CHIEF F.R.A. WILLIAMS (APPELLANT)
v.
DAILY TIMES OF NIGERIA LTD (RESPONDENT)
(1990) All N.L.R. 1
Division: Supreme Court of Nigeria
Date of Judgment: 9th January, 1990
Case Number:
Before: Bello C.J.N., Obaseki, Eso, Nnamani, Uwais, Kawu, Agbaje, J.J.S.C
The appellant commenced this action against the respondent in the High Court where he claimed N250,000.00 as exemplary damages; or in the alternative N100,000.00 as aggravated damages for libel which he claimed was contained in the Evening News newspaper of Monday 19th March, 1979, published by the respondent company. The banner headline of the newspaper on its first page read in very bold capital letters:
"F.R.A. WILLIAMS SUED FOR N5M"
followed by
"Tussle over the Will of a father"
With the appellant's picture displayed by the side of the publication.
The newspaper reported inter alia that Chief Williams had been sued for N5 million by the children of a deceased client for "losing or otherwise failing to make available the February 1978 Will of the deceased."
"Or in not seeing that the February 1978 draft Will of the deceased was duly executed between February 1978 when he (the deceased) completed amending and causing the same to be typed out and 12th May, 1978 when he died" the children, according to the newspaper, also asked that Chief Williams be ordered to "surrender to the court the true last Will of the deceased made in February 1978 now in his custody or power and or copies thereof and that the same pronounced for in solemn form."
The respondents put up a plea of privilege which was rejected by the trial court on the ground that what was published was not a report of the proceedings that took place in open court but was of the Writ of Summons, before it (the writ) was served on the appellant. The respondent was found liable. The trial Judge did not accept that the libel attracted exemplary damages but awarded aggravated damages of N100,000.00.
The appeal of the respondent to the Court of Appeal was dismissed though the damages awarded was reduced to N60,000.00. This reduction formed the basis of the appellant's appeal to the Supreme Court.
The respondent on his part filed a Respondent's Notice of its intention to contend that the damages of N60,000.00 awarded the appellant by the Court of Appeal be substantially reduced. The appellant objected to this notice on the ground that the respondent's complaint being very crucial and fundamental should have been raised through a Notice of Appeal and not a Respondent's Notice.
He also submitted that what the court ought to do was to construe Order 8, rule 3 of the Supreme Court Rules 1985 which provides for variation or confirmation of judgment the context of Order 8 itself and that rule 3 should be looked at from the background of rule 2 with the interpretation of the former not detracting from the latter.
The respondent on the other hand contended that since he was only asking for a reduction of the damages awarded and not a reversal of the decision of the Court of Appeal (a decision to which he agreed) it was not necessary for him to file a Notice of Appeal.
HELD:
(1) The Respondent's Notice of Intention to contend that the decision of the Court below be varied postulates that the approach of the court below was correct but that the conclusions had adversely affected the respondent who thereby requests that by the same reasoning the judgment should be varied.
(2) The Respondent's notice is circumscribed within the bounds of what is strictly speaking mere variation. A respondent cannot take out a Respondent's Notice where he intends:
(a) to dispute the jurisdiction of the court;
(b) to contest the competency of the entire proceedings;
(c) to maintain the absence of a fundamental prerequisite.
Therefore a respondent seeking to set aside a finding which is crucial and fundamental to a case can only do so through a substantive cross-appeal.
(3) Order 8, rule 3(1) of the Supreme Court Rules 1985 contemplates that the party applying for variation or confirmation of the judgment was a successful party in the court below in respect of that aspect of the judgment which he requires variation.
(4) The word "vary" in Order 8, rule 3(1) of the Supreme Court Rules 1985 must be limited in its narrow meaning to cover a respondent who has accepted a judgment of the lower court and having not appealed desires a variation of some arithmetical and other details not crucial and fundamental. In the instant case, the grounds on which the respondent is pressing for a further reduction of the damages challenge some crucial feelings of the lower court and cannot be pursued by a Respondent's Notice; they are properly the subject of a cross-appeal.
(5) The words "All Appeals" in Order 8, rule 2 of the Supreme Court Rules 1985 include cross-appeals. Therefore when the provision stated that all appeals should be brought by notice, it is intended that even a cross-appeal has to be brought by way of notice of appeal.
(6) The assessment of damages in a libel action is usually subjective, so that an award in an unrelated case cannot be a guide.
(7) Exemplary damages are awarded in the following instances:
(a) where statutes prescribe them;
(b) as punishment for aggressive, arbitrary or unconstitutional actions of servant of the Government;
(c) a where the defendant's tortuous act has been outrageous or scandalous and was done with a guilty knowledge, the motive being that the chances of economic advantage outweigh the chances of economic or even physical penalty, an act of deliberateness.
(8) Aggravated damages result out of malevolence or spite on the part of the tortfeasor or just the manner of committing the wrong which injures the plaintiff's proper feeling of dignity and pride and are awarded to compensate the plaintiff for any aggravated harm to such feelings.
(9) An appellate court ought not to upset an award of damages by a trial court merely because if it had tried the matter it might have awarded a different figure. Award of damages can only be interfered with by an appellate court if it is shown by the appellant:
(a) that the trial court acted or proceeded upon wrong principles of law; or
(b) that the amount awarded by the trial court is manifestly or extremely high or low; or
(c) that the amount was an entirely erroneous estimate which no reasonable tribunal will make.
Appeal allowed.
Cases referred to:
Adekeye v. Akin-Olugbade, (1987) 3 N.W.L.R. (Pt. 60) 214.
African Continental Seaways Ltd. v. Nig. Dredging Roads and General Works Ltd., (1977) 5 S.C. 235.
B.E.O. Ind. (Nig.) Ltd. v. Maduakoh, (1975) 12 S.C. 91.
Broome v. Cassell, (1972) A.C. 1079.
Bucknor-Maclean v. Inlaks, (1980) 8-11 S.C. 1.
Dumbo v. Idugboe, (1983) 1 S.C.N.L.R. 29.
Eboh v. Akpata, (1968) 1 AII N.L.R. 220.
Eliochin (Nig.) Ltd. v. Mbadiwe, (1986) 1 N.W.L.R. (Pt. 14) 47.
Enang v. Adu, (1981) 11-12 S.C. 25.
Flint v. Lovell, (1933) 1 K.B. 354.
James v. Mid-motors, (1978) 12 S.C. 31.
L.C.C. v. Ajayi, (1970) 1 AII N.L.R. 291.
L.C.C. v. Ogundemuren, (unreported) suit No. S.C. 335/69 of 26/1/71.
Odi v. Osafile, (1985) 1 N.W.L.R. (Pt. 1) 17.
Oguma Associated Co. (Nig.) Ltd. v. I.B.W.A., (1988) 1 N.W.L.R. (Pt. 73) 653.
Oyekan v. B.P. (Nig.) Ltd, (1972) 1 AII N.L.R. (Pt. 1) 47.
Zik's Press Ltd. v. Ikoku, 13 W.A.C.A. 188.
Statutes referred to:
Rules of the Supreme Court of Nigeria, 1961.
Rules of the Supreme Court of Nigeria, 1977.
Rules of the Supreme Court of Nigeria, 1985.
S.C. 21/1987
Chief F.R.A. Williams, S.A.N. in person.
Chief G.O.K. Ajayi, S.A.N. for Respondent. (With Miss. Y. Odia)
Eso, J.S.C.:-This is a well argued appeal. We had the advantage of two top Senior Advocates (though one of them was a party to the action and therefore he appeared in person) excellent briefs and excellent oral submissions. Again two very important issues have been raised to wit:-
(1) whether or not a "Respondents Notice" and not a substantive "Notice of Cross Appeal" is the proper procedure for contending that a finding or determination which is crucial or fundamental to the Respondent's case be reversed; and
(2) in regard to the assessment of aggravated damages, what should the Court take or not take into consideration?
It is however necessary to trace the history of the case up to this Court. I rely on what I consider to be a concise and correct assemblage of the facts by the Court of Appeal per Adenekan Ademola, J.C.A.:
"Chief F.R.A. Williams, S.A.N., commenced the action in the Lagos High Court where he claimed the sum of N250,000.00 as exemplary damages; or in the alternative N100,000.00 as aggravated damages for libel which he claimed was contained in a newspaper publication known as the "Evening News" of Monday 19, 1979. The newspaper was published by the Defendant Company-the Daily Times of Nigeria Ltd.
The article complained of was duly pleaded and it reads as follows-
"One of the country's legal luminaries, Chief Rotimi Williams, (popularly known as F.R.A. Williams), has been sued for N5 million by the children of a deceased client. Thirteen children of late Michael Oredolapo Onayemi, nine of them infants, are claiming the amount from Chief Williams for "losing or otherwise failing to make available the February 1978 Will of the deceased." "Or in not seeing that the February 1978 draft Will of the deceased was duly executed between February 1978 when the Chief completed amending and causing the same to be typed out and 12th May 1978 when the deceased died." The children are also asking that Chief Williams be ordered to "surrender to the court the true last Will of the deceased made in February 1978 now in his custody or power and or copies thereof, and that the same pronounced for in solemn form."
Three other co-executors of the Will are joined by the children in their demand that "probate of the pretended last Will of the deceased dated 27th October, 1975, propounded by the defendants be revoked and pronounced against.
Trustees: The three others are Mr Vincent A.O. Ogunba, Mrs Olaronke Adesola Agymann-Bempah and Mrs Yetunde Alusi. The two women are children of the deceased. The children are also asking for a declaration that the defendants are trustees for the intended beneficiaries and "to the extent provided for in the draft Will by the deceased in February 1978 after the Chief's legal superintendence and which Will he had negligently and or otherwise prevented the deceased from executing."
The banner headline of the Newspaper on its first page read in very bold capital letters-"F.R.A. WILLIAMS SUED FOR N5m followed, in less bold letters by the words "Tussle over the Will of a father."
The picture of the plaintiff was displayed by the side of the publication.
The defendants put up a plea of privilege which was rejected by the trial court on the grounds that what was published was not a report of the proceedings that took place in open court but was of the writ of summons and indeed published by the Newspaper even before that writ was served on the plaintiff!
The trial court found the defendant liable in libel. Beckley, J., who tried the case did not accept that the libel attracted exemplary damages but he awarded aggravated damages of N100,000.00. The Judge added-
"In the present case the plaintiff on seeing the publication, wrote the defendant as per Exhibit B asking for an apology, and the defendant replied as per Exhibit C. That was the only letter from the defendant before the plaintiff took action. The defendant never apologised. The defendant did not even publish the end of the suit to show that the plaintiff was eventually vindicated, but instead published other further banner headlines about the plaintiff as follows:-
(1) Evening Times March 1st 1980 Court Awards N100. Rotimi to pay costs. The full picture of the plaintiff appeared in the front page of the Newspaper.
(2) Evening Times, Friday, March 14th August 1980
Case put off as Rotimi stay away in the front page of the Evening Times From the subsequent publications by the same paper, it appears to me that the intention of the Newspaper in this particular case was not to inform the public but to ridicule the plaintiff."
Ex. C, which was referred to reads-
"Chief F.R.A. Williams
Chief Rotimi Williams' Chambers, 208/212 Broad Street,
Lagos.
Dear Sir,
Your letter Ref. No. FRAW/pca dated 19th November, 1979 has just been passed to the Legal Department by the addressee, the editor of Evening Times.
We have instantly started to investigate the circumstances leading to the publication.
It is only after obtaining some result that we can properly advise the editor in terms of the specific stipulations contained in your letter.
We hope you will offer us co-operation by exercising patience.
You will be hearing again from us soon.
Yours faithfully,
For THE DAILY TIMES OF NIG. LTD. EKE ODUBA
LEGAL OFFICER"
The defendant appealed to the Court of Appeal on the issues of liability by relying on the defence of privilege. After a most learned treatise the court (as per Adenekan Ademola, J.C.A.) dismissed the appeal on this ground. However on the issue of damages the court held-
"It has not been established by the appellant in his argument that the learned Judge proceeded on wrong principle in the award of damages. What was taken into consideration which ought not to be taken into consideration were the two other publications of the same paper about the respondent which have not been proved to be false and had been said by the learned Judge to have been done to ridicule the respondent. The inference to ridicule the Respondent by the publications should not be readily and necessarily be drawn. Besides, I am of the view that to grant what was wholly claimed in this suit as exemplary-unliquidated damages was not in step with the practice of the court. In the case of Lardner v. The Sketch Publishing Company (supra) which was used by the learned Judge in the present case and which was the case in which imputation of dishonesty was made against a senior member of the legal profession in the conduct of his work, the court, (the same High Court of Lagos State) made an award of N50,000.00. Having regard to the trend of inflation, I think an award of say N60,000.00 at the time the judgment was given would in my view be adequate compensation to the respondent."
Nnaemeka-Agu, J.C.A. (as he then was) who concurred with Adenekan Ademola, J.C.A., on the issue of liability said nothing about damages while Owolabi Kolawole, J.C.A., dismissed the appeal on liability and also agreed "that the damages of N100,000.00 awarded be reduced to N60,000.00.
Thus, the Court of Appeal reduced the award of N100,000.00 to N60,000.00 on the arguments of the court aforesaid. The plaintiff has however appealed against this decision to this Court. In this case, because reference will be made to the grounds relied upon by the appellant, it is necessary, and I do believe it is only when it is so necessary that the grounds of appeal should be copied out in a judgment, to set out the grounds of appeal relied upon by the appellant and also the subsequent reaction by the respondent's counsel.
Chief Williams' grounds of appeal read-
(i) The court below erred and misdirected itself in law in holding as follows:
"what was taken into consideration which ought not to be taken into consideration were the two other publications of the same paper about the respondent which have not been proved to be false and had been said by the learned Judge to have been done to ridicule the respondent. The inference to ridicule the respondent by the publication should not readily and necessarily be drawn.
Particulars of Error and Misdirection
(a) Each of the two publications contained a repetition of the libel or the substance thereof.
(b) Accordingly, at least to the extent of such repetition, the judgment in favour of the plaintiff on the issue of liability of the defendant for libel is, in law, conclusive proof of the falsity of the subsequent publications and also of the tendency of the said publications to bring the plaintiff to public ridicule.
(c) There is in any event no burden on the plaintiff to prove that the subsequent publications were inaccurate.
(d) The display of the said articles and the prominence given to the plaintiff both by words and picture was before the learned trial Judge and did not appear to have been considered by the Court of Appeal.
(ii) The court below erred in law in holding:-
"I am of the view that to grant what was wholly claimed in this suit as exemplary-unliquidated damages was not in step with the practice of the court."
Particulars of Error
There is no rule of law or of practice which states that what a court can award as unliquidated damages must be less than what is claimed by the party in whose favour such award is made.
(iii) The court below erred in law in treating the award made by Ajose-Adeogun, J., in Lardner v. The Sketch Publishing Co. as the standard award for ascertaining the quantum of damages which it would be reasonable to award to the plaintiff."
Now, on 2nd October 1986, that is a few weeks after the filing of the Notice of Appeal by Chief Williams, Chief G.O.K.
Ajayi, S.A.N., filed the following Notice:
"Notice by Respondent of Intention to Contend that the Decision of the Court Below be Varied Order 8, rule 3(1) Supreme Court Rules 1985
TAKE NOTICE that upon the hearings of the above appeal the Respondent herein intends to contend that the decision of the Court below dated 27th of May, 1986 shall be varied as follows:-
That the damages of N60,000.00 awarded to the Plaintiff be further substantially reduced.
AND TAKE NOTICE that the grounds on which the Respondent intends to rely are as follows:-
(1) In awarding the plaintiff damages of N60,000.00 the court below failed to give effect to its decision that the plaintiff was not entitled to an award of aggravated damages;
(2) The amount of N60,000.00 damages is excessive and amounts to not just aggravated damages, but to exemplary damages.
Dated this 30th day of September, 1986.
(Sgd.) for: G.O.K. AJAYI & CO.,
Respondent's Legal Practitioners,
Unity House (14th Floor),
37, Marina, Lagos."
It is to be emphasised that this Notice was given in pursuance of Order 8, rule 3(1), Supreme Court Rules 1985. The Rule reads as follows-
"3 (1) A respondent who, not having appealed from the decision of the court below, desires to contend on the appeal that the decision of that court should be varied, either in any event or in part, must give notice to that effect specifying the grounds of that contention and the precise form of the order which he proposes to ask the court to make, or to make in that event, as the case may be.
(2) A respondent who desires to contend on the appeal that the decision of the court below should be affirmed on grounds other than those relied upon by that court must give notice to that effect specifying the grounds of that contention.
(3) Except with the leave of the court, a respondent shall not be entitled on the hearing of the appeal to contend that the decision of the court below should be varied upon grounds not specified in a notice given under this rule, to apply for any relief not so specified or to support the decision of the court below upon any grounds not relied upon by that court or specified in such a notice.
(4) Any notice given by a respondent under this rule (in this Order referred to as a "respondent's notice") must be served on the appellant, and on all parties to the proceedings in the court below who are directly affected by the contentions of the respondent, and must be served-
(a) in the case of an appeal against an interlocutory order, within 15 days, and
(b) in any other case, within one month, after the service of the notice of appeal on the respondent.
(5) A party by whom a respondent's notice is given shall file with the Registrar of the court below ten copies of such notice of which one shall be included in the record, and the other copies provided for the use of the Judges.
(6) Omission to give such notice shall not diminish any powers of the court but may in the discretion of the court be a ground for postponement or adjournment of the appeal upon such terms as to costs or otherwise as may be just."
The defendant's counsel, Chief G.O.K. Ajayi, S.A.N., filed no notice of appeal or cross appeal.
The appellant, Chief Williams, objected to this Notice and followed his objection with a Brief. Therein he stated the Questions for Determination as follows-
"In what circumstances, if any, can a defendant who succeeded in persuading the Court of Appeal to reduce the amount of damages awarded by the High Court in favour of the plaintiff, be permitted to argue before the Supreme Court for an order for further reduction if he files no Notice of Appeal but relies only on a Respondent's Notice filed pursuant to Order 8, rule 3 of the Supreme Court Rules, 1985." (Italics supplied by me for effect)
And the Chief then argued in his Brief-
"Complaints Regarding Award of Damages: It is well settled that a party is entit