A. Ufua V. F. A. Eborieme (1993)

LawGlobal-Hub Lead Judgment Report

JOSEPH DIEKOLA OGUNDERE, J.C.A.

Before his Lordship J. A. Obi, J. at the Benin City High Court, the plaintiff a Senior Tutor at Edo College, Benin, now appellant brought an action in libel against the defendant a clergyman and educationist, now respondent, and in his Statement of Claim averred inter alia as follows:-

3. Plaintiff avers that on or about the 31st day of July 1983, the defendant falsely and maliciously wrote and caused to be published and published at page 8 of the Newspaper known as the “SUNDAY SUN” Vol. V. No. 28 of 31st July, 1983 a newspaper having wide circulation throughout Nigeria and outside Nigeria of and concerning the plaintiff the words following. That is to say:-

“‘the world knows the type of person Mr. & Mrs Ufua are. They are unscrupulous blackmailers, dirty liars, shameless, garrulous and canterkerous couple, if you had taken the trouble to see me, I would have put into your hands documents exposing the stinking antecedents of the lives of Mr & Mrs Ufua which would have made you shun them like plagues…………”

4. Plaintiff avers that the said words in their material and ordinary meaning are libellous and calculated to incite the public against the plaintiff and his wife.
5. Plaintiff avers further that by the publication of the said words the plaintiff has been greatly injured in his credit and reputation and been brought to scandal, odium, and contempt.
6. Plaintiff states that he did not authorize, nor did the publication to which the defendant was purportedly replying originate from the plaintiff.
7. The plaintiff avers further again that, because of the fact that he had no dealings with “SUNDAY SUN” at anytime, he had sued the editor of the newspaper in Suit No. B/28/87.
8. Whereof the plaintiff claims from the defendant the sum of N1,000,000.00 (One million Naira) for damages for libel.

The defendant in paragraphs 2 to 4 of his amended statement of defence admitted paragraph 3 of the statement of claim, that is the libellous words complained of and averred as follows:-

3. The defendant admits paragraph 3 of the statement of claim but he will contend, prove and conclusively establish at the trial that the said words were taken from one letter of 25/7/83 which he addressed to the Editor, Sunday Sun, Benin City in response to the front page publication in Vol. V No.26 of 17/7/83 of that Sunday newspaper captioned “CANON IN SEX SCANDAL.” Further to the said paragraph 3 of the statement of claim, the defendant will adduce credible and compelling evidence at the trial to prove the following facts, that is to say:-

(a) That as at 17/7/83, he was the Chairman of the Bendel State Teaching Service Commission, a body charged with the responsibility, among other things, of managing and controlling both primary and secondary schools in Bendel State of Nigeria including employment, payment and discipline of teachers in the said schools.

(b) That from the heading to, and body of, the said publication in the said Sunday Sun, it is clear beyond doubt that he is/was the person referred to.

(c) That it was the plaintiff who published or caused to be published the scandalous and defamatory words therein contained because all the offending and libellous words therein constitute the substance of the letter of 16/11/81 addressed by the plaintiff to him (the defendant)

…………..

(e) That by a letter dated 15/9/82, the plaintiff tendered unreserved apology to the defendant in respect of the said letter of 16/11/81 which he, the plaintiff, wrote to him.

4. The defendant categorically denies paragraphs 4 and 5 of the statement of claim and the plaintiff will be put to the strictest proof of all his averments in the said paragraphs. Further to paragraphs 4 and 5 of the statement of claim, the defendant will contend at the trial of this action that even if this Honourable Court finds that the words complained of are defamatory, the defence of justification is open to him. In this regard, the defendant will aver and maintain at the trial of this action that in so far as the words complained of are allegations of fact, they are true in both substance and in fact and in so far as they are expressions of opinion, they will be shown at the trial to be fair comments made in good faith devoid of malice upon matters of public interest. In support of the foregoing, the defendant will tender incontrovertible evidence to establish at the trial that with the knowledge and tacit or covert approval of the plaintiff, his wife, Mrs Grace O. Ufua, used a forged Teachers Grade two Certificate (T.C. II) to claim large sums by way of arrears of salaries from the Teaching Service Commission which was then under his chairmanship. In further proof that the plaintiff and his wife have neither good reputation and, or integrity ………………………..
5. With respect to paragraph 6 of the Statement of Claim, the defendant will lead unchallengeable evidence at the trial to show that the source of the materials in the malicious and false publication of and concerning him in the Sunday Sun of 17/7/83 was the plaintiff. As has already been shown in this statement of defence, the substance of the said publication was lifted from the letter of 16/11/81, which the plaintiff addressed to the defendant from Cardiff, South Wales. In any event, the defendant will establish at the trial by cogent and credible evidence that he was not and indeed could not have been the source of the publication of 17/7/83, which was and still is very damaging to his reputation, integrity and credit and where he was held up to public ridicule, odium, disgrace and shame, especially as he is a PRIEST whose duty, inter alia, is to set good example in morals and morality.”

The defendant in the said Statement of Defence counter-claimed as follows:-

8. In the Sunday Sun Vol. V. No. 26. of 17/7/83 under the heading “CANON IN SEX SCANDAL the plaintiff maliciously and falsely published of an concerning the defendant, the following words, that is to say:-

“THE GREATEST sex scandal of the century will soon rock the Ministry of Education in Bendel State. The scandal involves a Reverend Canon and a Grade II teacher under his supervision.:

“Many documents which featured in the sex scandal are already available to the SUNDAY SUN………………………………”Our reporter said, when the scandal is wripped off, a very prominent educationist will be the central figure.

“This, he reported, was as a result of a letter of protest dated November 16, 1981 written by the husband of the Grade Two teacher.

“At the time of the scandal, the husband of the grade two teacher, we of the SUNDAY SUN chose to call

“A2,U.” was reading at the University of Cardiff..

“He was staying at Flat C.3 Froom 5.Senghennydd, Cardiff C.FI IUJ, South Wales.,…………………… “Mrs G.U. was alleged by the fighting team from the Reverend Canon’s side to have been flirting with my husband.”………………………”All attempts to contact the Reverend gentleman to comment failed as I was rebuked the number of times I visited.”

9. The defendant will found on the entire publication at the trial. Also the defendant will tender evidence to the effect that he is the person and nobody else referred to in the said publication as “Reverend Canon”

“Prominent educationist” and the letter dated 16/11/81 referred to therein was the one addressed to him by the plaintiff.

Furthermore, the defendant will prove at the trial that the husband referred to as “A2.U.” in the publication in question is the plaintiff whose initials and surname are A. A. and Ufua respectively. In the same way, “Mrs G. U.” in the said publication is the short form for “Mrs Grace Ugua.”

10. By the said words, the plaintiff meant and was understood to mean that the defendant who is a well known and distinguished educationist and a Reverend gentleman is/was morally depraved and he was/is shamelessly living an adulterous life with a married grade two teacher under him with regard (by implication at least), to ‘his high office as the Chairman of the Teaching Service Commission and the fact that he is a spiritual leader, who ought to set high moral standards for others to emulate. At the trial, therefore, the defendant will assert and contend that the SUNDAY SUN had wide circulation in Nigeria generally and Bendel State in particular and, consequently, by the publication of the said words maliciously and falsely to the world at large, the reputation and credit of the defendant have been greatly injured and, what is equally devastating damaging his good name and impeccable character have been falsely and maliciously exposed to public shame, odium, contempt and disgrace.
11. In the promises, the defendant’s counter-claim against the plaintiff is as follows:-

(a) N1,000,000.00 (One million naira) general damages for libel, which the plaintiff published or caused to be published in the Sunday Sun of 17/7/83;

(b) An order of perpetual injunction restraining the plaintiff whether by himself, his servants and, or agents from further writing or in anyway howsoever publishing defamatory words of and concerning him (the defendant). Dated at Benin City this 25th day of February, 1988.

In the plaintiff’s reply to the statement of defence and counter-claim, it was averred, inter alia as follows:-

1. In reply to paragraph 3 of the Statement of Defence the plaintiff avers that he wrote in confidence to the defendant about disheartening news he received from his wife while abroad and say that the said letter was carefully written and carefully addressed to the defendant in his private name and was properly sealed before posting. Plaintiff neither retained any copy nor copy any other person and did not in particular send to the wife or the press including the Sunday Sun. Publication to any other person or organization is either the handiwork of the defendant or due to his carelessness or negligence.
2. In reply to paragraph 4 of the statement of defence the plaintiff avers that in publishing the said libel the defendant was actuated by express malice.

REPLY TO COUNTER CLAIM

3. Save and except as is hereinafter expressly admitted the plaintiff denies each and every allegation of fact contained in the defendant’s counter-claim as if each were specifically set down and trasversed seriatim.
4. Paragraph 8 of the counter-claim is vehemently denied.
5. In answer to paragraph 9 of the counter claim the plaintiff avers that if his hand-written letter of 16/11/81 ever got to 3rd parties it must have been published by the defendant or through his fault as the letter was properly sealed and properly posted to the defendant in his private name and the letter was not written in more than the original and no photocopy was made before posting as there was extreme cordiality between the parties.
6. In further answer to paragraphs 8, 9, 10, and 11 of the counter-claim the plaintiff avers that even if publication by the plaintiff is proved, which is denied, the plaintiff shall rely on qualified privilege and fair comment both at common law and under the defamation law in that as far as the alleged words are statements of facts they are matters in which both parties have common interest and the defendant was a person in authority which could redress the wrong; and as far as they are opinion, they are fair in the circumstance and were made without malice or ill-will.

PARTICULARS

(a) Defendant was the head of his family and was in position to talk to his wife and children about the unwholesome rumor being peddled about plaintiff’s wife.

(b) Defendant was a close confidant and moral benefactor of the plaintiff and his wife.

(c) Plaintiff wrote an apology to the defendant on 15/9/82 after the receipt of defendant’s explanatory letter. Both letters shall be founded upon.

7. The plaintiff avers that he is not liable to the defendant in the sum claimed in the counter-claim or any other relief whatsoever and shall urge court to dismiss the counter claim as being frivolous and an abuse of the Court’s process.

For ease of reference, “Exhibit 1C” is the publication in the Sunday Sun of 17th July 1983 captioned “Canon in Sex Scandal”. “Exhibit 1A” contains the words complained of by the plaintiff in his statement of claim and is an Article in the Sunday Sun of 31st July 1983 which was a reply to the article “Exhibit 1C.”

The learned trial Judge after taking the evidence of the parties made the following findings:

“To refer to the plaintiff and his wife as unscrupulous blackmailers, dirty liars, shameless, garrulous and cantankerous couple is, to say the least, defamatory in their natural and ordinary meaning. And as if these are not bad enough, the further assertion that the defendant had in his possession documents which if published, would render the plaintiff and his wife liable to be shunned like plague is, to put stamp of authenticity to the entire allegations. I am therefore not surprised, that defence has not argued that the words complained of, are not libelous, his main contention is that there was no publication simply because, the plaintiff called no one to say that he read the injurious publication the effect of which, was that he now thinks less of the reputation of the plaintiff. I am inclined to agree with the legal contention of learned counsel for the plaintiff that it is not a necessary requirement in the circumstances of the present case in order to succeed, that a third party who read the publication should be called as a third party as to what he thought of the plaintiff, cannot affect the matter where as in the instant case, the words in their natural and ordinary meaning, convey clearly defamatory imputation. Thus in Hough v London Express (1940) 2 KB 501.

The learned trial Judge then made other findings of facts thus:-

“I am under no illusions whatsoever, that Exhibit ‘1C’ called for reply from the defendant. The central characters mentioned in Exhibit ‘1C’ are the plaintiff and his wife, and what the newspaper sought to put together consisted of documents emanating from the plaintiff, his wife and from the defendant himself. There was no way therefore, the defendant could have replied to all the imputations contained in Exhibit ‘1C’ without referring to the plaintiff and his wife…………………….

It is my clear view, that reading the entire content of Exhibit ‘1A’, I form the clear view that though couched in very strongly worded terms, it cannot be said that the defendant was not entitled to put forward a defence to his character which was dangerously assaulted in the publication contained in Exhibit ‘1C’. He can only be said to have overstepped the bounds of defence and thus acted maliciously if what he wrote are demonstrably false and false to his knowledge.”

On the defence of justification put up in the statement of defence, the learned trial Judge found as follows:-

“In paragraph four of the statement of defence and counter-claim as already shown, the defendant furnished particulars relied upon for the plea of justification consisting mainly, a documents, relating to the conduct of plaintiff’s wife throughout her tenure of office as a teacher. At the trial of the action, some if not all of these documents, were tendered in evidence but these have connection only with plaintiff’s wife. There is no doubt that having regard to these documentary evidence tendered by the defence that, the entire offending words reproduced above are, apt description of Mrs Ufua, but the justification which will avail the defence in this case, is one which establishes the truth of the offending imputation in relation to the offending imputation in relation to the plaintiff. His wife might have been anything but good in character and reputation, but that is no reason to lump her up together with her husband the plaintiff, as unscrupulous blackmailers, dirty liars, shameless, garrulous whose stinking antecedents would make anyone shun them. To justify the said imputations against the plaintiff, it must be pleaded and established in evidence the truth of the libel in relation of the plaintiff. In this regard, the only document which has the remotest hearing with the plaintiff is Exhibit ‘6A’ whose contents have been reproduced already in this judgment. The plaintiff is connected with this document, because he is said to be the author of it merely appending his wife’s name as the writer of it. The plaintiff himself has admitted in court that Exhibit ‘6A’ is in his own handwriting, that his wife did not even sign the document and that it was he who also wrote thereon “Mrs. G.O. Ufua.” ……………………………………….

I have no doubt in mind, that the story contained in Exhibit ‘6A’ alleging immoral conduct against the defendant is clear fabrication, but it would be the story told by Mrs Ufua which the plaintiff wrote down on her behalf and this does not make the plaintiff a liar unless it is established in evidence that he wrote same knowing it to be false ………..

With this meaning in mind, it is my view that no iota of evidence was led to establish that plaintiff at any time extorted or attempted to extort money from anyone under threat of exposure. …………….In the same way, it is clear to me that no evidence worth the name, was led to substantiate the imputation that the plain tiff is garrulous or cantankerous. It is my finding of fact, that the truth of the libel is not established and by implication, that the same is false and therefore malicious. That being the case, the defence of fair comment or right to reply is not available to the defendant……………………Where the reply or comment is shown to be a cloak to put forth another kind of defamation as revenge, the defence is not sustainable. See Gatley on Libel 14th Edition, paragraphs 552 to 556, referred to, by learned counsel for the plaintiff………………….I am of the firm view that there is no justification for the defamatory imputation made against the plaintiff by the defendant who though quite entitled to write what he called rejoinder to what was published of and concerning him in Exhibit ‘1C’, he was not entitled to make obviously damaging, and unfounded imputation which portrays the plaintiff as a man of dishonourable conduct. Plaintiff’s action therefore, must succeed and I so hold.”

As to the counter-claim, the learned trial Judge found as follows:-

“There is no direct evidence that the plaintiff hat any direct communication with Mr. Charles Edo (DW2) the Editor, of the defunct ‘Sunday Sun’ newspaper. In what manner therefore, can it be said that plaintiff procured or showed approbation for the publication of the libel?……………I hold that the source of plaintiff’s wife coming into possession of the content of Exhibit ‘2’ is the plaintiff himself. I do not believe him when he said that he kept no copy of Exhibit ‘2’ …………………………. The inference is irresistible and I so hold, that it was the plaintiff who gave the documents to his wife, for the sole purpose of publication in the ‘Sunday Sun’. Publication therefore was made with his tacit acquiescence and approbation, using his wife as means through which the relevant documents got to the Editor of the ‘Sunday Sun’ clearly therefore, the plaintiff was as much responsible for the publication .f the libel as his wife who actually made the request that the documents be published and, as much as, the Editor of ‘Sunday Sun’ who actually published it………………….

In the circumstances, I find no difficulty in reaching the conclusion that the plaintiff procured the publication of Exhibit ‘1C’ and that he is therefore, liable in libel to the defendant. In other words, I hold that the defendant’s claim founded on libel in his counter-claim, has equally succeeded.”

Whereupon, the learned trial Judge awarded N10,000.00 damages to the plaintiff and N20,000 damages to the defendant.

The two parties were dissatisfied with the judgment and appealed. The plaintiff appealed on the following grounds:-

1. The decision of the learned trial Judge is against the weight of evidence.
2. The learned trial Judge erred in law in imputing to the plaintiff/appellant the publication of the alleged defamatory statement when it is evidence from the records that Mrs Ufua and not the appellant was responsible for the publication.
3. The award of N20,000 damages against the plaintiff/appellant is excessive.

The following additional grounds shorn of their particulars were also filed:-

4. The learned trial Judge misdirected himself on the facts and came to a wrong conclusion when he held that

“The inference is irresistible and I so hold, that it was the plaintiff who gave the documents to his wife for the sole purpose of publication in the ‘Sunday Sun’”

5. The learned trial Judge erred in law and on the facts when he held that

“the plaintiff was as much responsible for the publication of the libel as his wife who actually made the request that the documents be published and, as much as, the editor or ‘Sunday Sun’ who actually published it.”

6. The learned trial Judge erred in law and occasioned a grave miscarriage of justice when he held the plaintiff liable for the libel he did not publish.
7. The learned trial Judge erred in law and on the facts when he held that Mrs Ufua, the plaintiff and the Editor of the Sunday Sun are jointly responsible for the publication of the alleged libel against the Defendant.
8. The learned trial Judge misdirected himself on the facts and came to wrong conclusions when he held

(a) “I am fortified in my findings and belief by the fact that at this time, plaintiff and his wife were up in arms against the Defendant” (page 102 lines 23-25 ).

(b) “I find no difficulty in reaching the conclusion that the plaintiff procured the publication of Exhibit 1C and that he is therefore, liable in libel to the Defendant” (page 103 lines 9 – 12).

9. The learned trial Judge erred in law when he found the Defendant liable for libel without considering and deciding the Defences of qualified privilege and fair comment under the defamation law and at common law in the reply of the Defendant to the Counter claim and thereby occasioned grave miscarriage of justice.

The defendant’s grounds of his cross appeal on his counter claim which shorn of the particulars are as follows:-

(1) The learned trial Judge erred in law in failing to give judgment to the defendant in arm (b) of his counter-claim in that having found the plaintiff liable to the defendant in his counterclaim for libel against the plaintiff, it was incumbent on him (the learned trial Judge) to grant him (the defendant) the relief sought in arm (b) of his, the defendant’s claim.

(2) The learned trial Judge erred in law in giving judgment to the plaintiff in the sum of N10,000 in respect of his claim, which ought to have been dismissed in its entirety.

(3) The learned trial Judge erred in law in delivering judgment in favour of the plaintiff in his libel claim against the defendant.

(4) The learned trial Judge erred in law in awarding N10,000.00 damages, which are excessive.

(5) The learned trial Judge misdirected himself in law in holding that “I found him liable because it is no answer to claim in libel for the defendant to say that it was the plaintiff that libeled him first” and proceeded to award N10,000.00 damages for libel in favour of the plaintiff.

(6) The learned trial Judge misdirected himself on the facts when he held that “it was clearly open to him (the defendant) to seek remedy at law.”

(7) The judgment of the learned trial Judge is against the weight of evidence.

The appellant filed and served a brief of arguments; the respondent filed and served a respondent’s brief incorporating cross appellant’s brief; whilst the appellant also filed and served a respondent’s brief to the cross appeal. All these briefs were adopted by counsel on both sides at the hearing of this appeal.

The issues for determination set down in the appellant’s brief are as follows:-

Was there evidence in proof of the fact that the appellant gave Exhibits ‘2’ and ‘5A’ to his wife, Mrs Ufua for the sole purpose of publication in the Newspaper known as the Sunday Sun?

Was the lower court right in holding the appellant and his wife equally responsible for the publication of the libel in the Sunday Sun in view of the admission and evidence of DW2, the Editor of the Newspaper?

Was it proper for the court to make findings on issues not raised in the pleadings or not proved by evidence, and against a person who was never made a party?

Assuming that the plaintiff’s wife, Mrs Ufua gave the source materials for the libellous news item in question, in the circumstances of this case, is it still one and same libel with the libel that appeared in the Sunday Sun of 17/7/83 or any subsequent re-publication by the DW2 of the source material?

Assuming that the plaintiff’s wife could be held responsible for the publication was the lower court right in ignoring the effect of Section 12 of the Marriage Women’s Property Law, Cap. 98, L.B.S.N. 1976 which was cited by counsel?

In the circumstances of this case, can the appellant be held liable for a publication of a news item which appeared in a Newspaper where he is neither the printer, publishers, editor, servant of the publisher nor did he distribute or authorize?

Was the trial court right in giving judgment to the respondent in the counter-claim without adequately considering the defences of qualified privilege and fair comment raised in the reply to the statement of defence and counter-claim?

Was the award of N20,000.00 against the appellant not excessive in the circumstances of this case?

On issue one it was submitted that the averment in paragraph 6 of the statement of claim was that the publication of 17th July, 1983 in the Sunday Sun, Exhibit “1C” did not emanate from the appellant nor did he authorize it. The evidence of the Editor of the Sunday Sun DW2, Charles Edo was that his source of information was Mrs Ufua and that he knew neither the plaintiff nor could he recognize his handwriting.

He testified further that the plaintiff did not authorize him to publish Exhibit ‘1C’ or anything concerning the respondent. It was then submitted that the finding and belief of the learned trial Judge at page 101 of the Record that the plaintiff appellant put his wife in possession of Exhibit ‘2’ was not backed by any evidence but mere surmise. So also was the finding of the learned trial Judge at page 102 of the record that it was the plaintiff/appellant who handed over Exhibit 5A to DW2 which was denied by DW2. It was then submitted that the use of the words “I believe” in this instance cannot constitute evidence, Ozigbe & Ors. v. Aigbe & Ors. (1997) 7 SC. 1 at 11; Bozin v. The State (1985) 2 NWLR (Pt. 8) 405, 473. It was submitted that the source of materials is not publication under the law of libel. Lee v. Wilson 51 CLR 287, Hebditch v. Macllwaine (1894) 2 QB 58, 61 – 64. The mere fact that the wife of the appellant had access to libelous documents Exhibit “2” and “5A” does not constitute publication by the appellant. There was non proof of a positive act of the publication of Exhibit “1C” by the appellant, the more so as appellant’s letter of apology to the defendant Exhibit “3A” was written and delivered before the purported request of Mrs. Ufua to the Editor, nor was she called to testify for respondent. Exhibit “2” which is alleged to be the source of Exhibit “1C” was a private handwritten letter which the appellant while at Cardiff wrote the respondent which the respondent produced in court. Gately on Libel and Slander (7th Ed) paragraph 237.

On issue 8 based on ground one, it was submitted in a libel action in which the Editor of the newspaper had no duty to effect the publication complained of and which is remotely linked with the plaintiff’s wife, the award of N20,000 to the defendant was excessive where the court found that the said defendant in his counter-claim had successfully avenged himself by a libel on the plaintiff. The law is that a husband cannot be held liable in law for a libel committed by the wife under Section 12 of the Married Women Property Law, Cap. 98, Laws of Bendel State, 1976.

For the foregoing, it was urged upon this Court to answer issues 2, 3, and 5 founded on grounds 4 and 5 in the negative.

As to issues 4 and 6 it was submitted that a republication of a libel is a separate distinct libel giving rise to a separate cause of action. Exhibits 2 and 5A given to DW2 by Mrs Ufua cannot be equated to the alleged libel in Exhibit C1. As to issue 7, from the foregoing there was no evidence that the appellant published Exhibit 1C. As to issues 2, 3 and five it was submitted that there is no evidence that the appellant jointly procured the libel or that the appellant aided or abetted his wife in that regard contrary to the findings of the learned trial Judge. Upon the appellant abandoning ground 2 of the appeal, it was struck out accordingly. It was finally submitted that the appeal be allowed.

In the respondent’s brief which incorporated his brief as cross appellant, the issues for determination read thus:

(a) Whether the appellant is party to the publication of the libelous words in the Sunday Sun of 17/7/83 against the respondent.

(b) If the answer to (a) above is in the affirmative, whether the learned trial Judge was right in finding him, the appellant, liable to the respondent for libel.

(c) In the circumstances of this case and bearing in mind the status of the respondent before and at the time of the offending publication whether the award of N20,000.00 against the appellant in favour of the respondent was justified.

It was submitted that under cross examination of the appellant, he admitted that part of the content of Exhibit 2, a letter the appellant wrote the respondent while in U.K. featured in Exhibit 1 in the Sunday Sun of 31 July, 1983 thus:

“I wrote in the last paragraph of Exhibit 2 as follows:- “How embarrassing will it be I can imagine, when in the week and dailies it is captioned Rev. Canon Chairman of TSC (Teaching Service Commission) in adultery tussle with the wife (Mrs. Ufua) of a teacher (the appellant) on in service course “abroad.” I agree that the heading of Exhibit 1A is “Rev. Canon in Sex Scandal.” See page 30. (Brackets and underlining supplied for clarity and emphasis).

Further that the evidence of DW2, the Editor of Sunday Sun clearly shows that the appellant’s wife brought Exhibit 2 to him for publication as can be seen from his testimony:

“My source of information published in Exhibit 1C is Mrs Ufua, wife of the plaintiff, who came to my office and told me certain things supported by two letters by the plaintiff.”

It was then submitted that the appellant is linked with the offending publication in Exhibit 1C; its soruce as respondent’s testimony showed. The motive was argued to be the dismissal of the appellant’s wife from the teaching service based on a faked Grade II Teacher’s Certificate which she presented to secure a teaching job. The learned trial Judge was therefore right to hold:

“I believe that the defendant kept no copy of Exhibit 5A which found its way into possession of plaintiff’s wife who gave it along with Exhibit 2 to the Editor of the defunct ‘Sunday Sun’. The inference is irresistible and I so hold that it was the plaintiff who gave those documents to his wife for the sole purpose of publication in the ‘Sunday Sun’. Publication therefore was made with his tacit acquiescence and approval, using his wife as a means through which the relevant documents got to the Editor of the ‘Sunday Sun.’ Clearly, therefore, the plaintiff was as much responsible for the publication of the libel as his wife who actually made the request that the documents be published…………who actually published it.” (Underlining supplied for emphasis).

It was then urged in this Court that the appellant, his wife and the printers and publishers of the Sunday Sun and their Editor are jointly and severally liable for the publication of the libel; suit No. CA/B/118/84. His Highness D.B. Osha v. Isaac D.O. Ejabuivi in which Musdapher JCA opined thus:

“When a libel is published in a newspaper, everyone who takes part in publishing it or in procuring its publication is prima facie liable.”

The Court was then urged not to interfere with the findings of facts of the learned trial Judge as they were not perverse. Kojo v. Bonsie 14 WACA 242; Fashanu v. Adekoya (1974) 6 SC 83, 91; A.J. Dorman & Ors. v. V.A. Abdullah Transport (1977) 1 FCA 216, 221.

As to the criticism that the decision of the learned trial Judge was not based on the pleadings, it was the appellant respondent to the counter claim that failed to specifically plead Section 12 of the Married Women’s Law, which in any case is not applicable to this appeal; Haja Adeniyi & Ors. v. Tawa Adeniyi & Ors. (1972) 4 SC 10, 17; Obikoya v. Registrar of Companies (1975) 4 SC 31, 33, 34; Adegbola v. Obalaja (1978) 9 FCA 90, 95, 96.

On issue 2, the failure of the appellant to call his wife as a witness created the presumption that her evidence would not be favourable under Section 149(d) Evidence Act, 1990 Laws of the Federation.

As to issue 3 on damages, it was submitted that there was no hard and fast rules on assessment of damages in libel but that trial Courts generally take into consideration the status of the person defamed, the violence of the offending language, the conduct of the defendant up till the delivery of judgment. Finally that the law value of the naira should be taken into account; His Highness Uyo v. Felix Eguare (1974) 6 SC 103, per Coker JSC at 108. Thus the status of the respondent as a Canon of the Anglican Communion, a trained teacher and a holder of BSc Mathematics in 1957, and Diploma in Education Chemistry of Manchester 1963, and a former Chairman of the Teaching Service Commission (1980 – 1983) justified the award of N20,000 damages. It was then submitted that the appeal be dismissed.

Cross Appellant’s Brief set down the following issues for determination:

2.1 Whether the learned trial Judge was right in failing to enter judgment for the cross-appellant in arm (b) of his counter-claim after delivering judgment in his favour in arm (a) thereof.

2.2 Whether from the pleadings and evidence tendered at the trial, especially with respect to the solidarity shown by the respondent and his wife in acting together in their assault on the good name and reputation of the cross-appellant, exceeded the bounds of retort or reply by Exhibit 1A to Exhibit 1C.

2.3. Granted that the cross-appellant exceeded the limits of retort or reply to Exhibit 1C by Exhibit 1A whether the award of N10,000.00 damages to the respondent was not too large.

2.4 If, as strongly contended, Exhibit 1A is a publication against the respondent and his wife as husband and wife whether it was right for him alone to sue on it.

2.5 Whether taking the evidence of the parties as a whole, the learned trial Judge was right in finding in one breath that the cross-appellant had a right to reply to Exhibit 1C and in another breath holding that he should have sued the respondent in respect of Exhibit 1C instead of writing and publishing Exhibit 1A as a rejoinder to the said Exhibit 1C.

On issue one it was urged on behalf of the cross-appellant that the learned trial Judge should have awarded him damages on the second leg of his claim. On issue 2 it was reiterated that the assault on the good name of the cross-appellant, by the husband and wife, having regard to Exhibits 6 and 6A showed the couple as liars and blackmailers.

As to issue 3 on justification it is a total defence to a defendant’s claim. Having found that the cross-appellant was entitled to react the only question was whether he went outside the bounds of retort. There was therefore no basis for the award of N10,000 damages to the appellant cross-respondent, and that the cross appeal should be allowed.

In the Respondent’s brief to the Cross Appeal the following issues were set down for determination:

1. Whether the court is bound to grant an injunction once it has found a libel proved?
2. Was there evidence on which the lower court could have found the plaintiff’s claim proved?
3. If the question in 2 is positive, was the judge’s rejection of the defences supported by the law, pleadings, and the evidence?
4. Is there sufficient ground to impugn the exercise of the judicial discretion in the award of only N10,000.00 (Ten thousand Naira) in the circumstances of this case?
5. Was the plaintiff’s action properly constituted without the wife?
6. Whether the trial court properly evaluated the evidence and adequately applied the law to the facts pleaded and proved?

As to issue one it was submitted that as an injunction is an equitable remedy, it must be properly claimed and proved. Here paragraph 10(b) of the counter-claim was not proved and the learned trial Judge was right to refuse the grant of the injunction sought, the more so as there was no apprehension of further publication of the libel. Pryce Ltd v. Pioneer Press Ltd. (1923) 42 T.L.R. 29.

On issue 2, it was submitted that in order to found a successful action in libel the following must be pleaded and proved. Egri v. Upori (1973) 5 SC 299, 309.

1. Identity and sufficient particulars of the document containing the alleged libel.
2. Verbatim quotation of the libelous words. Okafor v. Ikeanyi & Ors. (1979) 3 & 4 SC 99, 100 – 104; DDG. Pharmaceutical Ltd. v. Times Newspaper Ltd. (1955) 1 G.B. 564.
3. Publication and circulation of the alleged libel: Gately on Libel & Slander 7th Ed. Para. 3, 221; Powel v. Golsten (1916) 2 KB 609;
4. That the defamatory words were published of and concerning the plaintiff.

It was then submitted that grounds 2 and 3 of the cross appeal were misconceived. As the plaintiff was neither the author nor publisher of the alleged libel, a right of reply cannot be exercised against him.

As to the defences of justification and fair comment, the learned trial Judge was right to reject them. On the authority of Gately on libel paragraphs 851 and 852, husband and wife are separate individuals and can sue severally or jointly under the law of defamation. It was therefore, wrong to refer to both as a class. Finally it was urged upon the court that the appeal be dismissed.

I have given a most careful consideration to the entire proceedings in the court below, the evidence in the lower court no well no the findings of the learned trial Judge. I have also examined very closely, the grounds of appeal and cross appeal and the briefs of the parties. The most striking aspect of this case is how far can a libel committed guardedly, vicariously or by acquiescence, succeed, more especially if both husband and wife are allegedly connected with the libel. There is also the question of Section 12 of the Married Women’s Law Cap. 98 Laws of Bendel State, which was not specifically pleaded by the defendant to the counter claim. Sight should not be lost of the fact that the wife who procured the libelous information to the Editor of the Sunday Sun who published it as a news item Exhibit C, was neither sued nor called as a witness by either party.

The husband was sued. Neither the said Editor nor the Sunday Sun were sued as defendants in the libel action. Therefore the question of liability for libel must first be examined.

What then is the law in this regard. Every man has a right to claim that his reputation shall not be disparaged by defamatory statements made about him to a third person without lawful justification, or excuse. There should be no doubt about the identity of the person defamed. Knupffer v. London Express Newspaper Ltd. (1944) A.C. 116; (1944) 1 All E.R. 495, 496. It is not necessary that all the world should know the person libeled. It is sufficient if those who know the plaintiff can make out that he is the person meant. Hulton(E) & Co. v. Jones (1910) A.C. 20, at 26 per Lord Shaw of Dunformlino.

Action in libel or slander are to vindicate the plaintiff’s reputation and to obtain reparations for defamatory statements made against him Cassel & Co. Ltd. v. Broomo (1922) A.C. 1027, 1071; (1972) 1 All E.R. 801, 824. Yet, if damages accrue from the publication, if the facts are true, the law gives no remedy.

Damages have to be proved in slander but are presumed in libel actions, Hobbs v. Tinling (1929) 1 K.B. 1, 17 per Sankey L.J.

What then is Defamatory Statement? The meaning of defamatory statement in essence is its tendency to injure the reputation of another person.

Lewis v. Daily Telegraph Ltd. (1963) 2 ALL E.R. 151, 154, (1964) A.C. 234, 265 per Devlin L.J. Generally speaking, a statement is defamatory if it tends to lower the person defamed in the estimation of right thinking members of Society generally Capital Countries Bank Ltd v. George Henry & Sons (1882) 7 App. Cas. 741, 745, or it exposes him to public hatred, contempt or ridicule. Byrne v. Deano (1937) 1 K.B. 818, or if it causes him to be shunned and avoided Hough v. London Express Newspaper Ltd. (1940) 2 K.B. 507, 515.

A person’s reputation is not limited to his character and standing, but extends to his trade, business, or profession, and words will be defamatory if they impute lack of qualification, knowledge, skill, capacity, judgment, efficiency in the conduct of his trade, business or profession. Morgan v. Coldham Press Ltd. (1971) 2 ALL E.R. 1156, 1168, 1169.

The test of a defamatory statement is the meaning the words will convey to the ordinary man, whether he thinks it is defamatory or not. Morgans Case opt. cit; Lewis v. Daily Telegraph, supra.

It is for a Judge sitting alone to decide whether the words complained of are defamatory or not or are reasonably capable of bearing, and did bear a defamatory meaning, Rubber Improvement Ltd. v. Daily Telegraph Ltd. (1964) A.C. 234; Sketch Publishing Co. Ltd. v. Ajagbemokeferi (1989) 1 NWLR (Pt.100) 678, 695.

If the verdict of the Judge is perverse, it is for the Court of Appeal to set it aside. Lockhart v. Harrison (1928) 139 L.T. 621; Dumbo v. Idugboe (1983) 5 SC 14, 20, 21, per Idigbe JSC.

Publication. No action for libel will lie unless there has been publication. R. v. Burdott (1920) 4 B2 ALL 95; Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285, 297, 298. The defamatory statement must be published of and concerning the plaintiff and the action in court must be on the statement or the precise words in respect of which the action is brought. Okafor v. Ikeanyi (1979) 384 SC.99.

In a civil action for libel, the plaintiff must allege and prove that there is a publication to a third person, be the person a stranger or to the plaintiff’s wife or husband, Praid v. Graham (1889) 24 QBD 53 C.A.; or to the plaintiff’s or defendant’s employers, or indeed to any person other than the plaintiff or the defendant’s wife or husband since at common law husband and wife are one, Wonnbak v. Morgan (1888) 20 QBD 635.

Publication consists in making known the defamatory statement after it had been reduced to some permanent form to a third person. Pullman v. Walter Hill & Co. Ltd. (1891) 1 QB 524, 529. To deliver a defamatory matter or statement to another is not to publish it to him if he does not become aware of the defamatory words. Cluthorback v. Chaffors (1816) 1 Stank 471. If a writer of a letter locks it up in his own desk, and a thief comes and breaks it open and takes away the letter and makes it contents known, that would not be publication by the writer. Pullman opt c.t.

Each communication of a libel is a separate actionable publication. Duke of Brumswick v. Harmer (1849) 14 QB 185.

It is now appropriate to consider the issue of publication of the libel in the defendant’s counter-claim. The plaintiff appealed against the judgment of the learned trial Judge in favour of the defendant for his counter claim as noted herein. The exact words which the defendant complained of as noted herein are in paragraph 8 of his statement of defence and counter-claim and is linked with the story published on page one of the Sunday Sun of 17th July, 1983 captioned “Canon in Sex Scandal.” The Editor DW2 testified that his source were the letters delivered to him by Mrs. Ufua the wife of the plaintiff/defendant to the counter-claim now appellant. They are copies of Exhibit 2 a letter dated 16th November, 1981 written by the plaintiff to the defendant from U.K. which ended thus:

“How embarrassing will it be, I can imagine, when in the national dailies it is captioned Rev. Cannon “Chairman” of the T.S.C. in Adultery Tussle with the wife of a Teacher On Inservice Course Abroad,”

and Exhibits 5, 5A a reply by the respondent. The appellant admitted the authorship of Exhibit 2 at the trial; his defence was that he neither delivered the letter to the Editor nor authorized his wife or anyone else to do so. There is no dispute that the statement published to the Editor, and to the world at large in the Sunday Sun was a libel on the defendant/respondent. Lewis v. Daily Telegraph Ltd. supra, and the learned trial judge was right to so find.

Although writing is not in itself publication, but the writer ought to do all he can to prevent it being made known to a third person. Pullman v. Walter Hill & Co. Ltd. (1891) 1 QB 524, 527. Therefore if a libel is published which is proved to be in the defendant’s handwriting, as in this case it is a question of fact – whether the defendant caused it to be published, even if no direction to publish it is proved. Publication is proved if the defendant’s manuscript is found in the house of the Editor of the Newspaper. Tarplay v. Blabey (1836) 2 Bing N.C. 437. But his letter was produced by the Editor, and circumstantial evidence pointed to the only inference that his wife, even though equally guilty of libel was his courier. Lewis v. Daily Telegraph Ltd. supra.

The defendant’s wife or husband may be the defendant’s agent in publishing a libel to a third person so as to make the defendant a publisher of it. Trumbull v. Givvonn (1816) (An American Case, 3 City Hall Recorder 87 cited from Odgors Libel and Slander 6th Edition 133); Wonnhak v. Morgan (1888) 20 QBD 635, 637, where the delivery of certain pamphlets by the defendant to his wife was held not to be a publication to her, but her delivery of the pamphlets to third person was held to be a publication by the defendant, and in delivering them the wife acted as the defendant’s agent.

Liability for Publication. The learned trial judge was right to draw the inference that the wife of the appellant was his agent as publisher of the libel.

Every person who without lawful excuse publishes or causes it to be published or participates in the publication of a libel is liable as a publisher. Thus the law presumes malice in the publisher of a defamatory statement unless he rebuts that presumption by the defence of privilege or justification. Adam v. Ward (1917) AC 318; Adeniji v. Fetuga (1990) 5 NWLR (Pt. 150) 375 per Akanbi JCA as he then was.

Liability for libel does not depend on the intention of the defamer but on the fact of defamation.

Cassidy v. Daily Mirror Newspaper Ltd. (1929) 2 K.B. 331.

The defences to libel are absolute, and qualified privilege, justification or truth. Truth as a defence means that the alleged libel is true in substance and fact, that is, the offending words are substantially true. Associated Leisure Ltd. v. Associated Newspapers. (1970) 2 QB. 450, 456, (1970) 2 All E.R. 754, 757; Moore v. News of the World Ltd. (1972) 1 Q.B. 441, (1972) 1 All .E.R. 95.

If a defendant pleads justification, he must prove that the defamatory statements of facts are true, and that the defamatory inferences are also true. Broadway Approvals Ltd. v. Oldham Press Ltd. (1965) 2 All E.R. 523, 535.

The Defence of Justification confesses and avoids.

The law presumes that defamatory statements are false and it is for the defendant to satisfy the Court that the statement is justified, i.e. true in substance and in fact. Din v. African Newspapers (1990) 3 NWLR (Pt. 139) 392, 409.

Absolute privilege is a defence in protection of public interest.

It is available to Judges, advocates, and witness in the course of legal proceedings. Oawkins v. Lord Pamlet (1869) Lr 5 QB 94, 116. It also covers administration of justice, proceedings in parliament, or contain aspects of Local Government and advise to the sovereign or State.

Qualified Privilege is normally referred to as the rolled up plea, that the alleged defamatory words are true; and the comments thereon are fair on a matter of public interest. African Newspapers v. Coker (1975) 5 SC 207; Dumbo v. Idugboo (1982) 2 SC 14; Silkin v. Boavor Brook Newspapers (1958) 1 WLR 743, 747.

In a libel action; the averment of “falsely and maliciously published” in a statement of claim is an allegation of legal malice which means publication of the libel without lawful excuse. Clark v. Molynoux (1877) 3 QBD 237, 247.

The defences of both fair comment and qualified privilege are defeated by proof of legal malice. This is distinguishable from express or actual malice which is ill will or spite towards the plaintiff or any indirect or improper motive in the defendant’s mind at the time of publication. Bromago v. Prosser (1825) 4 B & C 247.

In both cases proof that the defendant’s sole or dominant motive in publishing the words complained of was improper will establish malice. Horrocks v. LowB (1975) A.C. 135, 139 – 151, (1974) 1 All E.R. 662, 669, 670. In the defence of qualified privilege the defendant’s believe that the statement is true is thereby defeated; and the same consideration applies to the defence of fair comment where the defendant’s case is that the facts are true and that the opinion or comment expressed thereon is honestly hold, or objectively fair. Chief the Hon. Rotimi Williams & 2 Ors v. The West African Pilot (1961) All NLR 866, 880. Any person is entitled to say, by way of comment on a matter of public interest, what he honestly thinks, however exaggerated, obstinate or prejudiced that may be, such comment is fair and sustainable as a defence to a libel action, unless it is so strong that no fair minded person could have made it honestly. Silkin v. Boavorbrook Newspaper Ltd. & Anor (1958) 1 WLR 743, 747.

As to the defence and issues of qualified privilege and fair comment put up in the plaintiff/appellant’s reply to the counter-claim, Exhibit 3, for the content of Exhibit 2, is an admission that he later found that the facts narrated in Exhibit 2 were false. That certainly knocks the bottom off those two defences. Chief Rotimi Williams & 2 Ors. v. The West African Pilot supra.

It was urged, but not pleaded, that, Section 12 of the Married Women’s Property Law, Cap. 98 Laws of Bendel State was a complete defence for the appellant. It provides:-

“12. Subject to the provisions of this law the husband of a married woman shall not, by reason only of his being her husband be liable-

(a) in respect of any tort committed by her whether before or after the marriage or in respect of any contract entered into or debt or obligation incurred by her before the marriage; or

(b) to be sued or made a party to any legal proceeding brought in respect of any such tort, contract, debt or obligation.”

In reply the defendant respondent argued in effect that the appellant jointly and severally published the libel of and concerning him. The appellant husband and wife had shown “great solidarity” in the libel of the defendant by Exhibit 2 in revenge of the dismissal of the wife caused by the defendant. This I interpret to mean that the couple jointly and severally published Exhibit 2. This augment was buttressed by Exhibit 6, 6A, letters of the wife to the Secretary Governor’s Office but in the handwriting of the husband appellant as admitted under cross-examination which contain libelous statements against the defendant respondent.

Applicable to this case is the maxim quid facit per alium, fact per se, he whoever does a thing through another does the thing himself. Section 12 aforesaid does not avail the appellant, stricto sensu as his wife is not a party to the action, and as both the appellant and his wife were each publishers of the libel.

As to the appeal on damages of N20,000.00 as excessive, the appellant has submitted that since the learned trial Judge found that the defendant counter claimant and successfully revenge by the publication of a libel against the plaintiff/appellant to the counter claim, no damages should have been awarded, and it was then submitted that the damages be set aside.

In reply the defendant counter claimant respondent submitted on the authority of His Highness Uyo I v. Felix Eguaro (1974) 5 SC 103, 108 that a great part of the exercise of the award of damages must be arbitrary, taking into account the evidence in the case, and the subject matter of the action. The award must be adequate to repair the injury to the damaged plaintiff’s reputation and character which had been unjustifiably invaded. It was then submitted that on the evidence, having regard to the status of the defendant, as a Canon of the Anglican Communion, the violence of the offending language, imputing adultery on a clergyman of exemplary character, who was a Principal of a Secondary Commission from 1980 – 1983 when he retired without blemish, the damages were not too excessive. Zik’s Press Ltd. v. Alvan Ikoku 13 WACA 188. It was then urged upon the Court that the damages awarded should not be interfered with. It was finally submitted that the appellant led no evidence in respect of his statement of defence and reply to the counter-claim which should result in judgment for the defendant on the counter claim. Nwabuoku v. Ottih (1961) 1 All NLR (Pt. 3) 487, 488; Akibu v. Oployo (1974) 1 All NLR (PT. 2) 341. The defences in the reply have been dealt with above.

What then is the law on damages in defamation action. It has been said that in an action in libel, the assessment of damages does not depend on any strict legal rule. Bray v. Ford (1896) AC 50. And that accounts for the statement that in libel damages are compensatory and at large, and cover injury to plaintiff’s reputation, and hurt to his feelings. Cassel & Co. Ltd. v. Broomo (1972) 1 All E.R. 801, 825. That is to say, the award is not limited to any pecuniary loss that can be specifically proved. The law presumes that some damage must flow in the ordinary course of events from the libel of a person, and such damage is known as general damage. Ratchffo v. Evans (1892) 2 QB 524, 528 – 530 per Bowon LJ. Thus a plaintiff in a libel action is not required to prove his reputation or that he has suffered any actual loss or damage. On prove of the libel, he is entitled, at least, to nominal damages.

The object of damages is to compensate the plaintiff, and not, except in exceptional cases to punish the defendant. Rooks v. Bornard (1964) AC 1129, 1121, (1964) 1 All ER 367, 407. But the plaintiff is entitled to plead and prove an additional special damage such as injury to plaintiff’s health occasioned by the libel. Whoolor v. Somorfield (1966) 2 All ER 305, or loss of employment, London Griffiths v. Smith, (1950) 2 All ER 662, 678. But claim of special damages are limited by the concept of remoteness of damage. Knight v. Gibbs (1834) 3 NW MKB 467, Speake v. Hughes (1904) 1 KB 138 where the loss was held to be too remote. The figure of justice carries a pair of scales, not a cornucopia. Innes v. Visse (1936) W.H.D. 44. A soiled reputation seems assured of more liberal assuagement than a compound fracture. Groom v. Crocker (1939) 1 K.B. 194 per Markin on L.J. at 231.

Thus the amount of damages is within the province or discretion of a trial Judge, taking into consideration the conduct of the plaintiff, for instance that his own imprudent conduct gave rise to grave suspicion, Hawkins v. Express Diary (1940) 163 L.T. 147, his position and standing in society, the nature of the libel, the mode and extent of publication, Simpson v. Robinson (1848) 12 Q.B. 513, the absence or refusal of any retraction or apology, but that should not give rise to aggravation of damages, Morgan v. Oldham Press (1971) 1 WLR 1239 (H.L.) per Lord Reid at 1247, and the whole conduct of the defendant from the time when the libel was published, such as repetition of the libel, Fielding v. Variety Inc. (1967) 2 All ER 497, down to the moment of judgment; so also is insulting, offensive, or ill founded cross-examination of the plaintiff at the trial, Watt v. Watt (1905) A.C. 115 H.L. and the evidence led in aggravation or mitigation of damages if any. The Court should also take into account the success of the defendant in part, if any. A verdict for the plaintiff where no damages are assessed or awarded is void. Clement v. Lewis (1822) 3 Brod and Bring 297; See Gatley on libel and Slander on damages 7th Edition Cap. 31 Section 2; Ejubulor v. Osha (1990) 5 NWLR (Pt. 148) 1, 16.

In the case of Zik’s Press Ltd v. Alvan Ikoku 3 WACA 118, 189, the principles to guide an appellate court on an appeal on quantum of damages awarded by a trial Judge were stated as follows. An appellate Court should be very reluctant to exercise its power to re-assess the amount of damages awarded by the trial court, unless the Judge proceeded upon a wrong principle of law or that his award was clearly an erroneous estimate of the damage to which the plaintiff was entitled since the amount was manifestly too large or too small. Owen v. Sykes (1936) 1 KB 192. The mere fact that a court in an appeal is re-hearing the case and would have assessed the damages differently does not generally justify the court in amending the Judges award. As no erroneous estimate of the damages was shown, the appeal was dismissed. In the case in hand even though by operation of law and by the finding of the learned trial Judge the appellant was deemed the publisher of the libel to the Editor of the Newspaper, he had already written a letter of apology to the defendant which was tendered in court. Also his evidence during the trial was apologetic. He said the defendant was the head of his family whom he respected.

Admittedly, the defendant counter claimant was proved to be a clergy man of repute who held a high post of Chairman of a parastatal, there was no proof that the learned trial Judge applied wrong principle in the award of N20,000 damages. Nor was there any suggestion as to what lower damages should have been awarded.

As to issue one of the cross appeal, there was no basis for an order of injunction since the libel was not repeated and as cross respondent’s Exhibit 3 was a letter of apology. As to the defences of justification and qualified privilege, the learned trial Judge rightly found out that none of the libellous facts was true of the cross respondent, even though some of them may be true of the wife. Therefore, the two defences which were, not founded on true or substantially true facts must fail.

As to the appeal on damages of N10,000 against the cross respondent, the cross appellant adduced no evidence or argument that wrong principles were applied by the trial court such that the damages were manifestly too high or should be a normal amount.

The argument of the falling rate of exchange of the naira was not an issue at the trial as it was neither pleaded nor supported with evidence. All the issues were therefore resolved against the cross appellant. His appeal fails and is dismissed in toto.

As the appeal and the cross appeal have failed, each party shall bear his own cost.

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Other Citations: (1993)LCN/0158(CA)