CHUKWUDI OKOLI ACHU v. CHIEF (DR.) PAUL OKONKWO (MFR) (2016)

CHUKWUDI OKOLI ACHU v. CHIEF (DR.) PAUL OKONKWO (MFR)

(2016)LCN/8528(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of April, 2016

CA/E/198/2012

RATIO

EVIDENCE: ESTOPPEL; NATURE AND KINDS OF ESTOPPEL
In law, estoppel is an admission or something which the law views as equivalent of an admission. By its very nature, it is so important and conclusive that the party whom it affects will not be allowed to plead against it or adduce evidence to contradict it. Yoye v. Olubode (1974) All NLR 657; Falaye v. Otakpo (1995) 3 NWLR (pt. 381) 1 at 28 ? 29 (SC); Yusuf v. Adegoke (2007) 11 NWLR (pt. 1045) 332 at 361 (SC); Omiyale v. Macauley (2009) 7 NWLR (pt. 1141) 597 (SC); Ukaegbu v. Ugoji (1991) 6 NWLR (pt. 196) 127; Koiki v. Magnusson (2001) FWLR (pt. 63) 167; Cole v. Jibunoh (2016) 1 SCNJ (pt. 1) 93 at 112. It is a common law principle which has gained statutory acceptance in Nigeria, such as Section 169 of the Evidence Act No. 18 of 2011. It forbids a person or party who having shown that he agrees with a state of affairs, to later turn round and disclaim his act or omission. Hence both in common and statutory law, such conduct is not permitted.
There are principally, two kinds of estoppel. In Osunrinde & Ors v. Ajamogun & Ors (1992) 7 SCNJ 79; (1992) LPELR – 2819 SC at 39, his Lordship, Ogundare, JSC (now of blessed memory) succinctly stated, to wit:
Now, there are two kinds of estoppel by record inter partes or per rem judicatam as it is generally known. The first is usually referred to as ?cause of action estoppel? and it occurs where the cause of action is merged in the judgment, that is transit in rem judicatam. There is however, a second kind of estoppel inter partes and this usually occurs where an issue has earlier on been adjudicated upon by a Court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances; issue estoppel arises.
Furthermore, on the effect of estoppel, his Lordship, at page 46 of the report, stated:
“The general rule of law undoubtedly is that no person is to be adversely affected by a judgment in an action to which he was not a party, because of the injustice in deciding an issue against him in his absence. But this general rule admits of two exceptions, one is that a person who is in privity with the parties, a privy as he is called is bound equally with the parties, in which case, he is estopped by res judicata: the other is that a person may have so acted as to preclude himself from challenging the judgment in which case he is estopped by his conduct.
Indisputably, for the doctrine of estoppel to operate in any particular case, it must be established that,
(i) The parties (or their privies as the case may be) in the previous case are the same as in the present case;
(ii) The issues and the subject matter or res litigated upon in the previous case is the same as in the subsequent or present case;
(iii) The previous action must have been determined by a Court of competent jurisdiction;
(iv) The said decision in the previous case, must have finally decided the issues between the parties.
The four fold conditions must co-exist, for the invocation and applicability of the doctrine of estoppel in any particular matter. PER TOM SHAIBU YAKUBU, J.C.A.
TORT: LIBEL; ELEMENTS OF PROVING LIBEL
In order to prove a libellous publication, and sustain an action for libel, the plaintiff must establish that:
(i) There was a publication of the offending article or letter;
(ii) The publication was in writing;
(iii) The publication was with respect to the plaintiff;
(iv) The publication was false and defamatory of the plaintiff;
(v) The publication was made by the defendant;
(vi) The publication was made to another person(s) apart from the plaintiff and
(vii) The defendant had no justification or lawful excuse for the publication against or about the plaintiff.
Guardian Newspapers Ltd & Anor v. Pastor Ajeh (2011) 10 NWLR (pt. 1256) 574 at 588 ? 589 (SC); (2011) LPELR – 234 (SC); Iloabachie v. Iloabachie (2005) 5 SCNJ 84; (2005) 5 NWLR (pt. 656) 178; (2005) 35 WRN 1; Amalgamated Press of Nig. Ltd v. Chief Festus Sam Okotie ? Eboh (1963) 2 SCNLR 270.
The Supreme Court per his Lordship A. Obaseki, JSC, in Chief O. N. Nsirim v. E. A. Nsirim (1990) 3 NWLR (pt. 138) 255, on the essence of publication of an offending article or letter, succinctly stated, thus:
By publication is meant the making known of the defamatory matter to some person other than the person to whom it is written. The writing of a libel to the person or party libelled does not constitute publication for the purpose of a civil action. ….. It is the reduction of the libellous matter to writing and its delivery to any person other than the person injuriously affected thereby that is publication. The name of the person to whom delivery of the libellous matter was made, must be pleaded.
In his own contribution to the lead judgment (Nsirim v. Nsirim) supra, his Lordship, Belgore, JSC (as he then was) stated that:
The cardinal principle of libel in law is that there must be publication of the libellous matter to a third person other than the person libelled, this is because a persons reputation is not based on the good opinion he has of himself but the estimation in which others hold him.
Furthermore the Supreme Court in Nsirim v. Nsirim (supra) reiterated that publication of a defamatory material is not merely that the defamation was written of the plaintiff, but that it was published or conveyed to a third person; who will give such evidence. See also The Registered Trustees of the Rosicrucian Order (ARMORC) Nigeria v. Henry Awoniyi (1994) 7 – 8 SCNJ (pt. II) 390 at 419, 427. PER TOM SHAIBU YAKUBU, J.C.A.
LIBEL: HOW THE COURT DETERMINES IF A PUBLICATION IS LIBELOUS
The law is settled that it is the general impression conveyed by the publication complained of that has to be considered and not the meaning of each word under analysis taken out of context, that is, the whole article should be considered and not just excerpts therefrom per Lord Devlin in Lewis v. Daily Telegraph Ltd (1964) A. C. 234 at 285. The publication must be construed as a whole. J. I. Okolo v. Midwest Newspapers Corp. (1977) 1 SC 33 at 41 – 43.
Therefore, where the words are ordinary English words and are plain and unambiguous in their meaning …… it would be usurping the province of the jury or the judge ……. to call a witness to say what he understood the word to mean per Lord Denning, M. R. in Slim v. Daily Telegraph Ltd & Ors (1968) 1 All E. R. 497 at 502. Further see Sketch v. Ajagbemokefere (1986) 1 NWLR (pt. 100) 678 at 709 per Agbaje, JSC. So the question to be considered is:
………. would the words tend to lower the plaintiff in the estimation of right-thinking members of society.? Thus, in the final analysis, whether the statement complained of is defamatory or not will surely depend upon the probabilities of each individual case and upon the natural tendency of the publication having regard to the surrounding circumstancesÂ – per Oputa, JSC in Fred Egbe v. Hon. Justice J. A. Adefarasin (1987) 1 SC 1 at 45.
On the part of the publisher of the publication, it is the law that if he made the publication, bonafide, on a subject matter in which he has an interest and which the person to whom he is communicating, has an equal or corresponding interest or duty, albeit that the publication may contain a sting of libel, such a publication would be considered as privileged. However, if the plaintiff feels that the publication was malicious of him, then the plaintiff must adduce evidence to establish the existence of malice. See Gatley on Libel and Slander, 7th Edition, at page 6; Prof N. Adeniji & Anor v. Prof B. Fetuga (1990) 5 NWLR (pt. 150) 370 at 385; Adam v. Ward (1917) A. C. 318. PER TOM SHAIBU YAKUBU, J.C.A.

Before Their Lordships

MASSOUD ABDULRAHMAN OREDOLAJustice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBUJustice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMUJustice of The Court of Appeal of Nigeria

Between

CHUKWUDI OKOLI ACHU – Appellant(s)

AND

CHIEF (DR.) PAUL OKONKWO (MFR) – Respondent(s)

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment):Â The appellant and one Uchenna Nwankwo Onwuneme were involved in an exchange arrangement with one Andrew with respect to a certain plot of land upon which the Osisi-Oguagbaka family members had lived, died and were buried. The appellant and Uchenna Nwankwo Onwuneme were sued by one Chief Oliver Okeke and Andrew Nwankwo for themselves and on behalf of Osisi-Oguagbaka family of Ozalla Isuofia, at the High Court of Justice of Anambra State, holden at Ekwulobia, in order to invalidate the said transaction between the appellant; Uchenna Nwankwo Onwuneme and one Andrew aforementioned. During the pendency of that suit, the appellant wrote a letter dated 4th June, 2008 which he addressed to Ozalla Village Union Isuofia, Aguata Local Goverment Area. The said letter was titled to wit: ?PLEASE HELP ME BEG CHIEF PAUL OKONKWO (OJI) TO LET ME AND UCHENNA NWANKWO ONWUNEME LIVE IN PEACE LIKE HIM?.

?The said letter was circulated and published to all branches of Isuofia Progressive Union Federated; Officers and members of Ucheora Age Grade, Ametete Kindred, Enugwu-Ozalla

Kindred. The respondent felt that the contents of the letter aforesaid had maligned and intimidated him. He therefore filed an action against the appellant at the Anambra State High Court of Justice, holden at Ekwulobia. He claimed N500,000,000 (Five Hundred Million Naira) General Damages for libel and An order of Court compelling the defendant to tender a public apology to him, to be published full page in three National Dailies (Guardian, Champion and Sun Newspapers).

?The appellant resisted the claim. Pleadings were filed and exchanged between the parties. Both of them led evidence and tendered into evidence, some documentary exhibits. Learned counsel to the parties, filed and exchanged written addresses. The learned trial judge, in his judgment, found for the respondent and awarded the sum of N50,000,000 (Fifty Million Naira) damages for libel, to him. Furthermore, it was ordered that the appellant renders a written apology to the respondent, which shall be published, half page, in the Guardian and Champion Newspapers.

The appellant, piqued with the trial judge?s decision against him, approached this Court, to ventilate his grouch, anchored

on a notice of appeal, which originally contained two grounds of appeal. The appellant, thereafter and with the leave of this Court filed an Amended Notice and Five (5) Grounds of Appeal.

In order to effectively prosecute the appeal, the appellant?s brief of argument, prepared by G. B. Obi, Esq., which was filed on 11th February, 2013 was deemed as properly filed and served on 12th February, 2013. In it, three issues were nominated for the resolution of the appeal, to wit:
“(i) Whether the trial Court was right to have discountenanced Exhibits D1, D3, D3, D4, D5 and D6 on the basis that they are either not originals, properly certified true copies or material/relevant for the determination of the case (Ground 2).
(ii) Whether the High Court was right to have assumed jurisdiction to hear the suit notwithstanding exhibits D4 and D5 and awarding the sum of N50 Million as damages to the respondent. (Ground 4)
(iii) Whether the decision of the Court that Exhibit P1 is libellous is borne out by the pleading and evidence on record. (Grounds 1, 3 and 5).”

?The respondent?s brief of argument, prepared by B. S. Nwankwo, Esq., was dated

5th March, 2013 and filed on 7th March, 2013. He adopted the three issues formulated by the appellant?s counsel for the determination of the appeal. He however, suggested an additional issue as a follow up to the first issue, thus:-
?Even if the trial High Court had not discountenanced Exhibits D1, D2, D3, D4, D5 and D6, would the judgment of the said trial High Court not be the same??

The Appellant?s Reply brief of argument, dated and filed on 6th June, 2013 was deemed as properly filed and served on 18th June, 2013.

Upon my perusal of the parties? pleadings, the oral and documentary evidence led at the trial Court, the judgment of the said Court, the grounds of appeal and the issues formulated for the determination of the appeal, I am satisfied that the three issues nominated by the appellant?s counsel, suffice for the resolution of this appeal. I shall take and consider issues 1 and 2 together and thereafter consider issue 3 separately.

Issues 1 and 2
It is the appellant?s contention that Exhibits D1, D2 and D3 being Court processes with respect to the suit No. AG/33/08, which were prepared

and executed in several parts were admissible in evidence under Sections 85 and 86(1) (2) (3) (4) of the Evidence Act and that they are primary evidence, hence they needed no certification. Reliance was placed on Shell Pet. Dev. Co. v. Lawson ? Jack (1998) 4 NWLR (pt. 545) 249 at 268 (CA) and that the said exhibits are ?duplicate originals? as defined by the Supreme Court in Nwobodo v. Onoh (1984) 1 All NLR 1 at 17 ? 18.

With respect to Exhibit D5, the appellant?s learned counsel submitted that the certification of the same was substantially in compliance with Section 104 read together with Section 168(1) of the Evidence Act. He relied on Daggash v. Bulama (2004) 14 NWLR (pt. 892) 144 at 197 (CA). He furthermore, contended that Exhibit D4 which is a certified true copy of the proceedings in Suit No. A/210/2008 wherein the respondent gave evidence as PW1 was material to the determination of the respondent?s claim, more so as the appellant asserted that there was a prior judgment of the High Court, Awka between the parties on the subject matter and relief as in the present suit.

Arguing issue 2, the appellant?s

learned counsel, contended that the respondent was privy to the Suit No. A/210/2008 ? Exhibit D4 and that the pleading of the appellant and his evidence as DW1 thereon as shown at paragraph 7a of the amended statement of defence and paragraphs 7 ? 13 of the appellant?s written deposition were not challenged by the respondent. He insisted that with the subsistence of Exhibits D4 and D5, the respondent is estopped by the doctrine of issue estoppel and estoppel by conduct from relitigating on the issue of libel against him in the present action, which had been pronounced upon by a competent Court with jurisdiction in Exhibits D4 and D5. He referred to Falaye v. Otakpo (1995) 3 NWLR (pt. 381) 1 at 28 ? 29 (SC); Yusuf v. Adegoke (2007) 11 NWLR (pt. 1045) 332 at 361 (SC); Omiyale v. Macaulay (2009) 7 NWLR (pt. 1141) 597 at 602 (SC).

He contended furthermore that a plaintiff who took part in a proceeding which affected his interest in the said proceeding is bound by the decision in such a proceeding. He placed reliance on Udeorah v. Nwakonobi (2003) 4 NWLR (pt. 811) 643 at 668 (CA); Oke & Anor v. Atoloye & Ors (1986) NSCC vol. 17

(pt. 1) 165; (1986) 1 NWLR (pt. 15) 241 (SC). Learned appellant?s counsel insisted that since the question of Exhibit P1 being defamatory or not was pronounced upon by a Court of co-ordinate jurisdiction, vide Exhibit D5, the respondent was being trickish in the present action instituted in his personal name whereas the suit in Exhibit D5 was instituted in the name of the respondent?s company, with respect to the same Exhibit P1. He placed reliance on Abubakar v. B. O. & A. P. Ltd (2007) 18 NWLR (pt. 1066) 309 at 373 ? 374 (SC).

It is the further contention of appellant?s learned counsel that even if Exhibit P1 was libellous, the award of N50 Million as damages to the respondent was excessive and arbitrary. According to him, there was no independent evidence by a witness with respect to the status of the respondent and that the award of damages by the trial judge was premised solely on the respondent?s estimation of himself. He referred to Daily Times v. Emezuom (1990) 2 NWLR (PT. 132) 340 at 355 (CA).

Learned respondent?s counsel arguing per contra, on issue 1, submitted that since Exhibits D1, D2 and D3 are

public documents which were uncertified Court processes, they were indisputably inadmissible in evidence. He also contended that Exhibits D4 and D5 having not been properly certified in accordance with Section 111(1) now Section 104 of the Evidence Act, 2011, they were inadmissible in evidence. He referred to the decision of this Court in House of Representatives v. S. P. D. C. N. (2010) 11 NWLR (pt. 1205) 252 and of the Supreme Court?s decisions in TABK Investment Ltd v. Guaranty Trust Bank Plc (2011) 17 NWLR (pt. 1276) 240 (SC); Minister of Lands Western Nigeria v. Azikiwe (1969) 1 All NLR 49; Araka v. Egbue (2003) 17 NWLR (pt. 848) 1; Chief Philip O. Anatogu & Ors. v. H. R. H. Igwe Iweka II & Ors. (1995) 9 SCNJ at 15 ? 16.

?Learned respondent?s counsel contended that Section 168(1) of the Evidence Act would not avail the appellant with respect to a presumption of regularity touching on Exhibit D5, which on its face did not state the name of the Public Officer ? the Assistant Chief Registrar who allegedly certified the said Exhibit D5. He insisted that the exclusion of Exhibits D1 ? D6, by virtue of Section 251(2) of

the Evidence Act, 2011 would not in itself lead to a reversal of the trial Court?s decision because such exclusion was not demonstrated to have affected the outcome of the proceedings, more so, as the appellant did not deny writing Exhibit P1 which was libellous of the respondent.

Responding to issue 2, the respondent?s learned counsel submitted that admittedly, that the Suit No. A/210/2008 was instituted in the name of Pokobros Group (West Africa) Ltd against the appellant as the defendant therein and the said action was determined at the Awka High Court of Justice. He however submitted that the said action had different parties, issues and relief vis-a-vis the present action at the instance of the respondent against the appellant. He argued to the effect that the said Suit No. A/210/2008 related to a claim of billions of naira for injurious falsehood and deceit against the appellant and that whereas, the Suit No. A/210/2008 was a suit initiated by a limited liability company (a corporate suit) for losses suffered by the company as a result of the publication of Exhibit P1, the action which led to this appeal, was a personal action, premised

on libel. And that a limited liability company being an artificial person and not a natural person, who has emotions and feelings, cannot maintain an action in libel. He referred to Registered Trustees of ARMORC v. Awoniyi & Ors. (1994) 7 NWLR (pt. 335) 154 at 189. He submitted that both the present action and the one in Suit No. A/210/2008 were in the same year. Therefore, according to him, the doctrine of estoppel is inapplicable, in the circumstances of this case.

With respect to the award of damages, he submitted that where the pride and character of the plaintiff was unjustifiably invaded by a libellous publication by a defendant, the person defamed is entitled to some compensation for the injury on his character and that the assessment of such damages is usually subjective. He relied on Mr. Abiodun Oduwole & Ors v. Prof Tam David West (2010) 10 NWLR (pt. 1203) 598 (SC). He contended that since the appellant wrote Exhibit P1 while the Suit No AG/33/2008 was pending because the respondent was a witness in that suit, the learned trial judge rightly deprecated the appellant?s conduct and awarded the sum of N50m as damages against him.<br< p=””>

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Resolution of issues 1 and 2
Unarguably, Exhibits D1, D2, D3, D4 and D5 are public documents by virtue of Section 102(a)(iii) of the Evidence Act, 2011 and before they can be admissible in evidence, they must be certified in accordance with the provisions of Section 104 (1) (2) and (3) of the Evidence Act, 2011, which provides, inter alia:
Section 104 ?(1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it, as the case may be.
(2) The certificate mentioned in Subsection (1) of this section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
(3) An officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents

within the meaning of this section.?
The processes involved in certifying public documents cannot be taken for granted. The act of certification is fundamental to every public document, if it is intended to be admitted into evidence in a judicial proceedings because certification clothes such public documents with authenticity and credibility. The word ?certify? and its essence was explained by the apex Court in S. A. Adeyefa & Ors V. Bello Bamgboye (2013) LPELR ? 19891 (SC), where Fabiyi, JSC said, to wit:
“…Certify, put simply, means to authenticate or vouch for a thing in writing. It may also be said to mean ?to attest as being true or as represented?…By virtue of Section 110 of the Evidence Act, 1990 public documents must be duly certified before they can be admissible in evidence. This is a pronouncement of the Court of Appeal per Tobi, JCA (as he then was) in Aina V. Jinadu (1992) 4 NWLR (pt. 233) 91 at 107. It was well made and I endorse same without any shred of hesitation.?
?Earlier on in the same ruling, his lordship said:
?I think that it will not be out of place to state

another principle which I strongly feel is paramount in seeking to tender documents as addition/further evidence, as in this case. It is that such document must satisfy the dictates of the law of evidence. It is not an avenue for putting in a public document which ordinarily must be certified, but was not duly certified, as provided by the law.?
In his contribution, his Lordship, Ariwola, JSC opined that:
?The law is clear on this issue, that every public officer having the custody of a public document which any person has a right to inspect shall give that person, on demand, a copy of it in payment of prescribed legal fees, with a certification at the foot of the document, that it is a true copy of its original. The certification expected to be endorsed on the said copy shall be dated and subscribed by such officer with his name and his official title and shall be sealed. The copy of such document so certified are referred to as certified copies admissible in Court. See; Section 104 of the Evidence Act. Justus Nwabuoku & Ors V. Francis Onquordi & Ors (2006) 8 ? 9 SCM 247; (2006) 5 SC (pt. III) 03; (2006) LPELR

2082.?
Further see: TABK Investment Ltd & Anor V. Guaranty Trust Bank Plc (2011) 1 SCM 201 at 210; (2011) 17 NWLR (pt. 1276) 422 (SC); Patrick Aririguzo KSM V. Dr. Sylvanus Amaechi (2014) LPELR ? 22829 (CA); Tekebo V. Adegbite (2012) LPELR ? 7937 (CA); Ahmed & Ors V. Central Bank of Nigeria (2013) 6 SCNJ (pt. 1) 54; (2013) LPELR ? 20744 (SC) all to the effect that a certified true copy of a public document ex facie, will have on it, an endorsement or certificate that it is a true copy of the document in question; the endorsement or certificate is dated and signed by the officer responsible for the said certification of the public document with his name and official title stated thereon. Thus, whereas the due certification on a public document authenticates it and gives it credibility, the non?certification of a public document denies it of being presumed regular and no probative value can be ascribed to it.

?I have myself perused Exhibits D1, D2, D3, D4, D5 and D6. I found that Exhibit D1 which represents the claim in Suit No. AG/33/08 at the Anambra State High Court, Ekwulobia, between Chief Oliver Okeke and

Andrew Nwankwo Onwuneme, for themselves and on behalf of Osisi ? Oguagbaka family of Ozalla Isuofia and Uchenna Nwankwo Onwuneme; was not certified at all. So also, Exhibit D2 which is the Deposition of Chief (Dr.) Paul Amanchukwu Okonkwo, MFR, JP, PHC (FCIM, FNISM, MIP ? LONDON) in respect of Suit No. AG/33/2008, was not certified at all. Furthermore, Exhibit D3, which is the Further Affidavit of Andrew Nwankwo ? Onwuneme, in respect of Suit No. AG/33/2008, was not certified at all.

However, Exhibit D4 which is the record of proceedings in respect of the Suit No. A/210/2008 was duly certified by one ?Ezeudu A. N. (Mrs.) Assist. Chief Registrar, Awka Judicial Division.? On the other hand, Exhibit D5 which is the judgment in respect of the same Suit No. A/210/2008 between Pokobros Group (West Africa) Ltd and Chukwudi Achu (the appellant herein) holden at the High Court of Justice, Awka; was allegedly certified by an unnamed Assistant Chief Registrar I, of Awka Judicial Division.

?My Lords, it is glaring to me that apart from Exhibit D4 which was duly certified in accordance with Section 104 (1) (2) and (3) of the Evidence

Act, 2011; the other public documents represented by Exhibits D1, D2, D3 and D5 were not so certified in compliance with the aforementioned provisions of the Evidence Act, 2011. Therefore, I have no difficulty in agreeing with the learned trial judge when he came to the decision that ?Exhibits D1, D3 and D5 being public documents, and having fallen short of the above stated mandatory requirements of the law, are not admissible in evidence.?

?I should say that Exhibit D2, from my findings, suffers the same fate as Exhibits D1, D3 and D5. With respect to Exhibit D4, it shows nothing more than that there was an action vide the Suit No. A/210/2008 between Pokobros Group (West Africa) Ltd and Chukwudi Achu, (the appellant herein) holden at the High Court of Justice, Awka and that the respondent testified at the proceedings of 14th July, 2010 as PW1 and said he is the Chairman and Managing Director of the Pokobros Group (West Africa) Ltd. He also testified to the fact that he filed a deposition in the suit, and a letter dated 4th June, 2008 written by the defendant (appellant herein). The said letter was admitted into evidence and marked as Exhibit

A. The deposition in question and Exhibit A admitted into evidence in the Suit A/210/2008, were not admitted into evidence at the trial in the Suit No. AG/46/2008 which gave rise to this appeal. Therefore, there is no nexus, connecting the facts in the Suit No. A/210/2008 (Exhibit D4) with the Suit No. AG/46/2008, which led to this appeal. The only plausible inference to be drawn from the two suits, is that whilst the Suit No. A/210/2008 was holding at the High Court of Justice, Awka; the Suit No. AG/46/2008, held at the High Court of Justice, Ekwulobia. Furthermore, whilst the Suit No. A/210/2008 ? Exhibit D4, had the judgment on it, delivered by C. A. Emembolu, J., on 30th September, 2010; the judgment in respect of the Suit No. AG/46/2008, was determined by Nwabueze Agbata, J., on 23rd April, 2012. See pages 126 ? 135 of the record of appeal. The judgment in respect of Suit No. AG/46/2008 is known whereas, the judgment in respect of the Suit No. A/210/2008 ? Exhibit D4, remains a mirage and the trial Court could not have gone on a voyage of discovery to fish out and connect it with the Suit No. AG/46/2008, which the appellant woefully

failed to do.

With respect to Exhibit D6, it has no relevance to the facts and circumstances of this matter, since there is no record therein relating to any testimony of the respondent on the subject of the land exchange dispute between the appellant and Nze Oliver Okeke with Andrew Nwankwo-Onwuneme.

I have considered the submissions of both learned counsel herein on the issue of estoppel and whether or not it avails the appellant, in the circumstances and facts of this matter.

?In law, estoppel is an admission or something which the law views as equivalent of an admission. By its very nature, it is so important and conclusive that the party whom it affects will not be allowed to plead against it or adduce evidence to contradict it. Yoye v. Olubode (1974) All NLR 657; Falaye v. Otakpo (1995) 3 NWLR (pt. 381) 1 at 28 ? 29 (SC); Yusuf v. Adegoke (2007) 11 NWLR (pt. 1045) 332 at 361 (SC); Omiyale v. Macauley (2009) 7 NWLR (pt. 1141) 597 (SC); Ukaegbu v. Ugoji (1991) 6 NWLR (pt. 196) 127; Koiki v. Magnusson (2001) FWLR (pt. 63) 167; Cole v. Jibunoh (2016) 1 SCNJ (pt. 1) 93 at 112. It is a common law principle which has gained statutory

acceptance in Nigeria, such as Section 169 of the Evidence Act No. 18 of 2011. It forbids a person or party who having shown that he agrees with a state of affairs, to later turn round and disclaim his act or omission. Hence both in common and statutory law, such conduct is not permitted.
There are principally, two kinds of estoppel. In Osunrinde & Ors v. Ajamogun & Ors (1992) 7 SCNJ 79; (1992) LPELR ? 2819 SC at 39, his Lordship, Ogundare, JSC (now of blessed memory) succinctly stated, to wit:
?Now, there are two kinds of estoppel by record inter partes or per rem judicatam as it is generally known. The first is usually referred to as ?cause of action estoppel? and it occurs where the cause of action is merged in the judgment, that is transit in rem judicatam. There is however, a second kind of estoppel inter partes and this usually occurs where an issue has earlier on been adjudicated upon by a Court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances; ?issue estoppel arises.?<br< p=””>

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Furthermore, on the effect of estoppel, his Lordship, at page 46 of the report, stated:
?The general rule of law undoubtedly is that no person is to be adversely affected by a judgment in an action to which he was not a party, because of the injustice in deciding an issue against him in his absence. But this general rule admits of two exceptions, one is that a person who is in privity with the parties, a ?privy? as he is called is bound equally with the parties, in which case, he is estopped by res judicata: the other is that a person may have so acted as to preclude himself from challenging the judgment in which case he is estopped by his conduct.?
Indisputably, for the doctrine of estoppel to operate in any particular case, it must be established that,
(i) The parties (or their privies as the case may be) in the previous case are the same as in the present case;
(ii) The issues and the subject matter or res litigated upon in the previous case is the same as in the subsequent or present case;
(iii) The previous action must have been determined by a Court of competent jurisdiction;
(iv) The said decision

in the previous case, must have finally decided the issues between the parties.
The four fold conditions must co-exist, for the invocation and applicability of the doctrine of estoppel in any particular matter. I have demonstrated earlier in this judgment of the disconnect between the Suit No. A/210/2008 ? Exhibit D4 and the Suit No. AG/46/2008 which gave rise to this appeal. Therefore, I do not agree with appellant?s learned counsel in his contention to the effect that the issue and the subject matter or res litigated upon in Exhibit D4 is the same with that determined in the Suit No. AG/46/2008 of 12th April, 2012 which led to this appeal. Hence, I am satisfied that the doctrine of issue estoppel does not arise in the circumstances of this matter. So, the Court below had the jurisdiction to have entertained and determined the respondent?s action. In the end, I resolve issues 1 and 2 against the appellant.

Issue 3:
It is the appellant?s contention that Exhibit P1, ex facie, is not libellous of the respondent and that it is instead an appeal to the Enugwu Ozalla people to which the appellant and the respondent belongs and

the people and groups to which Exhibit P1 was copied to intervene and resolve any misgivings thrown up as a result of the exchange of land transaction between the appellant and Uchenna Nwankwo Onwuneme, particularly as the appellant believed that it was the respondent who was instrumental to the institution of an action on the same matter at the High Court, Ekwulobia against him. He submitted that Exhibit P1 contained neither defamatory matter nor did it convey the imputations ascribed to it by the respondent. Furthermore, it is the contention of the appellant?s learned counsel to the effect that if the learned trial judge had properly evaluated Exhibits D2 and D6, it would not have come to the decision that Exhibit P1 was defamatory of the respondent. He referred to Basil & Anor v. Fajebe & Anor 6 NSCQR 269 at 281; Iwuoha v. NIPOST (2003) 8 NWLR (pt. 822) 308 at 343 (SC).

On his part, respondent?s learned counsel submitted that Exhibit P1 was not aimed at ensuring any peaceful settlement of the High Court case instituted against the appellant, but targeted at tarnishing the image, reputation and credit of the respondent. He submitted

that there was enough evidence proffered and placed before the trial judge to justify the findings of facts made by him. He insisted that Exhibit P1 was calculated by the appellant to lower the respondent in the estimation of right – thinking men, cause him to be shunned or avoided, expose him to hatred, contempt or ridicule.

Resolution of issue 3:
Let me quickly say a word with respect to the submissions of both learned counsel, touching on Section 137 of the Torts Law, of the Revised Laws of Anambra State. Upon my perusal of the judgment of the learned trial judge at pages 126 ? 135 of the record of appeal, I did not see any reference by him, touching on the said Section 137 of the Torts Law of Anambra State. Furthermore, the appellant did not raise any ground of appeal as contained in the amended notice and grounds of appeal, with respect to any determination/decision of his Lordship, touching on the said Torts Law. Therefore, I fail to see the relevance of the submissions of both counsel in respect of Section 137 of the Torts Law of Anambra State. Hence, those submissions are of no moment and they are each discountenanced by me.

?In

order to prove a libellous publication, and sustain an action for libel, the plaintiff must establish that:
(i) There was a publication of the offending article or letter;
(ii) The publication was in writing;
(iii) The publication was with respect to the plaintiff;
(iv) The publication was false and defamatory of the plaintiff;
(v) The publication was made by the defendant;
(vi) The publication was made to another person(s) apart from the plaintiff and
(vii) The defendant had no justification or lawful excuse for the publication against or about the plaintiff.
Guardian Newspapers Ltd & Anor v. Pastor Ajeh (2011) 10 NWLR (pt. 1256) 574 at 588 ? 589 (SC); (2011) LPELR ? 234 (SC); Iloabachie v. Iloabachie (2005) 5 SCNJ 84; (2005) 5 NWLR (pt. 656) 178; (2005) 35 WRN 1; Amalgamated Press of Nig. Ltd v. Chief Festus Sam Okotie ? Eboh (1963) 2 SCNLR 270.
The Supreme Court per his Lordship A. Obaseki, JSC, in Chief O. N. Nsirim v. E. A. Nsirim (1990) 3 NWLR (pt. 138) 255, on the essence of publication of an offending article or letter, succinctly stated, thus:
?By publication is meant the

making known of the defamatory matter to some person other than the person to whom it is written. The writing of a libel to the person or party libelled does not constitute publication for the purpose of a civil action. ….. It is the reduction of the libellous matter to writing and its delivery to any person other than the person injuriously affected thereby that is publication. The name of the person to whom delivery of the libellous matter was made, must be pleaded.?
In his own contribution to the lead judgment (Nsirim v. Nsirim) supra, his Lordship, Belgore, JSC (as he then was) stated that:
?The cardinal principle of libel in law is that there must be publication of the libellous matter to a third person other than the person libelled, this is because a person?s reputation is not based on the good opinion he has of himself but the estimation in which others hold him.?
Furthermore the Supreme Court in Nsirim v. Nsirim (supra) reiterated that publication of a defamatory material is not merely that the defamation was written of the plaintiff, but that it was published or conveyed to a third person; who will give such

evidence. See also The Registered Trustees of the Rosicrucian Order (ARMORC) Nigeria v. Henry Awoniyi (1994) 7 ? 8 SCNJ (pt. II) 390 at 419, 427.
The law is settled that it is the general impression conveyed by the publication complained of that has to be considered and not the meaning of each word under analysis taken out of context, that is, the whole article should be considered and not just excerpts therefrom ? per Lord Devlin in Lewis v. Daily Telegraph Ltd (1964) A. C. 234 at 285. The publication must be construed as a whole. J. I. Okolo v. Midwest Newspapers Corp. (1977) 1 SC 33 at 41 ? 43.
Therefore, ?where the words are ordinary English words and are plain and unambiguous in their meaning …… it would be usurping the province of the jury or the judge ……. to call a witness to say what he understood the word to mean? ? per Lord Denning, M. R. in Slim v. Daily Telegraph Ltd & Ors (1968) 1 All E. R. 497 at 502. Further see Sketch v. Ajagbemokefere (1986) 1 NWLR (pt. 100) 678 at 709 per Agbaje, JSC. So the question to be considered is:
?………. would the words tend to lower the

plaintiff in the estimation of right-thinking members of society.? Thus, in the final analysis, whether the statement complained of is defamatory or not will surely depend upon the probabilities of each individual case and upon the natural tendency of the publication having regard to the surrounding circumstancesÂ – per Oputa, JSC in Fred Egbe v. Hon. Justice J. A. Adefarasin (1987) 1 SC 1 at 45.
On the part of the publisher of the publication, it is the law that if he made the publication, bonafide, on a subject matter in which he has an interest and which the person to whom he is communicating, has an equal or corresponding interest or duty, albeit that the publication may contain a sting of libel, such a publication would be considered as privileged. However, if the plaintiff feels that the publication was malicious of him, then the plaintiff must adduce evidence to establish the existence of malice. See Gatley on Libel and Slander, 7th Edition, at page 6; Prof N. Adeniji & Anor v. Prof B. Fetuga (1990) 5 NWLR (pt. 150) 370 at 385; Adam v. Ward (1917) A. C. 318.

Now, let us examine the letter of 4th June, 2008, that is Exhibit P1

and apply the above stated principles in order to determine whether or not it is libellous and actionable. It is therefore expedient to reproduce Exhibit P1, in its entirety.
It says, inter alia:
?4th June 2008-06-04
From
Okoliachu Chukwudi
To:
Ozalla Village Union Isuofia,
Aguata Local Govnmt Area.

PLEASE HELP ME BEG CHIEF PAUL OKONKWO (OJI) TO LET ME AND UCHENNA NWANKWO ONWUNEME LIVE IN PEACE LIKE HIM

Please I Mr. Chukwudi Okoliach is begging Ozalla Village Union to please, please, please beg chief Paul Okonkwo (Oji 1 of Isuofia) to allow me to live in peace with him because God has made it compulsory that we all must be neighbours.
Why I am saying this is for everybody to know that it is chief Oji that is taking us Chukwudi Okoliachu and Uchenna Nwankwo Onwuneme to Aguata High Court because of his interest to take the land.
My reason for saying this to Ozalla is this, when I completed the new house for Uchenna Chief Oji sent many people to tell me that ?he Oji 1 of Isuofia? has said that my arrangements with Andrew and Uchenna will never work out and I demanded to know why Andrew

told me that he is under pressure from Oji to stop the exchange, even that was what he told the police at Ekwulobia.
Chief Basil Okeke (Omele ife dike) Aje had called me more than 50 fifty times telling me that chief Paul Okonkwo Oji ordered him to tell me Chukwudi to stop building house for Uchenna because he can never allow the exchange.
On the 1st of May 2008, I called Chief Michael Okoli Ichie Ogbue Oke oha and complained to him what we are going through with Oji when Michael called him he only told Chief Michael that reason for stopping our exchange is that somebody is buried in the land and that the burial ceremony of the person have not been done.
Olibaco told Uchenna that Oji want refund whatever I spent in building his house to me or build another house for him else where and take Uchenna?s house.
Back in year 1999 when I was begging Andrew for access road Oji called me and told me that he was negotiating to exchange the entire land with Andrew he promised me access road if he succeeds with the exchange. He called me later and measured (12) twelve feet access road for me. I went to Oji?s office at Onitsha and greeted him

with cola nuts.
Surprisingly, he ?Oji? called me in about (6) six months later and told me that his exchange arrangements with Andrew have failed therefore the 12 feet he gave me is nullified that I should go back to Andrew for access road when I went to Andrew he refused then I went to Ozalla and Ozalla subsequently gave me access road to my house.
Olibaco has never asked me anything concerning the exchange as a friend, but I only received Court summon with Olibaco as first plaintiff and Andrew as second plaintiff.
Please Ozalla, help me beg Oji that the remaining portions of the land that belongs to late Okwudili and that of Nnaemeka he can still negotiate and build house for them because they are still in need of space like Uchenna, even though Andrew promised to exchange them with me.
Please help us beg chief Oji to forgive us only if we have offended him because he is our elder and we expected him to play and fatherly roll by even initiating the historic exchange between me and Uchenna because we needed it more than him.
Instead of blaming us or exposing Andrew Onwuneme to soil his hand with what he did because he

?Andrew? approved the exchange and invited his younger brother and since I started the construction Andrew never call me to stop the construction till today we are still friends as ever. He told me in confidence that the case will die a natural death and I believe him.
I have enclosed the copy of Oliver Okeke (Olibaco) Andrew Nwankwo?s oath and statement of claim for everybody to read. And the pictures of Uchenna?s new house and the one he has demolished for my compound.
Brothers I will stop here still begging all the ears that hear this to help me and beg chief Paul Okonkwo to live and let live because we have not offended him to the best of our knowledge.
Thanking you for your patience.
Chukwudi Okoliachu.
cc.
1. I. P. U. Federated.
2. Ucheora Age Grade
3. Ametete Kindred
4. Enugwu Ozalla Kindred
5. Cheif Paul Okonkwo.?

?Undeniably, Exhibit P1 was written by the appellant with respect to the land exchange transaction which involved the appellant and Uchenna. That the appellant was informed by one Chief Basil Okeke (Omele ife dike Aje) that the respondent was not in support of

the said land exchange transaction because somebody had been buried in that land, whose burial ceremony had not yet been performed. Furthermore, from Exhibit P1, the appellant indicated that far back in 1999, the respondent had done him a favour with respect to the same land which the respondent was negotiating to exchange with Andrew, and that if the respondent succeeded, he would give the appellant an access road. That when the negotiation sailed through, the respondent gave the appellant an access road measuring twelve (12) feet. And that the appellant in turn, went to the respondent?s office at Onitsha and greeted him with cola nuts. That however, the land exchange arrangement between the respondent and Andrew failed and thereafter the respondent informed the appellant to the effect that the twelve feet access road earlier given to him by the former stood nullified. Thereafter, the apellant went and met Andrew who refused him to give him the access road. However, the appellant approached Ozalla which subsequently gave him access road to his house. The appellant went further to state that it is after the grant of the access road to him by Ozalla that

he received a Court summons against him and Andrew. Hence, he wrote Exhibit P1 to Ozalla to plead for him so that the respondent would forgive the appellant if the respondent was offended with respect to the land exchange transaction and the grant of the access road to the appellant by Ozalla.

?I must say that, ex facie, I am unable to see any sting of defamation of the respondent?s character in Exhibit P1. To my mind, Exhibit P1 was more of a plea to Ozalla to intervene, in what appears to be, a frosty relationship between the appellant and the respondent, with respect to the land exchange transaction, in question. This can be discerned from the record of appeal. At the trial on 8th December, 2011 at page 119 of the record of appeal, under cross examination of the respondent, the following interaction ensued, inter alia:
?Q: A member of Isuofia Federated Union has the right to make a complaint against another on the floor of the house.
A: Yes. But the complaint to be oral with kolanut and up wine. Not in writing.
Q: The Union do receive correspondence in writing.
A: Yes. But complaints are made orally to the union as

stated by the constitution. On issue of the present native, the union does not receive correspondence.
I am aware of the land suit between Chief Oliver Okeke and Ors, on the one hand, and the defendant and Ors, on the other hand. I do not know that the libel is an off-shoot of the said land dispute.?

PW2 – Herbert Nwankwo at page 120 of the record of appeal said under cross ? examination, that:
?I am from Ozalla village in Usofia. In our village, people report disputes for amicable settlement.?

On his part, PW3 ? Andrew Onwuneme, the man in the centre of the stormy land exchange transaction in question, at page 120 of the record of appeal, answering a question under cross ? examination, said:
?The letter of 4/6/2008 was related to the land suit between the defendant and I. Our family do receive complaints from members of the family.?

?In his own evidence, under cross ? examination at pages 122 to 123 of the record of appeal, the appellant as DW1 testified, thus:
?There are Isuofia indigenes all over parts of Nigeria. I see Exhibit P1. I wrote it. I dispatched it to

Ozalla Village Union. I copied it to IPUF, that is to say, the town union. I copied it also to Ucheora age grade of Ozalla Village Union, Isuofia. I copied it as to Amatete Kindred. I copied it also to Enugu Ozalla Kindred. The above mentioned body of persons got copies of the letter.
I wanted Ozalla Village meeting to beg the plaintiff to leave me alone. I also wanted all the above mentioned bodies of persons to beg the plaintiff to leave me alone. I told other people also to beg the plaintiff to leave me alone.?

?In the circumstances and the evidence placed before the learned trial judge, I fail to see the alleged innuendos contained in Exhibit P1, which his Lordship alluded to. There was no question asked under cross ? examination of the appellant, with respect to any slure on the character of the respondent. I am surprised that in reviewing the evidence of PW2 and PW3 at page 129 of the record of appeal, his Lordship was of the opinion that Exhibit P1 in the understanding of PW2, ?gravely disparaged the plaintiff.? And as for the PW3, that:
?The letter was read and interpreted in Igbo language. By his own

estimation, the content thereof gravely scandalized and disparaged the character of the plaintiff.?

However, the ipse ? dixits, of the PW2 and PW3 are sharply in contrast with the findings of the learned trial judge, with respect to their understanding of Exhibit P1, touching on the character of the respondent. Hear them. PW2 at page 120 of the record of appeal, said:
?I still relate with the plaintiff as belonging to the same age grade with him. The letter, the subject matter of this suit was read in the age group meeting. I still respect the plaintiff because he is an honourable person.?

And for the PW3 at same page 120 of the record of appeal, he said, inter alia:
?I still relate with the plaintiff and I still respect him.?

?Indisputably, from the showing of PW2 and PW3, the respondent suffered no character deficit as a result of Exhibit P1. Therefore, the respondent?s character was neither scandalised nor disparaged by Exhibit P1. The respondent still remains a respectable and honourable person, within his society, which appears to venerate him, inspite of Exhibit P1. Hence, the

respondent?s integrity and credibility remain unruffled and unshaken.

For all the foregoings, I am convinced and of the considered opinion that this issue be and it is resolved in favour of the appellant. In the end, the appeal succeeds in part. The appeal to that extent, is accordingly allowed.

The judgment of the Anambra State High Court of Justice, Ekwulobia in re Suit No. AG/46/2008 of 23rd April, 2012, whereby the sum of Fifty Million naira (N50,000,000.00) being damages for libel awarded to the respondent, is set aside. Furthermore, the order made therein, that the appellant shall also render a written apology to the respondent to be published, half page, in the Guardian and Champion Newspapers, is hereby set aside.
Each side shall bear own costs.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.:Â I have had the opportunity to read in draft, the lead judgment prepared and just delivered by my learned brother, Hon. Justice Tom Shaibu Yakubu, J.C.A. His Lordship in his admirable and characteristically commendable manner, dealt with the three issues raised and adopted for determination in this appeal. Indeed, I agree

with the reasoning and conclusion reached therein, to the emphatic effect that the instant appeal matter, ought to succeed only in part and thereby to the said extent should be allowed ? according. My learned brother, Yakubu, JCA had adequately and duly considered this appeal. I do not intend to give further considerations thereto. I also with utmost respect to my noble Lord, adopt the same as mine and thereby find that the instant appeal matter partly succeeds. It is thus allowed to the state extent. I abide by the consequential orders made in the lead judgment including the order which pertained to costs.

RITA NOSAKHARE PEMU, J.C.A.:Â I had the advantage of reading in draft, the lead judgment of my brother TOM SHAIBU YAKUBU.Â I agree with his reasoning and conclusions.Â I abide by the consequential order made as to costs.

Appearances

G. B. Obi, Esq.For Appellant

AND

B. S. Nwankwo, SAN with him, Dr. N. A. NwapuFor Respondent