A. C. Agonsi V. Chief Don Okwu (2016) LLJR-CA

LawGlobal-Hub Lead Judgment Report

FREDERICK OZIAKPONO OHO, J.C.A.

In Suit No: HOG/68/2007 the Plaintiff’s Statement of Claim at Paragraphs 9 (1), (i) was endorsed with the Plaintiffs Claims as follows:
“Plaintiff further claims that 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 (Plaintiff) has been greatly injured in his character, repute and estimation in the eyes of right thinking people of the world in that the Plaintiff has been exposed to public ridicule, reproach, opprobrium, odium and contempt and these defamatory words and expressions have no doubt embarrassed not only the Plaintiff but members of his family, friends and business associates irredeemably.
1. WHEREFORE the Plaintiff claims against the Defendant as follows;
(i) The sum of Fifty Million (N50,000,000.00) Naira being general damages for libel contained in the Defendant’s letter to the Panel investigating the non-payment of worker’s salaries at Adapalm (Nigeria) Limited, Ohaji on the

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Plaintiff.
(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.

Pleadings were ordered and duly filed by both parties. The facts of the case as disclosed by the pleadings may be summarized from the view point of the Appellant as follow:
The Claimant commenced this action against the Defendant for an alleged libel contained in a document, a memorandum submitted to the panel set up by the Government of Imo State to investigate the non-payment of staff salaries of Adapalm; a parastatal of the Government of Imo State. When the trial of the suit commenced before IKPEAMA, J the Claimant sought to tender a photocopy of the said memorandum when the Defendant, who is Appellant in this Appeal, raised an objection to the admissibility of the document. That remained the position until the trial Judge was transferred to another Judicial Division from the Oguta Judicial Division. The suit eventually commenced de novo before a newly transferred Judge, ANUNIHU, J after amendments had been made to the pleadings of the parties. See pages

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110-125 of the Records of Appeal. Hearing of the matter resumed once again on the 25th day of June, 2012, when the Claimant called one Polycarp Attah as CW1 and the same photocopy of the memorandum was sought, once again to be tendered through the said witness. Learned Defense Counsel as he did before, objected to the admissibility of the document on the ground that the document sought to be tendered was a photocopy with no foundations having been laid for its admissibility. In addition, that even if such foundation was laid, that as a Public Document only a certified true copy of the original was admissible. The Learned Trial Judge in a considered Ruling on the 25-6-2012 dismissed the objection raised by Defendant and proceeded to admit the document as Exhibit A.

Dissatisfied with the decision of the learned trial Court, the Defendant, who is hereinafter referred to as the Appellant has appealed to this Court, vide his Notice of Appeal 25-7-2012. There are two (2) Grounds of Appeal which are hereby reproduced here as follows:
GROUNDS OF APPEAL:
1. ERROR IN LAW:
The Learned Trial Judge erred in law when he held as follows:

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I am of the understanding that 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 salary 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 the public document.
PARTICULARS OF ERROR;
(a) The document in question was a photocopy of the alleged memorandum submitted by the Appellant to the committee investigating non-payment of workers salary in Adapalm.
(b) The document was a public document for all purposes.
(c) The holding is perverse and occasioned a miscarriage of justice.
2. ERROR IN LAW;
The Learned Trial Judge erred in Law when he held as follows:
Paragraph 8 of the extant Statement of Claim in this Suit avers that the offending document was circulated and given to this witness. The witness in question in his evidence stated that he received a copy of the said document from

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the Defendant. Whether the Defendant actually gave a copy of the document to CW1 as the witness claimed is not yet the issue. 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 cannot in the wildest imagination presume that the same copy of the document given to the committee is the copy given to the other people to whom the document was circulated. Circulation of a document in my view entails reproducing copies of same and distributing to people. At this juncture, 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 the Claimants Counsel that since the document sought to be tendered is the one belonging to CW1 as given to him, and CW1 being Claimants 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.

PARTICULARS OF ERROR;
(a) The document sought to be tendered was a photocopy and no account was given as

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