Kayami Ebak Irom Vs Irek Okimba (1998)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, J.S.C.

This is a matter of defamation heard by the High Court of Cross River State sitting at Obubra Judicial Division. The appellant now before us was the plaintiff at the trial court. The appellant and the defendant are natives of Apiapum. According to his statement of claim and his evidence in support, the plaintiff (hereinafter referred to as the “appellant”), sent his caretaker and sisters to go and harvest his cassava on his farm so as to make gari out of it. They complied and deposited the cassava tubers at his house. Later the Chief of their village, Chief Awassam sent for the appellant. On getting to the chief’s house, where a crowd had gathered including the defendant/respondent, and to the hearing of all there. Chief Awassam informed the appellant that the respondent had lodged a complaint against him that he (appellant) had stolen the cassava belonging to the wife of the respondent. The appellant there and then denied the allegation maintaining that he harvested his own cassava on his farm and that he never stole anybody’s cassava. The respondent in the presence of the same crowd repeated the allegation. From the chief’s house aforesaid the respondent went to report to the police that the appellant stole his wife’s cassava; leading to his prosecution in the magistrate’s court, Obubra. He was discharged and acquitted after the trial; his farm caretaker who was tried along with him was also discharged and acquitted. As a result of the allegation, the appellant who was in the run for headship of a ruling house of Obamkpe in Okum was bypassed. He therefore sued for this defamation and claimed N50,000.00 as damages.

In his statement of defence the respondent admitted making the allegation that the appellant stole his wife’s cassava by sending his caretaker and sisters to harvest the same because “he had no right to harvest the cassava as he did.” While admitting that he repeated the allegation of the appellant’s stealing in the chief’s house, he denied that the house was full of people but never mentioned how many people were there. Certainly the respondent never denied making the allegation, rather he repeated it in his statement of defendant and his evidence in Court. The trial Judge found for the appellant and awarded him damages.

The respondent lodged an appeal to the Court of Appeal. Based on his grounds of appeal he formulated the following issues for determination:

“(i) Whether the communication to the Clan Head and the police was privileged and if so whether that plea was not fully and sufficiently raised in the pleadings by the Defendant’s assertion in paragraph 15(e) that his wife and himself were by law entitled to report the matter to the Chief and the police for investigation.

(ii) Whether the Defendant’s conduct in the circumstances was reasonable and bona-fide or whether he behaved unreasonably and was actuated by malice.”

The parties fought the appeal on these issues. However, in course of the judgment the Court of Appeal abandoned all these issues and suo motu raised a new issue which for clarity I set out from the judgment of that court as follows:

“I think this appeal turns on whether on the facts of the case the defendant uttered words capable of being defamatory of the plaintiff. If he did not, or if no such words are shown, then the consideration of the other matters is irrelevant for the determination of this appeal.

It is settled law that in libel and slander it is essential to know the very words or as nearly as possible on which a plaintiff founds his claim. He must in his pleading set out the words with reasonable certainty: Sec Collins v. Jones (1955) 1 QB 564. At page 57I Lord Denning LJ said:

“In a libel action it is essential to know the very words on which the plaintiff found his claim. As Lord Coleridge CJ said in Harris v. Warre:”In libel and slander everything may turn on the form of words, and in olden days plaintiffs

constantly failed from small and even unimportant variance between the words of the libel or slander set out in the declaration and the proof of them……………… In libel and slander the very words complained of are the facts on which the action is grounded. It is not the fact of the defendant having used defamatory expressions alleged, which is the fact on which the case depends”‘.

I have carefully perused the plaintiff’s statement of claim and in none of the paragraphs did he set out the very words complained of on which he grounded his action. The closest he came to doing so was paragraph 7 which states:

“7. As soon as the plaintiff arrived at the Ohorodo’s Palace the said Chief Awassam informed him that the Defendant and his wife complained that he (the plaintiff) stole the defendant’s wife cassava.”

It is absolutely vital that the plaintiff should have set out with a degree of certainty the very words the defendant used. He cannot do this by substituting them with his own interpretation of what was said. It is the function of the Judge, upon the words used, to rule whether they are capable of being defamatory as a matter of law. Thereafter, on the evidence, he construes the words and circumstances as a whole whether they are defamatory of the plaintiff; see J.I. Okolo v. Mid-West New Paper Corporation & Ors. (1977) I SC 33. By stating that the defendant said he stole without setting out the very words complained of, the plaintiff was in effect drawing a conclusion which the court ought to draw after hearing all the evidence.”