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ZIK ENTERPRISES LIMITED AND ANOTHER
V.
THE HON. OBAFEMI AWOLOWO
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
11TH DAY OF MARCH, 1955
W.A.C.A. NO. 112/1954
2PLR/1953/96 (WACA)
OTHER CITATION(S)
2PLR/1953/96 (WACA)
(1955) XIV WACA PP. 696-704
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
DE COMARMOND, Ag. C.J., NIGERIA
COUSSEY, J.A.
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BETWEEN:
APPEAL IN CONSOLIDATED SUITS: No 270/52 AND No. 273/52
ZIK ENTERPRISES LIMITED AND A. Y. ATINUBU – Appellants
AND
THE HON. OBAFEMI AWOLOWO – Respondent
AND
ZIK ENTERPRISES LIMITED AND MBONU OJIKE – Appellants
AND
THE HON. OBAFEMI AWOLOWO – Respondent
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ORIGINATING COURT(s)
Appeal against a judgment of Jibowu, J., by the defendants in consolidated suits
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REPRESENTATION
J. Taylor for the Appellants
Kayode for the Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
TORT AND PERSONAL INJURY:- Libel – Whether article refers to plaintiff-Whether language supports innuendo or extrinsic evidence proves it.
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PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Appeals in Civil Cases – Test of intervention in damages
JUDGMENT AND ORDER:- Damages-Test of intervention on appeal
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CASE SUMMARY
The respondent as plaintiff brought two suits for libel against the respective appellants as defendants; they were consolidated, and the judgment was in his favour.
The first suit alleged two libels. The first one read:-
“Action Group threatens crisis to win over the Government. Political observers believe that the motive behind the delegation to the Government concerns the Iga Idunganran Civil Case, the Ilorin boundary and other issues affecting directly or indirectly the Action Group. It is believed also that the party may endeavour to use power politics to enable the Government to yield to certain demands which the Action Groupers feel must be conceded in order to avert a constitutional crisis. Apart from the walk-out threat reliable sources believe also that Action Group Ministers may resign en bloc in order to effect the demands of the party over the issues at stake. Meanwhile, it is understood that the Government will be represented in the proposed parley with Government by (names).”
The innuendo alleged was (briefly) that the plaintiff and the other Ministers held the conference with Government in order to interfere with the course of justice in the case mentioned in the article. On appeal two points were taken: that the words complained of did not refer to the plaintiff as an individual but to the Action Group as a whole; also that the innuendo was not proved.
Both those points were also taken in regard to the second libel alleged in the first suit. The article was headed “Government turns back Action Group with No to all demands”: It stated:-
“The Ikenne trial also re-echoed in the parley, but the Government felt that it was an issue for the Legal Department and the Court, and not the concern of the Governor. On this matter the Governor refused to make a statement.”
The innuendo alleged was (briefly) that the plaintiff (to whom there were references in the article) and the other Ministers had asked the Governor to interfere in the course of justice in the conviction of someone then on appeal. The plaintiff called evidence to prove the innuendoes he alleged in regard to the two articles, but none spoke of knowledge of any special facts which caused him to form his opinion. It seemed from the judgment that the Judge was affected by the third article, which formed the subject of the second suit; but the third article did not contain any reference to the two earlier articles (those in the first suit).
The third article, which was complained of in the second suit, referred to the plaintiff, the leader of the Action Group and Minister of Local Government, and the innuendoes pleaded were that he and the other Ministers had planned to get Government to interfere in the two cases mentioned in the two earlier articles, and were unfit to hold their offices. (The third article is rather long; the text is given at p. 702.) Evidence was called to establish the innuendoes.
The two points raised on appeal in regard to the second suit were the same as those raised in regard to the first suit. A third point about both suits related to the damages awarded (£2,000 in the first suit and £500 in the second suit).
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal in respect of the first suit but dismissing in respect of the second suit) that:
(1) As regards the first article, in the first suit; Upon a reasonable construction it could not be regarded as referring to the plaintiff; it aimed at the policy of the Action Group as a party, not at any particular individual: therefore the claim in regard to the first article failed.
(2) As regards the second article, in the first suit:-
(a) It was capable of referring to the plaintiff and it WM reasonable for the witnesses to think that it did: but
(b) The plaintiff had the onus of proving that the article conveyed to the mind of a reasonable person the imputation he pleaded, but the inference suggested by the innuendo was not such as a reasonable person would draw: therefore the claim in regard to the second article failed.
(3) As regards the third article, the one complained of in the second suit;
(a) There were references to the plaintiff and the words complained of in conjunction with the relevant circumstances made it reasonable for the witnesses to think that the article referred to the plaintiff: and
(b) There were passages in the article which supported the innuendoes alleged, and, further, the two earlier articles provided evidence of circumstances entitling reasonable men who knew them to understand the third article in the defamatory sense alleged by the plaintiff: therefore the judgment in regard to the second suit was right.
(4) Held also: It was not shown that the trial Judge had acted upon any wrong principle in assessing damages, and the damages awarded in respect of the second suit would not be interfered with (any more than those in respect of the first suit if the judgment in that respect had been upheld).
(5) Obiter: As regards the first article in the first suit; the imputation alleged in the innuendo was not one which a reasonable man would draw.
Cases cited:-
(1) Knupffer v. London Express Newspaper Ltd. (1944), 1 All E.R. 497.
(2) Capital and Counties Bank v. Henty (1881-2), 7 A.C. 776.
(3) John Leng & Co. Ltd. v. Langlands, 114, L.T. 667.
(4) Hough v, London Express Newspapers Ltd. (1940), 2 K.B. 507.
(5) Bedwas Navigation Colliery Co. (1921) v. South Wales Executive Board, 153 L.T.R. 386.
(6) Flint v. Lovell (1935), 1 K.B. 360.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
This was an appeal against a judgment of Jibowu, J., in two consolidated actions claiming damages for defamation. In the first case, suit No. 270 of 1952, the learned trial Judge awarded the plaintiff the sum of £2,000 damages against both defendants, and in the second case, suit No. 273 of 1952, he awarded £500 damages against both defendants. The first defendant in both cases was the Zik Enterprises Ltd., proprietors, printer and publishers of a. daily newspaper known as the West African Pilot, the second defendant in the first suit was alleged to be the editor of the newspaper, and in the second suit he was the writer of the article.
The first suit is a claim in respect of two causes of action. the first being in respect of a portion of a front-page article published in the first defendant’s paper on the 10th June, 1952, headed:-
“ACTION GROUP THREATENS CRISIS TO WIN OVER THE GOVERNMENT
SECRET BEHIND PLAN DISCLOSED “,
which reads as follows: “Political observers believe that the motive behind the delegation to the Government concerns the lga ldunganran Civil Case, the llorin boundary and other issues affecting directly or indirectly, the Action Group. It is believed also that the party may endeavour to use power politics to enable the Government to yield to certain demands which the Action Groupers feel must be conceded in order to avert a constitutional crisis. Apart from the walk-out threat reliable sources believe also that Action Group Ministers may resign en bloc in order to effect the demands of the party over the issues at stake. Meanwhile, it is understood that the Government will be represented in the proposed parley with Government by Mr. Erick Himsworth, Financial Secretary and Mr. Harold Cooper, Public Relations Officer, and others including the Governor himself”; and the second cause of action is in respect of a portion of another front-page article published in the same newspaper on the 11th June, 1952, headed:-
“GOVERNMENT TURNS BACK ACTION GROUP WITH NO TO ALL DEMANDS”,
which reads:” The Ikenne trial also re-echoed in the parley, but the Government felt that it was an issue for the Legal Department and the Court, and not the concern of the Governor. On this matter the Governor refused to make a statement.”
In neither instance was it suggested that the words complained of are defamatory in their primary and natural meaning. The action is based entirely upon the innuendoes pleaded in paragraphs 24 and 25 of the statement of claim. As regards the article of 10th June, the innuendo alleged reads as follows: “the plaintiff avers that the defendants meant and were understood by their readers to mean that the plaintiff and the other Ministers described in paragraph 16 above (a) held the aforesaid Conference with the Governor and other Government Officers in order to get Government to interfere with the course of justice in the aforesaid suit No. 276 of 1949 pending before the West African court of Appeal and (b) threatened to create a constitutional crisis in order to force the hands of the Governor”; and as regards the article of 11th June the innuendo alleged reads: “the plaintiff avers that the defendants meant and were understood by their readers to mean that the plaintiff and the other Ministers described in paragraph 16 above had asked the Governor and the other officials present at the conference to interfere in the course of justice namely in the aforesaid conviction of Sadiku Salami pending before the West African Court of Appeal,”
In these circumstances it was necessary to prove tha.t the matter published in each of the articles conveyed to the mind of a reasonable person cognisant of special facts or circumstances that which it would not convey to the mind of a reasonable person unacquainted therewith.
Mr. J. Taylor, who appeared for the appellants in both cases, submitted, inter alia, that the words complained of were written about a class of persons, that is to say the Action Group as a whole, and that there was nothing to show that they referred to the plaintiff as an individual. Subsequently he also submitted that the innuendoes were not proved.
Since the claims are in respect of three causes of action, relating to three publications, I think it is important that each of the articles and the evidence led in respect of them should be examined separately, and this I propose to do.
There are two questions involved in the attempt to identify the plaintiff as the person said to be defamed. The first question is a question of law-can the article, having regard to its language, be regarded as capable of referring to the plaintiff? The second question is a question of fact, namely, does the article in fact lead reasonable people who know the plaintiff, to the conclusion that it does refer to him? Unless the first question can be answered in favour of the plaintiff, the second question does not arise; Viscount Simon, L.C., in Knupffer v. London Express Newspaper Ltd. (1).
Taking the article in the West African Pilot of 10th June as a whole, I am unable to agree that, upon a reasonable construction, it can be regarded as referring to the plaintiff. It seems to me that the whole tenor of the article shows that it is the policy of the Action Group as a party which is aimed at, not any particular individual.
It is true that witnesses for the. plaintiff gave evidence that the fact that Action Group Ministers were to have a conference with the Governor on 10th June had received wide publicity in the press, and that several of the witnesses testified that they had read the issue of the Daily Service newspaper published on the 9th June, exhibit “N”, which discussed the proposed conference and gave the names of the thirteen Ministers, including the plaintiff’s, who were to attend it. The learned trial Judge treated this evidence led to support the identification in fact as governing the matter, and I am of the opinion that he erred in so doing.
The article in the issue of the 11th June contains several references to the leader of the Action Group; taken as a whole, I am satisfied that it is capable of referring to the plaintiff, and that it was reasonable for the witnesses to think that it did. The next question which has to be considered is whether the innuendoes were proved.
Although, having regard to the conclusion I have reached on the first point in respect of the article of 10th June, the question of the innuendoes does not arise in relation to it, I propose to consider this aspect in respect of both the articles complained of in the first action.
In considering this aspect of the case I am of the opinion that the position is as stated by Lord Blackburn in his judgment in the case of Capital and Countries Bank v. Henty (2) when he said:
“Whenever a verdict has passed against a defendant in a case of libel, and judgment has been given in the Court below, those who bring their writ of error on the ground that there is no libel, assert that both the jury and the Court below have gone wrong: but they are not called upon to say that the words were incapable of conveying the libellous imputation; it is enough if they can make out, to the satisfaction of the Court in error, that the onus of shewing that they do convey such an imputation is not satisfied.”
As Viscount Haldane said in John Leng &. Co. Ltd. v. Langlands (3):
“The question which we have to deal with we have to decide as judges of law. It is whether it is possible, if the language used is read in its ordinary sense, to say that it is such as can reasonably and naturally support the innuendo. It is not enough for the pursuer to say: ‘The language is ambiguous; it is capable of one of two meanings-either is equally probable, and it is for the jury to choose which it will put on it ‘, The pursuer must make out his case, and the pursuer must therefore, if he wishes to succeed, when he puts forward his innuendo, put it forward either on the footing that the language taken by itself supports the innuendo, or that there is extrinsic evidence, extrinsic to the libel itself, which shows that that was the sense in which the words were intended to be construed.”
The special circumstances alleged are set out in paragraphs 6 to 15 of the statement of claim, which read as follows:-
“6. In 1949 there was a civil case between the members of the House of Docemo and His Highness Oba Adeniji II (suit No. 276/49) in which the former claimed against the latter party a declaration of title and recovery of possession of a building and land known as ‘Igo Idunganran’.
“7. The said action was determined on the 18th of January, 1951, when judgment was entered in favour of Oba Adeniji Adele II.
“8. The members of the House of Docemo have lodged an appeal to the West African Court of Appeal and the said appeal is pending,
“9. The defendants have invariably referred to the appeal in the West African Pilot as ‘the Iga ldunganran case’.
“10. The said appeal is still pending before the West African Court of Appeal.
“11. The aforesaid Oba Adeniji Adele is a prominent member and well-known supporter of the Action Group.
“12. On the 28th of April, 1952, one Sadiku Salami a first cousin to plaintiff’s wife was convicted of murder and sentenced to death in the Supreme Court of the Ibadan Judicial Division.
“13. The alleged murder took place at Ikenne and the case has been referred to in the West African Pilot as ‘the Ikenne Trial ‘.
“14. The said Sadiku Salami has lodged an appeal to the West African Court of Appeal and the said appeal is still pending,
“15. The said Sadiku Salami is a member and. supporter of the Action Group in plaintiff’s constituency, i.e. Remo Division of ljebu Province.”
Of the four witnesses called by the plaintiff to prove the innuendoes, two were members, and one a strong supporter, of the Action Group. They all gave evidence to the effect that the article of 10th June gave them the impression that the leaders of the Action Group were bringing pressure to bear on the Governor to interfere with the course of justice in the lga ldunganran case, not one of them gave evidence that he had knowledge of any special facts or circumstances which caused him to form his opinion. The plaintiff gave evidence that the “Oba Adele is a very strong supporter of the Action Group”, that before the civil case there had been a dispute as to who should be the Oba of Lagos in which the Government had intervened, and that the Iga is the official residence of the Oba of Lagos, but that does not seem to me to carry the matter any further.
The same four witnesses gave evidence regarding the article of 11th June. Mr. lkoli said, “The publication conveys to me the impression that the leader of the Action Group (plaintiff) had put pressure on the Governor to intervene in the Ikenne trial which I knew to be a murder case”, Messrs. Somolu and Randle gave evidence to the effect that they considered it improper for the delegation to see the Governor over the Ikenne case which was then on appeal, and Mr. Kotoye said that he gained the impression that the lkenne murder trial had been discussed at the meeting.
It seems clear from the evidence that the Ikenne trial was a sequel to an incident which occurred during disturbances at lkenne in Ijebu Remo Division on the 14th January, 1952, arising out of a dispute between the Alakenne’s party and the Apena’s supporters over a chieftaincy matter.
Mr. Randle testified that he knew of the dispute, and he went on to say, “May be the murder arose out of the dispute”. He also said that he’ had read the issue of the West African Pilot of the 9th May, 1952, exhibit “J1”, which refers to the plaintiff, and to the remarks of Abbott, J., who presided at the murder trial, regarding the plaintiff’s alleged failure to hand over the accused man to the police.
The only other witness called by the plaintiff who testified to knowledge of any special circumstances was Mr. Kotoye, who said that he had read the issue of the West African Pilot of the 8th May, 1952, exhibit “J”. which contains an article on the Ikenne trial referring to the fact that the accused man, Sadiku Salami, “was arrested in the house of an Action Group member”, but the article does not contain any direct reference to the plaintiff, and the witness did not aver that he had any other special knowledge when he read the article of 11th June.
On the evidence of these four witnesses can it fairly be said that the plaintiff discharged the onus of proving that the article of 11th June conveyed to the mind of a reasonable person the imputation that “the plaintiff and the other Ministers … asked the Governor and the other officials present at the Conference to interfere in the course of justice namely in the … conviction of Sadiku Salami pending before the West African Court of Appeal”? After most anxious consideration I have come to the conclusion that the inference suggested by’ the innuendo is not such as a reasonable person would draw, and I am, therefore, of the opinion that the answer to the question should be in the negative.
It seems to me that there might have been a number of matters connected with the Ikenne trial which could quite legitimately have been mentioned at the Conference. As I have already pointed out, only one of the four witnesses, Mr. Ikoli, a very good friend of the plaintiff and a supporter of his party, gave evidence that the article in question gave him the impression that the plaintiff had put pressure on the Governor to intervene in the Ikenne trial, and he did not testify to having knowledge of any extrinsic facts which might have led him to the opinion he says he formed. Because some persons may choose, not by reason of the language itself, but by reason of some fact to which the article refers, to draw an unfavourable inference, it does not follow that a reasonable person would do so.
The learned trial Judge held that the article of 10th June “bears the innuendo alleged”, and when dealing with the article of 11th June he said, inter alia, “The implication appears clear that the Ministers including the plaintiff raised the question about Sadiku Salami’s case with a view to getting the Governor to intervene in order to save Sadiku Salami and the plaintiff”. The latter remarks seem to me, on any view of the evidence, to be an over-statement of the position, and the implication he draws certainly goes beyond the innuendoes pleaded. I cannot help feeling that he might well have taken a different view had consideration of the three articles been more clearly separated in his judgment.
The trial Judge seems to have been influenced in reaching his conclusions on the first two articles, by the article of 13th June written by the second defendant in suit No. 273 of 1952, from which he drew the inference that the author had drawn the same conclusions from the articles of 10th and 11th June as had the witnesses for the plaintiff. In this connection I would observe that the article of 13th June does not contain any reference to the two earlier articles, and so far as I am aware there is no direct evidence to support the conclusion. If the article of 13th June had been shown to have represented the author’s conclusions drawn from the articles of 10th and 11th June, I think the passage in Lord Bramwell’s judgment (7 A.C. at page 792) in the case of Capital and Counties Bank v. Henly (2), which reads:” I think that the defamer is he who, of many inferences, chooses a defamatory one “, is apposite.
In paragraph 5 of the statement of claim in suit No. 270 of 1952, the plaintiff alleged that the second defendant was the editor of the West African Pilot. This allegation was denied in paragraph 2 of the defence filed by the second defendant, and counsel for the appellants submitted that the plaintiff had failed to prove that he was the editor. The only evidence on the point was given by Mr. Giwa, editor of the Nigerian Statesman. Taking his evidence as a whole, including his answer to a question put by the Court, I do not think that it can be put any higher than that the witness was under the impression that the second defendant was the editor in June, 1952. In these circumstances I am of the opinion that the plaintiff cannot be said to have discharged the onus which was upon him. It follows that I would have given judgment against the plaintiff in favour of this defendant in any event.
The article complained of in suit No. 273 of 1952, was published in the issue of the first defendant’s newspaper of 13th June, 1952. It is set out in paragraph 24 of the statement of claim, and reads as follows:-
“ACTION GROUP BY MBONU OJIKE
“The shallow separatist and selfish policies of the Action Group have now landed the party in a state of confusion, disgrace and disaster. This is a political doldrum the beginning of an end to the political chauvinism and machiavellianism of the Action Group leadership. What concerns the nation is not the fate of a party founded in deceit and envy but the retardation element such an ignoble party has precipitated on the road to Nigerian freedom.
“STUMBLING BLOCK. A year ago, I said that the Minister of Local Government, Western Region, by concocting secretly the Action Group dedicated to the cause of a section of Nigeria, constitutes a stumbling block to Nigeria nationalism.
“Today’s events have abundantly proved me absolutely correct.
“That a party worthy of Nigerians’ support should now attempt to intimidate the Government of Nigeria in which it is represented under the Constitution that Awolowo goaded the now defunct NEC to accept before the texts thereof were published, leaves no one in doubt as to the tragic end of the Action Group and its carpet crossers.
“BEST BRAINS. Does the party wish Government to interfere with the course of justice in relation to the atrocious Ikenne dispute?
“Rightly enough the Council of Ministers selected two of their best brains to go to UK in the interest, not of a party or region, but of Nigeria as a whole. That none of the Groupers was found competent enough to go along is the fault of the Local Government Minister who built a phony party with non-university men.
“Or does he wish Nigeria to send his party men without academic or experiential qualification to UK to negotiate technical problems with highly qualified Europeans?
“Folly is confounded by the Group chauvinists and machiavellinists.
And Nigerian freedom is retarded for it all.
“If Groupers want Ilorin Province and Kabba is this unholy goal to be won by threats of a walk-out?
“Will the Iga controversy case already in Court be cancelled by the Governor in order to placate Action Groupers?
“Or are we to be exterminated because Groupers want Lagos in the West or that the old man Lyttleton did not visit Iga? How honest men could participate in a legislature that passed certain bills and tum around to kick against the constitutional operation of Lead-Zinc and Pioneer Industries laws simply because they were introduced by NCNC Ministers, beats the nationalists’ imagination and shocks world conscience.
“Western Local Government Minister, behave like a states-man. Stop childish manoeuvres for an ant has never defeated an elephant.
“You cannot stop Nigerian unity and peoples’ freedom, march on to freedom, I say, to NCNC Floreat one Nigeria Thanks to West African Pilot for unmasking Groupers woes, Shame to Daily Times for calling Groupers’ Iniquitous delegation to Government House a ‘Top Secret’. EBUTE METTA”;
and paragraph 25 of the statement of claim contains an averment that the article was written and published as a sequel to the articles published on 10th and 11th June.
The first question which has to be determined is: Are the words complained of in conjunction with the relevant circumstances reasonably capable of being understood to apply to the plaintiff? In the case now under consideration that question ought, in my view, to be answered in the affirmative. The article contains a reference to “Groupers iniquitous delegation to Government House”, there are several references to the plaintiff, and it must, I think, be regarded in the light of the article of 11th June.
I am also of the opinion that the learned trial Judge was justified in his finding of fact that it was reasonable for the witnesses to think that the article did refer to the plaintiff.
The action is based entirely upon the innuendoes pleaded in paragraph 26 of the statement of claim to this effect: The article meant and was understood to mean (a) that the plaintiff and other Ministers had planned to get the Government to interfere with the course of justice in relation to the charge of murder against Sadiku Salami, (b), that the plaintiff and other Ministers had planned to get Government to interfere with the course of justice in relation to the lga ldunganran civil case, and (c), that the plaintiff and other Ministers are unfit to hold their respective offices.
Applying the test laid down by Viscount Haldane in the case of John Leng &. Co. Ltd. v. Langlands (3), to which I have already referred, I am of the opinion that the language employed in the passages of the article which refer to the “atrocious Ikenne dispute”, the “Iga controversy case” and the “Iniquitous delegation to Government House”, taken by itself, supports the innuendoes alleged, and further, that the articles of 10th and 11th June provide evidence of circumstances sufficient to entitle any reasonable man with knowledge of them to interpret the words in the article now under consideration, in the defamatory sense alleged; Hough v. London Express Newspaper Ltd. (4).
In reaching this conclusion I have paid no regard to the matter contained in the issue of the first defendant’s newspaper, dated 14th June, exhibit “B2”, as it could not, I think, properly be treated as evidence tending to give a libellous meaning to the article of 13th June, if the latter publication itself was not otherwise proved to be defamatory and I am fortified in this view by the remarks of Lord Selborne, L.C., in Capital and Counties Bank v. Henty (7 A.C. at page 748). Counsel for the appellant also submitted that the learned trial Judge erred in taking into consideration the possibility that the newspaper had a circulation outside Lagos, when considering the question of damages, since it was denied in the statement of defence and there was no evidence to support the proposition. The passage in the judgment to which objection would appear to have been taken reads:
“I have to consider the rank and position of the plaintiff in the community, the fact that the reflections on him were in a public newspaper which might have travelled beyond Nigeria to other lands where the plaintiff is known personally or by reputation and the damage the publications might have done to his good name.”
As Lord Atkin said in his judgment in Bedwas Navigation Colliery Co. (1921) v. South Wales Executive Board (5), when discussing the same problem:
“It is precisely “because the ‘real’ damage cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach: It is impossible to weigh at all closely the compensation which will recompense a man or woman for the insult offered or the pain of a false accusation”.
The principles upon which a Court of appeal acts in considering the finding of a trial Judge as to the amount of damages has often been stated, and was re-stated by Greer, L.J . in his judgment in Flint v. Lovell (6) where he said,
“In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.”
In view of the conclusions I have reached in suit No. 270 of 1952, the question of damages does not arise in respect of that action, but if I had to determine the matter I should feel bound to hold that the learned trial Judge did not act upon any wrong principle when assessing damages in that suit, and the same applies to his assessment of damages in suit No. 273 of 1952.
Another ground of complaint was that the trial Judge erred in treating the plaintiff’s claim for an injunction as abandoned. It was submitted that it ought to have been dismissed with costs on that issue to the defendants. I can find nothing in the record to indicate that the matter was raised in the Court below, but costs are rarely taxed here, it being the usual practice to award a lump sum when all relevant matters are taken into consideration. In these circumstances I do not think there is any real substance in the complaint.
Finally, learned Counsel for the appellants took objection to the passage in the judgment which reads:
“I therefore hold that each Minister had been defamed and that each can bring an action in respect of the publications”.
It is clear that the remarks go beyond the necessities of the position, and I think, with respect to the learned trial Judge, that it would have been better if they had not been made. I am quite sure, however, that if any further actions are taken in respect of this matter that they will be decided on their merits, and that no regard will be had to the passage in question.
For the reasons given I would allow the appeal of the appellants in suit No. 270 of 1952, set aside the judgment of the Court below and enter judgment for the defendants with costs in the Court below fixed at 50 guineas; and I would dismiss the appeal in suit No. 273 of 1952.
I would award the appellants in suit No. 270 of 1952, £35 10s. 0d. costs on this appeal, and the respondent in suit No. 273 of 1952, the sum of £19 10s. 0d.
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DE COMARMOND, AG. C. J.
I concur.
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COUSSEY, J. A.
I concur.
Appeal allowed in respect of the first suit but dismissed in respect of the second suit.
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