Daily Times of Nigeria Plc. & Ors V. Major General Mohammed Magoro (2000)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J. C. A. 

This is an appeal against the ruling of SAHID J. of the Lagos State High Court, Lagos Division given on 24/3/95, in suit No. LD/2799/91.

The plaintiff now Respondent had sued the defendants now the appellants for libel claiming N100 Million. The said alleged libel said to be contained in the Daily Times issue of 23/10/91 never referred to the respondent by name, or description. Consequently, the appellants applied to the respondent by letter dated 10/2/93 for further and better particulars of the statement of claim. The Respondents apart from naming Major General Buhari (Rtd) and Major General Tunde Idiagbon (Rtd) as the publishers, whose addresses were not disclosed, contained no special facts and circumstances extrinsic to the publication.

The appellants then applied to the trial court to have paragraphs 7(i) and (ii) and 8(i) and (ii) of the statement of claim struck out on the grounds that the same disclosed no reasonable cause of action, is vexatious and/or tend to prejudice, embarrass or delay the fair trial of the action. The learned trial Judge dismissed the appellants’ application.

Dissatisfied with the ruling, the appellants filed three grounds of appeal from which they formulated the following single issue:

“Whether having regard to the facts that the respondent was not named in the publication; the legal innuendoes pleaded by the respondent and the consequential finding of the learned trial Judge that it was mandatory for the respondent to furnish particulars of facts and matters as required by the appellant in Exhibit ‘B’, the respondent’s reply in Exhibit ‘c’ was sufficient in law and so paragraphs 7 (i) and (ii) and (1) and (ii) of the statement of claim should be struck out along with the then entirely barren statement of claim.

The respondent formulated the following two issues for determination:

“(1) The main issue for determination is whether on the face of the writ of summons and the statement of claim plus the particulars supplied in the plaintiff/respondent’s counsel letter dated 16/4/93, the respondent/appellant do not have enough materials for them to file a defence to the action. Even if a popular or legal innuendo is involved?”

2. Whether as the plaintiff was not named in the Article, the defendants by alleging fraud in the Board of the National Maritime Authority of which the plaintiff was the Chairman reasonable people who have had to read Newspapers or had had to transact business with the National Maritime Authority would not know it referred to the plaintiff particularly when the defendants made allegations that corruption, inefficiency and mis-management were levelled against the Authority’s echelon of late? And further whether by further stating,

“For some time now, the N. M. A. has been rocked by a financial scandal for which not less than three top officials of the Authority are being quizzed at Alagbon over an alleged mismanagement and embezzlement of money in the Authority’s account with Midland Bank of London. Echelon had not been Translated to mean top officials of the National Maritime Authority and whether the Chairman of the Board is not a top official?”.

Counsel will do well to remember that brevity and economy of words are essential in brief-writing. Issues must be properly and carefully worded. This last issue of the respondent is unnecessarily lengthy. It is regarded as an extension of the first issue. However, the first issue of the respondent and the single issue formulated by the appellants are similar and quite germane for the determination of this appeal. The appellants’ only issue therefore will guide me in the determination of this appeal.

The paragraphs of the statement of claim which the appellants are attacking are paragraphs 7(i) and (ii) and paragraphs 8(i) and (ii). They are reproduced as follows:

“7 (i) On page 1 of the Daily Times issue of Wednesday 23/10/91 under the title “Maritime Authority Board Dissolved” the defendants falsely and maliciously printed and published of and concerning the Board of National Maritime Authority of which the plaintiff was until 8/10/91 the Chairman and the said plaintiff’s position with the board is known to wide range of Nigerians, who have had to read papers or had had transact business with National Maritime Authority, and therefore the defendants have falsely and maliciously printed and published of the plaintiff by virtue of his position as Chairman of the said National Maritime Authority the words following.

7(ii) Although the dissolution order simply attributed the action to the re-organisation going on in the Authority, Daily Times found that the dissolution might not be unconnected with allegations of corruption, inefficiency and mismanagement levelled against the Authority’s echelon of late.

Apart from the rampaging corruption, they claimed that the inefficiency of the Authority has nearly killed the indigenous shipping industry through various absurdities, while at the same time enriching foreign shipping lines.

For some time now, the NMA has been rocked by a financial scandal for which not less than three top officials of the Authority are being quizzed at Alagbon over an alleged mismanagement and embezzlement of money in the Authority’s account with Midland Bank of London;

8(i) by the above the following become deductible from the publication. That the Board was dissolved by virtue of allegations of corruption and inefficiency and mismanagement levelled against the plaintiff as the Authority’ Echelon by virtue of his position as the Chairman of the Board.

8(ii) That the plaintiff presided over the affairs of the NMA Board and conducted same fraudulently and/or dishonestly and by enriching foreign shipping lines and as a Top official, he was quizzed at Alagbon over an alleged mismanagement and embezzlement of money in the Authority’s account with Midland Bank of London.”

It is contended by the appellants in their brief that the respondent is nowhere referred to by name or by description in paragraph 7(i) above. Again, that in paragraphs 8 (i) and (ii) the respondent avers special imputations from the alleged publication pleading legal innuendoes but did not include in these averments in the statement of claim particulars of special facts and circumstances including the names of alleged publications as required by the general law of libel and in particular the then Order 16 rules 4 and 5(2) of the Lagos State High Court (Civil Procedure) Rules, 1972.

What the respondent’s counsel described as the particulars in response to the appellants’ counsel’s letter of 10/2/93 are reproduced thus:-

“UNDER PARAGRAPHS 7(i) 8(i) and (ii) The courts take judicial notice that the Newspapers particularly Daily Times enjoys large and wide readership.

That Newspapers are read and meanings understood by ordinary reasonable citizens.

That dissolving a board due to rampaging corruption, e.t.c. of which the plaintiff is the chairman connotes the inference by which the world will understand and have understood it affects the plaintiff.

The Defendants

(a) Published the words complained of recklessly.

(b) Had no honest belief in the truth of the said word.

(c) Neither withdrew the said words complained of nor have they given or offered apology.

Also (i) Major General Buhari (Rtd)

(ii) Major General Tunde Idiagbon were among the several people to whom the publication was made; and who under stood it refers to the Plaintiff’.

It is in view of the fact that the appellants were not satisfied with the above particulars for the purpose of defending libel action against them they applied to the lower court to have the respondent’s claim struck out.

The further and better particulars of the statement of claim requested by the appellants under paragraphs 7(i); 8(i) and (ii) were as follows: –

“1. Stating the facts and matters relied upon to support that the words complained of were published of the plaintiff.

2. Identifying by names the persons(s) to whom the said words were published who knew the said facts and matters relied on.”

The question here is, whether each particular supplied by the respondent passes the test contained in Order 16 rule 5 (2) 1975 now Order 17 rule 5 (2) of the Lagos State Civil Procedure Rules clearly identified in his ruling?.

The provisions of Order 82 rule 3 (i) RSC England 1965 is almost similar to Order 16 rule 5 (2). The English Rule provides:

“Where in an action for libel or slander the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he must give particulars of the facts and matters on which he relies in support of such sense.”

Order 16 rule 5(2) 1972 now Order 17 rule 5(2) provides:

“In an action for libel or slander, if the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he shall give particulars of the facts and matter on which he relies in support of his allegation.”

(Italics mine for emphasis).

The learned trial Judge considered two very elucidating passages of Lord Denning on ‘popular’ and ‘Legal’ innuendoes in the English case of Fulhan v. Newcastle Chronicle and Journal Ltd and Another (1977) 3 AER 32 at 35 – 36.

The learned Jurist stated as follows:-

“Secondly, the cause of action on legal innuendo. If the plaintiff relies on some special circumstances which convey (to some particular person or persons knowing these circumstances) a special defamatory meaning other than natural and ordinary meaning of the words (pleading what is called a ‘legal’ innuendo so as to show what is that special defamatory meaning), then he must in his statement of claim specify the particular person or persons to whom they were published and the special circumstances known to that person or persons, for the simple reason that these are the ‘material’ facts on which he relies, and must rely for his cause of action. It comes straight within the general rule of pleading contained in RSC ord. 18 r. 7 and also within the particular rule in libel action contained in RSC ord. 82 r. 3 …”

This is, as well, the law in Nigeria regarding pleading and proof of innuendoes. The learned trial Judge correctly restated the principles that the particulars referred to in Order 82 rule 3 RSC English Rules must be allegations of facts extrinsic to the publication. A party filing particulars of an innuendo would not be allowed to include in the particulars inferences which could be shown from the publication itself.

If a plaintiff desires to prove an extended meaning of the publication he must not only allege but must prove facts not in the publication itself but which are known to some people by which reasonable persons with knowledge of those facts might impute to the publication. It follows, therefore, that the plaintiff is required to allege only facts and not expressions of opinion or inferences. The learned trial Judge also was of the firm view that “on the authorities the provision of Order 83 (sic) rule 3 are mandatory and must be complied with”. He however, had to arrive at these findings in his ruling:

“(1) Although the defendants have ascribed an allegation of ‘legal innuendo’ to the claim of the plaintiff, the plaintiff had not denied that he also claimed” legal or special innuendo.

(2) That being the position, it was incumbent on the plaintiff to furnish the particulars required by the defendant.

(3) That the particulars furnished by the plaintiff in response to the defendant’s request for particulars as contained in Exhibit ‘c’ attached to the affidavit in support of the motion are sufficient.

(4) The explanation of the meaning of the word ‘echelon’ by reference to paragraph 3 of the alleged defamatory publication was unnecessary. I have carefully considered the particulars supplied by the respondent in response to the appellant’s request for the said particulars. These have been fully reproduced earlier above. I have also considered the legal position on the issue of innuendo in England as stated by Lord Denning M. R. (as he then was) in Fulham’s case (supra). The Nigerian position of the law in this regard is not different by virtue of provisions of Order 16 rule 5(2) of the Lagos State (Civil Procedure) rules 1972. See also Zik Enterprise’s Ltd v. Awolowo (1955) 14 W. A. C. A 696 and J. M. Johnson v. the Daily Times of Nigeria Ltd and Peter Osugo (1966) LTR 110.

Above all, I have also once more gone through the particulars the respondent supplied in response to the appellant’s request in Exhibit ‘C’ attached to the affidavit in support of the appellant’s motion. I am of the firm view that these particulars are not adequate. They are not sufficient to enable the appellants to effectively settle and serve their defence on the respondent. The learned trial Judge failed to take and consider the contents of Exhibit ‘B’ one after the other, to see whether they complied with the legal principles so ably identified by him from both the English and Nigerian authorities. This procedure was commended and adopted in the Court of Appeal in England in Grubb v. Bristol United Press Ltd (1962) 2 AER 380.

I will now take some pains to examine the particulars supplied in Exhibit ‘C’ one by one. They are already reproduced earlier above. But I will now only summarise them in that order:

Particular (1) “That Courts take judicial notice that newspapers particularly Daily Times enjoy large and wide readership.”

Particular(2) “that newspapers are read and meanings understood by ordinary reasonable citizens.”

These two particulars cannot be said to be such extrinsic fact and circumstances known to any publishees, which would lead reasonable persons, with knowledge of such facts to impute to the publication in para. 8(i) and (ii) of the statement of claim or at all. The statement is therefore utterly irrelevant for the purpose it is meant to serve in this case.

Particular (3): “That dissolving the board due to rampaging corruption etc. of which the plaintiff is Chairman connotes the inference by which the world will understand and have understood it affects the plaintiff”.

Here, again let it be carefully noted that the publication complained of is in para. 7(ii) of the statement of claim. It never suggested that the Board was dissolved because of rampaging corruption afflicting the Board but the Authority’s echelon. Who is the Authority’s echelon?. Besides, if there was allegation of corruption and so on, against the Authority’s board, (and there was none) it seems, that will, in its natural and ordinary meaning of the words, be capable of an inference defamatory of the Board members and will not be subject of legal innuendo. See Grubb’s case (supra) 392. B-P. Further, the interpretation of words alleged libel, for example ‘Authority s echelon’ in the instant case will not be admissible fact and matter extrinsic to the publication.

Particular 4

“The defendants

(a) Published the words complained of recklessly.

(b) Had no honest belief in the truth of the said words.

(c) Neither withdrew the said word complained of nor have given or offered apology”.

These particulars are not such extrinsic facts and circumstances known to any publishee, which would lead reasonable persons, with knowledge of such facts to impute to the publication the defamatory meaning ascribed to the publication. Besides, the statements in (a) and (b) are clearly opinions. They offend the rule about facts extrinsic to the publication and (a), (b) and (c) could only affect damages if any libel were properly pleaded and proved.

Particular 5: “(i) Major General Buhari (Rtd),

(ii) Major General Tunde Idiagbon (Rtd) were among the several people to whom publication was made and who understood it refers to the plaintiff.”

While the address of these prominent citizens who were once Head of State and Deputy could be dispensed with, it is to be observed that no manner of facts and circumstances known to the two retired Generals were ably set out at all. The facts should have been such that if known to the reasonable people of ordinary intelligence; they could infer that the publication referred to the plaintiff who was never referred to any where in the publication by name or description and derived the imputation pleaded in paragraph 8 (i) and (ii) of the Statement of Claim.

In view of this, what purport to be particulars in Exhibit ‘C’ are not particulars within Order 16 rule 5(2) of the then applicable High Court Rules 1972 which is now Order 17 rule 5(2). The learned trial Judge has correctly held that on the authorities, the provisions of Order 82 rule 3(i) RSC. England (the same with our Order 16 rule 5(2), are mandatory and must be complied with. The respondent failed however, to comply with the same in his statement of claim. When further opportunity was offered to put things right pursuant to Order 16 rule 6(2) by appellants’ letter for further particulars he again failed to do so. Justice is not a one way traffic. Justice is done once it is in accordance with law. The Court stands for justice for both the plaintiff and the defendant in a case. In Albert Oluwole Obikoya v. Peter Ezenwa. (1973) 11 SC 135, the Supreme Court in a similar setting and circumstances struck out the offending paragraphs of the statement of defence.

I am favourably disposed to do the same in this case.

On the whole, this appeal ought to succeed and it is hereby allowed. I set aside the ruling delivered by Sahid J. on 24/3/99. I make order striking out paragraphs 7(i) and (ii) and 8(i) and (ii) of the respondent’s statement of claim along with the entire statement of claim. Appellants are entitled to costs which I assess and fix at N3,000.

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Other Citations: (2000)LCN/0777(CA)