WILLIAMS V. DAILY TIMES OF NIGERIA LTD.

• Pages: 15-65

WILLIAMS V. DAILY TIMES OF NIGERIA LTD.

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WILLIAMS V. DAILY TIMES OF NIGERIA LTD.

CHIEF F.R.A WILLIAMS

V

DAILY TIMES OF NIG. LTD.

SUPREME COURT OF NIGERIA

BELLO,



C.J.N.

OBASEKI,



J.S.C.

ESO,



J.S.C.

NNAMANI,



J.S.C.

UWAIS,



J.S.C.

KAWU,



J.S.C.

AGBAJE,



J.S.C.

9th January, 1990.

PLAINTIFF/APPELLANT

DEFENDANT/RESPONDENT

SUIT NO. SC. 21/1987.

Practice and Procedure - Appeals - Notice to vary - Order 8 Rule 3 (1) of the Supreme Court

Rules, 1985 - Respondent's notice of cross-appeal - When required - Judgment - Varying

of - Proper procedure.

Damages - Exemplary and Aggravated - Differences - when to award.

Tort - Libel - Award of - Guiding principles - Defence - privilege - Whether publication of

writ of summons not yet filed in court will amount to defence.

ISSUES:

1.

When can an appellate court properly interfere with the award of damages made

by a trial court?

2.

What is the distinction between Exemplary Damages and Aggravated Damages?

3.

When can Aggravated Damages and Exemplary Damages be awarded?

4.

Whether or not the respondent's notice and not a substantive notice of appeal

by the respondent is the proper procedure for contending that a finding or

determination which is fundamental and crucial to the respondent's case be

reversed.

5.

How can a finding of Court which is crucial and fundamental to a case be set

aside?

6.

When and how may a respondent seeking to set aside a finding which is crucial

and fundamental to a case do so.

FACTS:

The plaintiff/Appellant, Chief F.R.A. Williams, sued the Defendant/Respondent,

Daily Times of Nigeria, Ltd, Claiming the sum of N250,000 as exemplary damages:

or in the alternative N100,000.00 as aggravated damages for libel against him

(Plaintiff/Appellant) which was contained in a newspaper publication known as the

"Evening Times" published by the Defendant company.

In the edition of the newspaper of Monday 19, November, 1979, the banner

headline of the Newspaper on its first page read in very bold capital letters -

"F.R.A. WILLIAMS SUED FOR N5 Million". This caption was followed in less bold

letters by the words. "Tussle over the Will of a father". The picture of the plaintiff

was displayed by the side of the publication.

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NIGERIAN SUPREME COURT CASES

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[1990] 1 N.S.C.C.

The trial court rejected the plea of privilege, put up by the defendants at the trial,

on the ground that what was published was not a report of the proceedings that took

place in open court but was of the writ of summons filed in the matter and which was

yet to be served on the plaintiff/Appellant when the publication was made.

The trial court also found that the defendant never apologised to the plaintiff when 5

the latter demanded them to do so. The defendant did not even publish the end of

the suit to show that the plaintiff was eventually vindicated but instead published

other further banner headline which further libelled the plaintiff.

The judge, therefore, held that the intention of the Newspaper in this case was

not to inform the public but to ridicule the plaintiff, and as such they were liable in 10

libel. He, however, did not accept that the libel attracted exemplary damages but he

awarded aggravated damages of N100.000.00.

The defendant appealed to the Court of Appeal on the issues of liability by relying

on the defence of privilege. The Appeal Court held that the trial court should not

have taken into consideration, as it did, the two other publications of the same paper 15

about the respondent which have not been proved to be false and had been said by

the learned judge to have been done to ridicule the respondent. It further held that

to grant what was wholly claimed in the suit as exemplary unliquidated damages

was not in step with the practice of the court. The court, therefore, reduced the

award of damages to N60,000.

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The Appellant appealed, against the reduction of damages to the Supreme Court.

The Respondent on the other hand filed a notice of intention to contend that the

decision of the court below be varied under Order 8 Rule 3(1) of the Supreme Court

Rules, 1985. The respondent contended,

inter alia,

that the amount of N60,000

damages is excessive and amounts to not just aggravated damages, but to ex- 25

emplary damages. He, therefore, urged the Supreme Court, to reduce substantially

the award of N60,000 damages.

The Appellant objected to this mode of intention to vary judgment of the lower

court adopted by the Respondent and argued that the Respondent should have filed

a substantive notice of cross appeal and not respondent's notice.

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HELD:

1.

It is only when there is a failure to follow the settled principles that an appellate

court can properly interfere with the award of damages made by a trial court.

These principles are:

(a)

That the trial judge acted on a wrong principle of law.

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(b)

That the judge made an estimate of damages which is entirely erroneous, that

is, which no reasonable tribunal would have made, and

(c)

That the appellate court is not disturbing the award of damages merely on the

ground that it would have come to a different figure had it heard the case itself.

2. Exemplary damages is awarded in order to punish a defendant whose conduct 40

has been outrageous or scandalous whereas Aggravated damages is awarded

to compensate the plaintiff for any aggravated harm done to him such as injury

to this feelings as a result of the special circumstances of the case.

3. Exemplary damages are usually awarded where statutes prescribe them and

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apart from this they are awarded for two categories to wit:

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(i)

Oppressive, arbitrary or unconstitutional action by servants of the govern-

ment.

(ii)

where the defendant's act which has been held to be tortious was done with

a guilty knowledge, the motive being that the chances of economic advantage

outweigh the chances of economic or even perhaps physical penalty.

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Aggravated damages might result out of malevolence on the part of the

tortfeasor, spite by him or just the manner of committing the wrong which

injures the plaintiff's proper feeling of dignity and pride.

4. There is a settled principle evolved through numerous decisions of this court that

an appellate court will not upset an award of damages merely because it might

have awarded a different figure if it had heard the case itself. For an appeal or

WILLIAMS V. DAILY TIMES OF NIGERIA LTD.

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cross-appeal against the award of damages to succeed, the appellant must show

that the trial judge proceeded on a wrong principle of law or that the award was

an entirely erroneous estimate. These are matters that are fundamental and,

therefore, the appropriate procedure to follow in raising them can only be by

means of a notice of cross-appeal arid positively not by respondent's notice.

5.

Any respondent seeking to set aside a finding of court which is crucial and

fundamental to a case can only do so by an application to affirm or vary the

judgment on other grounds.

6.

A respondent seeking to set aside a finding which is crucial and fundamental to

a case can only do so through a substantive cross-appeal and not by an

application to affirm or vary the judgment on other grounds. Where however, a

respondent intends to dispute the jurisdiction of the Court of trial or to contest,

the competency of the entire proceedings or to maintain the absence of a

fundamental pre-requisite, he has to file a substantive cross-appeal and not a

respondent's notice.

[As to

interference by the appellate court in the award of damages by the trial

court,

See

Balogun v. Labiran

[1988] 19 N.S.C.C. Pt.1 p.1056

Okafor & Anor. v. Okitiakpe

[1973] 8 N.S.C.C. 70.]

[As to

the setting aside of finding of court which is crucial and fundamental to

a case,

See

Adekeye & Ors. v. Akin Olugbade

[1987] 18 N.S.C.C. Pt.11 Pg.865.]

[As to

the procedure to be adopted to reverse a finding or determination of court

which is crucial and fundamental to a case,

see

Enag & Ors. v. Adu & Ors.

[1981]

12 N.S.C.C. 453.]

[As to

the difference between a cross-appeal and a respondents notice,

See,

Oguma Associated Companies (Nig.) Ltd. v. I.B.W.A. Ltd.

[1988] 19 N.S.C.C. Pt.1

Pg.395.]

CASES REFERRED TO

IN JUDGMENT:

1.

L.C.C. v. Ajayi

(1970) 1 All N.L.R 291

2.

Oyekan v. B.P. Nig. Ltd.

(1972) 1 All I\1.L.R (Pt.1) 45, at 47-48

3.

Adekeye v. Akin-Olugbade

(1987) 2 N.W.L.R. 214 at 226-227, (1987) 6 S.C. 268.

4.

Ogwuma v. International Bank for West Africa Ltd

(1988) 1 N.W.L.R. 658.

5.

L.C.C. v. Ogundemurin

Suit NO. SC/;c35/69 dated 26th November, 1971.

6.

B.E.O.O. Ind. (Nig.) Ltd. v. Maduakoh

(1975) 12 S.C. 91.

7.

African Continental Seaways Ltd. v. Nigerian Dredging Roads and General

Works Ltd.

(1977) 5 S.C. 235.

8.

Enang v. Adu

(1981) 11-12 S.C. 25.

9.

Dumbo v. ldugboe

(1983) 1 S.C.N.L.R. 29.

10.

Ellochin v. Mbadiwe

(1986) 1 N.W.L.R. 47.

11.

Roe

v. Mutual Loan Fund Ltd.

(1887) 19 Q.B.D 347

12.

National Society for the Distribution cf Electricity v Gibbs

(1900) A.0 280 at

287.

13.Benmax v. Austin Motor

Co.

Ltd.

(1953) A.C. 370 at 375.

14.

Lardner v. The Sketch Publishing

Co.

Ltd

15.

Rookes v. Bernard

(1964) A.G. 1230.

16.

Mc Caney v. Associated Newspapers

(1965) 2 Q.B. 104.

17.

Broome v. Cassell

(1972) A.C. 1079.

18.Zik's Press Ltd. v. Alvan Ikoku

13 W.A.C.A. 188 at 189.

19.0di v.

Osafile

(1985) 1 N.S.C.C. 14, (1985)

1

S.C. 37.

20.

Bucknor Mcleen v. Incar Motors

(1980) N.S.C.C. 232.

21.Zik's Press Ltd. v. Awolowo

14 W.A.C.A. 66.