African Newspapers of Nigeria Limited v. F. C. O. Coker (1973)
LawGlobal-Hub Lead Judgment Report
UDOMA, J.S.C.
This is an appeal by the defendants in a libel suit wherein judgment was entered for the plaintiff therein. The appeal is against the judgment of the High Court of Lagos State in suit No. LD/90/69 in which the claim of the plaintiff against the defendants was for a total sum of 25,000 pounds damages for defamatory words falsely and maliciously published by the defendants of and concerning the plaintiff (and also of the plaintiff in the way of his profession and office) in the issues of the daily newspaper known as Nigerian Tribune on the dates and under the captions hereunder appearing as specified in the particulars endorsed on the writ of summons.
Pleadings, having been ordered, were duly filed and delivered.
In his statement of claim, the plaintiff averred that he is and was at all material times the Permanent Secretary, Ministry of Finance in the Government of Lagos State, having formerly held office as City Treasurer of the Lagos City Council; that the defendants are printers and publishers of the daily newspaper known as the Nigerian Tribune, which has a wide circulation throughout Nigeria; that the Nigerian Tribune aforesaid on 5th February, 1969 and 11th February, 1969 respectively printed and published:
(a) of and concerning the plaintiff; and
(b) also of the said plaintiff in the way of his aforementioned offices;
the words complained of, to wit: “The Devils Advocate”
“The Nigerian Tribune hopes that the Governor of Lagos State, Colonel Mobolaji Johnson, will not be comforted by the attempt made yesterday by the Morning Post to defend the indefensible.
The Morning Post says, first of all, that any Government is free to accept or reject the findings of a Commission of Inquiry. The answer to this is, of course, that neither the Federal Military Government nor the Lagos State Government has rejected the Saville Tribunal Report. In fact, Governor Johnson’s own contention at his press conference was that the Federal Government had already probed the assets of Mr. F. C. O. Coker as required by the Tribunal but that the inquiry was conducted in secret. AND WHAT WE SAY IS THAT THE INQUIRY SHOULD NOT HAVE BEEN SECRET.
SECONDLY, the Morning Post accuses us of carrying our ‘vile and vicious campaign against the Lagos State Government’. We are quite certain that Governor Johnson knows much better. HE KNOWS THAT THIS CAMPAIGN ON WHICH WE HAVE EMBARKED IS NEITHER VILE NOR VICIOUS AND THAT IT IS A CAMPAIGN AGAINST CORRUPTION NOT AGAINST ANY PARTICULAR GOVERNMENT OF THE FEDERATION.
THIRDLY, the Morning Post calls us hypocrites because ‘the Saville Commission of Inquiry definitely opposed the appointment of Mr. Fashinro as the Town Clerk of the Lagos City Council and inspite of this Mr. Fashinro is now the Town Clerk’, THERE IS NO PARALLEL BETWEEN MR. COKER AND MR. FASHINRO. MR. FASHINRO WAS NOT FOUND GUILTY OF ANY ACT OF CORRUPTION BY THE TRIBUNAL. The Tribunal did not oppose the appointment of Mr. Fashinro as Town Clerk. What the Tribunal recommended is that in the event of Messrs Mayaki and Coker being removed from the Council their deputies should not be made to act for them because of the division among the Council’s Staff.
How can anyone honestly argue that because Mr. Fashinro was appointed Town Clerk, therefore, Mr. Coker should remain Permanent Secretary
Governor Johnson should take it that the fact that he is being defended by the Morning Post is conclusive proof that he is in the wrong. The Post defended the late civilian regime until they were wiped off. And as soon as they were no more, the Post was among the first newspapers to condemn them without any compunction or reservation. Governor Johnson should draw his own conclusions.” and
“WAR AGAINST CORRUPTION: GOVERNMENT PAPERS MUST SPEAK UP”.
Regular readers of newspapers would have noted a war of words recently going on between the Daily Times and Nigerian Tribune on one hand and the Lagos State Military Governor, Col. Mobolaji Johnson and his colleagues on the other hand.
The war so far has presented an argument whether those discredited by reports of commissions of inquiry should be allowed to hold public posts again.
To be specific the Times and the Tribune in their Keep-Nigeria-Clean Campaign have both urged Col. Johnson to dismiss Mr. S. L. Edu, former Lagos Commissioner for Health and Economic Development and Chief C. O. Coker, present Permanent Secretary for Lagos Finance Ministry from office due to the findings and the reports of the enquiries set up by Federal Military Government.
Edu resigned but Coker still sits tight.
What pained me to the bone is the apparent silence of some government newspapers.
The one that had spoken at all raised its voice in support of Johnson’s refusal to remove Coker from office and urged the other active newspapers not to labour the point that Col. Johnson admitted that Coker was his cousin.
This vindicated points raised by some witnesses at the recent sittings of Ekineh Committee on the future of the Press in Nigeria-that whatever claim a government newspaper might lay to liberalism it could not be a real mouth-piece of the public.
If the government newspapers want to disprove this aspect of their weakness they must start now and no other time else to be the vanguards of reasonable public opinion. That corrupt men should quit government appointments is reasonable enough. Says ‘DIPO ADEGBITE.
The plaintiff then alleged in his statement of claim that the words published in the Nigerian Tribune of 5th February, 1969 in their ordinary and natural meaning were understood to mean that:
(I) The Nigerian Tribune has embarked on a campaign against corruption;
(ii) there is no comparison between the case of Mr. Fashinro who was appointed Town Clerk and the plaintiff because Mr. Fashinro was not found guilty of any act of corruption; and that the words published in the Nigerian Tribune of 11th February, 1969 in their ordinary and natural meaning were understood to mean that:
(i) the defendant’s newspaper, namely, the Nigerian Tribune and another newspaper have urged the Governor of Lagos State to remove the plaintiff and others from office as part of their ‘Keep Nigeria Clean Campaign’ ;
(ii) it is reasonable to require corrupt men (like the plaintiff) to quit Government appointment; that the imputations contained in each of the publications in so far as they attack the character of the plaintiff generally or in the way of his office are false and malicious; and that by reason of the said publications the plaintiff had been greatly injured in his credit and reputation and also in his office as Permanent Secretary in the Ministry of Finance.
In their rather brief answer to these averments, the defendants admitted that they are printers and publishers of the Nigerian Tribune aforesaid and did print and publish in the issues of the said newspaper the words, the subject matter of the action. They however, denied that the words complained of in their ordinary and natural meaning bear or were understood to bear the meaning that it was reasonable to require corrupt men (like the plaintiff) to quit Government appointment. They then pleaded their main defence which is contained in paragraph 3 of their statement of defence and is in form a “rolled up plea” of fair comment and justification. We consider the plea of considerable importance in relation to the issues raised and argued in this appeal and therefore set it out in extenso hereunder.
Paragraph 3 of the statement of defence reads as follows:
“The defendants aver that in so far as the words complained of by the plaintiff in his writ of summons and paragraphs 5 and 6 of his statement of claim consist of allegations of fact, they are true in substance and in fact, in so far as they consist of expressions of opinion, they are fair comments made in good faith and without malice upon the said facts,which are matters of public interest viz, The Report of the Tribunal of Inquiry into the affairs of the Lagos City Council upon the conduct of the plaintiff in his public capacity as the City Treasurer to the Lagos City Council”
Thereafter the plaintiff filed a reply to the defendants’ statement of defence in which he not only joined issues with the defendants wherever any of the averments contained in his statement of claim was traversed, but also pleaded that the publications were actuated by malice particulars whereof were set out in the said reply.
The case then proceeded to trial. In the course of the hearing evidence was taken from both the plaintiff and the defendants. In particular the publications complained of, a report known as the Report of the Saville Tribunal of Inquiry, the Federal Military Government’s White Paper on the said report of the Saville Tribunal of Inquiry and the Daily Times issue of 31st January, 1969, were tendered, received in evidence and marked as exhibits A, B, E, F and G in that order.
The defendants called evidence in an attempt to establish justification. In this connection their principal witness, Lateef Kayode Jakande (D/W.1) drew his material solely from that part of the report of the Saville Tribunal of Inquiry which dealt with irregularities on the part of the plaintiff but without regard to the comments of the Federal Military Government as regards that part of the report as contained in the White Paper, exhibit F. The evidence given by their second witness was rejected by the court out of hand.
In a reserved judgment Sowemimo J. (as he then was) found for the plaintiff. He entered judgment for him in the sum of 2,500pounds with costs assessed at 150 guineas. .
The defendants have brought this appeal against that judgment. There are four main points of complaint against the judgment of the learned trial judge which were argued before us by Mr. Adesanya, learned counsel for the defendants.
Firstly, it was the complaint of the defendants that the learned trial judge was wrong in law in holding that in order to sustain a defence of fair comment, in commenting on the report of the Saville Tribunal of Inquiry , exhibit E, the defendant ought to have taken into consideration the comments thereon in the White Paper, exhibit F, by the Federal Military Government and that failure to do so was fatal to their defence of fair comment when the report by itself was a matter of public interest and therefore an appropriate subject of comment by anyone regardless of the Federal Military Government White Paper, exhibit F, thereon. Secondly, it was contended that the learned trial judge erred in law to hold that the basis of the comments by the defendants in urging the removal of the plaintiff from office was solely the report of the Saville Tribunal of Inquiry, exhibit E, in complete disregard by the defendants of the Federal Military Government White Paper, exhibit F, when that was not the case, and therefore that the defendants’ plea of fair comment must fail.
In the third place learned counsel complained of misdirection on the part of the learned trial judge. He submitted that the learned trial judge misdirected himself in holding that exhibits A and B, the publications complained of, that is, were not comments on the report of the Saville Tribunal of Inquiry, exhibit E, and that the allegation in the publication that the plaintiff was found guilty of any act of corruption by the Saville Tribunal was false because in fact the contrary was the case as the report aforesaid did find the plaintiff guilty of corruption having regard to what the report described as irregularities or improprieties. Finally, it was the complaint of learned counsel that the learned trial judge misdirected himself and also erred in law in failing to hold that the press conference held by the Military Governor of Lagos State in December, 1969, legitimately revived or reactivated comments on the report of the Saville Tribunal of Inquiry, exhibit E, and therefore kept the findings in the report contained alive so that the passage of time had no effect on any comments made thereon, even though in disregard of the Federal Military Government’s comments on the said report especially as there was evidence that the matters concerning the plaintiff dealt with in the report were discussed at the press conference held by the Military Governor of Lagos State. It may be mentioned, in parenthesis, that, throughout these submissions, no legal authorities were cited to the court in support of any of the propositions postulated by learned counsel for the defendants.
In answer to these complaints, Chief Williams, learned counsel for the plaintiff, in his somewhat brief submissions pointed out that, in law, for a defence of fair comment to succeed, such comment must be based on facts correctly and fairly stated; and that the facts cannot be said to be fairly and correctly stated if the whole truth is not told, that is, if part of the truth is suppressed. Learned counsel contended that in the present case on appeal, apart from anything else, the Saville Tribunal of Inquiry did not at any time find the plaintiff guilty of corruption; and that even where there was any adverse comment against the plaintiff it was in connection with personal pride and possibly over-confidence in his ability in the discharge of his responsibilities. It was also submitted by learned counsel that there was evidence, which was accepted by the learned trial judge, that in exercise of its powers under sections 1, 2 and 3 of Decree No. 51 of 1966, the Federal Military Government had carried out investigation into the assets of the plaintiff and had given him clearance; and that in spite of that the defendants had persisted to refer to him as corrupt and deliberately ignored the clearance already given. Therefore the only reasonable inference to be drawn from such a situation, contended learned counsel, is that the defendants were actuated by malice and not by an honest desire to discharge their duty to the public; and that in the circumstances the learned trial judge came to a right decision in finding for the plaintiff, as he did, and that the appeal be dismissed.
It is pertinent at this juncture to examine briefly the background to this action as disclosed by the evidence before the court and to deal with the evidence.
By an instrument dated 2nd June, 1966, the Lagos City Council Tribunal of Inquiry, which subsequently became known for short as the Saville Tribunal of Inquiry because Mr. A. G. Saville, an Administrative Officer, was its chairman, was set up to enquire into the administration, management and finance policy of the Lagos City Council for the period 15th October, 1962 to 18th April, 1966 and to report and make recommendations. The Tribunal was constituted under and by virtue of the Tribunals of Inquiry Decree, 1966. It reported to the Head of the Federal Military Government on 14th October, 1966. The report, exhibit E, was released to the public together with a White Paper, exhibit F, entitled:
“Comments of the Federal Military Government on The Report of the Tribunal of Inquiry into the Affairs of the Lagos City Council, 1966.”
The plaintiff was Treasurer to the Lagos City Council during the material period covered by the Inquiry.
In its conclusions the Tribunal in dealing with the finances of the plaintiff in particular found
“That Mr. Coker’s bank accounts both in Nigeria and the United Kingdom, for the period covered by our Inquiry, are straightforward. We cannot account precisely for all the payments made into them, but in the absence of additional or adverse evidence, we are constrained to accept both these and the declarations of his assets as being a genuine statement of his financial position.
Only one specific allegation of corruption was made against Mr. Coker during the course of our Inquiry, and this we believe to have been patently false. Subject to anything which such an additional investigation may reveal, we consider that there are ample grounds to reject accusations that Mr. Coker has used his position corruptly as being inspired and malicious.”
On that aspect of its finding the Tribunal recommended
“(i) that the assets of Mr. S. J. Mayaki, Town Clerk, Mr. F. C. O. Coker, City Treasurer, and Chief J. A. Odeku, former Chairman of the Board of the Lagos City Transport Service, should be further probed; and
(ii) that all the senior officers of the Lagos City Council with more than three years’ service should be asked to declare their assets.”
These recommendations were accepted by the Federal Military Government, which then indicated in the White Paper, exhibit F, that it had already taken steps to implement the recommendations. In other words, that the assets of the plaintiff had been investigated.
The Tribunal then turned to examine what it described as irregularities alleged to have been committed by the plaintiff and found as follows:
“(a) that the allegation by a Mr. Akpan Udon and a Mr. Ogunro (a former employee of the Taxi Drivers’ Union) that gifts of money, whisky and turkeys were made to Alhaji Masha and to Mr. Coker to induce them to issue hackney permits to the Union were not proved and we have no hesitation in rejecting them;
Whereas in our view, the operation of taxis should be the exclusive business of those who wish to live by it, particularly a class of owner drivers, Mr. Coker has made the operation of taxis the exclusive preserve of the already rich or otherwise gainfully employed. This has led to an unsavory traffic in the sale of hackney permits or the hire of hackney permits for exorbitant sums.
We hold Mr.Coker solely responsible for this state of affairs, although we do not suggest that he has personally gained anything from the issue of permits other than a gratifying feeling of satisfaction in the power he has exercised..
(b) that having devised a procedure for which the Assessment Act makes no provision, whereby the annual value of buildings for rating purposes may be reduced when they are not occupied, Mr. Coker applied this in his capacity as appraiser to his own house at No. 31 Alara Street. Although he later paid the rates which he was thus relieved from paying, we consider his action reprehensible and deserving of condemnation;
(c) that Mr. Coker stretched the possible interpretation of the Assessment Act and the Lagos Local Government Act beyond the reasonable limits when he progressively reduced the annual value of the Mainland Hotel and waived certain payments of rates and interests owed by its proprietors. We do not condemn outright his intervention in this matter to curb the possibly misguided enthusiasm of Mr. Giwa, as Valuation Officer, but we feel that, whatever pressure may have been put on him, he treated the proprietors of the Hotel with unjustifiable leniency. We do not suggest that he derived any personal gain from his actions;
(d) that Mr. Coker’s dismissal of a clerk, Mr. Owolabi, made the latter the scape-goat in an unsavoury bid by the Council to strengthen its defence in a law suit. Mr. Owolabi was held to be the person responsible for the temporary removal of the originals from safe custody;
(e) that it is wrong for members of the Council staff to be permitted to buy the unserviceable stores of the Council and that the Government practice which forbids civil servants to buy Government stores, often in the open competition of auction sales, should have been adopted by the Council; and
(f) that Mr. Coker’s practice of fixing reserved prices on articles boarded by the Council and then permitting their sale at these prices prior to the dates when they should have been auctioned to members of the staff of the Council and their friends, including himself and his own friends or relatives, was improper.”
On these irregularities the Tribunal recommended the followings:
“(i) That in seeking to interprete the Assessment Act on occasion where its provisions do not appear to be clear to the Appraiser and his officer, the Council should proceed by way of a declaratory action in the High Court;.
(ii) that the City Treasurer should continue to be the Appraiser, although there is no positive reason why some other officer of the Council should not hold this appointment;
(iii) that in view of the general undercurrent of suggestions during the Inquiry that the senior officials of the City Council were corrupt, we feel that it will be desirable, in his own interest, if Mr. Coker were called upon to amplify his declaration of his assets by explaining how and at what cost these came into his possession; and
(iv) that appropriate steps be taken to bring it clearly home to Mr. Coker, The City Treasurer, that the improprieties of which he had been guilty are such as would, in the circumstances of any countries, merit his compulsory retirement had he not earlier taken the only honorable course open to him and resigned……On the other hand, we are acutely conscious that Mr. Coker is a very able man and that he has, in the course of years rendered considerable service to Lagos.
Assuming that a detailed investigation of his assets does not reveal that he has used his present office with any greater impropriety than this report suggests, we trust that his undoubted talents need not be wasted, and that in a different capacity, he may still be permitted to use them for the benefit of his country.”
In dealing with these irregularities, the Federal Military Government said:
“The Federal Government accepts the recommendation that Mr. Coker’s assets be further probed and that, if the result of such further investigation does not disclose any further impropriety than is suggested in the Tribunal’s report, it is difficult to see how Mr. Coker’s ‘undoubted talents’ can be used ‘for the benefit of his country’ otherwise than in his capacity of City Treasurer. Indeed, the Tribunal itself summarises the position thus:
‘we doubt if any local government body in Nigeria organised on similar lines has as its Treasurer a man who understands his job as does Mr. Coker.’
Earlier in the same passage the Tribunal has this to say: ‘The staff of the City Council who threatened to strike in 1963 described Mr. Coker as “aristocratic” ‘. We think we understand what they meant. His arrogance is not the normal arrogance of wealth, for Mr. Coker seems essentially to be a man of modest tastes and not given to flamboyance but rather an arrogance borne of his awareness of his own undoubted competence and ability and of the standards of efficiency which he no doubt sets for himself and those who work for him.
The Tribunal however, ends on this note: ‘He showed no signs of having been chastened by his quite long ordeal as a witness before our Inquiry, but we hope he has been.’
The Federal Government, while endorsing the sentiment implicit in this remark, takes the view that Mr. Coker should be severely reprimanded for the improprieties he has committed, that he should also be warned about the danger of now showing a marked improvement in his work or of a sincere change of heart, but that he should not be removed from his present post as a result only of this report.”
Thus the Federal Military Government, not only rejected the recommendations that the plaintiff should be compulsorily retired by reason of the irregularities or improprieties, but also embarked upon enquiries into the assets of the plaintiff as well as accepted the finding that no act of corruption had been proved against him.
On or about 20th January, 1969, that is, about three years after the publication of both the report of the Tribunal, exhibit E, and of the Government White Paper thereon, exhibit F, His Excellency, the Military Governor of Lagos State held a press conference in the course whereof, in answer to questions apparently put to him, he indicated that the assets of the plaintiff had already been investigated and the plaintiff cleared by the Federal Military Government whose responsibility it was to do so since the Tribunal of Inquiry was set up by it. He there and then also disclosed that the plaintiff was already in the service of Lagos State Government as Permanent Secretary, Ministry of Finance.
From the proceedings on appeal, the press conference by His Excellency, the Military Governor, on that occasion appeared to have stirred the hornet’s nest. It set tongues wagging. The statement concerning the plaintiff by His Excellency, the Military Governor, on the occasion was published in the local press including the Daily Times of 31st January, 1969 exhibit G.
Then in the issue of 4th February, 1969 exhibit C, under the caption: “Hypocrites, Stones and Glass Houses” there was published an editorial in the Morning Post-a Federal Government Newspaper-which was critical of those who appeared to have regarded with disfavour the statement about the plaintiff by His Excellency, the Military Governor of Lagos State at his press conference. The article also defended the appointment of the plaintiff as the Permanent Secretary, Ministry of Finance, Lagos State Government. There then came in hot pursuit the publications, exhibits A and B, the subject matter of the appeal in hand. The publication, exhibit A-an editorial-was titled “The Devil’s Advocate” and is dated 5th February, 1969; and the other one, exhibit B, which was captioned “War Against Corruption: Government Papers Must Speak Up” is dated 11th February, 1969.
The plain issues for determination by this Court are:
(i) whether publications A and B were fair comments on matters of public interest;
(ii) whether the publications were comments on the report of the Saville Tribunal of Inquiry, exhibit E; and
(iii) whether the comments were actuated by malice.
From the outset it is necessary to observe that privilege was not pleaded as a defence nor throughout the trial was any attempt made to lead evidence to establish that the comments were made on a privileged occasion on matters of public -interest. There was no submission made to us on the issue of privilege.
We proceed to consider the questions set out above, but before doing so, it is significant to note that one of the most important points made in the editorial entitled “Hypocrites, Stones and Glass Houses” was the fact that the newspapers which had criticised the appointment of the plaintiff deliberately ignored the White Paper, exhibit F, issued by the Federal Military Government, as regards the character and assets of the plaintiff. This point is significant because it is the crux of the case against the defendants in this appeal as indicating a deliberate act of “supresso veri, suggestio falsi” and therefore must have some effect on any defence of fair comment. It is trite law that to sustain the defence of fair comment the whole of the facts must be correctly and fairly stated, or the premise upon which the comment is based must be the whole truth. Anything short of these would destroy the defence of fair comment. In the case on appeal, what is worse is that the learned trial judge found, and we agree with him, that the publications, exhibits A and B, complained of were not comments on the report of the Saville Tribunal of Inquiry at all.
In this connection, the learned trial judge, in the course of his judgment, after referring to sections 8 and 9 of the Defamation Act, 1961, which stipulate the circumstances in which defence of fair comment and privilege respectively would avail a defendant said:
“I must at this stage say that the defendant’s counsel had concentrated on the Saville Tribunal of Inquiry report and made no reference whatsoever to comments of the Federal Military Government as contained in exhibit F. In order to claim fair comment on a privileged document both the report of the Saville Tribunal of Inquiry must be considered along with the comments of the Federal Military Government on that report.”
And further:
“Suffice it to say that at this stage, exhibits A and B, as was contended by the plaintiff’s counsel, are not comments in any shape or form on the report of the Saville Tribunal of Inquiry. ”
The learned trial judge then proceeded to find as a fact that the first publication, exhibit A, captioned: “The Devil’s Advocate” was a reply to the editorial of the Morning Post of 4th February, 1969 which was itself titled “Hypocrites, Stones and Glass Houses”; and that the second publication, exhibit B, captioned: “War Against Corruption: Government Papers Must Speak Up” was not comment even on the report of the Saville Tribunal of Inquiry. With these findings we agree.
We think that the defendants did their cause more harm by embarking on fair comment and justification as their defence. The only evidence of justification which they relied upon was merely to repeat the eight different acts which were described in the report of the Saville Tribunal of Inquiry, exhibit E, as irregularities, and these they labelled “acts of corruption.” Those acts of irregularities or improprieties were thoroughly examined by the Federal Military Government which, while endorsing the sentiment implicit in the Tribunal’s report, had considered them not of the magnitude to warrant the compulsory removal of the plaintiff from his post. The investigation was carried out by the Federal Military Government in the exercise of its powers in terms of sections 1, 2 and 3 of the Public Officers (Investigation of Assets) Decree No. 51 of 1966. The defendants were apparently not satisfied. They continued to campaign that the investigation was not properly done as it was done in secret and that the plaintiff was corrupt. Such persistent campaigning would inferentially be evidence of malice, sufficient to destroy the defence of fair comment. In our view, the unsuccessful attempt to justify the charge of corruption when even the report of the Saville Tribunal of Inquiry, exhibit E, had said:
“Only one specific allegation of corruption was made against Mr. Coker during the course of our Inquiry and this we believe to have been patently false.’ gravely aggravated the case against the defendants. We entertain no doubt that the defence was a mere repetition of the libel, the subject-matter of the action. .
The learned trial judge also found abundant evidence of malice on the part of the defendants. With these findings we also agree. As was said in Salmon vs. Isaac 20 L.T.R. 885 by Hannen J. in directing a jury in a libel suit, at p. 886:
“The motives of him who makes defamatory statements on such an occasion are prima facie innocent, but it is always open to the injured party to show by evidence that they were not so in reality. In other words express malice may be proved, and privilege then affords no protection.
To apply these remarks to the present case: It is for the public interest that facilities should be afforded to the public for acquainting itself with the details of the administration of the law. Accordingly, anyone is at liberty to publish a fair report of proceedings in a court of justice although such report may contain matter damaging the character of individuals. A newspaper has no greater privilege in such a matter than any ordinary person-any person is privileged in publishing such a report if he does so merely to inform the public. But if you can infer from the circumstances attending the publication that it was really made not with a view to the information of the public, but for the purpose of injuring some individual, the publisher will be liable in damages to the person whose character he has injured.”
Learned counsel for the plaintiff, in his submissions, suggested that the probable defence which was open to the defendants on the authority of Chapman vs. Lord Ellemere and Others [1932] 2 K.B. 431 was qualified privilege. This may be so. But as privilege, whether absolute or qualified was neither pleaded nor raised and argued before us, we refuse to be drawn into any speculation in this regard and therefore express no opinion thereon.
In the circumstances, we are satisfied that the learned trial judge came to a right conclusion when he held that the defence of fair comment and justification failed, and that the plaintiff was entitled to judgment. This appeal therefore fails. It is dismissed as lacking in substance. The plaintiff is awarded costs of the appeal assessed and fixed at N86.
Appeal dismissed.
Other Citation: (1973) LCN/1715(SC)
