J.I. Okolo v. Midwest Newspaper Corporation & ORS. (1977)
LawGlobal-Hub Lead Judgment Report
A. O. OBASEKI, J.S.C.
This appeal is against the dismissal of the plaintiff’s claim for 50,000pounds damages for libel by Kassim J. in his judgement in suit No. LD/602/71 delivered on the 1st day of February, 1974 in the High Court at Lagos.
More particularly, the claim endorsed on the Writ of Summons reads:
“1. The Defendants are the proprietors, Administrators and Editors of the Nigerian Observer, a Newspaper which has a larger circulation throughout Nigeria, especially in Lagos, Midwest, Northern Nigerian States and the East Central State.
- In the issue of Saturday, July 31, 1971, the Defendants falsely and maliciously printed and published of and concerning the plaintiff the words following, that is to say in the 1st column page 4 of that issue, to wit,-viz:
2,000.00pounds Suit Adjourned
A Lagos High Court has adjourned hearing till September 13 in the 2,000.00pounds embezzlement suit against a Lagos Building Contractor, Mr. J.I. Okolo”
- The above published words impute a criminal charge or offence against the plaintiff which is false and malicious.
- By the publication of the said words, the plaintiff has been much injured in his credit and reputation and has suffered damages”.
Pleadings were ordered, filed and duly delivered and the material facts which formed the basis of the claim were pleaded in paragragh 6, 7, 9, 11 of the Statement of claim as followings:
- The said Newspaper ‘The Nigerian Observer’ published by all the four defendants jointly and severally have a wide and large circulation at Lagos and throughout the whole of Nigeria.
- In the said issue of ‘the Nigerian Observer’ of Saturday, July 31st, 1971, the defendants jointly and severally, falsely and maliciously printed and published of and concerning the plaintiff the words following, that is to say, in the first column of page 4 of that issue, to wit viz: 2,000.00pounds (Two thousand pounds only) suit adjourned”. “A Lagos High Court has adjourned hearing till September 13th, (hearing) in the 2000.00pounds (Two thousand pounds only) embezzlement suit against a Lagos building contractor, Mr. J.I. Okolo”.
- The above published words impute a criminal charge or offence against the plaintiff, which is false and malicious.
- The plaintiff, as a result of the above mentioned libelous matter, has lost a of business contracts and goodwill in business throughout the different parts of Nigeria, where the said Newspaper circulates and is read thereby causing him a great financial loss.
11 By the publication of the said words, the defendants allege dishonesty against the plaintiff in his trade and business both as a businessman and as a general contractor which includes building, engineering and various types of contract and injury to his person, credit, reputation which caused him so much damage as indicated and pointed out in paragraph 6 of the Statement of Claim”.
The publication was admitted by the 1st, 2nd and 4th defendants in paragraphs 4 and 5 of their pleadings but denied in paragraph 6 and 7 that the said publication had any defamatory meaning. The said paragraphs 4, 5, 6 and 7 of the Statement of Defence read:
“4 The 1st, 3rd and 4th defendants admit paragraphs 2, 3, 4, 5, and 6 of the Statement of Claim;
- The 1st, 3rd and 4th defendants admit publishing the words sot out in paragraph 7 of the Statement of Claim but say that the said words form part of the entire publication on the matter as contained in page 4 column 1 of the Nigerian Observer issue of July 31, 1971. The said defendants will rely on the entire publication
- The words as contained in the entire publication do not mean what is alleged in paragraphs 8 and 11 of the Statement of Claim.
- The said words without the said alleged meaning are not libel.”
The plaintiff gave evidence and called 3 witnesses – Godfrey Eze, Ree Onyezenez and Catherine Okolo who also testified. The defence adduced no evidence and after Counsel for the parties had address the Court, the learned trial judge gave a considered judgement wherein he held that
“In my capacity as a judge, I am of the opinion that, the said words complained of, stated as they are out of con, are capable of conveying defamatory meaning: but in my position as a jury, I take into consideration the letters, figures and words, all very bold, which form the heading of the publication to wit “$2,000 suit Adjourned” and the paragraphs which follow the words in question and I doubt if they in fact convey a defamatory meaning. “… I dismiss plaintiff’s claim and proceed to assess costs”.
Five grounds of appeal were filed and argued together, but the main point canvased before us is that “The learned trial judge having held that as a matter of Law, the words complained of were capable of defamatory meaning, there being no evidence from the defence, there was no evidence on which he could find as a fact (from the jury box) that the words were not defamatory”.
For a better appreciation of the points raised in the grounds, we hereunder set out the 5 grounds of appeal in full
“(1) The leaned trial judge misdirected himself in law and in fact by saying “but in any my position as a jury, I take into consideration the letter, figures and words, all very bold which form the heading of the publication to wit 2000POUNDS SUIT ADJOURNED, and the paragraphs which follow the words in question and I doubt if they in fact convey a defamatory meaning and the defendants must have the benefit of the doubt”;
in that he had held already that the words complained of were capable of defamatory meaning and when they did convey defamatory meaning according to the evidence
(2) The learned trial judge erred in law and in fact in not entering judgement for the plaintiff when there was no evidence before him by the defendants, showing any defence to the action;
(3) The learned trial judge was in error in not entering judgement for the plaintiff as Exhibit ‘C’, the apology was evidence of admission of liability on the part of the defendants for libel complained of;
(4) The learned trial judge misdirected himself in law and in fact by saying that:
“However, they have not relied on in their statement of defence”
when his duty was to assess the merit of the case on the whole evidence before him and when no evidence was in fact led by the defendants.
(5) The judgement is against the weight of evidence”.
As already state, the learned Counsel for the appellant argued the 5 grounds together. He attacked the learned trial judge’s statement of law defining the duties of judge and jury on the ground that it only applies in trial of slander cases and not libel cases. The statement of law referred to reads:
“It is settled law that if any defamatory words were written of or concerning the plaintiff so as to impute a crime for which he can be made to suffer physically by way of punishment, those words are actionable per se without proof of special damage.
It is also trite law that the question, whether words which are complained of are capable of conveying a defamatory meaning, is a question of law and is therefore one calling for the decision of the Court, and that if the words are so capable then it is a question for the jury whether the words do in fact convey a defamatory meaning”.
We find ourselves unable to find any error in law in the statement of the duties of the judge and the jury hearing cases of libel or slander. The only distinction without a difference which the learned Counsel for the appellant made is that although generally defamatory words in-fugative form are not actionable without proof of special damage, words imputing crime in the plaintiff whether in permanent form (such as writing) or in fugitive form are actionable per se, i.e. without proof of special damage. The fact that words alleged to be defamatory are published in permanent form does not terminate the duty of a judge to ascertain whether as a matter of law the words are capable of the defamatory meaning ascribed to them.
The interpretation of the words used and the ruling by the learned trial judgement that the words are capable of the defamatory meaning ascribed does not relieve the jury of the function of determining whether in fact the words did convey the defamatory meaning. In the case of Lewis v. Daily Telegraph Ltd. (1964) AC 234 Lord Reid dealing with the respective duties of judge and jury said:
“There is no doubt that in actions for libel, the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense.
“The ordinary man does not live in the ivory tower and is not inhibited by the knowledge of the rules of construction. So he can and does read between the lines in the Light of his general knowledge and experience of wordly affairs…What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meanings of the words …But more often the sitting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning…. What those inferences should be is ultimately a question for the jury but the trial judge has an important duty to perform.
Generally the controversy is whether the words are capable of libelous meaning at all and undoubtedly it is the judge’s duty to rule on that … I shall have to deal later with the test which he must apply …
The leading case is Capital and Counties Bank Ltd. V. Henty & Sons, In that case, Lord Selborne L.C. said:
“The test according to the authorities, is, whether under the circumstances in which the writing was published reasonable to whom the publication was made would be likely to understand it in a libelous sense…
What the ordinary man not avid for scandal would into the words complained of must be a matter of impression. I can only say that I do not think that he would infer guilt of fraud merely because an inquiry is on foot. And if that is so, then, it is the duty of the trial judge to direct the jury that it is for them to determine the meaning of the paragraph but that they must not hold it to impute guilt of fraud because as a matter or law the paragraph is not capable of having the meaning “. (Underlining is ours)
It is the broad impression conveyed by the libel that has to be considered not the meaning of each word under analysis (per Lord Devlin in Lewis v. Daily Telegraph Ltd. (Supra) at p. 285).
The words used must not be taken out of con.
On this point, the Lord Chancellor (delivering the judgement of the Board of Privy Council) in Australian Newspaper Company v. Bennett (1894) AC 284 at 288, (a case where the word Ananias was used in relation to the plaintiff) said:
“Whether a word is, in any particular instance, used, and would be understood as being used for the purpose of conveying an imputation upon character must be for the jury.
In the present case, it is impossible to consider the use of the word detached from all that accompanied it in the newspaper issued by the defendant. The language used must be looked at as a whole in considering whether the jury could reasonably come to the conclusion that the use of the word was not intended to convey, and that those reading the newspaper would not understand it as conveying the serious imputation suggested”. (Underlining is ours)
Having disposed to the argument on the statement of law and respective duties of the judge and jury in libel actions, we now turn to the issues raised by the pleadings and the evidence. The publication of the words were admitted but defamatory meaning set out in paragraphs 8 and 11 were denied by the respondents.
The questions that naturally arose for decision were
(1) Did the published words impute a criminal charge or offence against the plaintiff
(2) Did the words allege dishonesty against the plaintiff in his trade and business. (He pleaded that he was a businessman and general contractor whose business includes building, engineering and various types of contracts)
A 2,000.00pounds suit is a civil action; it is not a criminal action. Embezzlement in the circumstances in which it was used imputes no crime. It could not be construed as a suit imputing in the appellant the offence of embezzlement in view of the particulars given, which clearly indicates that the claim was for return of money furnished, or “advance” given, for the execution of a contract. The particulars given in the publication read:
“The action is instituted by Chief T.O.S. Benson on behalf of a prominent Lagos business tycoon Mr. G.C. Aghadimo.
The amount, claimed Chief Benson was an advance to the defendant (a contractor) in respect of the East Central State Government contract for repair on Cold Store, Enugu.
Mr. Justice T.G. Gomez, sitting at St. Joseph’s Hall, Obalende, adjourned the case for further hearing”.
Embezzlement taken in isolation, may convey an imputation of a criminal offence but 2000pounds Embezzlement Suit followed by the explanation that the amount claimed was an advance cannot and do not impute any criminal offence in the plaintiff/appellant.
As already state above, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis.
Finally, it is settled law that the words to be actionable must input in the plaintiff a criminal offence (per Alderson B in Heming v. Power (1842) to M & W at page 570). No crime or offence was pleaded and none was given in evidence.
Parties are bound by their pleadings and since no crime or offence was pleaded none can be given in evidence. From our reading of the publication, we are unable to agree with Counsel for the appellant that the publication Exhibit 1 tendered in evidence on the face of it disclosed any criminal offence. With regard to the necessity for pleading the crime or offence alleged, Lord Devlin in the last two concluding paragraphs of his judgement in Lewis v. Daily Telegraph Ltd. At p. 286-287 said:
“In the result, I thing that all Your Lordships are now clearly of the opinion that the judge must rule whether the words are capable of bearing each of the defamatory meanings, if there be more than one, put forward by the plaintiff.
This supports indirectly my view on the desirability of pleading different meanings. If the plaintiff can get before the jury only those meanings which the judge rules as capable of being defamatory, there are good reasons for having the meanings alleged set out precisely as part of the record”.
We pause here to draw attention again to the passage in the judgement of the learned trial judge which reads;
“In my capacity as a judge, I am of the opinion that the said words complained of states as they are out of con are capable of conveying defamatory meaning but in my position as a jury, I take into consideration the letters, figures and words, all very bold, which form the heading of the publication to wit 2000pounds suit Adjourned” and the paragraphs which follow the words in question and I doubt if they in fact convey a defamatory meaning”.
Our reading of the passage leaves us with the settled view that, although he has not done so in a very satisfactory manner, he was saying in effect that the publication, when read as a whole, was incapable of conveying to a reasonable jury any defamatory meaning.
Even if the above passage were to be regarded as a misdirection, the Court of appeal is not bound to grant a new trial on the ground of misdirection where no substantial wrong or miscarriage of justice has thereby been occasioned; and we find none here. (See Art. 1396 of Gatley on libel and Slander 7th Ed. P. 572-573). Accordingly, the grounds of appeal fail
We find no merit in this appeal and we hereby dismiss it with costs assessed at N175.00.
Other Citation: (1977) LCN/1956(SC)