African International Bank Limited & Ors V. Femi Asaolu (2005)
LawGlobal-Hub Lead Judgment Report
ISA AYO SALAMI, J.C.A.
The plaintiff caused to be indorsed on the writ of summons, dated 27th February, 1989, and filed on 1st March, 1989, as follows:
“The plaintiffs claims jointly and severally against the defendants the sum of one million, five hundred thousand Naira (N1,500,000.00) as damages for libel contained in information circular NO.704 dated 21/12/89 signed by the first and second defendants as servants or agents of the 1st defendant and circulated by the defendants among all the managers in the first defendant’s branches/area offices in Nigeria”.
The plaintiff’s amended statement of claim that eventually went to trial are at pages 60, 61, 62 and 63, which are mainly illegible. In that amended statement of claim,the claim was raised to N50,000,000.00. The learned trial Judge, after taking the evidence and addresses of counsel, in a reserved and considered judgment, gave judgment in favour of the plaintiff in these terms –
“Keeping Exh. D in circulation for II years against the order of the Managing Director is evidence of aggravated misconduct leading to aggravated damages. Entire conduct of the defendants from the time of publication of libel to the moment of the verdict.
For over 11 years the defendants remained unrepentant. They still persist and still maintain without sufficient ground that plaintiff was fraudulent. See the case of Ejabulor vs. Osha (1990) 5 NWLR (Pt.148) at p1 ratio 20.
The Court takes all these factors into consideration and award five (5) million Naira damages together with an injunction restraining the defendants from further publishing such information. Defendants are hereby ordered to withdraw exh.D from circulation. I shall hear counsel on costs.”
The defendants are dissatisfied with the outcome of the trial and being aggrieved have appealed to this court on five original grounds of appeal which were substituted by 7 grounds of appeal filed along with an amended notice of appeal on 11th November, 2003.
The plaintiff was unsatisfied with the quantum of damages made in his favour and has cross-appealed with leave of the court granted on 20th November, 2001. The notice of appeal was filed on 10th December, 2001. Briefs of argument have been filed and exchanged in respect of both appeals according to the practice and procedure of this court.
On 8th March, 2005, when this appeal was listed for hearing,this court observed as follows-
“It is observed that BCC1 which libelled the respondent has ceased to exist in Nigeria. Can a company incorporated in Nigeria to take over its operations be expected to inherit the liability of the former company?”
Learned Counsel who represented both parties on that day agreed to an adjournment to enable them address the court at a later date. Consequently, the hearing of the appeal was adjourned to 15th April, 2005. The matter was not taken on that day apparently because of the court’s inability to assemble the same panel. The appeal was, however, heard on 26th April, 2005.
On that day, learned Counsel for the appellants graciously directed the court to an attachment to an affidavit sworn to on the 22nd April, 2005. The attachment referred to was a certificate of incorporation which satisfactorily explained that there was no incorporation of a new company. Rather, the company formerly operating as Bank of Credit and Commerce International Nig. Ltd. merely changed its name to African International Bank Limited. Our fear on whether the defamatory publication which had been published and been in circulation for several years before the formation of the first appellant survived Bank of Credit and Commerce International. If there had been a new company, clearly the defamation would not have survived Bank of Credit and Commerce; since the former bank merely changed its name any action or liability against it before the change of names can be founded upon notwithstanding the change of name.
Thereafter, the hearing of the appeal got underway. Learned Counsel for appellants referred to an amended notice of appeal filed on 11/11/03 with leave of the court granting the appellant on 6th November, 2003,7 days within which to file the amended notice of appeal which was apparently complied with.
Learned Counsel for appellants then adopted and relied on the appellant’s brief dated 3rd May, 2002, prepared by Akoni and filed out of time on the same day but regularized on 6th November, 2002. The learned Counsel for appellants conceded that the brief was settled before the amended notice of appeal was filed. In addition, he equally adopted the cross-respondents’ brief dated 12th March, 2004.
On the other hand, learned Counsel for respondent adopted and relied on the notice of cross-appeal filed on 9th December, 2001 pursuance of the order of this court granted on 29th November, 2001. Learned Counsel then adopted and relied on the respondent’s as well as cross-appellant’s briefs dated 20/06/02.
The appellants who in their amended notice of appeal filed 7 grounds of appeal formulated the following 4 issues –
“(i) Whether the judgment of the court below was valid having regard to the failure of the learned trial Judge to give any consideration whatsoever to the case of appellant.
(ii) Whether the lower court was correct in holding that the defence of justification raised by the appellants did not succeed.
(iii) Whether the lower court was correct in holding that defence of qualified privilege raised by the appellants did not succeed.
(iv) Whether considering the admissible evidence available to the court, the ward of N5,000,000.00 (Five million Naira) damages to the respondent were justifiable.”
None of these issues is related to a ground of appeal.
The respondent, in his respondent’s brief framed the following 3 issues as calling for determination in the appeal.
“1. Whether the respondent has proved his claim for libel.
- Whether the defences of justification and qualified privilege avail the appellant.
- Whether the trial Court gave adequate consideration to the case of the appellant.”
In the cross-appeal, the sole issue formulated in the cross-appellant’s brief is stated immediately hereunder –
“Whether the award of N5,000,000.00 (five million Naira) being aggravated damages for libel to the plaintiff/cross-appellant in the peculiar or exceptional circumstances of this case not ridiculously low or an inadequate quantum of damages.”
The cross-respondent identified the following as the only issue calling for determination in the cross-appeal –
“Whether considering the admissible evidence available to the Court below the award of five million Naira as – damages in favour of the cross-appellant is not excessive and punitive in the circumstances of the case.”
In the course of argument viva voce learned Counsel for appellants sought to relate the four issues, which were not related to any of the seven grounds of appeal. Learned Counsel for appellants stated that issue 1 derived from ground 7; issue 2 from ground 3; issue 3 from ground 4, while issue 4 related to ground 6, It thus, follows impliedly that grounds 1, 2 and 5 which are not related to any of the formulations are deemed abandoned. The three grounds of appeal having been abandoned are struck out.
On the other hand, it seems to me that the respondent’s formulation of Issue is not directed at the appellants’ issues, The first issue of the respondent is directed at the discharge of onus of proof. But the appellant has no grouse in his formulation of issue dealing with discharge of the burden of proof. Rather,the appellant is burdened or worried with the manner the learned trial Judge wrote his judgment.
In the appellants’ brief, it was contended in respect of their first issue that the judgment of the learned trial Judge is invalid. It was then argued that for a judgment in a civil mailer to be valid the evidence adduced by either side must be appraise and evaluated before coming to a decision.
Learned Counsel relied on the cases of Mogaji vs. Odofin (1970) 4 SC.91 and Kariba vs. Grend (1992) 3 NWLR (Pt.230) 426. Learned Counsel for appellant submitted that the judgment is devoid of analysis, evaluation or appraisal of the evidence put before the court. Learned Counsel, Dr. Layonu contended that the judgment was indeed a plagiarism of the final addresses made by counsel to the parties with more being taken from the address of the counsel for the respondent. Learned Counsel for appellants then proceeded to demonstrate this to the court.
It is clear from the portion of the judgment to which we are referred that the grouse of the appellants in their brief is that learned trial Judge employed the same words as the learned Counsel for both parties used, while stating their respective submissions in the judgment. It is for this reason that the learned Counsel for appellants wants the judgment set aside. Learned Counsel would probably have been on stronger wicket if he had contended that his written submissions were not considered. But that is not their case. It is their case that the learned trial Judge having used the same words employed by learned Counsel in their respective written addresses in their summing up the judgment should be set aside on account that it is invalid. This is a novel submission the kind of which I have never heard through out my limited career. There will always be a first. I am, therefore, not surprised learned Counsel for respondent ignored the issue and failed or refused to answer that appellants’ issue.
I have equally examined the argument of counsel on the similarity of issue framed in the respondent’s written address and the one set out in the judgment presently on appeal. I agree that the two formulations are identical, but the learned Counsel for appellants have not been able to lay his hands on an authority debarring the learned trial Judge from doing what he did. Although the learned trial Judge did not expressly adopt the respondent’s formulation of issue which is within his right to do, he has by repeating the formulations of the respondent’s issues impliedly adopted the issues identified by the plaintiff, the respondent herein in his written address. In my respectful opinion, the adoption or use of the respondent’s formulation of issues simpliciter by the learned trial Judge cannot, without more, form the basis for setting aside the decision of the Court, unless there is evidence that it resulted in the miscarriage of justice. The issue of miscarriage of justice will be addressed later in this judgment.
There is also no substance in the submission of the learned Counsel for appellants that the learned trial Judge without giving any consideration to their defence by examining the evidence adduced concluded at page 111 of the record that the defence of justification was not established and the defence of qualified privilege was unsuccessful. Although, learned trial Judge, after making the observations on the defences of qualified privilege and justification, formulated the five issues calling for determination, including the issues of qualified privilege and justification. Thereafter, he painstakingly proceeded to examine and concluded on the five issues seriatim. In this connection learned trial Judge reasoned at pages 113-114 of the record thus –
“The defence of justification and qualified privilege are such potent defence in a defamatory suit that they are not flippantly set up for the make of merely doing so. See Obasuyi vs. Ezeigbu (1991) 3 NWLR (Pt.181) p.585 at 588 ratios 11 and 12. Material statement in the libel, i.e plaintiff involvement in fraudulent activities has not proved material statement in the libel.
Plaintiff was only used as a scape goat. They wanted to close rank with Concord Press and not because of fraud.
Where crime is alleged in a libel case and a defence of justification is raised the crime must be proved beyond reasonable doubt and not on suspicion.
The truth of the fraudulent allegation made against the plaintiff was not proved in any material particular and beyond reasonable doubt any Panel of Enquiry, the police or Honourable Court.
In this case, police arrested 8 people who were released. Defendant did nothing. No prosecution of the plaintiff, Plaintiff was not involved.
Circular 704 exh. D was untrue document falsely made to destroy and injure professional career of the plaintiff.
Crime has been alleged in Exh. D which has never been proved. This destroyed defence of justification. See Dumbo vs. Idugboe (1983) I SCNLR 29 on Art 104 PR 29 of Nigerian Law of Libel and Press.
The defendant must prove that the defamatory imputation was true. This, the defendant has failed to do. The libel is not true in this case. Qualified Privilege.
The defence of qualified privilege is not established to defer a person and violate his integrity. See Dina VS. N.N.N. (1986) 2 NWLR (Pt.22) at 353.
The facts available to the defendants which warranted Exh. D were not used bona fide. See Ajala VS. Aro PR 45 Art. 166. To sustain defence of qualified privilege there must be averment that the alleged libelous statement were made on a matter of public interest.
There is no averment in the pleadings of the defendant to the effect that the content of Exh. D as they affected the plaintiff were made bona fide on a matter of public interest.
Falsehood destroys qualified privilege. See Obayiwuwana vs. Mohammed Art. 168 P.PR 46 a defence of qualified is not available to a defendant, who published a false allegation of the commission of a criminal, in which an innocent person is said to have been arrested in connection with a suspected fraud involving N4 million.
Managing Director says this man is innocent, withdraw Exh.D. Exh. D was a fraudulent allegation against innocent plaintiff. The defence of qualified privilege does not avail the defendant.”
It is clear from the passage culled from the judgment of the learned trial judge that the compliant of the appellants is not only misplaced, it stems out of misconception of the principle or style of writing judgment.
Judgment writing is characterised as work of art and every judge or justice, like any other artist, has his own style of writing. A trial Judge is therefore, at liberty to adopt his own style of writing judgment in so far as it is shown or manifested in his judgment that his views are true reflection of the evaluation of evidence adduced by both sides of the dispute. The principle set out in Mogaji vs. Odofin (1978) 4 SC.91, 94; Bello vs. Ewaka (1981) 1 SC.101 and Karibo vs. Grend (1992) 3 NWLR (Pt.230) 426 have been explained by the Supreme Court in the case of Amokomowo vs. Andu (1985) 1 NWLR (Pt.3)530 at 639 where Uwais, JSC (as he then was) stated thus –
“In this regard, the present case appears to differ from Mogaji’s case for in that case this court said:-
“it is manifest that the trial Judge in the case in hand has also not put the defendant’s case on that imaginary scale and found it wanting in weight.”
Indeed, in the present case, it is after due consideration of the cases for the parties, as supported by the evidence called, that the findings which I summarised earlier in this judgment, were made by the learned trial Judge. In my opinion, therefore, the case is distinguishable from Mogaji’s case not by the style adopted by the trial Judge in writing his judgment, as found by the Court of Appeal, but because he had, after departing from the principle laid down in Mogaii’s case eventually followed the decision by properly placing the cases for the parties on the imaginary scale and weighing them. In so doing, I do not think that any miscarriage of justice had been occasioned.”(underlining mine)
The principles or rules in Mogaji’s case respectfully requiring placing of evidence on the imaginary scale are not fixed. It is not inflexible. The Supreme Court so expatiated in the case of Amokomowo (supra) that if it is manifest that the learned trial judge after all considers the evidence of both parties, then the judgment would be sustained and not disturbed. In the instant case, the learned trial judge after making hastily the two findings at page 111 on the defence of justification as well as qualified privilege revisited the two issues at pages 113 and 114 of the record where the cases of the parties were placed on the imaginary scale as set out above. In so doing, I am respectfully of the view that no miscarriage of justice had been occasioned. In any case, learned Counsel for the appellants was invited to show us a case of miscarriage of justice at the oral hearing of the appeal, he was unable to lay his finger on any instance of miscarriage of justice.
In the result, the answer to appellant’s issue (i) is positive and ground 7 of the grounds of appeal from which it derives fails and is dismissed.
On appellants’ second issue,it was submitted in the appellants’ brief that the word complained about and which are set out in paragraph 4 of the third amended statement of claim are in their very ordinary words true and correct. It was further submitted that upon a reading of the entire document in which the words are contained,the imputation drawn by the learned trial Judge is unwarranted and that the trial Judge misdirected himself and fell into serious error when he construed the words to be defamatory. He was led into greater error, it was further argued, when he held that the words were not true in their natural and ordinary meaning by the position he took. Learned Counsel after reviewing the facts then submitted that words in libel cases are to be given their natural meaning and the appellants were justified in publishing the said words which averred that respondent’s employment was terminated as a result of the fraud at Agbowa.
Learned Counsel for the respondent, in his brief of argument, summarised the submissions on appellants’ behest and contended that the submission of the learned Counsel for appellants that the circular stated that the respondent’s employment was terminated as a result of fraud at Ikosi. This was true in all respect but untenable. Learned Counsel for respondent referred to the terms of exhibit D and contended that respondent’s name appeared on the list attached as manager of Agbowa-Ikosi and the allegation made against him was “fraudulent at Agbowa-Ikosi 28/9/87” and disciplinary action stated on the document and was imposed on him on account of the fraudulent activities at “Agbowa-Ikosi” as “manager” of that “branch” was termination. Learned Counsel posited that this view is supported by the opinions of the makers of exhibit F, F11 and J1.
Learned Counsel for the respondent contended that the substance of the defence of justification is clearly explained by the Supreme Court in the case of A.C.B. vs. Apugo (2001) 7 NWLR (Pt.42) 38, 52. Learned Counsel contended that not only must the appellants prove that the defamatory imputation is true but justify the precise imputation complained of. See A.C.B. vs. Apugo (supra) 52 Dumbo vs. Idugboe (1983) 1 SCNLR 29, 51. Thereafter, learned Counsel for respondent meticulously analysed the evidence particularly the documentary evidence adduced before the trial court.
It is worthy of note that the appellants conceded to the following in paragraph 4.2.4 of their brief of argument –
“There is no dispute on the evidence that there was a fraud at the Agbowa-Ikosi branch of the Ist appellant, where the respondent was the manager at the material time. There is also no dispute that the respondent was suspended from work while his activities were being investigated. Afterwards, he was found not to have. been involved in the fraud but to have been negligent. He was asked to return to work but warned against future negligence. His appointment was subsequently terminated. These were the facts of the case which are not in dispute. It is also submitted that the words complained about do not say or mean anything different.
This is the truth of the matter and nothing more.”
(underling mine)
It is respectfully my view that this is a convenient stage to read exhibit D, which contains the words published of and concerning the respondent. It reads inter alia as follows –
“MANAGERS – Branches/Area Offices MALPRACTICES BY MEMBERS OF STAFF AND DISCIPLINARY MEASURES TAKEN
During the year 1988, a number of our members were disciplined for their involvement in acts considered unprofessional and in some cases fraudulent. In all the cases, thorough investigation were carried out and the level of involvement of each member associated with the case ascertained.
As a deterrent to others, we produce on the attached list, the names, cases, extent of involvement and the disciplinary measure taken by management in respect of each case.
However, the management may decide to mete out more serious penalties including prosecution for subsequent offences.”
(underlining mine)
The list referred to in Exhibit D contains 42 names and the respondent was listed as the 16th officer. It is indicated against the respondent’s name that he was manager at Agbowa-Ikosi and was listed for fraudulent activities at Agbowa-ikosi for which he was terminated on 30th September, 1988.
Contrary to the contention of the learned Counsel for the appellants nowhere is the respondent merely put down for negligence as in the cases of E. M. Ogunkoya (Mrs.) and C. G. Kpandie who were only cautioned. It is therefore not correct to contend that the respondent’s appointment was terminated as a result of the fraud at Agbowa-Ikosi branch. The learned trial Judge, therefore, did not misdirect himself and neither fell into error when he construed the words as being defamatory which construction thereby resulted in his concluding that the words were not true in their natural and ordinary meaning. The construction to be placed on the words published of and concerning the respondent in exhibit D is to the effect that he was involved in the fraud. The publication of the name of the respondent along with the names of persons being accused of acts which are criminal in nature raises issue of imputation of commission of crime to him. The picture thus, created is akin to publication of photograph of an innocent person in company of criminals, an act which is defamatory.
The attachment to exhibit D, BCCI (Nigeria) Ltd. information circular No.704 of 21/01/89 is a circular in which names of members of the staff of first appellant who had been involved in cases of different nature are set out.
The circular sets out the names of the staff, the nature of their involvement and the disciplinary measures meted out to them. In the case of the respondent, in the instant appeal, the case in which he was involved is stated as being “fraudulent activities at Agbowa-Ikosi branch.” The column for extent of involvement was left blank or uncompleted. Is it not reasonable in the light of the ominous omission to complete that column designed for “extent of involvement” to infer that the officer’s termination arose from his involvement in fraudulent activities. A reasonable reader giving the words their natural and ordinary meaning will inevitably come to the conclusion that the respondent’s appointment was terminated for his fraudulent activities. Indeed, that was the only reason given for his termination in exhibit D. The word negligence sought to be imported into it is respectfully an after thought.
Where the words of a document are clear it should be given its natural, ordinary and grammatical meaning. It is not permissible to import extraneous matter into it. In deciding whether words have tendency of carrying defamatory meaning the court will not be cajoled into accepting meanings which are products of strained or forced or unreasonable interpretation. See Jones vs. Shelton (1963) 1 WLR 1370 at 1376 per Lord Morris. The construction placed on the libellous publication complained of by learned counsel for appellants is, to my mind, utterly unreasonable.
Be that as it may, one is further strengthened in this view by the contents of exhibits F, F1, and J1 to which the court is referred by the learned Counsel for respondent in the respondent’s brief of argument. Exhibit F is a letter from Co-ordinator Concordia International Students Union, Loyola Campus Montreal Canada to the President of Concordia University Students Association (USA), Montreal Quebec H3G IM8 and reads inter alia as follows –
“The Dean of Student Affairs, by his letter of 16th March, 1989, informed me that the bank manager of Bank of Credit and Commerce International BCCI. …. Montreal, Mr. Amin-ud-Din recently intimated him with the termination of Mr. Asaolu’s appointment with BCCI Nigeria as a manager on 30/9/89 for fraudulent activities, vide BCCI Nigeria’s information circular No.704 dated 21/01/89. Copy of the circular rests with the senate.”
(Underlining mine)
The Institute of Chartered Secretaries and Administrators of National Office 322 Bay Street Toronto, Owan, Canada wrote to respondent a letter which was admitted and marked exhibit F. The portion for this determination is this –
“During our periodical performance routine enquires on our members worldwide for statistical up-date, BCCI Luxembourg reported on you as extracted below.
“Mr. Femi Asaolu, International staff No. 121002 was the manager of our Agbowa-Ikosi branch, Lagos Nigeria, till 30/9/89, when his appointment was terminated for fraudulent activities recorded in BCCI Nigeria Information Circular No.704, dated 21/01/89. Further details can be obtained from BCCI Nigeria At 442/44, Warehouse Road Apapa, Lagos”
(underlining mine)
Finally on this point, exhibit J1 equally placed the same construction on the contents of exhibit D, BCCI Nigeria Information Circular No.704 21/01/89 as construed by the makers of exhibits F and FI. Exhibit J1 written by KPMG Peat Marwick Ani Ogunde Consultants reads inter alia as follows-
“Dear Sir,
RE: MR. FEMI ASAOLU
Thank you for your letter introducing the above named banker to us for executive position in the financial institution.
Subject was interviewed on 15th February, 1989 for the post of Executive Assistant to the Managing Director of a Bank in Lagos.
Mr. Asaolu … met all significant requirements, but our detailed confidential information which we must obtain from his present/previous employer – Bank of Credit and Commerce Int. (Nig.) Ltd. – is very discouraging. His appointment was reportedly terminated for fraudulent activities on 30/9/89 as listed in the Banks information circular No.704 dated 21/01/89 which we obtained from the Bank.” (underlining mine)
I agree with the learned Counsel for respondent that it is trite that the defence of justification is a complete defence in a case of libel. Once the words published of and concerning the respondent are in essence the truth; the fact that they are defamatory of the person of whom they are made will not entitle such a person to damages. The learned counsel for respondent referred to the court the case of ACE vs Apugo (supra) where the gist of the defence of justification in defamatory action had been explained. It was held that it is a defence to a libelous or slanderous action to show that the defamatory imputation is true. The truth of the imputation is a defence to the action not because it invalidates malice but for the reason that the plaintiff/respondent has no right to a character free from imputation and if he has no right to such character, he will not be entitled to recover damages for it.
There is substance in the submission of the learned Counsel for respondent that the onus of proof was on the appellants who had raised a plea of justification. They must establish that the defamatory imputation is true and also justify the imputation complained of. The reason being that a plea of justification purports that the libelous publication is true in its allegation of fact as well as in any comments made on it. See the case of ACB vs. Apugo (supra) at page 52 and Dumbo vs. Idugboe (1983) 1 SCNLR 29, 51 and the case of Obasuji vs. Ezeigbu (1991) 3 NWLR (Pt.181) 585. J] Although, there is evidence before the learned trial judge that the two girls had been tampered with freshly nevertheless there was no evidence that the dastardly acts were committed by the respondent. In the absence of any evidence, directly or otherwise linking the respondent with the defilement of the girls the respondent cannot be held responsible.”
And in the case of Dumbo vs. Idugboe (1983) 1 SCNLR 29 at 51 Supreme Court per Obaseki, JSC, stated that –
“To make a good plea of the whole charge, the defendant must justify everything that the libel contains which is injurious to the plaintiff. A plea of justification means that the libel is true, not only in its allegation of fact, but also in any comment made thereon. The defendant therefore has the onus to prove not only that the facts are truly stated but also that any comment on them are correct.
See Peter vs. Bradlaugh (1884) 4 T.L.R. 467
Kerr vs. Force (1826) 3 Cranch CC 8 at p.24.
Truth (N.Z) Ltd. vs. Holloway (1960) 1 WLR 996 PC
Wernher Bert vs. Markham (1901) 18 TLR 143,763
John vs. Gittings 159 Cro Eliz 239.
Clarkson vs. Lawson (1829) Bing 266, 3 Moo & P
Cooper vs. Lawson (1931) 8 A & E 746.
Sutherland vs. Stopes (1925) AC at pp.62, 63, 75.
It is not necessary to prove the truth of every word in the libel. If the defendant proves that “the main charge, or gist of the libel is true, he need not justify the statements or comments which do not add to the sting of the charge” Sutherland vs. Stopes (supra).”
The appellant is to justify the precise imputation which, in the instant case, is “fraudulent activities at Agbowa-Ikosi on 28/9/87” which is in the nature of commission of crime. The proof required is not one on balance of probability but one beyond reasonable doubt. It is settled principle of practice and procedure that in civil cases, where imputation of commission of crime is made an issue the burden of proof is no longer one of strict proof but that of proof beyond reasonable doubt.
The appellants respectfully did not attempt to adduce evidence, to my mind, establishing the truth of the imputation of criminal offence against the respondent even on strict proof not to talk about proving beyond reasonable doubt. It is not being shown that respondent collude with the persons who defrauded the bank of the sum of N800,000.00 in August, 1987. It is now being contended in both the appellants’ brief before this Court and the evidence of the only defence witness that he was merely negligent and was not even accused of gross negligence. The sudden shift of position does not assist the appellants in their defence. Indeed, parties did not join issue on negligence. The sole defence witness who was unsworn testified inter alia thus –
“In 1987, when he was still the branch manager there was a fraud for the sum of N800,000.00 PZ Account after which the plaintiff was queried. He was subsequently suspended pending investigation and determination of the case. In March, 1988, he was recalled and was warned. He was later transferred to Central Office Apapa. He was found not to have directly stolen the money …..
The plaintiff was suspended in November, 1987, pending the determination of the fraud case involving PZ Account for the sum of N800,000.00. During the suspension the plaintiff was found negligent being the branch manager of the branch. The plaintiff did not answer the query given to him by the 1st defendant.
The reply was not satisfactory. If he had exercised due control expected of him as a Branch Manager the fraud could not have been perpetrated by the fraudsters.
When the fraudsters came to open the account the plaintiff as Branch Manager could have verified the referees signature and the authority of person of the fraudster.
By fraudsters, I mean the persons who purportedly opened the account on behalf of PZ. The manager should have written to the referees including a personal visit to PZ.”
(underling mine)
It is interesting to note that this unsworn witness did not lead evidence of procedure for establishing a new account at the first appellant’s branches which was breached before he started to pontificate. The two omissions (his not taking oath and lack of evidence on procedure for opening account) are fatal to his testimony. Section 179 of the Evidence Act, Cap 112 of the Laws of the Federation of Nigeria, 1990, requires that evidence given in any proceedings, except it is otherwise provided under sections 181 and 182 of the Act must be adduced upon oath or affirmation in compliance with Oaths and Affirmation Act: Anatogu vs. Iweka. II (1995) 8 NWLR (Pt.415) 547, 575. Be that as it may, the evidence tendered and culled from the testimony of the sole witness of the appellants which is inherently contradictory did not support the defence of justification. It neither sought to prove nor proved that the respondent in truth was involved in the fraud entailing or implying theft of N800,000.00 from the PZ Account at the first appellant’s Agbowa-Ikosi branch. Rather, the evidence exonerated him of the offence. The defence of justification therefore does not avail the appellants. This view is fortified by Exhibits S and S I. In exhibit S the appellants stated or admitted inter alia that –
“The publication of course has no substance as we have carefully investigated the fraud in question and found Mr. Asaolu innocent but weak and negligent in some areas. In our opinion Negligence does not constitute involvement..”
While exhibit S1 peremptorily declared that-
“Our source investigation revealed that the branch manager was in no way involved.”
(underling mine)
On defence of qualified privilege, learned Counsel for appellants contended that appellants’ defence is that the words complained of was made on a privilege occasion and that the first appellant had a duty to publish the words complained of and that the persons who received them had corresponding interest to receive the information. Learned Counsel in the appellant’s brief read a portion of the judgment of the trial court and contended that it was not the position of the law. Learned Counsel submitted that the failure of the respondent to plead actual malice in his reply to appellants’ plea of qualified privilege is fatal to the case for the respondent.
The court was in error in holding that the words complained of, learned Counsel argued, were false which also led him into erroneously concluding that the falsehood destroyed the defence of privilege occasion. Learned Counsel also sought for expulsion of exhibit R on account that in their pleadings as well as their evidence in court appellants contended that the circular was not written by its managing director. He urges this court to reject and strike out Exhibit R.
There is substance in the submission of the learned Counsel for appellants that it is trite that if the defence that the words complained of were published on a privilege occasion is established it is a complete defence to a claim of damages for defamatory publication. Provided that the party who made the publication has a duty to publish the words complained of and that the recipients of the words had corresponding duty to receive the information. The crux of the matter in issue from authorities is whether, there was such reciprocity of duty and interest between the defendants and the person or persons to whom exhibit D was communicated; that is whether the person or persons concerned had any power to deal with the complaint contained in the accusation so as to avail the defendant of the defence of qualified privilege. This is supported by the observation of this court per Salami, JCA in Obasuyi vs. Ezeigbu (supra) at p.596 that-
“It is settled on these authorities that qualified privilege is an occasion where the maker of the publication has an interest or duty whether legal, social or moral to make it to a person who has corresponding interest or duty to receive it. The existence of such an interest or duty to receive it. The existence of such an interest or duty destroys the inference of malice which the law makes and allows for the occasion to be privileged except there is evidence of actual or express malice. The question always was the appellants in the instant appeal under a duty or has an interest to protect by making the communication? The words moral or social duty was defined in the case of Stuart vs. Bell (1891) 2 Q.B. 341, 350; (1891) 64 L.T.R.N. S.633. This same meaning was adopted and applied by the Federal Supreme Court in the case of Phoebus Economides vs. S Thomopules & Co. Ltd. (1956) SCNLR 40 at 47 (para A); (1956) I FSC 7 at page 12 where Jibowu F. J. an eminent jurist stated thus –
“In his judgment in Stuart vs. Bell, Lindley, L. J., said.-
“I take moral or social duty to mean a duty recognised by English people of ordinary intelligence and moral principle, but at the same time not a duty enforceable by legal proceedings, whether civil or criminal”. This appears to be an apt description of what moral or social duty is. It is what the mass of the people would consider as their duty to do and the failure to do which they will consider to be wrong.”
The appellants therefore was within his right to pursue both his legal, social or moral right. In this regard, the appellants circulated exhibit D to the branches and area offices of the first appellant. There is no definition of what the first appellant considers to be its branches and area offices bearing in mind that the cause of action arose when it was known as Bank of Credit and Commerce International Nigeria Limited. In addition, on the evidence accepted by the learned trial Judge, it circulated the same circular No.704, exhibit D, to the Central Bank of Nigeria and other banks both local and overseas. It equally sent it to non-banking institutions such as KPM Peat Marwick Ani, Ogunde Consultants, maker of xhibit J1.
However, a careful examination of the pleadings of the appellants nowhere averred to the facts on which the defence of privilege communication was pegged. It failed to plead the statutory or social or moral facts justifying its publishing the document to both local and overseas bank as well as amongst its staff in the branches and area offices. They did not fail to aver to any statutory nor a Central Bank’s circular or rule of practice authorising such a wide circulation. All the appellants relied upon both in their statement of defence and in their brief in this court, is a terse statement to the effect that the publication was made on a privileged occasion and without malice and the appellants had a duty to issue the circular, and the second and third appellants or defendants managers in all branches had a duty to receive same. The appellants’ plea at paragraph 8 of their amended statement of defence seems to be disquietly silent on the area offices to which exhibit D was also circulated. The averment contained in the statement of defence raising the defence of a “privileged communication” per Lord Atkin in Adams vs. Ward 1917 AC 309, 334 is far below the standard placed on a defendant seeking to raise such defence. It is trite that defendant who raises a defence of qualified privileged in a claim for damages for defamatory publication should as a matter of pleadings aver the facts upon which the defence is based. In other words, the fact which entitles or gives him right to the defence. See Offoboche vs. Ogoja Local Government (2001) FWLR (Pt. 68) 1051, 1069 referred to in respondents’ brief. It seems to me that the defence on the pleadings collapsed like a pack of card as the appellants failed to show any community of interest between them and their communicants.
Learned Counsel for appellants strenuously contended, in the appellants’ brief that failure of the respondent to plead express malice in his reply to the statement of defence in rebuttal of the appellant’s plea of qualified privilege is fatal to the respondent’s case. What is ordinarily entailed in the defence of qualified privileged is that it is the occasion on which the statement is made that is privileged malice cannot be implied from the defamatory expression thereon, but must be proved as a real fact. The fact that malice cannot be implied on a plea of privileged communication informed paragraph 7 of the reply to amended statement of defence dated 29/5/97, contrary to the submission of the learned Counsel for appellants that express malice was not pleaded. Actual or express malice was pleaded by the respondent. Paragraph 7 wherein the respondent pleaded actual malice reads as follows;
“7. In reply to paragraph 8 of the amended statement of defence, the plaintiff states that the publication made against him by the defendants in circular 704 dated 21/1/89 which was/is to the knowledge of the defendants is a bundle of false hood and wicked destructive, damaging and malicious.”
Consequently, the learned trial Judge’s finding that the words were published with malice is well founded and correct. It is erroneous to contend that his finding was predicated upon technical and not actual or express malice. The submission of the learned Counsel for appellants that the evidence upon which finding was predicated was not pleaded and that this court should discountenance the relevant evidence and set aside the finding is not only erroneous and misconceived but also grotesque. The evidence tendered in respect of express or actual malice by the respondent and accepted by the learned trial judge was properly put in evidence and admitted.
The remaining point canvassed in the appellants’ brief under this issue touches upon the genuineness of exhibit R. The appellants’ learned Counsel, in their brief, claimed that they pleaded that the circular did not emanate from the first appellant and was not written by its managing director. According to Counsel the authenticity of the letter was thereby put in issue. This submission is not borne out by the appellants’ amended statement of defence which did not manifest where the authenticity of exhibit R was put in issue by the appellants. The appellants themselves, in their brief, failed to direct me to any particular paragraph or paragraphs of the statement of defence containing such an averment. It follows that the evidence adduced asserting that exhibit R is a forgery goes to no issue and should be discountenance. It is settled that courts of trial are to limit themselves severely to the issues raised by the parties in their pleadings. To act otherwise might well result in denial of justice to one or the other of the contesting parties. See African Continental Seaways Ltd vs. Nigerian Dredging Roads and General Works Ltd (1977) 5 SC 235, 248 and the statement by the learned Authors of Bullen and Leake on Precedent of Pleadings – 12 Edition p. 8.
I also endorse the principle formally stated by Lord Wrenbury in Wilson v United Counties Bank Ltd 1920 AC 102 at 143 thus-
“It is certainly a salutary principle that a court of justice should confine itself to adjudicating upon the question or questions raised by the parties litigant to the exclusion of other question which they do not advance.”
See George & Ors. vs. Dominion Flour Mills (1963) 1 All NLR 71 and Metalimpex vs. A.G. Leventis & Co. Ltd. (1976) 2 SC.91. The parties having not joined issue on the nature of the exhibit R, the Court would discountenance all the evidence advanced in respect of the non admissibility or otherwise of exhibit R which respectfully was receivable and was properly received. The reliance placed on it by the learned trial Judge was, therefore, correct and impeccable.
There is an incidental aspect of this issue which deals with burden of proof. It is the case of the appellants that the document, exhibit R has a dubious origin or it is forged or fraudulent. In that case, it is settled principle of law and common sense that any allegation of fraud must be pleaded and proved with utmost particularity. As it had been aptly and admirably enunciated by Thesiger, L. J. in Davv vs. Garret (1878) 7 Ch.D 473 at 489-
“In the common law courts no rule was more clearly settled than that fraud must be distinctly alleged and as distinctly proved, and that it was not allowable to leave fraud to be inferred from facts,”
(underling mine)
Again in United Africa Co. Ltd. vs. Taylor 2 WACA (PC) 70, 71 Lord Maughan delivering the opinion of the Board observed as follows-
“In the opinion of their Lordship there is no rule which is less subject to exception than the rule that charges of fraud and a fortiori charges of criminal malversation or felony against a defendant ought not to be made at the hearing of an action unless, in a case where there are pleadings, those charges have been definitely and clearly alleged, so that the defendant comes into court prepared to meet them.”
(underlining mine)
In the circumstances of this allegation, the defendants incidentally appellants in the present proceedings ought to have strictly and distinctly pleaded the allegation of fraud in their statement of defence, They failed to do so. It is not open to them to lead evidence on the unpleaded allegation of crime which also has to be proved beyond reasonable doubt. The burden to plead and prove that the authenticity of the document is in question is on the appellants who failed to lead any shred of evidence thereon. It is rather late in the day to cry on a spilled milk. It is fundamental that a party cannot deviate from his pleadings. A party would not have been taken to have established any evidence deviating from his pleadings and as such would not have been taken to have joined issue on falsity of exhibit R, not pleaded, but sought to be supported by evidence in endeavour to controvert the evidence properly adduced by the other party. See Odofin vs. Ayoola (1984) 11 SC.72, 116; Magaji vs. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt.7) 395, 430.
The answer to this question is also positive and the appellants’ ground 4 from which it derives fail and is dismissed.
Issue iv is the appellants’ outstanding issue. Just as the appellants are contesting the quantum of damages awarded by the learned trial Judge against them, the respondent is equally not happy with the amount of damages granted in his favour. Being thoroughly dissatisfied he too appealed against the decision of the learned trial Judge. It is convenient to treat appellants’ issue iv along with the sole issue in the cross-appeal since both issues deal with adequacy or otherwise of the damages awarded.
The learned trial Judge in assessing damages carefully and meticulously analysed the factors to be taken into consideration in assessing damages. Learned trial Judge set out 6 elements to be considered which he duly considered in his judgment seriatim. In this regard, learned trial Judge said –
“Conduct of the plaintiff-
- He did not on evidence commit any fraud. Intrinsic malice on the part of defendants had been proved. No excusable reason for publishing or circulating exhibit D. Plaintiffs effort to secure another job in banking and financial industry prove abortive because of Exhibit D. He did everything to mitigate his loss by seeking other job.
- Plaintiff position and standing at the time of the publication. Plaintiff was the manager of Agbowa-Ikosi branch. One of his colleagues who was the manager in another branch is now the Managing Director of the whole bank.
- Nature of the libel. The libel carries a criminal nature which stigmatises the plaintiff and brought his bank career to a halt. The criminal allegation was never proved. All the banks in the world are aware of the allegation. This is age of internet and computer. Evidence from Canada, Zimbabwe, Nigeria prove all these.
- Mode and extent of publication. It was fed into the information bank of the whole banking industry local and worldwide including Canada and Zimbabwe.
- Absence of Retraction or apology. No evidence of apology or retraction of circular No.704. Exh. D. It was aggravated conduct leading to aggravated damages. 2nd and 3rd defendants disobeyed the order of Managing Director through exhibit R that exh. D should be withdrawn from circulation immediately. For 11 years, it has not been withdrawn from circulation.
Keeping exh. D in circulation for 11 years against the order of the managing director is evidence of aggravated misconduct leading to aggravated damages.
Entire conduct of the defendants from the time of publication of the libel to the moment of the verdict.
For over II years the defendants remained unrepentant. They still persist and still maintain without sufficient ground that plaintiff was fraudulent. See the case of Ejabulor vs. Osha (1990) 5 NWLR (Pt.148) at p1 Ratio 20.”
(underlining mine)
These findings of fact of the learned trial Judge had not been appealed against. They therefore subsist until set aside. See Chukwunta vs. Chukwu 14 WACA 391 Aladegbemi vs. Faramade (1986) NWLR 129; Timitimi vs. Amabebo 14 WACA 374; 377 and Adebanjo vs. Johnson (1969) 1 All NLR 176, 194. It is not open to the learned Counsel for crossrespondent who has not appealed against those findings to contend, at this stage, that such findings are not supported by evidence.
On the issue of republication, the appellants admitted publication to its area offices and branches, the scope of which remains undefined particularly so when cross-respondent was known and styled Bank of Credit and Commerce International Nigeria Ltd. at the time relevant or material to the publication of exhibit D. The writer of exhibit F traced his source to the branch manager of Bank of Credit and Commerce International (BCCI)…. Montreal, Mr. Amin-Ud-Din. The source of information in exhibit F1 is another manager of BCCI in Luxemburg. The publications to the makers of exhibits F and F1 are deemed as good as publication by the first cross-respondent, unless it is otherwise proved and it was not. Both branch managers are within the scope of their branches or area offices. The cross-respondents were the makers of exhibit D which, unlike newspaper publication is not available on the news stand for purchase. It is consequently incumbent on them to explain how the republishers came by the offending publication. The facts of the publication to the institution abroad are peculiarly within the knowledge of the appellants particularly the second and third defendants who were hell bent on libelling the cross-appellant.
The two defendants disobeyed express instruction of their boss, the managing director, to withdraw exhibit D from circulation. On the evidence presented by the cross-appellant on his failure to secure employment in Nigeria, there is no substance in the submission of the learned Counsel for cross-respondent that there is no evidence that the document was sent by the cross-respondent to the cross-appellant’s prospective employers. It is impliedly the case of the cross-appellant that the document was sent to the institutions by the cross-respondent. The position, in any case, contrary to the submission of the learned Counsel for cross-respondent is borne out by the evidence before the court. It is apparent from exhibits F, F1 and J1 that appellants/cross-respondents supplied the publication to the makers of the exhibits. For easy reference, I propose to again read exhibit J1 which had already been read elsewhere in this judgment. The relevant portion of exhibit J1 reads as follows –
“…but our detailed confidential information (which we must obtain) from his present/previous employer- Bank of Credit and Commerce International (Nig.) Ltd is very discouraging. His appointment was reportedly terminated for fraudulent activities on 30/9/88 as listed in the Bank’s Information Circular NO.704 dated 21/01/89 which we obtained from the Bank.”
(underlining mine)
This serves as coup degrace to the argument that publications outside the banks branches and area offices are unauthorised. It takes the wind out of the sail of the appellants’ argument that there is no evidence linking them to the publications outside their branches and area offices. It also removes the sting out of the cited case of New Nigeria Bank Plc vs. Egun (2001) 1 NWLR (Pt.711) page I at page 19. The facts in that case are different from those of the present case.
Generally, one who utters a slander or writes and publishes a libel is prima facie not liable for voluntary and unauthorised repetition or republication by a person to whom it was published by him. Weld-Blundell vs. Stephens (1920) AC 956 applied in Bradstreets vs. Mitchell (1933) Ch.190. The rationale behind that is that such repetition of publication is not the necessary natural or probable consequence of the original publication.
There is however no rule without exception. There is exception to this rule which makes the initial publisher liable in three circumstances defined in Speight vs. Gosnay (1891) 60 LJ QB 232. Although, the case was on repetition of slander, the same rule would apply to libel. See Mcrkaft vs. Pawluk (1931) 1 WWR 699 and Shore vs. Britski (No.2) (1942) 2 WWR 345. The three instances when the original publishers are made liable are-
“(a) Where he authorised or intended the person to whom he published the words to repeat or republish them to some third person;
(b) Where the repetition or republication of the third persons was the natural and probable result of the original publication.
(c) Where the person to whom the original publication was made was under a moral duty to repeat or republish the words to a third person.”
The republication to the overseas institutions was intended to further injure or harm the cross-appellant. It was intended for the authorities of the institution he attended to delete his name from its register. KPMG Peat Marwick Ani Ogunde Consultants had moral duty to communicate the information to Mr. Piere Paul Rogers Cavelier Tableware Ltd., who consulted them on suitability of respondent/cross-appellant for employment. The information to the knowledge of the cross-respondent/appellant was false, nevertheless it went ahead to supply it to the firm of consultants. It therefore, follows that even if the appellant was not directly responsible for some of the overseas publications; it is nevertheless liable for such publication.
On aggravated damages, the appellants/cross-respondent have made heavy weather or mountain out of a mole-hill. The case of Ekpeyong vs. Nyong (1975) 2 SC.71 relied upon as authority for contending that the court below awarded such a large sum in the belief that the respondent was entitled to aggravated damages even though no such relief was asked for is not a decision in a libel case. It is for that reason distinguishable. A plaintiff in a libel action is not required to plead or allege matters on which he will rely in aggravation of damages, If however, he does allege such matters, the court may not strike them out as embarrassing or tending to prejudice the fair trial of the case: Millington vs. Loring (1880) 6 QBD 190 and Whitney vs. Moiguard (1890) 24 QBD 630. It is common to plead that a libel caused distress and embarrassment to the plaintiff but sufficient for the plaintiff to merely close his statement of claim with the words. “And the plaintiff claims damages” – or, if there are several defendants, “And the plaintiff claims damages against defendants and each of them.” See paragraphs 997 and 998 of the Gatley on Libel and Slander Seventh Edition.
That is the practice for bringing an action in libel notwithstanding the plaintiff not praying for aggravated damages, it is within the scope or competence of the learned trial Judge to order payment of aggravated damages if he is satisfied that a case for aggravated damages had been made out.
There is also no substance in the submission of counsel for cross-respondent that it is the standing of the plaintiff at the time of the libel that mattered and not standing of his colleague at that time. Learned Counsel sought reliance, out of desperado, I suppose, on the case Maryang vs. Punch Nig. Ltd. (1994) 7 NWLR (Pt.358) 570 at 585. Paragraph F. I looked up for the authority and what I found at the page referred to, does not bear out the submission of the learned Counsel for cross-respondents/appellants. At page 585, my learned brother, Okezie, JCA said
“With referenced to quantum of damages, it has always been said that the assessment of damages does not depend on any legal rule it is said to be peculiarly within the province of the trial Judge in assessing damages, the court will take into account all the circumstances of the particular case.
The Court is entitled to take into consideration the conduct of the plaintiff, his position standing, the nature of the libel, the mode and the extent of the publication. The conduct of the defendant.
The object of awarding damages is to compensate the plaintiff for any loss or injury the plaintiff has suffered. The courts do not award exemplary damages unless in clearly desiring cases. In the instant case, the appellant has not made out a case for aggravated damages.”
(underling mine)
With respect to learned Counsel for cross-respondent, Okereke, there is nowhere in the contribution of Okezie, JCA, which I have set out in extenso it can be found a statement that “the standing of the plaintiff at the time of the libel that mattered and not the present standing of someone who was his colleague at that time.” This Court was ominously silent on the issue in that judgment. The issue raised by both learned Counsel for cross-respondent in the cross-respondent’s brief and for respondent in the respondent’s brief respectively touches upon compensatory and not exemplary damages. The learned Authors of Gatley on Libel and Slander 7th Edition at paragraph 136 quoted from Bart vs. McBain (1874) 29 Mich 260 this passage –
“Compensatory damages…..may include not only actual pecuniary loss and anticipated pecuniary loss or any social disadvantage, which results or may be thought likely to result from the wrong which has been done….”
See also, Hartman vs. Morning Journal (1892) 19 NYS 380. The above passage encapsulated what informed the learned trial Judge to compare the fate of respondent with the position now occupied by a fellow manager. The finding of the learned trial Judge to the effect that another person who was a manager of another branch when the respondent was also a branch manager at Agbowa-Ikosi is now the managing director of the whole bank is accommodated, to my mind, by the words “may be thought likely to result.”
The respondent has lost the advantage of becoming the managing director of the bank in the manner his colleague had excelled. It is therefore my respectful view that learned trial judge has not faltered by the inclusion of this yardstick amongst the factors he considered relevant for assessment of damages.
It is settled that in a libel case “the assessment of damages does not depend on any legal rule.” The amount of damages is peculiarly within the province of the jury which translates in our legal system to the trial Judge who sits without a jury and in assessing same will naturally be governed by all the circumstances of a given case. There are a number of such peculiar circumstances set out in paragraph 1358 of Gatley on Libel and Slander 7th Edition – Titled Assessment of Damages. The appellants have unsuccessfully assailed the factor relied upon by the learned trial Judge. The factors relied upon by the learned trial Judge fall squarely within the compass of paragraph 1358 which has just been referred to. There is, therefore, no authority to contend that the learned trial Judge fell foul of the principles of assessment of damages. The principles applied by him even though he made no reference to the principles contained in Gatley on Libel and Slander. The learned trial Judge was well guided by the principles enunciated in paragraph 1358 of the book. The appellants have not been able to show which of these factors fell short of the guideline to enable me interfere with his assessment of damages. The assessment of the trial Judge cannot, in the circumstances of this case, be disturbed. See Dumbo vs. Idugboe (supra) 54 where the Supreme Court approved placing reliance on the same paragraph of Gatley on Libel.
The appellants’ issue iv is answered in the positive ground 6 of the grounds of appeal from which it derived fails and is dismissed. All the grounds of appeal having failed and dismissed the appeal equally fails and is dismissed with costs assessed at N10,000.00 in favour of respondent and against the appellants.
Supreme Court laid down the principle for interfering with assessment of damages by a trial Court in Ziks Press Ltd. vs. Alvan Ikoku 13 WACA 188. It was in that case held that an appellate Court will intervene in the award of general damages, when the trial Judge proceeded upon a wrong principle of law or that his award was clearly an erroneous estimate, if the estimate is too low or too high. See Flint vs. Lovel (1934) All ER 200, 202-203. It has not been amply demonstrated apart from the claim in the respondents’ brief that the damages are ridiculously low simpliciter. There are no authority shown to the court other than the case of Nirchandain vs. Pinheiro (2001) FWLR (Pt.48) 1307, where Galadima, JCA stated as follows at pages 1326-1327 that –
“N=3 million is not too much to atone for the injured feelings of the respondent, his social and business status, when the importance of the respondent’s reputation as placed before the lower court, is considered. For it is acceptable philosophical saying for all ages that –
“when wealth is lost nothing is lost, when health is lost something is lost, but when character is lost, everything is lost.”
N=3,000,000.00 was accepted as adequate, but in the instant appeal N=5,000,000.00 has been awarded which is higher than N=3,000,000.00 awarded to the respondent in the case of Nirchandani vs. Pinheiro (supra). I have not been shown any other authority to the effect that the N5,000,000.00 awarded to the respondent in this appeal is not the highest awarded in recent times. Indeed, general damages of N=6,000,000.00 in Basorun vs. Ogunlewe (2000) 1 NWLR (Pt.640) 221, another libel case, was considered excessive by this Court which reduced it to N=250,000.00. The respondent/cross-appellant talked about inflationary trend in Nigeria apparently on the strength of Uren vs. John Fair Fax (1967) 117 CLR I 16, 150 where it was stated that –
“a man defamed does not get compensation for his damaged reputation, he gets damages because he was injured in his reputation.”
I agree therefore with learned Counsel for cross-respondents that this might not be an apt authority for taking into account assessment of damages on the ground of severe inflationary trend. There are, however, authorities for taking into account the buying power of the national currency in assessing damages. See Senior vs. Baker & Allen Ltd. (1965) 1 WLR 429, 432, where Lord Denning MR examined an award made in 1953 in an accident of an almost identical description and observed thus-
“We all know the value of money has changed since that time. The award shows how the judges keep pace with times.”
In the recent case of Benue Printing and Publishing Corporation vs. Gwagwada (1989) 4 NWLR (Pt.116) 439 at 445 this count said-
“Moreover, the inflationary trend presently existing coupled with the fast dwindling purchasing power of the Naira must also be examined closely.”
I am on these decided cases persuaded that the plummeting buying power of the Naira is a factor to be taken into account in assessing damages to be awarded to the respondent. The learned trial Judge did not take this factor into consideration, when he made an award of N=5,000,000.00 to the respondent in the year 2001, the very year this court accepted N=3,000,000.00 as adequate compensation. I am, therefore, not encouraged to intervene in the award made to the respondent. In my respectful view, I think the respondent should be contented with the decision of the trial court particularly vindication of his character. The essence of awarding damages in libel cases to successful plaintiffs is to vindicate his character or reputation. It is not meant to be punitive or exemplary as was rightly observed by my learned brother, Nzeako, JCA, in Basorun vs. Ogunlewe (supra) 238 as follows-
“On the issue of quantum of damages, (also hold the view that the award of N= 6 million having regard to all the circumstances of the matter was indeed excessive. An action for libel is aimed at vindicating the character of the plaintiff. It is true that once a publication is proved to be libelous the law presumes damages. See Rotimi Williams vs. West African Pilot (1961) All NLR 866.
Having secure vindication, I should think the quantum of damages should be reasonable. Money paid as damages in an action for libel is not, in my respectful view, as important as vindication of character which plaintiff secures when the court found for him as it, done in this case. This is one reason why the courts may not set out for “a kill” in awarding damages in an action such as the present one.”
(underling mine)
The respondent should imbibe this dictum and accept his vindication of his character as more important than filthy lucre. I reluctantly dismiss the cross appeal and affirm the decision of the learned trial Judge Yusuph, J.,including award of N5,000,000.00 awarded by the learned trial Judge.
There is no order as to costs in the cross-appeal; each party to bear his or its own costs. There is costs in the appeal, which had been assessed at N10,000.00 against appellants/cross-respondents.
Other Citations: (2005)LCN/1772(CA)
