CHIEF T. F. ORUWARI v. MRS. INE OSLER

CORAM

PARTIES

CHIEF T. F. ORUWARI APPELLANTS

MRS. INE OSLER RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

This appeal is against the unanimous decision of the Court of Appeal Port-Harcourt Division, affirming the trial court’s decision, holding the Defendant/Appellant liable in damages in favour of the Plaintiff/Respondent for slanderous publications uttered and concerning the Respondent; also an order of restrictive injunction which has in addition been slammed on the Appellant to prevent a repetition of the slander against the Respondent. The Defendant/Appellant is contending that the Plaintiff has not proved the correctness of the English translation of the defamatory words from foreign language as uttered in Kalabari language as the first step to proving her claim.

HELD

Appeal Allowed

ISSUES

Whether the translation of a foreign (kalabari) language to court’s (English) language by a sworn interpreter is fundamental, particularly in the circumstance.

RATIONES DECIDENDI

SLANDER – BASIS ON WHICH A SLANDER UTTERED IN FOREIGN LANGUAGE CAN BE PROPERLY CONSTITUTED

“This is so as it is trite that a slander uttered in a foreign language must firstly be set out in the original language followed by a literal translation to English otherwise the action is not properly constituted to give rise to a reasonable cause of action before the court.”

RULES OF PLEADINGS – WHETHER PLAINTIFF’S CASE STANDS TO COLLAPSE IF NO EVIDENCE IS CALLED ON THE ISSUE

“In that regard it is trite that under the Rules of pleadings: – issue is joined on that question between the parties. The plaintiff’s case stands to collapse if no evidence is called on the issue. In the event of the plaintiff/respondent failing to discharge the said onus it also follows that the question of publication of the slanderous words (as in this case in Kalabari language) as uttered in a foreign language to a third party (in this case to PW5) otherwise the gist of an action in slander and a necessary factor in establishing the publication of the defamatory words against a defendant as in this case, becomes a mirage. In this regard it is trite that a trial court has to satisfy defamatory words in a foreign language by an independent sworn interpreter before acting on the same.”

DEFAMATORY WORDS PUBLISHED IN A FOREIGN LANGUAGE – REQUIREMENT FOR AN ACTION OF SLANDEROUS WORDS PUBLISHED IN A FOREIGN LANGUAGE TO BE PROPERLY CONSTITUTED

“It is settled law that the defamatory words in an action in slander as uttered and published in a foreign language as here must be set out side by side the literal translation to English language of the slanderous words for the action to be properly constituted. See Bullen and Leake, on pleadings 11th Edition at p.510 and with approval the case of Sowole v. Erewunmi (1961) 1 ANLR 741 at 743.”

ADMISSION – WHAT IS ADMITTED NEEDS NO FURTHER PROOF

“What is admitted need no further proof. See Attorney-General of Anambra State v. Onuselogu Enterprises Ltd. (1987) 4 NWLR (Pt.66) 547, Titiloye v. Oladipo (1991) 7 NWLR (pt.205) 519, Ugochukwu v. C.C.B. Ltd. (1996) 6 NWLR (Pt.456) 524 and Buhari v. Obasanjo (2005) NWLR (Pt.258) 1604. In short that the appellant not having traversed the respondent’s pleadings on the issue of the correctness of the interpretation and translation of the alleged slanderous words to English language has rightly been deemed by the lower courts to have admitted the same. See: Oshinowo v. Oshinowo (2005) ANWLR (pt.281) 1698 at 1727, Oghona v. Eke (1998) 10 NWLR (pt.568) 73, Okobia v. Ajanya (1998) 6 NWLR (Pt.559) 358. In the result, it is emphasised that not having joined issues on the point the onus on her to prove that the interpretation and translation of the slanderous words from a foreign language (i.e. Kalabari language) to English language as correct has been discharged.

DEFAMATION – EFFECT OF FAILURE TO STRICTLY FOLLOW THE PRACTICE AND PROCEDURE OF SETTING OUT THE DEFAMATORY WORDS IN A FOREIGN LANGUAGE IN A SUIT

“I am of the firm view that where the practice and procedure of setting out the defamatory words in a foreign language in a suit as here has not been strictly followed (as in this case by pleading the slander in Kalabari language and its translation to English) in constituting a claim in slander as here, the claim is challengeable on grounds of not having disclosed a reasonable cause of action in slander and in that event the action is liable to be struck out albeit in limine. This is moreso where the slander in a foreign language has not been translated to English language at all in the plaintiff’s pleadings. In other words there is no English translation of the defamatory words of course the action is fatally flawed.

CONCURRENT FINDINGS OF FACTS AND LAW BY LOWER COURTS – WHETHER THE SUPREME COURT CAN INTERFERE WITH THE CONCURRENT FINDINGS OF FACTS AND LAW BY LOWER COURTS

“Clearly, there is a concurrent findings of facts and law by the two lower courts on that issue. And this court based on a settled principle of practice cannot rightly interfere with the said decisions unless special circumstances exist to support this rule of practice. This court has only exercised this power where there are obvious miscarriage of justice arising from the violation of principles of substantive law and or procedure and perverse findings by the two lower courts. See Okulafe v. Awosanya (2000) 1 SC.107, Enang v. Agu (1981) 11-12 SC.17.”

DEFAMATION – DEFINITION OF DEFAMATION

“On the whole defamation as a tort whether as libel or slander has been judicially defined to encompass imputation which tend to lower a person in the estimation of right thinking members of the society generally and thus expose the person so disparaged (plaintiff) to hatred, opprobrium, odium, contempt or ridicule. See Nitel v. Togbiyele (2005) AFWLR (Pt.246) 357, B.P.P.C. v. Gwagwada (1980) 4 NWLR (Pt.116) and 439. It is trite that slander on the other hand has been defined as a false and defamatory statement (i.e. of a transitient nature) made or conveyed by spoken words, sounds, looks, signs and gestures or in some other non-permanent form (as against libel which is required to be in some permanent form) published of and concerning the plaintiff that is to a person other than the plaintiff without any lawful justification or excuse whereby the plaintiff has suffered special damages. I must add that slander is actionable per se without proof of damage being required to be proved by the plaintiff to succeed in the action. See words and phrases legally used vol. 5, S-Z, P.83, and also Egbe v. Adefarasin (1987) 1 NSCC (vol.18) 1.”

PROOF OF DEFAMATORY WORDS – WHETHER IT IS VITAL FOR THE PLAINTIFF TO PROVE THAT THE ENGLISH TRANSLATION OF THE DEFAMATORY WORDS IN A FOREIGN LANGUAGE IS CORRECT

“It is vital for the plaintiff to prove that the English translation of the defamatory words as here as uttered to PW5 in a foreign language is correct that is as to their literal translation to English. And again, whereas here the English translation of the alleged slanderous words cannot be agreed or admitted by the defendant then the plaintiff bears the onus in law to call an independent sworn interpreter particularly so for that purpose only, to prove the correctness and the meaning of its translation to English language; in other words this is so to prove the ultimate publication of the slander to a third party and thus consummate the action properly, which is the gravamen of an action in slander.”

PLEADINGS -WHETHER PARTIES ARE BOUND BY THEIR PLEADINGS

“It is also trite law that parties are bound by their pleadings and that facts not pleaded go to no issue and are bound to be discountenanced and expunged from the record. See: Enang v. Adu (1981) 11/12 SC.25 at 42, Okagbue v. Romaine (1982) 5 S.C. 133, Adenuga v. Lagos Town Council 13 WACA 125 at 126, Buraimoh v. Esa (1990) 2 NWLR (Pt.133) 406 at 414.”

PROOF OF SLANDER – STANDARD OF EVIDENCE IN ESTABLISHING SLANDER UTTERED IN A FOREIGN LANGUAGE

“It is trite law and also as opined by the said learned authors of Gatley on Libel & Slander that the respondent (Plaintiff) in such situations is required to prove the correctness of the translation of the foreign language to English by a sworn interpreter brought for that purpose and that nothing short of that quality and standard of evidence in establishing a slander uttered in a foreign language to English is acceptable. See: Dominion Flour Mills Ltd. v. George (1960) LL.53, N.I.P.C. v. Thompson Organisation Ltd. & Ors (1969) NMLR 99, and Aderemi v. Adedire (1966) NMLR 398 at 401.”

DEFAMATORY WORDS IN A FOREIGN LANGUAGE – RATIONALE FOR THE REQUIREMENT TO SET OUT THE DEFAMATORY WORDS IN A FOREIGN LANGUAGE IN THE ORIGINAL FORM IN PLEADINGS

“I must add that the requirement to set out the defamatory words in a foreign language in the original form in the pleadings as in the instant amended statement of claim in this case alongside the correct English translation of the defamatory words, is because English language again it must be emphasised is still the orthodox language of the court. See: Akekeja v. Oluba (1986) 2 NWLR (Pt.22) 257 at 258, 261. This requirement is not dispensed with whether or not the judge understands the foreign language; as it follows the principle of translating every document into English before it is admitted and acted upon by a court and even then it also has to be so before the defamatory words in a foreign language can he proved and received in Evidence in the proceedings at the trial.
The translation to English is usually done by an expert witness particularly through an interpreter called and sworn solely for that purpose etc. to translate the defamatory words uttered in a foreign language as in this case in Kalabari language to English language otherwise if I may repeat, the action is a non-starter: as no reasonable cause of action has been constituted to warrant a rebuttal by the defence.
This position in this regard is ably supported by the Learned authors of Gatley on Libel and Slander (9th Edition) paragraph 26.15 at 659 as follows:
“Where the libel or slander was published in a foreign language, it must be set out in the statement of claim in that language and followed by a literal translation. It is not enough to set out a translation without setting out the original or vice versa. The pleader should include an allegation to the effect that the translation is a true interpretation of the foreign language used”.

EXPERT WITNESS – REQUIREMENT TO QUALIFY AS AN EXPERT WITNESS UNDER THE EVIDENCE ACT

“…to qualify as an expert witness under the Evidence Act, the witness must show special skill in the field in which he is called upon to give evidence and it is for the Judge to decide whether or not a witness is an expert that is knowledgeable in Kalabari and English language in this case and the test of this is based on the knowledge and experience of the witness. Against these backdrops, PW5 an illiterate Kalabari man does not stand any grounds of being referred to as an expert witness on the particular facts of this matter nor the interpreter that has interpreted his viva voce testimony in Kalabari into English at the trial and I so hold that none of them is an independent witness called for that purpose. Unarguably the respondents’ case on this point therefore fails. See Azu v. The state (1993) 6 NWLR (pt.299) 303”.

PROOF OF SLANDER – ESSENTIAL INGREDIENTS A PLAINTIFF MUST PROVE TO SUCCEED IN AN ACTION IN SLANDER UTTERED IN A FOREIGN LANGUAGE

“The essential ingredients necessary to constitute and succeed in an action in slander as here uttered in a foreign language to a witness as PW5. And I must reiterate that to succeed in such actions the plaintiff must do so by:
(1) proving the actual words published to a person other than the plaintiff; and
(2) proving the translation to English by a sworn interpreter as an expert witness.
The two foregoing requirements must co-exist at the same time and must also be pleaded and satisfied before the plaintiff can succeed in an action in slander as here. The implication of failing to discharge the above essential ingredients in an action in slander as here where the slander is founded on the backdrop of a foreign language is graver as the action having been founded in defamation cannot in that regard be said to have been properly constituted without pleading and proving the defamatory words in a foreign language as required by law”.

CONCURRENT FINDINGS OF FACT – INSTANCES WHERE THE SUPREME COURT WOULD BE COMPELLED TO INTERFERE WITH THE CONCURRENT FINDINGS OF FACTS

“It is now well settled that concurrent findings of fact are rarely disturbed by this court but this court would be compelled to interfere if the findings are perverse or cannot be supported by the evidence before the court or there is/was a miscarriage of justice or violation of some principle of law or procedure. See Ugwenyi v. FRN 2012 49 NSCQR p.1243.”

CONCURRENT FINDINGS OF FACT BY LOWER COURTS – INSTANCE WHERE THE SUPREME COURT WOULD INTERFERE WITH CONCURRENT FINDINGS OF FACT BY LOWER COURTS

“The law is well settled that where there is a concurrent findings of fact by both the trial court and the Court of Appeal as it is the case at hand, this court should not as a general rule interfere except in situations where there is a miscarriage of justice. See the case of Okulafe v. Awosanya (2000) 1 SC.107.”

DEFAMATORY WORD – NEED TO PLEAD DEFAMATORY WORDS

“It is not enough, I also hasten to say, that the defamatory words be pleaded; the correctness of its English translation must also be proved before the legal expectation could be discharged.”

CASES CITED

Not Available

STATUTES REFERRED TO

Nil|

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