ISERAMENYA v. OFODION (2020)

ISERAMENYA v. OFODION

(2020)LCN/14840(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Monday, December 14, 2020

CA/B/135/2017

RATIO

LIBEL: REQUIREMENT OF THE CLAIMANT IN AN ACTION FOR DAMAGES FOR DEFAMATION

Now, in an action for damages for defamation, be it libel or slander, the law requires the Claimant to plead in his pleadings and prove by credible and cogent evidence the essential elements of the tort of defamation, namely:
1. That the words complained of are defamatory
2. That the words complained of referred to the Claimant.
3. That the words complained of were published by the Defendant
4. The resultant damages in case of slander except where it is actionable per se without proof of damages See Nsirim V. Nsirim (1990) 3 NWLR (Pt. 1380 285. See also Din V. African Newspapers of Nig. Ltd (1990) 3 NWLR (Pt. 139) 392; Onu V. Agbese (1985) 1 NWLR (Pt. 4) 704; Onyejike V. Anyasor (1992) 1 NWLR (Pt. 218) 437; Iloabuchi V. Phillips (2000) 14 NWLR (Pt. 6860 43.
In law therefore, it is these ingredients that constitute a prima facie case which a Claimant must make out for the Defendant to even be required to lead evidence in his defense. In other words, once or where a Claimant by his pleadings and evidence led at the trial fails to establish any of the above ingredients, which must be shown to co – exist, then no prima facie case of defamation could be said to have been made out against a Defendant by a Claimant and in such circumstances, there would be nothing, really nothing whatsoever, for the Defendant to prove in his defense since a Defendant is in law under no duty to prove anything in his defense if the Claimant has not made out his case at least on a prima facie basis so that the need to confront it by the Defendant may arise. See The Right To A Good Name: Law of Defamation Simplified by Sir Hon Justice Biobele Abraham Georgewill, Published in 2011 by Convince Concepts PH @ pp.63 – 64. See also generally on proof of prima facie case; Jolayemi & Ors. V. Olaoye & Anor (2004) 12 NWLR (Pt. 887) 322.

Thus, the first duty on the Appellant as Claimant in an action for damages for defamation by way of slander is to prove that the words were defamatory. In law, defamatory words may be expressly defamatory on its face or it may be ambiguous or innocuous. So, in order to succeed a Claimant must prove that the words complained of were defamatory. The real test is therefore, whether under the circumstances in which the words were alleged to have been published reasonable persons to whom the publication was made would be likely to understand it in a defamatory sense. It follows therefore if the words complained of are not defamatory then there is of course no defamation on which the claim of a Claimant could succeed. See Clerk & Lindsell on Torts, 11th Edition @ p. 711. See alsoAccess Bank Plc V. M.F.C.S.S (2005) 3 NWLR (Pt. 913) 460; Koko V. Midwest Newspaper (1977) 11 NSCC 11; Awoniyi V. AMORC (1990) 6 NWLR (Pt. 154) 42; Katto V. CBN (1999) 6 NWLR (Pt. 607) 390. PER GEORGEWILL, J.C.A.

DEFAMATION: WHAT CONSTITUTES A DEFAMATORY WORD

A defamatory word is that which tends to bring down the reputation of another or expose him to odium and ridicule in the estimation of reasonable members of the society. It does not necessarily mean that such a word must impute a moral fault against the Claimant. See Akufere V. Sketch Publishing Co. Ltd. (1971) 1 UILR 13 @ p. 15. PER GEORGEWILL, J.C.A.

DEFAMATION: DUTY OF THE CLAIMANT IN AN ACTION FOR DEFAMATION

My lords, in an action for defamation, it is essential as well as indispensable that the Claimant must insert or include in his Statement of Claim the allegation that the words complained of were spoken or written ‘of and concerning the Claimant’. This requirement is very essential because the very essence of the law of defamation is the protection of the reputation and estimation of the Claimant in the opinion and eyes of others. Thus, in law no matter the gravity of the imputation made, no speech or writing is esteemed to amount to defamation unless it refers to and reflects on some particular person or persons. See Dalumo V. The Sketch Publishing Co. Ltd. (1972) 1 All NLR 130, where Fatayi – Williams JSC (God bless his soul) had opined inter alia thus:
“It is an essential element of the cause of action for defamation that the words complained of should be published of the Plaintiff…..As the law stands, the test is whether words that do not specifically name the Plaintiff refer to him or not is this; Are the words, such as reasonably in the circumstances, would lead persons who knew the Plaintiff to believe that he was the person referred to?” PER GEORGEWILL, J.C.A.

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

BLESSING ISERAMENYA APPELANT(S)

And

SATURDAY MORFI OFODION RESPONDENT(S)

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Edo State, Coram: D. I. Okungbowa J., in Suit No. HEK/6/2014: Blessing Iseramenya V. Saturday Morfi Ofodion, delivered on 24/10/2016, wherein the claims of the Appellant as Claimant for damages for defamation against the Respondent as Defendant were dismissed.

The Appellant was dissatisfied with the said judgment and promptly appealed against it vide a Notice of Appeal filed on 18/11/2016 on three grounds of appeal at pages 109 – 111 of the Record of Appeal. The Record of Appeal was transmitted to this Court on 24/3/2017 but was deemed as properly transmitted on 14/5/2019. The Appellant’s Brief was filed on 5/10/2017 but was deemed as properly filed on 14/5/2019. The Respondent, despite service of all the processes on him, did not file any brief and on 15/9/2020 leave was granted to the Appellant for the Appeal to be heard on the Appellant’s brief alone.

At the hearing of this appeal on 24/11/2020, Dr. M. O. Oseghale, learned counsel for the Appellant, appearing with K. Agbonghale Esq., adopted the

Appellant’s brief as their arguments and urged the Court to allow the Appeal and set aside the judgment of the Court below and grant the claims of the Appellant against the Respondent. The Respondent, though served with hearing notice on 17/11/2020, did not participate at the hearing of this appeal.

By a Writ of Summons and Statement of Claim filed on 4/2/2014, the Appellant as Claimant commenced an action against the Respondent as Defendant claiming the following reliefs, to wit:
1. The sum of N20,000.000.00 only as General/Aggravated Damages she suffered from the slanderous words used by the Defendant against her.
2. The Defendant should also be made to write a written apology and a sworn declaration of retraction of the defamatory words within 3days of the delivery of this judgment.
3. The Defendant should also be made to ring a bell and announce the retraction of the defamatory words in Uhiele and Uwenlenobo all in Ekpoma within 3days of the delivery of this Judgment. See pages 1 – 6 of the Record of Appeal.

BRIEF STATEMENT OF FACTS:
The gist of the case of the Appellant as Claimant before the Court below as can be

gleaned from the averments in her pleadings and the evidence put forward by her and her witnesses as in the Record of Appeal was that on 10/1/2014, the Respondent uttered some defamatory words against the Appellant, which ran thus;
“Blood monioeigho nu bhonubhenebudaluhenye. Oriasosoribhi family no sebha no asaborlubhenanything” – meaning the Claimant is using bloodmoney and there is nothing the Claimant can do to the Defendant and there is nobody in the Claimant family that can do the Defendant anything. In pidgin English the Defendant said “u no no say everibodi no say di moni you de use is blood moni,if no bodi don tell you before I don tell you na, you can’t do mi anything”

It was the case of the Appellant that she is a business woman and carries on the business of wholesale and retail of textiles of different types and resident and that she owes a store along Ekpoma/Auchi Road, Ekpoma, a shade in the market, Ekpoma and also a shade in Irrua market in Esan Central L.G.A, where she does her business of sales and supply of various textile materials. On 10/1/2014, while her husband was roofing their new house at Uwenkodigbon, Uhiele Ekpoma, very

close to the Respondent’s house, the Respondent came to meet the Appellant’s husband and asked him why is the Appellant only roofing her house and leaving the rest houses around and then proceeded to shouting on top of his voice and uttered some alleged slanderous words; to wit
“ifu no hear, I say blood moni we your wife blessing dey use na make bodideycatch you.”

The Appellant’s husband was with the workers on site, and on hearing the above words, called the Appellant on telephone and told her that the Respondent was telling the whole world that she was using blood money. The Appellant came to the scene and asked the Respondent where he saw her using blood money. The Respondent repeated the alleged slanderous words more emphatically to the Appellant in Ishan language as earlier set out above. That the alleged words were uttered in the presence of so many people, including the people that were working for the Appellant’s husband in his house. The Appellant’s husband subsequently summoned the Respondent before the community but the Respondent did not attend. Hence the Appellant’s husband told her to take any legal action.

The slander has affected her very adversely in her businesses as customers now shun her businesses. See pages 7 – 17, 64 – 76 of the Record of Appeal.

On the other hand, the gist of the case of the Respondent as Defendant before the Court below as can be gleaned from the averments in his pleadings and evidence as in the Record of Appeal was that he never uttered the alleged defamatory words against the Appellant but is merely a relation to the husband of the Appellant and had suffered series of harassments by way of Police arrests through the instigation of the Appellant and her husband in relation to family issues and had just been released from Police detention when he was falsely alleged to have uttered the offending defamatory words against the Appellant. See pages 34 – 38, 46, 76 – 78 of the Record of Appeal.

The parties filed and exchanged pleadings and the matter proceeded to trial. At the trial, the Appellant testified and called four witnesses, PW1, Ehikioya Kingsley; PW2, Madam Juliet Obi; PW3, Madam Anita Ebare and PW4, Samuel Iseramenya Ehimen in support of the averments in her pleadings and closed her case. In his defense, the Respondent

testified in line with the averments in his pleadings and closed his defense. The parties filed and exchanged written addresses which were subsequently adopted by their counsel. On 24/10/2016, the Court below delivered its judgment dismissing the Claims of the Appellant against the Respondent, hence this appeal. See pages 82 – 108, 109 – 111 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, three issues were distilled as arising for determination from the three grounds of appeal, to wit:
1. Whether the learned trial judge was right in law to have held that the slanderous words were not meant to disparage, the Appellant in her trade or business when the appellant is a trader or business woman? (Distilled from Grounds one)
2. Whether the learned trial judge was right to have held that since the Appellant did not bring her case under one of the four heads as a result the Appellant must prove special damages in order to succeed?(Distilled from Ground two)
3. Whether the learned trial judge was right to have held that the Appellant failed to prove actual and direct special damages in the fall of her

business was a direct consequence of the scandalous words? (Distilled from Ground three)

My lords, upon due consideration of the pleadings on the issues as joined and the evidence as led by the parties before the Court below as can be gleamed from the Record of Appeal in the light of the findings in the judgment of the Court below, it does appear to me that the only apt issue arising for determination in this appeal is an amalgam of the three issues, namely: “Whether the Court below was right when it held that the Appellant did not prove her case to entitle her to judgment on her claims against the Respondent and thereby dismissing her claims against the Respondent?”

SOLE ISSUE
“Whether the Court below was right when it held that the Appellant did not prove her case to entitle her to judgment on her claims against the Respondent and thereby dismissing her claims against the Respondent?”
APPELLANT’S COUNSEL SUBMISSIONS
On his issue one, learned counsel for the Appellant had submitted that it was not in dispute that the Appellant is a trader or business woman and that the Appellant’s husband and the

Respondent are cousins and that on 10/1/2014 the Respondent uttered the slanderous words against the Appellant and contended that on the unchallenged evidence of the Appellant and her witnesses it was proved, contrary to the perverse findings of the Court below that the Appellant was disparaged by way of her trade by the slanderous words uttered the Respondent against her and urged the Court to so hold and to set aside the perverse finding of the Court below to the contrary. Counsel referred toFraser on Libel and Slander 7th Edition 1936, @ p.3 and Ballantine’s Law Dictionary, 3rd Edition, @ p. 321.

It was also submitted that since the Court below had rightly held that the words spoken were defamatory of the Appellant and that the essence of the tort of defamation is to disparage the person in his office or trade, words cannot be defamatory and not intended to disparage the person in his office, profession, calling, trade or business and contended that the finding of the Court below that the slanderous words complained of were not calculated to disparage the Appellant in any office, profession, calling, trade or business carried on by her at the time of

the publication by the Respondent was perverse and urged the Court to hold that the words alleged and proved fell within one of the four heads listed to constitute slander actionable per se having discredited her in her trade or profession.

It was further submitted that the intention of the Respondent as it relates to the riches of the Appellant in her trade or Business was that the imputation of using blood is attributed to her trade or business and thereby disparaged her in her trade or business and contended that in law an action in defamation lies on proof of loss of reputation and not mere proof of loss of money or business interest and urged the Court to hold that the Appellant having been disparaged by the slander by way of her business was in law entitled to recover damages to compensate her for the injury to her reputation and her trading business as a result of the slander by the Respondent. Counsel relied onAdeosun V. Afolabi (2004) All FWLR (Pt.227) 590 @ pp.603–604; Omo-Osagie V. Okutobo (1969) 2 All NLR 175 @ p. 180.

It was also further submitted that the Court below was wrong when it held that the Appellant and her witnesses

labored strenuously to link the slanderous words to her trade or business but that unfortunately the words uttered by the Respondent as pleaded was not referable to her trade or business and contended that on the credible unchallenged evidence of the PW3, PW4 and the Appellant the trade or business carried on by the Appellant at the time of the slander was the sales and supply of Textiles which were adversely affected as a result of the slanderous words by the Respondent and urged the Court to hold that in law the ordinary and natural meaning of words may either be an implied or informed or indirect meaning, and may include any implication or inference. Counsel relied on Supreme Group of Companies Ltd V. Bendel Newspapers Co. Ltd (2001) 14 NWLR. (Pt.734) 597; Newswatch Communication Ltd V Atta (2000) 2 NWLR (Pt. 646) 592.

It was also submitted that the Appellant having brought her claim within one of the four heads of slander actionable per se was in law under no duty to plead and prove special damages, but which she did proved in addition, and contended that the implied or indirect meaning of the words; using blood money, would mean that the Appellant is

using “blood money” to carry on her trade or business and urged the Court to so hold and to set aside the contrary and perverse finding of the Court below and allow the appeal and grant the claims of the Appellant against the Respondent. Counsel referred to Section 4 of the Defamation Law, Cap. 52, Laws of Bendel State 1988.

On his issue two, learned counsel for the Appellant had submitted that it is the law, that for a Clamant to succeed in an action for slander he not prove special damage, once the words were spoken of the Claimant in the way of his office, profession, calling or trade or business and contended that the Court below having correctly held that to say to someone seen to be rich as using blood money particularly in a village setting like Ekpoma was derogatory, was round when it turned round to hold that the Appellant’s claim failed because the slander did not disparage her in the way of her trade and or business and urged the Court to set aside this perverse finding and to find that the Appellant was disparaged by way of her trade and was therefore, entitled to her claims against the Respondent and to so allow the appeal and grant the

claim of general damages by the Appellant against the Respondent. Counsel referred to Section 5 of the Defamation Law, Cap. 52, Law of Bendel State 1988, and relied onUTC. (Nig.) Plc. V. Phillips (2012) 4 NWLR (Pt.1209) 207 @ p. 219; Felix George & Co. Ltd V. Afinotan & Ors. (2014) LPELR.- 22982.

It was also submitted that by virtue of the provision of Section 4 of the Defamation law of Bendel State as applicable in Edo State the Appellant did not need to prove special damages as long as the words are defamatory, even if the words were not spoken of the her in her office, business, profession or calling and contended that the decision of the Court below that though the words were defamatory but since they were not calculated to disparage the Appellant in her office, business or profession she was not entitled to her claim against the Respondent without proof of special damages was reached per-incuriam without taken into cognizance the position of the extant law and urged the Court to allow the appeal and set aside the judgment of the Court below and grant damages against the Respondent in favor of the Appellant for the slander. Counsel relied on

Awolowo V. Kingsway Stores Ltd. (1968) 2 All NLR 217 @ p. 267; Uyo V. Nigerian National Press Ltd (1974) 6 SC103 @ p. 101.

On his issue three, learned counsel for the Appellant had submitted that in law an action for slander will lie without proof of special damage, where the action falls under any one of the followings;(1) Where the words impute a crime for which the plaintiff can be made to suffer physically; (2) Where the words impute to the plaintiff a contagious or infections disease; (3) Where the words are calculated to disparage the plaintiff in any office; profession, calling, trade or business held or carried on by him at the time of publication; (4) Where the words impute adultery or unchastely to a woman or girl and contended that the slanderous words used by the Respondent against the Appellant was meant to and did disparaged the Appellant in her trade or business and urged the Court to hold that in the circumstances of the proved facts the Appellant need not prove special damages in order to succeed and to allow the appeal and set aside the perverse judgment of the Court below. Counsel referred to Section 5 of the Defamation Law Cap. 52 Laws of Bendel State. 1988 applicable to Edo State.

A Digest of the Law of Libel and Slander and of Actions on the case for words Causing Damage by W. Blake. Odgers and Robert Ritson, 6th Edition, @ p. 57.

RESOLUTION OF SOLE ISSUE
My lords, this sole issue, which is the crux of this appeal, is whether or not the Court below was right when having found as fact that the words complained of by the Appellant were defamatory and where published of and concerning her by the Respondent, it went on to hold that the Appellant failed to prove actual damages for the slander and was therefore, not entitled to her claims against the Respondent and thereby dismissing her claim for lacking in merit?

where it is actionable per se without proof of damages See Nsirim V. Nsirim (1990) 3 NWLR (Pt. 1380 285. See also Din V. African Newspapers of Nig. Ltd (1990) 3 NWLR (Pt. 139) 392; Onu V. Agbese (1985) 1 NWLR (Pt. 4) 704; Onyejike V. Anyasor (1992) 1 NWLR (Pt. 218) 437; Iloabuchi V. Phillips (2000) 14 NWLR (Pt. 6860 43.
In law therefore, it is these ingredients that constitute a prima facie case which a Claimant must make out for the Defendant to even be required to lead evidence in his defense. In other words, once or where a Claimant by his pleadings and evidence led at the trial fails to establish any of the above ingredients, which must be shown to co – exist, then no prima facie case of defamation could be said to have been made out against a Defendant by a Claimant and in such circumstances, there would be nothing, really nothing whatsoever, for the Defendant to prove in his defense since a Defendant is in law under no duty to prove anything in his defense if the Claimant has not made out his case at least on a prima facie basis so that the need to confront it by the Defendant may arise. See The Right To A Good Name: Law of Defamation Simplified by Sir Hon Justice Biobele Abraham Georgewill, Published in 2011 by Convince Concepts PH @ pp.63 – 64.

See also generally on proof of prima facie case; Jolayemi & Ors. V. Olaoye & Anor (2004) 12 NWLR (Pt. 887) 322.

(1999) 6 NWLR (Pt. 607) 390.

However, in the application of the reasonable person test, two questions are involved, namely; whether the words complained of are in themselves capable of a defamatory meaning, this is a question of law, and whether the words complained were in fact defamatory, this is a question of fact. So what words could be defamatory in law? A defamatory word is that which tends to bring down the reputation of another or expose him to odium and ridicule in the estimation of reasonable members of the society. It does not necessarily mean that such a word must impute a moral fault against the Claimant. See Akufere V. Sketch Publishing Co. Ltd. (1971) 1 UILR 13 @ p. 15.

The Appellant had pleaded inter alia as follows: That she is businesswoman into the business of wholesale and retail of textiles of different types in Nigeria, and that on 10/1/2014 the Respondent, to the hearing of several persons, used defamatory words on her calling her user of blood money as the source of her riches and which words had greatly disparaged her in her trade and led to adverse down turn in her trade as her customers now shun her. That due to the

slander by the Respondent, her own cousin in law, she was passing through psychological trauma as a result of the stigma of imputation of blood money, which had also caused her loss of earning/profit from her business as people do not want to patronize her any longer, despite being a very hardworking business woman. In support of the above averments the Appellant testified and called four witnesses, all of who testified in line with her pleadings and were thoroughly cross examined by counsel for the Respondent. See pages 3 – 6 of the Record of Appeal.

On his part the Respondent had pleaded inter alia as follows: That he never had any encounter with the Appellant on 10/1/2014 or any other day at all and that he is a cousin to the husband of the Appellant. There is a standing quarrel between him and the husband of the Appellant over the unlawful destruction of his father’s house, which was jointly built by his father and the Appellant’s husband and leading to family issues and quarrels. He never ever alleged that the Appellant was using blood money but was only just being oppressed by the Appellant and he had suffered unlawful Police arrests at their

behest over false allegations against him. In support of the above averments the Respondent testified in his defense in line with her pleadings and was thoroughly cross examined by counsel for the Appellant. See pages 34 – 36 of the Record of Appeal.

Plaintiff…..As the law stands, the test is whether words that do not specifically name the Plaintiff refer to him or not is this; Are the words, such as reasonably in the circumstances, would lead persons who knew the Plaintiff to believe that he was the person referred to?”
In the judgment appealed against, the Court below had upon its consideration of both the pleadings and evidence as led by the parties made very far reaching finding of facts, when it held inter alia thus:
“The defendant avers that he never had any encounter with claimant on 10th day of January, 2014 or any other day at all.” The evidence of the claimant, PW1 and PW4 shows that the defendant on 10th January, 2014, uttered the words complained about. Their evidence was not destroyed by cross-examination. I therefore hold that the claimant has proved that the words complained about were uttered by the defendant… Applying the above principles to the facts of this case what is clear is that the defendant feeling aggrieved that his father’s house was demolished, re-roofed and a part acquired by PW4 and feeling oppressed financially said to PW4 that he was boasting or

proud because his wife has money which he described as blood money. When the claimant came to the scene to confront the defendant with what her husband told her on phone the defendant repeated that the claimant is using blood money. It seems to me that to say to someone seen to be rich as using blood money particularly in a village setting as Uwenkodigbon, Uhiele, Ekpoma is derogatory. I therefore hold that the word complained of in their ordinary meaning is defamatory of the claimant in the circumstances in which they were spoken… In the instant case PW1 and PW4 claimed that they were present when the defendant uttered the words complained of and concerning the claimant. In the circumstances, I hold that the claimant has proved that the offending words were uttered to third parties.” See pages 102- 105 of the Record of Appeal.
Now, the Appellant’s claim is one founded on slander by reason of the words uttered of and concerning her by the Respondent, which words the Court below had found as fact were not only defamatory and uttered by the Respondent of the Appellant but were also published to the hearing of others, some of whom were

called and testified as witnesses for the Appellant. Having taking time to consider the evidence led by the Appellant and her witnesses in line with her pleadings, it is clear, and as found rightly by the Court below that despite the strident denial by the Respondent, the word uttered and published of the Appellant were highly defamatory words and clearly referred to the Appellant. See UBN Ltd. V. Oredien (1992) 6 NWLR (Pt. 247) 355.

The only grouse of the Appellant, it would appear, in the light of the positive finding of facts in her favor of the most crucial three essential elements of the tort of defamation, is the subsequent and ultimate finding of the Court below that the Appellant’s claim being one founded on slander is generally not actionable per se without proof of damages and that having not brought her claim within the four exceptions wherein slander is actionable per se without proof of damages. It also held that the Appellant failed to prove any actual damages suffered by her as a result of the slanderous words uttered against her by the Respondent, and therefore, her claims founded on slander, without any actual damages, lacked merit.

It then further held inter alia thus:
“What is now left to be determined is the issue of damages. The cases in which an action for slander will lie without proof of special damage fall under four heads… Unless the person defamed can bring his case under one of the above four heads, he can only succeed on proof of special damage arising as the direct and natural and reasonable result of the publication of the words… The slanderous words complained of is that the claimant is using blood money. These words do not impute a crime for which the claimant can be made to suffer physically by way of punishment. They do not also impute to the claimant a contagious or infectious disease. The words do not impute adultery or unchastity on the part of the claimant. The claimant and her witnesses laboured strenuously to link the slanderous words to the claimant’s trade or business. Unfortunately the statement of the defendant as pleaded by the claimant is not referable to her trade or business… I therefore hold that slanderous words complained of were not calculated to disparage the plaintiff in any office, profession, calling, trade or

business carried on by the claimant at the time of the publication by the defendant… Since the claimant has not brought her case under one of the above four heads. In other to succeed she must prove actual special damage arising as the direct and natural and reasonable result of the publication of the words. The evidence is that the slanderous words were spoken at Uwenkodigbon, Uhiele, Ekpoma in the presence of the claimant’s husband, PW1, a family friend and other people including those who were working in the claimant’s husband’s house at Uwenkodigbon, Uhiele. The evidence is that the claimant’s business of selling clothes at Auchi/Ekpoma Express Road, Ekpoma and the market at Irrua were adversely affected thereby. I am unable to hold that alleged fall of the claimant’s business at Ekpoma and Irrua is a direct consequence of the slanderous words uttered by the defendant at Uwenkodigbon. I therefore hold that the claimant has failed to prove that she suffered actual and direct special damage as a result of the said slander…”See pages 105 – 106 of the Record of Appeal.
So, was the claim of the Appellant one not founded on any of the

four exceptional cases of slander wherein proof of actual damages is not needed and damages is presumed by law? Once a claim of slander is founded on any of the following grounds, damages are presumed and therefore, need not be pleaded and proved in order to succeed in such an action for damages for defamation by way of slander, namely:
1. Imputation of crime
2. Imputation of contagious and infectious disease
3. Imputation of unchastity or adultery against a woman
4. Imputation affecting professional business reputation
See Olaniyi V. Elero (2006) LPELR – 5237 (CA). See also Egbe V. Adefarasin (1987) I NWLR (Pt. 47) 1 @ p. 20.

Much, if not all of the pieces of evidence led by the Appellant and her four witnesses were cogent, credible as well as formidable and were believed by the Court below. The Appellant did not in any material particulars controvert these pieces of evidence by any credible evince of his own. Now, the Court below was under a duty to properly evaluate and appraise the entirety of the evidence led by the parties and to arrive at correct finding flowing therefrom. Thus, a failure to do so would be fatal to

the judgment of the Court below, more so where such failure results into a perverse finding. SeeOgbe V. Asade (2009) LPELR 2275 – (SC).
I bear in mind and thus not unmindful of the well settled position of the law that the primary duty of evaluating, reviewing and ascribing probative value and relative weight to the evidence as led by the parties is that of the trial Court. It is the indisputable primary duty of the Court below not only to merely review or restate the evidence led before it by the Parties but to critically appraise and evaluate it in the light of the issues of facts as disclosed and joined by the parties and in the course of doing so determine which evidence is relevant or admissible or credible or incredible and which weight to attach to the evidence.
Consequently, once a trial Court had carried out this primary duty correctly and come to a right conclusion and sound decision in its judgment that is the end of the matter as no appellate Court worth its name and honor would interfere where the conclusion reached by the trial Court was right and its decision sound on the evidence as led before it. See TSA Industries Ltd. V. Kema Investments Ltd.

(2006) 2 NWLR (Pt. 964) 300. See also Agbomeji V. Bakare (1998) 9 NWLR (Pt. 564) 1; Okada Airlines Ltd. V. FAAN (2015) 1 NWLR (Pt. 1439) 1@ p. 23.
It is thus the law that it is only when a trial Court had not carried out its primary duty correctly or shirked from its responsibility to do so or had reached wrong conclusions not flowing from the admitted evidence before it or has misapplied the relevant principles of law to the established facts before it and had in all these instances occasioned a miscarriage of justice that an appellate Court will be duty bound to interfere to re-evaluate the evidence on the printed record, particularly in circumstances not involving the credibility of witnesses to make proper findings as justified by the evidence on the printed record. See Obajimi V. Adeobi(2008) 3 NWLR (Pt. 1075) 1 @ p. 19. See also Olonade V. Sowemimo (2014) 9 SCM 106 @p. 121; CSS Bookshop Ltd. V. The Regd. Trustees Muslim Community in Rivers State(2006) 4 SCM 310; Mogaji V. Odofin (1978) 4 SC 91; Mini Lodge Ltd. V. Ngei (2010) All FWLR (Pt. 506) 1806
An appellate Court would therefore, readily interfere to re-evaluate the

evidence in the printed record if is shown that the findings or decisions of the trial Court was perverse in that the conclusion drawn from the proved facts does not flow there from or runs contrary to such proved facts. However, it is not the law that a judgment of a Court is bound to be reversed on account of every error found in it but rather the law is that an error that will lead to a reversal of the judgment of a Court must be one that is substantial and had caused a miscarriage of justice. See Oladele V. Aromolaran II (1996) 6 NWLR (Pt. 453) 180. See also NBC Ltd. V. Olarenwaju (2007) 5 NWLR (Pt. 1027) 255; Okada Airlines Ltd. V. FAAN (Supra) @p.22; Owor V. Christopher (2010) All FWLR (Pt. 511) 962; Sogbamu V. Odunaiya (2013) AII FWLR (Pt. 700) 1247. Now, from the pleadings and the evidence led by both parties, it was not in any dispute at all that the Appellant is a successful business woman who sells textile materials. What then was the source and use of the blood money of not the business of the Appellant of selling textile materials from which the Respondent’s imputation clearly means she uses blood money to be successful in her business and

even if other are afraid or scared of telling her so to her face he was able and bold enough to bell the cat to tell her so to her face and she cannot do him anything at all. It seems clear to me that to allege that a business person, here a trader, is using blood money in her business and is successful because of blood money is a direct disparagement of such a person by way of her trade and or business.
My lords, I find, contrary to the very cavalier manner this very grave issue was treated by the Court below, that the imputation amounted clearly to words spoken of the Appellant which are reasonably likely to and had indeed injured her in her trade and or business as a trader as testified to by PW2, Madam Juliet Obi, and PW4, the Appellant’s husband, thus in law clearly amounts to slander actionable per se without any need to allege and prove actual or special damages as erroneously held by the Court below. See Section 5 of the Defamation Law, Cap. 52, Laws of Bendel State 1988, as applicable to Edo State, which provides thus:
”In an action for slander in respect of words calculated to disparage the plaintiff in any office, profession,

callings, trade, or business held or carried on by him at the time of the publication it shall not be necessary to allege or prove special damage whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business.”
It is the law that a claim in defamation does not succeed merely on account of loss of money or business or pecuniary interest if there is no loss of esteem. The Appellant had even gone further to prove actual losses and damages to her business through the unchallenged evidence of PW2, PW4 and herself. So, what else did the Court below wants her to prove? Nothing more or else I can find as imposed on her by law in order for her to succeed in her claims against the Respondent! See Adeosun V. Afolabi (2004) All FWLR (Pt.227)590 @ pp. 603-604. See also Omo-Osagie V. Okutubo (1969) 2 All NLR 175 @ p. 180; Supreme Group of Companies Ltd V. Bendel Newspapers Co. Ltd (2001) 14 NWLR (Pt. 734) 597; Newswatch Communication Ltd V Atta (2000) 2 NWLR (Pt. 646) 592.
My lords, I have already held firmly above that the decision of the Court below to dismiss the claims of the Appellant as lacking in

merit as not subsumed under one of the four circumstances in which slander is actionable per se was perverse, I find further that not only was the Appellant claim squarely under imputation against her trade and or business and thus actionable per se, the Appellant also proved by credible evidence loss of patronage to her trade by reason of the slanderous words uttered by the Respondent of and concerning her and disparaging her by way of her trade and or business of using blood money in her trade and or business.
On above both grounds, the Appellant proved her case squarely and fairly against the Respondent, who as the Court below even found has no iota of any defense to the claims of the Appellant against him. I find the dismissal of the Appellant’s claim and the award of cost against her in favor of the Respondent, in the proved circumstances of this case, as very unfair and amounting clearly to a travesty of justice. I shall say no more on this!
In Alelu V. Eze (2015) 13 NWLR (Pt. 1475)74 @ p. 116, it was opined inter alia thus:
“A trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive

into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the context of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation…It is trite that it is the primary responsibility of a trial Court to evaluate the evidence presented by the parties before it, ascribe probative value to the evidence and then come up with a decision. Evaluation of evidence entails the assessment of evidence so as to give value and quality to it. It involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other…”
See alsoJegede V. Oluwasesan [2013] All FWLR (Pt. 671) 1484 @ p. 1487; Oke V. Nwizi [2014] All FWLR (Pt. 757) 695 @ p.707; Akintola V. Balogun (2000) 1 NWLR (Pt. 642) 533.
My lords, the Court below having failed in its primary duty to properly evaluate the evidence of the parties and arrive at correct and just

findings of facts and having further failed to assess damages due to the Appellant for the slanderous words uttered against her by way of her trade and business by the Respondent, I shall and do hereby invoke the powers of this Court under Section 16 of the Court of Appeal Act 2004 here and now to assess damages due payable to the Appellant by the Respondent having successfully proved her claims against the Respondent as required of her by law.
I take into account the extend of publication and circulation in places including the market place of this false and deadly slander against the Appellant in her status as a successful trader in textile materials and a fair recompense for the Appellant’s loss of patronage as vividly described by the PW2 and PW4 and taking all the circumstances of this case into consideration, I assess damages suffered by the Appellant, as a direct result of the wrongful tortious act of the Respondent leading to a fall in her business and trade, at the sum of N5,0000,000. 00 only to assuage her losses and damages to her reputation in the line of her trade and or business. SeeAwolowo V. Kingsway stores Ltd. (1968) 2 All NLR 217 @

267. See also Uyo V Nigerian National Press Ltd (1974) 6 SC103 @ p. 101.In the circumstances therefore, I hereby resolve issues one, two and three in favor of the Appellant against the Respondent and hold firmly that the Court below was gravely in error when it held that the Appellant failed to prove her claims against the Respondent.
On the whole therefore, I hold that this Appeal has great merit and ought to be allowed. Consequently, I hereby so allow it.

In the result, the judgment of the High Court of Edo State, Coram: D. I. Okungbowa J., in Suit No. HEK/6/2014: Bleesing Iseramenya V. Saturday Morfi Ofodion, delivered on 24/10/2016, wherein the claims of the Appellant as Claimant for damages for defamation against the Respondent as Defendant were dismissed, is hereby set aside.

In its stead, Judgment is hereby entered in favor of the Appellant against the Respondent on her claims in Suit No. HEK/6/2014: Blessing Iseramenya V. Saturday Morfi Ofodion and it is hereby ordered as follows:
1. The sum of N5,000,000.00 only as General Damages against the Respondent in favor of the Appellant being damages suffered from the slanderous

words used by the Respondent against the Appellant.
2. The Respondent shall within 30 days from the date of delivery of this judgment submit to the Appellant a written apology and a sworn declaration of retraction of the defamatory words at the Registry of the Court below.
3. The Respondent shall within 30 days of the date of delivery of this judgment ring a bell and announce the retraction of the Defamatory words uttered by him against the Appellant in Uhiele and Uwenlenobo in Ekpoma.
4. There shall be cost of N200,000.00 in favor of the Appellant against the Respondent.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read in advance the judgment just delivered by my learned brother, BIOBELE ABRAHAM GEORGEWILL, JCA. I agree entirely with the decision of my learned brother.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: My learned brother, the Honourable Justice BIOBELE ABRAHAM GEORGEWILL, JCA, had resolved issues for determination in the judgment, draft of which I have had the privilege to read, in favour of the Appellant herein.

I agree with my learned brother that Appellant was able to prove her claim against the Respondent in the lower

Court. I found that the appeal has merit and deserves to be allowed.

I too allow the appeal and abide with the consequential orders made in the lead judgment.
The appeal succeeds.

Appearances:

Dr. M. O. Oseghale, with him, K. Agbonghale Esq. For Appellant(s)

The Respondent, though served with hearing notice on 17/11/2020, did not participate at the hearing of this appeal For Respondent(s)