CHIEF THE HON. ROTIMI WILLIAMS (PLAINTIFF)
v.
THE WEST AFRICAN PILOT (DEFENDANTS) CHIEF THE HON. SECTION L. AKINTOLA (PLAINTIFF)
v.
THE WEST AFRICAN PILOT (DEFENDANTS) CHIEF THE HON. OBAFEMI AWOLOWO (PLAINTIFF)
v.
THE WEST AFRICAN PILOT (DEFENDANTS)
[1961] 1 All N.L.R. 896
Division: High Court (West)
Date of Judgment: 22nd December, 1961
Case Number: Ibadan Suits Nos. 1/58/59, 1/50/59, 1/60/59
Before: Somolu, J.
Actions for Libel.
The plaintiffs were members of a political party known as the Action Group; the defendants a party newspaper of the National Council of Nigeria and the Cameroon's, a rival political party.
In 1951, an election, contested by both parties, was held in Western Nigeria. Eight years later, in 1959, a series of cartoons was published in the defendant newspaper. These cartoons expressly referred to the 1951 election, and purported to depict scenes involving three principal unnamed characters, members of the Action Group, engaging in questionable and dishonourable activities both during and immediately after the 1951 election Campaign.
The plaintiffs brought separate actions against the defendants; each claiming the sum of £30,000 as damages for libel alleged to have been contained in the series of cartoons. The three actions were later consolidated for trial purposes. The three characters depicted were described in the Cartoons as the Fuehrer, the Propagandist and the Brain, respectively. The plaintiffs alleged that these cartoons suggested that the N.C.N.C. and not the A.G. actually won the 1951 election but was deprived of its success by illegal activities on the part of the plaintiffs; that the persons described as the Propagandist, the Fuehrer and the Brain, were intended to be and were understood by the readers of the defendant newspaper to be Chief the Hon. Akintola, Chief the Hon. Awolowo who was the leader of the Action Group, and Chief the Hon. Rotimi Williams respectively.
It was further alleged that the plaintiffs inscribed words in three of the cartoons which meant and were understood to mean that prior to the 1951 election the three plaintiffs conspired to raise a large loan in order to win the election by bribery; that one of the plaintiffs advocated that the party should employ persons of disreputable character in order to win the election by impersonation and fraud, and another conspired with the other two plaintiffs to use such methods to win the election; that the cartoon published in the issue of the defendants' newspaper of the 7th April, 1959 depicted one of the plaintiffs with an expression of grave disappointment on his face and carried words set out in the Statement of Claim, which, the plaintiffs pleaded, meant and were understood to mean that the plaintiffs conspired to bribe N.C.N.C. successful candidates in order that they might join the Action Group and thus give the latter party a majority in the Legislature of Western Nigeria.
After denying specific allegations contained in the plaintiffs' Statements of Claim, the defendants pleaded in the following terms:
"Insofar as the said words and/or pictures and/or cartoons consisted of or constituted statements of fact, the same are in their natural and ordinary meaning and/or with the alleged meanings, true in substance and in fact. Insofar as the said words and/or pictures and/or cartoons consisted of or constituted expression of opinion, they are fair comment made in good faith and without malice upon the said facts which are a matter of public interest."
Chief Rotimi Williams adduced evidence that he was able to identify himself with the person depicted as the Brain, because the person depicted was a man of immense and generous physical proportion and that he was of such physical appearance; that the person depicted as the Propagandist was shown as having prominent tribal marks, like Chief the Hon. Akintola; that the person depicted as the Fuehrer wore spectacles in all the cartoons and Chief the Hon. Awolowo wore spectacles at all times. The other two plaintiffs corroborated most of the evidence given by Chief the Hon. Rotimi Williams. The plaintiffs called one Witness, a Mr Latif Jakande, a journalist, political commentator, and also a member of the Action Group.
It was argued for the defendants that the persons depicted in the cartoons were merely symbolic of the Action Group and that was the reason why names were not used in those cartoons but labels; that the comments published constituted fair comment on matters of public interest; and that even though they were biased, prejudiced, or even strong, the defence should not fail for those reasons, the real test being whether the defendants honestly believed them; that the three plaintiffs were able men in the top rank of society and in their professions and thus the evidence of another high-ranking member of society and a distinguished man in his own line of profession was not the type of evidence contemplated by the law to prove whether the defendants had been brought into contempt and ridicule by the publication. It was further urged on their behalf that an ordinary reader of the Pilot should have been brought in to testify that as the witness did not say that he thought the less of the plaintiffs because of the cartoons complained of, the actions should be dismissed.
HELD:
(1) The purpose of an action for libel or slander is to vindicate the character of the person defamed; accordingly, the proper party to bring the action is the person defamed.
(2) In an action for defamation, the identity of the person claiming to have been defamed must be easily ascertainable and if there is any doubt about the identity, or if the context points clearly to the fact that the reference is to a large group, of which the plaintiff forms a part, and there is nothing in it to point to him particularly and severally, then the plaintiff cannot recover.
(3) In an action for defamation, the question whether the words complained of are defamatory or not is for the jury to decide; but before the question is submitted to them, it is for the trial Judge to rule, upon the evidence, whether the words complained of are capable of referring to the plaintiff and capable of bearing a defamatory meaning in the minds of reasonable persons in the circumstances of the particular case.
(4) The Defence contained in the "rolled up" plea is one of fair comment only and not of justification; but where there was no fact truly stated, the question whether the comment was fair or was honestly made cannot arise.
(5) Once a publication has been found to be a libel, the law presumes damage.
(6) In the assessment of damages, the court may take into consideration the conduct of the defendant before the action, after the institution of the action, and in court during the trial; the nature of the Libel; the mode and extent of publication; the absence of a retraction or an apology; and other matters of the same kind.
(7) The court may take judicial notice of the fact that a particular news-paper is a national daily in Nigeria and has readers outside Nigeria.
(8) The defence contained in the "rolled up" plea does not avail a defendant newspaper proprietor where the publication of the libel is not contemporaneous with the events reported.
Judgment for the Plaintiffs
Cases referred to:-
Silken v. Beaverbrook Newspapers Limited, (1958) 2 All E.R. 516; 102 Sol. Jo. 491.
Hough v. London Express Newspaper, (1940) 2 K.B. 507; (1940) 3 All E.R. 31; 109 L.J.K.B. 524; 163 L.T. 162; 56 T.L.R. 758; 84 Sol. Jo. 573.
Knupffer v. London Express Newspaper Limited, (1944) A.C. 116; (1944) 1 All E.R. 495; 113 L.J.K.B. 251; 170 L.T. 362; 60 T.L.R. 310; 88 Sol. Jo. 143.
Capital Counties Bank v. Henty, (1882), 7 App. Cas. 741; 52 L.J.Q.B. 232; 47 L.T. 662; 47 J.P. 214; 31 W.R. 157.
Nevill v. Fine Art and General Insurance Co., (1897) A.C. 68; 66 L.J.Q.B.195; 75 L.T. 606; 61 J.P. 500; 13 T.L.R.
97; (1895-9) All E.R. Rep. 164.
Hulton (E) & Co. v. Jones, (1910) A.C. 20; 79 L.J.K.B. 198; 101 L.T. 831; 26 T.L.R. 128; 54 Sol. Jo. 116; (1908-10) All E.R. Rep. 26.
Awolowo v. Zik Enterprises Limited & others (Privy Council No. 19 of 1956) (Judgment delivered 2-10-58) (Unreported).
Ratcliffe v. Evans, (1892) 2 Q.B. 524; 61 L.J.Q.B. 535; 66 L.T. 794; 56 J.P. 837; 40 W.R. 578; 8 T.L.R. 597; 36 Sol. Jo. 539.
South Hetton Coal Co. v. North Eastern News Association, (1894) 1 Q.B. 133; 63 L.J. Q.B. 293; 69 L.T. 844; 58 J.P. 196; 42 W.R. 322; 10 T.L.R. 110.
Hobbs v. C.T. Tinling & Co. Limited, (1929) 2 K.B. 1; 98 L.J.K.B. 421; 141 L.T. 121; 45 T.L.R. 328; 73 Sol. Jo. 220; (1929) All E.R. Rep. 33.
Lincoln v. Daniels, (1960)3 All E.R. 3.
ACTIONS for Libel.
Milmo, Q.C. (with him Ademola) for the Plaintiffs.
Okorodudu (with him Akinjide) for the Defendants.
Somolu, J.:-These are three libel actions taken by Chief the Honourable Rotimi Williams (hereinafter to be called the first plaintiff), Chief the Honourable S.L Akintola (hereinafter to be called the second plaintiff) and Chief the Honourable Obafemi Awolowo (hereinafter to be called the third plaintiff) against the West African Pilot Limited (hereinafter to be called the defendants) and P.C. Agbu who was claimed to be the Editor of the newspaper, the West African Pilot, which was alleged by the plaintiffs to have published the libels complained of by them at the time material to these cases, i.e. between 21-3-59 and 7-4-59. However, when hearing began in the consolidated cases on 30-11-61, the plaintiffs withdrew against the said P.C. Agbu in each of the cases and he was thereupon struck out from the suits. It did not appear that he was ever served with the writ of summons, and although Chief Okorodudu announced himself as appearing for him as well as for the West African Pilot Limited, it is difficult for me to see how he could properly do so.
By their writs of summons filed in these cases, each of the plaintiffs complains of "libel contained in the following publications of the West African Pilot:-
(a) Cartoon with explanatory words captioned 'History of the A.G. No.8' appearing on page 4 of the issue of March, 21st, 1959.
(b) Cartoon with explanatory words captioned 'History of the A.G. No. 9' appearing at the right hand bottom corner of page 6 of the issue of April 4th, 1959.
(c) Cartoon with explanatory words captioned 'History of the A.G. No. 10' appearing at the bottom of page 2 of the issue of April 7th, 1959."
Each claims the sum of £30,000 for these alleged libellous publications against the original two defendants, jointly and severally, and now those claims must be considered as against the defendants at the trial only, after the with-drawl against Agbu.
According to the Statement of Claim in each case, the first plaintiff was the Attorney-General and Minister of Justice for the Western Region of Nigeria, the second plaintiff was the Federal Minister of Communications and the third plaintiff was the Premier of the Western Region of Nigeria, at the times of the publications complained of as stated above. It is pleaded also that the first plaintiff has been a member of the Action Group party since 1951, and has always been a member of its National Executive Committee; the second plaintiff has been a member of the said party since its foundation in March 1950, has always been a member of its National Executive Committee and its Deputy Leader since 1953.
It was averred that in 1951 there was a general election to the Western House of Assembly, and that the principal political parties which contested that election were the A.G. and the N.C.N.C., and that in consequence of the fact that the A.G. won a majority in that election, that party formed the Government of the Region. The West African Pilot between 20-2-59 and 7-4-59 published a series of ten cartoons which were intended to deal and understood by the readers of the paper to deal with what happened at the 1951 election. In them, it was suggested that it was the N.C.N.C. and not the A.G. that won the said 1951 election, and it was averred also that the allegations in the publications are false The cartoons depict three persons or characters invariably described as Fuehrer, Propagandist and the Brain, respectively, and it was further averred that the person described as the Fuehrer was intended to be and was understood by the readers of the paper to be the third plaintiff who was and is still the Leader of the A.G., that the person described as the Propagandist was intended to be and was understood by the readers of the paper to be the second plaintiff, and that the person described as the Brain was intended to be and was understood by the readers of the paper to be the first plaintiff who had been described in other issues and/or pages of the said paper as "the brain behind the Action Group" and the brain behind the Government." It is also said that the pictorial sketches described in the said publications as the Fuehrer, Propagandist, and the Brain bore the likenesses of the third, second and first plaintiffs respectively and that the Government of the Western Region at the time the action was taken (and indeed till now) was formed by the A.G. According to the further averments in the Statement of Claim, the cartoon of 21-3-59 showed the plaintiffs holding a meeting together and that the following words were inscribed on it:-
Now comrades, we must mortgage all our properties to our last pair of trousers in order to raise a colossal loan with which to operate our bribe-and-win scheme!,
with the words "A Master Plan" inscribed at the bottom of it.
It was pleaded that the said publication meant and was understood by the readers of the paper to mean that prior to the 1951 election aforesaid the plaintiffs conspired to raise a colossal loan in order to win the said election by bribery. The Statements of Claim go on to aver that the cartoon published in the issue of the paper on 4-4-59 showed the first plaintiff addressing the second and third plaintiffs, in the following words:-
We must also employ thugs and ex-convicts for mass personating and fraud at the polls so we could command over-whelming majority in the new legislature.
And, as at its bottom the words, "The Brain Speaks", were inscribed, it is alleged that the publication meant and was understood by the readers of the paper to mean that at a top secret meeting in 1951 the first plaintiff advocated that the A.G. party should employ persons of disreputable character in order to win the 1951 election by impersonation and fraud and that he conspired with the other two plaintiffs to use such methods to win the said election. The plaintiffs aver that the cartoon contained in the issue of the paper dated 7-4-59, showed the first plaintiff with an expression of grave disappointment on his face, and that the cartoon carried the following words on the left-hand side:-
"Flash!
N.C.N.C. Wins Majority
In the West
A.G. Plans To Usurp
N.C.N.C. Majority
1951 Elections"
and the following words were inscribed on the top-right-hand side:-
It's Incredible, it's Terrible that the N.C.N.C. could win the Majority in spite of Our Great Scheme, the only Hope now is for us to Bribe All the 'Soft' N.C.N.C. Victors to Cross Carpet to our Party, with the words "Plans For the Last Card" inscribed above all these. The plaintiffs say that the publications meant and were understood by the readers of the paper to mean that after an N.C.N.C. victory at the said 1951 elections the plaintiffs conspired to bribe all wavers among the N.C.N.C. successful candidates so that they might join the A.G. and so give the latter party the much needed majority to win; of course it is said that these imputations are false and that in consequence of all these imputations the plaintiffs have been injured in their characters... etc. The defendants admit the professions of the plaintiffs, the ownership of the West African Pilot and its very wide circulation throughout Nigeria; that there was a general election in 1951 into the Western House of Assembly, the publications of the cartoons complained of and the words inscribed on each of them, while they denied or did not admit the other averments in the Statements of Claim; they admitted the public offices held by the plaintiffs, but they denied that the publications complained of were offending or defamatory. As I understand paragraph 5 of their Statement of Defence, the defendants denied that the cartoons complained of were intended and/or were understood by readers of the paper (Pilot) to deal with what happened at the 1951 election as averred in paragraph 12 of the Statement of Claim, but they claimed that the N.C.N.C. won the said 1951 general election to the Western House of Assembly. After their denials of the specific averments or allegations made by the plaintiffs, the defendants ended their Statement of Defence in these words:-
Insofar as the said words and/or picture and/or cartoons consisted of or constituted statements of fact, the same are in their natural and ordinary meaning and/or with the alleged meanings, true in substance and in fact. Insofar as the said words and/or pictures and/or cartoons consisted of or constituted expression of opinion, they are fair comment made in good faith and without malice upon the said facts which are a matter of public interest.
When the defendants were ordered by this Court (Coram: Sir Samuel Quashie-Idun, C.J.) to file particulars of the facts on which the alleged comments were based, the following was filed in court on 14-4-60:-
Particulars of the Facts in Support of Plea of Fair Comment
It is a matter of fact and undeniably known to the generality of the people of Nigeria that:-
(a) The N.C.N.C. and the A.G. are two major political parties in the activities of which the citizens of Nigeria are vitally interested.
(b) The said political parties fought against each other in the 1951 general elections, the proceedings and outcome of which were and still are of great public concern.
(c) The loyalty of citizens, election candidates and/or Members of the Western House of Assembly to any political party, the transfer of their allegiances from one political party to another and the absence of any such loyalty or allegiance are questions constantly canvassed in the press and among all sections of the population.
(d) The method which any political party adopts or pursues-before, during and after a general election with a view of gaining and/or keeping power constitute a subject of public discussion and disputed opinion.
At the hearing of the cases, learned Counsel for the defendants applied for an adjournment to enable him to amend these so-called particulars because they did not comply with his own idea of such particulars and because they did not accord with the case he intended to put for the defence, but I rejected this application for the reasons which I gave in my ruling and I do not wish to elaborate more on them here, but I hope to deal more with these particulars later on in this Judgment.
The three plaintiffs gave evidence on their own behalf and called one witness, but the defendants called no witness; Chief Okorodudu told the court that he was resting his case on the plaintiffs' case. In their evidence, the plaintiffs supported the material averments set out in their Statements of Claim. The first plaintiff said he had no doubt in his mind, after reading the cartoons complained of and other publications in the other issues of the same paper tendered in evidence, that he was the person depicted as the Brain in the said cartoons and that the person depicted in them as the Propagandist was the second plaintiff. He told the court that although there was no other publication from which he derived help to identify the person depicted as the Fuehrer, he could say that the person so depicted in the cartoons was the third plaintiff because the word Fuehrer was a German word popularly used in this country since the Hitler regime in Germany to designate the leader, and that the third plaintiff was known as, and popularly called, the Leader of the A.G. He emphasised that the resemblances in the persons depicted in the various cartoons to the plaintiffs make it undeniably clear that the said cartoons referred to them, or could be taken to refer to them by readers of the West African Pilot. For example, he said that the person depicted as the Fuehrer wore spectacles in all the cartoons, and the third plaintiff is known to wear spectacles at all times; he said that the person depicted as the Propagandist was shown as having tribal marks in the cartoons, and that the second plaintiff was known to have prominent tribal marks; he also said that the person depicted in the cartoons as the Brain was a man of immense and generous physical proportions, and that he the first plaintiff was of such physical appearance. The three of them were depicted in the cartoons as being A.G. top men constantly communing together, and he said that indeed the three of them were topnotchers of that party, and also that they met and worked together for the 1951 elections to the Western House of Assembly. As for himself, he told the court that he did not contest the election into the House of Assembly as he had no constituency, but that he was later nominated as a special Member of the Western House of Chiefs as a result of which he became eligible to be appointed a Minister in the Government which was formed by his party; he added that upon becoming a Minister as aforesaid he became responsible for legal matters in the Government and the Executive Council. The second plaintiff corroborated most of what the first plaintiff said about himself (second plaintiff) and added that he clearly identified the person depicted as the "Propagandist" in the cartoons as himself because of the tribal marks shown on the face of the person so depicted, as he was the only top-ranking member of the A.G. with prominent tribal marks in constant conference with the third plaintiff who was the Leader of the party. He also pointed out that in other issues of the same paper he had been described as the "Talking Drum", and the "Nigerian Counterpart of the German Goebbels", who was Hitler's Minister of Propaganda (i.e. Chief Propagandist). Having regard to all these things, he had no doubt that he was the person depicted as the Propagandist in the cartoons complained of; he also had no doubt that the first plaintiff was the person depicted as the Brain and that the third plaintiff was the person depicted as the Fuehrer in them. The third plaintiff also confirmed what the first and second said about the identification of themselves and himself in the cartoons complained of, but he added other significant facts. He said that it would be easy to identify him with the person depicted as the Fuehrer in the cartoons because the German word "Fuehrer" means Leader, and that as far as the A.G. is concerned he is the only person popularly known as and called the "Leader", having been appointed to that post in 1951 by the National Executive Committee and the Parliamentary Council; he told the court that he had held that post since. He further identified himself with the person depicted as the Fuehrer in the cartoons because of the cap that that person wore in them-he said it resembles the cap which he has popularised by use, called the "Awolowo Cap." He added that the first and second plaintiffs are his closest associates and right-hand men in the A.G. since 1951-he (third plaintiff) being the Founder and Leader, the first plaintiff having joined the party about 1951 and been appointed to the National Executive Committee since then; while the second plaintiff also joined since 1951, was appointed to the National Executive Committee since then, becoming Deputy Leader since 1953 after the death of the late Chief Bode Thomas, the first holder. The third plaintiff categorically affirmed that his party, the A.G., won the majority in the 1951 general election into the Western House of Assembly and that that was why his party was called upon by the then Lieutenant-Governor of the Western Region, to form the Government a few days after the results of the election were known. He tendered exhibit 15 to corroborate his story. The only witness called for the plaintiffs was one Jakande; he corroborated the evidence of the plaintiffs as to the identification of each of them with the characters depicted as Fuehrer, Propagandist and the Brain, respectively, in the cartoons which form the subject-matter of these actions, and he said he had no doubt about those identifications; he had been a regular reader of the Pilot for some years and he read the issues containing the alleged libels at the time of their publication. He also admitted that he himself was a well-known political commentator, and he told the court that having seen the cartoons in question he formed the opinion that the plaintiffs were portrayed as men who used disreputable methods like bribery, thuggery, fraud and mass impersonation by criminals not only to get voters to vote for their party in the 1951 general elections into the Western House of Assembly, but also as persons who planned to bribe successful N.C.N.C. candidates at that election to win a majority, and so form the Government.
Chief Okorodudu, in his address, attacked the plaintiffs' case on a few vital points. He submitted that the court should reject the evidence of the identity of the plaintiffs with the characters depicted in the cartoons complained of (i.e. exhibits 7, 9 and 10) because the cartoons were concerned with depicting the plans, strategy and policy of the A.G. as a party, and that the individuals shown there were only used to represent the party. As such, the plaintiffs cannot take action and since they have taken such actions they must fail. He called attention to the fact that apart from the cartoons in exhibits 7, 9 and 10, there is nowhere in the other exhibits where the person depicted as the Fuehrer can be identified with the t