VICTOR MUKETE AND OTHERS (APPELLANTS)

                                   v.

1. NIGERIAN BROADCASTING CORPORATION

     2. D. SECTION EBAKO (RESPONDENTS)

                      (1961) All N.L.R. 502

 

Division: Federal Supreme Court

Date of Judgment: 18th September, 1961

Case Number: FSC 291/1961

Before: Brett, AG. C.J.F.

             Mbanefo, C.J.E.R.

                                        Bellamy, AG. C.J. Lagos

 

Appeal from the High Court (Southern Cameroons) in Consolidated Actions for Defamation.

The appellants brought three actions against the respondents for alleged defamation contained in a passage of a broadcast made by the second respondent over the first respondent's broadcasting network. The first respondent is a statutory corporation created under the provisions of the Nigerian Broadcasting Corporation Ordinance, Cap. 133.

The Statement of Claim did not contain any plea that the words were published of and concerning the appellants in relation to offices held by them; nor a plea of innuendo to the like effect; nor did it contain an allegation of special damage.

The appellants adduced evidence as to offices held by them; but the publication complained of did not refer to their offices and no innuendo was either pleaded or proved.

Evidence was also given to the effect that the words were false, and that the second respondent made the broadcast which was disseminated through the first respondents' radio stations.

There was no evidence that a script was used by the second respondent for the purposes of the broadcast, but it was contended, on the part of the appellants, that the court could infer that a script was used, as such was the generally accepted view of the manner in which such broadcasts are made; and that the defamation constituted Libel rather than Slander.

The respondents, pleaded that the occasion was privileged, and that as the Nigerian Broadcasting Corporation had acted without malice neither of the respondents could be liable in damages. The ground upon which privilege was claimed for the Corporation was that the publication was made in the exercise of a statutory duty imposed on the Corporation by section 10(1) of the Nigerian Broadcasting Corporation Ordinance, Cap. 133.

The respondents contended privilege as pleaded; and further that the words, if defamatory, constituted Slander and not Libel, as there was no evidence before the court that a script was used, and the court was not entitled to infer such fact without evidence, that since the words did not expressly impute a criminal offence or did not refer to the appellants in relation to offices held by them (nor was any innuendo to like effect pleaded or proved), they were not slanderous per se, and therefore special damage should have been pleaded and proved by the appellants in order to succeed in their actions. There was no evidence of any special damage.

The trial Judge held:

(1)     that the passage complained of referred to and was defamatory of the appellants;

(2)     that the court was justified in inferring that the broadcast was read from a written script; that it was Libel and not Slander and that proof of special damage was not required; but

(3)     that the occasion was privileged, and, as the Corporation had acted without malice, neither of the respondents was liable in damages; and dismissed the action.

The appellants appealed to the Federal Supreme Court.

On Appeal:

HELD:

(1)     With regard to privilege; if a statutory body wishes to establish that it is exempt from the general law of the land in matters which may gravely affect the reputation of others, it must be able to point either to express words of exemption, or to words imposing a duty of such a nature that exemption is necessarily implied. The duty imposed on the respondent corporation by section 10(1) of the Ordinance can be carried out adequately without any such exemption, and no implied exemption can be read into it. The occasion was therefore not privileged in this case.

(2)     The internal arrangements of the respondent corporation cannot be regarded as a matter of common knowledge so as to entitle the trial court to infer that the broadcast was made from a script, with no evidence at all to support such inference. The publication proved was a broadcast oral publication, and if actionable at all was actionable as Slander and not as Libel.

(3)     Since the words published did not impute a criminal offence or did not expressly refer to offices held by the respondents, and since no innuendo to such effect was pleaded or proved, the appellants could not succeed without pleading and proving special damage.

Appeal dismissed.

Ordinance referred to:-

Nigerian Broadcasting Corporation Ordinance, Cap. 133., section 10(1).

APPEAL from the High Court (Southern Cameroons) in consolidated actions for Defamation.

Adesanya for the Appellants.

Bentley for the First Respondent.

Second Respondent absent and unrepresented.

Brett, Ag. C.J.F.:-This is an appeal from the decision of the High Court of the Southern Cameroons dismissing the claims of the plaintiffs Victor Mukete, John Mukete and Chief Abel Mukete in three consolidated actions for damages for defamation.

The defamation complained of consists of the following passage in a news programme broadcast by the first respondent on the 4th and 6th July, 1960:-

Mr Daniel Ebako, C.P.N.C. opposition member in the Kumba Town Council, has called on a Commission of Inquiry into the affairs of both the Market and Land Committee of the Council.

He said that areas of land are being allocated to non-natives without consultation and that some section had also been transferred by the Health Officers without documents of transfer.

He alleged that some Missionary Societies were at present engaged in an extensive acquisition of land without due consultation and therefore wanted the Council to specify the extent of their individual lands.

Continuing Mr Ebako said that the main aim of calling for an enquiry to be instituted was that not only were the indigenous natives involved in the illegal transfers of land, but those whom he described as outsiders were involved. He accused Chief Abel Mukete to have been supporting this group including members of his family.

Continuing, Mr Ebako opposed the N.A. Land proposals to extend the Kumba Township to a 4 miles radius.

The trial Judge held (1) that the passage complained of referred to, and was defamatory of the plaintiffs Chief Abel Mukete and John Mukete, but not the plaintiff Victor Mukete; (2) that he was justified in inferring that the broadcast was read from a written script; that it was libel and not slander; and that proof of special damage was not required; but (3) that the occasion was privileged, and as the Nigerian Broadcasting Corporation (hereinafter called the Corporation) had acted without malice neither it nor the second defendant was liable in damages. In this Court, Mr Adesanya, who appeared for the appellants, abandoned the appeal against the finding that the publication did not refer to Victor Mukete, and agreed that in view of the concession which he had made in the court below it was not open to him to question the finding that, as the case for the plaintiffs was framed, if it failed against the Corporation it must fail also against the second defendant. His initial argument was directed solely against the finding that the publication was made on a privileged occasion.

The ground on which privilege is claimed is that the publication was made in the exercise of the statutory duty imposed on the Corporation by the Nigerian Broadcasting Corporation Ordinance. Section 10(1) of the Ordinance reads as follows:-

It shall be the duty of the Corporation to provide, as a public service independent and impartial broadcasting services by means of wireless telegraphy and by television for general reception within Nigeria.

Mr Bentley submits, on behalf of the Corporation, that once it is found, as it has been found in this case, that the Corporation acted without malice and with impartiality no action for defamation will lie in respect of the publication of any item of local news of a kind likely to interest listeners in the part of Nigeria to which the broadcast is broadcast is specially directed. If the learned trial Judge had not accepted this submission I should hardly have thought it worth serious consideration, and I have no hesitation in rejecting it. If a statutory body wishes to establish that it is exempt from the general law of the land in matters which may gravely affect the reputation of others, it must be able to point either to express words of exemption, or to words imposing a duty of such a nature that exemption is necessarily implied. The duty imposed by the subsection cited above can be carried out adequately without any such exemption, and no implied exemption can be read into it.

Counsel further addressed us on the question whether the trial Judge was correct in holding the publication to be a libel and, if he was not, whether it is actionable without proof of special damage. What the Judge said in his Judgment was "The great majority of broadcasts in Nigeria are by their nature given from written scripts. I arrive at the inference that the programme 'Cameroons Calling' broadcast from Lagos and culled in part from reports received from this territory was read from a written script and I fall in with the generally accepted view that the defamation was libel rather than slander." No admission had been made on the subject, and although according to popular belief the balance of probability may be in favour of the learned Judge's inference I do not consider that the internal arrangements of the Corporation can be regarded as a matter of common knowledge so as to entitle the court to draw such a conclusion with no evidence at all to support it. I would hold therefore, that all that has been proved is a broadcast oral publication, and that if it is actionable at all it must be so as slander, not as libel.

Special damage has not been alleged or proved, and the question arises, whether the publication is actionable as slander without it. I agree with the trial Judge that the publication does not impute a criminal offence, but it is said that the words were spoken of Chief Abel Mukete and John Mukete in relation to offices held by them. This was not pleaded, and although evidence was given as to offices held by these two plaintiffs the publication complained of does not refer to their offices, and no innuendo was pleaded. In these circumstances I do not consider that they can recover damages for slander. I would therefore dismiss the appeal with costs to the Corporation of 25 guineas against the three appellants jointly and severally. The second respondent did not appear and was not represented and I would make no order for costs in his favour.

Mbanefo, C.J. (East):- I concur.

Bellamy, Ag. C.J. (Lagos):- I concur.

Appeal dismissed.