Alhaji A.F. Alawiye V. Mrs E.A. Ogunsanya (2003)

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VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A. 

This is an appeal against the decision of the High Court Ogun State of Nigeria, sitting in Ijebu Ode, presided over by Hon. Justice J. Mabogunje. The judgment was delivered on 10th October, 1995.
In that court, the plaintiff now respondent, sued the defendant now appellant for damages for (1) slander, and (2) libel. To wit that on 6th August, 1993, the defendant at the Central Mosque ,Ijebu Ode, uttered the following words concerning the plaintiff; and thereby, defamed the plaintiff in these words in Yoruba, saying the words (supplied) and for which the English translation is “my brothers in Islam, you should not believe what Alhaji Osikoya told you as the truth, because he is telling a lie to cover up the principal of the school. Both of them are lovers, Alhaji Osikoya is allowing his lust to over ride his religious duty.”

That on the 13th August, 1993, in and around the Ijebu Ode Central Mosque, the defendant caused to be published concerning the plaintiff words which defamed the plaintiff in a handbill titled “Ikede” which may mean notice or information. In the said Ikede, the following words were written in Yoruba; which words are supplied, and interpreted in English language thus, ”This is to inform all brothers in Islam of the outcome of the meeting held after last Friday between myself and Alhaji Fatai Osikoya (Fisko) together with some Muslim brothers and committee on the issue of the shortcomings of the principal of Moslem Comprehensive High School. It is clear to Fatai Osikoya that all the allegations I made are true. It is clear to Fatai Osikoya to investigate all the allegations I made, but he failed to do so because we have learnt that the principal is his mistress. “For each defamation in slander and libel, the plaintiff claimed the sum of N250 million, the total is N500 million naira”.

In the suit, the plaintiff filed a further amended statement of claim and the defendant also filed a further amended statement of defence, upon which the suit was considered and determined by the learned trial court on 10th October, 1995. In the judgment of the court are contained the following in the last paragraph; “After considering the evidence before the court, the fact that the slander and the libel were published on different days, the present inflationary trend and the sinking value of the naira, I award N1,000,000.00 (One million naira) for the slander and N2,000,000.00 for the libel.” The defendant was dissatisfied with the judgment, and has appealed to this court.

The record shows that the defendant first filed a notice of appeal dated 13th October, 1995 of two grounds; and filed another dated 4th December, 1995, of seven grounds. The grounds in the notice of appeal of 13th October, 1995, are contained in the latter notice of 4th December, 1995. The appellant filed his brief of argument in this court on 18th February, 1998. In the brief the appellant submitted the following four issues for determination of the appeal. They are:
(a) Was the evidence of the witnesses of the respondent in respect of the publication of the alleged slander credible enough as to be believed in proof of the case? The issue is distilled from ground 2 of the appeal.
(b) Did the lower court considering the issue as to whether the appellant uttered the alleged slanderous statement properly evaluate and ascribe probative value to the evidence proffered by both parties. Distilled from grounds 1, 3 and 7.
(c) Did the respondent prove the publication by the appellant of the alleged libel contained in the exhibit A? distilled from grounds 4 and 5.
(d) Whether in awarding cumulative damages of three million naira, the lower court took into consideration and applied. The settled principles of law which ought to guide the court in making such award.”

The respondent also formulated three issues, which he submitted are more appropriate for determination of the appeal. They are;
“(a) Whether the findings of fact pursuant to evaluation of evidence in this suit by the trial court are perverse on unsupportable by other evidence on record as to warrant a reversal?
(b) Was the learned trial Judge wrong in holding that the appellant published the libelous leaflets?
(c) Whether having regard to the extent of the coverage of the defamatory publication the status of the plaintiff; the attitude of the defendant, and grossly reduced value of the naira, the award of the sum of N3 million naira is not too low?”

In the cross appeal filed by the respondent. The respondent/cross-appellant adopted its issues (c) or 3 above, as the sole issue of the cross-appeal, to wit, whether having regard to the extent of coverage of the defamatory publication, the status of the plaintiff, the attitude of the defendant and the grossly reduced value of the naira, the award of the slim of N3 million is not too low.” Upon this issue, the cross appellant urged the court to exercise its jurisdiction under section 16 of the Court of Appeal Act; and review upwardly the order of damages awarded by the learned trial Judge.

The cross appellant urged the court to dismiss the appeal, and allow the cross appeal, because the learned trial court had not properly allowed the following considerations to affect her award; viz: the status of the plaintiff, as highly reputed school principal, a moral crusader, matron of all Catholic youths in Ijebu Ode Diocese, a married woman of substance, with two children one of who is a lawyer and the other a student of architecture, a doctorate degree holder, a role model to students and teacher;
(2) The fact that the publication took place on different days for the slander and libel on the one hand and libel: The geographical spread of the defamation in Ijebu Ode, Lagos, Benin, Ibadan, Lokoja, Ruhei Homerton and London. The absence of any retraction and apology and the lack of remorse by the defendant, before and during the trial. The continuing sinking value of the naira, and the acute inflation of the country.”

The appellant filed an appellant’s reply brief. Besides reiterating that the award made by the trial court in favour of the respondent was excessive as it was based on the principles of aggravated damages, which the respondent did not ask for, the appellant respondent in the appellant’s reply brief to the counter-claim contained in the respondent’s brief. In this connection the appellant adopted the arguments contained in his issue (d) or 4 and cited recent authorities in Basorun v. Ogunlewe (2000) 1 NWLR (Pt.640) 221 in which Aderemi, JCA, and Nzeako, JCA, both separately expressed the view, that the award of damages or quantum of it is not the primary factor in an action for defamation, but the vindication of the good character of the plaintiff. The appellant in response to the counter claim submitted that the award of cumulative sum of N3 million made by the court below is excessive and urged the court to reduce it, if the substance of the submission on appeal fails. He submits that the appeal should be allowed.

I will in this appeal consider together the set of issues formulated by both the appellant and the respondent where the itemized issue has the same theme; together with the issue formulated in the counter claim. The sole issue formulated in the counter-claim is on issue (d) or 4 of the appellant and on issue 3 or C of the respondent. There is a vital issue that, I must first direct attention to in this appeal, it is the legal requirement in an action in defamation, which says that the actual words in which the alleged defamatory words are uttered or published should be stated. The provision is contained in the Law of Defamation by Gatley in Gatley on Libel and Slander; see 7th edition, paragraph 987, it reads; “If the libel or slander is in a foreign language it must be set out in the same language and followed by a literal translation. It is not enough to set out the translation without stating the original word or vice versa.”

The rule was followed by Jibowu, C. J., of the Old Western Region High Court in Bakare v. Rasaki Ishola (1959) WRNLR 106 and by Ajuyah, J., in the unreported case in Bendel State in suit No/3A/811, delivered on January 11th, 1982, Ogun Imohimi v. Agbonlare Alukpe. In both cases, which were reported the language of the area was regarded as a foreign language, and treated as such and the English translation of the local language was required. The English language being the language of the court, the requirement has its technical meaning because it aids the proof of publication, and communication to the defendant of the alleged libelous material.

In the instant appeal, the words alleged to be libelous were spoken and allegedly written in the Yoruba language, I will now reproduce the words as allegedly stated. The plaintiffs now respondent claimed from the defendant now the appellant in the court below for saying of and concerning the respondent on 6th August, 1993 at the Ijebu Ode Central Mosque, the following words “Eyin Jamma Musulumi e ko gbodo gba ohun ti Alhaji Osikoya wi gbo gegebi otito nitori oun pa iro po lati fibo oga Ile Iwe naa. Awon mejeji n yan ara won ni ale. Alhaji Osikoya si nje ki ifekufe ti oni si ale ro bo ojuse re ninu esin? Which words when translated into the English language means. “My brothers in Islam, you should not believe what Alhaji Osikoya told you as the truth, because he is telling a lie to cover up the principal of the school. Both of them are lovers. Alhaji Osikoya is allowing his lust to override his religious duty.”

In the alleged slanderous words allegedly published against the plaintiff, she filed a claim for N250 million naira. In the claim for libel, the plaintiff alleged that the libelous words were published in a leaflet distributed inside and outside the Ijebu Ode Central Mosque, and to other diverse people in Nigeria and overseas; following words which are contained in leaflet titled “Ikede” on 13th August, 1993, in these words. “Eyi ni latifi to gbogbo Jamma Musulumi leti lori ipade to waye lehin Jimo ti o koja larine mi ati Alhaji Fatai Osikoya (Fisko) loju pe otito ni mo so. Gegebi oti ye o leto fun Fatai Osikoya (Fisko) lati se Iwadi lori oro timo so, sugbon okuna lat wadi otito nitori a gbo pe onfi Oga lie Iwe na se Aya.” Which in English translation mean “This is to inform all brothers in Islam of the outcome of the meeting held after last Friday between myself and Alhaji Fatai Osikoya Fisko together with some Muslim brothers and committee on the issue of the shortcoming of the principal of Moslem Comprehensive High School. It is clear to Fatai Osikoya to investigate all the allegations I made, but he failed to do so because we have learnt that the principal is his mistress.”

In the court below, the plaintiff tendered the evidence of eight witnesses to prove that the said words were uttered on 6/8/93 in the case of slander and that in the case of the claim for libel the defendant wrote the handbill a leaflet and caused the same to be distributed and published in the Ijebu Ode Central Mosque on the 13th August, 1993. The appellant in his issue (a) or 1 above has submitted that he did not utter the words alleged; on the 6th August, 1993, or at any time after; and that the five witnesses on whose evidence he relies to establish his defence suffice to prove his innocence of the accusation. The appellant submitted in his brief on the said issue that the witnesses for the plaintiffs were not sufficiently credible to establish the alleged uttering of the said words. In issue 6, on 2 and 1 the appellant submitted that the learned trial court failed to evaluate the evidence tendered in the court below, and did not ascribe to the said evidence the necessary probative value due to the evidence tendered by both parties.