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Joseph Mangtup Din V. African Newspapers of Nigeria Ltd. (1990) – SC

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➥ CASE SUMMARY OF:
Joseph Mangtup Din V. African Newspapers of Nigeria Ltd. (1990) – SC

by “PipAr” Branham-Paul C. Chima.

➥ COURT:
Supreme Court

3 NWLR (Pt.139) 392
1 All N.L.R 489

➥ JUDGEMENT DELIVERED ON:
Friday, the 25th day of May, 1990

➥ AREA(S) OF LAW
Defamation;
Character;
Proof of documents.

➥ PRINCIPLES OF LAW
⦿ ADMISSION IN EVIDENCE
Thus, where both parties have agreed on a fact in issue, no further proof of such fact was necessary as it ceases to be an issue between them:-See Chief Okparaeke of Ndrakaeme & Ors. V. Egbuonu & Ors.  (1941) 7 W.A.C.A. 53. In Chief Nwizuk & Ors. v,. Eneyok & Ors.  (1953) 14 W.A.C.A. 354, it was held that admissions under this section are not confined to written nor documentary admissions.  They include oral admissions if made clearly in open court during the proceedings.  Admissions may also be by implication where there is a failure positively to deny an allegation. In Hill V Hogg (1854) 4 Allen (New Brunswick) R 108 it was held that an admission and a confession to the commission may be given in evidence in proof of an imputation. — Karibe-Whyte, JSC.

⦿ PRODUCTION OF SECONDARY EVIDENCE IN ABSENCE OF ORIGINAL
Although secondary evidence of an original document is generally admissible after the notice to produce the original has failed to yield positive results, secondary evidence is admissible and the requirement of notice dispensed with in the discretion of the court when (a) the document to be proved is itself a notice; (b) from the nature of the case the adverse party must know that he will be required to produce it; (c) it appears or it is proved that the adverse party has obtained possession of the original by fraud or force; (d) the adverse party or his agent has the original in Court; (e) the adverse party or his agent has admitted the loss of the document. See Section 97(b) of the Evidence Act. The content of Exhibit “D2” constitutes the subject matter of the action against the respondent. It is therefore reasonable to assume that from the nature of the case appellant knew or ought to have known that he will be required to produce it at the trial. See Machin ,’. Ask (1950) L.G.R.87. Exhibit “D2” is therefore admissible. — Karibe-Whyte, JSC.

⦿ RIGHT TO COMMENT FREELY ON MATTERS OF PUBLIC INTEREST
The right to comment freely on matters of public interest is one of the fundamental rights of free speech guaranteed to the individual in our Constitution. It is so dear to the Nigerian and of vital importance and relevance to the rule of law which we so dearly treasure for our personal freedom. — Karibe-Whyte, JSC.

⦿ TRUTH IS JUSTIFICATION FOR DEFAMATION
The law of defamation in this country has not changed even by latest developments in law. A man is entitled to his good name and to be called what he is. But if in a man’s life he happens to have a blur and that blur is with the sanction of law recognised as such, it is no libel to point it out, even if it is done for mischief. That a man is entitled to the estimation he stands in the opinion of others is qualified only if what is said of him is false and thus lowers that estimation. But to say what is true, even if not obvious, that a man has been once convicted of a criminal offence attracting jail sentence, will not be defamatory if in fact that person has been so criminally convicted. — Belgore, JSC.

Also read:  RAPHAEL AGU V. CHRISTIAN OZURUMBA IKEWIBE (1991)

➥ LEAD JUDGEMENT DELIVERED BY:
Karibe-Whyte, JSC.

➥ APPEARANCES
⦿ FOR THE APPELLANT
Mr. Ladi Williams.

⦿ FOR THE RESPONDENT
Abraham A. Adesanya.

➥ CASE FACT/HISTORY
Appellant, who was the plaintiff in the court of trial, was a Captain in the Nigerian Army. In 1977 appellant applied to the Federal Electoral Commission to contest election into the Constituent Assembly, and was disqualified by the Commission. He thereafter held a News Conference where he described himself as a retired Captain of the Nigerian Army, and claimed to have served meritoriously and with unblemished record for nine years before he resigned voluntarily. The Nigerian Army confronted with this information, and incensed by their inaccuracy, held its own News Conference where in a public notice dated 2/9/77, it denied the claim and stated the circumstances whereby appellant was compelled to leave the Nigerian Army. The defendant, publishers of the Tribune Newspapers was present at this News Conference by its Reporters, and published the notice distributed to the Journalists present in the Tribune Newspaper of the 5th September, 1977. Appellant thereupon brought this action claiming from the respondent the sum of  #500,000 for words falsely and maliciously published by the respondents of and concerning him in the issue of their Newspaper known as the “Nigerian Tribune.”

After due trial, the trial Judge dismissed the claim of the appellant in its entirely, and in his judgment made the following findings of fact:- (1) That the Nigerian Army issued a Press Release in 1977 and forwarded a copy to the appellant: Exh. “Dl” “D2”; (2) That the appellant was dismissed from the Nigerian Army, from 6th December, 1971; (3) That appellant was found guilty of a criminal offence and convicted by a Military Court and sentenced to over 12 months imprisonment, which in all probability was for 18 months, at the Kirikiri Prison.

Appellant appealed against the judgment. The Court of Appeal accepted the findings of fact made by the trial Judge and dismissed the appeal on the ground that it lacked merit.

Also read:  M. O. Eperokun & Ors. v. University of Lagos (1986)

➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]

I. Whether the defendant has to go to the trouble of calling evidence to prove a fact already admitted by the plaintiff in his testimony during the proceedings? 

RULING: No – IN RESPONDENT’S FAVOUR.
A. THAT FACT OF PREVIOUS CONVICTION WAS ALREADY ADMITTED, THERE WAS NO NEED FOR PROOF
“Learned Counsel for the appellant has contended that the previous conviction on which the defendant relied ought to be proved by the production of the judgment of proceedings or secondary evidence admissible under section 96(2) of the Evidence Act. I do not think such a contention is on the facts of this case acceptable, or is such proof necessary in this case. I have already pointed out the proof of the fact of conviction is required when it is an issue to be proved in the dispute between the parties. The court below referred to and relied on the opinion expressed in the book Practice and Procedure of the Supreme Court, Court of Appeal and High Courts in Nigeria by Dr. Aguda at p. 481, and also Law of Evidence in Nigeria by the same author. At page 401, para. 284(4) of the Law of Evidence, where the learned author pointed out that the admission in open court of previous conviction by an accused is conclusive proof of that fact. It is only when the previous conviction is denied that proof will be required. I have pointed out in this judgment that in civil proceedings, which this is, proof of previous conviction is only relevant where it is a fact in issue. Mr. Adesanya for the respondent submitted before us as he did in the Court below, that the fact that appellant was sent to KiriKiri prison as a result of a sentence passed on him by a Military Court, which is the main issue to be determined in this appeal, required no proof because it was an admission of a fact in issue. I entirely agree with this submission.”
.
.
II. Whether or not the defence of privilege under section 9 of Defamation Act 1961 would cover the release made by the Military/Authority in the interest of the general public about the circumstance leading to the exit of a former officer of the Army?

RULING: Yes – IN RESPONDENT’S FAVOUR.
A. THAT THE PUBLICATION IS CAUGHT BY THE DEFENCE OF PRIVILEGE
“It is trite knowledge that the Military is for all administrative purposes under the Federal Ministry of Defence. The fact that there is a governing legislation is clearly immaterial. Thus the offending publication, which was a comment on Exhibit D issues on behalf of the Nigerian Army Public Relations Directorate for the information of the public and to correct the news conference held by the appellant falls within the provisions of paragraph 14, Part 3, Schedule to the Defamation Law. The construction of the sections by counsel to the appellant seems to me not too narrow and restrictive, but is a clear misunderstanding of the unambiguous words used.  There is therefore no doubt that the words complained of are fair comment on a matter of public interest. It is hardly disputable that it is a matter of public interest that a person who claims to have retired voluntarily from the Nigerian Army after 9 years service was in fact dismissed from it at the end of that period after conviction and serving a sentence of more than twelve months. This is without doubt a matter in which the public has a legitmate interest. Especially so when the appellant claims the use of the appellation “Captain” he has been forbidden to use by the Nigerian Army with all the attendant implications. The right to comment freely on matters of public interest is one of the fundamental rights of free speech guaranteed to the individual in our Constitution. It is so dear to the Nigerian and of vital importance and relevance to the rule of law which we so dearly treasure for our personal freedom. It is conceded that the right to discuss matters of public concern, does not confer liberty to make defamatory statements; however honestly made.”

Also read:  LOUIS ONIAH & ORS. v. CHIEF OBI J.I.G. ONYIA (1989)

B. THAT APPELLANT HAS NOT SHOWN THERE WAS MALICE IN MAKING THE SAID STATEMENT
“However, if the plaintiff can show that the comment was not made honestly, or that it was actuated by malice, the defence of fair comment will be defeated:-See Silkin V. Beaverbrook Newspapers (1958) 1 W.L.R. 743 at p.747. Appellant has not in his statement of claim alleged malice which if proved could have destroyed the defence of fair comment relied upon by the respondent:-See African Newspapers v. Coker (1973) 5 S.C.257; Dumbo v. Jdugboe [198311 SCNLR 29. Respondent’s defence of fair comment therefore remains unchallenged.”
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.
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✓ DECISION:
“The Court of Appeal correctly dismissed all the grounds of appeal filed. This appeal is totally devoid of merit and is an abuse of the process of court. I hereby dismiss the appeal in its entirety.  Respondents are entitled to the costs of this appeal which I assess at N500.00.”

➥ MISCELLANEOUS POINTS

➥ REFERENCED (STATUTE)

➥ REFERENCED (CASE)
In M’Pherson V. Daniels (1829)10 B & C. 263: “For the law will not permit a man to recover damages in respect of an injury to a character which he does not … possess.”

➥ REFERENCED (OTHERS)

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