Mr. Biodun Oduwole & Ors. V Prof. Tam David West (2010)

LAWGLOBAL HUB Lead Judgment Report

A. FABIYI, J.S.C.

This is an appeal against the decision of the Court of Appeal, Ibadan Division (hereafter referred to as ‘the court below) dated 3rd April, 2003 which upturned the decision of R. G. Oyetunde, J. of the High Court of Oyo State holden at Ibadan on 1st July, 1999.

The respondent, as plaintiff at the trial court, claimed the sum of N250 million as damages from the defendants jointly and severally for libel contained in Nigerian Tribune of Monday, the 2nd day of September, 1996 in its editorial features column titled ‘ENOUGH OF DAVID WEST’.

Pleadings were filed and exchanged by the parties. After subsequent amendments of the pleadings by both sides of the divide, the plaintiff testified and called three other witnesses to buttress his case. The defendants rested their case on that of the plaintiff. Thereafter, the learned trial Judge was addressed by learned counsel to the parties. In a reserved judgment handed out on the 1st July, 1999 it was found that the plaintiff only proved allegation that he was sacked from the office of Minister of Petroleum which was false as he was deployed to Ministry of Mines and Power. The learned trial Judge then awarded the sum of N10,000.00 only as damages to the plaintiff.

The plaintiff felt unhappy with the sum awarded as damages by the trial court and appealed to the court below. The appeal was upheld on the quantum of damages. The award of N10,000.00 made by the trial court was set aside. The same was substituted with an award of N300,000.00 only.

The defendants were dissatisfied with the stance posed by the learned justices of the court below and have appealed to this court. Briefs of argument were filed on behalf of the parties herein.

The two issues formulated on behalf of the appellants for determination in this appeal read as follows:-

“(i) Whether the learned justices of the Court of Appeal were right in interfering with the damages awarded by the learned trial judge.

(ii) Whether the sum of three hundred thousand Naira awarded by the lower court was not manifestly high or excessive in the circumstances.”

In the same fashion, two issues were also decoded on behalf of the respondent. They read as follows:-

“(1) Whether the learned justices of the Court of Appeal correctly applied the legal principles when they disturbed the damages awarded by the learned trial judge.

(2) Whether the sum of N300,000.00 awarded by the Court of Appeal was manifestly high or excessive.”

Arguing issue 1, learned counsel for the appellants submitted that assessment of damages is peculiarly within the province of the jury in an action for libel and an award would seldom be disturbed on the ground that the damages are either too great or too small. He referred to Gatley on Libel and Slander, 8th Edition, Art 1515, 1522 and also cited the cases of Onwu v. Nka (1996) 7 NWLR (Pt.458) 1 and Ojini v. Ogooluwa Motors Ltd. (1998) 1 NWLR (Pt. 534) 353.

Learned counsel submitted that the reasons advanced by the court below for holding that there existed aggravating circumstances and which made it disturb the damages awarded by the trial court were wrong in law. He observed that the trial court considered the respondent’s reputation as an astute social figure when it considered quantum of damages. He felt that the fact of P.W.4 being upset and embarrassed by the publication is relevant only to the extent that it established that the publication was in fact defamatory of the respondent and has no relevance in respect of quantum of damages. Learned counsel asserted that a party is not expected in law of libel to retract and apologise for the truth. He opined that if the court below had adverted to the situation, it would not have treated the refusal of the appellants to retract as capable of aggravating the damages awardable in this matter.

Learned counsel further observed that the court below was wrong when it alluded to the evidence of P.W.1 as being sufficient to aggravate damages as he merely tendered exhibits on subpoena and did not testify on the merits of the case. He could not fathom how the court below arrived at the conclusion that P.W.1’s evidence was capable of aggravating damages and that the trial court glossed over it in awarding damages. He submitted that what the court below did was to wrongly substitute its own view of damages for that of the trial court. He cited NITEL v. Ogunbiyi (1992) 7 NWLR (Pt. 255) 543, 561.

Learned counsel submitted that the trial court did not misapply the relevant principles in awarding damages and the court below should not have interfered with the award made by the trial court. He referred to the cases of Engineer Baya Akinterinwa & Anr. v. Cornelius Olagundoye (2000) 6 NWLR (Pt. 659) 92, 116; Karimu v. UBN Ltd. (1996) 5 NWLR (Pt. 451) 634.

On issue 2, learned counsel submitted that the award of N300,000.00 by the court below was manifestly high and excessive in the circumstances. He conceded that damages are at large and there is no need to prove actual damage once libel is established. He cited Cross River State Newspaper Corporation v. J L. Oni & Ors. (1995) 1 NWLR (Pt. 371) 270.

Learned counsel opined that a reasonable proportion must exist between the sum awarded and the circumstance of the case. He cited the cases of Tolley v. Fry (1930) 1 KB 467 at 476; Taff Vale v. Jenkins (1913) A. C. 7.

Learned counsel observed that an appellate court will interfere if the damages are out of proportion to the circumstances of the case. He cited Davis v. Powell Duffryn (1942) A. C. 616 and referred again to Gatley on Libel and Slander, 8th Edition, Art 1517. He felt that since the respondent did not claim special, exemplary or aggravated damages and did not prove any pecuniary loss, the award of N300,000:00 is out of proportion to the circumstances of the case. He urged, in the alternative, that damages awarded be reduced to a figure that bears some proportion to the circumstances of the case.

On behalf of the respondent, learned counsel submitted on issue 1 that an award can only be disturbed when found to be arbitrary, erroneous and based on a wrong exercise of discretion. He too cited Nka v. Onwu (supra); A.C.B. Ltd. Apugo (2001) FWLR (Pt. 42) 38 SC; S.G.C. Ltd. v. Bendel Newspapers Ltd. (2002) FWLR (Pt. 93) 1939-1940.

Learned counsel felt that the court below did not arbitrarily interfere with the damages awarded by the trial court. He felt that the issue of upset and embarrassment of P.W.4 who read the publication was correctly taken into account in computing damages as it showed the repulsive effect of the publication on one reading member of the public. He cited Offoboche v. Ogoja Local Govt. (2001) FWLR 1051.

On issue 2, learned counsel observed that courts have developed certain principles which should guide them in the determination of what is adequate damages in libel cases. He referred to the cases of His Highness Uyo 11 v. N.N.P.L (1974) N.S.C.C. 304; Offoboche v. Ogoja Local Govt. (supra). He felt that from the decisions in these cases, the following facts ought to be taken into consideration in the determination of what is an adequate award in a libel case; viz

1. The award must be adequate to repair the injury to the plaintiff s reputation. This does not require proof of pecuniary loss.
2. The award must atone for the assault on the plaintiff’s character and pride which were unjustifiably invaded.
3. It must reflect the reaction of the law to the impudent and illegal exercise in the course of which the libel was unleashed by the defendant.
4. It must also take into account the loss of social esteem and the natural grief and distress to which plaintiff may have been put.
5. The fact that the defendants did not show any remorse and did care whether or not the plaintiff s reputation or feeling was injured.
6. The social standing of the plaintiff must also be considered.
7. The rate of inflation which has adversely affected the value of the national currency.

Learned counsel observed that evidence abound in this case which favour all the factors listed above. He urged that the appeal be dismissed for lack of merit.

As a matter of general principle, an appellate court would not interfere with an award of damages by a trial court simply because faced with a similar situation and circumstances it would have awarded a different amount. An appeal court will however interfere with an award by a trial court where it is clearly shown:-

(a) that the trial court acted upon wrong principle of law, or

(b) that the amount awarded by the trial court is ridiculously too high or too low;

(c) that the amount was an entirely erroneous and unreasonable estimate having regard to the circumstances of the case.

For the above, See: Zik’s press Ltd. v. Ikoku 13 WACA 188; Williams v. Daily Times (1990) 1 NWLR (Pt. 124) 1 at 49, 55; James v. Mid-Motors (1978) 12 SC 31; Eboh v. Akpolo (1986) 1 All NLR 220; Idahosa v. Oronsaye (1959) SCNLR 407; Bala v. Bankole (1986) 3 NWLR (Pt. 27) 141.

The assessment of damages in a libel action is usually subjective. So, an award in an unrelated case cannot be a useful guide. Whatever method of assessment is employed, a great part of the exercise of assessment must be arbitrary. See: Offoboche v. Ogoja Local Govt. (supra) at 458.

It must be reiterated here that every libel is of itself a wrong in regard to which the law imputes general damages. If a plaintiff proves that a libel has been published of him without legal justification, his cause of action is complete. He needs not prove that he has suffered any resulting actual damage or injury to his reputation for such damages is presumed. See: English and Scottish Co-operation Properties v. Odhams (1940) 1KB 440 at 445; Jones v. Jones (1916) 2 AC 481 at 500.

It has been held by this court that it is not the law that one’s general character or reputation must transparently be stainless, unimpeachable and without any blemish whatsoever before he may successfully maintain an action in defamation. In any event, he puts his reputation in issue and the defendant in a plea of justification or mitigation of damages may give evidence that the plaintiff bears a bad character. The bad reputation must however bear some relation to the libel complained of; not at large. See: C.R.S.N. Corp. v. Oni (supra) at page 292; Speidel v. Plato Films Ltd. (1961) A. C. 1090.

An award must be adequate to assuage for the injury to the plaintiff’s reputation. Indeed, it must atone for the assaults on the plaintiff s character and pride which were unjustifiably invaded. However, it has been pronounced by this court that to the extent that the person who has injured a person in his reputation must pay for the injury he 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. See: Offoboche v. Ogoja Local Govt. (supra).

The learned trial Judge at page 123 of the record of appeal found libel to have been 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 4th 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.”

It beats one’s imagination that the appellants’ counsel felt uncomfortable that the court below considered the point that the appellants failed to retract their false assertion that the respondent was sacked. They put up a volte-face that one does not retract and apologise for stating the ‘truth’. They were dead wrong as it has been shown that they embarked upon falsehood and should be made to face the reality of the self-imposed situation created by them.

The appellants felt that the issue of upset and embarrassment of P.W.4 who read the publication should not be taken into account in computing damages. I do not think that the stance posed by the appellants is correct. This is because the upset and embarrassment of P.W.4 who read the publication should be taken into account in computing damages as it shows the repulsive effect of the publication on one reading member of the public. P.W.4 said he saw the respondent as a role model. See: Offoboche v. Ogoja Local Govt. (supra) at page 1051.

I must say it here that the same cannot be said in respect of the evidence of P.W.1 who was served with a subpoena to merely tender exhibits. He did not testify on the merit of the case. I cannot fathom how his evidence can be taken to be material in computing damages. The court below goofed in so finding. But it is not a very serious point which should be taken as a ‘joker’ by the appellants.

The award must be adequate to reflect the reaction of the law to the impudent and illegal exercise in the course of which the libel was unleashed by the defendants. The appellants saw the respondent as an astute social critic and decided to ‘clip his wings’ in their editorial. In the process, they embarked upon deliberate falsehood and refused to retract their spiteful write-up in respect of their ‘sack allegation’ which turned out to be a farce. They arrogantly maintained that they would not apologise for stating the ‘truth’. They caused the respondent loss of social esteem, natural grief and distress. I feel same should be taken into account in computing damages as done by the court below. I cannot see my way clear in faulting the learned justices of the court below in their stance.

The court below was right when it considered the social standing of the respondent. He was an astute social critic with other array of credentials which stand him out as a national and international figure. He is, inter alia, an outstanding professor at the College of Medicine, University of Ibadan.

I should also note here that other factors which should be considered in assessing damages in libel cases are 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) 3 NWLR (Pt. 124) 543.

I am of the considered view that the court below properly considered all the factors in reviewing upwards the award made by the trial court. The award of N10, 000.00 was arbitrary, erroneous and based on a wrong exercise of discretion. It was ridiculously low having regard to the circumstances of this case.

The award of N300,000.00 only as adjusted by the court below appears pragmatic and in tune with the reality of the matter. I do not see how I can tamper with it.

In conclusion, I have no hesitation in my mind that the appeal is devoid of merit. It is hereby dismissed. The judgment of the court below is hereby affirmed. The appellants shall pay N50,000.00 costs to the respondent.

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SC.173/2003