MR. JIMOH ADENIYI OLORUNWA v. MR. STEPHEN AKINDUN (2016)

MR. JIMOH ADENIYI OLORUNWA v. MR. STEPHEN AKINDUN

(2016)LCN/8494(CA)

In The Court of Appeal of Nigeria

On Monday, the 18th day of April, 2016

CA/EK/48/2014

RATIO

TORT: SLANDER; HOW SHOULD SLANDER IN A FOREIGN LANGUAGE BE INTERPRETED
It is settled law that the defamatory words in an action in slander as uttered and published in a foreign language as here must be set out side by side the literal translation to English language of the slanderous words for the action to be properly constituted. See: Bullen and Leake, on pleadings 11th Edition at page 510 and with approval the case of Sowole Vs. Erewunmi (1961) 1 ANLR 741 at 743. PER FATIMA OMORO AKINBAMI, J.C.A.
TORT: MEANING OF DEFAMATION
On the whole defamation as a tort whether as libel or slander has been judicially defined to encompass imputation which tend to lower a person in the estimation of right thinking members of the society generally and thus expose the person so disparaged (Plaintiff) to hatred, opprobrium, odium, contempt or ridicule. See: Nitel Vs Togbiyele (2005) AFWLR (Pt.246) 357, BPPC Vs Gwagadawada (1980) 4 NWLR (Pt.116) 439. PER FATIMA OMORO AKINBAMI, J.C.A.
TORT: MEANING OF SLANDER
It is trite that slander on the other hand has been defined as a false and defamatory statement (i.e. of a transient nature) made or conveyed by spoken words, sounds, looks, signs and gestures or in some of and concerning the Plaintiff that is to a person other than the Plaintiff, without any lawful justification or excuse whereby the plaintiff has suffered special damages. I must add that slander is actionable per se without proof of damage being required to be proved by the Plaintiff to succeed in the action. See words and phrases legally used vol.5 S-2 P.83, and also Egbe Vs Adefarasin (1987) 1 NSCC (Vol.18) 1. PER FATIMA OMORO AKINBAMI, J.C.A.
TORT: DEFAMATION; INGREDIENTS FOR PROVING SLANDER MADE IN A FOREIGN LANGUAGE
The learned authors of Clerk and Lindsel on Torts 11th Edition at paragraph 1245 stated
the plaintiff must be prepared to put and prove the necessary gloss or innuendo upon them. They may be wholly or in part foreign, technical or slang, and if so, they must be properly translated by suitable expert evidence into plain English?
The above extract has laid bare the duty of a plaintiff in a case as this one to call an expert evidence in order to prove the translation of a foreign language to English.
In the absence of an expert interpreter, this case has terribly floundered. Unarguably in the absence of expert translation of the slanderous words the Respondents case on this point therefore fails. See: Azu Vs The State (1993) 6NWLR (Pt.299) 303.
From the totality of my reasoning above, the Respondent has failed woefully in proving the essential ingredients necessary to constitute and succeed in an action in slander as here uttered in a foreign language to PW3 and PW4. And I must reiterate that to succeed in such actions the Plaintiff must do so by:
(1) Proving the actual words published to a person other than the plaintiff; and
(2) Proving the translation to English by a sworn interpreter or an expert witness.
The two 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 as here. The implication of failing to discharge the above essential ingredients in an action in slander as here where the slander is founded on the backdrop of a foreign language is graver as the action having been founded in defamation cannot in that regard be said to have been properly constituted without pleading and proving the defamatory words in a foreign language as required by law. The gist of such action as here if I may recap is the publication to another person as the PW3 and PW4 in this case the alleged slanderous words. I hold that the slanderous words must be translated from the foreign language to English language and proved by an independent sworn interpreter/expert called for that purpose. Where the Plaintiff is deficient in proving any of the ingredients as required by law, again as in this matter, his case in its entirety remains unproven and must fail. PER FATIMA OMORO AKINBAMI, J.C.A.

JUSTICES

AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

Between

MR. JIMOH ADENIYI OLORUNWA Appellant(s)

AND

MR. STEPHEN AKINDUN Respondent(s)

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the decision of the Ekiti State High Court, Ado-Ekiti Division, delivered on 21st day of March, 2014 in Suit No. HIJ/15/2008 per C.I Akintayo J.

In the statement of claim dated 31st day of October, 2008, the Respondent, as the plaintiff before the Lower Court claimed the following reliefs:-
(1) Ten Million Naira (N10,000,000) being general damages for defamation committed by the Defendant against the Plaintiff herein, that sometimes in year 2007, at the motor garage, Iloro-Ekiti, Ekiti State within the jurisdiction of this Court.
The Defendant alleged that the plaintiff administered abortion pills/drugs on one Mrs. Janet Adeniyi then his wife, and that Plaintiff also committed adultery with the said Mrs. Janet Adeniyi consequent upon which the drugs/pills terminated the pregnancy which the said Mrs. Janet Adeniyi had for defendant herein who was then her husband. These defamatory statements caused Plaintiff embarrassment and loss of integrity and reputation.
?(b) Perpetual injunctive order restraining the defendant, his agents,

privies, assigns, attorneys etc from further defaming the plaintiff herein. The Defendant filed a statement of defence dated 29th day of August, 2008, wherein in paragraph 4 he denied paragraphs 6, 7 and 8 of the Plaintiff’s statement of claim and averred that he never made any defamatory statement against the Plaintiff at the motor garage, Iloro-Ekiti, Ekiti State or anywhere and defendant is not literate in English language and he could not speak English language or any language except Iloro dialect and therefore put plaintiff to the strictest proof of the said claims. He called on the Lower Court to dismiss same with substantial costs. To further add flesh and substance to his claim the Respondent filed a reply to the statement of defence. Issues now having been duly joined in the pleadings, the matter went to trial on 21st day of February, 2013. At the trial the Respondent Stephen Akindun, gave oral evidence on his own behalf. Some documents were tendered and admitted through him Exhibit A, B, ID1, ID2, C, E. At the end of his evidence-in-chief the Respondent was cross examined. During cross-examination the Respondent stated that he was installed as Chief

Oduro in his home town, from where he was said to have been defamed long time after the alleged defamation. He stated further that the defamatory words were uttered in Yoruba by the Appellant.

The 3rd and 4th Claimant?s witnesses gave evidence to the effect that they were present, when the Respondent was held by his neck with his clothes by the Appellant, who was calling the Respondent ?Alagbere? ?Asewo? and that he should leave his wife alone and that the incident happened on 30/11/2007. The only defence witness, Jimoh Adeniyi Olorunwa, the Appellant gave evidence on his own behalf. He stated that he had no previous quarrel with the Respondent. At the end of the evidence the Appellant, respective learned counsel took turns to address the Court. After the addresses of counsel the matter was adjourned for judgment. In its judgment, the Lower Court observed, remarked and held thus:-
?The evidence before the Court as established by the plaintiff in this case and even the evidence of the Defendant before the Court, which to my mind is more of an admission, point to only one irresistible conclusion that the Plaintiff

has proved his claim against the Defendant. The law is clear that facts admitted need no further proof, see Section 20 and 21 of the Evidence Act, MILITARY GOVERNOR OF ONDO STATE v KOLAWOLE (2000) FWLR (PT. 3) page 395. See also the case of OLOGE v NEW AFRICA HOLDINGS LTD (2013) 17 NWLR (PT.1384) AT 449 AT 469 PARAGRAPH D-F”

The Defendant/Appellant was dissatisfied with this judgment and appealed to this Court in a Notice of Appeal dated and filed on 21st May, 2014. I now wish to reproduce the said grounds of appeal without their particulars, thus:-
GROUNDS OF APPEAL
1. The decision is against the weight of evidence.
2. The trial Court erred in law when it held at page 17 of the judgment as follows:-
The evidence before the Court established by the plaintiff in this case, and even the evidence of the defendant before the Court which to my mind is more of an admission, point to only one irresistible conclusion that the plaintiff has proved his claim against the defendant.
3. The trial Court misdirected itself in law when it held at page 17 of the judgment that having considered the facts in this case the issue for determination is

whether on the preponderance of evidence before this Court, the plaintiff has proved his claim against the defendant.
4. The trial Court erred in law when it awarded the sum of N500,000.00 (Five Hundred Thousand Naira) as general damages against the defendant for defamation committed by the defendant against the plaintiff.

To argue the Appeal, learned counsel to the Respondent Ezekiel Agunbiade, Esq. filed a brief of argument dated 24th day of June, 2015. Also learned counsel Mr. D.D. Adejumola filed Appellant?s brief and reply brief on the 6th of October, 2015. In his brief of argument, learned counsel, Mr. Adejumola for the Appellant formulated and argued a lone issue this is :-
?Was the trial Court not in every respect in error when it held that the Defendant/Appellant has committed the tort of defamation i.e slander on the plaintiff/Respondent considering the nature of the facts and circumstances of the case.?

On his own part, learned counsel Mr. Ezekiel Agunbiade for the Respondent also formulated a lone issue for determination of this appeal as follows:-
?Whether the trial Court was right when it held that the

Appellant committed the tort of defamation i.e slander on the Respondent considering the nature, facts and circumstances of the case.?

At the hearing of the appeal before us on 19th January, 2016 respective learned counsel without more adopted and relied on their respective briefs of argument, while learned counsel Mr. D.D. Adejumola, on behalf of the Appellant urged the Court to allow the appeal, Mr. Agunbiade on behalf of the Respondent, urged on us to dismiss the appeal for being devoid of any merit.

Now having regards to the facts and entire circumstances of this appeal, the issue formulated by the appellant in my view appears to fully cover the grievance of the appellant as contained in the grounds of appeal. I will therefore proceed to consider the argument of respective learned counsel on the lone issue formulated by learned counsel Mr. Adejumola.
?
In arguing the issue formulated, Mr. Adejumola summarized the case of the Respondent at the Lower Court as a civil wrong which occasioned damage to the reputation and character of the Respondent particularly in the estimation of right thinking members of the society. In proving his case,

the Respondent called four witnesses, two main witnesses, one on subpoena as well the Respondent testifying on his own behalf. They were PW2, PW3, PW4 and PW1. Appellant on his part at the trial testified on his own behalf and did not call any other witness. He denied the allegations and assertions of the Respondent on the alleged words which Respondent claimed to be slanderous. It is the view of learned counsel that, the trial Court faced with the most crucial and reliable evidence, failed to properly evaluate it, as it was placed before it, particularly as regards and as touching on the defamatory words said to have been uttered.

Learned counsel noted the discrepancies in the evidence of PW1, PW3, and PW4 vis?a?vis, the averments of the Plaintiff in his pleadings. Under cross-examination PW1 stated that:
?The defamatory words were altered (sic) by the defendant in Yoruba language. See: page 14 of the record as opposed to paragraph 6 of his statement of claim wherein he stated that:
?Sometimes between October and November, 2007 defendant defamed the Plaintiff herein, at the motor garage Iloro-Ekiti, Ekiti State when he

said publicity (sic) to the hearing of the people at the garage and passers-by that I will show you, Stephen Akindun and make life difficult for you because you (Stephen Akindun) administered abortion pill/drugs on my wife, Mrs. Janet Adeniyi and also that you Stephen Akindun committed adultery with my wife, Mrs. Janet Adeniyi he further sic, ?Iwo alagbere?

PW3 in his examination-in-Chief stated thus:-
.On that date at about 4:30pm my friend and I were at the round about in Iloro Ekiti, and I saw that there were people at the Iloro Motor Park and when I went there, I saw that the plaintiff was held by the throat with his cloth by the defendant, who was calling the plaintiff Alagbere, Asewo
See Page 17 of the record of appeal.

PW4 in his evidence stated as follows:
. I saw so many people there who were shouting. I went there and saw that somebody i.e the defendant holding the plaintiff cloth by his neck and calling him Alasewo, Alagbere. Leave my wife only (sic). See page 18 of the record of appeal.?
?
Learned counsel contended that from the evidence of PW3 and PW4 reproduced

above that it lay more credence to the evidence of the Appellant, who in his pleadings statement of defence, stated that he is not literate in English language and he could not speak English language or any other except Iloro dialect. See paragraph 4 of the statement of defence on pages 7-8 of the records. Buttressing this same position is the Appellant?s testimony under cross-examination in support of his not being literate as DW1, Appellant stated thus:
?It is my wife that signed (sic) for me in the bank as she is honest and literate. I can thumb print (sic) documents. I don?t sign document.?

The learned counsel referred to the pieces of evidence of PW1, PW3, and PW4 stating that there are contradictions in their evidence, coupled with inconsistencies when placed side by side with that of the plaintiff/Respondent?s pleadings. Also that parties must consistently make their case. See: Nigerian Aviation Handling Company Limited Vs. Yinka World Investment Limited & Anor (2013) ALL FWLR (PT678) 953 at 971 para F-G.
?
He urged this Court to find in favour of the Appellant on the above positions of the law having

analyzed same on pieces of inconsistently consistent evidence of the Plaintiff/Respondent. On the defamatory words said to have been uttered by the Appellant in the learned counsels view. The learned counsel contended that a reasonable man would regard the purported defamatory words as fabricated and he urged the Court to jettison the defamatory words as it was not supported and or substantiated with concrete evidence of the Appellant witness particularly that a relationship exists already, between the Appellant the Respondent and Mrs. Janet Adeniyi (deceased). The calling of the Respondent by his full name in the circumstance portrayed in the case now on appeal is very doubtful. Therefore a finding which if properly evaluated in evidence by the Respondent that:
?I know one Janet Adeniyi is an in-law to me. The said Janet Adeniyi used to be a wife to the defendant. They are no more together now. The senior brother to the said Adeniyi is married to my daughter. The marriage between the defendant and the said Janet Adeniyi has been dissolved by the Customary Court Ayetoro Ekiti.?

?The Appellant further established the existence of a

relationship between Appellant and Respondent as can be seen as follows:-
?I know the plaintiff in this case. He is my childhood friend. I know Janet Adeniyi she was my wife.?

These pieces of evidence remained unrebutted all through the trial. Learned counsel urged this Court to so hold. It was reiterated by learned counsel that on the above submission learned trial Judge grossly erred in law in not properly evaluating the evidence placed before the Court and this occasioned grave miscarriage of justice. He noted that it is imperative that a Court should consider, in the course of writing its judgment or ruling, all relevant evidence adduced in a suit and decide on the balance of probabilities which account he should accept. See: Chukwu v. Diala (1999) 6 NWLR (Pt 608) 674 at 682.
?
Learned counsel elucidated the point that where evidence is to be appreciated disjointedly from the totality of what was said to have been uttered, ?Iwo Alagbere?, ?Alagbere?, “Asewo? and ?Alasewo Alagbere? which seemed common and reoccurring from the evidence of all the Respondent?s witnesses at the Lower Court

to which the Court is not expected to or to have found upon were all in foreign and informal language before the Court. Learned counsel pointed out that the requirement to set out defamatory words in a foreign language, in the original form in the pleadings alongside the correct English translation of the defamatory words is because English language it must be emphasized is still the orthodox language of the Court. See: Chief T.F. Oruwari Vs. Ine Osler (2013) Vol 215 LRCN 90 and not ordinarily a matter of convention.

The learned counsel noted the fact that the defamatory statements was never interpreted from its raw version, to the language of the Court which is English. Specifically that the learned trial Judge erred in law when he held that:
?The evidence before the Court as established by the Plaintiff in this case and even the evidence of the defendant before the Court, which to my mind is more of an admission, point to only one irresistible conclusion, that the plaintiff has proved his claim against the Defendant.?
?
He reiterated that concerning the facts, nature and circumstances of this case, particularly as the claim discloses

no cause of action before the Court, having failed to comply with the requirements of the law, in establishing same. The Respondent is duty bound to place side by side, his Statement of claim, the slanderous words, together with its interpretation in English. Where the English translation of the alleged slanderous words cannot be agreed or admitted by the Appellant, the law is that the Respondent 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 this instant case, the only instance and attempt where the alleged slanderous words were translated was as a result of an afterthought, like one has newly woken from slumber in the Respondent’s written address on paragraphs 3:01 (a) 6:16 (e). See page 49 & 65 of the record respectively, And this cannot be substituted for evidence. See:Niger Construction Limited V Okugbeni (1987) 4 NWLR (PT 67) (78); Igwe v. AICE (1994) 8 NWLR (PT. 363) 459 @ 481. Learned caused adumbrated the fact that the Lower Court equally failed to appraise all evidence of case not even a fair consideration

of natural events prior to when the tune of the music of the Appellant and the Respondent changed. The Learned trial Judge allowed himself to be clouded with the dust of conflict and vision, he being Yoruba jury. Learned counsel referred to the case of Chief T.F. Oruwari V. Ine Osler (supra) at page 128 per Chukuma Eneh, JSC
the purpose of providing an interpreter is not to fulfil all righteousness but rather to provide a witness who is impartial, independent and to relate the true and exact meaning of the defamatory words used. This is the only basis upon which the proof can be ascertained?

It was observed by learned counsel that what is defamatory and slanderous in this case being words uttered in Yoruba land and in Yoruba dialect, is different from what same entails if it were to be uttered in Igbo Language, Kalabari or Itsekiri Language or dialect, here the need for the interpretation of same in the orthodox language of the Court. The trial Court rendered his decision solely on public sentiment or public good which is to cloth the law with uncertainty. For the trial Court to have based his Judgment on public

sentiment in preference to the express provisions of the law and facts laid before the Court on the subject matter in controversy, is to attempt a judicial legislation and in the process did great violence to established laws. The position of the learned trial Judge, being alien to our law and in settled jurisdictions in the world, over considering the totality of the evidence before the Court, ought to be upturned and he urged this Court to so do.]

The learned counsel, referred to the knowledge and happenings in the Appellant’s family (apart from being a childhood friend of the Appellant) has only increased doubt and suspicion as to whether or not this action is indeed slanderous, flowing from the evidence of the Appellant (DW1) under cross ? examination.
?
From the Appellant’s statement on page 23 of the record of appeal, learned counsel is of the view that the statements therein were not made or in the inferences of the Appellant but based on pieces of information gathered from his late wife, otherwise confessions having seen death approaching her. The Appellant did not approach the Respondent or engage him in an open confrontation as he would

not wash his wifes dirty linen in public, but choose to treat same with utmost confidentiality, as he stated under cross examination.

It was the contention of the Respondent that the defamatory words as claimed by the Respondent were said in its (raw) true nature as in this case, it behooves only on the trial Court to establish the circumstances in which same was uttered to ascertain what is just in either as being slander or vulgar abuse.
?
The learned counsel is of the view that Exhibits A, tendered by Respondent is most appalling. That a close perusal of exhibit C which also does not comply with the provisions of Section 104 of the Evidence Act, 2011, negating the assertion of the Respondents that no further relationship existed between himself and the late Janet Adeniyi as opposed to the capacity in which the suit filed by the Appellant against the duo of the Respondent and Appellant’s late wife in Exhibits C, was defended by S.J Ochayi of counsel, counsel to both Defendant .i.e the Respondent and the Late Janet Adeniyi) in the case. The learned counsel stated the purpose for which exhibits are admitted to be that of aiding the Court in writing its

judgment or ruling. See:Uzodima v Izuanso (No 2) (2011) 17 NWLR (PT 1275) 30 SC at para F-H.

He is of the view that Exhibit D, on the face of it, a subpoena was of no evidential value and, it faults the breathe of life, the Court gave to Exhibits E, F, and G to the extent that they carry no seal and bear no heading whatsoever as documents that emanated from the office of the Nigeria Police Force. See: Section 104 of the Evidence Act (supra). He urged this Court to also discountenance Exhibit B, as being a document that emanated from the Iloro-Ekiti Customary Court. Same having fallen within the ambit of the statutory definition of public document. He made reference to Section 4 of the Police Act 2004 which enumerated the general duties of the Nigeria Police, which bothers on criminal responsibilities and not civil. Learned counsel urged this Court to strike out Respondents paragraphs 12, 13, 14 and 15 of the Statement of claim see page 5 of the record of appeal. They are mere assertion that are unfounded and cannot be sustained in law.
He also urged the Court to strike out the IDs tendered in proving the case of the Respondent.
?
The definition

of the tort of slander was given by reference to judicial decisions by the learned counsel. See: Ologe Vs New Africa Holding Ltd (supra).

It was observed by learned counsel that on the 5th November, 2012, the Respondent was installed a Chief in his home town where the alleged defamatory statements were said to have been uttered.
See page 14 of the record, line 1-3 of the Respondent?s Cross-Examination. That the trial Court shut its eyes from all the inconsistencies and discrepancies in the testimony of the Plaintiff and his witnesses which was the fulcrum of the action.

It is the view of learned counsel that the trial Court failed to properly evaluate the evidence placed before it. He therefore urged this Court, to invoke the powers under Section 15 of the Court of Appeal Act, to consider and evaluate the pieces of evidence placed before the trial Court and make proper findings thereof See:Fashanu Vs. Adekoya ( 1974) ALL NLR 32.
?
He further reiterated that the trial Court was in error when it held that the Defendant/Appellant has committed the tort of defamation against the Plaintiff/Respondent with regards to the facts and

circumstances of this case and the position of the law. He therefore urged the Court to upturn the decision of the trial Court and allow the appeal.

In his response, Mr. Ezekiel Agunbiade, counsel for the Respondent enunciated the ingredients, any claimant must prove before the Court in order to establish the offence of defamation has been committed. He cited the case of Ologe Vs New African Holdings Ltd (2013) 17 NWLR 17 NWLR (PT 1384) 469 para A-B; Iloagachie v Oloabachie (2005) 13 NWLR (PT 943) 695: Concord Press (Nig) Ltd v Olutola (1999) 9 NWLR PT 620 578.

In respect of paragraph 3.0.2, 3.1 D of the Appellant’s brief, learned counsel for the Respondent that there are no contradictions nor discrepancies in the evidence of Pw1, Pw3, and Pw4 with that of the Appellant under cross-examination. He noted that the statement having been made in Yoruba Language is not a contradiction in any form. He reiterated the fact that there are no contradictions whatsoever in the evidence of Pw1, Pw2, Pw3, Pw4.

Learned counsel contended that for evidence to be contradictory, it has to affirm the opposite of what has been stated.
?
That the testimonies of

Pw1, Pw2, Pw3 all attested to the fact that the said defamatory words complained of, were said. See the case of Wachukwu Vs. Owunwanne (2011) 14 NWLR (PT 1266) 1, Ogidi v State (2003) 9 NWLR (PT 824) 1, Jeremiah v State (2012) 14 NWLR (PT 1320) 254.

Learned counsel referred to the statement of defence wherein, Appellant stated that he is not literate in English language, and he could not speak English language or any other except, Iloro dialect. He is of the view that the averment is not true as the Appellant stated under cross-examination in page 23 of the record that he has customers that are not Yoruba and he communicates with them. He asked the question how did the Appellant communicate with his customers who are not Yoruba, if he indeed did not speak any other language other that Iloro dialect. He then contended that from the above it is the testimonies of the Appellant, that are flawed with inconsistencies, and as such, the position of the law is trite, that such inconsistency should be resolved in favour of the Respondent. See: Nigerian Aviation world Investment Limited & anor v. Yinka World investment Limited (2013) ALL FWLR (PT 679) 953 at

971.

The learned counsel referred to paragraph 3.1.1 of Appellant’s brief, wherein he stated that the Respondent did not substantiate his claim with concrete evidence. He contended that from the evidence exhibits A,B,C,D,E,F,G as well as the testimonies of Pw1, Pw2, Pw3, and Pw4 they all point to the fact that the Appellant actually did defame the Respondent at Iloro Ekiti Motor garage by calling him defamatory and slanderous names, the Respondent has substantiated his claims unequivocally.

On proper evaluation of evidence learned counsel, is of the view that the learned trial judge in the circumstance of this case had no option but to declare that the defamation complained of actually occurred and give judgment.

It was noted by learned counsel that the Appellant admitted to have uttered the defamatory words when he signed Exhibit E, the letter of undertaking of 17/2/07 which was placed before the Court. He argued further that Appellant having signed and admitted to have uttered the defamatory statement is barred in law from giving oral testimony to the contrary.
?
It is settled law that a party cannot approbate and reprobate See: IBB

Ltd v Mutunci Co (Nig) Ltd (2012) 6 NWLR (PT 1297) 489: Anike v. SPAOCH LTD (2011) 7 NWLR (PT 1246) 229 and IBD IND LTD v. MUTUNICI CO (NIG) LTD (SUPRA) P 504, Learned counsel argued that Exhibit A, is a clear admission by the Appellant of the claims against him. He asserted that facts admitted need not be proved. See: Agboola v. State (supra). It is the view of learned counsel that the learned trial Judge was right when held that:
?that the plaintiff has proved his claim against the Defendant?

In further elucidation of his argument, learned counsel observed that the trial Judge anchored his Judgment on legal principle, evidence and judicial authorities contrary to the Appellant’s claim in paragraphs 3. 14, that the Court based its Judgment solely on public sentiment or outcry. He submitted that the claims by the Appellant that the Respondent was the one buying abortion pills for his wife were false. The evidence of Appellant viz-a-viz procurement of abortion pills, learned counsel contended, was hear-say evidence.
See: Section 75 of the Evidence Act, 2011. Njoku Vs. State (2013) 2 NWLR (PT 1339) 548 at 558.

?It was the view of the

learned counsel that the evidence of the Appellant contradicted his statement of defence.

The fact that, Appellant?s counsel challenged the admissibility of Exhibit ?C?. That the said exhibit was not an issue in the Appellant’s grounds of appeal. Learned counsel consequently urged this Court to discountenance the Exhibit ?C?.

It was further observed by learned counsel that the Appellant contested the admissibility of Exhibits E, F, G, yet he did not make it an it an issue in the grounds of appeal, neither was same made an issue in the Lower Court in the Defendant final written address on page 34- 43 of the record of appeal. Consequently same should be discountenanced by this Court. Also, he noted that Appellant did not object to the admissibility of Exhibit ?E? when it was tendered before the Court. Learned counsel pointed out the fact that the contents of paragraph 3.1.6 was not in the Appellant?s ground of appeal before the Court. He urged this Court to the therefore discountenance same, as no leave was sought and obtained from this Court.
?
Learned counsel reiterated the point that the Chieftaincy

referred to by the Appellant was bestowed upon the Respondent, five years after he was defamed. That the defamation does not negate or overturn the fact that the said defamatory statement was made by the Appellant against the Respondent. He urged this Court to uphold that decision of the trial Court and dismiss this appeal.

The gravamen of this Appeal is whether on the preponderance of evidence before the Court, the Respondent has proved his claim against the Appellant. The Appellant argued that the exact slanderous words were not pleaded or stated in evidence by the Respondent. There was no expert or interpreter called to interpret the words of defamation from native dialect to English language which is the language of the Court, in a manner devoid of bias or misinterpretation. The names of third parties that heard the words were not pleaded nor stated in evidence, the facts of the damages not pleaded, nor given in evidence. The Plaintiff/Respondent has pleaded the said defamatory words in paragraph 6 of the statement of claim thus:
?6) Sometimes between October to November, 2007, defendant defamed the plaintiff at the motor garage

Iloro-Ekiti, Ekiti State when he said publicly to the hearing of the people at the garage and passers-by that ?I will show you, Stephen Akindun and make life difficult for you, because you (Stephen Akindun) ad ministered abortion pills/drugs on my wife, Mrs. Janet Adeniyi and also that or you Stephen Akindun committed adultery with my wife, Mrs. Janet Adeniyi? he stated further ?Iwo alagbere.?

It is noted that Respondent did not name any specific person to whom the defamatory words were spoken, thereby published. Furthermore, the said defamatory words ?Iwo alagbere? were not translated into English language in the pleadings. During the testimonies of the Respondent?s four witnesses the words were uttered in Yoruba language and were not translated into English language, which is the language of the Court. The defendant/appellant herein in paragraph 4 of the statement of defence has reacted to the allegation as follows:
?(4) defendant specifically deny paragraphs 6,7, and 8 of the plaintiff?s statement of claim and aver that he never made any defamatory statement against the plaintiff at the motor

garage, Iloro-Ekiti, Ekiti State or any where and defendant is not literate in English language and he could not speak English language or any language except Iloro dialect and therefore put plaintiff to the strictest proof of the said paragraphs.?

There can be no doubt that what has arisen from the apparent joinder of issues as per the above abstract of their pleadings and according to their briefs of argument is that a slander uttered in a foreign language must first be set out in the original language followed by a literal translation to English otherwise the action is not properly constituted to give rise to a reasonable cause of action before the Court. The instant matter has proceeded to trial wherefore the plaintiff/Respondent has sought to prove the alleged defamatory words and has called his witnesses on whom the burden rests to demonstrate that the said English translation of the defamatory words is correct particularly so as the same has been denied by defendant/appellant.
?
However, the Respondent has not called evidence specifically of an independent sworn interpreter knowledgeable in Yoruba and English languages to translate the

foreign language to English language. In other words, what the Defendant/Appellant is saying is that the Plaintiff/Respondent has not proved the exact slanderous words, according to law. That is there was no expert or interpreter called to interprete the words of defamation from native dialect to English language, which is the language of the Court in a manner devoid of bias or misinterpretation. It has remained the crucial issue in this matter. In other words what the defendant/appellant is saying is that the plaintiff/Respondent has not proved the defamatory words from the foreign language as uttered in Yoruba language as a first step to proving his claim.
?
Clearly, the Defendant/Appellant has so maintained in the Lower Court, his stance in this Appeal is no different and is predicated on the averments in paragraph 4 of the statement of defence which have specifically denied paragraph 6 of the statement of claim. He has thus put the correctness of the defamatory words as spoken in Yoruba language (a foreign language) in issue. And that fact having been put in issue as pleaded in paragraph 4 of the statement of defence, the onus of proving the English

translation thereof rests squarely on the plaintiff/Respondent. In that regard, it is trite that under the rules of pleadings:- issue is joined on that question between the parties. The plaintiff/Respondent?s case stands to collapse if no evidence is called on the issue. In the event of the plaintiff/Respondent failing to discharge the said onus it also follows that the question of publication of the slanderous words (as in this case in Yoruba language) as uttered in a foreign language to a third party (in this case to PW3, PW4) otherwise the gist of an action in slander and a necessary factor in establishing the publication of the defamatory words against a defendant as in this case, becomes a mirage.

In this regard it is trite that a trial Court has to certify defamatory words in a foreign language by an independent sworn interpreter before acting on the same. The instant trial Court?s findings on this important issue is at page 92 lines 6-16 of the record thus:
?Having considered the facts in this case the issue for determination is whether the preponderance of evidence before this Court, the plaintiff has proved his claim

against the defendant. The evidence before the Court as established by the plaintiff in this case and even the evidence of the Defendant before the Court which to my mind is more of an admission, point to only one irresistible conclusion that the plaintiff has proved his claim against the defendant. The law is that facts admitted need no further proof. See: Section 20 and 21 of the Evidence Act., Military Governor of Ondo State Vs. Kolawole (2000) F.W.L. R Pt 3 page 395. See: also the case of Ologe Vs. New Africa Holding Ltd (2013) 17 NWLR Pt 1384 page 449 at 469 para D-F.?
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From the above extract the trial Court has found that the instant defamatory words in a foreign language has been proved, though it was never translated to the English language which is the official language of the Court. The defendant/Appellant naturally being dissatisfied with the trial Court?s decision has appealed the decision to this Court substantially on the issue of the plaintiff/Respondent not having proved the defamatory words uttered in a foreign language (i.e. Yoruba language) to English language. The central questions that have cropped up in this matter in this

Court on the backdrop of their arguments as per their respective briefs simply put amount to whether an independent sworn interpreter knowledgeable in Yoruba and English language ought to have been called vis-a vis the testimony of PW1, PW3 and PW4 given at the trial as having proved the correctness of the translation of the alleged defamatory words in Yoruba language, a foreign language to English language as required by law in actions of slander of this nature. And whether truly any issue has been joined between the parties on that question vis-?-vis the state of their pleadings and if so whether the Lower Court rightly found for the plaintiff/Respondent as having proved the correctness of the said English translation and even then the publication to ? PW3, PW4 of the defamatory words as uttered in Yoruba language, to justify the findings on the issue by the Lower Court. However, one thing that is certain in this appeal is that the alleged publication of the defamatory words in Yoruba language a foreign language in the original form as uttered to PW3 and PW4 has been as pleaded by the plaintiff/Respondent. The purported defamatory words though

having been pleaded was not translated to English language as required by the Rules of practice and procedure in civil actions of this nature. It is settled law that the defamatory words in an action in slander as uttered and published in a foreign language as here must be set out side by side the literal translation to English language of the slanderous words for the action to be properly constituted. See: Bullen and Leake, on pleadings 11th Edition at page 510 and with approval the case of Sowole Vs. Erewunmi (1961) 1 ANLR 741 at 743.

The gist of the main issue in this respect at the trial Court is to the effect of whether publication of the defamatory words in a foreign language (Yoruba language) have been proved as required by law. The Plaintiff/Respondent has answered the poser in the affirmative by alleging the admission of paragraph 6 of the statement of claim as pleaded in paragraph 4 of the statement of defence.
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The Appellant?s case as set out in his brief of argument is that he has denied paragraph 6 of the statement of claim vis-?-vis his paragraph 4 of the statement of defence. On that basis he has opined to have clearly

joined issue with the plaintiff/Respondent as per the averments in paragraph 6 of the statement of claim. Meaning that the onus of proving the correctness cum publication of the said defamatory words in foreign language (i.e. Yoruba) has fallen on the respondent. And according to the appellant that onus has not been discharged. I agree with this point as I will show anon. Furthermore, the Appellant therefore has opined that the Lower Court has erred in wrongly deeming the appellant as having admitted the defamatory words in its original form as uttered in a foreign language (i.e. Yoruba) as that conclusion he also has contended, cannot have arisen from the state of the issues as joined on their pleadings. The Court is urged to interfere with the Lower Court?s decision on the findings on the issue being perverse and as having occasioned a miscarriage of justice.
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The Respondent (the plaintiff at the trial) on the other hand has contended that the appellant(i.e. the defendant at the trial) has not in his statement of defence denied the allegations as per paragraph 6 of

the statement of claim and so has rightly been deemed by the Lower Court as having admitted the alleged slanderous words in a foreign language(Yoruba) as pleaded in paragraph 6 and so requiring on his part no further proof in accordance with the rules of pleadings: in that what is admitted need no further proof. See: A.G. of Anambra State Vs Onuselogu Enterprises Ltd (1987) 4 NWLR Pt.66 547, Titiloye Vs Oladipo (1991) 7 NWLR (Pt.205) 519, Ugochukwu Vs C.C.B Ltd (1996) 6 NWLR (Pt.456) 524 and Buhari Vs Obasanjo (2005) NWLR (Pt.258) 1604.

The two issues raised for determination one on either side of this matter are identical and as can be seen have not specifically raised any issue questioning under the Rules of Practice and Procedure as to the mode and manner of pleading the instant defamatory words in a foreign language (Yoruba) thus presupposing that the defamatory words as uttered in a foreign language as here have been properly pleaded. I am of the view that the appellant ought to have challenged the pleading for not meeting the Rules of Practice and procedure in respect of the defamatory words which were uttered in Yoruba language and were not translated

into English language both in the pleading and also no interpreter was called to translate the words uttered in Yoruba language to English language. I see a ground from this for challenging the decision of the Lower Court on this ground. The action ought to have been challenged on this ground. The Plaintiff/Respondent having not complied with the practice and procedure of pleading the defamatory words in a foreign language to English.
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I am of the firm view that where the practice and procedure of setting out the defamatory words in a foreign language in a suit as here has not been strictly followed (as in this case by pleading the slander in Yoruba language and its translation to English) in constituting a claim in slander as here, the claim is challengeable on grounds of not having disclosed a reasonable cause of action in slander and in that event the action is liable to be struck out albeit in limine. This more so, where the slander in a foreign language has not been translated to English language at all in the plaintiff?s pleadings. In other words there is no English translation of the defamatory words of course the action is fatally flawed.<br< p=””

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I will at this juncture, before going further in this discourse examine the meaning of defamation as consisting of libel and slander so as to bring out in the con of this matter their unique distinctions viz-a-viz the real issue in controversy here.
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The cause of action in this matter has arisen from the alleged use of defamatory words in a foreign language to disparage the respondent?s name and integrity. On the whole defamation as a tort whether as libel or slander has been judicially defined to encompass imputation which tend to lower a person in the estimation of right thinking members of the society generally and thus expose the person so disparaged (Plaintiff) to hatred, opprobrium, odium, contempt or ridicule. See: Nitel Vs Togbiyele (2005) AFWLR (Pt.246) 357, BPPC Vs Gwagadawada (1980) 4 NWLR (Pt.116) 439.

It is trite that slander on the other hand has been defined as a false and defamatory statement (i.e. of a transient nature) made or conveyed by spoken words, sounds, looks, signs and gestures or in some other non-permanent form (as against libel which is required to be in some permanent form) published of and concerning the Plaintiff

that is to a person other than the Plaintiff, without any lawful justification or excuse whereby the plaintiff has suffered special damages. I must add that slander is actionable per se without proof of damage being required to be proved by the Plaintiff to succeed in the action. See words and phrases legally used vol.5 S-2 P.83, and also Egbe Vs Adefarasin (1987) 1 NSCC (Vol.18) 1.

From the above definition vis-?-vis the defamatory slanderous words in the instant case as uttered in a foreign language (i.e. yoruba language, the question that has arisen from the state of the pleadings is whether the defendant/appellant has uttered the alleged defamatory words in a foreign language (Yoruba) to PW3 and PW4. This allegations were not translated to English both in the pleading and in evidence before the Lower Court.
To be actionable it is required by law to be proved by the Plaintiff that the alleged slanderous words are published to a third party who understands the foreign language. Hence the necessity of the correct English translation of the defamatory words for the Court to understand the meaning in English being the language of the Court. It

is vital for the plaintiff to prove that the English translation of the defamatory words as here as uttered to PW3 and PW4 in a foreign language is correct that is as to their literal translation to English.

Firstly, I now have to consider whether as alleged by the Respondent, the Appellant has admitted via the pleadings of the instant defamatory words in a foreign language (i.e. Yoruba) that is to say as pleaded in paragraph 6 of the statement of claim vis-?-vis paragraph 4 of the statement of defence on the back drop of the principles of law guiding the Court under the Rules of pleadings that a defendant must expressly deny a plaintiffs material averment in his statement of claim otherwise he will be taken as having admitted the same.

It is also trite law that parties are bound by their pleadings and that facts not pleaded go to no issue and are bound to be discountenanced and expunged from the record. See: Enang Vs Adu (1981) 11/12 SC.25 @ 42, Okagbue Vs Romaine (1982) 5 SC. 133, Adenuga Vs Lagos Town Council 13 WACA 125 @ 126, Buraimoh Vs Esa (1990) 2 NWLR (Pt.133) 406 @ 414.
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The Appellant in paragraph 4 of the statement of defence has

denied the averments in paragraph 6 of the statement of claim and has put the plaintiff to the proof of the same. There can be no doubt of his having put the Respondent to the strict proof in that issue specifically.

I have not the slightest doubt that paragraph 4 of the statement of defence has clearly outlined the cause to be met by the plaintiff at the trial. Short of pleading evidence to support the allegation which is not permitted in pleading it is my view that the defendant having traversed the paragraph 6 of the statement of claim has put him to the strictest proof. That being so, it is trite law and also as opined by the learned authors of Gatley on Libel and Slander, that the Respondent (Plaintiff) in such situations is required to prove the slanderous word uttered in foreign language, to English by a sworn interpreter brought for the purpose and that nothing short of that quality and standard of evidence in establishing a slander uttered in a foreign language to English is acceptable. See: Dominion Flour Mills Ltd Vs George (1960) LL.53, NIPC Vs Thompson Organisation Ltd & Ors (1969) NMLR 99 and Aderemi Vs Adedire (1966) NMLR 398 @ 401. And

I so hold.
I must reiterate that it is a necessary factor albeit as a condition precedent to proving alleged slanderous words in a foreign language to translate the defamatory words to English language. The Plaintiff upon the state of the parties pleadings, as I have found above is in this regard required to call an independent sworn interpreter to translate the alleged slanderous words in a foreign language in this case from Yoruba language to English language otherwise the action must fail for failing to prove a necessary ingredient, to properly constitute an action in slander of this nature and at least raise a prima facie case for the defendant to rebut, that is to say as to the meaning cum publication of the defamatory words in a foreign language. Even then where the translation to English language of the defamatory words in a foreign language has not been pleaded at all or correctly translated to English as I have observed above it cannot be said that the meaning of the slanderous words as per alleged defamatory words has been published to a third party in this case PW3 and PW4 so as to properly constitute an action in slander as otherwise it has

not raised a reasonable cause of action. I must add that the requirement to set out the defamatory words in a foreign language in the original form in the pleadings as in the instant statement of claim in this case alongside the correct English translation of the defamatory words is because English language again it must be emphasized is still the orthodox language of the Court. See: Akereja Vs Oloba (1986) 2 NWLR (Pt.22) 257, 258, 261.

This requirement is not dispensed with whether or not the judge understands the foreign language, as it follows the principle of translating every document into English before it is admitted and acted upon by a Court and even then it also has to be so before the defamatory words in a foreign language can be proved and received in evidence in the proceedings at the trial.
The translation to English is usually done by an expert witness particularly through an interpreter called and sworn solely for that purpose etc, to translate the defamatory words uttered in a foreign language as in this case in Yoruba language to English language, otherwise if I may repeat the action is a non-starter; as no reasonable cause of action has

been constituted to warrant a rebuttal by the defence.
This position in this regard is aptly supported by the learned authors of Gatley on Libel and Slander (9th Edition) Paragraph 26.15 @ 659 as follows:
?Where the libel or slander was published in a foreign language, it must be set out in the statement of claim in that language and followed by a literate translation. It is not enough to set out a translation without setting out the original or vice versa. The pleader should include an allegation to the effect that the translation is a true interpretation of the foreign language used?
In the light of the foregoing reasoning I hold further that it is an essential requirement for the instant defamatory words in a foreign language to be proved in law.
In that wise as a first step the exercise of translating the same to English language and proving the same has to be done by expert evidence.
The Appellant has rightly pointed out and I agree with him that it is an essential requirement to prove the alleged slanderous words by a sworn interpreter translating the alleged slanderous words in a foreign language (i.e. Yoruba

language) to English language on having joined issue on that fact. I am in agreement with the Defendant/Appellant that the requirement has not been met by the nature and quality of evidence of PW3 and PW4 which were rendered in the proceedings at the trial of this matter. The Respondent has not discharged the onus on him in that regard.
The learned authors of Clerk and Lindsel on Torts 11th Edition at paragraph 1245 stated
the plaintiff must be prepared to put and prove the necessary gloss or innuendo upon them. They may be wholly or in part foreign, technical or slang, and if so, they must be properly translated by suitable expert evidence into plain English?
The above extract has laid bare the duty of a plaintiff in a case as this one to call an expert evidence in order to prove the translation of a foreign language to English.
In the absence of an expert interpreter, this case has terribly floundered. Unarguably in the absence of expert translation of the slanderous words the Respondent?s case on this point therefore fails. See: Azu Vs The State (1993) 6NWLR (Pt.299) 303.
?From the

totality of my reasoning above, the Respondent has failed woefully in proving the essential ingredients necessary to constitute and succeed in an action in slander as here uttered in a foreign language to PW3 and PW4. And I must reiterate that to succeed in such actions the Plaintiff must do so by:
(1) Proving the actual words published to a person other than the plaintiff; and
(2) Proving the translation to English by a sworn interpreter or an expert witness.
The two 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 as here. The implication of failing to discharge the above essential ingredients in an action in slander as here where the slander is founded on the backdrop of a foreign language is graver as the action having been founded in defamation cannot in that regard be said to have been properly constituted without pleading and proving the defamatory words in a foreign language as required by law. The gist of such action as here if I may recap is the publication to another person as the PW3 and PW4 in this case the alleged slanderous

words. I hold that the slanderous words must be translated from the foreign language to English language and proved by an independent sworn interpreter/expert called for that purpose. Where the Plaintiff is deficient in proving any of the ingredients as required by law, again as in this matter, his case in its entirety remains unproven and must fail.

I find therefore that the Plaintiff/Respondent as can be seen has woefully failed to prove the slanderous words uttered in Yoruba language being a foreign language. In short on the evidence before the trial Court the plaintiff/Respondent has failed to raise a prima facie case, to call for a rebuttal by the defence. And I so hold.

In conclusion I find that the Lower Court erred in its findings both in fact and in law as I have adumbrated in the fullness of my reasoning herein. In the result, this appeal being meritorious is hereby allowed. The judgment of the Lower Court in this matter being perverse and having occasioned a serious miscarriage of justice is hereby set aside with costs of N30,000:00 to the Appellant.

?Appeal allowed.

AHMAD OLAREWAJU BELGORE, J.C.A.:<br< p=””

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I agree.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead judgment prepared by my learned brother FATIMA OMORO AKINBAMI, J.C.A. I am not only in complete agreement with the manner in which the sole issue for the determination of the appeal as formulated by the Appellant was resolved but with conclusion of his lordship that the appeal is meritorious.

Accordingly, I too allow the appeal and hereby set aside the judgment of the Lower Court in favour of the Respondent. In place of the said judgment, the case of the Respondent (as Plaintiff before the Lower Court) is dismissed. I also abide by the order in relation to costs as contained in the lead judgment.

Appearances:

D. D ADEJUMOLA, ESQ.For Appellant(s)

E. AGUNBIADE, ESQ.For Respondent(s)

Appearances

D. D ADEJUMOLA, ESQ.For Appellant

AND

E. AGUNBIADE, ESQ.For Respondent