Bassey Edem Vs Orpheo Nigeria Limited (2003) LLJR-SC

Bassey Edem Vs Orpheo Nigeria Limited (2003)

LAWGLOBAL HUB Lead Judgment Report

M. E. OGUNDARE, JSC. 

The Plaintiffs Orpheo Nigeria Limited and Dr. Sama Ekpo Sama (who are Respondents in this appeal) and the Defendants Bassey Edem and Pamol Nigeria Limited (now Appellants) had business relationship. The 2nd Defendant owned a cottage hospital on its plantation which it sold to the 1st Plaintiff. The hospital became known as Health Farm Clinic Dr. Sama and was being run on behalf of the 1st Plaintiff by the 2nd Plaintiff, the medical director of the hospital. By an agreement between the 2nd Defendant and 1st Plaintiff employees of the former were being treated, for agreed fees, at the hospital. On the expiration of the agreement the Defendant intimated the Plaintiffs of their intention not to renew it. The 2nd Defendant had by then converted a part of its premises into a clinic and equipped same, for the use of its staff. There was an opening ceremony of this clinic attended by many people, including members of the press. At this opening ceremony the 1st defendant, who at all times relevant to this action was the Managing Director of the 2nd defendant, made a statement which the Plaintiffs complained was libelous of them. The full text of the statement was published in “Pamol News” the staff newspaper of the 2nd defendant. In consequence of this statement the plaintiffs sued the defendants claiming N2m, general damages for the libel.

Pleadings were filed and exchanged and the case went to trial on Plaintiffs’ statement of claim and Defendants’ amended statement of defence. At the trial evidence was led on both sides. After addresses by learned counsel for the parties, the learned trial Judge in a reserved judgment found for the plaintiffs and entered judgment in their favour in the sum of N400,000.00 as general damages.

Being dissatisfied with this judgment the defendants appealed to the Court of Appeal which Court dismissed the appeal and affirmed the judgment of the trial Court. The defendants have now appealed to this Court.

Pursuant to the rules of this Court the parties filed and exchanged their respective briefs of argument. In the Appellant’s brief, 2 issues have been raised as calling for determination in this appeal. The issues read:

“1. Whether the claim of the 1st Plaintiff was sustainable in the light of the evidence adduced at the trial.

2. Whether the joint claim of the Respondent which culpability (or damages) is dependent on the two proofs of different and totally distinct injury, could be sustained in the circumstances.”

The plaintiffs for their part, formulated 2 Issues which I consider to be variants of the issues formulated by the defendant. I think for the purpose of this appeal the issues as formulated by the defendants will suffice.

ISSUE 1:

Whether the claim of the 1st Plaintiff was sustainable in the light of the evidence adduced at the trial.

Learned counsel for the defendants referred to passages in the evidence of the 2nd Plaintiff who testified at the trial as PW1. after citing dicta from various authorities learned counsel submitted, having regard to the pleadings filed and evidence of PW1, that there was no shred of evidence to justify the finding that the 1st Plaintiff was injured “in the pocket” by the libel of the defendants. He urged the Court to hold that the two Courts below were wrong in finding in favour of the 1st Plaintiff as no evidence existed showing such pecuniary loss, or any other loss for that matter, on the part of the 1st Plaintiff. He urged the Court to set aside the judgments of the Courts below in so far as the 1st Plaintiff was concerned.

Learned counsel for the Plaintiffs after referring to a passage in the judgment of the learned trial Judge observed that the learned Judge was mindful of the artificial nature of the 1st Plaintiff. He argued that the finding of the trial Judge was to the effect that the 1st Plaintiff was injured in its reputation in the operation of the Health Farm Clinic Dr. Sama which was no longer functioning as a result of the libelous publication by the defendants. Learned counsel argued that the injury to the 1st Plaintiff was to its business reputation. Counsel submitted that the 1st Plaintiff was injured in its reputation and was, therefore, entitled to damages.

The finding in favour of the 2nd Plaintiff is not being contested in this appeal. It is the judgment in favour of the 1st plaintiff who is a corporate body that is being contested on the ground that there was no evidence that the 1st Plaintiff suffered any pecuniary loss as a result of the libel.

It is settled law that a limited liability company such as the 1st plaintiff cannot be injured in its feelings as it has no feelings; it can only be injured in its pocket. As Lord Reid put it in Lewis V. Daily Telegraph, Ltd. (1963) 2 All ER 151 at 156:

‘A company cannot be injured in its feelings, it can only be injured in its pocket. Its reputation can be injured by a libel, but that injury must sound in money. The injury need not necessarily be confined to loss of income. Its goodwill may be injured.”

(underlinings are mine)

The law is restated by this Court per Belgore JSC in Duyile V. Ogunbayo and Sons Ltd. (1988) 1 NWLR 601 at 611 in these words:

“Unlike human being, a corporate body suing for defamation, seeks only damages for pecuniary loss it can suffer and not for things only possible in personal feelings. It can sue for loss of profit, shortfall in turnover or anticipatory loss but not for natural grief and distress, and not for social disadvantage. A company in law is a person that can sue and be sued, but it can only do these through the agency of its directors who think for it and carry out its objective. A company is a legal person, but it is inanimate. It has got no personal feeling of grief or distress. A company can only be injured as to its earnings and not as to its feelings. It can be injured by libel and that injury must be related to its loss in money terms. Its loss of earnings, loss of profits, and loss of goodwill are matters that libel can bring as misfortune for the company. It is because of these special attributes of a company that in an action in defamation, a company does not need to prove special damage or even financial loss to recover damages for the injury to its reputation in the way of its trade or business. Lewis V. Daily telegraph (1964) A.C. 262; Proprietors of Selby Bridge V. Sunday Telegraph (The Times 17th February, 1966).”

(underlinings are mine)

Again in South Hetton Coal Company V. North Eastern News Association (1894) 1QB, 133 1 147, Kay, L.J. had this to say on the competence of a corporation to sue for defamation –

“In Metropolitan Saloon Omnibus Co. V. Hawkins (1859) (1) Pollock, C.B., says, ‘That a corporation at common law can sue in respect of a libel, there is no doubt. It would be monstrous if a corporation could maintain no action for slander of title, through which they lost a great deal of money. It could not sue in respect of an imputation of murder, or incest, or adultery, because it could not commit those crimes; nor could it sue in respect of a charge of corruption, though the individuals composing it may. But it would be very odd if a corporation had no means of protecting itself against wrong: and, if its property is injured by slander, it has no means of redress except by action. Therefore it appears to me clear that a corporation at common law may maintain an action for a libel by which its property is injured; and he held that a trading corporation formed under 19 & 20 Vict. C. 47, had the same power, saying this: ‘In order to carry on business it is necessary that the reputation of such a corporation should be protected, and therefore in cases of libel or slander it must have a remedy by action; and the other judges of the Court of Exchequer concurred.”

Coming back to the case on hand there can be no doubt that the statement made by the 1st Defendant of the plaintiffs was defamatory. The Defendants are not contesting that in this appeal; what they seem to be saying is that as on the evidence of PW 1 (the 2nd Plaintiff) 1st Plaintiff suffered no pecuniary loss as a result thereby, it was not entitled to award or damages. In his evidence at the trial 1st Plaintiff testified thus:

“The operation of the Health Farm Clinic Dr. Sama dwindled to a stop after that publication”

Cross-examined, the witness went on to say:

“Orpheo Nigeria Limited is a Multi Purpose Company. They handle quite a lot of things including health – buying of drugs. It is a multi purpose Company. I do not agree that I knew very little about Orpheo Nigeria Limited apart from health, orpheo carries out quarry. The company can do so through its employee. When the staff does something in the name of Orpheo, Orpheo is involved.”

To further questions the witness added that “business has not been good for Orpheo because of the present economy.” Concluding his evidence in cross-examination the witness said:

“Orpheo has been declaring profits. Business is very bad in the present economy. The down trend came when the contract was terminated. Orpheo is a Multi Purpose Company. We are still making money in quarry. The business is not so good. It used to be good but went down when the economy became bad.”

The argument of learned counsel for the Defendants is that having regard to the evidence highlighted above, the 1st Plaintiff suffered financial loss not as a result of the libel, but as a result of the economic down turn in the country. I have carefully considered this submission and, as attractive as it is, I find myself unable to accept it as a ground for reversing the judgment in favour of the 1st Plaintiff. That the libel complained of is defamatory of the 1st Plaintiff in its reputation is without doubt. I have read over the dictum of Belgore JSC in the case cited above and am of the view that once it is proved that the libel complained of is defamatory of the company in its reputation, the company is entitled to award of damages. As Kay, LJ put it in South Hetton Coal Company V. North Eastern News Association (supra) at 148:

“I therefore am of opinion that a trading corporation may sue for a libel calculated to injure them in respect of their business, and may do so without any proof of damage general or special. Of course if there be no such evidence the damages given will probably be small.”

(underlining is mine)

Therefore, the conclusion I reach is that it is not necessary for the corporation in order to succeed to prove that special or general damages occurred once it can show that its reputation or goodwill is injured by the libel. Although the 1st Plaintiff in this case has not established by evidence the pecuniary loss suffered by it as a result of the defamation, it is however, in evidence that the operation of his clinic dwindled to a stop after the publication of the libel. In the result I resolve Issue (1) in favour of the 1st Plaintiff.

ISSUE 2:

Whether the joint claim of the Respondent which culpability (or damages) is dependent on the two proofs of different and totally distinct injury, could be sustained in the circumstances.

The thrust of Defendants submission is that since the damage required to be proved by each Plaintiff is different and distinct the parties could not jointly sustain the libel action. It is contended that the trial judge failed to appreciate that it is only one of the two Plaintiffs that is a natural person. There is a belated attempt to question the finding that the libelous publication referred to the two plaintiffs. I can find no substance in the agreements for the Defendants on this issue. The 1st Plaintiff is the owner of the Health Farm Clinic Dr. Sama while the 2nd Plaintiff was the one responsible for running it. Any libelous imputation on the professional competence of the clinic would obviously refer to the two Plaintiffs. There is no doubt that the two Plaintiffs rightly joined in this action. The joiner of the two Plaintiffs was not questioned by the Defendants at the trial. In any event I can see nothing wrong in the two Plaintiffs joining to sue as co-Plaintiffs in this action. See Cross River State Newspaper Corporation V. J.L. Oni and 6 Others (1995) 1 NWLR 270 at 291 where Iguh JSC observed:

I have given a most careful consideration to the pleadings and the evidence before the trial court and it seems to me crystal clear from the findings of the trial court as affirmed by the court below that the right to relief as claimed by all seven plaintiffs is in respect of and arises out of the same transaction. This is because in cases of libel or slander, the phrase ‘the same transaction’ is judicially interpreted to mean the same publication and, I am with respect, in entire agreement with this view. See too Smith V. Foley (1912) Victorian Law Rep. 314.

In the second place, where several persons are jointly injured by a libel or slander, they may all join as co-plaintiffs in one action. The reference in the offending publication was to ‘the Management staff of the African Newspapers of Nigeria Ltd’. and it is the unchallenged case of the respondents that they were at all material times the management staff of the company in issue. They were therefore all jointly injured by the offensive publication and were entitled in the absence of other disqualifying factors to be properly joined as co-plaintiffs in the suit.

Thirdly, it cannot be seriously argued that if separate actions were brought by the plaintiffs/respondent before the trial court, common questions of law and fact would not have arisen in respect of such suits. The most obvious of such common questions of law and fact are whether the words complained of were published by the appellant. In my view, the requirements for the joinder of all seven respondents as co-plaintiffs in the present case were fully established and I endorse the decision of the trial court as affirmed by the court below on the issue. See too Oshoboja V. Dada (1987) 3 NWLR (Pt. 66) 565 at 572 and Fadayomi V. Shadipe (1985) 2 NWLR (Pt. 25) 736 at 745. To hold otherwise would create the situation in which the seven respondents, as plaintiffs, would have filed seven separate suits against the same defendant in respect of the same libel contained in the same publication – a situation which, in my view, is not entirely desirable or warranted and would naturally amount to an unnecessary multiplicity of actions which ought not to be encouraged. See Chinweze V. Masi (1989) 1 NWLR (Pt. 97) 254 at 267.

On the other hand, the court as I have already pointed out, has power under Order 8 Rule 1 to order separate trials upon the application of any defendant if it considers that the joinder may embarrass or delay the trial of the action. It is noteworthy that no such application was made by the appellant in the present case.”

Incidentally the present action on hand arose from Cross River State and the same rules of Court that applied in Oni’s case also applied in this case.

My conclusion on Issue (2) is that it s resolved against the Defendants.

In conclusion I see no merit in this appeal which I unhesitatingly dismiss. I affirm the judgments of the two Courts below and award to the Plaintiffs the sum of N10,000.00 as costs of the appeal.

SC. 171/1999