3PLR – AMALGAMATED PRESS V. ALLEN

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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AMALGAMATED PRESS

V.

ALLEN

FEDERAL SUPREME COURT OF NIGERIA

F.S.C. 118/1960

8TH JUNE, 1961.

3PLR/1961/13  (FSC)

 

BEFORE THEIR LORDSHIPS

LIONEL BRETT, F.J. (Presided),

JOHN IDOWU CONRAD TAYLOR, F.J.

SIR VAHE BAIRAMIAN, F.J. (Read the Judgment of the Court)

 

BETWEEN

1. AMALGAMATED PRESS (OF NIGERIA) LTD.
2. ALADE ODUNEWU
3. BONAR EKANEM

 

AND

REGINALD BANHAM ALLEN (Alias Darby Allen)

 

EDITORS

[Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Eleanya Kalu, Eleanya Ugochi Vine]

 

MAIN ISSUES

 

TORT AND PERSONAL INJURY – DEFAMATION – Libel – distinction between content/article capable of defamatory meaning and article bearing defamatory meaning alleged – How proved

 

TORT AND PERSONAL INJURTY– DEFAMATION – LIBEL:- Damages – What to take into consideration – Conduct of Defendant – Effect.

 

PRACTICE AND PROCEDURE -Action for Libel – Purpose of Plaintiffs witnesses – Need to be conclusive.

 

PRACTICE AND PROCEDURE – APPEAL: Damages for libel- Award of – Attitude of Appellate Court to review quantum of award – relevant considerations

 

SPORTS LAW: Administration of the Nigerian Football Association – defamation and what the court would not consider fair comment

 

REPRESENTATION

1. A. Odesanya (M.O. Owodunni and Akinyele with him) for the Appellants
2. K. I. Makanju (K.A. Kotun and Sanyaolu with him) -for the Re­spondent.

 

MAIN JUDGMENT

 

BAIRAMIAN, F.J. (Delivering the Judgment of the Court):

 

The defen­dants complain against the judgment given by Bennett, J., in the High Court of Lagos, on the 31st August, 1959, in suit LD 23/59, which orders them to pay the plaintiff £2,000 as damages for libel and 100 guineas as costs, and also grants the plaintiff an injunction to restrain the defendants from pub­lishing the same or any similar libel.

 

The libel in question was published in the issue of the Daily Service dated the 7th January, 1959, under the caption “Reshuffle NFA Cabinet”. Of the portion set out in paragraph 14 of the Statement of Claim it is suffi­cient to quote the following:­

 

“Total Gates: Why does he have to hold these two offices as if to say nobody else is good enough to be either the secretary or the treasurer of the Association.

 

Is it because Darby Allen releases after every NFA big match as it is the practice in the civilised world the total gates collected for public information?

 

After the world cup final of 1950 in Brazil, the whole world know that a record crowd of well over 200,000 paid £120,000 to see the cup final.

 

Even in the ordinary league side football in England the total gate is openly made public declaration. Darby Allen knows all about this. And is he doing the same thing in Nigeria as treasurer of the NFA? If he did not, what then are his claims to justify his return yearly as treasurer of the NFA?

 

I am not aware and nobody is that the NFA money is invested in revenue yielding enterprises or that its account is audited during the season and a certificate issued.”

 

It is plainly an attack on the plaintiff mainly as treasurer of the Nigeria Foot­ball Association. Paragraph 16 of the Statement of Claim follows an aver­ment in paragraph 15 that the publication was false and malicious, and states that:­

 

“The plaintiff avers that the article quoted in paragraph 14 above meant and was understood by their readers to mean:

 

(a)     That the plaintiff is a dishonest person who collects Gate Fees without accounting for same to the Nigeria Football Association and to the public.

 

(b)     That the plaintiff holds the office of Secretary/Treasurer to the detriment of the Nigeria Football Association.

 

(c)     That the plaintiff is unworthy to hold the office of Secretary/Treasurer of the Nigeria Football Association because he the plaintiff does not release for public information the gate fees collected after every Nigeria Football Association big match as is the practice in the civilised world.

 

(d)     That the Plaintiff in order to cover up his mismanagement of the Association fund does not submit its accounts for au­diting and a certificate therefor issued.”

 

In their defence the defendants said (in paragraph 8) that they denied that the publication was false or malicious, or that it could bear the meanings al­leged or any defamatory meaning; in paragraph 9 they said that the article was a fair comment on a matter of public interest; in paragraph 10 they made the rolled up plea of truth of the facts stated, fair comment, and a publication made in good faith without malice; and in paragraph 11 they said they would rely for mitigation of damages on the fact that they published an apology on the 14th January, 1959, at the plaintiff’s request, with which (according to paragraph 12) the plaintiff made them understand he would be satisfied and not pursue the matter further.

 

The plaintiff’s solicitor had written to the defendants on the 8th January, 1959; he referred to the article in question, and demanded “an apology coupled with a retraction of all the false imputations contained in the said publication”; he asked that a draft of the apology be sent to him to approve. On the 14th of January, the defendants published the following;

 

“REJOINDER”

 

“Since the critique captioned “Reshuffle NFA Cabinet” ap­peared in this column on February 7, it has been brought to our notice that it is not the business of Mr. Darby Allen, the Secret­ary/Treasurer of the Nigeria Football Association to release gates collected for public information. That is the concern of an NFA body. It has also been brought to our notice that Mr. Allen consistently submits to the Association’s Committee the audited accounts of the Association.

 

“The `Daily Service’ hereby withdraws whatever imputations contained in the article referred to and regrets whatever incon­venience or embarrassment they might have caused Mr. Allen. This paper appreciates Mr. Allen’s valuable contributions to Nigerian soccer and it is never our intention to damage the repu­tation which the gentleman had created in this country. – Editor.”

 

The plaintiff saw it and wrote on the 14th, through his solicitor, demanding £1,000 as damages to be paid within seven days, or else he would sue to enforce his claim; and he began his action at the end of the month. He was suc­cessful; and the defendants have appealed.

 

The first three grounds of appeal in the amended statement of grounds are (1) that the innuendoes alleged in the Statement of Claim were not proved; (2) that the words complained of are not reasonably capable of a de­famatory meaning; and (3) that those words cannot reasonably be held to be in fact a libel on the plaintiff. With those grounds learned Counsel also ar­gued the old ground (c), in his notice of appeal, that the words complained of do not bear the innuendoes alleged by the plaintiff. In effect, the argument is that (a) the words complained of do not bear any defamatory meaning, and, if they do, then (b) they do not bear the defamatory meaning alleged, and that this meaning was not proved.

 

In the light of the Rejoinder, which has been quoted, those arguments are surprising. There is this sentence;

 

“The `Daily Service’ hereby withdraws whatever imputations contained in the article referred to and regrets whatever incon­venience or embarrassment they might have caused Mr. Allen.”

 

“Imputations”, and “regrets” on their account: those words dispose of argu­ment (a) out of the defendant’s own mouth. And argument (b) is also dis­posed of by the contents of the so-called “Rejoinder”. It begins by saying that Mr. Allen was not to blame for the fact that the gate-receipts were not published; and it goes on to say that Mr. Allen “consistently submits to the Association’s Committee the audited accounts of the Association.” Then follows the sentence of apology I have quoted, and the final sentence is that:­

 

”This paper appreciates Mr. Allen’s valuable contributions to Nigerian Soccer and it is never our intention to damage the repu­tation which the gentleman had Created in this country.” – “Editor”.

 

In substance the innuendoes alleged by the plaintiff are within that apology, which is neat and to the point: and there is no need to review the evidence. I think that ground (5) is based on a misconception; it states that it was a mis­take in law to regard:­

 

“as relevant and/or conclusive the opinion of plaintiff’s witnesses to the effect that the publication imputed dishonesty to the plain­tiff.”

 

If that is so, then there is no need in a libel case for the plaintiff to call any evi­dence; but in such a case witnesses are usually called to say in what sense they understood the words complained of, for the sake of proving the de­famatory meaning alleged by the plaintiff. Their evidence is relevant; whether it is conclusive depends on whether it is fair and reasonable. As I gathered in the course of the argument, there was a confusion of thought: there is the question whether an article is capable of a defamatory meaning, and there is the further question whether the article bears the defamatory meaning alleged: it is only on the further question that the evidence bears, for the first question is one which is for the trial Judge to answer by looking at the article, whilst the second question is one for the jury to decide in the light of the evidence adduced on either side.

 

As for ground (4), it complains of a passage in the judgment which I quote in full:­

 

“In the present case we have a publication which is admitted to be untrue, and which four intelligent and reasonable ordinary men, who are apparently quite unbiased and disinterested, consider imputed dishonesty in Mr. Allen in his office as Honorary Trea­surer of the N.F.A. Considering the rejoinder published on the 14th of January, the plea of fair comment is strange”.

 

The appellants’ complaint is that neither on the pleadings nor on the record was it admitted that the publication was untrue. In the libel it was said that the accounts were not audited; in the Rejoinder it is said that:­

 

“It has also been brought to our notice that Mr. Allen consis­tently submits to the Association’s Committee the audited ac­counts of the Association”.

 

That is an admission that the statement about no audit in the libel was un­true. The shaft that gate-receipts were not published was tipped with the poison that the accounts were not audited. The gravamen of the libel lay there; and that was I think what the learned Judge had in mind when he said that the publication was admitted to be untrue.

 

Ground (6) is merely a red herring: it complains that the Judge was wrong in saying that the plea of fair comment failed when, in so far as the publication complained of consisted of comments, such comments were fair. One is not concerned so much with this and that and the other comment about not making a profit out of transport and the rest: one is concerned rather with the poisonous shaft I have mentioned; the comment that the plaintiff is not fit to continue as treasurer is based on an untrue statement about no publication of gate-receipts and no audit of accounts; and that com­ment was unfair because the plaintiff was not to blame if gate-receipts were not published, and also because it was untrue that he did not have his ac­counts audited. The remaining complaints are that the damages and costs awarded are excessive, and that there was no justification for granting an in­junction. There had been an earlier article in the Daily Service of the 23rd October, 1958, which contained the following: it was written at a time when Mr. Allen was on leave abroad:­

 

‘Were they eating on N.F.A. tickets? They’ve got to tell the pub­lic what the gate takings this year amount to and that is exactly what I will hit at after the international match. The public must know how much the N.F.A. earns this year from the gate pro­ceeds and how much Darby Allen handed over.”

 

That was bad enough; it was followed by the libel of the 7th January, 1959, which was the subject matter of this action. And Mr. Allen said in evidence that there had been many attacks on him before the 23rd October, 1958. It was in that light that the learned Judge granted an injunction.

 

The argument before us was rather to this effect: Mr. Allen is gone for good; he has retired from the public service; he is an expatriate; there is no question of his being libeled again; so, there is no longer any need for the in­junction. The argument does not appeal to me.

 

For one thing, it seems to me that the question is rather whether the in­junction was justified when granted. For another, it seems to me that, if the defendants have no intention to attack Mr. Allen again, the injunction does them no harm. If the injunction is removed, and if he is attacked again, things become difficult for him. He has left a reputation behind which he doubtless values, and which he would not like to see smudged again. If he should wish to become a secretary or treasurer of a football association where he now is, attacks on his reputation in Nigeria might affect him. I see no sufficient reason for removing the injunction. There is, besides, a trait of obduracy in the defendants, which I shall mention presently.

 

The so-called “Rejoinder” of the 14th January, 1959, is in fact an apol­ogy: it is a regretful acknowledgement of imputations having been made in the article of the 7th January, an appreciation of Mr. Allen’s services to Nigerian football, and an assurance that no offence was intended; and the wrongful statements in which the imputations were wrapped up were cor­rected. That was an apology in the current sense of the word; and, yet, it was called a “Rejoinder” – word which means a reply and implies a retort to what had been brought to the defendants’ notice. The right heading would have been “Apology”; but it was not used, I do not know why, unless it be that the Editor was affected by the obduracy of pride.

 

The learned trial Judge, referring to paragraph 11 of the Defence, which mentions the apology in the Rejoinder in mitigation of damages, says in his judgment, “it is hardly so in my view and it clearly admits the falsity of much of the article complained of’. He clearly does not take it into account when assessing damages. What he says, immediately before making his award of damages, is as follows:­

 

“The plea of fair comment fails without any doubt, and the pub­lication of October 23rd, 1958, is an indication of the third defen­dant’s state of mind. The two publications were made recklessly and maliciously, and I use malice in its ordinary sense.”

 

And he proceeds to assess the damages at £2,000. There is a complaint that the amount is too high.

 

Counsel for the plaintiff/respondent in this appeal has reminded us that a court of appeal does not disturb an award of damages except where there was a mistake in principle, or where the amount is manifestly too high or manifestly too low. Learned Counsel has also reminded us that, in assessing damages in libel, the jury is entitled to take into account the conduct of the defendant down to the end of the case, and that here the defendants have, by their defence, shown that they are impenitent.

 

To those principles I subscribe; but I do think that, in assessing the dam­ages, the learned Judge overlooked two factors in this case. One of them is that, despite the misnomer of calling it a Rejoinder, the defendants did make an apology. The other is that the learned Judge overlooked the fact that Mr. Allen was at the top of the tree in his employment: he was the Fed­eral Government Printer, and there is no reason to think that his employ­ment was at all affected by the libel. He was of course entitled to vindicate his good name for honesty and his good faith in his duties as secretary, and, more particularly, as treasurer of the football association, and he was enti­tled to damages. But I think that the damages awarded were manifestly too high; and that was because the two factors I have mentioned were over­looked: but I bear in mind that the apology was called a Rejoinder, and that the suit was defended. I think that the proper amount is £1,000 pounds.

 

On the costs being excessive, learned Counsel did not say anything, and the costs below will not be disturbed.

 

As regards the costs of appeal, the defendants would have done better if they had merely complained of damages awarded; most of the hearing was spent on argument about its not being a libel. Bearing in mind that the re­spondent resisted the appeal on the amounts of damages, I think that the proper course is to let each party pay its own costs of appeal.

 

The appeal is allowed to this extent only, namely that the damages are reduced to £1,000 (one thousand pounds), otherwise the appeal is dismis­sed; each party is to stand its own costs of appeal; the defendants shall pay the plaintiff’s costs in the court below as stated in the judgment of that Court.

 

BRETT, F.J.: I concur

 

TAYLOR, F.J.: I concur

 

Appeal allowed in part.