Alhaji L.M.O. Gomes V. Punch (Nigeria) Limited & Anor (1999)
LawGlobal-Hub Lead Judgment Report
PIUS OLAYIWOLA ADEREMI, J.C.A.
In the court below, the plaintiff sued the defendants jointly and severally claiming N500,000.00 (Five Hundred Thousand Naira) being general damages for libel contained in June 29, 1985 page 11 issue of the Punch newspapers, sub-headlined LDFA to render account” with the following:
“The council also indicted the former Chairman and Association Accountant, Alhaji Gomes as operating an autonomous body while in office without keeping proper books and records or its financial transactions and assets and without being accountable to anyone.”
He also claimed an injunction restraining the defendants jointly and severally by themselves, their agents or servants or otherwise from publishing the said or similar libel or and concerning the plaintiff and an apology from the defendants to be caused to be published in their newspapers in respect of the libellous article, Amended statement of claim and amended statement of defence, with the leave of court, were eventually filed and exchanged between the parties.
Subsequently the case proceeded to trial. And after taking the addresses of counsel on both side, the learned trial Judge of the court below, A.L.A.L. Balogun J. dismissed the plaintiff’s claim on 28th December, 1992 by concluding as follows:
“I do not think that the words published by the defendants could bear any meaning beyond their true and natural meanings therein and do not bear the innuendo placed on them by the plaintiff. But on the fact of this case, even if they did, I am satisfied from the pieces of evidence led at the trial that the article published by the defendants was published on a qualified privilege occasion. Furthermore, I am also satisfied that what was published by the defendants was exactly what was released to them and which were contained in the Auditor’s report. I am also satisfied that the publication having been made on a privilege occasion, the defence of qualified privilege raised by the defendants must succeed and I uphold the same. See Oyejike v. Anyasor (1992) 1 NWLR (Pt.218) 437.
In these circumstances, I find and hold that the plaintiff failed woefully to prove his claim which I therefore dismiss.”
Being dissatisfied with the judgment of the court below, the plaintiff appealed therefrom to this court on one original ground and four additional grounds of appeal. He (plaintiff/appellant) distilled five issues from the original and additional grounds of appeal and they are as follows:
- Whether the learned trial Judge had power to make a case which the defendant did not put forward.
- Whether the learned trial Judge can approbate and reprobate on the same and singular fact.
- Whether the learned trial Judge was right to accept the plaintiff as “the former Chairman and Association Accountant.”
- Was the learned trial Judge right in the interpretation of Exhibit “P3” the Auditor’s report.
- Has the learned trial Judge properly evaluated the evidence and thereby came to a right decision?
The respondents on the other hand formulated two issues in their brief of argument for determination and they are:
- Whether the appellant’ complaints as contained in its grounds of appeal are sufficiently challenged to the validity of the judgment to warrant setting aside the said judgment and entering judgment in favour of the appellant.
- Whether the said grounds of appeal are in fact sustainable upon the records.
Whether appeal came before us on 28th January, 1999 for argument, Mr. Akinduro, learned counsel for the appellant, adopted the appellant’s brief and his reply brief and while citing the cases of Mayange v. Punch (Nig) Ltd. (1994) 7 NWLR (Pt. 358) 570; Onwu v. Nka (1996) 7 NWLR (Pt.458) 1 and Ugo v. Okafor & Anor. (1996) 3 NWLR (Pt.438) 542 in addition to the authorities contained in the lists attached to the brief of the appellant he urged that the appeal be allowed. The respondents were not represented by a counsel although they filed brief of argument.
Upon a careful consideration of the issue formulated by both sides as set out above, I am of the view that this appeal can be disposed of by issue 5 formulated by the appellant and issue 1 formulated by the respondents and they are:
Issue 5 by the appellant:
“Has the learned trial judge properly evaluated the evidence and thereby came to a right decision?”
Issue 1 by the respondents:
“Whether the appellant’s complaints as contained in its grounds of appeal are sufficient challenge to the validity of the judgment to warrant setting aside the said judgment and entering judgment in favour of the appellant.”
Learned counsel for the appellant, Mr. J.O. Akinduro referred to the appellant’s brief and reply and adopted same. In addition to the list of the authorities that accompanied the appellant’s brief he called our attention to the decision in Mayange v. Punch (1994) 7 NWLR (Pt.358) 570; Onwu v. Nka (1996) 7 NWLR (Pt.458) 1 and Ugo v. Okafor & Anor. (1996) 3 NWLR (Pt.438) 542 and he finally urged that the appeal be allowed.
Although, the respondents were not represented by a counsel, having filed a brief, they are deemed to have adopted same.
I have carefully read the brief and the reply of the appellant and also the respondents’ brief. With due respect to the learned counsel for the appellant his brief and reply which are in the main, very verbose, do not seem to address the issue in this matter effectively. In its pleadings -the amended statement of defence – the defendants admitted writing and publishing the words complained of but that the publication was on an occasion of qualified privilege. The respondents’ brief clearly identified the issue in controversy in this appeal when they said that though the article or the words used in the said article might have defamed the plaintiff/appellant if they constitute an accurate or fair report of the Auditor’s report on an occasion of qualified privilege then the plaintiff/appellant could not found an action in defamation against the defendants/respondent. Continuing in their brief, the respondents further opined that the only point that turned for consideration before the court below was whether the defence of qualified privilege availed the defendants or not.
I pause for a while to observe that the first and second defendants did not call evidence at the close of the plaintiff’s case to establish the averments in their amended statement of defence. The position of law in this type of situation is clear. If one party to a dispute fails or refuses to submit the issues he has raised in his pleadings for trial by giving of calling evidence in their support, such issues or averments which need evidence for proof, are deemed to have been abandoned by the defaulting side. And a trial court, unless there are other legal reasons dictating to the contrary must resolve the case against the side that has defaulted in proving the averments in his pleadings See Imana v. Robinson (1979) 3 & 4 S.C. 1. Furthermore, if under such circumstances, it is even clear that the evidence adduced, at the trial, by the plaintiff remains unchallenged, a court of trial has no alternative but to enter judgment in favour of the plaintiff. See Okupe v. Ifemebi (1974) 3 S.C. 97.
The plaintiff and two of his three witnesses were, however, subjected to vigorous cross-examination and a number of documents were tendered through them under cross-examination and a number of documents were tendered through them under cross-examination.
It admits of no argument that the words complained of which are quoted supra are clearly defamatory of the plaintiff in their natural and ordinary meanings. While testifying under examination-in-chief the plaintiff said he received a letter from the Sole Administrator of Lagos State Sports Council which was admitted in evidence as Exhibit P3, a letter dated 21st June 1985 which was addressed to the plaintiff by the Sole Administrator reads in part:
“Audit report of the former Lagos Divisional Football Association Operations (1984)
I forward herewith extract from the report of our External Auditors, Messrs B.O. Omotosho & Co. Relating to the affairs of the former Lagos Divisional Football Association of which you were Accountant for your comments.
As the present government places high premium on accountability for public funds it will be appreciated if you can make your explanations available in good time to enable Government to take further necessary action please.
SGD. A.O. Oshodi
Sole Administrator”
Germane parts of the External Auditor’s report were forwarded along with Exhibit P3 to the plaintiff and they read:
“Lagos Divisional Football Association”
We also examined the available books and records of the above association and the following are our findings and comments:
- The Association operated an autonomous body without keeping proper books and records of its financial transactions and assets.
- Adequate records and information was (sic) not made available to us because during the period of our audit, the Accountant whom we learnt had been retired was still holding on to vital financial documents including the keys of the safe and cabinets which contain some of the records. All efforts to get this officer were unsuccessful
The plaintiff/appellant’s to Exhibit P3 in Exhibit P4 which in part reads:
“I received your letter Ref. LSSC.428/Vol.1/58 dated 21st June 1985 requesting me to comment on the discrepancies reported on by Messrs B.O. Omotosho & Co. Your External Auditors…
In conclusion, I should be grateful if permission is granted to enable me reconcile the external auditor’s figures with the records kept by me so far the concerned. The person(s) who handled the affairs after my redeployment should be requested to comment on the amount of N6,222.50.
You should please let me have the opportunity to re-claim my damaged name.
Yours faithfully,
L.M.O. Gomes”
When cross-examination he admitted that he was the former Association Account of the LDFA. He agreed that the Lagos State Sport Council is a statutory body and an arm of the government. He also agreed that in the courts of his employment he was dealing with public funds- a matter of public interest.
As observed above, the defence put up by the defendants/respondent is qualified privilege. By this defence, the defendants/respondents are saying no more than that even though the article in Exhibit P1 might be defamatory of the plaintiff or it might even be untrue or false, however, since it was published to the generality of the people who, of course, the law recognises as persons who have a correspondent interest to receive the publication from the first defendant (the Punch) that itself has the duty to publish it on the ground of public policy, it (first defendant) cannot incur any legal liability if the publication is not actuated by malice. It is the defence usually put up by media houses, which themselves are not only the mouthpiece of the public but their informants. So when the statement for article published is made honestly and without any indirect or improper motive a newspaper can legitimately taken a cover under the defence of qualified privilege and consequently it is immune from liability. This principles is founded under the general welfare of the society. The principle is best illustrated or explained by the dictum of Lord Atkinson in Adam v. Ward (1917) A.C. 309 when at page 334 he observed as follows:
“…A privileged occasion is, reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made and the person to whom it is so made has a corresponding interest or duty to receive it.”
Perhaps, I should here say that it is much to be desired that newspapers and television or news media generally should be free to bring to the notice of the public any matter of public interest or concern. But in order to be deserving of that freedom, the press must show itself worthy of it. A free press cannot be deserving of that appellation unless it is a responsible press. The power of the press is enormous. It must not abuse that power. If a newspaper should act irresponsibly then it forfeits any claim to the defence of qualified privilege. The press, in a society that upholds the rule of law as a way of life, has a solemn duty to feed the society with true facts and honest comments. That crucial function, in my view, tantamount to moulding positively public opinion. As far back as 1949, the Privy Council in English in the case of Perera v. Peiris (1949) A.C. I said that all instances of qualified privilege now to be considered can be subsumed within one general principle and that is that they exist for the common convenience and welfare of society. Once there is evidence of malice in the publication, the defence of qualified privilege will not avail a newspaper house see Ogoja L.G. v. Offoboche (1996) 7 NWLR (pt.458) 48 and Gatley on Libel and Slander 7th edition para. 444.
I have said above that the alleged offensive passage in Exhibit P1 was exfacie defamatory of the plaintiff. The court below after a thorough review of the whole case including the defence of qualified privilege put up by the defendants, concluded that the plaintiff had not made out his case. Can I upturn that conclusion on the face of the evidence I have evaluated and the applicable law examined?
The whole publication touches on public office. The first defendant as a mouthpiece and informant of the public was duty bound to inform the general public of any facts pertaining to how the plaintiff, a public officer at the material time, was discharging his official duties. Any individual who holds himself out as holding public office offers himself to public scrutiny. Let it be said that public interest requires that a man’s public conduct shall be open to the most searching criticism. Public office is public property. It cannot be assimilated with or regarded as an extention of any individual’s empire. However, I should not be mistaken to be saying that once a person holds a public office he thereby becomes a slave who can be battered and bruised at the whims and caprices of all and sundry. All I am just saying is that any public officer must always ensure that he displays high degree of probity and efficiency in the discharge of his official duties.
Before I conclude this judgment, I feel compelled to comment on one issue that stares one in the face from the record of proceedings before us. Even though the plaintiff’s case was dismissed in toto by the court below, the conclusion of which I shall soon reach in this appeal, the law is sacrosanct that in case of this type where damages are claimed, a trial court, notwithstanding that its has reached a conclusion dismissing the plaintiff’s claim must still go ahead to make necessary findings and quantify the damages so as to make it unnecessary for the appellate court to remit the case for a re-trial or assessment of damages should that court (the appellate court) find the case in favour of a dissatisfied plaintiff who has appealed against the judgment of the court below. See Alhaji Y.A. Bello v. The Diocesan Synod of Lagos & Ors. (1973) 1 All NLR (Pt.1) 247 or (1973) 3 S.C. 103.
Subject to the minor point of law raised immediately supra, for the reasons earlier stated, I find this appeal to be unmeritorious and devoid of substance. It must be dismissed and it is accordingly dismissed with N3,000.00 to the respondents.
Other Citations: (1999)LCN/0526(CA)
