Biodun Oduwole & Ors v. Professor Tam David West

Where a trial court awards damages wrongly an appellate court can award the correct damages. This is what the Court of Appeal did and I cannot see my way clear in faulting the court. I agree with my learned brother that the award of N10,000.00 damages is arbitrary. I agree with the award of N300,000.00 damages by the Court of Appeal. The appeal is dismissed. I abide by the costs award in the lead judgment of Fabiyi, JSC.

P.10

This is an appeal against the Judgment of the Court of Appeal, Ibadan Division (hereinafter called “the court below”) – per Okunola JCA (of blessed memory) delivered on 3rd April, 2003 setting aside the quantum of damages awarded in favour of the Respondent by the High Court of Oyo State, sitting at Ibadan and presided over by Oyetunde J. in his Judgment delivered on 1st July, 1999.

P.12

Dissatisfied with the said Judgment, the Appellants have appealed to this Court with the leave of the court below which was duly sought by the Appellants. There is only one ground of appeal which without its particulars, it reads as follows:

“1. The learned justices of the Court of Appeal erred in law when they interfered with and disturbed the award of damages made by the trial court”,

I note that the Relief sought from this Court reads as follows:

“An order setting aside the judgment of the Court of Appeal and in its stead entering judgment to dismiss the Respondent’s appeal”,

ALTERNATIVELY

An order setting aside the damages awarded by the Court of Appeal and substituting thereof an order to reduce the said damages considerably”.

[The underlining mine]

The Respondent who was the Plaintiff in the trial court, claimed Two hundred and Fifty Million Naira as damages from the Appellants for Libel contained in the Editorial column of the Nigerian Tribune of Monday 2nd September, 1996 titled “ENOUGH OF DAVID WEST”.

Pleadings which were further amended by each of the parties, were filed and exchanged. At the trial, four (4) witnesses including the Respondent, testified for the Respondent. The Appellants elected not to testify or give evidence but rested their case on that of the Respondent. This fact, was even noted by the trial court at page 123 lines 16 to 18 of the Records.

P.13

After addresses by the learned counsel for the parties, in a reserved Judgment, the learned trial Judge, found that the statement that the Respondent was sacked from the Ministry of Petroleum Resources, is false and that the same is defamatory of the Respondent and held that the Respondent’s claim for libel, was proved in that regard. When His Lordship came to award of quantum of damages, he strangely and most surprisingly, stated that there was no evidence before him that the Respondent was injured in his reputation as “an astute social figure”. On this basis, he awarded in favour of the Respondent, the sum of N10,000.00 (ten thousand naira). Yet, the Appellants at paragraph 4.05 of their Brief, quoted the reverse and deliberately omitted to include the word “no”.

On appeal to the court below on quantum of damages by the Respondent, as already noted by me above, the said award was set aside and was enhanced or if you like, substituted by an award of three hundred thousand naira (N300,000.00), hence the instant appeal.

The Appellants, have formulated two (2) issues for determination, namely,

“i. Whether the learned justices of the Court of Appeal were right in interfering with the damages awarded by the learned trial judge.

ii. Whether the sum of Three Hundred Thousand Naira awarded by the lower Court was not manifestly high or excessive in the circumstances”.

On his part, the Respondent, also formulated two (2) issues for determination.

They read as follows:

“1. Whether the learned justices of the Court of Appeal correctly applied the legal principles when they disturbed the damages awarded by the learned trial judge,

2. Whether the sum of N300,000.00 awarded by the Court of Appeal was manifestly high or excessive”.

P.14

As could be seen, the issues of the parties are substantially the same although differently worded. In my respectful but firm view, the issue for determination, is whether or not the court below was justified in interfering or disturbing the award made by the trial court. But before dealing with this issue, it is not in doubt that the Respondent’s case or evidence at the trial court, was never controverted by the Appellants who in fact, rested their case on that of the Respondent. It is now firmly settled firstly, that pleadings and forensic eloquence of a brilliant lawyer, do not constitute evidence. See the case of Neka G.B.B. Manufacturing Co. Ltd. v. A.CB. Ltd. (2004) 1 SCNJ 193@ 205 – per Pats-Acholonu JSC (of blessed memory) and therefore, any averment of fact or facts in a pleading but not given in evidence, is or are deemed abandoned and must be discountenanced. See also the case of Mobil Produce (Nig.) Ltd. v. Umenweke (2002) 9 NWLR (Pt. 773) 541 CA In other words, averments in pleadings, do not tantamount to evidence. See the cases of Raimi Olarewaju v. Amos Bamigboye & ors. (1987) 3 NWLR (Pt.60) 313, 359, 362; and Eseigbe v. Agholor & anor. (1993) 9 NWLR (Pt.316) 128; (1993) 12 SCNJ 82 – In fact, Onu JSC in the latter case at page 105, stated that failure to give evidence, is deemed that the party have accepted both the pleadings and evidence or case of the Plaintiff, “lock, stock and barrel”. See also the cases of Ezeamoh v. Alhaji Atta (2004) 7 NWLR (Pt.873) 468; (2004) 2 SCNJ 200 @ 235; (2004) 2 S.C (Pt.1) 75 citing other cases therein, Hutchful v. Biney (1971) 1 ANLR 268; Imano v. Robinson (1974) 3-4 SC 1 @ 9 – 10; Odunsi v. Bamgbala & 3 ors. (1995) 1 NWLR (Pt.374) 641; (1995) 1 SCNJ 275 and Federal Capital Development Authority v. Alhaji Naibi (1990) 3 NWLR (Pt.138) 270 @ 281; (1990) 5 SCNJ 187. This Court in the case of Hyacinth N. Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt.361) 124; (1994) 9 SCNJ. 161 – per Iguh JSC stated that there, the Appellant (as in this case), offered no evidence whatsoever in his defence;

P.15

That in this sort of or such circumstances, the evidence before the trial court, goes one way with no other set of facts or evidence weighing against it. See also per Kutigi JSC (as he then was later CJN) in the cases of Magnusson v. Koiki & 2 ors. (1993) 12 SCNJ 114 @ 124 and Ajero & anor. v. Ugorji & 6 ors. (1999) 7 SCNJ 40 @ 48.

In the instant case leading to this appeal, the evidence of the Respondent at page 77 lines 14 to 19 as noted by the court below at page 16 of the Records and which was not controverted in evidence by the Appellants, is/was the attitude of the Appellants when the Respondent demanded an apology. Said he:

“The attitude of the Defendants since my counsel wrote the letter of 9.9.96 has been most unfriendly. They even cartooned me. They wrote more articles against me. They have been relentless in their ridicule of me. The defendants have not rendered any apology to me. I want the court to award me damages in the sum of N250,000.00.”

[the underlining mine}

Secondly, for the effect, consequence or implication where a defendant rests his case on the plaintiff’s case, see the cases of Akanbi v. Alao (1989) 3 NWLR (Pt.108) 118 @ 140 – per Craig JSC, 143 – per Eso JSC; (1989) 5 SCNJ 1; NEPA v. Olagunju & anor. (2005) 3 NWLR (Pt.915) 603 @ 632 C.A.; Mobil Producing Nig. Unlimited & anor. v. Chief Monokpo & anor. (2003) 12 SCNJ. 206 @ 239 citing the cases of Amponsa Tandoh v. CFAO 10 WACA 180; Laurie v. Building Co. (1942) 1 K.D. 152 @ 155; Toriola v. Williams (1982) 7 S.C. 27 @ 33.

I will now deal with the issue of award of damages specifically arising from proven defamation and in particular, libel cases such as the instant case in this appeal.

P.16

The power of an Appellate Court to interfere, review, re-access or substitute the quantum of damages, is not now a matter of controversy. It is now firmly established in a plethora of decided authorities some of which have been cited and relied on by the parties in their respective Briefs and Brief. When this appeal came up for hearing on 15th February, 2010, Gbadamosi, Esq. – the leading learned counsel for the Appellants, adopted their Brief of Argument and the Reply Brief. He urged the Court to allow the appeal. Ogunbade, Esq – the leading learned counsel for the Respondent, also adopted their Brief of Argument. He urged the Court to dismiss the appeal. Thereafter, Judgment was reserved till to-day.

It is now also firmly settled that in order to interfere or justify the interfering with any decision of a trial judge on the amount or quantum of damages awarded or awardable; the Appellate court has to be convinced either,

(a) that the judge acted upon some wrong principles of law or

(b) that the amount awarded, was so extremely high or very low or small as to make it an entirely erroneous estimate of the damage to which the plaintiff is entitled”.

See – per Iguh JSC in the case of Nzeribe v. Dave Engineering Co. Ltd. (supra) @ 140 of the NWLR also referred to and adopted in the case of The Shell Petroleum Development Co. of Nig. Ltd. v. Chief Tiebo VII & 4 ors. (2005) 4 SCNJ 39 @ 56 – per Oguntade JSC (rtd.) (2005) 3 – 4 S.C 137. The said award in the opinion of the Appellate Court, must be arbitrary, erroneous and based on a wrong exercise of discretion.

P.17

In the case of Onwu & ors. v. Nka & ors. (cited and reproduced in the Respondent’s Brief and by the court below at page 157 of the Records as Nka v. Onwu (1996) 40/41 LRCN 1303 @ 1336) it is also reported in (1996) 7 NWLR (Pt.458) 1; (1996) 7 SCNJ 240, where this Court held that a court can increase the general damages awarded to a plaintiff, having regard to the fallen value or purchasing power of the Naira and in that case, the fluctuating currency. It further held inter alia, as follows:

“……the appellant’s complaint can only be meaningful if they can show that the award is arbitrary, in which case, the Court of Appeal will and is duty-bound to intervene to set aside or reduce it (see S.W. Ubani-Ukoma v. GE Nicol (1962) 1 All NLR 105; Bashiru Bakare v. Alfred Jalleh (1969) 1 NMLR 262; Yesufu Maduga v. Hamza Kafarbai (1987) 3 NWLR (Pt.62) 635 or that it is either excessive or erroneous (see Ekpe v. Pogbemi (1978) 3 S.C. 209) or further still, that there has been a wrong exercise of discretion in the award”.

[the underlining mine]

The cases of A.C.B. Ltd. & ors. vs. Apugo (2001) FWLR (Pt.42) S.C 38 (it is also reported in (2001) 2 SCNJ 248) and S.G.C Ltd. vs. Bendel Newspapers Ltd. (2002) FWLR (Pt.93) 1939 – 1940 C.A. are also cited and relied on in the Respondent’s Brief.

I note also that the Respondent in his Brief, cited and relied on the other pronouncements by the court below at pages 157 to 159 of the Records as regards the principles laid down by the Appellate Courts in the cases of Nirchandani v. Pinheiro (2001) FWLR (Pt.48) 1307 referring to the cases of Carey v. Associated Newspapers Ltd. (No.2) (1965) 2 Q.B. 87 @ 104 – per Pearson J., Daily Times v. Williams (1986) 3 NWLR (Pt.124) 543; His Highness Uyo I. v. NNPL In re Felix Egware (1974) NSCC 304; (It is also reported in (1974) 6 S.C. 103) and Dr. Offoboche v. Ogoja Local Government & anor. (2001) FWLR 1051 (it is also reported in (2001) 7 SCNJ 468) and (2001) 16 NWLR (Pt. 739) 458.

P.18

As noted by the court below at page 158 of the Records, it is now firmly established that libel is actionable per se. Proof of damages is unnecessary the reason being that every libel, is a civil wrong and the law implies general damages. The case of Ejabulor v. His Highness Osha (not Osea) (1990) 5 NWLR (Pt.1 48) 1 @ 15 (it is also reported in (1990) 7 SCNJ 187) is also referred to.

In the case of Chief F. R. A. Williams v. Daily Times of Nig. Ltd. (1990) 1 NWLR (Pt.124) 1 @ 49; (1990) 1 SCNJ 1, it was held that an Appellate Court ought not to upset an award of damages by a trial court merely because if it had tried the matter, it might have awarded a different figure. That an award of damages can only be upset or interfered with by an Appellate Court, if it is shown by an Appellate, either,

“(a) the trial court acted or proceeded upon wrong principles of law; or

(b) the amount awarded by the trial court is manifestly and extremely high or low, or

(e) the amount was an entirely erroneous estimate which no reasonable tribunal will make.

For guidance on figure to be awarded, see the cases of Ziks Press Ltd. v. Alvan Ikoku 13 WACA 188; Akinola v. Anyiam (1961) 1 ANLR 508; Adelakin v. The National Bank of Nigeria Ltd. (1978) 1 LRN.; Youssouff v. Metre-Goldwayne – Mayer Pictures Ltd. (1933 – 34) TLR 581. I have stated earlier in this Judgment, that the evidence of the Respondent, was uncontroverted by the Appellants who rested on his case. In the case of Jolayemi & 2 ors. v. Alhaji Alaoye & anor. (2004) 12 NWLR (Pt.887) 322 @ 340; (2004) 5 SCNJ 305, this Court-per Kalgo JSC (Rtd.) stated inter alia, that if a party’s pleadings are relevant to this claim in the court and he produces evidence in support of the pleadings (as happened in this case leading to this appeal), the court, is bound to consider and decide his claim on the evidence.

P.19

The cases of Overseas Construction Ltd v. Creek Enterprises Ltd (1985) 3 NWLR (Pt.13) 407; African Continental Seaways Ltd v. Nigerian Dredging Roads & General Works (1977) 5 S.C. 235 and Adeniji v. Adeniji (1972) 4 S. C. 10 were referred to therein.

The court below at page 159 of the Records, stated inter alia; as follows:

“A brief recourse to the records in this case showed that the learned trial judge had before him, evidence that clearly should have influenced him to award a far more adequate sum as compensation. Such evidence include the following where;

1. PW4 gave evidence that he read the publication and stated as follows:

“I was embarrassed and upset because I regard Professor West as a role model.”

He was not cross-examined on this evidence.
(See page 86 lines 23 – 24 of the record).

2. PW1 tendered the publications. Plaintiff himself stated in evidence as follows:

(a) His reputation and standing in society as a very prominent national and international figure. (See pages 28 – 29, 70-71 of the Records)”.

The Appellants in paragraphs 4.02 and 4.03 at page 3 of their Brief unjustifiably with respect, accused the court below of having made up its mind to revise upwards the damages awarded by the trial court and had pre-determined the issue. It is unfortunate to say the least.

At pages 160 to 161, it stated inter alia, as follows:

“It is surprising to observe that the trial judge abandoned all the evidence above to hold that there was no evidence that Plaintiff was injured in his reputation as an astute social figure. The admission that the Plaintiff is on astute social figure having been made by the trial judge, it is clear that he ought to have gone on to award a far higher sum in damages”.

P.20

I agree completely. In order to justify its intervention in the said award by the learned trial Judge which it found as a fact to be arbitrary, erroneous and based on a wrong exercise of discretion, it continued at page 161 of the Records, inter alia, as follows:

“…clearly PW4 stated his upset and embarrassment on the publication because of the respect he had for the Plaintiff…The evidence of failure of the defendants to retract the offensive publication after the receipt of the letter dated 9th September, 1996 which the trial judge found made him find the libel proved is enough aggravating evidence. It is also surprising to note that after the evidence of PW1 & PW4 supra the learned trial judge could again change gear to hold that “the first and fourth plaintiff witnesses did not by reason of the publication, cease to give the plaintiff the respect they were giving him before they read the words complained and to say there was no evidence in the defendants publication which aggravated damages”. In my view this finding of the learned trial judge is not in tune with the evidence before the trial judge. In the circumstance I hold that the appellant in this case has acquired a good reputation and dignity and had by the libel been injured in his reputation, dignity and feelings. The natural grief and distress to which he may have been put by this libellous publication are elements that fall to be taken into account. (See Mc CARAY v. ASSOCIATED NEWSPAPERS (1995) (sic) (it is 1965) 2 Q.B. 86, 104 – 105 cited with approval by the Supreme Court in OFFOBOCHE v. OGOJA LOCAL GOVERNMENT (supra)”.

Except to disagree that the evidence of PW1 was of any moment, since he merely tendered the publications, I cannot fault the above which are borne out from the Records.

P.21

It concluded at pages 161 to 162 inter alia, as follows:

“…In the light of the foregoing I hold that from the evidence of PW1 (sic) and PW4 which the trial court accepted and later denied or neglected. There is evidence in the libellous publication which aggravate damages such that the defendants who had injured the appellant in his reputation must pay for the injury the Plaintiff/appellant has suffered. This will bring out the element of compensation in the award of damages in the instant case. It is trite, as in the instant case, that in libel cases once libel is proved, damage is presumed hence there is no longer any need to prove actual damage. See CROSS RIVER STATE NEWS PAPERS CORPORATION v. MR. J.L. ONI & ORE (1995) 1 SCNJ. 218; (1995) 26 LRCN 51…”

Again, the evidence of PW1 should have read 2 PW or PW2 who started his evidence at page 28 of the Records. This is because, as noted by me, PW1 was the Senior Librarian at the National Library and was called only to tender documents Exhibits – see page 18 of the Records. It is not every mistake of court, that will nullify the proceedings. This is trite or settled law.

I am puzzled at the stance of the learned trial judge with respect, approbating and reprobating at the same time. I have a hunch that by the award of N10,000.00 (ten thousand naira) in a claim of N250 million, which was arbitrary, erroneous and based on a wrong discretion, the learned trial judge, wanted to please or indulge the Appellants who in their ego, will not retract their said publication and apologise. In the case of Fielding & anor. v. Variety Incorporated (1967) 2 G.B. 541 @ 854 – 855 – per Lord Salmon, it was held that the fact that the defendants did not apologise or withdraw the publication, cannot be taken into an account, but it is material in so far as it increased the injury to the Plaintiff’s (Fielding’s) feelings. I have noted in this Judgment that in the relief sought by the Appellants in this Court, they even want the said award by the trial court, to be reduced considerably!

P.22

This indeed is evidence that the Appellants, have shown no remorse in this matter.

It must be borne in mind that besides the falsehood or the untruth of the publication of a libellous matter and the injury consequently caused or it occasioned to a plaintiff, express malice is in the making of the statement or publication and this fact is taken as established – i.e. want of bona fide or the presence of male fide. Thus or then, an action could be properly founded on the said statement or publication. See the case of Halsey v. Brotherhood (1881) 19 Ch. D. 386. What may be described as a wrongful malice in legal parlance, means an act intentionally done without just cause. The Advanced Dictionary of Current English defines it as “active ill will or desire to harm others”. The Respondent in paragraph 22 of his Further Amended Statement of Claim, pleaded express malice. At page 77 of the Records, there is such evidence in support. The Respondent, at pages 28 to 29, 70 – 71 of the Records, gave evidence of his reputation and standing in society. A long or systematic practice of libelling a plaintiff, tends to show malice. See the case of Barnet v. Long (1851) 3 N.L. C. 315 @ 414. Assessment of general damages in libel cases, is not markedly different from any other tort except that the injury suffered by a person defamed, is generally appreciated more by the jury (where it is used) than in the cases of personal injuries sustained in a motor accident hence Mackinnon L.J. in the case of Groom v. Crooker (1939)1 KB. 194 @ 231 observed.

“I have been struck by the contrast between the frequent niggardliness of verdicts in cases of personal injury and the invariable profuseness in claims- for defamation. A soiled reputation seems assured of more liberal assessment than a compound fracture.”

I note that general damages are classified as injury to reputation, feelings, health and pecuniary loss. See the case of Goshim v. Corry (1884) 7 Man. & C.G. 342 @ 346.

P.23

A court or jury in assessing damages, is/are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time it/they gave its/their verdict. It or they may consider what the defendant’s conduct has/had been, before the action after the action and in court during trial. See the case of Praed v. Graham (1890) 24 0. Q.B.D. 53 @ 55 – per Esher M.R. Therefore, proof of malice on the part of the defendant as in the instant case, can affect the quantum of damages. See the case of Meed v. Denbiguy (1792) Peak 168.

Before concluding this Judgment, in the case of Ladsner v. Sketch Publishing co. Ltd. (1979) 4 – 6 CC HCJ 108, Ajose-Adeogun J. deprecated the conduct of the Defendants right from the time of the publication down to the time of trial. He referred to or cited the case of Hulton & Co. v. Jones (1909) 2 K. B. @ P. 483 citing the case of DeCrespigney v. Wellesley 130 E.R. 112 where Best C.J. said as follows:

“It is difficult to estimate the consequences of libel in a newspaper. It may circulate the calumny through every region of the globe. Those who read it may never read the subsequent explanation or the report of the trial, and some of those who read both may forget the result and be left with a general recollection that the Plaintiff was a man of whom a discreditable story was reported in the paper. Libelous statements are published by newspapers because they find that it pays, many of their readers prefer to read and believe the worst of everybody, and the newspaper proprietor cannot complain if jurors remember this in assessing damages.

P.24

The amount of damages is peculiarly their province and I see no ground for interference.

In my view the whole matter i.e. the publication taken together with the subsequent conduct of the Defendants savours of calumny and denigration and all the circumstances analysed warrant an award of aggravated damages”.

[the underlining mine]

I must confess that the conduct of the Appellants from the time of the said publication, at the trial and up till now with respect, savours of impunity, denigration and remorselessness and arrogance to say the least on the erroneous assumption that they were stating the truth which fact however, they never gave in evidence or subject themselves, to cross-examination. The reason for not testifying, is anybody’s guess. The only regret, is that the Respondent, did not claim for exemplary, punitive or aggravated damages, in the face of and established fact of an outrageous publication which merited punishment as malice, insolence and flagrant disregard of the law and the like was evident in the conduct of the defendants. If he had done so, having regard to all the circumstances, this Court may have considered the claim and award the same or part of it. I therefore, answer Issue 1 of the parties in the Affirmative/Positive. In respect of Issue 2 of the parties, my answer is definitely in the Negative. If there was an appeal by the Respondent for an enhancement of the said award, in all the circumstances of the case, this Court should have been minded to grant the enhancement having regard to the present value of the naira and the conduct of the Appellants. It is however, settled that a court, does not and is not generally entitled to award a claim or relief not sought for by a party or plaintiff in particular. See the cases of Kalio v. Daniel Kalio (1975) 2 S.C. 15 @ 17 – 19; Ekpenyong v. Nyong (1975) 2 S.C. 71 @ 81 – 82; Union Beverages Ltd. v. Owolabi (1988) 2 NWLR (Pt.68) 128 @ 133; (1988) 1 SCNJ 122 and Olakanjiola & anor. v. Chief Balogun (1989) 3 NWLR (Pt.108) 192 @ 206; (1989) 5 SCNJ. 42 just to mention but a few.

P.25

It is from the foregoing and the fuller lead Judgment of my learned brother, Fabiyi JSC just delivered and which I had the privilege of reading before now and I agree with the reasoning and conclusion, that I too, find no merit whatsoever in this appeal which fails. I too, dismiss it and I also hereby affirm the Judgment of the court below. Costs follow the event. I also award the sum of N50,000.00 (fifty thousand naira) costs in favour of the Respondent payable to him by the Appellants.

 I read before now the judgment just delivered by my learned brother, Fabiyi, JSC. I agree with his reasoning and conclusion. This appeal from its antecedents is bound to fail. I dismiss it. I affirm the judgment of the court below. I adopt the award of costs made by my learned brother Fabiyi, JSC.

P.26