3PLR – JIMOH SOWOLE V. RAIMI EREWUNMI

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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JIMOH SOWOLE

V.

RAIMI EREWUNMI

HIGH COURT OF LAGOS

16TH OCTOBER, 1961

LD/385/61

3PLR/1961/10  (HC-L)

OTHER CITATIONS

BEFORE:

DICKSON, J.

MAIN ISSUES

TORT AND PERSONAL INJURY – TORT: Libel and Slander—Slander in foreign language—Need to plead slander in the original language and in its translated version

PRACTICE AND PROCEDURE: COURT – Supreme Court (Civil Procedure) Rules O. XXXII r. 19—Application to strike out Statement of Claim alleging slander in foreign language—Attitude of court thereto

PRACTICE AND PROCEDURE: COURT – When courts will order leave to amend in lieu of an application to strike out the pleading

REPRESENTATION:

Ajayi for the Plaintiff

Abudu for the Defendant

DICKSON, J.:

This is an application by the defendant made under Order 32, Rule 19, for an order that the statement of claim be struck out as it discloses no cause of action, in that the statement of claim, although setting out the slander in the foreign language does not go further and set out the literal translation.

Mr. Ajayi for the defendant submits that, if that is not done, the statement of claim discloses no cause of action. In support, he cites Gatley on Libel and Slander, (4th Edition), page 463, which 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 a translation without setting out the original or vice versa.

Mr. Abudu for the plaintiff as against the submission of the defendant, cites from paragraph 1245 of the 11th Edition of Clerk and Lindsell on Torts, in support of his submission that it is not necessary to set out in the statement of claim the literal translation of the words used. Paragraph 1245 reads:

Hitherto the endeavour has been to define what is actionable language on the assumption that the meaning conveyed by that language is clear and undoubted. This, however, is by no means always the case, and where the words do not speak for themselves, the plaintiff must be prepared to put and prove the necessary gloss or innuendo upon them. They may be wholly or in part foreign, technical or slang, and, if so, they must be properly translated by suitable expert evidence into plain English.

If Mr. Abudu’s contention is right, there is clearly a conflict between the learned authors of Clerk and Lindsell on the one hand and Gatley on the other. In my view, there is no conflict whatsoever. It is to be observed that the text quoted from Clerk and Lindsell comes under the heading “Construction of Language Used’. The authors of Clerk and Lindsell were there dealing with evidence and not with practice. It is to be noticed that the passage cited above from Gatley falls within the chapter “Practice in a Civil Action” and under the heading “Statement of Claim.”

It is my judgment that it is an essential requirement that where a libel or slander complained of was published in a foreign language, the pleading should set out a literal translation of the defamatory words in English. I think I am fortified in my view from the precedent set out in Bullen and Leake, on Pleadings, (11th Edition), at page 510. The footnote reads:

If the libel is in a foreign language, it should be set out in the original and should be translated with allegations of its actionable meaning….

The learned authors went on to say that the plaintiff, or a competent interpreter, must prove the meaning of the words in English. There it is patent that what is being said is that the statement of claim must contain a literal translation of the libel or slander in English and, at the trial, the plaintiff or an interpreter must prove the meaning of the words in English.

Mr. Ajayi’s contention is supported by Zenobio v. Axtell, (1795), 6 Term Rep. 162; and Jenkins v. Phillips, (1841), 9 C. and P 766.

I am not inclined, however, to strike out the pleading, but to give leave to amend as is provided for in Order 32. That course was adopted in Jenkins v. Phillips (supra), during the progress of the trial.

Justice will be done if leave is given for the statement of claim to be amended so as to comply with the practice, and I order accordingly.

The plaintiff will pay the defendant costs assessed at six guineas.

Amendment of Statement of Claim ordered.