S.B. Dalumo Vs The Sketch Publishing Co. Ltd (1972)
LawGlobal-Hub Lead Judgment Report
FATAYI-WILLIAMS, JSC.
It is an essential element of the cause of action for defamation that the words complained of should be published “of the plaintiff’. If the words are not so published, the plaintiff is not defamed and cannot have any right to ask that the defendants should be held responsible to him in respect of them. (See Knusffer v. London Express Newspaper Ltd. (1944) 1 All ER 495 as per Viscount Simon, LC., at p.496). It is not necessary that the words should refer to the plaintiff by name.
Provided that the words would be understood by reasonable people to refer to him, and this is the test in every case, it is sufficient. As the law stands, the test of whether words that do not specifically name a plaintiff refer to him or not is this. Are the words used such as, reasonably in the circumstance, would lead persons who know the plaintiff to believe that he was the person referred to?
In the case now before us, the learned trial Judge found that there was no proof before him that the words complained of were published of the plaintiff because there was no suggestion in the evidence adduced that the Nigeria Airways of which the plaintiff claimed to be one of its top officials is the same company as the Nigeria Airways Corporation whose top officials were the object of attack in the publication in the issue of the Daily Sketch of 15th July, 1968, complained of. The issue before us, succinctly put, is whether, having regard to the totality of the evidence adduced before him, the learned trial Judge was correct in finding that there was no such proof.
The facts on which the decision was based are as follows. In the front page of the issue of the Daily Sketch of 15th July, 1968 (Ex.B), – a daily newspaper printed and published by the defendants – and under a bold caption which reads – “Oath of Secrecy at Airways?” the following words which were set out in paragraph 5 of the plaintiff’s Statement of Claim were published – “Are top officials of the Nigeria Airways Corporation taking oath of secrecy again? A staff of the corporation said YES to a Sketch reporter at the weekend. The source hinted that very recently, some officials of the Airways swore by the bible, Koran and the concoction of Kola nuts and alligator pepper. The purpose of the oath, the source added, was to ‘keep our secrets secret?”.
The swearing would bind or prevent any of the participants from divulging any form of secret and information. By this oath, the source stated the swearers must not expose any form of corruption, mismanagement or any pattern of irregularity within the company.” As these words stand, there is no specific mention of the plaintiff from beginning to end. On 13th August, 1968, the plaintiff, nevertheless, caused a writ to be issued from the High Court of Lagos, in which he claimed against the defendants, the sum of £2,000 as damages for an alleged libel contained in the said publication. In his Statement of Claim, the plaintiff averred that at the material time he was the acting Secretary of the Nigeria Airways otherwise known as W.A.A.C. (Nigeria) Ltd. and that prior to his acting appointment he was the Deputy Secretary of the said Nigeria Airways.
He further averred in paragraph 5 thereof that the defendants falsely and maliciously printed and published of the top officials of the Nigeria Airways of which the plaintiff was one, the publication complained of and that the said publication was in respect of his office and in relation to his conduct therein. The plaintiff finally averred in paragraph 6 of the said Statement of Claim as follows:-
“By the said words, the defendants meant and were understood to mean that the plaintiff, a top official of the Nigeria Airways was corrupt, incompetent and dishonest.”
In their Statement of Defence, the defendants admitted printing and publishing the words complained of. They averred further in paragraphs 5,6, 8 and 9 thereof as follows:-
“5. The defendants deny that the plaintiff is included or can be identified with the class of workers contemplated by the words complained of.
6. The defendants deny paragraph 5 of the plaintiff’s Statement of Claim in so far as it alleged that the defendants’ falsely and maliciously printed and published of top officials of the Nigeria Airways of which the plaintiff is one the alleged defamatory words complained of in that paragraph.
8. The defendants aver that they did not nor intended to defame or publish any defamatory words about or concerning the plaintiff either in his private capacity or by way of his office.
9. The defendants deny that the words complained of are defamatory or capable of being defamatory at all.”
The plaintiff testified that he was the acting secretary of the Nigeria Airways at the material time, that he knew all the top officials of the company and that he was one of them. After stating how he received a number of telephone calls from one Tunde Origbowokan (1st P/W) and others a day or two after the publication, he testified further as follows- “There is no truth in the publication…I became the Ag. Secretary of the Corporation on 26th April, 1967. Before then I was the Deputy Secretary since 1st March, 1961. Since two years ago, there was an Enquiry into the affairs of Airways Corporation. I gave evidence at this Enquiry. A report of the proceedings of the enquiry was published. This is a copy of the report (tendered and marked “A”)…Pages 129 and 130 of the report refer to the discharge of my duties………… Indeed the publication in the newspaper complained of did damage to my personal reputation, and I claim damages for this injury.” Tunde Origbowokan (1st P /W) who had known the plaintiff since 1961 when he was the Deputy Secretary of the Corporation testified for the plaintiff as follows:-
“I know the plaintiff in this case. I know him to be the Ag. Secretary of the Nigeria Airways Corporation…I remember reading a write-up in the Daily Sketch of July 15th 1968….I remember the write-up was about the top officials of the Airways Corporation….Upon reading the whole story, I was shocked as I felt that the Airways was the last place to expect to find the top officials taking oath to cover up their corrupt practices. Since knowing the plaintiff some time before the publication, I associated him with the group referred to in the publications. I felt that if the plaintiff who I knew to be honest found it necessary to participate as alleged in the oath taking, my judgment of his character and reputation for honesty must have been unfounded.”
The defendants called only one witness, Joseph Adedun (1st D/W) the editor of the newspaper at the time of the publication of the words complained of. He stated as follows:
“I am familiar with the article complained of in Exhibit “B”. The article is written about the Airways. It does not make any categorical statement. I have been in the newspaper world since 1954. I have been editing newspaper for nearly four years. I have come in contact with the reading public since I joined newspaper business. The article complained of does not in any way refer to the plaintiff. I published an apology on the 23rd July, 1968, in the same newspaper.”
In a reserved judgment, the learned trial Judge found that the words complained of, in its ordinary and primary meaning were defamatory. He then went on to observe as follows:-
“To say falsely of a group of ascertainable top officials of a State owned Airways that they swore to Oath of Secrecy to conceal corruption, mismanagement or any pattern of irregularity is damaging enough to their reputation. It is certainly unnecessary to aver any innuendo to extend the meaning of the words.”
He nevertheless dismissed the plaintiff’s claim for the following reasons:-
“Giving evidence in support of his claim the plaintiff said that he is the Acting Secretary of the Nigeria Airways, which, undoubtedly tallies with his pleadings. It will be seen therefore that nowhere in the pleadings or in the evidence is there any suggestion that the Nigeria Airways of which the plaintiff claims to be one of its top officials is one and the same body called Nigeria Airways Corporation whose top officials are the object of attack in the publication complained of. It is true that in his own evidence, Mr. Onofowokan refers to the plaintiff as Ag. Secretary of the Nigeria Airways Corporation, but I was yet to be told that the witness was referring to the same body as the plaintiff’s.”
After referring to the decision in Service Press Ltd. v. Nnamdi Azikiwe 13 W ACA 301, and stating that the facts of that case were similar to those in the present case, he found finally as follows:-
“It is an essential element in an action for defamation that the words complained of should be published of the plaintiff and I do not have the proof in this case.”
In the appeal now before us against that judgment, Mr. Sowemimo who appeared for the plaintiff/appellant submitted that there was sufficient evidence adduced at the trial from which a reasonable person, reading the article as a whole, would infer that the Nigeria Airways Corporation named in the article is the same as the Nigeria Airways, and that if the trial Judge had so inferred, he would not have come to the conclusion that there was no proof that the words complained of was published of the plaintiff. Learned counsel also submitted that the case of Service Press Ltd. v. Nnamdi Azikiwe (supra) on which the learned trial Judge relied was not applicable to the instant case because it is clear from the facts of that case and was, in fact, so found by the court which heard the appeal, that no evidence was adduced by Nnamdi Azikiwe, the plaintiff nor was there any admission by the defence that the plaintiff was the man referred to in the alleged libel. In his reply on behalf of the defendants/respondents, Mr. Ajakaiye, after some rather weak efforts to justify the conclusion of the learned trial Judge, conceded that a reasonable person reading the article as a whole would conclude that reference to the Nigeria Airways Corporation means the Nigeria Airways. He nevertheless submitted that there was no proof that the publication referred to the plaintiff. For the same reasons as those given by the learned counsel for the plaintiff/appellant, we are also ofthe view that the case of Service Press Ltd. v. Nnamdi Azikiwe is not in pari materia. Both the trial court in that case and the appeal court found that there was no evidence connecting Nnamdi Azikiwe, the plaintiff with Ben Azikiwe who was the person libelled in the article complained of. Now, what is the position in the case before us? Both in his Statement of Claim and in the testimony which he gave in support, the plaintiff/appellant said he was the acting Secretary of the Nigeria Airways. He also testified that he became “acting Secretary of the Corporation on 26th April, 1967”, that he was “a top official of the Corporation”. And that two years ago “there was an Enquiry into the affairs of Airways Corporation. It must be remembered that the title of the report of this inquiry (Exhibit “A”) reads- “Report of Inquiry into the Affairs of W.A.A.C. (Nigeria) Ltd. otherwise known as Nigeria Airways for the period 1st March, 1961, to 31st December, 1965.” PAGE| 6 There is also the evidence of Tunde Origbowokan (1st P/W) who described the plaintiff as “Ag. Secretary of the Nigeria Airways Corporation” and who stated that the write-up in the Daily Sketch of 15th July, 1968, was “about the top officials of the Airways Corporation”. Added to all these is the testimony of Joseph Adedun (1st D/W) the editor of the newspaper concerned who testified that the article complained of was “written about the Airways.” The totality of the evidence adduced at the trial, to our mind, could only lead to one conclusion and that is that all those concerned assumed and even inferred, quite rightly if we may so, that “the Nigeria Airways” is the same as the “Nigeria Airways Corporation”.
Even the learned counsel for the defendants/respondents conceded this. It must be remembered that, unlike the Electricity Corporation of Nigeria or the Nigerian Railway Corporation both of which were established by statute which gave each one its title, the Nigeria Airways is a limited liability company incorporated under the Companies Act (then in force) like any other limited liability company. It seems to us, therefore, that the word “Corporation” used after the words “Nigeria Airways” in the article concerned is merely descriptive of the company and does not affect its name.
The sentence “A staff of the corporation said YES to a ‘Sketch’ reporter at the week-end” which followed immediately would appear to lend support to this view. We do not think that the learned trial Judge adverted his mind sufficiently to all the evidence before he came to the conclusion that there was no suggestion that the Nigeria Airways of which the plaintiff/appellant claimed to be one of its top officials was one and the same organization known as the Nigeria Airways Corporation. On the contrary, there was abundant evidence to show that the company was at times called W.A.A.C. (Nigeria) Ltd. and at other times the Nigeria Airways or the Nigeria Airways Corporation.
We have no doubt that if the learned trial Judge had not erroneously found that they are not all one and the same company, he would not have found, having regard to his other conclusion to which we will now refer, that there was no proof that the words complained of were published of the plaintiff. He was therefore in error in dismissing the plaintiff/ appellant’s claim on that ground. In fairness to him, the learned trial Judge did say that if he was wrong about the identity of the plaintiff with the publications, he would have held, on the evidence before him:- (a) that the words complained of, relative to the circumstances, were reasonably capable of being understood to apply to the plaintiff as one of the top officials of the company. (b) that the publication would lead reasonable people who knew the plaintiff to conclude that it did refer to him;: (c) that the publication was defamatory of the plaintiff and this it was unnecessary to prove any innuendo to extend the meaning of the words used.
It should be noted that there has been no cross-appeal before us in respect of any of these findings. Finally, the learned trial Judge concluded that had he been in a position to find for the plaintiff he would have awarded him the sum of £500 as damages. As we have pointed out earlier, the learned trial Judge was in error in respect of the only ground on which he dismissed the plaintiff/appellant’s claim. In view of his other findings of fact, the plaintiff/appellant should have succeeded in his claim. This appeal therefore succeeds and it is allowed. We order as follows:-
1. That the judgment of the learned trial Judge in suit No. LD/441/68 delivered in the Lagos High Court on 30th June, 1969, including the order as to costs, be and is hereby set aside;
2 (a) that there should be judgment for the plaintiff/ appellant for the sum of £500 as damages for the libel complained of; and
(b) that the plaintiff/appellant be awarded costs in the court below assessed at 65 guineas; and
(c) that this shall be the judgment of the court. Costs of this appeal in favour of the plaintiff/appellant are assessed at 80 guineas.
Other Citation: (1972) LCN/1422(SC)
