Mrs. Justina Ozo Inoma V. Mrs. Veronica Nzekwu (2007)
LawGlobal-Hub Lead Judgment Report
JIMI OLUKAYODE BADA, J.C.A.
This is an appeal against the Judgment of the High Court of Anambra State holden at Onitsha in Suit No:-O/46/2001 – Mrs. Justina OZO Inoma V. Mrs. Veronica Nzekwu. In the said Judgment delivered on the 14th day of February 2006, the Plaintiff/Appellant’s claim for (N1,000,000.00) One million Naira damages for defamation of character was dismissed.
Dissatisfied with the said Judgment the appellant now appealed to this court.
The appellant formulated three issues for determination as follows:-
“(1) Was the alleged defamatory words actually defamatory?
(2) Whether, by the state of pleadings in this suit, the Defendant had not admitted making the defamatory statement.
(3) Whether, on the evidence before the court, the Plaintiff had not proved her case.”
The Respondent on the other hand formulated four issues for determination as follows:-
“(1) Did the defendant make the alleged defamatory statement,
(2) Whether the alleged statement was actually defamatory of the Plaintiff.
(3) Whether the publication of the slander complained of was proved
(4) Whether on the state of pleadings and on the evidence before the court the Plaintiff had proved her case,”
At the hearing, learned counsel for the parties adopted and relied on their respective briefs of argument.
The issues formulated on behalf of the parties are similar in nature, however the issues as set out on behalf of the appellant are considered relevant and apt to determine this appeal.
Issue 1
The learned counsel for the Appellant referred to the alleged defamatory statement. it is as follows:-
“Ego adata Mbosia reline. Ana m eme osiso ka m jebe Ogbe-oye market maka na chi ejibego, m we kpolu ego nine ndia wee kposalu nwunye lnoma, wee pubzia- Emesia anyi ga eje elele maka ya.”
Translated into English these words mean:-
“The money we got that day was much. i was in a haste to go to Ogbe Oye Market because it was getting dark. So I left the whole money with Mrs. Inoma and left. We shall go to Elele for this.”
Learned counsel for the appellant stated that the alleged defamatory statement impute the commission of a crime to Mrs. Inoma. He submitted that slander is actionable per se, that is without proof of actual damage, if it includes an imputation that the Plaintiff has committed an offence punishable by death or imprisonment or uttering of words which lend to injure the Plaintiff in his profession or trade. He relied on the following cases:-
– Adeyemo Vs. Akintola (2004) 12 NWLR Part 887 Page 390 at 394.
-Ishaku Vs. Aina (2004) 11 NWLR {Part a83) Page 147.
Learned counsel slated that the lower court found that much money was collected and that it was short by (N2,000.00)Two thousand Naira. Therefore that it goes without saying that whoever is responsible for the missing money stole it. And under the Criminal Code, the punishment for stealing is imprisonment or fine or both of them.
He submitted that the lower court was wrong when it held that the words complained of were not in anyway defamatory.
On the other hand, learned counsel for the Respondent also referred to the alleged defamatory statement. And he stated that no single witness was called by the plaintiff to support any part of her testimony.
He also referred to paragraphs 13 and 14 of the Amended Statement of Claim, which were reproduced verbatim in paragraphs 21 and 22 of the Plaintiff’s further amended statement of claim.
He went further that by paragraph 24 of the Amended Statement of Defence the defendant specifically denied allegations pleaded in paragraphs 13 and 14 of the amended Statement of Claim, and in her evidence in chief, she denied ever making the alleged statement. Furthermore that the Plaintiff failed to call one out of the catholic women Organisation members present at the occasion to substantiate the fact that she heard the defendant utter the offensive words.
Learned counsel submitted that mere averment without evidence in proof of the facts pleaded is no proof of the facts averred therein, where they have not been admitted. He referred to the following cases:-
– Kalio V. Woluchem (1985) 1 NWLR Part 4 Page 610.
– Okagbue V. Romaine (1982) 5 S.C. 13.
– Adegbite Vs.Ogunfalolu (1990) 7 S.C. N.J. Page 111 at 120.
The first thing to be examined in this appeal is – What exactly is a defamatory statement?
A statement is said to be defamatory if in its ordinary meaning, it renders the person about whom it was spoken to odium, shame and disgrace. The test for determining whether a Statement is defamatory is whether the statement complained about tend to lower the Plaintiff in the estimation of right thinking members of the society generally.
See – Awoniyi V. Registered Trustee of AMORC (1990) 6 NWLR Part 14 Page 42.
There is a distinction 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 in the requirement for proof of damages incurred or resulting therefrom.
The focus in this appeal is on slander, which is generally actionable on proof of damages. The onus of proving that a loss is sustained or that damage is suffered lies on the Plaintiff. There is, however, also damage or loss suffered by a plaintiff which, as exception to the general rule is 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 the words which tend to injure the Plaintiff in his trade or profession.
The translated English version of the alleged defamatory statement is set out as follows:-
“The money we got that day was much. I was in a haste to go to Ogbe Oye market because it was getting dark. So I left the whole money with Mrs. Inoma and left, we shall go to Elele for this.”
It was alleged in the amended Statement of Claim and further amended Statement of Claim and the evidence proffered before the lower court by the appellant that the defendant falsely and maliciously uttered the alleged defamatory statement quoted above. But the defendant both in the amended statement of defence and her evidence before the lower court denied ever making the alleged statement.
A careful examination of the alleged defamatory statement quoted above did not show that it lowered the estimation of the right thinking members of the society for the Plaintiff, moreso there was no evidence that the statement was published to a 3rd party and it was not shown that the words are defamatory of the plaintiff. See- Nsirim V. Nsirim (1990)3 NWLR Part 138 Page 285.
Furthermore under cross examination the Plaintiff denied that the defendant handed over any money to her when she was leaving at the end of the function for which they all gathered. (See – Page 49 of the Record of Appeal)
In view of the foregoing, it is my view that the alleged defamatory words are actually not defamatory of the Plaintiff Appellant.
Issue 2
The learned counsel for the appellant referred to paragraphs 15 to 21 of the amended statement of claim and paragraph 4 of the reply to show those present when the defendant published the alleged defamatory statement.
In furtherance to the pleadings referred to above learned counsel stated that the defendant did not deny making the statement, he referred to paragraph 25 of the Amended Statement of Defence which raised the defence of qualified privilege and fair comment.
Learned counsel for the appellant then submitted that by virtue of the said paragraph 25 of the Amended Statement of Defence, the burden lying on the Plaintiff has been transferred to the Defendant to prove the truthfulness of her claim.
He referred 10the following cases:-
– Dina Vs. New Nigerian Newspapers (1986) 2 NWLR part 22 Page 353.
– Bakare Vs. Oluwide (1969) 2 All NLR Page 324.
He finally submitted that on the stale of pleadings, that the defendant admitted making the alleged defamatory statement.
On the other hand learned counsel for the Respondent slated that it is the duty of the plaintiff to prove all allegations made in her Amended Statement of Claim. He submitted that a defendant is at liberty to raise as many distinct, separate and inconsistent defences she thinks proper. He referred to the following cases:-
– City Property Development Ltd. V. Attorney General of Lagos State (1976) 1 S.C. Pge 71.
– Chief Apena Vs, Chief Aiyetobi (1989) NWLR Part 95 at Page 85 Ratios 8, 9, & 11.
It is necessary in order to get to the root of the matter, to set out part of paragraph 25 of the Amended Statement of Defence. It reads thus:-
“(25) In further answer to paragraph 15 of the amended Statement of Claim the defendant states that assuming but without conceding that the defendant published the statement as alleged in the said paragraph then the defendant at the hearing will raise and rely on the defences of:-
(a) Qualified privilege as
(i)
(ii)
(iii)
(iv)
(b) Fair comment, as the comment
(i)
(ii)
(iii)
The above plea in my view is in two parts. The first part – if it is assumed (i.e. taken as true) that the defendant published the statement she will raise certain defences to wit: qualified privilege and fair comment. The second part is that the defendant does not concede that she published the said statement. She denies publishing the said statement.
It has been held that a defendant is at liberty to raise as many distinct, separate and therefore inconsistent defences as he thinks proper. See – Chief A.O. Apena V. Chief N.L. Aiyetobi (supra).
The amended Statement of Defence is contained on Pages 8 to 12 of the record of appeal and a careful reading of the said defence showed that the defendant denied the allegations against her and she also joined issues with the Plaintiff, therefore it would be wrong for the Plaintiff to pick on paragraph 25(a) and (b) alone of the said defence because it is settled that each paragraph of a statement of defence must not be considered in isolation but in conjunction with other paragraphs so that the issues joined in the pleadings can be properly ascertained. See – Ugochukwu V. Cooperative Bank (1996) 7 S.C. N.J. Page 22.
– Pan Asian African Co. Ltd V. NICON Ltd. (1982) 9 S.C. Page 11 at 45.
Therefore such a pleading cannot amount to an admission.
The position of the law is that in an action for defamation, where the plaintiff is of the view that the words complained of are defamatory in their natural meaning, the plaintiff need only to prove publication and nothing more, thereafter the onus shifts to the defendant to prove the circumstances in which the words were uttered. See – Dina Vs. New Nigerian Newspapers Ltd. (supra).
In the instant case, since I have held earlier on that the amended statement of defence of the defendant when considered as a whole cannot amount to an admission of the Plaintiff’s Claim therefore it is my view that by the slate of pleadings in this suit, the defendant had not admitted making the defamatory statement.
Issue 3
The learned counsel for the Appellant admitted the fact that the Plaintiff did not call any other witness apart from herself in proof of her case. But he stated that in view of paragraph 25(a) & (b) of the amended Statement of Defence that the onus of proof on her has shifted to the defendant to prove that truthfulness of her statement.
The learned counsel for the Respondent in his own case stated that there was no evidence from the Plaintiff to show that the defendant made the alleged defamatory statement, despite the abundant evidence before the lower court that a good number of the Catholic Women Organisation (C.W.O.) members were present when the statement was allegedly uttered and the Plaintiff could not call one out of the lot to substantiate the fact that she heard the Defendant utter the offensive words.
In an action for slander, for the Plaintiff to succeed the evidence of the person or persons to whom the alleged slanderous words are published must be given.See – Adeniji & 1 other Vs. Fetuga (1990) 5 NWLR Part 150 Page 375.
Also in – Nsirim V. Nsirim (Supra), it was held that the cardinal principle of the law of defamation is that there must be publication of the libelous matter to a third party, this is because a person’s reputation is not based on the good opinion he has of himself but the estimation in which others hold him.
In the instant appeal, there was no proof of publication of the slander complained of to a third party. The plaintiff only testified alone, she did not call any witness in proof of the publication of the said slanderous statement. therefore it is my view that without the evidence of those Catholic Women Organisation members or other persons present when the alleged statement was made, the Plaintiff/Appellant’s case cannot stand.
A careful examination of the Plaintiff’s case and the entire evidence before the lower court showed that the plaintiff failed woefully to prove her case against the Respondent. The learned trial Judge was therefore right when he dismissed the plaintiff/appellant’s case for lack of substance and merit.
In the final analysis, it is my view-that this appeal is unmeritorious, it fails and it is accordingly dismissed.
The Respondent is entitled to costs of this appeal which is assessed as (N30,000,00)Thirty thousand Naira against the Appellant.
Other Citations: (2007)LCN/2549(CA)
