually runs muck and when it does, it can be very dangerous. Anyone it bites stands the risk of being infected with rabies, which I understand is a very life-threatening disease except immediate treatment is available. It was with trepidation that I read in the papers that Adebuyi Olafisoye, super-rich Managing Director of Fidelity Bond of Nigeria “runs muck, attacks Vanguard staff.”

I understand rabies attack the nervous system and running muck is an indication of the ill-health of the nervous system. It can be temporary insanity.

The story carried a confirmation empirical evidence – of the state of mind of the victim. The report stated that not only did Adebiyi Olafisoye pounce on Gbenga Olamikan, Vanguard’s cameraman, at the Abuja High court hearing in a case of graft against him and three others, he grabbed his camera and smashed it and bragged: “you can do your worst. In fact go and call your publisher, (meaning gentle Uncle Sam, who would not hurt a fly) your publisher, you or anybody else cannot do any thing to me” Olafisoye’s madness fasted more than momentarily. For despite intervening the period, during which the court sat, Olafisoye was still seething when the court rose: “I will kill you, just be sure of it” he boasted’ (Emphasis mine). We must not make light of it, Olafisoye can kill. I understand he is a multimillionaire and in these perilous times when death has become two for half – a penny, he can afford the contract a million times over. I am directing attention to it today so that the Police, the very court of Justice Mudasiru Nosiru Oniyangi should take judicial notice of it.

The insane reaction of Olafisoye must not be construed to mean Gbenga Olamikan alone but the publishers, any staff of the newspapers covering the trial of Olafisoye and others. The truth about pathological murderers is that they are usually not bound by common sense’ The scripture, I once read, says from the abundance of the heart the mouth speaketh.’

A religionist once defined to me what good conduct is and what bad conduct is. He said anything that you are doing and you would love that people find you doing is a good deed; anything you are doing and you loathe to be caught in the act is a bad deed.”

The Respondent/claimant also claimed that the appellants/defendants repeated the libel when the 4.’ defendant/appellant in his “so ignorance is expensive”, Article in the ‘Voice of Reason column’ of the Sunday Vanguard 19th August 2001 again wrote the words:-

“I will kill you, just be sure of it.” “We wondered at the intensity of Olafisoye’s behavior and we warned, just in case he made good his threat. We could not obviously do that without talking about Olafisoye’s professional life which was the reason he was in the dock, in the first place. All we mentioned were facts not conjectures.

As a reporter, I am very aware of the sacredness of facts. I know Olafisoye would rather be photographed at his child’s wedding than be photographed in court to answer to ant-graft charges…”

The claimant/respondent based his case on the fact that the articles were read by all vanguard readers at home and abroad and on the internet and that the articles related to the claimant/respondent, who was mentioned by name and that publication takes place where a statement is read or heard and is complete at the time of publication.

The claimant/respondent asserted that the headline and words used in the Articles marked exhibits A and B (pages 125-126 of the records) portrayed him as a murderer capable of killing DW2 ( a journalist) all newspaper staff covering the Abuja-Tribunal proceedings involving him. That they portrayed the claimant as being of errant behavior not deserving respect and issued a warning to the police and other authorities to take note of his character and treat him as such.

The claimant also asserted that since the 4th Defendant/appellant did not witness the incident at the Tribunal in Abuja on 7 /6/2001, he could not comment upon it and that his write-up was hearsay. The claimant asserted that all that transpired was a case of an unsolicited photograph, which he did not desire to take and refused by waving the camera of DW2 aside. Four witnesses testified on behalf of the claimant.

The Defendants in their defence in the proceedings claimed that the articles (Exhibits B & C) being the two articles complained of which were tendered as proof of publication to all the Sunday Vanguard readers and public at large, were a fair comment and that they did not libel the claimant/respondent. Four witnesses the 4th defendant and 3 other witnesses also gave evidence on behalf of the Defendants, the 2nd and 3rd defendants who are the editor and publisher of the Sunday vanguard respectively did not however give evidence in their defence. The 4th defendant as DW1 confirmed that he wrote the Articles complained of i.e. Exh. B & C. The witness also claimed that he believed the account of the journalist who reported the incident to him and also that his comments were fair comments in the public interest. DW2, DW3 and DW4 were also all journalists covering the Tribunal on the 8/6/2001.

On the 18th day of July, 2008, the learned trial judge at pages 241-255 of the record of appeal delivered his judgment and in particular held thus at page 252 of the record amongst others and said:-

“In the instant case, the pleadings, exhibits and evidence of DW2 show clearly that the claimant has successfully proved of the existence the six ingredients. I also find that the claimant’s witness, pw1 confirmed that the Newspapers where the articles appeared were produced in court by the National Library of Nigeria; this is clear evidence that the articles were published to a third party and therefore the publication will definitely affect the image of the claimant in the society. See Awoniyi v Registered Trustees of Amo RC (1990) 6 NWLR (Pt.154) p.42.”

The court, subsequent to its findings, awarded N10million damages against the appellants/defendants in favour of the Respondent/claimant. The counter claim of the Appellants/Defendants was further refused and an order of perpetual Injunction was ordered against them from further writing and publication of offensive articles or similar words defamatory of the Respondent/claimant.

Being dissatisfied with the foregoing judgment, the appellants/defendants lodged an appeal in this court by filing before the lower court a Notice of Appeal dated and filed 24th July, 2008 and raised five grounds of appeal. See pages 256- 260 of the record of appeal. The appeal was, by the order of this court pursuant to a motion for an order for extension of time to compile record, entered on the 20th May, 2009. The appellants’ brief is dated 11th July 2009 and filed the same day.

On the 10th November, 2010 the learned appellants’ counsel Mr. A. Adedoyin adopted and relied on the appellants’ brief and urged in favour of allowing the appeal.

On behalf of the respondent, Miss N. A. chibututu also adopted and on the brief filed 2nd October, 2009 within time; counsel however sought to abandon issues 2 and 6 and defended the appeal on issues 1, 3, 4, 5 and 7. That the court should in the circumstance dismiss the appeal and affirm the judgment of the lower court.

On the 8th February, 2011 counsel were summoned to address the court on the legal effect of the failure to tie the grounds of appeal to specific issues raised especially with the respondent’s formulation of more issues than the grounds of appeal and subsequently abandoning issues 2 and 6 of the seven issues formulated therefrom the five grounds of appeal.

It is pertinent on the onslaught to state that upon the Respondent’s abandoning issues 2 and 6 on their formulation, the said two issues are hereby accordingly struck out.

From the five grounds of appeal raised by the appellants therefore three issues were distilled as follows:-

1. Whether the Respondent/claimant has successfully proved his case for defamation as to entitle him to judgment.

2. Whether the defence of fair comment raised by the Appellants/Defendants can avail them.

3. Whether the Appellants/Defendants have successfully proved their counter claim against the Respondent/claimant.”

The five issues formulated by the respondent having struck out issues 2 and 6 are also hereby re-numbered and reproduced as follows:-

“1. Whether the claimant/respondent discharged the onus of proof that he was discredited by the imputations without legal justification in the Article and whether the claimant/respondent was defamed by the appellant/defendants.

2. Whether the learned trial judge erred in law and in fact by failing to consider and evaluate the evidence adduced by the Appellants’ witnesses.

3. Whether the learned trial judge, misdirected herself by holding that the articles were published to CW1 (PW1).

4. Whether the learned trial judge misdirected herself when she held that the evidence of DW2 and exhibits “C” and “C”1 show that the comments by DW2 were hearsay without concrete evidence as to its fact and also it was partly an expression of his opinion and that the defence of fair comment could not avail the Appellant/Defendants.”

5. Whether the learned trial judge was right in awarding the claimant/respondent damages in the sum of N10 million.”

For the determination of this appeal, I shall predicate same on the three issues as formulated by the appellant. This is especially where all the issues formulated by the respondent are well encapsulated therein within those of the appellants.

Issue 1:

Whether the claimant/respondent discharged the onus of proof that he was discredited by the imputations without legal justification in the article and whether the claimant/respondent was defamed by the appellants.

On behalf of the appellants, it was argued and submitted that none of the respondent’s witnesses stated during trial that the article complained of lowered him in their estimation or exposed him to hatred, contempt or ridicule; that the evidence of the appellants’ witnesses was ignored and that pW1 (National Librarian) cannot be taken to be a third party to whom the article was published.

In further submission learned counsel argued that the onus of proof in libel cases is the same as in any civil proceedings and thus putting the claimant to the task of establishing ingredients constituting the civil wrong of libel wherein sections 135, 136 and 137 of the Evidence Act become relevant.

It is also trite law that a person’s reputation is not based on the opinion he has of himself but rather the estimation in which others hold of him.

At page 249 of the record of appeal, the learned trial judge held and said:-

“A defamatory statement is a statement which, if published of and concerning a person, is calculated to lower him in the estimation of 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. Defamation can also be seen as an imputation which may tend to’ lower the claimant in the estimation of right thinking members of the society generally, to expose him to hatred, contempt or ridicule. An imputation may be defamatory whether or not it is believed by those to whom it is published. See: Giwa-Adamu v Guardian Newspaper Ltd. (1999) 8 NWLR (pt. 616) p. 568; Sketch publishing company Ltd. vs Ajagbemokeferi (1989) 1 NWLR (Pt. 100) p.678 and Concord press (Nig.) Ltd. V Otutota (1999) 9 NWLR (pt.620) p. 578.”

“Any imputation which may tend “to lower the plaintiff in the estimation of right-thinking members of the society generally,” “to cut him off from society,” or “to expose him to hatred, contempt or ridicule” is defamatory to his reputation.”

Also at paragraph 3 page 4 of the same write up by Gatley on libel supra the law of defamation and the offence of libel are further also defined as follows:-

“A man commits the tort of defamation when he publishes to a third person words (or matter) containing an untrue imputation against the reputation of another… Broadly speaking, if the publication is made in permanent form or is broadcast or is part of a theatrical performance, the matter published is a libel…”

At paragraphs 5-6 at page 6 of the said write up the author in explaining the effect of publication said:-

“The publication of words defamatory of the plaintiff gives rise to a prima facie cause of action. The law presumes in the plaintiff’s favour that the words are false, unless and until the defendant proves the contrary. Nor need the plaintiff prove malice on the part of the defendant unless and until, the judge rules that the words were published on a privileged occasion. In libel, damages to the plaintiff are presumed and libel is actionable without proof of special damages.”

The same author at paragraph 1065 went further to emphasize that:-

“The statement of claim must, in principle, show that the words were published on a stated occasion to a named person or persons other than the plaintiff.”

In the case of Basorun v Ogunlewe (2000) 11 NWIR (pt.640) pages 223-238 at 231 Aderemi JCA (as he then was) held and said:-

“Publication of a defamatory statement is an essential element of the cause of action in libel cases……. And publication is the act of making the defamatory statement known to any person other than the plaintiff himself. Of course publication must be proved by credible evidence.”

Again and in a further decision of this court in the case of Okolie v Marinho (2005) 15 NWLR (Pt.1002) at page 335, Akaahs JCA found and said:-

“A defamatory publication is one that is calculated to lower the person in the estimation of 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. The test to be applied in determining whether or not the words complained of are defamatory in their natural and ordinary meaning is whether under the circumstances of reasonable man to whom the publication was made would likely understand it in a libelous sense. Furthermore, in defamation the published word complained of must be read as a whole.”

Furthermore and on the submission by the learned appellant’s counsel, he had rightly in my view argued that in an action for defamation and before consideration of defence, the court must first satisfy itself that the claimant has established the elements or ingredients reproduced in the case of sketch v Ajagbemokeferi (1989) 1 NWLR (Pt.100) p. 678 as laid down by the apex court for the proving of an action for libel. Counsel therefore submitted the inability of the respondent/claimant in proving the laid down ingredients required to establish the case for libel.

Responding to the appellants’ counsel, the learned respondent’s counsel innately argued that the test before the court was whether a reasonable man would conclude from the headline and words used in Exhibits B & C that the claimant/respondent was indeed capable of murder, was of errant behavior and also a fraudster. The counsel argued further that words used in the articles such as “pathological murderer” “insane reaction,” “rabid dog,” “anyone it bites stands the risk of being infected with rabies, which I understand is a life threatening disease,” “the story carried an empirical evidence of the state of mind of the victim” are certainly defamatory of the claimant and had therefore reduce his esteem before right thinking people.

At page 252 of the record, the learned trial judge in finding for the respondent applied and relied on the test in the case of Anate v Sanusi (2001) 11 NWLR (Pt. 725) p.542 where it was held that for an action for defamation to succeed, the claimant must prove the six ingredients specified thereunder, which are hitherto more or less the same as those upheld by the apex court in the case, of sketch v Ajagbemokeferi under reference supra.

It is the submission of the appellants that none of the witnesses called by the Respondent/claimant gave evidence that he read any of the publication; that in a libel case, the claimant must call a witness who should testify that he/she read the article/publication being complained of. Again reference in support was made to the case of Nsirim v Nsirim (1990) 3 NWLR (pt.138) 285 at 298 wherein it was held that proof of a libelous publication requires that the name of the person to whom delivery of the libelous document was made must be pleaded. Also that an action for libel must fail if publication of the defamatory matter is not proved. The case of Ajakaiye v Okandeji (1972) 1 SC, 92 was also in point wherein it was held in a libel case that publication of the words complained of must be positively proved. That there are no facts adduced for inference to be drawn from any of the witnesses of the Respondent/Claimant. That the publication neither defamed the Respondent/Claimant nor did it lower him in the eyes of any of the witnesses in the estimation of right thinking members of the society. That no evidence was also led to show that the publication exposed the Respondent/Claimant to hatred, ridicule or contempt or that it injured his reputation in his office, trade or profession. That the testimony of Mr. Sonny Obayagbo, to the effect that the group lost many previously negotiated contracts, as a result of the present suit, cannot be of any assistance to the Respondent in the absence of any nexus between him, Respondent and the group. In other words, that the group is not the same person as Olafisoye. Furthermore that no document was tendered in court to show that the Respondent/Claimant is either the chairman of Fidelity Board Group or any document to show the termination of the alleged contract for insurance for renewals in Nigeria. That no evidence whatsoever was also tendered or adduced before the lower court of any injury to the Respondent’s financial credit. That the only document tendered was the purported consultancy Agreement between A. B. & Co. and Fidelity Bond Group, which counsel argued is a corporate entity, and not a party to this action. Counsel therefore re-iterated that the publication is not in the circumstances defamatory of the Respondent and therefore urged this court to hold as such and upturn the decision of the trial court.

The respondent in his submission argued that with the facts having been placed before the whole world by the Appellant/Defendants who are not denying the existence of the publication, the trial court rightly held that what was in issue was the test of a reasonable man’s understanding of the publications.

At page 251 paragraph 2 of the records of appeal for instance the learned

Trial judge held and said:-

“… The use of the words “Olafisoye’s madness lasted more than momentarily”, “I will kill you, just be sure of it” “Olufisoye can kill: I understand that he is a multi-millionaire and in these perilous times when death has become two for half a penny, he can afford that contract a million times over” pathological murders” show from the mind of a reasonable man that the claimant as referred to in the publication was somebody capable of killing people without using his senses and being a super-rich man, who can get away with any crime even the most heinous of crimes.”

The holding and conclusion arrived at supra, was, the learned counsel submitted apt and applauded as being defamatory as it inputs on the respondent a capacity to commit the crime of murder which should be actionable without special damage.

It is of note to state that the meaning of the reasonable man test was applied by Adefarasin, J. in P. C. Asiodu v Dr. Abegunde and reported in Nigerian Law of libel and the press at page C 555: as:,

“The words of which the plaintiff complains would be understood by reasonable man to whom it was published in a libelous sense.”

See the case of D & L Caterers & Jackson v D’Anjon (1945) KB 210 at 364, where an action for slander was successful without proof of special damage.

The learned respondent’s counsel further submitted innately that from the words used in Exhibits B & C, they are certainly defamatory of the claimant and had reduced his esteem before right thinking people.

In the case of Giwa-Amu v Guardian Newspapers Ltd. and cited supra, the issue before the court was whether the words complained of by the appellant against the respondent as published in the Guardian Newspaper were defamatory of the appellant in their natural and ordinary meaning. Specifically, the publication was as follows:-

“Of the remaining men, the aspirant said to be worth talking about is Dr. Agbonkina. Osarenren is a new entrant. He is hardily known in the party. Giwa Amu a former Attorney General in the State and Amagada a Former Civil Servant are regarded as hardly more than of nuisance value. They appear to be out of the main stream of the party and some party supporters refer to them as rebels.”

The contention of the appellant was that by the said words in their natural and ordinary meaning, the respondents meant and were understood to mean inter alia that the appellant was not worth talking about as a gubernatorial aspirant; that the appellant was no more in politics otherwise than of nuisance value and therefore an embarrassment to his party and was not a fit and proper person to seek nomination as a governorship candidate. He further alleged that the article complained of was based on false and scandalous rumours which were aimed at destroying his chances of emerging as a successful gubernatorial aspirant while improving the chance of his rivals. The trial court at the conclusion of hearing dismissed the appellant’s claim and hence his appeal to the court of Appeal.

In resolving the appeal, the appellate court considered section 14 of the Defamation Law of Bendel State and order 2 rule 2(2) of the Court of Appeal Rules and unanimously dismissed the appeal.

It is pertinent to state that the said authority clearly lays down the factors necessitating the determination whether words are capable of conveying defamatory meaning. At page 580 of the report therefore this court relied on the test as laid down in the words of Obaseki JSC wherein he succinctly restated in the case of Dumbo v Idugboe (1983) 1 SC NLR 29 at 49 and said:-

“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 WLR 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 libelous sense.”

Related authorities on the same pronouncement are the cases of Okolo v Midwest Newspaper Corporation (1977) 1 SC 33 and Okafor v Ikeanji (1973) 3-4 SC 99.

In the case of Giwa-Amu v Guardian Newspaper Ltd. under reference, the words complained of were not held as defamatory of the appellant in the con. This in the view of this court at page 585 was because:-

“…the meaning ascribed to the words …all relate strictly to the appellants’ relation with his own political party the Social Democratic Party (S.D.P.) and his chances of securing the ticket of that party to contest the governorship election in the then Bendel State. In other words the words complained of would not tend to lower the appellant in the estimation of right thinking members of the society generally.”

The underlying reason for the publication was purely political aimed at destroying the chances of the appellant of emerging as successful gubernatorial aspirant of his party and thereby improving the chances of his rivals. The court therefore held the same words as not having any effect in lowering the appellant in the estimation of right-thinking members of the society. The test for the phrase “right-thinking man” is therefore objective in nature just as the notorious “reasonable man in the street.” While the appellants chances in that case of securing the ticket to contest was construed as slim, it had no bearing on the personality of the appellant as an honest politician and a highly respected member of the society whatsoever.

Relating the case in reference to the one under consideration, can the same conclusion be drawn of the publications in Exhibits C and C1? A reproduction of certain excerpts of the publication even at the risk of repetition read as follows:-

Olafisoye’s madness lasted more than momentarily”; “I will kill you, just be sure of it; Olafisoye can kill I understand he is a multimillionaire and in these perilous times when death has become two for half a penny, he can afford the contract a million times over,” “Pathological murders.”

The interpretation of the foregoing publication, prima facie ‘and as rightly concluded by the learned trial judge shows from the mind of a reasonable man that the claimant as referred to in the publication was somebody capable of killing people and could easily get away with any of such heinous crimes by virtue of his influential position in the society.

Plethora of authorities had it 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. See the cases of Knupffer v London Express Newspaper Ltd. (1944) AC 116 and Nevill v Fine Art and General Insurance Co. (1897) Ac 68. In the absence of trial by jury in our country, the trial judge has the onus of discharging the two functions.

The question whether the words complained of could qualify as defamatory and having passed the test as found by the lower court in the case at hand, would require the proof of the ingredients specified in the case of Anate v Sanusi (2001) 11 NWLR (Pt.725) p.542 wherein this court in an action for damages for libel restated in clear terms the elements or ingredients required of a plaintiff to prove in order to succeed in an action for libel. The ingredients are per those spelt out by the apex court in the case of Sketch v Ajagbemokeferi (1989) 1 N.S.C.C. 346. In other words and at page 363 of the report, their Lordship held that for the plaintiff to succeed, he must 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.”

The two questions that arose in that case were: – whether the words complained of in Exhibit B are defamatory; and whether the words refer to the plaintiff?

In their deduction and consideration of the matter before them, their Lordships while setting aside the judgment of this court, did however restore and upheld that of the trial court in dismissing the plaintiff’s claim. In other words their Lordships found that having regard to the evidence of the witnesses PW2, PW3 and PW4 as well as that of the plaintiff/respondent himself wherein Exhibit B referred to the title conferred on the plaintiff as against his person, the claim for defamation had therefore not been established.

In the case at hand, the learned appellants’ counsel relied on the case of Nsirim v Nsirim supra and emphasized the absence of evidence by any of the Respondent/Claimant witness that he read the publication complained of.

Four witnesses testified in proof of the claimant/respondent’s case. PW1, the librarian who tendered the exhibits (publications) emanating from proper custody said at paragraph 3 of his deposition at page 124 that the Sunday Vanguard is widely circulated in Nigeria. PW2 the claimant himself, who is the Group Chairman of Fidelity Bond Group, testified of the two copies of the publication and tendered as Exhibits C and C1 which contents have been reproduced earlier in this judgment was specifically mentioned by name and described as a pathological murderer, who can kill. At paragraphs 6, 9, 10, 18 19, 21 and 22 of his written deposition on oath he said:”

“6. That I was portrayed in the article as a murderer and an insane person and a man of irrational behaviour.

…………………………………………………………

9. That in the publication of 19/8/2001, I was again described as a murderer and accused of belligerent behavior.”

10. That both articles painted me as having run muck and threatening to kill anyone who crossed my path, especially one Gbenga Olamikan…

18. That I have been on medication since that incident.

19. That about a month thereafter my attention was drawn to the publication referred to in paragraphs 5 and g hereof by friends, associates, employer’s members of my family and other public spirited individuals.

20. That I became seriously embarrassed at the implications of the publications as people started avoiding me.

21. That the said publications have injured my professional life and brought me into public scandal, ridicule odium and contempt and are false, malicious and libelous of me.

22. That as a result of publications, I have lost various contracts with my overseas partners valued at US 2 million (Dollars) as shown in the statement of Mr. Adrian Bault.”

PW3 one Robert Ohuoba’s written statement on oath is at pages 127-128 of the record. Ad paragraph 9, 10 and 11 of his deposition he said:-

“9. That my attention was drawn to the 8/7/2001 and 19/8/2001 editions of “The Sunday Vanguard by the plaintiff sometime in September 2001 and that I was surprised about the contents of the paper.

10. That I was at all times with the plaintiff in court and at no time did he threaten to kill the camera man aforementioned, Gbenga Olamikan or any other person and he did not threaten to deal with anybody who crossed his path to my hearing.

11. That I have never seen the plaintiff threatening anybody or behaving abnormally.”

Under cross examination, the claimant testified and said that the articles complained of portrayed him as a murderer and a person of errant behavior. PW3 adopted his written statement on oath and corroborated the claimant’s account. It is pertinent to restate that the said witness PW3 who concluded his evidence at page 225 of the record was not cross examined thereon.

The claimant’s witness PW4 is one Sunny Obayagbo who works with Fidelity Bond Group as the Group Company Secretary/Legal Adviser. His written statement is also at pages 158-159. He also gave evidence at page 229 of the record with cross examination at page 230 wherein the witness said:-

“The business partners reviewed their relevance with Fidelity Bond Group. I said the contract was terminated without reason and that they did not want to be associated with Fidelity Group because of the Vanguard Newspaper.

At the time the contract was terminated it came to us as a shock. We tried to find out why it was terminated. We found out from Adrian Baulf our overseas contact that it was a result of the vanguard Newspaper which impeached on the character of the Defendant.”

In the witnesses further evidence on oath he affirmed that the terminated consultancy contract was worth US2million (Dollars). Exhibit G at page 296 of the record is relevant.

On behalf of the Defendants/Appellants one Olugbenga Olamikan a journalist testified as DWL. In his Deposition at pages 137-139 he averred relating his encounter with the respondent whom he alleged assaulted him and also destroyed his camera. Paragraph 8 of his deposition is in evidence wherein he said:-

“8. That I was ahead of the other photo-journalists to take a photograph of the claimant, and that while I was focusing the lens of my camera, the claimant suddenly pounced on me, slapped me twice, grabbed my camera, threw it on the ground, broke it and smashed it to pieces and started shouting that “You can do your worst, in fact, go and call your publisher; your publisher, you or anybody else cannot do anything to me and I will kill him and you and nothing will happen to me.”

DW2, and DW3, like DW1 are also journalists by profession and corroborated the testimonies of each other. In respect of DW4 however, his deposition of the incident was a reproduction of what he was told by DW1 Olugbenga Olamikan.

At page 232 of the record of appeal for instance the 4th Defendant/appellant as DW1 said thus under cross-examination.

“I did not witness the incident of 8/6/01…………………………..

I can reach a conclusion on a report from a credible reporter, without confirming the story………………

He said he would kill… There was no tape recording of the statement. …. I am not aware that my publisher Sam Amuka-Peru has slept in the claimants’ house.”

PW3 is legal personnel and he advised the claimant to consult his lawyer. Having arrived thus far, it is now apt at this point to bring to bear the earlier question posed as to whether in the light of the circumstances at hand and in this case, the learned trial judge was on a firm ground in holding that the Respondent/claimant has successfully proved his case for defamation and to entitle him to judgment.

With due reference to the evidence by all the claimant/respondent’s witnesses and indeed those of the defendants/appellants, the terrain for soft landing would in my view stem to lean towards a favourable conclusion to the respondent. This is not far fetched especially in the light of the evidence of the witnesses PW1, PW2 and PW3 supra and even those of the defendants/appellants wherein the question of publication of the article as pleaded is not in controversy. The reference being made to the Respondent who was clearly named cannot also be denied. On whether or not the words are defamatory, the definition of a defamatory publication would be relevant. In other words, by the use of the words against the respondent as stated in the publication wherein he is described as a murderer and to whom insanity was ascribed, would surely in the eyes of a reasonable man, to whom such publication was made, greatly subject him to derogation and contempt. The question of publication to a third party is also sacrosanct wherein PW1, the librarian, in his evidence for instance testified that the newspaper publication “The Sunday Vanguard” is widely circulated in Nigeria. In his evidence PW3 was surprised and saw it relevance to take up the injurious publication further and thus advised the claimant to consult his lawyers. The witness was not cross examined as to why he was surprised.

The witness PW4 also testified that a consultancy contract was terminated by foreign partners as a result of the Vanguard publication. It is not therefore correct as submitted by the appellants’ learned counsel at page 18 of the brief wherein he submitted that “None of the witnesses called by the Respondent/claimant gave evidence that he read any of the publication”. The appellants themselves on their brief at page 1.8 lines 2-3 conceded that PW3 Mr. Robert Ohuoba’s attention was drawn to the publication by the Respondent/Claimant sometime in September 2001 and he was surprised about the contents. In the case of Basorun v Ogunlewe (2000) 11 NWLR (Pt. 640) pages 223 at 231 Aderemi JCA (as he then was) held and said:-

“Publication of a defamatory statement is an essential element of the cause of action in libel cases and publication is the act of making the defamatory statement known to any person other than the plaintiff himself. Of course publication must be proved by credible evidence.”

The other test requiring substantiation is whether the words complained of are false or lack veracity. It is the submission of the appellants that the respondent as claimant did not establish the demand of the said ingredient or any of the others at all as specified in the case of Sketch v Ajagbenokeferi and spelt out by their Lordships of the apex court (supra). The Deposition of Olugbenga Olamikan as 1st Defendants’ witness is at pages 137-139 of the record. The 4th Defendants witness, Alhaji Kola Animasaun’s deposition is also at pages 144-147 of the same record. The said witness account of the incident in question per his deposition at paragraph 9 was a reported story told him by DW1. It is also pertinent to restate therefore that the evidence of the witness DW4 is hearsay having not testified to what he personally saw himself. By the witness choosing to believe his reporter, it is not enough to hold that he had justifiable grounds for the publication. There is also the ample confirmation that the appellants are not denying that they published the articles. For the construction of the words according to fair and natural meaning to be given them by reasonable persons of ordinary intelligence, the case of Giwa-Amu v Guardian Newspaper Ltd. supra is again in point. Also in the case of Dina v New Nigerian Newspapers (1986) 2 NWLR (Pt.22) 353 at 363, this court held thus and said:- “It is the law that where words complained of are defamatory in their natural meaning the plaintiff need prove nothing more than their publication. The onus will then lie on the defendant to prove the circumstances in which the words were used.”

The issue before the lower court was to determine whether the words used by the appellants were defamatory and it held in the affirmative having applied the test in the case of Anate v Sanusi (supra) wherein the ingredients laid down by their Lordships of the apex court in Sketch v Ajagbemokeferi (supra) were applied. In the circumstance of the case and by the very nature of the words used in naming and describing the respondent as a “rabid dog and murderer” in itself would certainly and as rightly concluded by the learned trial judge attract the emotions in right thinking persons in the society. In the circumstance and as rightly submitted by the learned respondent’s counsel, the said issue in question is resolved against the appellants.

The law is firmly established that liability for a publication falls on all persons who participated or authorized it. Consequently and where a libel is published in a Newspaper therefore, everyone who has taken part in publishing it or in procuring its publication or has submitted material published in it is prima facie liable. It follows therefore that the editor, printer, publisher of the Newspaper are prima facie jointly and severally liable for any libel which appears in the publication unless they can however show that they did not know that the publication contained defamatory material or was unlikely to contain such material. See for instance the pronouncement by Bridge L.J. in Goldsmith vs Sperrings (1977)1 W.1.R.478 at 505 where it was held that:-

“… Any disseminator of defamatory matter is liable to the party defamed, subject to the defence of innocent dissemination. To establish this it is for him to show that he did not in fact know that the publication contained defamatory matter and that h e had no reason to believe that it was likely to contain defamatory matter. Gatley para. 241.”

Having arrived at the conclusion that the publications are defamatory of the respondent in nature, the next issue is whether the defence of fair comment as sought to rely upon by the Defendants/Appellants can avail them in the circumstances. It is pertinent to state that the defence of fair comment or any other could only and appropriately arise after the court must have decided that the words complained of are defamatory in nature and of the plaintiff. In other words, there cannot be fair comment in the absence of defamatory words.

At paragraph 11 of their Amended Statement of Defence and counter-claim the defendants/appellants averred and said:-

“The defendants aver that the purported write up of the incident of the 7th of July 2001 is privileged in that it contains nothing but fair comments on the unexpected reaction of the plaintiff at the Abuja High Court premises of the Anti Corruption Tribunal.”

At page 253 of the record of appeal, the learned trial judge held and said:-

“In the instant case, the evidence of DW2 and Exhibits C and C1 show that the comments by the DW2 were hearsay without concrete evidence as to its fact and also it was partly an expression of his opinion. I am of the view that the expressions were over the limits and were a gross exaggeration of the event, and in the light of those facts, I therefore hold that the defence of fair comments cannot avail the Defendants.”

The appellants while disagreeing with the reasoning’s of the lower court, submitted that a defendant who pleads fair comment must satisfy three requirements as set out in the case of Concord Press (Nig.) Ltd. v Olutola (1999) 9 NWLR (pt. 620) page 578 at 596 that:-

(a) The matter must be of public interest;

(b) The comment must be founded or based on true facts; and

That having regard to the evidence of DW2, DW3 and DW4, the facts upon which the comments were based have been proved to be of public interest and are based on facts which are fair comments. Copious reliance was made to the case of Bakare v Ibrahim (1973) 6 sc 205 whereby the learned appellants, counsel submitted the failure of the Respondent/claimant to rebut the inference of malice, which he argued is fatal to the respondent’s case. Counsel urged that the decision of the trial judge be set aside on this issue and rather hold that the defence of fair comment should be sustained.

In response to the submission, the learned respondent’s counsel drew the court’s attention at page 232 of the record and specifically to the evidence of DW1. Reference was also made to a number of authorities in restating the position of the law on the phrase, fair comments. That the account of DW1 who did not witness the incident was rightly held by the lower court as hearsay evidence. That comments based on matters of opinion only which may or may not be true affords no defence. That the comments of DW1 did not border on life or security of lives of fellow Nigerians in an incident he did not witness and which he concedes is hearsay. That the article of the 4th Defendant/Appellant was based on untrue facts and that he allowed his imagination to carry him away. That the claimant was neither convicted of a crime to warrant a conclusion that he could commit murder nor had he ever been sent for psychiatric evaluation. That the 4th defendant in his publication was arrogant in expressing his opinion that the respondent could commit murder or that he was acting like an insane person or a rabid dog. That by the use of the words “Pathological murder” to describe the claimant was surely journalistic flourish.

For the determination of this issue, it is pertinent to state that the law is clear on the defence of fair comment whereby for it to sustain, it must be squarely proved. A plethora of authorities avails and are sacrosanct and clear-cut. For instance in the case of Basorun v Ogunlewe (2000) 1 NWLR (pt. 640) 221 at 235-236, Aderemi JCA (as he then was) said:-

“When a defendant has as his defence that the comment is a fair one, he is saying no more than that the story was based upon facts which were in existence when the comment was made. This is so because before a comment can be said to be fair, the truth of the facts upon which it is predicated must 1st be established… for the law does not permit a person to invest untrue facts about a man and then comment upon them. In other words, the defence of fair comment will avail the defendants/appellants in the present action if they can show that they had only in good faith expressed their opinion based on facts truly stated on a matter of public interest…”

On the authority of the foregoing it is apparent that for the defence of fair comment to succeed, the defendant has the onus to show that the publication is in fact a fair comment upon some matter of public interest. It must also be uncompromised that the facts on which the comments are based must be true.

It is on record that the 4th defendant did not witness the incident. His account at page 232 of the record under cross-examination having been reproduced in the judgment earlier is therefore hearsay. The reproduction even in the face of repetition said thus:-

“l did not witness the incident of 8/7/2001. I can only believe what my reporter says and nobody e1se… I can reach a conclusion on a report from a credible reporter, without confirming story.”

On behalf of the appellants their learned counsel submitted that comment of DW1 bordered on the life or security of lives of fellow Nigerians and therefore it is a matter of public interest.

It is not on record that the claimant/respondent was ever convicted of a crime to warrant a conclusion that he could commit murder. No evidence also avail that he had ever been sent for psychiatric evaluation. At least the appellants did not produce any such indictment to beef up their defence. In the circumstance, I hold a strong view that the appellants’ claim which is bordered on the life or security of lives of fellow Nigerians cannot as wrongly portrayed be a matter of public interest. In other words where the facts for the publication lack foundation, there can be no justification in claiming to serve a non existent interest and thereby endangering the interest of an individual without any just cause. The defendants by pleading justification is saying in a sense that all the words used in the publication are absolutely true and accurate. This would not only cover the bare statement of fact simpliciter but also the truth which would be imputed into what the words are meant to connote. The facts on which the comment is based must be true. The authority in the case of Dina v African Newspapers (Nig.) Ltd. supra is relevant in the circumstance.

Also in the case of Jegede v Daily Times of Nigeria Ltd. (1980) FNR 224 at 233. It was held that:-

“To succeed in the defence of fair comment the defendant must show that the publication was in fact a comment, more than that that it is a fair comment and moreover that it is upon some matter of public interest.”

Further more and in the case of London Artists Limited v Littler Grade Organization Limited 2 Weekly Law Reports (1969) p. 409 it was held amongst that:-

“… In his allegation of a plot he (defendant) had made a defamatory imputation without any basis of fact to support it, and accordingly the defence of fair comment failed.”

The burden is laid on the defendant who must prove that the facts on which the comment is founded are true and that the comment on these facts is fair. The corollary therefore should hold that where the fact upon which the comment purports to be made did not exist, then the defence of fair comment must as a consequence fail.

I agree with the submission by the learned respondent’s counsel that the comments used by DW1 are not dispassionate but jaundiced and prejudicial of the respondent. The 4th defendant as rightly submitted by the respondent’s counsel was not commenting on anything but was rather stating categorically his conclusions on an event he neither witnessed nor sought for corroboration of the information told him.

In the case of Enahoro v Associated Newspapers (1959-1960) WNLR 219, it was held that a newspaper cannot avail itself of the defence of fair comment if the publication by the newspaper is false and the comment unfair. The comments to be fair must be based on facts accurately stated.

Deducing from the findings supra it is my firm view, and I hold that the defendants/appellants have fallen short of proving any or at all of the three requirements stated in the case of Concord Press (Nig.) Ltd. v Olulola (supra). In other words that the matter is of public interest; that the comment is founded or based on true facts, and that the comment on the fact is fair. The said issue in the result is also therefore resolved against the appellants.

The 3rd issue for determination poses a question whether the defendants/appellants succeeded in their counter claim?

At page 254 of the record, the learned trial judge held and said:-

“The defendants in their evidence failed to place before the court, any evidence which shows that the camera was indeed smashed by the claimant except the corroboration of the DW3 and DW4. There was no production of the remnant of the neither smashed camera nor must a photograph, he who asserts prove.”

On behalf of the appellants, their learned counsel submitted the erroneous findings by the lower court and drew the attention to the evidence contained in the witness statements of DW2, DW3 and DW4. That all the witnesses are corroborative of the assault meted on DW2 whose camera was also alleged to have been smashed by the claimant/respondent. That the destruction was also corroborated by the claimants/respondent’s witness PW3, Mr. Robert Ohuoba. That having failed to deny the allegation, this court should hold that the respondent/claimant is responsible for the destruction of the camera. This, learned counsel argued, should hold, notwithstanding the failure to produce the camera or its photograph in court. Reliance was made to the case of Nwabuoku v Ottih (1961) All NLR, 507 wherein a claimant will be entitled to judgment in terms of the writ in absence of the defence adducing evidence denying the claim. That the court should therefore carefully reconsider the judgment of the lower court and the reasoning behind it, and hence allow the appeal.

The learned respondent’s counsel at the hearing of the appeal applied to abandon their issues two and six which same and the submission thereon are accordingly struck out. The said issue six is in respect of the counter claim.

I wish to state however that despite the erroneous abandonment by the respondent of issue six, the onus still lies on the appellant to substantiate and prove his argument on counter claim and which is open to this court to consider same on the merit based on the record before it.

At paragraphs 13, 14 and 15 of the witness deposition, at page 122 of the record, the claimant has this to say:-

“13. That as I was about to leave the court premises someone I could not see thrust a camera in my eyes.

14. That I had to wave aside the camera to avoid injury to my eyes or destruction of my spectacles.

15. That I was so shocked at the incident that I lost balance and had to be helped to avoid crashing to the ground.”

At paragraph 8 of the witness deposition of Olugbenga Olamikan as DWL at page 138 of the record, he had this to say:-

8. That I was ahead of the other photo-journalists to take a photograph of the claimant, and that while I was focusing the lens of my camera, the claimant, threw it on the ground, broke it and smashed it to pieces…”

The same deposition was repeated by Rotimi Fadeyi, Lemmy Ughegbe and Alhaji Kola Animasaun in their defence witnesses statements on oath. It has been earlier said however that the deposition by the 4th defendant was hearsay evidence as rightly submitted by the learned respondent’s counsel.

There is no evidence produced and shown on record to substantiate the act of the destruction of the camera in question. The fact that the claimant confirmed that someone tried to take his photograph cannot be a proof of either the existence of the camera, its costs or destruction thereof. The evidence of waving aside a camera by the claimant cannot also be synonymous with smashing a camera. It is also expected that with the allegation of the destruction, there ought to have been the production of its residue or the receipt of its purchase as proof thereof. The deduction arrived at by the learned trial judge at page 254 reproduced supra, cannot in the circumstance be faulted. The provision of section 135(1) of the Evidence Act is very clear on burden of proof wherein it says:

“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist?”

Also in the case of Akinfosile v Ijose (1960) 5 FSC 192 their Lordships of the Supreme Court at page 198 held and said:-

“The person who makes allegations in a pleading is, by the ordinary rules of pleading, bound to produce evidence to substantiate them as part of his case, and it is not sufficient for him to rely upon the emergence of evidence from the opposite party for the purpose of proving allegations in his own pleading.”

The said pronouncement was adopted in the case of Omugbo v Nwekeson (1993) 3 NWLR (Pt.283) p.533. Achike JCA (as he then was) also in Ogundipe v Attorney-General of Kwara State (1993) 8 NWLR (Pt.313) p.558 and at page 568 had thus to say:-

“But we must hasten to add that it will be wrong for a plaintiff to assume that he will be entitled to judgment as a matter of course, because the defendant had failed to tender any evidence… The trial court is still under a duty to evaluate the evidence adduced by the plaintiff and must be satisfied that the evidence is credible and sufficient to sustain the claim. This is because the legal burden on the plaintiff or any person, who asserts, is to prove his civil claim on balance of probabilities, and is in no way mitigated by the opposing side’s election to blow a muted trumpet.”

The underlying purpose of instilling the burden is apt as it would ensure that a party seeking legal right must be well equipped and certain of the claim for purpose of strategizing the means of achieving the rights.

With reference to the record of appeal at hand, as rightly arrived at by the learned trial judge, no evidence was adduced by the defendants/appellants to confirm the destruction of the camera. The submission and reliance by the learned appellants’ counsel on the authority in the case of Nwabuoku V. Ottih supra is not in the circumstance helpful to their case. The onus to prove was on the appellants who alleged the damage to the camera. The record did not reveal such evidence placed before the lower court and consequent upon which the claim for damaged camera fails.

On the claim of the sum of N50, 000, 000.00 (Fifty million Naira being general damages suffered by the 1st defendant as a result of the absence from duties of the said, Mr. Olugbenga Olamikan, an employee of the defendant, same is also a matter of evidence. It is pertinent to restate that no evidence of the said absence had been placed before the trial court. There was no form of hospital bills and report from a qualified medical doctor placed before the lower court in that respect. The court is not a Father Christmas who would award reliefs which have not been proved. The counter claim as rightly concluded by the learned trial judge was not proved and therefore failed.

In the result of the claim at the lower court while the appellants counter claim rightly failed in its entirety, the respondent as the claimant had succeeded on his claim for libel/defamation against the appellants.

The last point for consideration is whether the learned trial judge was right in awarding the claimant/respondent damages in the sum of N10 million. Plethora of judicial authorities would be relevant in this case. For instance in the case of Atoyebi v Odudu (1990) 6 NWLR (Pt.157) 384 it was held that:-

“The law is firmly established that every libel is itself a wrong to which general damages are imputed. It follows that damages need not be proved in an action for libel.”

Equally and at page 236 of the case of Basorun v Ogunlewe (supra) Aderemi JCA (as he then was) said:-

“…the law is firmly established that every libel is of itself a wrong in regard to which general damages are imputed. It follows that damages need not be proved in an action for libel. See Ejabulor v Osha (1990) 5 NWLR (Pt.148). If a plaintiff proves that a libel has been published of him without legal justification…, his cause of action is complete and he does not have to prove that he has suffered any resulting actual damage or injury to his reputation for such damage is presumed by the law.”The dictum of Lord sumner is Jones v Jones (1915) 2 A. C. 481 at 500 was extensively quoted by his Lordship Aderemi JCA wherein he said:-

“Defamation; spoken or written, is always actionable if damage is proved, and even if it is not, the law will infer the damage needed to found the action:

(1) When the words are written or printed;

(2) When the words spoken impute a crime punishable with imprisonment;

(3) When they impute certain diseases naturally excluding the patient from social intercourse;

(4) When words are spoken of a person following a calling, end spoken of him in that calling, which impute to him unfitness for or misconduct in that calling.”

The apex court in the case of C. R. S. N. Corp. v Oni (1995) 1 NWLR (Pt.371) 270 quoted with approval the foregoing dictum of Lord Sumner.

It is also pertinent to state that the purpose of awarding damages in a libel case to a successful plaintiff is to vindicate his character or reputation which was sought to be damaged by the unjustified publication. It is also trite that once publication is proved to be libelous, the law presumes damage.

In the circumstance at hand and having regard to this situation, the quantum of damages to my mind should be reasonable. It is in no doubt that the crucial issue of interest to the respondent is the vindication of his character which has been secured by the court. Two other factors which are also worthy of consideration are: the extent of the publication of the newspaper which the Librarian as PW1 testified in his statement on oath at paragraph 3 and said:-

“3. That I am familiar with “The Sunday Vanguard,” which is widely circulated in Nigeria.”

The witness was not cross examined on the extent of publication and circulation. I take it therefore that the newspaper enjoyed wide spread or extensive measure of circulation.

The other aspect worthy of note is the deposition by the claimant/respondent at paragraph 22 page 122 of the record wherein various contracts with his overseas partners valued at US 2million (Dollar) were lost as a result of the publication.

PW4 Sunny Obayagbo in his evidence also emphatically testified under cross examination at page 230 of the record that their company lost a business deal as a result of the publication. That the respondent is the Chairman of the company and they found out from one Mr. Adrian Baulf the Company’s Overseas Contact. A consultancy agreement Exhibit G is in evidence. The foregoing reasons would in my view certainly necessitate and attract an award of substantial damages.

I am also mindful of the fact that this action was first instituted vide a writ of summons dated 30th August 2002 and hence the value of the Naira has over the years greatly been depreciated. Having considered all the relevant surrounding factors, I am of the considered opinion that the said sum of N10 million awarded is not exorbitant but just and appropriate.

The appeal in the circumstance is grossly lacking in merit and is hereby dismissed. The judgment of the Lagos High Court delivered and contained in the decision of Hon. Justice Atilade (Mrs.) delivered on the 18th July, 2008 is hereby upheld and affirmed. With costs following events, I shall award the sum of N50, 000. = in favour of the Respondent.

HUSSEIN MUKHTAR, J.C.A.: I have been privileged to read in advance the judgment of my learned and noble brother Ogunbiyi, JCA. I am in complete agreement with the admirable reasons and the obvious conclusion that there is no merit at all in this appeal.

The law presumes damage or injury to the respondent’s reputation by the articles published by the appellants in the “voice of reasons” column in the 8th July 2001 and 19th August 2001 editions of the Sunday Vanguard, which are clearly libelous of the respondent. In other words, the respondent has no responsibility proving further that he has actually suffered damage or injury to his reputation resulting from those wild publications. See Basorun v Ogunlewe (2000) 1 NWLR (pt 640) 221. For the foregoing and the more detailed reasons in the lead judgment, this appeal is glaringly bereft of merit and deserves an outright dismissal. It is accordingly dismissed by me.

I subscribe to the consequential orders made in the judgment inclusive of the one as to costs.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: The Appellant who had been found liable for libel and awarded general damages of N10, 000, 000 (Ten Million Naira) against him took up this appeal and contends in the Main in the Brief of argument filed on 11th July 2009 that the publication complained of was a privileged communication and a fair comment relating to the event of a criminal trial involving the Respondent in a court of law.

The Appellant as Defendant had by his Amended Statement of Defence and Counter Claim averred as follows:

“The Defendants aver that the purported write up of the incident of the 7th July 2001 is privileged in that it contains nothing but fair comments on the unexpected reaction of the Plaintiff at the Abuja High Court premises of the Anti corruption Tribunal”

By the averment reproduced above, the defences of fair comment and privilege are set up.

The publication of a libelous publication is prima facie admitted in the circumstances.

For the defence of fair comment to succeed in an action of defamation, a Defendant is obliged to prove the following ingredients:-

(1) The facts on which he based his comment must be true and existing facts.

(2) That the matter was one of public interest, and

(3) The comment was a fair inference from the facts.

It is for the court to decide what is a fact and a comment and also it is for the court to decide whether the matter commented on is one of public interest. See TURNER V METRO GODWYIN (1950) 1 ALL E.R. 449; SOUTH HEATON COAL CO. V NORTH EASTERN NEWS ASSON. (1954) 1 Q.B. 133.

The facts must be correctly stated or the premise upon which the comment is based must be correctly stated and must be the whole truth.

In the CASE Of AFRICAN NEWSPAPERS OF NIGERIA LTD. V. COKER (1973) 5SC 257 AT 274, Udo Udoma (JSC) said:

“In the defence of fair comment the whole of the facts must be correct, and fairly stated, or the premise upon which the comment is based must be the whole truth. Anything short of these would destroy the defence of fair comment”

It therefore means that the facts stated must be existing facts.

In BASSEY V. MIDWEST NEWSPAPERS CORPORATION NEW NIGERIA, 14TH MARCH 1978, P.10 AT PG. 11 it was held that the Defendant could not have recourse to Exhibit as facts on which the alleged comments were based since he had stated in cross-examination as follows:-

“My paper did not know of Exhibit H when we wrote the Editorial in Exhibit “D”. We did not write Exhibit D in consequence of Exhibit H”

The 4th Defendant did not witness the incident. His evidence as narrated at page 232 of the Record under cross-examination is hearsay and does not prove any facts to his knowledge, let alone the truth thereof.

He stated thus:-

“I did not witness the incident of 8/7/2001. I can only believe what my reporter says and nobody else ………I can reach a conclusion on a report from a credible reporter, without confirming the story”

Could the 4th Defendant justify the facts in the publication in the face of the answers reproduced above, coming from him? I think he cannot claim that he had the fact for which he could vouch by direct evidence. Comments not based on true facts cannot be fair comments in law. See AFRICAN NEWSPAPERS NIGERIA LTD, V, and COKER (supra).

Secondly, was the publication, a matter of public interest? The plaintiff/Respondent in this appeal was not shown to be a public officer, whose conduct was being inquired into. It was also not shown that the proceedings in the court was being inquired into or commented thereon; and the publication related to the said trial. What the record of appeal shows is the reaction of the 1st Respondent who was arraigned for trial in the court when the 1st Appellant tried to take his photograph and then his resultant reaction.

The publication did not relate to the substance of the trial but railed off to imputation of murder and the expression of belief in the ability and capacity of the Respondent to commit murder (kill).

The reasons for the imputed ability, capacity, capability and possibility to kill not only the Respondent but other journalists that may be involved in the coverage of the trial of the Plaintiff/Respondent are hinged on the Respondent’s alleged stupendous wealth, insanity or maniac state of mind. I dare say that these reasons illogically linked to the conclusion arrived at in the accusation smacks of nothing other than a vendetta appurtenant the shoving of the Appellant’s camera as reaction by the Respondent/cross Appellant.

The basis of the assertions were not led; neither was it shown how those inferences were made and how they could commensurately be a legitimate and legal reaction to an action in disapproval of attempted photographing of the Respondent.

PW2 at the trial court had testified that the Plaintiff now Respondent had spontaneously waived off the camera that the DW2 (now Appellant) had almost thrust at his eyes while trying to snap him. He is, for his reaction, tagged an imminent serial killer. This is an imputation of criminality, which is actionable Per se.

There was no evidence of what public interest it was to serve in referring to the Respondent as a potential serial murderer with a propensity to kill as many people as he wished because he was rabidly viscous and a multi

Millionaire that could buy off people, commit crime and cover his trail? What public interest was it for such damning allegation that portrayed a person as a “Lucifer and Dragon” to be published in a Newspaper of a wide National circulation for that matter?

If one or I may ask – Did all the possible readers have an obligation or duty to receive such information? Were the Appellants under any public or social obligation to communicate the facts said to be comments?

Where there is no such social, moral or legal obligation or duty to make the communication and where there is also no corresponding duty or obligation for the receiver of the information to be so communicated, the defence of privilege cannot avail any publisher or anybody for that matter. A defence raised in that instance must fail, therefore.

In AKOMOLAFE V. GUARDIAN PRESS 42 NSCQR 135 AT 162, Onnoghen, JSC in his lead judgment stated at page 163 paragraphs E.F. thus

“It is settled law that a privilege occasion, is in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social or moral to make it to the person to whom it was made, and the person to whom it was made has a corresponding interest or duty to receive it. See ADAM V WARD (1917) AC 309 AT 334′

I do not, from the facts of this case as contained in the record of appeal find any evidence supporting the defence of privilege at all, Malice has been shown, thus robbing the publication of any element of good faith and highlighting the publication as one not clothed with the regalia of fair comment in the public interest. The lifting of the veil discloses malice. The finding of liability for libel and an award of damages was, in the circumstance justified.

On the counter claim, I do not find any evidence on the record of Appeal upon which the Cross Appellant could have grounded his claim for damages. He that asserts must prove. See section 137 of the Evidence Act 1990, LFN 2004; NSIRIM V. NSIRIM (2002) 94 LRCN 177, TAIWO V. DOSUNMU & ANR. (1965) ALL NLR 417 KODILINYE V. MBANEFO 2 WACA 336 AND U.B.A. V. B.T.L. IND, LTD (2007) 148 LRCN 1189.

I agree that the counter claim had no merit and was rightly dismissed by the lower court. I affirm the dismissal as made.

The complaint of the Appellant on the quantum of damages awarded was not justified as an Appellate court would not ordinarily interfere with the award of damages unless it can be shown that the award was based on wrong principle of law or that the award was clearly an erroneous estimate of the damages suffered. See USONG V. H. INTERNATIONAL LTD. (2009) 175 LRCN 81. In USONG V. H. INTERNATIONAL LTD, (2009) 175 LRCN 81 supra, Ogebe (JSC) in his lead Judgment had this to say in respect of the award of damages of N1 Million awarded by the trial court that was reduced by the court of Appeal.

“However I am of the view that the amount of one Million Naira awarded by the trial court for the loss of one eye was modest considering the fact that the Appellant was claiming Five Million Naira for general damages. Can that amount be regarded as too high in the circumstances of this case for the court of Appeal to reduce it? I think not. The court of Appeal should have considered whether or not the amount of damages awarded was so extremely high as to make an entirely erroneous estimate of the damages to which the Appellant was entitled. See MAJOR SHEHU IBRAHIM V. DR. JUNAID S. MOHAMMED (2003) 6 NWLR (PT. 817) 615 AT 647. In not doing so the Court of Appeal was not justified in slashing the quanium of damages by fifty percent for a serious injury like the loss of an eye.

Accordingly I see merit in this appeal and allow it. I set aside the Judgment of the court of Appeal as it relates to the quantum of general damages and restore the one Million Naira general damages awarded by the trial court.”

The Appellant herein did not show how the N10, Million Naira awarded as damages was based on an erroneous estimate or on wrong principle of law. See also Mohammed JSC’s dictum at page 95 of the Report. The Cross Appellant was, in the aforementioned case’ therefore, said to be right in complaining against the quantum of damages awarded to him by the Court of Appeal by down ward slashing.

The Appellant was wrong on his part in saying that it was rightly slashed, as there was no legal basis for so doing.

The case on appeal now is, as in the Usong’s case (supra) where Ogbuagu J.S.C. stated at page 97 paragraph 2 of the report thus –

“If the Appellant had asked this court for an/the enhancement of the said award, it may have given serious and adequate consideration to it in view of the severity and permanence of the said injury to a precious eye more so in view of the rising cost of inflation in the country.”

There is however no appeal by the Respondent against the quantum of damages awarded. Had there been, I would have invoked the above view and reviewed damages upwards accordingly. The adage is that, a man is his reputation. I do not see how the damaged reputation of the Respondent has been over estimated in the assessment of damages awarded or how wrong principles of law have been followed or applied in vindicating or assuaging the damage done to the reputation by the publication in this matter. It is for the foregoing reasons and the more detailed reasoning contained in the lead Judgment of My Lord C.B. Ogunbiyi JCA, that I adopt the conclusion arrived thereat that this Appeal be dismissed as utterly unmeritorious. I too dismiss this appeal and adopt all the consequential orders made therein the lead Judgment as relating to the affirmation of the order on N10, Million as general damages and that as to costs.

Appearances

1. Adebiyi O. Olafisoye

2. Mr. R. D. AribisallaFor Appellant

AND

Mr. N.A. ChibututuFor Respondent