Professor Kingsley Owoniyi Ologe & Ors. V. New Africa Holdings Limited (2013)
LAWGLOBAL HUB Lead Judgment Report
WALTER SAMUEL NKANU ONNOGHEN, J.S.C.
This appeal is against the judgment of the Court of Appeal Holden at Abuja Division in appeal no. CA/A/81/98 delivered on the 13th day of February, 2002 dismissing the appeal of appellant against the judgment of the Federal Capital City High Court, in suit No.FCT/HC/CV/572/94 in which the court entered judgment for the plaintiffs, now appellants before this court.
The appellants, as plaintiffs instituted the action against the respondent claiming damages for libel arising from a publication in the Democrat Newspaper published by the respondent in its edition of 27th June, 1994. The respondent raised the defence of qualified privilege.
In its judgment the trial court found that the defence of qualified privilege availed the respondent but went on to award damages to the appellants in the sum of N120,000.00.
Being dissatisfied with the judgment, appellants appealed to the lower court while the respondent cross appealed against the award of N120,000.00 damages.
The lower court held that the publication in question was not defamatory of the appellants and as such the trial court was in error in awarding the damages complained of, thereby dismissing the appeal and allowing the cross appeal. The instant appeal is against the said judgment, the issues for the determination of which have been identified by learned counsel for appellants, IKECHUKWU EZECHUKWU ESQ in the appellants’ brief filed on 6th July, 2004 and adopt in argument of the appeal on the 15th day of January, 2013 as follows:-
“1. Whether the publication of 27th June, 1994 in the democrat by the respondent was a fair and accurate copy of the Press Release issued by the University of Abuja i.e. Exhibit “B” and if not whether the said publication is defamatory of the appellants (Ground 1).
- Whether the word “admitted” has the same meaning with the word “committed” within the con of the Press Release and the publication of 27th June, 1994 and, if not, whether the substitution of the word “committed” with the word “admitted” in the said publication affected the substance of the Press Release (Ground 2).
- Whether the defence of qualified privilege availed the defendant/Cross-Appellant”
Learned counsel for respondent OLABISI O. SOYEBO ESQ also formulated three issues for determination, which issues are substantially the same as those of appellants reproduced supra. I therefore have no need to reproduce them herein.
In arguing Issue 1, learned counsel for appellants submitted that the publication of 27th June, 1994, Exhibit “A”, which purports to be a reproduction of the University of Abuja Press Release is defamatory of the appellant because it is not a fair and accurate copy of Exhibit “B”; that respondent falsely and maliciously and without any reasonable or probable cause substituted the phrase “having committed” arson, looting etc with the phrase “having admitted” acts of arson, looting etc; that the use of the substituted phrase made Exhibit “A” false and materially and substantially changed the meaning of the whole Press-Release; that whereas the phrase “having committed” conveys the impression that the acts complained of are mere allegations and subject to disputation, etc, etc, the phrase “having admitted” portrays appellants as self-confessed criminals i.e. arsonists and looters.
It is the further submission of learned counsel that the impression conveyed by Exhibits “A” that appellants are self confessed criminals cannot be anything but defamatory as the same portrays appellants to the parents of their students and the reading public as:-
(i) A disappointment and a disgrace to their fellow Dons and society who look upon them as Icons of high moral rectitude.
(ii) That the society’s trust in them that made them entrust the guidance and education of their children upon their hands was largely misplaced.
Relying on Okolo v. Midwest News Papers Corporation (1977) 1 S.C 23 at 38, counsel submitted that the substitution of the phrases made Exhibit “A” false being an inaccurate reproduction of Exhibit “B” and therefore defamatory of the appellants and urged the court to resolve the issue in favour of the appellants.
On his part, learned counsel for respondent reproduced Exhibit “A” and stated that a comparison of Exhibit “A” and “B” show that the two publications were the same, the only difference being in the substitution of the word “admitted” for “committed” in paragraph 1 of the said Exhibit “A”; that where the whole report is a substantially accurate account of what took place, the fact that there are few slight inaccuracies is immaterial, particularly where the inaccuracy is not of a substantial nature, relying on Emeagwara v. Star Printing & Publishing Co. Ltd. (2000) 10 NWLR (Pt.769) 489 at 504 – 505; that the publication be viewed liberally as there was no malicious intention of defaming the appellants; that the court should hold that the publication was a fair and accurate report; that the test for the determination of the issue as to whether the word used in a publication is defamatory is objective; that is, how a reasonable man coming in contact with them will understand them, relying on Dimbo v. Idogboe (1983) 1 SCNLR 25 at 45: that any reasonable man would not understand it to be libelous and urged the court to resolve the issue against appellant.
It should be noted that the lower courts are in agreement in their finding that the publication complained of is not defamatory of the appellants though the trial court erred in going further, after finding that the defence of qualified privilege availed respondent to award damages which was rightly set aside, in my view by the lower court in the judgment now on appeal before us. A defence which the court finds established is a complete answer to the case of the plaintiff which absolves the defendant of any liability on the claim. There is, however, no appeal against the decision of the lower court setting aside the award of damages anyway.
In the instant appeal, the issue under consideration is whether the lower courts are right in their concurrent findings as regards the defamatory nature of the publication complained of.
Both parties and the lower courts agree that Exhibit “B” was altered while being reproduced in Exhibit “A” by the respondent by the substitution of the words “having admitted” in Exhibit “A” for “having committed” in Exhibit “B”. It is the substitution of the word “admitted” for “committed” that appellants contend makes the publication libelous and consequently condemnable in damages. What do the publications state
Exhibit “A” was published at page 2 of the 27th day of June, 1994 issue of the Democrat Newspaper Published by the respondent and it runs thus:-
“The Abuja University on Thursday announced the suspension of five professors and seven other staff of the institution for their alleged role in the February student unrest that led to the closure of the university. The University Registrar and Secretary to the Governing Council, Mallam Yakubu H. Habi said in a statement that the decision was carried out in line with the provision of Decree No.106 of 1992 that established the institution and the regulation governing the services of senior staff of the university. The panel report according to the statement indicated that all persons identified as having admitted acts of arson, looting and all those persons identified as having played roles in aiding and abetting arson be charged to a special tribunal (Miscellaneous Offices) as prescribed in Decree 20 1984 as amended by Decree 22 of 1986.
Those suspended, are Professors A. H. Ekpo, M. A. Owoade, K. O. Ologe; S. O. Tyoden and A. A. Olatunde, others are Dr. Y. B. C. Omele; Miss Folasade Saba; Mr. Kwaghkondo Agber; Mr. Musah A. Salami; Mr. Godwin I. Itegi and Mr David Aiyejina”. Emphasis supplied by me.
On the other hand, Exhibit “B” which is the Press Release issued by the University Authorities in relation to the incident and from which Exhibit “A” supra is meant to be a copy, is the exact replica of Exhibit “A” except the words “having admitted” in Exhibit “A” are replaced by the words “having committed”; which appellants contend imputes that appellants have admitted the commission of a criminal offence, which makes same defamatory as same is not true/connect.
What did the lower court find/hold as regards this issue At pages 120 – 121 of the record, the court stated, inter alia, as follows:-
“There is no dispute as to the fact contained in Exhibit “A”. Nor is there a denial that the Press Release emanated from the University of Abuja. It has also been shown that the respondent was issued with the Press Release by the University with other media organizations and it was his dirty to convey such information to the public.
In the cases of this nature, the publication has to be an accurate and fair report of what transpired and needs not be verbatim or word for word. If what is stated is substantially a fair and accurate account of what is sought to be conveyed then the statement cannot be said to be defamatory – Emeagwara v. Star Publishing Co. (2000) 5 SCNJ 175.
In the instant case, even if Exhibit “A” had contained a verbatim report of the Press Release Exhibit “B” the same facts would still have been conveyed to the public “having committed” and “having admitted” would not have changed the essence of the publication or conveyed a different meaning to the person reading the publication.
The publication being a fair and accurate copy of the Press Release in my view is not defamatory of the plaintiffs. The substitution of the two letters “admitted” and “committed” does not in essence change the substance of the Press Release. The publication must be false to make the respondent liable in defamation, there was no such evidence before the lower court. In the circumstance, I uphold the trial court’s finding that defamation per se has not been fully established by the appellant against the respondent”.
I hold the considered view that the lower court cannot be faulted in its holding supra. It should be noted that Exhibits “A” and “B” do not only concern or talk of, “all persons identified as having admitted [committed] acts of arson, looting” but also “all those persons identified as having played roles in aiding and abetting arson” etc as being the persons suspended by the University Authorities. The appellants were neither listed under “all persons identified as having admitted acts of arson” nor under “all those persons identified as having played roles in aiding and abetting arson….” Appellants were listed as those suspended as a result of having been “identified as having admitted acts of arson,” etc “and all those persons identified as having played roles in aiding and abetting arson”. Appellants have however not complained of their being “identified as having played roles in aiding and abetting arson” which description is a hue reproduction of Exhibit “B”, the Press Release. They therefore do not consider their being described as “persons identified as having played roles in aiding and abetting arson” as defamatory of their character!!!
I therefore agree with the lower courts that the publication complained of is an accurate and fair report of what transpired which need not be verbatim or word for word: It is substantially a fair and accurate account of what is sought to be conveyed which the law considers not to be defamatory – see Emeagwara v. Star Publishing Co. (2000) 5 SCNJ 175. It is my further view that in the circumstances of the facts of this case, the substitution of the words “admitted” for “committed” has not in essence changed the tenor, character and substance of the Press Release, Exhibit “B’
On Issue 2, learned counsel for appellants submitted that the words “admitted” and “committed” do not mean the same thing; that an allegation of commission of a crime remains allegation which may or may not lead to a conviction while the word “admitted” as contained in Exhibit “A” conveys the impression of admission of the crimes in question; that the lower court was in error in holding that the substitution of the words does not change the substance of the Press Release and urge the court to so hold.
On his part, learned counsel for the respondent submitted that the lower court was right in its holding and that the question as to whether the words complained of are capable of conveying defamatory meaning is a question of law to be decided by the court not the appellants and that the test to be applied in determining the question is objective – how a reasonable man understands the words or what he understands the words to mean, relying on Dimbo v. Idogboe (1983) 1 SCNLR 25 at 45; that a reasonable man would not understand the publication to be defamatory and urged the court to resolve the issue against appellants.
I had, during the consideration of Issue 1, supra, substantially dealt with this issue and had clearly stated my agreement with the finding/holding of the lower court complained of in this issue. I stand by that holding.
The above notwithstanding it should be borne in mind that the test to be applied by the court in determining whether a publication is libelous or not is not that of highly educated and accomplished professors of various academic disciplines, such as the appellants, as suggested by counsel for appellants in the appellants’ brief but that of reasonable man on the streets who comes into contact with the words in the publication. The question is whether such a reasonable man reading Exhibits “A” and “B” would find Exhibit “A” defamatory of the appellants, which I had earlier, along with the lower courts, held that he would not as, the same is plainly not defamatory.
The reasonable men to be used by the judge in determining the question whether the words are defamatory in their ordinary meaning are men of ordinary intelligence while the publication has to be considered as a whole – see Okolo v. Midwest Newspapers Corporation (1977) 1 SC 33 at 39 – 40: Dumbo v. Idugboe (1983) 1 SCNLR 29 at 46 – 47.
In considering the words in a libelous publication, it is the broad and general impression conveyed by the publication complained of that has to be considered not the meaning of each word under analysis taken out of con – see Lewis v. Daily Telegraph Ltd. (1964) AC 234 at 285 per LORD DEYIN. It is also very important to note that the law is settled that it is the words of the publication that must be construed as a whole, not a single word as canvassed before us – see Okolo v. Midwest Newspapers Corp. supra at 41 – 43 per OBASEKI JSC.
It is settled law that:-
“Words are not defamatory, however much they may damage a man in the eyes of a section of the community, unless they also amount to disparagement of the reputation in the eyes of right thinking men generally. To write or say of a man something that will disparage him in the eyes of a particular section of the community but will not affect his reputation in the eyes of the average right thinking man is not actionable within the law of defamation”, per IGUH JSC in Registered Trustees of Amorc v. Awoniyi & Ors. (1994) 7 NWLR (Pt.355) 154 at 194.
In the instant case, appellants counsel based his submission as regards the test to be used in determining whether the publication complained of is defamatory of appellants on the eyes of the academic community of professors in different fields of learning rather than the eyes of the average right thinking man in the Nigerian Society.
In the circumstance, I resolve Issue 2 against appellants.
On the third and final issue, learned counsel for appellants submitted that where a defendant decides to publish falsehood, as in the instant case, the defence of qualified privilege is not open to it; that for the defence to avail respondent, the publication, Exhibit “A” must be a fair and substantially accurate reproduction of the Press Release, Exhibit “B”, which is not the case in the instant case.
Learned counsel for respondent submitted that where a respondent succeeds in proving that the publication is fair and accurate, it is prima facie privileged and the appellants will only succeed if they prove that respondent was actuated by malice or some other indirect motive, relying on Section 9(1) Defamatory Act, Cap 492, Laws of the Federation of Nigeria, 1990; Emeagwara v. Star Printing and Publishing Co. Ltd supra at 507 – 508; that appellants have not shown any malicious intention on the part of the respondent, and urged the court to resolve the issue against appellants.
It is clear that this issue has become spent in view of the resolution of the two issues supra. Once the words or publication complained of has/have been found not to be libelous/defamatory that is the end of the matter as the occasion in which the publication was made becomes very irrelevant. It is when a publication is considered defamatory that one goes further to consider the defence of the defendant/respondent herein.
In any event the lower courts have concurrently found that the publication was privileged and I have no reason whatsoever to disturb the said findings as no special circumstance warranting the interference of this court with the said findings have been made out by learned counsel for appellants.
Appellants have also not produced evidence of malice on the part of respondent in making the publication, which I have held to be a fair and substantially accurate publication of the Press Release, Exhibit “B”.
In conclusion, I find no merit whatsoever in the appeal which is accordingly dismissed by me with costs which I asses and fix at N100,000.00 against appellants in favour of the respondent.
Appeal dismissed.
SC.109/2004
