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In The Supreme Court of Nigeria

On Friday, the 20th day of July 1990

SC 161/1987

 

Before Their Lordships

 

 

Augustine Nnamani

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Abdul Ganiyu Olatunji Agbaje

......

Justice, Supreme Court

Abubakar Bashir Wali

......

Justice, Supreme Court

Ephraim Omorose Ibukun Akpata

......

Justice, Supreme Court

 

 

Between

 

Isaac D. O. Ejabulor 

......

Appellant

 

And

 

His Highness D. B. Osha

.......

Respondent

 

Judgement of the Court

Delivered by

Ephraim Omorose Ibukun Akpata. J.S.C.

 

The main question in this appeal is whether the author of a slanderous speech at a Press Conference held at a Press Centre is liable for the publication of the speech in a newspaper in an action for libel by the person defamed by the publication, even though there was seemingly no authorization of the publication by the author of the slanderous speech!

 

Enhwe is a town in Isoko Local Government Area of Bendel State of Nigeria. The plaintiff, who is the respondent in this appeal was appointed the Ovie (the traditional ruler) of Enhwe by the Mid-Western State Government, now Bendel State Government, with effect from 11th December, 1968. The fact of his appointment was published in the Mid-Western State Legal Notice No.32 of 1973 dated 25th June, 1973, Exhibit 'A"

 

A weekly newspaper called "The Hope" said to have "a large circulation throughout the Federal Republic of Nigeria" carried in its issue of Sunday, 25th September, 1982, Exhibit "B", a statement credited to the defendant concerning the plaintiff at a press conference in Benin City. The defendant was alleged to have said, amongst other things, that "Chief D. B. Osha (plaintiff) is not the Ovie of Enhwe as he had been parading himself.

 

Following the publication the plaintiff instituted an action by a writ of summons dated l0th October, 1982 claiming from the defendant the sum of two million naira as damages for libel. He also prayed for an injunction "restraining the defendant, by himself or agents from further writing, printing or circulating or causing to be written, printed or circulated or otherwise publishing of the plaintiff the said or similar libel."

 

Although the trial Judge, Akpiroroh, J., was satisfied that the words complained of were "clearly defamatory of plaintiff" and that the plea of justification could not be sustained, he was however of the view that the plaintiff failed to prove publication, since there was no evidence that the defendant invited reporters to the press conference or that he handed over a copy of his speech at the press conference to any reporter for "the express purpose of publication". The learned trial Judge therefore held that the plaintiff had failed to discharge the onus on him in the case. The plaintiff's claim in its entirety was therefore dismissed.

 

It is relevant to state that there was another issue in the publication complained of in respect of which the learned trial Judge found against the plaintiff. In the said publication, it was reported that the defendant condemned "the attitude of some people in Uluthe quarter of Ikpolo Enhwe, in Isoko Local Government Area of Bendel State to embark upon unfortunate, retrogressive and disastrous secession from Ikpolo Enhwe clan …… He (defendant) alleged that he (plaintiff) had been aiding and abetting some persons to cause the secession of Uluthe quarter from the all encompassing umbrella of Okpolo Enhwe clan …….

 

The trial Judge was satisfied that there was agitation by Uluthe people for the creation of a separate clan as evidenced by the publication, Exhibit "C" signed by one B B. Okunu, the Secretary of the communities and that there was no "unity between Uluthe quarter and the other five quarters that make up Enhwe clan." He concluded that the Uluthe people could not have sought to constitute themselves into a separate Enhwe clan without the consent and permission of the plaintiff. The learned trial Judge was satisfied that the allegation that the plaintiff aided and abetted Uluthe quarter in the attempt to secede was well founded and that the plea of justification succeeded. He was satisfied that B.B. Okunu issued Exhibit "C' with the full knowledge consent and permission of the plaintiff.

 

Dissatisfied with the judgment of the High Court, the plaintiff appealed to the Court of Appeal (Benin Division). In his judgment, concurred in by Ikwechegh and Ajose-Adeogun, JJ.C.A., Musdapher, J.C.A., held that the finding of the learned trial Judge that authorization of the publication by the defendant could not be inferred from what transpired at the press conference was perverse bearing in mind that the defendant was "the president of the association that had hired the press centre for the purpose of holding a press conference and the issuance of a special press release." The learned justice of the Court of Appeal made the point that from the pleadings it was abundantly clear that the defendant in compliance with the directive of the clan went to the press centre and issued a press release "to inform the whole world about the activities of the appellant (plaintiff)." The learned Justice concluded that it could not be said that the defendant did not authorize or request the publication of the press release.

 

The court also made the point that there was no evidence to justify the inference drawn by the learned trial Judge that B B. Okunu published the document, Exhibit "C." with the full knowledge, consent and permission of the plaintiff." The court allowed the appeal and proceeded to assess damages taking into consideration the fact that:

 

1.    The plaintiff was a recognised traditional ruler of the defendant;

 

2.    The defendant was unrepentant;

 

3.    The libel was only published in the Hope Newspaper; and

 

4.    No evidence of the size of the crowd that attended the press conference was adduced.

 

The learned Justices arrived at N7,500as damages as against the two million naira claimed.

The defendant has now appealed against the decision of the Court of Appeal reversing the judgment of the High Court on four grounds, whereby he complained against:

 

1.     The conclusion of the Court of Appeal that there was no evidence to suggest that the plaintiff authorised the publication Exhibit "C" signed by B.B. Okunu.

 

2.    The finding that there was ample evidence that the defendant authorised the publication of the libellous matter Exhibit "B".

 

3.    The award of N7,500.00 as damages; and

 

4.    The decision as a whole in the light of the weight of the evidence.

 

In the appellant's brief, three issues were formulated as arising from the four grounds of appeal:

 

(i)     Whether the Court of Appeal were right in holding, inter alia, as follows: 'There is no iota of evidence to suggest that the appellant authorised the publication in Exhibit "C" in the face of the abundant evidence on record showing that the plaintiff aided and abetted secession of Uluthe quarter from Enhwe Clan' - a fact duly arrived at and accepted by trial court after it had thoroughly and properly evaluated the evidence before the court.

 

(ii)    Whether the learned Justices of the Court of Appeal were right when they held that the mere issuing of a press release at a press conference amounted to authorisation or request for the Publication of the press release.

 

(iii)   Whether the learned Justices of the Court of Appeal were guided by the proper legal principles of assessment of damages for libel as contained in paragraph 1358 of the page 556 of Gatley on Libel and Slander, 7th edition.

 

The respondent identified in the brief filed on his behalf two issues for determination:

 

1.      Given the pleadings filed in this case and evidence led whether the Court of Appeal was right in holding the appellant liable for the publication complained of in the Hope Newspaper of 25th November, 1982.

 

2.     Whether the Court of Appeal was right in holding that the appellant did not establish the truth of appellant's allegation that respondent aided and abetted secession.

 

The two issues identified by the respondent are more succinctly framed than issues one and two in the appellant's brief. The third issue which arises from the appeal is whether the Court of Appeal was guided by the proper legal principle of assessment of damages for libel. It is not whether the principles applied by that court conformed with those stated in paragraph 135 of page 556 of Gatley on Libel and Slander, 7th Edition. It should be borne in mind that while text-book propositions are persuasive and should be given due consideration, the principles enunciated in judgments of a higher court on an issue are binding on a lower court regardless of what text-books say about them. The law is what the court says it is until it is set aside by a higher court. Views expressed in a text-book cannot over ride it. For instance the high court or even the Court of Appeal cannot be seen to accept the proposition in a text-book, no matter how knowledgeable the author is, as against that of the Supreme Court.

 

The main issue in this appeal is whether there was a publication by the appellant. In the appellant's brief, it was submitted that there was not the slightest iota of evidence proffered by the plaintiff or his sole witness to the effect that the defendant sent the article to the editor or furnished the information to one of the staff of the newspaper for the express purpose of publication. He relied for his submission on the passage in Gatley on Libel and Slander 7th Edition, article 237, pages 111 to 112, a part of which passage reads:

 

The mere fact that the author of a slanderous speech knew or might reasonably be expected to have known that reporters were present when he delivered the speech and that a report of the speech would appear in a newspaper, will not render him liable for the publication of the speech in a newspaper.

 

Broadly speaking, I am in agreement with the above reasoning of the learned author. It seems to me plain and reasonable that where by chance reporters were present when the slanderous speech was made but not at a press conference and the author knew of their presence and was conscious of the likelihood of the speech appearing in a newspaper he will not for that reason alone be rendered liable for the publication of the speech without some sort of request by him, expressly or implicitly, that the speech be published. In such a situation there would be the presumption that the reporters exercised their own discretion in publishing the offending speech. Only the reporters and the newspapers that published the slanderous speech will be liable for the publication.

 

It is however a different consideration in respect of a defamatory speech made at a press conference. A press conference connotes a gathering of press men, invariably on invitation, for purpose of receiving news for publication in their newspapers, journals or periodicals. It is plain to me that a speech made at such a press conference will be deemed to have been requested to be published. It will not be necessary for the plaintiff to prove express authorisation or request. Authority or request will be inferred on proof that it was a press conference held at the instance of the author of the slanderous speech or his agent or servant or representative or associates. It will be taken that he desired the reporter to take down the speech as he delivered it.

 

As rightly submitted by Dr. Mowoe in the respondent's brief it is manifest from the pleadings and the evidence of the appellant that the press conference was not fortuitous. It was deliberately planned to ensure that "the world" was informed of the activities of the plaintiff/respopdent. This is apparent from portions of the statement of defence and the evidence of the appellant.

 

Paragraphs 5, 6 and 7 of the statement of defence read in part thus:

 

5.      In further answer to paragraphs 4 and 5 of the plaintiff's Statement of Claim, the defendant avers that a Special Press release was made by Enhwe Youth Association at a Press Conference held in Benin City on Thursday, 16th September, 1982. The defendant was, and still is, the President of the Association.

 

On 21st August, 1982, there was a general meeting of the entire Okpolo (Enhwe) Clan in which a decision was reached that the world should be informed that the plaintiff is falsely arrogating to himself the title of the Ovie of Enhwe Clan. There are Six (6) known Quarters in Enhwe Clan of which the plaintiff is from one of them called Uluthe Quarter. He is probably the one-eyed man in that particular quarter. And because of his influence and political learning, he is now imposing himself as the Ovie of Enhwe Clan ……

 

6.      In still further answer to paragraphs 4 and 5 of the plaintiff's Statement of Claim, the defendant admits that the Enhwe Youth Association, under the presidency of the defendant issued a special press conference on Thursday, 16th September, 1982. This was strictly in obedience with the directive of the meeting of all Okpolo (Enhwe) Clan held in Enhwe on Saturday, 21st August, 1982. The defendant shall found on the copy of the Communiqué issued at the end of the General Meeting of Okpolo (Enhwe) Clan held on the said 21st day of August, 1982. The said Communiqué was signed by twenty (20) important members of all the six quarters of Okpolo (Enhwe) Clan.

 

7.      Paragraphs 6 and 7 of the plaintiffs Statement of Claim are untrue. It is true that delegated members of the Enhwe Youth Association went to the Press Centre in Benin and paid the sum of N200.00 (Two hundred Naira) as fees for holding a press conference. ……….

 

Defendant further maintains that whatever he said at the press conference was for himself and on behalf of the whole Ok-polo (Enhwe) people at home and abroad They are all statements of fact.

 

In his evidence in chief the appellant agreed that he held a press conference at Benin City and that it was published in the Hope Newspaper on 25th September, 1982. He identified Exhibit "B" as the newspaper in question. It is therefore glaring that the appellant admitted in his statement of defence that the press conference was summoned purposely to communicate to "the world" the fact that the respondent was wrongly parading himself as the Ovie of Enhwe. As rightly submitted by Dr. Mowoe, the appellant was at

least a joint tort-feasor in respect of the libellous publication. The fact that the press conference was at the instance of the Enhwe Youth Association and not at the personal request of the appellant does not avail him a defence. As rightly held by Musdapher, J.C.A., "from the pleading it is abundantly clear that the respondent in compliance with the directive of his clan, knowingly went to the press centre and issued a press release to inform the whole world about the activities of the appellant." In effect there was implicit admission that the publication was authorised. It was therefore unnecessary in the circumstances of this case for the respondent to have called as a witness the reporter of the Hope Newspaper who was present at the press conference when the slanderous speech was made to testify as to whether or not he was authorised or requested to publish it.

 

The evidence of the reporter would have been necessary if the appellant had denied making the speech contained in Exhibit "B." In the recent case of Chief 0. N. Nsirim v. E.A. Nsirim (1990) 3 NWLR (Pt. 138) 285, this court confirmed the decision of the Court of Appeal to the effect that failure to call the reporter present at the press conference was detrimental to the case of the plaintiff since the defendant denied holding the press conference. Publication was therefore not established in that case. The submission of Mr. Esombi in the instant case in the appellant's brief that the evidence of the reporter of Hope Newspapers was essential to establish publication by the appellant is unacceptable in the face of the admission of the appellant that the press conference was held, and the fact that he did not deny the speech credited to him in Exhibit "A".

 

In Odgers on Libel and Slander, 6th Edition, at page 141, it is stated:

 

Thus, (a request to print or publish) may be inferred from the defendant's conduct in sending his manuscript to the editor of a magazine, or making a statement to the reporter of a newspaper, with the knowledge that they will be sure to publish it, and with-out any effort to restrain their so doing. (italics mine)

 

Whether authorisation or request to publish can be inferred depends on B the circumstances of each case. As I have already pointed out such inference should be drawn in respect of a speech made at a press conference. In Salmond and Heuston on Torts, 18th Edition, the authors made the point that "everyone is responsible for the publication of a defamatory statement by another with his authority: hence a speaker who knows that his words are being reported for the public press and who expressly or implicitly authorises such a publication can be sued for libel and not merely for slander." (italics mine)

 

The need to draw inference of authorisation to publish in certain circumstances is not a new phenomenon in the law of libel. In the old case of Hay v. Bingham (1905) 11 OLR, 149 at page 153, the Court of Appeal for Ontario, Canada, rightly held that if there was evidence from which the jury might infer that the defendant knew that he was speaking to a reporter and speaking for publication, and that he authorised what he said to be published in a newspaper, publication by the defendant would have been established. See Douglas v. Tucker (1952)1 DLR 657 at 667.

 

It is thus clear that it is not in every case that it requires express authorisation or request to a reporter to publish before the author of a slanderous speech can be held liable for any damage caused by its publication in a newspaper. It would amount to turning a blind eye to an obvious fact to hold that a slanderous speech at a pres conference held at a press centre was not authorised to be published. No one but a Daniel will go to a lion's den without expecting to be devoured. In the same vein making a slanderous speech at a press conference held at a press centre is like feeding gratuitously an unwary F reporter with juicy news for publication. Ground two fails.

 

Ground one is to the effect that the Court of Appeal erred in law and in fact in holding that there was no evidence to support the finding of the trial court that the plaintiff authorised the publication in the Nigerian Observer, Exhibit "C", and that he was therefore aiding and abetting secession. The Court of Appeal was saying in essence that there was no evidence that the plaintiff, the Ovie of Enhwe, was seeking the dismemberment of his 'kingdom', embracing the entire Okpolo Enhwe clan.

 

It is true that the plaintiff as an individual is from Uluthe quarter, one of the quarters in Enhwe. It was also admitted by the plaintiff and his only witness that B.B. Okunu signed Exhibit "C" published in the Nigerian Observer demanding the creation of Uluthe quarters as a separate clan from Okpolo Enhwe clan. The plaintiff under cross-examination stated that he was not aware of the agitation for secession. The learned trial Judge disbelieved him. He concluded that the plaintiff was aware of the demand contained in Exhibit "C" and that B.B. Okunu would not issue Exhibit "C" without the "the knowledge, permission and consent of the plaintiff more so when all the communities mentioned in Exhibit "C" support him and recognise him as their clan head as against D .W. 1." The Court of Appeal held that this finding was a non sequitur.

 

Mr. Esombi rightly submitted that it is only where the trial court has drawn wrong inferences and conclusions from the facts established before it or where it has failed to make proper use of the advantage of seeing and hearing the witnesses who testified that the Court of Appeal can intervene and disturb the finding of fact in the interest of justice. He cited in support Chief Frank Ebba v. Chief Washi Ogodo & Ors. (1984)4 S.C.184; (1984)1 SCNLR 372.

 

The position however is that the Court of Appeal has not acted contrary to the principle enunciated in the case under reference. The court was of the view, and rightly too, that the trial court drew a wrong inference and conclusion from established facts before it. It may be true that the plaintiff knew of the publication after it had been published and that he told a lie when he said he did not know. But the view of the trial Judge that the content of Exhibit "C" could not have been published without "his knowledge and permission and consent" is far-fetched from the scanty evidence on the issue before the learned trial Judge. It is a conjecture which is not supported by evidence. It would require stronger evidence to establish that the respondent would support a move that would strip him of his authority over five quarters out of six.

 

It is also correct that where a trial court unquestionably evaluates the evidence and appraises the facts, it is not the function of the Court of Appeal to substitute its own findings for the views of the trial court. This principle is only applicable to findings of fact made by the trial court arising from the credibility attached by the trial court to the testimony of witnesses. The trial court in this case drew wrong inference from established facts which the Court of Appeal rightly rejected. For instance if there was evidence from a witness that at a meeting in which the respondent was present he supported secession and the trial court believed the witness the Court of Appeal would not be competent to hold otherwise. Ground one fails.

 

In respect of the third issue for determination which is covered by ground three, it was the contention of the learned counsel for the appellant that there was no evidence on record that the respondent suffered any special damage before the action was instituted. In this regard the learned counsel referred to paragraph 207, page 98 of Qatley on Libel and Slander, 7th Edition. It appears to me that the learned counsel has mistakenly adverted to slander actionable only on proof of special damage to which paragraph 207 relates. He erroneously proceeded on the basis that the action was for slander whereas it was an action for libel. The action is based on the publication in the issue of "the Hope Newspaper" of Saturday, 25th September, 1982 and not in respect of the slanderous speech at the press conference. The learned counsel in fact emphasized, in his misconception of the nature of the action before the court, that "the plaintiff does not fall within any of the four recognised cases where an action for slander will lie without proof of special damages." It cannot be.

 

As Dr. Mowoe rightly put it, questions relating to proof of damages are totally alien to an action for libel. Mr. Esombi did not question the guideline applied by the Court of Appeal in assessing damages relating to libel. His only contention was that special damages was not proved. There is no doubt A that if it had occurred to him that the action was based on libel he would have found that the Court of Appeal proceeded on the right principle in assessing damages. That court was satisfied that the principle enunciated at paragraph 1358, page 558 of Gatley on Libel and Slander was valid. The learned author made the point that the court or jury in assessing damages should take into consideration "the conduct of the plaintiff, his position and standing, the nature of the libel, the mode and extent of the publication, the absence or refusal of any retraction or apology and the whole conduct of the defendant from the time when the libel was published down to the very moment of their verdict."

 

In arriving at N7,500.00 as damages the Court of Appeal correctly took into consideration, the fact that the plaintiff is a recognised traditional ruler, the fact that the defendant was unrepentant and that throughout the trial repeated the offending words and maintained that they were true. The appeal court also adverted to the fact that the libel was published only in "the Hope Newspaper." Ground three is wholly unarguable.

 

In proffering argument in respect of ground four which is that "the judgment is against the weight of evidence" learned counsel for the appellant went over again the point he made in respect of grounds one and two to the effect: (1) that the Court of Appeal has no power to substitute its own findings for those of the trial court; and (2) that the reporter of the Hope Newspaper was not authorised to publish a slanderous speech. There is also no merit in respect of this ground.

 

On the whole the appeal fails, it totally lacks merits. It is accordingly dismissed with costs which I assess at N500.00

 

NNAMANI, J.S.C.: I had the advantage of reading in draft the judgment just delivered by my learned brother, Akpata, J.S.C. I entirely agree with his reasoning and his conclusion that the appeal being totally unmeritorious should be dismissed.

 

The main issue in this appeal is really whether there was publication of the libel. The real question is as respondent posed it in one of the two issues for determination he set down. This was:

 

"Given the pleadings filed in this case and evidence led whether the Court of Appeal was right in holding the appellant liable for the publication complained of in the Hope Newspaper of 25th November, 1982.

 

I would say that the Court of Appeal was right given the circumstances of this case. As for the pleadings, in paragraphs 5, 6 and 7 of the Statement of Defence, the appellant admitted making the speech complained of. He says, however, that he never gave a copy of his speech to the press for publication. I think that this is one case in which publication can be inferred. The defendant is the President of the Enhwe Youth Association which according to him decided that a press conference be held to tell the whole world of the activities of the respondent. Members of the Association paid N200.00 to secure a venue at the Benin Press Centre, and as is usual with a Press Conference, invited the reporters to the Centre. It was at a Press Conference that the defendant made the offending speech. How, may one ask, would the world be told of the activities of the respondent if the reporters did not publish the speech? The Hope Newspapers did and it would be absurd to say that publication cannot be inferred in such circumstances.

 

The situation here is different from that in Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) 285 where the court held that there was no publication.

 

There the defendant denied that there was any publication. There the defendant denied also that there was a press conference. He said the offending speech was taken from his desk by the plaintiff in that case. No reporter was called to say that he obtained a copy of what was published at a press conference.

The appeal is dismissed. I endorse the order for costs in the lead judgment.

 

 

Judgement delivered by

Karibi-Whyte. J.S.C.

 

I have had the privilege of a preview of the judgment of my learned brother. Akpata. J.S.C., in this appeal. I agree entirely with his reasoning therein; and his conclusion that this appeal lacks merit and ought to be dismissed. I however, make a short contribution to the issue of publication of the libel canvassed before us. I adopt the facts of the case as stated in the judgment of my learned brother, Akpata, J.S.C.

 

The main point on which the appeal is being fought could be formulated as a proposition, that is, whether dissemination of a defamatory matter, in a Press Conference simpliciter, invariably amounts to the publication of a libel. This is the only issue I will discuss.

 

The learned trial Judge, after considering the evidence and the pleadings before him found that the words complained of which were published in a Newspaper after a Press Conference were clearly defamatory of the plaintiff. It was also held that the defence of justification was not available to the defendants. The learned Judge nevertheless dismissed the claim of the plaintiff, for failure to prove publication of the libel. He held that there was no evidence that the defendant invited reporters to the Press Conference or that he handed over a copy of his speech at the Press Conference to any reporter for ~the express purpose of publication." Accordingly he held that, there being no evidence of authorisation of the publication of the defamatory matter by the defendant. no publication of the defamatory matter was established: The simplistic reason given by the learned trial Judge was expressed in his words that there was no evidence that the defendant invited reporters to the press conference. There is equally no evidence that he handed over a copy of his speech at the press conference to any reporter for the express purpose of publication." He thus assumed that there must be express authorisation only of publication. Hence the learned trial Judge refusing that he could even infer the authorisation of the publication of the defamatory matter, stated:

 

….. I am of the view that authorisation by the defendant cannot be inferred in the instant case because there is no evidence led by the plaintiff to show that he sent a copy of the press conference to the Editor of the Hope Newspapers for express purpose of Publication in the paper.

 

Very simply stated the learned trial Judge dismissed the claim of the plaintiff A because in his opinion that publication was not proved.

 

It is pertinent to observe that the libel was not denied. The plaintiff appealed against the judgment. The Court of Appeal in a unanimous judgment allowed the appeal and set aside the judgment. The Court of Appeal reversed the finding that the plaintiff failed to prove publication of the libel. It was held that the finding cannot be correct in the light of the pleadings and evidence before the learned trial Judge. It was pointed out that the defendant is the President of the Enhwe Youth Association that hired the Press Centre for the purpose of the Press Conference. The Special Press Release was issued by the Association. The purpose of the Press Conference was to inform the WORLD that the plaintiff is falsely arrogating to himself the title of Ovie of Enhwe Clan. All these facts were admitted by the appellant before us.

 

After considering the pleadings, the evidence and the law relating to publication in respect of libel, the Court of Appeal declared;

 

It is my judgment that the finding by the lower court that there was no proof of publication is perverse as it was indeed admitted by respondent and what is clearly admitted needs not he proved. I accordingly find that the respondent was responsible for the offending publication.

 

The defendant thereupon appealed against the judgment. There are four grounds of appeal. The first two relate to the issue of publication. I shall reproduce the two grounds of appeal without their particulars because of their prolixity. The two grounds of appeal are as follows -

 

1.      The Ilonourable trial Justices of the Court of Appeal erred in law and the facts when they held at Page 12 Lines 9 - 15 of the judgment as follows -

 

There is no iota of evidence to suggest that the appellant authorised the publication in Exhibit "C." Therefore the finding of the learned trial Judge that the respondent had not proved the correctness of his allegation that the appellant was aiding and abetting secession.

 

Particulars of Error

 

Omitted

 

2.     The Honourable Justices of the Court of Appeal erred in law and on the facts when they held at page 10, lines 16-27, of the judgment as follows:"There is ample evidence to justify a finding of publication by the respondent it is my judgment that the finding by the lower court that there was no proof of publication is perverse as it was indeed admitted by respondent and what is clearly admitted needs not be proved. I accordingly find that the respondent was responsible for the offending publication."

 

Particulars of Error

 

Omitted

 

Counsel to both parties ified and exchanged briefs of argument. Mr. Esombi for the appellant was not present to elaborate on his briefs, if any. His brief was accepted as having been argued. As in the grounds of appeal, the first two issues for determination formulated by counsel to the appellant related to whether the Court of Appeal was right in holding that the plaintiff' appellant proved publication of the libel.

 

Appellant's first and second issues for determination read -

 

The issues arising for determination in this Appeal are as follows -

 

(i)    Whether the Court of Appeal were right in holding inter alia as follows:

 

There is no iota of evidence to suggest that the appellant authorised the publication in Exhibit "C" in the face of the abundant evidence on record showing that the plaintiff aided and abetted secession of Uluthe quarter from Enhwe Clan -a fact duly arrived at and accepted by the trial court after it had thoroughly and properly evaluated the evidence before the court.

 

(ii)    Whether the learned Justices of the Court of Appeal were right when they held that the mere issuing of a press release at a press conference amounted to authorisation or request for the PUBLICATION of the press release."

 

The first of the two issues for determination formulated by counsel to the respondent reads -

 

1.     Given the pleadings filed in this case and evidence led whether the Court of Appeal was right in holding the appellant liable for the publication complained of in the Hope Newspaper of 25th November, 1982.

 

I have adopted the formulation by counsel to the respondent. It is precise and direct.

 

In his brief of argument Mr. Esombi, counsel to the appellant submitted that the Court of Appeal ought not interfere with the findings of fact made F by learned trial Judge without showing that such findings of fact were unreasonable and perverse. He cited and relied on Chief Frank Ebba V. Chief Washi Ogodo & Ors. (1984)4 S.C.184; (1984)1 SCNLR 372. Counsel contended that the learned trial Judge properly evaluated the evidence before him. He argued that where the trial Judge had drawn wrong inference and conclusions from the facts established before him or failed to make use of the advantage of seeing and hearing the witnesses who had testified before him, the Court of Appeal will be entitled to intervene and make correct findings in the interest of justice.

 

Learned counsel submitted that the Court of Appeal was wrong to draw inference of publication because there was no where on the record where it was shown that the defendant authorised or requested such publication.

 

It seems to me understandable that the learned counsel is clinging to the issue of publication, all the other ingredients of libel having failed. It is well settled that no civil action for libel is maintainable unless the words complained of have been published. This court held in Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285 that the material part of the cause of action in libel is not the writing per se, but the publication. In order to constitute publication, A the defamatory matter must be published to a third party and not merely to the plaintiff See Nsirim v. Nsirim (supra) where the plaintiff discovered the defamatory material where the defendant kept it. Publication is the making known of the defamatory matter, after it had been written and sent to a third party other than the plaintiff.

 

Appellant is denying the publication of the libel, and his contention is that he neither authorised nor requested its publication. But even a cursory reading of paragraphs 5, 6, 7, of the statement of defence in answer to paragraphs 4 and 5 of the statement of claim discloses the contrary. It shows that appellant organised, procured and facilitated the publication.

 

The relevant part of paragraphs 5, 6, 7 of the statement of defence aver as follows-

 

5.      In further answer to paragraphs 4 and 5 of the statement of claim the defendant avers that a Special Press release was made by Enhwe Youth Association at a Press Conference held in Benin Cit, on Thursday 16th September, 1982. The defendant was, and still is, the President of the Association.

 

On 21st August, 1982, there was a general meeting of the entire Okpolo (Enhwe) Clan in which a decision was reached that the world should be informed that the plaintiff is falsely arrogating to himself the title of the Ovie of Enhwe Clan.......

 

6.      In still further answer to paragraphs 4 and 5 of the plaintiff's statement of claim, the defendant admits that the Enhwe Youth Association, under the presidency of the defendant issued a special press conference on Thursday, 16th September, 1982. This was strictly in obedience with the directive of the meeting of all Okpolo (Enhwe) Clan held in Enhwe on Saturday, 21st August, 1982. The defendant shall found on the copy of the Communique issued at the end of the General Meeting of Okpolo (Enhwe) Clan held on the 21st August, 1982. The said Communique was signed by twenty (20) important members of all the six quarters of Okpolo (Enhwe) Clan.

 

7.     Paragraphs 6 and 7 of the plaintiff's statement of claim are untrue. It is true that delegated members of the Enhwe Youth Association went to the Press Centre in Benin and paid the sum of N200 (Two hundred naira) as fees for holding a Press Conference. It is not, however, true that the defendant was a member of the delegation who went to pay for the press conference, neither did he invite any papers or a group of persons to the press conference for any reporting. If there was any reporting by the Hope News-papers of whatever the defendant said at the Press Conference it was done without any specific instruction by the defendant.

 

Defendant further maintains that whatever he said at the press conference was for himself and on behalf of the whole Okpolo (Enhwe) people at home and abroad. They are all statements of fact. Defendant maintains that the Clan Head of Okpolo (Enhwe) clan is the Odion-Ologho, Chief Ororoke Ede who ascended the throne on 26th May, 1964.

 

It seems to me clear from the averments reproduced above that the defendant has admitted that (i) he is the President of the Enhwe Youth Association; (ii) the Enhwe Youth Association under the Presidency of the defendant and in obedience to the directive in the Communique of the General meeting of all Okpolo (Enhwe) Clan held in Enhwe on Saturday the 21st August, 1982, issued a special press release on Thursday, the 16th September, 1982; (iii) the delegated members of the Enhwe Youth Association paid the sum of N200 as fees for holding the press conference at the Press Centre in Benin; (iv) at the General Meeting of the entire Okpolo (Enhwe) Clan on 21st August, 1982, it was decided that the world should be informed that the plaintiff is arrogating to himself the title to the Ovie of Enhwe Clan……

 

The special release made by the Enhwe Youth Association at the Press Conference on the 16th September, 1982, was to inform the whole world that the plain tiff is arrogating to himself the title of the Ovie of Enhwe Clan.

 

It is pertinent to observe that the appellant admitted in his evidence-in-chief that he held a press conference at Benin City and that it was published in the Hope Newspaper on 25th September, 1982. Presumably, this was the press conference held on September 16, 1982. It was in this press conference that the Special release concerning the Communique agreed to by all the Enhwe Clan in their meeting of the 22nd August, 1982 was made. It was the release which was published to the whole world that the plaintiff was falsely arrogating to himself that he is the Ovie of Enhwe Clan.

 

There is sufficient evidence that the defamatory matter which was published in the press release of the 16th September, 1982 and published on the 25th September of the Hope Newspaper, was from the Communique of the General Meeting of the Enhwe Clan held on the 22nd August, 1982. Accordingly the libel pre-existed the publication.

 

Learned counsel to the appellant would appear to have assumed that he could seek refuge from the fact that the press conference was at the instance of the Enhwe Youth Association. It was averred that the defendant was not one of the persons delegated by the Association to go and pay for the Press Centre. The defendant however admitted being at the Press Conference but claimed that whatever the Hope Newspaper reported was without his authorisation; but they were statements on behalf of himself and for the entire Okpolo (Enhwe) people. But having arranged for the Press Conference, is-C sued a Press Release at the Press Conference, is it difficult to draw the inference that the Enhwe Youth Association sponsored the publication of the Press Release?

 

It is accepted law that liability for the publication of a libel may arise either from participation or authorisation. Hence where a libel is published in a Newspaper, every one who has participated in publishing it or in procuring its publication is prima facie liable. It is not necessary to prove express authorisation where it is shown that the defendant participated in or procured the publication. It has been stated that "everyone is responsible for the publication of defamatory statement by another with his authority; hence a speaker who knows that his words are being reported for the public press and who expressly or implicitly authorises such a publication can be sued for libel and not merely slander." (See Salmond & Heuston on Torts, 18th Ed.) The defendant has chosen a Press Centre for the venue of the publication. A Press Centre is a special place designated for the assemblage of journalists. A Press Conference connotes a gathering of people, invariably on invitation, to journalists for the purposes of receiving news for publication in their newspapers or other periodicals.

 

It is naive to assume that the news disseminated at such a press conference is not intended for publication. It is also not realistic to assume that journalists invited to such a press conference will require express authorisation before publishing the information disseminated to them.

 

The statement of defence has averred in paragraph 6 thereof, that the purpose of the press conference was to inform the whole world that plaintiff was falsely arrogating to himself that lie is the Ovie of Enhwe. Thus it will be legitimate to assume that the authorisation of the journalists invited to publish that request was implied from the invitation.

 

These facts were before the learned trial Judge. Having failed to evaluate the facts and make proper and correct findings, the Court of Appeal was free to evaluate the facts and make proper findings. Happily the question of the credibility of witnesses is not involved in this case - See Obijuri v. Ozims (1985) 2 NWLR (Pt.6) 167; Emenimaya v. Okori (1987)3 NWLR (Pt.59) 6. The Court of Appeal was right in reversing the finding of the learned trial Judge that the publication was not proved. Dr. Mowoe. learned counsel to the respondent has submitted that the appellant being at least a joint tortfeasor in respect of the publication was liable for the publication.

 

I think the point is well taken. The appellant is the President of the Enhwe Youth Association. He was also present at the Press Conference and claims to have spoken for himself and for the entire Enhwe Clan. The fact that the Press Conference was organised by the Association and not at his personal request seems to me irrelevant. I therefore agree with the Court of Appeal when per Musdapher, J.C.A., it said - .

 

from the pleading it is abundantly clear that the respondent in compliance with the directive of his clan, knowingly went to the press centre and issued a press release to inform the whole world about the activities of the appellant.''

 

The authorisation to publish having been implied from the facts of this case, it was unnecessary for the respondent to have called the reporter of the Hope Newspaper present at the Press Conference as a witness to testify as to whether or not he was authorised to publish the proceedings. The conclusion that he was so authorised is on the facts unavoidable.

 

In whatever way one looks at the situation, the conclusion must be drawn that authority to journalists invited or allowed to be present at the proceedings of a press conference is implicit in the holding of the press conference. In all such cases the speaker will be taken to have recognised that he H was speaking to reporters and speaking for publication. In the instant case the publication to the whole world of the activities of the plaintiff was the very object of the press conference. That objective having been achieved by publication of the proceedings can hardly be regarded as unauthorised.

 

The Court of Appeal was right to have held that the conclusion of the learned trial Judge that there was no publication, was perverse. The averments in the statement of defence are overwhelming as to the fact of publication.

 

For the reasons I have given in this judgment and for the fuller reasons in the judgment of my learned brother, Akpata, J.S.C., I dismiss this appeal.

 

Appellant shall pay N500 as costs to the respondent.

 

 

Judgment delivered by

Agbaje, J.S.C.

 

I have had the opportunity of reading in draft the lead judgment of my learned brother, Akpata, J.S.C. I agree entirely with his conclusions and reasoning. I cannot usefully add anything to the lead judgment.

 

In the result, I too dismiss the appellant's appeal with costs as assessed in the lead judgment.

 

 

Judgment delivered by

Wali, J.S.C.

 

I have had the privilege of a preview of the lead judgment just delivered by my learned brother, Akpata, J.S.C. I am in complete agreement with his reasoning and conclusion. For those same reasons which I adopt as mine, I too, find no merit in the appeal and it is accordingly dismissed with N500.00 costs to the respondent.

 

Appeal dismissed.

 

 

Counsel

 

Y. O. Esombi

  ........

For the Appellant

Dr. D. D. Mowoe

  ........

For the Respondent