Dayo Duyile & Anor V. Kelly Ogunbayo & Sons Ltd. (1988)

LawGlobal-Hub Lead Judgment Report

M. A. BELGORE, J.S.C.

In a publication of the “DAILY SKETCH” newspaper, dated 25th day of November, 1977, at the time when 1st appellant was its editor, it was inter alia written of the respondent as follows:

“Ogun State Price Board has announced that the sales of commodities worth N29,I33.68 will take place today at the stores of Kelly Ogunbayo and Sons Ltd., No.2 Ibadan Road, Iperu Remo, near Sagamu and starting at 9.00 a.m. (sic).”

The publication was headed in bold letters “PRICE CONTROL TO SELL N29,000.00 HOARDED BEER.” The respondent wrote to the first appellant demanding an apology claiming that the said publication complained of was defamatory. That was on 21st day of December, 1977; and by 11th January, 1978 the final reply of the appellants was that the publication was not defamatory as, they contended, it was a true reproduction of public announcement by Ogun State Price Control Board.

It must be pointed out that at the trial of the action, on libel before the High Court at Sagamu, it was in evidence that the appellants never had in their possession the alleged announcement by the Price Control Board. Secondly, it was evident that though the respondent company was tried for hoarding beer, it was discharged and acquitted and was therefore never found guilty of an offence under the Price Control Decree 1977.

Thirdly, it was after litigation was commenced that the appellants wrote on 3rd April, 1978 to Ogun State Ministry of Local Government and Information requesting for a copy of the announcement by the Price Control Board, which was duly sent on 17th April, 1978.The learned trial Judge, after hearing all the evidence held that the publication complained of was defamatory and that it was libellous of the respondent company. He further held it was published recklessly as the appellants had not by the time they published, seen the announcement by the Price Control Board, otherwise they did not have to ask for a certified copy from the Ministry.

On the question that the publication though defamatory, could be covered by privilege, the trial Judge dealt extensively on this subject. The law governing qualified privilege is clearly stated in Section 16 of the Defamation Law Cap. 33 of Laws of Ogun State 1978:

“16 (1) Subject to the provisions of this section, the publication in a newspaper of any such report or other matter as is mentioned in the Schedule to this Law shall be privileged unless the publication is proved to be made with malice.

(2) In an action for libel in respect of the publication of any such report or matter as is mentioned in Part 2 of the Schedule to this Law the provisions of this section shall not be a defence if it is proved that the defendant has been requested by the plaintiff to publish in the newspaper in which the original publication was made a reasonable letter or statement by way of explanation or contradiction, and has refused or neglected to do so or has done so in a manner not adequate or not reasonable having regard to all the circumstances.

(3) Nothing in this section shall be construed as protecting the publication of any matter the publication of which is prohibited by law, or of any matter which is not of public concern and the publication of which is not for the public benefit.

(4) Nothing in this section shall be construed as limiting or abridging any privilege subsisting at common law immediately before the commencement of this Law.”

The publication by the Price Control Board enjoys qualified privilege only if it was published without malice. The question here is that the appellants published without seeing the alleged announcement and the learned trial Judge held that that single act alone removed any cover of privilege from their publication. The most surprising aspect of this case is that the appellants without seeing the announcement and when confronted with respondent’s letter in line with S.16(2) of Defamation Law, maintained that their publication was not defamatory.

At the Court of Appeal, ten grounds of appeal were argued; the general ground and the rest additional grounds of appeal on error of law filed with leave. The Court of Appeal upheld the decision of the trial Court that the main plank of the defence, qualified privilege, could not avail them in that the publication complained of was not based on the announcement by the Price Control Board. As the defence was not available to the appellants, the respondent was never placed in a position to invoke the plaintiffs’ right in law to file a reply to such a defence alleging in the process express malice as in S.B. Bakare v. Ado Ibrahim (1973) 6 SC. 205. The Court of Appeal allowed the appeal in part – it found no justification for the award of N50,000.00 each for (a) Natural grief and distress and (b) Social disadvantage. Also the remaining N100,000.00 awarded as loss of profit was reduced I to N20,000.00 and as there is no cross appeal by respondent, this reduction could not be challenged in this Court. Similarly this Court has not been moved by the respondent to vary the judgment as provided by Order 8 Rule 3(1) of the Supreme Court Rules 1985 and as such the reduction of general damage by the Court of Appeal cannot now be challenged.

The appeal before this Court has taken a new dimension. Grounds 1-7 complained on the award of damages of N20,000.00, being the reduction of N100,000.00 originally awarded as pecuniary loss. The appellants formulated the issue for determination in their brief as follows: