AFUDE v. MELA (2020)

AFUDE v. MELA

(2020)LCN/14698(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Thursday, October 15, 2020

CA/G/188/2018

RATIO

CIVIL ACTION: WHAT CIVIL MATTERS FOUGHT ON

EVIDENCE: STANDARD AND ONUS OF PROOF OF A CLAIMANT’S CASE IN CIVIL MATTERS

A Claimant’s case is established on the preponderance of evidence or the balance of probabilities. See the cases of YAKUBU V. JAUROYEL (2005) ALL FWLR PT. (283) 184 and SUNDAY OKORIE V. IGNATIUS UNAKALAMBA & ANOR. (2013) LPELR-22508 CA 2011. It is elementary that he who asserts must prove. Therefore, the case of the Claimant will fail, where credible and cogent evidence is not presented before the Court in support of his claims and assertions. The onus of proof on the Claimant will shift to the defending party only where he has proved his claim on preponderance of evidence as stated. A party cannot rely on the weakness of the opposing party in order to succeed in his claim. See the cases of LONGE V. FBN PLC. (2006) 3 NWLR PT. 967, DAODU V. NNPC (1998) 2 NWLR PT. 538 P. 355, KALA V. POTISKUM (1998) 3 NWLR PT. 540 P.1, IMAM V. SHERIFF (2005) 4 NWLR PT. (914) P. 80, ELIAS V. OMO-BARE (1982) 2 SC P. 25 and AGBI V. OGBEH (2006) 11 NWLR (PT.990) P. 65. PER WILLIAMS-DAWODU, J.C.A.

DEFAMATION: NATURE OF THE TORT OF DEFAMATION

The tort of defamation is also known as libel. When the defamatory words are communicated orally, it is slander and when they are reduced into writing, permanent form, it is referred to as libel. What is common to both is that the defamatory words must have been published to a third party, who by law, was not entitled or privileged to hear or receive the offending words which are damaging to the reputation of the Claimant. See the cases of ASAA V. OJAH 2015 LPELR-CA/OW/325/2011, DAURA V.DANHAUWA (2011) ALL FWLR (PT. 558) 991, MAMMAN V. SALAUDEEN 2006 ALL FWLR PT. 298 469, INDEPENDENT NEWSPAPER LTD. V. IDIONG (2012) ALL FWLR (PT. 647) 677 and VANGUARD MEDIA LTD. V. OLAFISOYE (2012) ALL FWLR PT. 634 97.
It needs be clearly stated as opposed to the position of the learned Court below that, libel is actionable without the need to prove actual damages, actionable per se therefore, unlike slander, which, except in certain cases is only actionable on proof of particular damage, not actionable per se. See the case of DAURA V. DANHAUWA supra. PER WILLIAMS-DAWODU, J.C.A.
LIBEL: ELEMENTS OF PROOF OF LIBEL

Libel is a statement in written form which causes a person to be exposed to hatred, ridicule or contempt, to be shunned or avoided and be lowered in the estimation of right thinking people in the society or disparaged in his profession or trade. To succeed in an action for libel the following five (5) fundamental elements must be established:
1. That there is the publication of the material complained of by the Defendant, the Respondent herein.
2. That the publication refers to no other person but the Claimant, the Appellant herein, conclusively.
3. That the publication is defamatory of the Clamant/Appellant herein.
4. The words or statement were false or untrue.
5. There was no justifiable legal ground for the publication of the words or statement.
See the cases of SKYE BANK PLC. V. AKINPELU (2010) LPELR-SC 3073, EMMANUEL BEKEE & ORS V. FRIDAY EBOM BEKEE (2012) LPELR-21270 CA, LABATI V. BADMUS (2006) 1 NWLR 1041 199, NEPA V. INAMETI (2002) FWLR 130 (1695) and ILOABACHIE V. ILOABACHIE (2005) 13 NWLR 943 695. PER WILLIAMS-DAWODU, J.C.A.

DEFAMATION: DETERMINATION OF WHETHER A WORD IS DEFAMATORY

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

LUKA AFUDE APPELANT(S)

And

KILANG MELA RESPONDENT(S)

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of the High Court of Gombe State delivered by Hon. Justice H. H. Kereng on October 11th 2017, wherein the Court found against the Appellant (the Plaintiff at the Court below) and therefore held that he failed to prove his case and dismissed the case in its entirety.

The following were the reliefs sought by the Appellant at the Court below:
a. A declaration (sic) the defendant has no right to excommunicate him from Komta Village of Billiri Local Government of Gombe.
b. A declaration that the letter written of and concerning the plaintiff to the Area Court Judge Tangale-Waja Civic Area Court on 8/1/2016 and copied the DPO, SSS, TCDA, Billiri Local Government Council Chairman and Mai-Tangale was defamatory of the plaintiff and in bad faith.
c. A declaration that the Defendant has no such powers as he sought to exercise under the Constitution of the Federal Republic of Nigeria 1999 as amended in the letter dated 8/1/2016.
d. N10,000,000.00k damages for libel.
e. N3,000,000.00k exemplary damages.

N2,000,000.00k general damages including cost of the action.A brief gist of the facts that culminated into the suit of the Appellant and the instant appeal from the printed Record before this Court is as follows:
The Appellant is a Civil Servant and a resident of Komta Village in Billiri Local Government Area of Gombe State and the Respondent is a traditional title holder in Kojen Tangale and the Village Head of Komta, with whom the Appellant contested the stool of the Village head but lost. The Respondent wrote a letter on 22/12/2015 to the Area Court in respect of the Appellant’s case to have it settle out of Court at his palace. The case was on land between the Appellant and one Jauro Yusuf Katsina. The Appellant insisted that the case should continue at the Court and refused to attend any meeting with the Village Head as chair on the issue. The Respondent then wrote to return the matter back to the Area Court Judge on 8/1/2016 and copied the Divisional Police Officer Billiri, State Security Service Department Billiri, Tangale Community Development President and the Chairman Billiri Local Government Area and Mai-Tangale. The case of the

Appellant is that, the letter of 8/1/2016 to the Area Court was defamatory and in bad faith.

The Respondent on the other hand pleaded justification of the contents and as qualified information. The Respondent in his case denied that he contested the stool with the Appellant but with two other persons and that as the Head of Komta and all other traditional title holders, they are enjoined by his Royal Highness the Mai Tangale to always settle matters amicably except criminal matters. It was for that reason that he applied to the Area Court to allow the matter to be settled amicably out of Court before the Village Head which the Court obliged. The Community’s letter to the Court was signed by the Respondent and stated that the Appellant failed to participate in the meetings called by the Community Committee set up for amicable settlement of the matter. The Appellant’s reaction was the institution of the action for libel at the Court below and the claim for damages. As earlier mentioned, the Court in its wisdom dismissed the Appellant’s case.

The Appellant therefore proceeded to this Court with his Notice of Appeal dated December 7th

2017, filed December 21st 2017, together with nine (9) Grounds of appeal.

RELIEF BEING SOUGHT:
An order of this Honourable Court setting aside the whole of the Judgment of the Gombe State High Court in Suit No. GM/64/2016 delivered on 11/10/2017 and an order granting the claim of the Appellant against the Respondent before the lower Court.

In compliance with the Rules of this Court, parties filed and exchanged their briefs of argument. The Appellant’s brief settled by Chief Caleb Ubale Esq. dated December 19th 2018 was filed December 20th 2018. The Respondent’s dated January 23rd 2019, filed January 25th 2019 was settled by Bulus K. Maori Esq. and the Appellant’s Reply brief dated October 18th 2019, filed October 21st 2019, which was deemed as properly filed and served on July 20th 2020, was settled by the Chief Ubale Esq.

On July 20th 2020, Chief Caleb Ubale, at the hearing of this appeal, adopted the Appellant’s brief as well as the Reply to the Respondent’s brief and urged that the appeal be allowed. Mr. Maori on the other hand, adopted the Respondent’s brief and urged that the appeal be dismissed. The

appeal was thereafter reserved for judgment.

ISSUES SUBMITTED BY THE PARTIES FOR DETERMINATION
APPELLANT’S ISSUES
1. Whether the Defendant as Village Head has the right to excommunicate the Plaintiff from Komta Community under any guise on a dispute over title to land with another person (Ground one).
2. Whether or not the learned trial Judge did not rely on matters that are outside pleadings and evidence in favour of the Respondent which be clouded his reasoning (Grounds 2 and 3).
3. Whether or not the Plaintiff (sic) Appellant (addition mine) had proved defamation by libel against the Defendant (sic) Respondent (addition mine) through the letter dated 8/1/2016 (Grounds 4,5,6,7,8 and 9).

The Respondent adopted the 1st and 3rd Issues by the Appellant as follows:
I. Whether the Defendant (sic) Respondent (addition mine) as village head has the right to excommunicate the Plaintiff (sic) Appellant (addition mine) from Komta Community under any guise on a dispute over title to land with another person.
II. Whether or not the Plaintiff (sic) Appellant (addition mine) had proved defamation by libel against the Defendant

(sic) Respondent (addition mine) through the letter dated 8/1/2016.

Carefully considering afore stated issues by both sides, one finds that adopting only Issues 1 and 3 of the Appellant’s as this Court is empowered so to do will still bring about a fair and just determination of this appeal. Issues 1 and 3 as submitted by the Appellant are consequently adopted for the determination of this appeal.

SUBMISSION ON BEHALF OF THE APPELLANT
Chief Ubale for the Appellant submitted that each of the Appellant’s reliefs is distinct and can stand on its own. He argued that, the Respondent did not call in evidence any of the Community elders he claimed mandated him to write the letter of 8/1/2016, in contention, not even the co-signatory of the letter and that, by the provision of Section 167 (d) of the Evidence Act 2011, there was no evidence in his support. In support he cited the case of ZUBAIRU V. THE STATE (2015) 16 NWLR PT. 1486 504. He contended that the letters of dissatisfaction by the Komta Community Development Association (KCDA) dated 7/10/2003, 8/10/2003 AND 8/11/2003 being Exhibits D, D1 and D2 respectively cannot serve as

justification for his action as the Chairman of the Association is different from the Village Head.

He submitted that it was wrong for the Court to ignore Relief 24 (a) and (c) based on the Constitutional provisional and not make any pronouncement thereon.

He contended that the Respondent failed to call as witness any of the District Heads to substantiate his defence on the charge by Mai Tangale, that all the various heads should try to settle matters out of Court for the Community, neither did he present the book titled Tangale Native Laws and Customs. That the presumption is that, such settlements out of Court should be before the matters go to Court and the Mai Tangale’s charge cannot override the Constitution of Nigeria. He cited in support the cases of IDRIS V. AGUMAGU (2015) 15 NWLR PT. 1477 P. 441 and AMADI V. NNPC (2000) 10 NWLR PT. 674 P. 474. He submitted that, the finding of the Court regarding the role of the Respondent with regard to settlement of disputes among his subjects and preservation of public peace is perverse in the absence of any witness to substantiate same and cited in support the case of ABDULLAHI V. FRN (2017) 12 SCNJ 182.

The learned Counsel argued that, in so far as the Respondent from the inception of the case failed to deny all the documents pleaded and tendered by the Appellant, the case of the Appellant was established as it is basically a documentary matter. He further argued that, the Court was wrong to have found that the Appellant offended an established binding tradition and practice of sanctioning in spite of the contrary evidence before it to the effect that, the Komta Development Association and the Respondent are one and the same. That tradition is not based on a singular issue but a practice over a long time.

The learned Counsel submitted that, the Court was wrong to hold that the Appellant failed to prove the injury he suffered as a result of his excommunication, expulsion or suspension by the Komta Community as libel can be sustained without proof of actual injury as in the instant appeal based on the fact that the Appellant is an important personality in the Community. In support he cited the case of EKANEM ITA V. FETUGO (1991) NWLR PT. 204, 474. He contended that the Appellant in his pleadings complied with the requirement stated by the

Apex Court in the case of GUARDIAN NEWSPAPER LTD. & 1 OR V. REV. PASTOR C. I. AJEH 2011 4 SCNJ 152 as he pleaded the letters which are the material facts in support of his case and that he is entitled to an award of damages. He submitted that, though the cases of ALAWIYE V.OGUNSANYA (2004) 4 NWLR PT. 864- 486 and NEPA V. INAMETI (2002) FWLR PT. 130,1695 are good law but, they are not on all fours with the instant appeal. He contended that, the Appellant, refusing to attend the Community meetings for settlement out of Court, was only acting within the confines of the law and his constitutional right to own property and having proved his case on the preponderance of evidence, was entitled to judgment. In support he cited the cases of ALECHENU V. UNIVERSITY OF JOS (2015) 1 NWLR PT. (1440) 333, ODOFIN V. MOGAJI (1978) 4 SC 91 and AKPAGHER V. GBUNGU (2015) 1 NWLR PT. (1440) 209.

In conclusion, urged that the judgment be set aside and all the reliefs of the Appellant be granted.

SUBMISSION ON BEHALF OF THE RESPONDENT
The learned Counsel for the Respondent, Mr. Bulus, Esq. submitted in response that, the Appellant was once the Chairman of the KCDA before Komta got

a head and that even with the Village head, the KCDA continued to function under its constitution which binds all the community members. That, the Appellant as its former Chairman excommunicated not less than three (3) people, Dauda, Dr. Tekdek and Rev. Elisha Sobok under its Constitution. That, the excommunication was done by three (3) groups with authority under the said Constitution, the KCDA, the Tangale Community Development Association (TCDA), the Traditional Council of Komta Chiefdom and the three (3) bodies jointly wrote the letter of 8/1/2016. He submitted that, the Appellant was excommunicated because as a traditional title holder of Komta, he refused to appear before the elected village head and the selected elders of Komta, thereby refusing to submit to the authority, the same with which he served as Chairman. He asserted that, there was room for an apology and there would have been no reason for the excommunication, but the Appellant rushed to Court instead. He submitted that, in spite of the letter and the period of five (5) months of its service on the Appellant to the date of filing his writ, 10/6/2016, the Appellant failed to show that he was

forced out of the community. He submitted that the Appellant is not entitled to damages as he failed to show any loss or discomfort.

The learned Counsel contended that, the Appellant failed to establish that the words complained about were defamatory or conveyed defamatory imputation and the publication as false. He submitted that, the Appellant failed to plead the libelous words verbatim which the law requires and cited the case of OLANIYI V. ELERO (2007) 34 WRN P. 32 and CHIEF SON OKAFOR V. D. O. IKEANYI & ORS (1979) 3-4 SC 99. Therefore, the Appellant cannot complain that his case was dismissed, he added. That, all evidence adduced on the un-pleaded allegation of defamation was to no issue and in support, cited the case of MACFOY V. UAC (2000) N15 WRN 185, that it was not sufficient that the letter, Exhibit A1 (A) was attached or pleaded in the claims. He cited in support the case of GUARDIAN NEWSPAPER LTD. & 1 OR. V. REV. PASTOR C. I. AJEH supra. He argued that nothing extraneous was imported into the case and that the Appellant was not denied access to Court. In conclusion, he urged that the appeal be dismissed with substantial costs.

THE COURT
I have very carefully considered the Record together with all the briefs of argument for both sides and having so very carefully done, I now proceed with the determination of Issues 1 and 3 by the Appellant as adopted, commencing with Issue 3. For ease of reference, I shall reproduce same hereunder as follows:
ISSUE 3
Whether or not the Plaintiff (sic) Appellant (addition mine) had proved defamation by libel against the Defendant (sic) Respondent (addition mine) through the letter dated 8/1/2016 (Grounds 4,5,6,7,8 and 9).

Civil matters are fought on the basis of issues joined on the pleadings and such other matters or objections which may be raised and canvassed. See the cases of OYEKANMI V. NEPA (2000) 15 NWLR PT. (690) 414 and NNONYE V. ANYICHIE (2005) 2 NWLR PT. A Claimant’s case is established on the preponderance of evidence or the balance of probabilities. See the cases of YAKUBU V. JAUROYEL (2005) ALL FWLR PT. (283) 184 and SUNDAY OKORIE V. IGNATIUS UNAKALAMBA & ANOR. (2013) LPELR-22508 CA 2011. It is elementary that he who asserts must prove. Therefore, the case of the Claimant will fail, where credible and cogent evidence is not

presented before the Court in support of his claims and assertions. The onus of proof on the Claimant will shift to the defending party only where he has proved his claim on preponderance of evidence as stated. A party cannot rely on the weakness of the opposing party in order to succeed in his claim. See the cases of LONGE V. FBN PLC. (2006) 3 NWLR PT. 967, DAODU V. NNPC (1998) 2 NWLR PT. 538 P. 355, KALA V. POTISKUM (1998) 3 NWLR PT. 540 P.1, IMAM V. SHERIFF (2005) 4 NWLR PT. (914) P. 80, ELIAS V. OMO-BARE (1982) 2 SC P. 25 and AGBI V. OGBEH (2006) 11 NWLR (PT.990) P. 65. From the foregoing, it is pertinent that, the Appellant must prove his case at the Court below on the preponderance of evidence to establish his case. I shall therefore turn to the decision of the Court below for its findings in that regard.

The learned Court on whether or not the tort of defamation was proved considered in particular, paragraphs 9,10,19,21,22 and 24 of the Appellant’s Statement of Claim and adopted as his statement on oath, paragraphs 1 and 2 of his reply to the Respondent’s statement of defence and paragraphs 11 and 12 of his additional statement on oath. The defamatory

words according to the Appellant were contained in the letter, Exhibit A1 (A) by the Respondent to the Area Court Judge Tangale-Waja on 8/1/16 which was copied to the DPO, SSS, TCDA, Billiri Local Government Council Chairman and HRH Mai Tangale. It found and correctly in my considered view and humbly that, Exhibit A1 (A) even as admitted by the Respondent that, the letter, publication, was in respect of Appellant. The first two ingredients for proof of defamation, that the defendant published in a permanent form a statement which is in reference to the Claimant were found by the Court. It therefore stated thus:
”On this issue of publication of Exhibit A1 (A) and reference to the plaintiff, the defendant in both his statement of defence and adopted statement on oath (evidence in chief) together with his evidence under cross-examination did not deny that he published Exhibit A1 (A) and copied the persons mentioned by the plaintiff. Equally the defendant did not deny that the said Exhibit A1 (A) referred to the plaintiff … I hold that the plaintiff has proved by evidence that there was publication of Exhibit A1 (A) and that its content

referred to the plaintiff…”
See pages 181 and 182 of the Record.

It found the absence of stating the actual words complained of by the Appellant fatal as canvassed by the learned Counsel for the Respondent and stated on page 184 as follows in that regard:
”This is because it is now of necessity and trite that in an action for defamation either libel or slander, that the actual words complained of and not merely their substance must be set out verbatim in the statement of claim. It is on the examination of the actual words complained of as pleaded that this Court will determine whether or not the words convey defamatory meaning. The plaintiff did not set out verbatim the exact words in Exhibit A1 (A) that he considers defamatory. He has no excuse for the failure. His counsel’s argument that because he has pleaded and tendered Exhibit A1 (A), he need not set out exactly the defamatory words in the said exhibits is not the correct position of the law.”

It further found to the detriment of the Appellant that he failed to set out the words complained about in the same language in the Appellant’s pleading

and a liberal translation of it to English language as they were in Hausa language. It posited consequently thus on page 185 of the Record:
”Thus as noted earlier this is another hurdle which the plaintiff failed to cross in this his claim for defamation against the defendant.”

As for the ingredient, whether the statement conveys defamatory meaning to those it was published, on page 187 of the Record, the Court found as follows:
”…A careful or casual perusal of the testimonies of these four (4) plaintiff’s witnesses do not contain the slightest evidence whatsoever about the plaintiff’s claim that Exhibit A1 (A) written by the defendant has defamed him. None of these four plaintiff’s witnesses gave evidence of his impression of the plaintiff to the effect that as a result of Exhibit A1 (A) the alleged defamatory libelous letter, he does not any longer hold Luka Afude in the same high esteem as he used to do…”

Indeed, one equally found from the thorough reading of the Record that none of the Appellant’s witnesses alluded to or mentioned anything regarding the issue of defamation or of their impression

of the Appellant. See pages 117 to 123 of the Record. It therefore came to the following conclusion on page 188 of the Record:
”…Therefore I have no hesitation or difficulty in coming to the conclusion that Mr. LUKA AFUDE woefully failed to substantiate his claim that the content of Exhibit A1 (A) written by Mr. Kilang Mela has defamed his character/reputation.’’
Consequently, the judgment which is being appealed against.

clearly stated as opposed to the position of the learned Court below that, libel is actionable without the need to prove actual damages, actionable per se therefore, unlike slander, which, except in certain cases is only actionable on proof of particular damage, not actionable per se. See the case of DAURA V. DANHAUWA supra.
The grouse of the Appellant is that the Respondent by sending/publishing Exhibit A1 (A), letter, to certain persons, defamed him, that the words therein were defamatory of his person. Therefore, Exhibit A1 (A) being in a permanent form constituted libel. Other permanent forms are, print, photograph, carving, statute or carton. See the cases of ASAA V. OJAH supra and DAURA V. DANHAUWA supra. Libel is a statement in written form which causes a person to be exposed to hatred, ridicule or contempt, to be shunned or avoided and be lowered in the estimation of right thinking people in the society or disparaged in his profession or trade. To succeed in an action for libel the following five (5) fundamental elements must be established:
1. That there is the publication of the material complained of by the Defendant, the Respondent

herein.
2. That the publication refers to no other person but the Claimant, the Appellant herein, conclusively.
3. That the publication is defamatory of the Clamant/Appellant herein.
4. The words or statement were false or untrue.
5. There was no justifiable legal ground for the publication of the words or statement.
See the cases of SKYE BANK PLC. V. AKINPELU (2010) LPELR-SC 3073, EMMANUEL BEKEE & ORS V. FRIDAY EBOM BEKEE (2012) LPELR-21270 CA, LABATI V. BADMUS (2006) 1 NWLR 1041 199, NEPA V. INAMETI (2002) FWLR 130 (1695) and ILOABACHIE V. ILOABACHIE (2005) 13 NWLR 943 695.

The Court found ingredients 1 and 2. One then proceeds to ask a question, pertinent, at this stage, whether or not the words in Exhibit A1 (A) were defamatory. The relevant portion, paragraphs 9, 10, 19, 21, 22 and 24 of the Appellant’s statement on oath and paragraphs 1 and 2 of his reply to the statement of defence and paragraphs 11 and 12 of his additional statement on oath are hereunder reproduced for ease of reference:
9. That on 2/01/2016 the Defendant wrote another letter to the Area Court Judge Tangale Waja Civil Area Court Billiri through

the registrar signed by the Defendant along with Yila Hassan Nayako (Matokarin Komta) and Chairman TCDA Komta Branch, and Daniel Mele (Magatakardan Komta) the said letter in Hausa is pleaded along with the English translated copy.
10. That the Defendant and his co writers of the letter of 8/01/2016 copied His Royal Highness Dr. Abdu Buba Maisheru II (JP) OON the 15th Mai Tangale, the Chairman Billiri Local Government Council, the Divisional Police Officer (DPO) Billiri Divisional Police Headquarters Billiri LGA, the State Security Service (SSS) Billiri Local Government, The Tangale Community Development Association (TCDA) National Headquarters Billiri and myself for whatever reason.
19. That my character had been defamed by the Defendant through libel and the letter of 8/01/2016 is libelous of me.
21. That as a result of the letter of 8/01/2016 copied to the State Security Service department of Billiri Local Government I was invited to the office for questioning on various and sundry issues.
22. That because the letter portrayed me as a security threat to Komta residents the SSS Billiri told me I am under watch and should be careful in what

I do which means I cannot exercise my constitutional right to approach the Court over our family property.
24. That I am aggrieved by the act of the Defendant and claim the relief in my statement of claim.
See pages 8 and 9 of the Record.

Appellant’s Reply to the Statement of Defence
1. The Plaintiff in reply to Paragraph 3(b) of the defence states that the Defendant had no Justification in copying a letter meant for an Area Court to SSS, DPO, TCDA, Billiri Local Government Chairman and the Mai Tangale.
2. The aim of the copy to these agencies was to disparage the Plaintiff in the eye of right thinking members of the society and not justified at all.
See page 50 of the Record.

Appellant’s Additional Statement on oath
11. That the Defendant is answerable only to Mai Tangale and has no business copying the letter complained of to SSS, DPO, Local Government Chairman and Tangale Community Development Association.
12. That the letter was to disparage me before right thinking members of the Society and portray me as a defiant in the Community.
See page 62 of the Record. Exhibit A1 (A) is contained on

pages 14 -22 the English version and 23 -32 of the Record, the Hausa version. It needs be stated that the Appellant failed in his pleading to state specifically the offending words in the letter, though he pleaded the letter.

To determine whether or not a word is defamatory, there is need to consider what meaning it conveys to the ordinary person, whether a reasonable man would likely understand it in a libelous sense. See the cases of AGBANELO V. U B N LTD. (2000) 7NWLR (PT.666) 534 and OKAFOR V. IKEANYI (1979) LPELR-SC 133/1976. The onus was squarely on the Appellant to establish that his reputation was affected as a result of the publication, the reputation is that which a 3rd party held of the Appellant and not that which he held of himself. Consequently, there must be proof by evidence of a 3rd party of the effect of the publication. Was there any such evidence before the Court in support of the Appellant’s allegation? As afore stated, the Court below in its evaluation of the evidence before it, found none. Carefully reading through the testimonies of the witnesses of the Appellant, from that of PW1, Boyi Yaro on pages 55-56, PW2, Shehu Alkali on

pages 57-58, PW3, Ahmadu Adamu on pages 59-60 and PW4, Kirya Maikanshi on pages 53-54 and pages 117-120 of the Record, one finds as follows; That they all testified on the clans of Komta village to the effect that the Appellant’s clan, the Komut Shiton clan was the first to arrive Komta, therefore, the Appellant is entitled to the village stool. At a point, one wondered whether the issue before the Court was the Appellant’s challenge of the Village stool and his clan’s entitlement thereto. None of the witnesses of the Appellant testified on the effect of the letter published with respect to his reputation. That ingredient is a fundamental one and vital to the proof of libel. One agrees with the Court that, there was no such proof by the Appellant. Consequently, he failed to prove his case on the whole. See the cases of OGBONNAYA V. FBN PLC. (2015) LPELR-CA/L/719/2013, IWUEKE V. IBC (2005) 17 NWLR (PT.955) 447, SKYE BANK V. AKINPELU supra and AROMOLARAN V. AGORO (2014) LPELR -24037 SC 46-47. Having found as in the foregoing paragraphs, one further agrees with the Court below that, it would be sheer academic exercise to consider the issue whether or

not there was malice and qualified privilege with regard to the publication.

The above being the position, Issue 3 is therefore resolved against the Appellant.
I shall now proceed to determine the second Issue which is Issue 1.

ISSUES 1
Whether the Defendant as Village Head has the right to excommunicate the Plaintiff from Komta Community under any guise on a dispute over title to land with another person (Ground one).

Regarding this Issue as found by the Court below, the position of the Appellant is that he is on his own in Komta as his neighbors should not relate with him having been excommunicated. For the Respondent, it is that the Appellant when he was the Chairman of Komta Development Association excommunicated some members of the Community when they refused to tender apology letters which they eventually did and were reabsorbed.

From the Record, one agrees with the following finding of the Court on pages 165-166 of the Record:
“…The evidence adduced on both sides during trial established the fact that Komta community has a recognized and binding tradition or practice of disciplinary measures against its members

who are considered to have offended the community. The evidence on record also shows that such disciplinary measures which include excommunication/suspension/expulsion have been in existence and acknowledged by the community even before the defendant became the village head of Komta… Equally it is not in dispute that when the plaintiff was the chairman of KCDA he supervised and led the ex-communication/suspension or expulsion of DW1…”

The fact of an existing and recognized tradition and workings of the Community in terms of its local/domestic disciplinary measures in respect of its members can be found from the testimonies of both the Appellant and Respondent on pages 19, 50, 61, 126, 129 and 140 of the Record.

The Court found and correctly in my view and humbly, that the Respondent as the village head/traditional ruler has the responsibility of settling disputes among his subjects which evidence was not contradicted. It took notice of Section 9 (1) and (2) of the Gombe State creation of Emirates, Districts, Villages, Wards and Appointment and Deposition of Emirs and Chiefs (amendment) Law 2004.

”Section 9 (1) the Governor may, when the occasion demands and in the public interest by regulation create Emirate, Chiefdom, District, Village or Ward and appoint any person as the Emir, Chief, District Head, Village Head or Ward Head as the case may be
(2). The person so appointed or recognized in accordance with Subsection (1) of this Section shall perform the functions, exercise the powers and enjoy the privileges of an Emir, Chief, District Head, Village Head and Ward Head or relative to the one appointed under Section 8 of this law’’

The disciplinary measure meted out to the Appellant from the Record was not because he failed to allow the Committee set up to settle the land dispute between him and the said Jauro, but as one finds in Exhibit A1, (A) which was not contradicted by the Appellant, it was for his refusal to answer the call of the Committee which he had used during his chairmanship period. See page 19 of the Record.

In going further, there is a need to closely look at the particular word used in Exhibit A1 (A) and that contained in the Appellant’s claim. The word used in item 2 on page 21, Exhibit A1 (A) is ”suspend” is to

”officially stop something for a time, or prevent somebody from doing something for a time’’ as stated in the Oxford Advanced Dictionary, New 8th Edition. To ex-communicate on the other hand is said to be some kind of punishment where the person being punished is no longer a member of a Christian Church as stated in the Blacks Law Dictionary, 9th Edition. In my view and humbly, the word to ex-communicate, was rather wrongly, used as the word contained in the letter was suspension which varies to some extent from the word ex-communication or to ex-communicate. Be that as it may, from the Record, the Appellant failed to present before the Court, evidence that indeed he was excommunicated other than on the paper it was written, that is, the letter, Exhibit A1 (A). As the Court found and correctly, the purport and real meaning of the words, ex-communication and suspension were never effected with respect to the Appellant in Komta in spite of the content of Exhibit A1 (A). The Appellant still resides in Komta village, no evidence to show there was an attempt to force him out, no evidence of being threatened to leave or freely move around

therein. Under cross-examination the Appellant himself as PW5 testified to the effect that, he moves freely within the locality to church and market and his children carry out their activities freely. From the foregoing, one is unable to find any evidence of violation of, or interference with the Appellant’s right as guaranteed under the 1999 Constitution as he presented none. Therefore, the Court stated thus:
“…In essence this Court can safely conclude that notwithstanding Exhibit A1 (A) especially items 1-5 at page 8 the act of the defendant did not deprive the plaintiff of his right to live in Komta village and move freely… In addition to the above the plaintiff did not establish by evidence the disabilities, disadvantages, loss, harm or deprivation he personally suffered as a result of his ex-communication, suspension or expulsion. Paragraph 16 of his adopted statement on oath cannot by any definition be regarded as evidence. Rather it is his interpretation and opinion of items 1-5 at page 8 of Exhibit A1(A) … rather than evidence’’
See page 176 of the Record. From the foregoing, this issue is equally resolved against

the Appellant.

In the result, this appeal fails, cannot be allowed and is hereby accordingly dismissed.

JUMMAI HANNATU SANKEY, J.C.A.: I had the advantage of reading in draft the Judgment just delivered by my learned brother, Williams-Dawodu, JCA.

My Lord has carefully navigated through the facts of the Appeal and the law as relates to the issues of determination and libel placed before the trial Court.

Based on her review of the facts on Record and the applicable Law and decided authorities on the subject, I find that I have to agree with her that the Appellant failed to prove his case to the standard required by law in civil matters, which is on a balance of probabilities. Consequently, he was not entitled to have Judgment given in his favour by the trial Court.

Based on this, I agree that the Appeal lacks merit and deserves to be dismissed, as has been done in the lead Judgment.

JAMES GAMBO ABUNDAGA, J.C.A.: I have been privileged to read the draft of the judgment delivered by my learned brother, E. O. Williams- Dawodu, JCA. The reasoning and conclusions reached by her on the two issues for the determination of the appeal are

unimpeachable. I adopt the said reasoning and conclusion.
However, I shall add my own voice to the reasoning of my lord on the issues.

I start with the issue as to whether the Appellant proved libel against the Respondent. Now, under the law, in an action for libel, the onus is on the Plaintiff to prove the following:
(a) That the defendant published in a permanent form a statement.
(b) That the statement referred to the Plaintiff.
(c) That the statement conveys defamatory meaning to those to whom it was published; and
(d) That the statement was defamatory of the Plaintiff in the sense that:
(i) It lowered him in the estimation of right thinking members of the society; or
(ii) It exposed him to hatred, ridicule or contempt; or
(iii) It injured his financial credit. In other words, for an imputation to be defamatory, it must be proved to have been to the discredit of the plaintiff. See the cases of Dangungu v. Islam & Anor (2014) LPELR-22898 (CA), per Adamu, JCA (Pp.8 – 11, Paras E-B), Otop & Ors v. Ekong (2005) LPELR – 1139(CA) Per Adamu, (Pp. 23 -35, Paras C –A), Iloabachie v. Iloabachie

(2005) LPELR – 1492 (SC) Per Akintan, JSC (P.44, Paras B –C).
From the evidence on record, and as found by the trial Court, the Plaintiff/Respondent was able to prove that there was publication of the alleged libelous document and that it referred to him. However, none of the witnesses called by the plaintiff/Appellant alluded to or mentioned anything regarding the issue of defamation or of what they think of the Appellant consequent upon the publication. In the case of Esenowo v. Ukpong & Anor (1999) LPELR – 1166 (SC), it was held:
“Libel is the publication of false and disparaging matter against a person to a third party. See Sketch Publishing Co. Ltd v. Ajagbe Mokeferi (1989) 1 NWLR (Pt.100) 678, Per Belgore, JSC (P.7, Paras F- G). See also the case of A. I. C. Ltd v. Pivot Engineering Co. Ltd & Anor (2015) LPELR – 25857 (CA), Per Iyizoba, JCA (Pp.24 -25, Paras F – C).’’
The lower Court cannot in the absence of evidence from the Appellant’s witnesses of their impression of the Appellant based on the publication of the alleged libelous document be faulted for finding that the

Appellant failed to substantiate his claim based on exhibit “A1 (A)”.

The other issue on which the appeal was determined was on whether the respondent as Village Head has the right to excommunicate the Appellant from Komta Community under any guise over title to land with another person.

Was the Appellant really ex communicated over a land dispute between him and another person? From the record of appeal before the Court, it is without doubt that the disciplinary measure meted out to the Appellant was not because he had a dispute with another person; but was because he refused to answer the call of the Committee which he had used during his Chairmanship of Komta Community Development Association to ex Communicate erring members of the community who refused to tender apology in appropriate circumstances.

As rightly found by the trial Court, the evidence adduced on both sides during the trial established the fact that Komta Community has a recognized and binding tradition or practice of disciplinary measures against its members who are considered to have offended the community. The evidence on record also shows that such disciplinary

measures which includes ex communication, suspension/expulsion have been in existence and acknowledged by the community even before the defendant became the Village Head.

Be that as it may, it is not in dispute that the Appellant still resides in Komta Village. There is no evidence of any attempt to force him out of the village, and of any threat to force him out. As admitted by the Appellant himself under cross examination when he testified as PW5, he moves freely within the locality to the Church and to the market. His children also carry out their activities without molestation.

Therefore, I adopt his Lordship’s resolution on this issue against the Appellant. The end result of all the foregoing is that I too find no merit in this appeal, and dismiss same, and in consequence affirm the decision of the lower Court.

Appearances:

Chief Caleb Ubale Esq., with him, Ayuba Adamu Esq. For Appellant(s)

Bulus K. Ma’ori Esq. For Respondent(s)