CHIEF THE HON. ROTIMI WILLIAMS (PLAINTIFF)
THE WEST AFRICAN PILOT (DEFENDANTS) CHIEF THE HON. SECTION L. AKINTOLA (PLAINTIFF)
THE WEST AFRICAN PILOT (DEFENDANTS) CHIEF THE HON. OBAFEMI AWOLOWO (PLAINTIFF)
THE WEST AFRICAN PILOT (DEFENDANTS)
 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.
(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:-
N.C.N.C. Wins Majority
In the West
A.G. Plans To Usurp
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 third plaintiff. In respect of the first plaintiff, he submitted that while it is true that he had been called the brain behind the party (i.e. the A.G.), the brain behind the Government. (i.e. the A.G. government of Western Region) in Exs. 13 and 14 respectively, he urged the court to disregard those descriptions in considering the identification of the person depicted as the Brain in the cartoons with the first plaintiff, as it would be the height of immodesty for the first plaintiff to claim that he was being referred to as The Brain in a party like the A.G. which certainly contains a lot of brains. In respect of the second plaintiff, he asked the court to reject the evidence of his identification with the person depicted as The Propagandist in the cartoons because although exhibits 7, 5, 1, 11 and 12 were said to contain some references to him as The Talking Drum,.... The A.G., Goebbels, The Nigeria Goebbels and liar, etc. Exhhibit 1 which the plaintiffs asked the court to use as the key to the whole series was published on 20-2-59 and that that issue contained no reference to either the first or the second plaintiff-those issues which contained references came later. Finally, on this point as to the identity of the plaintiffs, he submitted that the persons in the cartoons were merely symbolic of the A.G. and that was why no names were used on them but labels. Chief Okorodudu proceeded along this line of reasoning and further submitted that if the cartoons could not be referable to the plaintiffs, the publication could not be defamatory of them. From this point, he dealt with the defence of fair comment raised; he referred the court to the answers he got from the second and third plaintiffs that the N.C.N.C. and the A.G. were the two major political parties that contested the 1951 general elections in the Western Region, that there were changes in the party allegiances after the results were known, that the third plaintiff had made strong attacks on bribery and corruption in the country and condemned electoral fraud, hooliganism, riot, murder, arson, etc., particularly in the Northern Region. He referred to political turmoil in the East and West, and he submitted that what was set out in paragraph 15 in Suits Nos. I/58/59 and I/59/59 and paragraph 16 in Suit No. I/60/59 constituted fair comment on matters of public interest. Even though those comments might be considered biased, prejudiced or even very strong, he said, the defence of fair comment should not fail because of that, as the real test is whether the defendants honestly believed them. If the court is satisfied that they did, then the actions must fail. He cited the case of Silkin v. Beaverbrook Newspapers Limited, (1958) 2 All E.R. at 516. to support his contention. Finally, he turned to the standard of opinion required in a case of this kind and dealt with the question of damages along with it. He recalled that the only witness called for the plaintiffs was Latif Jakande, a topnotcher in the A.G., a very experienced journalist and a versatile political commentator. Chief Okorodudu also recalled that the three plaintiffs were all very able men in the top rank of society and in their professions, and that they were A.G. topnotchers. In the circumstances, he submitted that the evidence of another top-notch member of the A.G. and an equally distinguished man in his own line of profession, too, cannot be the type of evidence which the law contemplates. In his view, it was a matter of the same set of people giving evidence in favour of one another. He submitted that an ordinary reader of the Pilot should have been brought to testify. The standard test of opinion should be that of the ordinary citizen of Nigeria and no one else. How is the court informed what that ordinary man thought of the publications complained of? The answer, he says, is that the court does not know, since such ordinary person was never called to testify. And what is the court to do in the case of such a failure? In his view, the actions must fail. He also said that the witness did not say that he thought the less of the plaintiffs because of the cartoons complained of, and that the essence of libel being to bring the plaintiffs into contempt, ridicule, etc., and there being none in these cases the action should be dismissed. On this part, Mr Milmo for the plaintiffs said there was no possible defence to the actions. He referred to the exhibits, the evidence of the plaintiffs and their witness, Jakande, and the suggestions of others who fit the descriptions in the cartoons; he said that such likely candidates who can equally answer the descriptions given to those in the cartoons, as the plaintiffs, have been forthcoming in the case. He submitted that once the identity of the plaintiffs with the cartoons has been established, as in this case, Judgment should go in their favour. He pointed out that in reality there is no defence of fair comment since the particulars of the facts relied upon have not been supplied according to law, and ended by asking for exemplary damages for the plaintiffs. He cited the case of Hough v. London Express Newspaper, (1940) 2 K.B. 507, to support his contentions.
According to well-known authorities, the proper purpose of an action for libel or slander is to vindicate the character of the person defamed and the proper party to bring the action is, accordingly, the person actually and personally defamed. In other words, the identity of the person who claims to be defamed must be easily ascertainable. If there is any doubt about this identity, or if the context of the libel points clearly to the fact that a large group which the plaintiff or plaintiffs form a part is referred to, and there is nothing special to point to them distinctly and severally, then they cannot recover in their actions: See Knupffer v. London Express Newspaper Limited (1944) A.C. 116, H.L.: (1944) 1 All E.R. 495. It follows therefore that on the basis of the law, as enunciated in this case, and the contention of the defence in these cases, I must examine closely the question of the identity of the plaintiffs and satisfy myself; I am not permitted to take it for granted, because it may well be that the case of the plaintiffs may founder upon that point. Beginning from the cartoon in exhibit 1 in the issue of the Pilot dated the 20-2-59, it is shown that three people who were survivors of the defunct N.Y.M. held a top-secret inaugural meeting of the A.G. in 1950, although it is also clear that no labels were used on any of them. However, the evidence before me is that it was about the year 1950 that the third plaintiff held a meeting with six others to found the A.G., he being the founder. When we come to the cartoon in exhibit 2 the issue of the paper of 9-3-59, the three characters, i.e. the Fuehrer, Propagandist, and Brian, came into the picture and what looks like an obituary of the N.Y.M. and a skeleton were shown; the whole cartoon having an inscription at the bottom of it as follows:-
"Lesson for the new plan."
This cartoon leaves me with no doubt that it was meant to forge a link with the one in exhibit 1 and clearly suggesting that the survivors of the defunct N.Y.M. (I do not know what those initials stand for as there is no evidence to guide me) who held a top-secret meeting to form the A.G. in 1950 and who have in this cartoon learnt a lesson for the new plan were the Fuehrer, Propagandist and the Brain; the link between the two cartoons is very obvious. Exhhibit 3 which is the cartoon in the issue of the paper of 11-3-59, and shows the same characters as in exhibit 2, portrays "The Ace Plan" with the Fuehrer pointing to A.G. 1951 Plans on how to rob the N.C.N.C. of the fruits of its labour and fraudulently seize power in the West. In this cartoon, the Fuehrer who spoke to his two comrades wore the spectacles he had on in exhibits 1 and 2, the Propagandist had the tribal marks on his face more clearly shown on his right cheek than the faint one on the right cheek in exhibit 2; of course the picture in exhibit 3 are bigger than those in Exs. 1 and 2. The link between the three cartoons to me is unmistakable-the three people, having formed the A.G. after the demise of the N.Y.M., decided on a fraudulent method to capture the West in 1951. Although it was the bespectacled Fuehrer who spoke in exhibit 2 when he talked to his comrades about the new plan of "subtle lying propaganda and incitement of tribal hatred", and in exhibit 3 about "The Ace Plan" of spreading anti-Ibo propaganda, there is no doubt that there is nothing to indicate that the other two were not concurring. In exhibit 4 we have the same three characters, but with a difference. The Brain there was unhappy because he failed to get a constituency through which to enter the Legislature, while the Fuehrer and the Propagandist consoled him in these words:-
Don't Be Worried, comrade, We'll be your constituency and we'll always nominate you, once We're in power. We need your fertile brain to enact laws to keep us in power perpetually.
Here, the Fuehrer wore his now familiar spectacles and the Propagandist's tribal marks show prominently on his left cheek. At this point, also, it must be remembered that the evidence was that the first plaintiff did not contest the
1951 general elections to the Western House of Assembly because he had no constituency and was nominated as a Special Member into the House of Chiefs, as a result of which he became a Minister. And when he was Minister, he was in charge of legal matters in the Executive Council. The evidence on these two points are plain and un-contradicted and I accept it. In exhibit 4, the Brain was referred to as "The Indispensable Man." The cartoon in exhibit 5 shows the bespectacled Fuehrer, on the eve of the 1951 regional elections, announcing to the country the formation of the A.G. and engaging in what is shown there as an anti-Kobokobo and anti-Gambari plan. In this cartoon the other two characters were absent. On the front page of this issue was an Editorial headed "Akintola Lies Again" in which the second plaintiff was described as telling deliberate falsehoods, and called "A.G. Goebbels." The cartoon in exhibit 6 depicted the 1951 Regional Election Campaign, showing the Fuehrer indulging in anti-Ibo propaganda. In exhibit 7 we have the first of the cartoons complained about. It depicted "A Master Plan" and the three characters were in attendance. The words shown on it and alleged to be defamatory of the three plaintiffs are as follows:-
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.
It would appear that it was the Fuehrer who was unfolding the plan to his two comrades, and what we have here is a sort of climax on the previous plans relating to fraudulent practices to jilt the N.C.N.C. and fanning tribal hatred. For the first time we find bribery being canvassed by whoever was speaking, and the two others not saying anything against it; indeed it will be strange to suggest anything like a dissent, seeing that progressively the whole plan was evolving with the three characters being together at crucial moments. Exhhibit 8 was another top-secret meeting at which the three characters met again and they apparently congratulated themselves about the success of their propaganda plan to get people to vote their party into power in the West. I should say here that the spectacles of the Fuehrer were there, the tribal marks of the Propagandist were there prominent on the left cheek and the large bulk of the Brain was there too. Then followed exhibit 9. Here, at a top-secret meeting in 1951, the Brain was depicted as setting out before his two comrades (the bespetacled Fuehrer and the Propagandist with prominent tribal marks) the plan to employ thugs and ex-convicts for mass impersonation and fraud at the polls "so we could command over-whelming majority in the new legislature." And did any of the other two present dissent? I can see no evidence of it! This is the second cartoon complained about, but I have no doubt about its nexus with those before it. Exhhibit 10 depicted a meeting of the sam three characters after the results of the elections were known, and it showed the three men in a most unhappy mood after what was claimed to be an N.C.N.C. victory. The three men met and the Fuehrer was depicted as telling his other two comrades what their next plan should be. Underneath the cartoon are the words "Plans for the Last Card" and the Fuehrer was alleged to say:-
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 out party.
For the second time, bribery was canvassed to help their party win majority. Exhibit 13 is only important for the reference in an article at 1 of it in which the first plaintiff was described as the brain behind the party (i.e. the A.G. party) and exhibit 14 is also significant for its reference to the third plaintiff as Leader of the Government and the first plaintiff described in it as the brain behind the Government (i.e. the A.G. of the Western Region).
I have taken very great pains to set out as detailed as I can the contents of the different exhibits tendered in court in support of the plaintiffs' case to make my analysis of them and my conclusions clear. When one goes through the whole series of the cartoons, their captions, letter press and the articles, what impression does one get from the over-all picture? In other words, what inference can I draw from all that is set down in them as to what the average reasonable reader would think in respect of the identity of those referred to in these publications? Am I in a position to say that the said publications read together by the average reasonable regular reader of the paper would say that they point or may point to the plaintiffs? This is my own function as Judge, for it is said:-
The question whether the words complained of are defamatory is for the jury, but before 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.
That is the law as laid down in such cases as Knupffer v. London Express Newspaper Limited, already referred to above, Capital and Counties Bank v. Henty, (1882) 7 App. Cas. 741, H.L., Nevill v. Fine Art and General Insurance Co., (1897) A.C. 68 H.L., Hulton and Co. v. Jones, (1910) A.C. 20 H.L., and the case of The Hon. Obafemi Awolowo v. Zik Enterprises Limited and others (Privy Council No. 10 of 1956) decided on 2-10-58; (Suit No. 270/1952 of the Supreme Court of Nigeria, Lagos Judicial Division). Having considered all the evidence before me in these matters very carefully, and the authorities referred to above in respect of what the court should take into consideration, I am of the opinion that the cartoons complained of are capable of referring to the plaintiffs in the cases. It was submitted on behalf of the defendants that they should have called some other witness other than Jakande, for the reasons given by Chief Okorodudu, but with respect to him I cannot accept that submission. I am told that he is a top-notch in the A.G.! Even then, does that make him cease to be an ordinary reasonable person? I have no evidence to the contrary, and in fact he impresses me as such. I have found him to be an unbiased witness, and he gave his evidence with candour. I took care to watch his demeanour while giving evidence, and I formed the impression that he was a witness of truth. I accept his evidence. It is said that he is a top political commentator, but be that as it may, I am not convinced that he therefore belongs to the special class of persons who cease to be ordinary reasonable citizens. I find that he represents the ordinary reader who can read and understand cartoons. As I have said above, I find that the cartoons complained of are capable of referring to the plaintiffs, and having regard to the evidence of Jakande which I have accepted, and also that of the plaintiffs themselves which I also accept (as I am fully convinced that they told me the truth), it follows then that the publications complained of referred to the plaintiffs and in a defamatory sense. I do realise that I am sitting as judge and jury, but I realise the separate functions I am called upon to exercise in these matters, and I have carefully kept the distinctions in the two functions clear and separate in my mind. It is with a deep appreciation of the heavy responsibility that devolves on me that I accept the evidence tendered before me and that I also make my findings in these respects. It is my opinion that bribery of the electorate, electoral fraud, the employment of thugs and ex-convicts for mass impersonation at an election and the buying of the conscience and allegiance of candidates who have won an election on different platforms constitute dishonourable conduct unworthy of any decent citizen of any country that lays any claim to being progressive and/or civilised. And I do not for one moment think or agree to hold that the average citizens of this region or of Nigeria as a whole are any less decent, less progressive or less civilised in these matters than other peoples in other countries, or that they accept a lower standard of morality in these things. I am not unmindful that there may be a few blackguards and a few black sheep here and there, but in my consideration of these matters I think of the average reasonable persons in this country and not the few depraved persons on the one hand or the few highly touchy and sensitive "quakers" and "puritans" on the other side of the fence. Having come to the conclusions which I have carefully set out above, it follows that I accept the submission on behalf of the plaintiffs that grave charges of fraud and other forms of dishonourable conduct have been levelled against them in the cartoons in Exs. 7, 9 and 10 which are the subject-matters of these actions. It is culpable enough if these charges are levelled against any citizens, but it becomes very much reprehensible when they are laid at the door of highly placed public men without just cause and against men in the foremost places of their professions as is agreed even by the defence; it becomes a reckless and heinous imputation that will make the defendants liable except they can be exonerated on some other ground. One of the submissions made on behalf of the defendants is the defence of Fair Comment. Chief Okorodudu said that the cartoons set out statements of facts and at the same time make comments on them. With this submission I am prepared to agree, to some extent even though I feel, like the learned Counsel for the defence, that the so-called particulars of facts filed are such that they set out nothing actually. However, let me examine them. According to the learned author of Halsbury's Laws of England, 3rd Edition, Vol. 24, pp. 70-77:- the defence of fair comment requires that the material facts on which the comment is based should be truly stated and be a matter of public interest. Leaving aside the so-called particulars of fact, we see that the cartoons made allegations of fact, for example, when it said in the cartoon in exhibit 9 that the Brain, the first plaintiff, told his two other comrades that they must employ thugs and ex-convicts for mass impersonation...., etc., or when it is said in the cartoon in exhibit 10 that the N.C.N.C. won majority in the West and that the A.G. planned to usurp majority. But much as I am prepared to consider these statements in the cartoons, I cannot find any iota of anything being truly stated in them. No effort has been made to show to the court that the plaintiffs or any of them employed thugs and/or ex-convicts for mass impersonation and fraud during the 1951 regional elections in the West, and no comment was even made in the cartoon on this unsubstantiated lie. The plaintiffs have denied doing anything of the sort and I believe them. As regards the facts stated in the cartoon in exhibit 10, not only is the statement that the N.C.N.C. won a majority in the West not substantiated, but in my view it was patently false. The defendants themselves admitted that the A.G. formed the Government of the region after the said elections in 1951. The plaintiffs said they won the majority seats and the third plaintiff told the court that his party was called upon to form the Government upon their winning the majority seats. I believe them. It is passing strange that even though the defendants said they denied this, yet the party, the N.C.N.C., that claimed to win the majority seats never attempted to challenge the formation of the Government by the A.G. that did not win the majority in any of the recognised constitutional manner, e.g. by protest-petition to the Lieut-Governor for his wrong choice, or by action in court. At least there is no such evidence of any sort before me to suggest any of these moves. I do not believe that the Lieut-Governor violated the principles of a two-party parliamentary democracy by asking the party (i.e. the A.G) with no majority in the Western House of Assembly to form the Government in 1951. I believe the plaintiffs on this point, and exhibit 15 supports me. But, even assuming that that was a statement of fact, what is the comment made on it? None. What we have is another unsubstantiated allegation about plan to bribe "soft" N.C.N.C. victors at the 1951 elections aforesaid to cross the carpet to their party, i.e. the A.G. On this point of fair comment, I think Chief Okorodudu was completely mistaken. It is not the accusations of the third plaintiff about bribery, corruption, hooliganism, riots, murder and arson during elections that are in issue in these cases, what are in issue are the alleged facts stated in the cartoons, whether they were truly stated and whether any comments were made on them in the offending cartoons. As I have said above, I could find none and on that score I hereby reject the submissions of learned Counsel for the defendants in respect thereof. For the same reasons, I cannot find the relevance of the case of Silkin v. Beaverbrook Newspapers Limited, cited by him on that point. If there is no fact truly stated, the question whether the comment is fair or is honestly made, as laid down in the Silkin case, cannot arise. There only remains one small point to be disposed of. It was argued on behalf of the defendants that Jakande did not say that the plaintiffs lost a jot of his respect for them as a result of the cartoons complained of, and that no other witness has been called to say so; it was also submitted that there is no evidence before the court to show that the plaintiffs were pointed to, or shunned because of the said publications. With great respect, I do not think that such evidence is necessary at all. Once any publication has been found to be a defamatory libel, the law presumes damage; see Ratcliffe v. Evans, (1892) 2 Q.B. 524, C.A. at 529 as per Bowen, L.J.; South Hetton Coal Co. v. North Eastern News Association, (1894)1, Q.B. 133, C.A. at 144. In Hobbs v. Tinling, (1929) 2 K.B.I.C.A. at p.17, Lord Justice Sankey said something as follows:-
A plaintiff in an action for libel need not allege or prove that he has suffered damage. If he has been libelled without lawful justification or excuse, the law presumes that the publication of the libel has of itself a natural tendency to injure the plaintiff....
Having disposed of all the points made on behalf of the defendants, I must say that in my view, the plaintiffs are entitled to succeed and I hereby pronounce Judgment in their favour.
In the assessment of damages, it is clear that only general damages can be awarded, since there are no special damages claimed, and in doing this I have to say again that I realise my position as sitting as judge and jury. I realise that the assessment of damages depends on the whole circumstances of the case as viewed by the jury. It is said that the conduct of the defendant before action, after action and in court during the trial can be taken into consideration. In the award of damages, I would like to say that after taking all these things into consideration, I propose to be considerate. I take into account the fact that it was possible that these libels had been occasioned by a careless employee of the defendants, but it is a well known saying that if a man harbours an adder, he should not complain if he is bitten. There is no doubt in my mind that whoever the cartoonist was, he or she was one who had trained him or herself to dip his or her pen in gall just when he or she pleased, and was prepared to drag the reputations of innocent citizens into the mire and vilify their characters in the name of art and freedom of conduct and speech, no matter how highly placed they may be. The public must be protected from such ill-disposed or reckless folk who go about peddling horror, in the name of Liberty, even if it means at times that their unwary employers have to pay for it. I consider these libels to be particularly disgusting in nature, and I am surprised that no word of retraction or apology has been forthcoming from the defendants these two years and seven months, especially when it is admitted by all concerned that the West African Pilot is a very important national daily, and that it has a very wide circulation within the Federation of Nigeria, and possibly in other countries beyond our national boundaries.
It is permissible for this Court to take judicial notice of the fact that the West African Pilot is a national daily in this country that has readers outside this country, and that it exercises immense influence on its readers everywhere. It must not also be lost sight of that these libels were published some eight odd years after the events they purport to review (i.e. the 1951 general election to the Western Nigeria House of Assembly and the parts that the plaintiffs played in that historic episode), and they appear to be calculated deliberately to depict the said plaintiffs as men who were unworthy of the high positions they occupy in society. As Mr Milmo rightly observed, if there has been any truth in the allegations, the plaintiffs could be debarred as barristers. There is no reason given for this belated campaign of calumny and spite calculated to drag the good reputation of the plaintiffs into the mud and infamy. Even if the defence of fair comment has been tenable, the fact that these libels were not contemporaneous with the events but were a sudden crusade with no justifiable reasons to support it will, in my Judgment, constitute clear evidence of malice which will destroy the protection offered by that rolled-up plea. This Court is entitled to consider everything and all circumstances in its assessment of damages: See Hulton (E) & Co., v. Jones, (1910) A.C. 20: Lincoln v. Daniels, (1960) 3 All E.R. p205. The three plaintiffs claim a total of £90,000 i.e. £30,000 each, and that is an indication of the grave view they take as regards the imputations against their characters. Having given very careful consideration to all relevant factors in the case, having made all allowances in favour of the defendants as I possibly can, and having regard to the amount of injury which the character and reputation of the plaintiffs must have or are likely to have suffered as a result of these libels, I hereby award a total of £10,500 in their favour, i.e. £3,500 each, with costs which I shall now proceed to assess.
Ademola says that the plaintiffs have spent a total of £250 (i.e. summons fees, interlocutory motions, appeal, etc.), and asks for an inclusive cost of 1,000 guineas.
Akinjide suggests 250 guineas costs as being enough, and he cited the Rewani case as example.
Order: Having regard to the complexity in the conduct of the cases, and having regard to the fact that a Q.C. appears with juniors (which I think not undesirable), I hereby assess the plaintiffs' costs as 750 guineas.
Judgment for the plaintiffs.