African Newspaper of Nigeria Limited V. Adamu Ciroma (1995)

LawGlobal-Hub Lead Judgment Report

OKUNOLA, J.C.A.

This is an appeal against the judgment of the High Court of Kaduna State holden at Kaduna in suit No. KDH/KAD/36/90 delivered by Yahaya J. on 19/7/91 in which judgment was entered for the plaintiff/respondent in the sum of N750,000.00 as general damages.

The facts of this case briefly put were as follows: The respondent as plaintiff instituted an action against the appellant as defendant at Kaduna High Court claiming the sum of N2m (Two million Naira) as damages for libel alleged to have been published by the defendant/appellant in the Nigerian Tribune, Newspaper of 19/10/89 in a story headed “Ciroma Benefitted from Societe Generale Shares”. Pleadings was filed and exchanged between the parties. The respondent however denied that he did not plea any innuendo and referred to paragraph 6 of his Statement of Claim as a plea of innuendo. Respondent further contended that there was no evidence that the alleged/published story was originally inserted in Exh. 6 and later removed or deleted from same. The respondent further referred to plaintiff’s witness evidence at page 29 lines 14-18 of the records to show evidence of the words to him.

At the trial, the plaintiff/respondent gave evidence and called a witness while one witness the reporter who filed the story testified on behalf of the defendant/appellant and expressed his regrets for the publication. By consent of both learned counsel to the parties seven documents were tendered from the bar and admitted as Exhibits 1-7 (vide page 26 of the record). After taking addresses of counsel to both parties, the learned trial Judge in a considered judgment entered judgment for the plaintiff/respondent in the sum of N750;000.00 as general damages.

Dissatisfied with this judgment, the defendant/appellant (hereinafter referred to as the appellant) appealed to this Honourable court on eight grounds. From the eight grounds of appeal, the appellant has formulated the five issues for determination in this appeal, with which the respondent agreed. These are:

1. Whether or not the words complained of are capable of conveying a defamatory meaning.
2. Whether or not the words complained of were substantively inaccurate in comparison to the proceedings in the High Court on which the report complained of were based.
3. Whether or not the respondent established malice such that it destroyed the appellant’s defence of privilege.
4. Whether the damages of N750,000.00 (Seven hundred and fifty thousand Naira) awarded is not manifestly too high in the circumstance of the case and arrived at in wrongful exclusion of mitigating factors.
5. Whether the award of sum as large as N750,000.00 is not erroneous in law in view of the court’s finding that the respondent was entitled to Nominal damages and the court’s decision to award Nominal damages.

Both parties have filed their respective briefs of argument. Both counsel to the parties adopted these briefs filed herein on behalf of their respective clients and went further to address us viva voce to highlight some points. Learned counsel to the appellant Mr. Moses Akerele after adopting the appellant’s brief filed on 28/1/94 informed the court that he filed 8 grounds of appeal from which he formulated five issues. He contended that the issues related to the grounds serially except issue 4 which relates to grounds 5, 6 & 7 and issue 5 which relates to ground 4. Learned counsel abandoned ground 8 which was accordingly struck out. Learned counsel further referred the court to a list of 2 additional authorities – Obasuyi v. Ezeigbu (1991) 3 NWLR (Pt. 181) 585 p. 595 in respect of issue No.2 and Barau v. Cubitts (Nig.) Ltd (1990) 5 NWLR (Pt. 152) 630 pages 649-650 in respect of issue No. 5. Learned counsel to the appellant finally urged the court to allow the appeal and set aside the judgment of the lower court and substitute with order of dismissal of action in the lower court or in the alternative to reduce the damages awarded in the lower court to the respondent.

By way of reply Mr. Ahmed Raji leading T.A. Olorishade Esq. for the respondent adopted the respondent’s brief filed on 29/3/94. After adopting the brief, learned counsel to the respondent added the following cases: Okoya v. Santilli (1994) 4 NWLR (Pt. 338) 256 pages 323-324 on issue No. 1; Douglas v. Peterside (1994) 3 NWLR (Pt. 330) 37 p. 52 on issue No.4 and Williams v. DTN (I990) 1 NWLR (Pt. 124) 1 pages 56-57 on issue No.5. Learned counsel to the responder contended that the learned trial Judge did not comply with rules dealing with award of damages as merely stating the law is not enough. Learned counsel to the respondent in the end urged the court to dismiss the appeal. He further urged the court to take the Naira value as at date of judgment and today into consideration to know that there is no basis to disturb the award in the lower court. He cited Douglas v. Peterside (supra) p. 52 paragraphs F – G.

I have considered the submissions of both sides on the issues raised for determination in this appeal vis-a-is the records and the prevailing law. It is intended to give my views on the points raised and canvassed by counsel to both parties.

In this regard I shall treat the issues serially. Since the outcome of issues 1, 2 & 3 will determine the direction of the remaining two issues.

As regards issue No. 1 relating to whether or not the words complained of are capable of conveying a defamatory meaning, learned counsel to the appellant submitted in summary at page II of the appellant’s brief that the words complained of in this libel suit are not capable of conveying a defamatory meaning and ought to have been dismissed at the lower court. According to learned counsel to the appellant in paragraph 4.08 of the appellant’s brief there is no suggestion that the circumstances of the giving were such that the giving was a bribe and that the conclusion of the trial court that the words complained of meant “that the plaintiff abused his office as the Governor of the Central Bank and accepted gratification without capacity” at page 42 lines 21-23 of the records is clearly erroneous. Learned counsel for appellant further contended that learned trial Judge was wrong when he assumed without it being stated in the article that the “giving” occurred when the respondent was Governor Central Bank of Nigeria. Learned counsel to the appellant further submitted that in the absence of any innuendo, the learned trial court was in error when it held that the words complained of in the suit and set out in paragraph 4 of the Statement of Claim are capable of conveying a defamatory meaning.

By way of reply, learned counsel to the respondent in paragraph 4.02 of the respondent’s brief referred to the heading of the article (supra) and the first three lines of the story read together to debunk the appellant’s contention in paragraph 4.08 of his brief saying that the benefit being insinuated in the instant appeal is as objectionable whenever received as receiving same while in office. He contended that the imputation contained or conveyed by the article is the odious thing being complained of. He therefore urged the court to uphold the finding of the lower court that the publication is defamatory.

I have considered the submissions of both learned counsel to the parties on this issue. It raises the poser of what constitutes a defamatory publication or rather when does a publication became defamatory? Libel has publication as one of its 3 constituents. The remaining two being whether the words complained of were published by the defendant and whether the words referred to the plaintiff. See Chief O.N Nsirim v. E.A. Nsirim (1990) 5 SCNJ 174; (1990) 3 NWLR (Pt.138) 285. In the instant case the defendant/appellant conceded the last two ingredients of libel but strongly resisted the words complained of being defamatory. (vide page 33 of the record).

It is trite that in case like this, it is the court that decides in the end whether the words complained of are defamatory see Sketch Publishing Co. Ltd, & Anor v. Alhaji Azeez Ajagbemokeferi (1989) 1 NWLR (Pt. 100) 678 p. 695. The question to determine here is whether the words complained of are defamatory of the plaintiff/respondent.

The learned counsel to the appellant in the above reviewed submission denied this while learned counsel to the respondent confirmed this. The basic disagreement on this issue between both learned counsel is that the conclusions of the learned trial Judge at page 42 lines 21-23 that the words complained of meant that the plaintiff abused his office as Governor of Central Bank of Nigeria and accepted gratification without capacity is erroneous. This was the view of the learned counsel to the appellant. I have gone through the pleadings and evidence contained in the records. This submission was based on the point that innuendo was not pleaded and the words were a conjecture. From the records I observe that the plaintiff/respondent pleaded innuendo at paragraph 6 of his statement of claim but as an alternative which was not pushed. The plaintiff/respondent claimed to be relying on the ordinary and natural meanings of the words complained of (vide paragraph 5 statement of claim). The question to ask is the natural and ordinary meaning of the words complained of set out supra and in paragraph 4 of the statement of claim. To determine this, the guidance of the appellate courts had to be sought. This had been given by the appellate courts in a long line of cases to the effect that –