David-west V. Oduwole (2003)
LawGlobal-Hub Lead Judgment Report
MURITALA AREMU OKUNOLA, J.C.A.
This is an appeal against the judgment of the High Court of Oyo State of Nigeria holden at Ibadan presided over by R. G. Oyetunde, J., and delivered on 1st day of July, 1999.
The facts of this case briefly put were as follows:
The writ of summons and statement of claim in this matter were filed on the 8th of October, 1996, plaintiff therein claimed against the defendants damages for libel contained in the Nigerian Tribune of Monday, 2nd September, 1996. The pleadings were subsequently amended and the prevailing statement of claim and statement of defence are the further amended statement of claim and the further amended statement of defence. Plaintiff called four witnesses including himself in proof of his case, defendants elected not to give evidence in rebuttal and after addresses by learned counsel for the parties, the trial Judge gave judgment on the 1st of July, 1999. In the judgment, the learned trial Judge held that only one allegation made by the defendants against the plaintiff was libelous and awarded N10,000.00 to the plaintiff as damages against the defendants for the libel proved.
Dissatisfied with this judgment, the plaintiff appealed to this court on two original grounds of appeal and with leave of court granted on the 18th of March, 2002, filed three additional grounds of appeal. From the five grounds, the appellant herein formulated three issues for determination in this appeal, viz:
“1. Whether from the facts of this case, the statement that plaintiff “left the Ministry of Petroleum Resources in a comatose State” is an opinion, not a statement of fact and therefore irrelevant?.
2. Whether the learned trial Judge was right when he cast the burden of proving fair comment on the plaintiff?.
3. Whether the quantum of damages awarded in this case was fair and adequate?.”
The respondents also formulated a single issue which but for style used is the same with issue No.3 of the appellant.
Both learned counsel to the parties filed their briefs of argument on behalf of their respective clients. On 23/1/03, when this appeal came for hearing, learned counsel for the parties adopted and relied on their respective briefs and addressed us viva voce. Learned counsel for the appellant, Mr. T. R. Ikpotor adopted and relied on the appellant’s brief filed herein on 20/5/02 and urged the court to allow the appeal. By way of reply, learned counsel for the respondents, Mr. Akin Ige adopted and relied on the respondents’ brief filed herein on 12/7/02 and urged the court to dismiss the appeal. He also moved in terms of the preliminary objection contained in the respondents’ brief. Mr. Ikpotor said he had nothing to add.
I have considered the submissions of both learned counsels to the parties highlighted above. It is now necessary to consider the three (3) issues raised by the appellant vis-a-vis the records and the prevailing law particularly as reiterated in their briefs of argument.
I shall take issues 1 and 2 together. On issue No. 1, bordering on whether from the facts of this case, the statement that plaintiff “left the Ministry of Petroleum Resources in a comatose state” is an opinion, not a statement of fact and therefore irrelevant, both learned counsel to the parties made copious submissions in their respective briefs of argument. On pages 2 & 3 of the appellant’s brief, learned counsel to the appellant submitted that the trial court was wrong when he held that the above quoted statement is an opinion, not a statement of fact and therefore irrelevant.
After defining a fact as distinct from an opinion from Ballentine’s Law Dictionary, 3rd Edition, learned counsel contended that in the instant case, the defendants never gave evidence to establish any fact that the plaintiff left the Ministry of Petroleum Resources (hereinafter referred to as the Ministry) in a comatose state and that neither did they tender any fact that could lead to such a conclusion or inference. Learned counsel recalled the evidence of the plaintiff that he left the Ministry in a stronger and healthier state on which he tendered exhibit ‘U’.
In conclusion, learned counsel submitted that the trial Judge was clearly wrong not to have concluded that the statement was libelous of the plaintiff.
On Issue No.2 which centres on whether the learned trial Judge was right when he cast the burden of proving fair comment on the plaintiff, both learned counsel made their submissions in their respective briefs of argument. By way of summary, learned counsel to the appellant on pages 3 & 4 of the appellant’s brief submitted that it is trite that though in civil proceedings, the onus of proof is not static as it shifts but the burden of proving that the comment is fair and not actuated by malice is on the defendant who relies on the defence.
Consequently, learned counsel submitted that since there was no evidence on record by the defendants, that the comment was fair or honestly made, the learned trial Judge was wrong to hold that the allegations concerning the setting up of the Commission of Enquiry into the Rivers State Ministry of Education, the controversy over the M. V. Tuma and plaintiff’s conviction of November 16, 1990 were not libellous of plaintiff.
By way of reply, learned counsel to the defendants/respondents raised a preliminary objection with respect to grounds 1, 3 & 4 of the grounds of appeal on which issues 1 & 2 are predicated, submitting that both the grounds, the issues and the arguments canvassed in support thereof contained in the appellant’s brief are totally misconceived and ought to be struck out for the following reasons:
(i) That no issue was formulated in respect of ground I which complains about the judgment of the trial court being “against the weight of evidence”. Learned counsel submitted that such ground upon which no issue is formulated is deemed abandoned. Learned counsel cited in support numerous authorities including the case of C.C. & I. SPR LTD. v. OG.SWC (2002) 9 NWLR (Pt.773) 629 p. 659 BWC.
(ii) Insofar as grounds 3 and 4 and the issues formulated thereon seek to attack the decision of the trial court which gave judgment in favour of the appellant and found the respondents liable in libel for the publication complained of in the action; the complaints can serve no useful purpose. All that mattered in the suit was whether the respondents were liable or not and since the court made a finding of liability and went on to award damages, it is of no consequence how the court arrived at the decision. This is moreso as there is no cross appeal by the Respondents.
(iii) Further, it is submitted that the issues raised by the grounds of appeal apart from grounds 2 and 5 are of no practical value and to consider same would only be a mere academic exercise in which this court has no jurisdiction to engage.
Learned counsel cited Titiloye v. Olupo (1991) 7 NWLR (Pt.205) 519; Badejo v. Federal Ministry of Education (1996) 8 NWLR (pt.464) 15.
Learned counsel to the respondents further submitted that even if the two issues formulated by the appellant in respect of the said grounds 3 and 4 are resolved in favour of the appellant, it will not change or improve the appellant’s position since such resolution will not and cannot vary the liability of the respondents which has been settled by the court of trial. By way of conclusion, learned counsel to the respondents submitted that in view of the foregoing, the respondents contend that only one proper issue arises for determination in this appeal and it is as set out by the respondents in their sole issue (supra) which is the same in substance with issue No.3 formulated by the appellant (supra).
I have considered the submissions of both learned counsel to the parties on issues 1 & 2 as well as the arguments of learned counsel to the respondent’s in respect of the preliminary objection raised in the respondents’ brief. It is intended to consider both together moreso since the appellant’s counsel apart from the submission on issues 1 & 2 did not file appellant’s reply brief to the preliminary objection.
As regards the argument on the omnibus ground 1 upon which no issue has been formulated, I agree with the submission of learned counsel to the respondents that such a ground under our law is deemed abandoned and I so hold. See C.C. & Ind. S.P.R. Ltd. v. O.G.S.W.C. (2002) 9 NWLR (Pt.773) 629 p. 659 B-C; S. Uzoechi v. J. I. Alinnor (2002) FWLR (Pt.27) 2003, 2010 AB, (2001) 2 NWLR (Pt. 696) 203; and Alhaji Abudu W. Akibu & Ors v. Alhaja Munirat Oduntan & Ors. (2002) 7 SCNJ 189, (2000) 13 NWLR (Pt. 685) 446; Sparkling Breweries Ltd. & Ors. v. Union Bank of Nigeria Ltd. (2001) 15 NWLR (Pt. 737) 539, (2001) 7 SCNJ 321, (2001) 15 NWLR (Pt.737) 539 in all of which the Supreme Court held that grounds of appeal are deemed to be abandoned and liable to be struck out when no issue is raised or predicated on them.
On grounds (ii) & (iii) of the notice of preliminary objection, I have considered the arguments of the respondents/objectors’ counsel vis-a-vis the submission of the learned counsel for the appellant, I am of the view that the bone of contention at the trial by the plaintiff/appellant was that the respondents defamed him by publishing the offensive editorial in the Nigerian Tribune containing various allegations which the appellant considered to be libellous of him.
At the end of trial, the trial court gave judgment in favour of the appellant and found the respondents liable in libel for one of the allegations contained in the publication complained of in the action.
The complaints in grounds 3 & 4 and issues 1 & 2 predicated on them seek to attack this judgment. The question for determination at the court below was whether the defendants/respondents were liable for libel or not. Since the court made a finding of liability and went on to award damages, it has resolved the main issue before it.
All that remains is the question of the damages awarded and I so hold. Any other matter is an academic exercise in which the court has no jurisdiction to engage. See Titiloye v. Olupo (1991) 7 NWLR (Pt.205) 519 and Badejo v. Federal Ministry of Education (1996) 8 NWLR (Pt.464) 15.
In the light of the foregoing authorities, I hold that the preliminary objection is sustained.
Consequently, from the arguments of both learned counsel to the parties, the main issue for determination in this appeal is “whether the quantum of damages awarded in this case was fair and adequate”. Both learned counsel to the parties, addressed us copiously in their briefs on this main issue. On pages 4-7 of the appellant’s brief learned counsel to the appellant submitted that the quantum of damages awarded by the learned trial Judge is clearly inadequate and ought to be reviewed upwards. Learned counsel submitted that appellate courts can intervene to vary an award of damages given by the High Court as in the instant case, particularly where such an award is shown to be arbitrary, erroneous or a wrongful exercise of discretion.
Learned counsel cited a number of cases by the appellate courts in the country where the principle of award of damages in libel cases were laid down such as His Highness Uyo 1 v. NNPL In Re Egware (1974) 6 SC 103, (1974) NSCC 304 and Cross River State Newspapers Corp. v. Oni (1995) 1 NWLR (Pt. 371) 270, (1995) 26 LRCN 51. Learned counsel referred to the evidence of PW1 and PW4 to submit that such evidence abound to aggravate the damages awarded. He therefore urged the court to smite the award of N10,000.00 and award in its place, the sum of N250,000,000.00 originally claimed.
By way of reply, learned counsel to the respondents at paragraphs 5.01 to 6.01 made a copious submission on this main issue. He submitted that an award of damages by a trial court is an exercise of judicial discretion and an appellate court will not reverse the award of a trial court unless it is clearly shown that:
“(i) the trial court acted on a wrong principle;
(ii) the amount is so excessively high or low that it is an erroneous estimate of the plaintiff’s entitlement;
(iii) the award is arbitrary;
(iv) there is a wrong exercise of judicial discretion;
(v) injustice would result if the appellate court does not interfere.”
In support of this submission, learned counsel cited the cases of J. Durojaiye Adetoro & Ors. v. Ogo-Oluwa Kitan Trading Co. & Anor. (2002) 9 NWLR (Pt.771) 157 at 220-221 paras. F-A., and Bala v. Bankole (1986) 3 NWLR (Pt.27) 141. In addition, an appellate court will not substitute a figure of its own for that awarded by the trial court merely because it would have awarded a different figure if it had tried the case at first instance – See Ojini v. Ogo Oluwa Motors (Nig.) Ltd. (1998) 1 NWLR (Pt.534) 353; Article 1522- Gatley on Libel and Slander 8th Edition.
Furthermore, in an action of libel ‘the assessment of damages does not depend on any legal rule’ Per Lord Watson in Bray v. Ford (1896) AC at page 44. “The amount of damages is peculiarly the province of the jury” who in assessing them will naturally be governed by all the circumstances of the particular case- See Davis v. Shepstone (1886) 11 AC at page 187 and Jones v. Hulton (1909) 2 KB at page 444.
Counsel submitted that when all the circumstances of this case are taken into account, the award made by the trial court was not erroneous neither was it manifestly low or an improper exercise of the discretion of the court.
The court made a finding (which has not been appealed against) that all the allegations complained of by the appellant were true and save for the inaccuracy of describing the movement of the appellant from the Ministry of Petroleum Resources as a sack rather than a deployment, the appellant’s claims would have been dismissed in their entirety, learned counsel contended.
According to learned counsel, the appellant did not claim special, exemplary or aggravated damages either in the writ of summons or in the statement of claim and the appellant is therefore precluded from demanding excessively large damages.
Learned counsel further submitted that the court properly directed itself on the issue of damages at pages 123-124 of the record and this court ought not disturb the award even if it believed it would have awarded a higher amount if it was in the place of the trial court.
Learned counsel further commended to the court on this issue the dictum of Salami, J.C.A. in Salaudeen v. Mamman (2001) FWLR (Pt.17) 1 at 29 paras. F-G that the object of award of damages in libel cases is not to kill or ruin a defendant. By way of conclusion, counsel urged the court to dismiss the appeal as this is not a proper case in which this court ought to interfere and disturb the award of damages made by the trial court as the said damages are neither manifestly low, a wrongful exercise of the discretion of the trial court nor were they based on wrong principles of law.
I have reiterated in detail the submissions of both learned counsel to the parties on this main issue with a view to setting out the emphasis of the individual counsel on the issue. I have considered the submissions of both learned counsel to the parties on this main issue vis-a-vis the records and the prevailing law. The whole argument boils down in my view to what constitutes the principle of award of damages in libel suits and whether the trial court in awarding damages in the instant case had operated within this principle. Both learned counsel to the parties had in various ways correctly stated the principle. The starting point of my consideration is to spell out the principle, review briefly the facts of the case relating to events leading to award of damages and determine whether the learned trial Judge in the exercise of his discretion had kept within the principle. It is the outcome of this that will determine whether or not the appellate court can interfere in reviewing the award.
On the principle for the award of damages in libel suits, as reiterated (supra), both learned counsel to the parties have correctly stated the principle which centres on whether the appellate courts can intervene to vary an award of damages given by the High Court.
This poser had come for consideration and determination by the Supreme Court in a plethora of cases. Thus in Nka v. Onwu (1996) 7 NWLR (Pt. 458) 1 at 27, (1996) 40/41 LCRN 1303 at 1336H, the Supreme Court held as follows:
“…the appellants’ complaint can only be meaningful if they can show that the award is arbitrary, in which case, the Court of Appeal will and is duty-bound to intervene to set it aside or reduce it (see S.W. Ubani Ukoma v. G. E. Nicol (1962) 1 SCNLR 176, (1962) 1 All NLR 105; Bashiru Bakare v. Alfred Jalkh (1969) 1 NMLR 262; Yesufu Maduga v. Hamza Kofar Bai (1987) 3 NWLR (Pt.62) 635 or that it is either excessive or erroneous (see Ekpe v. Fagbemi (1978) 3 SC 209) or further still, that there has been a wrong exercise of discretion in the award.”
In short, the appellate court is bound to intervene and set aside or reduce or vary in whatever manner it decides once the appellant can show that the award is arbitrary, excessive, erroneous or that there has been a wrong exercise of discretion in the award.
Thus, following the above principle laid down by the apex court, in Merchandani v. Pinheiro (2001) 3 NWLR (Pt. 701) 557 at 577, (2001) FWLR (Pt. 48) 1307, the Court of Appeal had occasion to consider the principle of award of damages in libel suits. The court stated as follows:
“In the case of McCarey v. Associated Newspapers Ltd. (No.2) (1965) 2 QB 86 at 104, Pearson, J. opined that in a case where damages are at large as in a libel case, the factors to be taken into account include ‘not only actual pecuniary loss and anticipated pecuniary loss or any social disadvantage which result but may include the natural injury to his feelings”.
The learned trial Judge clearly took respondent’s injured feelings into account when, in her judgment, she said at p. 80 of the record that …all these factors show that the defendants did not show any remorse and did not care whether or not the plaintiff’s reputation or feeling was injured. Other factors which the courts have considered in assessing damages in libel cases are the social standing of the plaintiff and the rate of inflation which has adversely affected the value of the national currency. See Daily Times v. Williams (1986) 4 NWLR (Pt. 36) 26. I am of the opinion that the N5 million awarded is most justified, having regards (sic) to the unchallenged evidence of the respondent’s social status.”
The court further held at page 1326 that:
“Libel is actionable per se. Proof of damages is unnecessary. The reason is that every libel is a civil wrong and the law implies general damages. See Ejabulor v. Osha (1990) 5 NWLR (Pt.l48) 1 at 15.”
In an earlier case, the apex court again in His Highness Uyo I v. N.N.P.L. in Re Felix Egware, (1974) N.S.C.C. 304, exposed the principle thus:
“…Whatever method of assessment is employed, a great part of the exercise of assessment must be arbitrary but the entire exercise must at all stages have reference to the evidence in the case and the subject matter of the action. Such an award must, be adequate to repair the injury to the plaintiff’s reputation which was damaged; the award must be such as would atone for the assault on the plaintiff’s character and pride which were unjustifiably invaded, and it must reflect the reaction of the law to the imprudent and illegal exercise in the course of which the libel was unleashed by the defendant.”
Also in Offoboche v. Ogoja Local Government (2001) 16 NWLR (pt. 739) 458 at 492, (2001) FWLR 1051, the Supreme Court said:
“to the extent that the person who has injured him in his reputation must pay for the injury that the plaintiff has suffered, there is an element of compensation in the award of damages made, but that is usually not on the basis that such would restore the plaintiff to the position he was before he was defamed, as if he had not been defamed, where the injury he has suffered did not lead to pecuniary loss.
That the appellant in this case has acquired a good reputation and dignity and that he had by the libels been injured in his reputation, dignity and feelings, there can be no doubt. His claim for damages are for non-pecuniary loss consequent on the injury to his reputation.
No doubt, the appellant has suffered some degree of loss of social esteem by being associated with some alleged forged document, although there was no allegation that he was accessory to such forgery.
The injury to his feelings is manifested by his efforts to clear his name by the protest letters that he wrote and his general psychological re-action to the entire incident. The natural grief and distress to which he may have been put by libellous publications are elements that fall to be taken into account. See McCarey v. Associated Newspapers (1965) 2 QB 86, 104-105″
See also the recent judgment of this court in the (unreported) Appeal No. CA/I/80/95 delivered at Ibadan on 25/3/03.
A brief recourse to the records in this case showed that the learned trial Judge had before him, evidence that clearly should have influenced him to award a far more adequate sum as compensation.
Such evidence include the following where:
1. PW4 gave evidence that he read the publication and stated as follows:
”I was embarrassed and upset because I regard Professor West as a role model.” He was not cross-examined on this evidence. (See page 86 lines 2324 of the record).
2. PW1 tendered the publications. Plaintiff himself stated in evidence as follows:
(a) His reputation and standing in society as a very prominent national and international figure. (See pages 28-29, 70-71 of the record).
(b) On the attitude of defendants when plaintiff demanded an apology – in fact, plaintiff stated:
”The attitude of the defendants since my counsel wrote the letter of 9.9.96 has been most unfriendly.They even cartooned me. They wrote articles against me. They have been relentless in their ridicule of me. The defendants have not rendered any apology to me.” (See page 77 lines 14-19 of the records).
The learned trial Judge on page 123 lines 13 to the end reviewed the evidence briefly before finding the libel proved thus:
“The statement that the plaintiff was sacked from the Ministry of Petroleum Resources is obviously false as shown by the evidence of the plaintiff which was not contradicted by the defence.
Indeed, the defendants called no evidence so that their pleadings go to no issue. The plaintiff was in fact deployed to the Ministry of Mines and Power.
I find the statement to be defamatory of the plaintiff.
The defendants were called upon by letter dated 9th September, 1996, to retract the statement. They neglected and failed to retract same. I find the plaintiff’s claim for libel proved in this regard.”
However, when it came to the quantum of damages, the court changed gear when it held thus:
“As to the quantum of damages, there was no evidence before me that the plaintiff was injured in his reputation as an astute social figure. The first and fourth plaintiff witnesses did not by reason of the publication, cease to give the plaintiff the respect they were giving him before they read the words complained of. There was no evidence in the defendant’s publication which aggravated damages. On the basis of these, I give judgment to the plaintiff in the sum of N10,000.00 only”
It is surprising to observe that the trial Judge abandoned all the evidence above to hold that there was no evidence that plaintiff was injured in his reputation as an astute social figure. The admission that the plaintiff is an astute social figure having been made by the trial Judge, it is clear that he ought to have gone on to award a far higher sum in damages. Further, clearly PW4 stated his upset and embarrassment on the publication because of the respect he had for plaintiff. From the foregoing, I am of the view that the learned trial Judge was in error to hold that no evidence exists aggravating the damages. The evidence quoted above (contained in page 71 lines 14-19 of the record) clearly should aggravate the damages awarded.
The evidence of failure of the defendants to retract the offensive publication after the receipt of the letter dated 9th September, 1996 which the trial Judge found made him find the libel proved is enough aggravating evidence. It is also surprising to note that after the evidence of PW1 & PW4 (supra), the learned trial Judge could again change gear to hold that:
”The first and fourth plaintiff witnesses did not by reason of the publication, cease to give the plaintiff the respect they were giving him before they read the words complained and to say that there was no evidence in the defendants’ publication which aggravated damages.”
In my view, this finding of the learned trial Judge is not in tune with the evidence before the trial Judge. In the circumstance I hold that the appellant in this case has acquired a good reputation and dignity and had by the libel been injured in his reputation, dignity and feelings. The natural grief and distress to which he may have been put by this libellous publication are elements that fall to be taken into account. (See McCarey v. Associated Newspapers (1965) 2 QB 86, 104-105 cited with approval by the Supreme Court in Offoboche v. Ogoja Local Government (supra).
In the light of the foregoing, I hold that from the evidence of PW1 & PW4 which the trial court accepted and later denied or neglected, there is evidence in the libellous publication which aggravate damages such that the defendants who had injured the appellant in his reputation must pay for the injury the plaintiff/appellant has suffered. This will bring out the element of compensation in the award of damages in the instant case.
It is trite, as in the instant case, that in libel cases, once libel is proved, damages is presumed, hence, there is no longer any need to prove actual damage. See Cross River State Newspapers Corporation v. Mr. J. L Oni & Ors. (1995) 1 NWLR (Pt. 371) 270, (1995) 1 SCNJ 218; (1995) 26 LRCN 51. In view of the evidence which aggravate damages in this libel proved which the trial court glossed over, it is clear that the award of damages here had been shown by the appellant to be arbitrary, erroneous and based on a wrong exercise of discretion, it is thus a deserving case in which the Court of Appeal will and is duty bound to intervene to set it aside, reduce or increase it. See Nka v. Onwu (supra).
In the light of the foregoing, I resolve this sole issue in favour of the appellant and against the respondent.
In sum, this appeal is meritorious and it is allowed. The damages awarded by the trial court being shown by the appellant herein to be arbitrary, erroneous and based on a wrong exercise of discretion is hereby set aside. In its place, judgment is entered to the plaintiff in the sum of N300,000.00 only. Costs of N5,000.00 is awarded in favour of the appellant and against the respondents.
Other Citations: (2003)LCN/1373(CA)