SELIMOTU JAMIU V. ALHAJA TAIBAT OLOWOLAGBA

CORAM

Yargata Byenchit Nimpar Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Uwabunkeonye Onwosi Justice of the Court of Appeal

PARTIES

SELIMOTU JAMIU

APPELLANTS 

ALHAJA TAIBAT OLOWOLAGBA

RESPONDENTS 

AREA(S) OF LAW

DEFAMATION, SLANDER, EVIDENCE, VULGAR ABUSE, BURDEN OF PROOF, PRACTICE AND PROCEDURE, CIVIL PROCEDURE

SUMMARY OF FACTS

The case revolves around a claim of defamation (slander) by the Respondent against the Appellant. The Respondent (Claimant at the lower Court) alleged that in July 2016, the Appellant defamed her in Saki town by accusing her of being a murderer and trying to assassinate the Appellant. The Respondent claimed that the Appellant stated in the midst of many people in Saki: “ALHAJA TAIBAT, O FEE PAMI, MO JUE LO. A PAAYAN O RAN AWON APAAYAN SIMI SUNGBON OLORUN MI JU E LO,” meaning “ALHAJA TAIBAT, YOU AIMED AT KILLING ME, BUT I AM MORE POWERFUL THAN YOU DO. YOU ARE A MURDERER, YOU SENT ME SOME ASSASSINS BUT MY LORD OVER POWERED YOU.”

The Appellant claimed that prior to this incident, she had reported the Respondent’s son to the police for calling her a mad person in public. This led to police inviting the son, which allegedly angered the Respondent. Subsequently, the Respondent confronted the Appellant at the police station, where she allegedly threatened the Appellant. The following day, according to the Appellant, the Respondent attempted to run her over with a car. The Appellant reported this to the police, which led to criminal charges being filed against the Respondent. The Appellant contended that any statements she made about the Respondent were privileged communications to the police, not public defamatory statements.

At the trial, the Respondent called two witnesses (herself as CW1 and another as CW2), while the Appellant testified in her own defense as DW1. The High Court ruled in favor of the Respondent and awarded damages of N500,000.00. Dissatisfied with the judgment, the Appellant appealed to the Court of Appeal.

HELD

1. The appeal was allowed.

2. The judgment of High Court of Oyo State, Saki Judicial Division delivered by Hon. Justice L. A. Ganiyu in Suit No: HSK/29/2020 on 6th March, 2018 was set aside.

3. The Court held that the statement made by the Appellant was not slanderous but a mere vulgar abuse, considering the context of ongoing hostilities and exchange of words between the parties.

4. The Court found that the Respondent failed to properly establish the essential elements of slander.

ISSUES

1. Whether the Respondent has proved the case of slander against the Appellant.

2. Whether by the absence of sworn interpreter to translate the spoken words made in Yoruba Language to English, the Respondent has discharged the onus of proof placed on her in this case.

3. Whether the Respondent has placed facts before the Court below to justify the award of N500,000.00 against the Appellant.

RATIONES DECIDENDI

DEFINITION OF SLANDER – WHAT CONSTITUTES SLANDER

Slander is defined as a “defamatory statement expressed in a transitory form, especially speech” – see Black’s Law Dictionary (7th Edition).” “It is elementary that slander is the tort of defamation which is not in permanent form. “It disparages the reputation of the plaintiff or tends to lower him in the estimation of right thinking members of society generally or exposes him to hatred, ridicule, slander, odium, contempt and similar feelings. The law presumes that it is false unless the contrary is pleaded and proved and the law further presumes damage since it is actionable per se.” See BULLEN & LEAKE & JACOBS – Precedents of Pleadings 12th Edition Paragraph 356 page 624 at 625. – Per UDOM-AZOGU, J.C.A in Mosaku & Anor v. Sanyaolu & Ors (2006) LPELR-11623(CA) (Pp. 19 paras. A)

ESSENTIAL ELEMENTS – REQUIREMENTS TO ESTABLISH SLANDER

For slander to be established and indeed the tort of defamation, the Plaintiff has the burden of establishing six ingredients which are: “(a) Publication of the offending words. (b) That the words are defamatory of Claimant. (c) That the words complained of refer to the Claimant. (d) That the words were published to third party (e) Falsity or lack of accuracy of the words complained of; and (f) That there are no justifiable legal ground for the publication of the words, ILOABACHIE v. ILOABACHIE (2005) 13 NWLR (Pt. 943) 695, GUARDIAN NEWSPAPER LTD v. AJEH (2005) 12 NWLR (Pt. 938) @ 205.” See CHIME V. EZEA & ANOR (2014) LPELR-24128,(PP. 23-24 PARAS. D). – Per UWABUNKEONYE ONWOSI, J.C.A.

ADMISSION OF FACTS – EFFECT OF ADMISSION

An admission has been defined as: “a statement oral or documentary, made by a person which suggests any inference as to any fact in issue or relevant fact… It also means a statement by one of the parties to an action, which amounts to acknowledgement by him that one of the material facts relevant to the issues in controversy in the proceedings is not as he claims it to be… An admission… if it is clear, unequivocal, and cannot be said to be based on any misrepresentation of any fact, is binding on the maker and such maker cannot be heard changing it subsequently or at a later stage to suit his new or fresh case or averment. It is trite and settled law, that where a party admits a fact in issue, such fact in issue does not require any further proof.., as an admission is the strongest and highest proof of the fact in issue.” See Alahassan v Ishaku (2016) 10 NWLR Part 1520 Page 230 at 298-299 Para G-C.– Per UWABUNKEONYE ONWOSI, J.C.A.

DISTINCTION BETWEEN VULGAR ABUSE AND DEFAMATION – WHEN STATEMENTS ARE MERE VULGAR ABUSE

Is this publication, a vulgar abuse or a form of defamation? What is a vulgar abuse? Okoro JSC, in CHIEF NYA EDIM EKONG V CHIEF ASUGUO E. OTOP (2014) LPELR-SC 127/2006 PP.1920 explained thus: “There is need to emphasize that it is not every statement which is made and which annoys a person that is defamatory. It is also not every vulgar statement, mere abuse or insult which is actionable. Thus, whenever a statement is placed before a Court to determine whether or not it is defamatory, the Court must make findings of fact whether the words complained of are capable of bearing defamatory meaning and then ask and find answer to, the question whether the plaintiff was actually defamed by those words, in SKETCH PUBLISHING COMPANY LTD V AJAGBE MOKEFERI (supra), this Court held that in deciding whether a word is capable of defamatory meaning the Court will reject that meaning which can only emerge as the product of some strained or forced or utterly unreasonable interpretation. See OKOLO V MIDWEST NEWSPAPER CORPORATION (1973) 3-4 SC. 99.” – Per AWOTOYE, J.C.A in Egbebu v. Izejiobi & Anor (2017) LPELR-42285(CA) (Pp. 11-13 paras. B-B)

CONTEXT OF STATEMENTS – IMPORTANCE OF CIRCUMSTANCES IN DETERMINING DEFAMATION

The learned trial judge in his finding held thus: “I am not at all satisfied that a reasonable reader of the article under reference will reasonably construe the words complained of in the light plaintiff has shown. It is obvious to me that before the reader starts reading; he would have noticed the caption “Rejoinder” which appears on about all the articles showing that parties were returning “fire for fire” as 1st Defendant put it. With this impression on the mind of the reader, the reference to the plaintiff as a “never do well…..” will obviously be understood by him as amounting to no more than vulgar abuse. To hold otherwise is to my mind to abdicate one’s common sense. Although, I hold that the words complained of amount to no more than a vulgar abuse they are nonetheless actionable on the authority of Thorley V. Kerry (1812) 128 E. R. 367 and back home on the authority of Benson V. West African Pilot Ltd.” I am in complete agreement with the reasoning and conclusion of the learned trial Judge which is in line with the law. I agree that the publication in view of its circumstance was a vulgar abuse. – Per AWOTOYE, J.C.A in Egbebu v. Izejiobi & Anor (2017) LPELR-42285(CA) (Pp. 11-13 paras. B-B)

PRESUMPTION OF DAMAGES – WHEN SLANDER IS ACTIONABLE PER SE

It is admitted that where there is calculated attempt to injure the reputation of another, and the reputation of such person was indeed injured. The person is exposed to contempt and ridicule, and lowered in the estimation of the right thinking members of the society. The dignity, personality and indeed what the person stands for in the society are affected. And the law presumes that such slanderous statement is false unless the contrary is pleaded and proved, and the law further presumes damage since it is actionable per se. See BULLEN & LEAKE & JACOBS – Precedents of Pleadings 12th Edition Paragraph 356 page 624 at 625. – Per UWABUNKEONYE ONWOSI, J.C.A.

PREPONDERANCE OF EVIDENCE – STANDARD OF PROOF IN CIVIL CASES

In determining either balance of probability or preponderance of evidence, the trial Judge is involved in some weighing by resorting to the imaginary scale of justice adumbrated in Mogaji v. Odofin (1978) 4 SC 91. In arriving at the balance of probability or the preponderance of evidence, the trial Judge needs not search for an exact mathematical figure in the weighing machine because there is in fact no such machine and therefore, no figure; talk less of mathematical exactness. On the contrary, the trial Judge relies on his judicial and judicious mind to arrive at when the imaginary scale preponderates and that is the standard, though oscillatory and at times nervous. – Per UWABUNKEONYE ONWOSI, J.C.A.

PUBLICATION TO THIRD PARTIES – REQUIREMENT TO ESTABLISH DEFAMATION

To be defamatory, the libel or slander must have been published of and concerning the plaintiff without lawful justification or excuse. Cited EGBE V ADEFARASIN (1987) NSCC (VOL 18) 1, Oruwari V Osler (2013) 5 NWLR (Pt 1348) 535, EKONG V OTOP & ORS (2014). 5-6 SC (Pt.1) 33 @ 35. – Per UWABUNKEONYE ONWOSI, J.C.A.

PRIVILEGED COMMUNICATION – REPORTING TO POLICE

Counsel submitted that assuming but not conceding the fact that the said words were said, they were made to the Police and Lawyer only; that report to the Police is PRIVILEDGED and cannot ground Defamation. Referred: SECTION 378 (3) & (4) of the Criminal Code, where it is stated that disclosure to the Government Agents like Police as in this case, is not defamatory. That the Court in OSAYANDE VS OBONG OKOKON EDEM ETUK (2008) I NWLR (PT 1068) 211, 239, held that members of public have a duty to complain of another to the Police, and the Police have a duty to receive the information and that the occasion is privileged and no publication of libel is made in such event.” – Per UWABUNKEONYE ONWOSI, J.C.A.

REQUIREMENTS FOR PROVING SLANDER IN FOREIGN LANGUAGE

Counsel here argued that by Pages 44 and 46 of record of Appeal, Evidence of CW1 and CW2 were in Yoruba language. That under Cross-Examination of CW2 by the Defendant’s Counsel, the CW2 said he is not educated in Western Education. The Counsel submitted that where the purported slanderous words were made in foreign language, as in this case Yoruba, it must be set out in the statement of claim in that Language and followed by a literal translation. The pleader must also include an allegation to the effect that the translation is a true interpretation of the foreign Language used. Cited ORUWARI VS OSLER (2012) 52 (PT 2) NSCQR 107, 135. – Per UWABUNKEONYE ONWOSI, J.C.A.

REQUIREMENTS FOR ACTIONABLE SLANDER IN FOREIGN LANGUAGE

The Court in ORUWARI’s case further held at pages 138-139, that to succeed in the actions, the plaintiff must do so by: 1. Proving the actual words published to a person other than the plaintiff. 2. Proving the translation to English by a sworn interpreter as an expert witness and these requirements must co-exist. – Per UWABUNKEONYE ONWOSI, J.C.A.

TEST OF DEFAMATORY STATEMENT – REASONABLE PERSON STANDARD

The test of whether a statement is defamatory or not, one considers what the meaning of the words would convey to an ordinary person. Cited: OKOLO V MIDWEST NEWSPAPER CORP. (1977) NSCC 11, DUMBO V IDUGBOE (1983) 1 SCNLR 29, AGBANELO V UNION BANK OF NIG. LTD (2000) 7 NWLR (Pt 566) 534.”– Per UWABUNKEONYE ONWOSI, J.C.A.

BURDEN OF PROOF IN VULGAR ABUSE – ONUS ON DEFENDANT

Again that where a defendant asserts that the offensive words are mere vulgar abuse, the burden of proof is on him or her to adduce evidence to show that the words were words of heat and anger, and that words were understood as mere vulgar abuse by those who were present when they were spoken. Referred: ESE MALEM in his book titled LAW OF TORT (3023) REVISED EDITION, PAGE 547.” – Per UWABUNKEONYE ONWOSI, J.C.A.

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Evidence Act, 2011

3. Criminal Code

4. Court of Appeal Rules, 2016

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