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CHIEF OBAFEMI AWOLOWO
KINGSWAY STORES (NIG.) LTD. AND ANOR
ADEFARASIN, C. .I.,
Akin-Olugbade (with him Somoye and Olusanya – for the Plaintiff
Brian Neill (with him Nylander) – for the 1st Defendants
Brian Neill (with him J. E. C. David) – for the 2nd Defendants
LIBEL AND SLANDER-Libel-Whether distributors of books containing defamatory matter published by third party are liable.
Libel and Slander-Libel-Defamatory matter published in a book-Defence of innocent dissemination-Onus of proof of lack of knowledge that book contains defamatory matter lies on Defendants.
Libel and Slander-Libel -Damages-Principles of assessment.
In this action a Plaintiff claims against the Defendants, jointly and severally, a sum of £100,000 being damages for libel written of and concerning the Plaintiff on pages 234 and 235 of the book entitled “The one-eyed man is King” written by Ian Brook (whose real name is Ian Brinkworth), published by Cassell and Company Limited in England and sold and distributed in Nigeria by the Defendants.
The words complained of read as follows:-
“One event need no inflation. The Apalara murder case filled the papers, not because it was a murder, not even because it was a cult mur-der-the African has none of the obscene interest in murder that the European has. Death is too near to him and he is too much a man of faith to look upon it as a source of kicks. The Apalara murder case claimed attention because the murder weapon, a sword stick, was found in the house of Obafemi Awolowo, the Prime Minster of the Western Region. The Apalara was a Yoruba cult. Most of the people were Ibos. Investigations were not easy. Awolowo was charged with complicity in the case and acquitted. A man was sentenced and the verdict reversed on appeal. The murder remained unsolved.
The Resident, Ijebu-Ode, where the murder had taken place, was not satisfied and pressed for more investigations to be made. The powers that be seemed to him too complaisant in accepting a situation which left those responsible for the crime disturbingly unharried. He insisted on showing a regard for the Rule of Law which was embarrassing. He was retired with lightning suddenness, a demonstration of decisive action almost imperial in flavour and puzzlingly anachronistic in the prevailing climate of colonial government by irresolution favoured by the Colonial Office. The Resident, Ijebu-Ode, had spent his whole working life in Nigeria and was a man of devotion and duty. The shock of his sudden dismissal was too much and he threw himself under a bus in the Channel Islands, in Jersey. It is unlikely that the men who drove him to his death sleep uneasi-ly. It would be nice to think they did.”
It is convenient here to add the paragraph in the book immediately fol-lowing the passage reproduced above as it featured prominently in the argu-ments of Counsel. It reads:-
“Politicians were not slow to appreciate the significance of the Resident’s dismissal. Residents were, in truth, no longer God, and Justice had discarded her blindfold. The Rule of Law had become selective. The Rule of lawyers, which had existed de facto for a long time had now been recognized de jure, tacitly but clearly. It was a sorry way to shuffle the Rule of Law off the African stage, a shabby admission that British policy now recognized the need to trim even the sails of justice. It also did a dis-service to Awolowo who, undoubtedly, would have preferred his complete innocence of any complicity in the murder to have been established not only by the verdict of the court which tried him but by the arrest of those responsible for the murder”.
Both Defendants do not deny that they had distributed copies of the book in question in Nigeria. The 1st Defendants, Kingsway Stores of Nigeria Limited, averred that they had sold 106 copies of the book and the 2nd Defendants, Thomas Nelson and Sons Limited, averred that they had distributed 156 copies of the book. The Plaintiff, in paragraphs 20 and 21 of the Statement of Claim pleaded as follows:
Paragraph 20-”The Plaintiff was neither involved in any way nor charged with complicity in the Apalara Murder case or any murder case in his life for that matter. The murder weapon, a sword stick, was not found in the house of the Plaintiff’.
Paragraph 21- ‘The Plaintiff was not charged with complicity in the case and acquitted as falsely and maliciously stated in the book sold by the defendants to the public. Apalara murder case took place in Lagos where one Alfa Apalara, a Muslim preacher was killed in 1953. There was no question of the Plaintiff preferring his complete innocence to be estab-lished”.
In paragraph 17 of the statement of defence of the 1 st defendants and para-graph 13 of the statement of defence of the 2nd defendants they pleaded (in words which are identical):
“Save that the Plaintiff, who was then the Minister of Local Government, Western Nigeria, was called as a witness for the defence in the case of the Queen v. Sadiku Salami in 1952 the First Defendants (and 2nd defendants) admit that the Plaintiff has not been involved in any other murder case. The First Defendants (and the 2nd Defendants) will refer at the trial to the transcript of the said case”.
The Plaintiff filed a reply, without leave of the Court, to the foregoing averment but in the course of the trial obtained the leave of the Court to file it. The reply reads:
“With regard to paragraph 17 of the statement of defence by the first defendants and paragraph 13 of the statement of defence of the 2nd defen-dants the Plaintiff will contend at the trial that his being called as a witness in the case of the Queen v. Sadiku Salami did not amount to his involve-ment in the murder case and that the plea of Sadiku Salami’s case is a malicious insinuation calculated to justify and aggravate the damage done to the reputation of the Plaintiff”.
At the commencement of the trial learned Counsel for the Plaintiff argued that paragraphs 11, 12 and 13 of the statement of defence of the 1st Defendants be struck out. Learned Queen’s Counsel for the Defendants, Mr. Neill, agreed to this and those paragraphs in the statement of defence of the 1 st defendants were struck out. Counsel for the Plaintiff also contended that paragraph 17 in the statement of defence of the 1st Defendants and para-graph 13 in the statement of defence of the 2nd defendants, to which he had joined issue, be struck out for being embarrassing scandalous and an abuse of the process of the Court. In a considered Ruling the Court thought that as those paragraphs then stood, they should be struck out but also indicated that it would consider an amendment to them, should Counsel for the defence feel so inclined, acting under the provisions of Order XXXII Rule 19 of the rules of this Court. Thereupon learned Counsel for the Defendants applied for and obtained leave to amend the paragraphs in question to read as fol-lows:
“Save that the Plaintiff who was then the Minister of Local Government, Western Nigeria, was called as a witness for the Defence in the case of Queen v. Sadiku Salami.
“Where, an action for libel is tried by a judge alone without a Jury, it is he who has to arrive at a single “right” meaning as the “natural and ordi-nary meaning” of the words complained of; and with the concentration of functions in a single adjudicator, the need for his distinguishing between meanings which words are capable of bearing and the choice of the one “right” meaning which they do bear disappears. It would be carrying arti-ficiality too far, even for the law of libel, to suggest that a Judge sitting alone must approach the issue as to the natural and ordinary meaning of the words complained of by asking himself not only one question
When I come to consider the words I would be asking myself the one question: “What is the nature and ordinary meaning in which the words would be understood by reasonable men to whom they were published?
It is right to bear in mind that a statement does not give rise to a cause of action merely because it causes damage to the Plaintiff. The statement must be false and it must also be defamatory of the Plaintiff. The statement must itself contain, whether expressly or by implication, a statement of fact or expression of opinion which would lower the Plaintiff in the estimation of a reasonable reader. (See Astraire v. Champling (1966) 1 W.L.R. 210; See also Gatley, on Libel and Slander, 6th edition paragraphs 81 to 132). In deter-mining whether the words are capable of a defamatory meaning the Judge should construe the words according to the fair and natural meaning which would be given them by reasonable persons of ordinary intelligence and would not consider what persons setting themselves to work to deduce some unusual meaning might succeed in extracting from them. Again, the words complained of must be construed as a whole. One has to take into consider-ation, not only the actual words used but the context of the words as words which are not in themselves defamatory, may from the whole context in which they are published, convey a defamatory imputation. On the other hand, other passages in a text may take away the sting of some sentence or sentences which standing alone may be considered defamatory. This princi-ple is well stated by Lord Denning, M.R. in Slim v. Daily Telegraph Limited
1968 1 A.E.R. p. 497 at page 502 when he stated:
“…… In the first place, I think that when a Plaintiff complains of the words in their natural and ordinary meaning, he must accept that meaning as it is with all the derogatory imputations that it conveys. He cannot select some of the imputations and reject others as he pleases. The reason is because, when he complains of libel, he complains of the injury which the words do to his reputation in the mind of the ordinary reader. Now the ordinary reader takes the imputations as a whole. He does not divide them up into bits. Nor should the plaintiff be able to do so ……
With that passage I desire to express my respectful concurrence. I will therefore consider together, as I am invited to do by learned Counsel for the defence, all the three paragraphs appearing at pages 234 and 235 of the book, Exhibit 1, which have been reproduced above.
I have looked at and considered all the three paragraphs and I am satisfied that the words in them, taken together, are not only susceptible of a defamatory meaning, but that in the mind of a reasonable man they would constitute an imputation which is completely defamatory upon the Plaintiff. The words in the fast two paragraphs were, in effect, saying that the Apalara murder case filled the Nigerian papers, not only because the murder weapon was found in the house of the Plaintiff who (as falsely stated in the passage) was then the Prime Minister of the Western Region of Nigeria and who was charged with complicity in the murder and was acquitted. The passage also stated in effect, that because there had been a miscarriage of Justice the Resident of Ijebu-Ode, the place where the murder took place, pressed for more investigations but the “powers that be” accepted the ‘situation which made those responsible for the crime “disturbingly unharried”. The same “power that be” dismissed the Resident, who, as a result of the shock of his sudden dismissal, threw himself under a bus in the Channel Islands in Jersey, an action which was unlikely to have caused the men who drove him to his death any uneasinessln their sleep.
Stopping at the end of the second paragraph for the time being, I think the natural and ordinary meaning of the words contained in them convey a defamatory imputation that the murder weapon was not only found in the house of the Plaintiff but that he was charged with complicity in the murder charge and was acquitted in circumstances in which a mystery still sur-rounded the murder and the Resident of Ijebu-Ode felt dissatisfied. It is defamatory, I think, to say of a man that he has been charged with the offence of murder, which in Nigeria is a capital offence. A statement that a man has been acquitted of the offence of murder with which he was never charged is to my mind also defamatory. In Lewis v. Daily Telegraph (1964) A.C. 234 Devlin, L.J. said at page 285:
One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man what is said is simply that the Plaintiff’s affairs are being inquired into. That is defamatory, as is admitted, because a man’s reputation may in fact be injured by such a statement even though it is quite consistent with innocence. I dare say that it would not be injured if everybody bore in mind, as they ought to, that no man is guilty until he is proved so, but unfortunately they do not. It can be defamatory without it being necessary to suggest that the words contained a hidden allegation that there were good grounds for inquiry. A statement that a woman has been raped can affect her reputation, although logically it means that she is innocent of any impurity: Yousopovf v. Metro-Goldwyn Pictures Limited. So also a statement that a man has been acquitted of a crime with which in fact he was never charged night lower his reputation
The Plaintiff, in paragraph 22 of the statement of claim averred that the words complained of mean that he, being the Prime Minister of the Western Region and amongst the powers that be caused the Resident Ijebu-Ode to commit suicide and was so callous that he could sleep easily afterwards. This meaning the learned Queen’s Counsel for the Defence thought was an extreme meaning. He submitted that the words in the 1 st and 2nd paragraphs must be read along with those in the third paragraph. In a careful and painstaking argument he analysed the words contained in.all three para-graphs and contended:
(i) That the criticism in the passage is directed at those responsible for British policy;
(ii) That what is being criticised is that which has done a disservice to the Plaintiff and he (the Plaintiff) could not be included in the parties being criticised; and
(iii) The third paragraph has completely removed any suggestion of complicity in the earlier paragraphs by the use of the words “complete innocence” and “arrest of those responsible”.
Looking again at the passage complained of, together with the third para-graph, I think the words complained of would convey the defamatory mean-ing ascribed to them by the Plaintiff. I do not consider that the words appearing in the third paragraph have, in any way, taken away the sting in the first two paragraphs. On the contrary the paragraph seems to have made the position of the Plaintiff even worse. The passage makes out that Justice had discarded the Resident blindfold and that the Rule of Law, which had become selective on the African scene, had been “shuffled” off the “African Stage” and that British policy had had to recognise a need to “trim” the “sails of Justice”. I do not consider that the words “It also did a disservice to Awolowo who, undoubtedly, would have preferred his complete innocence of any complicity in the murder to have been established not only by the ver-dict of the court which tried him but by the arrest of those responsible for the murder” have in any way taken away the imputation in the earlier para-graphs. The Plaintiff is made out in the passage as the Prime Minister of the Western Region. He, must of necessity come under the umbrella of the “powers that be” who left those responsible for the crime of murder “dis-turbingly unharried”. The third paragraph also makes out that “Awolowo” who have preferred his complete innocence to have been established” which in other words means that his complete innocence had not been established. After a careful consideration of the three paragraphs here I have reached the conclusion that the words complained of bear the defamatory meaning attributed to them by the Plaintiff in paragraph 22 of the statement of claim.
I ask myself the question: What meaning would the reasonable reader give to the words complained of when the book was set in circulation in Nigeria? In considering whether in fact the words conveyed a defamatory meaning I keep in mind the need to consider how reasonable men to whom the publi-cation was made would be likely to understand it. I therefore approach the words in a spirit neither unusually suspicious nor unusually naive, but between the two extremes, and consider the whole context of the words. (See Gatley, Libel and Salnder, 6th edition paragraph 131). How would a reasonable person (who is neither suspicious nor naive) receive these words? What impression do these words convey to such a reasonable person? Could they be understood by their recipient in the meaning ascribed to them by the Plaintiff? What are the natural and ordinary meanings of the words used here? What implication would a reasonable reader, not a lawyer, possessed of a general knowledge and normal intelligence draw from these words? It seems to me that a reasonable reader, the kind discussed above, would at once see in the passage (i) that the murder weapon in the Apalara murder case was found in the house of the Prime Minister of the Western Region, Obafemi Awolowo; (ii) that investigations in the case were not easy because Apalara was a Yoruba cult and the investigators were Ibos; (iii) that Awolowo was charged with the offence of murder and acquitted; (iv) that the murder remained unsolved; (v) that the Resident Ijebu-Ode, where the mur-der had taken place pressed for more investigations but the powers that be (i.e. those in authority) were complaisant in accepting the situation that left those responsible for the crime disturbingly unharried; (vi) that the Resident was retired with lightning suddenness; (vii) that the shock of this drove him to commit suicide; (viii) that those responsible for his death were not trou-bled by their conscience; (ix) that the Rule of Law had become selective and was being shuffled off the African Stage where British policy now recog-nised the need to trim even the sails of justice; and (x) that the rule of law did a disservice to Awolowo who would have preferred his complete innocence to be established. The defendants admitted that the Plaintiff was never charged with murder in the Apalara murder case or in any other murder which is the imputation in the passage. The passage also states that the mur-der weapon was found in the Plaintiff’s house which statement is admitted by the defence to be false. Learned Counsel for the defence contended that the mere fact that the murder weapon was found in a person’s house does not indicate the person’s guilt. That may be so when looked at by a lawyer. The layman, however, reads in an implication much more freely and is more prone to do so when it is derogatory. (See Gatley, 6th edition paragraph 98). Conscious as I am of the difficulties involved I think a reasonable reader who is not unusually naive and who is not unusually suspicious would draw the inferences that the Plaintiff was implicated in the Apalara murder espe-cially when he takes together everything that is said in the entire passage-the murder charge, the murder weapon, the acquittal, the unsolved murder, the dissatisfied Resident and his pressing for further investigations, the instant dismissal of the Resident which led him to commit suicide, the abuse of the Rule of Law (which had now become selective) and the failure to establish the Plaintiff’s complete innocence.
I think a reasonable reader would draw the inference from all the three paragraphs that the Plaintiff was charged with complicity in the Apalara murder case and also the other inferences attributed to them in paragraph 22 of the statement of claim. I am not mindful of the submission that the third paragraph has taken away the sting in the earlier paragraphs. This reasoning, however, with great respect, does not bear analysis. Even though the para-graph ended with the statement that Awolowo would have preferred his com-plete innocence established it has also left with the reader the firm impression that Awolowo’s complete innocence had not been established. In Daily Telegraph v. Associated Newspapers 1964 A.C. 234 Devlin, L.J. said:
…… It is wrong to say that, if in truth the person spoken of never gave any cause for suspicion at all, he has no remedy because he was expressly exonerated of fraud. A man’s reputation can suffer if it can truly be said of him that although innocent he behaved in a suspicious way; but it will suffer much more if it said that he is not innocent….. Although suspicion of guilt is something different from proof of guilt, it is the broad impres-sion created by the libel that has to be considered and not the meaning of each word under analysis……
After a careful consideration of the passage I have come to the conclusion that the words complained of did in fact convey the defamatory meaning attributed to them by the Plaintiff. I ask myself the question: “What is the natural and ordinary meaning in which these words would be understood by reasonable men to whom they were published?” In answer to this question I give the same answers I have given above which coincide more or less with the meaning ascribed to them by the Plaintiff. I have formed the clear view that the words complained of are defamatory. This decisiomI have reached by a full consideration of the sense in which the words would reasonably have been understood by an ordinary man. I have given no consideration at all to the way in which any of the witnesses had received the words. That conclusion makes it necessary for me to consider whether the defendants (or any of them) are liable to the Plaintiff in the circumstances of this case.
In paragraph 6 of the statement of defence of the 1 st Defendants (the same paragraph and similar words as 2nd Defendants’ statement of defence) it is pleaded:
“The First Defendants carry on business as booksellers and they sold the said 106 copies of the said book in the course of their said business and without knowing that the said book contained any words defamatory of the Plaintiff and without negligence. Further, the First defendants had no ground for supposing that the said book contained any words defamatory of the Plaintiff. Immediately on receiving notice from the Plaintiff’s solicitors that the Plaintiff considered that the said book contained words which were defamatory of him the First Defendants withdrew from sale the remaining 13 copies in their possession. In the premises the First Defendants deny that they published any libel of the Plaintiff”.
The Learned Queen’s Counsel for the defence contended that the defence of innocent dissemination is available to the defendants-in other words that the defence is open to the defendants:
(a) That they did not know that the book contained the libel complained of, and
(b) That they did not know that the book was of a character likely to con-tain a libel; and
(c) That such want of knowledge was not due to any negligence on their part.
In the course of the trial a lot had been said about the Defamation Act 1961 and what is described in s.6 of that Act as “Unintentional’ Defamation”. Learned Counsel for the Defence submitted that “Unintentional Defamation” is something quite different from “innocent dissemination”.
Learned Counsel for the Plaintiff, if I understand his argument correctly, seem to be saying that “unintentional defamation” is synonymous with “innocent dissemination” and that it did not matter whether the publication was “innocent” or “unintentional” but that the “end result”, which in this case was the publication, was what mattered! He argued further that the defence of “innocent dissemination” is not open to the Defendants.
These arguments quite obviously raise a question of some difficult which falls to be decided, namely:-
In what circumstances, if any, are the defences of “Unintentional publication” and “Innocent dissemination” available to a defendant? In this regard the provisions of S.6 of the Defamation Act of 1961 are relevant. These pro-visions are exactly the same as s.4 of the English Defamation Act of 1952. (See Gatley, Libel and Slander, 6h edition page 708). S.6 of the Defamation Act 1961 provides:
“(1) A person who has published words alleged to be defamatory of another person may, if he claims that the words were published by him innocently in relation to that other person, make offer of amends under this section: and in any such case-
(a) if the offer by the party aggrieved and is duly performed, no pro-ceedings for libel or slander shall be taken or continued by that party against the person making the offer in respect of the publication in question (but without prejudice to any cause of action against any other person jointly responsible for that publication);
(b) if the offer is not accepted by the party aggrieved, then, except as otherwise provided by this section, it shall be a defence, in any pro-ceedings by him for libel or slander against the person making the offer in respect of the publication in question, to prove that the words com-plained of were published by the defendant innocently in relation to the plaintiff and that the offer was made as soon as practicable after the defendant received notice that they were or might be defamatory of the plaintiff, and has not been withdrawn.
(2) An offer of amends under this section must be expressed to be made for the purposes of this section, and must be accompanied by an affidavit specifying the facts relied upon by the person making it to show that the words in question were published by him innocently in relation to the party aggrieved; and for the purposes of a defence under paragraph (b) of subsection (1) of this section no evidence, other than evidence of facts specified in the affidavit, shall be admissible on behalf of that person to prove that the words were so published.
(3) An offer of amends under this section shall be understood to mean an offer:-
(a) In any case, to publish or join in the publication of a suitable cor-rection of the words complained of, and a sufficient apology to the party aggrieved in respect of those words;
(b) Where copies of a document or record containing the said words have been distributed by or with the knowledge of the person making the offer, to take such steps as are reasonably practicable on his part for notifying persons to whom copies have been so distributed that the words are alleged to be defamatory of the party aggrieved.
(4) Where an offer of amends under this section is accepted by the party aggrieved:-
(a) any question as to the step to be taken in fulfilment of the offer as so accepted shall in default of agreement between the parties be referred to and determined by the court whose decision thereon shall be final;
(b) the power of the court to make orders as to costs in proceedings by the party aggrieved against the person making the offer in respect of the publication in question, or in proceedings in respect of the offer under paragraph (a) of this subsection, shall include power to order the payment by the person making the offer to the party aggrieved of costs on an indemnity basis and any expenses reasonably incurred or to be incurred by that party in consequence of the publication in question;
and if no such proceedings as aforesaid are taken, the court may, upon application made by the party aggrieved, make any such order for the payment of such costs and expenses as aforesaid as could be made in such proceedings.
(5) For the purposes of this section words shall be treated as published by one person (in this subsection referred to as the publisher) innocently in relation to another person if and only if the following conditions are sat-isfied, that is to say:-
(a) that of the publisher did not intend to publish them of and con-cerning that other person, and did not know of circumstances by virtue of which they might be understood to refer to him; or
(b) that the words were not defamatory on the face of them and the publisher did not know of circumstances by virtue of which they might be understood to be defamatory of that other person, and in either case that the publisher exercised all reasonable care in relation to the publi-cation; and any reference in this subsection to the publisher shall be construed as including a reference to any servant or agent of his who was concerned with the contents of the publication.
(6) Paragraph (b) of subsection (1) of this section shall not apply in rela-tion to the publication by any person of words of which he is not the author unless he proves that the words were written by the author without malice.”
In his letter, Exhibit 5, the solicitor of the Plaintiff wrote to the Defendants complaining of the defamation with which we are here concerned and demanding:-
(i) That a stop is put to the circulation of the book; (ii) that all the books already sold are withdrawn;
(iii) The publication of an offer of amends by way of apology; and (iv) payment of £100,000 damages for their involvement in the cir-culation of the libel.
In their reply, Exhibit 7, the defendants, Kingsway Stores Nigeria Limited
Said, inter alia:
“We must however, emphasize that Kingsway Stores of Nigeria Limited does not admit any liability whatsoever in respect of the publica-tion in question. Entirely without prejudice to any other defence which might be available to Kingsway Stores of Nigeria Limited, it would appear that they are free from liability in respect of this publication by rea-son of the defence generally known as “innocent dissemination”, since:
(a) Kingsway Stores did not know that the book contained the matter complained of, and
(b) Kingsway Stores of Nigeria Limited did not know that the book was of a character likely to contain any such matter, and
(c) Kingsway Stores of Nigeria were not in any way negligent in not knowing of the matters mentioned in (a) and (b) above….
As to item 3, Kingsway Stores of Nigeria Limited are considering, as a matter of urgency, the question of making an offer of amends under the Defamation Act, 1961. This cannot be dealt with as expeditiously as we and our clients would like since the combined provisions of sub-sections (2) and (6) of that Act make it necessary to obtain an Affidavit from the Author ……
Later by their letter, Exhibit 8, dated 5th February, 1968, to which were attached the affidavits of the Author and of one Robert Walter Hulland, they stated that the offer of amends they were prepared to offer was:
(a) To join in the publication of an expression of regret that any distress should have been caused to the Plaintiff by the words complained of in the book;
(b) to take such steps as are reasonably practicable to notify persons to whom copies of the book have been sold that the words complained of are alleged to be defamatory of Chief Awolowo.
The Plaintiff by his solicitor’s letter, Exhibit 9, dated 24th February 1968, declined to accept the proposed offer of amends for the purposes of s.6 of the Defamation Act, 1961 on the ground that it was inadequate and insufficient. The matter, so far as the Defamation Act 1961 was concerned, rested there. The Defendants did not raise the defence which is available, under s.6 (1)(b) of the Act, to a defendant after his offer of amends has not been accepted by the person aggrieved, except that in the former paragraph 11 of the statement of defence of the 1st Defendants they had pleaded:
“Further or in the alternative the words set out in paragraph 10 of the statement of claim were published by the First Defendants innocently in relation to the Plaintiff and an offer of amends under and for the purposes of s.6 of the Defamation Act 1961 was made by the First Defendants by letter dated 5th February, 1968 as soon as practicable after the First Defendants received notice that the said words might be defamatory of the Plaintiff. The said offer of amends has not been withdrawn and the First Defendants remain ready and willing to publish or join in the publication of a suitable correction and apology”.
The pleading has been struck out and there is therefore no defence of “unintentional publication” under s.6 of the Defamation Act 1961 in the instant case.
To return now to the argument that arose about the defence of “uninten-tional publication” and that of “innocent dissemination” I must express my complete agreement with the submission of learned Counsel for the defence that “innocent dissemination” is an entirely difference defence to that of “unintentional publication” under s.6 of the Defamation Act of 1961. The two seem to me to be entirely different and distinct defences. In order to raise the defence of “unintentional publication” the person who had made an innocent publication alleged to be defamatory of another should have:
(a) Made in offer of amends which shall be stated to be made under s.6 of the Defamation Act 1961; and
(b) If the offer is accepted by the party aggrieved he should have per-formed the terms of the offer of amends (and in that case this will be a defence to the action brought against him as no proceedings shall be against the party who has made and performed the offer of amends);
(c) Shown that he did not intend to publish the words complained of, concerning that other person, and did not know of circumstances by virtue of which they might have been understood to refer to him (See s.6(5)(a) of the Defamation Act, 1961);
(d) Shown that the words were not defamatory on the face of them and that he did not know of the circumstances by virtue of which they might be understood to be defamatory of that person (See Defamation Act 1961, s.6(5)(b); and
(e) Proved, in the case in which he is not the author of the words com-plained of, that the words were written by the author without malice.
If the offer of amends is not accepted by the person aggrieved then the defendant can raise the defence.
As I stated earlier the defence of “unintentional publication” is no longer raised in this case and I do not consider that the fact that the’ 1st defendants have abandoned this defence should preclude me from considering the defence of “innocent dissemination” which they have raised in paragraph 6 of their respective statements of defence. This defence of “innocent dissem-ination” is open to a person who is not the author, printer or the fast or main publisher of a work which contains a libel but has only taken a subordinate part in disseminating it by selling, distributing or handing it over. (See Gatley 6th Edition paragraph 242). I have already discussed the conditions for establishing the defence of “innocent dissemination”.
It would be seen that these conditions are entirely different from those relating to the defence of “unintentional publication” under S.6 of the Defamation Act, 1961.
It is useful here to examine a few of the available authorities on the defence of “Innocent dissemination”. In Emmens v,. Pottle and others (1885) 16 Q.B.D. p. 354, the defendants, who were news vendors, sold several copies of a, newspaper which contained a libel on the Plaintiff. The jury found that the defendants did not know that the newspapers at the time they sold them contained a libel on the Plaintiff; that it was not by negligence on the defendants’ part that there was any libel in the newspapers; and that the defendants did not know that the newspapers was of such a character that it was likely to contain libellous matter, nor ought they to have known. The Court of Appeal affirmed the decision of the High Court in which Wills, J. decided in favour of the defendants Lord Esher, M.R. at pp. 356 and 357 said:
‘ . . I do not intend to lay down any general rule as to what will absolve from liability for a libel persons who stand in the position of these defendants. I agree that the defendants are prima facie liable. They have handed to other people a newspaper in which there is libel on the Plaintiff….. But the defendants did not compose the libel on the Plaintiff, they did not write it or print it; they only disseminated that which contained the libel….. But here upon the findings of the jury, we must take it that the defendants did not know that the paper contained a libel. I am not pre-pared to say that it would be sufficient for them to show that they did not know of the particular libel … the defendants did not know that the paper was likely to contain a libel, and, still more, that they ought not to have known it, having used reasonable care-the case is reduced to this, that the defendants were innocent disseminators of a thing which they were not bound to know was likely to contain a libel. That being so, I think the defendants are not liable……
The decision in Emmens v. Pottles was followed in the subsequent case of Mallon v. W. H. Smith and Son (1893) 9 T.L.R. p. 621-the summing up of Cave, J. at p. 622. The two cases discussed above concerned the dissemina-tion of newspapers but the next one of Vizetelly v. Mudies Library (1900) 2 Q.B. 170 concerned the circulation of copies of a book, which unknown to the defendants, the proprietors of a circulating library, contained a libel on the Plaintiff. The defendants failed to show that it was not through negli-gence on their part that they did not know that it contained a libel before they circulated it. The Court of Appeal held that they were liable as publishers of the libel. Smith L.J. at p. 176 said:
“What are the special circumstances of this case with regard to the question whether the defendants took due and reasonable care in the con-duct of their business in this respect? It appears from the evidence of Mr. Mudie, one of the defendants’ directors, that there was no one in the estab-lishment to exercise any supervision over the books beside himself and his co-director, and the books were too numerous for them to examine to see if they contained libels ….. It seems to me that out of the mouth of Mr. Mudie there was sufficient evidence to justify the Jury in coming to the conclusion that the defendants had failed to prove their defence, and that it was through negligence on their part that they did not find out that the book contained the libel on Plaintiff ……
In Weldon v. Times Book Co. (1911) 28 T.L.R. 143 the principles laid in Emmens v. Pottle were again followed and it was held that the mere fact that the defendant did not have the book read through before he offered it for sale or otherwise distributed it is not in itself evidence of such negli-gence; it was also thought that in the case of a book the jury may rightly infer negligence from the title or general nature of the book itself, or from the recognised propensity of the author or publishers to publish libellous matter.
Emmens v. Pottle was again followed in Bottomley v. F. W. Woolworth & Co. Ltd. (1932) 48 T.L.R. 521. It must be said however that in Emmens v. Pottle the finding was that the defendants “never published” the libel in question but the findings of the Jury in that case had been followed in more modern decisions as to the requirements to show-that the defendant did not know that the book or paper contained the libel; that he did not know that the book or paper was of a character likely to contain a libel; and that such want of knowledge was not due to any negligence on his part. In the Bottomley case Scrutton; L.J. restated the three things which a defendant in such a case must show namely-
(i) That the was innocent of any knowledge of the libel (In the Bottomley case the jury found that the defendants were innocent);
(ii) he must show that there was nothing in the book or the circum-stances in which it came to him or was disseminated by him which ought to have led him to suppose that it contained a libel (in the Bottomly case there was no evidence to justify a finding that there was anything in the magazine which ought to have led them to suppose that it contained a libel); and
(iii) he must show that when the book was disseminated by him it was not by any negligence on his part that he did not know that it contained a libel (In the Bottomley case the jury found that there was negligence owing to the absence of periodical examination of specimen magazines, a finding which had no possible connection with the knowledge of the defendants for which reason the judgement entered in favour of the defendants was upheld on appeal).
Emmens v. Pottle was also followed in the earlier case of Martin Et Uxor
“I think it would probably be better if the questions for the jury in cases like Emmens v. Pottle once the libel as been established were restricted to (1) a question of whether the defendant knew, and (2) a question whether the defendant ought to have known, that is to say, whether there was any negligence on the part of the defendant in carrying on his business in respect the publication of the libel….”
Emmens v. Pottle was followed in the United States of America in the case of Onalee Bowerman v. Detroit Free Press 120 American Law Report page 1230. The following extracts from the “opinion” of the Court, delivered by Bushnell, J. fairly summarises the views held in that case. Bushnell, J. said:
This court on its own motion requested Counsel to brief the following question: Can defendant Stiles, a local distributor in Lapeer of defendant Detroit Free Press, be required to respond as a joint tort-feasor for the cir-culation of an alleged libel in the absence of proof of his knowledge of the libel? …. In Street v. Johnson 80 Wis p. 455 it is said: “The authorities are to the effect that the mere seller of newspapers is not liable for selling and delivering a newspaper containing a libel upon the Plaintiff if he can prove upon the trial to the satisfaction of the jury that he did not know that the paper contained a libel; that his ignorance was not due to any negligence on his part; and that he did not know and had no ground’ for supposing, that the paper was likely to contain libellous matter …. We therefore stat-ed the general rule that all persons who cause or participate in the publi-cation of libellous or slanderous matter are responsible for such publication…. We also said all actively connected with and engaged in the publication of a libel are responsible for the results. Stile’s sole con-nection with the affair was to see that the newspapers were distributed in Lapeer after their arrival from Detroit. The rule applying to such a situa-tion is found in 37 C.J. 15, where it is said: `It is a good defence for a ven-dor or distributor of a newspaper or periodical to show that he had no knowledge of the libellous matter and that there were no extraneous facts which should have put him on his guard. But such vendor or distributor is liable if he had knowledge that the newspaper contained libellous mat-ters’.
“If the defendant Stiles had an active part in the publication of a libel with knowledge of its nature he should respond in damages. In these days of speedy dissemination of news it seems unreasonable to hold that a local distributor of newspapers be required to check the contents of each issue for libellous matter in order to protect him for liability for damages. Under the circumstances in this case, the judgement against defendant Stiles cannot be sustained.”
The matter of the liability of distributors was also discussed in an article in 37 Michigan Law Review at page 1335. Emmens v. Pottle was there dis-cussed and explained. In the review at page 337 it is said:
…… The result reached is clearly justifiable but it is hardly logical to say that want of knowledge rebuts the presumption of publication. The Court really meant that as to this class of persons, knowledge is a legal element of publication, and that it is presumed from the fact of dissemina-tion, but want of knowledge may be shown to rebut this presumption. Some Courts say that ‘Whenever a man publishes he publishes to his peril’, while others take the view that there might be a deliberate intent to defame the Plaintiff, or at least negligence in doing so. Even in a juris-diction holding that ordinarily the author acts at his peril, the disseminator of books and periodicals should be held to a less strict standard by requir-ing that the defamation be intentional or negligent….
In the Restatement of the Law of Torts (American Law Institute) the same principle is stated, namely, that one who disseminates matter defamatory of another which was originally published by a third person is liable as though the dissemination were an original publication by him, unless he has no rea-son to know of its defamatory character. (See Restatement of the Law of Torts Volume III paragraph 581 at p. 208). The book at page 211 discussed the position of Bookstores and libraries. It says:
“Such a vendor or lender is not liable, if there are no facts or circum-stances known to him which would suggest to him, as a reasonable man, that a particular book contains matter which upon inspection, he would recognise as defamatory…”
These views, I am bound to say, appear to me to show good sense and good law.
Having considered the judgements and opinion bearing on this subject carefully it seems to me that there is no apparent difference of Judicial views on the subject of the distribution of books or periodicals by persons other than the author, publisher or printer. One or two other cases were referred to, but they do not appear to me to take the matter further than the principles laid and followed in Emmens v. Pottle. Accordingly, I incline to the view that a person who is not the author, printer or publisher of a book containing a libel who has taken a subordinate part in disseminating it is liable unless he shows (i) that he did not know that the book contained the libel or (ii) that he did not know that the book was of a character likely to contain a libel and (iii) that such want of knowledge was not due to negligence on his part. I also incline to the view that such a seller or vendor is not liable, if there are no facts or circumstances known to him which would suggest to a reasonable man that the book contains matter which upon inspection, he would recognise as defamatory.
With this in mind I now turn to examine the position of the two defendants here. In paragraph 6 of the statement of defence of each of them the defen-dants pleaded that they did not know that the book in question contained words defamatory of the Plaintiff and they had acted without negligence. The defendants called Arthur Reid Lawrence, the General Manager of the 1 st Defendants, the Kingsway Stores of Nigeria Limited, who stated that any one time the number of different titles of books which the 1st defendants kept in their Store would be in the order of between 7,000 and 10,000. He stated also that the aim of 1st defendants is to have books of broad interests to people of different interests on subjects like history, biography, travel, cookery, and in particular, books of special interest in West Africa which deal with the local scene and travel.
As to who had the responsibility for the selection and purchase of books he said that function is delegated to the Hardware and Merchandise Manager who may, in turn, delegate it to his assistant. He stated that at the time the book in question was dealt with the Assistant Merchandiser, Mr. Holland, was the officer responsible for book buying. Godfrey Robert Holland next gave evidence for the defendants. He was the Assistant Merchandiser for the 1st defendants which position he held for about 17 months. In this position of Assistant Merchandiser he was responsible for books. On being ques-tioned as to the book subject matter of these proceedings he said he first saw the proof copy of the book when it was handed over to him about autumn of 1966 by the overseas representative to Thomas, Nelson and Sons Limited. He explained that the proof-copy was the text of the first unedited copy of the author’s work before any corrections were made in the paper cover. The witness Holland said he “glanced through the book” and that he “looked through the book” and that the passages in it which he saw confirmed the opinion of the 2nd defendants’ representative that it was an interesting book.
The last witness for the defence was the witness James Foster Horfburgh, the Export Sales Manager of the defendants, Thomas, Nelson and Sons who gave evidence to the effect that the 2nd defendants are distributors in Nigeria for Cassell and Company and for other firms of publishers. He said also that he had seen the proof copy of the book about October, 1966 and in its pre-sent form in January, 1967. He had given the proof-copy of the book to the defence witness Holland after he himself had “looked through the book” and formed the view that it would be of interest in Nigeria. The evidence of the witness Horfburg will be reviewed in greater detail when I come to discuss the impression which the evidence of these witnesses has made on me.
In a case of this kind in which the defendant is relying on the defence of “innocent dissemination”, the onus of proving a lack of knowledge that the book contains defamatory matter or that it was not by negligence on his part that he did not know that it contained such libel or that he did not know that the book was of such character that it was likely to contain libellous matter (nor ought he to have known so) lies on the defendant. This principle was settled in Emmens v. Pottle. Lord Esher, M.R., giving the judgement of the Court of Appeal in that case, said:
“I agree that the defendants are prima facie liable. They have handed to other people a newspaper in which there is a libel on the Plaintiff. I am inclined to think that this called upon the defendants to show some cir-cumstances which absolve them from liability, not by way of privilege, but facts which show that they did not publish the libel……
In Vitzetelly v. Mudie 1900 2 Q.B.D. 170 at p. 1976, Smith, L.J. said:
“Applying the law so laid down to the present case where is there any such finding here, as there was in Emmens v. Pottle, to the effect that it was not by negligence on the defendants’ part that they did not know that there was a libel in the book which they disseminated? What are the spe-cial circumstances of this case with regard to the question whether the defendants took due and reasonable care in the conduct of their business in this respect? ….. It seems to me that out of the mouth of Mr. Mudie there was sufficient evidence to justify the jury in coming to the conclu-sion that the defendants have failed to prove their defence, and that it was through negligence on their part that they did not find out that the book contained a libel on the Plaintiff . . . .”
As I have said it is for the defendants to prove that which they pleaded in paragraph 6 of their respective statements of defence-that they did not know that the book, “The one-eyed main is King” contained any words defamatory of the Plaintiff and that this want of knowledge was not due to any negligence on their part. I say at once, on a careful consideration of the evidence, that none of the defendants here has discharged the burden cast upon them of showing that they did not know of the libel or that it was not by negligence on their part that they did not know that this book contained a libel on the Plaintiff before they began to distribute copies of it. The evi-dence as to the conduct of both defendants with regard to this book hangs mainly on that of the 1st Defendants’ Mr. Hulland and 2nd Defendants’ Mr. Horfburgh. The witness Horfburgh, about October, 1966 got a proof copy of the book, and, according to him “looked through it”, (“but did not read through the entire book”) saw references made in it throughout Nigeria, con-vinced himself the book would sell in Nigeria and he took it to Kingsways Stores Nigeria Limited where he was the witness Hulland with whom he left it. The witness Hulland in his evidence-in-chief, said that the book was given to him about October, 1966 by Mr. Horfburgh after a conversation about the book and “he took it home”, “put it on the shelf” and “did nothing more with it”. The dialogue, when Mr. Neill was leading him through his evidence-in-chief, went like this:
Perhaps I ought to say at this juncture that this witness had in the affidavit attached to the offer of amends, Exhibit 8, stated that the Overseas Representative of Thomas, Nelson & Co. (undoubtedly Mr. Horfburg) enthusiastically introduced to him for purchase the book in question and that he “had a glance through the proof of the book” and he was, convinced that the book was “well-written, topical and likely to be popular on the Nigeria market”.
The questions and answers in chief continued:
Did looking through the book and what view you held about the book.
He went on to say that, later, he heard that the Plaintiff was complaining about some passages in the book but until that time he did not know that there was anything libellous in the book. He did not read the review of the book, Exhibit 2, until after the middle of December, 1967. It was, in his opinion, impossible for Kingsway Stores to read every book they were putting out for sale beforehand. He could not recall having come across the name of the Plaintiff while “glancing” through the book. He said it was to give him an opportunity to confirm or otherwise the view of Mr. Horfburg that the proof of the book was given to him. He did not think that in order to confirm Mr. Horfburg’s representations about the book it was necessary for him to read through the book. He agreed however that, in the final analysis, it was to enable him to make up his mind as to whether the book would be accepted into his Store for sale that it was given to him. He had in January 1968 read the book before he swore to the affidavit in which he had stated:
“The extract of the book complained of was not noticed by me while going through the book and even since the matter published came to my knowledge I am not aware of any circumstances by virtue of which such matter might be understood to be defamatory to the complaint, Chief Obafemi Awolowo”.
He also admitted that it was an error of judgement on his part to have put the book in his Store for sale.
If is from the evidence of a witness like this that I am asked to consider whether the 1st Defendants, Kingsway Stores Nigeria Limited, have shown satisfactorily that they did not know that the book “The one-eyed man is King” contained a libel, that their ignorance was not due to any negligence on their part and that they did not know and had no ground for supposing that the book was likely to contain libellous matter. Let me say at once that the evidence of the witness Hulland was entirely satisfactory. He has failed to satisfy me that he did not read the passage concerned before he gave an order for the books to be sold by his Company. Even after he had read the passage complained about he still said that he saw nothing in it that might be under-stood to be defamatory of the Plaintiff.
In his evidence he had great difficulty in even admitting that he had glanced through the book. He had said he did nothing more with the book notwithstanding that in February this year he had in his affidavit sworn to the fact that he had glanced through it. It was not until he was pressed further on the point that he admitted having glanced through it. Even if it were true that he did not read the passage concerned before putting it on sale it was clearly negligent on his part not to have read the book in all the circumstances of this case. The book had been given to him in order to satisfy himself that it was suitable for the 1 st Defendants to put on sale in the Nigerian market. He was aware that the book was mainly on Nigeria. A representation had been made to him that the book was interesting. He “glanced through the book” to dis-cover for himself whether that representation was true. The title of the book is an intriguing one-”The one-eyed man is King”. One would have thought that any person who is familiar with the English language (and he is an English man) would have at once recognised that the title the “The one-eyed man is King” comes from the English saying “In the country of the blind the one eyed man is King”. Even the title of the book should have kept him on his guard especially when he knew that the theme of the book is essentially on Nigeria. One would think that a reasonable reader glancing through the book would read at least the beginning and the end of it. The end of the book in question was with words that really serve as a pointer:
“In the country of the blind the one-eyed man is King. But who now will watch over the country of the blind extends its dominion over places where, once, men could hope? Where, today, is the country of the blind? And who are the one eyed men?”
I have had the opportunity of reading through this book and I fail to see how anyone, who is not unusually naive, can describe it as being interesting. I fail to see how anyone, after reading a few passages in it can fail to see the need to make sure that it does not defame anyone in Nigeria about which the author is writing-the need to take due and reasonable care to ensure that a book is not set in circulation which is likely to injure anyone in his reputa-tion. In Weldon v. Times Book Co. (1911) 28 T.L.R. 143 it was said that a jury can rightly infer negligence from the title of the book or general nature of the book itself. That opinion properly applies here. The circumstances in which the 1 st Defendants Mr. Hulland got the book, the title of the book and its general character ought to have put him on an inquiry. The 1st Defendants ought really to have known that the book was of a character like-ly to defame. I can point out a few examples. At page 106 of the book one
“Jekri women today are found all over Nigeria as prostitutes and European mistresses, a position which gave them great influences in the days when white women were almost unknown on the coast”.
At page 105 is a description of the sexual act by some tribe in Nigeria, a thing the witness Hulland described as the view of an anthropologist.
There are several pages in the book which contain the names of living per-sonalities on the Nigerian scene and which attributed some actions to them (see pages, 213, 229, 231, 233, 237, 254 etc.). As I said, no one can read the book without at once realising that it is about Nigeria and with that realisa-tion, and with the title of the book in mind, one ought to have made sure that it was not likely to be defamatory before putting it on the Nigerian market. As it turned out the book is not only defamatory of the Plaintiff at pages 234 and 235, it puts the administration of Justice into ridicule. In my judgement the witness Hulland has failed to establish that he ought not to have known that the book contained a libel. If he had carried out his duties carefully he should have known. The book was given to him for the precise purpose of making up his mind whether it was suitable. Whoever heard of a person making up his mind as to the suitability of a book without reading a consid-erable part of it? It is the duty of the 1 st defendants to prove a lack of knowl-edge on the part that the book contains defamatory matter or that it was not by negligence on their part that they did not know that it contained libel. The 1st defendants have failed to establish any of this. The evidence of the wit-ness Hulland on which they rely is unsatisfactory. I form the clear view that he had been negligent in this matter.
I hope I shall not be misunderstood about my decision in this case. I will not go as far as to say that a bookseller has a duty to read every book which he puts out for sale. I can see the difficulty in the way of booksellers in the position of the 1st defendants who sell books in the order of between 7,000 and 10,000 copies if he were asked to do that. What I am saying is that if cir-cumstances exist about any book, which such booksellers are putting out on sale, which ought to put them on their guard or which ought to have led them to suppose that such a book contains a libel they would be liable if they acted negligently and put such a book out for sale. I would adopt the statement of the principle in the American restatement of the law of Torts that a vendor or lender of a book is not liable if there are no facts or circumstances known to him, as a reasonable man, that a particular book contains matter which upon inspection, he would recognise as defamatory. In the instant case the book is about Nigeria and Nigerians. In such a case I think a reasonable bookseller ought to satisfy himself that the book does not contain any defamatory matter particularly when one is dealing with a book with the title “The one-eyed man is King”. The same duty may not be required in respect of books of an entirely different character such as fiction, poetry, literature, art, etc. I also think that a bookseller, who undertakes the sale of a book, which, known to him is written about a particular locality or geographical area and contains the names of the people of that place and their activities ought to read through such book to satisfy himself that it does not contain a libel on the people of whom it is written; the more so if the book is meant for distribu-tion in this area and its title is such as to put him on his guard. I think Mr. Hulland has failed in his duty to prove that it was not by any negligence on his part that he did not know that the book in question contained a libel on the Plaintiff. That being so, the 1st defendants for whom he worked are liable to the Plaintiff.
I now turn to the position of the 2nd defendants. This at once brings up for consideration the evidence of the witness James Horfburgh. Let me say at once that the evidence of this witness is far from being satisfactory. He is the overseas representative of the 2nd defendants, Thomas, Nelson and Sons Limited, and also that Company’s Export Sales Manager. He had worked in Nigeria since 1952 working first for C.M.S. (Nigeria) Bookshop as Assistant Manager. In January 1961 he went into the employment of the 2nd defen-dants. The 2nd defendants act as distributors for the firm of publishers, Cassell and Company Limited but they also distribute for other firms. In addition they publish Nelson books. It is not disputed that Cassell and Company Limited are a reputable firm of publishers. According to Mr. Horfburgh he got the proof-form of the book in question about October 1966 and formed the view, on “looking through the book and seeing references in it to various parts of Nigeria”, that it would be a book “that would sell on its basis”. The then took it to the witness Hulland and suggested to him that it would sell in Nigeria. In the course of his evidence the question turned on whether he read through the book and whether he had a duty to read through it in order to ascertain its suitability for the Nigerian market. To questions on this topic he gave the following answers:-
“ . . . . I would look through the book depending on whether I would read it in detail or not. But my job does not require me to do this nor indeed read the book at all…….
“There are several ways (to judge the suitability of books): one is influ-enced by the bookseller which carries advertisements; the publishers issue advance information and there is a block on the inside of the cover. These are probably the principal methods”.
(To the question what would you look for in the proof of the book?).
“I would look for the suitability of any particular market”.
Again, the question turned on whether, the witness on reading through the book, read the offending passage. He gave the impression at first that he did not. The questions and answers went like this:-
COURT: You have got to tell us what you did. He is suggesting to you that until you read about the Apalara murder case in the proof of the book, you did not remember about what you read. Is that right?
Mr. Neill: My Lord, I do not remember the witness having said …. COURT: Mr Horfburg, are you saying then that you read about Apalara murder case in the proof of the book?
COURT: But that is what you have just said. I tried to be of assistance to you. His question is: Until you read of the Apalara murder case in the proof of that book “One-eyed man is King”-you did not remember any more about the case, about what you read previously in local newspapers.
COURT: ….Then the answer you had given earlier is correct……. Did you read about Apalara murder case in the proof of that book?
COURT: And is it true that until you read about it in the proof of the book you had not remembered what you had earlier read in the local newspa-pers?
Now, the only passage in the book, Exhibit ‘1’, which contains anything about the Apalara murder case is the one complained about by the Plaintiff! It is quite obvious from the portion of his testimony which I have reproduced above (from the official transcript of his evidence) that, originally, the wit-ness Horfburg was not prepared to admit that he had read of Apalara murder case in the book. When he was confronted with the question whether he had read of it in the book, he answered: “I never said this, my Lord”. I have formed the view that this witness is not as a witness a satisfactory one. However, the finally admitted (1) that he read of the Apalara murder case in the proof of the book; (2) that he was in Nigeria at the time of the Apalara murder case; (3) that he had earlier read of the Apalara murder case in the local newspapers; (4) that he did not know, one way or the other whether the Plaintiff had ever stood trial on a murder charge; and (5) that after he had read the passage the Plaintiff is complaining about he did not try to find out whether the Plaintiff was involved in that murder charge. This coming from a witness who had said that the Plaintiff was in the forefront of political struggle, that he had read a great deal about him and knew him by reputation, that he had read the book with a view to determining its suitability for the Nigerian market and that he did his best to promote its sale, is staggering. There was abundant information available to the witness to have put him on his inquiry as to the fact that the book contained matter which upon inspec-tion he would recognise as defamatory. Mr Horfburg must certainly have known that the book was of a character most likely to contain libel. Failure by him having read the offending passage, in the light of the authorities I have discussed, to ascertain the correctness of the statements in the passage (particularly the part of it that said the Plaintiff was charged with murder) was due to gross negligence on his part. There were obvious facts and cir-cumstances which were known to him which would suggest to a reasonable distributor that the book was likely to be defamatory. I have formed the clear view that the witness Horfburgh had also been negligent and that, if he did not already know that the book contained libel on the Plaintiff, it was by neg-ligence on his part that the did not know. That being my fording, the 2nd Defendants, Thomas, Nelson and Sons Limited are also liable to the Plaintiff.
Borrowing from the words of Smith, L.J. in the Vitzetelly case I ask myself: Where is there anything as there was in Emmens v. Pottle, to the effect that it was not by negligence on the part of both defendants that they did not know that there was a libel in the book which they disseminated? What are the special circumstances of this case with regard to the question whether the two defendants took due and reasonable care in the conduct of their business in this respect? In my judgement both questions have to be answered adversely to both defendants. As I had said at the outset the bur-den of proving that they did not know that the book contained the libel com-plained of, that they did not know that the book was of a character likely to contain a libel and that such want of knowledge was not due to any negli-gence on their part lies entirely on the defendants. This burden they have both failed to discharge. I am unable to find that they were innocent dis-seminators. On the contrary I find them liable to the Plaintiff in damages.
This brings me to the crux of the case-the matter of damages. The first question of principle which, trite, though it may be, seem relevant to be dis-cussed at the outset; it is that of the joint liability of the defendants for the libel of which I have found them both answerable. The principle is that all persons who are concerned in the commission of a tort are jointly and sever-ally liable for all damages caused by it and liability for the false publication, whether of the publisher, distributor or vendor is determinable in one action. (See Gatley, Libel and Slander, 6th edition paragraph 245 at page 125; see also note 97 on that page). The Plaintiff in this action has sued both defen-dants “jointly and severally”. In such a case, where two or more persons are sued as co-defendants in respect of a joint libel the Court may not discrimi-nate between them in finding separate damages against the different defen-dants, but there must be one verdict and one judgement against all for the total damages awarded. (See Gatley, Libel and Slander paragraph 1390, page 606 of the 6th edition). The true criterion of damage is the whole injury which the Plaintiff has sustained from the joint act of the defendants. (See Halsbury’s Law of England, 3rd edition paragraph 213; see also paragraph 1390 of Gatley).
The Plaintiff claims damages in the sum of £100,000. In paragraph 26 of his statement of claim he pleaded that in aggravation of damages he would rely on the facts that:
(a) The book was reviewed by a columnist in the Morning Post of 13th February 1967, Exhibit ‘2’;
(b) That the defendants had continued to sell the book after the Plaintiff had been invited into the Federal Military Government, appointed Vice-Chairman of the Federal Executive Council, Commissioner for Finance and Chancellor of Ife University;
(c) that the defendant despite the Plaintiff’s denial that he was involved in Apalara murder or any other murder case still insisted that the said pub-lication was justified and have refused or neglected to publish an apology or make amends.
Learned Counsel for the Plaintiff, addressing the Court, submitted that the Court should award exemplary damages and that the Court should look at the whole conduct of the defendants, from the time of the publication to the time of the verdict-that the Court is entitled to consider their action before the action, after the action and in Court during the trial. (See Halsbury’s Laws of England, 3rd edition paragraph 207; Seelkoku v. Ziks Press Limited 19 N.L.R. p. 12). As to damages learned Counsel referred me to the case of Rubber Improvement Company v. Daily Telegraph (1963) 2 W.L.R. 1063 and discussed at paragraph 1073 of the English and Empire Digest, in which he argued that damages of £75,000 and £117,000 respectively were award-ed. Learned Counsel however failed to appreciate that in that case the Court of Appeal held that the damages awarded were so excessive that they could not be allowed to stand.
The Learned Queen’s Counsel for the Defendants argued that damages that may be awarded should be compensatory only, which can include dam-age to his business, career, social and injured feelings; but it is suggested by him that, except for the case of injured feelings, none of the other matters arise in the instant case. As to aggravated damages pleaded in paragraph 26 of the statement of claim learned Queen’s Counsel submitted that the defen-dants were not aware of the defamation when they continued to circulate the book after the Plaintiff had been appointed to offices in the Federal Military Government. He also argued that the defendants had not sought to justify their act as pleaded. Regarding the affidavit of the witness Hulland he con-tended that the defendants no longer rely on this but had filed it in the first place because it was necessary for the defence of “unintentional publica-tion”. He also contended that it would be unfair to consider as a matter of damages the fact that the defendants had not agreed to pay compensation. He argued that the word “involved” which had crept into the case was never intended to refer to the Plaintiff in a derogatory way. Finally, he submitted that a very modest sale of copies of the book had been made and a very mod-est award of damages was necessary.
After the very forceful arguments of Counsel on either side as to damages, the first matter to consider is whether there is any authority to guide the Court on this matter.
The amount of damages, in a jury case, is usually a matter for the jury (same as a Judge sitting without a Jury) who in assessing them should be governed by all the circumstances of the particular case. They are entitled to take into consideration the conduct of the Plaintiff, his position and standing, the nature of the libel, the mode and extent of publication, the absence or refusal of any retraction or apology, the whole conduct of the defendant and the evidence led in aggravation or mitigation of damages. (See McCarey v. Associated Newspapers Limited and Others 2 Q.B.D. 86, it was held that there was a clear distinction between compensatory and punitive damages, and that the true measure of damages for libel was compensatory; and that, while compensatory damages might take into account not only any actual and anticipated pecuniary loss and the social disadvantage resulting or like-ly to result from the wrong done but also the grief and distress caused to the Plaintiff, and any high handed, oppressive, insulting behaviour by a defen-dant which increased his mental pain and suffering and might constitute injury to his pride, punitive or exemplary damages should not be awarded except in the case of a defendant who has profited from his own wrong. It was also held that an award of £9,000 was excessive since there was no pecuniary loss or social damage. In that case Pearson, L.J. said:
“…What I think is to be derived from that case, is this: that from hence-forth a clear distinction should be drawn between compensatory damages and punitive damages. Compensatory damages, in a case in which they are at large, may include several different kinds of compensation to the injured Plaintiff. They may include not only actual pecuniary loss or any social disadvantages which result, or may be thought likely to result, from the wrong which has been done. They also include the natural injury to his feelings-the natural grief and distress which he may have felt at hav-ing been spoken of in defamatory terms, and if there has been any kind of high-handed, oppressive, insulting or contumelious behaviour by the defendant which increases the mental pain and suffering caused by the defamation and may constitute injury to the Plaintiff’s pride and self-con-fidence, those are proper elements to be taken into account ….. But there is a sharp distinction between damages of that kind and truly punitive or exemplary damages. To put it in another way, when you have computed and taken into account all the elements of compensatory damages which may be awarded to the Plaintiff and arrived at a total of £x, then it is quite wrong to add a sum of £y by way of punishment of the defendant for the wrong doing. The object of the award of damages nowadays is not to pun-ish a wrongdoer but to compensate the person to whom the wrong has been done. Moreover, it would not be right to allow punitive or exemplary damages to creep back into the assessment in some other guise .. This award of £9,000 by the jury goes far beyond what can be regarded as prop-er compensation to the Plaintiff. As compensation to the Plaintiff for the wrong done in the present case, it is an excessive and extravagant and exorbitant, and in my view should not be allowed to stand. If it were allowed to stand, it would be setting a most dangerous precedent for future awards of damages in this branch of the law ……
In Broadway Approvals Limited and Another v. Oldhams Press Limited and Another 1965 1 W.L.R. 805 it was held (among other things) that the awards of £5,000 damages to the Defendant Company and £10,000 to its Managing Director were out of all proportion to any injury suffered by them; that it was excessive and so erroneous as to require a new trial. In that case, Sellers, L.J. stated at page 819:
“In Rookes v. Barnard (1964 A.C. 1129) Lord Devlin dealt with dam-ages in a manner which met with the unqualified approval of the other members of the House of Lords who heard that appeal and the decision was applied in this Court in McCarey v. Associated Newspapers Limited (1965 2 Q.B.D. 86). It is now established that compensation is the normal basis for damages for defamation and that punitive and exemplary dam-ages should only be awarded in the case of a defendant who profited from his own wrongdoing in publishing the defamation….. It may not always be easy to apply the exception for punitive damages on the basis that a defendant has profited by his own wrongdoing. It was submitted to us that the exception applied here. I will content myself for the present by saying that if Lord Devlin had intended newspapers in publishing items of news as here to fall within a punitive penalty and not merely compensating lia-bility I would have expected it to be expressly so stated. Newspapers would never be immune from the risk of penalty if that is the right inter-pretation. They, in the ordinary course of their business, publish news for profit. It would seem that a more direct pecuniary benefit would have to be shown to make a newspapers or any other defendant liable for punitive damages……
I now return to the instant case, bearing in mind those authorities to which I have referred. In considering how much the Plaintiff should be compen-sated with, so far as money can do it, I am to take into account the position and standing of the Plaintiff, the nature of the libel and the extent of its pub-lication, the absence of an apology and the conduct of the defendants regard-ing evidence at the trial which bears on aggravation or mitigation of damages. In considering these elements (and other which I shall later dis-cuss) it is important to remember that the Plaintiff admitted that he had insti-tuted a separate action in England against the author and publisher of the book in question. What I must do therefore is to consider how far the dam-age suffered by the Plaintiff can reasonably be attributed solely to the libel with which they are concerned (See Lewis and Another v Daily Telegraph Limited and Lewis v. Associated Newspapers Limited, (1963) 2 A.E.R. 151 in which Lord Reid at p. 156 said:
…… They must do the best they can to ensure that the sum which they award will fully compensate the Plaintiffs for the damage caused by the libel with which they are concerned……
It as been established in evidence and admitted by the defendants that the Plaintiff is a man of great eminence. Mr. Olatunji Braithwaite, a legal prac-titioner and one of the Plaintiff’s witnesses described him as a “national political leader, a well respected man in the community and a man of great honour and integrity”. This, I think, must be considered when assessing damages that this was the kind of person who was defamed with the kind of defamatory remarks appearing at pages 234 and 235 of the book, Exhibit ‘1’. Again I ought to bear in mind the fact that 152 copies of the book were dis-tributed altogether and that is soon as the Defendants were informed of the particular libel they took steps to withdraw the book from circulation. It was contended on behalf of the Plaintiff that exemplary damages should be awarded against the defendants because they stood to make profit out of it. My answer to that is that the profit which the defendants stood to make was quite modest and, in any case, on the face of the authorities which I have dis-cussed, exemplary damages do not arise in the circumstances of this case. I would adopt the view of Sellers, L.J. in Broadway Approvals Limited v. Odhams Press Limited on the matter of punitive and compensatory damages with regard to newspapers who publish news for profit. I would extend this to cover the case of booksellers. The defendants as booksellers and distrib-utors circulate books for profit but I am certain that persons in their position were never contemplated by Lord Devlin’s discussion of persons who prof-ited by their own wrongdoing. A more direct and substantial pecuniary ben-efit must be shown to make a bookseller or distributor liable for punitive or exemplary damages.
I now come to the failure of the defendants to tender apology. The Plaintiff’s solicitor in his letter dated 8th December, 1967 drew the attention of the Managing Director of the 1st Defendants to the defamatory matter in question and demanded:
(a) An immediate stop of circulation of the book;
(b) A withdrawal from circulation of copies of the book already circu-lated;
(c) the publication of an offer of amends by way of apology in the front pages of at least 3 daily papers in Nigeria with the widest circulation; and
(d) Payment of £100,000 being share of their involvement in the circu-lation of the libel.
One would think that the demand at (b) was almost an impossibility and that the demand at (d) was entirely out of all proportion with the harm done by the defendants. The 1 st Defendants acknowledged the Plaintiff’s letter by theirs of 12th December, 1967 in which they said the matter was being looked into. By a subsequent letter they wrote on 5th February, 1968 they said they were prepared to make an offer of amends in pursuance of s.6 of the Defamation Act 1961 although they were, in so doing not admitting “legal liability for the matter complained of or at all”. The affidavits of the witness Hulland and that of the author were attached. The 1 st defendants agreed to make the required publication and to take steps reasonably practicable to notify persons to whom the book had been sold that “the words complained of are alleged to be defamatory of Chief Awolowo”. The 1 st defendants then stated: “The circumstances in which the publication came to be made are fully stated in the affidavits we enclose and which we ask you kindly to peruse. On reading these, you will, we trust, be satisfied that the publication was made in the ordinary and regular course of business of Kingsway Stores without any lack of reasonable care and without any knowledge or suspicion on the part of Kingsway Stores of Nigeria of circumstances by virtue of which the word in question might be thought to contain the matter alleged to be defamatory”. In the attached affidavit Mr. Hulland stated that he had read the extract complained about and he was not aware of any circumstances by virtue of which such matter might be thought to be defamatory of the Plaintiff! Needless to say that the Plaintiff did not accept the 1 st defendant’s offer of amends. The 2nd Defendants received a similar letter from Plaintiff’s solicitors which they replied to say they had forwarded to their principals Messrs. Cassells & Co. in London. Up till now the Defendants have not thought it fit to tender an apology to the Plaintiff. The conduct of the defendants did not appear to support the great distress which the 1st Defendants claimed to have suffered as a result of the distress which the Plaintiff had suffered by any book on sale in their stores.
I do not consider that the fact that the book had been reviewed by a colum-nist in the Morning Post of 13th February, 1967 (copy of which is Exhibit 2) should be an element in the case. The review was not the act of any of the defendants. The only matter that calls for scrutiny with regard to it is the fact that the 1st Defendants continued to sell copies of the book up to 8th of December, 1967 when the review had been published since the preceding February. The defendants said they never read the review. I cannot say on the face of the evidence, one way or the other, whether they did. The review was brought to the notice of the Plaintiff by Sir Samuel Manuwa. That would have been the moment for his solicitors to have written to the defen-dants. Not having brought the review to the notice of the Defendants then it is difficult for me to say that the defendants knew about the review and notwithstanding continued to circulate copies of the book. Likewise, the fact that the defendants continued to circulate the libel after the Plaintiff had been appointed to eminent positions in the Government and the University of Ife, I do not think is a matter of aggravation. On behalf of the defendants it was contended that the Plaintiff attained yet greater eminence after the publica-tion of the book and that this was an element to consider in the harm which has been done to him. I think one ought to bear in mind that the Plaintiff is a politician, a man who must of necessity depend on the esteem of the peo-ple of his country and of other countries. Compensatory damages must therefore be considered which would take into account not only any actual and anticipated pecuniary loss and social disadvantage resulting or likely to result from the wrong done, but also the grief and distress caused to the Plaintiff. It should, for instance, be taken into consideration the fact that the harm done to the Plaintiff may not even now be fully assessed. He is a politi-cian and the witness Olatunji Braithwaite had said that the would not cast his vote for a man like that if what was contained in the book were true.
It is not easy for me to shut my eyes to the conduct of the defendants in their pleadings and even at the trial. As I had said at the beginning of the judgement they had pleaded that the Plaintiff was “involved” in another murder trial as if that were justification for the defamation in the instant case. However, that pleading was amended but the Plaintiff was asked at cross-examination whether he had given evidence in the “Ikene murder trial”.
These are elements which fall for consideration when one is examining the compensatory aspects of damages in this case. Such compensation ought to be made which will take account of the damage done to the Plaintiff’s injured feelings, and to his political career. The financial situation of the Defendants must not enter into it.
The Plaintiff claims £100,000. That, to my mind is not only fantastic; it is out of all proportions to the damage done to him by the dissemination of copies of this book of which the defendants are neither the author nor pub-lishers. In the light of the latest Judicial views expressed on the subject, some of which I have discussed, a reasonable jury, correctly applying the true measure of damages in libel would not award a figure like this. In McCarey v. Associated Newspapers damages of £9,000 for injury done to a professional man’s reputation and honour was held to be excessive. Learned Queen’s Counsel referred me to the decision of Onyeama, Acting C.J. (as he then was) in N. Anunobi v. Nigerian National Press and Another 1964 Lagos High Court Reports page 12 in which the Plaintiff claimed £50,000 as dam-ages for defamation and the learned trial Judge awarded £250. With regard to this I like to say that each case has to be considered entirely on the cir-cumstances of it. The Plaintiff in the Anunobi case did not have the same standing as the Plaintiff here. The nature and character of the libel in that case is different to the one here and so are all the circumstances. To borrow the words of Lord Hamilton in Greenlands Limited v. Wilmshurst and the London Association for the Protection of Trade (1913) 3 K.B. 507, there must be some reasonable relation between the wrong done and the solatium applied.
There are but few reported Nigerian decisions on the matter of quantum of damages in libel cases. (See Ikoku v. Ziks Press Limited and Another XIX N.L.R. 112; See also Chief S. L. Akintola v. F. V. Anyiam 1961 1 A.N.L.R. 508; See also R. N. Okoroji v. wafor Ezuma 1961 1 A.N.L.R. 183; See also Chief Rotimi Williams, Chief S. L. Akintola, Chief Obafemi Awolowo v. The West African Pilot 1961, A.N.L.R. 866). Even so none of these cases con-cerns the dissemination of defamatory matter in a book. This is the first time, as far as I know, that a Nigerian Court has been called upon to deal with such a case. The circumstances of each case have to be taken into consideration in arriving at a decision as to the assessment of damages. The facts vary from case to case. The main exercise, as I have attempted to show, is to place the Plaintiff in as good a position, so far as money can do it, as if the matter complained about had not occurred. In essence, damages of this kind of case has to be compensatory. I am guided in my assessment of damages by all the circumstances of the case-the conduct of the Plaintiff, his posi-tion and standing, the nature of the libel, the moderate circulation of the book in Nigeria, the refusal or neglect on the part of the defendants to tender apol-ogy and so on. I have borne in mind the considerations which I have dis-cussed at length in the measure of the damage done to the Plaintiff and for which he should be compensated. I have come to assess damages in his favour at £5,000. I accordingly enter judgement for the Plaintiff against the 1st and 2nd Defendants, jointly and severally for £5,000 with costs assessed at £210.
Judgement for the Plaintiff against the Defendants jointly and severally for £5,000.