⦿ CASE SUMMARY OF:
Olorunfemi Basorun & Ors v. Dr. Akinola Ogunlewe (1999) – CA
⦿ LITE HOLDING
Damages flow naturally once defamation is proved.
⦿AREA OF LAW
– Law of Tort.
Olorunfemi Basorun & Ors.
Dr. Akinola Ogunlewe
(1999) JELR 43736 (CA)
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– Mr. Tokunbo Onagoruwa.
* FOR THE RESPONDENT
– Mr. Sesan Sobowale.
⦿ FACT (as relating to the issues)
The respondent (as plaintiff at the Trial Court) sued the Appellant (as defendant at the Trial Court) for using the following words in a publication in regards to him being the Director of the National Insurance Corporation of Nigeria PLC up to 1993 and at the times material to the cause of action, the Chairman of the Board of Directors of Igbogbo Community Bank of Nigeria Limited, Igbogbo, Lagos State: “Ploy to postpone the Annual General Meeting because the Chairman is probably begging for time to enable him acquire sufficient shareholding to retain his membership of the Board.”
He sued for ten million naira damages for libel. The Trial Court after consideration of the several claims awarded the sum of six million naira to the plaintiff.
The defendant as appellant herein has appealed.
1. Whether the words complained of by the plaintiff were published by the defendants/appellants?
2. Whether the words complained of in Exhibit B are defamatory of the plaintiff?
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: ALLOWED, IN PART]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. Having held that publication was established I shall now go to the second issue which is whether the words complained of in Exhibit B are defamatory of the plaintiff. Let me say that the words complained of are not only capable of referring to the plaintiff, they in fact and in truth refer to him.
ii. Reading the entire words together, a duty which the law imposes on a judge interpreting the words see Katto v. CBN (1999) 6 NWLR (Pt. 607) 390, the irresistible conclusion one can reach is that the Chairman (the plaintiff/respondent) authored the letter with the selfish view of grabbing for himself sufficient shareholding that would sustain his membership of the Board. The words portray the plaintiff/respondent as a manipulator a trickster with insatiable lust for materialism and position. By that behaviour no reasonable man should trust him; indeed he should be held as not being fit to be in the comity of decent people or men of good character. The words portray him as a man who should never be trusted. Undoubtedly, the conglomeration of the words employed in Exhibits A and B covered the plaintiff/respondent in the estimation of reasonable people; they are defamatory of his person.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
In Dino v. New Nigerian Newspaper (1986) 2 NWLR (Pt. 22) 353 it was held that in determining whether certain words are defamatory or not the duty of the judge is to apply a reasonable man’s test; whether the words are capable of defamatory meaning in the minds of reasonable people in the circumstances of the particular case. The duty of the trial court to make a ruling, in law, whether the words in questions are capable of carrying a defamatory meaning or not is not negotiable. And if the words are adjudged to be incapable of carrying a defamatory meaning, of course, that is the end of the case, at that stage. The exercise which the trial judge is invited to undertake here is nothing but an interpretation of the words complained of.
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
Publication of a defamatory statement is an essential element of the cause of action in libel cases. Once it is shown that publication has not been properly pleaded and proved an action founded on defamation must fail. And publication is the act of making the defamatory statement known to any person or persons other than the plaintiff himself. – Aderemi, JCA. Basorun v. Ogunlewe (1999)
Again, when a defendant avers as his defence that the comment is a fair one he is saying no more than that the story was based upon true facts which were in existence when the comment was made. This is so because before a comment can be said to be fair the truth of the facts upon which it is predicated must first be established. – Aderemi, JCA. Basorun v. Ogunlewe (1999)
For the law does not permit a person to invent untrue facts or stories about a man and then comment upon them. In other words, the defence of fair comment will avail the defendants/appellants in the present action if they can show that they had only, in good faith, expressed their opinion based on facts truly stated on a matter of public interest. The third defence is that of qualified privilege; to succeed, the defendants/appellants must show that they have an interest or duty whether legal, social or moral to make such comment to a person who has a corresponding interest or duty to receive it; the inference of malice is thus destroyed. But where there is evidence of actual or express malice the defence of qualified privilege is totally destroyed. – Aderemi, JCA. Basorun v. Ogunlewe (1999)
Indeed, the law is firmly established that every libel is of itself a wrong in regard to which general damages are imputed. It follows that damages need not be proved in an action for libel. – Aderemi, JCA. Basorun v. Ogunlewe (1999)
There is ample evidence, on record, to show that the appellants’ conduct to the publication was one of indifference, no retraction and the averments in the statement of defence portray nonchalance. The suit was filed in 1994 while judgment awarding the sum of Six Million Naira was delivered in 1997. Of course, the plaintiffs claim was for Ten Million Naira. Notwithstanding this, I say the award of Six Million Naira is too high; it is outrageous. There is nothing on the printed record to justify such a high award. 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 or reputation. It must not be punitive or aggravated. In fact the plaintiff has not claimed aggravated or exemplary damages, all he claimed is general damages. Following the principle laid down in the Elf Nig Ltd. case cited supra. I am of the view that Two Hundred and Fifty Thousand Naira (250,000.00) would have been a just award. – Aderemi, JCA. Basorun v. Ogunlewe (1999)
An action for libel is aimed at vindicating the character of the plaintiff. It is true that once a publication is proved to be libelous, the law presumes damage. – Nzeako, JCA. Basorun v. Ogunlewe (1999)