3PLR – ARIFALO ADEDIPE V. W.J. FALAIYE

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ARIFALO ADEDIPE

V.

W.J. FALAIYE

FEDERAL SUPREME COURT OF NIGERIA

15TH MAY, 1957.

F.S.C.232/1956

3PLR/1957/8 (SC)

BEFORE THEIR LORDSHIPS:

OLUMUYIWA JIBOWU, AG. F.C.J. (Presided and Read the Judgment of the Court)

M.C. NAGEON DE LESTANG, F.J.

MYLES JOHN ABBOTT, AG. F.J.

MAIN ISSUES

TORT AND PERSONAL INJURY – LIBEL – Defence of Fair comment – When available.

TORT AND PERSONAL INJURY – LIBEL – Malice – Deliberate mis-statement of facts – Evidence thereof.

PRACTICE AND PROCEDURE – DAMAGES – Assessment of by appellate court – When proper.

REPRESENTATION:

1. O. Soetan (with him Miss Grant) – for Appellant.
2. M. A. Akinloye -for Respondent.

MAIN JUDGMENT

JIBOWU, AG. F.C.J. (Delivering the Judgment of the Court):

The appel­lant was the plaintiff in an action in which he claimed £10,000 damages for libel against the defendant, now respondent. The action was heard by Stuart, J., sitting in the High Court at Akure and dismissed on the 10th of March, 1956, with costs, and this is an appeal from that judgment.

The libels complained of are contained in paragraphs 1 and 5 of a letter written by the defendant to the District Officer, Ondo Division, Ondo, on the 19th of February, 1953, with copies to the Health Office, Akure, the Re­sident, Ondo Province, Akure and the Native Authority Council, Akure. The original letter was tendered in evidence and marked Exhibit “DD.”

In paragraph 4 of the Statement of Defence the defendant denied that paragraph 1 of the letter referred to the plaintiff, and Counsel for the plaintiff/appellant therefore confined his arguments on this appeal to the words complained of in paragraph 5 of the aforesaid letter, which reads:­”Summarily, the main source of Akure N.A. irregularities is the evidence of sense of possession without sense of responsibility. In order to effect a clean up of this N.A., the choice before Government Offices and Heads of Departments is clear. It is a choice between cliqueing with councillor Arifalo Adedipe (who was falsely collecting money under false pretences to influence Coun­cil’s decision) and thereby run the risk of tarnishing their names or reputations because ‘birds of the same feather flock together’, or steer clear of him to administer impartially and enjoy public confidence.”

The defence to the words complained of is set out in paragraph 3 of the State­ment of Defence, which reads:

“The defendant admits writing the words set out in paragraph 3 of the statement of claim but states that so far as the said words consist of allegations of fact, they are true in substance and in fact; and in so far as they consist of expressions of opinion, they are fair comments made in good faith and without malice upon the said facts, which are matters of public interest.”

This defence, on the authority of Sutherland v Stopes,1925 A.C.45 amounts to a defence of “Fair Comment.”

To succeed on a plea of “Fair Comment,” the defendant must prove that the words complained of are an expression of his opinion based on true facts, made honestly and fairly on a matter of public interest. The paragraph complained of contains an allegation that the plaintiff “was falsely collecting money under false pretences to influence Council’s decision.” This amounts to an imputation of the criminal offence of obtaining money by false pre­tences.

It appears from the Record of Appeal that the facts on which the defen­dant relied in support of his defence of fair comment were that he learnt that a sum of £200 was deposited with the plaintiff by one Dockrell and one Akinfolarin on behalf of the firm of Finch & Co., timber merchants, to be paid as a dash to the Deji of Akure and Council if they recommended their application for a timber concession at Aponmu in Akure District to the Western Region Government; that the money was returned to Akinfolarin about a year after the deposit after the concession had been granted to another firm which was alleged to have deposited £500 with a person not dis­closed for the same purpose.

Akinfolarin gave evidence for the plaintiff that he deposited the money with the plaintiff, not at his request nor for himself, but only as a sort of stakeholder until the transaction was through. Letters which passed bet­ween the plaintiff and Akinfolarin about the deposit and its return were put in evidence and marked Exhibits “A” and “B.” It is clear from the evidence of both the plaintiff and Akinfolarin and from Exhibits “A” and “B,” that, although the plaintiff knew that the money was being deposited for an illegal and corrupt purpose, he did not obtain the money by false pretences.

The learned Counsel for the appellant argued that the defence of fair comment was not made out as the defendant had failed to prove that the plaintiff obtained the sum of £200 by false pretences. With this submission

I completely agree. With respect to the learned trial Judge, he erred in hold­ing that the allegation made in paragraph 5 of the letter in question is true as there is no evidence to support such a finding.

The defendant produced Akinfolarin’s letter to him, Exhibit “I,” en­closing a copy of plaintiff’s letter, Exhibit “A.” It is obvious that he did not .gather from Exhibits “A” and “I” that the plaintiff was collecting money by false pretences to influence the Council’s decision. He, therefore, must have known that he was writing what was untrue when he wrote paragraph 5 of the letter in question. This, in my view, is evidence of malice, as he knew the true facts and yet deliberately mis-stated them.

There is no doubt that this case shows up the corrupt practice being in­dulged in by the Akure Native Authority and the practice cannot be too strongly condemned. It is a most reprehensible practice for Chiefs to de­mand or receive dashes for recommending applicants for timber concessions and the practice cannot be justified on the ground of custom. A custom which involves corruption must be scrapped.

I would, for reasons given above, allow this appeal, set aside the judg­ment of the Court below with the order for costs.

Counsel on both sides have asked this Court to assess damages payable should the appellant’s appeal succeed. Respondent’s Counsel also asked that nominal damages be awarded to the appellant. After taking all the cir­cumstances into consideration, I would award the appellant £200 damages and enter judgment for that amount, with 75 guineas costs in the Court below and 52 guineas costs of this appeal.

DE LESTANG, F.J.: I concur.

ABBOTT, AG. F.J.: I concur.

Appeal allowed