MAZI AUGUSTINE AKAHIE v. SISTER MARY OCHULOR (2015)

MAZI AUGUSTINE AKAHIE v. SISTER MARY OCHULOR

(2015)LCN/7816(CA)

In The Court of Appeal of Nigeria

On Monday, the 16th day of March, 2015

CA/OW/290/2014

RATIO

TORT: TORT OF DEFAMATION; THE DIFFERENCE AND SIMILARITY BETWEEN LIBEL AND SLANDER AND THE PROOF OF DEFAMATION

The law relating to proof of defamation is well settled and defamation is usually considered in the con of slander or libel and I do not think a given complaint can constitute, both slander and libel, at the same time. It is slander, when the defamatory words complained of are communicated in transient form e.g. orally, and libel, when the defamatory words are reduced into permanent form, like in writing. (See Asaa Vs Ojah (2015) LPELR 24278 CA – a decision of this Court delivered on 13/1/15).
But one thing is common to both, that is, that the defamatory words must have been published to a 3rd party, who, by law, was not entitled or privileged to hear/receive the offending words/writing, the same being damaging to the reputation of the Plaintiff. See Daura Vs. Danhauwa (2011) ALL FWLR (pt.558) 991; Mamman vs. Salaudeen (2006) ALL FWLR (pt.298) 469; Independent Newspapers Ltd. Vs. Idiong (2012) ALL FWLR (pt.647) 677; See also Vanguard Media Ltd. Vs. Olafisoye (2012) ALL FWLR (pt.634) 97.
In that case of Daura Vs. Danhauwa (supra) another distinguishing element was drawn between slander and libel, that whereas the latter (libel) is actionable without the need to prove actual damage (actionable per se), the former (slander), except in certain cases, is only actionable on proof of particular damage. That is, it is not actionable per se. My Lord Okoro JCA (as he then was) had held in that case as follows:
“A defamatory statement may be libel or slander. It is libel if it is published in a permanent form i.e. in writing, print, photograph, carving, statute or carton. Slander on the other hand is defamatory statement which is published in a transient form, i.e. by words spoken or gestures. Libel is always actionable without the need to prove actual damage, i.e. that is actionable per se, whereas in slander, except in certain cases, it is only actionable on proof of particular damage, i.e. it is not actionable per se …”

In any case of defamation, the Plaintiff must prove three things which include the following:
(1) That the words complained of were defamatory
(2) That the words referred to him
(3) That the words were published to at least one person other than the Plaintiff
See also Emmanuel Bekee & Ors Vs. Friday Ebom Bekee (2012) LPELR – 21270 (CA).

Of course, it should be appreciated that proof of libel would be easier, upon production of the published offensive document by the Plaintiff for inspection and assessment by the Court. That cannot be said of slander which requires the pleading and capturing of the exact words or gestures complained of, and leading evidence to establish the same. And the Plaintiff must be present, when the alleged slanderous words are spoken, so that he does not carry it as “hear-say” evidence. See the case of Emmanuel Bekee & Ors Vs. Friday Ebom Bekee (2012) LPELR – 21270 (CA); Asaa Vs Ojah (2015) LPELR – 24278
Of course, it should also be expected that the Plaintiff has a duty to state the language of communication of the offensive words and the translation of the same in the language of the Court, if the original language of the defamation is different from the language of the Court. In the case of Oruwari Vs. Osler (2012) LPELR – 19764 (SC), my Lord, Chukwuma – Eneh JSC, said:
“Where the libel or slander was published in a foreign language, it must be set out in the statement of claim 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 use.” I think the need to state the language of the publication of the defamatory words becomes imperative where the Defendant denied making the statement, or saying any such thing. The Plaintiff then has a duty to clearly state and prove the medium of communication of the alleged defamatory words, and the exact words used. per. ITA GEORGE MBABA, J.C.A.

EVIDENCE: PROOF OF PUBLICATION OF SLANDER; WHETHER THE PLAINTIFF SHOULD BE PRESENT WHEN THE ALLEGED SLANDEROUS STATEMENT IS MADE

I have already stated that, in proving publication of slander, the plaintiff should be present when the alleged slanderous statement is made, so that he can present it to the Court as what he heard, himself, before a 3rd party who also heard it (to whom it was published) will have to confirm the speaking or making of the defamatory statement which must be in the exact words used by the plaintiff. See the case of Emmanuel Bekee & Ors Vs Friday Ebom Bekee (2012) LPELR 21270 (CA); and Asaa Vs Ojah (2015) LPELR – 24278 CA where it was held:
“And he (plaintiff) must be present when the alleged slanderous words are spoken, so that he does not carry it as ‘hear-say’ evidence… It should also be expected that the plaintiff has a duty to state the language of communication of the offensive words and the translation of the same if the original language of the defamatory words was different from the English language. See Oruwari Vs Osler (2012) LPELR – 19764 (SC).” per. ITA GEORGE MBABA, J.C.A.

EVIDENCE: BURDEN OF PROOF; WHETHER IT IS THE PERSON THAT ALLEGES THAT HAS THE RESPONSIBILITY TO PROVE HIS ALLEGATION

I think it was a grave error for the trial Court to have shifted the burden of proof to the Appellant (when the Court alleged that defence witness, DW2, supported the claim of Respondent) thereby implying that the Appellant needed to disprove the claim of the alleged slander!
That cannot be, as the law is that the person that alleges has the responsibility to prove his allegation. See Section 132 and 133 of the Evidence Act, 2011, which say-
(1) The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. See also the case of Orji vs. PDP (2009) 14 NWLR (pt.1161) 310 at 331; The State Vs. Collins Ojo Aibangbee (2008) 8 NWLR (pt.1037) 517, where the Supreme held:
“The role of a trial Court is to hear evidence, to evaluate that evidence, to believe witnesses who testified and to decide the merits of the case based on the findings. When a trial Court acts on speculations rather than on the evidence then it has abandoned its proper role. No trial Court has a right to draw conclusion of fact outside the available evidence. Such conclusion will be regarded as perverse” (Per Oputa JSC).
My Lord Eso JSC, in that case, also held:
“A judge of first instance decides on evidence led by the parties to a case before him. He does not, with respect, concoct evidence. He does not imagine evidence. He interprets a situation as per the cold facts before him, not as per what he would have preferred the facts to be.” per. ITA GEORGE MBABA, J.C.A.

TORT: THE TORT OF DEFAMATION; THE INGREDIENT OF THE TORT OF DEFAMATION

The tort of defamation generally consists of the following elements: (1) false statement of fact; (2) capable of a defamatory meaning or by reason of an innuendo; (3) of and concerning another living person; (4) publication to a third party; (5) some degree of fault on the part of the person making the statement; and (6) harm to the reputation of the person defamed. See the case of SKYE BANK PLC & ANOR vs. CHIEF MOSES BOLANLE AKINPELU (2010) 9 NWLR (PT.1198) 179. See also the case of ALHAJI ABBA ASHIEKH VS. ALHAJI KAKA MALLAM YALE (2010) LPELR – 3811 (CA). per. FREDERICK O. OHO, J.C.A.

JUSTICES

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDERICK O. OHO Justice of The Court of Appeal of Nigeria

Between

MAZI AUGUSTINE AKAHIE Appellant(s)

AND

SISTER MARY OCHULOR Respondent(s)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of Abia State High Court in Suit No. Hu/9/2012, delivered by Hon. Justice S.A. Nwakanma on 18/2/14 wherein the trial Court found the Appellant liable for defamation and ordered the Appellant to pay N200,000 (Two Hundred Thousand Naira) to the Respondent in damages and to apologise to her (Respondent), using the community means of disseminating information.

Appellant was the defendant at the Court below. The Plaintiff (now Respondent) had filed the Suit on 25/1/2012 claiming as follows, in a very terse Writ of Summons:
“WHEREAS the Claimant Claim (sic) against the Defendant
(1) An apology from two National Newspapers and one Local Radio Station in Abia State, two million naira only for defaming the Claimant by spreading false rumor, “That the Claimant Mary Ochulor stripped herself naked and threw herself on the ground on the 14th day of September, 2011.”

The facts of the case, in brief, says that the Appellant defamed the Respondent, a Vice Principal of a Girls’ Secondary School in Umuahia, when the Appellant’s Kinsmen destroyed the graves of the Respondent’s Late Father and that of her younger brother, Udochukwu Ochulor, on 14/9/2011; that Appellant started spreading rumours within the vicinity that on the aforesaid date, the Respondent threw herself naked and removed her wrapper; that this rumour was heard by a lot of people including one Brother Emeka Nwachukwu (a member of the Respondent’s church); that also when the Respondent’s younger brother John Ochulor instituted an action (HU/148/2011) against the people who destroyed the grave of his late father, the Appellant also made the same libelous statement in his statement on oath, dated 20th October 2011, paragraph 11 thereof, thereby embarrassing and humiliating the Respondent.

Appellant and the Respondent are from the same Community, Amizi Olokoro in Umuahia South Local Government Area of Abia State and are neighbours. Appellant said that sometime in September 2011, the Respondent and her brother John tried to beautify the graves of their late father and brother in front of their house, which graves were near the road leading to the compound of the Appellant; that the cement blocks used to extend the construction blocked the road, preventing driving into Appellant’s compound and those of his kinsmen; that every appeal, protest and effort of the Appellant’s Kinsmen to get the Respondent and her brother to remove the obstruction were rebuffed, including the order by Umuahia Capital Development Authority (UCDA); that finally the UCDA, on 24/6/2011, came to remove the offensive projection, which blocked the only entrance to their compound; that while the workers of the UCDA were knocking out the offensive construction made by the Respondent and her brother, the Respondent removed the cloth (wrapper) she had on her and exposed her nakedness and threw herself into the work, all in the protest to force the UCDA workers to stop what they were doing; that because the UCDA workers could not withstand the obscene nakedness of an adult woman staring in their faces they had to abandon the work half way; Appellant said though he was not at the scene, some members of their community also witnessed the shameful incident; that they had to arrange to remove the debris of the demolition, done by the UCDA workers, when the latter failed to come back to clear same; that that was on 14/9/11, and thereby clearing the road for use; that the Respondent and her brother then sued Appellant’s kinsmen in Suit No. HU/148/2011 and join the UCDA as the 5th Defendant, claiming for malicious damage, trespass and injunction. The said Suit No. HU/148/2011, Appellant said failed and was non-suited, as the UCDA General Manager and staff gave evidence to own up the demolition of the offensive structure.

Appellant then showed that the claim of the Respondent in the Suit No. HU/9/2012 was founded on the witness statement, filed by the Defendants in HU/148/2011, wherein they deposed to the fact that the Respondent, infact, exposed her nakedness as a way of protest against UCDA workers on the day of demolition of the offensive structure built by the Respondent in this appeal and her brother, John.

After hearing the case, HU/9/12, the learned trial judge (who also heard the Suit No. HU/148/2011 and non-suited the case) held for the Respondent, as follows:
“It is obvious from the above evidence, that the claimant was not naked during the event under reference. The mere fact that an occasion is privileged does not make every publication made a privileged one. In the instant case, the Defendant went beyond facts that are strictly necessary. There was absolutely no need for the defendant to use the offending words particularly when the main subject matter was the issue as to who destroyed the structure of the Claimant in suit No HU/148/2011. It is apparent that malice was shown in the offending words and where, and where malice is shown, it will rob the publication of any element of good faith and one not clothed with the regalia of fair comments in the public interest.
The plea of justification by the Defence cannot be sustained due to the evidence led by DW2. The Defendant under Cross-examination admitted that the claimant was not naked but had a semblance of clothing. ‘Naked’ is defined in Oxford Advance Learner’s Dictionary as “not wearing any clothes … I therefore order that the Defendant uses the Community means of dissemination of information to apologize to the claimant. The Defendant is to pay the sum of N200,000. (Two Hundred Thousand Naira) for defaming the Claimant.” See pages 99-100 of the Records of Appeal.

That is the judgment Appellant appealed against, as per his Notice of Appeal on pages 101 to 106 of the Records, disclosing 5 grounds of Appeal. Appellant filed his brief of argument on 25/9/2014 and distilled 3 issues for the determination of the appeal, namely:
(1) Whether the statement of the Appellant made in a witness Deposition in a Court proceedings in the suit NO. HU/148/2011 was actionable to be liable for malice and defamation as held by the trial Court? (Ground 1 and 4)
(2) Whether the trial Court was right to hold that the offending words were published to a third party? Ground 2
(3) Whether the trial Court having not made a finding of fact on the date the incident of cause of action occurred (sic) not a fundamental error in the Judgment that deprecates the holding of the court that the evidence of the defence corroborated the evidence of the claimant? (Ground 3).

Appellant did not formulate any issue on ground 5 of the appeal, which quarreled that the judgment was not delivered within 90 days from the date of the final address by Counsel. Of course, that ground is deemed to have been abandoned by the Appellant and is hereby struck out.

The Respondent filed her brief on 29/10/14 and formulated two issues for determination, as follows:
“(1) Whether the trial judge was right in holding that the respondent proved her case for defamation and whether the defence of qualified privilege avail the appellant.
(2) Whether by the (sic) virtue of the standing of the respondent the cost of two hundred thousand (sic) awarded against Appellant was sufficient.”

Appellant filed a Reply brief on 24/11/14 to react to the argument of Respondent on issue of qualified privilege, saying he was claiming absolute privilege which is total and unconditional, not qualified privilege which is a conditional defence.

Arguing the appeal, Appellant’s Counsel, A. Ogbonna Esq, submitted on issue one, that the trial Court erred in law when he held that “the claim resulted from a statement on Oath in a Suit No.HU/148/2011 in which the Defendant in paragraph 11” made the alleged defamatory statement complained of. He referred us to pages 94, 95, 96 and 99 of the Records of Appeal. He submitted that the trial Court misconstrued the law, and the
facts of absolute privilege inherent in the statement on Oath in the said Suit NO.HU/148/2011; that the Court rather relied on the case of UBA PLC Vs Davis (2011) 11 NWLR (pt.1259) 597 which he said is on qualified privilege. He submitted that in absolute privilege the issue of malice is irrelevant and relied on the book “THE NIGERIA LAW OF TORTS” 1982 page 165 by Gilbert Kodilinye.

Counsel said that the Respondent never established the publication of the said defamatory words; that she could not rely on Suit No.HU/148/2011 because, by law, any statement made in the course of proceeding in Court, either oral or written, enjoys absolute privilege and cannot be proceeded against in Court. He relied on Seaman Vs Netherclift (1876) 2 CPD 53 at 56 and 57; Poley Vs Asfour (1970) NWLR 74; Adene Vs Oyeyemi (1969) NWLR 37; O’Connor Vs Waldron (1935) AC 76 (P.C.) at 81; Royal Aquarium Vs Parkinson (1892)1QB at 541.

Counsel also relied on the book on Torts by Gilbert Kodilinye pages 161-162.

Counsel further submitted that even if the averment of the Appellant in the Suit No.HU/148/2011, were to be taken as constituting qualified privilege (which he did not concede), the same, he said, was not actionable against him, as Appellant had a duty to make the statement as a witness in the said Suit No.HU/148/2011, just as the trial Court found on page 98 of the Records. Counsel also relied on the case of FBN PLC vs. Aboko (2007) 1 NWLR (Pt.1014) 129 at 145-146.

Appellant equally argued that the trial Court was wrong to hold that the alleged defamatory statement was not true (pages 98-99 of the Records) just because it prompted the witness DW2 to say that the Respondent was not stark naked, as she still had a semblance of clothing on – an inner pant and a transparent under-wear! He argued that the Court did not even resolve the issue of the date of the alleged event as evidence disclosed two separate dates of events – one on 24/6/11 and the other on 14/9/11; that whereas the statement of defence (in HU/148/2011) and evidence of the Defendant said the incident occurred on 24/6/2011 – when Respondent stripped herself naked, the Respondent brought the action (this Suit) based on an incident said to have occurred on 14/9/14, which the Appellant did not witness and made no statement about! Thus, on the 14/9/11 which the Respondent based her claim, the persons who were said to have witnessed the act of stripping by the Respondent (UCDA workers) were not present! He relied on the case of Nwangwa Vs Ubani (2002) Vol. 1 SMC.

On issue 2, whether the trial Court was right to hold that alleged offending words had been published, Counsel answered in the negative. He submitted that it is trite law that for a plaintiff in an action for defamation to succeed, he must prove publication of the defamatory words to a 3rd party by the defendant; that any subsequent publication of the alleged defamatory statement is actionable against the person who published it. He relied on the case of Sky Bank Plc Vs Bolanle (2010) 3 KLR (pt.278) 979; Okotch Vs Olumese (1967) FNLR 174; Dickson Vs Enwere (1967) FNLR 163; Nsirum Vs Nsirim (1990) NWLR (pt.138) 285 at 298.

He submitted again, that the trial Court was wrong to rely on the witness statement on oath filed in Suit No.HU/148/2011 as proof of publication of the alleged defamatory statement. See page 54 of the Records. Counsel also referred us to the evidence of Respondent’s witness, CW2 (one Emeka Nwachukwu) on page 59 of the Records to say that the said witness had said he overheard someone, whom he later took to be Appellant, telling a group of people the alleged story; that the said Emeka Nwachukwu did not say that Appellant told him anything, directly, neither was he part of the group of people the person (or Appellant) was addressing! Counsel relied on the case of Huth Vs Huth (1915) 3 KB 32 to say, that such cannot amount to publication. He relied on the case of Onu Vs Agbeze (1985) 1 NWLR (pt.4)704 at 711; Dickson Vs Enwere (Supra) and Nsirim Vs Nsirim (Supra) to say that where a plaintiff fails to prove publication of a libelous matter he has no cause of action.

Counsel also argued that the evidence of the PW2, Emeka Nwachukwu, was self contradictory; that in paragraph 2 of his statement on Oath (page 12 of the Records) he stated that it was on 20/9/11, that he overheard the Appellant tell the said group of people that Respondent stripped herself naked. But in his evidence in Court (pages 59 and 60 of the Records) he stated that it was on 14/9/11 that he heard Appellant make this statement “Nka bu Mary Onye Ara” (Look at Mary, the mad person). Counsel said the Court cannot pick and choose between the different versions Adun Vs Osunde (2003) 6 NWLR (pt.847) 643.

Counsel also submitted that the trial Court was wrong to entertain and grant the Claim, even when the Respondent failed to plead the exact words used by the Appellant to spread the alleged rumour, and the language used by the Appellant. He relied on the case of Okpara Vs Umeh (1997) 7 NWLR (pt.511) as at 105.

Counsel added that the Respondent could not succeed in claiming damages in the absence any proof of damages and how the alleged slanderous words affected her as a professional teacher, especially as the words did not import any crime, to make it actionable, per se. He relied on Stephen Vs Atuegbehumi (1971) 2 UILR 101 AT 102; Onofioghofia Vs Okitipai (1974) ECSLR 465.

On issue 3, on the failure by the trial Court to make findings as to when (date), in fact, the alleged defamation was made, Counsel submitted that, that was a fundamental error. He called our attention to the findings of the trial Court on page 98 of the Records and said, that the trial Court was wrong to imply that the evidence by the DW2 (defence) supported that of the Respondent (plaintiff).

Counsel urged us to resolve the issues for the Appellant and allow the appeal.

The Response by, Eluwa Eze Esq, Counsel for the Respondent, was scanty on their issue one, he relied on Sir Perey H. Winfield (without stating particulars) as to the meaning of defamation – as a statement which tends to lower a person in the estimation of the right thinking members of the society or, which tends to make them shun or avoid the person. He relied on the case of Ajaybe Vs Odudu (1996) NWLR (pt.157) 384 as to the conditions upon which a claim for defamation can succeed. Counsel asserted that the statement credited to the Appellant satisfied those conditions and relied on the evidence by PW2 Emeka Nwachukwu and as CW3 (paragraph 7 and 8 of record of proceedings) HU/148/2011.

Counsel asserted that the defamatory words were not only made but were also published to more than one person i.e. Emeka Nwachukwu, who heard the same; that the defamation was proved and the trial Court was right in its holding. He relied on the case of UBA PLC Vs Daris (2011)11 NWLR (pt.1259) to say that the defence of qualified privilege and justification failed. He urged us to dismiss the appeal.

RESOLUTION OF THE ISSUES
I think the 1st two issues for determination by the Appellant should be taken together, but reframed as follows, that is, whether the trial Court was right to hold that a witness deposition made by the Appellant in another Suit (HU/148/2011) constituted defamation, and whether the words complained about by Respondent were defamatory and actionable in law.

I should start by observing that the Respondent did not come out clear in her pleading as to the type of defamation she was complaining about – whether slander or libel. Whereas, the complaint she raised in her terse writ of summons (page 1 of the Records) alleged the Appellant defamed her by spreading false rumor “That the claimant, Mary Ochulor stripped herself naked and threw herself on the ground on the 14th day of September 2011” (which sounds like complaint against slander) in her statement of claim, paragraphs 9 to 11, the Respondent stated, as follows:
“(9)The claimant avers that she first petitioned the above named persons to the Police ie. State Criminal Investigation Department (Umuagwu) Umuahia; therein after our family instituted a civil action against them vide HU/148/2011 John Ochulor Vs Onyebuchi Okezie.
(10)The Claimant avers that to her greatest surprise the Defendant who was not at the Scene and who was not a party to the Crime started spreading false rumour around Amizi Community and outside the Community that on the day of the incident ie. The 14th day of September 2011 that when the culprits demolished my father’s grave, the Claimant stripped herself naked and was shouting like a mad woman.
(11)The Claimant avers that not been (sic) enough the Defendant in his statement on oath as a witness in the (sic) to the above mentioned Suit repeated same in paragraph 11, he stated as follows, that during the time the UCDA personnel were removing the said obstruction on the Umualilika road, Mary Ochulor stripped herself naked and threw herself on the ground, a copy of the said statement on oath made by the Defendant on 20th day of October, 2011 in HU/148/2011 is hereby pleaded and shall be relied upon during the trial.” (See pages 4 and 5 of the Records of Appeal).

Of course, the pleading, particularly, paragraph 11, appears to be in the nature of libel, not slander. But it was the same statement which the Respondent pleaded as slander that she also asserted as libel!

I think the need to state the language of the publication of the defamatory words becomes imperative where the Defendant denied making the statement, or saying any such thing. The Plaintiff then has a duty to clearly state and prove the medium of communication of the alleged defamatory words, and the exact words used.

In this case, the Respondent had pleaded in paragraph 11 of the statement of claim that the Appellant said:
“That during the time the UCDA personnel were removing the said obstruction on the Umualilika road, Mary Ochulor stripped herself naked and threw herself on the ground”; that the said alleged offending statement were carried in the statement on oath made by the Appellant as a witness in another Suit HU/148/2011.”

I have stated that the Respondent did not clearly state the offending words complained of, as what is carried in the Writ of Summons, merely, carried what she called a rumour – “that the Claimant, Mary Ochulor stripped herself naked and threw herself on the ground on 14th day of September, 2011”. The Respondent did not state that she heard the ‘rumour’ by herself from the Appellant. She did not state the place where the ‘rumour’ was carried, and in what language, and who else heard the rumour – as a 3rd party. Mr Emeka Nwachukwu, (CW2), whom the Respondent produced as a witness, had told the Court on page 59 of the Records of Appeal, as follows:
“It is true that I am the one who gave her (Respondent) the information she used to file this suit. I gave her the information on 14th September, 2011. I went to ‘Ama’ where there is a Filling Station to buy fuel, I saw a man who is a block moulder who was carrying the rim of his block moulder. The man was telling those who were around after Mary drove past on an Okada this “Nka bu Mary Onye Ara (Look at Mary the mad woman)” when I heard it I was shocked. The man repeated it the second time.”

That is the piece of information the said Emeka Nwachukwu gave to the Respondent on 14/9/11. He did not state the date he heard the alleged words himself and did not give the name of the person who said the words- “Nka bu Mary Onye Ara (Look at Mary, the mad woman)”

The Respondent, herself, testifying as CW1, under cross examination said:
“I didn’t pick up the rumour or defamatory comment from the statement on oath of the sister case of HU/148/2011 (sic). I also heard it from other sources. The Defendant (Appellant) made the comment while I was on an Okada riding past. He was making the comment when Emeka who was buying fuel overhead it. Emeka was coming to the Church for a programme and summoned the courage to confront me. When Emeka described the Defendant as the person who made the defamatory statement. I knew it was the defendant because at the time he made the statement he was carrying a mould for moulding blocks. The said Emeka described the Defendant and when he saw him when my mother died, he now identified the Defendant and said “This is the person who made that comment about your nudity” See page 56 of the Records of Appeal.

One thing that is clear from the above evidence is that the Respondent did not hear the alleged defamatory statement, directly, from the Appellant, and that said in the presence of a 3rd party – Mr. Emeka Nwachukwu! It is also clear that the Respondent was not trying to prove a case of libel, but of slander, having said:
“I didn’t pick up the rumour or defamatory comment from the statement on oath of the sister case of HU/148/2011 (sic). I also heard it from other sources.”

I think the need for a plaintiff who alleges that he has been slandered to be present and hear the slanderous words himself, which must be published to others or a 3rd party, is founded on the fact that the same forms the basis of the cause of action, as there is no cause of action, where the slander can not established. There is the likehood that a 3rd party, who claimed to have heard the slanderous words, may not have reported, correctly, what happened, or the exact information published to the plaintiff, and the plaintiff will therefore simply make a fool of himself to rely on the ‘hear-say’ to approach the Court.

CW2, Emeka Nwachukwu in his evidence had told the Court, under cross examination, that the person who spoke, making passing comment about the Respondent, had said:
“Nka bu Mary Onye Ara (Look at Mary, the mad woman” (page 59 of the Records).

But in his statement on Oath, filed in Court (Page 12 of the Records) paragraph 2 thereof, he had averred:
“That on 20th day of September on a Tuesday at the Umualanchara Olokoro Square, I heard the defendant discussing with some group of people and he was telling them that the Claimant stripped herself naked on 14th day of September, 2011, when the claimant’s father’s grave and that of his younger brother was destroyed and she was shouting like a mad woman”

While giving evidence in Court, he said he was buying fuel at a Filling Station, at ‘Ama’ when he saw a man who was telling those around him, after the Respondent drove past – “Nka bu Mary Onye Ara (Look at Mary, the mad woman)”. Those were two different statements, at separate places. Which one did he give to the Respondent.

He (CW2) gave the Respondent information on 14/9/11. If the CW2 heard any defamatory words (whatever version on 20/9/11 (according to his statement on oath), how could he pass the said information to Respondent on 14/9/11! That would mean he passed the information to the Respondent, one week before he heard the defamatory statement! That, of course, cannot be possible!

In the statement on oath, he also said the stripping by the Respondent was said to have taken place on 14/9/11! Incredible!

Surprisingly, the trial Court relied on such evidence of confused minds to find the Appellant liable for defamation! It is very sad to know that a Court can do that, breaching all known principles relating to defamation, which, among other things, must prove publication of the offending words, and the words complained of, must be pleaded and in the language it was made, and must be proved as pleaded; and where it was a slander, evidence adduced to show how the plaintiff was affected, to establish claim for damages, where no crime was imputed! See the case of Asaa V Ojah (2015) LPELR 24278 (CA); Daura Vs Danhauwa (2011) ALL FWLR (pt.558) 991; Mamman Vs Salaudeen (2006) ALL FWLR (pt.298) 469; Independent Newspapers Ltd. vs Idiong (2012) ALL FWLR (pt.647) 677; Vanguard Media Ltd. vs Olafisoye (2012) ALL FWLR (pt.634) 97.

I hold that the trial Court was in a grave error in this case to hold that the alleged words, which were never specified and duly pleaded, nor published, were defamatory.

The Appellant had also argued that the words which the Respondent relied on to establish defamation, were carried in a Court proceedings, as the same formed part of a witness statement on oath in Suit No: HU/148/2011, and that such process is privileged and cannot lie a claim for defamation.
Of course, that is a correct position of the law, as statement and depositions, made in the course of judicial proceedings are privileged and cannot be used as cause, to found libel. See Mamman Vs Salahudeen (2005) 18 NWLR (pt.958) 478; (2005) 12 SC (pt.11) 46, where the Supreme Court said that even a letter written by a solicitor, in the course of his duties to his client, is privileged and cannot be defamatory, since it was written in a privileged occasion. See also Boxsius Vs Goblet (1891) 4 ALL ER 1178 at 1180; Onyenwe Vs Anaejionu (2014) LPELR – 22495 (CA).

See also the case of Orji vs. PDP (2009) 14 NWLR (pt.1161) 310 at 331; The State Vs. Collins Ojo Aibangbee (2008) 8 NWLR (pt.1037) 517, where the Supreme held:
“The role of a trial Court is to hear evidence, to evaluate that evidence, to believe witnesses who testified and to decide the merits of the case based on the findings. When a trial Court acts on speculations rather than on the evidence then it has abandoned its proper role. No trial Court has a right to draw conclusion of fact outside the available evidence. Such conclusion will be regarded as perverse” (Per Oputa JSC).
My Lord Eso JSC, in that case, also held:
“A judge of first instance decides on evidence led by the parties to a case before him. He does not, with respect, concoct evidence. He does not imagine evidence. He interprets a situation as per the cold facts before him, not as per what he would have preferred the facts to be.”

I, therefore resolve the issues in favour of the Appellant and allow the appeal. The judgment of the lower Court is, hereby, set aside. I award N50,000.00 Naira to the Appellant, as cost of this Appeal.

PETER OLABISI IGE, J.C.A.: I had the advantage to have a review of the judgment of my learned Brother, MBABA, JCA which he just delivered.

I agree with the said judgment.

FREDERICK O. OHO, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother I.G. Mbaba, JCA just delivered and I agree with his reasoning and conclusions therein.

I agree that the Appeal succeeds but would wish to make the following brief comments:
Defamation involves a false statement that defames or harms another person’s reputation. See the case of ESENOWO vs. UKPONG (1999) 6 NWLR (PT.608) 611. See also the case of GUARDIAN NEWSPAPER LTD. & ANOR VS. REV. PASTOR C.I. AJEH (2011) LPELR – 1343 (SC) on the subject. Defamatory statements are categorized as “libel” or “slander”. “Libel” is written or visual defamation and “slander” is spoken or oral defamation. What has been presented in this case is “Slander”. This is easily gleaned from the processes filed by the parties to this action.

The tort of Slander requires much more observance of the rules governing the establishment of a cause of action in order to succeed. A cause of action in an allegation of slander would hardly be said to have been established where the plaintiff relies not on what was said to him directly, but on hearsay evidence or at best what may be termed “un-substantiated rumors”. I too will allow the Appeal and set aside the judgment of the lower Court with costs assessed at N50,000.00 in favour of the Appellant.

Appearances

A. Ogbonna Esq.For Appellant

AND

Eluwa Eze Esq.For Respondent