AKPAN v. AKPAETOK
(2021)LCN/15160(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Wednesday, March 17, 2021
CA/C/277/2015
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
EMMANUEL S. AKPAN APPELANT(S)
And
NTIENYONG UDO AKPAETOK RESPONDENT(S)
RATIO
CONDITIONS THAT MUST BE SATISFIED TO SUCCEED IN AN ACTION FOR SLANDER WHERE THE WORDS COMPLAINED OF WERE NOT UTTERED IN ENGLISH
To succeed in an action for slander where the words complained of were not uttered in English; 1) The plaintiff must prove that the actual words were published to a person other than the plaintiff. 2) Prove that the translation to English was by a sworn interpreter as an expert witness. The sworn interpreter is to prove the correctness of the translation of the foreign language to English. The two requirements above must co-exist at the same time and must also be pleaded and satisfied before a plaintiff can succeed in an action in slander as in this case. Where the plaintiff is unable to prove any of these ingredients as required by law, his case remains unproven. See Oruwari v. Osler (2012) LPELR – 19764 p.40-41 per Chukwumah-Eneh, JSC. A plaintiff, according to the law, must in his statement of claim aver all material facts in a case of slander, the place where the slander was uttered in order to enable the defendant know exactly the case he has to meet. See Ezomo v. Oyakhire (1985) LPELR – 1216 SC p.7-8 per Aniagoh, JSC. PER JAMES SHEHU ABIRIYI, J.C.A.
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment delivered on 30th July, 2015 in the High Court of Akwa Ibom State sitting at Uyo.
In the High Court (the Court below), the Appellant was the plaintiff. The Respondent was the defendant. The Appellant claimed against the Respondent for: 1) N10 million Naira damages for slander, an apology to him and an injunction restraining the Respondent from further publishing the slander.
The case of the Appellant was that the Respondent, on or about 9th August, 2012, knowing that, he (Appellant) was about to marry went about the village and its environs far and wide maliciously and falsely uttering the following words translated into English from a provincial language:
“Afo amediono nte ke nwan emi udo eka afo oyomde ndido do asana ye idib? Ndien nte ke eyen eka fo esin eye? Amediono nte ke ema ebin Udo eka fo esio ke esop Abasi, ke enye idihe owo Ntiense Jehovah. Nte ke nwan emi eye oyomde ndido mi ye ofuri ufok mo idihe me Ntiense Jehovah”?
Which words interpreted in English language means:
“Do you know that the would-be-wife
1
of your younger brother had been impregnated by him?
That your brother had been disfellowship from the congregation and no more a Jehovah’s witness. That would-be-wife and her entire families are not members of Jehovah witness.”
The Respondent denied uttering those words at anytime or any word against the Appellant which was reckless or malicious. The case of the Respondent was that the Appellant distributed invitation cards for his wedding. The DW2 approached him (Respondent) that there was a rumour that the Appellant had ceased to be a member of Jehovah Witness and that his proposed wife was not a witness. The Respondent discreetly found out from the Appellant’s brother PW2 that the rumour was false. The Respondent told the DW2 this finding. The matter was not discussed with anybody.
That the PW2 who told the Appellant that Respondent defamed him, had a grudge against the Respondent because he was removed from office as Elder in Ntan Central Congregation when he (Respondent) was Coordinator.
After considering the evidence adduced by both parties and addresses of their counsel, the Court below dismissed the claim of the Appellant.
2
The Appellant appealed to this Court on one ground of appeal. From this ground of appeal the Appellant presented the following issue for determination:
“Whether the Court was right in dismissing the case of the claimant/appellant on the ground that the claimant/appellant failed to prove publication of the alleged slanderous words when in fact the claimant/ appellant and his witness in their evidence proved publication?”
The Respondent adopted the above issue presented by the Appellant.
Arguing the appeal, learned counsel for the Appellant submitted that the basis of an action in defamation is not the words themselves but the publication to another person other than the claimant. Therefore, the publication might be to just one person who is a third party other than the claimant. The Court was referred to Law of Tort by Malemi First Edition 2008.
Apart from the evidence of the Appellant, there is the evidence of PW2, it was submitted, where he (PW2) stated as follows:
“That sometimes in the months of August, 2012, precisely 9th November, 2012, the Defendant came to my house at Ntan Ibiono Ibom Local Government Area and uttered the following words.”
3
It was submitted that there was publication of the slanderous words complained of by the Appellant when the Respondent went to the house of the PW2 to utter the slanderous words to him. The Court was referred toDairo v. U. B. N. Plc & Anor (2007) Vol.152 LRCN 18.
Learned counsel for the Respondent submitted that the Appellant did not establish publication as required by law in order to succeed in the claim for defamation. It was submitted that the entire evidence of two witnesses who testified for the Appellant was contradictory.
It was pointed out that the claimant himself under cross examination said:
“The defendant made the defamatory statement outside the Kingdom Hall of Jehovah’s Witnesses, my brother Akaninyene was present. There were many other persons. One Mrs. Treasure Uwem Udo was there. Treasure is related to me. She is my cousin and also the defendant’s cousin. There were others who heard what the defendant said.” Page 39 lines 2 to 11. That the Appellant had already said on page 87 lines 12 and 13 thus: “I did not hear the statement directly. He made the statement directly to my brother.”
4
This, it was submitted is hearsay, hence the Court below did not rely on it in its judgment.
The only person who claimed to have heard the Respondent was PW2, it was argued. That the PW2 under cross examination said that the Respondent had earlier gone to his house on 6th August, 2012 but he (PW2) was not at home. That he (PW2) was not the only person at Kingdom Hall premises but the Respondent called him aside and told him “these thing”.
This, it was argued, shows that the Respondent spoke to him in confidence and in the presence of no other person and the venue was their place of worship.
Learned counsel for the Respondent submitted that it is surprising the PW2 in his written statement on oath stated in paragraph 2 thus:
“That sometime in the month of August, 2012 precisely 9th November, 2012, the defendant came to my house at Ntan Ibiono Ibom Local Government Area and uttered the following words:”
The Court was referred to the statement of claim of the Appellant where he averred that the Respondent went about the village and its environs far
5
and wide and uttered in the presence of Treasure Uwem (Mrs.), Akaninyene Samuel Akpan and diverse other persons the words maliciously and falsely.
Apart from denying that he uttered the words complained of, the Appellant did not convince anybody that those words were published, it was argued.
It was submitted that in order to succeed in a claim for defamation, the plaintiff must prove the fact of publication. The plaintiff must prove that the defamatory matter was published to a third party.
In the case at hand, it was contended that the Respondent did not speak to the Appellant. The only person the Respondent spoke to was PW2 and PW2 had said he was called and spoken to away from any person.
Furthermore, it was argued, the words complained of were incapable of publication. This is because, the Appellant in paragraph 3 of the statement of claim and paragraph 3 of his statement on oath claimed that the Respondent;
“Went about in Ntan Akpan Udom village, Ibiono Ibom Local Government Area and its environs far and wide and uttered in the presence of Treasure Uwem Udo, Mrs., Akaninyene Samuel Akpan and diverse other persons.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
6
It was submitted that from the alleged defamatory words, it is not possible that the words were published to persons in the entire village and other diverse people far and wide except PW2 was following the Respondent to those places where those diverse persons were available.
The Court was urged to hold that those words were not spoken but that the PW2 decided to create mischief between the Appellant and the Respondent.
To succeed in an action for slander where the words complained of were not uttered in English;
1) The plaintiff must prove that the actual words were published to a person other than the plaintiff.
2) Prove that the translation to English was by a sworn interpreter as an expert witness. The sworn interpreter is to prove the correctness of the translation of the foreign language to English. The two requirements above must co-exist at the same time and must also be pleaded and satisfied before a plaintiff can succeed in an action in slander as in this case. Where the plaintiff is unable to prove any of these ingredients as required by law, his case remains unproven. See Oruwari v. Osler (2012) LPELR – 19764 p.40-41 per Chukwumah-Eneh, JSC.
7
A plaintiff, according to the law, must in his statement of claim aver all material facts in a case of slander, the place where the slander was uttered in order to enable the defendant know exactly the case he has to meet. See Ezomo v. Oyakhire (1985) LPELR – 1216 SC p.7-8 per Aniagoh, JSC.
In the instant case there is no evidence that the alleged words uttered by the Respondent were translated by an expert from the language in which they were allegedly uttered into English. It is not enough merely to plead the words in both the language they were allegedly uttered and an English translation. There is no expert witness to confirm the correctness of the translation.
Furthermore, the Appellant pleaded that the Respondent went about the village and its environs far and wide and uttered in the presence of Treasure Uwem Udo (Mrs.), PW2 and diverse other persons the words complained of. Under cross examination he said he himself did not hear the words directly. PW2 who the Appellant claimed was present when the words were uttered in his evidence in chief claimed that the Respondent uttered the words complained of to him in
8
his (PW2’s) house. But under cross examination, the PW2 somersaulted and said, the Respondent made the statement at their place of worship or Kingdom Hall. That the Respondent called him aside and uttered the words.
Apart from the fact that the evidence of PW2 as to where the alleged words were uttered is not pleaded, the violent contradiction in the evidence of this witness calls for its total rejection by the Court.
No other witness was called from the village, its environs, far and wide by the Appellant to prove that the Respondent uttered the words complained of. I have pointed out earlier in the judgment that the Appellant himself under cross examination said he did not hear the Respondent utter the words.
The Appellant’s claim before the Court in the circumstances was not established.
The lone issue for determination is therefore resolved against the Appellant and in favour of the Respondent.
The appeal is dismissed by me. Parties shall bear their respective costs of the appeal.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother J. S. Abiriyi, JCA.
9
I agree with the reasoning and conclusion reached in the judgment. I also agree that the appeal be dismissed.
I abide with the order as to costs.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, James S. Abiriyi, JCA, just delivered. I agree entirely with the reasoning and conclusion reached. The appeal lacks merit and is accordingly dismissed.
10
Appearances:
O. Etim, Esq. For Appellant(s)
Edet T. Etukudo, Esq. For Respondent(s)
