In The Court of Appeal

(Port Harcourt Judicial Division)

On Thursday, the 2nd day of April, 2009

Suit No: CA/PH/266/2005

Before Their Lordships

 Between

 And

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Imo State High Court sitting at Iho whereby the Plaintiff, now Respondent, was awarded the sum of N500,000.00 as general  damages for slander. The Appellant, who was the Defendant at the trial court, aggrieved by the decision delivered on 16th June, 2004 by G.C. Ihekire, J, filed his Notice of Appeal on 21st June, 2004. The original notice of appeal has five grounds of appeal. By leave granted to the Appellant on 28th February, 2006 to amend the notice of appeal and argue additional grounds of appeal three additional grounds were filed.

   At the trial court the parties filed and exchanged pleadings.

   The cause of action for the Plaintiff/Respondent's claim of the sum of N5,000,000.00 [five million Naira] as general damages for slander is articulated in paragraphs 3, 4 and 5 of the amended statement of claim to wit -

3. On the 6th day of March, 1998 at a night vigil in honour of the deceased father of the Defendant in the compound of the Defendant's late, father at Umuduruonyeama, Umudim, Ikedura, the Defendant falsely and maliciously, by means of a public address system, spoke and published of and concerning the Plaintiff to all persons present at the vigil, [which included Chief [Dr] Iwueze, Adolphus Nnamdi Iheanacho, Chief Emmanuel Apele, Chief Godwin Emele and many others] the following words -

Onye wu ahu kporo onwe ya Dibianta. Awum Dibraukwu. Ganu kpo Dibianta Iheanacho ka obia Agaa, Dibianata Iheanacho bu a rat nga mno ihe oma eme bu nani igbu madu. Obia ngaa na abalia, a ga eji oso gbalaga

4. The above words when translated into English language means-

who is that person that calls himself Dibianta? I am Dibiaukwu. Go and call Iheanacho to come here. Dibianta

Iheanacho is a rat to me the only thing he knows how to do is kill human beings.

If he comes here this night he will take to his heels.

5. All the people at the said vigil understood the Defendant to be saying that the Plaintiff is not a native Doctor or traditional healer but a murderer whose stock in trade is to kill human beings while camouflaging as a traditional.

6. By reason of the premises, the plaintiff has been greatly injured in his credit, character and reputation and has been brought to public scandal ridicule and contempt.

The Plaintiff/Respondent had earlier in the pleading described himself as "a traditional healer, a big time farmer, an independent oil marketer and a philanthropist in Umudim Ikeduru Local Government Area". He stated further in the amended statement of claim that "since the publication of the above slanderous words concerning [him] he no longer commands the public respect which he formerly had an his clientele as a traditional healer had considerably diminished".

   In his amended statement of defence the Appellant vehemently denied ever uttering the alleged slanderous words either in vernacular or any other language. It is further averred in paragraphs 5 and 6 of the Amended statement of defence thus -

5. In further answer thereto the Defendant states that he never or at all said and published any of the words pleaded in paragraph 3 of the Amended statement of claim or any similar words. Rather, the Defendant in the said night vigil which was attended by many people admonished and preached to those in attendance to accept the gospel message. He informed the people that they did not gather to mourn his deceased father but to send him off. He added that they should realize that in the might [sic] name of Jesus every knee shall bow. He further stated that the Almighty God had stepped into Umudim and that Umudini was for Jesus and they must worship the Almighty God. The persons whose names appear in paragraph 4 of the Amended statement of claim did not attend. It was a Christian vigil.

6. The proceedings at the night vigil including all that the Defendant said there at were recorded with a video recorder and evidence of the same will be led at the trial.

7. In further answer there to the Defendant states that he did not call the Plaintiff a non-entity, a very dangerous man who is a murderer, a wicked man who should not be associated with either in vernacular or in any other language.

Five witnesses, including the Plaintiff [now the Respondent, testified to establish the Amended statement of claim. The defence called three witnesses.The Appellant, as the Defendant, did not testify. Thereafter both counsel delivered their addresses. The learned trial judge in his reserved judgment, after evaluation of the evidence of the parties, held inter alia at page 73 of the record-

I hold that the words, which the PW.2 and PW.3 said were spoken by the Defendant, are exactly the words the defendant spoke in Igbo Language at the night vigil of his late father. The Plaintiff told the court that his name is Chief Joseph Dibianta Iheanacho. This evidence was not denied by the Defendant. From the totality of the evidence of both the PW.2 and PW.3, it is very clear that the words spoken by the Defendant were directed at him.

The Defendant even referred to the Plaintiff by name.

   Finding the Appellant liable for slander, the learned trial judge ordered the Appellant to pay N500,000,00 as general damages to the Respondent. Hence this appeal. The Appellant filed a total of eight [8] grounds comprising five [5] original grounds and three [3] additional grounds. The grounds without their particulars are:-

ORIGINAL GROUNDS

1. The learned trial judge erred in law when he found the Defendant liable for slander in respect of words allegedly not spoken in English language when the actual words were not given in evidence.

2. The learned trial judge erred in law when he held that the alleged slanderous words were spoken in Ibo language.

3. The learned trial judge erred in law when he held that it was customary for the people of Umudim to attend night vigils when ever an indigene died. 

4. The learned trial judge erred in law when he awarded excessive general damages of N500,000.00 [Five Hundred Thousand Naira] said the Defendant.

5. The learned trial judge erred in law when he awarded excessive costs of N20,000 [Twenty Thousand Naira] against the Defendant.

ADDITIONAL GROUNDS

1. The judgment is against the weight of evidence.

2. The learned trial judge misdirected himself when he imported and relied on the evidence not led in the case in that part of the judgment where his Lordship stated thus - 

The Plaintiff who gave evidence as PW.1 told the court that he was in his residence when he heard the Defendant speak in Igbo language through a microphone which was lid the following words: "onye wu onye ahu kporo onwe ya Dibianta? Awum Dibiaukwu. Ganu kpo Dibianta Iheancho bu a rat nga mno. Ihe oma eune bu nani Igbo madu. Obia ngaa na abalia oga eji oso gbalaga.

3. The learned trial judge erred in law in that part of the judgment where His Lordship held thus Therefore on balance of probabilities; I hold that the words which the PW.2 and PW.3 said were spoken by the Defendant are exactly the words, the Defendant spoke in Igbo language. 

As it is the practice the appeal was argued on written briefs of argument filed by the parties. The Appellant's brief dated and filed on 19th April, 2006 was settled by his counsel, A.I. Nwachukwu, Esq.The Respondent's brief dated and filed on 30th May, 2006 was settled by Ibeneme Njoku, Esq. The Appellant abandoned grounds 3 and 5 of the original grounds of appeal.

From the remaining grounds of appeal he had formulated the following issues -

1. whether there was sufficient evidence before the learned trial judge to find the Appellant liable for slander. [Formulated from ground 1 of the original grounds of appeal and grounds 1, 2 and 3 of the Additional grounds of Appeal].

2. whether having regard to the Averments in the Amended statement of claim the Learned trial judge was justified in finding that the alleged slanderous words were published in Ibo language [formulated from Ground 2 of original Grounds of Appeal]. 

3. whether the damages awarded by the learned trial judge were not excessive. [Formulated from Ground 4 of the original Grounds of Appeal].

The Respondent formulated only two issues. They are:-

1. whether the learned trial judge was wrong in his findings that the defendant/Appellant actually spoke the slanderous words complained of.

2. Whether the damages awarded by the trial judge was excessive.

   I have read the two briefs of argument. Upon careful reading of both briefs I am of the opinion that the Appellant could have argued his Issues 1 and 2 together. That is the way I intend to approach.

   On his Issues 1 and 2 the contention of the Appellant is that parties are bound by their pleadings and any evidence not supported by the pleadings should be disregarded on the authority of EMEGOKWE v. OKADIGBO [1973] SC 113 @ 36; KALIO v. KALIO [1975] 2 SC 15 @ 21. It is then submitted that the words pleaded in paragraph 3 of Amended statement of claim are not indicated to be in any language; that would have enabled the Defendant to call somebody versed in that language to translate those words, and that the evidence of PW.1 that those words were spoken in Igbo language was at variance with the pleading and therefore goes to no issue. That where slanderous words are allegedly published in a language other than English language the Plaintiff must plead and prove the actual words published by the Defendant and that the translated meaning shall be proved by a sworn interpreter. And that since no witness established verbatim the slanderous words allegedly published by the Appellant the finding of the learned whether the damages awarded by the trial judge were excessive trial judge that the PW.1 heard those words in his residence in Igbo language is perverse. Finally, it is the submission for the Appellant that the decision of a court must be based on pleadings and evidence before the court, and not on extraneous matters or speculation.

   Counsel for the Respondent submitted that the Respondent and his two witnesses, who were present at the vigil, established in their evidence the slanderous words as pleaded in the Amended statement of claim. That the slanderous words were interpreted by PW.5, an interpreter attached to the court. That the contention of the Appellant's counsel's that the Amended Statement of Claim did not disclose the language the slanderous words were spoken was a misconception. He finally urged that this court should presume that the findings of the learned trial judge are right unless it is satisfied that the findings are perverse.

   The law is settled that in slander, as in libel, the precise or actual words allegedly spoken by the Defendant must be set out in the statement of claim. See BULLEN & LEAKE & JACOB'S PRECEDENTS OF PLEADINGS VOL. 1 15TH ED. Paragraph 28.15, relying on the old English case - COLLINS v. JONES [1955] 1 QB 564. The purposes for setting out the actual words verbatim in the statement of claim is to enable the Defendant know the certainty of the charge so that he can shape his defence to meet the allegation. See GATLEY ON LIBEL AND SLANDER 9TH ED. paragraph 26.13. On this principle paragraph 3 of the Amended statement of claim can not be said to be deficient. It pleads the actual words allegedly published by the Appellant. This is followed by the English translation of the words in paragraph 4 of the Amended statement of claim. These pleadings satisfy the requirement that, where the slander was published in a foreign language or vernacular, it must be set out in the statement of claim in that language and followed by a literal translation. It is not enough to set out the translation without setting out the original and vice versa. See GATLEY ON LIBEL AND SLANDER [supra] paragraph 28.18.

   The crux of this appeal is the proof of the alleged slanderous words at the trial. Appellant's placing heavy reliance on the decision of East Central State High Court decision in IBEANU v. UBA [1972] 2 ECSLR 194 submitted that if the witnesses for the plaintiff failed to prove the actual words allegedly spoken by the Defendant, the slander alleged has not been proved, At page 198 of the report Egbuna J. stated-

It can be seem from the above that neither the plaintiff nor any of his witnesses told the court the actual words alleged to have been spoken by the Defendant. It might be argued that the witnesses gave their evidence in Ibo according to the record. That may be so. But the record did not state the actual words used by the Defendant. It is not for the court to speculate, on what actual words the witnesses might have stated in their evidence. All that can be said is that from the record of proceedings there is no proof of the actual words alleged to have been used by the Defendant on the day in question.

   This dictum was influenced by an American decision of HICKLEY v. GROSSJEAN [1842 Black [Indiana] R.351 that held that where the words complained of are in foreign language the Plaintiff must prove the actual words published. Egbuna, J in the IBEANU v. UBA [supra] case seemed to hold the view that Igbo language spoken by the Plaintiff, the Defendant and the witnesses was a foreign language. It may not be the language of the court but it was not a foreign language. At best it was vernacular. Of course, there is no cause of action in slander unless the persons who heard them understood them in the language they were published. In the instant case, the witnesses, including the Plaintiff, who heard the alleged slander, testified that it was published in Igbo language which they all spoke and understood. This should be an exception to the rule espoused in IBEANU v. UBA [supra].

The PW.1, PW.2 and PW.3 all testified in Igbo language.

Their testimonies on record are the translated English versions of what they heard. The law expounded in IBEANU v. UBA [supra] seem more stringent than the common law position in the latter case of TOURNIER v. NATIONAL PROVINCIAL AND UNION BANK OF ENGLAND [1924] 1 KB 461 @ 488 where Lord Atkins, LJ held that it is sufficient in slander to prove at trial that words spoken were substantially the same as those in the particulars or statement of claim. 

   As I earlier stated the versions of the testimonies of PW.1, PW.2 and PW.3's evidence are the translated English versions.

They all rendered their evidence direct in Igbo language and they were cross-examined. The PW.2 and PW.3 were at the venue of the night vigil. The PW.1, though not at the venue, heard all the Appellant said in Igbo language through the public address system. His unchallenged evidence at page 41 lines 1 - 8 15: The Defendant said in Ibo:

Who is that man who calls himself Dibianta [small herbalist]. I am Dibiaukwu [big herbalist]. You people should go and call Dibianta Iheanacho to come here. Dibianta Iheanacho is a rat where I am.

All he knows is how to kill a person. If he, comes here this night he will run away.

I was in my house when I heard the voice of the Defendant through the microphone that very loud. 

The evidence of the PW.2 at page 45 substantially corroborates the PW.1 account. In his testimony he said that the Defendant "said all these things in Igbo". This material evidence was left unchallenged. The account of PW.3 also corroborates the PW.1 and PW.2. The substance of PW.3's evidence was unchallenged.

The learned trial judge, in my view, can not be faulted in his finding that the Appellant published the slanderous words pleaded in the Amended Statement of Claim about or concerning the Respondent in Igbo language. The PWs.1 - 3 all heard the words themselves. They all testified unchallenged that the words were published in Igbo language, which they all understood.

The PW.5, a court interpreter, gave a sworn interpretation or translation of the words pleaded. The interpreted version tallies substantially with the words pleaded in paragraph 4 of the amended statement of claim as the translation of the slanderous words pleaded in paragraph 3 of the Amended statement of claim. The credibility of his evidence is not impugned. Appellant did not call any other Igbo language interpreter to fault or contradict the PW.5's translation. He had all the time and opportunity to do this.

The evidence of the Plaintiff/Respondent was overwhelming. The burden of refuting them fell on the Appellant. Inspite of the Appellant pleading in paragraph 8 of the Amended statement of defence that all what "he said during the night vigil were recorded in a video recorder" and that evidence on the same will be led at the trial, the Appellant withheld this very material evidence. Issues were joined on whether the Appellant uttered the alleged slanderous words. He denied, uttering same and insisted that the video recording of the proceeding at the night vigil will exonerate him. The play back of the video recording was a piece of evidence which could be produced by the Appellant. He withheld it. Therefore invoking section 149 [d] of the Evidence Act the reasonable presumption will be that the Appellant withheld that evidence because if it were produced it would be unfavourable to him. See OTTIH v. NWANEKWE [1990] 3 NWLR [pt.140] 550 @ 562 E - F. In holding that the Appellant withheld material evidence I am conscious of the law that if the Plaintiff failed to prove his claim, or his evidence is defective; the Defendant does not need to respond to the claim: see OYEDEJI v. OYEYEMI [2008] ALL FWLR [pt.445] 1769. In the instant case the Respondent, as Plaintiff, having established the slanderous words to ground his claim the onus shifts unto the Appellant, as Defendant, to rebut or refute. This burden is not discharged by withholding material evidence or facts pleaded.

The decision appealed, in my view, is based, on pleadings and evidence before the learned trial judge. It is not perverse. There is therefore no basis for this, court to interfere. The law on this is quite clear. The appellate court will not ordinarily interfere with the findings of the trial court except in circumstances such as where the trial, court has not made proper use of the opportunity of seeing and hearing the witnesses at the trial or where it drew wrong conclusion from the credible evidence at its disposal, or where the findings are perverse or unsupported by evidence. See MAMMAN v. SALAUDEEN [2005] 24 NSCQR 360 @ 381.

   Appellant's issues 1 and 2 deserve to be, and they are hereby resolved against him in favour of the Respondent.

   The last and final issue is whether the damages awarded by the trial court were excessive. On this it was submitted for the appellant, and correctly too, that damages are compensatory, the notion being to place the Plaintiff in as good position, so far as money can do it, as if the matter complained of had not occurred; and that the duty of the court is to do the best it can to ensure that the sum it awards fully compensates the Plaintiff for the damages caused by the publication.   The authority is OMO-SAGIE v. OKUTUBO [1969] 2 ALL NLR 175 @ 180. I agree with the submission of the Respondent's counsel that it is not enough to say as Appellant's counsel did, that the sum awarded is excessive without more. An Appellant attacking the excessiveness of damages awarded must go further to show how excessive the sum awarded is. 

   In awarding N500,000,00 as general damages in favour of the Respondent, the learned trial judge took a number of factors into consideration, including the fact that the slander imputed to the Respondent a very serious crime of murder; and that the Respondent was a prominent community leader in Ikeduru Local Government Area and that the slander had seriously hurt the Respondent's personality. The matters the learned trial judge took into consideration are not extraneous. They are borne by the record. It has not been shown how wrong or improper the learned trial judge exercised his discretion in award of N500,000.00 general damages in favour of the Respondent. 

The burden is on the appellant to show that the award was either too high or that it was based on wrong principle or that it was not borne by credible evidence: see INTERNATIONAL MESSENGERS NIG. LTD v. PEGOFOR IND. LTD [2005] ALL NLR 234. As a rule the appellate court will not interfere with an award of damages except it is shown that the award was based on erroneous estimate of the damages the Plaintiff was entitled to: SOLEL BONEH NIG LTD v. AYODELE [1989] 1 NWLR [pt.] 549 @ 564; ZIK'S PRESS LTD V. IKOKU 13 WACA 188. Where there is credible evidence to sustain the award by the trial court, the award will not be disturbed. See INTERNATIONAL MESSENGERS NIG. LTD v. PEGOFOR IND. LTD [supra). It is not for the appellate court, in the circumstance, to substitute its discretion or mind for that of the trial court. Its plain duty is merely to examine the record to see if the trial court properly or improperly estimated and awarded the damages.

   The appellant, on this issue, has failed to establish that the N500,000.00 damages awarded to the Respondent by the trial court was improperly done. Accordingly, I resolve this issue against the Appellant in favour of the Respondent.

   On the whole the appeal lacks substance and it is hereby dismissed. I hereby award costs at N40,000.00 to the Respondent against the Appellant.

TIJJANI ABDULLAHI, J.C.A.: I read before now the lead judgment of my learned brother, Eko JCA, just delivered and I entirely agree with his reasoning and conclusions dismissing the appeal for lack of merit. 

   His Lordship had covered the entire relevant issues raised by the parties, However for support and emphasis, I will add a few words, It is trite that he who asserts must prove, In other words, the burden of proof in an action or proceedings lies on that person who would fail if no evidence at all were given on either side. See Section 136 of the Evidence Act. 

   It is instructive to observe from the records of the trial Court that the Respondent as Plaintiff at the lower Court called witnesses who gave a first hand account of what transpired the night the slanderous publication was made by the Appellant.

   That aside, the Appellant as Defendant copiously pleaded in his statement of defence that he would rely on the video recording of the night vigil and that same would be relied upon at the hearing of the case but he never produced nor tendered the video recording he heavily relied upon.

   In the light of the foregoing, I too hold the view that the Respondent had on preponderance of evidence proved his claim in the lower Court and the learned trial Judge was right in entering judgment in his favour.

   It is for this reason and the more detailed ones contained in the read judgment of my learned brother that I allow the appeal and abide by the order for cost contained therein.
 

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the benefit of reading in draft the judgment of my learned brother, Ejembi Eko, JCA just delivered. He has meticulously considered and resolved all the issues submitted for determination in this appeal. I agree with his reasoning and conclusion.

   I am satisfied from the pleadings of the parties, the evidence led in support thereof and the respective briefs of argument that the respondent established his case before the court below upon a preponderance of credible evidence as required by Section 135, 136 and 137 of the Evidence Act. The appellant failed to discredit any of the respondents' witnesses and offered no credible evidence to support his defence.

   I agree with my learned brother in the lead judgment that the failure to produce the video tape of the event, which was pleaded in paragraph 8 of the statement of Defence (see page 10 of the record), dealt a devastating blow to the appellant's case. By virtue of Section 149 (d) of the Evidence Act, the failure to produce the said video tape raised the presumption that if the tape were produced it would have been unfavourable to the appellant. The said provision is invoked against the appellant in this case. 

   With regard to the claim for damages, the law is settled that a discretion properly exercised by a trial court will not be lightly interfered with by an appellate court even if the appellate court was of the view that it would have exercised the discretion differently. It is only when a trial court exercises its discretion upon a wrong principle or mistake of law or under a misapprehension of the facts or took into account irrelevant or extraneous matters or excluded relevant matters thereby occasioning injustice, that an appellate court will not abdicate its duty to interfere with the exercise of its discretion in order to prevent injustice. See: Ogolo v. Ogolo (2006) 2-3 SCNJ 235 at 245 lines 20-30; also found in (2006) 5 NWLR (972) 162; Oyekanmi v. NEPA (2000) 15 NWLR (690) 414 at 438.

At pages 75 - 76 of the record, after considering the law on the award of damages, the learned trial Judge held:

"General damages are such as the law will presume to be the direct, natural or probable consequence of the act complained of.... A direct consequence of the slander committed on the plaintiff by the defendant is the hurting of the plaintiff's ego. Plaintiff told the court that he was a public figure in Ikeduru Local Government and a Philanthropist. He told the court that he renovated this court hall where this judgment is being read. The defence did not contradict the foregoing evidence. Plaintiff further told the court that it was because of this dent on his ego that he came to court and this goes with all the antecedents of initiating an action in court."  

   Based on this finding the learned trial Judge awarded the sum of N500,000.00 as general damages. The appellant, beyond contending that the amount is excessive, did not advance any reasons to justify the interference of this court with the award.

   For these reasons and the more detailed reasons contained in the lead judgment, I also find this appeal to be devoid of merit. I hereby dismiss it and affirm the judgment of the trial court delivered on 16th June 2004.

   Costs of N40, 000.00 are awarded in favour of the respondent against the appellant. 

     Appearances