01/12/2020
PUNCH (NIG) LTD v. OVBEREDJO
(2018) LPELR-44540(CA)
ISSUE
LIBEL : What constitutes libel
PRINCIPLE
"The simple question for the resolution of this issue really is - "What is libel? Libel, as rightly submitted by the respondent's counsel means any publication by the defendant which may be by printing, writing, pictures or any sign whatsoever of a defamatory character or imputatory of defamatory character of the plaintiff; such publication is actionable without any proof of damages. See Edem v. Orpheo Nig. Ltd (2003) 110 LRCN 1673 at 1687. The question whether mere publication of photograph could constitute libel is answered in the positive or affirmative. The essence of the law of defamation by libel or slander is that the publication tends to bring the plaintiff into hatred, contempt or ridicule; see Katto v. CBN (2001) FWLR (Pt. 53) 188 at 212 paragraphs E - D. In the instant case, the appellant had admitted the publication of the Exhibits "A" and "B" with the photograph of the respondent in-set the story on stealing and embezzlement by one Onofe; what is material is the offences imputed and not where the person works. I have seen the said Exhibit "A" and in particular Exhibit "B" has the name Anofe clearly written under or below the respondent's photograph or picture; this, therefore, gives out or puts up the respondent in the photographs as the said Onofe in respect of whom the story on stealing and embezzlement was centred. This permanent form of publication in print was actionable per se, without proof of damages more so that the imputation of crime had been raised. The appellant in evidence of DW1 and DW2 and also by its learned counsel's brief of argument as argued before this Court profusely admits of the publication and as relating to the respondent: where the appellant has admitted the publication, there was no obligation on the plaintiff to prove same over. See Iwueke v. Imo Broadcasting Corporation (2005) ALL NLR 272 - 273. The respondent cannot be expected to prove that he was the Onofe mentioned and shown in the publication as the person appearing in the photographs (picture) on Exhibit "A" and "B". The fact that the respondent was in fact not known as Onofe by real name is immaterial, as the tort of defamation by publication vide the picture or photograph was complete once the imputation by inference can be drawn as referable to the respondent, the real person whose photograph appeared on the offensive publication; every reasonable person will so infer and consider Onofe mentioned as the person whose photograph was embossed on the Publication. The weak and idle repetitive denials of the appellant as relating to the photograph not being that of Onofe and that respondent had not shown that he was the said Onofe or a politician and having anything to do with the local council of Delta State whose Vice Chairman was indicted by the publication is, to me a mere puerile and baseless hold on a straw by a drowning defendant/appellant who had no defence to the claim of defamation against him. Indeed the appellant had admitted the publication as being libellous, even per his pleadings thus - "The appellant had merely juxtaposed the photograph of the respondent with the defamatory publication." This admission settles the point. In Eco International Bank Plc v. N. U. L. G. E., Jalingo LGC, 2014 20 NWLR (Pt. 1466) pg 49 at 79 this Court per Sankey JCA, re-stated the law relating to admission thus: "Where, as in the instant case, the defendants failed to file such as affidavit to crystal clear even to the most obtuse observer that they did not dispute the claim as they had no defence to the claim. Indeed, from Exhibit E, they explicitly, overtly and unambiguously admitted the claim." Where there is no defence, the learned trial judge is at liberty to accept as true and correct the evidence led by the respondent, which showed that there was no person in existence as Onofe and as the Vice Chairman of a Local Council in Delta and who was being investigated in a public inquiry as published in exhibits 'A' and 'B'. The defence was a ploy or a devise or farce created to defame the respondent; were it not so, the appellant would have pleaded and led evidence in proof of the existence of such a person as 'Onofe' other than the one ascribed to the photograph and further, the facts of the council and the public hearing would have been led in evidence; this was not to be. The appellant regretted referring to the respondent as Onofe and put up his photograph wrongly and offered to publish an apology. This, to me is like saying sorry, we would have called the respondent by his real name rather than Onofe and therefore regretted that aspect. The neglect and or failure to publish the apology claimed to have been stalled by the respondent's refusal, obviously shows the audacity and non-remorse of the appellant; this, in any event is a further proof that the publication was defamatory of the respondent and stands on a clear pedestal of admission in law. The case of British American Insurance Co. Ltd v. Sule (2001) FWLR (Pt. 58) 1178 to the effect that an apology was a clear case or proof or admission of libel by publication sued for, is apposite in this case. Indeed there is no lota of reason to hold to the contrary that there was no defamation by libel published against the respondent, as amongst other reasons, the contention by the appellant that the publication of the respondent's photograph was in error and occasioned by a computer error was not testified to and substantiated in all particulars material. There was no evidence led to show the real or alternative picture that was intended to be placed or juxtaposed in the publication ie Exhibits 'A' and 'B'; there was no evidence led to show, how the respondent's photograph was obtained and what other news article existed that was not offensive that was instead supposed to have been covered by the appellant in relation to the respondent. What is more, the appellant had testified that they did not need the photograph of the respondent to sell as they were Newspaper of repute!. I agree with the respondent's learned counsel when he argued that the appellant was being comic and spurious in baking the question that it never meant to refer to the appellant when it mentioned him by the name Onofe ascribed to him as an identity with his photograph and an offensive publication of stealing and embezzlement. What imputation of crime can be more than this, I or one may ask? It should be understood that the respondent was not complaining about libel injuring his professional reputation as a journalist or broad caster; therefore evidence from people who knew him as such by his mere facial appearance or photograph was not necessary nor the determinant for proof; No. The Respondent as a Nigerian, has his right to dignity and reputation and must not be maligned, howsoever by express words or effigy or photograph or carton, directly or indirectly without justification. There was no justification for the inset or juxtaposition of the photographs in the exhibits 'A' and 'B'! No doubt the obvious and inevitable presumption is that, it was intended to be the subject of the publication in all its damning consequence of erosion and smear on the integrity, honour and reputation of the respondent. The insistence on the truthfulness of the publication is a further affirmation that the man whose photographs were embossed thereon, was the Onofe with the sting of the content of criminality as reported. The unswerying finger of aspersion to the respondent and constituting libel is obvious." Per DANJUMA, J.C.A. (Pp. 17-24, Paras. D-A)
Sam Atoe & Company
Kingdom Chambers
