Chief T. F. Oruwari V. Mrs. Ine Osler (2012)

LAWGLOBAL HUB Lead Judgment Report

M. CHUKWUMA-ENEH, J.S.C.

This appeal is against the unanimous decision or the Court of Appeal Port-Harcourt Division delivered on 14/4/2005 affirming the trial court’s decision, holding the appellant (defendant) liable in damages in favour of the respondent (plaintiff) for slanderous publications uttered and concerning of the respondent (plaintiff) on 7/5/1994; also an order of restrictive injunction which has in addition been slammed on the appellant to prevent a repetition of the slander against the respondent.

The correctness of the translation to English of the alleged defamatory words spoken in a foreign language (i.e. in Kalabari language) as well as its publication to PW5 as pleaded in paragraph 37 of the Amended Statement of claim of the plaintiff/respondent in this matter is the gravamen of this appeal. The plaintiff/respondent has pleaded the said defamatory words thus:

“On or about the 7th day of May 1994, the respondent herein falsely and maliciously spoke and published the following in the presence of clement Ibialabo and others.

‘Saki mengba I pa be be I biari idigi, inegogo Oruwari I Igbigi fit e dire ke nna piri te iba be te doki eri krabio a pa kuro te megi ma buroari’. Which words literally mean in English Language: Every time you always say you are sick, look at me since inegogo Oruwari has been given money to people to kill me with medicine, I am still strong and I (sic) working about.”

The defendant/appellant herein in paragraph 17 of the Amended statement of Defence has reacted to the allegation as follows:

“Defendant denies paragraph 37 of the Statement of claim. It is one of the plaintiff’s characteristic and fraudulent lies. Defendant could not have said any word in the presence of clement Ibialabo because he did not meet him on the 7th May, 1994 as he defendant with his wife were undergoing their spiritual confinement at their church between 30th April, 1994 and 8th May 1994 and thus confined to the church premises. The defendant will show at the trial that Mr. Clement Ibialabo is hired to tell that story. Defendant shall show at the trial that most if not all of the plaintiffs witnesses were bought over because of one relationship or the other.”

There 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. However, the plaintiff has not called evidence specifically of an independent sworn interpreter knowledgeable in Kalabari and English languages to translate the foreign language to English language. It has remained the crucial issue in this matter. In other words, what the defendant/appellant is saying is that the plaintiff has not proved the correctness of the English translation of the defamatory words from the foreign language as uttered in Kalabari language as a first step to proving her claim. Clearly, the defendant/appellant has so maintained in the two lower courts. His stance in this appeal is no different and is predicated on the averments in paragraph 17 of the Amended Statement of Defence which have specifically denied paragraph 37 of the Amended Statement of Claim. He has thus put the correctness of the defamatory words as spoken in Kalabari language (a foreign language) and its English translation thereof beyond per adventure in issue. And that fact having been put in issue as pleaded in paragraph 17 of the Amended Statement of Defence, the onus of proving the correctness of the English translation thereof rests squarely on the plaintiff/respondent. In that regard it is trite that under the Rules of pleadings:- issue is joined on that question between the parties. The plaintiff’s case stands to collapse if no evidence is called on the issue. In the event of the plaintiff/respondent failing to discharge the said onus it also follows that the question of publication of the slanderous words (as in this case in Kalabari language) as uttered in a foreign language to a third party (in this case to PW5) otherwise the gist of an action in slander and a necessary factor in establishing the publication of the defamatory words against a defendant as in this case, becomes a mirage.In this regard it is trite that a trial court has to satisfy defamatory words in a foreign language by an independent sworn interpreter before acting on the same.The instant trial court’s findings on this important issue is at p.262 lines 28-32 and at page 263 lines 1-6 of the record thus:

“The defendant spoke in Kalabari language to the lady he was talking to. Clement Ibialabo is a Kalabari man, and not literate. He testified in Kalabari language, through a sworn Kalabari language interpreter, brought for that purpose. It is obvious therefore that the understood the discussion between Defendant and the lady he was discussing with that day.” (underlying supplied).

From the above abstract the trial court has found that the instant defamatory words in a foreign language as per its English translation has been proved by the sworn interpreter provided in the proceedings at the trial to literally interpret PW5’s ordinary testimony i.e. his viva voce evidence as rendered in Kalabari language into English language. The defendant/appellant naturally being dissatisfied with the trial court’s decision has appealed the decision to the Court of Appeal substantially on the issue of the plaintiff not having proved the correctness of the English translation, and upon which rests the publication to PW5 of the alleged defamatory words uttered in a foreign language (in Kalabari language). And that his failure in this regard has arisen from not calling at the trial for that purpose an independent sworn interpreter to translate the foreign language (i.e. Kalabari language) to English language. The lower court at page 387 of record in its findings on issue has stated as follows:

“Again, Clement Ibialabo to whom it was said that the alleged slanderous words were made was called as witness PW.5. At page 95 of the records, the said Clement Ibialabo was recorded as having been sworn on Bible and gave his evidence in Kalabari with the aid of an interpreter. This suggests that Clement Ibialabo was an illiterate in English language. So, an interpreter was provided for him. Again, let it be said that the law demands that Records of proceedings must ex-facie show that an interpreter was made available in court where an illiterate in English Language is testifying. See: Panalpina v. Woriboko (1975) 2 SC. 29 and (2) Animashaun vs. U.C.H. (Ibadan) (1996) 10 NWLR (Pt.476) 65.”

Again, being dissatisfied with the lower court’s decision the appellant has appealed the decision to this court on a sole ground of appeal. In the appellant’s brief of argument filed in this matter and adopted at the oral hearing of the appeal a sole issue for determination has been distilled to wit:

“Whether the translation of a foreign (kalabari) language to court’s (English) language by a sworn interpreter is fundamental, particularly in the circumstance.”

The respondent in her brief of argument filed and also adopted before the court at the oral hearing of this matter has also raised a sole issue for determination as follows: