WESTERN PUBLISHING COMPANY LIMITED & ANOR v. DR. KAYODE FAYEMI (2015)

WESTERN PUBLISHING COMPANY LIMITED & ANOR v. DR. KAYODE FAYEMI

(2015)LCN/7885(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 3rd day of June, 2015

CA/EK/18/2014

RATIO

RELIEFS; WHETHER RELIEFS ARE FACTS THAT A WITNESS CAN ORDINARILY TESTIFY TO

Reliefs, which is the subject of his complaint here, are not facts that a witness can ordinarily testify to. Facts belong to the litigant, who supplies them to counsel, and it is upon receipt thereof that counsel uses his legal knowledge to draft the appropriate reliefs due the litigant from those facts. It is the facts of the case so supplied by litigant to counsel that witnesses, be they parties to the case or otherwise, testify to and is deemed to have abandoned if they fail to so do. That much is what the Supreme Court, per Uwaifo J.S.C., said in Jekpe v. Alokwe (2001) F.W.L.R. (PT 1013) 1027-1028 H-D as follows: “The point to make here is that the principle of law that evidence must be led to support averments in a statement of claim does not require a plaintiff to recite viva voce by heart in his testimony before the court each item of the reliefs he seeks in his statement of claim. A statement of claim may contain a variety of reliefs. The preparation of reliefs sought by a plaintiff is a function of the legal practitioner who settles the statement of claim from the brief he receives from his client. A plaintiff is not expected to know the niceties of the reliefs derivable from the totality of the facts he confides to his solicitor. Mr. Okeaya-Inneh, SAN, was quite right when he said the plaintiffs were claiming the reliefs stated in the amended statement of claim. Indeed, it is counsel who would say so in his submission. That is not for the plaintiff or any of his witnesses. It was, therefore, surprising that the learned trial Judge thought that if a plaintiff did not in his oral evidence enumerate all the reliefs he sought, he had not led evidence to support his claim and would, therefore, lose his action. At that stage, the learned trial judge did not, obviously, have in mind the evidence in support of the merit of the case. It was a mere irritating faux pas committed by him. The itemization of the reliefs sought does not require, if I may repeat, oral evidence for the purpose of applying the principle in Mogaji vs. Odofin (1978) NSSC (vol. 11) 275 at 277.” The apex court reiterated the above point in Shittu v. Fasawe (2005) ALL FWLR (PT 278) 1017, with Musdapher J.S.C., as he then was, stating first the argument thus: “It is also argued that the respondent having failed to give evidence, and there was no evidence whatsoever on the reliefs claimed by him, the relief must be deemed to have been abandoned and the courts ought not to have granted them.” per. BOLOUKUROMO MOSES UGO, J.C.A.

PRACTICE AND PROCEDURE: WHETHER A PLAINTIFF OR DEFENDANT CAN PROVE HIS CASE WITHOUT PRESENTING HIMSELF OR TESTIFYING BEFORE THE COURT

The first point that must be made here is that there is no rule of law or practice which requires a plaintiff in a civil suit to be physically present in court to testify if he can prove his case. Indeed, it ought to be mentioned that there is also no such rule which compels a defendant to appear before the court and to testify before he may successfully defend an action against him. See British & French Bank Ltd v. Salal-El-Assad (1967) NMLR 40; Kehinde v. Ogunbunmi & Ors (1967) 1 ALL NLR 366 or (1968) NMLR 37. Accordingly, a plaintiff or defendant can prove his case without presenting himself or testifying before the court. Indeed, judgment in an appropriate case, may be entered in a suit with or without the presence of the parties so long as they are duly represented.” per. BOLOUKUROMO MOSES UGO, J.C.A.

TORT: TORT OF DEFAMATION; WHETHER ONES GENERAL CHARACTER OR REPUTATION MUST BE GOOD BEFORE ONE MAY SUCCESSFULLY MAINTAIN AN ACTION FOR DEFAMATION

In any event, it has been said by the Supreme Court that “it is not the law that one’s general character or reputation must transparently be stainless, unimpeachable and without blemish whatever before one may successfully maintain an action for defamation” per Iguh J.S.C. in Cross River State Newspaper Corp. v. Oni & 6 Others (1995) 1 NWLR (PT 371) 270 at p.292. In fact if there is any duty to prove reputation in a libel case it is ordinarily on the defendant to do so by first pleading and leading evidence of the bad reputation of the claimant to show that he lacks the relevant reputation and so is not entitled to damages. A defendant can also put the claimant’s reputation in issue with a view to mitigating damages. It is only when the defendant takes that risky step, the failure of which will further aggravate damages (and which step the appellants here started by their pleading but failed to follow through with evidence), that the claimant may decide to lead evidence of his good character or reputation. per. BOLOUKUROMO MOSES UGO, J.C.A.

DAMAGES: DAMAGES IN CASES OF LIBEL OR SLANDER; WHETHER IT IS NECESSARY FOR THE PLAINTIFF TO ALLEGE IN HIS STATEMENT OF CLAIM THAT HE HAS SUFFERED ACTUAL LOSS OR DAMAGE IN ACTIONS OF LIBEL AND OF SLANDER FOR WORDS WHICH ARE ACTIONABLE PER SE

In actions of libel and of slander for words which are actionable per se, it is not necessary for the plaintiff to allege in his statement of claim that he has suffered actual loss or damage. However, if in such actions he wishes to recover special damage, he must allege and prove it. If he fails to prove such damage, he still has the right to recover general damages. This point is also echoed in Gatley on Libel and Slander, 18th edition, at Para. 34.50 where the learned authors, quoting Bowen L.J in Ratcliffe v. Evans (1982) 2 Q.B. 524 @ 528 and Lord Goddard L.J in Scottish Co-operative v. Odhams Press Ltd (1940) 1 K.B. 440 @ 461, said thus: Damage presumed: in cases of libel or slander actionable per se, the claimant need not prove actual damage, for: ‘The law presumes that some damage will flow in the ordinary course of things from the mere invasion of his absolute right to reputation.’ Per Bowen L.J. ‘There is no obligation on the plaintiffs to show that they have suffered damage ……. In every case (a plaintiff) is entitled to say that there has been a serious libel upon him, that the law assumes he must have suffered damage, and that he is entitled to substantial damages.” Per Lord Goddard L.J. Emphasis mine. McGregor on Damages, 18th edition, at Para. 45.007 also confirms it thus: Certain damage may be inferred or presumed: this is particularly so with non-pecuniary losses. Thus by showing serious personal injury to the claimant, it may be inferred that pain and suffering resulted. More technically, damage is sometimes said to be ‘presumed’, particularly in cases involving injury to reputation. In defamation the court is entitled to award substantial damages although proof of damage is not produced. Emphasis mine. And after enumerating several cases where this was done, the learned authors stated as follows in Para. 45.008. In all these varied cases such inferences of damage may be regarded as legal presumptions operating in the claimant’s favour, to some extent obviating the necessity of production of evidence of damage by him. Emphasis mine. This state of the law has the imprimatur of the Supreme Court of Nigeria too. In fact in Ejabulor v Osha (1990) 5 NWLR (PT 148) 1 at p.15 (para H) the apex court, in dismissing similar arguments that proof of actual damage to reputation is a sine qua non to success in a libel action, said: “….questions relating to proof of damages are totally alien to an action for libel”. The apex court reaffirmed this settled principle of law in Oduwole v. David West (2010) ALL FWLR (PT 532) 1634 at pages 1657-1658 (and also in Guardian Newspapers Ltd & Anor v. Ajeh (2011) 10 NWLR (PT 1256) 574; (2011) ALL FWLR (PT 584) 1 @ p. 27) saying, per Fabiyi J.S.C., that: “It must be reiterated here that every libel is a wrong in regard to which the law imputes general damages. If a plaintiff proves that a libel has been published of him without legal justification, his cause of action is complete. He needs not prove that he has suffered any resulting actual damage or injury to his reputation for such damage is presumed: English and Scottish Co-operation Properties v. Odhams (1916) 1 KB 440 @ 445; Jones v. Jones (1916) 2 AC 481 @ 500.” Emphasis mine. In between Ejabulor v. Oshaof 1990, Oduwole v. David-West of 2010 and Guardian Newspapers Ltd & Anor v. Ajehof 2011, the apex court was confronted with a similar argument like the instant one of libel action being a personal action so a claimant needs prove damage to his reputation to ground his claim. That was in 1995 in Cross River State Newspaper Corp. v. Oni & 6 Ors supra. There the seven respondents as claimants sued the appellants for libel published of and concerning them by the appellants in their (appellants) Nigerian Chronicle newspaper. At the trial, only the 3rd claimant and a non-party witness testified for the respondents. The learned trial Judge nevertheless entered judgment of N8,000 for each of the claimants/respondents. On the appellants’ appeal to the apex court they questioned the award in favour of the six respondents who did not testify to their reputation. Their argument was captured by the apex court thus at p. 292: “It was further submitted on behalf of the appellant that an action for libel is a personal action for the vindication of one’s character and reputation and that each of the plaintiffs/respondents was in court to defend his reputation. Their reputations, it was argued, did not stand or fall together. Some could succeed and others might fall. It was then contended that the issue of the good reputation was not common to all the respondents.” In dismissing the argument, Iguh J.S.C., pronouncing the lead judgment of the court, said at p. 292 as follows: “I think the point must be made that it is not the law that one’s general character or reputation must transparently be stainless, unimpeachable and without blemish whatever before one may successfully maintain an action for defamation. …………. Secondly, the law is firmly settled that every libel is itself a wrong in regard to which the law imputes general damages. If a plaintiff proves that a libel has been published of him without legal justification, his cause of action is complete and he needs not prove that he has suffered any resulting actual damage to his reputation for such damage is presumed by the law.” per. BOLOUKUROMO MOSES UGO, J.C.A.

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT WILL INTERFERE WITH A TRIAL JUDGE’S AWARD OF DAMAGES BECAUSE IT WOULD HAVE AWARDED A DIFFERENT FIGURE HAD IT HEARD THE CASE ITSELF

Here counsel are in agreement, and correctly too, that an appellate court will not interfere with a trial Judge’s award of damages simply because it would have awarded a different figure had it heard the case itself. It can, however, interfere when it is satisfied that the award was made on wrong principles, or that the Judge made an estimate of damages which is entirely erroneous in the sense that they are outrageously excessive or ridiculously too low. See also Guardian Newspapers Ltd v. Ajeh (2011) 10 NWLR (PT 1256) 574 @ 603 where it was said, per Fabiyi J.S.C., that: “As a matter of general principle, an appellate court would not interfere with an award of damages by a trial court simply because faced with a similar situation and circumstance it would have awarded a different amount. An appellate court will however interfere with an award by a trial court where it is clearly shown that it acted upon wrong principle of law, or that the amount awarded is outrageously high or ridiculously low; or that the amount was an entirely erroneous and unreasonable estimate having regard to the circumstances of the case, see Zik’s Press Ltd v. Ikoku (1951) 13 WACA 188; Williams v. Daily Times (1990) 1 SC 23; (1990) 1 NWLR (pt.124) 1 at 49, 55; Oduwole & Ors. v. Prof Tam David-West (2010) 3-5 SC (pt. 111) 183 at 195, (2010) 10 NWLR (Pt. 1203) 598. See also British Airways v. Atoyebi (2014) 13 NWLR (PT 1424) 253 @ 287-288 & P. 289 (S.C.). per. BOLOUKUROMO MOSES UGO, J.C.A.

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria

Between

1. WESTERN PUBLISHING COMPANY LIMITED

2. MR. REMI KOLEOSO – Appellant(s)

AND

DR. KAYODE FAYEMI – Respondent(s)

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal raises some interesting issues of the practice and procedure of, and the assessment/award of damages in, libel actions.

The appeal itself stems from, and is against, the judgment of the High Court of Ekiti State, presided over by C.I. Akintayo J., wherein in Suit No HAD/84/2012 it adjudged the appellants (the defendants in the lower court) liable for Libel and consequently awarded aggravated damages of Two Billion Naira (N2,000,000,000), among other orders, against them and in favour of the respondent (claimant at the lower court) who was at the material time the Governor of Ekiti State.

The subject matter of the said libel is contained in four editions of the appellants’ Nigerian Compass newspaper which, it is common ground, is widely circulated and read all over Nigeria, especially Ekiti State, and also has a website in the internet that makes it accessible to the whole world.

In their said publications, of which three were tendered at the trial as exhibits as Exhibits I, J, and K (the 4th untendered one being also admitted by the appellants to have been published by them), they alleged:

1. In the Saturday, August 25, 2012 edition (Exhibit I) the following headline story in its front page and credited to the 2nd appellant (stated as its Abuja correspondent):

HELP! Fayemi is deducting N1 billion from councils monthly -NULGE.

The said headline – with the capitalized word HELP printed in red like the paper’s masthead with the obvious intention of attracting special attention – which continues on its second page with the same very bold title but this time in blue print (the only news item in blue print in the entire paper 48-page paper), alleged that the Ekiti State chapter of the Nigeria Union of Local Government Employees (NULGE) had accused the respondent, the Governor of the state, of “dipping his hands into the purse of the third tier of government” and “deducting a minimum of N1b from the local government accounts monthly in the last few months.” The publication, said to be based on a letter the appellants claimed to have obtained from Ekiti State chapter of NULGE, alleged among others NULGE’s purported complaint of the inability of the Ekiti State Government under the respondent’s leadership to pay its workers the new minimum wage approved for local government councils. The publication ended on the following note on p.2 of the paper:

“The union restated its belief that the federal allocations to local government councils in the state could accommodate the new wages but for the belief that the money is being diverted by the Fayemi administration.”

2. The foregoing publication was quickly followed by a second one against the respondent by the appellants in their same newspaper the following day, Sunday, 26th August, 2012, on page 12. This time they accused him of using his position as Governor of the state to withdraw in one fell swoop a staggering sum of N250,000,000 (Two Hundred And Fifty Million Naira) from the coffers of Ekiti State Government with a view to bribing the Chief Justice of Nigeria and other Justices of the Supreme Court who were then hearing the appeal of his predecessor, former Governor Segun Oni, against the respondent’s election. For this act, the appellants further alleged, the Peoples Democratic Party (PDP) had asked the security agencies in the country to investigate the respondent. This publication, unlike the others, was not tendered, but the appellants in paragraph 7 of their statement of defence admitted publishing it, saying it was based purely on a statement credited to the PDP asking security agencies in the country to probe the claimant on his frequent trips to the United States of America where the Justices were believed to be vacationing then.

3. Six days later, on Saturday, 1st September 2012, the appellants came out with yet a third publication, Exhibit J, against the respondent, in very bold and screaming letters (with some words either given a special background or again out-rightly printed in red to attract readership) and as headline news of that day’s edition of their same newspaper. It was about ‘further developments’ concerning the N1b monthly council funds deduction and had the following headline:

Alleged illegal N1b deduction from Local Council funds: Ekiti NULGE dares Fayemi to go to court.

The appellants here wrote of a purported interview they had with the secretary of NULGE Ekiti State who was said to have laughed off a demand by the respondent to his Union to retract its letter or face litigation and was said to have dared him to go to court.

4. In a fourth publication (Exhibit K) on 4th September 2012 in their same paper, appellants under another headline “Controversy trails plan to cover up alleged N1b LG deduction in Ekiti” wrote of purported efforts being made by the respondent to cover up what they (appellants) referred to as the N1b ‘illegal deduction’ from Local Government account by ‘hurriedly calling an emergency Federal and General Purposes Committee (F & GPC) meeting where Caretaker Chairmen under the aegis of Association of Local Government of Nigeria (ALGON) agreed to co-fund the renovation of secondary schools in the state with N1b each.’

In his seventeen-paragraph statement of claim, the respondent complained that the appellants’ stories were all concocted, baseless, unfounded and deliberately and callously misrepresented by them to the public and accorded undue and undeserved sensationalism without any attempt to hear his own side of the story contrary to ethics of journalism.

He complained, too, that any reasonable man reading the publications of the appellants would get the impression that he was an irresponsible and fraudulent Governor who siphoned public funds at the detriment of the Local Government Councils’ workers and growth and development of the Local Government Areas of Ekiti State; that he was also portrayed as a selfish Governor who shamelessly in one fell swoop withdrew a staggering sum of N250,000,000.00 (Two Hundred And Fifty Million Naira only) from the coffers of the Ekiti State Government and travelled abroad with the Governor of Osun State to bribe the Chief Justice of Nigeria (CJN) and some Justices of the Supreme Court currently on vacation abroad so as to put undue pressure on them with a view to perverting the cause of justice in his appeal before them.

He said he demanded from the appellants a retraction of the offending publications but they arrogantly ignored same and rather went further to concoct and fabricate an interview purportedly granted by the Secretary of the NULGE Ekiti State where they claimed NULGE dared him to go to Court when in actual fact the Secretary of NULGE in the State never granted any press interview.

He further averred that the chairmen of the Local Governments in Ekiti State were shocked to the marrow by the false claim/story that he was deducting N1b from the allocation of the Local Government in Ekiti State when he is not even a member of JAAC, the Committee handling the allocations to the Local Government Areas in the State. He said the chairmen under the auspices of Association of Local Governments of Nigeria (ALGON) consequently addressed a press conference to debunk the baseless and unfounded allegations of the appellants, explaining the manner and how the allocations to the Local Government Area are/were shared in the State.

He averred he also caused his solicitor to write NULGE through its Secretary that signed the letter in contention and demanded a retraction and a public apology for the offensive letter, which, he added, was also made available to the press, but to the chagrin of the claimant, in a letter written by the solicitor to NULGE in Ekiti State, the Union denied granting any press interview to the appellants or making available a copy of their letter to them for publication and requested them (appellants) to explain the source of the letter they published.

He averred that the publications injured his reputation and exposed him to hatred, contempt and ridicule and he is being avoided and/or shunned by many people who are still shocked by the publications and feel very disappointed. He complained that his credentials, odyssey and track record as a gentleman per excellence, a man of unquestionable character and one of the Governors that have zero-tolerance for corruption and an advocate of good governance have been adversely affected and greatly jeopardized; that the malicious publications have done incalculable and tremendous injury to his image and personality as an international figure who has carved a niche for himself as a social crusader, human right activist of international repute and whose mission as Governor of Ekiti State is to better the lots of his people within the available resources; that as a result of the offending publications he has been inundated with calls, mails and messages from within and outside the shores of Nigeria; that members of his family, friends, Human Rights groups all over the globe, former and incumbent Governors in this Country, his political party the defunct Action Congress of Nigeria, its leaders and supporters, prominent indigenes of Ekiti State home and abroad and numerous well-wishers have expressed their shock and disappointment on the issues and are puzzled and flabbergasted that he could be involved in such corrupt practices and also had such effrontery to bribe Justices of the apex court.

He complained, too, that the respondents were out to ridicule him for no reason hence they fraudulently and shamelessly smuggled in the words “State Governor” while purportedly quoting from the NULGE’s letter in their newspaper. He consequently claimed against them:

1. “A retraction of the libelous publications.

2. A public apology to the claimant for the offensive publications which shall be published in the Compass Newspaper and at least two other prominent National Newspaper in Nigeria and post same on the internet.

3. Exemplary or aggravated damages in the sum of N10,000,000,000.00 (Ten Billion Naira Only) for the libelous publications against the claimant.

4. Perpetual injunction restraining the Defendants from publishing similar or further libelous publication(s) against the claimant.

5. Cost of this suit.

6. 10% interest on the judgment sum from the date judgment is delivered until judgment sum is finally liquidated.”

In response, the defendants filed a 17-paragraph statement of defence, where they admitted responsibility for all the four publications credited to them and, as earlier said, also admitted the extent and wide circulation of their newspaper including the fact that it also maintains a website in the internet where it could be read worldwide. They then put up a plea of justification by averring thus in paragraph 4 of their statement of claim:

4. The 2nd defendant deny paragraph 3 of the statement of claim to the extent that the story complained of by the claimant is true in every material respect and put the claimant to the strictest proof of any assertion to the contrary thereof.

They thereafter went to plead fair comment on a matter of public interest, saying among others as follows:

8. Both stories complained of in paragraphs 6 and 7 above did not originate from the Defendants. The stories were based on peoples’ grievances, without any addition, conclusion or adjudging the Claimant guilty of any offence or misappropriation of funds.

9. The Defendants published the stories in good faith, without any malicious intent and in accordance with due diligence and professionalism, in line with the constitutional duty by the Defendants to receive and impart information to the public.

10. The Defendants aver that as a public officer entrusted with public funds and welfare of the people, the Claimant’s activities, policies and mode of governance must necessarily be in the public domain, subjected to serious scrutiny and criticism by members of the public at all times, while the Defendants have the professional duty to inform the people based on such criticisms without more.

They rounded off their statement of defence by asserting/urging thus at paragraph 17:

17. Whereof the defendant say that this case is misconceived, frivolous, speculative, unfounded, unwarranted, calculated to harass and embarrass the defendants, thereby constituting a gross abuse of process of this Honourable Court and it should be dismissed with substantial costs.

Italics mine.

In preparation for the trial, two of respondent’s aides swore to witness statements on his behalf and also testified to the averments in the statement of claim. These witnesses also tendered all the relevant documents including the libelous publications in issue.

The claimant himself neither swore to witness statement nor testified in the case, and that is one of the big issues in this appeal.

On their part, the respondents caused their legal Officer, one Funmilola Adelekan, to swear to a witness statement in line with their statement of defence, including the plea of justification and the description of the claim as frivolous, unfounded, calculated to harass and embarrass them and so worthy of dismissal with cost. At the trial however, they elected not to call any witness even as they were represented by counsel who cross-examined the respondent’s two witnesses.

Upon conclusion of evidence, the appellants entreated the court to allow parties file final addresses, which the court duly obliged. The respondent’s counsel, in obedience, filed his address but the appellants who made the application did not file theirs. The respondent’s counsel thereafter adopted his written address, after which judgment was delivered by the court on 16th December, 2013.

In its judgment, the learned trial Judge, as earlier said, adjudged the appellants liable for libel. His Lordship then went on to award aggravated damages of N2b against the appellants and in favour of the respondent among other orders. The relevant part of the judgment of the learned trial Judge went thus:

“The Judgment of this Court is that the Defendants shall retract the libelous publications forthwith. The Defendants shall make a public apology to the claimant for the offensive publication which shall be published in the Compass Newspapers and in at least two other prominent National Newspapers in Nigeria and post same on the internet.

I award aggravated damages of N2,000,000,000.00 (Two Billion Naira Only) in favour of the claimant against the Defendants for the libelous publications against the claimant.”

The appellants are dissatisfied with that judgment hence this appeal to this court founded on Five-Grounds, from which they framed the following issues for determination:

i. Whether the learned trial judge rightly or wrongly held that the Claimant/Respondent in a personal/private action (libel) who did not testify on his reputation and injury to his reputation and who failed to testify in support of the reliefs claimed by him had discharged the onus of proving libel and his entitlement to the reliefs granted in his favour.

ii. Assuming Learned trial Judge rightly held that the respondent discharged the onus of proof of libel, whether learned trial Judge correctly applied relevant principles of law in concluding that the Respondent was entitled to the award of aggravated damages.

iii. Assuming Learned trial Judge rightly held that respondent is entitled to aggravated damages, whether the award of N2 Billion is not manifestly excessive, oppressive and out of tune with the pattern of award of damages in libel cases as to justify the intervention of this Honourable Court by way of setting aside of same.

The respondent adopted these three issues of the appellants but slightly modified issue 1 to read:

Whether the learned trial Judge, rightly or wrongly held that the claimant/respondent in a personal/private action (libel) who did not testify on his reputation and injury to his reputation and who failed to testify in support of the reliefs claimed by him had discharged the onus of proving libel and his entitlement to the reliefs granted in his favour.

Briefs of argument were filed by counsel to the parties: Professor Osipitan S.A.N. for the appellants and Mr R.O. Balogun for the respondents. Mr Balogun, in his brief, even raised a preliminary objection to issue 1 above formulated by Professor Osipitan which he tied to grounds 2 & 5 of his grounds of appeal. He urged us to strike out the said issue 1 as it does not relate to grounds 2 and 5 or any other ground of appeal.

Upon service of Mr Balogun’s brief for the respondent, learned senior counsel Osipitan S.A.N. filed a reply brief where he among others insisted issue 1 arose from grounds 2 and 5 of the appellants’ grounds of appeal as indicated in his brief.

In respect of the main issues, both counsel in their briefs argued issue 1 separately and issues 2 and 3 together.

Before I go to the argument on the issues, let me dispose of the preliminary objection.

Preliminary objection: As already said, the preliminary objection of Mr Balogun for the respondent is that the appellants’ Issue 1 did not arise from Grounds 2 & 5 of their grounds of appeal they indicated it related to. Issues must arise from the grounds of appeal and an issue that is unrelated to the grounds of appeal ought to be struck out, he argued.

As also previously said, Prof Osipitan S.A.N. for the appellants insists issue 1 formulated by him arose from Grounds 2 & 5 of the appellants’ grounds of appeal to which he tied them and so it is a valid issue.

Now Grounds 2 & 5 of the appellants’ grounds of appeal read thus:

GRDii. The Learned trial judge erred in Law by entering judgment in favour of the plaintiff/Respondent for the tort of Defamation (Libel)

Particulars

(A) The plaintiff/respondent who did not prosecute the case through an Attorney did not give evidence in support of his claim for libel.

(B) The plaintiff/respondent did not give any evidence of his entitlement to the reliefs sought.

(C) In the absence of specific claim for relief by the Plaintiff/Respondent the Learned trial judge acted without jurisdiction in granting monetary and injunctive award/any award/relief in favour of the Respondent.

(D) An action in libel is an action in personam which only the Plaintiff/Respondent is entitled to ask for reliefs.

(E) Being an action in personam Plaintiff must testify in support of his relief and not through proxy.

GRD V: Learned trial judge erred in Law by entering judgment in favour of the Claimant/Respondent on the ground that the Defendants/Appellants’ abandonment of the Statement of Defence amounted to an admission of libel by the Defendants/Appellants.

Particulars

(A) The Claimant/Respondent who alleged against the Appellants has the burden of proving all the essential elements of libel.

(B) There is no room for admission through non-calling of evidence in support of statement of defence in libel cases.

I have no doubt that issue 1 objected to by the respondent where the appellants asked Whether the learned trial judge, rightly or wrongly held that the Claimant/Respondent in a personal/private action (libel) who did not testify on his reputation and injury to his reputation and who failed to testify in support of the reliefs claimed by him had discharged the onus of proving libel and his entitlement to the reliefs granted in his favour clearly relates to their complaint in Ground 2 of their grounds of appeal earlier reproduced, where they complained that (a)the plaintiff/Respondent did not give any evidence of his entitlement to the reliefs sought, (b)in the absence of specific claim for relief by the Plaintiff/Respondent the learned trial judge acted without jurisdiction in granting monetary and injunctive award/any award/relief in favour of the Respondent, (c)an action in libel is an action in personam which only the Plaintiff/Respondent is entitled to ask for reliefs, (d)being an action in personam, Plaintiff must testify in support of his relief and not through proxy. In the light of that, the preliminary objection is misconceived and is overruled.

With that, I go to the arguments of counsel on the substantive issues, starting with issue I.

Issue I:

Even though Prof Osipitan for the appellants in his brief of argument titled his Issue 1, Non-Discharge of Burden of Proof of Libel by Respondent Who Failed to Testify in a Private/Personal Libel Case, he nevertheless split his arguments under it into two ambits of:

1. Whether having regard to the part the reputation of a claimant plays in a defamation action the respondent who did not testify in the lower court to the damage to his reputation can be said to have discharged the burden of proof on him to justify the judgment the court entered in his favour; and

2. Whether the respondent who did not testify at all in the lower court to personally ask for the reliefs he endorsed in the action could not be said to have abandoned his said reliefs and the lower court was right and possessed jurisdiction to grant them to him.

On the first ambit of this issue as to ‘whether having regard to the part the reputation of a claimant plays in a defamation action, the respondent who did not testify at all at the trial in the lower court on the damage to his reputation can be said to have discharged the burden of proof on him to justify the judgment the court entered in his favour’, Prof Osipitan first submitted that the principle is that the burden of proof in civil cases is that he who asserts the affirmative should prove his assertion. That principle, he argued, applied to libel cases, consequently the respondent whose action is based on libel has the burden of proving all its ingredients, namely (a) that there was a publication of false material (b) the publication referred to the claimant, (c) the defendant must have been responsible for the publication and (d) the false publication must have caused injury to the claimant’s reputation. He contended that there is no room for admission of libel and so the claimant in a libel action (i.e. action for injury to reputation) “must prove in the same manner a person who seeks declaratory reliefs is expected to prove his/her entitlement to such reliefs”, he cannot rely on the appellants’ decision not to call evidence in their defence to prove his case as the trial Judge he said seemed to suggest in his judgment. He submitted that the respondent had a burden to prove the damage to his reputation, and that, he said, he has to do by ‘placing before the trial court his reputation before the libelous publication and the adverse effect of the libel on his reputation after the publication’, as proof of injury to reputation is an essential ingredient in a libel action. The appellant, learned senior counsel continued, ought to testify personally (and not through witnesses as he did before the trial judge) to how he was ridiculed and avoided by right thinking persons of society; that without his direct evidence he would not have discharged the burden of proof on him. The fact that the CW1 and CW2 were working for the respondent and still continue to work for him and have not distanced themselves from respondent after the publication, he argued, shows that his image with them was not adversely affected. He further argued that the messages and mails CW1 and CW2 claimed they received from concerned persons about the libelous publications were not also tendered even as the evidence of the said two witnesses on the respondent’s damaged reputation is hearsay as it is only the respondent who can properly testify to his reputation. If the evidence of CW1 and CW2 are disregarded, counsel added, there would be no other evidence to support the ‘ingredient of damage to the reputation’ of the respondent in the eyes of right thinking members of society and so he would have failed to discharge the burden on him and his case ought to have been dismissed. On these arguments he cited a cornucopia of cases including Nigerian Minster and Marine Ltd v. Chief Tunde Smooth & Ors (2012) ALL FWLR (PT 664) 87 @ 108; N.R.W. v. Akingbulugbe (2011) 11 NWLR (PT 1257) 131 @ 145; Amuzie v. Asonye (2011) 6 NWLR (PT 1242) 19 @ 45; Vanguard v. Olafisoye (2011) 14 NWLR (PT 1267) 207 @ 232; Azenabor v. Bayero (2009) 17 NWLR (PT 1169) 96 @ 116; Ogundipe v. A.G. Kwara State (1193) 11 NWLR (PT 1257) 131 @ 145; Chime v. Ezea (2009) 2 NWLR (PT 1125) p. 363 @ 402; Osuoha v. The State (2010) 16 NWLR (PT 1219) 131 @ 145; Ajadi v. Ajibola (2004) 16 NWLR (PT 898) 91 @ 162; Awuse v. Odili (2004) 8 NWLR (PT 887) 332; Jolayemi v. Alaoye (2004) 12 NWLR (PT 887) 322 and U.B.N. v. Ishola (2001) 15 NWLR (PT 736) 47.

On the second ambit of his argument which he tagged No Evidence in Support of Reliefs Claimed and which spans 5.0 to 5.8 of his brief of argument, learned counsel for the appellants argued that since the respondent did not personally testify to the reliefs claimed by him there was no prayer from him for the lower court to have granted in his favour. He argued at paragraph 5.2 thus:

We submit that pleadings do not amount to evidence. And where as in this case the respondent failed to give evidence in support of paragraph 19 of the claim (consists of the relief claimed by him) the said paragraph goes to no issue and will be treated as having been abandoned.

He added the court is not a charitable institution and therefore will not grant a relief not properly prayed for by a litigant. He said that the evidence of the CW1 to the effect that he was aware of the reliefs claimed by the respondent did not make any difference as knowledge of reliefs is not the same thing with praying for reliefs, which CW1 cannot even properly do as he had no reliefs himself to pray for. Learned silk urged us to hold that the appellant by his decision not to testify abandoned his reliefs so there was nothing for the lower court to have properly granted him and it was in error in not dismissing his case: citing U.B.N. v. Jimba (2001) 12 NWLR (PT 727) 505 @ 520; Mustapha v. Abubakar (2011) 3 NWLR (PT 1233) 123 @ 151; EB Plc, Awo Omamonu v. Nwokoro (2012) 14 NWLR (PT 1321) 488 @ 508; Honika v. Sawmill Nig. Ltd v. Hoff (1994) 2 NWLR (PT 326) 252 @ 266 and Stowe v. Benstowe (2012) 9 NWLR (PT 1306) 540 @ 464-466 on this point.

In his response in the brief of argument he filed for the respondents, Mr R.O. Balogun described all the foregoing arguments of learned senior counsel as misconceived. He submitted that the correct position of the law is that a party in a civil proceeding need not appear personally to testify in his case if he can otherwise prove it either by tendering documents or through the evidence of witnesses or where his case is admitted by the opposite party, adding that such failure by a litigant to personally testify cannot and will not be a ground for refusing what he is entitled to neither does it mean abandonment of his claims as contended by the learned silk. Counsel cited the cases of Okonkwo v. Chukwueke (1992) 1 NWLR (PT 216) 192; Agbi v. Ogbeh (2006) 5 S.C. (PT 11) 149 @ 153 and Cross River Newspaper Corp. v. Oni & 6 Ors (1995) 1 NWLR (PT 371) 270. In the instant case, he argued, the respondent through his witnesses testified to the libelous publications, gave relevant and admissible evidence and tendered all the necessary documents including the publications in issue. That, he argued, is sufficient proof of his case and the respondent needed not personally testify before the court could grant his claims. He referred to relevant paragraphs of the respondent’s pleadings and particularly the nature of his case which was for libel and submitted that in cases of libel, damage to reputation is presumed once a claimant proves that libelous statements were published of and concerning him by the defendant. That being the case, he continued, the respondent did not need to personally testify before the court to prove his case in a libel suit; that his cause of action is complete upon proof of the libelous publication. He cited dicta from the Supreme Court decisions of Cross River State Newspaper Corp. v. Oni & 6 Ors supra; Guardian Newspapers Ltd & Anor v. Ajeh (2011) 10 NWLR (PT 1256) 574; and Oduwole v. David-West (2010) 10 NWLR (PT 1203) 598. He submitted that the cases cited by learned silk are inapplicable as they are either election matters, criminal matters or out-rightly distinguishable on their facts. He said the only libel case cited by the appellants’ counsel on the issue of proof of averments in libel action, which is Vanguard v. Olafisoye (2011) 14 NWLR (PT 1267) 207 @ 232, a decision of this court, rather supported his arguments. Counsel finally urged us to resolve Issue 1 against the appellants.

Resolution of issue I:

The appellants having argued their first issue in two ambits, I shall here also strive to resolve it in its different limbs. I shall however take the two limbs of the issue in reverse order by starting with the question of whether the failure by the respondent to testify personally amounted to an abandonment of his reliefs and the learned trial judge was wrong and without jurisdiction to enter judgment on such ‘abandoned’ reliefs. It is if I resolve that question in the respondent’s favour that it will become necessary for me to consider the other ambit of this issue of whether the respondent had a duty to testify to his reputation in a libel action like the instant one and if his failure to do so was fatal to his case.

A. Issue of abandonment of reliefs by reason of respondent’s failure to personally testify and ask for them.

On this ambit of issue 1 of purported abandonment of his reliefs by reason only of respondent’s failure to personally testify and ask for them, I am afraid the contention of learned silk for the appellants does not, with due respect, represent the correct position of the law. Reliefs, which is the subject of his complaint here, are not facts that a witness can ordinarily testify to. Facts belong to the litigant, who supplies them to counsel, and it is upon receipt thereof that counsel uses his legal knowledge to draft the appropriate reliefs due the litigant from those facts. It is the facts of the case so supplied by litigant to counsel that witnesses, be they parties to the case or otherwise, testify to and is deemed to have abandoned if they fail to so do. That much is what the Supreme Court, per Uwaifo J.S.C., said in Jekpe v. Alokwe (2001) F.W.L.R. (PT 1013) 1027-1028 H-D as follows:

“The point to make here is that the principle of law that evidence must be led to support averments in a statement of claim does not require a plaintiff to recite viva voce by heart in his testimony before the court each item of the reliefs he seeks in his statement of claim. A statement of claim may contain a variety of reliefs. The preparation of reliefs sought by a plaintiff is a function of the legal practitioner who settles the statement of claim from the brief he receives from his client. A plaintiff is not expected to know the niceties of the reliefs derivable from the totality of the facts he confides to his solicitor. Mr. Okeaya-Inneh, SAN, was quite right when he said the plaintiffs were claiming the reliefs stated in the amended statement of claim. Indeed, it is counsel who would say so in his submission. That is not for the plaintiff or any of his witnesses. It was, therefore, surprising that the learned trial Judge thought that if a plaintiff did not in his oral evidence enumerate all the reliefs he sought, he had not led evidence to support his claim and would, therefore, lose his action. At that stage, the learned trial judge did not, obviously, have in mind the evidence in support of the merit of the case. It was a mere irritating faux pas committed by him. The itemization of the reliefs sought does not require, if I may repeat, oral evidence for the purpose of applying the principle in Mogaji vs. Odofin (1978) NSSC (vol. 11) 275 at 277.”

The apex court reiterated the above point in Shittu v. Fasawe (2005) ALL FWLR (PT 278) 1017, with Musdapher J.S.C., as he then was, stating first the argument thus:

“It is also argued that the respondent having failed to give evidence, and there was no evidence whatsoever on the reliefs claimed by him, the relief must be deemed to have been abandoned and the courts ought not to have granted them.”

And then answering it at p.1034 as follows:

“Now, the other issue is the effect to his claims by the respondent when he did not give evidence to recite his prayers before the trial judge. Although the learned counsel raised the issue in his address before the trial Judge, the trial Judge did not discuss the issue in his judgment. But the issue came to the Court of Appeal not as an issue raised by the appellants which was not decided by the trial court but seemingly as a fresh issue because it did not arise from the judgment of the trial court. The Court of Appeal in my view dealt with the matter adequately and properly. It is correctly stated in my view that there is no necessity for a party to appear in court and give evidence so long as the claims are proved to the satisfaction of the court. I find the appellants’ complaint on this point invalid.”

See also Cross River State Newspaper Corp. v. Oni & 6 Ors (1995) 1 NWLR (PT 371) 270, a case of libel like the instant one where a similar argument was made and the apex court, per Iguh J.S.C., dismissed it thus:

“The second arm of the said issue has questioned whether the failure of each of respondents to testify on his behalf was fatal to his case.

Now, in the instant case not only did Mr Balogun for the respondent in the final written address he filed for the respondent at the lower court pray it specifically to grant the reliefs sought by his client (see pages 133-134 of the records), he again in open court on 13/11/2013, when adopting and relying on the said final address, prayed it to grant ‘all the reliefs of the claimant’: see p. 140 of the records. That surely suffices, even as I shall venture to say that even counsel’s omission to say so would not have been sufficient reason to deny the claimant his relief if he made out a case for them by the evidence he presented, either personally or through some other means, before the court – which may not even require his personal attendance or testimony – or where his case is admitted or the burden on him is discharged at the close of pleadings. The focus should be whether the claimant has made out his case on the merits. At least that much I can gather from the statements of their lordships of the apex court in Jekpe v. Alokwe and Shittu v. Fasawe and Cross River State Newspaper Corp. v. Oni & 6 Ors above, where they emphasized the proof of the merits of the case.

Let me quickly add, too, that the position of the law as stated above is not at all affected by the case of Stowe v. Benstowe (2012) 9 NWLR (PT 1306) 540 which learned silk cited on the point in his list of additional authorities. The issue in Stowe v. Benstowe as relating to reliefs was whether an endorsement by a claimant in his statement of claim that ‘the claimant claims as per the Writ’ satisfied the provisions of the rules of court requiring claimants to specifically endorse their reliefs in the statement of claim. It is that question the Supreme Court answered in the negative and made an order striking out the claimant’s case. There is no question of insufficient endorsement of claims here so Stowe v. Benstowe should not be dragged in here willy-nilly by its hair.

This ambit of the argument therefore fails.

B. And now the argument that the respondent ought to testify to prove damage to his reputation and his failure to do so is fatal to his case for libel.

The pith of the argument of learned senior counsel for the appellants here is that there is a burden on a claimant for libel (here the respondent) to prove damage to his reputation and this he can only discharge by personally testifying to it, failing which his case is deemed not proved. Here again, with all due respect, I am afraid learned senior counsel is wrong, for there is no such duty on a claimant in a libel action (as well as all categories of slander actionable per se) to discharge before he can succeed in his action.

First on the sub-argument that appellant (as claimant) ought to prove his reputation ‘before’ the false publication; there is actually no such duty, because the court in defamation cases generally proceeds on a presumption of the unblemished character of the claimant – as is evident from McGregor on Damages, 18th Edition at Para 39. 056 (p.1621) where the law is stated thus:

The court starts with a presumption in favour of the claimant that his reputation is unblemished, and therefore where the defendant does not seek, either in pleading or proof, to challenge this the court will not permit the claimant to introduce evidence of his good reputation in the community. Such a refusal appears in Cornwall v. Richardson (1825) Ry. & M. 308 where there was even a plea of justification, and also in Guy v. Gregory (1840) 9 C & P. 584 where evidence to show that the claimant’s wife (to whom the libel had also referred) was rejected.

The foregoing position is also confirmed by Gatley on Libel & Slander at Para. 34. 60 where, writing on the subtopic Evidence of Claimant’s Good Conduct or Reputation: Whether it is Necessary: it is stated thus:

It has been stated that evidence of the claimant’s good character or reputation is, as a rule, neither relevant nor necessary in an action of defamation, for the law presumes his character is good until the contrary is proved, and he can safely rest on that assumption.

Emphasis mine.

But even most importantly on this argument of learned senior counsel of the appellants that the claimant/appellant has a burden to prove damage to his reputation, there is actually a legal presumption that a claimant against whom libelous publication is proved to have been made would have suffered some damage to his/her (presumed unblemished) reputation once he/she proves the libelous nature of the document, he/she therefore does not need to prove actual damage to his/her reputation to successfully maintain his/her action. For this reason even if such a claimant avers to actual damage to his/her reputation but fails to prove it he/she will still be entitled to substantial damages. This position of the law is too settled to admit of a contrary argument as is being made here by learned silk. The learned authors of Tort by Winfield & Jolowicz, 18th Edition, by W.V.H. Rogers, at Para. 12-5, p. 572 stated this position of the law thus:

In cases of libel (and in some cases of slander) the claimant can recover general damages for the injury to his reputation without adducing any evidence that it has in fact been harmed, for the law presumes that some damage will arise in the ordinary course of things. If, of course, the claimant in a libel case contends that actual damage has been suffered he can plead it and prove if he can, but even if he breaks down on this point he may still be able to recover general damages.

See also Halsbury’s Laws of England, 4th edn, VoL 28 where the law is stated as follows:

Pleading, Practice and Relief:Para.179: Pleading damages in actions of libel and slander actionable per se.

This point is also echoed in Gatley on Libel and Slander, 18th edition, at Para. 34.50 where the learned authors, quoting Bowen L.J in Ratcliffe v. Evans (1982) 2 Q.B. 524 @ 528 and Lord Goddard L.J in Scottish Co-operative v. Odhams Press Ltd (1940) 1 K.B. 440 @ 461, said thus:

Damage presumed: in cases of libel or slander actionable per se, the claimant need not prove actual damage, for:

‘The law presumes that some damage will flow in the ordinary course of things from the mere invasion of his absolute right to reputation.’ Per Bowen L.J.

‘There is no obligation on the plaintiffs to show that they have suffered damage ……. In every case (a plaintiff) is entitled to say that there has been a serious libel upon him, that the law assumes he must have suffered damage, and that he is entitled to substantial damages.” Per Lord Goddard L.J.

Emphasis mine.

McGregor on Damages, 18th edition, at Para. 45.007 also confirms it thus:

Certain damage may be inferred or presumed: this is particularly so with non-pecuniary losses. Thus by showing serious personal injury to the claimant, it may be inferred that pain and suffering resulted. More technically, damage is sometimes said to be ‘presumed’, particularly in cases involving injury to reputation. In defamation the court is entitled to award substantial damages although proof of damage is not produced.

Emphasis mine.

And after enumerating several cases where this was done, the learned authors stated as follows in Para. 45.008.

In all these varied cases such inferences of damage may be regarded as legal presumptions operating in the claimant’s favour, to some extent obviating the necessity of production of evidence of damage by him.

Emphasis mine.

This state of the law has the imprimatur of the Supreme Court of Nigeria too. In fact in Ejabulor v Osha (1990) 5 NWLR (PT 148) 1 at p.15 (para H) the apex court, in dismissing similar arguments that proof of actual damage to reputation is a sine qua non to success in a libel action, said:

“….questions relating to proof of damages are totally alien to an action for libel”.

The apex court reaffirmed this settled principle of law in Oduwole v. David West (2010) ALL FWLR (PT 532) 1634 at pages 1657-1658 (and also in Guardian Newspapers Ltd & Anor v. Ajeh (2011) 10 NWLR (PT 1256) 574; (2011) ALL FWLR (PT 584) 1 @ p. 27) saying, per Fabiyi J.S.C., that:

“It must be reiterated here that every libel is a wrong in regard to which the law imputes general damages. If a plaintiff proves that a libel has been published of him without legal justification, his cause of action is complete. He needs not prove that he has suffered any resulting actual damage or injury to his reputation for such damage is presumed: English and Scottish Co-operation Properties v. Odhams (1916) 1 KB 440 @ 445; Jones v. Jones (1916) 2 AC 481 @ 500.”

Emphasis mine.

In between Ejabulor v. Oshaof 1990, Oduwole v. David-West of 2010 and Guardian Newspapers Ltd & Anor v. Ajehof 2011, the apex court was confronted with a similar argument like the instant one of libel action being a personal action so a claimant needs prove damage to his reputation to ground his claim. That was in 1995 in Cross River State Newspaper Corp. v. Oni & 6 Ors supra. There the seven respondents as claimants sued the appellants for libel published of and concerning them by the appellants in their (appellants) Nigerian Chronicle newspaper. At the trial, only the 3rd claimant and a non-party witness testified for the respondents. The learned trial Judge nevertheless entered judgment of N8,000 for each of the claimants/respondents. On the appellants’ appeal to the apex court they questioned the award in favour of the six respondents who did not testify to their reputation. Their argument was captured by the apex court thus at p. 292:

“It was further submitted on behalf of the appellant that an action for libel is a personal action for the vindication of one’s character and reputation and that each of the plaintiffs/respondents was in court to defend his reputation. Their reputations, it was argued, did not stand or fall together. Some could succeed and others might fall. It was then contended that the issue of the good reputation was not common to all the respondents.”

In dismissing the argument, Iguh J.S.C., pronouncing the lead judgment of the court, said at p. 292 as follows:

“I think the point must be made that it is not the law that one’s general character or reputation must transparently be stainless, unimpeachable and without blemish whatever before one may successfully maintain an action for defamation. ………….

Secondly, the law is firmly settled that every libel is itself a wrong in regard to which the law imputes general damages. If a plaintiff proves that a libel has been published of him without legal justification, his cause of action is complete and he needs not prove that he has suffered any resulting actual damage to his reputation for such damage is presumed by the law.”

Now, in the instant case it has not been suggested that the publications in issue where the appellants accused the respondent of corruption of the most heinous kind of siphoning/diverting billions of Naira from the coffers of Ekiti State Government and its Local Governments to his personal use and also trying to corrupt the Justices of the Supreme Court were not false and so not libelous. On the contrary, they even put up a plea of justification on the record (specifically in their statement of defence and witness statement), but did not follow it through by proving it at the trial neither did they withdraw it from the record. These false and very damaging (and so libelous) publications of the appellants against the respondent (the trial Judge so found them and it is not an issue on appeal) were tendered and/or admitted so his course of action is complete on the state of the authorities, therefore his decision not to testify is of no consequence to the success of his action as he did not need to prove that he actually suffered damage even if he pleaded so. It also makes no difference to the success of his action that he did not tender the messages or emails of those who called or sent messages to express their disgust with his said corrupt conduct (as argued by learned senior counsel) and/or that CW1 and CW2 did not avoid him. Damage is presumed and will ensue: see again Winfield and Jolowicz’ and Halsbury’s Laws of England’s exposition of the law as earlier stated.

I shall also resist the appellants’ invitation to us to discountenance the evidence of CW1 and CW2 about the publications and the fact that they still worked with respondent thereafter, which learned silk argued suggested his reputation was not affected in the eyes of his two witnesses. It must however be noted that these two witnesses both swore to their initial disappointment with the respondent’s alleged conduct until they later found out the truth. In any case, their evidence on that issue in their witness statements in a defamation action like the instant one is a relevant fact. Incidentally, a similar argument like this was raised in Oduwole v. David-West supra and rejected by this court and approved by the Supreme Court, as shown in pages 1668 para A-H, per Ogbuagu J.S.C. In that same case, the apex court, per Fabiyi J.S.C. said at p. 1658-1659:

“The appellants felt that the issue of upset and embarrassment of PW4 who read the publication should not be taken into account in computing damages. I do not think that stance posed by the appellants is correct. This is because the upset and embarrassment of PW4 who read the publication should be taken into account in computing damages as it shows the repulsive effect of the publication on one reading member of the public. PW4 said he saw the respondent as a role model. Offoboche v. Ogoja Local Govt. at page 1051.”

In the result, Issue 1 of the appeal, for all the foregoing reasons, fails in all its two ambits and is here resolved against the appellants.

Issues 2 & 3

These two issues, which relate to the propriety of the award of aggravated damages as well as its assessment at N2Billion by the lower court, were argued by both Prof. Osipitan S.A.N. for the appellants and R.O. Balogun together in their various briefs for their clients, though Prof Osipitan devoted paragraphs 6.1 to 6.7 of his brief of argument to the issue of the validity of the award of aggravated damages and used paragraphs 6.8 to 6.13 of his same brief to question the assessment of damages of N2b awarded the respondent by the lower court as aggravated damages. I shall here set out his argument on the said two issues as he argued them.

Commencing his argument against the award of aggravated damages, Prof Osipitan first observed that the respondent claimed Ten Billion Naira (N10b) as exemplary and aggravated damages and claimed no general or any other form of damages. Learned counsel then went on to repeat his argument, which I have just dismissed, of the need for the respondent to have testified to his damaged reputation, and secondly his injured feelings. He said again that, notwithstanding the personal nature of his action, that is, injury to reputation, the respondent who did not testify in the court below and who was not cross-examined by the appellants’ counsel was awarded aggravated damages of Two Billion Naira by the lower court. He observed that the learned trial judge in making the award was influenced by his observation of the appellants’ alleged ‘nonchalant conduct’ in defending the suit and mentioned it in his judgment. He argued that even assuming that the appellants were nonchalant in their conduct that is not a legal basis for awarding aggravated damages to the respondent who did not personally testify in support of how the appellants’ conduct aggravated his feelings or constituted extra insult to his person/dignity. He complained that the learned trial judge’s approach was wrong as aggravated damages are not awarded for the purpose of punishing a defendant but to compensate him for the ‘aggravated circumstances of the claimant’, as he put it, brought about by the conduct of the defendant. He added that apart from proving libel, a claimant who claims aggravated damages must plead particulars/grounds of the aggravating circumstances showing that the high-handedness of the defendant further injured him in his feelings of dignity and pride and/or that it resulted in diminution of his sense of self-esteem or self-respect. He cited Rookes v. Bernard (1964) 1 ALL E.R. 367. Aggravated damages, he continued, are evidently additional damages awarded for extra injury to the feelings of the plaintiff. Therefore there must be evidence of additional injury to plaintiff’s feelings. The evidence of such additional injury to feelings, he said, must ‘naturally’ come from the plaintiff. Therefore, where, as in the instant appeal, there is ‘no evidence from the plaintiff’ of extra injury to his feelings no aggravated damages can or should have been awarded. Counsel cited in support of his argument Collins Stewart Ltd v. The Financial Times No.2 (2005) EWHC 262, (2006) EMLR 100 @ 130; Applause Store Productions Ltd v. Firsht Raphael (2008) EWHC 1781, Carter & Ruck on Libel & Privacy, 6th edition, p.467 Para 5.34.

Coming to the assessment/award of N2 billion damages by the lower court in favour of the respondent, learned senior counsel observed that that “stands tall as the highest amount of damages ever awarded in Nigeria for defamation”. He said quite apart from the fact that the damages were excessive, it conveys the impression that it was made to punish the respondents and drive the 1st appellant out of business. He said the impression is further given that the lower court was more concerned with how to use the libel suit to unjustly enrich the respondent by conferring unjust financial benefit on him rather than a concern for his reputation. He submitted that in assessing damages for libel, damages awarded in fatal accident cases and cases of partial or permanent injuries in accident cases are relevant factors to be considered; that damages awarded in libel cases ought not to exceed awards in such cases. He cited the English case of John v. MGN Ltd (1996) 2 ALL E.R. 35 and directed our attention particularly to p.54 therein where it was said ‘it is offensive to public opinion and rightly so, that in defamation, claimant should recover damages for injury to reputation greater, perhaps by a significant factor, than if that same claimant had been rendered helpless, cripple or insensate vegetable.’ Counsel argued that aggravated damages are, and ought to be, compensatory, rather than punitive, reflecting a fair amount for the injury suffered by the claimant, citing Thompson v. Metropolitan Police Comr. (1997) 2 ALL E.R. 762.

Learned silk further complained that in awarding the said damages of N2b, the lower court failed to take into account the investment income accruable from it if it is invested in interest yielding savings account or put in a fixed deposit. He pointed out that the lower court even ignored the evidence before him to the effect that prior to instituting this suit the respondent had taken steps to launder his image in the public domain by causing a joint press conference of his aides and the ALGON Chairman of Ekiti State to proclaim his innocence.

Learned senior counsel finally submitted that the N2b aggravated damages awarded against his clients and in favour of the respondent by the lower court were excessive and punitive.

In his response, Mr Balogun for the respondent gave sixteen reasons (including relevant and irrelevant ones) why the aggravated damages of N2b awarded his client by the lower court should be sustained. Counsel mentioned, among the relevant ones, the fact that the appellants’ story was not only untrue but that they did not even verify it or try to hear from the respondent before going to press; the story was reported by the 2nd appellant who was not even 1st appellant’s Ekiti State correspondent but rather based in Abuja; the appellants maliciously introduced the words “Help! Fayemi is deducting N1 Billion Naira Monthly – NULGE” whereas there is nowhere in the letter from NULGE that contains such words; that the story was published in red in the front pages of their newspaper in screaming headlines to attract attention and with a view to promoting sales of their paper; that the appellants refused to comply with the respondent’s solicitor’s demand in Exhibit H to retract their allegation and apologise; that rather than do that, appellants continued to publish follow-up defamatory statements in their newspapers as shown in Exhibits J and K; that the appellants’ newspaper is widely circulated and is even on the internet.

Mr Balogun while conceding (citing Williams v. Daily Times of Nig. Ltd (1990) 1 NWLR (124) 1; (1990) LPELR- 3487) that this court can interfere with an award of damages by the lower court where it is excessively high or ridiculously low, beseeched us not to interfere in this case having regard not only to what he itemized above but also the fact that the respondent sued to challenge a chain of four false and malicious publications by the appellants, each of which constitutes a cause of action in itself. Counsel referred us to the cases of Williams v. Daily Times of Nig. Ltd supra; Eliochin Nig. Ltd. V. Mbadiwe (1986) 1 NWLR (PT 14) 47 @ 65; Offoboche v. Ogoja Local Govt. (2001) 7 S.C. (PT 11) 107 among others on the principles guiding award of aggravated damages and urged us to sustain the award as the learned trial Judge followed the relevant principles in his assessment.

In his reply brief, Prof Osipitan for the appellants argued that the cases relied upon by the respondent were cases in which general damages were claimed and awarded, unlike the instant case where the appellant claimed only aggravated and exemplary damages. Counsel then cited some cases, including Rotimi Williams v. Daily Times Ltd supra relied upon by Mr Balogun, to show when aggravated damages would be awarded, pointing out that even Chief F.R.A. Williams with all his legendary status at the bar was awarded only N100,000 in his newspaper libel case against Daily Times Ltd in Williams v. Daily Times Ltd supra. Besides the foregoing, I am afraid, all other arguments in the said reply brief of learned silk, which brief is almost as voluminous as his main brief of argument for the appellants, is a rehash of the arguments in his said main brief of argument. A reply brief, with due respect to learned silk, as rightly observed by Mr Balogun at the hearing of the appeal, is not and cannot be used to re-argue issues already argued in the main brief; its use is to reply to new issues raised in or arising from the respondent’s brief that the appellant had not argued before.

Resolution of issue(s)

Like I did with issue 1, I shall here again tackle separately the twin-issues raised by the appellants’ counsel of (1) whether aggravated damage was proved and/or ought to be awarded at all and (2) whether the award of N2b as aggravated damages was not excessive in the circumstances.

(a) Proof and propriety of award of aggravated damages.

The argument of Mr Osipitan for the appellant here can be reduced to this:

(i) That since damage to reputation and injury to feelings is the basis of award of aggravated damages, the respondent ought to have personally testified to his damaged reputation and how the appellants’ conduct, that is, the publications in issue, injured and aggravated his feelings of dignity and self-esteem, and his failure to do so is fatal to his claim.

(ii) That for the foregoing reason that the respondent did not prove the ‘aggravated damages’ specifically claimed by him in his action, and since there is no endorsement of general damages in his writ or statement of claim, the lower court ought to have dismissed his case.

(iii) That the respondent ought to, but failed to plead particulars of the damage to his reputation and feelings to ground a claim for aggravated damages and his failure to do so is again fatal to his claim.

With due respect to the learned silk, it does not seem to me that any of these three grounds of his argument is sustainable. I give my reasons as follows:

a. Purported need for the respondent to personally testify to prove damage to his reputation and injury to his feelings

With respect to the first aspect of this complaint of a so-called duty on the respondent to prove damage to his reputation, I have already said there is no such duty on a claimant in a libel action, because the law presumes damage. In fact the law of libel is hedged around by presumptions all in favour of the claimant; and as Oputa J.S.C. of blessed memory said in Bozin v. State (1986) 2 Q.L.R.N. 69 @ 78 [also in (1985) 2 NWLR (PT 8) 465] “….. one does not set out to prove what is presumed in his favour.”

Coming specifically to the learned senior counsel’s complaint that the respondent ought to have testified to his injured feelings, it should be pointed out that, like damage to reputation earlier discussed in this judgment, there is also a presumption of injury to claimant’s feeling once it is proved that libelous material was published of and concerning him/her. This is again confirmed in McGregor on Damages, 18th Edition, where, commenting on injury to feelings as a head of damage, the learned authors said at Para. 39-030:

In addition, the injury to claimant’s feelings is taken into account; this is assumed and little therefore is said about it.

The learned authors of Tort Law: and Materials, 3rd edition, Professor Mark Lunney and Ken Oliphant also drove this point home when discussing award of damages in defamation cases, by saying, at p.761, that:

The award reflects not only the claimant’s loss of reputation but also injury to his or her feelings; like loss of reputation, this is generally presumed to result from the defamation and need not be specially pleaded.

Emphasis mine.

I shall only add that it is even preposterous to suggest that the feelings of dignity and self-esteem of a man against whom libelous imputations (in this case serious corruption) were made may not have been injured or hurt and so he needs to personally tell the court so on oath from his mouth before it can be convinced that he suffered such injury. In any case, and as earlier said, six claimants/respondents in the libel case of Cross River Newspaper Corp. v. Oni & 6 Ors (1995) 1 NWLR (PT 371) 270, like the present respondent, did not testify at all to prove injury to their feelings yet the argument that their failure to so testify was fatal was roundly rejected/dismissed and the award of damages in their favour upheld by the Supreme Court. That is the position of the law: injury to feelings of the claimant in a libel action, like damage to reputation, is assumed once the libelous publication is proved. A good example on this point is the case of Fielding v. Variety Inc (1967) 2 Q.B. 841. There the defendants published in their journal internationally read in the theatre world that the plays staged in the theatres of London and New York by the claimant, a celebrated impresario, were a “disastrous flop”. When their error was pointed out to them, they refused either to withdraw or apologise. However, the fact of the success of the London production continued to speak for itself and the court considered that even American producers, if they remembered the article, would know that it was quite untrue. On appeal, it was said, per Salmon L.J. thus:

“It seems fairly obvious to me that the article cannot have had any serious effect upon Mr Fielding’s reputation. Nevertheless he is entitled to be compensated … for the anxiety and annoyance which he very naturally felt at the time.”

Interestingly, Fielding’s case was referred to with approval by Ogbuagu J.S.C. in Oduwole v. David-West (2010) ALL FWLR (PT 532) 1643 @ 1669 on the failure to apologise as increasing injury to plaintiff’s feelings. In fact in Oduwole, His Lordship further observed that, the fact that the defendants sought a relief in the Supreme Court seeking a considerable reduction of damages awarded against them by this Court is evidence that they were not remorseful in the matter. I am tempted to feel the same way -lack of remorse- as regards these appellants’ continued argument of absence of damage to respondent’s reputation and injury to his feelings as a result of their libelous publications.

I should further point, on the presumption of injury to feelings, that the Evidence Act, 2011 in Section 167 also enjoins the court to presume any fact which it deems likely to have happened having regard to the common course of events and human conduct etc. by its provisions:

“167. The court may presume the existence of any fact which is likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business; in their relationship to the facts of the particular case…”

So, from any angle one may choose to look at this complaint of the appellants, one can only arrive at the inescapable conclusion that it is unsustainable.

b. Issue of respondent’s failure to specifically claim general damages and whether it has any effect on the award of aggravated damages.

Professor Osipitan’s argument for the appellants here is that since general damages were not claimed and, in his view, aggravated damages were not proved, the respondent’s action should have been dismissed. The learned silk was very passionate on this issue and pressed it with gusto even at the hearing. In paragraph 2.10 of his reply brief, he even dismissed as inapplicable, all the cases cited by Mr Balogun on award of damages in his brief of argument, saying that unlike those cases where general damages were claimed and awarded the plaintiffs, in this case the only head of damages claimed and awarded was aggravated damages of N2b and consequently the respondent, who did not claim general damages and was not awarded general damages in the court below, is estopped from relying on cases decided on the basis of an endorsed claim for general damages. In fact, the trend of learned senior counsel’s argument suggested that what is called ‘aggravated damages’ is so different from general damages (like exemplary damages is) that if a claimant claims aggravated damages and does not succeed in fitting his claim squarely into the legal pigeonhole, so to say, specified for ‘aggravated damages’ he cannot be granted any damages at all and his case should be dismissed. Counsel invoked in support of his argument, among others, the cases of Rookes v. Bernard (1964) 1 ALL E.R.367 and Williams v. Daily Times supra even as in the latter case, contrary to his argument, only aggravated and exemplary damages, and not general damages, were claimed by Chief Williams.

Again I am afraid this argument is, with due respect, a misconception of the true legal position, for as it was said per Obaseki J.S.C. in Eliochin Nig. Ltd v. Mbadiwe (1986) 1 NWLR (PT 14) 47 at 67 para E-F, “it was not possible to say there was a dividing line between them [general damages] and aggravated damages.” Indeed, the object of both aggravated and general damages is compensatory and that is how they are all known, i.e. compensatory damages: their object collectively, in a defamation claim, being to compensate the claimant for the damage caused to his reputation and injury to his feelings by the defendant’s defamatory utterance – that is as opposed to exemplary damages which are punitive. The only difference in the award of general damages and aggravated damages is that in the latter, that is aggravated damages, the court in awarding damages takes into account the malice and bad motive of the defendant which may have increased or “aggravated” the claimant’s feelings of hurt and distress and so awards higher damages, traditionally referred to as ‘aggravated damages’, to compensate for that. Again, I refer to Winfield and Jolowicz 18th Edition at Para 22-8 where, discussing Aggravated and Exemplary (or Punitive) damages, it is said:

The injury to feelings and distress may, however, be increased by the bad motive or wilful behaviour of the defendant and it is then possible to make a corresponding increase in the award as, in traditional terminology, an “aggravation” of damages. Such aggravated damages, unlike exemplary damages, are compensatory in nature.

Discussing this relationship of general and aggravated damages as both compensatory, Clerk & Lindsell on Torts, 16th edition had this to say at Para. 21-168:

Aggravation. General damages may be aggravated by the evidence of the circumstances of the publication, of the motive and conduct of the defendant with reference thereto, and of the effect which it has actually produced. These aggravated damages are still compensatory in nature and should be distinguished from exemplary damages, the purpose of which is punitive.

I note, too, that in Afribank (Nig.) Plc. v. Onyima (2004) 2 NWLR (PT 858) 654 @ 683 para A-B, this Court, per Nzeako J.C.A. (with the concurrence of her brethren Aloma M. Mukhtar and Amiru Sanisu JJ.CA, as their lordships then were) described the epithet ‘aggravated’ as an adjective (which it rightly is) when attached to the noun damages.

In any case, it is not the law that once a claimant fails to specifically claim general damages his/her case must be dismissed even if he/she made out a case for the award of such damages. This court as a court of justice is bound to ensure that justice is not only done but is seen to have been manifestly done (see Falomo v. Banigbe (1998) 7 NWLR (PT 559) 679 @ 702 para A-B, per Iguh J.S.C.) and will therefore grant him/her the damages proved by him/her. That is the position even where such claimant claims no compensatory damages at all but only exemplary (punitive) damages. That was the decision of the Supreme Court in Eliochin Nig. Ltd v. Mbadiwe (1986) 1 NWLR (PT 14) 47. In that case three claimants sued the respondent, their landlord, for trespass to their goods and premises but claimed only exemplary damages. The trial court dismissed their case on the ground that they failed to establish their right to sue the defendant for trespass. On their appeal, this court agreed with them that they made out their case for trespass, but held that going by the statement of the law in Rookes v. Bernard supra, their case ought to fail because they claimed only exemplary damages and not general damages that was the appropriate head of damage. This court accordingly dismissed their case even as their lordships expressed their regret for what they thought was the harsh position of the law. Undaunted, the claimants further appealed to the Supreme Court and made this court’s aforementioned reason for refusing them damages as the only issue on appeal- as properly captured by Aniagolu J.S.C. in his lead judgment thus at p. 55 para A-D:

“Counsel for the appellant [Chief F.R.A. Williams] in his brief, has condensed the entire grounds of appeal into a narrow “issue for determination” (and the only issue in the appeal) to be

“Whether a plaintiff who claims exemplary damages in circumstances in which that type of award cannot be made must have his action dismissed in limine.”

having regard to the finding of the Court of Appeal that

“In the result, although we are of the view that a case for damages might have been made out for the 1st and 2nd or 3rd plaintiffs, we are, regretfully, unable to award any general damages because no case for the award has been made on the pleadings, the evidence and the law. In the result, the appeal fails and is dismissed.

In other words, where in this country a party has claimed exemplary damages and has not proved special circumstances entitling him to exemplary damages but has proved nominal or general damages, can he receive nominal or general damages or does the decision of the House of Lords in England in Rookes v. Bernard (1964) A.C. 1129 preclude the party from receiving nominal or general damages?

His lordship, with the concurrence of his learned brethren Obaseki, Uwais, Kazeem and Oputa JJ.SC., answered the question as follows at p 61-62 para H-C:

“It has to be noted, in any case, that Rookes v. Bernard did not decide that where a plaintiff claims exemplary damage and is unable to prove the same he cannot be awarded nominal damages where the liability of the defendant to damages has been established. It does not seem to me right and just that a plaintiff’s claim should be dismissed in the entirety merely because he has claimed a larger sum than the court considers he deserves. The Court of Appeal held that:

‘a case for damages might have been made out’

But they could not award general damages

‘because no case for the award has been made on the pleadings, the evidence and the law’

That could not be an accurate assertion. On the pleadings admitted by the defence, the 2nd and 3rd plaintiffs averred that in their absence the defendant went into the premises and removed their goods without their authority. In evidence, the 3rd defendant swore that was so. In Law, such forcible interference with their goods was a trespass entitling them to some damages. As Chief Onyiuke has conceded – in my view, rightly – the law presumes nominal damages. The plaintiffs clearly were entitled to an award of damages.

Following the procedure adopted by this Court in Ayodele James (Trading under the name and style of Ajileye & Sons) v. Mid-Motors Nigeria Co Ltd (1978) 11 & 12 S.C. 31 @ 74), I would allow this appeal and hereby allow it. The judgment of the High Court and the Court of Appeal are hereby set aside and in their place judgment is hereby entered against the defendant on the issue of liability.”

The apex court consequentially ordered that the case be sent back to the trial High Court of Lagos State for rehearing ‘on the issue of damages only’ in favour of the claimants/appellants and its assessment.

So, the long and short of it is that, without any prejudice to the complaint against the quantum of the award, it will not be proper for this court to set aside the award of damages in its totality simply because the respondent only claimed aggravated damages and not general damages as suggested by learned senior counsel; if the respondent has made out a case for damages, which I think he undoubtedly did, this court is bound to award him the damages he is entitled to, following Eliochin’s case. That, I think, is also the essence of the provisions of Section 15 of the Court of Appeal Act 2004 and Ord. 19, R. 11 of the Rules of this Court.

Now, I have earlier said what the court considers in awarding aggravated or increased damages is the malice and bad motive of the defendant in making the publication in issue which may have “aggravated” the claimant’s feelings of hurt and distress. This, counsel are all agreed too when they both invoked the case of Chief F.R.A. Williams v. Daily Times of Nig. Ltd and particularly called in aid the dictum of Obaseki J.S.C. where His lordship said:

“Aggravated damages which the Judge awarded and which Ademola J.C.A. did not avert to, might result out of malevolence on the part of the tortfeasor, spite by him or just the manner of committing the wrong which injures the plaintiff’s proper feeling of dignity or pride.”

I should add that the factors evidencing malice and aggravate damages are so varied that they are incapable of being all captured in a pleading, again contrary to the suggestion of learned silk that they must be all captured and particularized in the statement of claim. In fact, some of these aggravating factors include what may only relate to how the defendant pleads his/her case in his/her statement of defence while others may only stem from the manner the trial is conducted by him/her, both of which postdate the filing of the statement of claim and so cannot be pleaded there talk less of being particularized in it. These multifarious circumstances that could aggravate damages are stated by McGregor on Damages thus at Para. 39. 043:

Evidence to prove malice in aggravation of damages.

Malice may be shown by the defendant’s conduct generally, but there are two particular ways in which it has come to be shown: by other derogatory statements made of the claimant by the defendant and by the defendant’s persistence in the accusation, such persistence being either by way of an unreasonable plea of justification or by lack of any, or any adequate, apology.

Halsbury’s Laws of England 4th Edn, Vol 28 was even more detailed in enumerating these aggravating circumstances. It listed them thus:

(ii) Factors tending to increase or aggravate Damages

Para 237. Manner of publication and extent of circulation.

The plaintiff may prove the manner of publication, with a view to increasing the damages, even if the defendant has admitted the fact of publication. The extent of publication, in terms both of the number of copies distributed and the geographical area within which the distribution takes place, and of the nature of the audience, are always relevant. Generally, the damages will increase with the circulation of the libel, although not necessarily in direct proportion to it.

Para 238. Defendant’s actual malice.

The defendant’s improper motives in publishing the words complained of, and in particular whether he was actuated by express malice, are matters which the jury may properly take into account as aggravating damages. The plaintiff may tender in evidence any words or acts of the defendant, whether before or after the publication, which tend to show his state of mind at the time of publication.

Para 239. Defendant’s subsequent conduct.

Whether or not the defendant’s words or actions between the dates of publication and trial are such as to indicate malice at the time of publication, they may also be relevant as factors aggravating damages. For example, repetition of a published libel, or failure to contradict it, may have this effect.

Para 240. Failure to apologise.

Although a defendant’s failure to apologise is not normally evidence of actual malice, it may in some cases be a factor which can properly be placed before the jury as tending to aggravate the damages.

Para 241. Justification.

The fact that the defendant has entered a plea of justification, and has abandoned it before trial, or supported it by evidence but has failed to prove it, or has neither supported nor abandoned it, may properly be taken into account as tending to increase the damages. The same applies to any persistence in the charge by the defendant, although not amounting to a justification, for example, cross-examination of the plaintiff with a view to obtaining admissions without calling direct evidence of justification.

Para 242. Conduct of defendant’s case.

The general principle that, in assessing damages, the jury may take into account the conduct of the defendant at all material times, extends to his conduct at the trial itself and the conduct of his legal representatives there on his behalf. For example, the damages may properly be increased to take into account a course of cross-examination which suggests that the plaintiff was in fact guilty of a charge of which he had been acquitted, or which is insulting, offensive and ill-founded.

Most or all of these features exist in the appellants’ case/conduct and are pleaded extensively by the respondent where they are capable of being included in pleadings. For instance, the offensive publications – four in number and published in very quick succession too, apparently to keep the issues hot and fresh in the minds of the public as the scandal of the day – were mostly put on the front pages of appellants’ newspaper and further sensationalized and given extra prominence with screaming headlines as either the main news item of the paper – with some as pointed out earlier, printed with special colours like red as in the mast head of the paper, and with blue in others – to attract attention. They were relentless in their publication, which covered four editions, they also admitted the paper had a wide circulation and even accessible on its website in the internet; they refused to render any apology even when the respondent’s solicitors drew their attention to the falsehood in their publications and specifically asked for a retraction and apology; instead of complying with the respondent’s solicitor’s request, they rather continued further publications and, when sued, put up a defence of justification in paragraph 4 of their statement of defence, insisting that the “the story complained of by the claimant is true in every material respect and put the claimant to the strictest proof of any assertion to the contrary thereof”. As if that was not enough, in paragraph 17 of their same statement of defence they derisively dismissed the respondent’s claim with the worst epithets possible – misconceived, frivolous, speculative, unfounded, unwarranted, calculated to harass and embarrass the defendants – and urged that it should be dismissed with substantial costs. They even caused their staff to depose to a witness statement reaffirming the plea of justification including their contumelious dismissal of the respondent’s case as frivolous and unfounded and so worthy of dismissal with substantial costs. At the trial, they neither proved their defence of justification or their insulting words in paragraph 17 nor withdrew them, which action on its own alone is a matter that aggravates damages as shown earlier. In Simpson v. Robinson (1848) 12 Q.B. 511 where the defendant pleaded justification but gave no evidence in support of it at the trial, Lord Denman C.J said at 513-514 that:

“The defendant’s conduct in putting a justification on the record which he does not attempt to prove, and will not abandon, may be taken into consideration as proving malice and aggravating the injury.”

I have no doubt in my mind that this was a proper case for the award of aggravated damages and the lower court was right in awarding them.

Let me at this juncture also pause to say a word or two on the defences of justification and fair comment on a matter of public interest which the appellants pleaded but never tried to make out. I know that it is not contended by the appellants in this appeal that they made out those defences or that the defences avail them. I nevertheless deem it necessary to chip in a word on them (1) in the light of the common ground that the monthly N1b Council funds deduction issue, which the appellants sensationalized in their publications with an obvious intention to ridicule and scandalize the respondent, initially emanated from the National Union of Local Government Employees of Ekiti State (NULGE), and (2) the appellant’s plea that that issue and the other issue of illegal withdrawal of huge sums of money from the coffers of Ekiti State by the respondent to bribe Justices of the Supreme Court as well as the alleged petition by PDP were matters in the public domain and so of public interest at the time which they could validly comment on. Neither of these defences, I am afraid, is available to the appellants. In fact, by putting the defence of justification on record, the appellants, like I have pointed out, rather aggravated damages. First, on the plea of justification and especially as it relates to the N1B illegal deduction story the appellants said emanated from NULGE, the position of the law is properly stated by Bullen and Leake and Jacob’s Precedents of Pleadings, 12th Edition at p. 1179 as follows:

A justification of the libel or slander on the ground of truth must be pleaded specially. It should not be pleaded without good reason to expect that it will be proved. It is the duty of counsel not to put a plea of justification on the record unless he has clear and sufficient evidence to support it (Associated Leisure Ltd v. Associated Newspapers Ltd [1970] 2 Q.B.450, per Lord Denning M.R. at 456). If it is pleaded upon insufficient grounds, the fact of the defendant’s thus persisting in the charge is evidence of malice and should be taken into account in estimating damages (Warwick v. Foulkes (1844) 12 M & W. 508).

A plea of justification must be strictly proved at the trial. It is no defence that the libel had previously been published by another. That the defendant at the time of publishing it stated the source from which he received it, and then believed it to be true, is also no defence.

Emphasis mine.

As for the defence of fair comment, it is also important that the publisher gets his basic facts right and be ready to prove them. Here I wish to quote the law as stated by Lord Denning M.R. in London Artists v. Littler (1969) 2 QB 375 thus:

“In order to be fair, the commentator must get his basic facts right. The basic facts are those which go to the pith and substance of the matter: see Cunningham-Howie v. Dimbleby (1951) 1 KB 360,364. They are the facts on which the comments are based or from which the inferences are drawn – as distinct from the comments or inferences themselves. The commentator need not set out in his original article all the basic facts: see Kemsley v Foot (1952) AC 345; but he must get them right and be ready to prove them to be true. He must indeed afterwards in legal proceedings, when asked, give particulars of the basic facts: Burton v Board (1929) 1 KB 301; but he need not give particulars of the comments or the inferences to be drawn from those facts. If in his original article he sets out basic facts which are themselves defamatory of the plaintiff, then he must prove them to be true: and this is the case just as much after Section 6 of the Defamation Act, 1952, as it was before. It was so held by the New Zealand Court of Appeal in Truth (NZ) Ltd v Avery (1965) NZLR 274, which was accepted by this court in Broadway Approvals Ltd v. Odhams Press Ltd. (1965) 1 WLR 805. It is indeed the whole difference between a plea of fair comment and a plea of justification. In fair comment he need only prove the basic facts to be true. In justification he must prove also that the comments and inferences are true also”.

Emphasis mine.

I repeat none of these two defences availed the appellants.

That having been said, let me add, too, that I find the case of Williams v. Daily Times cited by both parties very useful in some material respects because of some (and I mean just some) similarities in the facts of that case and this one. In the first place, like this one, Chief F.R.A Williams v. Daily Times Nigeria Ltd was also a libel case arising from publications by a newspaper, the Evening Times, published by Daily Times of Nigeria Ltd. But in Williams, the offensive publications were in two editions of the defendant’s evening newspaper (not FOUR as in the instant case). Again like the instant case, Chief Williams only claimed aggravated and exemplary damages – he did not claim general damages – and, again like the instant case, the trial court said he was not entitled to exemplary damages. It however held that the defendants aggravated damages by the manner of the publications where, even the story – though lifted from a writ of summons actually filed in court in which some persons sued Chief Williams for allegedly losing their late father’s Will that was said to have been prepared Chief Williams for him, and/or in not seeing to it that it was executed before the testator’s death – was sensationalized and published in a manner that tended to ridicule Chief Williams. Like this case, the story in Williams was made front page news and, like this one again, the defendants ignored Chief William’s demand for apology. At the trial, however, and quite unlike this case, the defendants in Williams did not put up a plea of justification, they rather avowed their respect for him and only pleaded privilege as the publication was based on a writ filed in court though the case had not been mentioned in open court. That defence, that is, whether privilege covered and extended to court processes duly filed in court but had not yet come up for hearing in open court was the subject of a huge debate between Chief Williams and Chief G.O.K. Ajayi for Daily Times Ltd in this court: See Daily Times of Nigeria Ltd v. F.R.A. Williams (1986) 4 NWLR (PT 36) 526. At the end of the day this court, following the statement of the law in Gatley on Libel and Slander 11th Edition, Winfield and Jolowicz on Tort and Carter and Ruck, held that privilege only attached to proceedings conducted in open court and not to processes merely filed in court which had not come up in court. This court then went on to reduce the aggravated damages awarded by the trial court from N100,000.00 to N60,000.00. Chief Williams appealed to the Supreme Court and persuaded it to restore the aggravated damages of N100,000 awarded him by the High Court: see Williams v. Daily Times of Nigeria Ltd (1990) 4 NWLR (PT 124) 1; (1990) LPELR- 3487.

It is noteworthy that as less heinous and relatively milder the aggravating circumstances of that case where (including the fact that there was no internet in 1986 to publicize the libelous publications in that case to the whole world as it is now and in the instant case), the validity of the award of aggravated damages was never an issue in Chief Williams all through the three courts that case traversed.

Surely, aggravated damages were proved here.

And that should take me to the quantum of damages which the lower court assessed at N2Billion in favour of the respondent.

Assessment/quantum of damages

“As a matter of general principle, an appellate court would not interfere with an award of damages by a trial court simply because faced with a similar situation and circumstance it would have awarded a different amount. An appellate court will however interfere with an award by a trial court where it is clearly shown that it acted upon wrong principle of law, or that the amount awarded is outrageously high or ridiculously low; or that the amount was an entirely erroneous and unreasonable estimate having regard to the circumstances of the case, see Zik’s Press Ltd v. Ikoku (1951) 13 WACA 188; Williams v. Daily Times (1990) 1 SC 23; (1990) 1 NWLR (pt.124) 1 at 49, 55; Oduwole & Ors. v. Prof Tam David-West (2010) 3-5 SC (pt. 111) 183 at 195, (2010) 10 NWLR (Pt. 1203) 598.

See also British Airways v. Atoyebi (2014) 13 NWLR (PT 1424) 253 @ 287-288 & P. 289 (S.C.).

Here appellants’ complaint is that the aggravated damages of Two Billion Naira awarded the respondent by the lower court is excessive, unprecedented in this country, punitive and just intended to unjustly enrich the respondent and run the appellants out of business. I think their criticism is justified. Two Billion Naira damages in the circumstances is quite on the very high, if not even outrageous, side. It is not only outrageously excessive as aggravated damages but even excessively punitive as exemplary damages, assuming that was what the lower court meant to do even as it refused to award the exemplary damages claimed. In reality, the lower court seems to have given (and extremely generously too) with the left hand what it had purported to have denied the claimant with the right hand. With this award, the respondent may well decide to go into immediate retirement and live the life of a billionaire (at least in Naira terms) for the rest of his life, all because of a libel published against him which the same court has incidentally even ordered that the defendants/appellants publicly apologise to him and even retract in three prominent newspapers. Even if the respondent were to be rendered paraplegic in an accident case it is doubtful if he would get this huge sum the court awarded him for defamation of character. I know that damages in defamation actions are ‘at large’ and involves the exercise of discretion by the court; but that discretion, like all exercises of discretion, must be judiciously and judicially exercised. The competing cases of the parties to justice (including the issue of award of damages) must be put in the imaginary scales of justice and weighed in exercising the discretion society entrusts the judge with. The instant award does not seem at all to have been so scaled. In fact it has more of the feel of a jackpot and/or windfall than an award by a court of justice in a libel case. In the libel claim of John v. MGN Ltd (1997) Q.B. 587 involving the famous, Queen of England knighted British musician Sir Elton John as claimant, Sir Thomas Bingham M.R., confronted with what he described as a “manifestly excessive” award in favour of Sir Elton John by a libel jury and other outrageous awards in libel cases, admonished that:

“Any legal process should yield a successful plaintiff appropriate compensation; that is, compensation which is neither too much nor too little. That is so whether the award is made by judge or jury. No other result can be accepted as just. But there is continuing evidence of libel awards in sums which appear so large as to bear no relation to the ordinary values of life. This is most obviously unjust to defendants. But it serves no public purpose to encourage plaintiffs to regard a successful libel action, risky though the process undoubtedly is, as a road to untaxed riches. Nor is it healthy if any legal process fails to command the respect of lawyers and layman alike, as is regrettably true of the assessment of damages by libel juries.”

His lordship added later in the same judgment that:

“The conventional compensatory scales in personal injury cases must be taken to represent fair compensation in such cases unless and until those scales are amended by the courts or by parliament. It is in our view offensive to public opinion, and rightly so, that a defamation plaintiff should recover damages for injury to reputation greater, perhaps by a significant factor, than if that same plaintiff had been rendered a helpless cripple or an insensate vegetable. The time has in our view come when judges, and counsel, should be free to draw the attention of juries to these comparisons.”

I am in complete agreement with both statements.

In the celebrated case of Rookes v. Bernard supra in which the statement of the law on the principles for the award of exemplary and aggravated damages by Lord Devlin has become the benchmark in cases of tort, especially libel, it was said, at p.413 para H, that:

“Insult offered and pain given are matters for compensation and not for punishment.”

That is not to say that punitive damages cannot be awarded for newspaper libel: they can be awarded, especially where it is pleaded and proved that the defendant intended to make a profit from the false publication which he believed would far outweigh whatever damage that would be awarded against him in a libel action. See Rookes v Bernard supra. Exemplary damages were so awarded in John v. MGN supra, a newspaper libel case like this one. What I am here concerned with is the amount awarded as damages. In the course of writing this judgment, I tried to check if any court in this country has made a similar award in a libel action for me to use as a guide. Unfortunately, I never came across even one case where anything near even a quarter of a Billion Naira, let alone Two Billion Naira, was awarded for libel.

Having said that, I do not also agree with the suggestion of learned senior counsel for the appellants to use the One Hundred “Thousand” Naira (N100,000) awarded to Chief Rotimi Williams of almost thirty years ago in 1986 by the trial High Court of Lagos and upheld by the apex court in 1990 as a guide. If I must use it at all, it has to be the real value of that sum of money in today’s Naira. I am not an economist but I do know that it is a common saying these days by those who should know, that about N10,000.00 in 1986 could buy one a new Peugeot car. If that is used as a guide, N100,000 of 1986 could have very easily bought several Peugeot cars. A new Peugeot car these days costs some millions of Naira, which means N100,000 of 1986 could be worth several millions of Naira today. It is in that sense of the real value today of the damages awarded Chief Rotimi Williams then that I will apply Williams v. Daily Times Ltd if at all. That is even as I have earlier observed, the damage to Chief Williams was not aggravated in the manner the appellants did in the instant case not only in the allegations in issue, the manner and extent of publication but also in further adding insult to injury by asserting that their publications were true in all material respects and the respondent’s action was frivolous and worthy of dismissal with substantial costs.

A successful claimant in a libel action must be properly compensated. Incidentally, in the same case of Elton John v. MGN Ltd supra, Bingham M.R., after making the pronouncements earlier referred to here, also set out the factors that affect the assessment of compensatory damages in libel actions thus:

“The successful plaintiff in defamation is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation; vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation the most important factor is the gravity of the libel; the more closely it touches the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damages than a libel published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libelous publication took place. It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff’s feelings by the defendant’s conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way. Although the plaintiff has been referred to as ‘he’ all this of course applies to women just as much as men.”

These same principles were also enumerated in Guardian Newspapers Ltd & Anor v. Ijeh (2011) 10 NWLR (PT 1256) 574, with Fabiyi J.S.C. saying at 602-603 that:

“This court has developed certain principles which should serve as guide in the determination of what is adequate damage in libel cases. From the decisions in His Highness Uyo 1 v. N.N.P.L. (1974) 6 SC 103; (1974) NSCC 304; Offoboche v. Ogoja Local Government (2001) 7 SC (Pt. 111) 107, (2001) 16 NWLR (pt.739) 458; the following facts ought to be taken into consideration:

1. The award must be adequate to repair the injury to the plaintiff’s reputation. This does not require proof of pecuniary loss.

2. The award must atone for the assault on the plaintiff’s character and pride which were unjustifiably invaded.

3. It must reflect the reaction of the law to the impudent and illegal exercise in the course of which the libel was unleashed by the defendants.

4. It must also take into account the loss of social esteem and the natural grief and distress to which the plaintiff must have been put.

5. The fact that the defendants did not show any remorse and did not care whether or not the plaintiff’s reputation or feeling was injured.

6. The social standing of the plaintiff must also be considered.

7. The rate of inflation which has adversely affected the value of the national currency.

I have earlier stated in the clearest terms that the conduct of the appellants both from the manner of their publication, their stance in their statement of defence and the conduct of their case shows their utter contempt for the feelings of the respondent. The respondent is not just a politician – a career in which integrity is key – he was at the material time also a Governor of his State. The appellants not only alleged that he corruptly enriched himself with billions of Naira at the expense of the people that elected him to serve them, he was also accused, all without proof, of dipping his hands into the public till entrusted into his care by his electorate to corrupt Justices. The appellants refused to apologise to him even when he brought to their notice the falsity of their allegations; instead they claimed their allegations were true, yet they failed to substantiate them at the trial and never even abandoned them. These libelous publications were made in quick succession, sensationalized and given the widest publicity possible by the appellants in several editions of their newspaper. It is on record, and a matter of public knowledge too, that since the said publications the respondent has presented himself for re-election as Governor of his state and lost. How much these allegations of corruption which the appellants are still contesting weighed with the electorate in not entrusting him again with their affairs will remain a matter of conjecture. Whichever way, the libel struck at the very core of his personal integrity and good name. A person’s good name is invaluable. The bard William Shakespeare recognized this truism several centuries ago in his famous quote in Othello Act 3, scene 3, 155-161 saying:

“Good name in man and

woman, dear my lord,

is the immediate jewel of

their souls.

Who steals my purse steals trash;

……..

But he that filches from me

my good name

Robs me of that which not

enriches him,

And makes me poor indeed.”

To be sullied in that good name, as the appellants did to the respondent and in the manner they did, should surely attract substantial damages. The current ceiling for non-pecuniary losses in libel cases even in England, according to McGregor on Damages, 18th edition, para 39.027’9739.028, is ?200,000. That still translates to a ’91mere’91 N48m ’97a very far cry from N2,000,000,000’97 at an exchange rate of N240 to a ?1. And that is even in a far bigger economy where the per capita income is also much higher than is obtainable in Nigeria. Besides, there is still a tendency in our courts to be relatively conservative in awarding damages. I guess that is again to reflect the state of our economy, just as it could well be a judicial policy as we are not bound by the judicial policies of any other country. Typifying this relative conservatism is the case of Guardian Newspapers Ltd & Anor v. Ajeh supra. There the claimant/respondent, a pastor, was accused by the appellants in a column of their newspaper, the Guardian, of being a thief and dishonest person. He claimed N10,000,000 (Ten Million Naira) damages for libel but was awarded N500,000. That amount was upheld on appeal by this court and the apex court.

In Oduwole and 3 Ors v. Professor Tam David-West supra, the appellants, in an editorial titled ‘Enough of David West,’ in their Tribune newspaper, falsely and maliciously wrote that the respondent, a former Minister of Petroleum whom the apex court (per Fabiyi J.S.C) described as “an astute social critic with other array of credentials which stand him out as a national and international figure, an outstanding professor at the College of Medicine, University of Ibadan,” was sacked as Minister of Petroleum when in actual fact he was only deployed to the Ministry of Mines and Power. He sued for general damages of N250m but the trial court awarded him only N10,000. He appealed successfully to this court where his damages were reviewed upwards to N300,000. A further appeal to the apex court by the defendants against the damages so reviewed by this court was dismissed, with Ogbuagu J.S.C. even expressing ‘regret’ in his contribution (see p. 1671 para B-E) that Prof David-West “did not claim for exemplary, punitive or aggravated damages,” and further remarking that if he had cross-appealed for an enhancement of even the damages reviewed upwards by this court ‘in all the circumstances of the case’, the Supreme Court “would have been minded to grant the enhancement having regard to the present value of the Naira and the conduct of the appellants.”

Representing an upward shift in this area is the case of Vanguard v. Olafisoye (2011) 14 NWLR (PT.1267) 207 @ 232 which both counsel cited in their briefs. There a columnist of the appellant, the Vanguard Newspaper, wrote falsely and maliciously in his column in one issue (not four as it is here and not in front page too) that the respondent Mr Adebuyi Olafisoye, the Managing Director of Fidelity Bank of Nigeria, whom the writer dubbed a ‘super-rich multimillionaire,’ had run amok and was capable of committing murder and so he should be avoided. Mr Olafisoye claimed total damages of N300,000,000 but was awarded N10,000,000 (Ten Million Naira). That amount was contested in this court as being too high, but was upheld (per the lead judgment of Ogunbiyi J.C.A., as His lordship then was).

Guided by all the above and taking into account all the aggravating features of this particular libel I have repeatedly enumerated above – including the fact that the publications in the instant case were more sensationalist and aggravating than all the cases I have referred to including Vanguard v. Olafisoye and the English case of John v. MGN Ltd -and considering on the other hand, too, that other orders (unchallenged in this appeal) were made in favour of the respondent for the appellants not only to apologise to him but to also retract their allegations in newspapers including their own, which should also go a long way to assuage the respondent’s feelings of hurt and vindicate him in the eyes of the public, I assess the damages suffered by the respondent from the libel of the appellants at Thirteen Million Naira (N13,000,000.00) only. Consequently, it is hereby ordered that the compensatory damages of N2,000,000,000 awarded the respondent against the appellants severally and jointly by the lower court be and is hereby set aside, and in its place the sum of Thirteen Million Naira (N13,000,000) is assessed and awarded in respondent’s favour against the appellants as aggravated damages.

All other orders made by the lower court shall remain valid since they are not the subject of specific attack in this appeal.

The appeal having succeeded in part, parties shall bear their costs.

ADZIRA GANA MSHELIA, J.C.A.: I have had the privilege of reading in advance the draft judgment of my learned brother, Ugo, JCA, just delivered. I agree with his reasoning and conclusion. My learned brother has adequately treated all the issues raised for determination in this appeal. I will only add few words of mine for the purpose of emphasis.

The assessment of damages is within the discretion of the trial Judge who is expected to take into account all the circumstances of the case including the conduct of the appellants. In claim for aggravated damages, the motive and conduct of the defendant aggravating the injury to the plaintiff would be taken into consideration in the assessment of compensatory damages. It is trite law that in order to justify an award of aggravated damages, it is not sufficient to show simply that the defendant has committed the wrongful act complained of. He conduct must be high-handed, outrageous, insolent, vindictive, oppressive or malicious and showing contempt of the plaintiff’s rights or disregarding every principal which actuates the conduct of civilized men. See: ODIBA v. AZEGE (1998) 9 NWLR (Pt. 566) 370, (1998) 7 SC (Pt. 1) 79 and AFRIBANK (NIG) PLC v. SYLVESTER ONYIMA (2004) 2 NWLR (Pt. 858) 654.

In the instant case, the appellants raised the plea of justification but failed to adduce evidence in support of same. Respondent has adduced sufficient evidence to entitle him to the award of aggravated damages. The grouse of the appellants is that the sum of Two billion Naira (N2,000,000,000.00) awarded as aggravated damages for the libel is excessive or too high, and has urged the court to interfere with the award made by the trial court. The Court of Appeal is reluctant to interfere with assessments of damages save in cases where the trial Judge has applied wrong principle or is otherwise clearly wrong. As a matter of general principle, an appellate court would not interfere with an award of damages by a trial court simply because faced with a similar situation and circumstances it would have awarded a different amount. An Appeal Court will however interfere with an award by a trial court where it is clearly shown: (a) that the trial court acted upon wrong principle of law, or (b) that the amount awarded by the trial court is ridiculously too high or too low; (c) that the amount was an entirely erroneous and unreasonable estimate having regard to the circumstance of the case. See: BIODUN ODUWALE & ORS v. TAM DAVID WEST (2010) LPELR-2263 (SC) and WILLIAMS v. DAILY TIMES (1990) 1 NWLR (Pt. 124) 1 at 49.

Having regard to the facts and circumstances of this case, I am of the humble view that this is a proper case for this court to interfere as the award made by the trial court is ridiculously too high. For the above and the fuller reasons contained in the lead Judgment, I also allow the appeal in part and endorse the consequential orders made therein the lead Judgment, inclusive of costs.

AYOBOSE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead judgment prepared by my learned brother Ugo, JCA. In my considered view, the issues for determination of the appeal have been extensively considered in the lead judgment and I am in agreement with the resolution of same.

In the opening or introductory part of the lead judgment, my learned brother said to the effect that the instant appeal raises some interesting issues relating to practice and procedure and assessment/award of damages in libel cases/actions. I cannot agree more.

The position of the law regarding the purpose of pleadings in civil cases tried on pleadings is trite. Also it is clear in law that a defendant can by or in his pleading admit the entirety of the plaintiff’s case as set up in the statement of claim or some part thereof. Any aspect of the case of the plaintiff admitted by the defendant in his pleading requires no further proof. In other words viva voce evidence is not necessary to establish any aspect of the plaintiff’s case that has been admitted by a defendant in his pleading. It is only in a declaratory action that a plaintiff must still call or adduce evidence in aid or proof of his case, irrespective of whether or not the case of a plaintiff or claimant is admitted in the pleading of the defendant. This is against the backdrop of the position of law that declarations are not granted upon admissions or default of pleadings and that a plaintiff seeking for declaration has to succeed on the strength of his case. In other words, the position of the law is that declarations are not granted as of course.

The Respondent in the instant appeal did not claim any declaration whatsoever. So the full consequences of the express or implied admission of every material aspect of the Respondent’s case as set up in that party’s pleading, cannot be avoided by the Appellant as the Respondent actually needed not to have adduced evidence in aid of such admission or admissions. In other words, it is my considered view that given the respective cases of the parties on the pleadings before the lower court and given the position of the law that a claimant in libel case does not have to prove that the statement complained of is false (as the law presume this in his favour), there was actually no need for the Respondent to have adduced any evidence in the instant case talk less of the Respondent being physically present to testify. It was for the Appellant to establish by evidence the good defence it had in respect of the libel in the instant case. See OKOYE v. NWANKWO (2014) NWLR (Pt. 1429) 93. Against the backdrop of all that has been said, it would definitely have been a most perverse decision if the lower court had found otherwise than it did in the instant case having regard to the pleadings of the parties and failure of the Appellant to have adduce any evidence in support of its statement of defence.

As for the quantum of damages awarded by the lower court, I am at one with my learned brother that same is on the high if not even outrageous. And as my learned brother has sufficiently demonstrated that he had recourse to all the parameters or factors that have to be considered in awarded damages in libel cases, I cannot but agree that the damages now awarded in the lead judgment is appropriate for the Respondent.

In conclusion, I too find the instant appeal to succeed in part and also abide by the order relating to costs as made in the lead judgment.

Appearances

Professor Taiwo Osipitan S.A.N. (with him Ayodeji Awobiyide Esq. and V.O. Amire Esq.)For Appellant

AND

R.O. Balogun Esq. (with him I.T. Balogun Esq. and Temitope Onifade Esq.)For Respondent