IBRAHIM v. HANAMA COLLEGE (2020)

IBRAHIM v. HANAMA COLLEGE

(2020)LCN/14544(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Monday, August 31, 2020

CA/YL/134/18

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

JALIMGA IBRAHIM APPELANT(S)

And

HANAMA COLLEGE RESPONDENT(S)

RATIO

DEFINITION OF A “DEFAMATORY STATEMENT”

On the appellant’s issue one, on the need to plead the exact words in the language spoken where a judgment has been obtained in a criminal defamation action, the starting point would be to define the nature or concept of a defamatory statement and what is to be proved. In Words and Phrases Legally Defined, vol. 8, p.28 it has been defined as:
“a statement which, if published of and concerning a person, is calculated to lower him in the estimation of the right – thinking men or cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business.”
See, THE SKETCH PUBLISHING CO. LTD & ANOR vs. AJAGBEMOKE – FERI (1989) LPELR – 3207 (SC) P.19, PARAS A-C, CHIKIED SECURITY SERVICES & DOG FARMS LTD vs. SCHLUMBERGER (NIG) LTD & ANOR (2018) LPELR – 44391, P.15, PARAS A-G; NITEL vs. TUGBIYELE (2005) ALL FWLR (PT 246) 357 and EDEM vs. ORPHEO NIG. LTD (2003) 7 SC 92 at P.101.
It is necessary that the defamatory words in an action for slander as uttered and published in the particular language, Hausa in this case, must be set out side by side the literal translation to English language to properly constitute a cause of action in slander. To succeed, the Plaintiff must prove the following:
(1) The actual words published to a person other than the plaintiff.
(2) The translation to English must be proved by a sworn interpreter as an expert.
The two requirements above must co-exist which necessitates the need to plead the exact words in the language in which it was spoken in a civil suit where damages has been claimed. The Learned Counsel had argued that having succeeded in the criminal action, there was no need for the Appellant as Plaintiff to have pleaded the exact words in this case, in Hausa language. PER UWA, J.C.A.

PROVING THE OFFENCE OF DEFAMATION

The position of the law is that, a plaintiff must of necessity plead verbatim in his statement of claim the exact words uttered or written by the defendant and in the language it was made. This gives the defendant notice of the cause of action he is to meet and it would give him an opportunity to react to it. See, OLANIYI vs. ELERO (2006) LPELR – 5237 (CA) PP. 7 – 8, PARAS. E-A and P.20, PARAS. A – E, OKAFOR vs. IKEANYI & ORS (1979) 3 – 4 SC 99, at P.103.
The appellant was duty bound to plead the words uttered verbatim the alleged offending words, having failed to do so he cannot rightly claim that the trial Court was wrong to have dismissed his claim for not pleading the exact words uttered. What was pleaded in paragraph 3 of the Appellant’s Statement of Claim is not in Hausa language which was alleged to be the language in which the defamatory words were uttered. See, also CHIME vs. EZEA & ANOR (2014) LPELR – 24128 (CA) P.19, PARA. B. Issue one is resolved against the Appellant. PER UWA, J.C.A.

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the Adamawa State High Court delivered on 14th May, 2018 by Abdulazeez Waziri, J. in which the trial Court dismissed the claim of the plaintiff, now appellant and awarded the sum of N10,000.00 (Ten Thousand Naira) damages to the Respondent who was then the defendant.

The appellant as complainant at the Dumna Zebru Area Court, Boshikiri, Guyuk Local Government Area of Adamawa State caused the issuance of a criminal summons against the Respondent (then accused person) for defamation of character of the Appellant. At the trial, the Respondent was found guilty, convicted and sentenced to two (2) years imprisonment or a fine of N20,000.00 (Twenty Thousand Naira) to be paid to the Adamawa State Government and was further ordered to pay all the expenses incurred by the Appellant and compensation of the sum of N38,500.00 Thirty Eight Thousand, Five Hundred Naira) to be refunded under Section 78 of the Penal Code.

The Respondent made all the payments as ordered in obedience to the Dumna Zebru Area Court, Boshikiri, Guyuk Local Government Area of Adamawa State.

Thereafter the Appellant instituted a civil action against the Respondent at the trial High Court and claimed as follows:
i. “The sum of N1,000,000.00 (One Million Naira) as general damages against the defendant for defaming the character and person of the plaintiff which caused him severe mental torture and psychological trauma.
ii. An order restraining the defendant from instituting any frivolous suit in connection with the same issue of defamation against the character of the plaintiff.
iii. Cost of this suit.”

In proof of his case, the Appellant testified as a sole witness and tendered Exhibit ‘A’, the judgment of the Dumna Zebru Area Court (hereafter referred to as the Area Court) convicting the Respondent for the offence of defamation of the character of the appellant and closed his case.

The Respondent on her part, testified and tendered Exhibit ‘B’ which is the payment of a fine of N20,000.00 (Twenty Thousand Naira) with receipt No. 0368112 dated 18/1/2014 to the Adamawa State Government on the conviction of the Respondent. The Respondent also tendered Exhibits C – C10 and D – D1,

the record of proceedings of the Area Court (also tendered by the Appellant) and a Certified True Copy (CTC) of the deposit book for the sum of N38,500.00 (Thirty Eight Thousand, Five Hundred Naira) respectively.

The Appellant was dissatisfied with the dismissal of his action at the trial Court, thus this appeal. The Appellant distilled two issues for the determination of the appeal thus:
1. “Whether a plaintiff who got judgment in a criminal case of defamation need (sic) to plead the exact word in the language spoken in a civil suit for damages, for defaming the character of the plaintiff by the defendant as held by the trial Court? (Distilled from ground 1 of the notice and grounds of appeal).
2.(i) Whether the Appellant is entitled to judgment base (sic) on the evidence adduced at the trial Court should the Court had (sic) properly evaluated the evidence and all exhibits tendered?
(ii) Whether the award of N38,500.00 by the Dumna Zebru Area Court Boshikiri, Guyuk Local Government Area, Adamawa State as cost and compensation to the complainant is adequate to make up for the defamation of character of the Appellant” (Distilled

from ground 2 of the notice and grounds of appeal).

The Respondent on her part distilled the following issues for the determination of the appeal thus:
(1) “Whether the appellant’s suit as pleaded was properly constituted to warrant the grant of damages sought without pleading in his statement of claim the exact words in the language the defamation was uttered.
(2) The respondent adopts issue 2 in the appellant’s brief.”

In arguing the appeal, the learned counsel to the Appellant M.M. Tumba Esq. adopted and relied on his brief of argument filed on 12/7/19, in urging us to allow the appeal, set aside the judgment of the lower Court and grant the reliefs sought. In arguing his first issue, it was submitted that a plaintiff who was a complainant in a criminal case for defamation and got judgment and files a civil suit for defamation of his character is not required to plead the exact words used by the defendant to defame the plaintiff’s character as the business of the Court is not to determine whether the plaintiff’s character has been defamed or not but, to decide whether the plaintiff is entitled to

damages. It was argued that the trial Court was wrong to have held that in an action for libel or slander, the plaintiff must set out the language spoken, to be followed by a literal translation of it by a sworn interpreter. It was submitted that the requirement of the law is only applicable when the offence of defamation of character is to be established, then the exact words as used by the accused would have to be pleaded. See, CHIEF T.F. ORUWARI VS. MRS. INE OSLER (2012) LPELR – SC.289/2005. It was argued that in the present case, the Appellant filed for damages having got judgment in his favour where the Respondent was tried and convicted for defaming the character of the Appellant. It was argued that all that was required was for the appellant to prove that there is a declaration in his favour that the Respondent defamed his character to be entitled to damages. See, GABRIEL MMAJU & ANOR VS. CHIEF IKECHUKWU IKWUKA (2018) LPELR – CA/E/33/2017. It was submitted that Exhibit ‘B’ shows that the Respondent was convicted, sentenced and paid a fine which was an option, paragraphs 5, 6 and 7 of the evidence in chief of the Respondent,

page 25 of the record of proceedings. It was argued that what is required is for the Appellant to prove that his reputation was defamed by the Respondent, to be entitled to damages. It was concluded on this issue that Exhibit ‘A’ tendered by the Appellant without any objection established the fact that the Respondent defamed the character of the Appellant, in a judgment that is subsisting and binding on the parties. See, EDILCON (NIG) LTD. VS. UBA PLC (2017) LPELR – SC.122/2001. The trial Court was said to have been wrong to have held that the Appellant is bound to plead the exact words as used by the respondent in defaming the character of the Appellant. It was stressed that the action is not for defamation but, for damages.

The Appellant’s issue two was argued in two segments. In arguing his issue 2(i), it was submitted that the Appellant established his case against the Respondent by the evidence led at the trial Court and by Exhibit ‘A’ tendered by the Appellant to be entitled to the award of damages, reference was made to the evidence in chief of the Respondent, paragraphs 5, 6 and 7.

On issue 2(ii), it was argued that the award of N38,500.00 (Thirty Eight Thousand, Five Hundred Naira) under Section 78 of the Penal Code was to compensate the complainant for the expenses in prosecuting his matter in Court. Further, that where compensation is awarded to the complainant and such compensation is not adequate to make up for the injuries suffered by the criminal actions of the defendant, he may approach the Court to seek for damages by filing a civil suit. It was submitted that the compensation awarded by the Area Court is not enough to make up for the cost of prosecuting his criminal case at the Area Court and for the injuries and pains suffered before the members of his community. It was argued that the offence of ‘murder’ is serious and anyone defamed with the imputation of a murderer without lawful justification should be adequately compensated to vindicate the standing of the person in the eyes of the community. See, MR. BIODUN ODUWOLE & ORS VS. PROF. TAM DAVID WEST (2010) LPELR – SC.173/2003. It was submitted that it is the duty of the Court to review the compensation in a criminal case in favour of the complainant which is low and cannot

make up for the severe mental torture and psychological trauma which lowers the plaintiff’s esteem in the minds of right thinking men and members of his community. See, MR. BIODUN ODUWOLE & ORS VS. PROF. TAM DAVID WEST (2010) (supra).

Further, that the factors to be considered in the award of damages in defamation were laid down in the case of AJAYI VS. FAYAN (2014) LPELR CA/AK/95/2012. Also, that the award of damages to an aggrieved party is to restore the plaintiff as far as money can to the position he would have been if there had been no breach in the first instance. See, KENTUS CHEMICALS & ALLIED PROJECTS LIMITED VS. UNITED BANK FOR AFRICA PLC (2012) LPELR – CA/B/299/2005, NWAENANG VS. NDARAKE & ORS (2013) LPELR CA/C/178/2011 and SECTION 365(1) (B) of the Criminal Procedure Code (CPC). It was argued that Section 365(1)(b) of the CPC provides that a successful party if not satisfied by the award of compensation may file a civil suit in a different Court to claim damages. Further, was argued that in awarding damages in a defamatory case, the Court must ensure that the award made is adequate to assuage the injury to the

reputation, character and pride of the plaintiff which were violated. We were urged to hold that the award of N38,500.00 to the plaintiff by the Area Court is to defray the expenses incurred in the prosecution of the case and not as damages for the severe mental torture and psychological trauma.

In response, the learned counsel to the Respondent C. Cromwell Esq. adopted his brief of argument filed on 29/7/19 as his argument in this appeal in urging us to dismiss the appeal and affirm the decision of the trial Court. In arguing his first issue, it was submitted that the determination by the Court of the defamatory words is the pre-condition to the claim of damages. It was submitted that the defamatory words in an action for slander must be published as uttered which must be set out side by side the literal translation to English Language to constitute a course of action in slander, in the present case, the words were uttered in Hausa Language. See, ORUWARI VS. OSLER (supra) at PP. 21 – 22, PARAS. G – H and SOWOLE VS. EREWUNMI (1961) ANLR 741. It was argued that the defamatory words alleged to have been uttered must be pleaded in Hausa Language

and set out, side by side the literal translations to English Language to properly constitute a course of action in slander. The following were set out as what must be proved for the plaintiff to succeed in an action for slander:
1. Proof of actual words published to a person other than the plaintiff.
2. Proof of the translation to English Language by a sworn interpreter as an expert.

It was submitted that the above requirements were not met by the appellant. It was argued that the criminal proceedings in Exhibits A, B, C and D conducted under the Criminal Procedure Code is distinct from the civil proceedings based on pleadings as prescribed under Order 1 Rule 2 of the High Court Rules of Adamawa State, 2013, the proceedings are distinct and independent of each other. Further, the fact of conviction in a criminal trial is not admissible evidence in civil proceedings. See, ONYEWUKE VS. SULE (2011) LPELR – 9084 (CA), OYEWALE VS. KELANI (1945) 12 WACA 327 and NWACHUKWU VS. EGBUCHU (1990) 3 NWLR (PT. 139) 435.

In arguing his issue two, reliance was placed on the cases of ORUWARI VS. OSLER (supra) and ONYEWUKE VS. SULE (supra) in arguing that

the issue is academic and cannot be sustained.

I would utilize the issues as formulated by the appellant in the determination of the appeal.

EDEM vs. ORPHEO NIG. LTD (2003) 7 SC 92 at P.101.
It is necessary that the defamatory words in an action for slander as uttered and published in the particular language, Hausa in this case, must be set out side by side the literal translation to English language to properly constitute a cause of action in slander. To succeed, the Plaintiff must prove the following:
(1) The actual words published to a person other than the plaintiff.
(2) The translation to English must be proved by a sworn interpreter as an expert.
The two requirements above must co-exist which necessitates the need to plead the exact words in the language in which it was spoken in a civil suit where damages has been claimed. The Learned Counsel had argued that having succeeded in the criminal action, there was no need for the Appellant as Plaintiff to have pleaded the exact words in this case, in Hausa language. The position of the law is that, a plaintiff must of necessity plead verbatim in his statement of claim the exact words uttered or written by the defendant and in the language it was made. This gives the defendant notice of the cause of action he is to meet and it would

give him an opportunity to react to it. See, OLANIYI vs. ELERO (2006) LPELR – 5237 (CA) PP. 7 – 8, PARAS. E-A and P.20, PARAS. A – E, OKAFOR vs. IKEANYI & ORS (1979) 3 – 4 SC 99, at P.103.
The appellant was duty bound to plead the words uttered verbatim the alleged offending words, having failed to do so he cannot rightly claim that the trial Court was wrong to have dismissed his claim for not pleading the exact words uttered. What was pleaded in paragraph 3 of the Appellant’s Statement of Claim is not in Hausa language which was alleged to be the language in which the defamatory words were uttered. See, also CHIME vs. EZEA & ANOR (2014) LPELR – 24128 (CA) P.19, PARA. B. Issue one is resolved against the Appellant.

Issue two(i) is challenging the evaluation of evidence by the trial Court. No doubt Exhibits A, B, C and D emanated from the criminal trial in an Area Court conducted under the Criminal Procedure Code whereas, the trial at the lower Court that gave rise to this appeal was a civil trial conducted under Adamawa State High Court Civil Procedure Rules which is based on pleadings. The two proceedings

are distinct and independent of each other, the success or failure of the earlier trial does not determine the outcome of the latter. Each proceeding is carried on independently and proved on its particular merit on satisfaction of the elements to be established for proof. The criminal proceedings between the parties in this appeal can not be utilized to establish proof or the truth of the civil proceedings. The record of proceedings in the criminal trial relied on by the learned counsel to the Appellant to show that the Appellant had proved that he had been defamed without independently establishing the requirement for proof of the defamatory words alleged to have been uttered by the respondent against the Appellant does not hold water. I hold that the trial Court properly evaluated the evidence before it in arriving at its decision, I cannot fault same. I resolve issue 2(i) against the Appellant.

Issue 2 (ii) seeks an upward review of the cost and compensation awarded by the Dumna Zebru Area Court in respect of the criminal trial the Appellant having made out that the compensation awarded by the area Court is not enough to have covered the mental

torture and psychological trauma allegedly suffered by him, by the alleged defamatory words which was an attack on his character. The civil matter that gave rise to this appeal is a fresh action and therefore can not be rightly utilized to review the award of costs and compensation by the trial criminal Court in a different case.

Further, having held under issue one that the essential ingredients to succeed in an action for slander has not been proved, the Appellant is not entitled to damages. Therefore, whether the previously awarded costs and compensation was adequate or not becomes a non issue and academic. Damages are awarded on success of a plaintiff’s action, in this case where the appellant alleged he suffered mental torture and psychological trauma, same would have to be equally proved. The trial Court was right to have held that embarking on the resolution of this issue would be an academic exercise. I am at one with the decision of the trial Court. I resolve issue 2 (ii) against the appellant.

I hold that the appeal is unmeritorious, it is hereby dismissed for lacking in merit. The judgment of the trial Court in Suit No. ADSY/44/17

delivered on 14th May, 2018 is hereby affirmed.
I award costs of N50,000.00 (Fifty Thousand Naira) in favour of the Respondent.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by my learned brother Uwa JCA.

I agree with my learned brother that the appeal lacks merit and should be dismissed. The appellant could not establish defamation without pleading and tendering the exact words alleged to be defamatory. He is not permitted to rely on the proceedings and judgment in a criminal trial to prove the defamation alleged.
For the reasons contained in the lead judgment, I too dismissed the appeal.
I abide by all other orders contained in the lead judgment including the order as to costs.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

Appearances:

M. Tumba, Esq., with him, M. O. Otokpa, Esq. For Appellant(s)

Cromwell, Esq. For Respondent(s)