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 –

“In all practical terms, the document written by the Defendant, who is Appellant in this appeal, on 31/8/2007, is a personal Memorandum written by him to the Committee investigating the non-payment of workers’ salaries in Adapalm. The document only becomes a public document when it comes into the custody of the said Committee. Paragraph 8 of the Respondent’s Statement of Claim avers that the offending document was circulated and given to this Witness, i.e., CW1, who is the Respondent’s Witness at the lower Court. The said Witness in his evidence stated that he received a copy of the said document from the Appellant as Defendant, presumably when copies were widely circulated by him. There is no gainsaying the fact that the document received by CW1 was adequately pleaded and is, of course, relevant to the suit and, therefore, admissible in evidence. In agreement with the lower trial Court on the issue, it would be absurd in the least to assume 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, including CW1 who had sought to tender it in evidence in the course of the trial. It would also be utterly uncalled for, to have asked for a certified true copy when the copy in the custody of CW1 was the copy circulated to him. In the final analysis, this appeal fails, and it is accordingly dismissed. The ruling of the learned trial Judge – delivered on 25/6/2012 is hereby affirmed.”

Further aggrieved, the Appellant appealed to this Court with a Notice of Appeal, which contains one Ground of Appeal, and the complaint therein is as follows:

ERROR IN LAW

The Court of Appeal erred in law when it held as follows:

“The said Witness in his evidence stated that he received a copy of the document from the Appellant as Defendant, presumably when copies were widely circulated by him. There is no gainsaying the fact that the document received by CW1 was adequately pleaded and is of course relevant to the suit and therefore admissible in evidence. In agreement with the lower trial Court on the issue, it would be absurd in the least to assume 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, including CW1 who had sought it in evidence in the course of trial. It would also be utterly uncalled for, to have asked for a certified true copy when the copy in the custody of CW1 was the copy circulated to him.”

PARTICULARS OF ERROR

(a) This holding is contrary to the clear pleading of the Claimant.

(b) The Court of Appeal was not entitled to any presumption.

(c) The document sought to be tendered is a photocopy of the document in the possession of an Imo State Government Agency, namely 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.

(d) The only admissible copy of the document was the certified true copy.

(e) Apart from being relevant, the document must meet other conditions to be admissible.

(f) The holding was perverse and occasioned a miscarriage of justice.

​A ground of appeal consists of error of law or of fact that an Appellant sees as a defect in the judgment that he is appealing against, and there is a truly clear distinction between a ground of law and a ground of fact or mixed law and fact. A ground of appeal raising a question of law does not require leave to file it. But, where it involves questions of fact or of mixed law and fact, leave to appeal must be obtained from the Court of Appeal or from this Court, and the failure to obtain the requisite leave renders the appeal filed in this Court incompetent – Irhabor V. Ogaiamien (1999) 8 NWLR (Pt. 616) 517, Uchendu V. Ogboni (1999) 5 NWLR (Pt. 603) 337, Akpasubi V. Umweni (1982) 11 SC 113.

In other words, the appellate jurisdiction of this Court on questions of fact only exists where there has been leave of the Court of Appeal or of this Court, and where question of fact has been brought before this Court without leave, the Court has no jurisdiction – see Akpasubi V. Umweni (supra), Ukpong V. Commissioner for Finance and Econ. Dev. (2006) 19 NWLR (Pt. 1013) 187.

Now, looking at the facts of this case and the decision appealed against, the question that must be determined before anything else is whether the sole Ground of Appeal in the Notice of Appeal is a ground of law or a ground of fact or of mixed law and fact, which requires leave, for this Court to have jurisdiction.

​Let me quickly say that this is not an easy question to determine because there is a thin line that runs between the said categories. However, this Court has laid down guidelines in a number of cases, which set parameters for finding answers to the said question – see Dairo V. Union Bank (2007) 16 NWLR (Pt. 1059) 99, wherein this Court listed the following principles to serve as a guide:

– Where the Court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the Respondents was based, such a ground of appeal is a ground of mixed law and fact – Maigoro V. Garba (1999) 10 NWLR (Pt. 624) 555.

– A ground of appeal, which challenges the findings of fact made by the trial Court or involves issues of law and fact, is a ground of mixed law and fact- Maigoro V. Garba(supra).

– Where evaluation of facts established by the trial Court before the law is applied is under attack or question, the ground of appeal is one of mixed law and fact – Maigoro V. Garba (supra).

– Where the evaluation of evidence tendered at the trial is exclusively questioned, it is a ground of fact simpliciter – Ogbechie V. Onochie (1986) 2 NWLR (Pt. 23) 484.

– Where it is alleged that the trial Court or an appellate Court misunderstood the law or misapplied the law to admitted or proved facts, such a ground of appeal is one of law simpliciter- Nwadike & Ors. V. Ibekwe & Ors. (1987) 12 SC (Pt. 1) 164.

– It is a ground of law if the Court took into account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or, if although in applying the correct criteria, it gave wrong weight to one or more of the relevant factors -O’ Kelly v. Trusthouse Forte P.L.C. (1983) 2 All ER 456 at 486; Nwadike & Ors. V. Ibekwe & Ors. (supra).

– Several issues that can be raised on legal interpretation of deeds, documents, term of art, words or phrases, and inferences drawn are grounds of law – Ogbechie V. Onochie (supra).

– It is a ground of law where the ground deals merely with a matter of inference even if it is limited to admitted or proved and accepted facts – Nwadike V. Ibekwe supra.

– Where it is alleged that there was no evidence or no admissible evidence upon which a finding or decision was based, this is regarded as a ground of law – see Ogbechie V. Onochie (supra) wherein Eso, JSC, citing an article by C. T Emery in Vol. 100 LQR, held that- “If the Tribunal purports to find that a particular event occurred although it is seized of no admissible evidence that the event did in fact occur, it is question of law”.

See also Metal Constr. (W.A.) Ltd. V. Migliore (1990) 1 NWLR (Pt. 126) 299, wherein this Court per Obaseki, JSC, made the distinction clear, as follows –

“What are the constituent elements in the concept of question of law and in the concept of question of fact? In other words, what is the definition of a question of law? And also, what is the definition of a question of fact? A profound knowledge of their meanings is necessary as these questions constitute the entire burden Judges and Counsel must contend with in all litigated matters or controversies. In pleadings and litigation, the facts are “the circumstances deeds, saving, and inferences drawn from them as distinct from the legal consequences, rules applicable thereto and legal conclusions”. Matters of fact are accordingly matters, circumstances, acts, and events which in legal controversy are determined by admissions or by evidence as distinct from matters of law, which are determined by authority and argument. A question of fact may be any question, which has to be determined by admission or by evidence rather than by authority and argument, and by the Jury or Judge sitting as Jury or any question, which is not determined by a rule of law but depends on the circumstances. Such a question is distinct from a question of law and from a question of judicial discretion, which is concerned with a decision of what is right and reasonable or just and equitable in the circumstances, There is no doubt that in litigation or legal inquiries, this distinction is frequently involved. A matter of fact or a question of fact concerns the existence or some state at some past time relevant to the enquiry of some person or thing or state of affairs ascertainable by the senses or by inference from conduct or happenings. Matters of fact include e.g., time, place, weather, light, speed, colour, identification of persons, what was said, done, heard, and so on and such inferred facts as a person’s intention, sanity, state of mind, knowledge, and the like. Matters of fact have to be ascertained, failing admission, by competent and relevant evidence given by witnesses, experts or provided by deeds, records, reports, etc. Matters of law or questions of law, on the other hand, include what are the rules of law applicable to some issues, what their proper formulations are, and what they require or permit. Matters of law have to be ascertained, failing admission, by interpretation of statutes, cases and other authoritative sources of law aided by argument of counsel to Parties in the litigation. The interpretation of documents is always a question of law. An appeal on matters of fact allows investigation at the hearing of the appeal of the evidence and the proper inferences from it whereas an appeal on a point of law limits consideration of the appeal to such questions as to whether facts admitted or held proved, justify, or permit by rules of Court a particular decision or disposal of the case before the Court. In a secondary sense, any matter to be decided on evidence and inference therefrom is a matter of fact and other matters are matters of law. A decision of a trial Judge is normally a mixed finding.”

​So, in pleadings and litigation, the facts are the circumstances and inferences drawn from them, as distinct from the legal consequences, the applicable rules, and legal conclusions. Matters of fact must be established by competent and relevant evidence from witnesses, etc., and matters of law must be determined by authoritative sources of law aided by argument of counsel in the litigation.

Above all, an appeal on matters of fact makes room for the investigation at the hearing of the appeal of the evidence and the proper inferences from it – see Metal Construction (W.A.) Ltd. V. Migliore (supra). The subject matter of the libel action that led to this appeal is the letter written by Appellant to the Chairman of the Committee investigating non-payment of salaries at Adapalm.

It is clear from their pleadings (reproduced earlier) that the Parties joined issues on the fact that apart from the Members of the Committee, the Appellant published and circulated the letter to other persons, including Polycarp Attah. The Appellant denied publishing and circulating the letter to Polycarp Attah, or to any other person, and denied any knowledge of the said Polycarp Attah.

​The said Polycarp Attah, who testified for the Respondent as CW1, said Appellant sent him “the defamatory document’, and when he applied to tender it in evidence, the Appellant’s Counsel objected to its admissibility because –

The document sought to be tendered is a photocopy. The whereabouts of the original has not been explained to make the document admissible as secondary evidence. By paragraph 3 of the Further Amended Statement of Claim, the fact relating to the document was pleaded. The fact so pleaded makes the document a public document. By Section 91 of the Evidence Act, 2011, the Claimant is required to give Notice to Produce to the addressee of the document, namely, the Chairman investigating non-payment of workers’ salary at Adapalm. So, if the Notice had been given, the only copy that will be admissible of the document will be a certified true copy. A look at the document does not show any nexus with the Witness. It does not show it was copied to him. The Further Amended Statement of Claim describes the Witness as a staff of Adapalm while in his evidence, he claims to be the Chairman of the Landlords Association.

​The trial Court overruled the objection and held that the letter was admissible because it was “a personal memorandum”, written by the Appellant, therefore, it is “a private document”, which does not require certification. In affirming the trial Court’s finding, the Court of Appeal made the comment, which is the crux of the Appellant’s complaint in the Ground of Appeal, particularly, where it said:

“The said Witness in his evidence stated that he received a copy of the document from the Appellant as Defendant, presumably, when copies were widely circulated by him.”

In the Particulars of Error, the Appellant specified that “this holding is contrary to the clear pleading of the Claimant”; and the Court of Appeal “was not entitled to any presumption”. The Ground of Appeal is a ground of mixed law and fact, and I am strengthened in this view by the Appellant’s argument in his Brief that:

“It is our contention that the Court of Appeal was bound by the facts before it and was not competent to presume the existence of facts or make a case for the Respondent as it did at page 189 of the Records”.

​Obviously, to resolve the issue of whether the said letter is a private document or a public document, this Court would have to carry out an investigation of the pleadings vis-a-vis the evidence to ascertain the exact nature of the said letter, before considering the question of whether it is a private or a public document.

The Ground of Appeal in the Notice of Appeal filed by the Appellant is, without question, a ground of mixed law and fact. He did not obtain leave from the Court of Appeal or this Court before filing it. With no ground of appeal to sustain the appeal, the appeal must be struck out, and it is, hereby, struck out.

I make no order as to costs.

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SC.811/2016