CORAM

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STEPHEN JONAH ADAH

HAMMA AKAWU BARKA

DANLAMI ZAMA SENCHI

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PARTIES

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VANGUARD MEDIA LTD APPELLANTS

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BRIGHTWATERS ENERGY LTD. & ANOR RESPONDENTS

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AREA(S) OF LAW

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ACTION, APPEAL, COURT, TORT, JURISDICTION EVIDENCE, PRACTICE AND PROCEDURE,

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SUMMARY OF FACTS

The Claimants, now Respondents, by an amended writ and statement of claim filed on the 2nd day of August, 2017 sought for the following reliefs against the Defendant, now Appellant:
i.A declaration that the advertorial published of and concerning the Claimants and the Claimants’ business, which advertorial was in large and prominent full page type in a conspicuous place on page 39 of Vol. 25, No. 63319 in the vanguard Newspaper of Monday, 26th June, 2017, and was read and seen by subscribers of Vanguard Newspaper and others who purchased and/or read the newspaper, is libelous of the Claimants and a defamation of the Claimants.
ii.The sum of N 1,237,374,336.6 (One Billion, Two Hundred and Thirty-seven Million, Three Hundred and Seventy-four Thousand, three Hundred and Thirty-six Naira Forty Kobo) only as special damages for the losses and damages incurred by the Claimants as a result of the Defendant’s defamatory publication.
iii.The sum of Ten Billion Naira (N10,000,000,000.00) as general damages for the defamation of the Claimants’ reputation, character, goodwill and business by reason of the Defendant’s publication of an advertorial captioned “AMCON VS UNION WORKERS OF WILBROS NIGERIA: MR. PRESIDENT, SENATE AND HOUSE OF REPRESENTATIVES, PLEASE SAVE US AND COME TO OUR RESCURE” on Monday, 26th June, 2017, on page 39 of Vol. 25, No. 63319 of the ‘Vanguard Newspaper’ a nationally and international circulated newspaper including Abuja within the jurisdiction of this Court.
iv.A perpetual injunction restraining the Defendant by itself or through its agents, or through third parties, proxies or servants howsoever so described from further publication, writing, printing, circulating or causing to be written, printed, circulated or otherwise published any further scandalous defamatory statements of or concerning the Claimants.
v.A written apology from the Defendants, and a retraction of the advertorial of Monday, 26th June, 2017, on page 39 of Vol. 25, No. 63319 of the ‘Vanguard Newspaper’ captioned “AMCON VS UNION WORKERS OF WILBROS NIGERIA: MR. PRESIDENT, SENATE AND HOUSE OF REPRESENTATIVES, PLEASE SAVE US AND COME TO OUR RESCURE” in Five (5) National Daily Newspapers with similar coverage to the Vanguard Newspaper (With full page devoted for the retraction in each of the Five (5) newspapers).
vi.The cost of this suit including attorney fees in the sum of US $150, 000.00 (One hundred and Fifty Thousand US Dollars) or N54, 000,000.00 (Fifty-Four Million Naira) only.
Upon service of the amended writ of summons, statement of claim and all other processes, the Appellant filed a statement of defense also amended with the leave of Court on the 14th day of June, 2018, wherein they denied the claim by the Claimants and also raised the defense of qualified privilege. Issues having been joined, trial proper commenced with the 2nd Respondent Scott Gregory, testifying as well as the 1st Respondent, tendering several documents including the said defamatory advertorial of the 26th of June, 2017 marked as Exhibit 5, and sundry other documents.
At the close of trial, and adoption of written addresses by the learned counsel representing the parties, the trial Court considered the totality of the case and entered judgment on 22nd of November, 2019 in favor of the Claimants/Respondents and amongst other reliefs, awarded the sum of N10,000,000.00 (Ten Million Naira) only as general damages against the Defendant for the defamation of the Claimant’s reputation, character, goodwill and business.
The Appellant was unhappy with the decision rendered by the lower Court, and in showing his displeasure filed a notice of appeal on the 6th day of December, 2019

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HELD

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Appeal allowed, Cross-appeal dismissed

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ISSUES

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i.Whether the trial Court has the requisite jurisdiction to hear and determine this case as presently constituted? ii.Whether the learned trial judge was right when he held that the appellant defamed the respondents. iii.Whether the learned trial judge was right when he found for the respondents in the absence of a third party’s evidence. iv.Whether the defense of qualified privilege availed the appellant? v.Whether the trial Court properly evaluated the evidence and issues before it viz-a-viz the exhibits. vi.Whether the learned trial Court was right to have awarded the sum of N10,000,000.00 (Ten Million Naira) only as general damages.

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RATIONES DECIDENDI

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AWARD OF COST – POSITION OF THE LAW ON GRANT OF COSTS OF ACTION/SOLICITORS FEES

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“On, whether the cross-appellants were entitled to costs of the action including the solicitors’ fees, the law is certain that for a claim for solicitor’s fees not borne or not being part of the claimant’s cause of action, such a claim is not grantable. The cases of Michael vs. Access Bank (2017) LPELR – 41981 (CA) and Chris Baywood Ibe & Anor vs. Bonum Nigeria Ltd (2019) LPELR cited by the learned counsel for the cross-respondent is apt on the issue amongst others. The cross-appellant is however correct in asserting that a successful party is entitled to be indemnified for the cost of litigation as stated in Naude & Ors vs. Simon (2013) LPELR-20491 (CA). The claim for solicitor’s fees must however be pleaded and proved in the nature of special damages.” – Per Barka, JCA

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EVALUATION OF EVIDENCE – DUTY OF TRIAL COURT AS REGARDS EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE THERETO – WHAT EVALUATION OF EVIDENCE ENTAILS

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“I totally agree with the legal position that the evaluation of evidence is principally the duty of a Court of trial, and the Court sitting on appeal rarely interferes with such evaluation and finding unless found to be perverse. It is the law that evaluation of evidence entails the assessment of the evidence adduced, and the ascription of evidential value thereto. It is for the Court to peruse the evidence led, appraise the said evidence and to see whether there is evidence on which the trial Court could have based its findings thereon. See Sule Anyegwu & Anor vs. Aidoko Onuche (2009) 3 NWLR (pt. 1129) 659, Ecobank Plc vs. Mohammed (2014) LPELR – 23990 (CA), Buhari vs. INEC (2008) LPELR – 814 (SC).” – Per Barka, JCA

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TORT OF DEFAMATION – WHEN THE DEFENCE OF QUALIFIED PRIVILEGE WILL AVAIL A PARTY

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i.The alleged publication is an advertorial concerning a government agency.
ii.The Asset Management Corporation of Nigeria (AMCON) is a Federal Government Agency saddled with among others other things the responsibility of taking over the management of ailing or dead corporation and company in order to resuscitate or revive it.
iii.The affairs and activities of Asset Management Corporation of Nigeria are of public interest.
iv.The alleged advertorial was also addressed to the office of the Federal Republic of Nigeria which are public offices and institutions with the caption, “Amcon vs. Union Workers, Wilbros Nigeria: Mr. President, Senate and House of Representatives, please save us and come to our rescue”.
v.The public is interested in knowing how the Asset Management Corporation of Nigeria conducts itself and carries out its activities.
vi.The defendant is a media outfit with a duty of disseminating information of public interest.
vii.The management of Choba and Isiodu yards in Rivers State is of public interest and the public is interested in knowing what is being done and how it is managed.
viii.The alleged advertorial was published under a sense of duty and without malice towards the claimants or anybody.
ix.The defendant investigated the story diligently and thoroughly before publishing same. To destroy the defense, the claimant is under a duty to prove that the publication was maliciously so published.
See Inland Bank vs. F & S (2010) 15 NWLR (Pt. 1216) 395. The question for resolution is whether the claimant before the Court was able to show in the circumstance that the publication was done or propelled by malice on the part of the defendants. The fact that a newspaper has a duty to disseminate information to the general public is indisputable. See African Newspapers (Nig.) Plc vs. Useni (2015) 3 NWLR (pt. 464) 486. The right to comment freely on matters of public interest has been held to be one of the fundamental rights of free speech. See Din vs. African Newspapers Ltd (1990) 3 NWLR (pt. 139) 392 @ 408. Even though the claimants failed to rebut or file a reply to the particulars of malice, contended just like the lower Court that the publication was reckless and false with the intent to harm. In the same vein the lower Court was of the view that the refusal of AMCON to approve certain payments was not induced by the publication being complained upon. The term Malice was given meaning in the case of Eromosele vs. Wermer & Ors. (2014) LPELR – 22183 (CA)., as meaning an act intentionally done without just cause, the desire to harm, or hatred for. Making use of the occasion for some indirect purpose or a wrong motive. See Emeagwara vs. Star Printing & Publishing Co. Ltd & Ors. (2000) LPELR – 1122 (SC). The fact that the publication published was false or reckless as the lower Court termed it, once malice is not imputed to the application, the defense of privileged information will avail the defendant. To defeat that defense there must be evidence that even though the defendant knew of the falsity of the publication, yet went ahead to publish the same for reasons which are meant to harm the claimant. I have carefully weighed all the circumstance in the case at hand, and do with humility disagree with the lower Court that the publication was not privileged in the circumstance. The appellant in this case has a constitutional duty of disseminating information, which duty must never be hampered or stifled, as to do so would spell the end of the freedom of the press. I remember with nostalgia, the days of decree no. 4. That era must never return and I resolve this issue in favor of the appellant.” – Per Barka, JCA.

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TORT OF DEFAMATION – WHETHER PROOF OF PUBLICATION AND EVIDENCE OF REACTION OF A THIRD PARTY TO SAME IS ESSENTIAL IN PROVING THE TORT OF LIBEL

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“The case of Gomes vs. Punch (1999) 5 NWLR (Pt. 602) 303 @ 311 per Aderemi JCA, agrees with the general legal view that the defense of qualified privilege avails mostly the media formations, being the mouth piece of the public as well as the public informants. Therefore, where a statement is honestly published without an unjust motive the defense of qualified privilege can avail the media outfit or person. In the case at hand, it is evident that appellant raised the defense of qualified privilege, and gave particulars of same in the following manner:

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TORT OF DEFAMATION – WHETHER PROOF OF PUBLICATION AND EVIDENCE OF REACTION OF A THIRD PARTY TO SAME IS ESSENTIAL IN PROVING THE TORT OF LIBEL

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“Dr. Frank Chude, the learned counsel for the appellant argued, and correctly too in my view that publication is an essential element in proving the tort of libel, and that which gives the Court the jurisdiction determining the suit. Further still, it is where the publication is published and read by a third party that determines the territorial jurisdiction of the Court. See also Sketch Publishing Co. Ltd vs. Ajagbemokeferi (1989) 1 NWLR (pt. 100) 678, Iloabachie vs. Ilobachie (2005) ALL FWLR (Pt. 272) 223, Guardian Newspapers Ltd vs. Ajeh (2011) 10 NWLR (Pt. 1256) 574 @ 588, amongst many other cases. This is so because in the consideration of whether the words complained of are defamatory, the language employed and the nature of the claim allows the Court to infer whether reasonable men would come to the conclusion that the words convey imputations suggested by the plaintiff, and the effect on the person to whom it was published. See CSSD Farms Ltd vs. Schlumberger (supra) @ 205, Sketch Publishing Company Ltd vs. Ajagbemokeferi (1989) 1NWLR (pt. 100) 678, Okolo vs. Midwest Newspaper Corporation (1977) 1SC 33, UBA Plc vs. Davies (2011) 11 NWLR (1259) 591 @ 624, per Hussain Muktar JCA. It flows therefrom as posited that for a plaintiff to succeed in a case of libel, there must be proof by evidence of the reaction of a third party after reading the published material or publication, since a person’s reputation is gauged on the estimation of others on him as against what he thinks his reputation is. See Nsirim vs. Nsirim (1990) SCNJ 174 @ 184, Iwueke vs. Imo Broadcasting Corporation (2005) 17 NWLR (pt. 955) 447 @ 482. This Court had held in the case of Popoola vs. Edobor (2017) LPELR-42539 (CA) per Fasanmi JCA that:
“In defamation matters, the mere making of the defamatory statement to the plaintiff does not constitute a cause of action as the defamatory statement must be published to a third party. The reason for this is that defamation does not consist in what the plaintiff thinks of himself, but of the opinion that others hold of him. Thus, one basic ingredient of defamation whether libel or slander is publication. In other words, the plaintiff is under a burden to prove that the defamatory statement was published to a third party and the law requires that the third party must not only be named but must be clearly identifiable and identified. Once a publication is not clearly pleaded and proved, the case is bound to collapse.”
See also Giwa vs. Ajayi & Ors. (1992) LPELR – 14922 (CA). The Apex Court on the issue, gave its stamp of finality to the legal principle, having held that:
“For a plaintiff to succeed in libel, there must be proof by evidence of a third party of the effect of the alleged publication on him i.e. the reaction of a third party to the publication. Afterwards, libel consists in the publication by the respondent, by means of printing, writing, pictures or the like signs of a matter defamatory to the plaintiff.”
See Iwueke vs. Imo Broadcasting Corporation (2005) 17 NWLR (pt. 955) 447 @ 482, (2005) LPELR – 1567 (SC) per Ogbuagu JSC. See also Daily Telegraph Publishing Ltd vs. Ekeuwei (2019) 14 NWLR (pt. 1693). The burden of establishing the fact that he was defamed is that of the plaintiff, failing which his case collapses. In the case at hand, the respondent through the 2nd respondent gave evidence to the fact that the advertorial carried in the appellants newspaper was widely circulated everywhere in the country, but failed to lead evidence pertaining to whether a third party, (especially AMCON in this case) read the said advertorial, and his reaction to the contents with regards to the reputation of the respondents. Parties appear to be on common ground having stated that Exhibit 5, the advertorial was published by the appellants. The question thereafter is whether Exhibit 5, is defamatory of the respondents? The lower Court attempted the question from pages 526 – 530 of the record, referred to the evidence of the Pw1 on the issue in arriving at the conclusion that respondents were indeed defamed. Having studied the glaring facts placed before the lower Court, my humble view is that that reasoning by the lower Court and indeed the conclusion drawn therefrom, cannot be supported having run contrary to the settled principles of law. If I may ask, how did the lower Court come to that conclusion, since there was no evidence was proffered to that effect by the claimants, and would it be right for the Court to speculate in its findings, contrary to the legal position that Courts do not act on speculations, let alone conjectures that are ambiguously speculative. See Martins vs. The State (2019) LPELR – 48889 (SC), Dalfam Nig. Ltd vs. Okaku International Ltd (2002) FWLR (pt. 96) 501 @ 541, Oyinloye vs. Esinkin (1999) 10 NWLR (Pt. 624) 540. It has been conceded even by the respondents, that no third party was called to give evidence. The respondent relied on the Court of appeal case of Asheik vs. M.T.N Nig. Ltd (2010) 15 NWLR (pt. 1215) 114 @ 164 per Odili JCA as he then was, that where words in their ordinary sense are defamatory, the plaintiff need no more than that they were published, and therefore need not call witnesses to prove what they understood by the words, but that the relevant question would be whether reasonable people understood the words in their defamatory sense. This Court relying on decided cases, held that:
“In Nigeria as in England no civil action will lie for damages for defamation unless the defamatory matter has been published. In law, publication of a defamatory matter occurs or is said to have taken place when it is communicated to anyone other than the person defamed. It is thus the making known of the defamatory matter after it has been written or made to some other person other than the person of whom it was written or uttered that constitutes publication in the tort of defamation.”
See Mr. Olusola A.B. George-Olumoroti vs. Mr. Ide O. Owodiong-Idemeko (2017) LPELR – 51546 (CA). This is against the established legal position that the plaintiff is duty bound proving that the words complained of conveyed a defamatory meaning to whom they were published. See The Sketch Publishing Company Ltd & Anor vs. Alh. Azeez Ajagbemokeferi (1989) LPELR – 3207 (SC). The reliance on the cases of SOA Popoola vs. Mr. Ebenezer Edobor & Ors (2017) LPELR – 42539, Unity Bank Plc vs. Mr. Akinlabi S. Oluwafemi (2006) LPELR – 9847 (CA), Nigerian Westminister Dredging vs. Tunde Smooth & Anor (2011) LPELR – 4619 (CA), all to the effect that the defamatory statement must be published to a third party translated that the case relied upon by the respondent is no more good law. To buttress this fact further is the finding of the lower Court, having stated that: “… However going by the content of Exhibit 93, the refusal to approve the expenses particularized at paragraph 23 of the amended statement of claim and paragraph 24 of PW1’s statement on oath was not as a result of the defamatory publication against the claimants… It is clear as crystal that the refusal by AMCON to approve payments for the purported expenses incurred by the claimants had no nexus with the defamatory publication. I so hold”,
clearly depicts the fact that the lower Court only speculated in arriving at its conclusion that the said publication was defamatory of the respondent. This finding evidently has no evidential support and cannot be allowed to stand. I agree with the learned counsel for the appellant relying on the recent case of Daily Telegraph Publishing Ltd vs. Ekeuwei (2019) 14 NWLR (Pt. 1693), that the evidence of a third party to whom the defamatory statement is published concerning the plaintiff is a necessary component in proving the tort of defamation. See also Iwueke vs. Imo Broadcasting Corporation (2005) 17 NWLR (pt. 955) 447 @ 482. The presence of such a third party who is expected to testify on the publication made and the effect of such publication on him or his estimation of the state or status of the person alleged to have been defamed is material.
In the case at hand, the plaintiff before the lower Court failed to call any witness apart from the 2nd plaintiff, a claimant in his own right to testify, the consequence of which is that the conclusion by the lower Court that the respondents were defamed cannot be maintained and issues one, two and three accordingly resolved in favor of the appellant.” – Per Barka, JCA

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LIBEL – ESSENTIAL ELEMENTS A PLAINTIFF MUST PROVE TO SUCCEED IN AN ACTION FOR LIBEL – EFFECT OF FAILURE TO PROVE ELEMENTS OF LIBEL

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“The Apex Court in the case of CSSD Farms Ltd vs. Schlumberger (2019) ALL FWLR (pt. 972) 180 @ 212, enumerated the essential elements that must be proved in establishing the tort of libel to include:
i.Published a statement in a permanent form
ii.The statement referred to him
iii.The statement was defamatory of his person in the sense that:
i.It exposed him to hatred, ridicule or contempt.
ii.It lowered him in the estimation of right-thinking members of the community/society
iii.It injured his reputation in his office, trade or profession
iv.It injured his financial credit. All the ingredients of the offence must be established, and where any of the elements remains unproven, the action fails.”
” – Per Barka, JCA

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TORT OF DEFAMATION – DEFINITION OF DEFAMATION

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“It is elementary the fact that defamation is the act of damaging the good reputation of someone generally consisting of libel and slander.” – Per Barka, JCA

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TERRITORIAL JURISDICTION – EXTENT OF TERRITORIAL JURISDICTION OF THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY

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“On whether the High Court of the FCT, i.e. the lower Court had territorial jurisdiction to have entertained the matter before it, I make reference to the recent decision of the Apex Court in Samuel Anyakorah vs. Peoples Democratic Party & Ors (2022) LPELR – 56876 (SC) per Jauro, JSC. My lord of the Apex Court held therein that:
“The extent of the territorial jurisdiction of the High Court of the FCT Section 257 of the Constitution has been the subject of judicial pronouncements in numerous cases of this Court. Section 299 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that the provisions of the Constitution shall apply to the Federal Capital Territory as if it were one of the states of the Federation. Similarly, the jurisdiction of the High Court of the FCT conferred by Section 257 of the Constitution much like the High Courts established for other states of the Federation does not extend beyond the territory of the of the Court. In this case the Federal Capital Territory. The trial Court therefore lacked the jurisdiction to entertain the appellant’s suit as the dispute therein arose in Anambra State. See Mailantarki vs. Tongo & Anor (2017) LPELR – 42467 (SC), Dalhatu vs. Turaki & Ors (2003) LPELR -917 (SC).”
It follows from the case just cited that for the jurisdiction of the High Court of the FCT to entertain any matter before it, it must arise from its territorial area which is the FCT.” – Per Barka, JCA.

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JURISDICTION – NATURE OF JURISDICTION – WHETHER THE ISSUE OF JURISDICTION MUST FIRST BE DETERMINED BY THE COURT ONCE IT IS RAISED

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“… jurisdiction is not only paramount and fundamental, but the basis upon which any Court or Tribunal derives its authority to try a matter before it. It has been settled by numerous cases without limit, that jurisdiction is the life wire of a case, and for that reason deserves to be determined first in time, the rationale being that where a Court lacks the jurisdiction to determine a case, the proceedings remain nullity ab initio, regardless of how well conducted and decided the case may be. See Oloba vs. Akereja (1988) 3 NWLR (pt. 84) 508, Odofin vs. Agu (1992) 3 NWLR (pt. 229) 350.” – Per Barka, JCA.

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CASES CITED

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Not Available

 

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STATUTES REFERRED TO

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Not Available

 

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