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THE AFRICAN PRESS LIMITED
V.
DR. OKECHUKWU IKEJIANI
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
28TH DAY OF NOVEMBER, 1953
2PLR/1953/19 (WACA)
OTHER CITATION(S)
2PLR/1953/19 (WACA)
(1953) XIV WACA 386 – 389
LEX (1953) – XIV WACA 386-389
BEFORE THEIR LORDSHIPS:
VERITY, C.J., NIGERIA
COUSSEY, J.A.
DE COMARMOND, S.P.J., NIGERIA
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BETWEEN:
THE AFRICAN PRESS LIMITED – Appellants
AND
DR. OKECHUKWU IKEJIANI – Respondent
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REPRESENTATION
Williams — for Appellant
J. I. C. Taylor, with D. O. Ibekwe — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
TORT AND PERSONAL INJURY LAW — DEFAMATION:- Libel — Untrue allegation — Defence of fair comment — Qualified privilege — Malice
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PRACTICE AND PROCEDURE ISSUE(s)
APPEAL:- The grounds upon which a Court of Appeal will vary the damages assessed by a Judge sitting without a jury — Relevant considerations
APPEAL:- Appeals in Civil Cases — Test of intervention on damages awarded-Uniformity of costs desirable
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CASE SUMMARY
Appeal by defendants: No. 93/1953
The respondent as plaintiff below sued in libel in respect of an article headed “The Fraudulent Saints of Africa” which attacked “noisy and dishonest followers” of someone and alleged of the respondent that he “claimed to have obtained a doctorate degree in medicine”, that “it was later proved that the degree was a fake”, and that” consequently the quack expert was kicked out of the University”; and he was referred to as one of those “dishonest followers”, as a “fraudulent nationalist”, and as one who has “waxed rich at the expense of the honest but credulous public”.
In fact the plaintiff had a degree as a doctor of medicine, so the allegation that it was a “fake” was untrue. He had however claimed to be a doctor of science and received an academic appointment at a higher salary than he would have had, which he was forced to give up on its being discovered that he was not a doctor of science.
The trial Judge held that the article was a gross and very damaging libel and awarded the plaintiff £750 as damages and £200 as costs plus his out-of-pocket expenses.
The defendants appealed and argued –
(a) that the comment was warranted by the fact that the plaintiff had falsely claimed to be a doctor of science,
(b) that there was a bona fide duty to tell the public that he was not discharged from his appointment on political grounds and to encourage honesty,
(c) that the damages awarded were excessive, and
(d) that the costs allowed were inordinate.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal) that:
(1) The defamatory comment hung upon the alleged fact that the respondent-plaintiff falsely claimed to be a doctor of medicine; that allegation was untrue; therefore the comment hanging upon it could not be fair.
(2) Whether or not the defence of privilege could be raised, the recklessness with which that untrue allegation was made and the violent language and general tenor of the article, which struck at the respondent-plaintiff’s professional practice in medicine, justified the trial Judge in holding that the publication was malicious–a finding which destroyed that defence.
(3) The damages would not be disturbed, for there was no mistake in principle or the basis of assessment, nor was the amount so excessive as to disclose an entirely erroneous estimate of the injury suffered.
(4) The costs allowed were out of all proportion to the damages awarded and to the length of the trial, and the costs would be reduced having regard to the costs allowed in a similar case.
Cases cited:-
(1) Mangena v. Wright, 1939, 2 K.B. 988.
(2) Hobbs v. Tinling, 1929, 2 K.B. 17.
(3) Scott v. Sampson, 1882, 8 Q.B.D., at p. 503.
(4) Nkoku v. Zik’s Press Ltd., W.A.C.A. Selected Judgments, January-May. 1951, p. 15.
(5) Obaseki v. Osagie (unreported; 11 W.A.C.A. case heard in May, 1953).
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MAIN JUDGMENT
The following Judgment was delivered:
VERITY, C. J., NIGERIA
In this case the plaintiff, who is a medical practitioner, sought to recover as against the defendants damages for libel. The defendant company are the proprietors printers and publishers of a daily newspaper and the second defendant a contributor thereto. He took no part in the proceedings and there being no proof of service of the writ upon him the action proceeded as against the defendant’ company only.
The alleged libel was contained in an article published by the defendant company in their newspaper and set out in extenso in the statement of claim.
The learned Judge in a comprehensive judgment found for the plaintiff and awarded £150 damages and 200 guineas costs. Against this judgment the defendant company have appealed.
The article complained of is headed “The Fraudulent Saints of Africa” and its general trend is to criticise, indeed I might well say attack certain persons who are described therein as “noisy and dishonest followers” of a certain Dr. Azikiwe. Certain persons are mentioned by name, including the respondent. Of him it is alleged that he “claimed to have obtained a doctorate degree in medicine”, that “it was later proved that the degree was a fake” and that “consequently the quack expert was kicked out of the University”. The respondent is referred to as one of the” dishonest followers” of Dr. Azikiwe, as a “fraudulent nationalist”, as one who has ” waxed rich at the expense of the honest but credulous public” and the article winds up with reference to Nigeria as an Augean stable.
The evidence showed clearly that the respondent’s degree as a doctor of medicine was not a “fake” as he is in fact a doctor of medicine of Toronto University. It appeared however that he bad in fact falsely claimed to be a doctor of science, that by reason of that claim he received an appointment at the University College at Ibadan at a higher salary than he would otherwise have received and that upon the falsity of his claim being discovered he was called upon to resign and did so. Had he not resigned he would have been dismissed.
It is submitted on behalf of the appellants that this conduct warranted the comment that the respondent is dishonest, fraudulent, and that he waxed rich at the public expense and further that the reference to a “quack expert” is warranted by the fact that he laid claim to a scientific qualification he did not possess. There might have been some substance in this contention if the article had based its comment upon the claim of the respondent to be a doctor of science which he was not instead of upon his claim to be a doctor of medicine which he is. Mr. Williams submitted, however, that this error is no more material than if a man was accused of being a housebreaker because he had broken into No. 10 Broad Street, when in fact to bad broken into No. 11. I think the analogy is fallacious. The latter would still have been a housebreaker whichever premises he feloniously entered. But whereas an allegation that the respondent falsely claimed to be a doctor of science would have affected only his academic career, already terminated, to allege that he falsely claimed to be a doctor of medicine strikes at the respondent’s professional practice in which he is now engaged. I think therefore that the learned Judge rightly held that the defence of fair comment failed for the alleged fact upon which the comment hangs was untrue and as was said by Phillimore, J., in Mangena v. Wright (1), “if the facts do not warrant defamatory comment the comment is not fair and if the facts as alleged warrant defamatory comment they are defamatory and must be proved to be true”. In the present case the alleged facts upon which the comment was based have been proved to be untrue and the comment thereon cannot therefore be fair.
The second line of the appellants’ defence is that of qualified privilege it being pleaded that the words were published by the appellants in the bona fide discharge of their duty without malice, by correcting a false impression that the respondent had been made to relinquish his post at the University College because of his political beliefs and to encourage honesty amongst Nigerian people.
It is difficult to see what duty lay upon the appellants to correct one false impression by creating another, for although the respondent was not called upon to resign because of his political beliefs he was equally not called upon to do so because he had falsely claimed to be a doctor of medicine, nor is the encouragement of honesty apparent in calling a dishonest when he has in fact a degree to which he lays claim. Nevertheless it is possible that if the appellants honestly believed that a medical practitioner laid claim to qualifications he did not possess it might be their duty to expose this deception in protection, as was said by the learned Judge, of the health or pockets of members of the public”. But the appellants can only seek cover in this defence if they acted upon this honest belief and without malice or indirect motive. The learned Judge although not disposed to rule that the publication was privileged gave full consideration to the question of malice, which would in any event destroy the privilege. He held that the violence of the language, the reference to the respondent as a “quack” with or without the addition of the word expert, the recklessness with which the false allegation was made and the general tenor of the article are all capable of showing that the publication had no honesty of purpose in the discharge of a duty to the public and was malicious. He found not only that those things are evidence of malice but also found as a fact upon this evidence that the publication was malicious. I think there was evidence upon which he could so find and that the defence of privilege failed.
There remain the questions of damages and costs both of which are the subject of appeal.
It is submitted on behalf of the appellant that the damages a.re excessive on two main grounds. Firstly, that the character of the respondent is such that the particular charge brought against him by the libel, even though false, cannot affect substantially his reputation, and secondly, that the learned Judge misinterpreted and so attached too much weight to the words “quack expert”.
In regard to the false claim made by the respondent to a doctorate in science the learned Judge observed that this showed that the respondent “is the sort of man who is prepared to make fal8e claims to academic quali6catiom and to reap advantages thereby”, This is indeed a gross reflection upon the respondent though the evidence is perhaps hardly that of a “bad general reputation”, to quote the words of Scrutton, L.J., in Hobbs v. Tinling (2). In Scott v. Sampson (3), Cave, J., said that when a plaintiff “complains of an injury to his reputation and seeks to recover damages for that injury… it seems most material that the jury who have to award those damages should know, if the fact is so, that he is a man of no reputation”, while later his Lordship observed that “as to evidence of facts and circumstances tending to show the disposition of the plaintiff both principle and authority seem equally against its admission. At the most it tends to prove not that the plaintiff has not but that he ought not to have a good reputation and to admit evidence of this kind is in effect … to throw upon the plaintiff the difficulty of showing an uniform propriety of conduct during his whole life”, I am in doubt therefore whether the learned Judge was entirely warranted in treating evidence of the respondent’s false claim to a doctorate in science as general evidence of bad reputation such as could be given by the appellants in mitigation of damages, but it appears that he did so and moreover in his Lordship’s own words gave full weight to it. In doing so the learned Judge may have erred but it is hardly an error of which the appellants can complain.
As to the second submission Mr. Williams contended that the words “quack expert” read together, as they should be, mean no more than that the respondent did not possess a particular academic distinction to – which he laid claim and did not imply that he was practising medicine without the necessary professional qualifications. Whether or not that was all the appellants by their publication intended to imply is immaterial. The real question surely is in this regard as well as in determining whether or not the words are libellous, in what sense would reasonable men to whom the publication was made understand it? However desirous I might be to give the writer of the article and those who published it credit for a moderation nowhere else discernible in the libel I find myself entirely unable to reach the conclusion that any reasonable man reading it would understand it to imply from the use of the words “quack expert” that the respondent was a fully qualified medical practitioner whose sole fault was that he laid claim to a special degree he did not happen to possess. Rather am I impelled to the conclusion that a jury of reasonable men would find that the use of the word “quack” in relation to a medical practitioner either with or without the addition of the word “expert” and read in conjunction with the words “dishonest” and “fraudulent” and “waxing rich at the expense of the honest but credulous public” was, as the learned Judge held, “a gross and very damaging libel”.
Whether the members of this Court would, had any one of us been sitting at first instance, have assessed the damages at the figure reached by the trial Judge, or more or less, is beside the point. The grounds upon which a Court of Appeal will vary the damages assessed by a Judge sitting without a jury have recently been discussed in Nkoku v. Zik’s Press Ltd. (4) and I do not propose to discuss them here. It will suffice to say that I am unable to hold that in the present case the learned Judge applied any wrong principle or proceeded upon a wrong basis in assessing the damages or that the sum found by him is so excessive as to disclose an entirely erroneous estimate of the injury suffered by the respondent.
In regard to costs it is submitted that the sum of 200 guineas in addition to £30 for out-of-pockets, is out of all proportion either to the sum recovered or to the length of the trial. There is no scale of fees· to counsel or solicitors in the Supreme Court of Nigeria and the amount thereof lies therefore in the discretion of the Judge or of the taxing master as the case may be. It is desirable, however, that there should be as far as possible some measure of uniformity in their assessment. In the very recent case of Obaseki v. Osagie (as yet unreported) in which an appeal came before this Court in May last, in an action also for libel, damages to the extent of £2,500 were finally awarded, the hearing in the Court below involved almost twice as many attendances as in the present case and this Court approved an award of costs amounting to 200 guineas including out-of pockets. An award of £240 in all in the present case appears to me to represent a departure from the standard of uniformity which I think desirable, although in fairness to the learned Judge who made the order in this case I have no reason to believe that he was aware of the order in the case to which I refer. I would, however, in an effort to secure some degree of uniformity reduce the costs in this case to 100 guineas in addition to £30 out-of-pockets.
I would dismiss this appeal with costs fixed at £26 16s. 0d. but vary the order as to costs in the manner indicated.
COUSSEY, J. A.
I concur.
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DE COMARMOND, S.P.J.
I concur.
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Appeal dismissed but order on costs below varied.
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