Sylvernus Iroegbu & Ors V. Chief Aloysius Okeke & Anor (2016)

LawGlobal-Hub Lead Judgment Report

PETER OLABISI IGE, J.C.A.

This is an appeal against the judgment of the High Court of Imo State of Nigeria delivered by Hon. Justice IJEOMA AGUGUA at OKIGWE Division on 7th day of May, 2009.

The Respondents as Plaintiffs had by their writ of summons issued out of t said court on 26th day of March, 2008 claimed against the Appellants as Defendants the following reliefs:

€œA. Two Millioln Naira (N2,000,000) for defamation of Plaintiffs€™ Character.

B. Perpetual Injunction restraining the Defendants from further defamation of Plaintiffs€™€™ Character.€

Pleadings were exchanged and the action proceeded to trial after which the Learned trial Judge gave considered judgment in favour of the Respondents to this appeal. The Learned trial Judge held among others as follows:

€œHowever plaintiff said his father was a warrant chief in 1918 and he was contesting the chieftaincy stool. Defendants did not deny that the chieftaincy stood was being contest4ed. As a matter of fact evidence is that the position has been filled while this case was pending. This strengthens plaintiffs case. It is clear to me that he will not clear his name until the chieftaincy issue is over. That is the only reasonable conclusion I have surmised in this entire saga.

Plaintiff has therefore proved damage. Note that no case of defamation was made against 3rd defendant. He is accordingly not liable to the claims of plaintiffs. 2nd defendant by his utterance it would seem had without other proof agreed with 1St defendant that plaintiff did harm his relation.

Accordingly I make the following orders:-

The 1st and 2nd defendants are to pay to the plaintiffs jointly the sum of N2 Million Naira for the defamation of the plaintiffs€™ character.

1st and 2nd defendants are perpetually restrained from further defamation of the character of the plaintiffs.

1st defendant will play to plaintiffs N10,000 (Ten thousand naira) only being cost for this action.€

The Appellants were aggrieved by the decision of the Learned trial Court and have appealed to this Court by their NOTICE OF APPEAL dated 3rd day of June 2009 and filed on 8th day of June, 2009 containing eight grounds of appeal which without their particulars are as follows:

€œ3 GROUNDS OF APPEAL

GROUND ONE

(a) Error In Law

The trial court erred in law when it held that the defendants failed to prove the custom of their community which provides that when an allegation of harming another by witchcraft is leveled against a member of the community, such allegation is referred to the community which shall arrange for the accused person to take oath to clear his name.

(b) GROUND TWO

Error In Law

The trial court erred in law when it held that it cannot take judicial notice of the custom of Umuowa Ibu which is in line with general Ibo custom that matters like allegation made by 1st Defendant/Appellant is usually reported to the elders.

(c) GROUND THREE

Misdirection

The trial HIGH Court misdirected itself on the facts when it held that the 1st defendant failed to provide oath to the 1st plaintiff thereby occasioning a miscarriage of justice.

(d) GROUND FOUR

Error in Law

The trial court erred in law when it held that the plaintiff has therefore proved damages.

(e) GROUND FIVE

Error in Law

The trial court erred in law when it failed to consider the defence of qualified privilege available to the 1st and 2nd defendants and adequately canvassed by counsel for defendants in his written address.

(f) GROUND SIX

Error in Law

The trial court erred in law when it held that the statement of the 1st and 2nd defendants amounted to an imputation of crime.

(g) GROUND SEVEN

Error in Law

The trial court erred in law when it awarded to the plaintiffs against the 1st and 2nd defendants the sum of two Million Naira (N2,000,000.00).

(h) GROUND EIGHT

Error in Law

The trial court erred in law when it held that no case of defamation was made against the 3rd defendant and yet awarded no cost in his favour against the Plaintiffs.€

The Appellants filed their Appellants€™ Brief of Argument dated 27th day of April, 2012 on 25TH day of May, 2012 and deemed properly filed on 26th November, 2012.

The Respondents€™ Brief of Argument is dated 9th December, 2013 and filed on the same date. The said Respondent€™s Brief was deemed filed on 10th day of February, 2014. It must be stated that the afore said Respondents€™ Brief of Argument contained Notice of preliminary objection the summary of which is that the Appellants appeal was filed 4 months or 120 days after final judgment instead of 90 days thereby rendering the appeal incompetent under Section 24 (2) (a) of the Court of Appeal Act Cap C €“ 36 LFN 2004.

The Appellants thereafter filed a Reply Brief dated 18t day of December, 2013 and filed 19th December, 2013 in response to the Notice of Preliminary objection.

The appeal came up on the 14th day of March 2016 when the Respondent€™s Learned Counsel argued the Preliminary objection and the Appellants Learned Counsel replied. The Learned Counsel to the parties also adopted their respective Briefs of Argument.

This court is under a duty to first determine the merit or otherwise of the Preliminary objection because if it succeeds the appeal herein will be moribund and liable to be struck out. This court has no jurisdiction to embark on adjudication upon an incompetent appeal. See:

(1) JERRY IKUEPENUKAN VS. THE STATE (2014) ALL FWLR (PART 788) 919 AT 946 C €“ D per NWEZE JSC who said:

€œThis must be so for a preliminary objection is a pre-emptive strike; its resolution obviates the need for the dissipation of precious judicial time in the determination of the appeal on the merit, Jim-Jaja v C.O.P., Rivers State and Ors (2012) LPELR-20621 (SC) 10, paragraph F.

Indeed, that is why this court is under obligation to resolve the issue agitated in the above preliminary objection for taking any further step in the determination of this appeal Okoi v. Ibiang (2002) FWLR (Pt. 117) 1053. (2002) 10 NWLR (Pt,776) 455,468, UBA Plc v. A.C.B. Ltd (2005) 12 NWLR (Pt. 939) 232, Gaji v. Ewete (2001) 15 NWLR (Pt.736) 273,.280.€

(2) NONYE IWUNZE VS the Federal Republic of Nigeria (2015) all FWLR (PART 788) 844 at 853 to 850 A €“ B per RHODES €“ VIVOUR JSC who said:

€œThe Constitution confers on the Court of Appeal jurisdiction to hear and determine appeals. The jurisdiction is statutory and also controlled by Rules of Court. The Court of Appeal would lack jurisdiction to hear an appeal if an appellant fails to comply with statutory provisions or the relevant rules of the court.

The originating process in all appeals in the notice of appeal Once it is found to be defective the Court of Appeal ceases to have jurisdiction to entertain the appeal in whatever form. See Olowekere v. African Newspaper (1993) 5 NWLR (Pt 295) 583.

In force at one time or the other were the Court of Appeal Rules of 2002, 2007 and 2011. The well laid down position of the law is that the rule governing practice and procedure is the rule in force at the time of the trial, or when the application is taken, unless there are any provisions to the contrary. See Owata v. antyigor (1993) 1 NSCC (Pt.1) 199,€

The Respondents Motion on Notice dated 28th March, 2012 and filed on the same date prays for:

€œAn Order of Summary dismissal of this Appeal for gross non-compliance with the Rules of this Honourable Court.€

The Objection is situate in the following grounds:

1. The Record of Appeal was compiled and transmitted to this Court on the 8/7/2011 by the Registrar of the Court below 2 years after the Notice of Appeal was filed by the Appellants/Respondents on 8/9/2009. See page 108 of the said Records Copy of which is attached herewith as Exhibit €œA€.
2. The Notice of Appeal was filed on the 8/9/2009 after judgment was delivered on 7/5/2009 i.e. about 4 months or 120 days after final judgment as opposed to 90 days provided by Law. See page 101 of the said Records attached herewith as Exhibit €œB€.

The Notice of Preliminary Objection was supported with seven (7) paragraph Affidavit deposed to by the 1st Respondent in the Registry of this Court. The argument on the said objection can be found in paragraphs 1.00 to 1.08 pages 1 and 2 of the Respondents, Brief of Argument. The Respondent relied on page 101 of the Records to contend that it was clearly shown that the Appellants appeal was filed on 8-9-2009.

That pages 93 and 94 of the record also show that the judgment appealed against was delivered on 7/5/2009. That the Appellants filed their Notice of Appeal four months later in breach of Section 24 (2) (a) of the Court of Appeal Act Cap C 36 LFN. He submitted that the appeal was filed out of time. That this Court could observe page 94 of the record as full of mutilation whereas, according to Respondents, the date of filing on page 101 of the Record which has no mutilation shows 8-9-2009. This Court is urged to discountenance what the Respondents called €œthe mutilated dates appearing on page 101 of the Records and rely only on the clear, unmutilated date of 8-9-09 as on page 101 of the Records.€

To the Respondents it follows the appeal was filed out of time on 8/9/2009 without the Leave of this Court and that this has disable this Court and that the appeal is incompetent.

In reply to the Respondents€™ submissions, the Learned Counsel to the Appellant State of that the appeal was filed on 8-6-2009, thirty two days after the judgment was delivered on 7/5/2009. That the first page of the Notice of Appeal page 94 of the record shows evidence of payment of fees for the Notice of Appeal on 8/6/2009 and receipt No. 011 7634. That it is obvious that the Registrar of the Court below made a mistake while writing the date on last page of the Notice of Appeal page 101 of the records where instead of writing 8-6-2009, according to Appellants€™ Counsel the Registrar wrote 8 €“ 9 €“ 2009.

The Appellants submitted that the date 8/9/2009 was a mistake for the following reason:

1. Page 102 of the Records shows Notice of Settlement of Records was issued by Registrar of 16/6/2009. That the Registrar could not have issued that Notice if the appeal has not been filed on 8/6/2009.
2. That page 103 of the Records of Appeal shows that Settlement of Records of appeal was done on 18/6/2009 with I. Okoronye Esq. for the defendants/appellants being present. That it is only when an appeal had been filed that Records of Appeal are settled.
3. That Pages 104 €“ 105 of the Records of Appeal show that the appellants entered into bond to prosecute the appealed on 17- 7-2009 and on same date. Page 106 of the Record was also referred to. That the Registrar certified that Appellants duly complied with the conditions of appeal imposed on them.

This Court is urged to dismiss the Preliminary Objection. I agree with the submissions of the Appellants that their appeal was filed on 8/6/2009 and NOT 8/9/2009. The Appellants are right and have shown they appealed within time on 8/6/2009. Their position is also amply supported by the schedule of fees contained in the Record of Appeal just before page one of the record duly signed by Senior Registrar O. M. Nwogu Esq., at the High Court Registry Okigwe on 4/5/2011 showing that the Notice of Appeal was paid for on Treasury Receipt CR. No. 011 7634 of 8/6/09 evidencing payment of Two Thousand Naira for the filing of the Notice of Appeal.

The Notice of Preliminary Objection is devoid of merit and same is hereby dismissed with N20,000.00 costs to the Appellants.

Now to the merit of the appeal.

The Appellants€™ Learned Counsel Innocent Okoronye Esq., distilled seven issues from Eight Grounds of Appeal for determination of the appeal as follows:

1. Whether the trial Court was right when it held that the defendants failed to prove the custom of their Community which provides that when an allegation of harming another by witchcraft is levied against a member of the Community, such allegation is referred to the Community which shall arrange for the accused person to take Oath to clear his name. (Ground 1).
2. Whether the trial Court was right when it held that it cannot take judicial notice of the Custom of Umuowa Ibu which is in line with general Ibo Custom that matters like the allegation made by 1st Defendant/Appellant is usually reported to the elders. (Ground 2).
3. Whether the Customary Court misdirected itself on the facts when it held that 1st defendant failed to provide Oath to the 1st Plaintiff thereby Occasioning a miscarriage of Justice. (sic) (Ground 3).
4. Did the trial Court err in Law when it held that the €œPlaintiff has therefore proved damages. (Ground 4).
5. Did the trial Court err in Law when it failed to consider the defence of qualified privilege available to the 1st and 2nd defendants and adequately canvassed by their Counsel. (Ground 5).
6. Did the trial Court err in Law when it held that the Statement of the 1st and 2nd defendants to an imputation of crime. (Ground 6).
7. Whether the trial Court erred in law when it awarded to the plaintiffs the sum of two Million Naira (N2,000,000.00) against the 1st and 2nd defendants. (Ground 7).

The Respondents Learned Counsel also formulated seven (7) Issues which are a recast or embellishment of the seven Issus formulated by the Appellants for determination.

I will consider the appeal on the Issues distilled by the Appellants. I will take Issues 1, 2 and 3 together.

ISSUES 1, 2 AND 3

1. Whether the trial Court was right when it held that the defendants failed to prove the Custom of their Community which provides that when an allegation of harming another by witchcraft is levied against a member of the Community, such allegation is referred to the Community which shall arrange for the accused person to take Oath to clear his name.
2. Whether the trial Court was right when it held that it cannot take judicial notice of the Custom of Umuowa Ibu which is in line with general Ibo Custom that matters like the allegation made by 1st defendant/appellant is usually reported to the elders.
3. Whether the trial Customary Court misdirected itself on the facts when it held that the 1st defendant failed to provide Oath to the 1st Plaintiff thereby occasioning a miscarriage of justice.

The Learned Counsel to the Appellant Innocent Okoronye Esq., started by referring to paragraph 20 of the Appellants Statement of Defence on page 17 of the record. That the Defendants now Appellants pleaded that the defamation complained of by the Respondents is a normal accusation in the Community of the parties to this appeal and that the onus his on the person accused to swear on Oath to vindicate his name. That the Respondents as Plaintiffs did not file a Reply to the Appellants€™ Defence being a new issue raised thus the Respondents admitted the Custom pleaded to be true and as such there is no onus on the Appellants to give evidence of the Custom. He relied on the case of HENSHAN V. EFFANGA (2009) 11 NWLR (Pt. 1151) 65 ratio 11 and Section 123 of the Evidence Act 2011. That notwithstanding the admission by Respondents, Appellants called DW1, DW2 and DW3 who all gave evidence of the custom.

On Issue 2 as to whether the trial Judge was right in failing to take judicial notice of the Custom of Umuowa Ibu, the Learned Counsel to the Appellants referred to page 89 of the record concerning the finding of the trial Judge on the said Custom. That the Learned trial Judge glossed over the defendants€™ Address on page 68 of the record where he referred to the decision of High Court Okigwe in Stephen Akabuike vs. Sunday Nwokoro (1979) IMSLR 566 ratio 2, 3 and 4 where Learned Counsel to Appellant said the general Ibo Custom was acted upon. That the Court in that case held that similar words spoken leading to this case was spoken on a privileged occasion. That the requirement of Section 74 (L) of the Evidence Act now Section 122 (2) (L) of Evidence Act 2011 has been satisfied.

On Issue Three as to whether the trial Court misdirected itself in holding that 1st defendant failed to provide Oath to the 1st Plaintiff occasioned miscarriage of Justice, the Learned Counsel to the Appellants referred to page 91 of the record and submitted that the finding was perverse in that it is the Community and not the individual who made the allegation that provides the Oath. He relied on both the Respondents and Appellants evidence at the trial. That the Respondents too did not also prove that Oath must be administered within 2 days relying on the evidence of DW3 who the Learned Counsel referred to as the Chief Priest. That the trial Court ought to have relied on the evidence of DW3.

The Learned Counsel to the Respondent, E. E. Chukwuka Esq. while responding to Appellants submissions under Issue 1 contended that the Learned trial Judge was right in its finding. He relied on Section 16 of the Evidence Act. That the trial Court relied on Section 74(1) (1) of the Evidence Act 2011 to make her finding. That the trial Judge also stated the manner of proof of Custom under Section 59 (now 70) of the Evidence Act 2011. That it is not enough to rely on facts pleaded in paragraph 20 of the Statement of Defence without calling evidence in respect of all the persons mentioned therein to establish the said Custom.

On failure of the Respondents as Plaintiffs to file a reply to the Statement of Defence concerning facts pleaded in paragraph 20, the Respondents submitted that the position of Appellants that Respondents admitted paragraph 20 of their Statement of Defence as a gross misconception of the Law on pleadings. Respondents opined that Reply is not necessary if the only aim is to deny the allegations made in a Statement of Defence and the settled Law is that allegations in a Statement of Defence are impliedly denied or that there is an implied joinder of issues. He relied on the cases of OBOT VS. CBN (1993) 9 SCNJ 265 at 284 and ISHOLA VS. S. G. BANK (1997) 2 SCNJ 1 at 16. That the case of Henshaw Vs. Effanga Supra is inapplicable. That the DW1, DW2 and DW3 were not Traditional Rulers, Chiefs or Person€™s having special knowledge of Customary Law and Custom of the Community as envisaged under Section 59 of the Evidence Act now Section 70 of Evidence Act, 2011 (as amended).

On failure to take judicial notice of the Custom of the parties concerning Umuowa Ibu Community, the Respondents adopted their arguments under Issue 1 and further submitted that the Case of Stephen Akubuike Vs. Sunday Nwokoro (1979) Supra is not on all fours with the present Case.

That in this case the 1st Defendant/appellant first called his kinsmen (not elders) and told them how 1st Plaintiff poisoned him and how the 2nd Plaintiff tied the womb of his daughter thereby preventing the married daughter from conception. He relied on pages 50 €“ 51 and 55 €“ 56 of the Record. That 1st and 2nd Defendants gathered same kinsmen and went to the house of 1st Plaintiff and stated 1st Respondent poisoned the 1st appellant. That the Appellants did not lay any complaint before the elders as they (Appellants) were the Accusers, prosecutors and Judge thereby making the case of Stephen Akubike where matter was reported to elders in applicable.

On Issue 3 as to whether the trial Judge misdirected himself in holding that 1st Defendant failed to provides. Oath to 1st Plaintiff, the Learned Counsel to the Appellant stated that the trial Judge did not misdirect himself and no miscarriage of justice was occasioned. That the trial Judge unquestionably and justifiably evaluated the evidence of witnesses on pages 91 €“ 92 of the records.

He referred to the admission of DW3 the Chief Priest who admitted that they did not provide 1st Plaintiff with Oath.

This Court will not be persuaded to set aside the findings of a trial Court on the ground that it is perverse or has occasioned a miscarriage of justice unless it is shown by the Appellant that in the performance of its primary duty of appraising and ascribing of probative value to the evidence tendered or proffered before it, the trial Court made improper use of its opportunity of hearing and seeing the witnesses testified and watching their demeanour. In other words, this Court will only interfere with the findings of the Lower Court where it is established that from the pleadings and the evidence led by the parties the conclusion and determination reached by the trial Court are not supported by the facts and evidence before the Court. The Appellant must be able to point out substantial errors of substantive or Procedural Law which if not vacated or set aside will lead to grave injustice against the Appellant.

See (1) GABRIEL A. OGUNDEPO & ANOR. VS. THOMAS

ENIYAN OLUMESAN (2011) 18 NWLR (PART 1278) 54 at 72 C €“ D per FABIYI JSC who said:

€œAn Appellate Court will not make it a practice to set aside a finding of fact if such is supported by evidence on record. However, where a finding is perverse, it will certainly be set aside as properly done by the Court below in this matter. See: Akulaka v. Yongo (2002) 5 NWLR (Pt. 759) 135 at 161; Enang v. Adu (1981) 11 €“ 12 SC 25: Nwosu v. Board of Customs & Excise (1988) 5 NWLR (Pt. 93) 225; Nneji v.Chukwu (1996) 10 NWLR (Pt. 478) 265; Fabumiyi v. Obaji (1968) NMLR 242; Akinola v. Oluwa (1962) 1 SCNLR 352.€

(2) S. A. ADEYEFA & ORS. VS. BELLO BAMGBOYE (2014) 11 NWLR (PART 1419) 520 at 537 H to 538A per MUNTAKA €“ COOMASSIE, JSC who said:

€œIt is common knowledge that responsibility of evaluating the evidence is that of the trial Court that saw and heard the witnesses and it is true that the appellate Court may not interfere or disturb a finding or conclusion in a judgment except in certain circumstances which have been stated and re-stated in many decided authorities of the apex Court.€

It is clear that the Appellants are relying on the facts pleaded in paragraph 20 of their Statement of Defence as a means of establishing whether someone is guilty or liable for defaming the person or character of another person. Perhaps the Appellants are under the illusion that this is a Case of arbitration or disputes referred to a Panel of Customary arbitrators under Native Law and Custom for adjudication. They are mistaken. The case of the Respondents is founded in tort of defamation. The Claims of the Respondents is in tort. The governing laws or principles on how to prove and defend tort of defamation is settled and must be brought into play. The Plaintiffs in this action were under a duty to establish that the words or oral statements credited to the Appellants were actually uttered or spoken by them in the presence of third parties to give the Respondents cause of action and proof that the Defendants (Appellants here) are liable in damages to assuage the damage done to their reputation or ridicule and scorn that were brought upon them by the words spoken against the Respondents to third parties.

See: ALHAJI K. A. GIWA VS. S. A. AJAYI & ORS. (1993) 5 NWLR (Pt. 294) 423 at 431 C €“ D per UBAEZONU, JCA who said:

€œIn a case of defamation of character be it libel or slander, there are certain basic facts which a Plaintiff must prove for his case to take off. They include:

(i) Publication of the defamatory matter.

(ii) The Publication must refer to the plaintiff.

(iii) The publication must have been made by the defendant.

(iv) The publication must be false.

The Plaintiff in order to succeed must plead and prove these facts.€

On page 433 E €“ F of the report NIKI TOBI JCA later JSC (rtd) and this to say:

€œOne basic ingredient of defamation, whether it is libel or slander, is publication. In order to succeed, the Plaintiff must prove the fact of publication. In other words the Plaintiff is under a burden to prove that the defamatory matter was published to third party. And the law requires that the third party must not only be named but must also be clearly identifiable and identified.€

Where as in this case the alleged slander is published in foreign Language it must be pleaded and interpreted in the Plaintiff€™s pleading.

See: CHIEF T. F. ORUWARI V. MRS. INE OSLER (2013) 5 NWLR (PART 1348) 535 at 549 D €“ G per CHUKWUMA €“ ENEH, JSC who said:

€œThere can be no doubt that what seems to have arisen from the apparent joinder of issues as per the above abstracts of their pleadings and according to their briefs of argument, is not the publication per se of the alleged slander at that stage of the cause at the trial, but the correctness of the English translation of the defamatory words from Kalabari Language (a foreign language). This is so as it is trite that a slander uttered in a foreign language must firstly be set out in the original language followed by a literal translation to English otherwise the action is not properly constituted to give rise to a reasonable cause of action before the Court. The instant matter has proceeded to trial wherefore the plaintiff/respondent has sought to prove the alleged defamatory words and has called her witnesses, on whom the burden rests, to demonstrate that the said English translation of the defamatory words is correct, particularly so as the same has been denied by defendant/appellant.€

The Appellants admitted the pleading of the Respondents that the Appellants defamed their characters.

The relevant portions of the Plaintiffs Statement of Claim and the Statement of Defence are paragraphs 1 €“ 20 of the Statement of Claim and paragraphs 1 €“ 20 of the Statement of Defence which are as follows:

€œSTATEMENT OF CLAIM

1. The Plaintiffs are farmers, natives and resident at Umuowa Ibu, Okigwe.
2. The Defendants are natives of Umuowa Ibu. 1st Defendant is a security man at NIHORT MBATO, Okigwe.
3. On the 6th day of February, 2008, there was an emergency communal work to remove the Bamboo Tree that fell and blocked the road at Mpiti Stream in Umuowa Ibu.
4. 1st Plaintiff attended the command work together with other members of the Community.
5. On arrival at the place of work, 1st Plaintiff was hailed by his Chieftaincy Title Ozo-Igbo-ndu and he shook hands with members of the community who so hailed him.
6. 1st Plaintiff shook hands with Emmanuel Okori, (2nd Defendant and senior brother to 1st Defendant) Steven Dim, Livinus Okeke, Ignatus Egbu among others and of course the 1st Defendant.
7. After the work, the worker dispersed to their various house.
8. Surprisingly on Sunday 10th February 2008, the 1st Defendant came to the house of the Plaintiff in company of 2nd Defendant, Steven Dim, Boniface Obijiaku 3rd Defendant, Mrs. Veronica Okereke, Lawson Igwe and a house of other persons.
9. 2nd Defendant addressed Plaintiff on behalf of the group. He said inter alia:

€œChief, Ibu Ogbu Nwa-acho-nwa€

Union means in English:

€œChief, you kill children, yet you want Children€. He said other derogatory words in proverbs.€

10. After him, 1st Defendant addressed the Plaintiff saying that 1st Plaintiff poisoned him. He said categorically.

€œKamgbe Ubochi ahu I€™kwere n€™aka, Mgbe Anaru oru, Abubeghim Onwem. I€™meelam Nsi€

Which means in English:

€œSince you shook my hand that day at work, I have not been myself, you have poisoned me.€

11. 1st Defendant further said to 1st Plaintiff:

€œNwagi Nwoke Raymond Okeke, kechiri afo Adam Nwanyi mere n€™ omutabeghi Nwa kamgbe afo-ano ogara Di.€

Which means in English:

€œYour son Raymond Okeke also tied the womb of my first daughter since 4 years ago as a result she has not been able to bear children.€

12. 1st Defendant further said in the same address to 1st Plaintiff €œChineke Agbagoro m€™ €˜ana na obu gi mere m€™ Nsi, Nwagi nwoke kechie afo ada m€™ nwanyi

Which means in Engish:

€œGod has revealed to me that you are the one who poisoned me and your son tied the Womb of my daughter.€

13. When 1st Defendant was done, Plaintiff asked the persons mentioned in paragraph 6 above whether he did not shake hands with them as well on the day in question and whether they too have been poisoned by him, and they said no.
14. 3rd Defendant insisted that the Plaintiffs would swear to an oath at the village square. The group left.
15. As a result of paragraph 14 above, on the morning 11th of February, Plaintiff assembled all non of Umuowa Ibu, more than 40 of them were all there, and asked Defendants to repeat what they came to say his house the day before. Whereupon Defendants repeated the above defamatory words.
16. The villagers thereon decided that 1st Plaintiff should take Oath in the Customary manner.
17. That Customary manner was to swear to an Oath (Oracle) which the Defendants would provide within 2 days.
18. Within the two days, Defendants did not bring any Oracle. 1st Plaintiff then went to remind Chief Humphrey Udensi that he should remind the Defendants to provide the Oracle for him to swear.
19. After waiting for a period of 11 days of the Defendants€™ failure to provide the Oracle, Plaintiff became impatient and reported the case of defamation against the Defendant to the Police at Okigwe.
20. At the Police the Defendants admitted saying the above defamatory Statements.

€œSTATEMENT OF DEFENCE

1. SAVE as hereinafter expressly admitted the defendants deny each and every material allegation of facts contained in the Statement of Claim as if they were set out seriatim and expressly traversed.
2. The defendants admit paragraphs 1, 2, 3 and 4 of the Statement of Claim.
3. In respect of paragraph 5, the defendants aver that they were not aware of the 1st Plaintiff€™s chieftaincy title and he is therefore put to the strictest proof thereof.
4. The 1st defendant admits, in respect of paragraph 6, that the 1st Plaintiff shook hands with him but adds that when the 1st Plaintiff shook his hand, he (1st Plaintiff) held his hand tightly and said in Igbo Language €œAwum Dimkpa Asaa€ meaning €œI am seven men in one man€. The 2nd defendant and 3rd defendants deny paragraph 6.

Paragraph 7 is admitted.

5. The defendants admit paragraph 8 of the Statement of Claim but add that Veronica Okereke and Lawson Igwe did not accompany them. The defendants aver that they are of Umuosu kindred and only went to plaintiffs with selected members of the said kindred. Veronica Okereke and Lawson Igwe are not of Umuosu kindred.
6. Paragraph 9 is denied. The 2nd defendant aver that he only spoke to the 1st Plaintiff in Igbo Proverb as follows €˜Umeji Ona egbu Obi€™ which means in English €œDoes the Liver destroy the heart€ and he stated that he did not understand the proverb. The 2nd defendant then asked the 1st Plaintiff whether he would do any harm to the 1st defendant in view of the fact they are close relations.
7. In respect of the second paragraph 9, and paragraph 10, the 1st defendant admits the paragraphs and adds that he also asked the 1st Plaintiff to explain what he meant by €œAwum Dimkpa Assa€ but he could not. In further reaction to second paragraph 9 and paragraph 10, the 1st defendant avers that he made the allegations against the plaintiff for two reasons: First, on the 27th day of November 2005, when 1st defendant€™s daughter was married by Anam People of Anambra State, the 2nd plaintiff and his cohorts barricaded the road and attacked 1st defendant€™s daughter and Inlaws as they were going, with all forms of weapons and charms. This incident was looked into by the community which found 2nd plaintiff culpable and fined him. Second, after that February 6, 2008 when 1st plaintiff shook hands with 1st defendant, the 1st defendant had been very sick with severe pain in that his hand and all over his body. The 1st defendant avers that he prayed over the incident and God revealed to him in a dream that the 1st plaintiff was responsible. It was further revealed to the 1st defendant that in order to be free, he should go to 1st plaintiff and shake his and call him €œDimkpa Assa€. This was what the 1st on 10th February 2008 in the company of some members of Umuosu kindred and in an honest belief in his dream. Paragraph 12 is therefore admitted.
8. The defendants deny paragraph 13 of the Statement of Claim and avers that the 1st plaintiff stated that he shook hands with other people on that day and never asked that as a question.
9. The defendants deny paragraph 14 of the Statement of Claim. The 3rd defendant avers that he did not make any comment in the house of the plaintiffs. Rather, it was the 1st plaintiff who, on hearing the words spoken to him by the 1st and 2nd defendants immediately accused the 3rd defendant of master-minding the plan. The wife of the 1st plaintiff then started shouting on 3rd defendant.
10. The defendants admits paragraph 15 only to the extent that the 1st plaintiff assembled the men of Umuowa Ibu on 11th.
11. Paragraph 16 is denied. The defendant avers that it was the 1st plaintiff who offered to take Oath and this was accepted by the community. The 1st plaintiff then stated that the Oath must be provided within 24 hours, but the community rejected that because under custom, an Oath taker does not dictate when and where the Oath would be given to him.
12. Paragraph 17 is denied as there is no such custom in Umuowa Ibu.
13. Paragraph 18 is admitted only to the extent that the 1st defendant went to Humphrey Udensi then told him to wait for the Oath to be provided for him as his accuser was still sick. He was further told that he takes the Oath for the Community and not for any individual.
14. The defendants admit paragraph 19 but adds that the Oath was given to 1st plaintiff because the 1st defendant was aware seeking for a cure to his sickness.
15. The defendants deny paragraph 20.
16. The defendants deny paragraph 21 and add that the 1st plaintiff was impatient and rushed to the Police. The defendant avers that if at all the reputation of the plaintiffs was smeared, it was because of their failure to take the Oath and clear their names as required by custom.
17. Paragraph 22 is denied. The defendants aver that the Police advised parties to go home and settle the matter but the 1st plaintiff went underground and could not be seen in his house. When finally, he was seen, he insisted that the community should come to his house for settlement. Finally he described the community as €˜too-local€™ to hear the case.
18. The defendants deny paragraph 23 and aver that 1st plaintiff€™s father was never a traditional ruler and 1st plaintiff is not contending for the Throne.
19. Paragraph 24 is not admitted.
20. The defendants aver that the allegation made against the plaintiffs is normal under the native law and custom of Umuowa Ibu Community. Any person against whom such allegation is made usually takes Oath in order to clear his name. instances of such allegation and Oath taking abound; examples include late Augustine Okeke (elder brother of 1st plaintiff) who made such allegation against Chief Humphrey Udensi. Humphrey Udensi took Oath and survived it. late Fabian Okorie made a similar allegation against Victor Okorie who also took Oath. Others are Wilson Okorie Versus Late Israel Nwokoro, Emmanuel Eze Versus Eugene Nwosu, Lawrence Anusionwu Versus Lazarus Ugwa (1st plaintiff€™s inlaw); Edwin Obijiaku versus Late Paul Nwosu and many others. The defendants aver the plaintiffs were actively involved in the administration of the Oaths and no time frame is stipulated for the exercise.

It is trite Law that facts admitted need no further proof. See:

(1) ENGR. FRANK OKO DANIEL V. INEC & ORS. (2015) ALL FWLR (PART 789) 993 at 1028 C €“ D per RHODES VIVIOUR JSC who said:

€œAn admission, clearly and unequivocally made is the best evidence against the person making it. Paragraphs 26 and 30 are conclusive evidence that the appellant did not participate in the re-run primaries conducted by PDP on 15 January 2011. They are clear admissions by the appellant.€

(2) MR. SUNDAY ADEGBTTE TAIWO VS. SERAH ADEGBORO & ANOR. (2011) 11 NWLR (PART 1259) 562 at 583 G €“ H to 584 A €“ C per RHODES €“ VIVOUR JSC who said:

€œFinally on this point, in the Court of Appeal, learned Counsel for the Bank and the auctioneer, Mr. Lambo Akanbi (as he then was) agreed that the notice of only one day given by the auctioneer before the auction sale of the property on 17/6/89 was contrary to the requirements of Section 19 of the Auctioneers Law. Section 75 of the Evidence Act states that:

75. No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at eh hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have been admitted by their pleadings. Provided that the Court may, in its discretion, require the facts admitted to lie proved otherwise then by such admissions.€

See Cardaso v. Daniel (1986) 2 NWLR (Pt. 20) p. 1.

Judicial admissions are conclusive. That is to say where a party agrees to a fact in issue, it is no longer necessary to prove that fact. In effect, after an admission no further dispute on the fact admitted should be entertained by the Court. This is the strongest proof of the fact in issue.€

The Custom of the people of Umuowa Ibu or Ibo general Custom of Umuowa Ibu pleaded by the Appellants is wholly irrelevant to the fact in issue in this action which the Lower Court rightly held to have been proved. The trial Court is perfectly right in not taking any judicial notice of such Custom. The matter in dispute was not channeled through customary mediation or Arbitration thus the resolution vide Customary Law of the facts in dispute here are not relevant for consideration.

Even if it can be said that the Customary Law of the people is applicable a fact not conceded, I am at one with the findings of the Learned trial Judge having regard to the pleadings and evidence of the witnesses called by the parties. There is no miscarriage of justice against the Appellants. Issues 1, 2 and 3 are hereby resolved against the Appellants.

ISSUE 4

Did the Court err in Law when it held that the Plaintiff has therefore proved damages.

The Learned Counsel to the Appellants stated that though there were two Plaintiffs but the trial Judge proceeded in his Judgment as if there was only a Plaintiff. That in stating that the Plaintiff (singular according to Counsel) has proved damages the question is which of the Plaintiffs? That the 1st Plaintiff did not give evidence to show he was a Contender for traditional Rulership of his Community. That the evidence he gave was simply ipsi dixit. That the 2nd Plaintiff resides outside the Community. That the Plaintiffs ought to have failed because they did not prove special damage. That slander is not actionable perse except on three circumstances namely:

1. Imputation of Criminal Offence punishable with imprisonment.
2. Imputation of in chastity to a female and
3. Imputation of unfitness or incompetence.

That the alleged defamation did not fall into any of the said three categories.

The Learned Counsel to the Respondent argued in response to the above submissions that the Appellants were just engaging in a belated mischief in that it ought to be obvious to the Appellants that the omission of letter €s€ is typographical error which did not mislead anyone. That from the beginning of the judgment the Learned trial Judge did not make any mistake and made it clear that there are two Plaintiffs. He referred to pages 85 and 93 to show the trial Judge as using the words €œPlaintiffs€ and €œDefendants€.

On the contention that the 1st Plaintiff did not lead evidence that he was a contender for the chieftaincy stool in the community the Respondents referred to page 34 of the Record Lines 10 – 20 thereof. That the trial Judge made finding on this aspect of the case on page 93 of the record lines 2 €“ 5 thereof.

That the Learned trial Judge also made finding that the nature of slander here had criminal imputation or colouration. That the Defendants did not deny that Ezeship stool was filled during the pendency of the case herein. That the Respondents actually proved damages awarded.

I have perused the record of proceedings and I agree with the Respondents Learned Counsel that there was no mistake of any sort on the part of the trial Judge as to how many persons were Plaintiffs. As a matter of fact this was made clearer in the conclusion of the trial Judge thus:

€œAccordingly I make the following Orders:

The 1st and 2nd Defendants are to pay to the Plaintiffs jointly the sum of N2 Million Naira for the defamation of the Plaintiffs€™ character.

1st and 2nd defendants are perpetually restrained from further defamation of the character of the Plaintiffs. 1st defendant will pay to the Plaintiffs N10,000 (Ten Thousand Naira) only being cost of this action.€

The omission of the letter €œs€ in one of the paragraphs of the judgment is grossly insignificant and cannot inure for the benefit of the Appellants.

Contrary to the insinuation of the Appellants that the 1st Plaintiff did not give evidence that he was a contender to the traditional rulership of his Community the 1st Plaintiff actually did on page 34 of the record lines 13 €“ 20 where he testified thus:

€œThis allegation has damaged the name of Okeke family as people who poison people. I have been isolated by the Community. The Chieftaincy stool I am contesting is the reason why the defendants thumped up this allegation against me. My father was a warrant chief in 1918. Now due to this allegation my Ezeship contest is in abeyance. I pray Court to award damages of N2m to me for defamation of character and perpetual injunction.€

The finding of the trial Judge on page 93 of the Record that the 1st Respondent proved the damages claimed cannot be faulted. The Appellants are also saying the Respondents did not prove special damages. I am of the view that the Appellants did not know the nature of claim for damages for slander. Defamation is relevant as ingredient of establishing entitlement to damages which is always at large depending on what occasion, where and the extent the slander was made and disseminated. Once defamation is proved whether in case of libel or slander damages will follow and it is always at the discretion of the trial Court who had opportunity of hearing the evidence of witnesses in the matter. Defamation has been defined and explained as encompassing both libel and slander.

Contrary to the submission of the Appellants slander is actionable perse.

See: CHIEF T.F.O. ORUWARI VS. MRS. INE OSLE (2013) 5 NWLR (PART 1348) 535 at 556 D €“ H to 557 A per CHUKWUMA ENEH JSC who said;

€œLet me for completeness before going further in this discourse examine the meaning of defamation as consisting of libel and slander so as to bring out in the con of this matter their unique distinctions, vis-à -vis the real issue in controversy here, that is in relation to the correctness of the English translation of the defamatory words uttered in a foreign language (i.e.Kalabari) to PW5.

The cause of action in this matter has arisen from the alleged use of defamatory words in a foreign language to disparage the respondent€™s name and integrity. On the whole, defamation as a tort whether as libel or slander, has been judicially defined to encompass imputation which tend to lower a person in the estimation of right thinking members of the society generally and thus expose the person so disparaged (plaintiff) to hatred, opprobrium, odium, contempt or ridicule. See NITEL Ltd. v. Tugbiyele (2005) AFWLR (Pt. 246) 357, (2005) 3 NWLR (Pt. 912) 334, B.P.P.C. v. Gwagwada (1989) 4 NWLR (Pt. 116) 439. It is trite that slander on the other hand has been defined as a false and defamatory statement (i.e. of a transient nature) made or conveyed by spoken words, sounds, looks, signs and gestures or in some other non-permanent form (as against libel which is required to be in some permanent form) published of and concerning the plaintiff that is to a person other than the plaintiff without any lawful justification or excuse whereby the plaintiff has suffered special damages. I must add that slander is actionable per se without proof of damage being required to be proved by the Plaintiff to succeed in the action. See Words and Phrases Legally Used vol. 5, S €“ Z, P. 83, and also Egbe v. Adefarasin (No. 2) (1987) 1 NSCC (vol. 18) 1, (1987) 1 NWLR (Pt. 47) 1.€

The allegations made by Appellants also involve imputation of offence under the Criminal Code Law. The 4th Issue is hereby resolved against the Appellants.

ISSUE 5

Whether the trial Judge failed to consider the defence of qualified privilege available to the 1st and 2nd defendants.

The Learned Counsel to the Appellant stated that the trial Judge failed throughout to consider defence of qualified privilege put forward in paragraph 21 of the Statement of Defence. He relied on the Nigerian Case of MAMMAN VS. SALAUDEN (2006) 135 LRCN 859 ratio 12 on what the defence of qualified privilege means and how it could be sustained.

That the 1st Defendant was only making a complaint about his experience since the 1st Plaintiff had a handshake with him raising a suspicion that he has been attacked spiritually by 1st Plaintiff. Appellants again relied on the case of Stephen vs. Sunday Nwokoro Supra. Appellants further stated that Respondents did not file a Reply to their Defence to contend that Appellants were actuated by malice hence the defence ought to succeed. He relied on ILLOABACHIE VS. PHILLIPS (2000) 8 WRN 79 and GATLEY on LIBEL and slander 7th Edition paragraph 572.

That the trial Judge just went out of his Court to make a case of existence of malice against the defendants when it is settled that a Court must always stand out as unbiased. Impire, according to Appellants. He relied on the case of F.A.A.N. VS. GREENSTONE LTD. 92009) 10 NWLR (Pt. 1150) 624.

In response to the above submissions the Learned Counsel to the Respondents contended that the Appellants failed to tell the Court what private or public duty they were performing when the Appellants who first gathered their kinsmen and told them how God revealed to 1st Defendant in a dream that 1st Plaintiff had poisoned him and that the 2nd Respondent/Plaintiff tied the womb of his married daughter and she cannot conceive.

That the same Appellants repeated the slander before the people of the Community and before the Police the words complained of. They did not at that time called it suspicion. That the issue of qualified privilege is rather misconceived.

Now what is defence of qualified privilege and how must it be raised. The Apex court discussed the principle in the case of CHIEF DR. M. C. A. PETERSIDE VS. PROF. DAGOGO M. J. FUBARA (2013) 6 NWLR (PART 1349) 156 at 175 A €“ G per ALAGOA JSC who said:

€œIn Mamman v. Salaudeen (2005) 18 NWLR (Pt. 958) 478 at 510, paras, D €“ F; (2005) 12 SC (Pt. 11) 46 while enunciating the principles of law on the defence of qualified privilege reliance was placed on the English case of Toogood v. Spyring (1834) 1 SC and R 181 at 193 which stated the law on qualified privilege as follows:

€œIn general an action lies for the malicious publication of statements which are false in fact and injurious to the character of another and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty whether legal or moral or in the conduct of his own affairs, in matters where his interest is concerned. In such a case the occasion prevents the inference of malice which the law draws from unauthorized communications and affords qualified defence depending on the absence of actual malice.€

Further light was thrown on this principle in this case thus,

€œFrom the principle of law involved in the defence of qualified privilege as reproduced, the privileged occasion recognized by the common law can be classified into one of two classes viz:

(a) Where the maker of the statement has a duty (whether legal, social or moral) to make the statement and the recipient has a corresponding duty to receive it or;

(b) Where the maker of the statement is acting in a matter in which he has a common interest with the recipient.€

See James v. Baird (1916) SC (H.L.) 158 at 163 €“ 164; Hunt v. Great Northern Railway (1891) 2 QB 189 at 191; Ologe v. Ukaeje (1998) 12 NWLR (Pt. 576) 23; Onyejike v. Anyasor (1992) 1 NWLR (Pt. 218) 437.€

The Appellant Learned Counsel had stated under Issue 5 page 13 that the alleged defamatory statements were made on privileged occasion. The statement is contrary to facts pleaded in paragraph 21 of the Statement of Defence wherein the Appellants pleaded as follows:

€œ21 The defendants shall contend that this action is incompetent and improperly constituted. The defendants shall further contend that the Statements made by the 1st and 2nd defendants were not defamatory as the occasions were privileged.€

The above quoted pleading does not require any Reply or plea of actual malice by the Plaintiffs. This is because a person will only be entitled to plea of defence of qualified privilege where he admitted making the defamatory statements but that it was made on a privileged occasion and that such occasion prevents the inference of malice which the Law draws from unauthorized communications and affords qualified defence depending on whether or not there is actual malice. See PETERSIDE VS. FUBARA Supra page 175.

The Appellants denied the Statement being defamatory in paragraph 21 when in on their own volition they admitted making all the statements. They admitted it in their pleadings and evidence before the Lower Court.

The Appellants relied on the dream had by 1st Defendant as part of what influenced them to make the statement especially 1st Defendant/Appellant. That GOD revealed all he said against 1st Respondent in a dream he had.

The Court room is not an abode of the biblical Joseph the Dreamer who was stated in the Holy Bible to be endowed with knowledge and of interpreting and discovering the meaning of dreams. The Court is not in the spiritual realm and it is not a magician. It relies on hard facts and evidence, real evidence and not imaginable fantasies bordering on speculations and conjectures upon which the Appellants built their defence in this Case. No Court will believe them.

The Learned trial Judge was therefore right when he said on page 91 of the record thus:

In the first instance 1st defendant told this Court that God revealed to him in a dream that it was 1st Plaintiff that caused his ailment by the hand shake given him. Note that defendants never debunked the issue which arose that 1st defendant was not the only person 1st plaintiff gave a hand shake to on that particular day. 1st defendant went further to say that God also revealed to him that the cure was for him to confront 1st plaintiff shake him back and utter back the words 1st plaintiff uttered when he shook 1st defendant€™s hand. According to 1st defendant that was what he came to do on that 10th February in the house of 1st plaintiff with witnesses. In as much as I will not delve into the divine or spiritual, constructive reasoning will show that if 1st defendant actually heard from God and believed God, having confronted 1st plaintiff on that day, the matter would have been left for God to decide according to God€™s revelation to 1st defendant. Also 1st defendant would have timeously provided the oath for 1st plaintiff to take as it is also a way believed by custom to find out God€™s hand in the matter.€

The Appellants placed no defence of qualified privilege before the Lower Court and so none was pleaded and none was established.

Issue 5 is resolved against the Appellants.

I will take Issues 6 and 7 together.

ISSUES 6 AND 7

6.DID THE TRIAL COURT ERR IN LAW WHEN IT HELD THAT THE STATEMENT OF THE 1ST AND SECOND DEFENDANTS AMOUNTED TO AN IMPUTATION OF CRIME

7.WHETHER THE TRIAL COURT ERRED IN AWARDING THE SUM OF TWO MILLION NAIRA (N2,000,000.00) AGAILNST THE 1ST AND 2ND DEFENDANTS.

Under Issue 6 the Appellants again argued that the Statement of 1st and 2nd Defendants are not an imputation of Criminal Offence punishable by imprisonment because there must be direct imputation of an offence and not merely of suspicion of it. Appellants relied on the TORT BOOK WINFIELD & JOLOWICAZ ON TORT 17th Edition page 519 and SUMMONS V. MITCHED (1880) 6 App Caps. 156. That the totality of evidence before the court does not show direct imputation of offence. That the decision to take Oath simply shows that it was only a case of suspicion of commission of offence.

Under Issue 7 the Learned Counsel to the Appellants submitted that the award of N2 Million against the Appellants is erroneous and it is excessive having regard to the personalities of the 1st and 2nd Appellants, the community they reside and their close a firmly being members of same kindred and other surrounding circumstances. That this court will interfere with damages awarded where it is shown:

(a) That the trial Court acted upon wrong principles of law.

(b) That the amount awarded is ridiculously too low or high or

(c) That the amount was entirely erroneous and unreasonable estimate having regard to circumstance.

Appellants relied on the case of ODUWOLE & ORS VS. WEST (2010) 186 LRCN 146 ratio.

That in this case the 1st Plaintiff while testifying on 23/9/2008 as PW1 informed the trial court he was a farmer while 2nd Plaintiff as PW3 to the trial court on 25/9/2008 that he was a musician and lives at Ihube Okigwe, a rural Area.

That the trial Judge in her judgment did not do any assessment and did not show any basis for the award made. That 1st Plaintiff merely said he was a candidate for the traditional stool of his community without any documentary evidence backing his candidacy or that he was by that allegation disqualified by any panel or body responsible for the selection. That the award is perverse and ought to be set aside relying on the case of OZIGBU ENG. CO. LTD VS IWUAMADI (2009) 16 NWLR (PART 1166) 44 ratio 1 and 7.

In conclusion the Appellants submitted that the judgment and ORDERS OF Trial Court were based on wrong principles and improper evaluation of the facts of the case. Appellants Learned Counsel urged this court to set aside the judgment and dismiss Respondents claims.

In reply to argument under issue 6 the Respondents Learned Counsel contended that the Learned trial Judge was perfectly in order when he held that the Statement of Defence amounted to imputation of crime. That the evidence on recorded supported the findings of the trial Court. He referred to evidence of DW1, 1st Appellant to submit that the Defendants did not mince words that the Plaintiffs had poisoned the 1sat Defendant and his daughter. He relied on Section 210 (b) of the Criminal Code,

On Issue 7 the Learned Counsel to the Respondents justified the award of N2 Million made against the Appellants due, according to him, the incalculable damage done to Respondents names makes it right. That the Appellants have not pointed to any wrong principle of law the trial judge committed.

That the Appellants referred to the lowly status of Respondents of being a farmer and a musician without citing any authority to the effect that a farmer and a musician in Nigeria are persons of low estate and undeserving of substantial damages for defamation of their persons.

He relied on the case of ODUWELE V. WEST Supra to contend that the award of N2 Million was rightly made. The argument proffered under issue six have been adequately dealt with under issues 4and 5 and I will adopt my reasoning and conclusions under the said issues to resolve issue six against the appellants.

On Issue 7 as to whether the award of N2 Million in favour of Respondents is not erroneous, excessive and without basis.

Now libel or slander is actionable per se. The laws presumes that damages must naturally flow from a tort action against a person who goes out of his way to open the gate house of his tongue too made and allowed a misuse of his tongue against the characters or persons of others by committing slander. The same is true of false publication or libel by one person against another person.

This Court will not just interfere with exercise of discretion of the trial court in the award of damages made unless it is shown to be outrageous, excessive or did not flow from the defamation proved or committed on the person, character and reputation of the person libeled or slandered.

See:

(1) ALHAJI ADAMU CIROMA VS ALHAJI M. KALOMA ALI & ORS (1994) 2 NWLR (PART 590) 317 at 330 A €“C per ATINUKE IGE JCA (of blessed memory) who said:

€œIn action involving libel the question whether the words complained of are in fact defamatory is that of the jury to decide while the question whether they are capable of conveying a defamation in the mind of reasonable persons in a particular case is for a judge to decide upon the evidence before him. In Nigeria where there is no jury trial, it is duty of trial Court to make findings of fact whether the words complained of are capable of bearing defamatory meaning and whether the plaintiff is actually defamed by these words see the case of Sketch v. Ajugbemakeferi (1989) 1 NWLR (Pt. 100) 678. What really is defamation? Defamation is any imputation which may tend to lower the plaintiff in the estimation of right thinking members of the society generally and expose him to hatred contempt or ridicule defamatory of him. An imputation may be defamatory whether or not it is believed by those to whom it is published. In the case of libel and slander actionable per se the publication of the matter containing defamatory imputation is actionable without proof of damage. The law will presume that damage. The law will presume that damage flows from such publication. See Gatley on Libel & Slander 7th Edition page. 6.€

(2) MR. BIODUN ODUWOLE & Ors. V. PROFF TAM DAVID €“ WEST (2010) 6 SCM 174 at 187 D €“ G per FABIYI JSC who said:

€œAs a matter of general principle, an appellate Court would not interfere with an award of damages by a trial Court simply because faced with a similar situation and circumstances it would have awarded a different amount. An Appeal Court will however interfere with an award by a trial Court where it is clearly shown:-

(a) that the trial Court acted upon wrong principle of law, or

(b) that the amount awarded by the trial Court is ridiculously too high or too low;

(c) that the amount was an entirely erroneous and unreasonable estimate having regard to the circumstances of the case.

For the above, See: Zik€™s Press Ltd. v. Ikoku 13 WACA 188; Williams v. Daily Times (1990) 1 NWLR (Pt. 124) 1 at 49, 55; James v. Mid-Motors (1978) 12 SC 31; Eboh v. Akpolo (1986) 1 All NLR 220; Idahosa v. Oronsaye (1959) SCNLR 407; Bala v. Bankole (1986) 3 NWLR (Pt. 27) 141.

The assessment of damages in a libel action is usually subjective. So, an award in an unrelated case cannot be a useful guide. Whatever method of assessment is employed, a great part of the exercise of assessment must be arbitrary. See: Offoboche v. Ogoja Local Govt. (supra) at 458.€

That someone is a farmer or a musician or Gateman or even a House help will not detract from the fact that he or she is a human being who is protected under the law and the constitution of Nigeria 1999 as Amended which protects his or her person, character or reputation from being unjustifiably disparaged. What is good for the goose is also good for the gander.

The Respondents are entitled to an amount of money or award of damages that will commensurably assuage the damage the unguarded Appellants statements have caused to their characters and images before the right thinking members of their community and society at large see HIS HIGHNESS ULYO 1 VS. FELIX EGWARE (1974) ALL NLR (Pt. 1) 293 at 297 where the Supreme Court said:

€œSuch an award must be adequate to repair the injury to the plaintiff€™s reputation which was damaged, the award must be such as would atone for the assault on the plaintiffs€™ character and pride which were unjustifiably invaded; and it must reflect the reaction of the law to the imprudent and illegal exercise in the course of which the libel was unleashed by the defendant.€

Issues 6 and 7 are hereby resolved against the Appellants.

Consequently Appellants appeal lacks merit and the said appeal is hereby dismissed in its entirety.

The judgment of the High Court of Imo State, Okigwe Judicial Division delivered by HON. JUSTICE IJEOMA AGUGUA on the 7th DAY OF May, 2009 is hereby affirmed.

The Appellants shall pay costs assessed at N30,000 (Thirty Thousand Naira) to the Respondents.

---

Other Citations: (2016)LCN/8737(CA)