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GUARDIAN PRESS LTD
COURT OF APPEAL
WEDNESDAY, 18TH JUNE, 2003
(2003) 1 NWLR (Pt.853)1
BEFORE THEIR LORDSHIPS:
PIUS OLAYIWOLA ADEREMI, J.C.A. (Presided and Read the Leading Judgment)
MUSA DATTIJO MUHAMMAD, J .C.A.
ABUBAKAR ABDUL-KADIR JEGA, J.C.A.
Chief G.O.K. Ajayi SAN with him, Elias Edu, ESQ. – For the Appellants
CONSTITUTIONAL LAW – Right to disseminate information -Nature of-Attitude of court thereto.
DEFAMATION – Defamatory action – Defence thereto – When none will avail the press.
DEFAMATION – Defamatory statement – Onus of proof of – On whom lies.
DEFAMATION – Libel- Defence of fair comment – When will avail a defendant – When it will not.
DEFAMATION– Libel- Defence of qualified privilege – Meaning and purport of-When will avail a defendant – When it will not – Relevant considerations.
ADEREMI, J.C.A. (Delivering the Leading Judgment):
The appeal is against the decision of the High Court of Lagos State, Lagos Judicial Division delivered on the 7th of October, 1999 in suit No. LD/256/86. The appellants who were the plaintiffs before that court had claimed against the respondents who were the defendants in the court below damages for libel published of and concerning them as follows:
“(I) N8 million (Eight million Naira) being damages for libel published of and concerning the 1st plaintiff.
(2) N3,105,000.00 (Three million one hundred and five thousand Naira) being damages for libel published of and concerning the 2nd plaintiff.
(3) An order of injunction restraining the defendants, their servants and/or agents from further publishing the said and/or similar words of the plaintiffs.
The alleged libellous words said to have been falsely and maliciously published of and concerning the plaintiffs (now the appellants) by the 1st, 2nd and 3rd defendants (respondents) in the issue of “THE GUARDIAN” newspaper dated the 2nd of September, 1985 at pages 1 and 12 under the headline “COMPANIES REGISTRY IN SHAMBLES” in the way of their profession and office and of their conduct therein are as follows:-
“The Guardian discovered that agents touts and clerical staff and sometimes highly placed officials of the registry have been doing brisk illegal business at the Registry and Nepotism has also featured in the list of companies (sic) being levelled at the Registry. It is common knowledge at the Registry that the husband of one of the top most officials at the Registry is a lawyer with an office in the business centre of Lagos Island. It is said that the husband also registers companies for clients and the fact of his wife being a top official at the Registrar could be an exploitable coincidence. The Guardian saw a complimentary card which the lawyer- husband had minuted to his wife requesting that a client be helped to register a company.”
In the issue of “THE GUARDIAN” newspaper of 6th October, 1985, the 1st, 2nd and 4th defendants/respondents were said to have falsely and maliciously written, printed and published of and concerning the 1st plaintiff/appellant in the way of her profession and office and of her conduct therein the following words:-
“Indeed as rightly pointed out in your report, the situation has been further compounded by bare-faced nepotism and utter insensitivity in high quarters” and
“As a first step, the inept leadership at the Registry c; must be changed forthwith in order to give office a fresh lease of life. Secondly a thorough investigation must be set in motion to probe the allegations of corruption, graft and nepotism said to pervade the place.”
Again in paragraph 11 of the amended statement of claim; the plaintiffs/appellants have credited the 1st, 2nd and 3rd defendants/ respondents as printing and publishing of the 1st plaintiff/appellant and of her profession and office and conduct in the issue of “THE GUARDIAN” newspaper of the 9th of December, 1985 the following words:-
“The Registry was closed down a day after the Guardian On Sunday ,carried a front-page report detailing the graft, corruption, nepotism and the storage cum retrieval (sic) problems said to be hampering efficiency and fair-play at the Registry. One of the immediate steps taken to re- organise it was the retirement of the former Registrar, Mrs. A. E. Akomolafe.”
Pleadings, in terms of amended statement of claim, statement of defence of the 1st, 2nd and 3rd defendants, the amended statement of the 4th defendant and the amended reply to the defence were filed and exchanged between the parties. Evidence was called by both sides and after taking the addresses of their respective counsel, the learned trial Judge, in a reserved judgment delivered on the 7th of October, 1999 upheld the defences raised by the defendants/ respondents and consequently dismissed the suit in its entirety.
Being dissatisfied with the said judgment, the plaintiffs have appealed therefrom to this court upon a notice of appeal which carries four grounds.
With the leave of the court four additional grounds of appeal were added. With the leave of court the appellants filed an amended brief of argument on the 9th of January, 2003 while the respondents filed a joint brief of argument on the 18th of February, 2003. Two issues are distilled by the appellants as arising for determination by this court and as set out in the amended brief of the appellants they are in the following terms:-
(1) Was the learned trial Judge not in error in failing to hold that the charge of nepotism levelled against the plaintiffs was defamatory of the plaintiffs?
(2) Was the learned trial Judge right in holding that the publications complained of did not refer to the plaintiffs!
While accepting, in substance, the first issue formulated by the appellants, the respondents have reframed same in their brief of argument in the following words:-
(1) Whether the learned trial Judge was right in holding that the charge of nepotism levelled against the plaintiffs was not defamatory?
(2) Whether or not the articles are libellous?
When this appeal came before us for argument on the 8th of April, 2003 Chief G. O. K. Ajayi, SAN learned counsel for the appellant’s adopted his clients’ amended brief of argument filed on the 9th 01 January, 2003 and by way of highlighting the salient parts of the arguments contained in the said amended appellants’ brief, submitted that the facts before the court do not support the allegation 01 nepotism and that the findings of the learned trial Judge do not support the defence put up by the defendants asserting their right to criticise in the interest of the public he urged that the appeal be allowed. Mr. T. E. Williams, learned counsel for the respondents while adopting his clients afore-mentioned brief of argument by way of emphasis, learned counsel, after reviewing the evidence on record, submitted that the learned trial Judge rightly upheld the submissions of their counsel on the defence put up as, according to him, the plaintiffs/appellants were unable to prove that the publication was actuated by malice. He finally urged that the appeal be dismissed.
I shall start the discourse of this appeal by identifying what was the case put up by the plaintiffs/appellants and the defence raised by the defendants/respondents in their respective pleadings. From the reading of the amended statement of claim, the case of the appellants is that the extracts from the different issues of the “THE GUARDIAN” which I have reproduced above paint the picture of the 1st appellant as a person who is guilty of fraudulent and illegal practices in the performance of her duties and consequently she is grossly incompetent in the performance of her duties, and as regards the 2nd appellant that he contributed to the improprieties allegedly going on in the Companies Registry where the 1st appellant was at the time material to this suit, its Registrar. The 1st, 2nd and 3rd respondents while admitting publishing the alleged offensive words in the issues of “The Guardian” newspaper pleaded truth, qualified privilege and constitutional right. The 4th respondent, a legal practitioner pleaded fair comment as a defence. Evidence was called by the parties in proof of the averments in their different pleadings. As I have said the learned trial Judge after taking the addresses of the counsel sequel to the completion of evidence, dismissed the plaintiffs/appellants’ case in its entirety. In concluding the judgment the learned trial Judge reasoned thus:-
“The words in all the articles complained of are fair comment on the short comings and inadequate (sic) of the Companies Registry. Both the 1st and 2nd plaintiffs appear to agree with the above PWI said ‘LAWYERS stampeded the Registry’.
While PW2 said exhibit G. contains the truth of ‘THE LONG BAD RECORD OF THE COMPANY’S’. The Guardian Newspaper is a national daily with wide circulation. It has a constitutional right to express opinion and comment on activities of functionaries or officials of government provided such articles when written are true and reflect the correct state of affairs.
The newspaper supra also has a right to comment upon matters of public interest. The articles complained of were written to inform the reading public of the state of the Company’s Registry and the reading public would definitely have an interest in such information.
All the witnesses gave evidence in a truthful manner. Their evidence was in support of their pleadings. The articles complained of were not defamatory of the plaintiff since they do not refer directly to her or her husband but to the Company’s Registry, which the plaintiffs also admit, was in a hopeless state. The defendants in exercising their constitutional right to publish, published information on a matter of public interest. The defences pleaded by the defendants are hereby upheld. Plaintiffs’ claim is accordingly dismissed.”
From the pleadings, the fact of publication of the alleged offensive words by the defendants is not in dispute. As I have said the defences put up by the defendants are fair comment, qualified privilege and constitutional right to publish such words. I have had a very careful study of issue No.1 on each of the briefs of the appellants and the respondents; to my mind, they are substantially the same.
On issue No.1 which questions the rationale behind the failure of the learned trial Judge to hold that upon the evidence before him the charge of nepotism levelled against the plaintiffs/appellants was defamatory of them, the appellants, in their brief of argument reviewed the evidence of PW1, PW2 and PW3 and submitted that the learned trial Judge was wrong not to have held that the charge of nepotism was as against the plaintiffs/appellants defamatory. They urged that the first issue be resolved in their favour. To counter this argument, the respondents, in their brief of argument submitted that the appellants are in error to hold that the charge of nepotism must be libellous unless the defendants are able to show that PW3 actually delivered the card on which the 2nd plaintiff/appellant minuted to the 1st plaintiff/appellant and that PW3 was given preferential treatment: to them what need be shown is that the 2nd plaintiff minuted on his card and he handed it over to a third party with a view to securing some kind of advantage from the Companies Registrar who was at that material time his wife. They also referred to the passage lifted from the body of the judgment by the appellants in their brief of argument which passage reads:
“Going by the definition of nepotism the article where nepotism is mentioned are thus in the circumstances. It is a trite law that words in the publication complained of in a libel case must be construed as a whole.”
(Italics mine for emphasis) .
It is clear that the first part of the above quotation is incomplete; indeed, it does not make sense. Both the appellants and the respondents realise, in their briefs, that a word was missing. The appellants had argued that the word “thus” as used by the learned trial Judge should have been “true”. On the other hand, the respondents have contended, through their brief of argument that the missing word after “thus” is “FAIR”. In order to know what exactly was operative in the mind of the learned trial Judge in his summation one has to go a bit further in the reading of the judgment. In the second to the last paragraph of the judgment the learned trial Judge had reasoned:
“The words in all the articles complained of are fair comments on the short comings and inadequacies of the Companies Registry.”
When the latter reasoning of the learned trial Judge which I have quoted immediately supra is read in conjunction with the reasoning earlier quoted I have no doubt that the sentence intended by the learned trial Judge is:
“Going by the definition of nepotism the article where nepotism is mentioned and the comment are thus in the circumstances fail:”
I therefore agree with the submission of the respondents as contained in their brief. In effect, all the learned trial Judge was saying is that the comment was fair.
As I have said one of the defences put up by the defendants/ respondents is fair comment which in practical term is a conglomeration of critical opinions expressed on matters of public interest such as the criticism of government and its functionaries. I go further to say that law protects fair comment and criticism on matters which have become public property. To avail himself of the defence of fair comment, a defendant must ensure that the facts are correctly and fairly stated or that the premises upon which the comment is based is the whole truth of the matter. If the basic facts upon which the plea of fair comment is predicated are not true, then that defence is not open to the defendant see (1) African Newspapers of Nigeria Ltd. v. Coker (1973) 5 SC 257 and (2) Bardi AND Anol: v. Maurice (1954) 14 WACA 414. Then, what is the evidence before the trial Judge? The first PW – Mrs. Eva Anike Akomolafe – the first appellant while testifying before the trial Judge said:
“The top most officer in the Companies Registry is the Registrar of Companies and that is the office I was holding … My husband minuted on his complimentary card telling me to help a colleague, but I never got the card.”
When cross-examined, she said and I quoted:-
“I do not see anything wrong with helping senior members of the BAR.”
PW2 – Chief Agboola Akomolafe the husband of PW2 – the
Companies Registrar while testifying said:-
“I gave complimentary card to Mr. Ganiyu Shokoya, a colleague. I wrote on the card “bearer is a colleague” Mr. O. Shokoya complained that there was an error on the Certification of Incorporation and he wanted it corrected.”
When cross-examined, PW2 said:-
“At the time my wife took over and up till now the Registry still has a bad reputation …
Exhibit “0” contains the truth of the long bad record of the Companies Registry since (1985).”
PW3 – Ganiyu Oladapo Shokoya – the recipient of the card on which PW2 minuted for onward transmission to PWI – the Companies Registrar said:-
“… the card was given to me by the 2nd plaintiff for the 1st plaintiff at the writing at the back of was ‘bearer is a colleague’ that was all on the card. I. took the card to the Companies Registry where 1st plaintiff was Registrar. I gave the card to the messenger of 1st plaintiff to be given to her.”
When cross-examined, the witness said:- “I got 2nd plaintiff’s card because I had a document I wanted to collect and it was not easy to get to the Registrar so I approached him for his card. The card was to enable me gain entrance to the Registrar ( sic).
Despite the card I waited for about two hours… I would say that the Companies Registry at the time was very busy.”
From the evidence before the trial Judge it is not in dispute that PW2 minuted on his complimentary card which was intended to be handed over to PWI for the latter to render some favour to PW3. PW2 admitted that at the time his wife (PWl) took over the Companies Registry as its Registrar and up till the time he was giving evidence, the Registry still had a bad reputation. PW3 had also said that the Registry was very busy at that material time. Companies Registry is a public institution that must and always attracts public attention. I have had a calm examination of the alleged offensive article and relating same to the evidence before the trial Judge it is my view that the comment therein contained is founded on true facts and it is equally fair. The defendants/respondents have satisfied the demand of the law which requires a defendant to prove the truth of a defamatory statement rather than the plaintiff its untruth. Before I am done with issue No.1, I wish to say some few words about first and second respondents – the press. In Gomes v. Punch (Nig.) Ltd. AND Anal: (1999) 5 NWLR (Pt. 602) 303 I said of the alienable right of the press to disseminate information to members of the public, a right that must not be whittled down by legal or linguistic refinements; I observed at pages 311 and 312 of the judgment thus:-
“… I should here say that it is much to be desired that newspapers, television or news media generally should be free to bring to the notice of the public any matter of public interest or concern. But in order to be deserving of that freedom, the press must show itself worthy of it. A free press cannot be deserving of that appellation unless it is a responsible press. The power of the press is enormous. It must not abuse that power. If a newspaper should act irresponsibly then it forfeits any claim to the defence of qualified privilege. The press, in a society that upholds the rule of law as a way of life, has a solemn duty to feed the society with true facts and honest comments. That crucial function, in my view, tantamounts to moulding, positively, public opinion.”
The above dictum is still very much apposite here. Perhaps, however, I should go further by saying that a press that acts irresponsibly will lose its claim to any defence: which includes the defence of fair -. comment. In the instant case the criticism of the Companies Registry and its functionary and by extension, the second appellant who aided the launching of the criticism was in the public interest; the respondents have not behaved irresponsibly. The second appellant’s endorsement of his complimentary card intended for onward transmission to the first appellant, by its contents, was to influence a public officer (the first appellant) to show favour on someone, and when put against the background of what was prevailing in the Registry then no case of libel could be founded against the respondents. Consequently, issue No.1 on the appellants’ brief of argument is hereby resolved against them; while I answer issue No. 1 on the respondents’ brief of argument in the affirmative.
Issue No.2 on the appellants’ brief is worded differently from the wordings of issue No.2 on the respondents’ brief. That issue as conceived by the appellants, is in the following terms: as I have earlier set it supra:
“Was the learned trial Judge right in holding that the words complained of did not refer to the plaintiffs.”
Again, as I have reproduced above, the respondents set the second issue for determination in the following terms:
“Whether or not the articles are libellous?”
Flowing from what I have been saying supra, it cannot be correct to say that the learned trial Judge held that the words complained of did not refer to the plaintiffs/appellants. Apart from the defence of fair comment put up by the defendants/respondents they have also raised the defence of qualified privilege while not denying that they made the comment, they further say that the comment was made on an occasion that was privileged. By the defence of qualified privilege, a defendant is saying no more than that even though the publication complained of by the plaintiff may be defamatory of him however, since it was published to the generality of the public who, the law recognises as having a corresponding interest to receive it from the defendant that has a standing duty to publish it on account of public policy; such a defendant cannot incur any legal liability so long as the publication has not been actuated by malice. This principle that I have just set out supra is very well explained in illuminating words by Lord Atkinson in Adam v. Ward (1917) AC 309 when at page 334 he observed:-
“A privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it.”
When a defence of this nature is put up, it practically means that public convenience or interest must be preferred to private convenience or interest in the dissemination of information which is of paramount interest and benefit to the public, but the dissemination must be without malice. From what I have said in the treatment of issue No.1, the articles cannot, in law, be said to be libellous. I therefore resolve issue No.2 in the appellants’ brief against them while I answer issue No.2 on the respondents by saying that they are not libellous.
In conclusion, having regard to all I have been saying the only conclusion I can arrive at and which I now arrive at is that this appeal is unmeritorious. It is accordingly dismissed while I uphold the judgment of the trial Judge. The respondents are entitled to the cost of this appeal which I assess and fix in their favour at N7,500.00 against the appellants.
I am adding a few words purely for the sake of emphasis.
The appellants were aggrieved over words published by the respondents.
Appellants felt the words had libelled them. They went to the lower court to right the wrong done to them. Their claim has been reproduced in the lead judgment. So too the publications they considered libellous of them. Respondents said even where the published words are conceded to be libellous, they represented fair comment on a matter of public concern. After all, they never lied in their comments.
At the end of pleadings;, the court heard the case of either side. Based on the evidence led before it, the court upheld the position of the respondents. The action of the appellants was dismissed. That is why they are here on appeal.
Appellants have argued that the lower court’s decision cannot be said to have evolved from the evidence before the court.
It is trite that the duty to evaluate evidence primarily belongs to the trial court. The appeal court only interferes with the lower court’s assessment of evidence where it is shown that the conclusion arrived at after such assessment is perverse. Appellate courts are always very slow to interfere with a trial court’s finding of fact. The latter rather than the former had the opportunity of hearing and observing the witnesses in the course of their testimony. See Adeleke v. Iyanda (2001) 13 NWLR (Pt. 729) 1 SC see and Nnorodim v. Ezeani (2001) 5 NWLR (Pt. 706) 203 SC.
My learned brother has recounted the evidence led at lower court in the lead judgment. I agree with him that there is nothing perverse in the lower court’s findings that the respondents had spoken the truth and had the right to make the comments which appellants considered libellous. The comments are fair. Respondents are eminently qualified as publishers to utter the words they did. Because the words have also been shown to be true, respondents are said to be privileged and not liable for words that would have otherwise been libellous. I said this much in N.N.N. Ltd. v. Adebekun (2003) Vol. 9 WRN 59 at 73. I say it again here. This is because that is the law. I have no cause to say otherwise now.
For the foregoing and more so for the detailed reasons advanced in the lead judgment, I also adjudge this appeal unmeritorious. I join my brother in dismissing the appeal. I abide by all the consequential orders contained in the lead judgment.
JEGA, J.C.A.: I agree entirely with the judgment of my learned brother, Aderemi, JCA just delivered. For reasons which he has given, I also dismiss the appeal with N7,500.00 costs to the respondents against the appellants.
Cases Referred to in the Judgment:
Adam v. Ward (1917) AC 309
Adeleke v. Iyanda (2001) 13 NWLR (Pt. 729) 1
African Newspapers of Nigeria Ltd. v. Coker (1973) 5 SC 257
Bardi v. Maurice (1954) 14 WACA 414
Gomes v. Punch (Nig.) Ltd. (1999) 5 NWLR (Pt. 602) 303
N.N.N. Ltd. v. Adebekun (2003) Vol. 9 WRN 59
Nnorodim v. Ezeani (2001) 5 NWLR (Pt. 706) 203