Dayo Duyile & Anor V. Kelly Ogunbayo & Sons Ltd. (1988) LLJR-SC

Dayo Duyile & Anor V. Kelly Ogunbayo & Sons Ltd. (1988)

LawGlobal-Hub Lead Judgment Report

M. A. BELGORE, J.S.C.

In a publication of the “DAILY SKETCH” newspaper, dated 25th day of November, 1977, at the time when 1st appellant was its editor, it was inter alia written of the respondent as follows:

“Ogun State Price Board has announced that the sales of commodities worth N29,I33.68 will take place today at the stores of Kelly Ogunbayo and Sons Ltd., No.2 Ibadan Road, Iperu Remo, near Sagamu and starting at 9.00 a.m. (sic).”

The publication was headed in bold letters “PRICE CONTROL TO SELL N29,000.00 HOARDED BEER.” The respondent wrote to the first appellant demanding an apology claiming that the said publication complained of was defamatory. That was on 21st day of December, 1977; and by 11th January, 1978 the final reply of the appellants was that the publication was not defamatory as, they contended, it was a true reproduction of public announcement by Ogun State Price Control Board.

It must be pointed out that at the trial of the action, on libel before the High Court at Sagamu, it was in evidence that the appellants never had in their possession the alleged announcement by the Price Control Board. Secondly, it was evident that though the respondent company was tried for hoarding beer, it was discharged and acquitted and was therefore never found guilty of an offence under the Price Control Decree 1977.

Thirdly, it was after litigation was commenced that the appellants wrote on 3rd April, 1978 to Ogun State Ministry of Local Government and Information requesting for a copy of the announcement by the Price Control Board, which was duly sent on 17th April, 1978.The learned trial Judge, after hearing all the evidence held that the publication complained of was defamatory and that it was libellous of the respondent company. He further held it was published recklessly as the appellants had not by the time they published, seen the announcement by the Price Control Board, otherwise they did not have to ask for a certified copy from the Ministry.

On the question that the publication though defamatory, could be covered by privilege, the trial Judge dealt extensively on this subject. The law governing qualified privilege is clearly stated in Section 16 of the Defamation Law Cap. 33 of Laws of Ogun State 1978:

“16 (1) Subject to the provisions of this section, the publication in a newspaper of any such report or other matter as is mentioned in the Schedule to this Law shall be privileged unless the publication is proved to be made with malice.

(2) In an action for libel in respect of the publication of any such report or matter as is mentioned in Part 2 of the Schedule to this Law the provisions of this section shall not be a defence if it is proved that the defendant has been requested by the plaintiff to publish in the newspaper in which the original publication was made a reasonable letter or statement by way of explanation or contradiction, and has refused or neglected to do so or has done so in a manner not adequate or not reasonable having regard to all the circumstances.

(3) Nothing in this section shall be construed as protecting the publication of any matter the publication of which is prohibited by law, or of any matter which is not of public concern and the publication of which is not for the public benefit.

(4) Nothing in this section shall be construed as limiting or abridging any privilege subsisting at common law immediately before the commencement of this Law.”

The publication by the Price Control Board enjoys qualified privilege only if it was published without malice. The question here is that the appellants published without seeing the alleged announcement and the learned trial Judge held that that single act alone removed any cover of privilege from their publication. The most surprising aspect of this case is that the appellants without seeing the announcement and when confronted with respondent’s letter in line with S.16(2) of Defamation Law, maintained that their publication was not defamatory.

At the Court of Appeal, ten grounds of appeal were argued; the general ground and the rest additional grounds of appeal on error of law filed with leave. The Court of Appeal upheld the decision of the trial Court that the main plank of the defence, qualified privilege, could not avail them in that the publication complained of was not based on the announcement by the Price Control Board. As the defence was not available to the appellants, the respondent was never placed in a position to invoke the plaintiffs’ right in law to file a reply to such a defence alleging in the process express malice as in S.B. Bakare v. Ado Ibrahim (1973) 6 SC. 205. The Court of Appeal allowed the appeal in part – it found no justification for the award of N50,000.00 each for (a) Natural grief and distress and (b) Social disadvantage. Also the remaining N100,000.00 awarded as loss of profit was reduced I to N20,000.00 and as there is no cross appeal by respondent, this reduction could not be challenged in this Court. Similarly this Court has not been moved by the respondent to vary the judgment as provided by Order 8 Rule 3(1) of the Supreme Court Rules 1985 and as such the reduction of general damage by the Court of Appeal cannot now be challenged.

The appeal before this Court has taken a new dimension. Grounds 1-7 complained on the award of damages of N20,000.00, being the reduction of N100,000.00 originally awarded as pecuniary loss. The appellants formulated the issue for determination in their brief as follows:

“B. ISSUES ARISING IN THE APPEAL

(1) Whether or not the publication complained of (exhibit ‘D’) was based on the bulletin by the Ogun State Ministry of Information (Exhibit ‘A’) in which case it would be privileged and no liability would attach or it was not based on it, in which case it was not privileged.

(2) Whether the claim for loss of profit is in the nature of special damages which should be specifically pleaded with particularity and strictly proved or it is in the nature of general damages which requires no such particularity of pleading or strictness of proof.

(3) If the said claim is in the nature of special damages requiring specific pleading with particularity, whether or not the pleading of the loss of profit contained in the statement of claim met that requirement.

(4) If the court found that it was general damage that was claimed, whether it was proper to have admitted evidence of actual loss.

(5) Whether loss of profit and diminution of turnover are one and the same thing and whether evidence of proportion of diminution in turnover would amount to prove of equivalent proportion of loss of profit.

(6) Whether in the absence of the “slightest details” that would make evidence of loss of profit “probably believable” it was proper for the court to say it could not uphold the award of N100,000.00 as loss of profit since it was arbitrary and yet go on, in the absence of any rationale or premises to make an equally arbitrary award of N20,000.00 or whether the proper approach, having found no basis for calculation of the loss of profit, was not to dismiss the claim under that heading.

(7) Whether or not the award of N450 costs for a single adjournment is reasonable and whether the Appeal Court should feel obliged to uphold the award (which they accepted to be high) merely because the judge gave reasons for it or the Justices of the Appeal Court have a duty to inquire into the reason-given for the seemingly high award to determine if it was valid reason (in which case the award would be reduced).

(8) Whether it was proper for the Court of Appeal to consider one of two complaints in a ground of appeal and remain silent on the other complaint and yet dismiss the ground of appeal entirely.

(9) Whether having decided that the award of N1,000 as costs during judgment must be reduced in view of the reduction of the damages from N200,000 to N20,000 it was proper for the Court of Appeal to have left the cost unassessed and not to have substituted its own award for the sum of N1,000 which it set aside.

(10) Whether on the whole, the publication was defamatory in view of the facts and circumstances of the case, and if so whether the defence of qualified privilege had not been effectively set up and finally whether the award of damages as well as that of costs for adjournment can stand on the principles on which they were made”

The first point taken was that the findings of the trial Court and Court at Appeal that Exhibit D, the publication complained of, was not based on Exhibit A, the announcement by the Price Control Board. Whilst conceding that Exhibit D is libellous, Professor Adesanya, of Counsel for the Appellants, submitted that the Court of Appeal ought to have held that it was covered by qualified privilege. The concurrent findings of the trial Court and the Court of Appeal was that Exhibit D was published by the appellants without seeing Exhibit A.

That being the case, could this Court hold that the stand taken by the two lower Courts is perverse in the light of all the evidence before the trial Court Can a libellous publication be cove,red by the privilege in a document not seen by the appellants The preponderance of evidence at the trial Court points to the fact that the appellants saw Exhibit A for the first time not before publication of Exhibit D, not before the letter demanding amends was written, not even before the suit leading to this appeal was filed. It was after the litigation was commenced that the appellants wrote for and obtained a copy of Exhibit A which they as defendants at the trial tendered.

To put it mildly, the appellants, as it would appear in the record before the Court, published recklessly on some hearsay with a bit of mischief in a banner headline portraying the respondent company as being guilty of hoarding which was a criminal offence under the Price Control Decree 1977. The appellants now submit that the trial Court as well as the Court of Appeal, ought to have inferred that Exhibit D was based on Exhibit A. Apart from the inference that could be legally drawn from certain facts, e.g. in evidential presumptions, it is not the duty of any court to help any party to litigation to arrive at a conclusion on which no evidence is led. It is for each party to make his own case and as the appellants never justified by evidence their assertion that Exhibit D was based on Exhibit A, the Court certainly would not embark on adventure of making out of the evidence what was not proved. Therefore this Court will not interfere with the concurrent findings of the two lower Courts on facts unless the findings are either perverse, or it legal as being based on inadmissible evidence or are completely not supported by any evidence or based on matters in evidence but unpleaded. (Fashanu v. Adekoya (1974) 6 SC.83, 91; Yassin v. Barclays Bank D.C.O. Ltd. (1960) 1 All NLR 171; Wuru v. Ekwonyeso (1978) 1 SC.37, 46, 47; Balogun v. Agboola (1974) 10 SC.111, 118, 119; Onowon & Anor. v. Iserhien (1976) NMLR 263). Surely an appellant seeking to upset two concurrent findings of the lower courts in the absence of the above, beats about the bush for it is in such cases impossible to manifest exceptional circumstances required to set aside those findings. Lakoye v. Oloja (1983) 8 SC.61; Enang v. Adu (1981)11-12 SC. 25, 42; Ojomu v. Ajao (1983) 9 SC.22, 53; Nwadike v. Ibekwe (1987) 4 NWLR 718.

What is remarkable about this publication giving rise to this case is that on its own Exhibit A is not headed and the best one can read into it is that beer would be sold at the respondent’s stores. But Exhibit D went further by the headlines mentioning sale of hoarded beer. I find no substance in ground 9 first canvassed and the ground therefore fails. The cases cited in appellants’ brief, to wit, Fatoyinbo v. Williams 1 FSC. 87,89; Fabunmuyi v. Obaje (1968) NMLR 242; Chief Eba v. Chief Warri Ogodo (1984) 4 SC.84 are not relevant to this case.

The remaining grounds centre on quantum of damages. The Court of Appeal rightly allowed the appeal in respect of natural grief and distress, and social disadvantage for which the trial Court awarded N50,000.00 each.

The remaining grounds centre on quantum of damages. The Court of Appeal rightly allowed the appeal in respect of natural grief and distress, and social disadvantage for which the trial Court awarded N50,000.00 each.

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 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 objectives. 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 injuried 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 earning, 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). For pecuniary loss, the trial Court awarded N100,000.00 to the company. The appellants were busy contending that though the publication was defamatory, it was covered by qualified privilege and virtually left uncontested the claim for general damages for N500,000.00. The Court of Appeal felt the trial Court’s award of N100,000.00 was too high and reduced it to N20,000.00. There is no cross appeal by the respondent and there is no application before this Court to vary the judgment of the Court of Appeal as I pointed out earlier. Certainly the award of N20,000.00 is not too high for the blatant defamation and for the loss to the company. What was awarded in the trial court was not in the nature of special damages, it was strictly in conformity with the claim made for general damages and no special proof was needed.

To my mind this appeal lacks substance on all the grounds canvassed. The appellants were reckless in the extreme by publishing what the respondent found offensive and defamatory. They were not contrite throughout the trial and have been lucky to have got away with the order to pay only N20,000.00 as damages. I dismiss this appeal with N500.00 costs and uphold the decision of the Court of Appeal dated 22nd of June, 1984

ESO, JSC.: I had a preview of the lead judgment which has just been delivered by my learned brother Belgore JSC. and I am in complete agreement with his reasoning and his conclusions.

I think it is a great pity there has been no cross appeal in regard to the award of damages in this case as I am not clear in my mind as to the reasoning of the Court of Appeal in reducing the award of N100,000.00 made by the trial judge for loss of profit to N20,000.00. But then it would not be the business of this Court if there is not complaint laid before it by the Respondent as this Court is not to ferret remedy for those who are apparently satisfied with the decision of the lower court.

Subject to this court I too will dismiss the appeal. I abide by all the orders made in the judgment on my learned brother, Belgore, J.S.C.

SC.197/1985