⦿ CASE SUMMARY OF:
Vanguard Media Limited & Ors. v. Otunba Adebiyi O. Olafisoye (2011) – SC
⦿ LITE HOLDING
Comments not based on true facts cannot be fair comments in law.
⦿AREA OF LAW
– Law of Torts
– Fair comment.
1. Vanguard Media Limited
2. Mr. Kunle Oyatomi
3. Mr. Sam Amuka-Pemu
4. Alhaji Kola Animasaun
1. Otunba Adebiyi O. Olafisoye
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Clara Bata Ogunbiyi, J.C.A.
* FOR THE APPELLANT
– Mr. A. Adedoyin.
* FOR THE RESPONDENT
– Miss N. A. Chibututu.
⦿ FACT (as relating to the issues)
The action was commenced by the Respondent/Claimant against the Appellants/Defendants by a writ of summons dated 19th July, 2002 and a statement of claim dated 8th day of July, 2002. In the writ of summons and the statement of claim the Respondent/Plaintiff at pages 77 and 78 of the record claimed against the defendants jointly and severally as follows:
(a) The sum of N100, 000, 000.00 (one Hundred Million Naira) being general damages suffered by the plaintiff on account of the malicious and libelous publication by the Defendants of an Article captioned; “This man could commit murder” in the 8th July 2001 edition of the Sunday Vanguard, which was widely and extensively sold and distributed all over Nigeria, overseas and more particularly in Lagos within the jurisdiction of this Honourable Court;
(b) The sum of N100, 000, 000.00 (one Hundred Million Naira) being damages for the libel of the plaintiff by the malicious And false publication by the defendants of an Article captioned: “so, ignorance is expensive!” in the 19th August 2001 edition of the Sunday Vanguard, which was widely and extensively distributed and sold all over Nigeria and overseas and more particularly within the jurisdiction of this Honourable court.
(c) The sum of N100, 000, 000.00 (one Hundred Million Naira) being aggravated damages for the repeated publication of libel against the plaintiff by the defendants.
(d) An order of perpetual injunction restraining the defendants, their servants, agents or privies from further writing, printing, publishing or causing to be written, printed or published the aforesaid Articles or words used therein or similar words defamatory of the plaintiff.
The Trial Court granted judgement in favour of the Plaintiff/Respondent, but awarded N10,000,000 as damages.
The Defendant/Appellant being dissatisfied has appealed to this Court of Appeal.
1. Whether the Respondent/claimant has successfully proved his case for defamation as to entitle him to judgment.
2. Whether the defence of fair comment raised by the Appellants/Defendants can avail them.
3. Whether the Appellants/Defendants have successfully proved their counter claim against the Respondent/claimant.
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. A reproduction of certain excerpts of the publication even at the risk of repetition read as follows:
Olafisoye’s madness lasted more than momentarily”; “I will kill you, just be sure of it; Olafisoye can kill I understand he is a multimillionaire and in these perilous times when death has become two for half a penny, he can afford the contract a million times over,” “Pathological murders.”
The interpretation of the foregoing publication, prima facie ‘and as rightly concluded by the learned trial judge shows from the mind of a reasonable man that the claimant as referred to in the publication was somebody capable of killing people and could easily get away with any of such heinous crimes by virtue of his influential position in the society.
ii. With due reference to the evidence by all the claimant/respondent’s witnesses and indeed those of the defendants/appellants, the terrain for soft landing would in my view stem to lean towards a favourable conclusion to the respondent. This is not far fetched especially in the light of the evidence of the witnesses PW1, PW2 and PW3 supra and even those of the defendants/appellants wherein the question of publication of the article as pleaded is not in controversy. The reference being made to the Respondent who was clearly named cannot also be denied. On whether or not the words are defamatory, the definition of a defamatory publication would be relevant. In other words, by the use of the words against the respondent as stated in the publication wherein he is described as a murderer and to whom insanity was ascribed, would surely in the eyes of a reasonable man, to whom such publication was made, greatly subject him to derogation and contempt. The question of publication to a third party is also sacrosanct wherein PW1, the librarian, in his evidence for instance testified that the newspaper publication “The Sunday Vanguard” is widely circulated in Nigeria. In his evidence PW3 was surprised and saw it relevance to take up the injurious publication further and thus advised the claimant to consult his lawyers. The witness was not cross examined as to why he was surprised.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. It is pertinent to state that the defence of fair comment or any other could only and appropriately arise after the court must have decided that the words complained of are defamatory in nature and of the plaintiff. In other words, there cannot be fair comment in the absence of defamatory words.
ii. On the authority of the foregoing it is apparent that for the defence of fair comment to succeed, the defendant has the onus to show that the publication is in fact a fair comment upon some matter of public interest. It must also be uncompromised that the facts on which the comments are based must be true.
iii. It is not on record that the claimant/respondent was ever convicted of a crime to warrant a conclusion that he could commit murder. No evidence also avail that he had ever been sent for psychiatric evaluation. At least the appellants did not produce any such indictment to beef up their defence. In the circumstance, I hold a strong view that the appellants’ claim which is bordered on the life or security of lives of fellow Nigerians cannot as wrongly portrayed be a matter of public interest. In other words, where the facts for the publication lack foundation, there can be no justification in claiming to serve a non existent interest and thereby endangering the interest of an individual without any just cause. The defendants by pleading justification is saying in a sense that all the words used in the publication are absolutely true and accurate. This would not only cover the bare statement of fact simpliciter but also the truth which would be imputed into what the words are meant to connote.
iv. Deducing from the findings supra it is my firm view, and I hold that the defendants/appellants have fallen short of proving any or at all of the three requirements stated in the case of Concord Press (Nig.) Ltd. v Olulola (supra). In other words that the matter is of public interest; that the comment is founded or based on true facts, and that the comment on the fact is fair.
3. ISSUE 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. There is no evidence produced and shown on record to substantiate the act of the destruction of the camera in question. The fact that the claimant confirmed that someone tried to take his photograph cannot be a proof of either the existence of the camera, its costs or destruction thereof. The evidence of waving aside a camera by the claimant cannot also be synonymous with smashing a camera. It is also expected that with the allegation of the destruction, there ought to have been the production of its residue or the receipt of its purchase as proof thereof. The deduction arrived at by the learned trial judge at page 254 reproduced supra, cannot in the circumstance be faulted.
ii. The onus to prove was on the appellants who alleged the damage to the camera. The record did not reveal such evidence placed before the lower court and consequent upon which the claim for damaged camera fails.
iii. On the claim of the sum of N50,000,000.00 (Fifty million Naira being general damages suffered by the 1st defendant as a result of the absence from duties of the said, Mr. Olugbenga Olamikan, an employee of the defendant, same is also a matter of evidence. It is pertinent to restate that no evidence of the said absence had been placed before the trial court. There was no form of hospital bills and report from a qualified medical doctor placed before the lower court in that respect. The court is not a Father Christmas who would award reliefs which have not been proved. The counter claim as rightly concluded by the learned trial judge was not proved and therefore failed.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
In the case of Dina v New Nigerian Newspaper (1985) 2 NWLR (Pt.22) 353, it was held that the test in determining whether certain words are defamatory or not is that of reasonable people in the circumstances of each case. The interpretation of the words written or spoken is a question of fact and is what the ordinary man would infer without special knowledge.
Basorun v. Ogunlewe (2000) 11 NWIR (pt.640) pages 223-238 at 231 Aderemi JCA (as he then was) held and said:- “Publication of a defamatory statement is an essential element of the cause of action in libel case … And publication is the act of making the defamatory statement known to any person other than the plaintiff himself. Of course, publication must be proved by credible evidence.”
Okolie v Marinho (2005) 15 NWLR (Pt.1002) at page 335, Akaahs JCA found and said:- “A defamatory publication is one that is calculated to lower the person in the estimation of right thinking men or cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade, or business. The test to be applied in determining whether or not the words complained of are defamatory in their natural and ordinary meaning is whether under the circumstances of reasonable man to whom the publication was made would likely understand it in a libelous sense. Furthermore, in defamation the published word complained of must be read as a whole.”
In the case of Dumbo v Idugboe (1983) 1 SC NLR 29 at 49 and said: “In deciding whether words are capable of conveying defamatory meaning, the court will reject that meaning which can only emerge as the product of some strained or forced or utterly unreasonable interpretation (per Lord Morris in Jones v Skelton (1963) 1 WLR at p.1370).
In the case of Basorun v. Ogunlewe (2000) 1 NWLR (pt. 640) 221 at 235-236, Aderemi JCA (as he then was) said:- “When a defendant has as his defence that the comment is a fair one, he is saying no more than that the story was based upon 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 1st be established… for the law does not permit a person to invest untrue facts 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…”
In the case of Concord Press (Nig.) Ltd. v Olutola (1999) 9 NWLR (pt. 620) page 578 at 596 that:- (a) The matter must be of public interest; (b) The comment must be founded or based on true facts; and (c) The comment on the fact must be fair.
The dictum of Lord sumner is Jones v. Jones (1915) 2 A. C. 481 at 500 was extensively quoted by his Lordship Aderemi JCA wherein he said: “Defamation; spoken or written, is always actionable if damage is proved, and even if it is not, the law will infer the damage needed to found the action: (1) When the words are written or printed; (2) When the words spoken impute a crime punishable with imprisonment; (3) When they impute certain diseases naturally excluding the patient from social intercourse; (4) When words are spoken of a person following a calling, end spoken of him in that calling, which impute to him unfitness for or misconduct in that calling.”
AKOMOLAFE V. GUARDIAN PRESS 42 NSCQR 135 AT 162, Onnoghen, JSC in his lead judgment stated at page 163 paragraphs E.F. thus “It is settled law that a privilege occasion, is in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social or moral to make it to the person to whom it was made, and the person to whom it was made has a corresponding interest or duty to receive it.
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
It is trite law and as rightly submitted by both counsel that to succeed in a claim of libel, the claimant must have to prove that he has been discredited by the imputation in the alleged statement without legal justification. It is also trite law that a person’s reputation is not based on the opinion he has of himself but rather the estimation in which others hold of him. – Ogunbiyi, JCA. Vanguard v. Olafisoye (2011)
In order for the court to determine whether the words convey a defamatory message, the test of reasonableness must be applied for deciding that purpose. The court will therefore construe the words according to the fair and natural meaning which would be given them by reasonable person of ordinary intelligence. – Ogunbiyi, JCA. Vanguard v. Olafisoye (2011)
The Law on libel and slander has been clearly defined in the introduction to the eighth edition of Gatley on Libel and Slander published in 1981 by Sweet and Maxwell, London as, “a man’s right to his un-dented reputation.” The corollary therefore is apt that where a man’s reputation is dented as a result of words spoken or written about him in permanent form by another person, he is deemed to have been defamed. At paragraph 4 of page 6 of the publication, the author had thus to say:- “Any imputation which may tend “to lower the plaintiff in the estimation of right-thinking members of the society generally,” “to cut him off from society,” or “to expose him to hatred, contempt or ridicule” is defamatory to his reputation.” – Ogunbiyi, JCA. Vanguard v. Olafisoye (2011)
The law is firmly established that liability for a publication falls on all persons who participated or authorized it. Consequently and where a libel is published in a Newspaper therefore, everyone who has taken part in publishing it or in procuring its publication or has submitted material published in it is prima facie liable. It follows therefore that the editor, printer, publisher of the Newspaper are prima facie jointly and severally liable for any libel which appears in the publication unless they can however show that they did not know that the publication contained defamatory material or was unlikely to contain such material. – Ogunbiyi, JCA. Vanguard v. Olafisoye (2011)
On the authority of the foregoing it is apparent that for the defence of fair comment to succeed, the defendant has the onus to show that the publication is in fact a fair comment upon some matter of public interest. It must also be uncompromised that the facts on which the comments are based must be true. – Ogunbiyi, JCA. Vanguard v. Olafisoye (2011)
Comments not based on true facts cannot be fair comments in law. – DANJUMA, J.C.A. Vanguard v. Olafisoye (2011)
The complaint of the Appellant on the quantum of damages awarded was not justified as an Appellate court would not ordinarily interfere with the award of damages unless it can be shown that the award was based on wrong principle of law or that the award was clearly an erroneous estimate of the damages suffered. – DANJUMA, J.C.A. Vanguard v. Olafisoye (2011)