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ALAWIYE V. OGUNSANYA
4 NWLR (Pt.864)486
VICTOR AIMEPOMO OYELEYE OMAGE, JCA (Presided and delivered the leading judgment)
FRANCIS FEDODE TABAI, JCA
OLUFUNLOLA OYELOLA ADEKEYE, JCA
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]
APPEAL – Findings of fact by trial court – duty on appellate court not to unduly interfere with same.
COURT – Court of Appeal – when same will interfere with decision of lower court.
COURT – Findings of fact by trial court – duty on appellate court not to unduly interfere with same.
DAMAGES – Quantum of damages in defamation – how determined.
DEFAMATION – Defamation – need for plaintiff to state actual defamatory words uttered or published.
DEFAMATION – Ingredients of defamation – onus on plaintiff to prove same.
DEFAMATION – Libel – where defendant denies making defamatory publication – need for court to rely on circumstantial evidence.
DEFAMATION – Meaning of defamation – words capable of conveying defamatory meaning – how determined.
DEFAMATION – Quantum of damages – principle guiding same in action for defamation.
DEFAMATION – Standard of proof of defamation – whether proof of damages required where imputation of unchastity to a woman is established.
EVIDENCE – Burden of proving ingredients of defamation – on whom lies.
VICTOR AIMEPOMO OYELEYE OMAGE, JCA (Delivering the leading judgment):
This is an appeal against the decision of the High Court Ogun State of Nigeria sitting in Ijebu Ode, presided over by Honourable Justice J. Mabogunje. The judgment was delivered on 10th October 1995.
In that court the plaintiff now respondent sued the defendant now appellant for damages for (1) Slander, and (2) Libel. To wit that on 6th August, 1993, the defendant at the Central Mosque Ijebu Ode uttered the following words concerning the plaintiff; and thereby defamed the plaintiff in these words in Yoruba saying the words (supplied) and for which the English translation is “My brothers in Islam, you should not believe what Alhaji Osikoya told you as the truth because he is telling a lie to cover up the principal of the school. Both of them are lovers, Alhaji Osikoya is allowing his lust to over ride his religious duty.”
That on the 13th August 1993, in and around the Ijebu Ode Central Mosque, the defendant caused to be published concerning the plaintiff words which defamed the plaintiff in a handbill titled “Ikede” which may mean notice or information. In the said Ikede, the following words were written in Yoruba; which words are supplied, and interpreted in English language thus, “This is to inform all brothers in Islam of the outcome of the meeting held after last Friday between myself and Alhaji Fatai Osikoya (Fisko) together with some muslim brothers and committee on the issue of the shortcomings of the principal of Moslem Comprehensive High School. It is clear to Fatai Osikoya that all the allegations I made are true. It is clear to Fatai Osikoya to investigate all the allegations I made, but he failed to do so because we have learnt that the principal is his mistress.” For each defamation in slander and libel, the plaintiff claimed the sum of N250 million, the total is N500 million naira.
In the suit the plaintiff filed a further amended statement of claim and the defendant also filed a further amended statement of defence, upon which the suit was considered and determined by the learned trial court on 10th October 1995. In the judgment of the court are contained the following in the last paragraph; “After considering the evidence before the court the fact that the slander and the libel were published on different days, the present inflationary trend and the sinking value of the naira, I award N1,000,000.00 (one million naira) for the slander and N2,000,000.00 for the libel.” The defendant was dissatisfied with the judgment, and has appealed to this court.
The record shows that the defendant first filed a notice of appeal dated 13th October 1995 of two grounds; and filed another dated 4th December 1995, of seven grounds. The grounds in the notice of appeal of 13th October 1995, are contained in the latter notice of 4th December 1995. The appellant filed his brief of argument in this court on 18th February 1998. In the brief the appellant submitted the following four issues for determination of the appeal. They are:
“(a) Was the evidence of the witnesses of the respondent in respect of the publication of the alleged slander credible enough as to be believed in proof of the case? The issue is distilled from ground 2 of the appeal.
(b) Did the lower court considering the issue as to whether the appellant uttered the alleged slanderous statement properly evaluate and ascribe probative value to the evidence proffered by both parties. Distilled from grounds 1, 3 and 7.
(c) Did the respondent prove the publication by the appellant of the alleged libel contained in exhibit A? Distilled from grounds 4 and 5.
(d) Whether in awarding cumulative damages of three million naira, the lower court took into consideration and applied the settled principles of law which ought to guide the court in making such award.”
The respondent also formulated three issues, which he submitted are more appropriate for determination of the appeal. They are:
(a) Whether the findings of fact made pursuant to evaluation of evidence in this suit by the trial court are perverse and unsupportable by other evidence on record as to warrant a reversal?
(b) Was the learned trial Judge wrong in holding that the appellant published the libelous leaflets?
(c) Whether having regard to the extent of the coverage of the defamatory publication the status of the plaintiff; the attitude of the defendant, and grossly reduced value of the naira, the award of the sum of N3 million naira is not too low.”
In the cross appeal filed by the respondent the respondent/cross appellant adopted its issue (c) or 3 above, as the sole issue of the cross appeal, to wit, whether having regard to the extent of coverage of the defamatory publication, the status of the plaintiff, the attitude of the defendant and the grossly reduced value of the naira, the award of the sum of N3 million is not too low.” Upon this issue, the cross appellant urged the court to exercise its jurisdiction under section 16 of the Court of Appeal Act; and review upwardly the order of damages awarded by the learned trial Judge. The cross appellant urged the court to dismiss the appeal, and allow the cross appeal, because the learned trial court had not properly allowed the following considerations to affect her award; viz, the status of the plaintiff, as a highly reputed school principal, a moral crusader, matron of all Catholic youths in Ijebu Ode diocese, a married woman of substance, with two children one of who is a lawyer and the other a student of architecture, a doctorate degree holder, a role model to students and teachers;
“(2) The fact that the publication took place on different days for the slander and libel on the one hand and libel: The geographical spread of the defamation in Ijebu Ode, Lagos, Benin, Ibadan, Lokoja, Ruhei Homerton and London. The absence of any retraction and apology and the lack of remorse by the defendant, before and during the trial. The continuing sinking value of the naira, and the acute inflation of the country.”
The appellant filed an appellant’s reply brief. Besides reiterating that the award made by the trial court in favour of the respondent was excessive as it was based on the principles of aggravated damages which the respondent did not ask for, the appellant respondent in the appellant’s reply brief to the counter claim contained in the respondent’s brief. In this connection the appellant adopted the arguments contained in his issue (d) or 4 and cited recent authorities in Basorun v. Ogunlewe (2000) 1 NWLR (Pt. 640) 221 in which Aderemi JCA and Nzeako JCA, both separately expressed the view, that the award of damages or quantum of it is not the primary factor in an action for defamation but the vindication of the good character of the plaintiff. The appellant in response to the counter claim submitted that the award of cumulative sum of N3 million made by the court below is excessive and urged the court to reduce it, if the substance of the submission on appeal fails. He submits that the appeal should be allowed.
I will in this appeal consider together the set of issues formulated by both the appellant and the respondent where the itemized issue has the same theme; together with the issue formulated in the counter claim. The sole issue formulated in the counter claim is on issue (d) or 4 of the appellant and on issue 3 or C of the respondent. There is a vital issue that I must first direct attention to in this appeal, it is the legal requirements in an action in defamation which says that the actual words in which the alleged defamatory words are uttered or published should be stated. The provision is contained in the law of defamation by Gatley in Gatley on Libel and Slander see 7th edition, paragraph 987, it reads;
“if the libel or slander is in a foreign language it must be set out in the same language and followed by a literal translation. It is not enough to set out the translation without stating the original word or vice versa.”
The rule was followed by Jibowu CJ, of the Old Western Region High Court in Bakare v. Rasaki Ishola (1959) WRNLR 106 and by Ajuyah J, in the unreported case in Bendel State in suit No.3A/811 delivered in January 11th 1982 Ogun Imohimi v. Agbonlare Alukpe. In both cases which were reported the language of the area their language was regarded as a foreign language, and treated as such and the English translation of the local language was required. The English language being the language of the court, the requirement has its technical meaning because it aids the proof of publication, and communications to the defendant of the alleged libelous material. In the instant appeal, the words alleged to be libelous were spoken and allegedly written in the Yoruba language, I will now reproduce the words as allegedly stated. The plaintiffs now respondent claimed from the defendant now the appellant in the court below for saying of and concerning the respondent on 6th August 1993 at the Ijebu Ode Central Mosque the following words
“Eyin Jamma Musulumi e ko gbodo gba ohun ti Alhaji Osikoya wi gbo gegebi otito nitori oun pa iro po lati fibo Oga Ile Iwe naa. Awon mejeji n yan ara won ni ale. Alhaji Osikoya si nje ki ifekufe ti oni si ale re bo ojuse re ninu esin? Which words when translated into the English language means. “My brothers in Islam, you should not believe what Alhaji Osikoya told you as the truth because he is telling a lie to cover up the principal of the school. Both of them are lovers. Alhaji Osikoya is allowing his lust to override his religious duty.”
In the alleged slanderous words allegedly published against the plaintiff, she filed a claim for N250 million naira. In the claim for libel, the plaintiff alleged that the libelous words were published in a leaflet distributed inside and outside the Ijebu Ode Central Mosque, and to other diverse people in Nigeria and overseas; the following words which are contained in leaflet titled “Ikede” on 13th August 1993 in these words. “Eyi ni lati fi to gbogbo Jamma Musulumi leti lori ipade to waye lehin Jimo ti o koja larin emi ati Alhaji Fatai Osikoya (Fisko) loju pe otito ni mo so. Gegebi oti ye o leto fun Fatai Osikoya (Fisko) lati se iwadi lori oro timo so, sugbon okuna lati wadi otito nitori a gbo pe onfi oga Ile Iwe na se aya.” Which in English translation means “This is to inform all brothers in Islam of the outcome of the meeting held after last Friday between myself and Alhaji Fatai Osikoya (Fisko) together with some muslim brothers and committee on the issue of the short coming of the principal of Moslem Comprehensive High School. It is clear to Fatai Osikoya to investigate all the allegations I made, but he failed to do so because we have learnt that the principal is his mistress.”
In the court below, the plaintiff tendered the evidence of eight witnesses to prove that the said words were uttered on 6/8/93 in the case of slander and that in the case of the claim for libel the defendant wrote the handbill a leaflet and caused the same to be distributed and published in the Ijebu Ode Central Mosque on the 13th August 1993. The appellant in his issue (a) or 1 above has submitted that he did not utter the words alleged; on 6th August 1993 or at any time after; and that the five witnesses on whose evidence he relies to establish his defence suffice to prove his innocence of the accusation. The appellant submitted in his brief on the said issue that the witnesses for the plaintiffs were not sufficiently credible to establish the alleged uttering of the said words. In issue 6, on 2 and 1 the appellant submitted that the learned trial court failed to evaluate the evidence tendered in the court below, and did not ascribe to the said evidence the necessary probative value due to the evidence tendered by both parties.
In this appeal, I want to treat first the veracity of the words allegedly made by the defendant/appellant in defamation of the respondent/plaintiff. The words relevant in the alleged utterance are those allegedly made on 6th August 1993 to the hearing of about six thousand worshippers in the Ijebu Ode Central Mosque. The words include, and aver that “Both of them are lovers, Alhaji Osikoya is allowing his lust to override his religious duty.” The plaintiff who complained of the words is a married woman, a teacher; a principal of the Comprehensive High School a practicing Catholic who holds the position of a matron to Catholic youths; the holder of a doctorate degree in English. In respect of such a person is the imputation allegedly made by the defendant/appellant defamatory in slander of the plaintiff? In the case of Sim v. Sketch (1936) 2 All ER 1237 the standard prescribed for a defamatory utterance as demonstrated by Lord Atkins in that case has come to be accepted in Nigerian courts and applied in Matani v. Daswani (1942) 8 WACA 216, and Rotimi Williams Akinbola and Awolowo v. West African Pilot (1961) 1 All NLR 866; as the rule of proof of the utterance of slander. The rule is applicable whether in libel or slander; it is this, “would the words used tend to lower the plaintiff in the opinion of or the estimation of right thinking members of the society?” It is said that the defendant said the words of and concerning the plaintiff a married woman which aver that she and another are lovers who is not her husband. How would right thinking members of the public view the plaintiff. That is the issue to be determined in this matter. In the court below, the plaintiff’s witnesses 1st, 2nd, 3rd, 4th and 5th, 6th, 7th and 8th witnesses testified that they thought less of the plaintiff; they said, they were shocked and could not believe that the plaintiff could do that. Another said “A married woman who is said to be having sex with another man is regarded as a harlot, a useless woman, a worthless woman who is shunned in the society.” “Everybody in the Jumat service heard the defendant say in conclusion, what I mean by befriend is that Osikoya is having inter sex with Ogunsanya.” Ogunsanya is the name of the plaintiff – The above is part of the testimony of the 1st plaintiff’s witness and by the 2nd plaintiff’s witness; “Mrs. Ogunsanya is married with children; I am about 60 years old; if a married woman is alleged to be having an adulterous association, if I were the husband, I will drive her out immediately, the community will regard her as useless. She becomes a toilet roll. They would call her cheap woman. She also becomes a target for anyone who hears to approach her for sexual relationship. 6th plaintiff’s witness; said “Mrs. Ogunsanya; is an upright married woman held in high esteem, the ministry is waiting for her to clear her name before we know what to do next. If the publication were true she will be summarily retired.” The above witnesses have testified to their opinion of the plaintiffs on hearing the words allegedly made of the plaintiff on the 6th August 1993. Were the words true? The 1st – 7th witnesses of the plaintiffs have deposed in their testimonies that the words cannot be true of the plaintiff, they know. If they are, then the plaintiff is unworthy of the respect she has, who uttered the words. The plaintiff has sued the defendants as the person who uttered the words and the testimonies of the witnesses in the presence of the defendant in the Central Mosque where he is said to utter the words are as follows: “On 6th August 1993 at Jumat prayer, Alhaji Fatai Osikoya came to the Jumat service. He held the microphone and announced that what Alhaji Alawiye, (the defendant) said about Dr. Mrs. Ogunsanya was a lie, Alhaji Osikoya is the Chairman Board of Governors of Moslem Comprehensive High School where Dr. Mrs. Ogunsanya is principal. There were over one thousand people in the mosque on that day. All Ijebu Ode prayed there. After Alhaji Osikoya had spoken, the defendant moved forward to seize the microphone and said the words in Yoruba, now translated into English, “Ijebu Ode Muslim, you are sitting down here that Alhaji Osikoya is befriending Mrs. Ogunsanya, and you want Osikoya and Ogunsanya to spoil muslim character in Ijebu Ode etc.” The above is the testimony of the 1st plaintiff witness, the 2nd plaintiff witness was also in the mosque; he said. “On 6th August, the defendant was also present. Alhaji Osikoya got up to speak on what Alhaji Alawiye said. He said it was not the fact that he had made investigation. He and 6 prominent people called on the principal without notice and challenged her on what the defendant said etc; when Alhaji Osikoya finished speaking the defendant got up, rushed towards Alhaji Osikoya. He was blocked from reaching Osikoya. He then started shouting that Osikoya and the principal have girl friend, boy friend relationship. That he is telling lies; they want to destroy muslim religion. Alawiye was shouting, that Osikoya is a liar; that he is trying to cover up the principal. There were over 6,000 people in the mosque it was a large crowd. Everybody heard him. The Committee was trying to cool him down.” The 3rd person who was clearly in the Ijebu Ode Central Mosque on 6th August 1993 was the PW7, who deposed that he is an engineer by profession. He deposed further at hearing as follows, I know Mrs. Ogunsanya, the plaintiff; she is a christian of the Catholic denomination. I know the defendant. He is a moslem. Dr. Mrs. Ogunsanya is the principal of Moslem Comprehensive High School, where I am chairman of the Board of Governors, since 1990.” After worshipping in his own mosque he said “I went to the Central Mosque for prayers immediately after prayers, I sought permission to speak to the congregation; on the allegation made the previous Friday by Alhaji Alawiye, the defendant.” Etc, I said, I was told of what Alhaji Alawiye said at the last Jumat service at the Central Mosque, that I have checked his statement and found it to be incorrect. Immediately I spoke Alhaji Alawiye who was standing near the door inside the mosque flared up and said in Yoruba “Alhaji Osikoya ma bae, Konle o fe titori obo ta musulumi. Mo mope principal ale e ni.” Meaning Alhaji Osikoya I will finish you because of sex, you want to dash away the muslim religion. I know that Mrs. Ogunsanya is your concubine or lover.” He then jumped forward in anger to meet me.” Against the above testimonies, the defendant himself deposed that, he is a merchant. “On 6th August 1993; immediately after prayers Alhaji Osikoya took the microphone and told the entire congregation in Yoruba thus; “Oniro ni
Alawiye” meaning Alawiye, (defendant) is a liar. Osikoya said the congregation should not believe what I told them last week about children not going to school, and that I am a liar. I then raised my hand to talk. I capitalized on my previous appeal. I said the congregation and the parents should go back and investigate on the claim of the parents and students. That because Alhaji Osikoya is the Chairman Board of Governors of the school he would not want the truth to prevail. The matter was resolved by Management Committee. I did not say anything against Osikoya, except that he was proved wrong.”
The testimony of 5th defence witness. I remember 6th August 1993, after the Jumat service Alhaji Osikoya stood up, and said it is not true that school children were not allowed to say the Fatia or to pray (Ikirun). That the congregation should not believe what Alhaji Alawiye said. Alawiye then raised up his hand; he said that Alhaji Fisko spoke the way he did because he is Chairman of the Board of Governor. I did not hear Alhaji Alawiye say anything defamatory about Alhaji Fisko and the principal of the school on the day.” It is pertinent to say that the testimony of Otunba Abbas 5th defence witness was given not in cross-examination but as evidence in Chief. In cross examination he said there were more than one thousand people in the mosque on the 6th August; Alawiye called him to give evidence; He said “we sit together in the mosque” we always exchange greetings at the Jumat I am a trader.” The DW1 was another witness for the defence who said he was in the mosque on 6th August 1993. He said “I was also in the mosque on 6th August 1993. I heard Alhaji Osikoya say that Alawiye said was not to be followed. Alawiye then raised his head that the congregation should go and do the enquiries. No more was said on 6th August 1993.”
Faced with such complete denial of uttering the words on the 6th August 1993 in which the schooled witnesses testified; the learned trial Judge had the burden, and responsibility to assess the totality of the evidence before him and weigh each testimony on an imaginary scale the court had to determine whose testimony to accept as true or false. For instance, even the defendant himself admitted more than what the 1st witness for the defence said he did; yet the 1st defence witness said he was in the Central Mosque on 6th August 1993. The court below, was entitled to believe and she believed the version of the plaintiff’s witnesses who said the defendant rushed forward when he heard Osikoya say he was telling lies, rather than believe the version of the respondent and his witnesses who in all cases testified that the defendant raised his hand before he spoke to the jumat congregation, rather than rush forward in anger. It is clear that no self respecting person likes to be told publicly that he had told a lie, the predictable reaction of wanting to confront the speaker is not unusual. What is unusual is the calm action of raising of hand in order to be allowed to speak. Such a person who could justifiably be excited by being called a liar does not wait to be allowed to deny the averment made against him.
Secondly the direct evidence of what took place on the 6th August 1993 given by the 7th PW is so credible and believable. The court below believed it.
Infact the truth of the scenario in which the appellant answered Alhaji Osikoya came out in the defendant’s evidence in chief, when the defendant said “on 6th August Osikoya came and took the microphone. He told the audience that there was no truth to all I said on the 30th July. I was of the view that Osikoya was lying, I was not happy that Osikoya said I was lying. I responded where I was standing without a microphone. I did not tell them that Osikoya was lying. I now say that I said Osikoya was lying. I also said he was deliberately covering the situation to protect his office etc.” The testimony of the defendant is at variance with the evidence of his witnesses who said in each case, 1, 2, and 3, DW that the defendant on 6th August 1993, raised his hand to ask for permission to speak. Secondly, the testimony of PW7 as to where the defendant stood is correctly stated, when he said the defendant stood by the door inside the mosque; and shows that the defendant’s witness one spoke untruth when he said, the defendant sat with him on 6th August 1993. The defendant himself said he “responded to Osikoya, where he stood.”
Consequently, it is within the competence of the court below having assessed the evidence of all the witnesses before the court and the trial Judge has pronounced that she does not believe the schooled or tutored testimony of the defendant and his witnesses as to the ineffectual denial of the appellant that he did not utter the words of, and concerning the plaintiff. It is our law that the uttering of words which impute unchastity to a woman is actionable without proof of damages. It is also actionable without proof of damages to utter words about the plaintiff; words which injure the plaintiff in her profession ‘trade or office. In this case, the learned trial Judge found that the defendant did utter the words quoted above concerning the married woman who is the plaintiff; and the statement have been shown to have injured the plaintiff in her trade, profession; office and calling. The defendant has been found liable for slander.
Having read with great care and considered as correct the way the trial court reviewed the evidence as to the words uttered, the person who spoke the words, and the occasion and circumstances and the law relating to the proof of slander of a married woman in her profession and trade. I am also of the view that the words complained of referred to the plaintiff and it reduced the plaintiff in the opinion of right thinking members of the society. I also have found that the conclusions reached by the learned trial Judge below flow from the evidence tendered in court and that the ascription of fault and evaluation of the evidence was properly made and they flow from the evidence, I am unable to agree with the appellant that there is an error in the findings and conclusion of the trial court, I do not agree that the conclusion is perverse. It is our law that the Judge hearing the facts of a case is the dominis litis, the master of the facts. The Court of Appeal will not unduly interfere in the findings of fact. This court will not so intervene, as there is no reason to do so. See Balogun v. Akanji (1988) 1 NWLR (Pt. 70) at 301 per Oputa JSC. (11) Bamgbade v. Balogun (1994) 1 NWLR (Pt. 323) at 718.
In the event I resolve issues (c) of both the appellant and the respondent against the appellant. On issue (c) of the appellant, and issue (b) also of the respondent, which is severally referred to by the appellant in their brief as issue one when infact each of the party identified the issue as A in each case. Admittedly all that is written about the definition of a defamatory statement in issue B, above applies to the issue raised in issue (a) of both parties. However the complaint herein is of libel. Libel is a genre of defamation and it is actionable because it is in a written or permanent form without a proof of damages. The statement complained about in the plaintiff’s claim is as contained in exhibits A, 1 to A3; before the court. It is contained in the leaflet named “Ikede” allegedly made and published by the defendant. The words contained therein are written in Yoruba and have been translated to the English language it means
“This is to inform all brothers in Islam of the outcome of the meeting held after last Friday between myself and Ahaji Fatai Osikoya (Fisko) together with some muslim brothers and Committee, on the issue of the short comings of the principal of Moslem Comprehensive High School, it is clear to Fatai Osikoya that all allegations I made are true; it was the duty of Fatai Osikoya to investigate all the allegations I made but he failed to do so because we have learnt that the principal is his mistress.”
The principal of the Moslem Comprehensive High School is the plaintiff in this claim. The plaintiff has complained that the words so published are untrue; and that the words in printed form are defamatory of her character, and disparaging of herself in her home, her profession and calling, when the words published allege that she being a married woman was a mistress to another man.” The established principle of proof of defamatory words is as contained in the obiter dicta contained in judgment of Lord Atker in Sim v. Stretch supra. It is this: “would the words tend to lower the plaintiff in estimation of right thinking members of society generally.” I have quoted above in the earlier part of this judgment the opinion expressed by witnesses to the plaintiff 1 – 6. In particular the evidence of PW5, who is the Secretary to the progressive chapter of all Nigeria Conference of Principals, a conference that the respondent is a member of, she is the orator of the conference. The said witness PW5 deposed that he read the words contained in Ikede, exhibits A1 – A3 before the court. He had collected the reply he had from some students, the witness said, at a meeting held by the conference of principals on 19th August, the issue of the publication of the exhibit was considered; and since Dr. Ogunsanya the plaintiff was their member, and also as a principal and school administrator she is supposed to be a role model to both staff and student. To hold this position of leadership, her moral probity must be beyond reproach. That publication has assaulted the position the plaintiff is holding as principal and as an administrator.” The above testimony shows the extent of damage that the publication contained in exhibits A1 – A3 has done to the plaintiff. Clearly this in the opinion of her colleagues, the plaintiff had sunk low.
It remains to decipher from the evidence tendered the publisher of exhibits A1 – A3 called Ikede; and its contents. In the testimony of PW7 what occurred on 6th August 1993, the following is shown; and the refence therein is to the defendant and Mr. Osikoya is the witness, he said-
“when the defendant saw me going to the 1st floor, he disengaged himself from the people holding him, he followed me to the 1st floor (in the Ijebu Ode Central Mosque where the scenario occurred). People who saw him following me called on the Deputy Chief Imam and his lieutenants. They all came to the 1st floor where we were holding the meeting of the management committee. The people appealed to both of us. After the appeal, the defendant then threatened that he will be printing a pamphlet and distribute it all over the mosque and around the town to say that I have allowed a woman and sex to becloud my thinking.”
The defendant in his evidence in Chief denied that he published exhibits A1 – A3, but confirmed the testimony of the PW7 that a meeting with him and others took place upstairs on 6th August 1993. He deposed as follows-
“after the argument the Muslim Chieftain in the person of Alhaji Saliu Alejuleum and Alhaji Salaudeen and Aniyikaye called myself and Alhaji Osikoya upstairs with a few members of the management committee including the Chairman appealed to me and told Alhaji Fisko that his claim was not correct.”
The threat to publish a pamphlet was not admitted by the defendant on 6th August but on 13th August the following Friday leaflet appeared in the mosque premises bearing the name of the defendant/appellant. The contents of the leaflet is what the PW7 said he was told it would contain. The PW1 and PW2, who the defendant deposed to that he, suspected are the authors of the leaflet were not reported to be present at the scene upstairs where the PW7 said the statement was made to him by the defendant/appellant. The PW4 a reverend bishop of the Catholic faith deposed that when the plaintiff took exhibits A1 to him on 13/8/03, he went to the defendant, in the latter house, and eventually drove in the latter car to the Ijebu Ode Central Mosque where he saw boys distributing the said exhibit; A2 – A3 the exhibit in his hand, the PW4 said, in the defendant’s house he confronted the defendant with the “Ikede.” And the defendant told him he “had his facts” the defendant did not deny the publication at that stage. While admitting that the witness was a frequent visitor to his house, the defendant denied a visit from the PW4 on the 13/8/93.
The plaintiff believed that the defendant is the publisher of exhibits A1 – A3, she deposed that the defendant had previously made overtures to her, when he said to her “Kilonta Mofera” in Yoruba meaning what are you selling? (or offering, in the circumstance). I want to buy; (I am interested) she deposed that the defendant offered to install and pay for telephone receiver in her residence; and she had refused the offer. The plaintiff’s testimony suggests that the defendant is nursing malice towards her for refusing his overtures; and that the defendant assumed falsely that someone else had access to the plaintiff; this was responsible for the malicious publication about the plaintiff by the defendant; the purpose of which is to drive the principal away from the school. The defendant denied the imputation made by the plaintiff of the amorous overtures, and explained the telephone issue to another situation. Reading the records of proceeding, it is easy to read that throughout the proceedings, in the evidence of the defendant there is an expression of attempt at settlement of the dispute; and for the pacification of Mr. Osikoya by the elders as chieftain in the mosque to drop transaction against the defendant. There is the unexpressed purpose of plea to the plaintiff to drop the matter also but the defendant was not so persuaded despite the promise made by the elders who are named to persuade the defendant to withdraw the leaflets. As in the case of the PW4, the Bishop, the defendant said nobody spoke to him, but the defendant said, in his cross examination “I decided not to deny the content of the document because I am not the author.” It seems strange and unnatural that the defendant would find the need to persuade himself to deny the publication of the document when no one spoke to him about the documents. A Judge used to sifting evidence, and ascribing value to the evidence tendered before him will have no difficulty in distinguishing a lie from the truth. Admittedly in the face of the denial by the defendant of the publication of the exhibit in issue, what the court has to act upon, and rely on is the circumstantial evidence. Such circumstantial evidence that are available as to the publisher of exhibits A1 – A3 point to the defendant; and lead irresistibly to the fact that the defendant/appellant is the maker of the document. For example; if the day before child dies, a witch had threatened to cause the child’s death, the conclusions to be reached is obvious. The conclusion of the court below in identifying the publisher of the contents of the said Ikede is unimpeachable. The document written in Yoruba was intelligible to the people who read it and it is defamatory of the plaintiff. See Gidando v. Chief Imam of Ado Odo (1962) WNLR 122.
In his brief the appellant has urged this court to exercise its power under section 16 of the Court of Appeal Rules to reverse the decision of the court below. Having done so I am of the view, and so rule, that the conclusion of the court below is unassailable on the issues as to whether or not the words are defamatory and as to the defendant/appellant being the publisher of the offensive and defamatory contents of Ikede exhibits A1 – A3, which are libelous of the plaintiff/respondent. In the circumstances I find that the conclusion and decision of the court below flow from the evidence; and that in the face of the denial of the defendant, as the publisher of Ikede, the circumstantial evidence before the court lead any reasonable person to only one conclusion that is the said exhibits A1 – A3 were published by the defendant. As written above, the trial Judge is the master of the court on the facts before the court, and the Court of Appeal will be reluctant to interfere with the judgment where there has been a proper evaluation of the evidence. See Popoola v. Adeyemo (1992) 8 NWLR (Pt. 257) 1. (ii) Karian Olujinlo v. Bellow Adeagbo (1988) 2 NWLR (Pt. 75) page 238, 255 paragraph C and D. I therefore resolve against the appellants issue B, of the appellants issue A, of the respondent’s appeal.
Issue C of the appellant is also the sole issue formulated as a counter claim by the cross appellant; for a different relief. The appellant in his prayer seeks a reduction in the damages awarded by the court below, and in the cross appeal the respondent seeks an upward review of the damages awarded.
In his brief of argument, and in his reply of the appellant, the appellant submitted that the damages ordered by the court below are in the nature of aggravated damages which the respondent did not pray for. He submitted this by citing relevant legal authorities that the essence of success in a defamatory action is the vindication of the plaintiff’s claim, not a punishment of the defendant. The appellant urged the court to reduce the damages ordered, should his appeal not succeed, to the standard of general damages which is the claim of the plaintiff in the court below. The respondent submitted on the sole issue in the counter claim that the learned trial court had been conservative in the award of damages against the appellant for the award of one million naira for slander and two million naira for libel. The respondent submitted that the learned trial court had not allowed certain issues stated below to affect her mind in the assessment of damages against the defendant/appellant. These issues are, (1) the status of the plaintiff a highly reputed school principal, a moral crusader, a matron of all Catholic youths in Ijebu Ode diocese, a married woman of substance (with two children one of whom is a lawyer; the other an architectural student; a doctorate degree holder and a role model to teachers. (2) The fact that the publication took place on different days for the slander and libel;
and the geographical spread of the area where the expanded, defamation from Ijebu Ode, to Lagos, Benin Ibadan, Lokoja, Hammonton and London. (3) The absence of any retraction and apology and the lack of remorse by the defendant before and during the trial (4) the continuing sinking value of the naira and the acute inflation in the country. The appellant in furtherance of his submission on issue C, on quantum of damages submitted that a cumulative order of damages of N3 million naira smacks of order of aggravated damages and urges the court to reduce it. The appellant cited the recent case of Basorun v. Ogunlewe (2000) 1 NWLR (Pt. 640) 221 in which my learned brother Aderemi JCA, opined as follows, it must be remembered that the purpose of awarding damages in a libel case to a successful plaintiff is just to vindicate the good character or reputation. It must not be punitive or aggravated.” That may well be so; and the trend in modern times is to vindicate, the reputation of the plaintiff in consideration of the award of damages against the defendant. That trend however fails to consider the feelings of the plaintiff whose reputation and good name is unjustifiably assaulted and damaged by the defendant. Generally the order made for damages for defamation is generally in the discretion of the trial court. The assessment made does not depend on strict legal rules, but certain rules operate to guide the exercise of discretion of the court. See Bray v. Ford (1896) A.C 44 50; Ntukidem v. Oko (1986) 12 S.C 126 (ii) University of Lagos v. Aigoro (No.1) (1985) 1 NWLR (Pt. 1) 143;(1985) 1 S.C 265 at 271.
The discretion of the Judge are limited by usual caution of prudence and remoteness of damages in the award of damages. The award in libel; or even in slander is not limited to any specific pecuniary loss, but the damages resulting from an unjustifiable attack on the reputation of a victim may enure throughout the life of the victim. An appellate court would normally rehear the case of defamation in order to arrive at a just conclusion on the verdict of the court below; it is usually however not a reason to amend the award made by the trial court, however the court is not precluded from reviewing the damages awardable, if there is an appeal on the issue of damages. In this case; the appellant seeks a reduction in the award of damages and the respondent crossed appeal for an upward review of the damages awarded. In Zik’s Press Ltd. v. Alvan Ikoku (1951) 13 WACA 188, 189, the principles are stated to guide an appellate court on the quantum of damages awarded, and cautioned the Court of Appeal to be reluctant in the exercise of its power to reassess the damages awarded by the court below. In 1974, our Supreme Court in His Highness Uyo 1 v. Nigerian National Press Ltd. AND 2 Ors. (1974) 6 S.C 103, 105, cited the principles in Ziks Press to review upwardly the damages awarded in the court below. Fortified by the above, I have considered the issues raised by the cross appellant in his sole issue, that the respondent is a person of a high character who has been unjustifiably assaulted; it is evident from the testimony of the defendant that he is unrepentant at the damage he is adjudge to have caused to the respondent in his utterance in slander and has shown no remorse in the publication which assailed and caused pain to the respondent. It is evident that the court below disbelieved the denial of the defendant when the plaintiff testified that the defendant made overtures to the plaintiff, and offered in his utterance the words in Yoruba what do you have to sell, I want to buy; and the defendant offered to install telephone in the respondent’s room to “be able to speak to his concubine.” The malice generated in the mind of the defendant which is manifested by his action for the refusal of the plaintiff to accommodate his amorous advances is the certain preamble to the defamation of the plaintiff when he concluded apparently wrongly that what he could not have, was being enjoyed by another. This is the reason for the incessant complaints against the plaintiff over the school. The evidence of the plaintiff showed that the defendant severally went into the Comprehensive High School with a desire to impress the principal of his wealth when he traveled to the school in different cars. The demonstration did not avail him. It is an unfortunate behaviour and attitude of men folk in these climes that a woman exists merely to provide pleasure to the men folk. This attitude must be corrected. The plaintiff is shown by the evidence in court to be highly educated person in letters and a married woman who is singularly devoted to her calling which has been unjustifiably derided. Evidence exists that the plaintiff has remained unable to retain her position as principal in the said school directly owing to the slanderous assault on her reputation; and libelous insinuation and excessive effusions from the pen of the defendant, which is actuated by malice. I hold the view that the sum awarded as damages by the court below does not represent a sufficient compensation in vindication of the respondent’s loss in reputation and to assuage her pain. The naira has depreciated substantially; only the other day, another slide in naira was announced owing to inflation. In my view and I so rule, the sum of two million naira is appropriate damages for the slanderous words uttered by the appellant against the respondent; and three million naira for the libelous publication against the respondent by the appellant who published Ikede and its contents. In conclusion, the appeal fails in its entirety, the cross appeal succeeds I review upwardly the damages against the appellant to N5 million naira cumulatively.
There will be cost of N250,000 against the appellant to this appeal.
FRANCIS FEDODE TABAI, JCA:I agree.
OLUFUNLOLA OYELOLA ADEKEYE, JCA:I have the advantage of reading before now the judgment just delivered by my learned friend V. A. O. Omage, JCA. I agree with his reasoning and conclusion in respect of the appeal of the appellant, and the cross-appeal of the respondent/cross appellant.
Defamation is any imputation which may tend to lower the plaintiff in the estimation of right thinking members of the society generally and expose him to hatred, contempt or ridicule. In the case of libel and slander which is actionable per se – the publication of the matter containing defamatory imputation is actionable without proof of damages.
The law will presume that damages flows from such publication. The question as to whether the words complained of are in their natural and ordinary meaning defamatory is one of fact. The question whether or not the words are capable of conveying a defamatory meaning in the minds of reasonable persons in a particular case is for a Judge to decide upon the evidence before him. Sketch v. Ajagbemokeferi (1989) 1 NWLR (Pt. 100) page 678. Ciroma v. Ali (1999) 2 NWLR (Pt. 590) page 317.
The plaintiff in an action for defamation has the onus of proving six co-terminus ingredients which are-
(1) Publication of the offending words
(2) That the words complained of refer to the plaintiff.
(3) That the words are defamatory of the plaintiff.
(4) Publication to third parties.
(5) Falsity or lack of accuracy of the words complained of
(6) That there are no justifiable legal grounds for the publication of the words.
Concord Press (Nig) Ltd. v. Olutola (1999) 9 NWLR (Pt. 620) page 578.
“On the 6th of August 1993 the defendant at the Central Mosque Ijebu-Ode uttered these words concerning the plaintiff. “My brothers in Islam you should not believe what Alhaji Osikoya told you as the truth because he is telling a lie to cover up the principal of the school. Both of them are lovers, Alhaji Osikoya is allowing his lust to over ride his religious duty.”
On the 13th of August 1993 in and around the Ijebu-Ode Central Mosque, the defendant caused to be published of the plaintiff words which defamed the plaintiff in a handbill titled. “Ikede” which may mean notice or information – the following words:-
“This is to inform all brothers in Islam of the outcome of the meeting held after last Friday between myself and Alhaji Fatai Osikoya (Fisko) together with some muslim brothers and committee, on the issue of the shortcomings of the principal of Moslem Comprehensive High School. It is clear to Fatai Osikoya that all the allegations made are true, but he failed to do so because we have learned that the principal is his mistress.”
It is settled law that to impute unchastity in a married woman is actionable per se. In this circumstance the slanderous words were spoken of a woman of impeccable standing and career in the society, and one married with a good family. The learned trial Judge after putting the evidence of both parties on that imaginary scale – and to determine in whose favour the scale tilted, found in favour of the plaintiff/respondent/cross appellant.
Normally an appellate court will not interfere with the award of damages made by the lower court unless it is made under certain peculiar circumstances which include:-
(1) Whether the court acted under the
(2) Where it acted in disregard of principles.
(3) Where it has acted in misapprehension of facts.
(4) Where it has taken into account irrelevant matters and disregarded relevant matters.
(5) Where injustice will result if the appellate court did not act.
(6) Where the amount awarded is ridiculously law or ridiculously high that it must have been a whole erroneous estimate of the damages.
Ciroma v. Ali (1999) 2 NWLR (Pt. 590) page 317. U. B. N. Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt. 421) page 558.
I agree with my learned brother that the amount awarded by the lower court deserved to be reviewed upwards in view of the following-
(1) That the plaintiff/respondent/applicant is a person of high standing in the society.
(2) A person with good and promising career now shattered.
(3) A person of high moral virtues and a married woman.
(4) Unjustifiable attack on her reputation.
(5) Depreciation of the naira due to the galloping inflation.
The damages shall now be two million naira for the slanderous words uttered by the appellant against the respondent, and three million naira for the libelous publication by the appellant in Ikede. In unison with the leading judgment – the appeal fails while the cross appeal succeeds with N5,000,000.00 (five million naira) damages awarded against the appellant and cross respondent. I abide by the order on costs.
Cases referred to in the judgment
Ntukidem v. Oko (1986) 12 S.C 126.
Bakare v. Ishola (1959) WRNLR 106.
Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301.
Bamgbade v. Balogun (1994) 1 NWLR (Pt. 323) 718.
Basorun v. Ogunlewe (2000) 1 NWLR (Pt. 640) 221.
Bray v. Ford (1896) A.C 44.
Ciroma v. Ali (1999) 2 NWLR (Pt. 590) 317.
Concord Press (Nig) Ltd. v. Olutola (1999) 9 NWLR (Pt. 620) 578.
Gidando v. Chief Imam of Ado Odo (1962) WNLR 122.
Matani v. Daswani (1942) 8 WACA 216.
Olujinlo v. Adeagbo (1988) 2 NWLR (Pt. 75) 238.
Popoola v. Adeyemo (1992) 8 NWLR (Pt. 257) 1.
Sim v. Stretch (1936) 52 TLR 669; (1936) 2 All ER 1237.
Sketch Publishing Co. v. Ajagbemokeferi (1989) 1 NWLR (Pt. 100) 678.
Unilag v. Aigoro (No.1) (1985) 1 NWLR (Pt. 1) 143;(1985) 1 S.C 265.
Uyo 1 v. Nigerian National Press Ltd. (1974) 6 S.C 103.
Williams v. West African Pilot (1961) 1 All NLR 866.
Ziks Press Ltd. v. Ikoku (1951) 13 WACA 188.
Statutes referred to in the judgment
Court of Appeal Act Cap. 75, Laws of the Federation 1990 s. 16.
Rules of court referred to in the judgment
Court of Appeal Rules Or. 16.
Book referred to in the judgment
Gately on Libel and Slander 7th ed. para. 987.