Insider Communications Limited V. Citi Bank & Anor (2009)
LawGlobal-Hub Lead Judgment Report
JAMILU YAMMAMA TUKUR, J.C.A.
This is an appeal against the judgment of the High Court of Justice Lagos State Coram A.A. Oyebanji J (Mrs) delivered on 4th February, 2014, wherein the Court gave judgment in favour of the 1st Respondent.
The material facts leading to this appeal are that the Appellant, a Newspaper/Publishing company conducted an interview with the 2nd Respondent, titled ?How my Bank Defrauded Me? and published same in its weekly issue of 3rd July, 2006. During the course of the interview, the 2nd Respondent made certain allegations against the 1st Respondent, his Bank, with regards to certain activities concerning the importation of Buses.
The 1st Respondent acting on the belief that the contents of the interview, particularly the assertions concerning its conduct in the importation process, constitutes defamation, particularly libel, instituted an action in the lower Court against the Appellant and the 2nd Defendant via an Amended Writ of Summons dated 25th October, 2010, seeking the following reliefs:
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a. The sum of 100,000,000.00 being general, exemplary and aggravated damages for libel and malicious/injurious falsehood contained in the INSIDER Weekly Magazine/Publication of 3rd July, 226 titled ?How my Bank defrauded me.?
b. An Order of perpetual injunction restraining the Defendants, their servants, agents, officers, privies or otherwise from further writing, printing, publishing/circulating or causing to be written, printed or published the aforesaid defamatory words or similar words defamatory of the Claimant.
In response, the Appellant filed requisite processes and upon a full trial, the trial Court in a judgment dated 4th February, 2014, found that the words complained of were defamatory, rejected the defences of fair comment and justification, awarded the sum of N10,000,000.00 (Ten Million Naira Only) to the 1st Respondent and granted the prayer for perpetual injunction.
Dissatisfied with the above, the Appellant appealed to this Court vide a Notice of Appeal dated 29th April, 2014, with 11 grounds of appeal.
The Appellant?s Brief of Argument settled by Edwin Anikwem Esq., of Edwin Anikwem & Co., is dated 2nd February, and filed on 6th February, 2018.
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Appellant?s counsel formulated four issues for determination to wit:
1. Whether the lower Court was right when it held that the 1st Respondent as Claimant established defamation. (Grounds 1, 2, 3 and 11)
2. Whether the learned trial judge was right when it held that the publication referred to the 2nd Respondent after the Original Claimant was substituted? (Grounds 4,5)
3. Was the defence of qualified privilege not available to the appellant having regard to the circumstances of the case. (Grounds 6, 7, 8 and 9)
4. Whether the award of damages was not excessive in the circumstances. (Ground 10)
Neither of the Respondents filed a Brief, thus I will endeavour to determine this appeal on the issues raised by the Appellant.
ISSUE ONE:
WHETHER THE LOWER COURT WAS RIGHT WHEN IT HELD THAT THE 1ST RESPONDENT AS CLAIMANT ESTABLISHED DEFAMATION. (GROUNDS 1, 2, 3 AND 11)
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Learned counsel for the Appellant argued that the 1st Respondent did not prove that the words complained of were defamatory in nature, as the only evidence led in support was the testimony of the 1st Respondent?s sole witness, which did not show that people to which the words were
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allegedly published regarded the words as defamatory in nature or injurious to the character of the Appellant. He further argued that the 1st Respondent ought to have called witnesses who actually read the publication of the words in question and interpreted them to be defamatory in nature.
He relied on the following cases:
Sketch Publishing Co v. Ajagbemokeferi (1989) 2 SC (Pt. II) pg.73, 84, 95-96; NTA v. Babatope (1996) 4 NWLR (Pt. 440); Ugbomor v. Hadomeh (1997) 9 NWLR (Pt. 520) 307; Amalgamated Press Ltd v. Allen (1961) 1 SCNLR 370; Omo-Agege v. Oghojafor (2011) 3 NWLR (Pt.1234) 341; and Anate v. Sanusi (2001) 11 NWLR (Pt. 725) 542 at 555 paras D-E.
Learned counsel also argued that the 1st Respondent did not prove the publication of the alleged defamatory words, because it did not establish by evidence that the words actually got to the realm of cognition of the general members of the public, and that the admission of publication by the Appellant is not enough to discharge the burden of proving publication.
He relied on the following:
NTA v. Babatope (supra) p.88 pars E-G; Ajakaiye v. Okandeji (1972) 1-2 SC pg 65; and Anate v. Sanusi (supra) 558-559, paras H-F.
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RESOLUTION
Due to the incalculable value of a good name, the law frowns at the publication of materials that are false, and capable of impugning the standing or reputation of a person in the minds of right-thinking members of the society. This is the chief aim for the tort of libel, which was defined by the Apex Court in the case of CHILKIED SECURITY SERVICES & DOG FARMS LTD v. SCHLUMBERGER (NIG) LTD & ANOR (2018) LPELR-44391(SC)(P. 15, Paras. A-G) Per KEKERE-EKUN, J.S.C. thus:
“Defamation, as a tort, whether as libel or slander, has been judicially defined to consist of the publication to a third person or persons of any words or matter which tend to lower the person defamed in the estimation of right thinking members of society generally or to cut him off from society or to expose him to hatred, contempt, opprobrium or ridicule or to injure his reputation in his office, trade or profession or to injure his financial credit. See: NITEL Vs. Tugbiyele (2005) ALL FWLR (PT. 246) 357; Edem vs. Orpheo Nig. Ltd. (2003) 7 SC 92 @ 101. Every person has a right to the protection of his good name, reputation and the
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estimation in which he stands in the society. Therefore, whoever publishes anything injurious to that good name or reputation commits the tort of libel. Slander consists of a false and defamatory statement (of a transient nature) made or conveyed by spoken words, looks, signs and gestures or in some other non-permanent form. Libel, on the other hand is required to be in some permanent form.”
See: EZEGBO & ANOR v. IGBOKWE (2016) LPELR-40784 (CA); AKPAN v. FIRST BANK (2018) LPELR-44340(CA); and PUNCH (NIG) LTD v. OVBEREDJO (2018) LPELR-44540(CA).
Appellant?s counsel has attacked the finding of the trial Court under this issue firstly on the grounds that the 1st Respondent failed to prove that the words which were alleged to be libellous are defamatory in nature. This raises the question as to what a claimant in a libel suit ought to show in order to establish that the words in question are defamatory and whether the 1st Respondent discharged this duty.
This Court in the case of LABATI V. BADMUS (2006) LPELR-5854 (CA) (Pp. 20-21, Paras.F-B), Per AUGIE, J.C.A., gave a pointer to the resolution of the above by quoting with approval the dictum of
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the Supreme Court in the case of Dumbo V. Idugboe (1983) 1 SCNLR 29, thus:
“In determining whether the words are capable of defamatory meaning, the Judge will construe the words according to the fair and natural meaning which would be given them by reasonable persons of ordinary intelligence, and will not consider what persons setting themselves to work to deduce some unusual meanings might succeed in extracting from them. The test according to Lard Selbourne “is whether under the circumstances in which the writing was published, reasonable men to whom the publication was made would be likely to understand them in a libelous sense.”
This Court reiterated the above in the case of MBANG v. GUARDIAN NEWSPAPERS LTD & ANOR (2010) LPELR-11838 (CA) (P. 24, paras. B-D), Per OREDOLA, J.C.A.,thus:
“The test for determining whether the publication complained of constitutes libel is not the subjective test of the plaintiff himself or even that of his witness. It does not rest on their personal imagination, figuration or belief; it is rather the meaning a reasonable man will attach to the publication. It will therefore not be of any moment that the
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plaintiff has stretched the publication beyond its ordinary or reasonable meaning so as to ascribe a defamatory meaning to it.”
See: NTA v. A. I. C. LTD (2018) LPELR-45320(CA); OKPANUM v. ODINAMBA & ORS (2017) LPELR-42678 (CA); and OGBODU v. SSAUTHRIAI & ORS (2017) LPELR-43413 (CA).
From the above, what becomes clear is that in order for words to be construed as constituting libel or not, the objective, reasonable man?s test must be applied to the publication as a whole, with the particular words given their ordinary meaning. A calm look at the words alleged to be libellous in nature reveal that prima facie, they are capable of demeaning the 1st Respondent?s reputation, as they posit that the 1st Respondent was actively involved in defrauding the Appellant of millions of dollars.
?Notwithstanding the above, the crucial question at this juncture is whether the words alleged to be libellous in nature were actually published or whether publication was proven at the lower Court, especially in light of the fact that the Appellant?s second attack on the judgment is based on the proposition that the 1st Respondent did not prove
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publication, that neither the fact that the words were printed in a magazine nor the fact that the Appellant admitted publication would prove publication.
There is no gainsaying the fact that publication is a crucial element of the tort of libel and it consists of transmitting the words written or printed to third parties. As a general rule, a party alleging publication has to show whom the words were transmitted to.
The Supreme Court in the case of EKONG V. OTOP & ORS (2014) LPELR-23022(SC) (P. 20, paras. B-G) Per OKORO, J.S.C., stated the ingredients which a person claiming under the tort of libel must establish thus:
“This Court has laid down in quite a number of decisions certain conditions which must be satisfied before defamation can be proved. In an action for libel, the plaintiff must prove the following: 1. That the defendant published in a permanent form a statement; 2. That the statement referred to the plaintiff; 3. That the statement conveys defamatory meaning to those to whom it was published; and 4. That the statement was defamatory of the plaintiff in the sense that: (a) It lowered him in the estimation of right-thinking
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members of the society; or (b) It exposed him to hatred, ridicule or contempt; or (c) It injured his reputation in his office, trade or profession; or (d) It injured his financial credit. See DALUMO V. SKETCH PUBLICATION COMPANY LTD (1972) 5 SC 308, ONU V. AGBESE (1985) 1 NWLR (pt. 4) 704, SKETCH V. AJAGBEMOKEFERI (supra).”
This Court in the case of EKANEM v. AKPAN & ORS (2018) LPELR-44036 (CA) (Pp. 8-9, Paras. C-A), Per Saulawa, J.C.A., reiterated the above thus:
“It is the cardinal principle of libel in law, that there must be a publication of the libelous matter to a third party other than the person libeled. The reason being that a person’s reputation is not merely based on the good opinion he has of himself but the estimation in which other people hold him. See NSIRIM VS. NSIRIM [1990] 3 NWLR [Pt. 138] 285, @ 299 paragraph H per Belgore, JSC [as he then was]. Fundamentally, it is the reduction of the alleged libelous matter to writing and it is delivery to a third person other than the person injuriously affected thereby that is publication. As such, the name of the person to whom delivery of the libelous document was made must be pleaded.
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See NSIRIM VS. NSIRIM [supra] @ 297 – 298 per Obaseki, JSC.” Per SAULAWA, J.C.A. (Pp. 8-9, Paras. C-A)
See: OKPANUM v. ODINAMBA & ORS(2017) LPELR-42678(CA); OKECHUKWU v. UBA PLC & ANOR (2017) LPELR-43100(CA); and OGBODU v. SSAUTHRIAI & ORS (2017) LPELR-43413(CA).
The rationale behind the above is that a person?s reputation cannot be harmed or lowered in the minds of right thinking members of society if the right thinking members did not access the defamatory materials. Holding that the mere fact allegedly defamatory words were printed amounts to the legal standard of publication for the purpose of libel, would amount to speculation.
The implication of the above to the facts of this appeal is that contrary to the principles stated in EKONG v. OTOP & ORS (2014) LPELR-23022(SC) (supra), the 1st Respondent failed to establish that the statement in question actually got to the cognition of persons it was allegedly published to; that it did convey defamatory meaning to those to whom it was published; or that the statement was defamatory of the Appellant in the sense that it lowered him in the estimation of right-thinking members of
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the society; or it injured his reputation in his office, trade or profession; or injured his financial credit. At best it can be said that the 1st Respondent asserted these things, but asserting a thing is not the same as proving it.
Appellant?s counsel has also drawn the attention of this Court to the Supreme Court?s decision in Ajakaiye v. Okandeji (supra) which establishes the principle that admission of publication is not enough, and I have no choice but to be bound by the decision, in line with the hallowed principle of stare decisis.
?A calm look at the decision of the trial Court, particularly at page 661, reveals that the trial Court based its decision that there was publication on the grounds that the 1st Respondent led evidence, including the oral testimony of its witness to the effect that the libellous statement was actually published. The records however do not reveal that publication was proved by this witness. The witness did not testify that he received or read the printed material in question, rather he posited that others read and understood it to be libellous.
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I agree with Appellant?s submission that the failure to present at least one of the people who putatively read the printed material, dealt a death blow to the 1st Respondent?s allegation of libel as far as publication is concerned.
This Court in the case of AMUZIE v. ASONYE (2010) LPELR-4758(CA), (P.24, Para.G-H) per Ogunwumiju, J.C.A., stated the consequences of failure to prove publication thus:
“An action for libel must fail if publication of the defamatory matter is not proved. This proof must be given by admissible evidence as it is the publication that donates a cause of action in libel. The material part of the cause of action is not the writing, but the publication of libel.?
This issue is consequently resolved in favour of the Appellant.
ISSUE TWO:
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN IT HELD THAT THE PUBLICATION REFERRED TO THE 2ND RESPONDENT AFTER THE ORIGINAL CLAIMANT WAS SUBSTITUTED? (GROUNDS 4, 5)
Learned counsel for the Appellant argued that the person allegedly defamed by the libellous publication was Nigerian International Bank, which is different and distinct from Citi Bank, who was given judgment by the lower Court.
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Counsel also argued that a cause of action based on defamation is personal to a Claimant and upon the death of such Claimant, the cause of action expires. He submitted that the fact that the entity against whom the alleged libellous words were directed is no longer in the companies registry, a situation which is akin to death, hence the cause of action no longer exists.
Re: Aluko (No.1) (1992) 2 NWLR (Pt. 223) pg 341 pp 346, paras B-D; Re: Aluko (No.2) (1992) 2 NWLR (Pt. 223) 376 at 379 para. C; and Esenowo v. Ukpong (1999) 6 NWLR (Pt. 608) 611 at 617.
RESOLUTION
The law on substitution of parties is clear and to the effect that same ought to be done only in deserving cases, and upon the furnishing to the Court, cogent reasons for the substitution. The Apex Court in the case of IN RE: APEH & ORS v. PDP & ORS (2017) LPELR-42035 (SC) (Pp. 35-36, Paras. G-F) Per MUHAMMAD, J.S.C., gave an apt exposition of the principles of law applicable to substitution of parties thus:
“I think it is apt for me at this stage, to remind my noble lords, in a concise manner the general principles of the law relating to substitution. When one puts something by way of replacement or
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change of another, whether a person or a thing, that would amount to substitution. The law may permit a person to substitute another in a law suit (including appeal) where there is a genuine case of death, bankruptcy, assignment, transmission or devolution of interest or liability of a party to the suit or appeal, where the need to substitute is obvious in fact and in law. Where a party is dead, he cannot physically take part any more in the proceedings. His position must necessarily be taken over by the beneficiary who inherits him and who subsequently inherits the litigation. Otherwise, the action for or against the deceased will abate unless appropriate steps are taken to substitute a living person for the deceased. See Eyesan v. Sanusi (1984) 4 SC 115 at p. 137. Bankruptcy of one of the parties to a suit while the suit is pending, may also abate except where a trustee(s) takes over. Comprehensive rules are made by the various (now unified) High Court Rules which take care of such circumstances.”
See: HADEJIA v. LADAN & ORS(2017) LPELR-43368(CA); and ATANDAIRO v. DODO & ORS (2018) LPELR-45139(CA).
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The pertinent question here however is whether there was substitution of parties properly so called at the lower Court and the answer is no. The entity previously known as NIB is the same as Citi Bank. There has been no exchange, neither has there been a replacement of one party for another on account of disablement or any other disqualifying factor.
See:ECO BANK NIGERIA PLC V. METU & ORS (2012) LPELR-20846(CA).
This issue is consequently resolved against the Appellant.
ISSUE THREE:
WAS THE DEFENCE OF QUALIFIED PRIVILEGE NOT AVAILABLE TO THE APPELLANT HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE. (GROUNDS 6, 7, 8 AND 9)
Learned counsel for the Appellant argued that the defence of qualified privilege and fair comment ought to apply and protect the Appellant from the consequences of the words published, in the event that the words published were found to constitute libel.
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Counsel sought to justify the applicability of fair comment on the grounds that what the law requires for that defence to operate is proof of the basic fact of the existence of the allegation and not the veracity of the allegations. A condition, which counsel argued had been fulfilled because the
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requisite basic facts was proven by the Appellant based on: a. Exhibit C, Charge upon which the 1st Respondent was taken to Court; Exhibit C1, letter from the Director of Public Prosecution of the Federal Ministry of Justice dated 28th October, 2001, refusing to withdraw the fiat granted for the prosecution of the 1st Respondent in Exhibit C; Exhibit C2, letter similar to the aforementioned, dated June 9, 2009; the fact that the 1st Respondent?s witness under cross examination agreed that the words published had to do with the involvement of the 1st Respondent in the clearing of Appellant?s goods; and investigation of the Appellant based on the publication and complaint, which culminated in an indictment of the 1st Respondent by the Police in its progress report.
He cited the case ofLondon Artists Limted v. Littler CA Organisation (1969) 2 QB 375 at 391; Tarka v. Sketch Publishing Co. Ltd (Nig Law of Libel and The Press) pg C448, pp C450-451 lines F-H, C454 lines F-H; Cunningham-Howie v. Bimbleby (1951) ICB 360.
He submitted that qualified privilege also ought to apply as the words published, were about the conduct of an
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institution, which was a matter of public interest as it touches on the complaint of a citizen on how his Bank treated him.
He relied on: Tarka v. Sketch Publishing Co. Ltd (supra) at C455-C456; Akomolafe v. Guardian Press Ltd (2010) 3 NWLR (Pt.1181) 338 at 359; and NTA v. Babatope (supra) at pg. 93 paras A-C, 93-94 paras F-C, 96-97 paras G-B.
RESOLUTION
It is trite law that even in circumstances where the tort of libel has been established against a person, such a person may rely on certain defences, which if he successfully proves will result in his escaping liability. The Appellant herein sought to rely on fair comment and qualified privilege.
The defence of fair comment, which is usually available to a Journalist, arises in situations where an opinion or commentary has been made concerning a person, based on certain basic facts which are true. In expressing this opinion, the author is permitted to use defamatory words in certain circumstances.
The Supreme Court in the celebrated case of THE SKETCH PUBLISHING COMPANY LTD. & ANOR V. AJAGBEMOKEFERI (1989) LPELR-3207 (SC) (Pp. 53-54, paras.C-D) PER OPUTA, J.S.C., put it thus:
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“What is it that fair comment means? It means this – and I prefer to put it in words which are not my own; I refer to the famous judgment of Lord Esher M. R. in Merivale v. Carson: ‘Every latitude, said Lord Esher, ‘must be given to opinion and to prejudice, and then an ordinary set of men with ordinary judgment must say (not whether they agree with it, but) whether any fair man would have made such a comment: Mere exaggeration, or even gross exaggeration, would not make the comment unfair. However wrong the opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within the prescribed limit. The question which the jury must consider is this – would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said
See: EKONG v. OTOP & ORS (2014) LPELR-23022 (SC); VANGUARD MEDIA LIMITED & ORS V. OLAFISOYE (2011) LPELR-8938 (CA); and WESTERN PUBLISHING COMPANY LTD & ANOR v. FAYEMI (2015) LPELR-24735 (CA).
Qualified privilege on the other hand is a defence available to persons, including Journalists, which operate to the effect that in circumstances
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where the maker of a report has a duty or interest in making such a report and the person receiving such report has an interest in receiving same, even when reports contain defamatory statements, the maker of the report would not be liable for defamation, if he had adhered to certain principles/conditions, mainly that the report was fair, accurate, and without malice.
In EMEAGWARA vs. STAR PRINTING AND PUBLISHING CO. LTD (2000) 5 SCNJ 115 AT 185 the apex Court held thus:
?For a report to be privileged, it must be fair and accurate. What is stated must be substantial and fair comment of what occurred to earn a defense of privilege.”
See:NNAJI & ORS v. IWUEKE (2018) LPELR-44043 (CA); ONYENWE & ANOR v. ANAEJIONU (2014) LPELR-22495 (CA); and NWAENANG V. NDARAKE & ORS (2013) LPELR-20720 (CA).
The stumbling block to my determination one way or the other whether the above defences apply to the Appellant?s appeal is my earlier finding to the effect that libel was not established against the Appellant at trial. The only logical and legal fallout of this is that the defences and their likelihood of success, must remain fallow, as there is nothing to defend against.
?In light of the above, this issue is resolved against the Appellant.
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ISSUE FOUR:
WHETHER THE AWARD OF DAMAGES WAS NOT EXCESSIVE IN THE CIRCUMSTANCES. (GROUND 10)
Learned counsel for the Appellant argued that the award of N10,000,000.00 (Ten Million Naira) by the trial Court is excessive as there was no evidence of the spread of 1st Respondent in the states of the Federation and the actual damage suffered by the 1st Respondent?s business was not established.
RESOLUTION:
Damages in cases of libel are awarded in response to the damage to the reputation of the Claimant, to assuage some of the loss suffered thereby and is not meant to be punitive. Factors such as (i) The conduct of the plaintiff; (ii) His position and standing; (iii) The nature of the libel; (iv) The mode and extent of publication; (v) Conduct of the Defendant, (vi) Refusal to retract or render apology to the plaintiff
See: Mamman v. Salaudeen (2005) 1-2 SC (Pt.II) 46, (2005) 18 NWLR (958) 478; ODUWOLE & ORS. v. WEST (2010) LPELR-2263(SC); AFRICAN INTERNATIONAL BANK LTD & ORS V. ASAOLU (2005) LPELR-11340(CA).<br< p=””
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Award of damages is a matter of discretion, which this Court is loath to interfere with, except in certain circumstances such as where the trial Court acted upon a misconception of facts, wrong principles of law or where the award is either so ridiculously too low or too high.
In the case of AHMED & ORS V. CBN (2012) LPELR-9341 (SC), per Adekeye, J.S.C., the Apex Court stated the applicable principles of law with regards to award of damages and interference by an Appellate Court thus:
“Award of damages is an exercise of discretion by the trial Court. An appellate Court will not interfere with an award of damages by a trial Court unless it is made under certain peculiar circumstances which include – 1. Where the exercise of discretion by the trial Court is perverse. 2. Where the Court acted under wrong principles of law or 3. Where the Court acted in disregard of applicable principles or 4. Where the Court acted in misapprehension of facts or 5. Where the Court took into consideration irrelevant matters and disregarded relevant matters whilst considering its award or 6. Where injustice will result if the appellant’s Court does not act or 7. Where the
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amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of the damages. Zik’s Press Ltd. v. Ikoku (1951) 13 WACA pg. 188, Idahosa v. Oronsaye (1959) SCNLR pg.407. Bola v. Bankole (1986) 3 NWLR (pt.27) pg.141. Elf v. Sillo (1994) 6 NWLR (pt.350) pg.258.”
See: VIRGIN ATLANTIC AIRWAYS v. AMARAN (2018) LPELR-44785 (CA); ENTERPRISE BANK PLC v. DAN DOLLARS OIL (NIGERIA) LTD(2015) LPELR-24510(CA); and EFCC v. INUWA & ANOR (2014) LPELR-23597(CA).
Applying the above to the facts of this appeal, there is no gainsaying the fact that the learned trial Judge wrongly awarded damages, as the decision upon which the award is hinged is erroneous.
This issue is accordingly resolved in favour of the Appellant.
The consequence of my finding that the crucial element of libel, that is publication, was not properly established by the 1st Respondent at trial, means that the Appeal has merit and is hereby allowed.
The decision of the lower Court in Suit No: LD/1365/06 delivered on 4th February, 2014 is hereby set aside.
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The Appellant is awarded N500,000 costs against the 1st Respondent.
Other Citations: (2009)LCN/3137(CA)
