CASE SUMMARY OF:
Emmanuel Bekee & Ors v. Friday Ebom Bekee (2012) - CA
by NSA PaulPipAr
AREA OF LAW
1. Emmanuel Bekee;
2. Adolphus Bekee;
3. Kenneth Bekee
Friday Ebom Bekee
Court of Appeal
LEAD JUDGEMENT DELIVERED BY:
Uchechukwu Onyemenam, J.C.A.
* FOR THE APPELLANT
- ADU SYLVESTER;
* FOR THE RESPONDENT
- N. W. NWORGU;
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FACT (as relating to the issues)
This is an Appeal against the decision of Honourable Justice B. A. Georgewill of Rivers State High Court contained in the judgment delivered on the 25th October, 2010.
In that judgment, the Court dismissed the Appellants claim in its entirety for lack of merit. The Appellants by their Amended statement of claim dated 17th July, 2009 claimed against the Respondent as follows:
(a) N30,000,000.00 (Thirty Million Naira) only being general damages for defamation.
(b) Perpetual, injunction restraining defendant from further perpetrating any act of defamation against the claimants. (c) Any other sum as the Honourable court may deem fit to award in the circumstances.
Paragraph 6 of Appellants' amended statement of claim. The said paragraph reads: "Claimants aver that information got to them in the morning of 2nd January, 2007 that Defendant went to the Claimant's maternal house, among others and alleged that Claimants had canvassed the arrest of Chinedu Bekee the son of the Defendant, and another Mr. Jonathan Alex Ehoro on the ground that they were cultists and that they were responsible for the killings that took place in December, 2006 in Elelenwo Port Harcourt, the Defendant statement in respect of the aforementioned is hereafter stated as follows: Emmanuel Bekee and his brothers Adolphus Bekee and Kenneth Bekee reported some members of the community to the police and Rumukwurushi people particularly Chinedu and Joe Ehoro as cultists who were responsible for the killings that took place in Elelenwo in December, 2006, and that if anything happens to anybody in the community particularly my son Chinedu and Joe Ehoro, I will arrange for every member of their families to be wiped out and that noting will remain of the members of their family".
The learned trial judge after hearing evidence and addresses of the respective counsel in the matter in a well considered judgment dismissed the Appellants claim as lacking in merit.
Dissatisfied with the Judgment of the lower court, the Appellant by a Notice of Appeal filed on 26th October, 2010 containing 4 (four) grounds appealed to this Court.
1. Whether the words spoken by Respondent are slanderous.
2. Whether the slanderous words spoken must be altered in the presence of the persons slandered.
HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANTS BUT IN FAVOUR OF THE RESPONDENT.
i. From the above reproduced paragraph 6, the purport is clear. The Respondent complained that the Appellants reported some members of the community to the police, his son and nephew inclusive for cultism and killings in Elelenwo in December, 2006. He threatened to wipe out Appellants' family if anything happens to; particularly, his son and nephew. The learned trial Judge held that this said report allegedly made by the Appellants is a noble act worthy of commendation and as such the words conveying it cannot be capable of having a defamatory meaning. This is not outside the pleading in paragraph 6 nor the witnesses' evidence in its support. From the record before me, I do not see where and how the learned trial Judge in determining whether the alleged words were defamatory in meaning either departed from the pleadings or evidence on record or misapplied them. I therefore do not agree with the learned counsel for the Appellants that the learned trial Judge in his judgment, at pages 172 - 174 of the record while reaching the conclusion that the alleged words are not defamatory in meaning leaned on facts inapposite to the pleadings and evidence on record. From the foregoing, I hold that the learned trial Judge was right when he held that the alleged slanderous words as stated in paragraph 6 of the Appellants' amended statement of claim were not defamatory in meaning. Having so held the issue of proving defamation does not arise. The alleged slanderous words must be capable of having defamatory meaning before the exercise of proving defamation can be embarked upon.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANTS BUT AGAINST THE RESPONDENT.
i. To prove slander, a Plaintiff is not required to prove the truth of the slanderous words. The submission that he must be present when the slanderous words were spoken to make his evidence pass the hearsay test and admissible in evidence is not supported by the law. Accordingly, the reasoning of the learned trial Judge in support of his conclusion that a person defamed must be present when the slanderous words are uttered cannot therefore legally stand. I therefore do not agree with that.
ii. Once the Plaintiff in an action for slander is able to prove publication, identification and defamatory matter, where he was at the point of publication is of no moment. Accordingly, I hold that the learned trial Judge was wrong when he held that the person allegedly slandered must be present when the slanderous words are communicated to a third party.
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Bank: Zenith Bank.
Name: Branham Paul Chima.
Account No.: 2178756839.
An issue for determination which is based on incompetent ground of appeal goes to no issue. Such issue will be struck out as worthless. This is because; grounds of appeal are the legal pedestal for any attack on a Judgment. They give life to issues raised in the appeal for determination. - Onyemenam, JCA. Bekee v. Bekee (2012)
Let me also bring to remembrance the fact that, in a civil case; the court decides the case on the balance of probabilities or preponderance of evidence. By this the Court must weigh the evidence adduced by both sides on an adjudicatory justice weighing scale. The Court then watches to see which is heavier, not by the number of witnesses called by each party nor by the number of exhibits tendered by respective parties, but by the quality or probative value of the testimony of those witnesses and exhibits. - Onyemenam, JCA. Bekee v. Bekee (2012)
Defamation also called calumny, vilification, traducement, slander (for transitory statements) and libel (for written, broadcast or otherwise published words) is the communication of statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, or nation a negative or inferior image. As such, any disparaging statement made about another, which is communicated or published, may well be a defamatory statement capable of giving rise to an action in libel or slander. - Onyemenam, JCA. Bekee v. Bekee (2012)
The distinction between libel and slander lies in their forms and remedies. Generally speaking slander is when a defamatory statement has been made orally, without justification. It is transitory. Libelous statements are those defamatory words that are recorded with some degree of permanence for instance recording words on tape, statements made by email or on on-line bulletin boards. So while slander is spoken defamation; libel is written or visual or broadcast defamation. - Onyemenam, JCA. Bekee v. Bekee (2012)
Anyone who is sued for defamation can raise any of the following defenses: - That the alleged wrong doer was not the publisher of the statement; - That the statement did not refer to the alleged victim; - That the statement's meaning was not defamatory; - That the statement was true; - That the statement was fair comment on a matter of public interest. - That the statement was made in the heat of an argument. - Onyemenam, JCA. Bekee v. Bekee (2012)
The import of these cases which represent the law is that as regards the language of slander; the law requires the exact words in the exact language of the slander to be pleaded. This is for the reason that: - The cause of action is not founded on the Plaintiffs impression of the slander but on those words as uttered; - It may be known whether or not an innuendo is required in construing the words used or whether the statement is prima facie libelous without employing innuendo; - Where the words were uttered in a foreign, strange or may be technical language then the need to ensure a proper translation by a competent person or an expert for the use of the Court. - Onyemenam, JCA. Bekee v. Bekee (2012)
Narrowing this down to the instant appeal which arose from an action for defamation, it is the court that decides in the end whether the words complained of are defamatory. In so deciding, the trial Judge: (a) Considers the meaning, the words would convey to the ordinary person; (b) Considers the circumstances in which the words were published; and (c) Determines whether in such circumstances, a reasonable person would likely understand them in a defamatory sense. - Onyemenam, JCA. Bekee v. Bekee (2012)
In deciding whether the words complained of are defamatory, the trial court must bear in mind, the rule that information or complaint made to the police authorities cannot ground action for defamation. It is the duty of any citizen who knows or reasonably believes that a crime has been committed to assist the police with information. In the interest of the society therefore, any such information to the police or relevant authorities will be privileged. - Onyemenam, JCA. Bekee v. Bekee (2012)
Defamation is the general term used where it is not necessary to distinguish between "slander" and "libel". The fundamental distinction between both lies solely in the form in which the defamatory matter is published. Since slander is an arm of defamation, there can be no successful action for slander without the spoken words published to a third party. Accordingly, I hold that slander requires publication. - Onyemenam, JCA. Bekee v. Bekee (2012)
Publication means the act of making a defamatory statement known to any person or persons other than the Plaintiff himself. It is not required that there should be any publication in the popular sense of making a statement public. A private and confidential communication to a single individual is sufficient. Also it need not be published in the sense of being written or printed as actions as well as words may be defamatory. A communication to the person defamed himself is not sufficient publication on which to found civil proceedings; though it is otherwise in the case of criminal prosecution, because such a communication may provoke a breach of the peace. - Onyemenam, JCA. Bekee v. Bekee (2012)
In our judicial jurisprudence, imbedded in the distinction based on the form in which it is published, the known difference between libel and slander is that: (1) Libel is not merely an actionable tort, but also a criminal offence, whereas slander is a civil injury only. (2) Libel is in all cases actionable per se but slander is, save in special cases, actionable only on proof of actual damages. - Onyemenam, JCA. Bekee v. Bekee (2012)
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