Agonsi V. Ukwu (2022)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C. 

The Respondent was Acting General Manager of Adapalm (Nig.) Ltd., Ohaji, Imo State, before moving to Imo Agricultural Development Programme (ADP). The Appellant, who was a Director at Adapalm, from August 2006 – June 2007, wrote a 10-page letter dated 31/8/2007, which was addressed to the Chairman Committee Investigating Non-Payment of Workers’ Salaries at Adapalm, Ohaji, and in the said letter titled MEMORANDUM SUBMITTED BY ME IN RESPECT OF YOUR ASSIGNMENT IN ADAPALM OHAJI, he concluded as follows –

In conclusion and in a nutshell, the former Ag. GM – Chief Don Okwu could not pay salaries because of the fraudulent practices instituted by him. Thank God that Imo State Government constituted this Committee. You are at liberty to probe the sale of the 600 tons of SPO in August 2006 which Don Ukwu refused our Auditor from cawing out. His refusal to execute Board Resolutions, including violation of White Paper directives, were all aimed at creating avenues for fraud. The result is the arrears of salaries. You may wish to advise the Government to clamp indefinite suspension on Chief Don Ukwu — and all the cabals mentioned in this Report while the Government institutes either Judicial Panel of Inquiry or Administrative Panel on Adapalm and offenders severely punished.

The Respondent got wind of the letter and asked his Solicitor to demand a “refutal, retraction or apology” from the Appellant. When that did not yield fruit, he filed an action at the Imo State High Court, wherein he claimed as follows:

(i) The sum of Fifty Million Naira being general damages for libel contained in the Defendant’s letter to the Committee investigating the non-payment of salaries at Adapalm (Nigeria) Limited, Ohaji, on the Claimant.

(ii) A perpetual injunction restraining the Defendant by himself, his agents, or privies from ever writing, publishing, or circulating such libelous matter of and concerning him.

The Respondent amended the initial Statement of Claim twice and he averred as follows in paragraphs 8-9 of the Further Amended Statement of Claim:

8. The Claimant pleads that surprisingly, apart from the Members of the Committee of Non-Payment of Salaries at Adapalm, the Defendant published and circulated the document to several and diverse persons, including Members of Imo State House of Assembly Committee on Agriculture, Staff of Adapalm Limited, Polycarp Attah and other associations that are associated with Adapalm. The Claimant claims that on the true construction of the words and expressions complained of the Defendant was actuated by malice and sought to ensure he was relieved of his appointment as Programme Manager of Imo ADP.
9. The Claimant further claims that by the publication of the unfounded and sweeping allegations, words or expressions of fraud, wickedness, dishonesty, immorality, self-enrichment, and or outright stealing, of and concerning him, he (the Claimant) has been greatly injured in his character, repute and estimation in the eyes of right thinking people of the World in that the Claimant has been exposed to public ridicule, reproach, opprobrium, odium and contempt, or conveyed an imputation on him, which is disparaging or injurious to him in his office, profession, calling, trade or business and these defamatory words and expression have no doubt embarrassed, not only the Claimant, but members of his family, friends and business associates irredeemably.

Appellant, as Defendant, averred in his Amended Statement of Defence that:

3. Save to admit that the Defendant submitted a Memorandum to the Committee investigating Non-payment of Workers’ Salaries at Adapalm (Nigeria) Ltd. It is denied that the said Memorandum bore or was understood to bear or was capable of bearing the meanings and/or effect set out in paragraphs 3(a-b), 4, 4(a), 5(a-c), 6(a-b), 8 and 9 of the Statement of Claim or any defamatory meaning at all. Apart from the said Committee investigating Non-payment of Workers’ Salaries at Adapalm, Defendant denies publishing and circulating any document defamatory of the Claimant to Polycarp Attah or to any other person. The said Polycarp Attah is not a staff of Adapalm and is unknown to the Defendant.

Trial commenced on 22/9/2010 before Ikpeama, J. In his testimony as CW1, the Respondent stated as follows with regards to the said Letter/Memorandum:

In my deposition, I referred to a document written by the Defendant. This is the photocopy of the document. I got this photocopy from one Polycarp Atta, Chairman Landlords Association of Adapalm. The original document is with the Chairman of Committee of Adapalm investigating non-payment of Staff Salaries.

When the Claimant’s Counsel applied to tender the said document in evidence, Defendant’s Counsel objected on the ground that the document is a photocopy, and the learned trial Judge, Ikpeama, J., adjourned the matter to 3/11/2010.

However, Ikpeama, J., got transferred from the Oguta Judicial Division, where the matter was being heard, and the suit commenced de novo before another Judge, Anunihu, J. On 25/6/2012, “Polycarp Attah” testified as CW1, and he identified a copy of the “defamatory document sent to [him] by the Defendant in his capacity as the Chairman of Adapalm Landlords Association”. The Defence Counsel made the same objection when he sought to tender the document in evidence, and in his ruling thereon, Anunihu, J., stated as follows:

“The document written by the Defendant on 31/8/2007 is a personal Memorandum written by him to the Committee investigating the non-payment of workers’ salaries in Adapalm. Unless and until the said document is submitted to the addressee, it remains a private document. It is only when it comes into the custody of the said Committee that it becomes a public document, and it is the copy delivered or deposited with the Committee that constitutes a public document.. The fact is that the document received or purportedly received by CW1 was adequately pleaded and is relevant to this Suit. I think it is admissible for that reason … I have no reason to doubt that the document sought to be tendered by CW1 is the document allegedly circulated to him by the Defendant. I also agree with Claimant’s Counsel that since the document sought to be tendered is the one belonging to CW1 as given to him, and CW1 being Claimant’s Witness, there was no need for issuance of Notice to Produce. Even if there was Notice, it will be to CW1 and not necessarily to the knowledge of the Defendant or his counsel. On the above premise, I hold that the Memorandum dated 31/8/2009 as sought to be tendered by CW1, being relevant to this case, is admissible in evidence. I overrule the objection of learned Counsel for the Defendant.”

Dissatisfied with the ruling, the Appellant appealed to the Court of Appeal and in its judgment delivered on 26/5/2016, the Court of Appeal held as follows –