KEYSTONE BANK v. OFFICE DEVICES LTD & ANOR
(2020)LCN/14003(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, March 19, 2020
CA/L/1196/2016
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Obande Festus Ogbuinya Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
KEYSTONE BANK LIMITED APPELANT(S)
And
1. OFFICE DEVICES LIMITED 2. MR. BONI OBIEZE RESPONDENT(S)
RATIO
DEFINITION OF THE TERM “DEFAMATION”
In FAYAN v UBA (2013) LPELR – 20540 (SC), the apex Court held thus;
“Defamation” is defined at page 448 infra thus: 1. “The act of harming the reputation of another by making a false statement to a third person…. 2. A false written or oral statement that damages another’s reputation.” It goes further: “Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally or which tends to make them shun or avoid that person…. The wrong of defamation consists of the publication of a false and defamatory statement concerning another person without lawful justification.”
per KEKERE-EKUN, J.S.C (Pp. 17-18, PARAS. E-B)
See THE SKETCH PUBLISHING CO LTD & ANOR v AJAGBEMOKEFERI (1989) LPELR 3207 (SC). PER OBASEKI-ADEJUMO, J.C.A.
INGREDIENTS TO BE PROVED IN A DEFAMATION
The ingredients to be proved in a defamation has been listed in a host of cases, one of which is NWDM LTD v SMOOT & ANOR (2011) LPELR – 4619 (CA); –
“In the case of: UNION BANK OF NIGERIA LTD. V. OREDEIN (1992) 6 NWLR (Pt. 247) P. 355, Tobi JCA (as he then was) listed the essential ingredients of the tort of defamation and libel which a plaintiff must prove in order to succeed in his claim. These requirements are that, the publication was in writing, that, it was false, that, it was defamatory of the plaintiff, that, it was published to a third party and that, it was the defendant who published the defamatory words.”
per OMOLEYE, J.C.A (P. 36, PARAS. D-F)
See alsoEKONG v OTOP & ORS (2014) LPELR 23022 (SC). PER OBASEKI-ADEJUMO, J.C.A.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.(Delivering the Leading Judgment): This appeal stems from the Judgment of Honourable Justice S. O. Nwaka of High Court of Lagos State dated the 29th day of June, 2016, delivered 8th July, 2016 wherein the lower Court made the following orders in respect of the Claimants claim:
1. A restraining perpetual injunction on the defendant and its agents from making any complaint to EFCC or any law enforcement agency or regulatory authority based on the allegation that the Claimant incurred any criminal liability to the Defendant relating or connected with any banking relationship
2. An order that the Defendant withdraw the publication and further publication in CRMS record of the CBN classifying the Claimant as bad debtors.
3. A retraction and apology by the defendant in 3 widely read national newspapers of the defamatory publication against the Claimant.
4. A sum of N20, 000, 000 (Twenty Million Naira) as special and general damages. Parties to bear their costs.
5. An order for the Claimants to pay the Appellant the outstanding loan less the interest and other charges.
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The Appellant being dissatisfied with the judgment of the lower court, filed a Notice of Appeal dated 8th August, 2016 and applied by for stay of execution of the judgment pending the determination of the Appeal by a Motion dated 8th August, 2016 both filed 9th August, 2016.
The parties in compliance of the rules of court filed brief and exchanged same. The Appellant’s brief was dated 13th December, 2016 and filed same date. It is settled by Seun Omotoba Esq., Amobi Agu Esq., Niran Orojinmi Esq. of Seun Omotoba & Co wherein four (4) issues for determination were nominated thus:
a. Whether the Learned trial Judge was right by holding the Defendant/Appellant liable in damages for publication of the alleged defamatory content the substance of a petition to the Economic and Financial Crime Commission (EFCC) without more and Whether the Court below did not misdirect itself in the law concerning when a claim for libel is actionable per se
b. Whether the trial judge exercised his discretion judicially and judiciously in awarding excessive and arbitrary sum of N20, 000, 000.00 (Twenty Million Naira) as special and general damages having regard to
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the facts and circumstances of the case and whether the trial judge can grant reliefs as contained on the face of the statement of claim even when the facts and evidence before him does not support the grant of the relief.
c. Whether the Court was right to have awarded the sum of N20, 000, 000.00 (Twenty Million Naira) to the Claimants/Respondents on the account of a speculative loss suffered by a sister company without establishing its financial status by virtue of its statement of account duly filed in accordance with the provisions of the Companies and Allied Matters Act 1990.
d. Considering the totality of both oral and documentary evidence put forward by the Appellant particularly material details in exhibits CW1 and facts contained in B1 – B7, whether the learned trial Judge was right in his decision that the debts of the Respondents.
The Respondent’s brief was settled by Kenneth I. Ugwu of Equity Chambers and filed 19th of October, 2017. Three (3) issues were formulated thus:
1. Whether the learned trial judge was right in holding the Appellant liable in damages for defamation based on the contents of the
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Appellant’s petitions to the Economic and Financial Crimes Commission (EFCC) and the Appellant’s negative Credit Risks Management System (CRMS) report against the Respondents to the Central Bank of Nigeria (CBN) and if the answer is in the affirmative, whether this Honourable Court should interfere with the judgment of the lower Court.
2. Whether the learned trial judge was right in awarding 20, 000, 000. 00 (Twenty Million naira) as special and general damages against the Appellant for the defamatory publications to the EFCC and the negative CRMS report to the CBN and if the answer is in the affirmative, whether this Honourable Court should interfere with the findings and judgment of the lower court on damages.
3. Whether the findings and judgment of the lower Court on the Appellant’s counter claim was perverse in holding that the repayment of the alleged erroneous credit to the Respondents without interest and other charges.
APPELLANT’S ARGUMENTS
Appellant submits that the learned trial judge erred in law which led to a serious miscarriage of justice in holding in her judgment particularly that the alleged
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defamatory contents the substance of a petition to the Economic and Financial Crime Commission (EFCC) without more is defamatory of the Respondents.
CHIEF EDE OSAYANDE & 2 ORS v OBONG OKONON EDEM UDO ETUK (2008) 1 NWLR (PT. 1068) PG. 215 – 216 RATIO 2; MAMMAN v SALAUDEEN (2005) 18 NWLR (PT. 958) 478, P. 239, PARAS D – E.
Appellant further submits that the Economic and Financial Crime Commission being an appendage of the Nigerian Police Force has the power to receive petition or complaint from the general public including corporate organisation; Section 7, Section 38, Section 16 of the Economic and Financial Crimes Commission Act, Cap E 1. 2004.
The Respondents being aware of the position of the law that a petition/complaint to the Law enforcement agency does not amount to defamation, made spirited effort to make the alleged complaint of the Appellant defamatory mentioned the names of people that read the petition but failed to call even one of these persons as witness to support his case for defamation.
YESUFU v GBADAMOSI (1993) 6 NWLR 9 PT. 299 AT 373 PARA D; SANYA AYENI, ESQ v NAVY CAPTAIN ABIMBOLA ADESINA (2007) 7 NWLR
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(PT. 1033) PG. 339 RATIO 5; OLOHUNDE v ADEYOJU (2000) 10 NWLR (PT. 676) 562; NWADINOBI v BOTU (2000) 9 NWLR (PT. 672) 220 AT 229; DUMBO v IDUGBOE (1983) SCNLR 29; Z.P INDUSTRIES LTD v SAMOTECH LTD (2007) 16 NWLR (PT. 1060) 315.
Appellant submits on the dud cheques issued by the 2nd Respondents that the cheques were issued after he had filed his suit and the act was premeditated. The bank reserves a right to seek justice on that crime irrespective of the outcome of this case.
Counsel opines that the CRMS report of 2002 does not amount to publication in defamation on the grounds that the Respondents continued to enjoy the reputation they claimed to have lost. The purported CRMS report of 2007 was not made by the Appellant and it is an unsigned document, therefore it is worthless and void. Counsel submits that the alleged CRMS report 2007 is incompetent and value cannot be attached to it and cannot amount to publication in a defamatory matter; FASEHUN v A.G FEDERATION (2006) 6 NWLR (PT. 975) 141 was relied on and all other reliefs granted by the trial Court to the Respondents in the suit cannot be granted since they are predicated on special
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damages.
The Appellant on issue 2 submits that the trial judge did not justify the award of damages or examine the case before it and did not distinguish between bona fide and mala fide conduct on the part of the Appellant. The mere complaint to the officers of the Economic Crimes Commission without more and the publication of computer printout of an unsigned CRMS report 2007 cannot constitute defamatory content, there was no need for a public apology in three national newspapers when the alleged publications are not in the public domain.
Counsel contends that the learned trial judge erred in law by issuing a restraining order against the Appellant and its agents from any form of complaint against the Respondents regardless of the facts that the 2nd Claimant/Respondents in his evidence admitted issuing a dud cheques to the Appellant during the pendency of the suit at the court below.
On issue 3, Appellant submits that the award of N20, 000, 000. 00 (Twenty Million Naira) to the Respondents was not supported by any credible evidence during the trial of the suit.
Appellant further submitted that the trial judge failed to recognize that there
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are two Claimants in the suit; a company and a human being and that mode of assessing damages for a company is different from a human being.EDEM v ORPHEO NIG LTD (2003) FWLR (PT. 176) 589; AWONIYI v REGISTERED TRUSTEES OF AMORC (SUPRA); YESUFU v GBADAMOSI (SUPRA); UYO I, HIS HIGHNESS v EGWARE, FELIX ALL NLR (1974) 264 SUIT NO S.C 266/72; EJABULOR v OSHA (1990) 5 NWLR (PT. 148) 1 at 6; Sections 84,102 and 104 of the Evidence Act, 2011.
Appellant on issue 4, submits that holding over of money that does not belong to the Claimants even after the Claimants were notified of the entry is conversion and it is a crime punishable in our Criminal Legal System. The Respondents did not normalize the entry by signing the commercial paper or authorize the reversion, the Appellant had no power to unilaterally transfer money from the account of a customer; ADEJUWON v COOPERATIVE BANK LTD (1992) 3 NWLR (PT. 228) 251 AT 259.
Appellant further submits that the appropriate method of establishing indebtedness of a customer to his bank is by proof of entry in a banker’s book. Sections 89 (h) & 90 (1) (e) of the Evidence Act as interpreted in the case of
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YASSIN v BARCLAYS BANK D.C.O (1968) NMLR 380 and YESUFU v ACB LTD (1976) 4 SC. 1 were relied on.
It is the Appellant’s submission that Exhibit CW1 – 16 Annexure 32 has settled the issue of interest, excess COT and un – credited Cheques lodgement, and the statement of account shows that bank charges interest only when account is not debit balance apart from the conventional interest charges on individual circumstances, and the issue of interest charged on the erroneous lodgement of the 1st March, 2003 was again evidently settled by a close evaluation of Exhibits B1 – B7 particularly Appendix III.
Counsel contends that from the above facts and evidence, it is clear that both the Appellant and Respondents have buried their differences on the issue of interest by mutual agreement and the Respondents have subsequently made payments on these mutual agreements.
Counsel further contends that the lower Court having found that the Respondents owe the Appellant loans and if the Court is not convinced on the Respondents paying interest of the erroneous entry, separate the 2 (two) loans in its judgment so as to enable parties interpret the
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judgment of the lower Court without rancour.
In finality, the Appellant submits that the Respondents became aware of the erroneous entry of 31st March, 2003 but choose to keep the money because of the immense benefit accrued to him.
Appellant urges the Court to resolve the issue in their favour and to reverse the judgment of the lower Court which stated that the Appellant is not entitled to interest on their loans.
RESPONDENTS’S ARGUMENTS
Counsel submits that the Appellant’s issue one is incompetent and liable to be struck out as the lower Court did not hold the Appellant liable in damages for the publication of the alleged defamatory content the substance of the petition to the Economic and Financial Crimes Commission (EFCC); and that the formulation of issue one is wrong as it did not arise from the judgment appealed against and that issue is incompetent, academic and liable to be struck out or discountenanced as any issue for determination must arise from the judgment appealed against otherwise such issues are incompetent and liable to be struck out. NZENWATA v NZENWATA (2017) 4 WRN AT PAGES 69 AT PG 92 – 94.
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The Appellant was held liable for defamation based on the contents of the petitions to the EFCC (Exhibits A1 – A4 and B1 – B7) and the negative CRMS report to the CBN portraying the Respondents as bad debtors.
Counsel further submits that the publication of the petitions to the EFCC and the negative CRMS report to the CBN was proved at the lower Court as CW1, CW3 and CW4 were subpoenaed by the Respondents to prove that they received, read and acted on these defamatory publications. Counsel opines that the lower Court’s judgment cannot be faulted on this ground. The Appellant also admitted publishing these defamatory materials in the Appellant’s statement of defence and counter claim and witness statement. The lower Court as right in holding that defamation was proved. NBC PLC v UBANI (2013) 10 – 12 SC PG. 95 AT 133 LINES 20 – 25; IWUEKE v IMO BROADCASTING CORP. (2005) 10 SC. PG. 55 AT PARA. 40; ECONOMIDES v THOMOPULOS & CO. LTD (1956) 1 FSC; LASUN v AWOYEMI (2009) 16 NWLR PT. 1168, PG 513 AT 549 PARAS. D – H; BUHARI v OBASANJO (2005) VOL. 19 WRN 1.
Respondents contend that the Appellant’s argument on
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qualified privilege should be discountenanced as the suit at the lower Court was not against EFCC. The Appellant never pleaded or proved qualified privilege at the lower Court. The Respondents also pleaded and proved malice in the publications on the part of the Appellant, thus negating any defence of qualified privilege on the part of the Appellant.
On issue 2, the Respondents submits that an award of damages is the primary remedy for defamation and the purpose is to compensate the claimant for the effects of the defamation, SABRU MOTORS v RAJAB ENT. (2002) 4 S. C (PT. II) 67; TSOKWA OIL MARKETERS CO. LTD v BANK OF THE NORTH (2002) 5 S.C (PT. 2) 59; UBN PLC v IDOWU (2017) 2 WRN 1 AT PG. 168 AT 173, LINES 20 – 25; EJABULOR v OSHA (1990) 7 S.C (PT. II) 157.
And in libel cases damages are at large because the real damages cannot be ascertained and established,UBA PLC v OMIYI (2010) 1 NWLR PT. 1176 PG. 640 AT 659; ASHEIK v M. T NIG. LTD (2010) 15 NWRL PT. 1215 PG. 114 AT 167; ACCESS BANK PLC v M.F.C.C.S (2005) 3 NWLR PT. 913 PG. 460 AT 476 PARA. D.
Counsel opines that the Appellant did not show any iota of remorse or regret throughout the
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whole proceedings at the lower Court and did not fail to seize every opportunity both at the trial and appellate Courts to refer to the Respondents’ action as “criminal”, “fraudulent” etc. These acts clearly show the Appellant as deserving of the quantum of damages ordered against it by the trial Court.
Counsel further opines that the quantum of damages awarded in a successful libel case is at the discretion of the Court and that a Court’s award should not be overturned unless it was out of all proportion. INLAND BANK (NIG) PLC v F & CO. LTD (2010) 15 NWLR PT. 1216 PG. 419.
The Respondents in issue 3 contends that the Appellant never demanded the Respondents to authorize the reversal of the erroneous credit and the Respondents refused. Respondents further urge the Court to discountenance such allegation, which the Appellant is introducing for the first time without the leave of the Court. A. G KWARA STATE v GBADAMOSI (2016) 27 WRN PG 17 LINES 10 – 20 was cited in aid.
Counsel submits that the Appellant failed to specifically plead and strictly prove its counter claim, being an item of special damages
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with the necessary particulars and details but the Appellant failed woefully in doing this; B. B APUGO & SONS LTD v O.H.M.B (2016) 30 W.R. N PG. 1 AT 52, LINES 25 – 35; AJASA v ELEGBEDE (2017) 8 WRN. PG. 53 AT 95 LINES 25 – 45.
Respondents submits that the judgment of the lower Court was not preserve in failing to award interest to the Appellant, as the Appellant never proved any unpaid loan or credit and urge the Court to resolve the issue in their favour.
Having perused the issues of both parties, which I find similar though separately couched; I find the issues of the Respondents more direct and simplistic in its phraseology.
I shall therefore adopt the Respondents’ issues in resolving this appeal.
RESOLUTION.
The basis of this action in the lower Court are letters written to EFCC; Economic and Financial Crime Commission and Central bank which the Respondents claims tarnished their good image, lowered their estimation in the minds of ordinary members in the society, subjected them to odium and ridicule and they have suffered loss.
The issue; whether the lower Court was right in holding the Appellant
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liable in damages for defamation based on the content of the Appellant’s petitions to the EFCC and the CRMS (Credit Risk Management systems report) to the CBN, before going into this issue it is important to establish whether there was a defamation on the path of the Appellant.
In FAYAN v UBA (2013) LPELR – 20540 (SC), the apex Court held thus;
“Defamation” is defined at page 448 infra thus: 1. “The act of harming the reputation of another by making a false statement to a third person…. 2. A false written or oral statement that damages another’s reputation.” It goes further: “Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally or which tends to make them shun or avoid that person…. The wrong of defamation consists of the publication of a false and defamatory statement concerning another person without lawful justification.”
per KEKERE-EKUN, J.S.C (Pp. 17-18, PARAS. E-B)
See THE SKETCH PUBLISHING CO LTD & ANOR v AJAGBEMOKEFERI (1989) LPELR 3207 (SC).
In this appeal, it’s not in doubt that the publication complained of was in
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writing.
The ingredients to be proved in a defamation has been listed in a host of cases, one of which is NWDM LTD v SMOOT & ANOR (2011) LPELR – 4619 (CA); –
“In the case of: UNION BANK OF NIGERIA LTD. V. OREDEIN (1992) 6 NWLR (Pt. 247) P. 355, Tobi JCA (as he then was) listed the essential ingredients of the tort of defamation and libel which a plaintiff must prove in order to succeed in his claim. These requirements are that, the publication was in writing, that, it was false, that, it was defamatory of the plaintiff, that, it was published to a third party and that, it was the defendant who published the defamatory words.”
per OMOLEYE, J.C.A (P. 36, PARAS. D-F)
See alsoEKONG v OTOP & ORS (2014) LPELR 23022 (SC). In this case the publication to EFCC dated 3rd August, 2006 and in respect of a loan default and which was followed up by a detailed report on Office Device Ltd dated 17th April, 2007. It was a petition to the EFCC which by law is empowered to receive such petitions and investigate.
This is reinforced by the decision in EWULO v EFCC & ORS (2015) LPELR – 40912 (CA) thus;
“However, I wish to state
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further by adopting the reasoning of per Abiru, JCA in HASSAN V. EFCC (2013) LPELR – 22595 (CA), PP. 39-40, paras F – E) where his Lordship held thus: “It is trite that once criminal allegations are made against a citizen, the police has a constitutional and a statutory duty to investigate the allegations…and in carrying out these tasks, the police is empowered under the provisions of Section 24 of the Police Act to arrest without warrant any person whom any other person charges with having committed a felony or misdemeanour – Ibikunle v. State (2007) 2 NWLR (pt. 1019) 546. provided, as stated in Section 27 of the Police Act, that a person so, arrested without a warrant shall be taken before a magistrate within a reasonable time or granted bail with or without sureties at the police Station. Reading these provisions of the police Act along with the provisions of Sections 35 (1) (c), 41 (2) (a) and 45 of the Constitution, it is clear that where it is shown that the police acted reasonably within its powers under the Police Act in the investigation of a criminal complaint and with reasonable grounds to believe that a person had committed a criminal offence or
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is likely to commit one, the necessary curtailment of the fundamental rights of such a person cannot amount to a breach of that person’s fundamental rights – Onah v. Okenwa (2010) 7 NWLR (pt. 1194) 512.” (Underlining mine). See also AGBI v. OGBEH (2005) 8 NWLR (pt. 926); CHRISTLIEB PLC v. MAJEKODUNMI [2008] 16 NWLR (PT. 1131) 324.”
per OBASEKI – ADEJUMO, J.C.A (Pp. 38 – 40, PARAS. F-B)
The police powers are similar to that of EFCC even more by virtue of Sections 7 and 38 of the EFCC Act, wherein the powers to investigate includes Section 7 (2)c; the failed bank (recovery of debts and financial malpractices in banks) act as amended, d; the banks and other financial institutions act 1991 as amended.
Therefore, it cannot amount to a defamation, especially as it’s not in dispute that there was an existing debt to be paid before the erroneous payment of N20, 000, 000. 00 (Twenty Million Naira) and the Respondents despite notification drew down the account and proved evasive to rectify the amount converted to his business funds, these funds belong to depositors’ fund and is not free money hence the letter to the EFCC.
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I cannot shut my eyes to the admission by the Respondents at page 662 of vol 11 of the records thus;
“A: Yes, because we have never refused to pay when it was brought to our attention.
Q: By your admission that you diverted this money to another business not known to the bank, don’t you know that it’s a crime?
A: We did not divert the money, we rather are a company that seeks opportunity and invest money where we believe could quickly create returns.
Q: But you utilized this money, is here in your letter?
A: we have an account with the bank and we have the facility with the bank and if we see usable fund in the account, we usually put it in the best use so that it can pay interest
Q: In appendix two of the same statement you also offer the bank equity in one of your businesses as a way of paying back the money
A: Yes.’’
Therefore, the Respondents converted the N20, 000, 000.00 (Twenty Million Naira) in his account deliberately after being told and his consent to reverse the act was refused.
This to my mind amounts to criminal conversion; an economic crime to be handled by the EFCC. I draw strength from
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the erudite decision of this Court in a similar consideration of powers of EFCC; AHMED v FRN (2009) LPELR 8895 – (CA); this Court held on the powers of the EFCC to investigate matters and prosecute them thus;
“On the power of EFCC to prosecute and which invariably is closely linked to or based on the counts contained in the charge Sheet, S.13(2) (a) of the EFCC Act, 2004 charged the Legal and Prosecution Unit of the Commission with responsibility of prosecuting apprehended offenders. It states thus: (2) The Legal Prosecution unit shall be charged with responsibility for- (a) Prosecuting offenders under this Act. Both Sections 6 and 7 of the EFCC Act, 2004 also provide as follows: 6. The Commission shall be responsible for:- (a) The enforcement and the due administration of this provision of the Act; (b) The investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam, etc. 7(i) The Commission has power to – (a) Cause investigations to be conducted as to whether any
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person, corporate body or organization has committed an offence under this Act or other law relating to economic and financial crimes. (2) In addition to the powers conferred on the Commission by this Act, the Commission shall be the coordinating agency for the enforcement of the provision of- (f) any other law or regulation relating to economic and financial crimes, including Criminal Code and Penal Code (Emphasis added) I ask: What manner of enforcement is it if it does not or cannot be extended to cover prosecution of offenders In the construction of the provisions quoted above, I have had recourse to invoke and consider S.1 of the Interpretation Act, which provides thus: This Act shall apply to the provisions of any enactment except in so far as the contrary intention appears in this Act or the enactment in question. Consequent thereto, I have also invoked S.10 (1) and (2) of the same Interpretation Act, which states:- (1) Where an enactment confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as the occasion requires. (2) An enactment which confers power to do any act shall be construed as also
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conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it. Enforcement means to enforce which is also an act. To my mind and understanding, the power to prosecute in the given circumstances of this case in so far as enforcement is concerned is reasonably necessary in order to enable the act of enforcement to be done or incidental to carrying out the vested power. It is also to be noted that S.18 (1) of the Interpretation Act, states that, “references to the doing of an act shall be construed accordingly.” In the instant case, and in agreeing with the standpoint of the Respondents herein, regarding the limit or extent of power of EFCC to investigate, enforce and prosecute offenders vis-a-vis any other law or regulation, the learned trial Judge said this much: As I have said earlier, the investigative power of the Commission under Sections 6(b) and 7 (1) (a) and (2) (f) is not limited to economic and financial crimes provided in Sections 14-18 but extends to all other financial crimes in any other law or regulation in the country. The words “under this Act or other law relating to economic and
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financial crimes” under Section 7(1) (a) could only mean that the provision of other laws and regulations mentioned in Subsection (2) of Section 7 are subsumed in the EFCC Establishment Act, 2004 and that being the case, the Commission has power under Section 13(2) to prosecute such offences so long as they are financial crimes. One cannot but agree with the learned trial Judge, that in a sense, the provisions of any other law or regulation inclusive of both the Criminal Code and Penal Code are deemed to have been incorporated therein, in so far as they relate to the commission of economic and financial crimes.”
per OREDOLA, J.C.A (Pp. 13 – 16, PARAS. A-D)
I do not find any defamation here, if the words used were correct in the light of the circumstances, it was a fair statement. See; CHIEF EDE OSAYANDE & 2 ORS v OBONG OKONON EDEM UDO ETUK (2008) 1 NWLR (PT 1068) PG 215-216 where NWGUTA, JSC held that;
“citizens of this nation who have genuine grounds for complaints to the police will out of fear of being held for libel in damages think hard and twice before making a complaint to the police ….’’
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This also will apply to EFCC.
See also; MAMMAN v SALAUDEEN (2005) 18 NWLR (PT 958) 478. The EFCC officials have a duty to receive information. In all it was a mere complaint in compliance with the law.
On the other hand, there was no witness called, his evidence was that the EFCC official read it out to people there, this needs proof.
In ONWURAH & ORS v MICHEAL NWOZOEKWE NWUMEH & ORS (2016) LPELR – 40304 CA, the Court held that the person to whom it was published must possess knowledge which would suffice to enable him realize that the matter was defamatory or of the claimant
The requirement of proof is not of what he thinks of his reputation but what the 3rd party thinks of his reputation, this the Respondents failed to show by credible evidence of a 3rd party not named but clearly identifiable, the defamation was not actionable per se. See; OGBONNAYA v FBN PLC (2015) LPELR – 24731 CA; GIWA v AJAYI (1993) 5 NWLR (PT 294) 423; DIN v AFRICAN NEWSPAPER NIG LTD (1990) LPELR – 947(SC).
In UNITY BANK PLC v OLUWAFEMI (2006) LPELR – 9847 (CA), this honourable Court on what a plaintiff must prove in an action for defamation held
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thus;
“The learned trial Judge could not have been right in awarding this sum or any other sum of money in favour of the Respondents as indeed there was no defamation. As earlier stated in the body of this judgment no member of the public gave evidence of his impression of the Respondents – evidence that as a result of the alleged libellous matter, he does not any longer hold the Respondents in the same high esteem as he used to do. The expressed impression of others about the person whose reputation has been tarnished by an alleged act of defamation be it libel or slander is undoubtedly the most important ingredient in the tort of defamation. Neither the outward manifestations or avoidance of the person allegedly defamed nor the unwillingness to smile with that person are sufficiently indicative that he is no longer regarded as a person to draw near to. There must be evidence from that third party that he no longer holds the person allegedly defamed in the same high regard that he used to do. In this regard the well-known saying that “actions speak louder than voice” is untenable.”
per ALAGOA, J.S.C (Pp. 40 – 41, PARAS. C – B)
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The 2nd Respondents testified at page 663 par 8 of vol 2 of record thus;
“A: I have no problem with the petition to EFCC but I have problem with the content of the petition which said that “we fraudulently obtain money and diverted it” and we felt that this was not a confidential letter it was put on the table and a lot of people saw it and we didn’t fraudulently obtain any money hence the bank wrote to us that they erroneously deleted our account. But I expected that they should (sic)have written to EFCC that they erroneously deleted the account of office devices and they are having a disagreement on terms of payment and not that we fraudulently obtain money and diverted it, that was the only issue we had with them.
Q: So your problem with the petition is the heading not the content?
A; The content all together from heading to content…..’’
This is the complaint upon which the defamation was filed, the scenario as earlier stated, is that upon notification that the sum of N20, 000, 000. 00 (Twenty Million Naira) was erroneously credited into his company account, he demanded for statements to be sure for which
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he was debited for such services, while the Bank awaited a directive to reverse the account, the Respondents withdrew all the amount until it as a zero credit balance, he deliberately and fraudulently cleared the account knowing that it was not his funds and he neither solicited for same, the simple responsible thing was to have given authority to reverse same, but hear his testimony under cross examination; “I did not divert the funds I used it for another business.”
Put in an economical way, he converted the money, what is the difference between 6 and half a dozen?
On the CRMS report of 2002, I find that having continued cordial banking relationship there was no reputation damaged, besides it was a policy of central bank and the bankers are under a duty to file it at the credit risk registry to alert other bankers, the lower Court based its judgement on this report which cannot amount to defamation upon which any claim can be based.
It is important and relevant to this judgement to state that the CRMS is a regulation for bank by virtue of Section 31 (1) (2) a – c (3) – (8) of Banks and Other Financial Institutions Act (BOFIA) LFN 2004.
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The question is; can one be liable for defamation in complying with a regulation affecting its professional procedure? I am afraid the answer is No! It would be absurd and make nonsense of the intention of the law.
Furthermore, the second CRMS dated 26th March, 2007 contained a different amount, three times less than the sum owed the Appellant. The Respondents had under cross examination admitted several accounts in different banks and was not sure of the author.
What was frontloaded was not from the Appellant, it confirms that Appellant had a history of debts in other banks unknown to the Appellant, what was tendered was a computer printout was not in respect of the same account but a sister company. It’s trite that companies are creation of the law and are independent of each other. Again, nobody apart from those legally authorized to access the information was called as a 3rd party, the GTB staff was authorised therefore no identifiable witness was called to testify of their impression of the Respondents or the effect of the CRMS report thereof
The print out was not tested by virtue of Section 94 of the Evidence Act to
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admit computer printout in evidence. It is inadmissible under the law and I so hold.
In the light of the analysis, I am satisfied that the claim of defamation in its publication to a 3rd person has not been made out to consider liability thereon. The ingredients of defamation have also not been proved; the case of the Respondents is bound to collapse.
It is obvious that parties fell out and relationship broke down when the Respondents refused authorization to reverse the erroneous payment into its account and drew down the whole amount, all attempts to rectify same in the records by commercial paper was turned down, the only thing left for the bank to do is to regard same as a loan, having utilized the whole amount for his business. See page 648 of records, volume 11 admitted by Respondents.
This is more than all the words used in the petition, it’s like knowingly picking somebody else property the post man mistakenly delivered to your place or left in your house and converting same to yours or a case of knowing receiving stolen property and refusing to surrender it to the owner saying you did not know it was stolen or left in your place.
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There is evidence that he was notified timeously, the officer who committed the error was sacked yet the beneficiary shouts defamation knowing that the law does not allow the bank tamper with money in a customer’s account.
In METROPOLITAN ESTATES v UNION BANK (2018) LPELR – 43989 (CA) the Court held;
“What a claim of money had and received connotes has been enunciated in many cases. See the case of AEROFLOT SOVIET AIRLINES V. UBA LTD [1986] 1 NSCC 698 wherein the Supreme Court said thus: – “The common law action for money had and received has always been used, wherever conversion lies, and money has been received on behalf of the plaintiff by the defendant, to compel the defendant to restore such money to its true owner. Since the action for money had and received is alternative to conversion, the plaintiff is entitled to waive the wrong and sue for money had and received. As Lord Wright expressed it in Fibrosa Spolka Akeyna v. Fairbarn, Lawson Combe, Barbour Ltd. (1943) A.C. 32 at p.64, ‘the common law still employs the action for money had and received as a practical and useful, if not complete or ideally perfect instrument to
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prevent unjust enrichment, aided by the various methods of technical equity which are also available, as they were found to be in Sinclair v. Brougham.” The action for money had and received, though for the purposes of pleading made alternative to an action for conversion, is an independent cause of action; and lies even where the action for conversion may be unavailable. – see Fibrosa Spolka Akeyna v. Fairbaim, Lawson, Combe Barbour Ltd. (1943) A.C. 32. There seems to be no doubt that a customer’s claim to moneys received by a banker on his account would be for money had and received. Hence when the plaintiff, a customer of a bank, in an action for money had and received proves that the defendant banker has received on his account the money claimed, the plaintiff is undoubtedly in a position to receive such money. In an action for money had and received, the negligence of the defendant is not a necessary element of the liability. The essential ingredients are that money due to the plaintiff has been paid to the defendant and who has been unjustly enriched by such payment. It is therefore unconscientiously and contra aequieetbonun for the defendant to retain
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it as against the plaintiff. The Court of Appeal would seem to have been misled by the contention of the Appellant before them and therefore accepted the submission that the learned trial judge decided the case before him and found Respondents liable on the principle of negligence. Nothing is further from the true legal position. I agree with the view of Mr. Popoola for the Appellants that the use of the word “negligence” in the context can only connote carelessness.
See also the decision of this Court in the case of OZIMS V. ANORUO [1991] 3 NWLR (Pt. 181) 571 wherein Oguntade, JCA; (as he then was) dwelling on the legal basis of money had and received said thus: – “An action for money had and received, simpliciter, is based on what is generally described as quasi-contract. It is an equitable remedy for which the action lies for the recovery of money had and received under circumstances where any notion of an actual contract is excluded. It lies for money paid by mistake; or upon a failure of consideration, or for money got by imposition, express or implied; or extortion, or oppression; or an undue advantage taken of a person’s situation, contrary to the
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laws made for the protection of persons under those circumstances – see Moses v. Macferlan (1760) 2 Burr 1(X) 5, 1012 per Lord Mansfield. When an action is based on money had and received, the relationship of the parties is not looked upon as contractual giving rise to an obligation to repay. It is imposed by the Court under circumstances which it considers just and reasonable having regard to the relationship of the parties on equitable grounds. In other words, it is a debt or obligation to repay constituted by the act of the law, apart from any consent or intention of the parties or privity of contract. See Brooks Wharf & Bull Wharf Ltd. v. Goodman Brothers (1937) 1 K.B. 534. These principles were examined and applied by the Federal Supreme Court in Michael Foluwase Oduwobi & Ors v. Barclays Bank D.C.O. (1962) 1 S.C.N.L.R. 226 (1962) 1 All NLR 141 at 144-145.”
per LOKULO – SODIPE, J.C.A (PP. 24 – 28, PARAS. E-B).
The Respondents disregarded all efforts to recover the said N20, 000, 000. 00 (Twenty Million Naira), it is a case of criminal conversion fit only for the EFCC to handle, I am of the view that the conduct of the Respondents is
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reprehensible and ought to be condemned, it’s a case of using the vehicle of the Court to legalize a seemingly case of fraud and conversion being perpetuated by the Respondents against the Bank, which no Court in our nation should allow.
There is no free money in the banks, all funds are depositors’ funds which would if dealt with freely or carelessly affect the economy of the country and these ripple effects lead to the bank’s failure which in turn eventually affect the common man on the street.
The lower Court did not evaluate/or glossed over the evidence place before her and thereby came to a wrong conclusion.
I resolve issue 1 in favour of the Appellant
In the light of the above analysis issues 2 & 3 have been rendered academic and have no base to stand, they also fall with issue 1.
On the counter claim of interest in respect of Exhibits CW1and B1-B7, the lower Court had held that the Respondents should pay their loan without interest. It is in evidence that as at the time the N20, 000, 000. 00 (Twenty Million Naira) was paid into the account of Respondents as admitted, the Respondents owed the sum of N18,
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600, 000. 00 (Eighteen Million, six hundred thousand Naira), see the statement of account; Exhibit CW1, the cost of printing twice was at the instance of Respondents for which charges were billed and in the absence of no consent to transfer the N 20, 000, 000. 00 (Twenty Million Naira).
The issue in issues 4 and 3 of the Appellant and Respondents’ briefs issues touch on the judgement on the counter claim.
The Appellant had filed a counterclaim against the claimant in paragraph 69 (I & II) of its statement of defence;
1. The sum of N36,560.42 (thirty-six thousand naira three hundred and seventy-one thousand, five hundred and sixty naira) as at March 2006 being the amount due to the claimant as at July 8, 2004 and interest at the rate of 19.5% per annum from July 8, 2004 until judgement and thereafter of the same rate until final liquidation.
2. Cost of this action.
The Appellant led evidence, both parties frontloaded and tendered statements showing balance in debt. I hold that there is an outstanding of loan in the account of the Respondents which has been acknowledged by the Court, I disagree with the submissions of
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Respondents’ counsel at paragraph 5.08 page 23 of the brief that the erroneous deposit of N20, 000, 000. 00 (Twenty Million Naira) wiped away the credit. It stands clear that after it was utilized it became a facility amounting to an overdraft, whether solicited or unsolicited, it’s not a free lunch, it has been used to the benefit of the Respondents.
Ordinarily, if it was granted as a loan it would also be used and interest paid there on.
Both parties reconciled the interest paid on the erroneous judgement of 1st March, 2003. The Appellant acknowledged the excess charge of N6,018,081.00 after a joint reconciliation on 19th June, 2006 Exhibit CW1 – 16 as therefore this has been factored in; see Exhibits B1 – B7 and accepted by the Respondents; see his letter (Appendix III) where he agreed to restructuring but sought for time to repay same. This, the lower Court failed to take into consideration when it referred to the contested interest charged by the Appellant.
The counterclaim is a separate claim but can be proved in the same trial such as this, it does not require an extra procedure therefore the statement of claim with which
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the Respondents was confronted is sufficient to show the status or debt profile of the Respondents whenever due and this the Appellant did under cross examination, it then behoves on the Respondents to show how he has paid this amount.
This Court reiterated what a defendant must show when he has paid up a loan in GORKEENS LTD & ANOR v ZENITH BANK (2017) LPELR – 43170 (CA);
“What is more, where a person has admitted taking a loan, the onus of proving that such loan has been paid or he did not take same, is on him. See Macaulay v. NAL Merchant Bank Ltd (1990) 4 NWLR (Pt.144) P. 283 @ 308, where, inter alia, it was held that: “In an action to enforce the repayment of a loan, once the defendant admits the receipts of the loan, the burden of proof as to repayment or as to the reasons for non-payment is on him.” The Apex Court in the case of Okoli v. Morecab Finance (Nig.) Ltd. (2007) All FWLR (pt. 369) p. 1164 @ 1184, laid down the available defence which a defendant must scale through in a summary trial as follows: “In an action placed on the undefended list, where plaintiff claims repayment of loan, the defence open to the defendant are
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only two (1) that the defendant had refunded the entire loan by the production of receipts bank tellers or any document showing that the debt was totally repaid or (2) that he never borrowed the money in the first place, he never applied for the loan or loans, he never obtained any money and that any purported application was a forgery.” It is not sufficient to merely deny taking the loan or asserting that same had been paid, if taken. What is expected of a defendant in a case of where payment of loan taken is an issue, have been spelt out in the case of Okoli v. Morecab supra page 1154, where the Apex Court said that: “…It is not enough for the defendant merely to deny the claim or aver that some payments he made were not taken into account He must set out the details and particulars of such payments. Failure of the defendant to set out a good defense satisfactory to the trial Court, his application would be considered as rightly and justifiably refused.”
per BDLIYA, J.C.A (Pp. 26-27, PARAS. A-D).
From the above, the Respondents failed to discharge the burden on him.
I therefore agree that the N20, 000, 000. 00 (Twenty Million Naira)
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drawn down by the claimant amounts to an overdraft/facility money owed to the bank and having utilized same for a profit yielding venture and held on to it till date must attract interest together with any existing loan and other legal charges due to the bank.
The Respondents would not be allowed to benefit from its wrongful acts.
It’s on this note that I set aside the orders in respect of the counterclaim and grant the counterclaim as claimed. No cost shall be awarded as the Appellant has not been able to sufficiently prove the cost.
On the whole, the appeal has merit and succeeds and is allowed.
The judgement of the High Court of Lagos per Nwaka, J is hereby set aside with cost of N300,000. 00 awarded to Appellant.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the robust judgment prepared by my learned brother, Abimbola Osarugue Obaseki-Adejumo, JCA.
OBANDE FESTUS OGBUINYA, J.C.A.: I was availed, in advance, with the leading judgment delivered by my learned brother: Abimbola Osarugue Obaseki-Adejumo, JCA I agree with the reasoning and conclusion in it. l too, allow
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the appeal in the manner decreed in the leading judgment.
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Appearances:
R. AGU with him, A. A. FAODUMOLA
For Appellant(s)
I. UGWU with him, B. A. ENEREMODA For Respondent(s)
