The appellant, the Attorney-General, appealed against the amount of an assessment of damages by a High Court judge in an action taken for libel by the respondent. The action related to the publication of allegations of treason and subversion against the respondent from the broadcasting and television stations as a result of a Press release issued by a Government news agency.
The appellant had obtained damages earlier against two newspapers as a result of publications based on the same Press release. No defence was entered and damages were assessed at K30,000, being K10,000 compensatory and K20,000 exemplary damages.
Held:
(i) Section 9 (1) 20 of the Law Reform (Miscellaneous Provisions) Act, Cap. 74, envisages different actions against joint tortfeasors.
The plaintiff may sue a number of tortfeasors in succession and may get judgment against them. The sums that can be recovered on such judgments cannot, however, exceed the sum awarded in the first of such actions.
(ii) Under s. 9 (1) (b) of the Law Reform (Miscellaneous Provisions) Act, where a plaintiff brings different actions against joint torteasors, he puts himself at risk for his costs after the first.
They cannot be given to him unless the court is satisfied that there was reasonable ground for bringing the actions.
(iii) There is no obligation upon a plaintiff to sue more than one tortfeasor. He is at liberty to select, if he wishes, one defendant whom he considers good for the total amount of damages which may be awarded. It is entirely a matter for the defendant to 35 recover contributions made from any other persons who may jointly have been guilty of the tort.
(iv) Section 12 of the Defamation Act, Cap. 70, altered the common law rule and permitted evidence to be given in mitigation of damages that the plaintiff had already recovered damages, or had brought actions for damages for libel and slander in respect of publication of similar words to those upon which the action was founded.
1974 ZR p209
DOYLE CJ
(v) Exemplary damages are punitive in nature and the result is a gratuitous gain to the plaintiff outside his proper compensation.
Such damages cannot be offset against compensatory damages.
(vi) Where the Government is the defendant the use of the award of exemplary damages is to induce the Government to discipline its servants whose action has resulted in loss to the Government, and so to serve as a deterrent for future cases. It is not necessary to give extravagant sums for this purpose.
(vii) Where no defence is entered by a defendant a court may assume that no defence was possible.
(viii) The measure of damages to be awarded in any case must be assessed against the background of local conditions.
(ix) Before an appellate court can interfere with an award of damages it must be shown that the trial judge has applied a wrong principle or has misapprehended the facts or that his award is so high or so low as to be utterly unreasonable. It is no ground for varying an award made by the trial judge that the judges in the appellate court would have awarded a different sum.
(x) Where there is a series of actions against different defendants in respect of the same or substantially the same libel, the court in the first case can deal with the matter only on very broad lines, doing its best to ensure that the plaintiff is fully compensated for the damage caused by the publication of the particular libel which is the subject of that action, bearing in mind that he should not be compensated twice for the same loss.
(xi) It is the duty of the court hearing a later action to take into account the damages awarded in an earlier action.
(xii) Where the various defendants have been brought before the court at different times the court must do its best to consider the compensatory damages as if the actions had been consolidated.
(xiii) For this purpose awards of exemplary damages made in earlier actions cannot be taken into account.
(xiv) Compensation payable by radio and television should not be any different from that payable by the newspapers.
