IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 13TH DAY OF JULY 2001
OFFOBOCHE ............................................... APPELLANT
OGOJA LOCAL GOVERNMENT AND ANOTHER ................................ RESPONDENTS
BEFORE: Emmanuel Obioma Ogwuegbu; Anthony Ikechukwu Iguh; Aloysius Iyorgyer Katsina-Alu; Umaru Atu Kalgo; Emmanuel Olayinka Ayoola, JJSC
Whether an action arising from alleged libel was barred by Section 2(a) of the Public Officers Protection Law and Section 175 of the Local Government Law of Cross River State?
Whether the defence of qualified privilege was established by defendants facing charges of libel?
The Ministry of Defence had acquired certain land in 974. Part of that land was owned by the appellant, who was given power of attorney over the land by persons representing some of the communities which owned another portion of the land acquired. Subsequently, the Defence Ministry wrote to the Chairman of the Ogoja Local Government Area, Ogoja (the second respondent) asking for confirmation of competence of donors of power of attorney to the appellant in respect of the acquired land. The second respondent confirmed that the donors of power of attorney represented the interest they assumed to represent. However, he later withdrew his confirmation after being informed of allegations of misrepresentation and fraud in the grant of power of attorney to the appellant.
As a result of the above events, the appellants sued the respondents for libel. The libel alleged was said to exist in three documents. Those included the letter in which the allegations of misrepresentation and fraud were made and the second respondent's letter withdrawing his previous confirmation of the appellant's power of attorney. It was alleged that the documents were circulated to a number of people.
Of the various defences raised by the respondents, only two were relevant on appeal. These were that the publications were made on occasions of qualified privilege and that the action was barred by Section 2(a) of the Public Officers Protection Law (Laws of Cross River State).
The trial court awarded damages to the appellant, but the Court of Appeal allowed an appeal by the respondents and dismissed appellant's claim. A further appeal was made to the Supreme Court.
HELD (Unanimously allowing the appeal)
1. On Section 2(a) of the Public Officers Protection Law (Laws of Cross River State)
Section 2(a) of the Public Officers Protection Law (Laws of Cross River State) requires that an action arising from an act done in execution of any law or of any public duty or authority must be instituted within three months of the act complained of. Per Ayoola, JSC, at page 455.
2. On when the cause of action arises in cases of libel
In the case of libel and slander that is actionable, the cause of action accrues from the date of publication. Every publication and re-publication is a separate cause of action.
In the present case, action was commenced on 4 October 1989. Accordingly, any publication of the offending materials within 3 months of that date was not barred by Section 2(a) of the Public Officers Protection Law. Per Ayoola, JSC, at page 455.
3. On the limitation of the protection afforded to public officers by Section 2(a) of the Public Officers Protection Law (Laws of Cross River State)
Abuse of office and bad faith are factors that deprive a party who would otherwise have been entitled to the protection of Section 2(a) of the Public Officers Protection Law, of such protection. The burden is on the plaintiff to establish that the defendant had abused his position or that he has acted with no semblance of legal justification.
As the second respondent was not shown to have acted with malice, or in bad faith, he was entitled to the protection of the Public Officers Protection Law for publications made outside the limitation period specified in that enactment. Per Ayoola, JSC, at page 455.
4. On the plea of qualified privilege
Where in an action for defamation the defendant raises a defence of privilege, he should in the pleadings, aver the facts on which the defence is based. It is not sufficient merely to aver that the defendant pleads the defence of qualified privilege, or to aver that the publication was made on a privileged occasion. Per Ayoola, JSC, at page 455.
Chief Assam E. Assam for the appellant
Paul Erokoro with him Charles Ogon, Miss Ifuse Onigu - Okiti and C. B. Obiri for the respondent
The following cases were referred to in this judgment:
Bendel Newspaper Corporation v Okafor (1993) 4 NWLR (Part 289) 617
His Highness Uyo 1 v Nigerian National Press Ltd & others, In re Felix Egware (1974) NSCC 304
Ibrahim v Judicial Service Committee, Kaduna State (1998) 14 NWLR (Part 584) 1
Lagos City Council v Ogunbiyi (1969) 1 All NLR 297
Lahan v Lajoyetan (1972) 6 SC 190
Momoh v Okewale & another (1977) NSCC 365
Nwakwere v Adewunmi (1966) 1 All NLR 129
Permanent Secretary Ministry of Works etc. Kwara State v Balogun (1975) NSCC 292
Uthi v Egorr (1990) 5 NWLR (Part 153) 771
Yace v Nunku (1995) 5 NWLR (Part 394) 129
Zik's Press Ltd v Ikoku (1951) 13 WACA 188
A-G v Company of Proprietors of Margate Pier & Harbour (1990) KB 749
McCaray v Associated Newspapers (1995) 2 QB 86
Parker v London Country Council (1904) 2 KB 50
T Tilling Limited v Dick Kerr and Co Ltd (1905) 1 KB 562
Uren v John Fairfax (1967) 117 CLR 118
The following statutes were referred to in this judgment:
Local Government Law Cap. 68 Laws of the Cross River State: S 175
Public Officers Protection Law Cap. 111 Law of Northern Nigeria 1963
Public Officers Protection Law (Laws of Cross River State): S 2(a)
The following books were referred to in this judgment:
Libel and Slander (9ed) Gatley at paragraphs 3.8; 18.21
Law of Torts, Salmon and Heuston (20ed) at 159
Ayoola, JSC (Delivered the Leading Judgment):- Sometime in or about 1974, the Federal Military Government through the Ministry of Defence acquired a substantial parcel of land along Okuku-Ogoja Road in Ogoja for the purpose of Ogoja Army Cantonment. The appellant, Dr Mathias Offoboche, who owned a part of the land acquired, was given a power of attorney by persons who, on the face of it, were representatives of some communities which owned another portion of the land acquired. By a letter dated 13 September 1988, the Ministry of Defence ("the Ministry") wrote to the Chairman of the Ogoja Local Government Area, Ogoja asking for confirmation of competence of donors of power of attorney to the appellant in respect of the acquired land. The second respondent, Mr Joseph Oko Agabi, was the Chairman of the Local Government at the material time. By his letter of 21 September 1988, he as the Chairman of Ogoja Local Government, in reply to the request, wrote to the Ministry confirming that the donors of power of attorney represented the interest they assumed to represent. What followed thereafter is the cause of the action that led to this appeal.
By a letter dated 26 September 1988, written by I B Yakubu & Co (Legal Practitioners) and headed "Misrepresentation and Fraud in the matter of grant of power of attorney in respect of compensation due Ukamusha Community", among other things, the legal practitioners conveyed to the Chairman of the Council their clients' demand of an "an urgent retraction by the Chairman of the letter of confirmation written by the Chairman on the basis of the earlier misrepresentation of facts to him." Apparently, they attached to the letter a resolution of the people of Ukamusha Community made on 16 September 1988. By his letter of 27 September 1988 the Chairman of the Council recalled his letter of 21 September 1988 confirming the due grant of power of attorney to the appellant. To the letter he attached:- (i) Power of Attorney granted Barrister Idi Baba Yakubu by the Ukamusha Community; (ii) A resolution of the Ukamusha Community in the matter of power of attorney and payment of compensation; (iii) Power of attorney granted by Ukuku Community to Barrister Gregory Ngaji; and (vi) The resolution of Ukuku Community in the matter of power of attorney and payment of compensation.
By Writ of Summons issued on 4 October 1989, the appellant commenced an action against the Ogoja Local Government and Mr Joseph Uko Agabi, who are now the respondents in this appeal claiming
N50 million being damages for libel and injunction. His Statement of Claim as amended showed that the libel in respect of which he sued was alleged to be contained in three documents, namely:-
(i) Resolution dated 26 September 1988.
(ii) Letter dated 26 September 1988 addressed by I B Yakubu to the Chairman Ogoja Local Government Council.
(iii) The respondents' letter dated 27 September 1988.
It was said that all these documents were published by the respondents to the Minister of Defence, to one Mr C.N.C Nwaya, and to numerous other persons at various times and places between September 1988 and September 1989 concerning the plaintiffs. In the amended Statement of Claim particulars of what was described as "continuous publications" were given as being on (i) 8 June 1989; (ii) 20 June 1989; (iii) 20 July 1989 and 4 September 1989. The re-publication on 4 September, 1989 was said to be by the sole administrator of the Council who was not an original party to this suit and whose joinder was refused by the trial Judge in her ruling of 23 January 1995.
Several defences were raised by the respondents to the action. However, only two of them are pertinent to this appeal. They are that the publications were made on occasions of qualified privilege and that, in any event, the action was barred by Section 2(a) of the Public Officers Protection Law (Laws of Cross River State) ("the Law").
The learned Judge held that while the defence of limitation could avail the second respondent, it could not avail the first which was not a natural person and that, even as regards the second respondent, as he was not acting in course of duty because the publications were actuated by malice which destroyed both the defence of qualified privilege and limitations, he, too, could not claim the protection of the Law. On limitation, the Judge said:-
". . . the action for defamation was taken on 4 October 1989 while the defendants published the offensive document on 20 July 1989 and the sole administrator Sam Inyang published in September 1989 bringing the action within the three months."
On privilege, she found that there was no corresponding interest between the second respondent and the persons to whom he published the offending documents at the public meetings mentioned in the amended Statement of Claim.
Being of the view that the appellant's claim had been established against both respondents, the trial Judge adjudged them liable in libel, awarded damages of
N10 million to the appellant and ordered injunction.
On the respondents' appeal to the Court of Appeal, the three issues raised, that are of any significance in this appeal, related to the limitation question; qualified privilege and quantum of damages. The respondents' appeal was allowed Ejiwunmi, JCA, (as he then was), who delivered the leading judgment of the Court of Appeal held that the defence of qualified privilege was open to the appellants. He held, as the trial Judge did, that duty demanded that the second respondent should forward the offending document to the Ministry of Defence. However, he disagreed with the trial Judge on whether the privilege of the occasion of publication was destroyed by express malice, he not being of the same view as the trial Judge that failure of the second respondent to investigate the matter further as the Ministry had requested amounted to express malice or that any circumstance of actual malice had been proved. In the event, he held that the defence of qualified privilege was open to the second respondent.
Turning to the limitation question, the Court of Appeal held that the action was barred by Section 2(a) of the Public Officers Protection Law and Section 175 of the Local Government Law Cap. 68 Laws of the Cross River State. Ejiwunmi, JCA, (as he then was), observed that in the Writ of Summons it was stated that the action was as a result of the letter forwarded to the Ministry of Defence on 27 September 1988 but that the action was not commenced until 4 October 1989 which was a period of about a year from the date of the accrual of the action.
In regard to damages awarded, the Court of Appeal held that the trial court fell into error when it treated the damage claimed as one to be classified as aggravated damages merely because the appellant as plaintiff had claimed a huge sum of
N50 million. The court below reduced the amount of damages it would have awarded had the appellant succeeded to N50,000. At the end of the day, the Court of Appeal dismissed the claim. This is an appeal from that decision.
In this appeal, several issues were taken by the Counsel on behalf of the appellant. However, the foremost issues which need to be resolved to determine the appeal are whether the defence of qualified privilege availed the respondents; whether the suit was barred by Section 2(a) of the Public Officers Protection Law and Section 175 of the Local Government Law of Cross River State and, whether the court below was right in interfering with and reducing damages awarded by the trial Judge. In view of the admission in the respondents' defence, that a pre-action notice was served on the first respondent, I do not think that any issue of pre-trial notice should be of any significance in this appeal.
It is expedient to start with the question of limitation since if the respondents succeed on that issue that will be the end of the matter. If they succeed even partially, that will help to delimit the scope of the rest of appeal.
Section 2(a) of the Public Officers Protection Law provides as follows:-
"2 Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law duty or authority, the following provisions shall have effect :-
(a) that action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof."
In the case of libel and slander actionable per se the cause of action accrues from the date of publication. Every publication and re-publication is a cause of action. The first publication of the libellous materials in this case was made to the Ministry of Defence on 27 September 1988. In regard to that publication, as rightly held by the Court of Appeal, that was when the cause of action accrued. The appellant alleged, and the trial court found, that the respondents published the offending documents subsequent to that first publication, at public meetings held on several occasions, on 8 June 1989, 20 June 1989, 20 July and 4 September 1989. Each of these re-publications constituted a fresh cause of action. For the purpose of establishing the time when a cause of action accrued in regard to those republications, the time of each publication is the determining factor.
Learned Counsel for the appellant argued that "a single publication of libellous materials by a Public Officer could be statute barred but an action commenced against a continuous publication of the same libellous materials is not statute barred if the last publication was within three months of the commencement of action." This is a confusing and erroneous way of stating the applicable principles. The essence of libel is that the libellous material exists in permanent form. It is thus essentially continuous in existence. However, its publication is a different matter. What exists in a permanent form is not "published" until it is made known. Every time it is made known to another, publication takes place. Although a person who has knowledge of the contents of a matter continues in that knowledge, for the purpose of the law of defamation, it is the initial knowledge that the law takes account of as publication. Each time he reads and re-reads a libellous material to himself it does not amount to a fresh publication. There is no concept of "continuous publication" in the law of defamation. Every publication and republication is complete in itself in founding a cause of action. A party, who alleges one single publication and makes that the foundation of his cause of action, cannot extend the period of accrual of cause of action merely by pleading further publications in respect of which he has not sued. The law is well stated in Gatley on Libel and Slander (9ed) thus at paragraph 18.21:-
"Each and every publication of a libel gives a distinct and separate cause of action, and an action may be brought against the publisher within the limitation period thereafter, although by reason of the lapse of time no action would lie for the original publication."
The learned authors of Gatley (op cit) illustrated this point with the case of Duke of Brunswick v Harmer (1849) 14 QB 185 which was the case cited by learned Counsel for the appellant. In that case it was held that time began to run from the date the issue of the paper containing a libellous material was purchased, notwithstanding that the original publication was made 17 years earlier.
The Court of Appeal proceeded, in error, on the footing that the cause of action in this case was founded solely on the publication made to the Ministry of Defence on 27 September 1988. That error was because it overlooked the amendment to the Statement of Claim whereby the appellant had claimed the same single lump sum as damages for several publications of the same libellous materials, and, consequently, for several causes of action. The propriety of claiming a single sum is not in issue. It is right and, not subject to any reasonable controversy that a Statement of Claim supercedes the Writ of Summons: see Lahan v Lajoyetan (1972) 6 SC 190. The Court of Appeal having overlooked the amendment to the claim as endorsed on the Writ of Summons, effected by the amended Statement of Claim proceeded on an erroneous footing in determining the accrual of the cause of action with reference to only one of several causes of action involved in the case.
The action having been commenced on 4 October 1989, any publication of the offending materials within 3 months of that date is not barred by Section 2(a) of the Public Officers Protection Law. Thus, while the causes of action in regard to publications made on 27 September 1988, 8 June 1989 and 20 June 1989 did not arise within the limitation period prescribed by the Public Officers Protection Law, the causes of action founded on the publications made on 20 July 1989 and 4 September 1989 arose within the limitation period. Of these two, the second respondent was only concerned with the former.
In so far as the claim related to the causes of action founded on the publications made other than on 20 July 1989 and 4 September 1989, it is statute-barred. In this wise (sic), as far as the second respondent is concerned, what needed be considered was his liability for the materials published on 20 July 1989. The liability of the first respondent deserves a slightly different consideration.
Before I consider the liability of the second respondent in regard to the publication made on 20 July, 1989, I dispose of the argument that since the second respondent was actuated by express malice, he was not entitled to the protection of the Public Officers Protection Law because he would then not have been acting in good faith. The Court of Appeal did not find express malice established.
I agree with them. In Nwakwere v Adewunmi (1966) 1 All NLR 129 at 133-134 Brett, JSC, said:-
"The law is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal publication."
In Lagos City Council v Ogunbiyi (1969) 1 All NLR 297, 299 this Court, per Ademola, CJN said:-
". . . the Act necessarily will not apply if it is established that the defendant had abused his position for purpose of acting maliciously. In that case he has not been acting within the terms of the statutory or other legal authority. He has not been bona fide endeavouring to carry it out. In such a state of facts he has abused his position for the purpose of doing wrong, and the protection of this Act, of course, never could apply to such a case."
Abuse of office and bad faith are factors that deprive a party who would otherwise have been entitled to the protection of Section 2(a) of the Public Officers Protection Law, of such protection. The burden is on the plaintiff to establish that the defendant had abused his position or that he has acted with no semblance of legal justification. Evidence that he may have been overzealous in carrying out his duties or, that he had acted in error of judgment or, in honest excess of his responsibility, will not amount to bad faith or abuse of office. Abuse of office is use of power to achieve ends other than those for which power was granted, for example, for personal gain, to show undue favour to another or to wreak vengeance on an opponent, to mention but a few.
Malice, that, on the other hand, would defeat the defence of qualified privilege relates to the use of the occasion of publication of libel for some indirect purpose. The law has been put thus:-
"If the occasion is privileged it is so for some reason, and the defendant is only entitled to the protection of the privilege if he uses the occasion for that reason. He is not entitled to the protection if he uses the occasion not for the reason which makes the occasion privileged, but for an indirect or wrong motive."
See, generally, for this proposition and others described in like terms, Gatley on Libel and Slander (op cit) paragraph 16-4 and cases cited therein. An inquiry whether there is express malice as would defeat a defence of qualified privilege proceeds on an assumption that the occasion was privileged. The misuse of the occasion is malice that destroyed the privilege.
It is expedient to note that where the occasion is not privileged, an inquiry whether or not there is express malice is not necessary. It is where the occasion is privileged, in the first place, that the court should venture to consider the question of express malice if such is raised by the reply of the plaintiff in answer to a defence of qualified privilege. There will be confusion of issues where, as the trial court and the court below tended to do in this case, the question of malice has been confused in places with the question whether the occasions of the publications were privileged.
The issue to which I now revert, whether in this case there was malice such as deprived the second respondent of the protection of Section 2(a) of the Law, is a different question from a question whether actual malice had cancelled the privilege of the occasion. A person who claims the protection of Section 2(a) of the Law does not need to establish a defence of qualified privilege in order to succeed in his plea that the action is statute-barred. The authorities of Uthi v Egorr (1990) 5 NWLR (Part 153) 771; Bendel Newspaper Corporation v Okafor (1993) 4 NWLR (Part 289) 617 and Nwankwere v Adewunmi (1966) 1 All NLR 129 relied on by the appellant's Counsel are not apart. In Bendel Newspaper Corporation v Okafor (supra) the majority of the Court of Appeal, Uwaifo JCA (as he then was dissenting) implied in the leading judgment of the Court of Appeal, delivered by Akintan, JCA, that once a defendant did not deny the standard averment in an action for libel that the defendant falsely and maliciously published or caused to be published falsehood about him, that amounted to admission of malice which would remove the protection of the Public Officers Protection Act. In that case the defendant claimed the protection of the Act in limine before defence was filled (sic). If that case can in any way be said to have decided that once a publication of libellous material is admitted protection of the Act is withdrawn, I would differ from such a conclusion. It would have been arrived at in disregard of the distinction between implied malice and express malice. I am of the view that the dissenting judgment of Uwaifo, JCA, (as he then was) explained the proper position better.
The facts of Nwankwere's case (supra) showed that what was in issue in that case was a clear abuse of power such as had not been found in this case.
In my judgment, the second respondent is entitled to the protection of the Public Officers Protection Law for publications made outside the limitation period specified in that enactment. He had neither abused his office nor acted in bad faith in performance of what he perceived to be the duties of his office. That his successor in office, the Administrator of the Local Government, carried on from where he stopped, leads to the reasonable inference that both of them reasonably believed that the steps they took in the matter were justified by the responsibilities of the office.
In regard to the publication made on 20 July 1989 the averment is clear in paragraph 25A(iii) of the amended Statement of Claim that the second defendant recklessly published the libel to the persons therein mentioned. The respondents did not respond to this averment other than by the general traverse in the original and only Statement of Defence. They did not claim any privilege for this publication and if the defence of qualified privilege raised in the un-amended original Statement of Defence could have been relied upon, it was lacking in particulars as to facts and circumstances on which such privilege was claimed. Where in an action for defamation the defendant raises a defence of privilege, he should, as a matter of pleadings, aver the facts on which the defence is based. Gatley (op cit) paragraph 27.18 stated the law thus:-
"If it is clear, on the face of the Statement of Claim, that the occasion was absolutely privileged, it is sufficient to plead that the Statement of Claim discloses no cause of action. But otherwise the defendant must plead the facts on which he relies as given rise to the privilege, whether absolute or qualified. In the absence of such plea, the defendant cannot adduce any evidence at the trial to establish such a defence, nor cross-examine the plaintiffs' witnesses with a view to a submission that the occasion was privileged."
It is not sufficient merely to aver that the defendant pleads the defence of qualified privilege, or to aver that the publication was made on a privileged occasion. The respondents did not give evidence and were thus unable to supply the deficiency by their evidence. In the result, the question put by the trial Judge was left unanswered when she asked:-
"What corresponding interest or duty did second defendant owe to this various groups to who he repeatedly published these offensive documents?"
For his part, Ejiwunmi, JCA (as he then was) delivering the leading judgment of the court below said:-
". . . the appellants had not sought to defend their conduct with regard to the publications of the offensive documents to several other persons at a public meeting."
I hold that he was right in this conclusion. The error in the judgment of the court below was in not holding that, in those circumstances the trial court rightly held that the second respondent was liable for the publications of the libellous materials on 20 July 1989, barring other viable defence.
In this appeal, learned Counsel for the respondents attempted an alternative defence when he argued that to read out a libellous material to another is slander and not libel. He relied on a passage in Law of Torts by Salmon and Heuston (20ed) page 159. However, in Gatley (op cit) at paragraph 3.8, page 72, it is stated that:-
". . . the current English view is that to read out a defamatory letter or script to an audience is libel, and that is so regardless of whether the audience realises that the defamatory matter is being read, though in Australia it has been said the perception of the audience is decisive. Either view might perhaps be justified on the basis that the document was a potential libel and any method of disseminating it should carry the same liability but this seems inconsistent with the fact that the gist of defamation is publication. It can hardly be the law that if one learns a defamatory passage by heart from a document and repeats it, one commits libel."
We still cling to the distinction between slander and libel, which in my view should long have been discarded with. Be that as it may, the Australian perspective is preferable, in my opinion. Where the defamatory material in writing is published by reading it to the audience and the audience perceived that what was being said was read from a document that should be libel as much as where the document was passed round to be read by each member of the audience. Considerations of justice should not permit a distinction to be drawn for the purpose of formulation of a cause of action between documents being passed round to be read by each and one being read to the hearing of all. If any distinction is to be drawn, it should, in my opinion, be limited to the question of damages, since a person to whom a libellous material has been given has an opportunity to read and re-read it which someone to whom it was merely read has not got.
The evidence accepted by the trial Judge in this case shows that the witnesses to whom the defamatory materials were read knew that they were read from what was written. Such publication was in my opinion libel and not slander.
I turn to the liability, if any, of the first respondent. Learned Counsel for the appellant has argued that contrary to the view held by the court below, the first respondent, an institution, could not rely on the defence of limitation under the Public Officers Protection Law.
The question whether the Public Officers Protection Law applies to institutions is not being raised for the first time in this Court. In the recent case of Ibrahim v Judicial Service Committee, Kaduna State (1998) 14 NWLR (Part 584) 1, this Court held that "any person" in Section 2(a) admits and include artificial persons. Iguh, JSC, at page 36 in that case said:-
". . . it seems to me plain that the definition of the word 'person' in the legal sense under the Nigerian Law is not limited to natural persons or human beings only as the appellant now vigorously appears to contend. It clearly admits and includes artificial persons such a corporation sole, company or any body of person corporate or incorporate."
In his own opinion Wali, JSC, said at page 49:-
"The provision did not use the word 'officer', but instead the word 'person'. In my view, the purpose of using the word 'person' is obviously to widen the scope of the law to cover both human being and legal or artificial person such as corporate and unincorporated. Without referring to any foreign decision, the intention of the legislature is to provide protection for public officers, corporate and unincorporated bodies in the discharge of their public assignment. . . Used in the wide sense, the term 'any person' will cover both human being and other bodies, corporate and unincorporated. . ."
Kutigi and Onu, JJSC were of the same view. However, there was a considered dissent by Ogundare, JSC, he being of the view that person in Section 2(a) must be read in its plain ordinary meaning as "a human being as an individual."
There was an earlier decision of this Court in Momoh v Okewale & another (1977) NSCC 365, sometimes claimed to have decided the contrary to the majority view in Ibrahim's case. However, the ratio in Momoh's case was limited to whether or not a Lagos City Council bus driver was a 'public officer' in the context of the Public Officer's Protection Act Cap. 108. Udo Udoma, JSC who delivered the leading judgment of the court in that case after referring to the English cases of T. Tilling Limited v Dick Kerr and Co Ltd (1905) 1 KB 562; Attorney-General v Company of Proprietors of Margate Pier & Harbour (1990) KB 749 and Parker v London Country Council (1904) 2 KB 501 did not actually come to the conclusion urged by the appellant in this case. In the earlier case of Permanent Secretary Ministry of Works etc. Kwara State v Balogun (1975) NSCC 292, this Court seemed to have decided that persons in Section 2(a) included artificial persons. There was a statement by Iguh, JSC in Yace v Nunku (1995) 5 NWLR (Part 394) 129, 151 that the Public Officers Protection Law (Cap. 111) Law of Northern Nigeria 1963, as its name implies, is a law to protect public officers as individuals in the discharge of their public duties, but that was a passing remark and was an obiter dictum, even though reliance for the remark was placed on Momoh's case (supra).
Ibrahim v Judicial Service Committee Kaduna State (supra) is a clear pronouncement on the point raised by Counsel to the appellant on the applicability of Section 2(a) of the Public Officers Protection Law to the first respondent. Notwithstanding the powerful dissent of Ogundare, JSC in that case, it remains authority which this Court is enjoined to follow. We have not been invited to depart from it. This Court will not depart from its previous decision merely on the basis of a powerful dissent. In any event, the appellant's argument in relation to the particular issue had been token and perfunctory and hardly deserves the consideration that has been given to it in this judgment. I hold that the protection of the law is available to the first respondent, notwithstanding that it is an artificial person. In the circumstances, I hold that the action is barred against the first respondent except in regard to the publications of 20 July 1989 and 4 September 1989.
I add, merely as post-script, that the cases referred to in this judgment concerning the limitation question related to statutes with provisions couched in identical terms as Section 2(a) of the law.
There was no real defence to the publications of the libellous materials on 20 July and 4 September 1989. It is not for a court to speculate what defences may have been available to a defendant upon a diligent presentation of his case. The publications in this case were admittedly libellous of the appellant. Circumstances of privilege were not pleaded. In the result, the first respondent too should have been held liable to the appellant for the two publications. It has not been denied that the Local Government was a joint tortfeasor with the first respondent. In the result, I hold the two respondents liable for the publication of 20 July 1998; and, the second respondent alone liable for that of 4 September 1989.
The appellant had claimed a single award of damages for several causes of action. In this case in which the respondents were liable for only a few of the libels proved and not entirely for the same instances of libel, separate awards are called for. There is no doubt that damages to be awarded have now become at large. The Court of Appeal had rightly interfered with the award of damages of
N10,000,000 made by the trial Judge which in all the circumstances of the case was so palpably outrageous and excessive as to be unreasonable. The Court of Appeal reduced the damages to N50,000. But it, too, proceeded on the footing that there was only one libel and that that was the one constituted by the publication made to the Minister of Defence.
In these circumstances, this Court is entitled to consider the issue of damages afresh. The general principle in relation to the approach of the appellate court to award of damages by the trial court is that the appellate court should be reluctant to exercise the power of review of such award and attempt to re-assess the amount which the trial Judge has given unless the award was made on wrong principles or is inordinately low or excessive. (See Zik's Press Ltd v Ikoku (1951) 13 WACA 188 at 189). However, this case is not merely one of re-assessing the damages made by the trial Judge or the Court of Appeal since those several awards were based, in the case of the trial court, on libels which included those for which the respondents should not have been found liable, and in the case of the court below, on an assumption that the claim related to only one libel.
This Court is left to be guided in determining what damages to award by the general principles for award of damages in an action for libel. A succinct statement of those principles is in the judgment of this Court in His Highness Uyo 1 v Nigerian National Press Ltd & others, In re Felix Egware (1974) NSCC 304, where Coker JSC said at page 307:-
"Whatever method of assessment is employed, a great part of the exercise of assessment must be arbitrary but the entire exercise must at all stages have reference to the evidence in the case and the subject-matter of the action. Such an award must be adequate to repair the injury to the plaintiffs reputation which was damaged; the award must be such as would atone for the assault on the plaintiff's character and pride which were unjustifiably invaded; and it must reflect the reaction of the law to the imprudent and illegal exercise in the course of which the libel was unleashed by the defendant."
These are broad guidelines. Nothing can be more intangible than a man's reputation, dignity or feelings, injury to which forms the essence of the tort of defamation. The general theory that damages are compensatory and are awarded on the basis of restitution breaks down when faced with the truth that it is almost a fiction that money can be used to restore a man's injured reputation, or dignity to its former condition. I venture to think that a more realistic rationale for the award of damages for injured reputation, where the claim is for non-pecuniary loss, is as said by Windayer, J in Uren v John Fairfax (1967) 117 CLR 118 at page 150 that:-
". . .a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation. . ."
To the extent that the person who has injured him in his reputation must pay for the injury that the plaintiff has suffered, there is an element of compensation in the award of damages made, but that is usually not on the basis that such would restore the plaintiff to the position he was before he was defamed, as if he had not been defamed, where the injury he has suffered did not lead to pecuniary loss.
That the appellant in this case has acquired a good reputation and dignity and that he had by the libels been injured in his reputation, dignity and feelings, there can be no doubt. His claim for damages are for non-pecuniary loss consequent on the injury to his reputation. No doubt the appellant has suffered some degree of loss of social esteem by being associated with alleged forged document, although there was no allegation that he was accessory to any such forgery. The injury to his feelings is manifested by his efforts to clear his name by the protest letters that he wrote and his general psychological reaction to the entire incident. The natural grief and distress to which he may have been put by libellous publications are elements that fall to be taken into account. (See Mc Caray v Associated Newspapers (1995) 2 QB 86, 104-105.)
The only mitigating factor, as I see it, is that the respondents genuinely believed that they were mediating a dispute. Even though that fact did not come out clearly in evidence sufficient to make the occasion of the several publications (not statute barred) privileged, yet it is a proper factor to take into account. It needs to be stated that, that a party had committed libel in the course of performing his official duty may not exonerate him from liability for libel unless the occasion of the publication was privileged. In this wise, the submission by Counsel for the respondent that:- "No man should be held liable for libel just because he performed his official duty, even if in doing so, he was guilty of an error of judgment", is an appeal to sentiment rather than to law. What may be acceptable is that an error of judgment in such circumstances may be a mitigating factor.
In the final analysis, it is for the court, guided by established principles, after taking into consideration all the circumstances of the case, to award what is proper and just. Doing so, I think awards of
N50,000 being damages against the first defendant alone for libel published on 4 September 1989 and N50,000 against both respondents jointly and severally for libel published on 20 July 1989 are appropriate.
In the result, I allow this appeal and set aside the judgment of the Court of Appeal whereby the judgment of the High Court was set aside and a judgment dismissing the appellant's claim in its entirety was entered against the appellant. The appellant's claim succeeds in respect of libel based on publications made on 20 July 1989 and 4 September 1989. The award of damages of
N10,000,000 being for more than these two publications is erroneous and is in any event excessive in the circumstances. The award of damages is accordingly varied as follows:- N50,000 is awarded against the first respondent alone being damages for libel published of and concerning the appellant on 4 September 1989 and N50,000 against both respondents jointly and severally being damages for libel published on 20 July 1989.
The appellant is entitled to costs of the appeal which I assess at
Ogwuegbu, JSC:- I have had the privilege of a preview of the judgment just delivered by my learned brother Ayoola, JSC. I agree with the reasoning and the conclusions reached in the said judgment.
Accordingly, I will allow the appeal and abide by all the orders contained in the said judgment of my learned brother Ayoola, JSC including the order as to costs.
Iguh, JSC:- I have had the privilege of reading in draft the judgment just delivered by my learned brother, Ayoola, JSC and I agree with his reasoning and conclusions.
For the same reasons he has lucidly given, I, too, will allow this appeal and abide by all the consequential orders, including those as to costs, therein made.
Katsina-Alu, JSC:- I have had the advantage of reading in draft the judgment of my learned brother Ayoola, JSC. I agree with it and for the reasons which he gives I, too, would allow the appeal and make the awards of
N50,000 being damages against the first respondent alone for libel published on 4 September 1989 and N50,000 against both respondents jointly and severally for libel published on 20 July 1989. I also award N10,000 costs to the appellant.
Kalgo, JSC:- I have read in advance the judgment of my learned brother Ayoola, JSC just delivered and I entirely agree with his reasoning and conclusions in the appeal which I adopt as mine. He has also fully dealt with the issues which arose in the appeal and I have nothing useful to add thereon. In the circumstances, I also allow the appeal to the extent set out in the leading judgment and abide by the consequential orders made in the judgment including the order of costs.
The appeal was allowed.