Dschang varsity lecturer charged with defamation

The North West Court of Appeal in Bamenda has slammed Nche George Ndifor Angwafor, lecturer of Dschang University, with a heavy fine for defaming a certain Nkwenti Ignatius Ndefru, former Cultural Attaché in the Cameroon’s Embassy in the USA.

Ndifor is being charged by the court to pay the sum of 2MFCFA as general damages to Nkwenti and 480.000FCFA to the state treasury or serve an imprisonment term of six months should he not make the payments.

The sentence which was issued on September 30, 2014 in an audience that was presided over by the Vice President of the North West Court of Appeal, Joseph Awa Nkengla in SUIT NO.CANWR/MS/40C/2013 is a reversal of a decision of the Bamenda Magistrate Court on March 23, 2013.

The Appeal’s court ruling came after Nkwenti appealed a previous decision of a lower court which dismissed his accusations that the respondent, Ndifor had defamed him in a series of letters he wrote to him about some landed property in the Nghomgham neighbourhood of Bamenda.

In the letters, Ndifor claimed Nkwenti had sold-off land which he acquired from his father who passed away in 1986. According to Ndifor, the land belongs to him.

Nkwenti, who in the matter was held as second appellant had in turn replied Ndifor, the respondent while copying some individuals. But Ndifor had continued to address several other letters to Nkwenti after the latter’s reply to his first letter.

It was on the merits of Ndifor’s second letter that the appellant filed a lawsuit against the respondent in which he argued that the respondent in his second letter which was upheld by the court in evidence as Exhibit “A” had made allegations which amounted to defamation and injurious to his reputation. The appellant therefore charged him under section 305(&), 305(5) and 302(2) (b) of the penal code and section 2(a) of Law no. 80/22 of 14/07/80.

At first instance, the court after going through the full trial found the respondent not guilty on all the six counts that were levelled against him. The Bamenda Magistrate Court also dismissed a civil claim of 10MFCFA against the respondent.

Reconstituting the facts on appeal, the appellant court stated that the lower court by dismissing both the criminal and civil claims on the respondent had violated section 395(1) (a) of the Criminal Procedure Code.

The argument of the Appeal Court in setting aside the judgment of the Magistrate Court was based on the probability that the facts of a matter may not constitute an offence but may smack of a civil wrong.

On Ground 4 of the ruling, the court upheld an argument by the counsel for the first appellant denoted here by “The people of Cameroon” that the Magistrate Court in its judgment failed to tax and set out the costs of the proceedings and so violated section 401(1) of the Criminal Procedure Code which the court refers to as a mandatory provision of the law. That section states that “the costs shall be taxed and set out in the judgment.”

The judgment indicates that the purpose of the provision is to ensure that the party that loses the case pays the cost of the proceedings. In such a case, the provision would be binding even if it was the legal department that initiated the proceedings and lost it, the cost shall be borne by the public treasury.

On the same ground, the court found fault in the ruling of the lower court with respect to section 389(2) (g) of the Criminal Procedure Code which states that “the judgement comprising the heading shall include full names of other parties and their counsel, if any.”

The judgment delivered by the Magistrate Court, the ruling stated did not contain the name of the 2nd appellant (Nkwenti Ignatius) as a party. “It was therefore in violation of section 389(2) (g).

In upholding the grounds of appeal and annulling the ruling of the Magistrate Court, the appeal court invoked section 389(7) of the Criminal Procedure Code which states that “the non compliance of the formalities prescribed in this section shall render the judgment null and void.”

Prosecuting facts The sentence slammed on Nche George Ndifor Angwafor stemmed from words judged as defamatory by the Court of Appeal. Some of the defamatory words which were tendered and admitted in evidence as exhibit “A” read thus: “You have sold all his land located below Foundation Radio without even knowing where he was buried. Tradition is a slow process and you and your children will certainly pay the price … If not of that decision, you would have learnt the hard way what it means selling land that does not belong to you… you and Che John have succeeded in taking Forbang’s land at Metta quarter. You are now trying to approach Commercial Avenue by trying to link it to family land.”

In the last paragraph of Exhibit “A” the respondent described the 2nd appellant as not only a confused and dubious man, but also a cheat who had sold more family land than his (respondent’s) father ever did during his life time. The respondent also alleged in the same paragraph that the 2nd appellant deceived a certain Forbang Evaristus, got their family land and sold, thereby contributing to the stress that killed Forbang Evaristus.

The court held that the words used against the 2nd appellant cast aspersions on his character. Part of the judgment reads “To say of somebody that he/she sells land belonging to another without that person’s authorization imputes the commission of an offence contrary to article 8(4)(2) of Ordinance No. 74/1 of 6/7/74. 2nd appellant proved that the parcels of land he sold belonged to him by tendering land certificate, Exhibits “B” and “C”. The respondent never proved the contrary.

“Again to say of somebody that he is dubious, a cheat and a deceiver are also defamatory of that person. These words obviously injured the honour or reputation of the 2nd appellant. We deduce from these words that through the dubious character of 2nd appellant, he deceived and cheated family members, particularly Evaristus Forbang and sold their family land.”

The judgment Quoting section 305(1) of the penal code, which prescribes prove of the alleged facts as the only defence to defamation, the court found the respondent guilty of defamation on counts 1 and 2.

While acquitting and discharging him of counts 3, 4, 5 and 6, the appeal court also found him liable to the civil claim. The court judged that the defamation committed against the 2nd appellant was libel because it was written and printed. Going by the court, there was publication to those to whom it was copied and to prosecuting witness No.3.

In strict application of Common Law principles, the court made reference to precedence involving Nthenda Vs Alade (1974) where Justice Bello S.P held that “libel is actionable per se.” By this, the court moved that in an action for libel, the plaintiff need not prove malice in law and need not prove that he had suffered any actual damage as the result of the publication. “Both malice and damage are presumed from the publication itself, in the absence of lawful excuse.”

Referring to another precedence; ‘William Vs The West African Pilot 1961’, the court held that once publication has been found to be a libel, the law presumes damage.

Given that the 2nd appellant was once a cultural attaché in Cameroon’s embassy in the USA, the court took into consideration his social status in apportioning him general damages.

The court thus awarded costs of trial in both the magistrate and appeal courts 32.000 and 48.000FCFA respectively on the respondent. The amount, 80.000FCFA will be paid to the 2nd appellant, Nkwenti Ignatius Ndefru.

As of the penalties on count 1 and 2 which the respondent was found guilty, he was given a-three-year suspended sentence of 200.000 FCFA for each of the counts or serve six months in prison. The sentences would run concurrently.

For the civil claims, the court also charged the respondent to pay to the 2nd appellant the sum of 2MFCFA for general damages in defamation.