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SUIT NO. SC 133/1976
(1979) All N.L.R 65.
(1979) 6-9 S.C. 24
BEFORE THEIR LORDSHIPS
Mrs. F. Solanke M.D. – for the Appellant
TORT – DEFAMATION:- Libel – Proof of – Determination of alleged defamatory words in their ordinary and natural meaning.
TORT – DEFAMATION:- Libel – Proof of – Essence of clearly setting out in the statement of claim, the precise alleged defamatory words – Order XXXIII rules 4 and 5 of High Court Rules, 1956 of former Eastern Nigeria considered – Test for determining whether words complained of are defamatory in their natural and ordinary meaning.
MEDIA LAW:- Print Newspaper – Allegation that its publication was defamatory of plaintiff – Relevant considerations – How treated
PRACTICE AND PROCEDURE – COURT:- Exercise of discretion to allow amendment of pleadings at any stage of proceedings – Relevant considerations
PRACTICE AND, PROCEDURE – Amendment of Statement of Claim immediately before judgement – Court’s discretionary powers to grant amendment –
INTERPRETATION OF STATUTE:- Order XXXW of High Court Rules, 1956 of former Eastern Nigeria considered.
BELLO, J.S.C. (Delivering the Judgment of the Court):
The appellant in this appeal was the plaintiff in the High Court of the former East-Central State in which he claimed from the respondents, who were the defendants in the action, as follows:-
“In a daily newspaper called The Renaissance published on Thursday, May 23, 1974 and circulated throughout Nigeria including Onitsha within jurisdiction, the defendants at the back page of the said paper jointly published of and concerning the plaintiff a notice headed “Chief S.O.N. Okafor Deposed” (NB. the full text will be set out in the pleadings). Both the heading and the contents of the said publication are false and malicious and were calculated to, and indeed put the plaintiff to, shame and ridicule and lowered his esteem in the society.
The plaintiff therefore claims from the defendants jointly and severally the sum of Fifty Thousand Naira as general damages for libel.”
Pleadings having been ordered were duly fled and delivered. After the witnesses of the parties had been heard, learned Counsel for the respondents submitted during his address, inter alia, that the claim should be dismissed because the words complained of were not set out in the writ nor in the Statement of Claim. In his reply to that submission learned Counsel for the appellant contended that it was not mandatory to set out the words complained of in his pleading. The learned trial Judge reserved judgment after the submission of Counsel.
On the day the case was fixed for judgment but before the judgment was delivered, learned Counsel for the appellant by an application by motion, sought leave of the Court to amend the Statement of Claim by setting out therein the words complained of. Learned Counsel for the respondents opposed the application. In his ruling delivered on that day, the learned trial Judge refused the application upon the following ground:-
“Having considered the application I think that even though Order 34 of the High Court Rules gives unfettered discretion to the Court to allow amendments at any stage of the proceedings, it would be a dangerous precedent to postpone a judgment that has already been written. It would have been a different proposition If the application for amendment had been made some days before the very date foxed for the delivery of the judgment.
Exercise of discretionary powers must be based on apparent justice. To postpone a judgment that is ready in order to allow an amendment of a Statement of Claim can hardly be considered justice in the eyes of reasonable men and women.”
Thereafter the learned Judge proceeded to deliver his judgment in which he dismissed the claim on two grounds. Firstly, the words complained of were not specifically pleaded and, secondly, that the words complained of were not defamatory in their natural meaning.
The appeal to this Court is against the ruling refusing the appellant leave to amend his pleading and also against the judgment dismissing his claim. Although in the final result ten grounds of appeal were filed and nine grounds argued, we think only grounds Nos. 1, 5, 8 and 10 merit our consideration.
Although grounds 1 and 5 were argued together, we think it is appropriate to start with the complaint relating to ground no. 5, which reads:-
‘The learned trial Judge erred in law when he said as follows:
‘I think that the law is that the libel must be set out verbatim in the Statement of Claim; it is not enough to set out its substance or effect as ‘the precise words are material.’ As the above requirement of the law is mandatory, and as I am not satisfied that the requirement of the law has been met here, I think that the case should in the circumstances be dismissed.’ (Page 42 lines 1 – 9)
Particulars of error in law
(a) the appellant pleaded in paragraph 9 of the Statement of Claim the date and particulars of the newspapers containing the libel and tendered the same;
(b) the exact words of the publication were in evidence before the Court in Exhibit ‘A’ and
(c) the respondents did not ask for any or further particulars before the trial commenced or at any time thereafter.”
Learned Counsel for the appellant argued that the learned trial Judge erred in law In his statement of the law. She submitted that once the publication has been sufficiently identified in the Statement of Claim, the law does not require the words to be set out verbatim in the Statement of Claim. Learned Counsel has not referred us to any authority to support her contention. In his reply the learned Counsel for the respondents contended that in an action of libel it is mandatory to set out verbatim the words complained of in the Statement of Claim. He relied on Collins v. Jones (1955) 1 Q.B. 564.
The law that regulated the content of pleading in the Court below was the High Court Rules, 1956, of the former Eastern Nigeria. Order XXXIII rules 4 and 5 of the Rules provided:
“4 Wherever any pleading, a Statement of Claim, or Defence is ordered to be filed the provisions of the following rules shall be observed.
It has always been the law in England that in an action of libel the precise words of the document are “material” within the meaning of the rule regulating the con-tent of pleading in that country and It has always been the practice to set out verbatim the words complained of in the Statement of Claim: 24 Halsbury’s Laws of England and Collin v. Jones (1955) 1 Q.B. 564 (C.A.). In a recent case the Court of Appeal in England has stated that where a libel arises out of a long article in a newspaper, the plaintiff must set forth in his Statement of Claim the particular pas-sages which he complains of, and ff he complains of the whole publication, then the whole publication must be set forth in the Statement of Claim: D.D.G.A. Pharmaceuticals Ltd. v. Times Newspapers Ltd. (1973) 1 Q.B. 21 (C.A.). Now Order 18 rule 7(1) of the Rules of Supreme Court of England reads:-
…every pleading must contain a statement in a summary form the material facts on which the party pleading relies..” (italics ours)
It may be observed that the rule pertaining to the content of pleading in England is almost identical with Order XXXIII rule 5 of the High Court Rules of the former Eastern Nigeria aforesaid. Both rules require the party pleading to set forth in his pleading the material facts on which he relies. In an action of libel a plaintiff must of necessity rely on the precise words alleged to be a libel for it is upon the perusal of the actual words complained of that the Court may determine whether or not the words convey defamatory meaning. That being the case, the words complained of are essential for the prosecution of the plaintiff’s case and are therefore “material facts” which must be pleaded in accordance with the provisions of order III rule 5. We hold therefore that it is not a sufficient compliance with the rule by a plaintiff to set out in his Statement of Claim the name of a newspaper, its date and the heading of an alleged libelous publication contained in the said newspaper without setting out the full text of the publication. In addition to the identity of the newspaper containing the publication, the full text of the publication or any part complained thereof must be set forth verbatim in the pleading. Ground 5 therefore fails.
We now proceed to consider Ground 1, which reads:-
The learned trial Judge erred in law in refusing to allow the plaintiff leave to amend his Statement of Claim on the morning of the judgment but before the judgment was read, even though there was no opposition to the amendment from the defence Counsel and even though the plaintiff could amend any time before final judgment.”
Learned Counsel for the appellant referred us to Order XXXIV of the High Court Rules and submitted that the learned Judge had a discretion at any stage of the proceedings to grant leave to a party to amend his pleading for the purpose of determining the real question in controversy. She drew our attention to the ruling which shows that the learned Judge refused to grant the amendment simply be-cause he had written his judgment. Learned Counsel contended that that was a wrongful exercise of the discretion under Order XXXIV. She submitted that an amendment of pleading ought to be allowed unless it would entail injustice to the other party or it would prejudice or embarrass or take him by surprise. She stated that as the publication complained of had been sufficiently identified in the writ and in the Statement of Claim and the newspaper containing the publication had been admitted in evidence, the amendment would not have done injustice to the respondents nor would it have embarrassed them or taken them by surprise.
In his reply, learned Counsel for the respondents simply reiterated the reasons given by the learned Judge for refusing to grant the amendment.
It may be pertinent to set out the provisions of Order XXXIV of the High Court Rules of the former Eastern Nigeria under which a Court may grant leave to amend a pleading. The Order provided:-
‘The Court may at any stage of the proceedings, either of its own motion or on the application of either party, order any proceeding to be amended, whether the defect or error be that of the party applying to amend or not; and all such amendments as may be necessary or proper for the purpose of eliminating all statements which may tend to prejudice, embarrass, or delay the fair trial of the suit, and for the purpose of determining in the existing suit the real questions or question in controversy between the parties, shall be so made. Every such order shall be made upon such terms as to costs or otherwise as shall seem just.”
The correct principle for the guidance of a Court in the exercise of its discretionary power under the Order was fully considered by this Court in Chief Ojah & Ors. v. Chief Evo Ogboni & Ors. (1976) 4 S.C.69. It was stated in that case that an amendment of pleading for the purpose of determining the real questions in controversy between the parties ought to be allowed unless such amendment will entail injustice or surprise or embarrassment to the other party or the applicant is acting male fide or by his blunder the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise. In other words, the discretion ought to be exercised so as to do what justice and fair play may re-quire in the particular case.
We agree with learned Counsel for the appellant that the amendment sought in the case in hand did not take the respondents by surprise for the respondents knew it, as shown by the closing address of their Counsel at the trial, to be the foundation of the appellant’s case. Furthermore, the publication had been admitted in evidence. The object of the amendment was to comply with the rule of pleading. We cannot see what Injustice would have been done to the respondents by such compliance. On the other hand, as the learned Judge had known that the appellant’s case could not stand without the amendment, it was not just and fair to the appellant to refuse him the amendment simply because the learned Judge had written his judgment. Under the circumstances of the case we think that the learned Judge erred in the exercise of his discretion. He ought to have granted the amendment. However, for reasons which we will state in the ensuing grounds of appeal, we shall not interfere with the final judgment of the learned Judge.
This brings us to the complaints of learned Counsel in Grounds 8 and 10, which read:-
“8. The learned trial Judge erred in law and misdirected himself on the facts by his failure to make a finding that the appellant suffered injury to his reputation and by non-direction to the evidence on record, inter alia, to the effect that ‘when the plaintiff arrived home some people at the Eke market were jeering at him’ (page 20 lines 17 – 18).
(a) there was evidence that the appellant was ridiculed and held in contempt as a result of this libel;
(b) jeering in the market place is a clear manifestation of ridicule and injury to reputation.
(Particulars of Error)
(a) the words complained of are defamatory in their ordinary meaning;
(b) the libelous publication was not based on any overt act of those who appointed him and were competent to remove him from his office in accordance with Exhibit ‘B’;
(c) there is no evidence to support the finding that only the appellant’s pride was (sic) and dignity was eroded.”
We may at this stage set out the publication complained of. It reads:-
“Chief S.O.N. Okafor deposed
The Enugu-Agidi Community Council and the Enugu-Agidi Brotherly Union, Nigeria, acting on behalf of the entire Enugu- Agidi Community of Njikoka Di-vision in the East-Central State, wish to inform the general public and in particular the East- Central State Government, the Commissioner of Police, East-Central State, the Commissioner for Divisional Administration Department, Cabinet Office, Enugu, and the Senior Divisional Officer, Njikoka, that following a vote of no confidence passed on Chief S.O.N Okafor by the Enugu-Agidi Community Council on 11th May 1974, and the Enugu-Agidi Brotherly Union, Nigeria on 16th May 1977 and the people of Enugu-Agidi have consequently terminated the Chieftaincy Agreement dated 23rd December, 1970 between the Community and Chief S.O.N. Okafor by which agreement he was installed by the people of Enugu-Agidi as the Okpalariam and traditional ruler of Enugu-Agidi the terms of which Chief S.O.N. Okafor had wantonly violated.
By the above decision, the people of Enugu-Agidi have automatically withdrawn their recognition of Chief S.O.N. Okafor as the Okpalariam and Traditional Ruler of the town. Any person or group of persons, institution or organisation dealing with Mr. S.O.N. Okafor in the above respect does/do so at his/her/their own risk and to the disaffection of Enugu-Agidi people.”
Learned Counsel for the appellant argued that the words complained of are defamatory in their meaning. She laid emphasis on the evidence that the appellant was jeered at by some people at the market place as establishing that the appellant was ridiculed and held in contempt as a result of the libel. Learned Counsel for the respondents replied that the words do not convey any defamatory meaning.
It is settled law that the question as to whether the words complained of are in their natural and ordinary meaning defamatory is a question of fact. In Lewis v. Daily Telegraph Ltd (1964) A.C. 234 at page 258, Lord Reis spelt out the test for determining the natural and ordinary meaning of words as follows:-
‘There is no doubt that in actions for libel, the question is what the words would convey to the ordinary man; it is not a question of construction in the legal sense.
The ordinary man does not live in the ivory tower and is not inhibited by the knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs …What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meanings of the words … But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning … The test according to the authorities is, whether under the circumstances in which the writing was published reasonable man to whom the publication was made would be likely to understand it in a libelous sense … What the ordinary man not avid for scandal would read into the words complained of must be a matter of impression.”
Reference may be made to few cases in which the test was applied to publication relating to termination of appointment. In Lord Williams Nevil v. Fine Art General Insurance Co. Ltd. (1877) A.C. 68 the question was whether the words ‘the agency of Lord Williams Nevil at 27 Charles Street, St. James’ Square, has been closed by the directors” were defamatory of the agent. The passage complained of occurred in a business letter sent by the insurance company to their customers. In his speech in the House of Louis, Lori Halsbury, L.C. stated at page 72 as follows:-
“In saying that, of course, it is necessary to take into consideration, not only the actual words used, but the context of the words, and the persons to whom the communications were made. The language is this: (His Lordship read it)
My Lords, I think it is desirable that the whole letter should be read together – It is a business communication for a business purpose. The West End Agency having been at one place, a business communication is made to a person who has an interest in knowing where the communications are to be addressed, and the new office is pointed out, and this passage occurs in the letter: ‘The agency of Lord William Nevil, at 27 Charles Street, St. James’ Square, has been closed by the directors.’ I am myself wholly unable to understand how any ordinary reasonable man could have construed that one sentence in a business letter as being the smallest reflection on Lord William Nevil’s capacity as a business man, or upon his honour, or how it could in any respect expose him to hatred, contempt or ridicule.”
In Beswick v. Smith (1907), 24 T.L.R. 169 the alleged libel, written by the employers of the plaintiff, was: “H. Beswick is no longer in our employ. Please give him no order or pay him any money on our account.” On appeal against the verdict of the jury that found the words libelous, Lord Halsbury said:-
‘The words complained of, if taken in their natural meaning, would not convey to the mind of a person of ordinary intelligence the impression that any imputation was being made against the plaintiff. He did not deny that there might be a publication under such circumstances as to make that which was prima facie not libelous convey in fact a defamatory imputation. But that was not the case here. It was quite impossible, and it seemed to him to be quite natural, that some of the defendant’s customers might, in the absence of notice, have sent money or orders to the plaintiff. The ordinary and reasonable inference to be drawn from the notice which was sent was, perhaps, that the employment had terminated because the parties had quarreled, but certainly not that the defendant was imputing anything criminal to the plaintiff. Such an inference seemed to him to be the invention of an imagination already tainted with the idea that there was something wrong in the termination of the employment. He thought that the appeal should be allowed, and judgment entered for the defendant.”
The issue In Morris & Anor. v. Sandiess Universal Products (1954) 1 All E.R. 47 was on an interlocutory point as to whether the words “We wish to bring to your notice the fact that we have dismissed (the plaintiff) from our employ, he having been our representative in your area, and finally, that he has now no connection whatsoever with our company,” were capable of conveying defamatory meaning. The Court of Appeal answered in the affirmative and pointed out, however, that the question whether or not the words were in fact defamatory was for the jury to answer when the case came to be tried.
We shall now proceed to consider whether the learned Judge in the case in hand in his finding that the words complained of were not defamatory in their natural and ordinary meaning. As the authorities have shown, the test is not what a man avid of scandal or a jester, or an opponent of the person allegedly defamed would read into the words complained of nor is it how any of such persons would react as a result of his reading the words. It is whether reasonable readers of the Renaissance under the circumstances of the case were likely to understand the publication in a libelous sense.
We agree with the learned Judge that there is nothing libelous in the publication when it is fairly read, having regard to the purpose for which it was published. The publication simply informed the public that the community that had appointed the appellant as the Okpalariam had terminated that appointment because he had committed a breach of the terms of his appointment and consequently the community would not be responsible for anything done by him in that capacity.
We cannot see how a reasonable reader of the Renaissance would understand that publication so as to expose the appellant to hatred, contempt or ridicule. We do not think that under ordinary circumstances a reasonable man will jeer at a Chief who has lost his chieftaincy title. On the contrary, in the absence of special circumstances, a reasonable man is likely to show sympathy to such an ex-chief. Accordingly, we uphold the finding of the learned Judge that the words complained of were not defamatory in their natural and ordinary meaning. That being the case, all the other grounds argued are abortive and lack merit.
We hereby dismiss the appeal with costs assessed at N336.00 in favour of the respondents.