Tell Communications Limited V. Colonel Mohammed Buba Marwa (2005)

LawGlobal-Hub Lead Judgment Report

KUMAI BAYANG AKAAHS, J.C.A.

This is an interlocutory appeal against the Ruling of Phillips J. delivered on the 16th July, 1999, wherein the Defendant was restrained from further writing, printing or circulating or causing to be written, printed or circulated, or otherwise publishing similar article on the Plaintiff as contained in the article in the issue of Tell Magazine No. 21 of May 24, 1999, on pages 22, 23, 24, 25, 27 and 30 thereof or any similar article, until the matter is determined. In the Writ of Summons, the Plaintiffs claim are for:

1. The sum of N250 Million (Two hundred and fifty Million Naira) damages for libel contained in the issue of the Tell Magazine No. 21 of May 24, 1999 on pages 22, 23, 24, 25, 27 and 30 of the said Magazine.
2. An injunction restraining the Defendant whether by itself or by its servants or agents from further writing, printing or circulating or causing to be written, printed or circulated or otherwise publishing of the Plaintiff the said or similar libel.

The Ruling dealt with two composite applications. The first application dated 3/6/99 was filed by the Defendant raising a preliminary objection to the competence of the suit and asking the court to strike out the writ, while the other application, dated 5/7/99 was filed by the Plaintiff seeking for an injunction to restrain the Defendant from publishing and circulating the said libel or similar libel until the trial of the action. The Preliminary Objection was dismissed while the motion for injunction succeeded and was accordingly granted. The defendant was dissatisfied with the Ruling and filed its Notice of Appeal, dated 29/7/99 containing six grounds of appeal from which the following lone issue was formulated for determination:

“Whether the learned trial Judge was right, in granting an order of Interlocutory Injunction restraining the Defendant from further writing, printing or circulating or causing to be written, printed or circulated or otherwise publishing of the plaintiff the said or any similar libel”.

The Respondent formulated the following three issues for determination which according to Mr. Sofola SAN have arisen from the Notice of Appeal namely-

(a) Having regard to the reason given by the learned trial Judge for restraining the Appellant temporarily from further writing, printing or circulating or causing to be written, printed, or circulated or otherwise publishing the article on the Respondent as contained in the issue of TELL Magazine, until the matter was determined, whether the learned trial Judge exercised her discretion judicially and judiciously.

(b) Whether the order of injunction granted by the learned trial Judge temporarily restraining the Appellant from further writing, printing or circulating or causing to be written, printed, or circulated or otherwise publishing the article on the Respondent as contained in the issue of TELL Magazine No. 21 of May 24, 1999, until the matter was determined violated the constitutional rights of the Appellant as guaranteed under section 39 of the Constitution of the Federal Republic of Nigeria, 1999 and Article 9 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap 10 Laws of the Federation of Nigeria, 1990.

(c) Whether the Appellant has been deprived of her livelihood by the granting of the interlocutory order of injunction.”

The appellant tried to substitute the brief dated 13th February, 2001, with an Appellant’s Amended Brief dated 5th October, 2005, but the application was refused. Learned Senior Counsel also gave Notice of Preliminary objection to issue 3 at paragraph 5.00 on page 18 of the Appellant’s brief, arguing that same is incompetent and should be discountenanced and struck out since it did not emanate from any of the grounds of appeal in the Notice of appeal. Learned Counsel for the Appellant conceded that the issue raised was not covered by grounds 5 and 6. He however, argued that the balance of convenience which was complained of in grounds 5 is well covered in the brief. It is my view that since the Amended Brief was struck out, there is nothing left to say on the Preliminary objection as it related to issue No. 2 in that brief. The lone issue in the Appellant’s brief is well covered by grounds 1-4 in the Notice of Appeal.

In arguing the appeal learned Counsel referred to the order made by the learned trial Judge and submitted that the learned trial Judge was wrong in granting an order of Interlocutory Injunction restraining the defendant from publishing an article that has not yet been pronounced to be defamatory of another. It is the contention of the learned Counsel for the Appellant that where a defendant in a libel suit swears to a counter-affidavit that he will justify the alleged libel the court will not grant an order of injunction pending the trial as doing so will imply that the defendant is lying. The following cases were cited in support:

BONNARD v. PERRYMAN (1891) 2 ch. 269 at 284; FRASER v. EVANS & ORS (1969) 1 Q.B. 349; ATTORNEY – GENERAL v. BRITISH BROADCASTING CORPORATION (1980) 3 WLR 109; KHASHOGGI v. I.P.C. MAGAZINES LTD & ANOR (1986) 1 WLR 1412 REGISTERED TRUSTEES OF AMORC V. AWONIYI (1991) 3 NWLR (PT 178) 245. Learned Counsel then submitted that it is not fair and will not be even handed if the plaintiff is not given an opportunity of proving his case before the injunction is granted. Conversely, it will be unfair if the defendants are not given an opportunity to justify what they have published and the plaintiff obtains an injunction which he will display. It was further submitted that by virtue of Section 39 of the Constitution every citizen has a right to freedom of dissemination of information and ideas and this right is for the public interest that individuals should posses and exercise without impediment, so long as no wrongful act is done and injunction should not be granted to restrain free speech.

The arguments of Mr. Sofola, learned Senior Counsel for the Respondent is in three parts, as shown in the three issues raised by him. The arguments are in respect of whether the learned trial Judge in granting the injunction exercised her discretion judicially and judiciously. Secondly, whether the injunction violated the constitutional rights of the Appellant as guaranteed under Section 39 of the Constitution of the Federal Republic of Nigeria, 1999 and Article 9 of the African charter on Human and Peoples Right (Ratification and Enforcement) Act Cap 10 Laws of the Federation of Nigeria, 1990 and lastly whether the Appellant has been deprived of her livelihood by the granting of the injunction. Learned Senior Counsel submitted that the complaint of the Appellant is directly against the exercise of the discretion of the trial Judge in granting the interlocutory order of injunction against it. While conceding that the authorities cited by the Appellant in its brief are in support of the refusal of an interlocutory order of injunction in libel; nevertheless, they are not the yardstick for making wide blanket statement that the lower court was wrong in granting the injunction in the libel matter before her. It is the contention of learned Senior Counsel that the order of injunction being an exercise of discretion is granted on the peculiar and particular facts of the case before the court and each case must be treated on its merit. It is submitted that an interlocutory order of injunction will readily be granted if it could be shown prima facie that the matter complained of was libelous in nature and that any court (or jury) would have found that the refusal was unreasonable. The following cases were cited in support:

JARRAHDALE TIMBER CO. LTD & MILEAN BROS LIMITED V. TEMPERLY & CO. AND ELLIOT & SONS (1894) 11 T.L.R 119; LONDON & NORTHERN BANK LTD V. GEORGES NEWNES LTD (1899) 16 T.L.R. 76. Reference was made to paragraphs 13 and 14 of the statement of claim which show that the words complained of are libelous in nature and it would be unreasonable not to grant the injunction. It was contended that since the Appellant did not controvert paragraphs 7, 8, 9 and 10 of the affidavit in support, the motive for the publication was art improper one and although, the court is reluctant to grant an Interlocutory order of injunction in libel cases where the Defendant honestly raised a defence of justification or qualified privilege, in the instant case, the Appellant has not honestly raised the defence of justification as it only indicated a reliance on the defence of justification without more. The Appellant claimed justification of the libelous publication by relying on the right of the members of the public to know everything about the conduct of the Respondent while in public office even if the publication was malicious and without basis. Citing NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALIA LTD V. GTV CORPORATION PTY LTD (1989) V.R. 747; CHOPPEL V. TCN CHANNEL NINE PTY LTD (1988) 4 NWLR 153 and BRYANSTON FINANCE V. DE VRIES (1975) 2 All E.R. 609 at 621 learned Senior Counsel submitted that the issue is not whether it is fair or even handed, but whether from the materials placed before the lower court, that court was right to have granted the injunction. It was submitted further that in all cases of injunction in defamation action, what is essential is that the plaintiff must satisfy the court by affidavit evidence that the Defendant intends or threatens to continue the publication of the defamatory words or statement. On damages to be awarded for publishing untrue material, it was the contention by learned Senior Counsel that the right to reputation is intangible, unquantifiable and no amount of money can assuage a person’s reputation, if it is damaged unjustifiably and the order of injunction is not a fetter to the constitutional right to freedom of speech and dissemination of information as it is a two way affair – the Press and individuals in the society which must be weighed against each other from which the court must strike a balance.

It is necessary at this stage to reproduce the Ruling in order to see the factors which the learned trial Judge took into consideration to grant the order. This is what the learned trial Judge said at pages 34-35 of the records: