DISSATISFIED by the decision of a Rivers State High Court sitting in Port Harcourt, Guardian Newspapers Limited (GNL) has served a notice of appeal at the Court of Appeal, Port Harcourt Division, praying for an order to allow its appeal.The newspaper also wants the Appeal Court to set aside the judgment of the court of first instance, which found it guilty of publishing a defamatory material against one Dr. Theo Chike Osanakpo (SAN) and awarded N10 million in his favour.In the notice of appeal, the media conglomerate, through its lawyer, Olu Fayemi from G.M. Ibru and Co., is of the opinion that the trial Justice S. C. Amadi erred in law when the judge in question held that the company failed in making a case for the entitlement of qualified privilege provided by law to protect reports by journalists covering the courts and the National Assembly and also refused to consider the spirited defence put up by the appellants that the publication complained of comes under qualified privilege, without any intent of the plea of malice of the respondent.Besides, the newspaper contends that it was an error on the judge's part when he held that the publication of the widely acclaimed reputable newspaper was purportedly libelous of the respondent/applicant without considering the use of ellipses in the construction of the word held to be defamatory.He added that Justice Amadi erred in law when he held that the respondent, Dr. Osanakpo, successfully proved his case against the newspaper by misconceiving the law that the newspaper did not oppose the evidence the senior advocate gave of his reputation without calling a third party to corroborate him on how the right thinking public perceived him after the publication.To prove this assertion, The Guardian's lawyers said the judge, in his judgment, misconstrued the law when he held that the appellants failed to prove that the said offensive material was lifted from the Nigerian Deposit Insurance Corporation (NDIC) report to the floor of the Nigerian Senate during its plenary session without taking cognisance of the appellants' sole witness' oral evidence of his direct attendance of the Upper Chamber's proceedings of July 7, 2012, where the issue in question was discussed.It is elementary law of defamation, according to the company, that where a person complains that his reputation in a publication has been lowered before a right thinking public, he must call a third party to corroborate his evidence. But in this case, he contended that the trial court misdirected itself when it held that the respondent was right in giving opinion of his reputation without calling a third party evidence to justify his esteemed claim.Above all, the appellant complained bitterly of the award of N10 million given to the respondent as damages even where he failed to prove special damages or pecuniary loss in his writ of summons or statement of claims backed by documentary evidence.These, among other contentions, formed the main ingredients of the appeal the publishing house is presenting to the Court of Appeal for examination, to keep the appellate court well informed of how the trial court misapplied the law to suit the respondent/applicant against the appellant.Osanakpo brought this action against The Guardian in 2009, shortly after the publication of the said libelous material, published on Friday, July 10, 2009 on page eight, entitled: 'Shock in Senate over report of failed banks.'Irked by the publication, the claimant raised his writ of summons and statement of claims on August 3, 2009, and filed same at the trial court on August 4, 2009. In the suit, in which he claimed N2 billion as damages against the newspaper, he also joined the then Editor of the daily newspaper, Mr. Debo Adesina, and the Political Correspondent covering the National Assembly at the time, Mr. Alifa Daniel.His grouse was that this particular headline and the content of the publication actually lowered his reputation before the eyes of right thinking members of the public.Part of the texts of the publication as reproduced by him reads: 'It was obvious that there would be a blowout on the floor of the Upper Chamber of the National Assembly if the list of insiders who allegedly ran some banks aground were not read. One principal officer of the Senate from the North'' 'The Senate Committee had been working on why some banks failed, those behind the failure, and how those who lost monies could be compensated substantially.'It was also reported in that story that members of the committee were alleged to have been threatened by unknown persons, which caused the Senate President, David Mark, to reprimand the unscrupulous persons and thereafter urged committee members not to give up on their assignment as he had directed the Inspector-General of Police to give them round-the-clock protection.Relying on these published words, the claimant said,'by the said words in their ordinary and natural meaning, including innuendos, the defendants were understood to mean:' That the claimant is guilty of insider bank credit abuse;' That the claimant is one of the persons in Nigeria who abused the position of trust as a bank director by obtaining credit facility from bank and refused to pay back, thereby contributing to the mismanagement and failure of banks in Nigeria and their subsequent collapse and closure;' That the claimant used his exalted position as a bank director to unjustly enrich himself to the detriment of depositors of funds in banks with the result that he is one of those whose misconduct led to running banks aground in Nigeria and loss of depositors' funds; and' That the claimant's name is on a list of infamous persons that ruined the banking industry in Nigeria, among other insinuations in his claims.After all these pleadings of the claimant, the newspaper house filed a six-paragraph statement of defence on March 15, 2010, to counter the claims of the applicant and to join issues with him.In his written evidence in chief, the claimant stated that he was a highly distinguished legal practitioner who was conferred with the prestigious rank of SAN in 1997. He also claimed that he holds a Ph.D in law, and was as well an awardee of several honours by Pope John Paul II in 1992 and 2009.He, therefore, argued that by The Guardian publication, 'he has been greatly injured in his credit and reputation and has been brought into public scandal, odium and contempt, adding that since then, he has been and continues to be inundated with several calls from numerous persons as a result of the publication, most of which expressed negative remarks and perception about him.'The report, according to him, imputed him as being indebted to the defunct Liberty Bank Plc to the tune of N43.6 million, a development that caused him to put up an advertorial in The Guardian on July 27, 2009 denying same with the title: 'Truth of the alleged indebtedness of the sum of N43.6 million owed to failed Liberty Bank Plc by T.C. Osanakpo in respect of Rison Palm Limited.'In his reasoning, the advertorial was published to put the record straight, but despite this effort, he said, the newspaper did not deem it fit to apologise to him over what he called 'offensive words and imputations as contained in its story.' In concluding his case, the claimant's counsel, B.E.I. Nwofor (SAN), formulated two issues for the court to consider:' Whether the publication made by the defendants amounts to libel and for which the claimant is entitled to redress; and' Whether the plea of qualified privilege, fair comment and justification by the defendants will avail the defendants and absolve them of liability.On their own side, the newspaper and its members of staff also concluding cross-examination of the claimant and their address, formulated two issues for determination in the case:' Whether the claimant has made a case of libel against the defendants; and' Whether the defendants are entitled to the defence of qualified privilege.These issues by the defence are in addition to its earlier raised issues during pre-trial conference, which included:' Whether the publication, - subject matter of this suit - falls within those protected by qualified privilege and fair comment; and' If the said publication falls within those protected by qualified privilege and fair comment, whether the first, second and third defendants are entitled to the pleas of qualified privilege and fair comment.The judge, in his ruling, said: 'The defendants did not join issues with the claimant on the exact text of the publication as set out in paragraph 15 of the statement of claim and therefore are legally disabled from making it an issue in their final address.'Justice Amadi, ruling further, acknowledged that the claimant did not call any witness to corroborate his evidence as required by law, but justified the reason this vital aspect of evidence was missing.'Much as it is correct that a person's reputation is not based on the good opinion he has of himself but the estimation in which others hold him, I will hasten to add that whereas in the instant case, the claimant testified on his good opinion of himself, supported it with various honours and awards, and also after the publication he was inundated with calls from people who expressed negative perception about him, but the defendants did not challenge these pieces of evidence, which I have herein before held that the defendant admitted, it follows therefore that the claimant was relieved of the burden of calling a third party to give evidence of his estimation of himself, the claimant,' the judge held.'Put differently, the defendants, having admitted the good opinion the claimant has of himself as true and correct, there was no need of the claimant calling a third party to testify on the estimation of himself, the claimant. It would have been otherwise if the defendants had joined issues with the claimant on his good name and reputation.'According to him, 'facts admitted need no further proof.' He relied on Section 123 and 124(1)(a) and (b) of the Evidence Act, 2011 and the case of Bello V. Farmers Supply Co. Ltd. (1998) 10 NWLR (Pt. 568) p64 that the publication of the widely acclaimed reputable newspaper was purportedly libelous of the respondent/applicant without considering the use of ellipses in the construction of the word held to be defamatory.He added that Amadi erred in law when he held that the respondent, Osanakpo, successfully proved his case against the newspaper by misconceiving the law that the newspaper did not oppose the evidence the senior advocate gave of his reputation without calling a third party to corroborate him on how the right thinking public perceived him after the publication.Fayemi also contended that it was an error in law when, on the basis of the authorities he held on Issue One thus, 'I find and hold that the publication complained of by the claimant is defamatory. Issue One is, therefore, to that extent resolved in favour of the claimant against the defendants.'Regarding Issue Two, the judge also held that there was no offensive words that were contained in the NDIC report, adding that 'the offensive words complained of were chosen by the defendants in order to deliberately damage the reputation of the claimant,' stating that the newspaper 'was actuated by express malice in making the offensive publication.'He reached this decision because the defendants, according to him, 'failed to tender the letter containing the source of the publication which they claimed was lifted from the NDIC report.'Due to this failure to produce any letter from NDIC, the claimant denied the existence of the organisation, saying that whatever the defendants know about NDIC was a figment of their own imagination of a non-existing corporation.The judge, agreeing with this assertion, placed reliance on the case of Busari Bamgbose v. Emmanuel Jiaza (1991) 3 NWLR (Pt. 177) 64 at P.74, where the Court of Appeal per Tobi (JCA) as he then was, affirmed the same position.According to the judge, the non-tendering of the said letter and list of those who ran the failed banks into difficulties in evidence, denies the defendants the defence of qualified privilege.On whether the report could be justified under 'fair comment' as pleaded by the defendants, the judge said that before the report could qualify under this heading, the NDIC letter, the list of debtors of the banks and the proceedings of the Senate of July 7, 2009, must be produced in court for the court to consider whether the said newspaper report was a fair and accurate comment.He, therefore, ruled that the defence of fair comment was also not available to the defendants.On the issue of damages, the trial judge said: 'Award of damages to a successful claimant in a libel case is mainly for the defendant to make reparation for the injury inflicted on the claimant by the libelous publication. It is also to compensate the claimant.'Taking into consideration the totality of the evidence adduced in this case, I assess the amount of money payable to the claimant as damages at N10,000,000.00. I make no order as to costs.
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