ECOBANK v. PAUL & ANOR
(2022)LCN/16405(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, January 18, 2022
CA/A/1105/2020
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Kenneth Ikechukwu Amadi Justice of the Court of Appeal
Between
ECOBANK NIGERIA LIMITED APPELANT(S)
And
1. AWAGU PAUL 2. CENTRAL BANK OF NIGERIA RESPONDENT(S)
RATIO:
THE PURPOSE OF EVALUATION OF EVIDENCE
Generally speaking, the purpose of evaluation of evidence is to enable a judge solely to arrive at a just determination of a case. A party who attacks a trial Court’s evaluation of evidence must examine the totality of evidence adduced and evaluated by the Court, not piecemeal. See Odunukwe v. Ofomata (1999) 6 NWLR (pt. 602) 416 at 425. It is not enough for counsel to merely allege an error without clearly demonstrating the error in the evaluation of evidence. The objective is to enable this Court to clearly see how the evaluation was carried out by that Court, failing which the allegation will count for nothing. MOHAMMED MUSTAPHA, J.C.A.
THE ESSENTIAL INGREDIENTS OF THE TORT OF DEFAMATION
The essential ingredients of the tort of defamation which a plaintiff must prove in order to succeed in his claim 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. See UNION BANK OF NIGERIA LTD. V. OREDEIN (1992) 6 NWLR (Pt. 247) P. 355.
It is very important not to lose sight of the fact that defamation generally is any imputation which tends to lower a person in the estimation of right thinking men or cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business. See BENUE PRINTING AND PUBLISHING CORPORATION VS ALHAJI GWAGWADA (1989) 4 NWLR (PT 116) 439 and OKOLIE VS MARINHO (2006) 15 NWLR (PT 1002) 316. MOHAMMED MUSTAPHA, J.C.A.
JUSTIFICATION AS A DEFENSE IN LAW
Justification is a defense to establish that the imputation in respect of which the appellant was sued is substantially true. It is a defense if the appellant can show that the statement made is true even if the statement is made maliciously; “the Law will not permit a man to recover damages in respect of an injury to a character which he does not possess.” See ASUU & ORS V OGUNSANWO (2014) LPELR-23252-CA MOHAMMED MUSTAPHA, J.C.A.
THE CONCERN OF DEFAMATION TO THE CHARACTER OF A PERSON
Defamation concerns damage to the character of the person defamed whether in libel or slander, however, where evidence discloses that the persons defamed is in fact fraudulent or a crook and his character is successfully impugned, his claim fails and the defense of justification is established because a true statement written and said about another person can never be defamatory. The written publication must be false and without lawful justification for it to be defamatory. See SKETCH PUBLISHING CO. LTD v. AJAGBEMOKEFERI (1989) 1 NWLR Pt.100 Pg.678; ESENOWO v. UKPONG & ANOR (1999) 6 NWLR Pt.608 and ILOABACHIE v. ILOABACHIE (2005) 5 SCNJ 264. MOHAMMED MUSTAPHA, J.C.A.
THE DUTY OF THE DEFENDANT RAISING A DEFENSE OF QUALIFIED PRIVILEGE
A defendant who raises a defense of qualified privilege has the duty of showing that there exist a common interest between himself, the maker of the statement and the person to whom it is communicated. On the other hand, in order to successfully plead justification, the facts relied upon must be true. In the circumstance here, the fact whether or not the allegations of the defendant in the offending publication are true is relevant only when the plea of justification is being considered. The defense of justification can be raised disjunctively or conjunctively where the latter approach is adopted it is in the alternative. Both defenses or either may avail the defendant. See A.C.E. JIMONA V. NEC LTD.(1966) 1 ALL NLR 122, 124 AND AGIDIGBI V. AGIDIGBI (1996) 6 NWLR (PT. 454) 300, 313.
The learned trial Judge found that the appellant failed to plead, much less prove justification, counsel is expected to lead sufficient evidence support the claim. Once justification is pleaded full particulars of the facts relied upon ought to be delivered in detail, See OBASUYI V. EZEIGHU (1991) 3 NWLR (PT. 181) 585 AT PAGES 594-595 and ACB V APUGO (1995) 6 NWLR part 399 page 65-CA. MOHAMMED MUSTAPHA, J.C.A.
THE AWARD OF DAMAGES LIES AT THE DISCRETION OF THE COURT
The law is trite that the award of damages lies at the discretion of the Court which in the exercise of such discretion will be guided by the applicable legal principles. Its objective basically is to compensate the aggrieved party for the damages, loss or injury suffered. The guiding principle is restitutio in interregnum. This principle envisages that a party which has been damnified by the act of the defendant which is called in question must be put in a position in which he would have been if he had not suffered the wrong for which he is now being compensated. In other words, the essence of awarding damages to an aggrieved party is to restore him as far as money can to the position he would have been if there had been no breach or injury. See NEPA VS. R.O. ALLI & ANOR (1992) 10 SCNJ 34; CAMEROON AIRLINES VS. OTUTUIZU (2011) 1 – 2 SC (PT. 111) 200. MOHAMMED MUSTAPHA, J.C.A.
INTERFERING WITH THE AWARD OF DAMAGES
It is generally trite that an Appellate Court will not interfere or disturb the trial Court’s assessment or award of damages unless it is manifest that the trial Court acted on a wrong principle of law or that the amount awarded is so high or so low as to constitute an erroneous estimate of damages. See the cases of ELF (NIG.) LTD VS. OPERE SILLO & ANOR (1994) 6 NWLR (PT.350) P.258; ALPHANSUS IBEANU & ANOR. VS. PETER A. OGBEIDE (1998) 12 NWLR (PT 576) P. 1; JOSEPH ONWU & ORS. V. EZEKIEL NKA & ORS.(1996) 7 SCNJ P.240 and (5) A.CB. LTD & ORS. VS. B. B. APUGO (2001) 2 SCNJ P.248. MOHAMMED MUSTAPHA, J.C.A.
MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of the Federal Capital Territory, Abuja, presided by Honorable Justice S. U. Bature, delivered on the 23rd of November, 2020.
Aggrieved by the decision, the Appellant filed its notice and grounds of appeal on the 24th of November, 2020 on the following grounds shorn of the particulars:
GROUNDS OF APPEAL
GROUND 1:
The trial Court erred in law and occasioned a miscarriage of justice when it improperly evaluated the evidence before the Court to hold that the 1st Respondent successfully proved his case in defamation against the Appellant.
GROUND 2:
The trial Court erred in law and occasioned a miscarriage of justice when it held that the defences of Justification and Qualified Privilege could not avail the Appellant.
GROUND 3:
The trial Court erred in law and occasioned a miscarriage of justice when it arbitrarily granted the reliefs sought by the 1st Respondent against the Appellant, particularly damages in the sum of
GROUND 4:
The judgment of the trial Court is against the weight of evidence.
From these grounds, the following issues were formulated for determination on behalf of the Appellant:
ISSUES FOR DETERMINATION
i. Whether the trial Court erred in law and occasioned a miscarriage of justice when it improperly evaluated the evidence before the Court to hold that the 1st Respondent successfully proved his case in defamation against the Appellant? (Distilled from Grounds 1 and 4 of the Notice of Appeal),
ii. Whether the trial Court erred in law and occasioned a miscarriage of justice when it held that the defences of Justification and Qualified Privilege could not avail the Appellant? (Distilled from Grounds 2 of the Notice of Appeal)
iii. Whether the trial Court erred in law and occasioned a miscarriage of justice when it arbitrarily granted the reliefs sought by the 1st Respondent against the Appellant, particularly damages in the sum of Eighty-Five Million Naira N85,000,000.00? (Distilled from Grounds 3 of the Notice of Appeal).
The three issues formulated on behalf of the 1st Respondent are exactly the same with those of the Appellant, except for the fact that they were couched differently.
The appeal will be decided on the issues formulated on behalf of the Appellant.
ISSUE ONE:
It is submitted for the Appellant that the trial Court failed to consider the totality of the evidence, thus occasioning a miscarriage of justice against the appellant. See ALAWIYE V OGUNSANYA (2004) 4 NWLR part 864 page 486; ESENOWO V UKPONG (1999) 6 NWLR part 608 page 611 and OTOP V EKONG (2005) 12 NWLR part 938 page 205.
It is contended that the trial Court erred in its determination by finding that the appellant published false statement to the 2nd Respondent, regarding the circumstances which led to the termination of the 1st Respondent’s appointment and that this submission is premised on the fact that the 1st Respondent was unable to establish his claim of defamation at the trial Court.
That the evidence placed before the trial Court conclusively demonstrated the fact that the 1st Respondent was indeed terminated from the Appellant’s employment as a direct result of his complicity in a fraudulent transaction which occasioned a loss of income to the Appellant.
It is further submitted that the trial Court failed to take into consideration the contents of Exhibit D8, the appellant’s internal memo dated 5th August, 2010 or the 1st Respondent’s corroboration of same in arriving at its erroneous decision and especially failed to take the 1st Respondent’s complicity in aiding the fraudulent transaction, which led to the termination of his appointment and eventual blacklisting, even though he was not found culpable for the fraudulent transaction.
That the trial Court selectively analyzed only Exhibit E and C5 to come to the conclusion that the 1st Respondent was not dismissed from the appellant’s employment for his culpability in any fraudulent transaction, on the sole basis that same was not expressly mentioned in his letter of termination, failing in the process to consider the trite position of the law that an employer is not mandated in law to give any reason for the termination of its employee’s employment. See OBANYE V UBN PLC (2018) 17 NWLR part 1648 page 37 and OFORISHE V NGC LTD (2018) 2 NWLR part 1602 35.
That even though the 1st respondent’s letter of termination did not state the reason for his termination, it was clear that his employment was terminated; his admission during cross-examination bears that out. See CENTRAL BANK OF NIG. V OLAYATO ARIBO (2018) 4 NWLR part 1608 page 130.
It is further submitted for the Appellant that Exhibits C5, D4 and F11 were written on compassionate grounds in response to the 1st respondent’s appeals to the Appellant to assist in removing his name from the 2nd respondent’s black book, for the simple reason that the Appellant having discovered that it had inadvertently written that the 1st Respondent’s employment was ‘dismissed’ and not ‘terminated’ in its report to the 2nd Respondent i.e. Exhibit D8; the Appellant acceded to the pleas of the 1st Respondent and appealed to the 2nd Respondent on compassionate grounds to delist the 1st Respondent from its black book on the basis that he was complicit but not culpable in the fraudulent transaction.
It is contended that in an action for defamation, it is not enough to establish proof of publication by evidence, or that it was read, it must be established that the defendant published the alleged defamatory statement to any other persons other than the person injured by it. See NSIRIM V NSIRIM (1990) 3 NWLR part 138 page 285. That it was insufficient that the appellant’s alleged defamatory publication was read by the 1st Respondent’s witness, if it was not published by the appellant to them. See ILOABACHIE V ILOABACHIE (2005) 13 NWLR part 695 page 736 and GUARDIAN NEWSPAPERS LTD V AJEH (2011) 10 NWLR part 574 page 588.
It is submitted for the 1st respondent in response that not only did the Appellant fail to show the evidence that was not properly evaluated but the trial Court properly evaluated both oral and documentary evidence. See SKETCH PUBLISHING CO LTD V ALHAJI AJAGBEMOKEFERI (1989) 1 NWLR part 100 page 678.
That the Appellant made false publication to the 2nd Respondent wherein the Appellant referred to the 1st Respondent as a dismissed staff and a fraudulent individual, consequently, the publication lowered the 1st Respondent in the estimation of the 2nd Respondent who blacklisted the 1st Respondent on account of the said false publication, learned counsel referred the Court to testimonies of PWS 2 and 4 at page 662 of the record and UBANI V STATE (2003) 12 SCNJ 111 and MAGAJI V NIGERIAN ARMY (2008) 8 NWLR part 1089 page 338.
It is further submitted that apart from the1st Respondent, the Appellant published the defamatory statement to the 2nd Respondent, PWS2 and PW4, and the trial Court evaluated these uncontroverted evidence before arriving at the conclusion it did.
That at trial the appellant raised the defense of justification, which means admission that the publication was true of the 1st Respondent. See OJUKWU V NNORUKA (2000) 1 NWLR part 348 and AYENI V ADESINA (2007) ALL FWLR part 370 page 1451.
It is further submitted that Exhibit D8 which sought to establish dishonesty as the reason for the termination of the Appellant’s employment was disowned and termed erroneous by Exhibit F11, and so Exhibit D8 cannot be relied on as an assertion of truth, and that contrary to the contention of the Appellant the 1st Respondent did not accede to the truthfulness of Exhibit D8 during cross-examination. See ANDREW AYEMWENRE V FESTUS EVBUOMWAN (2019) LPELR-47312-CA.
That the reason for the termination of the 1st Respondent’s employment is in line with the terms of contract given to the 1st Respondent and not dismissal for fraud as falsely published by the appellant.
In reply, it is submitted that the 1st Respondent conceded to irrefutable facts deduced from the Appellant’s disciplinary committee report in the internal memo and that there was no response to the claim that the 1st Respondent’s witness admitted the alleged defamatory report was communicated by the 1st Respondent and not the appellant.
Learned counsel further repeated the arguments in the main brief, with emphasis, contending that the Appellant was well within its right to terminate the 1st Respondent’s employment, even though he was complicit in a fraudulent transaction. See MOHAMMED V STATE (2018) 5 NWLR part 1613 page 540.
RESOLUTION OF ISSUE ONE:
Generally speaking, the purpose of evaluation of evidence is to enable a judge solely to arrive at a just determination of a case. A party who attacks a trial Court’s evaluation of evidence must examine the totality of evidence adduced and evaluated by the Court, not piecemeal. See Odunukwe v. Ofomata (1999) 6 NWLR (pt. 602) 416 at 425. It is not enough for counsel to merely allege an error without clearly demonstrating the error in the evaluation of evidence. The objective is to enable this Court to clearly see how the evaluation was carried out by that Court, failing which the allegation will count for nothing.
The essential ingredients of the tort of defamation which a plaintiff must prove in order to succeed in his claim 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. See UNION BANK OF NIGERIA LTD. V. OREDEIN (1992) 6 NWLR (Pt. 247) P. 355.
For the purpose of defamation, publication means the act of making a defamatory statement known to any person or persons other than the Plaintiff himself. It is not required that there should be any publication in the popular sense of making a statement public. A private and confidential communication to a single individual is sufficient. Also, it need not be published in the sense of being written or printed as actions as well as words may be defamatory. See BEKEE & ORS V BEKEE (2012) LPELR-21270-CA.
It is very important not to lose sight of the fact that defamation generally is any imputation which tends to lower a person in the estimation of right thinking men or causehim to be shunned or avoided or to expose him to hatred, contempt or ridicule or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business. See BENUE PRINTING AND PUBLISHING CORPORATION VS ALHAJI GWAGWADA (1989) 4 NWLR (PT 116) 439 and OKOLIE VS MARINHO (2006) 15 NWLR (PT 1002) 316.
The question as to whether the words complained of are in their natural and ordinary meaning defamatory is a question of fact. What is important is what the words convey to an ordinary person, it is not a question of construction in the legal sense. What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meanings of the words. Reference may be made to few cases in which the test was applied to publication relating to termination of appointment. See Lewes v. Daily Telegraph Ltd. (1964) A.C. 234 at page 258.
In Lord Williams Nevil v. Fine Art General Insurance Co. Ltd. (1877) A.C. 68, the question was whether the words: “the agency of Lord Williams Nevil at 27 Charles Street, St. James’ Square, has been closed by the directors” were defamatory of the agent.
The passage complained of occurred in a business letter sent by the insurance company to their customers.
In Beswick v. Smith (1907), 24 T.L.R. 169, the alleged libel, written by the employers of the plaintiff, was: “H. Beswick is no longer in our employ. Please give him no order or pay him any money on our account.” The issue in Morris & Anor v. Sandless Universal Products (1954) 1 All E. R. 47 was whether the words “We wish to bring to your notice the fact that we have dismissed (the plaintiff) from our employ, he having been our representative in your area, and finally, that he has now no connection whatsoever with our company,” were capable of conveying defamatory meaning.
In this case, Exhibit F12, at page 655 of the record of appeal, shows the appellant made a publication to the 2nd respondent, referring to the 1st respondent as a dismissed and fraudulent staff. That publication was found by the trial Court to have lowered the 1st respondent in the estimation of right thinking members of the society and the 2nd respondent, for good reason, because it led the 2nd Respondent, the regulatory body of the appellant to blacklist the 1st Respondent.
This much is evident in the testimonies of the PWS 2 when he stated during cross-examination at page 663 of the record that:
“In the past, we were close but after I heard issues relating to relating to the allegation of fraud and other allegations I felt uncomfortable and I severed all relationships with him and I stopped him from coming to my office…”
When he was asked earlier on the same page that:
“…was it your friend that showed the letter to you? He answered:
“Initially he wasn’t the one who showed it to me. But when I asked I learnt about it and asked him he showed it to me.”
The trial Court came to the conclusion that:
“…it is my humble view that apart from the claimant and the defendant there are others who also read the defamatory statement”; those others are PWS 2 and 4. It is therefore uncharitable, to say the least, to call the findings of the trial Court ‘sentimental’ in the circumstances.”
It is equally important to also note, as submitted for the 1st respondent that at the trial, the appellant set up a defense of justification, which in itself is an admission the appellant made the publication as alleged, because it is true. In response to which learned counsel for the appellant admitted the publication to the 2nd respondent, but contended it did not communicate to the 1st respondent’s witnesses.
Justification is a defense to establish that the imputation in respect of which the appellant was sued is substantially true. It is a defense if the appellant can show that the statement made is true even if the statement is made maliciously; “the Law will not permit a man to recover damages in respect of an injury to a character which he does not possess.” See ASUU & ORS V OGUNSANWO (2014) LPELR-23252-CA.
In the circumstances therefore, the argument to the effect that the 1st respondent did not prove the ingredients of publication and falsehood on the one hand, and the plea of justification on the other amount to speaking from both sides of the both, to say the least and it is for such reasons that the Court frowns at a party approbating and reprobating at the same time. See LONGE v. FBN PLC (2006) 3 NWLR (pt. 967) 250.
At the risk of repetition, it has to be pointed out that, the question of whether the appellant directly made the statement to PWS 2 and 4 counts for little in the grand scheme of things, as far as defamation is concerned, what matters is its reduction into writing and delivery to any person other than the 1st Respondent himself, and clearly the statement was read by the 2nd and 4th respondents, as a result of which the estimation of the 1st Respondent was lowered.
The Appellant in the statement in issue made to the 2nd Respondent referred to the 1st Respondent as a dismissed and fraudulent person, when the 1st Respondent, even by the Appellant’s own admission was not dismissed, nor found guilty of fraud as a consequence of the publication the 1st Respondent was blacklisted by the 2nd respondent.
The Appellant indeed went as far as requesting the 2nd respondent to remove the name of the 1st Respondent from the blacklist in Exhibit 5, and in Exhibit D 4, it took the trouble of explaining that the inclusion of the name of the 1st Respondent in the report of dismissed staff on grounds of fraud was inadvertent as he was not found culpable by the disciplinary committee and in Exhibit F11, the appellant once again published in its internal memo that the 1stRespondent’s name should not have been sent to the 2nd Respondent for black listing.
Clearly, these exhibits show that the appellant admitted that the submission of the 1st Respondent’s name as a dismissed and fraudulent staff is untrue, that being the case, one is at a loss as to the contention of learned counsel for the Appellant that the trial Court was sentimental and failed to evaluate the evidence leading it reach a wrong conclusion as a consequence. This contention to say the least is uncharitable.
It is also clear to this Court that the 1st respondent did not and could not have corroborated Exhibit 8 because it is a document, which he did not make, as such oral testimony, as rightly pointed out cannot vary the contents of that document or for that matter Exhibits C, C5, D4 and F11 as the case may be. The trial Court’s finding that the contents of Exhibit D8 submitted to the 2nd Respondent was false cannot be faulted.
I have earlier said, the contention that the Exhibits C5, C4 and F11 were made on compassionate grounds amounts to speaking from both sides of the mouth, it does not add up at all in the considered opinion of this Court, if anything it only helps to reinforce the argument that the 1st respondent was not dismissed for fraud, and his name ought to have been sent to the 2nd Respondent for blacklisting.
The 1st Respondent’s employment was indeed terminated in accordance with terms of the contract in paragraph 2(vi) of exhibit C at page 451 of the record and that explains the payment of all his entitlement on termination, otherwise he would not have been entitled to any benefits if he were dismissed for fraud, as clause 11.2.6 of Exhibit D stipulates.
It is for these reasons that I now resolve this issue in favour of the Respondent, against the appellant.
ISSUE TWO:
Whether from the circumstances of the case, the trial Court was not right when it held that the appellant is not entitled to the defense of justification and qualified privilege.
It is submitted that the appellant furnished the trial Court with sufficient facts in the statement of defense as well as evidence to prompt the Court on the reliance on justification and qualified privilege in line with the decision in OLOGE V UKAEJE (1998) 12 NWLR part 576 page 23.
That as a matter of fact the appellant led evidence on the 2nd respondent’s review of operational guidelines for blacklisting, Exhibit E, to explain why it was bound by law to report the 1st respondent’s complicity in fraud to the 2nd respondent, learned counsel referred the Court to Exhibit F12. See C. C. CONST CO. LTD V OKHAI (2003) 18 NWLR part 851 page 79.
That the trial Court erred in law when it incorrectly held that the defense did not avail the appellant because they were not expressly pleaded and evidence was not led on same, thereby allowing the appellant to suffer the demands of strict technicalities and occasioning grave miscarriage of justice.
It is submitted in response that the trial Court correctly found that the appellant did not raise the defense of justification and qualified privilege in its pleadings, that the defense is a special defense which must be pleaded and proved. See ACB V APUGO (1995)6 NWLR part 399 page 65-CA.
That the defense of qualified privilege does not avail a publisher of a defamatory statement actuated by malice, especially as the Appellant did not observe the guidelines in paragraph 5.0 of Exhibit E which set out the conditions for blacklisting and that even DW1 stated during cross-examination that the committee did not observe the guidelines. See UKO V MBABA (2001) 4 NWLR part 704 page 460 and NTA V BABATOPE (1996) 4 NWLR part 440 page75.
RESOLUTION OF ISSUE TWO:
The defense of justification is a shield against an action for defamation, to avoid liability in this case, it is not supposed to be raised casually without serious introspection. See A.I.B. v. ASAOLU (2006) 5 WRN pg.15 at Pg.69.
Defamation concerns damage to the character of the person defamed whether in libel or slander, however, where evidence discloses that the persons defamed is in fact fraudulent or a crook and his character is successfully impugned, his claim fails and the defense of justification is established because a true statement written and said about another person can never be defamatory. The written publication must be false and without lawful justification for it to be defamatory. See SKETCH PUBLISHING CO. LTD v. AJAGBEMOKEFERI (1989) 1 NWLR Pt.100 Pg.678; ESENOWO v. UKPONG & ANOR (1999) 6 NWLR Pt.608 and ILOABACHIE v. ILOABACHIE (2005) 5 SCNJ 264.
Even though the two defenses of justification and qualified privilege have a lot in common, so much so they are intertwined, they both require different considerations. So, with all due respect, it is erroneous to roll them into one, in the hope of making a killing, one way or the other.
A defendant who raises a defense of qualified privilege has the duty of showing that there exist a common interest between himself, the maker of the statement and the person to whom it is communicated. On the other hand, in order to successfully plead justification, the facts relied upon must be true. In the circumstance here, the fact whether or not the allegations of the defendant in the offending publication are true is relevant only when the plea of justification is being considered. The defense of justification can be raised disjunctively or conjunctively where the latter approach is adopted it is in the alternative. Both defenses or either may avail the defendant. See A.C.E. JIMONA V. NEC LTD.(1966) 1 ALL NLR 122, 124 AND AGIDIGBI V. AGIDIGBI (1996) 6 NWLR (PT. 454) 300, 313.
The learned trial Judge found that the appellant failed to plead, much less prove justification, counsel is expected to lead sufficient evidence support the claim. Once justification is pleaded full particulars of the facts relied upon ought to be delivered in detail, See OBASUYI V. EZEIGHU (1991) 3 NWLR (PT. 181) 585 AT PAGES 594-595 and ACB V APUGO (1995) 6 NWLR part 399 page 65-CA.
Most importantly, the appellant admitted Exhibits C5, D4 and F11 wherein it was stated that the 1st Respondent was not culpable of fraud, and that his name was submitted to the 2nd Respondent by error or inadvertence. Furthermore, Exhibit C and B6 showed 1st Respondent was not dismissed for fraud as alleged. Now, once it is established that the publication to the 2nd Respondent was inadvertent or in error, the defense of justification collapses like a pack of cards.
A plea of justification to allegations of libel or slander on the ground of truth must be pleaded specially. It cannot be pleaded without good reason, to expect that it will be proved. It is the duty of counsel not to put a plea of justification on the record unless he has clear and sufficient evidence to support it. If the defense is pleaded upon insufficient grounds, that in itself is proof of evidence of malice. A plea of justification must be strictly proved at the trial, that is what informed the finding of the trial Court at page 752 of the record of appeal that:
“…that the 1st defendant is covered by the defense of justification and qualified privilege, but sadly same were not proved and no evidence adduced at the trial to that effect. In that regard, it is settled that address of counsel however brilliant it is, cannot take the place of evidence.”
The Appellant’s contention that the submission of the 1st Respondent’s name to the 2nd respondent for blacklisting was done in compliance with mandatory provisions of the guidelines falls flat on its face in view of the fact that the appellant stated in another breathe that the name was submitted inadvertently. Furthermore, the appellant, contrary to its contention, failed to comply with the procedures for blacklisting as set out in Exhibit E, particularly paragraph 5.0, which among other things required that the decision of the committee be communicated to the 1st Respondent; it was not. It also required at paragraph 6.0 to notify the 1st Respondent in writing; it did not. For these reasons, one cannot help but conclude that failure to comply with Exhibit E is a clear case of malice. See COMPARE AMIEKHAL V OKWILAGE (1962) 2 ALL NLR.
The defense of qualified privilege cannot avail the Appellant in the circumstances, due to the fact that the appellant did not plead the defense and because its report to the 2nd Respondent is actuated by malice. It is not about technicality as contended for the appellant.
It is for these reasons that I now resolve this issue in favour of the 1st respondent, against the appellant.
ISSUE THREE:
Whether the Court erred in law and occasioned a miscarriage of justice when it arbitrarily granted the reliefs sought by the 1st respondent against the bank, particularly damages in the sum of eighty-five million naira.
It is submitted for the Appellant that if the trial Court had ab initio properly evaluated the evidence before it, it would have come to the irresistible conclusion that the 1st Respondent failed to prove defamation, and damages would not have been necessary. See CONCORD PRESS NIG. LTD V ASAOLU(1999) 10 NWLR part 621 page 123.
That the defamatory statement complained by the 1st Respondent was in fact true, as even the 1st respondent admitted that he was subject to disciplinary hearing over fraudulent activities and so it was justified to published the report, as such damages awarded cannot be justified.
It is further submitted that even if the 1st Respondent had a valid claim in defamation, the relevant factors which ought to have been considered in assessing damages were not considered. See GUARDIAN NEWSPAPERS LTD V AJEH (2011) 10 NWLR part 574 page 594 and OTOP V EKONG (2006) 9 NWLR part 533 page 569.
That the trial Court did not provide justification on the face of the judgment, on the basis of which it awarded general damages in the sum of Eighty-Five Million Naira to the 1st Respondent, when in fact the 1st Respondent failed to lead any evidence to justify his entitlement to damages.
It is submitted for the 1st Respondent in response that the award of damages is not arbitrary and that the Court is free to form its own estimate of harm, especially as once libel is established, the victim is entitled to general damages as compensation. See OJUKWU V NNORUKA (2000) 1 NWLR part 641 page 348 and UYO V NIGERIAN NATIONAL PRESS LTD (1974) NSCC vol. 9 page 304.
That the trial Court took into account all the adversities suffered by the 1st Respondent in awarding damages, which is not excessive and the award of damages is not too high or based on wrong principles. See ODOGU V ATT. GEN. OF THE FED. (1996) 6 NWLR part 456 page 508.
RESOLUTION OF ISSUE THREE:
The law is trite that the award of damages lies at the discretion of the Court which in the exercise of such discretion will be guided by the applicable legal principles. Its objective basically is to compensate the aggrieved party for the damages, loss or injury suffered. The guiding principle is restitutio in interregnum. This principle envisages that a party which has been damnified by the act of the defendant which is called in question must be put in a position in which he would have been if he had not suffered the wrong for which he is now being compensated. In other words, the essence of awarding damages to an aggrieved party is to restore him as far as money can to the position he would have been if there had been no breach or injury. See NEPA VS. R.O. ALLI & ANOR (1992) 10 SCNJ 34; CAMEROON AIRLINES VS. OTUTUIZU (2011) 1 – 2 SC (PT. 111) 200.While the primary object of the award of damages is to compensate the aggrieved party for the harm done to him, a second possible object is to punish the offending party for its conduct in causing the hurt or loss. This can be achieved by awarding, in addition to the normal compensatory damages, other damages which go by various names, such as, exemplary damages, aggravated damages, punitive damages, vindictive damages, etc and this comes into play whenever the conduct of the defendant is manifestly outrageous to merit such punishment. This includes where the act or omission discloses malice, fraud, cruelty, insolence, insensitive conduct or flagrant disregard of the law. See ELIOCHIN (NIG) LTD VS. MBADIWE (1986) 1 NSC 42.
In this case, the Appellant’s publication which was found to be false against the 1st Respondent, on account of which he was blacklisted by the 2nd Respondent caused him embarrassment and loss of his job with the Heritage bank. This situation is compounded by the fact that the Appellant while submitting the name of the 1st Respondent to the 2nd Respondent for blacklisting failed to comply with Exhibit E, the guidelines for submitting a person’s name for blacklisting.
The Appellant in the face of all these, admitted that the name of the 1st Respondent was submitted to the 2nd Respondent in error or inadvertently, yet in a volte-face claimed justification, preposterous as it may sound.
It is clear to this Court that the trial Court took into account all the surrounding circumstances and adversities suffered by the 1st Respondent in awarding damages.
It is generally trite that an Appellate Court will not interfere or disturb the trial Court’s assessment or award of damages unless it is manifest that the trial Court acted on a wrong principle of law or that the amount awarded is so high or so low as to constitute an erroneous estimate of damages. See the cases of ELF (NIG.) LTD VS. OPERE SILLO & ANOR (1994) 6 NWLR (PT.350) P.258; ALPHANSUS IBEANU & ANOR. VS. PETER A. OGBEIDE (1998) 12 NWLR (PT 576) P. 1; JOSEPH ONWU & ORS. V. EZEKIEL NKA & ORS.(1996) 7 SCNJ P.240 and (5) A.CB. LTD & ORS. VS. B. B. APUGO (2001) 2 SCNJ P.248.
Clearly, the trial Court acted correctly in this case, as such this Court has no reason to disturb the finding of the trial Court. Accordingly, this issue is resolved in favour of the 1st Respondent against the Appellant.
Having resolved the three issues that call for determination in favour of the 1st Respondent against the Appellant, the appeal fails for lack of merit, and it is accordingly dismissed. Judgment of the trial Court is hereby affirmed.
Cost of N50,000 is awarded in favour of the 1st Respondent, against the Appellant.
PETER OLABISI IGE , J.C.A.: I agree.
KENNETH IKECHUKWU AMADI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, Mohammed Mustapha, JCA. I agree with the reasoning therein and the conclusion reached. This appeal lacks merit. I also dismiss it.
Appearances:
B. B. Lawal Esq with him, T. J. Alufa For Appellant(s)
I. G. Ogugu, Esq. with him, S. A. Ajayi – for 1st Respondent.
Nonye Enwezor – for 2nd Respondent For Respondent(s)
