Maurice Dumbo & Ors V Chief Stephen Idugboe (1983)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C

The main issue raised in this appeal by the appellants is whether the words “It was resolved that Chief Stephen Idugboe, a member of the Board of Directors be removed from office and he (Chief Stephen Idugboe) is hereby removed as a member of the Board of Directors of the Oilfield Supply Centre Limited, Warri with immediate effect” are capable of bearing defamatory meaning. The subsidiary issue raised is whether words actually in the circumstances in which they were published bore defamatory meaning.

In his ‘Notice to vary’ the damages awarded by the Federal Court of Appeal given pursuant to Order 7 rule 13(1), Supreme Court Rules 1977, the respondent who was plaintiff at the trial court raised the issue of the quantum of damages awarded contending in his brief that there are justifiable grounds to vary the amount awarded upwards to N50,000.00 (fifty thousand Naira).

The action that led to the proceedings which went on appeal first to the Federal Court of Appeal holding at Benin and now secondly from the Federal Court of Appeal to this Court, was filed in the High Court of Justice of Bendel State, Warri on the 30th day of September, 1976. The offending publication is fully set out on paragraph 13 of the amended statement of claim dated 20th June, 1977 which reads:

“On the 22nd September, 1976, the defendants published or caused to be published in Warri and other places on page 19 of the issue of the Nigerian Tide dated 22nd September, 1976, and falsely and maliciously wrote, printed and published or caused to be written, printed and published of and concerning the plaintiff the following words:

“OILFIELD SUPPLY CENTRE LTD. OGUNU, WARRI, WARRI, NIGERIA, P.M.B. 1132

ATTENTION

At an extra-ordinary meeting of the shareholders of Oilfield Supply Centre Ltd. held at the Company’s premises in Warri today, 10th September, 1976, it was resolved that Chief Stephen Idugboe a member of the Board of Directors be removed from office and he (Chief Stephen Idugboe) is hereby removed as a member of the Board of Directors of Oilfield Supply Centte Limited, Warri with immediate effect.

Any person who, from September 10, this year transacts business with him for and on behalf of the company does so at his/her risk.

Signed

Joseph L. Johnson,

General Manager,

Chief Executive.”

An innuendo was also alleged in the amended statement of claim in addition to the ordinary and natural meaning of the words in paragraphs 14-18 of the amended statement of claim as follows:

“14. By the said words in their natural and ordinary meaning, alternatively by reason of the facts hereinafter set out, the defendants meant and were understood to mean that the plaintiff is:

(i) guilty of misconduct

(ii) guilty of fraud

(iii) not competent and not fit and proper person to take part in the affairs of a company.

PARTICULARS OF FACTS AND MATTERS IN SUPPORT

OF INNUENDO

(1) Persons are not “removed” from positions or business in which they are at the head or principal shareholders unless for serious misconduct or for unfitness or unsuitability.

(2) The warning to persons not to transact business with the plaintiff for and on behalf of Oilfield Supply Centre Limited depicts him a swindler who would fraudulently convert other people’s money to his on use or that the plaintiff is a thief. The plaintiff did not commit any of the offences.

15. By reason of the said false and malicious publication, the plaintiff as a businessman and director of many companies including:

(i) Electro Engineering Company Limited

(ii) Idugboe and Sons Limited

(iii) Cameron (Nigeria) Limited

(iv) Nigerian Casino Limited

(v) Steelbull International Agencies Limited

(vi) Stephen Idugboe and Sons Ltd.

has been injured in his credit and reputation and has been brought into public scandal, ridicule, odium and contempt and has suffered damages.

16. The defendants knew or ought to know that the plaintiff was not removed as a director of the Oilfield Supply Centre Limited and yet they made the false and malicious publication just to embarrass the plaintiff and to bring him into public scandal, odium and contempt and the plaintiff has been greatly injured in the way of his business or occupation. The plaintiff will rely on series of telegrams and letters sent to him from various sources where he had business connections.
17. The publication was made in utmost bad faith and for improper motives and was calculated and intended to destroy the image of the plaintiff in business circles both inside and outside Nigeria. The defendants were actuated by actual malice.
18. PARTICULARS OF DAMAGE

In consequence of the above publication, Messrs. Construction Modulada Intemationales S.A. Madrid, Spain, (C.M.I.) had backed out of the negotiation with the plaintiff for a business contract worth over a million Naira.

19. Wherefore the plaintiff claims from the defendants jointly and severally the sum of N1, 000,000.00 (one million Naira) being aggravated and exemplary damages for libel.”

Pleadings were filed, served and exchanged and the issues joined came up for hearing before Ohiwerei, J. The plaintiff gave evidence and called two witnesses. The defence elected not to adduce any oral evidence.

After hearing the addresses of counsel for the parties, learned trial judge dismissed the claim of the plaintiff/respondent in a considered judgment. Before dismissing the claim the learned trial judge observed and held inter alia:

“The plaintiff had not shown that the publication is defamatory in its natural and ordinary meaning and has not given any evidence of extrin sic facts to justify paragraph 14 (supra) of the amended statement of claim. See Philip Ezekwe v. E. T. Otomewo & Ors. (1957) WRNLR 130 . . . From the evidence before me, I hold that the plaintiff has proved no facts or circumstances which make the words complained of capable of defamatory meaning ascribed to them by him.”

Aggrieved by this decision, the plaintiff appealed successfully to the Federal Court of Appeal. In the course of the judgment delivered by Agbaje, JCA and concurred in by Omo-Eboh and Okagbue, JJCA, Agbaje, JCA observed, found and concluded as follows:

“There is no doubt that this means that Chief Stephen Idugboe was removed from office against his will. To my mind, what an ordinary man without special knowledge and not avid for scandal will infer from this publication is that Chief Stephen Idugboe has been dismissed from his office as a member of the Board of Directors and of course the ordinary man too would say that no one is dismissed from office unless that one was guilty of some wrong doing or some misconduct. Again, the ordinary man would know that the Board of Directors manages the affairs of the company. He would also say that no one would dismiss a director from the board unless he was no longer competent or fit to manage the affairs of the company. So I come to the conclusion that the words complained of were capable of the defamatory meaning attributed to them by the appellant in his statement of claim. So I hold that in their ordinary and natural meaning, the words complained of were capable of a defamatory meaning. I therefore hold that the learned trial judge was in error in holding that the words complained of were not in their ordinary and natural meaning capable of a defamatory meaning.”

Continuing, the learned Justice of the Court of Appeal, said:

“Since the issue whether the words complained of did in fact convey a defamatory meaning is one for a jury and as a judge [(sitting as judge and jury)] the responsibility for this decision was upon him. . . It must also be borne in mind that the rule is well settled that the true intention of any document whether it be contract, will, or libel is that which is apparent from the natural and ordinary interpretation of the written words and this when applied to the description of an individual means the interpretation that would reasonably be put on those words by persons who know the plaintiff and the circumstances. See Cassidy v. Daily Mirror Newspapers (1929) 2 K.B. 331 and 340. . .

As was said by Tindall, C.J. in Cook v. Ward (1830) 4 Moo & P. at page 111:

‘There is a wide distinction between a man’s telling a ludicrous story of himself, in the private circle of his friends and acquaintances, and the publication of it in the world at large, through the medium of a newspaper.’

I have held while deciding the point whether the publication complained of was capable of a defamatory meaning that the words “removed from the office of director” used in connection with the plaintiff meant that he was dismissed from the office of director. I am reinforced in this conviction by the decision in Morris v. Sandess Universe Products (1954) 1 All ER 47. I have also held that the publication complained of was capable of the meanings ascribed to them by the plaintiff in his statement of claim. Guided by the authorities I have cited as to how a jury should be directed as to whether the words were in fact understood in a libellous sense, I am satisfied, after giving the matter the best consideration I can, that the publication complained of would tend to lower the appellant in the estimation of right thinking members of the society in general. With this finding of mine, I must hold and I therefore hold that the words complained of in this action were in fact defamatory of the plaintiff. I will now consider the finding of the learned trial judge on the issue of justification and fair comment.”

After referring to and quoting paragraphs 1289 and 1290 of Gatley on Libel and Slander 7th Edition at pages 529 and 530, the learned Justice continued:

“I am satisfied that the submissions of counsel in this regard are well founded. So, I am satisfied that learned trial judge was in error in holding that exhibit ‘L’, the minutes of the extra-ordinary general meeting of the Oilfield Supply Centre Ltd. held on Friday, 10th September, 1976 containing the resolution removing the appellant from office of a director of the Company was sufficient evidence in proof of the justification of the libel complained of in this case . . . The sting of the publication complained of in this case is in the use of the words “removed from the office of a director with immediate effect” with reference to the appellant. The words were not used while commenting on some other facts, they were in fact not comments but the facts themselves. So I do not see any place for a plea of fair comment in this case . . . .In my view, the learned trial judge was clearly in error in referring to the documents not incorporated in the publication complained of in this case in determining whether or not the publication would tend to convey defamatory meaning to the persons to whom they were addressed. It is clear law that statement of a fact or a question of opinion relied on as defamatory must be something contained in the article in question. And in this case it cannot even be said that extrinsic evidence was necessary to impart a defamatory meaning to the publication. See Morgan v. Odhams Press Ltd. & Another (1971) 2 All ER. 1156. The conclusion I reach therefore is that the defendants are liable to the plaintiff for defamation. I now go to the issue of damages . . . . There was evidence from the appellant showing that the newspaper had a very wide publication. There was no suggestion from the respondent that the newspaper had only a limited circulation. So there is no basis for holding anything contrary to the appellant’s evidence before the court. This being so, I find no justification for the following view expressed by the learned trial judge which were severely attacked by the appellant before us . . .

‘I have carefully examined exhibits ‘G’, ‘H’ and ‘J’-the telegrams which the plaintiff claims were sent to him by two of his friends and the chairman, Chambers of Commerce, Benin City, as a result of the publication complained of . . . The inference I draw from this is that it is either that the plaintiff sent the telegrams himself or that he was an active party to their despatch from Benin City and the purpose of being to make use of them in this case . . .

As for exhibits ‘E’ and ‘F’, they are certainly faked up documents. I do not believe that the Nigerian Tide of 22nd September, 1976 ever got to Spain. . .’

These findings were certainly unwarranted having regard to the evidence before him.”

The learned Justice of the Federal Court of Appeal then set out the principles to be followed in assessing damages as set out in paragraph 1358 at page 556 of Gatley on Libel and Slander 7th Edition, assessed the damages the plaintiff was entitled to at N3, 500.00, and awarded the said amount as damages suffered by the plaintiff.

Aggrieved by the said decision of the Federal Court of Appeal, the 3rd defendant has now appealed to this Court. Eight grounds of appeal were set out in the appellants’ notice of appeal. These were with the leave of this Court substituted with 8 new grounds of appeal. The new grounds gave particulars of the errors complained of whereas the grounds set out in the notice of appeal failed to give particulars of errors.

The plaintiff, pursuant to Order 7 rule 13 of the Supreme Court Rules 1977 gave notice to the appellant of his intention to contend on the 3 grounds stated in the said notice that the damages awarded be increased or varied upwards to N50, 000.00.

In his brief of argument, three primary questions and one secondary question were posed by counsel for the appellant as follows:

“Primary Questions

(a) Has the plaintiff made out any case on the facts and law to justify the Federal Court of Appeal decision to reverse the findings and judgment of the trial court In other words, are the words complained of defamatory of the plaintiff or libellous in law and in fact

(b) Are the learned Justices of the Federal Court of Appeal right on the facts and law in substituting their understanding and construction of the words and meaning they conveyed for those of the trial judge as to the natural and ordinary meaning of the words

(c) Are the learned Justices of the Federal Court of Appeal right in law in substituting their opinion and position for those of the trial judge who functioned as judge and jury whereas this was not a case of evidence of facts not properly or fully evaluated by trial judge”

The subsidiary question raised by counsel for the appellant in his brief reads:

“Has a trial judge no justification in making observations which though not relevant to his decision, are relevant to the administration of justice”

The above main secondary question has two subsidiaries, namely:

(a) Are facts proved only by direct evidence or can they be proved by inference from facts proved

(b) would it be wrong for a trial judge to refer to document not incorporated in a publication complained of as libellous in determining whether or not the publication would tend to convey defamatory meaning to the persons to whom they were addressed when such documents are not in evidence

Two main questions were raised at the hearing of this appeal by the appellants’ counsel. They are:

(1) were the words in the publication capable of a defamatory meaning

(2) were they in fact defamatory of the plaintiff

The issue raised in the plaintiffs/respondent’s Notice was whether the damages awarded were adequate to compensate the plaintiff for the injury to his reputation caused by the publication.

There was raised by the Court the question whether under the 1977 Supreme Court Rules now in force, the plaintiffs/respondent’s Notice was competent to raise the issue of inadequacy of the damages awarded.

Turning to the appeal, it will be necessary to set out in full the 8 grounds of appeal dealt with by counsel for the appellant in his brief of argument. They are:

“1. The learned Justices of Appeal erred in law when they constituted themselves into judge and jury and dealt with the appeal as though it was a trial at first instance and thereby came to the conclusion that the words complained of by the plaintiff/appellant/respondent were in their natural and ordinary meaning defamatory of him when there was clearly no basis either in law or on the facts for coming to that conclusion.

PARTICULARS AND NATURE OF ERROR

(i) The Justices of Appeal, in deciding that the words complained of were capable of a defamatory meaning ought as a rule to have shown how the learned trial judge’s own decision that the words were not so capable, was unreasonable or erroneous in law.

(ii) the learned Justices of Appeal assumed the role of jury and made its own finding of fact, whereas a jury’s finding of fact or the finding of a trial judge acting as a jury cannot be set aside, unless it can be shown to be manifestly perverse or unreasonable.

2. The learned judges of appeal erred in law when they went outside the issue canvassed in the court below and on appeal, engaged in an exercise of discovery of the meaning of the words complained of, when such meaning as the learned judges of appeal gave to the

said words complained of was never contemplated by the plaintiff at any time as evidence by his amended statement of claim.

PARTICULARS AND NATURE OF ERROR

The learned judges of appeal deviated from the trite principle that parties must be found by their pleadings.

3. The learned judges of appeal erred in law when they purporting to be guided by a series of pronouncements by English judges in case law, regretfully failed to apply accurately the very guidelines in those cases which they claimed to have relied on in coming to their decision.

PARTICULARS AND NATURE OF ERROR

(i) The dicta of Abott C.J. and Bayly J. in Goldstein v. Foss and Another 6 R & C. 157 reported in English Reports K.B. 409 which were fully quoted by the learned judges of appeal do not support their conclusions when viewed in the light of the facts of the case before the court.

(ii) The test of the Reasonable man given in Gatley on Libel and Slander 7th Edition paragraph 130 page 71 cited by the learned Justices of Appeal was not applied in proof that a reasonable man would have held the words complained of as possessing the sting alleged by the plaintiff-respondent.

4. The judges of appeal erred in law when they held “There is no doubt that this means that Chief Stephen Idugboe was removed from office against his will. To my mind what an ordinary man without special knowledge not avid for scandal will infer from this publication is that Chief Stephen Idugboe has been dismissed from his office as a member of the board of directors and of course the ordinary man too would say that no one is dismissed from office unless that one was guilty of some wrong or misconduct. Again, the ordinary man would know that the board of directors manages the affairs of the company.”

PARTICULARS AND NATURE OF ERROR

The learned judges of appeal in the above passage gave no clue as to the test they applied in identifying the ordinary man and as to what facts they found their belief that the ordinary man of their creation would have understood “remove” as meaning “dismissed” and would have conceived all the ideas implied to him.

5. The learned judges of appeal erred in law when they held that the word “removed” will be understood by the ordinary man, that is to say, in its ordinary and natural sense as meaning “dismissed” whereas in the course of address in the Federal Court of Appeal it became necessary to refer to two English dictionaries for guidance as to the meaning of the word “removed” (which was in fact the only issue canvassed in the court) and the word was given as possessing more than one meaning of which the word “dismissed” is one.

PARTICULARS AND NATURE OF ERROR

The learned judges of appeal acted contrary to law in picking and choosing the meaning that suited the case of the plaintiff without suggesting why that meaning applied to the words complained of exclusively.

6. The learned judges of appeal erred in law in holding that the pleas of qualified privilege, fair comment and justification did not avail the defendants when there was ample evidence in support of those

PARTICULARS AND NATURE OF ERROR

(i) The learned judges of appeal failed to advert their minds to the law that a plea of justification simpliciter imports a plea of fair comment.

(ii) The learned judges of appear failed to appreciate also that the plea, to wit”. . . the defendants were under a moral and social duty to publish the said words to the public who had like duty and an interest to receive them” as pleaded in paragraph 9 of the 1st and 2nd defendant’s further amended statement of defence (see page 73 lines 20-22 of Records) is a plea of qualified privilege at common law which also imparts a plea of fair comment.

(iii) The learned judges of appeal failed to consider that the appellant as General Manager and Chief Executive of the company had a moral and social duty to publish the words complained of to the public who had like duty to receive them.

7. The learned judges of appeal erred in law when they held the decisions in Beswick v. Smith (108) Times LR 67 (CA) and Capital and Counties Bank v. Henty (1880) 5 CPD. 514; (1882) AC 745 are not in point in this case in that the words complained of are not exactly the same as those in the case under consideration whereas in law a judge can apply a case by analogy and arrive at identical conclusion by relying on guidelines presented by the case.

PARTICULARS AND NATURE OF ERROR

The learned judges of appeal failed to note that legal principles, more than anything else, are what matter in case law and a case can be applied by analogy and relied upon as offering guidelines without necessarily being on all fours with the case in hand.

8. The learned judges of appeal erred in law and on (the) facts when they found no justification for the following views expressed by the trial judge.

“I cannot end this judgment without reference to the fraudulent aspect of this case. I have carefully examined exhibits ‘G’, ‘H’ and ‘J’-the telegrams which the plaintiff claims were sent to him by two of his friends, and the Chairman, Chamber of Commerce, Benin City as a result of the publication complained of and have noted that exhibit ‘G’ was sent at 8.27 a.m. at Benin City on 30/9/76 and that it is numbered BC4/29. It is quite clear from this documentary evidence that the three telegrams were sent about the same time, all on 30/9/76 and that they are serially numbered. The inference I draw from this is that it is either that the plaintiff sent the telegrams himself or that he was an active party to their despatch from Benin City and the purpose being to make use of them in this case. I have no doubt in my mind that exhibit ‘H’ alleged to be sent by the Chairman, Bendel State Chamber of Commerce, Benin City was unauthorised and that the said chairman knew nothing about it. As for exhibits ‘E’ and ‘F’ they are certainly faked up documents, I do not believe that the Nigerian Tide of 22nd September, 1976 ever got to Spain. If it did and exhibit ‘F dated 30th September, 1976 was issued as a result of it, there should have been evidence of how exhibits ‘E’ and ‘F were despatched to Warri. If they were posted, the plaintiff should have attached the envelopes to the letter so that the postage

stamp and post office date stamps on them be examined. There is no evidence before me that the Nigerian Tide circulated in Spain and I do not believe it does.”

PARTICULARS AND NATURE OF ERROR

The learned judges of appeal at page 159 lines 3-5 said that there was no suggestion from the respondents (now 3 defendant/appellant and the other two defendants) that the newspaper (The Nigerian Tide) had only a limited publication. So, there is no basis for holding anything contrary to the appellant’s (now respondent’s) evidence. Then at page 160 line 5 to line 8, they said further

“the finding were certainly unwarranted having regard to the evidence before him. There was certainly no evidence before him tending to show that the Nigerian Tide could not have been in circulation outside Nigeria.”

By the foregoing pronouncements, the learned judges of appeal appear, by implication, to be propounding two erroneous principles:

(a) Since the defendants did not call evidence at the trial, the plaintiff is discharged from the burden of proof which law ordinarily reposes on him as plaintiff, and facts cannot be proved otherwise.

(b) A judge should not be heard to make pronouncements on matters not relevant to his decision of the case in hand.”

The respondent as earlier indicated above filed a notice of intention to contend that the decision of the Federal Court of Appeal be varied by increasing the damages awarded to N50,000.00 and the grounds on which the notice of contention was filed read:

“ERROR IN LAW

The Federal Court of Appeal erred in law in awarding the plaintiff/appellant the sum of only N3, 500.00 as damages for the said libel when the Federal Court of Appeal should have awarded higher damages on the following grounds:

(i) there was evidence that the publication of the libel to the whole world in a newspaper having a wide circulation;

(ii) there was evidence that the plaintiff was a substantial business man, director of several companies and that the publication tended to damage him as such businessman and multiple director;

(iii) there was evidence that the publication of the libel by the plaintiff’s co-directors was a result of events which reflected ill-will between the plaintiff and his co-directors.”

The facts of this case are not in dispute. More so as no evidence other than documentary exhibits admitted by consent was adduced by the defence. The plaintiff’s evidence and that of his two witnesses therefore stands uncontradicted. The plaintiff was the chairman of the board of directors of the Oilfield Supply Centre Ltd. while the 3rd defendant/ appellant was the Managing Director. These two together with three others, Arif Roz, Evans Enwerem, and Solomon Asemota were the only directors and shareholders of the company. The plaintiff however owned the substantial part of the shares of the company. Arising from suspicion of fraud, and stealing of the company’s funds in 1976, the plaintiff made a report to the police who then initiated criminal proceedings against Arif Roz, Evans Enwerem and the 3rd defendant/appellant. Almost at the same time, the plaintiff filed a petition in the Federal High Court to wind up the company. The 3rd defendant/appellant then circulated a notice of extra-ordinary general meeting of the shareholders scheduled for 10th September, 1976 the only item on the agenda being to remove the plaintiff from the board of directors. On receipt of this notice, the plaintiff filed an action in the Federal High Court seeking an order of injunction to restrain the shareholders from removing him. The criminal charge against Arif Roz, Evans Enwerem and 3rd defendant/appellant was fixed for hearing on 10th September, 1976. On that day, they attended court to answer the criminal charge and so did not attend the extra-ordinary shareholders’ meeting. None of the shareholders attended the extra-ordinary meeting but the proxies of Arif Roz, Evans Enwerem and the 3rd defendant met and passed a resolution removing the plaintiff as a member of the board of directors. This was also while the suit in the Federal High Court was pending. Then on the 22nd September, 1976, the 3rd defendant/appellant caused to be published in the Nigerian Tide a daily newspaper published by the 2nd defendant company, the notice of removal now the subject matter of the libel complained of. The plaintiff gave evidence and called 2 witnesses who also testified. None of the defendants testified but by consent of counsel for the parties, the defence counsel tendered documentary exhibits-exhibits ‘K’, Memorandum and Articles of Association of the Oilfield Supply Centre Ltd.-‘L’, Minutes of the meeting of the Oilfield Supply Centre Ltd. of 10th September, 1976-‘M’, judgment of Federal Revenue Court in suit No. FRC/W/7/76, ‘N’-motion and affidavit filed in Warn. Federal Revenue Court suit No. FRC/W/17M/76.

It is appropriate to deal with the appellant’s contention first. Grounds 1, 2, 3, 4 and 5 of the grounds of appeal can be taken together as they complain about the role of the Federal Court of Appeal in hearing and determining appeals to it in libel cases. It would appear that the appellant’s counsel overlooked the powers and duties of the Federal Court of Appeal. The general powers of the Federal Court of Appeal in determining appeals in civil cases are clearly set out in section 16 of the Federal Court of Appeal Act 1976 No. 43 of 1976. It reads:

“The Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal and may amend any defect or error in the record of appeal and may direct the court below to inquire into and certify its findings on any question which the court of appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant an injunction which the court below is authorised to make or grant and may direct any necessary enquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the court of appeal as court of first instance and may rehear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in the case of an appeal from the court below in that court’s appellate jurisdiction, order the case to be reheard by a court of competent jurisdiction.”

The functions of the judge and jury in libel cases are so well settled to evoke unnecessary debate or expatiation. The jury system does not exist now in any part of Nigeria and the learned trial judges of the High Court in Nigeria (all professional lawyers) perform the functions of judge and jury.

In libel cases, it is well settled that the question whether words which are complained of are capable of conveying a defamatory meaning is a question of law and is therefore one calling for the decision of the court or judge. See Morgan v. Odham Press (1970) 1 WLR 820 (CA); (1971) 1 WLR 1239 (HL). If the words are so capable, then it is a question for the jury whether the words do in fact convey a defamatory meaning. See Jones v. Skelton (1963) 1 WLR at p.1376 (PC); Capital and Counties Bank v. Henty (1882) 7 App. Cas 741. If a publication, either standing alone, or taken in connection with other circumstances, is reasonably capable of a libellous construction, it is for the jury and not for the judge to say whether a libellous construction should be put on it. [per Lord Penzance in Capital and Counties Bank v. Henty (1882) 7 App. Cas at p. 762. See also the speech of Lord Blackburn, . . . at p.777]. The plaintiff cannot succeed unless he gets both the court and the jury to decide for him. [Per Lord Blackburn in Capital and Counties Bank v. Henry (supra) at p.776].

In this country, since the trial judge or court performs the function of judge and jury the appeal court (Federal Court of Appeal) hearing an appeal from the decision of a judge of the High Court, by virtue of the powers conferred upon it by section 16 of the Federal Court of Appeal Act, is competent to assume the role of judge and jury in the matter and correct all errors of law and conclusions inferences and findings of fact.

One of the issues raised in the appeal before the Federal Court of Appeal was the meaning and the implication of the word “removed” in the con in which it was used in the publication complained of. Following on the issue as to the meaning of the word “removed” was the issue whether there was evidence before the court which proved that the words complained of were capable of the defamatory meaning ascribed to them. These issues were raised in challenge to the opinion held by the learned trial judge.

The determination of these issues by the learned Justices of the Court of Appeal can only be carried out by their assuming the role of judge and jury. Learned counsel for the appellants, Mr. Scott-Emuakpor, submitted, erroneously, in my view, that such assumption was a usurpation of the function of the lower court. I, however, agree with learned counsel’s observation that an appeal court has the duty of pointing out where the trial court went wrong. Contrary to the opinion of learned counsel this was what the Federal Court of Appeal has done in this case. Surprisingly, learned counsel for the 3rd defendant, now the appellant herein has submitted before this Court that the learned trial judge was right in holding that the plaintiff had not proved his case. The findings of the

learned trial judge that .

“(1) the plaintiff has not shown that the publication is defamatory in its natural and ordinary meaning and has not given any evidence of extrinsic facts to justify paragraph 14 (supra) of the amended statement of claim,

(2) that the plaintiff has proved no facts or circumstances which make the words complained of capable of the defamatory meaning ascribed to them by him.”

amount to the same thing.

The learned trial judge arrived at these findings as a result of his own interpretation of the publication and the consideration of the evidence before him. The plaintiff did not accept that interpretation and urged the Federal Court of Appeal to interprete the publication differently and hold that the imputation contained in the words of the publication is capable of being defamatory and was in fact defamatory. The publication it must be observed, was in English language. English language, whether in classical form or in pidgin form, is read and spoken by a large section of the Nigerian reading public. English language is so widely spoken in Nigeria that it can properly be classified as the lingua franca in this country.

In deciding whether words are capable of conveying defamatory meaning, the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation [per Lord Morris in Jones v. Skelton (1963) 1 WLR at p.1370].

The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense. In determining whether the words are capable of a 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 meaning might succeed in extracting from them. The test according to Lord Selborne “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 libellous sense.”

Learned counsel in his brief did not seem to take kindly to the Federal Court of Appeal’s reference to and use of “the ordinary man”. I see nothing wrong with it although I would prefer the use of “the reasonable man”. Reasonable men exist in all human societies in the world and where a publication such as the one complained of is made in a newspaper with circulation going beyond the shores and boundaries of Nigeria, it becomes available for reading by human societies other than our own and it is the meaning that reasonable men in those societies ascribe to them that is of interest to us.

The words “removed from office” are therefore very hard words with a sting. In ordinary usage, ‘to remove’ anything cannot but imply the application of force to move the object or subject and the imputation is that the object or subject is unwanted, undesirable for reasons other than favourable. The first four definitions of the word remove in Websters New Twentieth Century Dictionary unabridged 2nd edition are as follows: .

“(1) to move something from where it is, to lift, push, or carry away or from one place to another.

(2) To take off; as remove your coat.

(3) To take (a person) away by death, to kill; to assassinate.

(4) To dismiss as from an office or position.”

Removal of persons from positions of responsibility and trust cannot in the normal course of human behaviour and thinking be regarded by reasonable men as a tribute. Learned counsel for the appellant however conceded this at the hearing. He agreed to an Urhoboman, the publication, particularly the words “removed from office” convey defamatory imputation. The Urhoboman would, according to him, think that the plaintiff must have done something wrong and would ask what he had done wrong to merit his removal from office. I would say that the Hausaman, the Iboman, the Yorubaman, the Edoman and indeed any reasonable man from all the other ethnic groups in Nigeria, would have the same impression of the plaintiff and ask the same question. Similarly, reasonable men from other tribes and races in the world would react the same way.

The plaintiff as a member of the board of directors of the company held a position of responsibility and trust and the publication of his removal from that office without publication of the reasons for the removal cannot but leave reasonable men a wide field for speculation of unlimited number of reasons for the action taken by the shareholders. The court cannot but take judicial notice of the fact that the period July, 1975 to the end of 1977 was a period of the great purge in the public services of this country of public officers and civil servants by the military administration from their offices for various misconduct including inefficiency, corruption, unjust enrichment. Invariably, the removal from these offices were with “immediate effect”. The stated objective of the military administration was to “clean” the public services.

The publication of the removal of the plaintiff from the office of Director coming at a time when the alleged cleaning process embarked on by the military was on, reasonable men in Nigeria cannot but impute defamatory meaning to the publication complained of.

Counsel for the appellant held a contrary opinion in his brief and the main issue raised by the 3rd defendant now appellant in paragraph 9 of his amended statement of defence was as a result of this erroneous opinion. That paragraph reads:

“The 3rd defendant avers that the words complained of in paragraph 13 of the statement of claim do not bear and are incapable of bearing any defamatory meaning let alone the meaning ascribed to them by the plaintiff in paragraph 14 thereof.

The third defendant avers that he is justified in causing the publication of the said words.”

In view of what I have said above, I am unable to agree with the appellants and the learned trial judge that the publication complained of is incapable of any defamatory meaning. Instead, I find myself in agreement with the learned Justices of the Federal Court of Appeal that the publication is capable of defamatory meaning and that from the evidence and circumstances, it was in fact defamatory of the plaintiff. I cannot but agree with Collin, L.J. when he said:

“One must consider, not what the words are; but what conclusions could reasonably be drawn from it, as a man who issues such document is answerable not only for the terms of it but also for the conclusion and meaning which persons will reasonably draw from it” in Capital and Counties Bank v. Henty (1880) 5 CPD 514 at 536.

See Morris v. Sandess Universal Products (1954) 1 All ER. 47 where the word “dismissed” was held to be capable of defamatory meaning.

The facts of that case are almost on all fours with the instant appeal. There, the defendants stated in a circular letter addressed to their customers that they had dismissed the plaintiff who had now no connection whatsoever with the defendant company. The plaintiff sued for libel alleging that the words used by the defendants meant that the plaintiff had been guilty of some discreditable conduct and the defendants contended that the words complained of were incapable of a defamatory meaning. On the issue tried as a preliminary point oflaw, Lord Goddard, C.J. held that the words “dismissed from our employ” in a letter of the kind in question were capable of a defamatory meaning. The defendants appealed. The appeal came before Jenkins and Morris, LLJ. Jenkins LJ. dismissing the appeal (Morris LJ concurring) said at pp. 50 and 51:

“I confess that on reading these authorities I find it difficult exactly to appreciate the position in which they leave the matter . . . But I find assistance in this difficulty from Turner (otherwise Robertson) v. Metro-Goldwyn Mayer Pictures (1950) 1 All ER 449 to which we have been referred by counsel for the plaintiffs and in particular from the following passage in the speech of Lord Porter where his Lordship said (1950) 1 All ER. 454

‘. . . It is, of course, the duty of a judge in the first instance to put an accurate interpretation on the word used, and having done so to make up his mind whether they are capable of a defamatory meaning or not . . . If he comes to the conclusion that a reasonable jury would be justified in finding that they had a libellous tendency, he must leave it to them even though the words might also bear an innocent interpretation or to put it from the point of view of an appellate court, the question of libel or no libel should have been left to the jury if it cannot be said that twelve men could not reasonably have come to the conclusions that the words were defamatory. . . .

The matter therefore depends on the question whether or not a reasonable jury would be justified in finding that the words complained of had a libellous tendency, or in other words whether or not it can be said that twelve men could reasonably come to the conclusion that the words complained of were defamatory.

Counsel for the defendants has suggested to us a variety of meanings for the words “dismissed” and he says that it does not, by any means, necessarily have a derogatory connotation. But in my view, the function of the judge on such a matter is to endeavour to decide what meaning the language used could reasonably be held to convey to persons to whom the communication was addressed. Looking at the letter from that point of view, notwithstanding the various inoffensive meanings which the words “we have dismissed/the first or second plaintiff/” might be said to be capable of bearing, I find myself unable to hold that the words complained of are not capable of a defamatory meaning or that it is not possible that a reasonable jury might hold them to be defamatory.”

I now go on to deal with the contention that the Federal Court of Appeal was in error in failing to uphold the plea of justification and fair comment.

It is clear from the publication complained of that it is not comment at all to warrant any consideration of the plea of fair comment. The plea of justification raised by the appellant in his defence was never established. To establish a plea of justification the defendant must prove that the defamatory imputation is true. The defendant must justify the precise imputation complained of. In other words, strict proof is demanded. At common law, under a plea of justification, the defendant must prove the truth of all the material statements in the libel. There must be a substantial justification of the libel. To make a good plea of the whole charge, the defendant must justify everything that the libel contains which is injurious to the plaintiff. A plea of justification means that the libel is true, not only in its allegation of fact, but also in any comments made thereon. The defendant therefore has the onus to prove not only that the facts are truly stated but also that any comments on them are correct. See

Peters v. Bradlaugh (1884) 4 TLR 467

Kerr v. Force (1826) 3 Cranch CC 8 at p.24

Truth (N.Z.) Ltd. v. Holloway (1960) 1 WLR 996 (PC)

Werner Bert v. Markham (1901) 18 TLR 143, 763

Johns v. Gittings (159) Cro Eliz 239

Clarkson v. Lawson (1829) 6 Bing 266; 3 Moo & P

Cooper v. Lawson (1938) 8 A & E 746

Sutherland v. Stopes (1925) AC at pp. 62, 63, 75.

It is not necessary to prove the truth of every word in the libel. If the defendant proves that “the main charge, or gist of the libel is true, he need not justify the statements or comments which do not add to the sting of the charge” [Sutherland v. Stopes (supra)].

It appears the learned trial judge and counsel for the appellant did not quite appreciate the true purport and meaning of the plea of justification in an action for libel. It was therefore necessary for me to give as I have done, a fairly detailed statement of the law on the matter. The misconception of the learned trial judge is evident when in his judgment he commented and observed:

“The only defences open to the 1st and 2nd defendants are therefore those of justification and fair comment . . . The question that concerns me in this judgment is was the plaintiff in truth and in fact removed’ ”

The real question that concerned the learned trial judge was not the bare fact of removal of the plaintiff from office, but whether the defamatory imputation, arising from the publication as set out in paragraph 14 of the final amended statement of claim and established by the evidence, was established as true. In other words, was it established as true that the plaintiff was guilty of misconduct, was guilty of fraud, was a thief, and was not competent and not a fit and proper person to take part in the affairs of the company The appellant cannot claim to have established the truth of any of these defamatory imputations. There is therefore no substance whatsoever in grounds 1, 2, 3, 4, 5, 6 and 7 of the grounds of appeal. Ground 7 is no ground of appeal at all.

With regard to ground 8, I find nothing in the record of proceedings indicating a lack of appreciation by the learned Justices of the Court of Appeal that the law imposes on the plaintiff the burden of proof of the libel and publication to entitle him to damages. It is certainly not part of the function of the judge to make pronouncements on matters not relevant to his decision in the case before him. The obligation of the judge is to reach that decision which coheres best with the total body of authoritative legal standard he is bound to apply. The paradigm of a rational decision is one reached according to rules, principles and standards. The law of evidence imposes upon the judge the duty to reject irrelevant matters and confine himself to the admission and consideration of relevant matters. There is therefore similarly no substance whatsoever in this ground of appeal: The appellants’ appeal has no merit whatsoever and I hereby dismiss it.

I now proceed to deal with the respondent’s notice to vary the decision of the Federal Court of Appeal by increasing the damages awarded for the libel to the figure of N50, 000.00.

This Court invited counsel to address it on whether it was competent for the Court to entertain the contention to increase damages on a Notice filed under Order 7 rule 13( 1) of the Supreme Court Rules 1977 instead of a Notice of Appeal by way of cross-appeal. Learned counsel for the respondent submitted that it was competent for the Court to entertain the contention and cited in support, the case of Lagos City Council v. Emmanuel Ayodeji Ajayi, (1970) 1 All NLR 291 a decision of this Court. In that case, a notice of intention to contend that the judgment should be varied was filed under Order 7 rule 13 of the Supreme Court Rules 1961, i.e. the old Rules. At the hearing of this appeal, a preliminary objection was raised by the learned counsel for the appellant that as the contents of the respondent’s notice postulated that he was appealing, he should have come by way of cross-appeal. The Court overruled the objection and held that the notice filed pursuant to the provisions of Order 7 rule 13(1) was competent.

The Supreme Court Rules, 1961 are no longer in force, the Rules having been replaced by the Supreme Court Rules 1977 which came into force on 1st September, 1977. It is therefore necessary to examine the 1961. Order 7 rule 13(1) and the 1977 Order 7 rule 13( 1) and see whether they are in pari materia or not. The 1961 Order 7 rule 13(1) reads:

“It shall not be necessary for the respondent to give notice of motion by way of cross-appeal; but if a respondent intends during the hearing of the appeal to contend that the decision of the court below should be varied, or that it should be reaffirmed on grounds other than those relied on by that court, he shall within one month after service upon him of the notice of appeal, cause Notice of such intention to be given to every party who may be affected by such contention, whether or not such party has filed an address for service. In such notice, the respondent shall clearly state the grounds on which he intends to rely and within the same period he shall file with the Registrar of the court below six copies of such notice of which one shall be included in the record and the other five copies provided for the use of the judges.”

On the other hand, the 1977 Order 7 rule 13(1) reads:

“A respondent who, not having appealed from the decision of the court below, desires to contend on the appeal that the decision of that court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect specifying the grounds of that contention and the precise form of the order which he proposes to ask the court to make, or to make in that event as the case may be.”

Order 7 rule 13(2) which, in my view, reflects part of the 1961 Order 7 rule 13(1) reads:

“A respondent who desires to contend on the appeal that the decision of the court below should be affirmed on grounds other than those relied upon by that court must give notice to that effect specifying the grounds of that contention.”

Although these two rules are worded differently, one feature is common to them. It is that the rules are available to a respondent who has not appealed, i.e. a respondent who has not filed a notice of appeal by way of cross-appeal, but wishes to contend that the decision of that court be varied.

However, it appears to me that the 1977 rule 13(1) of Order 7 in so far as it is available in any event or in the event of the appeal being allowed in whole or in part, has wider application than the 1961 rule 13( 1) of Order 7. The objective of the 1961 rule was aptly brought out by Coker, J.S.C. when he (delivering the judgment of ‘the Supreme Court in the case of Lagos City Council v. Ayodeji Ajayi (supra) (1970) 1 All NLR 291) said at 296:

“The result of the enquiry therefore is that the notice under Order 7 rule 13( 1) applies where a particular point in the appeal of the appellant is being stretched by the respondent who contends for its maintenance but proposes a variation of it if that be the only way he could be enabled to retain the judgment. It would seem however, that once the respondent’s notice has been given, the appellant cannot prevent the respondent having the point raised in his notice by withdrawing his notice of appeal. See In Re Cavanders Trusts (supra). The notice filed by the respondent in this case clearly seeks to retain the judgment but requests a variation of the amount awarded by that court. The notice postulates that the approach of the learned trial judge to the case was correct but that his conclusions had adversely affected the respondent who thereby contends that by the same reasoning of the learned trial judge he should have received a greater award. We therefore hold that the notice filed in this case pursuant to the provisions of Order 7 rule 13(1) is competent.”

In the instant appeal, respondent seeks to retain the judgment but requests a variation of the amount awarded by the Federal Court of Appeal upwards from N3, 500.00 to N50, 000 on the grounds that the proper evaluation and conclusions the learned Justices arrived at entitled him to a higher award. I am satisfied that the notice filed by the respondent in this case under the provisions of Order 7 rule 13(1) of the Supreme Court Rules is competent.

The learned counsel for the respondent submitted that having regard to all circumstances of this case, the award of N3, 500.00 as damages was inadequate. The grounds on which this submission was founded was the fact that the plaintiff was a man in a substantial way of business and (2) that the plaintiff at least, lost as a result of the publication business with a turnover of N1, 000,000.00 per annum.

There is no evidence that the learned Justices of the Court of Appeal have not been guided by the proper legal principles of assessment of damages for libel. They proceeded to give their assessment after fully setting out the principles by which they would be guided as contained in paragraph 1358 at page 556 of Gatley on Libel and Slander 7th edition. I would therefore dismiss the contention to vary the damages awarded to N50, 000.00.

It was also contended that the assessment of damages should have been referred to the High Court. To meet the ends of justice best and avoid delay, trouble and expense which further proceedings would involve, the action taken by the Federal Court of Appeal in assessing and awarding the figure of N3, 500.00 as damages was in consonance with the due administration of justice. [See Tai Bing Cotton Mill Ltd. v. Mamsine Knitting Factor (1979) AC 91 105.]

On the whole, the appeal fails and is hereby dismissed. The appellants shall pay the respondent costs in this appeal fixed at N300.00.

SOWEMIMO, J.S.C.: As stated in the leading judgment of my learned brother Obaseki, J.S.C, the Federal Court of Appeal is in the same position in law as the High Court to decide whether a publication is defamatory or not. Without repeating the leading judgment, I agree absolutely with what my learned brother had to say.

On the issue of respondent’s notice under Order 7 rule 13(1) of the Supreme Court Rules 1977, I agree that it is open to the Federal Court of Appeal to entertain arguments on the assessment of damages. The Federal Court of Appeal had applied the legal principles as set out in Gatley on Libel and Slander in assessing the correct damages in this case, having regard to the evidence led by the respondent which was never contradicted by the appellant.

It is of the utmost importance, and one has got to have it repeated in the hope that trial courts of record will keep strictly to the guiding principles governing trial of cases. In a court of record trials are based on the pleadings filed by the parties and issues joined thereon. In considering the decisions, relevant and material facts are considered and findings made thereon. It is unfortunate in this instant case that the learned trial judge seems to have lost sight of the issues raised in the pleadings as well as the legal consequences flowing from such and in deciding that the publication is not defamatory the decision is perverse. Having lost sight of this, the learned trial judge went astray from the pleadings and it was therefore open to the Federal Court of Appeal to put matters in their right perspective in interpreting the publication.

Learned counsel for the appellant had erroneously striven to argue that it was not open to the court of appeal to disagree with the court of first instance on whether a publication is defamatory or not. No authority was cited in support of this novel submission and I cannot see any justification for it at all.

I agree with the judgment of my brother Obaseki, J.S.C. and will adopt the orders which he proposed in his judgment. The appeal of the appellant fails and is hereby dismissed. The appellant will pay to the respondent costs in this appeal fixed at N300.00.

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Other Citation: (1983) LCN/2197(SC)