Hon. Justice Aloysius O.h. Ukachukwu V. Chief Hope Uzodinma & Anor (2007)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

Three appeals in this matter were filed and later consolidated by leave of this court on 26/4/2006. In the first appeal, the defendants (hereto as the respondents in the first appeal) appealed on one ground against the ruling of the said Duruoha F. Igwe (J), delivered on 31/5/2000. This was a complaint on the admissibility of exhibit ‘A’ – a petition addressed to the then Military Administrator of Imo State by the appellants.

Appellants in this appeal raised a lone issue for determination thus:

“Whether the learned trial Judge rightly admitted exhibit ‘A’ in view of the fact that it failed to satisfy the formal requirements governing admissibility of documentary evidence under the Evidence Act (hereinafter called “the Act.”)

The second appeal filed by the plaintiff containing three grounds was against part of the judgment of Hon. Justice Florence Duruoha-Igwe sitting at High Court of Mgbidi, Imo State relating to the award of N56, 000.00 as damages to the appellant against the respondents for libel. The judgment was delivered on 26/11/2002.

The appellant raised two issues for determination in his brief of argument as follows:

(a) Whether the learned trial Judge was right that the appellant was not entitled to the award of exemplary damages.

(b) Given the facts of this case whether the learned trial Judge was right in law in awarding the sum of N56, 000.00 as damages to the appellant against the respondent for libel.

On the 24/2/2004, the respondents’ counsel on their behalf filed respondents’ brief of argument and presented two issues for determination as follows:

“3.1 Whether the learned trial Judge was right in holding that the plaintiff/appellant is not entitled to exemplary damages.

3.2 Whether this Honourable Court should interfere with the award of N56, 000.00 (Fifty six thousand Naira) awarded by the trial court as general damages.”

Then the third appeal was the cross-appeal against the said judgment of the lower court delivered on 20/11/2002 in suit No. HOW /15/99. Cross-appellants after obtaining an order of this court for extension of time cross-appealed on 10/11/2004 on three grounds.

They raised three issues in their brief of argument as follows:

“(a) Whether the cross-respondent pleaded publication of exhibit A (the petition) by the cross-appellants to the then Military Administrator of Imo State or any other person.

(b) Whether the learned trial Judge was right when she held that the cross-respondent proved that the cross-appellant published exhibit’ A’ to the then Military Administrator of Imo State or any other person.”

Now for the consideration of the interlocutory appeal.

In this appeal against the ruling of the lower court the complaint of the appellant was against the admissibility of exhibit ‘A’. It is contended that the respondent failed to satisfy the formal requirement governing the admissibility of documentary evidence under the Evidence Act, 1990. Reference was made to the cases of Okonji v. Njokanma (1999) 12 SC (Pt. 11) p. 150 at 156-157; (1999) 14 NWLR (Pt.638) 250. It is submitted by the learned counsel for the appellant that one of the requirements under the Act is that for secondary evidence of a document to be given; proper foundation must be laid for reception of such evidence. Learned counsel referred to section 97 of the Act and the case of Unic Plc v. Orelusi (1999) 1 FHCLR 499. It is contended that the document was tendered and admitted at the lower court as a photocopy of the petition.

Learned counsel for the respondents argued in their brief that he exhibited exhibit ‘A’ as a copy of the defamatory document on investigation given to him by the police and that it was pleaded in paragraph 16 of their statement of claim. That the content of exhibit ‘A’ is the same as the content of exhibit ‘F’ tendered by the office of the Attorney-General of Imo State.

The document for which admissibility is being contended is the appellant’s petition titled, “Abuse of office and instigation of Anarchy: Justice Aloysius O. H. Ukachukwu”. It was during the trial for libel, the respondent who sued the appellant, sought to tender a photocopy of the said petition. The appellant’s counsel objected to the tendering of the photocopy since no foundation was laid for it. The learned trial Judge in the course of the proceedings made a finding that a copy of the petition which the cross-respondent eventually tendered was a copy of what was given to him by the Police in the course of their investigation. He said on page 53 of the record thus:

“After listening carefully to the submissions made by counsel on both sides, I am of the view that the said petition or letter is the crux of this action as pleaded by the plaintiffs. Para. 16 of the statement of claim stated that plaintiffs were invited by the police for interrogations concerning the said letter/petition. It is the law and common practice that police must make known to you or show you the subject matter of the complaint or charge against you before calling on you to make a statement. I believe that was the case in the present matter. It cannot be any different. That the police gave him a copy of the letter is evidence in proof of plaintiffs’ para 16 of their statement of claim. The question (sic) will go in.”

It was in line with the above ruling that the petition was received in evidence as exhibit ‘A’. The cross-respondent subpoenaed the office of the Attorney-General to tender a copy of the exhibit’ A’ which was endorsed to him by the Military Administrator. A copy of the petition endorsed to the Attorney-General of Imo State was tendered through PW3 as exhibit ‘F.

It is the contention of the appellant that section 97 of the Evidence Act was not complied with and therefore exhibit ‘A’ was inadmissible in evidence.

Section 97(1) (a) and (c) of the Act provides as follows:

“97(1). Secondary evidence may be given of existence, condition or contents of a document in the following cases:

(b) when the original is shown or appears to be in the possession or power –

(i) Of the person against whom the document is sought to be proved, or

(ii) Of any person legally bound to produce it, and when after the notice mentioned in section 98 of this Act such person does not produce it.”

Under section 98 of the Act, secondary evidence of the contents of a document is not admissible unless notice to produce has been previously given to the other party in whose possession or powers the documents. In the instant case exhibit ‘A’ was pleaded in paragraph 16 of the statement of claim of the cross-respondent and relied upon. See page 11 lines 19-29 of the record of appeal. Against the averments in paragraph 16 of the respondent’s statement of claim, appellants in paragraph 12(d) and (e) of their statement of defence put up feeble traverse to the cross-respondent’s averments as follows:

“(a) The defendants deny there was publication of the matter complained of and shall at the trial put the plaintiff to the strictest proof thereof.

(b) There was no publication. The defendants shall contend that the plaintiffs were not defamed as there was no publication …”

The appellant admitted the existence and authorship of exhibit ‘A’. It is trite that pleadings can never serve as substitute for evidence required to prove the facts unless such facts are admitted by the other party. Pleadings, on the other hand, must serve as a notice to the other party to alert him on what the party filing it intends to rely on to prove his case or to defend a cause. In the instant case both parties by their pleadings admitted the existence of exhibit ‘A’ in question. In the circumstance, I am of the view that the learned trial Judge rightly admitted exhibit ‘A’. See Nwanji v. Coastal Service (Nig.) Ltd. (2004) All FWLR 1150 at 1162; (2004) 11 NWLR (Pt.885) 552 Appellant has not shown good reason why this appeal should succeed. It is therefore dismissed and I shall proceed to consider the remaining two appeals.

Procedurally, the substantive appeal ought to have been considered first. That makes it most convenient and neater. However, close study of the complaint of the cross-appellants is all about whether the cross-respondent pleaded at all exhibit’ A’ and whether there was actual publication of the said exhibit ‘A’ to the then Military Administrator of Imo State or any other person. The substantive appeal is all about the appellant’s right or entitlement to the award of exemplary damages and whether the lower court was right to award only N56, 000.00 as damages to the appellant therein. For this reason, I shall first of all consider the respondents’ grievances in their cross-appeal. I have held earlier, in the interlocutory appeal that exhibit ‘A’ is admissible in evidence. The first question in this second appeal is whether cross-respondent pleaded publication of exhibit ‘A’, that is the petition by the cross-appellants to the Military Administrator or any other person.

Learned counsel for the cross-appellants submitted that the name of the person to whom delivery of a libelous document was made was not pleaded. Reliance was placed on the case of Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285 at 288; Fmvehinmi v. Akilu (1994) 6 NWLR (Pt. 351) 387 at 424.

In the second issue learned counsel has contended no civil action can be maintained for libel or slander unless the words complained of have been published. He submitted that in order to constitute publication, the matter must be published to, (communicated to) a third party. That is to say, to at least one person other than the plaintiff. He relied on Gatley on Libel and Slander, 8th Edition page 526, para. 1288; Nsirim v. Nsirim (supra) and Anate v. Sanusi (2001) 27 WRN 26 at 321; (2001) 11 NWLR (Pt.725) 542. It is conceded that the only evidence of publication came from the cross-respondent on pages 52 and 63 of the records. It is however submitted that these pieces of evidence are not admissible in that, apart from not being pleaded, they only constitute hearsay evidence. That the respondent did not see the appellant deliver exhibit ‘A’ to any person, but said he was told by the police that the appellant published exhibit ‘A’.

On this issue the contention of the cross-respondent is that there was publication to the Military Administrator of Imo State who upon its receipt wrote letters to the Attorney-General of Imo State and Commissioner of Police, Imo State to investigate the content of exhibit ‘A’. It is contended that the facts of publication were pleaded in paragraphs 3, 12, 13, and 16 of the statement of claim and that the findings of the lower court that there was publication were in line with the pleadings and evidence of the cross-respondent.

The parties are all in agreement that on 12/1/99 the cross-appellant wrote a petition titled “Abuse of office and Instigation of anarchy: Justice Aloysius O. H. Ukachukwu”, and that it was addressed to the then Military Administrator of Imo State and to the Chief of General Staff, Abuja. Cross-appellants have contended that there is no publication of the petition to the above named personalities or to any person. The facts of publication were placed in paragraphs 3, 12, 13, and 16 of the statement of claim. The paragraphs are hereby reproduced:

“3. On or about the 12/1/99, the defendants through a petition addressed to the Military Administrator of Imo State with reference No. OUT/IM/MILAD/99/1 and copied to the Chief of General Staff, Presidential Villa, Abuja willfully, falsely and maliciously wrote/published of and concerning the plaintiffs and titled “ABUSE OF

OFFICE AND INSTIGATION OF ANARCHY: JUSTICE ALOYSIUS O. H. UKACHUKWU. Inter alia the following underlined defamatory words:-

“Justice A. O. A. Ukachukwu has been identified to be the architect of law suits against the Imo State Government and the Omuma community as he vowed to use his position in the judiciary to impose a Traditional Ruler on Omuma community.

Recent armed robberies where some of the robbers were caught and now in police custody have confirmed that Anthony N. Ukachukwu trained the armed robbers to intimidate the Omuma people into selecting him as the Traditional Ruler… Police report are rife that the personal house of Justice Ukachukwu in Omuma serves as the warehouse where robbers store their loot. We wish to assume that Justice Ukachukwu will influence the Police to drop charges against the robbers to save his family’s name”.

12. Because of these suits instituted by 2nd plaintiff against Chief Boniface N. Agwigbo, Oru-East Local Government and the Military Administrator Imo State, suit No. HOW/143m/98 and Suit No. HOW/254/98 instituted against Dr. Anthony C. Onwumereobi who is the crony of the 1st defendant, the defendants decided out of spite and morbid hatred against the members of family of the plaintiffs to make false and malicious publications against the plaintiffs particularly and 1st plaintiff who is a High Court Judge in an attempt to defame him as a person not worthy of the exalted position of a Judge.

13. It was in an attempt to run down the personalities and reputations of the plaintiffs that the defendants falsely and maliciously published the said defamation concerning the plaintiffs.

16. After the said publication, the Military Administrator of Imo State wrote a letter to the Attorney-General and Commissioner of Justice to take action on the matter. The Commissioner of Police was also written by the Military Administrator endorsing the publication of the defendants against the plaintiffs. As a result of these, the plaintiffs have been invited by the police on several occasions for interrogations in respect of the criminal allegations made by the defendants against the plaintiffs.

These letters are hereby pleaded and will be relied upon at the hearing. It shall be contended at the hearing that these continuous invitation of the plaintiffs to the police at Police Headquarters, Owerri has actually reduced the plaintiffs in the estimation of their friends and right thinking members of the society who now think that the plaintiffs are robbers who encourage the commission of violent crimes in concert in Imo State and also at Omuma. Because of this many of the friends of the plaintiffs and members of their community avoid them.

Some of them don’t even talk to them all in reaction to the false criminal allegations of the defendants.”

As to whether cross-respondent pleaded publication, the learned trial Judge in her judgment made the following findings:

“From the pleadings and evidence of the plaintiff, the Military Administrator did receive exhibit ‘A’ – the libelous matter and caused same to be sent and delivered to the Commissioner of Police and the Attorney-General who in turn took necessary actions. In his evidence-in- chief, plaintiff said on 12/1/99 defendants wrote and forwarded a petition against me and 2nd plaintiff to the Military Administrator. A copy of the petition was forwarded to Chief of General Staff, Abuja. A copy of the petition was given to me by the Police.”

The Military Administrator to have acted on exhibit ‘A’ must have received it. The Police to have invited the plaintiff must have received exhibit ‘A’ sent to them by the Military Administrator.

For Attorney-General to have minute on exhibit ‘A’ must have received exhibit ‘A’ from the Military Administrator. I can conveniently say without fear of being challenged that Military Administrator is a third party and that the publication of exhibit A was made to him by the defendants who wrote and forwarded same to him.”

For the purpose of founding an action for libel, by publication of a libelous matter is meant the making known of the defamatory matter to some person other than the person of whom it is written. See Nsirim v. Nsirim (supra) pp. 297-298. If the writing of a libel is to the person or party libeled that does not constitute publication for the purpose of a civil action.

In the instant case, the lower court findings from the above statement were in line with the pleadings and evidence of the cross-respondent.

It is noted that the cross-appellants in their first ground of their notice of appeal complained that the learned trial Judge erred in law by failing to make a finding on the issue raised by them that the cross-respondent did not plead publication to a third party.

It has been shown however that there were abundant findings by the lower court on the issues of pleading on publication. Based on the foregoing I must answer issue one as formulated in the affirmative.

On issue two in his paragraph 16 of the statement of claim reproduced above, the cross-respondent copiously pleaded exhibit ‘A as addressed to the Military Administrator of Imo State, and endorsed to the Attorney-General of the State and the Commissioner of Police, Imo State. I have dealt adequately with this issue in the interlocutory appeal. Needless being unnecessarily repetitive. I have observed that a copy of the petition endorsed to the Attorney-General of Imo State was tendered through PW3 Mbadinuju Anthony Osidinma as exhibit ‘F’. Evidence of PW3 goes to support the fact that there was publication to the Attorney-General for which the learned trial Judge agreed and held that exhibit ‘A’ was indeed published to a third party.

The cross-appellants did not specifically traverse the fact that the Police received exhibit ‘A’ from the Military Administrator for their investigation. The law is that specific averment required specific traverse and what is not traversed is deemed admitted. An evasive C traverse is a wrong method of meeting issues raised. See Odogwu v. Odogwu (1990) 4 NWLR (Pt. 143) 224 at 233 and also Ozowala v. Ezelheshie (1991) 1 NWLR (Pt. 170) 699.

In the instant case the photocopy exhibit ‘A’ was pleaded by the cross-appellant and admitted by the cross-respondent. The document is therefore admissible in evidence. In the case of Nwanji v. Coastal Service (Nig.) Ltd. (supra). Uwaifo, JSC explained the Supreme Court decision with regard to the issue as follows:

“A photocopy of an agreement duly pleaded by a suitor and admitted in the defendant’s pleading is admissible in evidence. In the instant case a photocopy of the agreement between the appellant and respondent dated 1st July, 1981 which was duly pleaded in paragraph 4 of the statement of claim and admitted in paragraphs 2 and 3 of the statement of defence in which the appellant averred that the agreement pleaded therein was scrupulously complied with is admissible as the appellant did not suggest that the contents were different from those of the original. It was up to the appellant to tender the original to contradict the photocopy if he felt the photocopy was at variance with the original.”

The learned trial Judge was therefore right in admitting exhibit ‘A’ in evidence.

The cross-appellant had argued in his issue two that the evidence of publication was based on hearsay evidence and was not pleaded. His main reason for saying so was that the cross-respondent did not deliver exhibit ‘A’ to any person. I agree with the learned counsel for the cross-respondent that this contention is absurd. Cross-appellant admitted the authorship of exhibit’ A’. They did not deny that the petition was written to the Military Administrator. They did not deny that the content of exhibit ‘A’ does not concern the cross-respondent. It is not the law that cross-respondent must see when exhibit ‘A’ was sent to a third party so as to constitute publication. The issue is that the person, to whom it was addressed, acted upon it by endorsing it to the Attorney-General and Commissioner of Police. As already noticed exhibit ‘A’ was amply pleaded in paras. 3, 12, and 16 of the statement of claim reproduced above. The Military Administrator could not have received the petition in the custody of the cross-appellant, if the cross-appellants did not publish it. I am of the view that the cross-respondent pleaded and proved the publication of exhibit ‘A’.

Main or Substantive Appeal

The complaint of the appellant (who was the plaintiff at trial) in this main appeal is against the part of the judgment of Duruoha-Igwe (J), relating to award of damages to the appellant.

The facts of the case have been sufficiently noted in the earlier two appeals. The three grounds of appeal without particulars read as follows:

“(1) The learned trial Judge erred in law when he held that the plaintiff/appellant is not entitled to the award of exemplary damages and that this case does not fall within the category for the award of exemplary damages and/or that there was no platform for such award.

(2) The learned trial Judge erred in law when inspite of his findings of facts that the defendants/respondents defamed the plaintiff/appellant through their false and malicious publication to the Military Administrator of Imo State concerning the plaintiff awarded a paltry sum of N56, 000.00 (Fifty six thousand Naira) as damages to the plaintiff/appellant.

(3) The learned trial Judge erred in law when he failed to give adequate consideration to the basis even for the award of general damages.”

Two issues were raised for determination in this appeal as follows:

“(a) Whether the learned trial Judge was right that the appellant was not entitled to the award of exemplary damage.

(b) Given the facts of the case, whether the learned trial Judge was right in law in awarding the sum of N56, 000.00 as damages to the appellant against the respondents for libel.”

The respondents, on the other hand, formulated the following two issues for determination:

“3.1 Whether the learned trial Judge was right in holding that the plaintiff/appellant is not entitled to exemplary damages.

3.2 Whether this Honourable Court should interfere with the award of N56, 000.00 (Fifty six thousand Naira) awarded by the trial court as general damages.”

I am of the view that the two issues identified by the respondents are more succinctly framed than issues one and two of the appellants, in their brief. However, the issues are understandably similar.

Learned counsel for the appellant, J. C. Uwazuruonye, Esq., arguing the first issue, submitted that any person whose reputation is unduly besmirched by another person without due cause or justification, the person so defamed is entitled to payment or damages. He relied on the case of Din v. African Newspapers of Nig. Ltd. (1990) 3 NWLR (Pt. 139) 392. That in exhibit ‘A’ the appellant was called an armed robbery kingpin, and a Judge not worthy of his name and his exalted office but one who encourages the filing and institution of frivolous suits against the Government of Imo State. It is contended that the appellant averred in his statement of claim these facts but the respondents admitted writing the defamatory petition, exhibit ‘A’ but denied that he published it to anyone and did not lead any evidence at the trial to justify the defamatory words by only resting their case on the evidence of the appellant. On the award of damages learned counsel submitted that in an action for damages for libel what should deny a plaintiff the award of damages is if he has a blur in his character and does not possess the reputation he claims to have. He relied on the cases of Din v. African Newspapers of Nig. Ltd. (supra) and W Mipherson v. Daniels (1829) 1 QB 263.

Relying and applying these cases, learned counsel for the appellant submitted that there was no evidence either orally or documentary on the part of the respondents which cast a blur on the character and reputation of the appellant as to deny the appellant entitlement to exemplary damages.

On the question of motive and ill-will behind the publication learned counsel referring to Clerk and Lindsell on Tort page 21 and the case of U.B.N. Ltd. v. Oredein (1992) 6 NWLR (Pt. 247) 355, submitted that respondents published exhibit’ A’ out of personal spite, malice and ill-will with a view to gaining some advantages from the Government of Imo State.

It is finally submitted that exhibit ‘A’ was published with the intention of removing the appellant as a High Court Judge and he deserves being awarded exemplary damages.

On the second issue, on award of the sum of N56, 000.00 as damages to the appellant, learned counsel for the appellant having referred to the findings of the trial Judge, submitted that in libel cases the law presumes that the publisher of a defamatory document, without lawful excuse is actuated by malice. However, if the publisher defendant has lawful excuse for making the publication, as for example, if he is able to show that the communication’ or ‘publication’ is made on a privileged occasion, thereby rebutting the presumption of law, the plaintiff has to prove malice as a matter of fact by adducing legal evidence to establish the existence of malice. Reliance was placed on the case of Adeniji v. Fetuga (1996) 5 NWLR (Pt. 150) 375 at 388 paras. C-D. Learned counsel submitted that in the case at hand the respondents did not have any legal defence nor excuse for their defamatory publication against the appellant who was a serving High Court Judge. The respondents did not adduce evidence to prove the contents of defamatory words. He disagreed with the basis for the award of a paltry sum of only N56, 000.00 as damages when respondents did not show justification for reduction of the award of such sum as claimed by the appellant.

It is conceded that this court under section 16 of the Court of Appeal Act can look into the award of damages made by the court below either to reduce the award of damages or increase the award of damages depending on the facts and circumstances of the case. Reference was made to the cases of Overseas Construction Ltd. “Creek Ent. Ltd. (1985) 3 NWLR (Pt. 13) 407 and Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623. It is argued that the instant case falls within the category of cases which will attract the attention of this court to increase the award of damages in favour of the appellant. On the question of assessment of damages, learned counsel for the appellant submitted that the learned trial Judge failed to advert her mind to the principle enunciated at paragraph 1358 page 558 of Gatley on Libel and Slander and the case of Ejabulor v. Osha (1990) 5 NWLR (Pt. 148) 1 at 16.

Learned counsel for the respondent on the first issue as whether the appellant is entitled to exemplary damages, submitted that the Supreme Court per Eso, JSC in Williams v. Daily Times (1990) 1 NWLR (Pt. 124) 1 SC at pages 30-31 stated three cases in which a plaintiff is entitled to exemplary damages. These are:

(i) Where a statute prescribes them;

(ii) Where there are oppressive, arbitrary, unconstitutional actions by servants or agents of the government, and

(iii) Where the defendant’s act which has been held to be tortuous was done with a guilty knowledge, the motives being that the chances of economic advantage outweigh the chances of economic or even (perhaps) physical penalty.

He submitted that the above decision was followed by the Court of Appeal in Ogoja L.G.C. v. Offohoche (1996) 7 NWLR (Pt. 458) 48 at 91; U.B.N. Ltd v. Oredein (1992) 6 NWLR (Pt. 247) 355 at 379. It is the learned counsel further submission that applying the above law to the facts of this case, the appellant is not entitled to exemplary damages as there is no evidence that the respondents would profit economically from the publication of exhibit ‘A’ neither did the appellant show that he suffered any injury by virtue of the publication of exhibit ‘A’.

It is also submitted that since cases in which exemplary damages may be awarded have been settled by the Supreme Court in Williams v. Daily Times (supra), there is no need for this court to create any precedent and therefore the reasons for the claim of exemplary damages on the grounds that the petition was “malicious and wicked” should not be considered.

On the second issue of award of N56, 000.00 by the trial court to the appellant, learned counsel for the respondent submitted that the factors or principles that a court should take into consideration in the assessment of damages in libel have been enunciated in Ejahulor v. Osha (supra); UBN Ltd. v. Oredein (supra) and Uko v. Mbaba (2002) 14 WRN 23. It is submitted that the learned trial Judge used the guidelines in those cases before awarding the sum of N56, 000.00 as damages against the respondents.

Above are the lines of contentions, arguments and submissions of the learned counsel for the parties. Let me first deal with the issue of award of exemplary damages. The law of defamation in this country has not changed. A person is entitled to his reputation and good name. If he is unduly besmirched without good cause or justification, the defamed person is entitled to payment of damages. See Din v. African Newspapers of Nigeria Ltd. (1990) 3 NWLR (Pt. 139) 392 at 410. In exhibit ‘A’ the appellant was called an “Armed Robbery Kingpin, Judge not worthy of his name and his exalted office, a judge who encourages the filing and institution of frivolous suits against the Government of Imo State.” In his statement of claim appellant averred and in his defence before the court stated and proved the facts that he was a High Court Judge of the Imo Judiciary. He denied the allegation and those wrong doings. Respondents admitted writing exhibit ‘A’ but denied the publication of it to anyone but failed to justify the defamatory words. It is no longer in doubt that this is a defamatory publication. It is libelous. The reputation of the appellant is attacked. It is a blur, a stigma and a disparagement on the character of a Judge. The effect of it is that his close members of family, friends and associates developed some suspicious and some apprehension in the life style and integrity of the appellant. His close associates would try to reduce links with him while other members of the public would look upon him as a societal misfit and shun him. In the circumstance, the learned trial Judge it would appear to me clearly supported the award of exemplary damages when in her judgment she said:

“I am in no doubt whatsoever that the meaning ascribed by the plaintiff to the word complained of and as contained in exhibit A is the fair and ordinary meaning of the word which any reasonable person of ordinary intelligence will give them. Defendant did not call evidence to dispute this meaning. Having rested their case on that of the plaintiff, they have accepted the meaning ascribed to it by the plaintiff and which I have found to be the ordinary and fair meaning. Nothing could therefore be more defamatory than saying that a serving High Court Judge is a habitual and vexatious litigant and also an armed robbery kingpin who encourages the commission of armed robbery and provides home or facilities where goods stolen or robbed were stored by armed robbers.”

I am not in agreement with the learned trial Judge that there is no platform on which she could stand to award exemplary damages. It is grievous to be defamed out of personal spite, ill-will or hatred, giving a proper construction of exhibit ‘A’. To refer to a Judge as an armed robber, such a serious capital offence which attracts public execution, respondents intended to gain some advantage of getting the appellant’s removal from office as a High Court Judge of a State by the then Military Administrator. He was the backbone of his brother (2nd plaintiff) who died during the course of the proceedings in the Ezeship dispute of Omuma town.

In my humble view, the learned trial Judge was wrong in holding that the appellant was not entitled to the award of exemplary damages.

Now the issue of award of damages of N56, 000.00. The assessment of damages in a successful libel action is not dependent on any established legal rules. It depends upon the peculiar circumstances of the case. It is instructive that in coming to the conclusion in the award of N56, 000.00 damages to the appellant, learned trial Judge relied very much on the answer of the appellant to a question at the trial during the cross-examination admitting that he is still a High Court Judge and has not been removed. It would appear that the basis for the award of this sum as damages was that the publication did not achieve the desired effect as envisaged by the respondents. Learned trial Judge, with due respect failed to realise the damaging effect the publication had on the appellant as a respected Judge of the State High Court Judiciary. He was invited by the Police and interrogated as a “common criminal” in respect of the defamatory and offensive document (exhibit ‘A’).

Once the learned trial Judge came to the conclusion that the appellant was defamed and that exhibit ‘A’ was highly defamatory of the appellant including the findings of facts made against the respondents, he ought to have awarded exemplary damages. The trial Judge should have taken into consideration a number of factors, some of them include station of life of the appellant, which includes his position and status in society and the level of damage done to the appellant by the libelous publication. Here the publication is most damaging and malicious. I have also considered the conduct of the respondents in the whole circumstances. They have not shown any apologetic or remorseful conduct. They did not make any retraction.

The object of awarding damages is to compensate the plaintiff for any loss or injury he has suffered or sustained.

Exemplary damages convey a punitive element. Its object is to punish the defendant. In deserving cases, the court of law will award exemplary damages, and this is one of such cases. It is clear that it has been shown that the respondents have calculated what they would gain or profit from the defamation. Here there are legal and factual basis for awarding exemplary damages.

After a very careful consideration of the facts and circumstances of this case. I allow the substantive appeal; dismiss the respondents’ appeal against the ruling of the lower court on admissibility of exhibit ‘A’ in evidence and their cross-appeal on the publication and proof of exhibit ‘A’ thereto. The substantive appeal however, has merit, it succeeds and it is allowed. I set aside part of the judgment of the court below on the award of N56, 000.00 (Fifty six thousand Naira only) to the Appellant. The appellant is entitled to N2, 000, 000.00 (Two million Naira only) exemplary damages. I assess and award costs of N5, 000.00 in favour of the appellant only in the substantive appeal.

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Other Citations: (2007)LCN/2292(CA)