[PDF copy of this judgment can be sent to your email for N300 only. Just order through firstname.lastname@example.org and email@example.com or text 07067102097]
MUTUAL AIDS SOCIETY LTD
12TH NOVEMBER, 1965
CHILDREN AND WOMEN LAW:- Women in Business – Loan secured by deed of mortgage over land – Attempt of creditor to auction home of woman debtor instead of the property covered by the deed of mortgage she executed – Whether defamatory of husband – Proper relief thereto – How treated
BEFORE THEIR LORDSHIPS
ADEMOLA, C.J.N., COKER AND IDIGBE, JJ.S.C.
TORT AND PERSONAL INJURIES LAW – DEFAMATION:- Claim for damages for libel arising from publications relating to property – Advertisement/placarding of property for sale via auction to satisfy loan due but unpaid – Where no mortgage connected to said loan existed – Whether liability for libel arises – How proved – Relevant considerations
TORT AND PERSONAL INJURIES – DEFAMATION – QUANTUM OF DAMAGES: – Defamation arising from wrongful publication of auction on property of claimant – How proved – Liability – Whether on auctioneer or person authorising auction – Malice – Effect on assessment of quantum of damages – Where alleged – Need to prove same – Whether mere carelessness or negligence in publishing a defamatory matter is not of itself evidence of malice – Failure to publish an apology – Failure to mitigate damages – Other necessary considerations – When damages awarded is deemed inordinately high – Duty of appellate court thereto
DEBTOR AND CREDITOR LAW:- Loan guaranteed by a deed of mortgage over a property – Direction for sale of mortgaged property via auction towards satisfaction of debt due but unpaid – Whether public auction can be levied against property of debtor not covered under deed of mortgage – Legal effect of levying auction on property of debtor not covered by mortgage
COMMERCIAL LAW – AGENCY: – Agent acting outside of scope of authority – Ratification by principal – How proved – When implied from silence – Effect
COMMERCIAL LAW – AGENCY – AUCTIONEER:- Role as agent – Powers – Need to act within scope of powers given by principal – Publishing advertisement for sale relating to a property other than that auctioneer was instructed to sell – Whether makes auctioneer liable for defamation arising therefrom – Where acts are unauthorised but done in the course of employment which is authorised – Liability of principal/master
COMMERCIAL LAW – AGENCY: – Liability of agent – Discretion of agent – Act done in the course of employment which is authorised – How proved – Whether one of fact and in each case the answer must depend on the scope of the agent’s employment to see if within the limits of his authority the agent has a discretion as to the manner in which he will discharge his duties
EMPLOYMENT AND LABOUR LAW:- Act done in the course of employment which is authorised – How proved – Whether one of fact and in each case the answer must depend on the scope of the agent’s employment – Proper treatment
IDIGBE, J.S.C. (delivering the judgment of the Court):
The respondent claims jointly and severally the sum of £25,000 from the appellants and one S. O. Coker (an auctioneer) as damages for libel. The circumstances leading up to the publication of the libel are as follows: one Harriet Aduke Akerele took a loan of over £2,000 from the appellants and as security for the said loan she executed a deed of mortgage (Exhibit ‘JI’) in respect of her land lying and situate at Obele-Odan,Surulere. Exhibit `J’ is the conveyance executed in her favour in respect of the land and it is dated 26th September, 1960 and registered as No. 29 at page 29 in Volume 405 in the Register of Lands kept in the Land Registry at lbadan. The mortgage deed given by way of security for the loan from the appellants is dated 11th November, 1960 and registered as No. 15. at page 15 in Volume 414 of the Register of Lands kept at the Lands Registry at Ibadan. As a result of Mrs. Akerele’s default in the payment of the loan; the appellants engaged the services of an auctioneer (S. O. Cokes) who was asked to sell by public auction the property covered by the mortgage (Exhibit ‘JI’). Part of the instruction from the appellants to the auctioneer (Exhibit `H’) reads:
“We hereby authorize you to sell by public auction the under-mentioned properties on our behalf and would like to see the notice of sale for our approval before the sale is placarded.
Subsequently the auctioneer advertised for sale by public auction the house and premises known as 39 Olatilewa Street, Obele-Odan, Surulere, and on the 6th December, 1962 he caused notices of the sale to be pasted on the house (39 Olatilewa Street) and at various places in Surulere, Yaba and Ebute Metta. Portions of the notice of sale (Exhibit ‘A’) read-
Mr. S. O. Coker, licensed auctioneer, value .appraiser ……………………….. has been honoured with instructions by the mortgagees, the Mutual Aids Society Ltd., Lagos to sell and will sell by public auction on Friday evening, the 7th day of December, 1962 at 5 p.m. precisely on the spot all that most desirable piece or parcel of modern valuable house and landed property lying and being at No. 39 Olatilewa Street, via Lawanson Obele-Odan suitable for residential and commercial purposes.
This property, Plot 39 Olatilewa Street, Obele-Odan is covered by a Deed of Mortgage dated 11th November, 1960 and registered as No. 15 page 15 in Volume 414 of the Lands Registry Office, Ibadan………..
It is necessary to point out, at this stage, that there was no evidence in the court below that Harriet Aduke Akerele is the wife of the respondent but in the course of his argument before us learned counsel for the respondent admitted that the woman (Harriet Aduke Akerele) is the wife of the respondent. Both the respondent and his wife (Harriet Aduke Akerele) live at 39 Olatilewa Street, Obele-Odan, Surulere and the property, which is not concerned with the mortgage (Exhibit ‘J1’), belongs to the respondent and not to his wife. The facts which the learned trial judge accepted as proved were that the respondent and members of his family were very distressed after reading the notice of sale (Exhibit ‘A’), that a crowd gathered in the morning of 7th December, 1962 in front of the house (39 Olatilewa Street) as the auctioneer’s bell-men went up and down ringing their bells advertising the sale of the property and that a number of police officers moved in and out of the premises in order to preserve the peace in the event of disorder during the progress of the auction sale. The trial judge also accepted the evidence given in support of the case for the respondent that some of his friends who read Exhibit ‘A’ went to see him and embarrassed him with questions by which they sought to know if the proposed sale was the result of his inability to repay a loan he got from the appellants. The respondent never got any loan from the appellants. Further, the trial judge accepted the evidence of S. O. Coker that as far back as the 26th November, 1962 he gave a copy of the notice of the sale which he intended to placard to the manager of the appellants’ company who knew that the property (39 Olatilewa Street) was not the subject matter of the mortgage (Exhibit ‘J1’) and had not until the morning of 7th December, 1962 asked the auctioneer to desist from carrying out the proposed sale. The learned trial judge held that –
(1) the contents of the notice of sale (Exhibit ‘A’) were indeed defamatory of the respondent as he was of the opinion that they carried the innuendo averred in the Statement of Claim which was that the respondent who was indebted to the appellants and executed a mortgage deed in respect of his property (39 Olatilewa Street) was now unable to discharge his liability as a debtor and consequently the appellants were exercising their powers of sale as mortgagees in respect of the mortgaged property; and
(2) that in publishing the said notice (Exhibit ‘A’) the auctioneer (S. O. Coker) was acting within the scope of his authority as agent of the appellants who consequently became liable for the publication of the libel by their agent.
After observing that the sum of £25,000 claimed was “out of proportion to the injury” suffered by the respondent he considered that an award of £1,000 was reasonable in the circumstances of this case.
The appellants have appealed against this decision and their principal complaint in this appeal was that the learned trial judge erred in law in holding that they were liable for the publication of the libel since (1) there was no proof that they gave specific approval of the notice (Exhibit ‘A’) before it was placarded, and (2) in any case, the auctioneer was not acting within the scope of this authority because he was never authorised to sell the property of the respondent. There was, however, evidence that in the course of his duties the auctioneer made some enquiries about the residence of Harriet Aduke Akerele and was told by both the manager and an accounting officer of the appellants’ company that she lived at 123 Bamgbose Street, Lagos. When the auctioneer could not find her at the address given he reported back to the same employees of the company who then told him that Mrs. Akerele got the loan from the appellants in order to “complete the house at Olatilewa Street where she lived.” The auctioneer went to 39 Olatilewa Street and found that the respondent and Harriet Aduke Akerele lived there. As we already pointed out the learned trial judge accepted the evidence of the auctioneer that he (the auctioneer) as far back as the 26th November, 1962 delivered a copy of the notice of sale (Exhibit ‘A’) to the manager of the appellants’ company, Mr. Kekere-Ekun, and no attempt was made to stop the auction until it was about to commence on 7th December, 1962 although Mr. Kekere-Ekun had said in evidence that when he read the notice (Exhibit ‘A’) on 26th November, 1962 he knew that “the auctioneer had made a mistake” since he did not think that 39 Olatilewa Street belonged to Mrs. Harriet Aduke Akerele.
In this Court learned counsel for the appellants contended that since in publishing Exhibit ‘A’ the auctioneer advertised for sale property other than that which he was instructed to sell, he (the auctioneer) did not act within the scope of his authority and, in those circumstances the appellants, as principal, could not be liable for the libel published in Exhibit ‘A’ by their agent (the auctioneer). We accept the proposition of law that a principal is only liable for libel published by the agent if, in publishing the libel, the agent acted within the scope of his authority; but on the evidence before the Court in the present case we are unable to uphold the contention made by learned counsel for the appellants that they (the appellants) are not liable for the libel contained in Exhibit ‘A’. The law, however, is that “although the particular act which gives the cause of action may not be authorised, still if the act is done in the course of employment which is authorised, then the master is liable for the act of his servant.” Per Stephen, J. in Brown v. Citizens’ Life Assurance Co. (1902) 2. N.S.WR. at 212 cited with approval by Lord Lindley in Citizens’ Life Assurance Co. v, Brown  A.C. 423at428 P.C. The question whether anything done by an agent has been done in the course of an employment which is authorised is clearly one of fact and in each case the answer must depend on the scope of the agent’s employment; and within the limits of his authority the agent has a discretion as to the manner in which he will discharge his duties. The evidence in this case shows that the auctioneer made some enquiries (and apparently reasonable enquiries) about the abode of Mrs. Harriet Aduke Akerele. Exhibit ‘H’-the written instruction he received from the appellants—does not give sufficient particulars (as to street and number) of the property covered by the mortgage. Obele-Odan is a large area in Surulere and, as is evident from the deed of mortgage (Exhibit ‘J1’), that area-at the time of execution of Exhibit J1-was undeveloped; streets in the area were neither properly identified nor were houses numbered. It is true that a plan of the land mortgaged was attached to Exhibit ‘J’ and that he, the auctioneer, could with the assistance of a surveyor have located the precise area of land involved from the plan. The auctioneer, however, has a discretion as to the manner in which he should discharge his duties, and there was no evidence that he was asked to use the services of a surveyor in locating the property covered by the mortgage (Exhibit ‘J1’). The following steps were taken by the auctioneer in the course of his employment:
(1) he made enquiries from the employees of the appellants who told him that Harriet Aduke Akerele got the loan from the appellants in order to complete the building at Olatilewa Street, Obele-Odan, Surulere;
(2) following up this information, he went to Olatilewa Street, Obele-Odan, Surulere and found that Mrs. Harriet Aduke Akerele was living at 39 Olatilewa Street; and
(3) believing that the property belonged to Mrs. Akerele he advertised the same for sale by publishing Exhibit ‘A’ which he did not placard until nearly two weeks after he had shown a copy to the manager of the appellants’ company who failed to point out to him his mistake.
There is evidence that it was the duty of the manager, Mr. Kekere-Ekun, to approve or reject the notice, Exhibit ‘A’, on behalf of the appellants. The law is that the ratification by or on behalf of the principal of the action of an agent may be expressed or implied from the mere silence over, or acquiescence in, the action of the agent by the principal. It seems to us that it is not now open to the appellants to contend that the auctioneer did not act within the scope of his authority when he pasted the notice, Exhibit ‘A’, on the premises known as 39 Olatilewa Sttreet, at Obele-Odan, Surulere on 6th December, 1962. That ground of appeal fails.
The only other ground of substance argued before us relates to the damages awarded and here the complaint of the appellants is that the damages awarded were excessive. While it is true that the court of appeal cannot re-assess damages awarded by a jury in a case where a judge sat with a jury, and can only order a re-trial if it appears that the jury applied a wrong measure of damages, this Court can decide what damages should be awarded, i.e., re-assess a previous award, in cases where an award of damages was made by the judge sitting alone, since the appeal before it is by way of re-hearing; this Court will not, however, interfere with the previous award unless it is satisfied that the judge acted on some wrong principle of law or that the amount awarded was so high or very small as to make it an entirely erroneous estimate of the damage suffered by the plaintiff.
In the case in hand it is abundantly clear that there had been a mistake on the part of both the auctioneer and the appellants. While it is true that they (i.e., the appellants) could have taken steps earlier to prevent the damage done by the action of the auctioneer in placarding the notice of sale, Exhibit ‘A’ there is evidence that before a very large crowd on the morning of 7th December, 1962, the proposed auction was abandoned at the instance of the appellants. While it is true that there is no evidence that the respondent was aware that his wife (Harriet) had given a mortgage in favour of the appellants, by way of security for a loan given to her, there is no doubt that the mistake of the appellants was known to the wife (Harriet) who could at the earliest opportunity have pointed out the error to both her husband (the respondent) and the appellants. It is well established that mere carelessness or negligence in publishing a defamatory matter is not of itself evidence of malice; and certainly no express malice has been shown on the part of the appellants. In the circumstances, it is extremely doubtful that had the learned trial judge been aware of the fact that appellants’ debtor-Harriet Aduke Akerele – was at the time of the publication of Exhibit ‘A’ the wife of the respondent, he would have considered the sum of £1,000 a true and fair estimate of the damage suffered by the respondent. After taking into consideration the fact that the appellants failed to publish an apology to the respondent we are of the view that taking the facts in this case together the award of £1,000 was inordinately high and that a sum of £200 would be a reasonable estimate of the damage done to the respondent.
This appeal succeeds but only in so far as it relates to the quantum of damages awarded in the court below; accordingly the judgement of the court below will be varied, and it is hereby ordered as follows:-
There will be judgment for the plaintiff in the sum of £200. The respondent will bear the costs of this appeal which are fixed at 60 guineas.