New Nigerian Newspapers Ltd And Anor V Oteh O. Oteh (1991) LLJR-SC

New Nigerian Newspapers Ltd And Anor V Oteh O. Oteh (1991)

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Before the Calabar High Court the plaintiff claimed jointly and severally against the defendants N500,000.00 (Five Hundred Thousand Naira) being damages for libel contained in paragraph 4 of the Amended Statement of Claim.

It reads as follows-  ‘On the 5th day of September, 1977 the Defendants falsely and I maliciously printed and published of and concerning the plaintiff in the way of his profession and office as head of Works Department , of the University of Calabar of Page 17 of the New Nigerian, the libel hereinafter set out namely ILLEGAL FINANCIAL DEAL UNCOVERED AT UNICAL.

An illegal financial transaction totalling about N500,000.00 has been uncovered at the University of Calabar (UNICAL). Calabar in the Cross River State. Disclosing this to the New Nigerian in Calabar sources close to the Works Department ‘!lid thousands of Naira were being paid through Vouchers prepared In the Accounts Department of the University to an official of the Department almost every week for the supply of certain items to the institution. The official who was said to be a Senior Staff of the Works Department was reported to have arrogated to himself the duties of a purchasing officer for the University.

The source also said that the official collected N7,000.00 on June 26th this year another N7,000.00 on June 29th, N1,000.00 on July 15th and N24,000.00 on July 20th, amounting to about N39,440.00 paid to him within one month for the same purpose. More than N500,000.00 had been siphoned out of the University ‘since the deal started six months ago’, the source disclosed. ‘The official buys the items, receives them into the store and issues them out without being checked by anybody to ascertain whether or not the items were of the right quality and worth the amount collected for their purchase’, the source alleged. ‘The source further alleged that the official buys almost all the items from one Company in Aba in which he has some interests’ As a head of Department, the source argued it was most irregular and unusual to make himself a purchasing Officer, it was also alleged that the official had been offered accommodation on three occasions but had refused and chose to stay in a Hotel at the expense of the University.

While in the Hotel, the official also received Hotel claims and other benefits’. The official was also alleged to have converted one of the Universitys vehicles a 404 Pick Up Van No. 4729 C to his private use and had consequently given instructions that the inscription University of Calabar -written on all the Institutions vehicles, should not be written on the vehicle. Further investigations by the New Nigerian revealed that the University might face serious financial problems if positive steps were not taken to remedy the situation’.

The plaintiff then procee6ed to plead in paragraphs 21 and 22 thereof thus-  ’21. By the words set out in paragraph 4 hereof, the Defendants meant that the plaintiff was a dishonest and fraudulent Head of the Works Department of the University and had no scruples in stealing funds of the University.  

22.  By reason of the premises the plaintiff has been greatly injured in his credit and reputation and in his profession as the Engineer and Head of the Works Department of the University and has been dismissed from the services of the University as per letter dated 16th March, 1979.’ The defendants on the other hand pleaded in paragraphs 4, 5, and 16 of their Amended Statement of Defence that- 4. The defendants deny paragraphs 4, 5 and 7 all inclusive of the Statement of Claim and put the plaintiff to the strictest proof thereof. 5.    The defendants deny that the words set out in paragraph 4 of the Statement of Claim meant or were understood to mean the words set out in paragraph 21 of the Amended Statement of Claim.   2    The Defendants deny paragraph 22 of the Amended Statement of Claim and aver that if even the plaintiff had been dismissed from the services of the University of Calabar, the said dismissal had nothing to do with the Defendants.

The defendants will rely on the plaintiffs letter of termination of appointment from UNICAL Dated 16th March, 1979.   16.  The Defendants say that they are perfectly justified in publishing the said article in Newspaper as the material facts are true. Furthermore it was a fair comment on the nature of the financial irregularities in a Federal Government owned University.’   It was thus clear from the pleadings at least, that the defendants did not deny the writing and publication of the article but only contended that it did not refer to the plaintiff or that if it did at all the publication consisted of material facts which are true, justified or fair comment on a matter of public interest. At the trial the plaintiff called a total of seven witnesses and closed his case.

There were series of adjournments to enable the defendants come before the court and state their own side of the case. It never happened. In the end the learned trial judge gave judgment in favour of the plaintiff against the defendants jointly and severally in the sum of N100,000.00 with costs of N500.00. Dissatisfied with the judgment, the defendants now ‘appellants’, have appealed to this court. The plaintiff will henceforth be called ‘the respondent’.

Five grounds of appeal were originally filed and later one additional ground was added. Counsel on both sides filed and exchanged briefs in the case. They were adopted at the hearing. Oral submissions were also made. Mr. Sowemimo learned counsel for the appellants raised four issues for determination in his brief. I will renumber them as follows-

1.   Whether the learned trial judge was right in entering judgment in favour of the plaintiff without affording the defendants sufficient opportunity of presenting their case. 2.   Whether the learned trial judge was right in entering judgment in favour of the plaintiff on the totality of evidence adduced before the court.   3.   Whether based on the evidence before the court and the pleadings the defence of qualified privilege would not avail the Defendants in view of the fact that the plaintiff never filed a reply raising the, issue of malice.  

4.  Whether the sum of N 100,000.00 damages awarded the plaintiff is not excessive in the absence of facts aggravating damages. Arguing the first issue Mr. Sowemimo submitted that the learned trial judge, was wrong when he said in his judgment at pages 87-88 of the record that- ‘I must say that the defendants did nothing to defend this case in court, apart from filing a Statement of Defence, and even tendering of Exhibit 2, would not suffice.

I do not think that the filing of defence without more -i.e. leading no evidence in defence is sufficient. At a certain stage their counsel. Mr Sowemimo filed applications for amendment and for leave to reopen the case after the plaintiff had closed his case and the case adjourned for defence and address. On the 17th August 1987 when the two motions came up for argument neither the defendants nor their counsel was present. The two motions were then struck out and I adjourned the case for judgment. It will then be observed that the defendants did not give their case the seriousness it deserves.’

Counsel traced the history of the case from 22nd December 1980 when counsel on both sides first appeared in court up to the 17th October 1985 when trial commenced de novo before another judge, Justice Ecoma. He said before then there had been twenty-one appearances, appellants counsel was absent in court only once, respondents counsel was also absent once. He said the trial proceeded before Hon. Justice Ecoma until 16/1/87 when the defence counsel was absent and the case was adjourned to 2nd, 3rd and 16th April 1987for continuation with costs of N100 awarded against the appellants.

That the trial continued in court without defence counsel on both 2nd & 3rd April 1987when the respondent closed his case if The case was then adjourned to 16th April 1987for defence and address. That the, court on 3/4/87 directed that hearing notice be served on the defence counsel. On 16/4/87 respondents counsel was in court while the defence counsel was not, and that there was no proof of service on counsel.

The matter was then adjourned further to 4/6/87, the court once again directing that hearing notice be served on the defence. He said on 4/6/87 both counsel were before the court and the matter was adjourned to 22/7/87 with costs in favour of the respondent. That on 22/7/87 both counsel were again absent and the matter was adjourned to 17/8/87for mention and the court again directing that hearing notices be issued.

On 17/8/87 respondents counsel was present while the appellants counsel was absent. There and then the respondents counsel applied for judgment and to have the appellants two motions pick out. The requests were granted even though the matter was slated for the Nation on that day and there was no proof of service on appellants or their counsel.

Judgment was finally delivered on 21st October 1987 without further reference to the appellants or their counsel. It was therefore submitted that if the learned trial judge had consulted his records properly he would have discovered that on the 3rd April 1987 the matter was adjourned to 16/4/87 for defence and address; and that on 16/4/87 though the defence counsel was absent, there was no proof of service of hearing notices on the appellants as ordered by the court. The court therefore erred when it adjourned for address instead of ‘for defence and address’. By this order the court unwittingly closed the case for the appellant and thereby denied the appellant a fair hearing. A number of cases were cited in support including- KANO v. B. M. P. C. LTD (1978) 9 -10 S.C. 51 NTUKIDEM v. OKO (1986) 5 NWLR (Pt.45) 909; UNIVERSITY OF LAGOS v. AIGORO (1985) 1 S.C. 285; (1985) 1 NWLR (Pt.1) 143. OJIKUTU v. ODEH (1954) 14 WACA 640 SOLANKE v. AJIBOLA (1968) I ALL NLR 46 N. A. A. v. ADEWALE (1985) 3 NWLR (PT. 13) 474.

It was further submitted that not only was it wrong for the learned trial judge to have struck out appellants motions to amend the Statement of Defence and to reopen the case respectively without giving any reasons, but that it was equally wrong for him to have proceeded to treat the date fixed for mention in a case as one for hearing and thereby rendering the judgment delivered a nullity. Responding Mr. Anyawu learned counsel for the respondent agreed that the case was adjourned from 2017187 to 17/8/87 for mention.

He said appellants two motions were struck out in their absence on 17/8/87 because the motions had been abandoned by the appellants as they were never fixed for hearing. They were therefore rightly struck out. It was submitted that appellants counsel was taking the court for a ride when he claimed never knowing the dates the case was fixed for hearing when in truth and fact he wanted deliberately to frustrate the respondent. He said in the circumstances the trial court rightly dispensed with the addresses of both counsel in the matter and delivered judgment on 21/10/87. Counsel said that the appellants were given every opportunity to present their case but that they refused to do so.

That a defendant who knew of a pending suit against him and who refused to appear in court cannot complain that he was not given the opportunity to present his case. He cited in support- JONES v. CURLING (1884) 13 QBD 262 DR. A1NA & ORS v. Obabiolorunkosi (1986) 2 NWLR (PT.22) 316 AT 329 DIN v. ATT. GEN. OF THE FEDERATION (1986) I NWLR (PT. 17) 471   WILLIAMS v. HOPE RISING (1982) 1-2 S.C. 145 AT 154 NIGER CONSTRUCTION LTD v. OKUGBEN (1987) 4 NWLR (Pt.67) 787   I think the short and very crucial question here is when did counsel for the t appellants effectively lose contact with the court during the hearing of the cases until judgment was delivered ill his absence?

I have carefully gone through the record of proceedings and the submissions of counsel. The record shows that when plaintiff/respondents witnesses 1-6 testified in court both counsel were present. Page 49 shows that at the end of the evidence of P.W.6 on 14110186 the case was adjourned to 16/1/87 for continuation by consent of both counsel. Appellants counsel did not appear on 16/1/87. The case continued on 2/4/87 and 3/4/87 when P. W.7 testified in the absence of appellants and their counsel.

The case was then adjourned to 16/4/87 for defence and address. It was on this date that the court ordered thus- ‘Hearing Notice to issue to the Defendants and Mr. Sowemimo counsel for the defence.’   On 16/4/87 the court clerk reported that there was no proof of service of the Hearing Notices ordered above. Another order to the same effect was made on the day and the case adjourned to 4/6187.   Page 53 of the record shows that both counsel were in court on 4/6/87. And on page 54 it was recorded that- ‘By consent of both counsel case is adjourned to the 22n/87 for addresses’.  

On 22/7/87 the appellants and their counsel were absent and the record reads- ‘Case is adjourned to the 17th day of August 1987 for mention. Hearing Notices to issue to the defendant and also to their counsel’   The above order of court is to me very crucial. It was an attempt once more to bring to the notice and attention of the defendants/appellants and their counsel that the case pending against them in court was still there and alive too.  

On the relevant day, the 17/8/87 the appellants and their counsel were not in court and very importantly there was no evidence or proof that Hearing Notices were served on them as ordered by the Court on 22/7/87. This omission to me was fatal to the entire proceedings. Instead of ordering another adjournment, the court at the instance of respondent counsel, merely struck out appellants two motions which were to amend the Statement of Defence and to reopen the case.

Respondents counsel also applied for judgment which he finally got on 21/ 10/87 without any order of court that appellant or their counsel be served with further hearing notices. In view of the clear and unmistakable order of court of 22/7/87 referred to above, it is my respectful view that the learned trial judge was in error to have proceeded to strike out appellants motions to amend the Statement of Defence and to reopen the case when there was no report or evidence before him that the appellants and or their counsel had been served to appear before it on the day. He was equally wrong to have proceeded to fix and adjourn for judgment in the absence of the appellants and their counsel when they had clearly led no evidence, in defence and on the face of their pleaded defence before the court.

The case was specifically adjourned form 22/7/87 to 17/8/87 for mention ostensibly to allow the appellants time to come and inform the court what they intended to do about their defence. It is clearly wrong for the trial court to have treated the date which  was for mention as a hearing date and any judgment consequently obtained would be a nullity (see for example KANO v. B.M.P.C. LTD (supra) , W1LUAMS v HOPE RISING (supra). In short I hold the view that the appellants were not afforded sufficient opportunity of presenting their defence at the trial. The appeal therefore succeeds on this ground alone.  

But I would like to consider the second issue very briefly. This is whether on the balance of probabilities the respondent proved his case on the evidence led.   Mr. Sowemimo in his brief submitted that the evidence adduced by the respondent in the lower court was not sufficient to prove that the publication in issue referred to him. He said the respondent in his evidence in chief admitted that he was not the substantive head of the Works Department of the University of Calabar at the material time. The issue of identification of the person referred to in the publication must therefore be resolved in favour of the appellants, the respondent having failed to show that it referred to him. The following cases were cited- KNUPFFER V. LONDON EXPRESS NEWSPAPERS LTD (1944) AC 116  DAILY TIMES NIGERIA LTD V. EMEZUOM (1990) 2 NWLR (Pt.132) 340. SKETCH PUBLISHING LTD V. AJAGBEMOKEFERI (1989) 1 NWLR (Pt. 100) 678. SERVICE PRESS LTD V. AZIKIWE (1951) 13 WACA 301 OLORUNKEMI AJAO V. SONOLA & ANOR (1973) 5 S.C. 119

It was also submitted that although the learned trial judge on page 88 of the record found that the words were capable of referring to the respondent, he did not find as a fact that the words actually referred to the respondent. The judgment cannot therefore be entered in favour of the respondent. He said the failure of the trial judge to give any reason why he thought the words were capable of referring to the respondent was equally fatal to the respondents case. He cited in support- AJAGBE V. AKANNI (1973) 11 S.C 47   AKIBU V. OPALEYE (1974) 11 S.C. 189   DUMUJE V.IDUOZO (1978) 2 S.C. 1 OZIBE V. AIGBE (1977) I S.C. 1   It was submitted that neither the respondent nor any of his witnesses gave evidence on which the court could find that the words in fact referred to the respondent.

Mr. Anyawu responding stated that in all cases where the plaintiff in an action for libel was not mentioned by name the question is “ whether you think the libel designates the plaintiff in such a way as to let those who knew him understand that he was the person meant…. It is sufficient if those who know the plaintiff can make out that he is the person meant.’   He cited HULTON (E) & CO. v. JONES (l91O) AC20 at 26 AKINTOLA v. ANYIAM (1961) 1 ALL NLR 508 at 514. He said that once an article is libelous the defendant cannot escape liability merely by showing that he was careful and that his intentions were good.

That the liability for libel does not depend on the intention of the defamer but on the facts of defamation. He cited NEW STEAN v. LONDON EXPRESS LTD (1940) 1K.B. 337 at 377. CASSIDY v. DAILY MIRROR (1929) 2 K.B. 331.   I agree with Mr. Sowenmirno that in an action for libel, the plaintiff must  prove that the matter complained of(I) is defamatory (2) refers to the plaintiff and  (3) has been published to a third person. And that the burden is on the plaintiff to prove the three essential ingredients above. (f anyone of them fails, the whole action fails (see ONU v AGBESE (1985) I NWLR (Pt.4) 704.  

I have already set out above paragraph 4 of the respondents Amended Statement of claim containing the alleged libel. The publication clearly in my view did not mention the plaintiff/respondent by name. It is obvious therefore that to succeed in the action, the respondent must call a witness to whom the world were published to say that when he or she read the defamatory words, he thought that the respondent was the person referred to.

The respondent at the trial tried to prove this through some of his witnesses especially P.Ws. 2 &5 who gave inconsistent testimonies. P.Ws 6 & 7 in fact never said the article referred to the respondent.  It was therefore not surprising that on page 88 of the record, the learned trial judge could only arrive at the following conclusion- ‘Be that as it may, I am satisfied that on the totality of the evidence before me, I have to rule that the words comp1ained of are capable of   (1) referring to the plaintiff; and  (2) …The learned trial Judge never made a finding anywhere in the judgment that the words or publication referred to the plaintiff/respondent.

In short there was therefore no finding that the respondent was the person referred to in the publication complained of. And regrettably there was no reliable evidence in the light of what I have already said about the evidence of P.Ws 2& 5 above, on which the finding could be made by this court even if we want to do so.

The ascription of probative values to evidence is a matter primarily for the court of trial which had the singular opportunity of listening to the witnesses and watching their demeanor (see FABUMIYI & ANOR v. OBAJE & ANOR (1968) NMLR 242, Balogun v. Agboola (1974) I All NLR (Pt.2) 66). Again this is fatal. It means the respondent had failed to prove his case. The appeal must also be allowed on this other ground.  

I think there is no need to consider the remaining two issues raised in the appeal. The two relate to the appellants defences to the action and to the quantum of damages awarded at the trial.  On the whole the appeal succeeds and it is hereby allowed. The judgment of the Calabar High Court delivered in this case on 21st October 1987 is hereby set aside.

Its order for costs is also set aside. The appellants are entitled to cost both in the court below and in this court assessed at four hundred Naira (N400.00) and five hundred Naira (N500.00) respectively.

Other Citation: (1991) LCN/2451(SC)

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