New Nigerian Newspapers Ltd And Anor V Oteh O. Oteh (1991)

LawGlobal-Hub Lead Judgment Report

KUTIGI, J.C.A.

Before the Calabar High Court the plaintiff claimed jointly and severally against the defendants N500,000.00 (Five Hundred Thousand Naira) being damages for libel contained in paragraph 4 of the Amended Statement of Claim.

It reads as follows-  ‘On the 5th day of September, 1977 the Defendants falsely and I maliciously printed and published of and concerning the plaintiff in the way of his profession and office as head of Works Department , of the University of Calabar of Page 17 of the New Nigerian, the libel hereinafter set out namely ILLEGAL FINANCIAL DEAL UNCOVERED AT UNICAL.

An illegal financial transaction totalling about N500,000.00 has been uncovered at the University of Calabar (UNICAL). Calabar in the Cross River State. Disclosing this to the New Nigerian in Calabar sources close to the Works Department ‘!lid thousands of Naira were being paid through Vouchers prepared In the Accounts Department of the University to an official of the Department almost every week for the supply of certain items to the institution. The official who was said to be a Senior Staff of the Works Department was reported to have arrogated to himself the duties of a purchasing officer for the University.

The source also said that the official collected N7,000.00 on June 26th this year another N7,000.00 on June 29th, N1,000.00 on July 15th and N24,000.00 on July 20th, amounting to about N39,440.00 paid to him within one month for the same purpose. More than N500,000.00 had been siphoned out of the University ‘since the deal started six months ago’, the source disclosed. ‘The official buys the items, receives them into the store and issues them out without being checked by anybody to ascertain whether or not the items were of the right quality and worth the amount collected for their purchase’, the source alleged. ‘The source further alleged that the official buys almost all the items from one Company in Aba in which he has some interests’ As a head of Department, the source argued it was most irregular and unusual to make himself a purchasing Officer, it was also alleged that the official had been offered accommodation on three occasions but had refused and chose to stay in a Hotel at the expense of the University.

While in the Hotel, the official also received Hotel claims and other benefits’. The official was also alleged to have converted one of the Universitys vehicles a 404 Pick Up Van No. 4729 C to his private use and had consequently given instructions that the inscription University of Calabar -written on all the Institutions vehicles, should not be written on the vehicle. Further investigations by the New Nigerian revealed that the University might face serious financial problems if positive steps were not taken to remedy the situation’.

The plaintiff then procee6ed to plead in paragraphs 21 and 22 thereof thus-  ’21. By the words set out in paragraph 4 hereof, the Defendants meant that the plaintiff was a dishonest and fraudulent Head of the Works Department of the University and had no scruples in stealing funds of the University.  

22.  By reason of the premises the plaintiff has been greatly injured in his credit and reputation and in his profession as the Engineer and Head of the Works Department of the University and has been dismissed from the services of the University as per letter dated 16th March, 1979.’ The defendants on the other hand pleaded in paragraphs 4, 5, and 16 of their Amended Statement of Defence that- 4. The defendants deny paragraphs 4, 5 and 7 all inclusive of the Statement of Claim and put the plaintiff to the strictest proof thereof. 5.    The defendants deny that the words set out in paragraph 4 of the Statement of Claim meant or were understood to mean the words set out in paragraph 21 of the Amended Statement of Claim.   2    The Defendants deny paragraph 22 of the Amended Statement of Claim and aver that if even the plaintiff had been dismissed from the services of the University of Calabar, the said dismissal had nothing to do with the Defendants.

The defendants will rely on the plaintiffs letter of termination of appointment from UNICAL Dated 16th March, 1979.   16.  The Defendants say that they are perfectly justified in publishing the said article in Newspaper as the material facts are true. Furthermore it was a fair comment on the nature of the financial irregularities in a Federal Government owned University.’   It was thus clear from the pleadings at least, that the defendants did not deny the writing and publication of the article but only contended that it did not refer to the plaintiff or that if it did at all the publication consisted of material facts which are true, justified or fair comment on a matter of public interest. At the trial the plaintiff called a total of seven witnesses and closed his case.

There were series of adjournments to enable the defendants come before the court and state their own side of the case. It never happened. In the end the learned trial judge gave judgment in favour of the plaintiff against the defendants jointly and severally in the sum of N100,000.00 with costs of N500.00. Dissatisfied with the judgment, the defendants now ‘appellants’, have appealed to this court. The plaintiff will henceforth be called ‘the respondent’.

Five grounds of appeal were originally filed and later one additional ground was added. Counsel on both sides filed and exchanged briefs in the case. They were adopted at the hearing. Oral submissions were also made. Mr. Sowemimo learned counsel for the appellants raised four issues for determination in his brief. I will renumber them as follows-

1.   Whether the learned trial judge was right in entering judgment in favour of the plaintiff without affording the defendants sufficient opportunity of presenting their case. 2.   Whether the learned trial judge was right in entering judgment in favour of the plaintiff on the totality of evidence adduced before the court.   3.   Whether based on the evidence before the court and the pleadings the defence of qualified privilege would not avail the Defendants in view of the fact that the plaintiff never filed a reply raising the, issue of malice.  

4.  Whether the sum of N 100,000.00 damages awarded the plaintiff is not excessive in the absence of facts aggravating damages. Arguing the first issue Mr. Sowemimo submitted that the learned trial judge, was wrong when he said in his judgment at pages 87-88 of the record that- ‘I must say that the defendants did nothing to defend this case in court, apart from filing a Statement of Defence, and even tendering of Exhibit 2, would not suffice.

I do not think that the filing of defence without more -i.e. leading no evidence in defence is sufficient. At a certain stage their counsel. Mr Sowemimo filed applications for amendment and for leave to reopen the case after the plaintiff had closed his case and the case adjourned for defence and address. On the 17th August 1987 when the two motions came up for argument neither the defendants nor their counsel was present. The two motions were then struck out and I adjourned the case for judgment. It will then be observed that the defendants did not give their case the seriousness it deserves.’