When an aggrieved individual need not personally testify to prove that he has been defamed, or injured by a defamatory statement.
A review of the decision in WESTERN PUBLISHING COMPANY LTD & ANOR V DR. KAYODE FAYEMI (2015) LPELR-24735 (CA)
“Iago: What, are you hurt, Lieutenant?
Cassio: Ay, past all surgery …I have lost my reputation! I have lost the immortal part of myself, and what remains is bestial.
Iago: Good name in man and woman, dear my lord, Is the immediate jewel of their souls.
Who steals my purse steals trash; 'tis something, nothing;
'Twas mine, 'tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.”
- William Shakespeare’s ‘Othello’, Act 3, Scene 3
Drawing a parallel with Cassio’s expression of grief as captured above, the Law of Torts ‘compensates’ a defamed plaintiff with an award of damages (against the defendant) for injury to the his reputation and attendant mental suffering. The principle – as enunciated by the law courts- is that a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation. More often than not, the question is: what is the measure of damages a successful litigant gets for the injury to his hard-earned reputation? Closely tied to the foregoing poser is the question, must he personally testify in court to prove the quantum of damages, and/or that his reputation was injured by the false statement of fact uttered (which makes it, ‘slanderous’) or published (in which case, ‘libelous’) by the defendant?
Whilst recognizing that one decision may not always provide all the answers (to end further enquiry into a subject matter), Dr. Kayode Fayemi’s action for libel in defamation against Western Publishing Company Ltd again brought to the fore some of the issues in civil action for defamation. And, of course, answers were proffered.
It is apposite to now turn to the facts.
Dr. Kayode Fayemi, who was at the material time, Governor of Ekiti State sued Western Publishing Company Ltd, publishers of ‘Compass newspaper’, alleging that he was libelled by the following headline: HELP! Fayemi is deducting N1 billion from councils monthly -NULGE. widely published by the newspaper through its and electronic channels. The headline was credited to the newspaper’s Abuja correspondent, sued as the 2nd defendant.
The matter proceeded to trial, and at the close of proceedings, the learned trial Judge adjudged the defendants liable for libel. The Court consequently awarded aggravated damages of Two Billion Naira (N2,000,000,000), among other orders, against the defendants and in favour of Dr. Fayemi.
The defendants, now appellants, were dissatisfied with the judgment and proceeded on appeal to the Court of Appeal.
Issues for determination
The appeal to the Court of Appeal turned on three main issues:
Whether the learned trial Judge rightly or wrongly held that the claimant/respondent in a personal/private action (libel) who did not testify on his reputation and injury to his reputation and who failed to testify in support of the reliefs claimed by him had discharged the onus of proving libel and his entitlement to the reliefs granted in his favour;
Assuming learned trial Judge rightly held that the respondent discharged the onus of proof of libel, whether learned trial Judge correctly applied relevant principles of law in concluding that the respondent was entitled to the award of aggravated damages; and,
Assuming learned trial Judge rightly held that the respondent is entitled to aggravated damages, whether the award of N2 Billion is not manifestly excessive, oppressive and out of tune with the pattern of award of damages in libel cases as to justify the intervention of this Honourable Court by way of setting aside of same.
Decision of the Court
On the first issue, the Court restated the legal principle that no rule of law or practice requires a plaintiff in a civil suit to be physically present in court to testify if he can otherwise prove his case through his witness(es). Indeed, that there is no such rule which compels a defendant to appear before the court and to testify before he may successfully defend an action against him. Accordingly, a plaintiff or defendant can prove his case without presenting himself or testifying before the court. Indeed, judgment in an appropriate case, may be entered in a suit with or without the presence of the parties so long as they are duly represented.
On the second and third issues raised for determination, the Court distinguished between aggravated and general damages which are both compensatory and its objective as collective in a defamation claim, being to compensate the claimant for the damage caused to his reputation and injury to his feelings by the defendant's defamatory utterance - that is as opposed to exemplary damages which are punitive. The Court further reiterated the difference in the award of general damages and aggravated damages being that in the latter, aggravated damages, the court in awarding damages takes into account the malice and bad motive of the defendant which may have increased or "aggravated" the claimant's feelings of hurt and distress and so awards higher damages, traditionally referred to as 'aggravated damages', to compensate for that wrong.
It was against this background that the Court held that the compensatory damages of N2, 000,000,000 awarded the respondent against the appellants was rather high and excessive. Consequently, the said award of damages in the sum of N2, 000,000,000 by the lower court was set aside, and in its place the sum of Thirteen Million Naira (N13,000,000) was assessed and awarded in respondent's favour against the appellants as aggravated damages. All other orders made by the lower court were deemed valid.
The decision of the Court of Appeal in this case is no doubt significant in coming to the unassailable conclusion that Dr. Fayemi did not have to personally testify to prove injury to his reputation. Of a truth, libellous imputation discredits the estimation of the defamed individual before third parties, or members of the general public who happen to know the defamed person. As such a third party/witness to whom the defamatory publication was made may suffice to show the defamed plaintiff’s reputation and injury to his reputation through the defamatory statement/publication. Put simply, the perception of the public is decisive. The tort of defamation, it is said, arises because every person has a right to protection of his good name, reputation and the estimation in which he stands in the society of his fellow citizens. It is pertinent to mention here that, in any event, the principle remains that if the publication is defamatory in its natural meaning the plaintiff need not prove anything more.
On the award of damages being too high or excessive, award of punitive/exemplary damages (which by their nature are meant to punish the defendant for his conduct in inflicting harm on the plaintiff) are relatively rare in defamation cases, with the usual type of damages being compensatory damages which seeks to restore the injured party, as nearly as possible, to his or her rightful position - the position he or she would have been in had he or she not been wronged. A successful claimant in a libel action must be properly compensated. However, the exercise of discretion with the court must be balanced, that is, must judiciously and judicially exercised. There are guiding principles the court must take into consideration. Account must be taken of some relevant factors and award of damages should not be ridiculously high or low.
In conclusion, there are subtle lessons that lie buried in this case. Or, put more appropriately, even though the following did not arise for discussion in the judgment under reference, we consider it necessary to discuss them, in passing.
One, Dr. Fayemi even though (appears) wronged in his official capacity as Governor of Ekiti State, sued personally. The strategy appears consistent with the decision of the Court of Appeal in
Omega Bank Plc v Government of Ekiti State & Ors reported in (2007) 16 NWLR (Pt. 1061) CA 445. In that case, the Court of Appeal held that a libel suit instituted by a Government of a State of the Federation and its Chief Executive, the Governor and also the Speaker of the State House of Assembly was incompetent because the plaintiffs, being public officials cannot maintain an action in defamation. The court took the view that libel is a personal and private matter and therefore, in view of the constitutional rights to freedom of expression and the press, it cannot be the subject of a suit by public officials in their official capacities. Ogunwumiju JCA, in her concurring speech, expressly held that the circumstances would be different if the public officials institute the action in their personal names.
Secondly, the defence of fair comment and bona fide criticism which constitutionally-guaranteed liberties of the press/right of the public to know and that of expression ordinarily ordain on newspaper houses do not appear to have been well explored in this case.
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