Ferdinand Ekpo Mbang V. Guardian Newspapers Ltd & Anor (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MASSOUD ABUDULRAJMAN OREDOLA, J.C.A.(Delivering the Leading Judgment)

The appellant in this appeal was the plaintiff in Suit No. C/91/92 at the Calabar Division of the High Court of Cross River state. His claim which he commenced by a writ of summons and statement of claim filed on 6th October, 1992 was for N5, 000,000.00 damages against the respondents for libel, allegedly contained in the 8th May, 1992 edition of the Guardian Newspaper, published by the respondents. He also sought an order of injunction restraining further publication of the material.

The respondents denied the allegation through their statement of defence and further set up the defence that the words complained of were fair comments made in good faith and without malice and upon a matter of public interest in the investigation by the Cross River State House of Assembly. At the hearing, witnesses were called by the parties and in the lower courts judgment the sum of N750,000.00 was awarded to the appellant as damages as a result of the said publication. The appellant was dissatisfied with the assessment and award by the lower court and appealed to this court on three grounds. The respondents too felt aggrieved with the entire findings of the learned trial judge and filed their appeal originally numbered as CA/C/100/2008 but later by order of this court consolidated with the appellant’s appeal as CA/C/98/2008. The Appellants in CA/C/100/2008 will still be called the respondents/cross appellants while the appellants in CA/C/98/2008 will be referred to as appellant/cross respondent.

In his brief of argument, the appellant/cross respondent formulated one issue for determination. It goes thus:

“Whether the trial judge was right in the assessment of the quantum of damages to which the plaintiff was entitled.”

Learned appellant/cross respondents counsel contended that the assessment by the lower court was based on factors outside the legally established principles while the award of N750,000.00 was too negligible in the circumstances of the case. In their response to that contention, the respondent/cross appellant argued that the appellant/cross respondent did not fault the summary of the evidence upon which the court based its assessment and award and urged this court to dismiss the appeal.

Regarding the cross appeal, the respondents/cross appellants raised two issues in their brief of argument as follows:

1. Whether the publication was defamatory and if so whether the unrebutted defence of fair comment did not avail the appellant.
2. Whether the judgment of the learned trial judge ordering the appellants to pay N750,000.00 in damages based on an unsigned amended statement of claim was valid.

The learned counsel for the respondents/cross appellants contended on the first issue that the appellant/cross respondent who was an employee of Cross Lines as the serving manager did not prove that the words referred to him and so did not establish a vital ingredient of defamation, there being no allegation of comment against his person and that he had merely gone out of his way to overdramatise, sensationalize the issue and ascribed a meaning that is a far cry from the publication itself. He argued also that in the entire circumstances of this case the defence of fair comment was well made out and avail the respondents/cross appellants since the appellant/cross respondent failed to rebut that defence by failing to deliver a reply giving particulars of express malice as required under Order 25 Rule 23 (2) of Cross River State High Court (Civil procedure) Rules and the case of Bakare V. Ibrahim (1973) 8 NSCC 458 at 462.

On Issue 2, the respondents/cross appellants, counsel submitted that the judgment of the rower court was based on a defective amended statement of claim and hence that judgment was legally invalid. He cited Aunam (Nig) Ltd. V. Leventis Motors Ltd. (1990) 5 NWLR (Pt. 151) 458 and urged this court to set aside the judgment of the lower court in its entirety. Responding to this, the appellant/cross respondent formulated three issues for determination:

1. Whether the learned trial judge was right in holding that the publication was defamatory of the plaintiff.
2. Whether the learned trial judge was right in holding that the defence of fair comment did not avail the defendants.
3. Whether the learned trial judge was right to rely on and use the plaintiff’s amended statement of claim deemed properly filed and served by order of court.

Arguing Issue 1, the learned counsel submitted that in order to establish defamation, the words complained of need not necessarily refer to the plaintiff by name, so long as the words could be understood by reasonable persons to refer to the plaintiff. He cited Dalumo V. The Sketch publishing Co. Ltd. (1972) 5 SC 308; F.B.N. Plc V. Aboko (2007) 1 NWLR (Pt. 1014) 129, and stated that the publication in this case referred to the appellant/cross respondent in his full name and status.

On Issue 2, the learned counsel submitted on the authority of The Sketch Publishing Co. Ltd. Vs Ajagbemokeferi (1989) 1 NWLR (Pt. 100) 678 that for a comment to be regarded as fair with regards to a defamatory publication, it must be based on facts truly stated. He said that the respondents/cross appellants merely raised fair comment but failed to discharge the burden of proof on them in that regard.

On Issue 3, the learned counsel contended that since the respondents/cross appellants had failed to appeal against the ruling of the lower court that granted leave to amend the appellant/cross respondent’s statement of claim on 18th May, 2005, that they are now estopped from raising that issue in this appeal since equity does not aid the indolent. Again the appellant/cross respondent had canvassed as a preliminary point that the first ground of appeal of the respondent/cross appellants appeal had been abandoned as no issue was formulated therefrom. Hence, it should be struck out as an incompetent ground. In the respondents/cross appellants reply brief, it was their response that ground one of their cross appeal had been well covered by Issue 1 in their brief of argument, and even if the said ground is struck out this would not affect the case of the respondents/cross appellants which can be decided on the remaining grounds.

On this preliminary objection, what the appellant/cross respondent is objecting is the incompetence of ground one of the respondents/cross appellants’ appeal and not the competence of any of the issues formulated by them and the reason for the supposed incompetence of that ground of appeal is that no issue was formulated directly therefrom.

It is the established practice that more than one issue for determination should not be framed from one ground of appeal. Howbeit, an issue may encompass one or more grounds. See Agbetola V. Lagos State Executive Council (1991) 4 NWLR (pt. 188) 664; Osazuwa V. Edo State Civil Service Commission (1999) 4 NWLR (Pt. 597) 155/161.