Ozo Dr. Aneze Chinwuba & Ors V. Chief Benjamin Chinweze Morah (2016)
LawGlobal-Hub Lead Judgment Report
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
This is an appeal against the decision of the Anambra State High Court sitting at Awka (hereinafter referred to as the Lower Court), delivered by Hon. Justice H. O. Ozoh, J., on the 28th day of January, 2014. The suit which gave rise to the instant appeal, was initiated by the plaintiff/respondent vide the writ of summons and statement of claim filed on the 17th day of May, 2010, wherein he claimed against the defendants/appellants for the following reliefs:
(a) The sum of N100 Million being general, exemplary and punitive damages for the libel.
(b) An apology published in a very conspicuous portion of either of Vanguard, The Nation or Punch Newspaper.
The dispute that arose between the parties was anchored on an alleged defamatory letter which the plaintiff/respondent claimed was authored by the defendants/appellants wherein the plaintiff/respondent alleged that he was defamed. The defence of the defendants/appellants was based on the fact that, 1st defendant/appellant who purportedly signed the said letter/publication did not do so on behalf of the defendants
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institution (Ozo Awka Society), but rather the said 1st defendant/appellant signed the said letter/publication (Exhibit 1) on behalf of a separate and distinct organization which they called Stake-Holders For Peace Security And Good Rulership In Awka Town. The parties duly filed their pleadings, the necessary processes and documents which they sought to rely on, and the matter swiftly proceeded to hearing. The plaintiff/respondent called a single witness in addition to himself, and tendered several documents as exhibits in his bid to prove his case. The defendants/appellants in similar vein, called a single witness in addition to the 1st defendant/appellant, and tendered two (2) documents as exhibits in their defence. The case was duly heard by the learned trial Court. At the end of hearing, the learned counsel to both parties extensively addressed the Court in support of the case and the defence of their respective parties. At the end of it all, the learned trial judge after the giving due consideration of all the pieces of evidence before him, entered judgment partly in favour of the plaintiff/appellant in the following terms:
I have
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earlier held that Exhibit 1 was not authored by Ozo Awka Society. Exhibit 1 was authored by the First Defendant who signed same. He is liable as an individual. The 2nd to 4th Defendants are not liable at all. The defendants cannot be held jointly and liable for the act of the 1st Defendant who acted on his own without the authorization of Ozo Awka Society. (sic)
In sum, the case of the plaintiff succeeds in part and I therefore make the following orders:-
(1) I award the sum of 200,000 (Two hundred thousand Naira) against the 1st Defendant being general, exemplary and punitive damages for the libel.
(2) 1st Defendant shall publish an apology in a very conspicuous portion of the Vanguard Newspaper.
(3) I make no order as to costs.
The defendants/appellants were not satisfied with the said judgment, thus they appealed against the same vide a second notice of appeal filed on the 24th day of April, 2014, wherein the defendants/appellants complained against the said judgement upon six (6) grounds of appeal. They anchored their arguments in this appeal on the said notice of appeal.
The plaintiff/respondent on his own part was not completely satisfied with the said
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judgment and thus cross-appealed against the same vide a notice of cross-appeal filed on the 3rd day of April, 2014. The plaintiff/respondent/cross-appellants complaints against the said judgment were based on three (3) grounds of appeal.
In view of the nature of the case and its peculiar circumstance, the main appeal would be considered first in this judgment.
In accordance with the Rules of this Court, the parties filed and duly exchanged their respective briefs of argument. Henceforth in this judgment, the plaintiff/respondent/cross-appellant would be referred to as the respondent, while the defendants/appellants/cross-respondents would be referred to as the appellants.
The appellants brief of argument was prepared by Emeka Nwankwo, Esq. The said brief of argument was filed on the 23rd day of April, 2015. The respondents brief of argument on the other hand was prepared by Alexander Ifeanyi C. Agbogu, Esq., and filed on the 8th day May, 2015. In reply to the respondents brief of argument, the appellants filed an appellants reply brief on the 7th day of July, 2015.
The learned counsel to the appellants
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in the appellants brief of argument formulated two (2) issues for the determination of this appeal. The issues are as follows:
1. Whether the Lower Court was right to hold that the 1st appellant was liable to publishing Exhibit 1
2. Whether the respondent was at all defamed
The respondents counsel on his own part, also formulated two (2) issues in the respondents brief of argument. The issues are as follows: (1) Whether the Lower Court rightly held the 1st appellant as the author of Exhibit 1 (Ground 1 and 2)
(2) Whether the learned trial judge rightly held that Exhibit I was defamatory of the respondent (Grounds 3 and 4)
I have considered the two (2) issues formulated by learned counsel to both parties and found them materially the same, save for minor variation in the use of words. However, the issues formulated by the learned counsel for the respondent are more apt, and the same would be adopted by me towards the resolution of this appeal.
ISSUE 1
It is now settled in law that, it is the primary responsibility of the trial Court which saw and heard witnesses to evaluate the evidence and pronounce on
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their credibility or probative value of their evidence. This function is not primarily that of the appellate Court which neither heard the witnesses nor saw them to observe their demeanours in the witness box. Therefore, if a trial Court unquestionably evaluated the evidence and appraised the facts of a case, it is not the business of the appellate Court to substitute its own view for the views of the trial Court. See the cases of Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282; Mogaji v. Odofin (1978) 3 SC, 91 and Amadi v. Federal Republic of Nigeria (2008) 12 SC (Pt. III) 55. However, where the trial judge abdicated his sacred duty of evaluation of the evidence and the appropriation of weight thereto, or when he demonstrates that he had not taken proper advantage of his having heard and seen the witnesses testify, or base his decision on a wrong principle of law, the matter become at large for the appellate Court to evaluate the evidence, provided the exercises does not involve the credibility of the said witnesses. See Gbadamosi v. Dairo (supra).
In the instant case, the parties were ad idem on the basic point that the said alleged libellous
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publication/letter (Exhibit 1) was not authored by Ozo Awka Society or any person on their behalf. The central point of this issue lies in whether the 1st appellant who signed it was personally responsible for the signing of Exhibit 1 or on behalf of Stake-Holder for Peace, Security And Good Rulership In Awka Town (SFPSGRAT). It is the finding of the learned trial judge that the 1st appellant is not the secretary of Ozo Awka society. This finding of the Lower Court is not being appealed against in this appeal, thus, it is deemed admitted. It was also the finding of the Lower Court that Ozo Awka Society was not responsible for the publication of Exhibit 1. This finding was also not contested in this appeal; thus, it is also deemed admitted. The main question that needed to be answered is: Whether the 1st appellant is personally responsible for alleged defamatory Exhibit 1 or SFPSGRAT At all material times the appellants have been maintaining that the 1st appellant even though signed the said exhibit 1, but he did so on behalf of SFPSGRAT. This point was averred to by the appellants in their statement of defence and evidence led in proof thereof. See paragraph
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2 and 5 of the said statement of defence and 1st appellant (DW1) written statement on oath. This point was further reaffirmed by the said DW1 during cross examination. See page 209 of the record of appeal.
It is the correct position of the law as the learned counsel to the respondent has submitted that documents speak for themselves. The learned respondent counsel further contended that it is clear from Exhibit 1 that, it was the 1st appellant who authored same on behalf of either himself or for the Ozo Awka Society (being represented by the appellants). The argument of the learned counsel is hinged on the fact that the said Exhibit 1 was written with the letter head of the Ozo Awka Society, but signed by the 1st appellant as their secretary. This Court has in the case of Nwachukwu v. Boji-boji Microfinance Nig. Ltd. (2013) LPELR 20309 (CA) 1 @ 25, per Sidi Dauda Bage, JCA, held as follows:
Now the question is, what is the significance of a heading of a document or a letter head of a document, vis-a-vis its content. The law has always been that, the heading of a document or even a letter head as in the instant case, is of no significance
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or importance. What matters is the content of such document
In view of the above cited case, I do not agree with the learned respondents counsel contention that the Ozo Awka Society is liable for Exhibit 1 merely because its letter head was used in authoring the said Exhibit 1. Also, the Supreme Court, per Nnaemeka Agu, JSC, in the case of Kimdey & Ors. v. Military Governor of Gongola State & 7 Ors. (1988) 2 NWLR (Pt. 77) 445 @ 474 wherein in his concurring contribution to the lead judgment stated thus:
In a case like this where the documentary evidence before the Court goes both ways and one side has a more substantial support of the oral testimony before the trial Court, that set of documentary evidence which has more substantial support of the oral testimony outweighs the other. If, as is the case here, the trial Court prefers that set of documentary evidence the appellate Court should not interfere. I need not repeat that there is a presumption that a trial judges decision on facts is correct, findings on primary facts being essentially within the province of the Court of trial. For one to appeal successfully on
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facts, he must affirmatively displace that presumption: See Bakare Folorunso v. I. A. Adeyemi (1975) 1 N.M.L.R. 128; Williams v. Johnson (1937) 2 W.A.C.A. 253.”
In the instant case the learned trial judge after due consideration held that the Exhibit 1 emanated from SFPSGRAT, and the 1st appellant was found to be its secretary. In view of the above Supreme Court authority, I am constrained from interfering with the finding of the Lower Court in this respect. This more so on the fact that the said SFPSGRAT forum was boldly written on Exhibit 1 and its address also provide. Again, it is also my firm view point that the above finding of the Lower Court was boldly based and supported by oral testimonies of PW1, PW2 and DW1. See pages 198, 199, 200, 209 of the records of appeal and paragraph 2 of the DW1 written deposition or statement on oath at page 51 of the record of appeal.
Having agreed and as found by the learned trial judge, that Exhibit 1 emanated from SFPSGRAT and the 1st appellant as its secretary, the pertinent question is: Whether the 1st appellant could be held personally responsible for an act which he claimed was authorized by the said SFPSGRAT forum
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to which he is merely its secretary? My answer to this would be in the NEGATIVE. My position is further strengthened by the fact that the respondent knew of the existence of the said SFPSGRAT organisation/forum and he admitted under cross examination that the said Exhibit 1 was authored by the said SFPSGRAT forum. See page 200 of the record of appeal. PW1 (respondents witness) also admitted knowing the 1st appellant as one of the members of the said SFPSGRAT forum. However, the 1st appellant was not sued as the secretary of the said SFPSGRAT forum or in his personal capacity; he was in fact sued as one of the representative of Ozo Akwa Society. In the light of the above, I do hereby agree with the appellants counsel that the Lower Court did not properly evaluate all the pieces of evidence adduced before it and misdirected itself by holding the 1st appellant personally responsible for the alleged defamatory publication/letter (Exhibit 1). This issue is hereby resolved in favour of the appellants.
ISSUE 2
The Supreme Court, in the case of Guardian Newspapers Ltd. & Anor. v. Rev. Pastor C. I. Ajeh (2011) LPELR-1343 defined libel:
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as a method of defamation, expressed by print, writing, picture or signs; any publication that is injurious to the reputation of another, a false and unprivileged publication in writing of a defamatory material; a malicious written or printed publication which tends to blacken a persons reputation or to expose him to public hatred or ridicule, contempt or to injure him in his business or profession Corabi v. Curtis Publication (441 pa. 482, 273 A. 2d 899, 904.
Also, the apex Court, per Belgore, JSC, in the case of Esenowo v. Ukpong (1999) 6 NWLR (Pt. 608) 611; (1999) LPELR-1166, defined libel to mean:
the publication of false and disparaging matter against a person to a third party (Sketch Publishing Co. Ltd. v. Ajagbemokeferi (1989) 1 NWLR (Pt. 100) 678.
The respondents case was that he was vide Exhibit 1 defamed by referring to him in the said Exhibit 1 as head of militants. He pleaded in paragraph 8 of his statement of claim that he shall rely on the dictionary meaning of the word militant to contend that it is not a complimentary remark, and is a word associated
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with all sorts of vices of stealing, destruction of properties, looting, kidnapping, murder and the sorts, especially in the context of Nigeria (underlining added). However, in his written deposition and throughout the gamut of his evidence he failed to neither put forward the said dictionary meaning of the word militant nor its meaning in the Nigerian context. It is trite law that he who asserts is saddled with the responsibility of proving his assertion on the basis of credible and admissible evidence. See Sections 131, 132, 133, and 134 of the Evidence Act, 2011.
The above notwithstanding, I have taken the pain to examine the dictionary meaning of the word militant. In Oxford Advanced Learners Dictionary (International Student Edition). 7th Edition, page, 930, the word militant was defined to mean:
using, or willing to use, force or strong pressure to achieve your aims, especially to achieve social or political change:
Also, the New International Websters Dictionary and Thesaurus of the English Language, page 621, defined the word Militants.
1. Pertaining to conflict with
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opposing pavers or influences.
2. Of a warlike or combative tendency; aggressive.
n. A combative person; a soldier.
I have carefully examined the above definition of militant vis-a-vis the contention of the respondent and found that, the said word is not defamatory in the light of what the respondent averred in his statement of claim. The respondents contention based on paragraph 8 of his statement of claim appears to be hinged more on the Nigerian meaning of the word militant or the context in which it is popularly being used. However, he failed to so define the word in the said social/local context or adduce any evidence to buttress the said expression. The failure of the respondent to so define the word militant in the said Nigerian context is fatal to his case. See the case of Esenowo v. Ukpong (supra); and Isikwenu v. Iroh (2013) 11 NWLR (Pt. 1365) 256. It is thus my firm view point that the word militant in the light of the dictionary meaning quoted above, cannot be held to be defamatory of the respondent. Thus, this issue is hereby resolved in favour of the appellants.
It is trite that to succeed in an action for libel, the following
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elements must be conjunctively established:
1. That there was publication;
2. That the said publication was defamatory;
3. The said publication was authored by the defendant(s)
4. The publication referred to the plaintiff conclusively.
5. The said publication was in a permanent form;
6. The said publication was published to a third person or party.
See the cases of Skye Bank Plc & Anor. v. Chief Moses Bolanle Akinpelu (2010) 9 NWLR (Pt. 1198) 179; Otop & Ors. v. Ekong & Ors. (2005) LPELR 11391; Union Bank of Nigeria Ltd. v. Oredein (1992) 6 NWLR (Pt. 247) 355.
It has earlier been established in this judgment that elements numbered as 2 and 3 above were not successfully proved by the respondent. In this circumstance, it is my firm view point that the respondent has woefully failed to successfully establish his claim. This appeal is thereby found to be meritorious, and accordingly allowed. Consequently, the decision of the Lower Court in Suit No. A/60/2010 delivered on the 28th day of January, 2014 is hereby found to be erroneous and it is accordingly set aside. The case of the respondent is hereby dismissed. I make no order with regard to costs.
CROSS APPEAL
The main
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appeal having been determined in the manner stated above, the cross-appeal would now be considered. In prosecution of this cross-appeal, the learned counsel to both parties filed their respective briefs of argument.
The plaintiff/respondent/cross-appellant would for purpose of this cross-appeal be referred to simply as the cross-appellant, while the defendant/appellant/cross-respondent would be referred to as the cross-respondent.
The cross-appellants brief of argument was prepared by Alexander Ifeanyi C. Agbogu Esq., and filed on the 8th day of May, 2015. The cross-respondents brief of argument was prepared by Emeka Nwankwo Esq. and filed on the 7th day of July, 2015. In reply to the cross-respondents brief of argument, the cross-appellants counsel filed a reply brief on the 10th day of July, 2015.
For the resolution of this cross-appeal, the learned counsel for the cross-appellant distilled two (2) issues for the determination of cross-appeal. The issues are as follows:
(1) Whether Ozo Awka as a body could in view of Exhibit 1 and 3 be held liable jointly with the 1st cross-respondent for publication of Exhibit
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1 (Grounds 1 and 2)
(2) Whether the sum of N2000,000.00 awarded as damages is adequate in view of the totality evidence (sic) of the cross-appellants personality and the cross-respondents conduct? (Grounds 3).
The cross-respondents counsel on his own part in the cross-respondents brief of argument also distilled two (2) issues for the determination of this cross-appeal. The issue are as follows:
1. Whether the Lower Court was right to have held that the Ozo Awka Society did not author Exhibit 1
2. Whether the sum of N200,000.00 (Two hundred thousand naira) awarded by the Lower Court in favour of the cross appellant as damages is adequate
The two (2) issues formulated by learned counsel to both parties are materially the same, save for the variation in the use of words. However, the two issues as couched by learned counsel to the cross-appellant are more encompassing and apt, thus, same would be adopted for the determination of this cross-appeal.
ISSUE 1: CROSS – APPEAL
I have earlier in this judgment affirmed the decision of the Lower Court that the cross-respondents (Ozo Awka Society) were not liable for the
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publication of Exhibit 1. It was my finding that even though Exhibit 1 was authored with the letter head of the Ozo Awka Society (represented by the cross-respondents), it could not be held liable for the said publication. It was also my finding that notwithstanding the fact that 1st cross-respondent signed the said Exhibit 1, he could not be held personally liable for it, because it was established in evidence on record that, he signed the same on behalf of another organisation (Stake-Holders For Peace, Security And Good Rulership In Awka Town-SFPSGRAT). The reasoning which I had recourse to in respect of the said findings, as earlier held with regard to issue one of the main appeal is hereby re-adopted in resolving this issue. Consequently, this issue is hereby resolved against the cross-appellant.
ISSUE 2: CROSS – APPEAL
It is pertinent to observe herein that the cross-appellant has earlier in this judgment been found not to have successfully established his claim for libel based on the pleadings and evidence contained in the printed record placed before this Court. In this circumstances, the damages awarded in favour of the cross-appellant is deemed set
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aside. The above notwithstanding, it is pertinent to state that the power to award damages is entirely within the discretion of the trial Court. An appellate Court may only interfere with such an award of damages made by the trial Court, if and only if it was found to be manifestly too high, ludicrously too low and or is based on wrong principles of law. See Adim v. N.B.C. & Anor. (2010) 9 NWLR (Pt.1200) 543. It is also trite that an appellate Court ought not to upturn an award of damages merely because, if it had tried the matter, it would have awarded a higher or lesser amount. See Williams v. Daily Times (1990) 1 NWLR (Pt. 124) 1 and Adim v. N.B.C. & Anor, (supra). Thus, even if it was found that the cross-appellants case was successfully established, this Court would still have been constrained and or restrained from interfering with the damages awarded in favour of the cross-appellant by the Lower Court, because the cross-appellant has not placed any material before this Court to establish that the said damages was in fact too low. This is more so, in the instant case whereby the cross-appellant did not adduce any evidence to show his
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previous financial standing and vividly demonstrate how he has been adversely affected financially by the said alleged defamatory publication. In this regard this issue is also resolved in favour of the cross-respondent.
Having resolved the issues formulated for the determination of this cross-appeal in the manner reflected above, it is therefore my firm standpoint that this cross-appeal is seriously unmeritorious and it is accordingly dismissed. The judgment of the Lower Court and the damages awarded in favour of the cross-appellant are hereby set aside by me. No order is made with regard to costs.
Other Citations: (2016)LCN/8937(CA)
