NIGERIAN TELEVISION AUTHORITY V A.I.C. LIMITED

NIGERIAN TELEVISION AUTHORITY V A.I.C. LIMITED


IN THE COURT OF APPEAL IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS

ON THURSDAY, 12TH JULY, 2018


Suit No: CA/L/40/2013

CITATION:

Before Their Lordships:

MOHAMMED LAWAL GARBA, JCA

JOSEPH SHAGBAOR IKYEGH, JCA

YARGATA BYENCHIT NIMPAR, JCA


BETWEEN

NIGERIAN TELEVISION AUTHORITY
(APPELLANT)

AND

A. I. C. LIMITED
(RESPONDENT)


PRONOUNCEMENT


A. ACTION
1. Traverse – Constituents of an effective traverse
Whether a general denial is sufficient traverse

A few days ago, in the lead judgment in Appeal No.CA/L/206/2013: Nickok Best Int. Ltd. v. UBA, Plc., (facts of which are similar to the appeal) delivered on the 13th June 2018, I had cause to deal with the issue of when a proper and effective traverse of a specific, categorical, assertive and positive averment in pleadings, for the purpose of joining issue which would call for the proof provided for under the provisions of Sections 131, 132 and 133 (1) of the 2011 Evidence Act, can be said to have been made by a party who intend to deny and dispute the fact(s) therein. It is apposite to re-state it here and it goes thus:-

“With regards to pleadings, the rules are settled that a party who intends to deny, dispute or controvert a positive and specific fact, deposition/s or assertion/s in the pleadings of his opponent or the other party to a case, he must, in his own pleadings, do so specifically, frontally, categorically and expressly so as to, prima facie, join an issue of dispute that would give rise to the duty and requirement of proof of the fact/s so denied and disputed. Where vital and material fact/s in a party’s case are not so specifically, frontally and categorically denied and disputed, they are deemed admitted by the other party. Dosunmu v. Dada (2002) 13 NWLR (783), NNPC v. Sele (2004) 5 NWLR (866) 379, Jadcom Limited v. Oguns Electrical (2004) 3 NWLR (859) 153. In that regard, general, obtuse, indistinct, unspecific and evasive averments in respect of specific, crucial, positive and distinct facts are considered not enough and not effective controversion or traverse to raise an issue of dispute to would warrant proof in a case. For instance, an averment by a party that he is either not in a position to admit or deny a specific, positive and categorical fact pleaded in his opponent’s pleadings would fall short of a proper and effective traverse capable of constituting or giving rise to a legal dispute that would call for or require proof. See generally, Odiba v. Muemue (supra), Okeke v. Oruh (1999) 6 NWLR (606) 175, Elendu v. Ekwoaba (1998) 63 LRCN, 4975 @ 4988, (1008) 12 NWLR (578) 320, Nnanna v. Akinsumade (2000) 8 NWLR (668) 293, Nnanna v. Onyenekuchi (2000) 15 NWLR (689) 92, Daniyan v. Iyagin (2002) 7 NWLR (766) 346, Ukachukwu v. Uzodinma (2007) 9 NWLR (1038) 167, Bamgbegbin v. Oriare (supra). Osayande v. Etuk (2008) 1 NWLR (1068) 211. In the case of Air Via Limited v. Oriental Airlines Limited (2004) ALL FWLR (272) 1565, a legal “dispute” was defined by the Supreme Court as:-

“a conflict of claims or rights or demand on one side met by contrary allegations on the other side.”

As a noun, “dispute” is defined at page 505 of the 8th Edition of Black’s Law Dictionary as “A conflict or controversy, espouse that has given rise to a particular law suit.”
Oxford Advanced Learner’s Dictionary of current English 6th Edition, at page 363 defines “dispute” to include

“1. To question whether something is true and valid,
2. To argue or disagree strongly with somebody about something.”

See other definitions in line with the above, in Attorney General, Abia State v. Attorney General, Federation (2007) 6 NWLR (1029) 200, Bandex Engineering v. Efficient Pet. Nigeria limited (2001) 8 NWLR (715) 333, Williams v. Udofia (2017) 7 NWLR (1563) 354.

In order for averments in the parties’ pleadings to give rise to a dispute which would require proof by evidence, facts deposed therein on a particular issue must be in conflict or controversy and strongly denying and disputing a common position or point. An avernment by one of the parties saying that he is not in a position to admit or deny a positive and pungent assertion or deposition of fact, does not constitute an effective denial, a conflict or controversy to give rise to a dispute between the parties that would in law, call for proof. The statement that a party is not in a position to admit a fact means that he does not know anything about the fact and does not deny it since he is not in possession of contrary fact. To say that he is not in a position to deny a fact, means that he does not know anything about the fact and concedes to it in the absence of contrary fact. In the case of Ugochukwu v. Unipetrol Nigeria Plc. (2002) 7 NWLR (765) 1, the apex Court; Mohammed, JSC referred to Lewis & Peat (NRI) Limited v. Akhimien where it was stated and held that:-

“We must observe, however, that in order to raise an issue of fact in these circumstances, there must be a proper traverse; and a traverse must be made either by a denial or non admission either expressly or by necessary implication. So that if a defendant refuses to admit a particular allegation in the statement of claim, he must state so specifically; and he does not do this satisfactorily by pleading thus:-

“Defendant is not in a position to admit or deny (the particular allegation in the statement of claim) and will at the trial put the plaintiff to proof.” As was held in Harris v. Gamble (1875) 7 Ch. D. 877 a plea that the “defendant puts plaintiff to proof” amounts to insufficient denial: equally a plea that the “defendant does not admit the correctness” (of a particular allegation in the statement of claim) is also an insufficient denial – see Rutter v. Tregent (1979) 12 Ch. D. 758.”

See also Daniyan v. Iyagin (supra), Igbinovia v. Okomu OiI Palm (2002) 17 NWLR (796) 386, Eke v. Okwaranyia (2001) 12 NWLR (726) 181.

Without the need to waste verbiage, the Appellant’s averment in Paragraph 2 of the Amended Statement of Defence did not constitute a proper and effective denial and traverse of the Statement of Claim to put the juristic as a company incorporated under the Laws the Respondent’s paragraph 1 personality of the Respondent of Nigeria, in issue in the case so as to cast the burden of proving same by way of evidence, on the Respondent. The oblique and spineless averment that the Appellant does not admit the paragraph 1 of the Statement of Claim is more of a muted admission that the Appellant is not in a position to deny the categorical, positive, assertive and pungent assertion that the Respondent is a duly incorporated company under the laws of Nigeria, rather than any category of effective traverse of the averment. In the circumstances, no issue was joined by the parties in their pleadings and there was no evidential burden on the Respondent to prove an averment and assertion which was not properly and effectively denied and traversed by the Appellant, who is deemed to have no answer to it. Since there was no dispute on the issue between the parties in their pleadings the question of proof, which presupposes the existence of controversy, denial and dispute, would not arise. Consequently, the Lower Court was right that the legal or juristic personality of the Respondent in terms of its being a duly incorporated company under the laws of Nigeria, was a non-issue in the case and so whether or not there is in law, any rebuttable presumption in favour of the Respondent on the issue, was of no moment in the case. Per GARBA, JCA. read in context

B. APPEAL
2. Interference with Award of Damages – Exceptions that legitimize interference with award of damages by an Appellate Court
Circumstances in which an appellate court will interfere with award of damages made by a trial Court

Once again, the Lower Court did not mention, let alone consider any of the recognized relevant factors in the assessment of the quantum of damages the Respondent was entitled to for the defamation by the Appellant but, just concluded and decreed that –

“The Plaintiff was defamed egregiously and has cause to seek relief. I award the Plaintiff N160 Million in damages for libel…”

Plainly, there is no attempt at the assessment and no legal basis for the decreed amount awarded as damages for the libel/defamation, in the above conclusion. It is simply, a decree without reason and/or basis.
The law is now firmly settled that an appellate Court would not ordinarily interfere with the award of damages made by a trial Court except in recognized and accepted situations which, broadly put, are
(a) Where the trial Court acted upon wrong principles of law,

(b) Where the award is either so ridiculously too low or too high to make it entirely erroneous in law, and

(c) Where injustice would result if the appellate Court does not intervene and interfere with the award.

See Onwu v. Nka (1996) 7 NWLR (458) 1, Ojini v. Ogo Oluwa Motors Nigeria Limited (1998) 1 NWLR (534) 353, Offoboche v. Ogoja L.G. (supra), Gbadamosi v. Dairo (2001) 6 NWLR (708) 137. Akinkugbe v. E.H.N. Limited
(2008) 12 NWLR (1098) 375, Cameroon Airlines v. Otutuizu (2011) 4 NWLR (1238) 572. As stated above, the Lower Court did not assess the quantum of damages in line with the requirement of the law and so did not act under any principle of the law in making the award in the sum awarded as damages. Taking into account the facts and evidence of the attitude of both the Appellant and the Respondent at the time of the defamation, before and during the trial, the standing of the Respondent as a corporate entity, business integrity and reputation and the position of the Appellant as a public institution charged with the duty and responsibility to the general public, the sum of One Hundred and Sixty Million Naira (N160,000.00) as damages for the defamation against the Respondent is so ridiculously high in the circumstances of the case as to make it an entirely erroneous award in law. In the case of Bashorun v. Ogunlewe (supra) it was held that:-

“It must be remembered that the purpose of awarding damages in a libel case to a successful plaintiff is just to vindicate his good character and reputation. It must not be punitive or aggravated.”

See also Nwaenang v. Ndarake (2013) LPELR-20720 (CA). The award of the sum of (N160,000,000.00) One Hundred and Sixty Million Naira as damages by the Lower Court is clearly punitive, aggravated, totally unsupportable by the facts and circumstances of the case before it and therefore unsustainable in law. In the premises, the Court is not only entitled to, but has a duty to interfere with it in order to avoid the injustice that was foisted on the Appellant by the award. I therefore find merit in the arguments of the Appellant that the award of the sum was unreasonable and grossly out of proportion to the defamation of the Respondent. Per GARBA, JCA. read in context

3. Grounds of Appeal – Essence/objective of a ground of appeal

I should start a consideration of the objection by restating that the primary essence of a ground of appeal, with or without particulars, is to give adequate notice to a Respondent, of the specific nature of the complaint against the decision of a Lower Court which an Appellant would place and canvass before an appellate Court for its determination at the hearing of the appeal, so that the Respondent would know and fully prepare to respond to or answer same at the hearing of the appeal. Per GARBA, JCA. read in context

4. Grounds of Appeal – The concern of the appellate Court in grounds of appeal
Duty of Court in determining the competence of grounds of appeal

Over time, the attitude of the appellate Courts has been to ignore the technical form in which grounds of appeal and for particulars thereof are couched and concern themselves with the real and substance of the complaint contained in the grounds notice of which is given therein and generally, once the complaint is unambiguous and clear, the grounds would be valid and competent for the purpose of the appeal. See Atuyeye v. Ashamu (1987) 1 NWLR (49) 267 @ 282; Nsirim v. Nsirim (1990) 3 NWLR (138) 285 @ 297; D. Stephens Ind. Ltd. v. B. C. C. I Nig. Ltd (1999) 7 SC (Pt.III) 27 @ 29-30; Aderounmu v. Olowu (2000) 4 NWLR (652) 253; Iwuoha v. NIPOST (2003) 8 NWLR (822) 308; Ibrahim v. Osunde (2003) 2 NWLR (804) 21; Osasona v. Ajayi (2004) 5 SC (Pt.1) 88 @ 96; Arewa Paper Converters Ltd. v. N. D. I. C. (Nig. Universal Bank) Ltd. (2006) ALL FWLR (335) 1; Oloruntoba v. Abdul-Raheem (2009) 6 MJSC (Pt.1) 1; Ozigbo v. PDP (2010) 9 NWLR (1200) 601; Ogboru v. Uduaghan (2012) 3 MJSC (Pt.III) 75. Per GARBA, JCA. read in context

5. Particulars of Ground of Appeal – The requirements of the particulars of ground of appeal
Whether particulars can be used to expand the scope of a principal complaint

The law is also settled that particulars of a ground of appeal are required to flow, inure and be derivable from the ground as supplements, compliments, be consistent with, connected or related to and in line and support of the ground, see Ozigbo v. PDP (supra), Ushie v. Edet (2010) 6 NWLR (1190) 386; Iyen v. FRN (2010) 2 NWLR (1177) 1; Somaco Ent. Ltd. v. N.W.B., Plc. (2006) ALL FWLR (293) 193; Osasona v. Ajayi (supra) and that particulars of a ground of appeal cannot be used to expand the scope and ambit of the complaint in the ground; see Globe Fishing Ind. Ltd v. Coker (supra); Honika Sawmill v. Hoff (1994) 2 NWLR (326) 252; Amuda v. Adelodun (1994) 8 NWLR (360) 23 @ 31,; Briggs v. Okoye (2005) 4 SC, 89 @ 108; Briggs v. C.L.O.R.S.N. (2005) 12 NWLR (938) 59 @ 90. Per GARBA, JCA. read in context

6. Grounds of Appeal – How it is a necessity to clearly state particulars of misdirection where error is alleged by a ground of appeal
Whether where error(s) of law or misdirection is made a ground of appeal, the particulars of the error of law or misdirection must be given

The specific nature of the error of law complained of in the ground is set out in particular (a) to the ground; failure by the Lower Court to consider, construe and give effect to the proviso identified in the alleged defamatory statement. That is what the provisions of Order 7 Rule 2(2) of the Court of Appeal Rules, 2016 envisaged and require when they say: –

“where a ground of appeal alleges misdirection or error in law, the particulars and nature of the misdirection or error shall be clearly stated.” Per GARBA, JCA. read in context

C. DAMAGES
7. Assessment of Damages – Factors to be considered in assessing damages in defamation cases

In the case of Bashorun v. Ogunlewe (2000) 1 NWLR (640) 221, it was held that in case of defamation, the assessment of damages to be awarded does not depend on any legal rules but rather, is governed by the peculiar facts and circumstances of a particular case, on the authority of Atoyebi v. Odudu (supra). Consequently, the Courts are to consider all the relevant and material facts and peculiar circumstances as disclosed in the evidence for the purpose of assessing the quantum of damages a successful party would been entitled to. However, an award of damages must be adequate to assuage for the injury to the claimant’s reputation and atone the character and pride which were assaulted by the defamation. See Oduwole v. David West (2010) 10 NWLR (1203) 598. In Mamman v. Salaudeen (2005) 1-2 SC (Pt.II) 46, (2005) 18 NWLR (958) 478, the apex Court re-stated the guiding principles and factors to be considered in assessing the quantum of damages in defamation/libel cases as set out in Ejabulor v. Osha (supra) as follows: –

(i) The conduct of the plaintiff;
(ii) His position and standing;
(iii) The nature of the libel;
(iv) The mode and extent of publication;
(v) Conduct of the Defendant,
(vi) Refusal to retract or render apology to the plaintiff.

See also Offoboche v. Ogoja LG (2001) 7 SC (Pt.II) 107, Guardian Newspaper Limited v. Ajeh (supra), African Newspapers of Nigeria Limited v. Useni (2014) LPELR-22954 (CA). Per GARBA, JCA. read in context

8. Award of Damages – When damages will naturally flow from defamation
Guiding principle for award of damages for defamation

My learned brother, MOHAMMED LAWAL GARBA, JCA gave me the opportunity of reading In advance the judgment just delivered. I agree with the reasoning and conclusion arrived in the lead judgment. The judgment considered all the issues distilled by the parties and it leaves little room for me to add anything. Having satisfactorily shown that a defamatory statement was made against the Respondent, damages will naturally flow therefrom. In the case of Edem & Anor v. Orpheo Nig Ltd & Anor (2003) LPELR- 1006 (SC), the Court held thus:

“…it is not necessary for the corporation in order to succeed to prove that special or general damages occurred once it can show that its reputation or goodwill is injured by the libel.” Per NIMPAR, JCA. read in context

D. PRACTICE AND PROCEDURE
9. Issue of Jurisdiction – When and how to raise the issue of jurisdiction

On its part, particular (b) contains a separate, distinct and different complaint that the pleadings and evidence before the Court did not establish or show that the Respondent is a juristic person capable of being defamed and its legal competence to initiate the action against the Appellant. The pith of particular (b) is to question and challenge the decision/judgment by the Lower Court on ground of lack or want of juristic personality and competence of the Respondent to be capable of being defamed and initiating the action against the Appellant for the defamation. The real complaint is completely unrelated and unconnected to the primary complaint in ground 1 and does not ossify and support that complaint, but an independent distinct and separate complaint from the ground. Particular (b) is an unwitting or surreptitious attempt, or both, to expand, and extend the real and primary complaint in the ground 1 of the Notice of Appeal and as shown in the authorities cited on the point; the law does not permit or allow that. However, as I have stated above, the particular (b) is a complaint by the Appellant on the juristic personality of the Respondent to be capable of being defamed and to also, by necessary and unavoidable legal implication, to initiate the action before the Lower Court against the Appellant. That is a direct challenge to the competence of the action which goes to and touches on the jurisdiction of the Lower Court to entertain and adjudicate over it, which was an issue raised at the trial and decided on by the Lower Court in the judgment appealed against. It is therefore, a complaint which arises from the judgment of the Lower Court which can properly be raised on the Notice of Appeal and be validly canvassed at the hearing of the appeal. In addition, being an issue which goes to question or challenge the competence of the action and necessarily, the jurisdiction of the Lower Court to entertain and adjudicate over it, the law permits and allows it to be raised at this stage even for the first time either by the parties or the Court on its own motion, suo motu and anyhow. This position of the law is now common knowledge in the appellate Courts to require citation or reference to judicial authorities to support it, but for completeness of all righteousness, in Mil. Gov., Ondo State v. Kolawole (2008) 5 SCNJ 37, it was held by the apex Court that the issue of jurisdiction can be raised at any stage of judicial proceedings of a case “by whatever name or under any shade” and that “it can be raised viva voce or the Court can raise it suo motu”. In the earlier case of State v. Onagoruwa (1992) 2 SCNJ, 1, the final Court had stated that it is never premature or too late in the course of judicial proceedings of a case to raise the issue of jurisdiction. See also Ejiofodomi v. Okonkwo (1982) 11 SC, 74; NDIC v. NBC (2002) 7 NWLR (766) 272 @ 292, 293-4. In the above premises even though particular (b) is a distinct and separate complaint from the complaint in ground 1, it is not liable to be struck out, but would be considered in the appeal since the learned Counsel for the parties have addressed its merit in their respective briefs of argument. I also intend to deal with it first. Per GARBA, JCA. read in context

E. TORT
10. Defamation – Requirements to be proven in a defamatory case
Test for determining defamatory words

In the famous case of Sketch Publishing Company Limited v. Alhaji Ajagbemokeferi (supra) on libel or defamation Oputa, JSC had stated and set out the requirements a plaintiff in an action for libel has the burden to prove against a defendant when he said:-

“The tort of defamation arises because every person has a right to the protection of his good name, reputation and the estimation in which he stands in the society of his fellow citizens; Scotch v. Sampson (1882) 8 Q.B.D. 491 at 563.
Anybody who publishes anything injuring that good name, reputation or estimation commits the tort of libel (if written) and slander (if oral). The onus on the plaintiff in an action for libel is to prove that the defendant: –
(i) Published in permanent form, a statement;

(ii) That the statement referred to him;

(iii) That the statement was defamatory of him in the sense that;

(iv) It lowered him in the estimation of right thinking members of the society or;

(v) It exposed him to hatred, ridicule or contempt, or

(vi) It injured his reputation in his office, trade or profession; or profession; or /

(vii) It injured his financial credit.

(1) That there was publication in writing

(2) That the publication is defamatory of the plaintiff;

(3) That the publication was false;

(4) That the publication was to a third party;

(5) That it was the defendant who published the defamatory words.

See also Mayaange v. Punch Nigeria Limited (1994) 7 NWLR (358) 570 @ 585, Ezeugwa v. Adimorah (1993) 1 NWLR (271) 620, Labati v. Badmus (2006) 1 NWLR (1014) 199, Concord Press Nigeria Limited v. Olutola (1999) 9 NWLR (620) 578, Alawiye v. Ogunsanya (2004) 4 NWLR (864) 486, Guardian Newspaper Limited v. Ajeh (2011) 10 NWLR (1256) 574, Onyenwe v. Anaejionu (2014) LPELR-22495 (CA). In the case before the Lower Court, the only point of dispute between the parties which called for proof was whether the words or statement broadcast by the Appellant were defamatory of the Respondent in the context they or it was made in the broadcast. The Courts have evolved judicial guidelines for the determination of whether words or statements published are defamatory in the context and peculiar circumstances of a case. Once again, the case of Sketch v. Ajagbemokeferi (supra) trail the blaze on the guidelines as stated by Wali, JSC in the lead judgment that: –

“The test of reasonableness guides and directs the Court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable complained of in a defamatory sense. In determining whether the words are capable of a defamatory meanings a Judge will construe the words according to the fair and natural meaning which would be given them by reasonable persons of ordinary intelligence and will not consider what persons setting themselves to work to deduce some unusual meaning might succeed in extracting from them. The test according to Lord Selborne is whether, under the circumstances in which the writing was published, reasonable men to whom the publication was made would be likely to understand them in a libelous sense.”

His lord then cautioned that: –

“In deciding whether words are capable of conveying defamatory meaning, the Court will reject that meaning which can only emerge as a product of some strained or forced or utterly unreasonable interpretation.”
In the earlier case of Okafor v. Ikeanyi (1979) 3-4 SC, (1979) 12 NSCC, 43, Bello, JSC had stated that –

“It is settled law that the question as to whether the words complained of are in their natural and ordinary meaning defamatory, is a question of fact.”

See also Okolo v. Midwest Newspaper Corporation (1977) 1 SC, 20 (1977) NSCC, 11, Registered Trustees, R. C. Amorc Nigeria v. Awoniyi (1994) 7 NWLR (355) 154, Agbanelo v. UBN, Limited (2000) 4 SC (Pt.1) 233, Punch Nigeria Limited v. Eyitene (2001) 17 NWLR (741) 228, Dumbo v. Idugboe (1983) 7 SCNJL, 29 @ 49, Dina v. New Nigeria Newspapers (1986) 2 NWLR (22) 353 @ 363.

The words complained of by the Respondent as being defamatory are contained in paragraph 6 of the statement of claim dated 12th April, 2002 and thus: –

“There is another angle which has not featured before. In a conversation which were (sic) not classified an off the record, we were told that Sule Ozemua started playing a hard ball because he was settled by A.I.C. If this is true, then Peter Igbinedion who gave A.I.C. 50 years lease of life by signing agreement and information the minister 5 months later must have been HANDSOMELY SETTLED by A.I.C. A.I.C. and suspicion will remain what they are unless a proof is provided.”

How did the Lower Court determine that these words/statement are/is defamatory in the context and circumstances in they were/was made/ published? In the Four and Half (41/2) pages judgment, the Lower Court at page 4 thereof (page 318 of the Record of Appeal) had merely concluded that-

“I also find that the statement in the context they were made were under reckless and unwarranted, going beyond proven fact and offering pejorative speculation based on a hazarded premise offered by
an unmentioned source. I also find the statement aired, published/broadcast to be responsible on the part of the Defendant. Public interest does not justify pejorative and careless speculation.”

As can easily be observed, the Lower Court did not consider the guidelines judicially established and recognized in the above authorities or any other relevant factors or material facts and circumstances disclosed in the evidence before it in order to make the above finding and reach the conclusion that the words in question were in fact, “rather reckless and unwarranted, going beyond proven fact and offering pejorative speculation” to be defamatory of the Respondent in the context in which they were published. It is clearly simplistic to qualify the words without a clear demonstration of how and the reasons why, by the objective test of reasonable and ordinary person, they would be understood to be defamatory of the Respondent in the context in which they were published/broadcast by the Appellant. I must emphasize that in the determination of whether words used in an action for defamation/libel are in fact defamatory or libelous in the context in which they were used, the test is not subjective or left that the whims of a trial judge/Court to merely conclude, without clearly showing how they impugn, denigrate and disparage the integrity and reputation of the complainant in the estimation of ordinary and reasonable persons, that they are reckless and unwarranted and so defamatory. The apex Court, in Dumbo v. Idugboe (supra) had stated that-

“In determining whether the words are capable of defamatory meaning, the Judge will construe the words to the fair and natural meaning which would be given to them by reasonable persons of ordinary intelligence, and will not consider what persons setting themselves to work to adduce some unusual meanings might succeed in extracting from them.”

See also Salawu v. Makinde (2002) LPELR-123 (CA).

Before and in the above conclusion by the Lower Court, there was no interpretation or construction of the words complained of in their fair and natural meaning which reasonable persons of ordinary intelligence would understand and give them in the context in which they were broadcast by the Appellant. The primary and binding duty and obligation of the Lower Court was to consider the words in question along with the relevant and material evidence placed before it, show that in the peculiar circumstances and the context in which they were broadcast by the Appellant, the fair and natural meaning to be given to them by ordinary listeners/watchers of the broadcast by the Appellant is that they tend, in their opinion or estimation, to lower the integrity and reputation of the Respondent in order to conclude that the words are in fact and deed, defamatory of the Respondent. It is not sufficient or enough to simply jump into the conclusion that the words are defamatory or even “reckless or unwarranted, going beyond proven fact” without a clear demonstration in the record of proceedings, of how and on what basis the conclusion was arrived at. Looking at the words broadcast by the Appellant, in the context of the Report or Programme on the Hotel Project undertaken by the Respondent which was stopped and stalled at the time, particularly the statement that: –

“We were told that Sule Ozenna started playing a hard ball because he was not settled by A.I.C. If this is true, then Peter Igbinedion who gave A.I.C. 50 years lease of life by signing agreement and informing the minister 5 months later must have been HANDSOMELY SETTLED by A.I.C.”, are by their ordinary meaning, intended to show and say that the Respondent had paid bribe or bribery in order to be given “50 years lease of life” to enable it to undertake the Hotel Project. The imputation of payment of bribe or bribery against the Respondent in the statement is one which raised the allegation of a crime against the Respondent and so defamatory; see Okolo v. Midwest Newspaper Corporation (supra), particularly since it was admittedly based on unverified suspicion which the Appellant did not honestly believe to be true at the time of the broadcast by the use of the phrase “if it is true”. Undoubtedly the allegation of bribe or bribery against the Respondent in the circumstances and the context of the broadcast would in the estimation and opinion of ordinary listeners/watchers of the programme/broadcast, lower the integrity and reputation of the Respondent in its business relationships. As a company, the statement/allegation of a crime is plainly, naturally and ordinarily defamatory of the Respondent and the law is that defamation is actionable per se and the law presumes damages in favour of the plaintiff/complaint, even in the absence of proof thereof. See Oduntan v. General Oil Limited (1995) 4 NWLR (387) 1; Edem v. Orpheo Nigeria Limited (supra) also reported in (2003) 13 NWLR (838) 57; CRSNC vs. Oni (supra), Vanguard Media Limited v. Olafisoye (supra); Atoyebi v. Odudu (1990) 6 NWLR (157) 384. The Respondent did not therefore have to prove that it suffered any particular loss or damage before it could be awarded damages for the defamation committed against it. The issue is resolved against the Appellant.” Per GARBA, JCA. read in context


LEAD JUDGMENT DELIVERED BY GARBA, JCA


In a judgment delivered on the 5th December, 2011, the Federal High Court (Lower Court) sitting in Lagos, awarded the sum of One Hundred and Sixty Million Naira (N160,000,000.00) as damages for libel against the Appellant and in favour of the Respondent. A penalty of One Hundred and Sixty Thousand Naira (N160,000.00) was also imposed for every thirty (30) days in the event of failure to retract the libel, within four (4) weeks of the service of the judgment/Enrolled Order on the Appellant.

Aggrieved by the judgment, the Appellant brought this appeal by a Notice of Appeal dated the 29th February, 2012 on four (a) grounds from which two (2) issues were formulated for determination in the Appellant’s Amended Brief filed on 2nd February, 2018. The issues are as follows:-

“1. Whether the statement broadcast by the Appellant was defamatory of or injurious to the reputation of the Respondent in the way of its business. (Issue 1 distilled from Grounds 1 and 5)

2. Whether the Lower Court was right to have awarded the sum of N160 Million as damages against the Appellant as well as penalty of N160,000.00 for every 30 days for non-retraction of the alleged libel. (Distilled from Grounds 3 and 4).”

In the Respondent’s Amended Brief filed on the 6th March 2018, the Respondent’s Motion dated and filed the same day, i.e., the 6th March 2018, challenging the competence of grounds 2 and 1 and/or particular (b) thereof, was argued and the Court is urged to strike out the ground/particular (b) thereof for being incompetent. The Appellant’s issues are adopted in the Respondent’s Amended Brief for determination in the appeal, and it is pointed out that the ground 2 of the Notice of Appeal is abandoned since no issue has been distilled from it for decision in the appeal, on the authority of Daniel v. FRN (2015) 13 NWLR (1475) 119 @ 131.

The Appellant filed a Reply brief on the 2nd February, 2018 in response to the Respondent’s Amended Brief. Since the issues submitted by the learned Counsel for the parties are the same and derivable from the grounds on the Notice of Appeal, I would consider them in the determination of the appeal and together. Before then, in line with prudence and usual practice, I would consider the Respondent’s objection to the competence of ground 1/particular (b) of the Notice of Appeal which are thus:

“i. The Learned trial judge erred in law when he held that the statement broadcast by the Defendant/Appellant was defamatory of the Respondent/Plaintiff.

PARTICULARS

(a) The Lower Court failed to construe or give any consideration or effect to the proviso ‘if this is true’, as contained in the alleged defamatory statement.

(b) Based on the state of the pleadings and on the evidence before the Court, the Respondent did not prove that it is a juristic person capable of being defamed.”

The grounds upon which the objection was premised, as set out on the motion paper, are that: –

1. The Appellant failed to formulate any issue from ground 2.

2. Particular (b) of the ground 1 of the Notice of Appeal is not related to the error complained of in the ground.

I have noted that the Appellant’s Counsel has conceded in the Appellant’s Reply Brief that ground 2 of the Notice of Appeal has been abandoned and so the need to consider the Respondent’s ground 1 of the objection and arguments canvassed thereon, has been effectively over taken by the concession. All that needs be said is that for being abandoned, ground 2 of the Notice of Appeal is hereby struck out.

The arguments on ground 2 of the objection in respect of ground/particular (b) of the Notice of Appeal are that particular (b) it totally unrelated and quite different from the complaint in the ground, thereby tainting it. Citing Globe Fishing Ind. Ltd. v. Coker (1990) 7 NWLR (162) 265 @ 300 on the nature of particulars of a ground of appeal, it is submitted that the Court cannot be made to separate the offending particular from the ground. Since the Appellant has argued both alleged errors contained in the ground under the same Issue 1, it is liable to be struck out.

The Court is urged to so hold or in the alternative, strike out particular (b) of ground 1 and the arguments thereon in the Amended Appellant’s Brief.

For the Appellant, it is argued in the Amended Respondent’s Brief that particular (b) of ground merely itemized or specified the nature of the error of law which led the Lower Court to hold that the statement in question was defamatory of the Respondent and it complies with the provisions of Order 7 Rule 2 of the Court of Appeal Rules, 2016 which is meant to notify a Respondent of the nature of the error complained of in a ground of appeal so as to avoid a surprise at the appeal. UBA Ltd. v. Achoru (1990) 6 NWLR (156) 254 @ 283 was referred to and it is contended that particular (b) is not only related to or connected with ground 1, but inextricably interwoven with it such that both are in harmony and supplementary to each other. The case cited by the Respondent for the objection is said to be inapplicable to particular (b) and in further argument, Counsel said, relying onObi-Odu v. Duke (2006) 1 NWLR (961) 375 @ 396, that where parties to an appeal are not misled by the contents or particulars of a ground of appeal, any complaint about its form which does not occasioned a miscarriage of justice, is inconsequential. According to Counsel, the Respondent’s Counsel has not been misled since he has joined issues with the Appellant and canvassed arguments in respect of particular (b).

I should start a consideration of the objection by restating that the primary essence of a ground of appeal, with or without particulars, is to give adequate notice to a Respondent, of the specific nature of the complaint against the decision of a Lower Court which an Appellant would place and canvass before an appellate Court for its determination at the hearing of the appeal, so that the Respondent would know and fully prepare to respond to or answer same at the hearing of the appeal.

Over time, the attitude of the appellate Courts has been to ignore the technical form in which grounds of appeal and for particulars thereof are couched and concern themselves with the real and substance of the complaint contained in the grounds notice of which is given therein and generally, once the complaint is unambiguous and clear, the grounds would be valid and competent for the purpose of the appeal. See Atuyeye v. Ashamu (1987) 1 NWLR (49) 267 @ 282; Nsirim v. Nsirim (1990) 3 NWLR (138) 285 @ 297; D. Stephens Ind. Ltd. v. B. C. C. I Nig. Ltd (1999) 7 SC (Pt.III) 27 @ 29-30; Aderounmu v. Olowu (2000) 4 NWLR (652) 253; Iwuoha v. NIPOST (2003) 8 NWLR (822) 308; Ibrahim v. Osunde (2003) 2 NWLR (804) 21; Osasona v. Ajayi (2004) 5 SC (Pt.1) 88 @ 96; Arewa Paper Converters Ltd. v. N. D.I . C. (Nig. Universal Bank) Ltd. (2006) ALL FWLR (335) 1; Oloruntoba v. Abdul-Raheem (2009) 6 MJSC (Pt.1) 1; Ozigbo v. PDP (2010) 9 NWLR (1200) 601; Ogboru v. Uduaghan (2012) 3 MJSC (Pt.III) 75.

The law is also settled that particulars of a ground of appeal are required to flow, inure and be deriveable from the ground as supplements, compliments, be consistent with, connected or related to and in line and
support of the ground, see Ozigbo v. PDP (Supra), Ushie v. Edet (2010) 6 NWLR (1190) 386; Iyen v. FRN (2010) 2 NWLR (1177) 1; Somaco Ent. Ltd. v. N.W.B., Plc. (2006) ALL FWLR (293) 193; Osasona v. Ajayi (supra) and that particulars of a ground of appeal cannot be used to expand the scope and ambit of the complaint in the ground; see Globe Fishing Ind. Ltd v. Coker (supra); Honika Sawmill v. Hoff (1994) 2 NWLR (326) 252; Amuda v. Adelodun (1994) 8 NWLR (360) 23 @ 31,; Briggs v. Okoye (2005) 4 SC, 89 @ 108; Briggs v. C.L.O.R.S.N. (2005) 12 NWLR (938) 59 @ 90.

In the case of ground 1 of the Appellant’s Notice of Appeal, the primary complaint therein is that the Lower Court erred in finding that Respondent was defamed by the statement broadcast by the Appellant and is one directed at the evaluation of the evidence placed before Lower Court on the assertion/allegation of the defamation by the Respondent and the defence put up by the Appellant.

The specific nature of the error of law complained of in the ground is set out in particular (a) to the ground; failure by the Lower Court to consider, construe and give effect to the proviso identified in the alleged defamatory statement. That is what the provisions of Order 7 Rule 2(2) of the Court of Appeal Rules, 2016 envisaged and require when they say: –

“where a ground of appeal alleges misdirection or error in law, the particulars and nature of the misdirection or error shall be clearly stated.”

On its part, particular (b) contains a separate, distinct and different complaint that the pleadings and evidence before the Court did not establish or show that the Respondent is a juristic person capable of being defamed and its legal competence to initiate the action against the Appellant. The pith of particular (b) is to question and challenge the decision/judgment by the Lower Court on ground of lack or want of juristic personality and competence of the Respondent to be capable of being defamed and initiating the action against the Appellant for the defamation. The real complaint is completely unrelated and unconnected to the primary complaint in ground 1 and does not ossify and support that complaint, but an independent distinct and separate complaint from the ground. Particular (b) is an unwitting or surreptitious attempt, or both, to expand, and extend the real and primary complaint in the ground 1 of the Notice of Appeal and as shown in the authorities cited on the point; the law does not permit or allow that.

However, as I have stated above, the particular (b) is a complaint by the Appellant on the juristic personality of the Respondent to be capable of being defamed and to also, by necessary and unavoidable legal implication, to initiate the action before the Lower Court against the Appellant. That is a direct challenge to the competence of the action which goes to and touches on the jurisdiction of the Lower Court to entertain and adjudicate over it, which was an issue raised at the trial and decided on by the Lower Court in the judgment appealed against. It is therefore, a complaint which arises from the judgment of the Lower Court which can properly be raised on the Notice of Appeal and be validly canvassed at the hearing of the appeal. In addition, being an issue which goes to question or challenge the competence of the action and necessarily, the jurisdiction of the Lower Court to entertain and adjudicate over it, the law permits and allows it to be raised at this stage even for the first time either by the parties or the Court on its own motion, suo motu and anyhow. This position of the law is now common knowledge in the appellate Courts to require citation or reference to judicial authorities to support it, but for completeness of all righteousness. In Mil. Gov., Ondo State v. Kolawole (2008) 5 SCNJ 37, it was held by the apex Court that the issue of jurisdiction can be raised at any stage of judicial proceedings of a case “by whatever name or under any shade” and that “it can be raised viva voce or the Court can raise it suo motu”. In the earlier case of State v. Onagoruwa ( 992) 2 SCNJ, 1, the final Court had stated that it is never premature or too late in the course of judicial proceedings of a case to raise the issue of jurisdiction. See also Ejiofodomi v. Okonkwo (1982) 11 SC, 74; NDIC v. NBC (2002) 7 NWLR (766) 272 @ 292, 293-4.

In the above premises even though particular (b) is a distinct and separate complaint from the complaint in ground 1, it is not liable to be struck out, but would be considered in the appeal since the learned Counsel for the parties have addressed its merit in their respective briefs of argument. I also intend to deal with it first.

APPELLANT’S ARGUMENTS:

It is submitted that the issue of the corporate personality of the Respondent was joined by the parties in their pleadings but that the Respondent who had the legal burden of proving it, failed to do so. Paragraph 1 of the Appellant’s Amended Statement of Defence dated 22nd March, 2011 and the Respondent’s paragraph 1 of the Statement of Claim dated 12th April, 2002 were referred to and it is argued that the Appellant has expressly traversed the Respondent’s assertion of being a company duly registered under the Nigerian Laws to join issue on its juristic personality, citing Bullen and Leake Precedents of Pleadings, 12th Edition, at pages 79-80.

Counsel said that the effect of the denial and traverse of the assertion by the Appellant is to put the burden of proof on the Respondent under the provisions of Sections 131(1) and 136 (1) of the Evidence Act, 2011, to produce its certificate of incorporation in the absence of which it had failed to prove that it was a legal entity with juristic capacity to sue and be capable of being defamed. That, the failure to produce its certificate of registration was fatal to its case, on the authority of A.C.B Plc. v. Emostrade (2002) 8 NWLR (770) 501 @ 517; Awoniyi v. Reg. Trustees of AMORC (1990) 6 NWLR (154) 42 @ 74-5 and Emenite Ltd. v. Oleka (2005) 6 NWLR (921) 350 @ 356-7.

It is the case of Counsel that the Lower Court erred in law to hold that the Respondent’s corporate status under the law was a non-issue after the parties had joined issue in the leadings on it and that there was a rebuttable presumption in favour of the Respondent’s Legal Status which the Appellant did not rebut. Counsel contends further that there is no presumption in law with respect to the incorporation of a limited liability company which has to be proved by the production of certificate of judgment incorporation as stated inEmenite v. Oleka (supra) and that the Lower Court wrongly placed the burden of proof of a denial, on the Appellant.

RESPONDENT’S SUBMISSIONS:

It is submitted that the Appellant did not, by its paragraph 1 of the Amended Statement of Defence, properly deny the Respondent’s assertion of its being incorporated under the Nigerian Laws to join issue on it which would require proof by evidence from the Respondent. NNPC v. Famfa Oil Ltd (2012) 17 NWLR (1328) 148; Oparaji v. Ahihia (2012) 4 NWLR (1290) 266 @ 276-7 and Emodi v. Emodi (2015) 2 NWLR (1443) 323 @ 345 were cited on what constitute a specific and proper traverse in pleadings and presumption of admission where it is not made and it is contended that the Appellant’s averment in paragraph 1 of the Amended Statement of Defence constituted admission of the Respondent incorporation. Furthermore, Counsel said that documentary evidence tendered at the trial as Exhibit 1 confirms the existence of the Respondent as a company incorporated in Nigeria. The facts in the cases cited by the Appellant’s Counsel under the issue are said to be different in that the Defendants therein properly denied the incorporation of the companies in question to call for proof. The case of Emenite Ltd v. Oleka (supra) is said not to support the Appellant’s submission that a company must always prove its legal personality by production of its certificate of incorporation and the Court is urged to so hold.

In the Appellant’s Reply brief, it is said that the Lower Court did not say in its judgment that the issues were not joined by the parties in their pleadings on the juristic personality of the Respondent, but merely said it was a non issue and that there was a presumption in favour of the Respondent which the Appellant did not rebut and that in the absence of a Respondent’s notice, the Respondent’s Counsel cannot be heard to argue other grounds outside the ones relied by the Lower Court in its judgment.

The case of CSD Anambra State v. Onuzulike (1991) 8 NWLR ( 12) 706 @ 714 was cited for the position and in the alternative, it is argued that the Appellant properly traversed the Respondent’s paragraph 1 of the statement of claim since even a general denial is not tantamount to an admissiory but casts the burden of proof of the assertion. Reliance for the argument was placed on, inter alia, Ace Jimona Ltd v. N.E.C.C. Ltd (1966) ALL NLR, 112 @ 115 and Ateco Ltd. v. Mil. Gov., Ogun State (2009) 15 NWLR (1163) 26 @ 55-6.

A few days ago, in the lead judgment in Appeal No.CA/L/206/2013: Nickok Best Int. Ltd. v. UBA, Plc., (facts of which are similar to the appeal) delivered on the 13th June 2018, I had cause to deal with the issue of when a proper and effective traverse of a specific, categorical, assertive and positive averment in pleadings, for the purpose of joining issue which would call for the proof provided for under the provisions of Sections 131, 132 and 133 (1) of the 2011 Evidence Act, can be said to have been made by a party who intend to deny and dispute the fact(s) therein. It is apposite to re-state it here and it goes thus:-

“With regards to pleadings, the rules are settled that a party who intends to deny, dispute or controvert a positive and specific fact, deposition/s or assertion/s in the pleadings of his opponent or the other party to a case, he must, in his own pleadings, do so specifically, frontally, categorically and expressly so as to, prima facie, join an issue of dispute that would give rise to the duty and requirement of proof of the fact/s so denied and disputed. Where vital and material fact/s in a party’s case are not so specifically, frontally and categorically denied and disputed, they are deemed admitted by the other party. Dosunmu v. Dada (2002) 13 NWLR (783), NNPC v. Sele (2004) 5 NWLR (866) 379, Jadcom Limited v. Oguns Electrical (2004) 3 NWLR (859) 153.

In that regard, general, obtuse, indistinct, unspecific and evasive averments in respect of specific, crucial, positive and distinct facts are considered not enough and not effective controversion or traverse to raise an issue of dispute to would warrant proof in a case. For instance, an averment by a party that he is either not in a position to admit or deny a specific, positive and categorical fact pleaded in his opponent’s pleadings would fall short of a proper and effective traverse capable of constituting or giving rise to a legal dispute that would call for or require proof. See generally, Odiba v. Muemue (supra), Okeke v. Oruh (1999) 6 NWLR (606) 175, Elendu v. Ekwoaba (1998) 63 LRCN, 4975 @ 4988, (1008) 12 NWLR (578) 320, Nnanna v. Akinsumade (2000) 8 NWLR (668) 293, Nnanna v. Onyenekuchi (2000) 15 NWLR (689) 92, Daniyan v. Iyagin (2002) 7 NWLR (766) 346, Ukachukwu v. Uzodinma (2007) 9 NWLR (1038) 167, Bamgbegbin v. Oriare (supra). Osayande v. Etuk (2008) 1 NWLR (1068) 211.

In the case of Air Via Limited v. Oriental Airlines Limited (2004) ALL FWLR (272) 1565, a legal “dispute” was defined by the Supreme Court as:-

“a conflict of claims or rights or demand on one side met by contrary allegations on the other side.”

As a noun, “dispute” is defined at page 505 of the 8th Edition of Black’s Law Dictionary as “A conflict or controversy, espouse that has given rise to a particular law suit.”

Oxford Advanced Learner’s Dictionary of current English 6th Edition, at page 363 defines “dispute” to include

“1. To question whether something is true and valid, 2. To argue or disagree strongly with somebody about something.”

See other definitions in line with the above, in Attorney General, Abia State v. Attorney General, Federation (2007) 6 NWLR (1029) 200, Bandex Engineering v. Efficient Pet. Nigeria limited (2001) 8 NWLR (715) 333, Williams v. Udofia (2017) 7 NWLR (1563) 354.

In order for averments in the parties’ pleadings to give rise to a dispute which would require proof by evidence, facts deposed therein on a particular issue must be in conflict or controversy and strongly denying and disputing a common position or point. An avernment by one of the parties saying that he is not in a position to admit or deny a positive and pungent assertion or deposition of fact, does not constitute an effective denial, a conflict or controversy to give rise to a dispute between the parties that would in law, call for proof. The statement that a party is not in a position to admit a fact means that he does not know anything about the fact and does not deny it since he is not in possession of contrary fact.

To say that he is not in a position to deny a fact, means that he does not know anything about the fact and concedes to it in the absence of contrary fact.

In the case of Ugochukwu v. Unipetrol Nigeria Plc. (2002) 7 NWLR (765) 1, the apex Court; Mohammed, JSC referred to Lewis & Peat (NRI) Limited v. Akhimien where it was stated and held that:-

“We must observe, however, that in order to raise an issue of fact in these circumstances, there must be a proper traverse; and a traverse must be made either by a denial or non admission either expressly or by necessary implication. So that if a defendant refuses to admit a particular allegation in the statement of claim, he must state so specifically; and he does not do this satisfactorily by pleading thus:-

“Defendant is not in a position to admit or deny (the particular allegation in the statement of claim) and will at the trial put the plaintiff to proof.” As was held in Harris v. Gamble (1875) 7 Ch. D. 877 a plea that the “defendant puts plaintiff to proof” amounts to insufficient denial: equally a plea that the “defendant does not admit the correctness” (of a particular allegation in the statement of claim) is also an insufficient denial – see Rutter v. Tregent (1979) 12 Ch. D. 758.”

See also Daniyan v. Iyagin (supra), Igbinovia v. Okomu Oil Palm (2002) 17 NWLR (796) 386, Eke v. Okwaranyia (2001) 12 NWLR (726) 181.

Without the need to waste verbiage, the Appellant’s averment in Paragraph 2 of the Amended Statement of Defence did not constitute a proper and effective denial and traverse of the Statement of Claim to put the juristic as a company incorporated under the Laws the Respondent’s paragraph 1 personality of the Respondent of Nigeria, in issue in the case so as to cast the burden of proving same by way of evidence, on the Respondent. The oblique and spineless averment that the Appellant does not admit the paragraph 1 of the Statement of Claim is more of a muted admission that the Appellant is not in a position to deny the categorical, positive, assertive and pungent assertion that the Respondent is a duly incorporated company under the laws of Nigeria, rather than any category of effective traverse of the avernment.

In the circumstances, no issue was joined by the parties in their pleadings and there was no evidential burden on the Respondent to prove an avernment and assertion which was not properly and effectively denied and traversed by the Appellant, who is deemed to have no answer to it. Since there was no dispute on the issue between the parties in their pleadings the question of proof, which presupposes the existence of controversy, denial and dispute, would not arise. Consequently, the Lower Court was right that the legal or juristic personality of the Respondent in terms of its being a duly incorporated company under the laws of Nigeria, was a non-issue in the case and so whether or not there is in law, any rebuttable presumption in favour of the Respondent on the issue, was of no moment in the case.

In the result, the issue is resolved in favour of the Respondent.

I now return to the arguments of learned Counsel on the issues for determination.

APPELLANT’S SUBMISSION

On Issue 1, the submissions are to the effect that the Respondent, as a company and artificial person, has no feelings and can only be injured in its reputation and earnings, on the authority of Edem v. Orpheo Nig. Ltd.

(2003) 13 NWLR (838) 537 @ 551- and 552. Further, that a company can only prove that it has been defamed if it can show that it has suffered injury to its reputation or goodwill by the defamation. The case of Sketch v.
Ajagbemokeferi (1989) 1 NWLR (100) 678 @ 696 was commended to the Court and it is contended that the Respondent did not adduce evidence at the trial that it suffered any injury to its financial credit and reputation in the way of its business, in order to sustain the claim for libel. Also, that the Respondent was expected to call evidence of third parties who were affected by the alleged libel in their estimation and relationship with it and not rely on evidence of its own estimation or opinion of itself as required by the law in Iwueke v. IBC (2005) 17 NWLR (955) 447 @ 482 and Nsirim v. Nsirim (supra) @ 299. According to Counsel, PW1, an employee and part of the Respondent, cannot competently give opinion evidence on the effect of the alleged libel on the Respondent as that would amount to Respondent giving opinion about itself and all the other witnesses did not give evidence of any defamation against the Respondent, but rather about the Respondent’s Chairman, who is legally different from it.

In addition, the Lower Court was said to have failed to consider the phrase “if it is true” contained in the alleged defamatory statement which made it contingent upon the veracity, of the preceding statement, in the judgment, thereby deprived the Appellant of its right to fair hearing and occasioned a miscarriage of justice.

On Issue 2, it is submitted that the Lower Court did not give any reason(s) or justification for the award of the colossal sum of N160,000,000.00 as damages for libel as it was under the legal duty to do, on the authority of NEPA v. Inameti (2002) 11 NWLR (775) 397 @ 431 and Olurotimi v. Ige (1993) 8 NWLR (317) 257 @ 268. The Lower Court is also said not to have applied any of the established principles for the evaluation of damages sustained by the Respondent and the award was based on conjuncture or speculation since the Respondent did not establish that it suffered any injury to its reputation or goodwill in its business to be entitled to any award of damages or claim special, exemplary or aggravated damages for the award of sum by the Lower Court. The Court is invited to interfere with the quantum of the award in the event that it upholds the decision by the Lower Court that the Respondent was defamed and Oduwole v. West (2010) 10 NWLR (1203) 613 in support of the invitation. It is then said that although libel is actionable per se, the alleged defamatory words against the Respondent only impute a mere suspicion of a crime and are not actionable per se without proof of special damage and reference was made Galley on Libel and Slander, 8th Edition, page 82 @ paragraphs 163 and 164 and Iwueke v. IBC (2005) 17 NWLR (955) 447 @ 483.

Furthermore, it is submitted that the imposition of a penalty in the event of failure of retraction ordered by the Lower Court was granting a relief not sought by the Respondent which it lacked the jurisdiction to grant or impose on the authority of Ekpenyong v. Nyong (1975) LPELR-1090(SC) and Eagle Super Pack Nig. Ltd v. ACB, Plc (2006) 19 NWLR (1013) 20 @ 56. In addition, by the said penalty, the Lower Court is said to have without jurisdiction made, suo motu, a case for the Respondent which it did not make for itself, citing NBCI v. Integrated Gas Nig. Ltd (2005) 5 NWLR (976) 617 @ 644-5 and Nig. Airforce v. Shekete (2002) 18 NWLR (798) 129 151.

In conclusion, the Court is urged to allow the appeal and set aside the decision appealed against.

RESPONDENT SUBMISSIONS:

Relying onDuyile v. Ogunbayo & Sons Limited (1988) 1 NWLR (1972) 601, @ 611, it is submitted that, the Respondent being different from natural persons, does not need to prove special damages or even financial loss to recover damages for injury to its reputation in the way of its trade or business and the facts in its case are different from those in Sketch v. Ajagbemokeferi (supra) which involved defamation of an individual.

The case of Edem v. Orpheo Nigeria Limited (supra) relied on by the Appellant is said to be against its position on the need for a corporation to call evidence to prove that its business was injured and that in any event, PW2 and PW3 gave evidence as to the effect of the defamatory statement against the Respondent who could only act through human beings. The case of Asheile v. M.T. Nigeria Limited (2010) 15 NWLR (7275) 114 on proof of defamatory words in cases of libel, was referred to and it is maintained that the Respondent has proved the words complained of which suggested that its mode of conducting business was dishonest and shady.

The Court is urged to resolve the issue against the Appellant.

On Issue , it is submitted that the peculiar facts of the case justify the award of damages by the Lower Court since the Appellant is a statutory institution/establishment with defined duty to ensure accuracy in all its publications and there is no evidence to assist the Appellant in urging the Court to interfere with the award of damages.

African Newspaper Nigeria Limited v. Useni (2015) 3 NWLR (7447) 646 @ 497 to 497 (sic) was cited on when award of damages by a trial Court may be interfered with by an appellate Court. According to Counsel, the Lower Court held that the statements complained of were reckless, pejorative and that the Appellant ought to have retracted same as a responsible corporate body, as the justification for the award of damages made, relying on the Oduwole v. West (supra) on the nature of damages to be awarded once libel is proved. On the authority of CBN v. Okojie (2015) 14 NWLR (1479) 231 @ 263, Counsel

submits that failure to specifically claim special, exemplary or aggravated damages is not a bar to the grant of same if there are facts before a Court which justify such award. Reference was made to Exhibits D, E, F, G and H as evidence as to the reputation of the Respondent as a renowned engineering company and it is argued that the Appellant was bound not to air “speculations” and had the duty to fully investigate and only publish facts.

The Court is urged not to interfere with the award of damages by the Lower Court.

On the penalty imposed by the Lower Court, Counsel said it was a consequential order meant to give effect to the judgment, which the Lower Court on the authority of The Registered Trustees of Apostolic Church v. Olowoleni (1990) 6 NWLR (158) 514 @ 531 and Obayagbona v. Obazee (1972) 5 SC, 247 @ 254, in addition to CBN v. Okojie (supra) has the jurisdiction to make.

In conclusion, the Court is prayed to dismiss the appeal.

In the famous case of Sketch Publishing Company Limited v. Alhaji Ajagbemokeferi (supra) on libel or defamation Oputa, JSC had stated and set out the requirements a plaintiff in an action for libel has the burden to prove against a defendant when he said:-

“The tort of defamation arises because every person has a right to the protection of his good name, reputation and the estimation in which he stands in the society of his fellow citizens; Scotch v. Sampson (1882) 8 Q.B.D. 491 at 563.

Anybody who publishes anything injuring that good name, reputation or estimation commits the tort of libel (if written) and slander (if oral).

The onus on the plaintiff in an action for libel is to prove that the defendant: –

(i) Published in permanent form, a statement;

(ii) That the statement referred to him;

(iii) That the statement was defamatory of him in the sense that;

(iv) It lowered him in the estimation of right thinking members of the society or;

(v) It exposed him to hatred, ridicule or contempt, or

(vi) It injured his reputation in his office, trade or profession; or profession; or /

(vii) It injured his financial credit.

In other words, an imputation to be defamatory will have to be proved to have been to the discredit of the plaintiff.”

The requirements were restated in the case of Buraimoh v. Bamgbose (1989) 3 NWLR ( pt 190) 352 @ 364-5 as follows: –

(1) That there was publication in writing

(2) That the publication is defamatory of the plaintiff;

(3) That the publication was false;

(4) That the publication was to a third party;

(5) That it was the defendant who published the defamatory words.

See also Mayaange v. Punch Nigeria Limited (1994) 7 NWLR (358) 570 @ 585, Ezeugwa v. Adimorah (1993) 1 NWLR (271) 620, Labati v. Badmus (2006) 1 NWLR (2014) 199, Concord Press Nigeria Limited v. Olutola (1999) 9 NWLR (620) 578, Alawiye v. Ogunsanya (2004) 4 NWLR (864) 486, Guardian Newspaper Limited v. Ajeh (2011) 10 NWLR (1256) 574, Onyenwe v. Anaejionu (2014) LPELR-22495 (CA).

In the case before the Lower Court, the only point of dispute between the parties which called for proof was whether the words or statement broadcast by the Appellant were defamatory of the Respondent in the context they or it was made in the broadcast.

The Courts have evolved judicial guidelines for the determination of whether words or statements published are defamatory in the context and peculiar circumstances of a case . Once again, the case of Sketch v . Ajagbemokeferi (supra) trail the blaze on the guidelines as stated by Wali, JSC in the lead judgment that: –

“The test of reasonableness guides and directs the Court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable complained of in a defamatory sense. In determining whether the words are capable of a defamatory meanings a Judge will construe the words according to the fair and natural meaning which would be given them by reasonable persons of ordinary intelligence and will not consider what persons setting themselves to work to deduce some unusual meaning might succeed in extracting from them. The test according to Lord Selborne is whether, under the circumstances in which the writing was published, reasonable men to whom the publication was made would be likely to understand them in a libelous sense.”

His lord then cautioned that: –

“In deciding whether words are capable of conveying defamatory meaning, the Court will reject that meaning which can only emerge as a product of some strained or forced or utterly unreasonable interpretation.”

In the earlier case of Okafor v. Ikeanyi (1979) 3-4 SC, (1979) 12 NSCC, 43, Bello, JSC had stated that –

“It is settled law that the question as to whether the words complained of are in their natural and ordinary meaning defamatory, is a question of fact.”

See also Okolo v. Midwest Newspaper Corporation (1977) 1 SC, 20 (1977) NSCC, 11, Registered Trustees, R. C. Amorc Nigeria v. Awoniyi (1994) 7 NWLR (355) 154, Agbanelo v. UBN, Limited (2000) 4 SC (Pt.1) 233, Punch Nigeria Limited v. Eyitene (2001) 17 NWLR (741) 228, Dumbo v. Idugboe (1983) 7 SCNJL, 29 @ 49, Dina v. New Nigeria Newspapers (1986) 2 NWLR (22) 353 @ 363.

The words complained of by the Respondent as being defamatory are contained in paragraph 6 of the statement of claim dated 12th April, 2002 and thus: –

“There is another angle which has not featured before. In a conversation which were (sic) not classified an off the record, we were told that Sule Ozemua started playing a hard ball because he was settled by A.I.C. If this is true, then Peter Igbinedion who gave A.I.C. 50 years lease of life by signing agreement and information the minister 5 months later must have been HANDSOMELY SETTLED by A.I.C. A.I.C. and suspicion will remain what they are unless a proof is provided.”
How did the Lower Court determine that these words/statement are/is defamatory in the context and circumstances in they were/was made/ published? In the Four and Half (4½) pages judgment, the Lower Court at page 4 thereof (page 318 of the Record of Appeal) had merely concluded that-

“I also find that the statement in the context they were made were under reckless and unwarranted, going beyond proven fact and offering pejorative speculation based on a hazarded premise offered by an unmentioned source. I also find the statement aired, published/broadcast to be responsible on the part of the Defendant. Public interest does not justify pejorative and careless speculation.”

As can easily be observed, the Lower Court did not consider the guidelines judicially established and recognized in the above authorities or any other relevant factors or material facts and circumstances disclosed in the evidence before it in order to make the above finding and reach the conclusion that the words in question were in fact, “rather reckless and unwarranted, going beyond proven fact and offering pejorative speculation” to be defamatory of the Respondent in the context in which they were published. It is clearly simplistic to qualify the words without a clear demonstration of how and the reasons why, by the objective test of reasonable and ordinary person, they would be understood to be defamatory of the Respondent in the context in which they were published/broadcast by the Appellant. I must emphasize that in the determination of whether words used in an action for defamation/libel are in fact defamatory or libelous in the context in which they were used, the test is not subjective or left that the whims of a trial judge/Court to merely conclude, without clearly showing how they impugn, denigrate and disparage the integrity and reputation of the complainant in the estimation of ordinary and reasonable persons, that they are reckless and unwarranted and so defamatory. The apex Court, in Dumbo v. Idugboe (supra) had stated that-

“In determining whether the words are capable of defamatory meaning, the Judge will construe the words to the fair and natural meaning which would be given to them by reasonable persons of ordinary intelligence, and will not consider what persons setting themselves to work to adduce some unusual meanings might succeed in extracting from them.”

See also Salawu v. Makinde (2002) LPELR-123 (CA). Before and in the above conclusion by the Lower Court, there was no interpretation or construction of the words complained of in their fair and natural meaning which reasonable persons of ordinary intelligence would understand and give them in the context in which they were broadcast by the Appellant. The primary and binding duty and obligation of the Lower Court was to consider the words in question along with the relevant and material evidence placed before it, show that in the peculiar circumstances and the context in which they were broadcast by the Appellant, the fair and natural meaning to be given to them by ordinary listeners/watchers of the broadcast by the Appellant is that they tend, in their opinion or estimation, to lower the integrity and reputation of the Respondent in order to conclude that the words are in fact and deed, defamatory of the Respondent. It is not sufficient or enough to simply jump into the conclusion that the words are defamatory or even “reckless or unwarranted, going beyond proven fact” without a clear demonstration in the record of proceedings, of how and on what basis the conclusion was arrived at.

Looking at the words broadcast by the Appellant, in the context of the Report or Programme on the Hotel Project undertaken by the Respondent which was stopped and stalled at the time, particularly the statement that: –

“We were told that Sule Ozenna started playing a hard ball because he was not settled by A.I.C. If this is true, then Peter Igbinedion who gave A.I.C. 50 years lease of life by signing agreement and informing the minister 5 months later must have been HANDSOMELY SETTLED by A.I.C.”, are by their ordinary meaning, intended to show and say that the Respondent had paid bribe or bribery in order to be given “50 years lease of life” to enable it to undertake the Hotel Project.

The imputation of payment of bribe or bribery against the Respondent in the statement is one which raised the allegation of a crime against the Respondent and so defamatory; see Okolo v. Midwest Newspaper

Corporation (supra), particularly since it was admittedly based on unverified suspicion which the Appellant did not honestly believe to be true at the time of the broadcast by the use of the phrase “if it is true”. Undoubtedly the allegation of bribe or bribery against the Respondent in the circumstances and the context of the broadcast would in the estimation and opinion of ordinary listeners/watchers of the programme/broadcast, lower the integrity and reputation of the Respondent in its business relationships. As a company, the statement/allegation of a crime is plainly, naturally and ordinarily defamatory of the Respondent and the law is that defamation is actionable per se and the law presumes damages in favour of the plaintiff/complaint, even in the absence of proof thereof. See Oduntan v. General Oil Limited (1995) 4 NWLR (387) 1; Edem v. Orpheo Nigeria Limited (supra) also reported in (2003) 13 NWLR (838) 57; CRSNC vs. Oni (supra), Vanguard Media Limited v. Olafisoye (supra); Atoyebi v. Odudu (1990) 6 NWLR (157) 384. The Respondent did not therefore have to prove that it suffered any particular loss or damage before it could be awarded damages for the defamation committed against it. The issue is resolved against the Appellant.

Next is the issue by the amount awarded as damages against the Appellant for the defamation.

In the case of Bashorun v. Ogunlewe (2000) 1 NWLR (640) 221, it was held that in case of defamation, the assessment of damages to be awarded does not depend on any legal rules but rather, is governed by the peculiar facts and circumstances of a particular case, on the authority of Atoyebi v. Odudu (Supra). Consequently, the Courts are to consider all the relevant and material facts and peculiar circumstances as disclosed in the evidence for the purpose of assessing the quantum of damages a successful party would been entitled to. However, an award of damages must be adequate to assuage for the injury to the claimant’s reputation and atone the character and pride which were assaulted by the defamation. See Oduwole v. David West (2010) 10 NWLR (1203) 598. In Mamman v. Salaudeen (2005) 1-2 SC (Pt.II) 46, (2005) 18 NWLR (958) 478, the apex Court re-stated the guiding principles and factors to be considered in assessing the quantum of damages in defamation/libel cases as set out in Ejabulor v. Osha (supra) as follows: –

(i) The conduct of the plaintiff;

(ii) His position and standing;

(iii) The nature of the libel;

(iv) The mode and extent of publication;

(v) Conduct of the Defendant,

(vi) Refusal to retract or render apology to the plaintiff. See also Offoboche v. Ogoja LG (2001) 7 SC (Pt.II) 107, Guardian Newspaper Limited v. Ajeh (supra), African Newspapers of Nigeria Limited v. Useni (2014) LPELR-22954 (CA).

Once again, the Lower Court did not mention, let alone consider any of the recognized relevant factors in the assessment of the quantum of damages the Respondent was entitled to for the defamation by the Appellant but, just concluded and decreed that –

“The Plaintiff was defamed egregiously and has cause to seek relief. I award the Plaintiff N160 Million in damages for libel…”

Plainly, there is no attempt at the assessment and no legal basis for the decreed amount awarded as damages for the libel/defamation, in the above conclusion. It is simply, a decree without reason and/or basis.

The law is now firmly settled that an appellate Court would not ordinarily interfere with the award of damages made by a trial Court except in recognized and accepted situations which, broadly put, are

(a) Where the trial Court acted upon wrong principles of law,

(b) Where the award is either so ridiculously too low or too high to make it entirely erroneous in law, and

(c) Where injustice would result if the appellate Court does not intervene and interfere with the award.

See Onwu v. Nka (1996) 7 NWLR (458) 1, Ojini v. Ogo Oluwa Motors Nigeria Limited (1998) 1 NWLR (534) 353, Offoboche v. Ogoja L.G (supra), Gbadamosi v. Dairo (2001) 6 NWLR (708) 137. Akinkugbe v. E.H.N. Limited (2008) 12 NWLR (1098) 375, Cameroon Airlines v. Otutuizu (2011) 4 NWLR (1238) 572.

As stated above, the Lower Court did not assess the quantum of damages in line with the requirement of the law and so did not act under any principle of the law in making the award in the sum awarded as damages.

Taking into account the facts and evidence of the attitude of both the Appellant and the Respondent at the time of the defamation, before and during the trial, the standing of the Respondent as a corporate entity, business integrity and reputation and the position of the Appellant as a public institution charged with the duty and responsibility to the general public, the sum of One Hundred and Sixty Million Naira (N160,000.00) as damages for the defamation against the Respondent is so ridiculously high in the circumstances of the case as to make it an entirely erroneous award in law. In the case of Bashorun v. Ogunlewe (supra) it was held that:-

“It must be remembered that the purpose of awarding damages in a libel case to a successful plaintiff is just to vindicate his good character and reputation. It must not be punitive or aggravated.”

See also Nwaenang v. Ndarake (2013) LPELR-20720 (CA).

The award of the sum of (N160,000,000.00) One Hundred and Sixty Million Naira as damages by the Lower Court is clearly punitive, aggravated, totally unsupportable by the facts and circumstances of the case before it and therefore unsustainable in law. In the premises, the Court is not only entitled to, but has a duty to interfere with it in order to avoid the injustice that was foisted on the Appellant by the award.

I therefore find merit in the arguments of the Appellant that the award of the sum was unreasonable and grossly out of proportion to the defamation of the Respondent.

On the imposition of a penalty in the event of failure on the part of the Appellant to carry out the order to retract the defamatory Statement/Words made by the Lower Court, since the order for retraction was sought by the Respondent and from the evidence before the Lower Court, it was entitled to it, the order was properly and competently made. The imposition of the penalty in the event of failure or refusal by the Appellant to obey or comply therewith, was a consequential one made in order to give effect to the order and ensure compliance therewith. The Lower Court had the requisite competence and power to impose conditions to ensure that the order made by it was complied with and obeyed by the Appellant as a consequence of the defamation committed by the Appellant. The Respondent did not need to seek for it before the Lower Court could impose the penalty which is not in favour or benefit of the Respondent but one simply made to give effect to the order for retraction of the defamatory statement/words.

In the final result, the appeal succeeds in respect of the sum awarded as damages by the Lower Court which is hereby reduced to the sum of Fifty Million Naira (N50,000,000.00) only, as amount of damages the Respondent was entitled to for the defamation by the Respondent. The appeal is allowed in that part.

The appeal fails, in respect of proof of the defamation and the penalty imposed by the Lower Court.

Parties shall bear their respective costs of prosecuting the appeal.

IKYEGH, JCA

I had the privilege of reading in advance the exhaustive judgment prepared by my learned brother, Mohammed Lawal Garba, J.C.A. (Hon. P.J.), with which I agree with nothing extra to add.

NIMPAR, JCA

My learned brother, MOHAMMED LAWAL GARBA, JCA gave me the opportunity of reading In advance the judgment just delivered. I agree with the reasoning and conclusion arrived in the lead judgment. The judgment considered all the issues distilled by the parties and it leaves little room for me to add anything. Having satisfactorily shown that a defamatory statement was made against the Respondent, damages will naturally flow therefrom. In the case of Edem & Anor V Orpheo Nig Ltd & Anor (2003) LPELR- 1006 (SC), the Court held thus:

“…it is not necessary for the corporation in order to succeed to prove that special or general damages occurred once it can show that its reputation or goodwill is injured by the libel.”

I also agree that the award of the sum of N160,000,000.00 (One Hundred and Sixty Million Naira) as damages is totally unjustifiable in the circumstances.

In all, I too allow the appeal in part with respect only to the sums awarded as damages. I abide by the consequential orders made in the lead judgment.

Appearances:

Ekpe Asuquo For Appellant(s)

Lady E. Udoji with him, O. Keshiro For Respondent(s)