Nigerian Westminister Dredging And Marine Limited V. Chief Tunde Smoot & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the Delta State High Court, Warri Division, delivered on 28th February, 2006 in Suit No. W/183/2004 per Onajite-Kuejubola, J.

In a 2nd Further Amended Statement of Claim dated and filed on 26th May, 2005, the Respondents, as the plaintiffs before the lower Court claimed for the following reliefs:-

1. A declaration that the petition of the plaintiff against the Defendant which contains the following:

a) “where it became obvious to Ramah Petroleum that we cannot without specific instructions from APC pay any money to them.

They sought the services of one chief Tunde smooth to raid our vessels any time they are traveling on the waterways. This, Chief Smooth accomplishes with the aid of militant Ijaw youths. Ramah petroleum has despite the refusal of A.P.C. to request us to pay, continued to put pressure on us through Chief Smooth and his gang of pirates” amounts to defamation of character.

2. A claim for the sum of N100,000,000.00 (One Hundred Million Naira) only from the Defendant as general damage.
3. A claim for the sum N57,000,000.00 (Fifty-Seven Million Naira) only as special damage. Break down of special damage.

Gross profit of the contract of hiring of Tug boat between SEIYA TRANSPORT (NIG.) LTD and the second Plaintiff for two years at N36,000,000.00 (Thirty-Six Million) per annual N72,000,000.00.

b) Anticipated Net Profit, after deduction of N15,000.000.00 as cost of salaries and maintenance, is N57,000,000.00 (Fifty-Seven Million).

In a Further Amended Statement of Defence dated and filed on 7th June, 2005 pursuant to the order of the Court made on 1st June, 2005, the Appellant, as the Defendant, denied the claims of the Plaintiffs/Respondents and called on the lower Court to dismiss same with substantial costs. To further add flesh and substance to their claim the Plaintiffs/Respondents filed a reply to the further amended statement of defence. Issues now having been duly joined in the pleadings, the matter went to trial on 23rd May, 2005.

At the trial, the 1st Plaintiff gave oral evidence on behalf of himself and the 2nd Plaintiff. Some documents were also tendered and admitted through the witness. At the end of his evidence in-chief the 1st Plaintiff was extensively cross-examined and later re-examined.

Also, in the course of the trial, the Defendant/Appellant called and relied on the oral evidence of one Mr. Ejiko Lee. At the end of the evidence of these 2 witnesses respective learned Counsel took turns to address the Court. After the addresses of Counsel the matter was adjourned for judgment.

In its judgment, the lower court observed, remarked and held thus: –

“The Plaintiff no doubt have given credible evidence for himself and on behalf of 2nd plaintiff, to establish defamation of its character by Defendant company upon a preponderance of evidence therefore, all ingredence of defamation have being successfully adduced by plaintiff, who led unshaken evidence and rebutted the defence of qualified privilege put up by defence, it cannot be over-emphasized that he is entitled to damages as sought in his claim- what measure of damages therefore are Plaintiff entitled to, having proved his character was defamed, and his company 2nd plaintiff was also defamed by defendant Company?

The law is that libel is a actionable and proof of damages is unnecessary. The reason for the law on this point as it stands is not far fetched. Libel is a civil wrong and the law implies general damages once libel is proved, there is a presumption of damages. The primary aim of damages is to place the Plaintiff in as good a position as far as money can do it, as if the matter complained of had not occurred. See the case of ACCESS BANK PLC V. M.F.C.C.S. (2005) ALL FWLR PT. 251 at 305. The Plaintiff led uncontradicted evidence of him, he is a well known learned man in the society. A traditional title holder in his community and more I award to the Plaintiff per the general damages sought, the sum of N90, Million Naira under the head of general damages and the entire sum of N72 Million Naira as gross profit for special damages and N57 Million as anticipated net profit, also under special damages against defendant Company in favour of 1st and 2nd Plaintiff.” (See Pages 91-92 record of appeal).

The Defendant/Appellant was dissatisfied with this judgment and appealed to this Court in a Notice of Appeal dated and filed on 16th May, 2006. I now-wish to reproduce the said grounds of appeal with all their particulars; thus: –