This is a motion for a new trial in a slander case against leaders of the Nigerian Christian Church in Georgia. They allegedly called called six immigrants "'witches" in public. The plaintiffs claim that this caused them and their families to be shunned.
The initial proceeding ended in a $3 million judgement against the church.
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
Civil Action File No. E-29132
JANE UDOFIA, MARGARET MASSODI,
MICHAEL EFFIONG, EPHRAIM
MARSHAL AKPAN, PAUL ETIM, and
GEORGE GEORGE,
Plaintiffs,
FIRST UNITED CHURCH, INC.
d/b/a SANCTIFIED MOUNT ZION
CHURCH OF NIGERIA IN THE
UNITED STATES, and AKPAN JOHN
ESENYIE, IME ANDEM, ENYANGA
UMANAH, EMILY HANSEN EMAH,
AFEIONG ISRAEL IBANGA, SOLOMON
UDO, JOHN DOE I, and JOHN DOE II,
Defendants.
AMENDMENT OF AND SUPPLEMENTATION TO
MOTION TO SET ASIDE JUDGMENT OR IN THE
ALTERNATIVE, FOR NEW TRIAL
COME NOW the Defendants and submit the amended Motion to Set
Aside Judgment or, in the Alternative, for New Trial to correct
grammatical and other errors.
Defendants supplement their Motion and Brief by submitting the
following which was inadvertently omitted from the original Motion
and Brief: Affidavits from ASIAN J. ESENYIE, EMILY HANSEN
EMAH, AFFIONG ISRAEL IBANGA and SOLOMON UDO.
Respectfully submitted,
Michael L. Wetzel
Attorney for Defendants
Ga. Bar No. 750425
1000 Main Street, Suite B
Stone Mountain, Georgia 30083
(404)879-9618
_________________________________
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
Civil Action File No. E-29132
JANE UDOFIA, MARGARET MASSODI,
MICHAEL EFFIONG, EPHRAIM
MARSHAL AKPAN, PAUL ETIM, and
GEORGE GEORGE,
Plaintiffs,
FIRST UNITED CHURCH, INC.
d/b/a SANCTIFIED MOUNT ZION
CHURCH OF NIGERIA IN THE
UNITED STATES, and AKPAN JOHN
ESENYIE, IME ANDEM, ENYANGA
UMANAH, EMILY HANSEN EMAH,
AFEIONG ISRAEL IBANGA, SOLOMON
UDO, JOHN DOE I, and JOHN DOE II,
Defendants.
DEFENDANTS' AMENDED MOTION TO SET ASIDE
JUDGMENT OR, IN THE ALTERNATIVE, FOR NEW TRIAL
<>
COME NOW the Defendants and, pray to this Court for an order
setting aside its Order and Judgment entered on the 14th day of July,
1995 on the basis that it lacked jurisdiction over the person of these
parties pursuant to O.C.G.A. SECTION 9-11-60(d) and, in the
alternative, for a new trial in that the judgment of this Court, entered
after a non-jury trial, is contrary to evidence and justice and it is
contrary to law.
WHEREFORE, Defendants pray that this Court will hear, consider
and grant their Motions and will either set aside the judgment entered
on July 14, 1995 or will grant a new trial as to all issues.
BRIEF IN SUPPORT OF DEFENDANTS'
AMENDED MOTION TO SET ASIDE JUDGMENT OR, IN THE
ALTERNATIVE FOR NEW TRIAL STATEMENT OF FACTS
I.
The Court entered its Order and Entry of Judgment on July 14, 1395,
for the sum of $3,000,000 in favor of the Plaintiffs "jointly and
severally" and from the Defendants "jointly and severally , excluding
three named Defendants, and awarding to Plaintiff George George
the sum of $10,800.00 from Defendants Jointly and severally,
excluding three named Defendants and further ordering a retraction
along with costs of Court. Each Plaintiff asserted a claim for slander
against the Defendants, jointly and severally, from statements made
by Enyanga Umanah, Emily Hansen Emah "and others" on
December 31, 1993 and repeated by Affiong Israel Ibanga on January
9, 1994 before the congregation of Defendant Church and within the
walls of the Church building. The defamatory statements were
accusations that named Plaintiffs were witches and had practiced evil
deeds upon family and fellow church members. (This summary is
taken from Plaintiffs' Complaint and the Plaintiffs' Proposed Pretrial
Order.)
II.
ARGUMENT AND CITATION OF AUTHORITY
A.
THE JUDGMENT OF JULY 14, 1995
SHOULD BE SET ASIDE AS THIS COURT
LACKED JURISDICTION OVER THE DEFENDANTS.
O.C.G.A. SECTION 9-11-60(d)(1) grants the court discretion to set
aside a judgment based on ...lack of jurisdiction over the person....
In this case, Defendant First United Church, Inc. d/b/a Sanctified
Mount Zion Church of Nigeria in the United States is allegedly a
Fulton County resident because its place of business and office is
located at 645 Carson Street, S.W., Atlanta, Georgia 30314. Unless
jurisdiction and venue is predicated on joint and several liability,
with Defendant Church being a resident of Fulton County, this Court
lacks jurisdiction over the persons of the other Defendants .<>
Service on Sanctified Mount Zion Church of Nigeria in the United
States, Inc. ("Church") was purportedly accomplished, on October
14, 1994, by leaving summons and complaint with the registered
agent for First United Church, Inc., the Reverend Dr. Edet A.
Obong," at the offices of Plaintiffs' attorney. (See Return of Service
Affidavit of Marvin Dixon.)
That service was deficient in that Obong had been stripped of his
authority to act on behalf of the Church and in fact was not a member
of the Church since his suspension on November 13, 1990. (See
Exhibit "2" to the Affidavit of Akpan John Esenyie.) The dispute
between Dr. Obong and the Church is chronicled in Obong v.
Ekereke, 216 Ga. App. 59, 453 S.E. 2d 84 (1994), which confirms
that Dr. Obong was not authorized to represent or act on behalf of the
Church at the times pertinent to service in October 1994.
As a consequence of this Court lacking jurisdiction over the Church,
arguably a Fulton County resident, venue was improper as to the
other named Defendants, over whom the Court therefore lacked
jurisdiction. Put another way, if the Church was not subject to the
Court's jurisdiction, venue is improper as to the other Defendants and
the Court lacks jurisdiction over them. Russell v. Hall, 165 Ga. App.
547, 548, 301 S.E. 2d 904 (1983); Evans v. Montgomery Elevator
Co., 159 Ga. App. 834, 835, 285 S.E. 2d 236 (1381); Lansky v.
Goldstein, 136 &a. App. 607(2), 222 S.E. 2d 62 (1975).
Even if the Court had jurisdiction over the Defendants on the
assumption that the Church was properly before it, it lost that
jurisdiction by virtue of the Church not being subject to the
jurisdiction of this Court. Consequently, a verdict against the
remaining Defendants is void. Stroud v. Dolittle, 213 Ga. 32, 96 S.E.
2d 876 (1957); see also Schwarcz v. Charlton County, 211 Ga. 923,
89 S.E. 2d 881 (1955).
B.
DEFENDANTS ARE ENTITLED TO NEW TRIAL
In the event that Defendants' Motion to set aside the judgment is
overruled, they are entitled to a new trial for the following reasons:
1. CHURCH CANNOT BE LIABLE FOR SLANDER OR
CONSPIRACY TO SLANDER.
Plaintiffs' Complaint and Pre-Trial Order alleged that the Defendants
are guilty of a conspiracy to commit slander. The allegations with
respect to the Church are not predicated on respondeat superior.
An alleged conspiracy which includes the Church is contrary to the
law of Georgia, which holds that an individual arguably can be liable
for conspiracy to commit slander, but that has not been extended to a
corporation. Jordan v. Hancock, 91 Ga. App. 647, 86 S.E. 2d 11, 16
(1955). A corporation cannot conspire with itself. Nalley Northside
Chevrolet Inc. v. Herring, 215 Ga. App. 185, 188, 450 S.E. 2d 452
(1994). A church has been defined as 'a building consecrated to the
honor of God and religion, with its members united in the profession
of the same Christian faith.' Wiggins v. Young, 206 Ga. 440, 57 S.E.
2d 486, 487 (1950). Consequently, as a church is not separate from
its members, it cannot conspire with itself to commit slander. Cf.
Nalley Northside Chevrolet, Inc. v. Herring supra.
While not suggested by Plaintiffs, the Defendant Church cannot be
held liable under a theory of respondeat superior for slander because
there was not even any allegation that it expressly directed or
authorized any one of the other named Defendants to speak the words
in question. Church of God, Inc. v. Shaw, 194 Ga. Amp. 694, 391
S.E. 2d 667, 668 (1990). See also Behre v. National Cash Resister
Co., 100 Ga. 213(1), 27 S.E. 986 (1897); Bell v. Thiokol Chemical
Corp., 126 Ga. App. 167, 190 S.E. 2d 150, 151 (1972); Safety-Klean
Corp. v. Smith, 203 Ga. App. 514, 417 S.E. 2d 171, 172 (1992).
The Church would be entitled to judgment in its favor as a matter of
law or, at the very least, a new trial should be granted. Moreover,
because the Church cannot be held liable as a matter of law, upon its
dismissal, this Court losses jurisdiction over the persons of the other
named Defendants. (See Argument in Support of Defendants' Motion
for New Trial, supra.)
2. JUDGMENT AWARDING $3,000,000 "JOINTLY AND
SEVERALLY TO PLAINTIFFS' IS VOID ON ITS FACE.
A motion for new trial is the proper vehicle for attacking a judgment
defective on its face.<>
Each of the Plaintiffs set forth a claim for slander, in a separate count
in the Complaint, which was then reiterated in Plaintiffs' Proposed
Pretrial Order. The judgment of this Court, entered on July 14, 1995,
awarded $3,000,000 "jointly and severally to the Plaintiffs.
The Georgia Supreme Court addressed a similar situation with.
respect to which it made the following comment: Bathe petition
contains two causes of action in favor of different plaintiffs and
properly there should have been a verdict in favor of each plaintiff
for a given amount." Georgia Railroad Co. v. Tice, 124 Ga. 457(2),
464, 52 S.E. 916 (1905) .<>
3. JUDGMENT ORDERING RETRACTION IS VOID.
In addition to awarding damages, the Court ordered Defendants to
issue a "formal verbal and written retraction" of each slanderous
accusation. That part of the judgment is void because the Court
exceeded its jurisdiction. The remedy for slander is damages,
O.C.G.A. SECTION 51-5-4(b). Equity will not enjoin libel and
slander. Pittman v. Cohn Communities, Inc., 240 Ga. 106, 239 S.E.
2d 526, 528 (1977). A person who abuses the right of free speech is
"accountable for injuries sustained by others." Singer Mfg. Co. _.
Domestic Sewing Mach. Co., 49 Ga. 70, 72 (1873). Courts leave the
parties to their remedies at law . Id., 49 Ga. at 73.
4. JUDGMENT IS EXCESSIVE.
<>
$3,000,000 in general damages were awarded to the Plaintiffs in this
action jointly and severally.
In discussing when a verdict may be found so excessive as to show
undue bias or prejudice, such a verdict must "carry its death warrant
upon its face", be "monstrous indeed," "must shock", or "appear
exorbitant." Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 319
S.E. 2d 470, 481 (1983 Smith c. Milliken, 247 Ga. 369, 276 S.E. 2d
35, 38 (1981). That this case falls within those parameters can easily
been seen by comparing it to the verdict in Simon v. Shearson
Lehman Bros., Inc., 895 F. 2d 1304 (11th Cir. 1990), which was
decided under Georgia law. In that case there was evidence that the
brokerage firm's slanderous remarks to an investor, regarding his
business manager, caused impairment of the manager's reputation,
humiliation and anguish, but the court held that the award of
$1,000,000 in general damages was excessive as a matter of law, in
light of the fact that slander did not cause the manager any economic
loss.
5. A NEW TRIAL SHOULD BE GRANTED BECAUSE THIS
COURT LACKED SUBJECT MATTER JURISDICTION OVER
THE INTERNAL ECCLESIASTICAL MATTERS OF THE
CHURCH.
The alleged defamatory statements were made before the
congregation during church services on December 31, 1993 and were
repeated on January 9, 1994 in the context of a "testimony" or
"confession" given by three members of the Church. As stated by our
Constitution, "A person has the natural and inalienable right to
worship God, each according to the dictates of that person's own
conscience; and no human authority should, in any case, control or
interfere with such right of conscience. Art. I, Sec. I, Para. 3, Ga.
Const. of 1983. Giving testimony or making a confession during 2
religious service qualifies for the constitutional protection cited
above.
As stated by our Supreme Court, for the Christian Church Universal,
congregational worship services would include saying prayers,
singing hymns, reading scriptures, and the giving of testimonies and
sermons in a congregational setting.***" (emphasis added) Leggett v.
Macon Baptist Assoc., Inc., 232 Ga. 27, 205 S.E. 2d 197, 200 (1974).
Significantly, that proposition was recognized in Roberts v.
Ravenwood Church of Wicca, 249 Ga. 348, 292 S.E. 2d 657, 659
(1982) where the Wiccan Church, whose members were commonly
referred to as witches and warlocks, was recognized as a "church".
Our courts have repeatedly held that the courts cannot inquire into an
internal ecclesiastical question, which is defined as "a matter which
concerns theological controversy, church discipline, ecclesiastical
government, or the conformity of members of the church doctrine,
discipline, ecclesiastical government, or the conformity of members
of the church to the standard of morals required of them." Carnes v.
Smith, 236 Ga. 30, 222 S.E. 2d 322, 325 fn 2 (1976), quoting Watson
v. Jones, 80 U.S. (13 Wa11 ) 679, 20 L. Ed. 666 (1871).
Examples of where the court was held not to lack jurisdiction over
ecclesiastical matters abound under Georgia law. See, e.g., Sapp v.
Calloway, 208 Ga. 805, 69 S.E. 2d 734 (1952) (trial court erred in
charging the jury that it should determine whether a labor union was
an oath-bound secret society, where the church had voted to stand
aloof from oath- bound secret societies, including labor unions, and
had expelled members who declined to submit to that order); Id.,
210 Ga. 277, 79 S.E. 2d 532 (1954) (reversing judgment for plaintiff
members because the court had allowed testimony that members of
the faction, to which witness belonged, had consistently adhered to
the faith, doctrines, practices, and decorum of the church, and that the
majority faction had departed therefrom); McDonnell v. Episcopal
Diocese of Ga., 191 Ga. App. 174, 381 S.E. 2d 126 (1989) (summary
judgment to the Diocese was affirmed on the basis that the civil court
did not have jurisdiction of the ecclesiastical issue involving a
clergyman's termination from his capacity as minister of two mission
churches); Camp v. Durham, 219 Ga. 543, 134 S.E. 2d 598, 599
(1964) (whether church could expel from membership those who
advocated or taught Sunday School with materials other than the
Holy Bible); Stewart v. Carried, 206 Ga. 85,5, 59 S.E. 2d 368 (1950)
(court refused to adjudicate an article of faith and determine the "true
and correct members of the 'church'."); Knowles v. White, 199 Ga.
772, 35 S.E. 2d 451 (1945) (court refused to intervene n a suit by a
deacon and member seeking an adjudication of the question of who
was the lawful pastor of the church ); Gervin v. Reddick, 246 Ga. 56,
268 S.E. 2d 657, 659 (1980) (court had no jurisdiction to order
church to adopt Mitten by-laws; lacked authority to appoint a special
master to regulate the internal affairs and doctrine of the church).
Finally, in Crosby v. Lee, 88 Ga. App. 589, 76 S.E. 2d 856 (1953),
the trial court correctly dismissed plaintiff's suit for defamation in the
nature of a circular letter written by the clerk of the Alapaha River
Primitive Baptist Association, suggesting the expulsion of Crosby,
among others, for his many "transgressions", "innocent blood he has
shed", accusing him of being part of a "bunch of gangsters", an
ungodly man and an Edomite. Id., 67 S.E. 2d at 856-857.
6. IF THE CONDUCT OF WHICH PLAINTIFFS COMPLAIN DID
NOT INVOLVE AN ECCLESIASTICAL MATTER,
DEFENDANTS' STATEMENTS ARE ENTITLED TO A
QUALIFIED PRIVILEGE WITH RESPECT TO WHICH
PLAINTIFFS FAILED TO SHOW ACTUAL MALICE.
Statements of church members, made in the course of disciplinary or
expulsion proceedings, or during Church worship, in the absence of
actual malice, are protected by a qualified privilege. 50 Am. Jur. 2d,
Libel and Slander 209; 63 ALR 649, 650. Defendants submit that
testimonies and confessions, given during the course of a worship
service, are entitled to the same conditional privilege, O.C.G.A.
SECTION 51-5-7(2), as are statements made during the course of a
church disciplinary proceeding or conference. Giving testimonies is a
generally accepted public notion of congregational worship services
intended to express adoration and homage for the Deity. Leggett v.
Macon Baptist Assoc., Inc., supra.
In Etchison v. Pergerson, 88 Ga. 620 (1891) the court held that,
"when one church member is a witness on the trial of another before
the proper church tribunal, a bona fide disclosure of all relevant facts
is incumbent upon him as a private moral duty [which have a
qualified privilege under Former Code Section 2980, the predecessor
to O.C.G.A. SECTION 51-5-7]; If those facts necessarily involve
misconduct or even a crime on the part of a person not a member of
the church, the naming of such person, as a part of the relevant
testimony of the witness, is within the protection of the privileged
occasion." Id., 88 Ga. at 621(2).
The statements allegedly made by Defendants, with which the other
Defendants allegedly conspired, are entitled to the conditional
privilege conferred by Section 51-5-7. Consequently, Plaintiffs had
the burden of proving malice. See Melton v. Bow, 145 Ga. App. 272,
243 S.E. 2d 590, 591 (1978), aff'd 241 Ga. 629. 247 S.E. 2d 100
(1978); Layfield v. Turner Advertising 181 Ga. App. 824, 826, 354
S.E. 2d 14 (1987); accord, Criswell v. Pruitt, 239 S.W. 2d 165 (Texas
Civil App. 1951). Accord, Flanders v. Dailey, 120 Ga. 885, 889, 48
S.E. 327 (1904) (where Methodist Minister was accused of being
unfit, too dangerous and indiscreet by a member of the church or as a
member of the quarterly conference of the church, at a time when the
plaintiff's character WaS under investigation, and were uttered in
good faith, the defendant would not be liable in damages,
notwithstanding the language used might be calculated to injure the
plaintiff in his profession as a minister of the gospel. In that case, the
Supreme Court reversed a dismissal of the action as the pleadings did
not show that the defendant was entitled to invoke the conditional
privilege).
Absent proof by the Plaintiffs of actual malice on the part of the
Defendants, they are entitled to recover. Defendants are not entitled
to a new trial on this issue. See Herndon v. Melton, 249 N.C. 217,
105 S.E. 2d 531 (1958) (failure to prove express or actual malice
entitled defendant to judgment as a matter of law); accord, Browning
v. Gomez, 332 S.W. 2d 588 (Texas Civil App. 1960); Wolff v.
Benovitz, 301 Sy. 661, 192 S.W. 2d 730 (1946); Murphy v. Hasty,
353 P. 2d 206 (Oregon 1964); Mosely v. Evans, 90 Ohio App. 3d
633, 630 N.E. 2d 75 (1993).
7. THERE WAS NO LEGAL "PUBLICATION OF THE ALLEGED
DEFAMATORY STATEMENTS.
The alleged defamatory statements were made before the
congregation during a church service on December 31, 1993 and
repeated on January 9, 1994 at another church service.
In Rasmussen v. Bennett, 741 P. 2d 755 (Mont. 1987), the court
found that the defendant's statements were made before the
congregation and were based on ecclesiastical doctrine which
prohibited adultery. Defendants were guaranteed the free exercise at
religion under the First Amendment of the United States Constitution
and the Montana Constitution. Id., at 758.
Moreover, the court rejected the plaintiff's contention that the
congregational gathering included non-church members and thus the
statements exceeded the scope of the privilege. The incidental
communication to non-church members attending the service does
not eliminate the privilege. cit] Id., 741 P. 2d at 758.
Rasmussen is consistent-with the intracorporate communication
doctrine declared in Kurtz v. Williams, 188 Ga. App. 14, 371 S.E. 2d
878, 880 (1988): "Over the years, however, an exception to the broad
definition of publication has evolved: When the communication is
intracorporate, or between members of unincorporated groups or
associations, and is heard by one who, because of his/her duty or
authority has reason to receive the information, there is no
publication of the allegedly slanderous material, and without
publication, there is no cause of action for slander. [cits]."
Applying this principle, the court in Church of Scientology of
California, Inc. v. Green, 354 F. Supp. 800 (SDNY 1973) dismissed
the slander action by a member of the church based on the following
rationale: "However, the publication in this instance is subject to a
qualified privilege and is, therefore, permissible. A communication
made between officers within the organizational structure of the
church, or a corporation for that matter, made in good faith, in any
subject in which the one communicating has an interest or in which
there is a duty, is privileged if made to a person having a
corresponding interest or duty, even though it contains matter which
without this privilege, would be Actionable. Such is the case even
though the duty is not a legal one but only a moral or social duty or
obligation. [cits]" Id., 354 F. Supp. at 804.
The moral duty in this case was for the members of the Church to
confess their sins and testify as to their conduct prior to salvation,
from which they have repented to conform to and obey the standard
of morals required of them. The confession or testimony was heard
only by those persons within the congregational service at the
Defendant Church premises. That there may have been nonmembers
in attendance does not deprive the Defendants of the privilege or
otherwise constitute a publication.
WHEREFORE, for the reasons shown, Defendants are entitled to
have the judgment set aside for lack of jurisdiction of this Court or, at
the least, to a new trial.
Respectfully submitted,
Michael Wetzel
Attorney for Defendants
Ga. Bar No. 750425
1000 Main Street, Suite B
Stone Mountain, Georgia 30083
(404)879-9618
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