Guardian Newspapers Ltd & Anor V. Rev. Pastor C.i. Ajeh (2011)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C.

I

n the Onitsha High Court of Anambra State, the respondent as plaintiff claimed against the appellants as defendants in paragraph 9 of his statement of claim:

(a) Ten Million Naira (N10,000,000.00) damages for Libel

(b) Injunction restraining the defendants, their agents and or privies from further publication of the libelous article Iyizoba, J (as she then was) presided. The plaintiff’s (a Pastor) case was that the 2nd defendant wrote an article in the Sunday edition of the 1st defendants Newspaper on the 3rd of December 1995. The article Titled “Lessons from a Pastor”, according to the plaintiff was false and malicious and portrayed him as a thief and dishonest person who stole items mentioned in the article, and that since the article was published his reputation has been damaged and he has lost his congregation. Three witnesses called by the plaintiff expressed similar views in their testimony on oath. The plaintiff claimed N10m damages for Libel.

The 2nd defendant who wrote the article testified that contents of the article are true. He pleaded that the article is fair comment on a matter of public policy. The plaintiff called three other witnesses while the defendants called three witnesses which included the 2nd defendant. Several documents were tendered as exhibits.

The learned trial judge heard evidence and considered the defence of fair comment and justification. Evaluated evidence and in a considered judgment delivered on the 23rd of February 2000 found that the article was libelous of the plaintiff, awarded N500,000.00 damages and restrained the defendants, its agents, privies from further publication of the libelous article. The defendants now appellants filed an appeal before the Court of Appeal Enugu Division, and in a unanimous decision delivered on the 22nd day of April, 2005 that Court dismissed the appeal in these words:

“All the issues are resolved in favour of the Respondent.

In sum this appeal lacks merit and it is dismissed accordingly. The judgment particularly award of damages by the trial court is affirmed. Costs of this appeal is assessed as N10,000 in favour of the respondent.

This appeal is against that judgment. In accordance with Order 6 Rule 5 of the Supreme Court Rules briefs were duly filed and exchanged. The appellants brief was filed on the 9th of December 2005, while the respondents brief was filed on the 27th of February 2006.

In the appellants’ brief three issues were formulated for determination of this appeal. The issues are:

1. Whether having regard to the state of the pleadings, the evidence and the law, the Court of Appeal below was justified in holding that the learned trial judge properly construed the provision of Order 9 Rule 4 of the High Court Rules, Anambra state 1988 and the avowed principle in Okafor v. Ikeanyi 1973 3-4 SC p.99 that the full of the publication or any part of it complained of must be set out verbatim in the pleadings.
2. Whether the learned justices of the Court below were right in holding that the trial judge properly dealt with the perception of facts and evaluation of the evidence before him prior to arriving at his decision.
3. Whether the learned justices of the court below were right in endorsing the punitive damages, awarded against the appellants when there was no evidence before the court that the appellants profited from their wrong doing nor was there any proof that the appellants’ received any request to correct the publication and they failed to do so.

On the other side of the fence, the respondent formulated two issues for determination. They read:

1. Did the learned Justices of the Court of Appeal take into consideration facts other than material facts pleaded by the plaintiff/respondent in determining whether or not the words complained were defamatory and is the judgment against the weight of evidence.
2. Did the learned Justices of the Court of Appeal award punitive damages contrary to known legal principles.

I shall restrict myself to the issues formulated by the appellants as it obviously brings into focus the real grievance of the appellants. At the hearing of the appeal on 1st of February 2011, both counsel simply adopted their briefs, appellants learned counsel urging us to allow the appeal and respondents learned counsel urging us to dismiss the appeal. Counsel said nothing in amplification of their respective briefs.

Both courts below found as a fact that the contents of the article published in the Guardian Newspaper on the 3rd of December 1995 was libelous of the respondent. Libel is statement/s in written form which causes a person to be exposed to hatred, ridicule or contempt, i.e. to be shunned or avoided and to be lowered in the estimation of right thinking people in the society. Put in another way to be disparaged in his profession or trade. The tort of defamation is either libel or slander, the difference being that the former is written while the latter is spoken.

The essential ingredients of libel are:

1. The words complained of must have been written;
2. The publication must be false;
3. The words must be defamatory or convey defamatory imputation;
4. The words must refer to the plaintiff;
5. It must be the defendant who published the words;
6. The onus is on the plaintiff to prove he was the one referred to in the alleged libel.

In cases of libel, pleadings are of tremendous importance, and so the plaintiff who claims that an article is libelous of him must reproduce the whole article verbatim or the particular passage he complains of in his pleadings. No matter how long the article is, it must be reproduced.

See D.D.G.A. Pharmaceuticals Ltd. V Times Newspapers Ltd 1973 1QB p21 relied on by this court in Okafor v Ikeanyi and ors 1979 12 NSCC p43. Issue NO.1 questions whether the provisions of Order 9 rule 4 of the High Court of Anambra State Rules 1988, were properly construed in view of the judgment of this court in Okafor v Ikeanyi (Supra) that the full of the publication or any part of it complained of must be set out verbatim in the pleadings.

Learned counsel for the appellants argued that the respondent ought to have been confined by the learned trial judge to what he pleaded in paragraph 6 of the statement of claim. Reliance was placed on D.D.G.A. Pharmaceuticals Ltd v Times Newspaper Ltd 1973 1QB p21 contending that the trial judge was wrong to rely on other parts of the article not pleaded. The Court of Appeal was wrong to agree with the procedure adopted by the learned trial Judge. Learned counsel for the respondent observed that the court did not take into consideration facts other than material facts pleaded and the relevant part of the publication was properly quoted at paragraph 6 of the statement of Claim.

The real issue for determination in these submissions is whether the pleading in paragraph 6 of the statement of claim is only what was relied on by the learned trial judge or the reference to further paragraphs of the article were also relied on to find that the article was libelous of the plaintiff. Order 9 Rule 4 Supra simply restates the obvious that pleadings must contain only material facts.

Paragraph 6 of the statement of claim relied on by the plaintiff as being offensive reads thus:

6 “So as fate would have it, I placed a lot of trust him, left him at home and went to work. Boy, what a dumb decision. Coming back around 16 hours that evening was even rather early for me. But the door was locked and the lights were not on. I immediately knew what had happened. I used the spare keys on me to allow myself in. Well, I was right, the house had been assaulted and Ajeh was nowhere to be found. Missing items include a sharp video cassette Recorder Model VC-A 30 BR, Aiwa compact disc digital audio player model DX-M75 H; Nino wall clock; Suits ties, a trouser, travelling bag; instruction manuals to the VCR-CD player and winder had also disappeared. I have sure learned my lessons the hard way, can you imagine from a pastor”

A certified true copy of the Guardian on Sunday of 3rd December, 1995 was admitted in Evidence as Exhibit C.

Paragraph 6 of the statement of claim reproduced above is part of paragraph c. In the judgment of the trial judge the judge referred to other parts of the article. Thus parts of Exhibit C were reproduced in the judgment. Extracts from the judgment runs as follows:

The 2nd defendant then wrote the article published at page B9 Guardian on Sunday of December 3, 1995 captioned “Lessons from a Pastor”. The first three paragraphs reads:

“The atmosphere that Sunday August morning I met Chukwuma Charles Ajeh after so many years at Oshodi in Lagos was that of a reunion. We were school mates at the Baptist Academy, Obanikoro also in Lagos, the 1976 – 81 set to be precise. That notwithstanding, and men being what they are, we warmed up to one another and got to talking as we patiently awaited our bus to CMS.

He said he was married with about five children and had left that dirty customs job and also given his life to Christ.

Indeed he explained that he was a clergy man now referred to as Rev. Pastor Chuma Israel Ajah, founder of one Christ Grassroot Church at No. 2 Christ Church Street, Onitsha in Anambra State”

The argument put forward by learned counsel for the appellants is that the court ought to confine itself to what was pleaded in the statement of claim. That the court cannot refer to the rest of the publication in Exhibit C that was not pleaded. Explaining, the learned trial judge said:

… “I am afraid I am unable to agree with learned Counsel for the defendant. Plaintiff was clearly identified. There may be many Ajehs but there may not be many who are pastors. The plaintiff and his witnesses, even the 2nd defendant himself in their evidence confirm that the publication relates to the plaintiff, that issue is not in dispute at all. … ”

The learned trial judge continued:

“what was set out in the pleadings in this case is the material part of the libelous material…. The plaintiff in this suit is not complaining of the whole publication. The libelous part of the publication is the part set out in paragraph 6 of the statement of claim. That part did refer to Ajeh and Pastor. Read in the circumstances of the entire publication leaves no doubt that the publication referred to the plaintiff….”

The court of Appeal agreed that the contents of paragraph 6 of the statement of claim is offensive and libelous of the plaintiff and it refers to the plaintiff. For the plaintiff to succeed in a case of Libel he must reproduce verbatim the whole of the article or the particular passage he complains of in his pleadings.

The respondent pleaded verbatim the particular passage of the article Titled “Lessons from a Pastor” in the Sunday Edition of the Guardian for the 3rd of December 1995.

Both courts below were satisfied with the following:

1. That the words complained of were written by the 2nd appellant in the Sunday edition of the Guardian on the 3rd of December, 1995.
2. The publication was false because the respondent was tried for theft in a Magistrate Court in Ikeja, Lagos. He was acquitted and discharged. The judgment of the Magistrate Court is inviolate until set aside. There is/was no appeal.
3. The words clearly convey a defamatory imputation that the respondent is a thief.
4. The 2nd appellant wrote the article and it was published in the Sunday Edition (3/12/95) of the 1st appellant.
5. The words referred to the respondent.

The onus is on the respondent/plaintiff to prove that he was the one referred to in the alleged libel. The respondent, as plaintiff called evidence to prove that it was he that was referred to in the article. The testimony of PW2, PW3, and PW4 was unassailable and infact, the identify respondent who was referred to in the article was never in issue. The appellant’s case is that the respondent is a thief and the article is fair comment on a matter of public interest. I am satisfied that both courts below were correct in their findings. The contents of paragraph 6 of the statement of claim refers to the respondent and it is defamatory of him. The contents of paragraph 6 of the statement of claim falls within the essential ingredients of, and are enough to prove libel. It was unnecessary to refer to other paragraphs in Exhibit C. The trial judge properly construed the provision of order 9 rule 4 of the High Court Rules, Anambra State 1988 and the avowed principle in Okafor v Ikeanyi 1973 3-4 SC p99.

The Court of Appeal was correct to confirm that decision. The Court did not take into consideration facts other than material facts pleaded in paragraph 6 of the statement of claim.

Issue No.2 reads:

Whether the learned justices of the Court below were right in holding that the trial judge properly dealt with the perception of facts and evaluation of the evidence before him prior to arriving at his decision.

Learned counsel for the appellant observed that the learned trial judge took diverse extraneous factors into consideration in its process of the said evaluation.

In response learned counsel for the respondent observed that the learned trial judge evaluated evidence by examining Exhibit C and all testimonies of witnesses, and the court of Appeal was correct to agree with the findings of the trial court. This court has stated again and again that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the court of trial which saw, heard and assessed the witnesses as they testified at the trial in the witness box. It is equally basic that where such court of trial unquestionably evaluates the evidence before it and justifiably evaluates the evidence before it and justifiably appraises the facts, it is not the business of the court of Appeal to substitute its own view for those of the trial court.

See Akpagbue v Ogu 1976 6SC p63

Woluchem v Gudi 1981 5SC p320

Ibanga v Usanga 1982 5 SC p103

The trial judge would have no difficulty in arriving at the correct decision if evidence is properly evaluated. Consequently where evidence is properly evaluated i.e. to say when all the principles of law relevant are properly considered an Appeal Court would been in much difficulty trying to disturb the findings arrived at by the trial judge. Such findings cannot be disturbed by an appeal court. Receipt of relevant evidence is perception, while evaluation entails the weighing of the evidence bearing in mind the surrounding circumstances of the case.

Findings of fact by the trial judge involves both perception and evaluation.

After reviewing evidence the learned trial judge said:

“I do not have any doubts and I have already ruled that the part of the publication reproduced in paragraph 6 of the statement of claim taken as it stands is capable of bearing a defamatory meaning.

The Court of Appeal had this to say:

“In the instant case, the learned trial Judge had unquestionably evaluated the evidence before it, it is therefore not for the Court of Appeal to re-evaluate the same evidence and come to its own conclusion.”

I am of the firm view that the trial judge evaluated evidence properly and there was no reason for the Court of Appeal to disturb the findings of the learned trial judge.

To my mind there is not much to evaluate in this case in view of the pleadings and evidence led. The respondent’s witnesses all led evidence showing their disgust after reading the offensive material. The appellants do not deny writing the offensive material. The appellant’s case is that the respondent is a thief and the matter is fair comment on a public policy. In court the 2nd appellant said an oath:

“All the contents of the article were written by me and I stand by it….”

I think learned counsel for the appellants would have been better off restricting himself to justifying the defence of fair comment rather than pursuing imaginary loopholes and how the judge evaluated evidence. This line of argument seems to be adopted because different counsel handled the case at the Court of Appeal and in this Court. An appellant who says he stands by what he wrote and it is fair comment ought not to be interested in evaluation of evidence. He should ensure the defence of fair comment is sustained. I am satisfied that the learned trial Judge evaluated evidence before him prior to arriving at his decision.

Issue No.3 reads as follows

Whether the learned Justices of the Court below were right in endorsing the punitive damages awarded against the appellants when there was no evidence before the court that the appellants profited from their wrong doing nor was there any proof that the appellants received any request to correct the publication and they failed so to do.

Relying on Awolowo v. Kingsway Stores Ltd and another 1968 2 ANLR p.27 Learned counsel for the appellants submitted that punitive and exemplary damages should only be awarded if the appellant profited from their wrong doing in publishing the defamatory article. He further submitted that since the appellants did not acquire any direct pecuniary benefit from the publication the sum of N500,000.00 awarded was excessive and this court should interfere.

Learned counsel for the respondent observed that the learned trial judge did not award punitive damages, and the Court of Appeal was correct to uphold the award of N500,000.00, contending that the sum was adequate in the circumstances. In conclusion he argued that the learned trial judge considered the relevant factors in assessing damages in Libel cases before awarding the sum of N500,000.00.

In libel cases, once the offensive article is found to be libelous of the plaintiff, damages follow and the damages awarded is general damages. On the other hand where there is direct pecuniary benefit from the offensive publication punitive damages are awarded. See Awolowo v. Kingsway Stores Ltd & anor. Supra.

I have made a diligent review of the judgment of both court below and nowhere therein was punitive damages awarded. The Court of Appeal found and rightly too that the award of damages by the trial court was not based on punitive and exemplary damages. After being guided by the factors to be considered before awarding damages the learned trial judge concluded by observing that there was absolute lack of remorse on the part of the defendants, then proceeded to award damages in the sum of N500,000.00. The award of damages once libel is established is an exercise of discretion by the learned trial judge, and as with all orders etc granted on the exercise of discretion the trial judge must consider the following factors when exercising his discretion:

(a) The standing of the plaintiff in society

(b) The nature of the Libel

(c) The mode and extent of the publication

(d) The refusal to retract or render an apology to the plaintiff

(e) The value of the local currency

See Mayange v. Panoh Nig Ltd 1994 7NWLR pt.358 p. 570 Ziks Press Ltd v. Alvan Ikoku 13 WACA p.188.

This court, as indeed an Appeal Court is always loath to interfere with the discretion of the learned trial judge but would be compelled to interfere if it finds that the judge acted upon an erroneous estimate, or a wrong principle of law was applied, such as taking into account some irrelevant factors or leaving out some relevant facts or that the award is either so ridiculously low or so ridiculously high that it must have been a wholly erroneous estimate of damage. See A.C.B. Ltd v. B.B. Apugo 2001 5 NSCQR p.549.

Before awarding N500,000.00 as damages for Libel against the appellants the learned trial judge found that the Guardian Newspaper has very wide circulation and the offensive article affected the plaintiffs’ church drastically since he lost most of his congregation after the publication. The judge also found that the appellants remained defiant, showing no sign of remorse. The Court of Appeal agreed with the learned trial Judge. I am unable to disagree with the findings of both courts.

On the value of the local currency, it is a well known fact that the Naira is no longer stable. It swings around with every gust that blows. To my mind the sum of N500, 000.00 seems fair and just in the circumstances of this case.

Finally I must observe that this court rarely interferes with concurrent findings of fact by the court below except where there has been an exceptional circumstance such as:

(a) The findings of fact are perverse

(b) The findings are not supported by evidence

(c) There was miscarriage of justice or violation of some principle of law or procedure. See Balogun v. Adejobi 1995 2 NWLR pt.376 p.131

Okonkwo v. Okonkwo 1998 10 NWLR pt.571 p.554.

The findings of the trial court that the article written by the 2nd appellant and published by the 1st appellant in its Sunday edition of 3rd December, 1995 is offensive and libelous of the plaintiff, a fact affirmed by the Court of Appeal to my mind is correct.

In Uor v. Loko 1988 2 NWLR pt.77 p.430

Karibi-Whyte JSC (as he then was) in his concurring judgment stated.

“An appeal is against the judgment of the court below and a challenge of its correctness on the grounds of law, mixed law and fact or on fact simpliciter as the case may be. Before a pronouncement can be properly made on the judgment on any of these grounds, appellant must show in the judgment sought to be reversed that the views expressed by the court below is wrong.”

Learned counsel for the appellants has been unable to show that the views expressed by the court below are wrong. The finding of the trial court that the contents of paragraph 6 of the Statement of claim are defamatory of the plaintiff and the defence of fair comment cannot be sustained because where statements complained of are untrue and defamatory and made maliciously I fail to see how a Newspapers that decides to publish the untrue statements would expect to succeed on a defence of fair comment.

In the light of my findings this court would not disturb those concurrent findings of fact by the courts below. Accordingly the appeal lacks merit and it is hereby dismissed. A cost of this appeal is assessed as N50,000 in favour of the respondent.

---

SC.234/2005