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F.S.C. 215/1962

18TH NOVEMBER, 1963.

3PLR/1963/31  (FSC)





JOHN IDOWU CONRAD TAYLOR, J.S.C. (Presided and Read the Judgment of the Court)





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



APPEAL – Damages – Award of – When appellate court will interfere.

DAMAGES – Assessment of – Circumstances where appellate court will not interfere.

LIBEL – Defamation – Onus of proof – On whom lies – How discharged.

WORDS AND PHRASES – “Intrigued” – Meaning of.



Chief F.R.A. Williams, Q. C. (with him, O. Solanke) -for the Appel­lant.

Chief M.E.R. Okorodudu, Q. C. (with him, O. C. Obi) – for the Re­spondent.



TAYLOR, J.S.C. (Delivering the Judgment of the Court): The plaintiff/re­spondent sued the present appellant and another defendant in respect of a libel contained in an article appearing in the Daily Service Newspaper of the 13th January 1960, and claimed the sum of £50,000 as damages for the said libel. The particular words complained of as bearing the “sting” in the article are set out in the claim and read as follows:


“Already everybody knows and that includes Dr. Azikiwe him­self that he is now a completely spent force and any glow of fire that might remain in him has been extinguished by Chief Okotie­-Eboh who has now successfully intrigued to kick him upstairs.” The learned trial Judge in the High Court of Lagos, after hearing evidence, found in favour of the present respondent against the present appellant and awarded a sum of £3,000 as damages in favour of the former. The appellant has appealed to this Court and six additional grounds of appeal were filed in support of the appeal.


Learned Counsel who appeared for the appellant divided his arguments into two parts. In the first he argued that the words complained of are incap­able of bearing the meaning or innuendo attached to them by the respon­dent, and in the second that the trial Judge took into consideration in the as­sessment of damages, a matter he should not have so taken into account. We did not call upon learned Counsel for the respondent to reply to the first point raised for there can be no doubt at all that the words complained of were clearly defamatory. There cannot possibly be an innocent interpreta­tion attached to the word “intrigued” which is defined in the Oxford Dictio­nary as follows:­


“To trick, deceive, cheat: to perplex. To carry on underhand plotting or scheming……”


There is no need to say any more in this judgment than that the learned trial Judge was right in coming to the conclusion that the words in their context were defamatory. It only remains for us to consider whether the trial Judge erred or not in his assessment of Damages. The argument put forward by Chief Williams, Q.C., for the appellant is that there was no issue of “ex­press” malice, which must be differentiated from “implied” malice, before the trial Court which erred in taking into account that question; that the ap­pellant Company was merely the publisher of the paper in which the article was found and therefore the malice of the writer cannot be imputed to that of the publisher. Our attention was drawn to the following passages in the judg­ment of the trial Judge which reads thus:­


“Nothing has been shown to me or proved in the political cir­cumstances pervading at the material time to spot-light the plain­tiff in such lurid light and no explanation whatsoever has been forthcoming to prove the honest state of mind of the writer.”


and a little lower down the Judgment continues in these words:­


“On the other hand, if they are regarded as comments they are unfair in their simple ordinary signification and certainly could not have been the genuine honest impression of a free and un­biased mind. This is conclusive evidence of malice in the cir­cumstances.”


Chief Williams, Q.C., argued that the trial Judge was here considering the question of “express” malice, and was imputing to the appellant Com­pany the “express” malice of one Rosiji, the writer, who was not a party to the action.


Chief Okorodudu, Q. C., on the other hand, argued that the question of malice was put in issue on the pleadings and that the Appeal Court will not interfere in the assessment of damages by the Court below unless it is estab­lished that the trial Judge proceeded upon a wrong principle of law or that his award was clearly an erroneous estimate.


In this case on appeal, it is averred in paragraph 8 of the Statement of Claim that:­


“On page 12 of the issue of the said Daily Service Newspaper dated 13th January, 1960, under the heading “Zik asked to resign N.C.N.C. leadership” the defendants falsely and maliciously printed and published or caused to be printed and published of the plaintiff and of him in relation to his conduct as a public man the following words……………..”


In the present appellant’s Statement of Defence it is averred in paragraph 4 as follows:­


“The 1st defendants admit that they published the words com­plained of in paragraph 8 of the statement of Claim but deny that they did so maliciously”.


It seems clear from these paragraphs in the pleadings that the question of malice was put in issue by the parties and this explains why the trial Judge made a finding of malice as put in issue. The passage quoted from the judg­ment merely states:­


“This is conclusive evidence of malice in the circumstances.”


It does not say “express” malice, and there is no reason to think that the learned Judge had express malice in mind when there was no allegation of express malice.


It is in our view, therefore, sufficient for the pleading to contain the words set out in paragraph 8 of the Statement of Claim, to put the question of malice in issue, and the onus lies on the plaintiff to prove that the words are false in fact, and also that they were published maliciously or without lawful occasion or just excuse. There is no quarrel with the finding of the trial Judge that the publication was unjustified and that no premises were shown for same.


It was argued on the question of damages that as the appellants were merely publishing a Release by Rosiji the damages should be less than they would have been if the appellants were themselves the authors of the article complained of. This point was never put before the trial Judge, and the ad­dress of Counsel on the issue of damages reads thus:­


“With regards to damages – circulation of paper was not proved. Refers to paragraph 7 of the Statement of Claim. Refers to paragraph 3 of the Statement of Defence. Court cannot assess circulation. This will reduce the damages to normal.


If Court finds against us on this case, allegation is a trivial cause of action.”


The only matters raised dealt with the circulation of the paper and the al­leged triviality of the cause of action. These two points were not raised on appeal before us. On the face of it, the publication was a gross libel and since we are of the view that it has not been shown that the trial Judge took into ac­count matters which should not have been considered in his assessment of damages, we would dismiss this appeal with costs assessed at 39 Guineas.


BAIRAMIAN, J.S.C.: I concur.


MORGAN, AG. J.S.C.: I concur.


Appeal Dismissed.


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