Jonathan Ishaku & Anor V. Oluwole Aina (2003)

LawGlobal-Hub Lead Judgment Report

OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.

This appeal is against the judgment of the Oyo State High Court, Ibadan as contained in the judgment delivered on the 10th of May, 1994. According to the brief facts of the case – the plaintiff before the lower court, Oluwole Aina – now respondent in the instant appeal claimed against the defendants – Jonathan Ishaku and Champion Newspapers Limited, who are the appellants, jointly and severally for the under-mentioned reliefs:-

1. N1, 000,000 (one million Naira) being general damages for libel committed by the defendants when at page 3 of the Sunday Champion of June 19th, 1990 the defendants printed and published of and concerning the plaintiff the words to the following effect:-

‘Oyo – Ola Ogundipe reported minor cases of malpractices in some areas which nearly marred the exercise. A contestant for the NRC in the Ibadan Municipal Local Government, Mr. Oluwole Aina, was whisked off from the election venue at the instance of the administrative secretary to prevent the breakdown of law and order.”

2. Perpetual injunction restraining the defendant by themselves, their servants, agents, privies or otherwise however from publishing or further publishing the words complained of or any other words to the like effect of and concerning the plaintiff”.

Parties filed and exchanged pleadings. The plaintiff/respondent gave evidence and called four witnesses. The publication was tendered as exhibit A. The trial of this case was that the publication was meant to refer to him as involving in malpractice and was whisked away from the venue of the election by the police. The publication standing on its own would to a reasonable and intelligent man bear a defamatory meaning. The defence was however based on justification by which the defendants/appellants asserted and affirmed the truth of the publication.

In a reserved judgment, the learned trial Judge pronounced that the plaintiff’s action succeeds and he assessed N1,000,000 (One million Naira) general damages in favour of the plaintiff against the defendants/appellants jointly and severally, and granted perpetual injunction restraining the defendants by themselves, their servants, agent, and privies or otherwise howsoever from publishing or further publishing the words complained of or any other words to the like of concerning the plaintiff vide page 92 of the records.

Being dissatisfied with the said judgment the defendants have appealed to this court. They filed eleven grounds of appeal pursuant to the leave to amend granted by this court on the 11th of November, 1998. Parties settled records and exchanged briefs in compliance to the rules of this court. In arguing the appeal the appellants adopted and relied on the appeal deemed filed on 19/4/2000 in which they distilled five issues for determination as follows:-

(a) Whether the court properly evaluated the evidence placed before it when it held that the defence of justification did not avail the appellants?

(b) Whether from the circumstances surrounding this case DW3 was duty bound to have gone to the High Court Registry to cross-check particulars of the court’s order of 13/6/90?.

(c) Whether the learned trial Judge was right to have applied the provisions of section 137(1) now section 138(1) of the Evidence Act to this case when commission of a crime was not a fact directly in issue?.

(d) Whether the N1,000,000 (one million Naira) only awarded as damages was not excessive considering the fact that the trial court took into consideration irrelevant factors in the assessment of the quantum of damages?.

(e) Whether on the totality of evidence presented in this case, the decision of the court below is manifestly insupportable?

The issues flow directly from the grounds of appeal filed. The respondent in the brief filed on 19/6/2001 considered two issues only as arising for determination in this appeal which are:-

(1) Whether the appellants successfully proved the defence of justification relied upon by them in their pleading in the court below;

(2) Whether there are circumstances which would justify this appellate court in disturbing the award of damages made by the lower court;

This court thinking in line with the respondent’s counsel share the opinion that five issues raised by the appellants can be compressed into three issues which reads:-

(1) Whether the trial court properly evaluated the evidence placed before it when it held that the defence of justification did not avail the appellants?

(2) Whether on the totality of the evidence before the court at the trial, the decision of the learned trial Judge is supportable?

(3) Whether there are circumstances which would justify this appellate court in disturbing the award of N1,000.000 (one million Naira) damages awarded by the lower court.

Arguments on these three issues shall embrace all the five issues settled by the appellants.

On the first issue which relates to the defence of justification raised by the appellants, it was argued that the appellants in paragraph six of their statement of defence pleaded justification to which there was no reply by the respondent. At the trial, the appellants through their witnesses led credible evidence to substantiate the plea on the events which occurred during the event and venue of the election. Whereas the evidence of the plaintiff and his witnesses were incredible and fraught with contradictions. Such evidence was on the appearance of the respondent at the venue the reaction of the administrative secretary of NEC and members of the party and how the respondent was led out of the premises by policemen and his whereabouts thereafter. So as to avoid breakdown of law and order.

There was confirmation that the respondent was led away by policemen at the instance of the Administrative Secretary of Nigerian Republican Convention. The appellant referred to the testimony of witnesses on pg. 53 lines 9-10, pg. 53 lines 11-13, pg. 58 lines 2526, pg. 37 lines 6-8 of the record.

On the issue of court order the appellants were able to establish that participation of party members at the congress was upon presentation of accreditation certificate, whereas the respondent admitted on oath that he was present at the venue without an accreditation certificate hence he was not allowed to vote. The respondent did not send a copy of the court order to DW3 as promised but only showed him one vide page 62 line 24-29. PW1 confirmed in his evidence in chief on pg. 37 of the record that the respondent gave a copy of the court order to DW3. The appellants concluded that the learned trial Judge misconstrued and misapplied the principle of law relating to the plea of justification as a defence; where a defence of justification is raised, it is the broad and general impression conveyed by the publication complained of that has to be considered and not the meaning of each word complained of and taken out of con. The general applicable principle is that words complained of and published must be construed as a whole. In any action for defamation the truth of any imputation is a complete defence. The appellants referred to the cases of T.A.B. Adenipekun & 1 Or. v. George Adeparusi (1994) 2 NWLR (Pt.329) 705 at 718; Registered Trustees of Amore v. Henry Awoniyi (1994) 7 NWLR (Pt.355) 154 at 186; Okolo v. Midwest Newspapers Corporation & Ors. (1977) 1 SC 33.As regards the issue of court order which the respondent promised to send to the DW3 and he failed to do so, the learned trial Judge erroneously held that DW3 was duty bound to have gone to the High Court Registry with particulars of the court order of 13/6/90 to verify its genuiness or otherwise, on a Saturday that courts and court registry are closed to litigants and counsel. The learned trial Judge did not exercise his discretion judicially and judiciously in arriving at this conclusion.

The respondent replied that the learned trial Judge meticulously and dispassionately evaluated the uncontroversial evidence before the court and came to a correct decision that the defence of justification failed. The case of Dumbo v. Idugboe (1983) 1 SCNLR 29 at 51 was made a reference point in that the Supreme Court stated the law relating to the defence of justification there as follows:-

“To establish a plea of justification, the defendant must prove that the defamatory imputation is true. The defendant must justify the precise imputation complained of. In other words strict proof is demanded.

The defendant must prove the truth of all the material statement in the libel. To make a good plea of the whole charge, the defendant must justify everything that the libel contains which is injurious to the plaintiff”.

The case of A.C.B. Ltd. v. Apugo (2001) 5 NWLR (Pt. 707) 483, (2001) 84 LRCN 688 at 706 was also cited. The respondent contended that the precise imputation or everything that the libel contains which is injurious to the respondent and which the appellant had to justify are as contained in paragraph 5 of the statement of claim and these are:-

(a) That the respondent was involved in election malpractice;

(b) that the respondent attempted to mar the congress and the election thereat which is an offence punishable under the relevant decree;

(c) that the respondent caused or attempted to cause a breakdown of law and order and;

(d) that the respondent was arrested as a criminal, whisked off from the venue and detained pending trial.

The appellants failed to prove any of the foregoing. The evidence of DW1 and DW3 about what transpired at the scene was contradictory and unreliable, vide pages 51 and 58 of the record.

The court is urged to hold that the submission of the appellants to the effect that the defence of justification ought to have been upheld simply because the respondent did not file a reply to deny paragraph 6 of the statement of defence is erroneous and made in total ignorance of the law of pleadings. By virtue of Order 25 rule 10 of the Oyo State High Court (Civil Procedure) Rules, 1988 there is an implied joinder of issues on a statement of defence or on the last pleadings.

On the issue of court order the respondent held that no issue was joined on the contents, scope or validity of the court order in the publication, pleadings and evidence, any reference to it as the judgment being purely obiter is not appealable. The learned trial Judge was right in holding that the appellants had to procure the court order if it was useful to their case.

The learned trial Judge conclusion on the defence of justification was right – this court is urged to affirm same. On the second issue for determination the contention of the appellants was that considering the totality of the evidence before the court, the decision of the learned trial Judge cannot be sustained or is not supportable.

In considering the defamatory nature of the words complained the learned trial Judge restricted himself only to the evidence of the respondent’s witnesses PW2 and PW3, while considering only a fraction of the evidence of DW2 – who emphasised that he saw the plaintiff being led out by two policemen and some of his colleagues vide pg. 60 lines 7-9 of the record. The appellants branded the respondent as not being a witness of truth as he contradicted himself as to how he came in and out of the scene of the election, about certificate of accreditation and court order, so that the learned trial Judge ought to have regarded his entire testimony with utmost caution. It is the duty of the court to present a logical and dispassionate reaction on any conflicting facts before the court.

The court did not consider the evidence of the defendants in full and did not demonstrate how he in comparison came to believe the evidence of the plaintiff as against that of the defendants which made the judgment perverse and should be set aside by this court.

The appellant submitted that the learned trial Judge wrongly applied section 138(1) of the Evidence Act to the facts of the case. DW3 reported events in various parts of Oyo State as observed by him.

When the case of the respondent was being reported under the subhead line there was no reference either directly or indirectly to any form of election malpractices against the respondent no such criminal imputation and allegation was ever imputed against the respondent.

In the pleadings of the parties at the trial court, allegation of crime was never made an issue either directly or indirectly, but the learned trial Judge notwithstanding this fact applied the provisions of section 138(1) of the Evidence Act to the facts of his case to hold that the appellants failed to prove allegation of a crime by the respondent beyond reasonable doubt. This is not tenable in view of the evidence of the respondent on pg. 52 lines 17-21 where he revealed that he had no accreditation certificate to contest for the Local Government Congress of the NRC party. This court is urged 164 to set aside the decision of the lower court, as the trial court had drawn wrong conclusion from accepted evidence.

The respondent in his submission on this issue took the alternative stand by adopting and incorporating all the arguments already advanced on issues 1, 2, 3. He considered the evidence in respect of the court order. These was evidence that DW3 was given a copy to read at the scene.

But the only issue before the trial court was that the respondent did not give him a copy for keeps. The respondent contended that any finding on the issue would not have affected the judgment it would have been a purely academic exercise which the court should not engage in. Further more even if the learned trial Judge erred in not making a finding on the issue of the court order would it have resulted in the setting aside of the decision in the case? It is held that it is not sufficient for an appellant to allege that the trial court did not properly evaluate evidence or make a finding. The appellants must point out errors of which he complains and show that if such errors are corrected the judgment cannot stand which they have failed to do.

On the issue of whether the learned trial Judge was right in applying the provisions of section 138 of the Evidence Act when commission of crime was not in issue as an action for libel is a civil wrong.

The respondent contended that the foregoing argument is misconceived, as issues were joined on the pleadings of the parties.

The respondent pleaded the publication, the ordinary and natural meaning coupled with the extended meaning in paragraphs 4, 5, and 6 of the statement of claim pp. 9-10 of the records while the appellants replied in paragraphs 5 and 6 of their statement of claim at pp. 27- 28 of the records. On the overall the appellants adopted the meaning of the publication as amplified in the statement of claim but deemed that they are true in substance and in fact. As parties joined issues

on allegation of crime directly.

The appellants cannot prove their defence of justification without evidence of the alleged crimes being given like arrest by police, being whisked away from the scene of crime and detention as pleaded in their statement of defence. There was no evidence to prove any crime. Even DW1 testified to a peaceful political discussion between himself, the respondent, the police DW2, DW3 and others. The evidence of DWI was that of an eyewitness and it

formed the fulcrum of the appellants defence. The respondent concluded that having regard to the totality of the evidence adduced particularly from the witnesses for the appellant, the judgment for the respondent was sound and impeccable.

The third issue is on whether award of damages a sum of N1, 000,000 was not excessive in the circumstance of the case. The appellants concluded that the learned trial Judge took into account irrelevant factors which had the effect of making the damages awarded to be aggravated. The respondent was awarded the exact amount claimed by him, the learned trial Judge awarded damages on wrong principles of law. It is usual to consider the conduct of the defendant in awarding damages the court did not consider the letter of the defendant dated 7/9/90, vide page 22 of the record.

The court relied on facts not pleaded and on exaggerated and non existing credentials of the respondent, the evidence relied upon to award damages by court must be tested, and not speculative. Any finding that is speculative is perverse and will inevitably lead to a miscarriage of justice. The amount awarded is too high which makes it punitive rather than being compensatory, the appellants referred to the cases of:- Mayange v. Punch Nigeria Limited (1994) 7 NWLR (Pt.358) 570 at 586, Fawehinmi v. Halilu Akilu (1994) 6 NWLR (Pt.351) 387; His Highness Uyo I v. Nigeria National Press Ltd Ors. (1974-1975) NSCL Vol. 9 pg. 304 amongst others.

The respondent replied that the learned trial Judge proceeded on correct principles of law by taking only relevant factors into consideration in assessing the award of one million Naira as damages against the appellants. Although these existed the circumstances like failure to establish the defence of justification, and a blunt refusal by the appellants to offer a retraction and apology, though they had ample time to do so from the time the libel was published on 17/6/90 to the time statement of defence was filed on 20/5/91, justifying the award of aggravated damages, yet the trial Judge only awarded general damages.

The respondent argued that since the appellants proceeded on the wrong assumption, that the lower court awarded aggravated damages when it did not, their attack on the damages as being too high is coloured by wrong assumption and therefore misconceived.

Factors on which damages could be granted were examined. The respondent cited the cases of Mayange v. Punch (Nig.) Ltd. (1994) 7 NWLR (Pt.358) 570, Douglas v. Peterside (1994) 3 NWLR (Pt.330) 37, Kalu v. Mbuko (1988) 3 NWLR (Pt.80) 86 at 103, A.C.B. Ltd. v. Apugo (2001) 5 NWLR (Pt. 707) 485, (2001) 84 LRCN 688 at 710.

The case of Olaniyan v. Unilag (1985) 2 NWLR (Pt. 9) 599 was cited on the discretionary nature of the award of damages and the provision placed on reputation. This court shall now proceed to consider the three issues raised by the appellants for determination in the instant appeal.

The controversial publication now subject matter of the trial for defamation before the trial court for the sake of emphasis reads:

“Oyo:- Ola Ogundipe reported minor cases of malpractice in some areas which nearly marred the exercise. A contestant for NRC in the Ibadan Municipal Local Government, Mr. Oluwole Aina was whisked off from the election venue at the instance of the Administrative Secretary, to prevent the breakdown of law and order”.

The respondent put the precise imputation of the publication which is injurious to him and his character in paragraph 5 of his statement of claim as follows:-

(a) That the respondent was involved in election malpractice;

(b) that the respondent attempted to mar the congress and the election thereat which is an offence punishable under the transition to civil rule programme which acts have made a crime punishable with imprisonment for five years under the 1987 Decree;

(c) that the respondent attempted to cause or caused a breakdown of law and order;

(d) that the respondent was arrested as a criminal, whisked off from the venue and detained pending trial.

The appellants in their pleadings denied that the said publication bore the meaning set out in (a)-(d) supra, and that they were not defamatory of the respondent and neither did he suffer any loss or damage therefrom. But in paragraph 6 of the statement of defence the appellant averred but without admitting that if the words bore the meaning alleged in the statement of claim the same in their natural and ordinary meaning are true in substance and infact. In short the appellants pleaded the defence of justification – the particulars of which are as follows:-

(a) The plaintiff was not allowed by the Administrative Secretary of National Electoral Commission to contest for any post in the municipal government during the congress of the party to elect officers to run its affairs in Oyo State on the 16th of June, 1990 at the defunct House of Chiefs, Secretariat Ibadan on the ground that he was not accredited to be at the venue;

(b) that plaintiff protested loudly and heated by that he was being disenfranchised unlawfully by the Administrative Secretary of NEC;

(c) the NEC officials invited the police during the protracted argument between the plaintiff and the officials to prevent breakdown of law and order;

(d) the plaintiff was immediately taken away by the policemen invited by NEC officials and detained temporarily at the post office box room Agodi post office Ibadan outside the venue of the election.

The appellants aimed their evidence at creating a rowdy and tumultuous atmosphere at the venue of the congress aggravated between party members due to the appearance of the respondent, that the Administrative Secretary objected to the presence of the respondent whereby he sought the assistance of the police officers who took him away from the premises.

DW3 testified at pg. 62 lines 11-14 that:-

“The plaintiff was detained by the side of the pigeon hole box room of the post office of the secretariat. On his way out being led by the policemen, Mr. Bolomope joined him, the plaintiff and the policemen and they moved to the place where he was detained”.

PW3 further said at pg. 63 lines 34 to pg. 64 line 2 that:-

“I wouldn’t have known whether the plaintiff was released on bailor not. I did not come to find out whether or not the plaintiff was granted bail by the two policemen that arrested him. I did not see the plaintiff engage in any election malpractice on that day. I know that election malpractice is a criminal offence”.

As against this DW1 – a witness for the appellants said pg. 57 lines 23-31 pg. 58 lines 24-25 that:-

“The atmosphere of the venue of the congress was where people discuss freely. The situation on the day was not rowdy and at that time it cannot be said to lead to a breakdown of law and order. We were discussing politics generally with the police in a friendly manner”.

At page 59 lines 4-5 of the records DW1 said that:-

“As a journalist and politician, I know that an election malpractice is a criminal offence”.

DW1 testified to a friendly political discussion which extended for one hour among himself the respondent, the police, DW2, DW3 and others. The evidence of DW1 who was a witness for the appellants supported the respondent’s case. He was an eye witness of the event. The learned trial Judge could have over looked such major contradiction in the evidence coming from the appellants.

The appellants also made heavy weather of the respondent not sending DW3 a copy of the court for keeps after reading same at the venue of the congress, they also contested the issue of the respondent appearing at the scene without an accreditation certificate.

I agree with the submission of the respondent that any finding on the issue of giving the court order to DW3for keeps after perusing same and other journalists, would not affect the judgment. It would only amount to a mere academic exercise in the circumstance, whereas the appellants should have pointed out the error made by the learned trial Judge or the effect the omission to make a finding on the court order would have on the decision of the court. James v. Ofiri (1998) 3 NWLR (Pt.541) 246 at 268.

It is apparent also that no issue was joined in the pleadings on any delegates accreditation certification as the publication did not mention it. The respondent averred in paragraph 8 at pg. 10 of the records that:-

“The plaintiff avers that he went to the congress venue as a member of the party and a contestant for the post of legal adviser, pursuant to the order of the High Court which enable him to do so.”

The respondent never said that he was a delegate holding a delegate accreditation certificate but a contestant. The appellants also submitted that section 138(1) of the Evidence Act was inapplicable to the case because the action for libel was a civil wrong.

Parties did not make allegation of a crime an issue whether directly or indirectly. I regard this as a misconception by the appellants as issues were joined on the pleadings in paragraphs 4, 5, 6 of the statement of claim and paragraphs 5 and 6 of the statement of defence.

The publication, the pleadings and evidence in the case elucidate and support the futility of the appeal on this issue, the appellants failed to prove any of the allegations or imputations.

The evidence in court show that the event reported in exh. A did not happen. Further the police who was alleged to have arrested the respondent, nor the Administrative Secretary who purportedly issued the order was called as a witness.

The court agrees with the finding of the learned trial Judge that exh. A is defamatory of the respondent in the circumstance of this case. Dina v. New Nigerian Newspapers (1986) 2 NWLR (Pt.22) 353. Awoniyi v. The Registered Trustees of Amore (1990) 6 NWLR (Pt.154) 42.

This court therefore agrees with the finding of the learned trial Judge which states that:-

“In effect when a plea of justification is combined with the provisions of section 138(1) of the Evidence Act, they impose on the defendant the duty to prove not just on the belief of probability but beyond reasonable doubt the truth of all material statements in the libel.”

I shall now consider the plea of justification pleaded by the defendants in paragraph 6 of their statement of defence and the evidence led through DW1, DW2 and DW3. There is abundant evidence before the court based on the evidence of PW2, PW3 and even DW1 and DW2 that the report exh. A given their ordinary and natural meaning conveyed criminal imputation. DW2 admitted in his evidence that there was no malpractice on that day and he was the reporter who covered the event of that day. The learned trial Judge concluded that the publication carried defamatory meaning being a criminal allegation. When the whole publication is read together and having specifically mentioned the name of the respondent it is a bygone conclusion that he was whisked off the venue of the congress due to election malpractice. Where a person relies on justification as defence he has to justify the imputation complained of and prove the truth of all material statement in the libel.

The truth of the imputation is an answer to the action, not because it negative malice, but because the plaintiff has no right to character free from that imputation, and if he has no right to it, he cannot in justice recover damages for the loss of it. It is damnun absque injuria. Strict proof is demanded for justification. The plea of justification means that the libel is true not only in its allegation of fact but also in any comments made thereon. The defendant has the onus to prove not only that the facts are truly stated but also that any comments on them are correct except the statement of comments which do not add to the string of the charge.I have considered the totality of the evidence before the lower court and it is my firm view that the plea of justification pleaded by the appellants was not made out. The live issue as raised in the publication and the pleading was and is whether the respondent engaged in electoral or any malpractice, caused or attempted to cause a breakdown of law and order marred or attempted to mar the elections contrary to law and in consequence of these crimes he was arrested by the police, whisked away from the venue and detained.

The evidence available to prove the foregoing from the appellant was conflicting. The lower court rejected the evidence and this court so rejects them. Din v. African Newspaper (Nig.) Ltd. (1990) 3 NWLR (pt. 139) 392; Basorun v. Ogunlewe (2000) 1 NWLR (Pt.640) 221; Emeagwana v. Guardian Newspaper Ltd. (1998) 1 NWLR (Pt.535) 610; A.C.B. Ltd. v. Apugo (2001) 5 NWLR (Pt.707) 483.

On the 2nd issue appellants submitted that the decision of the learned trial Judge do not justify the evidence before the trial court, or that decision of the court cannot be sustained in view of the evidence before it. The learned trial Judge relied on the evidence of the respondent exclusively and his witnesses PW2 and PW3 in considering the defamatory nature of the publication. The appellant concluded that the judgment of the court was not supported by evidence and same was replete with contradictions and perversity in its entirety. The learned trial Judge reviewed the evidence of both parties and the defence of justification pleaded by the appellants, and concluded on pg. 87 paragraph two that the defendants have not discharged the burden on them to prove beyond all reasonable doubt their assertion and criminal imputation on the plaintiff in the libel. Having regard to the overwhelming evidence from the witnesses for the appellant to buttress the case of the respondent the judgment of the lower court is sound and cannot be faulted. It has to be borne in mind that where a court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of the Court of Appeal to substitute its own views for the view of the trial court.

What the Court of Appeal ought to do is to find out whether there is evidence on which the trial court acted. Once there is sufficient evidence on record from which the trial court made its findings of fact the appellate court cannot intervene. Akinloye v. Eyiyola (1968) NMLR 92; Enang v. Adu (1981) 11-12 SC 25; Woluchem v. Gudi (1981) 5 SC 291; Akpagbue v. Ogu (1976) 6 SC 63. Odofin v. Ayoola (1984) 11 SC 72; Amadi v. Nwosu (1992) 5 NWLR (Pt.241) 273.

However where a trial court fails to make a proper use of the opportunity of seeing, hearing and observing the witnesses at the trial or where it fails to exercise its discretion properly or where the findings of facts of the trial court cannot be regarded as resulting from the evidence or where the trial court has drawn wrong conclusion to accepted evidence, or has taken erroneous view of the evidence adduced before it or its findings of fact are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence before the court, the appellate court will be at liberty to intervene and make necessary findings from such evidence. Okpiri v. Johah (1961) 1 SCNLR 174; Maja v. Stocco (1968) NMLR 372, (1968) 1 All NLR 141; Ebba v. Ogodo (1984) 1 SCNLR 372; Punch (Nig.) Ltd. v. Eyitene (2001) 17 NWLR (Pt.741) 228.This issue is resolve in favour of the respondent.

The third issue queries the sum of N1,000.000 awarded as damages as being excessive as the learned trial Judge failed to take into consideration relevant factors. In the judgment of the trial court as from pg. 89 of the records, in the assessment of damages the learned trial Judge took into consideration:-

(1) The whole conduct of the defendants from the time when the libel was published down to the very moment of the delivery of judgment. Such conduct as setting up the plea of justification of exh. A complained of, failure to apologise, or to retract the libel after being aware of the falsity of the publication.

(2) Recklessness of the publication.

(3) Standing of the plaintiff.

(4) The extent of circulation of the Newspaper – that the Newspaper Champion has wide circulation in Nigeria

The learned trial Judge relied on the case of Okolo v. Midwest Newspaper Corporation (1977) 1 SC 33 which held that:-

It is settled law that if any defamatory words were written of or concerning the plaintiffs so as to impute a crime as it is in this case for which the plaintiff can be made to suffer physically by way of punishment those words are actionable per se without proof of special damage.

5. Decline in the value and purchasing power of the naira.
6. The standing of the plaintiff/respondent which according to the pleading and evidence are:-

(d) that he is promising political leader

(b) a reputable legal practitioner.

(c) a member of the National Executive Committee of Nigeria Bar Association.

The learned trial Judge considered the current purchasing power of the naira to award the respondent a million naira general damages.

The learned trial Judge relied on the cases of Ikotun v. Zik Press Ltd. 19 NLR 112; Onyejike v. Anyasor (1992) 1 NWLR (pt.218) 437; Okolo v. Midwest Newspapers Corporation (1977) 1 SC 33; Kalu v. Mbuko (1988) 3 NWLR (Pt.80) 86 at 103; BPPC v. Gwagwada (1989) 4 NWLR (pt.116) 439.

An appellate court will not upset the award of damages by a trial court merely because it would have awarded a lesser amount.

However, an appellate court will interfere with an award of damages where the trial court:-

(a) Acted under a mistake of law

(b) Acted in disregard of applicable principles

(c) Acted under misapprehension of facts or failed to take account of relevant matters

(d) Injustice will result if the appellate court does not interfere

(e) Where such award is excessively high or unreasonably low

Harold Sodipo & Co. Ltd. v. Daily Times (Nig.) Ltd (1972) 11 SC 69; Uwa Printers (Nig.) Limited v. Investment Trust Co. Ltd. (1988) 5 NWLR (pt.92) 110; Duyile v. Ogunbayo & Sons Ltd. (1988) 1 NWLR (Pt.72) 601; Union Bank of Nigeria Co. Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt.421) pg.558; ELF (Nig.) Ltd. v. Sillo (1994) 6 NWLR (Pt.350) 258; Savannah Bank of (Nig.) Ltd. v. Prime Management System Ltd. (1999) 10 NWLR (Pt.621) 160.

The learned trial Judge gave reasons as to how he arrived at N 1,000.000 general damages at pages 89-92 of the record. Besides the factors enumerated in (1)-(6) earlier on in this issue, he dealt extensively with factors like the standing of the respondent, as a reputable legal practitioner, the wide circulation of the appellant Newspaper, the unrepentant and defiant attitude of the appellants in the face of the evidence of their own witnesses that the event reported did not occur, and the imputation of crime in the publication which are factors which could have aggravated the damages.

Lastly, the learned trial Judge considered the decline in the purchasing power and value of the naira as the local currency and medium of exchange in this country between the time when the action was filed in 1990 and the judgment in the case delivered in 1994.

There are plethora of cases to confirm that the yard stick used by the learned trial Judge are factors normally relied upon by the courts in awarding damages in libel cases.

In short the learned trial Judge invoked correct principles of law and took only relevant factors into consideration in assessing the award of one million naira as damages against the appellants. The appellants complained that the damages was too high. In the prevailing circumstance of the case, I agree that it is rather late in the day for the appellants to be asking for any mitigating factors at an appellate court when parties could have arrived at an amicable settlement prior to the time when the action was filed in 1990.

On the over-all evidence this appeal is dismissed the judgment of the lower court is affirmed N10, 000.00 costs to the respondents.

---

Other Citations: (2003)LCN/1365(CA)