NANA AYUBA v. RAKIYA SULE
(2016)LCN/8222(CA)
In The Court of Appeal of Nigeria
On Friday, the 26th day of February, 2016
CA/K/269/2010
RATIO
TORT: TORT OF DEFAMATION; WHEN IS A STATEMENT SAID TO BE DEFAMATORY
It is not every statement which is made and which annoys a person that is defamatory. It is also not every vulgar statement, mere abuse or insult which is actionable, thus published words which are considered to be mere vulgar abuses, will not normally ground an action for libel or slander. What could be regarded as vulgar abuse would however depend on the exact words published, the status of the parties and the circumstances when the publication is made. For instance, abusive words uttered by low class people or motor park drivers and workers which are usually uttered as prelude to a fight, are usually regarded as vulgar abuses as they are normally never taken very seriously and could therefore not ground an action for either slander or libel. See V. M. ILOABACHIE ESQ. v. BENEDICT N. ILOABACHIE (2005) VOL 22 NSCQLR 672 at 711- 712 per S. A. Akintan JSC. Vulgar abuses in the heat of quarrel or argument or anger are not defamatory. See BAKARE V. ISHOLA (1959) WNLR 106, and Augie, JCA in AMAHAGWU V. NGWOKOR (2004) ALL FWLR (PT.219) 1091 AT 1100-1 CA. per. UWANI MUSA ABBA AJI, J.C.A.
TORT: SLANDER; WHAT THE PLAINTIFF MUST PROVE TO SUCCEED IN A CASE OF SLANDER
The first requirement that is essential in slander is malice. To succeed in a case of slander, the plaintiff must prove-the words spoken, communication of the words to a third person, falsity of the communication against the plaintiff, damage must be proved except the slander is actionable per se, the actual words spoken should be reproduced in the language spoken with an English translation. See AMAHAGWU V. NGWOKOR (2004) ALL FWLR (PT.219) 1091 AT 1098, YESUFU V. GBADAMOSI (1993) 6 NWLR (PT.299) Slander cannot be a sword but a shield. It is not in the offensive but the defensive, it is for those with clean hands and not for those with soiled hands, it cannot be a product of a duel, fight or misunderstanding but is for the silent and innocent party. In the instant appeal, it is noticeable that both the Appellant and the Respondent had malice, grudges, acrimony and bitterness toward each other as neighbours living in the same compound. per. UWANI MUSA ABBA AJI, J.C.A.
APPEAL: SITUATION WHERE AN APPELLATE COURT CAN INTERVENE TO VARY AN AWARD OF DAMAGES
An appellate Court can intervene to vary an award of damages, set aside, reduce or vary same in whatever manner it decides provided the award is arbitrary, excessive, erroneous or there has been a wrong exercise of discretion in granting it. See PROF. DAVID-WEST v. MR. ODUWOLE & ORS (2003) FWLR (PT.163) 146 AT 157 CA. per. UWANI MUSA ABBA AJI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
Between
NANA AYUBA Appellant(s)
AND
RAKIYA SULE Respondent(s)
UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Katsina State High Court holden at Katsina in Suit No.KTH/27/2005, delivered on 10/3/2010 by Hon. Justice Sadiq Abdullahi Mahuta (C.J), wherein the Claims of the Respondent for defamation were granted with N100,000.00 exemplary damages and N10,000.00 general damages.
The Respondents’ Claims at the Lower Court against the Appellant vide a writ of summons at pages 1 – 2 and Statement of Claim at pages 3-4 of the records respectively were as follows:
1. Exemplary damages against the defendant in the sum of Two Million Naira (N2,000,000.00).
2. General damages against the defendant in the sum of Five hundred Thousand Naira (N500,000.00).
The facts of the case as can be discerned from the records are that the Respondent sued the Appellant at the Katsina State High Court for defamation wherein 6 witnesses stood for the Respondent while the Appellant testified alone. After the conclusion, judgment was in favour of the Respondent hence this appeal by the Appellant.
?Thus, the Appellant appealed vide a Notice of Appeal
dated 13/4/2010 and filed on 16/4/2010, wherein 5 Grounds of appeal were raised herein reproduced without particulars:
GROUNDS OF APPEAL:
GROUND ONE:
The learned trial Judge erred in law when he held in the following passage of the judgment of the Court thus:
“It is therefore my considered view that a case of defamation has been established against the defendant in favour of the plaintiff…”
GROUND TWO:
The learned trial Judge erred in law when he held in the following passage of the judgment of the Court thus:
“However having gone through the statement of claim of the plaintiff, the words ‘Yar Iska’ ‘Karuwa’ and prostitute were clearly spelt out in paragraph 3 thereof even though learned counsel said the words were hybrid, It is however my considered opinion that the words complained of were actually spelt out and it really does not matter whether they were hybrid of Hausa and English Language.”
GROUND THREE:
The learned trial Judge erred in law when he held in the following passage of the judgment of the Court thus:
“As for publication which learned counsel to the defendant alleged was not done in the
case at hand, I wonder what is the import of the evidence of P.W.1 who said and described the words complained of.”
GROUND FOUR:
The learned trial Judge erred in law in holding that the Plaintiff/Respondent is entitled to exemplary damages.
GROUND FIVE:
The judgment is against the weight of evidence.
In accordance with the Rules of this Court, the Appellant filed her Brief of argument dated and filed on 3/9/2010, settled by A.M. Saulawa, Esq, wherein he formulated 5 issues for the determination of the appeal to wit:-
1. Whether the trial Court was right in holding that a case of defamation is established against the Appellant (Distilled from Ground 7 of the Notice of Appeal).
2. Whether the trial Court was right in holding that the words complained of were actually pleaded in paragraph 3 of the statement of claim, (Distilled from Ground 2 of the Notice of Appeal),
3. Whether there was publication of the defamatory words to any third party. (Distilled from Ground 3 of the Notice of Appeal),
4. Whether the trial Court rightly held that the Respondent was entitled to exemplary damages. (Distilled from Ground 4 of the
Notice of Appeal).
5. Whether the trial Court properly evaluated the evidence placed before it by parties before arriving at its decision.
(Distilled from Ground 5 of the Notice of Appeal).
The Respondent did not file any brief consequent upon which pursuant to Order 18, Rule 10 of the Court of Appeal Rules, 2011, the Appellant applied vide a motion dated 4/9/2015 and filed on 7/9/2015 for the appeal to be heard only on the Appellant’s brief. At the hearing of the appeal on 18/1/2016, Counsel to the Appellant adopted his brief of argument and prayed this Court to allow the appeal.
I shall consider this appeal on this issue as summed up by me as follows:
Whether the trial Court was right to hold that a case defamation against the Appellant was established and award the damages it did.
It is submitted by the learned Counsel to the Appellant that in proving defamation, the defamatory statement published must be calculated to lower him in the estimation of the right thinking members of the society. He relied on SKETCH V. AJAGBEMOKEFERI (1989) 1 NWLR (PT.100) 678 AT 695 PARAS C-D and OLANIYI V. ELERO (2007) 8 NWLR (PT.103) 517 AT 527
PARAS B-C. In the instant case, that the alleged words of defamation were uttered in the heat of a quarrel between the two parties and only the evidence of PW1 revealed this. Hence, it is submitted that words uttered in the heat of a quarrel as mere vulgar abuse do not amount to slander. He relied on ADEYEMO V. AKINTOLA (2004) 12 NWLR (PT.887) 390 AT 404 PARAS F-H.
It is maintained that failure to plead the exact words uttered and in the language renders the case fatal. He cited OLANIYI V. ELERO (2007) 8 NWLR (PT.103) 517 AT 530 PARA B. Thus, that the pleaded paragraph 3 of the alleged defamatory words does not satisfy the requirements of the law and same are hybrid of Hausa and English languages. Again, that the defamatory words must be published to third parties who must be identifiable. He relied on ADEYEMO V. AKINTOLA (2004) 12 NWLR (PT.887) 390 AT 406-407 PARAS F-E. He settled that none of the witnesses testified as a receiver of any defamatory matter against the Respondent. Thus, that evidence on facts not pleaded goes to no issue. He cited JOLAYEMI V. ALAOYE (2004) 12 NWLR (PT.887) 332 AT 340 PARA D.
?It is argued that the Respondent did not
make out a case for exemplary damages, which are not awarded as a matter of routine. Also, that a party must show that the injury he has suffered was due to the malicious act of the party against whom exemplary damages are sought. He cited G.K.F INV. NIGERIA LTD v. NITEL (2006) 1 FWLR (PT.297) 317 PARAS E-H, WILLIAMS v. DAILY TIMES (1990) 1 NWLR (PT.124) 30-31 and UKACHUKWU v. UZODINMA (2007) 9 NWLR (PT.1038) 267 AT 190 PARAS A-C. He submitted that the findings of the trial Court cannot be supported by evidence. He relied on JOLAYEMI v. ALAOYE (supra) AT 350 PARAS F-G. He contended that this is an exceptional case where the appellate Court should disturb the finding of facts of the trial Court. He relied on POPOOLA V. BALOGUN (2007) 8 NWLR (PT.1037) 574 AT 598 PARAS C-F. He urged this Court to set aside the judgment of the trial Court.
Slander is a form of defamation published in a transitory form; by words spoken or other audible or visible forms, significant sounds, look, signs or gestures. Slander is a defamatory statement expressed through speech or made in a transient form. Slanderous statements generally are those defamatory words that are not
recorded with some degree of permanence. See CHIEF NYA EDIM EKONG v. CHIEF ASUQUO E. OTOP & ORS (2014) LPELR-23022(SC), CHAMBERLAIN V. BOYD (1883)-Locus classicus.
In the present appeal, it is on record that there is no printed record of what the alleged defamatory words were but as recounted by the witnesses themselves. Thus, it is slander. The only witness who witnessed the incident and possibly to whom the alleged publication was made is PW1. At page 18 from line 13 of the records he testified:
“I then heard abusive words being shouted and I stood up. I heard when the defendant was shouting bastard and prostitute. She was referring to the plaintiff.”
On the same page, when asked under cross-examination if they were fighting, he replied, “Yes they were fighting.” Again, when asked if both were abusing each other, he said “Yes”. The Respondent narrated her story as PW5 at page 29-30 from the last line where she stated:
“By the road the defendant was being carried on motorcycle and the light fell on us and she started abusing me calling me a prostitute. The boy went to confront her but she was not around., She returned and on seeing us
she began to abuse us, I was calmed by people, Later after 9 days I saw her by her house and she abused me again. I was calmed and I went home…I did not take any action but I told my mother that I would give the defendant a beating but my mother said no and indicated to my mother that I would take action and I instituted an action in Court No.3…”
The Appellant at page 34-35 from line 16 narrated the incident thus:
“When I was passing by them, I heard the word stupid mentioned and I passed, I had to go into a shop and on my coming out I saw them coming back confronted me to tell them whom I was calling stupid, I told them they were the ones who called me stupid…The plaintiff again called me stupid and that I was just bragging in the neighbourhood and I was pompous. I retaliated that I am not stupid but it was either the plaintiff or the man. They threatened to beat me up and a commotion ensued. We were separated by some youngsters going by, The next day I was summoned by Sharia Court No.3..”
It is crystal clear from the community evaluation and consideration of their testimonies to establish that:
1. The evidence of PW1 is at variance
with both of the Appellant and the Respondent in some respect.
2. The evidence of both the Appellant and the Respondent indicates that the incident happened outside their compound whereas that of PW1 said it was in their compound.
3. That both the Appellant and the Respondent had been engaged one way or the other in some squabbles, quarrels, fight and exchange of words prior to the institution of the matter in Court.
4. That by the evidence of PW1, both the Appellant and the Respondent fought and abused each other on the fateful day that Respondent alleged was called a prostitute.
5. By the evidence of PW1, it cannot be said that there was any publication to any party of the words alleged or heard to be slanderous against the Respondent.
It is not every statement which is made and which annoys a person that is defamatory. It is also not every vulgar statement, mere abuse or insult which is actionable, thus published words which are considered to be mere vulgar abuses, will not normally ground an action for libel or slander. What could be regarded as vulgar abuse would however depend on the exact words published, the status of the
parties and the circumstances when the publication is made. For instance, abusive words uttered by low class people or motor park drivers and workers which are usually uttered as prelude to a fight, are usually regarded as vulgar abuses as they are normally never taken very seriously and could therefore not ground an action for either slander or libel. See V. M. ILOABACHIE ESQ. v. BENEDICT N. ILOABACHIE (2005) VOL 22 NSCQLR 672 at 711- 712 per S. A. Akintan JSC. Vulgar abuses in the heat of quarrel or argument or anger are not defamatory. See BAKARE V. ISHOLA (1959) WNLR 106, and Augie, JCA in AMAHAGWU V. NGWOKOR (2004) ALL FWLR (PT.219) 1091 AT 1100-1 CA.
The first requirement that is essential in slander is malice. To succeed in a case of slander, the plaintiff must prove-the words spoken, communication of the words to a third person, falsity of the communication against the plaintiff, damage must be proved except the slander is actionable per se, the actual words spoken should be reproduced in the language spoken with an English translation. See AMAHAGWU V. NGWOKOR (2004) ALL FWLR (PT.219) 1091 AT 1098, YESUFU V. GBADAMOSI (1993) 6 NWLR (PT.299)
363.
Slander cannot be a sword but a shield. It is not in the offensive but the defensive, it is for those with clean hands and not for those with soiled hands, it cannot be a product of a duel, fight or misunderstanding but is for the silent and innocent party. In the instant appeal, it is noticeable that both the Appellant and the Respondent had malice, grudges, acrimony and bitterness toward each other as neighbours living in the same compound.
Slander has not therefore been established in this appeal against the Appellant, thus there is no damages to be awarded as damages are granted not as a matter of course but provable. It is trite that claim for damages for slander would fail where special damages cannot be proved. See SALAMI OKEOTA V. YESUFU AFOLABI & ORS (1986) 2 C.A. (PT.1) 341.
?An appellate Court can intervene to vary an award of damages, set aside, reduce or vary same in whatever manner it decides provided the award is arbitrary, excessive, erroneous or there has been a wrong exercise of discretion in granting it. See PROF. DAVID-WEST v. MR. ODUWOLE & ORS (2003) FWLR (PT.163) 146 AT 157 CA.
There is no tinge and vestige of
defamation established against the Appellant by the Respondent at all. Therefore, this issue is resolved against the Respondent and in favour of the Appellant. The judgment of the Katsina State High Court holden at Katsina in Suit No.KTH/27/2005, delivered on 10/3/2010 by Hon. Justice Sadiq Abdullahi Mahuta (C.J.) with all the award of damages therein is set aside. Parties should bear their costs.
?ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, UWANI MUSA ABBA AJI, JCA gave me the privilege of reading the draft of the judgment just delivered. I agree with the reasoning of my learned brother as well as the conclusion that the appeal is meritorious and it is allowed by me. I abide by the consequential order.
IBRAHIM SHATA BDLIYA, J.C.A.: I agree.
Appearances
A. M. Saulawa, Esq.For Appellant
AND
No appearance for the respondent.For Respondent
