Chief Tubowayanaba Frank Oruwari V. Mrs. Ine Osler (2005)
LawGlobal-Hub Lead Judgment Report
PIUS OLAYIWOLA ADEREMI, J.C.A.
The appeal here is against the judgment of the High Court of Rivers State holden at Degema Judicial Division in Suit No. DHC/23/94 delivered on the 17th of December, 1997. Suffice it to say that the successful plaintiff before the Court below also cross-appealed against part of the judgment.
The plaintiff (hereinafter referred to as the respondent/cross-appellant) had claimed against the defendant (hereinafter referred to as the appellant/cross-respondent) a total sum of N40 million (Forty Million Naira) being damages for slander in that the appellant/cross-appellant according to the respondent/cross-appellant, at different times and places falsely and maliciously published and spoke of her (respondent/cross-appellant) the following words.
“On the 12th day of December, 1992 in Oruwari family meeting:
‘INOGOGO ORUWARI A KO A PIRIM KE IGWURUTA WARI NAMA I BIRI BE IGBIGI FIA NAMINA, NGBA A LAWYUER IGBIGI ME AGBE TE KE POLO PIRITE –
– Meaning in English language:
‘If Inegogo Oruwari has not embezzled the moony I gave her to develop Igwuruta Estate. I would have sponsored the lawyers’ fee for the Compound.”
On or about the 7th day of May, 1994 in the presence of Clement Ibialabo and others:
“SAKI MENGBA I PA BE BE I BIARI IDIGI, INEGOGO ORUWARI IGBI FI TE DIRI KO NNA PIRI TE IBA TE DOKI ORI KRABIO A PA KURO, TE MEGI MA BUROARI – literally translated into English Language to mean:
“Every time you always say you are sick, look at me since Inegogo Oruwari has been giving money to people to kill me with medicine I am still strong and I am walking about.”
Again on 8th of April, 1994, in the presence of Ms. Nwankwo and Mr. Abiye John and before the plaintiff at Amachree Samare Buguma, the appellant was alleged to have spoken the following words:
“O MINE A SULE… OOO! O MINE A SULE…. OOO! INEGOGO ORUWARI FURUBA, MIE A ARI NGO KOM ARI BARA, JAPU INOMA MABURO MIE A PA KE OWERRI NAPU INOMA BARA, A PILI INOMA TE. O MINE A SULE OOO! O PIKI A SULE OOO! O MINE A SIN FURUBO, FURUBO.” which according to her when translated means:
“Shame her, shame her. She is a thief that is how she makes her money-doping people. This is how she duped Owerri people and she also duped me. Shame her, shame her, again call her a thief, THIEF.”
Again on 28/9/93, the appellant/cross-respondent was alleged to have falsely ad maliciously published and spoke of and concerning the respondent/cross-appellant the following words in the presence of Seye Briggs and some customers of Township Community bank, Port Harcourt Court.
“I could not have come to wait for the draft for my rent if Inegogo Oruwari has not gone to embezzle the money I gave her to develop Igwuruta land for me. This is how she goes about embezzling people’s money.”
Pleadings, in terms of amended statement of claim, further amended statement of defence which was styled as Re-Amended Statement of Defence and reply to statement of defence, were filed and exchanged between the parties; the first two with the leave of Court. Suffice it to say that the claim was also amended, with the leave of Court. Both sides called evidence in support of the averments in their different pleadings sequel to the taking of the addresses of the respective counsel on both trial judge in a reserved judgment delivered on the 17th of December, 1997 partially granted the reliefs sought by the plaintiff/respondent/cross-appellant by awarding her N250,000.00 appellant by awarding her N250,000.00 (Two Hundred and Fifty Thousand Naira) against the defendant/appellant for defamatory of character of the plaintiff/respondent for only the words said to have been published or the 7th of May 1994 as pleaded in paragraph 37 of the amended statement of claim. Of course, an order of perpetual injunction was made restraining the defendant/appellant from repeating those words. Suffice it to say that the words claimed to have been allegedly published or uttered by the defendant/appellant were not found to have been proved.
Being dissatisfied with the said judgment appealed there from to this Court upon a Notice of Appeal dated 19th December 1997 which carries five grounds. The plaintiff/respondent also being dissatisfied with the parts of the judgment wherein the learned trial Judge held that there (plaintiff/respondent) failed to prove the truth of the facts and matters pleaded in paragraph 38 of the amended statement of claim and said to be defamatory and also the award of N250,000.00 for the defamation of the plaintiffs character as pleaded in paragraph 37 of the amended statement of claim cross-appealed upon a Notice of Cross-Appeal dated 17th March 1998 which carries three grounds. Distilled from the five grounds of appeal contained in the Notice of Appeal of the appellant are five issues which, as in his brief are as follows:
“(1) Whether it is a sine qua non for the plaintiff to call an interpreter as a witness to specifically interpret the meaning of the Kalabari Language (foreign language) in proving the alleged defamation which was uttered in Kalabari Language.
(2) Whether the evidences (sic) of PW5 and PW9 are materially contradictory as to render them unreliable.
(3) Whether the learned trial Judge’s premises for jettisoning the defence of alibi (i.e. the mathematical deductions) is correct and also tenable in law not being an issue before the Court. (4) Whether the learned trial Judge can, in the absence of any proof of, a threat to plaintiff’s legal right vide a previous proved defamation by defendant grant a perpetual injunction restraining the defendant from defaming the plaintiff.
(5) Whether the learned trial Judge can rightly grant such an exemplary damages of N250,000.00 in the absence of any pleadings of any reputation or any exemplary or special, damage to the plaintiff’s reputation.”
In her brief of argument the plaintiff/respondent raised four issues which as contained in her brief are in the following terms:
“(1) Whether the finding of the Court below, that the publication of 7th May, 1994, was proved, was against the weight of evidence.
(2) Whether the contention of the defendant that the slanderous words uttered in Kalabari were not translated into the English Language at the hearing is correct.
(3) Whether the award of N125,000.00 damages was excessive.
(4) Whether it was a wrong exercise of discretion to make an order of injunction restraining the defamation of the slander against the plaintiff.”
As I have earlier said, the plaintiff/respondent cross-appealed and she identified three issues for the determination of the cross-appeal. As set out in her brief of argument, they are in the following terms:
“(1) Did the trial Court properly evaluate the evidence tendered in respect of the slander of 8th April, 1994 outside the King Amachree Hall pleaded in paragraph 38 of the amended statement of claim before coming to the conclusion that the slander was not proved?
(2) Was the trial Court right in law in holding that the plaintiff did not prove the slander in the Port Harcourt Township Community Bank pleaded in paragraph 39 of the amended statement of claim having regard to its findings in the evaluation of evidence that the words were uttered.
(3) Was the award of N250,000.00 damages for the slander of 7th May 1994, nor an under-estimate of the compensation properly due to the plaintiff.”
In his brief of argument, the cross-respondent declared his adoption of the three (3) issues raised by the cross-appellant as set out supra.
When this appeal came before us on the 8th of February 2005 for argument while Mrs Anyamene-Ezugu learned counsel for the cross-appellant was present no counsel appeared for the appellant/cross-respondent. Since all briefs were before us, Mrs. Anyamene-Ezugu urged us to take the appeal and the cross-appeal notwithstanding that the counsel for the appellant was not in court to argue the appeal of his client. Satisfied that all parties were served with hearing notices and all the briefs were in pursuant to order 6 Rule 9(5) of the court of Appeal Rules 2002, we called on the learned counsel for the respondent/cross-appellant to argue her client’s cross-appeal and present the reply to the appeal. After identifying all the briefs in the file, learned counsel for-the cross-appellant sought and obtained the leave of this Court to withdraw the respondent’s brief filed on 5th June 2001. She referred to, adopted and relied on the respondent/cross-appellant’s brief deemed to have been properly filed on the 8th of April 2003 and urged that the main appeal be dismissed while the cross-appeal be allowed.
I have had a close study of the issues formulated for the determination of main appeal and it is my considered view that issue No. 1 on the appellant’s brief can be taken together with issue No. 2 in the respondent’s brief; while issues Nos. 2 and 3 on the appellant’s can be taken together with issue, No. 1 on the respondent’s brief. Issue No. 4 on each of the brief are identical; I shall therefore address them together. Finally, issue No. 5 on the appellant’s brief shall be considered together with issue, No. 3 on the respondent’s brief.
On issue No. 1 in his brief, the appellant argued that the defamatory words were uttered in Kalabari Language which language, it was submitted, was a foreign language to the Court, the language of the Court being English Language. No interpreter was called as a witness sworn to prove that the translation of the words in Kalabari Language as given in the amended statement of claim was correct. That was fatal to the case of the cross-appellant it was submitted while relying on GATLEY on LIBEL and SLANDER (8th Edition) page 531 at para. 1297. In opposing this argument the plaintiff/respondent/cross-appellant argued that the actual words uttered by the defendant were pleaded in paragraph 37 of the amended statement of claim with the English translation. It was further argued that a sworn interpreter who understood Kalabafi Language translated into English the words in Kalabari, which DW5 said he heard and was so recorded. The accuracy of the translation was not challenged by the defendant/appellant in his pleadings; the translation must be deemed to have been admitted.
The words said to have been falsely and maliciously spoken and published by the defendant/appellant on the 7th of May 1994 were copiously quoted in Kalabari Language with the translation into English Language well set out in the said paragraph 37 of the amended statement of claim. The defendant/appellant’s reaction to the aforementioned plaintiff/respondent’s averment is contained in paragraph 17 of the further amended statement of defence, which reads:
“Defendant denies paragraph 37 of the statement of the statement of claim. It is one of the plaintiff’s characteristics and fraudulent lies. Defendant could not have said any word in the presence of Clement Ibialabo because he did not even meet him on the 7th of May, 1994 as the defendant with his wife were undergoing their spiritual confinement at their Church between 30th April, 1994 and 8th May, 1994 and thus confined to the Church premises. The defendant will show at the trial that Clement Libialabo is hired to tell that story. Defendant shall show at the trial that must, if not all of plaintiff’s witnesses were bought over because of one relationship or the other no strained construction.”
In the above quoted paragraph the defendant/appellant’s defence is that he was undergoing spiritual confinement with his wife at their Church between 30 April 1994 and 8th May 1994 and so he could not have spoken or published those words to Clement Ibialabo and others on the 7th of May 1994 as he was not present there.
After reviewing exhaustively the evidence led by both sides, the learned trial Judge in his judgment on the slanderous words allegedly used on the plaintiff/respondent by the defendant/appellant on 12th December 1992 said:
“From the evidence before mc, it is clear that only the plaintiff testified to the fact that the defendant defamed her on the 12th December 1992 at a meeting of Oruwari House. The evidence of the plaintiff and that of her witness PW11 (Chief R. R. Briggs) are therefore contradictory with respect to the actual date this their family meeting both places.
The date, month and year this meeting took place, is very material to the proof of the fact that there was actually a meeting of the Oriawari House at which the slander, now in issue was published.
Whereas the plaintiff said this meeting took place in the ninth of December, plaintiff’s witness PW11 said it took place a few weeks before 11th May.”
Whereas the plaintiff said it took place in 1992, the evidence of PW11, suggest that it took place in 1991.
These differences are quite material. They cast doubt on the accuracy of plaintiff’s story.
I contrast the evidence of the defendant and that of his witness DW3 with regard to this incident agree or tally. Both of them claimed that as at December, 1992, the defendant was no longer attending meetings of the Oruwari House. Both of them agree that on the 11th of May, 1991, defendant did not attend the meeting of Oniwari House at which meeting or plot of their family swampland, was allocated to the plaintiff. Both of them agree that defendant was not happy with this allocation when he heard it.
If defendant was not present at the meeting of 12th December, 1992 then he could not have made any remarks slanderous or otherwise at that meeting…
Since the defendant denied making any slanderous remarks concerning the plaintiff, the ONUS is on the plaintiff to prove that he did so. From the facts before me, I am satisfied that the plaintiff has not discharged the burden as required by law. I accordingly find as a fact that the plaintiff has not succeeded in proving that the defendant on the 12th of December 1992 at the Oruwari Family meeting slandered her person.
Claim 1 as contained in paragraphs 42 of the plaintiff’s statement of claim accordingly hereby fails.”
On the slanderous words allegedly made by the defendant/appellant against the plaintiff/respondent on 8th April 1994; after reviewing the evidence led, the learned trial Judge held:
“After going through the submissions, of plaintiff and defendant’s counsel, I was not in doubt that the evidence of the plaintiff failed to resolve some lingering doubts as to the accuracy of plaintiff’s evidence on this incident.
The first is, if the plaintiff walked out of the Hall immediately this judgment of Sekobiri was pronounced, leaving the defendant behind, is it possible for her to remain within the viciniy of the Hall till the defendant came out?………
It is also true that sometime elapsed between the time plaintiff “walked out” and the time the defendant left the Hall. What cannot be said with certainty is that defendant uttered the defamatory words he was alleged to have uttered by the plaintiff … The only truth I am sure of is that a great doubt exists as to the exact words plaintiff and defendant exchanged after this judgment or as to whether defendant actually spoke to people in the terms, pleaded in paragraph 38 of the amended statement of claim or not. ..:
I accordingly hold that the slander therein alleged has not been proved.”
Finally, for the slander pleaded in paragraph 39 of the amended statement of claim alleged to have been made by the defendant/appellant, after reviewing the evidence led by both sides, the learned trial Judge held as follows:
“After going through the evidence of PW1 (Seiye Briggs) which evidence is the most relevant to the proof of the allegations contained in paragraph 39 of the amended statement of claim I was at a loss to arrive at a justification for the plaintiff pleading as she did in paragraph 39…. It can be seen therefore that this pleading of the plaintiff as contained in paragraph 39 is BAD in law and infact inerrably BAD. This is because as pointed out above it is at variance with the evidence PW1 to whom this alleged slander was published and secondly because Kalabari language being a foreign language in this Court, the need for the utterances of the defendant who spoke to be pleaded and proved as they were uttered is imperative. Also the need for a sworn interpreter knowledgeable in Kalabari language to be called to interpret it to the Court is indispensable. Unfortunately, plaintiff did not do this. Since the evidence of PW1 adduced in support of paragraph 39 does not tally with the slander allegedly made by the defendant against the plaintiff it will be safer for me to hold that that paragraph has not been proved, even though PW1 evidence by my evaluation, is clearly evidence of truth.
I shall without dwelling much on the defence offered by the defendant hold that that paragraph has not been proved.”
I shall start the consideration of these two issues by saying that in this part of the world, the official language of the court is English Language. I agree with the submission of the appellant in his brief that it is now trite law as stated in GATLEY ON LIBEL AND SLANDER (8th Edition) page 531 at para. 1297 that:
“Where the words complained of are in a foreign language, the plaintiff must prove the actual words published. He must also prove by an interpreter sworn as a witness that the translation given in the statement of claim is correct unless the fact have been admitted.” (Italics mine for emphasis).
Paragraph 17 of the further amended statement of defence which I have reproduced supra, while denying the making of the alleged slanderous statements in paragraph 37 of the amended statement of claim, the words of which were quoted in Kalabari Language in the aforesaid paragraph of the amended statement of claim, the defendant/appellant did not challenge the correctness or accuracy of those words into English Language. Let me say that a plaintiff’s averments of facts must be met by the defendant frontally and categorically. The rules of pleadings do not allow a defendant to be evasive in his answers to the facts averred by the plaintiff. Once a defendant refuses to meet the facts directly, those facts are deemed to be admitted by a defendant, see SOLANA v. OLUSANYA & ORS. (1975) 6 SC 55. And a fact admitted or deemed to have been admitted by a defendant in his pleading is taken as established and should form one of the agreed facts of the case upon which the trial Judge must act without calling on the plaintiff to prove it all over same having been deemed admitted, in law, sec OLUBODE v. OYESINA & ORS. (1977) 5 SC. 79. Again, Clement Ibialabo to whom it was said that the alleged slanderous words were made was called as witness PW5. At page 95 of the records, the said Clement Ibialabo was recorded as having been sworn on Bible and gave his evidence in Kalabari with the aid of an interpreter. This suggests that Clement Ibialabo was an illiterate, in English Language. So, an interpreter was provided for him. Again, let it be said that the law demands that Records of proceedings must ex facie show that an interpreter was made available in Court where an illiterate in English Language is testifying, see (1) PANALPINA v WORIBOKO (1975) 2 SC. 29 and (2) ANIMASHAUN v U.C.H. (IBADAN) (1996) 10 NWLR (Pt.476) 65. I have by this gone an extra mile to show that issue No. 1 on the appellant’s is non sequitur, it is hereby resolved against the appellant; while I resolve Issue No.,2 raised by the respondent in her brief for the determination of the appeal, is resolved in her favour.
On issues No. 2 and 3 in the appellant’s brief the appellant had submitted that the testimonies of PW5 and PW9 under cross-examination were materially contradictory as not to attract any evidential value. On the refusal of the Court to believe the alibi set up by the defendant/appellant, it was submitted that the trial Judge’s findings were not based on the facts proved before him on the issue of ALIBI raised by the defendant/appellant. Briefly, the respondent in her brief submitted that the trial Judge carefully and correctly evaluated the evidence on the issue of ALIBI and came to the correct conclusion.
There is nothing esoteric in a plea of alibi, which is generally put up in a criminal case. The plea postulates that the person could not have been at the scene and only inferentially that he was not there at the material time. In criminal cases where as I have said the plea is usually put up, the law is now trite that if the prosecution adduces sufficient and accepted evidence to fix the person at the scene of crime at the material time, that alibi is undoubtedly and physically demolished. I will like to say that the same principle applies where the plea is set up in a civil case. Perhaps I need to say that the standard of proof to establish the defence of ALIBI is one based on the balance of probabilities, see OBIODE & ORS v THE STATE [1970] 1 ALL NLR 35. The 5th PW – Clement Ibialabo in his testimony said he saw the defendant/appellant physically on the 7th of May 1994 at Oweredaba’s Compound and that the defendant/appellant also saw him. He (PW5) was emphatic in saying that the defendant/appellant uttered the slanderous words to his hearing on that day. Though he (witness) was cross-examined, he was not shaken on these material issues. Again, the PW9 – one Jack who claimed to know the defendant very well and that both of them were from the Brigg’s Compound and both of them had worked together in the Customs and Customs and Excise Department said in his testimony.
“I remember the 7th day of May, 1994. That day I saw the defendant at Black Duke’s Compound, Abonnema… As we were walking towards the waterside we passed by Black Duke’s Compound. We saw the defendant; he was talking to a lady in Kalabari language. What she was telling that lady when interpreted into English language is to the effect. ‘Every time you complain of being sick look at me. Inegogo Oruwari has eaten my money and given people claim to kill me. But I am still strong and waling about.”
This vital evidence was not demolished when he was cross-examined. The defendant in support of his defence of alibi said in his testimony:
“I went into the Church premises for this confinement on Saturday 30th April, 1994 at 7 am and started doing what I was asked to do. I remained in confinement till Sunday 8th May, 1994, was allowed to go home that day at about 1pm. I did not therefore meet or see Mr. Clement Ibialabo at Duke’s Compound on 7th May, 1994 nor did I defame the plaintiff in his presence.”
The only witness called by the defendant/appellant on the issue of ALIBI was DW2 – one George a Catechist in the Church he testified that the defendant was in confinement for one week 1n the Church and that he was with him there throughout. He said the defendant came to the Church premises on 30th April 1994 and was there till Sunday 8th May 1994, when he (defendant) left at about l pm. The trial Judge who had the singular opportunity of seeing these witnesses testify before him after copiously reviewing the testimonies went ahead to believe that version of the plaintiff/respondent that the defendant was physically present and uttered the slanderous words to the hearing of at least the two witnesses called by the plaintiff. I have reviewed the findings of the trial Judge supra. There is no basis, in law, for me to fault those findings. I accordingly answer Issue No. 2 on the appellant’s brief in the negative. Issue No. 3 thereof is answered in the affirmative. Issue No. 1 on the respondent’s brief is answered on the negative.
I now proceed to treat Issue No. 4 on each of the two briefs. The plaintiff in canvassing argument that an order of injunction was wrongly ordered in this case by the trial Judge in that, according to her, the plaintiff/respondent had failed to prove the doing of an act by it,, defendant/appellant which was fatal or inimical to her interest. On the other hand, the plaintiff/respondent submitted that the ordering of an injunction by the trial Judge was with justification having regard to the evidence before the Court. It is the law and well settled for that matter that where damages have been awarded for trespass to land and there is an ancillary claim for injunction, the Court will in the interest of justice grant that claim:
“(1) to prevent multiplicity of suits or
(2) to prevent irreparable damage or injury or irremediable mischief.
Libelous or slanderous words to whoever they may be directed constitute an assault or trespass on the character and pride of that person. They constitute an unjustifiable invasion of the reputation of that person. And no amount of money averred can restore the reputation of any person so assaulted to the original position. Damages have been awarded in this case in favour of the plaintiff/respondent. The attitude of the Court, in such cases, has always been that where averred of damages is considered to be an inadequate remedy, as is always the case in matters of libel or slander, the protection of the reputation of that person from being further damaged is the demand of complete justice in the matter. This could only be achieved by granting an injunction, See OBANOR v OBANOR (1976) 2 SC. I agree with the reasoning of the learned trial Judge in ordering an injunction, that going by the evidence before him, there was a threat to the plaintiff/respondent’s legal right to have her reputation and dignity remain inviolate. Issue No. 4 on the appellant’s brief is therefore resolved against him while, Issue No. 4 on the respondent’s brief, which is seen or to that of the appellant is resolved in favour of the respondent.
Issue No. 5 on the appellant’s brief, which queries the rationale for the award of N250,000.00 in favour of the plaintiff/respondent for the slander in the absence of what he termed as pleadings on reputation of the successful party or any exemplary or special damage and which issue is similar with Issue No. 3 raised by the respondent; the appellant argued – his brief that there was no pleading of the reputation of the appellant has been affected by the defamation. The award of N250,000.00 was, according to him, wrong in law while placing reliance of the appellant has been affected by the defamation. The award of N250,000.00 was, according to him, wrong in law while placing reliance on the decision in OVERSEAS CONSTRUCTION LTD V CREEK ENTERPRISES LTD (1985) 3 NWLR (Pt. 13) 407. In her reaction to his submission, the respondent through her brief submitted that the learned trial Judge did not describe the award as exemplary and no case was made for the reduction of the award of N250,000.00. When money is lost, nothing is lost, when property is lost, I dare say nothing is lost, but when a man’s reputation or dignity is lost or damaged a great deal has been lost which cannot be adequately calculated or compensated in terms of money. Going by the value of our currency in the present day, I dare say that N250,000.00 is not much. And, again guided by the dictum of the West African Court of Appeal in ZIK’S PRESS LTD v IKOKU [1951] 13 WACA 188 at page 189 which reads:
“But it is equally clear that the appellate Courts are very reluctant to exercise this power and to attempt to re-assess the amount of damages which the trial Court has given and they will never do so unless it can be established that at the trial the Judge proceeded upon wrong principle of law or that is award was clearly an erroneous estimate, since the amount was manifestly too large or too small.”
I am of the clear view, that this Court (an appellate Court) must and will not interfere with the award of N250,000.00 in this case. Having resolved all the issues against the appellant, the appeal must consequently, fail. It is hereby dismissed.
As I have said earlier in this case, the respondent cross-appealed against the decision of the trial Judge that the slanders of 8th April 1994 and 28th September 1993 pleaded in paragraphs 38 and 39 of her amended statement of claim were not proved; she also cross-appealed on the award of damages for the slander said to have been proved.
The alleged slanderous words said to have been uttered by the cross-respondent on the 8th of April, 1994 and 28th September 1993 as pleaded in paragraphs 38 and 39 respectively which I have reproduced supra as they constitute issues Nos. 1 and 2 in the brief of the cross-appellant convince me that I can take those two issues together. Suffice it to say that the three issues identified by the cross-appellant for determination by this Court were adopted by the cross-respondent in his brief of argument. From the record of proceeding it is obvious that complaint of the cross-appellant was as to the alleged blaring of some slanderous words to the drummers whom she said the cross-respondent had brought to the scene to the square when he (cross-respondent) came out of the King Amachree Hall with his drummers immediately the judgment of Sekobiri was pronounced. Based on the admission of the cross-appellant that she walked out of the King Amachree Hall immediately the judgment was pronounced leaving the cross-respondent behind it would be against all good reasoning to hold that she went outside that Hall for the victorious cross-respondent to come out. The certainty must have fled the scene realizing that the vast majority of people present there were cross-respondent’s supporters. If the cross-respondent was carried shoulder – high in that seemingly victorious atmosphere having succeeded, which fact, was confirmed by DW1, it is impossible to ascertain, with any measure of exactitude what words were said by the cross-respondent, if he ever said anything in that atmosphere. I cannot therefore fault the reasoning and conclusion of the learned trial Judge that the slanderous words of 8th April ,1994 were not proved. Issue No. 1 on the cross-appellant is consequently resolved against her.
On issue N. 2, which relates to the slander pleaded in paragraphs 39 of the amended statement of claim, which is in the following terms:
“I could not have come to wait for the draft for my rent if Inegogo Oruwari has not gone to embezzle the money I gave her to develop Igwurata land for me. This is how she goes about embezzling people’s money.”
PW1 who is the star witness called in proof of the slander in paragraph 38 said:
“The defendant, after concluding his business with the bank that day, sat in my office waiting for the cashier to attend to him… While still waiting, he told me that he was in a hurry to go back to Abonema. When I asked him why the hurry, he told me that for sometime now he had not spend night at Port Harcourt. This is because according to him, Ine Oruwari (plaintiff) tried to kill him in his Estate here at Port Harcourt, one night. That since that night he had not slept or spent a night at Port Harcourt…. The defendant then went on to add that he is suffering now, trekking about without a car of his own, while the plaintiff is comfortably enjoying his money. I asked the defendant to explain what he meant by that.
Defendant then said that he gave money to the plaintiff to build for him an Estate at Igwuruta. The plaintiff built this estate and has now claimed its ownership.”
I cannot but fully agree with the learned trial judge that the alleged slandereous words credited to the cross-respondent and pleaded in paragraph 39 of the amended statement of claim are totally at variance with the evidence of PW1. The learned trial Judge was therefore right, in law, to have held that the alleged slanderous words pleaded in paragraph 39 were not proved and he consequently dismissed, rightly, in my view, that leg of claim. Issue No. 2 is therefore resolved against the cross-appellant.
Issue No. 3 on the cross-appellant’s brief poses the question whether the award of N250,000.00 damages for the slander of 7th May, 1994 was not an under-estimation of the compensation properly due to the appellant. A similar issue was raised by the appellant in his argument. I still stand by what I said, as to the position of the law, in treating that issue. The ZIK’S PRESS case cited supra and of course the decision in UYOL v. EGWARE (1974) 1 ALL NLR (Pt. 1) 293 are in support of the position I have maintained. Suffice it to say that that Issue No. 3 is hereby resolved against the cross-appellant.
In conclusion, having regard to all I have said about the issues raised in the appeal and the cross-appeal; the appeal must be dismissed and it is hereby dismissed; similarly, the cross-appeal must be dismissed and it is hereby dismissed. Both sides shall bear their costs.
Other Citations: (2005)LCN/1720(CA)
