A Newspaper that makes libellous publication for profit deserves to be punished. However…

Western Publishing Co. Ltd v. Dr. Kayode Fayemi [2017] 13 NWLR (Pt. 1582) 218 at 292, paras. B-C, per Ugo, JCA:

“…They (punitive damages) can be awarded, especially where it is pleaded and proved that the defendant intended to make a profit from the false publication which he believed  would far outweigh whatever damages that would be awarded against him in a libel action…”

Newspapers and libel

Blogger’s Note:

What we have learnt from the above statement of the law is that although a person guilty of defaming the character of another is ordinarily liable in damages, where such defamation (in the form of libel for instance) was done for the purpose of making profit, the courts would be inclined to award punitive or exemplary damages. The interesting reasoning of the court is that such a person deserves to be punished because some form of ‘economic or business decision’ might have been made by the offending party in that the person might have acted on the belief that the profit that would accrue from the defamatory publication would outweigh whatever damages that would be awarded by the court.

Notably, the foregoing applies not only to newspaper outfits. Any person who defames the character of another can suffer punitive damages in deserving cases.

In the instant case, the trial court awarded a whopping 2 Billion Naira aggravated (compensatory) damages against the Appellants having found the Appellants liable for libel, while refusing the exemplary damages sought.  The Appellant had alleged that the Respondent, who at the time was the Governor of Ekiti State, had corruptly enriched himself and also had bribed some Justices of the Supreme Court who were then hearing the appeal of his predecessor, for Governor Segun On, against the Respondent’s election. The Appellant was held liable for libel and same finding was upheld by the Court of Appeal who held that none of the defences put up by the Appellants availed them.

The Appellants also argued that the 2 Billion Naira awarded as aggravated damages was excessive and punitive. The Court of Appeal of course had no difficulty in holding that punitive damages can be awarded in deserving circumstances like in the instant case. However, the Court of Appeal was absolutely dissatisfied with the award made by the trial court and emphatically criticized same thus:

“Two Billion Naira damages in the circumstances is quite on the very high, if not even outrageous, side. It is not only outrageously excessive as aggravated damages but even excessively punitive as exemplary damages, assuming that was what the lower court meant to do even as it refused to award the exemplary damages claimed. In reality the lower court seems to have given (and extremely generous too) with the left hand what it had purported to have denied the claimant with the right hand. With this award the respondent may well decide to go into immediate retirement and live the life of a billionaire (at least in Naira terms) for the rest of his life, all because of a libel published against him which the same court has incidentally even ordered that the defendants/appellants publicly apologise to him and even retract in three prominent newspapers. Even if the respondent were to be rendered paraplegic in an accident case, it is doubtful if he would get this huge sum the court awarded him for defamation of character. I know that damages in defamation actions are ‘at large’ and involves the exercise of discretion, like all exercises of discretion, must be judiciously and judicially exercised. The competing cases of the parties to justice (including the issue of award of damages) must be put in the imaginary scales of justice and weighed in exercising the discretion society entrusts the judge with. The instant award does not seem at all to have been so scaled. In fact it has more of the feel of a jackpot and/or windfall than an award by a court of justice in a libel case.”

(See pages 290-291, paras. D-B of the report).

To add, with the award made by the trial court, the 1st Appellant might as well fold up!

On a lighter note, even if the 2 Billion Naira was allowed to stand, as a politician (of typically Nigerian breed), it is extremely doubtful if that is enough to make the Respondent proceed to immediate retirement.

After a review of previous authorities on the point, the Court of Appeal reduced the award to 13 Million Naira. This is more sensible.

You may read: “How Punitive can Damages be in Nigeria?”

*I do not agree with the author of the referenced article that there is need for legislative intervention regarding award of punitive damages. We simply need our judges to ensure that discretion in awarding damages (just as in all other cases) is exercised judiciously and judicially.

Nature of the offence of Terrorism

Karumi v. FRN (2016) LPELR-40473(CA), p. 25, paras. A-D, per IKYEGH, JCA:

“The gravity of the offence of terrorism which involves the use of violence or force to achieve something, be it political or religious, is a grave affront to the peace of society with attendant unsalutary psychological effect on innocent and peaceful members of the society who may be forced to live in perpetual fear. It is an offence that may even threaten the stability of the state. The sophisticated planning and execution of the acts of terrorism show it is an offence that requires premeditated cold-blooded organisation. The circumstances under which such a crime is organised calls for appropriate sentencing to deter its recurrence by potential or prospective offenders.”

Say no to terrorism

Blogger’s Note:

Click here and here for further discussions on the concept of terrorism which is a concept that cannot be easily defined. We are however guided by the opinion of his Lordship quoted above.

Is Indigenous People of Biafra (IPOB) a terrorist organisation?

It is submitted that the Nigerian Military was wrong in declaring IPOB a terrorist group and the South East Governors were wrong in proscribing the association.

In an article, Terrorism and Human Rights Protection: Nigerian Perspective, published in 2015, B. E. Ewulum prophesied: “It is not doubtful that in a short while the nation may witness a barrage of proscription of certain societies and associations in the name of fighting terrorism.” The learned writer proceeded to give an insightful opinion on the necessary steps to be taken before the proscription of a society. He said: “It is therefore very essential that before a society should be proscribed there must be a legislation which will be subject to judicial opinion on the issue where a challenge is raised. As such, the onus must be on the State to show that the measures taken fall within the permissible aims under the national and international human rights law. This implies that States must not claim that the rights-limiting measures taken to preserve national security when they are in fact taken to effectively stifle all opposition or to repress its population. Apart from this, care should be taken to ensure that the principles of necessity and proportionality are respected in all cases; specific safeguards are required to ensure that the limitations to the right to freedom of association are construed narrowly. These measures include ensuring that the principle of legality is respected in the definition of terrorism, terrorist acts and terrorist groups. The courts shall ensure that such definitions are not too wide or vague as such definitions may lead to the criminalization of groups whose aim is to peacefully protect, inter alia, labour, minority or human rights. Any decision to proscribe a group or association needs to be taken case by case, treated on their individual merits or otherwise and no two cases shall be given the same treatment. To do so, there shall be need to ensure that the assessment is based on factual evidence of the group’s activities, which implies that the government may not make the determination before registration has taken place and before the group has started to exercise its activities. The assessment must be made by an independent judicial body, with full notice to the affected group as well as the possibility of appealing the decision.”

Flowing from the above, we maintain that the Nigerian Military and the South East Governors were wrong in their approach.

Biafrans

Photo credit: Channelstv.

Now, regarding the recent military action in the South East, which action has been widely condemned, though supported by some, it is our position that the Federal Government must show maximum respect for the life of every Nigerian. The Nigerian Military, the Police as well as other arms wielding agencies of Government must not put on the character of terrorism which they are mandated to combat; characters such as uncontrollable hunger to maim and destroy even on the slightest provocation must stop.

There is nothing to justify the ultimate decision of the Federal Government to carry out the recent military operations in the South East. This is notwithstanding the style and seemingly thoughtless disposition of IPOB in pushing for Biafra in exercise of their rights to self-determination.

IPOB has severally canvassed, and brilliantly too, that they are open to a  referendum and other peaceful means of determining whether or not the people of the South East region (and other areas mapped as Biafran region) are still interested in remaining in Nigeria, in view of the claims based on marginalization.

Sadly, the IPOB leader, Mazi Nnamdi Kanu, does not appear to be employing enough intelligent means to push for this. While he advocates for peaceful means in one breath, in another breath, he sings the songs of war (while keeping his family abroad) in a distasteful manner that ridicules Nigeria. The sovereign state called Nigeria which is peopled by a large population with corresponding right to remain Nigerians must be accorded due regard and respect.

Until Biafra is achieved, it is absolutely wrong to be going about and carrying on as if Biafra is here already. For instance, declaring that there will not be election in Anambra State this year was utter wrong (although this threat has been withdrawn). Without missing the point, asking for Biafra in exercise of the right to self-determination is a serious political question. This means that high level politics need to be played with high level skills. It may take years but it is achievable. For instance, it took a patient play of politics for the peaceful voting that brought about Brexit to take place; so too, the voting concerning the fate of Scotland. Since IPOB and others have often cited these instances as well as other similar examples, it is important to understudy what made the events possible. You need a disposition that will connect not only politicians to the struggle but the large body of elites who detest associating with anything dishonourable. The South East for instance, is rich and blessed with this class of human resources and incredible number of successful businessmen and women who value their investments all over Nigeria and the world.

Finally, the enlightening opinion of Senator Ekweremadu is worth reading. We must learn crucial lessons from developments in other parts of the world. If care is not urgently taken, another civil might be staring at our faces. Indeed, the situation at hand triggered by Nnamdi Kanu through spearheading the Biafran struggle is currently exposing more significant issues concerning our national life. We must give heed to these issues.

No war

 

Avoid plagiarism: A respondent may adopt the brief of a co-respondent.

 

Opeyemi v. Owoeye [2017] 12 NWLR (Pt. 1580) 364 at 393, paras. E-G, per Bage, JSC:

“Let me pause to register our observation on the duplicitous briefs of the two respondents, which are similar in content and context, appearing verbatim and serialization as in the examples of pages 5-9 of the arguments on issue one. This is a point to note in advocacy and brief writing. The 2nd respondent, knowing it has nothing different to canvass in its brief would at best have adopted or rested its position on that of the claimant/respondent as against seeming and obvious plagiarism. We reckon with the date of filing as against purposive dates the documents were signed. The 1st respondent’s brief is dated 24th June, 2013 while the date of the 2nd respondent’s brief is 13th May, 2014 and filed on 5th May, 2014, almost a year after the 1st respondent’s brief which it copied almost verbatim. It paints a picture of a needless, afterthought recourse of a less diligent legal officer.”

Blogger’s Note

Interestingly, the learned Justice of the Supreme Court described the act of the 2nd Respondent as plagiarism. It is doubtful though, if this is actionable plagiarism.

The apex Court has correctly directed on the proper thing to do where a respondent entirely agrees with the arguments in the brief of a co-respondent. This is mostly where the respondents are being represented by different counsel.

Usually, what inspires the approach of counsel such as counsel to the 2nd Respondent is the drive to file something and ensure that he earns his fees. In this wise, the more professional thing to do is to be more diligent by adding something significant to the co-respondent’s brief, whose arguments he largely agrees with. That way, he would have filed a brief of some substance that will further assist the court in determining the case. Otherwise, a mere verbatim copy of a co-respondent’s brief may actually waste the time of the court considering the duplicity.

Any issue for determination of more than 3-4 lines is wrong!

 

Saleh v. Abah [2017] 12 NWLR (Pt. 1578) 100 at 129, paras. C-E, per Bage, JSC:

“We wish to pause a while to observe the seemingly superfluous and overlapping issues formulated by the parties in their briefs of argument. First, any sentence more than 3-4 lines is grammatically inelegant, and putting it straight, wrong. The appellant formulated 8 issues in paragraph 3.0 at pages 7-9 of the appellant’s brief of argument. The average number of each issue, formulated as separate sentence, is 8-10 lines. This is not too elegant. By adopting the issues formulated by the appellant, although this is a sole-appellant appeal; the 3rd respondent also invariably slips into the inelegance of long and inordinate sentences and the surplusage style of brief drafting and writing through overlapping formulation of issues.”

Blogger’s Note

Elegant drafting is one of the most important tools of a successful lawyer. Sometimes, I wonder what some counsel intend to achieve by incoherent presentation of arguments. It does not assist the court in any way. Rather, it can make the job of the court more onerous.  One of the duties of counsel is to assist the court, as ministers in the temple of justice, to resolve disputes.

Click here for more judicial opinions on the importance of good drafting.

Notable Pronouncement: Supreme Court condemns trafficking in young girls.

 

Serah Ekundayo Ezekiel v. A. G. Federation [2017] 12 NWLR (Pt. 1578) 1 at 20, paras. C-E, per Nweze, JSC:

“Permit me, however, to add that it is indeed very worrisome that the insatiable allure of filthy lucre could impel a woman to traffic in young girls (whom the trial court, aptly, described as “mothers of tomorrow”) knowing fully well that the end result would be the ultimate debasement of womanhood: how immoral! how disgusting!”

Blogger’s Note:

Notwithstanding that the Appellant was a first offender, Sanusi, JSC, in his contribution, was of the position that the Appellant deserved maximum sentences for the charges. According to him, “the mere offence of trafficking in persons and more so in young persons should not be taken lightly. It is worse than slavery which was thought as an abomination and abolished.” See page 26 of the report.

Human trafficking especially in young girls (for prostitution, forced labour, and other forms of dehumanising servitude and exploitation) has become a huge problem in Nigeria. Recently, the Deputy Senate President, Senator Ekweremadu, decried the high rate of the crime in the country. The Federal Government through the National Agency for the Prohibition of Trafficking in Persons (NAPTIP) has been fighting this menace (see recent reports). Even so, the situation has attracted foreign aid.

While poverty, among several other factors account for the increase in the level of this crime, Nweze, JSC believes that ‘despicable greed’ and inordinate craving for wealth inspired the Appellant in the instant case. In a seminal pronouncement, his Lordship, one of the finest Justices of the Supreme Court, stated (at page 21, paras. F-H):

“My lords, before I end this very short judgment in this appeal… permit me to avail the appellant, and all persons of her ilk, of one of those arcane insights I gained from my long and fruitful sojourn in the realm of the history of ideas. It is the profound wisdom ingrained in the aphorism which Social Ethicists left behind for an avaricious humanity, namely, amo habemo habendi crescit – the love of having increases with having. In other words, there would be no limit to the cravings for material things unless people rein in their unquenchable appetite for them. After all, they are notable only for their evanescence!”

I join the world in condemning this evil. Parents should be extremely watchful, careful and protective of their children.

Read:

Human Trafficking in Nigeria: Root Causes and Recommendations.

IMADR Briefing Paper for the Special Rapporteur on trafficking in persons, especially in women and children.

Trafficking of Women and Children in Nigeria: A Critical Approach.

See more.

Featured image credit: Tribune.