Deacon Joshua Oyedemi Adeyemo & Anor V. Prince/prophet Ezekiel Adejumo Akintola (2003)
LawGlobal-Hub Lead Judgment Report
VICTORA AIMEPOMO OYELEYE OMAGE, J.C.A.
This appeal is against the judgment of Jimoh, J. delivered in the Ogbomoso High Court on 8th December, 1996. It is in a claim by the respondent against the appellants for the sum of five million Naira damages jointly and or severally:
“for defaming the plaintiffs character at Ile Babafila Ajawa, in the afternoon of 26/12/95; when the plaintiff went to look for his father and the 1st defendant accused the plaintiff of not saying (to him) “Kabiyesi.” On the entry of the plaintiff to the house of the 1st defendant. The first defendant ordered the 2nd defendant to lock up the entrance door of the defendants’ house and both of them started to shout thief, thief, thief, thief on the plaintiff. While shouting thief, thief on the plaintiff, which shouting attracted all the members of the defendant’s household and several persons in the environs trooped out and stood around, apparently to assist in catching the thief.
(11) N200,000.00 damages against the defendants jointly and severally for unlawful imprisonment of the plaintiff in the defendants house at Ajawa in the afternoon of 26/12/95; in breach of the plaintiffs fundamental rights.”
At the trial, the plaintiff testified and called five witnesses; the defendants also testified with one witness including the father of the plaintiff, the 1st and 2nd defendants testified in their defence. After reviewing the evidence; the learned trial Judge ruled thus “After a very careful consideration of the pleadings, and the oral evidence before me, I am of the opinion that the plaintiff has proved his case on the balance of probabilities. His case succeeds. I award N50,000 damages against the defendants jointly and or severally for defaming the plaintiffs character at Ile Babafila Ajawa in the afternoon of 26/12/95, when the defendants shouted ole, ole, ole.” In the course of the proceedings before judgment was delivered the court made an order to amend the writ of summons and the statement of claim to include the words allegedly used by the defendant/respondent at the time of the alleged slander; therefore where the words “thief” appeared, the word “ole” should be inserted before the word thief, as the English interpretation of the word “ole.” Here are the facts of the case as contained in the printed record.
The plaintiff deposed that he had traveled in a friend’s car from Ogbomoso to Ajawa to attend a ceremony of community fund raising on 26/12/95. While the ceremony was proceeding; the plaintiff said he sought permission to leave the venue in order to visit his father; the 1st defence witness. On arrival at his father’s house the plaintiff said he was told that his father was in the 1st defendants’ house, he went into 1st defendants’ house. The plaintiff said he met the 1st defendant who reproached him for failing to say to the 1st defendant “Kabiyesi.”
The 1st defendant instructed the 2nd defendant to lock the “entrance door; while both the 1st and 2nd defendants shouted “ole, ole,” and ole; interpreted to mean thief, thief, and thief. It is necessary to state that the writ of summons shows the word thief, but it is settled law that an amendment when ordered dates back to the date of filing; See J. Afolabi & Ors. v. John Adekunle & Ors. (1983) 2 SCNLR 141, (1983) 8 SC 98; when the amendments were made in the interest of Justice per Obaseki, JSC. The plaintiff deposed that when he came out of the locked house, he saw about 800 people in the front of the 1st defendant house who had gone there to see the thief called by the defendants. He said the people were carrying sticks to beat the thief, until the crowd saw and recognized him as a prince and prophet, and as a prince of Ajawa, the plaintiff said for a prince of Ajawa to be called a thief will disentitle him to the chieftaincy status. The witnesses for the plaintiff also testified to that effect.
The plaintiff deposed also that his usually busy stream of visitors from his church reduced drastically when the church people heard that he was called a thief at Ajawa, PW1, PW2, PW3 also wondered whether prince Adejumo had gone to Ogbomoso to learn how to steal. PW4 like the other witnesses except PW2 who received report of the incident from the plaintiff, though he was said to be sitting in a car outside the house said they heard the plaintiff being called a thief repeatedly. PW5 said he heard the noise of the parties, the plaintiff and the defendant on 26/12/95 and recognized the voices of the people in altercation.
He saw a large number of people in front of the house of the 1st defendant and went to him to ask what happened. He deposed that the 1st defendant told him that the plaintiff was disrespectful to him and he put the plaintiff to shame. For the defence, the 1st and 2nd defendants’ separately testified. The 1st defendant said he heard exchange of words between the 2nd defendant and the plaintiff, when the 2nd defendant asked the plaintiff if he wanted to fight her, and what concern of his is it, that she was living with the 1st defendant. 1st defendant said he came out of his house to ask the plaintiff what he wanted in his house, and asked the plaintiff to leave his house. Before the plaintiff left; he threatened the 1st defendant that he would be hearing from his lawyer.
The 2nd defendant testified that the plaintiff accosted her to ask where she was going and she asked what concern her where about was to the plaintiff. The plaintiff she said dragged from her the chair she was carrying; and the plaintiff called her a harlot for serving and living with the 1st defendant. She said she replied by calling the plaintiff a thief. She deposed that it is she, as an abuse; who called the plaintiff a thief, in response to his calling her a harlot. The counsel for both parties addressed the court before the trial court pronounced judgment as written above, against the defendants who being dissatisfied with the judgment against them jointly and severally appealed to this court on the amended eight grounds of appeal, from which the appellant formulated the following four issues for determination.
They are:
(1) Whether the learned trial Judge was right in accepting and believing the evidence given by the persons whose names were not pleaded in the statement of claim as persons to whom the alleged slander was published?.
(2) Whether the learned trial Judge properly evaluated the evidence led by both parties before rejecting the evidence of the defendants and their witnesses. Grounds 2,3,4 & 8?.
(3) Whether the words complained of could amount to a slander or mere vulgar abuse in the heat of anger under the circumstances in which the words were spoken?.
Ground 5.
(4) Whether from the evidence before the court the learned trial Judge was right in holding that the appellants were liable for false imprisonment?. Ground 5.
(5) Whether the learned trial Judge was right in awarding the sum of N55,000.00 as damages against the defendants which damages appear to be excessive considering the circumstances of this case?.”
In his brief filed on 27/8/2001; the respondent formulated six issues for determination of the appeal. These are the issues. “The plaintiff/respondent respectfully submit the following, whether the defamatory words complained of by the plaintiff/respondent were prima facie defamatory.
(ii) Whether the said words were uttered and published to third party by the defendants/appellants?.
(iii) Whether the said words were vulgar abuse/alteration?.
(iv) Whether the plaintiff/respondent was unlawfully imprisoned by the defendant/appellant in the house on 26/12/95?.
(v) Whether the learned trial Judge properly considered and evaluated the evidence before him and came to a right conclusion?.
(vi) Whether the damages awarded by the learned trial Judge were too high or too low in the circumstance of this case?.”
It is my view in this judgment to make for tardiness to consolidate the two sets of issues formulated by the appellants and the respondent. Issue one in the appellants’ brief is on the complaint that the alleged publication of a defamatory statement made was not made to named persons and that the persons who testified for the plaintiff were not named in the writ of summons or the statement of claim. The respondents’ issue two asked the question whether the words were uttered and published to 3rd parties by the defendants/appellants.
The two issues deal with one topic namely: whether the alleged defamatory words were in fact published to any named persons. I shall consider in this judgment the two issues under the topic. In the appellants’ issue two the appellant asked whether the learned trial Judge evaluated the evidence of both parties before rejecting the evidence of the defendants. The same question is asked in the respondents’ issue five quoted above. I will treat the two issues under the topic of whether the trial court evaluated the evidence tendered in court in respect of the claim for slander; and for unlawful imprisonment deposed to by the respondent in the court below; contained in issues four of the appellant and issue 4 of the respondent.
Issue 3 in both the appellants’ brief and the respondents’ brief asked whether the words found by the court below to have been defamatory were not in fact mere vulgar abuse spoken in the heat of the moment. It is convenient to consider under this topic the issue one formulated by the respondent in which he asked whether the defamatory words complained of by the plaintiffs/respondent were prima facie defamatory.
Thus issue 3, and 4 of the two parties are convenient to be treated under the topic “are the words defamatory or mere vulgar abuses.” Issue 5 of the appellant is on the issue of damages awarded by the court below, when the appellant asked “whether or not the damages of N55,000.00 ordered by the court below against the appellant was not excessive.” The respondents in his issue 6; submitted that the damages were not excessive in the circumstance.
I will in this judgment consider the said issues 5 and 6 respectively of the appellant and the respondent as one topic; issue of damages. Consequently, the entire five issues of the appellants and six issues of the respondents are compressed into four issues as stated above. Because the main issue in this appeal is hinged on whether or not the words held to be spoken by the appellants are defamatory of the respondent, I am in this judgment considering first issue as compressed here of the respondent and appellants issues which is whether the words found by the court below to have been defamatory were not in fact mere vulgar abuse.
It is inescapable in the event that the words defamation should be defined. Words are said to be defamatory, if in their ordinary meaning render the persons about whom they are spoken to odium, shame and disgrace. Sim v. Stretch (1936) 2 All ER 1237, Lord Atkins pronounced the words which have come to be the acceptable test for the identification of defamatory words when he asked the question, ‘would the words complained about tend to lower the plaintiff in the estimation of right thinking members of society generally?’ “See Awoniyi v. Registered Trustee of Amore (1990) 6 NWLR (Pt. 154) 42 … Since the case of Thorley v. Lord Kerry (1812) 4 Taunt 355.
It has been established that a distinction exists between words that are defamatory, when they are spoken, which is called slander and defamatory words in writing which is called libel. The difference in the two is requirement for proof of damages incurred or resulting therefrom. In this appeal, the issue on which the plaintiff obtained damages in the court below is on slander; when the plaintiff deposed that the defendants called him ole, ole, ole, meaning thief, thief, thief, in his amended statement of claim.
Generally, slander is the uttering of words which are defamatory of a person who claims; and it is actionable on proof of damages.
The onus of proving that a loss is sustained, or that damages are suffered lies on the plaintiff, see Kuku v. Olushoga (1962) 1 All NLR 625. There are however also some damages or loss suffered by the plaintiff which as exception to the general rule are actionable per se; that is without proof of damages; this includes an imputation that the plaintiff has committed an offence punishable by death or imprisonment or the uttering of words which tend to injure the plaintiff in his profession or trade. In the instant appeal; the complaint of the respondent in the court below include averment that being called a thief by the appellant injured him in his profession as a prophet and in his status as a prince. It is in the law of defamation that some words uttered by the defendant in the heat of a quarrel, depending on the circumstances surrounding the utterance of the words may not constitute a slander which can be actionable.
It is therefore possible to call another a thief when it is said in the heat of passion. Provided the words are understood to have been said as words spoken as a mere vulgar abuse there may be no slanderous imputation; and no action will lie. In the testimony before the court below the 2nd defendant/appellant deposed that the plaintiff/respondent met her on the road; and tried to pull down from her, the chair, she was carrying and when she resisted she deposed that the plaintiff/respondent called her a harlot, slave to the 1st defendant/appellant, whereupon she retorted to the respondent and called him a thief. There is no evidence that any person other than the two people heard such an exchange; such is an example of an abuse or mere vulgar abuse. The aspect of the slander which require consideration is the testimony of the plaintiff; that the 1st defendant/appellant on the instruction of the 1st, defendant the 2nd defendant/appellant, locked the door of the house against him, the plaintiff and the two shouted that they were in the house, the plaintiff/respondent described it as a false imprisonment.
False imprisonment may be defined as the restraint of a man’s liberty whether it be in an open field or in a cage. The relevant fact or to look for is whether the victim had at the time liberty freely to go at all times; as enshrined in our 1999 Constitution, see section 35(1). However the detention must be total, in that there should be no means of escape from the detention known to the victim, see Meering v. Graham While Aviation Coy. Ltd. (1920) 122 Law Times 44, 51 and 53. In the instant claim, in the court below, the defendants/appellants deny locking the door to prevent the plaintiff/respondent from leaving the house; and that the plaintiff/respondent had not entered the defendants/appellants house for up to three years.
The conclusion as to whether or not the plaintiff entered the house of the 1st defendant is a matter of fact on which the court below has ruled. An appellate court does not lightly set aside findings of fact made by the court below, unless such a finding or conclusion is perverse. See (1) Kate Enterprises Ltd. v. Daewoo (Nig.) Ltd. (1985) 2 NWLR (Pt.5) 116 at 120 (2) Ajadi v. Okenihun (1985) 1 NWLR (Pt. 3) 484, (1985) NSCC (3) Nwaezema v. Nwaiyeke (1990) 3 NWLR (Pt.137) at 230; one issue which inevitably comes to one’s attention is the whereabouts of the plaintiff/respondent’s father at the time the door of the house was said to have been locked. There is conflicting evidence as to the presence in the house of the plaintiffs father. While one witness said the plaintiff’s father could be seen peeping through a window in the 1st defendant house after the door was opened and the crowd gathered; another said that the plaintiff’s father was not in the house of the 1st defendant. The plaintiff’s father was the 1st witness for the 1st defendant and he did not say that he was in the house of the 1st defendant/appellant.
In fact the testimony of Akinbola, the 1st defendant’s 1st witness who is the plaintiff’s father, showed that he was not in the house of the defendant at the time of the alleged locking of the door: He said in cross examination “The plaintiff came to me to say that certain people called him ole, ole.” The relevant question which should have determined the issue of false imprisonment claim made by the plaintiff is this: As the plaintiff/respondent had been to Ajawa for fund raising; and excused himself to go over to see his father; should the plaintiff have entered the house of his known adversary at all? Would it not have been clear to him on enquiry that his father was not in the house of the 1st defendant? If so why did the plaintiff say he entered the house of the 1st defendant. He is reported even by his father to have refused to enter the 1st appellant’s house over three years. The plaintiff’s father, witness for the defendant said, in evidence thus, “he would not say whether the plaintiff entered the 1st defendant’s house, if he went there at all, he went there to cause trouble.”
The question to be determined to establish whether in fact there was a locking up of the plaintiff/respondent is this; was there any entry by the plaintiff into the 1st defendant’s house to make any imprisonment or detention of the plaintiff in the house possible? The testimony of the 1st defendant’s witness who is the father of the plaintiff thus “if he went there at all” that is if the plaintiff went there at all, tends to support the view that the plaintiff did not enter the house of the 1st defendant and that it is untrue that the plaintiff was locked up in the 1st defendant’s house at all.
There was therefore no false imprisonment of the plaintiff. It is in my view a story made up to increase the plaintiff’s chance of success in his claim before the court. In my view the trial court failed to evaluate and conclude on the veracity of the evidence before him to arrive at a probable and logical conclusion. I set aside all order made by the trial court on the issue of false imprisonment and resolve issues 2 of the appellant and issue 5 of the respondent against the plaintiff/respondent in favour of the appellants.
I have left uncompleted above the discussion and consideration of the issue as to whether or not the words ruled by the trial court to be defamatory are in fact defamatory; or whether the words are mere vulgar abuse. I did so because I deem it appropriate to treat the issue with the issue of publication of the slander.
Defamatory words that are not published to named third parties do not found a right to a claim for damages. The reason is easy to discern. If third parties are not informed of utterances of the defendant which are defamatory of the plaintiff; there can be no lowering of the opinion of the plaintiff by 3rd parties. In his brief the appellants have gone further to state that the names of the 3rd party to whom the publication is made must be contained in the plaintiffs’ writ of summons or the claim. While it is there in law, that the person to whom publication is made must be identifiable and that it should have been sufficient to state in the claim that the publication of the defamatory word were made to diverse people or 3rd parties.
The submission in the appellants’ brief supported by quotation from the book on precedents by Bullen and Leake that the names of the persons to whom the publication is made must be stated in the pleadings and that failure to so state the names of the receivers of the defamatory words would render the claim not actionable appear to me not to represent the current position of our practice in this country in prosecuting a claim for defamation.
Without any doubt if the names are available of the persons to whom the publication is made; it will aid litigation to state them, it should also be equally sufficient to state in the pleadings that the defamatory words were made to diverse people or 3rd parties. At the hearing of the case the names of people who testify for the plaintiff may state the information which came to their knowledge about the plaintiff. To state the names of the people who received the defamatory words in the pleadings compulsorily is in my view to venture into the realms of evidence at that stage. Failure to so state the names of the publishers of the defamatory words in the statement of claim should not defeat the plaintiffs claim ab initio.
In the instant appeal, it is true to say that the plaintiff failed in the court below to state in the pleadings the names of the persons who eventually testified on his behalf. It is not a practice known to the procedure in this country that the failure of the plaintiff to name the publishers of the defamatory words in his claim or summons will defeat his claim. I rule therefore against the submission contained in issue one of the appellant’s brief and in issue two of the respondent.
I therefore resolve the said issues against the appellant in favour of the respondent.
Are the words spoken by the 1st defendant and 2nd defendants defamatory? So that the words do not amount to mere vulgar abuse?
Before now in this judgment I have described the ingredients of defamation and of what amount to a mere vulgar abuse, which could arise in the heat of passion. To determine and give response to the question above; it is necessary to consider the evidence of both parties in the court below. The appellants have submitted in their briefs that the words spoken by them to the plaintiff were words of mere vulgar abuse spoken in the heat of passion. It is necessary to go into the antecedents of both the appellants and the respondents. There had been a chieftaincy dispute in Ajawa in which the appellant in person was a contestant. In that dispute the beneficiary of the plaintiff’s support won. It was in evidence that a state of tension antagonism and remorse existed between the plaintiff and the defendant, to the point that even as the plaintiff’s father referred to the 1st defendant as his relatives, the plaintiff did not support the 1st defendant in the latter’s bid to be the Alajawa of Ajawa; clearly the 1st defendant was not happy with the plaintiff.
Evidence shows that the 2nd defendant was living with the 1st defendant in an undefined relationship. The plaintiff saw the 2nd defendant and called her unsavoury names like harlot slave, the 2nd respondent replied in particular; the plaintiff dragged from the 2nd defendant a chair the latter was carrying; and to the taunting of the plaintiff, the 2nd defendant replied to the plaintiff “Are you looking for a fight? There is direct evidence that the plaintiff followed the 2nd defendant to the vicinity of the 1st defendant where there was an exchange of words particularly as the 1st defendant resented the show of disrespect by plaintiff to him;
when the plaintiff did not greet the 1st defendant as Kabiyesi. The word ole, ole, or thief, thief shouted by the two defendants was undoubtedly in exchange of abuses between the parties in the heat of their quarrel. It was a mere vulgar abuse in the heat of passion of anger. The words are not defamatory in law. I am in agreement with the submission of the appellant counsel that when he wrote that if the trial Judge had evaluated the evidence before him; he would have reached a conclusion that the said words were no more than an abuse; and that the plaintiff was not subjected to any opprobrium or disgrace by the utterance of the words. In the result, I resolve the issue 3 of the appellant and 5 of the respondent against the respondent in favour of the appellant and set aside the order of the court below that the words are defamatory.
The words are not at law defamatory, the words are mere vulgar abuse; and are not actionable. I allow the appeal on the issue. The final issue to be considered in this appeal is this, was the learned trial Judge right in awarding the sum of N55,000.00 as damages; was the damage awarded not excessive?
The foregoing in the present show that the words spoken of the plaintiff when he was called ole, ole, meaning thief; do not constitute and amount to an actionable slander; furthermore the court below has been found by me to be in error when he found that the plaintiff had proved the tort of unlawful imprisonment. There is consequently no delict or wrong committed by the appellant/defendants against the plaintiff/respondent to warrant the order of damages made against the defendant/appellants by the learned trial Judge. I hereby set aside the order for damages made by the trial court against the defendants/appellants. On the four major issues considered in this appeal, three are ruled in favour of the appellants and one only against the appellants. The appeal succeeds in part. It is allowed, the claim of the plaintiff in the court below should have been dismissed. It is dismissed here and the appeal succeeds. I make no order for costs.
Other Citations: (2003)LCN/1482(CA)
