Michael Oladipo Olorunnisola Labati V. Mr. Luqman Amoo Badmus (2006)
LawGlobal-Hub Lead Judgment Report
UDOM-AZOGU, J.C.A.
This is an action for defamation arising from alleged examination malpractice wherein the plaintiff claimed as follows in the court below:-
“The sum of N5,000,000 (five million Naira) against the defendant being damages for defamation expressed in libelous publication as contained in the petition dated 1st March 2000 written to the defendant against the plaintiff with the title Re- Extortion of Money From Students By Mr. Badmus Gbadamosi.
A perpetual injunction restraining the defendant by himself, his servants or agents from further publishing or spreading the said defamatory statements concerning the plaintiff.”
Pleadings were filed and exchanged and evidence of the witnesses was taken from plaintiff and from respondent between May 9th 2001 and 13th July 2001. After address by counsel on both sides the learned trial Judge delivered Judgment on 2nd August 2001. The learned trial Judge found for the plaintiff and awarded N50,000 damages against the defendant and injunction restraining him, his agents, servants, wards, privies from further publishing or spreading the said defamatory statement concerning the plaintiff.
The Defamatory Statement is hereby reproduced:
“(i) He is fond of behaving in a dubious way.
(ii) As the government used to collect money for examination he also collects his own money for examination from other school people.
(iii) I will like the government to do something about the behaviour of this man as he may jeopardize the free education plan of the Government for all the people of Oyo State. He is a Councillor that will mislead the school kids.
(iv) He told them that English is N5,000.00 and Maths is N5,000.00 and that they will be talking about the rest later. The woman called Patience gave Badmus the money and promised to balance up before the exams hold.
(v) On the day of exam at Ojoo High School the young lady called Patient who came to Badmus house was caught cheating in Exam Hall. One Mrs. Tewe caught her with WAEC Officer and the matter was reported to some other officials from Ministry of Education they asked her who gave her the question and she told them that Badmus the Cancellor gave her the question.
(vi) When I heard this I was mad because councillor Badmus has destroyed the way of these innocent young starts.
(vii) Also the councillor and some other teachers and Principal are engaged in defrauding the school.
(viii) Also Mr. Badmus is involved in many criminal activities and he is well known in Sango Police Station, Bodija Police State. Anytime he was arrested by the police he always go scot free because he has a father who retired as a Police Officer and one of his family still in service.”
The Appellant dissatisfied with the judgment has appealed to this court. Seven grounds of appeal were filed and from that the plaintiff formulated four issues for determination.
- “Whether the learned trial Judge was right in giving judgment in favour of the Respondent when the Respondent did not prove at the trial that he was known and called Badmus Gbadamosi, the name on the petition (Ground 1).
- Whether the learned trial judge was right in rejecting at judgment level Exhibits F1-F3 which have been validly tendered and received in evidence (Ground 6).
- Whether the learned trial Judge was justified in holding that the Appellant published Exhibits A1-A3 (Grounds 2, 3, 4 and 5).
- Whether on the totality of evidence before the court, the learned trial Judge was justified in giving judgment to the Respondent (Grounds 7 and 8).
On his part the Respondent articulated two issues for determination.
- Whether the trial Judge was right in holding that the petition, Exhibits A1-A3 written by the Appellant to the Oyo State Commissioner for Education referred to the Respondent.
- Whether the trial Judge was right in giving judgment in favour of the Respondent by holding that the contents of the petition Exhibits A1-A3 written by the Appellant to the Oyo State Commissioner for Education are defamatory of the Respondent.”
Issue One of the Appellant’s brief is a reproduction of the ground of appeal. Even though the grounds of appeal relate to issues or issues arising from the grounds of appeal in the sense that the issues are covered by the ground, the reproduction of the ground of appeal as an issue in the brief is not allowed.
In the case of OLOWOSAGO v ADEBANJO (1988) 4 NWLR (pt 88) 275 the Supreme Court condemned that practice. The relationship does not mean that Counsel can incorporate the grounds of appeal as part of the brief.
See ANYAOKE & ANOR v DR. ADI & ORS (1986) 3 NWLR (Pt 31) 731 per Uwais JSC (as he then was) at pages 731 and 740. The Appellant’s first issue is therefore discountenanced.
I shall determine this appeal based on the Appellant’s issues for determination.
The Appellant argued issues two, three and four together.
On issue 2 – Learned Counsel J.O.A. Ajakaiye on behalf of appellant argued that the petition sent to the Commissioner for Education was not published to him as alleged by Respondent in view of the fact that it was photocopy which the Commissioner made out and sent through Local Inspector of Education to the Principal that was tendered as Exhibits A-A3. He argued that the learned trial Judge was wrong in rejecting Exhibits F- F3 on the ground that the name on the claim is Olorunnishola and not Michael Labati, the name under which the appellant was sued. Exhibits F-F3 he contended were pleaded in paragraphs 5 and 7 of the statement of Defence and admitted in paragraph 1 of the Reply.
What is admitted need not be proved. See OGUNLEYE v ONI (1990) 2 NWLR (Pt 135) 745.
What Counsel failed to appreciate is that even though parties are bound by their pleadings, pleadings are not evidence. Exhibits F-F1 are not part of the proceedings of the court having been tendered, rejected and marked “rejected”. The issue of admission does not therefore arise. That notwithstanding it is the view of learned counsel for the appellant that rejection of documents pleaded and admitted is wrong in law and has occasioned a miscarriage of Justice. He cited IGBODUN v OBIANKE (1976) 9-10 SC 179 at 190-143, OGUNMA ASSOCIATED CO, NIG. LTD. v INTERNATIONAL BANK FOR WEST AFRICA (1988) 3 SC 20 at 35, BRITISH INDIA GRAND INSURANCE CO. NIG LTD. v THAVARDS (1978) 3 SC 143 KIDNEY v MILITARY GOV. OF GONGOLA STATE (1988) 5 SC 46 at 77. He referred the court to Exhibits F-F3 as showing that there was no publication of Exhibits A1-A3. It must be noted that on the face of Exhibit ‘A’ the alleged defamatory letter which is titled Re-Extortion of Money from Students by Mr. Badmus Gbadamosi, is addressed to the Commissioner for Education, Ministry of Education, Secretariat Ibadan. There is no doubt that the Commissioner received the letter, read it, before minuting it to Local Inspector of Education (see paragraph 4 of statement of claim, 6 of the statement of defence.) See also the evidence of PW1 one Mr. A. Olasepo where he said “I am aware of a petition written against the plaintiff by the defendant. The petition was addressed to the Ministry of Education and the Commissioner passed it to Local Inspector of Education at Moniya then to me the Principal.” In other words the original petition was given to the Commissioner who photocopied it and minuted to the Local Inspector of Education. The petition was tendered and marked Exhibit A-A3. The appellant’s argument that there was no publication in view of the fact that the photocopy was tendered is erroneous since the Commissioner received the original but photocopied it and minuted to the Local Inspector. The law is that where the whereabouts of the original is known and explained to the court the photocopy may be tendered as secondary evidence. See sections 93-97 of the Evidence Act Cap 114 Laws of the Federation 1990. The publication was not only to the Commissioner but to the Local Inspector and others. Issues 3 and 4 – whether the learned trial Judge is justified in holding that the appellant published Exhibits A1-A3. Whether on the totality of evidence before the court the learned trial Judge was justified in giving judgment to the Respondent.
Appellant submitted that before a matter can be said to be defamatory of the Respondent, he has to prove that it was published to other persons than himself. He cited ESEIROWO v UKPONG (1999) 4 SC 6 5-20. He argued that since the petition was sent to the Commissioner who sent photocopy to Local Inspector of Education and Principal of Ojoo High School, and since the respondent is relying on this in proof of his case, the appellant cannot be held responsible for the acts of the Commissioner. With all due respect to learned Counsel the submission supra appears to give the impression of an underlying misunderstanding of the Tort of Defamation, Libel and Publication. In the light of the above I shall attempt a definition of the above.
“Defamation is any imputation which may tend to lower the plaintiff in the estimation of right-thinking members of society which exposes him to hatred, contempt, ridicule.” See Gately on Libel and Slander 7th Edition, Chapter I pages 2 and 6, paragraph 4.
Libel is defamation in permanent form, i.e. publication by the defendant by means of printing, minting, writing, picture or the like sign or matter defamatory to the plaintiff. The libel must be pleaded in the statement of claim, as the plaintiff did.
The defamatory words must be understood to be published of and concerning the plaintiff. See KNUPFFER v LONDON EXPRESS NEWSPAPERS LTD (1944) AC 119 where the Privy Council held as follows:
“There are two questions involved in the attempt to identify the Appellant as the person defamed. The first question is a question of law – Can the article, having regard to its language, be regarded as capable of referring to the Appellant? The second question is a question of fact – Does the article, in fact lead reasonable people, who know the Appellant, to the conclusion that it does refer to him? Unless the first question can be answered in favour of the Appellant, the second question does not arise…”
The impression that it is false unless the contrary is pleaded and proved, and further pressing damages, since libel is actionable per se i.e. without proof of special damage. To say that the petitioner must prove that the petition published to a person other than himself therefore portrays an underlying and basic misunderstanding of the Tort. Surely the publication must be to a third person not to the petitioner himself.
In the alternative he argued that the publication was made on a privileged occasion, having regard to the fact that the petitioner was entitled to make the report contained in Exhibits A-A3 and the Commissioner and the Local Inspector and Principal of Ojoo High School have the corresponding duty to receive the petition. He cited ADAM v WARD (1917) AC 309 334. He submitted that failure by the respondent to tender the report/reply sent to the Commissioner as pleaded in paragraph 5 of the statement of claim was deliberate. He knew the contents would be against him.
Learned Counsel for the appellant wondered why by the learned trial Judge preferred the evidence of the respondent on all the issues complained of, some of which the respondent admitted in his pleadings to that of the appellant who should benefit from the admission made by the respondent in proof of his case.
The Respondent replied that the trial Judge recorded the evidence adduced by the witnesses of both parties. He examined all the exhibits tendered and evaluated them and preferred the evidence given in support of plaintiff/respondent’s case to that of the defendant/appellant.
The learned trial Judge set out the ingredients that must be proved by plaintiff before he can succeed. These include –
- “Publication of the offending words to third parties
- The libelous words must refer to the plaintiff
- The words must be defamatory of plaintiff
- Falsity of words complained of
- That there were no justifiable legal grounds for the publication of the words.”
The defendant himself testified that he wrote Exhibit A-A3, signed it. In paragraph 4 of the statement of defence the defendant said he wrote the said petition but denied that it was false, baseless, vicious, malicious and or defamatory of the plaintiff. DW4 Miss Onolowale Olorunnisola testified that Exhibits A-A3 emanated from her father, the Defendant.
The Statement of Defence reads thus:-
“4. With reference to paragraph 3 of the statement of claim, the defendant states that the defendant wrote the said petition stated therein but denies that it was false, baseless, vicious, malicious and or defamatory of the plaintiff.”
On whether the words were defamatory of the plaintiff/respondent DW1 in his examination in chief said that he recorded Exhibits A-A3 that no examination malpractice happened that year and Exhibit AI does not contain record of one Patience who is alleged to have cheated in the examination that year. PW2 confirmed that there was no examination malpractice in her school at that time. The plaintiff himself testified that he never collected N5,000 for Mathematics or English for WAEC Exam, never behaved in a way that will jeopardize people in Oyo State, does not know Patience and did not destroy the life of young ones nor was he arrested by police nor did he have any criminal record or collect N3,000 from defendant’s daughter for lesson. He denied allegation about criminal activities in Molutata Hotel Exhibit G. He cited MR. JUSTICE SYLVESTER ONU v DAN AGBESE & 1 OR, SKETCH PUBLISHING CO. LTD & ANOR v ALHAJI AZEEZ AJAGBEMOKEFERI (1989) 1 NWLR (Pt 100) page 678 at 681. On proof of the falsity of the statement, the statement of claim, defence, evidence of witnesses are replete with denial of the allegation see evidence of PW1, PW2, DW1, DW2 at page 58 of records.
“P.W.1 examination in chief has the following to say:-
That he received Exhibit A-A3, that no examination malpractice happened that year, that he had read Exhibit A1 that there is no record of Patience that cheated in the examination that year.”
S1 also Prs. Tewe, the P.W.2 testified thus:-
“That the allegation made against her are not correct, that there was no examination malpractice in her school at that time.”
The plaintiff himself testified thus:-
“That he never collected any N5,000.00 for Mathematics or English for WAEC examination, that he never behaved in a way that he will jeopardize people in Oyo State, that he does not know Patience not destroyed the life of young ones nor was he arrested by the Police nor have any criminal record that he did not collect money(N3,000.00) from the defendant’s daughter for lesson.”
“D.W.1 testified that he does not know the defendant, that it was the defendant’s daughter Miss Omobowale Olorunnisola that asked her to come and be a witness for her father. The defendant also treated D.W.3 as hostile witness and that statement in Exhibit E goes to no issues, should be expunged because he has not come to give the evidence in accordance to the subpoena.”
The appellant had submitted that even if the appellant published Exhibits A-A3 to the Local Inspector of Education and Principal Ojoo High School, which is denied, since the Local Inspector of Education and Principal are subject to authority of the Commissioner for Education, appellant by a motion of the Board of Ojoo High School, the principal is entitled to make the report contained in Exhibit A-A3 and the Commissioner and Local Inspector of Education – Principal from corresponding duty to recover the petition, the publication is made on a privileged occasion.
The learned Counsel for the Respondent defined privileged occasion as “when a person in discharge of some public or private duty whether legal, social or moral honestly make it on a subject-matter in which he is interested to another person who has a corresponding duty and interest to receive, citing ILOABACHIE v PHILIPS (2000) 14 NWLR (Pt 686)” He submitted that the defence of the appellant which are justification and qualified privilege at the altar of malice, falsity and lack of patronage. In Exhibits F-F3 names as Mr. A. Olorunnisola yet to be smuggled in Oladipo Olorunnisola in the statement of defence while the name used by the appellant in Exhibits A1-A3 and writ of summons are Michael Labati. He cited EGBE V. ALHAJI ABUBAKAR (1990) 1 NWLR (Pt 128) 546 at 528;
BENUE PRINTING & BUILDING CORPORATION v UMORU GWAGWADA (1989) 4 NWLR (Pt 116) 439, ILOABACHIE v PHILIPS cited supra among others. He submitted that damages of N50,000 was not excessive. All the issues are resolved in favour of the Respondent.
It must be remembered that award of damages in defamation matters is at the discretion of the court but it must not be punitive. The court will take into consideration all the instances of the particular case. Libel is of course actionable per se i.e. without proof of special damage. The assessment does not depend on strict legal rules, but certain rules operate to guide the exercise of discretion. See ALAWIYE v OGUNSANYA (2004) 4 NWLR Pt.864) at 486. See also BRAY v FORD (1986) AC 44 at 50, NTUKIDEM v OKO (1986) 12 SC 126 (1988) 5 NWLR (Pt 45) 909, UNIVERSITY OF LAGOS v AIGORO (1985) 1 NWLR (Pt.1) 143 1985 1 SC 265 at 271.
In the final result I find:
- that the contents of Exhibits A1-A3 were published of and concerning the plaintiff
- that the words contained therein are defamatory
- that the publication of the offending letter was to the Commissioner, the Local Inspector of Education and also the Principal, Ojoo
- that the contents of the letter are false
- there was no justification for launching such a vicious malicious attack on a co-tenant whom he was friendly with before the grapes became sour as a retired staff of the University of Ibadan.
The judgment of the court below is sustained. The appeal has no merit and it is dismissed. I award costs of N5,000 in favour of the Respondent.
Other Citations: (2006)LCN/1957(CA)
