ONONIKPO & ANOR v. OKIKE (2020)

ONONIKPO & ANOR v. OKIKE

(2020)LCN/15214(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Tuesday, March 31, 2020

CA/OW/14/2016

Before Our Lordships

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

1. CALLISTUS CHINEDU ONONIKPO 2. ENGR. IGNATIUS NWABUEZE OGUCHIENTI APPELANT(S)

And

NZE JAMES C. OKIKE RESPONDENT(S)

RATIO

DEFINITION OF AN “AGENCY” OR “AGENT”

Now agency or agent has been defined in the BLACK’S LAW DICTIONARY 10TH Edition at page 14 as follows:-
”A relationship that arises when one person (a principal) manifests assent to another (an agent) that the agent will act on the principal’s behalf, subject to the principal’s control, and the agent manifests assent or otherwise consents to do so.”
Going by the above, and in practice an agent’s actions have legal consequences for the principal when the agent acts within the scope of the agent’s actual authority or with apparent authority, or the principal later ratifies the agent’s actions.
The meaning and nature of agency relationship has been elaborately treated in the case ofM. V. BREUGHEL & ORS VS. MONDIVEST LTD (2018) LPELR–44728 (CA) pages 33–35 A–F thus:-
“Agent or agency was defined in the case of OSIGWE V PSPLS MANAGEMENT CONSORTIUM LTD & ORS (2009) LPELR-2807 (SC) thus: “…who is an Agent At page 64 of Black’s Law Dictionary, 7th Edition, an Agent is defined as “One who is authorised to act for or in place of another, a representative”. The word “agent” or “agency” it is stated therein, denotes one who acts, a doer, etc. that accomplishes a thing or things. The agent normally binds his principal and certainly not himself by the contract he makes. Indeed, this Court, in the case of Dr. Tunde Bamgboye v. University of llorin & Anor (1999) 10 NWLR (Pt. 622) 290 @ 329 also cited in the 1st – 3rd, 5th – 8th and 10th – 14th Respondents’ Brief (it is also reported in (1999) 6 SCNJ 295) – per Onu, JSC, the definition of an agent in the said Black’s Law Dictionary (Edition not stated), was stated thus: “A person authorized by another to act for him, one entrusted with another’s business…” One authorized to transact all business of principal (sic), all of principal business of some particular kind, or all business of some particular place, etc.” His Lordship, then stated inter alia, as follows: “An agent, in my view, means more or less the same thing as a delegate.” Per OGBUAGU, J.S.C Flowing from above, the meaning of agency was given in the case of JAMES V MID-MOTORS (NIG) CO. (1978) LPELR-1593(SC) thus: “…but in law, the word agency is used to connote the relation which exists where one person has an authority or capacity to create legal relations between a person occupying the position of principal and third parties”; and the relation (i.e. of agency) also arises “whenever one person called, the agent has authority to act on behalf of another called the principal and consents (expressly or by implication) so to act” – See Halsbury Laws of England Vol. 1, 4th Ed. Para. 701 at p. 418; also International Harvester Co. of Australia Pty Ltd. v. Carrigans Hazeldene Pastoral Co. (1958) 100 CLR 644 at 652 (Aust. High Court). Agency connotes a relationship that exists where one has the authority or capacity to create legal relationship between a principal and a third party, and the reality of its existence depends on the true nature of the agreement or the circumstances of the relationship between the principal and alleged agent. PER ANDENYANGTSO, J.C.A.

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

It is trite, and fundamental though elementary, that the question of jurisdiction of a Court is a radical and crucial question of competence because if a Court has no jurisdiction to hear and determine a matter, the proceedings are, and remain a nullity ab initio no matter how well conducted and brilliantly decided they might be, because a defect in competence is not intrinsic, but extrinsic to the entire process of adjudication. Jurisdiction of a Court is therefore considered to be the nerve centre of adjudication, the blood that gives life to an action in a Court of law in the very same way that blood gives life to the human being. See DAPIANLONG VS. DARIYE (2007) 8 NWLR (PT. 1036) 332, (SC). PER ANDENYANGTSO, J.C.A.

IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment): By an amended statement of claim, the Plaintiffs at paragraph 41 thereof claimed against the defendants jointly and severally the following:-
“a. One hundred Million Naira (100,000,000.00) only, being general and exemplary damages for libel in that on the 31st day of March, 2006, the Defendants falsely and maliciously wrote and published of and concerning the Plaintiffs inter alia:
“The attention of Oru West Local Government has been drawn to report of threats by you and your cohorts to cause a breach of peace in the Local Government Area, particularly Isi Mgbidi Autonomous Community.
It is further reported that you have formed what is termed “Imeoha Youth” under the leadership of James Okike with a view to formenting trouble in Isi Mgbidi Autonomous Community and also at the premises of Mgbidi High Court where a case is now pending between you and the Traditional Ruler HRH Eze J. C. Onyejekwe.
Following the threats of peace and security, I have been directed to call you to order, you are therefore advised, in your own interest, to desist from such acts and to call your cohorts to order.
Please note that you will be held personally responsible for any breakdown of law and order resulting from your activities and those of your cohorts.”
b. An unreserved letter of apology to the Plaintiffs published in two National Dailies, which letter of apology shall be pasted on conspicuous places in the Oru West Local Government Area.”

The Defendants denied liability in their joint Statement of Defence. At a point the Oru West Local Government Council was joined as the 3rd Defendant in the suit. Pleadings were filed and exchanged. The suit proceeded to trial, at the end of which Hon. Justice K. A. Ojiako, J. of the Imo State High Court, sitting at Mgbidi Judicial Division gave judgment on 24/9/2014 (pages 156–178 of the Record) in favour of the Plaintiffs, awarding the sum of N5, 000,000.00 (Five Million Naira) as general damages for libel and N25, 000.00 (Twenty–Five Thousand Naira) cost against the Defendants.

Dissatisfied with the decision, the Defendants have appealed to this Court on a Notice of Appeal containing 2 grounds filed on 30/9/2014 (See pages 179–181 of the Record). With the leave of this Court the Notice of Appeal was amended containing 9 grounds of Appeal. I shall henceforth in this judgment refer to the Defendants and Plaintiffs, the Hon. Judge who tried the case and the trial Court as the “Appellants” and “Respondents”, the “learned trial Judge” and the “Lower” Court” respectively.

The Amended Brief of Argument of the Appellants was deemed properly filed and served in this Court on the 28/3/18, while the Respondent’s Brief was filed on 6/12/18. The Respondent with the leave of this Court granted on 26/9/18 filed and transmitted an additional Record of Appeal on 6/12/18 but was deemed properly filed and transmitted to this Court on 16/1/19.

In the course of the Appeal, the 1st Respondent Dr. P. A. C. Agwaramgbo died and his name was struck out from the proceedings. This appeal was heard on the 30/1/2020 on which date learned Counsel on both sides adopted their respective briefs with the Appellant’s Counsel urging us to allow the appeal and the Respondent’s Counsel urging us to dismiss same.

Now, the 9 grounds of Appeal contained in the Amended Notice and Grounds of Appeal without their particulars are as follows:-
“GROUND 1
The Learned trial Judge erred in law when he dismissed the application of the appellants seeking to strike out their names from the suit.
GROUND 2
The entire Judgment is against the weight of evidence led in this case.
GROUND 3
The Learned trial Judge erred in law when he held as follows: “this suit cannot be maintained against the 3rd Defendant as the cause of action had become statute barred against it at the time it was joined in the suit,” but went ahead to hold the 1st and 2nd Defendants liable for an alleged act of the 3rd Defendant.
GROUND 4
The learned trial Judge erred in law when he held as follows:
“I find as a fact therefore, that there was publication of the said letter, Exhibit A, to the public as pasted on the said Notice Board. Again it is not in dispute that the publication clearly referred to the Claimants. They are expressly mentioned by their names in the said document, Exhibit A in this proceedings.”
GROUND 5
The learned trial Judge erred in law when he concluded and arrived at a decision that Exhibit A, as published in its fair, ordinary and natural meaning was defamatory of the Claimants.
GROUND 6
The learned trial Judged erred in law when he believed the testimony of CW3, Emmanuel Ewuru, but disbelieved that of DW2, Uchenna Durueke.
GROUND 7
The learned trial Judge erred in law when in disregarding the defence of Qualified Privilege raised by the Appellants in their pleadings held as follows:
“I am of the humble view that in the light of lack of reciprocity on the side of the persons to when (sic) the letter was published, the public, the defence cannot avail the 1st and 2nd defendants.”
GROUND 8
The learned trial Judge erred in law when, in attaching much value to Claimants’ pleadings, held as follows:
“I have read the 1st and 2nd Defendants’ Statement of defence and there was no specific denial, challenge or response to the material facts pleaded in paragraph 35 of the Statement of Claim. The general traverse cannot suffice as sufficient traverse to this fact.”
GROUND in law when he held that the Claimants have “suffered damages by the said publication which holding is underscored by the imputation under the law and further by the evidence of the CW3 which confirmed the actual damages” and inconsequence, (sic) awarded the sum of N5, 100,000.00 (Five Million, One Hundred Thousand Naira) (sic) with cost of N25, 000.00 (Twenty–Five Thousand Naira) against the Appellants.”
“RELIEFS SOUGHT FROM THE COURT
To allow the appeal and dismiss Respondents’ claim in its entirely.”

In the Amended Appellants’ Brief of Argument, settled by C. P. Oguchienti, Esq. the Learned Counsel donated 5 issues for determination as follows:-
i. Whether the Appellants are not entitled to be discharged from any liability in this case, against the background of the trial Court’s decision striking out the name of their employer, Oru West Local Government Council, joined as 3rd Defendant in the case, on the basis that the cause of action had been statute barred against the 3rd Defendant. (Ground 3)
ii. Whether in the overall circumstances of this case, Exhibit A conveyed any defamatory imputations on the Respondent herein, now with the demise of Dr. P. A. C. Agwaramgbo, and whether same was indeed published. (Grounds 4 and 5)
iii. Whether the trial Court properly appraised the evidence led in this case, in arriving at the conclusion that there was publication of Exhibit “A”. (Grounds 2, 6 and 8)
iv. Whether the alleged publication was not indeed privileged. (Ground 7)
v. Whether the Respondent has suffered damages to be entitled to the award made by the trial Court in this case. (Ground 9)

Let me straight away observe that the Appellants did not include ground 1 in issue 1 which ought to be so included since issue 1 has so expressly been formulated from the said ground 1 of the Appeal. I therefore so include same.

The Respondent on his part donated one issue for determination which runs thus:
“Was the lower Court not justified in dismissing the application of the Appellants to strike out their names from the suit, but rather proceeded to hear the suit, at the conclusion of which it held the Appellants liable in damages for libel, by reason of the injury inflicted on the Respondent by the Appellants, upon the publication as contained in Exhibit A, when from the pleadings and evidence before the lower Court there is abundant proof that exhibit A was maliciously published by Appellants against the Respondent, to members of the public, for public consumption without proof of reciprocity from members of the public to whom the publication was made, even in the face of the holden (sic) by the lower Court that the action against the 3rd Defendant is statute barred, and thus cannot be maintained against the said 3rd Defendant? Distilled from grounds 1, 2, 3, 4, 5, 6, 7, 8 and 9 of the grounds of appeal.”

The Appellants argued their issues seriatim thus:-
ISSUE ONE
It is the Appellants’ contention that they are both Secretary and Chairman of the Oru West Local Government Council respectively at all times material to this suit as contained on pages 79 and 80 of the Record, paragraph 6 of the Statement of Defence, which fact was confirmed by Dr. P. A. C. Agwaramgbo and the Respondent in their respective Statements on oath at pages 39–42 and 53–56 of the Record. This fact was also acknowledged by the Respondent under cross examination by 3rd Defendant’s learned Counsel that the Appellants were Secretary and Chairman respectively of the 3rd Defendant at page 59 of the Record. It is also contended that the Respondent maliciously brought this action against the Appellants in their personal capacities before the Oru West Local Government Council was joined by order of Court, simply out of personal malice against the Appellants, as there was in fact no basis for that; that the Appellants were agents of the 3rd Defendant a disclosed principal to the full knowledge of the Respondent, at the time Exhibit “A” was written and addressed to late Dr. P. A. C. Agwaramgbo and not to the Respondent on the Record.

Learned Appellants’ Counsel then submitted that agency is a fiduciary relationship created by express or implied contract or by law, in which one party (the agent) may act on behalf of the other party (the principal) and bind that other party by words or action; that an agent normally does not bind himself but his principal by the contract he makes relying on BAYERO VS. MAINASARA & SONS LTD (2007) ALL FWLR (PT. 359) 1285; that since the Appellants were public officers at the time this action was taken, they could not be held personally liable for their official actions carried out for and on behalf of their employers, relying on ADIGHIJE VS. NWAOGU (2010) FWLR (PT. 521) 1512; that this fact is known as it was undisputed that the Appellants were public servants at the material time; that if the learned trial judge in his wisdom found that the suit was not maintainable against the Appellants’ employers, same being statute barred, there is no legal basis to find and hold the Appellants liable for an act done in the course of their employment, which act was consistent with the social and moral responsibilities imposed on the Appellants by law as public officers; that a public officer is in law an agent of the government, his employer, and a disclosed principal; that the public officer is not personally liable for anything done by him in the course of performing his official duties; that any wrong committed by him in the course of performing his official duties is a wrong committed, in law, by his employers, the government, relying on NAS VS. ADESANYA (2003) FWLWR (PT. 145) 693 paras B–C. Learned Counsel then urged us to resolve this issue in favour of the Appellants and against the Respondent.

ISSUES TWO & THREE
Learned Counsel sought leave of Court and argued issues two and three together. These issues deal with defamation which learned Counsel referred to Black’s Law Dictionary 9th Edition page 470 for definition of defamation and submitted that the onus is on the Plaintiff in action for libel to prove that the defendant (a) published; (b) referred to him; (c) that the statement was defamatory of him in the sense that it lowered him in the estimation of right thinking members of the society; or it exposed him to hatred and ridicule or contempt, or it injured his reputation in his office or trade or profession, or it injured his financial credit. He referred to THE SKETCH PUBLISHING CO. & ANOR VS. AJAGBEMOKEFERI (1989) 2 SC (PT. II) 73.

Learned Counsel reproduced Exhibit A and contended that same was addressed to late Dr. P. A. C. Agwaramgbo upon instruction of the Imo State Government and bears no defamatory imputations, and therefore could not have been said to have been published and never lowered the Respondent in the estimation of right thinking members of the society; neither did it expose the Respondent to hatred and ridicule or contempt, nor injured his reputation within the meaning and contemplation of the law of defamation. He relied on YAHAYA VS. MUNCHIKA (2000) FWLR (PT. 17) 145.

It is further submitted that the burden is now totally cast upon the Respondent, who failed completely to prove the above mandatory requirements of the law, relying on NEPA VS. INAMETI (2002) FWLR (PT. 130) 1716 para C.

Learned Appellants’ Counsel referred to the evidence of DW1 at pages 87 and 88 of the Record in respect of Exhibit “A” to the effect that it was written under the directive of the Imo State Government and delivered personally to the Late Dr. P. A. C. Agwaramgbo and was a private letter which was never published to the general public; reference was again made to pages 85 and 86 of the Record in respect to the testimony of the 1st Appellant which has taken care of the rejected Exhibit to the effect that it was the Oru West Local Government Council under the instruction of the Imo State Government that authored Exhibit “A” referring to EDOSOMWAN VS. OGBEYFUN (1996) 4 SCNJ 21; that the evidence of the 1st Appellant as DW1 was never challenged by the Respondent; that Exhibit “A” being a private letter addressed to late Dr. P. A. C. Agwaramgbo and in respect of security matters was never and could not have been published by pasting same on the notice Board, referring to the evidence of DW2 Uchenna Durueke at page 110 of the Record and emphasizing that Exhibit “A” was never published by the Appellants since the Respondent did not and could not show how Exhibit “A” was published by the Appellants.

Learned Counsel submitted and urged us to hold that Exhibit “A” being a private document, should not have been and in fact was never published to the public by the Appellants, referring us to the definition of publication contained at page 1348 of the Black’s Law Dictionary, 9th Edition; that defamation can only lie in publication of defamatory words and not in doing a lawful or even a wrongful thing in circumstances that may occasion a mere embarrassment to the Plaintiff, or even bring him to hatred, contempt or ridicule, referring us to KALIO VS. CBN (2001) FWLR (PT. 53) 188 at 212. Learned Counsel drew our attention to the Respondent’s claim that Exhibit “A” was pasted at “…strategic places within the Oru West Local Government Headquarters, Mgbidi, and other places in the Oru West Local Government Area, for the consumption of the members of the general public…” could only call CW3 who was his brother from the same community to testify to such a wide claim, despite the fact that the Respondent listed one Victor Iloanya as one of the witnesses yet failed to call him, in view of the fact that his testimony would be inimical to the Respondent’s case.

Learned Counsel drew our attention to the fact that the learned trial Judge only considered the evidence of the CW3 without giving equal consideration to the Appellants’ witnesses who testified as DW1 and DW2 in arriving at the conclusion that Exhibit “A” was published and that same was defamatory of the Respondent, thereby rendering its decision biased; furthermore that it is trite that words are not defamatory however much they may damage a man in the eyes of a section of the community unless they also amount to disparagement of his reputation in the eyes of right thinking men generally; that to write or say of a man something that will disparage him in the eyes of a particular section of the community but will not affect his reputation in the eyes of the average right thinking man, is not actionable within the law of defamation unless they amount to disparagement of his reputation in the eyes of the average right thinking members of the public generally, relying on GREEN IN TOLLY VS. FRY (1930) 1 KB 469; NEPA VS. CHIEF INAMETI (2002) FWLR (PT. 413) 1695 at 1716.

Counsel submitted that CW3, bearing a relationship to the Respondent can hardly be a witness whose evidence will be regarded to represent that of a right thinking members of the public, rather that of a particular section of a community, relying on TOLLY VS. FRY (supra); that the Respondent failed to call at least one of the persons whom he alleged called him on phone to express their disgust after reading the publication; that the test for determining defamation is objective of a reasonable man, coming in contact with the surrounding circumstances of how they were made. We were urged to hold and decide whether the words complained of in Exhibit “A” are defamatory of the Respondent by the authority of OMOLE VS. MALLAM ABUBAKAR & ANOR (2002) FWLR (PT. 126) 904 at 912–913.

Learned Counsel submitted that the learned trial Judge disregarded the unchallenged testimony of DW1 and DW2 in respect of the status of Exhibit “A”. We were urged to resolve these issues in favour of the Appellants and against the Respondent.

ISSUE FOUR
Learned Counsel submitted that assuming but by no means conceding that there was publication, he quarried, whether such publication was not privileged? Learned Counsel stated that the Appellants pleaded qualified privilege as a major plank of their defence as Exhibit ‘A” was made by the 1st and 2nd Appellants on behalf of the Oru West Local Government Council, the 3rd Defendant in the suit, and submitted that being so, the Appellants have a legal duty or responsibility to address Exhibit “A” to the late Dr. P. A. C. Agwaramgbo who correspondingly received same, referring to PROFESSOR OLOGE & ORS. VS. NEW AFRICA HOLDINGS LTD (2002) FWLR (PT. 119) 1614 at 1622–1623; that Exhibit “A” was neither made out of malice nor to disparage the Respondent, referring to CHIEF (DR.) PETERSIDE VS. PROFESSOR FUBARA (2016) ALL FWLR (PT. 297) 1664 at 1078, 1086, 1082–1084.

Learned Counsel referred to the judgment of the lower Court at pages 156–158 of the Record dealing with the Reply by the Respondent to the Statement of Defence of the 3rd Defendant and submitted that the judgment was based on the fact of the case as the Respondent did not file any reply to the 3rd Defendant’s defence and also failed to prove malice against the Appellants in authorising Exhibit “A”, neither did the Respondent furnish any particulars of such alleged malice as strictly required by law to the effect that malice cannot be inferred from pleadings of a party but should be specifically proved with the particulars being provided, relying on CHIEF S. B. BAKARE & ANOR & VS. ALHAJI ADO IBRAHIM (1973) ECSLR (PT. 1) 485 at 489 to the effect that in an action for defamation, where it is intended to allege express malice in answer to a plea of fair comment or qualified privilege, it is necessary to deliver a reply giving particulars of the facts from which express malice is to be inferred, also relying on PETERSIDE VS. FUBARA (supra).

Learned Counsel submitted that the Respondent did not give any reply to the defence of qualified privilege raised by the Appellants within the meaning and contemplation of Order 18 of the Imo State High Court (Civil Procedure) Rules 2009, thereby the Respondent is deemed to have admitted the facts conveyed by the defence and that what is admitted need no further proof, relying on Section 123 of the Evidence Act, 2011 (as amended) and SABRU MOTORS NIGERIA LTD VS. RAJAB ENTERPRISES NIG. LTD (2002) 4 SC (PT. II) 67 at 78; BENDEL PILGRIM WELFARE BOARD VS. IRAWO (1995) 1 NWLR (PT. 369) (incomplete citation).

Learned Counsel again submitted that what the lower Court did by picking malice from Exhibit “A” when the Respondent did not do so, was doing the case for the Respondent which is not allowed in law, relying on AWUSE VS. ODILI (2005) ALL FWLR (PT. 261) 321–322 paras H–C; TERRAB VS. LAWAN (1992) 3 NWLR (PT. 321) 569 and ROTIMI VS. FAJOIJI (1999) 6 NWLR (PT. 606) 305; that parties are bound by their pleadings, relying on OGBOGU & ORS VS. UGWUEGBU & ANOR (2003) FWLR (PT. 161) 1825 at 1839; that it is trite law that a reply to the defence of qualified privilege should resonate with facts and particulars that show the malicious intention of the publisher, relying on ILOABACHIE VS. ILOABACHIE (2005) 5 S.C. (PT. II) 149 at 158; that qualified privilege is a complete defence in law, relying on PETERSIDE VS. FABURA (supra); that in the instant case there was a letter containing the name of the Defendant, thus the publication of the letter to the Commissioner of Police was justified or warranted and that malice was not pleaded and no evidence adduced in that respect as required by law as demonstrated in the PETERSIDE VS. FABURA case (supra); PRINCIPAL GOVERNMENT SECONDARY SCHOOL, IKACHI & ORS VS. IGBUDU (2006) ALL FWLR (PT. 299) 1420 at 1447, 1448–1449; that since the Appellants contended that they had the social and legal duty to write Exhibit ”A” this Court should resolve this issue in their favour and against the Respondent.

ISSUE FIVE
Under this issue, the Appellant’s learned Counsel referred to the claims of the Respondent in the amended Statement of Claim, and the judgment of the lower Court, striking out the 3rd Defendant, holding the Appellants liable and the award of damages to the Respondent and submitted that the lower Court erred in holding that Exhibit “A” authored by the Appellants is defamatory of the Respondent and same was published, relying onFIRST BANK OF NIGERIA PLC VS. EXCEL PLASTICS IND. LTD (2003) FWLR (PT. 160) 1644–1645 paras G–A; PAN ASIAN AFRICAN CO. LTD VS. NATIONAL INSUARANCE CO. (NIG) LTD (1982) 9 SC 1; NLEWEDIM VS. UDUMA (1995) 6 NWLR (PT. 195) 1; TSOKWA OIL & MARKETING CO. NIG LTD VS. BANK OF THE NORTH LTD (2002) FWLR (PT. 112) 31 paras G–H.

Learned Counsel further contended that the Respondent is not entitled to the awards made in his favour because the Appellants have done nothing to impugn his integrity, reputation or any of his avowed status by virtue of Exhibit “A”, which reflected the conduct of late Dr. P. A. C. Agwaramgbo in rejecting a constituted and legally recognized authority in the person of HRH Eze Joel Onyejekwe as borne out by the evidence of Dr. P. A. C. Agwaramgbo, which learned Counsel reproduced at pages 49 – 52 of the Record. Hence Exhibit “A” did not convey any defamatory publication published to the general public, relying on NITEL VS. TUGBIYELE (2005) 3 NWLR (PT. 912) 353.

Learned Counsel finally urged us to resolve this issue in favour of the Appellants and against the Respondent and to allow this appeal and set aside the decision of the lower Court.

The learned Counsel for the Respondent on his part referred to paragraphs 33–39 of the Amended Statement of Claim of the Respondent and contended that the Appellants did not reply to the issues therein contained; he referred to the portion of the judgment of the lower Court at page 167 of the Record and submitted that there was no reciprocity but that the Appellants relied on qualified Privilege as a defence which did not avail them as there was no proof of same, relying on ONYEJIKE VS. ANYASOR (1992) 1 NWLR (PT. 218) 437) at 441; ADAM VS. WARD (1917) A. C. 309 at 334.

As to what constitutes statements which qualify as qualified privilege, learned Counsel cited M.T. MAMMAN VS. A. A. SALAUDEEN (2006) ALL FWLR (PT. 298) 1169, paras E–G, 1191 paras D–E and submitted that in the instant case the alleged libellous matter is Exhibit 4 written by the Respondent to the employer of the Appellants for the purpose of regularizing Respondent’s account with the said employer, which Exhibit 4 was made by the Respondent in protection of his interest and the Appellants’ employer has reciprocal interest in receiving that statement. Counsel referred toGATLEY ON LIBEL & SLANDER, 9TH Edition (1998) para 14. 4; ATOYEBI VS. ODUDU (1990) 6 NWLR (PT. 157) 384; JAMES VS. BIND (1916) SC (HL) 158 at 163–164; HUNTS VS. GREAT NORTHERN RAILWAY (1891) 2 GB 189 at 191; SHAW VS. MORGAN (1888) 15 R 865, 870.

Learned Counsel further stated that whether the statement is made in discharge of a duty or in protection of interest, there must be reciprocity on the person receiving same otherwise the defence cannot avail the defendant; that there was neither pleading in the Statement of defence of the Appellant nor proof that they (Appellants) have interest or duty (legal, social or moral) to make the publication in Exhibit “A” to the people/residents of Oru West Local Government Area, being persons to whom the publication was made to have a corresponding interest or duty to receive it; that the reciprocity which is essential in the defence of qualified privilege in an action for libel must be pleaded and proved by credible evidence, which the Appellants in this case failed to do; that the 3rd Defendant denied the claims of the Respondents in the paragraphs earlier referred to; that the tort of libel is committed through the publication of defamatory words in a written form, which words must be an attack on the reputation and integrity of the person(s) against whom the words were published, relying on ILOABACHIE VS. ILOABACHIE (2005) ALL FWLR (PT. 272) 223 at 252; that to establish the tort of libel a Claimant must show that the words published, in their natural or ordinary meaning, would be understood by a reasonable man to whom the publication was made, to be libellous, which test is objective and which being applied to Exhibit “A” as pleaded in paragraph 34 of the amended Statement of Claim (additional Record) would show that the words are libellous, amounting to disparaging of the character and reputation of the Respondent in the eyes of right thinking members of the public, including CW3; that the Appellants, having admitted that they published Exhibit “A” the 3rd Defendant’s denial of its defamatory nature cannot be effective anymore.

Learned Counsel referred to the evidence of CW1 at page 38 paragraphs 1, 2, 3, 7, 8 and 12 of his written statement on oath at pages 63–66 of the Record; CW2 at pages 53–56 particularly at paragraphs 1–5 and 9 and page 5 paragraph 1 of the written statement on oath at pages 53–56 and evidence of CW3 at paragraphs 2–4 and submitted that the Appellants did not join issues with the Respondent on the question of publication of Exhibit “A”. He submitted that DW2 could not have given any credible evidence on behalf of the Appellants since at the time the cause of action arose he was not yet posted to the 3rd Defendant as its staff as he only went there in 2010 and would not know of the publication of the Exhibit “A” in 2006; that there is no any credible evidence to prove the facts contained in paragraph 18 of the 3rd Defendant’s statement of defence as required by law, referring to ONYEAKAGBU VS. AFRICAN DEV. INSURANCE LTD (2005) ALL FWLR (PT. 289) 1379 at 1393, E–F; OGUAYADE VS. OSHUNKEYE (2007) 15 NWLR (PT. 1057) 218 at 246, E–H. Learned Counsel then urged us to discountenance the facts contained in paragraph 18 of the Amended Statement of the 3rd Defendant.

Citing AWONIYI VS. THE REGISTERED TRUSTEES OF THE RUSICRUCIAN ORDER (AMORC) (1990) 6 NWLR (PT. 154) 42 learned Counsel stated the requirements of publication in the tort of libel thus:-
(1) The law is that a libel does not require publication to more than one person.
(2) It is not necessary in all cases to prove that the libellous matter was actually brought to the notice of some third party. If it is a matter of reasonable inference that such was the fact, a prima facie case of publication will be established.
(3) A libel in any of such documents like a book, a magazine or newspaper or a post card (posted) is therefore prima facie evidence of publication.

He then contended that a libellous document posted on the Notice Board of the 3rd Defendant Local Government and other strategic places in Oru West Local Government Area is prima facie evidence of publication and that the evidence of CW3 on this point was not challenged. Learned Counsel submitted further that publication is to communicate a defamatory matter to at least one person, referring to GATLEY ON LIBEL AND SLANDER 10TH EDITION, page 141 paragraph 6.1; that Exhibit “A” speaks for itself that it is clearly defamatory of the Respondent; that publication is also making known the defamatory matter after it has been written and sent to a third party other than the plaintiff, relying on UKO VS. MBABA (2001) 4 NWLR (PT. 704) 477; NSIRIM VS. NSIRIM (1990) 3 NWLR (PT. 135) 285; GIWA VS. AJAYI (1993) 5 NWLR (PT. 294) 1379 and ADENIJI VS. FETUGA (1990) 5 NWLR (PT. 150) 1379.

Learned Counsel submitted that in the instant case, the fact of pasting the letter on the notice board of the Oru West Local Government Area is publication to the public for its consumption and quoted the judgment of the lower Court at page 169 of the Record in support; furthermore that in determining whether the words as published are capable of defamatory meaning, the Court will construe the words according to their fair and natural meaning which would be given by reasonable persons of ordinary intelligence, and that the test is whether under the circumstances in which the writing was published, reasonable men to whom the publication was made would understand them in a libellous sense, relying on LABATI VS. BADMUS (2007) 1 NWLR (PT. 1014) 216; DUMBO VS. IDUGBOE (1983) 1 SCNLR 29. Counsel then quoted the lower Court in its judgment at pages 169–170 of the Record and repeated that Exhibit “A” (1) was published (2) by the Defendants (3) the Respondent sustained injury to his reputation and credit by the Appellants’ malicious publication of Exhibit “A”, relying on the evidence of CW3 and that the Appellants have no justification whatsoever in law and/or in fact to publish Exhibit “A”, neither did they publish the libellous matter on any privileged occasion.

Learned Counsel argued that the reliance placed on the directive of Imo State Government that the Appellants should write Exhibit “A” was misplaced since the Government of Imo State is a creation of a statute which can only act through the instrumentality of human beings; that the Appellants did not apply to join Imo State as co-defendants neither did they subpoena any officer of the Imo State Government to testify in Court for, and on its behalf; that there was no evidence of any directive by the Imo State Government to the Appellants to write Exhibit “A” since the Court had rejected the only letter purported to have been written by the Imo State Government directing the Appellants to write Exhibit “A”, referring to the judgment of the lower Court which he quoted without reference to any page of the Record of Appeal.

Counsel reiterated that the Appellants were actuated by malice in writing Exhibit “A”, relying onBAYAM VS. AGANA (2010) 9 NWLR (PT. 1199) 215 at 235.

As to quantum of damages awarded to the Respondent, Counsel referred to paragraphs 1–25 of the Respondent’s amended Statement of claim in reference to the tall credentials of the Respondent which were not denied or challenged by the defence, deeming same admitted in law; that the Respondent prayed for N100,000,000.00 being general and exemplary damages for libel. And for damages he referred us to a book, MCGREGOR ON DAMAGES, FOURTEENTH EDITION, page 3 paragraph 1 and page 10 paragraph 9; paragraph 34 of the Respondent’s amended Statement of Claim, containing the libellous matter published by the Appellants; paragraph 35 of the same relating to the place where the offensive matter was published, pasted and the persons who read the offensive publication; paragraph 36 containing the meaning/inference in respect of the said publication and paragraph 38 containing the reaction of the persons who read and/or heard of the offensive publication.

Counsel referred to paragraph 40 of the Amended Statement of Claim in respect to the injury sustained by the Respondent and reliefs claimed and the case of ASHEIK VS. MEDIA TRUST NIG. LTD (2010) 15 NWLR (PT. 1215) 114 at 163 para C to the effect that proof of damages is unnecessary in an action for libel and the judgment of the lower Court at page 167 and submitted that the value of the Naira has dropped which entitled the lower Court consider same in its award of damages, referring to Counsel then urged us to hold that the Respondent proved his case at the lower Court and to dismiss the appeal and uphold the decision of the lower Court by resolving the issue for determination in favour of the Respondent and against the Appellants.

RESOLUTION
In resolving this appeal I will adopt the lone issue formulated by the Respondent’s learned Counsel as it encompasses all the issues formulated by the Appellants’ learned Counsel and compresses same into a single sentence thus:-
“Was the lower Court not justified in dismissing the application of the Appellants to strike out their names from the suit, but rather proceeded to hear the suit, at the conclusion of which it held the Appellants liable in damages for libel, by reason of the injury inflicted on the Respondent by the Appellants, upon the publication as contained in Exhibit A, when from the pleadings and evidence before the lower Court there is abundant proof that exhibit A was maliciously published by Appellants against the Respondent, to members of the public, for public consumption without proof of reciprocity from members of the public to whom the publication was made, even in the face of the holden (sic) by the lower Court that the action against the 3rd Defendant is statute barred, and thus cannot be maintained against the said 3rd Defendant? Distilled from grounds 1, 2, 3, 4, 5, 6, 7, 8 and 9 of the grounds of appeal.”

Exhibit “A” which formed the basis of this suit is contained on a letter head of the Oru West Local Government and signed by Prince Chinedu Ononikpo, who was the Secretary Oru West Local Government Area for the Executive Chairman, Oru West Local Government Area.

The Oru West Local Government Area is a constitutional creation as prescribed in the First Schedule, Part 1 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended/altered).
Being a statutory creation, it can only act through its officers, especially the Principal Officers, such as the Chairman, Vice Chairman and Secretary.

In this matter it is beyond question that at all times material to this suit the 1st and 2nd Appellants were the Secretary and Chairman of Oru West Local Government Council who was joined in the suit as the 3rd Defendant. This fact is contained in paragraph 6 of the Joint Statement of Defence of the 1st and 2nd Appellants as defendants at pages 79–80 of the Record. The facts averred in paragraph 6 of the joint Statement of Defence of the 1st and 2nd Appellants were supported by the testimony on oath of Chinedu Calistus Ononikpo (1st Appellant) who deposed to same on behalf of the 2nd Appellant.

Paragraphs 2-6 of the sworn deposition are relevant which are reproduced hereunder as follows:-
“2. That I have the authority and consent of the 2nd defendant to make this statement on our behalf.
3. That the publication complained of by the plaintiffs in this suit and every act relating thereto, were done in our ordinary course of duty as the Secretary and Chairman of the Oru West Local Government Area, Imo State who were our employer at all times material to this suit.
4. That the Imo State Government by letter dated 7th March, 2006, addressed to the 3rd defendant, alerted the 3rd Defendant of an imminent threat to law and order in the 3rd defendant and instructed the 2nd defendant, in his official capacity as Chairman of the 3rd defendant, to take appropriate action, to forestall such threat.
5. That in consequence of the fact pleaded above, the 3rd defendant, in meeting of the Executive Council decided and in line with the directive of the State Government, addressed a letter through my office to the 1st plaintiff, advising the 1st plaintiff to retrace his steps and to desist from any such act that would cause possible breach of peace in the 3rd defendant.
6. That the above letter which in any event was never defamatory of the plaintiffs was written by the 1st and 2nd defendants in our official capacities as officers of the 3rd defendant and in full compliance with the instruction and directive of the Imo State Government.”

The Appellants, during cross examination of 1st Appellant at pages 86–87 of the Record clearly indicated their position as the Secretary and Chairman of the 3rd Defendant respectively. On pages 39–42 and 53–56 of the Record, the then 1st Plaintiff Dr. P. A. C. Agwaramgbo acknowledged this fact when he stated in his unnumbered statement on oath at page 40 as follows:-
“The 1st Defendant was the Secretary, Oru West Local Government Council when he (the 1st Defendant) wrote the defamatory publication subject matter of this suit pursuant to the instruction of the 2nd and 3rd Defendants. The 2nd Defendant was at the time the Executive Chairman of the 3rd Defendant Council.
The 2nd Defendant used his position as Chairman of the 3rd Defendant Council to forward documents emanating from one Chief Joel C. Onyejekwe to the Governor of Imo State for recognition of the said Chief Joel C. Onyejekwe as Eze of Isi Mgbidi, even though the said Chief Joel C. Onyejekwe was at no time identified, selected, appointed or presented to the 2nd Defendant before he (2nd Defendant) surreptitiously forwarded documents to the Governor of Imo State purporting the same to be documents by which the said Chief Joel C. Onyejekwe was presented. No person(s) presented Chief Joel C. Onyejekwe to the 2nd Defendants.”

Under cross examination at page 45 of the Record, Dr. P. A. C. Agwaramgbo in answer to a question put to him as CW1 to the effect that the publication which allegedly defamed him was the one authorised by the 3rd Defendant, stated:-
“It is not correct. It is the publication made by the 1st and 2nd and 3rd Defendants.”

I have gone this while to demonstrate that the 1st and 2nd Appellants at the material time to this suit were servants of the 3rd Defendant which fact was stated by the Appellants and accepted by Dr. P. A. C. Agwaramgbo.

The Appellants in paragraph 3.1 of their Amended Appellants’ Brief clearly highlighted the facts that they at all times material to this suit were servants of the 3rd Defendant, which, by notice granted on 22/7/2008 by the learned trial Judge, was joined as a 3rd Defendant at the instance of the Respondent. (See page 5 of the Record of Appeal).

From the analysis above, it is clear that the 1st and 2nd Appellants were agents of the 3rd Defendant, who carried out their functions under its instruction and supervision.

Therefore Agency relationship existed between the 1st and 2nd Appellants and the 3rd Defendant which was the Oru West Local Government Council. Consequently, the 1st and 2nd Appellants were the agents of the 3rd Defendant.

The Appellants, being Secretary and Chairman of the 3rd Defendant, were public officers and this fact was well-known to the Respondent. Hence the joinder of the 3rd Defendant to the suit. The Learned Trial Judge captured this in his review of the case at page 160 of the Record.

As at 22/7/2008 when the 3rd Defendant was joined it was obvious that the 1st and 2nd Appellants could not be successfully proceeded against in this suit. Hence in the affidavit in support of the motion seeking to join the 3rd Defendant it was averred in paragraphs 3 and 4 of the said affidavit of Nze J. C. Okike, the Respondent herein, thus:-
“3. The Defendants/Respondents filed in Court their statement of defence where they pleaded that they acted in their capacities as servants, pursuant to the instruction of the party sought to be joined, Oru West Local Government Council.
4. By the defence raised, the party sought to be joined, Oru West Local Government Council, becomes a necessary party to this suit, and the same cannot be completely and effectually determined without making it party thereto.”

I am of the valid opinion which I hold that the suit as earlier constituted was incompetent and capable of ousting the jurisdiction of the trial Court. This is because Exhibit “A” is self-explanatory. It speaks for itself.

It is the cause of action in this suit. The Respondent knew that it was authored by public servants or officers of Oru West Local Government Council. There was no way the Respondent could have instituted the suit without joining the 3rd Defendant ab initio. If a suit is improperly constituted it would render the Court without jurisdiction to entertain and determine same.

Going by the above analysis, I find it difficult to be persuaded by the Respondent that it was the defence of the Appellants that made them to realise that Oru West Local Government Council was a necessary party in the determination of the suit.

Since the trial Court realised at the judgment stage, and by the defence put up by the 3rd Defendant that the suit against the 3rd Defendant, which was a known principal of the Appellants, cannot be proceeded against it, the suit ought to fail as it was rightly adjudged statute barred.

Flowing from what I have been saying I hold that this issue should be resolved in favour of the Appellants. I am supported in my view by the decision of this Court in ADIGHIJE VS. NWAOGU (2010) ALL FWLR (PT. 521) 1512 where this Court per Eko JCA (as he then was) held thus:-
“Where the principal is disclosed or known and could be sued, the agent should not be sued or proceeded against as a necessary party.”

This is the position of this case. I therefore resolve this issue in favour of the Appellants and against the Respondent. The resolution of this issue has effectively determined this appeal which is meritorious and is hereby allowed by me. The suit of the Respondent at the Lower Court was therefore incompetent and should be and is hereby struck out. The judgment of the Lower Court is hereby set aside together with the orders of awards therein made. The Appellants are entitled to cost of this appeal assessed at N50, 000.00 to be paid by the Respondent.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have just received today the draft of the judgment to be delivered by my learned brother I. A. Andenyangtso, JCA I have not had the opportunity of reading same.
However, as I understand that the judgment will be expiring today or thereabout, I am constrained to abide by whatever is in the leading judgment.

ITA GEORGE MBABA, J.C.A.: I agree completely, with the reasoning and conclusions of my lord, ANDENYANGTSO, JCA, in the lead judgment.
I believe that, with the resolution of the first issue for determination in favour of the Appellants, there is no need to consider the other issues for the determination of the Appeal.
I abide by the consequential orders in the lead judgment.

Appearances:

P. OGUCHIENTI, ESQ. For Appellant(s)

EPELLE, ESQ. For Respondent(s)