In The Supreme Court of Nigeria
On Friday , the 25th day of May, 1990
Suit No 44/1986
Before Their Lordships
Judgement of the Court
Adolphus Godwin Karibi-Whyte J.S.C
This is an appeal to this court from the decision of the Court of Appeal dismissing the appellant appeal against the judgment of Bada, J., of the High Court of Lagos State. The facts which gave rise to this litigation are very simple and straight-forward. They are of the most scandalous kind and have been stated with clarity in the judgments of the two lower courts. I wish to state them again only for the sake of completeness.
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 distributedto 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."
In his five-paragraph statement of claim, appellant claimed that the publication had severely injured his credit, character and reputation, and had brought him into public scandal, odium and contempt. Below are the particulars of the words complained of;
Appellant in paragraph 4 of his statement of claim construed these words in their natural and ordinary meaning to mean that,
(a) he was dismissed from the Nigerian Army with effect from December 6, 1971,
(b) he was tried by a Military Court and found guilty of certain grievous offences for which he was jailed for 18 months.
The defendants in their statement of defence admitted the publication and averred that the words complained of "are a fair and accurate report of a notice for the information of the public by the Nigerian Army on the 2nd day of September, 1977," . . . and are therefore privileged under Section 9 of the Defamation Act, 1961 and schedule thereto."
In their defense, the defendants pleaded in paragraphs 6, 7, 8, 9, 10 and 11 that appellant was an 'ex-Captain' of the Nigerian Army; that he claimed in a Press Conference he held which was reported by the Nigerian Herald
Newspaper of 9th August, 1977, after his disqualification from contesting the election into the Constituent Assembly to have served the Nigerian Army loyally for nine years; that the Nigerian Army did not take kindly to this claim and accordingly refuted the claim in a Press Conference, where a public notice dated 2nd September, 1977, was distributed, and therein advising members of the public and the Mass Media to stop addressing appellant as Captain. It was also pleaded that the Nigerian Army had also addressed a letter to appellant warning him against further using of the appellation of Captain and drawing his attention to the fact that he had forfeited his right to the use of the designation "Captain" and the circumstances how he left the Nigerian Army.
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:-
Appellant appealed against the judgment. Many issues were raised on appeal, but all of them can be conveniently classified under the two heads of
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.
Counsel to the appellant challenged the admission of the evidence of the conviction of the appellant which the trial Judge relied upon in dismissing appellant's claim, and held that it was not necessary to seek further proof of the fact of conviction and sentence of the appellant, since this had been established on his own admission during cross-examination. It was held that the provisions of Sections 131(1) and 224 of the Evidence Act relied upon by Counsel to the appellant, are not applicable to the issue of the proof of the fact of the previous conviction and sentence of the appellant. The Court of
Appeal considering the defence of fair comment raised by the respondent referred to the defence of the respondents in paragraphs 7-11 of the statement of defence, and held that this fell within the purview of paragraph 14 of the schedule to the Defamation Law, Cap.34 of Lagos State and was privileged. Appellant has appealed further to this court relying on five grounds of appeal which are substantially similar to those relied upon in the court below. Both parties have filed their briefs of argument, which they adopted in oral argument before us. I consider it necessary and for ease of reference and interest of clarity to reproduce the grounds of appeal.
The grounds of appeal filed in this court excluding particulars of error are as follows-
Learned counsel to the appellant has formulated seven questions as arising from the five grounds of appeal filed. On the other hand, respondent's counsel has formulated two questions on which he relies. I think counsel for the appellant has ignored the warning of this court that prolixity of the issues formulated is not a merit and more likely obscures the core issues to be determined. Effort should be made to avoid formulating of secondary issues. The issues formulated should relate to the issues directly challenged in the grounds of appeal. It seems to me those issues not directly related to the grounds of appeal are irrelevant to the determination of the appeal. I will therefore in this appeal adopt the issues formulated by the respondent which are directly arising from the grounds of appeal and are as follows:
These two questions cover the issues raised in the five grounds of appeal filed in this case and all the issues raised in appellant's formulation. It seems to me that question "3.1 of the respondent's formulation encompass questions 1, 2, 3, 4, 5 and 7 of the formulation by the appellant. Similarly, question 3.2 of the respondent refers to the same issue as question 6 of the appellant. I shall start my consideration of this appeal with the issue of the proof of the conviction and sentence of the appellant on which the liability of the respondent for the defamatory publication rests.
A careful perusal of the pleadings and the findings of facts made by the learned trial Judge which were accepted by the Court of Appeal, discloses that appellant was not disputing the fact that he was dismissed from the Nigerian Army on the 6th December, 1971. Indeed the evidence was that he admitted the fact under cross-examination. It is clear from the statement of defence that the defendants are not denying they published the alleged defamatory matter. They are relying on the fact and it is the finding of the learned Judge that appellant was found guilty of criminal offence and convicted by a Military Court and sentenced to over 12 months imprisonment. It is this finding that counsel to the appellant is challenging, despite the fact that appellant during cross-examination at the trial admitted the fact that he was tried, convicted and sentenced to imprisonment of 12 months by a Military Court.
Mr. Ladi Williams, learned Counsel for the appellant in his submission contended that counsel's objection to the question to the appellant whether it was true that he was detained at the Kirikiri Prison as a result of a sentence passed on him, was overruled. Learned Counsel contended that the answer was inadmissible. Mr. Williams argued before us that the trial Judge had relied for his finding of proof of the conviction on this inadmissible evidence. The Court of Appeal also relied on the admission as proof of the conviction of the appellants. Learned counsel, therefore relied on Owonjyin V Omotosho (1961)1 All N.L.R. 304, 308; [1961) 2 SCNLR 57 and Kale V Coker & Ors. (1982)12 S.C.252, 257-8, for the submission that a court cannot act on inadmissible evidence. Continuing on this issue, learned counsel referred to Sections 131 and 224 of the Evidence Act and submitted that the mode of proving, trial, conviction and sentence is governed only by these provisions of the Evidence Act.
It seems to me on the facts of this case unnecessary to go into any detailed analysis of the proper application of these provisions of the Evidence Act. There is no doubt that the provisions of Section 224(1)(a) of the Evidence Act govern the issue of proof of convictions in those cases where evidence of character is relevant. I reproduce hereunder the provision of Section 224(1)(a) of the Evidence Act which is as follows:-
Learned counsel for the appellant has argued that the admission by the appellant, which in any case he regards as inadmissible, did not, even if accepted, satisfy the provisions of Section 224(i)(a) of the Evidence Act which speaks of proof "by the production of a certificate of conviction containing the substance and effect of the conviction." Section 131(1) specifically precludes the giving of evidence of any judgment or proceedings except by production of the judgment of proceedings, except where secondary evidence of it is admissible. Counsel to the appellant's contention seems to me to rest on the assumption that the fact of the conviction of the appellant is an issue in the proceedings, which if it is, ought to be proved by the party who alleges.
In paragraph 4 of his statement of claim, appellant by pleading and stating the natural ordinary meanings of the words complained of to mean
It seems to me hardly disputable that 9' roof of previous conviction is only relevant where it is a fact in issue. Proof of conviction of appellant has become necessary because defendants in paragraphs 3, 9 and 12 of their statement of defence joined issues with the plaintiff as follows:
Although issues had been joined in respect of the fact of the conviction of the appellant, the admission of that fact by the appellant, under cross-examination altered the situation and rendered the situation not one any longer in dispute.
In order to understand this, resort could be had to the elementary rule of pleading that what has been admitted requires no further proof. This is supported by Section 74 of the Evidence Act which provides as follows:
No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings; provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admission.
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. 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.
The proof of previous conviction in civil cases has always presented difficulties because of the common law rule in Hollington V. F. Hewthorn & Co. Ltd. (1943) 2 All E.R. 35 that a conviction in a criminal case is neither evidence of nor even prima facie evidence of such fact in civil proceeding. This is no longer the law in England and some Commonwealth countries. (See the Civil Evidence Act, 1968, section 2, 11 and Wauchope v. Mordecai (1970)1 All E.R.417). In Goody V. Odhams Press Ltd. (1966) 3 All E.R.369 also a case of libel, the question whether evidence of previous conviction was admissible was considered. Denning, M.R., declared:-
I think that previous convictions are admissible. They started in a class by themselves. They are the raw materials on which bad reputation is built up. They have taken place in open court. They are matters of public knowledge. They are accepted by people generally as giving the best guide to his reputation and standing. They must of course be relevant, in this sense, that they must be convictions in the relevant sector of his life and have taken place within a relevant period such as to affect his current reputation, but being relevant they are admissible.
It seems to me Mr. Williams is oblivious of the fact that the fact of the conviction of the appellant was in issue because the appellant put his character in issue by claiming that he retired voluntarily in the Nigerian Army as a Captain after serving meritoriously or 9 years. It was for this reason that the fact of his conviction, and sentence, and consequent dismissal from the Nigerian Army became critical in rebuttal of his claim for good reputation. The evidence of criminal conviction which respondent sought to tender and appellant seeks to exclude is not evidence tending to prove that appellant ought not to have a good reputation. No, it is evidence, and indeed irrefutable and most cogent evidence that the appellant in fact does not have the reputation he claims. I agree entirely with Mr. Adesanya for the respondents that appellant having admitted the fact of his conviction and sentence by a Military Court, the question of proof no longer is in issue. Appellant has not disputed the validity of the sentence of the Military Court which remains valid:-See Ojiako V. Ogueze (1962)1 All N.L.R. 58. This also covers the averment in p&agraph 12 of the statement of defence where the defendant relied on the truth of the publication:-See Bakare V. Ibrahim (1973) 6 S.C.205.
The second issue is whether the respondent can rely on the defence of privilege under section 9 off the Defamation Law, 1961. The two defence, relied upon by the respondents are those of fair comment and justification. The relevant part of section 9 of the Defamation Law which provides for the defences states as follows:-
The Schedule to the Defamation Law deals with the subject matter of Newspaper statement having qualified privilege. Part 2 of the Schedule provides for Statement Privileged without Explanation or Contradiction. This relates to fair and accurate report of the proceedings in public of the legislature of any part of the Commonwealth outside Nigeria, of an international organisation of which Nigeria is a member, or a conference to which Nigeria has sent a representative, of an international court, etc. This is not relevant to this case.
Part 3, in so far as is relevant provides in paragraph 14 as follows:-
A reading together of sections 9(1 )(2) and paragraph 14 of Part 3 of the Schedule to the law suggests that a publication in a newspaper of the matters mentioned in the Schedule is privileged and the defence of such privilege is available to a defendant unless the plaintiff can prove that the publication was made with malice or that the defendant has been requested by the plaintiff to publish in the newspaper in which the original publication was made a reasonable correction and has refused or neglected to do so, or has done so in a manner not sufficiently in the circumstances amounting to a suitable con~ection. It is the contention of learned counsel to the appellants, Mr. Williams, that the respondent has not brought their defence within the protection of the provisions of section 9(1) and paragraph 14 of Part 3 of the Schedule to the law. It was submitted that the Nigerian Army did not fall within the purview of the institutions contemplated, since it was neither a creation of statute, nor a Government Department. Counsel argued that paragraph 14 will only apply where the publication is a fair and accurate report or summary of Exhibit "Dl." Exhibit "P1" which contains comments not in Exh. "Dl" is not a copy of Exhibit "Dl." Learned counsel submitted that there must be strict compliance with the provisions of paragraph 14 before a person can be deprived of his right to protect his reputation. Finally, it was argued that Exhibit "Dl" being a public document can only be proved in accordance with section 96(2) of the Evidence Act, namely by the production of the certified true copy of it. In the circumstances Exhibit "DI" having not been so proved is not admissible in evidence and therefore could not be relied upon as a defence to the claim.
In his reply to these submissions, learned counsel to the respondents submits that Exhibit "D2" a letter addressed to the appellant by the Military Authorities was pleaded by the defendant. Accordingly, and relying on Section 97(b) of the Evidence Act, when appellants have failed to produce the original, respondents were entitled to produce and tender the file copy. I
shall deal first with the admissibility of Exhibit "Dl" severely criticised by learned counsel to the appellant. Learned counsel had relied on the provisions of Section 96(2) of the Evidence Act which prescribes the conditions for the admissibility of secondary evidence in respect of documents when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or any person legally bound to produce it after notice to produce such document had been served on him without positive results.
There was evidence in this case that Exhibit D2 was issued by the Military Authority and addressed to the appellant. 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
See Section 97(b) of the Evidence Act. The words italised above are applicable in this case. 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. I have already reproduced the provision of paragraph 14 of part 3 of the Schedule to the Defamation Law. I have also reproduced the averments in paragraphs 3, 9, and 12 of tthe statement of defence of the respondent, which contain the defences of fair comment and justification. Exhibits "Dl", "D2" were published and issued by the Nigerian Army Public Relations Directorate for the information of the public. I do not think Mr. Williams for the appellant is correct in his submission that the Nigerian Army is not a Department of Government, and therefore does not come within the definition of the institutions named in paragraph 14 merely because it is a creation of statute under Act No.26 of 1960. 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.
I think respondent has shown that the words complained of are not only a statement of fact, but also comments; and that there is a basis of fact in the conviction of and dismissal of appellant from the Nigerian Army, for the comment contained in the publication complained of:-See Kemsley V. Foot (1952) A.C.35~7. 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.
In addition to the defence of fair comment, respondent relied on the defence of justification where he so pleaded in paragraph 12 of the statement of defence. I have already covered this issue in this judgment. I wish to elaborate on the reasons I have given earlier. It is well settled that the onus lies on the respondent to prove the truth of the words in their ordinary and natural meaning:-See Dumbo v. Idugboe [1 983J 1 SCNLR 29. In Digby v. Financial News Ltd. (1907)1 K.B. 502 at p.509. Collins, M.R., said:
The gist of the libel continues to be the most relevant consideration. The moment the defendant proves the sting or gist of the libel to be true, a defence of justification has been established:-See Sutherland V. Stopes
The sting of the libel in the instant case is the publication that appellant was dismissed from the Nigerian Army, after his conviction for a criminal offence and sentenced to imprisonment for more than twelve months. These were the allegations admitted by the appellant under cross-examination at the trial. Thus the respondent on the admission of the appellant of the truth of the allegations discharged the burden on him to justify the allegations made.
By all reasonable assessment this appeal stands out as one of the most scandalous that has in recent times come before our courts. This is a case where a plaintiff fully aware of the fact that he has no reputation to protect, brings an action to court claiming N500,000 in respect of an allegation which he very well knew to be true. Thus the respondent in this case has a complete defence to the action even if he had made the statement maliciously. It has been said in M'Pherson V. Daniels (1829)10 B & C. 263:-
The truth of the allegation is an answer to the action, not merely because it negatives malice, but because the plaintiff has no right to a character free from that imputation. In Cookson y'. Harewood, reported in Chapman v. Ellesmere (1932) 2 K.B. 431 at p.485, Greer L.J. said;
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
Judgement Delivered by
I have had the pleasure and advantage of reading in advance the judgment just delivered by my learned brother, Karibi-Whyte, J.S.C., and I find that his opinions on all the issues raised in this appeal accord with mine.
Accordingly, I hereby adopt his opinions as mine. I find no merit in this appeal and I hereby dismiss it with N 500.00 costs to the respondents.
Judgement Delivered by
I have a preview of the judgment just delivered by my learned brother, Karibi-Whyte, J.S.C. and I entirely agree with his reasoning.
It seems so clear to me too that the respondent herein made out a defence of fair comment and justification. It is indeed an abuse of the right of appeal which our Constitution has so generously bestowed on Nigerian citizens that the appellant should have pursued a cause he very well knows was false through the courts to this last court of appeal. I too dismiss the appeal with N 500 costs to the respondent.
Judgement Delivered by
I have read in advance the lead judgment of KaribiWhyte, J.S.C., and I entirely agree with his conclusion that this appeal has no merit. 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. I find no merit in this appeal and I accordingly dismiss it.
Judgement Delivered by
have had the privilege of a preview of the lead judgment of my learned brother,
Karibi-Whyte, J.S.C. I entirely agree with his reasoning and conclusion that the
appeal has no merit. And for those same reasons which I hereby adopt, I too find
no merit in the appeal. It is accordingly dismissed with