Tell Communications Limited V. Colonel Mohammed Buba Marwa (2005)
LawGlobal-Hub Lead Judgment Report
KUMAI BAYANG AKAAHS, J.C.A.
This is an interlocutory appeal against the Ruling of Phillips J. delivered on the 16th July, 1999, wherein the Defendant was restrained from further writing, printing or circulating or causing to be written, printed or circulated, or otherwise publishing similar article on the Plaintiff as contained in the article in the issue of Tell Magazine No. 21 of May 24, 1999, on pages 22, 23, 24, 25, 27 and 30 thereof or any similar article, until the matter is determined. In the Writ of Summons, the Plaintiffs claim are for:
- The sum of N250 Million (Two hundred and fifty Million Naira) damages for libel contained in the issue of the Tell Magazine No. 21 of May 24, 1999 on pages 22, 23, 24, 25, 27 and 30 of the said Magazine.
- An injunction restraining the Defendant whether by itself or by its servants or agents from further writing, printing or circulating or causing to be written, printed or circulated or otherwise publishing of the Plaintiff the said or similar libel.
The Ruling dealt with two composite applications. The first application dated 3/6/99 was filed by the Defendant raising a preliminary objection to the competence of the suit and asking the court to strike out the writ, while the other application, dated 5/7/99 was filed by the Plaintiff seeking for an injunction to restrain the Defendant from publishing and circulating the said libel or similar libel until the trial of the action. The Preliminary Objection was dismissed while the motion for injunction succeeded and was accordingly granted. The defendant was dissatisfied with the Ruling and filed its Notice of Appeal, dated 29/7/99 containing six grounds of appeal from which the following lone issue was formulated for determination:
“Whether the learned trial Judge was right, in granting an order of Interlocutory Injunction restraining the Defendant from further writing, printing or circulating or causing to be written, printed or circulated or otherwise publishing of the plaintiff the said or any similar libel”.
The Respondent formulated the following three issues for determination which according to Mr. Sofola SAN have arisen from the Notice of Appeal namely-
(a) Having regard to the reason given by the learned trial Judge for restraining the Appellant temporarily from further writing, printing or circulating or causing to be written, printed, or circulated or otherwise publishing the article on the Respondent as contained in the issue of TELL Magazine, until the matter was determined, whether the learned trial Judge exercised her discretion judicially and judiciously.
(b) Whether the order of injunction granted by the learned trial Judge temporarily restraining the Appellant from further writing, printing or circulating or causing to be written, printed, or circulated or otherwise publishing the article on the Respondent as contained in the issue of TELL Magazine No. 21 of May 24, 1999, until the matter was determined violated the constitutional rights of the Appellant as guaranteed under section 39 of the Constitution of the Federal Republic of Nigeria, 1999 and Article 9 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap 10 Laws of the Federation of Nigeria, 1990.
(c) Whether the Appellant has been deprived of her livelihood by the granting of the interlocutory order of injunction.”
The appellant tried to substitute the brief dated 13th February, 2001, with an Appellant’s Amended Brief dated 5th October, 2005, but the application was refused. Learned Senior Counsel also gave Notice of Preliminary objection to issue 3 at paragraph 5.00 on page 18 of the Appellant’s brief, arguing that same is incompetent and should be discountenanced and struck out since it did not emanate from any of the grounds of appeal in the Notice of appeal. Learned Counsel for the Appellant conceded that the issue raised was not covered by grounds 5 and 6. He however, argued that the balance of convenience which was complained of in grounds 5 is well covered in the brief. It is my view that since the Amended Brief was struck out, there is nothing left to say on the Preliminary objection as it related to issue No. 2 in that brief. The lone issue in the Appellant’s brief is well covered by grounds 1-4 in the Notice of Appeal.
In arguing the appeal learned Counsel referred to the order made by the learned trial Judge and submitted that the learned trial Judge was wrong in granting an order of Interlocutory Injunction restraining the defendant from publishing an article that has not yet been pronounced to be defamatory of another. It is the contention of the learned Counsel for the Appellant that where a defendant in a libel suit swears to a counter-affidavit that he will justify the alleged libel the court will not grant an order of injunction pending the trial as doing so will imply that the defendant is lying. The following cases were cited in support:
BONNARD v. PERRYMAN (1891) 2 ch. 269 at 284; FRASER v. EVANS & ORS (1969) 1 Q.B. 349; ATTORNEY – GENERAL v. BRITISH BROADCASTING CORPORATION (1980) 3 WLR 109; KHASHOGGI v. I.P.C. MAGAZINES LTD & ANOR (1986) 1 WLR 1412 REGISTERED TRUSTEES OF AMORC V. AWONIYI (1991) 3 NWLR (PT 178) 245. Learned Counsel then submitted that it is not fair and will not be even handed if the plaintiff is not given an opportunity of proving his case before the injunction is granted. Conversely, it will be unfair if the defendants are not given an opportunity to justify what they have published and the plaintiff obtains an injunction which he will display. It was further submitted that by virtue of Section 39 of the Constitution every citizen has a right to freedom of dissemination of information and ideas and this right is for the public interest that individuals should posses and exercise without impediment, so long as no wrongful act is done and injunction should not be granted to restrain free speech.
The arguments of Mr. Sofola, learned Senior Counsel for the Respondent is in three parts, as shown in the three issues raised by him. The arguments are in respect of whether the learned trial Judge in granting the injunction exercised her discretion judicially and judiciously. Secondly, whether the injunction violated the constitutional rights of the Appellant as guaranteed under Section 39 of the Constitution of the Federal Republic of Nigeria, 1999 and Article 9 of the African charter on Human and Peoples Right (Ratification and Enforcement) Act Cap 10 Laws of the Federation of Nigeria, 1990 and lastly whether the Appellant has been deprived of her livelihood by the granting of the injunction. Learned Senior Counsel submitted that the complaint of the Appellant is directly against the exercise of the discretion of the trial Judge in granting the interlocutory order of injunction against it. While conceding that the authorities cited by the Appellant in its brief are in support of the refusal of an interlocutory order of injunction in libel; nevertheless, they are not the yardstick for making wide blanket statement that the lower court was wrong in granting the injunction in the libel matter before her. It is the contention of learned Senior Counsel that the order of injunction being an exercise of discretion is granted on the peculiar and particular facts of the case before the court and each case must be treated on its merit. It is submitted that an interlocutory order of injunction will readily be granted if it could be shown prima facie that the matter complained of was libelous in nature and that any court (or jury) would have found that the refusal was unreasonable. The following cases were cited in support:
JARRAHDALE TIMBER CO. LTD & MILEAN BROS LIMITED V. TEMPERLY & CO. AND ELLIOT & SONS (1894) 11 T.L.R 119; LONDON & NORTHERN BANK LTD V. GEORGES NEWNES LTD (1899) 16 T.L.R. 76. Reference was made to paragraphs 13 and 14 of the statement of claim which show that the words complained of are libelous in nature and it would be unreasonable not to grant the injunction. It was contended that since the Appellant did not controvert paragraphs 7, 8, 9 and 10 of the affidavit in support, the motive for the publication was art improper one and although, the court is reluctant to grant an Interlocutory order of injunction in libel cases where the Defendant honestly raised a defence of justification or qualified privilege, in the instant case, the Appellant has not honestly raised the defence of justification as it only indicated a reliance on the defence of justification without more. The Appellant claimed justification of the libelous publication by relying on the right of the members of the public to know everything about the conduct of the Respondent while in public office even if the publication was malicious and without basis. Citing NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALIA LTD V. GTV CORPORATION PTY LTD (1989) V.R. 747; CHOPPEL V. TCN CHANNEL NINE PTY LTD (1988) 4 NWLR 153 and BRYANSTON FINANCE V. DE VRIES (1975) 2 All E.R. 609 at 621 learned Senior Counsel submitted that the issue is not whether it is fair or even handed, but whether from the materials placed before the lower court, that court was right to have granted the injunction. It was submitted further that in all cases of injunction in defamation action, what is essential is that the plaintiff must satisfy the court by affidavit evidence that the Defendant intends or threatens to continue the publication of the defamatory words or statement. On damages to be awarded for publishing untrue material, it was the contention by learned Senior Counsel that the right to reputation is intangible, unquantifiable and no amount of money can assuage a person’s reputation, if it is damaged unjustifiably and the order of injunction is not a fetter to the constitutional right to freedom of speech and dissemination of information as it is a two way affair – the Press and individuals in the society which must be weighed against each other from which the court must strike a balance.
It is necessary at this stage to reproduce the Ruling in order to see the factors which the learned trial Judge took into consideration to grant the order. This is what the learned trial Judge said at pages 34-35 of the records:
“I agree with the submission of learned Counsel for the Plaintiff that the balance of convenience lies with the Plaintiff as he has no magazine fight back with, he therefore is admittedly at a disadvantage especially as he is retired and above all does not have the machinery of the Government at his disposal anymore and even if he did win at the end of the day damages might not be adequate compensation for the damage that might have been done to his name. The depositions in the Counter-Affidavit are enough to convince me that the Defendant will continue with the said publications unless temporarily restrained by this Court”.
There is no doubting the fact that any application for injunction calls for the exercise of discretion of the Judge seized with the matter and the Judge must exercise such discretion judiciously and judicially. All judicial discretion must be exercised according to justice and common sense and upon clear proof that a tort has been committed against the plaintiff and the defendant intends to repeat such tortuous act, the plaintiff will generally be entitled both to recover damages for the injury sustained and to obtain an injunction to restrain the continuance or repetition of the injury in the future. See: BUSARI V. EDO STATE CIVIL SERVICE COMMISSION (1999) 4 NWLR (PT. 599) 365. In the determination of any interlocutory application pending the trial of the substance case care should be taken not to make any pronouncements which may prejudice the trial of the claims filed and still pending before the court. See: GLOBE FISHING INDUSTRIES LIMITED V. COKER (1990) 7 NWLR (PT 162) 265 at 277 and 288.
Learned Counsel for the Respondent has made a great concession that the cases cited by learned Counsel for the Appellant in consideration of the exercise of the discretion of the trial court are all in support of the refusal of an interlocutory order of injunction in libel cases. The rule of law established since BONNARD V PERRYMAN (1891) 2 ch. 269 is that an interlocutory injunction ought not to be granted when the Defendant swears that he will be able to justify the libel. This was explained by Denning M.R. in FRASER V. EVANS (1960) 1 Q.B. 349 at pages 360-361 thus:
“The court will not restrain the publication of an article, even though it is defamatory, when the defendant says he intends to justify it or to make fair comment on a matter of public interest, That has been established for many years ever since BONNARD V PERRYMAN. The reason sometimes given is that the defences of justification and fair comment are for the jury, which is the constitutional tribunal, and not for a judge. But a better reason is the importance in the public interest that the truth should out (sic). As the court said in that case:
“The right of free speech is one which it is for the public interest that individuals should possess, and indeed, that they should exercise without impediment, so long as no wrongful act is done.”
There is no wrong done if it is true, or if it is fair comment on a matter of public interest. The court will not prejudice, the issue by granting an injunction in advance of publication.”
A case similar to the situation we are facing in this appeal is that of KHASHOGGI VS. I.P.C. MAGAZINES LTD & ANOR (1986) 1 WLR 1412. The facts of the case are as follows:-
The first defendants, the publishers of “Woman’s Own” magazine, published a trailer for an article, written by the second defendant, about the plaintiff. As a result the plaintiff told them that she would object to the publication of any such article, and would take steps to prevent its publication. The first defendants’ legal adviser thereupon wrote to the plaintiff saying that they will not publish anything they were not able to justify. In the following week’s issue, the defendants published an article entitled “What makes you divorce the richest man in the world,” which purported to be an account of the plaintiffs life with her husband before and after the dissolution of their marriage and contained various allegations about the plaintiff s sexual behaviour. The plaintiff objected to an allegation in that article that she had committed adultery with a friend of her husband, the president of another nation, and, since the defendants were not at that stage able to advance a plea of justification she obtained an injunction preventing further publication Three days later the defendants applied for the discharge of the injunction on the basis that they intend to justify the sting of the article as a whole, but the application was refused. On appeal by the defendants which was allowed it was held that the principle that an injunction would not be granted to restrain publication of an alleged defamatory statement where the defendant intended to advance a plea of justification extended to the situation where the defendant intended to justify the common sting of several allegations, including the allegation complained of, even though he might not be able to prove the particular facts contained in that allegation; and that, accordingly, since the defendants intended to justify what was said to be the sting of the article, namely promiscuity, the injunction should be discharged.
The decision in BONNARD VS. PERRYMAN supra was followed by this court in REGISTERED TRUSTEES OF AMORC VS. AWONIYI (1991) 3 NWLR (PT 178) 245, where the applicant in that case sought an injunction restraining any defamatory article or material concerning the applicant. Oguntade J.C.A. (as he then was) in refusing to grant the injunction stated at page 255 as follows-
“There is an even more fundamental reason why the injunction sought by the applicant cannot be granted. There is an inherent error of principle in asking the court to restrain a publisher from publishing an article that has not yet been pronounced to be defamatory of another.”
Coleridge C. J. in BONNARD VS. PERRYMAN supra warned on the need for the court to tread cautiously in the granting of interim injunctions in libel cases when he said at page 284:-
“Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions. We entirely approve of and desire to adopt as our own, the language of Lord Esher M.R. in COULSON VS. COULSON 3 T.L.R. 846 –
“To justify the court in granting an interim injunction it must come to a decision upon the question of libel or no libel, before the jury have decided whether it was a libel or not. Therefore, the jurisdiction was of a delicate nature. It ought only to be exercised in the clearest cases, where any jury will say that the matter complained of was libelous, and where, if the jury did not find, the court would set aside the verdict as unreasonable.”
In the particular case before us, indeed, the libelous character of the publication is beyond dispute, but the effect of it upon the Defendant can be finally disposed of only by a jury, and we cannot feel sure that the defence of justification is one which, on the facts which may be before them, the jury may find to be wholly unfounded; nor can we tell what may be the damages recoverable.”
The fact that the Appellant has not filed a Statement of Defence is of no consequence since in libel cases as in cases of declaration of title to land, there must be evidence in support of the claim for damages and pleadings do not constitute evidence. Where a trial Judge proceeded to enter judgment for the Appellant without any evidence from him or any other witness in support of either the pleadings or the claim for damages in the Statement of Claim that judgment must be set aside on appeal. See: IWUEKE VS. IMO BROAD CASTING CORPORATION (2005) 10 S.C.19 at 58.
I do not think it is the position of the law as canvassed in the submission of learned Senior Counsel that the Appellant needed to controvert every averment made in the affidavit in support of the motion for injunction. As no evidence has so far been taken in the case, I do not see how the trial court could decide on whether the defence of justification which the Appellant is likely to raise is honest or not. See: ODUNTAN VS. GEN OIL LTD (1995) 4 NWLR (PT 387) 1. All that is needed is for the Appellant to give notice of what its defence is likely to be in order to stave off the consideration of the interlocutory injunction and this it effectively did when Abdulfattah Muhammadu Lawal deposed to the following facts in paragraphs 5, 6 and 8 of the Counter-Affidavit:
“5. That Nosa Igiebor, Editor-in-Chief of Tell Magazine informed me and I verily believe him as follows:
(a) that the plaintiff was the immediate past military administrator of Lagos State.
(b) that the policies formulated and implemented by the said plaintiff while in office, his actions and conducts particularly, in matters relating to the office of the plaintiff are issues of public importance which affects the lives of the defendant’s officers and every citizen and residents of Lagos State and as such is open to public discussion, criticism and debate. The defendant is enjoined by the Constitution to publish such issues;
(c) that the defendant is a company that operates a medium, I known as TELL Magazine for the dissemination of information, ideas and opinions.
(d) that the defendant has as its employees, over 300 journalists and pressmen who earn their livelihood by continuously publishing: facts, opinions, ideas information, etc on any matter of public interest or any issue at all receiving and imparting ideas and information to the general public as guaranteed by the Constitutions of the Federal Republic of Nigeria, 1979 and 1999 respectively.
(e) that the words complained of published about the plaintiff/applicant is true in fact and in substance.
(f) that the words complained of relate to matters of fundamental and public importance and interest not only to the defendant/respondent, but also all Nigerians and persons resident in Lagos and the whole humanity at large.
- That the defendant will rely on the defence of JUSTIFICATION and will justify every assertion contained in the words complained of by the plaintiff/applicant.
- That the public reserves the right to know everything about the conduct of the plaintiff while in public office and such things are not at all private to him”.
Considering the reasons which the learned trial Judge gave for granting the injunction, it seems to me that extraneous considerations weighed heavily on the mind of the learned trial Judge. The fact that the Respondent is not in a position to fight back the alleged defamatory publication cannot be one of the factors to be considered in the granting of an interlocutory injunction. The recourse to self help measures by a party before seeking the assistance of the court is antithetical to the equitable relief of injunction. The law does not admit of self help in mitigation of damage to reputation. See: GOVERNOR OF LAGOS STATE VS. OJUKWU (1986) 1 NWLR (PT 18) 621.
In an appeal against the exercise of a discretion by a lower court, an appellate court cannot substitute its own discretion for that of the lower court. The Appellate court must be satisfied that the discretion was exercised upon wrong principle or that it based its discretion on matters extraneous to the issues before it or where it has omitted to take relevant facts into consideration, under such circumstances the Appellate court will be justified to interfere with the exercise of the lower court’s discretion.
See: OKERE VS NLEM (1992) 4 NWLR (PT 234) 123; OKAFOR VS BENDEL NEWSPAPER CORPORATION (1991) 7 NWLR (PT 206) 651; JOSIAH CORNELIUS LTD VS EZENWA (2002) 16 NWLR (PT 793) 298.
Considering the reasons advanced be the learned trial Judge for granting the injunction which found to be extraneous this court will interfere to set aside the injunction. As one of the reliefs in the substantive claim was for injunction, which could make the Appellant think the learned trial Judge had made up her mind on the plea of justification which the Appellant intended to raise as a defence in the trial, the matter will have to be re-assigned to another Judge for hearing.
The appeal has merit and it is hereby allowed. The interlocutory order of injunction granted by the learned trial Judge is hereby, set aside Instead an order of accelerated hearing of the substantive suit before another Judge of the Lagos High Court is hereby ordered with N5,000.00 costs in favour of the Appellant.
Other Citations: (2005)LCN/1855(CA)
