3PLR – OTOMEWO V. EZEKWE

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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[BASED ON POLICY, PRACTICE AND PUBLISHING LAW REPORT, 3PLR, PROTOCOLS]

OTOMEWO

V.

EZEKWE

FEDERAL SUPREME COURT OF NIGERIA

17TH MARCH, 1958.

F.S.C.161/1957

3PLR/1958/59 (FSC)

OTHER CITATIONS

BEFORE THEIR LORDSHIPS:

1. C. NAGEON DE LESTANG, AG. F.C.J. (Presided and Read the Judgment of the Court)

SIR HENLEY COUSSEY, AG. F.J.

ROBERT YORKE HEDGES, AG. F.J.

BETWEEN

1. E.T. OTOMEWO
2. SAMUEL E. LESSOR

V.

1. PHILIP V.N. EZEKWE

REPRESENTATION:

Mr. J.E.C. David (With Messrs. C. Moore & B. Kehinde) – for the Ap­pellant.

1. G.C.M. ONYIUKE – for the Respondent.

MAIN ISSUES

TORT AND PERSONAL INJURY:– Defamation – Libel – Imputation of infamous conduct – – Whether the words ‘arrogancy,’ ‘ignorance’ and ‘spiritual wickedness’ are capable of defamatory meaning and actually defamatory – Assessment of damages – Factors to consider

HEALTHCARE AND LAW: Doctor and patient relationship– conduct towards patient – statement made by doctor regarding patient’s religion – patient remaining in care of doctor after apologies – relief available to doctor from defamation arising therefrom

NONPROFIT LAW: Religious body – God’s Kingdom Society – Liability for defamatory publication against a third part – Legal standing of international parent body not registered in Nigeria – Liability of officers described in connection with the registered Nigerian affiliate of the international body

CHILDREN AND WOMEN LAW:  Women and access to healthcare – Woman-patient under medical treatment  – patient as a member of God’s Kingdom Society, aka Jehovah’s Witnesses – doctor-patient relations – whether doctor has a duty to respect patient’s religious convictions while under his care –how treated – limits thereof

RELIGION AND LAW:- God’s Kingdom Society, aka Jehovah’s Witness – offensive comments made by doctor towards his patient’s religion as a member of Jehovah’s witnesses – consequent publication of handbills by religious organization joining issues with the doctors – Whether words contained in handbills therein are of defamatory character – Relevant considerations

PRACTICE AND PROCEDURE:- Quantum of damages awarded by court – When appellate court will refuse to interfere with award made by trial court – Relevant considerations

PRACTICE AND PROCEDURE – APPEAL – Appeal against quantum of damages – Principles to guide appel­late Court.

MAIN JUDGMENT

DE LESTANG, Ag. F.C.J. (Delivering the Judgment of the Court):

This is an appeal from a decision of the High Court of the Western Region, Warri Judicial Division, wherein the appellants were jointly and severally ordered to pay to the respondent £3,000 damages for libel. The material facts in a nutshell are these. The respondent, who is a Doctor of Medicine, was at the material time a Government Medical Officer at Warri. In the discharge of his professional duties he had occasion to treat a woman called Regina Otomewo who belonged to a religious sect called God’s Kingdom Society. The 1st and 2nd appellants are the President and Secretary respectively of that Society. It would appear that when the respondent saw Regina Otomewo he made certain remarks to which the God’s Kingdom Society took exception and for which he subsequently apologized. His apology seemed to have been accepted since the lady was left in his care. About three months later the God’s Kingdom Society caused to be printed and published a large number of handbills on which was written the following:­

1. EZEKWE – MEDICAL OFFICER WARRI – EXPOSED

Under the auspices of the God’s Kingdom Society (GKS) Warri Branch, the arrogancy, ignorance and the spiritual wic­kedness of the above named doctor will be exposed by Brother E. T. Otomewo, the President, in King George V. Memorial Hall Ward, on Sunday 28:10:56 at 5 p.m.; at Agbassa near Armel’s Transport Office on Tuesday 30:10:56 and at Alder’s Town near the Police Office on Thursday 1:11:56 at 6 p.m. re­spectively.

Doctor Ezekwe has boastfully challenged us to a battle and we have resolved to meet him. “He that rolleth a stone, it will re­turn upon him. His mischief shall return upon his own head, and his violent dealing shall come down upon his own pate.” See Prov. 26: 27; Ps. 7: 14-16

Some may say: Dr. Ezekwe’s name is not in the Bible, why discussing him? Such assertion could be expected only from either the ignorant or those who condone evil (Prov. 18:13; 24: 24,25): otherwise they ought to hear what the exposition is all about, before taking sides or decisions.

Do responsible people plunge into doing things without cause? Have we ever exposed other doctors – his predecessors be­fore? We have COGENT SPIRITUAL REASONS for choosing to expose Dr. Ezekwe.

The nobles, the commoners and the police are cordially in­vited. All seats are free.

GOD’S KINGDOM SOCIETY. Unity Press, Warri.

The handbills clearly referred to the respondent and he accordingly sued both the appellants and the God’s Kingdom Society for libel. The defen­dants delivered a joint defence and pleaded justification, fair comment, and that the words were not defamatory. The learned trial Judge dismissed the God’s Kingdom Society from the suit on the ground that as it was not an in­corporated body it could neither be sued in its own name, nor through its of­ficers. He found, however, for the respondent against the two appellants and awarded the damages I have already mentioned.

The appellants appeal on no less than twelve grounds, but of these only three were argued and I shall deal with them in turn. The 1st ground argued is the second ground of the Additional Grounds of Appeal and reads:­

“The learned trial Judge erred in law in holding the defendants/ appellants liable when they were sued as representatives of the God’s Kingdom Society, an incorporated body.”

Mr. Moore rested his argument in support of this ground on paragraph 2 of the Statement of Claim which avers: “The 1st and 2nd defendants are the President and Secretary respectively and representatives of the 3rd defen­dant which is an organisation with headquarters at Salem City Warri.” In my view this argument lacks substance. If one looks at the heading of the State­ment of Claim one will see that there are three defendants, namely the 1st appellant, the 2nd appellant and the God’s Kingdom Society. Paragraph 2 of the Statement of Claim is merely descriptive of the parties and is not in­tended to set out the capacity in which they are sued. An attempt was indeed made by the respondent to sue the God’s Kingdom Society as well through its alleged representatives, the appellants, but this attempt failed. I cannot see any good reason why the respondent should not have sued the appellants and described them as he did as the President and Secretary respectively of the Society, since it was in those capacities that they were concerned in the publication of the libel. They clearly admitted publication in paragraph 3 of their joint defence. This ground of appeal, therefore, fails.

The next ground of appeal is ground 1 of the original grounds which reads:

“That the learned Judge was wrong on point of law when he held that the words: `Dr. Ezekwe – Medical Officer – Warri – Exposed’ that the words `arrogancy, ignorance and spiritual wickedness’ were capable of defamatory meanings, and when acting as a jury, held that the words aforementioned are in fact defamatory.”

I have already set out the words complained of and it is sufficient to say here that I entirely agree with the learned trial Judge’s findings that they refer to the respondent in the way of his profession as a doctor. This is clear on the face of the words themselves, but if any doubt existed it would be dispelled by the charge in paragraph 8(a) of the defence and the evidence called by the appellants in support of it, which was to the ef­fect that the respondent had been guilty of infamous conduct as a doctor.

The last ground of appeal argued was that the damages were excessive. The principles upon which a Court of Appeal acts in an appeal against the quantum of damages are well settled and were stated thus by Green, L. J. in Flint v. Lovell (1935) 1 K.B.D. 354 at p. 360.

“In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so ex­tremely high or so very small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.”

In assessing the damages in the present case the learned Judge was naturally influenced by the plea of justification, by the serious charges made against the respondent, and by the conduct of the defence. Indeed those charges were more serious than the libel itself and have not been retracted. Neither has there been any apology tendered. Although I think that the damages awarded are high I am not prepared to say that they are such as to warrant interference by this Court. This appeal is accordingly dismissed with £57.0.0 costs

COUSSEY, Ag. F.J.: I concur.

HEDGES, Ag. F.J.: I concur.

Appeal Dismissed.