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 –

the ordinary and natural meaning of the words are to be seen from the eyes of a reasonable man of ordinary intelligence guided by general knowledge and not from the eyes of a person who is fettered by legal rules of construction or forced into an utterly unreasonable interpretation.

See Jones v. Skelton (1963) 1 WLR 1362 pp. 1370-137 I adopted with approval by the Supreme Court in Maurice Dumbo & Ors. v. Stephen Idighoe (1983) 1 SCNLR 29 p.47-48. Applying this principle to the words complained of, given the level of corruption in our body politics as at today, the necessary inference a reasonable man would draw from the words complained of is what the learned trial Judge ended up with. The law is that the appellate court will interfere when finding is a mere conjecture not supported by evidence see Isaac D.O. Ejabulor v. His Highness O.B. Osha (1990) 7 SCN 3 187; (1990) 3 NWLR (Pt.48) I but in the instant appeal the evidence of PW I to the effect that

“He felt disappointed when he read the report, that a person of the calibre of the plaintiff took bribe, and that he felt also that if the plaintiff were to be placed in a position of trust in the future, Nigeria would be misplacing her trust”.

clearly removes the statement from the class of mere conjecture not supported by evidence. In consequence I agree with the finding of the learned trial Judge and hold that the words complained of is in paragraph 4 of the statement of claim in the estimation of an ordinary person without any unusual suspicion is as made by the learned trial Judge restated supra. In the end I hold that the words complained of are capable of a defamatory construction. With the unchallenged evidence of the plaintiff in the records that the words referred to him and the concession of the learned defendant/appellant counsel that the words referred to the plaintiff) respondent, I hold that the words are defamatory of the plaintiff/respondent.

As regards Issue No. 2 as to whether the words complained of were substantively inaccurate in comparison to the proceedings in the High Court on which the report complained of were based, both learned counsel to the parties addressed the court on this issue. Learned counsel to the appellant at page 6 of the appellant’s brief submitted that the gist of the publication in Exhibit 1 is that Dr. Saraki gave some shares in a Bank to the respondent and at that stage they had not reached the stage of cross-examination of the witness to show whether the beneficiaries subsequently accepted or received the shares. Learned counsel concluded that the fact that Exhibit 7 tendered in court showed in the end that the gratification attributed to the witness was false does not render the report in itself unfair and inaccurate (vide Art. 606 Gatley 8th Ed.). By way of reply learned counsel to the respondent submitted at page 3 of the respondent’s brief that the gist of the publication is that the respondent as Governor of CBN benefitted from Societe Generale Bank by taking shares given to him by Dr. Saraki but this is not true as Dr. Saraki never said so as can be seen from pages 2-3 of Exhibit 7 (the High Court proceedings) thus –

“At the Board meeting of 8th March, 1977, I nominated Mr. Kotoye as a Director when we were doing the allotment, I said the 18% be put in his name. IT WAS DONE ACCORDINGLY (emphasis supplied). That was how Kotoye held 18% of the shares. He held the 18% shares all alone.”

The conclusion here is that the gist of the publication in Exhibit 1 is at variance with what is in the court proceedings Exhibit 7 in which same was based thereby rendering the conclusion in Exhibit 1 as untrue. What then is the effect of the defence of qualified privilege in such a situation. The essential element of qualified privilege is reciprocity of interest as the facts relied on by maker must be true since mere belief is insufficient. See Ademola Atoyebi v. Williams Odudu (1990) 10 SCNJ 52; (1990) 6 NWLR (Pt.157) 384. Thus, since the facts relied on by the maker in the instant appeal are untrue, the defence of qualified privilege will not avail the appellant in the instant appeal. See African Newspaper Ltd. v. Coker (1973) 1 NMLR 386 and Bello Oyebola in law of libel and the press by Gani Fawehinmi p. 363; Gatley on libel & Slander 7th Edition paragraphs 612-615 and I so hold.

Issue No.3 touches on whether or not respondent established esto malice such that it destroyed the appellant’s defence of privilege. Both counsel to the parties have addressed the court on this issue. Learned counsel to the appellant at page 7 of appellant’s brief referred to several indicators which established that the appellant was not malicious viz: the approach made to the plaintiff’s solicitors upon the receipt of the plaintiff’s complaint (page 31 lines 17-18 of the records) the publication of the correction titled News update (Exhibit 2) before the institution of the suit, the remorse and apology tendered in court during the proceedings (page 31 lines 21-22). The nature of cross examination coupled with eagerness of the defendant to reach settlement out of court and the fact the appellant being a body corporate and artificial person which lacks the ability to formulate and nurture malicious intentions ascribed to it by the learned trial Judge. By way of reply learned counsel to the respondent contended that the definition of malice – put up by the appellant in paragraph 6.02 of his brief – of being publication made not with the view to the information of the public but from an indirect motive is too restricted while the instances cited as constituting malice are not exhaustive. Learned counsel defined malice to include any unjustifiable intention to inflict injury on the person defamed and is not confined to personal spite and ill-will. This definition has been adopted in Bakare v. Ado Ibrahim (1973) 1 All NLR (Pt. 1) 751 p. 759. Learned counsel to the respondent summarized his earlier submission on page 47 of the records showing malice as the motive of the defendant/appellant as demonstrated by:

. (a) substantial inaccuracy of the report;

(b) the heading which is prominently bold and mentioned the name of the plaintiff first before others, thus reversing the order in Exhibit 7 and

(c) lack of apology.

I have had the advantage of reading the reports carried in Exhibits 3 and 4 the other newspapers which published the events in Exhibit 7 and compared same with Exhibit 1. The reports in Exhibits 3 & 4 are different from Exhibit 1 but are very similar to Exhibit 7 the source they all drew their reports from. The source contained on page 2 of Exhibit 7 from lines 22 read thus:-

“A day or two before that meeting, I decided that those friends and acquaintances that helped me to get the licence I would give certain number of shares.

Among the friends were Mr. Kotoye. Mr. M.O. Shobola who was the then Secretary to the Board, Ibrahim Damuda, another close friend of mine, Alhaji Adamu Ciroma, then the Governor of Central Bank. I decide to give those and others from 2% to 5% ………………….”

From above, it is clear that what Dr. Saraki said in Exhibit 7 was that he intended to give the shares to the plaintiff/respondent and other named persons. He never said that he gave the’ shares to the plaintiff and the other named persons which makes Exhibit 1 inaccurate as compared to Exhibits 3, 4 & 7. I agree with the learned trial Judge at page 47 of the records that the facts of the substantial inaccuracy of the report in Exhibit 1, the heading given to the report in Exhibit 1 coupled with the absence of apology after cross-checking and finding they carried erroneous report against the plaintiff/respondent go to show that the defendant/appellant was not nurtured by fairness but by malice and I so hold.

It is intended to take issues 4 & 5 dealing with the issue of damages together. Both learned counsel to the parties have addressed the court on this issue of damages. Learned counsel to the appellant submitted in summary at page 11 of the appellant’s brief that the award of N750,000.00 made by the trial court is excessive, was arrived at on wrong principles of law, failed to give effect to the decision of the court to award nominal damages and to take into consideration the remorse shown by the appellant which is a mitigating factor. By way of reply, learned counsel to the respondent on pages 6 & 7 of the respondent’s brief submitted that the lower court rightly rejected the apology tendered by PW1 as of no consequence as it was tendered not by the defendant but a witness of the calibre of a reporter. Learned counsel submitted that the issue of the fluctuating rate of the currency is a notorious fact which did not call for evidence at the lower court. The counsel further submitted that in awarding nominal damages the court was guided by a number of factors considered by the court on pages 48-49 of the record~. He therefore urged the court to resolve this issue in favour of the respondent.

I have considered the submissions of both sides on this issue. It is necessary to examine the issue of damage in this appeal vis-a-vis the record and the prevailing law. The general position of the law is that the appellate court will only interfere with the award of damages made by the lower court only when the award is manifestly too low or too high or is based on wrong principles. See Alhaji Aliyu Balogun v. Alh. Shittu Laharan (1988) 3 NWLR (Pt.80) 66; (1988) 6 SCNJ 71; Elf Nig. Ltd. v. Opere Sillo & Anor (1994) 7 – 8 SCNJ 119; (1994) 6 NWLR (Pt.350) 258. One of such principles to be considered in the award of aggravated damage is that the conduct of defendant is a matter for consideration in assessment of quantum of it. See F.R.A. Williams v. Daily Times of Nig. Ltd. (1990) 1 SCNJ 1; (1990) 1 NWLR (Pt.124) 1. The poser here is whether this principle was followed in the instant case. The facts as highlighted above was that DW1 a reporter of the defendant/appellant apologized on behalf of the appellant, a conduct which would have enured to the benefit of the defendant/appellant. As reiterated supra, the learned trial Judge rejected the apology on the ground that the apology was not made by the defendant who is a corporate body. The court went on to speculate that if the apology had come from the Managing Director (MD) of the defendant company or a senior official it would have been accepted in mitigation of damages. The question raised here is whether speculation not in the contemplation of the parties by the Judge should be considered in the award of damages. The answer to this poser came for consideration and resolution by the Supreme Court in recent time in Alhaji Mustapher Aliyu Kusfa v. United Bawo Construction Co. Ltd. (1994) 4 SCNJ 1; (1994) 4 NWLR (Pt.336) I where it was held that no element of speculation is to be considered unless it was in the contemplation of parties. On issue of award of damages See Cho Orepekun & 7 Ors v. N.O.Amadi & Ors (1993) 11 SCNJ 68. Thus the action of the learned trial court in going on a voyage of speculation in the award of damages fall short of the principles. The failure of the learned trial Judge to take into consideration the conduct of the defendant through the apology of one of its agents the DW1 is a flagrant departure from the principles laid down for consideration in assessment of quantum of damages and I so hold. What is more, the learned trial Judge held that the plaintiff deserved nominal damages and ended up with the award of N750,000.00 where N2M was the amount claimed. There is no doubt that this is an appropriate situation for the appellate court to interfere and I so hold. See Balogun v. Labiran (supra) p.71 & Elf (Nig.) Ltd. v. Opero Silli & Anor (supra) p. 119. This is more so when the learned trial Judge failed to consider and evaluate the evidence of DW1, it becomes proper to carry out evaluation of such evidence which does not involve credibility of the witnesses. See C.D. Olale v. G.O. Ekwelandu (1989) 7 SCNJ 18; (1989) 4 NWLR (Pt.115) 326. It is clear that the lower court has drawn wrong conclusion and inference from evidence and settled facts before it hence the need for re-evaluation by the court. See J.A. Makanjuola & Anor v. Chief Oyelakin Balogun (1989) 5 SCNJ 42; (1989) 3 NWLR (Pt.108) 192; Highgrade Maritime Services Ltd. v. First Bank of Nig. Ltd. (1991) 1 SCNJ 110; (1991) 1 NWLR (Pt. 167) 290; Ltd. Col. Mrs. R.A.F. Finnih v. J.O. Imade (1992) 1 SCNJ 87; (1992) 1 NWLR (Pt.219) 511. In the light of the settled facts in this case coupled with the evidence of DW1 and the fact that the learned trial Judge held that the plaintiff is only entitled to nominal damages I hold that the award of N750,000.00 by the lower court in the circumstances of this case is manifestly too high, was based on wrong principles of law, failed to give effect to the decision of the court to award nominal damages and failed to take into consideration the remorse shown by the appellant through DW1 which is a mitigating factor. On a re-evaluation of the evidence on the records including that of DW1 which conveys the apology of the defendant/appellant which I accept coupled with the finding of the lower court that the plaintiff/respondent deserves a nominal damages which I also affirm, I am of the view that in view of the surrounding circumstances in this case a lower award of damages should be made. In this regard, it needs to be emphasized that the court is judicially vested with the discretion to take judicial notice of the difference in Exchange Rates since the 19th Century as was expounded by Kelly CB in Bryant v. Foot 1867 3 LR. B 497 at p. 506 thus:

“But we are of the opinion that, considering the difference in the value of money in 1189 and the present time, of which the court will take judicial Notice of’

I shall in assessing the damages take judicial notice of the difference in the value of money in 1991 and today.

In the light of the foregoing, I hold that this appeal Succeeds In Part on the Issue of Damages and It is allowed. The judgment of the Kaduna State High Court in Suit No. KDH/KAD/36/90 delivered on 19/7/91 Is Hereby Set Aside. In its place is substituted the following order

Having taken into consideration the surrounding circumstances in this case including the depreciating value of the Naira and the fact that only nominal damages is being awarded against the appellant, a National Daily Newspaper, I am of the considered view that the sum of N250,000.00 will reflect the ends of justice in this case. In consequence, judgment is hereby entered for the plaintiff/respondent in the sum of N250,000.00 only as general damages. Since both parties have won in part, I shall not be awarding costs.

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Other Citations: (1995)LCN/0006(CA)