Foster Sutton, P. This appeal arises out of two actions for libel brought by the United Africa Company Ltd. The first suit, P/60/53, was against the Associated Newspapers of Nigeria Ltd., and another, and the second, Pf61f53, was against the African Development Corporation and eleven others.
The article complained of in the first suit was admitted to have been published in the issue of the Eastern Nigeria Guardian dated 27th April, 1953, and it was also admitted that the Associated Newspapers of Nigeria Ltd., were the printers and publishers, and the other defendant, the Editor, of the newspaper, and that it had a large circulation in Nigeria
The plaintiffs alleged that the article was printed and published of and concerning them in the way of their business as: (a) merchants, owners, managers and operators of an installation at Port Harcourt known as the “Bulk Oil Plant” where palm oil intended for export from Nigeria is bulked processed and stored pending shipment; and (b) licensed buying agents of the Nigeria Oil Palm Produce Marketing Board. The article reads as follows:
“UNION TELLS GOVERNMENT OF UNITED AFRICA COY'S GREEDINESS”
The Licensed Mrican Palm Union have accused the United Africa Company Limited of Monopoly and have asked the Government to cause the Company to hands off running of bulk oil plants in the Eastern Provinces.
The following resolution was adopted at their meeting held in 1 Niger Street, here on 17th April.
“Whereas it is the view of the Licensed Buying Agents that the United Africa Company monopolised Palm Produce Trade in Eastern Nigeria;
“And whereas the United Mrica Company own all Bulk Oil Plants in Nigeria and charges rent on these plants;
“And whereas the United Company received commission on tonnage output of oil at all Bulk Oil Plants;
“And whereas the Government pays the United Africa Company reasonable amount of money for the maintenance of staff and equipment of all Bulk Oil Plants in this country.
“Be it resolved and it is hereby resolved that the United Mrica Company be made to hand over the running of all Bulk Oil Plants in this region to the Nigerian Marketing Board t Board or cease from buying Palm Produce in Eastern Nigeria so that it could direct its energies to running its Bulk Oil Plants and leave all other Licensed Buying Agents to carry on with Palm Produce Trade.”
“2. We must point out that the United Africa Company has made it its firm policy to monopolise palm produce trade in Eastern Nigeria so that Africans will be ousted at all costs.
For this reason the United Africa Company has made it a common practice to refuse to receive oil from African Licensed Buying Agents at the Bulk Oil Plants, Port Harcourt.
“When wagons, which in most cases evacuate oil of European firms and lorries which convey oil of African Licensed Buying Agents arrive at the same time at the Bulk Oil Plant area, the Manager-in-charge often orders that oil in wagons should first be off-loaded for bulking while lorries are locked out of the gate for about three or four days thus punishing the lorry drivers and incurring more expenses for the Licensed African Buying Agents.
“The fact that the United Africa Company operates wholly and entirely on the Bulk Oil Plants at Abonnema, Calabar, Koko, Opobo et cetera, without intrusion by any Licensed African Buying Agent notwithstanding it continues to work us out at the Oil Plant Port Harcourt which is the only place we lay our hands.
“3. The United Africa Company has deliberately refused to accept our recommendation in respect of bulking allocation vide our letter to the Allocation Committee dated June 26, 1952, a portion of which reads:-
‘For any quantity above 400 tons declared by Buying Agent as its calculated stock, allocation should be one-quarter of the declared stock; from 300 tons to 100 tons, one-third of the calculated stock; 100 tons to 50 tons one-half of the calculated stock; from 50 tons to 25 tons, two-thirds of the calculated stock and from 25 tons 1 ton, total clearance of calculated stock should be allocated’.
“The above recommendation was made in good faith in order to help the Licensed African Buying Agent who has insufficient capital to meet up further purchases as soon as he is paid for only a small quantity which he is allowed to bulk.
“Where a small firm is refused clearance of the twenty-five tons it could buy, its business will automatically cease because there is no money and containers to make fresh purchases.
“Moreover the proportion of his purchases and what he is allowed to bulk is small and leaves him with a very small margin of profit which is inadequate to meet his trade expenses for the month and also pay his employees.
“4. While African Licensed Buying Agents continue to suffer the United Africa Company enjoys overall privileges of the Bulk Oil Plant which is under its control.
“The attached Bulking Allocation Circular will show fully the critical condition under which smaller firms are placed.
“At times notices are given that there is no space in the Bulk Oil Plant and therefore oil cannot be accepted for bulking.
“Even at this time, the United Africa Company continues to bulk its oil normally.
“The 'No Space' notice does not affect the United Africa Company but the smaller firms only.
“5. It is heart-rending to observe that the United Mrica Company labourers at the Bulk Oil Plant, Port Harcourt charge extra monies before operating on the oil of the Mrican Licensed Buying Agents even though they are paid to discharge their duties.
“Quite infrequently it happens that when a report to the Bulk Oil Plant Manager is made to enable him to check this practice he turns a deaf ear on us.
“This attitude, no doubt, is a means to discourage the African Licensed Buying Agents.
“6. The management of the Bulk Oil Plant being entirely in the hands of the United Africa Company, the Licensed African Buying Agents oil suffer irrecoverable losses in weight.
These surplus weights go to swell the heavy turnover of the United Africa Company while the Licensed African Buying Agent is paid on the figures shown on his Bulking Sheets which is prepared by the very United African Company.
“7. We have made several protests individually and collectively in the past to which the authorities concerned have paid no heed.
“And each time we ask why we are so maltreated we are threatened that a recommendation to the Nigeria Marketing Board would be made so that our licences may be withdrawn.
“We now cry out to the world in general and the Government of Nigeria in particular to discharge us from this economic prison by adopting the above resolution in sympathy with the African Licensed Buying Agents in Eastern Nigeria whose sole trade is on palm produce.
“Copies were sent to His Excellency the Governor of Nigeria, The Council of Ministers, Lagos, The Eastern House of Assembly, Enugu, The Eastern Regional Development Board, Enugu, The Western House of Assembly, Ibadan, The Lieutenant-Governor, Eastern Region, The Senior Shipping Office, Port Harcourt, The Principal Produce Office, Port Harcourt, The Secretary, Oil Palm Produce Licensed Buying Agents' Commissioner, Port Harcourt, The Press, and Minister of Commerce and Industries”.
The publication complained of in the second suit was contained in a letter dated 23rd April, 1953, addressed to the Secretary, Nigeria Oil Palm Produce Marketing Board, and was substantially the same as the article published in the Eastern Nigeria Guardian. In this suit the plaintiffs complained that the defendants had caused the letter to be published in the Eastern Nigeria Guardian, and had sent copies of it to the twelve addressees mentioned in the ultimate paragraph of the article.
In each suit the plaintiffs alleged that;-
“By the said words the Defendants meant and were understood to mean that the plaintiff abuses its position as managers and operators of the said Bulk Oil Plant for the purpose of obtaining unfair and preferential treatment and facilities for itself in its capacity as Licensed Buying Agent in comparison with other Licensed Buying Agents; that the plaintiff permits: and encourages its employees at the said Bulk Oil Plant to accept bribes; that the plaintiff habitually causes or permits untrue records to be prepared of the quantities of palm oil delivered to the said Bulk Oil Plant, in which the quantities delivered by other Licensed Buying Agents are intentionally and to the Plaintiff's knowledge understated; that the plaintiff habitually and knowingly mispresents to the Board that the resulting surplus quantities of oil have been delivered by itself; that the plaintiff by these means cheats and defrauds other Licensed Buying Agents and the Board, and obtains unlawful profits for itself; that the plaintiff conducts its business as managers and operators of the said Bulk Oil Plant and as a Licensed Buying Agent of the Board in a dishonest, unfair and improper manner, and is unfit to be entrusted by the Board with the management or operation of the said Bulk Oil Plant or to be a Licensed Buying Agent of the Board”.
The defendants in the first action pleaded, firstly, that the words were a fair comment on a matter of public interest “viz method, system and management of Bulk Oil Plant in Eastern Nigeria”, secondly, what is now called, as a matter of convenience, the “rolled up plea”, and thirdly, they defiled that the words were capable of bearing the meaning alleged by the plaintiffs or any defamatory meaning.
Defendants 5 to 12 in the second suit admitted writing the letter, causing it to be published in the Eastern Nigeria Guardian, causing the original to be sent to the Nigerian Oil Palm Produce Marketing Board and copies to the twelve addressees already referred to. They pleaded fair comment, the rolled up plea, and that the words complained of do not bear the meaning alleged by the plaintiffs or any defamatory meaning.
The case was tried before Thomas J., and resulted in a judgment for the plaintiffs for £3,000 damages against the defendants in both suits P/61/53 and P/60/53, in respect of the publication in the Eastern Nigeria Guardian, and for £1,500 in suit P/61/53 in respect of the publication of the letter dated 23rd April, 1953.
At the hearing of this appeal Counsel for the appellants submitted that there was no evidence to justify the learned trial Judge's finding that the defendants in suit P/61/53 were acting "spitefully and therefore maliciously/”, a proposition with which I am unable to agree.
After reviewing the evidence relating to each of the charges made against the respondents the trial Judge found as a fact that they were untrue, and there can, I think, be no doubt that there was evidence before him upon which he could properly reach that conclusion.
In his evidence at the trial the 7th defendant reiterated the charges made in the letter and alleged that “the matters complained of . . . . . . had been going on from 1951-53”.
The meeting between the Port Harcourt members of the Oil Palm Produce Licensed Buying Agents Committee and the Minister of Commerce and Industries held on the 15th May, 1952, at which the 2nd, 3rd and 7th defendants were present, was convened for the express purpose of discussing any difficulties the Buying Agents might be experiencing.
Various difficulties were discussed at that meeting, and the minutes of it, Exhibit “15”, record the following:-
“The Minister then addressed the meeting and stated that he wished to make it clear to all Buying Agents that, although U.A.C. were owners and Managers of the B.O.P., he was perfectly satisfied that they were not in any way whatsoever taking advantage of their position to favour U .A. C. He emphasised this point, and referred to matter on the subject which had recently appeared in the local Press as being ‘nonsense’. He invited any members who were dissatisfied on this point to bring fonvard their complaints there and then. There were no complaints.
The Minister then referred to a previous occasion on which a former Licensed Buying Agent had sought to obtain more than his due of bulking space by over-declaring his stocks and he pointed out that one of the purposes of the selection and licensing of Buying Agents was that the Board might select firms and individuals of integrity to buy for them, and that it relied upon Licensed Buying Agents to deal honestly. He asked the meeting how they would propose to deal with any Licensed Buying Agent over-declaring stock figures in the future, and it was suggested that such an Agent should have his licence withdrawn. The Secretary informed the Minister that there was already a case under investigation”.
If there were genuine complaints, of the nature set out in the letter, it seems strange that they were not ventilated at that meeting. The fact that they were not seems to me to support the finding that they were not bona fide. In this connection it is relevant to observe that no suggestion of any such charges was made at the second meeting with the Minister held on 26th August, 1952, Exhibit “6”. The respondents asserted that the first time they heard of them was in the issue of the Eastern Nigeria Guardian of 27th April, 1953.
In fact the first time they saw the light of day would appear to be after the resolution passed at the meeting of the Union held on 17th April, 1953. The minutes of that meeting record that the 7th defendant “disclosed how he collided with the B.O.P. Manager recently and the subsequent letter he received from him for over-bulking”. It was after that that the resolution was passed, and the 7th and 11th defendants, Chief Alozie and the Secretary of the Union were asked to meet the Editor of the Eastern Nigeria Guardian, who was present at the meeting “by invitation”, on the 18th to "draft the full petition”.
The 7th defendant had tried to exceed his bulk allocation, and the evidence shows that the Manager of the respondents' Bulk Oil Plant had foiled this attempt and reported the matter, Exhibit “17”, to the Senior Shipping Officer, Department of Marketing and Exports, Port Har-court, “for 4isciplinary action to be taken”.
The learned trial Judge reached the conclusion that the letter containing the, charges was actuated by malice arising out of this incident and of the fact that the defendants who were, in a sense, in competition with the respondents, had, in spite of repeated attempts, failed to persuade the Nigeria Oil Palm Produce Marketing Board, the Department of Marketing and Exports (the bodies responsible for the policy regulating the allocation of quotas) and the Minister, to introduce a system of allocating giving the defendants preferential treatment.
I feel bound to say that, on the evidence, I too, would have come to the same conclusion. The unnecessarily wide distribution of that obviously defamatory document is, I think, further evidence of malice.
It is clear that the allegations contained in the letter are not comments, but statements of fact and it is fair to say that Counsel for the appellants did not seriously argue to the contrary.
The finding of express malice, which I have already held to have been justified on the evidence, destroys the defences of privilege and fair comment in suit P /61/53.
Counsel for the appellants then argued that the trial Judge erred in following the decision in Smith v. Streatfield (1913) 3 K.B. 764, by holding that the malice of the defendants in suit P/61/53 defeated the defence of fair comment by the defendants in suit P/60/53.
It is true that the principle in Smith v. Streatfield was put in doubt and the case distinguished in Longdon-Griffiths v. Smith (1951) 1 K.B. 295, but I am of the opinion that the principles expressed by Banks, J., as he then was, in the former case are clearly applicable to the present case. If statements complained of are defamatory, statements of fact and not of opinion, and are proved to be untrue and made maliciously I am quite unable to see how a newspaper which chooses to publish them can successfully sustain a defence of fair comment.
Moreover, I am of the opinion that there is some substance in the argument of Mr Milmo, for the respondents, that the Editor of the newspaper was so closely identified with the defendants in P/61/53 as to justify the view that the defendants in P/60/53 must be held to be something more than the innocent publishers of the libel. I am unable to agree with his submission that the trial Judge would have been justified in finding that the Editor drafted the offending document, but he was present at the meeting of the Union on the 17th April, 1953, and again on 1st May, 1953, when the matter was under discussion, and it was agreed that he should be consulted, firstly, about the drafting of the letter, and secondly, in connection with the drafting of a Press release. There is no record that he declined to assist in the manner desired, nor did he go into the witness box, and it is reasonable to infer that the defendants in P/60/53 were responsible for the headline to the publication in their newspaper which reads: “Union Tells Government of United Africa Coy's Greediness”.
Mr Ibekwe further submitted as regards defendants 1 to 4, there was no evidence that they signed the letter of 23rd April, 1953, and that since they denied having done so the plaintiffs case against them, anyway, must fail. He based this submission on the, I think, equivocal plea in paragraph 4 of the Statement of Defence in P /61/53 which reads: “In any event if it is averred that they (meaning the first four defendants) are signatories to the said letter (which they deny). . . .”
It was not disputed that they were members of the “Licensed African Palm Union”, and it is clear from the minutes of the various meetings of the Union which were put in evidence that these defendants were all represented at one or more of the meetings where the letter (“Petition”) was discussed. For example, defendants 2 and 3 were represented at the meeting field on 17th April, 1953, when the resolution which led to the letter was passed and the 7th and 11th defendants, Chief Alozie (who represented the 3rd defendant at a number of the meetings) and the Secretary were asked to meet the “Editor of the Eastern Nigeria Guardian on Saturday, the 18th to draft the full petition” the first three were represented at the meeting of 21st April, 1953, when “Mr A. B. Okoro was asked to forward the copy to Mr G. B. Somiari to censor it in case of libel” and defendants 2, 3 and 4 were represented at the meeting held on 1st May, 1953.
Further evidence bearing on the point was given by two witnesses called by the plaintiffs one of whom testified that A. J. Okorie who purported to sign the letter for the 3rd defendants was employed to them, and the other that Ude Ogidi who purported to sign for the 1st defendants was their “Shop Manager”; the 7th defendant, the only one who gave evidence at the trial, testified that “the representative of the Mrican Development Corporation was present at the meeting”, and that Mr Alozie who was present had stated that he represented the Eastern Farmers Trading Company.
It is further to be observed that the 11th and 12th defendants, who purported to sign the letter on behalf of the 2nd and 4th defendants, respectively, admitted writing and publishing it, paragraph 5 of the Defence, and nowhere, is it alleged that the four signatories were not acting within the scope of their authority, as I have already pointed out, the first four defendants contented themselves by merely denying that the signatures were theirs.
In the face of these facts, and in the absence of any evidence to the contrary, I am of the 'pinion that it was satisfactorily proved that the four defendants concerned were parties to the preparation and publication of the letter in question.
Even if this were not the position, the letter was admitted in evidence by consent, Exhibit “1”, and Counsel for the defendants made no reservation. The letter was clearly tendered to prove the libel against the defendants, and since their Counsel allowed it to be put in as proved, without objection, I am of the opinion that they must be held to be bound by it.
Counsel also urged that the damages awarded were excessive. As has frequently been pointed out in these cases, the Court of Appeal will only interfere with the assessment of damages if the trial Judge acted on some wrong principle of law or made an entirely erroneous estimate, and this he clearly did not do.
We intimated, during the argument, that we were unable to agree with Counsel's submission that the learned trial Judge failed to exercise a judicial discretion when awarding costs.
Finally, appellants' Counsel submitted that the trial Judge erred in giving judgment for £3,000 damages jointly against the defendants in suits P/60/53 and P/61 153 in respect of the publication of the libel in the newspaper, in the first case for publishing it and in the second for causing it to be published, since the defendants in P/61/53 were not parties in suit P/60/53.
The two suits were consolidated, upon the plaintiff's application, by an order made under Order 2 Rule 7 of the Supreme Court Rules, on 11th November, 1953.
The defendants in both suits were joint tort feasors in so far as the publication of the libel in the newspaper was concerned, and two judgments could not have been given in respect of the joint tort. If the application to consolidate had been made immediately after the writs had been filed, that is to say, before pleadings were filed, it would have been quite in order for the plaintiffs to have filed one Statement of Claim, and they would, no doubt, have done this. In that event I do not think it could be suggested that one judgment in respect of the joint tort could not properly be given, and I do not agree with the proposition that the fact that two Statements of Claim have been filed alters the position. It follows that, in my view, the form of judgment in this case was right.
For the reasons given I would dismiss this appeal with costs fixed at £49-3s-0d.
de Comarmond, Ag. C.J. I concur. Coussey, J.A. I concur.