HONOURABLE CHIEF SECTION L. AKINTOLA (PLAINTIFF)
F. U. ANYIAM (DEFENDANT)
(1961) All N.L.R. 529
Division: High Court of Lagos
Date of Judgment: 17th July, 1961
Before:Suit No. LD/405/60Lambo, J
Action for Libel.
The plaintiff, the Premier of the Western Region of Nigeria, sued for damages for libel. He alleged that the defendant had falsely and maliciously published words which cast doubt upon his parentage. Prior to the institution of the proceedings, the plaintiff's solicitors had written to the defendant asking for (a) payment of £1,000 compensation for the libel and (b) publication, in a prominent part of the "Daily Express" and the "West African Pilot", of an apology as drafted and attached to the letter. The defendant neither paid the said sum of £1,000 nor published the apology sought. He published, however, an apology not in the terms of the plaintiff's draft.
The defendant pleaded (a) that the words written by him concerning the plaintiff were not actionable per se, (b) Mistake, (c) that he had no intention to libel the plaintiff and (d) Accord and Satisfaction; contending that the publication of an apology, although not in the terms of the plaintiff's draft, amounted to such Accord and Satisfaction as discharged the plaintiff's right of action.
(1) Anything written or printed, which reflects on the character of another and is published without lawful justification or excuse, is a libel.
(2) A person who publishes a libel cannot escape liability therefore by showing that it was published without intention to defame.
(3) In an action for libel the defendant cannot successfully plead Accord and satisfaction unless he has satisfied in full the demands for compensation and redress made by the plaintiff.
Judgment for the Plaintiff.
Cases referred to:-
O'Brien v. Clement, 153 E.R. 920; (1846) 15 M. & W. 435; 15 L.J. Exhhibit 285; 7 L.T.O.S. 142; 10 Jur. 395.
Hulton (E) and Co. v. Jones, 79 L.J.K.B. 198; (1910) A.C. 20; 101 L.T. 831; 26 T.L.R. 128; 54 Sol. Jo. 116; (1908-10) All E.R. Rep. 29.
Shepherd v. Whittaker (1875) 32 L.T. 402; (1875) L.R. 10 C.P. 502.
Newstead v. London Express Newspaper Limited (1940) 1 K.B. 377; (1939) 4 All E.R. 319; 109 L.J.K.B. 166; 162 L.T. 17; 56 T.L.R. 130; 83 Sol. Jo. 942.
Cassidy v. Daily Mirror Newspaper Limited, (1929) 2 K.B. 331; 98 L.J.K.B. 595; 141 L.T. 404; 45 T.L.R. 485; 73 Sol. Jo. 348.
Nathan and others v. Ogdens Limited, 22 T.L.R. 57; 94 L.T. 126.
Hirachand Punamchand and others v. Temple, (1911) 2 K.B. 330; 80 L.J.K.B. 1155; 105 L.T. 277; 27 T.L.R. 430; 55 Sol. Jo. 519.
Edet Akpan Afia v. United Africa Co. Limited, (1958) 3 FSC 43.
Ordinance referred to:-
Evidence Ordinance, Cap. 62, section 148(d).
ACTION for damages for Libel.
Rotimi Williams, Q.C. (with him Odesanya and Olakunri) for the Plaintiff.
Okorodudu (with him Atta) for the Defendant.
Lambo, J.:-The plaintiff in this action, the Honourable Chief S.L Akintola, is the Premier of the Western Region of the Federation of Nigeria, and has brought this action against the defendant, Mr F. U. Anyiam, a Company Director, claiming the sum of £20,000. The writ of summons which was filed on the 8th November, 1960, reads as follows:-
The plaintiff claims against the defendant the sum of £20,000 being damages for printing and publishing a libel of and concerning the plaintiff in a booklet entitled "Among Nigerian Celebrities" at 39 of which occurred a sentence that the plaintiff is a "Son Of Chief Sawe Of Ilesha And Alice." Defendant has by this publication falsely and maliciously cast an unwarranted and unjustified doubt upon plaintiff's paternity and his parentage.
Pleadings were filed. In paragraph 3 of the statement of Claim, the plaintiff averred that his father Solomon Akintola and his mother Mobolade Akintola (née Oyeniya) are both natives of Ogbomosho. In paragraph 7 he claimed that it was false and malicious to describe him as a "son of Chief Sawe of Ilesha and Alice." And in paragraph 8 he averred that by the publication of the said words the defendant meant and was understood to mean that he was not really the son of his parents, i.e., Solomon Akintola and Mobolade both of whom are natives of Ogbomosho.
By his statement of Defence the defendant denied the libel but went on, in paragraph 7 thereof, to plead in the alternative that if the said words were libellous then he would contend that the plaintiff's right of action had been discharged by an apology, which he caused to be published on the front page of the West African Pilot newspaper of 26th October, 1960. A copy of the newspaper was tendered and admitted in evidence as exhibit 'F'.
The plaintiff gave evidence and called three witnesses, namely, Bolade Ogunfowokan, a clerk in the Chambers of plaintiff's Solicitors; Jacob Adeyemo Oroge, a Customary Court President at Ikirun and Victor Ladipo Lajide, a Building Contractor at Ogbomosho. The witness Bolade Ogunfowokan had testified as regards the delivery of a letter dated 21st October, 1960, to the defendant. A copy of the letter was admitted in evidence as exhibit 'H'.
The plaintiff, in his evidence, admitted knowing the defendant. He saw the publication at 39 of the booklet entitled "Among Nigerian Celebrities" (exhibit 'A') concerning his parentage. He gave his father's name as Solomon Akintola of Ogbomosho and his mother's as Mobolade Akintola also of Ogbomosho. He denied knowing Chief Sawe of Ilesha or Madam Alice. When asked how he came to be concerned about the publication in the booklet, exhibit A, he explained that many of his friends invited his attention to page 39 of the booklet wherein his parents were mentioned as Chief Sawe of Ilesha and Alice and they felt that he (the plaintiff) must have been deceiving them about his parentage. He said he confirmed to them that his father's name is Solomon Akintola and his mother's Mobolade Akintola. On being further asked what he was going to do about the publication, he assured them that he would place the matter in the hands of his Solicitors, hence the present proceedings.
The plaintiff, in answer to cross-examination, explained that the primary purpose of bringing this action is to show that his claim to be the son of Solomon and Mobolade Akintola is a correct one and further that he would like to remove any doubt which this publication has created in the minds of those who know him; secondly, he would like to receive whatever damages the court might feel to award for the harm the publication has done to his reputation. The reaction of his friends, he said, is that he had been deceiving them. These friends had been voting for him from year to year as a son of Ogbomosho. The plaintiff said he was dissatisfied with the apology contained in the West African Pilot because it was insufficient and was not published with the consent of his Solicitors as per the draft attached to the letter of October 21st, 1960 (exhibit 'H') addressed to the defendant by his said Solicitors; secondly, because the defendant did not stop distributing the booklet and, thirdly, because he had not corrected the publication in the 2nd edition of the booklet as he promised to do. He (plaintiff) would however, be satisfied if the defendant immediately withdrew the unsold copies from circulation on getting his Solicitors' letter. He went on to say that that, of course, would not undo the damage for which he is claiming compensation.
Oroge, one of the plaintiff's witnesses, said he was shocked when he read page 39 of exhibit 'A' concerning the plaintiff's parentage, as he had always known him to be a native of Ogbomosho. After reading the publication he had a doubt in his mind as to whether the plaintiff was still the son of Solomon and Mobolade Akintola of Ogbomosho. He spoke to the plaintiff about the publication. The plaintiff himself had before then read the booklet. Later the plaintiff told him he had placed the matter in the hands of his Solicitors.
The last of the plaintiff's witnesses, Victor Lajide Ladipo, told the court that the plaintiff has represented Ogbomosho in the Regional and Federal Legislatures since 1951; that the plaintiff has always held himself out as a native of Ogbomosho and that he knew his parents (Solomon and Mobolade Akintola) very well. He too had read page 39 of the booklet (exhibit 'A') containing a biographical note of the plaintiff; that was in October 1960, during the Independence Celebrations. When he read it his reaction was that Chief Akintola was an impostor and that really he was not a native of Ogbomosho. The defendant is a well-known writer and a public figure and the Publicity Secretary of a political party known as the N.C.N.C. Until the court decides otherwise, he will still have his doubts about the plaintiff's parentage.
The defendant alone gave evidence for the defence. In March 1960, he sent the plaintiff a circular letter (exhibit 'B') which is headed "Some Nigerian Celebrities', Publication Of." The penultimate paragraph of the letter reads:-
I shall be grateful if you will be good enough to send to me at your earliest convenience a brief history of yourself and your latest photograph for inclusion. I will be thankful if you do this before the end of this month....
In reply the plaintiff's Private Secretary wrote as follows:-
Western Region Of Nigeria
Private Secretary to The Premier
Ref: No. PS. 73/ 4th August, 1960
"Some Nigerian Celebrities"-Publication of
I am directed by the Hon. Premier, Chief S.L Akintola to refer to your letter of the 9th of March on the above subject and to enclose herewith a short Note and a photograph of the Hon. Premier for use in your publication.
2. If however you want a block of the Hon. Premier please contact the Amalgamated Press Limited, 5/7 Apongbon Street, Lagos, to lend you one.
3. A copy of this letter is being sent to the Amalgamated Press Limited for information.
I am, Sir,
Your Obedient Servant,
Private Secretary to the Premier
Mr Fred. U. Anyiam,
34 Victoria Street, Lagos.
The letter and attachment were admitted in evidence as Exhibits 'C' and 'C1' respectively. It should be noted that exhibit 'C1' contains no reference to the plaintiff's parents. Others to whom the circular letter (exhibit 'B') was sent also replied and, as a result, the defendant published the booklet, exhibit 'A'. He later heard from the plaintiff's Solicitors who complained that the effect of his biographical note at 39 of the said booklet was to cast unwarranted and unjustified doubt upon the plaintiff's paternity and indeed his parentage. He was asked to stop further distribution of exhibit 'A' and take steps to correct the false imputations on the plaintiff's legitimacy. The defendant replied by the letter of October 13, 1960, saying that he had already distributed the pamphlets. The defendant, in order to show that he instructed all his selling agents to return all unsold copies to him, applied for, and obtained, an order to amend paragraph 8 of his Statement of Defence by the addition of the following:-
And the further fact that the defendant stopped the sale of all copies of the offending pamphlet unsold as at the date of receipt of the plaintiff's Solicitors' letter dated the 11th October, 1960.
The Agents in response returned a total of 8,660 copies (exhibit 'J'). Of the 10,000 copies he originally ordered only 9,000 copies were delivered to him, so that 340 copies were in circulation. The 10,000 copies cost him £650 and each copy, after giving out complimentary copies, was sold for 3s. If he had sold all the 340 copies he would have realised a total of £51. He has no objection to an order of Court that further sale of the pamphlet be stopped. He did not intend deliberately to damage the plaintiff. Following the receipt of the plaintiff's Private Secretary's letter (exhibit 'C') he contacted the Amalgamated Press Limited and a young man from there had given him on a slip ofpaper the incorrect names of the plaintiff's parents. The young man was not called as a witness and the piece of paper was not produced in court. It never occurred to him to telephone to the plaintiff for further information about his parentage, although he could have done so if he had wished.
It was submitted on behalf of the defendant that the words in the offending publication are not per se defamatory of the plaintiff; that the birth of the plaintiff from his known parents was not attacked; that the court should consider the circumstances of the publication; that the offending passage at 39 of the pamphlet is a mere mistake which anyone could have made. Counsel submitted that the plaintiff's right of action was discharged by reason of the publication of an apology contained in the West African Pilot of October 26th, 1960 (exhibit 'F') and further submitted that there was sufficient Accord and Satisfaction. Chief Williams, for the plaintiff, replied to all the points raised by the learned Counsel for the defence.
The defendant's defence, as far as I can see it, can be put under three heads, namely:-
(1) That the words are not actionable 'per se'.
(2) That the reference to the plaintiff as son of Chief Sawe of Ilesha and Alice is a mistake and that the defendant has no intention to libel the plaintiff.
(3) That the publication of an apology discharges the plaintiff's right of action and, for this purpose, relies on the defence of Accord and Satisfaction.
With regard to the first point, I am satisfied from the evidence of the plaintiff and his witnesses that when they read the publication at 39 of the pamphlet "Among Nigerian Celebrities" they were shocked and thought the plaintiff was an impostor and not really a native of Ogbomosho. The witness Lajide said that the plaintiff had represented Ogbomosho in the Regional and Federal Legislatures since 1951. He would still have doubts about the plaintiff's parentage until the court decided otherwise.
In O'Brien v. Clement, 153 E.R. 920, Parke B., stated as follows:-
Everything printed or written, which reflects on the character of another, and is published without lawful justification or excuse, is a libel, whatever the intention may have been.
The description of the plaintiff as a son of Chief Sawe of Ilesha and Alice casts, in my view a reflection on the character of the plaintiff and portrays him as a liar. The defendant stated that he obtained the information from a young man who had written it on a slip of paper. The young man was not called as a witness and the particular paper containing the information was not produced. I do not believe this statement and hold that the offending publication was made without lawful justification or excuse.
Lord Shaw of Dunfermline in Hulton (E) & Co. v. Jones (1910) A.C. 20 at 26 says:-
The question for your consideration is whether you think the libel designates the plaintiff in such a way as to let those who knew him understand that he was the person meant. It is not necessary that all the world should understand the libel; it is sufficient if those who know the plaintiff can make out that he is the person meant.
Secondly, the defence of mistake or absence of malicious intention cannot avail the defendant. In the case of Shepherd v. Whittaker (1875) 32 L.T. 402, through the negligence of a compositor, the plaintiff's name and particulars of his dissolution of partnership, which ought to have appeared in a column headed "Dissolution Of Partnership", appeared in a column headed "First Meeting Under The New Bankruptcy Act." The defendant inserted detailed apologies in three newspapers. The innuendo of the declaration was that the plaintiff was bankrupt. Brett J., observed as follows:-
But high damages were only natural and proper in a case where bankruptcy is imputed, for nothing can be more damaging to a tradesman than an imputation of bankruptcy. The defendant has only himself to blame, for he ought at once to have submitted to a verdict sufficient in amount to carry costs.
The plaintiff is a politician. I hold that nothing can be more damaging to him, as a politician, than an imputation that he has dishonestly induced the people of a constituency to cast their votes for him over a number of years. With regard to the defendant's submission that his intention was to glorify the plaintiff and chronicle him as one of Nigerian celebrities, Lord Loreburn L.C., stated at 23 of Hulton (E) and Co. v. Jones. (1910) A.C. 20 as follows:
A person charged with libel cannot defend himself by showing that he intended in his own breast not to defame or that he intended not to defame the plaintiff, if in fact he did both.
Again in Newstead v. London Express Newspapers Limited, (1940) 1 K.B. 377, du Parcq, L.J., said at 397 thus:-
If a defendant has been careful and precise, he may by his care avoid the risk of a successful action; but he cannot in my opinion escape liability merely by showing that he was careful and that his intentions were good.
And in Cassidy v. Daily Mirror Newspapers Limited, (1929) 2 K.B. 331, Russell L.J., expressed the opinion that:-"Liability for libel does not depend on the intention of the defamer but on the fact of defamation."
The learned Counsel for the defendant submitted that there was Accord and Satisfaction and that, therefore, the plaintiff's right of action has been discharged by the publication of an apology. With respect, I am unable to agree that this is a correct statement of the law having regard to the evidence before me. In Volume I of Stroud's Judicial Dictionary, 3rd Edition, Accord and Satisfaction is defined as:-
An agreement between two at the least to satisfy an offence that the one hath made to the other, when a man hath done a trespasser, or such like, unto another for the which he hath agreed with him to satisfy and content him with some recompense, which, if it be executed and performed, then, because that this recompense is a full satisfaction for the offence, it shall be a good barre in the law...
In support of his submission, learned Counsel for the defendant referred to the apology published in the West African Pilot (exhibit 'F'). In my view, for the defence of Accord and Satisfaction to succeed, the defendant must have satisfied the demands contained in the plaintiff's Solicitors' letter (exhibit 'H') of 21st October, 1960, namely:-
(a) Payment of £1,000 compensation for the libel; and
(b) Publication of the draft apology attached to the letter in a prominent part of the Daily Express and the West African Pilot.
The defendant denied receiving the letter, but I am satisfied that he received it. The draft apology reads:-
In a Booklet entitled Among Nigerian Celebrities it was published at 39 that the Hon. Chief S.L Akintola is a son of Chief Sawe of Ilesha and Alice. This publication is false and without foundation. I hereby tender my full and unreserved apologies to the Hon. Chief S.L Akintola for the harmful effects which the publication had upon his reputation.
(Sgd.) F.U. Anyiam.
The defendant did not pay the £1,000 or publish the draft apology in the manner indicated in plaintiff's Solicitors' letter aforesaid. The apology he published was headed "Correction."
That being so, the contention of the defence that there was Accord and Satisfaction is, in my view, without merit-vide cases such as Nathan and others v. Ogdens Limited, 22 T.L.R. 57; Hirachand Punamchand and others v. Temple, (1911) 2 K.B. 330 and Edet Akpan Afia v. United Africa Co. Limited, (1958) Volume III Selected Judgments of FSC, at 43.
The so-called "Correction" in the West African Pilot of 26th October, 1960, is in fact an apology. The right heading would have been an "Apology"; but it was not used. I do not know why, unless, to quote Bairamian F.J., in Amalgamated Press and others v. Allen, FSC 118/60 of 8th June, 1961, "it be that the defendant was affected by the obduracy of pride."
I find it difficult to agree with the defendant that the publication was an innocent and not a malicious one. It was suggested to the defendant under cross-examination that his account as regards a young man from the Daily Service giving him the information which he published was untrue. Although he denied the suggestion, he, however, closed his case without calling the young man as a witness or explaining what attempts, if any, he had made to do so. Section 148(d) of the Evidence Ordinance, Cap. 62 of the Laws of the Federation of Nigeria and Lagos, 1958, raises a presumption adverse to the defendant's omission to call the young man as a witness. Furthermore whilst, admittedly, the defendant could have telephoned for particulars of plaintiff's parents, he did not do so. From these facts, therefore, the inference, in my view, is irresistible that the defendant acted maliciously when he described the plaintiff as a son of Chief Sawe of Ilesha and Alice, and I so find.
For all the above reasons, I hold that the publication in question is a libel on the plaintiff as by it the defendant has falsely and maliciously cast an unwarranted and unjustified doubt upon plaintiff's paternity and parentage.
Having thus disposed of the question of liability I now come to the question of what I should award to the plaintiff by way of damages.
In assessing these I propose to follow the principles laid down at pages 647 and 648 of Gatley on Libel and Slander (4th Edition) and also to consider whether there are any facts to be taken into consideration in aggravation or mitigation of damages.
By way of mitigation of damages, the defendant stated that he immediately withdrew all unsold copies of the pamphlet from circulation. He tendered them in court, and there were 8,660 copies, or about; which if sold would have fetched the defendant some £600. He is prepared to submit to an order of Court that they be destroyed.
It is to be remembered that in a libel action the damages awarded are, for the most part, often entirely without any real connection with any pecuniary loss at all. One is endeavouring to express in terms of money several different things which are not really susceptible of a money valuation in any true sense. One is considering the injury which the plaintiff has suffered which may or may not be capable of pecuniary valuation. One is considering the conduct of the defendant, because one may award punitive or exemplary damages against him. One is considering the deterrent effect, and so forth.
After anxious consideration, however, I have reached the conclusion that I must award to the plaintiff a sum of £1,000 for damages. Defendant will, therefore, pay this sum to the plaintiff.
The defendant must also pay the plaintiff £105 for costs and £35-14s-8d for disbursements.
Judgment for Plaintiff.