JIMOH SOWOLE (PLAINTIFF)
RAIMI EREWUNMI (DEFENDANT)
(1961) All N.L.R. 741
Division: High Court of Lagos
Date of Judgment: 16th October, 1961
Case Number: Suit No. LD/385/61
Before: Dickson, J.
Motion to strike out Statement of Claim.
The plaintiff brought an action against the defendant claiming damages for slander. The words purported to be slanderous were set out in the Statement of Claim in a foreign language; their literal translation was not set out in English The defendant brought this application asking for an Order that the Statement of Claim be struck out as it disclosed no cause of action; in that although it set out the slander in a foreign language, it did not contain a literal translation thereof. Counsel urged, on behalf of the plaintiff, that the requirement was not that a translation into English had to be pleaded, but that expert evidence as to its translation into English had to be adduced at the trial of the action.
(1) Where a plaintiff in his Statement of Claim, alleges libel or slander in a foreign language, the libel or slander must be set out in that language and followed by a literal translation.
(2) Where an application is brought to strike out a Statement of Claim which alleges libel or slander in a foreign language without setting out in English the literal translation of the libel or slander. The court may, in its discretion and of its own motion, give the plaintiff leave to amend the Statement of Claim to include the translation of the libel or slander.
Amendment of Statement of Claim ordered.
Cases referred to:-
Zenobio v. Axtell, (1795) 6 Term Rep. 162; 101 E.R. 489.
Jenkins v. Phillips, (1841) 9 C. and P. 766; 5 Jur. 252.
Rule referred to:-
Supreme Court (Civil Procedure) Rules, Order XXXII, rule 19.
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), at 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 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.