ADIO v. ADESANOLU (2020)

ADIO v. ADESANOLU

(2020)LCN/14699(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Wednesday, October 28, 2020

CA/IB/93/2014

RATIO

PLEADINGS: ESSENCE OF PLEADINGS

It is trite that the essence of pleadings is to compel parties to define concisely, accurately and precisely the issues upon which their case would be fought. This is to avoid parties springing surprises at each other and for this reason parties are bound by their pleadings and evidence led on facts not pleaded go to no issue. A defendant in an action must be put on notice of the allegations against him to enable him prepare his defence. See C.N. OKPALA & SONS LIMITED VS. NIGERIAN BREWERIES PLC (2018) 9 NWLR (PT. 1623) 16; OSUJI VS. EKEOCHA (2009) 16 NWLR (PT. 1166) 81; ATTORNEY GENERAL ANAMBRA STATE VS. C.N. ONUSELOGU ENTERPRISES LIMITED (1987) 4 NWLR (PT. 66) 547; ADESANYA VS. OTUEWU (1993) 1 NWLR (PT. 270) 414 AND UGBODUME VS. ABIEGBE (1991) 8 NWLR (PT. 209) 261. PER OJO, J.C.A.

PLEADINGS: HOW ISSUES OF DEFAMATION BE COMPLAINED OF IN PLEADINGS

The Appellant’s case at the lower Court is rooted in defamation. He must therefore set out in his statement of claim the particular words complained about which he found offensive to enable the Court determine whether or not they are defamatory or merely abusive and give notice to the defendant of his case. The very words complained of are the facts on which the action is grounded. See SKYE BANK PLC. VS. AKINPELU (2010) 9 NWLR (PT. 1198) 179; IROM VS. OKIMBA (1998) 3 NWLR (PT. 540) 19; J.I. OKOLO VS. MID WEST NEWSPAPER CORPORATION & ORS. (1977) 1 SC 33. In GUARDIAN NEWPAPER LTD. VS. AJEH (2011) 10 NWLR (PT. 1256) 574, the Supreme Court per Rhodes-Vivour JSC held as follows:
“In cases of libel, pleadings are of tremendous importance, and so the Plaintiff who claims that an article is libellous of him must reproduce the whole article verbatim or the passage he complains of in his pleadings. No matter how long the article is, it must be reproduced.
See D.D.G.A. PHARMACEUTICALS LTD. VS. TIMES NEWSPAPER LTD. 1973 IQB P.21 relied on by this Court in OKAFOR VS. IKEANYI (1979) 12 NSCC P.43.” PER OJO, J.C.A.
DEFAMATION: DUTY OF A PLAINTIFF IN AN ACTION FOR LIBEL

In his book DEFAMATION – LAWS, PRACTICE AND PROCEDURE 2nd Edition. T.A.O. TUGBIYELE Esq. stated as follows:
“3. The Plaintiff must set out in his statement of claim the actual words of the libel. This is to enable the Court to decide whether there is a ground of action. ONDO STATE HOUSING CORP. VS. SHITTU (1994) 1 NWLR (PT. 321) 476 AT 483 (CA); NEPA VS. INAMETI (2002) FWLR (PT. 130) 1685 AT 1717- 1718 (SC).
In an action for libel, the Plaintiff must of necessity rely on the precise words alleged to be defamatory. The Court will upon the perusal of the actual words complained of; determine whether or not the words complained of are material facts necessary for the prosecution of the Plaintiffs case. OKPOZO VS. BENDEL NEWSPAPER COR. (1990) 5 NWLR (PT. 153) 652 AT 658 (CA); OKAFOR VS IKEANYI (1979) 3-4 SC 99 AT 104; 1979 ALL NLR 65; NINGI VS. FBN PLC (1996) 3 NWLR (PT. 435) 220 AT 235 (CA).
4. The libellous passage only is to be set out in the statement of claim.
5. In an action for slander, the actual words spoken must be set out verbatim in order that the defendant may know the certainty of the charge, and may be able to shape his defence.
Where the slanderous words are as a result of question and answer, both the question must be set out. If the slander was conveyed by signs or gestures, such must be described with an innuendo as to their meaning”.
It follows therefore that in a defamation action, the claimant must set out in his statement of claim the exact words which he alleges are defamatory of him. See ONYEJIKE VS. ANYASOR (1992) 1 NWLR (PT. 218) 437; AFRIBANK (NIG) PLC VS. ONYIMA (2004) 2 NWLR (PT. 858) 654 AND OKOLIE VS. MARINHO (2006) 15 NWLR (PT. 1002) 316. PER OJO, J.C.A.
PLEADINGS: EFFECT OF REFERENCE TO A DOCUMENT IN A PLEADING

I agree with Counsel that the law is settled that where a document is referred to in a pleading it forms part of the pleading and the Court may look at them. See MARINE MANAGEMENT ASSOCIATES INC VS. NATIONAL MARITIME AUTHORITY (2012) 18 NWLR (PT. 1333) 506; SIFAX (NIG) LIMITED VS. MIGFO (NIG) LIMITED (2018) 9 NWLR (PT. 1623) 139; BANQUE GENEVOISE DE COMMERCE ET DE CREDIT VS. CIA MAR DI ISOLA SPETSAI LTD (1962) LPELR- 25038 (SC). PER OJO, J.C.A.
LIBEL: POSITION OF THE LAW WHERE THE LIBELOUS WORDS ARE ALLEGED TO HAVE BEEN MADE IN A FOREIGN LANGUAGE

It is well settled law that where the libelous words are alleged to have been made in a foreign language, the words must be set out in the original version it was made followed by the English translation. It is only when the original version in the language it was made is pleaded that the action would be deemed to be properly constituted. See ALAWIYE VS. OGUNSANYA (2004) 4 NWLR (PT. 864) 486; SOWOLE VS. EREWUNMI (1961) 1 ALL NLR 741; AJIDAHUN VS. OJO (2014) LPELR-41108 (CA). In ORUWARI VS. OSLER (2013) 5 NWLR (PT. 1348)535, the Supreme Court, per Chukwuma-Eneh, JSC held as follows:
This position in this regard is ably supported by the Learned authors of Gatley on Libel and Slander (9th Edition) paragraph 26.15 at 659 as follows:
“Where the libel or slander was published in a foreign language, it must be set out in the statement of claim in that language and followed by a literal translation. It is not enough to set out a translation without setting out the original or vice versa. The pleader should include an allegation to the effect that the translation is a true interpretation of the foreign language used”. PER OJO, J.C.A.
ACTION: MEANING OF A CAUSE OF ACTION

A reasonable cause of action means a cause of action with some chance of success when only the allegations in the Statement of Claim are considered. Where the Statement of Claim of a Claimant discloses no reasonable cause of action and the Court is satisfied that no amendment no matter however ingenious will cure the defect, the Statement of Claim will be struck out and the action dismissed. See IYEKE VS. PETROLEUM TRAINING INSTITUTE (2019) 2 NWLR (PT. 1656) 217; BARBUS AND CO. (NIG) LTD VS. OKAFOR-UDEJI (2018) 11 NWLR (PT. 1630) 298 AND THOMAS VS. OLUFOSOYE (1986) 1 NWLR (PT. 18)669. PER OJO, J.C.A.

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

DELE ADIO APPELANT(S)

And

CHIEF TAJUDEEN ADESANOLU RESPONDENT(S)

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the Judgment of the Ogun State High Court in the Abeokuta Judicial Division holden at Abeokuta in Suit No: AB/202/2011 delivered on 29th of October 2013.

The Appellant as Claimant before the lower Court took out a Writ of Summons on the 22nd of August 2011. By an Amended Statement of Claim filed on 13th of February, 2013, he claimed as follows:
(a) A Declaration that the malicious complaint made by the Defendant at the Alake in Council Complaint Committee at Ake is defamatory to the good reputation of the Claimant.
(b) A Declaration that the defaming statement caused injury to the Claimant’s political ambition and other status the Claimant has acquired over the years.
(c) The sum of N25,000,000 (Twenty Five Million Naira) being general damage caused the Claimant as a result of false accusation and malicious statement made at Alake in Council Complaint Committee in Ake Abeokuta.
(d) The sum of N50,000,000 (Fifty Million Naira) being special damage for the act of Defamation committed by the Defendant.

A summary of the background

facts that led the Appellant to file the suit at the lower Court is that at a meeting of the Alake in Council Complaints Committee held at Idi Ere, Ake Palace, Ake, Abeokuta on 3rd of February 2009, the Respondent made defamatory remarks about him. He claimed that during the meeting held at a public place the Respondent alleged that he (the Appellant) sent three hoodlums to kidnap him from his palace at Adesanolu Village with the intention of killing him. He said indigenes of Abeokuta and several Communities making up Egba Land, Ogun State and some visitors were present at the meeting. The Appellant further claim that due to the defamatory statement made about him at the meeting he could not contest election into the office of Obafemi/Owode Local Government and that the reputation he built over the years as a retired Flying Officer, a frontline politician and titled Chief was destroyed by the Respondent.

At the hearing before the lower Court, the Appellant testified on his own behalf and called one witness. The Respondent also testified on his own behalf and called one witness. Parties filed and exchanged Written Addresses which Counsel adopted as their

respective arguments in support of the case of parties. In a considered Judgment delivered on 29th October, 2013, the learned trial Judge dismissed the case of the Appellant and held inter alia as follows:
“A Claimant must rely on the strength of his own case. The law is trite that a claimant must prove his case with credible evidence before the burden placed on him by the law can shift to his opponent. See PIARO VS TENALO (1976) 12 SC (REPRINT) 19 AND IHEKORONYE VS HART (2000) 15 NWLR (PT. 692) 840. The claimant herein has failed to prove his entitlement to the declaratory orders sought by him. For failure to prove reliefs (a) & (b), reliefs (c) & (d) which are consequential reliefs for general and special damages, respectively, cannot be sustained. In sum, the claimant’s claims fail in entirety and are hereby dismissed.”
See pages 227 – 232 and particularly page 232 of the Record.

Dissatisfied with the Judgment of the lower Court, the Appellant filed a Notice of Appeal containing six (6) Grounds of Appeal on the 3rd of December 2013. The original Notice of Appeal was amended. The Amended Notice of Appeal which

contains two Grounds of Appeal filed on 15th of August 2017 was deemed as properly filed on the 24th of April 2018. Parties filed and exchanged their respective Briefs of Argument in this Court. The extant Appellant’s Brief of Argument filed on 21st of September, 2018 was deemed as properly filed on 21st of January, 2019. The Respondent’s Brief of Argument filed on 18th November, 2019 was deemed as properly filed on 8th of July, 2020.

At the hearing of this appeal on the 9th of September 2020, Learned Counsel on both sides adopted the respective Briefs of Argument filed on behalf of the parties as their oral arguments in urging us to allow/dismiss the appeal.

In the Appellant’s Brief of Argument settled by Adekunle A. Ojo of Counsel, two issues were identified for the determination of this appeal. They are:
“1. Whether the trial Court properly evaluated the pleadings and the documents attached thereon before dismissing the claim of the Appellant on the ground that the defamatory words were not set out in Yoruba Language in the pleadings.
2. Whether in view of the evidence on record and witnesses who testified, the

learned trial Judge erred in law by holding that the Appellant did not call any witness to prove the publication of the libellous matters.”

In the Respondent’s Brief of Argument settled by J.B. Adefila of Counsel, the following sole issue was formulated for determination:
“Whether given the state of the pleadings and evidence before the lower Court, the learned trial Judge was right in dismissing the Appellant (claimant’s) case.”

I am of the view that the two issues formulated on behalf of the Appellant can be conveniently dealt with under the sole broad issue formulated on behalf of the Respondent. I shall therefore determine this appeal on the sole issue formulated on behalf of the Respondent.

SOLE ISSUE FOR DETERMINATION:
“Whether given the state of the pleadings and the evidence before the lower Court, the learned trial Judge was right in dismissing the Appellant’s (claimant’s) case.”
On whether the lower Court did a proper evaluation of the pleadings and the documents attached thereon, learned Counsel to the Appellant submitted the learned trial Judge misconceived the facts

of the case and the law when he held that the Appellant failed to set out the alleged defamatory words in the Yoruba dialect they were said as well as the English translation in his pleadings. He argued that the cases of SOWOLE VS EREWUNMI (1961) 1 ANLR 741; ALAWIYE VS OGUNSANYA (2004) 4 NWLR (PT. 864) 486 AND ORUWARI VS OSLER (2012) LPELR- 19764 (SC) relied upon by the learned trial Judge do not support the conclusion reached by him.

Learned Counsel contended further that the defamatory words complained about were published in English Language on three occasions and once in Yoruba language and therefore no further interpretation was needed at the trial. He pointed out that Exhibit C1 is a third party document which contains the defamatory words used by the Respondent in a language known to the Court. He went on to highlight the four occasions when the defamatory words were used. He urged us to hold that since the Respondent published the defamatory words in English language on three occasions, the need to interpret the words to any foreign Language did not arise.

He argued further that the conclusion of the learned trial judge that the defamatory words

were not pleaded was contrary to the pleadings before him. He referred to Paragraph 3 of the Reply to Statement of Defence, Paragraphs 8 and 9 of the Amended Statement of Claim; Respondent’s Counsel’s letter (Exhibit C6) and the proceedings of the Alake in Council (Exhibit C1). He submitted that documents attached to a Writ of Summons and Statement of Claim form part of the pleadings. He craved in aid of his submission the Provisions or Order 3(2) of the High Court of Ogun State Civil Procedure Rules, 2014 and the cases of IDRIS VS. A.N.P.P (2008) 8 NWLR (PT. 1088) 1; BUHARI & ORS VS HADDY SMART NIGERIA LTD & ANOR (2009) LPELR-8362 (CA); JFS INV LTD VS BRAWAL LINE LTD (2011) AFWLR 867 AT 899, PARAS.E-H.

Learned Counsel to the Appellant argued further that the lower Court was wrong when it found the Appellant failed to call evidence that the uttered words lowered him in the estimation of right thinking people in view of its earlier finding that the Appellant’s pleading was not sufficient to ground his claim. This position of the learned trial judge he submitted was contrary to the settled position of the law that a Court cannot

approbate and reprobate in the same matter before it. He cited the case of ODUTOLA HOLDINGS LTD VS LADEJOBI (2006) 12 NWLR (PT. 994)321 in support. He went on to rely on the case of SKYE BANK PLC & ANOR VS AKINPELU (2010) 9 NWLR (PT. 1198)179, to submit that the three essential elements to be proved by a claimant in a case of defamation are as follows:
a) That there is the publication of the material complained of by the defendant.
b) That the publication refers to no other person but the plaintiff conclusively and
c) That the publication is defamatory of the plaintiff.

He argued there is no dispute that the words complained of were communicated by the Respondent to the Alake in Council, his Lawyer, the People present at the town hall meeting, people present at the public sitting, of the Alake in Council and the whole world. He also referred to Exhibits C1 and C6.

On the second ingredient, he submitted the words complained about undoubtedly referred to the Appellant.
On the third ingredient, his contention is that the Appellant proved that the publication robbed him of his dignity and political aspiration. He further submitted

that the Appellant as claimant before the lower Court proved the ingredients by both oral and documentary evidence.

He finally urged us to hold that there is sufficient evidence on record for the trial Court to have found for the Appellant and that the dismissal of the Appellant’s case is perverse and occasioned a miscarriage of justice. He urged us to allow this appeal.

For his part, learned counsel to the Respondent argued that the Appellant failed to prove his case at the lower Court to entitle him to the declarations sought. He submitted the law is that declaratory reliefs are granted based on cogent, credible and convincing evidence by the claimant and not on admission, default of defence or weakness of defence. He craved in aid of his submission the cases of COL. NICHOLAS ANYANRU (RTD) VS. MANDILAS LTD. (2007) 4 SC (PT. 111) 58 AND KWAJAFFA & ORS. VS. BANK OF THE NORTH LTD. (2004) 13 NWLR (PT. 889) 146.

He went on to highlight the four ingredients that must be proved by a claimant in an action for libel. He submitted such claimant is required to plead verbatim in his statement of claim the exact words uttered by the Defendant

in the language it was made. He relied on the cases of SKETCH PUBLISHING CO. LTD. VS. AJAGBEMOKEFERI (1989) 1 NWLR (PT. 100) 678; OLAIFA VS. AINA (1993) 4 NWLR (PT. 286) 192 AND OKAFOR VS. IKEANYI (1979) 3-4 SC 99 to submit that the Appellant failed to plead the words complained of.

He submitted that the Appellant cannot rely on Exhibit C1 to submit the words complained of were pleaded. This he said is because there is a difference between mandatory pleading of facts and the evidence with which such facts would be proved in Court. He then went on to argue that having failed to plead the offensive words uttered by the Respondent, the Appellant’s case is liable to be dismissed. He craved in aid of his submission the cases of EMEGOKWUE VS. OKADIGBO (1973) 1 ALL NLR 379, OLANIYI VS. ELERO (2007) 8 NWLR (PT. 1087) 517 AND BASSIL VS. FAJEBE (2001) 11 NWLR (PT. 725) 592.

Learned counsel to the Respondent submitted further that the Appellant who admitted under cross examination that the alleged defamatory statement was made in the Egba dialect of Yoruba language i.e. a foreign language had a duty to plead specifically the exact words spoken in the language

they were made and also the English translation. He cited in support of his submission the cases of SOWOLE VS. EREWUNMI (1961) ALL NLR (Reprint) 741; ALAWIYE VS. OGUNSANYA (2003) FWLR (PT. 182) 1873 AND INOMA VS. NZEKWU (2008) 36 WRN 181 as well as the book “DEFAMATION: LAWS, PRACTICE AND PROCEEDURE” 2nd Edition authored by T.A.O. TUGBIYELE.

He submitted further that the Appellant who alleged that the words complained about were spoken in a public place and to the hearing of many other people had a duty to call at least one person who was present when the words were spoken and whose view of him was adversely affected. He relied on the cases of UNITY BANK PLC VS. ABIOLA (2009) ALL FWLR (PT. 452) 1082, NSIRIM VS. NSIRIM (1990) 3 NWLR (PT. 138) 285 AND ADENIJI & ANOR. VS. FETUGA (1990) 5 NWLR 150.

He submitted that the only witness of the Appellant who testified as CW2 did not give evidence that he was present when the alleged words were spoken of the Appellant and did not give evidence of his perception of the Appellant after the words were spoken. He finally urged us to dismiss this appeal in its entirety.

The trial Judge in his judgment after a consideration of the pleadings of the Appellant went on to dismiss his case. He found the failure of the Appellant to specifically plead the offensive words in the language it was made and the English translation very fatal.

The Appellant’s case at the lower Court is rooted in defamation. He must therefore set out in his statement of claim the particular words

complained about which he found offensive to enable the Court determine whether or not they are defamatory or merely abusive and give notice to the defendant of his case. The very words complained of are the facts on which the action is grounded. See SKYE BANK PLC. VS. AKINPELU (2010) 9 NWLR (PT. 1198) 179; IROM VS. OKIMBA (1998) 3 NWLR (PT. 540) 19; J.I. OKOLO VS. MID WEST NEWSPAPER CORPORATION & ORS. (1977) 1 SC 33. In GUARDIAN NEWPAPER LTD. VS. AJEH (2011) 10 NWLR (PT. 1256) 574, the Supreme Court per Rhodes-Vivour JSC held as follows:
“In cases of libel, pleadings are of tremendous importance, and so the Plaintiff who claims that an article is libellous of him must reproduce the whole article verbatim or the passage he complains of in his pleadings. No matter how long the article is, it must be reproduced.
See D.D.G.A. PHARMACEUTICALS LTD. VS. TIMES NEWSPAPER LTD. 1973 IQB P.21 relied on by this Court in OKAFOR VS. IKEANYI (1979) 12 NSCC P.43.”
The claim of the Appellant before the lower Court has been set out in the earlier part of this judgment. I shall do so again for ease of reference. It is as follows:

a) A Declaration that the malicious complaint made by the Defendant at the Alake in Council complaint committee at Ake is defamatory to the good reputation of the claimant.
b) A Declaration that the defamatory statement caused injury to the claimant’s political ambition and other status the claimant has acquired over the years.
c) The sum of N25,000,000 being general damage caused the claimant as a result of false accusation and malicious statement made at Alake in Council Complaint Committee in Ake Abeokuta.
d) The sum of N50,000,000 (Fifty Million Naira) being special damage for the act of Defamation committed by the Defendant.
It is crystal clear from the reliefs claimed by the Appellant that his action is founded on defamation. He therefore had a duty to set out the words complained about verbatim in his statement of claim. The extant statement of claim of the Appellant at the lower Court is his amended statement of claim filed on 18th February 2013. It consists of thirty four paragraphs and it is contained at pages 136-140 of the record. I have carefully gone through it and there is nowhere the words complained about which the Appellant alleged

were uttered by the Respondent against his person were quoted. Paragraphs 8-10 which contain what happened at the meeting read as follows:
“8. The claimant avers that on the 3rd of February 2009 the defendant brought a complaint against the claimant before the Alake in council complaints committee sitting at Idi Ere, Ake Palace, Ake Abeokuta alleging the Claimant Mr. Dele Adio sent three hoodlums to his palace at Adesanolu Village to come and kidnap him to kill him.
9. The claimant avers that the Alake in Council Committee sitting at Idi Are Palace is a public place where all indigenes of Abeokuta and several communities making up the Egbaland in Ogun State and their visitors attend to watch and hear the proceedings.
10. The claimant avers that on the 19th of February 2009, the defendant again repeated his allegation against the claimant to the hearing of all the chiefs and other distinguished sons and daughters of Egba land who have assembled to hear the proceedings of the committee on the said date”.
The exact words allegedly uttered by the Respondent which the Appellant claims to be defamatory are not contained in the amended

statement of claim he filed. The Appellant has however argued that the actual words are pleaded in paragraph 3 of the Reply to Statement of defence. See paragraph 4.15 of the Appellant’s brief of Argument. The Reply to statement of defence dated 13th March 2012 is at pages 52-60 of the record. Paragraph 3 thereof reads as follows:
“3. The claimant avers that in response to paragraph 6 of the Defendant’s statement of defence that the complaint brought by the Defendant to the Alake in council was unequivocally spelt out in the judgment delivered by the Alake in council on the 11th of June 2009 and it reads complaint – on 3/2/2009 Chief Tajudeen Adesanolu brought a threat to his life against Dele Adio, in his statement, he said as follows: That Mr. Dele Adio sent three hoodlums to Adesanolu village to kidnap him” same is exhibited in the claimant’s process”.
I have earlier on stated the law on the material facts that must be in the statement of claim in an action rooted in defamation. The question that begs for an answer is whether the averments in paragraph 3 of the reply to statement of defence quoted above satisfy

the requirement of the law on what the statement of claim must include.
In his book DEFAMATION – LAWS, PRACTICE AND PROCEDURE 2nd Edition. T.A.O. TUGBIYELE Esq. stated as follows:
“3. The Plaintiff must set out in his statement of claim the actual words of the libel. This is to enable the Court to decide whether there is a ground of action. ONDO STATE HOUSING CORP. VS. SHITTU (1994) 1 NWLR (PT. 321) 476 AT 483 (CA); NEPA VS. INAMETI (2002) FWLR (PT. 130) 1685 AT 1717- 1718 (SC).
In an action for libel, the Plaintiff must of necessity rely on the precise words alleged to be defamatory. The Court will upon the perusal of the actual words complained of; determine whether or not the words complained of are material facts necessary for the prosecution of the Plaintiffs case. OKPOZO VS. BENDEL NEWSPAPER COR. (1990) 5 NWLR (PT. 153) 652 AT 658 (CA); OKAFOR VS IKEANYI (1979) 3-4 SC 99 AT 104; 1979 ALL NLR 65; NINGI VS. FBN PLC (1996) 3 NWLR (PT. 435) 220 AT 235 (CA).
4. The libellous passage only is to be set out in the statement of claim.
5. In an action for slander, the actual words spoken must be set out verbatim in order that

the defendant may know the certainty of the charge, and may be able to shape his defence.
Where the slanderous words are as a result of question and answer, both the question must be set out. If the slander was conveyed by signs or gestures, such must be described with an innuendo as to their meaning”.
It follows therefore that in a defamation action, the claimant must set out in his statement of claim the exact words which he alleges are defamatory of him. See ONYEJIKE VS. ANYASOR (1992) 1 NWLR (PT. 218) 437; AFRIBANK (NIG) PLC VS. ONYIMA (2004) 2 NWLR (PT. 858) 654 AND OKOLIE VS. MARINHO (2006) 15 NWLR (PT. 1002) 316.
Upon a careful examination of paragraph 3 of the claimant’s Reply to statement of defence I am of the view that the actual words allegedly uttered by the Respondent are not quoted therein as they were said.
The content of the said paragraph is a report of the decision of the Alake in council complaints committee. What the law requires to be pleaded is the alleged defamatory words uttered by the defendant. The contents of paragraph 3 (supra) do not satisfy the requirement of the law and I so hold.

Learned Counsel to the Appellant argued further that the judgment of the Customary Arbitration tendered in evidence and admitted as Exhibit C1 which was attached to his pleadings formed part of the pleadings. He submitted that Exhibit C1 contains the words complained about and since it was exhibited to the pleadings, the requirement of the law that the words complained about should be pleaded by the Claimant has been satisfied. I agree with Counsel that the law is settled that where a document is referred to in a pleading it forms part of the pleading and the Court may look at them. See MARINE MANAGEMENT ASSOCIATES INC VS. NATIONAL MARITIME AUTHORITY (2012) 18 NWLR (PT. 1333) 506; SIFAX (NIG) LIMITED VS. MIGFO (NIG) LIMITED (2018) 9 NWLR (PT. 1623) 139; BANQUE GENEVOISE DE COMMERCE ET DE CREDIT VS. CIA MAR DI ISOLA SPETSAI LTD (1962) LPELR- 25038 (SC).
Exhibit C1 is at pages 14 to 15 of the Record of Appeal. It is referred to in paragraph 14 of the Appellant’s Amended Statement of Claim which reads as follows:
“14. The claimant avers that he informed the Committee after the admission of the defendant that he is not satisfied with only the

admission alone but that the defendant must give him a written undertaken that the allegation he levelled against him was false which the committee equally upheld (Copy of the Judgment of the committee dated the 11th of June, 2009 is hereby pleaded.”
While Exhibit C1 forms part of the pleadings it is further the law that where a document is pleaded to establish a particular fact, it can only be used to establish that fact alone. The Court cannot use such document for any other purpose other than that intended by the parties as pleaded. See OMEGA BANK NIGERIA PLC VS. O.B.C. LIMITED (2005) 8 NWLR (PT. 928) 547; ISHOLA VS. UNION BANK OF NIGERIA LIMITED (2005) 6 NWLR (PT. 922)422 AND NTEOGWUILE VS. OTUO (2001) 16 NWLR (PT. 738)58.
The purpose for which Exhibit C1 was pleaded is clearly stated in paragraph 14 of the Amended Statement of Claim. It is to establish the fact that the Alake in Council Complaints Committee upheld the Appellant’s application that the Respondent must give him a written undertaken and no more. It is not part of the duties of the lower Court and indeed this Court to begin to comb through Exhibit C1 to find out whether the

alleged defamatory words are contained therein in exact terms after the Appellant has stated clearly the purpose it is intended.
It is manifestly clear from the Amended Statement of Claim filed by the Appellant that he failed to set out the defamatory words allegedly uttered by the Respondent in its exact terms in his pleadings as required by law. It is trite that a Claimant in an action for defamation shall set out the words complained about in his pleadings, failing which his action is liable to be dismissed.

The issue of the language in which the statement was made was also an issue before the lower Court. There is evidence that the alleged statement was made in Yoruba language before the Alake in Council. The Appellant admitted that the alleged defamatory words were made in Yoruba language. In response to questions put to him under cross examination he stated as follows:
“…The alleged defamatory words uttered by the defendant were made in Yoruba Language, particularly in Egba dialect. Admits that many people there who heard them were also of Egba dialect. The proceedings of that day were conducted in Egba dialect. Admits that

those who were there to conduct proceedings on that day were elderly people, adding that they had high sense of integrity. Admits that their judgment was read in Yoruba language.”

original or vice versa. The pleader should include an allegation to the effect that the translation is a true interpretation of the foreign language used”.
In the instant appeal, the defamatory words were not set out in the Yoruba Egba dialect they were made in the Appellant’s statement of claim neither was the English translation. The Appellant’s action before the lower Court was therefore not properly constituted and did not disclose a reasonable cause of action.
What then is a reasonable cause of action? A reasonable cause of action means a cause of action with some chance of success when only the allegations in the Statement of Claim are considered. Where the Statement of Claim of a Claimant discloses no reasonable cause of action and the Court is satisfied that no amendment no matter however ingenious will cure the defect, the Statement of Claim will be struck out and the action dismissed. See IYEKE VS. PETROLEUM TRAINING INSTITUTE (2019) 2 NWLR (PT. 1656) 217; BARBUS AND CO. (NIG) LTD VS. OKAFOR-UDEJI (2018) 11 NWLR (PT. 1630) 298 AND THOMAS VS. OLUFOSOYE (1986) 1 NWLR (PT. 18)669.
The Appellant’s Amended Statement of

Claim upon which his case was fought at the lower Court did not disclose a reasonable cause of action. The Amended Statement of Claim does not contain the alleged defamatory words both in the original language they were spoken as well as the English translation. His case was thus still born. It was dead on arrival. It was incurably bad. It cannot be resuscitated under any guise. The statement of claim having run foul of the law is liable to be struck out and the action dismissed. The lower Court was right when it did so.

The lower Court in the process of evaluating the evidence placed before it by the Appellant as Claimant also held he (the Appellant) did not call any witness to prove publication of the libelous matter.
Now, every person has a right to the protection of his good name and reputation. It is trite that the tort of defamation is established only where there is publication of the defamatory words to a third person. Publication is an essential ingredient of the tort of defamation. The published words must be such that tend to lower the person defamed in the estimation of right thinking members of the society or expose him to hatred,

contempt, ridicule or injure his reputation in his office, trade or profession. The publication to the third person other than the claimant must have been without lawful justification or excuse.

In a bid to prove his case before the lower Court, the Appellant testified on his own behalf and called one witness who testified as CW2. The Appellant’s evidence is that on 3rd of February 2009, the Respondent made a complaint against him before the Alake in Council Complaints Committee. He said the Respondent alleged that he (the Appellant) sent three hoodlums to his palace to kidnap and kill him. He said by the words uttered by the Respondent before the Alake in Council Complaints in Council about him, his reputation was lowered in the eyes of right thinking members of the society and that the words had a negative effect on his ambition to contest election into the office of Chairman Obafemi/Owode Local Government of Ogun State.

The only witness of the Appellant who testified as CW2 is Olajide Akindipe. He adopted his witness statement on oath sworn to on 22nd August 2011 as his oral testimony before the Court and said no more.

His statement on oath is at page 12 of the record. His statement which he adopted as his oral evidence is reproduced herebelow:
“I, OLAJIDE AKINDIPE, Christain, Male, Citizen of Nigeria of No1., Orimerumnu-Pakuro Road, Baale Palace, Orimerumnu, Owode/Obafemi Ogun State do hereby make oath and state as follows:
1. That I am a brother to the Claimant in this matter that by virtue of this I am familiar with the facts of this matter.
2. That on the 10th of February 2010, I and one of my other brother followed the Claimant to Adesanolu Village.
3. That on this said date, we were attacked by some unknown youths who were shouting and abusing the Claimant that he has visited the Village in order to kidnap and kill their Community Leader i. e. Baale of Adesanolu.
4. That on the said date I sustained injuries on the head as I was hit with a plank by one of them.
5. That the Claimant was also beaten and was wounded.
6. That my second brother who also followed us was seriously injured that we had to escape from them to avoid being lynched by them.
7. That I depose to this affidavit in good faith.”

Above is all the evidence of CW2

before the lower Court. CW2 did not say the Respondent uttered the words complained about concerning the Appellant in his presence. He also did not give any evidence of what impression the words had on him concerning the Appellant or that the words lowered the reputation of the Appellant before him. His evidence did not in any way suggest that there was any publication of the alleged words. It is not his evidence that the words were spoken in his presence. The trial judge was therefore right when he held as follows at page 232 of the record:
“The Claimant has thus failed to prove that the words were published to a third person, and that the words were defamatory of him either in their natural meaning or by reason of an innuendo, and this is fatal to his case.”

The reliefs sought by the Appellant before the lower Court has been set out in the earlier part of this Judgment. I shall do so again for ease of reference: They are:
1. Declaration that the malicious complaint made by the Defendant at the Alake in Council Complaint Committee at Ake is defamatory to the good reputation of the Claimant.
2. A Declaration that the defaming

statement caused injury to the Claimant’s political ambition and other status the Claimant has acquired over the years.
3. The sum of N25,000,000 (Twenty Five Million Naira) being general damages caused the Claimant as a result of false accusation and malicious statement made at Alake in Council Complaint Committee in Ake Abeokuta.
4. The sum of N50,000,000 (Fifty Million Naira) being special damage for the act of Defamation committed by the Defendant.

Reliefs (a) and (b) are declaratory reliefs which the law requires the Appellant must prove by credible evidence. They are not grantable based on the admission of the defendant. See OSUJI VS. EKEOCHA (2009) 16 NWLR (PT. 1166) 81; CENTRAL BANK OF NIGERIA VS. AMAO (2010) 16 NWLR (PT. 1219) 271; DANTATA VS. MOHAMMED (2000) 7 NWLR (PT. 664)176.

Moreover, the Appellant’s case is that he was defamed by the Respondent. His pleadings at the lower Court is completely devoid of the essential elements the law requires to be pleaded in such action. The words uttered which the Appellant found defamatory were not quoted in the statement of claim. His case is fundamentally defective and

incurable. Nothing can be done about it. The foundation is faulty. There is no pedestal to stand on. It must therefore crumble. The inevitable outcome of his case is dismissal. The Appellant is also not entitled to the consequential damages claimed. The lower Court was therefore right when it dismissed his case in its entirety. I resolve the sole issue in this Appeal against the Appellant.

In conclusion I find this appeal completely devoid of merit and it is accordingly dismissed. I affirm the Judgment of the Ogun State High Court sitting in Abeokuta delivered on 29th of October 2013 in Suit No. AB/202/2011.
The Appellant shall pay to the Respondent One Hundred Thousand Naira (N100,000) as cost.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my Lord FOLASADE AYODEJI OJO, JCA, just delivered. It is a well-considered Judgment for which I have nothing to add.
I am also of the view that the appeal lacks merit and it is dismissed by me.
I abide by the consequential orders including order as to costs.

HARUNA SIMON TSAMMANI, J.C.A.: I read in advance the judgment delivered by my learned brother, Folasade

Ayodeji Ojo, JCA.

The claim of the Appellant as Claimant before the trial Court was predicated on the tort of defamation. In law, a defamatory Statement is that which lowers the Plaintiff in the estimation of right thinking members of the society generally; or which exposes him to hatred, contempt or ridicule; or which causes other persons to shun or avoid; or discredit him in his office, trade or profession; or injure his financial credit. See Labati v. Badmus (2007) 1NWLR (pt.1014) 199 and NITEL v Tugbiyele (2005) 3 NWLR (pt.912) 334. That being so, to proof defamation, the Plaintiff must specifically plead the exact words used by the Defendant, and proceed to lead credible evidence in proof thereof. See Edem v. Orpheo (Nig) Ltd & Anor (2003) 13 NWLR (pt. 838) 537 and African Continental Bank Limited v. Apugo (2001) LPELR-24857 (SC).
In the instant case nowhere in the entire pleadings of the Plaintiff/Claimant were the exact words used pleaded. What is required to be pleaded is the “exact words” and not a paraphrase of those words. I therefore agree with the learned trial judge that the Appellant failed to establish a cause of action of

defamation as required by law.

I therefore, for the above reasons, and the detailed reasons contained in the lead judgment, I agree that this appeal is lacking in merit. It is accordingly dismissed.
I abide by the order as to costs.

Appearances:

Adekunle Ojo with him, M. T. Aiyegbusi For Appellant(s)

Femi Ewedemi with him, Ayodele Fomodu For Respondent(s)