EGBE V. ADEFARASIN

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EGBE V. ADEFARASIN

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EGBE V. ADEFARASIN

FRED EGBE

APPELLANT

V

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HON. JUSTICE J.A. ADEFARASIN

RESPONDENT

SUIT NO. SC 71/1985

SUPREME COURT

ANIAGOLU,

KAZEEM,

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KARIBI-WHYTE,

KAWU,

OPUTA,

9th January, 1987

OF NIGERIA

J.S.C.

J.S.C.

J.S.C.

J.S.C.

J.S.C.

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Practice and Procedure - Pleading - Estoppel to be specifically pleaded - Pleading

inconsistent defences.

Legislation - Limitation of action section 10 Limitation Law of Lagos State -

Action for slander barred after 3 years in Lagos State.

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Torts - Slander - Alleged words not actionable because of falling outside category

of slander actionable per se - When time begins to run - Not until damages

are suffered.

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ISSUES:

1.

Whether an action for slander brought after three years from the date of the

slander is statute barred in Lagos State.

2.

When does time begin to run in an action for slander

per se

with regard to a

statute of limitation?

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3. Whether there is a distinction between "cause of action" and "right of action"

with regard to limitation of actions.

4.

Whether a letter written by a defendant, denying an alleged slander can be used

by a plaintiff who alleges that the denial is false and amounts to misconduct, to

estop the defendant from relying on the defence of limitation or defence of

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denial of the alleged slander.

5.

Whether a defendant is allowed to plead alternative defences even when such

defences are inconsistent with one another.

6.

What is the meaning in law, of the word 'defamatory'?

7.

What is the duty of a plaintiff in an action for slander who alleged that the words

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complained of contain an imputation of a criminal offence?

FACTS:

The appellant, a legal practitioner, sued the defendant by a writ dated 22/10/81,

the then Chief Judge of Lagos State, claiming N500,000 being general and spe-

cial damages suffered as a result of the slander of the plaintiff by the defendant

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on 23rd March, 1978. The appellant alleged that because the defendant believed

that he (the appellant) had been instrumental in preventing him from making sub-

stantial benefit from the renting of his house, he (the defendant) had given con-

sent, as the Chief Judge, for the bringing of a charge of stealing the sum of

N450,000 against him and one other. He further alleged that while he was in deten-

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NIGERIAN SUPREME COURT CASES

[1987] 1 N.S.C.C.

tion awaiting trial he was visited by one A who told him that the respondent had in

his presence stated that he (the appellant) had dealt irregularly with 4 million naira

property of other persons, and that one A.A. was present when the respondent

spoke these words.

The appellant on 17th November, 1980 wrote the respondent intimating him of

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what he is alleged to have said. The respondent replied, also by letter, denying

that he ever uttered the words complained of, either in the presence of the named

A and A.A. or before any other person.

In his pleadings, the plaintiff alleged that by reason of the publication of the

said words he was gravely injured in his character

...........

and was forced to with-

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draw from a joint venture with A.A. valued at N300,000.

The defendant in his statement of defence, pleaded that the action having been

brought 3 years after the alleged slander was statute-barred by virtue of section

10 of the Limitation Law, Cap. 70 Laws of Lagos State, 1973; that in fact there was

no slander of the appellant by the defendant; and, that the words alleged spoken

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by the defendant caused the plaintiff no damage.

The High Court dismissed the claim not only on the ground that it was statute-

barred but also on the ground that it was totally without merit. The evidence given

by A.A. was that the alleged defamatory words had not affected his relationship

with the appellant and that the appellant had voluntarily left the company. He was

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of the view that the appellant had failed to establish the slander pleaded by him.

On appeal to the Court of Appeal, that Court unanimously upheld the judgment

of the trial court and dismissed the appeal.

The appellant made final appeal to the Supreme Court on four grounds, name-

ly: (i) that the Court of Appeal erred in law in rejecting the appellant's contention

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that a finding by the learned trial judge that the appellant's action was statute- barred

implied that there was a cause of action and that the cause of action was one for

slander which was actionable

per se;

(ii) that the Court of Appeal erred in law in

failing to apply the principle of estoppel in that having derived in his letter that he

uttered the words complained of to A and/or A.A. which denial was a lie and a

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misconduct, he was estopped by his misconduct from relying on the defence of

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mitation; (iii) that the court erred in law and in fact in holding that there was no

evidence disproving the contents of the said letter of denial or establishing that the

document was false; and (iv) that the Court of Appeal erred in law and in fact in

holding that the words proven to have been spoken by the defendant concerning 3!

the appellant were not defamatory of the appellant. In his brief and in a further at-

tack on the defence of limitation, appellant argued that the damage resulting from

the slander had not occurred till he was forced out of the Company and that there-

fore he was not out of time.

The appellant appeared for himself.

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HELD:

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An action for slander is, by virtue of section 10 of Limitation Law, Cap. 70, Laws

of Lagos State statute-barred, if it is brought after the expiration of three years

from the date on which the cause of action accrued. Where such limitation is

pleaded as a defence, it should be dealt with first as it would be a fruitless

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exercise to decide the merits of a case which is statute-barred.

2. (a) Slander actionable per

se

does not require damage to be proved in order

to ground the action. It is actionable without proof of special damage. This

being the case, if as it was alleged, the defendant uttered the slanderous

words on 23rd March, 1978, then time started to run from that date, three

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years from which would be (not counting the day 23/3/78) 24th March, 1981.

The appellant having taken out his writ on 6th October, 1981 was six months

out of time.