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OLUMUYIWA JIBOWU, AG. F.C.J. (Presided)
M.C. NAGEON DE LESTANG, F.J.
MYLES JOHN ABBOTT, AG. F.J. (Read the Judgment of the Court)
APPEAL – Damages – Assessment of by Appellate Court when not done by trial court.
DAMAGES – Assessment of by Appellate Court – When done.
TORT – Defamation – Imputation of crime – Whether necessary to specify crime.
TORT – Defamation – Innuendo – Proof thereof.
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Eleanya Kalu, Eleanya Ugochi Vine]
Mr. E. B. Craig -for Appellant.
Mr. A. Ogunsanya -for Respondents.
ABBOTT, AG. F.J. (Delivering the Judgment of the Court):
This is an appeal against the judgment of Smith, J., dismissing the plaintiff-appellant’s claim for £800 damages for slander.
The words complained of were uttered by a party of men, of whom the present defendants-respondents were five, as they passed by the appellant’s house at Shaki.
The appellant and the respondents belong to different political parties and it is not now contested that the respondents, with others, passed the appellant’s house on their way to and from political meetings and uttered the words complained of, which, translated into English, were “Alhaji Tafa Giwa” (the appellant) “you threw your child into a well on account of your greed for money.”
The Statement of Claim, in paragraph 3, alleges an innuendo, to wit, that by these words the respondents imputed that the appellant had been guilty of the criminal offence of attempted murder. None of the witnesses called for the appellant said he understood the words in exactly that sense, but one witness, Tijani Adesope, went very near that when he said (and this was under cross-examination) “I believe that if defendants had not seen plaintiff throw his child in the well, they would not be saying those words.”
In the last three paragraphs of his judgment the teamed trial Judge says this:
“There has been no evidence led as to special damage suffered by plaintiff and it is clear that plaintiff is relying on the interpretation placed on these words in the particulars of claim alleging they impute an offence of attempted murder, which would bring the action within the category of slander actionable per se.
“The words “You threw your child into a well on account of your greed for money” do not in my view amount to a definite charge of a crime. It is conceivable that they may in certain circumstances be considered in the sense in which plaintiff alleges in his innuendo. It is however for plaintiff to show in evidence that those circumstances existed and that the persons in whose hearing the words were uttered understood them to mean what plaintiff alleges.
“All plaintiff has done is to prove that the words were uttered in the hearing of 2nd 4th and 6th witnesses for the plaintiff. He has in my view failed to show that they impute a criminal offence and in consequence cannot succeed in this action.”
I think the learned trial Judge erred in his conclusions. In the first place, a plaintiff in an action for defamation, even if he pleads an innuendo, need not prove it or rely upon it if it can be shown that the words complained of, in their natural and ordinary meaning, are defamatory. In this instance, as the learned trial Judge rightly points out, the words must, to be actionable per se, impute a criminal offence.
Secondly, if the words, in their natural and ordinary meaning, impute a criminal offence, the offence so imputed need not be that specified in the innuendo. In fact, no particular offence need be specified – words involving a general charge of criminality will suffice, provided they impute some offence for which the plaintiff can be made to suffer corporally by way of punishment. That was decided nearly 400 years ago, in the reign of Queen Elizabeth I, in Donne’s Case.
It is abundantly clear that to allege of a man that he threw his child into a well imputes to him, at the very least, the crime of cruelty to a child. That imputation proceeds from the natural and ordinary meaning of the words. That being so, the innuendo and the lack or paucity of evidence in support of it can be disregarded.
It is also quite clear that the slander was published. There is plenty of evidence of that. In these circumstances, I am of opinion that the appellant proved his case and that the learned trial judge erred in dismissing his claim.
It is within the power of this Court to assess damages and to do so will avoid the necessity for remitting the case to the trial judge (who is no longer in the Western Region but in the Northern Region) for him to assess the damages.
I would allow this appeal, set aside the judgment of the Court below, and direct that judgment be entered for the appellant for £100 damages. The appellant is also entitled to his costs in the Court below, which I would fix at £21 plus £21.3.0 disbursements, and to the costs of this appeal fixed at £38.0.0. This judgment is entered against the respondents jointly and severally.
JIBOWU, AG. F.C.J.: I concur.
DE LESTANG, F.J.: