IN THE HIGH COURT OF IMO STATE
IN THE MBAISE JUDICIAL DIVISION
HOLDEN AT HIGH COURT OF JUSTICE, AHIAZU MBAISE
ON THE 3RD DAY OF OCTOBER, 2017
BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA
SUIT NO.:- HAM/57/2016
BETWEEN
BENJAMIN CHUKWUNYERE PLAINTIFF
AND
1. MR. PETER IWUCHUKWU
2. MRS. IJEOMA IWUCHUKWU DEFENDANTS
JUDGMENT
By Writ of Summons dated 21st April 2016 and filed on the 25th April 2016, the Plaintiff claims against the Defendants as follows:
a. The sum of N5, 000,000.00 (Five Million Naira) from each of the Defendants for defamation in that the Plaintiff was slandered by the 1st Defendant who on the 8th day of March, 2016 at an Oil Mill in Ogbor Umuegwu Mpam published to Mr. Bernard Anyanwu, Mrs. Josephine Anyanwu, Mrs Anna Nwagu, Mr. Chibuike Ezeji and Mrs. Nkechinyere Ababa the following words: “Benji iwu ritualist. I richaala umunne gi nile. I ghaghi erinwu m out isi rie umunne gi nile” which when translated into English means: “You are a ritualist. You have killed all your siblings, you cannot kill me the way you killed your siblings. And by the 2nd Defendant who published to the same persons and at the same time and place the following words: “Eeh! I richaala umunne gi nile” which in English means: “Yes! You have killed all your siblings.”
b. An unreserved apology from the Defendants to the Plaintiff to be published to the Ogbor Umuegwu General Assembly at a general meeting of Aladimma Ogbor Umuegwu Mpam
c. An injunction perpetually restraining the defendants, their agents, servants from further publishing or circulating or peddling the said slanderous statement or any other statement defamatory of or affecting the Plaintiff’s reputation.
PLAINTIFF’S CASE
In proof of his case the Plaintiff called 3 witnesses.
The Plaintiff, Mr. Benjamine Chukwunyere testified as PW1: He is a well known farmer with his farms in Umuihembu Ogbor Umuegwu Mpam, Opkala in Ngor-Okpala Local Government Area of Imo State and in Abia State.
He came back home from Aba on or about the 8th day of November, 2015 and went to inspect his oil palm plantation. While on his way to the farm via an ancient footpath near the Defendants’ house, the 2nd Defendant remarked to his hearing that he should know that there is no thoroughfare there. He overheard that comment, but merely greeted the 2nd Defendant’s father in-law and continued his journey to his farm, ignoring the 2nd Defendant’s said comment. On his way back from his farm, the 2nd Defendant confronted him and told him that he should never use that old foot path again as that is no thoroughfare and warned him that any other time that she sees him passing through that footpath, she would pour hot water on him.
He was shocked at such unwarranted comment and threat. He then asked her why she was not afraid of a man bearing a machete because he was holding a machete. But to his chagrin, the 2nd Defendant rained abused on him, went inside the bush, cut a cassava stem and threatened to flog him with it, charging at him. She was only restrained when a woman who was nearby called her and asked whether she was mad and whether she really knew whom she was insulting. The 2nd Defendant shouted the following defamatory words: onye ogwu ego. I richaala umunne gi. I chere si I ga-erinwu m out I siri rie umunne gi.”Which in English means: You ritualist! You have killed all your siblings. Do you think that you can kill me as you killed all your siblings. He was really hurt by those words and he was preparing to report the 2nd Defendant to the police but he was dissuaded and he relented.
On the 8th day of March 2016 he went to the Oil Mill belonging to Mr. Chibuike Ezeji to collect his cell phone which he had given to Mr. Chibuike Ezeji to charge it battery for him. At the Oil Mill were Mr. Chibuike Ezeji, Mr. Bernard Anyanwu (Alias Mgbo), Mrs. Josphine Anyanwu, Mrs. Nkechinyere Ababa and Mrs. Chioma Nwagu who were there processing palm fruits. After collecting his phone, he sat down on a bag of palm kernels and started cracking jokes with the persons at the mill and everybody was laughing. Suddenly, the 1st Defendant, Mr. Peter Iwuchukwu walked in with his wife, Mrs. Ijeoma Iwuchukwu the 2nd Defendant. Upon entering into the mill, he told him to the hearing of others that it was him that they were looking for. And he asked him whether he would want them to go to his house or they would want to discuss with him there. The 1st Defendant said he wanted it there.
To his surprise, the 1st Defendant called the attention of everybody to listen to what he was going to say and everybody gave him attention. The 1st Defendant began by saying as follows: “Benjy, this wife, I did not marry her for you. When I married her, you did not go with me and when you married your own, I did not go with you. Stop castigating and maligning my wife. Stop peddling falsehood against my wife, otherwise, I will do to you in this village what any man that hears it will not believe that I did it”.
He could not understand what he meant. Then Mr. Bernard Anyanwu asked him to make himself clear and explain what the issue was but the 1st Defendant started calling him names. The 1st Defendant said: You riff-raff (in English) and continued by saying: “I wu rituialist. I richaala umunne gi nile. I gaghi erinwu m out isi rie umunne gi nile.” The word in English mean: You are a ritualist. You have killed all your siblings. You cannot kill me the way you killed all your siblings.
These words shocked everybody at the mill. These words which the 1st Defendant uttered meant and were understood to mean that he is a ritualsit, a murderer and he murdered all my siblings.
While he was trying to get over the shock infused in him by the words that came to him like a thunder-bolt, the 2nd Defendant walked up to him where he was sitting on a bag of palm kernel and said to the hearing of everybody thus: Eeh! I richaala umunne gi nile” which in English means: Yes! You have killed all your siblings”.
The publication of the aforesaid word to the persons at the mill on the said date ignited phone calls from far and near from people who were calling him, asking him what they heard that he did. He is a very generous and philanthropic individual, prominent farmer and well known in Umuegwu Mpam and beyond as a public spirited individual and he has made immense contributions to the development of his community. He has trained so many people in Umuegwu Mpam. He has funded many church projects in Umuegwu Mpam. He has in consequence of the publication of these slanderous words by the Defendants been seriously injured in his character, credit and reputation and has been brought into public scandal, odium and contempt. He has been reduced and his reputation lowered in the estimation of right thinking members of the public.
The defendants have no reason whatsoever to publish the defamatory words complained of, other than to scandalize him and bring him to public ridicule and opprobrium. The defendants published the said words knowing that they are false. That he is now being regarded as evil man and a murderer who should be shunned and avoided; he has been presented in a very bad light before the public in Umuegwu in particular, Mpam and beyond for an allegation that has no scintilla of truth whatsoever but only existed in the imagination of the Defendants.
He was not quarreling with the Defendants when they uttered the defamatory words. He has lost many friends since the Defendants published these defamatory words against him. Many of his friend who used to visit him any time he came home no longer come near him since they heard the words that the Defendants published against him. His extended family members now regard him with suspicion and they now avoid him. He is not an evil man. He is not a ritualist, nor is he a murderer. He is not responsible for the death of his siblings, anybody in his family, Umuegwu or anywhere in the world. The Defendants just wanted to and have succeeded in maliciously injuring his character, person, integrity and reputation.
Chibuike Ezeji testified as PW2 that he is a photographer. On the 8th day of March, 2016, he was at his Oil Mill situate at Umuihembu Ogbor Umuegwu Mpam in the Ahiazu Mbaise Local Governemt Area, Imo State. He was there with persons who came to process palm fruit at the mill. The persons were: Mr. Bernard Anyanwu and his wife Mrs. Josephine Anyanwu, Mrs. Anna Nwagu, Mrs Nkechinyere Ababa and the Plaintiff. About 2 o’clock in the afternoon, while they were still there the defendants walked in. When the 1st Defendant saw the Plaintiff there, he told him that it was he that they were looking for. The 1st Defendant called the attention of everybody present and asked them to listen to what he wanted to say.
Everybody gave him attention. He began by saying that when he married his wife, the Plaintiff did not go with him and that when the Plaintiff married his, he himself was not there. The way he had been castigating and maligning his wife and peddling falsehood against her destroying her name would no longer be tolerated. If he continues to castigate his wife that he would do to him what any person that hears it would not believe that he did it.
Because of the degree of insult that the 1st Defendant was pouring on the Plaintiff whom he knows very well is the 1st Defendant’s elder, he ordered him to leave his oil mill. As he ordered him to leave, the 1st Defendant told him he is the next target. He then turned to the Plaintiff and called him a riff-raff and added the following in Igbo: I wu ritualist. I richaala umunne gi nile. I gaghi erinwu m out I si rie umunne gi nile.
This shocked him, causing him goose pimples. Upon hearing such words from the 1st Defendant he charged at him and started pushing him out of his mill while the 2nd Defendant went to the Plaintiff where the Plaintiff sat and was shouting at him. But his attention was on the 1st defendant. He did not hear clearly what the 2nd Defendant was saying.
The 1st Defendant picked up a pipe made of asbestos and rushed to the Plaintiff and hit him at the back of his neck. He grabbed the 1st Defendant and pushed him out. The Plaintiff went home.
All of them at the mill understood the statement made by the 1st Defendant to mean that the Plaintiff is an evil man and a murderer and that he is responsible for the death of his siblings. That ever since the 1st Defendant uttered the words he has been scared of Plaintiff. Many people now avoid the Plaintiff as an evil man.
That the Statement complained of has damaged the character, name and reputation of the Plaintiff in Ogbor Umuegwu, Mpam and beyond. The Plaintiff’s extended family members and the Umuihembu Kindred now regard the Plaintiff with suspicion many are scared of him. He knows as a fact that the Defendant wanted to injure the character and reputation of the Plaintiff and he has succeeded to a great extent.
Bernard Anyanwu testified as the PW3 and stated that on the 8th day of March 2016, he was at the Oil Mill belonging to Mr. Chibuike Ezeji of Umuihembu Ogbor Umuegwu Mpam in the Ahiazu Mbaise Local Government Area of Imo State.
Other persons who were at the Oil Mill were his wife, Mrs. Josphine Anyanwu, Mr. Chubuike Ezeji, the owner of the Mill, Mrs. Nkechinyere Ababa, Mrs. Anna Nwagu and the Plaintiff. They were there chatting happily, when the Defendants walked into the mill at about 2pm. The Defendants greeted the people there and called the attention of the people by saying: “Dee Mgbo (that is myself) chie nti, nwunye dee Mgbo (that is my wife) chie nti, nwunye Dee Tim (that is Mrs. Anna Nwagu) chie nti, nwunye Shadrack (that is Mrs. Nkechinyere Ababa) chie nti, Benjy, Benjy, benjy chie nti. He continued: Benjy when you married your wife, I did not go with you and when I married mine you did not go with me. This is the first and last you will come to where my wife is again and insult her. I did not marry her for you. You have been castigating my wife and destroying her name by peddling falsehood against her”.
He couldn’t understand what he meant but he kept listening. The 1st Defendant turned to the Plaintiff and called him a riff-raff. And shouted to the hearing of all of them: Benjy iwu ritualist. I richaala umunne gi. I gaghi erinwu m out isi rie umunne gi nile. This means: benjy you are a ritualist. You have killed all your siblings. You cannot kill me the way you killed all your siblings.
He was shocked to the marrows on hearing it. He understood the statement to mean that the Plaintiff is a ritualist, a murderer and that he is responsible for the death of all his deceased siblings.
The 2nd Defendant also walked up to the Plaintiff where he sat on a bag of palm kernel dumb-struck by the 1st Defendant’s statement and said: “Eeh! I richaala umunne gi nile” which in English means: “Yes! You have killed all your siblings” When the 2nd Defendant said that, the Plaintiff was so infuriated that he picked up some kernels and attempted to throw them at the 2nd Defendant but stumbled upon a heap of palm kernels and fell. The 1st Defendant charged at him and hit him at the back of his neck with a pipe made of asbestos, before Chibuike Ezeji, the owner of the Mill intervened and started ordering the 1st Defendant to leave his mill. Chibuike started pushing the 1st Defendant out of his mill.
The Plaintiff left in annoyance and went to his house thoroughly embarrassed. He began to regard the Plaintiff from that day as a person to be avoided and have been keeping him at arm’s length ever since.
He is not the only person that avoids the Plaintiff; many people in the entire Ogbor Umuegwu have been avoiding him having heard from the Defendants that he is a ritualist and murderer. He knows as a fact that the character and reputation of the Plaintiff has been destroyed by the defamatory statement made by the defendants
At the end of the evidence the Plaintiff’s counsel filed final written address and formulated two issues for determination thus:
a. Whether from the totality of evidence led, the Plaintiff has not been able to prove his case based on the requirement of minimum proof in an undefended case.
b. Whether the Plaintiff is not entitled to judgment.
It is submitted that considering the totality of evidence led before this court, the Plaintiff has succeeded in proving his case based on the requirement of minimum proof in a case that is not defended. The originating processes were duly served on the Defendants and they refused to come to court. As a general rule, service of all originating processes is required by law to be personal. See that case of Management Enterprises Limited V Otusanya (1987) 2 NWLR (Pt. 55) 179. Nwankwo v Kanu (2010) 6 NWLR (Pt 1189) 62; Order 7 Rule 2 of the High Court of Imo State (Civil Procedure) Rules 2017
It is submitted however, that circumstances may be such that personal delivery is impossible, improbable or greatly inconvenient, inexpedient, or impracticable. In order not to frustrate the suit, the Rules of Court of various States and the Federal Capital Territory provided for other modes of getting the processes to the notice of the Defendant, thereby obviating the need for personal service. These other modes of bringing the processes to the attention of the Defendant are legally referred to as substituted service. Order 7 Rule 5 of the High Court of Imo State (Civil Procedure) Rules provide for substituted service of originating processes and the circumstances under which such substituted service can be ordered by court.
It is submitted that the essence of service is to bring the suit to the knowledge or notice of the Defendant and the jurisdiction of the court would not be said to have been properly invoked until the Defendant is served. See the case of Sken Consult v Ukey (1981) 1 SC 1 and 6. Where a writ of summons is not served, the court lacks jurisdiction even if the Defendant enters an appearance. See NBN v Guthrie (1993) 4 SCNJ 1, (1993) 3 NWLR (Pt. 284) 643. But where the originating processes have been duly served on a Defendant in line with the rules or in compliance with the order of court sought and obtained in accordance with the rules of court and such a Defendant fails, neglects or refuses to enter appearance or file his defence, the Plaintiff can, with the leave of court, proceed to prove his case.
It is submitted that Order 10, Rule 2 and 12 and Order 20 Rule 9 of the High Court of Imo State (Civil Procedure) Rules, 2017 which are in pari materia with the provisions of Order 10 Rules 2 and 12 and Order 20 Rule 9 of the 2008 Rules provide for the steps to be taken in default of defence and appearance. The steps were taken in this matter.
It is submitted that in the instance case, the originating processes were served on the Defendants and the Defendants failed, neglected or refused to enter appearance or file any defence or even come to court. Leave of court was sought and obtained for the Plaintiff to prove his case.
In proof of his case, the Plaintiff testified and called two witnesses who were present when the Defendants uttered and published the defamatory words and they understood the words to mean that the Plaintiff has killed all his siblings and is an evil man. The exact words used by the Defendants were stated by all the witnesses- PW1, PW2, PW3 – and duly pleaded in the statement of claim. Referred to Yusuf v Gbadamosi (1993) 6 NWLR (Pt. 299) 363 at 371, to the effect that the exact words must be given in evidence.
It is submitted that all the witnesses gave in evidence the exact words used by the Defendants which words clearly defamed the plaintiff and have lowered him in the estimation of al right-thinking members of the public, particularly in Mpam community.
It is submitted that it is trite law that where a matter is undefended, the Plaintiff has no burden to prove his case on a balance of probabilities, but on a minimum proof principle or basis. Referred to Ogunjumo v Ademolu (1995) 4 SCNJ p 45 at p. 54 lines 1-5 where the Supreme Court said: The nature of proof in a given case must be dictated by the particular circumstances of the available evidence. That in an uncontested case a Plaintiff may establish his case by minimum proof while a contested case may be established by a balance of probabilities.”
It is submitted that in this very case, the Defendants had every opportunity to enter their defence but they deliberately and defiantly refused to do so. The court is urged to consider the available evidence and give judgment to the Plaintiff.
It is submitted that for a Plaintiff to succeed in a case of slander, he must plead and prove the following essential ingredients:
1. The words of the slander
2. Publication of the words to a third party
3. That the words are defamatory
4. Damages where the slander is not actionable per se.
See Yusuf v Gbadamosi (supra), Cross River State Newspaper Corp. V Oni (1995) 26 LRCN 52 at 77
It is submitted that the Plaintiff and his witnesses have proved the exact words used by the Defendants, the publication of the defamatory words to the PW2, PW3 and others mentioned in the statement of claim and depositions of the PW1, PW2, and PW3; that the words are defamatory of the person and character of the Plaintiff and damages for such defamatory publication by the Defendants.
All the ingredients as by law required are present and they have been proved. The court is urged to hold that the Plaintiff has proved his case based on requirement of minimum proof in an undefended case.
On issue 2, it is submitted that the Plaintiff is entitled to favourable judgment of the court having proved his case based on the requirement of minimum proof.
It is submitted that the originating processes of this suit were duly served on the Defendants to bring to their attention the existence of this suit and to properly invoke the jurisdiction of this court. The court in its wisdom ordered several hearing notices to be served on the Defendants and they were duly served and proofs of service filed and yet the Defendants defiantly refused to defend the case. No step was taken in this case without the court ordering that hearing notice be served on the Defendants which orders were fully complied with. The Defendants were therefore, given fair hearing. Fair hearing implies an opportunity to be heard and not compulsion to be heard. The Defendants had ample opportunity to be heard but they stubbornly spurned such opportunity. Relied on Pam v Mohammed (2008) 5KLR (Pt 255) p 2363 at 2368.
It is submitted that the parties in this case were afforded equal opportunities to put their case to the court but the Defendants spurned the opportunity. They cannot later be heard to complain of denial of fair hearing,
It is submitted that where a party has proved his case according to law or in accordance with the provisions of the rules of court, such a party is entitled to favourable judgment. In the instant case, the Plaintiff, in compliance with the rules of this court and the order of the court granting him leave to prove his case, has proved his case and is therefore, entitled to judgment and the court is urged to so hold.
In conclusion it submitted that looking holistically at the facts of this case and the evidence led as well as the attitude of the Defendants to this case and considering particularly the fact that the Defendants were fully aware of this case as they were served with the originating processes and other processes as well as several hearing notices, the Plaintiff is entitled to judgment
RESOLUTION OF MATTER
The defendants were served with the originating processes. The affidavit of service indicated they were served with the Writ of Summons on the 9th May 2016. When they failed to put up appearance or file any processes, the Plaintiff filed motion for judgment or in the alternative leave to proof his case in the absence of the Defendants. The motion was served on the Defendant on 10th November 2016. Defendants did not respond to the motion and still did not put up appearance. Order for judgment was refused while the Plaintiff was granted leave to prove his case.
Hearing Notice was served on the Defendants on 30th January, 2017, 15th February 2017, 4th March 2017, 11th April 2017, 4th May 2017, 17th May 2017, 2nd June 2017 and 7th June 2017 . The deduction from this is that the matter was severally adjourned at the instance of the Defendants all of which were ignored by the Defendants.
From the pleadings and evidence led, it is my opinion that the issues here is whether the Plaintiff has proved that the words allegedly uttered by the Defendants are defamatory and indeed defamed him so as to entitle him to reliefs sought.
It is been stated that slander is murder with words. It can lead to the social death of the person who is slandered and is exactly what its perpetrators set out to accomplish.
The case of the Plaintiff is on or about the 8th day of November, 2015, the 2nd Defendant shouted the following defamatory words: “onye ogwu ego. I richaala umunne gi. I chere si I ga-erinwu m out I siri rie umunne gi.”Which in English means: You ritualist! You have killed all your siblings. Do you think that you can kill me as you killed all your siblings. That was during a confrontation with the 2nd Defendant on the path way leading to his farm through the 2nd Defendant’s compound. This seem not to be what prompted this action
On the 8th day of March 2016, he went to the Oil Mill belonging to Mr. Chibuike Ezeji to collect his cell phone. At the Oil Mill were: Mr. Chibuike Ezeji, Mr. Bernard Anyanwu (Alias Mgbo), Mrs. Josphine Anyanwu, Mrs. Nkechinyere Ababa and Mrs. Chioma Nwagu who were there processing palm fruits. Suddenly, the Defendants, walked in and told him to the hearing of others that it was him that they were looking for. The Defendants called the attention of everyone around and said: “Benjy, this wife, I did not marry her for you. When I married her, you did not go with me and when you married your own, I did not go with you. Stop castigating and maligning my wife. Stop peddling falsehood against my wife, otherwise, I will do to you in this village what any man that hears it will not believe that I did it”. You riff-raff (in English) and continued by saying: “I wu rituialist. I richaala umunne gi nile. I gaghi erinwu m out isi rie umunne gi nile.” The word in English mean: You are a ritualist. You have killed all your siblings. You cannot kill me the way you killed all your siblings.
The 2nd Defendant equally walked up to him where he was sitting on a bag of palm kernel and said to the hearing of everybody thus: Eeh! I richaala umunne gi nile” which in English means: Yes! You have killed all your siblings”.
It is the incidence of 8th March 2016 that is the foundation of this suit. The Plaintiff claims he has been slandered by these words spoken by the Defendants.
It is important I state at this point that words which are merely insulting are not actionable as libel or slander per se. Ordinary words of general abuse however vitriolic, venomous, denigratory, ill-natured or vexatious, whether written or spoken, do not constitute a basis for an action for defamation. The fact that the language is offensive to the plaintiff does not make it actionable by itself. To be taken into consideration is the circumstances surrounding the use of such words. Hence in ADEYEMO & ANOR v. AKINTOLA (2003) LPELR-10905(CA); [2004] 12 NWLR (Pt.887)390 the Honourable Court of Appeal stated:
“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.” Per OMAGE, J.C.A. (Pp.14-15, Paras.G-B).
Slander is libel committed by oral means, instead of in writing. It is defined as ‘the speaking of base and defamatory words which tend to prejudice another in his reputation, office, trade, business or means of livelihood.’ The elements of slander are:
(1) There must be an imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, status or circumstances;
(2) made orally;
(3) publicly;
(4) and maliciously;
(5) directed to a natural or juridical person, or one who is dead;
(6) which tends to cause dishonor, discredit or contempt of the person defamed.
Now from the evidence before the court the incidence of November 8, 2015 could be said to have been said in a moment of quarrel, the incidence of 8th March 2016 cannot be said to be so. If anything at all it proves a fact that it has been well considered and thought out by the Defendants for them to have repeated same four months after. This is evidence in the fact that the Defendants refused the option to talk over the issue at home but decided to make it a public. He even called the attention of all the people present to. He was not quarreling with the Defendants when they uttered the words
I have found that the words were not used in the heat of argument. The Defendants were very much aware of what they set out to say. What follows is to find if the words are slanderous.
The court in determining whether the words are capable of a defamatory meaning has to engage in finding of fact. The test in determining whether the words complained of are defamatory is always that of a reasonable man. What is the understanding of a fair and reasonable person of ordinary intelligence who are neither unusually suspicious nor unnaturally naïve. The meaning allegedly conveyed must not be arrived at after some overwrought and unnatural construal. It is slanderous if reasonable men to whom the publication was published would understand them in the libelous sense. The words must be construed holistically. See EGBUNA V. AMALGAMATED PRESS OF NIG. 1967 ALL NLR 27 AT 28; OKAFOR V. IKEANYI (1973) 3 – 4 S.C. 99; OKOLO V. MIDWEST NEWSPAPER CORPORATION (1977) 1 SC 33; SKETCH PUBLISHING COMPANY LTD & ANOR V. ALHAJI AZEES A. AJAGBEMOKEFERI (1989) 1 NWLR (PT. 100) 678; CHIEF NYA EDIM EKONG v. CHIEF ASUQUO E. OTOP & ORS(2014) LPELR-23022(SC); EGBEBU v. IZEJIOBI & ANOR (2017) LPELR-42285(CA)
In VANGUARD MEDIA LIMITED & ORS V. OTUNBA ADEBIYI O. OLAFISOYE (2011) 14 N.W.L.R. PAGES 237 – 238, (2011) LPELR-8938(CA), the Court stated:
“Plethora of authorities had it that the question whether the words, complained of are, in fact, defamatory of the plaintiff, is a matter for the jury and it is for the judge to decide on the evidence adduced in support of the complaint, whether they are capable of referring to the plaintiff as well as capable of conveying defamatory meaning in the minds of reasonable persons in the circumstances of the particular case. See the cases of Knupffer v London Express Newspaper Ltd. (1944) AC 116 and Nevill v Fine Art and General Insurance Co. (1897) Ac 68. In the absence of trial by jury in our country, the trial judge has the onus of discharging the two functions.
“For the construction of the words according to fair and natural meaning to be given them by reasonable persons of ordinary intelligence, the case of Giwa-Amu v Guardian Newspaper Ltd. supra is again in point. Also in the case of Dina v New Nigerian Newspapers (1986) 2 NWLR (Pt.22) 353 at 363, this court held thus and said:- “It is the law that where words complained of are defamatory in their natural meaning the plaintiff need prove nothing more than their publication. The onus will then lie on the defendant to prove the circumstances in which the words were used.”Per OGUNBIYI, J.C.A(P. 50, paras. D-F)
The words complained of here: “I wu rituialist. I richaala umunne gi nile. I gaghi erinwu m out isi rie umunne gi nile.” It is rendered in Igbo language. It is a foreign language bearing in mind that the language of the court is English language. It has been variously decided that where the words complained about are in a foreign language they must be reproduced verbatim in that language and then translated in the language of the court. It is fatal to the suit where this is not done. Thus in OLORUNWA v. AKINDUN (2016) LPELR-40866(CA) the court stated:
“I am of the firm view that where the practice and procedure of setting out the defamatory words in a foreign language in a suit as here has not been strictly followed (as in this case by pleading the slander in Yoruba language and its translation to English) in constituting a claim in slander as here, the claim is challengeable on grounds of not having disclosed a reasonable cause of action in slander and in that event the action is liable to be struck out albeit in limine. This more so, where the slander in a foreign language has not been translated to English language at all in the plaintiff’s pleadings. In other words there is no English translation of the defamatory words of course the action is fatally flawed.”Per AKINBAMI, J.C.A. (P. 34, Paras. C-F) –
In this case the plaintiff in his pleadings set out the words as spoken in foreign language. He translated same in English language. He and the witnesses also testified in that direction. The words in English mean: You are a ritualist. You have killed all your siblings. You cannot kill me the way you killed all your siblings.”
Ritualists are regarded as murderer, kidnappers and are linked to or connected to all sorts of evil. In Oyewole, Samuel, ‘Kidnapping for Rituals: Article of Faith and Insecurity in Nigeria’, The Journal of Pan African Studies (Online) it stated:
“There have been over 4,000 cases of kidnapping reported to the police without any traces of the victims in the last decade (NBS 2013). It is suspected that the majority of these victims were abducted for ritual rather than ransom or any political objectives. Kidnapping for ritual involves killing or severing the body part of abducted persons for the purpose of using it as an object of ritual sacrifice aim to acquire ritual-money, favour, fame, success, power and protection.”
Leo Igwe, International Humanist and Ethical Union (IHEU)’s representative for West and Southern Africa in ‘RITUAL KILLLING AND HUMAN SACRIFICE IN AFRICA’, AFRICAN COMMISSION ON HUMAN AND PEOPLE’S RIGHTS — 48th Session November 10-24 2010: Banjul, The Gambia stated:
“The practice of ritual killing and human sacrifice continues to take place in several African countries in contravention of the African Charter on Human and People’s Rights and other human rights instruments. In this 21st century, human beings are still being hunted down, mutilated, murdered or sacrificed for ritual purposes across the region. Several cases of kidnapping and disappearance of persons are traced to the vicious schemes and activities of ritualists. In most cases, those targeted for ritual sacrifice are vulnerable members of the population — the poor, women, children the aged and people with disabilities.
Ritualists hunt for and harvest human body parts to prepare charms and magical concoctions. In some cases desperate ritualists invade cemeteries and exhume dead bodies to extract body parts
Considering repulsive view of people towards ritual and ritualist, I have no doubt in my mind that for anybody to consciously and mischievously refer to any person as a ritualist is defamatory.
Now has the Plaintiff proved that these words were uttered by the Defendants and same was published by them? There is evidence before the court that the said words were published. It was given in evidence by some of those to whom it was published. In the present case the Defendants did not only call the Plaintiff a ritualist but went on to allege that he has killed all his siblings. This is imputation of crime. And it is actionable per se. In OKAFOR & ORS v. IBEGBU (2016) LPELR-40117(CA)
“A slander, when it is an imputation of crime is actionable perse. OLANIYI V ALERO (2008) ALL FWLR (PT 411) PAGE 983; EGBE V ADEFAFARASIN (1987) I SC.1 at 20.”Per AWOTOYE, J.C.A. (P. 31, Paras. D-E)
The onus is on the Plaintiff to proof publication. The burden of proof is fixed and it is on balance of probabilities unless the publication is admitted or undefended. Thus, in OLIVER O. AMUZIE ESQ V. ARCH. CHRIS O. ASONYE (2010) LPELR-4758(CA); (2011) 6 NWLR (Pt. 1242) 19 at 45 the court stated:
“However, I would not go so far as to say that where there is a direct and positive admission of the publication in the pleadings, the plaintiff is still required to prove the publication on a balance of probabilities. In such an event, the plaintiff is only required to adduce minimal proof or the publication.
The court went on to hold:
“The law requires the Plaintiff in an action for libel to prove the publication. The burden of proof is fixed on him at the end of pleadings and he must discharge that burden before it can shift to the Respondent.
The Plaintiff has done this hence shifting the burden to the Defendants. Unfortunately the Defendants opted to stay away.
It is my finding that given the environment and the circumstances in which the Defendants made and published the said words in reference to the Plaintiff, the interpretation and understanding of a man of ordinary understanding will be that they are defamatory of the Plaintiff.
It is proved that the Defendants published the words/statement; the statement conveyed a defamatory meaning to those to whom it was published; the statement was defamatory to the Plaintiff in the sense that it lowered him in the estimation of right thinking members of the society and exposed him to hatred, ridicule or contempt. See ASHEIK V. MEDIA TRUST NIGERIA LTD. (2010) 15 NWLR (PT. 1215) 114
On damages it has been stated in OKAFOR & ORS v. IBEGBU (supra) that what the Court will consider in awarding damages for slander includes (a) the standing of the plaintiff in the society (b) the impact of the words complained on the career of the plaintiff (c) the moral standing of the plaintiff (d) the impact of the words complained of on the marital status of the plaintiff (e) the unjustifiability of the attack on the plaintiffs reputation (f) the depreciation in the value of the currency due to inflation. See ALAWIYE V OGUNSANYA (2004) (PT 864) 486.”Per AWOTOYE, J.C.A. (Pp. 31-32, Paras. E-A) –
This action succeeds and it ordered as follows:
a. The sum of N200, 000.00 (Two Hundred Thousand Naira) jointly and severally against the Defendants in favour of the Plaintiff
b. An unreserved apology from the Defendants to the Plaintiff to be published to the Ogbor Umuegwu General Assembly at a general meeting of Aladimma Ogbor Umuegwu Mpam.
c. An injunction perpetually restraining the defendants, their agents, servants from further publishing or circulating or peddling the said slanderous statement or any other statement defamatory of or affecting the Plaintiff’s reputation.
I so hold.
I.M.NJAKA
JUDGE
3-10-17
Appearances:
Loveday E. Njoku Esq. for the Plaintiff
No appearance for the Defendants.