RODERICK NWANKWO OKOROJI (APPELLANT)
NWAFOR EZUMAH (RESPONDENT)
(1961) All N.L.R. 191
Division: Federal Supreme Court
Date of Judgment: 5th April, 1961
Case Number: FSC 103/1960
Before: Ademola, C.J.F.
Plaintiff sued a close relative for damages for libel. The Trial Judge found the libel proved and awarded £50 damages, which, he stated, was less than he otherwise would have awarded. His reason for the low award was that the parties were close relatives and it would be invidious further to exacerbate feelings between them by assessing heavy damages.
The Trial Judge further refused to make an order for plaintiff's costs because of the absence of plaintiff's Counsel when Judgment was delivered. The plaintiff appealed. On appeal:-
(1) In depriving the successful plaintiff in a Libel case of his full damages because the parties were relatives the Trial Judge proceeded upon a wrong principle of law:
(2) The appellate court has power to review and to re-assess damages awarded by the Trial Judge where that judge in assessing the same proceeded upon a wrong principle.
(3) The absence of Counsel for a successful litigant when Judgment is delivered is not a valid ground for depriving that litigant of his costs. While the Trial Judge has discretion in the matter of costs, he must exercise it judicially, and ought not to exercise it against the successful party except for some reason connected with the case. The absence of Counsel at Judgment was not such a reason.
Appeal allowed. Award of £50 damages set aside and £100 damages substituted therefore. Costs of lower Court and Appeal granted to the appellant.
Cases referred to:
Zik's Press Limited v. Alvan Ikoku, 13 W.A.C.A. 188.
Campbell (Donald) & Co. v. Pollak (1927) A.C.811; 96 L.J.K.B. 1132; 137 L.T.656; 43 T.L.R. 787.
APPEAL from the High Court of Lagos.
Adejonwo for Appellant.
Lardner (with him Miss Williams) for Respondent.
Taylor, F.J.:-This is an appeal on the quantum of damages awarded to the plaintiff/appellant by Onyeama, J. of the High Court of Lagos, in an action for damages for libel.
The learned Trial Judge in his Judgment held that the publication was libellous in these words:-
I am of opinion that the telegraph was an unnecessarily wide method of communication in this case. On the defendant's own showing there was no urgency about the matter, and if, as I find, the 1953 episode did not in fact, take place, then there was not a grain of truth in the allegations contained in the telegram and the defendant cannot claim privilege to tell a deliberate and damaging falsehood about another.
He then went on to say as follows, and this is the passage in the Judgment complained of by learned Counsel for the appellant:-
In assessing damages I take into account that the parties are closely related and that it would be invidious further to exacerbate feelings between them by awarding heavy damages.
A Trial Judge in an action for libel may receive evidence in aggravation or mitigation of damages, but nowhere have I been able to find authority for depriving a successful plaintiff of his full damages on the score of his close relationship with the defendant. The principle on which an appellate Court will act in reviewing the damages awarded by a Lower Court is well illustrated in the case of Zik's Press Limited v. Alvan Ikoku 13 W.A.C.A. 188 at189, where Lewey J.A. said that:-
But it is equally clear that the appellate Courts are very reluctant to exercise this power and to attempt to re-assess the amount of damages which the Trial Judge has given, and that they will never do so unless it can be established that at the Trial the Judge proceeded upon a wrong principle of law or that his award was clearly an erroneous estimate, since the amount was manifestly too large or too small.
There can be no doubt that in the passage of the Judgment to which I have made reference the Trial Judge is in effect saying this-"I would have awarded a larger sum as damages but for the fact that the parties are closely related, and I do not wish to further aggravate the ill-feeling existing between them." The relationship of the parties is not in my view a circumstance to be taken into account in depriving a successful party of the full sum to which he is entitled as damages in an action for libel.
For these reasons I would allow this appeal and set aside the award of £50 damages, and in its place award the appellant the sum of £100.
On the question of costs the Trial Judge made the following order:-
Plaintiff's Counsel is absent and no application is made for costs. There will therefore be no order as to costs.
I think it is time to make it clear that the absence of Counsel for the successful party on the day on which Judgment is delivered is no ground for depriving the litigant of his out-of-pocket expenses and his costs of the action. The general rule is that costs follow the event, though the Trial Judge has a discretion in the matter. Viscount Cave L. C. puts it in these words in the case of Donald Campbell & Co. v. Pollak 1927 A.C. 811:-
...the court has an absolute and unfettered discretion to award or not to award them. This discretion, like any other discretion, must of course be exercised judicially, and the Judge ought not to exercise it against the successful party except for some reason connected with the case.
There was no such reason for depriving the appellant of his costs in this matter. He is entitled to both his costs in the lower Court, which I assess at 40 guineas, and in this Court, which I assess at 30 guineas.
ADEMOLA, C.J.F.:- I concur.
BAIRAMIAN F.J.:- I concur.