ALH. IBRAHIM BALA ALIERO v. ALH. SALIHU MUHAMMADU & ORS (2019)

ALH. IBRAHIM BALA ALIERO v. ALH. SALIHU MUHAMMADU & ORS

(2019)LCN/12952(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/S/108/2017

JUSTICES

AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

ALH. IBRAHIM BALA ALIERO
(For himself and on behalf of the family lineage of Jekada Muhammadu Dandaren Tuni Attah) Appellant(s)

AND

1. ALH. SALIHU MUHAMMADU
(District Head of Aliero)
2. GWANDU EMIRATE COUNCIL
3.ALIERO LOCAL GOVERNMENT COUNCIL Respondent(s)

RATIO

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF FACT BY THE TRIAL COURT

The settled position of the law is that where a trial Court fails to properly appraise the evidence before it and as a result failed to, draw up proper inferences, its finding of facts are liable to be set aside. See the case of ANYAEGBU vs. HUSSAINI (2001) FWLR (PT. 84) 247 AT 254 R1 cited by learned Appellant?s Counsel. See also the case of NARUMAL & SONS NIG. LTD vs. NIGER BENUE TRANS. CO. LTD (1989) LPELR- 1940 SC, where the apex Court per NNAMANI, JSC (of Blessed Memory) had this to say on the subject;
?The relationship of the trial Court and the Court of Appeal on the issue of finding of fact is so well settled that a long dissertation on it is not called for. A Court of Appeal will not normally interfere with the findings of fact of a trial Court unless such findings are perverse. If the findings are based on the credibility of witnesses, a Court of trial which had the advantage of seeing the witnesses and watching their demeanors is in a dominant position. If however, the complaint is as to the non-evaluation or improper evaluation of the evidence tendered before the trial Court, the Court of Appeal is in as good a position as the trial Court. See WOLUCHEM vs. GUDI (1981) 5 SC 319; FATOYINBO vs. WILLIAMS (1956) 1 FSC 87; KODILINYE vs. ODU 2 WACA 336 AT 338. PER OHO, J.C.A.

THE TORT OF DEFAMATION

The tort of defamation generally consists of the following elements: (1) false statement of fact; (2) capable of a defamatory meaning or by reason of an innuendo; (3) of and concerning another living person; (4) publication to a third party; (5) some degree of fault on the part of the person making the statement; and (6) harm to the reputation of the person defamed. See the case of SKYE BANK PLC & ANOR vs. CHIEF MOSES BOLANLE AKINPELU (2010) 9 NWLR (PT. 1198) 179. See also the case of ALHAJI ABBA ASHEIKH vs. ALHAJI KAKA MALLAM YALE (2010) LPELR-3811 (CA). It may be proper to note however, that even where the plaintiff is able to establish these elements, the defendant might be able to show that the communication was privileged. Where this happens to be the position, the burden to show an abuse of privilege shifts to the plaintiff, which plaintiff is mandatorily expected to discharge, by the filing of a reply in answer to the plea of the defense of privileged communication raised by the defendants. See the cases of BAKARE vs. IBRAHIM (1973) ALL NLR 653; FIRST BANK vs. ABOKO (2005) LPELR-7494; JOE ODEY AGI vs. FCMB (2013) LPELR-20708 (CA) and a host of other decisions on the subject. This, however, did not take place in the instant Appeal.
In the application of the elements identified above to the case in hand, the first of these is the publication of a false statement of fact. Where a statement is in fact true, no defamation action may be advanced, no matter how defamatory the statement is except where it carries a false implication. See ESENOWO vs. UKPONG (supra). PER OHO, J.C.A.

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): Slavery; the dehumanizing trade of yore and crime against humanity appears to be at the core of what has taken centre stage in the determination of this Appeal. It would be recalled that the practice was outlawed by Britain in 1807 and in 1833 along with its stigma, in all British Territories including Nigeria. More recently, the Constitution of Nigeria 1999, as Amended abhors Slavery in Section 34 and guarantees respect for the dignity of the human person and freedom from all forms of discrimination.

This Appeal and Cross Appeal was therefore triggered off by the 1st Respondent?s letter addressed to the Appellant dated 18th April, 2014 in which 1st Respondent regarded the Appellant?s family lineage as slaves of Sarkin Aliero Attah. A question that has arisen for the determination of this Appeal is whether the 1st Respondent?s letter of the 18th day of April, 2014 is defamatory or not. There are also other questions raised in this Appeal and Cross Appeal.

?The Appellant?s action as Plaintiff was commenced by writ of summons issued on the 21st day of

April, 2015 (who in this Appeal is the Appellant/Cross-Respondent) against the Defendants, (who in this Appeal are the Respondents/Cross-Appellants) at the High Court of Kebbi State sitting at Jega. At paragraph 46 of the Plaintiff?s Statement of Claim, the Plaintiff claimed against the Defendants as follows;
?WHEREOF the Plaintiff claims against the Defendants jointly and severally the following Reliefs;
a. A Declaration that the Plaintiff?s Grandfather by name Jekada Muhammadu Dandaren Tuni Attah was not given birth to through the marriage of Bawa Kwangel and Tuni Yar Bazaga otherwise known as Tuni Attah and therefore not slaves of Attah.
b. A Declaration that the status of slavery attributed to the Plaintiff?s family lineage by the 1st and 2nd Defendants is unknown to Nigerian Law.
c. A Declaration that it was wrongful and discriminatory for the Defendants to delete, attempt to delete and or remove the name of the family lineage of the Plaintiff from those family lineage that have interest or right over the stool of the District Headship of Aliero on the grounds that they are slaves.

d. A Declaration that the Plaintiff?s family lineage have an interest and or right over the stool of the District Headship of Aliero in Kebbi State of Nigeria and should be so considered by the Defendants.
e. A Declaration that the letter of the 1st Defendant to the Plaintiff dated 18th April, 2014 in which it considered the Plaintiff?s family lineage as slaves of Sarkin Aliero Attah, is defamatory in nature.
f. An Order setting aside the letter of the 1st and 2nd Defendants to the Plaintiff dated 18th April, 2014.
g. General Damages
h. Cost of this Action
i. Such further orders as this Honourable Court may deem fit to make in the circumstances.

Pleadings were ordered and duly filed. These consisted of the Plaintiff?s Statement of Claim together with its front-loaded processes dated and filed on the 21st day of April, 2014; 1st and 3rd Defendants? Statement of Defense together with their front-loaded documents filed on the 25th day of May, 2015 and the 2nd Defendant?s Statement of Defense dated and filed on the 8th day of June, 2015. The matter subsequently proceeded to trial.

In proof of its case, the Appellant called a total number of five (5) witnesses and tendered nine (9) Exhibits marked as Exhibits A & A1, B & B1, C & C1, D, E, & F and thereafter closed its case. See pages 207 – 222 of the records. In defense, the 1st and 3rd Respondents called three (3) witnesses who testified as DW’s 1, 2 and 3 and tendered no exhibits before closing their case. On the part of the 2nd Respondent, he led no evidence at the trial of this suit. Written addresses were ordered to be filed and exchanged. See pages 150 – 175 and pages 239 – 277 of the records. On the 14th day of February, 2017 the learned trial judge of the Court below delivered a well considered judgment wherein the Court dismissed Reliefs 1, 2, 3, 4 and 5 of the Appellant’s Claims. See pages 292 – 294 of the records.

Dissatisfied with the judgment of the Court below, the Appellant who was Plaintiff at the Court below, has Appealed to this Court vide a Notice of Appeal filed on the 8th day of May, 2017 and containing six (6) grounds, which are reproduced here without their particulars as follows;

GROUNDS OF APPEAL:
1. The decision of the Court below is unreasonable, unwarranted and against the weight of evidence.
2. The Court below erred in law and prejudiced the Constitutional right to fair hearing of the Appellant as enshrined under Section 36(1) of the Constitution when in the purported evaluation of DW?s 1 and 2, the Court below failed to consider the evidence of elicited by the Appellant from the 1st and 3rd Respondent?s witnesses under cross examination.
3. The Court below erred in law when it held that the evidence of the PW2 and PW3 was only limited to slavery and that not being kingmakers nor custodian of the tradition of Aliero people, their evidence was irrelevant and this has occasioned a miscarriage of justice.
4. The Court below erred in law when it held the evidence of PW1 was not conclusive and therefore unreliable on the basis that PW1 was neither a traditional Kingmaker nor any of the custodian of traditional History of Aliero was and this has occasioned a miscarriage of justice.
5.The Court below erred in law when after holding that:
?It means if they were from Bawa Kwangiel Family they were slaves and if they are from Sarkin Attah family, they

were not slaves? therefore, the tort of defamation has been established in view of the fact that slavery has been in Nigeria and by the testimony of DW2, that there is no slavery in Aliero Kingdom.”
It nonetheless held that the Appellant family lineage did not belong to the Ruling House of Aliero on the lineage of Sarkin Attah, and this has occasioned a miscarriage of justice.
6. The Court below erred in law and which occasioned a miscarriage of justice when it held that PW4 (Mohammad Arzika) cannot say with concrete information what happened and how his Father was born except he was told and that nothing was placed before the Court showing that the piece of information was true.
ISSUES FOR DETERMINATION:
The Appellant nominated a total of four (4) issues for the determination of this Appeal as follows;
1. Was the Court below right in law when it held the evidence of PW1, PW2 and PW3 not being kingmakers or custodian of the traditions of Aliero people, was thereby rendered irrelevant and or unreliable? (Grounds 3 & 4)
2. Was the failure of the Court below to evaluate the evidence elicited

from DW’s 1 & 2 under cross examination not an infraction of the Constitutional Right to Fair hearing of the Appellant as enshrined under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999? (Ground 2).
3. Was the lower Court?s decision correct in law when having found as a fact that the Appellant’s family lineage were not slaves of Sarkin Attah, which could have taken them out of the family lineage of Sarkin Attah, to turn around and hold that the Appellant family lineage did not belong to the family lineage of Sarkin Allah? (Ground 5)
4. Was the decision of the Court below correct in law? (Grounds 1 & 6).

On the part of the 1st and 3rd Respondents, two (2) issues were nominated for the determination of this Appeal as follows;
1. Whether from the state of pleadings and evidence before the trial Court; the Appellant proof his right to the stool of the district head of Aliero District. (Grounds 1, 2, 3, 4, and 6)
2. Whether from the state of pleadings and evidence before the Court; the Appellant proved his Claim of defamation as required by law of a statement in foreign language ‘Hausa’. (Ground 5)

On the part of the 2nd Respondent, only an issue was nominated for the determination of this Appeal viz;
?Whether the Appellant proved his right of being among the royal family members of Aliero ruling (Grounds 1, 2, 3, 4 and 6)

The Appellant?s Brief of argument dated the 14-11-2017, settled by IBRAHIM ABDULLAHI ESQ., was filed on the same date, while the Brief of argument of the 1st and 3rd Respondents dated the 11-1-2018, and deemed filed on the 24-1-2018 was settled by HUSSAINI ZAKARIYAU ESQ.,. The 2nd Respondent?s Brief of argument dated the 11-5-2018 was filed on the 15-5-2018 and deemed filed on the 5-11-2018. It was settled by IBRAHIM MAI-AFU ESQ.,. On the 28-2-2019 at the hearing of this Appeal, learned Counsel for the parties adopted their respective Briefs of argument and urged the Court to decide in favour of their sides. It would also be proper at this stage to disclose that for the sake of comprehensiveness, this Appeal shall be determined based on the issues nominated by the Appellant.

SUBMISSIONS OF COUNSEL:
APPELLANT:
ISSUE ONE:
Was the Court below right in law when it held the evidence of PW1, PW2 and PW3 not being kingmakers or custodians of the traditions of Aliero people, their evidence was thereby rendered irrelevant and/or unreliable?

In arguing this issue, learned Counsel referred Court to page 291 lines 14 – 17 of the records, page 291 lines 18 – 22 of the records and page 292 of the records containing the Court?s treatment of the evidence of the PW1, 2 and 3 and the reasons the Court gave for not placing any probative values on these pieces of evidence and submitted that the testimonies of these witnesses, who testified on oath on behalf of the Appellant are not restricted to evidence relating to slavery alone contrary to the conclusions made by the trial Court. It was further submitted by Counsel that the Exhibits A & A1 at pages 50 – 51 of the records cannot be completely divorced from the issue of slavery since it was the contention of the 1st Respondent vide the same Exhibits A & A1 that the Appellant and his lineage were excluded from any interest in the District headship of Aliero on the grounds that they are slaves of Sarkin Attah Aliero.

On account of this position, Counsel argued that any issue which dispels the issue of slavery is relevant to the issue of interest in the district headship of Aliero. He further argued that the witnesses? statements on oath of the PW1, PW2 & PW3 demonstrated this far and are therefore relevant in all circumstances of the case of the Appellant at the Court below. For this reason, Counsel contended therefore, that the trio of the PW1, PW2 and PW3 need not be custodians of the customs of the people of Aliero or Kingmakers for them to be able to give evidence relating to the claims of the Appellant at the Court below.
?
The contention of Counsel is that the Court below treated the case of the Appellant and the evidence of PW1, PW2 and PW3 as if it were a case that borders on proof of a custom whereas the claims of the Appellant had nothing to do with a claim relating to customary law, which will require the witnesses to be custodians of the customs of the people of Aliero or kingmakers and which will require strict proof. He further contended that in the Court below, no issues were joined on the question of the proof of any particular custom that had been specifically denied or in which

the adverse party had pleaded a contrary version concerning the subject matter in issue, and which had given rise to two conflicting traditional histories upon which the Appellant had based his claims.

Counsel also contended that even if the claims of the Appellant relates to the proof of a particular custom, Section 14(1) of the Evidence Act, 2011 provides the anchor. He said that the subsection merely provides that a custom can be proved to exist by evidence and that evidence can be led on the existence of the custom by a single witness or more witnesses. According to Counsel, it is not the law that the witness must be a kingmaker or custodian of the customs of the people or a village or community before he could give his evidence as a witness under the provision of Section 14(1) of the Evidence Act. ?
On the question of what amounts to giving probative value to a piece of evidence, Counsel submitted that it is not the number of witnesses that matter but the quality of the evidence given. He submitted that a perusal of the cross-examination of PW1, PW2 and PW3 at the Court below will show that they were not cross-examined on their depositions that

they know the history of Aliero and as it relates to the traditional stool of the District Headship of the place. He referred to pages 207 – 212 of the records and submitted that the evidence of the PW1, 2 and 3 remains uncontradicted and is therefore, deemed proved. See the cases of OLUJINLE vs. ADEAGBO (1988)2 NWLR (PT. 75) 238 (SC); ADEJUMO vs. AYANTEGBE(1989) 3 NWLR (PT.110) (SC); A.C.B. LTD vs. EGBUNIKE (1988) 4 NWLR (PT.88) 349.

What is more, Counsel argued that proceedings in civil proceedings are hardly won on the testimony derived from evidence-in-chief but rather from evidence, which is reliable and compelling and must be acted upon when it has gone through cross-examination and remains reliable. Counsel cited the case of SIKIRU OLAIDE OKULEYE vs. ALHAJI RASHEED ADEOYE ADESANYA & ANOR (2014) LPELR-23021(SC), where the Supreme Court of Nigeria per RHODES-VIVOUR, JSC (Pp. 18-19, paras. G-B) held as follows:
“Proceedings in civil proceedings commences with evidence in chief. The plaintiff states his case on oath as he understands it. Thereafter he is subject to cross-examination by counsel for the defendant.

Cross-examination is to test the credibility of testimony given in evidence in chief. Re-examination is an opportunity for the witnesses to restore credibility to his testimony. Cases are hardly won on testimony from evidence in chief. Evidence is reliable and compelling and must be acted on when it goes through cross-examination and remains reliable.?

On account of the foregoing, Counsel urged this Court to resolve this issue in favour of the Appellant and against the Respondent.

ISSUE TWO:
Was the failure of the Court below to evaluate the evidence elicited from DW’s 1 & 2 under cross examination not an infraction of the Constitutional Right to Fair hearing of the Appellant as enshrined under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999?

As a background to the argument of this issue, Counsel submitted that at the Court below while the Appellant fielded a total of five (5) witnesses, the 1st and 3rd Respondents fielded three (3) witnesses while the 2nd Respondent fielded no witnesses. Counsel thereafter contended that in law both examination in chief, cross examination and re-examination forms

part of the trial process and a trial Court is under a legal obligation to consider all the evidence adduced before it and evaluate same in the cause of writing its judgment so as to accord with the right to fair hearing of the Appellant as enshrined under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999. Counsel cited the case once again of SIKIRU OLAIDE OKULEYE vs. ALHAJI RASHEED ADEOYE ADESANYA & ANOR (Supra) and once again relied on the observations of the noble Lord, RHODES-VIVOUR, JSC.
?
In his further contention, Counsel told this Court that the Court below reviewed in its judgment, the evidence of the Appellant’s witnesses and all the evidence elicited under cross examination by the Respondents Counsel at pages 280 – 282 of the records, but that a panoramic perusal of the review of the evidence of the Respondents? witnesses particularly at pages 282-283 of the records will reveal that the Court merely restated only the evidence of the 1st and 3rd Respondents given in chief and the cross examination of the 2nd Respondent without a corresponding appraisal of the evidence elicited from the DW1 and DW2 by the

Appellant through his solicitor under cross examination. Against this background, Counsel drew attention to the cross examination of the said DW1 and 2 by Appellant?s Counsel (who was present in Court) at pages 224 & 226 – 227 of the records. However, and most unfortunately, according to Counsel, the Court below at pages 280 – 282 of the records only recounted the evidence given by DW1 and DW2 both in their examinations-in-chief and under cross examination in favour of the Respondents only.
?
It was also argued by Counsel that evidence before a Court of law consists of examination-in-chief, cross-examination and re-examination as provided for under Section 215 (1),(2) & (3) of the Evidence Act, 2011 and that the review of evidence elicited under cross examination forms part of the evidence under Section 215(1) of the Evidence Act, 2011. He submitted that notwithstanding this position, the Court below at pages 293 – 294 of the records placed heavy reliance on the evidence in chief given by DW’s 1 and 2 in coming to the conclusion that their lineage tree was more probable than that of the Appellant without testing their evidence on the basis of

the answers elicited during cross-examination by Appellant?s Counsel, which exposed numerous inconsistencies and contradictions in the evidence of DW1 and DW2.

Counsel further contended that there was failure on the part of the Court below to access evidence elicited from the Respondents? witnesses and which were favourable to the (Appellant) before ascribing probative value to the said evidence and exhibits tendered through these witnesses and/or drawing of proper inferences. For this reason, Counsel argued that the entire appraisal of the evidence by the Court below was lopsided i.e. in favour of the Respondents only to the detriment of the Appellant. Counsel?s further argument is that in law, where a trial Court fails to properly appraise the evidence before it and as a result failed to draw proper inferences, its finding of facts are liable to be set aside. He cited the case of ANYAEGBU vs. HUSSAINI (2001) FWLR (PT. 84) 247 AT 254 R1 in support.
?
Counsel also submitted that for any decision of Court to be valid, the principle of fair hearing as enshrined under Section 36(1) of the Constitution of the Federal

Republic of Nigeria 1999 must be observed and the test for determining fair hearing is an objective one and that what constitutes fair hearing depends on the circumstances of each case. See the case ofUKWUYOK vs. OGBULU (2010) 5 NWLR (PT. 1187) 316 AT 338 PARA A-B. See also the case of PDP vs. ABUBAKAR (2007) 3 NWLR (PT. 1022) 515 AT 547 PARA A-H on the essence of fair hearing.

The contention of Counsel is that for it to be said that the parties are accorded a fair hearing in a matter, both parties must not only have equal opportunities to present evidence, to cross-examine witnesses and do all those things that are part of the trial process of the case, but also for the Court to take such into consideration before it arrives at a just decision. See the cases ofWHYTE vs. JACK (1996) 2 NWLR (PT. 431) 401 AT 443 and WOMILOJU vs. ANIBIRE (2010) 4 SCNJ 243 AT 253. See also the case of PAN AFRICAN INT’L INCORPORATION & ORS vs. SHORELINE LIFT BOATS LTD &1 OR (2010) 3 SCNJ 179 AT 187.

Against the backdrop of the foregoing, Counsel submitted that in the instant case at the Court below the essentials of fair hearing were sacrificed when the Court

deliberately refused and/or neglected to consider the evidence elicited by the Appellant in the cause of cross- examining DW1 and DW2 and which did influence the decision of the Court below as it treated the evidence given by the prosecution witnesses as unchallenged evidence, which has occasioned a miscarriage of justice. Counsel urged this Court to resolve this issue in favour of the Appellant and against the Respondents.

ISSUE THREE:
Was the lower Court?s decision correct in law when having found as a fact that the Appellant’s family lineage were not slaves of Sarkin Attah, which could have taken them out of the family lineage of Sarkin Attah, to turn around and hold that the Appellant?s family lineage did not belong to the family lineage of Sarkin Attah?

The submission of Counsel is that the crux of the reasons why the Respondents alleged that the Appellant was not entitled to any rights and/or interests in the stool of the District Headship of Aliero was because the Respondents, going by the 1st Respondent letter dated 18th April, 2014, had regarded the Appellant’s family lineage as SLAVES OF SARKIN ATTAH and therefore not

entitled to any rights and/or interests in the stool of the District Headship of Aliero and which position was confirmed by the 2nd ? 3rd Respondents when they stated in Hausa language via the 1st Respondent?s said letter admitted as Exhibits A and A1 as follows:
?…Bawa kwangel da Tunin? yar bagaza dukkansu bayin Sarki Attah ne, Sarki Attah ya hada su aure inda sunka huifi Muh’du Dandaren Tuni da Kakalen Bisalla. Saboda haka ba kuda wata halaka da masarautar Aliero.”
Translated in English language to mean that:
?…The said Bawa Kwangel and Tunin? Yar Bagaza are slaves of Sarkin Attah who arranged the marriage between them and they gave birth to Muhammadu Dandaren Tuni and Kakalen Bisallah. In view of the foregoing, you cannot claim to be related to the leadership of Aliero district leadership.”
?
From the forgoing, Counsel argued that it is very clear that it was the issue of slavery and nothing more that the Respondents based their claims upon in asserting that the Appellant and his lineage cannot lay claims and/or interest to the District headship of Aliero. Against this background, Counsel

contended that the evidence and findings of facts by the Court below on the issue of slavery becomes relevant in interrogating whether the Appellant and his family lineage can lay claims and/or interest to the District Headship of Aliero.

According to Counsel, DW1 under cross examination at pages 223 – 225 of the records did not testify that the Appellant and his family lineage were slaves and that DW2 under cross examination at page 226 lines 15 of the records stated categorically that there are no slaves in Aliero Kingdom. Specifically, Counsel said that at page 227 lines 20 of the records, DW2 under cross examination stated that the Plaintiff?s father was not a slave. Again, Counsel said that at page 227 line 1 of the record, DW2 stated under cross examination that Muhammadu Dandare Tuni (Appellant’s Grand Father) was not a slave.
?
According to Counsel once again, the last straw that broke the proverbial camel’s back in relation to the false contents of Exhibits A and A1 written by the 1st and 3rd Respondents is the evidence of DW3 under cross-examination at page 233 lines 3 of the records wherein DW3 stated unequivocally that there are no

slaves in Aliero Kingdom. The contention of Counsel with regards to this issue is that the Court below appreciated the above lines of evidence given by the Respondents? witnesses in support of the Appellant’s case when the Court below held at page 294 lines 9 -11 of the records as follows:
Therefore the Tort of Defamation has been established in view of the fact that slavery has been abolished in Nigeria and by the testimony of DW2 that there is no slavery in Aliero Kingdom.”

Apart from this, Counsel stated that the Court below also went ahead to make far reaching pronouncements in connection with the issue when it declared the letter of the 1st and 3rd Respondents dated 18th of April 2014 (Exhibits A & A1) as defamatory. At page 294 lines 12 – 15 of the records, the Court below held as follows:
Accordingly a declaration that the letter of the 1st Defendant to the Plaintiff dated 18th April, 2014 which considered the Plaintiff’s Family as slaves of Sarkin Aliero is defamatory in nature. I hereby award a general damage of ?150,000 to the claimant.”

By the aforementioned Court?s decision, by the Court below, Counsel argued that the Court dispelled the contention of the 1st and 3rd Respondents contained in their Exhibits A and A1 about the Appellant and the undue stigmatization of his family lineage as being SLAVES of SARKIN ATTAH and therefore debunked the notion that the Appellant and his family lineage are not entitled to any rights and/or interests in the stool of the District Headship of Aliero, which was the ground relied upon by the 1st and 3rd Respondents in disqualifying the Appellant’s family lineage to the District Headship of Aliero.
?
The contention of learned Counsel therefore, is that the Court below having decided the foregoing, it will therefore amount to a judicial somersault for the same Court to hold that the Appellant’s family lineage did not belong to the lineage of Sarkin Attah when there was no contrary evidence from the Respondents to that effect. Counsel said that by declaring Exhibits A and A1 as defamatory, the Court below recognized the fact that the Appellant’s Grand Father by name Jekada Muhammadu Dandaren Tuni Attah was not given birth to through the marriage of Bawa Kwangiel and Tuni ?Yar

Bagaza otherwise known as Tuni Attah who by the conclusion of the Court below were not slaves of Sarkin Attah.

By making an undeserved u-turn despite the lower Court?s aforementioned findings, Counsel contended that the Court placed an additional burden of proof on the Appellant to establish that his family is among the ruling houses of Sarkin Attah after resolving that the letter of the 1st and 3rd Respondents was defamatory. This additional burden of proof, Counsel argued is wrongful especially when the Court below proceeded in such error to determine the case against the Appellant by wrongly placing the burden of proof on him. He said that it is therefore a grave error of law capable of rendering the entire decision of the Court below erroneous and liable to be set aside. According to Counsel, in law the consequences of grave misdirection and/or error of law dealing with the issue of onus of proof could be very devastating on the judgment of the Court appealed against and that an Appellate Court would readily intervene to set aside such a judgment. See PHMB vs. EJITAGHA (2000) 11 NWLR (PT. 677) 154; ADEDEJI vs. OLOSO (2007) 5

NWLR (PT. 1026) 133; Counsel cited the case of ONOBRUCHERE vs. ESEGINE (1986)2 SC 385 where the apex Court per OPUTA, JSC (God bless His soul) had poignantly put it thus:
?…Once it is found that there had been a misapprehension as to the onus of proof and a misdirection casting such onus on the wrong party, I think it will be reasonably fair to assume the likelihood of a miscarriage of justice.”
Counsel urged this Court to resolve this issue in favour of the Appellant and against the Respondents.

ISSUE FOUR:
Was the decision of the Court below correct in law?

As a background to the arguments of learned Appellant?s Counsel under this issue, he reminded Court of the decision of the 2nd Respondent who elected not to field any witnesses in support of their Statement of Defence. The implication of this is that the 2nd Respondents pleading is deemed abandoned and the Court below ought to have had same struck out. Counsel cited the case of BRAWAL SHIPPING NIG LTD vs. OMETRACO INT’L LTD (2011) 10 NWLR (PT. 1255) P. 291 AT 303 PARA E, in support of this proposition of the law.
?

It was also contended by Counsel that where the pleading of the 2nd Respondent are deemed abandoned, then the issues formulated by the 2nd Respondent cannot stand, ex nihilo nil fit. See the case ofMONKOM vs. ODILI (2010) 2 NWLR (PT. 1179) 419 at 442 Paras G -H R3. A further implication of the 2nd Respondent having not fielded any witnesses at the trial is that the 2nd Respondent is deemed to have admitted the entire contents of the allegations made in the Statement of Claims of the Appellant at the Court below. See the cases of BALAMI vs. BWALA (1993) 11 NWLR (PT. 267) 51; BADAWI vs. ADAM (1999) 3 NWLR (PT. 594) 303; In the case of MONKOM vs. ODILI (2010) 2 NWLR (PT. 479) P. 419 at 442 Para D 15, this Court per OMOKRI, JCA (of blessed memory) stated thus:
“Where a defendant rests his case on that of the Plaintiff at the trial, the defendant has taken the enormous risk of blowing a muted trumpet. The trial Court has little or no choice but to accept the unchallenged and uncontroverted evidence placed before it by the Plaintiff since it was not discredited by the defendant during cross-examination.”

Against this position, Counsel argued that so long as the 2nd Respondent did not

call any evidence in its defence, it simply means that only a minimal proof is required to enable the claimant succeed as far as the allegations pertaining to the 2nd Respondent are concerned. See once again the case of MONKOM vs. ODILI (supra) at page 451 Para B, on the issue. See also the case of AJERO vs. UGORJI (1999) 10 NWLR (PT. 621) 1. In urging this Court to resolve this Appeal in favour of the Appellant, learned Counsel also took his time to make elaborate submissions in support of the reliefs claimed by the Appellant as Plaintiff at the Court below. All of these submissions have been given adequate consideration by this Court in reaching its decision in this Appeal.

1ST AND 3RD RESPONDENTS
ISSUE ONE:
Whether from the state of pleadings and evidence before the trial Court, the Appellant proved his right to the stool of the District Head of Aliero District? (Grounds 1, 2, 3, 4, and 6)

In arguing this issue, learned 1st and 3rd Respondents? Counsel referred Court to Section 133 (1) and (2) of the Evidence Act, 2011 dealing with the issue of burden of proof on parties to an action in Court. Counsel stated that to

prove his claims before the Court below, the Appellant relied heavily on the evidence of PW1, PW2, PW3, PW4 and PW5, but that despite this, the trial Court who had the advantage of observing the demeanour of the witnesses when testifying and after a careful evaluation of the evidence adduced before Court rightly held thus:
“From the totality of the evidence adduced before the Court, the claimant has failed to established that he belongs to the ruling house of Aliero or the lineage of Sarki Attah.”

As far as Counsel is concerned, it is clear from the pleadings and evidence before the trial Court that the Appellant’s case was historical on an event that purportedly happened sometimes within the period of 1877 to 1913. He said that this is clearly captured by paragraph 6 of the Appellant’s statement of claim which provides:
“The Plaintiff avers that his grandfather, Muhammadu Dandaren Tuni Attah belongs to the lineage of Sarkin Aliero Attah Dan Ali who ruled from 1877 to 1913.”

Counsel contended that all other averments in respect of the totality of the Appellant’s claims flow from this historical paragraph and that from the evidence of the

PW1-PW5 pieces of evidence of events which took place after 1913 were stated, whereas none of the witnesses was alive during the reign of Sarkin Aliero Attah Dan Ali who ruled from 1877 to 1913. Counsel further contended that the Appellant?s case was filed on 21st April, 2015 a period of over a hundred and two (102) years since the reign of Sarkin Aliero Attah Dan Ali and that none of the witnesses of the Appellant was alive 102 years preceding the date of filing the case before the trial Court. For this reason, he submitted that the evidence of the PW1-PW5 are not evidence of eye witnesses but hearsay evidence. It was further submitted by Counsel that the evidence of the PW1 to PW5 not being evidence of eye-witnesses are therefore governed by Section 115(1)(2), 116(3) and 117(4) of the Evidence Act, 2011 (as amended). According to Counsel, the use of the operative word: ?shall? in all of these provisions make it mandatory for the contents of the affidavit containing the evidence of these witnesses to meet up with the requirements of the law as failure will render such depositions inadmissible in proving anything.

Learned Counsel also referred copiously to the records especially those containing the depositions of the Appellant?s witnesses and submitted that it is evident that none of the witnesses was alive during the reign of Sarkin Aliero Attah Dan Ali who ruled Aliero from 1877 to 1913. This and that all they said in Court was told to them by someone or persons whose identity were not disclosed on their statement on oath as provided for by Section 115 of the Evidence Act. It was further submitted that the evidence of the PW1 to PW5, having not been direct and without disclosing their sources are not acceptable in law to proof anything. He urged this Court to so hold. See the case of MV “NORDICA” vs. NPA (2016) 6 WRN 111 at 120 ratio 6 where this Court per AUGIE, JCA (as he then was) held the view that hearsay evidence is inadmissible and cannot be the basis for a decision and that an objection to hearsay can be taken at any stage of a trial or on appeal or even at the instance of the Court.

Learned Counsel also disagreed that the evidence of these witnesses (PW1-PW5) based on the Court?s decisions in ELEGUSHI vs. OSENI (2005) 14 NWLR; EWO vs. ANI (2004) 3 NWLR (Pt 861);

OJOH vs. KAMALU (2005) 18 NWLR (Pt. 958) and Section 66 of the Evidence Act, 2011 are admissible hearsay by way of traditional evidence. As far as Counsel is concerned the true position of the law is that such traditional history, which has qualified as a hearsay as provided by Section 38 of the Evidence Act, 2011 must be a transmission or chain of hearsay to hearsay up to the present person who relates it in Court; before such can be admissible.

Counsel argued that this is different from the evidence elicited in the instant case by the PW1-PW5 who told the trial Court that ‘their evidence are facts within their knowledge’ or that ‘they know as a fact’. Counsel submitted that these pieces of evidence cannot qualify as admissible hearsay in form of traditional history. He cited the case of YUNANA JAGABA & ORS vs. USMAN MOHAMMED UMAR (2016) LPELR-40466. See also the case of ASANI SOGUNRO & ORS vs. AREMU YEKU & ORS (2017) LPELR-41905 per NWEZE, JSC where the noble Lord held thus;
“My Lords, permit me to point out, by way of prefatory remarks, that this Court has warehoused an impressive corpus of jurisprudence on the genre of the accepted

mode of establishing title to land known as traditional evidence or traditional history, OHIAERI & ANOR vs. AKABEZE & ORS (1992) LPELR-2360 (SC) 39; ALADE vs. AWO (1975) 4 SC 215; IDUNDUN vs. OKUMAGBA (1976) 1 NMLR 206. This sort of evidence, namely, traditional evidence, which, in actuality, is a bit of ancient history, is evidence as to rights alleged to have existed beyond the time of living memory proved by members of the community or village who claim the land as theirs or who defend a claim to such and, DIKE & ORS vs. NZEKA & ORS (1986) LPELR-945 (SC) 23-24;Somewhat most intriguingly, even very senior counsel do not seem to appreciate that, in a strict sense, that type of evidence (traditional evidence) is no more than hearsay evidence, ALADE vs. AWO (1975) LPELR 400 (SC) 12. True, indeed, it is hearsay upon hearsay, ALADE vs. AWO (Supra); OBASI & ANOR vs. ONWUKA & ORS (1987) LPELR)-2152 (SC) 6-7. This must be so because it deals with events which occurred long ago, and the history of which has been handed down from father to son, or from generation to generation, ALADE vs. AWO (Supra); OBASI & ANOR vs. ONWUKA & ORS

(Supra). Almost always, the rights which the parties seek to establish by traditional evidence are such as had existed outside living memory or that existed beyond the time of living memory? Invariably, such witnesses cannot speak from personal knowledge as they merely repeat the story which their ancestors had told them (Underline, that of Counsel for emphasis)

As a result of the forgoing, Counsel submitted that in the instant case, the PW1-PW5 spoke from their personal knowledge as seen from their various depositions and their evidence is not chained as related from generation to generation and as they are told hence, they are clearly distinguishable from admissible hearsay evidence. Apart from the charge of giving hearsay evidence Counsel also contended that the PW1-PW4, by their evidence offended the provisions of Section 112 and 119 of the Evidence Act, 2011 when they gave evidence under cross examination that they ?thumb printed their statements on oath in the comfort of their homes?. The argument of Counsel is that this practice offends the provisions of Sections 112 and 119 of the Evidence Act, having not been sworn before the right person required by law.

In assuming but not conceding that the Appellant proved his case before the trial Court, Counsel submitted in addition that the 1st and 3rd Respondents? evidence before the trial Court preponderated more and hence the trial Court’s dismissal of the Appellant’s Claim before it. He said that the 1st and 3rd Respondents called three witnesses who testified as DW1 – DW3 (See pages 223 to 233 of the record of appeal). According to the Counsel, the evidence of DW1-DW3 were never controverted by the Appellant under cross examination, hence deemed admitted.

Similarly, Counsel contended that the evidence of DW1 to DW3 are those of blood relations of the witnesses to the family of late Sarki Attah, which apart from not being controverted is by law admissible. He referred Court to Section 75 of the Evidence Act, 2011 and urged this Court to resolve this issue in favour of the 1st and 3rd Respondents.

ISSUE TWO
Whether from the state of pleadings and evidence before the Court; the Appellant proved his Claim of defamation as required by law of a statement in a

foreign language ‘Hausa’. (Ground 5)

In arguing this issue, learned Counsel referred Court to the case of ORUWARI vs. OSLER (2013) 5 NWLR (PT. 1348) 535 at 543 where the apex Court stated what Counsel referred to as the settled position of the law in an action in slander where the offending words are uttered in a foreign language. Counsel submitted that the Appellant failed woefully in proving any of the two conditions, which ordinarily must be proved conjunctively. He said the Appellant’s pleading relating to this issue is as provided by Paragraphs 30, 31 and 32 of the Appellant’s Statement of Claim. (See page 12 of the record of Appeal). He said that in seeking to establish its case, the Appellant testified as the PW5 and tendered EXHIBITS A and A1. (See evidence of PW5 on page 17-28 of the record of appeal).
?
The submission of Counsel here is that the Appellant?s claim for slander by way of libel from a letter in a foreign language (Hausa Language) is not tenable in law, where such foreign language have not been interpreted by a sworn interpreter. He said that in the instant Appeal the Appellant translated the document all

by himself and not what was prescribed by the law; hence cannot be said to be an interpretation from a sworn expert interpreter. Counsel cited once again the Supreme Court in ORUWARI vs. OSLER (Supra) at 540 ratio 6.

According to learned Counsel, the 1st and 3rd Respondents denied paragraph 36 of the Appellant?s statement of claim (See page 13 -14 of the record of appeal) by paragraph 1 of their Statement of Defence (See page 69 of the record of appeal) and put the Appellant to a strictest proof of the averments therein. Counsel finally urged this Court to resolve this issue in favour of the 1st and 3rd Respondents and against the Appellant.

2ND RESPONDENT
?Whether the Appellant proved his right of being among the royal family members of Aliero ruling (Grounds 1, 2, 3, 4 and 6)

In arguing this issue, learned 2nd Respondent?s Counsel explained to the Court that 2nd Respondent was only joined in the suit as a Defendant being a nominal party and not because he is immediately liable in damages or because any specific reliefs have been claimed against it, but because as the Gwandu Emirate Council, it is connected with

the subject matter more so, when the Appellant’s action will be defective under the technical rules of practice, if the 2nd Respondent (Gwandu Emirate Council) was not joined in the proceedings.

RESOLUTION OF SUBSTANTIVE APPEAL
The Appellant?s first issue deals with the correctness or otherwise of the lower Court?s decision, which jettisoned the evidence contained in the testimonies of the PW1, PW2 and PW3 on the ground that they were neither kingmakers nor custodians of the traditions of the people of Aliero, thereby rendering irrelevant and/or unreliable their pieces of evidence. At page 291 lines 14 to 17 the Court below had this say as its reason for placing no probative values on the evidence of the PW1;
?The evidence is not conclusive therefore unreliable. Moreover, PW1 is neither among the traditional kingmakers nor (has) any other qualification to suggest that he is one of the custodians of the traditional history of Aliero.”
In the case of the PW2 and the PW3, also contained at page 291 lines 18 to 22 and page 292 respectively, the Court?s treatment of the evidence of the Plaintiff?s witness and

the reason for not placing any probative values on these pieces of evidence is that their testimonies are restricted to the issue of slavery alone. However, a careful perusal of Exhibit A and its translation in Exhibit A1 at pages 50 and 51 of the printed records, would show that the genesis of this matter cannot in any way be cleanly excised or divorced from the issue of slavery since it was the contention of the 1st Respondent vide the said Exhibits A and A1 that the Appellant and his lineage were excluded from any interest in the District headship of Aliero on grounds that they are slaves of Sarkin Attah Aliero that triggered off the Plaintiff?s action. To this end, therefore, it is only commonsensical that any piece of evidence which dispels or tends to dislodge the issue of slavery is relevant to the issue of interest in the District Headship of Aliero. If the 1st Respondent had not sought to exclude the interest of the family lineage of the Appellant to the District Headship of Aliero by referring to them as slaves, there would practically have been no reason on the part of the Appellant to seek by the evidence of his witnesses to dislodge the

allegation of slavery hanging on the head of the family lineage like the proverbial sword of Damocles.
A close look at the evidence of the PW1, PW2 and PW3 via their witness statements on oath clearly shows that the witnesses need not under any stretch of imagination be the custodians of the customs of the people of Aliero or Kingmakers for them to be able to give evidence relating to the claims of the Appellant at the Court below. This Court is in agreement with learned Appellant?s Counsel that it would have been an entirely different issue if the instant case is one that borders on the proof of a custom and not when the claims of the Appellant had nothing to do with a claim relating to customary law, and in which case would have required the witnesses to be custodians of the customs of the people of Aliero or kingmakers and which will require strict proof.?
A close perusal of the pleadings further show that in the Court below, no issues were joined on the question of the proof of any particular custom that had been specifically denied or in which the adverse party had pleaded a contrary custom concerning the subject matter in issue, and

which had given rise to two or more conflicting traditional histories upon which the Appellant had based his claims. Why the Court below had to reject the evidence of the PW1, PW2 and PW3 based on the reasons given by the Court below at page 292 of the printed records clearly beats the imagination of this Court.
Apart from these, Section 14(1) of the Evidence Act, 2011 as Amended which provides for the reception of evidence relating to customs merely provides that a custom can be proved to exist by the evidence of a single or more witnesses and it is not the law that the witness or witnesses must be kingmakers or custodians of the customs of the people or a village or community before probative value can be placed on their evidence. What is even more, a close observation of the record shows that the cross-examination of PW1, PW2 and PW3 at the Court below will show that the witnesses are very conversant with the history of Aliero and as it relates to the traditional stool of the District Headship of the place. See pages 207 – 212 of the records. What this translates in essence, is that the evidence of the witnesses are unchallenged and deemed proved.

See the cases of ISAAC OMOREGBE Vs. PENDER LAWANI (1980) 3-4 SC 70; ODULAJA vs. HADDAD (1973) 11 SC 35; OBINECHE vs. AKUSOBI (2010) 12 NWLR (PT. 1208) 383 SC.

On the contention of the 1st and 3rd Respondents that the evidence of the PW1 to PW3 are hearsay pieces of evidence, therefore inadmissible, the immediate reaction of this Court is that by Section 66 of the Evidence Act, 2011 hearsay evidence is admissible when it relates to traditional evidence or evidence relating to bygone days. The settled position of the law is that Courts have recognized the obvious fact that the witnesses, who are called upon to give traditional evidence, would not necessarily be in a position to give eye-witness accounts and that such witnesses cannot speak from personal knowledge as they merely repeat the story, which their ancestors had told them. The law is that the law, in its wisdom allows such evidence, most probably, in view of the fact that much of our past is practically unrecorded. Clear evidence of the wisdom of the Law in this regard could be found in Section 66 of the Evidence Act, 2011, which excludes this category of evidence from the hearsay

rule and elevated it to the status of admissible evidence. See the cases of OLALEYE vs. ADEJUMO (2005) 10 NWLR (PT. 933) 429; ALADE vs. AWO (1975) 4 SC 215 AT 223-224; ELEGUSHI vs. OSENI (2005) 14 NWLR (PT 945) 348; OKONKWO vs. OKONKWO (2004) 5 NWLR (PT. 865) 87.

The second issue nominated by the Appellant has to do with what Appellant?s Counsel referred to as the failure of the Court below to evaluate the evidence elicited from DW’s 1 and 2 under cross examination and his claim that this amounted to an infraction of the Constitutional Right to Fair hearing of the Appellant as enshrined under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999. A careful perusal of the records at pages 280 to 282, would show that the Court in its efforts at evaluating the evidence of the parties elicited from their witnesses merely restated only the evidence of the 1st and 3rd Respondents given in-chief without doing a corresponding appraisal of the evidence elicited from the DW1 and DW2 under cross examination by Appellant?s Solicitor. The cross examination of the said DW1 and DW2 is at pages 224 and 226-227 of the printed records and

where this is juxtaposed with the evaluation of the evidence conducted by the Court below at pages 280 to 282, it is all too glaring that the Court merely recounted the evidence given by DW1 and DW2 both in their examinations-in-chief and under cross-examination in favour of the Respondents only.?
Certainly, the situation where the failure of the Court below to access evidence elicited from the Respondents? witnesses under cross examination and which were no doubt in favour of the Appellant clearly smacks of nothing but a one-sided appraisal of evidence especially where it is glaring that it is all skewed in favour of the Respondents to the detriment of the Appellant. This is clearly unacceptable. In evaluating evidence before ascribing probative value to the evidence and exhibits tendered through witnesses and/or drawing up of proper inferences the Court is expected to do so dispassionately and where this is discovered not to be so done, the question of the violation of the Constitutional Right to Fair hearing of the Appellant as enshrined under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 cannot be ruled out.

In evaluating evidence, the Court?s role is not limited to taking into consideration the evidence derived from the answers elicited from the witnesses only in the course of examination-in-chief, but also evidence derived from cross-examination and re-examination as provided for under Section 215 (1),(2) & (3) of the Evidence Act, 2011. I cannot help but be in agreement with the contention of the Appellant, that the Court below at pages 293 – 294 of the records placed a heavy reliance on the evidence-in-chief of the DW’s 1 and 2 in coming to the conclusion that the lineage tree of the 1st and 3rd was more probable than that of the Appellant without testing their evidence on the basis of the answers elicited from the DW?s 1 and 2 under cross-examination conducted by Appellant?s Counsel. The settled position of the law is that where a trial Court fails to properly appraise the evidence before it and as a result failed to, draw up proper inferences, its finding of facts are liable to be set aside. See the case of ANYAEGBU vs. HUSSAINI (2001) FWLR (PT. 84) 247 AT 254 R1 cited by learned Appellant?s Counsel. See also the case of NARUMAL &

SONS NIG. LTD vs. NIGER BENUE TRANS. CO. LTD (1989) LPELR- 1940 SC, where the apex Court per NNAMANI, JSC (of Blessed Memory) had this to say on the subject;
?The relationship of the trial Court and the Court of Appeal on the issue of finding of fact is so well settled that a long dissertation on it is not called for. A Court of Appeal will not normally interfere with the findings of fact of a trial Court unless such findings are perverse. If the findings are based on the credibility of witnesses, a Court of trial which had the advantage of seeing the witnesses and watching their demeanors is in a dominant position. If however, the complaint is as to the non-evaluation or improper evaluation of the evidence tendered before the trial Court, the Court of Appeal is in as good a position as the trial Court. See WOLUCHEM vs. GUDI (1981) 5 SC 319; FATOYINBO vs. WILLIAMS (1956) 1 FSC 87; KODILINYE vs. ODU 2 WACA 336 AT 338
It is instructive to note that the improper evaluation of evidence at the Court below in the instant Appeal has nothing whatsoever to do with the credibility of the witnesses who testified before that Court and

whom the Court had the singular opportunity of watching their demeanor, but rather, to do with the non-evaluation or improper evaluation of the evidence tendered before the said Court and for which reason this Court is in as good a position as the trial Court to do its own evaluation of the facts.
The contention of the Appellant, which I find unable to fault in the circumstances of this Appeal is that for it to be said that the parties are accorded a fair hearing in a matter, both parties must not only have equal opportunities to present evidence, to cross-examine witnesses and do all that are required in the trial process to ensure that they are heard, but also for the Court in carrying out its onerous duties, to take all of these into consideration before it arrives at a just decision. See the cases of WHYTE vs. JACK (1996) 2 NWLR (PT. 431) 401 AT 443; WOMILOJU vs. ANIBIRE(2010) 4 SCNJ 243 AT 253; PAN AFRICAN INT’L INCORPORATION & ORS vs. SHORELINE LIFT BOATS LTD & 1 OR (2010) 3 SCNJ 179 AT 187.
In essence, therefore, where the procedure adopted by the trial Court in making findings of fact is considered suspect, probably arising

from the fact that only the evidence of one side was considered in making crucial findings of fact and evidence elicited and considered favourable to the other side was not considered in the evaluation process, a breach of the tenets of fair hearing cannot be ruled out and the consequence of this is that the entire proceedings will and ought to be a nullity. See OTAPO vs. SUNMONU (1987) 2 NWLR (PT. 58) 587. See also the cases of UKWUYOK vs. OGBULU (2010) 5 NWLR (PT. 1187) 316 AT 338 PARA A-B and PDP vs. ABUBAKAR (2007) 3 NWLR (PT. 1022) 515 AT 547 PARA A-H on the essence of fair hearing cited by learned Counsel for the Appellant.
All said and done, the lower Court?s deliberate refusal and/or neglect in turning a blind eye to the evidence elicited by the Appellant in the cause of cross-examining DW1 and DW2 and which did influence the decision of the Court below, when it treated the evidence given by the 1st and 3rd Respondent?s witnesses as unchallenged evidence, has no doubt occasioned a miscarriage of justice. Arising from the foregoing, therefore, this issue is also resolved in favour of the Appellant and against the Respondents.

The third issue nominated for determination dealt with the issue of whether the lower Court?s decision was correct in law after it has found as a fact that the Appellant’s family lineage were not slaves of Sarkin Attah, and then engaging in an undeserved 360 degrees turn around in holding that the Appellant?s family lineage did not belong in the class of families qualified to vie for the Headship of the District of Aliero. The contention of learned Appellant?s Counsel in arguing this issue is that the main reason why Respondents alleged that the Appellant was not entitled to any rights and/or interests in the stool of the District Headship of Aliero was because the Appellant?s family lineage had descended from the slaves of Sarkin Attah and had gone ahead to back up their claims with the 1st Respondent?s letter dated the 18th day of April, 2014.
Upon a close and calm perusal of this letter, it is very clear that it was the issue of slavery and nothing more that the Respondents had based their claims upon in asserting that the Appellant and his family lineage cannot lay claims and/or interest to the District Headship of Aliero.

This being the position, the evidence and findings of facts of the Court below on the issue of slavery becomes relevant in interrogating the problematic, which is whether the Appellant and his family lineage can lay claims and/or interest to the District Headship of Aliero or not and if not, then why?
Perhaps, the intriguing aspects of this case is the fact that the DW1 who was supposed to have been a witness for the Respondents, under cross-examination at pages 223 – 225 of the records did not testify that the Appellant and his family lineage were slaves and ditto the DW2 under cross examination at page 226 lines 15 of the records who stated categorically that there are no slaves in Aliero Kingdom. As if this was not enough the DW2 at page 227 lines 20 of the records, while still under cross-examination stated categorically that the Appellant?s father was not a slave and went on at the same page at line 1 to state under cross-examination that Muhammadu Dandare Tuni, who was Appellant’s Grand Father was not a slave.?
More intriguing perhaps, is the fact that it is not as if the trial Court did not appreciate the drift of evidence especially

those that came from the witnesses of the Respondents who, by and large gave evidence in support of the position of the Appellant’s case when the Court below held at page 294 lines 9 -11 of the records as follows:
Therefore the Tort of Defamation has been established in view of the fact that slavery has been abolished in Nigeria and by the testimony of DW2 that there is no slavery in Aliero Kingdom.”
The Court below, as it could be recalled did not stop at that as it went ahead to further make far reaching pronouncements in connection with the issues at stake. For instance, the Court declared the letter of the 1st and 3rd Respondents dated 18th of April, 2014 (Exhibits A & A1) as defamatory at page 294 lines 12 – 15 of the records and also went ahead to make an award of the sum of ?150,000 as general damages to the Appellant?s family on account of the defamatory letter. Having therefore debunked the 1st and 3rd Respondents? assertions contained in their Exhibits A and A1, wherein they claimed that the Appellant?s family lineage descended from the Slaves of Sarkin Attah and therefore not entitled to any rights

and/or interests in the stool of the District Headship of Aliero, which was the ground relied upon by the 1st and 3rd Respondents in the first place in disqualifying the Appellant’s family lineage to the District Headship of Aliero; it is rather surprising and most certainly bemusing for the same Court to have done a full 360 degrees turn around to hold that the Appellant’s family lineage did not belong to the mainstream lineage of Sarkin Attah when there was no contrary evidence from the Respondents to that effect.
By declaring Exhibits A and A1 as defamatory, the Court below no doubt recognized the fact that the Appellant’s Grand Father by name Jekada Muhammadu Dandaren Tuni Attah was not given birth to through the marriage of Bawa Kwangiel and Tuni ?Yar Bagaza otherwise known as Tuni Attah and who by the conclusion of the lower Court were not slaves of Sarkin Attah. This Court is therefore, in clear agreement with the Appellant?s Counsel that by the Court?s sudden summersault, it undeservedly misplaced the state of pleadings and the burden of proof, thereby misconstruing and misapplying the evidence before it.

In view of the forgoing, I therefore cannot help but to hold that this is a proper case for which this Court is expected to interfere.
The evidence in this case so far has overwhelmingly shown that the reason for which the 1st and 3rd Respondents have written their letter admitted and marked as Exhibits ?A? and ?A1?of the 18th day of April, 2014 was to get the Appellant?s family lineage disqualified from laying any claims and/or interests to the District Headship of Aliero when they chose the modus operandi of labeling them the descendants of the slave elements of Sarkin Attah. But here is a situation in which, by the lower Court?s own showing, it has not only gone ahead to declare the said letter defamatory, but has also gone ahead to recognize the fact that the Appellant’s Grand Father by name Jekada Muhammadu Dandaren Tuni Attah was not given birth to through the marriage of Bawa Kwangiel and Tuni ?Yar Bagaza otherwise known as Tuni Attah and who by this conclusion alone excluded Appellant?s family lineage as slaves of Sarkin Attah.?
It is important to note that the lower Court?s misplacement of the burden of

proof, wrong as it may seem also posed a grave error of law to the entire proceedings capable of rendering the entire decision of the Court below erroneous and liable to be set aside. In agreement with learned Appellant?s Counsel, the consequences of grave misdirection and/or error of law when dealing with the issue of onus of proof could be very devastating on the judgment of the Court appealed against and that an Appellate Court would readily intervene to set aside such a judgment. See PHMB vs. EJITAGHA (2000) 11 NWLR (PT. 677) 154; ADEDEJI vs. OLOSO (2007) 5 NWLR (PT. 1026) 133; See also the case of ONOBRUCHERE vs. ESEGINE (1986)2 SC 385 where the apex Court per OPUTA, JSC (Of Blessed Memory) had this to say on the subject:
?…Once it is found that there had been a misapprehension as to the onus of proof and a misdirection casting such onus on the wrong party, I think it will be reasonably fair to assume the likelihood of a miscarriage of justice.”

In respect of the fourth issue dealing with the question of whether the decision of the Court below was correct in law or not, the position of the 2nd Respondent in the course of the

trial occupied the central position of the Appellant?s Counsel submissions to the effect that the 2nd Respondent fielded no witnesses at the trial. According to Counsel, this simply implies that he abandoned his pleadings and in addition that he is deemed to have admitted the entire contents of the allegations made in the statement of claims of the Appellant at the Court below, which remains unchallenged. See the case of BALAMI vs. BWALA (1993) 11 NWLR (PT 267) P.51; BADAWI vs. ADAM (1999) 3 NWLR (PT. 594) 303; MONKOM vs. ODILI (2010) 2 NWLR (PT. 479) P. 419 at 442 Para D 15.
The settled position of the law where evidence is called by a party to an action, which is not challenged then only a minimal proof is required to enable the Claimant succeed; and as far as the instant Appeal is concerned, the allegations against the 2nd Respondent are deemed established on a minimal proof so long as the 2nd Respondent offered no resistance whatsoever, having failed to challenge the allegations of the Appellant as Plaintiff. See the cases of NWABUOKU vs. OTTIH (1961) 2 SCNLR 232; AJERO vs. UGORJI (1999) 10 NWLR (PT. 621) 1. In short,

this issue is also resolved in favour of the Appellant.

On the various issues raised by the 1st and 3rd Respondents in their briefs of argument dealing with the questions of the PW1 to PW4 who as witnesses were shown to have thumb-printed their Witness Statements on Oath in violation of Sections 112 and 117 of the Evidence Act, 2011 the attitude of this Court based on tons and tons of case law is that an appeal presupposes the existence of a decision ruled against at the Court below, and that where no such decision exists it cannot be brought to the Court of Appeal in the absence of the leave of Court having first been sought and obtained. See the case of ONYEAMAIZU vs. OJIAKO(2010) 4 NWLR (PT. 1185) 504 AT 526 PARA H – E cited by learned Appellant?s Counsel where the Supreme Court of Nigeria held as follows;
?Parties are not allowed to raise issues on appeal without first and foremost obtaining leave of the appellate Court to raise same. Where a fresh issue is raised on appeal without leave, such issue is incompetent and is liable to be struck out. In the instant case, the issue of waiver or per in curium were

never raised by the appellant at the-trial Court neither did that Court make any decision on them. The Court of appeal was therefore right in holding that for the issue to be raised before it, leave of that Court was required and that since the appellant never obtained such leave, the issue was incompetent and consequently struck out same.”

Apart from this, the 1st and 3rd did not Appeal against these perceived errors and the apex Court in the case of BHOJSONS PLC vs. DANIEL KALIO (2006) 5 NWLR (PT. 973) 330 (SC) per OGUNTADE JSC, (As he then was) had this to say on the subject:
?When an Appellate Court in the course of hearing an appeal forms the impression that the Court below made some errors, which ought to have been appealed against, the Appellate Court must show aloofness and refuse to be drawn into a correction of errors not appealed against.?
See also the case ofEJOWHOMU vs. EDOK-ETER MANDILAS LTD. (1986) 5 NWLR (PT. 39) AT 30 ? 31.

The 1st and 3rd Respondents made a heavy weather of the translated version of the defamatory document, that is Exhibits ?A? and ?A1?, which they said

were not tendered through an expert and therefore inadmissible in evidence. Once again, in agreement with learned Appellant?s Counsel, this is a new issue which was not raised at the Court below and which the Court below was never given the benefit of doubt of making pronouncement upon.
Apart from this, when it comes to the issue of translating of documents the settled legal position is that documents can be translated by any competent witness including parties to a case. See the case of OJENGBEDE vs. ESAN (2001) LPELR-2372 (SC) AT p. 29, where the apex Court per IGUH, JSC had this to say on the subject:
?There can be no doubt that the official language of superior Courts of records in Nigeria is English and that if that if documents written in any language other than are to be tendered and properly used in evidence they must be duly translated into English either by a competent witness called by the party to the proceedings who needs them to prove his case or by the official interpreter of the Court. A judge cannot on its own engage in the translation or interpretation of a document written in a language other than English

since he is precluded from performing the role of witness and an arbiter at the same time in the same proceeding. See DAMINA vs. THE STATE (1995) 8 NWLR (PT. 415) 513 AT 539-540.”

Arising from the foregoing, this Appeal succeeds per force and it is accordingly allowed.

DETERMINATION OF THE CROSS-APPEAL
The 1st and 3rd Respondents were also dissatisfied with the lower Court?s judgment and so had filed a Cross-Appeal as the 1st and 2nd Cross Appellants. The Notice of Cross-Appeal was filed on the 15th day of May, 2017. A total of three (3) Grounds were filed which, without their Particulars, are reproduced here as follows;
GROUNDS OF CROSS-APPEAL;
1. The Judgment is against the weight of evidence.
2. The learned trial judge erred in law when which occasioned a lack of fair hearing to the Cross Appellant when the Court held that 1st Respondent to the Cross Appeal proved libel against the Cross Appellants.
3. The learned trial judge erred in law when after holding that the 1st Respondent to the Cross Appeal failed to prove his claim, dismissed same and still awarded damages in favour of him.

Parties filed and exchanged their briefs of arguments on account of this Cross Appeal. In the 1st and 2nd Cross-Appellants? brief of argument settled by HUSSAINI ZAKARAYAU Esq., there is a sole issue nominated for the determination of this Cross Appeal, to wit;
Whether by the state of pleadings and evidence before the trial Court; the 1st Respondent has any cause of action for which the trial Court can give judgment for the tort of defamation by way of libel against the Cross-Appellant without occasioning a lack of fair hearing to the Cross Appellants. (Grounds 1, 2 and 3 of the notice of Cross Appeal)

The 1st Cross-Respondent?s brief of argument in this Cross-Appeal was filed on the 2-11-2018; settled by IBRAHIM ABDULLAHI ESQ., who also nominated a sole issue for the determination of this Cross-Appeal thus:
Was the Court below right in law when it found a case of defamation of Character in favour of the 1st Cross Respondent against the Cross Appellants and 2nd Cross Respondent (Grounds of Appeal of the Cross Appellant).
?
The issues nominated across board are by and large identical but for reasons of semantics as both issues question the

correctness or otherwise of the decision of the Court below. Against the background of this position, this Cross-Appeal shall be decided based on the issue nominated by the Cross Appellant.

SUBMISSIONS OF LEARNED COUNSEL
1ST AND 2ND CROSS APPELLANTS:
SOLE ISSUE FOR DETERMINATION:
Whether by the state of pleadings and evidence before the trial Court; the 1st Respondent has any cause of action for which the trial Court can give judgment for the tort of defamation by way of libel against the Cross-Appellant without occasioning a lack of fair hearing to the Cross Appellants. (Grounds 1, 2 and 3 of the notice of Cross Appeal)

In arguing the sole issue nominated for the determination of this Cross Appeal, learned Cross Appellants? Counsel referred this Court to the case of OPIA vs. INEC 2016 12 WRN 23 at 25 ratio 2 where the apex Court had cause to define what determines a cause of action and what materials a Court should look out for in determining what the cause of action is in a given civil action. The contention of Counsel is that in proving its case before the trial Court the 1st Cross Respondent herein, relied heavily on

the evidence of the PW5 and EXHIBITS A and A1. (See page 50 and 51 of the record of appeal for these Exhibits) and that the 1st Cross Respondent?s pleading relating to this issue is as stated in paragraphs 30, 31 and 32 of its Statement of Claim at page 12 of the record of Appeal, thus:
Paragraph 30:
“The Plaintiff avers that the 1st defendant regards the plaintiffs and his family lineage as slaves and the fact that they do not have any interest in the traditional stool of the district headship of Aliero.”
Paragraph 31:
“The Plaintiff avers that in order to get clarification, he wrote to the 1st defendant seeking for clarification as to why the 1st defendant regards the Plaintiff and his family lineage as slaves and the fact that they do not have any interest in the traditional stool of the district headship of Aliero and copied same to the 2nd and 3rd defendants.
Paragraph 32:
“The Plaintiff avers that the 1st defendant on the 18th of April, 2014 replied to the Plaintiff?s letter via a letter dated 18th April, 2014 in which it alleged amongst

others that the Plaintiff?s family lineage were slaves of Sarkin Aliero Attah and therefore not entitled to any rights and/or interests in the district headship of Aliero. The said letter written in Hausa language with its English translated version shall be founded and relied upon at the trial of this suit and same is hereby pleaded and annexed herein as Exhibits A & A1 respectively.”

According to Counsel, in proving its case, the Appellant testified as the PW5 and tendered EXHIBITS A and A1. (See page 218 of the record of appeal) and that while being led in evidence to adopt his witness deposition on oath, he said:
“I can identify the letter because it was address to me and it has the stamp of his secretary.”

The submission of Counsel thereafter is that the law relating to the tort of defamation based on libel is when the act complained of is published to a third party and that, that is what triggers the cause of action or when the cause of action in a libelous claim is said to have arisen. Counsel cited the case of ORUWARI vs. OSLER (2013) 5 NWLR 535 at 542 ratio 7 where the apex Court had this to say on the subject;

“A Plaintiff who alleges that words spoken of him in a foreign language are defamatory must prove that the words were published (spoken) to a third-party who understands the foreign language. This is so because the gist of an action for slander is the publication of the words complained of to another person.”

The contention of Counsel is that the said EXHIBITS A and A1 that the 1st Cross Respondent had relied upon in establishing its case of libel was the letter dated 18th April, 2014 published not to anyone else but to the 1st Cross Respondent himself; meaning that the letter was not published to any third party. Counsel referred Court to page 218 of the printed records where the 1st Cross Respondent admitted that the letter of 18th April 2014 (EXHIBIT A and A1) was addressed to him and not a third party. The argument of Counsel is that the 1st Cross Respondent?s was the only recipient of the so called libelous letter written to him and meant for his consumption alone. On the strength of this argument Counsel cited the case of CHIEF SIR A. O. EZEGBO & ANOR vs. GEORGE C. IGBOKWE (2016) LPELR-40784 where this Court per BADA, JCA

re-stated the law on when it can be said that the cause of action in the tort of libel has arisen.

The further argument of Counsel is that notwithstanding the fact that the 1st Cross Respondent has a right of action, but that a right of action not backed by a cause of action amounts to nothingness. He referred Court to the case ofADAMU ALIYU LIBA vs. SALISU GARBA KOKO (2016) LPELR 40770 and urged this Court to set aside the part of the judgment of the Court below, which gave judgment in favour of 1st Cross Respondent in respect of the tort of libel due to reason of lack of a cause of action.

However, in assuming but in not conceding that the 1st Cross Respondent has any cause of action against the Cross Appellants; Counsel submitted that the 1st Cross Respondent did not prove the required ingredients of his Claim for defamation in a foreign language (Hausa Language) before the trial Court. Counsel cited the case of ORUWARI vs. OSLER (2013) 5 NWLR (PT. 1348) 535 at 543 ratio 8 where the apex Court held thus;
“To succeed in an action in slander uttered in foreign language, a plaintiff must prove:
(a) the actual words published to a

person other than the plaintiff; and
(b) the translation to English language by a sworn interpreter as an expert witness.
The foregoing requirements must co-exist at the same time and must also be pleaded and satisfied before the plaintiff can succeed in an action in slander. The implication of failing to discharge the above essential ingredients is fatal to the plaintiffs? case. In this case, the respondent failed to prove the correctness of the translation to English of the Kalabari words she complained of. In the circumstance, the respondent did not make out a prima facie case worthy of rebuttal by the appellant.”

Arising from the foregoing, the submission of Counsel is that the 1st Cross Respondent failed woefully in proving any of the two conditions prescribed in the case of ORUWARI vs. OSLER (Supra) which ordinarily must be proved conjunctively. Counsel finally urged this Court to resolve this sole issue in favour of the Cross-Appellants and against the 1st Cross Respondent and allow this cross appeal.

1st CROSS-RESPONDENT
SOLE ISSUE;
Was the Court below right in law when it found a case of

defamation of Character in favour of the 1st Cross Respondent against the Cross Appellants and 2nd Cross Respondent?

In arguing this issue, the learned Counsel for the 1st Cross Respondent submitted that quite contrary to the assertions of the 1st and 2nd Cross Appellants that the letter dated the 18th day of April, 2014 was not published to anyone other than the 1st Cross Respondent alone, that the said letter was indeed shown to have been copied to sundry personalities by the Cross Appellants. Against this position Counsel referred to paragraph 38 of the 1st Cross Respondent?s written statement on oath at page 26 of the records. What is more, Counsel said that the letter was shown to have been copied to the 2nd Cross Respondent and that the fact that the 2nd Cross Respondent indeed received same vides its stamp and/or endorsement on the said letter showed that it was received by it.

It was also contended that the 2nd Cross Respondent upon receiving the published letter dated the 18th of April, 2014, sent a reply to the 1st Cross Respondent vide a letter dated the 5th May, 2014 in which it based its response on the letter dated the 18th of

April, 2014 and attached same. Instructively, Counsel argued that the 2nd Cross Respondent in paragraph 9 of its Statement of Defence at page 92 of the records admitted the fact that after the 2nd Cross Respondent received the said letter, it attached the said letter in replying the 1st Cross Respondent. According to Counsel, in law what is admitted need no further proof. Counsel cited the cases of ATTORNEY-GENERAL OF ANAMBRA STATE vs. ONUSELOGU ENTERPRISES LTD. (1987) 4 NWLR (PT. 66) 547; TITILOYE vs. OLUPO (1991) 7 NWLR (PT. 205) 519; UGOCHUKWU vs. CCB. LTD. (1996) 6 NWLR (PT. 456) 524 and BUHARI vs. OBASANJO (2005) NWLR (PT.258) 1604.

On the issue raised by the 1st and 2nd Cross Appellants that the foreign words in which the libel was published was not interpreted by a sworn interpreter, citing and relying on the case of ORUWARI vs. OSLER (Supra) Counsel submitted for the 1st Cross Respondent that the case at the Court below is that of libel and NOT slander and that apart from this, that the Court below did not make any pronouncements on the issue of interpretation and neither did the issue arise as a live issue in the cause of tendering

Exhibits A and A1. This being the case, Counsel argued that all the arguments of the Cross Appellants in relation to the issue ought to be expunged as the Cross-Appellants cannot be allowed to be changing his case like the pendulum of a clock or change the nomenclature of his case like a chameleon.

It is also submitted for the 1st Cross Respondent that litigation is not a hide and seek game and that an appeal ordinarily presupposes the existence of a decision ruled against; and that in the absence of such a decision on a point, there cannot possibly be the determination of an issue for which no pronouncement has been made. He further argued that since there are no decisions of the Court below relating to the issue of interpretation of Exhibit A1, then this Court lacks the vires to consider same in this appeal.

For the purposes of argument however, Counsel argued that the letter dated the 18th of April, 2014 which was adjudged to be libelous is in a written form and not just an allegation of mere words of mouth. He called in aid the case of ESENOWO vs. UKPONG & ANOR. (1999) LPELR-1166 (SC), where the apex Court per BELGORE, JSC (As he then was) at P. 7, paras. F-G stated thus: ?

?Libel is the publication of false and disparaging matter against a person to a third party. (SKETCH PUBLISHING CO. LTD vs. AJAGBEMOKEFERI (1989) 1 NWLR (Pt. 100) 678.”

Having established the fact that the case as fought at the Court below was Libel and not slander, Counsel argued that the principles established in the case of ORUWARI vs. OSLER (2013) 5 NWLR (PT. 1348) 535 AT 543 by the Supreme Court relates to Slander simpliciter and not an action founded on Libel and thence though remain good law, it is distinguishable from the facts and circumstances of the instant appeal. He said that it was because the case in ORUWARI vs. OSLER (Supra) was based on Slander that the Supreme Court held that it was necessary that an expert versed in Kalabari Language be called upon to interpret the spoken words (NOT WRITTEN WORDS) into English language.

According to Counsel, to show that the case ofORUWARI vs. OSLER also cited in (2012) LPELR-19764(SC) was a case of Slander and not Libel, the Supreme Court in the consideration on whom lies the onus of proof where English translation of the alleged slanderous

words cannot be agreed upon or admitted by the defendant, the Court Per CHUKWUMA-ENEH, JSC (As he then was) at P. 30, paras. A-D held thus:
?It is vital for the plaintiff to prove that the English translation of the defamatory words as here as uttered to PW5 in a foreign language is correct that is as to their Literal translation to English. And again, whereas here the English translation of the alleged slanderous words cannot be agreed or admitted by the defendant then the plaintiff bears the onus in Law to call an independent sworn interpreter particularly so for that purpose only, to prove the correctness and the meaning of its translation to English language; in other words this is so to prove the ultimate publication of the slander to a third party and thus consummate the action properly, which is the gravamen of an action in slander.?

What is more, Counsel further contended that it has long been settled that documents can be translated by any competent witness including parties to a case. He cited the case of OJENGBEDE vs. ESAN (2001) 18 NWLR (PT. 746) 271 at 790 paragraphs A ? D. It was also contended by Counsel that

the action of Libel like the one in the instant appeal is actionable per se without any proof of damages. Thence, in the case of OLANIYI vs. ELERO (2006) LPELR-5237 (CA), OKORO, JCA (As he then was) at Pp.11-12, Paras. E-A stated thus:
?Again Libel is always actionable per se that is, without the need to prove special or actual damage whereas slander is not actionable per se, except in certain cases, such as: – (i) Imputation of crime (ii) Imputation of certain diseases such as sexually transmitted diseases (iii) Imputation of unchastely or adultery especially of a woman (iv) Imputation affecting professional business reputation. Where any of the above is present slander is actionable per se and damages are presumed. See EGBE vs. ADEFARASIN (1987) 1 NWLR (Pt.47)1; (1987) 1 SC 1 at p. 20.?

Counsel finally urged this Court to hold that the decision of the Court below on the issue of its findings on defamation of character is correct in law and to dismiss this Cross Appeal.

RESOLUTION OF CROSS-APPEAL
In order for Court to conduct a thorough analysis of the issues at play in this Cross Appeal, it may be necessary to begin from first

principles. Defamation involves a false statement that defames or harms another person?s reputation. See the case of ESENOWO vs. UKPONG (Supra). See also the case of GUARDIAN NEWSPAPER LTD. ANOR vs. REV. PASTOR C. I. AJEH (2011) LPELR- 1343 (SC) on the subject. Defamatory statements are categorized as ?libel? or ?slander.? ?Libel? is written or visual defamation and ?slander? is spoken or oral defamation. What has been presented in this case is ?libel?. This is easily gleaned from the processes filed by the parties to this action especially as it has to do with Exhibits A and A1 of the 18th day of April, 2014.

case of ALHAJI ABBA ASHEIKH vs. ALHAJI KAKA MALLAM YALE (2010) LPELR-3811 (CA). It may be proper to note however, that even where the plaintiff is able to establish these elements, the defendant might be able to show that the communication was privileged. Where this happens to be the position, the burden to show an abuse of privilege shifts to the plaintiff, which plaintiff is mandatorily expected to discharge, by the filing of a reply in answer to the plea of the defense of privileged communication raised by the defendants. See the cases of BAKARE vs. IBRAHIM (1973) ALL NLR 653; FIRST BANK vs. ABOKO (2005) LPELR-7494; JOE ODEY AGI vs. FCMB (2013) LPELR-20708 (CA) and a host of other decisions on the subject. This, however, did not take place in the instant Appeal.
In the application of the elements identified above to the case in hand, the first of these is the publication of a false statement of fact. Where a statement is in fact true, no defamation action may be advanced, no matter how defamatory the statement is except where it carries a false implication. See ESENOWO vs. UKPONG (supra). The disputed statement must also express or imply an assertion

of fact rather than an opinion. In the instant case, it is important to note that the 1st and 2nd Cross Appellants did not deny that they authored Exhibits A and A1 wherein they referred to the 1st Cross Respondent family as descending from the lineage of slave elements and as a result cannot have a shot at the District Headship of Aliero.?
The disputed statement also must have a defamatory meaning – that is, it must be capable of harming a person?s reputation in the eyes of a reasonable person. A statement can be defamatory on its face or it can imply a defamatory meaning. A statement that is, on its face, not defamatory is nonetheless actionable if the defamatory implication or innuendo becomes reasonably apparent with the addition of other facts, whether contained in the publication itself or otherwise known to the reader. Con is critically important in determining whether a statement is defamatory. A statement standing alone may be rendered non-defamatory when considered in the larger con; conversely, an otherwise innocuous statement may be construed to be defamatory in the light of the surrounding statements. Words are to be given their

ordinary, everyday meaning as understood by a reasonable person of ordinary intelligence. See the case ofS. O. N. OKAFOR vs. D. O. IKEANYI (1979) 3-4 SC. 65, where the Supreme Court per BELLO, JSC (of Blessed Memory) had this say;
?In LEWES vs. DAILY TELEGRAPH LTD (1964) A.C 234 at page 258, Lord Reis spelt out the test for determining the natural and ordinary meaning of words as follows; ?there is no doubt that in actions for libel, the question is what the words would convey to the ordinary man; it is not a question of construction in the legal sense. The ordinary man does not live in the ivory tower and is not inhibited by the knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs? what the ordinary man would infer without special knowledge has generally been called the natural and ordinary meanings of the words? But more often the sting is not so much in the words themselves as in what the ordinary man would infer from them, and that is also regarded as part of their natural and ordinary meaning?the test according to the

authority, is whether under the circumstances in which the writing was published, reasonable man to whom the publication was made would be likely to understand it in libelous sense
In addition, the disputed statement must be capable of harming the reputation of another as to lower him in the estimation of the community or deter third persons from associating or dealing with him. Courts generally agree that statements that are merely embarrassing, unflattering or annoying are not defamatory. Rather, the statement must expose one to public hatred, contempt or ridicule, cause him or her to be shunned, and/or tend to injure one in his or her profession or trade. See also the case of J. I. OKOLO vs. MIDWEST NEWSPAPER CORP. & ORS. (1977) 1 SC 20. The evidence of the PW1 to PW4, given at the Court below and those given by the DW1 to DW3 under cross examination especially when they said that there are no incidents and/or history of Slavery in Aliero are clearly instructive in this direction.?
The 1st and 2nd Cross Appellants seemed, however, to have made a storm in a tea cup, raising several issues in this Court, which were never

raised before the lower Court and were being raised for the first time here on appeal. Although the law permits a party to raise a fresh issue not raised in the Court below on appeal that, however can only be done with the leave of the Court. It will probably be an up-hill task for a party who has abandoned a point in the Court below to now raise it for the first time on appeal and be allowed to argue same without the leave of Court first sought and obtained. See the case of ALHAJI KASHIM SHETTIMA & ANOR vs. ALHAJI MOHAMMED GONI & ORS (2011) LPELR- 417 (SC).

It would be recalled that the learned 1st and 2nd Cross Appellants? Counsel made a heavy weather of the Supreme Court decision in ORUWARI vs. OSLER (Supra) and the apex Court?s prescription of the use of experts in the translation of slander spoken in a foreign language into the English language which is the language of the Court. The clear position here is that while the apex Court?s judgment for all times in the case of ORUWARI vs. OSLER (Supra) remains good law on account of the principles enunciated in the case, the case applies strictly to cases of slander and not to

tortuous libelous acts. See the clear observations of the noble Lord, CHUKWUMAH-ENEH, JSC which more than threw light on the raison d? etre behind the apex Court?s reasons for insisting on the need to seek the services of an expert in the Kalabari language in interpreting the slanderous words used in that action spoken in the Kalabari language into the English language which is the language of the Court. Arising from the foregoing, this Cross- Appeal fails, while the Substantive Appeal once again succeeds per force AND IT IS FURTHER ORDERED AS FOLLOWS;
a. The Substantive Appeal succeeds per force.
b. The Cross-Appeal fails and it is accordingly DISMISSED.
c. Consequently, an ORDER SETTING ASIDE the part of the decision of the Court below dismissing reliefs 1, 2, 3, 4, & 5 of the claims of the Appellant is HEREBY GRANTED.
d. An Order of Court is HEREBY MADE entering judgment in favour of the Appellant in respect to reliefs 1, 2, 3, 4 & 5 of the claims of the Appellant in the Court below in suit No; KB/HC/JG/2/2015.
e. There shall be no orders as to cost.

AHMAD OLAREWAJU BELGORE, J.C.A.: After the slave trade was abolished by the Great Britain, any reference to any person as a slave is, per force, not only discriminatory but also defamatory.

I agree with my learned brother, FREDERICK O. OHO’s reasoning and conclusion in view of Section 34 of the Constitution of the Federal Republic Nigeria, 1999, as amended.

I allow the appeal and dismiss the cross – appeal and abide by the consequential orders contained in the lead judgment.

AMINA AUDI WAMBAI, J.C.A.: I read in draft form, the judgment just delivered by my learned brother, Frederick O. Oho, JCA. I agree with his reasoning and conclusion that there is merit in the appeal and that the Cross-Appeal is devoid of any merit. I adopt his reasoning in allowing the appeal and dismissing the Cross-Appeal. I endorse the consequential orders therein.

Appearances:

Ibrahim Abdullahi, Esq. for Appellant/1st Cross RespondentFor Appellant(s)

Hussaini Zakariyau, Esq. for the 1st and 3rd Respondents/1st and 2nd Cross Appellants.

Ibrahim Mai-Afu, Esq. for the 2nd Respondent/2nd Cross Respondent
For Respondent(s)

Appearances

Ibrahim Abdullahi, Esq. for Appellant/1st Cross RespondentFor Appellant

AND

Hussaini Zakariyau, Esq. for the 1st and 3rd Respondents/1st and 2nd Cross Appellants.

Ibrahim Mai-Afu, Esq. for the 2nd Respondent/2nd Cross RespondentFor Respondent

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