Punch Nigeria Limited & Anor V. Dayo Adewuyi & Anor (2001)
LawGlobal-Hub Lead Judgment Report
TOM SHAIBU YAKUBU, J.C.A.
The judgment rendered at the Lagos State High Court of Justice, holden at Ikeja Division, on 20th September, 2012, partly in favour of the 1st respondent and also partly against the appellants, prompted this appeal. By a Writ of Summons and Statement of Claim both dated 17th July, 2007 and filed on the 18th July, 2007, the 1st Respondent (As Claimant) brought an action against the Appellants and the 2nd Respondent before the trial Court for damages for libel, arrears of salary and allowance for the months of April 2006 to February 2007, plus leave allowance and an order of perpetual injunction restraining the Defendants their privies, servants and personal representatives from further publishing any form of adverse publication against the Claimant in its newspaper or any other newspaper.
The 1st Respondent was an Assistant Advert Manager in charge of the 1st Appellant’s office at Abuja, FCT, until he voluntarily resigned his appointment with the 1st Appellant on the 21st of February, 2007. While in the employment of the 1st Appellant, the 1st Respondent (Claimant)
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exercised his discretion by granting credit adverts to notable clients of the 1st Appellant like NEPA, Security and Exchange Commission among others which practice is a common practice in Newspaper and entertainment industries. Unfortunately, some of the credit adverts that the 1st Respondent authorised were not paid for on time and the Appellants expressed displeasure at the volume of credit that had been granted.
Consequent upon the displeasure of the Appellants, the 1st Respondent was instructed to recover all the monies due from the credit adverts he had authorised from the clients. The total amount credited to the 1st Respondent as credit advert totalled N7, 013,029.75 and the 1st Respondent recovered the whooping sum of N5,704,465.99 leaving a balance of N1,305,563.76.
The 1st Respondent was in constant communication with the Appellants and was still in the 1st Appellant office in June 2007 and met with Mr. A. J. Adeniran; Senior Internal Auditor, Mr. Cosmos Fasole; Legal Officer and also discussed with the Secretary to the Managing Director. Apart from being in constant touch with the 1st Appellant, the 1st Respondent had also
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exchanged correspondences with the Appellants via Memos and letters admitted and marked as Exhibits C3, C7, C10, C12-C14 and C16-C18.
The 1st Respondent was therefore surprised when his attention was drawn to the 1st Appellant’s publication of 6th, 7th and 8th July 2007 in its paper to the effect that he was wanted by the 2nd Respondent, Commissioner-of-police, F.CT. Command Abuja, for criminal breach of trust. The 1st Respondent averred that the action of the 1st Appellant and 2nd Respondent in publishing the notice was masterminded by the 2nd Appellant out of malice. That the fact that 1st Respondent had been in touch with the Appellants in all the period leading to the publication and that the 1st Respondent had not been invited by the F.CT. police command before then made the publication uncalled for and unnecessary.
It is the case of the 1st Respondent that the malicious publication which was not restricted to Nigeria but to the whole world, had cost him his freedom in the society, belittled him in the eyes of family and friends, caused him to become an object of ridicule before reasonable members of the society who looked at him with disdain
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and his reputation had been dragged in the mud.
The Appellants (Defendants at the trial Court) filed a Statement of Defence where they raised the defence of qualified privilege over the publication. The Appellants also counter claimed for the sum of N1,308,563.76 being the balance due to them from the credit adverts, the sum of N1,470,905.53 as further sum lost, post-judgment interest on the said sums at the rate of 15% per annum until full satisfaction and the cost of the action.
The 1st Respondent called three (3) witnesses whilst the Appellants called one (1) witness. The trial Court gave judgment partly in favour of the Appellants and partly in favour of the 1st Respondent. The Appellants being dissatisfied with the decision of the Trial Court, appealed against it.
The appeal was anchored on four grounds. In order to activate the prosecution of the appeal, the appellants filed their brief of argument on 6th March, 2017 which was deemed filed by this Court on 4th February, 2019. The 1st respondent’s brief of argument filed on 24th January, 2019, was also deemed filed by this Court on 4th February, 2019.
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The Appellant’s learned counsel – Tesleem Adewuyi, Esq., nominated a sole issue for the determination of the appeal, thus:
Whether or not the learned trial judge was right when he decided the Claimant/1st Respondent’s claims for libel outside the pleadings and/or the issues properly joined/contested by the parties in the pleadings upon which the trial was conducted (Grounds 1, 2 and 3).
On his part, the 1st Respondent’s learned counsel – Bamidele Ibironke, Esq., also suggested a sole issue for the resolution of the appeal, to wit:
Whether the learned trial judge was right to have held that the Claimant/1st Respondent proved his claims for libel against the Appellants.
In my consideration and determination of the appeal, I shall be guided by the sole issue suggested by the learned 1st respondent’s counsel, because it is concise and straight forward. It is noteworthy that the 2nd Respondent did not file any brief of argument.
The main grouse of the appellants against the judgment in question is that the 1st respondent did not plead what the words used in the alleged offensive publications concerning him, had imputed, but that since the publication of the
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alleged matter about him, he could not move freely because he had become an object of ridicule before reasonable members of the society, who began to look at him with disdain. It was contended that the 1st respondent never averred in any part of his pleadings that the publication in question touched on his reputation as a “person involved in scam and shady deals” as erroneously held by the learned trial judge and the parties never joined issues on the innuendo captured by the learned trial judge in his judgment. Furthermore, it was contended that if the 1st respondent had desired to extend the ordinary meaning of the words used in the publication that he had complained about, he ought to have pleaded such extended meaning, which he did not. The appellants insisted that the words used in the said publication were fair and protected by the defence of qualified privilege which was pleaded by them in their statement of defence/counter- claim. And that the Public Notice issued by the 2nd respondent at appellant’s instance was of public interest, hence it was not actuated by malice, which was not proved by the 1st respondent.
A resume’ of the submissions of
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the learned counsel to the 1st respondent is that the publication in question which was at the instance of the appellants, had lowered the 1st respondent’s estimation in the eyes of right thinking members of society generally and injured his financial credit. Furthermore, that because of the said publication, the 1st respondent had been discredited in his office, trade and in the print media industry, particularly in the advert department where he had worked for about ten years while in the services of the 1st appellant. It was further submitted that the interpretation given by the learned trial judge, to the words used in the publication, was what any reasonable person would say of the 1st respondent upon reading the said publication. The 1st respondent’s learned counsel insisted that the appellants were actuated by malice in prompting the publication about him and that since the contents of the said publication were false, the law presumed malice against the 1st respondent by the appellants, which the former needed not to plead in his pleadings. And that where malice was imputed to the appellants, their defence of qualified privilege was no longer available
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to them, because it had collapsed.
Resolution:
In order to prove a libellous publication, and sustain an action for libel, the plaintiff must establish that: (i) There was a publication of the offending article or letter; (ii) The publication was in writing; (iii) The publication was with respect to the plaintiff; (iv) The publication was false and defamatory of the plaintiff; (v) The publication was made by the defendant; (vi) The publication was made to another person(s) apart from the plaintiff and (vii) The defendant had no justification or lawful excuse for the publication against or about the plaintiff. Guardian Newspapers Ltd & Anor v. Pastor Ajeh (2011) 10 NWLR (pt. 1256) 574 at 588 589 (SC); (2011) LPELR 234 (SC); Iloabachie v. Iloabachie (2005) 5 SCNJ 84; (2005) 5 NWLR (pt. 656) 178; (2005) 35 WRN 1; Amalgamated Press of Nig. Ltd v. Chief Festus Sam Okotie Eboh (1963) 2 SCNLR 270. The Supreme Court per his Lordship, A. Obaseki, JSC, in Chief O. N. Nsirim v. E. A. Nsirim (1990) 3 NWLR (pt. 138) 255, on the essence of publication of an offending article or letter, succinctly stated, thus: By publication is
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meant the making known of the defamatory matter to some person other than the person to whom it is written. The writing of a libel to the person or party libelled does not constitute publication for the purpose of a civil action. ….. It is the reduction of the libellous matter to writing and its delivery to any person other than the person injuriously affected thereby that is publication. The name of the person to whom delivery of the libellous matter was made, must be pleaded. In his own contribution to the lead judgment (Nsirim v. Nsirim) supra, his Lordship, Belgore, JSC (as he then was) stated that: The cardinal principle of libel in law is that there must be publication of the libellous matter to a third person other than the person libelled, this is because a persons reputation is not based on the good opinion he has of himself but the estimation in which others hold him. Furthermore the Supreme Court in Nsirim v. Nsirim (supra) reiterated that publication of a defamatory material is not merely that the defamation was written of the plaintiff, but that it was published or conveyed to a third person; who will give such
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evidence. See also The Registered Trustees of the Rosicrucian Order (ARMORC) Nigeria v. Henry Awoniyi (1994) 7 8 SCNJ (pt. II) 390 at 419, 427. The law is settled that it is the general impression conveyed by the publication complained of that has to be considered and not the meaning of each word under analysis taken out of con, that is, the whole article should be considered and not just excerpts therefrom per Lord Devlin in Lewis v. Daily Telegraph Ltd (1964) A. C. 234 at 285. The publication must be construed as a whole.J. I. Okolo v. Midwest Newspapers Corp. (1977) 1 SC 33 at 41 43. Therefore, where the words are ordinary English words and are plain and unambiguous in their meaning …… it would be usurping the province of the jury or the judge ……. to call a witness to say what he understood the word to mean per Lord Denning, M. R. in Slim v. Daily Telegraph Ltd & Ors (1968) 1 All E. R. 497 at 502. Further see Sketch v. Ajagbemokeferi (1986) 1 NWLR (pt. 100) 678 at 709 per Agbaje, JSC. So the question to be considered is: ….would the words tend to lower the plaintiff in the
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estimation of right-thinking members of society. Thus, in the final analysis, whether the statement complained of is defamatory or not will surely depend upon the probabilities of each individual case and upon the natural tendency of the publication having regard to the surrounding circumstances – per Oputa, JSC inFred Egbe v. Hon. Justice J. A. Adefarasin (1987) 1 SC 1 at 45. On the part of the publisher of the publication, it is the law that if he made the publication, bonafide, on a subject matter in which he has an interest and which the person to whom he is communicating, has an equal or corresponding interest or duty, albeit that the publication may contain a sting of libel, such a publication would be considered as privileged. However, if the plaintiff feels that the publication was malicious of him, then the plaintiff must adduce evidence to establish the existence of malice. See Gatley on Libel and Slander, 7th Edition, at page 6;Prof N. Adeniji & Anor v. Prof B. Fetuga (1990) 5 NWLR (pt. 150) 370 at 385; Adam v. Ward (1917) A. C. 318.
Generally, the tort of defamation has to do with infliction of injury to the reputation of the
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person resulting from words spoken or written by someone against him. Hence, defamation has the following effects:
(a) To lower the plaintiff in the estimation of right thinking members of the society; or
(b) To expose him to hatred, contempt or ridicule; or
(c) To cause other persons to shun or avoid him; or
(d) To discredit him in his office, profession or trade; or
(e) To injure his financial credit.
Therefore, for a plaintiff to succeed in an action for libel, he must establish by evidence, showing the adverse effects of the defamatory publication on him. In the instant case, the learned trial judge found that there was sufficient evidence proffered by the 1st respondent to the effect that the publication by the appellants in the 6th, 7th and 8th July, 2007 edition of the 1st appellant, had clearly called the integrity of the 1st respondent into question. So, his Lordship came to the conclusion that the public notice issued by the 2nd respondent, at the appellant’s’ instance, was defamatory of the 1st respondent. I have considered the appellant’s contention to effect that the learned trial judge was in error when he stated
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in his judgment that the publication in question touched on the reputation of the 1st respondent as a “person involved in scam and shady deals”, which was never pleaded by the 1st respondent. Indeed, his Lordship at pages 201 -202 of the record of appeal had found thus:
The Claimant in paragraph 17 of his statement of claim dated 17/7/07 set out the defamatory words as follows:
The above named person is wanted by the Nigeria police force FCT command Abuja in connection with a case of criminal breach of trust which involves millions of Naira belonging to his employer, the Punch Nigeria limited. He is about 33 years old If seen, he should be arrested and taken to any nearest police station state or zonal command or contact the public relation officer, FCT command Abuja.”
The particular reference in Exhibits 19, 19A, 19B to the Claimant definitely touched to the reputation of the Claimant as a person involved in scam and shady deals.
Furthermore in paragraphs 26 – 29 of his Statement of Claim, the Claimant averred as follows-
26. The Claimant avers that he can no longer move freely as result of the illegal and malicious
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publication carried against him by the Defendant.
27. The Claimant has received numerous phone calls from Nigeria and abroad from friends and families with a view to knowing the true position concerning the publication.
28. The Claimant has now become an object of ridicule before reasonable members of the society and they now look at him with disdain.
29. The Claimant avers that the circulation and the publication is not only restricted to local readers but also accessible to readers all over the world through internet.
The Claimant also must establish that the words so published were false and were published to a third party. “A statement does not give rise to a cause of action against its publisher merely because it causes damages to the Claimant. The statement must be false and it must itself contain whether expressly or by implication a statement of fact or expression of opinion which would lower the Claimant in the estimation of a reasonable reader who has knowledge of such fact not contain in the statement as the reader might reasonably be expected to possess”. See paragraph 86 page 44 of Gatley on Libel 8th edition.
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Exhibits 19, 19A, 19B were published to the general public and so I am satisfied that this publication has been made to 3rd parties.
The vexed statement was made with particular reference to Exhibits 19, 19A and 19B, which are the publications contained in three separate editions of the Punch Newspapers of 6th, 7th and 8th July, 2007 respectively shown at pages 56, 57 and 58 of the record of appeal. I have myself, perused the aforementioned Exhibits 19, 19A and 19B. The words used in them are not only plain but are unambiguous and ordinary English words, such that the 1st respondent, needed not to have pleaded any innuendo in respect of those words, for the learned trial judge to understand that when a person is suspected and alleged of committing the offence of criminal breach of trust, he is generally regarded as a Smart Alec. And that is what I understand the learned trial judge as inferring from the publication in question. I believe that any reasonable person would have formed the same impression of the 1st respondent upon reading Exhibits 19, 19A and 19B. Indeed, the CW 2 at paragraph 9 of his statement on oath after reading the above mentioned
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Exhibits, said he thereafter regarded the 1st respondent as a thief. That is the inference drawn from the libelous publication by a reasonable person.
In Sketch Publishing Co Ltd & Anor v. Ajagbemokeferi supra, also reported in (1986) LPELR-3207 (SC) @ 25-26 thereof, his Lordship, Wali, J.S.C. in the leading judgment, reiterated the rationale of the test of reasonableness in construing words used in libelous publications, inter alia:
“The test has always been as Obaseki, J.S.C. has succinctly restated it in the following words in Dumbo v. Idugboe (1983) 1 S.C.N.L.R. 29 @ 48:
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
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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.
In view of all I have said above, I am of the considered and firm opinion that the learned trial judge was not in error when he construed the libelous words in the publication in question, in their fair and natural meaning, as having lowered the 1st respondent’s reputation to the level of a person involved in scam and shady deals. And if I may add: as an untrustworthy and dubious person!
The remaining aspect of the appellant’s contention is with respect to the defence of qualified privilege and that the 1st respondent failed to prove that the publication in question by them was actuated by malice. This was addressed by the learned trial judge at
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pages 202 – 204 of the record of appeal. His Lordship, after restating the law in respect of qualified privilege and relating it to the facts of the instant case came to the conclusion that the defence of qualified privilege was not available to the appellants. The 1st respondent was a staff of the 1st appellant. The former did not remit some large amount of money he had realized from advert deals that was executed for and on behalf of the 1st appellant. This fact was not denied and the 1st respondent took steps and refunded the sum of N5,704,465 .99 out of the sum of N7,013,029.75 that the accounts showed he was owing the 1st appellant. Thereafter, he resigned from the services of the 1st appellant, leaving the balance of N1,470,905.53.; which the 1st respondent denied. The parties were communicating with each other on the contentious balance in question up to June, 2007. The next step taken by the 1st appellant was the public notice issued on 6th , 7th and 8th July, 2007 vide Exhibits 19,19A and 19B, which constituted the libelous publication in this matter. In the circumstances, can the appellants in good conscience take the position as they did in their
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defence, that they were excused to do what they did in this matter, on the basis of qualified privilege? I do not think so. I wonder why the appellants had to resort to laying a criminal allegation on the pages of their Newspaper vide the libelous publication in question against their former employee with whom they had communicated up to June, 2007. If the appellants’ interest was the recovery of the contentious balance allegedly being owed the 1st appellant by the 1st respondent, why did it not occur to them that filing a civil suit against the latter, would have been more profitable and fulfilling? Instead, they took a precipitous action against the 1st respondent vide Exhibits 19,19A and 19B. To my mind, they were recklessly high handed and actuated by malice against the 1st respondent. Therefore, I have no difficulty in agreeing with the learned trial judge, in his finding that the defence of qualified privilege was not available to the appellants.
The Supreme Court, while addressing the issue of malice and its consequences on the defence of qualified privilege vis- a- vis a libelous publication, succinctly stated the law in
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Chief S.B. Bakare & Anor v. Alhaji Ado Ibrahim (1973) 6 S.C.205 @ 212-215 thus:
“…in an action for defamation it is usual to allege in the statement of claim that the words were printed and published “falsely and maliciously. If the publication is shown to be false, malice is inferred by operation of law; It is enough to show that the words complained of, are completely false—-where defamatory words are published without lawful excuse, the law conclusively presumes that the defendant is motivated by what is often described as malice in law; accordingly the plaintiff is usually not required to give particulars of the facts on which he seeks to rely in support of the allegation that the words were published “maliciously”. — it should always be borne in mind that once the plea of fair comment or qualified privilege is made out,—the inference of malice is rebutted, and the burden is thrown upon the plaintiff of showing and proving ‘express malice’ against the defendants. This is generally known as malice in fact” and to be able to discharge the onus at the trial, it is important that the plaintiff should deliver a reply, alleging express malice and
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giving particulars of the facts from which such malice is to be inferred.”
In the instant case, the 1st respondent, at paragraphs 21-26 of his statement of claim had averred of the malice allegedly harbored against him by the 2nd appellant. Furthermore, upon receipt of the appellants’ statement of defence and Counter- Claim, the 1st respondent filed a Reply thereto and pleaded the particulars of malice at paragraphs 14-21 thereof. The 1st respondent in his evidence at the trial was able to demonstrate that the proper procedures for his name to be published in the 1st appellant as was done on 6th, 7th and 8th July, 2007 by the latter was not followed. He tendered into evidence Exhibits C37, C38, C39 and C40 as examples of some wanted persons who the Police had authorized their publications and that the coat of arms of the Nigeria Police Force appeared on such publications, but in his own case as reflected in Exhibits 19, 19A and 19B, there was no insignia of the Nigeria Police Force there on, suggesting that the 2nd respondent did not authorize the libelous publication in this matter. Hence the appellants’ desperation to besmirch the reputation of the 1st
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respondent to the whole world, came out forcefully to the fore. It is strange and a very sad commentary that the 1st appellant- a print media outfit, could brazenly demonstrate the disturbing culture of impunity in Nigeria’s national life, as it did in this matter. In all of these, I am satisfied, just like the learned trial judge, that the 1st respondent having pleaded malice and given particulars of the same in his Reply to the appellants’ statement of defence and Counter – Claim and coupled with his parole and documentary evidence at the Court below, had dutifully done all that he needed to do to demolish the appellants’ defence of qualified privilege. In the end, in all ramifications, as analyzed in this judgment, I resolve the sole issue in this appeal against the appellants.
Consequently, I find no merit in the appeal, which is fluffy and deserves a dismissal and it is so dismissed. The well considered judgment of A. A. Phillips, J., rendered at the Ikeja Division of the Lagos State High Court of Justice, in re – Suit NO: ID/901/2007, on 20th September, 2013 is hereby affirmed.
Costs of this appeal is assessed at N200, 000.00 in favour of the
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1st respondent, against the appellants jointly.
Other Citations: (2001)LCN/1021(CA)
